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Bradford v. Life Insurance Co. of North America

United States District Court, E.D. Washington

September 8, 2014


For Mark Bradford, Plaintiff: Lawrence Jay Kuznetz, LEAD ATTORNEY, Powell Kuznetz & Parker PS, Spokane, WA.

For Life Insurance Company of North America, a foreign insurance company, Defendant: D Michael Reilly, Lane Powell PC - SEA, Seattle, WA; Gabriel T Baker, Lane Powell PC, Seattle, WA.

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THOMAS O. RICE, United States District Judge.

BEFORE THE COURT are the parties' cross-motions for summary judgment (ECF Nos. 20 & 23). These matters were heard with oral argument on September 4, 2014. Lawrence J. Kuznetz appeared on behalf of the Plaintiff. Michael Reilly appeared telephonically on behalf of Defendant. The Court has reviewed the briefing and the record and files herein, and is fully informed.


This is an action to recover long-term disability benefits allegedly owing to Plaintiff under Section 502(a) of the Employee Retirement Income Security Act (" ERISA" ), 29 U.S.C. § 1132(a). In the instant cross-motions, the parties ask the Court to review the administrative record de novo and resolve any factual disputes concerning Plaintiff's entitlement to benefits pursuant to Federal Rule of Civil Procedure 52(a). For the reasons discussed below, the Court finds that Plaintiff is " disabled" within the meaning of Defendant's policy and is therefore entitled to payment of benefits.


The parties agree that the challenged benefits decision should be reviewed de novo. ECF No. 20 at 3; ECF No. 23 at 8. De novo review affords no deference to the plan administrator's determination. McDaniel v. Chevron Corp., 203 F.3d 1099, 1108 (9th Cir. 2000). The plaintiff has the burden of proof. Muniz v. Amec Constr. Mgmt., 623 F.3d 1290, 1294 (9th Cir. 2010).

The parties further agree that the Court should make findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a) and enter judgment. ECF No. 23 at 9; ECF No. 24 at 10. In an ERISA action, review under Rule 52(a) entails a " bench trial on the record" using the materials considered by the plan administrator. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1094-95 (9th Cir. 1999) (en banc). Evidence outside the administrative record may only be considered when " circumstances clearly establish that it is necessary to conduct an adequate de novo review of the benefit decision."

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Ingram v. Martin Marietta Long Term Disability Income Plan for Salaried Emp. of Transferred GE Operations, 244 F.3d 1109, 1115 (9th Cir. 2001) (quotation and citation omitted). The relevant inquiry under Rule 52(a) is not whether there are genuine issues of material fact, but whether the plaintiff " is disabled within the terms of the policy." Kearney, 175 F.3d at 1095. The court must necessarily weigh conflicting evidence and resolve disputed factual issues. Id. Rule 52(a) further requires the court to " find the facts specially and state its conclusions of law separately." Fed.R.Civ.P. 52(a)(1).


At all times relevant to these proceedings, Plaintiff Mark Bradford (" Plaintiff" ) was insured under a disability insurance policy issued by Defendant Life Insurance Company of North America (" Defendant" ). This policy provides for long-term disability (" LTD" ) benefits to an insured who becomes " disabled." The policy defines the term " disability" as follows:

An Employee is Disabled if, because of Injury or Sickness,

1. he/she is unable to perform all the material duties of his/her regular occupation, or solely due to Injury or Sickness, he/she is unable to earn more than 80% of his/her Index Covered Earnings; and
2. after Disability Benefits have been payable for 24 months, he/she is unable to perform all the material duties of any occupation for which he/she may reasonably become qualified based on education, training or experience, or solely due to Injury or Sickness, he/she is unable to earn more than 80% of his/her Indexed Covered Earnings.

ECF No. 17-7, Tr. 1192 (emphasis added).

Plaintiff began experiencing lower back pain in 1998. He subsequently underwent an L4-5 laminectomy in 1998, followed by an L4-5 fusion in 2000. These surgeries were not successful, and Plaintiff's pain became progressively worse over the next several years. Plaintiff took pain killers on a daily basis to manage his pain while he was at work. In September 2009, Plaintiff's back pain became so severe that he was unable to continue working. Plaintiff began taking sick leave and attempted to recuperate to the point that he could resume his normal work duties.

Plaintiff's efforts to recuperate were unsuccessful. On February 23, 2010, Plaintiff filed an application for LTD benefits. The application states:

I began having low back pain and sciatica in 1998. I had two surgeries, in 1998 and 2000. I have had to take daily doses of painkillers in increasing amounts, as the years went on, simply to go to work. The rigors of my position at State Farm demanded many hours of driving, frequent travel [and] additional work in my office and home. Performing these duties caused severely increasing back and leg pain, which affected my work performance and personal life. In September of last year, I reached a point where I simply could no longer stand the pain, and was forced to take sick leave. Currently, I am incapable of sitting or lying on my back without the aid of a cushion. I can tolerate periods of standing, walking, or physical therapy up to a total of perhaps 2 hours per day without lying down, or taking prescription painkillers at a high level, which I do not wish to do.
Over the last 2 years, I have had MRI's and bone scans, been referred to back specialists, and tried injections for potential nerve ablation, all to no avail. . . . I have been participating in physical

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therapy for 5 months religiously, currently using water therapy. I do not know if I have scar tissue from prior surgeries, if there is a problem with the metal hardware in my spine, or suffer from spinal spondylosis. I only know that supporting my low back can only be done when I am lying down. All other activity eventually leads to intolerable pain and muscle spasms that can lead to days needed to recover.

ECF No. 17-5, Tr. 741.

On March 29, 2010, Plaintiff's treating physician, Dr. Allen Skidmore, completed a physical ability assessment form at Defendant's request. Dr. Skidmore indicated that Plaintiff could sit, stand and walk " occasionally," i.e., for less than 2.5 hours and/or no more than one-third of an eight hour workday. ECF No. 17-4, Tr. 670. Attached to this form were treatment notes dating back to August 2009.

On July 1, 2010, Plaintiff underwent a functional capacities evaluation (" FCE" ) at Defendant's request at Summit Rehabilitation Associates. The evaluator, Michael Kim, concluded that Plaintiff was capable of performing light work " with limited sitting for an 8 hour day." ECF No. 17-4, Tr. 516. Mr. Kim further determined that Plaintiff " was limited in postural tolerances and . . . qualified to sit, stand, and walk on [an] occasional basis." ECF No. 17-4, Tr. 517. According to Mr. Kim, an " occasional" postural limitation translated to " less than 30 minutes at one time and less than one third of the work day." ECF No. 17-4, Tr. 517. Mr. Kim also noted that Plaintiff was " very pleasant and cooperative," that he " did not demonstrate any symptom/disability exaggeration behavior," that he exhibited " good and consistent effort throughout the evaluation," and that the evaluation yielded " valid results which can be used for medical and vocational planning." ECF No. 17-4, Tr. 516. Finally, Mr. Kim made the following comment with regard to Plaintiff's ability to perform light or sedentary work:

There needs to be a clarification regarding the previous statement regarding working at a light physical demand level. The light levels are selected from the material handling tests and based on what he is able to lift and not based on positional limitations. He would be moderately restricted in most sedentary or light levels based on poor positional tolerances. Most sedentary or light positions require frequent to constant sitting which he could not perform. Any transferrable positions would be challenging to accommodate due to the positional tolerances. The bottom line for this evaluation is that he could not perform his previous position as Insurance Agency Field Consultant due to the limited sitting ...

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