United States District Court, W.D. Washington, Seattle
PATRICK J. MULLANEY, Plaintiff,
THE PAUL REVERE LIFE INSURANCE COMPANY and; UNUM LIFE INSRUANCE COMPANY OF AMERICA, Defendants.
Honorable Richard A. Jones United States District Judge.
matter comes before the Court on the parties' Motions for
Judgment on the Administrative Record. Dkt. ## 21, 22, 30,
31. The Motions are opposed. Dkt. ## 39, 42.
seeks review of Defendants' denial of disability benefits
under a group insurance policy and an individual insurance
policy, both governed by the Employment Retirement Security
Act of 1974 (ERISA) and administered by Defendants. Dkt. # 1
(Complaint). Plaintiff also seeks declaratory judgment to
enforce Defendants' continuing obligation to him under
his policies as well as attorney's fees and costs.
turning to the merits of the parties' arguments, the
Court must determine whether it is appropriate to resolve
this case on the parties' motions for judgment under Rule
52 as opposed to summary judgment under Rule 56. The answer
depends on what standard of review the Court applies. See
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
109 (1989) (“ERISA does not set out the appropriate
standard of review for actions under § 1132(a)(1)(B)
challenging benefit eligibility determinations.”). The
parties here have simplified the matter by agreeing that the
Court should review Defendants' denial of coverage de
novo. Dkt. ## 25 at pp. 18-19; 37 at p. 27. The Court
accepts the parties' agreement and reviews the record
de novo. See Rorabaugh v. Cont'l Cas.
Co., 321 Fed.Appx. 708, 709 (9th Cir. 2009)
(unpublished) (court may accept parties' stipulation to
de novo review).
review is under the de novo standard, the Ninth
Circuit has not definitively stated the appropriate vehicle
for resolution of an ERISA benefits claim. The de
novo standard requires the Court to make findings of
fact and weigh the evidence. See Walker v. Am. Home
Shield Long Term Disability Plan, 180 F.3d 1065, 1069
(9th Cir. 1999) (de novo review applies to plan
administrator's factual findings as well as plan
interpretation). Typically, a request to reach judgment prior
to trial would be made under a Rule 56 motion for summary
judgment, however under such a motion the Court is forbidden
to make factual findings or weigh evidence. T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809
F.2d 626, 630 (9th Cir. 1987). Instead, the parties here
propose that the Court essentially conduct a bench trial on
the administrative record under Rule 52.
procedure is outlined in Kearney v. Standard Ins.
Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (noting that
“the district court may try the case on the record that
the administrator had before it”). In a trial on the
The district judge will be asking a different question as he
reads the evidence, not whether there is a genuine issue of
material fact, but instead whether [the plaintiff] is
disabled within the terms of the policy. In a trial on the
record, but not on summary judgment, the judge can evaluate
the persuasiveness of conflicting testimony and decide which
is more likely true.
Id. Thus, when applying the de novo
standard in an ERISA benefits case, a trial on the
administrative record, which permits the Court to make
factual findings, evaluate credibility, and weigh evidence,
appears to be the appropriate proceeding to resolve the
dispute. See Casey v. Uddeholm Corp., 32 F.3d 1094,
1099 (7th Cir. 1994) (on de novo review of an ERISA
benefits claim, the “appropriate proceeding . . . is
a bench trial and not the disposition of a summary judgment
motion”); Lee v. Kaiser Found. Health Plan Long
Term Disability Plan, 812 F.Supp.2d 1027, 1032 n.2 (N.D.
Cal. 2011) (“De novo review on ERISA benefits
claims is typically conducted as a bench trial under Rule
52”); but see Orndorf v. Paul Revere Life Ins.
Co., 404 F.3d 510, 517 (1st Cir. 2005) (“When
there is no dispute over plan interpretation, the use of
summary judgment . . . is proper regardless of whether our
review of the ERISA decision maker's decision is de
novo or deferential.”).
the above law and the consensus among the parties, the Court
elects to resolve the parties' dispute on the
administrative record rather than on summary judgment.
Therefore, the Court issues the following findings and
conclusions, pursuant to Rule 52.
Motion to Strike
preliminary matter, Defendants move to strike Exhibits 1 and
2 to Mr. Langer's Declaration (Dkt. ## 49, 50),
Plaintiff's Declaration (Dkt. # 44), Mr. Osborn's
Declaration (Dkt. # 45), and a physical capacity report
issued by Theodore J. Becker, Ph.D (Dkt. # 23). These
materials were not part of the administrative record. When
reviewing a plan administrator's decision de
novo, “new evidence may be considered under
certain circumstances to enable the full exercise of informed
and independent judgment.” Mongeluzo v. Baxter
Travenol Long Term Disability Ben. Plan, 46 F.3d 938,
943 (9th Cir. 1995). It is within the district court's
discretion to allow evidence that was not before the plan
administrator. However, such discretion should only be
exercised when circumstances clearly establish that
additional evidence is necessary to conduct an adequate
de novo review of the benefit decision. Id.
“[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.” Id. at 944.
1 and 2 to Mr. Langer's Declaration are Plaintiff's
medical records from the University of Washington's
Chronic Fatigue Clinic at Harborview Medical Center.
Plaintiff argues that these exhibits should be admitted
because Defendants argue that Plaintiff was not diagnosed
with fibromyalgia until 2014 and these documents are relevant
to refute this argument. Defendants contend that such
evidence is unnecessary because they acknowledge that
Plaintiff was “tentatively diagnosed” with
fibromyalgia in 2011. However, Defendants make the argument
in both their Motion and Response that Plaintiff cannot
support his contention that he was “residually
disabled” because he “has not always met the
diagnostic criteria” for fibromyalgia. Dkt. # 30 at 18;
Dkt. # 39 at 5. First noting that “FMS was initially
raised as a possible diagnosis” in September 2011,
Defendants argue that “the evidence does not support
the conclusion that [Plaintiff] had FMS throughout 2011 based
on the absence of ‘trigger points' - whose presence
are required to establish the FMS diagnosis.” The Court
disagrees that additional evidence on this issue would be
cumulative or unnecessary as Defendants clearly question
whether Plaintiff suffered from fibromyalgia in 2011. Where
additional evidence is necessary to assist in the
understanding of a “complex medical issue, ” such
as the diagnosis of a condition has largely subjective
symptoms, the circumstances warrant admission of such
evidence. See Opeta v. Nw. Airlines Pension Plan for
Contract Employees, 484 F.3d 1211, 1217 (9th Cir. 2007).
Therefore, Exhibits 1 and 2 will be considered for the
purposes of these Motions.
argues that his Declaration should be admitted because
“it corrects the record” with regards to the
“nature and character of Plaintiff's physical
activities.” Plaintiff's contention is that the
record contains errors regarding these activities. However,
his Declaration appears to be responsive to Defendants'
characterization of those physical activities and not a
correction of the record itself. Plaintiff makes no
persuasive argument that the descriptions of his physical
activities during the time period in question in the record
are inaccurate, or that these circumstances qualify as
“exceptional” such that introduction of
Plaintiff's Declaration would be necessary.
Defendants' Motion to Strike Plaintiff's Declaration
is GRANTED. Dkt. # 44.
submits Mr. Osborn's Declaration to clarify the
compensation system at Foster Pepper PLLC (“Foster
Pepper”), the law firm where Plaintiff works. Plaintiff
states that the data in the Declaration is included in the
claim file and that the Declaration is “merely added to
the record to ease understanding” of Foster
Pepper's payment scheme. Clarification of data that is
already in the record is not evidence necessary to conduct an
adequate de novo review of the benefit decision.
Further, Plaintiff's assertion mischaracterizes Mr.
Osborn's Declaration. The administrative record in this
case only includes data from 2011-2013. LTD-310. Therefore,
Mr. Osborn's Declaration cannot be a clarification of
data that is already contained within Plaintiff's claim
file. Mr. Osborn's Declaration contains additional data
regarding Plaintiff's billable hours from 2014-2016,
among other things. Despite this mischaracterization, the
Court finds that this evidence is necessary to conduct an
adequate de novo review of the benefit decision.
Plaintiff's long term disability policy, the definition
of “disability” includes consideration of
Plaintiff's loss in monthly earnings due to the alleged
sickness or injury. As knowledge of Plaintiff's income is
necessary to determine whether he meets the definition of
“disabled” pursuant to his long term disability
policy, Defendants' Motion to Strike Mr. Osborn's
Declaration is DENIED. Dkt. # 45. The Court
notes that Mr. Osborn's Declaration contains several
statements that are not relevant to this consideration or are
otherwise cumulative. Therefore, only statements and other
information relevant to Plaintiff's alleged loss in
income will be considered for the purposes of determining
whether Plaintiff meets the requirements of his insurance
also submitted a physical capacity evaluation report from
Becker. In the accompanying declaration, Plaintiff's
counsel represents that this report is dated March 12, 2015.
Dkt. # 46 at 3. The submitted report is dated June 6, 2017.
Dkt. # 46 Ex. 1. This date is over one year after this
lawsuit was filed and almost two years after Defendants'
denied Plaintiff's appeal of his claims. This report was
not part of the administrative record and will not be
considered by the Court for the purpose of these Motions.
Defendants' Motion is GRANTED as to this
report. Dkt. # 46 Ex. 1.
FINDINGS OF FACT
Plaintiff Patrick J. Mullaney asserted claims for disability
benefits under two policies: an individual policy
underwritten by Defendant Paul Revere Life Insurance Company
of America (“Paul Revere”), and a group policy
underwritten by Defendant UNUM Life Insurance Company of
America (“UNUM”). LTD-000003. Paul Revere was
acquired by UNUM. Both plans and Plaintiffs' claims
herein are governed by the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. §1001 et seq.
Dkt. # 1 (Complaint).
claim period at issue in this case is January 1, 2011, when
Plaintiff alleges his symptoms began, through February 22,
2016, the date he filed this case.
Plaintiff was born in 1961. He has worked as an attorney at
Foster Pepper PLLC, a law firm, since 1997. He became a
partner of the law firm in 2002. At some point he became an
equity partner. On January 1, 2014, Plaintiff became an
“income member” and was no longer an equity
partner. LTD-000068-69. One year after becoming an
“income member, ” Foster Pepper began
compensating Plaintiff at an hourly rate. Dkt. # 45.
4. As a
land use litigation attorney, Plaintiff is frequently
required to attend court hearings or participate in other
litigation-related activities. His practice includes managing
the structuring of real estate deals, utilizing scientific
experts, and dealing with technical information in order to
ensure the feasibility of property or land development under
existing law. Plaintiff is also required to negotiate with
various governmental agencies and resolve land rights
disputes. LTD-296-230; LTD-1660.
Foster Pepper's compensation system is based on a
three-year average of performance. An attorney's
compensation for a calendar year is based on his or her
performance in the three previous years. An attorney may also
receive a bonus based on his performance the previous year.
Dkt. # 45. Plaintiff's budgeted compensation for 2011 was
$220, 000. He received $284, 812 in compensation that year.
Plaintiff's budgeted compensation for 2012 was $225, 000.
Plaintiff received $236, 449 in compensation in 2012. In
2013, Plaintiff's budgeted compensation was $225, 000. He
received $210, 000 in compensation for that year.
Plaintiff's budgeted compensation for 2014 was $140, 000.
He received $134, 000 in compensation in 2014. LTD-310; Dkt.
# 21 at 2. Plaintiff provides no information regarding his
budgeted compensation for 2015 and 2016. Plaintiff's
compensation for 2015 and 2016 was $146, 000 and $104,
642.33, respectively. Dkt. # 45 Ex. A.
Plaintiff first began experiencing muscle pain in January of
2011. LTD-000151. On February 10, 2011, Plaintiff saw Dr.
Smith, complaining of sinus symptoms and swollen glands.
IDI-431. Dr. Smith diagnosed Plaintiff with sinusitis and
insomnia and suggested he consult a sleep specialist. After
this visit, Plaintiff went backcountry skiing and experienced
pain in his left posterior shoulder and armpit. He was
concerned he was having a heart attack but a cardiology visit
ruled this out. IDI-484.
Plaintiff saw Dr. Smith two more times in February of 2011.
Once on February 17, 2011, complaining of left axillary pain
down the side of his chest wall with minimal right bicep
pain. Dr. Smith noted in his report that the pain was
“[p]robably not cardiac pain” but due to a
previous indication of some areas of disease on
Plaintiff's CT angiogram, he felt that a “stress
echo test would be prudent.” IDI-430. Plaintiff saw Dr.
Smith again on February 25, 2011 due to continued pain in his
left axilla which he described as a burning-type of skin
sensation along the lateral chest wall and sometimes on his
right chest. Plaintiff also complained of occasional achiness
in his neck. He noted that the symptoms tended to wax and
wane and had been going on since February 10, 2011. Dr. Smith
decided to expand Plaintiff's metabolic workup to look
for any cause of paresthesias, dysesthesias, or muscle
March 10, 2011, Plaintiff went to see Dr. Smith again. He
reported having numbness down his middle two fingers in his
right hand, and continued chest wall pain. Dr. Smith's
assessment was that it was cervical radiculopathy and
referred Plaintiff to University of Washington for further
Plaintiff saw Dr. Shu-Ching Ho at the University of
Washington in March of 2011. He described a “deep
aching pain, like ‘lactic acid building up' in his
muscles, ” mostly in his arms under his armpits and in
his calves. He also reported feeling numbness and tingling
mostly in his fingers but that these symptoms had disappeared
after several weeks. His diagnostic workup at that time was
“unremarkable” and his neurological examination
was normal. IDI-489.
April 7, 2011, Plaintiff saw Dr. Smith for a sore throat but
mentioned that his muscle pain had worsened after early March
and that he had seen a neurologist who told him that it might
be a viral muscular response to some viral syndrome that
would slowly go away. At the time, Plaintiff reported that he
had gradually started improving the week before. IDI-426.
Plaintiff next saw Dr. Smith on May 25, 2011 due to continued
muscle pain. He requested that that his bloodwork be redone
and a Lyme's titer because he felt the symptoms had begun
after his travel in Arizona. IDI-423. Dr. Smith assessed
muscle pain, prediabetes, and recommended a colon cancer
June 8, 2011, Plaintiff saw Dr. Smith to have a tick on his
back removed. The medical report does not mention any muscle
pain and indicated that his Lyme's titer was still
Plaintiff saw Dr. Hu again on June 24, 2011. Plaintiff noted
that his pain had slightly improved with medication and that
his finger numbness had disappeared. At that time
Plaintiff's pain was mostly in his legs, “in the
attachment of the muscles to the bones.” Plaintiff had
no muscle weakness and his neurological examination was
normal. Dr. Hu referred Plaintiff to a neuromuscular
specialist for a second opinion. IDI-489.
July 11, 2011, Plaintiff was seen by Dr. Dina Thyerlei at the
University of Washington pain clinic for a neuromuscular
evaluation. Plaintiff described his paid as “diffuse
bee stings in his triceps.” Dr. Thyerlei's report
also notes that “[s]ome of his providers are wondering,
if he could have fibromyalgia.” Plaintiff's
neurological exam showed that he had “no focal weakness
or fatiguable weakness, numbness or positive fibromyalgia
trigger points.” Plaintiff showed no worsening of
symptoms with exertion. Dr. Thyerlei concluded that
“[f]ibromyalgia seems less likely without positive
trigger points.” IDI-1641-43.
July 25, 2011, Plaintiff was examined by Lynn
Schaefer-Alfonse, ARNP and Dr. Philip Mease of Seattle
Rheumatology Associates, PLLC. Plaintiff's neurovascular
exam showed intact cranial nerves. Plaintiff's sensation
and reflexes were normal and showed extremity strength of 5/5
in all extremities. Plaintiff's fibromyalgia tender
points were not tender, however Plaintiff exhibited
tenderness over the lateral epicondyles bilaterally, triceps
bilaterally, as well as his in his calves and in the arches
of his feet. The report indicates that “[w]e are
doubtful that this is fibromyalgia as he has no major tender
Plaintiff returned to see Dr. Thyerlei on August 9, 2011 in
order to rule out myopathy. Plaintiff reported pain in his
calves and thighs that improved with exercise and occasional
calf cramping. The results of the nerve conduction studies
and EMG studies showed possible mild chronic right S1 or S2