Insureds suffering from disabling conditions that cannot be objectively verified (for example pain, fatigue, migraines, and confusion) are often denied long-term disability benefits because of the difficulty of proving their claims.  In an attempt to deny a claim for disability benefits, a plan administrator will often assert that there is not enough objective evidence to support a disability classification under the terms of the policy.  Most often, these disabling conditions render the insured incapable of pursuing either their own occupation or any gainful occupation, and the insured’s condition satisfies the definition of total disability within the policy at issue.  However, insureds do not necessarily need to provide objective evidence of a disabling condition that inherently cannot be proven with objective evidence, even when satisfactory proof of such a condition is required by the policy.  Recently, Fernando M. Olguin, United States District Judge for the District Court for the Central District of California, outlined evidence an insurer must consider in determining whether an insured is entitled to disability benefits under ERISA due to a disorder that is not capable of objective proof.  Pamela Jahn-Derian v. Metropolitan Life Insurance Co., No. 2:13-cv-07221-FMO-SH, 2016 WL 1355625 (C.D. Cal. March 31, 2016).

In Jahn-Derian, the plaintiff was a Director of Risk Management and Patient Safety at a medical center.  Id at *2.  She suffered from severe neck and extremity pain due to cervical spondylosis, which ultimately required her to resign from her job.  Id.  MetLife concluded that despite Ms. Jahn-Derian’s injuries, there were no significant neurological abnormalities found upon physical examination, and thus seated, sedentary work should be possible.  Id at *3.  In support of her appeal, Ms. Jahn-Derian provided MetLife with letters from her doctor explaining that she was unable to return to work, a narrative explanation of her condition, letters from her friends and neighbors and letters from her colleagues describing their observations of the pain she was experiencing and her inability to perform her job duties.  Id at *5.  MetLife denied the appeal, stating that the medical information “lacked any significant objective exam findings that would support the extremely restrictive limitations” given by her doctor.  Id at *4.

The District Court reversed the plan administrator’s decision and granted Ms. Jahn-Derian disability benefits. Id at *12.  The court determined that the plaintiff’s pain allegations were supported by objective medical evidence because her pain was diagnosed as a symptom of her cervical spondylosis and her medical records reflect her complaints of severe pain.  Id at *8.  The court then stated that even if the plaintiff had not submitted objective medical evidence to support her pain allegations, it would not undermine her claim because subjective complaints can form the basis of a disability claim, even when no objective medical evidence is available to verify or measure the pain.  Id at *9.  The court then concluded that MetLife did not give adequate consideration to the letters from the plaintiff’s colleagues as they constituted competent evidence that must be considered in evaluating plaintiff’s symptoms and how her pain affects her ability to work.  Id at *10.

As demonstrated by the Jahn-Derian case, doctors who have regularly treated an insured are in the best position to observe the insured’s symptoms, intentions, and ability to work.  Id at *9.  Opinions of non-examining physicians, hired by the insurer only to review an insured’s records, are typically far less persuasive than the opinions of treating physicians.  This is why it is extremely beneficial when an insured obtains letters from their doctors not only describing the reported symptoms, but also providing a supported opinion on the insured’s inability to work and their perception of the insured’s credibility in reporting such symptoms.  As is often the case, the claims administrators such as the one in Jahn-Derian focus solely on the lack of objective evidence and fail to address whether the insured’s pain symptoms might affect his or her ability to adequately perform his or her occupation.  The Court pointed out that the inability to focus and concentrate due to ongoing symptoms must be considered in determining whether the insured can perform the substantial and material functions of her job.  Id.  The court stated that the letters from the insured’s colleagues regarding the effect of her symptoms on her ability to work “constitute competent evidence that must be considered in evaluating plaintiff’s symptoms and how her pain affects her ability to work.”  Id at *10.

As routinely recognized by the courts, subjective complaints can form the basis of a disability claim, even when no objective medical evidence is available to verify or measure the subjective complaint.  When denied disability benefits, an insured that lacks objective evidence of the severity of their symptoms should seek not only letters from treating physicians, but also letters from co-workers and friends who have observed their symptoms and can demonstrate that the insured’s symptoms negatively affect the insured’s ability to perform his or her job.

Short-term disability and long-term disability insurers very often deny claims for benefits by stating that the claimant’s alleged restrictions and limitations are not supported by the claimant’s medical records.  While a broad statement like this can mean a number of things, it often means that an insurer does not believe an insured’s complaints of pain or other subjective symptoms are disabling as they have not been proven by objective evidence.  However, insurers will rarely state in their denial letters that they do not believe an insured has the subjective symptoms reported because there is no objective proof of such symptoms.  Rather, they will typically ignore or downplay an insured’s subjective complaints and simply state that the medical records show that the insured can perform their occupational tasks and is thus not disabled under the terms of the policy.  However, as the Ninth Circuit continues to make clear, it is an error to require objective medical evidence of complaints that are inherently subjective in nature.  See Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 635 (9th Cir. 2009).

Recently, the District Court for the District of Oregon in Williams v. Reliance Standard Life Ins. Co., No. 3:15-cv-00589-HZ (D. Ore. February 22, 2016), made clear that insurers cannot dance around the fact that they are demanding objective proof of subjective complaints by simply disregarding an insured’s subjective symptoms.  In Williams, the insured, Randal Williams, applied for long-term disability insurance benefits with his insurer reporting symptoms of loss of vision, sweating, motion sickness, nausea, vomiting, and throbbing headaches.  Despite numerous treatments and examinations, doctors were unable to adequately treat or even diagnose the Mr. Williams’ condition.  Mr. Williams attended two independent medical examinations (“IME”) at the request of his disability insurer, and while both doctors indicated that Mr. Williams complained of visual disturbances, nausea, and headaches, they both explained that his subjective complaints were unaccompanied by objective clinical findings, and there was no objective functional impairment based on their examinations. The doctor that performed the second IME, Dr. Bell, specifically indicated that she was instructed to fill out the patient’s Physical Capabilities forms based on objective findings only, and indicated Mr. Williams did not have any limitations based on objective neurological findings.  She did, however, indicate that her primary diagnosis would be to rule out a possible somatoform disorder.

The insurer later discontinued Mr. Williams’ long-term disability benefits after the definition of disability changed from being unable to perform his duties in his “regular occupation” to being unable to perform duties in “any occupation.”   The insurer determined that Mr. Williams was capable of light work activity and he therefore no longer satisfied the requirement for total disability.   After Mr. Williams brought an action against his insurance company under ERISA to challenge the termination of his disability insurance benefits, his motion for summary judgment was granted.

In reaching its decision, the court relied on the District Court’s decision in Hegarty v. AT&T Umbrella Benefit Plan No. 1, 109 F.Supp.3d 1250, 1256 (N.D. Cal 2015) (which in turn relied on Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011)) for the proposition that “‘in cases where the claimant’s disabling condition is not one for which the medical community can provide objective evidence,’ it is arbitrary and capricious to deny the claim for lack of such evidence.”  See also.  The court noted that the insurer implicitly rejected Mr. Williams’ subjective reports of disabling symptoms by interpreting the reports and Physical Capabilities forms to support a finding that Mr. Williams could perform light or sedentary work.

The court then ruled that Mr. Williams’ insurer abused its discretion by relying on Dr. Bell’s diagnosis and assessment, as it was arbitrary and unreasonable to disregard Plaintiff’s subjectively-reported limitations, stating:

Defendant abused its discretion by relying on Dr. Bell’s diagnosis and assessment. First, Dr. Bell’s functional assessment was, as she indicated, based on objective evidence only. In fact, Dr. Bell stated that she had been instructed to complete the Physical Capabilities form on that basis. For the reasons explained in the previous section, it was unreasonable to disregard a functional assessment that did not account for Plaintiff’s subjective symptoms.

The court then held that the insurer erred in even considering Dr. Bell’s “actual rule out somatoform disorder diagnosis,” as it was “not a diagnosis at all, but a rule out, meaning a suggested diagnosis that must be ruled out.” (parentheticals omitted).  Because it was not a definitive diagnosis, it was unreasonable for Defendant to consider it.

As this decision demonstrates, insurers in the Ninth Circuit cannot rely solely upon objective findings when subjective complaints are at issue.  Insurers should only consider definitive diagnoses when making benefit decisions, even if a condition can only be observed through subjective complaints.  Despite the courts’ continued reiteration that insurers cannot demand objective evidence of medical conditions that are subjective in nature, either explicitly or through willful ignorance of subjective complaints, there is little doubt that insurers will continue to deny valid claims by discounting subjective complaints and requiring objective proof of them.