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Hart v. Unum Life Insurance Co. of America

United States District Court, N.D. California

May 24, 2017

NANCY HART, Plaintiff,



         Presently before the Court is Plaintiff Nancy Hart's (“Hart”) Employment Retirement Income Security Act (“ERISA”) action concerning the termination of her long term disability (“LTD”) benefits, pursuant to 29 U.S.C. § 1132(a)(1)(B). See ECF No. 1 (“Compl.”). Hart seeks to recover disability benefits allegedly owed to her under the terms of her disability plan from June 14, 2012 through the present date, together with pre-judgment interest on each payment. Compl. ¶ 26. Hart has filed a motion for judgment, ECF No. 57 (“Hart Mot.”), and Unum has filed a cross motion for judgment (“Unum Mot.”). Both Parties timely opposed the other's motion. ECF Nos. 59 (“Unum Opp'n.”), 60 (“Hart Opp'n.”). The Court heard oral arguments on the Parties' motions for judgment on May 8, 2017. After carefully considering the administrative record (“AR”), see ECF No. 56, the Parties' written and oral arguments, and the relevant case law, the Court GRANTS Hart's motion for judgment and DENIES Defendant's cross motion for judgment.


         a. Hart's Employment and Educational Background

         Hart attended Cal State Sacramento and received a BS in Nursing in 1989 and an MS in Nursing in 1990. AR 368, 4043. She has approximately twenty-five years' experience working as a licensed registered nurse in California. AR 4043. Hart worked as a Registered Nurse from 1980 to 1989. AR 2464. Starting some time in 1990, Hart began working full-time as a nurse supervisor/manager. Id. In 1998, Hart was employed by Catholic Healthcare West as a Regional Manager, Case Management. AR 60, 2462. Hart reported that she managed the Hospitalist Program, directed and supervised over twenty-five employees, determined the length of stays for a 265-bed hospital and controlled budgets and finances, which included planning and forecasting. AR 45, 95. Hart remained in this position until the time she discontinued full-time work on June 30, 2004, before applying for LTD benefits. AR 45-47.

         b. Hart's Accident and Initial Medical Treatment

         Hart's back problems began on April 7, 1985. AR 4043. While flying back from a vacation, Hart volunteered to administer Cardiopulmonary Resuscitation (“CPR”) on a fellow passenger who was experiencing a life-threatening emergency. AR 1586, 4043. In lifting the male passenger from his airplane seat to lay him down to perform CPR, Hart injured her back. AR 4044. As a result of the injury, Hart was off work for three weeks; her back pain gradually increased over time and never went away. AR 1586, 4044. Despite her injury, however, Hart was able to continue working as a nurse by managing her back pain symptoms with physical therapy, epidural steroid injections (“ESI”) and pain medications. AR 4044. Around the time Hart transitioned to an administrative role in 1990, Hart began relying on Dr. Denyse Nishio, M.D., a Board Certified Internist, to help manage her symptoms. AR 4044, 4291. From 1990 to September 2001, Hart continued to manage her back pain through a regimen that included visits to a chiropractor, massage therapist, and prescription analgesics for severe pain flare ups. AR 4044.

         In September 2001, Hart lost her balance doing home chores and hyperextended her back. AR 4045. Dr. Nishio sent Hart to obtain Magnetic Resonance Imaging (“MRI”) on her back. AR 1581, 4045. Hart obtained the MRI on her back on October 14, 2001. AR 142. Upon reviewing Hart's MRI images, Dr. Arthur Dublin, M.D., reported the following impressions:

1. Mild broad-based disc bulges with left parasagittal component at ¶ 4-L5 and L5-S1 with tear of the annulus fibrosus at ¶ 4-L5. No significant neural foraminal or spinal canal narrowing.
2. Vertebral body hemangiomas at ¶ 1 and L2.

AR 142-43. By November 2001, Hart's symptoms became so severe she could not tolerate sitting for more than twenty-five minutes, and standing for more than a few minutes caused her “excruciating” pain. AR 4045. In light of these restrictions, Hart took medical leave from work, and Dr. Nishio referred Hart to Dr. Gagan Mahajan, M.D., a Pain Medicine and Rehabilitation Doctor. AR 4045. In early 2002, Dr. Mahajan's pain clinic administered three ESI's on Hart's back: one in January, one in February, and one in April. AR 295. On June 5, 2002, Dr. Mahajan conducted a follow-up evaluation of Hart. AR 294. Hart reported intermittent (50% of the time) pain described as “sharp, dull aching, and throbbing.” She also reported to Dr. Mahajan that she had received excellent benefits from this series of ESIs, AR 296, 4045; and that her range of motion had improved, AR 4045. Dr. Mahajan recommended Hart undergo further ESIs on her back while increasing the intervals between the injections. AR 296. At the same time, he reminded Hart that ESIs were not meant to be lifelong treatments and would not change the anatomy of her back. AR 296. Also, during this visit, Dr. Mahajan reviewed the MRI images and concluded Hart had lumbar disk degenerative disk disease with an annular tear at ¶ 4-5 and Spina Bifida Occulta at ¶ 1. AR 296.

         In 2002, Hart returned to work full time as a Regional Manager for Catholic Healthcare West. AR 4045. But her pain hindered her from dealing with the demands of her job. For the next two years Hart would use pain medications, wear a back brace, sit in a “zero-gravity” chair that would relieve pressure from her spine and pelvis, use a transcutaneous electrical nerve stimulation (“TENS”) unit, and sleep on a special mattress to manage her pain. AR 4045-46. By June 2004, Hart decided her pain was too much and completely stopped working. AR 4046.

         On September 17, 2004, Hart underwent a second MRI study on her back. AR 144. Dr. James Brunberg, M.D., reported the following “impressions” from Hart's MRI:

1. At the L4-5 disk space levels there are small midline annular tears as further described above. There is not significant distortion of the thecal sac or of originating root sleeves.
2. At the L5-S1 level, there is degenerative disk alteration with decreased disk space height and decreased disk T2 signal intensity. There is no disk herniation.
3. There is mild facet degenerative alteration at mid and lower lumbar levels.

AR 144-45. On November 11, 2004, Hart was evaluated by Dr. James Zucherman, M.D. AR 481-83. Upon physically examining Hart and comparing her 2001 and 2004 MRIs, Dr. Zucherman concluded:

Ms. Hart has multilevel degenerated discs. Most of the pain, by vibration, seems to be around the L4-5 level, or L5-S1. Since there are small abnormalities at all the lumbar discs, we would have to localize and isolate the pain generator to consider her a reasonable surgical candidate. This will require discography, which is appropriate in light of her level of misery. The patient will contact us when she wishes us to set up the discogram.

AR 481. Dr. Zucherman also noted Hart rated her pain at “7 most of the time” on a 10-point scale. AR 482. Hart never pursued or obtained a discogram. On October 28, 2004, Ms. Hart filed a claim to Unum seeking disability benefits for a June 30, 2004 date of disability. AR 45.

         c. Hart's Policy Terms and Disability Claim

         On January 1, 2002, Hart's Long Term Disability (“LTD”) policy with Unum became effective. AR 2. To be eligible for benefits under Hart's policy, a person must be “disabled” which is defined in the policy as follows:

You are disabled when UNUM determines that:
-You are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury; and -you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury.
After 24 months of payments, you are disabled when Unum determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.

         AR 1311. “Gainful occupation” is defined in Hart's policy as “an occupation that is or can be expected to provide [her] with an income at least equal to 60% of [her] indexed monthly earnings within 12 months of your return to work.” AR 3432. At the time Hart's benefits were terminated, the policy definition for the latter “any occupation” provision changed to the following:

You will be determined to be disabled from another occupation when you are rendered unable to engage with reasonable continuity in another occupation in which you could reasonably be expected to perform satisfactorily in light of your age, education, training, experience, station in life, physical and mental capacity.

         AR 2000. In order to be eligible for LTD benefits, a covered person must be disabled for an “elimination period” of 180 days. AR 3410. Hart satisfied the elimination period on December 27, 2004, AR 2355, and on December 27, 2006, the definition of disability changed from “regular occupation” definition to the “any occupation” definition. AR 3373. Under Hart's policy, persons who become disabled younger than age sixty may collect benefits up until age sixty-five.[1]

         d. UNUM's Initial Approval of Long Term Disability Benefits

         In Hart's initial LTD claim submitted to Unum on October 28, 2004, she stated she suffered from a “[l]ong progressive history of chronic back pain due to bulging disc at ¶ 4-L5, L5-S1 and disc degenerative disease.” AR 45. Hart also claimed she “collapsed in unrelieved, unrelenting back pain after work day of 6/29/04. Unable to get out of bed next day.” AR 45. Dr. Nishio, completed an Attending Physician's Statement (“APS”) in which she claimed Hart had the following restrictions: “Must lie down, traction x 30 [illegible], no bend, stoop, twist, lift >10 [pounds]”. AR 50. Dr. Nishio also stated the following limitations: “unable to perform simple household chores[, ] difficulty & ADLs[, ] cannot sit stand >30[, ] cannot reach, twist [, ] any sustained activity exac[erbates] pain.” AR 50.

         On March 8, 2005, Ms. Tina Sheek, a registered nurse of Unum, performed a medical review and opined that the restrictions and limitations provided by Dr. Nishio “are supported from [the date of disability] through 02/05 to stabilize her exacerbated symptoms.” AR 242-43. Unum approved Hart's LTD claim on March 10, 2005, and provided backdated payments through December 27, 2004. AR 257.

         e. Hart's Continuing Medical Treatment and Unum's Ongoing Verifications of Disability

         From 2004-2011, UNUM paid Hart LTD benefits while relying on supporting documents from Hart's doctors.

         On March 10, 2005, Unum sought continuing verification of Hart's disability. Dr. Nishio reported Hart had back pain and was not able to twist/bend/lift. AR 320. Nishio also reported that Hart was using analgesics, a corset, and physical therapy for treatment; AR 320, and opined that Hart's ability to return to gainful employment on a part-time or full-time basis was “unlikely.” AR 321.

         On April 22, 2005, Unum received an estimated functional abilities form, in which Dr. Nishio indicated that, based on her clinical experience and Hart's reporting, Hart could do the following on an occasional basis: lift up to ten pounds, bend, climb stairs, reach above shoulder, and push or pull fifteen pounds. AR 323. Dr. Nishio also indicated that in an eight-hour workday, Hart could only perform two hours of sedentary activity.[2] AR 324.

         On December 7, 2005, Hart began seeing Dr. Christina Lasich, a Physical Medicine and Rehabilitation specialist.[3] AR 511. On June 30, 2006, Dr. Nishio provided an APS stating that Hart could only sit up to one hour but that she could not walk or stand in an eight-hour work day. AR 472. Dr. Nishio also reported that Hart's “severe” back pain was being treated with analgesics, anti-inflammatories, and muscle relaxers. AR 471.

         On December 5, 2006, Virginia Reynolds, a registered nurse of Unum contacted Dr. Lasich to determine whether Hart was capable of returning to any “gainful occupation.” Dr. Lasich stated Hart could not tolerate prolonged sitting activity as she would need an hourly change in position. AR 610-11. Dr. Lasich further opined that Hart would be “unable to sustain repetitive days in a row of working, ” but that she could sustain part-time work if she had days in between for recovery and for frequent changes in position every hour.[4] AR 611. After the call, Ms. Reynolds concluded Hart “would not have sustainable function due to ongoing pain, ” AR 611, and Unum approved Hart's continued benefits claim that same day. AR 617. That same day, a representative of Unum called Hart to inform her that her continuing benefits had been approved and that Unum was sending her a letter in the mail. AR 620. During this call, Hart mentioned she was considering part-time work as a school nurse. Hart explained she could not work very long without a break, so she might have to alternate days working. Hart also explained she thought she would only make “about 20-30% of what she was making before she got hurt.” The Unum representative told her “as long as her earnings are < 60% of indexed BME (after 24 months), then she would still be eligible for a benefit.” AR 620.

         As mentioned above, Unum agrees the definition of Hart's disability changed from the “regular occupation” definition to the “any gainful occupation” definition on December 27, 2006 (after 24 months of disability payments) according to Hart's policy. Unum Mot. at 7:2-3.

         On January 9, 2007, Hart called Unum to report that she had started part time employment as a school nurse for Nevada Joint Union High School District on December 14, 2006. Hart reported she worked three-fifths of a full-time position in terms of hours, and that she worked Monday, Wednesday, and Thursday. AR 632. On February 9, 2007, Dr. Lasich noted that Hart's part-time work was “going well, ” that Hart was tolerating additional activities like painting & light yard work; Dr. Lasich prescribed Hart 30 mg of MS Contin four times per day. AR 805. On April 11, 2007, Dr. Lasich noted Hart had had no major flare-ups; Hart's part-time job was “working out well”; and Hart was able to work in her yard and do light gardening. Hart was again prescribed to 30 mg of MS Contin four times per day. AR 803

         On November 13, 2007, Dr. Lasich reported Hart was still suffering from recurrent/chronic back pain, but was working part time at 30 hours per week and that Hart was limited to semi-sedentary work. AR 822-23. Dr. Lasich also reported she “never” expected improvement in Hart's capabilities. AR 822. On November 19, 2007, Hart's file was reviewed by Pamela Thurston, a registered nurse of Unum. Ms. Thurston opined that Hart's part-time status remained reasonable and Hart's level of activity did not exceed the restrictions and limitations set by Hart's attending physician. AR 829. Ms. Thurston also noted that it was “unlikely” that Hart's functional capability would improve without surgery.[5] AR 830.

         On March 26, 2008, Hart contacted Unum by phone to inform it she had received notice that her employment as a school nurse was ending July 1, 2008. Hart mentioned that nine other people had been released as well.[6] AR 861. During this call, Hart expressed an interest in seeking other employment; in fact, she mentioned she had applied for a public health job and had received no response, and that she had considered Unum as a potential employer. AR 861. At the same time, Hart stated it had been a “rough semester, ” that she had to increase her pain meds, that “sheer willpower” had kept her working, and that she did not think “there would be any employers out there that would be willing to hire her with her disability.” AR 861.

         On April 2, 2008, Dr. Lasich noted Hart was experiencing more frequent back pain and that working three days in a row was adding to Hart's increased pain. AR 891. On April 21, 2008, Dr. Lasich wrote a letter for Hart explaining that Hart should be permanently excused from jury duty because she was “unable to sit or stand for prolonged periods of time due to chronic pain.” AR 890.

         On May 30, 2008, Hart faxed Unum a letter from Dr. Nishio stating: “Ms. Hart will need to remain off work because of ongoing back pain effective June 6, 2008. I see this disability as permanent and stationary.” AR 871. On May 31, 2008, Dr. Nishio examined Hart and stated her back had been recently aggravated by a cough but was “generally [] well-managed on her meds.” AR 933. Dr. Nishio also noted Hart had to increase the use of Vicodin due to the stress of work, that Hart did not show motor or sensory deficits, and that she was no longer wearing a corset. AR 933. On June 2, 2008, Dr. Lasich noted Hart was using Vicodin and MS Contin daily, that she was unable to tolerate full-time employment, and that she needed to work less than twenty hours per work week for “adequate recovery from lumbar pain.” AR 887.

         Starting sometime around June 2008, Hart began experiencing pain in her right foot. AR 4084. But Hart did not seek medical treatment for her foot at this time. From June 2008 until September 2008, Dr. Lasich continued to prescribe Hart 30 mg of MS Contin four times per day. AR 1037. On September 22, 2008, Dr. Lasich reported Hart was working in her yard daily as long as she sat down frequently and that Hart felt better from eating better. AR 1037. Sometime around December 2008, Hart began seeing Dr. Gina Lokna, M.D., a Sports Medicine Specialist, to address her right foot pain.[7] AR 1015. On December 9, 2008, Hart obtained x-rays of her right foot, which showed no evidence of a fracture or dislocation. AR 4084. On January 13, 2009, Hart had an MRI done on her right foot. The images showed she had “enhancing palpable plantar nodules consistent with Plantar Fibromatosis.” AR 3137. However, Hart reported in February 2012 that she treated her nodule with a crème that caused the nodule to recede.[8] AR 1881.

         On January 26, 2009, Unum conducted a field visit through Daniel Feng. AR 1013. Mr. Feng made some physical observations during his visit to Hart's home. He reported “a subtle but distinct right side limp as she walked, ” that ten minutes into the interview Hart “began repeatedly moving and shifting her body position back and forth in her chair”, and that after fifteen minutes, due to the pain from sitting, Hart had to physically stand up and retreat to her recliner in her living room. AR 1014. At one time during the visit, Mr. Feng observed Hart lift and remove her eleven-pound cat that had jumped onto the dining room table. When Mr. Feng asked if such action caused her back pain, she stated it did not because her cat was lifted from an elevated position. AR 1016. During the interview, Hart reported chronic lower back pain, chronic arthritic pain in her hands, wrists and thumbs, and foot pain from a quarter-size cyst on the bottom of her right arch. AR 1014. When asked about her restrictions and limitations, Hart reported that aside from being in pain all the time, the following caused severe pain in her lower back: (1) standing upright for more than five minutes at a time; (2) sitting upright in an “office-type” setting for more than fifteen minutes at a time; (3) lifting more than ten pounds; and (4) walking more than two or three standard city blocks. AR 1016. When asked about her daily activities, Hart reported she lived by herself and that so long as she was medicated she could handle all her household chores, ...

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