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Armani v. Northwestern Mut. Life Ins. Co.

United States District Court, C.D. California

November 25, 2014

AVERY ARMANI, Plaintiff,

For Avery Armani, Plaintiff: Charles J Fleishman, Paul A Fleishman, LEAD ATTORNEYS, The Fleishman Law Firm, Woodland Hills, CA.

For Northwestern Mutual Life Insurance Company, a corporation, Defendant: Charles Kelechi Chineduh, Linda Marie Lawson, Meserve Mumper and Hughes LLP, Los Angeles, CA.


HONORABLE RONALD S.W. LEW, Senior United States District Judge.

On November 17, 2014, the above matter commenced in a bench trial before this Court. Having received, reviewed, and considered the evidence presented, as well as the Parties' arguments at trial, the Court makes the following ruling:


Plaintiff Avery Armani (" Plaintiff") began working for Renaissance Insurance Agency as a full-time controller on November 3, 2008 and continued working in that position until May 18, 2011. Admin. R. 591, 683, 685. As an employee of Renaissance, Plaintiff was insured under a group LTD policy sponsored by Renaissance and issued by Northwestern Mutual under group policy number L651293. Id. at 817. The relevant portions of the LTD Plan provide the following definitions of disability

The definition of Disability changes after LTD Benefits have been paid for 24 months.
1. Until LTD Benefits have been paid for 24 months, you are only required to be Disabled from your own occupation.
You are Disabled from your own occupation if, as a result of Sickness, Accidental Bodily Injury or Pregnancy, you are EITHER:
a. Unable to perform with reasonable continuity the material duties of your own occupation; OR
b. Unable to earn more than 80% of your Indexed Predisability Earnings while working in your own occupation.
Until LTD Benefits have been paid for 24 months, you will be considered Disabled while working in another occupation if you are Disabled from your own occupation. There is no limit on the amount you can earn from work in another occupation while you are Disabled from your own occupation. However, one-half the amount of your earnings will be Income From Other Sources used to reduce the amount of your LTD Benefit.
2. After LTD Benefits have been paid for 24 months, you must be Disabled from all occupations.
You are Disabled from all occupations if, as a result of Sickness, Accidental Bodily Injury or Pregnancy, you are EITHER:
a. Unable to perform with reasonable continuity the material duties of any gainful occupation for which you are reasonably fitted by education, training, and experience; OR
b. Unable to earn more than 80% of your Indexed Predisability Earnings while working in your own or any other occupation. (AR 836-837).
Mental Disorder: Payment of LTD Benefits is limited to 24 months for each period of Disability caused or contributed to by a Mental Disorder. However, if you are a resident patient in a Hospital at the end of the 24 months, this limitation will not apply while you are continuously confined.
Mental Disorder means: a mental, emotional or behavioral disorder.

Id. at 839. The LTD Plan has a 60-day waiting period. Id. at 839-840.

On January 6, 2011, Plaintiff suffered an injury during the course of his employment duties. Id. at 454. Plaintiff was treated for these injuries but largely remained at work through May 17, 2011. Id. at 205, 454-55. According to a January 26, 2011 " Doctor's First Report of Occupational Illness or Injury" completed by Dr. John Barone, a family practitioner with U.S. HealthWorks, Plaintiff reported: " I was moving my computer and compartments to another office, at the behest of my supervisor/employer. When I carried my extremely heavy battery backup power supply for my personal computer, I pulled my back." Id. at 576. Following examination on January 26, 2011, Dr. Barone provided diagnoses of sprain lumbar region, muscle spasms and sciatica, and placed Plaintiff on modified work duty for two weeks, limiting stooping, bending, kneeling, and squatting; limiting lifting, pulling, and pushing to twenty pounds or less; and requiring Plaintiff to wear back support. Id. at 576.

Plaintiff continued to be seen in follow-up at U.S. HealthWorks, and during a February 11, 2011 visit, Dr. Meredith Henshel, a family practitioner, noted that Plaintiff's lumbar strain was " resolving." Id. at 557. On February 17, 2011, Cheryll Handy, a physician assistant, noted that Plaintiff's lumbar strain was " resolved" and he was released to return to full-time work with no limitations or restrictions, and that he was released from care without ratable disability or need for future medical care. Id. at 551-52. Plaintiff returned to the clinic on February 23, 2011, complaining of increased pain. Id. at 546. On exam on February 23, 2011, Handy noted decreased range of motion and low back pain, but that Plaintiff should continue to work without restrictions. Id.

Plaintiff had three additional follow-up sessions at U.S. HealthWorks in March 2011, and each time, his treating physicians allowed Plaintiff to continue to work without restrictions. Id. at 528-543. Thereafter, Plaintiff began to see Dr. Brian Padveen, a chiropractor with BKP Chiropractic & Rehabilitation (" BKP Chiropractic"), who provided diagnoses of " L/S sprain/strain R/O HNP" and " bilateral lower extremity radiculitis R/O radiculopathy." Id. at 489. Dr. Padveen restricted Plaintiff to modified work effective April 13, 2011 with the following restrictions: " no lifting over 25 lbs; no prolonged sitting continuously w/o ability to change position & stand at will." Id. On April 19, 2011, Plaintiff had an MRI, revealing " minor disc desiccation" and left greater than right neural foraminal narrowing at L4-L5, as well as a disc bulge and annular tear at L5-S1. Id. at 498-99.

On May 18, 2011, Plaintiff stopped working as a result of his back pain. Id. at 205. That day, Plaintiff saw Dr. Padveen, who determined that Plaintiff was unable to work at that time and should be re-evaluated on June 22, 2011. Id. at 465. A May 20, 2011 EMG showed evidence of left S1 radiculopathy, but " [n]o evidence of peripheral neuropathy was noted at any level in the bilateral lower extremities." (AR 490-497). On June 22, 2011, Plaintiff was seen by another chiropractor, who determined that Plaintiff was unable to work and should be reevaluted at a later date. Id. at 433.

On July 6, 2011, Plaintiff saw an orthopedist, Dr. Kasimian, who recorded Plaintiff's account of lower back pain at a level 8/10. Id. at 456. Dr. Kasimian noted stiffness and swelling, as well as a limited range of motion and paraspinal muscle spasms. Id. at 457-58. Dr. Kasimian diagnosed degenerative changes at L5-S1, disc herniation, and an annular tear indicating acute injury. Id. at 459. Dr. Kasimian recommended epidural steroid injections on the left at L5-S1, and indicated that if the injections failed, Plaintiff might required an L5-S1 decompression surgery on the left side. Id. at 460.

On July 8, Plaintiff was examined by Dr. Philip Kanter, the Workers' Compensation orthopedic medical examiner. Id. at 447. Dr. Kanter noted that " this patient's lumbrosacral spine condition has not yet reached a level of maximum medical improvement. The patient desires further treatment, which is felt reasonable based upon his current level of symptomatology, physical examination, and positive MRI study." Id. at 449. Dr. Kanter opined that " this patient would benefit from further physical therapy and/or acupuncture three times a week for an additional six weeks." Id. at 449. He noted that if pain did not improve, " a pain management consultation, with consideration towards epidural steroid injections" should be considered. Id. at 449. If the pain did not improve substantially, Dr. Kanter opined that " consideration for surgical intervention" could be given at that time. Id. at 449. Dr. Kanter described Plaintiff as " temporarily totally disabled from his job duties." Id. at 450.

On July 11, 2011, Plaintiff spoke with a Northwestern Mutual Representative on the phone regarding Plaintiff's authorization to release his medical records to Northwestern Mutual. The Northwestern Mutual representative advised Plaintiff that he could submit his claim without authorization, but that if Northwestern needed some information it was unable to obtain without an authorization, it would be unable to properly manage his claim, possibly leading to delay or an adverse decision. Id. at 682.

On July 15, 2011, Plaintiff completed a Group Disability Claim Employee Statement wherein he reported that his work-related injury prevented him " from sitting, standing, walking, driving, and concentrating for prolonged periods of time without experiencing a lot of pain & /or difficulty." Id. at 685. In that Employee Statement, Plaintiff attached a copy of his resume indicating that his education and experience include: an MBA from Pepperdine University; a certificate in " Global Enterprise Management" from Oxford University; and a certificate in Dispute Resolution from the Strauss Institute of Dispute Resolution at Pepperdine Univesity School of Law. Id.

Also on July 15, 2011, but in a separate letter, Plaintiff wrote the following:

I, Avery Iliad Armani, have been informed by my attorney, Robert A Katz, Esq., that I am not obligated to provide your company authorization to obtain my entire medical record without restriction. As a result, I am not enclosing the " Authorization" form with my " Group Disability Claim -- Employee Statement" form.

Id. at 687. Plaintiff further stated that " [t]here are only two treating medical facilities that I have been under the care of with respect to the aforementioned injury and this resulting disability claim, which are: Dr. Brian K. Padveen . . . and U.S. HealthWorks Medical Group." Id. at 687. He concluded: " I will grant your company full access only to these medical records from these two specific treating medical facilities, which is specific to this claim." Id. at 687.

On July 25, 2011, Northwestern Mutual received a job description that described Plaintiff's occupation as: " senior employee in the Company's Financial Department. Id. at 729. This position has direct responsibility and accountability for the following broad categories: all corporate accounting, banking, cash management, budgeting, accounts payable and receivable and all financial transactions involving related entities." Id. at 729. The " working conditions" were described as: " sedentary the majority of the time in a quiet office environment. Limited to no travel. Manual dexterity required to type and enter data into a computer system." Id. at 731. Plaintiff indicated that his job requires him to sit for approximately seven hours per day and stand or walk for one hour per day. Id. at 729.

On July 25, 2011, Northwestern Mutual received an Attending Physician Statement signed by Dr. Arash Alipourfereshteh, a chiropractor with BKP, dated July 19, 2011, wherein he provided a diagnosis of L4-S1 lumbar disc herniation with annular tear L5/S1. Id. at 481. Dr. Alipourfereshteh listed Plaintiff's " physical limitations" as: " no lifting [greater than] 10 lbs, no repetitive bending, stooping, lifting, twisting, squatting; Allow to sit and stand as needed" and indicated that in a work day (given two breaks and a meal break), Plaintiff could lift/carry between 1-10 pounds, sit for 4 hours, stand 2 hours, walk 2 hours; use both hands for repetitive simple grasping, pushing/pulling, fine manipulation, typing; and occasionally (up to 33% of the time) bend, lift, and carry. Id. at 481. Dr. Alipourfereshteh also noted that Plaintiff's " prognosis is guarded" and that he was was " pending orthopedic surgical evaluation by Dr. Kasimian." Id. at 482.

In August of 2011, Northwestern Mutual assigned physician consultant Dr. John Hart to review the medical records Plaintiff submitted from U.S. HealthWorks and Dr. Padveen. Id. at 466. Dr. Hart opined that the medical records " support the diagnosis of lumbar strain and a possible S1 radiculopathy on the left." Id. at 468. Dr. Hart noted that based upon the restrictions provided by Plaintiff's chiropractor, Dr. Padveen, as well as the opinions of his occupational physicians at U.S. HealthWorks, that " the chiropractor's recommendations are appropriate" and that they would be consistent with Plaintiff being able " to return to his occupation without restrictions." Id. at 468. Nonetheless, Dr. Hart added that since there had " been two referrals for orthopedic surgery evaluation, " although those referrals were not included in the records Plaintiff had sent, Dr. Hart " would recommend following up with the orthopedic evaluation." Id. at 468. The finding regarding limiting lifting to 25 pounds is different from the finding made by Dr. Alipourfereshteh recommending Plaintiff limit his lifting to 10 lbs.

A July 28, 2011 own occupation review by Northwestern Mutual vocational case manager Linda Knickrehm, M.S., CRC, confirmed that Plaintiff's occupation of Controller is sedentary. Id. at 721-722. That review noted that Plaintiff might " occasionally" need to exert force to 10 pounds, or " frequently" exert a negligible amount of force to lift, carry, and push. Id. at 722. On August 25, 2011, Cynthia Griffen, a registered nurse employed by Northwestern Mutual, reviewed Plaintiff's updated records and reported: " [t]he claimant has complained of progressively worsening pain since his 1-6-11 injury. He reports back (L) leg pain & has difficulty sitting or standing [greater than] 15-20 min. He has undergone PT, chiropractic, acupuncture & plan of treatment currently is epidural steroid injections w/possible surgery. Reasonable to accept L/Rs [limitations and restrictions] preventing all work from cease work & currently ongoing." Id. at 453.

On August 26, 2011, Ms. Knickrehm performed another vocational review in order " to determine whether the claimant's own occupation would allow him to change position as needed per the medical review." Id. at 717. The reviewer opined:

This occupation would primarily be performed using a computer or calculator, preparing reports, performing accounting tasks, and directing financial affairs of the employer. The majority of these activities would be performed from a seated position with occasional intermittent activities that would allow him to stand or walk for short periods. Generally, it is my opinion that this occupation would not allow for change of position as needed for comfort, based upon the type of material duties involved in the occupation. It is also thought, however, that this position could easily be accommodated by the use of a sit/stand workstation that would allow the claimant to change position from sitting to standing as often as needed for comfort. Sit/stand stations are commonly available and used in the workplace in all types of employment settings.

Id. at 717. On August 30, 2011, Northwestern Mutual informed Plaintiff that under the " own occupation" test for disability, it was approving his claim effective July 18, 2011. Id. at 668-670. It advised Plaintiff that after 24 months, benefits may remain payable provided that limitations and restrictions prevent him from performing " any reasonable occupation, given your education, training and experience and your limitations and restrictions. This is known as the Any Occupation period of disability." Id. at 668.

On September 14, 2011, Plaintiff again saw Dr. Alipourfereshteh, who made no diagnostic notes, but indicated that Plaintiff was unable to work and should be reevaluated on October 19, 2011. Id. at 431. On September 29, 2011, Plaintiff saw a pain specialist named Dr. Miller. Id. at 386. While the results of all piriformis tests, all sacroiliac tests, and the sciatic notch tenderness test were negative, the Lasegue's Sign test, Bowstring Sign test, and Straight Leg Raise test were positive on the left. Id. at 386. Dr. Miller noted " increased pain with lumbar extension and abnormal lumbar pelvic rhythm" and " [h]ypothesia in the left L5-S1 dermatoma." Id. at 387. Dr. Miller reported slightly lower-than-expected ankle reflex in the left ankle. Id. at 387. Dr. Miller opined that Plaintiff had " active left S1 radiculopathy with L5-S1 annular disc disruption." Id. at 388. He recommended a left L5-S1 selective transforaminal epidural steroid injection. Id.

On October 29, 2011, Plaintiff was again examined by Dr. Padveen, who wrote a report reevaluating Plaintiff's lumbar spine injury, depression, and anxiety, and adding patient's sleep disturbance and sexual dysfunction. Id. at 408. He noted that Plaintiff was " currently temporarily totally disabled" until his next visit on November 23, 2011. Id. at 409, 411. Dr. Padveen referred Plaintiff for: a psychiatric consultation for the administration of psychotropic medications; follow-up pain management and evaluation of sleep with Dr. Miller; continued acupuncture treatment two times per week for three weeks. Id. at 411. Dr. Padveen recommended Plaintiff continue communicating to him about his sexual dysfunction. Id. at 411.

On November 23, 2011, Plaintiff again saw Dr. Alipourfereshteh, who indicated that Plaintiff was unable to work and should be reevaluated on January 3, 2012. Id. at 429. On January 3, Plaintiff again saw Dr. Alipourfereshteh, who indicated that Plaintiff was unable to work and should be reevaluated on January February 15, 2012. Id. at 428. On January 16, 2012, another chiropractor affiliated with BKP Chiropractic, Dr. Wool-Smith, filled out a medical questionnaire indicating that Plaintiff's sitting was limited to four hours per day, standing and walking was limited to two hours each per day, and that Plaintiff could lift, carry, and push between one and ten pounds occasionally. Id. at 424. Dr. Wool-Smith indicated she believed Plaintiff's condition would improve over the following six months and that he would be able to return to work on July 6, 2012. Id.

On March 30, 2012, Defendant's reviewing physician, Dr. Hart, wrote a report based on the medical records Plaintiff had submitted to Defendant. Id. at 392. In it, Dr. Hart noted discrepancies between the Agreed Medical Exam done by Dr. Kanter regarding a leg angle test. Id. Dr. Hart noted that Plaintiff had consistently rejected epidural injections and opined that " individuals who do not have epidurals are usually doing satisfactory enough" and indicated " the claimant is capable of sitting" in a sedentary job. Id. at 392. He stated that he believed Plaintiff would have been able to return to work as of the date of the AME. Id. at 392.

Also on March 30, 2012, Plaintiff visited his pain management specialist, Dr. Miller, and reported that his pain was increasing and that he planned to proceed with epidural injections. Id. at 378-80. Plaintiff indicated that he was hoping to avoid surgery. Id. at 380.

In May of 2012, Plaintiff filed for Social Security Disability Insurance Benefits, which he was denied. 770. The Social Security Administration indicated that based on its assessment, Plaintiff's condition was " not severe enough to keep [him] from working" and that he could " adjust to other work." Id. at 770.

Plaintiff saw Dr. Miller again on September 14, 2012. Id. at 261. Dr. Miller again reported positive straight leg raise results and a loss of sensation. Dr. Miller indicated that Plaintiff was " pending authorization" for epidural steroid injection, which " was previously authorized and never scheduled." Id. at 261

Plaintiff saw Dr. Kanter again on November 11, 2012. Id. at 296-97. Dr. Kanter found that Plaintiff was " temporarily totally disabled from his job duties" and that Patient's " lumbrosacral spine condition has not yet reached a level of maximum medical improvement." Id. Dr. Kanter recommended further physical therapy and acupuncture for another six weeks, as well as a pain management consultation and epidural steroid injections. Id. at 297.

Plaintiff saw Dr. Miller again on December 13, 2012. Id. at 261. Dr. Miller reported that Plaintiff was still pending extension of the epidural that was authorized and never scheduled and that Plaintiff had decreased his medication. Id.

Plaintiff saw Dr. Padveen on February 22, 2013. Id. at 277. Dr. Padveen indicated that Plaintiff could sit for four hours, stand for two hours, and walk for two hours per day, as well as " occasionally" lift, carry, push or pull up to ten pounds. Id. at 277. Dr. Padveen indicated that he expected Plaintiff to be able to return to work on May 1, 2013. Id. at 278. Plaintiff again saw Dr. Padveen on April 15, 2013, at which time Dr. Padveen again indicated Plaintiff could sit for between two and four hours per day. Id. at 239.

On April 18, 2013, Dr. Hart performed a review of the additional medical records from Plaintiff's continued treatment. Id. at 242. Dr. Hart questioned the finding of radicular pain, noting that in his experience, Plaintiff's pain was more likely pain radiation of soft tissue origin. Id. Dr. Hart also noted that while the physicians used the term " straight leg raising, " " their descriptions are not consistent with the expected pain distributions that would accompany the lower disc levels as noted on the MRI." Id. Accordingly, Dr. Hart opined that " the diagnosis supported is lumbar strain/primarily axial low back pain." Id. Dr. Hart indicated that he expected the complaints to be ongoing because Plaintiff had declined epidural steroid injections, but that Plaintiff was capable of sedentary-level work " without limitations or restrictions." Id.

Using the report Dr. Hart prepared on April 18, 2013, Defendant's vocational case manager assessed claimant's " ability to perform any occupation given documented functional capacity, work history, education, training, experience, transferable skills and labor market analysis." Id. at 693. The vocational case manager identified three positions (Manager, Financial Planning and Analysis; Risk and Insurance Manager; and Manager, Credit and Collections) in addition to Plaintiff's own position that she deemed Plaintiff could perform at or near his pre-disability income level. Id. She noted that these were sedentary positions, meaning " sitting most of the time, " per the Dictionary of Occupational Titles published by the United States Department of Labor, Employment, and Training Administration. Id. at 700-703. She based her determination of his " functional capacity" on Dr. Hart's Physician Consultant memorandum. Id.

In letters dated August 30, 2011, id. at 668-70, November 16, 2012, id. at 643-45, and January 1, 2013, id. at 629, Defendant notified Plaintiff that it would proceed to use the " any occupation" definition of disability to evaluate his claim if it continued after twenty-four months.

In a letter dated July 9, 2013, Defendant informed Plaintiff that his LTD claim was being closed effective that date, as the medical information in his file did not support that he was disabled under the " own occupation" or " any occupation" test. Id. at 615-621. In a letter dated July 15, 2013, Plaintiff, through counsel, informed Defendant that he wished to appeal its determination. Id. at 607-608. In continued communications, Plaintiff, through his attorney, questioned the findings of Dr. Hart and requested review by a second doctor. Id. at 603. Defendant assigned another physician consultant, Dr. Hans Carlson, to review Plaintiff's medical records. Id. at 207. Dr. Carlson opined, in part:

These records do not support that the claimant would be precluded from sedentary-level work. It would be reasonable that the claimant would have the ability to reposition from sitting to standing occasionally as needed. Further limitations and restrictions would be appropriate for no constant bending, twisting, squatting, kneeling, or crouching.

Id. at 207. After completing its review of its determination, Defendant informed Plaintiff it was upholding its claim decision. Id. at 591-98.


The Employee Retirement Income Security Act (" ERISA"), 29 U.S.C. § 1132(a)(1)(B), authorizes a beneficiary to 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." Plaintiff's long-term disability plan does not confer discretion on Northwestern as the claims administrator to determine eligibility for benefits or to construe terms of the Plan. See Admin. R. 824-39. When a plan does not confer this discretion, a court must review the denial of benefits de novo; the court " simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits." Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006). A claimant has the burden of proving, by a preponderance of the evidence, that he or she is disabled under the terms of the plan. See Muniz v. Amec Const. Mgmt., Inc., 623 F.3d 1290, 1294-95 (9th Cir. 2010); O'Neal v. Life Ins. Co. of N. Am., 10 F.Supp.3d 1132, 2014 WL 1309115 (D. Mont. 2014).

In a trial on the record, the court " can evaluate the persuasiveness of conflicting testimony and decide which is more likely true." Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999). Opinions from treating physicians are not automatically given greater weight. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003) (" Plan administrators, of course, may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician. But, we hold, courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation.")

The dispute here is (a) whether Plaintiff was disabled from his own occupation under the terms of the plan for the first twenty-four months of his claim, and (b) whether Plaintiff was disabled from all occupations under the terms of the plan for the period after his first twenty-four months of benefits. Regarding the first question, disability from Plaintiff's own occupation, the Court considers the terms of the plan, the findings regarding the nature of Plaintiff's occupation, and the medical evidence from Plaintiff's treating physicians as well as the reports from Defendant's reviewing physicians to determine whether he was disabled from his own occupation.

The plan provides, in relevant part, that Plaintiff is disabled from his own occupation if he is " unable to perform with reasonable continuity the material duties of [his] own occupation." Admin. R. 839. While Defendant has raised understandable questions about the whether Plaintiff's injury truly disabled him, the Court finds, given Defendant's initial acceptance of Plaintiff's claim that he was disabled from his own occupation, that there was no change in circumstances sufficient to warrant denying Plaintiff the nine days of benefits at the end of the " own occupation" period. Plaintiff's benefits began July 18, 2011. Id. at 668-670. Plaintiff's benefits were terminated effective July 9, 2013. Id. at 615-21. Out of consideration for fairness, the Court awards plaintiff benefits for the nine days at the end of the " own occupation" period of July 9, 2013, through July 17, 2013.

In order to obtain benefits from July 18, 2013 onward, however, Plaintiff must show by a preponderance of the evidence that he was disabled from all occupations. The Administrative Record contains scant information regarding Plaintiff's condition during this period. Defendant addressed this issue in its letter to Plaintiff explaining the termination of his benefits and that it found him eligible for other occupations. Id. at 596.

Plaintiff has argued that he is unable to perform any occupation classified as " sedentary, " because, by definition, " sedentary" requires an ability to sit for six hours, and Plaintiff is unable to sit for more than four hours. See Pl.'s Trial Brief 10:9-11 (citing Carter v. Barnhart, 58 Fed.Appx. 304, 306 (9th Cir. 2003); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001)). The cases Plaintiff cites are Social Security Cases, not ERISA cases, and given the vast differences in both form and function between Social Security law and ERISA law, the federal criteria for Social Security claims are not transferable to ERISA cases. See Nord, 538 U.S. at 832-33 (" In determining entitlement to Social Security benefits, the adjudicator measures the claimant's condition against a uniform set of federal criteria. The validity of a claim to benefits under an ERA plan, on the other hand, is likely to turn, in large part, on the interpretation of terms in the plan at issue . . . ERISA is best served by preserving the greatest flexibility possible for operating claims processing systems consistent with the prudent administration of a plan.") (internal punctuation omitted). Accordingly, Defendant is not bound to abide by Plaintiff's proposed definition of sedentary work, but must abide by the terms of the plan.

Plaintiff does not show how he is disabled from " any occupation" for which he is qualified. For example, Defendant offered three positions for which it found Plaintiff qualified and able to perform. Plaintiff has not offered any concrete evidence of how he his disability prevents him from performing these occupations. A review by one of Defendant's agents found that Plaintiff could also perform his own occupation with simple sit/stand workstation accommodations that are widely available in workplaces. Admin. R. at 717. Plaintiff's argument rests on a definition of " sedentary" that is not supported by the rules governing his benefits. Accordingly, the Court is not persuaded that his evidence is sufficient to show that he is disabled from any occupations.

The record contains little information from Plaintiff about his continuing medical condition after his April 15, 2013 chiropractic appointment. Defendant noted the lack of information regarding Plaintiff's continuing condition in its September 11, 2013 letter denying Plaintiff's appeal. Admin. R. 591. Accordingly, Plaintiff moved for the admission of more recent medical reports at trial. The Court determines that these documents are inadmissible under the standards established in Opeta v. Nw. Airlines Pension Plan for Contract Employees, 484 F.3d 1211, 1217 (9th Cir. 2007), and Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1025 (4th Cir.1993)(en banc), as they do not fit within the narrow exceptions carved out and are not necessary to adequately conduct this review. Exhibit 1 is expository material regarding the difference between radiculopathy and neuropathy, which the Court does not need require to make an informed decision. Exhibit 2 is an agreed medical reexamination that documents a new complaint, a shoulder injury, and continued back pain, but does not establish Plaintiff's continued disability. Exhibit 3 is inadmissible based on the fact that it was available during the construction of the administrative record, and therefore could have been submitted at that time. Exhibit 4 contains the results of an MRI, but no explanation of the significance of these results and therefore is not necessary for the Court to make its decision. Further, the Court notes that it would be unfair to Defendants for the Court to consider these documents as part of the Administrative Record without Defendants ever having the opportunity to determine their relevance for Plaintiff's claim.


As a result of the insufficiency of the Administrative Record regarding Plaintiff's alleged disability from any occupation, the Court finds that Plaintiff has not met his burden to show, by a preponderance of the evidence, that he was disabled from all occupations; accordingly, Plaintiff is not entitled to disability benefits for the " all occupations" period. As discussed above, the Court awards Plaintiff damages of nine days of benefits for the end of the " own occupation" period.



On November 17, 2014, the above matter commenced in a bench trial before this Court. After consideration of all evidence presented, IT IS ORDERED AND ADJUDGED that Plaintiff is awarded nine days of benefits for the period of July 9, 2013 to July 17, 2013. The Court finds that Plaintiff has not shown by a preponderance of the evidence that he is entitled to relief based on disability from any occupation. Accordingly, the Court awards judgment to Defendant on that issue.


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