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Hawley v. Life Insurance Company of North America


June 5, 2009



This matter is before the court on the parties' cross-motions for judgment on the administrative record, pursuant to Federal Rule of Civil Procedure 52, arising out of defendant Life Insurance Company of North America's ("defendant" or "LICNA") termination of plaintiff Richard Hawley's ("plaintiff") long-term disability ("LTD") benefits.*fn1

For the reasons set forth below, the court finds that the proper standard of review is de novo, and thereunder, the court finds that plaintiff has not met his burden to show that he is totally disabled from engaging in "any occupation" as defined in the subject policy. As such, the court DENIES plaintiff's motion for judgment in his favor and HEREBY GRANTS judgment in favor of defendant.


A. Policy Provisions

Plaintiff, as an employee of Tandem Computers ("Tandem"), was a participant in Tandem's Group Long Term Disability Plan*fn3 insured by LICNA. (Compl., filed Jan. 11, 2008, ¶s 3-10.) The policy issued by LICNA to Tandem defined total disability for the first two years with reference to an employee's "own occupation." The policy provides: "An Employee will be considered Disabled if because of Injury or Sickness: 1. he is unable to perform all the material duties of his regular occupation . . . ." (AR 5.)

It is undisputed that plaintiff received benefits under that provision of the policy for two years. "After Monthly Benefits have been payable for 24 months," the policy provides that an employee is considered totally disabled if he is "unable to perform all the material duties of any occupation for which he is or may reasonably become qualified based on his education, training, and experience" (hereinafter referred to as the "any occupation" standard or provision). (Id.)

B. Initial Claim/Grant of Benefits

At the time of the subject accident which gave rise to plaintiff's disability claim, plaintiff was employed by Tandem as a Project Design Engineer. (AR 1008, 1138.) Previously, plaintiff obtained an electrical engineering degree from San Jose State. (Id.) He was a Data Systems Technician in the Navy from January 1977 to December 1980. (AR 1578.) Thereafter, he was an Engineer/Analyst for Sperry Univac from December 1980 through November 1983 and held a Senior Technical position at Daisy Systems from November 1983 to October 1986. (Id.) He began working for Tandem in October 1986 as a design engineer. (Id.)

The Department of Labor's occupational description for a "Design Engineer" states that such an occupation is driven by intellect, not physical capabilities. (AR 1012-14.) It involves conducting analytical studies, analyzing data, research, developing plans, analyzing systems, and numerous other job duties that are not physical in nature. (Id.) Tandem's job description for plaintiff's position is in accord, indicating that plaintiff's position involved virtually no physical requirements. (AR 1595.) According to Tandem, plaintiff's position involved "[e]valuation and testing of vender supplied software and work stations." (Id.) It required 95% sitting, 3% stooping, and 2% walking; the only physical activity identified is carrying 3 pound manuals, documents and tapes occasionally. (Id.)

On August 21, 1990, plaintiff was in a motor vehicle accident. (AR 1568.) On February 26, 1991, plaintiff was diagnosed with Reflex Sympathic Dystrophy ("RSD") by Dr. Amy Ladd, a condition in which plaintiff suffers severe pain and a burning sensation in his left upper extremity. (AR 1584-88.) Plaintiff applied for LTD beneifts on April 9, 1991. (AR 1606-09.) Dr. Vivek Pai ("Pai"), a neurologist and plaintiff's primary treating physician, submitted a report, dated June 6, 1991, in which he concluded plaintiff was totally disabled based on RSD, effecting his left upper extremity, and due to chronic pain therefrom. (AR 1560-61.) LICNA awarded plaintiff LTD benefits on June 24, 1991. (AR 1556-57.) Thereafter, on November 23, 1991, Dr. Michael Rowbotham of the UCSF Pain Management Center provided an additional opinion, concluding that plaintiff was totally disabled based on RSD.

In February 1993, at LICNA's request, Dr. Allen Bott ("Bott") performed an independent medical examination ("IME") on plaintiff. Dr. Bott concurred with the diagnosis of RSD, placing plaintiff in Stage II of the disease, but concluded that plaintiff "should be able to return to work full-time in the near future, particularly after his depression improves with appropriate anti-depressant medication therapy." (AR 1495.) Dr. Bott stated that while plaintiff cannot use his left upper extremity due to the RSD, he can still use his mind, his lower extremities and his upper right extremity. (Id.) He specified that plaintiff's future employers will need to accommodate breaks. (Id.)

Despite Dr. Bott's conclusions, on August 22, 1993, LICNA concluded that plaintiff was entitled to LTD benefits under the "any occupation" provision of the policy. (AR 1466.)

C. Interim Claims Processing

Over the years leading to LICNA's decision in 2007 to terminate plaintiff's benefits, defendant's handling of plaintiff's claim was largely routine. Dr. Pai provided numerous interim standardized form reports (including Attending Physician Statements ["APS"], Physical Capacities Forms ["PCF"], Physical Ability Assessments ["PAA"], letters and progress notes) regarding plaintiff's condition, covering the period of March 1991 to June 2006. (AR 1609 [APS], 1570-71 [Ltr.], 1560-61 [Ltr.], 1551 [PCF], 1552-1553 [APS], 1539 [PCF], 1534-35 [APS], 1533 [PCF], 1522 [PCF], 1512 [PCF], 1478-79 [APS], 1445 [APS], 1594 [APS], 1358-59 [APS], 1360 [PCF], 1297-1300 [APS], 1293-94 [APS], 1271-72 [APS], 1018-19 [PAA], 1232-33 [APS], 1205-06 [Ltr.], 1022 [Note], 1006-09 [APS], 1027-28 [Note], 1114-17 [APS], 955 [Note], 1082-83 [PAA], 959-60 [APS].) In each of these reports, Dr. Pai indicated that plaintiff's condition remained unchanged, and that he continues to suffer from RSD and chronic pain syndrome, which preclude him from working in any capacity. (Id.)

Plaintiff described his condition similarly over the years. Near the time of his initial diagnosis, plaintiff described that the pain on his left side is so severe that even air blowing over his left hand and arm causes a very uncomfortable sensation, and that his left hand cannot be moved or even straightened. (AR 1030.) In June 1999, plaintiff informed defendant that he could not attend a functional capacity evaluation because his left arm has a burning pain continuously. (AR 1236.) He stated that he hits people if they touch his left arm. (Id.) Plaintiff also complained of depression from not being able to have a normal life. (AR 1130-33.) He explained that his concentration and memory is "awful due to chronic pain" and that his sleeping pattern is "very irregular." (AR 965-970.) Thereafter, on Daily Activity questionnaires, from 2003-2005, plaintiff described his limitations and restrictions in an identical manner. (AR 1190-92, 965-70, 1087-92.) He stated that he has "constant chronic burning pain . . . [which] radiates through [his] left shoulder down through my left hand." (AR 1190, 966, 1087.) He stated that he cannot "concentrate or focus and become[s] frustrated and irritated and upset." (Id.) As for his activities during these years, plaintiff stated that he never uses a computer, and that he is only able to read or watch TV for 1 to 2 hours daily. (Id.) He stated he only drives in an "emergency." (AR 1190, 969, 1087.) He indicated that he walks daily "around [the] house" for 10 to 15 minutes. (AR 1191, 969, 1087.) He stated that while he does some physical therapy daily "with sponge balls in movement to stop atrophy of [his] left limb," his wife has to help him with all his personal needs. (AR 1191, 966, 969, 1087, 1091.) He asserted his limitations are so severe, that even though he is right handed, his wife had to help him fill out the questionnaires. (AR 965, 1088.)

During this period, while he was receiving LTD benefits from defendant, plaintiff applied for Social Security Disability Insurance ("SSDI") benefits as well. His application was denied in July 1991. (AR 1549.) In December 1993, defendant hired an attorney to represent plaintiff in his appeal of the denial of his SSDI benefits. (AR 1314.) Ultimately, plaintiff prevailed and was awarded SSDI benefits on January 31, 1994. (AR 1310.) The Social Security Administration ("SSA") found that plaintiff suffers from RSD and other related conditions and is incapable of performing his past relevant work or any other work. (AR 1310-13.) Based on the SSDI award, defendant reduced plaintiff's LTD benefits and demanded and received repayment from SSA of $77,186.90 for overpaid benefits. (AR 1303-06, 1329-32, 1343-44.) Plaintiff continued to receive SSDI benefits at the time defendant terminated his LTD benefits in February 2007. (Pl.'s Trial Brief, filed Feb. 17, 2009, at 5, ¶s 25-28.)

D. LICNA's Investigation Leading to the Termination of Plaintiff's LTD Benefits

On May 17, 2005, plaintiff's file was referred to LICNA's Special Investigation Unit ("SIU") on the basis that

(1) plaintiff did not wish to complete an FCE; (2) it was difficult to acquire medical information from plaintiff's doctor; and (3) plaintiff complained of severe pain but only saw his doctor once a year. (AR 963, 1086).*fn4 SIU accepted the file on October 4, 2005. (AR 1085.) As part of its investigation, in November 2005, plaintiff was placed under surveillance by defendant. (AR 1067.) The video surveillance, submitted as part of the administrative record, shows plaintiff at 9:24 a.m. on November 7, 2005, leaving his house and walking in his neighborhood. (Id.) He is carrying a water bottle in his right hand and is moving his left arm freely. (Id.) The surveillance report indicates that plaintiff arrived back home from his walk at 10:55 a.m. (Id.)*fn5 The investigator drove the route plaintiff walked and estimated the distance as roughly 5 miles. (Id.) Again, on November 9, 2005, plaintiff is seen on the videotape leaving his residence to go for a walk at 9:30 a.m., carrying a water bottle in his right hand; the surveillance report indicates plaintiff returned home at 11:00 a.m. (Id.) Plaintiff also went for a shorter walk on November 10, 2005. (Id.)

Plaintiff is also seen on the videotape, on November 7, 2005 at 9:24 a.m., using his left hand to reach into his front shirt pocket. (Id.; Ex. D to Def.'s Trial Brief, filed Feb. 12, 2009.) His movement is voluntary and without hesitation. That same day at 10:54 a.m., plaintiff, again voluntarily and without hesitation, uses his left hand and arm to open a garbage can lid. (Id.; Ex. C to Def.'s Trial Brief.)

Finally, on November 8, 2005, defendant's investigator observed plaintiff departing the area of his residence driving a black four door BMW at 11:43 a.m. (AR 1069.) He drove to a gas station where his wife got out of the car and went into the store for a brief period. Plaintiff returned home, driving the car, at 12:00 p.m. (Id.)

Also, as part of its investigation of plaintiff's file, defendant sent plaintiff for a functional capacity evaluation ("FCE") on August 23 and 24, 2006, by physical therapist, Stacey Pittman ("Pittman"). (AR 944-58.) Pittman observed plaintiff arriving at her clinic; she states that plaintiff's wife drove, and that plaintiff had difficulty getting out of the car and had difficulty walking 105 feet from the car to the clinic. (AR 953.) She states plaintiff: "began to walk very slowly towards the clinic. His left arm was hanging at his side. His gait appeared shuffled with wide base of support. There was a curb prior to entering the clinic. Plaintiff paused briefly before lifting his leg to step up the curb." (Id.) Pittman describes plaintiff's "Chief Complaints/Symptoms" as follows: Plaintiff has "burning pain in left upper extremity, most painful in left shoulder joint and left hand, very hypersensitive to touch, unable to tolerate any superficial touch, or even air blowing on arm . . . any movement of left shoulder, elbow, or hand increases pain symptoms. Can move fingers slightly but even this movement increases pain." (AR 944.) Pittman also describes plaintiff's functional limitations as he reported them to her: Plaintiff states he has to sleep in a recliner; his wife has to help him pull his zipper up and down and pull his pants up and down to go to the restroom; she has to wipe him; he cannot take a shower because he cannot tolerate the water hitting his arm; he stands in the bathtub while his wife washes him; his wife has to dress him and shave him; he tries to read but his medicine makes it difficult for him concentrate; he can walk around his house for limited periods; he states he only drives in emergencies. (Id.)

Ultimately, Pittman did not reach any conclusions about plaintiff's physical condition because plaintiff "became extremely anxious and irritated" and was "uncooperative." In large part, plaintiff would not comply with the test requirements as he refused to allow Pittman to touch his left arm and refused to perform any activities with his left arm. (AR 947-48, 954-55.) Pittman stated she could not determine plaintiff's "true" functional use of his left upper extremity based on her inability to assess the involved body parts. She wrote that plaintiff's refusal to participate, and his self-limiting activities, made it impossible for her to evaluate his actual lifting capacity. (AR 956.)

Thereafter, on October 26, 2006, defendant sent plaintiff for an IME by Dr. Mark Diaz, an occupational medicine specialist. Similar to his reports to Pittman, plaintiff reported to Dr. Diaz that his pain level has been 10 out of 10 in his left hand, arm and shoulder since the time of his injury. (AR 1148.) Plaintiff stated that his pain does not get better even for a short period of time. (Id.) Plaintiff claimed that since he got injured, he has been "pretty much restricted to just walking around his house." (AR 1150.) He stated he cannot walk longer than 5 minutes, because every 3 to 5 minutes he gets increased pain in his left arm when he walks. (AR 1150-51.) Plaintiff also stated he could not pick up anything in his left arm. (AR 1151.) He denied the ability to reach for anything with his left arm.

(Id.) He states that he is not able to sit for a half hour because of irritability due to the pain in his left arm and similarly for standing for a half hour. (Id.) Dr. Diaz reported, however, that plaintiff's wife indicated to him that plaintiff "gets in the sauna tub upstairs and gets the jets on him." (Id.)

During the physical examination, Dr. Diaz asked plaintiff to take a kleenex out of his left pocket. (AR 1153.) Plaintiff stated he could not do it, and that he had not been able to do so since the traffic accident. He also said that he could not grab a kleenex and switch it from his right hand to his left hand. (Id.)

Dr. Diaz concluded from his review of plaintiff's medical file, the surveillance tape and his physical examination of plaintiff, that plaintiff's complaints of pain were incredible. He found that the surveillance video "seriously undermines" plaintiff's claimed injuries. He concluded that plaintiff could perform sedentary work and most probably light work. (AR 1154, 1156.) Dr. Diaz subsequently revised and amended his initial report, in part; although, he continued to find that plaintiff "is either grossly exaggerating his symptoms or is malingering." (AR 901-21, 899-900, 828-30.)

Defendant also considered in evaluating plaintiff's claim the lack of evidence demonstrating atrophy of the upper left extremity. A April 2004 radiological study, ordered by Dr. Pai to "rule out atrophy" in light of the fact that plaintiff had a "[i]mmmobile left hand, history of RSD times 14 months" was normal. (AR 1062.) Two years later, in his October 26, 2006 report, Dr. Diaz notes that "[t]here was no obvious atrophy in the left upper extremity." (AR 1153.) Defendant found that the absence of atrophy discredited plaintiff's contention that his left arm and hand had been essentially immobile for the last 17 years.

Additionally, in investigating plaintiff's claim, defendant considered that while Dr. Pai had repeatedly and consistently provided his diagnosis for plaintiff--of RSD effecting the left upper extremity with chronic pain syndrome and depression--he failed to state over the years why these impairments precluded him from working in any occupation. Moreover, specifically as to plaintiff's purported depression, defendant found Dr. Pai's opinion unsupportable. As early as March 1994, Dr. Pai conceded that plaintiff has his "own psychiatrist" and that Dr. Pai does not see plaintiff for his psychiatric condition. (AR 1370.) Despite this admission, in the following years, Dr. Pai continued to offer his conclusion that plaintiff was depressed. For example, in August 1996, Dr. Pai describes plaintiff's impairment as a "Class 5," meaning that he "has significant loss of psychological, personal and social adjustment (severe limitations)." (AR 1294.) Similar classifications were provided in 2000, 2003 and 2005, yet Dr. Pai admits he was not seeing plaintiff for his psychiatric condition during this time, and he provided no clinical findings to support these conclusions. (AR 1123, 1009, 1099.) In general, defendant found that there was an absence of any clinical findings in plaintiff's medical records to support the existence of debilitating depression,*fn6 and there were no records to support that plaintiff was receiving treatment for depression.

In a similar vein, defendant considered the overall lack of treatment plaintiff received for what he described as a severely painful, chronic and debilitating physical condition. According to plaintiff's claim forms and the various APSs, the only physician who treated plaintiff for the 17 year period he received benefits was Dr. Pai. As early as 1992 and 1993, the records reveal that plaintiff saw Dr. Pai only "as necessary," which over the years averaged to one visit a year. (AR 1534-35, 1525-26, 1510-11, 1478-79, 1445-46.) As of October 2000, Dr. Pai saw plaintiff once every six months. (AR 1122.) By 2005 and 2006, plaintiff saw Dr. Pai only "as needed," which again averaged to visits once a year. (AR 959-61, 1089, 1097-99.)

Finally, on January 23, 2007, defendant prepared a Transferable Skills Analysis ("TSA") for plaintiff, considering plaintiff's prior work history, his education and Dr. Diaz' report. Rehabilitation Specialist Danny Seccums identified three jobs that he believed plaintiff could perform: project engineer, production planner and general supervisor. (AR 840-43.)

Defendant sent Pittman's FCE, Dr. Diaz's IME and the report of the SIU to Dr. Pai in a letter of January 30, 2007, seeking his opinions as to the reports. (AR 614, 833, 836.) Dr. Pai responded that he had nothing additional to add to plaintiff's claim. (AR 614.)

E. LICNA's Denial of Benefits & Plaintiff's Appeal Thereof

On the basis of the above evidence, set forth in Section D supra, LICNA terminated plaintiff's LTD benefits by letter, dated March 5, 2007. (AR 817-24.) The letter sets forth the policy's definition of total disability from "any occupation," summarizes the background facts and describes why in light of the FCE by Pittman, Dr. Diaz' report, the TSA and the surveillance of plaintiff, defendant found plaintiff no longer entitled to benefits. (Id.)

Plaintiff appealed defendant's decision. (AR 235-609.) In support, he offered, among other things, a May 1, 2007 office note of Dr. Pai, reiterating his diagnosis of RSD and explaining that plaintiff has had ongoing pain for 16 to 17 years, and that he has "extreme hypersensitivity of the entire left side." (AR 210-11.) In this office note, Dr. Pai also increases plaintiff's morphine prescription to 5 mg three times daily, but he provides no explanation for why the increase was necessary. Dr. Pai also submitted on plaintiff's behalf a letter of August 24, 2007, which criticized Dr. Diaz' report and the FCE by Pittman. Dr. Pai argued that Dr. Diaz' opinions reflect a lack of understanding of RSD and the current literature for the disease, and asserted that Dr. Diaz had no proper basis to disbelieve plaintiff. (AR 220-22.) As to Pittman, Dr. Pai asserted her report reflected a lack of understanding between an "inability to perform a task due to pain" and "refusal to perform a task based on an uncooperative stance." (AR 224.)

Plaintiff also submitted a declaration as part of his appeal papers. Therein, plaintiff describes the following: (1) he suffers from constant burning pain; (2) he cannot sleep for more than two to three hours at a time due to pain and is therefore, constantly fatigued; (3) he suffers from poor memory such that he gets confused and forgetful of details; (4) he cannot focus or concentrate on any objective for any significant period of time; (5) he takes three medications daily, morphine sulfate, darvocet and loraxepam, all of which cause fatigue, loss of focus and concentration; (6) his wife helps him with most personal needs; (7) he reads religious materials and prays as much as he can; (8) he does exercises when his pain medications are at their peak; (9) he tries to swing his left shoulder to prohibit atrophy; and (10) he goes for walks daily. More specifically with respect to walking, plaintiff states that he only has some movement of his left arm for one to two hours after he performs physical therapy exercises at home:

After I complete the exercises; I normally have 1 to 2 hours of better arm movement. This is when I walk and try to swing my left shoulder to prohibit atrophy. . . . These walks are part of my physical therapy which helps my shoulder from becoming frozen and developing atrophy. Dr. Pai has encouraged me to walk and do whatever I can. . . .

This is why I can walk with some motion, bend my elbow and use my hand and fingers to grab something as simple as a letter as in the surveillance video . . . After one or two hours my shoulder, arm and hand exhibit more pain with movement and cause me to become more sedentary.

I am unable to do anything until the next day when I go through the same routine. This is also the reason I can't perform any movements as when examined by Dr.

Diaz, but he sees a video surveillance with some movement achievable and surmises that I could do it all day long or whenever I wish. I try to do the physical therapy exercises two acts a day, but it irritates my condition and is not physically possible. (AR 278-81.)

F. LICNA's Further Review and Denial of Plaintiff's Appeal

As a result of the additional information plaintiff submitted in support of his appeal, defendant engaged Dr. Donald Van Fossan, a board certified neurologist, to conduct a peer review of plaintiff's medical records prior to April 1, 2007. In his report of October 30, 2007, Dr. Van Fossan concluded that plaintiff's medical condition did not preclude him from working in any occupation. (AR 199-201.) Specifically, as to the two issues plaintiff emphasized in his appeal, his side effects from medication and fatigue, Dr. Van Fossan found that the documentation in plaintiff's file did not support the conclusion that plaintiff was impaired from working due to side effects of medication. (AR 201.) He also found that no documentation supported the conclusion that plaintiff was precluded from working by symptoms of extreme fatigue. (Id.) Plaintiff complains that while Dr. Van Fossan reviewed plaintiff's underlying medical records, defendant did not provide Dr. Van Fossan with all of the materials plaintiff submitted on the appeal, including Dr. Pai's August 2007 letter, plaintiff's declaration and information regarding plaintiff's SSDI award.

By letter dated November 12, 2007, LINCA denied plaintiff's appeal, for the reasons stated in the original denial letter and based on the further findings of Dr. Van Fossan. (AR 196-98.)

On January 11, 2008, plaintiff filed suit in this court against defendant under ERISA, seeking reinstatement of his LTD benefits and payment of all past benefits due under the policy with applicable interest. (Compl. at 4; Pl.'s Trial Brief at 24.) In February 2009, the parties filed cross-motions for judgment in their favor based on a stipulated administrative record, which the court now considers and renders its decision thereon.


The policy at issue is a long term disability benefits policy governed by ERISA. In Firestone Tire 7 Rubber Co. v. Bruch, the United States Supreme Court held that a challenge to the denial of benefits under an ERISA plan is reviewed de novo "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." 489 U.S. 101, 115 (1989). Where a plan document gives an administrator such discretionary authority, a court must apply the "abuse of discretion" or "arbitrary and capricious" standard of review to the administrator's decision to deny benefits. Id. at 111; see also Abatie v. Alta Health & Life Insur. Co., 458 F.3d 955, 963 (9th Cir. 2006).

In this case, however, the parties agree that no such discretionary provision exists in the policy and thus the de novo standard of review applies. (Def.'s Trial Brief at 20; Pl.'s Trial Brief at 14.) Under de novo review, the court determines whether the plaintiff is entitled to benefits under the terms of the policy without deference to either party's interpretation.

Firestone Tire & Rubber Co., 489 US at 112. "If de novo review applies, no further preliminary analytical steps are required. The court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits . . . ." Abatie, 458 F.3d at 963. Pursuant to Federal Rule of Civil Procedure 52(a), the court conducts what is essentially a bench trial on the administrative record. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999). Thereunder, the court must undertake an independent and thorough inspection of LICNA's decision and exercise its informed judgment without reference to that decision. Silver v. Executive Car Leasing Long Term Disability Plan, 466 F.3d 724, 733 (9th Cir. 2006). The court gives no deference to either LICNA's factual findings or its legal conclusions. Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065, 1068-70 (9th Cir. 1999).

Ultimately, under a de novo standard of review, the plaintiff has the burden of proving his or her eligibility for benefits under the terms of the policy by a preponderance of the evidence.*fn7 Sabatino v. Liberty Life Assurance Co. of Boston, 286 F. Supp. 2d 1222, 1232 (N.D. Cal. 2003) ("Plaintiff must carry the burden to prove that she was disabled under the meaning of the plan . . . ."). Thus, here, plaintiff must prove, it is more likely than not, that he is totally disabled under the "any occupation" standard set forth in the policy.*fn8


Plaintiff filed this action to recover benefits under Tandem's employer-provided LTD policy, which is administered by LICNA. Pursuant to section 502(a) of ERISA, which governs such policies, the beneficiary of an ERISA plan may bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1332(a)(1)(B); see also Taft v. The Equitable Life Assurance Soc'y, 9 F.3d 1469, 1471 (9th Cir. 1993). Plaintiff asserts that LICNA erred in terminating his benefits after payment of the same for 17 years; he seeks prospective reinstatement of his benefits and payment of all past benefits due since March 2007, with applicable interest. Defendant contends that under its continuing right to review plaintiff's claim for benefits, it properly terminated his benefits in light of the current evidence which demonstrated that plaintiff was no longer totally disabled within the terms of the policy.

More specifically, defendant contends that plaintiff's claimed, continued disability was based wholly on subjective complaints of chronic pain and hypersensitivity which were not credible in light of the surveillance performed on plaintiff, plaintiff's refusal to cooperate in an FCE and the findings of the IME by Dr. Diaz. Defendant also maintains that Dr. Pai's opinions lack credibility in light of this evidence. Furthermore, defendant asserts that even if the court found that plaintiff can demonstrate that he suffers from a chronic disease, he cannot establish that the diagnosis renders him disabled from performing "any occupation," which under the controlling case law presents a high threshold. Defendant argues there is no evidence in the administrative record to establish why plaintiff cannot perform his intellectually driven occupation as an engineer, even if the court accepts the evidence of his claimed impairment as credible.

The court finds for the reasons set forth below that plaintiff has not demonstrated, by a preponderance of the evidence, that he is totally disabled within the terms of the subject policy. Plaintiff's claims of a disabling disease lack credibility and the objective record evidence does not support his claims. Moreover, even if the court were to find plaintiff's claim of a debilitating disease credible, plaintiff has not shown that it is more likely true than not, that he cannot perform all the material duties of any occupation for which is qualified or could become qualified.

Before addressing these issues in turn, the court must consider first, plaintiff's preliminary argument that defendant should be judicially estopped from asserting that plaintiff is not disabled under the policy due to defendant's representation of plaintiff in the SSA proceedings. Contrary to plaintiff's contentions, the fact that defendant assisted plaintiff in obtaining SSDI benefits in 1994 does not preclude defendant from arguing that plaintiff is not disabled 13 years later based on evidence that did not exist in 1994. The equitable doctrine of judicial estoppel precludes a party from taking inconsistent factual positions in judicial proceedings. See New Hampshire v. Maine, 532 U.S. 742 (2000) (holding that the plaintiff was equitably barred from asserting, contrary to its position in prior 1970's litigation, that the inland Piscataqua River boundary runs along the Maine shore). The doctrine is wholly inapplicable here.

First, plaintiff took the position in the 1994 SSA proceedings that he was disabled, not defendant, and thus, plaintiff cannot establish an inconsistent position by defendant, even assuming the SSA proceedings constitute "judicial" proceedings. Second, plaintiff's position in 1994 that he was disabled is not inconsistent with defendant's position that plaintiff is not disabled 13 years later, in March 2007. The subject policy requires plaintiff to provide on-going proof of disability. (AR 23.) Defendant is entitled to investigate this proof of loss and make a monthly decision concerning whether benefits are payable based on the proof of loss. Erreca v. Western States Life Ins. Co. 19 Cal. 2d 388, 402 (1942) (holding that a disability insurance policy "constitutes a continuing contract for periodic installment payments depending upon the insured's continued disability" and that an "insurer's liability for future benefits is contingent upon the existence of total disability at the time"). Thus, the fact that defendant assisted plaintiff in obtaining SSDI benefits in 1994 has no impact on defendant's right to investigate the continued proof of loss by plaintiff, and to make the ultimate determination that the proof does not establish the existence of a disability, under the any occupation standard, 13 years after SSDI benefits were awarded. Indeed, most of the evidence relied on by defendant to conclude in 2007 that plaintiff is not disabled under the policy did not exist in 1994, including the video surveillance, Pittman's FCE, Dr. Diaz's IME and the TSA, and therefore, there is no conflicting position at issue.

Finally, plaintiff's general emphasis on his SSDI award as conclusive proof of his continued disability is not persuasive. Courts consistently recognize that there are critical legal differences between disability determinations made in SSA proceedings and ERISA actions. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832-33 (2003) (holding that "critical differences between the Social Security disability program and ERISA benefit plans caution against importing a treating physician rule from the former area into the latter"); Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279, 1285 (9th Cir. 1990) (upholding a denial of long-term benefits under the "any occupation" standard even when social security disability benefits had been awarded). Additionally, and most significantly, as set forth above, plaintiff was awarded SSDI benefits on January 31, 1994; the primary evidence defendant considered in deciding to terminate plaintiff's LTD benefits was obtained over ten years later in 2005 through 2007. As such, for these further reasons, plaintiff's SSDI award has little, if any, relevance to these proceedings.

Turning to the critical inquiry, whether plaintiff has demonstrated he is totally disabled within the terms of the policy, the court must start its analysis by looking at the "terms of the plan itself." Nelson v. EG & G Energy Measurements Group, Inc., 37 F.3d 1384, 1389 (9th Cir. 1994). Here, plaintiff faces a high burden to establish disability. Saffle v. Sierra Pacific Power Co. Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 459 (9th Cir. 1996). The policy requires that to be entitled to LTD benefits, plaintiff must show he is "unable to perform all the material duties of any occupation for which he is or may reasonably become qualified based on his education, training, and experience." (AR 5.) The Ninth Circuit has recognized that this is a difficult standard to meet, as it requires a plaintiff to show that he cannot perform every material duty of any occupation for which is qualified or may reasonably become qualified based on his education and experience. McKenzie v. Gen. Tel. Co. of Cal., 41 F.3d 1310, 1317 (9th Cir. 1994); see also Ellis v. Liberty Life Assur. Co. of Boston, 394 F.3d 262, 270 (5th Cir. 2005). Here, defendant's TSA concluded that plaintiff could perform the jobs of project engineer, production planner or general supervisor. (AR 840-43.)

Plaintiff maintains, to the contrary, that he is totally disabled from performing any occupation due to his RSD, which he has suffered from since 1990. Plaintiff contends he suffers from chronic, unrelenting pain in his upper left extremity due to the RSD, and that his condition is compounded by the narcotic medications he takes to mitigate the pain; as a result of his condition and, particularly, the medications, plaintiff claims a complete inability to focus and concentrate and extreme fatigue.

However, plaintiff's claims, and his doctor's findings based entirely thereon,*fn9 are not sufficiently credible in light of the evidence in the administrative record. The multiple contradictions established by the evidence in the record make it impossible for plaintiff to meet his burden of proof in this case.

For example, plaintiff's complaints of severe pain are seriously undermined by the surveillance tape. Contrary to plaintiff's claims from 2003 to 2005, on his daily activity questionnaires to defendant, that he only walks daily "around the house" for 10 to 15 minutes, plaintiff is seen on the tape walking outside his home, in a rural area, for extended periods of up to an hour and a half, traveling approximate distances of up to 5 miles. He has free range of motion and does not appear to be favoring his left side in any respect. Plaintiff's activity on the tape is wholly inconsistent with his representations to defendant and to Pittman during the FCE. Like his previous statements to defendant, plaintiff told Pittman he was only able to walk around his house for limited periods (AR 944), and he stopped the six minute walk test Pittman gave him after 3 minutes, indicating he could not go any longer (AR 950-51, 954-55). Indeed, plaintiff consistently claimed to defendant and his doctor, that the pain on his left side is so severe that even air blowing over his left arm and hand caused him a very uncomfortable sensation, and that his left hand could not be moved or even straightened. (AR 1030.) He made similar complaints to Pittman (AR 944, 1236), yet, on November 7, 2005, plaintiff is seen walking on the video, on a clearly windy day, freely swinging his left arm and hand as he walked alone for over a hour. Additionally, that same day, plaintiff is observed, voluntarily and without hesitation, using his left hand and arm to open a garbage can lid.*fn10

Plaintiff is also seen using his left hand to reach into his front shirt pocket. Again, his movement is voluntary and without hesitation. This is directly contrary to the representation he made to Dr. Diaz, just months later during the IME, specifically denying the ability to perform this precise task. Dr. Diaz asked plaintiff to take a kleenex out of his left pocket, and contrary to what is seen on the video, plaintiff stated he could not do it, and that he had not been able to do so since the traffic accident. (AR 1153.)*fn11

In response to this evidence, plaintiff emphasizes his declaration submitted in support of his appeal, wherein he explains that he walks daily after performing certain physical therapy exercises which permit him, for limited periods of time, to perform some physical activity, like the level of walking shown on the surveillance tape. Plaintiff's declaration is not persuasive evidence in support of his claims; it was drafted after plaintiff knew of the surveillance and it is inconsistent with his prior representations about his level of physical activity. At no point previously did plaintiff disclose that he could walk to the levels seen on the videotape. Indeed, he consistently claimed that he could only walk up to 10 to 15 minutes daily and that he walked "around [inside] the house." He never reported to defendant that he walked around his neighborhood, on trails, as part of his physical therapy or otherwise. Nor did he report that his physical therapy exercises permitted him to engage in physical activity for up to 2 hours where he was able to move his left arm and shoulder freely.

Finally, contrary to plaintiff's representations to defendant, he is seen on the surveillance tape driving his wife to the gas station, on what appears to be a simple errand, not an emergency situation.

In addition to the surveillance tape, the record reveals other significant contradictions. Plaintiff claimed to Dr. Diaz that he could not sit for more than a half hour, yet Pittman reported that plaintiff sat, without complaint, for the 60 minute drive to her office for the appointment and for 66 minutes during the FCE. (AR 950, 954.) Additionally, plaintiff's wife told Dr. Diaz that plaintiff gets in the sauna tub at home and lets the jets run on him (AR 1151); this flatly contradicts plaintiff's statements to Pittman that he cannot take a shower because he cannot tolerate the water hitting his left arm (AR 944). Plaintiff does not deny that he and his wife made these statements to Dr. Diaz in either his declaration submitted in support of his appeal or in the papers filed in this court.

Furthermore, there is a general lack of objective evidence in the record to support plaintiff's continuing complaints of pain. Over the course of the nearly 17 years he received LTD benefits from defendant, plaintiff saw only one primary doctor, Dr. Pai, and he saw him on average only once a year. Considering the alleged severity of plaintiff's claimed aliments, the lack of treatment he received is telling. In other words, the frequency and extent of the treatment plaintiff received, as reflected in the administrative record, does not match the severity of plaintiff's alleged symptoms. For example, plaintiff claims that his chronic pain from RSD has caused him to suffer debilitating cognitive problems and sleep deprivation. Yet, nothing in plaintiff's records reveal any efforts by physicians to find medications or any other ways to resolve these issues; there are no referrals by Dr. Pai to sleep specialists or a pain management specialist to attempt to resolve these problems. As such, plaintiff cannot persuasively argue that these specific symptoms were so severe as to prevent him from working in any capacity.

Relating to his physical condition, it is particularly significant that there is no evidence in the record demonstrating that plaintiff suffers from atrophy of his left upper extremity. The absence of atrophy discredits plaintiff's contention that his left arm and hand have been largely immobile for the last 17 years. Finally, plaintiff stressed in his appeal the amount of pain medications he takes to mitigate his symptoms. Specifically, plaintiff emphasized that in May 2007, Dr. Pai increased his morphine prescription. However, Dr. Pai in his May 1, 2007 doctor's note did not indicate a basis for doing so (AR 210); Dr. Pai did not indicate that plaintiff's alleged condition had changed, and there is nothing in the records to otherwise support an increase in plaintiff's medications. Moreover, that the increase was given, without explanation, during the course of plaintiff's appeal of the termination of his benefits makes it suspect and certainly does not conclusively establish the existence of a disability, as plaintiff contends.

Furthermore, relating to plaintiff's mental condition, while plaintiff claims to suffer from depression due to his RSD, there are no records to substantiate a clinical finding of depression; Dr. Pai did not treat plaintiff for depression, and there are no records to substantiate that plaintiff received any psychiatric treatment for depression. Similarly, plaintiff's claims of a complete inability to focus and concentrate and extreme fatigue due to his condition, and more specifically, the pain medications he takes, are not supported by any objective evidence in the record. Indeed, it was only during the course of his appeal of defendant's termination of his benefits, that plaintiff emphasized these purported debilitating effects of his disease. After reviewing plaintiff's past medical history and records, however, Dr. Van Fossan found plaintiff's claims unsupported. (AR 201.)*fn12 The absence of evidence to establish a disability based on the side effects of his medications is most glaringly illustrated by the fact that plaintiff cites to only his declaration submitted on the appeal as evidence to support his claims. This is all the record evidence plaintiff has, as in Dr. Pai's various reports over the years, he does not mention anything about the side effects of plaintiff's medications, let alone that plaintiff's medications are having debilitating effects.

In sum, the court finds that plaintiff cannot establish, by a preponderance of the evidence, that he is totally disabled from any occupation because his claimed disability is based primarily on his subjective complaints of chronic pain, cognitive problems and sleep deprivation which are not credible in light of the totality of the record evidence. The surveillance conducted by defendant, the FCE by Pittman and the IME by Dr. Diaz provide compelling evidence that plaintiff is misstating or overstating his subjective complaints.

Notwithstanding this finding, the court further concludes that even if plaintiff's claims were credible, plaintiff has not shown why the RSD in his upper left extremity precludes him from performing in his intellectually driven occupation as an engineer. The Ninth Circuit has recognized repeatedly that simply because "a person has a true medical diagnosis . . . does not by itself establish disability." Jordan v. Northrop Grumman Corp. Welfare Benefit Plan (Jordan II), 370 F.3d 869, 880 (9th Cir. 2004) (upholding the denial of the plaintiff's benefits claim not because plaintiff failed to demonstrate the existence of a medical condition [fibromyalgia] but because the plaintiff was unable to prove that her physical disability kept her from performing her job).

Here, plaintiff is an electrical engineer with training in the Navy and 10 years of industry experience. He is right hand dominant, and it is undisputed that plaintiff's claimed impairment is to his left upper extremity only. Plaintiff's job description from Tandem and the TSA by defendant establish that plaintiff's job duties as an engineer are performed by his intellect and have little or no physical requirements. The TSA identified three potential jobs for plaintiff: project engineer, production planner and general supervisor. Plaintiff points to no evidence in the administrative record that establishes why plaintiff cannot use his mind and his right and lower extremities to perform these jobs. Plaintiff's sole reliance on Dr. Pai's opinions is unavailing. Throughout his many reports on plaintiff's condition over the years, while Dr. Pai makes detailed findings with respect to his diagnosis of plaintiff's RSD condition, his reports are devoid of any specific discussion of why plaintiff's condition precludes him from performing at any occupation. See e.g., Mitchell v. Aetna Life Insur. Co., 359 F. Supp. 2d 880, 890 (C.D. Cal. 2005) (granting summary judgment in favor of the defendants on the grounds the plan administrator did not abuse its discretion in denying the employee's LTD benefits claim based on the employee's "subjective reports of pain and her doctors' unexplained conclusory opinions that she was disabled from performing any job").

In fact, it was not until his August 24, 2007 letter to defendant, submitted in support of plaintiff's appeal, that Dr. Pai attempts to set forth in any detail his basis for believing that plaintiff cannot work in any capacity. Dr. Pai's belated opinions cannot be given substantial weight. Prior to defendant terminating plaintiff's benefits, it sought Dr. Pai's opinions in January 2007, providing him with the SIU investigation, Pittman's FCE and Dr. Diaz' IME. Dr. Pai responded that he had nothing additional to add to plaintiff's claim. It was only after defendant's termination of benefits and as part of plaintiff's appeal, that Dr. Pai saw fit to critique and disagree with Pittman's and Dr. Diaz' findings. Dr. Pai's untimely criticism is unpersuasive.

Plaintiff's limitations to his upper left extremity, even assuming they are true, would not impede his ability to perform at jobs requiring primarily use of plaintiff's intellect. Additionally, as set forth above, plaintiff has not established any mental impairment as a result of the RSD to his left side. The record does not support a finding that plaintiff suffers from depression which precludes him from working, and likewise, there are no records to support a finding that plaintiff suffers from extreme fatigue or other mental side effects from his pain medications to such a degree that he is precluded from performing at any occupation. There is simply no objective medical evidence of any memory or concentration deficits beyond plaintiff's own subjective complaints---complaints which were largely raised for the first time only during the appeal of defendant's termination of plaintiff's benefits.

As such, for these alternative reasons, the court finds that plaintiff has not shown by a preponderance of the evidence, that he is totally disabled from working at any occupation for which is qualified or could become qualified based on his education and experience as an engineer. There is no credible evidence in the administrative record that establishes why plaintiff is unable to work in any occupation in light of the fact that he has no documented mental impairment that prevents him from working and he has unlimited physical capacity on his right side and lower extremities. Plaintiff's current medical records support a finding that plaintiff is capable of working in a sedentary to light work capacity in his intellectually driven field of engineering.


For the foregoing reasons, the court GRANTS defendant's motion for judgment on the administrative record and HEREBY enters judgment in defendant's favor. Accordingly, plaintiff's cross-motion for judgment in his favor is DENIED. The Clerk of the Court is directed to close this file.


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