Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding D.C. No.2:06-cv-00754-AG-
The opinion of the court was delivered by: Kleinfeld
Argued and Submitted May 4, 2009-Pasadena, California
Before: Cynthia Holcomb Hall,*fn1 Andrew J. Kleinfeld, and Barry G. Silverman, Circuit Judges.
Opinion by Judge Kleinfeld;
We address the standard for overturning an ERISA plan decision, and why the challenger met it.
Samuel Salomaa worked for American Honda Motor Company, Inc. for more than twenty years. His supervisor described him as "without a doubt the best employee to have worked for me" in her 15 years at Honda. He was never out sick, and never left work early or came in late. At age 47, Salomaa was a dedicated family man to his wife and daughter, and an exercise enthusiast who jogged two miles to and from work every day and enjoyed playing tennis with his wife.
But in October 2003, Salomaa fell ill with what he thought was a stomach flu that made him miss three days of work. He was never the same again. He returned to work, but was tired all of the time, and had difficulty concentrating. His supervisor noted that Salomaa "walked more slowly," and co-workers asked her about Salomaa's well-being. Not only did Salomaa no longer jog to work, he did not even walk to work. After work he was completely exhausted, and spent weekends in bed recovering.
Salomaa went to Kaiser Permanente to find out what was wrong with him and get it cured. His complaint was grossly excessive fatigue, beginning when he had his "flu," along with other symptoms, such as headache, insomnia, and excessive sensitivity to stimuli. His doctors went through a lengthy process of ruling out alternatives to chronic fatigue syndrome.
Over the following months, Salomaa's Kaiser Permanente physicians worked on a diagnosis. He had reported loss of libido, and a blood test showed low testosterone, but a subsequent blood test was normal, so low testosterone was ruled out as an explanation. An MRI showed no brain abnormalities. The thyroid reading on his blood tests were normal. Heart failure might explain severe fatigue, and an echocardio-gram showed mild mitral regurgitation, but the examining cardiologist ruled out a heart problem as the cause of the fatigue.
A Kaiser Permanente psychiatrist formed what she called a "working diagnosis" of "atypical depression." The depression was "atypical" in that Salomaa had no previous psychiatric history, could precisely identify the onset of his fatigue following his October 2003 flu, had no "precipitating stressors" that might have triggered the depression, and denied feeling depressed. The psychiatrist tried treating Salomaa with various anti-depressants and a counseling program. In July 2004, Salomaa took medical leave, based on his doctor's diagnosis of depression and anxiety. After several months, it was clear that the medication and counseling were not working, so the physician who had made the working diagnosis of depression rejected the diagnosis.
Salomaa's condition got worse instead of better. Some days, getting up and getting dressed left him too exhausted to drive the two miles to his job, so he stayed home. When he did go to work, he could not do his job as well as he had been before his illness. His supervisor reported that on bad days he seemed confused, and she often insisted that he go home to rest. When he came home from work, he went straight to bed, even eating dinner there. In spite of his fatigue, Salomaa also had insomnia.
A physician in the internal medicine department at Kaiser Permanente, Dr. Floyd Anderson, diagnosed chronic fatigue syndrome. He noted the ineffectiveness of various medications that had been tried for other conditions that might explain the symptoms. He wrote on March 4, 2005 that "since beginning our Kaiser Permanente Chronic Fatigue/ Fibromyalgia Clinic in 1992, Mr. Salomaa is one of the more severe patients that I have seen in the clinic as far as his energy level. He is probably the most sensitive patient I've seen in regard to sensitivity to sound. His memory has also markedly decreased secondary to his illness. Mr. Salomaa is totally disabled and would not be able to work even 30 minutes per day on a daily basis." The psychiatrist who had tentatively diagnosed depression wrote to the plan administrator concurring in Dr. Anderson's diagnosis, and stating that Salomaa had "never suffered from Major Depression though that was [her] working diagnosis for several months."
Salomaa applied to Honda's ERISA plan administrator for long-term medical disability benefits.*fn2 The claim manager denied his claim on April 22, 2005. She wrote that Salomaa had no positive objective physical findings, the lack of objective physical findings apparently forming the basis for the denial. She noted that Salomaa's "thyroid, calcium, albumin, serum electrolytes, and CBC results were normal." Contrary to her inference that Salomaa was healthy, the Kaiser Permanente physicians had used these normal results to rule out alternatives to chronic fatigue syndrome. She erred in some respects, suggesting a less than careful examination of Salomaa's medical record. For example, she wrote that he had "no fevers or weight loss," but actually he had lost 14% of his body weight in six months according to the medical materials that had been submitted. She misunderstood the Kaiser Permanente evaluation that "you never had major depression" as meaning that "your depression has improved." In the denial letter, she relied on review by "our medical department," by which she meant that one physician had read Salomaa's medical file and written his opinion.
The denial had invited supplementation within thirty days, so Dr. Anderson provided more details. The disability claim manager had provided a form for Salomaa's physician to use to check off physical abilities, and Dr. Anderson checked "occasionally," the lowest level allowed on the form, for sitting, standing, walking, grasping, and carrying objects. He wrote a letter as well, stating that Salomaa had severe fatigue, and was "only able to do paperwork for a few minutes and then is very fatigued." Dr. Anderson explained in his letter that patients with chronic fatigue syndrome have good days and bad days,is considered Disabled if, solely because of Injury or Sickness, he or she is:
1. unable to perform the material duties of his or her Regular Occupation; and 2. unable to earn 80% of more of his or her Index Covered Earnings from working his or her Regular Occupation.
The disability claim manager sent out a final denial on May 20, 2005. She again recited the absence of positive laboratory results or physical findings, again made the error on weight loss and depression, and noted that Salomaa's daily activities exceeded Dr. Anderson's estimations. She pointed out that his daily journals had showed him driving a half-hour to an hour to Home Depot and an hour to pick up his children at school, both taking longer than the half-hour that his doctor said was the most he could work.
Dr. Anderson responded that since Salomaa's last two visits in May and June, he thought Salomaa's condition had markedly deteriorated, to where he could no longer work even five minutes per day. Responding to the disability claim manager's argument that Salomaa had "no physical findings to support chronic fatigue syndrome," he wrote that in his experience, "most patients' symptoms and physical findings manifest when they initially develop the viral-type illness," as Salomaa's had. He pointed out that usually there were no physical findings for chronic fatigue syndrome except that the patient looked fatigued, just as there were no physical symp- toms for migraine headache except that the patient would appear to be in pain.
Rebutting the plan administrator's contention, Dr. Anderson wrote that on his long trip to Home Depot, Salomaa had gone with his brother-in-law, "and was too fatigued to go into Home Depot and consequently sat in the car the entire time." He had picked up his children at school only twice, in January, and had been unable to do since. Refuting the administrator's claim of "no appearance of physical findings," Dr. Anderson wrote that had been "shocked" at Salomaa's decline from 163 to 140 pounds, perhaps because he was too fatigued to come to the table for breakfast or lunch and could only sit for five or ten minutes at dinner. Salomaa, Dr. Anderson wrote, was spending most of his time in bed, and at his last visit in June, Salomaa had been unable to sit up on the examining table without assistance and "appeared cachectic [cachexia is severe generalized weakness, malnutrition and emaciation*fn3 ] and weak."
The disability claim manager wrote that Dr. Anderson's letter was unpersuasive because he had not mentioned various matters (many of which had not troubled the disability claim manager in earlier correspondence), and in a telephone conversation with someone he had said that Salomaa's limitations were based on what Salomaa had said:
Dr. Anderson's letter dated June 13, 2005 made no specific mention of substantial impairment of cognitive function, sore throat, current infection, tender lymph nodes, specific myalgia or arthralgia, or new onset of headache or post-exertion fatigue. There were no rational specific limitations of physical functional capacity such as the number of hours you are able to stand or the maximum amount of weight you are able to lift or carry. Dr. Anderson noted that you looked tired and reported weight loss but the reason behind the weight loss and its relation to specific physical functional capacity is unknown.
Furthermore, there was no mention of new positive lab findings that may be supportive of the etiology of Chronic Fatigue Syndrome. There is no indication that you are on an ongoing specific treatment program including pharmacological stimulants or other measures for reported lack of energy. In a telephone conversation with Dr. Anderson on May 19, 2005, he stated that your limitations of physical functional capacity were based entirely upon self report. Under generally accepted medical standards one would not expect to see this constellation of findings in a severe case of Chronic Fatigue Syndrome that is incapacitating in terms of pain or fatigue.
Also during July, Salomaa's short term disability benefits expired. He could no longer afford his house, so his family sold it and moved from Glendale, California to less expensive Arkansas. He could not help with the move because he was too exhausted. Nor was he strong enough to manage flying, so he lay in the backseat of a car while his brother-in-law drove.
After the May 20, 2005 final denial of disability benefits, Salomaa appealed. His attorney made a written request for Salomaa's entire file, including correspondence with anyone the plan consulted with regard to the claim. He also asked a number of questions, such as what "positive lab findings" the plan administrator thought might be relevant to the chronic fatigue syndrome diagnosis, it being a diagnosis ordinarily given when there are no positive laboratory findings despite chronic fatigue symptoms. Salomaa's attorney also offered in his letter to submit Salomaa for an examination by the disability plan's selected physicians and for such laboratory tests as the plan wished to have performed.
The plan did not respond to Salomaa's attorney's letter. Nor did the plan ever have any physician of its choosing examine Salomaa. When Salomaa's attorney wrote again, the disability claim manager told him that the plan had said all it was going to say, Salomaa's claim was denied, and that Salomaa had not appealed.
Salomaa's attorney also provided the plan with additional documentary evidence of Salomaa's condition. Salomaa's boss at Honda wrote that he was one of the few people in southern California to walk or jog to work, and had been a superb employee until he got sick, and that those at Honda aware of his difficulty getting his disability benefits were "appalled." His brother-in-law wrote that he got to know Salomaa when they were students at Harvard and MIT, that Salomaa had been very energetic and intelligent, but that now he had "profound" apparent changes. For example, "any sentence containing a sequence of ideas was too difficult for him to comprehend." While helping out with chores Salomaa had become unable to do, the brother-in-law observed that Salomaa had lost the "ability to plan" and the stamina for simple household tasks and even for conversation. He could do well for a few minutes, but then collapsed. "I drove Sam and their daughter from Los Angeles to Arkansas. For the entire trip Sam was either fully or partially reclined in the back of their Honda Element. . . . When stopping to eat, Sam could not manage to eat in the restaurant. I would go in to order the food, and then bring it to Sam to eat in the car."
Salomaa's attorney also forwarded a neuropsychological evaluation from New Jersey Medical School. Two neuropsychologists reported on a battery of intelligence and other tests they had administered. They included a standard test for malingering, which showed "a valid profile and that he was putting forth adequate effort." His intelligence tested as "average," a full scale IQ of 108 which is fine for many people but shockingly low for a Harvard man with a career in computers. He "performed in the impaired range" when tasks becamemore difficult and distractors were introduced. The neuropsychologists' conclusion was that there was no evidence of psychiatric illness, but a "neuropsychological profile consistent with reports in the literature that identify slowed processing speed and decreased mental efficiency (ability to process multiple pieces of information at one time) as the hallmark cognitive symptoms of [chronic fatigue syndrome]."
The director of the New Jersey Medical School Chronic Fatigue Syndrome/Fibromyalgia Center wrote after personally examining Salomaa that Salomaa "has underlying chronic fatigue syndrome superimposed on an extreme stress sensitivity. . . . In fact, I think he is one of the most disabled individuals I have seen in over 15 years of practice. I do not believe this patient can work, even on a part-time basis. Simple cognitive tasks produce a dramatic worsening of his entire symptom complex." The dramatic ...