ERISA - Objective Evidence Archives

Court Determines That Recognized Medical Conditions Without Objective Proof of Disability Will Still Support a Claim for Long-Term Disability Benefits

Claimants for long-term disability benefits often face an uphill battle with their insurers when their recognized medical condition lacks the kind of objective proof found in x-rays or blood work and instead, rely on the claimant’s subjective self-reports to their treatment providers. In one recent case, Vicky Myers v. Aetna Life Insurance Company, et al. 2020 WL 7423109 (2020), the U.S. District Court for the Central District of California found the insurer improperly based its denial of benefits on such a lack of objective evidence where the claimant was diagnosed and treated for fibromyalgia, chronic fatigue syndrome, and other conditions.

In 2003, Vicky Myers was experiencing pain, fatigue, and memory problems and was later diagnosed with fibromyalgia and chronic fatigue syndrome. She began suffering from reduced cognitive ability in April 2017, which made it difficult for her to do her job as a Software Management Engineer. At the time she was often working 12 to 14 hours a day managing at least six projects. She increasingly had trouble remembering, solving problems, and was more likely to make mistakes. Myers also experienced increased fatigue and muscle and joint pain requiring her to rest most of her weekends. In January 2018, Myers stopped working due to her health conditions.

Myers sought treatment from a variety of physicians and specialists who concluded that her worsening medical conditions meant she could no longer perform the duties of her job. Myers began occupational therapy for her chronic fatigue syndrome in February and her therapist put her on a plan to increase her executive functioning and problem solving skills. She began seeing a psychiatric therapist who noted Myers “had difficulty concentrating, intense and recurrent lethargy, extreme fatigue, and forgetfulness.” Another doctor noted Myers’ complaints of dull and constant body pains and that nothing seemed to alleviate her fatigue.

Myers submitted a claim for long-term disability with her employer’s insurance plan administered by Aetna and governed by the Employee Retirement Income Security Act (“ERISA”) in June 2018. Along with the claim application, Myers submitted statements from her treating physicians and specialists which described her medical conditions and said she was unable to concentrate, and could not work. Myers spoke with an Aetna representative and repeatedly emphasized that her cognitive decline was the biggest problem.

Aetna reviewed medical notes from Myers’ doctors and conducted its own review. A behavioral health clinician determined there was no evidence of a mental health impairment based on a review of the medical records and a call with Myers during which the clinician felt Myers “had no immediately apparent functional impairments ….” A nurse clinician also reviewed the medical records and stated there was no showing of “any organic cognitive loss or physical functional loss” because of Myers’ reported conditions. Aetna subsequently determined Myers was not disabled under the long-term disability policy and denied her claim in September of 2018.

In April 2019, Myers’ attorneys informed Aetna that she was appealing its denial. Myers submitted additional medical records including a report from a neuropsychologist stating Myers had a decline in visual memory and executive functioning, and her “cognitive difficulties interfere with her capacity for independence in daily life.” Additionally, she submitted a vocational assessment that found Myers was unable to perform her occupation. Finally, another doctor who had been treating Myers for a year stated she was completely unable to perform her job duties because of her conditions, particularly her neurocognitive impairment.

Aetna had Myers’ file peer reviewed by three third-party doctors. Two of the doctors did not discuss Myers’ cognitive issues but concluded the medical records did not show objective support for a claim of impairment, such as physical exams or testing. One doctor stated that, while fibromyalgia could result in subjective discomfort, there was no basis for restrictions on daily living or any functional impairment. Another emphasized the records were inconsistent because some of Myers’ doctors said she appeared normal during visits and her test scores were variable. Based on this inconsistency, the doctor concluded there were no confident findings of impaired cognitive function. Aetna denied Myers’ appeal in October 2019 and her attorneys filed suit in the U.S. District Court for the Central District of California.

Following a bench trial on the administrative record, the court issued its findings of fact and conclusions of law. Under a de novo review of a challenge to an insurance company’s denial of benefits under ERISA, the court had to determine if Myers had established that she was disabled under the terms of the policy. The court also noted that the relevant provisions of Aetna’s policy focused on Myers’ ability to perform the duties necessary to do her job so proving Myers’ suffered from her medical conditions was not enough, she had to prove that those conditions also caused a disability affecting her ability to do her job.

Despite Aetna’s arguments about the lack of objective evidence, the court recognized that Myer’s conditions of chronic fatigue and fibromyalgia “are all difficult to measure objectively through tests or other evaluations” and doctors must rely on their patient’s descriptions of their conditions and other subjective information.

The court quoted from Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 678 (9th Cir. 2011) that “[m]any medical conditions depend for their diagnosis on patient reports of pain or other symptoms, and some cannot be objectively established until autopsy. In neither case can a disability insurer condition coverage on proof by objective indicators such as blood tests where the condition is recognized yet no such proof is possible.” Id. at 678. Additionally, the court quoted from the Seventh Circuit’s holding in Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758 (7th Cir. 2010), “noting that for conditions like fibromyalgia, the court has ‘rejected as arbitrary an administrator’s requirement that a claimant prove her condition with objective data where no definitive objective test exists for the condition or its severity.’” Id. at 769.

Under ERISA, Aetna was not required to perform in-person medical evaluations. Nonetheless, the court was not persuaded by Aetna’s third-party doctors following their “paper” file review. The court discounted the conclusions to the extent they relied on inconsistencies in the records finding “such inconsistencies do not automatically negate any medical condition” nor do they show that Myers is unreliable and making a false claim. As noted above, two of the doctors did not even address Myers’ cognitive function, which was the main problem affecting her ability to work. Finally, the court found that one of the doctors unfairly minimized the effects of fibromyalgia by suggesting it cannot cause a disability, which is contrary to the Ninth Circuit’s holding in Salomaa and other cases. The court found credible the reports of Myers’ numerous treating physicians and specialists who concluded she was unable to work and that they were not only reliable measures of Myers’ medical condition, but also her ability to work.

The court found Myers’ met her burden of showing an entitlement to disability benefits and that her fibromyalgia and chronic fatigue interfered with the level of mental functioning necessary for her to perform the duties necessary for her job.

The findings in Myers are significant for those seeking long-term disability benefits for recognized medical conditions that do not provide the level of objective proof that insurance companies demand. The lack of such evidence may not be a bar to entitlements where statements by treating physicians and specialists are credible and support a finding of disability.

McKennon Law Group PC has significant experience in handling ERISA and non-ERISA insurance cases in which an insurer denied a claim. If your insurer or plan administrator has denied your claim, please contact us for a free consultation so that we may assess your matter.

National Football League (“NFL”) players are covered by an employer-sponsored long-term disability (“LTD”) policy called the Bert Bell/Pete Rozelle NFL Player Retirement Plan (“Plan”). This NFL Plan, like most employer long-term disability plans, is governed by ERISA. Therefore, disabled NFL players face many of the same evidential challenges as company-bound employees when filing a claim for disability. These similarities are evidenced in the recent decision, Dimry v. Bert Bell/Pete Rozelle NFL Player Retirement Plan, 2020 WL 5526607 (N.D. Cal. Sept. 15, 2020)(“Dimry”). The court held in Dimry that Plan administrator (“Bert Bell”) abused its discretion when denying Mr. Dimry’s disability claim primarily for the following reasons: (1) Bert Bell did not provide Dimry with a “full and fair” review; (2) Bert Bell demanded “objective evidence” which was not required by the Plan; and (3) Bert Bell failed to consider Mr. Dimry’s Social Security award.

Dimry originally filed a complaint against Bert Bell to recover LTD benefits in 2016. Shortly after, the Social Security Administration (“SSA”) found that Dimry had been disabled since 2012. The district court found that Bert Bell had abused its discretion when it denied Mr. Dimry’s LTD claim because it ignored two reports from Mr. Dimry’s treating physicians in favor of two so-called “neutral physicians” who were paid almost $300,000 by Bert Bell to review claims. The district judge found in favor of Dimry finding Bert Bell had abused its discretion since the denial of Mr. Dimry’s benefits claim was “based upon an unreasonable bias in favor of Plan-selected physicians” and remanded the matter to Bert Bell to re-evaluate Mr. Dimry’s disability claim. On remand, Bert Bell relied on the Plan’s medical director, Dr. Jackson, who opined that Mr. Dimry’s primary impairment appeared to be pain and subjective complaints that were not supported by objective evidence. Relying on Dr. Jackson’s report, Bert Bell again denied Mr. Dimry’s claim. Another lawsuit followed.

Dimry first argued that there was a conflict of interest because the three physicians who had reviewed his claim were biased since the first two physician reviewers had been paid almost $300,000 and Dr. Jackson had been paid $223,000 by the Plan. The court explained that “Even apart from any issue preclusion that may apply given the Dimry I court’s findings, under Demer ‘[t]he magnitudes of these numbers, particularly when combined, raise a fair inference that there is a financial conflict which influenced the [the physicians’] assessments.’ Demer, 835 F.3d at 902.”

Dimry next argued that he was excluded from Bert Bell’s “review of his claim following the remand in violation of the requirement that there be ‘a meaningful dialogue between ERISA plan administrators and their beneficiaries’ and that the Plan give a ‘full and fair review’ to an appeal of an adverse benefits determination.” A full and final review requires giving the claimant an opportunity “to submit written comments, documents, records, and other information relating to the claim for benefits” and provide the claimant with any new or additional evidence, as soon as possible, to give the claimant an opportunity to respond. In Dimry, not only did Bert Bell not provide Dr. Jackson’s report to Mr. Dimry, Bert Bell never informed Dimry that it was consulting Dr. Jackson or that he was issuing a report which it intended to rely on. The Court held that by excluding Dimry from the renewed review, Bert Bell was in violation of “the rule that there be a meaningful dialogue between ERISA plan administrators and their beneficiaries.”

Next, Dimry challenged Bert Bell’s finding that the objective medical evidence did not support his claims of neck and back pain. Although Dr. Jackson opined “that Mr. Dimry’s pain complaints could be accurate despite not being fully supported by the objective medical evidence given the nature of his impairment,” Bert Bell made no attempt to follow up with Mr. Dimry’s complaints of pain. The Court agreed with Dimry that requiring objective evidence to support his pain complaints was “illogical and without support in inferences that may be drawn from the facts in the record.” First, the Plan did not contain language limiting benefits to claimants that can provide objective evidence to support subjective complaints of pain. Second, the Court found that while Bert Bell “may consider the lack of objective medical evidence in making a benefits determination, ‘reliance on objective evidence can be problematic for medical conditions that are not amenable to objective verification.’”

Lastly, Dimry insisted Bert Bell abused its discretion when it failed to acknowledge Mr. Dimry’s social security award. In response, Bert Bell attempted to assert the following justifications for disregarding the SSA’s award decision: First, the SSA was somehow incomplete as it did not have and/or consider the Plan’s physician’s reports when it made its determination. However, the court did not find this argument convincing. Instead the court found Bert Bell “acted as an adversary, not a fiduciary,” and stated Bert Bell’s rejection of the SSA “is particularly striking where, as here, [Bert Bell’s] non-disability finding was based on the absence of objective evidence, and the [SSA] discussed the objective evidence in Mr. Dimry’s Social Security file at length – none of which Dr. Jackson reviewed.” Second, Bert Bell contended that since Mr. Dimry’s social security was rejected twice before it was granted, this constitutes evidence that reasonable minds could differ as to whether Dimry was disabled and precludes a finding that Bert Bell’s finding of no disability was arbitrary. The court again disagreed and explained, “[w]hile [Bert Bell] was not required to accept the [SSA’s] opinion, it had to consider it and explain why it was not persuasive.” Third, Bert Bell claimed that “[t]he Social Security decision turned on factors that are irrelevant to a finding of total and permanent disability under the Plan, such as [Mr. Dimry’s] education and work experience.” The court also rejected this argument stating that based on the relevant medical evidence, Mr. Dimry’s education and/or work experience had “nothing to do [with] whether the medical evidence fully supported Mr. Dimry’s pain complaints.” Finally, Bert Bell argued that it, unlike the SSA, was not required to give substantial weight to Mr. Dimry’s treating physician. While the court agreed that Bert Bell was not bound by the SSA’s treating physician rule, Bert Bell was also not allowed to simply discount the SSA’s ruling.

The lawsuit eventually resulted with the Court’s finding that Bert Bell had abused its discretion and remanded Mr. Dimry’s case back to Bert Bell for a renewed evaluation of his claim. The Court also stated that it “expects that once [Bert Bell] gives Dimry the full and final review ERISA requires, and eliminates the mandate of objective evidence – a mandate not in the Plan and not in Dr. Jackson’s reports – that Dimry will be found disabled under the Plan.

We often see LTD claims denied without a full and fair review provided to our clients. We often see plan administrators/insurers who use biased physicians who conduct cursory paper reviews, who wrongfully rely on the lack of objective evidence to deny LTD claims and who do not meaningfully address favorable SSA determinations. If you believe your LTD claim was denied without a full and fair review for any of the reasons discussed above, please contact us for a free consultation by calling our office at 949-387-9595 or completing the contact form on our website.

In this several-part blog series titled The Basics of an ERISA Life, Health and Disability Insurance Claim, we discuss the basics of an ERISA life, health, accidental death and dismemberment and disability claim, from navigating a claim to handling a claim denial, through preparing a case for litigation. In Part Eleven of this series, we discuss personal statements from claimants and third-party witness statements in support of a claimant’s disability, which can help to support a disability claim that is based upon subjective symptoms like pain and fatigue.

We often see claimants who suffer from subjective conditions like Chronic Fatigue Syndrome, fibromyalgia or generalized chronic pain face difficult hurdles in getting their disability benefits paid precisely because of the subjective nature of these conditions. See our blog post regarding our recent trial victory in DeVries v. Aetna in which our client suffered from Chronic Fatigue Syndrome.

Under the Employee Retirement Income Security Act of 1974 (“ERISA”), judicial review of an insurer’s denial of benefits is typically limited to the administrative record that existed at the time the appeal was denied. After a complaint has been filed in federal court against an insurance company, generally, very limited discovery is allowed, and witnesses are normally not permitted to testify. Therefore, before an insurer reaches an appeal decision, it is important that the claimant submit as much information as possible to the insurer in support of their disability. For conditions like depression, chronic headaches, chronic pain, Chronic Fatigue Syndrome, fibromyalgia and other ailments, it may be impossible to supply objective evidence to prove that one suffers from these conditions. Because of this, courts recognize the importance of personal statements and third-party witnesses in support of a disability claim.

The Ninth Circuit’s recent decisions require insurers and the courts reviewing disability claim denials to take these types of statements into account when deciding an employee’s claim, including the claimant’s subjective self-reports of their symptoms and pain level. In a fairly recent long-term disability insurance case governed by ERISA, Kibel v. Aetna Life Ins. Co., 725 F.App’x. 475 (9th Cir. 2018), the Ninth Circuit emphasized the importance of these statements. In Kibel, the claimant, Margueritte Kibel, submitted a personal statement to her disability insurer Aetna regarding the subjective symptoms that she suffered, such as pain, fatigue and other such complaints. The court found that “the district court clearly erred in failing to consider the personal statement that Ms. Kibel submitted explaining that her fatigue did, in fact, render her totally disabled.” In her personal statement, Ms. Kibel described her fatigue as “an overpowering feeling of extreme tiredness, exhaustion, [and] weakness[.]” In this personal statement, Kibel further explained how it left her “completely drained” and caused “a complete slowdown of [her] brain and body[.]” The Court found that this evidence in the form of Ms. Kibel’s own personal statement, when appropriately considered, further supported a finding that Ms. Kibel’s condition prevented her from performing the duties of her occupation. For that reason, the Ninth Circuit reversed and remanded, and instructed the district court to direct an award of benefits to Ms. Kibel and conduct any further proceedings consistent with the order.

The Kibel court relied on the Ninth Circuit’s opinion in Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 904‑07 (9th Cir. 2016)for the rule that both a district court and a disability insurer must “consider a claimant’s subjective account of pain” and corroborating friend/colleague statements when deciding whether she is disabled. See also Godmar v. Hewlett-Packard Co., 631 F.App’x 397 (6th Cir. 2015). In Godmar,the court considered the claimant’s statement that was submitted with his appeal, in which he explained that he was on morphine 24 hours per day, could no longer drive and slept more than 20 hours per day several times per week, to support a finding that the insurer had abused its discretion in denying benefits. Similarly, in Leetzow v. Metro. Life Ins. Co., 2016 WL 7324092, *12‑13 (C.D. Cal. Dec. 5, 2016), the court considered the claimant’s subjective personal accounts of her migraine-related pain and found that her policy did not require objective medical evidence to support her disability claim.

These findings are further supported by the Ninth Circuit’s holding in Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 678 (9th Cir. 2011), in which the court held that a “lack of objective physical findings” does not necessarily justify a denial of benefits; that is, a disability insurer may not condition coverage on proof by objective indicators such as blood tests when the condition is recognized even though no such proof is possible. In Salomaa, the court looked at a statement by the insured’s boss, who wrote that before his disability Samuel Salomaa “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.’” The court also considered a statement by Mr. Salomaa’s brother-in-law, who wrote that he got to know Mr. Salomaa when they were students at Harvard and MIT, that Mr. Salomaa had been very energetic and intelligent, but that more recently he had noticed that Mr. Salomaa had profound apparent changes in comprehension, ability to plan and stamina. His brother-in-law recounted the time when he “drove [Mr. Salomaa] and their daughter from Los Angeles to Arkansas. For the entire trip [Mr. Salomaa] was either fully or partially reclined in the back of their Honda Element… When stopping to eat, [Mr. Salomaa] could not manage to eat in the restaurant. I would go in to order the food, and then bring it back to [Mr. Salomaa] to eat in the car.” These accounts are compelling evidence of disabling conditions that can be hard to objectively measure, like Chronic Fatigue Syndrome, chronic pain syndrome, fibromyalgia and chronic migraines. In addition, observations made by persons with first-hand knowledge of a claimant’s disability must be considered by the administrator, but administrators rarely address or scrutinize these statements in their denials. Indeed, we typically see administrators ignore these types of statements. Courts often place emphasis on these omissions by administrators in choosing to overturn a denial of benefits.

Personal statements and third-party witness statements can be the difference between a denial and an award of long-term disability benefits; this was the case for Ms. Kibel. With this in mind, personal statements must be relevant to the circumstances and should include the following information: (1) a detailed description of the duties of your occupation as you performed them; (2) a detailed discussion of the history of your condition; (3) a detailed discussion of your symptoms; (4) how those symptoms, such as pain and fatigue, impact your ability to perform the duties of your occupation; (5) how your disability has also impacted your overall quality of life; and (6) a discussion of the things you could previously do but no longer can. It is also important that you write your own personal statement. It should sound authentic, and the best way to achieve that is by writing it in your own words. Moreover, because personal testimony is a form of proof that typically raises credibility issues, it is likewise important that you gather corroborating statements from colleagues, friends and family. We often see powerful corroborating statements from spouses who witnessed first-hand how the claimant has been affected by the disability, close friends who saw a marked decline in a claimant’s activity level or abilities or co-workers who could speak to a claimant’s work capacity both before and after the onset of disability.

Even though disability plan language rarely requires objective proof of conditions that are subjective in nature, we often see insurers deny disability benefits for claims based on such absence. At the appeal stage, it is important, often crucial, to send to the insurer a personal statement written by the claimant. In addition, witness statements from friends, family members or co-workers can have a powerful impact on a reviewing court when it assesses the credibility of the claimant. Given the lack of discovery in ERISA matters, these statements could mean the difference between a benefit denial and a favorable result.

We have significant experience in handling ERISA and non-ERISA disability insurance cases in which an insurer denied a claim based on a lack of objective evidence or a claimant has a disability condition that is subjective in nature and difficult to prove and measure. If your insurer or plan administrator has denied your disability claim, please contact McKennon Law Group PC for a free consultation so that we may assess your matter.

Medical Conditions Without Objective Proof Not an Automatic Bar to Long-Term Disability Benefits

Court Determines That Recognized Medical Conditions Without Objective Proof of Disability Will Still Support a Claim for Long-Term Disability Benefits

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