United States District Court, N.D. California
May 24, 2004.
CATHERINE MUELLER, Plaintiff,
CNA GROUP LIFE ASSURANCE COMPANY, PACIFIC COAST CARDIAC & VASCULAR SURGEONS LONG TERM DISABILITY PLAN, and DOES 1-50, inclusive, Defendants
The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District
MEMORANDUM & ORDER
Cross Motions for
Plaintiff Catherine Mueller brings this action against defendants CNA
Group Life Assurance Company ("CNA")*fn1
and Pacific Coast Cardiac &
Vascular Surgeons Long Term Disability Plan ("the Plan") to recover
rehabilitation benefits under her employer's long-term disability policy.
Now before this court are the parties' cross motions for summary
judgment. After having considered the parties' arguments and submissions,
and for the reasons set forth below, the court rules as follows.
I. Mueller's Diagnosis
In 1996, Mueller awoke one morning with numbness on the left side of
her face, Rodriguez Decl., Exh. 4 ("CNA") at 117. She was evaluated with
head imaging studies, which were reportedly negative, and no specific
treatment was administered. Id. The numbness improved but persisted intermittently. Id. During the ensuing four years, she did not experience
additional neurological symptoms. Id.
In late 1999, Mueller became pregnant for the first time. Id. In
December of that same year, she had a spontaneous first-trimester
miscarriage. Id. In February 2000, she noticed numbness in her left
foot. Id. Over the course of approximately two days, this numbness
migrated to her other foot and up her legs to her waist. Id. She had
particular numbness in the perineal region, such that she could barely
feel herself voiding. Id. She also experienced associated paresthetic
tingling in the left arm and considerable discomfort in the feet with
cold and electrical sensations. Id. Mueller was initially evaluated by
her primary care physician, Dr. Fred Marcus, and then referred to Dr.
Charan Singh. Id. While blood studies were normal, MRI studies of the
brain and spinal cord showed abnormalities. Id. Dr. Marcus later informed
Mueller that she had multiple sclerosis and scheduled a follow-up
examination with the Department of Neurology at Stanford University
Medical Center, Id.
On March 29, 2000, Dr. Leslie Dorfman, Professor of Neurology and
Director of the Multiple Sclerosis Clinic at Stanford University Medical
Center, reviewed an MRI brain scan of Mueller. Id. Dr. Dorfman concluded
that the history and imaging findings were consistent with the relapsing
and remitting form of multiple sclerosis. Id. at 118. He further noted
that while the disease was still quite mild, it would be in Mueller's
best interest to begin suppressive immunomodulatory therapy. Id. Dr.
Dorfman also discussed issues related to lifestyle and symptom management
of multiple sclerosis and provided Mueller and her husband with
informational materials concerning multiple sclerosis.*fn3 Id.
On February 28, 2001, Mueller saw Dr. Dorfman for a follow-up
examination. Id. at 261. Dr. Dorfman evaluated Mueller and reviewed a set
of MRI studies undertaken earlier in the month. Id. He concluded that
"her condition has been relatively stable, but there has been some slight
disease activity over the past year in the thoracic spinal cord." Id.
Mueller had been on immunomodulatory therapy since her visit with Dr.
Dorfman in March of 2000. Id. She had been suffering from adverse side effects associated with the therapy and,
after consultation with Dr. Dorfman, she decided to discontinue the
II. Mueller's Claim for Disability Benefits
Mueller was employed as a Patient Day Coordinator for Pacific Coast
Cardiac & Vascular Surgeons ("Pacific Coast"). Id. at 81. Her job
description specifies that she is to meet and greet patients, take
patients into exam rooms, have patients get into gowns, and weigh patients
and take their vital signs. Id. She is also required to change unna boots
and remove surgical staples on an as-needed basis, pull patient charts,
order office supplies, keep the patient exam room stocked, and handle
personal tasks for vascular physicians. Id.
In May 2000, Mueller decreased her work schedule from full-time to
twenty-eight hours per week to combat fatigue, numbness, and lower
extremity pain. Id. at 86. Dr. Marcus submitted information in support of
Mueller's decreased work schedule. Id. at 87. On May 8, 2000, Mueller
filed a disability claim based on her decreased work schedule. Id. Dr.
Marcus indicated on the claim that Mueller was partially disabled due to
multiple sclerosis and that her status was unchanged. Id. On June 2,
2000, CNA wrote Mueller, approving her claim and explaining the
disability benefits she would receive under her employer's Income
Protection Policy. Id. at 139. CNA commenced payment of disability
benefits to Mueller on a monthly basis. In April 2001, Mueller decreased
her work schedule from twenty-eight to twenty-four hours. Id. at 197.
This decision was also fully supported by Drs. Marcus and Dorfman. Id. at
In June 2001, CNA hired MJM Investigations, Inc. ("MJM Investigations")
to conduct three consecutive days of surveillance of Mueller, document
her activities before and after work, monitor her ability to work, and
call the insurance adjuster with daily updates. Id. at 211. From June
11, 2003, through June 13, 2003, a private investigator used a hidden
camera to videotape Mueller's activities before and after work. Id. at
212. The investigator videotaped Mueller traveling to and from work in
her car, visiting the gym (where she used a stair step machine) and
returning a curling iron at local grocery store. Id. Based on the
investigation, Ana Rodriguez, a disability specialist at CNA, sent Dr. Marcus a letter requesting documentation to support
Mueller's continuing disability. Id. at 237. In particular, Rodriguez
requested a copy of her most recent medical records, including MRI
testing, neurological evaluations, consultations and treatment. Id. She
also requested a copy of recent office visits from April 2001 to
present. Id. On August 13, 2001, Mueller submitted the February 28, 2001,
report of Dr. Dorfman, as well as a CNA report filled out by Dr. Marcus.
Id. at 258-61. Dr. Marcus' report indicated that Mueller was last seen on
January 5, 2001, that she had an MRI on February 2, 2001, and that her
condition remained unchanged. Id. at 260. He recommended that she
continue with part-time work, as previously advised. Id.
In August 2001, CNA referred Mueller's file for review to Dr. Joseph
J, Jares III of Elite Physicians. Id. at 279-80. Dr. Jares reviewed Dr.
Dorfman's progress notes, Dr. Marcus' progress notes, and Dr. Singh's
February 28, 2000, consultation. Id. at 284. Dr. Jares also reviewed the
lab results and MRI taken on February 28, 2000. Id. His assessment stated
that Mueller's condition was one of remitting and relapsing multiple
sclerosis. Id. He concluded that she had "mild impairment based upon her
subjective complaints of fatigue," that her "neurological examinations
have been unremarkable," and that "the documentation does not support
weakness, sensory loss, or reflex abnormality." Id. at 285. According to
Dr. Jares, the medical information which he received did not support a
specific neurological reason for preventing Mueller from working
full-time. Id. at 287.
In addition to his assessment, Dr. Jares wrote to Dr. Marcus on
September 5, 2001, requesting Dr. Marcus' response to seven questions.
Id. at 294. In response, Dr. Marcus explained that the decision to
decrease Mueller's work schedule to twenty-four hours per week was based
upon her endurance level. Id. at 296. Dr. Marcus added that rest and
regular exercise had greatly helped her in overcoming the symptoms of her
disease; he further indicated that he and her attending neurologist, Dr.
Dorfman, had encouraged her to maximize her physical endurance. Id. Dr.
Marcus specifically stated that Mueller "did not have the endurance to
work full time, and needs periods of her day for rest as well as a
regular exercise program," and that her "physical exercise in the gym has
been a recommended part of her therapeutic program." Id. Dr. Marcus'
responses did not change Dr. Jares' opinion. Id. at 297. On September 24, 2001, CNA sent Mueller a letter explaining that they
had determined that Mueller's medical condition had improved and no
longer precluded her from performing her occupation on a full-time
basis. Id. 298-300. CNA terminated payment of Mueller's benefits. On
November 12, 2001, Mueller appealed CNA's denial of benefits to CNA's
appellate committee. Id. at 310. On November 20, 2001, Dr. Marcus sent a
letter to CNA, in which he explained that Mueller's symptoms had
progressed. Id. at 320. He further stated that "her MS symptoms have
clearly progressed, and her cutting back her work to 24 hours a week is
perfectly appropriate, and medically indicated. Her attempt to do as
vigorous exercise as possible is in her best interest to control her
symptoms and again, in my opinion is medically indicated." Id. at 321,
Dr. Marcus also noted that Dr. Jares' report was factually inaccurate and
that CNA's denial of benefits was unsupported by known and
well-documented medical facts. Id. Dr. Dorfman drafted a similar letter
to CNA, indicating that he concurred with Dr. Marcus and further
explaining that, while it may be technically accurate that Mueller's
condition could permit full-time employment, this would not be in her
long-term best interests. Id. at 324. Drs. James Zimmerman, Vincent
Gaudiani, and Paul Cipriano of Pacific Coast also submitted letters to
CNA explaining that Mueller was disabled and could work only part-time.
Id. at 325-27. All three doctors asked CNA to reconsider the decision to
deny benefits. Id. Jo Ann Riser, a business manager at Pacific Coast,
wrote CNA as well, explaining that she had personally witnessed Mueller's
difficulty in handling a full-time work schedule. Id. at 328-29. Riser
noted that "on one particular day when we were extremely busy, [Mueller]
actually fell down as her feet gave way and buckled under her." Id. at
328. Michelle Johnson, a registered vascular technologist at Pacific
Coast, also submitted a letter explaining that she had personally
witnessed exacerbations of Mueller's condition around the office,
including fatigue, numbness, dragging of her left foot, and, on several
occasions, ataxia. Id. at 330.
On January 8, 2002, Dr. Jares reviewed additional progress notes from
Drs. Marcus and Dorfman, as well as Mueller's job description from
Pacific Coast. Id. at 356. He concluded that the new clinical information
did not alter his opinion. Id. at 357. On January 14, 2002, CNA informed
Mueller that its decision to deny her benefits remained unchanged. Id. at
359. On January 22, 2002, CNA's appellate committee upheld the termination of Mueller's benefits,
and on January 23, 2002, CNA drafted a letter stating that while it did
not dispute her diagnosis, it had reviewed her medical information and
concluded that she was able to work in the capacity of a Patient Day
Coordinator on a full-time basis.*fn4 Id. at 371-72.
On February 23, 2002, Mueller submitted updated medical information to
CNA, including progress notes from examinations conducted by Dr. Marcus
on January 10, 2002, and Dr. Dorfman's on February 2, 2002, and an MRI
study from January 11, 2002. Id. at 385-90. Dr. Marcus' report concluded
that her symptoms were consistent with progressive multiple sclerosis.
Id. at 385. Dr. Dorfman's report explained that she continued to manifest
two small areas of increased signal within the subcortical white matter
of the left cerebral hemisphere, lateral to the body of the left lateral
ventricle. Id. at 387. He further explained that Mueller's multiple
sclerosis had been "gratifyingly stable after some initial myelophathic
symptomatology." Id. Dr. Jares reviewed the updated medical information
and again concluded that she was able to work on full-time basis. Id. at
397-98. On March 23, 2002, CNA drafted a letter to Mueller explaining
that the decision to terminate benefits was proper and that the appellate
review was now complete. Id. at 392-93.
Mueller subsequently filed a complaint with the California Department
of Insurance. Id. at 522. Barbara Love, a Senior Insurance Compliance
Officer, requested that CNA respond to a number of the Mueller's
concerns, including the fact that the company had made its decision based
upon a review of her medical records from a physician that had never
examined Mueller.*fn5 Id. at 422-560. On July 30, 2002, CNA stated that
they maintained their position that the termination of her benefits was
proper without an independent medical examination. Id. at 440. On August
5, 2002, Mueller faxed a request for a second appellate review by CNA.
Id. at 456.
On August 26, 2002, Dr. Eugene Truchelot reviewed Mueller's records at
CNA's request. Id. at 469. He stated that while a part-time work status
seemed reasonable from a subjective standpoint, "from the perspective
which you specifically asked about, i.e., the medical findings presented
in the supplied records, these do not explain, strictly speaking, why the
claimant would be able to perform the same types of occupation activities
which she is currently engaged in on a part-time basis, but not on a full-time basis." Id. at 472. On August 29, 2002, CNA sent a letter
to Mueller explaining that they had conducted a second independent review
and again concluded that the termination of benefits was proper. Id. at
On November 19, 2002, Dr. Marcus drafted a letter explaining that
"Mueller has had clear-cut changes in her symptoms from the initial
diagnosis period" and that it "has been the medical recommendation for
more than one and one-half-years that Ms. Mueller increase her exercise
to help manage her symptoms." Id. at 558. In addition, Dr. Marcus noted
that he strongly believed a reduced work schedule would help manage her
pain. Id. On December 31, 2002, Dr. Dorfman indicated his full support of
Dr. Marcus' letter. Id. at 559. On December 31, 2002, Mueller faxed these
letters to CNA along with a request that they consider the reinstatement
of her disability benefits. Id. at 556-59. While CNA did have contact
with the California Department of Insurance following Mueller's request,
they do not appear to have responded to Mueller's facsimile. On March
27, 2003, Mueller filed suit in California state court, and defendants
removed the case to this court on April 17, 2003.
I. Summary Judgment
Summary judgment is proper when the pleadings, discovery and affidavits
show that there is "no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c). Material facts are those which may affect the outcome of the
case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute as to a material fact is genuine if there is sufficient evidence
for a reasonable jury to return a verdict for the nonmoving party. Id.
The moving party for summary judgment bears the burden of identifying
those portions of the pleadings, discovery and affidavits that
demonstrate the absence of a genuine issue of material fact. Celotex
Corp. v. Cattrett, 477 U.S. 317, 323 (1986). On an issue for which the
opposing party will have the burden of proof at trial, the moving party
need only point out "that there is an absence of evidence to support the
nonmoving party's case." Id. at 325. Once the moving party meets its initial burden, the nonmoving party
must go beyond the pleadings and, by its own affidavits or discovery,
"set forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e). Mere allegations or denials do not defeat a
moving party's allegations. Id.; see also Gasaway v. Northwestern Mut.
Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994). Nor is it sufficient
for the opposing party simply to raise issues as to the credibility of
the moving party's evidence. National Union Fire Ins. Co. v. Argonaut
Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983). If the nonmoving party fails
to show that there is a genuine issue for trial, "the moving party is
`entitled to judgment as a matter of law.'" Celotex Corp., 477 U.S. at
323 (quoting Fed.R.Civ.P. 56(c)).
II. Judicial Review of ERISA Disability Claims
The Plan at issue in this case is a defined benefit plan subject to the
provisions of the Employment Retirement Income Security Act ("ERISA").
29 U.S.C. § 1001 et seq. A denial of ERISA benefits is reviewed de novo
unless "the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility benefits or construe the
terms of the plan," Firestone Tire and Rubber Co. v. Bruch., 489 U.S. 101,
115 (1989). Under Firestone, the default presumption is that the
administrator has no discretion and must show that the plan confers
discretionary authority. Kearney v. Standard Ins. Co., 175 F.3d 1084,
1089 (9th Cir. 1999) (en banc). If the benefit plan confers discretion on
the administrator, the abuse of discretion standard applies. See Bendixen
v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999); McClure v. Life
Ins. Co. of North America, 84 F.3d 1129, 1132 (9th Cir. 1996).
Under the abuse of discretion standard, the court's review is limited
to the administrative record, and the decision of an administrator will
not be disturbed unless the court determines that the decision was
arbitrary or capricious. See McKenzie v. Gen. Tel. Co. of Cal.,
41 F.3d 1310, 1316 (9th Cir. 1994); Clark v. Wash. Teamsters Welfare
Trust, 8 F.3d 1429, 1431 (9th Cir. 1993). "The touchstone of arbitrary
and capricious conduct is unreasonableness." Id. at 1432. In contrast,
under the de novo standard, the normal summary judgment standard
applies, and the district court may grant summary judgment if there are no genuine issues of material fact in
dispute. Tremain v. Bell Ind., 196 F.3d 970, 978 (9th Cir. 1999).
I. The Governing Policy
The first question the court must confront is whether the policy
confers discretionary authority upon the administrator. Defendants argue
that the 2001 certificate of insurance applies to Mueller's claim and
confers discretionary authority upon CNA. Plaintiff contests the
applicability and effect of the 2001 certificate of insurance. Pacific
Coast originally entered into a long-term disability insurance policy
with CNA in 1986. Two certificates of insurance were also submitted by
defendants. According to Rodriguez, a CNA disability specialist, the
first certificate of insurance was effective as of 2000, and the second
certificate was effective as of 2001.
Neither the original policy nor the first certificate confer
discretionary authority upon the plan administrator. The second
certificate states on the opening page, "When making a benefit
determination under the policy, We have discretionary authority to
determine Your eligibility for benefits and to interpret the terms and
provisions of the policy." Rodriguez Decl, Exh. 4, cover page (emphasis in
original). While this language unambiguously attempts to confer
discretionary authority on CNA, defendants have not demonstrated that the
2001 certificate of insurance applies to Mueller's disability claim.
Defendants cite Grosz-Salamon v. Paul Revere Life Ins. Co., 237 F.3d 1154
(9th Cir. 2001), for the proposition that "an ERISA cause of action based
on a denial of benefits accrues at the time the benefits are denied."
Id. at 1159. Defendants contend that because CNA terminated Mueller's
disability benefits in 2001, the 2001 certificate of insurance applies to
the claim. In Grosz-Salamon, Paul Revere and the plaintiff's employer
amended the insurance policy applicable to plaintiff's disability
benefits. Id. at 1157. Paul Revere subsequently issued a Benefits Summary
which, unlike its predecessor, granted discretionary authority to Paul
Revere in construing and interpreting the policy. Id. The employer never
executed an agreement authorizing this change. Id. In determining whether
the abuse of discretion standard applied, the court concluded that while the later plan conferred discretionary authority on the plan
administrator, the provision in the Benefits Summary was invalid for two
reasons. Id. at 1161. First, the original policy was fully integrated,
and a unilateral change in the Benefits Summary was insufficient to alter
the terms of the original policy. Id. Second, the original policy
required changes to be signed by the policyholder. Id. Because the
original policy did not confer discretionary authority upon the plan
administrator, the court concluded that the de novo standard of review
applied. Id. at 1162.
The 2001 certificate of insurance does not apply to Mueller's denial of
benefits. The original policy entered into between CNA and Pacific Coast
states that certificates of insurance will be provided to each insured
person and will describe the benefits of the policy, to whom they are
payable, the policy limitations, and where the policy may be inspected.
Rodriguez Decl., Exh. 1. The policy also purports to be fully
integrated. It provides, in relevant part, "This policy, the Application
of the Holder, Clinic Applications, enrollment cards of Insured Persons
(if any), and the evidence of insurability (if any) of each Insured
Person will comprise the entire contract between the parties." Id. at
Part XIV, pg. 10. Neither clause provides that future certificates of
insurance would alter the rights or duties of the parties. Id. Further,
because the original policy was fully integrated, subsequent certificates
of insurance unilaterally issued by CNA without the policyholder's
authorization would not be binding on the parties. See Grosz-Salamon, 237
F.3d at 1162.
At oral argument, CNA argued that the original policy allowed CNA to
change any of the benefit provisions of the policy subject to one-year
advance notice to the policyholder. See Rodriguez Decl., Exh. 1 at Part
I, pg. 1. After argument, CNA submitted a declaration with attachments
suggesting that a January 26, 2001, letter adequately (and lawfully)
changed the policy, notifying the policyholder of a shift to "abuse of
discretion" review. See Nelson Decl., at Exhs. A & B (claiming to make
the "new" policy effective March 1, 2001); cf, Roser Decl., at ¶ 5
(claiming that the letter was never received). But CNA's letter nowhere
mentions "abuse of discretion" review. Id. Nor does it otherwise qualify
as a legitimate change to the policy even by the terms of CNA's own
policy. Nothing in CNA's letter suggests that CNA provided the requisite
one-year advance notice to the policyholder of any change to the policy.
See Rodriguez Decl., Exh. 1 at Part I, pg. 1; Nelson Decl., at Exh. A (making the changes
"effective" less than two months after they were announced). And nothing
in CNA's submission suggests that the policyholder assented to any
changes made regardless of when or how they were communicated. Id. As a
consequence, the original policy, rather than the subsequently-issued
certificate of insurance, govern Mueller's disability claim. The original
policy does not confer discretionary authority upon the administrator;
therefore, the de novo standard of review applies to Mueller's claim. See
Kearney, 175 F.3d at 1089.
II. Denial of Benefits
The second question before this court is whether CNA improperly
terminated Mueller's disability benefits.*fn6 Under the de novo
standard, the court reviews the record to determine whether a genuine
issue of material fact exists. See Kearney, 175 F.3d 1090; Para v. Life
Ins. Co. of North America, 258 F. Supp.2d 1058, 1064 (N.D. Cal. 2003)
(Jenkins, J.).*fn7 According to the record, Mueller's treating
physicians, Drs. Marcus and Dorfman, recommended that she work on a
part-time basis and exercise regularly. While courts cannot require
administrators to automatically accord special weight to the opinion of a
treating physician, neither can they arbitrarily refuse to credit a
claimant's reliable evidence, including the opinions of a treating
physician. Black & Decker Disability Plan v. Nord, 538 U.S. 822,
123 S.Ct. 1965, 1972 (2003).
In this case, CNA's decision to disregard the opinions of Mueller's
treating physicians and to terminate her benefits is not supported by the
record. Mueller's treating physicians reported that she did not have the
physical endurance to work on a full-time basis, recommending that she
exercise regularly in order to combat the symptoms of her disease.
Despite her treating physicians' recommendations and substantial evidence
favoring Mueller's disability claim, CNA elected to terminate Mueller's
benefits. Mueller's claim was supported not only by her physicians, who
treated her over the course of several years, but also by objective and
subjective medical evidence, evidence from her co-workers and
supervisors, who were also doctors, and information from the Multiple
Sclerosis Society. In contrast, CNA has presented only the opinions of
two physicians that neither reviewed Mueller's complete medical record
nor examined her personally. Because CNA did not base its decision to terminate Mueller's benefits on sufficient reliable
evidence in the record, CNA's decision to terminate Meuller's benefits
CNA's original decision to terminate benefits was based upon Dr. Jares'
August 2001 report and the videotape from MJM Investigations. CNA at
298-99. The videotape from MJM Investigations merely revealed that
Mueller exercised regularly at the gym, using cardiovascular equipment.
Rodriguez Decl, Exh. 6. Drs. Marcus and Dorfman had recommended that
Mueller exercise regularly as part of her treatment in order to overcome
the symptoms of her disease. CNA at 321, 324. In particular, Dr. Marcus
stated that Mueller's "attempt to do as vigorous exercise as possible is
in her best interest to control the symptoms, and again, in my opinion is
medically indicated." Id. At 321. Further, included in the record was a
pamphlet from the Multiple Sclerosis Society, which encouraged a wide
range of exercise activities including swimming, walking or jogging, and
lifting weights, as well as the use of treadmills, stair steppers,
stationary bicycles, and cross-country ski machines. Id. at 331-44. Dr.
Jares never suggested that the opinions of either Dr. Marcus or Dr.
Dorfman with regard to regular exercise were incorrect. Defendants have
failed to present any other evidence which would contradict the opinions
of her treating physicians. Any reliance by CNA on the videotape recorded
by MJM Investigations is unfounded.
In addition, Dr. Jares reviewed the progress and consultation notes of
Mueller's treating physicians, as well as the lab results and MRI taken
on February 28, 2000. Dr. Jares did not review Mueller's February 2001
MRI, nor did he perform an independent medical examination of Mueller.
While independent medical examinations are not required, they are common
in ERISA cases. See Grosz-Salamon, 237 F.3d at 1157: McKenzie,
41 F.3d 1313: Taft v. Equitable Life Assur. Soc., 9 F.3d 1469, 1470 (9th
Cir. 1993). Here, while Dr. Jares concluded that Mueller had multiple
sclerosis, he stated that her symptoms were largely based on subjective
complaints. CNA at 285. According to Dr. Jares, the medical information
he received did not support a finding that Muller could not work
full-time for neurological reasons. Id. at 286. It is unclear how Dr.
Jares made such a determination without reviewing Mueller's complete
medical record or conducting an independent medical examination of her. Nevertheless, based on Dr. Jares'
conclusions, CNA elected to terminate benefits. Id. at 298-99.
The review of Mueller's medical records by Dr. Truchelot following
Mueller's appeal is also unconvincing. Dr. Truchelot reviewed a portion
of Mueller's records and concluded that her part-time status seemed
reasonable from a subjective standpoint: "from the perspective which you
specifically asked about, i.e., the medical findings presented in the
supplied records, these do not explain, strictly speaking, why the
claimant would be able to perform the same types of occupational
activities which she is currently engaged in on a part-time basis, but
not on a full-time basis." Id. at 472. Dr. Truchelot, like Dr. Jares,
never performed an independent medical examination of Mueller. His
conclusions also appear to be based on an incomplete medical record. See
id. at 469-70. Finally, Dr. Truchelot never firmly concluded that Mueller
was able to work on a full-time basis. He only stated that the medical
records with which he was supplied do not suggest that she would be able
to work on a part-time, but not a full-time, basis. Id. at 472. This does
not support CNA's decision to terminate benefits.
Defendants have not pointed to sufficient evidence in the record to
support CNA's decision to terminate Mueller's benefits. CNA failed to
conduct an independent medical examination or have a doctor review
Mueller's complete medical record. In addition, the videotape that
defendant has submitted to support it's decision does not contradict the
recommendation by Mueller's physicians that she should engage in regular
and vigorous exercise. Based upon this court's thorough examination of
the record, CNA improperly terminated Mueller's benefits.
Even if this court were to conclude that the abuse of discretion
standard applies, CNA abused its discretion in denying Mueller's
benefits. See Zavora v. Paul Revere Life Ins. Co., 145 F.3d 1118, 1123
(9th Cir. 1998) ("Although we recognize that an ERISA administrator is
entitled to substantial deference, it still must have some reasonable
basis for its decision denying benefits."); Atwood v. Newmont Gold,
45 F.3d 1317, 1323-24 (9th Cir. 1995) ("It is an abuse of discretion for
an ERISA plan administrator to make a decision without any explanation .
. . or that is based on clearly erroneous findings of fact."). CNA had no
reasonable basis for denying Mueller's benefits. Rather, CNA based its decision solely on the opinions of two physicians and
a videotape of Mueller exercising and running errands. But the videotape
demonstrated that Mueller was abiding by the recommendations of her
doctors, and the opinions of the CNA's physicians contradicted not only
Mueller's treating physicians, but also the medical evidence supporting
Mueller's physician's positions, as well as direct evidence from her
employer and co-workers. In fact, CNA A's physicians neither reviewed
Mueller's full medical record nor examined her. By terminating Mueller's
benefits without any reasonable basis for doing so, CNA abused its
For the foregoing reasons the court DENIES defendants' motion for
summary judgment and GRANTS plaintiff's motion for summary judgment. CNA
is directed to immediately reinstate Mueller's disability benefits.
Plaintiff may also be entitled to an award of reasonable attorney's fees
and costs. See 29 U.S.C. § 1132(g). The court will entertain a separate
motion for attorney's fees and costs.
IT IS SO ORDERED. ENDNOTES