Case 2:21-cv-06644-PA-AFM Document 40 Filed 07/15/22 Page 1 of 10 Page ID #:1062 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 THEODOR ATANUSPOUR, No. CV 21-6644 PA (AFMx) 12 Plaintiff, FINDINGS OF FACT AND

CONCLUSIONS OF LAW

13 v. 14 RELIANCE STANDARD LIFE

INSURANCE COMPANY,

15 Defendant. 16 17 18 19 This is an Employee Retirement Income Security Act (“ERISA”) action for recovery 20 of long-term disability benefits. Plaintiff Theodor Atanuspour (“Plaintiff” or “Atanuspour”) 21 seeks benefits under a group insurance policy issued to The RSL Employer Trust by 22 defendant Reliance Standard Life Insurance Company (“Defendant” or “Reliance”). 23 Reliance filed the Administrative Record (“AR”) (Docket No. 24) which the Court 24 received (Docket No. 39.) Following the filing of the parties’ Opening and Responsive Trial 25 Briefs, the submission of their respective Proposed Findings of Fact and Conclusions of 26 Law, and their objections to each other’s Proposed Findings of Fact and Conclusions of 27 Law, the Court, sitting without a jury, conducted a bench trial on June 7, 2022. 28 Case 2:21-cv-06644-PA-AFM Document 40 Filed 07/15/22 Page 2 of 10 Page ID #:1063 1 Having considered the materials submitted by the parties and after reviewing the 2 evidence, the Court makes the following findings of fact and conclusions of law pursuant to 3 Federal Rule of Civil Procedure 52(a). Any finding of fact that constitutes a conclusion of 4 law is hereby adopted as a conclusion of law, and any conclusion of law that constitutes a 5 finding of fact is hereby adopted as a finding of fact. 6 I. Findings of Fact 7 1. This is an action for recovery of long-term disability (“LTD”) benefits under 8 ERISA. This Court has jurisdiction of this matter pursuant to 29 U.S.C. §§ 1132(a), (e), (f) 9 and (g), as well as 28 U.S.C § 1331. 10 2. Venue is proper in this district because a substantial part of the events giving 11 rise to the claim occurred within the Central District of California. 28 U.S.C. § 1391(b)(2). 12 3. The parties agree that the trial of this action is subject to the Court’s de novo 13 review. (Docket Nos. 27-28.) 14 4. Atanuspour worked as the General Sales Manager, a sedentary occupation, for 15 Trophy Automotive Dealer Group, LLC (“Trophy Automotive”) at its Kia Downtown Los 16 Angeles business. (AR 89, 161-169, 625-627.) 17 5. Reliance issued a Group Long Term Disability Insurance Policy (“Policy”) to 18 The RSL Employer Trust of which Trophy Automotive is a participating unit and Kia 19 Downtown of Los Angeles is a covered entity. (AR 2-9.) 20 6. Plaintiff received coverage under the Policy as an “active, Full-time Employee 21 earning an annual salary of at least $ 15, 000 of Trophy Automotive.” (AR 9, 18, 47, 110.) 22 7. The Insuring Clause provision under the Policy states that Reliance will pay a 23 Monthly Benefit if an Insured: (1) is Totally Disabled as the result of a Sickness or Injury 24 covered by this Policy; (2) is under the regular care of a Physician; (3) has completed the 25 Elimination Period; and (4) submits satisfactory proof of Total Disability . . . (AR 20.) 26 8. The Policy defines “Totally Disabled” and “Total Disability” to mean, that as a 27 result of an Injury or Sickness: 28 -2- Case 2:21-cv-06644-PA-AFM Document 40 Filed 07/15/22 Page 3 of 10 Page ID #:1064 1 (1) during the Elimination Period and for the first 24 months for which a 2 Monthly Benefit is payable, an Insured cannot perform the material duties of 3 his/her Regular Occupation; 4 (a) “Partially Disabled” and “Partial Disability” mean that as a 5 result of an Injury or Sickness an Insured is capable of 6 performing the material duties of his/her Regular Occupation on 7 a part-time basis or some of the material duties on a full-time 8 basis. An Insured who is Partially Disabled will be considered 9 Totally Disabled, except during the Elimination Period; 10 (b) “Residual Disability” means being Partially Disabled during 11 the Elimination Period. Residual Disability will be considered 12 Total Disability; and 13 (2) after a Monthly Benefit has been paid for 24 months, an Insured cannot 14 perform the material duties of Any Occupation. We consider the Insured 15 Totally Disabled if due to an Injury or Sickness he or she is capable of only 16 performing the material duties on a part-time basis or part of the material 17 duties on a full-time basis. 18 (AR 12.) The Policy contains an elimination period defined as 90 consecutive days of total 19 disability for which no benefit is payable. The 90-day period begins on the first day of total 20 disability. (AR 9-11.) 21 9. The last day Atanuspour worked at Trophy Automotive was August 7, 2019. 22 (AR 42, 114.) Plaintiff stopped working on August 8, 2019. (AR 150.) As a result, the 23 elimination period ran from August 8, 2019 through November 6, 2019. (AR 42, 146-148.) 24 10. On August 8, 2019, Dr. Arakel Davtian, M.D., a psychiatrist, performed an 25 initial psychiatric evaluation on Atanuspour. (AR 207-209.) Dr. Davtian diagnosed 26 Plaintiff with Generalized Anxiety Disorder (“GAD”) and prescribed him Remeron and 27 Trintellix to treat his condition. (AR 210.) 28 -3- Case 2:21-cv-06644-PA-AFM Document 40 Filed 07/15/22 Page 4 of 10 Page ID #:1065 1 11. Plaintiff continued to receive psychiatric examinations from Dr. Davtian 2 during additional visits in August, September, and a final visit on October 10, 2019. (AR 3 211-214.) Psychiatric progress notes from each visit show that Plaintiff had a GAD 4 diagnosis and prescriptions for Remeron, Trintellix, and Ativan as part of his treatment plan. 5 (Id.) The last medication adjustment took place on August 22, 2019 and Dr. Davtian’s 6 records do not describe any symptoms beyond October 4, 2019. 7 12. Dr. Davtian consistently reported that he provided Atanuspour “supportive 8 therapy” and “[i]dentified stressors which would make the depression worse and given 9 advice of ways to cope.” (AR 210-215.) 10 13. On October 2, 2019, Atanuspour first received treatment from Dr. Elham 11 Nemat, D.C., QME, a chiropractor affiliated with Primary Health Clinic. (AR 217-227.) 12 14. Records from Primary Health Clinic indicate Plaintiff received chiropractic 13 treatment twice a week starting in October 2019 through December 2019. (AR 220-225.) 14 Plaintiff also received chiropractic treatment at Primary Health Clinic in July 2019, as well 15 as January, February, March, and May 2020. (AR 321-323, 332-336, 522-523.) 16 15. Dr. Nemat, in a Patient Status Report dated November 13, 2019, wrote that 17 Atanuspour was experiencing myofasciitis, IVD (intervertebral disc) syndrome, severe 18 bilateral sciatic, and “lumbar region muscle spasms radiating down both legs w/ numbness 19 [and] tingling [,] shooting pain to feet.” (AR 222.) Dr. Nemat also stated that Plaintiff is 20 unable to return to work. (Id.) 21 16. According to Dr. Nemat, Plaintiff was temporarily totally disabled from 22 October 23, 2019 through December 20, 2019, or “further notice.” (AR 222.) Dr. Nemat 23 listed Plaintiff’s restrictions as limited walking, no climbing, limited bending, stooping, and 24 kneeling, limited standing, no overhead working, limited lifting to 5 lbs, and no operating 25 vehicle or machine. (Id.) 26 17. Atanuspour submitted a claim for LTD benefits to Reliance on December 4, 27 2019. (AR 122, 150-152.) Plaintiff listed Dr. Davtian and Dr. Nemat as the medical 28 practitioners treating his conditions. (AR 152.) -4- Case 2:21-cv-06644-PA-AFM Document 40 Filed 07/15/22 Page 5 of 10 Page ID #:1066 1 18. In his LTD claim form, Plaintiff wrote that on August 8, 2019 he first noticed 2 symptoms of “anxiety high-level and high stress headaches and upper and lower back pain.” 3 (AR 150.) Plaintiff further explained: “I get very bad anxiety through [] the day and panic 4 attacks daily[.] Stress trigger[s] my anxiety attacks. I feel overwhelmed and I can’t breathe. 5 Lower [] hip, back, and neck pain.” (Id.) 6 19. In support of his LTD claim, Plaintiff submitted a Physician Statement from 7 Dr. Nemat dated November 22, 2019. (AR 154.) Dr. Nemat diagnosed Plaintiff with low 8 back pain; upper back pain; other intervertebral disc degeneration, lumbar region; sprain of 9 ligaments of cervical spine; sciatica, right side; and sciatic, left side. (Id.) 10 20. Moneco Foulker, RN, BSN, CCRN, a member of Reliance’s medical 11 department, reviewed Plaintiff’s records from Dr. Davtian and Dr. Nemat. (AR 49.) Nurse 12 Foulker opined that Plaintiff’s claim file supported an inability to work from August 8, 2019 13 through October 4, 2019. (Id.) 14 21. With respect to Plaintiff’s mental disorder, Nurse Foulker concluded that “lack 15 of work function is supported at the date of loss through 10/04/19 for exacerbation of 16 anxiety with medication adjustments” and “[r]ecords do not describe a severity of symptoms 17 beyond 10/04/19 that rise to a level of impairment interfering with work capacity.” (AR 49.) 18 Citing to Dr. Davtian’s record, Foulker reported the following: 19 • On 08/08/19 claimant presented to established care due to exacerbation 20 of “extreme” anxiety with depressive mood, reporting sleep 21 disturbance, panic attacks, heart palpitations, shortness of breath and 22 tension headaches. Mental examination noted cooperative behavior 23 with clear speech, and normal concentration, insight & judgement, with 24 euthymic mood. Provider opined anxiety disorder, thus prescribed 25 Remeron 7.5mg & Trintillex 5mg. 26 • On 08/22/19 MD increased Trintillex to 10mg, and prescribed Ativan 27 1mg daily as needed, for unchanged reported anxiety. Claimant 28 returned on 09/05/19, 09/19/19 & 10/10/19 reporting prescribed -5- Case 2:21-cv-06644-PA-AFM Document 40 Filed 07/15/22 Page 6 of 10 Page ID #:1067 1 medications are giving some relief with ongoing, unchanged reported 2 symptoms. 3 • Claimant returned on 09/05/19, 09/19/19 & 10/10/19 reporting 4 prescribed medications are giving some relief with ongoing, unchanged 5 reported symptoms. Exam & treatment plan unchanged. 6 • Additional records beyond 10/10/19 are not on file. 7 (Id.) 8 22. With respect to Plaintiff’s physical condition, Nurse Foulker opined that “[b]y 9 10/04/19 claimant capable of returning to prior work capacity without restrictions.” (AR 10 49.) Citing to Dr. Nemat’s record, Foulker reported the following: 11 • Based on available medical records subjective reported back pain is not 12 supported. Although claimant reports subjective back pain symptoms, 13 and is treating maintenance manipulation with Chiropractor, records on 14 file do not support objective clinical examination & diagnostic findings 15 at a quality/severity to prevent or impair work capacity. 16 • Records are negative for typical objective diagnostics testing of back 17 pain at a severity to preclude work function: x-ray, electromyography & 18 nerve conduction studies, MRI, physical exam or prescribed 19 medications (Steroids, Narcotics, Anti-inflammatory, or Muscle 20 Relaxers). Records are negative for documentation of: abnormal gait, 21 extremity weakness, muscle atrophy, neurovascular compromise, 22 impaired daily living activities, or restricted driving. 23 (Id.) 24 23. Reliance denied Atanuspour’s claim for LTD benefits by letter dated February 25 24, 2020. (AR 113-116.) Reliance determined that based on its medical department’s 26 review of the available medical records on file, Plaintiff did not meet the Policy’s “definition 27 of Total Disability beyond the LTD elimination period of 90 days.” (AR 115.) 28 -6- Case 2:21-cv-06644-PA-AFM Document 40 Filed 07/15/22 Page 7 of 10 Page ID #:1068 1 24. On March 17, 2020, Plaintiff notified Reliance of his intent to appeal the 2 denial of LTD benefits. (AR 233-234.) 3 25. On February 9, 2021, Plaintiff appealed Reliance’s denial of LTD benefits. 4 (AR 354.) 5 26. In his appeal letter, Atanuspour claimed an ongoing disability due to 6 intervertebral disc disorders: chronic pain that radiates from low back to buttock, down the 7 posterolateral aspects of both legs, and down to feet; lumbar radiculopathy; lumbar 8 foraminal stenosis; a sizable disc protrusion of lumbar intervertebral discs at L4/5 and 9 L5/S1; lumbar spondylosis; and spinal canal stenosis. (AR 354-357.) 10 27. The majority of the documentation that Atanuspour submitted as part of his 11 appeal postdate the elimination period: (1) a declaration from Plaintiff; (2) a declaration 12 from Plaintiff’s wife; (3) a spinal surgery re-evaluation report dated January 20, 2021 from 13 Dr. Payman, an orthopedist; (4) a functional capacity evaluation (“FCE”) report dated 14 November 11, 2020 from Dr. De Los Reyes, PT, DPT, a physical therapist; (5) medical 15 records dated from June 25, 2020 to January 11, 2021 from Dr. Vahedifar, M.D., a pain 16 management specialist; (6) medical records dated from December 9, 2020 to January 20, 17 2021 from Dr. Payman; (7) medical records from Primary Health Clinic dated from July 5, 18 2019 to May 26, 2020; (8) medical records dated from October 21, 2020 to December 17, 19 2020 from AJ Physical Therapy, Inc.; (9) an MRI of Plaintiff’s lumbar spine dated 20 December 18, 2020; (10) and an MRI of Plaintiff’s lumbar spine dated December 28, 2018. 21 (AR 354-355.) 22 28. Reliance referred Plaintiff’s file to a third-party vendor that arranged for an 23 independent review by Howard Grattan, M.D., board certified in physical medicine and 24 rehabilitation, and pain management. Dr. Grattan conducted a paper review of Plaintiff’s 25 records between July 2019 and February 2021. (AR 123, 559.) 26 29. Dr. Grattan opined on Plaintiff’s functional capabilities in a report dated April 27 27, 2021. According to Dr. Grattan, Plaintiff “would not be functionally impaired until 28 -7- Case 2:21-cv-06644-PA-AFM Document 40 Filed 07/15/22 Page 8 of 10 Page ID #:1069 1 11/04/20, when a Functional Capacity Evaluation found him unable to work at any 2 occupation level.” (AR 562-563.) 3 30. After review of supplemental medical records from Dr. Vahedifar and Dr. De 4 Los Reyes, Dr. Grattan created an addendum report dated May 28, 2021. (AR 622-624.) 5 Dr. Grattan stated that his previous determinations remain unchanged: “The claimant would 6 require the restrictions and limitations as previously outlined from 11/04/2020 going 7 forward.” (Id.) 8 31. Based in part on Dr. Grattan’s conclusions, Reliance upheld its decision on 9 June 7, 2021. (AR 122-124.) 10 II. Conclusions of Law 11 1. In a de novo review, “the burden of proof is placed on the claimant” to 12 establish entitlement to plan benefits. Muniz v. Amec Const. Mgmt., Inc., 623 F.3d 1290, 13 1294 (9th Cir. 2010). “When conducting a de novo review of the record, the court does not 14 give deference to the claim administrator’s decision, but rather determines in the first 15 instance if the claimant has adequately established that he or she is disabled under the terms 16 of the plan.” Id. at 1295-96. 17 2. “[A] district court may, in conducting its independent evaluation of the 18 evidence in the administrative record [on de novo review] take cognizance of the fact . . . 19 that a given treating physician has a greater opportunity to know and observe the patient than 20 a physician retained by the plan administrator.” Jebian v. Hewlett-Packard Co. Emp. 21 Benefits Org. Income Protection Plan, 349 F.3d 1098, 1109 n.8 (9th Cir. 2003). 22 III. Analysis 23 The Court concludes, after reviewing the Administrative Record, and considering the 24 arguments and Trial Briefs submitted by the parties, that Atanuspour failed to satisfy his 25 burden to establish entitlement to LTD benefits. The parties’ principal dispute is whether 26 the medical records show that because of an injury or sickness, as defined by the Policy, 27 Plaintiff could not perform the material duties of a sales manager starting from August 8, 28 -8- Case 2:21-cv-06644-PA-AFM Document 40 Filed 07/15/22 Page 9 of 10 Page ID #:1070 1 2019 through November 6, 2019. Plaintiff’s evidence is insufficient to support that he was 2 totally disabled for 90 consecutive days. 3 First, Atanuspour’s medical records fail to show that a mental disorder resulted in 4 total disability beyond October 4, 2019. Taking into account factors such as changes in 5 treatment plan, frequency of physician visits, and physician recommendations, Reliance’s 6 medical staff opined that by October 4, 2019 Plaintiff was “capable of returning to prior 7 work capacity.” (AR 113-116.) Plaintiff’s final visit with Dr. Davtian occurred on October 8 10, 2019, which fact supports Reliance’s assessment. Moreover, Plaintiff conceded that his 9 only contention for purposes of this litigation is that he was disabled due to a physical or 10 lumbar condition, not a mental one. (Plaintiff’s Responsive Trial Brief 2: 19-28.) 11 Second, Atanuspour’s medical records fail to show that his lumbar condition resulted 12 in total disability prior to October 23, 2019. Dr. Nemat concluded that Plaintiff was 13 temporarily totally disabled starting from October 23, 2019 through December 20, 2019. 14 Plaintiff, however, does not identify other contemporaneous medical records that state he 15 was totally disabled prior to October 23, 2019. Despite Plaintiff having been first treated by 16 Dr. Nemat starting on October 2, 2019, Dr. Nemat’s notes do not indicate that Plaintiff was 17 totally disabled earlier during the elimination period. Given the absence of medical 18 evidence for the period between October 4, 2019 and October 23, 2019, Plaintiff cannot 19 establish that he was totally disabled for each day of the elimination period. 20 The Court notes that Plaintiff’s own reports of pain and medical records from other 21 treating physicians are inadequate to bridge the gap because the majority of his 22 documentation postdate the elimination period and are generally not retrospective. In sum, 23 because Plaintiff failed to present sufficient evidence showing that he was continuously 24 totally disabled during the elimination period, he failed his burden to show entitlement to 25 LTD benefits. 26 Conclusion 27 For all of the foregoing reasons, the Court concludes that Plaintiff has not carried his 28 burden to establish by a preponderance of the evidence that as a result of injury or sickness -9- Case 2:21-cv-06644-PA-AFM Document 40 Filed 07/15/22 Page 10 of 10 Page ID #:1071 1 he could not perform the material duties of his regular occupation during the elimination 2 period between August 8, 2019 to November 6, 2019, consistent with the terms of the 3 Policy. The Court will enter Judgment in favor of defendant Reliance Standard Life 4 Insurance Company. 5 6 DATED: July 15, 2022 7 ___________________________________ 8 Percy Anderson

UNITED STATES DISTRICT JUDGE

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10-