Doe V. Prudential Insurance Company: Mental Limitation Does Not Apply

Case Name: John Doe v. Prudential Insurance Company of America, et al.

Court: United States District Court for the Central District of California.

Date of Decision: March 27, 2017.

Type of Claim: Long Term Disability under the Employee Retirement Income Security Act of 1974 (“ERISA”).

Insurance Company: Prudential Insurance Company of America (hereinafter “Prudential”).

Claimant’s Employer: William Morris Endeavor Entertainment, LLC.

Claimant’s Occupation / Job Position: Head of Commercial Division. In that position, Plaintiff managed approximately 30 people and ran his own department as a talent agent. His job included “coupling high profile artists to brands and handling and managing talent.”

The Department of Labor characterizes a talent agent as a demanding profession that requires superior cognitive abilities. A talent agent confers with clients to develop career strategies, develops contacts with others who can advance the clients’ careers and provide information about business opportunities, promotes clients to those who might hire them, negotiates contracts for clients, and manages clients’ business affairs.

The ability to process, remember, and act on these exchanges in an unstructured, highly-competitive, and time-sensitive work context is essential to successfully performing the job.

These activities require the ability to perform certain cognitive abilities at a very high level, including excellent oral comprehension and expression, high problem sensitivity (i.e., the ability to identify problems and solve them), and excellent written comprehension and expression.

Disabilities: Depression, anxiety, HIV, asthma, migraines, hypertension, bundle branch block, and osteoporosis.

Definition of Disability: Under the Plan’s LTD Coverage, a participant is entitled to monthly disability benefits when they are “totally disabled,” which is defined as being “unable to perform with reasonable continuity the substantial and material acts necessary to pursue your usual occupation” due to “sickness or injury.” “Substantial and material acts” means the “important tasks, functions and operations generally required by employers from those engaged in your usual occupation that cannot be reasonably omitted or modified.”

Other Key Policy Provisions/Limitations: The 2009 Certificate limits to 24 months LTD benefits for disabilities that “are due in whole or part to mental illness” (“mental illness limitation”).

The 2009 Certificate defines “mental illness” as follows: “Mental illness means a psychiatric or psychological condition regardless of cause. Mental illness includes but is not limited to schizophrenia, depression, manic depressive or bipolar illness, anxiety, somatization, substance related disorders and/or adjustment disorders or other conditions. These conditions are usually treated by a mental health provider or other qualified provider using psychotherapy, psychotropic drugs, or other similar methods of treatment as standardly accepted in the practice of medicine.”

The 2009 Certificate provides that the mental illness limitation will not apply
“to dementia if it is a result of . . . viral infection.”

Benefits Paid? Yes, and terminated after 24 months.

Basis For Denial / Termination of Benefits: Application of 24 month mental health limitation. Prudential explained that the medical records contained in the claim file, in addition to the various reports received, did not support a physical condition that limited Plaintiff from his occupation or required medically necessary restrictions in the performance of that profession. Additionally, there was no evidence of a significant cognitive impairment or any neurological contribution to Plaintiff’s perceived cognitive deficits.

Thereafter, Plaintiff twice appealed Prudential’s decision to terminate his
benefits. He argued that his “declining mental health and cognitive performance ha[d] been caused by his HIV disease and co-morbid conditions” and “ultimately ha[d] a
physical etiology.” Prudential upheld its decision, and Plaintiff filed a lawsuit in Federal Court to enforce his rights.

Procedural history: 
On April 12, 2011, Plaintiff filed a claim for LTD benefits. Plaintiff stated that he was “unable to work as a result of HIV infections, HIV related pain and fatigue, and related medical conditions including osteoporosis and severe depression.” In response to the question “How does this condition interfere with your ability to perform your job?” Plaintiff stated: “My HIV infection, pain, fatigue, osteoporosis, and severe depression cause pain and fatigue and severely disrupt my ability to sustain my focus and concentration for significant periods of time. Due to my inability to sustain focus and concentration, I am unable to perform the essential tasks of my job on a persistent and reliable basis.”

On July 8, 2011, Prudential approved Plaintiff’s claim for LTD benefits beginning July 11, 2011 through August 31, 2011 based on his behavioral health conditions related to his depression and anxiety, but determined that his conditions related to HIV, asthma, ocular migraines, hypertension, bundle branch block and osteoporosis were not disabling. Prudential also advised Plaintiff of the 24-month mental illness limitation.

Other important factors:

Key Physician Opinions: The doctors’ reports Plaintiff submitted to support his initial claim do focus all but exclusively on the debilitating psychological and cognitive effects of Plaintiff’s depression. But, neuropsychological evaluations obtained thereafter show that Plaintiff suffers from cognitive deficiencies that may be caused by brain damage.

Dr. Cohan, an HIV specialist, has been Plaintiff’s treating physician since May 2012; he provided a letter dated August 6, 2013, in response to Prudential’s termination of Plaintiff’s claim. Dr. Cohan stated that Plaintiff is disabled by multiple factors directly related to his HIV infection, including chronic fatigue and cognitive dysfunction, and that this is exacerbated by other factors such as lumbar disc disease and radiculopathy.

Dr. Cohan stated that Plaintiff’s cognitive functioning is impaired such that he cannot sustain his focus and concentration over an eight hour day, and that “his problems in this regard are caused and contributed to by his HIV disease, fatigue, chronic pain and nausea.”

In June 2014, Plaintiff underwent a second neuropsychological evaluation. This evaluation was conducted by Dr. Perrillo and included two days of comprehensive neuropsychological and psychological testing conducted by Perrillo, and Perrillo’s review of Dr. Alfano’s 2012 test, including Alfano’s raw data and report. Dr. Perrillo reported that both Alfano’s 2012 tests and his 2014 tests showed that Plaintiff’s “neuropsychological results are globally moderately abnormal with major changes noted from his estimated consolidated (premorbid) predicted abilities.”

Dr. Fiano, a neuropsychologist, prepared her report after reviewing the doctors’ reports submitted with Plaintiff’s initial claim, the follow-up reports, and most importantly Dr. Alfano’s 2012 report (but not the raw test data itself) and Dr. Perrillo’s 2014 test data and report. In her report, Dr. Fiano summarized the other doctors’ findings and then provided her evaluation in response to specific questions Prudential asked.

As to whether Plaintiff has “any cognitive impairments from July 11, 2013 forward,” (question 1) Fiano answered “Yes,” and explained that Dr. Perrillo’s testing “documented areas of relative impairment with some areas of absolute impairment.” As to whether Plaintiff has “any medically necessary restrictions and / or limitations from any cognitive symptoms from July 11, 2013 forward” (question 2), Fiano answered “Yes . . . [Plaintiff] would be limited by the cognitive symptoms described in the previous response.” To whether Plaintiff’s cognitive symptoms would restrict or limit his ability to perform general work tasks including computer work, communication, working with others, concentrating, focusing, or sustaining full-time work activity (question 3), Fiano indicated that Plaintiff had some limitations in some of these areas, but that there was no strong evidence of limitations in other areas.

As to whether the record supports a neurological etiology of Plaintiff’s cognitive symptoms (question 8), Fiano responded that there are “multiple potential factors influencing functioning.” She noted that “it is reasonable to conclude that mood symptoms do, to some extent, impact functioning of cognitive symptoms . . . [h]owever, mood symptoms alone are not judged to explain the overall pattern of scores in this case.” Plaintiff’s scores “would not be explainable by emotional factors alone” and his “profile does not strongly correlate with other specific conditions, but does correlate more highly with neurological etiologies (such as vascular disease, hypertension) than with depression, where there is virtually no correlation.” She also said that while mild to moderate depression would not impact test performance, severe depression could impact test behaviors. So, she concluded that “a combination of etiologies (neurological and psychological) is considered to have produced the most recent [2014] test data.”

Finally, as to whether the record shows that other factors like psychological condition, substance abuse, or medications contribute to Plaintiff’s cognitive symptoms (question 9), Fiano responded that Plaintiff’s “psychological condition plays at least a partially contributing role in overall functioning, including some aspects of cognitive functioning.” (AR 30.) But she also stated that Plaintiff’s “somatic focus [] as well as marked levels of depression and distress . . . can[alone] explain all of the low scores, they would be expected to impact performance on tasks when the claimant was emotionally liable and less able to sustain focus.” She states that this was evident during Dr. Alfano’s examination in 2012, and she also believed such factors influenced Plaintiff’s performance on Dr. Perrillo’s exam.

Thus, even if the initial doctors’ opinions can reasonably support only a mental health etiology, subsequent reports show that there may be a physical etiology.

Issue(s): It is not disputed that Plaintiff has problems with attention, memory, focus, and executive function that prevent him from performing his job. Nor is it disputed that Plaintiff is “disabled” within the meaning of the Plan. Plaintiff has struggled with depression and anxiety for years. Prudential determined that Plaintiff’s physical health conditions were not disabling. Accordingly, Prudential applied the mental health limitation and terminated his benefits after 24 months. Plaintiff argues that his disability has a physiological cause – in particular, brain damage likely resulting from HIV – and that therefore Prudential should not have applied the mental health limitation. Plaintiff seeks an order reinstating his benefits retroactively and prospectively, among other relief.

Holdings: Here, the meaning of the clause “due in whole or part to mental illness” is not self-evident. But other courts have construed similar mental illness limitations to require “but-for” causation: that the limitation applies only if a mental health condition is a “but-for” cause of the claimant’s disability, such that if the claimant’s physical condition would be independently disabling, then the mental health limitation does not apply. In Krolnik v. Prudential Ins. Co. of Am., 570 F.3d 841 (7th Cir. 2009), the Seventh Circuit addressed a limitation that applies when the disability “is caused even in part by a mental illness.” Krolnik, 570 F.3d at 842. The Court stated that “if Krolnik’s limitations today are entirely physical (or if physical problems disable him no matter what his mental state), then benefits are available under this policy.” Krolnik, 570 F.3d at 844 (emphasis added). In George v. Reliance Standard Life Ins. Co., 776 F.3d 349 (5th Cir. 2015), the Court construed “ ‘caused by or contributed to by’ . . . to exclude coverage only when the claimant’s physical disability was insufficient to render him totally disabled. In other words . . . [if] the mental disability is a but-for cause of the total disability.” George, 776 F.3d at 355-356. In view of the doctrine of contra preferentum, and consistent with the above cases, this Court construes the limitation here as applying only if Plaintiff’s mental illness was a but-for cause of his disability.

Synthesizing all of the foregoing, Plaintiff’s two neuropsychological evaluations show that he suffered disabling cognitive impairments that have a physical etiology. These impairments are not attributable to mental health issues. For many years until 2011, Plaintiff coped with major depression and functioned at a very high cognitive level. By 2011, he complained of cognitive deficits, along with other physical and psychological problems. At the time, Plaintiff’s doctors focused on Plaintiff’s familiar, long-standing history of depression – and rightly so, as that appeared to be the cause of his most acute distress – and, accordingly, their reports to Prudential established a mental health basis for his disability.

Significantly, the extent of Plaintiff’s reported cognitive deficits could not be established by the doctors he was already seeing; he needed neuropsychological evaluations for that. Dr. Osinubi stated as much in March 2012, opining that Plaintiff’s medical records did not establish that he had a disabling physical condition, and noting that neuropsychological testing would be necessary to better evaluate Plaintiff’s cognitive difficulties.

The two neuropsychological tests that followed establish that Plaintiff suffered cognitive deficits that are not attributable to his psychological condition but instead have a physiological etiology. Both Drs. Perrillo and Fiano opined that the tests show that Plaintiff suffered brain damage, in particular, damage to his brain’s white matter most likely caused by HIV. Furthermore, both stated that psychological factors do not influence the results of neuropsychological testing, and there is no dispute that both tests were demonstrated to be valid – that is, Plaintiff wasn’t malingering, giving poor effort, or otherwise performing so as to manipulate the tests. Accordingly, Plaintiff’s psychological condition did not cause the disabling deficits reflected on those tests. Consistent with the opinions of Drs. Perrillo and Fiano, the Court finds that brain damage stemming from HIV is the most likely cause of Plaintiff’s disabling cognitive deficiencies.

The Court also finds that brain damage stemming from HIV is the but-for cause of Plaintiff’s disability. Plaintiff experienced severe depression for decades and functioned at a high level despite it. Then, in 2011, Plaintiff began complaining of the cognitive difficulties that disabled him.

Noteworthy court comments:

Summary: Resolving this issue is particularly difficult because Plaintiff’s disabling symptoms are cognitive problems that are not physically visible, and they may have either a psychological etiology or a physical etiology, or a combination of both. In sum, the record contains evidence that could arguably support a determination either way. However, after carefully considering all of the evidence, the Court finds that Plaintiff’s disability was not “due in whole or part to mental illness” and that Prudential should not have applied the mental illness limitation.

“Because Plaintiff’s physical condition (brain damage caused by HIV) is the but-for cause of his disabling cognitive impairments, his disability is not “due in whole or part to mental illness.” Therefore, the mental illness limitation does not apply, and Prudential wrongfully terminated Plaintiff’s LTD benefits.

Disclaimer: This was not a case handled by disability attorney Nick A. Ortiz. The court case is summarized here to give readers a better understanding of how Federal Courts decide long term disability ERISA claims.

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