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.
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 ...