MARGARET MORROW, District Judge
On March 5, 2008, Frank Porco filed this action against the Prudential Insurance Companies of America ("Prudential") and Superior Industries International, Inc. Long Term Disability Plan (the "Plan"). Porco alleges that he was denied long-term disability benefits to which he was entitled under the Plan, a long-term disability ("LTD") benefit plan established by his employer Superior Industries International, Inc. ("Superior"), and insured by Prudential. Porco seeks retroactive reinstatement of benefits with prejudgment interest and attorneys' fees. After reviewing the administrative record and considering the parties' trial briefs, the court makes the following findings of fact and conclusions of law. I. FINDINGS OF FACT A. The Plan 29 U.S.C. § 1001 B. Porco's Employment, Experience and Educational Background C. Initial Neurological Examina- tions, Surgery, Approval of Benefits D. Further Medical Evaluation and Finding of Total Disability E. Prudential's Surveillance of Por- co and Termination of Benefits Los An- geles Times F. Porco's Appeal and Prudential's Upholding of the Denial of Bene- fits G. Porco's Attempted Second Appeal infra, II. CONCLUSIONS OF LAW A. Standard of Review de novo Thomas v. Or. Fruit Prods., Co., 228 F.3d 991 994 Kearney v. Standard Ins. Co., 175 F.3d 1084 1090 Firestone Tire Rub- ber Co. v. Bruch, 489 U.S. 101 115 109 103 L.Ed.2d 80 de novo de novo. Muller v. First Unum Life Ins. Co., 341 F.3d 119 124 Kearney, B. Burden of Proof Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321 1331 Levinson, Id. Levinson Id. Levinson Id. Levin- son Miller v. Metro- politan Life Ins. Co., 925 F.2d 979 985 Cossio v. Life Ins. Co. of North Amer- ica, 240 F.Supp.2d 388 392 Muniz v. AMEC Const. Manage- ment, 2009 WL 866843 Farley v. Ben- efit Trust Life Ins. Co., 979 F.2d 653 Horton v. Reliance Standard Life Ins. Co., Far- ley before Prudential Silver v. Executive Car Leasing Long-Term Disability Plan, 466 F.3d 727 731 Taft v. Equitable Life Assurance Soc'y, 9 F.3d 1469 1472 Kearney, 175 F.3d at 1090 29 U.S.C. § 1133 Besser v. Prudential Ins. Co. of America, 2008 WL 4483796 Besser, de novo Id. Besser Kearney, id. Besser de novo, Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, de novo. Id.; Silver, Mongeluzo Mongeluzo Quesinberry v. Life Ins. Co. of North America 987 F.2d 1017 1025 de novo de novo Id. Mongeluzo Id. Quesinberry, 987 F.2d at 1027 Thom- as v. Continental Cas. Co., Mongeluzo Kearney, 175 F.3d at 1084 Mon- geluzo, 46 F.3d at 944 Opeta v. Northwest Airlines Pen- sion Plan for Contract Employees, Mongeluzo, Quesinber- ry Ross v. Prudential Ins. Co. of America, Hall v. UNUM Life Ins. Co., Id. Quesinberry, and Quesinber- ry, 987 F.2d at 1027 de novo Monge- luzo, 46 F.3d at 943-44 C. Whether Porco Was Totally Dis- abled Under the Terms of the Plan at the Time of the Denial of Benefits McOsker v. Paul Revere Life Ins. Co., 279 F.3d 586 589 Hanusik v. Hartford Life Ins. Co., 2008 WL 283714 Grosz- Salomon v. Paul Revere Life Ins. Co., 237 F.3d 1154 1163 Dishman v. UNUM Life Ins. Co. of America, 269 F.3d 974 988 Shaw v. International Association of Machinists, id.; Dishman, Fleming v. Kemper Nat. Services, Inc., 373 F.Supp.2d 1000 1012 id. 28 U.S.C. § 1961 Blankenship v. Liberty Life Assurance Co. of Boston, 486 F.3d 620 627 Grosz-Salomon v. Paul Revere Life Ins. Co., Id. Blanton v. Anzalone, 813 F.2d 1574 1576
Administrative Record ("AR") at 581; Complaint, ¶ 4; Answer, ¶ 4. For convenience, all citations to the administrative record omit the "PRU/PORCO" prefix and refer only to the page number.
Complaint, ¶ 3; Answer, ¶ 3.
Id. The plan documents submitted do not indicate the number of months of payments after which an employee must establish that he cannot perform "any" occupation; they simply state, "After ___ of payments. . . ." ( Id.) All letters sent to Porco, however, indicate that the time period was 24 months. ( Id. at 44, 134, 142.)
This refers to the "Dictionary of Occupa- tional Titles" published by the U.S. Depart- ment of Labor in 1991. ( Id. at 290.)
Plaintiff's Revised Opening Trial Brief ("Pl.'s Brief") at 18; Defendants' Opening Trial Brief ("Def.'s Brief") at 12.
Plaintiff's Responsive Trial Brief ("Pl.'s Reply") at 4.
Under paragraph (h)(4), this requirement applies to "a plan providing disability bene- fits."
Porco notes that the ERISA statement provides for a third voluntary appeal on denial of a second appeal with another 180-day window, and argues his second appeal was timely because it was filed within the combined time limit for the second and third appeals. The court does not find this argument persuasive. The only source of the right to file a third appeal on denial of the second appeal is the ERISA statement that Porco urges does not control.
Although the claimant's inability previ- ously to proffer it is a circumstance favoring consideration of evidence not before the ad- ministrator, the Ninth Circuit has cautioned in an unpublished opinion that "[t]here is no requirement that the proponent of the evi- dence demonstrate inability to present it earli- er." Beaty v. Prudential Ins. Co. of America, 313 Fed.Appx. 46, 48 (9th Cir. 2009) (Un- pub.Disp.).
As the court finds in Porco's favor with- out reviewing the material, he is in any event not prejudiced by the determination that con- sideration of it is inappropriate.
Id. at 27, 31, 96-97, 169, 212, 242.
The court rejects Porco's efforts to establish the precise weight of the pipe based on information of questionable reliability obtained from the internet. (Pl.'s Reply at 17.)
AR at 31 (noting Porco's "smooth stride"); 243 ("normal gait").
Id. at 361, 388. The court does not address Porco's urinary and bowel difficulties, as there was no evidence in the record that these issues added to his inability to work.
Id. at 409-411 ("The video I watched clearly shows a man capable of physical activity without difficulty"); ("The man on the video surveillance has no restrictions"); ("He was observed on the surveillance to be functioning easily"); ("[T]he video surveillance does not show him suffering"), etc.
See, e.g., id. at 411 ("He can function with pain medication and self-catheterization (if he is indeed fol[l]owing such treatment)"); id. at 410 ("If he truly is self catheterizing . . .").
Id. at 388. Porco suggests that Dr. Part-now did not consider Dr. Chiang's records in conducting his review. (Pl.'s Reply at 11.) It is unclear whether this is the case; although the records were received by Prudential prior to Partnow's review, his report does not specifically reference them. If Dr. Partnow conducted his review without considering Dr. Chiang's records, this would strengthen the court's conclusion regarding its reliability.
The only evidence in the record that potentially indicates a change in condition is the surveillance footage. The court has explained why it believes this evidence is entitled to limited weight.
1. The Plan is governed by the Employee Retirement Income Security Act of 1974, et seq. ("ERISA"), as it is an employee benefit plan funded by plaintiff's employer. 2. Prudential acted in the capacity of Plan Administrator. 3. Under the Plan, an employee is consid- ered disabled and entitled to payments when the employee is "unable to per- form the material and substantial duties of [his] regular occupation due to [his] sickness or injury% or more loss in [his] indexed monthly earnings due to that sickness or injury." After 24 months of payments, an employee is considered disabled if "due to the same sickness or injury," he is "unable to perform the duties of any gainful occupation for which [he] is reasonably fitted by edu- cation, training or experience." "Gain- ful occupation" is defined as "an occupa- tion, including self employment, that is or can be expected to provided [an em- ployee] with an income equal to at least 80% of [his] indexed monthly earnings within 12 months of [his] return to work." 4. Porco was employed by Superior as a "Senior Corporate Quality Warranty Engineer" or "Corporate Warranty, Quality Engineer" from January 21, 1998 through April 10, 2002. 5. According to Superior's job descrip- tion, the essential functions of Porco's position included receiving, evaluating and documenting "customer warranty returns, assembly plant returns, and customer tested parts," as well as main- taining records regarding such items. Porco asserts, however, that the job in- volved testing returned automotive parts to determine if they were defective and covered by warranty. He maintains that the job required the use of "ladder, pallet jack, wheel racks, wheel water testing/balancing" and regular lifting of 35-40 pound wheels. 6. Porco graduated from California State University in 1975 with a B.S. in busi- ness administration. According to the information he gave Prudential, Porco worked as a "service advisor" or "service manager" at "various automobile dealer- ships" from 1988-1998. There is no information in the record regarding his employment between 1975 and 1988. 7. On February 25, 2002, Porco was seen by Dr. Pablo Lawner for a neurological consultation based on a history of inter- mittent back pain that was exacerbated by sitting, and that had gradually be- come more severe. Lawner conducted an MRI of Porco's lumbar spine, and saw a "fluid filled cavity" that he found "extremely interesting." Lawner con- cluded that Porco's diagnosis was "likely . . . [an] aneurysmal bone cyst," and rec- ommended a three dimensional CT scan of the area. Following this procedure, on March 25, 2002, Lawner again diag- nosed a possible aneurysmal bone cyst. He recommended a surgical procedure described as "partial decompressive lam- inectomy," "resection of cyst," and "local bone grafting." Porco agreed to un- dergo the surgery, and the procedure was scheduled for April 11, 2002. 8. Porco ceased work on April 9, 2002. 9. During the procedure, the surgeons concluded that Porco did not have a cyst. Rather, the surgeons encountered leaking spinal fluid and "a tangle of [nerve tissue] which corresponded ana- tomically to the surgical area where the presumed cyst was." The doctors de- cided to discontinue the procedure at that point. 10. At a post-surgical follow-up appoint- ment on April 26, 2002, Lawner noted that the wound from the surgery had healed well, but that Porco was experi- encing "symptoms in his buttocks." He opined that Porco should undergo a "lumbar myelogram in order to deter- mine the details of th[e] pathology" dis- covered during the surgery, "which ap- pear[ed] to be some sort of meningocele without dural covering, but with bony coverage." 11. Based on the myelogram, Lawner di- agnosed "spinal stenosis from a posteri- or compression at the L2-3 level." At a further consultation on May 10, 2002, Lawner noted that Porco "continue[d] to have symptoms." He recommended that Porco seek a second opinion from Dr. Patrick Johnson, as the diagnosis indicated that "a more extensive proce- dure with probably a significant amount of dual grafting" would be required. 12. Porco saw Johnson on June 20, 2002. Porco described his symptoms to John- son as follows: "constant pain" in his buttocks, occasional "shooting pain up the right leg," pain in the left and right calves, lancinating pain in the lateral right calf, "some degree of pins and needles throughout posterior thighs and calves," and unspecified "symptoms in the anterior ankles." Porco reported that the pain was not relieved by pain killers and prevented him from walking longer than ten minutes. Johnson not- ed that Porco could "do all the normal activities of daily living," though with discomfort. Porco experienced "diffi- culty" sitting more than ten minutes at a time; standing was "slightly more com- fortable at a thirty-minute duration." Johnson recommended "not invading the myelomeningocele itself, but rather per- forming a decompressive surgery pend- ing further evaluation." 13. On June 21, 2002, Lawner certified that Porco was unable to perform his regular work due to a "bone cyst" in the lumbar spine resulting in "back pain." 14. On July 19, 2002, Prudential notified Porco by letter that it had approved his claim for LTD benefits under the Plan, effective July 10. 15. On September 26, 2002, Porco's pri- mary care physician, Dr. David Aframi- an, wrote Prudential. He stated that Porco had been "suffering chronic low back pain" for the past year, and was taking vicodin, naprosyn, and robaxin for the pain. Aframian advised that Porco's "restrictions" were no lifting over five pounds, and no bending, climb- ing, pushing or pulling. 16. In October 2002, Porco began to re- ceive Social Security disability benefits. 17. On December 10, 2002, Porco consult- ed Dr. Susan Yadegar for a third opin- ion. Yadegar noted that Porco report- ed his back pain was "worse" and that he was experiencing "shooting pain down the legs." Yadegar diagnosed Porco with "tethered cord syndrome." She noted that this diagnosis was "com- pletely different" than the Lawner's and Johnson's diagnoses; nonetheless, she was "somewhat confident" about the di- agnosis, and proposed a "wide-open lam- inectomy." She recommended that Porco be seen by her "mentor," Dr. Gordon McComb. 18. Porco apparently did not pursue Yadegar's suggestion that he see McComb. Instead, he began treatment with a chiropractor, Dr. Wayne Press. 19. On April 29, 2003, Prudential re- viewed Porco's file. The claim manager noted that Porco's "job duties are medi- um in nature[.] Although medical infor- mation in file is limited[,] it is reasonable that he would be impaired from his me- dium duty occ[upation]." The claim manager suggested further inquiry re- garding Porco's "functional status" and medications; whether additional surgery was planned; whether Porco was still limited to lifting five pounds; and whether he was interested in transfer- ring to a less physical occupation. 20. On June 26, 2003, Porco advised Pru- dential he was not receiving medical treatment from any doctor other than his primary care physician, Dr. Arbole- da. On July 7, 2003. Dr. Arboleda told Prudential he had not seen Porco since February. 21. On July 11, 2003, a Prudential claims manager reviewing Porco's file indicated that "previous medical [records] in file support[ed] impairment from [ ] medium duty occ[upation] due to the presence of the cyst in his spine." The claims man- ager noted that Porco had not seen a physician in the past six months and questioned whether he was receiving ap- propriate care. On August 8, 2003, a claims manager reported that the "medi- cal [records] support[ed] impairment from reg[ular] occ[upation]." 22. On October 16, 2003, Porco saw Dr. Rafael Quinonez for a neurological con- sultation. Quinonez discussed the prior doctors' studies with Porco; he noted that new studies would be required "be- fore final recommendations [could be] made." He requested spinal x-rays and MRI's. After reviewing these items, Quinonez noted in his records of a Janu- ary 22, 2004 follow-up consultation that "[t]he study reveals very complex find- ings at the L2-L3 level." He stated that "the radiologist called this possible pseudomeningocele," and that he ob- served a possible bone cyst, "a cluster of blood vessels . . . suspicious of arteriove- nous malformation," and "multiple he- mangiomas" at other levels of the spinal column. Quinonez also noted that Porco reported "severe pain at level 10 most of the time with pain radiating from the mid lumbar area to both hips and to both lower extremities." He recom- mended either a spinal angiogram or a CT angiogram of the spine to "evaluate the abnormal blood vessels," and decom- pression and stabilization of the spinal canal at the L2-L3 level. Overall, Qui- nonez found that Porco presented a "very complex spinal problem." 23. On March 24 and 29, 2004, Prudential sent Porco letters indicating that, as of July 9, 2004, he would have to establish, among other things, that he was not able to perform the duties of any job for which he was "reasonably fitted" by "ed- ucation, training, or experience" in order to continue to qualify for LTD benefits. The letters included various forms for Porco to fill out and return. At some point prior to this, Porco had relocated to Burleson, Texas. 24. On April 1, 2004, Porco consulted Dr. Roger Blair. Porco reported a wide variety of pain and other symptoms to Blair: "chronic sharp jolts mainly down the right leg"; "a vibrating sensation intermittently across the legs"; inability to bend his ankles; "very deep" pain in [the] legs and stomach"; a "constant" "sensation of someone cutting into his sacrum with a knife and placing iodine on it," which did not respond to vicodin but was occasionally relieved by deep massage; and "severe headaches that wrap around his forehead and behind his eyes" "1 to 3 [times] per week to 1 to 2 [times] per month." Blair diagnosed back pain and "probable meningomyelo- cele." He recommended an MRI of Porco's lumbar spine, and prescribed neurotonin for Porco's nerve pain. 25. After the MRI was conducted, Blair observed "evidence of severe central ca- nal stenosis at L2-3," "mild central ca- nal stenosis at L3-4 and L4-5," and "probable hemangioma at L5." Blair's diagnosis at a follow-up visit on April 21, 2004 was "back pain," "severe lumbar stenosis at L2-3," and "possible menin- gomyelocele." During this visit, Porco advised that he had stopped taking the neurotonin because he believed it pro- duced headaches. Blair noted: "At this time I do not think the patient can return to his regular work duties." He recommended that Porco "get another neurosurgical opinion regarding his se- vere lumbar stenosis." 26. Porco returned the forms he received from Prudential in March on May 3, 2004. They included a form filled out by Blair, indicating that Porco was "un- able to work" and would continue to be unable to work "if his condition [was] inoperable." Blair stated that Porco was taking vicodin and ibuprofen and using lidocaine patches for back and leg pain. On forms that he personally completed, Porco stated that it had be- come difficult to put on his pants and shoes due to pain, and that he some- times required a cane to walk if he was having particular trouble with his an- kles. He reported significant difficul- ties sleeping. He stated that he drove up to ten miles 5-6 times per week, and could sit as a passenger is a car for up to 100 miles depending on the severity of his pain. Porco indicated that he spent 15 minutes taking out the trash and recycling and less than one hour per week on other household chores, includ- ing dusting, laundry, and "light garden- ing work" within the five pound weight restriction imposed by his doctor. 27. On May 21, 2004, Prudential sent Porco a request for updated medical rec- ords and a work history to complete and return. On June 8, 2004, Prudential requested updated medical records from Dr. Blair. The records were faxed to Prudential on July 6, 2004. 28. On June 28, 2004, Porco was seen by Dr. Andrea Halliday. Halliday noted that Porco's "chief complaint" was "elec- trical shocking, stabbing-like pain that radiate[s] bilaterally from his buttocks into the posterior thighs, posterior legs, to his first toe." Porco rated the pain at level 7-8 of ten. Halliday noted that Porco did "not have much back pain per se," and that "sitting, standing, lying[,] . . . walking, and bending tend to aggra- vate his symptoms." She stated that he "denie[d] bowel and bladder inconti- nence, however, he does have some drib- bling." She noted that Porco was taking ibuprofen and vicodin, and using Lico- derm patches. Halliday examined Por- co's April 2004 MRI and noted stenosis, possible meningocele, and clumping of nerve roots at the L2-3 level, as well as stenosis at the L3-4 level. She recom- mended a myelogram and CT scan to facilitate further analysis, and noted that Porco was "likely to require surgical intervention" at the L2-3 level, possibly including "duraplasty and closure of the meningocele." Prudential was in- formed of the results of Halliday's con- sultation. 29. On July 7, 2004, Prudential sent Por- co a letter indicating that it had complet- ed a review of his claim and determined that he was totally disabled. The let- ter stated that Porco would continue to receive benefits, and noted that Pruden- tial would contact Porco and his physi- cian for updated medical information "[p]eriodically." 30. On July 21 through 23, 2005, the Mer- rill Group, a private investigation firm, conducted video surveillance of Porco at Prudential's request. Prudential ap- parently decided to conduct the surveil- lance after being contacted by an "anon- ymous informant." 31. The surveillance footage opens with several uneventful shots of houses, a small lake, and dirt roads in rural Texas. Eventually, it shows an individual whom the parties agree is Porco briefly walk- ing across a small dusty area of yard between a house and a mobile home. Porco appears to move easily and walks with a loping gait that might possibly be associated with being under the influ- ence of strong painkillers. 32. Defendants focus in particular on two scenes from the surveillance footage. The first, approximately five and a half minutes in, shows Porco carrying what appears to be a floppy white pipe, ap- proximately fifteen feet long, over his right shoulder for approximately forty- five seconds before handing it to another individual who is partly visible behind a tree. The pipe appears to be made of lightweight plastic, and, although the court cannot determine its precise weight, its pronounced floppiness indi- cates that it is not particularly heavy. 33. The second scene, approximately ten minutes and ten seconds into the foot- age, shows Porco pulling a small wheel barrow with his right arm for approxi- mately thirty seconds before disappear- ing behind the house. The wheel bar- row is full but the nature of its contents cannot be determined from the video. The court cannot determine the weight of the wheel barrow, but Porco appears to pull it with ease. 34. Following receipt of the surveillance video, on September 1, 2005, Pruden- tial's Dr. Richard Day conducted a clini- cal review of Porco's file; this encom- passed a review of records from Drs. Lawner, Johnson, Aframian, Yadegar, Blair, and Halliday, as well as the sur- veillance video. Day reached the follow- ing conclusions: (1) Porco suffered from spinal stenosis related to probable men- ingomyelocele, but his present restric- tions of no bending and no lifting more than five pounds "appear[ed] to be over- ly restrictive" "[b]ecause there [were few] neurological finding[s]," and "[i]t [was] reasonable that [Porco] [could] lift 10-25 pounds on occasion"; (2) although Porco reported headaches, possibly re- sulting from "cerebral spinal fluid leak- age," he appeared able to move and carry pipes without difficulty on the vid- eo; (3) Porco's "[s]tanding activities" "could be limited," but he should be able to tolerate "[s]itting activities alternat- ing with standing activities" based on "the lack of complaints noted during physical examinations"; and (4) "[t]he surveillance evidence . . . support[ed a finding] of functional capacity [for] sed- entary to light work." 35. On September 12, 2005, Prudential decided to refer Porco's claim to a spe- cialist to review his employability. That same day, it requested the names of Porco's current treating physicians. It repeated the request on October 6. Porco provided the information on Octo- ber 12, indicating that he was currently under the treatment of Drs. Michael Chiang and Dennis Cook. 36. Dr. Day contacted both physicians. On October 28, 2005, he sent the surveil- lance footage of Porco to Chiang, with a request that he comment on it; Chiang apparently did not comment. Whether any response was received from Cook is not apparent in the record. Prudential did not obtain medical records from ei- ther doctor at the time. 37. On September 19, 2005, Prudential retained Malcolm Howard, MS, a "voca- tional consultant" to perform an "em- ployability assessment" of Porco. Pru- dential instructed Howard to base his assessment on Day's conclusions and the "Vocational Rehabilitation Education and Employment History" form com- pleted by Porco. Howard completed the assessment on November 7, 2005. He spent a total of 9.1 hours preparing it. 38. Howard concluded that Porco's pre- disability position of "Corporate War- ranty Quality Engineer" was consistent with a DOT designation of Quality Control Technician. Howard based this conclusion on the fact that Porco per- formed quality control functions using procedures and methods devised by oth- ers rather than developing procedures himself. Howard input this designa- tion and the designations for Porco's work for various automobile dealerships into a computer program, and made various adjustments, including an ad- justment for "claimant's orientation to `people' (worker function rating), adding `instructing' and `supervising,' presumed to be inherent [in] pre-disability respon- sibilities and proclivities." Howard classified the maximum physical de- mands Porco could perform as "light," which he defined as "exerting up to 20 pounds of force occasionally, and/or 10 pounds of force frequently," "walking or standing to a significant degree," "sit- ting most of the time" with "pushing and/or pulling of arms or leg controls," or "constant pushing and/or pulling of materials even though the weight of those materials is negligible." 39. This resulted in 75 possible "occupa- tional matches," which Howard reduced to 15 following review. Of these, How- ard's report listed six as appropriate for Porco: Quality Control Technician; Au- tomobile-Repair-Service Estimator; Service Manager; Superintendent, Maintenance; Shop Estimator; and Claims Clerk. Howard conducted a "labor market survey" of employment opportunities in the Los Angeles area. He contacted ten employers identified via "[i]nternet directories" and want ads; he considered seven of these "informative." 40. Based on his research, Howard con- cluded: "[W]ork as a Service Manager with either an automobile sales/service dealership or repair facility would ap- pear in line with both Mr. Porco's quali- fications and physical ability to perform. He would likely need to be selective regarding dealerships pursued to ensure that the structure of existent positions allows adequate flexibility to sit/stand in line with his apparent need for position changes. Of 7 informative employer contacts regarding such positions, all 7 indicated that he would qualify for con- sideration based on his prior experience performing such work, although 1 em- ployer indicated that they hire from within from service advisor staff when such openings occur." Howard noted that "[s]tanding/walking was indicated to range from approx. 25%-90% of work- days, with 3 of 7 [employers] indicating 50 % or less. Hours per day would range from 10-12 hours. Of 5 employ- ers commenting, all 5 indicated that these positions would not require repeti- tive bending or any lifting demands. Of 4 employers commenting, compensation, indicated as essentially commission- based across employers, ranged from $65,000-$108,000/year." Howard noted that a "Service Manager" position re- quired a "light" level of physical exer- tion. 41. On November 16, 2005, having re- viewed Howard's report, a Prudential claims manager concluded that, consid- ering the occupations Howard had iden- tified and Porco's physical limitations, Porco "would likely need to be selective regarding a potential employer, but it is clear that employment opportunities ex- ist within his local labor market that can be performed within his current residual functional capacity." 42. On December 23, 2005, Prudential de- cided to terminate Porco's benefits, ef- fective January 1, 2006. It based this decision on the conclusion that Porco was "no longer precluded from perform- ing [the] material and substantial duties of [a] regular occupation," as "alternate gainful sed[entary] light occupations ha[d] been identified." Prudential sent Porco a letter advising him of the decision. The letter summarized Pru- dential's review of Porco's medical histo- ry. It also referenced the surveillance video and the report of "an anonymous person who indicated that [Porco] [was] allegedly not functionally impaired by [his] medical condition." Echoing Dr. Day's conclusions, the letter stated that Porco's "restrictions to avoid bending and lifting over 5 pounds appear[ed] to be overly restrictive." Prudential ac- knowledged that it was "reasonable" for Porco to avoid bending and lifting, but asserted that he could lift 10-25 pounds "on occasion" and that he should be able to tolerate "[s]itting activities alternat- ing with standing activities." Finally, Prudential identified five occupations it believed Porco could perform, given his current skills and restrictions: industrial engineer; industrial engineering techni- cian; transportation, storage, and distri- bution manager; occupational health and safety specialist and technician; and first-line supervisor/manager of mechan- ics/installers/repairers. These posi- tions differed from those discussed in Howard's report. 43. On January 5, 2006, Porco wrote Pru- dential, asserting that Prudential's re- view had failed to take into account the results of a November 3, 2005 appoint- ment with Dr. Cook in which Porco's urinary incontinence and self-catheriza- tion were discussed. Porco also indi- cated that he had seen Dr. Chiang on December 21, 2005 and January 4, 2006 "for severe leg and lower back pain on both sides and the continued worsening bowel problem." Porco requested that Prudential review its determination in light of this information. On January 20, 2006, Prudential notified Porco that it had received and would process his request for reconsideration. Porco's ap- peal thus commenced. 44. Prudential obtained the medical rec- ords from Cook's office referenced by Porco. The records indicate that Porco saw Cook on September 8, 2005 for "problems with . . . urinary inconti- nence." Cook diagnosed "probable neurogenic bladder dysfunction, poor bladder emptying, and urinary inconti- nence." To facilitate further analysis, Cook prescribed a urine culture, renal ultrasound, "KUB," and cytoscopy. He noted that Porco might "need to be started on intermittent catheteriza- tion." On November 3, 2005, Cook "instructed [Porco] on performing self intermittent catheterization," and ad- vised him to perform the procedure three times a day. After a Novem- ber 17, 2005 follow-up appointment, Cook reported that Porco was "doing well" and "[n]o longer ha[d] inconti- nence." Cook noted Porco would likely have to continue with intermittent cath- eterization. 45. Prudential also obtained medical rec- ords from the consultations with Chiang referenced in Porco's letter. In a De- cember 21, 2005 record, Chiang noted that Porco "continue[d] to have chronic lower back pain," and recorded his com- plaints of leg pain. Chiang observed that Porco "still has pain on a regular daily basis. . . . [He] was described to be uncomfortable, even sitting here for a short duration and he has constantly moved around in the chair to find a comfortable position as sitting very long in one position aggravates his low back pain." Chiang noted that Porco "com- plain[ed] of chronic constipation . . . worsened by Vicodin." Chiang pre- scribed medication for this condition. 46. On January 4, 2006, Chiang recorded Porco's complaints of "shooting electri- cal pain" in his lower back and legs, and pain when sitting or standing for extend- ed periods of time. He noted that Porco was "losing more and more control of [his] bladder function" and sometimes suffered from urinary incontinence; Porco's "ongoing constipation" was "slightly better." Chiang diagnosed Porco with "chronic pain syndrome" and noted that he "still suffer[ed] from quite a bit of pain." He recommended that Porco see Blair for a follow-up neurolog- ical consultation, noting that Porco might "be a candidate for proceeding with surgical intervention at this time as [he] is experiencing more neurological deficit possibly as a result of nerve im- pingement." Chiang considered Por- co's pain a "worsening issue." 47. On February 2, 2006, Prudential sub- mitted Porco's medical file to a company known as "MES Solutions" for review by a physician specializing in neurolo- gy. Dr. Michael Partnow, a neurolo- gist, reviewed the file. 48. Partnow concluded that Porco did not have any functional impairments as of January 1, 2006, based on his review of the medical records and surveillance footage. Partnow stated that "[a]t no time ha[d] [Porco] been found to have abnormality on exam other than incon- sistent findings of a deep tendon reflex decrease and sensory decrease on his right big toe. His pain is treated with medicine and he told the urologist he was no longer incontinent." Partnow opined that "[i]f there were to be any restriction, it would be in terms of his being permitted to vary his activity from standing to sitting and back periodical- ly," but reiterated that "[t]he man on the video surveillance has no restric- tions." He noted that "[i]t is not clear that [Porco] is receiving any treat- ment other than his indication that he is self-catheterizing, and his seeming indi- cation of using analgesic medication." Partnow further observed: Mr. Porco may be having chronic pain. The MRI reports, and their interpreta- tions by attending specialists are incon- sistent. However, there does seem to be a common thread throughout that spinal stenosis is present. His MRI finding is a chronic one, most likely that of spinal stenosis. . . . [Porco] consistent- ly complains of pain radiating to both legs. He has minor findings on exams performed by various doctors, although these findings are inconsistent. Also, the video surveillance does not show him suffering while performing physical ac- tivities around the exterior of a dwell- ing." 49. On March 1, 2006, Prudential decided to uphold the denial of benefits. The reasons for the decision, as outlined in a March 1 letter to Porco, were consistent with Partnow's conclusions. The let- ter advised Porco that he had the right to appeal the decision to Prudential's Appeals Unit; it noted that any appeal had to be filed within 180 days of the date of the letter. The letter stated that once he had completed an adminis- trative appeal, Porco could also pursue an appeal at the district court level; it stated that a second appeal to Pruden- tial was voluntary, and that the "decision . . . whether to file a second appeal w[ould] not affect [his] right to sue un- der ERISA." 50. Porco's counsel submitted a letter to Prudential on February 20, 2007, "de- mand[ing] reprocessing of the disability claim." With the letter, counsel sub- mitted additional evidence not previous- ly in the administrative record before Prudential. 51. On March 15, 2007, Prudential indi- cated that it would not consider the ap- peal, as it was submitted more than 180 days after the March 1, 2006 letter had been sent. Because the court con- cludes below, Part II. C, that it should decline to exercise its discretion to consider the material submitted with the March appeal, it does not describe that material here. 52. Porco filed this action on March 5, 2008. 53. Any findings of fact that are deemed to be conclusions of law are incorporated herein as such. 54. The Plan is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended, 29 U.S.C. §§ 1001 et seq. 55. "[D]istrict courts must review [ERISA] claims [challenging a denial of benefits] unless the discretion to grant or deny claims is `unambiguously retained' by a plan administrator or fi- duciary." , (9th Cir. 2000) (citing , (9th Cir. 1999) (en banc)); see also , , S.Ct. 948, (1989) (the court reviews challenges to an ERISA plan's denial of benefits "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan"). Here, the parties agree that the applicable standard of review is 56. "[T]he District Court's `de novo re- view of the parties' submissions' and resolution thereof, can best be under- stood as essentially a bench trial `on the papers' with the District Court acting as the finder of fact." , (2d Cir. 2003); see also 175 F.3d at 1094-95 (holding, in an ERISA disability benefits case, that "[a] majori- ty of us conclude that, in its discretion, . . . the district court may try the case on the record that the administrator had before it"). 57. The parties dispute which of them has the burden of proof in this case. Porco argues that "because LTD benefits were paid until December 31, 2005, with no evidence that [his] condi- tion changed for the better," defendants bear the burden of showing that he was no longer disabled at the time Pruden- tial terminated his benefits. Porco cites , (11th Cir. 2001), in support of this position. In the court concluded that be- cause plaintiff submitted evidence that he was totally disabled, thus "sa- tisf[ying] his obligations under the terms of the plan," the defendant "had to pro- duce evidence showing that Levinson was no longer disabled in order to termi- nate his benefits." Although the court noted that the plan ad- ministrator objected to this shifting of the burden of proof, it did not address the objection and merely noted that the plan participant had submitted some evi- dence that re was totally disabled under the terms of the plan. The court shifted the burden to the defen- dant after concluding that plaintiff had "satisfied his obligations under the terms of the plan." Here, the terms of the Plan obligated Porco to submit satisfactory proof of continuing disability at Prudential's request. Whether Porco satisfied this obligation to sub- stantiate his continuing disability ade- quately is the ultimate issue the court must decide. 58. Because the terms of the Plan place the burden of proving continuing disabil- ity on the participant, as even the court acknowledged, and because Porco's satisfaction of that obligation is the issue the court must decide in this action, the court finds that Porco has the burden of proof. See , (6th Cir. 1991) ("Plaintiff implies that once disability benefits are conferred, the burden of proof lies with the insur- ance company to prove that the employ- ee can return to her former regular employment. However, under the terms of the Plan, it is the employee who must continue to supply on demand proof of continuing disability to the sat- isfaction of the insurance company"); , n. 2 (D.Md. 2002) ("Courts have held that policy lan- guage requiring an insured to submit `proof of continued disability' shifts the burden of proof to the insured"); see also No. CV-07-8066 CAS (AJWx), , *5 (C.D.Cal. Mar. 30, 2009) ("The parties dispute which party bears the burden of proof in this case. Generally, a plaintiff suing for benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B), must establish his enti- tlement to benefits. See , 658 (8th Cir. 1992); see also 141 F.3d 1038 (11th Cir. 1998) (citing ). Muniz attempts to argue that, as here, where an insurer seeks to termi- nate disability benefits as opposed to refusing to award them in the first place, the burden of proof shifts to the defendant. This is unsupported by case law, as numerous courts, including sev- eral within this circuit, have consistently held that the burden of proof remains with the plaintiff in just such a case" (collecting cases)). 59. a second threshold issue the court must address is the parties' dispute con- cerning the materials submitted with the February 20, 2007 appeal. As noted, Prudential denied Porco's initial appeal on March 1, 2006. At that time, it sent Porco a letter stating that he had 180 days within which to submit a second appeal. It noted that Porco could pro- ceed directly to district court, and that his "decision on whether to file a second appeal w[ould] not affect [his] right to sue under ERISA." Porco attempted to file a second appeal on February 20, 2007, which Prudential denied as un- timely. The parties dispute whether the court should consider the approximately 100 pages of material submitted with Porco's second appeal. 60. Porco frames the question as whether the material is "part of the administra- tive record." Defendants lodged the material as part of the administrative record on January 16, 2009, the same day they filed their opening trial brief. The proper question is not whether the records are part of the administrative record, however, but what consideration the court should accord them given that they were not part of the administrative record at the time of the benefits denial that is the subject of this appeal. See , n. 2 (9th Cir. 2006) ("In general, a district court may consider only evidence within the administrative record at the time of the administrator's decision," citing , (9th Cir. 1993)); ("If a court reviews the administrator's decision, whether de novo . . . or for abuse of discretion, the record that was before the administrator furnishes the primary basis for review"). 61. Prudential's March 1, 2006 denial of Porco's initial appeal is the decision that Porco has appealed to this court. The complaint makes no mention of, and does not challenge, Prudential's refusal to consider his February 20, 2007 ap- peal. Notwithstanding this fact, Porco argues in his responsive brief that it was "error" for Prudential to refuse to con- sider the second appeal. The court, however, finds that Prudential did not err in refusing to consider the second appeal. 62. requires that an ERISA plan provide an appeal process. It states: "In accordance with regula- tions of the Secretary, every employee benefit plan shall . . . afford a reason- able opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appro- priate named fiduciary of the decision denying the claim." Pursuant to the authority granted by this provision, 29 C.F.R. § 2560.503-1 sets forth procedur- al requirements to ensure a "full and fair review." Among these is a require- ment in paragraph (h)(3)(i) that the ap- peal process provide a claimant "at least 180 days following receipt of a notifica- tion of an adverse benefit determination within which to appeal the determina- tion." 63. Prudential satisfied this requirement when it afforded Porco the opportunity to appeal the initial decision." Pruden- tial's claims procedures, set forth in a document designated "ERISA State- ment," also provide for a second and third opportunity to appeal, each with a 180-day filing period following notice of the determination. Adhering to its procedures, Prudential's March 1, 2006 letter to Porco notified him of the 180- day time limit for filing a second appeal. It also notified him that he had the option of pursuing an appeal before the district court rather than filing a second appeal with Prudential. 64. Porco argues that the 180-day time limit should not apply to the second appeal, because the ERISA statement says that it is "not part of the Group Insurance Certificate" and is therefore not a "plan document." Porco relies on Civil No. 07-00437 SOM/BMK, (D.Haw. Sept. 30, 2008). In the district court held that an "ERISA statement" issued by Prudential was not a "plan document," and therefore did not vest discretion in a plan administrator. Consequently, it employed a standard to review Prudential's benefits decision. at *5. The court relied on the Ninth Circuit's holding in 175 F.3d at 1089, that "the default is that the admin- istrator has no discretion, and the ad- ministrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its deci- sion." See at *2. The ERISA state- ment's status as a plan document was relevant in because if the state- ment was not a plan document, it could not, under governing law, vest discretion in the plan administrator such that its benefits decisions were reviewed under a deferential standard. Porco appears to suggest that because the ERISA statement is not a "plan document," it cannot control the time limit for his second appeal, and he was therefore en- titled to file the appeal at any point. Nothing in the statutory or regulatory structure of ERISA, however, gives Por- co a right to file a second appeal before proceeding in district court, or imposes a minimum time period for doing so. The only sources of the right to file a second appeal to which Porco can point are the March 1, 2006 letter and the ERISA statement itself. Both of these clearly specified a 180-day limit on the filing of an optional second appeal. Porco does not identify any statutory or regulatory provision that entitles him to a second voluntary appeal. Absent such a provi- sion, the court concludes that Prudential was not required to consider Porco's untimely second appeal. 65. This does not, however, end the court's inquiry. As Porco has cited to the material submitted as part of the second appeal, the court must consider whether, in its discretion, it should con- sider the information in reviewing the March 1, 2006 decision despite the fact that it was not before the plan adminis- trator. Because the court's review is it has limited discretion to consid- er material not before the plan adminis- trator. 66. In 46 F.3d 938, 943 (9th Cir. 1995), the Ninth Circuit joined the Third, Fourth, Sev- enth, Eighth, and Eleventh Circuits in "permitf[ting] the admission, under care- fully circumscribed conditions, of new evidence that was not part of the record before the plan administrator" when the district court reviews a denial of benefits see also 466 F.3d at 731 n. 2 (citing ). In elab- orating on the standard a district court should apply in exercising its discretion to consider evidence not before the plan administrator, the court cit- ed , , (4th Cir. 1993): "[W]e . . . believe that the purposes of ERISA . . . warrant significant re- straints on the district court's ability to allow evidence beyond what was presented to the administrator. In our view, the most desirable approach to the proper scope of review under ERISA is one which balances the [] multiple purposes of ERISA. Consequently, we adopt a scope of review that permits the district court in its discretion to allow evidence that was not before the plan administrator. The district court should exercise its discretion, however, only when cir- cumstances clearly establish that addi- tional evidence is necessary to conduct an adequate review of the benefit decision. In most cases, where additional evidence is not nec- essary for adequate review of the ben- efits decision, the district court should only look at the evidence that was before the plan administrator . . . at the time of the determination." at 943-44 (alteration original). The court emphasized, how- ever, that "a district court should not take additional evidence merely because someone at a later time comes up with new evidence that was not presented to the plan administrator." at 944; see also ("[I]f the evidence is cumulative of what was presented to the plan administrator, or is simply better evidence than the claim- ant mustered for the claim review, then its admission is not necessary"); 7 F.Supp.2d 1048, 1056 (C.D.Cal. 1998) ("In every case there will always be relevant evi- dence that is not part of the administra- tive record. . . . was con- cerned that the purposes of ERISA would be frustrated by courts conduct- ing extensive fact-finding in routine cases"). Thus, "`in most cases,' only the evidence that was before the plan ad- ministrator should be considered." (citing ). 67. In 484 F.3d 1211, 1218 (9th Cir. 2007), the court, applying cited 's "non-exhaustive list of exceptional circumstances" in which the consider- ation of additional evidence may be nec- essary: "claims that require consideration of complex medical questions or issues regarding the credibility of medical experts; the availability of very limit- ed administrative review procedures with little or no evidentiary record; the necessity of evidence regarding interpretation of the terms of the plan rather than specific historical facts; instances where the payor and the administrator are the same entity and the court is concerned about impar- tiality; claims which would have been insurance contract claims prior to ERISA; and circumstances in which there is additional evidence that the claimant could not have presented in the administrative process." 68. The additional material submitted in support of Porco's untimely appeal in- cludes various medical records from Dr. Chiang's office for the period from June 6, 2004 to September 19, 2006; vari- ous additional medical records, including a neurological assessment by Dr. How- ard Morgan, a professor of neurosur- gery at the University of Texas' South- western Medical Center in Dallas, dated May 4, 2006; and a report regarding Porco's employability prepared on Sep- tember 27, 2006 by Barbara A. Dunlop, a certified rehabilitation counselor, at the request of Porco's counsel. 69. Here, the only potentially applicable circumstances that would warrant con- sideration of Porco's additional evidence are the complexity of the medical issues involved and the credibility of medical experts. Prudential's administrative procedures gave Porco the opportunity to supplement the administrative record, and he was not prevented from present- ing further evidence during the adminis- trative process. There is nothing indi- cating that the claim would have been an insurance contract claim prior to ERISA. Finally, although the payor and administrator are the same here, this is often the case in the review of a benefits decision, and the identity of the payor and administrator, by itself, does not provide a ground to consider addi- tional evidence, absent additional reason for concern regarding impartiality. See No. CV 05-2936-PHX-DGC, 2006 WL 2460919, *3 (D.Ariz. Aug. 23, 2006) ("Ad- ditional evidence is not necessarily ap- propriate every time an administrator and payor are the same party. As noted in 300 F.3d 1197 (10th Cir. 2002), `the administrator and the payor are often the same party for many ERISA benefit plans. If [dis- trict courts] were to adopt a blanket rule that the admission of additional evidence should be allowed whenever the same party is the administrator and payor, then it will not be the unusual case in which additional evidence is admitted.' at 1205. As noted in the language quoted above from there should be an identity between the ad- ministrator and payor reason for concern about impartiality. " (emphasis and alteration original)). On the present record, the fact that Prudential was both payor and administrator does not raise sufficient concerns regarding impartiali- ty to warrant the consideration of evi- dence not before it at the time it made the benefits decision. 70. Numerous physicians, however, com- mented on the complexity of Porco's spinal problem. While this complexity is a circumstance that might warrant consideration of additional medical evi- dence, the existing record documents consultations with and the opinions of numerous neurologists. The court be- lieves these records are sufficient to conduct an adequate review of Pruden- tial's decision. While further reports might be helpful, the report by Dr. Morgan is generally cumulative of the observations of the other neurologists. Given the substantial medical evidence already in the record, the court cannot say that the "circumstances clearly es- tablish that additional evidence is neces- sary to conduct an adequate review of the benefit decision." . It therefore declines to consider the additional mate- rial. 71. In determining whether Por- co was totally disabled at the time Pru- dential decided to terminate his benefits, the court begins with Prudential's deter- mination on July 7, 2004 that he was totally disabled under the terms of the plan. This is strong evidence that the medical evidence available to Prudential at the time indicated that Porco was totally disabled. See , (8th Cir. 2002) ("We are not suggesting that paying benefits operates forever as an estoppel so that an insurer can never change its mind; but unless information available to an insurer alters in some significant way, the previous payment of benefits is a circumstance that must weigh against the propriety of an insur- er's decision to discontinue those pay- ments"). 72. Indeed, the court's review of the evi- dence available to Prudential as of July 7, 2004, confirms that it strongly indicat- ed Porco was totally disabled. Although their diagnoses somewhat differed, mul- tiple neurologists — Drs. Lawner, John- son, Yadegar, Quinonez, Blair and Halli- day — all agreed that Porco suffered from a complex and unusual malady of his spine, most frequently identified as either myelomeningocele or spinal steno- sis. Throughout this period, Porco consistently reported to his physicians that he experienced severe pain in his legs or back. Among other things, Por- co reported "constant pain" in his but- tocks and "shooting pain" in his right leg to Johnson; shooting pain in his legs to Yadegar; "severe pain at level 10 most of the time" in his mid lumbar area, hips, and lower extremities to Qui- nonez; chronic, sharp pain in his right leg and a "constant" "sensation of someone cutting into his sacrum with a knife" to Blair; and a stabbing pain in his buttocks and legs at level 7-8 out of ten to Halliday. Doctors noted that Porco's pain was not relieved by medi- cation. Porco consistently reported that sitting and standing exacerbated the pain. Nothing in the physicians' re- ports suggest that any of them believed that Porco was manufacturing or exag- gerating his complaints of pain; rather, they appear to have viewed them as consistent with the diagnosed problems with his spine. 73. Multiple physicians concluded that Porco was either unable to work or sig- nificantly impaired in his ability to work due to his spinal condition and the re- sulting pain. Lawner determined that, as of June 21, 2002, Porco was unable to perform the duties of his position. On September 26, 2002, his primary care physician indicated that Porco should not lift over five pounds, and should avoid bending, climbing, pushing or pull- ing. On May 3, 2004, Blair concluded that Porco was "unable to work." 74. Prudential's reassessment of Porco's disability was triggered by the surveil- lance video recorded at the end of July 2005. Having reviewed the surveillance video, the court finds it of little assis- tance in assessing Porco's condition. The video depicts Porco carrying a flop- py length of pipe for less than a min- ute, and pulling a wheel barrow for thir- ty seconds. Although the weight of the pipe is unclear, it could easily be under five pounds; the contents of the wheel barrow appears somewhat more likely to exceed five pounds. The fact that Porco performed the tasks on the date the video was taken for the brief time de- picted does not indicate that he could necessarily perform them repeatedly as part of the duties of a daily occupation, however. See No. 06-11258, , *4 (E.D.Mich. Jan. 31, 2008) ("Hart- ford's reliance on the video surveillance of Plaintiff in deciding to terminate her LTD benefits was neither reasonable nor rational. Hartford makes much of the fact that it captured footage of Plain- tiff in the acts of, among other things, walking for about a mile on five occa- sions for about a half hour; operating a car on five occasions; going to church on two occasions; and scratching her back on two occasions. However, it was nev- er alleged that Plaintiff was unable to do any of these activities. . . . Dr. Slain in- dicated that Plaintiff was unable to do all of those activities on the same day for a continuous period of eight or four hours. . . . [T]he video surveillance fails to show Plaintiff either performing any single or combination of activities for an eight or four hour period, or strenuously exerting herself over the course of two consecutive days"). 75. Further, the surveillance of Porco ap- pears to have been fairly constant over three days. The fact that less than two minutes of footage shows Porco engaged in physical activity other than walking suggests that he was not particularly active during the surveillance period. 76. Finally, although Porco walks without difficulty in the footage, the neurologists who found that he suffered from severe pain noted that he walked with a normal gait. Details that might assist in de- termining whether Porco was experienc- ing pain at the time the video was re- corded — e.g., his facial expression — are not discernible from the footage. 77. On September 1, 2005, Day reviewed the medical evidence discussed above and the surveillance video. Given the substantial evidence provided by doctors who examined Porco regarding his pain and ability to work, the court finds Day's report unpersuasive, his conclusions are vaguely stated and only generally sup- ported. Day concluded that it was "ov- erly restrictive" to limit Porco to lifting more than five pounds "[b]ecause there are little neurological finding[s]." He concluded that Porco could lift 10-25 pounds "on occasion." It is not clear what Day's reference to a lack of "neu- rological findings" means. Multiple neu- rologists concluded that Porco suffered from a significant spinal problem that resulted in severe pain. It seems obvi- ous that such a condition would support restrictions on lifting, as lifting places stress on the spine. Day also concluded that "the surveillance evidence would . . . support . . . [a] functional capacity of sedentary to light work." Given the limited utility of the surveillance evi- dence, the court considers opinions re- garding Porco's ability to work rendered by physicians who examined him over time more credible than conclusions reached based on observing the video. 78. The propriety of Prudential's denial of benefits is also called into question by its reliance on Howard's report. How- ard's findings were purportedly intended to take into account the restrictions by Day; among these was the limitation that Porco could lift ten pounds "on occasion." Howard concluded that Por- co could perform the duties of several positions, including those of a Service Manager at an automobile dealership or repair facility. According to Howard's report, this position requires a "light" level of physical exertion, and encom- passes lifting ten pounds "frequent- ly." Even putting aside the court's concerns regarding the validity of Day's conclusions, Howard's report is inconsis- tent with the restrictions Dr. Day rec- ommended, despite the fact that it pur- portedly applied those restrictions. 79. Howard's addition of "instructing" and "supervising" to Porco's skill set based on an assumption that these abilities were "inherent pre-disability responsi- bilities and proclivities" further un- dercuts the reliability of his report, as there is no evidence in the record that Porco's experience included manage- ment or supervision or that he had "pro- clivities" in these areas. 80. Even more puzzling is the list of po- tentially available occupations cited in Prudential's December 23, 2005 denial letter. Most of these positions are dif- ferent than the positions discussed as possibilities in Howard's report. There is nothing in the record to indicate why Prudential concluded that Porco could perform the duties of the cited positions, and Prudential does not address the anomaly in its briefs on appeal. 81. After Porco filed his appeal, Pruden- tial received further information that his condition remained the same as his con- dition at the time of its initial finding of total disability. During a December 2005 office visit, Dr. Chiang noted that Porco was visibly uncomfortable sitting and experienced pain "on a regular daily basis." Chiang's records indicate that as of January 2006, Porco continued to suffer chronic "shooting electrical pain" in his legs and lower back that was exacerbated by extended sitting and standing. 82. In upholding the denial of benefits on March 1, 2006, Prudential relied on a review of Porco's file by Dr. Partnow. Partnow concluded that Porco "had no functional impairments from [January 1, 2006] forward." In so concluding, Partnow ignored extensive evidence re- garding Porco's history of severe pain, stating simply that "[h]is pain is treated with medicine." Partnow's report says nothing about the substantial evi- dence in the file that Porco's pain was not relieved by medication. It is clear that Partnow relied heavily on the sur- veillance video, as he repeatedly refer- ences it to support his conclusions. He cites nothing, for example, to sup- port his conclusion that Porco's chronic pain does not prevent him from working beyond his impressions of "the man on the video." Partnow's report reflects a refusal, presumably derived from im- pressions of the video footage, to believe any of Porco's consistent self-reports of pain. Indeed, Partnow expresses doubt, without citation to any portion of the record, as to whether Porco was self-catheterizing. The overall im- pression created by Partnow's report is that he viewed the surveillance video, unreasonably reached a conclusion based solely on that evidence, and did not con- duct a thorough and dispassionate exam- ination of the medical evidence. This impression is confirmed by the fact that on at least one occasion the report mis- states the facts in the record in a man- ner indicating a rushed and careless re- view. Partnow states that Porco is "no longer incontinent," apparently on the basis of a statement Porco made to Cook in November 2005; the record indicates, however, that Dr. Chiang noted in Janu- ary 2006 that Porco "will sometimes . . . suffer from urinary incontinence." After considering Partnow's report, the court concludes that Prudential's reli- ance on it was unreasonable. 83. In sum, the court finds it more likely than not that Porco met the Plan defini- tion of total disability at the time of the denial of benefits on March 1, 2006. All of the medical evidence in the record at that time indicated that following the operation on April 11, 2002, Porco's his- tory of chronic pain, related to a com- plex spinal problem, became worse; and that, thereafter, he consistently suffered severe pain in his lower body. In 2002, his doctor restricted him to lifting no more than five pounds based on these symptoms; the records supports a con- clusion that Porco's condition did not substantially improve since then. Dr. Day's and Dr. Portnow's reports are the only evidence that the restrictions im- posed in 2002 were inappropriate; the court does not find their reports to be credible. There is no evidence in the record that Porco is qualified for a posi- tion within the restrictions originally im- posed, as Howard utilized different re- strictions in conducting his vocational assessment. Moreover, Dr. Blair, a neu- rologist who treated Porco on numerous occasions, opined in 2004 that pain relat- ed to Porco's spinal problem rendered him unable to work. As Porco's condi- tion remained the same in 2006, the court finds it more likely than not that Porco met the definition of "total disabil- ity" in that he was "unable to perform the duties of any gainful occupation for which [he was] reasonably fitted by edu- cation, training or experience." Accord- ingly, Prudential's denial of benefits was wrong, and Porco is entitled to contin- ued receipt of disability benefits. 84. Because the court concludes that Pru- dential reached the wrong conclusion as to whether Porco remained totally dis- abled, Porco is entitled to retroactive reinstatement of benefits. See , (9th Cir. 2001) ("Paul Revere did not misconstrue the defini- tion of `disabled,' or apply the wrong standard to evaluate Grosz-Salomon's claim. It applied the right standard, but came to the wrong conclusion. Under these circumstances, remand is not justi- fied. Retroactive reinstatement of bene- fits was proper" (footnotes omitted)). 85. "The Ninth Circuit has held that a district court may award prejudgment interest in ERISA cases to compensate a plaintiff for the loss he incurred as a result of the defendant's nonpayment of benefits. See , (9th Cir. 2001). Whether to award pre- judgment interest `is a question of fair- ness, lying within the court's sound dis- cretion, to be answered by balancing the equities.' See 750 F.2d 1458 (9th Cir. 1985). Appropriate con- siderations include whether the `financial strain' of paying prejudgment interest would injure other plan beneficiaries, and whether the defendants acted in bad faith. See see also 269 F.3d at 988." , (N.D.Cal. 2005). 86. Defendants have not argued that an award of prejudgment interest is inap- propriate in this case, or presented evi- dence that such an award would result in financial hardship. As the court has concluded that Porco was entitled to benefits at the time they were terminat- ed, it finds that an award of prejudg- ment interest is appropriate to make him whole. See at 1013 ("There is no evidence that defendants would suf- fer any financial hardship by paying pre- judgment interest to Fleming, nor that any other beneficiary of the plans would suffer as a result. Had defendants properly reviewed Fleming's claim and focused on the effects of her pain and her pain medication on her ability to function in her position as a financial analyst, Fleming would have received long ago the benefits to which she is entitled. Fleming is entitled to an award of prejudgment interest to make her whole"). 87. Generally, "the interest rate pre- scribed for post-judgment interest under is appropriate for fix- ing the rate of pre-judgment interest unless the trial judge finds, on substan- tial evidence, that the equities of that particular case require a different rate." , (9th Cir. 2007) (quoting 237 F.3d 1154, 1163-64 (9th Cir. 2001)). "Substan- tial evidence" is defined as "such rele- vant evidence as a reasonable mind might accept as adequate to support a conclusion." (quoting , (9th Cir. 1987)). Post-judgment interest is "cal- culated . . . at a rate equal to the weekly average 1-year constant maturity Trea- sury yield, as published by the Board of Governors of the Federal Reserve Sys- tem, for the calendar week preceding. the date of the judgment." The Trea- sury bill rate has varied widely during the period from March 1, 2006 to the date of the entry of judgment. Conse- quently, the court concludes it would be equitable to award pre-judgment inter- est at a higher rate than the current rate for Treasury bills. 88. During the period from January 1, 2006 to January 19, 2010, the 1-year constant maturity Treasury yield has ranged from a low of 0.26%, on Novem- ber 25, 2009, to a high of 5.3%, on June 26, 2006. Averaging the daily yields over this period produces a rate of 2.91%. Because the current yield rate is near the lowest value for the period, and rates during portions of the period were significantly higher, the court finds it equitable to award pre-judgment inter- est at the average rate of 2.91%. 89. Any conclusions of law that are deemed to be findings of fact are incor- porated herein as such. III. CONCLUSION
Based on its findings of fact and conclusions of law, the court concludes that Porco is entitled to have judgment entered in his favor. Porco may file a motion for attorneys' fees in accordance with the Local Rules.