This article was initially published in the Chicago Daily Law Bulletin on May 25, 2016.
By Mark D. DeBofsky
Mark D. DeBofsky is a name partner of DeBofsky, Sherman & Casciari, PC. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social Security law. He can be reached at email@example.com.
In reviewing disability determinations, a number of problematic issues appear with relative frequency. The recently issued ruling in Groth v. Centurylink Disability Plan, 2016 WL 1621724 (S.D. Ohio, April 25, 2016), contains a potpourri of such issues.
Plaintiff Stacie Groth claimed she was disabled due to lumbar degenerative disk disease, fibromyalgia, depression and anxiety. Despite submitting more than 1,000 pages of supportive medical records, her employer’s disability benefit plan administrator denied the claim following a consultant’s review of the records. The court overturned that denial.
Although the court found nothing per se objectionable about the defendant’s use of file reviews in place of examinations, the court was troubled by such conduct in this matter since there were behavioral health issues present.
The court thus questioned the file review based on Javery v. Lucent Technologies Inc. Long Term Disability Plan for Management or LBA Employees, 741 F.3d 686, 702 (6th Cir. 2014), which explained that such reviews in behavioral health claims are problematic "because, unlike other medical professionals, psychiatrists rely on subjective symptoms to treat the patient’s mental health condition."
Elaborating, the court observed: "Courts discount the opinions of psychiatrists who have never seen the patient for obvious reasons. Unlike cardiologists or orthopedics, who can formulate medical opinions based upon objective findings derived from objective clinical tests, the psychiatrist typically treats his patient’s subjective symptoms. … [W]hen a psychiatrist evaluates a patient’s mental condition, ‘a lot of this depends on interviewing the patient and spending time with the patient,’ … a methodology essential to understanding and treating the fears, anxieties, depression and other subjective symptoms the patient describes." (Citing Smith v. Bayer Corporation Long-Term Disability Plan, Nos. 06–6136, 06–6468, 275 F. App’x 495, at *508 (6th Cir., April 24, 2008) (internal quotation marks and citations omitted). See also James v. Liberty Life Assurance Co. of Boston, No. 13–2625, 582 F. App’x 581, 589 (6th Cir., Sept. 4, 2014) ("Unlike most doctors … a psychiatrist must treat a patient’s subjective symptoms by interviewing the patient and spending time with the patient so as to understand and treat the subjective symptoms described by the patient.").)
The court also noted the following citations: Haning v. Hartford Life & Accident Insurance Co., No. 2:14-CV-308, 2015 WL 5729342, at *12 (S.D. Ohio, Sept. 30, 2015), appeal dismissed (Dec. 1, 2015) ("Thus, without ever examining Haning, and in the face of directly conflicting evidence from her therapist, Dr. Givens concluded that she could return to work immediately. This approach adds to the evidence that Hartford’s decision was arbitrary and capricious."); Rohr v. Designed Telecommunications Inc., No. 2:08-CV-345, 2009 WL 891739, at *10 (S.D. Ohio, March 30, 2009) ("Plaintiff’s treating therapist specifically concluded that her depression prevented her from engaging in the required duties of her position … [the defendant insurer’s] rejection of these opinions, adds to the evidence before this court that its termination of plaintiff’s disability benefits was arbitrary and capricious."); Allen v. AT&T Disability Income Program, No. 3:08-CV-884, 2009 WL 2366418, at *14 (M.D. Tenn., July 29, 2009) ("[The claims administrator’s] dependence on the mental health evaluations provided by non-treating physicians was unreasonable, especially considering that it had the option to order an independent medical examination.").
The court also agreed with the plaintiff that the defendant’s file review evidenced "cherry-picking," since the defendant focused on "slivers of information" to support a benefit denial while ignoring the cumulative weight of the evidence.
The court was also critical of one of the reviewing doctor’s credibility findings in the absence of an examination — despite pain reports noted throughout the medical records, the reviewing doctor, Richard Kaplan, doubted the veracity of the complaints even though he had never examined Groth.
The court further determined that no consideration was given to the plaintiff’s ability to perform her job as a provisioning specialist. The court cited several cases for the proposition that in performing an own occupation evaluation of disability, the ability to perform the full range of duties required by the occupation at issue must be considered — Javery v. Lucent Technologies Inc. Long-Term Disability Plan for Management or LBA Employees, 741 F.3d 686, 702 (6th Cir. 2014) (collecting cases). See also Hunter v. Life Insurance Co. of North America, No. 10-1244, 437 F. App’x 372, at *377 n.3 (6th Cir., June 29, 2011) ("However, mere mention of Hunter’s job description, without analysis, is insufficient to demonstrate that these physicians actually considered Hunter’s ability to perform the physical demands of her prior occupation."); Elliott v. Metropolitan Life Insurance Co., 473 F.3d 613, 619 (6th Cir. 2006) ("[T]here is no indication that MetLife reasoned from Elliott’s condition to her ability to perform her occupation. … Instead, the denial letter is a mere recitation of medical terminology employed by various physicians in their diagnoses of Elliott’s condition, without any reasoning as to why those diagnoses would permit her to function in the workplace.").
Next, the court was critical of the defendant’s disregard of the potential impact of side-effects of the plaintiff’s medication on her ability to work.
The court found, "A failure to consider ‘the number and nature of the medications’ a plaintiff is taking may be one factor in determining whether or not a disability determination is arbitrary and capricious." (Citing Smith v. Continental Casualty Co., 450 F.3d 253, 265 (6th Cir. 2006)). See also Edwards v. Life Insurance Co. of North America, No. 3:07-CV-247, 2009 WL 693139, at *16 (E.D. Tenn., March 13, 2009) ("[T]he failure to address the other side effects of plaintiff Edwards’ medications on his ability to function weighs in favor of finding an arbitrary and capricious decision to the extent defendant LINA relied on Ms. Valentine’s review.").)
Based on the court’s findings on these issues, the court overturned the denial of Groth’s claim and remanded the case to the plan administrator even though there had been earlier proceedings which also resulted in a remand.
It seems unusual that the court would give the plan administrator another opportunity after it failed to conduct a proper claim evaluation initially and again after the first found of litigation.
Nonetheless, this opinion contains a nice summary of the law on several recurring issues that come up with frequency in disability benefit claims — file reviews of the medical evidence, cherry-picking, assessing ability to perform a particular occupation and the effect of medications on the ability to work.