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 .
Smith v. Champion Intl. Corp., 2008 U.S.Dist.LEXIS 65346 (D.Conn. August 26, 2008)(Issue: Fibromyalgia). This unbelievably long opinion involved 14 disability claims submitted both by salaried and hourly employees. Although most of the discussion is highly fact-specific, the court made a number of points that deserve notation:
- The court deemed a prior award of benefits relevant:
If benefits are terminated absent any change in the participant's medical condition, or the applicable policy language, the previous decision to award benefits is relevant in evaluating the reasonableness of terminating benefits. See Connors v. Conn. Gen. Life Ins. Co., 272 F.3d 127, 136 (2d Cir. 2001) (noting significance of a decision to terminate long term disability benefits absent any evidence of a change in the plaintiff's condition). *36.
- The court deemed allegations of pain relevant:
"This Circuit has long held that the subjective element of pain is an important factor to be considered in determining disability." Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984), quoted by Connors, 272 F.3d at 136. Even when a plan gives the administrator discretionary authority, the administrator may only evaluate the credibility of the claimant's subjective complaints of pain; the administrator may not dismiss the claimant's subjective pain as legally insufficient evidence. Krizek v. Cigna Group Ins., 345 F.3d 91, 101-02 (2d. Cir. 2003) ("[W]hile a district judge is not required to accept a plaintiff's subjective complaints as credible, it cannot dismiss complaints of pain as legally insufficient evidence of disability.") (internal quotation marks omitted); Short v. UNUM Life Ins. Co., No. Civ. 302CV827 (MRK), 2003 WL 22937720, at *6, *9 (D. Conn. Dec. 3, 2003) (noting that even when the plan administrator has discretionary authority, the administrator still has a duty to consider all relevant evidence, including subjective evidence). Indeed, when credible evidence is before the administrator, "subjective pain may serve as the basis for establishing disability, even if such pain is unaccompanied by positive clinical findings or other 'objective' medical evidence." Marcus v. Califano, 615 F.2d 23, 27 (2d. Cir. 1979); see also Lijoi v. Cont'l Cas. Co., 414 F. Supp. 2d 228, 245 (E.D.N.Y. 2006) (holding that "credible complaints of pain . . . cannot be disregarded" even though plan terms required participant to submit "objective medical findings" to substantiate a disability claim). *36-*37.
- The court also found that a determination of capability to perform "sedentary" work is not enough.
"A finding that a claimant is physically capable of sedentary work is meaningless without some consideration of whether [he or] she is vocationally qualified to obtain such employment, and to earn a reasonably substantial income from it, rising to the dignity of an income or livelihood, though not necessarily as much as she earned before disability." Demirovic v. Bldg. Serv. 32 B-J Pension Fund, 467 F.3d 208, 213-14 (2d Cir. 2006) ("[A] reasonable interpretation of a claimant's entitlement to payments based on a claim of 'total disability' must consider the claimant's ability to pursue gainful employment in light of all the circumstances.") Thus, an administrator must consider whether a beneficiary has "the vocational capacity to perform any type of work . . . that actually exists in the national economy." Id. at 215.
Age is a relevant factor in determining vocational capacity. Id. at 213, 216; see also SSR 83-10 "Determining Capability to do other Work--the Medical-Vocational Rules of Appendix 2" available at 1983 WL 31251 (noting that age must be considered to determine a claimant's vocational adaptability).
- The court found defendant's transferable skills analysis was flawed.
- The evaluator failed to obtain sufficient information about the plaintiffs' work history.
- The court cited SSR 82-41 "Work Skills and Their Transferability as Intended by the Expanded Vocational Factors Regulations Effective February 26, 1979," for a conclusion that neither an occupational title itself nor a "skeleton description" of the job is sufficient.
- The evaluator treated "worker functions" as "skills." *48.
- The evaluator failed to consider non-exertional limitations such as pain, intellectual and psychological limitations, and limited manual dexterity. The court cited Rabuck v. Hartford Life and Accident Ins. Co., 522 F. Supp. 2d 844, 876-77 (W.D. Mich. 2007) (holding that failure to consider non-strength limitations of former company president with short-term memory limitations rendered Transferable Skills Analysis "incredible").
- Finally, the evaluator gave no consideration as to whether the identified alternative occupations even existed. Since the was last updated in 1977, some of the jobs were obsolete by the mid-1990's.