Armani v. Northwestern Mutual Life Insurance Co. ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AVERY ARMANI, No. 14-56866
Plaintiff-Appellant,
D.C. No.
v. 2:13-cv-07058-
RSWL-RZ
NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY, a
corporation, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted October 3, 2016
Pasadena, California
Filed November 4, 2016
Before: Dorothy W. Nelson and Richard A. Paez, Circuit
Judges, and Elaine E. Bucklo,* Senior District Judge.
Opinion by Judge D.W. Nelson
*
The Honorable Elaine E. Bucklo, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
2 ARMANI V. NORTHWESTERN MUTUAL
SUMMARY**
Employee Retirement Income Security Act
The panel vacated in part the district court’s judgment in
favor of the defendant in part in plaintiff’s action under the
Employee Retirement Income Security Act, challenging a
denial of benefits under a long term disability insurance
policy.
The administrative record showed that the plaintiff could
not sit for more than four hours a day. The district court,
reviewing de novo, nonetheless upheld the insurer’s
determination that the plaintiff could perform sedentary work.
The panel held that the district court erred by rejecting the
plaintiff’s proposed definition of “sedentary” work on the
basis that it was drawn from the Social Security context.
Agreeing with other circuits, the panel held that an employee
who cannot sit for more than four hours in an eight-hour
workday cannot perform “sedentary” work that requires
“sitting most of the time.”
The panel vacated the part of the district court’s judgment
denying the plaintiff his long term disability benefits and
remanded for further proceedings.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARMANI V. NORTHWESTERN MUTUAL 3
COUNSEL
Charles Fleishman (argued) and Paul A. Fleishman, The
Fleishman Law Firm, Woodland Hills, California, for
Plaintiff-Appellant.
Linda M. Lawson (argued) and Charles K. Chineduh,
Meserve Mumper & Hughes LLP, Los Angeles, California,
for Defendant-Appellee.
OPINION
D.W. NELSON, Senior Circuit Judge:
Avery Armani (Armani) appeals the district court’s
judgment denying him benefits under his long term disability
policy sponsored by his employer and issued by Appellee
Northwestern Mutual Life Insurance Company (Northwestern
Mutual). We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we VACATE the part of the judgment denying Armani
benefits and REMAND the case for further proceedings
consistent with this opinion.
BACKGROUND
Armani worked as a full-time controller for the
Renaissance Insurance Agency (Renaissance) from
November 3, 2008 to May 18, 2011. On January 6, 2011,
during the normal course of his employment, Armani injured
his back while lifting a heavy backup power supply. A
family practitioner treated Armani on January 26, 2011, and
diagnosed a lumbar region sprain, muscle spasms, and
sciatica. A chiropractor, Dr. Brian Padveen, later treated
4 ARMANI V. NORTHWESTERN MUTUAL
Armani, restricted him to modified work effective April 13,
2011, and instructed Armani not to sit continuously without
the ability to change position. On April 19, 2011, an MRI
revealed minor disc desiccation as well as disc bulge and
annular tear. Armani stopped working on May 18, 2011 as a
result of his increasing back pain. Dr. Padveen determined
the next day that Armani was unable to work and that he
should be re-evaluated on June 22, 2011. Armani saw a
different chiropractor on June 22, 2011, who also determined
that Armani was unable to work and that he should be re-
evaluated again at a later date.
As a Renaissance employee, Armani was insured under a
group long-term disability policy (the LTD Plan) issued by
Northwestern Mutual. Under the terms of the LTD Plan, the
definition of disability changes after benefits are paid for 24
months. For the first 24 months, a claimant is “only required
to be Disabled from [his] own occupation,” which means the
claimant is either “[u]nable to perform with reasonable
continuity the material duties of [his] own occupation” or
“[u]nable to earn more than 80% of [his] Indexed
Predisability Earnings while working in [his] own
occupation.” To receive benefits after 24 months of disability
payments, the claimant must then “be Disabled from all
occupations.” This requires the claimant to demonstrate that
he is “[u]nable to perform with reasonable continuity the
material duties of any gainful occupation for which [he is]
reasonably fitted by education, training, and experience” or
“[u]nable to earn more than 80% of [his] Indexed
Predisability Earnings while working in [his] own or any
other occupation.”
Armani completed a Group Disability Claim Employee
Statement for Northwestern Mutual on July 15, 2011,
ARMANI V. NORTHWESTERN MUTUAL 5
reporting that his back injury prevented him “from sitting,
standing, walking, driving, and concentrating for prolonged
period of time without experiencing a lot of pain &/or
difficulty.” Northwestern Mutual also received a description
of Armani’s “working conditions” as “sedentary the majority
of the time in a quiet office environment.” Armani indicated
that his job required him to sit for approximately seven hours
a day and stand or walk for one hour a day. On July 25,
2011, Northwestern Mutual received an Attending Physician
Statement indicating that Armani was limited to sitting for
four hours, standing for two hours, and walking for two hours
during an eight-hour workday. Northwestern Mutual’s
vocational case manager later confirmed that Armani’s
occupation was classified as sedentary, and Armani’s
disability claim was approved under the “own occupation”
test effective July 18, 2011.
Between September 2011 and January 2012, Armani
continued to visit chiropractors, pain specialists, and
physicians, all of whom confirmed that Armani’s disability
precluded him from working. On January 16, 2012, another
chiropractor indicated that Armani was limited to sitting for
four hours a day and to standing and walking for two hours a
day, but believed that Armani’s condition would improve and
that he could return to work on July 6, 2012. Based solely on
these medical records, Northwestern Mutual’s reviewing
physician, Dr. John Hart, determined that Armani was
capable of working in a sedentary position.
On February 11, 2013, Armani returned to Dr. Padveen,
who determined that Armani was still limited to sitting for
four hours a day and to standing and walking for two hours a
day. In a follow-up visit on April 15, 2013, Dr. Padveen
again stated that Armani could sit for between two and four
6 ARMANI V. NORTHWESTERN MUTUAL
hours a day and must alternate between sitting and standing
to relieve pain every 30 minutes.
Dr. Hart was asked again by Northwestern Mutual to
review Armani’s medical records and on April 18, 2013,
wrote that Armani was “capable of doing a sedentary-level
occupation without limitations or restrictions.” Using Dr.
Hart’s report, Northwestern Mutual’s vocational case
manager assessed Armani’s ability to perform “any
occupation” given his functional capacity, work history,
skills, and training. On June 12, 2013, the case manager
identified three positions in addition to Armani’s own
position that he could perform at a “sedentary” level. She
based her assessment on the Dictionary of Occupational
Titles (DOT), published by the United States Department of
Labor, which states that “[s]edentary work involves sitting
most of the time, but may involve walking or standing for
brief periods of time.” (emphasis added).
By letter dated July 9, 2013, Northwestern Mutual
informed Armani that his LTD claim was being closed
because his records did not support a disability under the
“own occupation” or “any occupation” test. Armani appealed
the decision and asked for review by a second doctor. After
being assigned to review Armani’s records, Dr. Hans Carlson
also found that the records “[did] not support that [Armani]
would be precluded from sedentary-level work.” Dr. Carlson
further elaborated that “[i]t would be reasonable that
[Armani] would have the ability to reposition from sitting to
standing occasionally as needed.” On September 11, 2013,
Northwestern Mutual informed Armani that it was upholding
its claim decision.
ARMANI V. NORTHWESTERN MUTUAL 7
On September 16, 2013, Armani filed a lawsuit pursuant
to the Employee Retirement Income Security Act (ERISA)
seeking judicial review of Northwestern Mutual’s claim
decision.1 Following a bench trial, during which the district
court reviewed de novo Northwestern Mutual’s
determination, the court awarded Armani benefits for the
remainder of the first 24 months of disability under the Plan,
finding that “there was no change in circumstances sufficient
to warrant denying [Armani] the nine days of benefits at the
end of the ‘own occupation period.’”
However, the district court also held that Armani failed to
show by a preponderance of the evidence that he was disabled
from “all occupations” after July 18, 2013, reasoning that
“[t]he Administrative Record contain[ed] scant information
regarding [Armani’s] condition during this period.” Although
Armani argued that he was “unable to perform any
occupation classified as ‘sedentary,’ because, by definition,
‘sedentary’ requires an ability to sit for six hours,” the court
held that Northwestern Mutual was not bound by this
definition, and that Armani had failed to demonstrate how his
disability prevented him from performing any of the
sedentary occupations identified by the vocational case
manager.
The district court also excluded four exhibits from outside
the administrative record that Armani attempted to introduce
with his Reply Trial Brief, finding that the documents “[were]
1
The beneficiary of a disability insurance plan may bring a civil
action under ERISA “to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan, or to clarify his
rights to future benefits under the terms of the plan.” 29 U.S.C.
§ 1132(a)(1)(B).
8 ARMANI V. NORTHWESTERN MUTUAL
not necessary to adequately conduct [the court’s] review.”
One such exhibit included an August 7, 2013 medical
evaluation stating that Armani was still limited to sitting for
two to four hours a day. Armani timely appealed.
STANDARD OF REVIEW
We review the district court’s findings of fact for clear
error and its conclusions of law de novo. United States v.
Bell, 602 F.3d 1074, 1079 (9th Cir. 2010).
ANALYSIS
When a district court reviews de novo a plan
administrator’s determination of a claimant’s right to recover
long term disability benefits, the claimant has the burden of
proving by a preponderance of the evidence that he was
disabled under the terms of the plan. Muniz v. Amec Const.
Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir. 2010).
The administrative record available to the district court
plainly showed that, between July 25, 2011, and April 15,
2013, every physician and chiropractor who treated Armani
determined that he could not sit for more than four hours a
day. Nonetheless, the district court upheld Northwestern
Mutual’s determination that Armani could perform work at
the “sedentary” level as of April 18, 2013. The district court
rejected Armani’s proposed definition of “sedentary” work on
the basis that it was drawn from the Social Security context.
Citing “the vast differences in both form and function
between Social Security law and ERISA law,” the district
court concluded, without further discussion or analysis, that
“the federal criteria for Social Security claims are not
ARMANI V. NORTHWESTERN MUTUAL 9
transferable to ERISA cases.” This conclusion was
erroneous.
Indeed, while this Court has yet to address the question,
other courts evaluating ERISA claims and interpreting the
DOT have consistently held that an employee who cannot sit
for more than four hours in an eight-hour workday cannot
perform work classified as “sedentary.” See, e.g., Connors v.
Connecticut General Life Ins. Co., 272 F.3d 127, 136 n.5 (2d
Cir. 2001) (“The ability to sit for a total of four hours does
not generally satisfy the standard for sedentary work.”);
Brooking v. Hartford Life & Accident Ins. Co.,167 Fed. Appx.
544, 548–49 (6th Cir. 2006); Robertson v. Standard Ins. Co.,
139 F. Supp. 3d 1190, 1209 (D. Or. 2015) (“Since sedentary
work, as defined by the DOL’s Dictionary of Occupational
Titles, ‘involves sitting most of the time,’ . . . courts have
concluded that even a four-hour sitting tolerance is
insufficient to render one capable of performing sedentary
work.”) (internal citations omitted). Some of these courts
have further noted that “sedentary work” generally requires
the ability to sit for at least six hours. See LaVertu v. Unum
Life Ins. Co. of Am., 2014 WL 1224736, at *13 (C.D. Cal.
Mar. 25, 2014) (“Sedentary work requires the ability to sit for
at least six hours of an eight-hour workday.”); Wykstra v. Life
Ins. Co. of N. Am., 849 F. Supp. 2d 285, 295 (N.D.N.Y. 2012)
(“[T]he generally recognized definition of sedentary work is
work that ‘involves up to two hours of standing or walking
and six hours of sitting in an eight-hour work day.’”); Alfano
v. CIGNA Life Ins. Co. of New York, 2009 WL 222351, at *18
(S.D.N.Y. Jan. 30, 2009) (noting that “6 hours per day [is]
generally recognized as the minimum [sitting] tolerance
required for sedentary work”); Mead v. ReliaStar Life Ins.
Co., 2008 WL 850675, at *2 n.4 (D. Vt. Mar. 27, 2008) (“A
generally recognized standard for sedentary work ‘involves
10 ARMANI V. NORTHWESTERN MUTUAL
up to two hours of standing or walking and six hours of sitting
in an eight-hour work day.’”). Accordingly, these cases
reflect the logical conclusion that an employee who is unable
to sit for more than half of the workday cannot consistently
perform an occupation that requires sitting for “most of the
time.” We agree with this commonsense conclusion and hold
that an employee who cannot sit for more than four hours in
an eight-hour workday cannot perform “sedentary” work that
requires “sitting most of the time.”
Rather than consider whether the preponderance of the
evidence established that Armani was unable to perform “any
occupation” while restricted to sitting for no more than four
hours a day, the district court rejected Armani’s proposed
definition of “sedentary” work on the erroneous basis that the
definition was limited to the Social Security context. That
error led the court to conclude that Armani had not
established that he was unable to perform the four positions
Northwestern Mutual had identified based on his functional
capacity as of April 18, 2013, despite the fact that all four
positions were classified as “sedentary,” and despite
undisputed evidence that, as of that date, Armani was unable
to sit for more than four hours a day.
Accordingly, we hold that the district court erred in
denying Armani his long term disability benefits under the
Plan. Because we vacate the district court’s judgment on
these grounds, we need not decide whether the district court
properly excluded extra-record evidence submitted by
Armani.
ARMANI V. NORTHWESTERN MUTUAL 11
CONCLUSION
We VACATE the part of the district court’s judgment
denying Armani his long term disability benefits and
REMAND the case for further proceedings consistent with
this opinion.