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James Barron v. Ashland

October 21, 2011

JAMES BARRON
v.
ASHLAND, INC., ET AL.



The opinion of the court was delivered by: Present: The Honorable S. James Otero, United States District Judge

Priority Send Enter Closed JS-5/JS-6 Scan Only

CIVIL MINUTES - GENERAL

Victor Paul Cruz

Courtroom Clerk

COUNSEL PRESENT FOR PLAINTIFF:

Not Present

Not Present

Court Reporter

COUNSEL PRESENT FOR DEFENDANTS:

Not Present

PROCEEDINGS (in chambers): FINDINGS OF FACT AND CONCLUSIONS OF LAW

The instant case arises under the Employee Retirement Income Security Act of 1974 ("ERISA"). The Court found this matter suitable for disposition without oral argument and vacated the trial date set for March 18, 2011. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999) (en banc) ("[T]he district court may try the case on the record that the administrator had before it."). The parties also submitted the bench trial for decision on the briefs. (See Docket No. 56, at 2:3-5.) Having carefully reviewed the administrative record and the arguments of counsel, the Court makes the following findings of fact and conclusions of law pursuant the Federal Rule of Civil Procedure ("Rule") 52. Any finding of fact which is more appropriately deemed a conclusion of law, or vice versa, is so deemed. For the reasons discussed below, the Court enters judgment in Plaintiff James Barron's ("Plaintiff") favor.

FINDINGS OF FACT

1. Ashland, Inc. ("Ashland") is the designated plan administrator of the Ashland Long Term Disability ("LTD") Plan ("Plan"). (Administrative Record ("A.R.") 992-1000.) The Plan grants Ashland, the plan administrator, the right to "delegate fiduciary responsibilities to one or more persons . . . to render advice with respect to its fiduciary duties." (Id. at 1000.) Ashland designated Prudential Insurance Company of America ("Prudential") (collectively, "Defendants") with "the authority and responsibility to decide claims for plan benefits." (Id. at 1580.) The Plan states that "Prudential is the 'appropriate named fiduciary' under [ERISA]." (Id.) Prudential, thus, is a claim administrator of the Plan. (Id. at 997.)

2. Under the Plan, an employee is considered disabled and eligible for benefits for the first 24 months if medical evidence, satisfactory to the claim administrator, shows that the employee cannot perform the functions of his regular occupation. (A.R. 994.) After the first 24 months, an employee is deemed disabled and eligible for benefits if the employee is unable to perform the physical functions of any occupation for which he is reasonably qualified by education, training, and experience, or for which he may be reasonably retrained or rehabilitated. (Id.) An employee who is disabled before the age of 60 will receive benefits until he reaches 65 years old. (Id. at 996.) The claims administrator may require a claimant to undergo a medical examination at the time a claim is filed or after the claim is approved. (Id. at 994, 997.)

3. Pursuant to the Plan, if a claim is denied, Prudential is required to include "a description of additional materials or information needed to process the claim" and an explanation "why those materials or information are needed." (A.R. 998.) On appeal, Prudential cannot give any deference to the initial claim denial. (Id.) The Plan also mandates that Prudential consult a health care professional having appropriate training and experience if a decision on the appeal requires medical judgment. (Id.) Where medical and vocation experts provided advice in connection with a claim, Prudential must identify the experts, irrespective of whether Prudential relied on the given advice. (Id.) Internal guidelines interpreting the Plan's provisions state that Prudential may not use the same medical consultant at any stage. (Id. at 1092.)

4. Plaintiff was employed by Ashland as a Senior Technology Service Representative. (A.R. 305.) He is 56 years old and the father of three children. (Id. at 46, 304.) After graduating from college in 1976, he went to work for The Dow Chemical Company. (Id. at 712.) During this period, he was traveling 25% of the time. (Id.) He obtained several patents, co-authored numerous papers, and received several promotions. (Id.)

5. In 1992, Plaintiff experienced reoccurring flu-like symptoms and extreme fatigue. (A.R. 451.) During this period, he underwent extensive and intrusive medical tests to determine the cause of his illness, including blood works, allergy tests, and a sleep study. (Id.) He was diagnosed with Chronic Fatigue Syndrome ("CFS") in 1995; this diagnosis was confirmed in 1997 by a separate physician. (Id.) Plaintiff continued to experience fatigue, flu-like symptoms, sleep disorder, headaches, muscle and joint pain, sore throat, and swollen lymph glands. (Id. at 453.)

6. CFS "is a clinically defined condition . . . characterized by severe disabling fatigue and a combination of symptoms that prominently features self-reported impairments in concentration and short-term memory, sleep disturbances, and musculoskeletal pain." Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 677 (9th Cir. 2011). "The origins of . . . CFS are either unknown or not properly understood, [its] symptoms are largely subjective and vary in intensity from patient to patient." Linich v. Broadspire Servs., Inc., No. CV-05-2983, 2009 WL 775471, at *9 (D. Ariz. Mar. 23, 2009). "CFS present[s] problems in the world of disability law; for plan administrators who have to determine the weight of a claimant's highly subjective symptoms, and for reviewing courts who ultimately pass over their judgment." Id.

7. Plaintiff's health deteriorated profoundly in 1999. (A.R. 456.) He began to work part-time, working approximately three to four days out of the week. (Id.) In September 1999, he went on medical leave for several months. (Id.) After, the Dow Chemical Company allowed Plaintiff to work half the time for half the pay. (Id. at 713.) Plaintiff eventually recuperated enough to work full-time again. (Id.)

8. In 2004, Plaintiff's business unit was sold to Ashland. (A.R. 714.) Ashland interviewed and hired Plaintiff to do similar work. (Id.) The new position with Ashland, however, required more traveling - up to three to four days per week. (Id.) Most of the customer sites he visited were in the Gulf Coast with 110 degrees Fahrenheit and 90% humidity. (Id.) In 2006, Plaintiff noticed his health deteriorating, especially after a two-week, high-profiled business trip to the Philippines. (Id.) After the trip, he found himself not able to get out of bed. (Id.) Plaintiff could not travel to see customers and, if he did, he did not have the strength to work. (Id.) He could not concentrate, lost track of assignments, and was unable to do menial tasks. (Id.)

9. Plaintiff stopped working on August 6, 2007. (A.R. 308.) On August 19, 2007, he submitted his claim for LTD benefits. (Id. at 304.) With his application, he provided medical records from Dr. Cheney and Dr. De Voke, a record of his CFS Health History, and an Activities of Daily Living Questionnaire. (Id. at 9-18.) In the application, he testified that he had to lay in bed or on the couch when not working because of the fatigue. (Id. at 10.) The medical records also showed that his cardiac index went from 3.6 in 2005, to 2.5 in 2006, to 1.76 in 2007. (Id.) The normal range of cardiac index is 2.6 - 4.2 L/min per square meter. Wikipedia, Cardiac Index, available at http://en.wikipedia.org/wiki/Cardiac_index (last visited Aug. 10, 2011). A patient may be in cardiogenic shock if his cardiac index falls below 1.8. (A.R. 10.) Plaintiff proffered evidence that low levels of cardiac output correlated to severe CFS. (Id. at 43.) Plaintiff also provided testimony regarding his muscle and hip joint pain, which were inflamed and misaligned. (Id.) Plaintiff stated that he continued to experience fatigue, flu-like symptoms, sleep disorder, headaches, short term memory loss, sore throat, and swollen lymph glands. (Id. at 11-12.)

10. In November 2007, Prudential questioned Plaintiff on his disability claim. Plaintiff explained that he has been taking aggressive treatments for his sleep disorder; however, he stated that he did not have Sleep Apnea and does not use a C-Pap machine. (A.R. 229.) On January 14, 2008, Prudential spoke by telephone with Troy Wade ("Wade"), Plaintiff's supervisor at Ashland. (Id. at 232-33.) Wade explained that Plaintiff "did not have any absences from work," "was a wonderful employee," and "there were no issues." (Id. at 233.) Wade stated that Plaintiff would be accepted back to work without a doubt. (Id.)

11. Plaintiff's medical records were reviewed by Dr. Albert Kowalski, a Claim Manager, Vice President, and Medical Director for Prudential. (A.R. 200-02.) Dr. Kowalski did not find the cardiac index results credible and, without evidence, questioned the personnel who performed the test and the equipment used. (Id. at 209.) Dr. Kowalski also found "the diagnosis of CFIDS . . . questionable" because, in his opinion, there was "no medical evidence" to support the Plaintiff's subjective testimony. (Id. at 201); but see Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 866 (9th Cir. 2008) ("[W]e have noted that individual reactions to pain are subjective and not easily determined by reference to objective measurements.").

12. On January 29, 2008, Prudential denied Plaintiff's claim because it believed that Plaintiff could perform the duties of a chemical engineer. (A.R. 32.) The letter incorporates much of Dr. Kowalski's findings, although the letter never identifies him or his credentials. (Id. at 30-33.) No mention is made about Plaintiff's abnormally low cardiac index. (Id.) Moreover, Prudential labels Plaintiff's position as "sedentary in physical demand level," contrary to the "heavy" designation given by Ashland. (Id. at 31.) The letter does identify certain tests that Plaintiff did not undergo, such as a mini-mental status examination, MRI testing, and sleep studies. (Id. at 32.) The letter does not mention the sleep study Plaintiff underwent in 1996 which ruled out Sleep Apnea. (Id. at 452.) Nor is the conversation with Plaintiff's supervisor in the letter.

13. Plaintiff appealed the denial of LTD benefits on January 29, 2008, submitting additional documentation, including rebuttal letters from Plaintiff and Dr. Cheney. (A.R. 34-51.) In his rebuttal letter, Plaintiff pointed out the discrepancy between Ashland's description of his position as "heavy" versus Prudential's characterization of "light" physical demand. (Id. at 34.) He also explained that he has not been able to work with CFS for the past 13 years; rather, he has had to take multiple leaves of absence and work part-time. (Id.) Lastly, he stated that Prudential ignored his declining health, as evidence by his abysmal cardiac index. (Id. at 35.) Dr. Cheney, in addition to mentioning Plaintiff's cardiac output, explained that Plaintiff exhibited "reversed cortisol response" to exercise, falling from 5.6 mcg/dl pre-exercise to 3.4 mcg/dl. (Id. at 48.) Cortisol is released by the adrenaline gland in response to stress, like physical exercise. (Id.) Dr. Cheney stated that individuals with CFS are known to have defects in their stress response system and that the reverse cortisol response "render[s] . . . [Plaintiff] incapable of sustained activity in any workplace environment." (Id.) Dr. Cheney also highlighted that there is evidence of severe reduction in oxygen consumption by Plaintiff at peak exercise, which is commonly found in people with CFS. (Id.)

14. Prudential denied Plaintiff's first request for reconsideration. (A.R. 58.) In denying the appeal, Prudential relied on two health care processionals to review Plaintiff's claim. (Id. at 53-56.) The denial of LTD benefits were based on their expert advice. (Id.) Yet, Prudential did not disclose the identities of the experts. (Id. at 58-62.) They were Dr. Paul Howard and Dr. Mark Eaton. (Id. at 354-60, 371-74.) The letter denying the appeal contained no evaluation of the evidence provided by Dr. Cheney regarding Plaintiff's low oxygen consumption, reverse cortisol response to stress, and low cardiac index. (Id.) Instead, Dr. Howard "deferred" evaluations on the evidence, while Dr. Eaton made no mention of it. (Id. at 60-61.) The letter seemingly repeats the same reasoning over and over again, as if it were a cut and paste. (Id. at 61 (repeating several sentences word for word).) In response to Plaintiff pointing out the discrepancy in the description of his position, Prudential stated that Plaintiff had "the functional capacity to perform sedentary, light, medium or heavy work activity." (Id.) Prudential wrote that Plaintiff provided no evidence of motor weakness, joint abnormalities, muscular atrophy or neurologic abnormalities, abnormalities in station or gait, or measures of impaired cognition or memory. In doing so, Prudential ignored Plaintiff's self reporting and other evidence.

15. On March 10, 2009, Plaintiff submitted a second appeal with new documentation in support of his claim. Included with his appeal, Plaintiff provided a neuropsychological report by Dr. Bastien, a cardiopulmonary evaluation by the Pacific Fatigue Laboratory, a brain SPECT Scan, Dr. Cohen's Neurological Consultation evaluation, and Dr. Silverman's Disability Evaluation. Plaintiff's brain SPECT Scan was "markedly abnormal, suggesting serious brain dysfunction." (A.R. 557) There was evidence of mild scalloping (lack of smoothness) of the brain, which is "often associated with toxic exposure . . . infection or oxygen deprivation. It may be seen present when overall activity is very low." (Id. at 593.) The Pacific Fatigue Laboratory evaluation stated that, despite providing excellent effort, Plaintiff's pulmonary ventilation (lung function) was less than 40% of a normal individual. (Id. at 577.) Such "abnormally low" respiratory rate can cause "a prolonged recovery period after physical exertion." (Id.) In addition, Plaintiff's oxygen consumption during physical exertion was 57% of a normal individual. (Id. at 576.) The evaluation placed Plaintiff "in the moderate to severe functional impairment category." (Id.) Plaintiff's neurological test showed several areas where he was below normal. For instance, his verbal fluency was below the cutoff for ...


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