Inconclusive medical tests should not undermine benefits claim, court rules

This article was initially published in the Chicago Daily Law Bulletin on December 14, 2016.

By Mark D. DeBofsky
If a disability benefit claim is submitted without a specific diagnosis, does that prevent the claimant from qualifying for benefits?

That was the question answered by Graham v. Life Insurance Company of North America, 2016 WL 6958151 (N.D. Ga., Nov. 28, 2016), which ruled the absence of a definitive diagnosis does not necessarily pose an impediment to receiving benefits.

Plaintiff Cheryll Graham worked as a registered nurse for many years. After undergoing a total abdominal hysterectomy, Graham developed severe back and leg pain and applied for disability benefit payments. However, Graham's disability insurance company, CIGNA, rejected her claim because she failed to provide an exact diagnosis explaining the cause of her pain.

Imaging studies and other testing were essentially negative, however, Graham's pain persisted, and none of the treatments administered, which included a series of epidural steroid injections, succeeded in mitigating her pain.

After exhausting presuit appeals, Graham filed suit against CIGNA under the Employee Retirement Income Security Act. The court found in her favor. Although the court determined that Graham's case was difficult, the court was troubled by CIGNA's blanket dismissal of Graham's subjective complaints, recognizing that numerous cases had acknowledged that "pain-related disabilities, such as fibromyalgia or chronic pain syndrome ... [may not be] subject to diagnosis by 'objective' laboratory tests." (citing Oliver v. Coca Cola Co., 497 F.3d 1181, 1195 (11th Cir. 2007), rehearing granted and partially vacated on other grounds, 506 F.3d 1316 (11th Cir. 2007)).

The court also cited a case from the 3rd U.S. Circuit Court of Appeals, Mitchell v. Eastman Kodak Co., 113 F.3d 433, 443 (3d Cir. 1997), which ruled that it would "defeat the legitimate expectations of participants" to require the claimant to submit objective proof of symptoms that are inherently unmeasurable and which can only be corroborated by clinical examination findings, medical reports and the patient's own reports of her symptoms.

The court thus agreed with another U.S. District Court ruling from a neighboring district finding that a claimant's "subjective reports of pain ... should be considered in light of any objective physical findings that are available and other indications of credibility." (citing Babb v. Metropolitan Life Insurance Co., No. 5:06-cv-281 (CAR), 2008 WL 4426059, at *6 (M.D. Ga., Sept. 25, 2008)).

Applying that framework to the facts presented, the court ruled for Graham even though the MRI findings and other test results were minimal. The court found the claimant's complaints were supported by clinical examination findings and corroborated by the extensive pain treatment Graham had undergone.

And even though the cause of Graham's pain was unidentified, the court cited Meinke v. Computer Sciences Corp., No. 302CV286, 2004 WL 5345274, at *11 (S.D. Ohio, Sept. 20, 2004), which observed, "Rightly or wrongly diagnosed, a patient's condition is what it is, and if it is disabling, it matters little for purposes of ERISA [long-term disability] benefits what the medical term for it is."

Although the court deemed the comments in Meinke "a bit hyperbolic," the court explained the "reality in pain-based disabilities" requires consideration of both objective and subjective evidence.

The court also found the insurer's failure to evaluate Graham's claim in consideration of the exertional demands of her own occupation mandated a remand to consider both the objective and subjective evidence.

Although Graham's job was performed at the "medium" level of exertion, CIGNA determined she could perform a "sedentary" exertional level occupation, which the court found erroneous since the disability determination had to be made, according to the policy, based on Graham's ability to perform her regular occupation.

Despite minimal "objective" medical evidence, the plaintiff presented a strong work history and there was nothing in the record showing any apparent reason for Graham to fabricate her disability.

To be sure, insurers have a difficult challenge in evaluating disability claims that have minimal objective evidence supporting disability, but as the 7th Circuit recognized in Diaz v. Prudential Insurance Co., 499 F.3d 640 (7th Cir. 2007): "Diaz's testimony offers more than a long series of complaints spoken across the breakfast table. It demonstrates the kind of 'long history of treatment' that we have found relevant in the past in comparable circumstances:

"'What is significant is the improbability that [the claimant] would have undergone the pain-treatment procedures that she did, which included not only heavy doses of strong drugs such as Vicodin, Toradol, Demerol and even morphine, but also the surgical implantation in her spine of a catheter and a spinal-cord stimulator, merely in order to strengthen the credibility of her complaints of pain and so increase her chances of obtaining disability benefits.... ' Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004) (citation omitted).

"Taken in the light most favorable to the plaintiff, the evidence of Diaz's repeated attempts to seek treatment for his condition supports an inference that his pain, though hard to explain by reference to physical symptoms, was disabling."

Another important case on this issue is Gaylor v. John Hancock Mutual Life Insurance Co., 112 F. 3d 460, 467 (10th Cir. 1997), where the 10th Circuit held that when a claimant presented debilitating symptoms of a condition verified by clinical examinations and the opinions of treating physicians, the absence of a definitive diagnosis may not be used as the basis for a benefit denial since "[m]edicine is, at best, an inexact science, and we should not disregard the great weight of the evidence merely because objective laboratory diagnostic findings either are not yet within the state of the art, or are inconclusive."

These cases illustrate the complexity of disability determinations, especially when a finding of disability depends so heavily on an assessment of symptoms that are incapable of being measured such as pain or fatigue.

Obviously, the courts are not suggesting that insurers should simply accept claimants' allegations at face value. But neither should disability evaluators be permitted to flatly reject symptom reports merely because they are "subjective" or "self-reported."

- Note: I represented the plaintiff in the Diaz v. Prudential case cited above.