1 – FINDINGS AND RECOMMENDATIONS 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

LYNN C. LAURIE, 

Plaintiff, 

v. 

UNITED OF OMAHA LIFE INSURANCE 

COMPANY, 

Defendant. 

 

Case No. 3:14-CV-01937-YY 

FINDINGS AND 

RECOMMENDATIONS 

YOU, Magistrate Judge: 

INTRODUCTION 

 Plaintiff, Lynn C. Laurie (“Laurie”), is a Certified Public Accountant (“CPA”) at the 

accounting firm Delap, LLP (“Delap”), and was a participant in an employee benefits plan 

(“Plan”) sponsored by Delap that offered long-term (“LTD”) and short-term (“STD”) disability 

benefits to eligible employees. Laurie filed this action on December 4, 2014, alleging the Plan 

administrator, United of Omaha Life Insurance Company (“United”), violated the Employee 

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), by denying her 

claims for STD and LTD benefits. This court has jurisdiction over this action under 28 U.S.C. 

§§ 1331 & 1132(e)(1). Laurie seeks declaratory relief under 29 U.S.C. § 1132(a)(3)(B) in the 

form of a judgment finding: (1) she was entitled to receive eleven weeks of STD benefits from 

United in May, June, July, and August 2012; (2) she has been entitled to receive LTD benefits 

from United since August 2012; and (3) she will be entitled to continue to receive monthly LTD 

benefits from United until she reaches age 67, as long as she continues to remain “Disabled” 

under the terms of the United LTD policy. Complaint, ECF #1 ¶ 32. 

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Based on a stipulated record (ECF #33), the parties have filed cross-motions for summary 

judgment pursuant to FRCP 56. Because United’s decision to deny Laurie both STD benefits 

and LTD benefits was an abuse of discretion, Laurie’s Motion (ECF #34) should be granted, and 

United’s Motion (ECF #36) should be denied. 

FACTUAL BACKGROUND 

I. Relevant Medical History 

 In 2003, Laurie suffered from a bought of extreme fatigue that forced her to miss work 

for the next three weeks, where she slept for 15 to 18 hours per day. AR 745, 1051.1 Over the 

next 10 months, Laurie was examined by at least 18 different physicians and other medical 

providers in attempts to determine the source of what she described—and what her physicians 

reported as—“profound,” “extreme,” and “overwhelming” fatigue. AR 467–470, 1003, 1014, 

1019, 1051. Because it was suspected that Laurie suffered from Chronic Fatigue Syndrome 

(“CFS”), she was eventually referred to rheumatologist Howard Ghandler, M.D. AR 1014–15. 

Laurie’s symptoms continued, and in June 2004, with Dr. Ghandler’s referral, she sought 

treatment at the Mayo Clinic. AR 1022–56. Steve Krotzer, M.D., conducted a series of 

diagnostic tests, and after excluding many other potential conditions, diagnosed Laurie with 

CFS. AR 1023–24. Dr. Krotzer prescribed several conservative treatments, including increasing 

salt intake, avoiding sitting or standing for long periods of time, maintaining good nutrition and 

sleep, and practicing a modest exercise program. AR 1023, 1052. Following these 

recommendations—and with the regular input of her treating physician, Thomas Kasten, M.D.—

Laurie managed her CFS symptoms for the next eight years. AR 1058–72. 

 

1

 Citations to “AR” are to the last four digits of the Administrative Record (ECF #33), beginning 

with “United-000”. 

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However, on May 7, 2012, following that year’s tax season, Laurie suffered an extreme 

exacerbation of her CFS symptoms, commonly referred to as a “CFS crash.” AR 1073. On May 

17, 2012, Dr. Kasten described Laurie’s condition following the CFS crash as follows: 

Trying to carry on with her routine. She did not see the fatigue coming. There 

was no preceding expenditure of energy that led to this. Felt drugged when she 

awoke on the 7th. Slept until 2 PM. Was awake for 4 hours and then went to 

sleep again at night. Still has continued to have severe sleep need. Fatigue is 

often just physical but feels mental fatigue as well. Feels lightheaded. 

AR 1073. Dr. Kasten noted that Laurie additionally suffered from non-fatigue symptoms 

including hot flashes and headaches. His chart notes indicate that she was “well appearing, 

comfortable appearing, non-ill appearing, pleasant, [well-nourished] and hydrated,” and of 

“normal mood, affect, speech, [and] thoughts.” AR 1073–74. 

During a follow-up appointment on June 18, 2012, Laurie reported that she had only 

worked eight days since the event. AR 0070 (working 45 hours in May 2012); AR 1143 

(working 55 hours in June 2012). She reported continued fatigue: “Not strong enough to sing in 

church. Is exhausted by the time she gets out of the shower but not enough energy left to go to 

work. Tries to walk around the block once to three times a day to keep moving. Sometimes she 

cannot make it around the block.” AR 1076–77. Dr. Kasten noted that Laurie had “never 

got[ten] a full neuro or psychiatric evaluation.” AR 1076. 

Dr. Kasten ultimately prescribed a medical leave of absence: “[n]ew worsened fatigue 

has [disabled] her [beyond] capability of continuing work. I recommend she take [a leave] of 

absence due to disability.” AR 1077. Laurie took a medical leave of absence from work in 2012 

from late June through August—a total of eleven weeks. AR 1076. 

Laurie met with Dr. Kasten again on July 24, 2012. Laurie had started counseling, and 

found it to be helpful in a way that all “her very plentiful support system of friends and family 

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does not cover.” AR 0170–71. Dr. Kasten found that Laurie’s CFS was currently “more 

disabling than it has been in recent years.” AR 0171. However, “[s]ignificant stressors at work 

are being reduced and that bodes well for her eventual success[.]” Id. She would be able to 

return to part-time work but was “not ready yet.” Id.

 Between July and November 2012, Laurie underwent a sleep study with Dr. Daniel Root 

and his colleagues to determine if a sleep disorder was contributing to her symptoms. AR 1230–

52. While Dr. Root found that Laurie suffered from periodic limb movements, arousals, alpha 

intrusion, and reduced slow-wave and REM sleep, he concluded “[s]leep is not likely the primary 

driver of her fatigue.” AR 1251. 

 Throughout her medical leave, Laurie continued to experience fatigue. On August 30, 

2012, Laurie told Dr. Kasten that after 1.5 hours of sitting at the computer doing basic 

bookkeeping work for her husband, she “mostly need[ed] to be lying down for the entire 

following day.” AR 0204. Laurie reported progress in her ability to stand and sing at church but 

no improvement in her morning energy levels, making it hard for her to get out of bed at 7 a.m. 

and leaving her feeling poorly until 10 a.m. Id.

 When she returned to work part time at Delap, she continued to be fatigued even by her 

reduced work schedule. In November 2012, she reported to Dr. Kasten that after working three 

hours per day on three different days over a two-week period, she experienced migraine 

headaches for the first time in several months. AR 0206. She also had arm heaviness and a 

racing heart after showers. Id. When she was not working, she was lying on her back with her 

feet up. Id. 

 On January 6, 2013, Laurie described to Dr. Kasten the effects of working more than 2.5 

hours: “She worked 2.5 hours this past Monday at home. Then went to office to finish collating 

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attachments, was up, driving and finished her work goals[.]” AR 0208. Afterward, she “could 

not do anything the next two days.” Id. She “[h]ad to lie in bed for the most part over the next 

two days.” Id. 

 After working 4.5 hours in early March 2013, Laurie crashed the next day: “[s]he got up 

to eat a []little breakfast but was in bed the remainder of the time yester[day] until getting up.” 

AR 0180. A five-hour day several weeks beforehand also forced her to take the next day off in 

bed. Id. However, Laurie observed that the time it took for her to recover from her crashes had 

decreased. Id. 

 By April 18, 2013, Laurie reported improvement in her morning energy levels. AR 

1136–37. She told Dr. Kasten that she was able to “get functional earlier in the day,” waking at 

7 a.m. daily, and performing stretches in bed. AR 1136. She was able to begin work earlier, 

starting at 9 a.m. instead of 10:30 or 11 a.m. Id. She preferred working from home so she did 

not waste energy by commuting and could rest when needed. Id. However, Laurie continued to 

crash for two days if she worked more than four hours on a previous day. Id. Dr. Kasten opined 

that, given her slow but steady improvement, her goal of “working 3 out of 6 days in the office 

for 4 hours [was] a reasonable goal.” AR 1137. 

On October 21, 2013, Laurie reported to Dr. Kasten that she had been able to get into the 

office two days per week in the past month. AR 1150. She was working an average of 3.5 hours 

each day she went into the office and her stamina was improving. Id. However, after a bad 

night’s sleep, she was exhausted after merely showering and did not have enough energy to 

work. Id. Dr. Kasten recommended a continual gradual increase in work hours as tolerated. Id. 

He noted Laurie was “constantly balancing exertion level with [the] need for immobility and 

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6 – FINDINGS AND RECOMMENDATIONS 

rest” and that she “appears to be trying her best to walk this line between increase work 

hardening and flaring fatigue.” Id.

II. Work Duties and Schedule 

 Laurie has worked at Delap since 1998. AR 1378. She relinquished her partnership 

position at Delap after she began experiencing CFS symptoms in 2003. AR 1076, 1378. With 

Delap’s accommodations, however, Laurie has continued to work as a Tax Principal: an 

employee with reduced hours, but with significant responsibilities. 

At the times Laurie filed for STD and LTD benefits, she was responsible for: serving as 

primary client contact for tax engagement teams; developing successful client relationships; 

overseeing project teams; planning engagements; budgeting and managing time; directing and 

supervising tax-services staff; monitoring and ensuring timely completion of client engagements; 

rectifying tax and accounting issues; reviewing tax engagements to ensure completeness and 

accuracy; complying with Delap’s policies, procedures, and quality controls; conducting research 

and making recommendations to senior management; acting as a mentor and instructor; 

preparing accounting curriculum for new employees; and other duties as assigned. AR 0066–67. 

Laurie’s position also required that she develop: leadership skills to guide the tax and accounting 

department; have strong organizational and project management skills; an aptitude for strategic 

planning with entrepreneurial and visionary mentality; emerging business development skills; 

strong client-relationship-management and interpersonal skills; excellent written and oral 

communication skills, creative problem-solving skills, and strong analytical skills; the ability to 

schedule time and workload to simultaneously conduct multiple engagements in an efficient 

manner, delegating to accounting staff when needed; the ability to lead and work effectively as 

part of a team yet function well with independent responsibilities; an excellent working 

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knowledge of a multitude of tax and accounting software and technology resources; a strong 

knowledge and understanding of accounting, tax, and related business trends; the ability to 

successfully interact in Delap’s culture of integrity; and be involved in the community through 

events, organizations and activities. Id. Further, her position required her: to sit and stand at the 

office and at a client’s place of business, or in a car; walk within the office and while out 

servicing clients; get in and out of a vehicle; occasionally stand, stoop, bend, or reach; lift up to 

20 pounds; and have the manual dexterity sufficient to operate a computer, calculator, and 

telephone. Id.

 After returning to Delap following her medical leave, Laurie’s goal was to work 2.5 to 3 

hours per day if possible. AR 0206. She eventually increased her work schedule to between 3 

and 3.5 hours per day, while occasionally working up to 4 hours per day during tax season. AR 

0747, 1379. Delap allowed her to work from home. Id. Many of her job duties, however, which 

included training other employees, were less efficient or impractical to do away from Delap’s 

office. AR 1136. 

 In November 2012, two months after her return, Laurie was working on weekdays and 

sometimes on Saturdays, but she was unable to work three days in a row. AR 206. Even three 

hours of work left her “very tired and . . . unable to concentrate.” Id. In December 2012, she 

worked 54 hours (three hours maximum per day). AR 0208. In January and February 2013, she 

worked an average of 14 hours per week. AR 0180. In March 2013, Laurie increased her work 

hours to an average of 3.5 hours per day for 6 days a week while working at home. AR 0180, 

1136. She tried to get into her home office earlier in the morning, but it generally took three 

hours to “warm up” and she began working by 10 a.m. AR 0180. Laurie worked a total of 85 

hours in March, 67 hours in April, 63 hours in May, and 55 hours in June of 2013. AR 1143. 

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During those months, she worked an average of four hours maximum per day and she “needed 

more rest after working more.” Id. In October 2013, Laurie was finally able to work in the 

Delap office two days per week. AR 1150. Dr. Kasten noted that in 2013 Laurie had “shown 

gradual increased work tolerance and she appears to be trying her best to walk this line between 

increase work hardening and flaring fatigue.” AR 1151. 

Laurie is considered full time at 24 hours per week. ECF #34, at 8; ECF #36, at 4. 

However, she has only worked an average of 16 hours per week since her CFS crash in May 

2012. Laurie worked 1,266 hours in 2011 (AR 1170), 550 hours in early 2012 before taking the 

leave of absence (AR 1179), and another 152 hours in late 2012 for a total of 772 hours in 2012 

(AR 1199), and 793 hours in 2013 (AR 1223). 

III. STD and LTD Plan Terms 

At the time of Laurie’s 2012 CFS crash, Delap held Group STD and LTD Plans through 

United. AR 0001–45, 0647–93. Laurie is covered under both Plans. Id. Under the terms of the 

STD policy, if an eligible employee becomes “Disabled due to Injury or Sickness,” United will 

pay a Weekly Benefit after the employee “satisf[ies] the Elimination Period shown in the 

Schedule relevant parts.” AR 0029. The Maximum Benefit Period for receiving weekly STD 

benefits is “a continuous period of . . . 11 weeks.” AR 0020. 

Disability and Disabled means that because of an Injury or Sickness, a 

significant change in Your mental or physical functional capacity has occurred in 

which: 

 (a) during the Elimination Period,2

 You are prevented from performing the 

 Material Duties of Your Regular Job (on a part-time or full-time basis) 

 or are unable to work Full-Time; and 

 (b) after the Elimination Period, You are: 

 (1) prevented from performing the Material Duties of Your 

 Regular Job (on a part-time or full-time basis) or are unable to 

 work Full-Time; and 

 

2

 The “Elimination Period” under Delap’s STD policy is 14 calendar days. AR 0044. 

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9 – FINDINGS AND RECOMMENDATIONS 

 (2) unable to generate Current Earnings which exceed 99% of 

 Your Weekly Earnings due to that same Injury or Sickness. 

. . . 

Material Duties means the essential tasks, functions, and operations relating to 

Your Regular Job that cannot be reasonably omitted or modified. 

AR 0039–40 (emphasis added). 

 Under the terms of the LTD policy, if an eligible employee becomes “Disabled due to 

Injury or Sickness,” United will pay a Monthly Benefit of 60% of the employee’s Basic Monthly 

Earning, or the maximum monthly benefit, which is $10,000.00. AR 0649, 0671. 

Disability and Disabled mean that because of any Injury or Sickness, a 

significant change in Your mental or physical functional capacity has occurred in 

which You are: 

 (a) prevented from performing at least one of the Material Duties of Your 

Regular Occupation on a part-time or full-time basis; and 

 (b) unable to generate Current Earnings which exceed 99% of Your Basic 

Monthly Earnings due to that same Injury or Sickness. 

. . . 

Material Duties means the essential tasks, functions, and operations relating to 

an occupation that cannot be reasonably omitted or modified. In no event will We 

consider working an average of more than 40 hours per week in itself to be a part 

of material duties. One of the material duties of Your Regular Occupation is the 

ability to work for an employer on a full-time basis. 

AR 0682–83 (emphasis added). 

 The Plan provides a “work incentive” provision allowing an eligible employee to receive 

the monthly LTD benefit while continuing to work: 

 You may work for wage or profit while Disabled. As a work incentive, 

You will receive the Monthly Benefit, unless the sum of: 

 (a) the Gross Monthly Benefit while You are Disabled; plus 

 (b) Current Earnings; 

exceeds 100% of Your Basic Monthly Earnings. If this sum exceeds 100% of 

Your Basic Monthly Earnings, the Monthly Benefit will be reduced by that excess 

amount. 

AR 0659. 

/// 

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IV. Claims for STD and LTD Benefits 

 Laurie made claims with United for STD benefits for the 11-week period in which she 

was unable to work. At the same time, Laurie filed a claim for full LTD benefits to cover her 

leave during August, September, and October 2012, and for partial LTD benefits for the period 

when she returned to work part time in October 2012. Laurie’s STD claim was initially denied 

on November 20, 2012 (AR 401–05), and upon appeal on August 22, 2013. AR 0081–86. Her 

LTD claim was denied on March 19, 2014 (AR 941–51), and again on appeal on September 16, 

2014. AR 0702–06. 

1. Medical Opinions

 In response to Laurie’s claims, several medical opinions were solicited, which are 

synopsized below: 

A. Thomas Kasten, M.D. (Laurie’s treating physician) 

 Dr. Kasten is a family practice doctor and has been Laurie’s primary care provider since 

2007. AR 0245. Excerpts from his medical reports are set forth supra Section I. However, Dr. 

Kasten restated and explained his medical opinions in three different letters to United. 

On November 12, 2012, Dr. Kasten sent a letter to United, opining that Laurie is unable 

to work even her part-time schedule in a “sustained manner everyday [sic] of the week” because 

flare ups cause her to have worsening fatigue in following days: 

[Laurie] has been unable to work in any productive manner despite her work 

being fairly sedentary by nature. Fatigue comes from not only physical exertion 

but mental exertion as well. Tasks as [simple] as standing and sitting can be 

exhausting for [Laurie]. I have reviewed with [Laurie] her job description and 

duties. . . . Her job requires her to sit most of the time, standing at others while 

conferencing with clients or colleagues. Her fatigue can be brought on even by 

sitting. During this time of her leave, her fatigue has been severe enough that 

even sitting for 2 hours has been intolerable at times. She can recuperate if 

allowed to lay down with her head supported. During this leave, the demand of 

her jobs requiring her to stand for even less than an hour have been too great as 

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11 – FINDINGS AND RECOMMENDATIONS 

her stamina does not allow that. Given her inability to even show at times points 

to a level of disability that prevents her from working for more than 3 hours in a 

row. She may be able to work for a few hours on a few days a week with breaks 

in between but unable to do that in a sustained manner every day of the week. . . . 

When she is in a flare, her exertion always put[s] her at risk of worsening fatigue 

the following day. 

. . . 

Her mental and intellectual capacity has not been fully tested but it makes sense 

that her fatigue prevents her from being able to concentrate and attend to her work 

in a continuous fashion as is necessitated by the tasks for which she is 

responsible. 

. . . 

Her commute is also a factor in her exhaustion. Time taken for commute is 

currently time taken away from her potential productive work hours. 

. . . 

[D]uring the time of her leave, she has been completely incapacitated by fatigue 

and unable to work in her conventional office setting. 

AR 0245–46. 

 On March 21, 2013, Dr. Kasten wrote another letter refuting United’s opinion that Laurie 

could perform sedentary work. Dr. Kasten reiterated that Laurie was unable to maintain a 

consistent schedule in a “sustained manner everyday [sic] of the week” because it “resulted in 

severe fatigue on subsequent days”: 

Laurie is and has been disabled. She has been unable to perform sedentary work 

as a defined by the Department of Labor and described clearly in the denial letter 

sent to her. During the time of her leave for which she sought disability benefits 

this past year, she has been unable to work for more than 3 hours in a row even 

though that is sedentary work. She has most definitely been unable to sit and hold 

her head up and attend to her accounting and consulting work for 6 hours out of 

an 8-hour workday. She had been unable to sit for 6 hours out of an 8-hour 

workday even without performing the mentally taxing requirements of another 

part of the definition of sedentary work. More importantly, she is unable to 

concentrate and attend to tasks required of her job for an adequate number of 

hours to qualify as performing the Materials Duties of her position. There were 

times when she had been unable to work 3 hours [in] a row a few days a week 

with breaks in between but unable to do that in a sustained manner everyday of 

the week. When attempted, this limited amount [of] work resulted in severe 

fatigue on subsequent days which prevented her tolerating any exertion greater 

than the basic activities of daily living. It is my medical opinion that [Laurie] has 

been severely disabled by chronic fatigue syndrome as per the standards laid out 

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in her claim denial letter. It is also clear from reading this letter that the content 

of my previous letter dated November 13, 2012 was not considered. 

AR 0235. 

 On January 29, 2014, Dr. Kasten wrote a third letter in support of Laurie’s STD and LTD 

claims again reiterating that she was unable to work 24 hours a week without “serious risk of 

suffering another severe flare” of her CFS symptoms: 

This illness is disabling because it reduces her tolerance of activities normally 

expected of a healthy individual. Her baseline tolerance of physical activity 

(including, activities of daily living, doing minor physical tasks such as light 

housekeeping or walking, as well as cognitive tasks such as those needed to work 

as an accounting specialist) is greatly limited by this disease to greater than 50% 

of her pre-diagnosis levels. The post-exertional fatigue to which she is 

susceptible can leave her with lasting symptoms of worsened fatigue for days 

after increased activity. It was after tax season of 2012 during which typical 

increased demands on her work productivity led to a “crash” of increased 

symptoms including fatigue, increased sleep requirement, [drowsiness], 

lightheadedness, shortness of breath and increased heart rate. She [has] not 

return[ed] to a level of functioning since this “crash.” 

. . . 

Symptoms since 5/2012 had initially made it impossible for her to work at all and, 

after slow improvement she remains limited to working roughly half that. 

Although physically she need only sit and hold her head up, use the mouse and 

keyboard and spend minimal time walking or standing, these activities are very 

physically demanding on a person who does not tolerate being out of bed more 

than a handful of hours on many days of the week. Her conditions prevent her 

from even washing her hair on some days[,] and limits the hours that she can 

spend in even an upright seated position. If she were asked to work 24 hours or 

more each week as she was doing prior to her crash in May 2012, she would be at 

serious risk of suffering another severe flare of her chronic fatigue syndrome 

symptoms and this would make it impossible for her to do any work at all. It 

remains a goal that she be able to return to a level of work tolerance such that she 

could work 24 or more hours a week. However, in order to avoid another crash, 

she has, under my direction, tried to titrate the tolerable amount of work, 

balancing this with the minimum demands of her job as carefully as possible. 

I am aware and have read a copy of the definition of disability published in her 

long-term disability policy and I believe she is disabled on the basis of this 

definition. [Laurie] is unable to work her part-time schedule let alone her fulltime schedule which is one of the Material Duties of Regular Occupation 

described. She has certainly been disabled according to this definition since her 

crash in May 2012. From my observation, it is not for lack of trying that she is 

unable to work these hours, it is due to her physical condition. 

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AR 1254–55. 

B. Sarah Schmit, R.N. (Nurse paper reviews) 

Laurie’s medical history was first reviewed by United’s in-house Nurse Case Manager, 

Sarah Schmit, R.N., on July 16, 2012. Nurse Schmit ultimately conducted three paper reviews of 

Laurie’s file. The second and third reviews were held in September and November of 2012. AR 

1473, 1492, 1495. 

In her final paper review, Nurse Schmit concluded that there were no tests or physical 

findings to corroborate Laurie’s complaints and that she was able to work her “regular schedule”: 

As per the [Attending Physician Statement] by Dr. Thomas Karsten[sic] MD 

Family Practice dated 9/21/12 states the claimant has symptoms of severe fatigue 

daily weakness associated with shaking hands, increased heart rate with minimal 

exertion (sitting upright), lightheadedness, decreased concentration. Severity 

varies from 1/10-9/10 depending on duration of activity and depending on the 

day. Other diagnosis[sic] have been excluded by multiple negative test results. 

No physical findings other than subjective complaints. Diagnosis has been 

confirmed by several experts. 

. . . . 

Available documentation does not provide a description of impairment that would 

preclude the claimant from working her regular schedule. 

AR 1495–96. 

C. Jerome Siegel, M.D. (Physician paper review) 

In June 2013, Jerome Siegel, M.D., board certified in internal medicine and occupational 

medicine, conducted a paper review of Laurie’s file. Dr. Siegel found there “is no information 

that supports symptom magnification, exaggeration, or secondary gain.” AR 0161. 

Dr. Siegel recognized that Laurie has had “waxing and waning energy and stamina” and 

at times reported feeling exhausted and barely able to perform activities of daily living. AR 

0158–59. Dr. Siegel concluded that Laurie’s subjective complaints outweighed any “objective” 

medical evidence, and opined that she could work at least part time up to five hours a day: 

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Despite these multiple subjective complaints, there is no indication that any 

clinician including Dr. Kasten has had to order any visiting nurse or homecare 

services including chore services, meal preparation, home health aide services, or 

transportation services. There is no indication that she has been seen or evaluated 

by a neurologist, psychiatrist, psychologist, or undergone any neuropsychological 

evaluation to evaluate any cognitive deficiencies. 

. . . . 

There is no indication in the Ms. Laurie has been hospitalized or required any 

inpatient evaluation during the extended period of time that she has been out of 

work. There is also no indication that she has required frequent office visits or 

emergency room evaluations during the time that she has been out of work. She 

has otherwise been noted to be medically stable with subjective complaints that 

far outweigh any objective physical examination or laboratory abnormalities. 

Given this, it is unclear why she would be unable to perform at least part-time 

work activities up to 5 hours during the day. Similarly it is unclear why she 

would have been unable to leave her house or take daily walks as part of a home 

exercise program to improve her overall stamina and endurance. There is no 

exercise stress test ordered or performed to quantitate the claimant’s stamina, 

endurance, or fitness level. 

. . . . 

Dr. Kasten had also implied that Ms. Laurie had an unpredictable course with her 

chronic symptomatology. This is primarily subjective and not directly 

corroborated by any clinician, specialist, rehabilitation specialist, physical 

therapist, or occupational therapist. It is unclear why she would not have been 

able to perform at least a few hours per day of meaningful and productive work 

activities given the job description reviewed. Although Ms. Laurie has had 

subjective complaints of sleep, fatigue, and cognitive complaints, there is no 

indication that her clinicians including Dr. Kasten had restricted her ability to do 

driving activities. 

AR 0158–59. 

Dr. Siegel recognized that the medical records showed that Laurie missed an intermittent 

one to two days off from work, which required reduced hours on following days, and that some 

flexibility in modifying her schedule could be supported: 

She may have required an intermittent one to two days to be out of work. She 

may have also required an intermittent 1-2 days to decrease her hours from an 

average of 4-5 hours per day to less hours such as 1-2 hours on a particular day 

based on her symptomatology or flare of chronic fatigue complaints. There is no 

support for extended restriction of hours, days, weeks, or months in which she 

would have been unable to perform the listed work activities in the job 

description. Some consideration and flexibility in modifying her work schedule 

by 1-2 hours per day or leaving early from work could be supported on the basis 

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15 – FINDINGS AND RECOMMENDATIONS 

of the chronicity of her symptoms, recent flare of symptoms in May, 2012, and 

history of chronic fatigue syndrome. 

AR 0160. 

Dr. Siegel also stated there was no indication Laurie had undergone an evaluation by a 

rheumatologist, when in fact, she had seen a rheumatologist, Dr. Ghandler, in 2004. AR 0159, 

0166, 0176. 

D. Richard Kolbell, Ph.D. (Neuropsychological IME) 

Richard Kolbell, Ph.D., is Board Certified in Clinical Neuropsychology. AR 0753. Dr. 

Kolbell conducted an in-person, independent neuropsychological evaluation of Laurie on July 

22, 2014. AR 0740. Dr. Kolbell’s report spans 12 pages. He dedicates 3 pages to summarizing 

Laurie’s medical history, the next 4.5 pages discussing his forensic interview, the next 3 pages 

discussing his findings, and then concludes by answering questions raised in United’s referral 

letter. Dr. Kolbell used multiple measures to test Laurie’s verbal comprehension, perceptual 

reasoning, working memory, processing speed, full-scale IQ, and general intellectual ability. AR 

0748–49. Dr. Kolbell used these test results to assess Laurie’s attention, concentration, tracking, 

memory and new learning, language, visuoperceptual/constructional function, conceptual 

formation and reasoning, and psychological abilities. AR 0749–51. 

 Dr. Kolbell reported: 

Based on the results of the current examination, I find no evidence of any 

diagnosable psychological or neuropsychological condition. Examinee is a very 

pleasant fifty-two year-old CPA with a long history and well-documented medical 

record indicating chronic fatigue syndrome. 

. . . . 

There have been subjective reports of “brain fog," although mental status 

examinations have been entirely within normal limits, and neurodiagnostic studies 

were also reported as normal. Thus, there is no evidence from the medical record 

that the examinee met criteria for diagnosis of depression, anxiety, neurocognitive 

disorder, or any other psychological diagnoses. She has been involved in 

counseling, which reportedly focused chiefly on marital communication, stress 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 15 of 41
16 – FINDINGS AND RECOMMENDATIONS 

management in dealing with her teenage son, and managing her sleep hygiene; 

there are no records of any treatment of depression, anxiety, or any other specific 

mental health condition. 

. . . . 

There were no signs of any cognitive disorder or deficits during the extensive 

interview and neuropsychological testing. [Laurie] was able to remain on task 

and focused and responded appropriately throughout the interview and all aspects 

of testing. There was no evidence of symptom exaggeration or sub-optimal 

performance and effort on any measures, and she provided a valid exam. She is 

extremely bright, and there are no signs of cognitive deficits: 

neuropsychologically, she is fully intact. On psychological measures, there is 

evidence that she tends to be somewhat perfectionistic and stress-reactive 

physically, in that she may experience an increase in physical symptoms in 

response to psychological or environmental stressors. However there is no 

evidence that these rise to the level of a frankly diagnosable conditions such as 

anxiety disorders or somatoform disorder. 

. . . . 

[T]here are no patent neuropsychological deficits or psychological conditions that 

patently impair her abilities to perform daily activities. She completed a seven 

hour neuropsychological evaluation, with no decline in test performance 

throughout the course of the current examination. 

. . . . 

There are no inconsistencies within the medical record or between the medical 

record and the current examination with respect to her psychological and 

neuropsychological functioning. 

AR 0751–53. 

E. Tanya Lumpkins, M.D. (Physician paper review) 

Tanya Lumpkins, M.D., is board certified in rheumatology and internal medicine. AR 

0753. Dr. Lumpkins conducted a paper review of Laurie’s medical records and attendant 

documents on September 2, 2014. This was United’s final medical consultation. Dr. Lumpkins 

noted that the diagnosis of CFS is based on subjective reports, and that “objective support for 

subjective complaints is not generally seen in CFS”: 

Chronic fatigue syndrome is a complicated disorder characterized by extreme 

fatigue that can’t be explained by any underlying medical condition. The fatigue 

may worsen with physical or mental activity, but doesn’t improve with rest 

. . . . 

There’s no single test to confirm a diagnosis of chronic fatigue syndrome. You 

may need a variety of medical tests to rule out other health problems that have 

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17 – FINDINGS AND RECOMMENDATIONS 

similar symptoms. The diagnosis of CFS is based on subjective reports and the 

treatment tor her fatigue has been consistent with the medical community for 

chronic fatigue. Objective support for subjective complaints is not generally seen 

in CFS. [Laurie’s] fatigue has been noted consistently throughout the timeframe 

in question. . . . 

AR 0729. 

Dr. Lumpkins noted the results of Dr. Kolbell’s neurological testing: 

Examinee is able to perform all daily activities, including routine or low-stress 

activities to more complicated and difficult tasks with no interference from a 

purely psychological and/or neuropsychological standpoint. She reportedly is no 

longer able to do several activities that she previously enjoyed . . . due to fatigue. 

She described her limitations in these activities as solely related to her fatigue. 

She reportedly makes errors in some complex accounting tasks, and she becomes 

fatigued when she exceeds a 4 hour per day work day. However, there are no 

patent neuropsychological deficits or psychological conditions that patently 

impaired her ability to perform daily activities. She completed a seven hour 

neuropsychological evaluation, with no decline in test performance throughout the 

course of the current examination. 

AR 0752–53. She concluded that Laurie’s claim of disability was not “objectively” supported: 

It is this reviewer’s opinion that the recommendation that the claimant be 

considered totally disabled is not supported by the medical record. It is noted 

within the medical record that the claimant has been indeed working although on 

a part-time basis. She has both the cognitive and physical capacity to work. It 

has not been objectively supported that she is unable to do so as she self reports 

that she has continued to work during the timeframe in question. . . . The self 

reported function is the best support that the claimant is not totally disabled as she 

has been working in a part-time capacity. 

AR 0731. 

2. United’s Denial Letters 

United first denied Laurie’s claim for STD benefits in November 2012. AR 0401. 

United listed the Plan terms (AR 0401), explained the criteria used to make the disability 

determination (AR 0401–02), listed the information used to make the determination (AR 0402), 

explained the Department of Labor’s definition of sedentary work (Id.), and summarized 

Laurie’s doctor visits, doctors’ notes, and Dr. Kasten’s physician statement (AR 0402–04). 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 17 of 41
18 – FINDINGS AND RECOMMENDATIONS 

United concluded that “based on the medical documentation that we received, you would be 

capable of frequently lifting small objects weighing less than 10 pounds and can sit for 6 hours in 

an 8-hour day. Therefore, no benefits are payable, and your claim has been denied.” AR 0402. 

In its August 2013 letter denying Laurie’s appeal for STD benefits, the claims manager 

included Nurse Schmit and Dr. Siegel’s paper reviews in the information it considered in making 

the disability determination. AR 108. As in the first letter, the claims manager summarized the 

medical record, omitting any reference to Nurse Schmit’s findings, but including Dr. Siegel’s 

findings: 

Despite these multiple subjective complaints, there is no indication any clinician 

has had to order any visiting nurse or homecare services. She is noted to be 

medically stable with subjective complaints that far outweigh any objective 

physical examination or laboratory abnormalities. Ms. Laurie should have been 

physically capable of at least part-time sedentary to light physical demand work 

from May 6, 2012, forward. She may have required an intermittent one to two 

days to be out of work and an intermittent decrease in her hours based on her 

symptomatology on a given day. 

AR0110–11. United again concluded: “In summary, there is no medical support for restrictions 

and limitations that would prevent Ms. Laurie from performing the material duties of her regular 

job.” AR0111. 

United denied Laurie’s claim for LTD benefits in March 2014. No additional medical 

providers had reviewed Laurie’s file since the denial of her appeal for STD benefits. The only 

additional material that had been submitted was another letter from Dr. Kasten restating his 

opinion that Laurie could not work more than part time. United concluded: 

In summary, the information that we received, including a review from Dr. Siegel 

which opined that there was no support for extended restriction of hours, days, 

weeks or months in which she would have been unable to perform work activities, 

fails to substantiate the basis for restrictions and limitations that preclude her from 

performing the Material Duties of her Regular Occupation as a Tax Principal. 

AR 0949. 

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19 – FINDINGS AND RECOMMENDATIONS 

In July 2014, almost four months after initially denying Laurie’s LTD claim, United 

ordered an independent neuropsychological evaluation by Dr. Kolbell. Two months later, Dr. 

Lumpkins performed an additional paper review. United issued a final denial letter on 

September 16, 2014: 

Based upon his evaluation Dr. Kolbell, opined that Ms. Laurie was able to 

perform all of her activities of daily living including routine or low-stress 

activities to more complicated and difficult tasks with no interference from a 

psychological and/or neuropsychological standpoint. Ms. Laurie reported having 

difficulties in her activities due to her fatigue. However, Dr. Kolbell determined 

that there were no neuropsychological deficits or psychological conditions that 

would impair her abilities to perform tasks. Ms. Laurie was capable of 

completing a seven-hour neuropsychological evaluation with no decline in test 

performance throughout. 

. . . . 

Dr. Lumpkins opined that the assertion of Ms. Laurie being totally disabled is not 

supported by the medical records. Dr. Lumpkins determined that Ms. Laurie has 

both the cognitive and physical capacity to work. Furthermore, Ms. Laurie has 

admitted to working on a part-time basis. 

AR 0703–04. 

FINDINGS 

I. Standard of Review – Abuse of Discretion 

Initially, this court must determine the applicable standard of review to evaluate United’s 

decision to deny Laurie’s claims. In the Ninth Circuit, “unless plan documents unambiguously 

say in sum or substance that the Plan Administrator or fiduciary has authority, power, or 

discretion to determine eligibility or to construe the terms of the plan, the standard of review will 

be de novo.” Sandy v. Reliance Standard Ins. Co., 222 F.3d 1202, 1207 (9th Cir. 2000); Stephan 

v. Unum Life Ins. Co. of Am., 697 F.3d 917, 923 (9th Cir. 2012) (citing Metro. Life Ins. Co. v. 

Glenn, 554 U.S. 105, 113 (2008)). Otherwise, the standard of review is for abuse of discretion.3

 

 

3

 Where the abuse-of-discretion standard applies in an ERISA-benefits-denial case, a motion for 

summary judgment is merely the conduit to bring the legal question before the district court and 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 19 of 41
20 – FINDINGS AND RECOMMENDATIONS 

Stephan, 697 F.3d at 929 (citing Glenn, 554 U.S. at 113). Here, the parties agree that the 

standard of review is for abuse of discretion. 

Under the abuse-of-discretion standard, an ERISA plan administrator’s decision “will not 

be disturbed if reasonable.” Conkright v. Frommert, 559 U.S. 506, 521 (2010). The plan 

administrator’s decision will be upheld unless it is “(1) illogical, (2) implausible, or (3) without 

support in inferences that may be drawn from the facts in the record.” Salomaa v. Honda Long 

Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011). “[E]ven decisions directly contrary to 

evidence in the record do not necessarily amount to an abuse of discretion. An ERISA 

administrator abuses its discretion only if it (1) renders a decision without explanation, (2) 

construes provisions of the plan in a way that conflicts with the plain language of the plan, or (3) 

relies on clearly erroneous findings of fact.” Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. 

Plan, 410 F.3d 1173, 1178 (9th Cir. 2005) (internal quotations and citations omitted). 

 The abuse-of-discretion standard of review “does not permit the overturning of a decision 

where there is substantial evidence to support the decision, that is, where there is ‘relevant 

evidence [that] reasonable minds might accept as adequate to support a conclusion even if it is 

possible to draw two inconsistent conclusions from the evidence.” Roth v. Prudential Ins. Co. of 

Am., 752 F. Supp. 2d 1160, 1165 (D. Or. 2010) (quoting Snow v. Standard Ins. Co., 87 F.3d 327, 

332 (9th Cir. 1996) (en banc). “Even if the court disagrees with the ultimate decision, deference 

must be given to the administrator unless it is clearly unreasonable.” McCloud v. Hartford Life 

& Acc. Ins. Co., 910 F. Supp. 2d 1226, 1230–33 (D. Or. 2012). 

“The court must consider numerous case-specific factors . . . and reach a decision as to 

whether discretion has been abused by weighing and balancing those factors together.” Montour 

 

the usual tests of summary judgment, such as whether a genuine dispute of material fact exists, 

do not apply. Stephan v. Unum Life Ins. Co. of Am., 697 F.3d 917, 929 (9th Cir. 2012). 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 20 of 41
21 – FINDINGS AND RECOMMENDATIONS 

v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 630 (9th Cir. 2009) (citing Glenn, 554 U.S. 

at 116). Factors that “frequently arise” in ERISA cases include: (1) the quality and quantity of 

medical evidence; (2) whether the plan administrator subjected the claimant to an in-person 

medical evaluation or merely relied on a paper review of the claimant’s existing medical records; 

(3) whether the administrator provided its independent experts with all of the relevant evidence; 

and (4) as applicable, whether the administrator considered a contrary Social Security 

Administration (“SSA”) disability determination. Id. at 630. Courts are directed to “reach a 

decision as to whether discretion has been abused by weighing and balancing [the] factors.” Id.

In this case, the relevant factors are: 1) United’s structural conflict of interest, 2) the 

quantity and quality of the medical evidence, including the extent to which United conducted 

paper reviews, 3) whether United discounted or ignored Laurie’s subjective complaints, 4) 

whether United imported an objective evidence requirement into the Plan, and 5) whether 

United’s Plan interpretation is consistent with the Plan’s clear language. When the above factors 

are considered, United’s decisions to deny Laurie STD and LTD benefits were clearly 

unreasonable, and therefore an abuse of discretion. 

1. Structural Conflict of Interest 

Where the “same entity that funds an ERISA benefits plan also evaluates claims, . . . the 

plan administrator faces a structural conflict of interest. . . .” Montour, 588 F.3d at 630. The 

administrator is subject to the conflicting incentives of approving benefits to deserving plan 

participants as well as to paying as little in benefits as possible to preserve its coffers. Abatie v. 

Alta Health & Life Ins. Co., 458 F.3d 955, 965–66 (9th Cir. 2006). In that event, “the conflict 

must be weighed as a factor in determining whether there was an abuse of discretion.” Id. at 965 

(citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). Importantly, however, 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 21 of 41
22 – FINDINGS AND RECOMMENDATIONS 

this “does not convert abuse of discretion review into de novo review.” Salomaa, 642 F.3d at 

674 (citing Glenn, 554 U.S. at 113). Therefore, the court must decide the appropriate weight, if 

any, to be given to United’s structural conflict of interest. 

The decision is “something akin to a credibility determination about the . . . plan 

administrator’s reason for denying coverage under a particular plan and a particular set of 

medical and other records.” Id. at 969. “If those facts and circumstances indicate the conflict 

may have tainted the entire administrative decision-making process, the court should review the 

administrator’s stated bases for its decision with enhanced skepticism: This is functionally 

equivalent to assigning greater weight to the conflict of interest as a factor in the overall analysis 

of whether an abuse of discretion occurred.” Montour, 588 F.3d at 631. “An egregious conflict 

may weigh more heavily (that is, may cause the court to find an abuse of discretion more readily) 

than a minor, technical conflict might.” Id. at 968. “The level of skepticism . . . may be low if a 

structural conflict of interest is unaccompanied, for example, by any evidence of malice, of selfdealing, or of a parsimonious claims-granting history. Abatie, 458 F.3d at 968. 

Common examples of evidence that the administrator’s conflict permeated the claims 

decision include when an administrator has given “‘inconsistent reasons for denial,’ has failed 

‘adequately to investigate a claim or ask the plaintiff for necessary evidence,’ has failed to credit 

a claimant’s reliable evidence,’ or has ‘repeatedly denied benefits to deserving participants by 

interpreting plan terms incorrectly.’” Abatie, 458 F.3d at 969–70. “Where . . . an insurer has 

‘taken active steps to reduce potential bias and to promote accuracy,’ the conflict may be given 

minimal weight in reviewing the insurer’s benefits decisions. Stephan, 697 F.3d at 929 (citing 

Glenn, 554 U.S. at 117). 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 22 of 41
23 – FINDINGS AND RECOMMENDATIONS 

Here, United is both the administrator and the underwriter of the Plan. Both the STD and 

LTD policies expressly and unambiguously confer discretionary authority on United: 

The Policyholder has delegated to Us the discretion to determine 

eligibility for benefits and to construe and interpret all terms and 

provisions of the Policy. Benefits under the Policy will be paid 

only if We decide, after exercising Our discretion, that the Insured 

Person is entitled to them. 

AR at 0006, 0677. Therefore, United operates under the inherent conflict of interest identified in 

Abatie when it evaluates claims from participants such as Laurie. 

Laurie asserts that an enhanced level of skepticism is warranted. She quotes the five 

factors4

 in Collins v. Liberty Life Assur. Co. of Boston, 988 F. Supp. 2d 1105, 1127 (C.D. Cal. 

2013), and claims that four are present here. Laurie’s Motion for Summary Judgment, ECF #34, 

at 30–31. However, Laurie does not identify what those four factors are or elaborate on how any 

bias warrants heightened scrutiny in this case. Furthermore, United contends that it produced 

over 2,100 pages of discovery on the issue of conflict of interest (in response to Laurie’s 35 

requests for production), yet Laurie has submitted no documents suggesting a bias to the court. 

United’s Motion for Summary Judgement and Response to Laurie’s Motion for Summary 

Judgment, ECF #36, at 18. 

There is no evidence of malice, self-dealing, or of a lack of parsimonious claims-granting 

history that would compel this court to view United’s decision with the highest level of scrutiny. 

 

4

 The Collins court compiled a non-exhaustive list of factors to consider when determining the 

appropriate amount of deference to give to a Plan administrator’s decision to deny disability 

benefits, citing Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 875 (9th 

Cir. 2008) and Montour, 588 F.3d at 635. Collins v. Liberty Life Assur. Co. of Boston, 988 F. 

Supp. 2d 1105, 1127 (C.D. Cal. 2013) ((1) ignored self-reports that are inherently subjective and 

not easily determined by objective measurement; (2) had a meaningful dialogue with claimant in 

deciding whether to approve the benefits claim; (3) spoke with claimant’s doctors without 

notifying claimant, (4) took claimant’s doctors' statements out of context or otherwise distorted 

them, or (5) conducted a “pure paper” review). 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 23 of 41
24 – FINDINGS AND RECOMMENDATIONS 

Accordingly, the level of skepticism with which the court should view United’s structural 

conflict of interest should be low. 

2. Quantity and Quality of Medical Evidence 

On balance, the quantity and quality of medical evidence weigh toward finding United 

abused its discretion. United argues that it could not have abused its discretion because it relied 

on substantial evidence to deny Laurie’s claims, specifically: “(1) four medical reviews 

performed by two RNs; (2) independent medical records reviews performed by two MDs, both 

of whom were board certified in appropriate medical specialties; and (3) a thorough IME 

[(independent medical exam)] performed by an independent and qualified neuropsychologist.” 

ECF #50, at 6–7. First, while the nurses’ medical reviews support the position that Laurie is not 

disabled, registered nurses are not board certified in the appropriate medical specialties and are 

thus not qualified to diagnose or prescribe treatment for CFS. Second, while Dr. Siegel and Dr. 

Lumpkins have the required credentials, they conducted only a paper review and United failed to 

obtain an in-person examination by an appropriate specialist. Finally, while Dr. Kolbell is a 

qualified neuropsychologist, his IME test results do not refute Laurie’s subjective symptoms of 

fatigue. 

United is required to consult health care professionals with the appropriate training and 

experience. 29 CFR 2560.503–1(h)(3)(iii) (“the appropriate named fiduciary shall consult with a 

health care professional who has appropriate training and experience in the field of medicine 

involved in the medical judgment”). However, United first relied exclusively on Nurse Schmit’s 

medical judgment to deny Laurie’s claim for STD benefits. AR 0081–86, 0401–05. Later, when 

denying Laurie’s appeal for STD benefits, United relied again on Nurse Schmit’s paper review, 

and on an additional paper review by Nurse Cortese, R.N. AR 1481–85. Registered nurses are 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 24 of 41
25 – FINDINGS AND RECOMMENDATIONS 

not board certified physicians and are in no position to diagnose or prescribe treatment for CFS. 

Nurses “accept and implement orders for client care from licensed health care professionals who 

are authorized . . . to independently diagnose and treat” patients, but they do not write the orders 

themselves. OAR 851-045-0040 (6)(a). Moreover, nurse opinions are not acceptable medical 

sources in the analogous Social Security disability context. 20 CFR 404.1513(d)(1) (listing 

medical opinions of nurse practitioners, a type of nurse with more training and education than a 

registered nurse, as a non-acceptable medical source). This is not to say that a nurse’s medical 

opinion is irrelevant. Indeed, courts have cited 20 CFR 404.1513 for the notion that testimony 

by even family and friends may constitute “competent evidence” and courts may consider it. 

E.g., Jahn-Derian v. Metro. Life Ins. Co., 13-cv-7221-FMO, 2016 WL 1355625, at *10 (C.D. 

Cal. Mar. 31, 2016). However, United fails to explain or justify why it gave more weight to the 

medical opinions of nurses obtained by paper reviews than the medical opinion of Laurie’s 

treating physician when those opinions directly contradict each other. This weighs toward abuse 

of discretion. 

With respect to Dr. Siegel and Dr. Lumpkins’ paper reviews, a paper review by itself 

does not necessarily constitute an abuse of discretion. See Corby v. Unum Life Ins. Co. of Am., 

2010 WL 3768040 at *6 (N.D. Cal. Sep. 21, 2010) (“The ‘pure paper’ review by itself does not 

constitute an abuse of discretion.”). However, “one factor that courts consider when determining 

if a plan administrator abused its discretion, particularly in cases where the administrator has a 

conflict of interest, is whether the plan administrator conducted only a paper review of the 

claimant’s file.” Robertson v. Stand. Ins. Co., 139 F. Supp. 3d 1190, 1204 (D. Or. 2015); see 

also Eisner v. The Prudential Ins. Co. of Am., 10 F. Supp. 3d 1104, 1115 (N.D. Cal. 2014) 

(“Prudential’s internal file review and two independent medical reviews suffer from several 

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26 – FINDINGS AND RECOMMENDATIONS 

deficiencies that require the Court to give them less weight than Plaintiff’s medical evidence. 

Most importantly, as in Salomaa, none of Prudential’s consultants examined Plaintiff—although 

they could have.”). 

 “[T]here are circumstances under which a plan administrator should conduct an IME.” 

Id. at 1207 (citing Petrusich v. Unum Life Ins. Co. of Am., 984 F. Supp. 2d 1112, 1123 (D. Or. 

2013). “[W]here there [is] sufficient evidence in the record to support [a claimant’s] contentions, 

including the opinions of her treating physicians,” the insurance company has “a fiduciary duty 

to engage in a meaningful dialogue with [her] and to request an IME or whatever additional 

evidence it deemed necessary to confirm or to deny [her] assertion of cognitive impairment.” 

Petrusich, 984 F. Supp. 2d at 1123. When it does not, the court questions whether the insurance 

company has chosen “to avoid an independent medical examination because of the risk that the 

physicians it employs may conclude that the claimant is entitled to benefits.” Salomaa, 642 F.3d 

at 676. “The skepticism [the court] is required to apply because of the plan’s conflict of interests 

requires [it] to consider this possibility[.]” Id.

Here, there is sufficient evidence in the record, including the opinion of Laurie’s longtreating physician, Dr. Kasten, to support her contention that she is disabled. Courts “routinely 

weigh” records of treating physicians “more heavily than they do reports and file reviews from 

paid consultants who never examine the claimant or talk to the claimant’s treating physicians.” 

Eisner, 10 F. Supp. 3d at 1115. Moreover, where the diagnosis, such as CFS in this case, is 

based on subjective symptoms, it “can be evaluated more fully through an actual examination 

than by a mere review of a patient’s medical record.” Heinrich v. Prudential Ins. Co. of Am., 

No. 04–cv–02943–JF, 2005 WL 1868179, at *8 (N.D.Cal. July 29, 2005) (“[T]he failure of 

Prudential's physicians to perform their own examinations of Heinrich entitles their opinions to 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 26 of 41
27 – FINDINGS AND RECOMMENDATIONS 

less weight, because fibromyalgia produces symptoms that must be reported by the patient to the 

physician.”). Under the circumstances, United should have had a board certified rheumatologist 

perform an IME to help determine the veracity of Laurie’s self-reported symptoms. 

United argues it did exactly what it should have, specifically it retained an IME to answer 

the question of whether Laurie’s CFS compromises her ability to perform the mental aspects of 

her job. United’s Reply in Support of its Motion for Summary Judgment, ECF #50, at 10. 

United argues that Dr. Kasten’s medical opinion left an open question when he wrote “Laurie’s 

mental and intellectual capacity has not been fully tested but it makes sense that her fatigue 

prevents her from being able to concentrate and attend to her work in a continuous fashion as is 

necessitated by the tasks for which she is responsible.” Id.; AR 0245–46. United contends that 

Dr. Kolbell’s report answered that question in the negative. 

Dr. Kolbell’s report, however, is limited to psychological and neuropsychological 

functioning and does not contradict Dr. Kasten’s medical reports documenting Laurie’s fatigue. 

Specifically, Dr. Kolbell noted: “There are no inconsistencies within the medical record or 

between the medical record and the current examination with respect to her psychological and 

neuropsychological functioning.” AR 0753. 

Moreover, Laurie does not contend that she cannot work full time because of depression, 

anxiety, a neurocognitive disorder, or any other neuropsychological condition—the disorders Dr. 

Kolbell’s IME ruled out. She argues that she cannot work full time because of the fatigue caused 

by her CFS. Laurie does not claim that she always experiences brain fog or that she can never 

meet the mental demands of her job; she contends that she experiences these symptoms when she 

is fatigued. These subtle but important distinctions must be accounted for. 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 27 of 41
28 – FINDINGS AND RECOMMENDATIONS 

United heavily relies on the fact that Laurie was able to complete a seven-hour 

examination with no decline in test performance to show she can work full time. ECF #36, at 8, 

14, 15; ECF #50, at 2, 10, 12. However, as United’s own expert, Dr. Siegel, recognized, 

Laurie’s CFS symptoms “wax and wane.” AR 0158. The significance of one good day cannot 

reasonably be extrapolated to every other day, especially when exertion on one day leads to an 

exacerbation of symptoms on following days. See Medical Opinion of Dr. Kasten, AR 245–46, 

0235, 1110–11, 1254–55. Even Dr. Siegel and Dr. Lumpkins’ reports provide support for 

Laurie’s claim that pushing herself one day leads to an exacerbation of symptoms on subsequent 

days. AR 0160, 0731.5

 The evidence does not support the conclusion that Laurie can 

consistently work 24 hours a week, but, rather, refutes it. 

Further, the demands of a neuropsychological IME may or may not be similar to the 

demands of Laurie’s work as a tax principal. The inference that, because Laurie was able to 

complete a seven-hour neuropsychological examination with no decline in test performance, she 

can handle complex tax matters 24 hours per week, every week—the crux of United’s position—

is too weak to reasonably be considered substantial evidence. 

In summary, the quantity of medical evidence is lacking in that no physician board 

certified in rheumatology or internal medicine conducted an IME and United relied on paper 

reviews by registered nurses to deny the claims, and the quality of medical evidence is lacking in 

that the IME that was conducted by Dr. Korbell addressed the wrong issues. 

/// 

 

5

 Dr. Siegel recognized that Laurie missed an intermittent one to two days off from work and was 

was able to work only reduced hours on following days. AR 160. Dr. Lumpkins stated that “the 

diagnosis of CFS is based on subjective reports,” that the fatigue “may worsen with physical or 

mental activity, but doesn’t improve with rest,” and that Laurie has repeatedly reported her 

symptoms worsen after exerting herself. AR 0722–23, 0729. 

Case 3:14-cv-01937-YY Document 60 Filed 01/23/17 Page 28 of 41
29 – FINDINGS AND RECOMMENDATIONS 

3. United discounted and ignored Laurie’s subjective complaints 

United abused its discretion by discounting and ignoring Laurie’s subjective complaints, 

even though her treating physician’s opinion credited and her colleagues’ letters corroborated 

those complaints. 

A. Subjective Complaints 

CFS is defined as a “self-reported persistent or relapsing fatigue lasting six or more 

consecutive months.” Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998) (citing Centers for 

Disease Control, The Chronic Fatigue Syndrome: A Comprehensive Approach to its Definition 

and Study, 121 ANNALS OF INTERNAL MED. 954 (1994)). It is a “complicated disorder 

characterized by extreme fatigue that can’t be explained by any underlying medical condition.” 

AR 729. “The cause of chronic fatigue is unknown, although there are many theories—ranging 

from viral infections to psychological stress. Some experts believe chronic fatigue syndrome 

might be triggered by a combination of factors.” Id. 

“There is no blood test or other objective laboratory test for chronic fatigue syndrome.” 

Salomaa, 642 F.3d at 677. The condition “does not have a generally accepted ‘dipstick’ test.” 

Id. Rather, one uses a “variety of medical tests to rule out other health problems that have 

similar symptoms.” AR 0729. The diagnosis of CFS is therefore based on subjective reports. 

Id. “Objective support for subjective complaints is not generally seen in CFS.” Id. 

The lack of objective medical evidence in CFS cases creates the risk of false claims. 

Salomaa, 642 F.3d at 678. When a disability policy does not contain an exclusion for conditions 

based on subjective symptoms, such as CFS, the insurer “has taken on the risk of false claims for 

th[ese] difficult to diagnose condition[s].” Salomaa, 642 F.3d at 678. The insurer, however, has 

the same “financial incentive to cheat.” Id. Thus, “conditioning an award on the existence of 

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[objective] evidence that cannot exist is arbitrary and capricious.” Id. Instead, the insurer can 

only condition benefits upon evidence that the CFS symptoms have the effect of preventing a 

claimant from working. See Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 

869, 877 (9th Cir. 2004) (the administrator properly asked for evidence that the fibromyalgia she 

suffered from disabled her from working at her job); Maher v. Aetna Life Ins. Co., 186 F. Supp. 

3d 1117, 1129 (W.D. Wash. 2016) (insurer could not condition benefits on claimant’s subjective 

reports of pain but could condition benefits upon evidence that the pain had the effect of 

preventing claimant from working). 

Here, all three of United’s medical consultants concluded that Laurie was not magnifying 

or exaggerating her symptoms or motivated by secondary gain. AR 0161, 0729, 0751. United’s 

denial letters, however, do not explain why it rejected Laurie’s subjective symptoms. Instead, 

United made conclusory statements such as that Laurie was not disabled “based on the medical 

documentation” or that “there is no medical support for restrictions and limitations that would 

prevent [her] from performing the material duties of her regular job.” AR 0111, 0404. United 

abused its discretion by failing to address Laurie’s subjective complaints. 

B. Letters from Colleagues and Friends 

In addition to discounting or ignoring Laurie’s subjective complaints, United also 

discounted or ignored evidence corroborating those complaints, i.e., letters from her colleagues 

and friends. It is clear that courts may consider letters that are part of the record in their abuseof-discretion analysis. See, e.g., Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 905 (9th Cir. 

2016) (insurer abused its discretion in rejecting claimant’s subjective complaints, which were 

corroborated by a friend); May v. Metro. Life Ins. Co., 03-cv-5056-CW, 2004 WL 2011460, at *7 

(N.D. Cal. Sept. 9, 2004) (discussing how reports of the plaintiff’s colleagues describing the 

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claimant’s ability to work were consistent with the claimant’s described symptoms); Mason v. 

Fed. Express Corp., 165 F. Supp. 3d 832, 860 (D. Alaska 2016) (weighing as a factor in abuseof-discretion analysis how a plan administrator failed to consider correspondence with the 

claimant’s former supervisor, the only evidence in the record regarding the claimant’s actual 

performance). 

United cites Loughray v. Hartford Group Life Ins. Co. for the notion that it was not 

required to consider Laurie’s colleague letters in the review and denial of her claims. 366 Fed. 

Appx. 913, 913 (10th Cir. 2010) (unpublished). However, this court reads Loughray the same 

way it reads Demer, May, and Mason—that letters from colleagues and friends can be probative 

of the veracity of a claimant’s subjective complaints and can be considered as part of the 

administrative record and as a factor in whether the plan administrator abused its discretion. In 

Loughray, the court considered and discussed, but ultimately rejected the letters provided by the 

claimant’s colleagues. Id. at 923, 928. But this is not to say that the court did not consider them. 

In fact, one of the reasons the Loughray court rejected the letters was because the colleague’s 

statements “were not entirely consistent with the other evidence” in the plaintiff’s medical 

records. Id. at 928. 

Here, United and Dr. Lumpkins listed these letters as documents considered in their 

respective reviews of Laurie’s file. However, neither mentions them in their summaries of her 

file or discusses why the letters were not credited. AR 0702–06, 0721–33, 0943–55. 

Moreover, these letters are highly probative of the issue presented in this case: whether 

Laurie’s subjective CFS symptoms prevent her from working. Four of Laurie’s colleagues, a 

long-term friend, and her pastor all submitted letters corroborating the effects of her CFS. 

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William Hammerman, Director of Estate and Trust Services at Delap, described how 

Laurie’s area of specialty is “working with clients that have complex estate, gift and fiduciary 

income tax issues.” AR 1260. He described Laurie as a consummate team player with a Type A 

personality that led her to push herself too hard, resulting in her crash in 2012. Id. Since her 

crash, it is much more apparent when Laurie is having a good day versus having a bad day. Id. 

Hammerman explained that even with the accommodations to Laurie’s schedule and workload, 

she is still unable to work 24 hours per week as she had before the crash. Id. When Laurie 

pushes herself too hard to get a project done or meet a deadline, she tends to have a “mini-crash” 

that results in her not being able to work for one to two weeks. AR 1261. 

Delap’s Managing Partner, David Delap, also confirmed that Laurie worked on difficult 

estate tax returns that required proper and creative interpretation of wills and trusts in order to 

effectively represent her clients. AR 1263. Additionally, he observed that, although Laurie 

desired to return to the “career she loves,” she could not work 24 hours per week. Id. When she 

attempted to return to work, she suffered “a relapse where she cannot work at all”: 

After her crash[,] we do not know which Lynn will show up for work. Many days 

she lost all energy and alertness and was not able to perform at the level required 

to serve our clients at the level of accuracy, completeness and most importantly 

proper interpretation of will and trust narrative and the creative interpretation 

necessary to save our client’s money. Let alone the proper completion of difficult 

estate returns. . . . Her attempts to get back to 24 hours per week have not been 

without trying. . . . I believe with all my heart that Lynn desires to work as much 

as possible and return to the career she loves, one in which she is so talented. She 

is a true professional. However her CFS does not allow her to do this. Numerous 

attempts on her part to return to work of any significant amount . . . sends her into 

a relapse where she cannot work at all. 

Id. 

Jan Pailthorpe, another CPA colleague, described how, prior to her crash, Laurie’s 

“fatigue was observable from her body language and lack of stamina.” AR 1266. “Her facial 

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expression became very flat and her coloring paled. She would appear shaky and weak and 

could not stand for any length of time. She also became quieter, limiting her ability to discuss 

technical issues or have lengthy conversations with employees or clients.” Id. After the crash, 

her condition worsened and she was “demonstrably fatigued at the start of the day.” Id. She 

would “work one to two hours and could not manage to think clearly or articulate concepts.” Id. 

Pailthorpe described that Laurie’s “ability to work at her intellectually demanding job has 

been profoundly limited and restricted by her CFS symptoms.” Id. “She cannot work with any 

consistency or continuity, as she could prior to May 2012.” Id. On days she can work, she can 

only do so for an hour or two before she needs to rest. AR 1266–67. “Some days, she cannot 

work at all. If she pushes herself to work beyond her limits, her symptoms will flare up, putting 

her in bed for several days.” AR 1267. 

Finally, Martha Westfall, an administrative assistant who has known Laurie for 20 years, 

described how Laurie used to be vivacious and outgoing, but has not been able to recover from 

her crash in 2012. AR 1272. Laurie’s skin color “has faded to a greyish look,” and “her overall 

countenance is sad, tired, and worn out.” AR 1273. Westfall described Laurie as a “woman of 

principle” who would not take short cuts or cheat. Id. Despite her diagnosis, Laurie maintains a 

cheerful attitude and does not feel sorry for herself. Id. However, the last couple of years “has 

really taken the final toll,” and she “cannot work on a consistent basis.” Id.

Laurie’s colleagues at Delap work with her on a daily basis. They have seen her struggle 

with fatigue since her initial diagnosis and her subsequent crash. Their letters corroborate 

Laurie’s subjective complaints and, importantly, Dr. Kasten’s medical opinion over years of 

treatment. Without belaboring the point, the letters also corroborate Laurie’s inability to 

consistently work 24 hours per week, despite Delap’s accommodations. 

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Laurie also submitted a letter from Julie Southgate, a close friend of 14 years. Southgate 

described the effects of Laurie’s fatigue and her inability to work consistently: 

Due to her fatigue, Lynn was and still is unable to perform any household tasks 

such as cooking, cleaning, laundry, or grocery shopping. Her husband does all of 

these things for the family. She must rest frequently during the day. Also, even 

though she has very little social contact with others, she seems to catch every cold 

and flu virus. These frequent illnesses add to her fatigue. Lynn Laurie's ability to 

work at her intellectually demanding job has been profoundly limited and 

restricted by her CFS symptoms. She is only able to work on a much reduced 

schedule with the opportunity to stop, lie down and rest. She cannot work with 

any consistency or continuity. On days she can work, she can only do so for a 

time before she needs to stop and rest. Some days she cannot work at all. If she 

pushes herself to work beyond her limits, her symptoms will flare up, putting her 

in bed for long periods of time. 

AR 1270. 

Finally, Laurie submitted a letter from her pastor, Jack Smith, who has “prayed publicly 

and privately for her through years of medical treatment, watching her struggle to regain a 

measure of her former vitality.” AR 1275. Pastor Smith specifically described the effects of 

Laurie’s fatigue: 

I have observed her weakness and inability to summon the stamina for much of 

anything, including physical and mental tasks. She does not stand to sing with the 

congregation, and is often too weak to sing at all. If she tries to stay for fellowship 

after the morning service, she will often sit in a recliner from the nursery. The 

effort to be present Sunday morning uses up all her energy, and she is unable to 

return for the evening service.

Lynn wants very much to be well and to do what she was once able to do, but it is 

obvious to anyone associated with her that she cannot. 

Id.

While all these individuals—Laurie’s colleagues and friends—are not medical 

professionals and do not have the medical training necessary to provide a medical opinion 

regarding Laurie’s functional capacity, they are arguably in the best position to substantiate 

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35 – FINDINGS AND RECOMMENDATIONS 

Laurie’s subjective complaints. United should not have dismissed them without discussion, and 

it was an abuse of discretion to do so. 

4. United Imported an Objective Medical Evidence Requirement into the Plan 

United also abused its discretion to the extent it relied on an objective evidence 

requirement to deny Laurie’s claims because its STD and LTD Plans do not include such a 

requirement. As discussed above, the Ninth Circuit held in Salomaa that “conditioning an award 

on the existence of [objective] evidence that cannot exist” is unreasonable. 642 F.3d at 678. 

Like Laurie, the claimant in Salomaa had CFS, a “condition for which there are no objective 

tests.” Id. at 676. CFS is a diagnosis of exclusion. Dr. Lumpkins agreed when she included in 

her report that: 

[t]here's no single test to confirm a diagnosis of chronic fatigue syndrome. You 

may need a variety of medical tests to rule out other health problems that have 

similar symptoms. The diagnosis of CFS is based on subjective reports and the 

treatment tor her fatigue has been consistent with the medical community for 

chronic fatigue. 

AR 0729. 

The Salomaa plan administrator abused its discretion by requiring the claimant to present 

objective evidence of his diagnosis such as positive findings on x-rays and blood tests. 642 F.3d. 

at 679–80. Other district courts have found that plan administrators abused their discretion by 

relying on such requirements. See, e.g., Peterson v. AT&T Umbrella Benefit Plan No. 1, 2011 

WL 5882877, at * 26 (N.D. Cal. March 16, 2012) (“[T]o the extent the Plan relied on the 

absence of objective medical evidence of Plaintiff’s Chronic Fatigue Syndrome, it abused its 

discretion.”); Eisner v. Prudential Ins. Co. of Am., 10 F. Supp. 3d. 1104, 1117 (C.D. Cal. 2014) 

(discounting medical reviews by insurer’s nurse and doctor regarding CFS and fibromyalgia 

because they “demand diagnostic and clinical confirmation of a condition that cannot be 

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36 – FINDINGS AND RECOMMENDATIONS 

confirmed through such results”); Hertz v. Hartford Life and Acc. Ins. Co., 991 F. Supp. 2d 1121, 

1139 (D. Nev. 2014) (finding Hartford's “insistence on objective evidence” was “problematic 

because medical conditions such as chronic pain syndrome may not be amenable to objective 

verification”); Duncan v. Cont'l Cas. Co., No. 96–cv–2421–SI, 1997 WL 88374, at * 5 (N.D.Cal. 

Feb. 10, 1997) (Plan “may not deny [plaintiff's] claim because her physician cannot provide 

physiological proof where the physical condition is such that physiological proof is not 

available.”); Minton v. Deloitte & Touche USA LLP Plan, 631 F. Supp. 2d 1213, 1219 (N.D. Cal. 

2009) (“MetLife completely discounted the history of Plaintiff's condition, Plaintiff's subjective 

reports of pain and Dr. Hill's evaluation of Plaintiff's functional capacity. Instead, it relied 

exclusively on Dr. Payne's report, even though Dr. Payne had not examined Plaintiff or 

performed a functional capacity test on him, but instead rendered his opinion based on a lack of 

evidence that one would not expect to find in the first place.”). 

Here, Dr. Siegel specifically called for the sort of objective evidence Salomaa prohibited. 

He did so when he wrote that Laurie “has otherwise been noted to be medically stable with 

subjective complaints that far outweigh any objective physical examination or laboratory 

abnormalities,” and then again when he wrote “that Ms. Laurie had an unpredictable course with 

her chronic symptomatology . . . is primarily subjective and not directly corroborated by any 

clinician, specialist, rehabilitation specialist, physical therapist, or occupational therapist.” AR 

0158–59. United quoted these portions of Dr. Siegel’s text in denial letters to Laurie, 

incorporating the objective evidence requirement into its reasons for denial. See AR 0110–11. 

United’s other experts also improperly relied on objective evidence in discounting 

Laurie’s complaints. Nurse Schmit did so when she wrote “[o]ther diagnosis have been excluded 

by multiple negative test results. No physical findings other than subjective complaints. 

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37 – FINDINGS AND RECOMMENDATIONS 

Diagnosis has been confirmed by several experts,” and then proceeded to conclude that Laurie 

was not disabled.6 AR 1495–96. Dr. Lumpkins similarly concluded that Laurie’s claim of 

disability was not “objectively” supported. AR 731. 

Lastly, to the extent United relies on Dr. Kolbell’s IME results to deny Laurie’s claims— 

when it argues in its briefing that Dr. Kolbell’s IME is the “only comprehensive, objective 

testing of Laurie’s functional abilities” in the record (ECF #50, at 11)—United is again 

importing an objective medical evidence requirement into the Plans. Dr. Kolbell simply found 

that Laurie does not suffer from a mental health condition. The other 18 physicians who saw 

Laurie ruled out many other conditions to arrive at a CFS diagnosis; the opinions of United’s 

experts do not undermine Laurie’s subjective complaints of fatigue. 

5. United’s Plan Interpretation is Inconsistent with the Plan’s Clear Language 

The final factor is whether United’s interpretation of the Plan is inconsistent with the 

Plan’s clear language. A plan administrator abuses its discretion when it “construes provisions 

of the plan in a way that conflicts with the plain language of the plan.” Boyd, 410 F.3d at 1178, 

see also Montour, 588 F.34d at 630–31 (holding a plan administrator abused its discretion when 

it construed the language of a plan unreasonably). 

The STD and LTD Plans declare Laurie is entitled to benefits if she cannot work fulltime, that is, if she is unable to work 24 hours per week. ECF #36, at 13. United argues that Dr. 

Siegel, Dr. Kolbell, and Dr. Lumpkins’ medical opinions support the assertion that Laurie can 

 

6

 United argues it was reasonable for Nurse Schmit to conclude “the restrictions and limitations 

identified by Dr. Kasten in his reports were not corroborated and that, from a physical 

standpoint, Laurie is capable of performing sedentary work.” ECF #36, at 5; AR 0373. 

However, the phrase “from a physical perspective” is just another way of improperly importing 

an objective evidence requirement. 

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work 24 hours per week. ECF #36, at 13. United and its medical consultants, however, have 

misconstrued and misapplied the terms of the Plan. 

First, United disregards the limitations Dr. Siegel placed on the “five hours per day” 

figure and incorrectly extrapolates that figure to a full work week. United selectively quotes 

from Dr. Siegel’s report to support the assertion that he found Laurie was capable of working 25 

hours per week. ECF #36, at 2, 13. Dr. Siegel wrote that “it is unclear why [Laurie] would be 

unable to perform at least part-time work activities up to 5 hours during the day.” AR 0158 

(emphasis added). At no point, however, does Dr. Siegel state Laurie is capable of working 25 

hours per week. United incorrectly extrapolated Laurie’s capacity to work for 5 hours in one day 

to mean she could work 25 hours every week. This directly contradicts what Dr. Siegel wrote 

next: Laurie “may have required an intermittent one to two days to be out of work. She may 

have also required an intermittent 1-2 days to decrease her hours from an average of 4-5 hours 

per day to less hours such as 1-2 hours on a particular day based on her symptomatology or flare 

of chronic fatigue complaints.” AR0160. 

Thus, for example, if Laurie works five hours on both Monday and Tuesday, two hours 

on both Wednesday and Thursday because of a slight flare in her symptoms, and finishes with 

four hours on Friday, she would have worked 18 hours—below the 24-hour threshold. In fact, 

this titrating of her schedule is exactly what Laurie has been doing per Dr. Kasten’s 

recommendations. If Laurie modified her schedule by just one hour on two days—as Dr. Siegel 

recognized she has done—she would fall below the 24-hour threshold. It was unreasonable for 

United to find one supportive statement, extrapolate the daily work capacity to a weekly work 

capacity, and ignore the modifying statements immediately following that statement. The Plan 

terms do not say to divide the full-time work week into hours worked per day, and then find that 

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39 – FINDINGS AND RECOMMENDATIONS 

the claimant is not disabled if she can work that amount on any given day. Such an 

interpretation is inconsistent with the clear language of the Plan. 

Second, United disregards that Dr. Lumpkins mistakenly understood the Plan terms to 

mean Laurie had to be totally disabled to be qualified as disabled. Dr. Lumpkins opined “the self 

reported function is the best support that [Laurie] is not totally disabled as she has been working 

in a part time capacity.” AR 0731 (emphasis added). This language suggests that Dr. Lumpkins 

was mistaken about the Plan terms and believed they required Laurie to be “totally disabled” to 

receive benefits. However, the question is not whether Laurie is “totally disabled,” i.e., unable to 

work at all. The question is whether she is disabled under the Plan terms, i.e., unable to work 24 

hours per week. Dr. Lumpkins’ ultimate conclusion—that Laurie is not totally disabled—misses 

the point. It does not support United’s position that Laurie is not disabled under the Plan terms, 

and relying on it to support a denial of benefits misinterprets those terms. 

Third, with respect to Dr. Kolbell’s IME, United misinterprets the Plan terms by equating 

the lack of a mental disorder with a lack of disability. Again, both the STD and LTD Plans 

require Laurie to be incapable of working 24 hours per week to be designated as disabled. Dr. 

Kolbell’s findings that Laurie is extremely bright, does not suffer from depression or an anxiety 

disorder, and does not have a neuropsychological deficit or psychological condition do not show 

Laurie is capable of working a 24-hour week. Dr. Kolbell’s findings simply add to the list of 

conditions and disorders ruled out by 18 other physicians and medical practitioners from 2003 to 

2004 before Laurie was diagnosed with CFS. 

Finally, similar to United’s 5-hour-per-day extrapolation problem discussed in regard to 

Dr. Siegel’s medical opinion, United also unreasonably infers that Laurie can work 24 hours per 

week because she completed a 7-hour IME. This inference is unreasonable because of the nature 

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40 – FINDINGS AND RECOMMENDATIONS 

of Laurie’s CFS symptoms. This inference may indeed be valid in many other contexts, but 

Laurie’s CFS symptoms “wax and wane” and exertion on one day leads to an exacerbation of 

symptoms on following days. Once more, the Plan terms do not say to divide the full-time work 

week into hours worked per day, and then find that the claimant is not disabled if she can work 

that amount on any given day. To do so is to misinterpret the Plan terms. 

Thus, to the extent United’s medical consultants’ Plan interpretations are inconsistent 

with the clear language of the Plan and to the extent United relied on its consultant 

misinterpretations in its own denials, United abused its discretion. 

CONCLUSION 

 The court is left with a definite and firm conviction United made a mistake in denying 

Laurie’s claims for STD and LTD benefits. Tempered by the low level of skepticism 

commensurate with United’s structural conflict of interest, and weighing each of the relevant 

factors, this court must conclude United abused its discretion in denying Laurie’s claims. It is 

not possible to draw two inconsistent conclusions from the record; the only conclusion the court 

perceives is that Laurie has not been able to work 24 hours per week since her May 2012 CFS 

crash. Concluding otherwise is not supported by substantial evidence. Because United’s denials 

of Laurie’s STD and LTD claims were not supported by substantial evidence, it abused its 

discretion in denying her claims. 

RECOMMENDATIONS 

For the reasons discussed above, Laurie’s Motion for Summary Judgment (ECF #34) 

should be granted, and United’s Motion for Summary Judgment (ECF #36) should be denied. 

/// 

/// 

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41 – FINDINGS AND RECOMMENDATIONS 

SCHEDULING ORDER 

These Findings and Recommendations will be referred to a district judge. Objections, if 

any, are due Monday, February 06, 2017. If no objections are filed, then the Findings and 

Recommendations will go under advisement on that date. If objections are filed, then a response 

is due within 14 days after being served with a copy of the objections. When the response is due 

or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. 

DATED January 23, 2017. 

/s/Youlee Yim You 

Youlee Yim You 

United States Magistrate Judge 

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