Without disability attorney chronic fatigue sufferer would be denied rightful benefits
Magee v. MetLife is another disability case that highlights the importance of hiring a disability insurance attorney when you have been denied disability benefits for chronic fatigue syndrome (CFS). It is far too common for disability insurance plans to use the lack of “objective proof” as a reason for denying the existence of a truly limiting disability.
John Magee, who was 49 years old in 2009 when the Court considered MetLife’s denial of Magee’s long-term disability benefits, was diagnosed with CFS. He had worked as a quality engineer in Eastman Kodak’s Government Services division, participating in Kodak’s Long-Term Disability Plan. Metropolitan Life Insurance Company (MetLife) administered the plan and had “full discretionary authority” to determine Magee’s eligibility and to award him benefits.
Typical of most disability insurance plans The Kodak LTD Plan defined disabled as a condition in which Magee was “totally and continually unable to engage in gainful work.” “Gainful work” by plan definition was “paid employment for which” Magee was or could become “reasonably qualified by education, training, or experience, as determined by MetLife.” The plan also included another typical feature – the requirement that Magee apply for Social Security Disability Income benefits (SSDI). If SSDI benefits were awarded, Magee would have an obligation to refund the Plan for the overpayment of benefits. Thereafter, the monthly benefit payment received from the Plan would be reduced by the monthly Social Security disability payment.
Magee filed his claim with MetLife on July 24, 2004. His attending physician, Dr. David Bell, submitted an Attending Physician’s Statement of Functional Capacity Evaluation (FCE) on September 1, 2004. In the FCE, Dr. Bell listed his primary diagnosis as CFS with a secondary diagnosis of depression. Dr. Bell reported that Magee’s CFS severely limited his ability to walk, stand, and assume a cramped position, reach, climb, balance, bend, and give concentrated visual attention.
On September 20, 2004, MetLife conditionally awarded disability benefits through December 20, 2004, telling Magee that while the medical records supported the severity of his condition, the disability insurance plan questioned the lack of clear objective findings. MetLife went on to conduct an investigation into Magee’s mental condition.
MetLife contacted Magee’s psychiatrist, Dr. Alice Tariot, and his counselor, Carolyn Cerame in October 2004. Dr. Tariot released her opinion on November 1, 2004 that Magee was suffering from major depression and CFS. She also stated that Magee’s negative outlook was tied to coping with the seriousness of his illness and resultant loss of function.
MetLife sent Magee’s file to two consultants for evaluation. Dr. Amy Hopkins, who specializes in internal and occupational medicine, concluded that Magee’s diagnosis was primarily based on “a variety of self-reported [symptoms] with no objective support by examinations or diagnostic test results.” Dr. Hopkins pointed to the lack of objective support for the presence of a condition so severe as to prevent Magee from performing the material duties of his own or any occupation on a full-time basis. She saw no need for the restrictions or limitations Dr. Bell had placed on his patient.
Dr. Bell responded to this report, stating that Magee met the criteria released by the Centers for Disease Control (CDC) for CFS. He suggested that if MetLife questioned the functional ability of his patient that MetLife conduct a comprehensive work and function evaluation and an exercise physiology test. Dr. Bell suggested the exercise physiology test be conducted on two consecutive days. He expected it to show marked impairment in Magee’s aerobic capacity and suggested that this might help to document Magee’s disability. MetLife did not respond to this suggestion.
Dr. Ernest Gosline, a psychiatrist, was the second physician MetLife hired to look at Magee’s file. This doctor agreed that CFS was Magee’s primary condition, but that his secondary depression was a disabling impairment that prevented him from working. Unlike Dr. Bell, Dr. Gosline found that Magee’s medical record substantiated his impairments both through objective clinical findings and self-reported information.
MetLife approved Magee’s claim on December 18, 2004 based on Dr. Gosline’s opinion. The approval letter failed to explain the basis for why MetLife was agreeing to pay disability benefits, while MetLife’s internal records stated that the “[d]ocumentation is limited for the Chronic Fatigue Syndrome.” This would become a problem for Magee.
MetLife re-evaluates qualifications for disability benefits
In June 2005, MetLife asked Dr. Bell to provide an update on Magee’s condition. In addition to telling the disability insurance plan administrator that Magee’s CFS symptoms were still very severe, he sent the results from three questionnaires that have become standard in CFS diagnostic evaluations.
- A Krupp fatigue score of 56 – clearly in the disabled range.
- A modified Karnofsky score of twenty-five percent – also clearly in the disabled range.
- An SF-36 questionnaire – ”an extremely validated indicator of overall disability” which showed marked disability. The SF-36 questionnaire showed normal emotional functioning which suggested that his disability was physical not mental.
The tests had been given four times – in May 2004, July 2004, December 2005, and February 2006. Each time the results had been the same.
MetLife requested information from therapist Carame in February 2006. She responded that she had only seen him once in the past year, but that in her 20 years of practice she had never had a client who “made a more heroic effort.” She noted that his pain was excruciating.
Dr. Bell sent MetLife another Chronic Fatigue Initial Function Assessment in which he once again repeated his opinion that Magee still had “marked disability.” In April 2006, MetLife asked for Dr. Tariot’s assessment of Magee’s mental status. She reported that his mood was stable and that he was now coping more effectively with his CFS.
Social Security determines that CFS is completely disabling
Around this same time, March 2006, Magee’s application for Social Security disability benefits was approved. The Administrative Law Judge (ALJ) found that the evidence supported several “medically determinable ‘severe’ impairments: fibromyalgia, chronic fatigue syndrome, orthostatic hypotension, hypovolumia, and an affective disorder.” The ALJ observed that psychiatrist Dr. Tariot was in agreement with Dr. Bell when he found that Magee’s depression was secondary to his physical pain and illness. Finding that Magee’s claims were consistent with the medical findings and were supported by the opinions of the examining and treating physicians, the ALJ found Magee completely disabled. He concluded that Magee lacked the residual capacity to perform even sedentary work.
MetLife then requested Magee produce the Plan mandated reimbursement for overpayment of long-term disability benefits. The amount demanded? $51,886.27. Magee was able to reimburse MetLife all but $16,831.21 of the amount.
MetLife finds that mental health no longer basis for continuing disability benefit payments – begins questioning CFS as basis for continuing benefits
MetLife reviewed Dr. Tariot’s report of April 2006 and determined that Magee’s depression was no longer severe enough to be disabling. So the disability insurance plan sent his file to another independent physician consultant, Dr. Dennis Payne, a rheumatologist, to determine whether his CFS was disabling.
Dr. Payne observed that Magee’s evaluations by his physicians “have been extensive and appropriate.” After conferring with Dr. Bell, who acknowledged that there were “no objective findings of joint or muscle damage” or any identifiable “objective musculoskeletal problem(s)”, Dr. Payne gave MetLife his opinion. “[T]he objective medical record presently supports that Mr. Magee is capable of performing unrestricted work duties “, and that “there are no restrictions or limitations that are supported in the available medical data.” He went on to render his opinion that Magee’s CFS diagnosis was “based entirely upon subjective symptomatology without any objective findings on examination, laboratory testing, imaging data, or other specific objective studies to evaluate conventional disease.”
Dr. Bell disagreed with Dr. Payne’s conclusions that Magee was capable of “performing unrestricted work duties.” Dr. Payne conceded that CFS has been given the designation of a syndrome (constellation of symptoms) which has no histopathological correlates so the lack of clinical evidence would be expected “with the stated diagnosis.” Yet, Dr. Payne refused to alter his conclusions. He stated that “even with a syndrome, as with a well defined illness or disease, there must be objective measures that support functional restrictions or limitations before limitations can be placed on an individual.”
MetLife terminates disability benefits due to lack of clinical evidence for the second time
On July 20, 2006, MetLife notified Magee that after conducting a “thorough” review of his file, MetLife was going to terminate his long-term disability benefits. Dr. Payne’s conclusions were clearly the reason for the decision, for his findings and conclusions were cited in the termination letter. Magee was told that the lack of clinical evidence to support the existence of “a totally disabling condition preventing you from performing your occupation you are qualified for based on your education, training or experience” (such as office visit notes and physical exam findings that supported an ongoing severity of impairment) was the reason for the denial.
MetLife ignores request for definition of “objective evidence”
In December 2006, Magee asked MetLife to provide a definition of “what would constitute sufficient objective evidence to confirm [his] diagnosis of Chronic Fatigue Syndrome and the functional impairment that leads to my disability” because he had not been able to find during the four months since MetLife terminated his benefits “any objective diagnostic test that is suggested” for confirming his disability.” MetLife never responded.
Magee then filed an appeal with MetLife in March 2007. His appeal pointed to orthostatic hypotension and blood volume tests in his file which he claimed Dr. Hopkins had overlooked. He also stated that it appeared that Dr. Payne had also ignored the blood volume testing and orthostatic hypotension test, as well as Krupp Fatigue Severity Scale test, SF-36 Short Form Health Status, and Modified Karnofsky testing. He argued that the requirement to provide objective indications of CFS was unreasonable, and pointed to the numerous errors in MetLife’s documentation.
On March 8, 2007, Dr. Bell presented MetLife with additional documentation in support of Magee’s appeal. This included:
- Further clarification on what the blood volume test results showed – that Magee was suffering from idiopathic hypovolumia.
- Results from a February 6, 2007 MRI brain scan showing abnormal non-specific periventricular hyperintense white signals
- The results of a March 6-7, 2007 exercise test which demonstrated despite excellent effort that Magee’s oxygen uptake was much lower than that of a normal person
- Lab results showing low rennin levels in Magee’s blood.
Dr. Bell referred MetLife to published studies that have identified each of these results as potential markers for CFS. He took the time to carefully explain the diagnostic criteria he had applied, the basis for those criteria, and his experience in diagnosing and treating CFS. He concluded by stating that he saw no evidence that Magee’s symptoms were caused by depression.
MetLife sent Magee’s file to Dr. Joel Maslow, an infectious disease specialist. On March 22, 2007, he reached the same conclusion as Dr. Payne – Magee was not disabled. In Dr. Maslow’s opinion, because Magee’s claims of pain and cognitive dysfunction were not supported by objective findings from physical examination or neuro-psychiatric testing, and the objective evidence showed normal musculoskeletal function and no cognitive dysfunction supported his symptoms, Magee was functional.
Dr.Maslow questioned Dr. Bell’s experience with delivering and interpreting the SF-36 test and claimed that it could not be interpreted in isolation. He stated that the blood volume tests were also isolated and failed to present clear symptoms of orthostatis. One of the blood volume tests mistakenly referred to Magee as a female, so Dr. Maslow threw out the results from this test completely. He also claimed that the orthostatic hypotension measurements were inconsistent and too few to have any value.
Despite the fact that Dr. Maslow admitted that CFS fell outside of his expertise, he issued his conclusion that Magee’s symptoms were the result of depression rather than CFS, because depression had not been clearly excluded as a cause for his symptoms. He did not indicate in his opinion whether he had considered the two-day exercise test, the MRI scan, or the abnormal rennin levels when he stated that from “an infectious disease perspective, Mr. Magee does not meet the criteria for this syndrome.”
Dr. Bell responded on April 13, 2007 to Dr. Maslow’s report. He submitted a copy of his Curriculum Vitae to MetLife. MetLife should have noted the following facts:
- Dr. Bell had advised and chaired CFS committees at the U.S. Department of Health and Human Services and the National Institutes of Health.
- Dr. Bell had been the primary lecturer at more than eighty CFS conferences.
- Dr. Bell had been invited to write over 13 reviews about CFS, including several on how to diagnose CFS.
- Dr. Bell had authored thirteen published papers and five books about CFS including the book, “The Doctor’s Guide to Chronic Fatigue Syndrome,” published in 1994.
Dr. Bell was clearly one the best physicians that Magee could have chosen for his primary care provider.
Despite this information, MetLife denied Magee’s appeal on May 7, 2007. The denial was first based on Dr. Bell’s opinion that Magee no longer suffered from disabling depression and the fact that Magee was no longer seeing a mental health professional. MetLife deemed Magee no longer disabled from depression. MetLife went on to determine that though he had some medical conditions, the disability insurance company did not find that they would keep him from working in his own occupation.
MetLife pointed specifically to the lack of medical evidence from clinical findings to support the severity of Magee’s claimed functional limitations. MetLife informed Magee that when his file was reviewed from an infectious disease perspective, he failed to meet the criteria for chronic fatigue syndrome. The disability insurance company claimed that his health care providers had failed to substantiate his disability with comprehensive and specific information.
Magee had no choice. If he was to receive his rightful benefits for long-term disability, he would have to take action in the U.S. District Court’s Southern District of New York. His disability attorney would be a very important part of successfully proving that MetLife had abused its discretion when it denied his claim. We will discuss how the Court reviewed Magee’s claim in the article: New York court rules that MetLife abused discretion when it denied chronic fatigue claim (Part II).