Fibromyalgia and Long Term Disability Insurance - Recent Developments
Several recent court rulings have shown an enlightened approach to adjudicating disability insurance claims based on fibromyalgia. Rather than rejecting such claims as “subjective,” courts have recognized the difficulty claimants face in establishing disability in the absence of clear-cut medical tests. Although a physician's support for a disability claim remains an absolute requirement, the lessons to be drawn from the recent court rulings offer a roadmap to the successful prosecution of a claim for benefits.
Hawkins
Appellate Court Judge Richard Posner is one of the most influential jurists and legal scholars in the United States . His ruling in the case of Hawkins v. First Union Corp., 326 F.3d 914 (7 th Cir. 2003), issued in April 2003, resolves a number of crucial issues. Anticipating the Supreme Court's ruling released a month later in Black & Decker Disability Plan v. Nord, 123 S.Ct. 1965 (2003), which rejected a lower court's determination that the treating physician's opinions in disability benefit claims were required to be given deference, Judge Posner nonetheless ruled that the treating doctor, particularly a specialist in rheumatology, had more knowledge of the claimant's condition than a reviewing doctor who had never seen the patient. Even more important, though, Hawkins recognized that disability usually does not occur suddenly:
A desperate person might force himself to work despite an illness that everyone agreed was totally disabling. Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan , 195 F.3d 975, 982-83 (7th Cir. 1999); Wilder v. Apfel , 153 F.3d 799, 801 (7th Cir. 1998); Wilder v. Chater , 64 F.3d 335, 337-38 (7th Cir. 1995); Jones v. Shalala , 21 F.3d 191, 192-93 (7th Cir. 1994). Yet even a desperate person might not be able to maintain the necessary level of effort indefinitely. Hawkins may have forced himself to continue in his job for years despite severe pain and fatigue and finally have found it too much and given it up even though his condition had not worsened. A disabled person should not be punished for heroic efforts to work by being held to have forfeited his entitlement to disability benefits should he stop working.
Another crucial point made by the ruling is that one does not have to be bedridden to be deemed disabled. Attending classes, using a computer, and doing some housework does not, according to the court, indicate that Hawkins is capable of working on a regular basis. The court added:
And when one is working at home it is easier to interrupt one's work every few minutes if need be than to do so at the office. But what is most important and ties back to the plan's bad argument is that Hawkins' unfortunate choice in life is between succumbing to his pain and fatigue and becoming inert, on the one hand, and on the other hand pushing himself to engage in a certain amount of painful and fatiguing activity. If he does the latter, it does not prove that he is not disabled.
Nor was the court willing to accept an argument that the majority of people with fibromyalgia can work. Characterizing that argument as “the weakest possible evidence,” the court pointed out that a “majority could be 50.00001 percent.” However, what the court deemed “the gravest problem” with the defense consultant's report was its rejection of disabling pain as merely “subjective.” The court found that since the accuracy of the diagnosis was unquestioned, because pain complaints are typical of fibromyalgia, flat-out rejection of the disability claim is being in excess of what one would expect to see with fibromyalgia was improper.
Morgan
Another important appellate court ruling was issued in October 2003 in the case of Morgan v. Unum Life Insur.Co. of America , 346 F.3d 1173 (8 th Cir. 2003), which affirmed a lower court's ruling granting disability benefits to a claimant suffering from fibromyalgia. The claimant, a distinguished researcher in optical sciences for the Honeywell Corporation, struggled to work for as long as he could. However, when Dr. Morgan had to stop working, he continued to attempt to lead as normal a life as possible. His insurer, in an effort to challenge Dr. Morgan's disability claim, placed him under surveillance, and obtained videotape showing him driving, refueling his car, going to a bank, eating lunch at a restaurant, and going to a gym. Rejecting a claim that those activities were inconsistent with disability, the court sided with the claimant, finding those activities were not inconsistent with the claimed disability. The court was also highly critical of the insurer's failure to engage in any independent evaluation of the claim instead, the insurer relied solely on opinions from in-house reviewing doctors, who had no demonstrated expertise in the evaluation of fibromyalgia. Nor did the insurer give any consideration whatsoever to evidence showing the claimant's cognitive decline.
The lower court opinion in Morgan, along with two other court rulings, are also useful precedents that reject insurers' efforts to limit the payment of benefits for fibromyalgia by characterizing the condition as a “self-reported illness.” So far, Morgan, along with two other decisions, Russell v. Unum, 40 F.Supp.2d 747 (D.S.C. 1999) and McArdle v. Unum, 2001 U.S.Dist.LEXIS 20541 (D.Minn. 2001), have found that fibromyalgia is not “self-reported” since the trigger points can be verified on examination. One lower court has ruled to the contrary, however.
Finally, although not a fibromyalgia case, a recent lower court ruling discussing pain as the basis of disability is very instructive in fibromyalgia cases. In Smith v. Continental Casualty Co., 276 F. Supp. 2d 447 (D.Md. 2003), a federal judge in Maryland explained that complaints of pain cannot be characterized as exaggerated without evidence supporting such a conclusion. The court also offered a guide to evaluation of pain:
No test can measure how much pain a person feels. Indeed, each person's experience of pain is unique.
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The evidentiary assessment of pain cannot reasonably differ whether a claimant seeks disability benefits under a private plan of insurance or under the public scheme of social security. Willis v. Baxter Int'l, Inc. , 175 F. Supp. 2d 819, 833 (W.D.N.C. 2001); Palmer v. Univ. Med. Group , 994 F. Supp. 1221, 1233 (D. Or. 1998), abrogated on other grounds by Hensley v. Northwest Permanente P.C. Retirement Plan & Trust , 258 F.3d 986, 994-95 (9th Cir. 2001). Proof is proof. Thus:
Once an underlying physical or mental impairment that could reasonably be expected to cause pain is shown by medically acceptable objective evidence, such as clinical or laboratory diagnostic techniques, the [plan administrator] must evaluate the disabling effects of a disability claimant's pain, even though its intensity or severity is shown only by subjective evidence. If an underlying impairment capable of causing pain is shown, its intensity can, by itself, support a finding of disability. Objective medical evidence of pain, its intensity or degree (i.e., manifestations of the functional effects of pain such as deteriorating nerve or muscle tissue, muscle spasm, or sensory or motor disruption), if available, should be obtained and considered. Because pain is not readily susceptible of objective proof, however, the absence of objective medical evidence of the intensity, severity, degree or functional effect of pain is not determinative.
Hyatt v. Sullivan , 899 F.2d 329, 337 (4th Cir. 1990). Because a claimant need not present clinical or diagnostic evidence to support the severity of pain, a plan administrator cannot discount self-reports of disabling pain solely because the objective medical evidence does not fully support them. Hawkins v. First Union Corp. Long-Term Disability Plan , 326 F.3d 914, 919 (7th Cir. 2003);O'Donnell v. Barnhart , 318 F.3d 811, 816 (8th Cir. 2003); Light v. Soc. Sec. Admin. , 119 F.3d 789, 792 (9th Cir. 1997). "'Excess pain' is, by definition, pain that is unsupported by objective medical findings." Cotton v. Bowen , 799 F.2d 1403, 1407 (9th Cir. 1986).
In addition to objective medical evidence, an evaluation of the vocational impact of pain must also consider: the claimant's work history; observations of the claimant by third parties, such as coworkers and superiors; the professional opinion of treating and examining physicians; the claimant's history of pain management and drug therapy; the dosage, effectiveness, and side effects of medications; the claimant's reputation for truthfulness; the consistency (or lack thereof) in the claimant's own statements; the congruity (or lack thereof) between the reported symptoms and the claimant's daily activities. O'Donnell , 318 F.3d at 816; Light , 119 F.3d at 792; Palmer , 994 F. Supp. at 1233. The last merits particular scrutiny. See Mickles v. Shalala , 29 F.3d 918, 921 (4th Cir. 1994) (Hall, J., announcing and concurring in the judgment) ("The only fair manner to weigh a subjective complaint of pain is to examine how the pain affects the routine of life.").
Lessons Learned
These cases are all extremely informative. First, they illustrate that attempting to live a normal life is not incompatible with disability. These cases also show that the insurers' defenses are not insurmountable and that disability cases can be won, particularly in situations where the insurer has failed to obtain any independent proof supporting a denial of benefits. However, from experience gained in litigating these cases, the following suggestions are of crucial importance:
- If you have been working for a period of time after receiving a diagnosis, make sure you consult with your physician before submitting a claim for disability to avoid a defense of “what's different now?” New symptoms such as increased pain, increased fatigue, or new cognitive impairments need to be documented in the medical records.
- Make sure you are seeing a doctor experienced in treating fibromyalgia and stick with that doctor. Insurers are wary of “doctor shopping;” insurers also question disability reports from doctors who have only seen the claimant on a single occasion.
- Follow your doctor's recommendations. For example, if you have complaints about cognitive impairments and your doctor recommends neuropsychological testing, by all means pursue that testing it will carry far more weight than your allegation of cognitive impairments or a note in a doctor's chart that says the patient is complaining about cognitive impairments. Sleep studies can also be useful in providing additional supporting evidence.
- Be realistic. In a federal case from Indiana , a claimant was disqualified from receiving disability benefits because she manufactured and sold jewelry at craft shows throughout the Midwest and engaged in strenuous adventure travel. Taking an occasional class, sending and receiving e-mails, or engaging in a modest hobby are not inconsistent with disability, though.
Mark D. DeBofsky is an attorney who practices in Chicago , Illinois with the law firm of Daley, DeBofsky & Bryant concentrating in the representation of individuals in disability benefit claims including disability insurance and Social Security disability. He also serves as an adjunct Professor of Law at the John Marshall Law School, Chicago, Illinois.
