stating that a claimant’s subjective “testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence,” but acknowledging that such testimony could be discounted where there are “grounds for questioning [the claimaint’s] credibility”
How later courts described this case
- stating that a claimant’s subjective “testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence,” but acknowledging that such testimony could be discounted where there are “grounds for questioning [the claimaint’s] credibility”
- abuse of discretion not to consider a claimant’s subjective account of disability
- insurance plan administrator was permitted to reject treating physician’s opinion in these circumstances
- ERISA disability claimant’s position was “not supported by the law” where “the record . . . does not show ‘findings’ by medical professionals as much as mere recordings of Holifield’s own complaints”
Written by the judges who cited it.
The opinion
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Case No. 2:18-CV-07422-CAS (JCx) Date September 25, 2019
Title PEREZ V. LINCOLN NATIONAL LIFE INSURANCE CO.
Present: The Honorable CHRISTINA A. SNYDER
K. Dickerson Not Present N/A
Deputy Clerk Court Reporter / Recorder Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
N/A N/A
Proceedings: IN CHAMBERS: ORDER FOLLOWING BENCH TRIAL
I. INTRODUCTION
This case concerns the termination of plaintiff Alicia Perez’s benefits under the long
term disability (“LTD”) and waiver without premium insurance (“WOP”) plans
(collectively “Plans”) that defendant Lincoln National Life Insurance Company (“LNL”)
administers pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”).
Perez applied for LTD benefits on October 2, 2015. See Administrative Record
(“AR”) 1633-34. LNL tentatively approved Perez’s claim on March 11, 2016, pending
review of Perez’s medical records. AR1360. After that review, LNL denied Perez’s claims
by letters dated November 25, 2016 (LTD plan) and November 28, 2016 (WOP plan).
AR0978, AR2459. Perez appealed the withdrawal of benefits on May 1, 2017. AR0845.
LNL denied Perez’s first appeal on August 27, 2017. AR0681. Perez filed a second appeal
on February 19, 2018, AR0404, which LNL again denied on July 17, 2018, AR02102.
Perez filed this action pursuant to ERISA, 29 U.S.C. § 1132(e)(2), on August 23,
2018. Complaint, ECF No. 1 (“Compl.”). The parties filed opening trial briefs on July 12,
2019. See Perez’s Opening Trial Br., ECF No. 18 (“Perez Tr. Br.”); LNL’s Opening Trial
Br., ECF No. 19 (“LNL Tr. Br.”). The parties filed responsive trial briefs on August 2,
2019. See Perez’s Opposition to LNL’s Trial Br., ECF No. 26 (“Perez Opp.”); LNL’s
Opposition to Perez’s Trial Br., ECF No. 28 (“LNL Opp.”). The parties subsequently
submitted proposed memoranda of contentions of fact and law. See Perez’s Mem. of
Contended Facts and Law, ECF No. 30 (“Perez’s MFL”); LNL’s Mem. of Contended Facts
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On September 17, 2019, the Court held a bench trial. The Court now finds and
concludes as follows.
II. FINDINGS OF FACT
A. Perez’s Employment, And The Operative LTD And WOP Policies
Perez was hired by GEP Administrative Services (“GEP”) on September, 8, 1998.
AR0001. Perez is a payroll analyst. In her role, she manages adjustments for each payroll
department in each of GEP’s offices. Her job involves answering calls and emails
involving payroll calculations, reviewing and preparing adjustments to correct errors in
payroll calculations, and editing and verifying financial adjustments. The job description
issued by her employer states that she is required to work in front of a computer for
prolonged periods of time, including prolonged periods of sitting. AR1597. However,
Perez’s supervisor reports that the tasks and functions generally required of the position
could be accomplished sitting or standing. AR 1544-45.
On May 1, 2012, LNL issued a group long-term disability policy to GEP. AR0124.
As part of her employment with GEP, Perez enrolled the plan. The plan provides a monthly
benefit to the extent the claimant is “Totally Disabled,” under the Regular Care of a
Physician, and submits proof of continued “Total Disability.” AR0145. The monthly
benefit ceases on the date the claimant ceases to be “Totally Disabled.” Id.
“Total Disability” means the claimant is unable to perform with reasonable
continuity the “Substantial and Material Acts” necessary to pursue her “Own Occupation.”
AR0134. “Own Occupation” means the employment, business, or profession the claimant
was regularly performing when the Disability began, not the specific job the claimant was
performing for her employer. AR0131. “Substantial and Material Acts” of one’s “Own
Occupation” are the non-modifiable tasks generally required by employers. AR0133. In
determining which acts are “Substantial and Material,” the Plan requires LNL to consider
whether a claimant can perform the specific job duties required by GEP, and, if not,
determine whether any such tasks are customarily required of other employees engaged in
plaintiff’s occupation. Id.
In pertinent part, the LTD policy states as follows:
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(1) During the Elimination Period and Own Occupation Period, it means that as a
result of an Injury or Sickness the Insured Employee is unable to perform with reasonable
continuity the Substantial and Material Acts necessary to pursue his or her Own Occupation
and is not working, or if working, would not be Partially Disabled.
SUBSTANTIAL AND MATERIAL ACTS means the important tasks, functions
and operations:
(1) during the Elimination Period and Own Occupation Period, generally required
by employers from those engaged in the Insured Employee’s Own Occupation
[. . .]
(3) that cannot be reasonably omitted or modified.
OWN OCCUPATION or REGULAR OCCUPATION means any employment,
business, trade or profession and the Substantial and Material Acts of the occupation the
Insured Employee was regularly performing for the Employer when the Disability began.
Own Occupation is not necessarily limited to the specific job the Insured Employee
performed for the Employer.
AR 0131-35.
The WOP policy, meanwhile, provides that life insurance will be continued without
payment of premiums for an insured who becomes “Totally Disabled.” The WOP policy
defines “Totally Disabled” as follows:
DEFINITION. For this benefit, Total Disability or Totally Disabled means an
Insured Person: (1) is unable, due to sickness or injury, to engage in any employment or
occupation for which such Insured Person is or becomes qualified by reason of education,
training, or experience; and (2) is not engaging in any gainful employment or occupation.
AR2059.
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B. Perez’s Claim Process and Medical Review
1. Perez Files Her Claim
Perez submitted a claim for LTD disability benefits on October 2, 2015, which she
resubmitted in December 2015 following a notice of administrative deficiency in her
paperwork. AR1633-34. She had stopped working on April 15, 2015. In her handwritten
application for benefits, Perez claimed she was unable to work due to “severe pain, unable
to concentrate,” and “dizziness.” AR1633-34.
To support her claim, Perez submitted a physician statement from her general
physician Dr. Paul Lee. Dr. Lee opined that Perez was unable to work because she required
access to a bathroom at all times, experienced pain from sitting, and was in fact unable to
sit, stand, or walk for no more than 1 hour each per day. AR 1635-37. Dr. Lee reported
that Perez may be unable to concentrate effectively at work due to her discomfort, inability
to sit or stand for more than one hour at a time, and her constant need to use the restroom,
specifically to defecate. Perez’s medical records dating to 2011 confirm a history of
abdominal pain, rectal bleeding, swelling and inflammation of the colon, colon polyps, and
colitis. See, e.g., AR1659-92, AR1739-72. But scans and tests from 2011 through 2014
did not reveal any condition that led any doctor to instruct Perez to cease working. Id. Dr.
Lee’s reports following physical examinations in April 2015, July 2015, and November
2015 provided the sole medical basis for Perez’s initial claim. Dr. Lee did not address the
possibility that Perez’s condition prevented her from working until the November 2015
visit, at which time he concluded that she was unable to work. AR1510-13.
In March 2016, LNL tentatively approved Perez’s claim in good faith, see AR1360,
but requested medical records from her treating gastrointestinal specialist, Dr. John Kasher,
and her treating hepatalogist, Dr. Edward Mena. AR1351-52, 1370-72, 1286-91.
Records received from Dr. Kasher in August 2016 confirmed that Perez had
registered several gastrointestinal complaints between 2011 and 2016—stomach pain,
constipation, diarrhea, bleeding—but Dr. Kasher’s physical examinations, scans, and tests
did not reveal any abnormalities that prevented Perez from working. AR 1272-78. After
an exam taken in July 2015, Dr. Kasher ruled out irritable bowel disease, and attributed
Perez’s discomfort to irritable bowel syndrome. AR1278. In notes from a visit on March
15, 2016, Dr. Kasher reported that Perez complained of constipation and “pressure as if”
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Title PEREZ V. LINCOLN NATIONAL LIFE INSURANCE CO.
his notes that Perez reported “[n]o more diarrhea.” Id. At that same March 15, 2016 visit,
Dr. Kasher conducted a physical examination, after which he formally assessed Perez’s
condition as “Constipation - Stable” and “Crohn’s disease NOS – Stable.” AR1270.1 Perez
was instructed to continue treatment for constipation with Linzess, a prescribed medication.
He did not conclude that Perez’s condition prevented her from working. Nor did he report
that Perez was not working because she was impaired by any disabling condition. In fact,
Dr. Kasher’s notes state that Perez “used to work for [a] payroll department” but was “laid
off.” AR1264. The records show that Perez visited Dr. Kasher again on June 7, 2016. Dr.
Kasher performed a colonoscopy and a biopsy, and the results were shared at a follow up
appointment on August 2, 2016. The tests showed “no celiac or [C]rohn’s disease . . . but
found there is still inflammation with erosions.” AR1220. Perez was instructed to continue
with Linzess, and to return for a follow up appointment in November 2016. Id.
The records received from Dr. Mena indicated that Perez was treated by Dr. Mena
on February 20, 2015 and December 9, 2015. At the February 2015 visit, Dr. Mena
assessed Perez with “biliary cirrhosis” and “fatty liver disease,” but found that she “is doing
great” and directed Perez to continue treatment with medications and return for an
ultrasound. AR1336. The February 2015 notes do not address whether Perez’s liver
conditions inhibit her from performing her ordinary work functions. In October 2015, Dr.
Mena wrote that the results of Perez’s ultrasound were “unremarkable.” AR1337. At the
December 2015 visit, Dr. Mena conducted a physical examination and wrote that “[p]atient
is in her usual state of health.” AR1334. He directed Perez to continue with her current
treatment, and to work on losing weight. Id. Perez treated with Dr. Mena again on
September 16, 2016. At that visit, Dr. Mena conducted an exam and found that Perez was
again “in her usual state of health.” AR1062. He wrote that Perez “states that she does not
feel that she is capable of working.” AR1063. But Dr. Mena did not conclude that Perez’s
liver conditions prevent her from working. Nor did he report that Perez was not working
because she was impaired by any disabling condition. In fact, Dr. Mena’s notes from the
1 The International Classification of Diseases (“ICD”) code cited for “Crohn’s
disease NOS” is K50.9. AR1270. According to the World Health Organization, this
condition corresponds to “unspecified regional enteritis.” See World Health Organization,
International Classification of Diseases (2003) at K50.9
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December 2015 visit state that Perez was not working because she had “lost her job,” not
because she was disabled. Id.
In addition to the record requests, LNL also sent “abilities” forms to both Dr. Kasher
and Dr. Mena to complete.2 AR1156 (Dr. Kasher); AR1051 (Dr. Mena). The forms request
the doctors’ assessments as to whether and to what extent, if any, Perez could perform the
functions of her occupation. Dr. Kasher did not complete the form and did not explain
why. Dr. Mena returned the form, and opined that Perez only had “[m]oderate limitation
of functional capacity” and was “capable of clerical/administrative (sedentary) activity.”
AR1053. Notwithstanding these conclusions, he also circled “Yes” beneath the prompt
asking “Is [Perez] now totally disabled.” AR1054. In response to a follow up prompt, Dr.
Mena wrote that he anticipated Perez could return to work in April 2017, “unless not
impaired.” Id.
2. LNL Reviews And Terminates Perez’s Claim
Based on the foregoing information, LNL undertook a review of Perez’s claim for
total disability. LNL hired Dr. Oluremi Aliyu, board certified in occupational medicine, to
conduct an independent peer review of Perez’s claim. Dr. Aliyu’s review consisted of a
paper review of Perez’s medical records, as well as interviews with Perez’s three treating
physicians at that time: Dr. Lee, Dr. Kasher, and Dr. Mena.
Dr. Aliyu states that she spoke with Dr. Lee by phone on November 16, 2016.
AR0986. According to Dr. Aliyu, Dr. Lee reported that Perez “continued to subjectively
complain of constant abdominal discomfort and frequent passing of gas.” Id. She states
that Dr. Lee’s “physical examinations have been normal, and [Perez] always appeared well
at her clinic visits.” AR0986-97. Dr. Lee also reportedly told Dr. Aliyu that he assessed
Perez to be totally disabled “based on what [Perez] told him” about her inability to “sit for
prolonged periods of time due to anal/rectal discomfort.” AR0987. “Otherwise,” Dr. Aliyu
reported, Dr. Lee found “no physical limitations or restrictions” from her condition. Id.
2 Dr. Lee evidently also received an abilities form, which he returned with the
conclusion that Perez was totally disabled. AR0986 (as reported by LNL’s paper review).
The parties have not directed the Court to this form in the 2,478 page administrative record
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The Court observes that Dr. Lee strongly contests this characterization of his phone
call with Dr. Aliyu. In a clarification letter sent to LNL in February 2017 (after LNL
terminated Perez’s claim), Dr. Lee wrote that he “did not fill out the form [declaring Perez
disabled] based solely on what Ms. Perez told me. I also based the report on my numerous
visits with Ms. Perez, as substantiated by several objective tests, such as colonoscopies,
CT scans, and others.” AR0840 (emphasis original).
Dr. Aliyu states that she interviewed Dr. Kasher on November 16, 2016, two weeks
after his last reported appointment with Perez. AR0986. In the conversation with Dr.
Aliyu, Dr. Kasher reportedly stated that he treated Perez for “IBS with constipation, which
have remained stable for some time.” Id. According to Dr. Aliyu, Dr. Kasher “stated that
[Perez] does not have any significant impairment from a gastrointestinal standpoint to
recommend any specific restrictions or limitations,” and that while Perez reported
discomfort with prolonged sitting, there are “no clinical findings of any rectal or anal
lesions that would account for such reported discomfort.” Id. Dr. Kasher has not contested
Dr. Aliyu’s account of their conversation.
Dr. Aliyu states that she spoke with Dr. Mena on November 15, 2016. AR0986.
According to Dr. Aliyu, Dr. Mena reported that Perez “has been diagnosed with primary
biliary cholangitis and nonalcoholic steatohepatitis,” but “does not have any significant
impairment from the standpoint of her liver.” Id. The “mild elevation of her liver function
test,” Dr. Mena reported to Dr. Aliyu, “is not a disabling condition.” Id. Dr. Aliyu further
states that Dr. Mena found that Perez’s “main compliant [sic] of fatigue . . . is significantly
out of proportion” with his assessment of her condition. Id. Dr. Mena told Dr. Aliyu that
“no restrictions and/or limitations are medically warranted,” and to the extent inconsistent
portions of the abilities form he submitted (AR1053-54) suggested otherwise, “Dr. Mena
stated that he completed the form based on the request of the claimant, and not based on
his clinical opinion.” Id. Dr. Mena has not contested Dr. Aliyu’s account of their
conversation.
After this peer review, Dr. Aliyu submitted a report concluding that Perez’s
evaluations, tests, and physical exams, as well as the observations of her treating
physicians, did not support a finding of total disability because Perez retained the ability to
perform the sedentary work her job required. AR0994-96. Accordingly, LNL terminated
Perez’s claim for LTD and WOP benefits on or around November 28, 2016. AR0978-84,
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3. Perez’s First Appeal
Perez appealed the termination in May 2017, attaching a narrative letter from Dr.
Lee and updated medical reports related to her gastrointestinal and liver conditions.
AR788-95, AR807-10, AR866-918.
Notably, Perez submitted a report from a new treating gastroenterologist, Dr. Paul
Ephraim, whom Perez retained to replace Dr. Kasher. Dr. Ephraim conducted a physical
examination on June 2, 2017. AR788-95. At the outset, Dr. Ephraim noted that Perez was
“engaged in [a] conflict with [LNL] over claimed disability and inability to work.”
AR0788. He noted that “[h]er position, supported by letters from Dr. Paul Lee, is that her
bowel disease, particularly her diarrhea with urgency, prevented her from being able to
perform even sedentary work.” Id. After conducting his own physical examination, Dr.
Ephraim assessed Perez to have “[i]rritable bowel syndrome with both constipation and
diarrhea.” AR0795. Although Dr. Ephraim did not state, in this contemporaneous
examination report, whether this gastrointestinal diagnosis caused any impairments that
prevent Perez from working, he did opine that he “honestly do[es] not feel” that Perez’s
“liver disease will support [a] disability claim.” AR0795.
In addition to the examination report, Perez subsequently submitted to LNL a
clarification letter from Dr. Ephraim dated June 19, 2017. AR0761. Dr. Ephraim states in
the letter that Perez “asked me to write in support of her disability claim.” Id. He reports
that Perez “must be close to her bathroom, and even then has soiled herself because of
inability to get to the toilet in time.” Id. He also notes that Perez’s “bowel problems are
further complicated by bouts of constipation for which she has required medications.” Id.
The letter concludes that Perez states she “is certain that the activity and stress of a work
environment worsen her bowel symptoms,” and adds that her disorder “appears,” based on
these self-reports, “to impair her ability to function at work.” Id. On that basis, Dr.
Ephraim suggests that LNL should “honor her disability claim.” Id. Dr. Ephraim does
not conclude that Perez is totally disabled, nor does he make medical findings that would
support such a determination.
Perez also submitted an updated hepatology report from Dr. Mena. AR0807-810.
The May 15, 2017 report states that “the patient is doing well,” finds “no evidence of
cirrhosis,” instructs Perez to “continue to focus on diet and exercise,” and doubles Perez’s
dosage for ursodiol (to treat her biliary cholangitis and fatty liver disease) to 500 milligrams
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For purposes of the appeal, LNL retained a second gastroenterologist—Dr. Thomas
Liebermann—to conduct a second independent peer review. Dr. Liebermann’s paper
review consisted of a review of Perez’s medical records, and attempts to interview Perez’s
three treating physicians at that time: Dr. Lee, Dr. Ephraim, and Dr. Mena. See AR0731-
750. In his report, Dr. Liebermann states that he was unable to contact Dr. Lee, and the
covering doctor was unable to give an opinion regarding Perez’s condition. AR0735. Dr.
Liebermann did, however, interview Dr. Ephraim and Dr. Mena.
According to Dr. Liebermann, Dr. Mena reported to him on June 27, 2019 that Perez
“was not disabled with respect to her liver disease.” Id. That same day, Dr. Liebermann
sent Dr. Mena a confirmation letter repeating this report, and inviting Dr. Mena to respond
if he disagreed with that characterization of their discussion. AR0741. Dr. Mena did not
submit any response. Dr. Liebermann interviewed Dr. Ephraim on June 29, 2017. In that
interview, Dr. Ephraim reportedly told Dr. Liebermann that he “did not think the patient
was impaired due to her gastrointestinal situation, which is a mixed form of irritable bowel
that has responded to the use of Linzess and Xifaxan.” AR0735. Dr. Libermann reported
that it was Dr. Ephraim’s conclusion that Perez was “[n]ot impaired from a GI perspective.”
Id. On the same day, Dr. Liebermann sent Dr. Ephraim a confirmation letter repeating this
report and inviting Dr. Ephraim to respond if he disagreed. AR0737. The following day,
Dr. Ephraim submitted a short response to Dr. Liebermann’s letter, explaining that he
“thought I communicated to you that I think [Perez] is disabled, but I did not know how
much of her disability was due to [irritable bowel disease] and how much to [irritable bowel
syndrome].” AR0714. Overall, Dr. Liebermann concluded that Perez was not disabled,
and would be able to perform the ordinary functions of her job so long as her work station
is placed “near a restroom.” AR0735.
Nevertheless, in response to the apparent discrepancy in Dr. Liebermann’s report,
LNL decided to obtain a third independent peer review in July 2017, and represented that
it would not rely on Dr. Liebermann’s report for purposes of the appeal. AR0708. LNL
then retained Dr. Venkat Mohan, a board certified gastroenterologist and clinical professor
of medicine at the University of Washington, to conduct a paper review of Perez’s medical
records and interview Perez’s treating physicians. At Perez’s request, Dr. Mohan
conducted his review via questionnaire rather than phone interview. AR0078. Because
Dr. Ephraim apparently retired or stopped treating Perez at some point between June 30,
2017 and July 14, 2017, Dr. Mohan only sent questionnaires to Dr. Lee, and Dr. Mena.
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retired and was no longer treating Perez). Because neither Dr. Lee nor Dr. Mena responded
to Dr. Mohan’s questionnaire, Dr. Mohan’s undertook a paper review of Perez’s file.
AR0722. Dr. Mohan found no support for functional impairment or work incapacity due
to either Perez’s liver or gastrointestinal issues. AR0722.
In response to Dr. Mohan’s report, Perez submitted another letter from Dr. Lee.
AR0706. The letter restated Perez’s accounts of her symptoms; specifically, that
“[p]rolonged sitting causes severe left-sided abdominal pain, which leads to tenesmus and
diarrhea,” that Perez “is unable to concentrate at work,” that Perez “is unable to walk more
than one hour per 8 hour workday,” and that Perez “has frequent urges to defecate/pass gas
and is not responsive to typical inflammatory bowel disease medication.” AR0706. LNL
submitted the letter to Dr. Mohan, who confirmed that Dr. Lee’s concerns, based on Perez’s
self-reports, were considered, and rejected, as part of his review. AR0695-704.
On August 23, 2017, LNL upheld the termination of LTD and WOP benefits on first-
level appeal. AR0688-94.
4. Perez’s Second Appeal
Perez filed a second appeal in February 2018. The appeal attached letters from
Perez’s two sons describing their observations of their mother’s condition, an update from
Dr. Lee, along with records from a new treating gastroenterologist, Dr. Mehdi Korsandi.
AR0485-557. Dr. Korsandi conducted a physical examination on December 20, 2017.
Perez reported constipation and pain at the exam, but Dr. Korsandi did not find anything
disabling. AR0485-87. In fact, Dr. Korsandi noted that “her last colonoscopy showed no
colitis.” AR0487. The results of an irritable bowel disease screening panel also ruled out
that condition. AR0492-93.
LNL then retained Dr. Prakash Jay, certified in internal and occupational medicine,
to conduct an independent medical examination. From the physical examination he
conducted, Dr. Jay found some abdominal tenderness related to obesity, but no disability
that would prevent Perez from performing her job functions. AR0388-91. After his exam
and review of Perez’s records, Dr. Jay found that some minor functional limitations, such
as the inability to sit for prolonged periods, may warrant certain workplace
accommodations—such as the ability to change position from sitting to standing, the ability
to take frequent breaks to stand or walk “every hour for approximately five to ten minutes,”
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and the ability to work near a restroom—but he did not conclude that Perez suffered from
any conditions that prevented her from performing her job functions. AR0390-91.
Perez responded by submitting another letter from Dr. Lee, and commissioning a
second independent medical exam conducted by board certified internal medicine
specialist Dr. Babak Tashakkor. In his letter, Dr. Lee again relayed reports from Perez that
she continued to experience rectal pain and sitting limitations that prevent her from
working. AR0367. However, Dr. Tashakkor concluded from his physical examination
that Perez was capable of performing sedentary work, stating that Perez “can sit for 6 hours
in an eight hour day,” and could “stand and walk for 2 hours in an eight hour day.”
AR0373. Although he found that Perez “has a terminal disease” for which the “median
survival time is approximately four years”—the only physician in the record to find this—
he did not find her totally disabled. Id. After receiving them from Perez, LNL sent these
materials to Dr. Jay, who, on review, affirmed his prior opinion that Perez can perform her
typical job functions, subject to the accommodations he identified. AR0230-34.
Based on the foregoing, LNL upheld the termination of benefits. AR0212-20.
5. Perez Is Denied SSDI Benefits
Perez also pursued federal Social Security Disability Insurance (“SSDI”) benefits
while she was pursuing her claim on the LNL policies. AR0025. That claim was initially
denied in September 2016, and subsequently denied on reconsideration in January 2017.
Id. On February 13, 2019, Administrative Law Judge (“ALJ”) Edward Bauer affirmed
denial of Perez’s SSDI claim, finding Perez’s subjective reports of debilitating pain and an
inability to work internally inconsistent, lacking credibility, and in conflict with medical
records. See Decl. of Blake Russum (“Russum Decl.”), ECF No. 19-2, Ex. 1 at 8-12.
III. LEGAL STANDARD
ERISA provides that a qualifying ERISA plan participant may bring a civil action
in federal court “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); Metro. Life Ins. Co. v. Glenn, 554 U.S. 105,
108 (2008). As a participant in the Plan, Perez has standing to seek judicial review of
LNL’s termination of her benefits. See Chuck v. Hewlett Packard Co., 455 F.3d 1026, 1040
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district court by a preponderance of the evidence. See Muniz v. Amec Constr. Mgmt., Inc.,
623 F.3d 1290, 1294 (9th Cir. 2010). The burden does not shift to an insurer simply
because it initially granted, and then terminated, the requested benefits. Id. at 1296.3
A claim of denial of benefits in an ERISA case is 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.” Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). The parties here agree that a de novo
standard of review applies. See Perez Trial Br. at 13; LNL Trial Br. at 14. Pursuant to that
standard, the Court “considers the matter anew, as if no decision had been rendered.”
Dawson v. Marshall, 561 F.3d 930, 932-33 (9th Cir. 2009). Specifically, the Court must
determine whether benefits were correctly denied based on the evidence in the
Administrative Record, and by interpreting the governing plan documents without
deferring to either party’s interpretation. Firestone, 489 U.S. at 112-13, 115.
While the Court’s de novo review is ordinarily limited to the administrative record,
additional evidence may be considered if “circumstances clearly establish that additional
evidence is necessary to conduct an adequate de novo review of the benefit decision.”
Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th
Cir. 1995). Where there is “conflicting testimony,” the Court is required to “evaluate the
persuasiveness” of the evidence “and decide which is more likely true.” Shaw v. Life Ins.
Co. of N. Am., 144 F. Supp. 3d 1114, 1123 (C.D. Cal. 2015).
IV. CONCLUSIONS OF LAW
To determine whether Perez has met her burden of proof pursuant to the terms of the
Plans, the Court first examines what the Plans require Perez to establish to become eligible
for benefits. The Court then assesses whether Perez has come forward with enough
evidence to establish that she meets those standards.
3 Perez contends that LNL’s decision to initially approve her disability claim before
it had collected evidence from her principal treating physicians places the burden on LNL
to justify its later decision to cancel the delivery of those benefits after the medical evidence
was collected and reviewed. See Perez Tr. Br. at 21-22. As discussed in Muniz, this is an
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A. The Plans’ Eligibility Requirements
“ERISA does not contain a body of contract law to govern the interpretation and
enforcement of employee benefit plans.” Richardson v. Pension Plan of Bethlehem Steel
Corp., 112 F.3d 982, 985 (9th Cir. 1997). Instead, “Congress intended that courts apply
contract principles derived from state law but be guided by the policies expressed in ERISA
and other federal labor laws.” Id.; see also Dupree v. Holman Prof’ Counseling Centers,
572 F.3d 1094, 1097 (9th Cir. 2009). Following these rules, courts “interpret terms in
ERISA insurance policies in an ordinary and popular sense as would a person of average
intelligence and experience.” Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1441 (9th Cir.
1990) (internal citation omitted).
Perez’s LTD plan “is an ‘own occupation’ policy, also known as an occupational
policy.” Gross v. UnumProvident Life Ins. Co., 319 F. Supp. 2d 1129, 1132 (C.D. Cal.
2004) (applying California law). To be eligible for benefits pursuant to the LTD plan,
Perez must show that she is unable “to perform with reasonable continuity the Substantial
and Material Acts necessary to pursue [her] Own Occupation.” AR0134. “Own
Occupation” means the employment, business, or profession the claimant was regularly
performing when the Disability began, not the specific job the claimant was performing for
her employer. AR0131. “Substantial and Material Acts” of one’s “Own Occupation” are
the non-modifiable tasks generally required by employers in that occupation. AR0133. In
determining which acts are “Substantial and Material,” the LTD plan requires the Court to
consider whether Perez can perform the specific job duties required by GEP, and, if not,
determine whether any such tasks are customarily required of other employees engaged in
Perez’s occupation. Id.
Perez’s WOP plan, by contrast, is a “general disability polic[y],” or an “any
occupation policy,” which “indemnif[ies] the insured only when [she] becomes incapable
of following any occupation for profit.” Gross, 319 F. Supp. 2d at 1132 (explaining that
“total disability for purposes of an any occupation policy [is] a disability which prevents
[the insured’s] 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”) (quoting Erreca v. West. States Life Ins. Co., 19 Cal.
2d 388, 394–395 (1942)) (emphasis added). By its terms, to be eligible for benefits
pursuant to the WOP plan, Perez must show that she “is unable, due to sickness or injury,
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For purposes of the “own occupation” determination relevant to the LTD plan, Perez
is a senior payroll analyst. AR1544. The position does not require travel and can be
completed either sitting or standing. AR1545. The substantial and material duties required
by the position include answering phone calls and typing emails involving payroll
calculations, reviewing and preparing documents, handling interpersonal communication,
and exercising independent judgment. AR1544-45, AR1597. Accordingly, to establish that
she is totally disabled pursuant to the LTD plan, Perez must present evidence that she is
incapable of performing these substantial and material duties.
With respect to the “any occupation” determination that applies to the claim on the
WOP plan, Perez has at least a high school education, and more than a decade of experience
working as a payroll clerk trained to operate complicated software. AR0512. To be
eligible for WOP benefits, therefore, Perez must prove that she is unable “to engage in any
employment or occupation” for which she is eligible from these qualifications.
Pursuant to these functional standards, “[t]he mere existence of an impairment is
insufficient proof of disability.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993).
Perez must also “bear[] the burden of proving that [her] impairment is disabling.” Id.
(emphasis added); see also Holifield v. UNUM Life Ins. Co. of America, 640 F. Supp. 2d.
1224, 1237 (C.D. Cal. 2009) (“It is an individual’s ability to function, not simply their
diagnosis, that entitles him or her to disability benefits.”).
B. The Weight Of The Evidence
The administrative record contains medical evidence from Perez’s treating
physicians (Drs. Lee, Kasher, Ephraim, Korsandi, and Mena), two independent medical
examinations (Drs. Jay and Tashakkor), and three paper reviews (Drs. Aliyu, Liebermann,
and Mohan). Perez also submits self-reported narratives, as well as affidavits from her
children. In addition, before the Court are the findings of the ALJ in Perez’s SSDI benefits
determination. Assessing this evidence, the Court concludes that Perez has not carried her
burden to establish total disability under either of the Plans.
1. Medical Evidence
To assess the weight it should accord to physician-reported medical evidence, the
Court considers “(1) the extent of the patient’s treatment history, (2) the doctor’s
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specialization or lack thereof, and (3) how much detail the doctor provides supporting his
or her conclusions.” Shaw, 144 F. Supp. 3d at 1129 (citing cases).
Applying these considerations, the Court first looks to Perez’s treating specialists:
gastroenterologists Drs. Kasher, Ephraim, and Korsandi, and hepatologist Dr. Mena.
Among the gastroenterologists, the Court places the most weight on Dr. Kasher. Dr.
Kasher was Perez’s treating gastroenterologist between 2011 and 2016—by far the longest
of any of the gastroenterologists who treated Perez—and the gastroenterologist treating
Perez at the time of her initial claim in 2015. Shaw, 144 F. Supp. 3d at 1129-30 (“Courts
have typically afforded greater weight to the opinions of physicians who have treated the
claimant for an allegedly disabling condition for a long period of time.”) (citing inter alia
Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011)). Dr.
Kasher diagnosed Perez with irritable bowel syndrome, ruled out the more serious Crohn’s
disease and irritable bowel disease, and declined to submit a disability assessment
supporting Perez’s claim for disability. See AR1156, AR1220, AR1278. Dr. Kasher also
told Dr. Aliyu, without any subsequent reservation or revision, that Perez “does not have
any significant impairment from a gastrointestinal standpoint to recommend any specific
restrictions or limitations,” and that while Perez reported discomfort with prolonged sitting,
there are “no clinical findings of any rectal or anal lesions that would account for such
reported discomfort.” AR0986.4 Taken together, the Court concludes that it is reasonable
to infer that Dr. Kasher—the specialist who treated Perez’s principal ailments for the most
4 At the bench trial, Perez’s counsel urged the Court to ignore evidence from Dr.
Kasher in view of his “silence” and Dr. Aliyu’s claimed untrustworthiness. See also Perez
Opp. at 21. The Court declines to draw that inference. Dr. Kasher received repeated
opportunities to support Perez’s claim for total disability in the time near and during the
pendency of her claim: at examinations in 2015 and 2016, in the abilities assessment form
distributed to him by LNL, in his interview with Dr. Aliyu, and, later—as Dr. Lee did—in
response to Dr. Aliyu’s characterization of their interview. At none of those junctures,
however, did Dr. Kasher submit any evidence to support Perez’s claim. And in fact, in his
undisputed interview with Dr. Aliyu, Dr. Kasher apparently took the opposite view. In
light of these facts, the Court concludes that it is more reasonable to infer that Dr. Kasher
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amount of time—does not assess that Perez is totally disabled by her gastrointestinal
condition.
The Court next considers gastroenterological evidence from Drs. Eprhaim and
Korsandi. Perez’s only recorded physical exam with Dr. Ephraim took place on June 2,
2017. AR0771.5 Dr. Ephraim abruptly retired thereafter, at some point between June 30,
2017 and July 14, 2017. AR0078. From what the Court can deduce, Dr. Ephraim treated
Perez at most between August 2, 2016 (when Perez had her last recorded examination with
Dr. Kasher) and June 30, 2017 (when Dr. Ephraim last wrote a letter to LNL in support of
Perez’s first appeal). But it is more likely that Dr. Ephraim only treated Perez once, at the
recorded visit on June 2, 2017, and then remained involved in her claims process during
the four weeks before his retirement on or around June 30, 2017. Either way, Dr. Ephraim’s
limited role in Perez’s actual gastrointestinal treatment severely restricts the weight the
Court grants his opinions. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 832
(2003) (asserting that the ordinary “assumption that the opinions of a treating physician
warrant greater credit . . . may make scant sense when, for example, the relationship
between the claimant and the treating physician has been of short duration”).
With these reservations in place, the Court does not find that the evidence from Dr.
Ephraim tips the weight of evidence toward a finding of total disability. After his one-time
examination, Dr. Ephraim assessed Perez to have “[i]rritable bowel syndrome with both
constipation and diarrhea.” AR0795. He did not conclude, in his examination report, that
this condition prevented Perez from working. Id. Even in the subsequent letter of
clarification, Dr. Ephraim’s revised conclusion that LNL should “honor” Perez’s disability
claim derives from what “appear[ed]” to him from what Perez reported, based on what was
“certain” to Perez. AR0761. Dr. Ephraim’s conclusion was not based on what was certain
to him, let alone any medical evidence that he uncovered from his single examination of
Perez. The assertion in Dr. Ephraim’s two-line handwritten note to Dr. Liebermann—
that “I think [Perez] is disabled”—is similarly unsupported by evidence that Perez could
not work. AR0714 (also stating that Dr. Ephraim could not determine the medical basis
5 While the Court treats Dr. Ephraim as a “treating physician,” the Court notes that
his single physical examination situates him more closely to the two independent medical
examiners in this case, Dr. Jay and Dr. Tashakkor, who also only examined Perez on a
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for the disability he found, but believed it to arise from some combination of inflammatory
bowel disease and irritable bowl disorder). These are not grounds to find that Perez is
“totally disabled” by her gastrointestinal conditions pursuant to either of the Plans. See
Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 877 (9th Cir.
2004) (holding that testimony from treating physicians that claimant was disabled did not
establish disability where the treating physicians failed to provide “at least some answer
explaining why the illness prevented [claimant] from performing her work as a secretary”);
e.g., Brown v. Connecticut Gen. Life Ins. Co., No. 13-CV-5497 PJH, 2014 WL 7204936,
at *13 (N.D. Cal. Dec. 17, 2014) (concluding that plaintiff “failed to establish that she
satisfied the Life Policy’s definition of Totally Disabled,” and declining to defer to a
treating physician’s “conclusory assertion that plaintiff is Totally Disabled” after only
“brief screening tests”); see also Matney on Behalf of Matney v. Sullivan, 981 F.2d 1016,
1019 (9th Cir. 1992) (holding that the factfinder, in the related context of an application
for SSDI benefits, “need not accept an opinion of a physician—even a treating physician—
if it is conclusionary and brief and is unsupported by clinical findings”).
The evidence from Perez’s other treating gastroenterologist—Dr. Korsandi—does
not establish total disability, either. Dr. Korsandi conducted a single physical examination
of Perez on December 20, 2017. His examination report did not conclude that Perez was
totally disabled. AR0485-87. If anything, Dr. Korsandi’s assessment suggests an
improvement in Perez’s underlying condition. He found that Perez’s “last colonoscopy
showed no colitis,” AR0487,” and determined from the results of an inflammatory bowel
disease screening panel that Perez did not have that disease, AR0492-93. There is,
therefore, no evidence from Dr. Korsandi suggesting that Perez is totally disabled by her
gastrointestinal conditions.
The Court next considers evidence involving Perez’s liver condition. Dr. Mena,
Perez’s long-time treating hepatalogist, treated Perez throughout the claim period in 2015-
16. In examination reports from this time, Dr. Mena wrote that the results of testing were
“unremarkable,” that Perez was consistently “in her usual state of health,” and that Perez
should focus on diet and exercise. AR1334-37, AR1062-63. He did not conclude, in any
of these reports, that Perez was incapable of working or totally disabled, even after Perez
told Dr. Mena that she did not believe she could return to work. AR1063. In fact, on the
abilities form that LNL provided to him, Dr. Mena assessed that Perez only had
“[m]oderate limitation of functional capacity” and was “capable of clerical/administrative
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While on the same form Dr. Mena circled “Yes” beneath the prompt asking “Is
[Perez] now totally disabled,” AR1054, the Court finds that this conclusion is not
supported by Dr. Mena’s own assessment of Perez’s capabilities, and therefore not entitled
to weight. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir.
2004) (affirming factfinder’s decision, in SSDI context, to accord only “minimal
evidentiary weight” to “treating physicians’ views” that were “in the form of a checklist,
did not have supportive objective evidence, was contradicted by other statements and
assessments of [claimaint’s] medical condition, and was based on [claimant’s] subjective
descriptions” of his disability); e.g., Holifield v. UNUM Life Ins. Co. of Am., 640 F. Supp.
2d 1224, 1242 (C.D. Cal. 2009) (insurance plan administrator was permitted to reject
treating physician’s opinion in these circumstances); see also Seleine v. Fluor Corp. Long–
Term Disability Plan, 598 F. Supp. 2d 1090, 1101 (C.D. Cal. 2009), aff’d, 409 F. App’x
99 (9th Cir. 2010) (“Under ERISA, an administrator is not free to accept a conclusion in a
medical report without considering whether that conclusion follows logically from the
underlying medical evidence.”). To that end, Dr. Mena does not contest later telling Dr.
Aliyu that “no restrictions and/or limitations are medically warranted” on account of
Perez’s liver condition, and to the extent inconsistent portions of the abilities form he
submitted suggest otherwise, Dr. Mena told Dr. Aliyu that “he completed the form based
on the request of the claimant, and not based on his clinical opinion.” AR0986. On the
balance of this evidence, the Court concludes that the medical evidence from Perez’s
treating hepatologist also does not support a finding of total disability.
That leaves Dr. Lee, Perez’s longtime general physician. Dr. Lee is not a specialist
in either gastroenterology or hepatology. He has, however, consistently concluded that
Perez suffers from advanced gastrointestinal diseases like inflammatory bowel disease and
Crohn’s disease, and repeatedly found that Perez cannot work as a result of her symptoms.
While the Court must give weight to Dr. Lee because he has continuously treated Perez for
more than seven years, Shaw, 144 F. Supp. 3d at 1129, that weight must be limited by the
fact that Dr. Lee is not a specialist in either of Perez’s major condition areas. Zavora v.
Paul Revere Life Ins. Co., 145 F.3d 1118, 1122-23 (9th Cir. 1998) (holding that an ERISA
plan administrator abused its discretion with “reliance on non-experts in field” to make a
benefits determination); Shaw, 144 F. Supp. 3d at 1129 (court must consider a “doctor’s
specialization or lack thereof”).
Additionally, while Dr. Lee claims that his opinions are “substantiated by several
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and frequent need to defecate,” AR0367, that Perez is “unable to return to sedentary work
because she cannot undergo prolonged periods of sitting and needs constant access to the
bathroom,” AR0841, and that Perez “is unable to concentrate at work due to nausea, [and]
weakness,” AR0706—principally arise from Perez’s ipse dixit. See Jordan, 370 F.3d at
875-78 (ERISA factfinder not obligated to defer to conclusory statements submitted by
physicians that merely repeat claimant’s subjective reports). In fact, Dr. Lee concedes that
“[o]n some level” his conclusions all ultimately reflect Perez’s “subjective complaints.”
AR0840. His opinions are therefore not medical findings, and that diminishes the weight
the Court is obligated to give them. See Seleine, 598 F. Supp. 2d at 1102 (concluding that
where the “records of [claimant’s] attending physicians primarily document her subjective
complaints,” the claimant’s “attempts to elevate these notes of a patient’s self-report to the
status of ‘findings’ is inappropriate” because “these complaints were subject to verification
by objective medical evidence,” and a factfinder is “under no obligation to accept them at
face value”); Holifield, 640 F. Supp. 2d at 1240 (ERISA disability claimant’s position
was “not supported by the law” where “the record . . . does not show ‘findings’ by medical
professionals as much as mere recordings of Holifield’s own complaints”).
In consideration of these factors, the Court cannot conclude that Dr. Lee’s opinions
by themselves, or in combination with the other medical evidence before the Court from
Perez’s other treating physicians, supports a finding that Perez is totally disabled pursuant
to the Plans. Like Perez’s treating specialists, Dr. Lee has examined Perez and reviewed
the same records, but he has reached different diagnostic conclusions, and different
assessments of Perez’s abilities. The sole basis for these differences appears to be the
weight that Dr. Lee has accorded Perez’s self-reported inability to perform work-related
functions, specifically her ability to sit, stand, or walk. The unspecialized opinions of a
claimant’s primary care provider, when they contradict the conclusions of treating
specialists and chiefly derive from a claimant’s self-reported limitations, are neither
medical findings, nor sufficient to rebut the medical findings of the specialists actually
treating that claimant’s allegedly disabling condition. Shaw, 144 F. Supp. 3d at 1129-30;
Seleine, 598 F. Supp. 2d at 1102. On this basis as well, the Court declines to conclude that
Perez has carried her burden to demonstrate that she is totally disabled pursuant to the
Plans.
Neither of the independent medical examiner reports, nor any of the paper reviews,
support a disability finding, either. Dr. Jay’s independent examination concluded that
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such as the ability to change position from sitting to standing, the ability to take frequent
breaks to stand or walk “every hour for approximately five to ten minutes,” and the ability
to work near a restroom. AR0390-91.6 Dr. Tashakkor, who was retained by Perez, also
concluded that Perez was capable of performing sedentary work, stating that Perez “can sit
for 6 hours in an eight hour day,” and could “stand and walk for 2 hours in an eight hour
day.” AR0373. And of course, each of LNL’s paper reviewers—for what their
conclusions are worth, and it is considerably less than the weight accorded to the physicians
who actually examined Perez—declined to find Perez totally disabled, either. See AR0986
(Dr. Aliyu), AR0735 (Dr. Libermann), AR0695 (Dr. Mohan).
6 At trial, the Court inquired as to whether any of these accommodations, or any
other accommodation, had been attempted while Perez was employed. See Trial Tr. at
1:19-2:2, 9:11-13. The parties could not identify any instance of an attempt to
accommodate in the record. See id. at 10:11-12. Notwithstanding the absence of any
supporting evidence, Perez’s counsel still asserted that any attempt to accommodate Perez
would be futile. Id. at 10:12-14 (“[I]t is my understanding that they cannot [accommodate]
given the extensive absences for the restroom breaks[.]”); id. at 12:3-5 (“I’m aware of
nothing to be able to accommodate that, Your Honor[.]”); id. at 18:2 (“[H]er job can’t really
accommodate her due to rushed time schedules.”). LNL’s counsel, in response, contended
that no accommodation was even necessary, since Perez’s job description already
permitted her to work from an alternating sit/stand position. Id. at 19:10-13 (“And so
there’s no concern for an accommodation because it’s quite clear from the record . . . that
[Perez] could perform her occupation to the extent she wanted to sit or stand[.]”).
The Court also inquired as to whether Perez’s claim should be denied without
prejudice, or its disposition continued, until an accommodation could be attempted. Id. at
32:16-18. While Perez’s counsel stated that his client “would be quite okay” with a
continuance, id. at 33:23-24, LNL’s counsel disagreed, and contended that denying Perez’s
claim without prejudice would not be procedurally appropriate. Id. at 32:19-23. The Court
ultimately concludes that, in this case, a disposition to allow time to try an accommodation
would be futile because Perez no longer works for GEP. The record reflects that Perez has
not been employed for more than four years, such that there is no employment opportunity
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In accordance with the foregoing, the Court finds that the weight of the medical
evidence does not support a conclusion that Perez is totally disabled pursuant to the Plans.
2. Perez’s Other Evidence
In addition to medical evidence, Perez submits a personal statement, AR0516, as
well as affidavits from her sons attesting to her alleged disability, AR0423-26. While the
Court is obligated to at least consider this subjective evidence, see Demer v. IBM Corp.
LTD Plan, 835 F.3d 893, 904–07 (9th Cir. 2016) (abuse of discretion not to consider a
claimant’s subjective account of disability), evidence of this kind is not entitled to
significant weight, see Jordan, 370 F.3d at 875-78 (ERISA factfinder not obligated to take
subjective account of disability at face value); Shaw, 144 F. Supp. 3d at 1135-36, 1139
(finding “significant potential for bias” in narratives submitted by a claimant, her friends,
and her family, and cautioning that “subjective evidence of a disabling condition is
inherently less reliable than objective evidence”).
The Court is especially reticent to consider Perez’s narrative due to evidence that
she may not be a credible witness. See Fair v. Bowen, 885 F.2d 597, 604 n.5 (9th Cir.
1989) (holding that courts may apply “ordinary techniques of credibility evaluation” to
“determin[e] whether or not [a] claim of disabling pain should be believed”). Earlier this
year, an ALJ denied Perez’s claim for SSDI benefits in part because he questioned the
veracity of her testimony involving the disabling effects of her gastrointestinal and
hepatological ailments. See Russum Decl., Ex. 1 at 8-12 (concluding that Perez’s
“statements and actions concerning the intensity, persistence, and limiting effects of her
impairments are not fully consistent with the claim of disability”). Among other concerns,
the ALJ found that Perez’s testimony about her ability to work “contains inconsistencies”
that led the ALJ to doubt her testimony and determine that “her symptoms are less likely
to reduce her capacity to perform work related activities” than Perez claims. Id. at 8. For
example, Perez claims she suffers from severe and disabling diarrhea, but the ALJ found
that Perez “denied experiencing diarrhea” as recently as January 2018. Id. Similarly, while
Perez alleged in her SSDI petition that she stopped working because of her symptoms, the
ALJ found that Perez “inconsistently advised” her treating physicians “that she had actually
been laid off from work.” Id.; see, e.g., AR1264 (Perez told Dr. Kasher that she had been
“laid off”); AR1063 (Perez told Dr. Mena that she had “lost her job”).
While the ALJ’s disposition in the SSDI proceeding is not controlling or even
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determinations with respect to Perez’s credibility are noticeable. See Nagy v. Grp. Long
Term Disability Plan for Employees of Oracle Am., Inc., 183 F. Supp. 3d 1015, 1025 (N.D.
Cal. 2016), aff’d, 739 F. App’x 366 (9th Cir. 2018). In Nagy, the court was “faced with an
unavoidable credibility dispute between the ERISA beneficiary and his treating physicians
on one hand, and the insurer’s medical experts on the other, without having heard testimony
from the individuals whose credibility is being questioned.” Id. at 1025. In that situation,
“where the Court’s holding inevitably relies on a credibility determination, and an [ALJ]
has heard testimony from the claimant, evaluated the medical record, and made a well-
reasoned disability determination,” the court concluded that “the ALJ’s decision is
probative of [the claimant’s] disability at the time he applied for LTD benefits,” such that
“while the SSA Decision is not binding, the Court will consider [the claimaint’s] SSA
Decision in evaluating whether [the claimant] was disabled under the terms of the Policy”
at issue. Id. On appeal, the Ninth Circuit affirmed this approach, holding that “the district
court did not abuse its discretion by considering the social security decision even though it
was not part of the administrative record” because “social security decisions can be
particularly important evidence in ERISA cases” and “the additional evidence at issue . . .
could not have been presented in the administrative process.” Nagy, 739 F. App’x at 367
(internal citations and marks omitted).
Considering Perez’s testimony in this light, as weighed in the context of the
foregoing medical evidence discussed supra, the Court finds that the testimony does not
support a finding of total disability pursuant to the Plans. See Fair, 885 F.2d at 603 (holding
that “even where the claimant introduces medical evidence showing that he has an ailment
reasonably expected to produce some pain,” a factfinder “cannot be required to believe
every allegation of disabling pain, or else disability benefits would be available for the
asking”). Perez “bears the burden of proving that [her] impairment is disabling.”
Matthews, 10 F.3d at 680. Her inconsistent, unverifiable testimony that conflicts with the
conclusions of several of her treating physicians—including Dr. Kasher, the specialist who
treated her principal gastrointestinal condition for the greatest amount of time, and at the
time of her initial claim—cannot carry this burden.7 See, e.g., Langlois v. Metro. Life Ins.
7 Nor, for that matter, is the burden carried by the testimony of Perez’s children,
which describes how Perez is affected by her condition. See Shaw, 144 F. Supp. 3d at
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Co., No. 11-CV-03472 RMW, 2012 WL 1910020, at *14 (N.D. Cal. May 24, 2012)
(“[W]here, as here, self-reported symptoms are contradicted[,] . . . the court finds the more
objective evidence to be more convincing.”).
In reaching this conclusion, the Court does not inappropriately “apply a heightened
objective standard of disability not found in” either of the Plans. Cf. Perez Opp. at 6-7, 17.
Considering, but rejecting, subjective evidence in the process of determining whether Perez
has come forward with a preponderance of the evidence establishing that she is “totally
disabled” is not the same as applying a heightened standard of proof. The cases that Perez
discusses are not to the contrary. For instance, in May v. AT&T Umbrella Beneficiary
Plan No. 1, No. 11-CV-02204 JCS, 2012 WL 1997810 (N.D. Cal. June 4, 2012), aff’d, 584
F. App’x 674 (9th Cir. 2014) (cited at Perez Opp. at 6), the court merely concluded that “it
may be arbitrary and capricious” for a factfinder “to reject [subjective] complaints” by a
claimant “without a principled reason.” Id. at *17 (emphasis added). As stated above,
however, the Court has specific reasons to doubt the veracity of Perez’s subjective
assessment of her abilities, which also conflict with the findings of several treating
physicians. See Demer, 835 F.3d at 906 (stating that a claimant’s subjective “testimony
cannot be rejected on the sole ground that it is not fully corroborated by objective medical
evidence,” but acknowledging that such testimony could be discounted where there are
“grounds for questioning [the claimaint’s] credibility”). Another case, Bergman v. Federal
Express Corp. Long Term Disability Plan, No. 16-CV-1179-BAS (KSC), 2017 WL
4310751 (S.D. Cal. Sept. 27, 2017) (cited at Perez Opp. at 6), similarly concluded that it
was an abuse of discretion to “refus[e] to credit” claimant’s self-reports of disability, but
only to do so categorically. Id. at *11.
The other cases string-cited without discussion in Perez’s briefs stand for the same,
unremarkable proposition. See, e.g., Demer, 835 F.3d at 904-06 (discussed above and cited
at Perez Opp. at 6); Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 635 (9th Cir.
2009) (cited at Perez Opp. at 6) (holding that while it “would probably have been
unreasonable for [the administrator] to require [the claimant] to produce objective proof of
his pain level,” the administrator was permitted to discount the claimant’s self-reported
disabilities when there was other evidence “to support their conclusion that [the claimant’s]
[claimant], her family and friends”—“to find that [claimant] is entitled to disability
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pain does not rise to the level of disabling pain”); Kibel v. Aetna Life Ins. Co., 725 F.
App’x 475, 477 (9th Cir. 2018) (cited at Perez Opp. at 7) (holding that district court “erred
in failing to consider the personal statement [claimant] submitted” attesting to her
disabilities at all); Holmgren v. Sun Life & Health Ins. Co., 354 F. Supp. 3d 1018, 1029
(N.D. Cal. 2018) (cited at Perez Opp. at 7) (concluding that “a disability determination may
be based on a patient’s self-reported symptoms if said reporting is credible”) (emphasis
added). None of these cases have any application here, where the Court has considered
Perez’s reports and simply found them unpersuasive considering her credibility and the
weight of all the evidence.
For all of these reasons, the Court finds and concludes that Perez’s additional non-
medical evidence fails to establish that Perez is totally disabled, as that term is applied by
the Plans in question.
V. DISPOSITION
To the extent necessary, each of the foregoing findings of fact may be deemed a
conclusion of law, and each of the foregoing conclusions of law may be deemed a finding
of fact.
Despite Perez’s assertion that LNL wrongfully denied her disability benefits in
violation of ERISA and the terms of the relevant Plans, there is little evidence in the record
before the Court to support this assertion. The evidence from Perez’s own treating
physicians, taken together, does not support a finding that Perez is totally disabled and
unable to discharge the ordinary functions of her occupation, or any other occupation. The
evidence from the independent medical examiners and medical reviewers, including an
independent medical examiner that Perez herself retained, also does not support a finding
of disability. Nor can the Court rely on Perez’s other non-medical evidence—namely,
personal narratives submitted by Perez and two of her children—to make a total disability
finding.
Accordingly, while there can be little doubt that Perez has suffered from a serious
medical condition that impairs her to some degree, there is not enough evidence before the
Court to find and conclude that Perez is totally disabled pursuant to ERISA and the terms
of the relevant Plans. See Matthews, 10 F.3d at 680 (“The mere existence of an impairment
is insufficient proof of disability.”); Jordan, 370 F.3d at 880 (“That a person has a true
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Title PEREZ V. LINCOLN NATIONAL LIFE INSURANCE CO.
her burden to establish, by a preponderance of the evidence, that she is totally disabled
from performing the ordinary functions of her occupation, her claim must be DENIED.
IT IS SO ORDERED.
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Initials of Preparer KDI