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Selby v. Barnhart , 2002 U.S. App. LEXIS 16116 (7th Cir. 2002)  7th Circuit finds that Social Security failed to properly credit treating doctor's opinion, improperly rejected claimant's complaints of disabling symptoms, and mischaracterized past job requirements in Fred Daley's latest victory on behalf of DDB.

posted Monday, August 12, 2002 | 7:11 AM

The current issue of Mark DeBofsky's Disability E-News Alert contains discussion of the following cases:  

• Brennan v. Paul Revere Life Insurance Company, 2002 U.S.Dist.LEXIS 10505 (N.D.Ill. 6/10/02)?update-MISTRIAL! (Issues: bad faith)
• Browning v. A.T. Massey Coal Company Employees? Comprehensive Benefit Plan, 2002 U.S.Dist.LEXIS 12013 (S.D.W.Va. 6/26/02)(Issues: Full and fair review; fiduciary duty)
• DiGiovanni v. Guardian Life Insurance Company of America, 2002 U.S.Dist.LEXIS 12380 (D.Mass. 6/28/02)(Issues: Standard of review; Social Security offset; COBRA)
• Johnson v. PNC Bank Corp., 2002 U.S.Dist.LEXIS 11253 (E.D.Pa. 6/18/2002)(See Nance casenote - same issues)
• Kolton v. County of Anoka, 2002 Minn.LEXIS 387 (Minn.S.Ct. 6/13/2002)(Issues: different coverage for mental disabilities/discrimination)
• Marziale v. Hartford Life & Accident Insurance Company, 2002 U.S.Dist.LEXIS 11321 (E.D.La. 6/20/2002)(Issues: surveillance and investigation; prejudgment interest)
• Nance v. Sun Life Assurance Co. of Canada, 2002 U.S.App.LEXIS 13203 (10th Cir. 7/2/2002)(Issues: standard of review; later submitted evidence)
• Nord v. The Black & Decker Disability Plan, 2002 U.S.App.LEXIS 14159 (9th Cir. 2002)(Issues: standard of review; conflict of interest; treating physician) [included below]
• Palmore v. First UNUM, 2002 Ala.LEXIS 208 (Supreme Court of Alabama 6/28/2002)(Issues: bad faith; ERISA preemption)
• Sheehan v. Metropolitan Life Insurance Company., 2002 U.S.Dist.LEXIS 11789 (S.D.N.Y. 6/28/2002)(Issues: Discovery in ERISA cases)
• Soll v. Provident Life & Accident Insurance Company, 2002 U.S.Dist.LEXIS 11989 (E.D.La. 6/26/02)(Issues: Own occupation; substantial, material or important duties)

Following is the discussion of Nord v. Black & Decker:
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Nord v. The Black & Decker Disability Plan , 2002 U.S.App.LEXIS 14159 (9th Cir. 7/15/2002).
This case marks the second significant Ninth Circuit win this year for Lawrence Rohlfing who also won the celebrated Regula case that incorporated the treating physician rule from Social Security claims into ERISA. Nord applied for disability benefits after suffering from degenerative disc disease diagnosed by MRI. The Black & Decker plan's insurance carrier, MetLife, refused to pay benefits under an own occupation standard. After exhausting administrative appeals, he brought suit. In dealing with the standard of review issue, the court sided with plaintiff that MetLife was acting under a conflict which could overcome the clear-cut discretionary language contained in the insurance plan and diminish the deference accorded the plan. The court reached its conclusion after finding MetLife rejected critical evidence including the treating physicians' opinions, which, after Regula, is evidence supporting a conflict of interest. Stripping the issues to their core, the court found that the dispute was between the opinions of long-time treating doctors and an 'independent (but one time) clinical examiner.' Under such circumstances, under the treating physician rule, the plan administrator can reject the conclusions of the treating physicians only if the administrator "gives 'specific, legitimate reasons for doing so that are based on substantial evidence in the record.' " Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (quoting Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995))?.

Because there was no showing the treating physicians' opinions were unreliable and the 'independent' doctor's opinions more reliable, the treating physician rule was not overcome. The court found MetLife merely preferred the conclusions of its examiner; however, 'Given its dual role as funding source and administrator for the Plan, we conclude Black & Decker breached its fiduciary duty to Nord as a beneficiary of the Plan due to a conflict of interest.'

The court next ruled that the record in the district court was sufficiently complete so that a remand would not be necessary. MetLife had ample opportunity to prove its decision was not tainted by a conflict, yet it failed to do so. Hence, the only question is whether Nord proved his disability. On that issue, the court found the insurance company examiner's opinion 'could not reasonably overcome all the other evidence demonstrating that Nord is disabled. Dr. Mitri's opinion is overwhelmed by substantial evidence in the record, including the opinions of three treating physicians...' Upon reaching that conclusion, the court then granted the plaintiff?s motion for summary judgment.

Discussion: This is an amazing decision! Without proving the examiner?s opinion was fraudulent, the court simply dismissed Dr. Mitri's conclusions merely because they were contrary to the opinions of three treating doctors. Although such a conclusion may be appropriate in weighing the evidence under Rule 52 as advocated by the Ninth Circuit in Kearney v. Standard Insurance Company, 175 F.3d 1084 (9th Cir. 1999), such a conclusion seems inappropriate under Rule 56 which allows summary judgment to be granted only if there is no genuine issue of material fact. Nord appears to substantially lower the bar for plaintiff's attorneys and to markedly raise the bar for insurers. Although the term 'independent medical evaluation' is often a misnomer since, as the Ninth Circuit pointed out in Regula, there may be a longstanding relationship between the examiner and the insurer that biases the opinion, such a relationship was not shown in Nord. What appears to have happened is that the court was simply disgusted by the denial of benefits in the face of an objective MRI conclusively proving the source of the plaintiff's impairments along with three unequivocal treating doctor opinions. Perhaps the lesson here is that the Ninth Circuit has concluded the ERISA shield has been overused by insurers and that abject deference to an insurer's finding is completely inappropriate.

posted by M W | 10:38 AM

Mark DeBofsky's upcoming speaking engagements:

• Teaching Employee Benefits Litigation at John Marshall Law School commencing on August 21. For further information, contact the Center for Tax Law and Employee Benefits 312.427.2737.
• Speaking on the subject of ERISA Claims Regulations at ERISA Seminar sponsored by LexisNexis, Boston, MA, October 28, 2002. For further information, contact 610-768-7800.
• Speaking on Subrogation and Long Term Disability Claims at the ERISA Litigation Conference sponsored by the American Bar Association, November 14-16, 2002. For further information, contact Karen Case (202) 662-8641

posted by M W | 10:29 AM

Criner v. Barnhart , 208 F. Supp. 2d 937 (July 9, 2002)  Fred Daley gets outright reversal in fibromyalgia case where ALJ ignored treating doctor's opinion. Court stated, "Because the record is fully developed, it is appropriate for the Court to reverse the ALJ's decision outright."

posted Tuesday, July 30, 2002 | 10:54 AM