Opinion
No. C-03-4287 MMC, Docket Nos. 14, 18.
July 27, 2004
ORDER DENYING PLAINTIFF'S MOTION FOR DE NOVO REVIEW; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; VACATING HEARING
Before the Court are two motions in the above-titled action, each of which is scheduled for hearing on July 16, 2004: (1) plaintiff Zell Washington's ("Washington") Motion to Determine Scope of Review, filed June 11, 2004, by which Washington asks the Court to review de novo Standard's decision to terminate her disability benefits, and (2) Defendant Standard Insurance Co.'s ("Standard") Motion For Summary Judgment, filed May 6, 2004. The Court, having considered the papers filed in support of and in opposition to the motions, finds the matters appropriate for decision without oral argument, see Civil L.R. 7-1(b), and hereby VACATES the July 16, 2004 hearing on the motions. For the reasons set forth below, Washington's motion for de novo review is DENIED, and Standard's motion for summary judgment is GRANTED.
BACKGROUND
In the above-titled action, Washington seeks to recover disability insurance benefits pursuant to a group insurance policy issued by Standard to Washington's former employer, the California State Automobile Association ("CSAA"). Washington asserts a single claim against Standard for violation of § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B).On May 27, 1997, Washington applied to Standard for long-term disability benefits. (See Whitesell Decl. Ex. 2.) In that application, Washington stated that she became unable to work at her occupation as a mail processor, as of July 15, 1996, due to disability. (See id.) She described her injury as "pinch in back legs" and stated that her injury prevented her from working because she "can't push cart, stand or sit for a long time." (See id.) According to Washington, her last day at work was May 23, 1997. (See id.)
Washington's physician, Thomas McClure, M.D. ("Dr. McClure"), submitted an attending physician's statement, dated June 5, 1997, in which he stated that Washington was suffering from radiculitis with symptoms of low back pain, leg pain, and tingling. (See id. Ex. 3.) Dr. McClure stated that he expected Washington's condition to improve and that she would be able to return to work by August 1, 1997. (See id.)
Standard also received a copy of a report from Donald L. Trauner, M.D. ("Dr. Trauner"), dated March 18, 1997. (See id. Ex. 4.) Dr. Trauner stated that an MRI was performed on Washington on February 5, 1997, which showed "significant degenerative changes in the lumbar spine resulting in moderately severe central canal stenosis at the level of L3-4 and L4-5 and moderately severe bilateral neural foraminal narrowing at the level of L4-5 on the left and L3-4." (See id. at 2.) Dr. Trauner found Washington's condition to be permanent, stationary and rateable, and concluded that her symptoms in her back and legs were "intermittent and slight, which become moderate with heavy work and which preclude heavy lifting." (See id. at 6.) Dr. Trauner concluded, however, that "Washington could return to modified duties" because "[s]he is apparently able to sit and sort mail and . . . should be able to continue to do so." (See id. at 6-7.)
Standard also received a report from Jerome A. Schofferman, M.D. ("Dr. Schofferman"), dated June 17, 1997, who evaluated Washington at Dr. McClure's request. (See id. Ex. 5.) Dr. Schofferman concluded that Washington "has severe L4 and L5 degenerative disc disease with severe stenosis plus moderate central stenosis and lateral recess stenosis at L3-4." (See id. at 1.) He stated that Washington could "walk about ten minutes, stand ten minutes, and sit for 30 minutes." (See id.) Dr. Schofferman also opined that Washington suffered from "[c]hronic pain syndrome associated with both psychological factors and a generalized medical condition." (See id. at 2.) He recommended that Washington use "a Raney type flexion body jacket" and opined that if Washington were "partially successful" with this treatment, he would "return her to work in a sitting job, four hours per day, with a good ergonomic chair, and see how she does." (See id. at 1.)
On August 11, 1997, Standard approved Washington's claim for long-term disability benefits. (See id. Ex 6.)
On September 9, 1997, a work capacity evaluation of Washington was performed by a physical therapist, Menandro Madlansacay, and an Industrial Science Specialist, Tom Laborde, in which they concluded that Washington "was not seen as putting forth a maximum effort and refused to perform several items in the Work Capacity Evaluation test." (See id. Ex. 8 at 1.) Their report stated that Washington "presented with a high perception of pain and refused to continue and/or participate in further testing despite the absence of objective physical signs showing dysfunction and/or unsafe movement," and concluded that as a result of Washington's "variable cooperation[,] a reliable assessment of her effort could not be performed." (See id.)
In a supplemental report dated November 6, 1997, Dr. McClure noted: "Ms. Washington's examinations remain fairly consistent in this office, and she is not seen to magnify her symptoms." (See id. Ex. 9 at 3.) Dr. McClure further noted that Washington had been given "several return to work trials which . . . failed despite every effort to accommodate her." (See id.) According to Dr. McClure, Washington told him that she wanted to return to work, but was "fearful of reinjury given the history of numerous unsuccessful attempts in the past." (See id. at 4.) Dr. McClure opined that "given her level of pathology and the history, it is unlikely that CSAA could provide accommodation as a mail processor that would permit her to work in any capacity with her current level of pain." (See id.) Dr. McClure concluded that Washington remained "temporarily totally disabled with the expectation that there will be a permanent significant disability" which he felt would be "greater than [that] suggested by Dr. Trauner." (See id.) According to Dr. McClure, there was a "very low probability" that Washington would return to her job as a mail processor. (See id.)
In a letter dated June 17, 1998, Standard reminded Washington about the two different definitions of "disability" in her insurance policy. (See id. Ex. 10.) According to the policy, Washington was entitled to long-term disability benefits for 24 months due to disability from her own occupation. (See id.) After 24 months, Washington was entitled to benefits only if she were disabled from working in any occupation. (See id.) Standard informed her that because she first became entitled to benefits on May 23, 1997, Standard would evaluate her ability to perform any other occupation, beginning May 23, 1999. (See id.)
In a letter dated April 23, 1999, Standard informed Washington that it had completed its review of her claim and had determined that she "could not perform with reasonable continuity the material duties of any occupation, which [she has] the education, training and experience to perform," and, consequently, Washington remained eligible for benefits after May 22, 1999. (See id. Ex. 12.) Standard notified Washington that it would periodically review her claim and eligibility for benefits, and would ask her to provide updated medical statements at her cost. (See id.)
In a letter dated May 10, 1999, which Standard received on September 11, 2000 as part of a package of documents related to Washington's workers' compensation claim, Stephen Conrad, M.D. ("Dr. Conrad") opined that "Washington's level of permanent disability, as it relates to the lumbar spine is consistent with the preclusion for heavy work." (See Exhibits to Plaintiffs' Motion for Scope of Review ("Pl. Ex.") 00798.) Dr. Conrad further opined that Washington remained "unable to return to her former job as a mail processor." (See id. at 00797.)
In a report dated May 11, 1999, which Standard also received on September 11, 2000, William G. Brose, M.D. ("Dr. Brose") of Alpha Omega Pain Medicine Associates, Inc. summarized Washington's performance in the Health Education for Living with Pain ("HELP") Program. (See id. Ex. 13.) Dr. Brose stated that Washington's "performance, while sincere in effort, was moderately sub-optimal and limiting due to a variety of factors including fear of reinjury and continued anger directed towards the employer/insurance carrier." (See id. at 6.) He also noted that Washington's "participation was punctuated by medical complications including antihypertensive medication management and psychiatric medication management." (See id.) Dr. Brose found it "clear that from a musculoskeletal perspective, Ms. Washington is capable of performing work with some reasonable levels of productivity," (see id.); "[h]owever, when one integrates her antihypertensive management and her psychiatric management, which are both non-industrial in nature, the patient's ability to compete in the open labor market is severely impaired," (see id. at 7).
Dr. McClure, in an attending physician's statement dated September 18, 2000, stated that Washington had degenerative disc disease and myofascial lumbosacral spine pain syndrome, and noted that she also suffered from "concurrent depression/psychosis," which was being treated elsewhere. (See id. Ex. 14 at 1.) He stated that Washington's limitations were permanent, but that she could possibly return to work if she had a shortened work day in a position that involved no lifting and that allowed her to alternate sitting, standing, and walking. (See id. at 2.)
On December 4, 2000, Standard spoke with Dr. Roman Rodriguez ("Dr. Rodriguez"), Washington's psychiatrist, who stated that Washington has a form of bipolar disorder. (See id. Ex. 15.) Dr. Rodriguez told Standard that Washington did not have a disability due to psychiatric issues, however. (See id.)
On February 16, 2001, Washington informed Standard that she had changed doctors and was now receiving treatment from Dr. Robert Bundy ("Dr. Bundy") at Kaiser Occupational Health Services in San Francisco, and was no longer being treated by Dr. McClure. (See id. Ex. 16.)
In an attending physician's statement dated February 23, 2001, Dr. Bundy stated that Washington suffered from spinal stenosis and chronic lymphocytic leukemia. (See id. Ex. 17.) He further stated that she was experiencing chronic low back pain that became worse with standing and walking, and that she was "unlikely to return to any job above sedentary." (See id.)
On December 7, 2001, Lorrie Leno, Standard's Nurse Case Manager, reviewed Washington's medical records and concluded that Washington was not precluded from full-time sedentary work. (See id. Ex. 18 at 2.) Standard obtained a vocational assessment from Lee Howard, a Vocational Case Manager for Standard, who opined, in a report dated December 26, 2001, that Washington was "precluded from performing her own job and her own occupation as a Mail Processor/Clerk because both fall in the Light category of work." (See id. Ex. 19 at 2.) He found, however, that Washington had "the skills and abilities to perform a variety of alternative occupations" classified as "sedentary," including the positions of maintenance service dispatcher, appointment clerk, check cashier, and telemarketer. (See id. at 3-5.)
On January 15, 2002, Standard sent a letter to Washington informing her that Standard had determined she was no longer qualified for long-term disability benefits. (See id. Ex. 20.) The letter states, in relevant part:
You ceased work due to spinal stenosis and have received conservative treatment for low back pain. Due to your back pain it is reasonable that you are unable to return to work as a mail processor which is considered light level work. More recently medical records received from Kaiser indicate that you have mild scoliosis of the lumbosacral spine with disc narrowing at L3 and moderate spondolytic changes. Dr. Bundy has rated you permanent and stationary regarding your degenerative disc disease/degenerative joint disease with stenosis. You have been offered epidural injections but have declined and you are not interested in surgery.
Since the time you ceased work you have also been diagnosed with chronic lymphocytic leukemia, 1999. Dr. Bundy has reported that your CLL is "stable" and you are not taking any medications.
In addition, we have considered that you have been treated by Dr. Rodriguez for bipolar disorder since 1987. Dr. Rodriguez feels you are stable on medication and there are not any limitations and restrictions regarding your mental condition.
Ms. Washington, while you have multiple medical conditions, the medical documentation in your claim file supports that your condition has stabilized and that each medical condition alone or in combination would not preclude you from returning to full time sedentary work. You are taking minimal medications and your care and treatment have been conservative.
A vocational case manager has recently reviewed your claim file. Using the information you have previously provided, she was able to identify alternative occupations within your reported skills and abilities. Alternative occupations include but are not limited to maintenance service dispatcher, appointment clerk, check cashier, and telemarketer. These positions exist in your labor market in sufficient numbers to allow reentry into the workforce given your residual functional capacity and transferable skills.
Because there are alternative occupations that you are capable of performing you do not meet the Any Occupation Definition as defined by the California State Automobile Association group policy and you do not qualify for additional LTD benefits from The Standard. As you no longer meet the group policy's definition of disability your claim has been paid through January 22, 2002 and closed.
(See id. Ex. 20 at 2.) In the letter, Standard also informed Washington of her right to seek review of her claim, and informed her that if she did so, Standard would review her claim, as well as any additional information she wished to submit. (See id. at 3.) Standard further explained: "If you request a review, it would be helpful for you to provide any information you, your physician, or any other person may have supporting that your limitations and restrictions are greater than those understood by Standard." (See id.)
By letter dated January 23, 2002, Washington requested that Standard review her claim. (See id. Ex. 23.) Two days later, in a letter dated January 25, 2002, Washington informed Standard that she had talked to two of her doctors and had "decided not to have [her] claim reopened." (See id. Ex 24.) Washington instructed Standard to disregard her January 23, 2002 letter. (See id.) On February 25, 2002, Washington sent Standard a letter informing Standard that she "was given some bad advice about [her] claim and would now like to have [her] claim reopened and reviewed." (See id. Ex. 26.)
On March 27, 2002, Standard sent Washington a letter in which it again informed her of its decision to close her claim. (See id. Ex. 27.) The March 27, 2002 letter states, in relevant part:
You ceased work on January 25, 1997 due to spinal stenosis. You have received conservative treatment for low back pain, and due to your back pain it is reasonable that you are unable to work as a mail processor, which is considered light level work. More recently medical records from Kaiser indicate that you have mild scoliosis of the lumbosacral spine with disc narrowing at L3 and moderate spondolytic changes. Dr. Bundy has rated you permanent and stationary regarding your degenerative disc disease/degenerative joint disease with stenosis. You have declined epidural injections and surgery. Dr. Bundy has reported that your chronic lymphocytic leukemia is stable and you are not taking any medications to treat it. Dr. Rodriguez has treated you for bipolar disorder since 1987, and he has indicated you are stable on medication, and are without limitations regarding your mental condition.
While you have multiple medical conditions, the medical documentation in your file supports that your condition has stabilized. Each medical condition alone or in combination would not preclude you from returning to full time sedentary positions, including but not limited to maintenance service dispatcher, appointment clerk, check cashier, and telemarketer. You are taking minimal medications and your care and treatment have been conservative.
We did not receive any new medical information with your review request. Based on the information in your file, we feel the decision to close your claim was correct.
(See id. Ex. 27.)
On May 2, 2002, Standard's Quality Assurance Unit sent a letter to Washington informing her that its independent review of her claim determined that Standard's decision to close her claim was correct. (See id. Ex. 28.) That letter stated, in relevant part:
The major focus of our review was to determine if the medical evidence supports that you have limitations and restrictions of such severity as to prevent you from performing all gainful work activity.
The medical documentation, including reports from Drs. McClure, Dr. Brose, and Alpha Omega Pain Medicine Associates support that your limitations due to your back condition allow for work at the sedentary level. (In fact, it appears that your limitations have been consistent with sedentary work activity since at least July 1998 when Drs. McClure and Brose approved your vocational rehabilitation plan through workers' compensation.) In addition to your back condition, we understand that you have been diagnosed with chronic lymphocytic leukemia although the medical evidence on file supports that you are not limited as a result of this condition. You are also being treated for bipolar disorder and, as Ms. Czapszys indicated, Dr. Rodriguez has stated that your condition is stable.
Based on our review, we find that the medical documentation supports that you retain the physical capacity to perform gainful work activity. As alternate occupations have been identified, you do not meet your group policy's Any Occupation Definition of Disability and the decision to close your claim is correct and must be upheld.
Marina Czapszys, a Disability Benefits Analyst for Standard, signed the January 15, 2002 letter by which Standard informed Washington that Standard had determined that Washington was no longer qualified for long-term disability benefits.
(See id. at 1-2.)
In a letter dated August 7, 2002, Washington's counsel asked Standard to reopen Washington's appeal on the ground that Washington did not understand that she should have submitted additional medical evidence in support of her appeal. (See id. Ex. 29.) In connection with that letter, Washington submitted a letter dated July 18, 2002 from Dr. Bundy, in which he opined:
My overall impression is that she is very limited because of this work related injury that involved the lumbar spine along with the degenerative joint disease and degenerative disc disease. She is very restricted in any type of work that she may be able to do. I think that at her age it may be unrealistic to think that she could be re-trained. If she were to seek gainful employment it would have to be a very sedentary type of activity where she could control her own pace and be able to take frequent breaks to lie down and rest.
(See id. Ex. 30.)
Standard informed Washington, in a letter dated October 8, 2002, that it would "obtain additional medical records from Kaiser Permanente in order to confirm that the appropriate determination" was made on Washington's claim. (See id. Ex. 32.) Standard also requested that Washington provide the name and addresses of any other care providers who had treated her since January 2001 so that it could obtain those records as well. (See id. at 1-2.) Standard again summarized the medical evidence in its possession, including the July 18, 2002 letter from Dr. Bundy, and concluded that "[g]iven our review of the medical record in its entirety, we continue to find that the evidence supports that your client is capable of working at the sedentary level[.]" (See id. at 3.) In that regard, the letter states:
The decision to close Ms. Washington's claim was based on a review of extensive medical records, including Dr. Bundy's. In the January 15, 2002 letter, it was noted that records from Kaiser indicated that she had mild scoliosis of the lumbosacral spine with disc narrowing at L3 and moderate spondolytic changes. Additionally, they indicated that Dr. Bundy's chart notes reflected that your client was "permanent and stationery" and that she had declined treatment with epidural injections or surgery.
In reviewing the records from her previous physicians, Ms. Washington's condition relative to her back has been considered "permanent and stationary" (PS) for a number of years. Dr. Thomas McClure indicated on November 16, 1997 that your client was PS, with lifting limited to 10 pounds; she could occasionally push/pull, bend, reach overhead, and she should occasionally alternate between walking/sitting/standing. On June 30, 1998, Dr. McClure approved a vocational objective for which the dominant physical demands were: frequent sitting, forward reaching, hand usage for operating small telephone consoles, writing messages, occasional walking, standing, keyboarding, and infrequent bending. The position was mainly sedentary but provided the opportunity to stand from a sitting position to stretch when necessary.
In his capacity as an Agreed Medical Examiner, Dr. Stephen Conrad examined Ms. Washington on March 10, 1999. Dr. Conrad indicated that "Ms. Washington's level of permanent disability, as it relates to the lumbar spine is consistent with the preclusion for heavy work." He cited subjective factors that related to her upper back and upper extremities, specifically her right arm and hand. In this regard, Dr. Conrad characterized the pain as frequent minimal intensity, increasing to intermittent minimal to slight intensity with nonspecific movements and firm grasp of the right hand, and increasing occasionally to slight to moderate intensity with above shoulder level activity on the right side and repetitive head and neck movements.
The April 5, 1999 discharge report from Alpha Omega Pain Medicine Associates included their recommended work preclusions for Ms. Washington that were "both actual and prophylactic and are based on the patient's history, physical examination, demonstrated work abilities and fitness level." The report indicated that Ms. Washington's "performance, while sincere in effort, was moderately sub-optimal and self limiting due to a variety of factors including fear of reinjury and continued anger directed towards the employer/insurance carrier." According to the report, her work capacity included the following: seldom overhead work, occasionally lift and carry 20 pounds, occasionally push/pull 40 pounds, sit 50 minutes per hour, occasionally walk, and stand up to 45 minutes per hour with positional changes.
Dr. McClure saw Ms. Washington in follow-up on June 6, 2000. It was noted that her pain complaints were made worse by walking, standing, and prolonged sitting; moving around and stretching relieved her symptoms.
On February 16, 2001, Ms. Washington notified Standard Insurance Company that she had transferred her care from Dr. McClure to Dr. Bundy at Kaiser Occupational Health Services. In response to questions about the diagnosis of chronic lymphocytic leukemia, Ms. Washington confirmed that she had been diagnosed with the condition, but that it was "mild and relatively normal." She was not receiving any treatment, but was seen every six months for lab work.
Dr. Bundy completed an Attending Physician Statement on February 23, 2001. He provided diagnoses of spinal stenosis and chronic lymphocytic leukemia. Dr. Bundy documented symptoms of chronic low back pain that was made worse with standing and walking, noting that Ms. Washington was "unlikely to return to any job above sedentary."
Ms. Washington was also under the care of Dr. Roman Rodriguez, a psychiatrist at Kaiser. During a telephone conversation with Standard Insurance Company, Dr. Rodriguez stated that Ms. Washington's condition was stable and that he did not feel that she was disabled due to psychiatric issues. In a January 12, 2001 follow-up letter to Standard, Dr. Rodriguez indicated that he had been treating your client since 1987 and that she was diagnosed with Bipolar II Disorder. He stated that her clinical picture was "somewhat stabilized" and he saw her about once every three months.
In determining Ms. Washington's eligibility for continuing LTD benefits, the medical records contained within her claim file were reviewed, including those noted above. While it was evident that your client had limitations due to her medical condition, it was concluded that the medical evidence supported that she retained the ability to work at the sedentary level. A review was conducted by a vocational case manager to determine if there were appropriate occupations that Ms. Washington could perform, given her education, training and experience, as well as her physical capabilities. The occupations identified were within the sedentary work level and would allow the opportunity to change positions, i.e., from sitting to standing, as needed for comfort. As she was capable of performing work activity, Ms. Washington was no longer disabled as defined by her group policy and her claim was closed.
(See id. at 1-3.)
After obtaining and reviewing additional medical records, Standard informed Washington, in a letter dated March 13, 2003, that it had not changed its decision to close her file. (See id. Ex. 38.) The letter states, in relevant part:
Upon receipt of Ms. Washington's completed authorization form, we requested updated chart notes from Ms. Washington's treating physicians at Kaiser Permanente. Records were received from Dr. Bundy, occupational medicine, on November 19, 2002 and from Dr. Rodriguez, psychiatrist, on December 16, 2002. A medical consultant reviewed the medical information in the file and noted that the information in her claim file continues to indicate that she is not precluded from full time sedentary work. It is clear that she has chronic lower back discomfort related to degenerative disc disease and lumbar spinal stenosis. However, in his chart note dated August 9, 2002, Dr. Bundy has acknowledged that she can perform sedentary strength level occupations.
In reviewing Ms. Washington's numerous medical issues, the medical consultant noted that her chronic lymphocytic leukemia was stable as recently as October 24, 2002. Dr. Geddy recommended follow-up for 6 months. In addition, Ms. Washington's medication list included nothing stronger than Indomethacin (a common non-steroidal anti-inflammatory) for pain control.
As well, Ms. Washington's bipolar disorder appears to be stable with pharmacologic therapy, and should not produce any limitations or restrictions in regard to the performance of sedentary work.
Because no updated diagnostic studies have been performed, there is no indication that any new limitations or restrictions apply in this situation. Accordingly, the medical consultant opined that Ms. Washington is capable of performing the requirements of a full time sedentary level occupation at this time, unless there is additional medical information that would indicate otherwise.
This appears to be a reference to Gayatri P. Reddy, M.D. ("Dr. Reddy"), Washington's oncologist at Kaiser Permanente. In treatment notes dated October 24, 2002, Dr. Reddy noted that Washington had "stage 0 CLL" with "no indication for treatment at this time" and recommended that Washington return to the clinic in six months. (See Pl. Ex. 00997.)
(See id.)
Standard's Quality Assurance Unit informed Washington, in a letter dated April 11, 2003, that after an independent review of Washington's claim, it had concluded that Washington's decision to close Washington's claim was correct. (See Pl. Ex. 01042.) That letter states, in relevant part:
In your request for a review, you indicate that Ms. Washington feels her condition continues to deteriorate, and that she is unable to work without taking frequent breaks to lie down. Additional medical information was received from Kaiser Permanente, including chart notes from Drs. Reddy, Rodriguez and Bundy. We have reviewed this additional medical evidence with a board-certified physician consultant to determine whether this information in context with the information previously in the claim file supports that Ms. Washington meets the Any Occupation Definition of Disability.
Information from a psychiatrist, Dr. Rodriguez, reflects that Ms. Washington continues to receive treatment from him for her depression. His chart notes indicate that this condition has been stable. Medical information from an oncologist, Dr. Reddy, does not indicate an increase in symptoms related to Ms. Washington's chronic lymphocitic leukemia (CLL). There is no indication of further necessary treatment for this condition at this time. Updated chart notes from Dr. Bundy from August 9, 2002 indicated that she continued to have symptoms of low back pain and leg pain which presented difficulty for her with walking. She has been diagnosed with degenerative joint disease, and degenerative disc disease with stenosis.
The physician consultant noted that previous medical information from her examining physicians, including Drs. McClure and Conrad, and from Alpha Omega Pain Medicine Associates, indicates that she was found to be capable of at least sedentary level work, and that she was permanent and stationary. Dr. Bundy also indicated in an Attending Physician's Statement (APS) dated February 23, 2001 that he felt she was capable of sedentary level work. The physician consultant noted that medical information received since these physicians' examinations does not reflect a worsening in Ms. Washington's degenerative disc disease, degenerative joint disease and spinal stenosis. Although Dr. Bundy has recently indicated that Ms. Washington is capable of only very sedentary level work with the need to take frequent breaks to lie down and rest, the medical evidence does not support such a severe restriction. The physician consultant concluded that the medical evidence supports she would be able to perform sedentary level work not requiring significant standing and walking, as long as she has the ability to change positions and to stand up on an occasional basis in order to increase her comfort level.
The physician consultant also noted that there is no indication that either her depression or her CLL prevents her from performing sedentary level work. She receives treatment on only an intermittent basis for these conditions and there is no indication that they result in significant limitations.
* * *
. . . A vocational review has indicated that Ms. Washington is qualified for three sedentary level alternate occupations which have been identified. Please note that this was not an exhaustive list of all the alternate occupations Ms. Washington may be qualified for, but is only a sample of alternate occupations. Our review indicates that the medical information, as outlined above, supports that she is no longer able to perform the material duties required in the light level occupation as a Mail Processor due to the standing and walking that is required. However, our review indicates that the medical information continues to support that she retains the ability to perform sedentary level work on a full-time basis, as long as she can change positions on an occasional basis, and can stand up on an occasional basis from her sedentary position in order to increase her comfort level. Therefore, we find that she does not meet the Any Occupation Definition of Disability, and that the decision to close her claim with payment through January 22, 2002 is correct and must be upheld.
(See id. at 01042-43.)
In a memorandum to file dated April 14, 2003, Rick Whitesell, a disability claims analyst in Standard's Quality Assurance department, summarized a consultation with Dr. Bradley Fancher ("Dr. Fancher") with respect to Washington's claim. (See id. Ex. 39.) According to Whitesell, Dr. Fancher opined, after reviewing Washington's medical records, that Washington could work if she had a sedentary job where she could occasionally change positions or stand up while working. (See id.)
Washington filed the instant lawsuit on September 22, 2003.
DISCUSSION
I. WASHINGTON'S MOTION TO DETERMINE SCOPE OF REVIEW
Washington has filed a motion to determine the scope of the Court's review of Standard's decision to terminate Washington's disability benefits. Washington contends that the Court should apply a de novo standard of review, while Standard argues that the Court should review Standard's decision for abuse of discretion.
A. Legal Standard
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). When the Court applies the de novo standard of review, the district 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 Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999) (en banc) (citing Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir. 1995)).
If the benefit plan unambiguously gives the administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan, the district court reviews a denial of benefits for abuse of discretion. See id. "When courts apply the abuse of discretion standard, they generally limit review to the record before the plan administrator when making the benefits determination." Alford v. DCH Foundation Group Long-Term Disability Plan, 311 F.3d 955, 957 (9th Cir. 2002) (citing Taft v. Equitable Life Assurance Society, 9 F.3d 1469, 1471 (9th Cir. 1993)). "`Permitting a district court to examine evidence outside the administrative record would open the door to the anamolous conclusion that a plan administrator abused its discretion by failing to consider evidence not before it.'" Id. (quoting Taft, 9 F.3d at 1472).
B. The Policy
The Group Long Term Disability Insurance Policy Standard issued to CSAA provides:
Except for those functions which the Group Policy specifically reserves to the Policyowner, we have full and exclusive authority to control and manage the Group Policy, to administer claims, and to interpret the Group Policy and resolve all questions arising in the administration, interpretation, and application of the Group Policy.
Our authority includes, but is not limited to:
1. The right to resolve all matters when a review has been requested;
2. The right to establish and enforce rules and procedures for the administration of the Group Policy and any claim under it;
3. The right to determine:
a. Eligibility for insurance;
b. Entitlement to benefits;
c. Amount of benefits payable;
d. Sufficiency and the amount of information we may reasonably require to determine a., b., or c., above.
Subject to the review procedures of the Group Policy, any decision we make in the exercise of our authority is conclusive and binding.
(See Pl. Ex. 00008-00009.) The Ninth Circuit has held that the above-quoted policy language "clearly confers discretion on Standard to decide whether a claimant is disabled" and, thus, "the standard is abuse of discretion." See Bendixen v. Standard Ins. Co., 185 F.3d 939, 943 (9th Cir. 1999).
Washington argues that the continuing validity of Bendixen was called into question by the Ninth Circuit's subsequent decision in Ingram v. Martin Marietta Long Term Disability Income Plan for Salaried Employees of Transferred GE Operations, 244 F.3d 1109 (9th Cir. 2001). In Ingram, however, the Ninth Circuit established no new law and simply applied Firestone andKearney to the policy language at hand, which differed from the policy language at issue in both Bendixen and the instant case.See Ingram, 244 F.3d at 1113-14. As Bendixen also appliedFirestone and Kearney to the precise policy language at issue in the instant case, see Bendixen, 185 F.3d at 942-43, and that case has never been overruled, the Court will follow Bendixen.
Accordingly, the Court finds that the policy language "clearly confers discretion on Standard to decide whether a claimant is disabled" and, thus, absent any other legal basis for applyingde novo review, "the standard is abuse of discretion." See Bendixen, 185 F.3d at 943.
C. The Summary Plan Description
Washington further argues that the Court should apply de novo review because the policy language conflicts with the language set forth in the Summary Plan Description ("SPD"). Washington relies on the Ninth Circuit's decision in Bergt v. Retirement Plan for Pilots Employed by Mark Air, Inc., 293 F.3d 1139 (9th Cir. 2002), in which the Ninth Circuit held that when there is a conflict between a provision in the plan master document and a provision in the SPD, the provision that is more favorable to the employee controls. See id. at 1145.
In the instant case, however, there is no conflict between the policy language and the language of the SPD. Although the SPD does not include the policy language quoted above setting forth Standard's discretionary authority to administer the policy, it contains no language to the contrary. (See Pl. Ex. 01080-01095.) It simply does not address the issue. As there is no conflicting language in the two documents, Bergt has no application here. See, e.g., Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1321 (9th Cir. 1995) (holding SPD not required under ERISA to include plan language establishing discretionary authority of plan administrator).
D. Conflict of Interest
Washington also argues, assuming the policy language grants discretionary authority to Standard, that Standard operated under a conflict of interest that requires the Court to conduct a de novo review of Standard's decision to terminate Washington's benefits.
"[I]f a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a `facto[r] in determining whether there is an abuse of discretion.'" See Firestone, 489 U.S. at 115 (quoting Restatement (Second) of Trusts § 187, Comment d (1959)). The Court must apply "`heightened scrutiny' where the plan administrator has a conflict of interest by virtue of its economic stake in the benefit decisions which it makes."See Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1322 (9th Cir. 1995) (citing Watkins v. Westinghouse Hanford Co., 12 F.3d 1517, 1524 (9th Cir. 1993)). "The showing of a conflict does notautomatically eliminate the usual deference accorded to the plan administrator; rather, the plaintiff must show `that the conflict may have influenced the decision.'" Alford, 311 F.3d at 957 (quoting Lang v. Long-Term Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 798 (9th Cir. 1997));see also Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 876 (9th Cir. 2004) (noting that although "the claimant obviously has a financial interest in getting the money, while the plan has a financial interest in keeping it, that alone cannot establish conflict of interest in the administrator, because it would leave no cases in the class receiving deferential review under Firestone"). To make such a showing, the plaintiff must come forward with "material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary's self interest caused a breach of the administrator's fiduciary obligations to the beneficiary." See Alford, 311 F.3d at 957 (internal quotation and citation omitted). If the plaintiff fails to do so, the Court reviews for abuse of discretion. See Atwood, 45 F.3d at 1323. "If the plaintiff makes [the] required showing, the plan then bears the burden of rebutting the presumption by producing evidence to show that the conflict did not affect its decision to deny benefits." Alford, 311 F.3d at 957. "If the plan fails to do so, the court should review [the] denial of benefits de novo." Id.
An apparent conflict of interest exists in the instant case because the insurance policy is both issued and administered by Standard. See Bendixen, 185 F.3d at 943; see also Pl. Ex. 00009. Consequently, the Court must determine whether Washington has submitted "material, probative evidence, beyond the mere fact of the apparent conflict, tending to show that the fiduciary's self interest caused a breach of the administrator's fiduciary obligations to the beneficiary." See Alford, 311 F.3d at 957 (internal quotations omitted).
1. Alleged Failure to Consider Treating Physicians' Opinions
Washington's first argument in support of de novo review is that Standard refused to consider the opinions of her treating and consulting physicians. The Supreme Court has held that "[p]lan administrators, of course, may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician." See Black Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003). The Court has also held, however, that "courts have no warrant to require administrators to accord special weight to the opinions of a claimant's physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician's evaluation." See id. at 834.
The Ninth Circuit has interpreted Nord as "quite plainly hold[ing] that a treating physician's opinion gets no special weight and can be rejected on the basis of reliable evidence with no discrete burden of explanation." See Jordan, 370 F.3d at 879. "Nord does not set out any new framework for reviewing administrator's denials." Id. "Rather, it rejects [the Ninth Circuit's] treating physician rule and otherwise leaves ERISA review alone, thus prohibiting [courts] from overturning discretionary decisions by administrators because they failed to defer to treating physicians' opinions." Id. Although an administrator's refusal to consider the opinions of a claimant's physician may constitute a breach of fiduciary duty, its consideration and rejection of those opinions cannot constitute such a breach. See id. at 877.
As set forth above, Standard considered the medical evidence in Washington's file at great length. Although Standard ultimately concluded the evidence did not demonstrate that Washington was disabled from all occupations, it did not ignore the opinions of Washington's treating physicians.
2. Alleged Failure to Apply California Law With Respect to Definition of "Total Disability From Performing Any Occupation"
Washington's next argument is that Standard failed to apply California law with respect to the definition of "total disability from performing any occupation." The Ninth Circuit has held that when a plaintiff submits evidence that an insurer applied an incorrect definition of disability in denying the plaintiff's claim, the plaintiff has submitted sufficient evidence to create a rebuttable presumption that the insurer's decision was affected by its conflict of interest. See Tremain v. Bell Industries, Inc., 196 F.3d 970, 977 (9th Cir. 1999).
In Tremain, however, the insurer applied the definition of disability from the wrong policy; a failure to apply the definition of disability required under state law was not at issue.
In Moore v. American United Life Ins. Co., 150 Cal. App. 3d 610 (1984), a California Court of Appeal held that "[w]hen coverage provisions in general disability policies require total inability to perform `any occupation,' the courts have assigned a common sense interpretation to the term `total disability' so that total disability for purposes of coverage results whenever the employee is prevented from working `with reasonable continuity in his customary occupation or in any other occupation in which he might reasonably be expected to engage in view of his station and physical and mental capacity.'" See id. at 618 (quoting Erreca v. West. States Life Ins. Co., 19 Cal. 2d 388, 394-95 (1942)). This test "requires that the real-world employment marketplace be considered in determining whether an insured is `totally disabled.'" See id. at 630. "One with a serious disability who cannot reasonably find work cannot work `with reasonable continuity.'" Id. "[T]he actual employment prospects of the insured are to be considered" because "the ability of an insured to work cannot be rationally divorced from a consideration of the market for the insured's skills or services." See id. (emphasis in original).
In the instant case, the policy sets forth the following definition of disability from any occupation:
During the Any Occupation Period you are required to be Disabled from all occupations.
You are Disabled from all occupations if, as a result of Physical Disease, Injury, Pregnancy, or Mental Disorder, you are unable to perform with reasonable continuity the Material Duties of any gainful occupation for which you are reasonably fitted by education, training and experience.
(See Pl. Ex. 00017.)
Washington argues that Standard failed to consider her actual employment prospects in light of her limitations. The parties dispute whether the Moore/Erreca standard for total disability applies in ERISA cases, or whether it is subject to ERISA preemption. The Court need not decide the issue, however, because plaintiff has submitted no evidence that Standard failed to apply the standard in rejecting her claim. Moreover, in concluding that Washington could perform the positions of maintenance service dispatcher, appointment clerk, check cashier, and telemarketer, the December 16, 2001 vocational assessment upon which Standard relied expressly considered the relevant labor market and the occupation outlook for each such position. (See Whitesell Decl. Ex. 19.) Standard also repeatedly stated, in its letters to Washington, that each of those occupations was "within the sedentary work level and would allow the opportunity to change positions, i.e., from sitting to standing, as needed for comfort." (See id. Ex. 32 at 3; see also Pl. Ex. 01042-43.)
Thus, even assuming the Moore/Erreca standard for total disability applies in ERISA cases, plaintiff has not demonstrated that Standard failed to apply it.
3. Alleged Inconsistent Positions
Washington further argues that Standard took inconsistent positions with respect to Washington's entitlement to disability benefits because her condition did not change between the time disability benefits were granted and the date they were terminated. The Ninth Circuit has held that "evidence of inconsistency in the administrator's dealings with the beneficiary [is] material evidence of its self-interested behavior[.]" See Regula, 266 F.3d at 1146 (citing Lang, 125 F.3d at 799); see also id. (expressing concern that insurer suddenly terminated benefits without any evidence that insured's condition had changed).
As noted, Standard, in a letter dated April 23, 1999, informed Washington that it had determined that she "could not perform with reasonable continuity the material duties of any occupation, which [she has] the education, training and experience to perform" and that, consequently, Washington remained eligible for long-term disability benefits. (See Whitesell Decl., Ex. 12.) Standard notified Washington that it would periodically review her claim and eligibility for benefits. (See id.) In a letter dated January 15, 2002, Standard informed Washington that it was terminating her disability benefits because it had concluded that the medical documentation in her claim file supported the finding that her condition had stabilized and that each medical condition alone or in combination would not preclude her from returning to full time sedentary work. (See id. Ex. 20.)
Contrary to Washington's argument, Standard received new evidence after April 23, 1999, indicating that Washington could perform sedentary work. In a May 10, 1999 report, which Standard received on September 11, 2000, Dr. Conrad opined that Washington was precluded only from heavy work. (See Pl. Ex. 00798.) In Dr. Brose's May 11, 1999 report, he found it "clear that from a musculoskeletal perspective, Ms. Washington is capable of performing work with some reasonable levels of productivity." (See Whitesell Decl. Ex. 13 at 6.) Although Dr. Ramirez, Washington's treating psychiatrist, stated that "when one integrates her antihypertensive management and her psychiatric management, which are both non-industrial in nature, the patient's ability to compete in the open labor market is severely impaired," (see id. at 7), he further stated that she did not suffer from any psychiatric disability. (See id. Ex. 15.) In an attending physician's statement dated September 18, 2000, Dr. McClure stated that although Washington had repeatedly failed in her attempts to return to work, she might be able to return to work if she had a shortened work day in a position that involved no lifting, and allowed her to alternate sitting, standing, and walking. (See Whitesell Decl. Ex. 14 at 2.) In an attending physician's statement dated February 23, 2001, Dr. Bundy stated that he anticipated Washington could return to work by June 1, 2001, although she was "unlikely to return to any job above sedentary." (See id. Ex. 17.) On December 7, 2001, Standard's Nurse Case Manager reviewed the medical records and concluded that Washington could perform full-time sedentary work. (See id. Ex. 18.) On December 26, 2001, a Standard Vocational Case Manager also concluded that Washington could perform sedentary work, and identified specific jobs that Washington could perform. (See id. Ex. 19.)
Prior to April 23, 1999, in contrast to the above, Standard had information that suggested Washington was suffering from a greater level of disability. In a letter dated November 6, 1997, Dr. McClure stated that "it is unlikely that CSAA could provide accommodation as a mail processor that would permit her to work in any capacity with her current level of pain." (See id. Ex. 9 at 4.) He noted that Washington's condition was not yet permanent and stationary, but concluded that "[s]he remains temporarily totally disabled with the expectation that there will be a permanent significant disability[.]" (See id.)
Because Standard received new information after April 23, 1999, suggesting that Washington could perform work in sedentary occupations, Standard's April 23, 1999 approval of benefits and its January 15, 2002 termination of benefits were not inconsistent.
4. Alleged Failure to Timely Complete Review
Washington's final argument for application of de novo review as a result of Standard's conflict of interest is that Standard failed to timely issue a decision on her request for review. Washington's policy with Standard provides:
We will review your claim promptly after we receive your request. We will send you a notice of our decision within 60 days after we receive your request, or within 120 days if special circumstances require an extension.
(See Pl. Ex. 00009.) Washington requested review of Standard's termination of her benefits in a letter dated February 25, 2002. (See Whitesell Decl. Ex. 26.) Standard's decision on that request for review was contained in a letter dated March 27, 2002, well within the time period set forth in the policy. Washington complains, however, that Standard's review was nonetheless untimely because it agreed to reopen her request for review on October 8, 2002, but did not issue a decision until March 13, 2003, more than 120 days thereafter. (See id. Exs. 31 and 38.)
In Jebian v. Hewlett-Packard Company Employee Benefits Organization Income Protection Plan, 349 F.3d 1098 (9th Cir. 2003), the plaintiff sought review of the defendant's denial of benefits under a plan that provided that a claim would be deemed denied on review if the defendant neither responded within sixty days nor informed the claimant that it could take up to sixty days longer to respond. See id. at 1102. The defendant first responded to the plaintiff 119 days after the request for review was submitted, but left the appeal pending to consider further medical documentation. See id. Three months later, the defendant wrote to the plaintiff again, stating it was still awaiting certain medical records and that the appeal remained pending. See id. Three months later, approximately ten months after filing his request for review, the plaintiff filed suit in district court. See id. Approximately one month later, the defendant finally issued a decision on the request for review and denied the claim for benefits. Id.
The Ninth Circuit noted that the plan and the ERISA regulations in effect at the time the claim was submitted both provided that claims were deemed denied if not addressed within the requisite time period. See id. The Ninth Circuit concluded that "where, according to plan and regulatory language, a claim is `deemed . . . denied' on review after the expiration of a given time period, there is no opportunity for the exercise of discretion and the denial is usually to be reviewed de novo," although "deference may be due to a plan administrator that is engaged in a good faith attempt to comply with its deadlines when they lapse."See id. at 1103. "Deference to an exercise of discretion requires discretion actually to have been exercised." See id. at 1106.
Jebian is distinguishable because, in that case, the insurer issued no decision within the requisite time period; in the instant case, by contrast, Standard timely issued a decision on Washington's initial request for review. Thus, in the instant case, Standard's discretion actually was exercised in a timely manner. After doing so, Standard voluntarily agreed to consider any additional evidence that Washington wished to submit. Although Standard took more than 120 days to consider such evidence, it ultimately affirmed its initial decision long before Washington filed suit in this Court.
Neither the plan language nor ERISA requires an insurer to reopen its decision on review, nor to complete any such additional review within any particular time period. Here, unlike in Jebian, Standard issued a timely decision on review to which the Court may defer. Accordingly, the Court finds thatJebian has no application here, and does not require the Court to apply de novo review in the instant matter.
E. New Position of California Department of Insurance with Respect to Discretionary Clauses in Disability Insurance Policies
Washington argues that de novo review is required because the California Department of Insurance ("Department") has revoked approval of discretionary clauses in disability insurance policies. On February 26, 2004, the Department issued a letter opinion, pursuant to California Insurance Code § 12921.9, stating that "all . . . discretionary clauses in disability insurance contracts violate California law and deprive insureds of protections to which they are entitled." (See Motion, Ex. A at 1.) The Department stated that it would "withdraw any approval of any disability forms known to contain such discretionary clauses" pursuant to California Insurance Code §§ 10291.5(f) and 12957. (See id.) The Department defined "discretionary clauses" to include "any contract provisions or language that purport to confer on the insurer discretionary authority to determine eligibility for benefits or to interpret the terms or provisions of the contract." (See id.) The letter opinion also opined that "ERISA does not preclude California's authority to prohibit the use of discretionary clauses in insurance contracts." (See id. at 2.)
On February 27, 2004, the Department issued a "Notice to Withdraw Approval" in which the Insurance Commissioner states that he "withdraws any approval of the forms listed [therein] for the reason that the forms contain Discretionary Clauses," effective 91 days after the mailing of [the] notice unless, within 30 days of the mailing of [the] notice, an adversely affected insurer requests a hearing." (See id. Ex. B. at 1.) The Notice did not identify any of Standard's insurance forms, however. Thus, by its terms, the Notice did not revoke approval of any of Standard's insurance policies.
The Notice did, however, request all insurers licensed in California to submit a list of any forms currently offered to California insureds that include discretionary clauses. (See id. at 3.)
Moreover, even if the Department had revoked approval of Standard's disability policies, such revocation would have been prospective only. See Firestone v. Acuson Corp. Long Term Disability Plan, 2004 U.S. Dist. LEXIS 12247 at *24 (N.D. Cal. July 2, 2004) (citing Cal. Ins. Code § 10291.5(f)). As the Department has not revoked the Standard disability policy at issue, and such revocation would operate only prospectively, Washington has not demonstrated that the Department's letter opinion requires the Court to apply de novo review in the instant case.
For the same reason, the Court need not determine whether the Department's view of the legality of discretionary clauses is preempted by ERISA.
F. Conclusion
For the reasons set forth above, Washington's motion for application of de novo review is DENIED, and the Court will review Standard's decision for abuse of discretion.
II. WASHINGTON'S MOTION FOR SUMMARY JUDGMENT
A. Legal Standard
Rule 56(c) of the Federal Rule of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. The Court may not weigh the evidence. See id. at 255. Rather, the nonmoving party's evidence must be believed and "all justifiable inferences must be drawn in [the nonmovant's] favor." See United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir. 1989) (en banc) (citing Liberty Lobby, 477 U.S. at 255).
The moving party bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, interrogatory answers, admissions and affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact.See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where, as here, the nonmoving party will bear the burden of proof at trial, the moving party's burden is discharged when it shows the court there is an absence of evidence to support the nonmoving party's case. See id. at 325.
A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of [that] party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." See Fed.R.Civ.P. 56(e); see also Liberty Lobby, 477 U.S. at 250. The opposing party need not show that the issue will be resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248-49. All that is necessary is submission of sufficient evidence to create a material factual dispute, thereby requiring a jury or judge to resolve the parties' differing versions of the truth at trial. See id.
B. The Merits
When reviewing a plan's decision for abuse of discretion, the Court may not substitute its judgment for that of the administrator. See Jordan, 370 F.3d at 875. The Ninth Circuit has held that "a decision `grounded on any reasonable basis' is not arbitrary or capricious. See id. (quoting Horan v. Kaiser Steel Retirement Plan, 947 F.2d 1412, 1417 (9th Cir. 1991)) (emphasis in original). "[I]n order to be subject to reversal, an administrator's factual findings that a claimant is not totally disabled must be `clearly erroneous.'" See id. (quoting Jones v. Laborers Health Welfare Trust Fund, 906 F.2d 480, 482 (9th Cir. 1990)). "[A]s long as the record demonstrates that there is a reasonable basis for concluding that the medical condition was not disabling, the decision cannot be characterized as arbitrary, and [the court] must defer to the decision of the plan administrator." Id. at 879-80.
Some of Washington's earlier medical records had suggested that Washington's medical conditions might preclude her from being able to work full-time. For example, in a June 17, 1997 letter, Dr. Schofferman stated that if his treatment was successful, he would suggest that Washington return to work "in a sitting job, four hours per day, with a good ergonomic chair, and see how she does." (See Whitesell Decl. Ex. 5.) In a supplemental report dated November 17, 1997, Dr. McClure noted that Washington had tried unsuccessfully to return to work several times, was unlikely to be able to return to work as a mail processor, and likely would suffer a "permanent significant disability." (See id. Ex. 9.) On the other hand, Dr. Trauner concluded, in a report dated March 18, 1997, that "Washington could return to modified duties" because "[s]he is apparently able to sit and sort mail and . . . should be able to continue to do so." (See id. Ex. 4.)
Much of the more recent medical evidence in Standard's possession, however, indicates that Washington has the ability to perform some work despite her medical conditions, and despite her inability to return to her prior work as a mail processor. Dr. Conrad's May 10, 1999 letter states that "Washington's level of permanent disability, as it relates to the lumbar spine is consistent with the preclusion for heavy work." (See Pl. Ex. 00798.) In Dr. Brose's May 11, 1999 report, he states that "from a musculoskeletal perspective, Ms. Washington is capable of performing work with some reasonable levels of productivity." (See Whitesell Decl. Ex. 13 at 6.) Although Dr. Brose felt that Washington's psychiatric condition would severely impair "her ability to compete in the open labor market," (see id. at 7), Washington's treating psychiatrist, Dr. Rodriguez, opined that Washington did not have a psychiatric disability. (See id. Ex. 15.) In Dr. Bundy's February 16, 2001 attending physician's statement, he opined that he anticipated Washington could return to work on June 1, 2001, although she was "unlikely to return to any job above sedentary," thereby indicating that Washington could perform sedentary work. (See id. Ex. 17.) Standard's own Nurse Case Manager and Vocational Case Manager also concluded, after reviewing the medical evidence, that Washington could perform certain sedentary positions. (See id. Exs. 18 and 19.)
Dr. McClure, on the other hand, in an attending physician's statement dated September 18, 2000, opined that Washington might be able to work if she were permitted to work a shortened work day in a position that required no lifting, and allowed her to alternate sitting, standing, and walking. (See id. Ex. 14.) This statement suggests that in Dr. McClure's opinion, Washington could not work a full 8-hour day. Additionally, in a letter dated July 18, 2002, Dr. Bundy opined that if Washington "were to seek gainful employment it would have to be a very sedentary type of activity where she could control her own pace and be able to take frequent breaks to lie down and rest." (See id. Ex. 30.)
Standard found that the medical evidence did not support a conclusion that Washington could not perform full-time sedentary work. The Court notes, as was observed in Jordan, "[s]omebody has to make a judgment as to whether a medical condition prevents a person from doing her work, and the governing instrument assigns the discretion to the claims administrator." See Jordan, 370 F.3d at 878. In light of the totality of the medical evidence, the Court finds no abuse of discretion in Standard's decision.
Washington's final argument is that Standard failed to explain the information she needed to submit in order to prevail on her request for review. The Ninth Circuit has held that "[a] plan administrator must furnish a person whose claim has been denied with `a description of any material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary.'" See Jordan, 370 F.3d at 881 (quoting 29 C.F.R. § 2560.503-1(f)). Denying a claim "without explanation and without obtaining evidence of the claimant's rational explanation" for an apparent, and dispositive, deficiency in her submission may constitute abuse of discretion. See id. at 881.
In the instant case, Standard provided Washington with numerous, detailed, written statements explaining why it had decided to terminate her benefits. In addition, Standard expressly informed Washington that it would consider any additional medical evidence Washington wished to submit. Indeed, in Standard's initial letter informing Washington that it was terminating her benefits, dated January 15, 2002, Standard, after setting forth the basis for its determination, informed Washington: "If you request a review, it would be helpful for you to provide any information you, your physician, or any other person may have supporting that your limitations and restrictions are greater than those understood by Standard." (See Whitesell Decl. Ex. 20.) Moreover, Washington does not identify any information she failed to submit that would have made a difference in the outcome. See Jordan, 370 F.3d at 881 (rejecting claim that plan failed to provide adequate notice of evidence needed to establish claim where plaintiff failed to identify evidence she could have submitted that would have made a difference).
CONCLUSION
For the reasons set forth above,
1. Washington's Motion to Determine Scope of Review, seekingde novo review of Standard's termination of her long-term disability benefits, is DENIED.
2. Standard's motion for summary judgment is GRANTED.
The Clerk shall terminate any pending motions and close the file.