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Eisner v. Prudential Insurance Co. of America

United States District Court, N.D. California

January 22, 2014

DEBRA J. EISNER, Plaintiff,
v.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant

Page 1105

For Debra J. Eisner, Plaintiff: Julian M. Baum, LEAD ATTORNEY, Lisa Ann Lawrence, Julian M. Baum & Associates, Novato, CA.

For The Prudential Insurance Company of America, Defendant: Linda Marie Lawson, LEAD ATTORNEY, Cindy Mekari, Meserve Mumper & Hughes LLP, Los Angeles, CA.

Page 1106

ORDER RE: CROSS-MOTIONS FOR JUDGMENT AS A MATTER OF LAW

JON S. TIGAR, United States District Judge.

In this appeal of the denial of disability benefits under an ERISA plan, the parties have filed cross-motions for judgment as a matter of law. The Court held a bench trial on December 6, 2013. The Court will grant in part and deny in part Plaintiff's cross-motion and deny Defendant's motion. The following constitutes the Court's Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).

I. FACTS

A. Plaintiff's Employment

Plaintiff Debra Eisner, born 1956, was employed by Surgical Care Affiliates as an " Administrator - SC." R. 303, 362. She was hired by Surgical Care in 1991. R. 389.[1] An Administrator - SC " [d]irects the development of short and long range objectives, budgets, and operating plans for the center" and " [a]dministers, directs, and coordinates all activities of the surgery center to carry out its objectives in the provision of health care, and participation in community health programs." R. 303. Under the heading " Environmental conditions," the position description provides that administrators are " [s]ubject to long, irregular hours; occasional pressure due to multiple calls and inquiries." R. 304. The positions' physical requirements include: " [o]ccasional pushing, pulling, bending, and lifting; sitting, standing, some travel required. Must meet physical requirements for appropriate position description if providing direct patient care." Id.

Plaintiff stopped working on March 15, 2010, " due to symptoms of chronic fatigue syndrome, myalgia and mytosis, allergic rhinitis, hip pain, depression and long history of fibromyalgia." R. 362, 449. In July 2010, Plaintiff submitted a claim to Defendant The Prudential Insurance Company of America for benefits under Surgical Care's group Long Term Disability (" LTD" ) Plan.

B. The Long Term Disability Plan

The LTD Plan defines disability as follows: " You are disabled when Prudential determines that: you are unable to perform the material and substantial duties of your regular occupation due to your sickness or injury; and you are under the regular care of a doctor; and you have a 20% or more loss in your monthly earnings due to that sickness or injury." R. 58 (emphasis omitted). After twenty-four months, LTD coverage will extend to claimants only if are " unable to perform the duties of any gainful occupation for which [they] are reasonably fitted by education, training or experience" as long as they are under the regular care of a doctor. Id. (emphasis omitted).

Under the Plan, " material and substantial duties" are duties that " are normally required for the performance of [the claimant's] regular occupation; and cannot be reasonably omitted or modified," except that Prudential considers claimants able to perform the requirement of working in

Page 1107

excess of forty hours per week even if claimants are required to work, on average, more than forty hours a week. Id. " Regular occupation" means the occupation a claimant is " routinely performing" when the disability begins, with regard only to how the occupation is " normally performed instead of how the work tasks are performed for a specific employer or at a specific location." Id.

The Plan requires a claimant's disability to remain continuous throughout the " elimination period" of 180 days or the length of time for which the claimant receives short term disability benefits or sick leave, whichever is longer. R. 60. The Plan considers a disability continuous if the disability " stops for 30 consecutive days or less during the elimination period." Id.

The Plan also limits benefits to twenty-four months for sicknesses or injuries " primarily based on self-reported symptoms." R. 68. The self-reported symptoms limitation was the subject of an earlier Order of the Court, in which the Court found that the limitation does not apply to Plaintiff's diagnosis of fibromyalgia. ECF No. 50.

Prudential denied Plaintiff's claim on November 23, 2010, and denied her appeal of that denial on February 28, 2012. Plaintiff filed this appeal of that decision on March 12, 2012.

C. Plaintiff's Medical Records

In evaluating Plaintiff's disability claim, Prudential obtained medical records from three of Plaintiff's treating physicians: Dr. Marian Beshara, Plaintiff's primary care physician; Dr. Geetha Paladugu, Plaintiff's Psychiatrist; and Dr. Richard Munson, Plaintiff's allergist. In support of her appeal of the initial denial of benefits, Plaintiff submitted additional medical evidence: a report from the Pacific Fatigue Laboratory, and an independent medical examination and file review performed by Dr. Stuart Silverman. Prudential also obtained additional records from Doctors Munson and Paladugu during the pendency of the appeal.

1. Medical Records from Dr. Beshara

Dr. Beshara's medical records pertaining to Plaintiff range from 2008 to 2011. They reveal a years-long struggle to identify a satisfactory treatment for Plaintiff's symptoms -- in particular, Plaintiff's chronic fatigue and fibromyalgia.

On January 18, 2008, Dr. Beshara saw Plaintiff for a follow-up on her fibromyalgia. Dr. Beshara wrote: " The problem is since December the fibromyalgia is acting up on her and she has pain and she read about Lyrica and she wants to try it . . . ." R. 316. Dr. Beshara put Plaintiff on Lyrica twice a day " to see if this can help or not." Id. In April 2008, Dr. Beshara again noted that Plaintiff's " only complaint is she feels fatigued most of the time." R. 317. Dr. Beshara saw Plaintiff again on April 23, 2008, because she had a colonoscopy that led to fever and abdominal pain. R. 315. After visiting the emergency room, Plaintiff underwent surgery due to a perforation of the colon and signs of peritonitis stemming from the colonoscopy. " Now, she says she is doing well except she feels still fatigued and tired. She went back to work after 6-1/2 weeks of time off, and she is working around 7 to 8 hours a day but she still feels tired when she goes home." Id. Dr. Beshara noted that Plaintiff's fibromyalgia was better controlled on Lyrica and surmised that her fatigue could be due to the operation.

In September 2008, Plaintiff saw Dr. Beshara due to a rib fracture sustained in a boating accident. R. 314. Dr. Beshara again noted that Plaintiff's fibromyalgia was " currently controlled." Id. Dr. Beshara also noted that " she feels like she is too much stressed out. She feels like depressed.

Page 1108

She wants to adjust her medications." Id.

In October 2008, Plaintiff followed up again concerning her fibromyalgia and depression. Dr. Beshara noted: " Last time, she was more depressed and more tired. Her depression mainly arising from her feeling tired all the time. The patient went through a lot . . . . Last time, we switched her from Celexa to Cymbalta to help her with the fibromyalgia and chronic fatigue syndrome, but she does not feel any better as per her now . . . ." R. 313. Dr. Beshara adjusted Plaintiff's medications again.

In November 2008, Plaintiff again followed up on her fibromyalgia. Dr. Beshara noted the Cymbalta did not stem Plaintiff's fatigue. R. 311. Dr. Beshara's assessment and treatment plan noted that the fatigue could be multifactorial, and set a plan to check several of Plaintiff's organ functions. Id. Dr. Beshara also noted that the fatigue " started since she had the colonoscopy . . . ." Id. The note indicates that Plaintiff's pain was " controlled" but fatigue " still continues." Id.

Dr. Beshara's January 2009 note indicates Plaintiff began to feel better through a diet and exercise program. R. 310. In February, however, Dr. Beshara noted: " She still has the chronic fatigue which is bothering her with the fibromyalgia." R. 308.

The next note in the file from Dr. Beshara is dated October 4, 2010. It indicates that Plaintiff still suffered from chronic fatigue syndrome. R. 131. " It is not as bad as when she was working, stressful job, but she still has it . . . . The fibromyalgia as far as the pain is controlled. The only problem, the chronic fatigue which she has which is not improving a lot[sic]." Id.

Finally, after a February 2011 visit, Dr. Beshara noted: " The patient still has the same problem she has every time, which is the chronic fatigue. The patient had seen Dr. Munson, her allergist, and also he tried to treat her with many other modalities for her fibromyalgia. Gave her disability, and she is currently on disability, which is true, she is not that functioning good,[sic] even enjoying her time off, actually, still even most of the day lying in bed and staying in bed as per her." R. 129. That last note is the subject of some scrutiny by Prudential, which claims that Plaintiff is not disabled, in part, because she was " enjoying her time off." The full note, in context, paints a different picture, and the phrase " she is currently on disability, which is true, she is not that functioning good[sic]," shows that Dr. Beshara agreed that Plaintiff was disabled.

2. Medical Records from Dr. Munson

Unfortunately, all of Dr. Munson's progress notes are handwritten and largely illegible; indeed, Dr. Silverman noted difficulty in deciphering them as well in conducting his medical review of Plaintiff's file. R. 268. Nevertheless, Dr. Silverman's report indicates that Dr. Munson's notes report Plaintiff suffered from headaches, pain, and fatigue due to fibromyalgia throughout 2009 and 2010. R. 267-68. Dr. Munson also submitted an Attending Physician Statement to Prudential at the time Plaintiff submitted her ...


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