1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DARREN COHEN, CASE NO. SA CV 19-01506-DOC-(DFMx) 11 12 Plaintiff, 13 FINDINGS OF FACT, CONCLUSIONS vs. OF LAW, AND TRIAL ORDER 14 15 AETNA LIFE INSURANCE COMPANY, 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 1 I. INTRODUCTION 2 The parties filed Trial Briefs and Responses in this matter on June 16, 2020 and 3 July 10, 2020, respectively. Due to the COVID-19 pandemic and the Central District of 4 California’s Continuity of Operations Plan, the Court vacated the bench trial scheduled for 5 July 21, 2020 and invited the parties to submit supplemental briefing in lieu of oral 6 argument. See generally Min. Order (Dkt. 37). The parties submitted Supplemental Trial 7 Briefs on July 19, 2020. For convenience, the Court will refer to these documents as “Pl. 8 Br.” (Dkt. 26), “Pl. Resp.” (Dkt. 35), “Pl. Reply” (Dkt. 38), “Def. Br.” (Dkt. 27), “Def. 9 Resp.” (Dkt. 36), and “Def. Reply” (Dkt. 39). References to the Administrative Record are 10 denoted by numbered documents with “AR” prefixes (Dkt. 25-1). 11 This is a review, under the Employee Retirement Income Security Act (“ERISA”), 12 of Defendant Aetna Life Insurance Company’s (“Defendant”) denial of Plaintiff Darren 13 Cohen’s (“Plaintiff”) claim for disability benefits. 14 The Court issues the following findings of fact and conclusions of law pursuant to 15 Federal Rule of Civil Procedure 52. To the extent that any findings of fact are included in 16 the conclusions of law section, they shall be deemed findings of fact, and to the extent that 17 any conclusions of law are included in the findings of fact section, they shall be deemed 18 conclusions of law. 19 II. FINDINGS OF FACT 20 A. Plaintiff’s Employment and Insurance Plan 21 1. Before his workplace injury, Plaintiff worked at STEC, Inc., a computer data storage 22 technology company as a Computer Systems Engineer, performing computer work 6- 23 8 hours per day. [AR 4748–4749, 4825]. 24 2. Defendant issued group policy number GP-888803 (the “Policy”) to fund long-term 25 disability (“LTD”) benefits. [AR 2]. 26 3. The Policy at issue provides benefits to age 67 and defines “Total Disability” as 27 follows: 1 You are deemed to be totally disabled while either of the following 2 applies to you: 3  During the period which ends right after the first 24 months 4 benefits are payable in a period of total disability: 5 You are not able, solely because of injury or disease, to 6 perform the material duties of your own occupation; except 7 that if you start work at a reasonable occupation you will no 8 longer be deemed totally disabled. 9  Thereafter during such period of total disability: 10 You are not able, solely because of injury or disease, to 11 work at any reasonable occupation. 12 You will not be deemed to be performing the material duties of 13 your own occupation or working at a reasonable occupation on 14 any day if: 15 o you are performing at least one, but not all, of the material 16 duties of your own occupation or you are working at any 17 occupation (full-time or part-time); and 18 o solely due to disease or injury, your income from either is 19 80% or less of your adjusted pre-disability earnings. 20 [AR 3]. 21 4. The Policy defines “reasonable occupation” as: “any gainful activity for which you 22 are; or may reasonably become, fitted by education; training; or experience.” [AR 23 16]. 24 B. Plaintiff’s Disability Claim 25 5. In 2008, Cohen crashed head-first into a wall while driving a Go-Kart during an 26 employer-sponsored event, suffering a traumatic brain injury, spinal cord 27 compression, and exacerbating his pre-accident neck and upper extremity conditions. 1 [AR 404, 3814]. 2 6. Plaintiff filed a worker’s compensation claim in September of 2008 for trauma to his 3 upper extremities and to the head. After 18 months out of work, he returned to work 4 part-time on March 24, 2010 working 20 hours per week. [AR 404]. 5 7. After the initial accident, Plaintiff submitted a claim to Aetna for long-term disability 6 benefits. [AR 5436]. In November 2010, Aetna approved benefits retroactive to 7 February 2009, finding that medical records support restrictions on work. [AR 5533]. 8 8. After two years of paying benefits under the “own occupation” definition of 9 disability, Aetna conducted a review in 2010 and 2011 to ascertain whether Plaintiff 10 was entitled to additional benefits under the “any occupation” definition by 11 conducting surveillance on Cohen and performing a paper review of his claims. [AR 12 3173–3185, 2917]. 13 9. On December 6, 2011, Aetna terminated Cohen’s benefits on the basis of a paper 14 review, claiming that his restrictions and limitations “were not supported by the 15 medical documentation,” and concluding he could work full time. [AR 2917–2919]. 16 10. Cohen appealed the termination decision. [AR 3238–3254, 3521–3537]. In March 17 2012, Aetna overturned the denial finding that “sufficient documentation exists 18 which supports a functional impairment which precluded you from performing 19 material duties of your own occupation on a fulltime basis as of December 5, 2011.” 20 [AR 5207]. 21 11. In October 2012, Aetna performed an internal vocational review that determined 22 Cohen did not have reasonable wage employability and was therefore unable to 23 perform any reasonable occupation at his current part time restrictions (there were 24 four positions open for full time positions). [AR 5924–5925]. 25 12. In April 22, 2013, Defendant had Cohen undergo an Independent Medical Evaluation 26 (“IME”), as required under the insurance policy, choosing Dr. Matthew Chan (“MC”) 27 to perform a physical examination and “Fitness for Duty Evaluation.” [AR 2565– 1 2571]. MC found that Cohen “has conditions and impairments that deteriorate with 2 prolonged sitting and repetitive hand use. As such, I agree with his current work 3 restrictions.” [AR 2571]. 4 13. Aetna conducted another review in October 2014 and continued to approve benefits. 5 [AR 6017]. 6 14. Aetna conducted another review in 2015 and ordered surveillance for a second time 7 occurring over several days in July and August of 2015. [AR 2318–2325]. 8 15. In September 2016, Aetna’s vocational consultant commented that it would be 9 challenging to find Cohen a position with permanent part time restrictions at his high 10 wage “at his station in life.” [AR 6136]. 11 16. In June 2016, Aetna conducted a Clinic Consultant Review and found that “it is not 12 anticipated any significant functional improvement will occur” for Mr. Cohen. [AR 13 6115]. 14 17. On July 3, 2016, Plaintiff was laid off by his employer. Cohen’s layoff resulted in the 15 elimination of the offset to his benefits from his part-time work earnings beginning in 16 July 2016. [AR 644]. 17 18. To date, he has not returned to work, but has returned to school in order to get into 18 the security business and is presently seeking part-time work. [AR 6142]. 19 19. In June 2017, Aetna ordered surveillance on Cohen for a third time. [AR 784]. 20 20. Defendant characterized the surveillance as showing Cohen to be “very active” and 21 performing activities that “he should avoid.” [AR 6185]. Following the surveillance, 22 Aetna again invoked the provision of the policy requiring Cohen to attend an IME. 23 21. The Court, having reviewed the videos, finds that they largely show Cohen 24 performing routine activities such as walking, driving, and sitting/eating. At one 25 point, one video clip showed Cohen performing a light jog while wearing a 26 backpack. The Court will consider the video evidence alongside all other evidence in 27 its final determination of whether Cohen has met his burden in this case. However, 1 the Court generally notes that there is a difference between performing routine 2 activities for short periods of time and working 8 hours a day, 5 days a week 3 performing repetitive tasks or sitting/standing for prolonged periods of time. 4 22. Aetna hired Dr. Elham Jafarimojarrad (“EJ”) to perform an examination in February 5 2018. [AR 728–744]. EJ concluded that due to the bilateral median naturopathy and 6 focal left ulnar neuropathy, Cohen needed to have an ergonomic workstation, and 7 requires an approximate 30 minute break after two hours of computer use.” [AR 8 742]. 9 23. Aetna then arranged a “paper review” from Dr. Jules David Hip-Flores (“JDH”). 10 JDH concluded that Cohen “can perform functional tasks/activities (40 hours 11 weekly/8 hour days) in the given review period without restrictions and limitations.” 12 [AR 812]. 13 24. Defendant terminated Cohen’s benefits on July 25, 2018 finding, based on the reports 14 from EJ and JDH and the surveillance video, there was no functional impairment that 15 prevented Cohen from performing with reasonably continuity in an occupation to 16 which he could reasonably be expected to perform satisfactorily. It identified a 17 sample listing of jobs that are appropriate based upon Cohen’s physical limitations, 18 education, and work history including department manager, title search manager, and 19 trade manager. [AR 643–649]. 20 25. On February 12, 2019, Cohen submitted an administrative appeal. [AR 373]. In 21 connection with his appeal, Plaintiff submitted updated medical records, as well as a 22 personal letter and letters from his wife, friend, and mother. [AR 520–524, 578–585]. 23 26. Plaintiff also submitted records of May 2018 MRIs conducted of Plaintiff’s cervical, 24 thoracic and lumbar spine under the supervision of Dr. Barkow. [AR 794, 797, 799]. 25 The cervical MRI found mild degenerative findings, including mild spinal stenosis 26 and moderate-severe left neural foraminal stenosis. [AR 795]. Disc height loss at C5- 27 C6 slightly advanced from the previous examination. [Id.]. The thoracic MRI was 1 “essentially unremarkable.” [AR 797]. The lumbar MRI found mild degenerative 2 findings in the lower lumbar spine without significant spinal stenosis or evidence of 3 focal lumbar nerve impingement. [AR 800]. 4 27. Plaintiff also submitted his own vocational analysis performed by Linda Hayes. [AR 5 404–424]. In February 2019, Hayes concluded Cohen is not qualified to perform in 6 the occupations Defendant previously asserted were available for Cohen to perform 7 full time [AR 5924] due to limited education and lack of experience and the demands 8 of each in terms of the amount of sitting (at least five to six hours per workday), 9 interacting with computers (84-85% of the workday) which are beyond his 10 capabilities. [AR 423]. Thus, Hayes found that it is “unrealistic to expect any 11 employer to accommodate his sitting restrictions . . . Mr. Cohen meets the definition 12 of disabled from any occupation.” [AR 422]. 13 28. On April 2, 2019, Defendant commissioned a “transferable skills analysis” which 14 first accepted the restrictions and limitations outlined by Dr. Neil Patel (described 15 below) and found three jobs within 50 miles of Dana Point, CA that would allow 16 Plaintiff to work with reasonable restrictions including no lifting more than 10 17 pounds frequently, typing up to 15 minutes at a time with the ability to take 5 minute 18 breaks throughout an 8 hour day, sitting 30 minutes at a time with the ability to 19 change positions up to 6 hours a day, among other restrictions. [AR 269–272]. This 20 analysis did not provide records of doctors other than Dr. Patel and did not consider 21 Hayes’s vocational analysis. 22 29. On April 10, 2019, Defendant rejected Cohen’s appeal, finding “the clinical 23 information on file did not support a functional impairment that prevented Mr. Cohen 24 for performing, with reasonable continuity, in any occupation in which he could 25 reasonably be expected to perform satisfactorily, as of at least July 25, 2018.” [AR 26 5380–5382]. 27 1 C. Timeline of Medical Findings 2 Dr. Herbert Jennings (“HJ”) 3 30. In October and December 2008, Cohen visited HJ who diagnosed Cohen with 4 cervical strain with radiculopathy of the right upper extremity and asked him to 5 “continue modified [work] duty including maximum four hours computer activity per 6 day.” [AR 728, 4936, 5075]. 7 Dr. Zan Lewis (“ZL”) 8 31. Cohen visited ZL several times between 2009 and 2013. ZL restricted Cohen to part 9 time work and limited data entry in June 2009 [AR 5104], May 2010 [AR 2880], 10 September 2010 [AR 2765], October 2010 [AR 2775], November 2010 [AR 2788], 11 December 2010 [AR 2794], January 2011 [AR 3646], March 2011 [AR 3653], April 12 2011 [AR 3666], June 2011 [AR 3672], August 2011 [AR 2882], October 2011 [AR 13 3564], November 2011 [AR 3506], and December 2013 [AR 2543]. 14 Dr. Charles Jablecki (“CJ”) 15 32. Plaintiff was evaluated by CJ—a neurologist and electrodiagnostic specialist at 16 UCSD—from September 2010 until 2014. [AR 650–655]. 17 33. CJ diagnosed Cohen with bilateral thoracic outlet syndrome, discoloration of the 18 extremities with a positive elevated arm stress test, and abnormal arterial flow 19 studies. Cohen was also diagnosed with cervical disc disease with midline disc 20 pathology at C5-6 and C6-7 noted on MRI, abnormal EMG studies indicating C5-6 21 root pathology, a chronic bilateral L5-S1 root pathology, and a mild L4-5 and L5-S1 22 facet arthropathy. [AR 653–654]. 23 34. Defendant points out that the record shows no opinion by CJ regarding Plaintiff’s 24 inability to work full-time at any time after 2016. Def. Resp. at 5 25 Dr. Matthew Chan (“MC”) 26 35. In April 2013, Aetna chose MC—a preventative and occupational medicine 27 physician—to perform a physical examination and “Fitness for Duty Evaluation” on 1 Cohen. [AR 2563, 2565–2571]. MC restricted Cohen to working 4 hours a day and 2 found the restriction to be “permanent.” [AR 2563]. He described Cohen’s “current” 3 diagnosis as thoracic outlet syndrome. [AR 2565]. MC concluded that Cohen’s then 4 modified work hours were “appropriate and medically necessary.” [AR 2569]. 5 Dr. Stephen Barkow (“SB”) 6 36. SB—a pain management physician—treated Cohen from 2014 until SB’s death in 7 2018. [AR 665]. 8 37. SB diagnosed Cohen with Raynaud’s syndrome, other intervertebral disc 9 degeneration (lumbar region), other cervical disc degeneration, brachial plexus 10 disorders, radiculopathy (thoracic and cervical regions), and cervicalgia. [AR 667]. 11 38. SB prescribed monthly trigger point injections through July 2018. [AR 668]. 12 39. In May of 2018, SB ordered a full spine MRI for Cohen. [AR 794]. It revealed 13 persistent mild spinal stenosis and moderate-severe left neural foraminal stenosis. 14 [AR 795]. The report indicated “[f]indings are similar in configuration compared 15 with 6/4/16 although disc height loss at C5-C6 has slightly advanced compared with 16 the previous examination.” [Id.]. 17 40. Defendant points out that the record shows no opinion by SB regarding Plaintiff’s 18 inability to work full-time at any time after 2016. Def. Resp. at 5. 19 41. SB did not write a letter in support of Plaintiff’s appeal of Aetna’s denial of benefits, 20 as he recently passed away. Pl. Br. at 11. 21 Dr. Neil Butani (“NB”) 22 42. In June 2013, NB diagnosed Cohen with multilevel degenerative disc disease with 23 disc protrusions being worst at C4-C5 and C5-C6. [AR 2042]. 24 43. In July 2014, NB diagnosed Cohen with radiculopathy and restricted him to four 25 hours of work a day and recommended the restrictions be permanent. [AR 2472]. 26 44. Defendant points out that the record shows no opinion by NB regarding Plaintiff’s 27 inability to work full-time at any time after 2016. Def. Resp. at 5. 1 Dr. Jonathan Schleimer (“JS”) 2 45. On October 24, 2016, Cohen saw JS—a neurologist— at the request of CJ. [AR 756]. 3 JS found reduced range of motion in the cervical spine in all directions and positive 4 Tinel’s and Phalen’s signs at the carpal tunnel. [AR 758]. 5 Dr. Lawrence Taw (“LT”) 6 46. LT first began treating Cohen in July 2014. [AR 2199]. In March 2016, LT restricted 7 Cohen to working four hours a day and recommended the restrictions be permanent. 8 [AR 2198]. LT indicated Plaintiff can do “alternate sitting, standing, occasional 9 typing, computer work, short distance driving, [and] light lifting” and expected 10 improvement in 6-12 months. [AR 2199]. 11 47. In June 2017, LT restricted Cohen to working four hours a day and recommended the 12 restrictions last 12 months. [AR 1814]. LT indicated Plaintiff can do “sitting, 13 standing, walking with short breaks, computer work, manual work, administrative 14 work, [and] communicate clearly” and expected improvement in 12 months. [AR 15 1820]. 16 48. In December 2018, when writing a letter to support Plaintiff’s appeal of Aetna’s 17 denial of benefits, LT deferred making any specific restrictions as to Cohen’s work to 18 “his primary care provider, physical therapist, or independent provider/specialist.” 19 [AR 425]. 20 Dr. Elham Jafarimojarrad (“EJ”) 21 49. In February 2018, Aetna chose EJ—a board certified in neurology—to perform an 22 IME on Cohen. [AR 728–744]. EJ reviewed Cohen’s medical record but omitted 23 MC’s 2013 report. [Id.]. 24 50. According to Cohen’s attorney, EJ only spent 31 minutes with Cohen and the 25 physical examination only took 8 minutes. [AR 752]. 26 51. EJ concluded that due to the bilateral median naturopathy and focal left ulnar 27 neuropathy, Cohen needed to have an ergonomic workstation, and requires an 1 approximately 30 minute break after 2 hours of computer use. [AR 742–743]. 2 Dr. Jules David Hip-Flores (“JDH”) 3 52. In June 2018, Aetna chose JDH—an Orthopedist—to perform a paper review of 4 Cohen’s case. [AR 807–814]. JDH opined that “restrictions and limitations were not 5 supported from 06/01/2018 forward as well as the consistency or discrepancies could 6 not be commented in the absence of medical records in the given review period.” 7 [AR 811]. JDH then found that “claimant can perform functional tasks/activities (40 8 hours weekly, 8 hour days) in the given review period without restriction or 9 limitations.” [AR 812]. 10 Dr. Regina Chinsio-Kwong (“RC”) 11 53. RC first treated Cohen in May 2016. [AR 578]. She saw him several times between 12 2017 and 2018. [AR 579]. In January 2019, she agreed with the restrictions and 13 limitations imposed by Dr. Chan in April 2013. [AR 580]. 14 Dr. Julie Sarton (“JS”) 15 54. JS has treated Cohen for at least 6.5 years. [AR 520]. In January 2019, she opined 16 that Cohen “cannot return to any type of occupation that requires him to sit more than 17 30 minutes” without accommodations. [AR 522]. 18 Dr. Neil Patel (“NP”) 19 55. Aetna retained NP to perform a second paper review of Cohen’s claims during his 20 appeal. [310–340]. NP found evidence of C5-6 mild stenosis and moderate to severe 21 left neural foraminal stenosis, among other conditions. [AR 338]. NP opined that 22 Cohen “can sustain full time work capacity” if he limits lifting to 10lbs frequently 23 and 25lbs occasionally, type for up to 15 minutes at a time with a five minute break 24 throughout an 8 hour day, and sit/stand/walk for up to 30 minutes at a time for a total 25 of 6 hours a day. [AR 338–339]. 26 Dr. William J. Holden (“WH”) 27 56. Aetna retained WH to perform a psychological paper review during Cohen’s appeal. 1 [292–309]. On March 15, 2019, WH found “[f]rom a psychological perspective, 2 fatigue, headaches, and chronic pain as well as anxiety and depression documented in 3 the records reviewed, all would be detrimental to judgment and decision making, 4 complex problem-solving and critical thinking, as well as focus and concentration, 5 when performing sustained activity on a full-time basis. The medical and physical 6 thereapy (sic) records make frequent references to these factors.” [AR 306]. 7 57. WH also found “[c]hronic pain, fatigue, headaches, anxiety and depression 8 sometimes or usually in combination, would restrict sustained full-time employment. 9 The claimant has been treatment resistant for many years, despite years of treatment 10 by various providers.” [AR 307]. 11 58. Upon receipt of these findings, Aetna claim representative Ashley Carey wrote: 12 “[S]ent report back for correction, peer should only answer questions within the 13 scope of specialty.” [AR 6330]. 14 59. Two days after that, on March 20, 2019, WH amended his findings. He found that 15 “[c]linical evidence on file solely from a psychological perspective does not support 16 functional impairment in terms of anxiety and depression of such severity that EE 17 was unable to perform sustained activity on a full-time basis.” [AR 288]. 18 60. Further, “[c]hronic pain, fatigue, headaches, anxiety and depression all are 19 interconnected and cannot be separated from each other in this case, except for 20 purposes of analysis. Anxiety and depression are not necessarily significant 21 limitations by themselves, but only in their relation to chronic pain, fatigue and 22 headaches, which clearly have a subjective and psychological component, as well as 23 objective physical components. Reasonable restrictions/limitations for these 24 subjectively experienced symptoms would be 15-30 minute breaks every 90 minutes 25 during the work day. Given the chronic and treatment resistant nature of these 26 conditions, duration of the restrictions/limitations is seen as permanent and 27 enduring.” [AR 289–290]. 1 61. In its final denial letter, Aetna only quoted from the second report that included the 2 more specific, lessened restrictions. [AR 5380]. 3 4 II. CONCLUSIONS OF LAW 5 A. Legal Standard 6 62. “In an action tried on the facts without a jury . . . the court must find the facts 7 specially and state its conclusions of law separately. The findings and conclusions . . . 8 may appear in an opinion or a memorandum of decision filed by the court.” Fed. R. 9 Civ. P. 52(a)(1). In a “bench trial on the record,” the reviewing court must “evaluate 10 the persuasiveness of conflicting testimony” and make findings of fact to determine 11 whether the plaintiff is disabled under the terms of the policy. See Kearney v. 12 Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999). This review may “consist[] 13 of no more than the trial judge rereading [the administrative record].” Id. 14 63. As the parties agree, the present review of Defendant’s denial of ERISA benefits is 15 de novo. Pl. Br. at 16; Def. Br. at 18; see also Salomaa v. Honda Long Term 16 Disability Plan, 642 F.3d 666, 673 (9th Cir. 2009). 17 64. It is a claimant’s burden to prove he is entitled to benefits by a preponderance of the 18 evidence. Oster v. Standard Ins. Co., 759 F. Supp. 2d 1172 (N.D. Cal. 2011) (“In an 19 ERISA action, the plaintiff carries the burden of showing, by a preponderance of the 20 evidence, that he was disabled under the terms of the Plan during the claim period.”). 21 Indeed, this “court simply proceeds to evaluate whether the plan administrator 22 correctly or incorrectly denied benefits . . . .” Abatie v. Alta Health & Life Ins. Co., 23 458 F.3d 955, 963 (9th Cir. 2006). 24 65. Defendant’s initial determination that Plaintiff qualified for benefits under the Policy 25 does not “operate[] forever as an estoppel so that an insurer can never change its 26 mind.” Munoz v. Amtex Construction Mgmnt. Inc., 623 F.3d 1290, 1297 (9th Cir. 27 2010). However, “the fact that the claimant was initially found disabled under the 1 terms of the plan may be considered evidence of the claimant’s disability.” Id. at 2 1296–97. 3 66. Under the plan, a claimant is considered “totally disabled” if he or she is unable to 4 work at any reasonable occupation, defined as “any gainful activity for which you 5 are; or may reasonably become, fitted by education; training; or experience.” [AR 3, 6 16]. 7 67. The Plan further provides that a claimant is not deemed to be working at a reasonable 8 occupation if working at any occupation, full-time or part-time, and “solely due to 9 disease or injury, your income . . . is 80% or less of your adjusted predisability 10 earnings.” [AR 3]. Thus, a claimant need not show they are completely incapacitated 11 to be deserving of benefits under the Policy. 12 B. De Novo Analysis of Plaintiff’s Claim 13 68. The Court concludes, after reviewing the record de novo, that Plaintiff adequately 14 proved by a preponderance of the evidence that as of July 25, 2018 (when his 15 benefits were terminated), he was “disabled” as defined by the Policy. 16 69. The Court finds that Plaintiff has met his burden of proof that he is unable to perform 17 any reasonable occupation because he cannot earn more than 80% of his pre- 18 disability earnings given the restrictions that both Cohen’s and Aetna’s physicians 19 have found medically necessary between 2008 and 2018. These restrictions include 20 a. Suffering from cervical disc disease, thoracic outlet syndrome, 21 Raynaud’s syndrome, degeneration of several discs, among other 22 conditions that several doctors have called “complicated.” See e.g., 23 supra ¶¶ 33 (CJ), 45 (JS), 35 (MC-selected by Aetna), 37 (SB), and 24 42–43 (NB). 25 b. Working for a maximum of four hours per day recommended by HJ 26 and LT. Supra ¶¶ 30, 46, 47. The Court notes that LT decided not to 27 make this recommendation in December 2018. Supra ¶ 48. However, 1 two other doctors—RC and JS—opined in January 2019 that Cohen 2 can only work with the four hour restriction recommended by Aetna’s 3 retained doctor (MC) as “appropriate and medically necessary” back 4 in April 2013. Supra ¶¶ 35, 53, 54. 5 c. Part time work and limited data entry recommended by ZL at least 14 6 times between 2009 and 2013. Supra ¶ 31. 7 d. Lastly, Aetna’s retained physician during Cohen’s appeal—NP— 8 opined that Cohen could only sustain full time work capacity if he 9 was restricted to typing 15 minutes at a time with a 5 minute break 10 throughout the workday. Supra ¶ 55. 11 70. On the other hand, in February 2018 EJ—after an 8 minute physical examination and 12 without viewing MC’s 2013 report—concluded the Cohen only needed an ergonomic 13 workstation and a 30 minute break after 2 hours of computer use to work full time. 14 Supra ¶¶ 49–51. Another of Aetna’s retained doctors—JDH—found that Cohen 15 could perform tasks for 40 hours a week and for 8 hour days. Supra ¶ 52. Finally, a 16 third Aetna hired physician—WH—found that Cohen’s symptoms require 15-30 17 minute breaks every 90 minutes during the work-day. Supra ¶ 60. This 18 recommendation was made after Aetna sent a prior report back for “correction.” 19 Supra ¶ 58. 20 71. The Court, reviewing all of the medical evidence on the record, finds that Plaintiff 21 has shown by a preponderance of the evidence that he suffers from conditions that 22 result in a loss of functionality that require restrictions that severely limit his ability 23 to work and more likely than not require a maximum of four hours of work a day. 24 These restrictions were approved by several of Cohen’s physicians and at least one of 25 Aetna’s physicians. In the Ninth Circuit, “an employee who cannot sit for more than 26 four hours in an eight-hour workday cannot perform ‘sedentary’ work that requires 27 ‘sitting most of the time.’” Armani v. Nw. Mut. Life Ins. Co., 840 F.3d 1159, 1163 1 (9th Cir. 2016). Thus, the Court finds that these restrictions mean that Cohen would 2 be unable to work at “any gainful activity for which [he is]; or may reasonably 3 become, fitted by education; training; or experience.” [AR 3, 16]. 4 72. The findings of EJ, JDH, and WH that opine to the contrary do not alter this Court’s 5 finding because Plaintiff has provided enough evidence to rebut those opinions 6 through doctor’s visits, reports, and recommendations from 2008 to as recent as 7 January 2019. This evidence is enough to meet Cohen’s burden. 8 73. Finally, one physician Aetna hired during the appeal—NP—found that Cohen needed 9 a 5 minute break after 15 minutes of typing and could only sit/stand/walk for up to 30 10 minutes at a time for up to six hours a day. Functionally, this means Cohen would 11 only be able to type 75% of the time and continuously change working positions 12 throughout a six hour work-day. [AR 338–339]. Even under those less restrictive 13 conditions, the Court finds Cohen would be unable to work at “any gainful activity 14 for which [he is]; or may reasonably become, fitted by education; training; or 15 experience.” [AR 3, 16]. 16 74. The video footage that Aetna provides also does not rebut the medical evidence in the 17 Administrative Record that compels this Court’s findings. As noted above, the 18 footage largely shows Cohen performing routine acts of life that do not contradict the 19 findings of the medical professionals outlined above. Indeed, even the recording of 20 Cohen’s light jog does not persuade the Court that his medically reasonable 21 restrictions are not supported by the record. To the extent that Aetna argues 22 otherwise, they overstate the importance of this evidence. 23 75. The vocational analyses performed by both Cohen and Aetna support the above 24 conclusions. Cohen’s analysis concluded that it is “unrealistic to expect any employer 25 to accommodate his sitting restrictions . . . Mr. Cohen meets the definition of 26 disabled from any occupation.” [AR 422]. Aetna’s 2019 analysis, though premised 27 solely on the restrictions and limitations outlined by NP, do not seem to meet even 1 those restrictions. Aetna found 3 available jobs within the relevant geographical area, 2 one of which was Cohen’s previous job that he was unable to perform without 3 restrictions. [AR 270–271]. The other two occupations—consultant and manager— 4 are labeled as “sedentary” and “are expected to allow a seated posture . . . with the 5 ability to sit/stand as needed.” [AR 270]. Nowhere in the analysis, however, does the 6 report confirm that Cohen would be able to take a 5 minute break from typing every 7 15 minutes and be allowed to change positions from sitting/standing/walking if he 8 hits his 30 minute limit as instructed by NP. 9 76. After reviewing the administrative record and the parties extensive briefing on this 10 matter, the Court concludes that Aetna improperly denied LTD benefits since July 11 2018. Further, Cohen has proven he is entitled to those benefits by a preponderance 12 of the evidence. 13 14 III. CONCLUSION 15 After considering the parties’ arguments, for the reasons explained above, 16 the Court HOLDS that Plaintiff shall be awarded past-due benefits and pre-judgment 17 interest through the relevant period under the Policy subject to any applicable offset for 18 Worker’s Compensation benefits. Plaintiff’s LTD benefits are hereby reinstated going 19 forward. Plaintiff is granted leave to file a motion for attorneys’ fees and costs which may 20 be awarded in the Court’s discretion pursuant to 29 U.S.C § 1132(g)(1). The Parties shall 21 submit a joint proposed judgment in accordance with this Court’s ruling on or before 22 August 3, 2020. 23 24 25 DATED: July 27, 2020 _________________________________

DAVID O. CARTER

UNITED STATES DISTRICT JUDGE