MetLife found itself back in the doghouse this month after a ruling by the Seventh Circuit Court of Appeals. The 7 th Circuit decides long-term disability “LTD” denial claims for people living in Wisconsin, Illinois and Indiana. The Court’s thorough analysis of the case is extremely helpful in addressing eight issues that our firm repeatedly encounters in the LTD cases we litigate. Those issues are “cherry-picking”, “moving target”, “normal” test results, functional capacity examinations, social security determination, medical history, cognitive impairments and examining physicians.
In this case, the claimant, “Lanette”, worked as a senior training specialist at a large credit management company. Lanette stopped working when she developed a painful nerve condition in her right arm. MetLife began paying disability benefits under an “own-occupation” standard. Three surgeries failed to remedy the condition, and Lanette was diagnosed with complex regional pain syndrome (“CRPS”). Lanette’s symptoms persisted without improvement for the next three years.
MetLife began paying LTD benefits but determined pursuant to a periodic review that Lanette was no longer disabled and terminated her benefits. Lanette filed suit in federal court under the Employee Retirement Income Security Act of 1974 (“ERISA”).
1. “Normal” Test Results
To support its determination, MetLife relied on the results of the nuclear bone scan and EMG. MetLife suggested that the “normal” results of these tests undermined the diagnosis of CRPS and provided “further evidence that the FCEs [functional capacity evaluations] were not a reliable objective measure of Lanette’s functional capacities.” The Court found that these tests only sometimes reveal indicia of CRPS and that severe CRPS is not inconsistent with normal bone scan or EMG findings. It was therefore arbitrary for MetLife to rely on such results to deny the claim.
2. Functional Capacity Evaluations (FCEs)
The Seventh Circuit rejected as arbitrary MetLife’s requirement that Lanette prove her condition with objective data where no definitive objective test exists for the condition or its severity. In these difficult cases involving conditions where subjective symptoms of pain are not manifest in objective clinical data, the Seventh Circuit has allowed a plan administrator to require a certain degree of “objectivity” in terms of the measurement of physical limitations as observed in a functional capacity evaluation. A distinction exists however, between the amount of fatigue or pain an individual experiences, which is entirely subjective, and how much an individual’s degree of pain or fatigue limits his functional capabilities, which can be objectively measured.
The FCE report for Lanette included 20 different detailed tests performed one day and then repeated one day later with “all measured parameters recorded [at] a reduction of about 20%,” which suggested consistency of effort and “very poor endurance.” Those results indicated that it was unlikely that Lanette would be able to sustain even her severely compromised level of function over consecutive workdays, as needed for full-time employment. Despite the thoroughness of this FCE, MetLife rejected it. MetLife offered several explanations, but the Court found they lacked substance and reflected arbitrary action, because “there is an ‘absence of reasoning in the record’ to support [MetLife’s] conclusion” that the FCE does not establish disability.
3. Social Security Determination
The Social Security Administration determined that Lanette was completely disabled and awarded disability benefits. The Social Security standard for total disability was more stringent than the plan’s standard for any-occupation disability at issue for purposes of LTD benefits. Moreover, it was MetLife that insisted that Lanette apply for Social Security benefits. As a result, MetLife received a benefit from the Social Security determination that she was disabled, but then failed to consider that determination when it terminated benefits.
The Court held that an administrator is not forever bound by a Social Security determination of disability, but an administrator’s failure to consider the determination in making its own benefit decisions suggests arbitrary decision-making. This is especially so when the Social Security determination was made under a similar or more stringent disability definition, as it was here. In its denial letters, MetLife never stated why it disagreed with the Social Security determination.
4. Medical History
Lanette’s overall objective medical history was also found highly relevant by the Court. Lanette had undergone three surgeries and continues to endure what is, even by MetLife’s doctors’ accounts, a heavy regimen of pain medication. MetLife claimed that the surgeries have resolved her condition, despite the utter lack of support for this conclusion and the wealth of medical opinion (including from MetLife consultants) that surgical options were abandoned because more operations would be futile. MetLife speculated that the medication regimen did not support the existence of genuine pain but instead existed only to feed drug-seeking behavior. The Court found that MetLife ignored evidence that Lanette’s pain was genuine and that she did not suffer from addiction, a conclusion reached by MetLife’s doctor after an in-person examination of Lanette.
5. Cognitive Impairments
MetLife was also found to have acted arbitrarily and capriciously in discounting evidence of Lanette’s cognitive impairments resulting from her heavy pain medication. Dr. Noel shared numerical results of a battery of tests takenn by Lanette and expressed extreme doubt that Lanette could resume employment: “If considered for a return to the workforce, it would be at the most menial level using her physical skills, if these were suitable.” The Court stated that MetLife acted within its rights by asking for tests showing Lanette’s cognition, but provided no guidance as to what testing she should provide, much less how or by whom it should be done. The phrase “neurocognitive testing” did not give Lanette fair notice, the Court said, of the additional criteria that MetLife later insisted would need to be met before it would give weight to the results. Also, MetLife having passed on the opportunity to arrange for the testing itself, MetLife’s after-the-fact reasons for rejecting Dr. Noel’s results reflected arbitrary and capricious decision-making that suffered from, “an absence of reasoning in the record to support it.”
6. Examining Physicians
None of the doctors who concluded that Lanette failed to establish disability ever examined her. Every doctor who had actually seen her in the pertinent time period had concluded that she was disabled. An administrator may give weight to doctors who did only a records review, but theCourt found in this case, the evidence provided by the doctors who examined her in person was so overwhelming that the reliance on record-review doctors who selectively criticized this evidence was part of a larger pattern of arbitrary and capricious decision-making.
Cases involving claims of persistent and serious pain that is difficult to evaluate in objective terms pose great challenges to plan administrators and to courts, and of course to the affected patient. Plan administrators and courts are understandably concerned about the possibility of malingering and exaggeration. The problems of malingering, drug addiction, and drug-seeking behavior are well-known to professionals who treat painful conditions, and they look for them. The problems of malingering and addiction were not found here, and the subsequent reviewers’ speculation was not a substitute for evidence, the Court said.
7. The Moving Target
A troubling example of “moving the target” was MetLife’s decision to discount all medical evidence obtained after the initial termination of benefits even after it asked for “additional medical information dating to the time the claim was terminated.” The Court held that such conduct frustrates fair claim resolution and is evidence of arbitrary and capricious behavior. Courts have used several sports metaphors to capture this unfortunate phenomenon: moving the target, moving the goal posts, hiding the ball, raising the bar, etc. This Court had used the “moving target” language before, and said “we’ll stick with it.”
8. Selective Consideration of Evidence
Another common metaphor used by the courts, “cherry-picking”, refers to the administrator’s selective readings to support denial of benefits, while that evidence in context demonstrated disability. In this case, the Court found that MetLife selectively ignored the evidence supporting Lanette’s disability and took out of context pieces of information that would support its decision to deny benefits.
This court decision is great news for disability claimants living in Wisconsin, Illinois and Indiana who could use the extra arrows in their quiver to take on MetLife, Unum, Standard, and the other LTD carriers who unlawfully deny disability benefits.
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.