Disability claims will falter without specifics
Chicago Daily Law Bulletin
September 8, 2004
by MARK D. DEBOFSKY
The 9th U.S. Circuit Court of Appeals' ruling in Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 2004 U.S.App.LEXIS 10626 (June 1), is one of those cases where plaintiff lawyers are able to learn an important lesson even though this particular plaintiff was unsuccessful.
Vicki Jordan, an administrative secretary for Northrop Grumman, alleged disability due to fibromyalgia pain that prevented her from performing her job. Reviewing the claim under an arbitrary and capricious standard of review, the 9th Circuit upheld the benefits denial. Although the plaintiff's doctors, including a rheumatologist, diagnosed fibromyalgia, the doctors never responded to requests for narrative reports.
On appeal, only the internist wrote a cursory report stating the plaintiff was disabled due to fibromyalgia; however, the rheumatologist never submitted a report.
The insurer, however, had the file reviewed both by an internist and a rheumatologist, who reported that the severity of plaintiff's condition appeared moderate and should not interfere with work. Those reports were sent to the treating doctors for comment; and the treating rheumatologist responded with a short note that Jordan was disabled from her job as a secretary, but he never explained why.
Jordan submitted a second appeal but did not provide any new medical evidence; thus, the benefit denial was again upheld.
The District Court granted summary judgment to defendants; the appeals court affirmed. Applying a deferential standard of review which requires affirmance so long as the decision is grounded on any reasonable basis, the court found the benefit denial adequately supported. Although the plaintiff first challenged the standard of review, arguing that the defendant acted under a conflict of interest, the court found no evidence of a conflict, and even rejected the plaintiff's argument that a conflict was established by the insurer's demand for "objective" proof of a condition that cannot be objectively verified. The court explained that the diagnosis of fibromyalgia was not questioned; the issue was whether the condition left her disabled for work.
The court added that Jordan's physicians "could have responded to the administrator's request for further information with at least some answer explaining why the illness prevented Jordan from performing her work as a secretary. However, Drs. Nerendranath Reddy and Brian O'Connor merely reiterated their conclusory findings of disability. They did not answer the quite reasonable inquiry of the administrator.
"MetLife wrote in its final denial 'the record on hand shows you have been diagnosed with fibromyalgia, anxiety and depression. The documentation does not support an ongoing disability due to a mental/nervous condition or diagnosis.' That is not a judgment that she did not have fibromyalgia. It is a judgment that, although she had been diagnosed as having fibromyalgia, the record the administrator had did not show that she was unable to work because of it." *20-*21.
The court also rejected the plaintiff's argument that MetLife ignored the physicians' reports. The court pointed out that the both MetLife and the predecessor insurer, Travelers, had requested from the doctors an explanation as to why they thought Jordan was disabled, yet the doctors failed to respond other than to offer "their ipse dixit to substantiate the claim." *21. The insurer had the records reviewed by other doctors and then sent those doctors' reports to the treating physicians for comment but received no response. Hence, the court explained:
"Under our recent decision after remand in Black & Decker Disability v. Nord, 538 U.S. 822 (2003) we held that the failure of an employee's physician to respond to inquiries by the plan administrator undermined evidence in the petitioner's favor... Just such a failure occurred here. Thus we are bound to treat Jordan's treating physicians' opinions that she was disabled by her fibromyalgia as 'undermined,' which is to say less reliable or unreliable... Nord v. Black & Decker Disability, 356 F.3d 1008 (9th Cir. 2004) (order vacating opinion on remand from the Supreme Court and reinstating district court's opinion upholding denial of benefits).
"Somebody has to make a judgment as to whether a medical condition prevents a person from doing her work, and the governing instrument assigns the discretion to the claims administrator. With a condition such as fibromyalgia, where the applicant's physicians depend entirely on the patient's pain reports for their diagnoses, their ipse dixit cannot be unchallengeable. That would shift the discretion from the administrator, as the plan requires, to the physicians chosen by the applicant, who depend for their diagnoses on the applicant's reports to them of pain. That the administrator ultimately rejects the applicant's physicians' views does not establish that it 'ignored' them." *22-*23
Turning to the review of the merits of the claim, the court pointed out that in resolving a conflict in the evidence, the insurer cannot be said to have acted arbitrarily. In a key sentence, the court explained: "The administrator had before her conclusory statements from Jordan's doctors that she was disabled, and the relatively more thorough and careful opinions from the plan's doctors that, although she apparently suffered from the disease, she was not entirely disabled from working by it." *28-*29.
The court also wisely recognized that a "medical diagnosis does not by itself establish disability." *29. The court further cited to comments in the medical records about "no acute distress," "freely ambulatory," and reports of activities that suggested Jordan's pain was not severe, although the court did concede "a tough individual might perform such activities despite considerable pain." *30.
The absence of a detailed explanation from the treating doctors in support of their terse conclusions allowed MetLife to reasonably rely on the opinion of their reviewing doctor.
The case of Zavora v. Paul Revere Life Insurance Co., 145 F.3d 1118 (9th Cir. 1998), which the plaintiff relied on, was easily distinguished by the court. There, the plaintiff claimed disability due to pain resulting from a thorn buried in the back of his eye. The court overturned the insurer's benefits denial, but what distinguished Zavora were three factors:
- Unlike Zavora, Jordan's claim was referred to a medical specialist.
- The reports from the reviewing doctors were sent to the treating doctors for comment.
- In Zavora, the reviewing doctors' opinions were objectively unreasonable since they contradicted what the treating physician had observed on examination.
Because the treating doctors failed to do more than state their diagnosis and conclusion, without building a logical bridge between the two, the court ruled that MetLife's determination could not be characterized as arbitrary.
The 9th Circuit's analysis was direct and accurate. Although it cannot always be contended that the physician's failure to respond is evidence of concurrence, the virtual absence of detailed doctors' opinions supporting the claim made it impossible for the plaintiff to prevail. See Brenner v. Hartford, 2001 WL 224826, n. 10 (D. Md.): "Little significance can be attributed to Dr. Avin's unresponsiveness to defendant's request for comments as the lack of response could as likely be a result of inadvertence or inattention due to other pressing demands in a physician's schedule."
The case of Gooden v. Provident Life & Accident Insurance Co., 250 F.3d 329, 333-334 (5th Cir. 2001), offered almost the same conclusion: "While it is true that the record contains a letter from Dr. Causey stating that Gooden was disabled, this letter does not undermine Provident's decision, as it was written after Gooden learned he was being terminated, and was unaccompanied by medical evidence indicating that Gooden's condition changed since the last time Dr. Causey had seen Gooden. Consequently, Provident cannot be faulted for failing to give Dr. Causey's letter overriding significance in the face of medical documentation, including Dr. Causey's own reports, indicating that Gooden was not disabled."
Moreover, just to clarify, even if this had been a Social Security case with application of what is known in Social Security disability law as the "treating physician rule" (20 C.F.R. sec404.1527), cursory opinions of the treating doctors would not be entitled to deference based on the following:
"(e) Medical source opinions on issues reserved to the commissioner. Opinions on some issues, such as the examples that follow, are not medical opinions, as described in paragraph (a)(2) of this section, but are, instead, opinions on issues reserved to the commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.
"(1) Opinions that you are disabled. We are responsible for making the determination or decision about whether you meet the statutory definition of disability. In so doing, we review all of the medical findings and other evidence that support a medical source's statement that you are disabled. A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled."
Jordan is an excellent illustration both of what is helpful in proving a disability benefit claim as well as what is useful when an insurer evaluates the claim. Although it is sometimes difficult to secure comprehensive narrative reports from physicians, this case starkly points out that the absence of any meaningful opinions from the doctors involved in this case doomed the case to failure. MetLife afforded the claimant every opportunity to prove her case and she failed to do so.
In Gooden, the appeals court offered an excellent suggestion to plaintiffs facing the situation of a physician who merely provides conclusions without more: depose the doctor and place the deposition into the claim record.
The lessons to be learned are clear. First, a diagnosis alone is not enough to establish a disability; a physician's opinions as to the claimant's restrictions and limitations are essential.
Second, an opinion from the treating doctor merely reciting the claimant is "disabled" or is "unable to work" is not enough to sustain a claim. That opinion has to be backed up with detailed restrictions and limitations that are supported by the medical evidence. Because there was a failure on both counts in Jordan, the claim was doomed to failure.