Objective versus Subjective: Evidence Requirements in ERISA Disability Lawsuits
Author: Attorney Gregory Dell
It is common when dealing with claims for short and long term disability benefits to have the disability insurance company request “objective evidence” to support your claim that you are disabled due to a certain impairment. If your impairment, for example, involves a neck or back condition, then a MRI or a CT scan revealing herniated discs or some similar pathology, would easily be considered “objective evidence”. However, if your disability results from a condition that cannot be measured on an X-ray, MRI or CT scan, or with laboratory tests – a condition like chronic pain, headaches, or vertigo – what do you do if the insurance company asks for “objective evidence”?
In a recent New York ERISA lawsuit, the claimant, Mr. M, was a Partner in a large law firm and practiced real estate law. He stopped working due to significant tinnitus, vertigo, hearing loss, headaches, and intractable ear pain. Attorneys Dell & Schaefer did not represent Mr. M in his claim against Prinicpal Life.
The courts have 2 general rules with regards to subjective evidence versus objective evidence.
Subjective Complaints, Such As Pain/Fatigue, Must Be Taken Into Consideration During Evaluation Of The Disability Claim
First, a plan administrator must give sufficient attention to subjective complaints in its review of the disability claim. They may not dismiss complaints which are merely subjective, such as pain. Additionally, if the subjective evidence is not given credit or taken into consideration, under ERISA, the plan administrator must inform the claimant in writing and provide the claimant with the reason it discounted the evidence so that the claimant can adequately prepare an appeal for further review of the claim.
In the New York long term disability insurance lawsuit, Mr. M submitted numerous medical records, Attending Physician Statements and other records which documented his symptoms and the assessments of his treating physicians and specialists. Mr. M’s internist documented his complaints of pounding in his ears and head, lightheadedness, dizziness and loss of balance. The internist diagnosed vertigo secondary to labyrinthitis and referred Mr. M to the ENT specialist. The ENT physician noted Mr. M’s 8 month history of ear pain, tinnitus and hearing loss which developed into the severe ear pain and pounding sensation in his ears and head which caused Mr. M to stop working. The ENT diagnosed sinusitis, sensorineural hearing loss, tinnitus and headache and referred Mr. M for a neurological evaluation. The ENT specialist submitted additional documentation to Principal Life stating that, in addition to his other symptoms, Mr. M seems very foggy, unable to concentrate and is presently unable to perform his job. The Neurologist documented Ms. M’s symptoms of tinnitus, vertigo, hearing loss, headaches, lightheadedness and generalized weakness. In a personal statement, Mr. M stated that as a result of his symptoms, especially the pain, he was not able to read for any length of time or concentrate adequately to address the complicated issued typical for his work day. The last day he tried to work, his pain and disorientation made it impossible to do any work at all.
In its initial denial of Mr. M’s claim, the court determined that Principal Life did not give any credit to Mr. M’s subjective complaints, nor did it give any specific reason for its decision to discount his subjective complaints. Rather, Principal Life stated that tinnitus was subjective, as was noted by Mr. M’s ENT specialists. However, Principal Life failed to mention that the ENT specialist also stated that he found Mr. M’s subjective complaints credible and that Mr. M appeared “to be with significant tinnitus, hearing loss and intractable head pain.”
In its final denial, Principal Life continued to base their denial on the subjective nature of Mr. M’s complaints. Principal Life stated that Mr. M’s “self-reported loss of orientation and concentration was never verified by objective testing and remained self-reported only” and that “[m]any of the claimant’s complaints…[were] never observed by his neurologist and [were] never confirmed by exams.” The court notes that pointing out that evidence is subjective is not a reasonable basis to not give that evidence any weight. When denying his claim, Principal Life may not only state that the evidence was subjective in nature, but it must either assign some weight to the evidence or provide a reason for why it decided not to.
The court further notes that, although there is no objective evidence of tinnitus, several of Mr. M’s specialists advised that there is no objective test for tinnitus. Rather, tinnitus is consistent with hearing loss, which can be tested objectively, and the records in this case indicated undisputed objective evidence of Mr. M’s hearing loss. Additionally, in its approval of Mr. M’s Social Security Disability benefits, the SSA Commissioner noted that Mr. M’s long history of hard work supported his credibility in reporting the nature and severity of his subjective symptoms.
Insurance Companies Cannot Require Objective Evidence Of An Impairment That Is Subjective In Nature, And For Which No Objective Tests Exist
The second distinction courts make regarding subjective evidence versus objective evidence is that it is unreasonable for a disability insurance company/plan administrator to insist on objective evidence to establish the existence of a disabling impairment. As stated above, in Mr. M’s case, his own physicians stated there was no objective test to prove the existence of tinnitus. The court noted that it was unreasonable for Principal Life to request objective evidence of Mr. M’s impairment when it had not identified any test that could be performed or any objective findings that it would have reasonably expected to see given Mr. M’s symptoms.
However, it should be noted that, although a claimant cannot be expected to provide objective evidence of an impairment/illness that is subjective in nature (tinnitus, chronic fatigue, fibromyalgia, headaches, etc.), the disability insurance company/plan administrator is permitted to require objective evidence that the claimant is unable to work.
Denial overturned and case remanded back to Principal Life for reconsideration
In addition to the above errors committed by Principal Life in its denial of Mr. M’s claim for long term disability benefits, the court also determined that Principal Life selectively considered certain evidence contained in the records that supported the denial, while omitting other evidence which supported Mr. M’s claim.
Because Principal Life failed to give weight to Mr. M’s subjective complaints, improperly requested objective evidence of his subjective impairment and considered only selected evidence, the court determined that Principal Life’s decision to deny Mr. M’s disability benefits was arbitrary and capricious. Unfortunately, rather than award Mr. M disability benefits, the court overturned the denial but remanded the case back to Principal Life to allow them to consider the evidence under the “appropriate legal standards.”
If you have questions regarding your claim for disability benefits, or if your disability claim has been denied by Principal Life or any other disability insurance company, feel free to contact Disability Attorneys Dell & Schaefer for a free consultation.