King v. CIGNA Corp., 2007 U.S.Dist.LEXIS 59950 (N.D.Cal. 8/7/2007)(Issue: Scope of Review).  The plaintiff in this case underwent three back surgeries due to multiple spinal impairments.  Unfortunately, the surgery failed to provide relief; and King was so impaired that she needed to use a walker and suffered from acute chronic pain.  Although a claim for disability benefits was initially approved, CIGNA began to question whether King was totally disabled and had her undergo a functional capacity evaluation and surveillance.  At the FCE, the claimant reported severe pain and was only minimally able to participate in the testing.  The surveillance showed King primarily using a walker except while she was in a grocery store or drugstore where she used a grocery cart for support.  A CIGNA medical director reviewed the FCE and surveillance and concluded the restrictions and limitations provided by the treating pain specialist were unsupported.  The insurer believed King was more active on surveillance than her physician’s limitations and requested Dr. Dan Gerstenblitt to review the file.  Gerstenblitt reported that “[t]he claimant is felt to be able to work full time sedentary work.”  He found no objective evidence of radiculopathy and asserted that the pain complaints were out of proportion to the radiologic evidence.  He also asserted that the claimant had used a walker for 25 years and should be able to use one in a sedentary job.  Following Gerstenblitt’s recommendations, benefits were terminated. 

After receiving the denial, King was examined by a specialist in pain medicine who was also furnished with copies of the surveillance reports in addition to all the medical records and the report of the FCE.  That doctor concluded: 

   This 53-year-old woman presents with a severe chronic pain disorder secondary to multi-level painful degenerative disc disease and failed lumbar surgery. In reviewing the patient's medical records, presentation  today, video surveillance, and past evaluations by neurosurgeons and orthopedists, it is clear that she is disabled.

One of the striking features of the patient's longitudinal course is the absence of neurosurgical or orthopedic follow up. That is, the last note authored by Dr. Barnes, the surgeon performing the lumbar fusion, suggests the patient's fusion is not solid at L5-S1 nor at L3-4. This was substantiated by the CT examination at that time which is the best way to evaluate such. . . .

Indeed, this patient's overwhelming pain and disability have appeared to be consistent throughout the patient's records as well as sub rosa taping. In my experience with many thousands of failed back surgery patients, the dismissing as overly complex of a patient's symptoms is an all too common feature. The postural flexion bias which the patient clearly prefers . . . and the repeated observation of investigators that the patient prefers either her walker or a push cart in stores is also consistent with the patient's severe lumbar pathology and failed lumbar fusion. . . .

It is my strong opinion, based on the finding and review of records, including the sub rosa observations, that Ms. King is unable  to perform the duties of any full-time occupation. While I philosophically feel that all patients, even those with severe pain disorders such as Ms. King, would benefit from a positive focus in their life, it is unreasonable to expect that she would be competitive in the open labor market, and any job would have to be done in an extraordinarily modified, part-time way . . . .

At this juncture, I do not feel that the patient's medications greatly affect her ability to perform in the work place . . . . It is conceivable that if she were aggressively treated with medications, she might be somewhat more functional, but it is not medically probably that she would be functional enough to be employed. . . .

In reviewing this patient's condition, course, and medical records, as well as presentation today, I find her symptoms to be both reasonably reliable and credible. . . . I am frankly at a loss to completely understand Dr. Gerstenblitt's opinion.

It would appear that, without a good faith examination and without adequate training or knowledge of pain medicine and orthopedics, he has rendered a highly subjective and injurious report regarding Ms. King.

One of the most striking features of his  report and that which he makes a great deal of -- and, subsequently, the insurance company makes a great deal of -- is his statement that "What is significant about this note [from Dr. Amirdelfan] is that the claimant has been using a walker since the age of 27!" He goes on in his conclusion of his report to state, "In summary, the claimant used a walker prior to the lumbar surgeries and going out of work, and frankly, there was no reason she could not return to work at some point in time after the lumbar surgeries." As noted in the body of my report, this is simply an error. The patient began using a walker after her three-level lumbar fusion and continues to use such to this date. This use is consistent with her lumbar pathology and failed lumbar fusion and post-laminectomy syndrome. . . . On the whole, I find Dr. Gerstenblitt's evaluation to be extremely inadequate. . .

I find the videotape surveillance showing the patient using a walker and ambulating with an antalgic gait when not using a walker to be quite consistent with the finding and medical history. Indeed, the fact that she does put the walker into the trunk herself is not inconsistent. The patient uses others to put the  walker in the trunk when they are available and such activity, while not ideal and aggravating to her pain, can be done but with likely sequelae of flares of pain. Whether the patient, out of necessity, can occasionally do activities that might be routine in the work place seems to have little to do with whether she can sustain such activities. Flares of pain are quite detrimental to one's focus and ability to perform cognitive tasks. 

*22-*26.  Despite that report, CIGNA upheld its denial and litigation ensued.  The claim was evaluated under the de novo standard.  The court determined that the plaintiff adequately proved her entitlement to benefits. Noting that the only evidence undermining the plaintiff’s claim was Dr. Gerstenblitt’s report, the court came to a different conclusion after pointing out that his findings were weakened by the fact that he never examined King.  The court also cited Jebian v. Hewlett-Packard, 349 F.3d 1098, 1109, n.8 (9th Cir. 2003) for the proposition that “a given treating physician has a greater opportunity to know and observe the patient than a physician retained by the plan administrator."  The court added:

Reviewing Plaintiff's medical records and watching the surveillance videos, the Court did not reach the same conclusions as Dr. Gerstenblitt. That Plaintiff is  able to bend to put her walker in her car, to run errands or to stay at a restaurant for an hour does not establish that she is able to work an eight-hour-a-day job, especially one that requires her to spend most of her day sitting. Defendants provide no evidence showing otherwise. As Dr. Hine concluded, "Whether the patient, out of necessity, can occasionally do activities that might be routine in the work place seems to have little to do with whether she can sustain such activities. Flares of pain are quite detrimental to one's focus and ability to perform cognitive tasks." Hine Report, p. 12. Therefore, after reviewing all of the evidence in the administrative record, the Court concludes that Plaintiff has established that she is entitled to an award of benefits. Further, these benefits are to continue until such time as her entitlement to such benefits shall change or terminate pursuant to the terms of the long term disability plan. *30-*31.