United States District Court, N.D. California
ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
action seeking long-term disability benefits pursuant to a
plan governed by the Employee Retirement Income Security Act
of 1974, both sides move for summary judgment. To the extent
stated below, defendants’ motion is
Granted, and plaintiff’s motion is
Ed Daie, a fifty-eight year old man, worked for defendant
Intel Corporation for twenty-seven years. He most recently
worked as the server memory and security technology director,
a sedentary but intellectually demanding position. Daie took
an unpaid leave of absence beginning in September 2012. He
participated in the Intel Corporation Long Term Disability
Plan, which was governed by the Employee Retirement Income
Security Act of 1974 (the “Plan”) and fully
funded by Intel (Plan Doc. at 1-40).
Plan generally paid sixty-five percent of a
participant’s monthly earnings if that participant
proved he had a qualifying “Disability, ” which
the Plan defined as “illness or injury that renders a
Participant incapable of performing work. Both the illness or
injury, and the inability to perform work, must be
substantiated by Objective Medical Findings” (Plan Doc.
Plan defined an “Objective Medical Finding” as
follows (Plan Doc. at 5-6):
A measurable, independently-observable abnormality which is
evidenced by one or more standard medical diagnostic
procedures including laboratory tests, physical examination
findings, X-rays, MRI’s, EEG’s, ECG’s,
“Catscans” or similar tests that support the
presence of a disability or indicate a functional limitation.
Not all tests or test results meet the criteria of Objective
Medical Findings. For example, tests that depend on
Participant self-reports, such as trigger point/tender point
tests, are not considered objective and do not establish
eligibility for benefits under this Plan. . . . Objective
Medial Findings do not include physicians’ opinions or
other third party opinions based on the acceptance of
subjective complaints (e.g., headache, fatigue,
pain, nausea), age, transportation, local labor market and
other non-medical factors. To be considered an abnormality,
the test result must be clearly recognizable as out of the
range of normal for a healthy population. The significance of
the abnormality must be understood and accepted by the
medical community as diagnostic of the specific disabling
condition asserted by the Participant.
Plan offered two periods of long-term disability benefits. In
the first eighteen months of a claimed disability, a
participant was entitled to benefits if his disability
prevented him from working at his “own
occupation.” Beginning in the nineteenth month, a
participant was entitled to benefits only if his disability
prevented him from working in “any occupation”
(Plan Doc. at 3).
Plan delegated discretionary authority for claims handling in
the first instance and first-level appeals to defendant The
Reed Group, Ltd., and it delegated responsibility for final
appeals to defendant Claim Appeal Fiduciary Services, Inc.
(Plan Doc. at 19, 38).
took a leave of absence from his position beginning in
September 2012. He told a consulting psychiatrist he was
going on a one-month leave of absence due to scheduled sinus
surgery, but he also stated he did not think he would return
to work because he felt he was “being gradually managed
out of his position as part of a restructuring of the
company” (AR at 806).
applied for short-term disability benefits through an
unrelated plan offered by Intel. Daie’s application for
short-term benefits won approval and terminated a year later
in September 2013 - the maximum period available under the
short-term plan. Unlike the long-term plan, Intel’s
short-term plan did not require members to provide objective
medical findings to support a claim.
applied for Social Security benefits and for benefits from a
private disability insurance policy from Metlife, Inc. Both
applications were granted (AR at 243, 1682, 1858).
then applied for long-term benefits under the Intel Plan. In
support of his claim, Daie submitted extensive medical
records from numerous physicians who have treated him for
eleven different conditions in three categories: upper
respiratory conditions (chronic acute sinusitis, allergic
rhinitis, severe asthma, and sleep apnea), psychiatric
conditions (major depressive disorder, episodic mood
disorder, and generalized anxiety disorder), and
musculoskeletal conditions (meralgia paresthetica, lumbar
spondylosis, and avascular necrosis) (AR at
Daie’s Medical Conditions.
Upper Respiratory Conditions.
Plan, Daie submitted evidence that he suffered from severe
asthma, allergic rhinitis, chronic acute sinusitis, and sleep
apnea, conditions that interfered with Daie’s breathing
and caused allergy-related symptoms. Numerous records
indicated that he had smoked cigars since 1980 and continued
to do so despite instructions from his physicians to stop (AR
at 1488, 1595-96, 1602).
results indicated that Daie had limited lung capacity and
that he underwent eight reconstructive sinus surgeries to
correct his conditions, but the treatment was not effective.
Daie took numerous medications, including the steroid
Prednisone, to treat his conditions, and he carried an
epi-pen in case of emergency. He informed one psychiatrist,
Dr. Robert Bright, that he had a number of life-threatening
asthma attacks (AR at 1193, 2379).
September 27, 2012, Daie underwent sinus surgery, performed
by Dr. John Raines. Prior to that surgery, his primary care
physician, Dr. Richard Settles, wrote an attending physician
statement in support of Daie’s claim for
short-term benefits, noting the scheduled surgery
and stating that Daie “will be unable to work at all
after 9/27/2012” (AR at 1733). Following the surgery,
Surgeon Raines released Daie to return to work on October 11,
2012 (AR at 1721-22). On November 14, however, Physician
Settles wrote an additional statement in support of
Daie’s application for benefits from Metlife listing
numerous conditions, and indicating “patient is unable
to work at all . . . patient has had all of these conditions
rapidly come on and is totally unable to work at this
time” (AR at 2165-66).
February 2013, after a sleep study, Dr. Phillip Lyng
diagnosed Daie with moderate “obstructive sleep apnea
and severe upper air way resistance” (AR at 1805).
Sleep-Study Physician Lyng instructed Daie to wear a
continuous positive air pressure (“CPAP”) machine
while he sleeps; however, Daie claimed he could not sleep
while using the CPAP machine, which he attributed to his
asthma and sinus problems (AR at 1194). Sleep-Study Physician
Lyng informed Daie that acclimation to the CPAP machine would
take some time and that he might need to go through several
different masks (AR at 1184). Daie visited a sleep center,
where he tried several different masks (AR at 2242-44). The
record does not indicate the status of Daie’s efforts
with various sleep apnea treatments.
provided records of psychiatric conditions, which he
attributed in part to side effects from his allergy
medications, particularly the Prednisone. Two psychiatric
emergencies required him to be admitted to the hospital in
2007. Daie’s psychiatrist, Dr. Leanne Kelley, diagnosed
him with a mood disorder and generalized anxiety disorder.
Psychiatrist Kelley stated that Daie “[s]hould not
engage in usual work activities - failure to perform
adequately would worsen his anxiety and depression. Poor
concentration, fatigue, mood swings limit all work functions.
Analytical skills are particularly impacted by depression,
anxiety, medication side effects.” Psychiatrist Kelley
made her diagnoses based only on “reported
symptoms.” She provided no response when asked whether
she had made any objective physical findings (AR at 1737-38).
also submitted records from his ear, nose, and throat
specialist, Dr. Stephen Graham who opined about Daie’s
cognitive conditions. In a statement written in March 2013,
ENT Physician Graham indicated that Daie suffered from
“inability to remain awake, think clearly, and speak
while on necessary medication, ” but estimated Daie
could return to work by June 2013 (AR at 1716). A later
statement, written in June 2013 indicated Daie was
“unable to work within his profession due to cognitive
issues” and described that disability as “likely
permanent” (AR at 1503). ENT Physician Graham did not
attribute any disability to Daie’s sinus
submitted records from Dr. Ibrahim Aksoy, including EMGs,
x-rays, and MRIs. The records indicated that Daie suffered
from several musculoskeletal conditions that caused severe
chronic pain throughout his lower back, thighs, and hip (AR
at 1201, 2403, 2495). In May 2012, at his only visit with
Pauline Lucas, a physical therapist, Daie stated that he
rated the pain a two out of ten during the visit, though he
said it reached an eight out of ten “at worst”
(AR at 2405). Musculoskeletal Physician Aksoy’s records
from a visit in April 2012 indicated that Daie reported a
range of intensity from “1 to 8 out of 10” and
that he reported “4/10 pain” which he described
as “an average day” (AR at 1556). The following
month, Musculoskeletal Physician Aksoy indicated that Daie
reported “pain ranging in intensity from 2 to 3 out of
Musculoskeletal Physician Aksoy’s recommendation, Daie
went to another physical therapist in November 2012, Susan
Meland, who wrote in a report that “his pain level on
[that] date [was] noted to be 4 out of 10. He note[d] at the
worst, in the last week is [sic] was 6 to 7 out of 10”
(AR at 814). Daie attended a total of seven physical therapy
sessions, but the sessions did not help (AR at 1564).
February 2013, Musculoskeletal Physician Aksoy noted that
Daie’s pain intensity “range[d] from 0 to 8 out
of 10” (ibid.). In March 2013, Daie received
an injection, which he later reported to Musculoskeletal
Physician Aksoy “resolved his back pain.”
Nevertheless, following the injection, Daie reported that his
overall pain intensity was “worse than before”
(AR at 816).
Defendants’ Evaluation of Daie’s Claims.
Initial Review and ...