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Decovich v. Venetian Casino Resort, LLC

United States District Court, D. Nevada

January 26, 2017

MIAE DECOVICH, Plaintiffs,
v.
VENETIAN CASINO RESORT, LLC, et al., Defendants.

          ORDER

         The court presently considers the administrator's record in case no. 2:11-cv-00872-JCM-CWH and its application to the parties' respective motions for judgment on the pleadings and administrative record (ECF Nos. 25, 26), in accordance with the Ninth Circuit's memorandum. (ECF No. 42) (“Thus, on remand, review should be on the record that was before the administrator.”).

         I. Background

         On May 31, 2011, plaintiff filed a complaint in this court, alleging that defendant had wrongfully denied her long-term disability (“LTD”) benefits in violation of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B). Plaintiff stopped working as a dealer at the Venetian Casino Resort on September 28, 2009, because, she asserts, her fibromyalgia had become disabling. Anthem-000013, 399; see also Anthem-000012.[1] She later filed a claim for long-term disability benefits on January 18, 2010. Anthem-000402-06. Custom Disability Solutions (“CDS”) is the claims advisory agent for defendant Anthem Life Insurance Company (“Anthem”), which is the long term disability insurance carrier for the Venetian Casino Resort Group LTD policy.[2] Id. at 13, 160.

         On February 26, 2010, plaintiff submitted to a “telephonic interview for long term disability claims.”[3] Id. at 519. The records of the call indicate that plaintiff stated that she had been diagnosed with fibromyalgia, mostly impacting her lower back, and some stomach pain, which prevent her from working. Id. at 520. Plaintiff additionally indicated how:

She has headaches, hands, knees, shoulders are sore. She is unable to lift anything and loses her balance. It is sometimes to [sic] open her left eye due to muscle weakness. She also noted she has problems with memory loss. She lays down a lot.

Id. She further indicated that she had been treated by Dr. Jianu, a rheumatologist. See Id. at 49, 521. Plaintiff also stated on that call that she cannot do laundry, cook, or do housework; her roommate is responsible for taking plaintiff to doctor appointments. Id. at 522. When asked about her exercise, the record indicates that plaintiff “d[id] some stretching.” Id. at 523.

         A May 14, 2010, letter from CDS informed plaintiff that her LTD claim had been denied. Id. at 160. The letter indicates that CDS's decision was based on: (1) the medical records from September 28, 2009, to that date from Drs. Tudor Jianu, Edward Tsai, Robert Yeh, Gregory Baker, and Michael Milligan; (2) Dr. Paul Howard's peer review; and (3) Dr. Tsai's response to that peer review.[4] Id. at 161.

         The letter indicates CDS's cognizance of Dr. Tsai's report that plaintiff also suffered from stomach pains, had trouble standing for prolonged periods, and plaintiff reported an intention to consult with specialists. Id.; see also Anthem-000167. However, the letter indicates that Dr. Tsai “did not provide any restrictions or limitations.” Anthem-000161.

         Ultimately, the letter concluded that:

[A]lthough [plaintiff] ha[s] self-reports of pain and have been diagnosed with fibromyalgia, the medical evidence does not provide objective data that [her] condition raises to the level of functional impairment, which would preclude [plaintiff] from performing [her] own occupation as a Dealer. Therefore, we are unable to extend benefits to [plaintiff], as [she] did not meet the definition of disability throughout the elimination period and ongoing as defined by the policy.

Id.

         Although CDS's letter states that Dr. Tsai did not include “restrictions or limitations, ” and Dr. Tsai's response to CDS question reflecting that language is blank, he did indicate the stomach issues and difficulty standing in response to the question “What are the current precluding factors that prevent Ms. Decovich from returning to work in her own occupation as a Casino Dealer based on her new diagnosis of fibromyalgia at this date?” Id. at 161, 67. Dr. Tsai ultimately concluded that “the anticipated return to work date for Ms. Decovich” or “estimated length of duration for recovery” is “unknown.” Id. at 168.

         A January 19, 2010, physician's statement indicates that Dr. Tsai, who operates a “family practice, ” diagnosed plaintiff with fibromyalgia and abdominal pain.[5] Id. at 406. Dr. Tsai claimed that Decovich could not stand, sit or walk for more than 15 minutes at a time, among other limitations. Id. at 31. Dr. Barry Gendron, reviewing referred files on behalf of CDS, noted that Dr. Tsai's file does not support these restrictions and limitations. Id. at 406. Dr. Tsai also indicated that Decovich had these restrictions and limitations since 2008, even though Decovich worked until September 2009. Id. at 31-32. Dr. Gendron found these restrictions and limitations unsupported for this additional reason as Decovich continued to work during the time that she purportedly could not sit, stand, or walk more than 15 minutes at a time. Id. at 41-42. Dr. Gendron also noted that Dr. Tsai deferred his opinion to Decovich's treating specialist. Id. at 22-23; see also Anthem-000138-44.

         Dr. Howard's peer review was transmitted on April 22, 2010. Anthem-000169. He concluded that plaintiff had fibromyalgia “based on widespread pain” and noted that Dr. Baker's evaluation did not describe the location of plaintiff's “tender points.” Id. at 172. He further determined that “[plaintiff] has no evidence of any loss of muscle tone, loss of range of motion in any peripheral joints, or in cervical, thoracic or lumbar spine.” Id. at 173. Dr. Howard continues, stating: “She has no evidence of any abnormalities in station and gait or any focal neurologic abnormalities. There is no evidence of muscular atrophy.” Id. Excluding a finding of allodynia, Dr. Howard concluded that “there is no objective foundation for functional impairment. [Plaintiff's] functional impairment is self-reported and is not supported by the physical examination findings.” Id.

         Additionally, Dr. Howard considered that plaintiff may have irritable bowel syndrome, gastritis “that is partially controlled with acid suppression therapy, ” chronic opioid dependency, and depression. Id. He found that the first, second, and fourth maladies either did not indicate functional impairment or there was a lack of evidence indicating functional impairment. Id. Dr. Howard additionally asserted that he is unable to determine whether the depression resulted in functional impairment. Id. In sum, Dr. Howard reported that ‚Äúthere are no physical restrictions or limitations as it relates to sitting, standing, walking, lifting, carrying, pushing, pulling, reaching or with repetitive and fine motor hand ...


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