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McBurnie v. Life Insurance Company of North America

United States District Court, C.D. California

June 6, 2017

Alice McBurnie
Life Insurance Company of North America




         In this Employment Retirement Income Security Act (“ERISA”) action, Alice McBurnie (“Plaintiff”) alleges she was wrongfully denied disability benefits. Plaintiff seeks recovery of disability benefits under an ERISA-governed benefit plan established and maintained by her former employer, Macy's Inc. (“Macy's”). Life Insurance Company of North America (“LINA” or “Defendant”) is the payor of the benefits Plaintiff seeks.

         Plaintiff and Defendant filed their trial briefs on February 28, 2017. (“Pl. Br., ” Dkt. No. 34, and “Def. Br., ” Dkt. No. 32.) On March 21, 2017, the Parties each filed responsive trial briefs. (“Pl. Opp'n, ” Dkt. No. 39, “Def. Opp'n, ” Dkt. No. 38.) Upon reviewing the Parties' trial briefs and the Administrative Record (“AR”), the Court determined that oral argument was unnecessary for decision on this matter, and therefore took the matter under submission on May 16, 2017. See Local Rule 7-15; Fed.R.Civ.P. 78.


         “In bench trials, Fed.R.Civ.P. 52(a) requires a court to ‘find the facts specially and state separately its conclusions of law thereon.'” Vance v. American Hawaii Cruises, Inc., 789 F.2d 790, 792 (9th Cir. 1986) (quoting Fed.R.Civ.P. 52(a)). “One purpose behind Rule 52(a) is to aid the appellate court's understanding of the basis of the trial court's decision. This purpose is achieved if the district court's findings are sufficient to indicate the factual basis for its ultimate conclusions.” Id. (citations omitted). The following constitutes the Court's findings of fact based on the Administrative Record.[1]

         Plaintiff worked for Macy's as a Sales Manager for approximately six years, from November 2004 until March 2010. (AR 5.) This job required her to “spend 75 to 80% of the week on the selling floor, ” train and coach associates, “ensure optimum sales floor coverage to support anticipated business, ” “manage selling floor and fitting room recovery and merchandise fill-in process, ” “manage physical inventory process, ” and satisfy other related duties. (AR 570, 909.) This job was classified as requiring “light demand activities” according to CIGNA Group Insurance because its physical demand requirements included “lifting, carrying, pushing, pulling 20 lbs occasionally, frequently up to 10 lbs, or negligible amount[s] constantly, ” and “walking and/or standing frequently.” (AR 910.)

         In 2007, Plaintiff underwent a lumbar fusion to address a 20-year old fracture of her lumbar spine. (AR 757.) This procedure and recovery forced her to take leave from work for one year. (Id.) However, she “fully recovered” and had no work restrictions remaining when she returned to work. (Id.)

         On March 14, 2010, Plaintiff fell on an escalator while at work when the escalator stopped abruptly. (AR 84, 111, 754, 759, 761.)[2] This fall heralded her last day of work: she officially “ceased working” on April 1, 2010. (AR 130.) At the time of her fall, she noticed pain in her lower back, which increased to severe pain within approximately five days. (AR 754.) She subsequently sought medical treatment, and received Percocet, anti-inflammatories, and a Toradol injenction. (Id.) However, when her pain continued to increase, she was referred to Dr. Tahernia, an orthopedic surgeon in Rancho Mirage, who ordered an MRI study of the lumbar spine. (AR 755.) The study showed an injury at ¶ 3-4. (Id.) She subsequently underwent surgery “to include laminectomy, foraminotomy, hardware removal, and evaluation of the fusion.” (Id.) However, and despite extensive physical therapy, she continued to experience “episodic throbbing, ” “stabbing pain that radiate[d] to the left foot, ” spasms, and numbness in her left foot. (Id.)

         In January 2012, Dr. Darren Bergey, M.D., Plaintiff's orthopedic spine surgeon and primary treating physician, conducted an evaluation of Plaintiff's condition, noting the abnormal CT scan of her lumbar spine, left L5 foraminal stenosis due to bone overgrowth, “hypersensitivity with paresthesias, ” motor loss to her left foot, and her complaints of ongoing back pain with radiation into the left leg and foot. (AR 781.) He recommended “no pushing, pulling, lifting greater than 25lbs, ” “limited bending and stooping, ” and concluded that she met the criteria for “DRE Lumbar Category V in the 25% to 28% impairment of the whole person range.” (AR 781.)

         During that time, Plaintiff was also seen by orthopedic surgeon Peter J. Sofia, M.D., the Qualified Medical Evaluator appointed by the Workers' Compensation Appeal Board (“WCAB”). (AR 885-894.) He, too, documented her complaints of persistent lower back pain and radiating left leg pain, as well as decreased lower extremity sensation on her left foot, a reduced range of motion of the back, and decreased strength. (AR 888-891.) He diagnosed her with “isthmic spondylolisthesis, ” “new onset left leg radicular pain, ” “S1 decompression with residual symptoms and residuals that are not expected to improve, ” and arachnoiditis, and determined that she had “reached a plateau of maximum medical improvement.” (AR 890, 892.) He also found that the primary cause of disability was the March 14, 2010 fall. (AR 891.) Finally, he concluded that she was “not capable of performing the prolonged, sustained stationary standing and walking required by her and customary occupation of sales clerk or sales manager and is unable to safely return to that type of work.” (AR 892.) Instead, she required a work restriction “falling midway between limitations to light and semi-sedentary work, ” explaining that she should be permitted to be off her feet for 20 minutes for every 40 minutes of sustained or continual weight-bearing. (AR 891.)

         In October 2012, Plaintiff submitted a long-term disability (“LTD”) claim with LINA. (AR 904, 912.) She withdrew this claim in November 2012, explaining she did not want the “hassle” (AR 100), but re-opened her claim in May 2014 (AR 92). LINA then approved her for benefits in June 2014 and paid out those benefits retroactively for a period of disability beginning in September 2012. (AR 178.) In August 2014, however, LINA notified Plaintiff that “the definition of Disability will change, ” and that it would have to conduct a review of her file to determine if she would continue remain eligible for benefits under the new standard. (AR 178.) Specifically, while the previous standard required LINA to consider whether Plaintiff was capable of returning to her own occupation, the new standard-which became effective after Plaintiff had received over 24 months of disability payments-required LINA to consider whether Plaintiff could perform the essential duties “of any occupation for which she [] is, or may reasonably become, qualified.” (AR 178 (emphasis added).) One month later, on September 3, 2014, LINA informed Plaintiff that, after completing their review of her claim under this new standard, it determined that she was no longer entitled to continued benefits. (AR 175.) That letter explained that the 2012 assessments conducted by Dr. Bergey indicated that, although she had restrictions on pushing, pulling, and lifting more than 25 pounds, she was “capable of functioning at a sedentary level of demand.” (AR 176.) Based on his assessment, as well as her education and employment history, LINA concluded that she would be able to perform the following occupations: assignment clerk, order taker supervisor, or personnel scheduler. (Id.)

         Plaintiff appealed LINA's claim decision on February 3, 2015. (AR 514.) Her appeal letter included copies of more recent medical records, including a June 2014 evaluation by Dr. JienSup Kim, M.D., an August 2014 evaluation by Dr. Bergey, a December 2014 evaluation by Dr. Bergey, a January 2015 evaluation by Dr. Bergey, and a January 2015 MRI report from Christopher R. Hancock, M.D. (AR 518-537.) However, on May 15, 2015, LINA upheld its prior decision to deny her claim. (AR 150.) The letter indicated that the medical reviewer “attempted to contract [Plaintiff]s] treating providers Dr. Roger and Dr. Bergey, ” but were unsuccessful. (AR 151.) Based on the medical records Plaintiff provided, LINA determined that Plaintiff could stand up or walk for two out of eight hours and sit for six out of eight hours. (Id.) The letter also indicated that “[s]tand walking [sic] is not recommended for more than 15 minutes consecutively with 30 minutes of rest.” (Id.) Accordingly, LINA reaffirmed the Plaintiff could perform the three occupations identified in its earlier letter. (Id.)

         In response, Plaintiff submitted a second appeal providing updated medical documents and criticizing LINA's analysis in reaching its claim decision. (AR 395.) Specifically, Plaintiff emphasized the medical reports of Dr. Bergey, Dr. JienSup Kim, Dr. Douglas Roger, Dr. Stanton Kremsky, and Dr. Er-Kai Gao as proving that she could not return to work. (AR 395-98.) In response, LINA obtained a peer review of the reports of Plaintiff's physicians from Meghana C. Karande, M.D. (AR 483.) Dr. Karande did not personally evaluate Plaintiff or speak with any of Plaintiff's physicians. (AR 484.) Dr. Karande reviewed the reports of Dr. Bergey, Dr. Kim, and Dr. Roger, and concluded that Plaintiff suffered from chronic lumbar pain, but that she could stand or walk for two out of eight hours, and would be able to sit for six out eight hours. (AR 486.) Based on Dr. Karande's conclusion, LINA informed Plaintiff on May 13, 2015 that it stood by its previous finding that Plaintiff could perform the sedentary occupations of assignment clerk, order taker supervisor, or personnel scheduler. (AR 482.)

         Because the Parties' conflict centers on whether Plaintiff is, in fact, able to perform the duties of these sedentary occupations, the Court outlines here the findings and conclusions of the above-referenced reports, as well as more recent medical records documenting Plaintiff's condition. As a note, the Court focuses here on the medical records from 2014 and on, since the question is whether LINA wrongfully denied Plaintiff's claim in September 2014 (and wrongfully reaffirmed its denial following Plaintiff's appeals); Plaintiff's condition in 2012 and 2013, while not irrelevant, thus has less probative value here than her condition-as documented in medical records-through 2014 and 2015.

         August 27, 2104, December 19, 2014, & January 29, 2015 reports from Dr. Bergey (spinal surgeon) - AR 522-35

         Dr. Bergey examined and treated Plaintiff numerous times beginning in 2011. His reports consistently document that she experienced lower back and radicular pain, and note that, beginning in 2014, she began to experience pain radiating down her right leg (although the pain had originally affected only her left leg). He further recorded her complaint that “her left leg gave out causing her to fall several times, ” her “inability to stay in one position for extended periods, ” and noted that “she has ongoing spasms” requiring medication. He found that she presented “palpable tenderness of the paravertebral muscles, bilaterally, ” and that her MRI scans documented “a small annular tear at ¶ 4-5, ” “grade I spondylolisthesis at ¶ 5-S1, ” and “at least moderate foraminal narrowing.” However, he did not make any recommendations with regard to work restrictions.

         June 13, 2014 report from Dr. Kim (physical medicine and rehabilitation specialist) - AR 586-89

         Dr. Kim met with Plaintiff for an initial pain management evaluation. He noted that she experienced pain in her low back that radiated down both legs. He found that the “range of motion of the lumbar spine is significantly limited secondary to pain, ” as well as “tenderness to palpation over the paraspinal muscles in the lumbar region bilaterally.” He determined that she had a “degenerative disc disease at ¶ 5-S1” and “an annular tear at the same level.” He did not make any recommendations with regard to work restrictions.

         March 9, 2015 & April 15, 2015 reports from Dr. Roger (orthopedic surgeon) - AR 407-08

         Dr. Roger's one-page report for March 9 states: “The patient is Temporarily Totally Disabled until the next appointment on 04-15-15.” His one-page report for April 15 does not indicate her disability status, but notes only that her condition is “Permanent & Stationary with no return visits scheduled.” (Strangely, he also checked the box indicating that she had a return appointment on May 27, 2015.)[3]

         August 11, 2015 report from Dr. Johnson (orthopedic surgeon) - AR 372-381

          Dr. Johnson conducted an “initial orthopedic evaluation, ” and found “tenderness to palpation at the bilateral PSISs, ” “bilateral lumbar paraspinal muscle guarding, ” and decreased sensation “at the L4, L5, and S1.” He noted that she complained of “constant moderate to severe” pain associated with “numbness and tingling of the bilateral lower extremities, ” and recorded her complaint that the pain “is aggravated by prolonged positioning including sitting, standing, walking, bending, arising from a sitting position, ascending or descending stairs, and stooping.” He diagnosed her, among other things, with “lumbar spine sprain/strain, ” radiculitis in the lower extremity, and residual pain from two lumbar spine surgeries. He also concluded that she was “temporarily totally disabled as from 8/11/2015 to 9/22/2015.” However, he also qualified his conclusion by noting that, “should either a detailed JA or RU91 be sent for my review, I will be more than happy to address alternative/modified duty and work status in greater detail . . . It would also be helpful to know specifically what the employer is willing to provide in the way of ...

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