Does the absence of a definitive diagnosis preclude an award of disability benefits?

Courts have resoundingly answered that question in the negative, finding that a diagnosis is less important than findings relating to impairment.

Symptoms of fatigue, pain, and compromised cognition can be characteristic of many illnesses that can be difficult to diagnose or treat.

The recent U.S. District Court for the Central District of California ruling in Myers v. Aetna Life Insurance Co.[1] is illustrative.

The case involved Vicky Myers, who worked for the California Institute of Technology‘s Jet Propulsion Laboratories from 1979 until 2018. She last worked as a software management engineer responsible for at least six ongoing projects, and earning a salary of $130,000.

Myers stopped working at the age of 58 due to the insidious onset of memory problems along with fatigue and muscle and joint pain that began in the year before she ceased working. When Myers applied for disability benefits after she could no longer continue working, Aetna denied her claim due to the absence of a definitive diagnosis and objective medical evidence supporting her claim.

Myers appealed the denial, submitting a neuropsychological evaluation, a vocational assessment, medical records and reports and supportive medical journal articles, along with witness statements corroborating her claimed impairments. Despite that evidence, Aetna once again refused to pay disability benefits based on file reviews which questioned Myers’ claimed impairments.

Applying the de novo standard of review, the court ruled for Myers.

The court explained that a finding of disabled does not turn on a diagnosis alone but requires a comparison of functional capacity to the claimant’s usual occupational duties.

The court further explained that because functional impairment is more important than proof of etiology, “reasoned assessments of what Myers can and cannot do are given greater weight than mere statements of medical diagnoses.” The court further pointed out that “[d]escriptions of symptomology are likewise more helpful in determining Myers’ functional capacity than are mere diagnoses.”

The court questioned whether Aetna’s denial adequately took into consideration that Myers’ occupation “require[d] continuous cognitive engagement.”

Since the evidence overwhelmingly showed Myers had cognitive impairments that would make her job impossible to perform, rather than address the plaintiff’s cognitive limitations, Aetna disputed the legitimacy of whether Myers had a legitimate medical condition since several possible diagnoses has been postulated but no definitive diagnosis had been made.

The court could not square Aetna’s conclusion with the fact that Myers had worked at JPL for decades and often worked 12 or 14 hour days before the onset of extreme fatigue and cognitive decline that interfered with her ability to focus and remember.

While the court acknowledged the plaintiff’s symptoms are “difficult to measure objectively through tests or other evaluations,” the treating and examining doctors issued comparable findings and none of them questioned the plaintiff’s credibility.

Hence, the court concluded that “Aetna erred in relying on the opinion of three doctors who did not examine Myers over the opinions of numerous doctors who did.”

Although the court’s ruling did not mandate that Aetna was required to obtain first-hand clinical examinations in every case, it did conclude that “in-person evaluations and observations are more persuasive than the paper review conducted by Aetna’s three peer reviewers.”

All the reviewing doctors were able to point to were claims of discrepancies and inconsistencies in the reports provided by Myers’ doctors. Without further explanation, the court determined, “[t]o the extent Aetna relies on inconsistencies to show Myers is not a reliable narrator — and imply she may be making a false claim — they have not sufficiently established her unreliability.” The court further observed that “some inconsistencies are congruent with the variability of her condition and the mental fog it created.”

The court further noted that only one of the three Aetna doctors even addressed cognitive findings; and one of Aetna’s doctors was faulted for expressing an opinion that fibromyalgia can never be disabling despite a host of medical findings and court rulings to the contrary.

Thus, the court determined that a preponderance of the evidence supported the claimed disability, meaning that Myers was entitled to an award of benefits.

The court in Myers was faced with a difficult challenge since there were no clear-cut diagnostic findings or test results that could objectively establish the plaintiff’s complaints of pain and fatigue were reliable.

However, the court did an excellent job of refusing to allow Aetna to erect a smokescreen to deny a meritorious claim. The court cited several indicia pointing to Myers’ reliability: The first signal was her lengthy and outstanding work record. The second sign her consultation with multiple doctors who deemed her impaired even if they disagreed as to the cause. The third indication was the lack of support for Aetna’s findings other than the consulting doctors’ disbelief of Myers’ complaints without further explanation.

Aetna could have won this case if there was a neuropsychologist who disagreed with the plaintiff’s psychologist.

The reason why Aetna did not arrange for such an evaluation to take place is obvious. The overwhelming probability is that any legitimate examiner would have concurred that Myers was cognitively impaired. Aetna also did not help its case by relying on a doctor who refused to accept that fibromyalgia could be disabling when both medical consensus and numerous court rulings were to the contrary.[2]

To be sure, insurers have a basis to be wary of potential fraud in claims lacking objective support for a diagnosis or as to which there are no measurable musculoskeletal or neurological limitations.

However, since the issuance of Gaylor v. John Hancock Mutual Life Insurance Co.,[3] which ruled that disability insurers may not automatically dismiss claims if a specific diagnosis is not obtainable, numerous courts have approved disability claims based on the credibility of the claimant and congruent medical findings as to functional limitations.

The court rightfully cited Kennedy v. Lilly Extended Disability Plan,[4] which rejected the opinion of a doctor who did not believe fibromyalgia could be disabling.

The court also appropriately relief on Salomaa v. Honda Long Term Disability Plan,[5] a case that awarded disability benefits to a claimant suffering from chronic fatigue syndrome, as further support for accepting subjective symptom complaints as the basis for an award of benefits.

Another instructive case along the same lines is Diaz v. Prudential Insurance Co.,[6] which involved a disability benefit claim brought by a claimant who was experiencing excruciating pain despite having undergone back surgery, and where the court observed:

[Claimant’s] testimony offers more than a long series of complaints spoken across the breakfast table. It demonstrates the kind of “long history of treatment” that we have found relevant in the past in comparable circumstances…What is significant is the improbability that [the claimant] would have undergone the pain-treatment procedures that he did, which included not only heavy doses of strong drugs… but also [numerous surgeries], merely in order to strengthen the credibility of his complaints of pain and so increase his chances of obtaining disability benefits … Carradine v. Barnhart.[7] Taken in the light most favorable to the plaintiff, the evidence of [claimant’s] repeated attempts to seek treatment for his condition supports an inference that his pain… was disabling.

The rapid development of vaccines to combat COVID-19 illustrates the prowess of medical science in eradicating disease. However, doctors do not always have the answer to every question; and symptoms of fatigue, pain and compromised cognition can be characteristic of many illnesses that may be difficult to diagnose or treat.

The approach taken by the court in Myers recognized the difficulty faced by a claimant such as Vicky Myers in establishing her disability and offered her a path to victory despite the absence of definitive objective medical evidence supporting her claimed disability.

Mark DeBofsky is a shareholder at DeBofsky Law

This article was published by Law360 on January 6, 2021.

Disclaimer: Mark DeBofsky represented the plaintiffs in the Kennedy appeal and in the Diaz case cited in this article.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 2020 WL 7423109 (C.D. Cal. December 17, 2020)

[2] See, e.g., Hawkins v. First Union Long Term Disability Plan , 326 F.3d 914, 919 (7th Cir. 2003) (finding doctor’s opinion claiming the majority of individuals diagnosed with fibromyalgia were capable of working was based on questionable logic, pointing out: “The fact that the majority of individuals suffering from fibromyalgia can work is the weakest possible evidence that Hawkins can, especially since the size of the majority is not indicated; it could be 50.00001 percent.”)

[3] 112 F.3d 460 (10th Cir. 1997)

[4] 856 F.3d 1156 (7th Cir. 2017)

[5] 642 F.3d 666 (9th Cir. 2011)

[6] 499 F.3d 640, 646 (7th Cir. 2007)

[7] 360 F.3d 751, 755 (7th Cir. 2004)

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