Randall v. Metropolitan Life Insurance Company et al, No. 3:2015cv04343 - Document 44 (N.D. Cal. 2017)

Court Description: ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT by Judge Jon S. Tigar granting 35 Motion for Summary Judgment; denying 36 Motion for Summary Judgment. (wsn, COURT STAFF) (Filed on 2/6/2017)
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Randall v. Metropolitan Life Insurance Company et al Doc. 44 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DEBORAH RANDALL, Plaintiff, 8 v. 9 METROPOLITAN LIFE INSURANCE COMPANY, et al., 11 United States District Court Northern District of California 10 Defendants. 12 13 14 15 16 17 18 19 20 21 22 Case No. 15-cv-04343-JST ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Re: ECF Nos. 35, 36 Before the Court are Plaintiff’s and Defendants’ cross-motions for Summary Judgment. ECF Nos. 35, 36. The Court will grant Defendants’ motion and deny Plaintiff’s motion. I. BACKGROUND Plaintiff Deborah Randall (“Randall”) brought this action under section 502(a)(1)(B) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), seeking to recover short-term disability, long-term disability, and related health, dental, vision, and life insurance benefits under her Plan administered by Metropolitan Life Insurance Company (“MetLife”). ECF No. 1. A. Randall’s Work History and Alleged Disability Both parties agree that Randall had a successful career and at the time of onset for her alleged disability was employed by Verizon Wireless as a facilities network engineer. ECF No. 37 23 at 5. Randall’s DOT title was “Supervisor, Network Control Operators,” which is a “light work” 24 job. ECF No. 35-6 at 350. According to the DOT, Randall’s job required her to be able to lift, 25 26 27 carry, push, and pull 20 lbs. occasionally and up to 10 lbs. frequently, and walk and/or stand frequently. Id. MetLife also verified that “[t]he light job duties of a facilities network engineer include functional requirements of: designing and implementing facilities for the transport and 28 Dockets.Justia.com 1 switching of long distance traffic, maintaining path, switch, and vendor diversity where 2 economically justified, devises routing schemes as may be required to prevent blocked calls,” as 3 well as various supervisory and participatory activities, but “[t]here is no lifting or heavy physical 4 activity involved,” and Randall sat “in a cubicle.” ECF No. 35-6 at 338, 345. Randall suffers from “a longstanding condition of chronic and severe mid-back pain,” 6 which has progressed over time. ECF No. 36 at 6. She has a history of breast cancer and has 7 received diagnoses of anterolisthesis, cervical disc disease, osteoporosis, lupus, myofascial pain 8 syndrome, anxiety, and depression. See ECF No. 36. Randall now alleges that her back pain is 9 exacerbated by sitting, standing, reaching, or keyboarding, and that her pain, fatigue, and impaired 10 concentration due to pain medication make it impossible for her to perform the essential functions 11 United States District Court Northern District of California 5 of her job. ECF No. 36 at 6-7. 12 Randall went on disability leave as of April 15, 2013 and requested disability benefits on 13 April 19, 2013. See ECF No. 36 at 6; ECF No. 35-7 at 266. MetLife approved Short Term 14 Disability benefits for Randall for the period between April 15, 2013 through May 6, 2013, but 15 communicated to Randall on June 15, 2013 that benefits would not be approved beginning May 7, 16 2013. ECF No. 36-3 at 98. Randall returned to work on July 15, 2013 and continued to work 17 through August 7, 2013. ECF No. 35-6 at 337-38. She then worked partial hours for the period of 18 August 8, 2013 through August 30, 2013 and went back out of work completely as of August 31, 19 2013. Id. Randall submitted claims for both short-term and long-term disability benefits under 20 her Disability Plan, but MetLife denied her claims. 21 B. Randall’s Benefits Plan 1. 22 Short Term Disability 23 Randall’s plan provided for Short Term Disability benefits for up to 26 weeks if she was 24 found to be totally disabled. ECF No. 36-2 at 21. A “Total Disability” is defined under the plan 25 27 as follows: You are considered totally disabled under the Plan for purposes of [Short-Term Disability] benefits if, as a result of illness, injury or pregnancy, MetLife determines that you meet all of these conditions: 28 You are absent from work for at least 8 full consecutive calendar days 26 2 beginning with and including your first day absent from work because you are unable to perform for any Employer the Essential Functions of Your Occupation1 for which you are qualified by training, education or experience; and 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 You have provided to MetLife objective medical evidence that sufficiently evidences, as determined by MetLife, that you cannot perform the Essential Functions of Your Occupation for which you are qualified by training, education or experience for any Employer. Your ability to get to and from the work place is not considered when determining whether you cannot perform the Essential Functions of Your Occupation if driving is not an Essential Function of Your Occupation . . . You are receiving Appropriate Care and Treatment and complying with the requirements of such treatment; and You are unable to earn more than 80% of your pre-disability earnings at Your Occupation; and You are not engaged in any job/occupation, including self-employment, during the [Short-Term Disability] application process or while you are receiving [Short-Term Disability] benefits; and All information or documents to be considered has been received during the Initial Administration Period of your . . . claim. ECF No. 36-2 at 18. The Plan stated that Randall was “responsible for proving [her] disability claim.” Id. It instructed that she “must return a signed authorization form to MetLife allowing [her] Physician(s) to release objective medical evidence to substantiate [her] condition and 18 19 ongoing treatment, as determined by MetLife,” and that benefits would automatically “be denied if [she or her] doctor or qualified practitioner fails to provide objective medical evidence in support 20 21 22 of [her] claim within the time period specified by MetLife.” Id. The Plan specifically stated that “[a] physician’s note stating” that Randall “should not work is not objective medical evidence sufficient to prove [her] claim.” Id. The Plan provided some guidance as to objective medical 23 24 Under the terms of the Plans at issue, “Your Occupation” is defined as “[t]he employment activity that you regularly performed at Verizon Wireless immediately prior to the disability for which you are receiving benefits under this Plan.” ECF No. 36-2 at 45. In addition, the Plans provide that: “Your Occupation is not limited to the specific position you held with Verizon Wireless, but encompasses similar positions/activities that could be performed for another employer, based on job descriptions provided by the employer or included in the most current volume of the U.S. Department of Labor’s Dictionary of Occupational Titles.” ECF No. 36-2 at 45. 3 1 25 26 27 28 1 2 3 4 5 6 7 evidence: Objective medical evidence is necessary to clinically substantiate your condition and includes, but is not limited to: 8 9 10 United States District Court Northern District of California 11 A diagnosis of your medical condition. Objective findings such as test results, X rays or operative notes supporting your claim for benefits. Any other information related to your individual circumstances that MetLife determines is necessary to decide whether your claim should be approved or denied. You and/or your Physician(s) may be required to provide additional information to substantiate ongoing treatment and/or evidence to support your continuing claim for short-term disability benefits. The costs associated with providing this information are your responsibility. 12 ECF No. 36-2 at 19. In determining whether or not a plan participant has submitted sufficient 13 objective medical evidence, MetLife considers “documents submitted by” the individual and/or 14 that individual’s physician, “such as lab reports, medical testing reports, examination notes, and 15 the like, as well as any other Relevant Documents MetLife deems necessary . . . including, but not 16 limited to, any reviews or examinations conducted by Physician(s) employed or engaged by 17 MetLife. In making its determination . . . MetLife may also attempt to contact the Physician(s) 18 involved in the diagnosis and treatment of [the individual’s] medical condition. Although MetLife 19 may attempt to contact the Physician(s), it is [the individual’s] responsibility to provide MetLife 20 with the objective medical evidence required . . . Failure to [do so] will result in the denial of” the 21 individual’s claim. Id. 22 23 2. Long Term Disability The Plans’ summary plan description (“SPD”) explains that “You will be eligible for LTD 24 [Long Term Disability] benefits if you are continuously disabled and unable to return to work after 25 receiving [Short-Term Disability] benefits for 26-weeks—provided you are certified as disabled 26 under the LTD benefit component of the Managed Disability Plan and meet all other requirements 27 detailed below.” ECF No. 36-2 at 27. The relevant sections of the Plan define LTD as follows: 28 You are considered disabled if MetLife determines that you have experienced, on 4 1 2 or after the effective date of your LTD coverage under the LTD benefit component of the Managed Disability Plan, a significant change in your physical or mental condition as a result of accidental injury, sickness, mental illness, substance abuse or pregnancy. 3 4 5 6 7 8 9 Under the LTD benefit component of the Managed Disability Plan, an employee is considered to be “disabled” when the employee is absent from work because of an impairment for which there is sufficient objective medical evidence that supports: For the first 24 months beginning with the LTD Effective Date: 10 The employee cannot perform the Essential Functions of his or her job at Verizon Wireless. The employee cannot perform the Essential Functions of his or her occupation for which he or she is qualified by training, education or experience for any Employer. United States District Court Northern District of California 11 For the period after the first 24 months beginning with the LTD Effective Date: 12 13 The employee cannot perform the Essential Functions of any occupation for which he or she is qualified by training, education, or experience for any Employer. 14 During the period of disability, the employee must: 15 16 17 18 19 20 21 22 Be receiving Appropriate Care and Treatment and complying with the requirements of such treatment; For LTD benefits, during the qualifying period and the next 24 months of sickness or accidental injury, the employee must not be able to earn more than 80% of the employee’s pre-disability earnings at the employee’s own occupation for any employer in the employee’s local economy. After the expiration of the qualifying period and the next 24 months, the employee must not be able to earn more than 60% of the employee’s pre-disability earnings from any employer in the employer’s local economy at any Gainful Occupation for which the employee is reasonably qualified taking into account the employee’s training, education and experience. 23 ECF No. 36-2 at 27-28. The Plan also speaks to “Disability Due to Mental or Nervous Disorders 24 or Diseases, Neuromusculoskeletal and Soft Tissue Disorders, Chronic Fatigue Syndrome and 25 Related Conditions.” ECF No. 36-2 at 31. The Plan limits benefits for disability caused by mental 26 or nervous disorders or neuromusculoskeletal and soft tissue disorders to a maximum of 24 27 months: 28 If an employee is disabled due to one or more of the conditions set forth below, 5 1 MetLife will limit the employee LTD benefits to a lifetime maximum equal to the lesser of: 2 3 4 24 months; or The maximum benefit period. 5 Employee LTD benefits will be limited as stated above for the following conditions: 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 A Mental or Nervous Disorder or Disease with the exception of: --Schizophrenia; --Dementia; or --Organic brain disease. Neuromusculoskeletal and soft tissue disorders including, but not limited to, any disease or disorder of the spine or extremities and their surrounding soft tissue; including sprains and strains of joints and adjacent muscles, unless there is definitive objective medical evidence of: --Seropositive Arthritis; --Spinal Tumors, Malignancy, or Vascular Malformations; --Radiculopathies; --Myelopathies; --Traumatic Spinal Cord Necrosis; or --Musculopathies. Chronic Fatigue syndrome and related conditions. Mental or Nervous Disorder or Disease means a medical condition which meets the diagnostic criteria set forth in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders as of the date of the employee’s disability. A condition may be classified as a Mental or Nervous Disorder or Disease regardless of its cause. 20 ECF No. 36-2 at 31. Randall’s plan also indicates, however, that the “certificate of insurance” 21 governs the determination of her Long Term Disability benefits. ECF No. 38 at 7. The certificate 22 of insurance states: 23 24 25 26 27 28 Disabled or Disability means that, due to Sickness or as a direct result of an accidental injury: You are receiving Appropriate Care and Treatment and complying with the requirements of such treatment; and You are unable to earn: During the Elimination Period and the next 24 months of Sickness or accidental 6 injury, more than 80% of Your Predisability Earnings at Your Own Occupation from any employer in Your Local Economy . . . 1 2 ECF No. 36-2 at 65. The certificate also requires the claimant to submit all medical information 3 that MetLife “may reasonably require to document” the claimant’s disability. Id. at 86.2 4 C. 5 1. 6 7 8 9 Medical Evidence and Short Term Disability Claim April - July 2013 In April 2013, when Randall first determined that she could no longer work due to her pain, she was treated by her primary care physician, Dr. Amanda Camposagrado, an internist. See ECF No. 36-2 at 113-116. Randall saw Dr. Camposagrado for a visit on April 16, 2013. ECF No. 36-3 at 41. Dr. Camposagrado noted that while Randall self-reported her pain as “10/10,” tests provided an “[u]nremarkable MRI of the thoracic spine, with stable very slight levoconvex 11 United States District Court Northern District of California 10 curvature.” Id. She stated that while Randall was “reporting pain,” she was “able to move about 12 without pain.” Id. at 43. She explained that Randall’s back pain was “of unclear etiology,” that 13 her “MRI was unrevealing,” and that she “suspect[ed]” the problem was “musculoskeletal.” Id. 14 She noted that a “[o]ne week work-excuse [was] given,” and that she advised Randall “to avoid 15 laying for prolonged periods during the day and get up out of bed and remain active in day to day 16 activities as tolerated.” Id. In further notes from the visit, Randall’s “problem list” remarked that 17 she had experienced “[r]ecurrent episodes of midback pain flares since 1982.” Id. at 44. 18 Amir Badawi, M.D., saw Randall on April 17, 2013 for back pain. ECF No. 36-3 at 48. 19 Dr. Badawi noted that “[t]he patient wants to go on disability and says she [] will be addressing 20 this issue with her PCP tomorrow.” ECF No. 36-3 at 48. He stated that “Examination of the back 21 shows no gross deformities. There is some Pigmentation over the mid part of the vertebral column 22 23 2 24 25 26 27 28 With regard to her Long Term Disability claim, Randall argues that since the governing certificate of insurance does not state that objective evidence is required to establish eligibility for LTD benefits, see ECF No. 36-2 at 13, that language in the SPD does not control, ECF No. 38 at 7. To support this proposition, Randall cites to Pritchard v. Metro. Life Ins. Co., 783 F.3d 1166, 1171 (9th Cir. 2015), which held that the controlling MetLife certificate of insurance did not provide for any discretion to MetLife, and therefore a de novo standard of review applied despite the presence of discretionary language in the SPD. Id. The dispute is irrelevant here, however, because upon a stipulated de novo review the Court concludes Randall has not submitted sufficient evidence of disability to establish that MetLife erred in denying her short term benefits during the 26-week elimination period. 7 1 t. The examination is confusing as at times palpation of the lower thoracic and upper lumbar 2 vertebrae causes pain but other times the patient says that she feels better when the area is 3 palpated.” Id. at 50. He noted that MRIs and Xrays had not shown any abnormalities. Id. at 51. 4 Randall had another visit with Dr. Camposagrado on April 22, 2013. ECF No. 36-3 at 30. 5 Dr. Camposagrado noted that Randall “reports she is taking Vicodin from her friend” and “that she 6 doesn’t have enough Norco.” Id. at 32. She “[r]eports she is afraid she will lose her job and that 7 she can’t work because of her pain. She reports she needs to be on disability.” Id. She was 8 advised not to take her friend’s Vicodin. Id. Dr. Camposagrado described Randall as “[v]ery 9 anxious,” and “walking around the room, rubbing her mid back.” Id. at 34. On April 24, 2013, Dr. Camposagrado explained that she “again attempted to reassure 11 United States District Court Northern District of California 10 Patient that MRI of T-spine did not show any concerning abnormalities to account for her mid 12 back pain. However, did advise to obtain Bone scan as previously ordered. . . . Will give her one 13 week extension for her time off; but again emphasized to her that no abnormalities on MRI to 14 justify long term disability. FMLA form completed . . . Also recommended that she go to chronic 15 pain group visits.” Id. at 36. Dr. Camposagrado spent a “total of 40 minutes” with Randall “and 16 more than 50% of the time spent on counseling and coordinating care.” Id. 17 Dr. Camposagrado completed a Certification of Health Care Provider for Employee’s 18 Serious Health Condition form for Randall and UC Davis Medical Group faxed it to MetLife on 19 April 25, 2013. ECF No. 36-2 at 113-116. That form stated Randall was unable to work because 20 of “an acute worsening of condition” between April 16, 2013, and April 30, 2013. Id. at 115. Dr. 21 Camposagrado also opined, however, that Randall could work for three hours per day, two days 22 per week, from April 30, 2013, until May 30, 2013. Id. 23 Dr. Camposagrado also referred Randall to Dr. Peter Gerritz, an orthopedist, for further 24 review of her chronic back pain. ECF No. 36-3 at 22. Dr. Gerritz noted on April 29, 2013 that her 25 “[p]ain first episode [was] at age 30,” and that her “[c]urrent flare started in February 2012.” Id. 26 He noted that she “was previously seen by Dr. Vandenakker at spine clinic who diagnosed her 27 with myofascial pain. She had a poor interaction and requested a second opinion. In the past, she 28 received Requist for osteoporosis with worsening low back pain. She then had a repeat injection. 8 1 Each pain flare is different. She thinks her pain is from a nerve.” Id. at 23. Randall reported she 2 was not able to perform more activities while on her opioid medications, that she was not willing 3 to consider weaning off her pain/central acting medications and started crying when it was brought 4 up. Id. Dr. Gerritz noted that while moderate improvement was noted with physical therapy, 5 Randall “does not follow up with her home exercise program, heat, ice, traction, tens.” Id. 6 Randall reported that during the last month she had functionally “avoided going to work, 7 performing household chores, yard work, shopping, socializing with friends, participating in 8 recreation, and exercising,” but “[s]he does not have any limitations in activities of daily living.” 9 Id. Dr. Gerritz’s impression was that Randall had “chronic back pain due to myofascial pain syndrome,” “poorly controlled depression/anxiety,” a “history of psychological stress (PTSD),” 11 United States District Court Northern District of California 10 and that she “demonstrated maladaptive behaviors including reinforcement of pain behaviors, 12 punishment of well behavior, belief that hurt signals physical damage, belief that one is disabled 13 by pain, belief that pain must decrease before one can function well, focusing on pain, ruminating 14 about negative beliefs (catastrophizing), asking for assistance when in pain, resting when in pain,” 15 and “guarding.” Id. at 26. He noted that he counseled Randall “on lack of efficacy for opioids and 16 long term side effects,” but she was “not willing to reduce” her medication and believed she could 17 “not function without her opioids.” Id. Dr. Gerritz spent a total of 55 minutes with Randall, and 18 then “verbally asked PsyD Dr. Debra Fishman to see” Randall that day for health and behavior 19 counseling. Id. at 26-27. He stated that he thought Randall’s “pain is myofascial,” and it would 20 benefit her to implement “behavioral changes.” Id. at 28. He stated that he would “advise against 21 NSAIDs and Narcotics as they can cause more side effects than proven efficacy.” Id. 22 Randall saw Dr. Camposagrado again April 30, 2013. ECF No. 36-5 at 15. Dr. 23 Camposagrado noted in her report that in a “follow up [on her] mid back pain,” Randall reported 24 “feeling pretty good right now; sore but not painful.” Id. The “[v]isit was progressing and Patient 25 was amenable to plan of weaning off of Percocet . . . However, when we discussed return to work. 26 [sic] Patient became visibly upset/tearful. She reports she doesn’t want to lose her job or her 27 house. Patient asked how she can go back to work when she can’t even sit up to pay her bills at 28 home. She requested for extended disability. Encouraged to return to work at half time. 9 1 However, she reports she really can’t go back to work. After prolonged discussion, I discussed 2 will provide another 1 week off work but plan to return to work thereafter.” ECF No. 36-3 at 15. 3 On May 6, 2013, Randall spoke with Dr. Gerritz again. ECF No. 36-3 at 8. He noted that Randall had “chronic back pain due to myofascial pain syndrome,” and was “escalating her dose 5 of opioids, yet functionally is worsening.” ECF No. 36-3 at 8. Yet while “[i]maging findings 6 showed mild C5-6 spondylolisthesis . . . her pain [did] not fit this referral pattern,” and “[h]er 7 physical exam did not show any focal neurological deficits.” Id. The plan from her previous 8 session April 29, 2013 was noted as “[l]ook into getting a Yoga DVD, attend church services, and 9 practice 4-7-0 relaxation breathing.” Id. at 9. Her pain was described as an “8/10,” just as it was 10 at her last visit. Id. Dr. Gerritz’s report noted that he had reviewed Dr. Camposagrado’s report 11 United States District Court Northern District of California 4 from April 30, 2013, that Randall “was also advised to return to work and was resistant,” and that 12 she was “making more a connection between her anxiety and flare of her pain symptoms.” Id. at 13 11. Dr. Gerritz noted that Randall was “contemplative today regarding weaning herself off pain 14 medications eventually.” Id. at 11. 15 Dr. Gerritz stated in his “recommendations” that Randall should do some exercises and 16 referred her to health and behavioral counseling, but said nothing about her ability to work. Id. 17 Randall’s “problem list” stated that she had had anxiety, myofascial pain syndrome, and 18 osteoporosis dating back to March 5, 2012. Id. at 12. The report also noted “[o]pioid abuse, binge 19 pattern,” as of April 29, 2013.3 Id. Randall saw Dr. Camposagrado once again on May 7, 2013. ECF No. 36-3 at 56. Dr. 20 21 Camposagrado wrote that Randall’s back pain was “[s]till there, constant, [and was] waking her up 22 in middle of the night.” Id. She noted that Randall had gotten a “squeeze ball, which she reports 23 really helps.” Id. Randall reported to Dr. Camposagrado that “she still is not able to work and 24 would like to ‘heal,’” but “she cannot go back to work even at half time. She wants her pain to 25 resolve before returning to work.” Id. at 57. Dr. Camposagrado “[d]iscussed this is not realistic 26 27 28 3 Drs. Camposagrado and Gerritz later responded to emails from Randall stating that they had not placed the diagnosis of opiate abuse in her chart, and that they would remove it for her. ECF No. 35-5 at 260-61. 10 1 and the goal is to minimize her pain but also to return to normal daily activities. After another 2 extensive discussion, will give her one additional week off but that she really needs to prepare to 3 resume work (at least half time) next week.” Id. at 57. In the notes under “Follow up bone scan,” 4 Dr. Camposagrado noted a “subtle small focus of mild increased activity projecting over the left 5 sixth rib without definite radiographic correlation. Significance is uncertain.” Id. Randall “was 6 positive during the entire exam until we started talking about having her go back to work and then 7 she became very anxious and somewhat tearful.” Id. at 59. Dr. Camposagrado wrote that she 8 “[d]iscussed I’m not sure if Dr. Gerritz would be able to assist her in her leave but again 9 emphasized goal to resume work.” Id. Dr. Camposagrado wrote Randall a doctor’s note “to certify that Deborah Randall was examined on 5/7/2013 and is not able to work thru 5/14/13 due 11 United States District Court Northern District of California 10 to a medical condition.” ECF No. 36-3 at 92. 12 Also on May 7, 2013, UC Davis Medical Group Folsom faxed MetLife information from 13 Randall’s recent doctors’ visits. ECF No. 36-3 at 2-6. The record stated that there was a “subtle 14 small focus of mild increased activity projecting over the left sixth rib without definite 15 radiographic correlation,” but that the “significance is uncertain.” Id. at 4. An MRI revealed that 16 Randall’s “[v]ertebral bodies demonstrate normal signal, stature, and alignment. There is no 17 evidence of focal or destructive lesion . . . there is very slight levoconvex curvature . . . No 18 significant degenerative changes are identified.” Id. at 6. The overall “impression” was that it 19 was an “unremarkable MRI of the thoracic spine, with stable very slight levoconvex curvature.” 20 Id. The report estimates a “return to work date” of May 8, 2013, which was then “modified to” 21 May 14, 2013. Id. at 3. 22 Randall’s diagnoses were noted as myofascial pain syndrome (primary), anxiety, insomnia, 23 a history of breast cancer, and osteoporosis. Id. at 7. Randall was given clonazepam to take from 24 April 23, 2013 until October 20, 2013, Voltaren from April 16, 2013 to April 11, 2014, Colace 25 from April 30, 2013 to May 1, 2014, Cymbalta from April 30, 2013 to April 30, 2014, Robaxin 26 starting April 30, 2013, Percocet from April 22, 2013 to April 22, 2014, and had been taking 27 Tagamet since August 7, 2012. Id. 28 On May 13, 2013 Randall spoke with Dr. Gerritz again. ECF No. 36-3 at 64. Dr. Gerritz 11 1 noted that on May 7, 2013, Randall’s “PCP” (Primary Care Practitioner) “advised her to return to 2 work.” ECF No. 36-3 at 64. He wrote that Randall “[a]sked if I would handle her disability due 3 to her PCP being off work,” but “[s]he was instructed to follow up with colleague of Dr. 4 Camposagrado as I agree she needs to return to work.” Id. Gerritz noted that Randall had “still 5 not returned to work,” and “continue[d] to endorse she needs to be pain free in able to function.” 6 Id. at 65. He wrote in his overall “impression” that “She continues to take herself off work 7 without any clear medical justification other than anxiety.” Id. at 66. 8 9 On May 16, 2013 Randall had another visit with Dr. Badawi, who would later become her primary care physician. ECF No. 36-3 at 68. Dr. Badawi discussed positive test results with Randall and “she was very pleased to hear them,” but she still complained “of her mid back pain 11 United States District Court Northern District of California 10 and her inability to go back to work as a consequence of that . . . [Randall was] adamant about her 12 inability to go back to work right now because of the pain.” Id. at 70. Dr. Badawi stated that at 13 times Randall “would be calm and composed, particularly when reviewing records over the 14 computer with her,” but then “she would quickly revert to the pacing back-and-forth along the 15 room. The moment we started talking about her return to work she became very tearful saying 16 that she is in so much pain she cannot go back to work. She looks very anxious and there clearly 17 is an ongoing psychiatric problem that could very well be contributing to her complaint of pain.” 18 Id. at 72. He noted that “[e]xamination of the back shows no gross deformities except for some 19 pigmentation along the mid part of the vertebral column. No tenderness on palpation along the 20 vertebrae or over the adjacent muscles. Slight tenderness under the left scapula.” Id. Dr. Badawi 21 wrote that he “spent 40 minutes with the patient more than 50% of which was in counseling 22 regarding her pain, anxiety as well as her latest PET/CT results. I explained to the patient that I 23 strongly believe that she has an ongoing anxiety disorder that needs to be addressed more 24 thoroughly by a psychiatrist while addressing the myofascial pain problem. The patient was at 25 first resistant to [t]he notion but with counseling she accepted it.” Id. Dr. Badawi wrote a note for 26 Randall excusing her from work for the next seven days. Id. at 93. 27 28 Randall spoke with Dr. Gerritz again on May 20, 2013. ECF No. 36-3 at 78. Dr. Gerritz noted Randall’s “[w]orsening insomnia,” as she “was unable to [sleep] for 37 hours starting 12 1 Saturday AM. Ran out of Percocet Thursday. Her covering internist refused to refill on Friday.” 2 ECF No. 36-3 at 78. He noted that “[s]he continues to take[] herself off work without any clear 3 medical justification other than anxiety.” Id. at 79. She was, however, able to exercise despite 4 pain. Id. 5 On May 20, 2013 Randall also had a visit with Dr. Jeffrey Applebaum, in family practice. 6 ECF No. 36-3 at 81. The reason for her visit is stated as “back pain – out of medication.” Id. His 7 notes state that Randall “called over the weekend because of back pain and was hoping for trigger 8 point steroid injection. Her workup of the T-spine has been negative for neoplasm, infection, 9 degenerative changes or evidence of trauma.” Id. There were “[n]o trigger point areas of tenderness found along the thoracic spine,” so no injection was given. Id. at 83. Dr. Applebaum 11 United States District Court Northern District of California 10 noted that Randall should “manage with medication as before.” Id. 12 On May 22, 2013, Randall saw Dr. Badawi once again. Dr. Badawi noted that “[t]he 13 patient states that her pain is not enabling her to go back to work, because she could ‘do [her] bills 14 on the computer with difficulty but can’t sit long enough to do my work as I am constantly 15 scratching my back.’” Id. at 87. While she was instructed to “increase her Cymbalta,” she had not 16 done it because she was scared of the medication. Id. He noted that “[t]hroughout the 17 appointment today, the patient would become very tearful whenever mention is made of her 18 returning to work. Her PCP had clearly stated in her last note that she wanted the patient to at 19 least go back to half-time work. The patient says that at this time she cannot at all go back to 20 work but at the same time she does not want to lose her job,” saying “‘I know how my work is 21 demanding.’” Id. at 88. 22 Dr. Badawi spent over an hour with Randall and “reviewed in detail the results of her latest 23 MRIs nuclear medicine and PET/CT scan tests. The results so far have been unremarkable and 24 there is nothing tangible that would explain the patient’s pain. The patient is very worried about 25 going back to work but at the same time says that she cannot handle the stresses of her current job. 26 Discussed with the patient perhaps switching to a different job. The patient however says that the 27 current job is a well-paying one. She is telling me that if she can go on disability then she would 28 not lose her current job. I explained to the patient that at this time I cannot proceed with a 13 1 permanent disability claim based on her physical condition particularly given the unremarkable 2 recent imagining as well as her primary care doctor’s recommendation for the patient to go back to 3 work at least half time. I explained to her that her pain could be partly due to psychiatric problems 4 and hence the need for psychiatric evaluation.” Id. at 90. On May 23, Dr. Badawi wrote a note 5 excusing Randall from work up to and including June 8, 2013, pending further evaluation. ECF 6 No. 36-3 at 94. Additional records from Randall’s May medical appointments were faxed to MetLife May 8 29, 2013. ECF No. 36-3 at 54. MetLife approved Short Term Disability benefits for Randall for 9 the period between April 15, 2013 through May 6, 2013, but communicated to Randall on June 15, 10 2013 that benefits would not be approved beginning May 7, 2013. ECF No. 36-3 at 98. The letter 11 United States District Court Northern District of California 7 thoroughly summarized Randall’s doctors’ visits throughout May 2013 and showed that while 12 Randall continued to receive off work notes throughout the rest of May and the beginning of June, 13 her primary doctor wrote her an excuse note begrudgingly and strongly suggested Randall return 14 to work at least part time after May 7, 2013. Id. at 98-99. The other doctors either agreed with 15 Randall’s primary doctor’s conclusion, or did not provide any detailed reasons why Randall could 16 not work. Id. at 99-100. There were no “restrictions and limitations” given that would preclude 17 Randall from “performing the essential duties” of her occupation.4 Id. at 100. The letter advised 18 Randall that she could appeal the decision within 100 days. Id. The letter explained that if 19 Randall had “recent medical documentation not previously submitted which you believe may 20 assist us in evaluating your claim for benefits, please forward this information to us for review on 21 appeal. In particular, office visit notes from your last two office visits including results of any 22 objective medical testing, laboratory etc., documentation relative to your functional capabilities, 23 restrictions and/or limitations, an assessment regarding your ability to return to work and/or your 24 return to work plans.” Id. Drs. Camposagrado and Badawi certified Randall as unable to work through June 11, 2013 25 26 and on June 11, 2013 Dr. Badawi stated that Randall was capable of working at “half-time 27 An error in the letter listed Randall’s position as a “heavy” occupation when it is a “light” occupation. 14 4 28 1 capacity.” ECF No. 36-3 at 114-120. 2 limitations or explanations for what was preventing Randall from full-time work. Id. 3 None of the off-work notes provided any restrictions or On June 27, 2013 Dr. Hisham Soliman, MD, MPH, wrote that Randall was prescribed 4 psychiatric medications and was “not able to work full-time. She is to be excused from any full- 5 time work until 07/15/13. Deborah is able to work part-time.” ECF No. 36-3 at 121. On July 30, 6 2013 Dr. Soliman wrote that Randall would continue to receive regular psychiatric care, and that it 7 was “medically necessary that Ms. Randall temporarily work half days until 09/24/2013 due to her 8 severe back pain which is affecting her mental illness.” Id. at 122. Dr. Soliman also provided 9 MetLife with a psychiatric questionnaire dated August 12, 2013, which in part addressed Randall’s diagnosis of Major Depressive Disorder, and noted Randall’s “ability to remember and 11 United States District Court Northern District of California 10 perform tasks [was] impaired,” and estimated her return to work date as “10/18/13.” ECF No. 35- 12 3 at 154. On August 29, 2013 Dr. Soliman wrote “I feel Deborah should be off work from 13 September 3, 2013 and return back November 3, 2013.” ECF No. 36-3 at 123. Dr. Soliman 14 indicated in a letter on October 28, 2013 that due to Randall’s prescribed medications, she should 15 be off work from October 28, 2013 through December 9, 2013. ECF No. 35-3 at 155. 16 On June 26, 2013, Dr. Yang, a pain specialist, wrote that Randall did “not exhibit any drug 17 seeking behaviors and actually wants to get rid of medications and get back to work. At this point 18 she just cannot do that because of the severe pain limiting her.” ECF No. 35-6 at 421. 19 On July 9, 2013, Dr. Yang wrote that Randall’s pain was at “10/10.” ECF No. 35-6 at 431. 20 On July 18, 2013, Dr. Yang wrote under “subjective complaints” that, on her pain meds, Randall’s 21 pain was “at 3/10.” ECF No. 35-6 at 422. On July 26, 2013, Dr. Yang wrote that Randall had 22 “thoracic degenerative disc disease” and that Randall had been given an epidural steroid injection. 23 ECF No. 35-6 at 427. On July 29, 2013, Dr. Yang wrote that the epidural had not provided 24 Randall with relief, that she could not sleep or work, and that while myofascial release treatment 25 worked, it was not covered by her insurance so she did not do it. Id. at 428. Dr. Yang wrote under 26 “treatment plan”: “I don’t know what is going on. In the next couple of weeks we will consider 27 ordering a thoracic spine MRI and we will ask her to continue myofascial release treatment . . . I 28 also recommend she see a psychiatrist to assess her depression because I think she is depressed.” 15 1 2 3 Id. at 429. 2. Recurrent Short Term Disability Claim and Further Medical Evidence Randall returned to work on July 15, 2013 and continued to work through August 7, 2013. 4 ECF No. 35-6 at 337-38. She submitted a recurrent Short Term Disability claim on August 8, 5 2013, worked part time from August 8, 2013 through August 30, 2013, and left work completely 6 as of August 31, 2013. Id. 7 Randall’s benefits Plans stated in a section on “Return to Work” that “[a]t any time while 8 you are receiving STD benefits, MetLife may determine you are no longer disabled. If such a 9 determination is made, your STD benefits will end on the last date of your approved disability, at which time you are required to return to work. In some situations, MetLife may determine you are 11 United States District Court Northern District of California 10 partially disabled and work with you and Human Resources to return you to work on a part-time 12 or light duty basis, or in another capacity.” ECF No. 35-2 at 15. If a participant returns to work 13 for a period of less than ninety-one days, the subsequent disability is not considered a new 14 disability, but a continuance of the prior claim. Id. at 15-16. 15 In his notes from a visit with Randall on August 19, 2013, Dr. Yang wrote under 16 “subjective complaints” that the thoracic epidural did not work and “she is not able to work at this 17 point due to her thoracic spine pain . . . she needs at least 4 Norco per day.” ECF No. 35-6 at 433. 18 Under treatment plan he wrote “she is not able to function at all without meds,” but he did not 19 detail any specific functional limitations when she did take them. Id. at 434. Dr. Yang also filled 20 out a physician questionnaire on that date, stating that Randall could sit for zero hours, stand for 21 one hour intermittently, walk for one hour intermittently, could not climb, twist, bend, stoop, or 22 reach above shoulder level, and could only lift/carry up to ten pounds occasionally. ECF No. 35-7 23 at 5. He opined that Randall could work up to four hours per day, standing, with breaks every 24 fifteen minutes to stretch or walk. Id. He listed her estimated return to work date as “unknown.” 25 Id. He wrote that she was unable to do “typing or any type of work when pain flares up.” Id. at 7. 26 He felt that Randall would be incapacitated from August 19, 2013 to August 19, 2014, but that she 27 could work four hours per day, five days per week. Id. He stated that during pain flares she 28 would be “unable to perform any functions,” and estimated the frequency of flare ups to be four to 16 1 2 five per day, for one hour per episode. Id. at 7-8. Records from a “disc and pain center” Randall visited indicated that on August 20, 2013 3 the assessment was that Randall was “improving.” ECF No. 35-6 at 390. On August 22, 2013 4 Randall indicated “slight improvement,” but that she was “still having difficulty working/sitting.” 5 ECF No. 35-6 at 340, 391. 6 On September 4, 2013 MetLife wrote to Randall that it had “determined that we are unable 7 to approve STD benefits. We have concluded that you did not meet the definition of disability as 8 required to approve benefits under the terms of the Verizon Wireless Managed Disability Plan.” 9 ECF No. 36-3 at 102. While her “claim was initially approved from April 15, 2013 through May 06, 2013 because the medical information initially received substantiated with clinical evidence 11 United States District Court Northern District of California 10 that [her] symptoms were of such a severity and occurred with such frequency that [she was] 12 unable to work during that time period,” MetLife was after that “unable to determine what 13 functional limitations exist that prevent you from performing the requirements of your occupation 14 as an Engineer of network facilities.” Id. at 103. “The medical documentation did not indicate 15 any abnormal physical exam specific restrictions and limitations, or examination or diagnostic test 16 results to support an ongoing functional impairment. There were no detailed observations or 17 collateral information to help support the nature and severity of your problems and no medical 18 reason or rationale to support why you were unable to return to work. There was no specific 19 information about the intensity, frequency and duration of your symptoms and no explanation how 20 these symptoms prevented you from functioning on a daily basis.” Id. Randall’s “recurrent 21 claim” was denied “effective August 08, 2013.” Id. 22 On September 11, 2013 Randall appealed the denial of her STD benefits, stating she had 23 had back pain every day since February 2012. ECF No. 36-3 at 106. She repeated her complaints 24 of pain symptoms and her inability to function normally, and stated that her doctors’ treatment 25 plans and the medications she was provided were not sufficiently helping her heal. Id. at 106-07. 26 She defended her credibility and stated “If you review my attendance prior to my disability you 27 would find I wasn’t one to take sick days and barely took vacation days. I even tried my best to 28 work through my pain up until April 15th when it became unbearable.” Id. at 107. She admitted 17 1 that she “took more pain medication than was prescribed to get through the day” at work. Id. She 2 stated she loved her job and tried her best to work even though it was painful for her and she 3 believed it worsened her condition. Id. She felt that her doctor did not believe in her, and that her 4 record included misstatements and mischaracterizations about her care. Id. On September 30, 5 2013, MetLife acknowledged receipt of the appeal request and informed Randall it needed an 6 additional 45 days to render a decision on October 22, 2013. ECF No. 35-6 at 441. 7 8 9 On September 16, 2013 Dr. Yang wrote that he had reviewed an MRI with Randall and “her thoracic spine has no problems.” ECF No. 35-6 at 437. On October 2, 2013 MetLife received Randall’s medical records from Dr. Yang. ECF No. 35-6 at 418. Also in October 2013, Randall’s Occupational Therapist, Kathleen O’Brien, 11 United States District Court Northern District of California 10 indicated that Randall should be able to go “back to work part time ~5 hours per day using 12 adjustable standing desk.” ECF No. 35-3 at 155. 13 MetLife also had two independent physician consultants, Dr. Jackson and Dr. McPhee, 14 review Randall’s records. Dr. Jackson reported that Randall’s STD benefits were previously 15 approved, then terminated beginning 5/7/13 due to insufficient evidence of functional impairment. 16 ECF No. 35-6 at 373. Dr. Jackson indicated that the medical information Randall submitted did 17 not support functional limitations beyond 5/07/13 until 7/14/13 and from 8/08/13 onward. Id. Dr. 18 Jackson wrote that a letter from Randall on September 11, 2013 indicated she “became depressed 19 and discouraged after 7/26/13, when an epidural injection failed to relieve her pain. She saw Dr. 20 Soliman, who, she said, insisted she return to work.” Id. at 374. 21 Dr. McPhee indicated that based on a phone call with Dr. Rosenberg, Randall’s 22 chiropractor, on October 29, 2013, “it would be reasonable to limit reaching, and also to limit 23 lifting/carrying,” but they “did not discuss the degree to which lifting/carrying would be 24 restricted.” Id. at 385. Dr. Rosenberg stated that Randall appeared to have instability of the six, 25 seven, and eighth ribs, as well as myofascial pain. ECF No. 35-6 at 343. Dr. Rosenberg 26 “acknowledged that [Randall] appeared to have a high degree of pain sensitivity.” Id. Dr. 27 McPhee stated, however, that she “would still expect the claimant to be able to stand, walk and sit, 28 since this should not cause physical damage, but it would also be reasonable for the claimant to be 18 1 able to briefly change position throughout the work day because of the myofascial component of 2 her complaints.” Id. at 385. She stated that Randall’s “complaints . . . were consistent from one 3 visit to the next, and only very temporarily relieved with chiropractic treatment.” Id. Due to 4 Randall’s medical problems, Dr. McPhee felt that “[d]uring the time periods in question through 5 to the present it may be reasonable to limit lifting/carrying to light weights of possibly 20 pounds 6 occasionally and up to 10 pounds frequently, and to limit reaching above shoulder level to an 7 occasional basis. She could also limit having the upper extremities fully outstretched to short 8 periods at a time on a non-repetitive basis.” Id. at 385. 9 From November 5, 2013 through March 3, 2014, Dr. Sandy Bell treated Randall and communicated to MetLife that Randall was only capable of sitting 20 minutes at one time due to 11 United States District Court Northern District of California 10 severe pain, and that she could at most “occasionally” reach, handle or keyboard in a work day. 12 ECF No. 35-5 at 185, 187-88. 13 On November 22, 2013, MetLife had a vocational consultant analysis performed by Renee 14 Lange, a Vocational Rehabilitation Consultant. ECF No. 35-6 at 351. Ms. Lange concluded that 15 Randall had the residual functional capacity to return to her own light duty occupation with any 16 employer. Id. 17 On December 12, 2013, MetLife wrote to Randall to inform her it had upheld on appeal 18 the original determination to terminate STD benefits. ECF No. 35-6 at 337. The letter stated that 19 “from the physical perspective there did not appear to be significant findings in support of 20 physical functional limitations for the time periods in question, although [Randall] continued to 21 have ongoing pain complaints.” Id. at 343. “[T]here were no examination findings or 22 investigations on which to base physical function limitations from [Randall’s] prior level of 23 activity.” Id. Randall’s physicians “did not provide evidence to support side effects from the 24 medications” she was taking “that would have resulted in functional limitations for the periods in 25 review.” Id. at 344. MetLife “verified with [Randall’s] employer that [her] occupation is 26 considered light duty, and that [she] sit[s] in a cubicle.” Id. at 345. She was “not required to do 27 any lifting,” and her “occupation is not physically demanding.” Id. 28 On December 30, 2013, Randall reported in her “personal profile” for MetLife that she had 19 1 experienced changes in her ability to care for her personal needs and grooming. ECF No. 35-6 at 2 149-150. She had begun to wash her hair only once a week due to pain, wore minimal makeup 3 only when going out, and she reported that her back spasms prevented her from wearing a bra or 4 shoes other than flats. Id. 3. 5 6 Long Term Disability (“LTD”) Benefits On December 23, 2013, MetLife wrote to Randall regarding the LTD benefits available under the Plans and to request that she complete forms in support of her claim. ECF No. 35-6 at 8 162. MetLife conducted an interview with Randall, and she indicated she was receiving state 9 disability benefits. Id. at 196. She related that her back pain started in January 2012 and became 10 progressively worse. Id. at 197. She released to MetLife her personal profile and other requested 11 United States District Court Northern District of California 7 forms. Id. at 135. 4. 12 13 14 15 2014 Medical Records and Communications with MetLife Dr. Yang’s January 2014 notes indicated that he did not think Randall was able to work because of depression. ECF No. 35-3 at 156. On February 27, 2014, MetLife wrote to Randall to inform her she did not qualify for LTD 16 benefits effective February 7, 2014 because she had not been disabled throughout the 26 week 17 elimination period as required under the plan. ECF No. 35-6 at 133. 18 A March 3, 2014 “Workplace Arrangement Request Form” from Dr. Bell indicated that 19 Randall had difficulty sitting, walking, or standing for more than 20 minutes. ECF No. 35-5 at 20 193. A March 4, 2014 form from Dr. Yang stated restrictions including sitting, walking or 21 standing limited to 20 minutes. ECF No. 35-5 at 193. Dr. Bell stated on March 10, 2014, that 22 Randall’s prognosis was “guarded due to the severity” of Randall’s pain. ECF No. 35-5 at 187. 23 She wrote that Randall could only reach, handle, and finger occasionally. Id. at 189. 24 March 14, 2014, MetLife sent Randall a letter giving her 180 days to submit an appeal. ECF No. 25 35-6 at 131. 26 On Dr. Bell wrote on May 13, 2014 that Randall had been seen for a “full orthopedic and 27 neurologic evaluation” on March 6, 2014 and “a positive Hoffman’s sign and Babinski’s Sign was 28 noted.” ECF No. 35-5 at 190. 20 1 Dr. Biljinder Chima became Randall’s PCP and saw her from May 29, 2014 to July 24, 2 2014. ECF No. 35-3 at 156. Randall underwent numerous x-rays and imaging studies in 3 specialist evaluations throughout that period. Id. Dr. Chima wrote that during the time he treated 4 Randall, “from May 2014 through July 2014,” she had “consistently reported ongoing severe and 5 chronic myofascial pain ranging from 2/10 to 10/10 in her thoracic spine region, at times radiating 6 up to her cervical spine region (including her shoulder) and down to her lumbar spine region, 7 despite taking appropriate pain medications prescribed by her pain management doctor.” ECF No. 8 36-6 at 16. He stated he had “found positive findings on clinical examination, including positive 9 bilateral para spinal muscle tenderness and spasm on palpation at the 1I 0 level of the thoracic spine and a positive right-sided Spurling’s Maneuver.” Id. MRIs “showed foraminal narrowing at 11 United States District Court Northern District of California 10 multiple levels (including 50% left and 50-75% right foraminal narrowing at C5-6) as well as 12 anterolisthesis of C5 or C6.” Id. 13 He stated that “Ms. Randall’s reports of pain have been consistent and credible and 14 consistent with my clinical findings on observation and examination.” Id. “Based on Ms. 15 Randall’s consistent reports of pain and my findings on clinic observation and examination, it is 16 my professional opinion that Ms. Randall’s restrictions and limitations should include sitting no 17 more than 15-20 minutes at one time and keeping fingering and handling movements to a 18 minimum, as it appears that those activities among others trigger the pain flares in her thoracic 19 spine regions. Given these restrictions and limitations, it is my professional opinion that Ms. 20 Randall could not perform the duties of her previous position as a Facilities Network Engineer or 21 any comparable professional sedentary position on a consistent full-time basis.” Id. While a June 22 3, 2014 MRI of Randall’s thoracic spine showed “no disc herniation, no stenosis, no alteration of 23 the caliber of the central canal or neural foramina,” it did show a “Spurlings Maneuver - positive 24 right-sided,” and “cervical disc degeneration with foraminal narrowing.” ECF No. 35-5 at 17-18. 25 On July 16, 2014, Dr. Yang stated that Randall’s sleep was affected by severe pain in her 26 back and neck, and that she was unable to sit or stand in one place for more than 20 minutes 27 before experiencing increased pain. ECF No. 35-5 at 196. On July 17, 2014, Dr. Chima 28 diagnosed Randall with a “soft tissue disorder.” ECF No. 35-5 at 14. 21 1 On September 17, 2014 ISIS Healthcare performed a functional capacity evaluation with 2 Randall, who presented “with a diagnosis of Cervical DDD and thoracic pain.” ECF No. 35-4 at 3 438. The report indicated that while Randall “did not perform with determined consistent effort,” 4 she “was consistent in her report of pain throughout the evaluation and she is able to perform a 5 maximum of sedentary work level at this time secondary to pain.” Id. She was only able to sit for 6 10 minutes without difficulty, and stand for 13 minutes. Id. “She was distractible and had 7 difficulty following instructions.” Id. The report also indicated, however, that “[d]uring [the] 8 initial part of evaluation,” Randall “began crying, went to another room, and laid on the floor with 9 the foam roller on her cervical region, which appeared inconsistent with where she had been rubbing/complaining of pain initially.” Id. at 439. The report concluded she could do occasional 11 United States District Court Northern District of California 10 sitting or standing. Id. at 442. 5. 12 Randall’s Appeal of her STD and LTD Claims 13 On July 10, 2014 and October 27, 2014, Randall’s attorney requested an extension of 14 Randall’s appeal deadline to December 8, 2014, which MetLife granted. ECF No. 35-6 at 97, 107. 15 On December 8, 9, and 18, 2014, and January 23, 2015, Randall’s attorney wrote letters to 16 MetLife in support of her appeal of both her STD and LTD claims, enclosing additional medical 17 records and reports. See ECF No. 35-3 at 143, 269. 18 Randall’s family wrote declarations in support of her appeal. Randall’s ex-husband, Jeff 19 Randall, wrote in a declaration on December 5, 2014 that it was clear to him that Randall was 20 “unable to do her job,” that he had traveled “from Los Angeles or Oregon” to “stay with her for a 21 week at a time” and help her, and that she was “one of the hardest workers” he knew before her 22 back problems worsened. ECF No. 35-5 at 198-99. He also noted that she “was always trying to 23 reduce her use of medications.” Id. at 199. Randall’s daughter, Danielle Bledsoe, stated that 24 “since 2012” when Randall aggravated her back, her “back problem” had been “so serious that she 25 has had no choice but to stop working and rely on my help.” Id. at 202. She stated that her mom 26 would “give anything to be able to return to her job if she could work without excruciating pain.” 27 Id. at 203. 28 On December 10, 2014 Randall’s counsel clarified in a phone call with MetLife that 22 1 Randall was not appealing based on a psychiatric condition. ECF No. 35-6 at 270. On December 11, 2014 MetLife wrote to Randall through her attorney to inform him that 2 3 the Plan allowed for only one level of review of adverse STD benefit determinations, which had 4 already been exhausted as of December 12, 2013. ECF No. 35-6 at 304. With regard to Randall’s LTD claim, MetLife had independent physician consultant Mark 5 6 Kaplan write a report on Randall’s functional abilities on December 23, 2014. Dr. Kaplan 7 attempted to speak with Dr. Chima, Dr. Yang, Dr. Thelen, and Dr. Bell. ECF No. 35-3 at 69. Dr. 8 Bell advised Dr. Kaplan that Randall “had findings of pain in a somewhat nonspecific pattern but 9 [had] not been seen for the past six months.” Id. at 70. The other doctors were either unreachable or did not provide any information. Id. at 69-70. Dr. Kaplan wrote that the Functional Capacity 11 United States District Court Northern District of California 10 Evaluation of Randall from September 17, 2014 had produced “inconsistent results” and therefore 12 he concluded “that she would be able to perform sedentary level work” at “a minimal level work 13 capability.” Id. at 70. He noted that while Randall had been “encouraged to seek psychiatric 14 treatment,” there “were limited psychiatric records provided.” Id. Dr. Chima, Dr. Yang, Dr. 15 Thelen, and Dr. Bell were faxed Randall’s records and asked to submit any reviews or comments, 16 but none of Randall’s doctors responded. Id. at 70-71, 127. 17 On January 23, 2015 Randall’s attorney sent a fax to MetLife attaching a “Bone Scan” 18 from January 15, 2015 that showed degenerative changes in Randall’s spine. ECF No. 35-3 at 19 143. 20 On February 24, 2015, MetLife wrote to Randall through her attorney that it was 21 upholding its initial determination because the “medical documentation on file did not support any 22 restrictions or limitations and therefore did not demonstrate that during the Elimination Period and 23 after, she was unable to earn more than 80% of her Predisability earnings at her own occupation 24 from any employer in her local economy from April 12, 2013 and forward.” ECF No. 35-3 at 68. 25 26 6. Social Security Administration Determination On July 29, 2016 an Administrative Law Judge concluded in a Social Security 27 Administration determination that Randall had been disabled “since March 12, 2014” under the 28 Social Security Act. ECF No. 36-8 at 29. Relying on doctors’ reports from mid-2014 through 23 1 2016,5 he determined that Randall was unable to perform any of her past relevant work and that 2 she was credible and work motivated. Id. at 28. 3 II. JURISDICTION Plaintiff’s cause of action arises under ERISA, a federal statute. The Court therefore has 4 5 federal question jurisdiction pursuant to 28 U.S.C. § 1331. 6 III. LEGAL STANDARD 7 A. Summary Judgment 8 Summary judgment is proper when a “movant shows that there is no genuine dispute as to 9 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by” 11 United States District Court Northern District of California 10 citing to depositions, documents, affidavits, or other materials. Fed. R. Civ. P. 56(c)(1)(A). A 12 party also may show that such materials “do not establish the absence or presence of a genuine 13 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. 14 Civ. P. 56(c)(1)(B). An issue is “genuine” only if there is sufficient evidence for a reasonable 15 fact-finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248– 16 49 (1986). A fact is “material” if the fact may affect the outcome of the case. Id. at 248. 17 Where the party moving for summary judgment would not bear the burden of proof at trial, 18 that party bears the initial burden of either producing evidence that negates an essential element of 19 the non-moving party's claim, or showing that the non-moving party does not have enough 20 evidence of an essential element to carry its ultimate burden of persuasion at trial. If the moving 21 party satisfies its initial burden of production, then the non-moving party must produce admissible 22 evidence to show that a genuine issue of material fact exists. See Nissan Fire & Marine Ins. Co. v. 23 Fritz Cos., 210 F.3d 1099, 1102–03 (9th Cir. 2000). The non-moving party must “identify with 24 reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 25 F.3d 1275, 1279 (9th Cir. 1996). Indeed, it is not the duty of the district court to “to scour the 26 record in search of a genuine issue of triable fact.” Id. “A mere scintilla of evidence will not be 27 5 28 The ALJ also mentioned that Randall started seeing Dr. Soliman for her depression in 2013. Id. at 26. The Judge gave “partial weight” to Dr. Soliman’s opinions. Id. at 28. 24 1 sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving 2 party must introduce some significant probative evidence tending to support the complaint.” 3 Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997) (citation and internal 4 quotation marks omitted). If the non-moving party fails to make this showing, the moving party is 5 entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 6 “In ERISA cases, as is the usual rule, the existence of a material factual dispute precludes 7 summary judgment.” Sabatino v. Liberty Life Assur. Co. of Boston, 286 F. Supp. 2d 1222, 1229 8 (N.D. Cal. 2003) (citing Tremain v. Bell Indus., Inc., 196 F.3d 970, 978 (9th Cir. 1999)). To 9 evaluate Plaintiff’s claim, the Court will conduct a bench trial pursuant to Federal Rule of Civil Procedure 52 based on the administrative record and such other evidence as the Court admits. 11 United States District Court Northern District of California 10 Caplan v. CAN Financial Corp., 544 F.Supp.2d 984, 990 (N.D. Cal. 2008) (“Under Rule 52, the 12 court conducts what is essentially a bench trial on the record, evaluating the persuasiveness of 13 conflicting testimony and deciding which is more likely true.”) (citing Kearney, 175 F.3d at 1094- 14 95)). 15 B. ERISA Standard of Review 16 “ERISA was enacted ‘to promote the interests of employees and their beneficiaries in 17 employee benefit plans, and ‘to protect contractually defined benefits.’” Firestone Tire & Rubber 18 Co. v. Bruch, 489 U.S. 101, 113 (1989) (internal citations omitted). ERISA “permits a person 19 denied benefits under an employee benefit plan to challenge that denial in federal court.” 20 Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). “ERISA’s civil-enforcement 21 provision . . . allows a claimant ‘to recover benefits due to him under the terms of his plan [and] to 22 enforce his rights under the terms of the plan.’” Muniz v. Amec Const. Mgmt., Inc., 623 F.3d 23 1290, 1294 (9th Cir. 2010) (quoting 29 U.S.C. § 1132(a)(1)(B)). 24 “[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo 25 standard unless the benefit plan gives the administrator or fiduciary discretionary authority to 26 determine eligibility for benefits or to construe the terms of the plan.” Firestone, 489 U.S. at 115. 27 In this case, the parties have stipulated that de novo review is appropriate, and the Court has 28 accepted their stipulation. See ECF No. 32. Under de novo review, “the court simply proceeds to 25 1 evaluate whether the plan administrator correctly or incorrectly denied benefits with no deference 2 given to the administrator’s decision.” Abatie v. Alta Health & Life Ins. Co., 458 F.3 955, 963 3 (9th Cir. 2006) (en banc). The Court determines whether Randall “was entitled to benefits based on the evidence in 5 the administrative record and ‘other evidence as might be admissible under the restrictive rule of 6 Mongeluzo.’” Opeta v. NW Airlines Pension Plan for Contract Emps., 484 F.3d 1211, 1217 (9th 7 Cir. 2009) (quoting Kearney, 175 F.3d at 1094). Under the Mongeluzo rule, a Court may only 8 consider extrinsic evidence under certain limited circumstances. Id. (citing Mongeluzo v. Baxter 9 Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943-44 (9th Cir. 1995)). Ninth Circuit 10 has “cited with approval the rule . . . that the district court should exercise its discretion to consider 11 United States District Court Northern District of California 4 evidence outside of the administrative record “‘only when circumstances clearly establish that 12 additional evidence is necessary to conduct an adequate de novo review of the benefit decision.’” 13 Id. (internal citations omitted) (emphasis in original). The Court “‘should not take additional 14 evidence merely because someone at a later time comes up with new evidence,’” and “‘[i]n most 15 cases’ only the evidence that was before the plan administrator at the time of determination should 16 be considered.” Id. (quoting Mongeluzo, 46 F.3d at 944). “When a district court reviews de novo a plan administrator’s determination of a 17 18 claimant’s right to recover long term disability benefits, the claimant has the burden of proving by 19 a preponderance of the evidence that [she] was disabled under the terms of the plan.” Armani v. 20 Northwestern Mutual Life Ins. Co., 840 F.3d 1159, 1162-63 (9th Cir. 2016) (citing Muniz, 623 21 F.3d at 1294). “[A] diagnosis . . . alone does not automatically amount to a finding that a claimant 22 is disabled; the claimant must also establish that [her] condition renders [her] unable to perform an 23 essential function of [her] job.” Arko v. Hartford Life and Accident Ins. Co., --- Fed. Appx. ---, 24 2016 WL 7422946, at *1 (9th Cir. Dec. 23, 2016) (citing Jordan v. Northrop Grumman Corp. 25 Welfare Benefit Plan, 370 F.3d 869, 880 (9th Cir. 2004), overruled on other grounds as recognized 26 by Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 673-74, 678 n.33 (9th Cir. 2011)). 27 IV. 28 DISCUSSION Randall seeks retroactive benefits under the Plan as well as continued health, dental, 26 1 vision, and life insurance benefits tied to the receipt of STD and LTD benefits. ECF No. 26 at 6. 2 Defendants seek summary judgment in their favor on the basis that Randall is not entitled to any 3 of the benefits she seeks in this action because the Plan administrator’s decision to deny Randall’s 4 claim was “manifestly correct” under de novo review, and because Randall cannot prove by a 5 preponderance of the evidence that she was disabled. ECF No. 35 at 5. The Court concludes that Randall has failed to prove by a preponderance of the evidence 7 that she was disabled from May 7, 2013 onward and therefore that MetLife erred in denying her 8 benefits. While it is clear that Randall was diagnosed with several conditions and was 9 experiencing pain, she has not proven that she was disabled and unable to perform the essential 10 functions of her job. The Court’s conclusions are based on a de novo review of the record and 11 United States District Court Northern District of California 6 consideration of the Social Security Administration’s decision. 12 A. 13 Defendant MetLife argues that Plaintiff’s “multi-page single-spaced list of physical 14 symptoms and treatment included with her appeal . . . are irrelevant to the issue of whether 15 Plaintiff qualified for benefits in mid-2013 because they all date from March through November 16 2014.” ECF No. 37 at 18. While the dates of the medical reports are not dispositive, in this case 17 the physical symptoms and treatments Randall provided from March through November 2014 do 18 not establish Randall was disabled in mid-2013. Although a court may look at medical evidence 19 rendered later to determine and contextualize the health or medical status of a patient at an earlier 20 point in time, see, e.g., Fontana v. Guardian Life Ins., No. C 08-01231 CRB, 2009 WL 73743, at 21 *4–5 (N.D. Cal. Jan. 12, 2009), the Court will not do so here because contemporary evidence from 22 Randall’s treating physicians was to the contrary. See Salomaa v. Honda Long Term Disability 23 Plan, 542 F.Supp.2d 1068, 1081 (C.D. Cal. 2008) (holding that the plan administrator properly 24 discounted a later report that plaintiff suffered from cognitive problems because none of the 25 mental health providers who treated plaintiff during the relevant time period found any cognitive 26 problems). Randall provides no specific reason for the Court to find that her treating physicians in 27 2013 were incorrect or not credible, and the Court accepts their opinions. 28 Short Term Disability Benefits Randall does argue generally that there are “credibility disputes” regarding her doctors, 27 1 ECF No. 36 at 27, but the prior medical evidence is actually largely consistent. Randall’s treating 2 physicians spent large amounts of time examining her, believed her reports of pain sufficiently to 3 prescribe pain medication, and documented their findings in copious notes. Moreover, their 4 opinions were supported by the results of appropriate medical tests. For instance, Randall’s MRI 5 taken in January 2013 was “unremarkable,” while subsequent tests taken in 2014 showed some 6 degeneration. 7 Randall argues, in essence, that her consistent reports of pain and resulting diagnoses should be sufficient to establish by a preponderance of the evidence that she was disabled. Her 9 consistent reports of subjective pain are not sufficient to find disability in the face of her doctors’ 10 uniform conclusions that she should return to work. Randall’s doctors concluded that she had a 11 United States District Court Northern District of California 8 “high degree of pain sensitivity,” and that her mental health issues were likely adding to her 12 reports of pain. “[I]ndividual reactions to pain are subjective and not easily determined by 13 reference to objective measurements,” Saffon v. Wells Fargo & Co. Long Term Disability Plan, 14 522 F.3d 863, 872 (9th Cir. 2008), and the Court certainly does not discount Randall’s self- 15 reports, but in the cases on which Randall relies the subjective complaints of pain are supported by 16 evidence of treating physicians who placed significant restrictions on the plaintiffs and agreed they 17 could not work. See e.g., Schramm v. SNA Fin. Corp. Insured Grp. Ben. Program, 718 F. Supp. 18 2d 1151, 1163 (N.D. Cal. 2010). This is not such a case. 19 Here, Randall’s treating physicians in April and May 2013 addressed her pain symptoms 20 but clearly indicated she should return to work. They did not conclude that she was totally 21 disabled or could not perform the essential functions of her job. Moreover, as Defendants 22 correctly point out, “[t]he only medical records submitted for the period starting in June 2013 23 either simply restrict Plaintiff’s ability to work for short periods without explanation, like Dr. 24 Badawi’s June 11, 2013 letter and Dr. Soliman’s June 27, 2013 and July 30, 2013 letters, or are 25 based on self-reported pain with no objective verification, like Dr. Yang’s records beginning June 26 26, 2013.” ECF No. 42 at 6. While “the lack of objective physical findings” alone may be 27 insufficient to justify a denial of disability benefits, Eisner v. The Prudential Ins. Co. of Am., 10 F. 28 Supp. 3d 1104, 1114 (N.D. Cal. 2014), that lack combined with some doctors’ beliefs that her pain 28 1 could be managed sufficiently for her to return to work and others’ lack of detailed descriptions as 2 to her limitations supports the Court’s conclusion that Randall has failed to meet her burden. 3 Randall also argues that she should not be “punished” for her return to work in July 2013. 4 That is neither the intent nor the effect of the Court’s order. While Randall’s short return to work 5 bolsters her credibility in arguing that she was motivated to work and not manufacture a disability, 6 as she suggests, it also conforms to the medical advice she received to manage her pain and 7 continue working simultaneously. See ECF No. 38 at 17. Dr. Soliman, a mental health 8 professional, did indicate that Randall should only work part time after July 30, 2013, but the ALJ 9 gave Dr. Soliman’s assessment only “partial weight,” and Randall indicated to MetLife that she was not appealing any decision based on a psychiatric condition. ECF No. 35-6 at 270; ECF No. 11 United States District Court Northern District of California 10 35-3 at 154; ECF No. 36-8 at 26.6 In light of the administrative record, MetLife did not err in 12 denying Randall disability benefits beginning May 7, 2013. B. 13 Long Term Disability Benefits The Court now turns to the question of Randall’s LTD benefits. The LTD policy requires 14 15 the claimant to have been disabled during a 26 week elimination period. See ECF No. 35-6 at 16 133; ECF No. 35-3 at 68. Consistent with the Court’s conclusion that MetLife did not err in 17 determining Randall was not disabled during the STD benefits period, Randall’s medical record 18 does not establish that she suffered from a total disability rendering her unable to perform the 19 essential functions of her occupation during the elimination period required for long-term benefits. 20 MetLife therefore did not err in its denial of Randall’s LTD claim. 21 CONCLUSION 22 Randall requests retroactive reinstatement of benefits from December 11, 2011 to the 23 present. ECF No. 38 at 24 (citing Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 24 1163 (9th Cir. 2001). For the foregoing reasons, the Court concludes that Randall is not entitled to 25 reinstatement of benefits. Accordingly, the Court grants Defendants’ Motion for Judgment, ECF 26 6 27 28 This Court follows those courts that have considered Social Security decisions rendered after the final internal plan appeal “because [they] constitute[] additional evidence that the [plaintiff] could not have presented in the administrative process.” Schramm, 718 F. Supp. 2d at 1164-65. 29 1 2 3 No. 35, and denies Plaintiff’s Motion for Judgment, ECF No. 36. IT IS SO ORDERED. Dated: February 6, 2017 4 5 6 ______________________________________ JON S. TIGAR United States District Judge 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30