Vicky Myers v. Aetna Life Insurance Company

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

VICKY MYERS, CV 19-9555 DSF (KSx)

Plaintiff,

Findings of Fact and Conclusions

v. of Law After Court Trial on

Administrative Record

AETNA LIFE INSURANCE

COMPANY, et al.,

Defendants.

I. INTRODUCTION

This is an action for benefits under the Employee Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. Plaintiff

Vicky Myers contends she is entitled to long-term disability benefits

under the terms of the long-term disability policy Defendant Aetna Life

Insurance Company (Aetna) issued to the California Institute of

Technology (Caltech). A bench trial on the administrative record was

held on October 27, 2020. After consideration of the parties’ trial

briefs, oral arguments, and the evidence in the Administrative Record,1

the Court makes the following Findings of Fact and Conclusions of

Law.

1 The Court refers to pages from the Administrative Record as “AR __.”

II. FINDINGS OF FACT2

A. The Long-Term Disability Plan

At all relevant times, Plaintiff Vicky Myers was employed by Jet

Propulsion Laboratories (JPL). Dkt. 32 ¶ 2. JPL established and

maintained a disability insurance plan (LTD Plan) and a life insurance

plan for its employees. Id. ¶ 3. Both plans were issued by Aetna to

Caltech,3 Policy No. 866280. Id.

The LTD Plan defines “Total Disability” as follows:

From the date that you first become disabled and until

Monthly Benefits are payable for 24 months, you will be

deemed to be totally disabled on any day if, as a result of a

disease or injury, you are unable to perform with

reasonable continuity the substantial and material acts

necessary to pursue your own occupation and you are not

working in your own occupation.

After the first 24 months that any Monthly Benefit is

payable during a period of disability, you will be deemed to

be totally disabled on any day if, as a result of a disease or

injury, you are not able to engage with reasonable

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 that exists within any of the following

locations:

2 Any finding of fact deemed to be a conclusion of law is incorporated into the

conclusions of law. Any conclusion of law deemed to be a finding of fact is

incorporated into the findings of fact. Where the Court declined to adopt a

fact submitted by a party, the Court found the fact was either unsupported,

unnecessary, or irrelevant to its determination.

3 JPL employees were covered by the policies issued to Caltech. Dkt. 32 ¶ 3

n.1.

• a reasonable distance or travel time from your

residence in light of the commuting practices of your

community; or

• a distance or travel time equivalent to the distance or

travel time you traveled to work before becoming

disabled; or

• the regional labor market, if you reside or resided

prior to becoming disabled in a metropolitan area.

AR 3198.

The Policy defines “Own Occupation” as “[a]ny employment,

businesses, trade or profession and the substantial and material

acts of the occupation you were regularly performing for your employer

when your period of disability began. Own Occupation is not

necessarily limited to the specific job you performed for your employer.”

AR 3183. “Substantial and material acts” are defined as “[t]he

important tasks, functions and operations generally required by

employers from those engaged in your own occupation and cannot be

reasonably omitted or modified.” Id.

The Life Insurance Plan provides for a waiver of premium if an

insured is “permanently and totally disabled.” AR 3053. It defines

“permanently and totally disabled” as follows:

You are permanently and totally disabled under this plan

on any day if, due to disease or injury you are not able to:

• Perform with reasonable continuity all of the

material duties necessary to pursue you own

occupation in the usual and customary way; and

• Engage with reasonable continuity in another

occupation in which you could reasonably be expected

to perform satisfactorily in light of your age,

education, training, experience, station in life,

physical and mental capacity.

Id.

Under the LTD Plan, benefits are limited to 24 months when “it

is determined that the disability is, at that time, caused to any extent

by a mental condition (including conditions related to alcoholism or

drug abuse) described in the most current edition of the Diagnostic and

Statistical Manual of Mental Disorders, published by the American

Psychiatric Association.” AR 3199.

Myers’ monthly benefit of the LTD Plan was 60% of her former

salary. AR 165, 3191. She has not been paid any benefits under the

LTD Policy to date. Dkt. 32 ¶ 8.

B. Myers’ Education and Job

Myers was born on March 2, 1959. AR 535. She has a high

school diploma and attended some college courses. AR 681, 2949.

Additionally, she attended programs provided by JPL in software-

related classes and has certificates in Software Configuration

Management II, courses 1-4. AR 2949.

Myers started working for JPL in 1979. AR 2949. She has

worked in software for JPL since approximately 1994. Id. At the time

she stopped working in 2018, her job title was Software Management

Engineer and her salary was $130,000. Id. In the Work History and

Education Questionnaire she completed for Aetna, Myers described her

job as: “Be available for immediate customer support for various flight

projects[;] [p]rovide OM presentations, recommendations and

implementation of CM systems[;] [h]old project meetings, adapt

software, track, building and deploy for multiple projects[;] [s]chedule

overlapping project requests . . . .” Id. She has also reported of her job:

At JPL, I was responsible for at least six Projects. On those

Projects, I was responsible for the implementation and

change management (“CM”) support of software procedures

and processes, which included CM, code control, software

baseline management, release management and change

control board administration. I evaluated, tested and

configured the Project’s code management tools. I

identified, collected, managed and reported information

throughout the Project’s software lifecycle. I audited

Release environments at JPL and offsite facilities. I

implemented and managed the appropriate level of access

control to multiple software repositories being updated in

parallel development. Additionally, I researched alternate

methods for software code management and analyzed

findings and recommended improvements to Project

management and personnel.

AR 2477. Myers’ job “required [her] to be mentally alert and physically

able.” AR 2478.

Both Myers’ vocational expert and Aetna determined that her job

mostly closely aligns with the U.S. Department of Labor Dictionary of

Occupational Titles (DOT) job of Network Control Operator. AR 086-

087, 682, 2661. The function of a Network Control Operator is to

“[m]onitor[] data communications network to ensure that network is

available to all system users and resolve[] data communications

problems.” AR 086. “Individuals employed in this position require

college level general reasoning, 7th to 8th grade level math skills, and

high school grade level language development.” AR 683. Myers’ job

was described as sedentary by her employer. AR 682.

C. Myers’ Medical Condition

Around April of 2017, Myers began to experience reduced

cognitive ability. AR 658-59, 2478. It became difficult for her to do her

job because she “was more likely to be unable to unravel problems and

more prone to making mistakes.” AR 656. She could tell the quality of

her work was falling as it became harder for her to think through

problems and remember what she was supposed to be doing. Id.

Myers’ decline was noticed by those around her. Her co-worker

Sheila Chatterjee “noticed a significant difference in [Myers’] ability to

focus and to think clearly,” which she found to be “alarming and

worrisome.” AR 678. Chatterjee had worked with Myers on and off for

twenty years. Id. Beginning in April or May of 2017, Myers’ husband,

William Myers, “began to notice a significant physical decline in her

body, most notably extreme fatigue and muscle and joint pain that

would build-up during the work week and eventually would require her

to rest her body almost the entire weekend.” AR 658. At the time

Myers “was supporting numerous different groups for JPL and was

frequently working 12-14 hours a day to keep up with the demands

each group wanted.” Id.

While her health significantly deteriorated around 2017, Myers

had initially begun to have issues with fatigue, memory difficulty, and

pain around 2003. AR 586. At that time, she was diagnosed with

fibromyalgia and chronic fatigue syndrome and JPL enabled her to

work from home for a period. AR 015, 661. She did not completely

recover from her symptoms but recovered sufficiently to return to her

job. AR 661, 846.4

Due to her health conditions, Myers stopped working on January

5, 2018. AR 002.

On January 11, 2018, Myers saw her primary care physician, Dr.

Dino Clarizio. AR 2097-2098. Dr. Clarizio noted Myers’ inability to

concentrate and believed she could not do her job at all. AR 2959-2961.

On February 19, 2018, Myers began occupational therapy at Casa

Colina Centers for Rehabilitation twice a week to treat her chronic

fatigue syndrome. AR 2063-2064. She was referred to Casa Colina by

Dr. Clarizio for “impaired short term memory, alteration, and mental

flexibility impeding ability to return to work.” AR 2063. The Casa

Colina intake reported Myers had a relapse of chronic fatigue six weeks

prior. AR 2809. She had trouble walking and talking, pain throughout

4 Aetna notes Myers’ assertions about her condition prior to 2017 have not

been verified. Dkt. 32 ¶ 20. The Court includes Myers’ assertions about the

onset of her symptoms in 2003 for context but does not rely on them in its

ultimate finding.

her body, and cognitive and physical limitations. Id. On March 30,

2018, Myers’ therapist, Stephanie Boles, created a treatment plant for

six weeks of therapy focused on Myers’ diagnosis of cognitive

impairment. AR 2789-2792. The goals included increased recall,

executive functioning, problem solving, and word finding. AR 2792.

Myers continued to do cognitive and physical therapy with Boles who

repeatedly reported she was not ready to return to her previous level of

cognitive demand. AR 2281, 2766.

On June 16, 2017, Myers began seeing psychiatric therapist

Megan Lundgren, LMFT. AR 2047-2048. During her January 6, 2018

session with Myers, Lundgren noted that Myers complained of stress,

anxiety, and possible psychosomatic symptoms, and was “observed to

have disorganized thoughts, difficulty focusing, and work-related

fearful thoughts.” AR 2740. During further visits, Lundgren noted

Myers had “difficulty focusing on topics that are not based in anxiety.”

Id. In an August 28, 2018 letter to Dr. Clarizio, Lundgren summarized

her work with Myers, noting she had difficulty concentrating, intense

and recurrent lethargy, extreme fatigue, and forgetfulness. AR 2047.

She also observed Myers “appear[] increasingly fatigued, forgetful, and

confused throughout the course of [their] hour-long sessions.” Id.

D. Myers’ Application for Long-Term Disability Benefits

The LTD Plan has a six-month waiting period. AR 3191. JPL

called in the claim on May 15, 2018. AR 002. Aetna mailed an LTD

packet to Myers on May 17, 2018. AR 010.

On June 5, 2018, Myers filed a long-term disability claim with

Aetna. AR 006. In the Work History and Education Questionnaire, she

listed her job as Software Management Engineer and identified

approximately two years of community college and various classes she

took through JPL. AR 2949-2950.

With the claim, Myers submitted an Attending Provider

Statement (APS) from Dr. Clarizio dated June 7, 2018. AR 2959. On

the form, Dr. Clarizio listed diagnoses of chronic fatigue, fibromyalgia,

and chronic impairment. Id. Dr. Clarizio wrote that Myers was

“unable to concentrate.” Id. The report also stated Myers could work

zero hours a day5 and limited her speaking to one hour a day. AR

2959-2961.

Myers also submitted a Behavioral Health Clinician Statement

(BHCS) from Lundgren, dated June 30, 2018. AR 2736-2738.

Lundgren diagnosed Myers with generalized anxiety disorder,

dysthymic disorder, and attention deficit disorder. AR 2736. She noted

Myers’ applied focus and concentration in the session was less than five

minutes and she was easily distracted. AR 2737. Additionally, she

stated Myers switched topics frequently and her speech became

impaired when she was fatigued at the end of a session. Id. She

reported Myers was not able to fully return to work without

modification because Myers expressed exhaustion when she attended

one appointment. AR 2738. She also stated Myers could not work part

time or volunteer because Myers expressed exhaustion with basic tasks

and appeared fatigued and forgetful at the end of the therapy hour. Id.

Dr. Clarizio’s APS form indicated he had referred Myers to a

neurologist, Dr. Edward Barton. AR 2959. Dr. Barton was consulted

for cognitive complaints, myofascial pain syndrome, chronic fatigue,

chronic insomnia, and visual aura. AR 2885. Barton noted Myers’

history of “FMG, chronic fatigue, progressive problems with recall” and

that she was “[c]onfusing details, forgetting short term events,

conversations.” Id. He prescribed diagnostic tests, including an

5 Aetna repeatedly asserts that this physical assessment capacity form

provided by Dr. Clarizio to Aetna “gave Myers no physical restrictions that

would prevent her from performing her job, but limited her speaking to one

hour per day due to her alleged inability to concentrate.” Dkt. 30 at 3

(emphasis omitted). On the form, Dr. Clarizio put a slashed zero next to

“Total # of hours patient capable of working per day.” AR 2961. The Court

interprets this as Dr. Clarizio stating that Myers is not capable of working

any hours in a day. Aetna is correct, however, that he does not note any

specific physical issues limiting her ability to work, such as an inability to sit

or stand.

Electroencephalography test (EEG). AR 2886. The EEG was normal.

AR 1429.

Aetna called Myers on June 22, 2018 regarding her claim. AR

013-014. She relayed that she was being treated by the following

doctors: Dr. Clarizio, Dr. Barton, Dr. Christopher Cheng (sleep

specialist), Dr. Sean Tsai (alternative medicine), Dr. Christakis

Christodolou (cardiologist), Dr. Daniel Arkfeld (rheumatologist), Casa

Colina, and Lundgren. AR 14-15. She reported occasional pain but

emphasized her main problem was with cognition. Id. Myers reported

she had been diagnosed with chronic fatigue and fibromyalgia but was

able to work with the conditions until 2017. Id. Now, on a “good

thinking day,” she could go outside and pull weeds for 20 minutes, do a

load of laundry, and try to read or do brain puzzles as part of her

cognitive therapy. Id. The Aetna claim representative noted Myers

was “very clear in reporting multiple times about cognition problems

being the most troubling.” Id.

Aetna collected records from Dr. Tsai, who had performed

osteopathic manipulative treatment and used myofascial release and

other techniques to treat Myers’ fibromyalgia and other somatic

dysfunctions beginning on January 13, 2018. AR 2716-2717. He noted

“[i]ncreased tissue tension, altered tissue texture, decreased motion,

tenderness and/or asymmetry” in certain regions. AR 2716. At an

appointment in March 2018, Dr. Tsai noted: “Patient continues to

[complain of] having generalized body pains that are dull and constant.

Fatigue is slightly better. Body pains worsened after the last PT

session. Fatigue continues to be worse with increased activity.

Nothing makes the fatigue better.” AR 2706.

Myers called Aetna on July 25, 2018 to advise that she had

recently seen a new rheumatologist, Dr. Arkfeld, and that she would be

having a brain MRI and some cardiac testing. AR 272. Myers reported

she had been “struggling with severe fatigue, difficulty with

concentration/focus and increased pain mostly from her hips down to

her legs and knees.” Id.

Dr. Arkfeld began treating Myers’ fibromyalgia symptoms. AR

2482. Because of her increasing cognitive symptoms, on July 18, 2018,

Dr. Arkfeld referred Myers for an MRI of the brain, which she

underwent on August 8, 2018. AR 2506. Dr. Arkfeld charted that

Myers’ MRI had revealed several lesions – “scattered nonspecific T2

hyperintensities . . . in the subcortical white matter of the frontal lobes

bilaterally.” AR 2622-2623. As a result, Dr. Arkfeld referred Myers for

a variety of follow-up appointments, including one with Dr. Shijun Xi,

who specializes in the treatment of allergic and immunologic

conditions. AR 2507.

Dr. Xi evaluated Myers on August 21, 2018 and found she

exhibited “many features suggestive of mast cell activation syndrome”

and referred her for diagnostic testing. AR 3015. Shortly after, Dr. Xi

informed Myers the results of her “histamine level test [were] very

elevated, which [was] very suggestive of mast cell activation syndrome”

(MCAS). Id. MCAS can cause a wide range of symptoms, which are

often debilitating, and can impact any and all systems within the body,

frequently affecting several systems at the same time. Id. MCAS

symptoms include cognitive dysfunction, chronic fatigue, and pain. Id.

E. Aetna’s Claim Review

Aetna received and reviewed the following: medical notes from

Dr. Soon-Min Tan, a rheumatologist; medical notes from Dr. Barton;

medical notes from Dr. George Thomas, a gastroenterologist; Clarizio’s

APS; and a letter and the BHCS from Lundgren. AR 42-46.

Aetna conducted two reviews on July 5, 2018 – a behavioral

health review and a clinical review. AR 127, 362.

Aetna’s behavioral health clinician called Myers on July 5, 2018

to evaluate her claim from a behavioral health standpoint. AR 50-56.

Myers reported being out of work due to fibromyalgia, chronic pain, and

other issues stemming from these conditions. AR 55. The clinician

noted Myers had no immediately apparent functional impairments on

the call. AR 49. Based on the review of the medical records and the

discussion with Myers, the behavioral health clinician determined

there was no support for mental health impairment. AR 55.

Aetna’s nurse clinician also reviewed the records and determined

there was no clinical support for a physical impairment. AR 362. She

noted all the physical exams were “non-focal” and the labs were “not

indicative of any quantifiable diagnoses.” AR 127. Additionally, she

found there was “no demonstration of any organic cognitive loss or

physical functional loss due to any reported symptoms or diagnoses.”

Id.

After these reviews, Myers submitted additional information,

including notes from Dr. Cheng, Dr. Barton, Dr. Arkfeld, and an

endocrinologist. AR 129-131. Aetna’s nurse clinician reviewed this

information on September 4, 2018 but did not alter her evaluation. AR

128-133, 269. She noted that, as to Myers’ complaints of cognitive

issues, Myers had not provided “any neuropsychological evaluations

showing any deficits found on extensive testing with validity measures

included.” AR 269.

Based on its internal review of the medical records, Aetna found

that Myers was not disabled and notified her of the claim denial by call

and a letter dated September 28, 2018. AR 267, 361-364.

Myers called Aetna on October 1, 2018 to ask if her claim could

be reopened with a neuropsychology report she had recently obtained.

AR 267. Aetna’s claim manager told her that she could appeal the

decision and the appeal instructions were included with the denial

letter. Id.

F. Myers’ Appeal

Myers notified Aetna on November 8, 2018 that she would be

pursuing her appeal through counsel and requested her file. AR 173.

Myers appealed Aetna’s decision on April 26, 2019 through her

attorneys. AR 2504. In the appeal letter, Myers asserted that she was

physically and cognitively disabled from her occupation for reasons

other than a mental condition. AR 2509.

Following the initial appeal submission, Myers’ counsel called

Aetna to advise that they would be submitting additional documents

for appeal. AR 373. Aetna agreed to wait for these additional

documents before starting its appeal review. Id. Myers subsequently

submitted two appeal supplements that contained additional medical

records and letters from her treaters. AR 613, 634.

As part of her appeal, Myers submitted additional medical

records, a neuropsychology report from Dr. Heleya Rad, a vocational

assessment from Theresa Kopitzke, letters from treating physicians,

medical journal articles explaining MCAS and fibromyalgia, and

personal statements from herself, family, and friends. AR 2504-2517.

The report from Dr. Rad, Ph.D., reflected that she saw Myers on

September 20, 2018 for a comprehensive neuropsychological evaluation.

AR 660-671. The evaluation included a variety of tests that measured

such areas as attention, problem solving, memory, language, I.Q.,

visual-spatial skills, academic skills, and social-emotional functioning.

Id. Rad noted in taking the tests, Myers “appeared to be trying hard to

focus” but “became confused on an executive measure that required

mental flexibility, and had difficulty shifting between sets.” Id. In

interpreting Myers’ Minnesota Multiphasic Personality Inventory-2

profile, Rad found “[s]he lacks the energy to cope with everyday

problems and has difficulty with memory and concentration.” AR 668.

And, in interpreting Myers’ Behavioral Rating Inventory of Executive

Function profile, Rad found “Myers is experiencing difficulty with

behavioral and/or cognitive flexibility,” including “difficulty beginning,

starting, or ‘getting going’ on tasks, activities and problem-solving

approaches.” Id. Additionally, she found “Myers experiences

substantial difficulty holding an appropriate amount of information in

mind or in ‘active memory’ for further processing, encoding, and/or

mental manipulation.” Id. Rad noted that Myers’ difficulty sustaining

working memory had a negative impact on her “ability to remain

attentive and focused for appropriate lengths of time.” Id. Overall,

Rad found that Myers’ “profile reflects moderate decline in domains of

visual memory and aspects of executive functioning,” and that her

“cognitive difficulties interfere with her capacity for independence in

daily life.” AR 670.

Myers also submitted an April 12, 2019 vocational report from

Kopitzke. AR 680-686. The report identified the DOT occupation

“Network Control Operator” as the job most closely aligned with Myers’

job. AR 682. Based on a phone interview with Myers and a review of

medical records, Kopitzke concluded Myers was unable to perform her

occupation. AR 683-685.

Kopitzke noted Myers’ difficulties during their phone interview.

AR 681. Kopitzke stated that Myers “spoke slowly and tangentially,”

“required frequent redirection throughout the call and was at times

very difficult to follow,” “had marked difficulty describing her medical

and vocational history in an organized manner,” “demonstrated notable

problems with her ability to recall information,” including doctors’

names and specific dates, and frequently “los[t] her train of thought,

stopping in mid-sentence.” Id. Twenty minutes into the call, Myers

asked with whom she was speaking and what the class was regarding.

Id. Koptizke noted Myers’ “cognitive abilities seemed to decline as the

call progressed, as noted by her tendency to digress.” Id.

Dr. Clarizio wrote a letter, dated March 1, 2019, stating Myers “is

unable to work in any capacity” due to her multiple medical conditions

“including Fibromyalgia, Hypothyroidism, Mass Cell Activation

Syndrome, Obstructive Sleep Apnea and White Matter Abnormality on

MRI of the Brain.” AR 675.

Two letters from Dr. Xi – dated October 5, 2018 and May 6, 2019

– noted that Myers’ “[c]onstellation of symptoms combined with

positive histamine level is consistent with diagnosis of mast cell

activation syndrome, which can cause significant pain and cognitive

dysfunction, as well as other symptoms.” AR 672-673, 2451.

A letter from Dr. Arkfeld dated April 13, 2019 advised that in his

“medical opinion as a board certified physician in internal medicine and

rheumatology, Vicky Myers is completely unable to work in her position

as a software configuration manager” due to her “numerous medical

problems, the most problematic for her being neurocognitive

impairment with decreased functionality.” AR 2457-2458. He noted

“[i]n the approximately 1 year that [he] ha[s] seen her, she has not

shown any characteristics that would allow her to function due to pain

and fatigue,” with the main issue being “her difficulty thinking and

accomplishing tasks.” AR 2458.

A clinic note from hematologist Dr. Ilene Weltz dated April 23,

2019 assessed that Myers had mast cell activation syndrome. AR 2459-

2461.

Aetna sent Myers’ file to three third-party vendors for peer

review: Dr. Gary Nudell (internal medicine), Dr. Elizabeth Gay

(neuropsychology), and Dr. Eric Kerstman (aerospace medicine,

physical medicine and rehabilitation pain medicine). AR 216, 233, 249.

Dr. Nudell prepared a written report dated June 19, 2019. AR

600-612. Dr. Nudell reviewed Myers’ diagnoses of hypothyroidism,

chronic sinusitis, esophageal spasms, coronary artery spasms, chronic

urticaria, white matter abnormality of the brain, fibromyalgia, nausea,

and MCAS. AR 606. Dr. Nudell did not discuss cognitive impairment

or dysfunction because he deferred to the neuropsychological reviewer

on those matters. AR 608. After a review of the records, Dr. Nudell

found that, from an internal medicine perspective, the medical records

did not support functional impairment based on any of the documented

medical conditions because “the medical records do not specifically

document observable physical examination or diagnostic testing to

support impairment.” AR 608-611.

Dr. Gay prepared a written report, also dated June 19, 2019. AR

577-599. After reviewing Myers’ records, Dr. Gay found Myers’

reported cognitive fatigue, cognitive impairment, attention deficit

hyperactivity disorder, dysthymic disorder, emotional distress, and

memory difficulties were not preventing her from performing her

activities of daily living. AR 593. In making her findings, Dr. Gay

emphasized the medical records were inconsistent because some of

Myers’ doctors had noted she appeared to function normally during

visits, and Myers’ testing scores showed a considerable range and

variability. AR 593-594. Based on this, Dr. Gay found there was not

“consistent, cohesive, and/or confident findings of impaired cognitive

function and/or severe emotional dysregulation or behavioral

dysfunction.” AR 594.

Finally, Dr. Kerstman prepared a written report dated

September 23, 2019. AR 539-549. Dr. Kerstman determined from a

physical medicine and rehabilitation and pain medicine standpoint, the

medical documentation did not support a disabling diagnosis. AR 547.

Like Dr. Nudell, Dr. Kerstmann did not consider Myers’ cognitive

status as it is outside his area of expertise. Id. Dr. Kerstman noted

there were not significant abnormalities on physical examination or

diagnostic testing to support that Myers would be precluded from

sustained full-time activities. AR 547-548.

Aetna provided these peer review reports to Myers’ counsel for

their review and response. AR 377, 434. In response, Myers’ counsel

submitted responses from Dr. Rad, Dr. Arkfeld, and Dr. Clarizio; an

additional declaration from Myers; a fibromyalgia article; and

additional medical records. AR 487-490, 2466-2501.

In Dr. Rad’s response to Dr. Gay’s report, she disagreed with Dr.

Gay’s determination because she believed Dr. Gay’s report did not

accurately reflect Myers’ neuropsychological profile. AR 2466-2469.

Rad noted that objective findings of Myers’ neuropsychological

examination revealed weaknesses in visual-spatial organization,

working memory, visual memory, delayed memory for simple visual

information, immediate and delayed memory for a complex design,

response inhibition/set-shifting, and significant emotional distress. AR

2467-2468. In particular, Rad noted Myers’ recall of visual material fell

in the 2nd and 3rd percentile, which was indicative of a retrieval deficit

for visual information that would impact her independence and

effectiveness at work. AR 2468.

Dr. Arkfeld submitted a response to Dr. Nudell’s report. AR

2480-2481. Dr. Arkfeld disagreed with Dr. Nudell and stated that

Myers was impaired and could not work, and that fibromyalgia could

result in functional impairment.

Dr. Clarizio submitted a response to Dr. Kerstman’s report. AR

488-490. He disagreed with Dr. Kerstman’s key findings that Myers

did not have a disabling diagnosis, was not functionally impaired from

her diagnosis, and did not suffer any significant abnormalities that

support functional impairment. AR 488. Dr. Clarizio noted that he

found Myers’ reports of pain credible and that there is a basis for

functional impairment for one suffering from fibromyalgia. AR 489.

Myers also submitted a 2016 editorial from the medical journal

Clinical and Experimental Rheumatology titled “Fibro-fog.” AR 2471-

2473. The article discussed the “wide range of cognitive difficulties

such as forgetfulness, memory lapses, mental confusion, reduced verbal

fluency and diminished ability to concentrate” that patients with

fibromyalgia commonly complain of. AR 2471. According to the article,

“the most consistent cognitive deficits in [fibromyalgia] have been

found in working memory, attention, and executive function,

particularly in the presence of distractors or competing stimuli.” Id.

These additional records and responses were given to Dr. Gay

and Dr. Nudell for their review and response. Both doctors provided

addendums to their reports stating the new records did not change

their prior conclusions. AR 550-558.

By a letter dated October 29, 2019, Aetna notified Myers that its

decision would be upheld on appeal. AR 482-484.

III. STANDARD OF REVIEW

The court reviews challenges to an ERISA plan’s denial of

benefits de novo “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). When review is de novo, “the court

does not give deference to the claim administrator’s decision, but rather

determines in the first instance if the claimant has adequately

established that he or she is disabled under the terms of the plan.”

Muniz v. Amec Constr. Mgmt. Inc., 623 F.3d 1290, 1295-96 (9th Cir.

2010); see Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th

Cir. 2006) (en banc) (when a court reviews the denial of benefits de

novo, the court “simply proceeds to evaluate whether the plan

administrator correctly or incorrectly denied benefits”).

A claimant challenging a plan administrator’s decision bears the

burden of proving entitlement to benefits by a preponderance of the

evidence. See Shaw v. Life Ins. Co. of N. Am., 144 F. Supp. 3d 1114,

1123 (C.D. Cal. 2015) (citing Muniz, 623 F.3d at 1294). In a trial on the

record, the court “can evaluate the persuasiveness of conflicting

testimony and decide which is more likely true.” Kearney v. Standard

Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999); see Schramm v. CAN Fin.

Corp. Insured Grp. Benefits Program, 718 F. Supp. 2d 1151, 1162 (N.D.

Cal. 2010) (noting that, in reviewing the administrative record, “the

Court evaluates the persuasiveness of each party’s case, which

necessarily entails making reasonable inferences where appropriate”).

IV. CONCLUSIONS OF LAW

The parties agree the proper standard of review here is de novo.

In performing a de novo review, the Court is not required to accept the

conclusion of any particular treatment provider or medical file review.

For instance, the Court does not accord special deference to the

opinions of treating physicians based on their status as treating

physicians. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834

(2003). Instead, opinions must “be accorded whatever weight they

merit.” Jebian v. Hewlett-Packard Co. Emp. Benefits Org. Income Prot.

Plan, 349 F.3d 1098, 1109 n.8 (9th Cir. 2003) (citing Black & Decker,

538 U.S. at 834). However, a court may give greater weight to a

treating physician’s opinion where it is evident a particular physician

has had a “greater opportunity to know and observe the patient than a

physician retained by the plan administrator” who conducts a file

review. Id. (internal quotation marks omitted).

Here, because the relevant provisions focus on the employee’s

ability to perform the acts necessary to carry out her usual occupation,

whether Myers is “disabled” must be measured by her functional

capacity as compared to the duties of her usual occupation. Under such

a functional test, the Ninth Circuit has explained: “The mere existence

of an impairment is insufficient proof of disability. A claimant bears

the burden of proving that an impairment is disabling.” Matthews v.

Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (citations and internal

quotation marks omitted).

Therefore, reasoned assessments of what Myers can and cannot

do are given greater weight than mere statements of medical diagnoses.

See, e.g., Shaw v. Life Ins. Co., 144 F. Supp. 3d 1114, 1129 (C.D. Cal.

2015); Holifield v. UNUM Life Ins. Co. of Am., 640 F. Supp. 2d 1224,

1237-38 (C.D. Cal. 2009). Descriptions of symptomology are likewise

more helpful in determining Myers’ functional capacity than are mere

diagnoses. See Muniz, 623 F.3d at 1296 (recognizing the relevant issue

before the district court on de novo review was whether the evidence

could confirm the plaintiff’s “symptoms rose to the level of total

disability” such that she was “unable to perform” essential job duties

(internal quotation marks omitted)).

A. Myers’ Occupation

Myers’ occupation is a sedentary one that requires continuous

cognitive engagement. Aetna argues Myers can perform her job

because a “Network Control Operator’s job requirements . . . are not

difficult.” Dkt. 30 at 12. Rather than rely on Myers’ actual job duties,

it recites the tasks for a DOT Network Control Operator which include

“[e]xplain user procedures necessary to transmit data,” “[m]onitor

modems and display screen of terminal to mainframe computer to

detect error messages that signal malfunction in communications

software or hardware,” and “[r]ead technical reference manuals for

communications hardware and software to learn cause of problem.” Id.

at 13.

If Myers’ medical condition is what she claims, it is clear she

cannot perform even these “not difficult” tasks for more than short

spurts. Aetna does not dispute this, but argues “Aetna’s position has

always been that there is nothing about Myers’ neuropsychological test

scores that indicate that she has any impairment which renders her

unable to perform the occupational duties listed above.” Id. This is not

an argument about Myers’ occupational abilities but rather about her

medical condition. In other words, Aetna is not saying that Myers has

a mild impairment that still lets her perform her own occupation;

Aetna argues Myers has no such impairment. The Court therefore

concludes that if it determines Myers’ medical condition has rendered

her substantively cognitively impaired, she cannot perform her

occupation.

B. Myers’ Medical Condition

Prior to the onset of her medical difficulties, Myers worked full

time at JPL for decades. AR 2949. Her husband testified that she

regularly worked 12- or 14-hour days. AR 658. Myers’ abilities

completely transformed with the decline in her various medical

conditions. She could no longer work because basic activities resulted

in extreme fatigue. Her cognitive skills were compromised such that

she had a hard time focusing and trouble remembering. In the letter

she submitted with her appeal, Myers stated it takes her two to three

hours to get ready each day, she cannot drive more than a few miles

and sometimes has to stop in parking lots to rest, she is unable to be up

for more than an hour or two a day, she cannot read more than a few

emails before everything is blurry, she loses items easily, she

frequently loses her train of thought, and she has trouble recalling

basic details such as a neighbor’s name. AR 655-657.

Myers has been diagnosed with mast cell activation syndrome,

fibromyalgia, cognitive fatigue, and cognitive impairment. AR 582. For

these and other conditions she has, she has been treated by a variety of

methods including occupational therapy, physical therapy,

psychotherapy, medications, and trigger point injections. AR 545.

None of these treatments has been particularly successful.

Aetna’s arguments in support of its decision to deny benefits

focus largely on the lack of objective evidence such as tests to show her

disability. According to Aetna, Myers’ diagnoses coupled with her self-

reports to medical providers are insufficient. Dkt. 25 at 17. However,

Myers’ diagnosed conditions of chronic fatigue, fibromyalgia, and

MCAS are all difficult to measure objectively through tests or other

evaluations. “In the context of a condition, such as plaintiff’s,

characterized by disabling pain and fatigue, a physician invariably

relies on a patient’s descriptions of his or her condition and other types

of subjective information in making a diagnosis and in assessing a

patient’s limitations.” Tam v. First Unum Life Ins. Co., No.

CV195227FMOJEMX, 2020 WL 5904804, at *9 (C.D. Cal. Sept. 30,

2020) (citing Salomaa v. Honda Long Term Disability Plan, 642 F.3d

666, 678 (9th Cir. 2011)); see also Jordan v. Northrop Grumman Corp.

Welfare Benefit Plan, 370 F.3d 869, 872 (9th Cir. 2004)

(“[F]ibromyalgia’s cause or causes are unknown, there is no cure, and,

of greatest importance to disability law, its symptoms are entirely

subjective. There are no laboratory tests for the presence or severity of

fibromyalgia.”), overruled on other grounds as recognized by Salomaa,

642 F.3d 666.

In Salomaa, the Ninth Circuit discussed the issues surrounding

disability benefits for individuals with chronic fatigue syndrome and

fibromyalgia:

One can understand the frustration of disability plan

administrators with claims based on such diseases as

chronic fatigue syndrome and fibromyalgia. Absence of

objective proof through x-rays or blood tests of the existence

or nonexistence of the disease creates a risk of false claims.

Claimants have an incentive to claim symptoms of a

disease they do not have in order to obtain undeserved

disability benefits. But the claimants are not the only ones

with an incentive to cheat. The plan with a conflict of

interests also has a financial incentive to cheat. Failing to

pay out money owed based on a false statement of reasons

for denying is cheating, every bit as much as making false

claim. The plan has no exception to coverage for chronic

fatigue syndrome, so [the plan administrator] has taken on

the risk of false claims for this difficult to diagnose

condition. Many medical conditions depend for their

diagnosis on patient reports of pain or other symptoms, and

some cannot be objectively established until autopsy. In

neither case can a disability insurer condition coverage on

proof by objective indicators such as blood tests where the

condition is recognized yet no such proof is possible.

642 F.3d at 678; see also Holmstrom v. Metro. Life Ins. Co., 615 F.3d

758, 769 (7th Cir. 2010) (noting that for conditions such as

fibromyalgia, the court has “rejected as arbitrary an administrator’s

requirement that a claimant prove her condition with objective data

where no definitive objective test exists for the condition or its

severity”).

Viewing the record in its totality, the Court finds Myers has met

her burden of proving entitlement to benefits under the LTD Plan.

Aetna erred in relying on the opinion of three doctors who did not

examine Myers over the opinions of numerous doctors who did. While

an ERISA plan administrator need not provide in-person medical

evaluations of its claimants, the Court finds Drs. Clarizio’s, Arkfeld’s,

Rad’s and Xi’s – as well as other doctors’ and therapists’ – in-person

evaluations and observations are more persuasive than the paper

review conducted by Aetna’s three peer reviewers. See Salomaa, 642

F.3d at 676 (finding medical opinions rendered following in-person

examination more persuasive than contrary opinions from an

administrator’s paper-only review); Bunger v. Unum Life Ins. Co. of

Am., 299 F. Supp. 3d 1145, 1160 (W.D. Wash. 2018) (noting that the

plaintiff’s “claim also finds support in the evidence from every doctor

who personally examined him”); Nagy v. Grp. Long Term Disability

Plan for Emps. of Oracle Am., Inc., 183 F.Supp.3d 1015, 1031 (N.D. Cal.

2016) (“As an initial matter, none of [the insurer’s] four medical

examiners personally examined [plaintiff]; instead, each of the

examiners based his or her conclusions upon a review of [plaintiff’s]

medical records . . . . Accordingly, their reports lack the level of

credibility normally attributed to physicians who have personally

observed a patient.”); Oldoerp v. Wells Fargo & Co. Long Term

Disability Plan, 12 F. Supp. 3d 1237, 1254 (N.D. Cal. 2014) (“While an

ERISA plan administrator need not provide in-person medical

evaluations of its claimants, Simonelic’s in-person observations are

more persuasive than Goldman’s paper review.”). Myers consulted

numerous doctors across specialties and disciplines, and all found her

unable to work due to her medical condition. In short, the Court is

persuaded that, under the circumstances here, the reports by Myers’

treating physicians and therapists are valid and credible measures –

not only of Myers’ medical condition but also of her ability to work.

The Court does not find the reports of Aetna’s three reviewing

doctors6 particularly persuasive for a variety of additional reasons.

First, Aetna’s reviewing doctors reached many of their conclusions

based on the supposed discrepancies and inconsistencies in the reports

made by Myers’ treating physicians. For instance, Dr. Gay’s report

states the “clinical inconsistencies found in the medical records, across

multiple disciplines, specializations and providers would argue against

support for consistent and/or severely impaired function.” AR 593. In

addition to finding any discrepancies between Myers’ treating

physicians’ reports negligible,7 the Court notes such inconsistencies do

6 The Court evaluates the three physician reports generated on appeal rather

than the two clinical evaluations conducted by Aetna in denying the claim in

the first instance because it finds the reports more credible. By contrast,

Aetna’s nurse clinician’s reliance on labs not being indicative of “any

quantifiable diagnosis” and the lack of “demonstration of any organic

cognitive loss,” AR 059-060, is inappropriate given the nature of Myers’

conditions, as discussed above.

7 Dr. Gay relies on doctors’ reports that note that Myers presented with

normal speech, appropriate cognitive function, and no impairment of

concentration. AR 593-594. The Court does not find these reports preclude a

not automatically negate any medical condition. If Dr. Gay wished to

more persuasively articulate why such inconsistencies demonstrated

Myers did not have functional impairment, she should have explained

why the more positive health findings were more trustworthy than the

more negative ones.

To the extent Aetna relies on inconsistencies to show Myers is not

a reliable narrator – and imply she may be making a false claim – they

have not sufficiently established her unreliability. Myers’ treating

physicians, whom she interacted with in person multiple times, found

her credible. Additionally, some inconsistencies are congruent with the

variability of her condition and the mental fog it created. The Court

therefore finds her credible.8

Second, only one of Aetna’s three reviewing doctors, Dr. Gay,

actually considered Myers’ cognitive issues – the problem she

repeatedly emphasized was the main issue with her ability to work.

See AR 547 (Dr. Kerstman noting Myers’ “cognitive status will be

deferred as it is outside the area of my expertise”), 608 (Dr. Nudell

noting he “will defer any discussion regarding cognitive

impairment/dysfunction to the neuropsychological reviewer”).

finding of disability because by Myers’ own account her condition varies, and

various doctors have noted that Myers is able to function normally for limited

amounts of time.

8 Aetna also argues that Myers is being deceptive by attempting to avoid the

policy’s 24-month limitation on benefits for psychiatric disabilities by

claiming this is a physical rather than mental condition. Dkt. 30 at 8, 20.

The LTD Plan defines mental disorders as those listed in the Diagnostic and

Statistical Manual of Mental Disorders (DSM-5). AR 3199. The DSM-5 does

not include chronic fatigue syndrome, fibromyalgia, or MCAS. DSM-5 Table

of Contents, American Psychiatric Association (2013),

https://www.psychiatry.org/File%20Library/Psychiatrists/Practice/DSM/APA_

DSM-5-Contents.pdf. Yet, all have cognitive effects. Therefore, Myers’

initially emphasizing her mental cognition as the “main” problem, dkt. 30 at

20, is not inconsistent with her seeking disability for a physical rather than

psychiatric condition.

Therefore, of the three reports, only Dr. Gay’s speaks to whether Myers’

cognitive issues render her unable to work.

Third, Dr. Nudell unfairly discounted the effect fibromyalgia can

have on individuals. Dr. Nudell’s report states “[w]hile [fibromyalgia]

may result in subjective myofascial discomfort, there is overall no basis

for restrictions with activities of daily living or any other functional

impairment as a result of this myofascial pain syndrome.” AR 609.

Additionally, he notes “there is no basis for physical/medical

impairment” despite the fact that “subjective complaints of fatigue are

not uncommon with the diagnosis of fibromyalgia[ and] MCAS.” Id.

Dr. Nudell seems to state fibromyalgia cannot render one disabled,

which does not make sense – at least not in a legal context. As

explained above, the Ninth Circuit has repeatedly found that

fibromyalgia is an impairment that can render one disabled. See

Revels v. Berryhill, 874 F.3d 648, 656-57, 662 (9th Cir. 2017) (finding

the failure to construe the medical evidence “in light of fibromyalgia’s

unique symptoms and diagnostic methods” was error); Salomaa, 642

F.3d at 678 (discussing fibromyalgia in the disability plan context); see

also Kennedy v. Lilly Extended Disability Plan, 856 F.3d 1136, 1137

(7th Cir. 2017) (“There used to be considerable skepticism that

fibromyalgia was a real disease. No more.”).

On balance, the evidence weighs in Myers’ favor, and she meets

her burden of establishing her entitlement to disability benefits. A

preponderance of the evidence shows Myers’ fibromyalgia, MCAS, and

chronic fatigue syndrome preclude her from performing at the level of

mental functioning required for her job.

V. CONCLUSION

For the reasons stated above, the Court finds in favor of Myers.

Myers is to submit a proposed judgment no later than January 5, 2021.

Aetna may submit objections to the proposed judgment no later than

January 18, 2021. Counsel are to meet and confer and attempt to

resolve the issue of attorneys’ fees and costs no later than January 12,

2021. If no resolution is reached, Myers’ motion for attorneys’ fees

must be filed no later than February 16, 2021.

IT IS SO ORDERED.

DATED: December 17, 2020 □□□ a

h in \ ji les chp eA?

Honorable Dale S. Fischer

UNITED STATES DISTRICT JUDGE

25