The casenote of the month is from the Disability E-News Alert! a monthly newsletter describing new disability insurance developments. For subscription information, e-mail Mark DeBofsky or visit www.disabilityenewsalert.com .
Buford v. Unum Life Insur.Co. of >America, 2003 U.S.Dist.LEXIS 20521 (D.D.C. 10/29/03)(Issue: Scope of Review). Plaintiff, an employee of the Federal National Mortgage Corporation, applied for own occupation disability benefits in 1999 due to a spinal impairment and depression. Payments were made for approximately one year until Unum discontinued payments due to a lack of “objective data” supporting continued disability. After an appeal was unsuccessful, Buford filed suit.
Applying a deferential standard of review, the court upheld Unum’s determination. The court accepted the conclusion of Unum’s reviewers that the psychiatric symptoms were related to her particular work environment; not as to her occupation. As to the spinal impairment, both treating doctors opined that Ms. Buford would be able to return to her occupation. Although neither doctor furnished a return to work date, after undergoing surgery seven months before benefits were terminated, the records showed that the claimant had a good outcome from surgery and she remained stable thereafter. Plaintiff responded that the treating doctors continued to document persistent pain due to radiculopathy even following surgery; however, the court found that Unum’s decision was supported by the record as a whole although the court did point out Unum’s concession that its determination was based on opinions from its own employees and that notations of “unchanged” in medical records do not mean that a patient’s condition is improving. Finally, the court denied Unum’s request for attorneys’ fees.
Discussion: Although the evidence in this case might support a determination that Buford could not meet an “any occupation” definition of disability, the court bent over backward to give deference to Unum. While we try to be objective in our review of these cases, there is a troubling tone in decisions such as this case and other cases we have recently discussed (Graham v. L&B Realty Advisors, Inc., 2003 U.S.Dist.LEXIS 17272 (N.D.Tex. 9/30/03)(October 2003) and Glista v. Unum Life Insur.Co. of America, 2003 U.S.Dist.LEXIS 17457 (D.Mass. 9/30/03)(October 2003)) where the courts have mistakenly utilized an administrative law paradigm to uphold a denial of benefits. The court specifically referenced the administrative law substantial evidence standard that is used to evaluate social security cases – i.e., more than a scintilla of evidence but enough to support a reasoned conclusion. Such an approach is contrary to the purpose of the ERISA statute. Moreover, Social Security is a neutral federal agency that renders its determinations only after a hearing is conducted before an administrative law judge where claimants may present evidence and issue subpoenas to cross-examine the makers of adverse opinions.
Unum’s tactic of filing a motion for attorneys’ fees is unjustified. Unum should have lost this case; the only reason it didn’t was because the medical providers documented their patient’s condition from a treatment perspective, and did not write disability opinions in their medical charts. Then, when the doctors clarified their opinions after the benefit denial, Unum rejected those opinions as being post hoc. Unum also improperly drew inferences from medical chart notes, despite the doctors’ clarification of their opinions. However, it is well established that isolating chart notes cannot form the basis of a benefit denial. Thorpe v. Cont'l Cas. Co., 2002 U.S. Dist. LEXIS 24405, *12-13 (E.D.Pa. 2002) explains:
Nor is Dr. Saint's opinion that plaintiff's anxiety and depression had improved an opinion that plaintiff is not disabled, especially in the context of Dr. Saint's repeated expressions of her opinion that plaintiff could not return to work. In a case similar to this one, the Court of Appeals rejected the argument that a doctor's notation that a patient's depression was "much improved" was evidence that the patient was no longer disabled under the terms of his disability plan. Skretvedt v. E.I. DuPont De Nemours and Co., 268 F.3d 167, 182 (3d Cir. 2001).
Also see, Gawrysh, supra., 8 F.Supp. at 795 (“A single sentence indicating Ms. Gawrysh was feeling a "bit" better after starting a new medication does not indicate how Dr. Caldarelli viewed Ms. Gawrysh's medical problems.”). We hope to see this case appealed.
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