Credibility should have been the issue in review

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Credibility should have been the issue in review

Chicago Daily Law Bulletin
November 12, 2007

by MARK D. DEBOFSKY

In Corry v. Liberty Life Assur.Co. of Boston, 2007 U.S.App.LEXIS 20605 (Aug. 28). the 5th U.S. Circuit Court of Appeals overturned a district court finding in favor of a claimant suffering from fibromyalgia, finding no abuse of discretion in the insurer's determination.

The plaintiff, who had worked as a sales manager for Dell, became disabled in 1995. She applied for disability benefits from Liberty, and her claim was approved. Social Security also granted benefits. A complete diagnosis of Corry's condition remained elusive, however. The parties agreed on diagnoses of seizure disorder, fibromyalgia and a rotator cuff sprain in her shoulder, but there was disagreement as to whether the claimant's acute pain symptoms were also attributable to chronic fatigue syndrome, lupus, Sjogren's syndrome, an undifferentiated or mixed connective tissue disease, or some other disorder.

During the course of the claim, several physicians treated Corry; and a physician retained by Liberty who concluded she was disabled due to chronic fatigue syndrome and was unable to work also evaluated her. However, the definition of disability changed from ''own occupation'' to an ''any occupation'' definition after three years of benefit payments; and Liberty again had Corry examined at the transition point. That physician concluded that while the plaintiff met the diagnostic criteria for fibromyalgia, he could find no objective evidence such as neurological or musculoskeletal limitations that would preclude employment; and a functional capacity evaluation (FCE) was recommended. Corry did not attend the FCE, though, because her physician advised that such an exam could cause a flare-up of her symptoms.

To further evaluate the claim, Liberty had Dr. Gail Brown review the file. Typically, Brown, who is frequently hired by Liberty, concluded there was a lack of ''objective medical documentation,'' and she also found no objective medical evidence sufficient to preclude the performance of sedentary work, although she, too, recommended a functional capacity evaluation. However, Liberty did not follow up on that recommendation; instead, it requested that Corry attend a neuropsychological evaluation. She refused based on her physician's advice that an extended evaluation could result in a flare-up of her condition. Based on her refusal, Liberty terminated the benefit payments. Liberty also subsequently obtained a rheumatologist's evaluation that concluded Corry could work at a sedentary job even though he credited the fibromyalgia diagnosis. Liberty also commissioned two labor market surveys. The first found her incapable of working in her geographic region due to an acknowledged inability to travel; however, the second survey, which encompassed the entire United States, found seven sales manager type positions that required no travel. Based on the second survey, Liberty upheld its determination. Plaintiff then filed suit, and was successful in the district court, obtaining a judgment awarding reinstatement of all benefits due through the date of judgment of June 1, 2005. Liberty appealed.

Although the court of appeals, reviewing the summary judgment grant de novo, applied reduced deference based on Liberty's structural conflict due to its dual role as insurer and administrator of the plan, the court nonetheless reversed the district court and upheld Liberty's findings. The court began its opinion by quoting liberally from the district court decision. The 5th Circuit wrote as follows:

''According to the district court, 'Liberty apparently refused to accord any weight to the subjective evidence of Corry's illness and instead relied solely on objective medical findings.' The district court found that 'no physician who properly accounted for both the objective and subjective evidence of Corry's limitations concluded that Corry is able to perform full-time sedentary work.' Furthermore, the district court emphasized the disparity between the medical opinions of Liberty's consulting physicians and the medical opinions of Corry's treating physicians, Norris and Dr. Paul Pickrell, who have repeatedly asserted in letters and affidavits 12 that Corry is unable to return to work. The district court concluded that by focusing on 'purely objective criteria,' Liberty abused its discretion.''

The Court of Appeals disagreed with those findings. The 5th Circuit expressed its agreement ''with the district court that all three consulting physicians expressed their conclusions that Corry was not disabled on grounds that her claimed disability was not medically verifiable, without offering an opinion on whether Corry's self-reported symptoms rendered her disabled.'' Nevertheless, the court pointed to places in the record which showed that Liberty did consider subjective complaints, concluding that ''although it is certainly true that Liberty's references to Corry's subjective complaints were less prominent than Liberty's emphasis on the lack of objective medical evidence of a disability, it is clear that Liberty's analysis considered Corry's subjective complaints of disability. Furthermore, Liberty accepted Corry's diagnosis of fibromyalgia without requiring objective evidence to establish the malady.'' The court therefore concluded that ''Liberty and its consulting physicians considered, evaluated, and addressed Corry's subjective complaints.'' The court cited a recent opinion, Gothard v. Metropolitan Life Ins. Co., No. 06-50386 (consolidated with No. 06-50564), 2007 WL 1830736, at *3 (5th Cir. June 27), for the proposition that even if the plan administrator's decision may not be correct, the court could not necessarily find it arbitrary. Thus, applying that principle, the court concluded:

''Here, the administrator, and the medical experts upon which it relied, understood and accepted the diagnosis of fibromyalgia; and they considered the subjective evidence Corry offered. It is true that the administrator did not accept the opinion of Corry's experts as to the disabling effects of her symptoms. However, given the three qualified medical experts who found no objective medical evidence of disability, the administrator, under the established standard of review that restricts the courts, was not obliged to accept the opinion of Corry's physicians. In this 'battle of the experts' the administrator is vested with discretion to choose one side over the other'' (citing Gothard).

The court then turned to the question of whether substantial evidence supported Liberty's conclusion. The court began that portion of the discussion by stating, ''On appeal, Corry does not argue that the consulting physicians' opinions, which found no objective medical evidence of disability, are inadmissible expert testimony; Corry only argues that the opinions are inadequate to establish a finding of no disability because they effectively disregard her subjective pain and resulting disability and should therefore be discounted accordingly.'' The court stated that it had already addressed that argument; and concluded the opinions of the three reviewing doctors constituted substantial evidence in support of Liberty's determination, adding:

''It seems indisputable that the medical opinions of Liberty's three consulting physicians, each of whom are specialists and qualified experts in fields specifically related to Corry's symptoms, constitute substantial evidence supporting Liberty's determination that Corry has no disability that would preclude her from performing sedentary work.''

Thus, the court found sufficient evidence to support Liberty's conclusion.

Surprisingly, no mention was made in the opinion about how other circuits have dealt with similar issues. For example, the 6th Circuit admonished in Calvert v. Firstar Finance Inc., 409 F.3d 286 (2005), that insurers have an incentive to contract with doctors who will support a denial of benefits and that the opinions of such consultants should not be readily accepted without closer examination. The court also failed to remark on the 7th Circuit's opinion in Hawkins v. First Union Corp., 326 F.3d 914 (2003), which credited subjective symptom complaints as supporting disability due to fibromyalgia and rejecting the opinion of a consultant who never examined the claimant. The 8th Circuit reached a similar conclusion in Chronister v. Baptist Health, 442 F.3d 648 (2006), which determined that clinical findings of trigger points in fibromyalgia constituted objective evidence of disability; and the 1st Circuit in Cook v. Liberty Life Assurance Co. of Boston, 320 F.3d 11 (2003), which ruled that imposing an objective proof requirement on the insured was unreasonable. Lemaire v. Hartford, 2003 U.S. App. LEXIS 13421 (3d Cir. June 30, 2003)(unpublished), likewise found that it would place an impossible hurdle on plaintiffs to require objective proof of disability due to chronic fatigue syndrome. The 6th Circuit has also expressed notable criticism of insurers' reliance on opinions from reviewing physicians who are making critical credibility determinations. See, Glenn v. MetLife, 461 F.3d 660 (6th Cir. 2006). After crediting the diagnosis of fibromyalgia, without evidence the insured was exaggerating or misrepresenting her complaints, Liberty therefore had no basis for terminating benefits.

The 5th Circuit's analysis seems to focus on the wrong issue. Although the court acknowledged that Liberty considered Corry's subjective complaints, the opinions of the reviewing doctors, all of whom are frequent consultants, all recited the mantra of no objective evidence supporting disability. However, that analysis asks the wrong question as witnessed by one court's observation as to the key issue of functional restrictions that led to quite a different outcome in another fibromyalgia case:

''When they are read together with the earlier medical records and reports, the following picture emerges: a man who is continuously drowsy and fatigued, unable to concentrate, unable to perform the most simple physical tasks, unable to stand, sit, or walk for more than an hour at a time, unable to work more than 15 hours per week, and unable to predict which hours he will be available, if at all. This court cannot imagine any occupation that such a person could fill successfully, much less an employer who would be willing to hire him.'' Ellis v. Egghead Software Disability Plans, 64 F. Supp. 2d 986, 995 (E.D. Wash. 1999).

Thus, the issue is one of credibility rather than specific medical findings. Since nowhere in this ruling is there even a hint that Corry was not a credible witness, crediting the consultants' conclusion of no objective evidence of disability fails to address the most important issues.

Perhaps one can account for the court's conclusion by reading between the lines and wondering whether Corry's refusal to attend the functional capacity evaluation may have accounted for the outcome. That makes no sense either. Several courts have specifically remarked on the uselessness of such testing for a condition marked by variable symptoms: Brown v. Continental Casualty Co., 2004 U.S.Dist.LEXIS 19164 (E.D.Pa. 2004) (FCE was a ''one time test ... [that] cannot hope to present a true picture of an illness characterized by variable symptoms.'' Ott v. Litton Industries, 2005 WL 1215958 (M.D. Pa. 5/20/2005); Crist v. Liberty Life Assur.Co. of Boston, 2006 U.S.Dist.LEXIS 26326 (S.D. Ohio 2006). Likewise, a district court found that a neuropsychological evaluation would be of questionable validity in evaluating a physical illness such as chronic fatigue syndrome in Sansevera v. DuPont, 859 F.Supp. 106 (S.D.N.Y. 1994).

Finally, the whole issue of whether a reviewing doctor's opinion may constitute ''substantial evidence'' needs to be fundamentally reexamined. The 5th Circuit remarked that Corry made no challenge to the admissibility of the consultants' opinions - if that is so, plaintiff's counsel missed an opportunity. The Supreme Court cautioned in Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 155 L. Ed. 2d 1034 (2003), that benefit determinations are to be made based on ''reliable'' evidence. Simply because a plan administrator retains a medical consultant, even one who practices in a relevant specialty, does not automatically mean the evidence is reliable. In the analogous context of Social Security benefits, only examining doctors' opinions may constitute substantial evidence according to Richardson v. Perales,402 U.S. 389, 402 (1971). In Richardson,the court deemed reports of examining doctors admissible in Social Security disability claims, finding the doctor's performance of a first-hand evaluation is crucial to the trustworthiness of the evidence. Gehin v. Wisconsin Group Insurance Bd., 278 Wis.2d 111, 692 N.W.2d 572, 590 (Wis. 2005) went even further by requiring that a doctor be subjected to cross-examination before his report may be accepted as substantial evidence sufficient to support a disability claim denial. Of course, in ERISA cases, that isn't feasible so long as the arbitrary and capricious standard is held to mean that the court's function is limited to review of a record. See, Perlman v. Swiss Bank Corp., 195 F.3d 975, 981-82 (7th Cir. 1999) (although the recent 7th Circuit decision in Diaz v. Prudential Ins.Co. of America, 2007 U.S.App.LEXIS 20067 held that under the de novo standard, ''the district courts are not reviewing anything; they are making an independent decision about the employee's entitlement to benefits.'')

Federal Rule of Evidence 602 requires, as a condition of witness competency, first hand knowledge. Although it is permissible under FRE 702 and 703 for a witness to testify as an expert without first hand knowledge, absent a clinical examination, the doctors in this case were not presenting reliable evidence in the same manner as a physician who is interpreting an x-ray or an electro-diagnostic test such as an electrocardiogram. Here, the physicians were merely reciting a mantra of ''no objective evidence,'' which is hardly an opinion based on the rigorous underpinning required by FRE 702. This point was emphasized in Sheehan v. Metropolitan Life Insur.Co., 368 F.Supp.2d 228, 255 (S.D.N.Y. 2005), a disability benefit case involving a psychiatric issue, where the court explained:

''Courts discount the opinions of psychiatrists who have never seen the patient for obvious reasons. Unlike cardiologists or orthopedists, who can formulate medical opinions based upon objective findings derived from objective clinical tests, the psychiatrist typically treats his patient's subjective symptoms.''

A fibromyalgia case is no different since objective findings are not derived from laboratory tests and the diagnosis itself is made clinically by applying pressure to specific areas of the body to elicit a response. See, Wolfe, et al., ''The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia. Report of the Multicenter Criteria Committee,'' 33 Arthritis & Rheumatism 160-72 (1990).

Accordingly, the charade of insurers' rejecting fibromyalgia claims through the use of non-examining consultants because of their confidence that such findings are insulated from challenge under an arbitrary and capricious standard of review must come to an end.

I was counsel for plaintiff in the Diaz v. Prudential case cited in this article.