United States District Court, D. Nevada
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.”).
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. 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. Id. at 13, 160.
February 26, 2010, plaintiff submitted to a “telephonic
interview for long term disability
claims.” 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.
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. Id. at 161.
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.
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.
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
January 19, 2010, physician's statement indicates that
Dr. Tsai, who operates a “family practice, ”
diagnosed plaintiff with fibromyalgia and abdominal
pain. 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.
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.
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 “there 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