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United States District Court, N.D. California

May 24, 2004.


The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District

MEMORANDUM & ORDER Cross Motions for Summary Judgment
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 therapy. Id.

 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 321.

  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 474-75.

  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 was unreasonable.*fn8

  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 discretion.


  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.


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