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Orzechowski v. Boeing Company Non-Union Long-Term Disability Plan

United States District Court, C.D. California, Southern Division

March 12, 2014



CORMAC J. CARNEY, District Judge.


Plaintiff Talana Orzechowski worked at Defendant The Boeing Company ("Boeing") until February 27, 2009. She applied for long-term disability ("LTD") benefits under Boeing's employee benefits plan, and her claim was initially granted by the plan's insurer and claims administrator, Aetna Life Insurance Company ("Aetna"). She then received LTD benefits from July 29, 2009 to July 28, 2011. At the end of that period, however, Ms. Orzechowski's eligibility to receive further LTD benefits became subject to the plan's 24-month mental-nervous limitation and a different definition of disability. Aetna accordingly requested additional medical records and physician peer reviews to determine Ms. Orzechowski's eligibility to receive further benefits, and on July 25, 2011 terminated Ms. Orzechowski's LTD benefits under the mental-nervous limitation. Ms. Orzechowski submitted a timely administrative appeal, which Aetna denied.

Ms. Orzechowski brings this action under § 1132 of the Employee Retirement Income Security Act of 1974 ("ERISA"), 28 U.S.C. § 1001 et seq., challenging Aetna's decision to terminate her LTD benefits. After a bench trial on the administrative record, the Court finds that Aetna did not abuse its discretion in denying Ms. Orzechowski's claim for additional benefits.


A. Plan Documents

Ms. Orzechowski's lawsuit stems from Aetna's termination of her LTD benefits under a benefits plan that Boeing offers to its non-union employees (the "Plan").[1] The Plan provides that an employee is eligible to receive short-term disability benefits for a maximum period of 26 weeks. (SPD at 2-3.) If the employee continues to be disabled after 26 weeks, the employee may then receive LTD benefits. (SPD at 3-2.) Once the employee is no longer considered disabled, the employee's disability benefits end. ( Id. at 3-3.) During the first 24 months of LTD coverage, an employee is considered disabled if the employee is "not able to perform the material duties of [the employee's] own occupation. " (Certificate of Coverage at 2 (emphasis altered).) After this period, an employee is considered disabled if the employee is "not able to work at any reasonable occupation (this is any gainful activity for which [the employee is], or may reasonably become fitted by education training or experience)." ( Id. (emphasis altered).) The Plan also has a mental-nervous limitation on coverage, whereby "[a] period of disability will end after 24 months if it is determined that the disability is primarily caused by a Mental Health or Psychiatric condition, including physical manifestations of these conditions, but excluding those conditions with demonstrable, structural brain damage."[2] ( Id. at 3.)

B. Initial Claim for LTD Benefits

Ms. Orzechowski became disabled on January 28, 2009. (AR 1568.) After she received short-term disability benefits for 26 weeks, Aetna approved her claim for LTD benefits under the "own occupation" definition of disability, and benefits were paid to Ms. Orzechowski from July 29, 2009 through July 28, 2011. (AR 2186-88.) At the end of that period, the definition of disability changed from the "own occupation" to the "any occupation" definition. Accordingly, on August 10, 2010 - and again on October 8, 2010 and December 30, 2010 - Aetna sent Ms. Orzechowski letters notifying her of the upcoming change in definition and requesting documentation and medical records to assist Aetna in determining her eligibility to receive LTD benefits beginning July 29, 2011. (AR 1568-69, 1586, 1611.) On January 21, 2011, Aetna advised Ms. Orzechowski that it had not received any response to its three earlier requests for updated forms, and that her LTD claim might terminate if Aetna did not receive those forms within 30 days. (AR 1636.)

C. Medical Records Received by Aetna

In response to its latest request, Aetna received medical records prepared by several of Ms. Orzechowski's treating physicians over multiple years. These records show, as one physician put it, "a very complex past medical history." (AR 1756.) Many of the records were prepared by Ms. Orzechowski's primary treating physician, Neil F. Neimark, M.D., who has evaluated Ms. Orzechowski on nearly a monthly basis since January 2008. (AR 2166.) During these evaluations, Dr. Neimark frequently reported symptoms and behaviors that suggest Ms. Orzechowski had a disabling psychiatric condition. On June 12, 2009, for example, Dr. Neimark noted that Ms. Orzechowski "overloaded her brain circuitry" by attempting to edit a book and was still exhibiting broken language and staccato speech with reversal of words. (AR 2009.) He also noted that, during these episodes, she would "gently pound her legs, head and shoulders with closed fists rapidly for a few seconds or minutes." ( Id. )

On August 4, 2009, Dr. Neimark noted that Ms. Orzechowski was "still extremely oversensitive to analytical, emotional stress" and "c[ould] go from fine to autistic" in two minutes. (AR 2002.) She was "[s]till running depressed, sometimes OCD" and was better at ignoring suicidal thoughts. ( Id. ) Dr. Neimark also recorded a family member's report that analytical thinking, especially evaluating a paper for spelling or grammar, would trigger "a disoriented, floaty, woozy feeling in head that lasts seconds with autistic episodes, manic episodes and speech disorders." ( Id. ) Dr. Neimark recorded several physical symptoms, including profuse sweating, muscle and nerve pains, and lung weakness. ( Id. ) He also noted "[s]ome episodes of neither leg working for a few hours for a few days, " which he attributed to the effects of sedatives on muscle function. ( Id. ) On September 24, 2009, Dr. Neimark noted that Ms. Orzechowski had a "chatty, manic episode" and on October 21, 2009, he noted that she was in a "manic phase" with improved cognition and alertness. (AR 1990, 1994.)

On August 19, 2010, Dr. Neimark noted that Ms. Orzechowski had experienced a stress-induced autistic episode for 20 minutes with rocking and self-hitting, and that "emotional stress [was] going directly into her body" and had caused her skin to emit a "gangrene type smell" and had caused a gastric bleeding episode. (AR 1958.) At another appointment, on September 16, 2010, Dr. Neimark reported that Ms. Orzechowski "[s]till thinks it's November 2007." (AR 1954.) On October 28, 2010, Dr. Neimark noted that Ms. Orzechowski had a "middle ground psychiatric breakdown" with "full on" visual and auditory hallucinations. (AR 1994.) He noted that she talked five days non-stop and had some manic episodes. ( Id. )

In addition to these symptoms, Dr. Neimark reported a wide range of physical ailments, including fatigue, headaches, tiredness, extended periods of sleeping, asthma, decreasing muscle tone, nausea, and muscle and nerve pain. (AR 1954, 1966, 2002, 2006, 2288-89.) According to Ms. Orzechowski's medical history as stated in each of Dr. Neimark's reports, in 2004 she was diagnosed with fibromyalgia and chronic fatigue syndrome. (AR 2009.) The medical history also states that she had been diagnosed before with heavy metal poisoning, adrenal fatigue, hypothyroidism, and other conditions, some controlled and some not. (AR 2009-10.) In a January 5, 2011 attending physician statement, Dr. Neimark stated that Ms. Orzechowski was diagnosed with chronic fatigue syndrome and listed objective clinical findings of memory impairment, dermatitis, twitching, and wheezing. (AR 1708-09.) Dr. Neimark stated that Ms. Orzechowski's toxicity testing was "normal" and her labs remained "basically normal, " but that her symptoms continued to worsen. ( Id. )

Aetna reviewed medical records from other physicians as well. On October 23, 2009, Dan E. Silver, M.D., Neurologist, evaluated Ms. Orzechowski for "possible MS with a history of depression, difficulty with walking episodes, asthma, chronic fatigue syndrome, weakness, fatigue, and multiple other symptoms." (AR 1809.) Dr. Silver noted that there is no biomarker for fibromyalgia or for chronic fatigue syndrome. He reported that Ms. Orzechowski was "obviously incapacitated to work" and recommended that her care be "predominantly handled by the psychiatrist." (AR 1807.)

Scott Shoemaker, M.D., Neurologist, stated in a neurology consultation report dated October 27, 2009 that Ms. Orzechowski reported having "hundreds of neurological symptoms, " as well as memory dysfunction and cognitive deficits for which she was seeing a psychiatrist regularly. (AR 1756.) He noted that Ms. Orzechowski was accompanied by her cousin, who according to Ms. Orzechowski was acting as Ms. Orzechowski's caretaker and "babysitter." ( Id. ) During the consultation, Ms. Orzechowski reported frustration that physicians in the past had indicated to her that her symptoms may be due to psychiatric causes. ( Id. ) She stated that she had seen a lot of neurologists who didn't know what was wrong with her, most of whom refused to schedule follow-up appointments with her. (AR 1757.) She also reported having eight or nine psychiatric diagnoses, some of which are clinically inconsistent with the others. ( Id. ) She reported many symptoms, including problems with her limbs "clubbing up, " problems with "echolocation, " sometimes being able to speak only in nouns, walking in circles without knowing it, and writing backwards. ( Id. )

Dr. Shoemaker noted that it was difficult to ascribe all of Ms. Orzechowski's symptoms to a single neurological diagnosis, but that he did "believe that [Ms. Orzechowski] ha[d] developed psychiatric issues and... that those psychiatric issues [we]re playing a role in the symptomatology." (AR 1760.) Dr. Shoemaker also noted that electrodiagnostic studies did not seem to show any peripheral neuropathy, myopathy, or any other definite peripheral nerve entrapment or injury. ( Id. ) He performed EMG/NCS testing to look for any neurological conditions that would explain Ms. Orzechowski's symptoms and examination findings, but the test results did not "reveal any definite objective evidence for any peripheral nervous system lesion or any myopathy." (AR 1764.) Dr. Shoemaker stated that he had not been able to identify any neurological etiology for Ms. Orzechowski's symptoms. (AR 1810.)

Barry L. Aaronson, Ph.D., Psychologist, noted in a Behavioral Health Clinician Statement completed on November 18, 2009 that Ms. Orzechowski exhibited severe mood disorder and apparent neurological problems affecting walking, talking, motor skills, and comprehension. (AR 1496-97.) He noted that her behavior was bizarre and abnormal. (AR 1496.) Dr. Aaronson observed variation in her cognition and speech during his examination of her: Ms. Orzechowski started the session cognitively impaired with speech problems and ended it coherent and articulate. ( Id. ) Dr. Aaronson also stated that Ms. Orzechowski exhibited manic behavior with slurred speech, stammering, and grammar that breaks down, and has suicidal ideation with no intention or means. (AR 1496-97.)

Michael Monroe, Ph.D., Psychologist, also evaluated Ms. Orzechowski. He noted in his initial evaluation that Ms. Orzechowski's thoughts included delusions and paranoia. (AR 1974.) Dr. Monroe's Psychologist Progress Notes for sessions from January 2010 to May 2010 state that she has depression and anxiety. (AR 1863-74.)

D. Aetna's Review and Decision to Terminate Benefits

In addition to reviewing Ms. Orzechowski's medical records, Aetna requested peer reviews from board-certified physicians specializing in psychiatry and neurology - Mark Schroeder, M.D., Psychiatry, and Andrew Gordon, M.D., Neurology. (AR 2143, 2155.) In conducting the peer reviews, Dr. Schroeder and Dr. Gordon each reviewed the claim file and made several attempts to speak directly with Dr. Neimark, Dr. Monroe, and Dr. Aaronson. (AR 2149-50, 2158.) Dr. Schroeder received a voicemail message from Dr. Aaronson in which Dr. Aaronson stated that he was uncertain as to what degree psychological factors affected Ms. Orzechowski's physical symptoms, but that there was generally a "psychological overlay" in chronic-pain patients. (AR 2150.) None of Ms. Orzechowski's attending physicians returned Dr. Gordon's calls. (AR 2158.)

Dr. Schroeder stated in his review that the medical records described serious psychiatric findings throughout the time frame in question, including mood swings, depression, manic and hypomanic episodes, obsessive cleaning, self-harm, rocking behaviors, excessive sleep, suicidal thoughts, panic attacks, hallucinations, paranoia, tangential thought, lethargy, inappropriate jocularity, and pressured speech. (AR 2151.) Based on his review of the available medical records, Dr. Schroeder concluded that

th[e] clinical information adequately supported psychiatric impairment in ability to: complete tasks without interruption by psychiatric symptoms; perform normal daily activities independently; perceive reality; sustain attention and concentration or learn and process information; interact appropriately with others; use appropriate ...

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