ERISA - Occupation Duties Archives

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

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.

A Disability Claim Must Be Evaluated In Light Of A Claimant’s Actual Duties Undertaken For His Or Her Occupation

A California Federal District Court has granted a motion for summary judgment under F.R.C.P. Rule 52 in favor of a disability claimant, holding that an insurer must consider a long-term disability (“LTD”) claim in accordance with the correct classification of the claimant’s “occupation” as determined by the claimant’s “actual duties.”

In McCulloch v. Hartford Life and Accident, 2020 WL 7711257 (N.D. Cal. 2020), the plaintiff suffered from “involuntary tremors and body jerking, fatigue, and cognitive impairment” that, inter alia, affected her ability to drive. Id., *1. The insurer denied the disability claim and ensuing appeal, whereupon the “plaintiff filed a complaint against [the insurer], alleging a cause of action under 29 U.S.C. § 1132(a)(1)(B) to recover LTD benefits under the terms of [the insurer’s] Plan.” Id.

The Court found that, after having been bitten by a tick, the plaintiff developed various symptoms, including an impairment of “cognitive capacity”, whereupon one of her physicians wrote to the insurer, “I believe that [claimant’s] health issues are serious and limiting. She cannot work because of cognitive impairment as corroborated by her decidingly [sic] abnormal SPECT scan.” Id., *4. The insurer, however, determined that plaintiff’s occupation involved “light work” in the workplace, and denied the claim on the ostensible basis that “plaintiff’s medical records ‘did not provide any objective exam findings or other assessments to support the severity of … symptoms’ and did not state specific work restrictions.” Id., *5. Although the plaintiff appealed on the basis of the reports of several health care practitioners, the insurer denied the appeal on November 20, 2019. Id., *7. Notably, on August 30, 2020, the Social Security Administration (“SSA”) awarded the plaintiff monthly benefits because “under SSA’s rules, [the claimant] became disabled on March 12, 2018.” Id., *8.

The Court observed, “the issue before this Court is whether plaintiff qualifies as disabled under the Plan’s ‘Your Occupation’ definition” and whether the plaintiff was disabled thereunder. Id., *7. The Court first addressed the plaintiff’s “occupation.” The term, “Your Occupation,” was defined in the LTD Plan as “the [e]ssential [d]uties of the job [claimant] is performing for [her] [e]mployer.” Id. Observing that a determination of disability must be based on the plaintiff’s “actual duties”, the Court held that the insurer applied the incorrect definition of “occupation;” rather than “light work” as proffered by the insurer, the plaintiff’s “occupation involved concentration, frequent driving, traveling by airplane, and keyboarding.” Id. *7-8.

The Court then concluded that the plaintiff was, in fact, disabled under the foregoing definition of “occupation.” The Court rejected the insurer’s assertion that the plaintiff’s “real problem seems to be that she found her job and lifestyle extremely stressful.” Id., *8. Rather, because “[o]bjective tests support plaintiff’s disability”, the Court concluded that “plaintiff’s condition prevents her from driving and significantly impairs her physical and cognitive ability” such that “the Court finds that plaintiff is disabled under Hartford’s LTD Plan.” Id., *8-9. In reaching this conclusion, the Court was not persuaded by the insurer’s consulting physicians, concluding that the consultants neither correctly addressed the actual work required of the plaintiff nor the effects of her disability thereon. Id., *9-10.

McCulloch underscores that a disability claim must be evaluated under the proper classification of a claimant’s “occupation” as determined by the claimant’s actual duties. In making this determination, evidence is relevant as to the effects of the disability on the tasks inherent to the claimant’s actual work. Accordingly, delineating the claimant’s actual duties may preclude an insurer from introducing evidence not relevant to the claimant’s “occupation.”

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.

A District Court Rejects Insurer’s Denial of a Long-Term Disability Claim Based Only on a Paper Review of Medical Records and Blind Adherence to the Dictionary of Occupational Titles

A “battle of the experts” is common in legal disputes. But what happens when your doctor determines you are disabled and unable to work, while the insurer’s doctor determines you are not disabled based on a review of your medical file, leading to a denial of your claim for long-term disability (“LTD”) benefits? Under the Employee Retirement Income Security Act of 1974 (“ERISA”), you may have a case for improper denial.

In a recent LTD insurance case governed by ERISA, Popovich v. Metropolitan Life Insurance Company, 281 F.Supp.3d 993 (C.D. Cal. 2017), Judge Andre Birotte explained the limitation of a paper review of a claimant’s medical record, as well as the limitation of relying solely on the definitions of occupations in the Dictionary of Occupational Titles (DOT). Below, we discuss Popovich; why the court found the insurer’s doctor’s opinion, which was based only a paper review, to be unpersuasive; and why it is important for an insurer to determine what a claimant actually does before it bases a claim denial on the material duties of a claimant’s occupation.

In Popovich, Plaintiff Kenneth Popovich (“Popovich”) filed a lawsuit against Metropolitan Life Insurance Company (“MetLife”) and Data Analysis, Inc. Employee Benefit Plan alleging that his claim for long-term disability benefits was improperly denied.

Popovich worked as an assistant news editor for Investor’s Business Daily for ten years. Popovich was responsible for writing and editing online news content for an organization that strived to publish stories and analysis within minutes of breaking news, creating significant deadline pressure. During his tenure working for Investor’s Business Daily, Popovich suffered a heart attack. He went on medical leave for 16 months to have bypass surgery and recover. He returned to work but continued to suffer from poor health.

Popovich went on another medical leave 11 months after returning to work. His second medical leave was less than two months before he returned to work on a part-time basis. Popovich returned to full-time work two weeks later, but after only two more months he was unable to complete his regular shift due to his poor health. That turned out to be his last day of work.

A couple of days later, Popovich saw his attending physician, Dr. Kedan, who indicated that Popovich suffered from a great deal of stress and panic attacks. Dr. Kedan diagnosed Popovich with cardiomyopathy, and advised Popovich to stop working. Dr. Kedan advised Popovich that he could eventually return to work, but his return to work date was unknown. Popovich filed a claim for LTD benefits based on Dr. Kedan’s diagnosis and physician statement.

MetLife’s medical director and nurse consultant reviewed Popovich’s medical records, noted improvement in specific tests conducted on Popovich and opined that Popovich should be capable of sedentary work. MetLife’s claim specialist recommended denial of Popovich’s claim based on insufficient evidence to support disability. A few days later MetLife completed a vocational analysis using only the description of the news editor occupation in the DOT, and denied Popovich’s LTD claim.

Popovich continued to be in poor health following the claim denial. Dr. Kedan recommended further treatment, stating that Popovich’s heart damage made him unfit for physical labor, and that he was not a good candidate for other sedentary jobs either because he suffered from chest pains while seated and exerting himself. Dr. Kedan concluded that Popovich was unable to resume any type of gainful employment.

Popovich appealed MetLife’s denial. MetLife then referred Popovich’s appeal to Dr. Sassower, an independent physician consultant who is board certified in cardiology. Dr. Sassower spoke with Dr. Kedan and reviewed Popovich’s medical records, but did not examine him. In his “paper review” report, Dr. Sassower concluded that Popovich’s test results should not have prohibited his return to work. MetLife accordingly upheld its prior denial of Popovich’s claim for long-term disability benefits.

In this case, the dispute came down to whether Popovich’s heart condition was sufficiently severe to prevent him from working in his usual occupation. The court ruled in favor of Popovich, ordered MetLife to pay his long-term disability benefits owed under the plan for the initial two years, together with prejudgment interest, and ordered MetLife to determine if Popovich met the plan’s criteria to continue receiving benefits beyond the initial benefit period.

The court ruled in Popovich’s favor for two main reasons. First, the court concluded that Dr. Sassower’s opinion was not persuasive because he only conducted a “paper review” of Popovich’s medical records and his report had several critical issues.

While Dr. Sassower is not required to examine Popovich in person, his report, based on a pure paper review, presented several critical issues. For example, Dr. Sassower misstated the diagnosis of Popovich’s heart disease in his medical records, and failed to cite any evidence to support a different, or new, diagnosis. Furthermore, Dr. Sassower selectively interpreted medical reports in Popovich’s file. He relied on certain reports to question the accuracy of some tests, but ignored the same reports when arguing that other tests were not sufficient to demonstrate disability. Additionally, Dr. Sassower was the only doctor in Popovich’s medical records to criticize Popovich’s medication regimen. It was not clear from the record that Popovich’s medication regime was lacking, as Dr. Sassower so claimed.

Finally, Dr. Sassower failed to explain why some of his conclusions differ from other doctors in the medical records. He did not provide evidence or reasoning to support his different conclusions. Taken all together, the court found Dr. Sassower’s opinion unpersuasive. The court found that Popovich’s medical records, including reports from Dr. Kedan and other specialists, demonstrated Popovich suffers from a significant heart condition, and that Popovich is unable to work at a physically and mentally stressful occupation.

Second, the court determined that MetLife did not perform a reasoned and deliberative vocational analysis because it only relied on the DOT’s description of a news editor. To determine if a claimant is able to work in their usual occupation, an insurer must conduct a reasoned and deliberative vocational analysis about the material duties of the claimant’s job. MetLife’s vocational analysis consisted solely of a verbatim reproduction of the DOT’s description of a news editor. The court noted that reference to the DOT is generally reasonable, but explained that the DOT’s description is outdated as it relates to this case. The DOT’s entry for news editor refers only to duties relevant to print media, and Popovich worked in a deadline-driven environment trying to publish stories and analysis online within minutes of breaking news. The DOT description of news editor and the reality of Popovich’s job as a news editor are fundamentally different. The court therefore found that MetLife erred by relying solely on the DOT and failing to consider what Popovich actually did before determining the material duties of Popovich’s occupation. Furthermore, MetLife’s blind reliance on the DOT limited its analysis to physical requirements of the job and failed to consider mental requirements. The court used Popovich’s, and his employer’s, description of news editor over the DOT’s description to define Popovich’s usual occupation.

After reviewing the entire Administrative Record, the court found Popovich submitted sufficient evidence to demonstrate he is disabled from working in stressful occupations. The court further found that Popovich’s usual occupation as an assistant news editor is stressful. The court thus concluded that Popovich was totally disabled from his usual occupation, and entitled to LTD benefits.

As detailed above, a pure paper review of a claimant’s medical records by the insurer’s doctor may not be enough to undermine a treating physician’s medical opinion. And an insurer reliance solely on the definition of a job from the DOT to determine material duties of a claimant’s usual occupation may not be a sufficient vocational analysis.

With this in mind, if your claim for long-term disability benefits is denied and the insurer did not conduct a medical exam, you may have a case of improper denial. Likewise, if an insurer makes a determination about the material duties of your usual occupation without someone talking to you or your employer, you may have a case of improper denial.

Components of an Individual Long-Term Disability Insurance Claim

When you purchase an own occupation individual disability insurance policy, the insurer promises to pay for total disability or residual disability in the event you are unable to perform the substantial and material duties of your occupation due to an injury or sickness. However, recovering under your disability policy may entail a multistep process as summarized below.

Step 1: Supporting Your Long-Term Disability Insurance Claim

Gather and request all relevant medical and occupational information. Your employer may need to provide information regarding your occupational duties and salary information. Health care providers may take anywhere from a few days to a few weeks to transmit your medical records. In the meantime, speak with your physicians/therapists about certifying your disability status in a letter to the insurer or by completion of an Attending Physician Form. Make sure your physicians/therapists understand your specific occupational duties (e.g., sitting or walking for prolonged periods, using a keyboard or specific tools, lifting requirements), so they have a clear picture of how your medical condition prevents you from performing these duties. A certification letter offers strong support for your disability, describing your medical condition and the objective and/or subjective proof of your medical condition, describing your occupational duties, and describing why your medical conditions render you unable to perform the substantial and material acts necessary to the performance of your occupation in the usual or customary way and with reasonable continuity.

Step 2: Filing Your Long-Term Disability Insurance Claim

Once you have obtained the necessary medical and occupational information necessary to support your disability claim, you must file a claim for disability benefits with your disability insurance carrier. If you do not have your disability policy handy, request a copy of from your insurer. The policy contains a description of your benefits and your insurer’s definition of “disability.” Review the insurer’s definition of “disability” and compare it with the California definition. Under California law, “total disability” means that the insured is unable to perform the substantial and material acts necessary to the prosecution of your occupation in the usual or customary way and with reasonable continuity. You need only satisfy the easier of the two standards to qualify for disability benefits under your individual policy. If you believe that you qualify, request and complete the required claim forms and submit them to the insurer. Many carriers now have the forms available online. Keep copies of all the documents you submit and all communications you have with the insurer.

Step 3: Monitoring Your Long-Term Disability Insurance Claim Status

The insurer must approve or deny your claim within 30 days following receipt of all necessary information. Note the insurer may request a 30-day extension by notifying you in writing within 30 days after your claim is filed. Similarly, if the insurer requests additional medical information, they may need to have another 30 days following receipt of the requested information to issue a decision on your claim. Therefore, the faster insurers receive your medical documents and support for your disability, the sooner they will render a decision on your disability insurance claim. Make a note on your calendar of the last correspondence you had with the disability insurance insurer, and call the insurer to check the claim status if you do not receive any updates within 30 days.

Step 4: Handling a Long-Term Disability Insurance Claim Denial

If your claim is denied, review the denial letter and note the reasons provided. Common reasons for denials include a lack of supporting medical documentation, the insurer’s determination that a medical condition is not severe enough to be disabling and/or that there is no objective evidence to support your disability. If you have additional supporting documentation, you may contact the insurer to submit additional information for an appeal, or another review of your claim. However, if your documentation supports your disability, and you suspect your insurer improperly denied your claim, consult with an experienced insurance coverage attorney such as the McKennon Law Group PC to determine whether you have a good case that the law firm will take on a contingency fee basis. If your insurer breached your disability insurance contract and/or acted in bad faith, an experienced attorney can help you recover not only the policy benefits, but also emotional distress damages, consequential damages, attorneys’ fees, pre-judgment interest and punitive damages.

McKennon Law Group PC is extremely well suited to litigate your ERISA and bad faith disability, health or life insurance claims. We are nationally recognized experts in insurance bad faith law and ERISA insurance claims, appeals and litigation. With offices in Los Angeles, Orange County, San Francisco, and San Diego, contact us today to learn how our attorneys can help you with your ERISA and bad faith insurance claims.

For additional information, please see our Disability Insurance FAQs and Insurance Bad Faith FAQs.

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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