Opinion
No. 3:21-cv-01260-HZ
2022-12-28
VERONICA L., Plaintiff, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant.
Christopher E. Roy, R. Darrin Class, Roy Law Group, 1000 SW Broadway, Suite 900, Portland, OR 97205, Attorneys for Plaintiff. Shannon Wodnik, Gordon & Rees, 701 5th Avenue, Suite 2100, Seattle, WA 98104, Attorney for Defendant.
Christopher E. Roy, R. Darrin Class, Roy Law Group, 1000 SW Broadway, Suite 900, Portland, OR 97205, Attorneys for Plaintiff. Shannon Wodnik, Gordon & Rees, 701 5th Avenue, Suite 2100, Seattle, WA 98104, Attorney for Defendant. OPINION & ORDER HERNÁNDEZ, District Judge:
Plaintiff Veronica L. brings this action, under the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA"), challenging a decision by Defendant Metropolitan Life Insurance Company ("MetLife") to deny continued benefits under a long-term disability ("LTD") policy ("Plan"). Plaintiff seeks recovery of all unpaid LTD benefits through the date of judgment, reinstatement of her LTD benefits under the plan until she reaches the age of 67, prejudgment and post-judgment interest, and costs plus reasonable attorney fees, per 29 U.S.C. § 1132(e)(1), (f), and (g). Both parties move for judgment on the administrative record under Federal Rule of Civil Procedure 52. For the reasons stated below, the Court denies both motions and remands to Defendant to develop the record to better determine whether Plaintiff's disability is due to a non-limited condition.
In the interest of privacy, this Opinion uses only Plaintiff's first name and first initial of the last name.
BACKGROUND
I. Procedural Background
Plaintiff was previously employed by Google LLC as a Senior UX Writer. Google offered an LTD Plan to its employees, including Plaintiff, pursuant to ERISA, 29 U.S.C. § 1002(1). Google, as sponsor and administrator, delegated discretion to make disability determinations under the LTD Plan to the claims administrator, Defendant MetLife. For employees who receive LTD benefits, the Plan provides in relevant part:
Your Disability benefit payments will end on the earliest of:
• the end of the Maximum Benefit Period;
• the date benefits end as specified in the section entitled LIMITED DISABILITY BENEFITS;
. . .AR 37. The Limited Disability Benefits section specifies:
If you are Disabled due to a Mental or Nervous Disorder or Disease, We will limit Your Disability benefits to a lifetime maximum equal to the lesser of:AR 39. The Plan defines disability:
• 36 months; or
• the Maximum Benefit Period.
The limitation will not apply to a Disability resulting from:
• schizophrenia;
• dementia; or
• organic brain disease.
Mental or Nervous Disorder or Disease means a medical condition which meets the diagnostic criteria set forth in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders as of the date of Your Disability. A condition may be classified as a Mental or Nervous Disorder or Disease regardless of its cause.
Disability or Disabled means that as a result of Sickness or injury You are either Totally Disabled or Partially Disabled.AR 00026.
Totally Disabled or Total Disability means:
During the Elimination Period and the next 24 months, You are unable to perform with reasonable continuity the Substantial and Material Acts necessary to pursue Your Usual Occupation in the usual and customary way.
After such period, You are not able to engage with reasonable continuity in any occupation in which You could reasonably be expected to perform satisfactorily in light of Your:
• age;
• education;
• training;
• experience;
• station in life; and
• physical and mental capacity
Partially Disabled or Partial Disability means while actually working in an occupation, You are unable to earn 80% or more of Your Predisability Earnings.
Plaintiff worked at Google until her date of disability—July 27, 2017. AR 58. Defendant approved Plaintiff's LTD benefits claim for major depressive disorder, general anxiety disorder, and PTSD, subject to the 36-month limitation for mental/nervous conditions. AR 77. Defendant began paying Plaintiff LTD benefits on January 23, 2018, after the Plan's 180-day "elimination period" had expired. AR 77.
In early 2018, Plaintiff was involved in a motor vehicle accident in which she sustained a concussion. Def. Mot. 12, ECF 19. Defendant paid two weeks of temporary disability benefits at that time, which paused exhaustion of her mental/nervous condition limit, so that the 36-month limitation end date was extended to February 5, 2021. AR 2228.
On January 8, 2021, Defendant sent a letter to Plaintiff, notifying her that her benefits were set to expire per the LTD's mental/nervous disorder 36-month limitation. AR 2228. The letter stated that Defendant had "reviewed the medical information provided and determined that the medical information received does not support physical functional limitations precluding work from your benefit start date of January 23, 2018 forward." AR 2229 (emphasis added). Defendant discontinued Plaintiff's LTD benefits on February 5, 2021. Plaintiff appealed Defendant's decision on May 21, 2021. AR 1467. Defendant sent Plaintiff a letter dated August 18, 2021, notifying her that her appeal was denied. AR 1380-84. Plaintiff filed this action on August 24, 2021.
II. Defendant MetLife's Review of Plaintiff's Medical Data
Plaintiff claims that, apart from her mental health conditions, she is disabled and unable to work due to a physical impairment—chronic fatigue syndrome ("CFS"). Defendant reviewed Plaintiff's medical information during the disability period and at the end of the disability period before discontinuing her LTD benefits.
A. MetLife's Review During the Disability Benefits Period
Defendant reviewed Plaintiff's medical data throughout the disability benefits period and determined that her records showed ongoing support for disability due to her psychiatric impairments. In November 2018, Plaintiff's therapist, Dr. Ginny Estupinian, Ph.D., submitted a behavioral health assessment to Defendant, in which she listed Plaintiff's diagnoses as PTSD, major depressive disorder, and generalized anxiety disorder. AR 3787-3791. At that time, she noted that Plaintiff had "made progress" but continued to experience unstable mood. AR 3788. On a "Supplemental Functional Assessment Form," Dr. Estupinian listed "chronic fatigue, thyroid dysfunction" under "other medical conditions," but she did not mention any symptoms of fatigue. AR 3789-90. On April 17, 2019, Dr. Estupinian completed another "Supplemental Functional Assessment Form," again listing "chronic fatigue" under "other medical conditions." AR 3641.
In May 2019, Defendant conducted a review to determine whether Plaintiff was disabled from CFS, a physical condition that would not fall under the 36-month limitation for benefits. First, a MetLife claims specialist called and spoke with Plaintiff about the reported "other medical condition" of chronic fatigue. AR 716-18. Defendant's Nurse Consultant Stacey Barnard then reviewed Plaintiff's medical information to determine whether it supported disability caused by CFS. Barnard spoke with Plaintiff and her naturopathic provider, Dr. Meghan Kemnec. AR 749-50. Barnard also reviewed records from Plaintiff's rheumatologist, Dr. Claudia Kuzis. Dr. Kuzis noted that Plaintiff had chronic fatigue for the previous nine years, and her impression was that Plaintiff has "chronic fatigue syndrome with no evidence of fibromyalgia." AR 781-82.
Defendant hired an independent physician consultant, Dr. Mahdy Flores, D.O. (board-certified in family medicine and occupational medicine), who reviewed Plaintiff's records and determined that the medical information did not support functional limitations caused by chronic fatigue. AR 3391-95. Specifically, Dr. Flores wrote: "based on the medical documentation, it is understood that the claimant's low energy are likely related to psychological condition." AR 3394. In June and August 2019, another independent physician consultant, Dr. Janet Bartov, M.D. (board-certified in rheumatology), reviewed Plaintiff's records and spoke with her treating providers Dr. Kemnec and Dr. Kuzis. AR 3264-66, 3355-61. Dr. Kemnec noted that Plaintiff's "energy level and depression had improved somewhat" but that her "fatigue was an active issue." AR 3264. Dr. Kuzis stated that Plaintiff has "chronic fatigue syndrome" but does not have a pain component. AR 3265. Like Dr. Flores, Dr. Bartov determined that Plaintiff had no restrictions or limitations because of chronic fatigue. AR 3264-66, 3355-61.
B. MetLife's Review at the End of the Disability Period
In July 2020, Nurse Consultant Barnard reviewed Plaintiff's medical file and found that no restrictions or limitations due to a non-limited condition were warranted. AR 1079-84. Barnard based her opinion on Plaintiff's ongoing psychiatric treatment along with normal physical exams and no other objective evidence of a physical abnormality in the record.
Another independent physician consultant, Dr. Angelica Shepard, M.D. (board-certified in internal medicine and rheumatology) reviewed Plaintiff's medical file on October 16, 2020. AR 2399-403. Dr. Shepard tried to contact two of Plaintiff's then treating providers, Dr. Lisa Paul, M.D. and Dr. Loch Chandler, N.D., but neither responded. AR 1240-42, 2376-79. Dr. Shepard determined that the evidence in Plaintiff's medical record did not support restrictions and limitations due to a physical condition. AR 2401-02. She found insufficient support for a diagnosis of CFS. AR 2402.
In July 2020, Plaintiff established care with a new primary care provider, Allison Foxx, PA-C. AR 2275-76. Ms. Foxx initially saw Plaintiff via telehealth on July 7, 2020. AR 2256-62. Based on Plaintiff's self-report, Ms. Foxx noted that Plaintiff had fatigue which had progressively worsened over the previous two to three years. AR 2257. Plaintiff described severe fatigue to the point that sitting up and talking exhausted her and stated that she was sometimes unable to feed herself because of fatigue. AR 2257. Other than being "tired-appearing," Ms. Foxx described no abnormalities on physical exam. AR 2258. She diagnosed Plaintiff with "Fatigue, unspecified type" and ordered several laboratory evaluations. AR 2258.
Defendant received medical records from Ms. Foxx on December 30, 2020. AR 2254-62. Nurse Consultant Barnard reviewed the records, and on January 7, 2021, she determined that the records failed to show that Plaintiff suffered from a non-limited condition that would prevent her from working. AR 1303-07. Ms. Foxx completed an Attending Physician Statement on January 8, 2021, but the Statement was not transmitted to MetLife until several weeks later. AR 1506. Nurse Consultant Barnard had not received the Ms. Foxx's Statement by the time she issued her opinion.
Plaintiff received a letter dated January 8, 2021, notifying her that her claim for benefits was denied beyond the 36-month limitation date of February 5, 2021. AR 2228. Plaintiff appealed Defendant's decision on May 21, 2021. AR 1467. For the appeal, she submitted a sworn declaration as well as letters from her treating providers Allison Foxx, PA-C, Ginny Estupinian, Ph.D., and psychiatrist Tammy Saah, M.D. In her declaration, Plaintiff stated:
I am diagnosed with Chronic Fatigue and have been experiencing symptoms since 2008, although my symptoms have become much worse in recent years . . . . The fatigue I experience is severe and unpredictable and has significantly affected my life and ability to do the daily activities of living. For years I have sought treatment from different doctors and have not been able to find a treatment to alleviate my symptoms or even determine the cause of my condition.AR 1502. Plaintiff also described typically sleeping about thirteen hours per night and taking naps in the afternoons. AR 1502. She described difficulty with self-care, including showering, changing clothes, doing laundry, and making food for herself. AR 1502-03. She stated that she has bad days around eight times per month when she sleeps eighteen hours and is "hardly able to do anything." AR 1503.
In her letter, PA-C Foxx stated that she believed Plaintiff could not consistently meet the demands of full-time employment and that Plaintiff's "inability to return to work is based on purely physical conditions and symptoms." AR 1506. Ms. Foxx noted that it would be unusual for the degree of Plaintiff's fatigue to be attributable to psychogenic causes. AR 1506. Dr. Estupinian noted in her letter that Plaintiff "experienced fatigue that appeared to be above and beyond a mood disorder." AR 1516. Dr. Saah stated that in her professional opinion as Plaintiff's treating psychiatrist from 2015 through 2019, "the severity of her physical fatigue symptoms cannot be reasonably attributed to any mental health disorders from which she suffered." AR 1517.
For the appeal, Defendant obtained an independent physician consultant review from Dr. Zaid Fadul, a physician board-certified in family medicine. Dr. Fadul submitted his review on June 23, 2021. AR 1435-1440. Dr. Fadul reviewed Plaintiff's clinical encounters in the record from January 2, 2020 through May 21, 2021, including clinic notes by PA-C Foxx, Dr. Chandler, N.D., and Dr. Lisa Paul, M.D. AR 1436-37. He did not examine or speak with Plaintiff. Dr. Fadul concluded:
In summary, the claimant presents with several conditions. However, her major concern is her chronic fatigue syndrome. She had several tests, but the etiology is still not identified. Most recent medical record reports improvement of energy with current medications. Additionally, the claimant has controlled levels of TSH and blood pressure. She was diagnosed with EBV by lab work-up, but no symptoms reflect such findings . . . . Given the lack of objective evidence that shows physical etiology and support severity, I opine that no restrictions and limitations are indicated for the time frame under review.AR 1438-39. Dr. Fadul addressed and disagreed with the opinions of Plaintiff's treating providers:
In a letter from Dr. Saah, the claimant is a former patient. She has been denied disability since her chronic fatigue syndrome is related to psychiatric causes. According to her, the claimant's severe fatigability cannot be attributed to her mental conditions. In another letter by Dr. Foxx, the claimant is unable to sustain the sitting requirement of more than 3 hours per day [or] the standing of more than 2 hours a day. Her fatigue is based on physical conditions since it is very abnormal for the left [sic] if chronic fatigue and hypersomnolence to be attributed to psychogenic factors. While the possibility of a physical etiology is being considered, the medical history of the claimant failed to provide supporting objective evidence that could explain the association of the chronic fatigue syndrome to any physical cause.AR 1439-40. Dr. Fadul then asked for comment from PA-C Foxx. In a response later dated July 12, 2021, PA-C Foxx stated that she did not agree with Dr. Fadul's stated reasoning "that no restrictions and limitations are indicated" because of a "lack of objective evidence that shows physical etiology and support severity." AR 1413. PA-C Foxx asserted that Plaintiff's chronic fatigue syndrome and hypersomnolence are difficult to assess through objective evidence such as imaging and laboratory evaluations and instead, require the treating provider to "rely on personal interaction with and assessment of the patient, which MetLife's consultant has never undertaken." AR 1413.
On August 2, 2021, after receiving the response from PA-C Foxx, Dr. Fadul addended his report to address her opinion. Dr. Fadul stated that he disagreed with her assessment and again stated that "[t]here is a lack of objective evidence that supports such claims and most of them are self-reported. Therefore, I still opine no restrictions or limitations for the timeframe under review." AR 1404. Defendant sent Plaintiff a letter dated August 18, 2021, notifying her that her appeal was denied. AR 1380.
STANDARDS
A denial of benefits by an ERISA plan administrator 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 Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). When the plan administrator or fiduciary retains discretionary authority to interpret the plan and determine benefits, an abuse of discretion standard applies. Id. De novo review of a denial of benefits under an ERISA plan is the default unless the plan unambiguously provides a less stringent standard of review. Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 673 (9th Cir. 2011). Here, the parties stipulate to de novo review. Pl. Mot. 2, ECF 20; Def. Mot. 19, ECF 19. The Court accepts the parties' stipulation and agrees that de novo review is the appropriate standard. See Rorabaugh v. Cont'l Cas. Co., 321 Fed. App'x 708, 709 (9th Cir. 2009) (courts may accept parties' stipulation to de novo review).
A court reviewing an ERISA action under Federal Rule of Civil Procedure 52(a) conducts what is essentially "a bench trial on the record" using the material considered by the plan administrator. Kearney v. Standard Ins. Co. 175 F.3d 1084, 1095 (9th Cir. 1999). The relevant inquiry under Rule 52(a) is "not whether there are genuine issues of material fact, but whether [the plaintiff] is disabled within the terms of the policy." Id. On de novo review, the court does not give deference to the plan administrator's decision but "simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits." Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006). In other words, the court "determines in the first instance if the claimant has adequately established that he or she is disabled under the plan." Muniz v. AMEC Constr. Mgmt., Inc., 623 F.3d 1290, 1295-96 (9th Cir. 2010). In doing so, the court makes factual findings, evaluates credibility, and weighs evidence. Rabbat v. Standard Ins. Co., 894 F. Supp. 2d 1311, 1314 (D. Or. 2012); see Kearney, 175 F.3d at 1095 ("[T]he judge can evaluate the persuasiveness of conflicting testimony and decide which is more likely true.").
The claimant has the burden of proving by a preponderance of the evidence that they are disabled under the plan. Muniz, 623 F.3d at 1294. Even on de novo review, the court can remand a disability claim to the plan administrator if the record is not sufficiently developed. See Mongeluzo v. Baxter Travenol Long Term Disability Ben. Plan, 46 F.3d 938, 944 (9th Cir. 1995) (finding that a district court has discretion to remand to the plan administrator when additional evidence is needed to conduct an adequate de novo review of the benefit decision).
DISCUSSION
On de novo review, the question for this Court is whether Plaintiff has proven by a preponderance of the evidence that she is disabled by a non-limited condition under the Plan and is therefore entitled to benefits beyond the 36-month limitation for mental/nervous conditions. Plaintiff contends that she is disabled by chronic fatigue syndrome, a non-limited condition, and is entitled to ongoing benefits based on her treating providers' statements, her credible self-reported symptoms, and the fluctuating nature of her symptoms. Defendant argues that its denial of ongoing benefits was proper because Plaintiff's reported limitations from a physical condition are not supported by the objective evidence. Defendant also argues that any limitations Plaintiff has from CFS are not severe enough to be disabling under the Plan.
After reviewing the record de novo, the Court finds that Defendant based its denial on incomplete information and erred by rejecting Plaintiff's claimed limitations from CFS without conducting an independent medical examination. Thus, the Court reverses Defendant's denial of benefits and remands for further administrative proceedings.
I. Chronic Fatigue Syndrome
As a preliminary matter, the Court discusses what evidence is required to find disability based on CFS. There are no objective laboratory tests for CFS and its etiology is unknown. Salomaa, 642 F.3d at 677. A diagnosis of CFS is made upon considering the patient's subjective reports of symptoms, reviewing the patient's medical history, and ruling out other disorders. Id. "Objective support for subjective complaints is not generally seen in CFS." Id.
The Center for Disease Control diagnostic criteria for CFS are:
1) [t]he patient' must have clinically evaluated, unexplained persistent or relapsing chronic fatigue that is of new or definite onset (i.e., not lifelong), is not the result of ongoing exertion, is not substantially alleviated by rest, and results in substantial reduction in previous levels of occupational, educational, social, or personal activities; and 2) [t]he patient must have concurrent occurrence of four or more of the following symptoms: substantial impairment in short-term memory or concentration; sore throat; tender lymph nodes; muscle pain; multi-joint pain without swelling or redness; headaches of a new type, pattern, or severity; unrefreshing sleep; and post-exertional malaise lasting more than 24 hours.Ayers v. Life Ins. Co. of N.A., 869 F. Supp. 2d 1248, 1253-54 (D. Or. 2012); see also Salomaa, 642 F.3d at 677. Thus, "disability claims based on . . . chronic fatigue syndrome may be premised on subjective evidence and the reports of treating physicians." Eisner v. The Prudential Ins. Co. of Am., 10 F. Supp.3d 1104, 1117 (N.D. Cal. 2014). And "a disability plan's reliance on normal diagnostic or clinic results in the face of credible evidence suggesting impairment due to . . . chronic fatigue syndrome is an abuse of discretion." Id. at 1114 (citing Salomaa, 642 F.3d at 676). In other words, evaluating disability caused by CFS is essentially a credibility determination.
II. Plaintiff's Evidence of Disability
Plaintiff bears the burden of proving she is disabled and entitled to benefits. Muniz, 623 F.3d at 1294. The Plan specifically provides that:
If You become Disabled while insured, Proof of Disability must be sent to Us. When We receive such Proof, We will review the claim. If We approve the claim, We will pay the Monthly Benefit up to the Maximum Benefit Period shown in the SCHEDULE OF BENEFITS, subject to the DATE BENEFIT PAYMENTS END section.
To verify that You continue to be Disabled without interruption after Our initial approval, We may periodically request that You send Us Proof that You continue to be Disabled. Such Proof may include physical exams, exams by independent medical examiners, in-home interviews
or functional capacity exams, as needed.AR 00034. The Plan defines Proof:
Proof means Written evidence satisfactory to Us that a person has satisfied the conditions and requirements for any benefit described in this certificate. When a claim is made for any benefit described in this certificate, Proof must establish:AR 00025.
• the nature and extent of the loss or condition;
• Our obligation to pay the claim; and
• the claimant's right to receive payment.
Plaintiff alleges that she is entitled to continuing benefits because, while her mental conditions were subject to the Plan's 36-month limitation, she is independently disabled by a non-limited condition—chronic fatigue syndrome. Defendant does not dispute that Plaintiff has CFS but contends that the medical evidence does not support that her CFS is disabling under the Plan.
Plaintiff provided medical records and statements from physicians throughout Defendant's review process and as part of her appeal. The record includes notes from three treating physicians that support her CFS diagnosis. Plaintiff's current primary care provider specifically described Plaintiff's limitations caused by CFS and concluded that Plaintiff is unable to work because of that condition. Two of Plaintiff's treating mental health providers, while providing an opinion on the cause of her fatigue, stated that Plaintiff's degree of fatigue cannot be explained by her mental health conditions. As explained further below, the treating provider statements are credible evidence supporting Plaintiff's disability caused by CFS that Defendant must adequately rebut.
Plaintiff also provided a narrative describing the debilitating fatigue that has affected her since 2008. AR 1502-1505. She describes having "severe and unpredictable" fatigue, which includes flu-like symptoms of chills and sweating. AR 1502. She can usually only handle one major task per day and there is "hardly ever a day [she is] not fatigued." AR 1502. Plaintiff claims she does not have the energy to conduct daily chores including cleaning her house, washing dishes, doing laundry, and taking her dog out to use the bathroom. AR 1502. She used to enjoy cooking meals from scratch, but now relies on frozen meals and packaged foods to be able to eat enough food because she does not have the energy to cook. AR 1502. She experiences brain fog and has a hard time with "short-term memory . . . trouble concentrating and staying focused." AR 1503. She describes feeling "senile" at times. AR 1503. About eight times a month, Plaintiff has a "bad day" when she will sleep for around eighteen hours and spend the remaining hours awake in bed. AR 1503. On "good days," she can gather energy to do things such as walk her dog, text friends, and shower. AR 1503. She explains that good days usually come after she has slept for twelve hours the previous night and that she still requires rest after a shower or other activity on those days. AR 1503. If she overexerts herself, she is in "really bad shape for a couple days afterwards." AR 1503. Plaintiff says that good days happen about three times a month and the rest of the days in a month fall somewhere in between the good and bad days. AR 1503.
Plaintiff's symptoms impacted her ability to work at Google, a job which she had held for twelve years. AR 1504. She began to work remotely part time because she could not handle "normal working hours" and would only go into the office a few hours a day for a few days a week. AR 1504. On the days she went to the office, she would become exhausted walking from her car to the building or to and from coworkers' desks for meetings. AR 1504. Plaintiff describes being unable to concentrate to the point that she could no longer handle the workload or participate in the collaborative parts of her job. AR 1504. She began to miss meetings, and coworkers would not send her work because she was "no longer reliable." AR 1504. Plaintiff says she "used to be able to push myself through at will and got to a point that I couldn't push through anymore. I didn't have the capability anymore." AR 1505.
Before her chronic fatigue, Plaintiff asserts that she "lived an entirely different life," but that now even basic life functions are difficult for her. AR 1505. Plaintiff states that she sought treatment for years and has not found treatment that helps alleviate her symptoms. AR 1502. Three treating physicians who have seen Plaintiff do not question her credibility regarding the extent of her fatigue.
III. Defendant's Review and Determination of Non-disability
A. Paper-Only Review
While Plaintiff carries the burden of proving she is entitled to benefits, Defendant has a duty to conduct an adequate investigation of her claim before it denies benefits. Petrusich v. Unum Life Ins. Co. of Am., 984 F. Supp. 2d 1112, 1119 (D. Or. 2013). If a plan administrator believes more information is needed to make a benefits decision, they must ask for it. Id. ERISA does not require insurers to conduct independent medical examinations ("IME"). Id. at 1122. But failure to conduct an IME may raise questions about the thoroughness of the review and benefits determination. Robertson v. Stand. Ins. Co., 139 F. Supp. 3d 1190 (D. Or. 2015), order clarified, No. 3:14-CV-01572-HZ, 2015 WL 13682034 (D. Or. Nov. 13, 2015). When evaluating the quantity and quality of medical evidence, courts often consider "whether the plan administrator subjected the claimant to an in-person medical evaluation or relied instead on a paper review of the claimant's existing medical records." Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 630 (9th Cir. 2009). One reason is because an insurance company may choose not to conduct an IME to avoid "the risk that the physicians it employs may conclude that the claimant is entitled to benefits." Salomaa, 642 F.3d at 676.
Failure to conduct an IME may be particularly dubious when the claimant's condition is based on subjective symptoms. Robertson, 139 F. Supp. 3d at 1205. In Robertson, the court found that because the condition relied on subjective complaints of pain, the plan administrator had a duty to request an IME to help determine credibility. Id. "Moreover, where the diagnosis, such as CFS in this case, is based on subjective symptoms, it 'can be evaluated more fully through an actual examination than by a mere review of a patient's medical record.' " Laurie v. United of Omaha Life Ins. Co., No. 3:14-CV-01937-YY, 2017 WL 975947, at *15 (D. Or. Jan. 23, 2017), report and recommendation adopted, No. 3:14-CV-01937-YY, 2017 WL 970262 (D. Or. Mar. 13, 2017) (quoting Heinrich v. Prudential Ins. Co. of Am., No. 04-cv-02943-JF, 2005 WL 1868179, at *8 (N.D. Cal. July 29, 2005)). In Laurie, the court explained that, because of the subjective nature of CFS, the insurer should have hired a rheumatologist to perform an IME to verify the claimant's self-reported symptoms. Laurie, 2017 WL 975947, at *15.
The record here consists of several pages of reports from several medical providers who have examined and treated Plaintiff. Defendant concluded, based solely on its independent physicians' reviews of these records, that Plaintiff had no restrictions due to a non-limited condition that would prevent her from working. Although ERISA does not require that Defendant conduct an IME, the Court finds that its failure to do so precludes its ability to make an adequate credibility determination. Based on her uncontested diagnosis of CFS, her own statement about the degree of her subjective symptoms, and the corroborating statements of her treating physicians, Plaintiff has presented evidence of her disability. Because disability from CFS cannot be measured by objective tests, to rebut Plaintiff's evidence, Defendant must make an adverse credibility determination.
The Court finds that Defendant erred by making such a determination without any of its medical consultants seeing Plaintiff in person. See Laurie, 2017 WL 975947, at *15 ("Where there is sufficient evidence in the record to support a claimant's contentions, including opinions of her treating physicians, the insurance company has a fiduciary duty to engage in a meaningful dialogue with her and to request an IME[.]"). An IME could have provided the evidence Defendant needed to determine whether Plaintiff is disabled from a physical condition, especially when Defendant expressed doubt as to Plaintiff's credibility and the extent of her subjective symptoms. Without such an examination, the Court finds that Defendant based its decision to deny ongoing benefits on inadequate evidence.
B. Discrediting Treating Physicians
Plaintiff contends that Defendant erred by discounting opinions from her treating physicians. There is no "treating physician rule" in ERISA cases and courts do not have to give treating physicians special deference. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). But "a district court may, in conducting its independent evaluation of the evidence in the administrative record on de novo review, take cognizance of the fact . . . that a given treating physician has a greater opportunity to know and observe the patient than a physician retained by the plan administrator." Jebian v. Hewlett-Packard Co. Emp. Benefits Org. Income Protection Plan, 349 F.3d 1098, 1109 (9th Cir. 2003) (internal brackets omitted). Courts "routinely weigh" opinions from treating physicians "more heavily than they do reports and file reviews from paid consultants who never examine the claimant or talk to the claimant's treating physicians." Laurie, 2017 WL 975947, at *15 (quoting Eisner v. The Prudential Ins. Co. of Am., 10 F. Supp. 3d 1104, 1115 (N.D. Cal. 2014)). That said, when a treating physician only treated the claimant for a short time or has less expertise in the claimant's condition than the reviewing physician, the treating physician's opinion may carry less weight. Jebian, 349 F.3d at 1109.
While there is no special discretion owed by the court, plan administrators may not arbitrarily refuse to credit reliable evidence, including statements from treating physicians. Nord, 538 U.S. at 834, 123 S.Ct. 1965. Because CFS requires "careful examination of a patient's symptoms and medical history," a patient's treating physician is likely in a better position to make a diagnosis compared to a consultant hired to review their medical files. DeVries v. Aetna Life Ins. Co., No. SACV1901499DOCDFM, 2020 WL 3265108, at *10 (C.D. Cal. June 16, 2020), appeal dismissed, No. 20-55906, 2021 WL 799703 (9th Cir. Jan. 25, 2021). In DeVries, the court found that the plaintiff's physicians, who had "interacted with and examined her over the course of numerous appointments," were "more reliable witnesses" than the defendant's reviewing physicians. Id.
Here, Plaintiff provided statements from her treating physicians that support her disability caused by CFS. Ms. Foxx specifically noted disability caused by Plaintiff's fatigue and expressly disagreed with Defendant's reviewing consultant, Dr. Fadul. Defendant gave no explanation for discounting the treating physicians' assessment of Plaintiff's limitations in favor of reviewing physicians who did not examine Plaintiff in person.
Plaintiff saw two doctors, Dr. Kuzis and Dr. Kogelnik, who have expertise in CFS. Each confirmed Plaintiff's diagnosis of CFS. Although neither specialist was able to offer treatment to relieve her CFS symptoms, neither denied that Plaintiff experienced debilitating chronic fatigue.
Plaintiff's primary care provider explained that her mental health conditions do not explain the degree of fatigue she experiences. She stated that it would be "very abnormal" for Plaintiff's fatigue to be "attributable to psychogenic fatigue." AR 1506. She concluded that Plaintiff "remains unable to reasonably sustain full-time work in any occupational capacity due to purely physical symptoms from chronic fatigue syndrome" and would experience ongoing functional limitations. AR 1413.
Two of Plaintiff's mental health providers explained that Plaintiff's fatigue is beyond what is normal for mental conditions. Dr. Saah, a psychiatrist who treated Plaintiff for four years, specifically stated that "the severity of her physical fatigue symptoms cannot be reasonably attributed to any mental health disorders from which she suffered." AR 1517. Similarly, her therapist Dr. Estupinian stated that Plaintiff "experienced fatigue that appeared to be above and beyond a mood disorder." AR 1516. None of these providers expressed any doubt about her credibility, and each contend that her disabling fatigue is attributable to a physical condition.
Because Plaintiff's claimed disability is due to a condition that relies on subjective symptoms to be diagnosed, Defendant must provide some rationale for discrediting her treating physicians' opinions through only a paper review. See Hamid v. Metro Life Ins. Co., 517 F. Supp. 3d 903, 917 (N.D. Cal. 2021) ("In ERISA cases, the opinions of treating physicians are not entitled to special deference, but as compared to physicians who conduct only paper reviews, treating physicians are far better positioned to assess a claimant's credibility."). Defendant does not do so.
C. Requiring Objective Evidence
Plaintiff also contends that Defendant erroneously required objective evidence to prove she is disabled by CFS. Conditioning benefits on objective evidence when the claimant has a condition that does not have objective findings is arbitrary and capricious. Salomaa, 642 F.3d at 678. When an ERISA plan does not specifically require objective evidence, it is unreasonable to reject a physician's notes of self-reported symptoms or other subjective evidence. Shaw v. Life Ins. Co. of N.A., 144 F. Supp. 3d 1114 (C.D. Cal. 2015); see DeVries, 2020 WL 3265108, at *8 ("[T]he Ninth Circuit has held that a lack of objective physical findings does not necessarily justify a denial of benefits"). Treating physician's observations can be objective evidence, "particularly in the context of a disorder that is inherently subjective and self-reported." Gallupe v. Sedgwick Claims Mgt. Services Inc., 358 F. Supp. 3d 1183, 1193 (W.D. Wash. 2019). The administrator can only condition benefits upon "evidence that the CFS symptoms have the effect of preventing the claimant from working." Laurie, 2017 WL 975947, at *17.
Defendant erred when it required objective evidence to prove Plaintiff's disability. While Defendant claims it considered both objective and subjective findings before denying Plaintiff's claim, Dr. Fadul only mentioned "lack of objective evidence" in his review on appeal. AR 1403 ("Given the lack of objective evidence that shows physical etiology and support severity, I opine that no restrictions and limitations are indicated for the time frame under review."). Such a conclusory statement does not justify denying Plaintiff's claim. As there are no objective tests for a CFS diagnosis, it follows that there would be no objective tests to show functional limitations from CFS. Defendant was asking Plaintiff for evidence that simply does not exist. Fatigue, like pain, is an inherently subjective condition.
Nor does the Plan mention objective evidence, clinical evidence, or any specific type of evidence as a sole requirement when filing a claim. In its denial letter and on appeal, Defendant did not tell Plaintiff what specific tests were needed to establish that she is disabled by CFS, ostensibly because no objective tests exist. See Salomaa, 642 F.3d at 680 ("[W]here the denials were based on absence of some sort of medical evidence or explanation, [ ] the administrator was obligated to say in plain language what additional evidence it needed and what questions it needed answered in time so that the additional material could be provided."). In fact, when Plaintiff asked about what tests were needed to review her claim, Defendant replied that there were "no specific test results needed from [her]." AR 3380. No objective clinical findings could prove or disprove that Plaintiff is disabled from CFS. Thus, Defendant erred when it denied Plaintiff's claim because of a lack of objective evidence.
D. Discrediting Self-reported Symptoms
Plaintiff claims that in denying her benefits, Defendant wrongly discredited her self-reported symptoms. In cases involving conditions like CFS, for which no objective tests exist, the plan administrator must consider self-reported symptoms in determining disability. Laurie, 2017 WL 975947, at *17. Many conditions depend on subjective symptoms for diagnosis and cannot be objectively established. Salomaa, 642 F.3d at 678. The lack of objective evidence in CFS cases creates a risk of false claims, but when a policy does not exclude conditions based on subjective symptoms the insurer has assumed that risk. Id. As explained in III.C., supra, an insurer cannot condition benefits on objective proof where a condition is recognized but not objectively provable. Id.
Plaintiff has consistently claimed severe fatigue as a symptom and her providers' reports consistently list "chronic fatigue" as a medical condition, separate from her mental health conditions. Her reported fatigue is so severe that she cannot get out of bed, feed herself, walk her dog, or perform other basic life functions. Her treating provider has stated that Plaintiff is credible and is an "accurate historian" of her symptoms. AR 1413. None of Plaintiff's treating providers questioned Plaintiff's credibility or noted that she exaggerates her symptoms.
In its denial letters, Defendant failed to explain why it discounted Plaintiff's subjective, self-reported symptoms. Rather than explain why it believes Plaintiff is not credible, Defendant made conclusory statements that her symptoms were "self-reported" and not supported by the objective evidence. Defendant erred by discounting Plaintiff's self-reported symptoms without explanation, particularly because her claim for disability is based on CFS, a diagnosis that relies on the claimant's self-report of subjective symptoms.
IV. Remand vs. Reinstatement of Benefits
"Remand to the plan administrator is appropriate where that administrator has 'construe[d] a plan provision erroneously' and therefore has 'not yet had the opportunity of applying the [p]lan, properly construed, to [a claimant's] application for benefits.' " Canseco v. Constr. Laborers Pension Tr., 93 F.3d 600, 609 (9th Cir. 1996) (quoting Saffle v. Sierra Pac. Power Co. Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 461 (9th Cir. 1996)). The court has discretion to remand to the plan administrator to develop the record. See Bunger v. Unum Life Ins. Co. of Am., 196 F. Supp. 3d 1175, 1188-89 (W.D. Wash. 2016) (citing Muniz, 623 F.3d at 1297) (upholding district court's decision to develop the record by ordering claimant to undergo a functional capacity evaluation); see also Mongeluzo, 46 F.3d at 944 (leaving it to the district court to decide whether to remand to develop the record so that it could conduct an adequate de novo review).
Based on the record, the Court cannot definitively determine whether Plaintiff is disabled due to a non-limited condition under the Plan. The Court concludes that Defendant did not conduct an adequate review and remands to the plan administrator to further develop the record.
CONCLUSION
The Court DENIES both parties' motions and REMANDS the case to the plan administrator to develop the record and determine whether Plaintiff is disabled due to a non-limited condition.
IT IS SO ORDERED.