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Henarie v. The Prudential Insurance Co.

United States District Court, Ninth Circuit

May 29, 2013


Megan E. Glor, John C. Shaw, Portland, OR, Attorneys for Plaintiff.

John MacMillan, MacMillan, Scholz & Marks, P.C., Portland, OR, Attorney for Defendant.


GARR M. KING, District Judge.

Pursuant to the Employee Retirement Security Act of 1974 ("ERISA"), 29 U.S.C. ยง 1132(a)(1)(B), plaintiff Robert Henarie challenges defendant Prudential Insurance Company of America's decision to terminate his long-term disability benefits. Pending before me are the parties' cross-motions for summary judgment [28, 31]. For the following reasons, I grant Henarie's motion for summary judgment and deny Prudential's motion.


Henarie was working as a partner with the accounting firm KPMG until mid-September 2005-he had been there for almost 30 years. Five months later, on February 28, 2006, Henarie submitted a claim for disability benefits to Prudential supported by a statement from his primary care physician, Dr. Eugene Uphoff, diagnosing Henarie with sick sinus syndrome, syncope, migraine headaches, and an inability "to reliably perform calculations and cognitively process complex information." AR 339. Prudential approved Henarie's long-term disability claim under a provision of the Plan allowing for 24 months of payments for a mental illness (depression, in this case). Henarie disputes that his disability is solely due to depression and asserts entitlement to an additional $410, 000, plus pre-judgment interest, which represents slightly fewer than 14 months of additional monthly payments of $30, 000 each until his 60th birthday.


In this ERISA case, given the stipulation of the parties, the court is tasked with assessing the validity of Henarie's claim under a de novo standard of review. Firestone Tire & Rubber v. Bruch , 489 U.S. 101, 115 (1989); Def.'s Mem. in Supp. of Mot. for Summ. J. 15 (reflecting stipulation of the parties). Under this standard, the plan administrator is not entitled to deference; the court "simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits[.]" Abatie v. Alta Health & Life Ins. , 458 F.3d 955, 963 (9th Cir. 2006) (en banc). It is the claimant's burden of proof to establish that he was disabled under the terms of the plan. Muniz v. Amec Constr. Mgmt., Inc. , 623 F.3d 1290, 1295-96 (9th Cir. 2010). The court's review is generally limited to the administrative record and only in very limited circumstances may the court consider extrinsic evidence. Opeta v. Nw. Airlines Pension Plan for Contract Emps. , 484 F.3d 1211, 1217 (9th Cir. 2007).


I. Policy Language

The main issue in this case is whether Henarie's disability is now excluded from Prudential's Plan. Prudential does not dispute Henarie suffers from physical impairments and from depression and anxiety. Rather, the insurance company argues Henarie is limited to only 24 months of payments because his disability is "due in whole or in part" to a mental illness.

The language at issue is as follows:

What Disabilities Have a Limited Pay Period Under Your Plan?
Disabilities due to a sickness or injury which, as determined by Prudential, are primarily based on self-reported symptoms have a limited pay period during your lifetime.
Disabilities which, as determined by Prudential, are due in whole or in part to mental illness also have a limited pay period during your lifetime.
The limited pay period for self-reported symptoms and mental illness combined is 24 months during your lifetime.

KPMG Group Contract at 00028 (emphasis in original) [ECF No. 27-1].

However, "Prudential will not apply the mental illness limitation to dementia if it is a result of... trauma... or other conditions not listed which are not usually treated by a mental health provider or other qualified provider using psychotherapy, psychotropic drugs, or other similar methods of treatment as standardly accepted in the practice of medicine." Id. at 00029 (emphasis added).

Finally, Prudential will consider Henarie disabled if he is "unable to perform the material and substantial duties of your regular occupation as a partner of KPMG or any other Big Four' accounting firms due to your sickness or injury; and you are under the regular care of a doctor." Id. at 00026 (emphasis in original).

II. Henarie's Medical History

Henarie stopped working at KPMG, after almost 30 years, in mid-September 2005.[1] He filed his claim with Prudential five months later and only after he was certain he could not return to work. Prudential contends the record reflects Henarie suffers from depression. Henarie argues the medical evidence shows he is disabled from physical illnesses, including a traumatic brain injury and post concussive syndrome ("PCS").

A. Henarie's Physicians

Henarie began experiencing syncopal spells (fainting) in July or August 2005. On August 18, as a result of one of these spells while driving, he pulled over to the curb and awoke in his neighbor's yard. AR 231. At the emergency room, he described headaches for the past several weeks and a syncopal spell one week before where he fell and hit his neck. He reported "no difficulty with any specific neurologic complaints." Id . He exhibited no tenderness over the head or scalp and a head CT scan was negative other than some chronic sinus disease. The ER physician recommended a heart monitor, rest, and reevaluation.

Henarie followed up with his primary care physician, Dr. Eugene Uphoff. Henarie described the driving episode in the same way-he blacked out while driving and ended up in his neighbor's yard. He noted one other syncopal episode in the shower and reported increasing headaches as a result. His only other complaint was chest pain. Dr. Uphoff referred Henarie to a cardiologist.

Dr. Aly Rahimtooia, at the Oregon Clinic-Cardiology Division, examined Henarie. Henarie told the doctor about passing out three times in the last four weeks. The first time was just after finishing a shower; Henarie fell down and hit his head. See also AR 268 (consistently reporting fell in shower the first time and woke up with a bruise on his head). The second time occurred while he was in the shower, and he awoke on the floor. The final time was while he was driving, when he ran into a curb (described above). Dr. Rahimtooia noted, "He has been having difficulties with memory as well as headaches, though there is some thought that this may represent postconcussion syndrome." AR 239. The doctor recommended an echocardiogram, noticed the normal head CT, but thought "other etiologies, particularly neurologic ones, cannot be excluded." AR 240. He recommended neurologic input if his cardiovascular evaluation was negative.

Henarie and his wife made an appointment with Dr. Thomas Kasten because they were "frustrated with not knowing why he has had the syncope and wanting to speed up his workup for possible causes." AR 245. Dr. Kasten noted five syncopal episodes in the past five weeks, the third of which "landed him in the hospital after he lost consciousness while driving his car and ran into a cement wall in a neighbor's yard." AR 244. Henarie described persistent headache over the last three weeks, different from his occasional migraine headaches. He "does note some being less well able to concentrate, being easily distracted, sleeping less well in the past three weeks. He also has not worked in the past three weeks. He has a very demanding jobs where errors are not acceptable and he feels unable to return to work at this time." Id . Henarie reported a history of depression. Dr. Kasten reassured Henarie and his wife that the workup thus far had been appropriate.

Henarie went to Dr. Richard Rosenbaum on September 13, 2005. He described hitting the retaining wall, but doubted a head injury. He mentioned having headaches all his life, but now getting "left occipital burning pain... after hitting head with first spell, intermittent, lasts couple of hours, present most days, treatment acetaminophen; left temporal headache also began after hitting head, present most days, lasts about an hour, takes apap." AR 248. He also reported feeling depressed, although having some depression for years due to stress at work, and recent anxiety. He believed his memory was worse and he observed some tingling in his fingers and toes. Dr. Rosenbaum diagnosed syncope versus seizure, probable concussion, and migraine plus new post traumatic headache. Dr. Rosenbaum wrote to Dr. Uphoff, reporting a normal neurologic examination, but needing to exclude seizures with an MRI and a sleep deprived EEG. He also remarked, "He does have a long history of migraine, and now has mild post concussive effects including trouble with memory and headaches." AR 252. Dr. Rosenbaum expected the symptoms to improve over a period of months.

Henarie's sleep-deprived EEG was mildly abnormal and his MRI was essentially negative in late September 2005.

Henarie told Dr. Shawn Patrick about his "frequent massive headaches, which have occurred since he fell and struck his head in the shower but [which] also seem to have become more frequent since he has been having syncopal episodes." AR 260. Dr. Patrick reviewed Henarie's heart monitor results and found "a significant set of sinus pauses at the time of one of these episodes consistent with sick sinus syndrome." AR 261. To correct the problem, Henarie had a pacemaker implanted on October 20, 2005.

Despite the pacemaker, Henarie continued to complain to Dr. Uphoff of fatigue, cold fingers and toes, nausea, and persistent headaches, confusion and forgetfulness. AR 295.

At Dr. Uphoff's request, psychologist Dr. Larry Friedman evaluated Henarie's memory impairment on December 7, 2005. Henarie described several syncopal episodes beginning in July 2005, including falling and striking his head in the bathroom and losing consciousness while driving. He reported experiencing no obvious head trauma. Henarie complained of almost constant headache since the first syncopal episode, limited ability to concentrate for more than 15 minutes, and a less reliable memory. He tested in the superior range of verbal intellectual ability, in the average to high average range of nonverbal intellectual ability. His processing speed index was average and his testing on abstraction, logical analysis and conceptual flexibility was in the average range. Dr. Friedman thought some of the minor abnormalities and inconsistencies in the test results were due to emotional and psychological factors ...

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