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Gorena v. Aetna Life Insurance Co.

United States District Court, W.D. Washington, Seattle

May 8, 2018

SARAH G. GORENA, Plaintiff,


          The Honorable Marsha J. Pechman United States Senior District Court Judge

         The above-entitled Court, having received and reviewed:

         1. Plaintiff's Motion for Summary Judgment (Dkt. No. 29), Aetna's Opposition to Plaintiff's Motion for Summary Judgment (Dkt. No. 34), and Plaintiff's Reply in Support of Plaintiff's Motion for Summary Judgment (Dkt. No. 36);

          2. Aetna's Cross-Motion for Judgment on the Administrative Record (Dkt. No. 31), Plaintiff's Response to Aetna's Cross-Motion for Judgment on the Administrative Record (Dkt. No. 33), and Aetna's Reply in Support of Aetna's Cross-Motion for Judgment on the Administrative Record (Dkt. No. 35); and the Administrative Record (Dkt. No. 32) filed in conjunction with this proceeding, rules as follows:

         IT IS ORDERED that Defendant's Cross-Motion for Judgment on the Administrative Record is DENIED.

         IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment is GRANTED. Defendant is ordered to approve and pay Plaintiff's long-term disability claim to the present.

         IT IS FURTHER ORDERED, pursuant to 29 U.S.C. § 1132(a)(1)(B), that Defendant continue to pay Plaintiff's long-term disability claim to the policy's maximum benefit absent a showing of improvement in her medical record such that a reasonable physician would conclude that she could work in any reasonable sedentary occupation in the competitive workforce (as defined by the Plan) for which she has the education, training and experience, and is capable of performing productively, full-time, without undue disruptions and absences due to her MS and its related symptoms.


         Plaintiff's Condition and Medical/Psychological History

         Plaintiff worked for Boeing as a Staff Analyst from February 2005 through July 20, 2015. (Stip. Admin. Record [“AR”] at 7916.) She was diagnosed with multiple sclerosis (“MS”) in 2007. (AR 8409.) Her disability request is based solely on her MS, but over the years she has had co-diagnoses of chronic lumbar back pain, joint pain, polycystic ovary syndrome accompanied by morbid obesity, gastrointestinal difficulties following bariatric (weight loss, migraine) surgery (AR 109-12, 3419, 8409-11, 8423-26), depression (AR 7904), and substance abuse (from which she has been in recovery since mid-2014; AR 8462, 8578, 6666).

         From 2013 to 2015, six short-term medical leaves (Short Term Disability or “STD”) for MS symptoms were approved. (AR 8524.) Additionally, Plaintiff has had two ER visits and received numerous steroid injections to treat her condition. (AR 8504, 6911, 3026, 4898, 8510, 6667, 6929, 399.)

         Plaintiff's treating physician is Dr. Reif, who has maintained a clinical practice since 1982, conducted MS research (including clinical drug trials), taught other medical professionals, and performed disability/employability determinations for years. (AR 8407.) Dr. Reif has been treating Plaintiff since October 2007; i.e., over 8 years by the time Plaintiff applied for long-term disability (“LTD”). (AR 1635, 8409.)

         Plaintiff's treating physician has chronicled a decline in Plaintiff's condition since 2015. A January 2015 MRI detailed a further progression of the disease from a 2012 baseline, including new lesions in the spinal cord. (AR 8423-24, 8462.) Another flare in February 2015 prompted Dr. Reif to note the “increasing frequency of relapses” and to speculate that Plaintiff might be a candidate for a stem cell transplant. (AR 8462-63.) Plaintiff had not worked since January 2015 (AR 8462) and Dr. Reif authorized medical leave through February 23, 2015. (AR 7430-32.)

         By mid-2015, Plaintiff was also experiencing increasing bowel problems: her GI specialist (Dr. Ramakrishnan) diagnosed the symptoms as “MS-related constipation” so severe that he authorized a medical leave for Plaintiff from April 8 through May 20, 2015. (AR 7390-95, 7406.) She was also diagnosed in May 2015 with ‘Major Depressive Disorder due to medical condition.” (AR 7904.)

         Plaintiff's medical records were reviewed by Aetna physicians in relation to an STD request in May-June of 2015. A neurologist (Dr. Cohan) analyzing Plaintiff's records adjudged that she was not functionally impaired neurologically from April 8 to July 14, 2015. (AR 7376.) Dr. Cohan conferred with Dr. Reif on July 27, 2015 and reported that Dr. Reif disclosed no functional impairments during the period in question. (Id.)[1] A gastroenterologist (Dr. Molina) noted that, while bowel accidents and incontinence were a “nuisance, ” they did not represent functional incapacity and that no examinations or clinical findings documented a loss of function during the April - July 2015 period. (AR 7370.) STD benefits were ultimately approved through June 1, 2015, on the basis of behavioral health issues and withdrawal from anti-depressant medication. (AR 7800.)

         Plaintiff made her claim for LTD benefits on July 20, 2015. Defendant requested additional records and a clinical consultation to evaluate her request. In October 2015, Dr. Reif chronicled her worsening condition (balance problems, bladder dyscontrol, trouble finding words, depression) and opined that “it is clear that she really is not able to work at competitive employment anymore for a combination reasons.” (AR 8440-41.) A new MRI revealed multiple new brain lesions, including one “consistent with a black hole” lesion. (AR 8418; this lesion either resolved or diminished later.)

         In December 2015, Dr. Reif found Plaintiff “still significantly disabled with her balance and fatigue in general and also particularly with her mood, ” and stated that she “support[ed] her permanent disability due to the multiple medical issues.” (AR 8568.) In that same month, Dr. Reif completed an Attending Physician Statement (“APS”) which included her October 2015 office note and an MRI report, noting symptoms of imbalance, falling, numbness, and depression, and the presence of “multiple enhancing lesions” in the MRIs. (AR 8574-83.) Her conclusion: “Severe limitation of functional capacity; incapable of minimal (sedentary) activity.” She rated Plaintiff's physical impairment as Class 5 and said that Plaintiff would never return to work. Furthermore, she predicted an increased decline in Plaintiff's condition. (AR 8576.)

         Additionally, there are reports from a psychologist and psychiatrist confirming her disabled condition. Psychologist Dr. Davis (who had treated Plaintiff for nine years) identified Plaintiff as “disabled” in August 2015 on the basis of a “mood disorder due to medical condition.” (AR 8604.) In January 2016, Dr. Davis again declined to authorize Plaintiff's return to work. (AR 8528.) After examining Plaintiff in October 2015, psychiatrist Dr. Proano noted that her “[e]nergy and ability to sustain executive functioning are greatly exacerbated by severe M/S” (AR 8611), which he identified in January 2016 as her “primary disabling condition.” (AR 8530; emphasis in original.)

         History of LTD Claim

         Upon receipt of Dr. Reif's December 23, 2015 APS form, an Aetna nurse (Mr. Thornton) logged a “Clinical Review” which attributed Plaintiff's limitations “solely to depression symptoms” and suggested a behavioral health evaluation (AR 7948-49), which resulted in the January 16, 2016 report by Dr. Davis diagnosing Plaintiff with “[d]epression due to medical condition.” (AR 8526.) Plaintiff was then interviewed by one of Aetna's “Behavioral Health Specialists” (AR 7958-60). Nurse Thornton added additional notes indicating that his prior determination was unchanged (AR 7971) and on January 24, 2016, Defendant denied Plaintiff's LTD claim, finding that Plaintiff's “intact strength, coordination, and no spasticity with only mild sensory issues to feet” left her able to perform sedentary work. (AR 8113-15.)

         Plaintiff appealed the denial, submitting Dr. Reif's resume, chart notes, two letters from Dr. Reif, a list of her MS-related medical leaves since 2013, and a Physical Residual Functional Capacity Assessment (“FCE”). (AR 8396-8537.) Dr. Reif's February 4, 2016 letter chronicled the “cumulative effect” of living with MS for 18 years and listed clinical findings (chronic imbalance, sensory loss, depression, diminished executive function, bowel/bladder accidents and accidental falls) in support of her conclusion that it was “impossible for her to maintain employment.” (AR 8409-10.) She pointed out that the October 2015 MRI showed “at least 50 old lesions, three new active enhancing lesions and new ‘black hole'… indicating that she has reached the point of complete cell death in that region.” (Id.) Dr. Reif pointed out that the lesions were located in the areas of the brain associated with personality, mood, and memory. (Id.)

         Aetna's response was to characterize Dr. Reif's letter as “advocating for EE(employee)'s disability” (AR 8002) and to conclude that “[t]here are no additional exam or diagnostic findings… to alter the prior determination.” (AR 8005.)

         Dr. Reif responded by authoring a second letter in March 2016, summarizing the symptoms and findings that pointed to the “increasing cumulative effect of this illness on her” and the “pattern of increasingly severe relapses.” (AR 8413-14.) She also described symptoms identified by a neuro-ophthalmologist which included bilateral optic nerve damage and loss of color vision. (AR 8415.) She indicated by means of an FCE all the physical limitations which would preclude Plaintiff from returning to even sedentary work, including an inability to sit for more than 6 hours, fatigue, cognitive dysfunction, limits on her ability to stand, walk, lift or carry, and limited left eye function. (AR 8416, 8418.)

         Aetna referred Plaintiff's appeal to a neurologist (Dr. Graham) whose review revealed “neurological examinations with no progressive decline in examination status, ” “intact vision, cognition, and speech, as well as intact motor strength” with only minor sensory loss, and normal walking ability (while observing that “morbid obesity… [is] noted to affect walking and balance difficulty.” (AR 8333.) The appeal was denied.

         A final July 12, 2016 letter from Dr. Reif summarized a June 2016 exam and new MRIs. She reported “more difficulties with balance and fatigue and “ongoing disease progression” revealed by the brain MRI. She recommended a 3-day IV steroid treatment, a second opinion consult on more aggressive MS drugs and that Plaintiff not return to work “on the basis of her disease both from the physical standpoint (weakness and fatigue), as well as her cognitive issues.” (AR 8347-51.)

         Aetna's response was to conclude that the new clinical records did not “provide clinical correlation for any specific restrictions” precluding sedentary work. After reiterating Dr. Graham's conclusions regarding Plaintiff's “intact vision, cognition and speech, as well as intact motor strength, ” the company again denied her appeal. (AR 8129, 8333.) This lawsuit followed.


          Stand ...

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