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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 ...

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