Case Name: Cheri Parr v. First Reliance Standard Life Insurance Company
Court: U.S. District Court for the Northern District of California.
Date of Decision: March 31, 2017.
Type of Claim: Recovery of Long Term Disability benefits under the civil enforcement provision of the Employee Retirement Income Security Act of 1974 (“ERISA”). See 29 U.S.C. § 1132(a)(1)(B) (2012).
Insurance Company: First Reliance Standard Life Insurance Company.
Claimant’s Employer: Monster Media.
Claimant’s Occupation / Job Position: The Plaintiff was a former marketing and sales executive with approximately twenty years of experience. Before applying for disability benefits, she was West Coast Regional Sales Director for Monster Media.
Disabilities: She was diagnosed with Ehlers-Danlos Syndrome (“EDS”), a genetic tissue disorder, on May 9, 2013. The following list summarizes a number of key events in Plaintiff’s medical history, starting approximately five years prior to Plaintiff’s car accident:
- 2005 – degenerative patellofemoral arthritis in both knees with unstable patellae post multiple knee reconstructive surgeries (AR 1705); chronic anemia (AR 1705); intermittent solid food dysphagia (AR 1698); partial ventral herniation (AR 1698); carpal tunnel syndrome (AR 1698);
- 2007 – knee surgeries, right patella replacement (AR 1672; 1647); dysfunctional uterine bleeding (AR 1673); resection of uterine polyps (AR 1673);
- 2008 – severe low back pain with pain radiating down rear right leg down to right ankle (AR 1647); lumbar epidural for low back pain (AR 1647); sciatica flare-up prevented walking, treated with epidural (AR 1886); admitted to emergency room for migraine headache (AR 1885); re-onset of right-sided sciatica (AR 1647); bilateral hip bursitis; cortisone injection for right hip pain (AR 1647); hiatal hernia with reflux (AR 1648); heart murmur (AR 1649); bruising easily (AR 1648); deep vein thrombosis on right leg (AR 1648); cortisone and/or lidocaine injection in hips and back (AR 1642);
- 2009 – At least 3 epidural injections (AR 1882);
- 2010 – lumbar epidural steroid injection (AR 1610); back pain getting worse and sciatica traveling down right leg; difficulty walking (AR 1607-08);
- November 13, 2010 Car Accident: 3 rib fractures; concussion; aggravation of left knee misalignment; possible dislocations of shoulder as well as left knee and hip; cervical sprain; knee osteoarthritis; disk degeneration; pain in the neck, lower back, left knee, and left shoulder (AR 1555-89, 2152, 2208).
- 2011 – cracked 2 ribs when turning over in bed; began to experience radiation of pain down right arm, severe enough to preclude use of arm (AR 2206-07); left knee got worse; whole alignment abnormal with possible loose body within knee; significant arthritis in joint; using knee immobilizer; soft tissue infection in left buttock (AR 2204-05); bedridden for 4 days after trip (AR 2411); right knee got worse; several dislocations of right knee; experienced difficulty getting up from sitting position and in restroom needed someone to pull her up (AR 2410); left knee replacement; chronic pain syndrome; tachycardia (AR 1523-24, 1543-1545); left hip irritation; trip to ER—banged hip against cabinet and bruising and bleeding led to abscess infected by viridans streptococci (AR 1523-24; 2402); hives (AR 1457); snapping of iliotibial band (AR 2396); multiple epidurals for back pain (AR 1801, 2152-54); sciatica and back pain returned (AR 1512); right knee replacement (AR 1507-08);
- 2012 – pain on left side of face, trip to ER; diagnosed as Bell’s Palsy (AR 1453, 1501-02); tennis elbow (AR 1492); epidural for back pain (AR 2156); Achilles bursitis tendonitis (AR 2907); pain in right periscapular rhomboid region; cervical radiculopathy (AR 1474); ulnar neuritis (AR 1460);
• 2013 – lesion of ulnar nerve (AR 1842); torn ligaments in hand (AR 3812-13); aggravation of lower back problems with observed spasms (AR 3811); issues with skin healing; keloid scarring; blister-like lesions near back of throat; skin peeling off gums; Raynaud’s disease; EDS diagnosis (AR 3815-17); torn cartilage in hand and shoulder injury (AR 1832); severe gingivitis (27 cavities); knee pain; bursitis tendonitis (AR 3809; 3859-60);
- 2014 – left ankle pain from twisting injury; swelling and tenderness over ligaments (AR 2954-55); bacterial pharyngitis; abdominal wall hernia (AR 3770-72); left ankle fracture and fusing of small toes (AR 1784); bedridden for days; taking 2-3 hours each morning to get fingers moving; rheumatoid arthritis in lungs (AR 1813); right ankle pain (peroneal tendinitis) in the peroneal tendon area; swelling of both feet; neuropathy with burning on bottom of foot (AR 2961-62); right arm sprain (AR 1781); swelling of right foot with more tenderness of Achilles tendon; aggravation of existing cervical instability from EDS, with burning pain in neck (AR 2967-68); not healing from cuts and incisions (AR 2731).
The claimant’s records identify dozens of medical issues, including in part the following issues relating to chronic pain, fatigue, and cognitive dysfunction: TMJ (temporomandibular joint disorder); teeth grinding and morning pain; early morning migraines and headaches; resistance to oral anesthesia and interventions; tension headaches; neck pain causing dizziness and vertigo; vague pains throughout the body; back pain with sciatica; shoulder pain; fatigue when writing or computing for more than 15 minutes; muscle tightness and cramping; pain with pressure on the ribs, particularly after lying down for more than 10 minutes; pain in the sternum, such as when Plaintiff laughed, coughed, or breathed deeply; pain after walking more than 10 minutes; knee pain, swelling, and grinding; painful arthritis; pain in the low leg, arch, heel, and inside of ankle; musculoskeletal pain; tendon and muscle rupture pain; chronic pain syndrome; chronic joint and limb pain; nightly sleep interference from chronic pain; daytime sleepiness; atypical chest pain; near fainting episodes; difficulty thinking, anxiety, and nervousness; jaw pain; myofascial pain; insomnia; profound persistent fatigue; nausea; loss of concentration, foggy thinking, and poor memory; depression; and panic attacks.
Definition of Disability in the Plan/Policy: Under the policy, “Totally Disabled” or “Total Disability” mean, that as a result of an Injury or Sickness:
(1) during the Elimination Period and for the first 24 months for which a Monthly Benefit is payable, an Insured cannot perform the material duties of his/her Regular Occupation; . . .
(2) after a Monthly Benefit has been paid for 24 months, an Insured cannot perform the material duties of Any Occupation.
In addition, “the Insured [is] Totally Disabled if due to an Injury or Sickness he or she is capable of only performing the material duties on a part-time basis or part of the material duties on a Full-time basis.”
Other Key Definitions in the Plan/Policy:
“Full time” is defined under the policy as working at least 21 hours per week.
“Any Occupation” is defined as “an occupation normally performed in the national economy for which an Insured is reasonably suited based upon his/her education, training or experience.”
“Regular Occupation” is defined as “the occupation the Insured is routinely performing when Total Disability begins . . . look[ing] at the Insured’s occupation as it is normally performed in the national economy, and not the unique duties performed for a specific employer or a specific locale.”
Benefits Paid? Yes – under the “regular occupation” standard, but not under the “any occupation” standard thereafter.
Basis For Denial / Termination of Benefits: On March 14, 2014, Defendant terminated Plaintiff’s disability benefits on the ground that she was not “totally disabled” under the “any occupation” standard. In reaching that determination, Defendant reviewed “all of the information in [Plaintiff’s] claim file, including (but not limited to) the information provided by Drs. Lakshmi N. Madireddi, Michael Siegel, Richard Florio and Michael Stevens.”
In addition, Defendant relied on a vocational evaluation.
After the Plaintiff’s administrative appeal, the Defendant found that Dr. Barry’s report and addendum, and her claim file as a whole, supported its prior determination that Plaintiff was able to perform sedentary work, subject to certain restrictions.
Procedural history: Plaintiff appealed Defendant’s claim decision on September 29, 2014.
Other important factors:
Key Physician Opinions: As part of its review of Plaintiff’s qualification for disability benefits under the “any occupation” standard, Defendant obtained an “independent medical evaluation” (“IME”) from Dr. Lakshmi Madireddi, a specialist in physical medicine and rehabilitation. Dr. Madireddi reported having spent 4.5 hours reviewing Plaintiff’s medical records and 40 minutes examining Plaintiff on January 8, 2014.
Dr. Madireddi’s 18-page report listed and then summarized Plaintiff’s medical records; described her medical, surgical, and social history; and stated Dr. Madireddi’s diagnostic impressions, diagnoses, and conclusions. Dr. Madireddi concluded that Plaintiff “would likely be able to perform Sedentary work with the ability to change body positions.” She also determined that the following “restrictions and limitations” were “supported”:
At this time, the claimant has the ability to sit frequently, stand and walk occasionally, bend at the waist occasionally, no squatting at the knees, rare stair climbing, no ladder climbing, no kneeling, no crawling. She can occasionally use foot controls. She can occasionally drive as demonstrated, however she is on narcotics and care should be taken with driving. I believe she can lift sedentary 10 pounds occasionally. At this time, she can perform frequent simple grasping, reaching above mid-chest and at waist. She can frequently perform fine manipulation, feeling and tactile sensation essentially appears to be intact. Pushing and pulling to [sic] occasionally or less with both upper extremities. This claimant will have difficulty with traveling and carrying heavy suitcases.
Dr. Madireddi expected these restrictions and limitations to be “permanent” and that improvement was “unlikely”—with the caveat that Plaintiff might experience “less discomfort in her lower extremities” if she “los[t] up 70 pounds.” In an addendum to her report, Dr. Madireddi stated that Plaintiff had “consistent, full time work function at sedentary exertion noted on physical capacity form.”
On January 24, 2014, Dr. Michael Siegel, a neurologist who had been treating Plaintiff for over 15 years, submitted a letter in support of Plaintiff’s disability claim. Based upon physical and neurological examinations conducted by him and by other physicians, Plaintiff’s medical history, and imaging, Dr. Siegel opined that Plaintiff was “limited in daily activities and unable to work on a sustained basis.” Id. He described her symptoms as “includ[ing] extreme joint instability, chronic musculoskeletal pain, degenerative tissue disease, recurrent migraines, nerve pain, difficulty with memory and concentration, fatigue, and tachycardia.” He stated that she was on “round the clock narcotics” (including Oxycodone and morphine sulfate) and received quarterly steroid injections. Even so, Plaintiff reported “prolonged periods” of pain measured as high as 8 out of 10. Dr. Siegel concluded as follows:
In my opinion, Mrs. Parr is unable to resume any type of gainful employment due to both physical impairment and pain medication use at levels that interfere with critical thinking and decision-making. In addition, the burden of regular work will likely make her condition worse, accelerating the deterioration of joints. EDS is a progressive disorder, and while degeneration can be delayed with treatment, there is no cure.
On January 27, 2014, Dr. Richard Florio, an orthopedic and reconstructive surgeon whose medical office had been treating Plaintiff for over 10 years, submitted a letter in support of Plaintiff’s disability claim. AR 495-96. After describing Plaintiff’s EDS diagnosis, treatment, and recent medical history, Dr. Florio concluded as follows:
At this time, in my best professional judgment, Ms. Parr continues to be totally disabled and unable to do any substantial gainful employment. Not only is Mrs. Parr unable to work, but to do so would most likely cause further injury to her joints and exacerbate her condition. In addition, Ms. Parr is currently on round the clock narcotics for pain management (Oxycode 30 mg every 3 hours, Morphine Sulfate 20mg/ml – 2x day 2.5ml, and others) that would impair decision making abilities in a job setting. There is no cure for Ehlers-Danlos [Syndrome] and Ms. Parr’s condition will only deteriorate further over time.
Dr. Michael Stevens, a rheumatologist who had been treating Plaintiff since May 2013 and diagnosed her with EDS, filed a report regarding her disability claim on March 3, 2014. He stated that her joints were susceptible to injury, that she must not use her hands or fingers repetitively, and that that she must “avoid activities at work that involve repetitive movements and/or lifting > 10 lbs repetitively and/or prolonged postures.” Dr. Stevens stated that during a typical 8-hour workday Plaintiff could “occasionally” sit, stand, walk, bend/twist, squat, kneel, crouch, climb stars, reach, or lift 10 pounds or less. Dr. Stevens opined that Plaintiff could drive a vehicle “occasionally” if it had a manual transmission and “frequently” if it had an automatic transmission. The report also stated that Plaintiff was using a variety of medications: “1% Voltaren gel; Omneprazole; Demerol; Oxycodone (PN); Sumatriptan; MVI’s.”
In support of her appeal, the Plaintiff submitted the statements from two of Plaintiff’s treating physicians. Dr. Siegel, in a letter dated September 23, 2014, stated that he had reviewed Dr. Madireddi’s report and that he disagreed with her conclusion that Plaintiff was able to perform sedentary work. Dr. Siegel reiterated that he had treated Plaintiff for over fifteen years and that he was familiar with her medical conditions and the pain caused by them, and he briefly summarized Plaintiff’s medical history. He then described her current condition and limitations as follows:
[Plaintiff] will have to manage the pain caused by Ehler[s]-Danlos [Syndrome] for the rest of her life. She requires supportive bracing of her joints, and has been using a wheelchair for all activities requiring more than five minutes of walking. Currently, Ms. Parr is taking 10 mg of Oxycodone four times per day, 50 mg/day of Fentanyl (as far reduced in the past six months as her pain management expert believes is reasonable), and Ketorolac and Imitrex nasal sprays for pain from migraine headaches. Even when she regularly treats with these medications, Ms. Parr reports high levels of pain, and if she attempts any effort for more than two hours, she is often bed-ridden for days before she can recover. Her condition precludes her from returning to any job, sedentary or otherwise. Although Dr. Madireddi opines that Ms. Parr can change her “body positions” during the day, I believe that would not substantially alleviate Ms. Parr’s pain. Further injury to her joints could be fatal: her surgeon will have difficulty successfully suturing incisions.
To summarize, it is essential that Ms. Parr avoid further stress or damage to her joints in order to minimize complications from her Ehlers-Danlos Syndrome. I continue to support her ongoing total disability in light of her known diagnosis, clinical findings, and symptoms.
Dr. Florio stated in a letter dated September 17, 2014 that Plaintiff was “under [his] medical care and may not return to work.” He reaffirmed his opinions from two previous letters submitted in 2014. Id. Dr. Florio also stated that Plaintiff was “severely incapacitated with Ehler[s]-Danlos Syndrome” and “unable to work as this may cause exacerbation to her condition which include[s] tendon and ligament damage.” He confirmed that she was taking various narcotics for pain management and that EDS was a genetic disorder without any “cure or treatment.”
After Plaintiff appealed, Defendant obtained another “independent medical evaluation,” this time by Dr. N. Nichole Barry, who examined Plaintiff on November 4, 2014. In her report, Dr. Barry reviewed and summarized numerous documents from early 2011 to late 2014, primarily medical records, regarding Plaintiff’s medical conditions, symptoms, and treatments. Dr. Barry then answered a series of questions regarding “all medical conditions currently impacting [Plaintiff’s] status as of 10/06/13,” “[Plaintiff’s] appearance, attitude, and general demeanor,” the correlation between Dr. Barry’s “diagnoses” and her “clinical findings,” whether there was “medical data to substantiate the presence of complaints,” whether Plaintiff’s “complaints” were “consistent with [Dr. Barry’s] examination findings,” Plaintiff’s “current treatment plan,” Plaintiff’s “prognosis,” whether Plaintiff was “impair[ed] as of 10/06/13,” whether Plaintiff had “work capacity on a full time consistent basis,” the functional capacity of Plaintiff’s upper extremities, and Plaintiff’s current medications, as well as their possible side effects.
In her report, Dr. Barry concluded that Plaintiff “most likely has type 3 or hypermobility variant of EDS, also known as EDS-HM.” Dr. Barry considered Plaintiff to be too focused (“bordering on obsessed”) with her EDS diagnosis, given that “[h]er primary issue is back pain,” but immediately thereafter stated that Plaintiff’s back pain was “most likely” related to “her general hypermobility,” apparently in reference to EDS-HM. Dr. Barry found it “quite striking” that Plaintiff’s reported pain levels were “clearly far out of proportion” and “inconsistent” with the physical examination’s findings and Plaintiff’s “claimed mechanical issues.” Nonetheless, Dr. Barry also wrote that patients with EDS-HM “classically experience chronic widespread pain, almost neuropathic with hypersensitivity to light touch and burning.” Accordingly, Dr. Barry believed that the “major source of [Plaintiff’s] pain is, within a reasonable degree of medical probability, a chronic pain syndrome, not unlike fibromyalgia, rather than specific mechanical issues.” Dr. Barry believed that Plaintiff’s “prognosis is relatively good, if she starts to exercise and strengthen muscles” but that otherwise “her pain will increase and her joint laxity may become more of an issue.” Dr. Barry believed that Plaintiff’s ability to work for many years prior to her total knee replacements suggested that a regimen of strength training and weight loss could control her joint laxity. She contended that “hypermobility or EDS is not progressive” and that “ligaments do NOT become more lax over time.” (capitalization in original).
Ultimately, Dr. Barry concluded that Plaintiff could perform a “sedentary” job, and that during an eight-hour workday, she was “capable of exerting up to 10 pounds of force occasionally (1/3 of the workday) and/or a negligible amount of force frequently (1/3 to 2/3 of the workday) to lift, carry, push, pull, or otherwise move objects, including the human body.” That said, Plaintiff “should be allowed ten-minute stretch and/or walk around breaks every two hours and be allowed to move from sitting to standing as needed.” Dr. Barry concluded that no restrictions were supported for her upper extremities. While noting that Plaintiff was taking narcotics that “can cause drowsiness in some patients,” Dr. Barry concluded that Plaintiff was “unlikely” to experience side effects because she had “worked full time while taking narcotics for years prior to her claimed disability.” Earlier in the report, however, Dr. Barry summarized documents from Plaintiff’s treating physicians indicating that she had experienced side effects from pain medications, such as “dizziness and nausea,” the inability to “engage in the strategic thinking necessary for her job,” and impairment of “critical thinking and decision making.”
Issues: Whether, applying the de novo review standard, the Plaintiff has shown by a preponderance of the evidence that she is “totally disabled” under the “any occupation” standard.
Holdings: The Court concluded that the Plaintiff did establish by a preponderance of the evidence that she was “totally disabled” under the “any occupation” standard.
The most important considerations ultimately favoring Plaintiff are articulated below.
First, Plaintiff’s “total disability” under the “any occupation” standard is supported by the medical opinions of Dr. Siegel and Dr. Florio, who by January 2014 had both been treating Plaintiff for over a decade, and who rendered their opinions based upon the consideration of such factors as Plaintiff’s medical conditions, treatment, and history, as well information collected from physical and neurological examinations and imaging.
Relatedly, the Court finds that Defendant improperly discounted the importance of Plaintiff’s chronic pain, and its impact on her functional abilities. In denying Plaintiff’s appeal, Defendant stated that “the actual treatment notes of Dr. Siegel fail to provide any details regarding the severity and/or frequency of these episodes [of Plaintiff experiencing high levels of pain and being bed-ridden for days at a time], nor any specific reference to her abilities or lack thereof.” Defendant did not, however, point to any specific examples of Dr. Siegel’s treatment notes that were inconsistent with these episodes, nor did the Court find any among the nearly 500 pages of his treatment notes in the administrative record. In fact, various relatively recent treatment notes are consistent with Plaintiff having experienced debilitating pain. See, e.g., AR 1781 (September 16, 2014 notes documenting “shooting pain in arms/legs”); AR 1783 (February 14, 2014 notes stating “Joints in hands very painful”); AR 1787 (September 25, 2013 notes specifying “Pain Urgent”). Furthermore, in a letter to Dr. Siegel, dated April 2, 2014 and kept with her medical records, Plaintiff stated as follows: “I’m having a real problem controlling my pain. I’ve been in bed for three days and it’s still taking about two to three hours each morning to get my fingers moving. . . . [E]ven given the extra pain meds, my pain still runs around 7 or 8 most of the time. The arthritis in my hands and feet is so bad that I had to have my rings cut off, and often I can’t even get into my shoes.”
Other portions of the record also add support to the Court’s determination that Plaintiff is “totally disabled” under the “any occupation” standard. For example, as late as November 12, 2013 (over a month after the plan’s “any occupation” standard took effect), Defendant’s in-house nursing staff concluded that Plaintiff was unable to work based in part upon her reported “chronic pain with narcotic dependence,” noting that Plaintiff was on both oxycodone and Demerol and had “memory problems.” With respect to Plaintiff’s chronic pain, Dr. Barry, even while reaching a contrary conclusion to Drs. Siegel and Florio regarding Plaintiff’s capacity for work, recognized that patients with EDS-HM “classically experience chronic widespread pain, almost neuropathic with hypersensitivity to light touch and burning,” and believed that a “major source of [Plaintiff’s] pain is . . . a chronic pain syndrome, not unlike fibromyalgia.” In addition, while Dr. Barry expressed doubt that Plaintiff would experience side effects from her narcotic mediations, the underlying documents summarized by Dr. Barry showed that Plaintiff had a history of experiencing side effects from her pain medications, such as “dizziness and nausea,” the inability to “engage in the strategic thinking necessary for her job,” and impairment of her “critical thinking and decision making”. Dr. Barry’s addendum also summarized a host of medical issues relating chronic pain, severe fatigue, and impaired cognitive function (e.g., loss of concentration and memory).
Furthermore, the Court finds that the vocational evaluation relied upon by Defendant in reaching both the initial and final denial determinations under the “any occupation” standard was flawed. First, to identify the appropriate “restrictions and limitations” supported by Plaintiff’s medical decision, the vocational evaluation relied exclusively on the medical evaluation of Dr. Madireddi. However, Plaintiff has identified numerous misstatements and inaccuracies in Dr. Madireddi’s report, several of which are explicitly corroborated by the administrative record. For example, while the report states that Plaintiff had no surgeries following her car accident, see AR 398, this is contradicted by Dr. Florio’s medical records and his March 24, 2012 letter, by the report itself, and by the undisputed facts. And Dr. Madireddi repeatedly mischaracterized Plaintiff as possibly having Marchand syndrome, when Dr. Stevens had actually diagnosed her as possibly having Marfan’s syndrome, a condition overlapping with EDS. These and other errors raise significant questions regarding the report’s overall reliability. The report also failed to adequately address the cognitive side effects that Plaintiff’s heavy narcotic medications had on her ability to consistently perform a full-time job. Insofar as Dr. Madireddi consequently overestimated Plaintiff’s abilities, the vocational evaluation inaccurately concluded that Plaintiff was capable of full-time performance of ten sedentary occupations.
Moreover, Defendant’s physical surveillance of Plaintiff adds no support to the determination that she was not disabled under the “any occupation” standard. The Court recognizes that surveillance may properly be used to support a determination that a claimant is not disabled under the “any occupation” standard. See Pannebecker v. Liberty Life Assur. Co. of Boston, 542 F.3d 1213, 1218-19 (9th Cir. 2008) (holding that the record, including video surveillance of the plaintiff, supported the determination that the plaintiff could perform certain sedentary positions). But here, the sparse and outdated surveillance conducted by Defendant is not significantly probative as to whether Plaintiff is “totally disabled” under the “any occupation” standard. First, the surveillance was conducted on June 10, 11, and 14, 2012, nearly a year and a half before the “any occupation” standard took effect on October 6, 2013. Second, the surveillance reflects only modest and isolated activity: on June 10, Plaintiff was not observed engaging in any activity; on June 11, she was observed driving approximately 45 miles (split up into three shorter trips), walking a short distance, and sitting for approximately 75 minutes; and three days later, on June 14, she was observed walking to the curb and driving a short distance. Essentially, Plaintiff engaged in relatively short periods of modest activity on two occasions separated by three days. This is not significantly probative of Plaintiff’s ability to consistently work at least 21 hours per week.