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August 29, 2005.

RUTH REFFKIN, Plaintiff,

The opinion of the court was delivered by: CHARLES BREYER, District Judge


In this ERISA action, plaintiff Ruth Reffkin ("Reffkin") challenges defendant's termination of her long term disability benefits. As the parties agree that the standard of review is de novo, the Court is required to conduct a bench trial on the administrative record. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999) (en banc). After carefully reviewing the administrative record and the parties' submissions, and having had the benefit of oral argument, the Court finds that plaintiff is not totally disabled within the meaning of the ERISA plan. This Memorandum and Order constitutes the findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52(a).


  Reffkin was employed by New York Life Insurance Company ("New York Life") as an Associate General Manager at its office located at 70 Washington Street in Oakland, California. In 1994 she stopped working due to what she and her treating physician have variously described as "occupationally induced asthma," and "sick building syndrome." She applied for long term disability benefits, stating that she had originally had an asthma attack in 1989, but that her symptoms had become exacerbated by environmental factors and she could no longer work at 70 Washington Street or any building with similar allergens.

  A. Benefit history

  Defendant paid Reffkin benefits beginning on May 17, 1995, the first date she was eligible under the policy. In August 1995, she resumed work at her home as part of a rehabilitative employment program. During this period she received rehabilitative benefits rather than long term disability benefits. Long term disability benefits were reinstated in August 1996 and continued until defendant discontinued them as of January 27, 2004 on the ground that Reffkin is no longer totally disabled.

  B. Plaintiff's statements and activities

  In July 1996, plaintiff requested reinstatement of her long term disability benefits from defendant on the ground that she could not work in a closed office environment with windows that do not open. A vocational consultant interviewed Reffkin in October 1996 in connection with her application. Reffkin disclosed that she did, in fact, have a window in her office at 70 Washington. She explained that the reason she had stopped working in 1994 was that the building was being remodeled, and the remodeling had caused her respiratory problems. Although the remodeling was completed before she stopped working, she claimed that a restaurant downstairs from where she worked began remodeling, again causing her respiratory problems that made her unable to work.

  After her long term disability benefits were resumed, Reffkin did not again seek work. In 1998, however, she ran for election to the Berkeley Rent Stabilization Board. On her candidate statement she claimed that she currently worked as a life insurance agent.

  Reffkin completed a Claim Questionnaire in November 2003. She claimed that she suffers from "environmental allergies" and, in particular, allergies to substances found in offices and other commercial spaces, such as chemicals, molds, formaldehyde and fragrances. That same month, Reffkin was videotaped (as part of a surveillance conducted by the claims administrator) smoking cigarettes, including two within one hour, without any visible discomfort, as well as attending yoga classes in a commercial building.

  Reffkin's medical records through October 2003 reflect that she reported to Dr. Tufft that she does not smoke. Reffkin does not deny that she smokes on occasion. She claims that she rolls her own cigarettes which use a "natural" tobacco to which she is not sensitive

  C. Plaintiff's medical records

  1. Plaintiff's treating physician, Dr. Tufft

  Dr. Tufft performed two allergy screens on Reffkin in 1988 and 1989. The results for both tests showed Reffkin is extremely allergic to animals, but the tests were negative for allergies to tree, weed, mite/mold and grass. Despite these results, in a November 1989 letter to defendant Dr. Tufft reported that Reffkin is highly allergic to grasses, dust, dog and cat dander. In November 1994, after Reffkin had stopped working, Dr. Tufft opined that Reffkin could perform her usual work. In December 1994 he estimated that Reffkin could return to work in March 1995, provided she did not work in "that building," that is, 70 Washington, Oakland. Again in January, and in February 1995, he certified that Reffkin could not work at her office at 70 Washington, but that she could work out of her home. In a February 1995 report Dr. Tufft stated that Reffkin could work at another location; he explained that her disability was totally as a result of her exposure to her particular office. Again, in March 1995, he certified that Reffkin was not permanently disabled and could work at a different work site. In May, June and July 1995, Dr. Tufft certified that Reffkin could return to work in July 1995. A May 1995 allergen test ...

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