Opinion
Case No. 3:02CV7282
May 2, 2003
ORDER
Plaintiff Constance S. Pelchat brings this action against defendant UNUM Life Insurance Company of America ("UNUM") under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B) for denial of long-term disability benefits. This court has jurisdiction pursuant to 42 U.S.C. § 1331. Pending are cross-motions for judgment on the administrative record. For the following reasons, plaintiff's motion shall be granted and defendant's motion shall be denied.
BACKGROUND
Plaintiff began working as a scheduler/registrar for Promedica Health Systems ("Promedica") at the Toledo Hospital in 1979. Typical duties of a scheduler/registrar include scheduling mammograms, ultrasounds, and dexascans; accepting testings orders; and providing telephone callers with detailed information regarding testing and treatment preparations, appointment time, and other directional information. The position required plaintiff to sit at a desk for extended periods of time.
Between 1977 and September, 1998, plaintiff was in five injury-causing motor vehicle accidents. According to plaintiff, this has resulted in a long history of low back and neck pain.
In September, 1998, plaintiff was in her sixth car accident. Dr. Ahmed Zakeri, plaintiff's neurosurgeon, noted: "She had immediate pain and pain down both arms, as well as increasing low back pain and right leg pain in a radicular fashion in the posterior aspect of her leg. . . . She still has neck pain that is constant, as well as intrascapular pain and occipital headaches." R. 00211.
In December, 1998, Dr. Zakeri concluded that plaintiff suffered from: "1) Myofascial pain involving the dorsal spine, possible cervical radiculopathy . . . 2) Cervical radiculopathy from spondylosis and disc herniation. 3) Possible lumbar radiculopathy." R. 00211. If plaintiff did not respond to conservative treatments, Dr. Zakeri concluded that surgery would be considered.
The Fibromylagia Syndromes, which include myofascial pain syndrome and fibromyositis, are a group of disorders characterized by achy pain and stiffness in the tissues, including muscles, tendons, and ligaments. Although the causes of such syndromes are unknown, they may be triggered by physical or mental stress, inadequate sleep, an injury, exposure to dampness or cold, certain infections, and occasional rheumatoid arthritis or a related disorder. Robert Berkow, M.D. et al. ed., The Merck Manual of Medical Information, 250 (Home ed. 1997).
On February 9, 1999, plaintiff underwent a discectomy with fusion for "intractable neck and bilateral arm discomfort [that was] unresponsive to conservative means." R. 00228. As for plaintiff's back and leg pain unrelated to her surgery, Dr. Zakeri concluded: "we will have to deal with the back and leg at a different time, depending on how the symptoms persist." R. 00229.
After the discectomy, plaintiff was on short-term disability under a disability benefits plan purchased by Promedica from UNUM. In April, 1999, plaintiff began physical therapy, and in June, 1999, she began pain management.
On May 5, 1999, in a follow-up report to plaintiff's surgery, Dr. Zakeri stated:
Her intrascapular pain and arm pain is better. She still has some numbness in her right arm, and some pain going down to the left elbow area, as well as headaches that has not changed since prior to surgery. She does have some shoulder tenderness which got somewhat worse after therapy. The therapy is not really helping that much, but she is still going through with it.
R. 00136.
Dr. Zakeri also ordered an MRI. He concluded:
she can continue with the therapy, for what seems to be mostly myofascial pain. I am not certain, based on our conversation, whether she should be able to do her previous job, given the persistence of her symptoms. However, she will continue with the therapy, and see how she comes along.
Id.
Plaintiff was scheduled to return to work on May 10, 1999. After her surgery, however, plaintiff's doctor concluded that she needed more time to recuperate and estimated her return to work date as June 14, 1999. Plaintiff's short-term disability benefits were exhausted on May 12, 1999. UNUM thereafter began paying plaintiff long-term disability benefits.
Plaintiff's May 6, 1999, MRI revealed that disc fusion was consistent with plaintiff's surgery. After comparing plaintiffs May, 1999, MRI with a previous cervical spine MRI that was taken before her surgery, plaintiff's attending physician, Dr. Parag Parikh, observed: "there is no recurrent disc herniation or spinal stenosis evident." R. 00323.
After a June 21, 1999, follow-up examination, Dr. Zakeri reported:
She is still having significant neck discomfort and "knots" in her paraspinal area, as well as shoulder pain and headaches. Her neurological exam shows good strength and good range of motion. She feels that as long as she is not doing any work-related activity she is fine. On her MRI of the cervical spine, there is no evidence of spinal cord compression. There is good decompression at the C5-6 level, and no evidence of ongoing neural compression. . . . I am referring her to pain management.
R. 00528.
On July 6, 1999, plaintiff returned to work on a part-time basis. She anticipated returning to full time work in early August, 1999. Dr. Phillip Fisher, plaintiff's primary care physician, concluded, however, that her recovery had been somewhat delayed. He ordered that she continue on a part-time basis until October 4, 1999, due to "cervical spondylosis, tension headaches and chronic migraines related to a motor vehicle accident on 9/4/98." R. 00320.
UNUM extended plaintiff's disability benefits only through August 5, 1999. After complaints by plaintiff, UNUM informed her that before it could extend disability benefits again, she needed to explain her alleged disability. In a letter to plaintiff, UNUM wrote: "We need specific restrictions and limitations explaining what activities you can and cannot do. We need to know why your recovery has been so delayed. We also need clinical data to support your continued disability." R. 00366.
By October, 1999, plaintiff claims she had severe financial problems as a result of UNUM's failure to extend her disability benefits. On October 5, 1999, plaintiff claims she was forced to return to work full-time. Dr. Fisher released her to work full-time, although in a letter to UNUM, he stated:
I returned [plaintiff] to full-time work on October 4, 1999. She was only fit for part-time work because sitting caused tremendous muscle spasms in her neck and back leading to subsequent shortness of breath, diaphragmatic spasms along with tension and migraine headaches. She continues to have significant muscle spasms which occasionally impairs her ability to breathe.
R. 00392.
Later that month, plaintiff filed a complaint with the Ohio Department of Insurance against UNUM, claiming that she was dissatisfied with its service and that its denial of her disability benefits resulted in harassment to plaintiff and her doctors. Plaintiff stated:
My problem is that I'm unable to sit in a chair for 4 hours per day much less 8 hours which employers require. I'm taking so many prescription medications I've almost been the cause of accidents several times while driving to work. The muscle spasms in my entire back are excruating [sic]. They make breathing difficult and this has been documented at the Stress Care Pain Management. I feel disability insurance is for people who are medically unable to work. Yet the problems I'm experiencing in receiving them almost make dying a better option. I'm having difficulty paying my medical bills and daily living expenses. I've not received a disability check from Unum paying the other four hours per day to supplement the 4 hours I'm working per the contract at Unum from August through October, 1999. I returned to work at the Toledo hospital sch. dept full time on October 4, 1999. I had to leave early because of muscle spasms and pain on Friday October 8, 1999. I also had to ask several of my co-workers to keep an eye on my work because the combination of pain medication and muscle relaxers severely affect my ability to do my job.
R. 00458.
On October 8, 1999, plaintiff's psychologist, Dr. Glenn P. Swimmer, informed UNUM that plaintiff was being treated for "a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition." R. 00389. According to Dr. Swimmer, this "disorder" occurs when there is:
A) Pain in one or more anatomical sites as the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention;
B) The pain causes clinically significant distress or impairment in social, occupational, or other important areas of functioning;
C) Psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain;
D) The symptom or deficit is not intentionally produced or feigned, as in Factitious Disorder or malingering;
E) The pain is not accounted for by mood, anxiety, or psychotic disorder and does not meet criteria for Dyspareunia.
R. 00389.
Dr. Swimmer informed UNUM that the general medical condition plaintiff suffers from is myofascial pain disorder. Id. Dr. Swimmer's belief was based on information received from Dr. William James, who treated plaintiff at the Toledo Hospital Pain Management Clinic. R. 00580.
On October 26, 1999, the Toledo Hospital conducted a functional capacity evaluation ("FCE") on plaintiff at the request of Dr. Zakeri. The results of the FCE noted that "Ms. Pelchat is able to work at the sedentary-light physical demand level for an eight hour day according to the Dictionary of Occupational Titles, U.S. Department of Labor, 1991," and that plaintiff suffered a "2% whole body impairment for the cervical spine with invalid results." R. 00501.
The FCE also concluded that:
[plaintiff] passed only 23/38 validity criteria during the FCE, 61%, which suggests some poor effort and borderline invalid FCE results. Based on this profile, other data should be considered to help understand the true functional ability and to assist with medical and vocational planning.
R. 00501.
Plaintiff thereafter informed defendant, by letter, that the FCE did not accurately evaluate her functional capacity because the test kept her in constant motion. According to plaintiff, the muscles spasms that inhibit her breathing do not begin until she is in one position for one to two hours. R. 00502.
On November 9, 1999, UNUM issued plaintiff disability benefits for the period starting August 6, 1999 and ending October 4 — when plaintiff returned to full-time work.
In November, 1999, plaintiff terminated her employment with Promedica "as a result of her physical inability to continue the employment." Pl.'s Complt. ¶ 11. Plaintiff thereafter renewed her claimed for long-term disability benefits with UNUM.
As part of its review of plaintiff's long-term disability claim, UNUM received the medical records of all the physicians, therapists, and specialists that treated plaintiff throughout the 1990's.
On December 3, 1999, UNUM denied plaintiff's claim. Defendant explained:
Based on the information provided it appears that your functional capacity is not impacted at this time as the results of the FCE indicate that you have the ability to work an 8 hour day in an occupation with sedentary to light physical demand. As your occupation is considered sedentary we will be unable to pay you future benefits past the October 4, 1999 that we have paid you through.
R. 00507.
On December 25, 1999, plaintiff requested an administrative review of UNUM's denial. In her letter to UNUM, plaintiff again described the condition that prevents her from working:
My primary problem is I have muscle spasms so severe in cervical and thoracic spine that after sitting at work for a short time they seize up my diaphragm and I am left gasping for breath. I can only relieve this by taking a muscle relaxer, waiting for 15 minutes, laying down on the floor at work on my abdomen, lifting my right leg over my left until I hear and feel a large CRACK. I'm then able to expand my chest enough that I can gulp in the air I couldn't before. I am able to breath somewhat normally for a short time before the process begins again.
R. 00591.
Plaintiff further argued that while she was originally on disability leave for her February, 1999, cervical surgery, her medical leave was extended for other conditions, including myofascial pain and muscle spasms that impede her breathing. R. 00593.
As part of its administrative review, defendant sent the following questions to plaintiff's primary care physician, Dr. Fisher, to which, in January, 2000, he responded:
Question 1: A functional capacity evaluation exam was performed on Ms. Pelchat on 10/26/99 which indicates Ms. Pelchat is able to work at a sedentary to light physical demand level for an 8 hour day. Do you agree with this finding? If not, please explain. R. 00600
Answer 1: No, she has chronic Migraines and Myofacial pain causing Cervical and Thoracic muscle spasms impeding her ability to breath. This cannot be controlled enough with medication to allow her to maintain the attendance required to hold any form of employment. She has had physical therapy many times over the last 15 years. Nerve blocks 8 times, manipulation dozens of times by Dr. P. Brolinson and Dr. R. Wohlwend. She has had cervical spine surgery. None of these have enabled her to continue working or relieve her pain enough to allow her to return to work. R. 00784.
Question 2: what is her current diagnosis? Please show what clinical data you have to support this diagnosis. R. 00599.
Answer 2: Migraine and tension headaches that I have treated her for the last 15 years. She is currently taking Midrin, Tenormin and Elavil for this. Chronic Muscle Spasms and severe shortness of breath caused by muscle spasms from a MVA [motor vehicle accident] in 1992 to present. Myofacial pain diagnosed 12-2-98 by Dr. A Zakeri. Dr. W. James Pain Management Specialist and Dr. G. Swimmer have also diagnosed Connie with Myofacial Pain during her visits with them in 1999. She is currently taking Flexeral, Zanax, Elavil and Oxycontin for this condition. R. 00784.
Question 3: If you feel Ms. Pelchat is unable to work at this time, please describe what her specific restrictions and limitations would be? R. 00599.
Answer 3: She is unable to stand for any length of time due to Elvoconvex Lumbar Scoliosis, Sacral Arachnoid Cyst and a Tarlov's Cyst, per Dr. Zakeri's office on 12-9-98 and an MRI done at the Toledo Hospital on 12-14-99. She is unable to sit for more than two hours because of Chronic Cervical and Thoracic muscle spasms causing severe shortness of breath and Myofacial pain. R. 00784.
Question 4: If Ms. Pelchat has restrictions and limitations, how do they prevent her from working as a scheduler/registrar which is classified as a sedentary occupation? R. 00599
Answer 4: She can't sit for more than 2 hours, her medication dulls her senses making simple tasks to [sic] difficult to perform. Her Myofacial Pain, Migraine and tension headaches cause her to miss to [sic] much work to hold any job because of attendance requirements. R. 00784.
* * *
Question 6: It appears that her symptoms are subjective in nature and there is no clinical data to support her condition. Would you agree? R. 00599.
Answer 6: No. Dr. Zakeri, Dr. W. James, Dr. G. Swimmer and myself have all examined her and seen the chronic Myofacial pain. The muscle spasms are visible to the naked eye and do not respond to treatment because of the multi trauma she has suffered. I have seen her during migraine attack. This is not subjective. R. 00784.
* * *
Question 8: What is your prognosis? R. 00599.
Answer 8: Her migraines and tension headaches are increasing. As long as she rests at home her Myofacial pain and Cervical and Thoracic Muscle Spasms are controllable with medication. R. 00784.
In March, 2000, a representative from UNUM conducted a telephone interview with plaintiff. Plaintiff indicated that she was able to do light housework, vacuum, dust, and gardening — although she could only rake a small patch at a time, had to sit down to put the leaves in a bag, and had to take a muscle relaxer and pain pill before this activity. Plaintiff also said that she has two or three muscle spasms a day, and that when she is reading or watching television, she must constantly change positions. R. 00624.
In April, 2000, defendant contacted plaintiff's supervisor at Promedica, who informed defendant that plaintiff always had pain, got up a lot, bent over in pain, got on the floor for back stretches, and walked slowly. R. 00650.
On May 3, 2000, UNUM informed plaintiff that after a review of her file by its medical consultant, she retains "the functional capacity to work a eight hour day in a occupation classified as sedentary to light." Defendant therefore upheld its decision denying plaintiff long-term disability benefits. UNUM explained:
[T]here does not seem to be any objective clinical data to support impacted functional capacity. . . . There is no objective medical documentation to support why you wee [sic] unable to continue working. An exam, performed in April 1999 by Dr. Zakeri, showed good strength and range of motion. MRIs have showed no evidence of spinal cord compression. The only medical records in file that indicate spasms were noted in paravertebral muscles are from Dr. Wohlend, from November 4, 1994. It appears your complaints of migraines and cervical and thoracic muscle spasms are self reported, which are only measurable by what you tell your physician. There does not appear to be any medical reason why cannot work at least part time and the likelihood of part time work exacerbating your conditions is low because there is no apparent pathology. Myofascial pain is a diagnosis of exclusion and no definitive pathology has been found. The pain you experience does not seems to be necessarily brought on by sedentary activities. In addition, there is no objective medical data documenting cognitive problems from your condition or medications.
R. 00659.
In August, 2000, plaintiff retained counsel and requested another review of her claim. Plaintiff's attorney argued that the medical evidence supports a decision that Pelchat is disabled due to "chronic migraines" and "myofacial pain causing cervical and thoracic muscle spasms impeding her ability to breath." R. 00675.
Defendant thereafter requested its on-site physician, Dr. Richard D. Corzatt, to review plaintiff's file. Dr. Corzatt concluded:
From an objective standpoint, she has had cervical spine surgery with a relatively good result. She has had chronic low back pain that has not significantly deteriorated. There is not objective evidence to support her not being able to work full or part time. Its unclear whether the multiple medications she is taking affect her cognitive ability to perform her occupation. Patients who take opiate analgesics over a period of time develop a relative immunity to them.
R. 00687.
On November 15, 2000, UNUM informed plaintiff that "[b]ased on a through [sic] review of the claim file, our determination remains that we have no objective medical evidence, which would preclude Ms. Pelchat from performing her sedentary occupation." R. 00694.
In December, 2001, an administrative law judge awarded plaintiff benefits for total disability under Social Security. Accordingly, plaintiff once again requested that defendant reconsider its denial of her claim.
On February 12, 2002, defendant upheld its original decision denying benefits beyond October 5, 1999, stating that a "disability decision, as well as any payment, made by the Social Security Administration does not determine whether an individual meets the definition of disability as stated in the UNUM policy." R. 00707.
Plaintiff exhausted her administrative remedies. Therefore, in June, 2002, she filed this lawsuit arguing that UNUM violated ERISA § 1132 and was in breach of its contract of insurance for refusing to pay her long-term disability benefits under the terms of the policy. Pending are cross-motions for judgment on the administrative record.
One requirement in an action brought pursuant to ERISA for review of denial of benefits is that plaintiff must exhaust all administrative remedies prior to initiating the action in federal court. See 29 U.S.C. § 1133(2); see also Miller v. Met. Life Ins. Co., 925 F.2d 979, 986 (6th Cir. 1991); Baxter v. C.A. Muer Corp., 941 F.2d 451 (6th Cir. 1991). As indicated above, plaintiff has met this preliminary threshold in the case at bar.
STANDARD OF REVIEW
Plaintiff's long-term disability insurance policy with UNUM is an "employee welfare benefit plan" under ERISA § 1002(1). A plan participant or beneficiary may bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan[.]" ERISA § 1132(a)(1)(B).
A denial of benefits under ERISA § 1132(a)(1)(B) is reviewed de novo "unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire Rubber v. Bruch, 489 U.S. 101, 115 (1989). Where an ERISA plan expressly affords discretion to trustees to make benefit determinations, a court reviewing the plan administrator's actions applies the arbitrary and capricious standard of review. Id. at 110-12.
Parties in this case agree that the arbitrary and capricious standard of review should be applied. The policy states: "When making a benefit determination under the Policy, UNUM has discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy." R. 00749.
The arbitrary and capricious standard is the least demanding form of judicial review of administrative action. See Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1988). "A decision is not arbitrary and capricious if it is based on a reasonable interpretation of the plan." Shelby County Health Care Corp. v. Southern Council of Indus. Workers Health and Welfare Trust Fund, 203 F.3d 926, 933-34 (6th Cir. 2000). As the Sixth Circuit explained in Williams v. Int'l Paper Co., 227 F.3d 706 (6th Cir. 2000):
When applying the arbitrary and capricious standard, the court decides whether the plan administrator's decision was "rational in light of the plan's provisions." Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir. 1988). Stated differently, "when it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious." Davis, 887 f.2d at 693.227 F.3d at 712.
In applying this standard, the court only considers the evidence that was before the decision-maker when it made its final decision. Perry v. Simplicity Eng'g, 900 F.2d 963, 966 (6th Cir. 1986). In this case, the administrative record before UNUM consisted of Promedica's Group Long-Term Disability policy and the Pelchat Claim File.
Where, as here, the same entity both funds and administers a plan, it has an actual conflict of interest because "it incurs a direct expense as a result of the allowance of benefits and it benefits directly from the denial or discontinuation of benefits." Killian v. Healthsource Provident Adminers., 152 F.3d 514, 521 (6th Cir. 1998). A conflict of interest, however, does not alter the standard of review. Id. The existence of a conflict of interest, therefore, is weighed as one factor in determining whether UNUM's decision to deny plaintiff's long-term disability benefits was arbitrary and capricious. Peruzzi v. Summa Medical Plan, 137 F.3d 431, 433 (6th Cir. 1998); Cochran v. Trans-General Life Ins. Co., 60 F. Supp.2d 693, 699 (E.D.Mich. 1999).
DISCUSSION I. Plaintiff's State Law Breach of Contract Claim
In her complaint, plaintiff alleges that defendant breached its contract for insurance by "refusing to pay benefits due to Plaintiff." Pl.'s Complt. ¶ 21. Plaintiff's state law breach of contract claim is subject to preemption pursuant to ERISA, § 1144(a). It is well-established that ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. . . ." 29 U.S.C. § 1144(a).
II. ERISA § 1132
Under defendant's policy, a claimant is disabled when UNUM determines:
— you are limited from performing the material and substantial duties of your regular occupation due to sickness or injury; and
— you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury.
After 24 months of payments, you are disabled when UNUM determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.
R. 00742.
The policy defines the term "regular occupation" as:
the occupation you are routinely performing when your disability begins. UNUM will look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location.
Id.
Plaintiff's policy also sets forth conditions under which benefits are to be discontinued, including when the insured is able to work in his or her regular occupation on a part-time basis. R. 00733.
A. Basis of UNUM's Denial
UNUM argues that it denied plaintiffs claims for long-term disability benefits because the only objective medical evidence in plaintiff's claim file supports its decision that plaintiff is capable of performing the material and substantial duties of her sedentary occupation — on at least a part-time basis.
Defendant points to the FCE which concluded that, despite plaintiff's poor effort, she had a total body impairment of 2% and she could work an eight hour day in a sedentary occupation. Compared to plaintiff's older medical records, where she was diagnosed with a total impairment of 11% in 1994 and a total impairment of 25% in 1997, defendant concludes that plaintiff's cervical spine condition must have dramatically improved following her February, 1999, surgery. Defendant reasons: "If she was able to continue her work at Toledo Hospital for a number of years as a scheduling clerk while 11 — 25% impaired, why could she not perform this same occupation while only 2% impaired?" Def.'s Br. at 14.
Defendant also points to the May, 1999, MRI. According to UNUM, because Dr. Parikh and Dr. Zakeri, after comparing the May, 1999, MRI with one taken before her February, 1999, neck surgery, found that there was no evidence of recurrent disc herniation or spinal cord compression, the neck surgery must have been a success and plaintiff cannot still be suffering from neck or back injuries.
The other evidence defendant relies on includes plaintiff's own statements and actions, including plaintiff's statement that she was able to perform light housework, vacuuming, dusting, gardening, raking, and putting leaves in a bag. Accordingly, UNUM argues, "Ms. Pelchat's self reported activities certainly did not suggest an inability to perform sedentary work." Def.'s Br. at 14.
Similarly, defendant points to plaintiff's return to work in July, 1999, and Dr. Fisher's release of her to work part-time in July, 1999, and full time in October, 1999, as evidence that she was fully capable of performing her duties as a scheduling clerk.
Defendant concludes:
Other than her own description of pain, there is no objective support in the record that demonstrates why, after being released to full time work, Ms. Pelchat suddenly could not work even on a part-time basis. Rather, Ms. Pelchat points to certain statements within the administrative record that she is incapable of working, these opinions were not based on objective medical testing, however, but were based entirely on Ms. Pelchat's subjective component of pain and weakness.
Def.'s Reply at 2.
B. Analysis
The evidence in plaintiff's claim file shows that plaintiff's treating physician, Dr. Fisher, informed UNUM that plaintiff had "chronic Migraines and Myofacial pain causing Cervical and Thoracic muscle spasms impeding her ability to breath." R. 00784. Dr. Fisher further stated that plaintiff could not work an eight hour day at a sedentary occupation, was unable to stand for any length of time, and was unable to sit for more than two hours. He also informed UNUM that plaintiff's medication dulled her senses making simple tasks difficult to perform, the muscle spasms in her back were visible to the naked eye, and that plaintiff would not respond to treatment because of the multi-trauma she has sustained. Dr. Fisher noted that he had seen plaintiff during a migraine attack and "this is not subjective" Id. He concluded: "As long as she rests at home her Myofacial Pain and Cervical and Thoracic Muscle Spasms are controllable with medication." Id.
Dr. Swimmer, plaintiff's psychologist, informed UNUM that plaintiff suffered from a pain disorder associated with both psychological factors and a general medical condition — myofascial pain disorder, as diagnosed by Dr. Zakeri, Dr. James, and Dr. Fisher.
Despite these uniform and unwavering conclusions by plaintiff's treating physician and psychologist, UNUM denied plaintiff's claim. In doing so, UNUM refers to those parts of plaintiff's medical records that are adverse to her and dismisses other parts as lacking "objective medical evidence." UNUM has not, however, rebutted plaintiff's physician's diagnosis with any reliable evidence demonstrating she was able to perform the material and substantial duties of her occupation as a scheduler/registrar.
UNUM gives much credence to the FCE. In fact, in UNUM's first denial letter to plaintiff, the FCE is the exclusive reason plaintiff was denied coverage. The FCE is given as reason for denial of coverage in the May, 2000, letter and November, 2000, letter as well. It is undisputed, however, that the results of the FCE are "borderline invalid," and, as the evaluators themselves noted, "other data should be considered" to understand plaintiff's true functional ability. Additionally, plaintiff informed UNUM that the FCE could not measure whether she was capable of performing her job as a scheduler because the test kept her in constant motion. Plaintiff argues that she cannot work as a scheduler, inter alia, because she cannot sit for extended periods of time without back spasms.
In its December 3, 1999, letter, UNUM wrote: "Based on the information provided it appears that your functional capacity is not impacted at this time as the results of the FCE indicate that you have the ability to work an 8 hour day in an occupation with sedentary to light physical demand." R. 00507.
Defendant also argues that because plaintiff admitted she was capable of completing light household chores, she must be able to work as a scheduler/registrar. Defendant neglects to note, however, that plaintiff actually informed UNUM that she could vacuum and dust, but she could not scrub, reach high, or do windows. R. 00624. As to gardening, plaintiff told the UNUM representative that she could only rake a small patch at a time, had to sit down to put leaves in the bag, and could only do this after taking a muscle relaxer and pain pill. Id. Even if plaintiff could complete household chores, however, she complains that the muscle spasms that impede her ability to breathe are initiated by stress and sitting for extended periods of time. Thus, whether plaintiff can complete light household chores is not determinative of whether she can perform her duties as a scheduler.
UNUM's reliance on Dr. Parikh's and Dr. Zakeri's comments about plaintiff's May, 1999, post-surgery MRI is also misplaced. Those reports only relate to the condition of plaintiff's back and neck. Plaintiff has repeatedly emphasized, however, that neck and back pain is not the only reason she claims a disability. As noted above, plaintiff claims that she suffers from myofascial pain, migraine headaches, and muscle spasms that do not allow her to sit for long periods of time. Plaintiff's February, 1999, surgery was not meant to correct all these problems.
Finally, UNUM places much emphasis on Dr, Fisher's October, 1999, release of plaintiff to work full-time. Plaintiff has explained, however, that she requested full-time work because UNUM had not paid her disability benefits since August 5, 1999 — a fact that UNUM obviously knew. Also, Dr. Fisher specifically states in his release that plaintiff continued to "have significant muscle spasms which occasionally impair[ed] her ability to breath." R. 00392. Nevertheless, even if Dr. Fisher may have thought that plaintiff was capable of performing the material and substantial duties of her regular occupation in October, 1999, his ultimate conclusion, only three months later, was that plaintiff is disabled and unable to work. This conclusion is, however, dismissed by UNUM as lacking in objective medical evidence.
UNUM's reliance on Dr. Fisher's release to work statement but neglect of his later prognosis of plaintiff reflects a selective review of the record that has been held to be arbitrary and capricious. See e.g. Govindarajan v. FMC Corp., 932 F.2d 634 (7th Cir. 1991). In Govindarajan, the plan administrator terminated the claimant's disability benefits based on an isolated medical report from the claimant's treating physician suggesting that the claimant was capable of returning to work. 932 F.2d at 637. Two months later, however, the same physician concluded that further evaluation was needed before a return-to-work date could be established. The plaintiff's claim file contained evidence from other medical professionals who agreed that the claimant could not work and cited physical causes to support their opinions. Id. The district court reasoned that the plan administrator's "selective review of the medical evidence and its completely erroneous assertion that there was no physical cause for the subjective symptoms of pain renders its decision not only unreasonable but arbitrary and capricious." Id. On review, the Seventh Circuit found the district court's determination "amply supported by the record." Id.
Other courts have also overturned adverse benefit decisions based on selective reading of medical records. See e.g., Holzschuh v. UNUM Life Ins. Co. of America, 2002 U.S. Dist. LEXIS 13205 at *24, 2002 WL 1609983 at *8 (E.D.Pa. July 18, 2002); Davies v. Paul Revere Life Ins. Co., 147 Supp.2d 347, 361 (M.D.Pa. 2001); Rosenthal v. Long-Term Disability Plan of Epstein, Becker Green, P.C., 1999 U.S. Dist. LEXIS 21443, 1999 WL 1567863 at *13 (C.D.Cal. Dec. 21, 1999).
In Mitchell v. Eastman Kodak Co., 113 F.3d 433 (3d Cir. 1997), the insured claimed he was unable to work because of Chronic Fatigue Syndrome, presenting the insurer, Eastman Kodak ("Kodak"), with statements from his physicians indicating that the insured suffered severe Chronic Fatigue Syndrome symptoms that precluded him from engaging in any substantial work. Kodak denied long-term disability because a lack of "objective medical evidence." The Third Circuit, noting that Kodak identified no "objective" medical evidence the insured could have submitted, in addition to his doctors' observations, to support his claim of Chronic Fatigue Syndrome, found Kodak's decision arbitrary and capricious. The court concluded:
It is now widely recognized in the medical and legal communities that "there is no `dipstick' laboratory test for chronic fatigue syndrome." Because the disease, although universally recognized as a severe disability, has no known etiology, it would defeat the legitimate expectations of participants in the Kodak Plan to require those with [Chronic Fatigue Syndrom] to make a showing of clinical evidence of such etiology as a conditions of eligibility for [long-term disability] benefits. Thus, it was arbitrary for the Administrator to deny [plaintiff] benefits because of a lack of such clinical evidence of the etiology of his CFS.
Cf. Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376 (6th Cir. 1996). In Yeager, the Sixth Circuit held that it was not arbitrary or capricious for an insurance company to require medical evidence of a physical condition or anatomic abnormality when no doctor could definitely diagnose plaintiff as having fibromyalgia even though no doctor doubted the veracity of the plaintiff's subjective complaints of fatigue and joint pain. Id. at 381-82.
In this case, because UNUM cited a lack of "objective medical evidence," it is likely UNUM meant that plaintiff failed to submit clinical evidence establishing the existence of migraine headaches, myofascial pain, and muscle spasms. The problem with UNUM's apparent requirement of "objective medical evidence" is that UNUM has identified no more "objective" evidence that plaintiff could have submitted, in addition to her doctor's observations, to support her claim of disability.
Furthermore, to require plaintiff to prove that she is disabled by "objective medical evidence" would add a requirement to the definition of "disabled" under her insurance policy. To be disabled under plaintiff's policy, she must be "limited from performing the material and substantial duties of [her] regular occupation due to [her] sickness or injury." R. 00742. The policy does not condition benefits on clinical evidence of the existence of the condition that renders a claimant disabled. To construe plaintiff's policy to impose a requirement of "objective medical evidence" would rewrite the policy. As courts have acknowledged, "an administrator lacks discretion to rewrite the Plan. Saffle v. Sierra Pacific Power Co., 85 F.3d 455, 460 (9th Cir. 1996); see also Mitchell, 113 F.3d at 443 (concluding it was arbitrary and capricious for an administrator to require "objective medical evidence" to prove disability when policy contained no such requirement); Florence Nightingale Nursing Serv. v. Blue Cross/Blue Shield, 41 F.3d 1476, 1484 (11th Cir. 1995).
The policy also provides:
Your proof of claim, provided at your expense, must show:
— that you are under the regular care of a doctor;
— the appropriate documentation of your monthly earnings;
— the date your disability began;
— the cause of your disability;
— the extent of your disability, including restrictions and limitations preventing you from performing your regular occupation; and
— the name and address of any hospital or institution where you received treatment, including all attending doctors.
We may request that you send proof of continuing disability indicating that you are under the regular care of a doctor. This proof, provided at your expense, must be received within 30 days of a request by us.
R. 00727.
Plaintiff's policy actually limits the pay period to twelve months for disabilities due to sickness or injury which are primarily based on "self-reported symptoms." The policy defines "self-reported symptoms" as
the manifestations of your condition which you tell your doctor, that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.
R. 00732.
Thus, there can be no "objective medical evidence" requirement to qualify as "disabled" if an insured can be "disabled" because of "self-reported symptoms."
After a thorough review of the entire administrative record, I am firmly convinced that UNUM's denial of plaintiff's claim for long-term disability benefits was arbitrary and capricious because it is not based on a reasonable interpretation of the plan or the evidence in plaintiff's claim file. Plaintiff, her treating physicians, and her psychologist have all opined that plaintiff is unable to meet the demands of her occupation. The only evidence UNUM relies on to rebut this determination is the borderline-invalid FCE, incomplete statements by the plaintiff, incomplete statements by Dr. Fisher, a review of plaintiff's file by UNUM's medical consultant, inapplicable reports by Dr. Zakeri and Dr. Parikh, and the fact that plaintiff attempted to work part-time and full-time.
In its May, 2000, denial letter, UNUM points to the fact that its medical consultant, Dr. Corzatt, examined plaintiff's file and concluded there was no objective evidence of a medical condition preventing plaintiff from working in a sedentary occupation. None of UNUM's physicians or nurses, however, examined plaintiff. The opinion of the treating physician does not necessarily trump that of a physician reviewing a cold record, and it is not in itself a basis for finding that defendant's conclusions about plaintiff's medical condition were arbitrary and capricious. Cunningham v. Paul Revere Life Ins. Co., 235 F. Supp.2d 746, 752 n. 5 (W.D.Mich. 2002); Kocsis v. Standard Ins. Co., 142 F. Supp.2d 241, 254-55 (D.Conn. 2001). Nonetheless, it should be a factor when the insurance company doctor's review is inconsistent with and given more emphasis than the treating physician. See Hoover v. Provident Life Accident Ins. Co., 290 F.3d 801, 809 (6th Cir. 2002) (finding that under a de novo standard of review, the evidence in the administrative record did not support the denial of long-term disability benefits when the insurance company's physicians, who had not examined the plaintiff, disagreed with her treating physicians).
UNUM's decision could have been rational in light of the plan's provisions, and, therefore, not arbitrary and capricious, if UNUM had presented reliable evidence to rebut plaintiff's treating physician's conclusions that plaintiff was disabled and unable to work as a scheduler/registrar. UNUM, however, has not done so.
In accordance with the foregoing, I find that UNUM's decision to deny plaintiff's claim for long-term disability benefits was arbitrary and capricious. Plaintiff is therefore granted judgment on the administrative record.
CONCLUSION
It is, therefore,
Ordered that
1. Plaintiff's motion for judgment on the administrative record be, and hereby is, granted, and defendant's motion for judgment on the administrative record be, and hereby is, denied.
2. Plaintiff seeks past due benefits and future participation in the policy. Plaintiff shall submit an itemized statement and proposed judgment entry by April 8, 2003. UNUM's opposition shall be filed by April 22, 2003. Plaintiff's reply is due April 29, 2003.
3. Plaintiff seeks attorney fees and costs. Counsel shall submit an itemized statement and proposed judgment entry by April 8, 2003. UNUM's opposition shall be filed by April 22, 2003. Plaintiff counsel's reply is due April 29, 2003.