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United States District Court, Northern District of California

April 28, 2003


The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge


In this action, plaintiff Mary Bruce challenges defendant Aetna Life Insurance Company's*fn1 decision to deny her claim for disability benefits under a group insurance policy subject to the Employee Retirement Income Security Act ("ERISA"). Pursuant to the Court's previous orders, the Court reviews the decision de novo, based on the administrative record. (See Order Re: Standard of Review, filed April 9, 2002, at 2:21-22; Order Denying Pl.'s Mot. for Summ. J., filed May 10, 2003, at 5:2-4, 15-17; Order Denying Pl.'s Mot. to Submit Additional Evidence, filed September 3, 2002.)

On February 21, 2003, the Court conducted a trial on the administrative record. Gregory C. Cattermole of the Law Offices of Joseph W. Carcione, Jr., appeared on behalf of plaintiff. Allison M. Dibley of Sedgwick, Detert, Moran & Arnold appeared on behalf of defendant. Having considered the administrative record, the trial briefs, and the arguments of counsel, the Court finds and rules as follows.


In an ERISA case, disputes of fact are "resolved by trial." Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094 (9th Cir.), cert. denied, 528 U.S. 964 (1999). "In a trial on the record, . . . the judge can evaluate the persuasiveness of conflicting testimony and decide which is more likely true." Id. at 1095.*fn2 The trial court "consider[s] anew both the legal and factual aspects of [the plaintiff's] claim." Thomas v. Oregon Fruit Products Co., 228 F.3d 991, 995 (9th Cir. 2000).


On April 26, 1994, plaintiff was injured in an automobile accident. (Administrative Record ("AR") at 483.) At that time, plaintiff was employed by Kaiser Permanente ("Kaiser") as an administrative nurse, (AR at 482), and was a participant in Kaiser's long-term disability insurance plan under a policy issued by New York Life Insurance Company ("New York Life"). (AR at 552-67.)

On October 18, 1994, plaintiff applied for disability benefits, stating that as a result of injuries incurred in the automobile accident, she was totally disabled as of April 27, 1994. (AR at 483.) On December 6, 1994, New York Life approved plaintiff's claim for long term disability benefits "on the basis disability commenced 4/27/94." (AR at 476.)

On January 5, 1998, New York Life notified plaintiff of its decision denying plaintiff's claim, effective November 30, 1997. (AR at 89-91.) New York Life explained that although medical records indicated plaintiff has cervical sprain, headaches, and lumbar pain, a vocational consultant had determined that plaintiff had the qualifications and residual physical capacity for several vocations and that New York Life had not received "medical documentation supporting total disability from performing any occupation." (AR at 89-90.) New York Life also informed plaintiff of her right to request that New York Life review the denial. (AR at 90.) Thereafter, plaintiff requested such review. (See AR at 51.) On November 12, 1998, after considering additional information provided by plaintiff and her treating physician, New York Life reaffirmed its denial of benefits, stating "[W]e are reaffirming our determination that you did not meet the policy definition of disability at the time your benefits were terminated, November 30, 1997." (AR at 19.)

On November 1, 1999, plaintiff filed a complaint in state court. On April 28, 2000, defendant removed the action to district court.


A. Analysis of Plaintiff's Claim

Under the terms of the subject policy, New York Life was required to pay disability benefits "upon receipt of due proof that the employee, while insured under [the] policy, became totally disabled as defined [in the policy] as a result of bodily injury or sickness . . . ." (AR at 539.) The policy defines "totally disabled" as follows:

An employee shall be considered totally disabled if during a period of 24 consecutive months from the beginning of his qualifying period he is unable to perform with reasonable continuity the substantial and materials acts necessary to pursue his usual occupation in the usual or customary way, and if at the end of said 24 month period and during the continuance thereafter of his disability, he is unable to engage with reasonable continuity in another occupation in which he could reasonably be expected to perform satisfactorily light of his age, education, training, experience, station in life, physical and mental capacity.
(AR at 558-59.)

In the instant case, the parties do not dispute that plaintiff is an insured under the policy, and is unable to perform with reasonable continuity her usual occupation as an administrative nurse. The parties disagree, however, as to whether plaintiff, as of November 30, 1997, was "unable to engage with reasonable continuity in another occupation in which [she] could reasonably be expected to perform satisfactorily in light of [her] age, education, training, experience, station in life, physical and mental capacity." (See AR at 559.)

The administrative record reflects, and the parties agreed at trial, that as of November 30, 1997, plaintiff suffered from chronic cervical pain, chronic lumbar pain, and headaches. (See, e.g., AR at 201 (physician's report noting "clinical evidence of diffuse pain in [plaintiff's] neck and low back"; AR at 97 (treating physician's diagnosis of cervical sprain, lumbar pain, and headaches); AR at 89 (letter from New York Life to plaintiff, denying benefits but acknowledging "medical documentation indicates you have cervical sprain, headaches, and lumbar pain").

Accordingly, the Court finds that plaintiff, as of November 30, 1997, suffered from chronic cervical pain, chronic lumbar pain, and headaches.

The administrative record also contains documents reflecting the severity of plaintiff's pain. In an interview with New York Life's investigator,*fn3 plaintiff described the symptoms she experienced shortly after the April 1994 accident as "severe, excruciating back and neck pain in addition to headaches." (See AR at 467.)*fn4 In October 1994, plaintiff stated to Kirke Harrington, M.D. ("Dr. Harrington"), that her symptoms had not improved and that she had "severe neck and back pain," limiting her ability to move and causing her to "spend much time in bed." (See AR at 484.) In December 1994, plaintiff informed New York Life's investigator that she was experiencing "constant pain at all times of some degree" during her waking hours, that although pain medications were "initially helpful," the pain returned "somewhat later," and that she was unable to bend "without experiencing back pain." (See AR at 468.) In February 1995, plaintiff told Dr. Harrington she was "making very little progress." (See AR at 293.) In January 1996, plaintiff reported to Dorothy Waddell, M.D. ("Dr. Waddell"), that she was experiencing neck and shoulder pains with intensity ranging "from 3-8/10"; "jabs" of pain in her right elbow when she picked up objects; disabling headaches of varying intensity triggered by reading, writing, use of the computer, and other activities in which her head was flexed forward; "constant dull but very deep and throbbing pain in the tailbone"; and "throbbing" bilateral buttock and flank pain that, at least three days a week, required her to lie down for relief. (See AR at 357-58.) In March 1996, plaintiff stated to Sophie Otis, PhD, that with medication her pain was under control "more than 50% of the time," although only "marginally at times." (See AR at 145.) In June 1996 and July 1996, plaintiff reported to David LaRochelle, M.D. ("Dr. LaRochelle"), that the pain in her neck, back, shoulders and arms had not decreased, nor had her headaches, and that her activities at home were limited to three to four hours a day. (See AR at 188, 515.)*fn5 In November 1996, plaintiff stated to Dr. Waddell that her headaches caused her to experience "incapacitating events that last 12-36 hours" twice a week; that her pain limited her to "a minimal level of household maintenance" activities; and that cervical and lumbar pain, as well as headaches, recurred if she attempted to increase her activity levels. (See AR at 166.) In August 1997, plaintiff reported to Dr. Waddell that her condition had not changed, (see AR at 97), and that an attempt to perform limited word processing caused her to experience five days of "incapacitating pain." (See AR at 96.) On May 1, 1998, after New York Life initially denied plaintiff's claim but before the final denial, plaintiff informed Dr. Waddell that she felt she was "going downhill" and that the pain was "generalizing." (See AR at 43.)

Defendant has not argued that plaintiff's statements concerning her pain symptoms are not credible. Moreover, nothing in the administrative record indicates any basis for a finding to that effect. Cf. Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989) (holding, in claim for social security benefits, fact-finder must accept claimant's subjective testimony as to extent of pain unless there exist "clear and convincing" reasons to find claimant not credible).

Accordingly, the Court finds that plaintiff's subjective reports concerning the extent of her pain, and how such pain limits her daily activities, are credible.

As noted, the parties disagree as to whether plaintiff, given the extent of pain she experienced from her impairments, could, as of November 30, 1997, "engage with reasonable continuity in another occupation in which [she] could reasonably be expected to perform satisfactorily in light of [her] age, education, training, experience, station in life, physical and mental capacity." (See AR at 559.) In support of her position that she was incapable of doing so, plaintiff relies on the opinion of her treating physician Dr. Waddell.*fn6

"In disability benefits cases, physicians typically provide two types of opinions: medical opinions that speak to the nature and extent of a claimant's limitations, and opinions concerning the ultimate issue of disability, i.e., opinions about whether a claimant is capable of any work, given her or his limitations." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001.) Dr. Waddell provided both types of opinions. On August 25, 1997 and on March 30, 1998, Dr. Waddell, using a Physical Capacities Form provided by New York Life, offered her opinion concerning the nature and extent of plaintiff's functional limitations. (See AR at 56, 96.) Among the limitations assigned by Dr. Waddell were a preclusion from squatting, kneeling, reaching above the shoulders, lifting from below the waist, and repetitive pushing and pulling; a restriction to standing and walking for 0-2 hours at one time, for a total of 2-4 hours during an 8-hour workday; and a restriction to sitting for 0-2 hours at one time, for a total of 2-4 hours during an 8-hour workday. (See AR at 56.) With respect to plaintiff's ability to sit, Dr. Waddell further explained that plaintiff "must `sit' in a reclined position (not in a regular chair) with her legs elevated and that after the 1 ½ to 2 hours in that position must then change position (walk around or lie flat)." (See AR at 52.) On August 25, 1997, also using a New York Life form, Dr. Waddell opined that plaintiff was "totally disabled for [her] present job" and "disabled from all other jobs." (See AR at 98.) On March 30, 1998, again using a form provided by New York Life, Dr. Waddell, in response to a question asking her to rank on a scale of 1 to 5 the level of "physical impairment" resulting from plaintiff's symptoms, checked the box corresponding to level 5 ("Severe limitation of functional capacity; incapable of minimal (`sedentary') activity."), (see AR at 55), and wrote the following explanation: "This ranking is given because the number of hours per day when she is capable of a Class 4 effect*fn7 is irregular and unpredictable." (See id.)*fn8

Deference must be given to opinions offered by a treating physician because a treating physician is "employed to cure and has a greater opportunity to know and observe the patient as an individual." See Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1139 (9th Cir. 2001) (internal quotations and citation omitted) (holding "treating physician rule" applies in ERISA actions). In light of the deference due to treating physicians, where there is a conflict between an opinion offered by a treating physician and an opinion offered by a non-treating physician, a fact-finder may disregard the opinion of the treating physician only if the fact-finder can articulate "specific and legitimate reasons" for doing so, and only if those reasons are supported by substantial evidence in the record. See Holohan, 246 F.3d at 1202-03. Here, defendants argue that Dr. Waddell's opinions are not entitled to deference for several reasons, which the Court will address in turn.

First, defendants argue that Dr. Waddell's opinion that plaintiff cannot perform minimal sedentary activity is inconsistent with other opinions she has offered. See Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (holding administrative law judge properly rejected treating physician's opinion that claimant was "totally disabled" where physician contemporaneously opined claimant was "temporarily disabled" and needed only "program of conservative care"). Specifically, defendant relies on Dr. Waddell's report dated March 30, 1998, in which Dr. Waddell opined that, during an 8-hour workday, plaintiff can "stand/walk" for "0-2 hours at one time," for a total of "2-4 total hours during the day," and that plaintiff can "sit" for "0-2 hours at one time," for a total of "2-4 total hours during the day." (See AR at 56.) Defendant argues that these opinions are properly interpreted to mean that plaintiff can sit and stand/walk for sufficient periods of time so as allow plaintiff to perform a sedentary job. As Dr. Waddell further explained, however, plaintiff "must `sit' in a reclined position (not in a regular chair) with her legs elevated and that after the 1 ½ to 2 hours in that position must then change position (walk around or lie flat)." (See AR at 52.)*fn9 Nothing in the record suggests that there exist jobs, sedentary or otherwise, that a person could perform while unable to sit in a regular chair and while subject to the other limitations identified by Dr. Waddell.

Accordingly, defendant has not shown that Dr. Waddell's opinions should be rejected on the ground of internal inconsistency.

Second, defendant relies on a report completed by a vocational expert, Sandra J. Dixon ("Dixon"), who, according to defendant, provided an opinion that plaintiff, with the functional limitations identified by Dr. Waddell, could perform specific jobs, such as "Nurse Instructor," "Nurse, School," "Nurse, Supervisor," and "Nurse, Consultant." (See AR at 102-110.) As plaintiff points out, however, Dixon did not include all of plaintiff's functional limitations as determined by Dr. Waddell. The opinion of a vocational expert cannot support a denial of benefits unless the hypothetical used by the vocational expert includes all of the claimant's functional limitations. See Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (holding, in social security action, opinion of vocational expert was unreliable where expert did not include in hypothetical claimant's limited ability to concentrate); Lambert v. CWC Castings Div., — F. Supp.2d —, 2003 WL 1797916, *2-3 (W.D. Mich., March 14, 2003) (holding, in ERISA action, vocational expert's report did not support denial of benefits where hypothetical was based on functional limitations provided in unreliable medical opinion). Here, Dixon, in her report, assumed that plaintiff retained "the ability to change postures," but did not assume that plaintiff has any limitations as to such ability. (See AR at 102.) Moreover, Dixon's report does not account for plaintiff's limited ability to perform word processing for any significant period of time, (see AR at 96), and, indeed, appears to have assumed an ability to perform such work with little to no restriction.*fn10

Accordingly, as Dixon's opinion did not take into consideration all of plaintiff's functional limitations, Dixon's report does not provide sufficient grounds for rejecting the opinion of plaintiff's treating physician.

Next, defendant argues that Dr. Waddell's opinion is not entitled to deference because that opinion is provided by way of forms in which Dr. Waddell checked boxes and gave brief answers to questions. The Court, however, evaluates an opinion based on its substance; the quantity of verbiage is not controlling. Moreover, the record includes several narrative reports by Dr. Waddell, in which she discusses the basis for her diagnosis, the nature of plaintiff's treatment, and her observations as to plaintiff's limitations. (See, e.g., AR at 356-62, 401-03.) Further, when Dr. Waddell submitted her opinion on forms provided by New York Life, Dr. Waddell often provided information in addition to that specifically requested on those forms. For example, Dr. Waddell wrote additional comments to the side of the limited area provided by New York Life for answers to questions, (see, e.g., AR at 96), and, on at least one occasion, wrote a cover letter clarifying the responses she had provided on New York Life's form. (See AR at 52-53.) Lastly, to the extent Dr. Waddell provided New York Life with information by checking boxes and answering questions, such responses were in the format requested by New York Life, which provided the very forms to which defendant now raises objection. (See, e.g., AR at 166-67, 96-98.)

Accordingly, the manner in which Dr. Waddell provided New York Life with information is not a basis for rejecting her opinions.

Finally, defendant argues that the Court should find more credible the opinions offered by non-treating physicians Dr. LaRochelle, an orthopedist retained by New York Life to conduct an independent examination of plaintiff, and Bernard Stevens, M.D. ("Dr. Stevens"), a medical consultant for New York Life.

In a report dated July 22, 1996, Dr. LaRochelle, who examined plaintiff on two occasions, provided the opinion that plaintiff could work at home for four hours a day. In particular, Dr. LaRochelle stated: "[Plaintiff] is looking forward to working as a `consultant' in her home where she could do activities through the home setting, so that if she does have spasms or headaches to the neck region, she could treat these as she saw fit. Therefore, I believe she could work four hour days." (See AR at 202.) In a second report to defendant, dated September 17, 1996, Dr. LaRochelle further opined:

If [plaintiff] is stabilized on [] pain drugs, then, I think, she could operate effectively at her home as a consultant. She tells me that she limits herself to approximately three hours on a daily basis to doing things. Perhaps, she could do some part time work at her home. I will, therefore, disagree with the fact that she would be disabled from "any occupation." I would agree with the fact that she could not return to her previous occupation as a nurse supervisor, however. This is especially true with the fact that she is still on narcotics.
(See AR at 188.) At best, Dr. LaRochelle's opinion supports a finding that plaintiff is capable of working at home part-time.*fn11 As such, Dr. LaRochelle's opinion is not in fact contrary to that offered by Dr. Waddell, as there is no indication in the record that Dr. Waddell was ever asked to opine as to whether plaintiff could perform part-time work at home. In any event, Dr. LaRochelle's opinion is relevant to the issue of whether plaintiff can perform "another occupation" only if the term "another occupation," as used in defendant's policy, encompasses part-time work.

"Under the federal common law of ERISA, [courts] interpret terms in ERISA insurance policies in an ordinary and popular sense as would a person of average intelligence and experience." Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1125 (9th Cir.) (internal quotations and citation omitted), cert. denied, 123 S.Ct. 602 (2002). As noted, in the policy at issue, a plan participant is initially eligible for benefits if he cannot perform his "usual occupation" and thereafter only if he cannot perform "another occupation in which he could reasonably be expected to perform satisfactorily in light of his age, education, training, experience, station in life, physical and mental capacity." (See AR at 558-59.) Ordinarily, the term "occupation," unless modified by "part-time," contemplates full-time work. See, e.g., Webster's II New College Dictionary 757, 1237 (1995) (defining "occupation" as "[a]n activity serving as one's regular employment: vocation"; defining "vocation" as "[a] regular occupation or profession, esp. one for which an individual is particularly suited or qualified.") Moreover, where, as here, the plan participant's occupation, prior to injury, was in fact full-time, the phrase "usual occupation" would be understood to mean "usual full-time occupation." Given the juxtaposition of the terms "usual occupation" and "another occupation," the latter term ordinarily would be understood to mean "another full-time occupation."

Interpreting the term "another occupation" to refer to a full-time position is also consistent with New York Life's practices. In its Physical Capacities form, on which New York Life requests that physicians provide information to assist "in determining the work potential" of a plan participant, New York Life seeks information with respect to the participant's ability to perform tasks "in an 8-hour workday." (See, e.g., AR at 56.) Finally, even if the term "another occupation" were ambiguous as to whether it refers to full-time or part-time employment, the term must be interpreted to refer to full-time work because ambiguous terms in policies subject to ERISA are "construed against the insurance company." See Lang v. Long-Term Disability Plan, 125 F.3d 794, 799 (9th Cir. 1997) (holding, in ERISA action where denial of benefits was subject to de novo review, ambiguous language in policy was properly construed in favor of insured). Consequently, the Court finds the term "another occupation," as used in the policy at issue, is properly construed to encompass only full-time employment.*fn12

Accordingly, Dr. LaRochelle's opinion that plaintiff can perform limited part-time work out of her home does not support a finding that plaintiff can perform "another occupation" within the meaning of the subject policy.

As noted, defendant also asks the Court to reject the opinion of Dr. Waddell in favor of the opinion of Dr. Stevens, a nonexamining physician. Dr. Stevens, in a report dated July 28, 1998, offered the opinion that plaintiff could "perform light work, in that she could lift/carry 20 pounds occasionally and 10 pounds frequently"; sit, stand and walk "for six hours out of eight hours"; engage in "climbing, balancing, stooping, kneeling, and crouching" activities frequently; perform "repetitive keyboarding" frequently; reach repetitively; and had no restrictions "environmentally" except to avoid working with "vibrating tools." (See AR at 47.)*fn13 Dr. Stevens based his opinions on Dr. LaRochelle's reports. (See AR at 46-47.) Dr. Stevens, however, failed to explain how he arrived at significantly fewer limitations than those found by Dr. LaRochelle. A physician's opinion is "entitled to little if any weight" where the physician presents no support therefor. See Holohan, 246 F.3d at 1202 n. 2. Indeed, nowhere in Dr. Stevens' report does he even acknowledge Dr. LaRochelle's finding that plaintiff suffers from chronic pain syndrome.

Accordingly, the Court will not credit Dr. Stevens' opinions over those of Dr. Waddell. See Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1999) (holding nonexamining physicians' reports did not constitute substantial evidence where opinions in reports conflicted with all other medical evidence).

In sum, defendant has failed to point to any specific and legitimate reasons, supported by substantial evidence in the record, as to why the opinions proffered by plaintiff's treating physician should be rejected. The Court thus credits those opinions, see Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (holding treating physician's opinions are to be credited where inadequate reasons for rejecting opinions exist), and, based thereon, finds plaintiff, as of November 30, 1997, is unable to perform "another occupation" as that term is defined in the policy.

B. Attorney's Fees and Costs

Plaintiff requests an award of attorney fees and costs. See 29 U.S.C. § 1132(g)(1) (providing, in action under ERISA brought by plan participant, district court has discretion to award reasonable attorney's fees and costs of action to either party). Defendant argues such request is premature, and plaintiff offers no disagreement in reply.

Accordingly, plaintiff's request for attorney's fees and costs shall be filed in accordance with the Local Rules of this District. See Civil L.R. 54-1(a) (providing prevailing party claiming taxable costs must serve and file bill of taxable costs no later than 14 days of entry of judgment); Civil L.R. 54-5(a) (providing motion for award of attorney's fees shall be served and filed within 14 days of entry of judgment).


For the reasons stated:

1. Plaintiff is disabled as defined in the policy and is entitled to all disability benefits thereunder beginning November 30, 1997, without prejudice to defendant's future exercise of its rights under said policy.

2. The Clerk of the Court shall enter judgment in favor of plaintiff and against defendant.

3. Plaintiff's request for attorney's fees and costs shall be filed in conformity with Civil Local Rules 54-1 and 54-5.


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