United States District Court, D. Oregon
J. Olson HARRANG LONG GARY RUDNICK P.C. Attorney for
Plaintiff Robert B. Miller
KILMER, VOORHEES & LAURICK, P.C. Attorney for Defendant
OPINION & ORDER
A. Hernandez United States District Judge
Alison Gary brings this action under the Employee Retirement
Income Security Act of 1974, 29 U.S.C. §§ 1001-1461
(ERISA), alleging that Defendant Unum Life Insurance Company
of America wrongfully denied her application for long-term
disability benefits. Plaintiff moves for summary judgment on
her second claim for relief contending that Defendant
violated her right to a "full and fair review" of
the denial under 29 U.S.C. § 1133 and its implementing
regulation, 29 C.F.R. § 2560.503-1. She seeks the
retroactive reinstatement of long-term disability benefits
from April 6, 2015 to the date of judgment in this case. I
grant the motion in part and deny it in part. I agree with
Plaintiff that Defendant violated § 1133 but I find that
a retroactive reinstatement of benefits is not the
September 2012, Plaintiff became employed as an attorney at
Dickstein Shapiro LLP. First Am. Compl. ¶ 5, ECF 24.
Dickstein Shapiro has a Group Long Term Disability Plan
administered by Defendant. Id. ¶¶ 1, 2.
Plaintiff asserts that she became totally disabled and that
her physician ordered her to cease practicing law on November
27, 2013. Id. ¶ 5. She stopped practicing law
the next business day, December 1, 2013, and alleges that she
has been unable to practice law since that date. Id.
September 1, 2016, Plaintiff filed a claim for long-term
disability (LTD) benefits with Defendant, seeking benefits
since the November 27, 2013 disability onset date. Olson Nov.
30, 2017 Decl. ¶ 1, ECF 10. In seeking LTD benefits,
Plaintiff noted that she "is, and was at all times from
the beginning" of her eligibility, "disabled under
the terms of the policy." Miller Jan. 5, 2018 Decl., Ex.
1 at 1, ECF 20-1. She asserted that she became disabled one
year after she began working at Dickstein Shapiro, and
"continues to remain unable to work as an
attorney[.]" Id., Ex. 1 at 2. She recited
several facts about her impairments and treatment from
November 2013 through October 2016 and in conclusion asserted
that she "is and has continuously since November 2013
been completely disabled under the terms of the LTD
Plan." Id., Ex. 1 at 5. She also included more
than sixty pages of medical records. Id., Ex. 1 at
initially responded with a request for additional information
and a one month payment of benefits under a reservation of
rights. Olson Nov. 30, 2017 Decl. ¶ 3 & Ex. 1, ECF
10-1. Then, on February 24, 2017, Defendant sent a letter to
Plaintiff denying her claim ("the February 24, 2017
decision letter" or "the Initial Denial").
Id. ¶ 4 & Ex. 2, ECF 10-2. In the section
entitled "Decision/Reason, " Defendant wrote:
"We have determined your client was not disabled through
the 180 day elimination period. Because [Plaintiff] was not
disabled through this period, according to the policy,
benefits are not payable." Id., Ex. 2 at 1.
Defendant's February 24, 2017 decision letter included
two single-spaced pages under the heading "Information
That Supports Our Decision, " discussing the evidence
Defendant reviewed in assessing Plaintiff's claim.
Id., Ex. 2 at 2-4. First, Defendant explained that
the policy has a 180-day elimination period during which time
the claimant must be continuously disabled in order to
receive disability benefits. Id., Ex. 2 at 2. In
this case, the elimination period began on November 27, 2013
and ended May 25, 2014. Id. Next, Defendant cited to
various medical records provided by Plaintiff. Id.,
Ex. 2 at 2-4. Following that, Defendant provided relevant
policy provisions for defining disability, the elimination
period, and termination of coverage. Id., Ex. 2 at
4-5. Finally, the February 24, 2017 decision letter included
an explanation of Plaintiff's right to appeal, how to
pursue an internal appeal, and if necessary, the right to
file an ERISA action in court. Id., Ex. 2 at 6-7.
filed her administrative appeal on June 8, 2017. Olson Nov.
30, 2017 Decl. ¶ 5. In support, she submitted a
fifty-one page, mostly single-spaced letter, along with
thirty-two exhibits totaling more than two hundred pages.
Miller Jan. 5, 2018 Decl. ¶ 3 & Ex. 2, ECF 20-2.
responded to the appeal in a July 26, 2017 letter ("the
Final Decision."). Olson Nov. 30, 2017 Decl. ¶ 6
& Ex. 3, ECF 10-3. The Final Decision explained
Defendant's "Appeal Decision" as follows:
On appeal, we have determined [Plaintiff] was disabled from
Nov. 27, 2013, through April 6, 2015. We are approving LTD
benefit payments for that period.
After April 6, 2015, we have concluded [Plaintiff] was able
to perform the duties of [her] regulation occupation and no
longer met the definition of disability in the policies.
Id., Ex. 3 at 2. The Final Decision included a
several page, single-spaced section with information
supporting Defendant's decision, followed by applicable
policy provisions including the definition of disability.
Id., Ex. 3 at 2-9. It also explained that if
Plaintiff disagreed with the decision, she could file a civil
ERISA suit. Id., Ex. 3 at 10. No right to an
internal review was mentioned. This lawsuit followed.
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party bears the initial responsibility of informing the court
of the basis of its motion, and identifying those portions of
"'the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed.R.Civ.P. 56(c)).
the moving party meets its initial burden of demonstrating
the absence of a genuine issue of material fact, the burden
then shifts to the nonmoving party to present "specific
facts" showing a "genuine issue for trial."
Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924,
927-28 (9th Cir. 2009) (internal quotation marks omitted).
The nonmoving party must go beyond the pleadings and
designate facts showing an issue for trial. Bias v.
Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 324).
substantive law governing a claim determines whether a fact
is material. Suever v. Connell, 579 F.3d 1047, 1056
(9th Cir. 2009). The court draws inferences from the facts in
the light most favorable to the nonmoving party. Earl v.
Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th
factual context makes the nonmoving party's claim as to
the existence of a material issue of fact implausible, that
party must come forward with more persuasive evidence to
support his claim than would otherwise be necessary.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
Applicable ERISA Statute & Regulation ERISA imposes
various obligations on employee benefit plans, including
prescribing certain claim procedure requirements. Section
1133 provides that "[i]n accordance with regulations of
the Secretary, every employee benefit plan shall":
(1) provide adequate notice in writing to any participant or
beneficiary whose claim for benefits under the plan has been
denied, setting forth the specific reasons for such denial,
written in a manner calculated to be understood by the
(2) afford a reasonable opportunity to any participant whose
claim for benefits has been denied for a full and fair review
by the appropriate named fiduciary ...