On January 19, 2010, the United States Court of Appeals, First Circuit handed down a decision based on arguments heard between the disability attorney of Edward F. Richards and Prudential Insurance Company of America on October 7, 2009. This is another case that highlights the difficulties faced by disability claimants suffering with fibromyalgia. It demonstrates how important it is to hire an attorney who pays attention to the fine details and has a clear understanding of what his or her clients need to do in order to win their case.
We discussed the background leading up to Richards’ filing of a lawsuit in Prudential denies disability benefits to man with fibromyalgia after paying benefits for 10 years. Now, we will look at how the district and appellate court reviewed Prudential’s decision to deny benefits.
Richards’ disability case goes before the district court first.
Richards had exhausted his administrative remedies, having appealed Prudential’s disability benefits termination decision three times. His disability attorney filed an ERISA suit in Federal Court, seeking reinstatement of his disability benefits retroactive to June 2001. They also sought attorneys’ fees and roughly $43,000 in sanctions against Prudential for failing to provide certain documents during the administrative process. Prudential and Richards filed cross motions for summary judgment. This led to a magistrate judge issuing a report and recommendation, known as an R&R.
In the 56 page R&R, the magistrate rejected all of Richards’ arguments, including the claim that Prudential should have given special weight to the Social Security administration’s favorable benefit determination, and that Prudential should have given more weight to the opinion of Richards’ treating physician, Dr. Hryniewich. The District Court judge agreed with the R&R. Richards appealed the First Court of Appeals.
The Court of Appeals determines how to review the disability insurance case.
The first order of business before the Court of Appeals was to determine which standard of review to apply to Richards’ case. Prudential wanted the court to review the administrative record using the abuse of discretion standard. Richards’ disability attorney urged that a de novo review was needed. De novo which requires the judges to look at the entire record afresh, also provides a better environment in which to address Richards’ grievances. The Court agreed to apply the de novo standard of review.
Now, it was the Court’s job to weigh the evidence in Richards’ claims file, known as the administrative record. Did the record there demonstrate that he was disabled under the terms of the long-term disability policy? Because the review is de novo, the court did not have to give deference to the administrators’ opinions or conclusions. The court would be able to sit in the administrators chair and determine whether the administrator had made the correct decision. Everything rested on whether Richards had proven his inability to perform the material and substantial duties of any job in that record.
The disability insurance attorney bases appeal on three arguments.
- Richards’ disability attorney argued that Prudential failed to give weight to Dr. Hryniewich’s opinions. This argument included the accusation that in 2001, Dr. Brachman had failed to consider Dr. Hryneiwich’s notes.
- They argued that Prudential erred by failing to give any weight to the Social Security Administration’s positive disability ruling.
- Finally his disability attorney argued that giving weight to a paper consultation in which the physician recommended a psychiatric treatment for a non-psychiatric condition was not justified.
Did Prudential fail to give weight to attending physician’s opinion?
The court may have wondered if Richards’ disability attorney had looked through the administrative record. They found that Dr. Brachman’s report mentioned office notes from visits made in 1997, 1999 and 2002 to Dr. Hryniewich’s office. She also mentioned the attending physician statements from 1997 and 1999. In these statements, Dr. Hryniewich stated that Richards’ ability to perform work duties was “unknown.” It wasn’t until 2006 when Richards filed his final appeal, that Dr. Hryniewich finally stated that Richards was disabled from any work.
The court was unprepared to give Dr. Hryniewich’s assessment controlling weight over Prudential’s decision, even though none of the doctors who reviewed his filed had examined him. Existing law makes it clear. The opinion of a claimant’s treating physician is not entitled to special deference. Add on top of this the fact that Dr. Hryniewich’s office notes, written over the span over four years, never referred to any disability connected with Richards’ fibromyalgia, and the Court saw no reason to challenge existing case law.
Richards’ disability lawyers had failed to convince the court that Prudential should have given more weight to Richards’ attending physicians’ opinion.
Should Prudential have given more weight to Social Security Disability?
The court’s reaction to this argument was not positive. The court had already determined in the past that Social Security determinations could be relevant to an insurer’s decision, but that a Social Security disability decision did not have controlling weight unless the statutory criteria were identical between Social Security and the insurance plan. Richards’ disability attorney made no effort to compare the criteria used by Social Security against the insurance companies plan, effectively waiving the right to argue this point.
The record indicated that Prudential was prepared to review and consider the documentation that had led to Social Security approving Richards’ Social Security disability benefits. When this documentation was reviewed, the court found that Richards’ disability was approved because he was unable to perform a full range of sedentary work activity. The insurance policy required Richards to prove that he was disabled from all sedentary work, not just to have some limitations in performing sedentary work.
In addition, Richards began receiving Social Security disability benefits in 1992. Prudential’s termination occurred nine years later. While only Prudential terminated Richards’ disability benefits, the disability attorney failed to produce evidence that Social Security had ever reviewed Richards’ ongoing qualifications for continuing to receive Social Security disability benefits.
The Social Security argument had no merit before the court. It is likely that the court would have given more weight to the SSDI decision had the decision to award SSDI benefits been made closer in time to the Prudential denial of benefits.
Should Prudential have ordered a physician exam to evaluate disability?
Would the final argument presented by Richards’ disability lawyers be successful? They argued that Prudential’s policy language which gave the long-term disability insurance company the right to order a physical examination of a claimant, obligated Prudential to use physical exams. The disability attorney argued that the policy language was vague and must be strictly construed against Prudential during the de novo review.
The court found these arguments unsupported by the policy language itself. It would take a strained reading of the policy’s language to conclude that Prudential had to order a physical exam in order to comply with the policy language. Prior court rulings have always upheld the right of an insurer to make decisions based on reviews of the medical records, and to not require a physical exam unless one of the doctors reviewing the medical records recommended a physical exam as the only way to make an informed decision.
The disability attorney also argued that Prudential discontinued his benefits because the plan had a 24 month maximum payout for any disability caused in whole or part by a mental health issue. They claimed that Dr. Brachman falsely diagnosed Richards with a psychiatric condition – depression. This argument failed. The court found that Dr. Brachman mentioned Richards’ history of depression, but she focused more on the lack of evidence for his physical impairment. Also, the administrative record proved that Prudential had terminated Richards’ benefits on grounds based on evaluation of his current physical condition at the time of denial.
This argument also failed to convince the Court that Prudential had made a wrong decision to terminate Richards’ long-term disability benefits.
The Court rules in favor of Prudential’s disability termination.
While the court felt sympathy for Richards’ troubles, the Court’s decision could not be based upon emotion. This case was not about whether Richards had fibromyalgia or chronic fatigue immune dysfunction. The case was about whether Richards provided sufficient proof to Prudential that he was unable to perform any of the sedentary jobs for which he was qualified. The court reviewed the record and found that Richards had failed to do this. The court had no choice but to uphold Prudential’s decision and affirm the decision of the District Court.
Practical Tip: Many claimants do not realize that disability insurance benefits are evaluated on a monthly basis by disability insurance companies. I have seen cases in which benefits have been denied to a claimant after receiving benefits for 18 years. In order to help avoid denial by a disability insurance company here are a few actions a claimant can take:
- See your treating physicians at least once every 3 months;
- Make sure your treating physician is documenting all of your restrictions and limitation in detail. It is not enough for your doctor say that you cannot work. Your medical records should be reviewed regularly;
- Complete any diagnostic test which are recommended by your doctor. If your doctor has not performed any objective diagnostic testing, you should ask your doctor to have objective testing completed so that you can further document your disability. Be aware that if the test results do not support your disability, then the insurance company may use this information against you. If it has been more than 2 years since conducting diagnostic test, then the test should be repeated. ;
- Keep a daily or weekly journal of activities that cause pain;
- Take photographs of any swelling or videotape yourself on days you are experiencing disabling pain.