A federal judge in Alabama (Karen Bowdre) recently issued a critical ruling in a disability case involving fibromyalgia. The court made numerous keen observations about the review process and the nature of fibromyalgia, carefully analyzing all of the issues presented. Here is our discussion and analysis of the court's ruling:
Williams v. United of Omaha Life Ins.Co., 2013 U.S.Dist.LEXIS 141563 (N.D.Ala. September 20, 2013)(Issue: Fibromyalgia). In this ruling, the court reversed the termination of disability payments after the change in definition from an occupation-based definition to a more general definition of disability, albeit one that required an ability to perform an occupation that would generate at least 60% of pre-disability earnings. The case involved Shannon Williams, who ceased working in May 2007. Although her employer's disability insurer paid benefits for 24 months, it refused to pay additional benefits after the change in definition. The court applied the unique Eleventh Circuit framework for deciding ERISA claims -
(1) Apply the de novo standard to determine whether the claim administrator's benefits-denial decision is "wrong" (i.e., the court disagrees with the administrator's decision); if it is not, then end the inquiry and affirm the decision.
(2) If the administrator's decision in fact is "de novo wrong," then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision.
(3) If the administrator's decision is "de novo wrong" and he was vested with discretion in reviewing claims, then determine whether "reasonable" grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse the administrator's decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict, the conflict should merely be a factor for the court to take into account when determining whether an administrator's decision was arbitrary and capricious.
Blankenship v. Metropolitan Life, 644 F.3d 1350, 1355 (11th Cir. 2011) (citing Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1195 (11th Cir. 2010)).
The plaintiff, who had worked as a field auditor in relation to workers' compensation claims, ceased working due to severe pain and fatigue caused by fibromyalgia, arthritis, and degenerative disk disease, for which several physicians including a rheumatologist treated her. As part of Williams's initial claim for long-term disability, United of Omaha referred her for an independent medical examination. The doctor who performed that examination confirmed the other physicians' findings and deemed her unable to work at her occupation. Consequently, benefits were approved.
However, as the plaintiff approached the change in definition, United of Omaha had her attend a functional capacity evaluation, which deemed her capable of performing a sedentary occupation. The treating rheumatologist challenged those findings, maintaining that "FCE Testing has not been a reliable indicator of work ability, about [what] a person can do on one day after being off work is not the same as working day-after-day." However, the insurer then had the file reviewed by its medical director, Dr. Thomas Reeder, who deemed the FCE valid and asserted that Williams suffered from a somatization disorder. As a result of that finding, United of Omaha scheduled a psychiatric evaluation, which found that Williams suffered from a pain disorder associated both with medical factors and a psychological condition, but was unable to delineate the proportion to which the disorder was attributable to physical or psychological factors. However, the psychiatrist found no evidence of malingering. Nonetheless, an internal review conducted by United of Omaha found no restrictions due to a psychiatric condition and benefits were terminated.
Williams appealed; and submitted a 30-page sworn statement from her rheumatologist confirming the presence of fibromyalgia and a positive anti-nuclear antibody test result consistent with other auto-immune disorders, as well as confirming her inability to work. The plaintiff also submitted a vocational assessment that critiqued the FCE, along with a separate vocational report finding Williams incapable of working. Upon receipt of that documentation, United of Omaha hired a Dr. Anne MacGuire to review the records. That physician found the plaintiff capable of sedentary work; and the insurer thus upheld its determination.
The court found that United of Omaha's decision was de novo wrong because of the evidence submitted by the rheumatologist. Specifically, both the clinical findings and laboratory results corroborated the rheumatologist's opinions; and the court noted that the only doctor who disputed the diagnoses was Dr. Reeder. The court found his opinion "troubling" since he "is not a rheumatologist but who takes the rather extraordinary position that no objective evidence supports any of these conditions." (emphasis in original). Because the nature of William's impairments could cause good days and bad days, the court acknowledged that its duty was to "examine the record to determine the overall pattern of her illness and resulting pain, not only on her abilities on a particular day, but on her employability." The court pointed out that the medical records support the intense pain complaints; and added:
For a conditions as subjective and variable as fibromyalgia and rheumatoid arthritis, direct contact with the patient over a period of time would provide a more thorough opportunity to assess her credibility regarding level of pain and the true pattern of her abilities. Therefore, in the instant case, the court will focus heavily on the opinions and treatment records of Williams's treating physicians such as Dr. Odi and Dr. McLain. The records of treating physician Dr. Odi characterized her pain as "severe" and "all over her body" requiring repeated pain blocks and pain medication without consistent relief from pain. (Doc. 20-2, at 43).
The court deemed the treating rheumatologist's opinion most helpful because of his lengthy treatment relationship with the plaintiff and his medical specialization. The rheumatologist's opinions were also consistently reported. The court was also impressed by every other examining doctor since they all concluded that there was no exaggeration or malingering in plaintiff's presentation. The court further explained that the FCE finding only showed the functions Williams could perform for three hours on a particular day. The therapist who performed the FCE also acknowledged that a two-day examination would be necessary to form a more accurate assessment of work tolerance, but none was obtained. The court added, "The evaluation is only an accurate measurement of her physical ability during those three hours of that particular day, and can be misleading in a case where the underlying physical condition is fibromyalgia and rheumatoid arthritis conditions causing significant pain." Hence, the court found that the reviewing rheumatologist's opinion was outweighed by the other evidence. Moreover, particular criticism was leveled at Dr. Reeder, whose opinion denied the existence of objective evidence that was plainly present; and he lacked medical specialization. Hence, the court concluded, "Given the wealth of evidence by treating and examining specialists supporting the existence of Williams's disability, Reeder's opinion calls into question his credibility and fairness.
After finding the decision de novo "wrong," the court reached the same conclusion under an arbitrary and capricious standard. The court made a critical observation at the outset of its discussion. Acknowledging the length of the record and the participation of multiple experts, the court noted,
Extensive referrals and a bundle of paperwork are not necessarily indicative of reasonableness or unreasonableness on the part of the company. The paper trail could well represent a good company wanting to be thorough and to make a reasonable, well-informed decision. But, it could also represent a company's less admirable wish to stop paying expensive but appropriate disability benefits and a commitment to keep hiring experts until it could cobble together the right opinions to appear to justify an unreasonable denial of benefits.
The court found the insurer fell into the second category by inappropriately focusing on a somatic disorder. Since the physicians who examined Williams determined that her pain was associated with an underlying physical disorder and that there was no exaggeration in her symptom complaints, the court deemed the insurer's assessment unfair. Again, the court offered a critical observation:
When a company changes its mind on a question of permanent disability, the court would expect that change to be based on new information or a significant change in the employee's health and function. Because the company had Dr. Coleman's report before the change, the reliance on a term taken out of context in an old report to support a change in the disability decision could be an indication of arbitrariness, particularly when a careful reading of the opinion in that report supports instead of rejects Williams's claims of real maladies resulting in real pain.
The court concluded that the insurer's conclusion that Williams's pain was in her mind and that she was exaggerating was a "mischaracterization" of the medical reports. The court was critical of the insurer's cherry-picking from the treating rheumatologist's report - the insurer ignored the doctor's statement that his patient was not a malingerer and misstated his medical findings. Hence, the court concluded:
For all of these reasons, the court finds that United of Omaha unreasonably ignored the objective medical evidence of debilitating diseases or minimized the real physical maladies from which Williams suffered, in labeling her condition as a somatization disorder and using that label as a justification for finding that she was not disabled. All examining physicians - even those United of Omaha hired - found that she suffered from fibromyalgia and other rheumatoid-based conditions, and all examining physicians as well as the rheumatologist hired by United of Omaha agreed that she was not a malingerer exaggerating her pain. With this consensus, United of Omaha's decision to change its position from disabled to not disabled was unreasonable.
The court similarly determined that United of Omaha over-relied on the FCE finding since it was concededly not conclusive on sustained functionality. The court yet again offered a critical observation:
When the evaluator himself questions the validity of his evaluation, the company ought to listen. But United of Omaha ignored that statement. It also ignored Dr. McLain's opinion that Clem's evaluation was not a true measure of Williams's work ability; he explained that what "a person can do on one day after being off work is not the same as working day-after-day." (Doc. 20-13, at 22).
If, after Clem's caveat and Dr. McLain's response, United of Omaha had proceeded to order a multi-day functional capacity evaluation of Williams, the court would be more inclined to accept its efforts and evaluation as complete, reliable, and fair. Its failure to do so when both the FCE evaluator and the treating physician pointed to that need is troubling. That failure raises red flags as to the reliability and correctness of the FCE; when red flags are raised and ignored, the specter of unfairness and unreasonableness raises its ugly head as well.
The court added that Williams's condition made the FCE unreliable because it was "a one-time evaluation and the snapshot it provides [is] particularly unrevealing."
The court next addressed the defects in the insurer's denial letter, making yet another pertinent observation:
The court also recognizes the recurring theme in both denial letters regarding the lack of objective medical evidence. While that requirement sounds reasonable, the application in the instant case is not reasonable for several reasons. First, one of Williams's condition, fibromyalgia, is a pain-based disease, and if the court were to require objective medical evidence to support that diagnosis, no patient would ever be disabled based on that disease. Rather than require such evidence, the more reasonable approach would be to require the doctor to determine whether the patient's condition meets the criteria approved by the American College of Rheumatology. That criteria was good enough for United of Omaha to support its initial determination that Williams was totally disabled and it should be good enough now.
The court concluded that section of the opinion by noting, "The court could continue this litany but it will not. The sloppiness and inconsistency in the denial letters is troubling as is the company's decision to ignore consistent medical testimony, lab results, and standard criteria for diagnoses. When combined with all of the other information in the record, these defects render unreasonable the company's actions."
Finally, the court expressed its concern that United of Omaha ignored a favorable Social Security finding after encouraging Williams's application for benefits. Once again, the court cogently articulated the arbitrariness of the insurer's actions:
Indeed, United of Omaha's actions do not pass the smell test. First, United of Omaha actively encouraged Williams to pursue of Social Security disability benefits, referring her to a law firm to make the claim and demanding and accepting the proceeds from a successful Social Security claim to reduce its disability payment obligations to Williams. Next, having accepted those Social Security disability proceeds, it denied that the employee is disabled. Both actions - accepting the Social Security disability proceeds and denying that Williams is disabled - are financially advantageous to the company, but they happen to be conflicting positions.
Citing the same concerned expressed by the Supreme Court in Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 118 (2008) ("[T]he court found questionable the fact that MetLife had encouraged Glenn to argue to the Social Security Administration that she could do no work, received the bulk [*60] of benefits of her success in doing so ... and then ignored the agency's finding n concluding that Glenn could in fact do sedentary work ... This course of evens was not only an important factor in its own right (because it suggested procedural unreasonableness)), it was the cumulative impact of the insurer's actions with respect to Social Security that raised the court's ire. Hence, the court ordered benefits reinstated, gave the plaintiff leave to seek attorneys' fees, and ordered that 6% interest was due on the overdue payments.
Discussion: This decision is one of the most comprehensive rulings we have seen on the issues presented by a disability claim based on fibromyalgia. The court approached the case from a number of different angles and made observations with respect to those issues that demonstrated a refusal to treat a deferential standard of review as a rubber stamp, as shown by the comment expressing skepticism as to the fairness of the insurer's review process. While the court cited numerous precedents, on the issue of the functional capacity evaluation, the court could also have cited Brown v. Continental Casualty Co., 348 F. Supp. 2d 358 (E.D.Pa. 2004), the court ruled that the FCE was a "one time test ... [that] cannot hope to present a true picture of an illness characterized by variable symptoms." Also, Ott v. Litton Industries, 2005 WL 1215958
(M.D. Pa. May 20, 2005) relied heavily on Brown in concluding that FCE tests are particularly useless in fibromyalgia claims. Another court reaching the same conclusion was Crist v. Liberty Life Assur.Co. of Boston, 2006 U.S.Dist.LEXIS 26326 (S.D. Ohio May 4, 2006).
For further information, contact Mark DeBofsky (firstname.lastname@example.org). Our Chicago and Illinois based disability insurance benefits practice has successfully represented claimants in disability benefit cases involving fibromyalgia and other conditions involving severe chronic pain. Some examples of our successful litigation include -
Crespo v. Unum Life Insur.Co. of America, 294 F. Supp. 2d 980 (N.D.Ill. 2003)
Torgeson v. Unum Life Ins.Co. of America, 466 F.Supp.2d 1096 (N.D.Iowa 2006)
Rudzinski v. Metropolitan Life Ins.Co., 2007 U.S.Dist.LEXIS 69258 (N.D.Ill. September 14, 2007)
Diaz v. Prudential Ins.Co. of America, 499 F.3d 640 (7th Cir. 2007)
Holmstrom v. Metro.Life Ins.Co., 615 F.3d 758 (7th Cir. 2010)