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Mental/Nervous Limitation – N.D. Cal.

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  • Mental/Nervous Limitation – N.D. Cal.

    Here’s a new case out of the Northern District of California entitled David Do v. Metropolitan Life Insurance Company. The court first determines that the burden of proof is on the plaintiff to demonstrate that his condition is an exemption from the limitation. The court then finds that the evidence that he submitted of this exemption is sufficient.

    Here, Plaintiff similarly seeks to prove that an exemption to a limitation on coverage applies. Plaintiff does not dispute that his disability is a neuromuscular, musculoskeletal, or soft tissue disorder that falls within the purview of the NMS limitation. Instead, Plaintiff argues that he has radiculopathy, which is an exemption to the NMS limitation. Thus, the Court follows the reasoning of Hoffman and holds that Plaintiff bears the burden of showing he has radiculopathy, an exemption to the NMS limitation, just as he would bear the burden of proving that he is eligible for coverage.

    Thus, the Court considers whether Plaintiff has shown by a preponderance of the evidence that the radiculopathy exemption applied at the time that his benefits ended due to the NMS limitation, that is, on September 6, 2015. Muniz, 623 F.3d at 1295. The policy requires “objective evidence” of radiculopathy, which is defined as a “disease of the peripheral nerve roots supported by objective clinical findings of nerve pathology.” AR 50-51.
    The court finds:

    Plaintiff asserts that he has presented objective evidence of radiculopathy, including: (1) the two EMGs conducted by Dr. Standage, dated November 23, 2013 and February 10, 2016, which show lumbar radiculopathy that has progressed from the right side at L5 in 2013 to both lower extremities in 2016, (2) the March 1, 2016 MRI, which shows mild to moderate canal stenosis and moderate to severe left neural foraminal narrowing, and (3) Dr. Reynold’s March 14, 2016 report, which reported the results of clinical examination (such as a positive straight leg test bilaterally and decreased sensation light touch and pinprick to Plaintiff’s left upper extremity and right lower extremity) and various diagnostic tests, and diagnosed lumbar radiculopathy. In addition, Plaintiff contends that various other physicians’ clinical findings support the objective evidence. From 2013 through 2016, several medical professionals conducted clinical examinations and reviewed diagnostic tests of Plaintiff’s condition and diagnosed him with radiculopathy. See, e.g., AR 2380 (Dr. Hammon); AR 2563 (PA Aulakh); AR 1867-1881 (Dr. Standage); AR 2887 (Dr. Renbaum); AR 2078-2083 (Dr. Mitchell). The Court finds particularly persuasive Dr. Reynold’s March 14, 2016 report, which is reasonably close in time to the date Plaintiff’s benefits terminated, suggesting he had radiculopathy at that time. See Fontana v. Guardian Life Ins., 2009 WL 73743, at *4 (N.D. Cal. Jan. 12, 2009) (citing Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988)) (holding that “reports containing observations made after the period for disability are relevant to assess the claimant’s disability.”).

    Defendant points to some contrary evidence in the record, such as Dr. Sun’s report that Plaintiff did not exhibit radiculopathy as well as Dr. McPhee’s and Dr. Madireddi’s medical opinions. On balance, this evidence does not outweigh the ample evidence described above. Moreover, Dr. McPhee’s opinion originally did not consider the objective evidence submitted by Plaintiff. After it was pointed out to Dr. McPhee that he did not consider the evidence, he issued revised findings which came to the same conclusion as before. Dr. McPhee’s addendum appears suspect, especially considering he acknowledged that Plaintiff’s MRI and EMG tests were not inconsistent with radiculopathy, but nevertheless dismissed the test results as not the best evidence of the disease. Dr. McPhee did so despite the fact that he has stated previously that “[n]eedle electromyography [EMG] is the single most useful procedure diagnostically in cases of suspected radiculopathy.” Brien v. Metro. Life Ins. Co., 2012 WL 4370677, at *8 (D. Mass. Sept. 21, 2012). Thus, the Court does not find Dr. McPhee’s opinion to be persuasive. As for Dr. Madireddi, the Court affords limited weight to her opinion because she conducted a paper review and did not conduct any clinical examination of
    Plaintiff. Dr. Madireddi also provided an addendum to her report without providing any additional analysis, calling her conclusions into question.
    The court concludes that the defendant did not point to anything in the plan defining what objective clinical evidence means nor did they demonstrate that plaintiff’s radiculopathy could disappear and reappear within a matter of months. Thus, the court rules for plaintiff. The opinion is attached below.
    Attached Files