MetLife was found by a Court this month to have once again violated the Employee Retirement Income Security Act of 1974 (“ERISA”) in denying a woman’s claim for long-term disability benefits. The Court concluded that from the outset MetLife seemed predisposed to denying Plaintiff’s claim in the most expeditious manner possible. Initially, MetLife shirked its ERISA obligations by having non-medical personnel curtly determine that Plaintiff did not qualify for benefits under the terms of the Plan, without any meaningful review of the medical evidence submitted by Plaintiff. When confronted with its lapse by Plaintiff’s counsel, MetLife begrudgingly agreed to another review, this time with the assistance of a doctor. Unfortunately for MetLife, its hired gun did not honestly evaluate the medical evidence, and MetLife failed to recognize the determination by the Social Security Administration that Plaintiff is disabled.
MetLife made no attempt to explain why it was rejecting Plaintiff’s 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 its own consulting doctor, 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.
A. Background Facts
At the time of Plaintiff’s application for STD benefits, her physicians were not certain what was causing Plaintiff’s symptoms. Although her attending physician could find no objective evidence of a disability, he concluded that Plaintiff was unable to work due to extreme fatigue, diarrhea, and poor concentration, due to post-viral fatigue and depression.
Plaintiff consulted with a second doctor who was “interested in working up her fatigue aggressively and have sent her to a neurologist.” He also diagnosed her with migraines and prescribed Midrin, noting that “if it does not resolve tomorrow 100% she is to call us and we will refer her to neurology ASAP or make appropriate changes at that time.”
Plaintiff’s doctors were unable to specify a date when Plaintiff could return to work because there was “no objective evidence as to the etiology of her fatigue, that the only symptoms we have to go on are her assessments.”
B. Plaintiff Finally Got Diagnoses
Plaintiff’s neurologist diagnosed Plaintiff with headaches, migraines, and fibromyalgia, and noted that Plaintiff’s symptoms had persisted. He found “pain in all extremities and the body.” “Also has increased pain in the lower back.” “Still with double vision.” These symptoms, the neurologist found, would result in Plaintiff missing work 75% of the time; that Plaintiff would not be capable of using her hands for repetitive work related activities; that Plaintiff’s pain and fatigue were severe; that Plaintiff experiences frequent, severe cognitive problems; and that Plaintiff could sit continuously for only 40 minutes, stand for only 10 minutes and walk for only 5 minutes. The neurologist also reported that Plaintiff suffered from migraine headaches with associated symptoms, such as vertigo, nausea, vomiting, malaise, photosensitivity, visual disturbance, mood changes, and mental confusion/inability to concentrate. He also noted that bright lights, coughing, straining, moving about, and noise worsened her headaches.
Throughout 2003, Plaintiff’s neurologist continued to note pain and numbness in Plaintiff’s left leg, headaches/migraines, problems with memory, confusion, problems with speech, fibromyalgia, chronic pain syndrome, falling/tripping, depression and disequilibrium. Plaintiff began using a cane, and was taking the following medications: Provigil, Tagamet, Paxil, Neurontin, Klonpin, Topamax, Trazdone, Amerge, and Bextra.
Plaintiff’s rheumatologist found that Plaintiff was experiencing pain and swelling in her hands, stiffness the entire day, lower back pain, pain in knees and hips, and occasional numbness in her feet. The rheumatologist noted that Plaintiff was treated with steroids, but discontinued them due to the numerous side effects. Plaintiff was taking Opamax, Clonopin, Zanaflex, and Trazodone.
Most importantly, the rheumatologist diagnosed Plaintiff with fibromyalgia, finding stiffness the entire day that Plaintiff had “positive trigger points present.” She also stated that Plaintiff’s back pain was suggestive of osteoarthritis. She further found that Plaintiff was suffering from trochanteric bursitis, for which she injected Plaintiff’s left knee and right trochanteric bursae with Triamcinolon. Plaintiff’s problems with extreme fatigue, sleepiness, pain, anxiety, depression, memory loss, and forgetfulness, were also documented.
A clinical psychologist conducted a psychological evaluation of Plaintiff, at the request of the Social Security Administration, which revealed poor short term memory, concentration, and attention span. She concluded that Plaintiff “does display weakness with verbal, recall, remote memory, associate learning, and auditory processing.” That doctor recommended that Plaintiff “not return to her most recent job, she seems unable to maintain the cognitive focus required. Her cognitive capacity is affected by depression, pain and medications.”
C. Family Member Statements Supported Plaintiff’s Claim
Plaintiff also submitted to MetLife witness statements from her husband, daughter, and son stating that, although Plaintiff loved her job at Sharp, her chronic pain, fatigue, migraines, and problems with constipation and diarrhea forced her to stop working. They explained that Plaintiff’s memory is deteriorating, that she is unable to do most of the household chores, that she is incapable of even paying bills or balancing their checkbook, and that, most medications offered her, at best, only short-term relief.
Plaintiff’s daughter explained that her mother only has the energy to perform one main activity-such as cooking, going to a doctor’s appointment, using the computer, etc.-each day, before she succumbs to pain and exhaustion. She also stated that Plaintiff’s speaking and writing is slow and disorganized, and explained that her mother frequently forgets what her purpose was in the middle of a task.
CONCLUSIONS OF LAW
A. MetLife’s Obligations Under ERISA
Congress enacted ERISA to “promote the interests of employees and their beneficiaries in employee benefit plans, and to protect contractually defined benefits.” ERISA and the Secretary of Labor’s regulations under the Act require a “full and fair” assessment of claims and clear communication to the claimant of the “specific reasons” for benefit denial. Under ERISA, the “full and fair review” requirement imposes upon fiduciaries the obligation to inform the claimant of the evidence the decision-maker relied upon; to afford the claimant with the opportunity to address the accuracy and reliability of that evidence; and to consider the evidence presented by the claimant prior to issuing a decision on the claim.
B. MetLife’s Decision to Deny Benefits Was Arbitrary and Capricious
In reviewing disability determinations, courts consider the “impartiality of the decision making body, the complexity of the issues, the process afforded the parties, the extent to which the decision makers utilized the assistance of experts where necessary, and finally the soundness of the fiduciary’s ratiocination.” Even under this deferential standard, however, review is not “a rubber stamp and deference need not be abject.”
MetLife’s doctor 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. Similarly, in denying Plaintiff’s claim, MetLife rejected, without discussion, numerous competent records from physicians who actually examined Plaintiff, and, apparently, ignored entirely the SSA’s determination that Plaintiff was disabled and the witness statements describing Plaintiff’s steadily deteriorating health. Under these circumstances, “the Court can only conclude that MetLife’s LTD benefits decision was arbitrary and capricious.”
C. MetLife’s Reliance Upon Its Own Consultant to the Exclusion of Other Evidence Was Unreasonable
Since the time it was discovered that Plaintiff was suffering from fibromyalgia, both her treating physician and the SSA consulting psychiatrist agreed that she was unable to return to work. None of the physicians who examined Plaintiff stated that she was capable of working, or offered opinions on her abilities that would support such a conclusion. Despite this, MetLife relied upon the opinion of its own hired consultant who never examined Plaintiff and apparently reviewed only a select portion of Plaintiff’s submissions, to conclude that Plaintiff was not entitled to LTD.
The Court found that MetLife’s decision to credit its doctor’s Physician’s Review, to the exclusion of all evidence supporting Plaintiff’s claim, particularly troubling because the Review was “wholly unreliable”. MetLife’s doctor based his opinion on a selective review of the evidence, neglecting to distinguish the parade of medical opinions and test results that support Plaintiff’s claim of disability. Moreover, the carrier’s doctor did not consider Plaintiff’s favorable SSA determination; he relied upon the most negative inference from his purported conversation with Plaintiff’s doctor; 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, the Court held, “was his most egregious.”
D. MetLife’s Requirement of Objective Test For Fibromyalgia When One Does Not Exist is Egregious
In decisions predating this one, courts have been “deeply troubled by the importance that the insurance company’s physician placed on the lack of objective tests to substantiate the extent of the claimant’s pain.” In the present case, the Court explained that the severity of the pain experienced by persons diagnosed with fibromyalgia cannot be documented by objective tests; the only evidence regarding the severity of the pain is the claimant’s subjective statements. Pain often and in the case of fibromyalgia cannot be detected by laboratory tests. The disease itself can be diagnosed more or less objectively by the 18-point test but the amount of pain and fatigue that a particular case of it produces cannot be. Accepting the insurance company’s physician’s position, i.e., that fibromyalgia is not disabling absent objective evidence of the severity of the pain, would mean that fibromyalgia could never be shown to be totally disabling, which is improper.
MetLife’s position fails to account for the nature of fibromyalgia:
fibromyalgia, also known as fibrositis [is] a common, but elusive and mysterious, disease, much like chronic fatigue syndrome, with which it shares a number of features. Its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are pain all over, fatigue, disturbed sleep, stiffness, and-the only symptom that discriminates between it and other diseases of a rheumatic character-multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.
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. 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.
E. MetLife’s Failure to Account for the SSA’s Disability Award Renders Its Decision Arbitrary and Capricious
MetLife could not 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. The findings of the Social Security Administration are compelling evidence of a plaintiff’s disability and may be considered by a court reviewing a claim for disability benefits under the Employee Retirement Income Security Act of 1974. An ERISA plan administrator’s failure to address the SSA’ s finding that a claimant is totally disabled is an indication that the plan’s denial of LTD benefits is arbitrary and capricious.
MetLife’s conduct in this case is another reprehensible example of how insurers of long-term disability benefits intentionally violate the clear standards of review established under ERISA, its regulations, and three decades of case law interpreting the law. Development of the claimant’s record to include medical records and statements by treating doctors, the SSA determination, and statements by family members is critical to winning long-term disability benefit entitlement.
Alan Olson writes this web-log to provide helpful information regarding long-term disability cases. He practices long-term disability law throughout the United States from his offices in New Berlin, Wisconsin. Attorney Olson may be contacted at [email protected] with questions about the information posted here or for advice on specific disability benefit claims.