This article was published in the Chicago Daily Law Bulletin on December 2, 2015.
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.
Pain is often a key factor in disability claims. The Social Security Administration has established guidelines for the assessment of pain as a factor in determining disability (20 C.F.R. Section 404.1529), and the influential Guides to the Evaluation of Permanent Impairment (6th edition 2008) published by the American Medical Association looks to the following:
- Congruence of symptom complaints with established conditions.
- Consistency over time and situation.
- Consistency with anatomy and physiology.
- Agreement between observers.
- Lack of inappropriate illness behavior.
A recent ruling from a federal court in Massachusetts, Young v. Aetna Life Insurance Co., 2015 WL 7194812 (D. Mass., Nov. 16, 2015), addresses the importance of consideration of pain in assessing disability. In an extremely instructive opinion, the court overwhelmingly rejected a disability insurer's termination of disability benefits due to the insurer's failure to give adequate consideration to the claimant's pain complaints.
The case involved Susan Young, who had worked as a staff nurse at Children's Hospital Boston until she was seriously injured in a 2008 car accident. Her injuries were aggravated by a second car accident in 2009, and she underwent several surgeries to repair a shoulder and her hips. However, her primary disabling complaint was severe chronic pain.
Although Aetna, the employer's group disability insurer, approved Young's long-term disability benefit claim, it later terminated her benefit payments after finding her capable of performing an occupation that was commensurate with her skills and training and would pay a wage comparable to her pre-disability earnings. Aetna's decision and ensuing reaffirmance of its finding was based on a succession of file reviews performed by three physicians who are regularly retained by disability insurers - Drs. Leonid Topper, Malcolm McPhee and Frank Polanco.
The U.S. District Court found Aetna's determination was the result of an abuse of discretion and awarded benefits to Young.
The court described this case as one "in which the claims administrator failed to provide reasoned support for its conclusions and ignored credible evidence of disability, choosing instead to rely selectively on discrete findings, which appear reasonable when sewn together to form a termination letter, but are highly questionable when viewed in the context of the entire record."
In contrast to Aetna's conclusions, the court found the treating doctors' records "formed a unified basis for plaintiff's claimed disability, which consisted of chronic, debilitating pain, stemming from a conglomeration of potential sources."
The court criticized Topper for focusing solely on neurologic deficits while ignoring pain, and observing, "[T]he fact that plaintiff's pain remains incompletely explained - and is not decidedly neurological - does not render her symptoms any less severe. The record reflects that she has suffered from consistent, chronic pain since at least 2009, which limits her ability to sit, stand and ambulate. Dr. Topper's report simply does not address this issue."
The court then rejected McPhee's findings for much the same reason, finding his conclusions were "questionable in light of the other records upon which he supposedly based his opinion." The court was also dubious about McPhee's claim that one of the treating doctors was in agreement with his opinion that Young could work because the doctor's records were in profound disagreement.
Turning to Polanco, the court deemed his opinion unreliable because his rejection of Young's pain treatment specialist's report was without basis. Polanco had reported the treating physician failed to provide any clinical findings to support his opinions, no measures of strength, range of motion or endurance or movement capacity.
Although the court remarked that "at first blush" Polanco seemed to offer a "sound reason" to discredit the treating doctor, "[w]hen investigated in the context of the medical records, however, it becomes clear that the statement is not credible."
Contrary to Polanco's representations, the treating doctor did document tenderness, tightness and limited range of motion of the back, legs, hips, neck and arms. Most significantly, though, Polanco's opinion focused solely on Young's mechanical abilities but ignored her pain and discomfort altogether.
The court also determined that Aetna abused its discretion by ignoring the effect of the plaintiff's chronic medication use on her ability to perform a full-time sedentary occupation. The court deemed the medication issue "a critical component to the determination of whether plaintiff is capable of performing 'any reasonable occupation' at the target wage rate." Because of the sedation effect, Aetna needed, but failed, to assess whether Young could mentally perform full-time sedentary work.
"This is not a hypothetical inquiry; chronic pain requires chronic medication and this medication would have to be increased if plaintiff spent more time doing activities that exacerbated her pain," the court added. "Aetna's naked reliance on Dr. Polanco's dismissal of this issue constitutes an abuse of discretion."
Consequently, the court ordered Aetna to reinstate Young's benefits.
The most interesting aspect of this opinion is how the court peeled away the veneer of reasonableness that Aetna placed over its decision to find that it repeatedly ignored the issues underlying the claim.
Given the consistency in the documentation of treatment for chronic pain, the court was obviously deeply troubled by Aetna's cavalier dismissal of that aspect of the claim. And while the absence of specific musculoskeletal or neurologic findings could be significant in a claim involving such disorders, the court astutely pointed out that such issues may be meaningless in other circumstances.
The court's discussion of the impact of medication was also critical because that issue, while significant, is often overlooked by disability insurers. For someone in chronic pain, the choice is often between enduring severe pain that limits basic activities or taking sedating medication with its attendant side effects. This is a revealing and thoughtful ruling on several critical issues in disability evaluation.