YOLANDA RIOS, Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY ET AL, Defendant.
CASE NO. SA CV 19-04100-DOC-(SKx)
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
December 10, 2020
FINDINGS OF FACT, CONCLUSIONS OF LAW, TRIAL ORDER and JUDGMENT
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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 has accepted their stipulation, to de novo review. | 1.) DKT 31,32 |
| 2.) The plan in this matter, Arnold & Porter Kaye Scholer, L.L.P. Welfare Benefit Plan and Individual Disability Income Policy, insured by Unum (collectively | 2.) Policy Ex. 2, 000061, Ex. 3, 002920 |
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| "Policy"), is an employee welfare benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132 ("ERISA"). | |
| 3.) The Policy provides benefits to eligible qualifying participants, which includes Plaintiff, in the event they become "disabled" within the meaning of the Policy. | 3.) Id. |
| 4.) Under the Policy, a claimant is disabled when limited from performing the material and substantial duties of your Regular or Usual Occupation. | 4.) Id. |
| 5.) After 24 months, a claimant is disabled when unable to perform the duties of "any occupation" or "any gainful occupation." | 5.) Id. |
| 6.) Regular or Usual Occupation means your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer at a specific location. | 6.) Policy Def. Reg./Usual Occ. Ex. 4, 000083, 002920 |
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| 7.) Plaintiff's job at a large law firm, Arnold & Porter, as a User Support Specialist, required legal typing and constant sitting. | 7.) Job Description Ex. 5 000121 to 000122 |
| 8.) Plaintiff's job was sedentary, and in addition to constant sitting, required Concentration ("ability to focus on a task for some length of time"), and Logical Thinking ("ability to use reasoning consistently ..."). | 8.) Id. |
| 9.) Plaintiff's Regular or Usual Occupation in the national economy was described by Unum's vocational consultant, Ms. Mary Cloutier, as sedentary and "constantly sitting," meaning "5.5+ hours in an 8 hour day." | 9.) Cloutier's Voc. Report 9.21.18 Ex. 6 002257 to 002259 |
| 10.) Plaintiff's Regular or Usual Occupation in the national economy was sedentary and required "focus and concentration." | 10.) Id. |
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| 11.) Yolanda's first MRI of the lumbar spine, on November 14, 2015, when she was still working, showed foraminal narrowing, a 3-4 mm disc protrusion at L3/4, and a 4-5 mm protrusion at L4/5. | 11.) MRI Lumbar Spine Ex. 16 11.14.15 002759 |
| 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 nerve root, disc bulge at L2-3, disc/osteophyte complex at L4-5, foraminal stenosis at L3-4 and L4-5, and an annular fissure at L4-5. (New findings from 2015 to 2018 are underlined.) | 12.) MRI Lumbar Spine Ex. 10 3.19.18 003891 |
| 13.) Lumbar x-rays, on March 12, 2018, showed "severe" disc narrowing at L4/5. | 13.) X-ray Report 3.12.18 Ex. 15, 001239 |
| 14.) Plaintiff's primary disabling condition, as supported by her x-ray, MRI, and clinical findings, is back and leg pain (sciatica) related to multi-level | 14.) See: ¶¶ 12, 13, supra |
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| degenerative lumbar disc disease, stenosis, radiculopathy, and "severe disc narrowing at L4/5." | |
| 15.) On July 13, 2018, Unum initially approved and paid long-term disability benefits under the IDI Policy, and on July 16, 2018, under the LTD Policy. Unum advised Rios that approval was based on diagnoses of anxiety and depression rather than physical impairment. Unum agreed to further evaluate Rios' physical complaints. | 15.) Unum's Approval Letters Ex. 11 7.13.18, 002089; 7.16.18, 002107; AR 2108 |
| 16.) On September 26, 2018, Unum terminated the benefits it had been paying under both the IDI and LTD Policies after determining that Rios was not entitled to further benefits under the Policies. | 16.) Unum's Term. Letter 9.26.18 Ex. 19 002267-002274 |
| 17.) Unum terminated benefits, in part, on the basis of a vocational report from its in-house vocational specialist, Ms. Mary Cloutier, who, on September 21, | 17.) Cloutier's Voc. Report 9.21.18 |
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| 2018, described Plaintiff's Regular or Usual Occupation in the national economy as "sedentary." | Ex. 6; 002258 |
| 18.) Unum further indicated at the time of its termination of benefits, on September 26, 2018, that Plaintiff's sedentary occupation in the national economy allowed her "the opportunity to stand and stretch and ... to briefly walk around the office ... (and) ... change positions intermittently as needed," so as to ease her pain and enable her to work. | 19.) Term. Let. 9.26.18 Ex. 19 002270 |
| 19.) Dr. Malhis was a treating doctor (orthopedist) on September 26, 2018, at the time of Unum's termination of benefits, and on March 12, 2018, he documented that sitting, walking, and standing-up aggravated Plaintiff's pain, while rest improved it. | 20.) Malhis' Rec. Ex. 12 003894 |
| 20.) Dr. Hafezi was a treating doctor (pain specialist) on September 26, 2018, at the time of Unum's termination of benefits, and on September 19, 2018, he | 21.) Hafezi's Rec. Ex. 13 003855, |
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| 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, documented that sitting and standing aggravated her pain, while lying down and resting eased it. | 22.) PT Rec. Ex. 14 003909-003910 |
| 22.) Mr. Edward Estrada was Plaintiff's Physician- Assistant (PA) on September 26, 2018, at the time of Unum's termination of benefits, and on July 30, 2018, he documented "severe left knee pain and swelling" and that Plaintiff "is having a hard time walking, is mainly limping x4 days ... weight-bearing and walking make pain worse and rest helps it." | 23.) Estrada's Rec. Ex. 18 003866 |
| 23.) Unum also based its termination of benefits on a Physician-Assistant Mr. Estrada's determination that "patient shouldn't sit or stand for prolonged (>1 hr) periods of times." (sic) | 24.) Estrada Rec. Ex. 18 003710 |
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| 24.) Mr. Estrada did not indicate the total length of time Plaintiff could sit or stand in an 8-hour workday, but he did indicate that Rios "should not be required to stay in a fixed position (sitting or standing) for more than an hour at a time before being allowed to change position." | 25.) Id. AR 2251 |
| 25.) On September 26, 2018, Unum terminated Plaintiff's benefits under both the IDI and LTD Policies. | 26.) Ex. 19 002267-002268 |
| 26.) On February 25, 2019, Plaintiff appealed Unum's claim termination decision on the basis that it was contrary to the facts in the first instance and incorrectly taken. | 27.) Pl.'s Appeal Let. 2.25.19 Ex. 23 003720 |
| 27.) On April 11, 2019, Unum denied Plaintiff's appeal. | 28.) Unum Appeal Denial Letter 4.11.19 Ex. 22 |
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| 002669 | |
| 28.) Unum's appeal denial decision was based in large part on a medical report from its in-house medical reviewer, Dr. Scott Norris. Unum also considered the opinions of its Medical Consultants: Alex Ursprung, Ph.D, Stuart Shipko, M.D., Joseph Antaki, M.D., and Peter Brown, M.D. | 29.) Norris' Report 3.25.19 Ex. 20 002632 to 002633 |
| 29.) Dr. Norris is a "family and occupational medicine" doctor and not an orthopedic surgeon or pain specialist. | 30.) Id. |
| 30.) Dr. Norris did not examine Plaintiff but performed a paper review on March 25, 2019 and concluded that "the mild to moderate findings noted on examinations and diagnostic testing/imaging do not support ongoing impairment that would preclude work." | 31.) Id. 002633 |
| 31.) Unum's in-house nurse reviewer, Ms. Malan- | 32.) Nursing Report |
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| Elzawahry, performed a paper review on March 12, 2019 and concluded that "the insured's reported level of pain is above that expected with the radiographic changes described." | 3.12.19 Ex. 21 002605 |
| 32.) In making their pain assessments favoring non-disability, neither Dr. Norris nor Nurse Malan-Elzawahry examined or treated |
