You already know that you do not have to give special deference to the opinions of treating physicians.

But you need to explain why the treating physician’s opinions are being rejected.

Overusing the same independent medical reviewers can adversely affect the weight given to your record reviews.

And, what about independent medical exams: Are they required? “‘[T]here is nothing inherently improper with relying [solely] on a file review, even one that disagrees with the conclusions of a treating physician.’… However, the failure to conduct a physical examination, where the Plan document gave the plan administrator the right to do so, ‘raise[s] questions about the thoroughness and accuracy of the benefits determination.

These issues are highlighted by the recent case of Shaw v. AT&T Umbrella Benefit Plan No. 1, __F.3d __, 2015 WL 4548232 (6th Cir. July 29, 2015) (PDF).

FACTS:  Shaw had chronic neck pain and sought ERISA-governed long term disability benefits. MRIs confirmed a cervical 6-7 disc herniation, and he had a positive EMG. His family doctor concluded he could sit or stand only 30 minutes at a time, and would need to lie down for an hour each time to recuperate. The Plan had two independent physician advisors (neurologist and pain management specialist) perform a records reviews. Both also attempted “doc-to-doc” calls with Shaw’s treating physicians, but were unsuccessful.

They concluded Shaw could work a sedentary job.  The claim was denied and Shaw sued.

TRIAL COURT: Granted Summary Judgment for the Plan.

SIXTH CIRCUIT HELD—REVERSED under the arbitrary and capricious standard of review:

  1. “[T]he Plan stated there were ‘no specific physical measurements of range of motion, …no specific physical examination to indicate functional impairment, …[and] no new neurological testing and motor strength testing.’ However, Shaw’s medical records provide just such information.” Op. at 12.
  2. “The Plan also ignored [the] residual-functional-capacity questionnaire submitted as part of Shaw’s appeal of the denial of LTD benefits.” Op. at 12.
  3. “‘[A] plan may not reject summarily the opinions of a treating physician, but must instead give reasons for adopting an alternative opinion.” Op. at 13.
  4. “Instead of offering evidence to contradict [the] residual-functional-capacity questionnaire’s conclusions, the Plan’s physician advisors simply ignored [it] and concluded Shaw could perform sedentary work.” Op. at 13.
  5. “An administrator acts arbitrarily and capriciously when it ‘engages in a selective review of the administrative record to justify a decision to terminate coverage.’” The doctors reviewing the medical records “engaged in selective review”. Op. at 14.
  6. “‘[T]here is nothing inherently improper with relying on a file review, even one that disagrees with the conclusions of a treating physician.’… However, we have held that the failure to conduct a physical examination, where the Plan document gave the plan administrator the right to do so, ‘raise[s] questions about the thoroughness and accuracy of the benefits determination.’” Op. at 15.
  7. “‘[P]hysicians repeatedly retained by benefits plans may have an incentive to make a finding of ‘not disabled’ in order to save their employers money and to preserve their own consulting arrangements.’” Op. at 16.