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Coleman-Fire v. Standard Insurance Co.

United States District Court, D. Oregon

May 7, 2019




         Bethany Coleman-Fire (“Plaintiff”) brings this action under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461, challenging Standard Insurance Company's (“Defendant”) decision, as the administrator for an employer-sponsored benefit plan (the “Plan”), to discontinue Plaintiff's long-term disability (“LTD”) benefits. Now before the Court are the parties' cross-motions for summary judgment (ECF Nos. 23-24). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e)(1). For the reasons that follow, the Court concludes that Plaintiff is entitled to LTD benefits under the Plan.


         Before turning to the merits of the parties' positions, the Court must determine whether to resolve this case on the parties' cross-motions for summary judgment or on a trial on the administrative record. (See Def.'s Mot. at 2, asking the Court to resolve the parties' dispute on summary judgment or, alternatively, on a trial on the administrative record). “The answer depends on what standard of review the court applies.” Rabbat v. Standard Ins. Co., 894 F.Supp.2d 1311, 1313 (D. Or. 2012).

         The parties agree that the de novo standard of review applies here. (Pl.'s Mot. at 2; Def.'s Mot. at 2.) Another judge from this district has surveyed the law and determined that “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.” Rabbat, 894 F.Supp.2d at 1313. The Court agrees that a trial on the administrative record is the appropriate procedure to resolve this dispute because it turns on whether Plaintiff's treating and examining doctors' opinions are more reliable and probative of her condition than the consulting physicians' reports. See Id. at 1322-23 (finding the ERISA plan participant's treating physicians' opinions “more reliable and probative” of the participant's condition than the administrator's consulting physicians' reports, because the treating physicians personally observed the effects of the participant's condition and assessed the credibility of his subjective reports and the consulting physicians never personally examined him). At oral argument, the parties agreed that a trial on the record is the appropriate procedure. The Court therefore issues the following findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52(a). See Rabbat, 894 F.Supp.2d at 1313 (same).



         1. On June 1, 2013, the law firm Davis Wright Tremaine ("DWT") hired Plaintiff- an individual who scored in the 99th percentile on the Law School Admission Test and graduated magna cum laude from Lewis and Clark Law School-as an associate attorney. (Admin. R. ("AR") 198, 508, 1040, 1172.) In her role as an associate attorney, Plaintiff was responsible for drafting legal memoranda, performing legal research, reviewing documents, meeting with clients, and analyzing client matters. (AR 506, 508.) Plaintiffs "work entail[ed] a great amount of mental processing." (AR 179; see also AR 1040, describing Plaintiffs work as "very cognitively demanding" and involving "a significant amount of reading and writing"). During the first eight months of her employment, Plaintiff worked more than seventy hours per week, and she billed approximately 145.4 hours per month. (AR 549, 948.) She had no difficulty fulfilling her job requirements, "even during 10-14-hour days[.]" (AR 1040.)

         2. At approximately 7:00 a.m. on the morning of February 19, 2014, Plaintiff and her spouse were walking their dog in a crosswalk when a car traveling twenty-five miles per hour struck Plaintiff. (AR 146, 177, 506-07.) The impact threw Plaintiffs body onto the car's hood, caused Plaintiffs head to strike and smash the windshield (see below), and caused Plaintiff to fly twenty feet into the air before striking her head for a second time on the pavement. (AR 146, 837.)

         (Image Omitted.)

         3. Upon arriving on the scene, emergency medical responders stabilized Plaintiff (who had road rash on her scalp and multiple contusions) and transported her by ambulance to the hospital. (AR 90, 151, 177.) A computed tomography (“CT”) scan of Plaintiff's brain was normal and x-rays of Plaintiff's cervical spine revealed no fracture. (AR 179.) Plaintiff's CT scan did, however, reveal “a left [posterior] parietal scalp soft tissue injury.” (AR 90, 190.) The emergency room physician, Arman Faroghi, M.D. (“Dr. Faroghi”), noted that Plaintiff did not lose consciousness, [1] Plaintiff complained of pain, a global headache, dizziness, and nausea, and Plaintiff's “[o]verall clinical picture is consistent with post-concussive syndrome and scalp abrasion and contusion.”[2] (AR 188-91.) Plaintiff was discharged from the hospital later that day. (AR 191.)

         4. The next day, February 20, 2014, Plaintiff visited her primary care physician, Richa Uppal, M.D. (“Dr. Uppal”), complaining of a global headache, “worsening vertigo along with nausea, ” pain throughout her body, and pain and tightness in her neck. (AR 146.) Dr. Uppal noted that Plaintiff's spouse took a photograph of her dilated pupils and drooping eyelid after the accident. (AR 146.) Dr. Uppal diagnosed Plaintiff with a concussion, vertigo, nausea, a soft tissue injury, a neck sprain and strain, and a paraspinal muscle spasm. (AR 148.) Dr. Uppal referred Plaintiff to physical therapy and specialists to further address her concussion symptoms. (AR 148.)

         5. Plaintiff presented for her initial physical therapy evaluation on February 27, 2014. (AR 151.) Plaintiff reported that she continued to suffer from headaches, lightheadedness, vertigo, fatigue, and neck discomfort. (AR 152.) Plaintiff's physical therapist, Curtis Persons (“Persons”), observed that Plaintiff's signs and symptoms were consistent with benign paroxysmal positional vertigo (“BPPV”), “post-concussive headaches, and mild cervical strain.” (AR 152.)

         6. In mid-March 2014, less than one month after being struck by the car, Plaintiff returned to work at DWT and “became dizzy and had increased headache after only 10 minutes.” (AR 154.) She also felt nauseous, anxious, and fatigued. (AR 934.) Plaintiff was only able to work for ninety minutes. (AR 934.) Persons advised Plaintiff to avoid strenuous mental activity “as long as [her] symptoms [were] still being provoked.” (AR 154.) Plaintiff attempted to return to work again on April 2, 2014. (AR 154.) Plaintiff worked for about three hours and continued to feel exhausted and suffer from “worsening symptoms” despite engaging in only “minimal activities.” (AR 934.)

         7. In a report dated April 3, 2014, Jeffrey Brown, M.D. (“Dr. Brown”), a neurologist, noted that Plaintiff was evaluated for posttraumatic dizziness. Dr. Brown determined that Plaintiff's chronic daily headaches and dizziness were likely the result of her concussion. (AR 170.)

         8. Also on April 3, 2014, Plaintiff visited Sean Robinson, M.D. (“Dr. Robinson”), a physician at Oregon Health and Science University (“OHSU”) who specializes in sports medicine, for a concussion evaluation. (AR 934.) Dr. Robinson determined that Plaintiff was “[e]ntering” PCS “as it [wa]s now 6 weeks since [the] accident and [Plaintiff was] quite symptomatic still.” (AR 937.) Dr. Robinson referred Plaintiff to Dr. Brown for a follow-up. (AR 937.)

         9. In a report dated April 29, 2014, Dr. Brown stated that Plaintiff's test results indicated that “her issues are related to her head injury on a central and nonperipheral basis.” (AR 117.)

         10. In May 2014, Plaintiff, who was actively engaged in her recovery program, attempted to return to work on a part-time basis. (AR 549, 955, 1039.) Plaintiff, however, was not able to sustain part-time work as an attorney because she continued to suffer from debilitating PCS symptoms, including, but not limited to, light and noise sensitivity, “lots of fatigue, ” fatigue-related dizziness, constant headaches in the mild to severe range, difficulty maintaining concentration for more than twenty minutes, difficulty reading with both eyes open, “decreased balance with eyes closed, ” and “wooziness with cervical extension.” (AR 549, 955, 961.)

         11. Also in May 2014, Rosemary Detmer Stone, M.D. (“Dr. Detmer Stone”), an ophthalmologist, performed a neuro-optometric evaluation, which “showed convergence insufficiency, saccadic eye movement dysfunction, and mild accommodative insufficiency.” (AR 1039.)

         12. On August 4, 2014, Plaintiff returned to work on a part-time basis with the intent gradually to increase her workload. (AR 549, 989.) Plaintiff, however, continued to suffer from significant concussion-related symptoms, including, but not limited to, neck pain, light and noise sensitivity, difficulty reading in excess of forty-five minutes, worsening headache pain after “visual discrimination and visual memory, ” impaired “peripheral and convergence . . . [which elicited] her symptoms, ” constant headaches, feeling “slowed down, ” sadness, feeling nervous or anxious, fatigue, irritability, and difficulty concentrating, remembering, proofreading, and organizing.[3] (AR 993, 998, 1000-01, 1004, 1006.) In the months that followed, Plaintiff could not sustain full-time work on a regular and continuous basis. (AR 1016, 1019.) During this time, James Chesnutt, M.D. (“Dr. Chesnutt”), a treating concussion specialist, recommended that Plaintiff consider using Zoloft, an antidepressant, to address the changes in Plaintiff's “mood and energy” following the accident. (AR 1001-02.) Approximately one month later, Plaintiff started taking Wellbutrin, a different antidepressant, and reported feeling “a boost to her mood and energy levels.” (AR 125, 1039; see alsoTr. 129, informing Dr. Uppal about the “post-concussion care” provider's suggestion that Plaintiff's mood and energy deficits might improve on an antidepressant medication).

         13. On December 3, 2014, Plaintiff filed a claim for LTD benefits under the Plan. (AR 506-08.) In her application for LTD benefits, Plaintiff cited her concussion, PCS, whiplash, depression, and anxiety as the illnesses contributing to her inability to work at her occupation, and she cited the February 19, 2014 accident as the incident that caused her illnesses. (AR 506.) Plaintiff's LTD application also included an Attending Physician's Statement in which Plaintiff's primary care physician, Dr. Uppal, stated that Plaintiff can perform “75% of [her] normal workload” and that her treatment and assessment of Plaintiff was complicated by her “situational depression.” (AR 164.) The record indicates that Dr. Uppal later acknowledged that Plaintiff's situational depression “could be related to the accident and the ensuing illness.” (AR 1068; see also AR 1039, indicating that on April 27, 2015, Plaintiff appeared for a neuropsychological evaluation, “denied [a] history of psychiatric illness or treatment prior to the [February] 2014 accident, ” acknowledged “seeing a counselor and taking psychiatric medication this year to help adjust to the effects of her head injury, including changes in mood and anxiety, ” described her “typical mood and outlook pre-injury as generally unflappable, ” and stated that she now “becomes more easily upset and has less patience, especially when stressed and/or fatigued”).

         14. In February 2015, DWT “direct[ed]” Plaintiff to “do more at work, ” even though Plaintiff continued to suffer from “extreme fatigue every day, ” which resulted in “significant reading and writing errors” due to Plaintiff's decreased “attention and concentration.” (AR 1050.)

         15. On April 27, 2015, Dr. Chesnutt referred Plaintiff to Sarah Walker, Ph.D. (“Dr. Walker”), a neuropsychologist at OHSU, for an evaluation to determine the “nature and extent” of Plaintiff's “cognitive impairment.” (AR 1038; see also AR 1037, stating that the referral was based on Dr. Chesnutt's “concern for persisting cognitive decrements after head injury”). Dr. Walker's evaluation included a diagnostic interview and a standardized cognitive and personality assessment. (AR 1037.) Dr. Walker also reviewed Plaintiff's medical records. (AR 1038.) Dr. Walker's results indicated that Plaintiff possessed “very superior” verbal intellect/reasoning; superior nonverbal intellect/reasoning, auditory working memory, and verbal fluency; and above average verbal and visual learning and memory. (AR 1037-38.) Dr. Walker's results, however, also indicated that Plaintiff's “[s]peed of information processing fluctuated from mildly impaired to average, ” and her “[c]omplex problem-solving, auditory attention, and rapidly shifting attention back and forth were also below average and considerably below what [Dr. Walker] would expect in comparison to her excellent abilities in other domains.” (AR 1038.) In terms of validity, Dr. Walker observed that Plaintiff was adequately engaged and that Plaintiff's “results can be considered a valid and accurate reflection of her current abilities.” (AR 1041.)

         16. On June 16, 2015, Deborah Syna, M.D. (“Dr. Syna”), a neurologist, reviewed Plaintiff's records at Defendant's request and provided an opinion regarding Plaintiff's LTD claim. (AR 90-92.) Dr. Syna informed Defendant that, in her opinion, Plaintiff “reached medical stability by December 2014, although 2 of her examiners opined that there [is] a problem with cognitive processing.” (AR 91.) Dr. Syna also recommended that Defendant obtain copies of Plaintiff's neuropsychological testing and stated that Plaintiff's medical records indicate that she “became significantly depressed and anxious in September 2014 and that depression and anxiety may be a barrier to return to fulltime work.” (AR 91-92.) The medical record indicates that on April 3, 2014, Plaintiff endorsed feeling sad, more emotional than usual, and nervous or anxious and that Dr. Robinson considered and documented these concussion symptoms in calculating Plaintiff's SCAT score. (AR 934-35.) The medical record also indicates that Plaintiff did not have a history of psychiatric illness or treatment prior to the February 19, 2014 accident. (AR 1039.)

         17. On July 1, 2015, Defendant approved Plaintiff's LTD claim through December 12, 2014. (AR 321.) Defendant determined that there was insufficient documentation to support finding Plaintiff disabled beyond December 12, 2014, because it did not have a copy of Plaintiff's “neuropsychological evaluation supporting ongoing cognitive impairment, or medical ...

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