Courts differ over weighing pain credibility
Chicago Daily Law Bulletin
February 27, 2006
by MARK D. DEBOFSKY
Johnson, an accounting clerk for Wells Fargo, applied for disability benefits due to rheumatoid arthritis, which caused her significant pain, stiffness and diminished manual dexterity.
She originally received intermittent short-term disability leave from 2000 through 2002 before applying for long-term disability due to the rheumatoid arthritis, along with fibromyalgia, which was also diagnosed.
MetLife had the claim reviewed by Dr. Jeffrey Lieberman, a rheumatologist, who reported that Johnson should be able to work due to the absence of active synovitis or joint erosions, although the treating rheumatologist noted synovitis in the wrist and certified Johnson's disability due to limited walking and standing without significant pain. A bone scan was normal, however. A second doctor, Tracey Schmidt also reviewed the file for MetLife and found a lack of objective evidence of a physical impairment, leading MetLife to deny benefits. That determination was upheld both by the district court and the 8th U.S. Circuit Court of Appeals.
The main arguments centered around the issue of whether the plaintiff could qualify for benefits in the absence of objective medical evidence of disability. Citing its recent ruling in Pralutsky v. Metropolitan Life Insur.Co., 2006 U.S.App.LEXIS 1142 (Jan. 19), the 8th Circuit found no procedural irregularities and ruled that the issue depends on whether the benefit plan could be interpreted reasonably to require submission of objective evidence: ''The evidence a plan administrator may require to prove disability benefit claims depends on the terms of the plan and the circumstances of the case.'' *8 (citing Pralutsky). Finding that the policy's requirement of submission of ''documented proof'' of disability rendered it reasonable to interpret the plan to require objective proof, the court upheld the lower court's determination. The court added that fibromyalgia can be objectively diagnosed with trigger-point findings; thus, the court rejected the plaintiff's argument that defendant required proof that was impossible to obtain.
However, it appears the real rub in the case was that one of the plaintiff's treating doctors suspected that Johnson may have exaggerated her pain complaints.
The court further noted: ''Here, Johnson's subjective, uncorroborated complaints of pain constituted the only evidence of her ailments. All of the objective medical evidence in the record, including a bone scan, a grip test, and a tender-points test, indicates that she did not suffer from rheumatoid arthritis or fibromyalgia to the extent that they rendered her disabled.'' *11-*12.
Hence, the court found in favor of the insurer.
This case certainly presents a difficult question for a court to resolve: Where the claimant suffers from a medical condition for which there is no known laboratory or imaging test to either diagnose the condition or rate its severity, how is a court to assess the insurer's disability determination? The way in which the 8th Circuit resolved the dispute was to focus on what the objective testing did not show; i.e., there was no corroborative evidence consistent with the plaintiff's pain complaints. Ultimately, however, such an approach seems unsatisfactory and contrary to the function of courts.
Perhaps the best analysis of how courts determine disability claims based on pain was offered in the Social Security context by the 7th Circuit in Carradine v. Barnhart, 360 F.3d 751 (2004). Acknowledging that ''pain can be severe and disabling even in the absence of 'objective' medical findings, that is, test results that demonstrate a physical condition that normally causes pain of the severity claimed by the applicant'' (360 F.3d at 753 (citations omitted)), the court went on to cite Social Security case law holding that ''once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant's testimony as to subjective symptoms merely because they are unsupported by objective evidence.'' Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996).
Hence, the court warned, ''To insist in such a case, as the social security disability law does not ... that the subjective complaint, even if believed by the trier of fact, is insufficient to warrant an award of benefits would place a whole class of disabled people outside the protection of that law.'' Cooper v. Casey, 97 F.3d 914, 917 (7th Cir. 1996) (citations omitted); see 20 C.F.R. § 404.1529(b)(2).
Of course, Carradine also notes that pain complaints can be exaggerated, which puts a premium on the Social Security Administrative Law Judge's duty to evaluate credibility ''with great care.'' The court also cautioned, though, that an appropriate decisional framework must be applied because merely rejecting someone's credibility may not be enough - the claimant's pain may be due, in part, to psychological causes. Thus, the 7th Circuit looked at other critical factors - medications and other modalities used to control pain along with the improbability that the claimant is a good enough actress to fool a host of doctors and emergency room personnel into believing the claimant's pain complaints. The other factor of crucial importance, though, is ''the difference between a person's being able to engage in sporadic physical activities and her being able to work eight hours a day five consecutive days of the week.'' 360 F.3d at 755. Just because someone engages in physical activities on a sporadic basis is not grounds for concluding that they are capable of working at a job on a regular basis.
Applying these principles to the Johnson case, one has to be troubled by how the Court of Appeals falls back on MetLife's discretion to uphold MetLife's decision. Carradine was also reviewed on a deferential standard of review, yet the court conducted a penetrating enough analysis to find significant flaws in the administrative law judge's reasoning. Unlike a Social Security case where the plaintiff would have been given the opportunity to cross-examine witnesses, Johnson was faced with unassailable opinions from two physicians retained by MetLife who never examined her and which the court relied on to uphold the insurer's conclusions. While a trial might have led to a finding that Johnson is not disabled, she was denied the opportunity to present her case and have her credibility assessed by a trier of fact. The 7th Circuit observed in Van Boxel v. Journal Employees Pension Trust, 836 F.2d 1048, 1052 (7th Cir. 1987) that employees' benefit rights ''are too important these days for most employees to want to place them at the mercy of a biased tribunal subject only to a narrow form of 'arbitrary and capricious' review, relying on the company's interest in its reputation to prevent it from acting on its bias.'' ERISA was intended by Congress to be a paternalistic law (29 U.S.C. § 1001(b)); and the Supreme Court expanded on that theme in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989) when it ruled that claimants should not fare worse under the ERISA law than before its enactment. This case, which denied the plaintiff a full and fair consideration of her benefit claim, betrays those promises.
Johnson v. Metropolitan Life Insur.Co., 2006 U.S.App.LEXIS 3534 (8th Cir. Feb. 15).