Opinion
CASE NO. SA CV 19-04100-DOC-(SKx)
12-10-2020
YOLANDA RIOS, Plaintiff, v. UNUM LIFE INSURANCE COMPANY ET AL, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW, TRIAL ORDER and JUDGMENT INTRODUCTION
The parties filed Trial Briefs and Responses in this matter on July 13, 2020 and August 10, 2020, respectively.
This is a review, under the Employee Retirement Income Security Act ("ERISA"), of Defendant Unum Life Insurance Company's ("Defendant") denial of Plaintiff Yolanda Rios' ("Plaintiff") claim for disability benefits. The Court issues the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. To the extent that any findings of fact are included in the conclusions of law section, they shall be deemed findings of fact, and to the extent that any conclusions of law are included in the findings of fact section, they shall be deemed conclusions of law.
| FINDINGS OF FACT | SOURCE (AR) |
|---|---|
| 1.) The parties have stipulated, and the Court hasaccepted their stipulation, to de novo review. | 1.) DKT 31,32 |
| 2.) The plan in this matter, Arnold & Porter KayeScholer, L.L.P. Welfare Benefit Plan and IndividualDisability Income Policy, insured by Unum (collectively | 2.) PolicyEx. 2, 000061,Ex. 3, 002920 |
| "Policy"), is an employee welfare benefit plan withinthe meaning of the Employee Retirement IncomeSecurity Act of 1974, 29 U.S.C. § 1132 ("ERISA"). | |
| 3.) The Policy provides benefits to eligible qualifyingparticipants, which includes Plaintiff, in the event theybecome "disabled" within the meaning of the Policy. | 3.) Id. |
| 4.) Under the Policy, a claimant is disabled whenlimited from performing the material and substantialduties of your Regular or Usual Occupation. | 4.) Id. |
| 5.) After 24 months, a claimant is disabled whenunable to perform the duties of "any occupation" or"any gainful occupation." | 5.) Id. |
| 6.) Regular or Usual Occupation means your occupationas it is normally performed in the national economy,instead of how the work tasks are performed for aspecific employer at a specific location. | 6.) Policy Def.Reg./Usual Occ.Ex. 4,000083, 002920 |
| 7.) Plaintiff's job at a large law firm, Arnold & Porter,as a User Support Specialist, required legal typing andconstant sitting. | 7.) Job DescriptionEx. 5000121 to 000122 |
| 8.) Plaintiff's job was sedentary, and in addition toconstant sitting, required Concentration ("ability tofocus on a task for some length of time"), and LogicalThinking ("ability to use reasoning consistently ..."). | 8.) Id. |
| 9.) Plaintiff's Regular or Usual Occupation in thenational economy was described by Unum's vocationalconsultant, Ms. Mary Cloutier, as sedentary and"constantly sitting," meaning "5.5+ hours in an8 hour day." | 9.) Cloutier'sVoc. Report 9.21.18Ex. 6002257 to 002259 |
| 10.) Plaintiff's Regular or Usual Occupation inthe national economy was sedentary and required"focus and concentration." | 10.) Id. |
| 11.) Yolanda's first MRI of the lumbar spine, onNovember 14, 2015, when she was still working, showedforaminal narrowing, a 3-4 mm disc protrusion at L3/4,and a 4-5 mm protrusion at L4/5. | 11.) MRILumbar SpineEx. 1611.14.15002759 |
| 12.) A second MRI performed on March 19, 2018,when Yolanda was no longer able to work, showed"disc protrusion at L3-4 contacting the right L3 nerveroot, disc bulge at L2-3, disc/osteophyte complex at L4-5,foraminal stenosis at L3-4 and L4-5, and an annularfissure at L4-5. (New findings from 2015 to 2018 areunderlined.) | 12.) MRILumbar SpineEx. 103.19.18003891 |
| 13.) Lumbar x-rays, on March 12, 2018, showed"severe" disc narrowing at L4/5. | 13.) X-ray Report3.12.18Ex. 15, 001239 |
| 14.) Plaintiff's primary disabling condition, assupported by her x-ray, MRI, and clinical findings,is back and leg pain (sciatica) related to multi-level | 14.) See:¶¶ 12, 13,supra |
| degenerative lumbar disc disease, stenosis,radiculopathy, and "severe disc narrowing at L4/5." | |
| 15.) On July 13, 2018, Unum initially approved and paidlong-term disability benefits under the IDI Policy, and onJuly 16, 2018, under the LTD Policy. Unum advisedRios that approval was based on diagnoses of anxietyand depression rather than physical impairment. Unumagreed to further evaluate Rios' physical complaints. | 15.) Unum'sApproval LettersEx. 117.13.18, 002089;7.16.18, 002107;AR 2108 |
| 16.) On September 26, 2018, Unum terminated thebenefits it had been paying under both the IDI and LTDPolicies after determining that Rios was not entitled tofurther benefits under the Policies. | 16.) Unum's Term.Letter 9.26.18Ex. 19002267-002274 |
| 17.) Unum terminated benefits, in part, on thebasis of a vocational report from its in-house vocationalspecialist, Ms. Mary Cloutier, who, on September 21, | 17.) Cloutier'sVoc. Report9.21.18 |
| 2018, described Plaintiff's Regular or Usual Occupationin the national economy as "sedentary." | Ex. 6; 002258 |
| 18.) Unum further indicated at the time of itstermination of benefits, on September 26, 2018, thatPlaintiff's sedentary occupation in the national economyallowed her "the opportunity to stand and stretch and ...to briefly walk around the office ... (and) ... changepositions intermittently as needed," so as to ease herpain and enable her to work. | 19.) Term. Let.9.26.18Ex. 19002270 |
| 19.) Dr. Malhis was a treating doctor (orthopedist) onSeptember 26, 2018, at the time of Unum's terminationof benefits, and on March 12, 2018, he documented thatsitting, walking, and standing-up aggravated Plaintiff'spain, while rest improved it. | 20.) Malhis' Rec.Ex. 12003894 |
| 20.) Dr. Hafezi was a treating doctor (pain specialist)on September 26, 2018, at the time of Unum'stermination of benefits, and on September 19, 2018, he | 21.) Hafezi's Rec.Ex. 13003855, |
| documented that sitting, standing, and walking aggrava-ted Plaintiff's back and leg pain, and rest relieved it. | 003862 |
| 21.) Physical Therapy, on April 3, 2018, documentedthat sitting and standing aggravated her pain, whilelying down and resting eased it. | 22.) PT Rec.Ex. 14003909-003910 |
| 22.) Mr. Edward Estrada was Plaintiff's Physician-Assistant (PA) on September 26, 2018, at the time ofUnum's termination of benefits, and on July 30, 2018, hedocumented "severe left knee pain and swelling" and thatPlaintiff "is having a hard time walking, is mainlylimping x4 days ... weight-bearing and walking makepain worse and rest helps it." | 23.) Estrada's Rec.Ex. 18003866 |
| 23.) Unum also based its termination of benefits on aPhysician-Assistant Mr. Estrada's determinationthat "patient shouldn't sit or stand for prolonged (>1 hr)periods of times." (sic) | 24.) Estrada Rec.Ex. 18003710 |
| 24.) Mr. Estrada did not indicate the total lengthof time Plaintiff could sit or stand in an 8-hourworkday, but he did indicate that Rios "should notbe required to stay in a fixed position (sitting orstanding) for more than an hour at a time beforebeing allowed to change position." | 25.) Id.AR 2251 |
| 25.) On September 26, 2018, Unum terminatedPlaintiff's benefits under both the IDI and LTDPolicies. | 26.) Ex. 19002267-002268 |
| 26.) On February 25, 2019, Plaintiff appealed Unum'sclaim termination decision on the basis that it wascontrary to the facts in the first instance andincorrectly taken. | 27.) Pl.'s AppealLet. 2.25.19Ex. 23003720 |
| 27.) On April 11, 2019, Unum denied Plaintiff'sappeal. | 28.) Unum AppealDenial Letter4.11.19Ex. 22 |
| 002669 | |
| 28.) Unum's appeal denial decision was based in largepart on a medical report from its in-house medicalreviewer, Dr. Scott Norris. Unum also considered theopinions of its Medical Consultants: Alex Ursprung,Ph.D, Stuart Shipko, M.D., Joseph Antaki, M.D., andPeter Brown, M.D. | 29.) Norris' Report3.25.19 Ex. 20002632 to 002633 |
| 29.) Dr. Norris is a "family and occupationalmedicine" doctor and not an orthopedic surgeonor pain specialist. | 30.) Id. |
| 30.) Dr. Norris did not examine Plaintiff butperformed a paper review on March 25, 2019 andconcluded that "the mild to moderate findings noted onexaminations and diagnostic testing/imaging do notsupport ongoing impairment that would preclude work." | 31.) Id.002633 |
| 31.) Unum's in-house nurse reviewer, Ms. Malan- | 32.) Nursing Report |
| Elzawahry, performed a paper review on March 12,2019 and concluded that "the insured's reported levelof pain is above that expected with the radiographicchanges described." | 3.12.19Ex. 21002605 |
| 32.) In making their pain assessments favoringnon-disability, neither Dr. Norris nor NurseMalan-Elzawahry examined or treated Plaintiffor talked to her by telephone. | 33.) See:¶¶ 32 and 33,supra |
| 33.) Dr. Steiger, Plaintiff's treating orthopedist, neverindicated that Plaintiff complained of "excess pain" orthat her MRI/X-ray findings and examination findingsdid not support her pain complaints, and he specificallydocumented that Plaintiff was not a "malingerer." | 34.) Steiger's Rec.Ex. 7003746 |
| 34.) Dr. Malhis was Plaintiff's treating orthopedistbefore Dr. Steiger, and he documented that Yolanda"cannot sit or stand for long periods of time due tosignificant pain ..." and never indicated that Plaintiff | 35.) Malhis' Rec.Ex. 12003885 |
| complained of "excess pain" or that her MRI/X-rayfindings and examination findings did not support herpain complaints. | |
| 35.) Dr. Hafezi, Plaintiff's treating pain specialist,documented that sitting, standing and walking aggravatedYolanda's back and leg pain, and he never indicated thatPlaintiff complained of "excess pain" or that herMRI/X-ray findings and examination findings did notsupport her pain complaints. | 36.) Hafezi's Rec.Ex. 13,003855 |
| 36.) Dr. Darling, Plaintiff's treating psychologist,documented Yolanda's back pain and never indicatedthat Plaintiff complained of "excess pain" or that herMRI/X-ray findings and examination findings did notsupport her pain complaints. | 37.) Darling Rec.Ex. 17003784 |
| 37.) Dr. Han, Plaintiff's treating primary care doctor,documented Yolanda's back pain, sciatica, andradiculopathy, and never indicated that Plaintiffcomplained of "excess pain" or that her MRI/X-ray | 38.) Han's Rec.Ex. 8003792-003793 |
| findings and examination findings did not support herpain complaints. | |
| 38.) Dr. Aguilera, Plaintiff's treating gynecologist,documented that Yolanda's back pain disabled herfrom sitting at a computer most of the day and neverindicated that Plaintiff complained of "excess pain"orthat her MRI/X-ray findings and examination findingsdid not support her pain complaints. | 39.) Aguilera's Rec.Ex. 9003801 |
| 39.) Plaintiff's treating Physical Therapists documentedthat Yolanda was unable to sit or stand for "prolongedperiods" and never indicated that Plaintiff complainedof "excess pain" or that her MRI/X-ray findings andexamination findings did not support her pain complaints. | 40.) PT Rec.Ex. 14003909 |
| 40.) Physician-Assistant Mr. Edward Estrada,Plaintiff's treating primary care provider, documenteda 60-minute interval sitting limitation and never indicatedthat Plaintiff complained of "excess pain," or that her | 41.) Estrada's Rec.Ex. 18003710 |
| MRI/X-ray findings and examination findings did notsupport her pain complaints. | |
| 41.) No treating or examining doctor or health providerindicated that Plaintiff complained of "excess pain," orthat her MRI/X-ray findings and examination findingsdid not support her pain complaints. | 42.) See:¶¶ 35 to 42,incl.supra |
| 42.) Dr. Norris' report, favoring non-disability, wasbased on his determination that "neurological deficitswere not observed," when on October 30, 2018 Dr.Steiger documented "neurological deficits" that includedloss of sensation and hypesthesia of the lateral right legrand foot, the absence of patellar and Achilles deeptendon reflexes (DTRs) in the lower extremities, positivelying and sitting straight-leg raise (SLR) tests and apositive Lasegue's test, indicative of lumbar nerveimpingement. | 43.) Norris' Report3.25.19Ex. 20,002633;Steiger's Rec.Ex. 7003736-003737 |
| 43.) On November 29, 2018, Dr. Han similarly | 44.) Han's Rec. |
| documented a positive SLR test consistent with nerveimpingement. | Ex. 8003792-003793 |
| 44.) Dr. Norris' report, favoring non-disability, wasbased on his finding that "diagnostic testing/imagingdid not identify structural disease" when on March 19,2018, an MRI of the lumbar spine showed discprotrusion at L3-4 contacting the right L3 nerve root,disc bulge at L2-3, disc/osteophyte complex at L4-5,foraminal stenosis at L3-4 and L4-5, and an annularfissure at L4-5. | 45.) Norris' Report3.25.19,Ex. 20,002632-002633;MRI Report3.19.18Ex. 10, 003891 |
| 45.) Dr. Norris' report was based on his finding that"lumbar MRI (March 2018) ... without evidence ofsignificant nerve root impingement ...", when on March19, 2018, Plaintiff's MRI of the lumbar spine showedstenosis and "disc protrusion at L3-4 contacting theright L3 nerve root ..." [Emphasis added.] | 46.) Id. |
|---|---|
| 46.) Dr. Norris' report, was based on his finding that | 47.) Norris' Report |
| Plaintiff's medical records "... did not describe... sedation... or other functional deficits related to medication sideeffects ...", when several treating doctors, including Dr.Steiger, documented that Plaintiff "takes a narcoticmedication which can be mind-altering and affectconcentration ..." | 3.25.19Ex. 20, 002633;Steiger's Rec.Ex. 7003741-003742 |
| 47.) Dr. Norris' report was based on his finding thatPlaintiff's medical records "... did not describe ...sedation ... or other functional deficits related tomedication side effects ...", when several treating doctors,including Dr. Aguilera documented that Plaintiff haddifficulty concentrating and had memory problems. | 48.) Norris' Report3.25.19Ex. 20, 002633;Aguilera's Rec.Ex. 9, 003801 |
| 48.) Dr. Norris' report was based on his finding thatPlaintiff's medical records "... did not describe... sedation... or other functional deficits related to medication sideeffects ...", when several treating doctors, including Dr.Darling documented impaired recall, attention andconcentration difficulties. | 49.) Norris' Report3.25.19Ex. 20, 002633;Darling's Rec.Ex. 17, 003778 |
| 49.) Dr. Norris' report was based on his finding thatPlaintiff's medical records "... did not describe .. sedation... or other functional deficits related to medication sideeffects ...", when several treating doctors, includingPhysician-Assistant Mr. Estrada, documented "memorychange," problems with focusing on tasks, and problemswith memory, confusion, and concentration. | 50.) Norris' Report3.25.19Ex. 20, 002633;Estrada's Rec.Ex. 18, 003876,003878 |
| 50.) Dr. Norris' report was based on his finding thatPlaintiff's medical records "... did not describe... sedation... or other functional deficits related to medication sideeffects ...", when several treating doctors, includingDr. Malhis documented that Plaintiff had memory andconfusion problems and that her "muscle relaxant(Flexeril) does not allow her to work." | 51.) Norris' Report3.25.19Ex. 20, 002633;Malhis' Rec.Ex. 12,003879 |
| 51.) At least five treating doctors and health careproviders documented sedation and other functionaldeficits related to Plaintiff's medications. | 52.) See:¶¶ 48 to 52,incl., supra |
| 52.) Dr. Norris' report was based on his finding thatPlaintiff's "... level of treatment was not consistent withthe severe level of impairment as reported by Ms. Rios,"when, because of the severity of her pain, Dr. Malhisdiscussed invasive treatment options that includedspinal injections and back surgery, which Plaintiffdeclined "because of the risks involved." | 53.) Norris' Report3.25.19Ex. 20, 002633;Malhis' RecordsEx. 12, 003881,003887;Decl. Rios 1.31.19Ex. 1, ¶9, 003730 |
| 53.) Dr. Norris' report was based on his finding thatPlaintiff's "... level of treatment was not consistent withthe severe level of impairment as reported by Ms. Rios,"when, because of the severity of her pain, Dr. Steigerdiscussed invasive treatment options that includedknee surgery, which Plaintiff declined "because of therisks involved." | 54.) Norris' ReportEx. 20, 002633;Steiger's Rec.Ex. 7003743;Decl. Rios 1.31.19Ex. 1, ¶ 9003730 |
| 54.) Dr. Norris' report was based on his finding that | 55.) Norris' Report |
| "... level of treatment was not consistent with the severelevel of impairment as reported by Ms. Rios," when,because of the severity of her pain, Dr. Hafezi discussedinvasive treatment options that included spinal injectionsand back surgery, which Plaintiff declined "because ofthe risks involved." | 3.25.19Ex. 20, 002633;Hafezi's Rec.Ex. 13, 003862,003869;Decl. Rios 1.31.19Ex. 1 ¶ 9003730 |
| 55.) Despite discussing spinal injections and surgery,Dr. Malhis also advised Plaintiff to try to "treat painconservatively." | 56.) Malhis' Rec.Ex. 12, 003929 |
| 56.) Unum's nurse reviewer, Ms. Malan-Elzawahry,prepared a report favoring non-disability based on apaper review of Plaintiff's file that relied on her findingthat Plaintiff's "sensory exams have remained normalas have her ... DTRs," when on October 30, 2018,Dr. Steiger documented sensory loss and hypesthesia ofthe lateral right leg and foot, a positive straight leg | 57) Nurse's Report3.12.19,Ex. 21,002601 - 002605;Steiger's Rec.Ex. 7003736 - 003737 |
| raise (SLR) test, a positive Lasegue's test, and anabsence of deep tendon reflexes (DTRs) in thelower extremities. | |
| 57.) Nurse Malan-Elzawahry incorrectly indicated that"repeated radiographs ... not[ed] age-relateddegenerative changes," when Plaintiff's MRI spinalfindings were multi-level and widespread; her x-rayfindings at L4/5 were "severe," and no one describedher x-ray or MRI findings as "age-related." | 58.) Ex. 21, 002605;Ex. 10, 003891;Ex. 15, 001239 |
| 58.) Nurse Malan-Elzawahry incorrectly indicated thatYolanda has "not required assistive devices forambulation" and that "there is no reports of falls" (sic),when Dr. Steiger documented that Plaintiff requiredusing a knee brace and fell on several occasions. | 59.) Ex. 20, 002605;Ex. 7, 003744,003742 |
| 59.) Plaintiff's job at Arnold & Porter requiredlegal typing, Concentration ("ability to focus on atask for some length of time"), and Logical Thinking | 60.) Job DescriptionEx. 500121-00122 |
| ("ability to use reasoning consistently ..."). | |
| 60.) Plaintiff's Occupation in the national economy,as described by Unum's own vocational consultant, Ms.Mary Cloutier, required "focus and concentration." | 61.) Cloutier'sVoc. Report9.21.18Ex. 6, 002257-002259 |
| 61.) At least five treating doctors and health careproviders documented that Plaintiff was takingdrugs "that affect concentration, and that Plaintiff hadmemory problems, impaired recall and attention,trouble focusing on tasks, confusion, and that her"muscle relaxant (Flexeril) does not allow her to work." | 62.) See:¶¶ 48 to 52,incl.,supra |
| 62.) On February 25, 2019, in Plaintiff's pre-litigationappeal of Unum's termination of benefits, Plaintiffargued that she was "disabled from her job," from her"prior occupation"and/or "any occupation," and thather "functional capacity is less than sedentary." | 63.) Plaintiff'sAppeal Letter2.25.19Ex. 23003720 |
| 63.) On April 11, 2019, in its appeal denial letter,Unum addressed whether Plaintiff's functionalcapacity was "less than sedentary" and determined that,based on the evidence it already had, it was not. | 64.) Unum'sAppeal Denial Letter4.11.19Ex. 22, 002673 |
| 64.) Unum never indicated that it wanted to perform anyadditional evaluations, such as an IME or an FCE, tofurther evaluate Plaintiff's claim that her exertionalcapability was "less than sedentary." | 65.) Id. |
| 65.) Unum's vocational consultant, Ms. Cloutier,indicated that "sedentary" work involves "sittingmost of the time," that Plaintiff's occupation in thenational economy required "constant sitting,"and that "constantly" meant "5.5+ hours a day inan 8-hour workday." | 66.) Cloutier'sVoc. Report9.21.18Ex. 6, 002257 -002259 |
| 66.) Dr. Han (Plaintiff's treating primary care physician)documented that Plaintiff alleged she was able to sit forless than 4 hours and stand/walk for less than 2 hours in | 67.) Han's Rec.Ex. 8,003792-003793 |
| an 8-hour workday. | |
| 67.) Dr. Malhis (Plaintiff's treating orthopedist)documented that Plaintiff "cannot sit or standfor long periods of time due to pain ... and has ...difficulty when driving due to pain." | 68.) Malhis' Rec.Ex. 12003885 |
| 68.) Dr. Hafezi (Plaintiff's treating pain specialist)documented that sitting, standing, walking aggravatedher back and leg pain. | 69.) Hafezi's Rec.Ex. 13003855 |
| 69.) Dr. Aguilera (Plaintiff's treating gynecologist)documented that Plaintiff "cannot sit nor stand over4 hours." | 70.) Aguilera's Rec.Ex. 9, 003801 |
| 70.) Physical Therapy documented that Plaintiff is"... unable to sit/stand for prolonged periods ..." | 71.) PT Rec.Ex. 14003909 |
| 71.) Dr. Steiger (Plaintiff's orthopedist) documented | 72.) Steiger's Rec. |
| that Plaintiff was limited to sitting not more than1-2 hours and walking/standing not more than2-3 hours in an 8-hour workday. | Ex. 7003748 |
| 72.) No treating or examining doctor or healthcareprovider ever indicated that Plaintiff could sit for morethan 4 hours, let alone 5.5+ hours, in an 8-hour workday. | 73.) See:¶¶ 68 to 74,incl., supra |
| 73.) Plaintiff testified through her Declaration thatshe required lying down 1-2 hours during the dayto rest her back because of pain. | 74.) Decl. Rios, Ex.1¶20, dated 1.31.19,003731; corroboratedby Dr. Steiger -"standing, walking,and sitting aggravateher |pain." [Ex. 7;003734, 003737,003744]; Dr. Malhis -"improves with rest"[Ex. 12, 003894]; Dr.Hafezi - "relieving |
| factors - rest, painmedications" [Ex. |13,03855, 003859];Physician-AssistantEstrada -"severe leftknee pain ... hard timewalking ... mainlylimping x4 days ...limit weight-bearing."[Ex. 18, 003866-3867];and Physical Therapy -"easing factors -lyingdown, resting" [Ex. 14,003910]. | |
| 74.) Plaintiff is not inert or bedridden and is able toperform some household chores and activities of dailyliving, but at her own pace and with pain. | 75.) Decl. RiosEx. 1, ¶22003731 |
| 75.) Dr. Steiger indicated that Plaintiff was unable to | 76.) Steiger's Rec. |
| perform any "full time competitive work." | Ex. 7003741-003742 |
| 76.) Dr. Steiger indicated that Plaintiff's"disability is expected to continue indefinitely." | 77.) Id. |
| 77.) On May 10, 2019, having exhausted all ofher administrative remedies, Plaintiff filed suit. | 78.) DKT No. 1 |
CONCLUSIONS OF LAW
1.) The Court has jurisdiction over this action pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA") 29 U.S.C. §§ 1132(a), (e), (f) and (g) as it involves a claim by Plaintiff for employee benefits under employee benefit plans regulated and governed under ERISA. 2.) De novo review on ERISA benefit claims is typically conducted as a bench trial under Rule 52. (Lee v. Kaiser Found. Health Plan Long Term Disability Plan, 812 F. Supp. 2d 1027, 1032 n. 2 (N.D. Cal. 2011)). 3.) De novo is a non-deferential standard of review, meaning the court evaluates the claim strictly on the merits, accords the plan no factual or legal deference and does not defer to the insurer's previous finding. (Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999)). 4.) Under a de novo review, the standard of proof is a preponderance of the evidence standard, which requires credible evidence that shows a greater than fifty percent chance that Plaintiff's claims are true. (9th Cir Jury Instr. § 1.3 - "... you must be persuaded by the evidence that the claim ... is more probably true than not true," ... regardless of which party presented [the evidence.]"). 5.) Under a de novo review, the court simply proceeds to evaluate whether the insurer correctly or incorrectly denied benefits. (Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006)). 6.) Under a de novo standard of review, which requires a preponderance of the evidence, claim denial decisions are subjected to more rigorous scrutiny than under an abuse of discretion standard, which requires "substantial evidence." (Adamson v. Unum Life Ins. Co. of America, 455 F.3d 1209, 1212 (10th Cir. 2006)). 7.) De novo review on ERISA benefit claims is typically conducted as a bench trial under Rule 52. (Lee v. Kaiser Found. Health Plan Long Term Disability Plan, 812 F. Supp. 2d 1027, 1032 n. 2 (N.D. Cal. 2011)). 8.) While Unum correctly avers that "Rios' assertion that her self-reported symptoms rise to the level of disability should not be taken at face value," Dkt. 52, ¶ 9, when pain complaints are associated with a medically demonstrable impairment, credible pain testimony should contribute to a determination of disability. (Cotton v. Bowen, 799 F.2d 1403, 1407-1408 (9th Cir. 1986)). An adjudicator who rejects a claimant's allegations of the severity of pain may do so only when properly supported by the record and may not "arbitrarily discredit a claimant's testimony regarding pain." (Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1991)). 9.) In adjudicating disability claims under ERISA, courts have found that Social Security Administration ("SSA") opinions may be helpful guidance. (Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 695 n.11 (7th Cir. 1992)). If a Social Security disability claimant is determined to be "less than sedentary," this means the claimant is disabled from "any gainful occupation" and entitled to benefits. 42 U.S.C. 423(d)(1)(A); C.F.R. § 404.1520. The Ninth Circuit has held that it is "erroneous" for a district court to reject the SSA's definition of "sedentary" simply because it was drawn from a "Social Security context" and to hold that "the federal criteria for Social Security claims are not transferable to ERISA cases." (Armani v. Northwestern Mutual Life Insurance Co., 840 F.3d 1159, 1163 (9th Cir. 2016)). While the Court does not base its determination in this case on Rios' favorable SSA decision, it does consider the award to be relevant, in keeping with Ninth Circuit precedent. (Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623 (9th Cir. 2009)). 10.) An employee "who cannot sit for more than four hours in an 8-hour work-day cannot perform 'sedentary work' that requires sitting 'most of the time.'" (Armani v. Northwestern Mutual Life Insurance Co., 840 F.3d 1159, 1164 (9th Cir. 2016)). That Rios is able to engage in some limited daily activity does not necessarily enable her to work full-time in a competitive work environment. (See Hawkins v. First Union Corp., 326 F.3d 914 (7th Cir. 2003) ("Hawkins' unfortunate choice in life is between succumbing to his pain ... and becoming inert ... (or) pushing himself to engage in a certain amount of painful ... activity ... (this) does not prove that he is not disabled.")). 11.) Paper reviews are not inherently objectionable. (Siegel v. Conn. Gen. Life Ins. Co., 702 F.3d 1044 (8th Cir. 2012)). However, an insurer's decision not to perform an independent medical examination, when the plan or policy allowed it, "raise[s] questions about the thoroughness and accuracy" of its benefits determination. (Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 630, 634 (9th Cir. 2009)). When disability is based on a diagnosis of chronic pain and its functional impairments, as here, the disability opinions from non-examining physicians paid by the insurance company are entitled to "skepticism" when "physicians who actually examined [Plaintiff are] entirely one sided in favor of [Plaintiff's] claim." (Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676-679 (9th Cir. 2011). 12.) The court gives less weight to a non-examining doctor's opinion favoring a denial of benefits for subjective complaints such as pain, without a physical examination. (Schramm v. CNA Fin. Corp. Insured Group Benefits Program, 718 F. Supp. 2d 1151, 1164 (N.D. Cal. 2010) ("[T]he court gives little weight to the opinions of (doctors) ... who are not examining plaintiff in person.")). The court also gives little weight to a non-examining doctor's opinion, based on a paper review of the file, about the credibility of a plaintiff in reporting her subjective complaints, such as pain, without a physical examination. (Smith v. Continental Cas. Co., 450 F.3d 255, 263-264 (6th Cir. 2006) (credibility findings concerning subjective complaints without a physical exam were improper)). 13.) Rios' decision not to undergo surgery that could potentially improve her condition does not render her ineligible to receive benefits. A plaintiff is neither non-compliant nor is she required to undergo invasive treatments, such as surgery, when the policy does not require her to pursue the most aggressive treatment as a condition of eligibility to receive benefits. (Shaw v. AT&T Umbrella Plan 1, 795 F.3d 538 (9th Cir. 2015)). 14.) Courts often remand unexhausted "any occupation" determinations to the insurer. (Nagy v. Grp. LTD Plan for Employees of Oracle Am., Inc., 183 F. Supp. 1015, 1032 (N.D. Cal. 2016), aff'd, 739 F. App'x (9th Cir. 2018)). However, courts have discretion to excuse non-exhaustion and award "any occupational" benefits even though the insurer did not decide eligibility for benefits under the "any occupation" definition of disability in the first instance. (Reetz v. Hartford Life & Acc. Ins. Co., 294 F. Supp. 3d 1068, 1084 (W.D. Wash. 2018)). 15.) Administrative remand is discretionary with the court, and when an insurer's termination of benefits decision is simply contrary to the facts, the appropriate remedy is reinstatement of benefits rather than administrative remand if remand would be an exercise in futility. (Grosz-Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154, 1163 (9th Cir. 2001) ("A plan administrator will not get a second bite at the apple when its first decision was simply contrary to the facts."); (Paese v. Hartford Life and Acc. Ins. Co., 449 F.3d 435 (2nd Cir. 2006)). 16.) Failure to administratively exhaust an "any occupation" claim is an affirmative defense and does not deprive the court of its jurisdiction. The court retains its jurisdiction and discretion to excuse non-exhaustion when plaintiff makes a "clear and positive" showing that exhaustion would be futile. Id. at 443. Administrative remand to determine an entitlement to benefits under the "any occupation" standard is inappropriate where plaintiff has argued for benefits under both the "own occupation" and "any occupation" standards and the evidence supports plaintiff's inability to perform either her "own occupation" or "any occupation" under the policy. Therefore, the Court declines to remand this case to Unum to conduct an "any occupation" evaluation. 17.) Under ERISA, an award of attorney's fees and interest is discretionary with the court. (29 U.S.C. § 1132(g)). The Ninth Circuit typically follows a presumption in favor of a fee award to a successful ERISA plaintiff "unless special circumstances would render such an award unjust." (McElwaine v. US West, Inc., 176 F.3d 1167, 1172 (9th Cir. 1999)). A successful plaintiff may request permission to make an Application for an Award of Attorney's Fees under Local Rule 54-10, including both pre- and post-judgment interest under 28 U.S.C. § 1961. (Blankenship v. Liberty Life Assurance Co. of Boston, 486 F.3d 620, 628 (9th Cir. 2007)).
CONCLUSION
After considering the parties' arguments, for the reasons explained above and based on the totality of the evidence in the Administrative Record, the Court HOLDS that Rios has proven by a preponderance of the evidence that she is entitled to policy benefits under both the "own occupation" and "any occupation" standards. Judgment shall be entered in Plaintiff's favor. DATED: December 10, 2020
/s/
DAVID O. CARTER
UNITED STATES DISTRICT JUDGE