Koehnke v. Unum Life Insurance Company of America

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

DEBBIE KOEHNKE. Civ. No. 6:23-cv-00819-AA

Plaintiff, OPINION AND ORDER

v.

UNUM LIFE INSURANCE COMPANY

OF AMERICA

Defendant.

________________________________________

AIKEN, District Judge:

The Employee Retirement Income Security Act (“ERISA”) provides that an

ERISA plan “participant” may bring a civil action in federal court “to recover benefits

due to [them] under the terms of his plan, to enforce [their] rights under the terms of

the plan, or to clarify [their] rights to future benefits under the terms of the plan[.]”

29 U.S.C. § 1132(a)(1)(B). Plaintiff Debbie Koehnke, a participant in an employee

welfare benefit plan established by her former employer, Morrow Equipment

Company (“Morrow”), brings this civil action to challenge the decision made by

Defendant Unum Life Insurance, denying her long-term disability (“LTD”) benefits

under the terms of the plan. Before the Court are the parties’ opposing motions for

judgment on the administrative record, ECF Nos. 26 and 28. The Court finds this

matter appropriate for resolution without a hearing. See Fed. R. Civ. P. 78.

For the reasons explained, the Court

BACKGROUND

The factual findings are discussed below in detail. As introduction, Plaintiff

has long suffered from a degenerative disc condition in her lower spine, a condition

confirmed by repeated MRI scans and X-rays. After slipping and falling on ice in

February, her condition was aggravated. Plaintiff left her desk job and applied for

and received short-term disability benefits. Plaintiff eventually applied for long-term

disability benefits, which Defendant denied. Plaintiff then unsuccessfully availed

herself of Defendant’s administrative appeals process.

Plaintiff argues that she is disabled from her “regular occupation” and “all

occupations” due to her injuries and illness, which include severe and chronic low

back pain, fibromyalgia, hip pain, a seizure disorder, and sedation from her

prescribed medications. She argues that she cannot perform the material and

substantial duties of her job, or any job for which she is qualified. Plf. Br. at 4.

Defendant refutes Plaintiff’s claim that she is disabled under the terms of its

policy, arguing that she improperly exaggerates her medical condition. Def. Resp. at

2. Defendant also challenges the reliability of Plaintiff’s treating physicians. Def. Br.

at 17–21. Defendant asserts that Plaintiff’s treating physician is not reliable because

(1) the physician did not initiate the suggestion that Plaintiff stop working; (2)

medical exam notes documented that Plaintiff presented to her exams in “no distress”

and “without significant abnormalities”; and (3) her treating physician merely

endorsed Plaintiff’s reported symptoms. Id. For those reasons, Defendant urges the

Court to afford greater weight to its own specialists who reviewed Plaintiff’s medical

records. Def. Resp. at 17. Defendant also asserts that Plaintiff’s claim for disputed

benefits arising under the “any occupation” of the plan is not properly before the

Court, only her claim for benefits under the “regular occupation” definition of the

plan.

LEGAL STANDARDS

ERISA allows a plan participant to recover benefits due to them under the

terms of the plan, to enforce their rights under the terms of the plan, or to clarify

their rights to future benefits under the terms of the plan. 29 U.S.C. § 1132(a)(1)(B).

District courts review a plan administrator's denial of benefits “under a de novo

standard unless the benefit plan gives the administrator or fiduciary discretionary

authority to determine eligibility for benefits.” Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101, 115 (1989). The parties agree that the Court should review Defendant’s

benefits decision de novo. Def. Br. at 16-17; Plf. Br. at 3.

Under de novo review, “‘[t]he court simply proceeds to evaluate whether the

plan administrator correctly or incorrectly denied benefits.’” Opeta v. Nw. Airlines

Pension Plan for Cont. Emps., 484 F.3d 1211, 1217 (9th Cir. 2007) (quoting Abatie v.

Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006)). The review is limited

to the evidence before the plan administrator except “when circumstances clearly

establish that additional evidence is necessary to conduct an adequate de novo

review.” Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d

938, 943 (9th Cir. 1995).

Moreover, when the parties elect to proceed under a Federal Rule of Civil

Procedure 52 motion for judgment, the court essentially conducts “a bench trial ‘on

the papers.’” Kieserman v. Unum Life Ins. Co., 574 F. Supp. 3d 896, 900 (W.D. Wash.

2021) (quoting Muller v. First Unum Life Ins. Co., 341 F.3d 119, 124 (2d. Cir. 2003)).

That is, the court will ask “not whether there is a genuine issue of material fact, but

instead whether [the claimant] is disabled within the terms of the policy.” Kearney v.

Standard Ins. Co., 175 F.3d 1084, 1094–95 (9th Cir. 1999). It may then “evaluate the

persuasiveness of conflicting testimony and decide which is more likely true.” Id.

Thus, the court may make factual findings, evaluate credibility, and weigh the

evidence before it to determine whether the administrator correctly or incorrectly

denied benefits. See Anderson v. Liberty Mut. Long Term Disability Plan, 116 F. Supp.

3d 1228, 1231 (W.D. Wash. 2015). Similarly, the court must make reasonable

inferences where appropriate. Oldoerp v. Wells Fargo & Co. Long Term Disability

Plan, 12 F. Supp. 3d 1237, 1251 (N.D. Cal. 2014). In turn, the court need not give

deference to the claim administrator's decision. Muniz v. Amec Const. Mgmt., Inc.,

623 F.3d 1290, 1295–96 (9th Cir. 2010). A plaintiff challenging a benefits decision

under 29 U.S.C. § 1132(a)(1)(B) bears the burden of proving entitlement to benefits

by a preponderance of the evidence. Id. at 1294.

FACTUAL FINDINGS

A. Plaintiff’s Medical Background

1. In 2004, Plaintiff established care with Kaiser Permanente in Oregon.

She had a history of seizures, fibromyalgia, knee pain with occasional flareups, and

a diagnosed subluxation of the patella on the femur. (AR 1473, 2870, 2877, 2884).

Plaintiff’s prescribed medications included Dilantin, Ultram, and Alprazolam. (AR

2880, 2884).

2. In January 2006, Plaintiff reported chronic pain from fibromyalgia and

reported her pain management as “stable.” (AR 2857).

3. In August 2006, Plaintiff was involved in an accident where she was

thrown off a jet ski traveling at 55 miles per hour. (AR 2886). After the accident, she

reported to her physician low back pain and was prescribed over-the-counter anti-

inflammatory medication. (AR 2850). However, after a few days, Plaintiff presented

to the emergency room with intense pain that radiated through the left leg to her

ankle and was treated with Toradol and morphine injections and prescribed

oxycodone. (AR 2846).

4. An MRI showed that Plaintiff had multilevel degenerative disc disease

at the L1-2 and L4-5 level of her spine and a superior disc extrusion at the L4-5 “with

associated deformity of the left ventral aspect of the thecal sac and marked narrowing

of left lateral recess with also contact of the left exiting L4 nerve root.” (AR 2841).

Plaintiff’s physician reported that she appeared in pain and had difficulty standing

upright. .

5. Six weeks after her jet ski accident, Plaintiff underwent spinal surgery

for what her neurosurgeon described as a “quite large L4-5 herniated nucleus

pulposus on the left.” (AR 2820).

6. In August 2007, Plaintiff presented for care for her seizure disorder. (AR

2806-10). Her physicians also noted tender points in her body consistent with

fibromyalgia and that she had been taking Ultram for pain management for more

than five years without the need to increase the dosage. (AR 2802, 2807–08).

7. In April 2010, Plaintiff reported to her doctors an increase in her back

pain that included numbness, tingling, and weakness in the lower extremities, down

her thigh, past the knee, and across the shin. (AR 2695). Plaintiff’s primary care

physician, Dr. Catherine Chester, prescribed Plaintiff hydrocodone-acetaminophen to

add to her medication regimen and referred to physical therapy. .

8. In August 2010, Plaintiff visited Dr. Chester after she had been

experiencing low back pain for three weeks, possibly onset after she had done some

weeding and gardening. (AR 2672). Dr. Chester’s notes document Plaintiff’s report

that it was painful for her to sit for prolonged times at work. . She was prescribed

physical therapy as well as muscle relaxant medication in conjunction with an

NSAID. .

9. At Plaintiff’s first physical therapy appointment, she reported that she

had been avoiding sitting and most activities to reduce her pain, which was

exacerbated by sitting, standing, and prolonged walking. (AR 2653–54).

10. In July 2011, Plaintiff saw a rehabilitation specialist, Dr. Maureen

Carney, for numbness in her left leg and bilateral leg pain. (AR 2616–18). Dr. Carney

documented Plaintiff’s report that she felt she could do “hardly any activity for long,”

and must “frequently stop to recover” from “aching, burning, throbbing pain.” . A

lumbar MRI was ordered, given Plaintiff’s history of back surgery. Her rehabilitation

specialist noted that Plaintiff was “at risk for spinal stenosis and some of her

symptoms are supportive of this. If that is not demonstrated on imaging, I do not

think I would have another recommendation for her.” .

11. Plaintiff’s 2011 MRI revealed that Plaintiff’s degenerative disc condition

had not improved at all since the pre-surgery condition of her injury in 2006.

Specifically, her condition showed “increased moderate left L4-L5 neural foraminal

narrowing,” and “[m]ultilevel degenerative disk disease elsewhere [that] is not

substantially changed compared to 2006.”

12. In May 2012, Plaintiff reported to Dr. Chester ongoing low back pain

and sciatica, explaining that it was growing steadily worse with aching and sharp

pain that sometimes radiated to her left leg and caused a numb sensation. (AR 2603).

Concerned about interactions between her anti-depressant medication and pain

medications, Dr. Chester prescribed gabapentin to replace Plaintiff’s fluoxetine

prescription. . However, Plaintiff reported that the gabapentin made it difficult to

think, so she therefore only remained on tramadol and hydrocodone-acetaminophen.

(AR 2588).

13. In February 2013, Plaintiff’s physicians documented continued back

pain, along with pain in Plaintiff’s upper back, neck, elbows, hips, and knees,

associated with fibromyalgia pain. (AR 2577). Her medication was changed to

Cymbalta. (AR 2580).

14. In April 2013, Plaintiff took time off work, reporting intolerable back

pain, and realized that her back seemed to feel better when she was not sitting for

extended periods. (AR 2555).

15. In May 2013, Plaintiff was working six hours a day and had increased

her walking. (AR 2542). Her doctor prescribed her a fentanyl patch to help with pain.

.

B. Plaintiff’s Medical Record During Employment at Morrow Equipment

16. Plaintiff started a new job as a Document Control Manager for Morrow

Equipment, beginning September 29, 2014, to May 15, 2021. (AR 002, 228).

17. In November 2014, Dr. Ulrike Guempel became Plaintiff’s primary care

provider. (AR 2512).

18. Dr. Guempel documented Plaintiff’s history of fibromyalgia and her and

reports of having “ups and downs,’” “‘good days, bad days, and really bad days,’” and

noted that she “[t]ries to push through the bad days.” . The 2006 surgery had

provided “relief of her low back pain for approximately 3 years,” but “[w]ith time pain

has slowly recurred,” such that “[a]t this point she is unable to stand or sit for a

prolonged time of greater than 1 hour,” and “[b]est if she can move around every 30

minutes or so.” . Plaintiff’s pain was being treated with tramadol (or Ultram) and

norco, plus oxycodone for more severe pain, which she needed 2 or 3 times a year.

19. In June 2015, Plaintiff went to urgent care for radiating low back pain.

(AR 2478). Her physician noted that Plaintiff had chronic back pain, and that Plaintiff

reported feeling that the pain had been “exacerbated without inciting factor.” .

20. In July 2015, Plaintiff visited Dr. Guempel who documented that

Plaintiff experiences flares of low back pain and that “no one thing [ ] triggers the

flares other than prolonged sitting[.]” (AR 2473). Dr. Guempel also documented that

Plaintiff has four small grandchildren and that Plaintiff lifts them and sits on the

ground to play with them. .

21. Dr. Guempel advised Plaintiff to try a workstation that included a sit to

stand desk. .

22. In August 2015, Plaintiff’s back pain became severe, and she reduced

her work hours to four per day for two weeks. (AR 2459).

23. In October 2015, Plaintiff went to urgent care for increased low back

pain with radiation to lower abdomen. (AR 2451). Doctors told Plaintiff to avoid

sitting and bending. (AR 2450–51). Plaintiff remained on opiate medication for

chronic pain. (AR 2410, 2394, 2386, 2378, 2368).

24. In May 2016, and again in June 2018, Dr. Guempel called Plaintiff to

manage her medications and discuss adjunctive care for chronic back pain. (AR 2410,

2403, 2350).

25. In April 2018, Plaintiff reported to Dr. Guempel “My spine is killing

me[.]”. (AR 2230).

26. In February 2019, Plaintiff took extra pain medication to tolerate

driving to Astoria, Oregon, to visit her mother who had suffered a stroke. (AR 2124).

Because Plaintiff had taken more medication than initially allowed by her provider,

she agreed to a monitoring and information sharing plan with Dr. Guempel if pain

flares caused her to need increased medication. .

27. In June 2019, Plaintiff was partially disabled by a “flare of her

fibromyalgia and increase in chronic low back pain.” Thus, she took time off work and

was approved for short-term disability benefits. (AR 2106).

28. In late July, Plaintiff returned to work full-time for about five weeks but

was not able to sustain that schedule due to her low back pain. (AR 2097). She

reduced her work hours to part-time again. . Accordingly, Dr. Guempel authorized

Plaintiff to return to part-time work for the remainder of her short term disability

benefit period “to allow her to decide if she wants to remain on the job at all.” .

29. Plaintiff was devoted to her job and enjoyed going to work. (AR 2887,

2890, 2895).

30. In March 2020, during the COVID-19 pandemic, Plaintiff returned to a

full-time schedule working remotely from home. (AR 2045). She anticipated that

being able to change positions frequently would allow her to continue to work, but

she found that it did not. She told Dr. Guempel, “sitting is my worst [n]emesis,” and

that she could not sit for more than 20 minutes without her back pain becoming

unbearable. .

31. Even with these challenges, Plaintiff’s employment review for 2020

stated that Plaintiff exceeded expectations and that she maintained a high level of

expertise. (AR 2896-2906)

32. In October 2020, Plaintiff became a patient at Kaiser’s Sunnybrook

Spine Center. (AR 1979, 1986). There, an MRI from October 2020 was compared to

an MRI taken in 2013. (AR 1925) The comparison showed:

a. Progressive degenerative changes at L3-4, with new left lateral

recess stenosis, worsened moderate left neuroforaminal stenosis,

and unchanged mild right neuroforaminal stenosis. .

b. Progressive L5-S1 facet degeneration, with unchanged mild right

and minimal left neural foraminal stenoses. .

c. Unchanged L4-5 posterior decompression, degenerative disc

disease and facet degeneration, and mild to moderate right and

moderate to severe left neural foraminal stenoses. .

d. Unchanged L1-2 small disc bulge. No stenosis. .

33. Plaintiff took on physical therapy sessions in November and December

of 2020 with Megan Swift, D.P.T. (AR 1953–55, 1943–46, 1932-35, 1916–19). Her

therapist noted that Plaintiff’s progress had been poor, and progress was slow. (AR

1918). Her therapist also noted that further physical therapy was not recommended,

due to low pain tolerance. .

34. On December 24, 2020, Plaintiff received an epidural steroid injection

for pain relief. (AR 1924–26).

35. In February 2021, Plaintiff slipped on ice and fell on two different

occasions. (AR 1869, 1888). These accidents greatly exacerbated her pain. .

36. In April 2021, Plaintiff told Dr. Guempel that she was considering

taking a leave from work due to ongoing low back and bilateral hip pain. (AR 1875).

Dr. Guempel documented that sitting for 20 to 30 minutes exacerbates lower back

pain and standing more than fifteen minutes exacerbates her bilateral hip pain. .

Dr. Guempel approved medical leave/short term disability from mid-May through

mid-August 2021 due to Plaintiff’s chronic pain, which was exacerbated by both

sitting and standing. (AR 1860).

37. In May 2021, Dr. Guempel let Plaintiff know that it was unlikely that

another surgery would successfully treat her back pain, evaluating and explaining to

Plaintiff the relevant literature and findings. . Dr. Guempel did not think that the

risk-to-benefit ratio for spinal surgery would be appropriate. .

38. Dr. Guempel approved medical leave from mid-May through mid-

August due to Plaintiff’s chronic pain, which was exacerbated by both sitting and

standing. (AR 1860). Plaintiff took her leave from work beginning May 13, 2021.

C. Plaintiff’s Medical Record During the Elimination Period

39. In June 2021, x-rays showed degenerative changes in Plaintiff’s spine.

(AR 1340). That same month, an electromyography to measure the electrical activity

of Plaintiff’s muscles and nerves came back unremarkable. (AR 266–67).

40. In August 2021, an MRI showed increased deterioration: “At L4-5, left

greater than right facet arthropathy is slightly increased [from 2020]. In combination

with a small posterior disc osteophyte ridge, this likely causes impingement of the

traversing left L5 nerve root.” (AR 1504).

41. On August 11, 2021, Plaintiff discussed with Dr. Guempel an extension

of her disability leave. (AR 1834). Dr. Guempel noted, “it remains unclear what the

next steps in her care will be and how long the process of arranging the treatment

plan will take. Says she is unable to return to work until she has some type of

resolution of her symptoms.” .

42. On August 23, 2021, Physician Assistant Ryan Cate examined Plaintiff

and documented no “tenderness, swelling, or tender trigger points,” and a negative

straight leg raise test. (AR 441). PA Cate, however, adjusted Plaintiff’s pain

medication doses and noted, “Patient needs to be on continued disability[,] she has

a[n] epidural injection scheduled for the 30th[,] will then need to reassess after 2

weeks[,] may need follow-up with neuro surgery if not improving.” (AR 284).

43. On August 30, 2021, Plaintiff had another epidural steroid injection, but

did not experience relief. (AR 290). PA Cate examined her the next day and

documented that Plaintiff had “some nerve root compression” on her left side. (AR

292).

44. On September 23, 2021 Plaintiff saw internist Dr. Tin Zar Aung, who

documented that Plaintiff has pain with standing and sitting. (AR 294).

45. In October, Plaintiff began the process to request long term disability

benefits, completing the proper claimant form and noting that she was unable to sit

or stand for long intervals because, “as pain escalates” she loses focus and cannot

concentrate on her tasks. (AR 52).

46. Plaintiff had been on medical leave or short-term disability since May

13, 2021, her last day of work. (AR 58). Between May 15, 2021, and November 10,

2021, Plaintiff had at least eight office/video visits related to her back pain and/or

medication management with Dr. Guempel. (AR 4776).

47. Plaintiff’s elimination period ended November 10, 2021. (AR 464).

D. Dr. Guempel’s Opinion in Support of LTD Claim

48. The Court finds the opinion of Dr. Guempel highly credible and

persuasive, given her in-person treatment history and direct examinations of

Plaintiff, spanning back to 2014. Dr. Guempel had had the opportunity to evaluate

Plaintiff’s character and credibility over seven years. She was in an ideal position to

determine whether or not Plaintiff was disabled.

49. In support of Plaintiff’s LTD claim, in November 2021, Dr. Guempel

submitted an Attending Physician Statement (“APS”) to Defendant. (AR 97-99). In

the APS, Dr. Guempel noted the following restrictions: “Sitting for 20-30 minutes at

a time exacerbates her lower back pain and standing for >15 mins exacerbates her

bilateral hip pain.” (AR R 98). Dr. Guempel indicated the primary condition impacting

Plaintiff’s functional capacity was “lumbar radiculopathy.” (AR 97). “Bilateral hip

pain” was Dr. Guempel’s secondary diagnosis. . Dr. Guempel stated she did not

know how long these restrictions would last. (AR 98).

50. The APS form includes the question, “What diagnostic or clinical

findings support” the patient’s restrictions?” . Dr. Guempel wrote “Lumbar spine

MRI 9/1/21 with evidence of facet arthropathy L4-L5 likely causing impingement of

the traversing left L5- nerve root.” .

51. In response to the request to provide documentation of the treatment

plan leading up to the disability determination, Dr. Guempel noted ongoing

treatment of lumbar radiculopathy, with “[n]o improvement in symptoms despite

[multiple] different treatment modalities, including PT, acupuncture, chiropractic

care, epidural steroid [injection] x 2.” . Dr. Guempel noted that Plaintiff was

currently taking Duloxetine, Methocarbamol, and Percocet for pain management and

had been evaluated by neurosurgery and surgery not “felt to be indicated at this

time.” .

52. In conjunction with Plaintiff’s appeal, Dr. Guempel again opined that

Plaintiff had experienced increasing and debilitating pain. Dr. Guempel stated that

Plaintiff had “worked diligently to control her lower back and hip pain with physical

therapy, a massage chair, an inversion table, acupuncture, and medications,” and

that none of those interventions had given Plaintiff sufficient pain control. (AR 1322).

53. In the same opinion, Dr. Guempel stated that if Plaintiff returned to

work, she would “miss multiple days of work every month” due to pain and that she

would be “unable to complete a full day’s work without extended breaks to allow her

to lie down in between brief periods of sitting.” . Dr. Guempel also agreed with the

FCE evaluation, stating that Plaintiff “does not have the physical capacity to be a

productive and reliable employee.” .

E. Unam LTD Policy and Claim Review

54. Under Defendant’s policy, “disability” is defined as being limited from

performing the material and substantial duties of an employee’s “regular occupation,”

or, after 24 months, the duties of “any occupation” they are qualified to perform. (AR

466). An employee must be continuously disabled for 180 days from their date of

disability. This period is referred to as the elimination period and must be satisfied

before any LTD benefits may become payable. . The policy requires that a person

must be “continuously disabled through [the] elimination period.” .

55. In October, 2021, Plaintiff completed Defendant Unum’s LTD claimant

form stating that she was not able to “sit[] for long intervals, stand[] for long intervals,

as pain escalates I lo[]se focus and am unable to concentrate on any tasks required.”

(AR 52). As noted, Plaintiff’s claim was submitted for “lumbar radiculopathy and

bilateral hip pain” by Dr. Guempel, who had certified Plaintiff as disabled. (AR 464).

56. Defendant interviewed Plaintiff. (AR 186-191). In the interview,

Plaintiff describes the difficulty she has managing constant pain. (AR 186–87). She

described her baseline level of pain as a 4 or 5 out of 10, that goes up to 8 out of 10

when “she does too much or sits too much.” (AR 188). Plaintiff identified her pain as

the only barrier preventing a return to work. (AR 189).

57. Defendant consulted with its own physicians to review Plaintiff’s

medical records. Its consulting physicians did not exam Plaintiff in person.

58. Defendant’s medical consultant, Dr. Rosemary Szollas, asked Dr.

Guempel if Dr. Guempel agreed that Plaintiff did not have “restrictions precluding

[her] from performing her light occupational demands on a full-time basis…beyond

11/11/21,” pointing to the fact that Plaintiff’s “job activities” include “occasional”

walking and “frequent,” sitting and standing, and that her “position allows changes

in position to adjust for comfort.” (AR 437).

59. Dr. Guempel responded that she did not agree with the statement and

explained that Plaintiff had worked from home for two years “with the opportunity

to sit, stand, or lie down as needed” without any lessening of pain from doing so. (AR

438). In Dr. Guempel’s view, “allowing for positional changes in the actual work place

would likely also not be beneficial.” .

60. Defendant’s vocational representative, Gabriella Vargas, reviewed

Plaintiff’s claim. (AR 256). She characterized Plaintiff’s occupation as “Document

Control Clerk Engineering,” and wrote that the occupation required standing or

walking more than 15 minutes, and that “[i]f only able to stand 15 mins at a time,

[Plaintiff] would not be able to perform document processing for distribution with

reasonable continuity.” Further, Ms. Vargas wrote that that even “alternating

between sitting (20-30 min) with positional change to standing for at most 15 min

would impact the worker’s ability to perform job tasks with reasonable continuity.”

(AR 256).

F. Defendant’s Denial of Benefits

61. On January 25, 2022, Defendant sent Plaintiff notice that it denied

Plaintiff’s claim for benefits, stating, “We have determined you are not disabled

according to the policy and benefits are not payable.” (AR 463).

62. Defendant provided its reasons for the denial, summarizing its

consulting physician’s review of Plaintiff’s medical record, which it asserted does not

support Plaintiff’s claim that she is disabled.

63. Defendant stated that Plaintiff’s “light” occupation as a Document

Control Manager “require[s] frequent sitting and occasional standing and walking,”

and that the “duties of this occupation would allow for changes in position for brief

periods of time throughout the day.” (AR 464). According to Defendant, “positional

changes would be within the occupational demands.” (AR 465).

64. Defendant acknowledged Dr. Guempel’s determination—that

frequently changing from sitting to standing would not be beneficial—but responded

that its own physicians disagreed with that assessment. (AR 465–66).

65. Defendant had two board certified occupational medicine physicians

review Plaintiff’s medical records, and based on the records, determined Plaintiff

“could perform the light occupation duties on a full-time basis.” (AR 464). The file

reviewers were Dr. Szollas and Dr. Zachary Gross. (AR 440-44, 452-54). Defendant

drew from Dr. Szollas’ and Dr. Gross’s opinions in reaching its decision.

66. Defendant pointed out that Dr. Aung’s September 23, 2021, exam notes

state that Plaintiff “exhibited no tenderness, palpable spasm, or pain on motion.” .

67. Defendant referenced Ryan Cate’s exam findings on August 23, 2021,

where he documented that Plaintiff “ambulated without assistance, had no difficulty

moving on or off the examination table, or changing positions or rising from a chair.”

Further, that “the straight leg test bilaterally was negative.” (AR 465). Despite the

notes also documenting that “[r]ange of motion at the back described pain with flexion

and left sided tenderness and spasm of the lumbar paraspinal muscles,” Defendant

determined that PA Cate’s “exam findings would not be expected to impact

functionality at the light occupational demand level.” .

68. As to Plaintiff’s visit with Dr. Kaul on August 5, 2021, Defendant

pointed to a few of Dr. Kaul’s general exam notes, including that Plaintiff’s “[c]ranial

nerves [were] intact” and that there were “[n]o deficits of the upper extremities.”

Defendant acknowledged that Dr. Kaul also found “tenderness” in Plaintiff’s “right

trochanteric posterior” and “hypesthesia in the left S1 region.” . Despite the fact

that Plaintiff had never complained about her cranial nerves or upper extremities,

and only complained of low back pain, Defendant stated that Dr. Kaul’s “findings”

would not be expected to impact Plaintiff’s occupational functionality. .

69. Additionally, Defendant notes that MRI readings of the lumbar spine

showed an “L4-5 arthropathy with a small posterior disc osteophyte ridge that was

likely causing impingement of the left L5 nerve root. . However, Defendant focused

on Dr. Kaul’s interpretation of the MRI, pointing out that Dr. Kaul wrote that the

MRI “may show a left L5 lateral recess stenosis but difficult to be sure, the moderate

to severe left neural foraminal stenosis does not fit well with her current symptoms.”

. The exam, however, was related to Dr. Kaul’s EMG at Dr. Guempel’s request to

rule out Meralgia Paresthetica. (AR 266) (noting Dr. Kaul’s “further study:

recommendations and referral notes). Reading the exam notes in full context, Dr.

Kaul’s note explains that the MRI would be a good symptom imaging match for when

Plaintiff was experiencing the numbing and tingling in her left anterior shin. At any

rate, the note Defendant points out does not discredit Plaintiff’s L5 radiculopathy.

70. Defendant also based its denial on the fact that Plaintiff had reported to

Dr. Aung that she did not have pain walking, but she had pain with sitting and

standing, and that Plaintiff told Dr. Aung that it could be related to her fibromyalgia.

(AR 465). Moreover, that a neurosurgical evaluation determined surgical

intervention unwarranted; medications were stable; and as noted, An EMG study did

not correspond to symptoms of Meralgia Paresthetica. .

71. According to Defendant’s physician’s review, described in ¶¶ 66–70,

Plaintiff could have returned to the “full-time material and substantial duties” of her

regular occupation as of May 15, 2021. .

72. The Court finds that basis for denial was drawn from medical exam

notes cherry-picked by Defendant’s physicians from Plaintiff’s medical record, and

that many of the cited-to exam notes were not relevant to the lower back pain of which

Plaintiff complained and on which she based her claim. The summarized physician’s

review in Defendant’s denial letter singles out generic exam notes that describe how

Plaintiff generally appeared at her visit, while ignoring or dismissing relevant clinical

findings and diagnostics that support her complained of symptoms. The summarized

physician’s review also takes certain exam notes out of context.

G. Plaintiff’s Appeal of Administrator’s Decision

73. After Defendant denied Plaintiff’s claim for disability, she continued to

receive medical care and present for physical exams.

74. On March 30, 2022, occupational therapist Christina Cassady

administered a functional capacity evaluation (“FCE”) that lasted nearly four hours.

(AR 3629). The FCE measured productivity levels on “work sample activity, limited

sustained activity tolerances for sitting, standing, and walking, and compromised

functional body mechanics posture.” . The FCE found that Plaintiff, even using

“high” effort, could not perform a sedentary occupation, and that Plaintiff’s

limitations were consistent with that of a “sub-sedentary” work tolerance. .

Further, Plaintiff was determined unable “to sustain gainful vocational activity on a

reasonably-continuous basis.”

75. On April 21, 2022, Plaintiff saw Dr. Guempel one last time before Dr.

Guempel retired, complaining of pain exacerbated by the FEC testing. (AR 1685). Dr.

Guempel reviewed the FCE report, and a letter Plaintiff wrote for Dr. Guempel. Dr.

Guempel signed the letter for Plaintiff in support of Plaintiff’s disability appeal. (AR

1321–22).

76. In May, Plaintiff established care with her new primary care doctor, Dr.

Lina Tanako. (AR 1677-80). Dr. Takano had an extensive discussion with Plaintiff

about her medications, including finding alternatives to narcotic prescriptions. (AR

1679). Dr. Takano also provided a letter confirming the restrictions on Plaintiff’s

ability to work and the pain caused by her low back degenerative disc problems. (AR

4803).

77. Plaintiff’s family provided statements describing Plaintiff before and

after chronic low back pain.

78. Her husband described her active life, and that, as time went on, “the

pain and time to recover forced her to make extreme changes to what she did,” and

that she “can’t do near the things she used to do.” (AR 2889-90)

79. Plaintiff’s son, a law enforcement officer, described his mother as “one

of the strongest and hard-working persons I know,” explaining that Plaintiff had a

high level of activity and engagement before the onset of chronic pain:

My father has bought her a very expensive massage chair and she takes

medication, but it only nips at the issues. She will always fight and put

on a good face, but there is no doubt she is simply limping along, trying

to be a fun grandma, while masking the pain and issues she is enduring.

She can only stand or walk for short durations before having to sit. Once

seated she can only be seated for short durations before having to lay

down. She struggles throughout the day with pain, and by the end of the

night she often has to go to bed early from having to cope with the

struggle. She often has to sit out on many of our family vacation

activities. (AR 2891-92).

80. Plaintiff’s daughter-in-law describes Plaintiff as “highly functioning”

and attests to her energy, stamina, and persistence in seeking out ways to overcome

the “debilitating” pain, lamenting that Plaintiff must sometimes “stay behind and

miss out because she can no longer participate.” (AR 2893-94). She recalled a family

party where Plaintiff could not “move from a sitting position” and had “tears

streaming down her face.” .

81. Plaintiff appealed Defendant’s denial in July 2022. (AR 1306–20).

Plaintiff provided Dr. Guempel’s April 2022 letter, (AR 1321–22); updated medical

records (AR 1323–2885); the FCE Report (AR 3627–42); Dr. Takano’s letter (AR

4803); Kaiser’s updated medical records (AR 4804–5115); MRI reports (AR 5116–18);

Plaintiff’s own supplemental statement addressing Dr. Green’s opinion that Plaintiff

does not suffer severe pain. (AR 5128).

82. In August 2022, Defendant obtained additional reviews by Drs. Szollas

and Gross. (AR 2927–36, 2939–41).

83. Dr. Szollas reviewed the medical record dating back to 2006, along with

the new information Plaintiff submitted and found no change from her previous

opinion. (AR 2928). Dr. Szollas’s findings were not different than those summarized

in Defendant’s first denial letter. She concluded that “physical exam findings do not

support that [Plaintiff] is precluded from performing the occupational demands” of

her job. (AR 2932). She opined that “findings at the lumbar spine have been described

as relatively benign by her treating [physicians].” (AR 2933). She reasoned that

surgical intervention was not recommended, medication regimen remained stable,

including her opioid regimen, and that Plaintiff had worked fulltime for many years

with reported low back pain. (AR 2933–34). Dr. Szollas also did not credit the FCE,

stating that Plaintiff’s “documented exam findings” over the years were “not

consistent” with the limitations stated in the FCE. (AR 2933).

84. The Court gives Dr. Szollas’ opinion some weight but finds that it gives

more credit to less relevant examination findings and less credit to pertinent

diagnostics in the same exam—findings and determinations that are relevant to

Plaintiff’s complained of pain. Dr. Szollas does not provide a rationale for discrediting

Plaintiff’s subjective reports of pain. In citing Plaintiff’s successful work history

despite chronic pain, Dr. Szollas does not explain why long-term treatment for a

condition that has not improved renders Plaintiff’s reported symptoms

not credible. The opinion that Plaintiff’s physical exams were “benign” cannot be

squared with a medical record that includes MRIs in July 2011, March 2013, October

2020, and August 2021 that identified degenerative disc disease, facet arthropathy,

bone spurs, and nerve root impingement. (AR 1504, 2618–19, 1925, 1418–19)

85. Dr. Gross reviewed the new records Plaintiff submitted, including past

records, stating “my previous decision remains unchanged.” (AR 2940). Dr. Gross

stated that the most “pertinent information” was that Plaintiff’s exams had been

“normal exams.” . (referring to five appointments between May 2021 and April 2022

where the exam notation so stated). Dr. Gross rationalized that “there are no clinical

findings present in the available records to support the degree of the claimant’s self-

reported impairment.” . Or, in Dr. Goss’ opinion, to support Dr. Geumpel’s

“restrictions and limitations” opinion that Plaintiff could not perform the essential

duties of her occupation. . Further, Dr. Goss determined that there have been “no

findings of significant pain behavior,” and Plaintiff’s medications have been “stable.”

.

86. The Court gives Dr. Gross’s opinion some weight but finds that Dr. Gross

cited as “most pertinent evidence” Plaintiff’s physicians’ “normal exam” notation

without discussing evidence in the record containing objective imaging. Nor does Dr.

Gross’s opinion explain how Plaintiff’s diagnosed condition could not cause Plaintiff’s

chronic pain at the level Plaintiff reports. To say that there were “no clinical findings”

to support Plaintiff’s reported symptoms, when the record as a whole documents a

intensive management of a degenerative disease leads the Court to find Dr. Gross’s

opinion not persuasive.

87. In October 2022, Defendant obtained a file review by in-house Appeals

Physician, physiatrist, Dr. Green, and in December, Defendant obtained an

addendum by Dr. Green. (AR 4630–35, 5156–59).

88. Like the opinions of Drs. Szollas and Gross, Dr. Green also cites from

Plaintiff’s medical record exam notations that have little bearing on the complained

of problem. For example, Dr. Green pointed to findings that Plaintiff was “not a

surgical candidate,” or that her physician “did not endorse pain with walking,” and

that there were “no reports of over-sedation or adverse effects to medication.” (AR

4634). Further, Dr. Green cites to notations about Plaintiff’s general appearance at

exams, such as “speaks in simple sentences, with no distress” as evidence discrediting

that Plaintiff does not suffer from chronic pain. (AR 5158). The opinion also cites to

evidence that Plaintiff had traveled at least four times during the elimination period.

(AR 4634).

89. The Court gives Dr. Green some credit, but his opinion is not persuasive

for the same reasons Drs. Szollas and Green’s opinions are not. Evidence that is not

relevant is cited and credited, and evidence that includes objective imaging and

clinical findings that support Plaintiff’s reported symptoms is not. Further, with

respect to travel, Dr. Green’s opinion does not take into account that Plaintiff

reported to have good days and bad days, and that a few occasions of travel are not

the same as engaging daily in an activity that causes flareups of pain, such as Dr.

Guempel noted. (AR 438) (allowing for positional changes in the

would likely also not be beneficial).

90. Because each reviewing physician references that Plaintiff is not a

surgical candidate as evidence weighing against Plaintiff’s reported symptoms, the

Court finds that the record contains Dr. Guempel’s reply to Plaintiff regarding

possible outcomes of surgical intervention. (AR 1860). It includes an explanation that

“back pain is rarely successfully treated surgically.” . The Court finds that this

explanation, in context, means that surgery would be unlikely to provide relief for

Plaintiff’s symptoms of chronic pain—not that Plaintiff’ does not experience pain.

91. Based on the above-described physician reviews, Defendant’s final

denial letter dated January 23, 2023 (AR 5191–5202), concluded: “It was determined

[Plaintiff] can perform the duties of their occupation. Your client was not disabled

according to the LTD and LWOP policies through the required elimination periods

and benefits were not payable.” (AR 5193).

LEGAL CONCLUSIONS

A. Plaintiff has Proven she is Disabled by Preponderance of the Evidence

The policy’s disability provision states that Plaintiff is deemed disabled if she

is “limited from performing the material and substantial duties of [her] regular

occupation due to [her] sickness or injury” and has “a 20% or more loss in [her]

indexed monthly earnings due to the same sickness or injury.” (AR 125).

Dr. Guempel’s restrictions from sitting for 20 to 30 minutes at a time and

standing for more than 15 minutes (AR 98) is highly credible and supported by the

medical record as a whole. Defendant’s allowed “positional changes” were evinced as

insufficient to provide relief from the requirement to sit and stand, which is required

as a substantial part of Plaintiff’s regular occupation. See (AR 256) (Defendant’s

vocational representative stating that those limitations “would impact the worker’s

ability to perform job tasks with reasonable continuity.”).

Based upon an exhaustive review of the administrative record here, the Court

finds Plaintiff has established by preponderance of the evidence that she was disabled

under Defendant’s definition of disability.

B. Plaintiff’s Subjective Symptom Testimony Must be Credited

Subjective evidence of pain must be properly weighed and cannot be ignored.

See Schramm v. CNA Fin. Corp. Insured Grp. Benefit Program, 718 F.Supp.2d 1151,

1163 (N.D. Cal. 2010) (a “Defendant's attempt to discount Plaintiff's subjective

reports of pain is not supported by Ninth Circuit precedent.”); Saffon v. Wells Fargo

& Co. Long Term Disability Plan, 522 F.3d 863, 872 (9th Cir. 2008) (“individual

reactions to pain are subjective and not easily determined by reference to objective

measurements.”).

Defendant wrongfully discounted Plaintiff’s subjective symptom testimony.

Defendant describes Plaintiff’s symptoms as “self-reported,” and discredits it as

proper evidence that her pain is disabling. See Def. Mot., pp. 12, 16, 21, 25. The

factual findings include that Defendant’s reviewing physicians discredited Plaintiff’s

subjective symptom testimony of chronic pain in contradiction to objective medical

evidence in the record without providing a reasonable explanation for doing so.

Based on her uncontested diagnosis of lumbar radiculopathy and bilateral hip

pain, and her own statement about the degree of her subjective symptoms, the

corroborating statements of her treating physician who examined Plaintiff for over

seven years, and objective clinical imaging, Plaintiff has presented credible evidence

by preponderance of the record of a condition that could reasonably be expected to

cause her chronic pain. Her condition restricts her from performing the substantial

duties of her occupation. Defendant has failed to rebut Plaintiff’s evidence.

C. Evidence that Plaintiff Traveled is Insufficient to Discredit Plaintiff’s

Subjective Symptom Testimony

Evidence in the record is that Plaintiff had to obtain additional medication to

travel (AR 2124) and statements from her family was that Plaintiff experienced

reduced activity when traveling (2894, 2890), and that the family has had to adjust

to her chronic pain management needs. Defendant raised, for the first time in its

administrative appeal decision, that Plaintiff’s testimony about pain is discredited by

the four times she traveled during or around the time of the elimination period. (AR

5194-97).

Courts have found that reference to a claimant’s travel, alone, is not sufficient

to establish a conflict with Plaintiff’s testimony. Santos v. Colvin, 2015 WL 3886939,

at *6 (C.D. Cal. June 24, 2015). See also Chalfant v. Astrue, 2011 WL 61612, at *6

(C.D. Cal. Jan. 6, 2011) (“[P]laintiff's vacation to Hawaii does not inherently negate

her allegations of pain and other symptoms . . . Nor is it apparent from plaintiff's

testimony about her trip that she spent a substantial part of her time performing any

physical task that translates to the work environment”) (citation omitted).

Accordingly, absent specific findings as to how Plaintiff's travels undermine

her credibility, the conclusion is not persuasive.

D. Plaintiff’s Treating Physician’s Determination is Credible

Defendant asserts that Dr. Guempel’s restrictions supporting Plaintiff’s claim

for disability benefits are not credible, because Plaintiff requested the disability

determination and because it conflicts with the medical record as a whole. Def. Br. at

17–21.

As found by the Court, the record includes evidence of an injury from the jet

ski accident, the spinal surgery, MRIs, x-rays, the FCE, Dr. Takano’s opinion, four

witness statements, and intensive pain management through medications prescribed

by Dr. Guempel. Defendant’s reasons for discrediting Dr. Guempel’s restrictions are

not supported by law or fact.

The only medical providers who questioned the veracity or severity of

Plaintiff’s symptoms are Defendant’s reviewers. Defendant’s reviewers never saw

Plaintiff in person. There is no treating physician rule’ in ERISA cases. Black &

Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003)). That is, the Court need not

give special deference to treating physicians over those who conducted reviews.

Hamid v. Metro. Life Ins. Co., 517 F. Supp. 3d 903, 916–17 (N.D. Cal. 2021). But this

does not preclude a district court, engaging in de novo review, from evaluating and

giving appropriate weight to a treating physician's conclusions, where reliable and

probative. Reetz v. Hartford Life and Accident Ins. Co., 294 F. Supp. 3d 1068, 1083

(W.D. Wash. 2018)).

Here, especially given the subjective nature of Plaintiff’s reported pain, the

Court chooses to give weight to the opinions of Dr. Guebel, Plaintiff’s treating

provider, who treated Plaintiff for seven years. Dr. Guebel saw in real time the

symptoms Plaintiff described and did not contest it—instead, she prescribed

medications, ordered imaging, sent out referrals, and responded to Plaintiff’s

complaints of pain.

E. Claim Under “Any Occupation” is Not Properly Before the Court

Plaintiff asks the Court to find that she is unable to engage in her “regular

occupation” and “full time occupations” altogether. Plf. Br. at 6-7. Defendant asserts

that it did not review or decide whether Plaintiff is disabled from performing the

duties of other gainful occupations outside of Plaintiff’s regular occupation. See (AR

125) (defining two-tiers of “disabled”). Plaintiff does not respond to Defendant’s

argument.

“ERISA and its regulations require plans to provide certain pre-suit procedures

for reviewing claims after participants submit proof of loss (internal review).”

Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99, 105 (2013). The LTD plan at

issue includes claims procedures and an administrative appeal process. (AR 149-151).

“[C]ourts of appeal have uniformly required that participants exhaust internal review

before bringing a claim for judicial review.” Heimeshoff at 105.

The Court agrees with Defendant that its benefits decision does not address

the “any gainful occupation” standard, nor does the Complaint. The administrative

record is not developed on that question. Plaintiff’s request for reinstatement of

benefits beyond the date of judgment is not properly before the Court. Defendant’s

motion for judgment is granted with respect to this issue.

CONCLUSION

Plaintiff bears the burden of showing by a preponderance that she was disabled

within the meaning of the plan and was therefore entitled to LTD benefits. The Court

finds that Plaintiff has met this burden. Thus, the Court GRANTS Plaintiff’s Motion

for Judgment, ECF No. 28. The Court GRANTS Defendant’s Motion in Part and

DENIES Defendant’s Motion in Part, ECF No. 26, consistent with this opinion. The

Court holds that Plaintiff was disabled within the meaning of the policy with respect

to her “regular occupation” and is entitled to receive LTD benefits. The parties shall

meet and confer regarding the amount of benefits owed and any interest, and jointly

submit a proposed judgment within sixty (60) days of the date of this Order. Plaintiff's

request for attorney's fees under 29 U.S.C. § 1132(g) must be filed no later than 14

days after the entry of judgment as required by Federal Rule of Civil Procedure

54(b)(2).

________/s_/_A_n__n_ A__ik__e_n_______

It is so ORDERED

Ann Aiken

Dated this 19th day of September 2025.

United States District Judge