Opinion
No. C 02-00270 CRB
December 20, 2002
MEMORANDUM AND ORDER
This is an ERISA action for disability benefits. The Court held a bench trial on December 6, 2002. After carefully considering the briefs submitted by the parties, the administrative record, and oral argument at trial, the Court finds for the plaintiff. This Memorandum and Order constitutes the findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52.
FACTUAL BACKGROUND
The plaintiff, Lori Trolson, was an employee at Kaiser Permanente for over twenty years, most recently working as an administrative assistant. In May, 1998, she was involved in a car accident, requiring that she seek treatment for back and neck injuries. Ms. Trolson's medical records indicate that she had previous back and neck problems, requiring some time off from work. See Declaration of Evans, ALIC 00181. The problems, which had been intermittent, became constant and disabling after the May car accident.
The Kaiser long term disability ("LTD") policy, administered by Aetna, provides benefits for the first 24 months of disability if the employee is unable to perform with reasonable continuity the substantial and material acts necessary to pursue her usual occupation. Decl. of Carroll, ALIC 00066. Since she could not perform the functions of her administrative assistant job, Ms. Trolson received benefits for 24 months, starting the day after her car accident. After 24 months, the disability standard changed, requiring that she be "continuously unable to engage in any and every occupation for compensation or profit for which . . . [she is] reasonably qualified by education, training or experience" in order to qualify for LTD benefits. Id. Aetna determined that she was capable of working full-time as a receptionist or clerk, and subsequently discontinued her LTD benefits on September 22, 2000. Ms. Trolson appealed the decision, and the company denied her appeal in May, 2001.
THE ADMINISTRATIVE RECORD
A. Findings of the Treating Physicians
Since her 1998 car accident, Ms. Trolson has been seen by six treating physicians. Her internist, Dr. Jimenez, examined her a dozen times, recommended that she see an orthopedic specialist, and most recently concluded that her injuries are permanent, stationary and disabling. See ALIC 00673. As of February, 2001, Dr. Jimenez concluded that Ms. Trolson was "unimproved. She remains unable to work either part or full time in any type of administrative or clerical position." Id. A month after the accident, Ms. Trolson was treated by Dr. Lieberman, who gave her an MRI, finding small disk protrusions in her neck. ALIC 00155. He performed an MRI of her lumbar spine four months later, and found degenerative disk disease. ALIC 00175.
Ms. Trolson was referred to Dr. Massimino for a spinal evaluation in October, 1998. Dr. Massimino found chronic back and neck pain, relating to degenerative disk disease. He recommended that she try to return to work 4 hours a day with limited duty. ALIC 00182-00183. Ms. Trolson had attempted to return to work in August 1998, but was unable to continue due to increased pain in her neck and back. ALIC 00317.
Ms. Trolson was also seen by Dr. Gorek, an orthopedist, who examined her and recommended x-rays. ALIC 00215. These x-rays were obtained from Dr. Derby, who performed a cervical discography, which revealed the disk that is the primary pain generator. ALIC 00233. In February of 1999, Ms. Trolson was seen by Dr. Gamburd, who found that she had painful disk disruptions in the neck, and recommended that she receive epidural injections for the pain. ALIC 00299. She had these injections, and they decreased her pain. ALIC 00318.
B. Defendants' Independent Physicians
The plaintiff was the subject of two independent medical examinations (IME) by the defendants' doctors, and one IME by a physical therapist. ALIC 00337, 00425, 00451. The first IME took place in July, 1999 with Dr. Carr, a neurosurgeon, who found that Ms. Trolson had degenerative disk disease at the same disks diagnosed by her treating physicians. ALIC 00339. Dr. Carr found that the plaintiff was unable to return to her usual occupation, but stated that he found it unlikely that this would continue in the future. He concluded that at least as of the time of the examination, "for all practical purposes she is unemployable." ALIC 00340. This was his only examination of Ms. Trolson.
On June 12, 2000, Ms. Trolson was give a functional capacity evaluation (FCE), at defendants' request, by a physical therapist at Healthsound. The results of the FCE note that "[s]he had to lie down to relieve her back twice during the testing period. The latter time with an ice pack under her neck. Thus [sic] would indicate that she needs to be in a setting where she can do these things." ALIC 00425. The FCE also notes that she showed "consistency of effort on 12 out of 13 tests." Id. She also scored in the "max" range for magnified illness behavior (8 out of a possible 16). ALIC 00428. The FCE concluded that Ms. Trolson would be able "to do things for very short times, then take a break and do something else (in other words, a non structured setting)." ALIC 00425. She would be able "to sit and use a computer screen which is placed so that she neither has to flex or extend her cervical spine." Id. Telemarketing at home was listed as an example of the kind of work that Ms. Trolson could perform. See id.
Finally, on June 20, 2000 Ms. Trolson was examined by Dr. LaRochelle. He concluded that while she was permanently disabled from her administrative assistant occupation (ALIC 00455) she would be able to work part-time with the restrictions given in the Healthsound report, i.e., no prolonged sitting or standing; she could work for up to an hour at a time with frequent breaks. ALIC 00456.
Additionally, Ms. Trolson was seen by Dr. McIvor in February 2001, for an IME arranged by her attorney. Dr. McIvor found that his objective results matched the patients subjective complaints and that she was disabled.
The defendants also arranged for two doctors to review Ms. Trolson's records, although they did not exam her. Dr. Dickison reviewed her records on July 31, 2000 and concluded that she could work, with certain limitations. He also reviewed a surveillance video tape and concluded that she may be able to do more than her medical records indicated. ALIC 00490. In February of 2001, Dr. Taiwo also reviewed Ms. Trolson's records and concluded that "she is at least capable of sedentary work that would allow her to change her position frequently." ALIC 00707.
In addition to obtaining other medical opinions, the defendants hired an investigator to follow and videotape the plaintiff on June 19 and 20, 2000. ALIC 00481. The two-day surveillance resulted in a four minute video of Ms. Trolson leaving Dr. LaRochelle's office, driving to a restaurant, eating lunch with a friend and driving away from the restaurant. ALIC 01167.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Standard of Review
In the ERISA context, denial of long-term benefits "is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). In other words, "the default is that the administrator has no discretion, and the administrator has to show that the plan gives it discretionary authority in order to get any judicial deference to its decision." Kearney v. Standard Insurance Co., 175 F.3d 1084, 1089 (9th Cir. 1999). Where such discretionary authority is reserved, the denial is reviewed for abuse of discretion.
The plaintiff alleges, and the defendants do not disagree, that the Aetna disability policy does not contain any language indicating that the administrator is reserving discretion to make binding determinations. Accordingly, the Court will review the denial of benefits using the de novo standard.
B. The Treating Physician Rule
The plaintiffs urge the Court to use the "treating physician rule," recently adopted by the Ninth Circuit in Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130 (9th Cir. 2001). The defendants contend that this rule does not apply.
The treating physician rule has been borrowed from Social Security disability claims and applied to ERISA. See id. at 1144. Essentially, the rule prevents a provider of disability benefits from shopping for a doctor whose opinion favors the provider, and using that opinion instead of the less favorable one given by the claimant's treating physician. The rule requires the trier of fact to "give deference to the opinions of the claimant's treating physician, because `he is employed to cure and has a greater opportunity to know and observe the patient as an individual.'"Id. at 1139 (quoting Morgan v. Comm'r of Soc. Sec. Admin, 169 F.3d 595, 600 (9th Cir. 1999)).
Ms. Trolson's primary treating physician concluded that she was permanently disabled and unable to work full or part-time. ALIC 00673. The primary physician's conclusions are supported by the findings of the specialists who saw and treated Ms. Trolson. See e.g. ALIC 00233, 00299, 00231. Under the treating physician rule, the Court must, and does, give deference to this opinion.
Defendants respond that if the treating physician's opinion is directly contradicted by independent clinical findings, the opinion of the treating physician is not given deference. See Def. Motion for Summary Judgment at 11. They contend there are specific reasons for rejecting the opinion of Ms. Trolson's treating physician, Dr. Jimenez, in that the doctor produced only a brief, conclusory report based entirely on Ms. Trolson's subjective reports of pain, and that her complaints are, at best, exaggerated.
1. Dr. Jimenez' report should be considered
The defendants assert that the treating physician rule does not apply because Dr. Jimenez' report is conclusory and is not backed up by clinical findings. The Court finds otherwise. First, the administrative record reveals that Dr. Jimenez saw the plaintiff a dozen times, and includes not only the conclusory report, but the medical records on which the report is based, including objective findings. See ALIC 00205.
Second, and more significant, the defendants improperly treat Dr. Jimenez as Ms. Trolson's sole treating physician. Dr. Jimenez, an internist, was the primary physician, but by no means the only one. As the primary physician, she referred Ms. Trolson to Dr. Massimino, Director of the DSA Spine Clinic (ALIC 00181) and Dr. Gorek, an orthopedist (ALIC 00220), who referred her to Dr. Derby for a cervical discography (ALIC 00231). These doctors treated Ms. Trolson, and found that she has degenerative disks in her lower back and in her neck. See ALIC 00185, ALIC 00233. Significantly, when dye was injected into Ms. Trolson's neck, the pain she reported produced "a reproduction of her familiar pain." ALIC 00232. Thus, the objective tests mirrored Ms. Trolson's subjective reports of pain. Dr. Derby, using the objective discography, located three disks in the plaintiff's neck that generated pain. See ALIC 00233. Moreover, when the patient was treated with epidural injections to the neck, the pain was reduced. See ALIC 00299, 00318. Accordingly, the Court finds that Dr. Jimenez' findings as to Ms. Trolson's pain are not conclusory and based solely on the patient's subjective complaints, but rather, are fully supported by the objective medical evidence.
2. Defendants' Independent Medical Examiners do not contradict the treating physicians
Defendants also contend that the treating physician rule does not apply when the non-treating physicians base their conclusions on independent clinical results. In this case, however, the only independent results obtained by the defendants' doctors who actually examined the plaintiff do not contradict the findings of the plaintiff's treating physicians.
The plaintiff was examined at the defendants' request by two doctors and a physical therapist. Dr. Carr, a neurosurgeon, found that Ms. Trolson suffered from degenerative disk disease and was currently unemployable. See ALIC 00339, 00340. The physical therapist noted that Ms. Trolson was only able to do things for short periods of time before having to lie down to take care of the pain in her neck, and thus would have to work in a non-structured, possibly home, environment. See ALIC 00425. Finally, Dr. LaRochelle examined her, and agreed with the assessment of the physical therapist, concluding that she might be able to work part-time at a job that would allow frequent breaks. See ALIC 00456. The findings of these independent medical examiners do not contradict those of the treating physicians; indeed, they verify the diagnoses of Ms. Trolson's doctors. Specifically, Dr. LaRochelle stated that she "could work part time by the functional capacity testing identified by HealthSound . . . with limited capacity; i.e., no prolonged sitting no prolonged standing." ALIC 00456.
Aetna insists that Dr. LaRochelle was mistaken because he believed the FCE concluded that Ms. Trolson could work only part-time, and it did not. Dr. LaRochelle's report is ambiguous on this point, since he could well have meant that it was his belief that she could work only part-time, given the limitations identified by HealthSound.
The conclusions of Dr. Dickison and Dr. Taiwo are not persuasive. As these two doctors did not examine Ms. Trolson, their conclusions are not based on independent clinical findings. Dr. Taiwo's report states "I believe that she is at least capable of sedentary work that would allow her to change her position frequently" but gives no reason for his belief. ALIC 00707. Dr. Dickinson viewed the surveillance videotape and concluded that it would "question the validity of some of the IME and FCE findings," but fails to elaborate on how the video casts doubt on the conclusions of either the treating or the examining doctors. ALIC 00490. These medical reviews with outcomes favorable to the benefit provider are exactly the type of doctor shopping that the treating physician rule is intended to prevent. In Nord v. The Black Decker Disability Plan, 296 F.3d 823 (9th Cir. 2002), the court held that when long-term treating physicians and independent, one-time clinical examiners disagree, the conclusions of the treating physicians can be rejected "only if the administrator gives specific, legitimate reasons for doing so that are based on substantial evidence in the record." Id. at 831 (internal cites omitted). The doctors' reports are not based on their examinations of the plaintiff, and give no reason for rejecting the conclusions of the treating physicians, which are to a large extent supported by those independent physicians who did examine her.
In any event, even if the treating physician rule did not apply, the Court would still find that Ms. Trolson is disabled within the meaning of the plan because the findings of the treating physicians are not contradicted by the findings of the independent physicians who examined Ms. Trolson.
C. The surveillance videotape does not contradict the medical findings.
The defendants claim that the independent observations of a private investigator demonstrate that the plaintiff is not as disabled as the doctors' records appear to demonstrate. Again, the four minute video shows Ms. Trolson walking from the doctor's office, eating at a restaurant and driving away from the restaurant. The defendants contend "this evidence is key" and "calls into question the validity of any assessment . . . that she is totally disabled when that assessment is in large part based on the plaintiff's subject [sic] complaints of pain and incapacity." Def. Opp., 8.
The Court has reviewed the videotape and finds that it does not contradict the findings of the physicians and does not support the defendants' theory that Ms. Trolson is malingering. The video merely shows a woman who is capable of driving a car and sitting in a restaurant. While the video demonstrates that Ms. Trolson is capable of turning to place an item in the back seat, and looking over her shoulder to check for traffic, it does not indicate whether these movements cause pain, as she reported to her doctors. Since the plaintiff does not claim to be bed ridden or incapable of leaving her home, the video does not contradict the doctors' diagnoses.
CONCLUSION
Based on the administrative record, the Court finds that the plaintiff is disabled within the meaning of the insurance plan, because she is "continuously unable to engage in any and every occupation for compensation or profit for which . . . [she is] reasonably qualified by education, training or experience." ALIC 00066. Defendants have not identified any occupations which plaintiff could reasonably perform given her virtually undisputed physical limitations. The parties are instructed to file a joint proposed form of judgment by January 10, 2003. The judgment issued by the Court today will then be amended accordingly.