Parr v. First Reliance Standard Life

Northern District of California, cand-4:2015-cv-01868

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING PLAINTIFFS {{41}} MOTION FOR JUDGMENT.

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6 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHERI PARR, Case No. 15-cv-01868-HSG 8 Plaintiff, ORDER GRANTING PLAINTIFF'S MOTION FOR JUDGMENT 9 v. Re: Dkt. No. 41 10 FIRST RELIANCE STANDARD LIFE INSURANCE COMPANY, 11 Defendant. 12 Northern District of California United States District Court 13 On April 14, 2015, Plaintiff Cheri Parr filed her complaint alleging five causes of action 14 against Defendant First Reliance Standard Life Insurance Company.1 Dkt. No. 1 ("Compl."). On 15 December 31, 2015, the parties filed a stipulation for dismissal of Plaintiff's Second, Fourth and 16 Fifth Causes of Action, Dkt. No. 31, which was granted by the Court on January 4, 2016, Dkt. No. 17 32. Pending before the Court is Plaintiff's motion for judgment pursuant to Federal Rule of Civil 18 Procedure 52. Dkt. No. 41 ("Mot."). Briefing on Plaintiff's motion for judgment was completed 19 on April 21, 2016. See Dkt. No. 46 ("Opp."); Dkt. No. 49 ("Reply"). Defendant subsequently 20 filed the administrative record under seal, including over 3,900 pages of documents and several 21 hours of video footage. See Dkt. Nos. 50-60 (administrative record); see also Dkt. No. 47 (order 22 granting stipulated motion to file administrative record under seal). On June 21, 2016, the Court 23 took Plaintiff's motion for judgment under submission. Dkt. No. 61.2 24 Although Plaintiff's motion originally sought judgment on both her First and Third Causes 25 of Action, the Court subsequently granted Defendant's motion for partial summary judgment as to 26 1 27 Plaintiff's complaint also listed twenty unnamed defendants. See Compl. ¶ 5 (listing "Does 1 through 20" as defendants). 2 28 The Court finds that this matter is appropriate for disposition without oral argument. See Civil L.R. 7-1(b). 6 1 Plaintiff's Third Cause of Action. Dkt. No. 62 (issued June 23, 2016). Therefore, Plaintiff's 2 motion for judgment has been narrowed to her First Cause of Action, which seeks recovery of 3 employee long-term disability benefits under the civil enforcement provision of the Employee 4 Retirement Income Security Act of 1974 ("ERISA"). See 29 U.S.C. § 1132(a)(1)(B) (2012); see 5 also Compl. ¶¶ 28-35. 6 Having carefully considered the papers, the administrative record, and the relevant legal 7 authorities, the Court hereby GRANTS Plaintiff's motion for judgment. 8 I. FINDINGS OF FACT3 9 Because the administrative record is voluminous, the Court focuses on the key facts upon 10 which it bases its conclusions. 11 A. Plaintiff's Medical History 12 Plaintiff is 54 years old. See AR 515 (stating date of birth). She was diagnosed with Northern District of California United States District Court 13 Ehlers-Danlos Syndrome ("EDS"), a genetic tissue disorder, on May 9, 2013. AR 2570, 3859, 14 3875-78. She has a long and complicated history of medical problems going back to childhood. 15 See, e.g., AR 3850 (summarizing surgery and major treatments since 1975); AR 2790-91 (portion 16 of letter from Plaintiff's mother, a registered nurse, discussing Plaintiff's medical problems as a 17 child). For example, she had already had at least a dozen knee surgeries by the age of 45. AR 18 1647. Plaintiff's medical issues substantially worsened after November 13, 2010, when she was 19 seriously injured during a car accident in which her vehicle went over the guard rail, flipped twice, 20 and landed upside down. See AR 1555-89, 2208, 3859. Plaintiff suffers from extreme joint 21 instability, chronic musculoskeletal pain, degenerative tissue disease, recurrent migraines, nerve 22 pain, difficulty with memory and concentration, fatigue, and tachycardia. AR 493. 23 The following list summarizes a number of key events in Plaintiff's medical history, 24 starting approximately five years prior to Plaintiff's car accident: 25  2005 - degenerative patellofemoral arthritis in both knees with unstable patellae post 26 27 3 To the extent that any findings of fact are included in the Conclusions of Law section, they shall 28 be deemed findings of fact, and to the extent that any conclusions of law are included in the Findings of Fact section, they shall be deemed conclusions of law. 2 6 1 multiple knee reconstructive surgeries (AR 1705); chronic anemia (AR 1705); intermittent 2 solid food dysphagia (AR 1698); partial ventral herniation (AR 1698); carpal tunnel 3 syndrome (AR 1698); 4  2007 - knee surgeries, right patella replacement (AR 1672; 1647); dysfunctional uterine 5 bleeding (AR 1673); resection of uterine polyps (AR 1673); 6  2008 - severe low back pain with pain radiating down rear right leg down to right ankle 7 (AR 1647); lumbar epidural for low back pain (AR 1647); sciatica flare-up prevented 8 walking, treated with epidural (AR 1886); admitted to emergency room for migraine 9 headache (AR 1885); re-onset of right-sided sciatica (AR 1647); bilateral hip bursitis; 10 cortisone injection for right hip pain (AR 1647); hiatal hernia with reflux (AR 1648); heart 11 murmur (AR 1649); bruising easily (AR 1648); deep vein thrombosis on right leg (AR 12 1648); cortisone and/or lidocaine injection in hips and back (AR 1642); Northern District of California United States District Court 13  2009 - At least 3 epidural injections (AR 1882); 14  2010 - lumbar epidural steroid injection (AR 1610); back pain getting worse and sciatica 15 traveling down right leg; difficulty walking (AR 1607-08); 16  November 13, 2010 Car Accident: 3 rib fractures; concussion; aggravation of left knee 17 misalignment; possible dislocations of shoulder as well as left knee and hip; cervical 18 sprain; knee osteoarthritis; disk degeneration; pain in the neck, lower back, left knee, and 19 left shoulder (AR 1555-89, 2152, 2208). 20  2011 - cracked 2 ribs when turning over in bed; began to experience radiation of pain down 21 right arm, severe enough to preclude use of arm (AR 2206-07); left knee got worse; whole 22 alignment abnormal with possible loose body within knee; significant arthritis in joint; 23 using knee immobilizer; soft tissue infection in left buttock (AR 2204-05); bedridden for 4 24 days after trip (AR 2411); right knee got worse; several dislocations of right knee; 25 experienced difficulty getting up from sitting position and in restroom needed someone to 26 pull her up (AR 2410); left knee replacement; chronic pain syndrome; tachycardia (AR 27 1523-24, 1543-1545); left hip irritation; trip to ER—banged hip against cabinet and 28 bruising and bleeding led to abscess infected by viridans streptococci (AR 1523-24; 2402); 3 6 1 hives (AR 1457); snapping of iliotibial band (AR 2396); multiple epidurals for back pain 2 (AR 1801, 2152-54); sciatica and back pain returned (AR 1512); right knee replacement 3 (AR 1507-08); 4  2012 - pain on left side of face, trip to ER; diagnosed as Bell's Palsy (AR 1453, 1501-02); 5 tennis elbow (AR 1492); epidural for back pain (AR 2156); Achilles bursitis tendonitis 6 (AR 2907); pain in right periscapular rhomboid region; cervical radiculopathy (AR 1474); 7 ulnar neuritis (AR 1460); 8  2013 - lesion of ulnar nerve (AR 1842); torn ligaments in hand (AR 3812-13); aggravation 9 of lower back problems with observed spasms (AR 3811); issues with skin healing; keloid 10 scarring; blister-like lesions near back of throat; skin peeling off gums; Raynaud's disease; 11 EDS diagnosis (AR 3815-17); torn cartilage in hand and shoulder injury (AR 1832); 12 severe gingivitis (27 cavities); knee pain; bursitis tendonitis (AR 3809; 3859-60); Northern District of California United States District Court 13  2014 - left ankle pain from twisting injury; swelling and tenderness over ligaments (AR 14 2954-55); bacterial pharyngitis; abdominal wall hernia (AR 3770-72); left ankle fracture 15 and fusing of small toes (AR 1784); bedridden for days; taking 2-3 hours each morning to 16 get fingers moving; rheumatoid arthritis in lungs (AR 1813); right ankle pain (peroneal 17 tendinitis) in the peroneal tendon area; swelling of both feet; neuropathy with burning on 18 bottom of foot (AR 2961-62); right arm sprain (AR 1781); swelling of right foot with more 19 tenderness of Achilles tendon; aggravation of existing cervical instability from EDS, with 20 burning pain in neck (AR 2967-68); not healing from cuts and incisions (AR 2731). 21 B. The Disability Policy 22 Plaintiff is a former marketing and sales executive with approximately twenty years of 23 experience. AR 905. Before applying for disability benefits, she was West Coast Regional Sales 24 Director for Monster Media ("Monster"). Id. As a Monster employee, Plaintiff participated in a 25 group long-term disability insurance plan that was governed by ERISA, sponsored by Monster 26 Worldwide, Inc., and insured by Defendant. See AR 1. Under the policy, "Totally Disabled" or 27 "Total Disability" mean, that as a result of an Injury or Sickness: 28 (1) during the Elimination Period and for the first 24 months for 4 6 which a Monthly Benefit is payable, an Insured cannot perform the 1 material duties of his/her Regular Occupation; . . . (2) after a Monthly Benefit has been paid for 24 months, an Insured 2 cannot perform the material duties of Any Occupation. 3 AR 12. In addition, "the Insured [is] Totally Disabled if due to an Injury or Sickness he or she is 4 capable of only performing the material duties on a part-time basis or part of the material duties on 5 a Full-time basis." Id. "Full time" is defined under the policy as working at least 21 hours per 6 week. AR 11. "Any Occupation" is defined as "an occupation normally performed in the national 7 economy for which an Insured is reasonably suited based upon his/her education, training or 8 experience." Id. "Regular Occupation" is defined as "the occupation the Insured is routinely 9 performing when Total Disability begins. . . look[ing] at the Insured's occupation as it is normally 10 performed in the national economy, and not the unique duties performed for a specific employer or 11 a specific locale." AR 12. 12 Northern District of California Plaintiff's Claim for Disability Benefits United States District Court C. 13 i. Defendant Awarded Plaintiff Disability Benefits under the "Regular 14 Occupation" Standard 15 On October 14, 2011, Plaintiff submitted a claim for disability benefits under Defendant's 16 policy. AR 33-34. On October 17, 2011, Defendant's vocational expert concluded that Plaintiff's 17 regular occupation was "Manager, Sales" (DOT Code 163.167-018), a "sedentary" occupation. 18 AR 665-67. On November 28, 2011, Defendant approved payment of benefits.4 AR 753-54. The 19 approval letter stated that her disability began on April 9, 2011, her 180-day elimination period 20 was satisfied on October 6, 2011, and she would continue to receive benefits on the sixth day of 21 each month so long as she remained "Totally Disabled" under the group policy. AR 753. Thus, 22 under the policy, Plaintiff's disability status was assessed under the "regular occupation" standard 23 from October 6, 2011 to October 6, 2013, and under the "any occupation" standard thereafter. See 24 AR 12, 585. Defendant's in-house nursing staff periodically reviewed Plaintiff's updated medical 25 records and repeatedly determined that her ongoing "Total Disability" was fully supported under 26 27 4 Matrix Absence Management administrated the plan for Defendant. See, e.g., AR 753-54. This 28 order uses the term "Defendant" regardless of whether Reliance took an action directly or through its claims administrator. 5 6 1 the "regular occupation" standard. AR 220-23 (medical reviews dating from November 3, 2011 to 2 August 29, 2013, the last of which concluded that the record supported a "less than sedentary" 3 level of function through October 6, 2013). 4 ii. Defendant Conducted Surveillance of Plaintiff 5 Through a third-party vendor, Defendant conducted surveillance of Plaintiff on June 10, 6 11, and 14, 2012. AR 2171-82 (surveillance report). No activity by Plaintiff was observed at her 7 residence between 9:40am and 4:40pm on June 10, 2012, though two cars were parked at her 8 residence. AR 2174. 9 On June 11, 2012, no activity by Plaintiff was observed between 6:30am and 9:12am, 10 when she briefly came out to the driveway, before returning to her residence. Id. Sometime after 11 10:50am, Plaintiff walked to the base of the driveway and appeared to put some items in her car. 12 Id. Plaintiff drove approximately ten miles from her residence to Half Moon Bay, California. Id. Northern District of California United States District Court 13 After parking, Plaintiff walked one block to a hair salon, where she stayed for approximately 75 14 minutes. Id. Plaintiff walked back to her car, and was not wearing visible braces or support 15 devices, though she was limping. Id. Plaintiff then drove the ten miles back home and entered her 16 residence. Id. Approximately thirty minutes later, Plaintiff exited her residence with a man in his 17 late twenties, and drove with him to San Mateo, California, approximately 25 miles away. Id. 18 Plaintiff entered a small shopping center. Id. The investigator lost sight of Plaintiff. Id. At 19 2:40pm, Plaintiff returned to her vehicle and drove away. Id. The investigator lost sight of her 20 vehicle and was unable to locate her thereafter, terminating his surveillance at 3:30pm. Id. 21 Three days later, on June 14, 2012, surveillance was conducted from 11:00am to 5:10pm at 22 Plaintiff's residence. AR 2175. At approximately 2:30pm, Plaintiff exited the residence and 23 walked to a vehicle parked next to her driveway. Id. She was accompanied by the same man in 24 his late twenties who had accompanied her on June 11. Id. She put her purse in the rear seat of 25 the vehicle and got in the driver's seat. Id. Shortly after she drove away, the investigator lost 26 sight of her vehicle. Id. The investigator returned to Plaintiff's residence at 5:00pm, did not 27 observe any vehicles in front of the residence, and terminated surveillance at 5:10pm. Id. 28 // 6 6 1 iii. Plaintiff Was Denied Social Security Disability Income Benefits 2 Although Plaintiff applied for Social Security Disability Income ("SSDI") benefits, her 3 claim was denied on August 21, 2012, based upon medical reports submitted in July 2012 by ten 4 physicians. AR 3650. Plaintiff had asserted that she was unable to work because of the following 5 conditions: "Sciatic pain of lumbar spine; Severe Anemia; Congenital Joint condition – 6 spontaneous dislocation; Full joint replacement both knees; Arthritis in all joints; Intermittent 7 Migraines; Carpal Tunnel both hands." Id. The report recognized that she was "experiencing 8 back problems, a joint condition, knee problems, arthritis, and Carpal Tunnel Syndrome," but 9 stated that her "condition [was] not severe enough to keep [her] from working." Id. Although it is 10 not entirely clear from the administrative record whether Plaintiff ever appealed the denial of her 11 SSDI application, as of April 15, 2014, she had not received any SSDI benefits and had no 12 pending claims before the Social Security Administration. AR 583. Northern District of California United States District Court 13 iv. Defendant Terminated Plaintiff's Disability Benefits under the "Any 14 Occupation" Standard 15 On April 11, 2013, Defendant notified Plaintiff that, as of October 6, 2013, the definition 16 of disability would change from the "regular occupation" standard to the "any occupation" 17 standard, and that Defendant would begin evaluating whether she continued to qualify for benefits 18 under the latter standard, based upon updated information regarding her medical condition, 19 education, training, and experience. AR 829-30. 20 On November 12, 2013—just over a month after the plan's disability definition changed— 21 Defendant's in-house nursing staff again concluded that "[m]edicals continue to support lack of 22 consistent work function." AR 224. In reaching that conclusion, the nurse described Plaintiff's 23 medical history and noted that her "extensive, detailed, typed activities of daily living form details 24 her symptoms of chronic pain with narcotic dependence (oxycodone up to 10x/day) and reported 25 impairing side effects." Id. The nurse also mentioned that Plaintiff was "experiencing sleep 26 impairment and working with a therapist for PTSD issues with memory problems." Id. In 27 addition, the nurse noted that "[r]ecords on file to 9/13 reveal up to thirty reported surgeries on 28 joints and hernia repairs, migraine headaches on Demerol and oxycodone." Id. 7 6 1 As part of its review of Plaintiff's qualification for disability benefits under the "any 2 occupation" standard, Defendant obtained an "independent medical evaluation" ("IME") from Dr. 3 Lakshmi Madireddi, a specialist in physical medicine and rehabilitation. AR 384-402; see also 4 AR 225 (November 25, 2013 review by in-house nursing staff, noting that "[a]dditional 5 information on file suggests a higher level of function" and that "a PM&R IME will be 6 scheduled"). Dr. Madireddi reported having spent 4.5 hours reviewing Plaintiff's medical records 7 and 40 minutes examining Plaintiff on January 8, 2014. AR 401. 8 Dr. Madireddi's 18-page report listed and then summarized Plaintiff's medical records; 9 described her medical, surgical, and social history; and stated Dr. Madireddi's diagnostic 10 impressions, diagnoses, and conclusions. AR 384-402. Dr. Madireddi concluded that Plaintiff 11 "would likely be able to perform Sedentary work with the ability to change body positions." AR 12 401. She also determined that the following "restrictions and limitations" were "supported": Northern District of California United States District Court At this time, the claimant has the ability to sit frequently, stand and 13 walk occasionally, bend at the waist occasionally, no squatting at the knees, rare stair climbing, no ladder climbing, no kneeling, no 14 crawling. She can occasionally use foot controls. She can occasionally drive as demonstrated, however she is on narcotics and 15 care should be taken with driving. I believe she can lift sedentary 10 pounds occasionally. At this time, she can perform frequent simple 16 grasping, reaching above mid-chest and at waist. She can frequently perform fine manipulation, feeling and tactile sensation essentially 17 appears to be intact. Pushing and pulling to [sic] occasionally or less with both upper extremities. This claimant will have difficulty 18 with traveling and carrying heavy suitcases. 19 AR 401. Dr. Madireddi expected these restrictions and limitations to be "permanent" and that 20 improvement was "unlikely"—with the caveat that Plaintiff might experience "less discomfort in 21 her lower extremities" if she "los[t] up 70 pounds." Id. In an addendum to her report, Dr. 22 Madireddi stated that Plaintiff had "consistent, full time work function at sedentary exertion noted 23 on physical capacity form." See AR 497 (quoting addendum) (italics omitted). 24 Plaintiff contended in a declaration that Dr. Madireddi's report contained "numerous 25 misstatements." AR 2776. Specifically, she criticized the report on grounds including the 26 following: (1) Plaintiff experienced pain when driving long distances, and it took nearly two hours 27 to drive from her home to Dr. Madireddi's office; (2) Dr. Madireddi examined her for only 15 28 minutes; (3) Dr. Madireddi stated that she did not really believe that EDS was "real"; (4) Plaintiff 8 6 1 experienced "many memory issues" when attempting to recall dates during the examination, in 2 contrast to the characterization in the report; (5) Dr. Madireddi incorrectly reported that Plaintiff 3 had no problems with childbirth, when Plaintiff actually had two miscarriages and two of her 4 children died before reaching the age of six months; (6) instead of having dental trouble at the age 5 of 22, Plaintiff actually had 22 cavities at the age of 51; (7) Plaintiff was "diagnosed with 6 Marfan's syndrome, not Marchand syndrome"; (8) Dr. Madireddi stated that she did "not know if 7 another abdominal hernia will be required," even though Plaintiff had reported that she had "one 8 or two hernias that would normally require surgery" but that her doctors had recommend that she 9 forgo surgery "because [her] EDS could cause severe complications"; (9) Plaintiff did not have 10 allergies, and could not put her bra on by herself; (10) Plaintiff had difficulty using computers and 11 did not work on the very light laptop that she brought to the examination, which she used to watch 12 movies; (11) Dr. Madireddi misstated that Plaintiff had no surgeries following her 2010 car Northern District of California United States District Court 13 accident, when in fact, she had bilateral knee replacement surgeries; (12) Dr. Madireddi failed to 14 measure Plaintiff and misstated her weight and height, as Plaintiff was 5'8" (not 5'10") tall and 15 weighed 245 (not 229) pounds; (13) Plaintiff's hips were uncomfortable during the examination; 16 (14) Plaintiff was not consulting with a therapist for PTSD; (15) Plaintiff wore braces on a daily 17 basis to support her back, knees, wrists, and fingers, and she had stated during the examination 18 that she had taken her braces off in the car to save time. AR 2775-77. 19 On January 24, 2014, Dr. Michael Siegel, a neurologist who had been treating Plaintiff for 20 over 15 years, submitted a letter in support of Plaintiff's disability claim. AR 493. Based upon 21 physical and neurological examinations conducted by him and by other physicians, Plaintiff's 22 medical history, and imaging, Dr. Siegel opined that Plaintiff was "limited in daily activities and 23 unable to work on a sustained basis." Id. He described her symptoms as "includ[ing] extreme 24 joint instability, chronic musculoskeletal pain, degenerative tissue disease, recurrent migraines, 25 nerve pain, difficulty with memory and concentration, fatigue, and tachycardia." Id. He stated 26 that she was on "round the clock narcotics" (including Oxycodone and morphine sulfate) and 27 received quarterly steroid injections. Id. Even so, Plaintiff reported "prolonged periods" of pain 28 measured as high as 8 out of 10. Dr. Siegel concluded as follows: 9 6 1 In my opinion, Mrs. Parr is unable to resume any type of gainful employment due to both physical impairment and pain medication 2 use at levels that interfere with critical thinking and decision- making. In addition, the burden of regular work will likely make 3 her condition worse, accelerating the deterioration of joints. EDS is a progressive disorder, and while degeneration can be delayed with 4 treatment, there is no cure. 5 Id. 6 On January 27, 2014, Dr. Richard Florio, an orthopedic and reconstructive surgeon whose 7 medical office had been treating Plaintiff for over 10 years, submitted a letter in support of 8 Plaintiff's disability claim. AR 495-96. After describing Plaintiff's EDS diagnosis, treatment, and 9 recent medical history, Dr. Florio concluded as follows: At this time, in my best professional judgment, Ms. Parr continues 10 to be totally disabled and unable to do any substantial gainful employment. Not only is Mrs. Parr unable to work, but to do so 11 would most likely cause further injury to her joints and exacerbate her condition. In addition, Ms. Parr is currently on round the clock 12 narcotics for pain management (Oxycode 30 mg every 3 hours, Northern District of California United States District Court Morphine Sulfate 20mg/ml - 2x day 2.5ml, and others) that would 13 impair decision making abilities in a job setting. There is no cure for Ehlers-Danlos [Syndrome] and Ms. Parr's condition will only 14 deteriorate further over time. 15 AR 494-95. 16 Defendant also sought a vocational evaluation of Plaintiff. AR 497-512 (dated February 6, 17 2014). To identify the "restrictions and limitations" supported by Plaintiff's medical condition, 18 the vocational evaluation relied exclusively on the medical evaluation of Dr. Madireddi. AR 497. 19 The vocational evaluation also considered Plaintiff's education, training, and work history. AR 20 497-98. The vocational evaluation concluded that Plaintiff was qualified to perform at least the 21 following five occupations: Director, Community Organization; Management Analyst; Manager, 22 Department; Manager, Sales; Market-Research Analyst I. AR 499-500. The vocational 23 evaluation noted that "additional titles" were available on "the DOT match list." AR 500. That 24 list included the following five additional occupations: Contact Representative; Field 25 Representative; Manager, Market; Order Department Supervisor; and Personnel Recruiter. AR 26 501. All ten of the occupations above were classified as sedentary.5 AR 499-501. The evaluation 27 5 28 "Sedentary" was defined as follows: Exerting up to 10 pounds of force occasionally and/or a negligible 10 6 1 also classified Plaintiff's former position at Monster as sedentary. See AR 499 (listing the title of 2 Plaintiff's position in 2010-11 as "Manager, Sales" (DOT Code 163.167-018)); AR 500 3 (classifying that exact same position and code as sedentary occupation). 4 Dr. Michael Stevens, a rheumatologist who had been treating Plaintiff since May 2013 and 5 diagnosed her with EDS, filed a report regarding her disability claim on March 3, 2014. AR 515- 6 16. He stated that her joints were susceptible to injury, that she must not use her hands or fingers 7 repetitively, and that that she must "avoid activities at work that involve repetitive movements 8 and/or lifting > 10 lbs repetitively and/or prolonged postures." AR 515. Dr. Stevens stated that 9 during a typical 8-hour workday Plaintiff could "occasionally" sit, stand, walk, bend/twist, squat, 10 kneel, crouch, climb stars, reach, or lift 10 pounds or less. AR 516. Dr. Stevens opined that 11 Plaintiff could drive a vehicle "occasionally" if it had a manual transmission and "frequently" if it 12 had an automatic transmission. Id. The report also stated that Plaintiff was using a variety of Northern District of California United States District Court 13 medications: "1% Voltaren gel; Omneprazole; Demerol; Oxycodone (PN); Sumatriptan; MVI's." 14 AR 515. 15 On March 14, 2014, Defendant terminated Plaintiff's disability benefits on the ground that 16 she was not "totally disabled" under the "any occupation" standard. See AR 583-89. In reaching 17 that determination, Defendant reviewed "all of the information in [Plaintiff's] claim file, including 18 (but not limited to) the information provided by Drs. Lakshmi N. Madireddi, Michael Siegel, 19 Richard Florio and Michael Stevens." AR 585. In addition, Defendant relied on the vocational 20 evaluation. AR 587. 21 v. On Appeal, Defendant Affirmed the Denial of Plaintiff's Disability Benefits 22 Plaintiff appealed Defendant's claim decision on September 29, 2014. AR 2711-883. 23 Plaintiff made several arguments in her appeal. First, she argued that Defendant improperly 24 ignored the "consistent and reliable" medical evidence showing that she was disabled, focusing on 25 26 amount of force frequently to lift, Carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves 27 sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are 28 required only occasionally and all other sedentary criteria are met. AR 500. 11 6 1 Dr. Madireddi's report while ignoring other evidence from the claim file, such as evidence from 2 Plaintiff's treating physicians or clinical studies regarding EDS. AR 2715-21. Second, Plaintiff 3 asserted that Defendant improperly relied on Dr. Madireddi's report, despite the report containing 4 "numerous misstatements," Dr. Madireddi having exhibited bias in other disability cases, Dr. 5 Madireddi's conclusion that Plaintiff was capable of sedentary work being inconsistent with the 6 medical literature regarding EDS-related chronic pain, and Dr. Madireddi having "failed to 7 address the cognitive side effects that [Plaintiff]'s powerful pain medications would have on her 8 ability to focus on a full-time job, or even to commute." AR 2721-24. Third, Plaintiff contended 9 that Defendant "improperly concluded" that she was able to perform "any 'sedentary' position," 10 when her treating physicians had "explicitly prohibited her from returning to work." AR 2724. 11 Relatedly, Plaintiff criticized the vocational evaluation's conclusion that despite being "disabled 12 from her position as 'Sales Director' of Monster," she could somehow still "work full time as a Northern District of California United States District Court 13 'Manager, Sales' in another profession." Id. Plaintiff contended that, in reality, her "severe pain," 14 "joint instability," "inability to stand or sit," and treatment with "heavy narcotics" would prevent 15 her from "perform[ing] any job on a full-time basis." AR 2725. Fourth, Plaintiff asserted that 16 Defendant improperly relied on three days of surveillance showing only that she ran "infrequent 17 errands" on two isolated days, and an online investigation regarding Plaintiff that contained 18 numerous factual errors. AR 2726. Fifth, Plaintiff asserted that Defendant breached its fiduciary 19 duty to act "solely in the interests" of the claimant, instead exhibiting bias by breaching her private 20 Facebook account, conducting the vocational evaluation under circumstances that violated its own 21 claim procedures manual, and incorrectly informing her that she was not permitted to be 22 represented by counsel on appeal. AR 2726-27. 23 Plaintiff attached 17 exhibits to her appeal, including new medical statements by Dr. Siegel 24 and Dr. Florio; three scientific articles regarding EDS; medical records from Dr. Stevens, Dr. 25 Siegel, and Dr. Florio; declarations by Plaintiff and her husband, Barry Parr; ten statements by 26 friends and family; the transcript from a 2007 deposition of Dr. Madireddi; two federal district 27 court opinions; photos of Plaintiff; and a fax from Plaintiff to the Defendant in which she set forth 28 complaints regarding her medical evaluation by Dr. Madireddi. AR 2728-883. 12 6 1 Of particular note are the statements from two of Plaintiff's treating physicians. Dr. 2 Siegel, in a letter dated September 23, 2014, stated that he had reviewed Dr. Madireddi's report 3 and that he disagreed with her conclusion that Plaintiff was able to perform sedentary work. AR 4 2731. Dr. Siegel reiterated that he had treated Plaintiff for over fifteen years and that he was 5 familiar with her medical conditions and the pain caused by them, and he briefly summarized 6 Plaintiff's medical history. Id. He then described her current condition and limitations as follows: 7 [Plaintiff] will have to manage the pain caused by Ehler[s]-Danlos [Syndrome] for the rest of her life. She requires supportive bracing 8 of her joints, and has been using a wheelchair for all activities requiring more than five minutes of walking. Currently, Ms. Parr is 9 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 10 management expert believes is reasonable), and Ketorolac and Imitrex nasal sprays for pain from migraine headaches. Even when 11 she regularly treats with these medications, Ms. Parr reports high levels of pain, and if she attempts any effort for more than two 12 hours, she is often bed-ridden for days before she can recover. Her Northern District of California United States District Court condition precludes her from returning to any job, sedentary or 13 otherwise. Although Dr. Madireddi opines that Ms. Parr can change her "body positions" during the day, I believe that would not 14 substantially alleviate Ms. Parr's pain. Further injury to her joints could be fatal: her surgeon will have difficulty successfully suturing 15 incisions. 16 To summarize, it is essential that Ms. Parr avoid further stress or damage to her joints in order to minimize complications from her 17 Ehlers-Danlos Syndrome. I continue to support her ongoing total disability in light of her known diagnosis, clinical findings, and 18 symptoms. 19 Id. 20 Dr. Florio stated in a letter dated September 17, 2014 that Plaintiff was "under [his] 21 medical care and may not return to work." AR 2733. He reaffirmed his opinions from two 22 previous letters submitted in 2014. Id. Dr. Florio also stated that Plaintiff was "severely 23 incapacitated with Ehler[s]-Danlos Syndrome" and "unable to work as this may cause 24 exacerbation to her condition which include[s] tendon and ligament damage." Id. He confirmed 25 that she was taking various narcotics for pain management and that EDS was a genetic disorder 26 without any "cure or treatment." Id. 27 After Plaintiff appealed, Defendant obtained another "independent medical evaluation," 28 this time by Dr. N. Nichole Barry, who examined Plaintiff on November 4, 2014. AR 2453-71. 13 6 1 In her report, Dr. Barry reviewed and summarized numerous documents from early 2011 to late 2 2014, primarily medical records, regarding Plaintiff's medical conditions, symptoms, and 3 treatments. AR 2453-66. Dr. Barry then answered a series of questions regarding "all medical 4 conditions currently impacting [Plaintiff's] status as of 10/06/13," AR 2466-67, "[Plaintiff's] 5 appearance, attitude, and general demeanor," AR 2467, the correlation between Dr. Barry's 6 "diagnoses" and her "clinical findings," AR 2467-68, whether there was "medical data to 7 substantiate the presence of complaints," AR 2468, whether Plaintiff's "complaints" were 8 "consistent with [Dr. Barry's] examination findings," id., Plaintiff's "current treatment plan," AR 9 2468-69, Plaintiff's "prognosis," AR 2469, whether Plaintiff was "impair[ed] as of 10/06/13," id., 10 whether Plaintiff had "work capacity on a full time consistent basis," id., the functional capacity of 11 Plaintiff's upper extremities, AR 2469-70, and Plaintiff's current medications, as well as their 12 possible side effects, AR 2470. Northern District of California United States District Court 13 In her report, Dr. Barry concluded that Plaintiff "most likely has type 3 or hypermobility 14 variant of EDS, also known as EDS-HM." AR 2467. Dr. Barry considered Plaintiff to be too 15 focused ("bordering on obsessed") with her EDS diagnosis, given that "[h]er primary issue is back 16 pain," but immediately thereafter stated that Plaintiff's back pain was "most likely" related to "her 17 general hypermobility," apparently in reference to EDS-HM. AR 2467. Dr. Barry found it "quite 18 striking" that Plaintiff's reported pain levels were "clearly far out of proportion" and 19 "inconsistent" with the physical examination's findings and Plaintiff's "claimed mechanical 20 issues." AR 2467-68. Nonetheless, Dr. Barry also wrote that patients with EDS-HM "classically 21 experience chronic widespread pain, almost neuropathic with hypersensitivity to light touch and 22 burning." AR 2468. Accordingly, Dr. Barry believed that the "major source of [Plaintiff's] pain 23 is, within a reasonable degree of medical probability, a chronic pain syndrome, not unlike 24 fibromyalgia, rather than specific mechanical issues." Id. Dr. Barry believed that Plaintiff's 25 "prognosis is relatively good, if she starts to exercise and strengthen muscles" but that otherwise 26 "her pain will increase and her joint laxity may become more of an issue." AR 2469. Dr. Barry 27 believed that Plaintiff's ability to work for many years prior to her total knee replacements 28 suggested that a regimen of strength training and weight loss could control her joint laxity. Id. 14 6 1 She contended that "hypermobility or EDS is not progressive" and that "ligaments do NOT 2 become more lax over time." Id. (capitalization in original). 3 Ultimately, Dr. Barry concluded that Plaintiff could perform a "sedentary" job, and that 4 during an eight-hour workday, she was "capable of exerting up to 10 pounds of force occasionally 5 (1/3 of the workday) and/or a negligible amount of force frequently (1/3 to 2/3 of the workday) to 6 lift, carry, push, pull, or otherwise move objects, including the human body." Id. That said, 7 Plaintiff "should be allowed ten-minute stretch and/or walk around breaks every two hours and be 8 allowed to move from sitting to standing as needed." Id. Dr. Barry concluded that no restrictions 9 were supported for her upper extremities. AR 2470. While noting that Plaintiff was taking 10 narcotics that "can cause drowsiness in some patients," Dr. Barry concluded that Plaintiff was 11 "unlikely" to experience side effects because she had "worked full time while taking narcotics for 12 years prior to her claimed disability." Id. Earlier in the report, however, Dr. Barry summarized Northern District of California United States District Court 13 documents from Plaintiff's treating physicians indicating that she had experienced side effects 14 from pain medications, such as "dizziness and nausea," the inability to "engage in the strategic 15 thinking necessary for her job," and impairment of "critical thinking and decision making." AR 16 2458-59, 2465. 17 On November 12, 2014, Plaintiff's attorney sent a letter to Defendant objecting to Dr. 18 Barry's report. AR 2491-93. In particular, her attorney complained that Dr. Barry's objectivity 19 had been compromised by having received a copy of the September 8, 2014 Social Media 20 Monitoring Report by Marshall Investigative Group. AR 2491. Plaintiff's attorney stated that 21 most of the photos in the report were from 10 to 15 years prior, long before Plaintiff's car accident 22 and the worsening of her health conditions. AR 2492. Moreover, her attorney asserted that 23 Plaintiff traveled to Georgia in early 2014 so that her mother, a registered nurse, could care for 24 her, and that more recent Facebook photos showed Plaintiff using a wheelchair and wearing 25 braces. Id. Along with the letter, Plaintiff's attorney submitted a declaration from Plaintiff and 26 several other documents relating to Plaintiff's medical conditions. AR 2494-2521. 27 Several portions of Plaintiff's declaration merit further description. With regard to Dr. 28 Barry's medical evaluation, Plaintiff stated that she was examined for a total of 32 minutes, after 15 6 1 accounting for a total of 45 minutes when Dr. Barry left the room. AR 2495-96. Plaintiff stated 2 that the appointment took so long that she had to lie down on the examination table to alleviate her 3 joint pain. AR 2495. Plaintiff noted that she was not asked to fill out any paperwork regarding 4 her condition or limitations, that she was not weighed or measured, and that Dr. Barry declined to 5 examine the numerous items brought by Plaintiff that she used to manage her pain (including a 6 nerve stimulation unit and her numerous braces and supports). Id. Plaintiff declared that Dr. 7 Barry's physical examination of her feet and ankle was very painful, but when told so by Plaintiff, 8 Dr. Barry expressed skepticism, continuing to handle her "harshly." Id. 9 Plaintiff also expressed frustration that the social media monitoring report was used to 10 "taint" Dr. Barry's examination, given that the report contained "substantial inaccuracies, 11 distortions of time, photos taken out of context, and misstatements." AR 2496; see also AR 3586- 12 642 (social media monitoring report dated September 8, 2014). For example, the report Northern District of California United States District Court 13 proclaimed that Plaintiff was "very active" and traveled "after the date of the loss,"6 AR 2496, 14 while relying on many photos that were taken many years before the accident and the worsening 15 of her medical conditions, see, e.g., AR 2497 (report implied that Plaintiff went rock climbing and 16 snowmobiling in 2014, when in fact the photos were from 2003); AR 2499 (discussing photo of 17 family vacation taken 11 years prior). Plaintiff also attacked the report's heavy reliance on her trip 18 to Georgia in August 2014. See AR 2497-98. Plaintiff specified that she made the trip because 19 her mother (a registered nurse) was in the best position to care for her at that time. AR 2497. 20 Moreover, she noted that taking the flights and waiting for the connections was painful, she used a 21 wheelchair at every airport, and she received assistance with her bags. AR 2498. Plaintiff also 22 clarified that she no longer had a photography business, could no longer carry photography 23 equipment, and could only hold a lightweight camera and shoot from a seated position. AR 2500. 24 Overall, Plaintiff objected to the social media report's "deliberate misconstruction of [her] life," 25 based largely on photographs taken or activities engaged in many years before, when she was still 26 able to be active and work. AR 2501. Accordingly, she declared that the report was a "gross 27 6 28 Plaintiff's "date of loss" was April 9, 2011, AR 222, i.e., the first day of her disability and 180- day elimination period under the policy, AR 753. 16 6 1 misrepresentation of [her] current abilities (or lack thereof), restrictions, and limitations." Id. 2 In a short addendum, Dr. Barry summarized additional documents submitted by Plaintiff, 3 including an MRI and the activities of daily living questionnaire. AR 2472-73. Dr. Barry's 4 summary of the questionnaire included dozens of medical issues, including in part the following 5 issues relating to chronic pain, fatigue, and cognitive function: TMJ (temporomandibular joint 6 disorder); teeth grinding and morning pain; early morning migraines and headaches; resistance to 7 oral anesthesia and interventions; tension headaches; neck pain causing dizziness and vertigo; 8 vague pains throughout the body; back pain with sciatica; shoulder pain; fatigue when writing or 9 computing for more than 15 minutes; muscle tightness and cramping; pain with pressure on the 10 ribs, particularly after lying down for more than 10 minutes; pain in the sternum, such as when 11 Plaintiff laughed, coughed, or breathed deeply; pain after walking more than 10 minutes; knee 12 pain, swelling, and grinding; painful arthritis; pain in the low leg, arch, heel, and inside of ankle; Northern District of California United States District Court 13 musculoskeletal pain; tendon and muscle rupture pain; chronic pain syndrome; chronic joint and 14 limb pain; nightly sleep interference from chronic pain; daytime sleepiness; atypical chest pain; 15 near fainting episodes; difficulty thinking, anxiety, and nervousness; jaw pain; myofascial pain; 16 insomnia; profound persistent fatigue; nausea; loss of concentration, foggy thinking, and poor 17 memory; depression; and panic attacks. AR 2472-73. Dr. Barry stated that the additional 18 documents submitted did not alter her prior determination. AR 2473. In addition, Dr. Barry 19 contended that "no bias occurred due to pictures from 'social media' as suggested." AR 2473. Dr. 20 Barry stated that she focused on Plaintiff's "activity" because "that is what the IME is 21 determining." AR 2473. She also denied that her questions during the examination were hostile, 22 and stated that she left the examining room for a shorter period than asserted by Plaintiff. Id. 23 Defendant denied Plaintiff's appeal in a letter dated January 6, 2015. AR 2121-28. 24 Defendant concluded that the information submitted on appeal "failed to provide any insight as to 25 whether [Plaintiff] was physically incapable of other sedentary work on a full-time basis, as her 26 vocational and educational background allowed." AR 2122. Defendant discounted Dr. Siegel's 27 letter regarding Plaintiff's chronic pain and injury risk as being insufficiently supported by his 28 actual treatment notes. AR 2123. Defendant found it "noteworthy" that Plaintiff had 17 6 1 "successfully attended" a two-day EDS conference held in Rhode Island in August 2013. Id. 2 Defendant also was unpersuaded by Dr. Florio's opinion that Plaintiff was unable to work in a 3 sedentary full-time capacity. Id. Defendant found Plaintiff's risk of injury to be too speculative 4 and concluded that her medical records provided "little to no indication" that she had "experienced 5 debilitating side effects from her medications." Id. Defendant noted Plaintiff's ability to "engage 6 in social activities, prepare numerous email communications and prepare correspondence to her 7 doctors" while taking her narcotic mediations. Id. 8 Defendant relied extensively on Dr. Barry's report in reaching its decision. AR 2123-27. 9 Defendant stated that the use of a different physician and vendor addressed Plaintiff's concerns 10 with the prior evaluation by Dr. Madireddi. AR 2123. Defendant also stated that Dr. Barry had 11 been given a "complete copy" of Plaintiff's medical records, as well as "other evidence 12 accumulated during the course of her claim, including surveillance information and social media Northern District of California United States District Court 13 information, all of which is relevant to this claim and the appeal review." AR 2123. Defendant 14 contended that surveillance and investigatory work were "permissible and necessary" tools for 15 gaining a full understanding of Plaintiff's "actual limitations, restrictions, and physical abilities." 16 AR 2126. Defendant found that Plaintiff's medical records were "void" of any indication that the 17 use of narcotic medication caused Plaintiff to suffer from any "cognitive deficits, let alone 18 disabling side effects." Id. Defendant found that the "few days" of surveillance showed that 19 Plaintiff could "engage in activity to a greater extent than she claims." AR 2126. Moreover, 20 Defendant found that the provision of the surveillance and social media information to Dr. Barry 21 did not "taint" her review because she was subsequently provided with Plaintiff's attorney's letter 22 dated November 12, 2014, and Plaintiff's attached declaration. See id. 23 Ultimately, Defendant found that Dr. Barry's report and addendum, and her claim file as a 24 whole, supported its prior determination that Plaintiff was able to perform sedentary work, subject 25 to certain restrictions. AR 2126-27. Defendant relied on the same vocational evaluation used to 26 support its prior determination. AR 2127. Defendant concluded that the "brief letters or 27 statements of support" from Plaintiff's physicians were "insufficient proof" of her total disability, 28 and that their treatment notes "at minimum fail to support the opinions that [Plaintiff ] is incapable 18 6 1 of performing any work." Id. Defendant advised Plaintiff that its claim decision was final and 2 that she had exhausted her administrative remedies. AR 2128. This lawsuit followed. 3 II. FINDINGS OF LAW 4 ERISA's civil enforcement provision permits a claimant "to recover benefits due to him 5 under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights 6 to future benefits under the terms of the plan." See 29 U.S.C. § 1132(a)(1)(B); Muniz v. Amec 7 Const. Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir. 2010). Federal courts have jurisdiction to hear 8 claims brought under ERISA's civil enforcement provision. See 29 U.S.C. § 1132(e). 9 "[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo 10 standard unless the benefit plan gives the administrator or fiduciary discretionary authority to 11 determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber 12 Co. v. Bruch, 489 U.S. 101, 115 (1989). Here, the parties have stipulated that the de novo Northern District of California United States District Court 13 standard of review applies. Dkt. No. 24 at 3. 14 Under the de novo standard of review, the plaintiff bears the burden of proof, even where 15 disability benefits have been denied following an initial grant. Muniz, 623 F.3d at 1294, 1296. 16 Nonetheless, while the fact that benefits were previously awarded and paid does not shift the 17 burden of proof, it may still be "relevant to the issue of whether the claimant was disabled and 18 entitled to benefits at a later date." Id. at 1296. When reviewing the record under a de novo 19 standard of review, the district court "does not give deference to the claim administrator's 20 decision, but rather determines in the first instance if the claimant has adequately established that 21 he or she is disabled under the terms of the plan." Id. at 1295-96; see also Abatie v. Alta Health & 22 Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) ("If de novo review applies, . . . [t]he court simply 23 proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits. . . ."). 24 The district court's review is limited to the evidence contained in the administrative record, except 25 in limited circumstances when "additional evidence is necessary to conduct an adequate de novo 26 review of the benefit decision." Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 27 46 F.3d 938, 944 (9th Cir. 1995). When assessing a claimant's entitlement to disability benefits, 28 courts are not required to give greater weight to the opinions of his treating physicians. Muniz, 19 6 1 623 F.3d at 1297. 2 Applying the de novo review standard the parties agree applies, the Court finds that 3 Plaintiff has shown by a preponderance of the evidence that she is "totally disabled" under the 4 "any occupation" standard. The Court reaches this conclusion after careful consideration of the 5 administrative record. The most important considerations ultimately favoring Plaintiff are 6 articulated below. 7 First, Plaintiff's "total disability" under the "any occupation" standard is supported by the 8 medical opinions of Dr. Siegel and Dr. Florio, who by January 2014 had both been treating 9 Plaintiff for over a decade, and who rendered their opinions based upon the consideration of such 10 factors as Plaintiff's medical conditions, treatment, and history, as well information collected from 11 physical and neurological examinations and imaging. See AR 493, 495-96. As of January 2014, 12 Drs. Siegel and Florio concluded that Plaintiff was "unable to work on a sustained basis" and Northern District of California United States District Court 13 "unable to do any substantial gainful employment," respectively. AR 493, 495-96. These 14 conclusions appear reasonable given that Plaintiff's symptoms included "extreme joint instability, 15 chronic musculoskeletal pain, degenerative tissue disease, recurrent migraines, nerve pain, 16 difficulty with memory and concentration, fatigue, and tachycardia." See AR 493. Moreover, 17 Drs. Siegel and Florio described Plaintiff as being on "round the clock narcotics" at levels "that 18 would impair decision making abilities in a job setting" and "interfere with critical thinking." See 19 AR 493, 495-96. In September 2014, Drs. Siegel and Florio once again opined that Plaintiff was 20 unable to return to even sedentary work. See AR 2731, 2733. They confirmed that Plaintiff was 21 taking various narcotic medications (including Oxycodone, Fentanyl, Ketorolac, and Imitrix), see 22 id., and Dr. Siegel specified that Plaintiff nonetheless reported high levels of pain after any effort 23 exceeding two hours, and was "often bedridden for days," see AR 2731. 24 Relatedly, the Court finds that Defendant improperly discounted the importance of 25 Plaintiff's chronic pain, and its impact on her functional abilities. In denying Plaintiff's appeal, 26 Defendant stated that "the actual treatment notes of Dr. Siegel fail to provide any details regarding 27 the severity and/or frequency of these episodes [of Plaintiff experiencing high levels of pain and 28 being bed-ridden for days at a time], nor any specific reference to her abilities or lack thereof." 20 6 1 AR 2123. Defendant did not, however, point to any specific examples of Dr. Siegel's treatment 2 notes that were inconsistent with these episodes, see AR 2121-28, nor did the Court find any 3 among the nearly 500 pages of his treatment notes in the administrative record, see AR 1446- 4 1935. In fact, various relatively recent treatment notes are consistent with Plaintiff having 5 experienced debilitating pain. See, e.g., AR 1781 (September 16, 2014 notes documenting 6 "shooting pain in arms/legs"); AR 1783 (February 14, 2014 notes stating "Joints in hands very 7 painful"); AR 1787 (September 25, 2013 notes specifying "Pain Urgent"). Furthermore, in a letter 8 to Dr. Siegel, dated April 2, 2014 and kept with her medical records, Plaintiff stated as follows: 9 "I'm having a real problem controlling my pain. I've been in bed for three days and it's still 10 taking about two to three hours each morning to get my fingers moving. . . . [E]ven given the 11 extra pain meds, my pain still runs around 7 or 8 most of the time. The arthritis in my hands and 12 feet is so bad that I had to have my rings cut off, and often I can't even get into my shoes." AR Northern District of California United States District Court 13 1813. 14 The views of Drs. Siegel and Florio must be weighed against the views of the physicians 15 retained by Defendant, Drs. Madireddi and Barry. And the Court is not required to give greater 16 weight to the opinions of Plaintiff's treating physicians. See Muniz, 623 F.3d at 1297. 17 Nonetheless, the Court finds them more reliable and probative. See Rabbat v. Standard Ins. Co., 18 894 F. Supp. 2d 1311, 1322 (D. Or. 2012) ("Although. . . no special deference is required, 'this 19 does not mean that a district court, engaging in a de novo review, cannot evaluate and give 20 appropriate weight to a treating physician's conclusions, if it finds these opinions reliable and 21 probative.'" (quoting Paese v. Hartford Life & Acc. Ins. Co., 449 F.3d 435, 442 (2d Cir. 2006)). 22 Drs. Siegel and Florio have much greater familiarity with the patient than Defendant's hired 23 physicians, which makes the opinions of the former substantially more compelling on this record. 24 See Jebian v. Hewlett-Packard Co. Emp. Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1109 25 n.8 (9th Cir. 2003) ("On de novo review, a district court may, in conducting its independent 26 evaluation of the evidence in the administrative record, take cognizance of the fact. . . that a given 27 treating physician has a greater opportunity to know and observe the patient than a physician 28 retained by the plan administrator." (internal quotation marks omitted)). Whereas Dr. Madireddi 21 6 1 examined Plaintiff once for somewhere between 15 and 40 minutes, compare AR 400-01 with AR 2 2775, and Dr. Barry examined Plaintiff once for somewhere between approximately 30 and 60 3 minutes, compare AR 2495-96 with AR 2473, Drs. Florio and Siegel have been treating Plaintiff 4 for over 10 years and over 15 years, respectively, see AR 493, 495. 5 Other portions of the record also add support to the Court's determination that Plaintiff is 6 "totally disabled" under the "any occupation" standard. For example, as late as November 12, 7 2013 (over a month after the plan's "any occupation" standard took effect), Defendant's in-house 8 nursing staff concluded that Plaintiff was unable to work based in part upon her reported "chronic 9 pain with narcotic dependence," noting that Plaintiff was on both oxycodone and Demerol and had 10 "memory problems." AR 224. With respect to Plaintiff's chronic pain, Dr. Barry, even while 11 reaching a contrary conclusion to Drs. Siegel and Florio regarding Plaintiff's capacity for work, 12 recognized that patients with EDS-HM "classically experience chronic widespread pain, almost Northern District of California United States District Court 13 neuropathic with hypersensitivity to light touch and burning," and believed that a "major source of 14 [Plaintiff's] pain is. . . a chronic pain syndrome, not unlike fibromyalgia." AR 2468. In addition, 15 while Dr. Barry expressed doubt that Plaintiff would experience side effects from her narcotic 16 mediations, see AR 2470, the underlying documents summarized by Dr. Barry showed that 17 Plaintiff had a history of experiencing side effects from her pain medications, such as "dizziness 18 and nausea," the inability to "engage in the strategic thinking necessary for her job," and 19 impairment of her "critical thinking and decision making," see AR 2458-2465. Dr. Barry's 20 addendum also summarized a host of medical issues relating chronic pain, severe fatigue, and 21 impaired cognitive function (e.g., loss of concentration and memory). See AR 2472-73. 22 Furthermore, the Court finds that the vocational evaluation relied upon by Defendant in 23 reaching both the initial and final denial determinations under the "any occupation" standard was 24 flawed. See AR 587, 2127. First, to identify the appropriate "restrictions and limitations" 25 supported by Plaintiff's medical decision, the vocational evaluation relied exclusively on the 26 medical evaluation of Dr. Madireddi. See AR 497. However, Plaintiff has identified numerous 27 misstatements and inaccuracies in Dr. Madireddi's report, see AR 2775-777, several of which are 28 explicitly corroborated by the administrative record. For example, while the report states that 22 6 1 Plaintiff had no surgeries following her car accident, see AR 398, this is contradicted by Dr. 2 Florio's medical records and his March 24, 2012 letter, see AR 482-85, 659, 914, 2615, by the 3 report itself, see AR 396, and by the undisputed facts, compare Mot. at 5 with Opp. at 4. And Dr. 4 Madireddi repeatedly mischaracterized Plaintiff as possibly having Marchand syndrome, see AR 5 396, 399, when Dr. Stevens had actually diagnosed her as possibly having Marfan's syndrome, a 6 condition overlapping with EDS, see AR 3820. These and other errors raise significant questions 7 regarding the report's overall reliability. The report also failed to adequately address the cognitive 8 side effects that Plaintiff's heavy narcotic medications had on her ability to consistently perform a 9 full-time job. Insofar as Dr. Madireddi consequently overestimated Plaintiff's abilities, the 10 vocational evaluation inaccurately concluded that Plaintiff was capable of full-time performance 11 of ten sedentary occupations. 12 The vocational evaluation is also in tension with the internal reports prepared by Northern District of California United States District Court 13 Defendant's in-house nursing staff, which repeatedly concluded that Plaintiff's ongoing "total 14 disability" was fully supported under the "regular occupation" standard. See AR 220-23. While 15 appreciating the distinction between the two disability standards, the Court finds it significant that 16 the last of these reviews concluded that the record supported a "less than sedentary" level of 17 function through October 6, 2013. See AR 223 (emphasis added). In addition, on November 12, 18 2013, over a month after the "any occupation" standard took effect, Defendant's in-house nursing 19 staff concluded that Plaintiff lacked "consistent work function." See AR 224. It is therefore 20 striking that less than three months later, on February 4, 2014, the vocational assessment 21 concluded that Plaintiff was able to work full time in a variety of sedentary occupations— 22 including the same sedentary position ("Manager, Sales") that Defendant had repeatedly held 23 Plaintiff was unable to perform. See AR 499-501. Defendant does not point to any evidence that 24 Plaintiff's medical conditions remarkably improved during this short time period. See Opp. at 5-6. 25 And under the express terms of the policy, the Court may not explain away this incongruence on 26 the ground that Plaintiff's former position involved an unusual amount of activity as compared to 27 typical sales manager positions. See AR 12 (defining "Regular Occupation" as "the occupation 28 the Insured is routinely performing when Total Disability begins. . . look[ing] at the Insured's 23 6 1 occupation as it is normally performed in the national economy, and not the unique duties 2 performed for a specific employer or a specific locale." (emphasis added)). 3 Moreover, Defendant's physical surveillance of Plaintiff adds no support to the 4 determination that she was not disabled under the "any occupation" standard. The Court 5 recognizes that surveillance may properly be used to support a determination that a claimant is not 6 disabled under the "any occupation" standard. See Pannebecker v. Liberty Life Assur. Co. of 7 Boston, 542 F.3d 1213, 1218-19 (9th Cir. 2008) (holding that the record, including video 8 surveillance of the plaintiff, supported the determination that the plaintiff could perform certain 9 sedentary positions). But here, the sparse and outdated surveillance conducted by Defendant is not 10 significantly probative as to whether Plaintiff is "totally disabled" under the "any occupation" 11 standard. First, the surveillance was conducted on June 10, 11, and 14, 2012, nearly a year and a 12 half before the "any occupation" standard took effect on October 6, 2013. See AR 12, 585, 2171- Northern District of California United States District Court 13 82. Second, the surveillance reflects only modest and isolated activity: on June 10, Plaintiff was 14 not observed engaging in any activity; on June 11, she was observed driving approximately 45 15 miles (split up into three shorter trips), walking a short distance, and sitting for approximately 75 16 minutes; and three days later, on June 14, she was observed walking to the curb and driving a 17 short distance. See AR 2174-75. Essentially, Plaintiff engaged in relatively short periods of 18 modest activity on two occasions separated by three days. This is not significantly probative of 19 Plaintiff's ability to consistently work at least 21 hours per week. See AR 11 (listing policy's 20 definition of "total disability," which encompasses those who are "only capable of performing the 21 material duties on a part-time basis" and defines "full time" as "working at least 21 hours per 22 week"). As the Ninth Circuit has observed, that a claimant is capable of performing sedentary 23 activities in "bursts" spread out over several days does not show that she is capable of sustaining 24 that activity on a full-time basis. See Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 633 25 (9th Cir. 2009). 26 For similar reasons, the Court finds that the social media surveillance conducted by 27 Defendant does not support the denial of benefits. Defendant argues that Plaintiff's capacity to 28 perform sedentary work was evidenced in part by her having "traveled from California to the 24 6 1 [E]ast [C]oast on at least three occasions: (1) to attend a friend's funeral in January 2012, (2) to 2 attend a two-day EDS medical conference in Rhode Island in August 2013, and (3) to visit 3 relatives in Georgia in August 2014." Opp. at 20 (internal citations omitted). Plaintiff does not 4 dispute that she made these trips. Reply at 13. However, limited travel, particularly sitting for 5 three flights over the course of three years, is not probative of Plaintiff's capacity to consistently 6 work on a full-time basis. See Moody v. Liberty Life Assur. Co. of Boston, 595 F. Supp. 2d 1090, 7 1099 n.3 (N.D. Cal. 2009) ("[The defendant] makes much of the fact that [the plaintiff] traveled on 8 some occasions, including trips to Seattle and the East Coast, and a cruise. These do not have any 9 rational bearing upon cognitive ability. As for physical ability, it is unreasonable to conclude from 10 the fact that an individual tolerated a few hours on an airplane trip at a particular time that he can 11 work full time on a continuous basis."). 12 Plaintiff has also successfully raised doubts as to the reliability of much of the rest of the Northern District of California United States District Court 13 social media evidence. For example, while the report implies that she went rock climbing and 14 snowmobiling in 2014, Plaintiff states that this trip occurred in 2003, which is credible, given that 15 she appears significantly younger in the photos and in one is carrying a small child. See AR 2497, 16 3587, 3616-17. The social media surveillance does credibly show Plaintiff engaging in some 17 activity consistent with sedentary work, though often during uncertain timeframes, raising 18 questions about relevance or, at a minimum, persuasive weight. See, e.g., AR 3600, 3603 19 (Facebook posts regarding "putting together folders" for an event and removing price stickers 20 from 100 Christmas cards, marked only with the month and day, not the year). Regardless, such 21 isolated evidence of functional activity does not tip the balance of the evidence away from 22 Plaintiff. See Montour, 588 F.3d at 633 (isolated bursts of activity not probative of full-time work 23 capacity).7 24 Finally, the Court does not ignore the fact that Plaintiff was denied SSDI benefits on the 25 7 26 Plaintiff argues that Defendant forfeited the ability to rely on the video and social media surveillance. Reply at 11-13. Since the Court finds that the surveillance is not dispositive, it need 27 not reach Plaintiff's argument. The Court observes, however, that Defendant itself, on July 23, 2012, found that the "[s]urveillance did not show anything that appears would be inconsistent with 28 the disability claim," see AR 352, and that Defendant's March 14, 2014 letter terminating Plaintiff's disability benefits made no mention of the surveillance, see AR 584-89. 25 6 1 basis that her "condition [was] not serious enough to keep [her] from working." See AR 3650. 2 However, SSDI decisions are not binding in an ERISA case. Cf. Madden v. ITT Long Term 3 Disability Plan for Salaried Emps., 914 F.2d 1279, 1286 (9th Cir. 1990) (disability termination not 4 arbitrary despite SSDI disability); Davis v. First Reliance Standard Life Ins. Co., 277 F. App'x 5 737, 738 (9th Cir. 2008) (recognizing that SSDI award was not binding on court in reviewing plan 6 administrator's determination of disability benefits). Moreover, the SSDI denial occurred on 7 August 21, 2012, and was based upon medical reports submitted in July 2012. See AR 3650. 8 Thus, the SSDI determination is somewhat dated for the purpose of determining Plaintiff's 9 eligibility for disability benefits under the "any occupation" standard as of October 6, 2013. 10 Finally, Defendant has cited only to an incomplete copy of the SSDI denial letter and some emails 11 exchanged by the parties regarding Plaintiff's SSDI claim. See Opp. at 8-9. After a careful review 12 of the administrative record, the Court has been unable to find any written decision explaining the Northern District of California United States District Court 13 reasoning underlying the adverse SSDI determination. Ultimately, the Court gives only modest 14 weight to the adverse SSDI determination, as it was rendered over a year before the relevant time 15 period and presumably on the basis of a different administrative record and legal standard. 16 Accordingly, the Court finds that Plaintiff has adequately established she was "totally 17 disabled" under the "any occupation" standard of the plan. Defendant's determination to the 18 contrary is reversed. 19 III. CONCLUSION 20 For the foregoing reasons, the Court hereby GRANTS Plaintiff's motion for judgment. 21 The Court ORDERS Defendant to reinstate Plaintiff's benefits. In addition, the Court DIRECTS 22 the parties to (1) meet and confer regarding the amount of outstanding benefits and (2) by no later 23 than April 30, 2017, submit a stipulated proposed judgment to the Court. 24 IT IS SO ORDERED. 25 Dated: 3/31/2017 26 ______________________________________ HAYWOOD S. GILLIAM, JR. 27 United States District Judge 28 26