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Insurer Can Require “Objective Evidence” of Inability to Perform Job Duties – D. Ks.

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  • Insurer Can Require “Objective Evidence” of Inability to Perform Job Duties – D. Ks.

    Insurer Can Require “Objective Evidence” of Inability to Perform Job Duties – D. Ks.
    Attached hereto is a case out of the District of Kansas, Brende v. Reliance Standard Life Insurance Company. In this case, plaintiff, an attorney, seeks long term disability benefits under an ERISA governed plan. The recitation of facts is quite lengthy, however, the gist is that plaintiff ceased working due to various symptoms. Despite their best efforts, none of her physicians could diagnose her with a specific condition. Defendant denied her claim asserting that she was not disabled from performing her prior occupation. Plaintiff exhausted administrative remedies and filed suit. On motions for judgment before the court, plaintiff argued that defendant erroneously added a requirement that her disability be proven by objective medical evidence. The court found that defendant could require objective evidence that plaintiff could no longer perform her job as an attorney.

    The Plan defines “Total Disability” to mean “that as a result of an Injury or Sickness, during the Elimination Period and thereafter for which a Monthly Benefit is payable, an Insured cannot perform the material and substantial duties of his/her Regular Occupation.120 The Plan thus defines “disability” not in terms of satisfaction of specific diagnostic criteria or objective medical proof of an illness, but rather in terms of the performance limits a claimant faces in her occupation due to any sickness or injury. Accordingly, Brende must demonstrate by a preponderance of the evidence that she is unable to perform the material and substantial duties of an attorney.

    In its Initial Denial Letter, Reliance advised Brende that the documentation provided indicated that her Total Disability is caused by or contributed to by a “Self-reported disorder,” specifically, a skin sensation, that is subject to the Mental or Nervous Disorders limitation.121 Reliance explained that a medical review by a nurse stated that her condition has a “psychogenic contribution” and her symptoms were related to a “stressful year.”122 Reliance had Dr. Bellino evaluate her file to determine if her diagnosis had any physical impairment in addition to her mental/nervous disorder, and he concluded that it is plausible that mental nervous condition is the underlying cause and there is no physical evidence supporting her complaints of weakness.
    In its Final Denial Letter, Reliance justified its denial in part, because Brende’s “[s]ensory change on the left side of her body are subjective and cannot be reliably confirmed. No neurologic disorder has been identified to explain her symptoms.”123

    The record in this case indicates Brende suffers from an undiagnosed condition characterized by numbness, dizziness, weakness, and fatigue. Brende’s condition appears to share a feature with conditions like fibromyalgia and chronic fatigue syndrome, in that its symptoms are entirely subjective. As this Court previously noted in Swanson v. Unum Life Insurance Co. of America, “[s]uch conditions have presented difficulties for insurers and courts evaluating disability claims.”124 “[C]ourts have held that plan administrators may reasonably require objective evidence of the occupational limitations caused by a claimant’s condition, even if the condition itself cannot be diagnosed through objective means.”125 Such balancing has resulted in a general rule: “while a plan administrator may not reasonably demand objective medical evidence of a condition that is incapable of objective diagnosis, it may reasonably require objective evidence that a claimant’s diagnosed condition renders her unable to perform her occupational duties.”126 Although the Tenth Circuit has not adopted this rule in a published decision, this Court has previously found the rule persuasive and will adopt it in its analysis of this case as well.127

    As explained in Swanson,
    This “objective evidence requirement,” moreover, does not require claimants to submit evidence that does not exist. Courts have found that objective evidence of occupational limitations may be provided through tests of claimants’ physical strength, stamina, or mental ability. Psychiatric evaluations, for example, may show whether claimants struggle to concentrate or interact with others in a positive manner. And courts routinely rely on the results of “functional capacity evaluations” to test a claimant’s actual ability to perform physical tasks such as sitting, standing, walking, lifting, and reaching. Because those tests turn not on claimants’ reporting of subjective symptoms, but rather on demonstrated ability to perform work-related tasks, they constitute objective evidence of disability. Defendant was entitled to require such, or similar, objective evidence in this case.128

    Brende argues that by requiring objective evidence of her symptoms and condition, Reliance imposed an objective medical evidence requirement pursuant to a condition not present in the Policy. Brende focuses on the language in the Final Denial Letter, where Reliance stated “[s]ensory change on the left side of her body are subjective and cannot be reliably confirmed. No neurologic disorder has been identified to explain her symptoms.”129 But this language is cited in isolation; the entire paragraph in the Final Denial letter states:

    Based on a review of Ms. Brende’s complete file, we have determined that her physical conditions would not prevent her from performing work function. Ms. Brende is capable of performing her Regular Occupation as an attorney, which is classified as a sedentary exertion level occupation.

    In order to qualify for continuing LTD benefits, the medical evidence must show that your client’s conditions prevent her from performing her Regular Occupation. You must show that that symptoms from her conditions are in fact disabling, in accord with the terms of the Policy. The record reveals that Ms. Brende has full bulk strength in all 4 extremities with normal tone. Sensory changes on the left side of her body are subjective and cannot be reliably confirmed. No neurologic disorder has been identified to explain her symptoms. The record reveals that Ms. Brende is able to care for her three children, prepare meals, and attend school functions.

    Moreover, we note that Ms. Brende’s treating neurologist, Dr. Allen, has consistently found Ms. Brende to have full strength and good motor coordination in all extremities.130
    Thus, under Swanson, it was well within Reliance’s discretion to require objective evidence that Brende lacked the ability to engage in work as an attorney.
    In the end, the court remanded the case back to defendant because it found that defendant abused its discretion by not considering the actual cognitive duties of plaintiff’s job.

    Nevertheless, the Court finds that Reliance’s decision was unreasonable because it failed to consider Brende’s actual job duties in defining her regular occupation. Under the Policy, an insured is disabled when he or she “cannot perform the material and substantial duties of his/her Regular Occupation.” “Regular Occupation” is defined as “the occupation the Insured is routinely performing when Total Disability begins. We will look at the Insured’s occupation as it is normally performed in the national economy, and not the unique duties performed for a specific employer or in a specific locale.”131

    In its Final Denial Letter, Reliance concluded that Brende’s limitations and restrictions did not physically preclude her from working as an attorney, which is classified as a sedentary exertion level occupation.132 Reliance’s Occupational Data document specifies the strength requirements for an attorney as “Sedentary. Lifting, Carrying, Pushing, Pulling 10 Lbs. occasionally. Mostly sitting, may involve standing or walking for brief periods of time.”133 The Data document also states physical demands include reaching, handling, fingering, talking, hearing, and near acuity.134 Work situations include dealing with people, influencing people in their opinions, attitudes, and judgments, and making judgments and decisions.135 Non-physical aptitudes include general learning ability, verbal aptitude and numerical aptitude above the 89th percentile.136 Tasks include conducting research, client contact, preparing written legal argument, preparing for trial, and interpreting law.137

    When an ERISA plan defines disability in terms of whether a claimant is unable to perform the material functions of his or her job, “it is essential that any rational decision to [deny] disability benefits . . . consider whether the claimant can actually perform [his or her] specific job requirements.”138 The Tenth Circuit has recognized that a denial of benefits is arbitrary and capricious if premised on medical reports that fail to consider one or more of the claimant’s essential job functions.139

    Accordingly, the Court concludes that Reliance’s Final decision to deny Brende LTD benefits was arbitrary and capricious because it addressed only one aspect of her occupation, the general sedentary nature of the work. Reliance failed to address that at a minimum, the substantial and material duties of an attorney include non-physical tasks, demands, and aptitudes, including research, client contact, and frequent near acuity. These omissions are troubling, particularly because it was Reliance’s own Occupational Data document that specifies these non-physical tasks, which are clearly the focus of Brende’s claimed disability. Indeed, Brende has never denied that she is sometimes capable of normal physical exertion; rather, it is sensory dysfunction, cognitive impairment, fatigue, and malaise that she alleges prevent her from practicing law.

    Moreover, the record contains several sources of evidence that concentrate on the non-physical duties required of an attorney. Over two years of evidence reflect Brende consistently sought treatment for her symptoms. Dr. Allen assessed Brende’s limitations, finding a degree of neurological impairment, that she was moderately limited in her ability to perform complex and varied tasks, and more specifically, that she cannot practice law. After reviewing the medical evidence, Dr. Levy interviewed and questioned Brende to assess her functional limitations. In his evaluation, he identified specific limitations in the process of assessing a GAF score of 80:

    Her inability to function in a work environment is cause by the undiagnosed syndrome. Judgments regarding work limitation would be best made by her neurologist. However, she is not able to move fast and where she needs to go through complexity after complexity and interruption after interruption. . . . The patient tires very easily, needs continually to rest after effort in daily life tasks, perceives herself as weak, is in several different kinds of pain, including paresthesia’s, gets dizzy and aches. These greatly limit her ability to do more than basic activities of living and much of the care of her children and maintaining a relationship with her husband.

    Notably, Reliance does not mention Dr. Levy’s specific limitations in its Final Denial letter, despite the fact that he performed an independent medical evaluation at Reliance’s behest

    By contrast, the reports Reliance relies on describe Brende’s job duties as “sedentary,” and did not discuss the effect of Brende’s impairments on the non-physical duties of her occupation. The fact that Brende can physically perform sedentary work functions, however, is not sufficient to meet the requirements of the profession. “On this opaque record, there is simply no way to tell whether the reviewers were applying a correct conception of the [plaintiff’s job duties] . . . or some other conception.”140 Without such information, the Court cannot conclude that Reliance’s denial of benefits is predicated on a reasoned basis.141
    Attached Files

  • #2
    We were grateful for the remand, but -- needless to say to anyone here -- it's frustrating to restart the process.


    • #3
      I agree! I just won a case in N.C., and the Court ordered a remand. Seems to be the trend these days, which doesn't bode well for attorneys or clients.


      • #4
        Well, there's always Hardt v. Reliance...