United States District Court, D. Arizona
Neil V. Wake United States District Judge
Before the Court is Plaintiff’s Motion for Judgment on the Administrative Record (Doc. 34), Defendants’ Opposing Trial Brief (Doc. 35), and Plaintiff’s Reply to Defendants’ Opposing Trial Brief (Doc. 42). Plaintiff seeks judicial review of Defendant’s denial of long-term disability benefits effective August 24, 2012.
I. LEGAL STANDARD
This action is brought under the Employee Retirement Income Security Act of 1974 (“ERISA”), which permits a participant or beneficiary to bring a civil action to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan. 29 U.S.C. § 1132(a)(1)(B). The term “plan” includes any plan, fund, or program established or maintained by an employer for the purpose of providing its participants medical care or benefits in the event of sickness, accident, disability, death, or unemployment. Id. § 1002(1), (3).
“Every employee benefit plan shall be established and maintained pursuant to a written instrument” that “provides for one or more named fiduciaries who jointly or severally shall have authority to control and manage the operation and administration of the plan.” Id. § 1102(a)(1). Every plan must “describe any procedure under the plan for allocation of responsibilities for the operation and administration of the plan” and “provide a procedure for amending such plan, and for identifying the persons who have authority to amend the plan.” Id. § 1102(b). Further, every plan must “specify the basis on which payments are made to and from the plan.” Id. In addition, a plan may provide “that any person or group of persons may serve in more than one fiduciary capacity with respect to the plan (including service both as trustee and administrator).” Id. § 1102(c)(1).
The plan administrator must provide each participant a summary plan description, which is “sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.” Id. § 1022(a). The summary plan description also must “be written in a manner calculated to be understood by the average plan participant.” Id.
“A district court must review a plan administrator’s denial of benefits de novo ‘unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits.’” Prichard v. Metro. Life Ins. Co., 783 F.3d 1166, 1168-69 (9th Cir. 2015) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). The administrator bears the burden of proving the plan’s grant of discretionary authority. Id. at 1169. An administrator has discretion only where a plan document unambiguously grants the administrator discretionary authority to grant or deny benefits under the plan. Ingram v. Martin Marietta Long Term Disability Income Plan, 244 F.3d 1109, 1113-14 (9th Cir. 2001). “An allocation of decision-making authority to [the administrator] is not, without more, a grant of discretionary authority in making those decisions.” Id. at 1112-13. If the language only arguably confers discretion, it does not unambiguously confer discretion, and the court must review the administrator’s decision de novo. Feibush v. Integrated Device Tech., Inc., Employee Benefit Plan, 463 F.3d 880, 884 (9th Cir. 2006). When a court reviews a plan administrator’s decision de novo, the claimant bears the burden of proving he is entitled to benefits. Muniz v. AMEC Constr. Mgmt., 623 F.3d 1290, 1294 (9th Cir. 2010). The burden of proof remains with the claimant when disability benefits are terminated after an initial grant. Id.
Where a plan document unambiguously grants the administrator discretionary authority to grant or deny benefits under the plan, the court reviews the administrator’s decision for abuse of discretion. “A plan administrator abuses its discretion if it renders a decision without any explanation, construes provisions of the plan in a way that conflicts with the plain language of the plan, or fails to develop facts necessary to its determination.” Pacific Shores Hosp. v. United Behavioral Health, 764 F.3d 1030, 1042 (9th Cir. 2014). A plan administrator abuses its discretion if it relies on clearly erroneous findings of fact in its determination. Id.
Where the plan administrator both evaluates claims and pays benefits claims, a reviewing court should consider that structural conflict of interest as a factor, among many, in determining whether the plan administrator abused its discretion in denying benefits. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108, 116 (2008). A conflict may be given more weight where circumstances suggest a greater likelihood that it affected the benefits decision and less weight where the administrator has taken active steps to reduce potential bias and to promote accuracy. Id. at 117. In the absence of a conflict, the administrator’s decision can be upheld if it is grounded on any reasonable basis, but where the administrator is also the insurer, the abuse of discretion standard requires a more complex analysis. Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 630 (9th Cir. 2009). The analysis requires the court to consider numerous case-specific factors including, but not limited to, the extent to which a conflict of interest appears to have motivated an administrator’s decision. Id. The court may also consider the quality and quantity of medical evidence, whether the plan administrator required an in-person medical examination or relied on the review of existing medical records, and whether the administrator provided its independent experts with all of the relevant evidence. Id.
In assessing the effect of a conflict of interest, the court must view evidence of bias in the light most favorable to the claimant. Stephan v. Unum Life Ins. Co., 697 F.3d 917, 930 (9th Cir. 2012). The plan administrator bears the burden of proving that its decision was not improperly influenced by its dual role as administrator and insurer. Muniz, 623 F.3d at 1295. Regardless of whether an administrator’s conflict of interest is a factor, however, an abuse-of-discretion review requires consideration of all the circumstances. Pacific Shores Hosp., 764 F.3d at 1042.
II. FACTUAL BACKGROUND
Plaintiff was born and raised in Morocco where he worked as a chef. He may have had polio as a child. When he was 27 years old, he emigrated from Morocco and shortly thereafter began working for Marriott International Inc. as a chef. When Plaintiff was 36 years old, in approximately March 2009, he developed pain and swelling in his right foot. In October 2009, he became unable to continue working as a specialty restaurant chef, a job for which he was paid approximately $57, 500/year, because it required long periods of standing and walking, which resulted in swelling and pain in his right ankle and foot.
Marriott hired Plaintiff October 25, 2000. Marriott is the plan administrator of Defendant Marriott International Inc. Long-Term Disability Plan (the “Plan”). Defendant Aetna Life Insurance Company insures the Plan and is the claim administrator for the Plan. Plaintiff was a participant in the Plan as a result of his employment with Marriott.
The Plan’s long-term disability coverage pays a monthly benefit to an employee who is disabled and unable to work because of an illness, injury, or disabling pregnancy-related condition, after the first 182 days of a period of disability. Under the Plan’s test of disability, monthly benefits are payable for the first 24 months if the employee cannot perform the material duties of his “own occupation” solely because of an illness, injury, or disabling pregnancy-related condition and his earnings are 80% or less of his adjusted pre-disability earnings. The Plan defines “own occupation” as the occupation the employee is routinely performing when his period of disability begins, viewed as it is normally performed in the national economy.
The Plan’s test of disability changes from “own occupation” to “any occupation” after the first 24 months that monthly benefits are payable. After 24 months, the employee meets the Plan’s test of disability on any day that he is unable to work “at any reasonable occupation” solely because of an illness, injury, or disabling pregnancy-related condition. The Plan defines “reasonable occupation” as any gainful activity for which the employee is, or may reasonably become, fitted by education, training, or experience, and which results in, or can be expected to result in, an income of more than 60% of the employee’s adjusted pre-disability earnings.
Initially, Plaintiff received short-term disability benefits. Plaintiff’s first day absent from work was October 25, 2009, and his date of disability under the Plan was November 5, 2009. In September 2009, Plaintiff reported right foot pain and swelling that had begun approximately six months before. In February 2010, he had surgery to relieve tightness in his right calf and subsequently reported dramatic improvement with minor pain when walking. In March 2010, Plaintiff had surgery to increase the range of motion in his right ankle and subsequently reported pain-free range of motion in his right ankle. In April 2010, Plaintiff reported swelling in his right foot after standing on it for a long period of time. He returned to work, but after ten continuous hours of being on his feet, the swelling increased dramatically and was very painful. On May 4, 2010, Plaintiff was treated with a local block of the right common peroneal nerve, which significantly reduced, but did not eliminate, his right ankle pain.
Also on May 4, 2010, Plaintiff’s treating orthopedist Ralph N. Purcell, M.D., wrote to Aetna that on April 22, 2010, he advised Plaintiff not to work because of swelling and pain over his right tibia at the site of his surgery. Dr. Purcell said Plaintiff reported the swelling occurred after being on his feet for ten hours at work, but Plaintiff “had done extraordinarily well without any symptoms prior to his being on his feet for such a protracted period of time.” Dr. Purcell also stated that Plaintiff “was doing wonderfully postoperatively and his dramatic improvement postoperatively was the basis for his return to work.” He recommended ankle support for protracted weight bearing. In an Attending Physician Statement dated April 26, 2010, Dr. Purcell opined that Plaintiff was able to do sedentary work activity 8 hours/day, 5 days/week, but should do no prolonged standing and no pushing, pulling, or lifting. He attributed Plaintiff’s impairment to pain and swelling of the right ankle.
From May 8, 2010,  through August 23, 2012, Plaintiff received long-term disability benefits under the Plan’s “own occupation” test of disability, based on a determination that Plaintiff was unable to work as a specialty restaurant chef. On June 26, 2010, Aetna sent a letter to Plaintiff explaining that he was eligible to receive monthly benefits effective May 8, 2010, and continuing for up to 24 months as long as he remained disabled from his own occupation. The letter further explained that if he was still disabled from his own occupation and eligible for disability benefits on May 8, 2012, the Plan would require him to meet a more strict definition of disability. It informed Plaintiff that to qualify for monthly benefits, he would be required to provide medical evidence that he was unable to perform any reasonable occupation for which he was qualified or could become qualified as a result of his education, training, or experience. If he qualified for continuation of benefits, Aetna would periodically review his eligibility by requesting updated medical information from Plaintiff’s medical providers, independent physicians, or vocational specialists.
In July 2010, Plaintiff received peripheral nerve decompression and neurolysis of the right common peroneal nerve. In September 2010, Plaintiff underwent right hip arthroscopic surgery. In October 2010, he reported to Aetna that he was in a cast from his hip surgery and would have another surgery in December 2010. The record does not show that Plaintiff had surgery in December 2010.
In May 2011, an Aetna representative interviewed Plaintiff by telephone regarding his current status. Plaintiff reported experiencing a lot of pain in his right ankle that radiated to his back. He said he could not be on his feet more than 30 minutes and had difficulty sleeping. He said that his wife did most of the housework, but he was able to prepare meals and do home exercises. Plaintiff said that it had been about three months since his last office visits with his treating providers. The Aetna representative’s notes regarding the telephone interview do not indicate that Plaintiff had any difficulty communicating in English.
In June 2011, Plaintiff reported difficulty walking, swelling in his ankle, tingling near his toes, and radiating pain up his leg into his buttocks. He said any standing exacerbated his symptoms greatly and that he had recently received a burning treatment to his lower leg while in Morocco. In July 2011, MRIs of Plaintiff’s right knee, right hip, and lumbar/cervical spine and x-rays of lumbar spine and right hip were not clinically significant regarding his symptoms except for a new right hip labral tear. Plaintiff reported pain and swelling between his ankle and heel on his right foot.
On July 28, 2011, treating podiatrist Stephen L. Barrett, D.P.M., completed an Attending Physician Statement. Dr. Barrett opined that Plaintiff was able to do sedentary work, but unable to continuously stand/walk more than one hour at a time. He reported that Plaintiff had presented with swelling of the right ankle on July 25, 2011, and an MRI had been ordered. Dr. Barrett assessed Plaintiff as able to perform occasional climbing, crawling, kneeling, carrying, bending, twisting, standing, stooping, and walking. He assessed Plaintiff as able to perform continuous (5.1-8 hours/day) lifting, pulling, pushing, reaching above shoulder, and forward reaching while sedentary. Dr. Barrett said that Plaintiff could not drive because his prescribed pain medication could cause drowsiness.
On August 2, 2011, a clinical consultant for Aetna reviewed the medical records in support of Plaintiff’s claim. She concluded that the restrictions and limitations of no standing or walking for more than an hour at a time were supported and would likely be ongoing. She opined that the restrictions and limitations did not appear to preclude the performance of full-time sedentary work activities. The clinical consultant recommended confirming her opinion with Dr. Barrett and Dr. Purcell and obtaining updated medical records.
On September 27, 2011, Aetna’s vocational counselor spoke by telephone with Plaintiff, who said that his work history was limited to cooking. Plaintiff expressed interest in participating in vocational rehabilitation services to assist him in identifying alternate job goals, assess his interests and areas of strength, and discuss possible retraining and job placement options. That same day the vocational counselor completed a Transferable Skills Analysis based only on Plaintiff’s predicted sedentary work capacity, work history as a chef, and education consisting of one year of college. She did not find any sedentary occupations that were a “good” match for Plaintiff’s transferable skills. She concluded that the occupation of hotel sales representative was a “fair/limited” match for Plaintiff’s transferable skills because Plaintiff lacked any sales experience and his computer skills were limited. Although the vocational counselor had spoken with Plaintiff at least two times, she did not note any limitation in his ability to communicate in English.
On September 21, 2011, Plaintiff began treatment at the Arizona Center for Pain Relief and was seen by Brittany Jones, P.A., for pain of the low back, right hip, and right leg, which reportedly had occurred in an intermittent pattern for ten years. Pain medications were prescribed. On October 19, 2011, Plaintiff was seen by J. Julian Grove, M.D., of the Arizona Center for Pain Relief, who noted that Plaintiff had experienced significant relief and slight functional improvement, but also noted that Plaintiff reported no change in pain.
On October 28, 2011, Dr. Grove completed an Attending Physician Statement, in which he opined that Plaintiff had “no ability to work” and stated that “Patient has only been seen twice but he came in on a 0 work status.” Dr. Grove indicated that Plaintiff can never perform climbing, crawling, kneeling, lifting, pulling, pushing, reaching above shoulder, forward reaching, carrying, bending, or twisting. He further indicated that Plaintiff can occasionally perform sitting, standing, stooping, or walking. Dr. Grove also opined that Plaintiff can frequently carry 1-5 pounds, occasionally carry 6-20 pounds, and never carry more than 20 pounds. He identified Plaintiff’s primary diagnosis as lumbosacral neuritis and his secondary diagnosis as “pain in joint ankle/foot.” On November 30, 2011, an investigator interviewed Plaintiff at his home and reported that Plaintiff was wearing pajamas at 11:00 a.m. and sat with his right leg elevated on the sofa. Plaintiff reported that he does not often leave home and his wife does all of the household chores, shopping, and driving. On December 13, 2011, an investigator videotaped about two minutes of Plaintiff walking in his driveway, speaking with someone, returning to the residence, and driving away in a vehicle. The investigator noted that Plaintiff walked with a slight limp. The investigator followed Plaintiff driving for about 30 minutes. On December 14, 2011, the investigator observed Plaintiff driving the same vehicle with children in the back seat. On two other days, surveillance efforts were continued, but Plaintiff was not observed outside of or departing his home.
Plaintiff was seen by PA Brittany Jones of the Arizona Center for Pain Relief on November 16, 2011, December 15, 2011, and January 10, 2012, for routine medical follow up and pain medicine prescriptions.
In January 2012, Plaintiff underwent left knee ACL reconstruction. In a February 2012 follow-up visit, Plaintiff reported that he had no complaints with his left lower extremity, but his right knee, hip, and foot had been giving him “some problems.” He was progressing well with physical therapy and home exercises and was referred to a foot and ankle specialist, Dr. Michael Castro.
On March 6, 2012, Plaintiff told PA Brittany Jones that his knee was feeling well, but his altered gait had increased his right lower extremity pain. On April 4, 2012, Plaintiff appeared at Dr. Grove’s office, but the doctor was delayed and could not see Plaintiff. Medication refills were ordered and Plaintiff was directed to return in one month.
The record includes a facsimile of an Attending Physician Statement with Dr. Grove’s signature dated April 6, 2012. Except for the dates next to Dr. Grove’s signature, the two pages with signatures are identical-same handwriting, same comments, and same marginal notations-to the corresponding two pages of the Attending Physician Statement dated October 28, 2011. Both the October 28, 2011 statement and the April 6, 2012 statement include the handwritten comment that “Patient has only been seen twice but he came in on a 0 work status.” These pages with signatures both indicate that Plaintiff has “no ability to work” and is capable of working zero hours/day zero days/week. Instead of stating prescribed restrictions on work activities and an estimated return to work date, both statements say only that “Patient is not working.” The first pages of the statements, which describe diagnoses, medications, and office visit dates, are not identical and do not include a signature.
In March 2012, three months before the Plan’s test of disability would change from “own occupation” to “any reasonable occupation, ” Aetna began attempting to obtain updated medical records from Plaintiff’s treating physicians for clinical review by a nurse consultant. On May 8, 2012, after 24 months of long-term disability benefits, the test for evaluating Plaintiff’s claim changed from whether he was capable of performing the material duties of his “own occupation” to whether he could perform the material duties of “any reasonable occupation.” On May 8, 2012, after repeated requests, Aetna received the records requested from Dr. Grove and referred Plaintiff’s claim to a nurse consultant for a clinical review on May 9, 2012. On May 9, 2012, the nurse consultant reviewed clinical information from December 2011 through April 2012. She noted that Plaintiff appeared to be recovering well from left knee surgery, but continued to have chronic pain from his right knee and ankle. She noted that Dr. Grove opined that Plaintiff was unable to work. The nurse consultant opined that the current records supported finding functional impairment, but recommended obtaining updated medical records in about four months from pain management, orthopedics, and Dr. Castro, the foot/ankle specialist, if Plaintiff had been seen by him.
On June 1, 2012, an investigator observed Plaintiff leave his home alone, drive to a store where he met two men and entered the store with the men. He stood and talked to the men inside the store. After leaving the store, Plaintiff drove to a convenience store, entered, departed carrying items, and drove home. On June 2, 2012, the investigator observed Plaintiff drive to a bank, park the car, get out of the car, use the automatic teller machine, enter the bank, exit the bank, and drive home. On his way home, Plaintiff stopped several times in different parking lots and appeared to be texting on his cell phone.
On June 26, 2012, Aetna requested peer review of Plaintiff’s claim by Malcom McPhee, M.D., Board Certified in Physical Medicine and Rehabilitation, to assess the effect that any physical conditions would have on Plaintiff’s functionality for the period May 8, 2012, through May 7, 2013. Dr. McPhee reviewed the records provided, including operative notes, radiology reports, and office notes from February 2010 through April 2012. He reviewed the July 28, 2011 Attending Physician Statement by treating podiatrist Stephen L. Barrett, D.P.M., which stated that Plaintiff was capable of performing sedentary work, but unable to continuously stand/walk more than one hour at a time. He viewed the surveillance video from June 1 and 2, 2012. Dr. McPhee observed Plaintiff on June 1 walking from his car to a store “with an equal stride length and no limp while wearing flip flops.” He observed Plaintiff on June 2 walking from his car and back “without any observable gait difficulty.” Dr. McPhee noted that Plaintiff’s file did not include details of when he became infected with the polio virus, a detailed neurological examination, or a detailed neuromuscular exam of the lower right extremity. Nevertheless, Dr. McPhee found general evidence of right lower extremity atrophy, which would reasonably limit walking to an occasional basis and short distances. He further concluded it would be reasonable to limit Plaintiff’s standing to no more than a frequent basis for 30-60 minutes at a time followed by a brief five-minute break to sit.
Dr. McPhee’s peer review included peer-to-peer consultation. On July 2, 2012, he attempted to contact treating orthopedist Dr. Stacey McClure, who performed Plaintiff’s left knee arthroscopy in January 2012. Dr. McPhee spoke with Dr. McClure’s medical assistant, who indicated that Plaintiff’s left knee was fully functional and would not preclude work activity. Dr. McPhee also attempted to contact Dr. Grove and spoke with PA Brittany Jones, who had treated Plaintiff multiple times. She said that Plaintiff’s left leg and foot muscles were very functional, ...