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rejecting the reports of insurer's two reviewing doctors because their reports "focused largely on [the plaintiff's] ability to sit, and, after finding that [she] was capable of sitting, concluded that she was not precluded from performing her sedentary job as a financial analyst"
Summary of this case from Brown v. Unum Life Ins. Co. of Am.Opinion
No. C-03-5135 MMC.
April 11, 2005
ORDER GRANTING JUDGMENT FOR PLAINTIFF AFTER BENCH TRIAL
Before the Court for decision are the claims of plaintiff Cynthia Fleming ("Fleming") against defendants Kemper National Services, Inc.; Vodafone Americas, Inc. Short Term Disability Plan; and Vodafone Americas, Inc. Long Term Disability Plan (collectively, "Kemper"). A bench trial was held on the administrative record, and the following constitutes the Court's findings of fact and conclusions of law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. For the reasons set forth below, judgment is GRANTED in favor of Fleming.
BACKGROUND
In this ERISA action, Fleming alleges a single ERISA claim, under 29 U.S.C. § 1132(a)(1)(B), for short-term and long-term disability insurance benefits under the Vodafone Americas, Inc. Short Term Disability Plan ("STD plan") and the Vodafone Americas, Inc. Long Term Disability Plan ("LTD plan").
For purposes of the Court's discussion, infra, the Court finds the following facts to be true.
A. Fleming's Occupation
Fleming has worked in financial accounting for more than twenty years, and began working as a senior financial analyst for Vodafone, Inc. ("Vodafone") in April 2001. (See Penrose Decl., filed Oct. 29, 2004, Ex. B ("Admin. Record") at CF0260 ¶¶ 2-3.) Fleming's responsibilities included accounting for all the revenue of her division at Vodafone, reviewing contracts, overseeing collections proceedings, engaging in extensive communication with project managers and customers, and overseeing the monthly "close process" in which she would reconcile the bookkeeping. (See id. ¶ 4.) Her job required her to multi-task all day, and required her to be both physically and mentally "sharp." (See id.) Her job also required her to walk to meetings, stand to copy and fax materials, go to different floors to obtain information from fellow employees, and travel to participate in "company social and morale activities such as walking to lunch meetings." (See id. ¶ 3.) Fleming's position is sedentary in nature and requires a high level of cognitive functioning. (See id. at CF0270-71.)
B. Medical History
In December 2001, Fleming injured her ankle while walking on a sidewalk. (See id. at CF0250.) Fleming was told by urgent care medical staff to ice her ankle and to "stay off of it." (See id.) Thereafter, her "ankle gave way on [her] way to work and [she] tripped on the stairs at the BART station due to the weakness in [her] foot." (See id. ¶ 6.)
On February 2, 2002, Fleming was seen in the Urgent Care Office of the Palo Alto Medical Foundation by Enoch Choi, M.D. ("Dr. Choi"). (See id. at CF0390.) Fleming complained of pain in her left ankle that had lasted for one week. (See id.) Dr. Choi noted that Fleming's symptoms had started after an "inversion" injury. (See id.) Dr. Choi further noted that Fleming had swelling and redness in her left ankle and concluded that Fleming had suffered a "mild sprain" but that her "Achilles tendon [was] intact." (See id. at CF0391.)
On April 5, 2002, Fleming was again examined regarding her ankle injury, this time by Dr. Soa Yee Tsung ("Dr. Tsung"), her primary care physician. (See id. at CF0388; see also id. at CF0250.) Fleming explained to Dr. Tsung that she had fallen in December of 2001 and could "not recall exactly what she did but developed a bruise on top of her foot." (See id. at CF0388.) After the fall, Fleming explained, she "[w]aited for [her ankle] to get better . . . and [again hurt her ankle in a] similar [way] when she was walking down a hill." (See id.) Fleming complained that she was feeling pain in her left ankle "with weight bearing as well as with walking." (See id.) Dr. Tsung observed that Fleming's left foot had "post inflammatory hyperpigmentation over the dorsum," there was "[n]o erythema or warmth" and the left foot had a "[f]ull range of motion but pain with inversion." (See id. at CF0389.) Because the pain in Fleming's ankle had not subsided, Dr. Tsung decided to request an X-ray of the ankle "to rule out fracture." (See id.)
An X-ray of Fleming's left ankle was taken on April 5, 2002 and, after reviewing the results, Dr. Tsung concluded that the X-ray did not reveal "evidence of fracture." (See id. at CF0387.) Dr. Tsung then decided to "proceed with ankle [MRI] given [Fleming's] persistent pain" and referred Fleming to the podiatry department of the Palo Alto Medical Foundation. (See id.)
On April 25, 2002, Chris Goumas, M.D. ("Dr. Goumas') performed an MRI examination of Fleming's left ankle. (See id. at CF0464.) Dr. Goumas' report included the following observations regarding Fleming's left foot and ankle:
The peroneal tendon relationship is somewhat disrupted with slight lateral positioning of the peroneus longus tendon in relation to the peroneus brevis tendon at the inferior posterior aspect of the lateral malleolus. Just distal to this, along the plantar aspect of the foot, the peroneus longus tendon demonstrates abnormal increased intrinsic signal suggestive of tendinosis/tendinopathy. It does not demonstrate definite fluid characteristics to suggest a tear, and the findings are more consistent with a strain and/or mucinous degeneration. . . . The Achilles tendon appears normal. . . . The anterior talofibular ligament is markedly attenuated and partially torn.
(See id. at CF0465.)
On May 10, 2002, Fleming saw Thana Krisdakumtorn, D.P.M. ("Dr. Krisdakumtorn"), a specialist at the Palo Alto Medical Foundation Podiatry Department. (See id. at CF0382.) Dr. Krisdakumtorn concluded that the MRI exam showed "signs of attenuation and [history] of tear along the peroneal longus tendon just distal to the malleolus." (See id. at CF0383.) Dr. Krisdakumtorn observed that Fleming was "unable to walk/weightbear without pain." (See id.) His assessment of Fleming's condition was "peroneal tendonitis/tear" and "[history] of ankle sprain." (See id.) During Fleming's thirty minute visit, Dr. Krisdakumtorn also discussed possible treatment and "recommended surgical correction as [Fleming] ha[d] had disabling pain for [more than] 5 months[,] despite rest and use of an ankle brace." (See id.)
On June 28, 2002, Fleming underwent surgery to repair her peroneal tendon and ankle ligament. (See id. at CF0377.) The surgery was conducted by Dr. Krisdakumtorn with the assistance of Amol Saxena, D.P.M. ("Dr. Saxena"), the senior foot surgeon at the podiatry department of the Palo Alto Medical Foundation. (See id.; see also id. at CF0250.) Fleming's pre- and post-operative diagnosis was tear of the peroneal tendon in the left ankle and sprain of the left ankle. (See id. at CF0377.)
On July 1, 2002, Fleming visited Dr. Krisdakumtorn for a post-operative exam during which he observed: "Area [of her left ankle] is slightly edematous and warm. There is some redness which extends proximally about 1.5 inches from the incision site." (See id. at CF0376.) Dr. Krisdakumtorn also found "some superficial cellulitis." (See id.)
Fleming had another post-operative visit with Dr. Krisdakumtorn on July 3, 2002, at which visit Dr. Krisdakumtorn observed that there was still some redness and that the "[a]rea of redness [was] extremely sensitive to touch." (See id. at CF0375.) The doctor's assessment at that visit was "some superficial cellulitis vs RSD." (See id.) Dr. Krisdakumtorn "warned" Fleming "about possible chronic pain syndrome." (See id.)
RSD is an acronym for reflex sympathetic dystrophy.
On July 12, 2002, Dr. Krisdakumtorn saw Fleming again. (See id. at CF0373.) Fleming complained that she had been "having continued tingling/burning pain along her lateral ankle which ha[d] made it difficult for her to sleep." (See id.) The doctor's assessment at this visit was "probable RSD" and Fleming again received a warning about "possible chronic pain syndrome." (See id. at CF0373, CF0374.) Dr. Krisdakumtorn gave Fleming a prescription for Elavil. (See id. at CF0374.)
On July 16, 2002, Fleming had another post-operative appointment with Dr. Krisdakumtorn during which Fleming complained that Elavil had helped with the pain in her ankle but made her "loopy." (See id. at CF0372.) Dr. Krisdakumtorn noted: "After discussion with Dr. John Lu about possible RSD, we decided to proceed with adding Neurontin 300 mg × 5 days." (See id.)
On August 13, 2002, Fleming had another appointment with Dr. Krisdakumtorn. (See id. at CF0370.) Fleming informed the doctors that she had stopped taking Elavil "since she [was] unable to work while taking it." (See id.) Dr. Krisdakumtorn noted that the area of the surgery on Fleming's left ankle was "less edematous yet still [felt] cool to touch as compared to [her] opposite foot." (See id.) The doctor also observed that Fleming was "[u]nable to invert/evert [her ankle] without pain" and that she experienced "pain with peroneal testing." (See id.) Dr. Krisdakumtorn extended Fleming's disability until September 2, 2002. (See id. at CF0371.)
Nonetheless, Fleming returned to work in August 2002 because she feared losing her job. (See id. at CF0261.) For two months, Fleming worked a reduced schedule of four hours each day. (See id.) She used crutches to move around the office, but had difficulty moving from place to place; going through doors was difficult, because the door would often touch her foot, causing her extreme pain. (See id.) Her medications made her drowsy, and if she sat too long, her attention focused solely on the pain in her foot and ankle. (See id.) Her foot alternated between feeling "ice cold" and feeling "hot and burned," and these perceived temperature variations "plagued" her on a daily basis. (See id.)
At her appointment with Dr. Krisdakumtorn on August 30, 2002, Fleming reported "gradual improvement despite having continued tingling/burning pain along her lateral ankle." (See id. at CF0369.) In addition, Fleming informed the doctor that "[s]he had been able to progress to partial [weight bearing] using the crutches for balance." (See id.) Fleming was able to invert and evert her ankle without pain, although there was still pain with peroneal testing. (See id.) Dr. Krisdakumtorn's plan was for Fleming to "progress to full work status with restrictions on allowing [her] to take time off from work for continued [physical therapy] once/week" for about 2 hours. (See id.)
On September 27, 2002, Fleming saw Dr. Krisdakumtorn again and reported "gradual improvement." (See id. at CF0331.) Dr. Krisdakumtorn found the surgical area to be "less edamatous," although areas "just superior and anterior to the incision [were] hypersensitive to touch." (See id.) Fleming was able to "invert/evert without pain," although she still exhibited pain with peroneal testing. (See id.) Dr. Krisdakumtorn administered a steroid injection to Fleming. (See id.) His assessment was: "1. 3 months postop — with probable RSD vs nerve entrapment[,] 2. Ankle sprain[,] and 3. Foot sprain/Peroneal tendon injury[.]" (See id.)
On October 2, 2002, Fleming, in a telephone call, complained to Dr. Krisdakumtorn that her foot had swollen since the steroid injection and she could put no pressure on it. (See id. at CF0330.) At her appointment with Dr. Krisdakumtorn on October 30, 2002, Fleming informed him of a "strong allergic reaction to the area of her steroid injection which exacerbated her symptoms." (See id. at CF0329.) Dr. Krisdakumtorn examined Fleming's foot and ankle and found them "cool to the touch, clammy and red in color" and that, while Fleming was able to invert and evert her ankle without pain, "this [was] limited." (See id.) Dr. Krisdakumtorn again noted that the area near Fleming's incision was "hypersensitive to touch." (See id.) Dr. Krisdakumtorn "[s]uggested possible sympathetic nerve block vs local sclerosing tx of her sural nerve." (See id.) Dr. Kristdakumtorn again noted that Fleming had "probable RSD." (See id.) He referred Fleming to Dr. John Lu ("Dr. Lu"). (See id.)
In October 2002, Fleming attempted to transition to a full-time work schedule, but her pain and medication made it difficult to work even on a part-time basis. (See id. at CF0262.) Because of the medications and the pain, Fleming became "very frustrated over minor things with the person assigned to help [her], and was not able to deal with other people at work." (See id.) Going up or down stairs, traveling to company meetings, and driving to work caused her "severe pain" and she had difficulty concentrating as a result of both the pain medication and the pain itself. (See id.) After three months at work, "the pain, discomfort, and stress associated with [her] disability caused [her] to return to short-term disability status." (See id.)
Fleming was seen by Dr. Lu on November 6, 2002. (See id. at CF0326.) Dr. Lu is a fellow of the American Board of Physical Medicine and Rehabilitation and a Qualified Medical Examiner. (See id. at CF0493.) Fleming informed Dr. Lu that she was experiencing "left foot pain and tingling"; the pain was "constant" and of "[s]harp, electric quality" with a "[s]everity 7/10." (See id. at CF0327.) Fleming also reported sleep problems. (See id.) Dr. Lu observed "reddish discoloration" on Fleming's left foot and "minimal left antalgia." (See id.) Dr. Lu concluded that Fleming had "[s]evere left lateral ankle and foot hypersensitivity, probably due to complex regional pain syndrome/RSD" and allodynia in her "left lateral ankle." (See id.) Dr. Lu also diagnosed Fleming with neuralgia/neuritis and ankle joint pain. (See id. at CF0326.) To treat Fleming's pain, Dr. Lu prescribed Neurontin. (See id. at CF0328.)
Dr. Lu also recommended that Fleming undergo a "[t]hree phase bone scan" in order to "rule out left ankle RSD." (See id.) On November 11, 2002, Lawrence Basso, M.D. ("Dr. Basso"), of the Department of Nuclear Medicine at the Palo Alto Medical Foundation, conducted a "three-way bone scan" on Fleming's right and left ankles and feet. (See id. at CF0458.) Dr. Basso noted the following:
The blood flow and blood pool study of both ankles is normal; in fact, it is somewhat diminished in the left ankle and left foot. There is some low-grade uptake in the left ankle joint, consistent with an arthropathy, but there are no signs on this study of aseptic joint or osteomyelitis. The findings here may be all soft tissue rather than bony in nature. She does, however, have some degree of arthropathy of the left ankle joint, but it appears to be more chronic than acutely inflammatory in nature. Infection and/or osteomyelitis and/or aseptic joint seem unlikely in this setting.
(See id. at CF0458-59.) Dr. Lu noted in his records that the "three phase bone scan showed no signs of RSD." (See id. at CF0328.)
Fleming contacted Dr. Lu's office on November 15, 2002, and complained that Neurontin was causing her somnolence. (See id. at CF0325.) Fleming stated that she did not want to increase the dose, despite Dr. Lu's suggestion. (See id.)
Dr. Lu saw Fleming on November 22, 2002. (See id. at CF0322.) Fleming complained of "[c]onstant dull (sometimes sharp) burning (alternating with cold sensation) and stabbing left ankle and foot pain" with a severity of 8/10 which was "[a]ggravated by standing and walking." (See id.) Dr. Lu noted that "Neurontin caused increased fatigue" and that Fleming "experience[d] sleep problems and headaches." (See id. at CF0323.) Dr. Lu also found that Fleming suffered from "[s]evere left lateral ankle and foot hypersensitivity, probably due to complex regional pain syndrome/RSD" and that her "[t]reatment options [were] limited by adverse effects." (See id.)
On December 6, 2002, Fleming was examined again by Dr. Lu. (See id. at CF0316.) Fleming had essentially the same complaints regarding her left ankle and also reported an "[a]bnormal sensation of a `bubble' in the left heel." (See id.) She reported "some improvement in her overall symptoms." (See id.) Fleming "denie[d] sleep problems" and complained of headaches. (See id.) Fleming "declined sympathetic block." (See id. at CF0317.)
On December 13, 2002, Dr. Lu submitted a Physician Report to Kemper, in which he stated his diagnosis as "neuralgia/neuritis." (See id at CF0682.) Under "objective physical findings," he listed "low grade uptake in the left ankle joint consistent with an arthropathy." (See id. at CF0682.) Dr. Lu opined that Fleming could return to work full-time by April 15, 2003. (See id.)
On December 17, 2002, Fleming saw Anita Gupta, M.D. ("Dr. Gupta"), who became Fleming's primary care physician after Fleming's ankle surgery in June 2002. (See id. at CF0314;see also id. at CF0502.) The purpose of the visit was a "blood pressure follow-up." (See id. at CF0314.) Under "Assessment and Plan," Dr. Gupta noted that Fleming had hypertension and reflex sympathetic dystrophy. (See id. at CF0314.)
On January 22, 2003, Fleming again visited Dr. Lu regarding her left ankle and foot. (See id. at CF311.) She complained of "constant sharp[,] burning left ankle and foot pain," with a severity of 8/10, and which was "[a]ggravated by direct light touch, standing and walking." (See id.) Although she denied sleep problems, Fleming "report[ed] headaches." (See id. at CF0312.) Dr. Lu noted that Fleming was "in no apparent distress," but noted a "slight reddish discoloration" on her left foot and "[s]uperficial tenderness around the left Achilles tendon and lateral ankle." (See id. at CF0311.) At this visit, Dr. Lu decided to prescribe Neurontin again. (See id. at CF0312.) Dr. Lu again noted that Fleming was suffering from "[s]evere left lateral ankle and foot hypersensitivity, probably due to complex regional pain syndrome/RSD." (See id.)
On January 24, 2003, Dr. Lu sent a physician report to Kemper. (See id. at CF0432.) He stated his diagnosis as "neuralgia/neuritis, joint pain — ankle, and pain in limb." (See id.) He stated his "objective physical findings" as "severe [left] lateral ankle and foot hypersensitivity, probably due to complex regional pain syndrome/RSD" and "allodynia [left] lateral ankle." (See id.) He stated his opinion that Fleming was not able to work "full duty," that she was not able to work with restrictions, and that he could not say when she would be able to return to work "full-duty." (See id.)
On January 28, 2003, Dr. Lu provided another Physician Report to Kemper. (See id. at CF0431.) Dr. Lu's diagnosis was neuralgia/neuritis. (See id.) His objective physical findings were that Fleming had "constant sharp burning left ankle and foot pain[,] [a]ggravated by direct light touch, standing and walking." (See id.) According to Dr. Lu, Fleming could return to work full-time by April 15, 2003. (See id.) He did not indicate whether she was able to work with restrictions. (See id.)
Also on January 28, 2003, at Kemper's request, Gerald Goldberg, M.D. ("Dr. Goldberg"), a neurologist, provided Kemper with an opinion regarding Fleming's condition. (See id. at CF0740.) Dr. Goldberg stated that he formed his opinion based on "very minimal medical data." (See id.) Dr. Goldberg concluded: "Even if [Fleming] does have complex regional pain syndrome, the problem appears to be localized to the foot and this would not impair her ability to function in a sedentary position as a financial representative." (See id.)
On January 29, 2003, Dr. Gupta performed a physical examination of Fleming. (See id. at CF0307-08.) Dr. Gupta listed as one of Fleming's issues "RSD — left ankle pain since ankle surgery [in] 6/02." Dr. Gupta examined Fleming's left ankle and noted that it was "mildly edematous, erythematous and tender." (See id. at CF0309.) Dr. Gupta noted that Fleming "[d]id not allow more than a cursory exam of [her left ankle] due to pain." (See id.)
On February 11, 2003, Dr. Lu submitted another Physician Report to Kemper. (See id. at CF0685.) Under the heading "Objective Physical Findings," Dr. Lu listed "severe [left] lateral ankle/foot hypersensitivity; probably due to complex regional pain syndrome/RSD; allodynia [left] lateral ankle." (See id.) He reiterated his opinion that Fleming was not able to work "full duty," that she was not able to work with restrictions, and that he could not say when she would be able to return to work "full-duty." (See id.)
On February 12, 2003, Fleming contacted Dr. Lu's office to request that he "write a letter detailing her condition including the nerve damage," in order that Fleming could appeal Kemper's denial of disability benefits. (See id. at CF0307; see also discussion, infra, re: procedural history.) Fleming informed Dr. Lu that she needed the letter "ASAP because if she [did] not return to work as of February 15, 2003 she [would] be terminated." (See id.) Dr. Lu prepared a letter, but Fleming, on February 19, 2003, requested that Dr. Lu revise his letter "to include sitting [along] with walking and standing" among her impaired abilities. (See id. at CF0306.) Dr. Lu complied with the request and revised his letter. (See id.)
Dr. Lu's letter, dated February 12, 2003, states in its entirety:
Cynthia Lanetta Fleming has clinical signs of Complex Regional Pain Syndrome involving the left foot and ankle. This significantly impairs her ability to sit, stand and walk. In addition, the hypersensitivity of her left foot affects her concentration, sleep (and therefore energy level) and requires pain medication that affect[s] these as well. For that reason I consider her to be totally disabled.
(See id. at CF0733.)
On February 21, 2003, Dr. Lu responded to a request for additional information on Fleming's medical condition from the California Employment Development Department. (See id. at CF0418-19.) He listed his diagnosis as "neuralgia/neuritis[,]" "joint pain — ankle[,]" "pain in limb[,]" and "severe hypersensitivity and pain in left foot/ankle." (See id. at CF0419.) In Dr. Lu's opinion the "current estimated date" on which Fleming could perform her regular work was August 15, 2003. (See id.)
On March 7, 2003, Fleming saw Dr. Lu again regarding the pain in her left ankle. (See id. at CF0297.) Dr. Lu's primary diagnosis for this visit was reflex sympathetic dystrophy. (See id. at CF0298.) Fleming complained that every two hours she was experiencing sharp burning and stabbing pain in her left ankle and foot that would last for 30 minutes at a time. (See id.) Her pain was aggravated by sitting, standing and walking. (See id.) In addition, Fleming reported "sleep problems" and "headaches." (See id. at CF0299.) Dr. Lu noted that Fleming was "in no apparent distress," but that she had a "superficially tender lateral left foot and ankle" and a "reddish discolored left foot." (See id. at CF0298.) Dr. Lu noted that Fleming was using a "single point [cane] held in [her] left hand to support [her] left foot." (See id. at CF0298.)
On March 12, 2003, the California Department of Social Services sent Dr. Lu a request for medical evaluation of Fleming's limitations and capacities. (See id. at CF0412.) In the Medical Source Statement form provided, Dr. Lu estimated Fleming could sit no more than three hours in an eight-hour work day, and stated that she suffered from increased foot/ankle pain from prolonged sitting. (See id. at CF0415.) Dr. Lu also opined that Fleming could stand and walk for less than two hours in an eight hour workday, due to severe foot and ankle pain. (See id. at CF0415.) Dr. Lu described Fleming's prognosis as "fair to poor." (See id. at CF0416.)
On March 25, 2003, Robert Ennis, M.D. ("Dr. Ennis"), an orthopedic surgeon, prepared an evaluation of Fleming's medical condition for Kemper, based on medical reports provided to him by Kemper. (See id. at CF0233-34.) Dr. Ennis noted that "[t]he most recent physical examination of 01/22/03 indicate[d] that [Fleming's] left foot ha[d] slight reddish discoloration compared to the right with some superficial tenderness about the left Achilles tendon and an antalgic gait." (See id. at CF0234.) According to Dr. Ennis, however, "there [was] no indication that [Fleming] has a functional impairment that would impair her ability to return to sedentary type of work activity." (See id.) In addition, Dr. Ennis found "no indication of sleep [problems] or problems with mentation secondary to her medication that would prevent her from functioning at her own job activity." (See id.) Dr. Ennis concluded that "there is insufficient documentation in [Fleming's] records to substantiate a disability that would prevent her form working at her own sedentary work activity at the present time." (See id.)
On March 26, 2003, at Kemper's request, Dennis Mazal, M.D. ("Dr. Mazal"), a specialist in internal medicine and pulmonology, provided Kemper with another evaluation of Fleming's condition, based on his review of her medical records. (See id. at CF0236.) Dr. Mazal focused on Fleming's blood pressure problems and after reviewing the medical documentation provided to him by Kemper, concluded that although Fleming had hypertension, "there [was] no objective evidence in the medical records that would preclude [Fleming] from performing the essential duties of a senior financial analys[t] at Vodafone, based upon the diagnosis of hypertension." (See id. at CF0237.)
On March 26, 2003, Kemper requested and received an evaluation of Fleming's condition from Scott Berger, M.D. ("Dr. Berger"), a specialist in anesthesiology and pain management. (See id. at CF0239.) Dr. Berger also reviewed the medical records provided to him by Kemper and found that "[a]ppropriate documentation [was] present to substantiate the claimant having a diagnosis of Reflex Sympathetic Dystrophy and the significant pain that accompanies that illness." (See id. at CF0240.) According to Dr. Berger, however, Fleming's RSD "appeared to be contained, not spreading and did not require apparently even the aggressive treatment that is typically performed in RSD cases such as a lumbar sympathetic block." (See id.) As a result, Dr. Berger concluded that "there was no objective evidence to preclude [Fleming] from performing a sedentary position as a financial representative." (See id.)
On April 22, 2003, Amit Rajguru, M.D. ("Dr. Rajguru"), Diplomate of the American Board of Internal Medicine, examined Fleming at the request of the California Employment Development Department. (See id. at CF0504-07.) Dr. Rajguru observed that Fleming's left foot was "diffusely swollen" and "slightly erythematous throughout with loss of the normal muscle definition." (See id. at CF0504.) Fleming "had tenderness to palpation on very light touch over the dorsal and lateral aspects of her left foot; otherwise her extremities were within normal limits." (See id.) Dr. Rajguru noted that Fleming's "gait was short stepped and narrow based with weight bearing favored on the right foot." (See id.) During the examination, Fleming "supported her weight with objects in the examination room in order to perform gait testing." (See id.) Dr. Rajguru concluded that Fleming was "unable to return to work on the date of [his] examination" and was "likely to be unable to return to work due to the severe pain in her foot." (See id.) Dr. Rajguru opined that a "[r]epeat evaluation would be helpful in one year's time." (See id.)
On May 7, 2003, Fleming saw Dr. Lu concerning her left foot and ankle pain. (See id. at CF0293-94.) Fleming's physical complaints were essentially the same. (See id.) Fleming further complained of "disturbed sleep, waking up from foot pain[,] . . . low back pain [and] headaches." (See id.) Upon examining Fleming, Dr. Lu observed that Fleming's left foot had a "reddish discoloration compared with the right[,]" the "[s]kin was shiny with loss of skin markings[,]" and there were "coarse nail changes compared to the right side." (See id.) Dr. Lu decided to "[c]ontinue medication regimen," which included Neurontin, Catapres patch, Capsaicin, and Remeron, and noted that Fleming refused to take an increased Neurontin dose because she was experiencing fatigue at the current dose. (See id.)
On the same date, May 7, 2003, Dr. Lu sent a letter to Kemper in support of Fleming's claim for disability benefits. (See id. at CF0189.) In that letter, Dr. Lu stated:
This condition has significantly impaired her ability to sit, stand and walk. In addition, the hypersensitivity of her left foot affects her concentration, sleep (and therefore energy level). Finally, she requires regular pain medication that further affects concentration. Her most recent examination on 5/7/2003 shows sign of left foot atrophy. For these reasons, I consider her to be totally disabled.
(Id.)
On July 29, 2003, in response to a request from Fleming's attorney, Dr. Lu prepared a report on Fleming's condition in which he stated: "Pain and fatigue associated with her medical condition (probable complex regional pain syndrome involving the left lower leg) adversely affects her concentration, restricts standing time as well as walking distance." (See id. at CF0477.) According to Dr. Lu, this had an adverse effect on Fleming's "ability to work at her usual and customary job." (See id.) He stated that the main side effect of Fleming's pain medication, Neurontin, was "sedation, affecting concentration." (See id.) Dr. Lu stated he disagreed with Dr. Ennis's report because Dr. Ennis "drew his conclusions on the basis of orthopedic and neurologic data" and failed to take into account "the adverse effects that [Fleming's] medical condition and medications have on her concentration, energy level and ability to work." (See id.)
On August 6, 2003, David J. Gorman, M.S., C.R.C. ("Gorman"), a vocational consultant, prepared, at the request of Fleming's attorney, an evaluation of Fleming's "capacity for employment in her own occupation as a senior financial analyst." (See id. at CF0266.) Gorman reviewed "numerous reports from Palo Alto Medical Center including those of treating physician John D. Lu," the last of which was dated July 29, 2003. (See id.) Gorman also reviewed the medical evaluation report of Dr. Amit Rajguru and medical reports prepared by Drs. Goldberg, Berger, Ennis, and Mazal for Kemper. (See id.) He also interviewed Fleming over the telephone on August 5, 2003. (See id.) In order to formulate his conclusions, Gorman also consulted the Dictionary of Occupational Titles and the Department of Labor's Occupational Information Network ("O*Net"). (See id.)
Gorman noted that Fleming had been found eligible for state disability benefits and was pursuing eligibility for social security disability benefits. (See id.) After analogizing Fleming's job to that of an accountant, and summarizing the requirements for that position, Gorman stated his opinion that "[t]he Kemper doctor reports which consistently conclude Ms. Fleming is capable of sedentary work appear to be focused on a capacity for sitting without applying full consideration, as do Drs. Lu and Rajguru, to the impact of Ms. Fleming's injury on cognitive functioning necessary for success in day-to-day accounting work, particularly in a position with the considerable levels of responsibility Ms. Fleming had at Vodafone." (See id. at CF0271.) He noted that "[o]bjective medical evidence on the record" shows that Fleming is suffering from "headaches, sleeplessness, [and] need for medications whose side effects including drowsiness are well accepted." (See id.) Gorman concluded:
With consideration of the O*NET descriptive materials for the Accountant position, there is far greater clarification of the high to very high levels of mental functioning, apart from capacity for sedentary work, necessary for accounting and related work. It should be evident to the reasonable person that Ms. Fleming's pain, medication usage, loss of sleep and drowsiness, disruptive need for daily naps and for some hours per day of elevating her foot, additional to injury-associated physical limitations affecting sitting, walking, and standing, significantly compromise her capacity for performance of the essential and demanding requirements and responsibilities of an accountant functioning with the title senior financial analyst.
It is my conclusion therefore that, due to her medical condition and its sequelae, Ms. Fleming is not capable of resuming her own occupation as senior financial analyst, for Vodafone or with any other employer.
(See id. at CF0271-72.)
In a letter to Kemper dated September 16, 2003, Dr. Gupta stated that after Fleming's surgery in 2002, Fleming had been diagnosed with "Complex Regional Pain Syndrome, Reflex Sympathetic Dystrophy, Neuralgia, Neuritis, joint pain in her left ankle, and skin sensation disturbance." (See id. at CF0502.) Dr. Gupta stated that, in her initial examination of Ms. Fleming after that surgery, Dr. Gupta had "made the objective observation that [Fleming's] left ankle appeared abnormally discolored and sub-acutely swollen." (See id.) In addition, Fleming had "a pain response when [Dr. Gupta] attempt[ed] to touch her ankle." (See id.) Dr. Gupta listed "neuropathy in the left ankle and insomnia due to chronic pain" as Fleming's chief complaints after the ankle surgery. (See id.) Dr. Gupta agreed with Dr. Lu's diagnosis of Fleming's condition and concluded, based on her observation of Fleming's swelling and pain, that Fleming was disabled because she was "currently unable to engage in her occupation, as she cannot tolerate the physical and mental requirements of being a senior financial analyst." (See id.)
As of September 18, 2003, Fleming's "days [were] filled with pain." (See id. at CF0263.) Every day her foot would "swell" if she stood, sat, or walked for extended periods of time and, due to the swelling, she was unable to wear shoes "that ma[d]e any contact with the area surrounding the surgical incision." (See id.) Any "bumping or touching" created "sharp pain" that radiated throughout her foot and leg; she was unable to sleep more than three or four hours a night because "if the covers touch[ed] [her] foot, the pain [would] awaken [her]." (See id.) Any activity that caused contact with her foot, would cause her extreme pain. (See id.) When she awoke in the morning, her foot would feel pain-free for five or ten minutes "before the blood circulate[d] to [her] foot[,] causing a hot, warm, burning feeling." (See id.) She had to elevate her foot to "get rid of this burning feeling" and she had to "spend four to five hours [a day] elevating [her] foot." (See id.)
Further, Fleming's medications "ma[d]e it impossible to concentrate." (See id.) Although she used to read avidly, she could no longer read or comprehend detailed materials, and it took her a full day just to read the newspaper. (See id.) She dropped out of her book club, because she could no longer read enough of the books to be able to participate in the meetings. (See id.) She was taking Neurontin at noon each day, and then felt "so drowsy that [she] [could not] do anything" and had to "sleep for a couple of hours each afternoon as a result." (See id.) The drugs Fleming was taking made her drowsy and she could not "imagine how it would be possible to balance Vodafone's books when [she] [could not] read for longer than half an hour without stopping to rest, refocus, and elevate [her] leg for an extended period of time." (See id.) Fleming believes "[t]he mind altering effect of these drugs prevents [her] from returning to work even though [she] would love to continue doing financial work." (See id.)
In a report prepared for Kemper on October 7, 2003, based on Fleming's medical records and information she submitted on appeal, Vaughn D. Cohan, M.D. ("Dr. Cohan"), a neurologist, stated:
With respect to the claimant's complaints of cognitive impairment, it is noted that there are no such references in the reports from claimant's treating physicians during the course of her frequent followup visits. This self reported complaint appears only in connection with her claim for disability benefits. The claimant's medical records do not reflect independent objective observation of any of the stated cognitive complaints. Although her doctors have echoed her self reported symptoms in their letters of support for her appeal, nevertheless, one does not find evidence of confrontational mental status testing, mini mental status exam testing, or formal neurocognitive testing in the medical records submitted for review. The absence of that information precludes a determination of cognitive functional impairment such that the claimant would be unable to return to her own occupation.
The claimant's report of lack of endurance for sitting, standing and/or walking, is also unsupported by the physical exam findings recorded in the medical records submitted for review at this time. Once again, these are self-reports in connection with the claimant's appeal for disability benefits. Although these complaints are echoed in the correspondence from treating physicians who have supported her appeal for benefits, nevertheless, the medical records do not reflect evidence of objective physical exam findings consistent with those complaints. One does not find objective evidence of functional impairment which would preclude the claimant from performing a sedentary (primarily seated) job. There is no confirmation of lack of endurance for remaining seated during the course of an 8-hour workday given the opportunities to change position and change posture as would be typical of a sedentary job.
(See id. at CF0197-98.) Dr. Cohan also noted that although Fleming's medications are known to cause drowsiness, the drugs are used "quite commonly," "do not typically interfere with the performance of normal daily activities including cognition" and, where they do cause such problems, "one would suggest a modification of the prescribed dosages." (See id. at CF0199.) "In summary," Dr. Cohan concluded: "[W]hile the claimant does appear to have complex regional pain syndrome which has been only partially responsive to treatment, nevertheless the documentation submitted for review does not demonstrate objective evidence of a functional impairment of sufficient severity and/or intensity as to preclude the claimant from returning to her own occupation as of 1/23/03." (See id.)
C. Procedural History
1. Claim for STD Benefits
On November 22, 2002, Fleming submitted a claim for short-term disability benefits, claiming disability as of November 25, 2002. (See id. at CF0025.) On December 16, 2002, Fleming's claim was approved and she was awarded benefits for the period of November 25, 2002 through January 22, 2003 under the STD plan. (See id. at CF0036.)
In a letter dated February 10, 2003, Kemper terminated Fleming's STD benefits, effective January 23, 2003. (See id. at CF0687.) The benefits were terminated on the ground that the medical evidence Fleming submitted did not support her claim that she was "unable to perform the essential functions of [her] job as a Financial Representative." (See id.) Kemper informed Fleming that she was entitled to file an appeal within 60 days, and that Kemper would render a decision within 60 days of its receipt of the appeal. (See id. at CF0687-88.)
On February 7, 2003, Fleming filed an administrative appeal of Kemper's termination of STD benefits. (See id. at CF0123.) On April 3, 2003, Kemper denied Fleming's appeal, stating that "the medical documentation submitted, does not reveal a functional impairment that would precluded [sic] you from performing the essential duties of your job, as a Financial Analyst." (See id. at CF0254.) Kemper informed Fleming that she could request reconsideration, within 60 days, and that if she chose to do so, Kemper would render a decision within 45 days. (See id. at CF0256.) Kemper further informed Fleming that if its decision remained "unchanged at the completion of the review process," Fleming was entitled to file suit under ERISA § 502(a). (See id.)
On June 11, 2003, Fleming sought reconsideration of Kemper's termination of her STD benefits. (See id. at CF0186.) Thereafter, Fleming retained counsel, who requested an extension of time, until September 29, 2003, to supplement her appeal. (See id. at CF0191.) By letter dated July 31, 2003, Kemper agreed to the extension of time, and requested that Fleming submit, by September 29, 2003, any additional documentation she wished Kemper to consider. (See id. at CF0244.) Kemper stated that it would render a determination on or before November 11, 2003. (See id.) To date, Kemper has not provided Fleming with a decision on her appeal.
2. Claim for LTD Benefits
On March 9, 2003, Fleming submitted a claim for LTD benefits. (See id. at CF859.) By letter dated April 21, 2003, Kemper denied Fleming's claim for LTD benefits, on the ground that Fleming had not completed the Benefit Qualifying Period for eligibility for LTD benefits. (See id. at CF954.)
Thereafter, Fleming retained counsel, and on September 26, 2003, submitted an administrative appeal of both the termination of her STD benefits and the denial of her LTD benefits. (See id. at CF0200.)
By letter dated October 16, 2003, Kemper forwarded an "appeal summary" to Rose Santos at Vodafone for review. (See CF0105-6.) To date, Kemper has not issued a decision on Fleming's appeal.
3. The Instant Action
On November 19, 2003, eight days after the November 11, 2003 deadline by which Kemper promised to rule on Fleming's appeal, Fleming filed the instant action. Fleming asserts a claim for STD and LTD benefits, pursuant to ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B).
Thereafter, on January 26, 2004, Kemper moved to dismiss the action, on the ground that Fleming had failed to exhaust her administrative remedies. In an order filed March 2, 2004, the Court denied the motion, holding that the Department of Labor ("Department") intended that ERISA plans comply with the 45-day time limit for deciding disability benefit appeals set forth at 29 C.F.R. § 2560.503-1(i), and to permit a claimant to file suit if the plan failed to rule within that time. (See Order Denying Motion to Dismiss, filed March 2, 2004.) The Court recognized that the Department has stated that "inadvertent deviat[ions]" from the claims procedures set forth in its regulations might be excused if "the plan's procedures provide an opportunity to effectively remedy the inadvertent deviation without prejudice to the claimant." (See id. at 8-9 (quoting Department's "Frequently Asked Questions About the Benefit Claims Procedure Regulation," posted on the Internet athttp://www.dol.gov/ebsa/faqs/faq_claims_proc_reg.html)). The Court held, however, that "[w]hether defendants' failure to process Fleming's appeal in a timely manner was `inadvertent,' and whether any such deviation was `without prejudice' to Fleming, are questions of fact not susceptible to determination on a motion to dismiss." (See id. at 9.)
On April 5, 2004, Fleming filed a motion for summary adjudication with respect to the appropriate standard of review. On May 7, 2004, the Court granted Fleming's motion, holding that it would apply de novo review to her claims for benefits under the STD and LTD plans. (See Order Granting Plaintiff's Motion for Summary Adjudication, filed May 7, 2004.) The Court stated that, based solely on the language of the plans, the Court ordinarily would review a denial of benefits under the STD plande novo, and would review a denial of benefits under the LTD plan under the abuse of discretion standard. (See id. at 6.) Because Kemper never responded to Fleming's appeal of its denial of benefits under the LTD plan, however, the Court found that there was no decision to which the Court could defer. See id. at 6-7. The Court relied on a Ninth Circuit decision holding that when a plan fails to meet the deadline for issuing a decision on the claimant's request for review, and there is no evidence that the plan administrator was engaged in a good faith attempt to comply with the deadline when it lapsed, de novo review is required. See id. at 7 (citing Jebian v. Hewlett-Packard Company Employee Benefits Organization Income Protection Plan, 349 F.3d 1098, 1103 (9th Cir. 2003)). Because Kemper submitted no evidence as to the reasons for the delay in processing Fleming's appeal, and had not yet issued a decision on her appeal, the Court found there is no evidence of a good faith attempt to comply. See id. at 7. The Court concluded that "even though the LTD Plan grants discretionary authority to the plan administrator, defendants' complete failure to address Fleming's request for review requires the Court to apply de novo review." See id. at 8.
On October 22, 2004, Fleming filed a motion for summary judgment on the merits of her claim; Kemper filed a cross-motion for summary judgment on October 29, 2004. On December 7, 2004, the Court issued an order denying Fleming's motion for summary judgment in its entirety, and granting in part and denying in part Kemper's motion for summary judgment. (See Order Denying Plaintiff's Motion for Summary Judgment; Granting in Part and Denying in Part Defendants' Motion for Summary Judgment, filed Dec. 7, 2004 ("Summary Judgment Order").) The Court granted Kemper's motion on the issue of its entitlement to reduce Fleming's STD and LTD benefits by the amount of state disability benefits she received during any period for which she was also entitled to STD or LTD benefits, and on the issue of its entitlement to reduce Fleming's LTD benefits by the amount of any Social Security benefits she received during any period for which she was entitled to LTD benefits. (See id. at 29-30.) In all other respects, the Court denied Kemper's motion for summary judgment. (See id.)
On January 13, 2005, the Court held a pretrial conference. The Court reiterated its prior decision to include the October 7, 2003 report of Dr. Cohan in the administrative record, but offered to remand the matter if Fleming wished to present new evidence to rebut Dr. Cohan's conclusions; Fleming declined the offer. The Court took under submission Fleming's request for judicial notice of a recent decision by the Social Security Administration ("SSA"), issued December 28, 2004, in which the ALJ found that Fleming is disabled and entitled to Social Security disability benefits. (See Request for Judicial Notice, filed January 10, 2005, ("RJN") Ex. A.) Fleming stated that if the Court were inclined to remand the matter to afford defendants an opportunity to consider the SSA's decision, Fleming would prefer to exclude the decision and have the case remain in this Court. Finally, the Court afforded the parties the opportunity to file simultaneous trial briefs and simultaneous responses to the opposing parties' trial briefs in lieu of oral argument.
The parties have timely filed their trial briefs and responses to the opposing party's trial brief.
DISCUSSION
A. Standard of Review
Under ERISA, a plan participant or beneficiary may 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[.]" See 29 U.S.C. § 1132(a)(1)(B). The Supreme Court has held that a "denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." See Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). As noted, the Court previously has determined that the de novo standard of review applies in the instant action.
In conducting a trial de novo, the Court generally reviews only the materials submitted as part of the administrative record, but is permitted to "evaluate the persuasiveness of conflicting testimony and decide which is more likely true."See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999) (en banc). The plaintiff at all the times has the burden of proving that she is disabled under the terms of the policy. See, e.g., Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273-74 (5th Cir. 2005); Brigham v. Sun Life of Canada, 317 F.3d 72, 85 (1st Cir. 2003); Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (2nd Cir. 1995).
In determining whether a plaintiff is entitled to ERISA disability benefits, "a treating physician's opinion gets no special weight." See Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 879 (9th Cir. 2003). The district court may, however, "in conducting its independent evaluation of the evidence in the administrative record, take cognizance of the fact (if it is a fact in the particular case) that a given treating physician has a greater opportunity to know and observe the patient that a physician retained by the plan administrator. See Jebian, 349 F.3d at 1109 n. 8 (internal quotation omitted).
The Ninth Circuit has stressed that the fact "[t]hat a person has a true medical diagnosis does not by itself establish disability." See Jordan, 370 F.3d at 880. Rather, the evidence also must establish that the plaintiff's medical condition prevents her from working. See id.
B. Request For Judicial Notice
As noted, Fleming requests that the Court take judicial notice of an ALJ's decision, issued December 28, 2004, in which the ALJ found that Fleming is disabled and entitled to Social Security disability benefits. (See Request for Judicial Notice, filed January 10, 2005, ("RJN") Ex. A.)
At trial, the Court generally considers only "`the evidence that was before the plan administrator . . . at the time of the determination.'" See Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir. 1995) (quoting Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1025 (4th Cir. 1993)); see also Kearney, 175 F.3d at 1090-91, 1094-95. As discussed, the Court previously has found that, although there was no final determination of Fleming's claim, as Kemper never issued a decision on Fleming's final appeal, the Court will consider all evidence that was before the plan administrator as of November 11, 2003, the date by which Kemper promised to issue a decision.
The Court may admit additional evidence "`only when circumstances clearly establish that additional evidence is necessary to conduct an adequate de novo review of the benefit decision.'" See Mongeluzo, 46 F.3d at 944. "[A] district court should not take additional evidence merely because someone at a later time comes up with new evidence that was not presented to the plan administrator." Id. As Fleming does not argue that review of the social security decision is "necessary to conduct an adequate de novo review of the benefit decision," see Mongeluzo, 46 F.3d at 944, the Court declines to consider the decision.
The Court further notes that even if it were to consider the ALJ's decision, plaintiff concedes that a finding of disability by the Social Security Administration is not binding on the Court. See RJN at 1 (citing Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279, 1286 (9th Cir. 1990)).
Moreover, Fleming has not demonstrated that the evidence considered by the ALJ is part of the administrative record before this Court. In particular, the Court notes that the ALJ held a hearing at which Fleming and a vocational expert, Malcolm Brodzinsky, testified, none of which testimony is part of the record herein. (See RJN Ex. A at 1.) In addition, various state agency disability determinations, "disability reports," psychiatric records, and a residual functional capacity assessment, all of which are listed as part of the record before the ALJ, do not appear to be part of the record before this Court. (See RJN Ex. A, List of Exhibits, 1A, 2A, 2E, 4E-7E, 9E-11E, 4F, 7F, 8F.) Further, none of the reports from Kemper's consulting physicians appear in the record before the ALJ. Consequently, the Court agrees with Kemper that consideration of the social security decision would be like comparing "apples to oranges." (See Def's Trial Brief at 14).
For these reasons, the Court DENIES Fleming's Request for Judicial Notice.
C. The Merits
1. Plan Language
The description of the STD and LTD plans is contained in a single document titled "Disability Benefits." (See Penrose Decl., filed Oct. 29, 2004, Ex. A ("Policy").)
a. The STD plan
The STD plan provides for 180 days of disability benefits, the first 90 days at 100% of salary, and the second 90 days at 60% of salary. (See id. at P0414.) Under the STD plan, "[a] disability is generally defined as any medically determinable physical or mental condition arising from an illness, pregnancy, or injury that prevents [the insured] from performing the essential duties of [the insured's] job with a Participating Company or the responsibilities of any reasonably related occupation to which [the insured] might be assigned[.]" (See id. at P0416.) "Documentation, including physician certification and objective medical evidence to support the disability, is required[.]" (See id.)
b. The LTD plan
A claimant is eligible to apply for disability benefits under the LTD plan upon the occurrence of the last of the following: the termination of benefits under any "salary continuation or short term disability benefits plan," the exhaustion of sick leave days, or 180 days of disability. (See id. at P0424.) The LTD plan pays benefits at 60% of the insured's basic earnings, from a minimum of $100 to a maximum of $30,000 per month, until age 65 if the insured is under age 63 at the time of disability. (See id. at P0414, P0424.) A claimant is disabled under the LTD plan if:
[A] significant change in [the claimant's] physical or mental condition due to:
1. Accidental bodily injury;
2. Sickness;
3. Mental Illness;
4. Substance Abuse; or
5. Pregnancy,
began on or after [the claimant's] Coverage Effective Date and has caused [the claimant's] inability to perform, during the Benefit Qualifying Period and the following 24 months, the Essential Functions of [the claimant's] Regular Occupation or of a Reasonable Employment Option offered to [the claimant] by the Company, and as a result [the claimant is] unable to earn more than 80% of [the claimant's] Pre-disability Monthly Income.
(See id. at P0424.) A claimant must provide unspecified "proof that [the claimant] is unable to work due to sickness or injury." (See id. at P0427.) In order to receive disability benefits under the LTD plan, a claimant also must be under the "Regular and Appropriate Care of a Physician for [the claimant's] disability." (See id. at P0428.)
2. Analysis
The parties dispute whether Fleming's injury precludes her from working and thus causes her to be disabled within the meaning of the STD and LTD plans. As Fleming received benefits through January 23, 2003 (see Admin. Record at CF0036, CF0687), the issue before the Court is whether Fleming was disabled on or after that date.
At summary judgment, defendant argued that, in order to obtain benefits under the STD and LTD Plans, Fleming was required to submit "objective medical evidence to support the [claim of] disability," (see Penrose Decl. Ex. A at P0416), and that she has not done so. Fleming argued that "objective medical evidence" is required only with respect to claims for benefits under the STD Plan and that no such requirement applies to claims for benefits under the LTD Plan. (See Penrose Decl. Ex. A at P0427 (requiring that claimants for LTD benefits submit "proof that you are unable to work due to sickness or injury.") In the Court's summary judgment order, the Court assumed, arguendo, that Fleming was required to submit such "objective medical evidence" with respect to claims under both plans, and found that she had done so because the medical record demonstrates that Fleming suffered an ankle injury that required surgery, and that thereafter her ankle continued to exhibit objectively verifiable abnormalities such as swelling, discoloration, temperature changes, and sensitivity to touch. (See Summary Judgment Order at 27.) The Court notes that Kemper's own consulting physicians recognize that Fleming suffers from RSD. (See Admin. Record at CF0240 (March 26, 2003 report of Dr. Berger); CF0199 (Oct. 6, 2003 report of Dr. Cohan). The Court concludes that Fleming has submitted objective medical evidence to support her claim of disability.
The remaining question is whether Fleming's medical condition precludes her from working. The medical evidence on the issue of whether Fleming is disabled because of her medical condition is in dispute. In late January and early February 2003, Dr. Lu repeatedly opined, in reports to Kemper, that Fleming was unable to work. (See id. at CF0733, CF0189, CF0431, CF0432, CF0685.) During the same time period, Kemper's consulting physician, Dr. Goldberg, opined that Fleming's foot pain would not impair her ability to function in her sedentary position as a financial representative. (See id. at CF0740.) Thereafter, Fleming's treating physicians have consistently stated that she is unable to work, while Kemper's consulting physicians have consistently stated that she is able to return to her position as a financial analyst. (See, e.g., id. at CF0415-16, CF0233-34, CF0236-37, CF0240, CF05040-7, CF0477, CF0502, CF197-99.)
In the Court's view, Kemper's experts have focused overly on Fleming's physical limitations and have given short shrift to the effects of Fleming's pain and her pain medications on her ability to successfully function as a financial analyst. As noted, Fleming's work requires a high level of mental ability. If one assumes, arguendo, that she has the physical capacity to commute to work and to sit at her desk, there is still the question of whether the amount of pain she suffers, or, alternatively, the effects of her pain medication, impair her mental functioning to the point that she cannot successfully focus on and adequately perform her work.
In that regard, as an initial matter, the Court notes that Fleming's statements about her symptoms, and her doctors' statements about her condition, have not changed materially over time. In other words, this is not a case in which the claimant has improved significantly during the course of her treatment. The Court recognizes that there have been occasional inconsistencies in the record. Nonetheless, in general, both Fleming and her doctors have reported her condition to be stable and unchanging from the point at which she recovered from the immediate effects of the surgery up to the date of her termination and thereafter through the date on which the administrative record concludes. Accordingly, contrary to Kemper's suggestion, the Court will not restrict its inquiry to the period following Kemper's termination of Fleming's benefits, but rather will consider the entirety of the record, and, specifically, evidence of Fleming's condition both before and after January 23, 2003, as relevant in determining whether she has been disabled from working after that date.
For example, Dr. Lu provided Kemper with a physician's report on January 24, 2003 in which he stated that Fleming was not able to work and that he could not say when she would be able to return to work, yet provided a separate report only four days later, on January 28, 2003, in which he opined that Fleming could return to work by April 15, 2003. (Compare Admin. Record at CF0432 with CF0431.) There was no indication that Fleming's condition had improved, however, and on February 11, 2003, Dr. Lu submitted another physician's report to Kemper in which he again stated that Fleming could not work and that he could not predict when she would be able to return to work. (See CF0685.)
Fleming has consistently complained of constant severe and disabling pain. (See, e.g., id. at CF0327 (Nov. 6, 2002 appointment with Dr. Lu), CF0311 (Jan. 22, 2003 appointment with Dr. Lu), CF0309 (Jan. 29, 2003 appointment with Dr. Gupta), CF0298 (March 7, 2003 appointment with Dr. Lu), CF0504 (April 23, 2003 appointment with Dr. Rajguru), CF0293-94 (May 7, 2003 appointment with Dr. Lu), CF0263 (September 18, 2003 declaration by Fleming).) As Fleming's physicians were in a position to observe both her physical condition and her demeanor, the Court assumes that if those physicians had any doubts that Fleming was actually suffering the pain she reported, such doubts would be reflected in her medical records. Nothing in the record suggests that Fleming's doctors have ever questioned the existence of her pain or of her reported degree of severity of the pain. Indeed, nothing in the record suggests that any doctor or health care provider retained by Kemper has done so. Accordingly, the Court finds that Fleming was in fact suffering the degree of pain she reports in the medical records and in her declarations.
Fleming's physicians prescribed numerous medications and treatments for her pain, none of which successfully ameliorated the pain. In a July 16, 2002 visit with Dr. Krisdakumtorn, when Fleming reported that Elavil was making her "loopy," Dr. Krisdakumtorn prescribed Neurontin. (See id. at CF0372.) As the record reflects that Fleming has continued to take Neurontin, one can assume that it was at least partially effective at reducing her pain, but the record also indicates that Neurontin caused increased fatigue, (see, e.g., id. at CF0323, CF0325), and, consequently, Fleming declined to increase her dosage of Neurontin (see id. at CF0325, CF0294). Although Fleming initially found some relief with electrical stimulation administered by means of a TENS unit, (see id. at CF0370), she was later found to be allergic to the pads used with the TENS unit, (see id. at CF0323.) At a September 27, 2002 visit with Dr. Krisdakumtorn, he administered a steroid injection (see id. at CF0331), which exacerbated Fleming's symptoms by causing her foot to swell to the point where she could put no weight on it, (see id. at CF0330, CF0327). Fleming completed a course of physical therapy without eliminating her pain. (See id. at CF0128.) Use of a Lidoderm patch was found to be ineffective. (See id. at CF0328, CF0325.) Capsaicin cream was prescribed (see id. at CF0324), but was found to be only partially beneficial, (see id. at CF0317). Dr. Lu did recommend that Fleming receive a lumbar sympathetic block, which Fleming declined. (See id. at CF0317.) In light of the failure of Fleming's surgery to cure her ankle problem, however, as well as her prior adverse reaction to cortisone injections, the Court does not find Fleming's decision unreasonable. (See id. at CF0267 (noting that Fleming "declined to undergo a sympathetic block procedure because she was uncomfortable with the risks and wishe[d] to avoid any more significant invasive treatments, which [had] not gone well for her foot condition to date").
The Court notes the administrative record includes a document containing information about Neurontin, which identifies "somnolence" and "dizziness" as potential side effects. (See CF0519.)
By December 6, 2002, Dr. Lu noted that Fleming's treatment options were limited by adverse effects. (See id. at CF0317.) Fleming thereafter tried acupuncture, at Dr. Lu's suggestion, (see id. at CF0317, CF0313), and found it only "somewhat beneficial" (see id. at CF0312). The record thus indicates that treatment for Fleming's pain was only partially successful and that one of the few even partially successful medications, Neurontin, caused Fleming to experience such sleepiness that she would not consider increasing her dosage of that medication. Consequently, even with treatment, Fleming was left drowsy and in pain. (See id. at CF0262-63.)
The reports of Drs. Goldberg and Ennis, two of Kemper's consulting physicians, focused largely on Fleming's ability to sit, and, after finding that Fleming was capable of sitting, concluded that she was not precluded from performing her sedentary job as a financial analyst. (See id. at CF0740 (Jan. 28, 2003 report of Dr. Goldberg), CF0234 (March 27, 2003 report of Dr. Ennis). The Court finds the reports of Drs. Goldberg and Ennis to be unpersuasive in that neither doctor had an opportunity to examine Fleming, and their opinions fail to adequately take into account the limitations caused by Fleming's pain and the effect on her cognitive abilities caused by her pain medication. Although Dr. Ennis also found "no evidence of sleep or problems with mentation secondary to her medication that would prevent her from functioning at her own job activity," (see CF0234), the record, as noted, is to the contrary.
The Court finds unpersuasive the opinion of Kemper's consulting physician, Dr. Berger, that Fleming's RSD was contained and did not require aggressive treatment, (see id. at CF0240). As set forth above, Fleming received a wide variety of treatments, the most successful of which only partly alleviated her pain. Although Dr. Berger points out Fleming's decision not to receive a lumbar sympathetic block, the Court, as noted above, does not find that decision unreasonable in light of Fleming's prior lack of success with invasive treatments. The Court is aware of no authority requiring an injured patient to exhaust all possible treatments before such patient can be found to be disabled and entitled to disability benefits. Moreover, nothing in the record, including Dr. Berger's report, suggests that Fleming rejected a treatment that was likely to cure her.
Dr. Cohan's opinion that the absence in the record of "confrontational mental status testing, mini mental status exam testing, or formal neurocognitive testing" precludes a finding that Fleming cannot work, (see id. at CF0197), is overly pedantic and, as such, unpersuasive. Dr. Cohan did not examine Fleming and thus is not in a position to contest the findings of Drs. Lu, Rajguru, and Gupta which, as noted, are based on their personal observation of Fleming's condition. It does not take extensive testing to conclude that a person who is in severe pain and suffers from drowsiness due to medication cannot perform at the mental level required of a financial analyst.
The Court further finds unpersuasive Dr. Cohan's suggestion, (See id. at CF0199), that Fleming's mental impairment could be reduced by modifying the dosage of her medication. Dr. Cohan concedes that Neurontin may cause drowsiness. (See id.) Dr. Lu repeatedly recommended that Fleming increase her dosage of Neurontin, presumably to enhance its analgesic effect, but Fleming declined because the drug was making her too drowsy at the current, lower dosage. (See, e.g., id. at CF0325.) Thus, Fleming was already experiencing drowsiness at a dosage that did not eliminate her pain; nothing in the record suggests that Fleming would become less drowsy if she increased her dosage of Neurontin. Similarly, nothing in the record suggests that reducing the dosage of Neurontin would both reduce her drowsiness and remain as effective at reducing Fleming's pain.
All of the doctors who have examined Fleming, and who have opined as to whether she is disabled, agree that she is disabled from working as a result of the pain caused by RSD and the side effects of Fleming's pain medication. (See id. at CF0733 (Feb. 12, 2003 letter from Dr. Lu); CF0504 (April 22, 2003 report of Dr. Rajguru), CF0189 (May 7, 2003 letter of Dr. Lu); CF0477 (July 29, 2003 report of Dr. Lu); CF0502 (September 16, 2003 report of Dr. Gupta). Kemper argues that Fleming's doctors fail to explain how her medical condition precludes her from working and, in particular, what particular aspects of her job she is unable to perform. As noted, Fleming worked as a financial analyst, a position that requires a keen mind and attention to detail. The record reflects that Dr. Lu, Dr. Rajguru, and Dr. Gupta were aware of the nature of Fleming's employment. (See id. at CF0327, CF0504, CF0502.) Having examined Fleming and, in the case of Drs. Lu and Gupta, treated her, each of these doctors was in a position to observe the manifestations of Fleming's pain, to evaluate her reports of pain as well as the side effects of her medication, and to determine the extent to which both her pain and the treatment for that pain limited her ability to function. It does not require extensive knowledge of each and every task involved in Fleming's work for medical professionals to conclude that she was unable to perform the duties of her profession as a financial analyst because of her severe pain and drowsiness.
The Ninth Circuit's opinion in Jordan, relied on by Kemper, is distinguishable in several respects. Although, inJordan, the Court of Appeals held that the plan at issue therein did not abuse its discretion by denying benefits where the plaintiff's doctors failed to explain how her medical condition impaired her ability to work, the Court of Appeals also noted that reasonable people could disagree as to whether she was disabled. See Jordan, 370 F.3d at 877-78, 880-81. Here, by contrast, the Court is applying de novo review rather than determining whether Kemper abused its discretion. Second, the disease at issue in Jordan was fibromyalgia, a disease that "cannot be objectively proved." See id. at 877. Here, by contrast, Fleming suffers from a condition that has numerous objective manifestations. Third, there is no indication inJordan that the claimant's work presented the same type of demands as presented by Fleming's position. Finally, while there was no medical evidence in Jordan as to how the plaintiff was limited in her ability to perform her work, here, the record contains letters from several doctors explaining why Fleming cannot perform her work, as well as a vocational expert report explaining in detail why Fleming's pain and cognitive impairment prevent her from performing her job as a financial analyst.
To the extent any doubts are raised by the failure of Fleming's doctors to specifically address the tasks that Fleming is unable to perform, Gorman's unrebutted August 6, 2003 vocational report, in which he set forth the requirements of Fleming's position in detail, and discusses how Fleming's limitations would impact her ability to perform the requirements of her position, puts those doubts to rest. (See id. at CF0266-72.) The Court agrees with Gorman's conclusion that "[i]t should be evident to the reasonable person that Ms. Fleming's pain, medication usage, loss of sleep and drowsiness, disruptive need for daily naps and for some hours per day of elevating her foot, additional to injury-associated physical limitations affecting sitting walking and standing, significantly compromise her capacity for performance of the essential and demanding requirements and responsibilities of an accountant functioning with the title senior financial analyst." (See id. at CF0272.)
Accordingly, the Court finds persuasive the opinions of Fleming's doctors and her vocational expert and concludes that Fleming is disabled under the terms of the STD plan and entitled to disability benefits under the STD plan as of January 22, 2003, the date Kemper terminated her benefits.
The Court further concludes that Fleming is disabled under the terms of the LTD plan. Under the policy, Fleming is entitled to LTD benefits only upon the expiration of her STD benefits. (See Policy at P0424.) The STD plan provides for 180 days of benefits. (See id. at P0414.) The record shows that Fleming first received STD benefits as of November 25, 2002. (See Admin. Record at CF0036.) Accordingly, Fleming is entitled to LTD benefits as of May 24, 2003, which is 180 days after November 25, 2002, the date Fleming first received STD benefits.
The Court notes that after the first 24 months of LTD disability benefits, the requirements for benefits under the LTD plan change. After the insured's receipt of 24 months of disability benefits, the LTD plan provides for further benefits only if the insured is "prevented from performing the Essential Functions of any Gainful Occupation that [her] training, education and experience would allow [her] to perform." (See Policy at P0424.) The Court expresses no opinion as to Fleming's entitlement to benefits after the first 24 months of disability,i.e., after May 24, 2005, in that the issue is not raised in the complaint and the record contains no evidence or argument as to whether Fleming's condition has improved or as to whether Fleming could perform a less mentally taxing job. Similarly, the Court declines to address Kemper's suggestion that, as a matter of law, Fleming cannot recover LTD benefits for more than 24 months because the policy limits benefits to a lifetime total of 24 months for "mental illness" and "self-reported conditions." (See Policy at P0423, P0425.) Again, the issue has not been raised by the pleadings, and has not been addressed by Fleming in her evidence or argument herein.
Finally, pursuant to the Court's summary judgment order, the Court reiterates that Kemper may offset the amount of Fleming's STD and LTD benefits by the amount of state disability benefits she received during any period for which she was also entitled to STD or LTD benefits, and may offset Fleming's LTD benefits by the amount of any Social Security benefits she received during any period for which she was entitled to LTD benefits. (See Summary Judgment Order at 28-30.)
CONCLUSION
For the reasons set forth above, it is HEREBY ORDERED that:
1. Fleming's request for judicial notice is DENIED.
2. Fleming is entitled to disability benefits under the STD plan as of January 23, 2003.
3. Fleming is entitled to disability benefits under the LTD plan as of May 24, 2003, without prejudice to defendants' future exercise of their rights under said plan.
4. Defendants are entitled to offset the amount of Fleming's STD and LTD benefits by the amount of state disability benefits she received during any period for which she was also entitled to STD or LTD benefits, and to offset Fleming's LTD benefits by the amount of any Social Security benefits she received during any period for which she was entitled to LTD benefits.
5. Fleming's request for prejudgment interest shall be made by motion filed within 14 days of entry of judgment.
6. Fleming's requests for costs and attorney's fees shall be filed in conformity with Civil Local Rules 54-1 and 54-6, respectively.
The Clerk shall close the file.
IT IS SO ORDERED.