The opinion
1
2
3
4
5
6 UNITED STATES DISTRICT COURT
7 NORTHERN DISTRICT OF CALIFORNIA
8
9 EDWARD R. SERRATA, Case No. 24-cv-02421-HSG
10 Plaintiff, ORDER GRANTING PLAINTIFF’S
MOTION FOR JUDGMENT AND
11 v. DENYING DEFENDANT’S MOTION
FOR JUDGMENT
12 UNUM LIFE INSURANCE COMPANY
OF AMERICA, et al., Re: Dkt. Nos. 43, 45
13
Defendants.
14
15 Pending before the Court are the parties’ cross-motions for judgment under Federal Rule of
16 Civil Procedure 52. Dkt. Nos. 43, 45. Both motions are opposed. See Dkt. Nos. 48, 49. Plaintiff
17 Edward R. Serrata brings a single claim to recover long-term disability benefits under the
18 Employment Retirement Income Security Act (“ERISA”), from April 13, 2023, which is the date
19 on which they were terminated by Defendant Unum Life Insurance Company of America
20 (“UNUM”), to the date of judgment. The Court held a hearing on the cross-motions, Dkt. No. 50,
21 and for the reasons discussed below GRANTS Plaintiff’s motion for judgment and DENIES
22 Defendant’s motion.
23 I. LEGAL STANDARD
24 Under ERISA Section 502(a)(1)(B), a civil action may be brought by a participant,
25 beneficiary, or fiduciary to recover benefits due to him under the terms of his plan, to enforce his
26 rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the
27 plan. See 29 U.S.C. § 1132(a)(1)(B).
1 The parties agree that the Court may resolve Plaintiff’s ERISA claim on cross-motions for
2 judgment under Federal Rule of Civil Procedure 52. “Under Rule 52, the Court conducts what is
3 essentially a bench trial on the record, evaluating the persuasiveness of conflicting testimony and
4 deciding which is more likely true.” See McCulloch v. Hartford Life & Accident Ins. Co., No. 19-
5 CV-07716-SI, 2020 WL 7711257, at *7 (N.D. Cal. Dec. 29, 2020) (citing Kearney v. Standard
6 Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999) (en banc)); see also Fed. R. Civ. P. 52(a)(1) (“In
7 an action tried on the facts without a jury or with an advisory jury, the court must find the facts
8 specially and state its conclusions of law separately.”).
9 A denial of ERISA benefits “is to be reviewed under a de novo standard unless the benefit
10 plan gives the administrator or fiduciary discretionary authority to determine eligibility for
11 benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
12 101, 115 (1989); see also Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006)
13 (en banc) (“De novo is the default standard of review.”). Here, the parties stipulated that the de
14 novo standard of review applies. See Dkt. No. 34.
15 Under de novo review, “the court does not give deference to the claim administrator’s
16 decision, but rather determines in the first instance if the claimant has adequately established that
17 he or she is disabled under the terms of the plan.” Muniz v. Amec Const. Mgmt., Inc., 623 F.3d
18 1290, 1295-96 (9th Cir. 2010) (holding that, in an ERISA action for the denial of disability
19 benefits, the burden of proof is on the claimant when the standard of review is de novo). “When a
20 district court reviews de novo a plan administrator’s determination of a claimant’s right to recover
21 long term disability benefits, the claimant has the burden of proving by a preponderance of the
22 evidence that he was disabled under the terms of the plan.” Armani v. Nw. Mut. Life Ins. Co., 840
23 F.3d 1159, 1162-63 (9th Cir. 2016). The burden of proof remains on the claimant even “when
24 disability benefits are terminated after an initial grant.” See Muniz, 623 F.3d at 1296.
25 //
26
27
1 II. FACTUAL FINDINGS1
2 A. Plaintiff’s Background and Overview of Claim History
3 Plaintiff started working for Sherwin Williams Company (“SW”) as a salesman in 1991.
4 AR2855. 2 In 2005, Plaintiff began to experience problems with his vision and energy, and in
5 2006, he was diagnosed with multiple sclerosis (“MS”) at the age of 45 following an episode of
6 optic neuritis. Id. Despite his diagnosis, Plaintiff continued to work for six more years, during
7 which his MS symptoms progressively worsened. Id. Eventually, in 2011, his MS symptoms,
8 which included fatigue, leg pain and discomfort, leg weakness, leg paresthesias, vision problems,
9 and loss of balance, made it difficult for him to perform the duties of his job. AR2855; AR129-
10 30; AR109-10; AR2653. At that point, his doctors recommended that he stop working. AR2856.
11 Plaintiff’s last day of work was July 7, 2011. AR109. Plaintiff’s last position at SW was National
12 Account Sales Manager, which required frequent travel by air and car; coordinating sales strategy
13 for obtaining new customers on a national scale; giving presentations to clients; and attending
14 trade shows. AR2855.
15 Plaintiff applied for short-term disability benefits, which were approved and paid by
16 Defendant until November 10, 2011, when his disability benefits claim was converted into a claim
17 for long-term disability (“LTD”) benefits. AR65.
18 Based on the MS-related symptoms he was experiencing, Plaintiff’s claim for LTD
19 benefits was approved as of January 4, 2012 “to the maximum duration,” meaning that the benefits
20 were approved through May 24, 2026 and would be paid so long as Plaintiff continued to meet the
21 Plan’s definition of disability. See AR298, AR317. For more than eleven years, Defendant
22
23
24
1 To the extent that any findings of fact are included in the Conclusions of Law section, they shall
be deemed findings of fact, and to the extent that any conclusions of law are included in the
25
Findings of Fact section, they shall be deemed conclusions of law.
26 2 AR refers to the administrative record, which was filed on the docket in nine separate docket
entries, as follows: (1) Dkt. No 46-1 (AR0001-0500); (2) Dkt. No. 46-2 (AR0501-0750; (3) Dkt.
27 No. 46-3 (AR0751-AR1000); (4) Dkt. No. 46-4 (AR1001-AR1500); (5) Dkt. No. 46-5 (AR1501-
1 obtained regular updates from Plaintiff regarding his symptoms and it continued to pay him LTD
2 benefits.
3 On April 13, 2023, Defendant terminated Plaintiff’s LTD benefits as of April 14, 2023 on
4 the basis that Plaintiff was not disabled from performing a sedentary occupation. The reasons that
5 Defendant proffered for the termination included that Plaintiff’s treating neurologist, Dr. Yana
6 Kriseman, indicated in a form on March 10, 2023 that he could perform sedentary occupational
7 demands; that his MS was stable based on MRI scans and the medication he was taking for MS;
8 and that his activity level was in excess of that required for a sedentary occupation because he
9 coached high school baseball and participated in golf. AR2574.
10 Plaintiff appealed the termination and submitted additional information in support of his
11 claim, but Defendant ultimately upheld the termination on March 15, 2024.
12 Plaintiff then filed this action on April 23, 2024 to recover LTD benefits from the date of
13 termination to the date of judgment. See Dkt. No. 1.
14 B. Relevant Policy Provisions
15 By virtue of being an employee of SW, Plaintiff had long-term disability coverage under a
16 policy that Defendant issued to SW (hereinafter, “the Policy”). AR 519-562.
17 The Policy provides that a claimant is entitled to LTD benefits if he is limited from
18 performing the substantial duties of his “regular occupation” due to a sickness or injury and had a
19 20% or greater loss in his indexed monthly earnings due to that sickness or injury. AR533. After
20 24 months of payments, the standard for proving disability changes to the “any gainful
21 occupation” standard, which provides that a claimant is “disabled when Unum determines that due
22 to the same sickness or injury” the claimant is “unable to perform the duties of any gainful
23 occupation for which [he is] reasonably fitted by education, training or experience.” AR533.
24 “Sickness” is defined in the Plan as “an illness or disease.” AR551. “Gainful occupation”
25 is defined as an occupation that is or can be expected to provide the claimant with an income
26 within 12 months of his return to work that exceeds 80% of his indexed monthly earnings, if he is
27 working; or 60% of his indexed monthly earnings, if he is not working. AR548.
1 C. Proof of Disability Prior to Approval of LTD Benefits
2 As part of his application for LTD benefits, Plaintiff submitted medical records and
3 reported his symptoms to Defendant’s claims department staff.
4 On July 12, 2011, Plaintiff underwent a neurological exam by Dr. Edwin Garcia, his
5 treating neurologist. AR78. Dr. Garcia noted that Plaintiff had been having difficulty performing
6 his job because of extreme tiredness and fatigue, cramps and stiffness in his legs, and imbalance.
7 AR79. On July 25, 2011, Dr. Garcia wrote an attending physician statement in support of
8 Plaintiff’s application for disability benefits. AR129-30. Dr. Garcia prescribed Plaintiff
9 Copaxone to prevent MS exacerbation and Nuvigil to treat fatigue. AR130.
10 In November 2011, Plaintiff reported to Defendant that he was experiencing fatigue and
11 muscle weakness, problems with balance and short-term memory, vision issues, and numbness
12 and tingling in his extremities. AR109-10. Plaintiff reported being able to do “routine things
13 around the house,” such as mowing the lawn, “as tolerated,” but that his ability to perform those
14 tasks varied by the day. AR109.
15 On December 21, 2011, Dr. Jeffrey Javerbaum, another of Plaintiff’s treating neurologists,
16 noted that Plaintiff could not perform light work and that he considered Plaintiff to be at
17 “maximum medical improvement[.]” AR245-46.
18 On January 18, 2012, Dr. T. Edward Collins, a board-certified neurologist retained by
19 Defendant, reviewed Plaintiff’s medical records, including available MRIs, to opine on whether
20 Plaintiff had the ability to work. AR292. Dr. Collins concluded that Plaintiff was at “maximal
21 medical improvement” and noted that “it is unlikely that claimant will show improvement in
22 neurologic status and it is unlikely that he will regain sustainable, predictable capacity to perform
23 his occupation or even a sedentary, less physically demanding occupation.” AR292. Dr. Collins
24 further noted: “No further medical action necessary.” Id.
25 On January 18, 2012, after reviewing Dr. Collins’ opinions, a member of Defendant’s LTD
26 benefits staff wrote a note in Plaintiff’s file that Plaintiff “does not have sustained predictable
27 work capacity for any occupation.” AR298 (emphasis added).
1 D. Approval of LTD Benefits as of January 4, 2012
2 On January 19, 2012, Defendant approved Plaintiff’s claim for LTD benefits as of January
3 4, 2012 and it did so “to the maximum duration.” See AR310; AR317 (stating that Plaintiff’s LTD
4 benefits claim was approved through May 24, 2026). The letter regarding the approval states that
5 LTD benefits were approved “because the medical documentation supports you are unable to
6 perform predictable/sustainable work capacity due to the symptoms related to your diagnosis of
7 Multiple Sclerosis. Your benefits will continue as long as you meet the definition of disability in
8 the policy provided by your employer and are otherwise eligible under the policy terms.” See
9 AR325.
10 E. Social Security Disability Benefits
11 On March 21, 2014, Plaintiff was approved for Social Security Disability benefits as of
12 January 2012. AR488. The Policy requires that any such benefits be subtracted from any LTD
13 benefits paid under the Policy. AR574.
14 F. Medical History and Other Relevant Information Obtained Between the
Approval and Subsequent Termination of LTD Benefits
15
16 In the more than eleven years following the approval of Plaintiff’s LTD benefits,
17 Defendant’s LTD benefits department staff regularly obtained updated medical records and status
18 updates from Plaintiff regarding his symptoms. They also reviewed Plaintiff’s social media
19 activity and conducted related internet research. After reviewing this information, the staff
20 routinely approved the continued of payment of LTD benefits to Plaintiff. See, e.g., AR1503,
21 AR1505.
22 Notes written by the LTD benefits department staff show that Plaintiff consistently
23 reported over the years suffering from symptoms of MS, including leg pain and discomfort,
24 muscle weakness, fatigue, problems with balance, and vision issues. See, e.g., AR695-96; AR729-
25 30; AR948; AR1501-02; AR1473. Plaintiff also routinely reported performing certain activities
26 when he was able, such as grocery shopping, house chores, exercise, walking the dog, helping his
27 wife when she was sick, and coaching high school baseball during the season. See AR730,
1 Defendant’s monitoring of Plaintiff’s social media activity and related internet research
2 resulted in findings that suggest that Plaintiff coached high school baseball and played golf. In
3 September 2018, Defendant obtained screenshots of what appears to be Plaintiff’s Facebook page.
4 AR890-915. The screenshots show statements and photographs from 2018 and earlier years
5 indicating that Plaintiff may have coached members of Hillsdale High School’s baseball team and
6 played golf. See, e.g., AR895, AR901, AR903. In March and October 2022, Defendant obtained
7 screenshots of webpages from 2022 and earlier years, as well as online news articles from 2017,
8 indicating that Plaintiff had coached Hillsdale High School’s baseball team. AR 1575-78;
9 AR1581-88; AR1596-97. It also obtained screenshots of a 2021 Facebook post indicating that
10 Plaintiff played golf. AR1592.
11 The most relevant medical records that Defendant obtained during the years it paid LTD
12 benefits to Plaintiff are discussed below.
13 In February 2020, Plaintiff reported to Dr. Carter Chang, his family medicine treating
14 physician, that he had been trying to exercise but that he had recently experienced significant pain
15 in his upper legs and that he felt extremely fatigued. AR1434. Dr. Chang recommended that
16 Plaintiff contact neurologist Dr. Yana Kriseman. Id. In October 2020, Dr. Chang filled out a form
17 in which he indicated that Plaintiff did not have any physical or behavioral restrictions or
18 limitations. See AR1076. In his notes relating to this form, Dr. Chang stated that he had found no
19 limitations for Plaintiff but that there was “documentation” that Plaintiff “has an ongoing, chronic
20 condition (not curable).” AR1121.
21 On March 17, 2021, Plaintiff’s treating neurologist, Dr. Yana Kriseman, noted that
22 Plaintiff was experiencing “ongoing chronic MS symptoms,” including fatigue, leg pain, leg
23 weakness, paresthesias, and spasms. AR1658. She also noted that Plaintiff had difficulty sleeping
24 through the night because of his symptoms. AR1659. Dr. Kriseman further noted that Plaintiff
25 was “currently stable on Copaxone without side effects” and that she would “not make medication
26 changes at this time due to possible increased risk of side effects from other medications.” Id.
27 On July 18, 2022, Dr. Kriseman noted that Plaintiff’s symptoms, which included fatigue,
1 and go as he is fatigued[.]” AR1679. She also noted that he denied any new episodes of
2 numbness and weakness but continued to have instability and pain in the lower back and
3 paresthesias in the legs. AR1679. She also noted that he was “doing well on brand copaxone”
4 and that he had not tolerated other medications in the past. AR1682.
5 In November and December 2022, Plaintiff was diagnosed with thyroid cancer and
6 underwent surgery. AR1715.
7 On February 17, 2023, Defendant sent Dr. Kriseman a form asking her whether Plaintiff
8 was capable of performing sedentary occupational demands which, according to Defendant,
9 require “[m]ostly sitting, may involve standing or walking for brief periods of time with the ability
10 to make positional changes” and “[o]ccasional lifting, carrying, pushing, and pulling up to 10
11 pounds” (hereinafter, “sedentary occupational demands”). AR1908. On March 10, 2023, Dr.
12 Kriseman checked the “Yes” box and signed the form. AR1908.
13 On March 28, 2023, Plaintiff had a televisit with Dr. Kriseman. Dr. Kriseman noted that
14 Plaintiff was experiencing problems with balance and walking; was having ongoing paresthesias
15 and sometimes tremors in the legs, which are worse in stationary positions such as sitting; can
16 only sit for ten to fifteen minutes before having to move around for about ten minutes to help
17 abate the discomfort; can sometimes feel tingling in the arms when sedentary; was having
18 difficulty sleeping; was experiencing fatigue; was having difficulty with concentration and
19 attention; and was experiencing back pain. AR2339-40.
20 On April 11, 2023, a registered nurse in Defendant’s LTD benefits department, Jasie
21 Smith, reviewed Plaintiff’s file and concluded that his MS symptoms did not preclude him from
22 performing sedentary occupational demands on a full-time basis based on the form filled out by
23 Dr. Kriseman on March 10, 2023, and the fact that Plaintiff had engaged in increased activity
24 starting in 2017 through 2022 in the form of baseball coaching and participating in golf. AR2559-
25 63.
26 On April 12, 2023, a vocational analysis was conducted by Norma Parras-Potenzo at
27 Defendant’s request. AR2566. The analysis relied on Ms. Smith’s findings that Plaintiff was
1 Potenzo concluded that jobs existed that would satisfy Plaintiff’s wage requirements under the
2 Policy (i.e., ones that paid at least $36.93 per hour) and that he could perform based on his
3 capacity to perform sedentary occupational demands, namely inside sales representative, national
4 account manager, and hotel sales representative. AR2566.
5 G. Termination of LTD Benefits as of April 14, 2023
6 On April 13, 2023, Defendant terminated Plaintiff’s LTD benefits as of April 14, 2023.
7 AR2573-79. The reason for the termination was that Plaintiff no longer met the Policy’s
8 definition of disability because he was capable of performing a sedentary occupation that paid at
9 least $36.93 per hour. AR2574. The termination letter noted that: (1) Plaintiff’s MRIs showed
10 that his MS was stable and that his treatment for MS had not changed; (2) Dr. Kriseman indicated
11 on March 10, 2023 that Plaintiff could perform sedentary occupational demands on a full-time
12 basis; (3) his activity level was “in excess of what is required for a sedentary occupation” given
13 that he had “been coaching high school baseball since 2017” and also “participated in golf”; and
14 (4) his physical exam findings are not consistent with his reported symptoms.
15 H. Medical Information after Termination of LTD Benefits but Prior to
Plaintiff’s Appeal
16
17 Following the termination of his LTD benefits, Plaintiff submitted new documentation
18 from Dr. Kriseman. On April 23, 2023, Dr. Kriseman completed a new form indicating that she
19 did not agree that Plaintiff could perform sedentary occupational demands. AR2620. Dr.
20 Kriseman incorporated by reference her notes from March 28, 2023 which, as discussed above,
21 provide that Plaintiff was experiencing fatigue, leg paresthesias and tremors, and problems with
22 balance, concentration, and attention, and that he could only sit for ten to fifteen minutes at a time
23 before needing to stand up and move around for about ten minutes. See AR2339-40.
24 On April 25, 2023, Dr. James Haller,3 who is board certified in family medicine and was
25 retained by Defendant, wrote a letter to Dr. Kriseman asking whether she agreed that, in light of
26
27
3
1 Plaintiff’s stable MS and ability to coach baseball, play golf, and engage in other activities, he had
2 capacity to work a sedentary job full-time. AR2630.
3 On April 26, 2023, Dr. Kriseman responded that she did not agree and she certified that
4 Plaintiff could not perform sedentary occupational demands. AR2637. She noted that Plaintiff
5 had “difficulty with mostly sitting as he reports worsened paresthesias in the legs after 10-15
6 minutes of sitting before having to get up and move around[.]” AR 2637.
7 On May 8, 2023, Dr. Haller reviewed Plaintiff’s medical records and concluded that the
8 evidence in Plaintiff’s file did not support Dr. Kriseman’s conclusion that Plaintiff was precluded
9 from performing sedentary occupational demands. AR 2652-55.
10 On May 10, 2023, Dr. Michael Snyder, a board-certified neurologist retained by
11 Defendant, reviewed Plaintiff’s medical records. AR2659-61. He concluded that Plaintiff had the
12 ability to perform sedentary occupational demands on a full-time basis based on (1) indications
13 that he was capable of serving as baseball coach for the local high school; and (2) there was no
14 evidence of MS progression or changes in his treatment for MS symptoms. AR2660-61.
15 On May 15, 2023, Defendant advised Plaintiff by letter that it had reviewed the new
16 information provided by Dr. Kriseman on April 23, 2023 but that his LTD benefits claim would
17 remain closed in light of the opinions of Dr. Haller and Dr. Snyder. AR2668-69.
18 I. Appeal of Termination of LTD Benefits
19 On June 27, 2023, Plaintiff appealed the termination of his LTD benefits and submitted a
20 letter in support of the appeal. AR2692. In his letter, Plaintiff represented that his condition was
21 “just as bad as it was in 2011 and 2014” and that he was not capable of returning to the workforce
22 in any capacity. AR2692. Plaintiff represented that he suffered from severe leg pain that was
23 exacerbated by prolonged stretches of staying in one position, such as sitting. AR2692. He also
24 represented that he recently had had surgery for thyroid cancer and that his MS symptoms had
25 worsened since then. AR2692. Plaintiff represented that his coaching of high school baseball was
26 on a volunteer basis only, never involved spending more than two hours at a time with the team,
27 never involved “anything remotely physical,” and ended in 2022 because his MS symptoms
1 never carried golf clubs, that he “cannot really even swing a golf club,” and that he participated in
2 a group event but “rel[ies] mostly on his partners while [he] ride[s] in the cart and oversees the
3 event.” AR2693.
4 On July 20, 2023, Dr. Michael Chilungu, a board certified neurologist retained by
5 Defendant, reviewed Plaintiff’s medical records and concluded that he was capable of performing
6 sedentary occupational demands because (1) his MS was not worsening; and (2) “the level of
7 activity documented in the file including light housework, attending games, driving, gardening,
8 walking his dog, coaching baseball in recent years, caring for his wife, and playing golf suggests
9 the claimant has retained functional capacity consistent with at least sedentary exertion.”
10 AR2740-44.
11 On July 31, 2023, Plaintiff informed Defendant that he had retained a new attorney and
12 that he would be withdrawing his appeal so that his new counsel could submit additional
13 information in support of his claim. AR2780.
14 On January 4, 2024, Plaintiff submitted a new appeal with the assistance of his new
15 counsel and attached supplemental materials in support of his claim, including a report by a
16 neurologist who performed an in-person neurological evaluation of Plaintiff, Dr. Peter Cassini; a
17 vocational analysis by Charles Galarraga; and letters by various third parties. AR2842.
18 Dr. Peter Cassini, who is board certified in neurology, has diagnosed and treated patients
19 with MS for more than 25 years. AR2860. Dr. Cassini reviewed 2724 pages of Plaintiff’s
20 medical records and completed an in-person neurological exam of Plaintiff in November 2023. In
21 a report dated November 28, 2023, Dr. Cassini concluded that Plaintiff was not physically capable
22 of performing sedentary occupational demands on a full-time basis because of physical symptoms
23 of MS, and that his cognitive impairment would contribute to his inability to perform sedentary
24 occupational demands. AR2861. These conclusions were based on Dr. Cassini’s findings that
25 Plaintiff had symptoms consistent with bilateral lower extremity spasticity resulting in impaired
26 gait and increased focus and effort to maintain locomotion and balance; deep tendon reflexes
27 being increased in all four extremities; and sustained clonus in the legs with sustained posture of
1 extremities affected control, that he had impairment of fine motor movements in the hands, and
2 that he had rapid alternating movements in all four extremities that worsened with increases in
3 rate. AR2860. Dr. Cassini noted: “Without question, at the time of Mr. Serrata’s most recent
4 disability evaluation his Multiple Sclerosis derived symptoms and impairments were greater than
5 at any other time in his life. . . . It is expected that Mr. Serrata’s condition will continue to progress
6 over time.” AR2861.
7 Charles Galarraga, who was retained by Plaintiff, conducted a vocational analysis. In a
8 report dated January 4, 2024, Mr. Galarraga concluded, after considering Dr. Cassini’s and Dr.
9 Kriseman’s opinions regarding Plaintiff’s lack of capacity to perform sedentary occupational
10 demands, that no jobs existed that matched Plaintiff’s training, education, and experience after
11 taking into account his restrictions and limitations. See AR2863-64.
12 Below are some examples of the third-party letters that Plaintiff submitted in support of his
13 appeal.
14 Gina Serrata, Plaintiff’s wife, wrote that since Plaintiff was diagnosed with MS, his
15 symptoms have slowly gotten worse, particularly after his thyroid cancer diagnosis. AR2878-79.
16 Mrs. Serrata represents that Plaintiff struggles with his balance and has fallen numerous times,
17 experiences constant fatigue, experiences constant pain in his legs and back, has experienced
18 memory loss and cognitive difficulties, and cannot sit or stand for too long. See id. Letters
19 written by Plaintiff’s sister, Lucinda Roman, and Plaintiff’s daughter, Jennifer Austin, contain
20 similar representations regarding Plaintiff’s symptoms and impairments. See AR2899; AR2882-
21 83.
22 Larry Marcone, who is a parent volunteer at Hillsdale High School, wrote that Plaintiff
23 took a “volunteer position” with the school’s baseball team as a mentor, which involved reviewing
24 film and stats and discussing batting approaches with players. AR2889. He wrote that Plaintiff’s
25 goal was to spend seven to eight hours a week for three months of the year at the school
26 performing this role. AR2890. He further represented that Plaintiff disclosed to the team his MS
27 diagnosis and inability to throw batting practice, coach first or third base, or hit any infield
1 feel well and “spent all his time observing from the dugout or outside the field” when he was
2 there. Id.
3 James Madison, the Hillsdale High School Athletic Director, wrote that Plaintiff
4 “volunteered his time” to the school’s baseball team and that his role was limited to observing and
5 giving verbal instructions to the athletes. AR2887. He also wrote that Plaintiff’s “availability and
6 role as a coach was always limited due to his medical condition (MS),” and that he was not able to
7 do “what some of the other coaches regularly did (hit ground balls, throw batting practice, coach
8 the bases, etc.” Id. He further noted that Plaintiff occasionally had to skip practices or leave early
9 for health reasons. Id.
10 In response to Plaintiff’s appeal, Defendant retained Shannon O’Kelley to conduct a
11 vocational analysis. In a report dated January 9, 2024, Ms. O’Kelley concluded that the vocational
12 analysis performed by Charles Galarraga on January 4, 2024 “doesn’t alter the conclusions of the
13 vocational review of 4/12/23” that was conducted by Norma Parras-Potenzo at Defendant’s
14 request. AR2952. As discussed above, Ms. Parras-Potenzo concluded that sedentary jobs existed
15 that suited the wage requirements under the Policy and that Plaintiff could perform, namely inside
16 sales representative, national account manager, and hotel sales representative. AR2566.
17 Defendant also retained Dr. Kaiwen Lin, a board-certified neurologist, to conduct a review
18 of Plaintiff’s medical records and other materials submitted as of January 25, 2024, which is the
19 date of his report. AR2962. Dr. Lin concluded that Plaintiff could perform sedentary
20 occupational demands because (1) MRI scans had repeatedly been stable; (2) Plaintiff continued to
21 be treated only with Copaxone, which is the lowest-efficacy MS medication; (3) Plaintiff could
22 perform activities such as driving a golf cart, grocery shopping, and “mentor[ing] high school
23 baseball”; and (4) Dr. Kriseman opined that Plaintiff could perform sedentary occupational
24 demands on March 10, 2023 and “there is no communication or evidence from Dr. Kriseman to
25 indicate that her decision on 3/10/23 was a mistake[.]” AR2959-63.
26 On February 5, 2024, Charles Galarraga issued an addendum to his report. AR3014-15.
27 The addendum provides that Mr. Galarraga surveyed employers hiring within 50 miles of
1 by Plaintiff. AR3014-15. Mr. Galarraga concluded that none of those employers would hire
2 someone with Plaintiff’s restrictions and limitations for the positions that Defendant identified.
3 See id.
4 On February 20, 2024, Shannon O’Kelley issued an addendum to her report in which she
5 reiterated the conclusions in her original report. AR3096.
6 On February 21, 2024, Dr. Lin issued an addendum to his report in which he took into
7 account the addendum to Mr. Galarraga’s vocational report and concluded that the medical
8 information on file does not support restrictions and limitations that would preclude Plaintiff from
9 performing sedentary occupational demands. AR3091-92.
10 On March 1, 2024, Dr. Kriseman wrote a letter in support of Plaintiff’s appeal, which
11 states:
12 I am providing this additional information in regard to the form I
filled out on 3/10/2023. While Edward R. Serrata is able to sit, he
13
has significant worsened symptoms after a short period of time
14 requiring frequent position changes. This does pose a disability for
activity that requires sustained and prolonged sitting. I did not
15 conclude that Edward Serratas [sic] condition had improved to the
point that he could return to work or that he was no longer disabled
16 and it was not my intention to indicate that in the form.
17
AR3119.
18 J. Decision Upholding Termination of LTD Benefits as of April 14, 2023
19 On March 15, 2024, Defendant upheld its termination of Plaintiff’s LTD benefits on the
20 grounds that (1) the medical records did not indicate neurological deficits, progression, or
21 worsening of Plaintiff’s MS such that he would be precluded from sedentary activities; (2) mental
22 status exams were normal and no further evaluations were performed to evaluate any purported
23 diminished cognitive function; (3) Dr. Kriseman noted in a form dated March 10, 2023 that
24 Plaintiff could perform sedentary occupational demands, and her opinions on that issue changed
25 only after Plaintiff self-reported issues with balance, fatigue, walking, leg strength, and
26 concentration and attention; and (4) Plaintiff’s activities met or exceeded what is needed to
27 perform sedentary work. AR3160-69.
1 Defendant terminated them to the date of judgment. Dkt. No. 1.
2 III. CONCLUSIONS OF LAW
3 Before turning to the merits of the parties’ cross-motions, the Court addresses a threshold
4 issue. Plaintiff requests that the Court consider an article titled “Multiple Sclerosis,” which was
5 published on the website of the National Institute of Neurological Disorders and Stroke, in
6 considering the motions.4 See Dkt. No. 44. The article contains background information on the
7 causes and symptoms of MS and other information relating to MS. See id. Defendant has filed no
8 opposition or objection to Plaintiff’s request.
9 A request to admit evidence outside of the administrative record is governed by the
10 “restrictive rule of Mongeluzo.” See Opeta v. Nw. Airlines Pension Plan for Cont. Emps., 484
11 F.3d 1211, 1217 (9th Cir. 2007) (citing Mongeluzo v. Baxter Travenol Long Term Disability Ben.
12 Plan, 46 F.3d 938, 944 (9th Cir. 1995)). Under that rule, “[a] district court, when exercising de
13 novo review of an ERISA benefits denial decision, may [in its discretion] admit additional
14 evidence when circumstances clearly establish that additional evidence is necessary to conduct an
15 adequate de novo review of the benefit decision.” Muniz, 623 F.3d at 1297 (citation and internal
16 quotation marks omitted); see also Opeta, 484 F.3d at 1217 (same). The Ninth Circuit has
17 “emphasized” that “‘a district court should not take additional evidence merely because someone
18 at a later time comes up with new evidence’ and that ‘[i]n most cases’ only the evidence that was
19 before the plan administrator at the time of determination should be considered.” See Opeta, 484
20 F.3d at 1217 (quoting Mongeluzo, 46 F.3d at 944). Non-exhaustive examples of the “exceptional
21 circumstances” where the admission of extrinsic evidence could be considered necessary include
22 where claims require the consideration of complex medical questions or issues regarding the
23 credibility of experts, and where there is additional evidence that the claimant could not have
24 presented in the administrative process. See id.
25
26
27
4
1 Here, the article in question is not necessary for the Court to conduct an adequate de novo
2 review of the termination of Plaintiff’s LTD benefits. Accordingly, the Court declines to exercise
3 its discretion to admit the article.
4 The Court now turns to the substance of the parties’ cross-motions. The parties appear to
5 agree that, to prevail on his claim to recover LTD benefits under ERISA, Plaintiff must establish
6 by a preponderance of the evidence that (1) he has a sickness or injury that (2) prevents him from
7 performing the duties of “any gainful occupation” for which he is reasonably fitted by education,
8 training, or experience. See AR533. Further, the parties appear to agree that a gainful occupation
9 based on Plaintiff’s education, training, or experience is one that requires, at a minimum,
10 sedentary occupational demands5 and that would pay at least $36.93 per hour. See AR548;
11 AR2556.
12 Defendant argues that Plaintiff has failed to establish that he was incapable of performing
13 any gainful occupation that requires sedentary occupational demands as of the date when his LTD
14 benefits were terminated.
15 The Court finds that the preponderance of the evidence shows that, even when Defendant
16 terminated his LTD benefits on April 13, 2023, Plaintiff could not perform any gainful occupation
17 that requires sedentary occupational demands because of physical symptoms of MS in his legs.
18 Accordingly, the Court finds that Defendant erred in terminating Plaintiff’s LTD benefits as of
19 April 14, 2023 and in upholding the termination on appeal. See Abatie, 458 F.3d at 963 (holding
20 that, when reviewing a decision under the de novo standard of review, the “court simply proceeds
21 to evaluate whether the plan administrator correctly or incorrectly denied benefits”).
22 Below, the Court addresses (1) why Plaintiff has met his burden of showing by a
23 preponderance of the evidence that he was disabled from any gainful occupation at the time his
24 LTD benefits were terminated; (2) why the reasons that Defendant gave in its denial letters for
25
26
5 According to Defendant, the sedentary occupational demands require: (1) mostly sitting, may
27
involve standing or walking for brief periods of time, with the ability to make positional changes;
1 terminating Plaintiff’s LTD benefits do not alter that conclusion; and (3) why the other arguments
2 that Defendant advances in its briefs also do not alter that conclusion.
3 A. Plaintiff Has Met His Burden of Showing by a Preponderance of the Evidence
That He Was Disabled When His LTD Benefits Were Terminated
4
5 The following facts are undisputed. Plaintiff was diagnosed with MS in 2006 and has
6 continued to carry that diagnosis at all relevant times. Before Plaintiff’s claim for LTD benefits
7 was approved, Plaintiff reported symptoms that included fatigue, leg pain and discomfort, leg
8 cramps and stiffness, and imbalance, and two different physicians (Plaintiff’s treating neurologist,
9 Dr. Javerbaum, and Defendant’s retained neurologist, Dr. Collins) opined that Plaintiff had
10 reached “maximal medical improvement” after reviewing Plaintiff’s MRI scans and reported
11 symptoms. Immediately prior to the approval of LTD benefits, Defendant’s claim review staff
12 wrote a note in Plaintiff’s file stating, based on Dr. Collins’ opinions, that Plaintiff “does not have
13 sustained predictable work capacity for any occupation.” AR298 (emphasis added). Defendant
14 approved LTD benefits from January 2012 through the maximum duration of benefits permitted
15 under the Policy (i.e., through May 2026) because the medical evidence indicated that Plaintiff
16 was “unable to perform predictable/sustainable work capacity due to the symptoms related to [his]
17 diagnosis of Multiple Sclerosis.” AR235. Defendant continued to pay LTD benefits to Plaintiff
18 for eleven years before terminating them as of April 14, 2023. At least nine of those years of LTD
19 benefits payments were under the “any gainful occupation” standard of disability, since that
20 standard applies after the first 24 months of LTD benefits.
21 Persuasive medical evidence in the record indicates that, around the time that his LTD
22 benefits were terminated, Plaintiff continued to suffer from physical MS-related symptoms that
23 precluded him from performing a full-time sedentary job. For example, Plaintiff’s treating
24 neurologist of several years, Dr. Kriseman, noted on March 28, 2023 that Plaintiff was
25 experiencing discomfort due to paresthesias and tremors in the legs and sometimes in the arms,
26 particularly when sitting or sedentary, and that he needed to stand up and move around for about
27 ten minutes after sitting for ten to fifteen minutes to alleviate discomfort from paresthesias in his
1 and fatigue. See id. Dr. Kriseman concluded on March 28, 2023, and again on April 26, 2023,
2 that Plaintiff’s inability to sit for more than ten to fifteen minutes before needing to get up and
3 move around for about ten minutes because of MS symptoms in his legs precluded him from
4 performing sedentary occupational demands on a full-time basis, as those demands require mostly
5 sitting. See AR2620; AR2339; AR2637. The Court credits these opinions by Dr. Kriseman and
6 gives them substantial weight because she treated Plaintiff’s MS symptoms, including leg pain and
7 discomfort, for several years prior to the termination of Plaintiff’s LTD benefits. Her opinions
8 about Plaintiff’s MS symptoms and associated restrictions and limitations are the most salient and
9 reliable as compared to other evidence in the record on that issue. Additionally, Dr. Kriseman’s
10 opinions are consistent with the opinions of Dr. Cassini, a neurologist with more than 25 years of
11 experience in treating patients with MS. AR2860-61. After conducting an in-person neurological
12 exam on Plaintiff and reviewing more than 2700 pages of his medical records, Dr. Cassini
13 concluded that Plaintiff was not capable of performing sedentary occupational demands on a full-
14 time basis because of physical symptoms associated with MS in his extremities. See id. The
15 Court finds Dr. Cassini’s opinions to be reliable because he personally examined Plaintiff and
16 because they are based on his extensive experience in treating MS patients.
17 Because Plaintiff was not capable of performing sedentary occupational demands at the
18 time his benefits were terminated, he was not capable of performing any gainful occupation for
19 which he was reasonably fitted by education, training, or experience. The vocational analysis
20 performed by Charles Galarraga, which relied on Dr. Cassini’s and Dr. Kriseman’s opinions
21 regarding Plaintiff’s lack of capacity to perform sedentary occupational demands, confirms this.
22 See AR2863-64.
23 The conclusion that Plaintiff was disabled because of MS symptoms in his legs at the time
24 his benefits were terminated is bolstered by the fact that Defendant paid Plaintiff LTD benefits for
25 more than nine years under the “any gainful occupation” standard based on symptoms of MS that
26 included discomfort and pain in his extremities. See Muniz, 623 F.3d at 1296 (“That benefits had
27 previously been awarded and paid may be evidence relevant to the issue of whether the claimant
1 F. Supp. 3d 904, 922 (N.D. Cal. 2023) (“But Unum’s decade-long approval of Plaintiff’s benefits
2 weighs in favor of the conclusion that she continues to have disabling medical conditions.”).
3 B. The Reasons That Defendant Gave in Its Denial Letters for Terminating
Plaintiff’s LTD Benefits Do Not Alter the Court’s Conclusion
4
5 Defendant’s termination of LTD benefits and the decision upholding the termination on
6 appeal were based in part on a form that Dr. Kriseman completed on March 10, 2023. On that
7 form, Dr. Kriseman checked a box indicating that she agreed that Plaintiff was capable of
8 performing sedentary occupational demands. AR1908. However, a letter that Dr. Kriseman
9 submitted in support of Plaintiff’s appeal on March 1, 2024 explains that she did not intend to
10 indicate on the March 10, 2023 form that Plaintiff “could return to work or that he was no longer
11 disabled.” See AR3119. The letter further states that Dr. Kriseman believed that Plaintiff was
12 disabled for any “activity that requires sustained and prolonged sitting” because of symptoms that
13 Plaintiff experienced after sitting for a short period of time. See id. The Court thus finds that Dr.
14 Kriseman’s March 1, 2024 letter plainly negated Defendant’s ability to rely on the March 10, 2023
15 form in the manner it did. Defendant stated in its final denial letter that Dr. Kriseman changed the
16 opinions she had expressed on the March 10, 2023 form after Plaintiff self-reported issues with
17 balance, fatigue, walking, and leg strength on March 28, 2023, implying that Plaintiff had not
18 previously mentioned those symptoms to Dr. Kriseman and only mentioned them to her on March
19 28, 2023 to get her to withdraw the March 10, 2023 form. See AR3165. However, medical
20 records show that Plaintiff also reported those symptoms to Dr. Kriseman two years earlier. On
21 March 17, 2021, Dr. Kriseman noted that Plaintiff was experiencing “ongoing chronic MS
22 symptoms,” including fatigue, leg pain, leg weakness, paresthesias, and spasms. AR1658. Thus,
23 the Court rejects the suggestion that Dr. Kriseman improperly modified her statements about
24 Plaintiff’s capacity to perform sedentary occupational demands based on questionable self-
25 reporting of new symptoms by Plaintiff to her after she completed the March 10, 2023 form.
26 The termination of benefits was also based in part on Defendant’s conclusion that
27 Plaintiff’s MRI scans and treatment for MS indicated that his MS was stable and was not
1 entitlement to LTD benefits under the Policy. However, Defendant has not pointed to any
2 provisions in the Policy or to any legal authority indicating that establishing continuing
3 degeneration of MS is necessary to prove entitlement to benefits based on MS-related symptoms.
4 Because Defendant paid LTD benefits to Plaintiff for more than nine years under the “any gainful
5 occupation” standard even though his MRI scans and MS treatment were stable, a lack of
6 degeneration in Plaintiff’s MS suggests that he continues to be disabled. See Saffon v. Wells
7 Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 871 (9th Cir. 2008) (“MetLife had been
8 paying Saffon long-term disability benefits for a year, which suggests that she was already
9 disabled. In order to find her no longer disabled, one would expect the MRIs to show an
10 improvement, not a lack of degeneration.”).6
11 Defendant also premised the termination of Plaintiff’s LTD benefits on its conclusion that
12 his activity level exceeded sedentary occupational demands because he had been coaching high
13 school baseball since 2017 and also participated in golf. This conclusion was based on
14 screenshots that Defendant took of Plaintiff’s Facebook page suggesting that Plaintiff may have
15 played golf and coached high school baseball, as well as printouts of websites and local news
16 articles suggesting that Plaintiff held various positions with the Hillsdale High School baseball
17 team. See, e.g., AR890-915; AR1581-97. The Court has reviewed these materials and finds that
18 they do not support the inference that Defendant invites the Court to draw from them, which is
19 that they demonstrate that Plaintiff can perform sedentary occupational demands on a full-time
20 basis. The materials themselves say nothing about the frequency or extent to which Plaintiff may
21 have engaged in coaching or golfing activities. At best, the materials suggest that Plaintiff may
22 have, at times, coached high school baseball and played golf. Without knowing the frequency and
23 duration of those activities, or the specifics of Plaintiff’s physical and cognitive exertion when
24 performing such activities, the materials in question have little to say about the extent of Plaintiff’s
25 disability or lack thereof. The Court therefore accords them little weight. The only materials in
26 the record that provide more detailed insight into Plaintiff’s coaching and golfing activities are the
27
1 letters he submitted in support of his appeal. There, Plaintiff and various people with personal
2 knowledge of his activities represent that his coaching was on a volunteer basis and was limited to
3 observing and mentoring players, watching film, and giving verbal instructions from the dugout or
4 outside the field, and that the maximum amount of time that Plaintiff could have spent on those
5 tasks was seven to eight hours per week during the three months of the year that baseball was in
6 season. See AR2887-90, AR2693. They also provide that Plaintiff’s golfing activities were
7 occasional and mostly involved riding in a golf cart. AR2693.
8 The Court finds that Plaintiff’s coaching and golfing activities do not weigh against its
9 conclusion that he was disabled at the time his benefits were terminated because there is no
10 evidence in the record showing that the activities involved exertion that equaled or exceeded the
11 sedentary occupational demands on a full-time basis. Such activities are not inconsistent with a
12 finding of disability for the additional reason that Defendant continued to pay Plaintiff LTD
13 benefits for years after it became aware of them. The record indicates that (1) Defendant was
14 aware as of September 2018 of at least some of the social media posts that it claims reflect
15 coaching and golfing activities by Plaintiff, see AR890-915; and (2) Defendant was aware as of
16 2020 that Plaintiff helped coach high school baseball during the season for couple of months when
17 he felt well enough, as Plaintiff himself conveyed that information to Defendant’s LTD benefits
18 staff, see AR1502. Despite being aware of this information, on February 3, 2021, Defendant
19 notified Plaintiff via letter that it had completed its review of his LTD benefits claim and that he
20 “continue[d] to be eligible for benefits under the policy.” See AR1505.
21 Defendant’s final letter upholding its termination of LTD benefits states that other
22 activities that Plaintiff engaged in on a regular basis, including household chores, grocery
23 shopping, gardening, and walking the dog, met or exceeded “what is needed to perform sedentary
24 level work.” AR3165. The Court finds that Defendant’s conclusion based on these activities is
25 flawed for reasons similar to the ones discussed above in the context of Plaintiff’s coaching and
26 golfing activities. There is no evidence in the record showing that the cited activities involved
27 full-time exertion, either alone or in combination, that equaled or exceeded the sedentary
1 after it learned that Plaintiff could engage in these activities, which indicates that they are not
2 inconsistent with Plaintiff being disabled because of MS symptoms. For example, in November
3 2020, Plaintiff reported to Defendant during his regular calls with claims staff that he cooked, did
4 laundry, walked the dog, grocery shopped, and drove during the day as part of his daily routine.
5 See AR1502. Despite being aware of this information, on February 3, 2021, Defendant notified
6 Plaintiff that he “continue[d] to be eligible for benefits under the policy.” See AR1505.
7 The termination of Plaintiff’s LTD benefits, and Defendant’s decision to uphold the
8 termination after the administrative appeal, were also predicated on the opinions of Defendant’s
9 retained physicians, Dr. Haller, Dr. Snyder, Dr. Chilungu, and Dr. Lin, all of whom concluded that
10 Plaintiff could perform sedentary occupational demands on a full-time basis.
11 The Court gives minimal weight to the opinions Dr. Haller, Dr. Snyder, and Dr. Chilungu
12 because they assume that Plaintiff’s ability to perform activities such as household chores,
13 walking the dog, coaching baseball, and golfing indicate a capacity to perform sedentary
14 occupational demands on a full-time basis. That assumption is unsupported for the reasons
15 discussed above. Further, Dr. Haller and Dr. Snyder did not take into account any of the letters
16 submitted in support of Plaintiff’s appeal. Dr. Chilungu considered Plaintiff’s letter in support of
17 his appeal but not those submitted by third parties. The letters that were omitted from the
18 physicians’ reports make clear that Plaintiff’s coaching activities were much more limited than
19 what they assumed in their reports. Dr. Haller, Dr. Snyder, and Dr. Chilungu also did not take into
20 account Dr. Cassini’s opinions, or the March 1, 2024 letter that Dr. Kriseman submitted in support
21 of Plaintiff’s appeal. While the omitted materials were submitted after the physicians had
22 completed their reports, Defendant could have asked them to write addenda to their reports after
23 providing the materials to them, but it didn’t.
24 The Court also gives minimal weight to the opinions of Dr. Lin for the following reasons.
25 First, Dr. Lin appears to have relied on Dr. Kriseman’s statement on the form dated March 10,
26 2023 that Plaintiff could perform sedentary occupational demands, and did so on the basis that
27 there is no evidence that Dr. Kriseman made a “mistake[]” when she completed that form. See
1 in her letter of March 1, 2024.7 Second, Dr. Lin assumed that Plaintiff’s ability to perform certain
2 activities, such grocery shopping, gardening, walking the dog, golfing, and coaching high school
3 baseball, indicates that he could perform sedentary occupational demands on a full-time basis.
4 However, that assumption is flawed for the reasons discussed above. Third, Dr. Lin assumed that
5 the fact that Plaintiff’s MS continued to be treated with Copaxone instead of more powerful
6 medications indicates that Plaintiff’s MS symptoms were not significant enough to preclude him
7 from performing sedentary occupational demands. However, the record indicates that Plaintiff has
8 remained on Copaxone at least in part because he has experienced no side effects on that
9 medication, while stronger medications carry an “increased risk of side effects[.]” See AR1659.
10 That Dr. Lin did not consider possible side effects as a reason for why stronger medications had
11 not been prescribed for Plaintiff renders his opinions less persuasive. Finally, Dr. Lin did not
12 personally examine Plaintiff to evaluate whether his self-reported MS symptoms prevent him from
13 performing sedentary occupational demands. Defendant was not required to ask Dr. Lin to
14 conduct an in-person examination of Plaintiff. But Dr. Lin’s failure to conduct such an
15 examination is an appropriate basis for the Court to accord less weight to his opinions, particularly
16 when Dr. Lin’s opinions contradict those of Dr. Cassini, who did conduct an in-person
17 neurological evaluation of Plaintiff to evaluate his self-reported symptoms. See Montour v.
18 Hartford Life & Acc. Ins. Co., 588 F.3d 623, 634 (9th Cir. 2009) (noting that a plan
19 administrator’s choice to rely on a paper review and to not require a physical exam by a non-
20 treating physician can “raise[] questions about the thoroughness and accuracy of the benefits
21 determination” in certain cases) (citation and internal quotation marks omitted); Heinrich v.
22 Prudential Ins. Co. of Am., No. C 04-02943 JF, 2005 WL 1868179, at *8 (N.D. Cal. July 29,
23 2005) (“[T]he failure of Prudential’s physicians to perform their own examinations of Heinrich
24 entitles their opinions to less weight, because fibromyalgia produces symptoms that must be
25
26
27
7 Although the March 1, 2024 letter was submitted by Dr. Kriseman after Dr. Lin completed his
1 reported by the patient to the physician and that can be evaluated more fully through an actual
2 examination than by a mere review of a patient’s medical record.”).
3 C. The Other Arguments that Defendant Advances in Its Briefs Also Do Not
Alter the Court’s Conclusion
4
5 Defendant contends that Plaintiff was not disabled when his benefits were terminated and
6 that his self-reported MS symptoms are not credible because: (1) his most recent MRI scans
7 showed no significant changes and his treatment for MS symptoms has remained the same; (2) he
8 has seen his treating neurologist only yearly since 2021 and skipped an annual MRI in 2022; and
9 (3) in 2022, “there was discussion of whether he could be taken off his medication.” See Dkt. No.
10 45 at 18; Dkt. No. 49 at 1, 9-10. The Court rejects this argument for the following reasons. First,
11 the fact that there have been no significant changes in Plaintiff’s MRI scans or treatment for MS is
12 not inconsistent with Plaintiff experiencing symptoms related to MS that preclude him from
13 working. This can be inferred from the fact that two neurologists, Dr. Kriseman and Dr. Cassini,
14 concluded that Plaintiff was disabled from MS-related symptoms even though his MRI scans and
15 treatment for MS have not changed significantly over the years. Second, the Court cannot
16 reasonably infer that the frequency of Plaintiff’s MRIs and visits to his neurologist indicates an
17 absence of disability or that Plaintiff’s self-reported symptoms are not credible because Defendant
18 has cited no evidence or binding authority indicating that people who suffer from disabling MS-
19 related symptoms tend to, or are required to, visit their neurologist and have MRIs more frequently
20 than Plaintiff did. Third, Defendant’s statement that there was discussion in 2022 that Plaintiff
21 could be taken off his medication for MS is unsupported.8
22
23
8 The only evidence that Defendant cites for the proposition that taking Plaintiff off his MS
24 treatment was discussed in 2022 is a note written by a pharmacist prior to Plaintiff’s appointment
with Dr. Kriseman on July 18, 2022. The pharmacist wrote: “Dr. Kriseman to determine
25 appropriateness of DMT; consider possible discontinuation of DMT due to clinical stability (MRI
and no relapse for at least 5 years).” AR1676. During Plaintiff’s visit with Dr. Kriseman on July
26 18, 2022, she discussed “other available DMD [sic] options that are on the market,” but ultimately
decided that Plaintiff would continue on Copaxone (the same medication for MS symptoms that
27 he had been on for years) because of concerns about side effects from other medications.
1 Relatedly, Defendant argues that Dr. Kriseman’s and Dr. Cassini’s opinions are not
2 reliable because they are premised on Plaintiff’s self-reported symptoms, which Defendant
3 contends are not credible. Because the Court has rejected Defendant’s argument that Plaintiff’s
4 self-reported MS symptoms lack credibility, this argument fails.
5 Defendant next contends that the opinions of Dr. Kriseman and Dr. Cassini are conclusory
6 and should be accorded no weight. The Court is not persuaded and finds that the opinions are
7 sufficiently detailed, reliable, and entitled to significant weight for the reasons discussed above.
8 Defendant also argues that Plaintiff has not shown that his inability to sit for more than ten
9 to fifteen minutes at a time precludes him from performing sedentary occupational demands
10 because such demands allow for changes in position. See Dkt. No. 49 at 6. The Court disagrees.
11 As noted, according to Defendant, sedentary occupational demands require, in relevant part:
12 “mostly sitting, may involve standing or walking for brief periods of time, with the ability to make
13 positional changes.” See AR2575. Defendant has cited no evidence or legal authority indicating
14 that “get[ting] up and mov[ing] around” for about ten minutes after every ten to fifteen minutes of
15 sitting (which is what Plaintiff needs to do to relieve his leg pain and discomfort according to Dr.
16 Kriseman, see AR2339-40) would fall within the scope of the “positional changes” that are
17 permitted. Further, while the sedentary occupational demands’ “mostly sitting” requirement “may
18 involve standing or walking for brief periods of time,” AR2575 (emphasis added), Defendant has
19 cited no evidence or authority supporting its contention that moving around for about ten minutes
20 after every ten to fifteen minutes of sitting would qualify as “mostly sitting, standing or walking
21 for brief periods of time.” Plaintiff needs to move around for ten minutes after every ten to fifteen
22 minutes of sitting. That means that Plaintiff needs to be moving around about half the time and
23 can only sit about half the time, which is not consistent with being capable of performing
24 sedentary occupational demands that require “mostly sitting.” See Armani v. Nw. Mut. Life Ins.
25 Co., 840 F.3d 1159, 1163 (9th Cir. 2016) (holding that “an employee who is unable to sit for more
26 than half of the workday cannot consistently perform an occupation that requires sitting for ‘most
27 of the time’”) (collecting and discussing relevant authorities).
1 Defendant next contends that its termination of Plaintiff’s LTD benefits was appropriate
2 because its initial approval of LTD benefits in 2012 was based on the assumption that Plaintiff’s
3 condition was due to Secondary Relapsing-Remitting MS, which, according to Defendant, is a
4 more serious, progressive form of MS. See Dkt. No. 49 at 1-2. Defendant argues that the
5 termination of benefits was justified because Dr. Kriseman diagnosed Plaintiff with Relapsing-
6 Remitting MS in March 2023, which, according to Defendant, is a less serious form of the disease.
7 See id. This argument fails because Defendant did not raise it when it terminated Plaintiff’s LTD
8 benefits or when it later upheld the termination.9 See Collier v. Lincoln Life Assurance Co. of
9 Bos., 53 F.4th 1180, 1188 (9th Cir. 2022) (holding that a plan administrator is barred from raising
10 new rationales in litigation that it did not cite “when it denied [the] claim initially and on review”)
11 (citations omitted). The argument fails for the additional reason that the record does not reflect
12 that Dr. Kriseman diagnosed Plaintiff with Relapsing-Remitting MS in 2023. Defendant’s own
13 retained physicians noted in their reports that Plaintiff had been diagnosed with Relapsing-
14 Remitting MS in 2006, which is at least five years before Plaintiff applied for LTD benefits. See,
15 e.g., AR2653 (Dr. Haller noting that “the available information in the file reflects the insured has a
16 diagnosis of relapsing remitting multiple sclerosis since 2006 with symptoms including optic
17 neuritis, fatigue and bilateral leg weakness/paresthesias”). Thus, Plaintiff has had a diagnosis of
18 Relapsing-Remitting MS at all relevant times.
19 Finally, Defendant argues that the fact that Plaintiff’s treating family medicine physician,
20 Dr. Chang, stated in a form he filled out in October 2020 that Plaintiff did not have any physical or
21 behavioral restrictions or limitations, see AR1076, indicates that Plaintiff was not disabled by MS
22 symptoms at the time his benefits were terminated. See Dkt. No. 45 at 19. But again, Defendant
23 did not raise this argument when it terminated Plaintiff’s LTD benefits or when it later upheld the
24 termination, so the Court can’t consider it now. See Collier, 53 F.4th at 1188. And even if the
25 Court could consider it, the statements on the form would be entitled to minimal weight.
26
27
9 Defendant does not point to any portion of the administrative record showing that it terminated
] Plaintiff's medical records indicate that his MS was treated not by Dr. Chang, who is a family
2 || medicine physician, but by various neurologists, the most recent of whom was Dr. Kriseman.
3 Thus, Dr. Chang’s statements on the form of October 2020 do not speak to Plaintiff's MS
4 || symptoms and any restrictions and limitations that he may have experienced because of them.
5 This conclusion is supported by the fact that in February 2021, only a few months after it received
6 || Dr. Chang’s statements of October 2020, Defendant approved the continued payment of LTD
7 || benefits based on Plaintiff's MS symptoms without mentioning those statements in the approval
8 letter. See AR1505. Thereafter, Defendant continued to pay LTD benefits to Plaintiff for at least
9 || two more years, until it terminated the benefits in April 2023 for reasons other than the statements
10 || i Dr. Chang’s note.
11 In sum, the Court finds and concludes that Plaintiff has met his burden of showing by a
12 || preponderance of the evidence that, at the time his LTD benefits were terminated, he could not
13 || perform any gainful occupation because of physical symptoms of MS in his legs. Defendant thus
14 || erred in terminating Plaintiff's benefits and in later upholding the termination.
3 15 IV. CONCLUSION
a 16 The Court GRANTS Plaintiff's motion for judgment (Dkt. No. 43) and DENIES
2 17 || Defendant’s motion for judgment (Dkt. No. 45).
Z 18 The Clerk is directed to enter judgment in favor of Plaintiff and to close the case. The
19 || parties are directed to meet and confer regarding the filing and briefing schedule for any motion
20 || for attorneys’ fees and costs.
21 IT IS SO ORDERED.
22 Dated: March 27, 2026
Aauprerd 8 Mbt)
HAYWOOD S. GILLIAM, JR.
24 United States District Judge
25
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28