Bravo v. The United States Life Ins. Co. In The City Of N.Y.

• Decision Date: 26 March 2010
• Docket Number: No. CIV S-08-1982 LKK/EFB.,CIV S-08-1982 LKK/EFB.
• Citation: 701 F.Supp.2d 1145
• Court: U.S. District Court — Eastern District of California
• Parties: Yvette BRAVO, Plaintiff,v.The UNITED STATES LIFE INSURANCE COMPANY IN the CITY OF NEW YORK; and Does 1 through 20, inclusive, Defendants.

701 F.Supp.2d 1145

Yvette BRAVO, Plaintiff,v.The UNITED STATES LIFE INSURANCE COMPANY IN the CITY OF NEW YORK; and Does 1 through 20, inclusive, Defendants.

No. CIV S-08-1982 LKK/EFB.

United States District Court E.D. California.

March 26, 2010.

COPYRIGHT MATERIAL OMITTED

John M. Riestenberg, Law Offices of John M. Riestenberg, Sacramento, CA, for Plaintiff.

Adrienne C. Publicover, Michael Keith Brisbin, Wilson Elser Moskowitz Edelman and Dicker, San Francisco, CA, for Defendants.

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

This is a state law disability insurance benefits action. After plaintiff collected total disability benefits for one year, defendant insurer terminated her benefits, claiming that plaintiff was not totally disabled. Plaintiff filed suit for breach of contract and insurance bad faith, i.e., tortious breach of the implied covenant of good faith and fair dealing. ¹ Before the court is defendant's motion for summary judgment. The court resolves the matter on the papers and after oral argument. For the reasons explained herein, defendant's motion is denied.

I. BACKGROUND ²

A. Summary

Plaintiff began working for the Stockton Unified School District in 1993. ³ Her duties were essentially constant, although her job title changed several times over the years. As described by her employer, plaintiff's “essential job functions” included “exercise manual dexterity necessary to operate typewriter/computer or calculator,” “sit for long periods of time,” “make arithmetic computations manual or with calculator, [sic]” and “type at a speed of 40 wpm and operate other common office equipment.” Pl.'s Ex. 7, 228. In a form submitted in connection with plaintiff's disability application, plaintiff's supervisor stated that plaintiff's position required her to stand 0-2 hours, walk 0-2 hours, and sit 4-5 hours in an 8 hour work day,⁴ to occasionally lift or carry 0-10 pounds but not more, to use her hands for simple grasping and fine manipulation, and to occasionally bend, squat, twist, turn, and reach above her shoulders. Id. at 281. In 2006, plaintiff's job title was “office assistant.”

Plaintiff suffers from degenerative disk disease and fibromyalgia. She began seeing doctors regarding neck and back pain in 1997. Bravo Decl. ¶ 4. A March 24, 2006 MRI of her cervical spine revealed “significant disc protrusions” throughout the cervical spine, with varying degrees of encroachment, from moderate to severe, with severe encroachment at C3-4, and uncinate spurring.⁵ Degenerative disk disease may lead to chronic pain. As discs degenerate, bone spurs may grow and the spinal canal may narrow, compressing the nerves that run through it, which may cause pain of varying duration and intensity. The pain may be relieved by lying down. Defendant agrees that plaintiff suffers fibromyalgia, degenerative disk disease, and depression. Defendant merely disputes whether these conditions render plaintiff disabled.⁶

Plaintiff ultimately determined that the pain caused by these conditions was so severe that it prevented her from working. She stopped working on June 12, 2006. Through her employment, plaintiff had a disability insurance policy issued by defendant. On July 6, 2006, plaintiff applied for long term disability benefits under this policy, based on neck and back pain. Dr. Le, plaintiff's treating orthopedic surgeon, completed an “attending physician statement” in connection with plaintiff's claim, in which Dr. Le stated that plaintiff was totally disabled.

Defendant approved plaintiff's claim for disability benefits by letter dated August 21, 2006, concluding that her benefit period began on August 7, 2006. In the following ten months, various persons reviewed plaintiff's claim and condition, as discussed in detail below. Defendant ultimately asserted that plaintiff was able to perform her job functions and that plaintiff was not entitled to disability benefits. Defendant terminated plaintiff's benefits effective June 12, 2007. Plaintiff “appealed” this decision through defendant's internal process, and her “appeal” was denied.⁷

B. The Policy's Definition of Disability

The insurance policy at issue in this case defines disability, for purposes of the first two years after a claim is filed, as “the complete inability of the employee to perform the material duties of his regular job; ‘his regular job’ is that which the employee was performing on the day before total disability began.” Pl.'s Ex. 7, 20. The policy further provides that “to be considered totally disabled, ... an employee must also be under the regular care of a physician.” Id.

Another section of the policy imposes the following limitation:

You must be under the ongoing care of a Physician in the appropriate specialty as determined by us, during the Benefit Waiting Period. No LTD Benefits will be paid for any period of Disability when you are not under the ongoing care of a Physician in the appropriate specialty as determined by us.

Id. at 26.

Plaintiff argues that the policy's definitions of disability are unenforceable because the policy was not approved by the California Insurance Commission. On the day before oral argument (i.e., after briefing on this motion was complete) the parties submitted extensive uninvited briefing on the factual question of whether the commission had approved the policy, although neither party has provided any briefing as to the law on this issue. The court resolves the instant motion on other grounds, and does not determine whether the policy was approved or what effect non-approval would have.

C. Plaintiff's Self-Evaluation

Plaintiff describes her pain as disabling. She declares the following:

I am in constant pain, which makes it difficult for me to do anything at a reasonable pace. The pain is constant, but some days are so bad I have to lie down throughout the day. Most days, I get up at 4:00 a.m. or 5:00 a.m. in the morning and go to sleep at 4:00 p.m. in the afternoon. After I get up, I spend about an hour sitting on the couch, laying my head back, resting it and/or rolling it and massaging it to relieve my pain. I do small chores for 30 to 45 minutes, but sit down on the couch most of the day, resting my head throughout the day. When I do simple house chores like washing dishes I have to rest for an hour or two afterwards to relieve the pain. I cannot sit in a chair, even an ergonomic chair, and work for any sustained period of time (less than an hour). If I go shopping or take my mother out [or] for some reason am more active than normal for two or three days, even with a few hours of activity, I will have to take the following day and lay down all day to rest. I have bad days, which occur unpredictably, roughly four to six times in a month, where I have to lay down in bed most of the day to relieve the pain.

Decl. of Yvette Bravo ¶ 11. It should go without saying that this evidence, in itself, would appear to defeat defendant's motion.

D. Health Care Professionals Evaluating Plaintiff

Much of the other evidence in this case consists of statements made by various health care professionals. Six individuals evaluated plaintiff in person. These are:

* Nurse Practitioner Ross and Dr. Ecker, plaintiff's primary care providers.

* Dr. Le, plaintiff's orthopedic surgeon.

* Dr. Clair, a pain management specialist with Northern California Rehabilitation, whom Dr. Le referred plaintiff to.

* Steve Moon, who conducted a “functional capacities evaluation” of plaintiff at defendant's request.

* Dr. Seu, who evaluated plaintiff in connection with her claim for social security benefits.

In addition, two individuals conducted a record review of plaintiff's claims on behalf of defendant:

* Nurse Girard.

* Dr. Wagner.

E. Chronology of Plaintiff's Claim and Evaluations Considered by Defendant1. Dr. Le

Dr. Le, an orthopedic surgeon, began seeing plaintiff in 2001. He diagnosed her with degenerative disk disease, but concluded that she was not a strong candidate for surgery. Dr. Le last saw plaintiff on July 10, 2006, four days after plaintiff applied for long term disability benefits. As noted above, he provided an attending physician's statement in connection with plaintiff's disability claim, wherein he stated that plaintiff was totally disabled and unable to perform her job or any other job. Dr. Le initially stated that plaintiff would be able to return to work by August 19, 2006, but after extending this date twice, he stated that plaintiff was permanently disabled on September 22, 2006.

On October 5, 2006, Dr. Le completed a “physical capacities questionnaire” provided by defendant. Dr. Le concluded that in an eight hour workday, plaintiff could sit for up to two hours, stand for up to two hours, and walk for up to one hour. Pl.'s Ex. 7, 202. Dr. Le further checked a box indicating that plaintiff could frequently (34-66% of the workday) perform fine manipulation with either hand. Id. at 203. Separate from this form, Dr. Le stated that plaintiff's “current restrictions and limitations” were that she could lift, push, or pull no more than five pounds. Id. at 200.

2. Dr. Clair

In the summer of 2006, Dr. Le referred plaintiff to Dr. Clair, a pain management specialist. Dr. Clair examined plaintiff and the report on her MRI on August 10, 2006. After this exam, Dr. Clair diagnosed plaintiff with cervical degenerative disc disease, lumbar degenerative disc disease, chronic pain, and probable right carpal tunnel syndrome . Asire Decl. Ex. A, 161 (Dr. Clair's report).

While Dr. Clair noted that plaintiff's conditions caused pain, he stated that “her subjective complaints of pain rated at a level 10/10 [are] out of proportion with her clinical objective findings.” Id. at 162. Defendant argues that this statement indicates that Dr. Clair concluded that plaintiff overstated her own feelings of pain. This interpretation may draw support from Dr. Clair's statement in deposition that plaintiff did not visually exhibit pain during various tests.⁸ Deposition...