Deferential, yes, but certainly not inconsequential
Chicago Daily Law Bulletin
April 18, 2005
by MARK D. DEBOFSKY
The 6th U.S. Circuit Court of Appeals recently served up a surprise: a comprehensive signed opinion that was issued as unpublished, even though it covers significant ground and makes precedential findings in the course of reversing a denial of disability benefits. Moon v. Unum Provident Corp., 2005 U.S. App. LEXIS 4775 (6th Cir., March 22).
Plaintiff Diane M. Moon, who held a clerical position at Borgess Medical Center in Michigan, alleged disability due to severe labile hypertension causing hospitalization, chest pain and thumb pain. Although her claim for disability benefits was initially granted, several months later, benefits were terminated based on Unum's claim that there was ''no medical data to support restrictions and limitations.'' The determination was based on opinions expressed by Unum physician Steven Feagin, M.D., who reported that Moon should be able to consistently perform light work despite her condition.
On appeal, Moon submitted records from her cardiologist and a workers' compensation award finding that bilateral thumb pain rendered her unable to perform her material job duties.
Feagin reviewed the file again and reasserted his initial findings. Although Feagin kept insisting on the lack of objective evidence supporting disability, the plaintiff submitted additional records, including documents from the workers' compensation proceeding and records from a successful Social Security disability claim that included the testimony of her treating doctor explaining the severity of Moon's hypertension and the basis of her opinion that Moon could not work. The testimony was quoted extensively in the opinion and supported disability due to hypertension regardless of work stress because of the extreme lability of Moon's condition.
The administrative law judge in the Social Security case also found Moon's testimony credible in concluding that she was incapable of working.
Feagin nonetheless rejected that evidence and strongly disagreed with the treating doctor, citing a report from a different physician submitted in the workers' compensation proceeding. However, Feagin disregarded that doctor's finding that Moon's blood pressure was uncontrolled and that her system was not responsive to medication.
Although the 6th Circuit recognized the applicability of a discretionary standard of review, the court described how that standard is administered:
''Nevertheless, merely because our review must be deferential does not mean our review must also be inconsequential. While a benefits plan may vest discretion in the plan administrator, the federal courts do not sit in review of the administrator's decisions only for the purpose of rubber-stamping those decisions. As we observed recently, 'the arbitrary-and-capricious standard does not require us merely to rubber-stamp the administrator's decision.' Jones v. Metropolitan Life Insurance Co., 385 F.3d 654, 661 (6th Cir. 2004) (citing McDonald v. Western-Southern Life Insurance Co., 347 F.3d 161, 172 (6th Cir. 2003)). Indeed, 'deferential review is not no review, and deference need not be abject.' McDonald, 347 F.3d at 172. Our task at all events is to 'review the quantity and quality of the medical evidence and the opinions on both sides of the issues.' ''
Applying those guidelines, the 6th Circuit concluded that Unum's decision was unsupportable. Although the court determined that Moon's thumb pain would not alone disable her, the court found the hypertension was severely disabling. The court deemed the treating doctor's opinion persuasive because of a lengthy treatment relationship and because the doctor ''has consistently offered detailed explanations for her conclusion that Moon is unable to work.''
The court carefully noted, though, that it was not giving deference to the treating doctor's opinion, but did point out that there were extensive reports from the doctor as well as her testimony from the Social Security hearing in the record. The only contrary evidence was Feagin's opinion, which the court characterized as ''a selective review of the administrative record.'' Moreover, the court pointed out that Feagin's role ''was not as a neutral independent reviewer, but as an employee of Unum.''
In setting out the court's role as a reviewing tribunal, the 6th Circuit posed the ultimate question of whether, in deciding the reasonableness of the plan's conclusion, ''the explanation to deny or terminate benefits makes sense.'' The court added, that when a plan administrator's explanation ''is based on the work of a doctor in its employ, we must view the explanation with some skepticism.''
Applying these principles, the court concluded:
''As we have discussed, there was a wealth of medical evidence available to Feagin. Rather than contend with the reality that all of the doctors who examined Moon agreed she had chronic and severe hypertension which was not susceptible to successful treatment, Feagin seized upon a single blood pressure measurement performed by a doctor who himself cautioned that Moon's hypertension appeared to be intractable. Unum does not present us with the opinion of any doctor, except Feagin's, to the effect that Moon's hypertension was not a barrier to returning to work.''
Accordingly, Unum's decision was overturned, although a dissent by Judge Eugene E. Siler Jr. opined that Feagin's opinion should have controlled under an arbitrary and capricious standard of review.
The 6th Circuit sensibly framed the issues in this case in a manner consistent with a deferential standard of review that binding precedent required the court to apply, but which injects rationality into court reviews of claims under the Employee Retirement Income Security Act.
Feagin may very well have been correct in his opinions, but Unum placed itself in an untenable position by taking the simple step of arranging for an independent evaluation given the way that the evidence lined up in this case. Unum further erred by not having a different physician review the claim as now required by the claim regulations (the claims process in this case occurred before the adoption in January 2002 of 29 C.F.R. §2560.503-1(h)(4) mandating for disability claims the requirements of 29 C.F.R. §2560.503-1(h)(ii) mandating a different decision-maker for the claim appeal).
Moon's counsel is to be commended for the manner in which the appeal was conducted, since it is obvious the court was impressed by the fact that the workers' compensation and Social Security claim records were in the disability insurance claim file. Moreover, the extent to which the treating doctor articulated her opinion, as well as the consistency in the treating doctor's reports, were clearly significant to the court; and by seeing the medical opinions arrayed in a fuller context, the court was able to confidently reject the insurer's conclusions.
From the manner in which the evidence was presented, it was clear to the 6th Circuit that the benefit denial did not ''make sense.'' Certainly, when all of the evidence from treating and examining sources line up in one direction, and the sole dissenting opinion is from a biased source who selectively reviewed the evidence, it became evident that Unum's decision was not reasonable. If Unum honestly believed in Feagin's opinion, it should have sought corroboration. Its failure to do so, even under a deferential standard of review, was fatal to its conclusion.
There is more to this story, though. The claimant here was fortunate to have had the benefit of both a workers' compensation and a Social Security claim record to present to the court, which contained medical reports, testimony and, most important, cross-examination.
A ruling like this points the finger at the continued irrationality of treating these ERISA cases as if they were administrative claims like Social Security cases. The key difference, as pointed out in Herzberger v. Standard Insurance Co., 205 F.3d 327 (7th Cir. 2000), is that Social Security cases have well-developed hearing records in which the claimant's due process is preserved. ERISA disability claims are no less important than Social Security cases, and the loss of benefits at a time of great need can have financially devastating consequences to claimants.
The 6th Circuit was the first court that erred in applying an administrative law paradigm to ERISA cases, in Perry v. Simplicity Engineering, 900 F.2d 963 (6th Cir. 1990), according to the research I compiled in authoring ''The Paradox of the Misuse of Administrative Law in ERISA Benefit Claims,'' 37 John Marshall L.Rev. 727 (2004). By utilizing administrative law in ERISA benefit claims, claimants are denied discovery and face the impossible predicament of having to prove a decision is arbitrary and capricious when the court denies the claimant the means to present such proof.
We hope that Moon is eventually published, since another case involving a plaintiff with the same last name, Moon v. American Home Assurance Co., 888 F.2d 86 (11th Cir. 1989), expressed concern about administrative law creeping into ERISA litigation, and the time has arrived to restore sense to the adjudication of benefit claims.