-CWH Decovich v. Venetian Casino Resort, LLC et al, No. 2:2011cv00872 - Document 33 (D. Nev. 2012)
Court Description: ORDER Granting 26 Defendant's Motion for Summary Judgment. IT IS FURTHER ORDERED that 25 Plaintiff's Motion for Summary Judgment is DENIED. Signed by Judge James C. Mahan on 7/30/12. (Copies have been distributed pursuant to the NEF - EDS)
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-CWH Decovich v. Venetian Casino Resort, LLC et al Doc. 33 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 7 MIAE DECOVICH, 8 9 2:11-CV-872 JCM (CWH) Plaintiff, 10 v. 11 12 VENETIAN CASINO RESORT LLC, et al., 13 Defendants. 14 15 ORDER 16 Presently before the court is defendant Anthem Life Insurance Company’s (“Anthem Life”) 17 motion for summary judgment. (Doc. #26). Plaintiff Miae Decovich has filed an opposition (doc. 18 #29), to which defendant has responded (doc. #30). Also before the court is plaintiff’s motion for 19 summary judgment. (Doc. #25). Defendant Anthem Life has filed an opposition (doc. #28), to which 20 plaintiff has responded (doc. #31). 21 I. Factual Background 22 The administrative record is voluminous, well-known to the parties, and its contents are not 23 disputed. It is therefore unnecessary to present all of the details regarding plaintiff’ medical history. 24 However, the court will provide a brief synopsis to give needed background and context to its 25 analysis. 26 Plaintiff is a member of a group disability insurance policy through her former employer, 27 Venetian Casino Resort. That policy is administered by defendant Anthem Life. On September 28, 28 James C. Mahan U.S. District Judge Dockets.Justia.com 1 2009, plaintiff stopped working, claiming that fibromyalgia had rendered her totally disabled. 2 Plaintiff filed a claim for long term disability benefits on January 18, 2010. The following 3 day, plaintiff’s primary care physician, Dr. Edward Tsai, completed an attending physician’s 4 statement. ANTHEM-000406. Dr. Tsai wrote that plaintiff was diagnosed with fibromyalgia and 5 abdominal pain. Dr. Tsai did not note any restrictions, but did state the limitation that plaintiff has 6 a “[h]ard time standing for prolonged periods[.]” Id. 7 On February 18, 2010, Anthem Life advised plaintiff that Custom Disability Solutions 8 (“CDS”) would be reviewing and managing her claim. On February 22, 2010, a CDS representative 9 recommended that plaintiff obtain Dr. Tsai’s treatment notes from January, 2008, to the present and 10 any records in the past two years “to understand [plaintiff’s] functional capacity prior to, as of, and 11 beyond 9/28/09.” ANTHEM-000399. 12 On February 26, 2010, a CDS representative contacted plaintiff by telephone. ANTHEM- 13 000520. Plaintiff reported that the pain in her lower back started approximately three years prior and 14 that an MRI was performed but resulted in no conclusive findings. Id. Plaintiff complained of 15 stomach pain, ulcers, headaches, and memory loss. Id. She claimed that she could not stand for 16 prolonged periods due to pain. Id. She complained that her hands, knees and shoulders were sore, 17 that she was unable to open her left eye due to muscle weakness, and that she had problems with 18 keeping her balance. Id. Finally, plaintiff explained that she had stopped working upon being 19 diagnosed with fibromyalgia. Id. 20 In order to determine whether plaintiff satisfied the subject plan’s definition of “disability,” 21 CDS requested records from the physicians who were treating and diagnosing plaintiff in the time 22 leading up to her disability claim. 23 ... 24 ... 25 ... 26 ... 27 ... 28 James C. Mahan U.S. District Judge -2- 1 Beginning July 18, 2008, plaintiff had been seen by six different physicians. Dr. Tsai aside, 2 the five remaining physicians were specialists, none of whom certified restrictions that would 3 prevent plaintiff from working. The independent peer review analyst summarizes that: 6 “[s]he ha[d] no evidence of any loss of muscle tone, loss of range of motion in any peripheral joints, or in cervical, thoracic or lumbar spine. She ha[d] no evidence of any abnormalities in station and gait or any focal neurological abnormalities. There [was] no evidence of muscular atrophy. Based on the absence of any other findings with the exception of allodynia, there [was] no objective foundation for functional impairment.” 7 ANTHEM-000154. Two of plaintiff’s treating specialists referred plaintiff for psychiatry. 8 ANTHEM-000049; ANTHEM-000080. Plaintiff did not pursue either referral. Plaintiff was also 9 referred for physical therapy (ANTHEM-000280) which she did not pursue. 4 5 10 On May 14, 2010, CDS denied plaintiff’s claim for disability benefits, explaining that the 11 “medical evidence does not provide objective data that [plaintiff’s] condition raises to the level of 12 functional impairment, which would preclude [plaintiff] from performing [plaintiff’s] occupation 13 as a Dealer.” ANTHEM-000161. The denial letter went on to explain that, should plaintiff wish to 14 request a review of CDS’ decision, plaintiff should include with such a request “any medical records 15 that have not yet been submitted from a physician who is certifying [plaintiff’s] disability. . . .” 16 ANTHEM-000162 (emphasis in original). 17 Plaintiff requested a review of CDS’ decision to deny benefits on June 23, 2010. A medical 18 source statement completed by Dr. Tsai on June 1st, 2010, was included with the request, and 19 certified that plaintiff was not capable of standing for more than fifteen minutes at a time. 20 ANTHEM-000140. 21 However, on October 5th, 2010, in response to an inquiry from CDS, Dr. Tsai affirmed that 22 he deferred certification of plaintiff’s restrictions and limitations, for employment purposes, to 23 plaintiff’s treating specialists. ANTHEM-000023. None of the specialists certified any disabling 24 restrictions. 25 On October 7, 2010, CDS denied plaintiff’s appeal because plaintiff had not demonstrated 26 that she was disabled as a result of a psychiatric condition and because there was insufficient medical 27 evidence to establish that plaintiff’s physical condition had risen to the level of severity that would 28 James C. Mahan U.S. District Judge -3- 1 have precluded her from sustaining her work activities. ANTHEM-000013 - ANTHEM-000020. 2 Plaintiff has now brought a civil action under ERISA Section 502(a) seeking an 3 administrative review of Anthem’s decision to deny benefits. 4 II. Discussion 5 A) 6 The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, 7 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 8 show that “there is no genuine issue as to any material fact and that the movant is entitled to a 9 judgment as a matter of law.” Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is “to 10 isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 11 (1986). Legal Standard 12 In determining summary judgment, a court applies a burden-shifting analysis. “When the 13 party moving for summary judgment would bear the burden of proof at trial, it must come forward 14 with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. 15 In such a case, the moving party has the initial burden of establishing the absence of a genuine issue 16 of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 17 F.3d 474, 480 (9th Cir. 2000) (citations omitted). 18 In contrast, when the nonmoving party bears the burden of proving the claim or defense, the 19 moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential 20 element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to 21 make a showing sufficient to establish an element essential to that party's case on which that party 22 will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving party fails 23 to meet its initial burden, summary judgment must be denied and the court need not consider the 24 nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). 25 If the moving party satisfies its initial burden, the burden then shifts to the opposing party 26 to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith 27 Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing 28 James C. Mahan U.S. District Judge -4- 1 party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the 2 claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions 3 of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th 4 Cir. 1987). 5 In other words, the nonmoving party cannot avoid summary judgment by relying solely on 6 conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 7 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the 8 pleadings and set forth specific facts by producing competent evidence that shows a genuine issue 9 for trial. See Celotex Corp., 477 U.S. at 324. 10 At summary judgment, a court's function is not to weigh the evidence and determine the truth 11 but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 12 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all justifiable 13 inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is 14 merely colorable or is not significantly probative, summary judgment may be granted. See id. at 15 249–50. 16 B) 17 If an ERISA benefits plan gives the plan’s administrator discretionary authority to determine 18 eligibility for benefits, federal courts review the administrator’s decision under an abuse of discretion 19 standard. Conkright v. Frommert, 130 S. Ct. 1640, 1646 (2010). Otherwise, such decisions are 20 reviewed de novo. Id. Analysis 21 Benefit-eligibility decisions made by a plan administrator’s delegate are subject to a 22 deferential standard of review if certain conditions are met. Madden v. ITT L.T.D. Plan for Salaried 23 Employees, 914 F.2d 1279, 1283–84 (9th Cir. 1990). In Madden, the Ninth Circuit held that the 24 “arbitrary and capricious” standard of review applies to the decisions of a plan administrator’s 25 delegates when “(1) the ERISA plan expressly gives the administrator or fiduciary discretionary 26 authority to determine eligibility for benefits or to construe the terms of the plan and (2) pursuant 27 to ERISA, 29 U.S.C. §1105(c)(1) (1988), a named fiduciary properly designates another fiduciary, 28 James C. Mahan U.S. District Judge -5- 1 delegating its discretionary authority. . . .” Id. A fiduciary is properly designated if “[t]he instrument 2 under which a plan is maintained [] expressly provide[s] for procedures . . . for named fiduciaries 3 to designate persons other than named fiduciaries to carry out fiduciary responsibilities . . . under the 4 plan.” 29 U.S.C. §1105(c)(1). 5 In satisfaction of Madden’s first criterion, the subject policy does include a provision which 6 expressly gives the plan administrator authority to determine a claimant’s eligibility for benefits. 7 ANTHEM-000656 (“We reserve full discretion and authority to manage the Group Policy, 8 administer claims, and interpret all Policy terms and conditions.”). However, the plan fails to satisfy 9 Madden’s second criterion and does not expressly provide procedures for designating persons other 10 than named fiduciaries to perform claim-handling functions as required by §1105(c)(1). Accordingly, 11 CDS’ decision to deny plaintiff’s claim for disability benefits fails to qualify for “arbitrary and 12 capricious” review. Madden, 914 F.2d at 1283–84. As a result, this court reviews CDS’s decision 13 to deny plaintiff’s claim de novo. See Conkright, 130 S. Ct. at 1646. 14 This court finds that defendant’s determination that plaintiff is not entitled to receive 15 disability benefits is reasonable. Under the terms of the insurance policy, plaintiff bore the burden 16 of establishing entitlement to disability benefits. ANTHEM-000644 (“You . . . must provide us . . 17 . with proof that you are unable to work due to Sickness or injury at your own expense . . . .”). 18 Defendant was under a duty to engage in a dialogue with plaintiff and to specifically declare what 19 form of proof would be required in order to grant plaintiff’s request for benefits. Booton v. Lockheed 20 Med. Ben. Plan, 110 F.3d 1461, 1463 (9th Cir. 1997) (“[I]f the plan administrators believe that more 21 information is needed to make a reasoned decision, they must ask for it.”). Defendant satisfied this 22 requirement by requesting that plaintiff provide statements from plaintiff’s treating physicians that 23 certify plaintiff’s alleged restrictions and limitations. ANTHEM-000162. 24 Plaintiff did provide statements from Dr. Tsai, both in the form of a physician’s statement 25 (ANTHEM-000406) and a medical source statement (ANTHEM-000138) expressing Dr. Tsai’s 26 professional opinion that plaintiff has difficulty standing for prolonged periods of time. It is 27 acknowledged that standing for prolonged periods is a requirement of plaintiff’s profession. 28 James C. Mahan U.S. District Judge -6- 1 ANTHEM-000146 (“Must have the physical stamina to be able to stand and deal for long periods 2 of time.”) 3 However, plaintiff was also seen by a number of specialists, none of whom offered 4 statements certifying restrictions that would prevent plaintiff from continuing in her profession. 5 Plaintiff did not pursue referrals for psychiatry. Nor did she pursue a referral for physical therapy. 6 When requested to clarify his assessment of plaintiff’s restrictions, Dr. Tsai deferred 7 judgment to plaintiff’s treating specialists. ANTHEM-000023. As none of those specialists had 8 certified restrictions that would prevent plaintiff from continuing in her employment, plaintiff failed 9 to meet her burden of establishing that she qualified for disability benefits. See ANTHEM-000644. 10 Plaintiff asserts that defendant rejected her claim for failure to establish a psychological 11 disability and complains that this justification was raised for the first time on appeal. 12 Plaintiff had sought disability for a physical condition. ANTHEM-000404. Plaintiff’s 13 accompanying physician’s statements did not certify her eligibility to claim a disability. At least two 14 of those physicians noted that plaintiff may have a severe psychiatric condition. See ANTHEM- 15 000049. However, because plaintiff neglected to pursue those physicians’ referrals for psychiatric 16 treatment, she failed to established the existence of a psychiatric disability. 17 Accordingly, 18 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion for 19 20 21 22 summary judgment (doc. #26) be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for summary judgment (doc. #25) be, and the same hereby is, DENIED. DATED July 30, 2012. 23 24 UNITED STATES DISTRICT JUDGE 25 26 27 28 James C. Mahan U.S. District Judge -7-
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