Courts often do not clearly articulate what are key arguments in defending an action under the Employee Retirement Income Security Act of 1974 (ERISA) involving a claim for benefits based on subjective complaints. However, the stars recently aligned and U.S. District Judge Michael W. Fitzgerald of the Central District of California did just that in Haber v. Reliance Standard Life Insurance Company, No. 14-9566, 2016 WL 4154917 (August 4, 2016). He concluded that the plaintiff Orly Haber did not prove that her upper extremity pain complaints were severe enough to preclude her from performing an occupation normally performed in the national economy for which she was reasonably suited based upon her education, training, or experience (the “any occupation” standard). This article discusses the key points made by Judge Fitzgerald. The quotes in the subheadings below are taken from Judge Fitzgerald’s opinion.
The Facts Surrounding Haber’s Claim
Haber worked as a salesperson at Neiman Marcus from 2000 until 2011. She stopped working in this position and submitted a claim for long-term disability (LTD) benefits with Reliance Standard Life Insurance Company in August 2011 based on pain in her back, shoulders, neck, arms, and hands. Reliance paid the claim for 24 months based on the conclusion that Haber was unable to perform the duties of her occupation. However, Reliance denied the claim under the “any occupation” standard and the dispute ended up before Judge Fitzgerald.
Reliance’s acceptance of the claim initially made sense. Haber underwent cervical spine surgery in June of 2011. In the months immediately following the surgery, she continued to complain of pain in her neck, back, and arms and associated numbness in her arms. However, beginning in June 2011 and through April 2013, treating physician Amanuel Sima, MD, no longer reported any upper extremity numbness on physical examination. His records also indicated that between September 2011 and March 2012 Haber denied having any upper extremity weakness. Between August 2011 and May 2012, Dr. Sima found that Haber's chief complaint was limited to persistent neck and upper back pain. Dr. Sima stated in August 2011 that he expected Haber to make a full recovery in less than 12 months.
Haber also saw Mark Ganjianpour, MD, between April and December 2012. Dr. Ganjianpour’s records stated that Haber complained of pain in her arms, elbows, and hands. His notes indicated that it was possible that Haber suffered from “right hand cubital tunnel syndrome” and/or “bilateral hands carpal tunnel syndrome.” However, these suggested diagnoses were not supported by electromyography (EMG) results.
Haber was involved in a car accident in July 2012, which exacerbated her symptoms. She saw neurologist Cynthia Lynn Chabay, MD, in August 2012 and then again for a reevaluation in October 2012. Dr. Chabay's notes indicated that Haber complained of diffuse pain with palpation of the upper extremities and pain radiating into both arms with numbness, tingling, and even burning in both hands. Dr. Chabay referred Haber for another EMG study of the upper extremities and told her to return in four to six weeks. Haber did not undergo the EMG and did not return to see Dr. Chabay. Rather, she went back to Dr. Sima in April 2013.
The Decision by Reliance
Reliance concluded in August 2013 that Haber was not disabled under the “any occupation” standard as of July 13, 2013, as Haber could perform sedentary work. Reliance identified five alternative occupations that would meet Haber's sedentary work requirements. Haber appealed the decision to discontinue her LTD benefits.
During the pendency of the appeal, Reliance arranged for Haber to be examined by A. Michael Moheimani, MD. Dr. Moheimani concluded that Haber was capable of doing sedentary work activities eight hours per day, five days per week. He recorded Haber's complaints regarding her upper extremity pain but noted that the “[e]xamination . . . [was] normal with normal motor and sensory examination and normal reflexes” and that the examination did not support Haber’s subjective complaints.
Haber’s argument in the district court was based primarily on statements on a physical capabilities questionnaire (PCQ) which she claimed demonstrated conclusively that she was unable to perform sedentary work because she was incapable of reaching at waist or desk level for more than 33 percent of the workday. The PCQ was filled out and signed by Dr. Moheimani, who stated on the form that Haber was only capable of “reach[ing] at waist/desk level” for less than 33 percent of an eight-hour workday.”
The Key Arguments
Judge Fitzgerald concluded that Haber was not entitled to benefits under the “any occupation” standard. His analysis highlights many key arguments for an insurance company in the defense of a claim under 29 U.S.C. § 1132(a)(1)(B) that is based on subjective complaints.
1. The claimant has the burden of proof. (“A plaintiff challenging a benefits decision under 29 U.S.C. § 1132(a)(1)(B) bears the burden of proving entitlement to the benefits by a preponderance of the evidence.”)
An insurer should emphasize the burden of proof and present its arguments in the framework of the burden of proof. The burden of proof is critical because if it can be shown that a claimant did not meet his or her burden, the court may rule on that basis without reaching the issue of potential malingering or lying by the claimant in presenting his or her subjective complaints.
In Haber, Judge Fitzgerald noted that “the Court does not doubt that Haber suffered or even continues to suffer some degree of pain or numbness in her upper extremities.” Despite these subjective complaints, the court did not find in her favor because she did not meet her burden of proof: “What the Court is missing,” Judge Fitzgerald wrote, “[ ] is corroborating evidence for the specific claim that Haber is unable to perform the degree of fingering required in the Five Alternative Occupations. It is this specific finding that the Court cannot make in Haber's favor absent proof by a preponderance of the evidence that the pain or numbness is so debilitating that she is not capable of the frequent fingering required.” Framing the issue through the burden of proof gave Judge Fitzgerald a way of expressing questions about the severity of Haber’s subjective complaints without making a finding regarding the possible aggregation of her symptoms.
2. The claimant’s subjective complaints do not have to be accepted as credible. (“The Court is not obligated to accept Haber's subjective complaints at face value, especially not after they have been cast into doubt by an independent medical examiner.”)
This is another critical component of the burden of proof argument. Often district courts, particularly in California, seemingly accept the claimant’s subjective complaints as accurate. Here, Haber emphasized that the PCQ established that she was disabled. Judge Fitzgerald disagreed, concluding that the PCQ had limited weight. He recognized that the PCQ had presumably been based on Haber’s self-report, finding that at the time of the independent medical examination, “Haber not only had a strong incentive to over-report, she also knew of the Five Alternative Occupations from which she would need to be considered disqualified in order to remain eligible for LTD benefits.” He also found that Dr. Moheimani had concluded that “Haber's subjective complaints exceeded his objective examination findings” which were “more credible given the independent nature of his evaluation.”
Judge Fitzgerald relied on the details in the administrative record to find that Haber’s evidence was not credible. Judge Fitzgerald’s findings demonstrate how important it is for an insurer, when drafting the statement of fact sections of briefs, to point out each contradiction and inconsistency in the administrative record. These contradictions and inconsistencies build one upon another so that, collectively, they establish that the claimant’s subjective complaints are not credible.
3. There was no objective support for the claim. (“Aside from Haber's subjective complaints, however, Haber has not pointed the Court to any objective findings in the record that corroborate her alleged degree of upper extremity impairment.”)
Haber’s claimed level of impairment was not credible in part because the EMG results did not support the suggested diagnosis, Haber had refused to undergo a second round of EMG testing, and the physical examination conducted by Dr. Moheimani was normal. Often, claimants will argue that an insurer cannot deny a claim based on the absence of objective support for the purported symptoms. However, this applies when there is no objective basis to verify the existence of the claimed sickness. With respect to Haber, it would be expected that with such extreme subjective complaints, the EMG testing would have detected abnormalities, or that there would be abnormal findings on physical examination. The absence of objective support, when such support should exist because of the nature of the claim, is another key argument to show that subjective complaints may not be credible.
4. The clinical history did not support the claim. (“Setting aside the Court's conclusions regarding the PCQ, the Court's conclusion is further reinforced by Haber's history of medical treatment and records.”)
According to the court, the level of Haber’s subjective complaints did not match what she reported to her treating physicians. It is reasonable to expect that a patient will consistently report the same or similar pain complaints if in fact the pain is disabling. Judge Fitzgerald, relying on details from the medical records, found that Haber did not consistently report complaints of upper extremity pain. Inconsistences in the clinical picture were critical to the court’s determination.
Judge Fitzgerald also addressed the absence of treatment. If a person is experiencing debilitating pain, it is reasonable to expect that he or she will pursue treatment to obtain relief from the pain. Here, Dr. Chabay referred Haber for an additional EMG study and told her to return in four to six weeks. Haber did not undergo the EMG and did not return to see Dr. Chabay. Haber did not seek further medical treatment from Dr. Sima after April 2013, or any specialists after December 2012. Judge Fitzgerald concluded that “Courts discredit a plaintiff's subjective belief that she is disabled if she refuses treatment or is not diligent in following a treatment plan that could alleviate her symptoms.”
Defending a disability lawsuit under ERISA which is based on subjective complaints is not easy in the Ninth Circuit and particularly in California. Success is more likely if an insurer’s arguments are presented in the framework highlighted by Judge Fitzgerald in Haber v. Reliance Standard Life Insurance Company.