Kevin Wilcox v. Dearborn Insurance Company

Case 2:21-cv-04605-JLS-JC Document 58 Filed 01/26/23 Page 1 of 22 Page ID #:4239

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

KEVIN WILCOX, Case No. 2:21-cv-04605-JLS (JCx)

Plaintiff, FINDINGS OF FACT AND

CONCLUSIONS OF LAW RE:

v. CROSS MOTIONS FOR

JUDGMENT (Docs. 38 and 46)

DEARBORN LIFE INSURANCE

COMPANY; AMGEN, INC. LIFE

INSURANCE PLAN,

Defendants.

This action for arises out of Plaintiff Kevin Wilcox’s life insurance policy,

under the terms of which Plaintiff claims entitlement to continued coverage and

waiver of the premium due to disability. Resolution of whether Plaintiff is entitled to

the waiver of the premium requires determination of whether Plaintiff remains “totally

disabled” as that term is defined by the relevant policy. The parties have filed opening

and responsive briefs. (See Docs. 38 & 47(Pltf.’s Op. and Resp. Br.); Docs. 46 & 47

(Def.’s Op. and Resp. Br.).) Defendant filed the administrative record. (See Doc. 44

(sealed).) Plaintiff filed two notices of supplemental authority. (Docs. 49 & 56.) As

set forth herein, the Court determines that Plaintiff has failed to establish he continues

to be “totally disabled” as defined by the relevant policy. As such, his claim for

continued life insurance coverage based on a premium waiver is DENIED.

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I. LEGAL STANDARDS

A. Federal Rule of Civil Procedure Rule 52

This matter is properly before the Court pursuant to Federal Rule of Civil

Procedure 52. Rule 52 motions for judgment are “bench trial[s] on the record,” and

the Court “make[s] findings of fact under Federal Rule of Civil Procedure 52(a).”

Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc). “In a

trial on the record, but not on summary judgment, the judge can evaluate the

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

B. Standard of Review

The Court reviews this matter de novo. Under a de novo standard of review,

“[t]he court simply proceeds to evaluate whether the plan administrator correctly or

incorrectly denied benefits.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963

(9th Cir. 2006). That is, the Court “determines in the first instance if the claimant has

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

v. Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1295-96 (9th Cir. 2010). In doing so, the

Court must focus on the rationale given to the claimant when benefits are denied or

terminated, and it must determine whether the administrator’s decision is supported by

the record. Collier v. Lincoln Life Assurance Co. of Bos., 53 F.4th 1180, 1182 (9th

Cir. 2022).

C. Burden of Proof

Plaintiff bears the burden of establishing by a preponderance of the evidence his

entitlement to coverage and waiver of his life insurance premium (i.e., that he was

totally disabled under the relevant policy definition during the relevant time period).

Armani v. Nw. Mut. Life Ins. Co., 840 F.3d 1159, 1163 (9th Cir. 2016); Muniz, 623

F.3d at 1294. To do so, Plaintiff must establish that he was more likely than not

“totally disabled” under the terms of the relevant policy at the time his coverage was

revoked. See, e.g., Hart v. Unum Life Ins. Co. of Am., 253 F. Supp. 3d 1053, 1074

(N.D. Cal. 2017); Porco v. Prudential Ins. Co. of Am., 682 F. Supp. 2d 1057, 1080

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(C.D. Cal. 2010).

D. Evidence Considered by the Court

The Court generally limits its review to “the evidence that was before the plan

administrator at the time [the] determination [was made].” Opeta v. Northwest

Airlines Pension Plan, 484 F.3d 1211, 1217 (9th Cir. 2007). Evidence before the

Court need not be admissible under the Federal Rules of Evidence; instead, it “may be

considered so long as it is relevant, probative, and bears a satisfactory indicia of

reliability.” See Tremain v. Bell Indus., Inc., 196 F.3d 970, 978 (9th Cir. 1999).

E. Analyzing Medical Evidence

A mere diagnosis is not dispositive of the issue of disability. See Matthews v.

Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (“The mere existence of an impairment is

insufficient proof of a disability. . . . A claimant bears the burden of proving that an

impairment is disabling.”) (internal quotation marks and citation omitted).

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

conclusion of any particular treatment provider or medical file review. For instance,

the Court does not accord special deference to the opinions of treating physicians

based on their status as treating physicians. Black & Decker Disability Plan v. Nord,

538 U.S. 822, 834 (2003). Instead, medical opinions “must . . . be accorded whatever

weight they merit.” Jebian v. Hewlett-Packard Co. Employee Benefits Org. Income

Prot. Plan, 349 F.3d 1098, 1109 n.8 (9th Cir. 2003) (citing Nord).

The Court may give greater weight to a treating physician’s opinion where it is

evident a particular physician has had “a greater opportunity to know and observe the

patient than a physician retained by the plan administrator” who conducts a file

review. Id. (internal quotation marks omitted). However, where a treating physician

lacks expertise in a particular area, and the plan’s retained expert is a specialist in that

area, it may be appropriate for a court to give greater weight to the specialist who

merely conducts a file review. See Nord, 538 U.S. at 832.

Moreover, in cases such as this one, courts have noted an apparent tension

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between treating physicians, who may tend to favor an opinion of “disabled” in a

close case, and physicians who are routinely hired by plan administrators, who may

favor a finding of “not disabled” in the same case. See id. It is therefore incumbent

upon the Court to carefully assess and weigh all the evidence in light of the issues

before the Court. Here, the Court has done so.

F. “Any Occupation”

The relevant definition has been the subject of much litigation. To qualify for

continued coverage, Plaintiff must establish he is “completely unable because of

Sickness or Injury to engage in any occupation for wage or profit or any occupation

for which [he] become[s] qualified by education, training or experience.” (632.)

This definition has been routinely interpreted to include part time rather than full time

work. See Graeber v. Hewlett Packard Co. Emp. Benefits Org. Income Prot. Plan,

421 F. Supp. 2d 1246, 1254 (N.D. Cal. 2006) (collecting cases), aff’d, 281 F. App’x

679 (9th Cir. 2008). The “any occupation” clause is found to mean “any job for which

he was qualified by training, education, or experience.” See McKenzie v. General

Telephone Co. of California, 41 F.3d 1310, 1313 n.2, 1317 (9th Cir.1994)

(interpreting a definition of disability stating that a claim must be “completely unable

to engage in any and every duty pertaining to any occupation or employment for wage

or profit for which you are or become reasonably qualified by training, education or

experience”), overruled on other grounds by Saffon v Wells Fargo & Co. Long Term

Dis. Plan, 522 F.3d 863, 872 n.2 (9th Cir. 2008). References in an “any occupation”

clause to the insured’s “education, training or experience” necessarily requires

consideration of those unique characteristics. Pannebecker v. Liberty Life Assur. Co.

of Bos., 542 F.3d 1213, 1220 (9th Cir. 2008) (“[A] plan that incorporates ‘training,

education, or experience’ requires some individuation in the analysis.”)

G. Communication Regarding Claim Denial

ERISA requires specific information be communicated to an ERISA participant

who is denied benefits. In addition to providing the plan or policy provisions

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implicated by a claim, the administrator must set forth the specific reason for the

denial. Booton v. Lockheed Med. Ben. Plan, 110 F.3d 1461, 1463 (9th Cir. 1997)

(explaining the requirements of 29 C.F.R. § 2560.503-1(f)). The claimant must also

be provided with a description of any additional information needed for a claimant to

perfect his claim (and why the information is necessary). Id. A claimant must also be

provided with information regarding how to seek review of the decision. Id.

The communication with the claimant limits the arguments available to the plan

administrator in subsequent litigation. Courts are directed to focus the analysis

regarding an ERISA claim-for-benefits on the record before the plan administrator and

the rationale given to the claimant by the plan administrator when benefits are denied

or terminated. Collier, 53 F.4th at 1182.

II. FINDINGS OF FACT AND DETERMINATION OF ENTITLMENT TO

CONTINUED COVERAGE

In relevant part, the evidence before the Court may be summarized as follows.

A. Policy Language and Claim Chronology

Plaintiff was the Director of Employee Benefits at Amgen Corporation when he

ceased working in 2012. (AR 707).1 At that time, Wilcox had a Master’s Degree in

Business Administration and had been with Amgen for eight years. (1484.)

Workplace discord contributed to his disability, which included, according to Plaintiff,

panic attacks, difficulty completing work tasks, and lack of concentration both at

home and at work. (1224.)

At the time he stopped working, Wilcox was covered as a Participant in

Defendant Amgen, Inc. Life Insurance Plan, which was, in turn, insured by Defendant

Dearborn Life Insurance Company (“Dearborn”). The relevant life insurance policy

(“the Policy”) provided continuation of coverage and waiver of premium under certain

circumstances:

1 All pinpoint citations to the record are citations to the administrative record, filed by Defendant

Dearborn Life Insurance Company. (See Doc. 44 (sealed administrative record).)

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We will continue Your Basic and Supplemental life insurance benefit and

Dependent Life Insurance, if applicable, under the Policy without further

payment of life insurance premium if You become Totally Disabled, [if]

. . . You provide Us with satisfactory written proof of within 12 months

after the date You became Totally Disabled . . . and . . . Your Total

Disability has continued without interruption for at least 9 months . . .

You are still Totally Disabled when You submit the proof of disability.

(632 (emphasis omitted, paragraph structure altered).) The Policy defines “Totally

Disability”:

Total Disability or Totally Disabled means You are diagnosed by a

Doctor to be completely unable because of Sickness or Injury to engage

in any occupation for wage or profit or any occupation for which You

become qualified by education, training or experience.

(632.) The Policy allocates the burden of establishing Total Disability to the

Participant. (AR 632 (“You are responsible for obtaining initial and continuing proof

of Total Disability.”).)

Dearborn assessed and approved Plaintiff’s initial claim2 and continued it for

other time periods:

11/27/13 Extended through 01/01/14. (1808.)

06/24/15 Extended through 09/30/14. (1716.)

10/05/15 Extended through 10/01/17. (1791.)

03/08/18 Extended through 10/01/19. (1660.)

In July 2019, Dearborn asked Plaintiff for additional information for Dearborn’s

continuing review. (1621-1622.) In response, Wilcox provided Dearborn with

additional documentation of his disabilities and how they prevented him from

working. (1479-1485, 1145-1185).

2 Neither party cites to the initial approval letter, but both agree the claim was approved.

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On February 5, 2020, Dearborn terminated Plaintiff’s coverage,3 claiming that

he no longer met the policy’s definition of “totally disabled.” (1626-1629.) Of note,

Dearborn acknowledged that Plaintiff’s “return to [his] previous occupation may not

be possible at [that] time,” but also noted that he “retain[ed] a level of function that

would permit [him] to perform other[,] less demanding work in another occupation.”

(1627.) Dearborn’s letter noted improved neuropsychological functioning

documented in 2018 and remission of depressive condition and anxiety in 2019.

(1627.) It also noted Plaintiff’s ability to use a computer, to write by hand, and lack of

difficulties with fine motor tasks. (1627.)

On February 3, 2021, Plaintiff appealed Dearborn’s termination of his coverage

and submitted follow up medical evidence. (1543-46.) Dearborn denied his appeal.

(1664-1672). In doing so, Dearborn relied on the reports of its reviewing physicians.

It noted that Plaintiff’s claim of continuing total disability as to “any occupation” was

not supported by the office notes or objective medical evidence during the relevant

time period. It specifically differentiated between medical (physical) conditions and

psychiatric conditions, concluding that neither supported a finding of total disability.

Of note, Plaintiff’s subjective complaints of severe and chronic diarrhea were rejected

on the basis of the lack of documentation of weight loss, laboratory abnormality, or

dehydration due to this issue.

After Dearborn denied Plaintiff’s appeal, this suit followed.

B. Medical Evidence

The administrative record is in this case is voluminous, spanning about eight

years, and totaling almost 1,900 pages. Because the only relevant determination is

whether Plaintiff continued to be totally disabled as defined by the Policy as October

1, 2019 and beyond, not all the medical evidence is summarized here. Instead,

3 The letter lacks a definite effective date of the termination; it does not specify if the termination

was to be effective as of October 1, 2019, the ending date of the last extension, or February 5, 2020,

the date of the letter. Because this is a question of life insurance coverage and not a question of

eligibility for long-term disability benefits, the imprecision is inconsequential. The Court’s analysis

would be the same regardless of which of these dates are considered.

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historical medical evidence is discussed only to the extent relevant to the Court’s

analysis. The most relevant medical evidence is summarized below in chronological

order.

09/26/14 Neuropsychological assessment report by Nicholas Thaler, Ph.D. (1348-

1351.) Dr. Thaler indicated that the results of neuropsychological tests

were invalid. Specifically, he noted that Plaintiff “failed his measures of

performance validity” as to this testing. (1350.) Dr. Thaler offered two

alternative reasons for the invalidity: “This indicates that the patient was

likely not attending to test stimuli, or [was] purposefully failing [in order]

to project an image of significant cognitive dysfunction.” (1350.) Dr.

Thaler did not opine as to which alternative he believed explained the

results; instead, he noted both that Plaintiff’s “poor scores [were] not

congruent with his observed functioning” and that Plaintiff “may be

eligible for neuropsychological testing at a later point, if he approaches

testing with the proper care required for valid results.” (1350-1351.)

04/23/2015 Neuropsychological assessment report by Jane Lewis, Ph.D. (46-57.) In

contrast to the earlier testing by Dr. Thaler, Dr. Lewis reported that

Plaintiff passed objective validity measures as to this testing. (51 (noting

that Plaintiff “was pleasant and cooperative with all that was requested of

him, and he appeared to be putting forth his best efforts, which is

supported by his passing the TOMM and the Reliable Digit Span

measures”); see 55 (“There is no evidence he was exaggerating the level

of his cognitive deficits.”).) Dr. Lewis assessed Plaintiff as functioning

at the “[l]ow [a]verage range of intellect,” which was “dramatically lower

than his pre-morbid level of functioning.” (56.) Dr. Lewis elaborated

that Plaintiff’s “cognitive functioning deficits are most dramatic in areas

of attention and concentration and the learning of new information, as

well as in processing speed and executive functioning.” (56.) Dr. Lewis

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recommended that Plaintiff “[a]dher[e] to a structure and continu[e] to

reduce stress.” (AR 57.)

03/14/16 Completed “HIV Residual Functional Capacity Questionnaire” by Dr.

Bruce Williams. (1547-1554.) Overall, Dr. Williams evaluated Plaintiff

as having a fair prognosis. Plaintiff was noted to suffer from

pain/paresthesia (“pins-and-needles” sensations), encephalopathy

characterized by cognitive or motor dysfunction that limits function and

progresses, chronic diarrhea, dry mouth, nausea, and decreased libido.

Dr. Williams believed Plaintiff had limitations of activities of daily

living, social functioning, completing tasks in a timely manner as a result

of peripheral neuropathy, involuntary weight loss, pain, and insomnia.

He also rated Plaintiff being severely limited in his ability to deal with

work stress, and that he would be unlikely to be able to work regularly,

get to work on time, having his performance supervised, remaining at the

workplace for a full day, and dealing with others appropriately. Dr.

Williamson believed that emotional factors contributed to Plaintiff’s

symptoms and functional limitations, and that Plaintiff’s symptoms

would constantly interfere with his attention and concentration. He

expected Plaintiff’s symptoms to last at least 12 months. He assessed

Plaintiff’s functional limitations as follows: able to walk 0-1 city blocks

without rest, able to sit for 10 minutes, able to stand for 20 minutes, and

during an eight-hour work day, to sit and stand or walk for less than 2

hours. Dr. Williams explained Plaintiff’s decreased concentration led to

agitation and inability to work. Plaintiff could lift ten pounds or less

occasionally, he had minor limitations on using hands, fingers, arms, and

bending and twisting at the waist. Dr. Williams believed Plaintiff should

avoid all exposure to such things as extreme cold and heat, chemicals,

cigarette smoke, and odors. Plaintiff could be expected to miss more

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than three days per months due to his impairment or treatment. Dr.

Williams explained Plaintiff had difficulty concentrating, decreased

memory, and frequent agitation related to anxiety.

03/28/18 Neuropsychological Evaluation Report by Robert Thoma, Ph.D. (1164-

1171.) On good effort and passing built-in measures of validity (1166),

Dr. Thoma noted that Plaintiff exhibited “significantly better functioning

across all cognitive domains” since the testing in 2015. (1170.) Dr.

Thoma attributed this, at least in part, to “reduced psychosocial stress.”

(1170.) Dr. Thoma noted that Plaintiff’s “[o]verall . . .

neuropsychological functioning . . . was in the average range,” but that

although Plaintiff’s functioning did not indicate impairment, it “was

below expectation.” (1170.) Although executive functioning was within

expectation overall, certain scores indicated that Plaintiff had “difficulty

with activities and tasks involving sustained attention, impulse control,

emotional regulation, organization, and planning.” (1170.) Dr. Thoma

was also of the opinion that Plaintiff’s condition could “leave him

susceptible to disrupted attention and perhaps variability in those

symptoms related to acute levels of distress, fatigue, or

medical/metabolic functioning at any given time.” (1170.) Notably, Dr.

Thoma confirmed “a discrepancy between premorbid levels of

functioning and current levels of cognitive functioning [that were]

consistent with his previous diagnosis of cognitive disorder [not

otherwise specified].” (1170.) Thus, Dr. Thoma noted that “an updated

diagnosis of . . . Mild Neurocognitive disorder due to HIV infection [to

be] most consistent with the [observed] results” of the testing. (1170.)

06/12/19 Behavioral Health Note signed by Brant Hager, MD, psychiatrist, and

Ruston Mitchell, LCSW. (1154-1157.) Dr. Hager notes diagnoses of

recurrent depressive disorder and mild neurocognitive disorder due to

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HIV. (1154.) The form does not specify a return-to-work date for full

time or part time work; instead, it states: “N/A” for “not applicable.”

(1154.) Dr. Hager opined that “testing suggests difficulty with activities

and tasks involving sustained attention, impulse control, emotional

regulation, organization, and planning. (1154.) He states that Plaintiff’s

“current limitations are based on neurocognitive disorder and return to

work [is] not advised.” (1154.) Other impairments limiting work

activity are described as “depressed mood, anhedonia [(inability to feel

pleasure), and] fatigue.” (1155.)

06/21/19 Attending Physician’s Statement by Tracy Carlson, MD. (1145-1153.)

Dr. Carlson is Plaintiff’s primary care physician. (1151.) Dr. Carlson

noted Plaintiff’s diagnoses as HIV, HIV-associated neurocognitive

disorder, and HIV-associated peripheral neuropathy. 1145 She listed

subjective symptoms as including “pain, paresthesia [(“pins-and-needles”

sensation caused by nerve damage)], confusion, disorientation, impaired

concentration, [and] impaired decision-making.” 1145 Dr. Carlson

referred to Dr. Thoma’s neuropsychological tests to point out Plaintiff’s

“impaired immediate memory” and “impaired attention, impulse control,

emotional regulation, organization, [and] planning.” 1145 She noted

that Plaintiff was unable to drive and required assistance with finances

and other complex decisions. 1147 She further opined that she expected

his restrictions to be “lifelong.” 1147 She reported that “he has

exacerbation of neuropathy symptoms if he stands or walks for more than

one hour at a time,” and that he also “reports fatigue and pain after 2

hours of sitting.” (1151.)

08/30/19 Emergency Department Note by Miryam Miller MD. Plaintiff fell off a

stepstool, resulting in minor injury. (See 812-17.)

02/03/20 Dearborn file review by Colton Edwards, RN BSN. (1819-1821.) Nurse

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Edwards reviewed, inter alia, Dr. Carlson’s June 21, 2019 note. Nurse

Edwards’ summary of Dr. Carlson’s statement includes the inaccurate

statement4 that Dr. Carlson had “[n]ot advised [Plaintiff] to reduce or

cease work or work light duty.” (1820.) Overall, Nurse Edwards

assessed Plaintiff as not meeting the definition of total disability:

The patient has a history positive for HIV and reportedly had

worsening concentration and memory over time. The

neuropsychological evaluation dated 03/28/18 stated that he was

experiencing significantly better functioning across all cognitive

domains since a previous evaluation in 2015. This was thought to

be likely secondary to treatment and reduced psychosocial stress.

Mild cognitive disorder due to HIV infection was considered an

appropriate diagnosis at this time. Some anxiety and depressed

mood were noted on progress notes, though these findings were

not consistent and no other signs of functional impairment related

to psychological condition were indicated. As of 02/21/19 his

chronic depression with anxious quality was noted to be stably

remitted, though he began psychotherapy in late June 2019 for

cognitive impairment, depressed mood and anhedonia, and fatigue.

As of 07/30/19, therapy showed slight progress with the patient

reporting an overall decrease in depression and anxiety symptoms.

These findings are not supportive of a level of dysfunction

significant enough to preclude his ability to perform the duties of

any occupation.

(1821.)

11/19/20 Letter from Dr. Carlson submitted with Plaintiff’s appeal. (1557-1559.)

4 Dr. Carlson wrote on the form “unable to work” without equivocation and she answered “no” to a

question addressing whether Plaintiff “could . . . resume some/all work duties while continuing with

treatment.” (1147.)

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Therein, Dr. Carlson discusses at length her assessment of Plaintiff’s

health and ability to work. According to Dr. Carlson, Plaintiff continued

to suffer from HIV-associated cognitive disorder resulting in deficits in

attention, memory, impulse control, emotional regulation, organizing,

and planning. (1557.) She noted that Plaintiff continued to suffer from

chronic and unpredictable diarrhea due to HIV-related enteropathy.

(1557.) Dr. Carlson opined that even with Plaintiff’s management of his

condition with adult diapers, this condition “would impair his ability to

perform work that required in-person meetings, travel, or prolonged

periods of uninterrupted time at a desk.” (1558.) Dr. Carlson further

noted that Plaintiff suffered from chronic pain in the knees and feet due

to osteoarthritis and HIV-related peripheral neuropathy, respectively,

limiting his stamina for standing and walking. (1557.) Although no

longer suffering from major depression, Plaintiff continued to suffer from

anxiety and depression, which was improved with medication, but

exacerbated by stress. (1557.) Dr. Carlson recounted Plaintiff’s credible

accounts to her of difficulty with memory tasks, organization,

understanding multi-step processes, impulse control, and emotional

regulation. (1557.) Based on this, Dr. Carlson states that: “In my

professional opinion, these deficits would significantly impair his ability

to work that required concentration, decision-making, and/or memory.”

(1558.) Declining to provide specific limitations as to sitting, standing,

walking, lifting, and manual dexterity in favor of an occupational therapy

assessment, Dr. Carlson noted that Plaintiff’s “principal disabilities are

cognitive and gastrointestinal.” (1558.) She also opined that “[c]hronic

pain would likely impose significant physical restrictions on the work he

would be able to perform.” (1558.)

01/26/21 Letter from Dr. Hager submitted with Plaintiff’s appeal. (1560.) Dr.

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Hager states that he is limited in the information he could disclose: “The

details of [Plaintiff’s] care are protected under law. For the purpose of

this letter, Mr. Wilcox has permitted me to disclose the following.”

(1560.) Dr. Hager notes that the use of the word “mild” to describe

Plaintiff’s condition should not be read to imply the absence of functional

deficits. (1560.) Dr. Hager clarified that “Mild Neurocognitive Disorder

due to HIV” is only mild in comparison to more severe cases of the same

disorder. (1560.) Dr. Hager clarified that his June 2019 paperwork, in

which Dr. Hager recommended Plaintiff not return to work, “was based

on the presence of both a neurocognitive disorder and depressive

disorders.” (1560.) Dr. Hager stated that the neurocognitive disorder

“was likely to prohibit [Plaintiff] from functioning at his previous level

of employment,” and the depressive disorders “were likely to exacerbate

in the context of work related stress.” (1560.)

03/11/21 Report from Dearborn’s reviewing psychiatrist, Eric M. Chavez, M.D.

Dr. Chavez opined that Plaintiff has “no psychiatric diagnoses affecting

[his] functional level.” (1826-1831.) Dr. Chavez referenced Plaintiff’s

psychiatrist’s documentation of remission of Plaintiff’s persistent

depressive disorder, as well as psychiatric and therapy progress notes that

“consistently documented a normal mental status exam.” (1829.) In

noting that Plaintiff’s depression and trouble with memory did not cause

functional impairment, Dr. Chavez referred to the treatment notes in the

record. (See 1829 (relying on a 02/21/19 note regarding Plaintiff’s

“sustained improvement in depression symptoms,” a 07/11/19 note

regarding the provider discussing with Plaintiff ways to address memory

issues, a 07/16/19 note discussing similar topic, a 07/23/19 note that

Plaintiff’s mental status exam was normal, a 07/29/19 note from

psychiatrist visit reporting excellent control of chronic depression

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symptoms, and a 07/30/19 note regarding the provider discussing using

exercise to decrease anxiety and depression).) Dr. Chavez noted that

neuropsychological testing from 2018 showed average function in all

areas of testing, and showed improvement from 2015, possibility

attributable to resolution of psychiatric symptoms. (1830.)

03/12/21 Report from Dearborn’s reviewing physician, Joseph Lee (1832-1835.)

Dr. Lee, internist, opined that Plaintiff’s medical doctor’s chart notes did

not support finding that Plaintiff’s non-psychiatric medical conditions

(identified as “debilitating diarrhea, peripheral neuropathy, and

osteoarthritis”) “reach[ed] a level that would result in any physical

functional impairment.” (1833.) Dr. Lee based this opinion on the

absence of “objective findings in the form of vitals, exam findings, labs,

or imaging findings to support any physical function impairment,” and

he further noted that Plaintiff’s physical exams were unremarkable.

(1833.) Specifically, as to objective findings, Dr. Lee noted that a blood

count showed Plaintiff’s HIV was “not active”; as to Plaintiff’s other

medical conditions, Dr. Lee noted the lack of objective evidence.

(1834.) As to the chronic diarrhea, Dr. Lee notes the absence of

documented weight loss, laboratory abnormalities, or dehydration. As to

the osteoarthritis, he notes that no imaging was provided, that the records

did not document the manner or extent to which this condition limited

Plaintiff. (1834.) Finally, Dr. Lee noted a lack of documentation as to

how Plaintiff’s peripheral neuropathy limited Plaintiff’s functioning.

(1834.)

III. CONCLUSIONS OF LAW AND TERMINATION OF COVERAGE

The Policy is an “employee welfare benefit plan” governed by ERISA. See 29

U.S.C. § 1002(1).

Upon review of the administrative record, and applying the legal standards set

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forth herein, the Court concludes that Dearborn properly terminated Plaintiff’s life

insurance coverage. Both ERISA and the Policy language allocate to Plaintiff the

burden of establishing continuing total disability from performing any occupation.

Plaintiff failed to submit sufficient proof that he continued to be totally disabled as

defined by the Policy after October 1, 2019. Dearborn’s decision to terminate

Plaintiff’s coverage was consistent with the Policy language and the evidence of

record.

A. Dearborn’s File Reviewers Identified Reasons to Find that Plaintiff

Was Not Totally Disabled from Performing “Any Occupation”

As noted above, Dearborn had both a psychiatrist and an internist review

Plaintiff’s file. Reviewing Dr. Williams’s 2016 HIV Functional Residual Capacity

form (summarized above) and more recent records, Dr. Chavez opined that the

medical records showed that Plaintiff had “no psychiatric diagnoses affecting [his]

functional level.” (1829.) Although Plaintiff had suffered from major depressive

disorder, Dr. Chavez pointed out that a February 29, 2019 office note that showed

improvement in his symptoms of depression, noted as remission of Plaintiff’s

depressive disorder; Dr. Chavez also referred to an office note dated July 26, 2019 that

“reported excellent control of his chronic depression symptoms.” (1829.) Dr. Chavez

noted that the 2018 neuropsychological testing showed functioning in the average

range which, although lower than expected, did not indicate impairment. (1830.)

Dr. Lee’s review found an absence of chart notes that would support a finding that

Plaintiff suffered from debilitating diarrhea, peripheral neuropathy, and osteoarthritis

to the extent that would restrict him from working. (1833-34.)

B. Plaintiff Did Not Met His Burden of Proof

The law allocates the burden of proving he is disabled to Plaintiff. The Policy

reiterates this burden. The review undertaken by Dearborn in February 2020, just

before reaching the decision to terminate Plaintiff’s coverage, included medical

records only through the end of August 2019. (1626-1629 (Feb. 5, 2020 denial letter);

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see also 1826-1831 (Dr. Chavez review of medical records); 1832-1835 (Dr. Lee

review of medical records).) Thus, Dearborn expressly informed Plaintiff that a

reversal of the denial and “a favorable decision” would require, “[a]t a minimum,” the

submission of certain up-to-date records, including “[p]sychological reports, office

notes, GAF scores from 9/1/2019 to the present[, and a] Functional Capacity

Evaluation.”5 (1627.)

Plaintiff did not provide the information specified by Dearborn. Instead,

Plaintiff submitted a letter from his disability insurer that found him disabled under

the terms of the relevant policy, Plaintiff’s personal statement, and updated letters

from his psychiatrist and his primary care physician. Plaintiff did not provide updated

GAF scores or an updated functional capacity evaluation. His doctors’ letters did not

include any office notes or reports. As discussed below in a separate section, the

evidence submitted by Plaintiff did not establish his continuing total disability under

the terms of the Policy after October 2019.

On this issue of burden of proof, Plaintiff argues that Dearborn failed to engage

in a “meaningful dialogue” with Plaintiff regarding a claim. (Pltf. Op. Br. at 16-17

(relying on Booton v. Lockheed Med. Ben. Plan, 110 F.3d 1461, 1463 (9th Cir. 1997).)

Booten used this phrase to refer to the ERISA regulations that set forth specific

requirements for denial of ERISA claims:

Under federal law, an ERISA plan “shall provide to every claimant

who is denied a claim for benefits written notice setting forth in a manner

calculated to be understood by the claimant: (1) The specific reason or

reasons for the denial; (2) Specific reference to pertinent plan provisions

on which the denial is based; (3) A description of any additional material

or information necessary for the claimant to perfect the claim and an

5 GAF scores are Global Assessment of Functioning scores that measure how a person’s

psychological symptoms impact their daily lives. A functional capacity evaluation is an evaluation

of a person’s physical capacity in relation to a job’s demands, often expressed in ability to lift, carry,

push/pull, and balance, as well as an assessment of fine motor skills and cardiovascular tolerance.

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explanation of why such material or information is necessary; and

(4) Appropriate information as to the steps to be taken if the participant

or beneficiary wishes to submit his or her claim for review.” 29 C.F.R.

§ 2560.503-1(f).

Booton, 110 F.3d at 1463. Here, in its February 5, 2020 denial, Dearborn addressed

these requirements, including the specific post-August 2019 medical evidence it

required, but Plaintiff, represented by apt counsel, failed to submit it. Instead, almost

a full year later, on February 3, 2021, Plaintiff’s counsel sent the appeal letter to

Dearborn and, despite having been advised of the need for these specific records, no

such records were provided. The records Plaintiff did provide were insufficient.

1. Updated Medical Records Provided by Plaintiff Did Not

Satisfy His Burden

The materials sent by counsel do not establish continuing total disability. (See

1543-46 (counsel’s letter to Dearborn), 1555-1556 (Pltf. Stmt.), 1557-1559 (Dr.

Carlson), 1560 (Dr. Hager), 1562 (Unum approval letter noting the end of the

maximum benefit period in February 2027 and advising regarding the necessity of

periodic review but otherwise not assigning an end date to Plaintiff’s long-term

disability benefits).)

The letter from Plaintiff’s psychiatrist, Dr. Hager, did not include any office

notes showing recent treatment of Plaintiff. Instead, Dr. Hager explained that a past

diagnosis nominally referred to as “mild” should be considered “mild” only in a

relative sense, and that even a “mild” neurocognitive disorder can be disabling. Dr.

Hager implied he could not provide a full update due to constraints on the release of

information placed by Plaintiff and/or Plaintiff’s counsel. Importantly, Dr. Hager

refers pointedly to Plaintiff’s functioning as related to his previous level of

employment. (1560 (noting that “the presence . . . a neurocognitive disorder . . . was

likely to prohibit him from functioning at his previous level of employment”)

(emphasis added).) But in light of the “any occupation” definition at issue,

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Dr. Hager’s express reference to Plaintiff’s previous level of employment is unhelpful

to Plaintiff’s claim. Dr. Hager does opine that work-related stress can contribute to a

finding that Plaintiff is disabled, but this observation is insufficient to establish that

Plaintiff meets the definition of total disability under the “any occupation” definition.

The letter from Plaintiff’s primary care physician, Dr. Carlson, likewise did not

provide any office notes suggesting recent treatment of Plaintiff. Dr. Carlson outlined

a number of obstacles Plaintiff would face if he returned to work, but she stopped

short of identifying the scope of debilitating effects of his neurocognitive and physical

conditions that would prevent Plaintiff from undertaking employment under the “any

occupation” standard. Moreover, although Plaintiff implies that Dr. Carlson’s letter

should be read as an updated functional capacity evaluation, it is not. (See Pltf. Op.

Brief at 7-8.) In his opening brief, Plaintiff discusses a 2016 functional capacity

evaluation by Dr. Williams, authored five years before the appeal, and Plaintiff

characterizes Dr. Carlson’s letter as an “update” to that functional capacity evaluation.

However, although Dr. Carlson indeed stated that her letter “serve[d] to update”

Dr. Williams’s 2016 report, it is clearly insufficiently detailed to serve as an

“updated” functional capacity evaluation. Instead, she defers identification of specific

limits on Plaintiff’s functionality to an occupational therapist. Specifically, in her

letter, Dr. Carlson expressly disavows any opinion as to “specific limitations as to

sitting, standing, walking, lifting, and manual dexterity,” stating that such an

assessment should be conducted by one specialized in occupational therapy. (1558.)

Overall, although Dr. Carlson’s letter is supportive of Plaintiff’s claim, it does not

establish the level of total disability required under the “any occupation” standard.

2. Plaintiff’s October 2020 Statement Did Not Satisfy His Burden

of Proof

It is clear from the denial letter that Dearborn considered Plaintiff’s October

2020 statement, but found Plaintiff’s subjective account of his symptoms to be at odds

with the medical evidence of record. Notably, there is a lack of office notes or

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treatment notes beyond 2020, and this is a basis for rejecting Plaintiff’s statements as

being inconsistent with the medical evidence of record for the relevant time period.

Plaintiff argues that Dearborn’s litigation position is at odds with its denial

letters in that Dearborn’s file reviewers did not attack the credibility of Plaintiff and

his doctors, but in litigation, Dearborn does. (See Pltf. Resp. Br. at 3-4 (relying on

Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 905-06 (9th Cir. 2016)); see also Doc.

56, Pltf. Supp’l Authority (relying on Collier).) The Court disagrees. Although

Dearborn’s denial letter did not expressly reject Plaintiff’s subjective account of his

symptoms by attacking Plaintiff’s credibility, neither did Dearborn rely on Plaintiff’s

subjective account. Instead, Dearborn relied on the analyses of its medical file

reviewers, who set forth reasons, found in the medical evidence of record, for

rejecting Plaintiff’s subjective reports. (See 1669-1670.)

Plaintiff argues that office notes are not meant to document disability; they are

meant to facilitate treatment. Plaintiff relies on Orn v. Astrue, 495 F.3d 625, 634 (9th

Cir. 2007), which notes that “[t]he primary function of medical records is to promote

communication and recordkeeping for health care personnel—not to provide evidence

for disability determinations.” Although this is no doubt true, treatment notes provide

contemporaneous descriptions of a patient’s symptoms and concerns, as well as the

treatment chosen by the patient and doctor to address those symptoms and concerns.

As such, they are evidence of a patient’s diagnoses, concerns, symptomology, and

treatment. To be clear, a claimant’s subjective statements about his or her symptoms

and limitations, without more, can be reliable evidence of disability. Such statements

tend to be more reliable when supported by contemporaneous office notes or treatment

notes. And although not all symptoms and limitations can be objectively measured,

when subjective reports are corroborated by objective data, the subjective reports are

more reliable still. The Court’s role here is to determine whether Dearborn’s decision

is supported by the record notwithstanding Plaintiff’s subjective account of his

symptoms. See Collier, 53 F.4th at 1182.

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In his statement, Plaintiff reported the following: that he’s not been able to

drive since 2013, that his spouse quit his job to take care of him full time in 2014 due

to his cognitive decline; that “since 2012, [he has] lost all control of [his] bowels and

bladder”; that he has frequent falls from peripheral neuropathy and has “pain at a level

6 of 10 on most days;” and that he also has severe outbreaks of psoriasis. These

subjective complaints are not supported by contemporaneous office notes for the

relevant time period.

Although there are no medical records from the relevant time period, one issue

discussed by Plaintiff does appear consistently throughout Plaintiff’s medical history.

Plaintiff has reported chronic and unpredictable diarrhea, but the severity of this

condition is not documented at the level complained of by Plaintiff in his October

2020 statement, and the record instead reflects that the problem was more pronounced

at some times than it was at others. Some notes reflect the problem was not severe or

was not severe at the time the notes were made. (See, e.g., 85 (stools solid since

beginning acupuncture, noted 07/25/2016), 131 & 135 (“occasional diarrhea” and

“chronic diarrhea remains unchanged,” noted 09/19/17), 179 (no nausea/vomiting

/diarrhea, noted 02/17/2017), 916 “negative for . . . diarrhea,” noted 11/16/18), 781

(no diarrhea, noted 11/28/18), 876 “negative for . . . diarrhea,” noted 07/26/19). In

contrast, the diarrhea is noted to be a greater problem at other times, and those reports

generally support for Dearborn’s contention that the complaints reference more severe

diarrhea when made in connection with with Plaintiff’s applications for disability

benefits. (See, e.g., 1451 (“I wet my pants at least once per day . . . I poop my pants at

least 2x,” from a 04/05/13 statement to doctor administering neuropsychological

testing), 1531 (“Diarrhea (diagnosed as HIV enteropathy by Dr Anton, needs

followup,” noted on 02/24/15), 1332 (“HIV-related enteropathy” on “PROBLEM

LIST” from 12/14/2015), 1549 (diarrhea lasting one month or longer, noted on

03/04/2016 on Social Security form), 220 (“He is requesting disability on the basis of

persistent neuropathy, urinary incontinence, diarrhea (4-8 per day)” noted on 03/4/16),

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1267 (note from 07/13/17 “He continues to have diarrhea approximately 8 times a day

due to his HIV enteropathy. He is therefore unable to sit for more than about 2 hours

at a time. This would make it extremely difficult to sustain gainful employment.’”’),

1466 (on form seeking life insurance premium waiver, “surprise bowel issues about

every 2 hours” noted on 08/21/2017).) In short, Plaintiff's emphatic statements in

October 2020 regarding his chronic and consistent diarrhea do not match the medical

evidence of record, which reflects that the condition was at times asymptomatic and

which does not reflect the dramatic, life-altering bowel incontinence described by

Plaintiff in his statement.

In the end, notwithstanding his personal statement, Plaintiff failed to support his

October 2020 statement with contemporaneous treatment records beyond June 2019.

Therefore, the Court concludes that Dearborn’s determination that Plaintiff failed to

establish he continued to meet the definition of totally disabled, and its consequent

decision to discontinue Plaintiffs life insurance premium waiver, is supported by the

record.

IV. CONCLUSION

As set forth herein, the Court concludes that Dearborn properly discontinued

Plaintiff's life insurance premium waiver. Dearborn shall prepare and lodge a

proposed judgment within seven days of the entry of this Order. Any objections to the

form of the judgment must be filed within seven days thereafter.

The Court notes that although Defendants are jointly represented, the trial briefs

were filed on behalf of Defendant Dearborn only. The parties are directed to address

the status of Defendant Amgen, Inc. Life Insurance Plan.

IT IS SO ORDERED.

DATED: January 26, 2023

AY

United States District Judge

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