United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT
UNDER FRCP 52; GRANTING DEFENDANT'S CROSS-MOTION FOR
JUDGMENT UNDER FRCP 52 RE: DKT. NO. 86
J. Davila United States District Judge
action under the Employee Retirement Income Security Act of
1974, 29 U.S.C. §1001, et seq.
(“ERISA”), Plaintiff Robert Gordon
(“Plaintiff”) seeks long term disability benefits
from Defendant Metropolitan Life Insurance Company
(“Defendant”). Plaintiff contends that the
medical records show that he was forced to leave his
employment with Borland Software “Borland” due to
severe depression, anxiety, and symptoms of post-traumatic
stress disorder caused by harassment and threats from his
immediate supervisor at Borland. Pl.'s Mot. For J. Under
FRCP 52 (Dkt. No. 86). Plaintiff contends that these
psychological conditions, in conjunction with spinal, knee
and shoulder injuries, left him totally disabled.
Id. Presently before the Court are the parties'
competing motions for judgment under Federal Rule of Civil
Procedure 52. Based upon all pleadings, the evidentiary
record, and the comments of counsel and for the reasons set
forth below, the Court DENIES Plaintiff's motion for
judgment and GRANTS Defendant's motion for judgment.
worked as a Senior Staff Systems Programmer with Ashton-Tate
starting in 1989. In 1991, Ashton-Tate was purchased by
Borland and Plaintiff worked for Borland until May 1, 2002.
As a Borland employee, Plaintiff was eligible for LTD
benefits through the Borland Software Corporation LTD Plan
(“the Plan”), which is governed by ERISA. The
Plan covered Eligible Employees (active, full-time employees
working 30 hours per week). Administrative Record
(“AR”) at 1462, 1466, 1487. Defendant MetLife
funded LTD benefits under the Plan and was also the claim
administrator for the LTD claims.
receive LTD benefits under the Plan, Plaintiff must have been
“disabled” and “unable to earn more than
80% of [his] Earnings or Indexed Predisability Earnings at
[his] Own Occupation for any employer in [his] Local
Economy.” AR at 1470. The Plan defines
“Disabled” in pertinent part as follows:
“Disabled” or “Disability” means
that, due to sickness, pregnancy or accidental injury, you
are receiving Appropriate Care and Treatment from a Doctor on
a continuing basis; and
1. during your Elimination Period and the next 60 month
period, you are unable to earn more than 80% of your
Predisability Earnings or Indexed Predisability Earnings at
your Own Occupation for any employer in your Local Economy .
Id. “Appropriate Care and Treatment”
means “medical care and treatment that meet all of the
following: 1. it is received from a Doctor whose medical
training and clinical experience are suitable for treating
your Disability; 2. it is necessary to meet your basic health
needs and is of demonstrable medical value; 3. it is
consistent in type, frequency and duration of treatment with
relevant guidelines of national medical, research and health
care coverage organizations and governmental agencies; 4. it
is consistent with the diagnosis of your condition; and 5.
its purpose is maximizing your medical improvement.” AR
at 1471. “Elimination Period” means “90
days of continuous Disability.” AR at 1463. A
participant's “Own Occupation” is defined as:
the activity that you regularly performed and that serves as
your source of income. It is not limited to the specific
position you held with your Employer. It may be a similar
activity that could be performed with your Employer or any
1471. The Plan provides that the claimant's loss of
earnings “must be a direct result of [the
claimant's] sickness, pregnancy or accidental
injury.” AR at 1470. The Plan contains a 24-month
limitation for disabilities due to a mental or nervous
disorder or disease. AR at 1485.
April 19, 2002, Dr. Koopman placed Plaintiff off work for one
week. AR at 1112. Plaintiff returned to Dr. Koopman's
office one week later on April 26, 2002. AR at 1113.
Plaintiff planned to return to work to work on April 29,
returned to work on May 1, 2002, but was terminated that same
day due to “performance issues” and his behavior
at a meeting with Human Resources. AR at 1412-13. Upon
termination, Plaintiff ceased to be an Eligible Employee and
his coverage under the Plan ended. AR at 1487. On August 22,
2005, the Social Security administration found Plaintiff
disabled as of December 13, 2003. AR at 1085.
October 22, 2009, Plaintiff submitted a claim for LTD
benefits for a disability beginning April 19, 2002. AR at
1440. He indicated on the claim form that he suffered from
the following conditions that prevented him from performing
his job: arthritis in the spine and joints; severe insomnia;
collapsed thoracic vertebra; very large spinal osteophytes;
herniated vertebral discs; severe cervical foraminal
stenosis; depression; chronically active viruses; anxiety;
ADD; heart palpitations; impaired short-term memory; migraine
headaches; chronic system inflammation; left knee surgery;
cervical spine surgery; left shoulder surgery; Apico/jaw
surgery; sinus surgery; thoracic and lumbar disc disease;
chronic esophagitis; and chronic sinusitis. AR at 1440-41.
Accompanying Plaintiff's claim form was a note from his
treating physician, Dr. Resneck-Sannes, dated October 15,
2009, which indicated that the most recent date of treatment
was October 15, 2009, and stated that Plaintiff had
“disabling back & neck pain for degenerative disc
disease, ” “chronic migraine headaches, ”
and “failed knee and shoulder surgery” since
February of 2002. Id.
initiated this action in November of 2010. See
Compl., (Dkt. No. 1). Pursuant to stipulation, the action was
stayed while Defendant resolved Plaintiff's appeal. In
2012, Defendant determined that Plaintiff had coverage under
the Borland Plan through May 1, 2002 (AR at 947), and
notified Plaintiff that his LTD claim was denied because the
information in the claim file did not support a finding of
Disability. AR at 776. Plaintiff appealed Defendant's
decision. Defendant has not issued a formal decision on
Court lifted the stay and restored the case to active
litigation in January of 2015. Dkt. No. 48. The Court
determined that Defendant's benefit decision was subject
to review under an abuse of discretion standard. Dkt. No. 60.
The parties filed cross-motions for summary judgment. Dkt.
Nos. 62, 64. By order dated September 7, 2017, the Court
denied Plaintiff's motion, granted Defendant's
motion, and entered judgment in favor of Defendant. Dkt. Nos.
72, 73. On appeal, the Ninth Circuit reversed and remanded,
holding that the denial of benefits is subject to de
novo review and that the competing medical opinions
regarding Plaintiff's disability created a genuine
dispute of material fact. The parties now cross-move for
judgment under Federal Rule of Civil Procedure 52.
conducting a de novo review, the court considers the
record and then “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). An ERISA de
novo review is a bench trial in which the district court
sits as finder of fact and determines, as a factual matter,
whether the claim should have been approved. Kearney v.
Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999);
Frank v.Wilbur-Ellis Co. Salaried Employees LTD
Plan, No. 08-284 LJO, 2009 WL 347789, at *5 (E.D. Cal.
Feb. 11, 2009) (on de novo review, court determines
whether benefit decision was correct or incorrect). The court
first examines the governing plan documents. Metro. Life
Ins. Co. v. Parker, 436 F.3d 1109, 1113 (9th Cir. 2006);
Gertjejansen v. Kemper Ins. Companies, Inc., No.
06-56329, 274 Fed.Appx. 569, 571 (9th Cir. 2008). The court
then makes an independent determination of the claim on the
merits. Parra v. Life Ins. Co. of North Am., 258
F.Supp.2d 1058, 1064 (N.D. Cal. 2003). When a court conducts
a de novo review, the burden of proof is on the
claimant. Muniz v. Amec Const. Mgmt., Inc., 623 F.3d
1290, 1295 (9th Cir. 2010).
conducted a de novo review, the Court finds that the
Plan correctly determined that Plaintiff was not
“Disabled” from performing his “Own
Occupation” prior to his May 1, 2002 termination date.
Although the Administrative Record confirms that Plaintiff
suffered from multiple medical conditions prior to May 1,
2002, the medical records fail to establish (1) that
Plaintiff was receiving care and treatment for any of those
medical conditions on a continuing basis and (2) that during
the Elimination Period and the next 60 month period Plaintiff
was unable to earn more than 80% of his Earnings or Indexed
Predisability Earnings at his Own Occupation for any employer
in his Local Economy.
Koopman's Assessment and Notes in April of 2002
in the Administrative Record is an April 19, 2002
workers' compensation report by Dr. Jane Koopman with the
Santa Cruz Medical Clinic. AR at 1111-12. Dr. Koopman
described Plaintiff as “a 49-year old staff systems
programmer at Borland who presents complaining of emotional
distress” arising out of Plaintiff's working
conditions and a hostile supervisor. AR at 1111.
Specifically, Dr. Koopman's notes included the following
description of Plaintiff's work conditions:
History here is that there have been some changes of
personnel over the last nine months at his work. This has
placed a great deal of stress on his boss who has been
passing some of this on to the patient. He has been
threatening to fire him and berating him in public. He has
been given contradictory orders. The patient has complained
to Human Resources three times in the past couple of months.
Yesterday, there was an episode where his boss accused him of
mismanaging a project that was not even his. The patient
turned around and walked away. His boss approached him in
such a manner, that he actually felt physically threatened.
There was no altercation, but shortly afterward the patient
felt quite nauseated with his heart racing, sweating and went
and informed his employer that he was leaving work for the
Id. Dr. Koopman noted that Plaintiff was taking
blood pressure medication, Ativan and Topamax; that he was
having difficulty falling asleep and waking up; that he has
been having trouble concentrating and difficulty with his
memory; that he reported feeling depressed; and that
“heart racing episodes” have been occurring for
several days, but these episodes do not involve shortness of
breath, chest pain or nausea. AR at 1111-12. Dr. Koopman
observed that Plaintiff initially had difficulty even
starting to speak and appeared very stressed. Dr.
Koopman's assessment was that Plaintiff had “1.
Stress reaction with both anxiety and depressive features. 2.
hypertension. 3. Complaints of palpitations-probably part of
his anxiety but would like to rule out arrhythmia.” AR
at 1112. Dr. Koopman wrote that she “placed [Plaintiff]
off work for a week until he can return here and let me know
the status with regard to the job transfer he is hoping to
achieve.” Id. Testing later confirmed that
Plaintiff had no heart condition. AR at 1118.
to a Doctor's First Report of “Occupational Injury
or Illness” dated April 22, 2002, Plaintiff reported to
Dr. Koopman that constant threats and harassment from his
boss caused him to feel faint and nauseated, and to suffer
elevated blood pressure, rapid heartbeat and sweating. AR at
1132. On April 26, 2002, Plaintiff had a follow up visit with
Dr. Koopman. The notes of the visit indicate that a
Worker's Compensation attorney recommended that Plaintiff
return to work if he could be transferred to another
department, and that Plaintiff planned to return to work the
following Monday. Dr. Koopman observed that Plaintiff did not
seem quite as withdrawn as on his last visit, but that he
still had a “somewhat flat affect.” AR at 1113.
Dr. Koopman's assessment was that Plaintiff had:
“1. Stress reaction with both anxiety and depressive
features. 2. Hypertension in good control today. 3. History
of palpitations; pending Holter results.” Id.
Dr. Koopman wrote a note for Plaintiff stating,
“[Plaintiff's] anxiety and depression, secondary to
work stress, is better than when I saw him 4/19/2002, but I
have advised a transfer to another department if he is to
avoid further flare-ups in his symptomology.”
Id. Dr. Koopman's notes of the visit also
indicate that Plaintiff “planned to go to work on
Monday and see where things stand. He had talked to the
person at work who had indicated there might be a job
transfer available, and they said that was still
pending.” Id. Dr. Koopman's notes also
indicate that Plaintiff “did express to me today the
feeling that they are trying to get him to quit.”
Zweng's April 29, 2002 Assessment
April 29, 2002, Plaintiff was seen by Dr. Dean G. Zweng at
the Santa Cruz Medical Clinic, who noted the following:
A 49-year old who has been off work due to anxiety and job
stress. He feels like he needs to get back to work, although
it does not feel too much better. He did meet with his
employers and some changes were made to decrease his level of
stress at work. On further questioning, he has had some
chronic feelings of irritability and inability to make
decisions, sleep disturbance, anxiety and agitation. In low
mood and tearfulness. He has a bedridden daughter for four
years at home and a history of depression. He has been on
different anti-depressant medications in the past mainly to
control his chronic pain issues of his neck and back. He was
able to tolerate Paxil in the past; however, it did not help
his chronic pain. He has also been on Celexa recently which
caused him too much agitation, and he could not tolerate
Zoloft or try a cycle of antidepressants. He also has a
history of hypertension.
AR at 1116. Dr. Zweng's notes indicate that
Plaintiff's current medications were: “High blood
pressure medicine, Topamax, given to him by a psychiatrist
for his agitation, Ambien, Aciphex and Darvocet.”
Id. Dr. Zweng's assessment was that Plaintiff
had “[a]djustment reaction with anxiety and depression
with probably underlying major depression.”
Id. Plaintiff decided to start taking Paxil.
Id. Dr. Zweng advised Plaintiff to follow up with a
psychiatrist, but Plaintiff was reticent to do so.
Id. Dr. Zweng released Plaintiff “back to
regular work.” Id.
Court finds that the visits with Drs. Koopman and Zweng
summarized above indicate that Plaintiff was receiving care
for his mental health during the month of April 2002. This
evidence might satisfy the first of the two requirements to
establish a Disability under the Plan: “due to sickness
. . . you are receiving Appropriate Care and Treatment from a
Doctor on a continuing basis.” AR at 1470. However, the
Court finds that the medical records from April of 2002 fail
to establish the second requirement under the Plan: that
during the 90 day Elimination Period and for the next 60
months period, Plaintiff was unable to earn more than 80% of
his Earnings or Indexed Predisability Earnings at his Own
Occupation for any employer in his Local Economy.
Id. Neither Dr. Koopman nor Dr. Zweng opined that
Plaintiff was unable to work at his Own Occupation for an
employer in his Local Economy. Rather, on Friday, April 19,
2002, Dr. Koopman initially placed Plaintiff on leave for a
limited duration of one week until he could return and let
her know whether he was able to transfer to another position.
AR at 1112. When Plaintiff returned for another visit,
Koopman signed a Work Status Report form dated April 26,
2002, indicating that Plaintiff's “Work
Status” was “Modified with limitations listed
below” and specifying under “Work
Limitations” that Plaintiff “needs to be under
different manager in different dept.” AR at 1115. Dr.
Zweng also released Plaintiff to return to work on Monday,
April 29, 2002. Id. at 1116. That two doctors
cleared Plaintiff to return to work is inconsistent with
Plaintiff's assertion that as of April 19, 2002, he was
unable to work at his Own Occupation during the Elimination
Period and the next 60 month period.
Mears's May 1, 2002 Assessment
1, 2002, Plaintiff was seen by Dr. William C. Mears at the
Santa Cruz Medical Clinic. Dr. Mears noted that Plaintiff
“continues with anxiety, rapid heartbeat, unable to
sleep. . . . Also increased anxiety at work. He said that he
was suspended today.” AR at 1119. Dr. Mears's
assessment was that Plaintiff had: “1. Palpitations;
work-up in progress. 1. Adjustment disorder with anxiety and
depression related to job stressors. 3. Insomnia, possibly
related to his Paxil.” Id.
Court concludes that Dr. Mears's notes do not support a
finding of Disability within the meaning of the Plan.
Instead, the notes are indicative of the same interpersonal
clash with Plaintiff's supervisor that prompted Plaintiff
to seek treatment with Dr. Koopman in April of 2002. AR at
1111. Dr. Mears's notes indicate that Plaintiff's
anxiety and depression are related to Plaintiff's
particular job. AR at 1119. There is no evidence that
Plaintiff's anxiety and depression prevented him from
working at a different job. To receive LTD benefits under the
Plan, Plaintiff must have been unable to earn more than 80%
of his Earnings at his “Own Occupation” for any
employer in his Local Economy. The Plan specifies that
“Own Occupation” is not limited to the specific
position Plaintiff held. AR at 1471. Dr. Mears wrote that
“Plaintiff can return to work but due to his job stress
under one supervisor, it is recommended ...