#### Fadi G. HADDAD, Plaintiff, v. SMG LONG TERM DISABILITY PLAN and Hartford Life and Accident Insurance Company, Defendants.

Case No. 16-cv-01700-WHO

United States District Court, E.D. California.

Signed August 22, 2017

Filed 08/23/2017

*968Laurence Padway,■ Law Offices of Laurence F. Padway, Alameda, CA, for Plaintiff.

*969Michael Bernard Bernacchi, Cindy Mek-ari, Burke, Williams & Sorensen, LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT

William -H. Orrick, United States District Judge

INTRODUCTION

The question in this ERISA denial of disability benefits case is -whether disabling symptoms caused by a surgery to treat a pre-existing condition fall under a limitation of benefits for disabling symptoms “that result[] from, or [are] caused or contributed to by, a Pre-existing Condition.” There is no dispute that: (1) plaintiff Dr. Fadi G. Haddad (Haddad) had a preexisting condition of cervical radiculopathy in the C5-6 cervical disk and that condition caused (prior to the surgery) non-disabling but significant and deteriorating neck pain as well as pain and paresthesia from the top of his right arm down to his right thumb; ■ (2) the surgery he underwent in March 2015 was to alleviate the cervical radiculopathy by replacing the diseased disk, and that he was advised pre-surgery that the operation carried risks of spinal injury and equipment failure; and (3) after that surgery, Haddad’s right -side symptoms improved dramatically (or were totally alleviated) but Haddad started to suffer from non-pre-existing and disabling symptoms on his.left side stemming from the C5-6 disk area. '

Defendant Hartford Life and Accident Insurance Company (Hartford) contends that the post-surgery disabling conditions were “caused or contributed to” by his pre-existing cervical disease because the disabling conditions were the direct result of treatment/surgery to treat the pre-exist-ing condition. Haddad asserts that because the symptoms that disabled him (left-side pain and paresthesia) were not the symptoms that-he sought the surgery for (right-side pain and. paresthesia), his coverage cannot be excluded .by-the pre-existing conditions limitation. I conclude that under the plain language of the Plan, the preexisting condition exclusion applies because the left side disabling symptoms were “caused or contributed to”, by the treatment for the pre-existing degenerative disk disease. Hartford’s motion for judgment is GRANTED and Haddad’s motion is DENIED.

BACKGROUND

I. THE PLAN

Defendant Hartford Life and Accident Insurance Company (Hartford) issued a group life and disability policy (Policy) tothe Trustee of the Health Care Industry Groúp Voluntary Life and Disability Insurance Trust (Trust or policy holder). AR 1064-1167. Hartfofd issued “certificates of insurance” (Certificates) to covered employees, outlining the benefits available. According to Hartford, these Certificates compromise the ERISA plan (Plan). Under the Plan sponsored ‘by plaintiffs former employer Sutter Medical Group .(Sut-ter), short-term disability (STD) and long-term disability (LTD) benefits were available. Haddad became covered by the Plan on July 28, 2014, his first day of employment with Sutter. AR 1058.

To be eligible, for STD. benefits under the Plan, an employee had to be unable to perform their regular or customary work. AR 1079-80. Benefits were payable for up to -22 weeks, but only six weeks if the disability was caused by a pre-existing condition. AR 1071. With respect to pre-exist-ing conditions, the Plan provided:

> Pre-Existing Conditions Limitation: Are benefits limited for Pre-existing Conditions?

> *970We will only pay benefits, or an increase in benefits, under The Policy for any Disability that results from, or is *caused or contributed to*by, a Pre-existing Condition for up to 6 week(s), unless, at the time You become Disabled:

> 1) You have not received Medical Care for the condition for 6 consecutive month(s) while insured under The Policy; or

> 2) You have been continuously insured under The Policy for 12 consecutive month(s).

> Pre-existing Condition means:

> 1) any Injury, Sickness, Mental Illness, pregnancy, or episode of Substance Abuse; or

> 2) any *manifestations, symptoms, findings, or aggravations related to or re-suiting from such*Injury, Sickness, Mental Illness, pregnancy, or Substance Abuse; for which You received Medical Care during the 6 month(s) period that ends the day before:

> 1) Your effective date of coverage; or

> 2) the effective date of a Change in Coverage.

AR 1075 *(emphasis*added).

The LTD Plan has a 180 days elimination period and provides coverage if the participant is unable to Work in their “own occupation.” AR 1097. The only substantive difference between the pre-existing condition limitation in the LTD and STD Plans is that medical care for a condition pre-coverage must have been within three months under the LTD Plan (as opposed to six month under the STD Plan). AR 1105.1

II. MEDICAL CONDITION AND CLAIM FOR STD

Haddad first experienced neck pain in 2013. AR 1048.2 On July 1, 2014, Had-dad had a cervical spine X-ray and .discussed his neck pain and right thumb numbness with pain with an orthopedic surgeon. AR 940-41, 945-46. The surgeon diagnosed mild right-sided C5-6 disk herniation. AR 940t-41.3

*971On July 28, 2014, Haddad started working at Sutter as a pediatric gastroenterologist. AR 1058. From August through November 2014, Haddad continued to seek medical care for his cervical radiculopathy that was causing him “mild right-sided C6 symptoms.” Haddad was being evaluated by medical personnel for cervical traction units and treated with physical therapy. AR 936-939, 942. During this time, Had-dad’s symptoms progressed from only neck pain and eventually, included pain and paresthesia from the top of his right arm down to his right thumb. AR 1048. He treated the condition with, physical therapy and anti-inflammatory medicines. *Id..*A November 2014 MRI, performed because of Haddad’s “neck-pain with radiculopa-thy,” showed “severe right foraminal narrowing and compression” of the C6 nerve at the C5-6 level and “C5-6 disk herniation.” AR 942, 944.

By early 2015, Haddad’s cervical problems were becoming more severe. In January 2015, he reported that his neck pain “worsened” with hyperextension and, “more recently” he began experiencing paresthesia from the right upper arm to his thumb. AR 1048; see *also*AR 942 (G5-6 examination). During a January 27, 2015 consultation regarding surgical treatment, he was diagnosed with “cervical radiculo-pathy” based on the MRI showing “forami-nal narrowing at C5-6.” AR 1049. In March 2015, when discussing surgical options, Haddad described his symptoms as having gotten worse over the last year. AR 1046-47. Again, based on his MRI, Dr. Cheng diagnosed Haddad with “foraminal narrowing at the right C5-6 level as well as disk degeneration.” *Id.*Haddad decided to undergo a C5-6 disk replacement and that operation was done by Dr. Cheng .on March 5, 2015. AR 1043-47. The postoperative diagnosis confirmed that Haddad had “C5-6 stenosis with radiculopathy,” and that a pre-operation MRI confirmed “severe stenosis.” AR 1043. Prior to surgery, Haddad was informed that the surgery carried risks of spinal ■ cord injury and failure of instrumentation. AR 1043.

On March 23, 2015, in a post-surgery appointment, Haddad reported that 95% of the right sided symptoms had been alleviated, but that he was suffering from new “shooting pain” symptoms. AR 1041. On review of imaging, the replacement disk appeared to be “flexed” but within the range of normal. AR 1042. In April 2015, Dr. Cheng attributed Haddad’s new symptoms to “facet irritation and inflammation” following the surgery but indicated that he could return to work. AR 383, 402. In May 2015, Dr. Cheng reported that Haddad’s radiculopathy symptoms were “completely resolved” but that he began having left-side neck pain and left-side paresthesia, and issued a note extending Haddad’s return to work through July. AR 401-02. On August 20, 2015, Haddad underwent a second surgery performed by Dr. Tay to remove the replacement disk and take other measures to attempt to solve the problem. AR 500. In September 2015, Haddad reported improved neck pain and imaging showed a.stable C5-6 plate and allograft, but discomfort still limited him from working. AR 527. In November 2015, Haddad reported existing pain- and inability to work, with physical therapy providing only a mild reduction in pain. AR 528.

Prior to the March 5, 2015 surgery, Haddad applied for STD benefits. AR 1060-61. In support of his claim, Haddad submitted an “attending physician statement” from Dr. Cheng that noted his diagnosis as “cervical radiculopathy” with an onset'date of July 2013. AR 183-185, 1063. Dr. Cheng’s attending physician’s statement (dated February 18, 2015), limited Haddad to clerical/sedentary work prior to the “cervical fusion” surgery. AR 1063. On March 18, 2015, Hartford notified Haddad that because his disability began within his *972first twelve months of coverage, Hartford was going to conduct a pre-existing investigation. AR 116. Under the Plan’s STD coverage, the issue was whether Haddad had been treated for the cervical radiculo-pathy in the six months prior to starting at Sutter (if not, there would be' no preexisting condition) and whether Haddad had been treated for the condition during his first six months of his employment— between July 28, 2014 and March 4; 2015.

Based on its investigation, Hartford applied the pre-existing condition limitation and provided only six wéeks of STD coverage. It reasoned that Haddad had received “medical care” for the C5-6 disk herniation and the resulting and progressive stenosis in the six months prior to his start at Sutter (therefore, he had a pre-existing condition) and that Haddad had received medical- care for the condition within the first six months of his employment at Sut-ter. AR 26. On November 12, 2015, Hartford advised Haddad that only six weeks of benefits were payable under the STD Plan as a result of his pre-existing condition. AR 39-41.

On May 10, 2016, Haddad appealed that decision-through Hartford’s administrative process. AR 912-13. Haddad argued there and argues now that his pre-existing condition was limited to “right-side” non-disabling conditions that were 95% resolved with the surgery. AR 912. However, because the replacement disk inserted during the March 2016 surgery “flexed” or because during the surgery new injuries were caused, Haddad now suffered disabling left-side symptoms. AR 912. As part of the appeals process, Haddad submitted a May 5, 2016 letter from Dr. Bobby Tay (the' surgeon who performed the second surgery). AR 912-15.

- In his letter, Dr.' Tay characterized the pre-surgery records as documenting right-sided conditions, caused by foraminal sten-osis on the right side of C5-6 disk, as well as a posterior disc spur which “possibly or definitely” compressed the exiting right C6 nerve. AR 914. According to Dr. Tay, this pathology explains Haddad’s right arm and hand symptoms, but “would not produce left arm symptoms” and there were no left-side symptoms. *Id.*Dr. Tay characterized Haddad’s postrsurgery records (submitted to Hartford as part of the administrative appeal), as showing new, left-side symptoms which were ’so severe as to prevent Haddad from working. AR 914-15. •The appearance of the left-side symptoms post-surgery was documented, according to Tay, on a post-surgery EMG that showed a left-side C6 lesion which was not present on the imaging done prior to the initial surgery. AR 915. Dr. Tay concluded that there was a left-side nerve-root injury that occurred during the March 5, 2015 disc replacement surgery. *Id.*

On May 18,-2016, Hartford upheld its initial decision because “[tjhough the claimant may not -have had left sided symptoms before his 03/05/2015 - surgery, they are the direct result of Treatment for his Pre-existing cervical diagnosis.” AR 35.

'This suit followed. The following facts are undisputed: (1) Haddad was diagnosed and had been under treatment since 2013 for cervical radiculopathy in the C5-6 cervical disk; (2) Haddad’s pre-operation C5-6 radiculopathy only produced right-side symptoms that were not in and of themselves disabling;4 (3) there was no evi*973dence of left C6 radiculopathy prior to the surgery; and (4) the new, disabling left-side symptoms were likely the result of the operation, caused by nerve irritation or injury while removing the diseased disk or installing the artificial disk.

LEGAL STANDARD

Under Section 502.of the Employee Retirement Income Security Act (“ERISA”), a beneficiary or plan participant may sue in federal court “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan,' or to clarify his rights to future benefits under the 'terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). A claim of denial of benefits in an ERISA case “is to be reviewed under a *de novo*standard unless the benefit plan gives the [plan’s] administrator or' fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” *Firestone Tire & Rubber Co. v. Bruch,*489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989).

Under the *de novo*standard, “[t]he court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits.” *Abatie v. Alta Health & Life Ins. Co.,*458 F.3d 955, 963 (9th Cir. 2006). The normal summary judgment standard applies under *de novo*review. *See Tremain v. Bell Indus., Inc.,*196 F.3d 970, 978 (9th Cir. 1999).

DISCUSSION

I.. THE POLICY & PLAN TERMS

As an initial matter, Haddad argues that because the actual Policy has not been produced in this action but only Certificates summarizing the Plan terms have, “broader latitude” should be granted to him in interpreting the terms of the Plan because of the “inherent lack of precision” caused by forcing him to rely on the summary Certificates. PI. Tr. Br. at 8.

According to Haddad, the “Plan” produced by defendants - is a booklet containing the applicable Certificates entitled “Your Benefit Plan.” The Certificates state that:

> The provisions of the Participating Employer’s coverage under The Policy, which are important to'You, are summarized in this certificate consisting of this form and any additional forms which have been made a part of'this certificate. . .The' Policy alone is the only contract under which payment will be made. Any difference between The Policy and this certificate will be settled according to the provisions of The Policy on file with Us at Our home office.

AR 1069 (STD), 1095 (LTD), 1127 (Life Insurance).

■ The ERISA section of the booklet states:

> The benefits described in your booklet-certificate(booklet) are provided under a group insurance policy (Policy) issued by the Hartford Life and Accident Insurance Company (Insurance Company) and are subject to the Policy’s terms and conditions. The policy is incorporatéd into, and forms a part of, the Plan.

AR 1152. Under “Plan Name,” this same page states: “Group Short Term Disability, Long Term Disability, Basic Term Life, Supplemental Dependent Life, Supplemental Term’ Life Plan for employees of Sutter Medical Group.” AR 1152-

Haddad argues that Hartford’s repeated refusal to produce the Policy means that Hartford cannot meet its burden-to prove that the STD pre-existing, condition language described in the Summary Plan/Certificate is the same as in the Policy. Relatedly, he argues that because the Policy has not been produced, the existence of a “conspicuous, plain and clear” exclusionary clause is drawn into question.

*974Haddad does not (and cannot) contend that the pre-existing conditions limitation ■in the STD Plan is not conspicuous. It is. As to the “Policy,” Hartford asserts that it did not need to produce the Policy because the Certificates define and clearly set out the terms and governing principles for benefits under the ERISA STD Plan for Sutter employees.5 Hartford Resp. Br. at 12 & n.9. However, in a supplemental declaration provided by Hartford after the close of briefing, Patricia M. .Pfeifer declares that the Policy at issue was issued in 1994, and for each employer “an amen-datory rider is added to the policy incorporating the' terms of its certificates and making it part of the policy.” Pfeifer Decl. [Dkt. No 31-1] ¶2. Pfeifer attaches the 2004 Policy as Exhibit 1 to her declaration. Under the terms of that Policy, the Certificates—the documents produced in this ease—control the coverage provisions, eligibility and effective date provisions, termination provisions, exclusions,.and other policy provisions relating to state and federal insurance requirements. Id. ¶ 4; Ex. 1 p. 5. Pfeifer admits that Hartford reissued the Policy to the Trust in 2008 and that she could not locate a copy of the current Policy, but she did locate the amendatory rider that incorporates Sutter’s Certificates applicable to Haddad. *Id.*¶ 5.

At oral argument, plaintiff argued that because both the Plan and the 2004 Policy have language indicating that the *other*document governs in case of dispute, there is no definitive answer as to how the preexisting condition language should be interpreted and plaintiffs proposed interpretation (essentially reading out the “caused or contributed to” language) should govern. However, plaintiffs counsel agreed that there was no language in the 2004 Policy that would change the interpretation or application of the pre-existing condition language in the Plan. Moreover, when read together, the Plan and the 2004 Policy are consistent; *exclusions*are to be determined under the language of the Plan. 2004 Policy at p. 5. Finally, the Certificates explaining the terms of the Plan that were in effect after the 2008 Policy reissuance (and that were produced in this case) maintained the same pre-existing condition exclusion language.

As such, I will not apply “broad latitude” and adopt plaintiffs reading of the preexisting condition exclusion that essentially reads out the “caused or contributed” language from the Plan.

II. HARTFORD’S STD DECISION

Given the language of the STD Plan and the undisputed evidence, I conclude that the symptoms that Haddad claims are disabling—the left-side pain and paresthesia and neck pain—were “caused or contributed to” by Haddad’s pre-exist-ing condition, the diseased C5-6 disk. The surgery that Haddad alleges caused his new, disabling problems was undertaken in order to alleviate the C5-6 disk problem. That Haddad was further injured as a result of that treatment, does not preclude application of the pre-existing condition limitation.

This conclusion is consistent with district court cases that have addressed this issue on similar facts under similar policy language. For example, in *Breen v. San-tander Glob.Facilities,*No. CIV.A. 10-12032-RGS, 2012 WL 1857403, at *1 (D. Mass. May 22, 2012), the plaintiff sought *975pre-coverage treatment for back pain and was diagnosed with multiple lumbar disk herniations with radiculopathy. Plaintiff claimed that post-coverage and post-surgery he became disabled and contended that his “disability diagnosis of post lami-nectomy syndrome did not directly result from pre-existing degenerative disk disease, but instead from his less than successful back surgery, which occurred after coverage attached under the Policy.” *Id*at *5. Applying the highly deferential abuse of discretion standard, the court concluded that “it was not unreasonable, much less arbitrary and capricious, for Liberty to have concluded that Breen’s post-operative lower back disk problems were proximately caused by his preexisting lower back disk problems.” *Id.*at *6; *see also Topazian v. Aetna Life Ins. Co.,*No. 10 C 4702, 2011 WL 3419375, at *6-8 (N.D. Ill. Aug. 1, 2011) (affirming denial under deferential' abuse of discretion standard because plaintiff “long suffered from problems in the lower lumbar region of his spine” and while- plaintiffs “condition may have changed” and indeed worsened with new symptoms appearing “as. a result of his most recent surgery, it was not unreasonable for Aetna to conclude that this was merely an exacerbation of a previous condition, not an entirely new one.”).

■ Similarly, in *Bannon v. Assurant Employee Benefits,*No. CIV.A.09-6666, 2010 WL 2037548, at *1 (E.D. La. May 20, 2010), the court, applying the deferential abuse of- discretion standard, concluded that a policy limitation excluding payments for “any disability resulting, • directly or [in]directly, from a pre-existing condition” excluded coverage for a disability caused by lithium toxicity resulting from a medication plaintiff took to treat his pre-exist-ing bipolar condition. The court found that because “the [ ] policy by its1 terms extends to related conditions and disabilities that result indirectly from them, the facts- in the Administrative Record justify application of the Pre-Existing Condition with the resulting limitation of benefits,” as lithium toxicity was a “related condition” to the bipolar disorder and the disability resulted indirectly from the bipolar disorder. *Id. at**6.

Finally, in *Rose v. Hartford Life & Accident Ins. Co.,*No. 11-CV-02905-WJM-CBS, 2014 WL 2609628, at *3 (D. Colo. June 11, 2014), the district court affirmed a denial of benefits for a pre-existing condition under de novo review.' The pre-existing condition policy language was materially similar to the one here. In *Rose,*the plaintiff had “a long history of problems with' her spine, including thoracic'kyphosis, which is a severe curving of the spine.” *Id.*at *6. After reviewing the medical evidence, the court found substantial evidence to affirm Hartford’s denial on the basis that plaintiff’s disabling neck pain “resuits from, or is caused or contributed to by” her compensation for the thoracic kyphosis. *Id.*at *7.

Haddad argues that these district court cases are irrelevant as they are not binding precedent. He distinguishes *Breen, Bannon,*and *Topazian*because they were decided under the more deferential abuse of discretion standard. And he asserts argues that. *Rose*is inapposite because in that case plaintiffs neck pain was a “natural progression” of her curved spine, whereas here it was the surgery—not a natural progression of .the disk disease— that caused a new injury and led to the left-side symptoms.

That said, I find the referenced district court opinions persuasive. The *Breen, Bannon,*and *Topazian*opinions did not necessarily turn on the deferential standard applied. They relied on whát a reasonable interpretation of “caused or contributed to” is, as applied to conditions that have worsened due to treatment or progression of a disease.

*976Here the relevant facts are not in dispute. The language of the Policy , is not in. dispute. The “caused or contributed to” language from the Plan is clear and unambiguous. It was applied by Hartford to the facts based on substantial evidence connecting Haddad’s left-side symptoms, which occurred immediately after the initial operation to address his pre-existing disk disease condition, to his pre-existing diskdiséase.

Haddad encourages me to follow *Fought v. UNUM Life Ins. Co. Of Am.,*379 F.3d 997 (10th Cir. 2004), There, following elective heart surgery, the plaintiff developed a severe staph infection. The district court granted summary judgment to the insurer who had denied the disability claim, concluding that plaintiff “suffered from a pre-existing coronary artery condition that ‘caused,’ ‘contributed to,’ or ‘resulted’ in” her disability because the staph infection was a result of the coronary bypass surgery. *Id.,*at 999—1001. The Tenth Circuit reversed. As framed by the Tenth Circuit:

> The major difficulty presented by this case is that UNUM’s policy excludes coverage for disabilities caused by preexisting conditions, whereas it seeks here to apply its policy as if it excludes •coverage for disabilities caused by complications from surgery for pre-existing conditions; Surgery is not, of course, a pre-existing condition, but at most a necessary consequence of a pre-existing condition. In essence, therefore, this case becomes a matter of where we draw the line on chains of causation.

*Id.*at 1009. The chain of causation there contained five very attenuated stages. *Id.*(“The failure of non-surgieal alternatives, initially successful elective surgery, later complications from that surgery, initially successful treatment of those complications,' and finally a drug resistant infection due to those complications, which in itself may have been caused by the intervening presence of Staphylococcus aureus due to faulty sterilization; sanitation, ete.”). The Tenth Circuit concluded that - accepting that extremely attenuated causal link “would effectively render meaningless the notion of the pre-existing condition clause by distending thé breadth of the exclusion.” *Id.*at 1010. Rejecting the long chain of causal links in Fought’s ease, with intervening causes, the court instead held that “the disabling condition must be substantially or directly attributable *to*the preexisting condition.” *Id.*at 1011; *see also Cash v. Wal-Mart Group Health Plan,*107 F.3d 637 (8th Cir.1997) (applying pre-exist-ing condition exclusion where the pre-ex-isting condition (diverticula) was a “necessary precursor” and cased a complication and secondary condition (diverticulitis) to develop). , -

As Hartford argues, and contrary to Haddad’s-interpretation, the *Fought*case actually supports ■ application of the preexisting condition exclusion here. First, the causal chain with Haddad’s disability is much shorter and does' not involve unanticipated intervening causes or results such as those that flowed from the faulty sterilization/sanitation resulting in Fought’s staph infection.' Here, the disabling conditions flow directly from the fact that Had-dad had a diseased C5-6 disk that required surgery. That the surgery did not work and/or exacerbated Haddad’s symptoms does not mean his disabling symptoms were not caused or contributed to by his C5-6 disk disease.

Second, Haddad was advised that surgery to treat his diseased disk could result in spinal injury or failure of instrumentation. AR Í043, The *Fought*court distinguished cases which held that well-known complications from a disease—such as glaucoma following from diabetes—would trigger, the pre-existing condition, exclusion *977but unrelated “complications from treatment or surgery” would not. *Id.*at 1011. Here, Haddad had disk disease between the C5-6 vertebrae that caused radiculopa-thy of the 06 nerve, although that radicu-lopathy only caused symptoms on his right side. He had an operation to remove the diseased disk, but that surgery likely caused a connected and known complication, altering the nature and degree of his symptoms.6

Haddad also relies on *McLeod v. Hartford Life & Acc. Ins. Co.,*372 F.3d 618, 620 (3d Cir. 2004). There, interpreting slightly different language under a heightened abuse of discretion standard of review, the Third Circuit rejected an argument that “receiving medical care ‘for symptoms’ of a pre-existing condition encompasses receiving care for symptoms that no one even suspected were connected with the later diagnosed ailment but which were later deemed not inconsistent with it.” *Id.*at 624. In *McLeod,*the plaintiff was treated for numbness in her arm by a doctor who had for many years also treated plaintiff for “cardiac insufficiency” and for multiple bulging cervical discs. *Id.*at 621. Post-coverage, plaintiff was diagnosed with multiple sclerosis (MS), which in retrospect accounted for many if not most of her symptoms. *Id.*However, because McLeod had never been treated pre-coverage for her “condition” of MS and MS had never been considered a potential diagnosis, the fact that some of her MS-symptoms had been treated did not suffice to trigger the pre-existing condition exclusion. *Id.*at 628.

The *McLeod*court’s analysis of different policy terms and an unsuspected condition is not apposite. Here, Haddad received pre-coverage care for symptoms of a diagnosed condition; C5-6 disk disease. That the symptoms of his disease were confined (pre-surgery) to.his right side and after the unsuccessful treatment shifted to his left side and became more severe does not mean that his C5-6 disk disease and C6 root compression were not pre-existing.

Finally, as opposed to the proximate cause standard adopted in *Fought,*in his response brief Haddad appears to advocate for application of the common law “process of nature” rule to define when a disability is “related to or resulting from” a pre-existing condition.7 “Related to or resulting from”' is not the relevant language at issue in'this case! The language Hartford applied is “caused or contributed to by, a Pre-existing Condition.” AR 1075. The question, therefore, is not limited to what symptoms a natural progression of Haddad’s C5-6 disk disease might have caused, but whether his disabling C6. condition was “caused or contributed to” by his C5-6 disk disease, Hartford’s interpretation of the Plan language was reasonable. And its determination was based on substantial evidence that is not undermined by any dispute' of fact or contrary *978evidence raised in the administrative appeals process by Haddad.

CONCLUSION

For the foregoing reasons, Hartford’s motion for judgment is GRANTED and Haddad’s motion is DENIED.8

IT IS SO ORDERED.

1

. As discussed below, plaintiff, challenges whether the Certificates produced by Hart- ' ford constitute the actual Plan át issue.

2

. In its response brief, Hartford relies on allegations made in a lawsuit Haddad is pursuing in the Eastern District of California, *Haddad v. Hilton Worldwide Holdings, Inc.,*EDCA 16-cv-405 (Hilton Complaint). In that lawsuit, Haddad alleges that the damage to his C5-6 disk was sustained during a massage at a Hilton Hotel in Abu Dhabi. Hilton Complaint ¶¶ 19-22. Haddad also alleges that he has been unable to work since 2015 "as a result” of the injury he suffered during the massage. *Id.*¶ 27. Haddad objects to Hartford’s introduction of this evidence because it was not part of the administrative record and not included in Hartford’s initial disclosures. Dkt. No. 30, ¶ 2. However, the complaint and case history are subject to judicial notice as court records and the objection is OVERRULED. *See Hunt v. Check Recovery Sys. Inc.,*478 F.Supp.2d 1157, 1160-61 (N.D. Cal. 2007). Haddad also objects to Hartford’s citation to a website as support for "known risks” of disk replacement surgety. Dkt. No. 30, ¶ 1. I do not rely on that website/citation, and the objection is OVERRULED as moot. Similarly, Haddad objects to inferences and legal assertions made by Hartford as being made outside the administrative record or without adequate citations. *Id.*¶¶ 3-6. I do not rely on those arguments or evidence here, and these objections are likewise OVERRULED as moot.

3

.Dr. Tay characterizes Haddad's condition as "right arm radiculopathy in the C6 distribution, down to the right thumb, beginning in the fall of 2013.” AR 541. Despite the difference in language, no one contends that there is a material distinction between Tay’s characterization of Haddad’s pre-operation condition and Haddad’s July 2014 diagnosis. *See*Pi. Mot. [Dkt. No. 26] at 2-3 ("We do not contest that Dr.. Haddad had a C5-6 radiculo-pathy which produced right-sided symptoms.”).

4

. Hartford attempts to cast some doubt on the ■ significance and degree of the pre-surgery . symptoms, noting that in Haddad's personal injury action, Haddad has complained of “constant pain” since the 2013 injury and that two weeks prior to his first surgery Dr. Cheng signed an attending physician statement noting that Haddad had an impairment in hjs functionality due to the disk disease and that he was capable only of clerical work until surgery, AR 1063. However, for purposes of ruling on this motion, I assume that plaintiff's symptoms were not disabling prior to surgery.

5

. The parties dispute when Haddad asked for the Policy to be produced. Haddad’s counsel claims he requested it on January 12, 2016, as part of a request for all relevant documents, Ex.2 to Padway Deck [Dkt. No. 28-1], Hartford argues that the specific request for the Policy was not made until after discovery-cut off and on the eve of briefing these motions. Hartford Resp. Brief at 12, n.9.

6

. Haddad argues that if accepted, Hartford’s argument would exclude coverage in a case where a pre-existing condition,leads to surgery and in surgery "an anesthesia misadventure” leads to paralyzed vocal cords. PL Resp. Br. at 5, That hypothetical is more far close to the attenuated, causal links in the *Fought*case than the close casual connection here.

7

. For his definition of the “process of nature rule,” Haddad relies on *McClure v. Life Ins. Co. of N. Am.,*84 F.3d 1129, 1135 (9th Cir. 1996). There, the Ninth Circuit considered an accidental death and disability policy that insured against loss “resulting directly and independently of all other causes from bodily injuries caused by accident,” where the insurer argued that because the plaintiff had a preexisting back condition, his disability did not result- “directly and independently” from the accident. However, the Ninth Circuit did not reach the issue on the merits and instead remanded to the district court to determine whether the "directly and independently” language appears in such a "clear, plain and conspicuous” manner so as to defeat plaintiffs "otherwise' reasonable expectation of coverage.” *Id.*at 1136.

8

. As his motion for STD benefits is denied, I do not reach Haddad’s other claims for LTD benefits and interest at a certain rate.