Rudzinski v. Metropolitan Life Ins. Co., 2007 U.S.Dist.LEXIS 69258 (N.D.Ill. 9/14/2007)(Issue: Fibromyalgia).  This case, which was litigated by our office, was decided by a trial on the papers.  The court entered findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, awarding the plaintiff all benefits due, along with prejudgment interest and attorneys’ fees.  The plaintiff, who worked as an editor for Sharp Electronics, had to stop working in 2002 as the result of a constellation of medical symptoms that included diffuse body pain, fatigue, migraine headaches, memory loss, motor function difficulties, and other impairments.  Rudzinski was initially approved by her employer for short-term disability benefits, but when she was unable to return to work following the expiration of her personal leave, Sharp’s long-term disability insurer denied her claim.  MetLife’s articulated basis for the denial was that Rudzinski was not disabled throughout the 180 day elimination period set forth in the policy.  Rudzinski disagreed and appealed, but MetLife again asserted that her disability did not last throughout the elimination period, and benefits were again denied.   

Despite MetLife’s denial, Rudzinski was successful in applying for Social Security disability benefits, and she then asked MetLife to again review her claim, pointing out that it did not appear MetLife utilized a physician to review the claim on appeal.  MetLife acknowledged that it did not have a physician review the appeal, thus, the insurer relented and agreed to review the claim again.  However, MetLife still denied the claim after consulting with Dr. Jeffrey Lieberman, a rheumatologist retained through Network Medical Review, an organization that does extensive business with MetLife.  Dr. Lieberman offered a generalization that most patients with fibromyalgia should be able to work.  Dr. Lieberman also supposedly received a corroborating opinion from the treating doctor, but there was no written confirmation that the treating physician dramatically changed his opinion from one that supported Rudzinski’s disability to a contrary opinion.   

After outlining all of the evidence, which included medical records and reports of treatment, corroboration of the fibromyalgia diagnosis by a rheumatologist, ophthalmology records confirming the presence of double vision, and mental health treatment records and reports of evaluations that were conducted at Social Security’s request, along with statements from family members, the court turned to its conclusions of law. 

First, the court found that MetLife had an obligation under the ERISA law to provide a full and fair review of the claim according to 29 U.S.C. § 1133.  The court also determined that MetLife was entitled to a deferential standard of review rejecting the plaintiff’s argument that MetLife was not properly designated as a plan fiduciary and also overruling Rudzinski’s arguments relating to MetLife’s conflict of interest.  Despite the leniency of the arbitrary and capricious standard of review, though, the court nonetheless ruled that MetLife’s determination was arbitrary and capricious based on its failure to “conduct a full and fair review of Plaintiff’s claim.” *33.  The court noted, “From the outset, MetLife seemed predisposed to denying Plaintiff’s claim in the most expeditious manner possible.”  Id.   

The court focused on the insurer’s shirking of its ERISA obligations by failing to have appropriate medical personnel review the claim and the medical evidence.  When MetLife did finally enlist Dr. Lieberman, the court ruled it was too little, and too late, pointing out the defects in his opinion:

Dr. Lieberman mentioned, but did not discuss, dispute, or distinguish, the reports by the numerous physicians that supported Plaintiff's claim that she was unable to work. Instead of analyzing this evidence in forming his conclusions, Dr. Lieberman relied upon: 1) impermissible generalizations about the capabilities of the majority of fibromyalgia sufferers; 2) the absence of objective tests to validate the severity of Plaintiff's fibromyalgia, despite the fact that such tests do not exist; and 3) the most negative inference from Dr. Dzamashvili's purported statement that Plaintiff was not capable of more than light work. *33-*34.

Likewise, the court was critical of MetLife’s rejection without discussion of the records from the physicians who had examined Rudzinski, and found the insured “ignored entirely the SSA’s determination that Plaintiff was disabled and the witness statements describing Plaintiff’s steadily deteriorating health.” *34.  The court found MetLife improperly chose instead to credit Dr. Lieberman’s “flawed” review, leading to a conclusion that the decision was arbitrary and capricious.  The court elaborated and pointed out that while MetLife was not obligated to give deference to the treating doctor’s findings, it also could not “arbitrarily repudiate or refuse to consider the opinions of a treating physician.”  *37 (citing Glenn v. MetLife, 461 F.3d 660, 671 (6th Cir. 2006)).  The court also cited additional reasons to discount Dr. Lieberman’s findings: He neither examined the claimant nor reviewed the entire record; and he also discounted relevant medical reports.  The court added:

Here, in concluding that Plaintiff was capable of performing light work, Dr. Lieberman made no attempt to distinguish the myriad of medical evidence supporting Plaintiff's claim. Plaintiff's treating physician, Dr. Dzamashvili, has consistently labeled Plaintiff's condition as disabling, providing a number of reports detailing the debilitating nature of her fibromyalgia, migraines and chronic pain syndrome. See MET 220-221, 223-226, 235-239. Dr. Dzamashvili's fibromyalgia diagnosis was supported by the conclusions of rheumatologist Dr. Gogoneata, who confirmed that Plaintiff suffers from fibromyalgia, MET 732-733, and his migraine diagnosis was supported by neuro-ophthalmologist Dr. Davis. MET 240. Dr. Laura Jansons, a clinical psychologist who evaluated Plaintiff on behalf of the SSA, concluded that Plaintiff's cognitive capacity had been  negatively affected by depression, pain, and medications, and recommended that Plaintiff not return to work. MET 304. The SSA evaluated all of Plaintiff's medical evidence and agreed that Plaintiff was, in fact, disabled from performing even sedentary work.

Like Dr. Lieberman in his review, MetLife made no attempt to explain why it was rejecting these physicians' findings, and made no mention whatsoever of the SSA's determination, when informing Plaintiff that her final appeal was being denied. Instead, it curtly informed Plaintiff that Dr. Lieberman, a physician who had never examined Plaintiff and apparently reviewed only a portion of the file, determined that she was capable of performing her former position and, therefore, her application was being denied. MetLife's decision to credit Dr. Lieberman's Physician's Review, to the exclusion of all evidence supporting Plaintiff's claim, is particularly troubling, because the Court finds that Dr. Lieberman's Review was wholly unreliable. See, e.g., Govindarajan v. FMC Corp., 932 F.2d 634 (7th Cir. 1991) (a plan's selective review of the medical evidence to justify a denial of benefits is arbitrary and capricious). *38-*39.

The court also criticized Dr. Lieberman for engaging in a “selective review of the evidence, neglecting to distinguish the parade of medical opinions and test results that support Plaintiff’s claim of disability.” *40.  The court continued,

Moreover, Dr. Lieberman did not consider Plaintiff's favorable SSA determination; he relied upon the most negative inference from his purported conversation with Dr. Dzamashvili; and he improperly discredited Plaintiff's claims regarding the severity of her pain, because of the absence of nonexistent, objective tests and because of his perception of what most people with fibromyalgia can do. This last error was his most egregious. 

According to Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003), the court of appeals explicitly rejected such reasoning, finding, “The fact that the majority of individuals suffering from fibromyalgia can work is the weakest possible evidence that [the claimant] can, especially since the size of the majority is not indicated; it could be 50.00001 percent.”

The court went on to discuss the weaknesses in Dr. Lieberman’s selective review, his improper insistence on objective evidence of pain when such evidence cannot be produced, and by his disregard of evidence corroborating Rudzinski’s disability.  Clearly, the court also distrusted Dr. Lieberman’s account of his contact with Dr. Dzamashvili, the treating doctor, since that doctor’s documented findings were consistent in favoring Rudzinski and the comments attributed to him were “aberrational.”

The court was even more dismissive of MetLife’s second argument asserting that its denial was supported because Rudzinski was not under medical care between April 2002 and June 17, 2002.  Citing records of medical visits during that period, the court deemed the insurer’s argument “preposterous.”  *51.  At best, the physicians were still searching for a diagnosis during that period, but given the nature of fibromyalgia, the inability to pinpoint a precise diagnosis was not at all inconsistent and did not demonstrate a failure to obtain treatment.  Likewise, the court found

untenable MetLife's argument that Plaintiff was not entitled to LTD benefits because her file lacked objective testing to support the conclusion that her depression, fibromyalgia, pain, and vision problems were disabling. The Seventh Circuit has repeatedly stated that, once a physician has confirmed that a patient has fibromyalgia, there are no objective tests to determine  the severity of the condition. See Sarchet 78 F.3d at 306-07; Hawkins, 326 F.3d at 916 (noting that fibromyalgia can be diagnosed objectively, but the severity of the fibromyalgia symptoms cannot be determined objectively.) MetLife's insistence that Plaintiff provide documentation that she cannot possibly produce demonstrates both a fundamental misunderstanding of the disease and the unreasonableness of its determination. *52-*53.

The court then turned to the value of the Social Security decision and ruled the insurer’s failure to mention the SSA’s decision at all is arbitrary and capricious, finding that “MetLife cannot avoid the bevy of authority holding that a fiduciary's failure to even consider the SSA's timely finding of disability is evidence that its decision is arbitrary and capricious.” *53.  While the Social Security finding may not have been binding on MetLife, the court ruled that Social Security’s determination was relevant evidence.  Coupled with MetLife’s utter failure to explain why it was not considering the Social Security determination, such as differing standards for proving disability, along with not providing a copy of the Social Security claim file to the consultant or addressing the finding at all, the court deemed the insurer’s decision arbitrary and capricious.  The court also found several examples of procedural irregularities: Although the ERISA regulations specify that different persons conduct the review at various levels, MetLife had the same person who had initially denied the claim deny the appeal as well.  The failure to have medical personnel review both the initial claim and the first appeal also suggested arbitrary and capricious conduct.

Finally, the court ordered benefits paid and refused to order a remand.  The court awarded benefits due and also approved both the payment of attorneys’ fees and prejudgment interest.  The court justified a fee award based on “MetLife’s utter disregard for the evidence favoring Plaintiff’s claim and its selective citation to the Record.” *59.  The court added that “Consistent with MetLife’s arbitrary treatment of the evidence supporting Plaintiff’s LTD application, MetLife’s Response brief frequently makes incomplete and misleading references to evidence in the Record.” *60.