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1 Trendwest was a predecessor of Cendant Corp. P Mot. at 3. 

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

J. STEPHEN WILEY,

Plaintiff,

 v.

CENDANT CORPORATION SHORT

TERM DISABILITY PLAN, ET AL.,

Defendant. /

No. C 09-00423 CRB

ORDER GRANTING DEFENDANT’S

MOTION FOR JUDGMENT AND

DENYING PLAINTIFF’S MOTION

FOR JUDGMENT

This case involves an ERISA disability benefits dispute. In July 2009, the Court

granted partial summary judgment, holding that the standard of review was de novo. See

Docket No. 36. The parties have each now filed cross-motions for judgment under Federal

Rule of Civil Procedure 52 as to whether Plaintiff was unable to perform the material duties

of his occupation from August 2004 to August 2006. Because Plaintiff has failed to establish

by a preponderance of the evidence that he was totally disabled, the Court GRANTS

Defendant’s motion and DENIES Plaintiff’s motion. 

BACKGROUND

A. Plaintiff’s Career at Trendwest/Cendant1

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2

 All cited exhibits are attached to the Keenley Declaration.

3

 O*NET refers to the O*NET Resource Center, http://www.onetcenter.org/overview.html, the

“nation’s primary source of occupational information.”

2

Plaintiff J. Stephen Wiley began working for Trendwest/Cendant Corp. in 1991 as a

salesman. Ex. 22

 at AET/WIL 736. His job was to sell timeshares to customers. Id. He was

promoted to Assistant Manager, and subsequently to Sales Manager and Project Director,

jobs in which he managed an office of other staff selling timeshares. Id. Plaintiff’s job

required him to recruit new salespeople, motivate and train his sales team, establish and

monitor goals for the sales team, monitor sales, and discipline underperforming sales staff. 

Ex. 13 at AET/WIL 002-3. He described his job as “inherently very stressful,” as he was

“under tremendous pressure to make a high volume of sales.” Ex. 2 at AET/WIL 736. 

According to O*NET,3

 sales manager positions involve: selling and influencing others

through sales presentations and advertising; establishing and maintaining interpersonal

relationships; communicating with supervisors, peer and subordinates; and guiding,

directing, and motivating subordinates. See

http://online.onetcenter.org/link/details/11-2022.00. Plaintiff reported that part of his job was

to “make the customers happy and make them feel like they were a part of the family.” Ex.

11 at AET/WIL 804.

Plaintiff was diagnosed with diabetes in approximately 1988, but his disease was in

control for many years. Ex. 2 at AET/WIL 736. His diabetes became far worse in November

2003, when he began to have crashes due to low blood sugar. Id. At the time, Plaintiff was 

involved with an FBI and California Department of Real Estate investigation into

Trendwest/Cendant, which caused Plaintiff a great deal of stress. Id. at AET/WIL 737. 

B. Benefit History

Plaintiff stopped working on February 13, 2004. D Mot. at 2. Six months later,

Cendant allegedly terminated his employment. Id. In January 2008, Plaintiff made a claim

to Aetna for long term disability benefits based on stress and uncontrolled diabetes. Id.

Aetna denied Plaintiff’s claim in April 2008 for failure to provide the requested

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 Plaintiff asks the Court to consider two documents not in the administrative record: Ex. 3, a

handbook for Trendwest employees that includes information about Plaintiff’s job, and Ex. 10, an

Attending Physician’s Statement completed by Dr. Canio. Defendant objects to both, noting that per

Mongeluzo v. Baxter Travenol Long Distance Disability Benefit Plan., 46 F.3d 938, 944 (9th Cir. 1995),

“[i]n most cases . . . the district court should only look at the evidence that was before the plan

administrator,” and that a district court is to exercise its discretion to review evidence outside of the

administrative record “only when circumstances clearly establish that additional evidence is necessary

to conduct an adequate de novo review” (internal citations omitted). Defendant, too, asks the Court to

take judicial notice of an employment discrimination complaint filed by Plaintiff against

Trendwest/Cendant in 2007, as well as the Special Jury Verdict in that same case. None of the four

documents at issue are necessary for the Court to conduct an adequate de novo review, nor would any

change the outcome in this matter. Accordingly, the Court will not consider them. 

3

documentation. Id. at 6 (citing AET/WIL 684-86). Plaintiff sent additional materials to

Aetna, which in May 2008 determined that the information received did not warrant a

reversal of its claim decision. Id. at 9 (citing AET/WIL 675). Plaintiff appealed Aetna’s

decision in September 2008, but submitted no new medical records. Id. (citing AET/WIL

676-71, 811). Aetna then referred Plaintiff’s file for clinical review by two doctors. After

both found that Plaintiff’s documentation failed to support functional impairment, Aetna

upheld its denial of it long term disability benefits. AET/WIL 814-15. Aetna informed

Plaintiff that it had “determined that there was insufficient medical evidence to support Mr.

Wiley’s disability, as of February 13, 2004. Therefore, the original decision to deny LTD

benefits, effective February 13, 2004, has been upheld.” AET/WIL 791-93.

The Administrative Record that was before Aetna consisted of the following.4

C. Plaintiff’s Medical Records

1. Plaintiff’s Treating Physician: Dr. Ritzo

Dr. Dale Ritzo, an internist, began treating Plaintiff in February 2004 due to work

related stress. Ex. 5 at AET/WIL 740. Plaintiff complained about difficulty sleeping and

concentrating, noting that he “[f]elt stressed, anxious and depressed” and that his “diabetes

became more difficult to control with these issues.” Id. Dr. Ritzo recommended that

Plaintiff go on disability, and prescribed a sleep aid and antidepressant. Id. He did not

record the degree of Plaintiff’s blood sugar fluctuations, but noted that Plaintiff’s sugars were

“becoming more difficult to control.” Id. 

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Over the next several months, Plaintiff continued to see Dr. Ritzo, and reported

“ongoing stress including legal issued related to his work problems,” as well as “wide

fluctuations in his blood sugar.” Id. Plaintiff “began to experience hypoglycemia

intermittently,” leading Dr. Ritzo to conclude in January 2005 that Plaintiff’s diabetes would

be difficult to control given Plaintiff’s ongoing stress. Id. As Dr. Ritzo attempted to further

control Plaintiff’s diabetes, Plaintiff experienced increased “hypoglycemic reactions

manifested by altered mental status.” Id. By June of 2005, Plaintiff reported “still being

stressed but [that he] hoped to be able to return to work.” Ex. 5 at AET/WIL 741. In

December 2005, Dr. Ritzo was still having difficulty controlling Plaintiff’s diabetes; he

recommended an endocrinology consultation, which Plaintiff initially deferred. Id. 

Plaintiff’s insurance changed to Kaiser as of March 2006, and so Dr. Ritzo

recommended that Plaintiff establish care with Kaiser, and again suggested that he see an

endocrinologist. Id. Plaintiff returned to see Dr. Ritzo in December 2006, reporting

“continued stress” and “continued anxiety.” Id. Dr. Ritzo recommended that Plaintiff follow

up with the endocrinologist at Kaiser, and seek a mental health consultation there as well. Id.

Plaintiff next saw Dr. Ritzo in June 2007, reporting “occasional symptomatic hypoglycemia.” 

Id. Plaintiff began faxing his glucose count to Dr. Ritzo every few weeks, and they adjusted

his insulin accordingly. Id. Plaintiff visited Dr. Ritzo again September 2007, and again in

January 2008, when Plaintiff reported that “with the increased stress related to the legal

matters pertaining to his disability and work that his glucoses would increase.” Id. Plaintiff

last saw Dr. Ritzo in June 2008, when he reported having one to two hypoglycemic episodes

per week. Ex. 5 at AET/WIL 742. Dr. Ritzo “remained concerned that the additional

stresses of work would further exacerbate his diabetic control, further exposing him to the

risks of diabetes.” Id.

In July 2008, Dr. Ritzo summarized his opinion on Plaintiff’s health in the following

manner. He noted that Plaintiff’s “hypoglycemia has resulted in disorientation in the past.” 

Id. He explained that stress exacerbates diabetes, because it creates hormones that oppose

the effects of insulin. Id. Accordingly, he stated that “at this time and for the immediate

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future, I feel it would be in [Plaintiff’s] best interest to not have the additional stresses that

employment would cause.” Id. He opined that Plaintiff was at risk of “cardiovascular, renal,

neurological, and ophthalmologic complications” and that work related stress would

exacerbate those risks. Id. He concluded that while “a different reviewer might come to

different conclusions than I have,” he believed that Plaintiff “should be considered disabled

from work due to his medical condition.” Id.

Dr. Ritzo was subsequently contacted by Wendy Weinstein, a reviewing physician for

Aetna (discussed at greater length below). Ex. 14 at AET/WIL 787. In their November 2008

conversation, Dr. Ritzo told Weinstein that Plaintiff “does not have neuropathy or

retinopathy and there has been no documentation of microalbumin.” Id. In addition, Dr.

Ritzo communicated that “there does not appear to be documentation of end organ damage at

ths time,” nor “a history of visits to the emergency room or the need of hospitalizations.” Id.

He further noted that “there may have been some calls to the paramedics where [Plaintiff]

complained of hypoglycemic episodes, but he thought [Plaintiff] was treated at the site where

the paramedics evaluated him and he never required transfer to the hospital.” Id. He told Dr.

Weinstein that Plaintiff’s diabetes was “difficult to control,” that “stress and situational

anxiety has played a component in [Plaintiff’s] difficulty controlling his diabetes,” and that

he was concerned that Plaintiff’s return to a stressful environment would impact the control

of his diabetes. Id.

2. Plaintiff’s Treating Psychologist: Dr. Reno

Dr. Dennis Reno, Ph.D. was Plaintiff’s treating psychologist beginning in November

2003. Ex. 9 at AET/WIL at 646. Dr. Reno sent three nearly identical letters– one in March

2005, and two in July 2005– regarding Plaintiff’s qualification for disability benefits. See

Ex. 9 at AET/WIL 646-51. In those letters, Dr. Reno explained that Plaintiff began treatment

due to anxiety and insomnia, apparently in connection with the investigation of his employer. 

Ex. 9 at AET/WIL 646. He stated that Plaintiff’s physician prescribed him anti-depressant

and sleep medication in February 2004, and was put on temporary disability for his volatile

blood sugar readings. Id. Dr. Reno described Plaintiff’s state in March 2004 as “depressed

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with suicidal ideation,” and noted, too, that when Plaintiff was terminated in September 2004

he thought about killing himself. Id. Dr. Reno reported, however, that at the time of his

letters, though Plaintiff was experiencing restless sleep and stress tied to his legal action

against Cendant, Plaintiff’s judgment was intact. Ex. 9 at AET/WIL 647. He noted that

Plaintiff could “clearly demarcate his increase in blood sugar due to stress.” Id. In his two

July 2005 letters, he added that Plaintiff’s “[u]nstable diabetic condition causes [a]

breakdown in [Plaintiff’s] physical and mental functioning and adds to his being depressed.” 

Ex. 9 at AET/WIL 649. Dr. Reno concluded in all three letters: “Mr. Wiley will likely

recover from the stress of his legal battles. He is capable of working and is not permanently

disabled due to a psychological condition.” Ex. 9 at AET/WIL 647, 649, 651.

3. Plaintiff’s Treating Endocrinologist: Dr. Canio

Dr. Timoteo Canio, an endocrinologist at Kaiser, began treating Plaintiff in February

2006. Ex. 6 at AET/WIL 746. That same month, he found that Plaintiff’s diabetes was in

“poor control” and discussed “carb counting” and glucose testing with Plaintiff. Ex. 6 at

AET/WIL 747. In June 2006, Dr. Canio found that Plaintiff’s diabetes was “stable”– he

noted that Plaintiff was taking medication and “report[ed] improvement” of his daily blood

sugar; he recommended that Plaintiff continue with carb counting and attending a diabetes

class. Ex. 6 at AET/WIL 748. In September 2006, Dr. Canio noted that Plaintiff was “under

tremendous stress from an ongoing litigation,” and had reported to him that his diabetes was

“difficult to control” and that he felt “his stress and anxiety contribute to the inability to

control” it. Ex. 6 at AET/WIL 749. In December 2006, Dr. Canio stated that Plaintiff

“reports occasional highs and lows depending on stress,” and that “he is under tremendous

stress at this time because of litigation.” Ex. 6 at AET/WIL 750. He added that he and

Plaintiff had had a lengthy discussion of diabetes, during which Dr. Canio “explained that he

has no complications that should limit him from work.” Id. Dr. Canio did not fill out

Plaintiff’s disability forms as Plaintiff requested. Id.

Plaintiff’s treatment with Dr. Canio continued into 2007. In February of that month,

Dr. Canio reported that Plaintiff’s thoughts were fleeting and that he referred to ongoing

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5

 Plaintiff asks the Court to take judicial notice of an Attending Physician’s Statement completed

by Dr. Canio in March 2007 for MetLife insurance. See Ex. 10. On that form, Dr. Canio checked “no”

next to the question, “Has patient been released to work in his/her occupation?” Id. Dr. Canio noted

“1 episode of hypoglycemia” since the last report– though it is unclear when that was – and wrote in the

“Additional Remarks” section: “The patient has no complications of diabetes except for episodes of

hypo-[glycemia]. Patient’s diabetes is adversely affected by anxiety and depression.” Id. For the

reasons already articulated, the Court will not take judicial notice of this document. In addition, the

meaning of this form is not sufficiently clear to be helpful. It is unclear whether Dr. Canio’s checking

“no” refers to a decision that he made not to clear Plaintiff to work, or his recognition of another doctor

(perhaps Dr. Ritzo)’s decision. Given his December 2006 and June 2007 treatment notes, it is difficult

to interpret this Attending Physician’s Statement to be an opinion by Dr. Canio that Plaintiff was totally

disabled and not fit to work in his occupation.

7

stress from the investigation of his employer. Ex. 6 at AED/WIL 752. He added: “When

asked specifically about his disease, he tells me that he has difficulty controlling his blood

sugar levels because of the stress. He reports several episodes of low blood sugars and

feeling lost at times.” Id. Dr. Canio noted that in his opinion, Plaintiff’s lack of control over

his diabetes was “directly related to his stress and anxiety.” Id, Dr. Canio saw Plaintiff again

in June 2007, noting that Plaintiff was “[r]eluctant to make changes,” and acknowledged

being “inconsistent with measuring his food.” Ex. 6 at AET/WIL 754. A week later,

Plaintiff returned to Dr. Canio’s office with his wife and son to discuss “his ongoing

difficulty with low blood sugars and his inability to work as a result.” Ex. 6 at AET/WIL

755. Dr. Canio told Plaintiff that he had received a form from his disability insurer inquiring

as to Plaintiff’s “limitations and restrictions,” and that “I felt that he did not have either of

these with regards to his diabetes.” Id. Plaintiff and his family protested that Plaintiff had

“spells” where he is disoriented, does not know who he is, and requires monitoring, that such

spells occur nine times a week and are attributable to low blood sugar. Id. Dr. Canio

responded that “this may be related to stress rather than his diabetes.” Id. He told Plaintiff

that he reviewed Plaintiff’s blood sugar log and that while he saw several lows, most of the

out-of-control numbers were in the high 100's, mid-200's and even over 300. Id. He

explained: “what is asked of me is my opinion regarding his ability to work. . . . given the

objective data we collect, I see no limitations nor restrictions for him to work,” reiterating: “I

have no objective data to suggest that he cannot work.” Ex. 6 at AET/WIL 756.5

4. Social Security Decision

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In 2007, an administrative law judge with the Social Security Administration (“SSA”)

found that Plaintiff was “disabled beginning February 12, 2004 because of insulin-dependent

diabetes mellitus, depression, and anxiety so severe [he was] unable to perform any work

existing in significant numbers in the national economy.” Ex. 4 at AET/WIL 768. The SSA

held that Plaintiff was “markedly impaired in [his] activities of daily living,” had “marked

difficulty maintaining social functioning,” and had “marked difficulties maintaining

concentration, persistence, or pace.” Id. It further held that he had “poorly controlled

insulin-dependent diabetes mellitus, which causes disorientation, fatigue, and an inability to

concentrate,” as well as “severe depression, anxiety and panic attacks.” Id.

5. Other Insurer’s Physician

Included among Dr. Ritzo’s medical records was a September 2007 letter to Dr. Ritzo

from Dr. Judy Cohen, a doctor with UNUM, Plaintiff’s insurer under a different plan. 

AET/WIL 148-50. Dr. Cohen described her review of Plaintiff’s medical documentation,

and concluded that “the records provide no medical indication that the insured would not

have been able to continue to work within his diabetes as he had worked with it in the past.” 

AET/WIL 149. She explained that often it is not diabetes, but end organ damage caused by

diabetes that is limiting, and that Plaintiff had no end organ damage. Id. She concluded that

she agreed with Dr. Canio, who said in June 2007 that he saw “no limitations with regard to

doing his customary work.” AET/WIL 150.

Dr. Ritzo responded to Dr. Cohen’s letter, writing, “I agree with your summary; my

concern is that the stresses of work will further exacerbate very difficult to control diabetes

and put him at greater risk of . . . end organ failure.” Id. He added: “This is just my opinion–

I cannot predict future events and have no objective way of measuring this.” Id.

6. Aetna’s Reviewing Physicians

a. Dr. Mendelssohn

Dr. Elena Mendelssohn is a psychologist who was hired by Aetna to review Plaintiff’s

claims. The materials she reviewed included Plaintiff’s letter of appeal, job description, the

favorable SSA decision, declarations from Plaintiff and his wife, and documentation from

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Drs. Reno, Canio, and Ritzo. Ex. 12 at AET/WIL 776-77. Dr. Mendelssohn sought to

determine “whether medical support[ed] a functional impairment from [Plaintiff’s] own

occupation from 1/13/04-8/12/06. . . .” Ex. 12 at AET/WIL 777. She noted that she would

“defer to the appropriate medical specialists to determine the impact of” Plaintiff’s diabetes

on his functionality; her assessment was limited to Plaintiff’s psychological issues. Id.

Dr. Mendelssohn noted that while Dr. Ritzo had “consistently opined that [Plaintiff]

was unable to return to work,” he did not indicate how Plaintiff’s psychological problems

impacted his functionality. Id. She commented that while Dr. Ritzo had found that Plaintiff

was unable to engage in work, his letters did “not include examination findings, behavioral

observations, or specific signs and symptoms of an emotional disturbance.” Id. Dr.

Mendelssohn observed that Dr. Canio had found Plaintiff’s anxiety and depression to be a

contributing factor to his diabetes and “the main challenge” for Plaintiff. Ex. 12 at AET/WIL

778. Dr. Mendelssohn stated that while Plaintiff was apparently not seen by a psychiatrist,

he saw Dr. Reno, a psychologist, as of January 2004. Id. She recounted Plaintiff’s various

meetings with Dr. Reno, and that while he had been diagnosed with major depression, his

reported affect in July 2004 was normal, and his status in December 2004 was stable;

“[a]lthough there was report of lability, Dr. Reno did not include a specific description of

emotional dyscontrol or inappropriate emotionality.” Id. 

Dr. Mendelssohn concluded that though there were sporadic reports of “agitation,

distractability, suicidal ideation, and lability,” the documents submitted did not describe

emotional dyscontrol or inappropriate tearfulness/emotionality,” nor documentation of a plan

of self-harm, nor a recommendation for more intensive care due to the threat of self-harm. 

Ex. 12 at AET/WIL 780. She found, too, that while there were reports of anxiety, “the

documents did not indicate a description of specific anxious behaviors to ascertain the impact

of [Plaintiff’s] reported anxiety on his functioning.” Id. And though there were reports of

distractability, “the submitted documentation did not include measurements of [Plaintiff’s]

cognitive functioning to substantiate the presence of cognitive impairment.” Id. Moreover,

Dr. Mendelssohn added, Plaintiff’s own treating psychologist had found him capable of

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working. Id. This, while “the documentation indicates that the claimant was experiencing

some degree of emotional distress which likely required psychotherapy and

psychopharmacology,” Dr. Mendelssohn opined that Plaintiff was not functionally impaired

as of February 2004. Id.

b. Dr. Weinstein

Dr. Wendy Weinstein is a medical doctor, board-certified in internal medicine, who

was also hired by Aetna to review Plaintiff’s claims. The materials she reviewed included

Plaintiff’s letter of appeal, job description, the favorable SSA decision, declarations from

Plaintiff and his wife, and documentation from Drs. Reno, Canio, and Ritzo. Ex. 14 at

AET/WIL 783-84. She noted that Plaintiff initially left work due to anxiety and depression,

and that he also had a “history of diabetes with some fluctuating blood sugars” and stress that 

reportedly exacerbated his diabetes. Ex. 14 at AET/WIL 784.

Dr. Weinstein then went through the medical records. She noted that Dr. Ritzo saw

Plaintiff for “routine follow-up of his diabetes,” and that while Dr. Ritzo referenced

uncontrolled diabetes and ongoing anxiety, “there is no documentation of physical

examination abnormalities,” nor of “complications from the claimant’s diabetes or specific

functional impairments.” Ex. 14 at AET/WIL 785. She reiterated that records in 2006 and

2007 continued to discuss Plaintiff’s anxiety, depression, and diabetes, but did “not

document abnormal physical examination findings or specific complications from

[Plaintiff’s] diabetes in the presented medical records.” Id.

Dr. Weinstein noted that Plaintiff had submitted self-reported blood sugar data from

2004 to 2008, and recognized that there was “some fluctuation in the blood sugars and

reference to periodic low blood sugar,” although “no documentation of the need for urgent

care with the low blood sugars or hospitalization.” Ex. 14 at AET/WIL 786. Dr. Weinstein

also quoted Dr. Canio’s finding that no objective data suggested that Plaintiff could not

work. Id. And she described her November 2008 conversation with Dr. Ritzo, discussed

above. Ex. 14 at AET/WIL 787.

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Based on her review, Dr. Weinstein concluded that while Plaintiff “referenced

episodes of low blood sugars by self-report” with “episodes of confusion,” “there is no

documentation of true hypoglycemic episodes with associated examination abnormalities.” 

Id. She echoed Dr. Canio’s finding that Plaintiff had “no limitations nor restrictions” from

work, and distinguished Dr. Ritzo’s findings as not documented by “actual physical

examination abnormalities or specific complications from the claimant’s fluctuating blood

sugars that would cause work restrictions and limitations.” Ex. 14 at AET/WIL 788. She

added that although Plaintiff had “one or two episodes of reported hypoglycemia . . .

evaluated by the paramedics, there has been no documentation of permanently abnormal

physical examination findings or documented hypoglycemic episodes associated with the

need for emergency room evaluation and hospitalization.” Id. Dr. Weinstein found that the

few substantiated hypoglycemic episodes did not “substantiate persistent functional

impairment from sedentary work.” Id.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 52(a)(1) provides that “[i]n an action tried on the

facts without a jury . . ., the court must find the facts specially and state its conclusions of law

separately. The findings and conclusions may be stated on the record . . . or may appear in

an opinion or a memorandum of decision filed by the court. Judgment must be entered under

Rule 58.” In a Rule 52 motion, as opposed to a Rule 56 motion for summary judgment, the

court does not determine whether there is an issue of material fact, but whether the plaintiff is

disabled under the policy. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir.

1999) (en banc). The Court is to “evaluate the persuasiveness of conflicting testimony,” and

make findings of fact. Id. This is considered a “bench trial on the record,” which may

“consist[] of no more than the trial judge rereading [the administrative record].” Id.

Plaintiff carries the burden of showing that he was disabled under the terms of the

Plan during the claim period. See Sabatino v. Liberty Life Assurance Co. of Boston, 286 F.

Supp. 2d 1222, 1232 (N.D. Cal. 2003). The standard Plaintiff must meet is preponderance of

the evidence. See Finley v. Hartford Life & Acc. Ins. Co., No. 06-6247, 2007 WL 4374417,

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 Following the first 24 months, total disability is defined as the participant’s inability “solely

because of injury or disease, to work at any reasonable occupation.” Id. Only the first 24 months of

eligibility are presently at issue; Plaintiff asks that the Court remand the question of his eligibility for

benefits after August 2006 to the Plan. P Mot. at 9 n. 8.

7

 Plaintiff’s declaration asserts that he started to have crashes in November 2003, and that he had

crashes several times a week by early 2004. Ex. 2 at AET/WIL 736-37. He also describes a crash “not

long before [he] went out on disability” in February 2004, in which he drove 20-30 blocks and “had no

idea what [he] was doing.” Ex. 2 at AET/WIL 737. The earliest report of hypoglycemia from Dr. Ritzo

is post-December 2004, and describes such episodes as intermittent. See Ex. 5 at AET/WIL 740 (“he

also began to experience hypoglycemia intermittently”).

12

at *7 (N.D. Cal, Dec. 14, 2007). During the first 24 months of benefits eligibility under the

Aetna plan at issue, “Total Disability” is defined as the participant’s inability “solely because

of injury or disease, to perform the material duties of [his] own occupation.” Ex. 1 at

AET/WIL 690.6

 Plaintiff became eligible for benefits under the Aetna plan in August 2004. 

P Mot. at 2, n.4.

The Court has already ruled that de novo review applies to Plaintiff’s claim for

benefits under the Plan. Docket No. 36. Under a de novo standard of review, no deference is

owed to the plan administrator; courts are instead to “decide for themselves what a term of

the [Plan] means instead of deciding whether the plan administrator was reasonable in how it

construed the term.” See Kearney, 175 F.3d at 1088.

DISCUSSION

The most difficult obstacle Plaintiff faces in meeting the preponderance of the

evidence test is that, even setting aside the opinions of the two Aetna-hired doctors, two of

Plaintiff’s own treating physicians found that Plaintiff was capable of working. Only Dr.

Ritzo concluded that Plaintiff could not work due to his illness. 

But Dr. Ritzo apparently recommended that Plaintiff go on disability almost

immediately once he began seeing Plaintiff in February 2004; the decision was based on

Plaintiff’s feelings of stress, anxiety, and depression, and his diabetes having become “more

difficult to control.” See Ex. 5 at AET/WIL 740. This step, apparently taken in advance of

any reported hypoglycemic episodes,7

 was arguably overcautious. Plaintiff’s health does

seem to have deteriorated after that point, as Plaintiff reported “hypoglycemic reactions

manifested by altered mental status” in 2005. Id. However, it does not appear that Dr. Ritzo

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had much documentation of the hypoglycemic episodes during the claim period other than

Plaintiff’s self-reports. This is not to say that Plaintiff did not have hypoglycemic episodes,

only that their severity, frequency, and impact on him and his work were not objectively

measured.

Moreover, while Dr. Ritzo by no means retreated from his opinion that Plaintiff was

disabled and incapable of working, neither did he express that view with absolute certainty. 

He acknowledged that a different reviewer might come to different conclusions than he did. 

Ex. 5 at AET/WIL 742. He also wrote to Dr. Cohen that he agreed with her summary of

Plaintiff’s medical history in which she concluded that Plaintiff had “no limitations with

regard to doing his customary work,” but was concerned that work-related stress would put

Plaintiff at greater risk; he further acknowledged that he had “no objective way of measuring

this.” AET/WIL 150. 

While Dr. Ritzo is certainly credible, he appears to have recommended disability early

on, based largely on Plaintiff’s self-reports, and in the absence of very much objective data.

Plaintiff’s other two treating physicians do not help his case. This is particularly

problematic as they are the two specialists he saw, and would presumably have the greatest

understanding of his diabetes and mental health issues, respectively. While Dr. Canio found

that Plaintiff’s diabetes was in poor control, he also noted that Plaintiff’s diabetes was

“stable” and had improved at times during the claim period. Ex. 6 at AET/WIL 748. In

December 2006, just after the claim period, Dr. Canio expressed to Plaintiff his view that

Plaintiff had “no complications that should limit him from work.” Ex. 6 at AET/WIL 750. 

Plaintiff apparently did not raise the issue of low blood sugar episodes with Dr. Canio until

2007. Ex. 6 at AET/WIL 752; see also Ex. 6 at AET/WIL 750 (in December 2006 Plaintiff

simply reported “occasional highs and lows”). Similarly, while Dr. Reno described

Plaintiff’s anxiety, stress, and depression with suicidal ideation during the claim period, as

well as the interplay between his diabetes and mental health issues, he did not find Plaintiff

disabled. He explicitly found that “Plaintiff is capable of working.” Ex. 9 at AET/WIL 647,

649, 651. 

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8

 The one incident involving the paramedics that is mentioned in Plaintiff’s declaration took

place outside of the claim period. See Ex. 2 at AET/WIL 737. His wife’s declaration mentions having

to call the paramedics “at least once” in late 2003. Ex. 8 at AET/WIL 762.

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If Plaintiff’s diabetes was so serious that he could not work, one might have expected

to see more information as to the frequency of his hypoglycemic crashes, objective evidence

of the complications he suffered from diabetes, as well as incidents of hospitalization or other

urgent care.8

 If his mental health was so serious that he could not work, one might have

expected to see references to more significant psychological (or even psychiatric) treatment,

hospitalization, or some efforts to measure his impaired cognitive functioning. One would

also have expected the two specialists Plaintiff saw to have concluded that Plaintiff could not

work.

Plaintiff clearly suffered from difficult to control diabetes, anxiety and depression

during the claim period– something even Aetna does not dispute. See D Opp. at 2. 

However, the record does not support a finding that these illnesses, independently or

together, see Lawrence v. Motorola, Inc., No. 04-1553, 2006 WL 2460921, at *8 (D. Ariz.

Aug. 24, 2006) (plan administrator to consider combination of impairments), were so severe

as to render him unable to perform the material duties of his job. Compare Jordan v.

Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 880 (9th Cir. 2004)

(overruled on other grounds) (“[t]hat a person has a true medical diagnosis does not by itself

establish disability. Medical treatises list medical conditions from amblyopia to zoolognia

that do not necessarily prevent people from working.”). No doubt Plaintiff’s job was

stressful, even in the absence of an investigation into his employer’s practices, and that stress

made his diabetes worse. No doubt Plaintiff’s job required him to communicate persuasively

with both customers and sales staff, and that coping with his diabetes and mental health

issues detracted from his ability to do so effectively. But it is not clear that Plaintiff’s

sporadic episodes of low blood sugar or his anxiety and depression prevented him from

doing his job on a daily basis. 

Plaintiff’s arguments to the contrary are ultimately unpersuasive.

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9

 Nor is it rewriting the Plan that Dr. Reno characterized Plaintiff as not “permanently disabled”–

Dr. Reno’s relevant conclusion was that Plaintiff “is capable of working.” SeeEx. 9 at AET/WIL 647,

649, 651.

10 Plaintiff’s complaint that Dr. Mendelssohn “expressly declined to consider any of the medical

evidence pertaining to [Plaintiff’s] poorly-controlled diabetes,” P Mot. at 16, is unavailing; Dr.

Mendelssohn is a psychologist and properly left the analysis of Plaintiff’s diabetes to others. 

15

Plaintiff argues that Dr. Mendelssohn improperly required Plaintiff to exhibit

“emotional dyscontrol or inappropriate tearfulness,” which was not a requirement of the

Plan. P Mot. at 16. An ERISA Plan Administrator cannot rewrite the Plan. See Saffle v.

Sierra Pacific Power Co. Bargaining Unit, 85 F.3d 455, 459-60 (9th Cir. 1996). But Dr.

Mendelssohn was not rewriting the Plan.9

 Her full statement was that there were reports of

“agitation, distractability, suicidal ideation, and lability; yet the documents submitted did not

include description of emotional dyscontrol or inappropriate tearfulness/emotionality.” Ex.

12 at AET/WIL 780; see also Ex. 12 at AET/WIL 778 (“Although there was report of

lability, Dr. Reno did not include a specific description of emotional dyscontrol or

inappropriate emotionality”). It is reasonable that Dr. Mendelssohn would seek not only

reports of generalized emotional states but examples of how those states manifested

themselves on a daily basis; otherwise, it is impossible to assess how they impacted

Plaintiff’s work.10 

Similarly, Plaintiff argues that Dr. Weinstein rewrote the Plan by noting the lack of

“documentation of physical examination abnormalities, end organ damage, or uncontrolled

diabetes requiring urgent care, emergency room visits, or hospitalizations.” Ex. 14 at

AET/WIL 787; D Mot at 18. Again, it is not rewriting the Plan to seek additional details as

to how the diabetes manifested itself, as evidence of whether and how it caused a functional

impairment in Plaintiff’s work. For example, end organ damage, though not required by the

Plan, would be relevant; Dr. Cohen explained that “it is not the diabetes that would be

limiting but rather the end organ damage as a result of the diabetes which is often limiting.” 

AET/WIL 149. In addition, that Dr. Weinstein characterized Plaintiff’s hypoglycemic

crashes as “few” and “isolated,” Ex. 14 at AET/WIL 788, while Plaintiff characterizes them

as more frequent, Ex. 2 at AET/WIL 737, again shows not a rewriting of the Plan but a

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paucity of objective information as to the crashes, and their impact on Plaintiff. It is not

improper for a Plan to consider a lack of objective evidence. See Safavi v. SBC Disability

Income Plan, 493 F. Supp. 2d 1107, 1118 (C.D. Cal. 2007) (“While the lack of objective

evidence played an important part in the decision, the record does not demonstrate that

Defendant improperly demanded objective evidence without informing Plaintiff or that it

altered the requirements of the Plan”); see also Kushner v. Lehigh Cement Co., 572 F. Supp.

2d 1182, 1192 (C.D. Cal. 2008). 

Plaintiff also complains that Drs. Mendelssohn and Weinstein did not focus on

Plaintiff’s actual job duties. P Mot at 16, 18. As an initial matter, both stated that they had

reviewed Plaintiff’s job description. Ex. 12 at AET/WIL 776-77; Ex. 14 at AET/WIL 783-

84. Their having found that Plaintiff had no limitations from working logically means that

they found that he had no limitations from working in his own job. In addition, though

Plaintiff relies heavily on Dr. Ritzo’s finding that Plaintiff is disabled, Dr. Ritzo did not

detail the specific requirements of Plaintiff’s job, either– referring only to “stress including

legal issues related to [Plaintiff’s] work problems.” See Ex. 5 at AET/WIL 740. 

Plaintiff further argues that Aetna did not give sufficient weight to the SSA opinion

finding Plaintiff disabled not only as to his own occupation, but as to “any work existing in

significant numbers in the national economy.” P Mot at 18 (citing Ex. 4 at AET/WIL 768). 

Though he acknowledges that Aetna was not required to follow the SSA’s determination, see

Madden v. ITT Long Term Disability Plan for Salaried Employees, 914 F.2d 1279, 1285 (9th

Cir. 1990), Plaintiff argues that the determination is relevant on de novo review. P Mot. at

14. The Court agrees that the SSA determination is relevant; it simply disagrees with the

SSA’s conclusion. The SSA makes its benefits determinations under different standards, and

the Court does not have before it all of the evidence presented to the SSA. Madden, 914 F.2d

at 1286. Moreover, Aetna’s reviewing doctors did consider the SSA opinion, Ex. 12 at

AET/WIL 776-77; Ex. 14 at AET/WIL 783-84; they just, like the Court, reached different

conclusions.

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CONCLUSION

For the foregoing reasons, Plaintiff has not met his burden by a preponderance of the

evidence. Plaintiff’s medical condition– his combined diabetes, anxiety and depression– did

not prevent him from performing the material duties of his job as a sales manager. 

Accordingly, he is not totally disabled under the Plan for the claims period of August 2004 to

August 2006. The Court therefore GRANTS Defendant’s motion and DENIES Plaintiff’s

motion. The Court remands the question of Plaintiff’s eligibility for benefits post-August

2006 to the Plan. 

IT IS SO ORDERED.

Dated: January 19, 2010 

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

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