Biggar v. Prudential Ins. Co. of Am.

274 F.Supp.3d 954

Jonathan BIGGAR, Plaintiff,

v.PRUDENTIAL INSURANCE COMPANY OF AMERICA, et al., Defendants.

Case No. 15–cv–04825–JST

United States District Court, N.D. California.

Signed August 11, 2017

Scott D. Kalkin, Esq., Roboostoff & Kalkin A Professional Law Corporation, San Francisco, CA, for Plaintiff.

Sevana Babooian, Linda Marie Lawson, Meserve Mumper & Hughes LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING JUDGMENT FOR DEFENDANTS

Re: ECF Nos. 49, 50

JON S. TIGAR, United States District Judge

Before the Court are the parties' cross motions for summary judgment. ECF Nos. 49, 50. The Court will grant judgment for Defendants.

I. FACTUAL FINDINGS

A. Biggar's Employment at Google

Until 2013, Plaintiff Jonathan Biggar was a Senior Software Engineer at Google. ECF No. 50 at 6; ECF No. 49 at 8. In that role, Biggar "enhance[ed] and maintain[ed] the automation software that manages the repair progress for Google's datacenter computers." Administrative Record¹ ("AR") 1179–92. More specifically, Biggar had the following responsibilities:

- Act as tech lead for small to medium-size project; of moderate complexity and impact; in that role manage project priorities and technical resources, may manage people

- Contribute substantially to re-design of applications to improve maintenance cost, testing functionality, platform independence and performance

- Independently design medium or large-size projects that are a part of a multi-system project

- Contribute to core team processes and contribute code to efforts outside own project, including those with Google wide impact

- Support, maintain and upgrade code and participate in necessary redesign and reimplementation of existing components

AR 859.

As a Google employee, Biggar participated in the Google Inc. Welfare Benefits Plan ("the Plan"). AR 231–97. The Plan includes a Long Term Disability Coverage Policy ("LTD Policy"), which provides coverage under the following conditions:

You are totally disabled when as a result of your sickness or injury:

• you are unable to perform with reasonable continuity the substantial and material acts necessary to pursue your usual occupation; and

• you are not working in your usual occupation .

After 24 months of payments, you are totally disabled when, as a result of the same sickness or injury, you are unable to engage with reasonably continuity in any occupation in which you could reasonably be expected to perform satisfactorily in light of your age, education, training, experience, station in life, and physical and mental capacity.

AR 2003.² The Plan contains the following key definitions:

Substantial and material acts means the important tasks, functions and operations generally required by employers from those engaged in your usual occupation that cannot be reasonably omitted or modified. In determining what substantial and material acts are necessary to pursue your usual occupation, we will first look at the specific duties required by your Employer or job. If you are unable to perform one or more of these duties with reasonable continuity, we will then determine whether those duties are customarily required of other employees or individuals engaged in your usual occupation. If any specific, material duties required of you by your Employer or job differ from the material duties customarily required of other employees or individuals engaged in your usual occupation, then we will not consider those duties in determining what substantial and material acts are necessary to pursue your usual occupation.

Usual occupation means any employment, business, trade or profession and the substantial and material acts of the occupation you were regularly performing for your Employer when the disability began. Usual occupation is not necessarily limited to the specific job you performed for your Employer.

AR 2003–04.

B. Biggar's Parkinson's Disease Diagnosis

In 2007, Biggar began experiencing a tremor in his left arm and pain in his right shoulder and was diagnosed with Parkinson's Disease. AR 82. Dr. Grace Liang of the Parkinson's Institute in Mountain View began treating Biggar in 2009. AR 982–83. Dr. Liang's initial exam in 2009 reported coordination problems with Biggar's left hand that impacted his typing abilities, frequent tremors, problems with his balance, and sleepiness due to his medications, among other things. AR 982. Dr. Liang summarized that Biggar was "generally able to function well, though having some degree of impairment in fine motor skills and coordination, balance." AR 983. She prescribed several medications to try to alleviate Biggar's symptoms. Id.

Biggar claims his disease progressed steadily following his diagnosis. For example, in May 2010, Dr. Liang's notes report that Biggar was "[n]oticing a little more tremor." AR 1106. Then, in September 2010, Liang wrote that Biggar's "[t]remor is a little more intense recently....Wife finds it progressively worse....Voice quieter, mumbling, has to repeat sometimes." AR 1176. By 2012, Biggar claims that he was "experiencing a number of symptoms (sleep disturbance, attention deficit and memory trouble, appetite problems and depression) that are caused by Parkinson's Disease that adversely affected [his] ability to perform [his] job." AR 1181. Dr. Liang's notes in 2012 reinforce this progression. AR 1172 ("[P]atient has experienced some more progression."); AR 1168 ("Since last visit, patient has had some increased symptoms."). Nonetheless, her examinations³ during this time note that Biggar had "normal" mental status and motor strength. E.g., AR 1173.

According to Biggar, his symptoms worsened substantially in 2013, when he began "experiencing significant problems with tremors and rigidity in [his] upper and lower extremities, difficulties with mobility, impaired ability to concentrate, decreased ability to write and type on a computer, and related symptoms of depression." AR 1182. Biggar visited Dr. Liang multiple times in early 2013 and her notes give conflicting descriptions of his condition. In January 2013, Liang reported that "[s]ince last visit, patient has had more tremors overall." AR 1161. But she also concluded that "[e]verything else ok in terms of mobility, walking" and summarized Biggar's "[s]ymptoms [as] fairly stable, perhaps slightly more tremor but still able to function overall fairly well." Id. Dr. Liang saw Biggar again in February 2013. She explained that Biggar reported "experience[ing] more trouble with performance at work, partly b/c the sleepiness in the afternoon." AR 1157. She also recounted Biggar's "frustration b/c hand is slowing, locking up clicking the mouse." Id. Both his tremor and his depression had increased since the last visit. Id. Indeed, Dr. Liang in her general examination noted moderate tremors in Biggar's left hand and mild tremors in his right hand. AR 1158. At this appointment Liang also discussed with Biggar the possibility of Deep Brain Stimulation Surgery ("DBS") as a method for reducing his current symptoms. Id. ⁴

In addition to seeing Dr. Liang for treatment of his Parkinson's Disease, Biggar also saw Dr. Minyang Mao, a psychiatrist, for depression. AR 327. Unfortunately, Dr. Mao's notes documenting his visits with Biggar are nearly impossible to read. E.g., AR 860. A doctor retained by Defendants as a part of this appeal spoke with Dr. Mao, however, and summarized his conversation as follows:

Dr. Mao stated that he had seen the claimant for 33 sessions from 6/2014–6/2015. He states that claimant had as much objective evidence of depression "as is possible in psychiatry." The claimant had inconsistent grooming, had psychomotor retardation, loss of weight, often sat with a blank state and continued to express apathy with poor concentration and admitted to not doing household chores or paying bills.

AR 1233. Dr. Mao also stated that Biggar received an evaluation at Stanford that confirmed this diagnosis, but Biggar never provided those records to Defendants. AR 1233.

C. First Work Absence and LTD Benefits Request

On March 25, 2013, Biggar stopped working and submitted a claim to Defendant Prudential Insurance Company of America ("Prudential") under the LTD Policy. AR 591–93. Dr. Liang submitted an Attending Physician Statement ("APS") in support of Biggar's claim, which listed the following "medical facts" related to Biggar's condition:

Impaired motor skills due to tremors + pain, unable to use keyboard/computer. Unable to remain alert during daytime working hours due to insomnia. Unable to sit or stand for extended periods. Debilitating depression related to Parkinson's Disease and stress and pressures of work causing effects on sleep, appetite, concentration.

AR 18. Dr. Liang recommended that Biggar "[r]eturn to work after appropriate therapies + pending future assessment." Id. Dr. Mao also submitted an APS, listing Biggar diagnosis as Major Depressive Disorder. AR 111–13. On November 27, 2013, Prudential approved Biggar for long-term disability benefits. AR 1286–92. During his absence from work, Biggar had the DBS surgery referenced above. AR 60–97.

D. Biggar's Return to Work

On February 17, 2014, Biggar returned to work part time. AR 461–62. His first post-DBS surgery appointment with Dr. Liang took place on February 24, 2014. AR 1133. According to Dr. Liang, Biggar reported that the surgery had some positive effects but did not fully resolve his symptoms: "The tremor is almost all gone, was worse on the left, and cramping is much improved. His balance has not improved, but he is moving around more. After being quiet for awhile he has minor trouble with speech. His finger coordination is not as good, esp when typing." AR 1133. Hoping that the DBS surgery had significantly reduced his symptoms, Biggar began working full time on April 14, 2014. AR 451–52.

E. Second Work Absence and LTD Benefits Request

Biggar's condition was not as improved as he had hoped, however, and on June 3, 2014, he again left work. AR 114–19. At the time, Biggar said he expected...