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Lona v. Prudential Insurance Company of America

March 24, 2009


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court



This is an action arising under § 1132(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"). Plaintiff Roberta Lona's claim centers on a long term disability insurance policy, Group Plan Number G-3100 ("Policy" or "the Policy"), which defendant Prudential Insurance Company of America ("Prudential" or "defendant") issued to plaintiff's former employer, Xerox Corporation ("Xerox"). Plaintiff made a claim under the Policy which defendant identified as Claim Number 10739885 ("Claim" or "the Claim"). Plaintiff received benefit payments under Xerox's self-insured Long-Term Disability Plan from December 27, 2002 until May 30, 2005. Once plaintiff exhausted the Xerox Plan benefits, she received benefits under the Prudential Policy. She collected those benefits from May 30, 2005 until January 31, 2006, when Prudential terminated them.

On June 12, 2007, plaintiff filed a complaint alleging defendant breached its "contractual and/or fiduciary obligations" under the Policy and violated 29 U.S.C. § 1132 by failing to honor the Claim, as a result of the wrongful termination of her long-term disability benefits. Plaintiff seeks judgment against defendant for: (1) lost benefits under the Policy; (2) prejudgment interest on the withheld benefits; and (3) reasonable expenses incurred, including attorney fees and costs.

The matter came before the Court for trial without a jury on January 15 and 16, 2009. John W. Tower, Esq. of the Law Office of John W. Tower appeared on plaintiff's behalf, and Stanley A. Calvert of Wilson, Elser, Moskowitz, Edelman, and Dicker appeared for defendant. This memorandum decision constitutes the Court's findings of fact*fn1 and conclusions of law.


This Court has jurisdiction pursuant to 29 U.S.C. § 1132 (e)(1), providing that the district courts of the United States have jurisdiction over civil actions brought under § 1132(a)(1)(B) of ERISA by a plan participant. Venue is invoked in this Court under 29 U.S.C. § 1132 (e)(2), providing that an ERISA action may be brought in the district where the plan is administered or where the breach took place.


Plaintiff is a fifty-five (55) year-old woman with three children. She earned a Bachelor of Arts degree in Sociology from Northwestern University in 1975 and resides in Carlsbad, California. She worked as an "Account Manager" for Xerox from 1976-1984, worked in a sales capacity for another company from 1987-1988, and returned to her position at Xerox in 1989. Plaintiff held the position of Account Manager at Xerox until she was placed on disability on December 27, 2002.

Plaintiff was well and relatively healthy until February 1997. In March 1997 plaintiff complained to her primary physician, Dr. Glenn Del Carmen, that she had developed numbness and achiness in her fingers, often became very thirsty, and had developed a sensitive tongue. Plaintiff's March 10, 1997 laboratory results indicated a high "anti-Sjögren's" antibody level. In April 1997 she complained to Dr. Del Carmen of excessive daytime hypersomnolence, "resulting in early retirement to bed after work, waking up fatigue (sic) the next day with a sore right leg." Dr. Del Carmen opined he had a "high clinical suspicion for narcolepsy with associated nocturnal mild clonus." Plaintiff's October 11, 1997 immunology test results were consistent with "S.L.E., Mixed connective tissue disease, Scleroderma, or Sjögren's Syndrome" ("Sjögren's").

Dr. Del Carmen referred plaintiff to a rheumatologist, Dr. Arthur Silverman. On November 4, 1997, Dr. Silverman wrote a letter to Dr. Del Carmen summarizing his examination of plaintiff. Dr. Silverman observed plaintiff was "well developed, well nourished, in no apparent distress. Gait is normal. There are no obvious deformities." His physical and neurological examination revealed nothing abnormal. His joint examination revealed "slight tenderness across the PIP joints but no synovial swelling. Good grip and fist bilaterally." He noted no tenderness and a normal range of motion in her other extremities, spine, hips, knees, ankles and feet. He diagnosed "possible Sjögren's." Plaintiff also underwent a November 1997 salivary gland isotope scan. The results were consistent with Sjögren's.

Plaintiff made numerous visits to doctors in1999 for her persistent symptoms. Dr. Del Carmen also referred plaintiff to neurologist Dr. Bruce Lasker. On May 10, 1999, Dr. Lasker wrote a letter to Dr. Del Carmen summarizing plaintiff's complaints and the result of his examination. Plaintiff complained of fatigue and sleepiness, and told him of her Sjögren's diagnosis. She described her fatigue as feeling like she had the flu, and said that resting was "not good enough for her." She stated at times she had to sleep, and took at least 2-3 naps per week during the day. She stated she usually did not fall asleep uncontrollably, and could "probably fight off" the urge to sleep. She stated she slept 6-11 hours per night on average, but had only slept 6-7 hours per night on average until about six months previously. Dr. Lasker's objective findings revealed a "significant tremor" in both of plaintiff's hands. He noted she was "alert and fully oriented," that she had "normal [muscle] bulk, tone, strength and reflexes." Dr. Lasker concluded plaintiff suffered from: 1) Sjögren's; 2) Essential tremor; and 3) "Fatigue and sleepiness." He recommended plaintiff submit to a sleep study.

In April 1999 plaintiff complained to Dr. Del Carmen about increasing fatigue, but Dr. Del Carmen refrained from prescribing therapy until plaintiff submitted to a sleep study. Dr. Del Carmen also treated plaintiff for rotator cuff tendinitis over three doctor visits between May 18, 1999 and May 21, 1999. On June 11, 1999 plaintiff told Dr. Del Carmen that her shoulder pain was improving with physical therapy, but that she was experiencing numbness and tingling her elbows and left wrist.

Plaintiff submitted to a sleep study on June 16, 1999, conducted by Dr. Larry Ayers. He concluded plaintiff suffered mild to moderate excessive sleepiness but that there was no evidence of sleep onset REM periods to support a diagnosis of narcolepsy. Dr. Ayers' diagnosed "possible sleep related breathing disorder," "excessive daytime sleepiness," and Sjögren's.

On November 15, 1999 plaintiff reported to Dr. Del Carmen that she still required frequent daytime naps to "survive the day's activities." Dr. Del Carmen diagnosed hypersomnolence and prescribed Effexor. On December 9, 1999 plaintiff returned to Dr. Del Carmen, reporting no change in her daytime hypersomnolence. Dr. Carmen weaned plaintiff off Effexor and started her on Ritalin. The record does not indicate whether plaintiff started the Ritalin.

On March 14, 2000 plaintiff reported continued shoulder pain to Dr. Del Carmen. Dr. Del Carmen made an objective finding of mild muscle stiffness, assessed bursitis and tendinitis of plaintiff's shoulders and neck, and prescribed Feldene. On May 6, 2001 plaintiff visited Dr. Del Carmen to complain of fatigue, and reported psychological stress due to estrangement from her spouse. He assessed plaintiff as having dsythmia and hypothyroidism, and prescribed Prozac. On June 11, 2001 she returned to Dr. Del Carmen, reporting fatigue and hypersomnolence. The doctor concluded plaintiff suffered from fatigue, hypersomnelence, and depression, all possibly contributed to by Sjögren's. He prescribed Synthyroid (for her thyroid condition) and indicated possible need for a Ritalin trial. Plaintiff returned for a follow-up visit on July 9, 2001, complaining of fatigue and insomnia. Dr. Del Carmen noted her "resting tremor," assessed plaintiff suffered insomnia and fatigue, and prescribed Sonata, Celexa, and Synthyroid.

On October 14, 2002 plaintiff reported severe fatigue and body pain to her now primary physician, Dr. Daniel Michaels.*fn2 She also indicated she had discontinued all her medications in a failed effort to try holistic medicine. Dr. Michaels assessed fibromyalgia and Sjögren's. He prescribed Elavil. Plaintiff returned to Dr. Michaels on November 12, 2002 for severe fatigue. She noted her hip pain had lessened but that her muscle aches were unchanged and possibly worse.

Plaintiff stated she had difficulty napping during the day, that she typically went to bed between 7 and 9 p.m., and she awoke at 5:45 a.m. during the week and at 9 or 10 a.m. on weekends.

On December 13, 2002 plaintiff visited Dr. Lorraine Ritchings,*fn3 reporting increased fatigue, myalgias, and headache. Plaintiff told Dr. Ritchings she had difficulty functioning at work and that her fatigue interfered with her job performance. Dr. Ritchings' objective findings included tremors in plaintiff's hands, "4/5" strength in all extremities, tenderness in the muscles of her upper back and cervical spine, and trigger points over her elbows. Dr. Ritchings concluded plaintiff suffered from fibromyalgia and recommended she continue taking Elavil at night. Dr. Ritchings also recommended plaintiff not return to work until December 23, 2002.

On December 27, 2002 plaintiff reported to Dr. Michaels that she "drove off the road" on December 16, 2002 and had not returned to work since that date. Dr. Michaels diagnosed fibromyalgia. He told plaintiff not to work or drive until January 20, 2003. He also increased her dosage of Elavil. As of December 27, 2002 plaintiff began receiving benefits under Xerox's self-insured Long-Term Disability Plan.

Plaintiff visited rheumatology specialist Dr. Scott Carstens, on January 13, 2003. She had previously visited Dr. Carstens in July 2001. Dr. Carstens' report summarized plaintiff's complaints: fatigue that at times forced her to nap at least twice daily; limitations in activities of daily living; no significant house cleaning, cooking, or shopping; and children in the home aged sixteen to twenty-two provided her with assistance. Plaintiff complained she did not enjoy restorative sleep and had no real energy to perform vocational or avocational tasks.

Dr. Carstens' objective findings included significant myalgias corroborated by a physical examination revealing tender points in various regions of plaintiff's body. Dr. Carstens noted the myalgias were more prominent in plaintiff's thighs and calves. He also noted there was no significant synovitis of the joints of the hands, wrists, elbows, shoulders, knees, ankles or feet. His neurological examination revealed no evidence of focal, motor, or sensory ...

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