Insurance Coverage and Bad Faith

Defending Against Subjective Disorder Claims

Defending Against Subjective Disorder Claims

This article was published in the August 2019 issue of "For the Defense,"  a journal published by DRI for defense, insurance and corporate counsel. 

In determining claimants’ eligibility for benefits, courts are often faced with the complex question of whether a subjective disorder is sufficiently supported by medical evidence despite not having a definitive, objective test for its diagnosis. Subjective disorders, also known as “self-reported” pains, may present a stark contrast to an individual’s objective medical information. In fact, objective medical findings are commonly inconsistent with an individual’s subjective claims. This discrepancy permeates the case law relating to subjective disorders such as chronic fatigue syndrome, fibromyalgia, and chronic pain syndrome. This article will consider these various subjective disorders and the courts’ treatment of the illnesses in the context of disability insurance benefits.

Policy Terms
In cases dealing with eligibility for insurance coverage, for disability or otherwise, decisions frequently hinge on the definitions used in policy terms. In cases arising from the denial or grant of disability insurance benefits, certain policy terms become particularly important. Two terms whose definitions pose a challenge when it comes to subjective disorders are discussed below.

Medically Determinable
Disability insurance policies commonly require a claimant to establish that his or her illness is “medically determinable” as a condition for eligibility for benefits. Conversely, if there is no showing of a medically determinable impairment, a claimant must be found “not disabled.” In Rodriguez v. McGraw-Hill Companies, Inc., the court discussed the meaning of medically determinable impairments in the context of subjective disorders and a claimant’s application for disability benefits. 297 F. Supp. 2d 676, 678–79 (S.D.N.Y. 2004). This was the central issue in Rodriguez, where the claimant claimed to be suffering from fibromyalgia. Id. at 676. The court ultimately found that fibromyalgia qualified as a medically determinable impairment, despite the absence of definitive, objective testing for its diagnosis.

The Rodriguez decision is notable because it is frequently relied on by other jurisdictions. For example, in Tretola v. First Unum Life Ins. Co., the U.S. District Court for the Southern District of New York referred to Rodriguez in noting that “experienced physicians do recognize fibromyalgia as a real entity” and as a medically determinable impairment. 2015 WL 509288, at *24 (S.D.N.Y. Feb. 6, 2015) (internal citation omitted). See also Reardon v. Prudential Ins. Co. of Am., 2007 WL 894475, at *13–14 (S.D. Ohio Mar. 21, 2007) (“Plaintiff’s doctors have identified medically determinable impairments supported by objective and clinical findings explaining the bases for plaintiff’s pain and limitations.… As plaintiff points
out in her brief, not all disabling conditions are subject to diagnosis by objective means.”) (citing Rodriguez v. McGraw-Hill Cos. Long Term Disability Plan, 297 F. Supp. 2d 676, 679 (S.D.N.Y. 2004)). Rodriguez and its progeny are seemingly consistent with courts’ interpretation of the “medically determinable” prerequisite for Social Security disability benefits. See, e.g.,Brown v. Colvin, 205 F. Supp. 3d 1269, 1274 (D. Kan. 2016) (holding that “[a] medically determinable impairment is one which can be shown by medically acceptable clinical and laboratory diagnostic techniques[ ]” and finding the claimant suffered from the medically determinable impairment of fibromyalgia).

Medically determinable impairments appear to be inconsistent with subjective disorders, which are often based on little more than a patient’s self-reported symptoms. Nevertheless, along with the medical field, the judicial system has evolved to make space for these increasingly encountered disorders. In determining whether an impairment is medically determinable, the court establishes factors to consider, weighs the evidence, and pays special attention to the credibility of the claimant.

Own Occupation or Any Occupation
In addition to proving that the impairment is medically determinable for purposes of eligibility for disability insurance, a claimant also must show that the impairment precludes him or her from performing his or her “own occupation,” or at times, “any occupation.” In Davis v. Nw. Mut. Life Ins. Co., the plaintiff, Frederick Davis, submitted a disability claim pursuant to a group long-term disability policy offered through his employer and administered by the defendant, Northwestern Mutual. 2018 WL 1069451, at *1 (W.D. Mich. Feb. 26, 2018). The plaintiff was a medical doctor licensed as an anesthesiologist. Id. Nevertheless, the parties could not agree on the proper characterization of the plaintiff’s “own occupation” for purposes of determining eligibility for long-term disability benefits.

With respect to the definition of disability, the subject policy provided, in relevant part, that someone was disabled under the policy terms if he or she met one of these “definitions during the period [the policy] applie[d]”: (1) the own occupation definition of disability, (2) the any occupation definition of disability, or (3) the partial disability definition. Id. at *2. The policy defined “own occupation” as follows:

Own Occupation. This is any employment, business, trade, profession, calling or vocation that involves Material Duties of the same general character as your regular and ordinary employment with your Employer. Your Own Occupation is not limited to your specific job with your Employer or to your specific area of specialization, interest or expertise within the general occupation. Id.

The court determined that the policy language was ambiguous and confusing and therefore construed its language in the plaintiff’s favor. Id. at *3. The court held that the better reading of the relevant Policy language is that Plaintiff’s Own Occupation is defined by reference to the Material Duties of Plaintiff’s employment with Michigan Pain Consultants as of the date of Plaintiff’s alleged disability, to the extent such are not inconsistent with or incompatible with the tasks an anesthesiologist might generally perform.
Davis, 2018 WL 1069451, at *3.

In Caldwell v. Standard Ins. Co., the court assessed whether the claimant, Mary Caldwell, qualified as disabled under the insurance policy’s more stringent “any occupation” definition of disability. 2015 WL 5031485, at *8 (S.D. W. Va. Aug. 25, 2015). Ms. Caldwell had a history of back pain and also cited “Acute Neck, Shoulder, Arm + low back pain” and “depression due to chronic pain” as the basis of her disability. Caldwell, 2015 WL 5031485, at *1. After exhausting her short-term disability benefits, Ms. Caldwell was found to qualify as disabled under the “own occupation” definition of disability, and she would remain eligible for benefits for twenty-four months. Id. at *6. However, to qualify for benefits beyond the twenty-four-month period, Ms. Caldwell had to satisfy the policy’s “any occupation” definition. The subject provision read,

You are Disabled from all occupations if, as a result of Physical Disease, Injury, Pregnancy or Mental disorder, you are unable to perform with reasonable continuity the Material Duties of Any Occupation.

Any Occupation means any occupation or employment which you are able to perform, whether due to education, training, or experience, which is available at one or more locations in the national economy and in which you can be expected to earn at least 80 percent of your Indexed Predisability Earnings within twelve months following your return to work, regardless of whether you are working in that or any other occupation.


Id. at *8. Standard denied the claimant’s continued eligibility after concluding that she was able to engage in sedentary work. In denying Ms. Caldwell’s application, Standard explained that her “chronic neck and back pain, shoulder pain, fibromyalgia and depression/anxiety… are considered part of the 24-month lifetime limitation.” Id. In other words, Standard found that while Ms. Caldwell may have been afflicted by those conditions, they were nevertheless considered “limited” after twenty-four months and no benefits would be paid for those conditions. Instead, Standard focused its “any occupation” review on the non-limited conditions, radiculopathy and herniated disc. Nevertheless, Standard reasoned that despite those medical conditions, Ms. Caldwell was capable of performing sedentary- level work, subject to certain restrictions, such as computer support specialist and office manager positions. Id. at *9. The court agreed and found Standard’s decision- making process to be “reasoned, principled and based on substantial evidence.”
Subjective Disorders

As the Ninth Circuit has explained, “[m]any medical conditions depend for their diagnosis on patient reports of pain or other symptoms, and some cannot be objectively established,” but “a disability insurer [cannot] condition coverage on proof by objective indicators… where the condition is recognized yet no such proof is possible.” Cruz-Baca v. Edison Int’l Long Term Disability Plan, 708 F. App’x 313, 315 (9th Cir. 2017). Subjective disorders may be defined as “ailments reported by the patient, for which objective findings are disproportionate to the symptoms, and for which we do not have the technology available to objectify the patient’s complaints.” Aksel Tveramo et al., An Integrated Understanding of Subjective Disorders in Clinical Practice, J. Norwegian Med. Ass’n (Nov. 25, 2014), In dealing with claims for disability benefits based on self-reported symptoms, courts have the potential to create precedent that opens the door to unsupported disability claims. The following explores courts’ treatment of three frequently- litigated subjective disorders when no objective data supports their existence: chronic fatigue syndrome, fibromyalgia, and chronic pain syndrome.

Chronic Fatigue Syndrome
Chronic fatigue syndrome (CFS) is a long-term condition that can cause significant impairment and disability. Inst. of Med., Beyond Myalgic Encephalomyelitis/Chronic Fatigue Syndrome: Redefining an Illness (Nat’l Academies Press, 2015). The exact cause of CFS is unknown, and no laboratory test can directly diagnose the disease. Therefore, a diagnosis is based on in-depth evaluations of symptoms and medical history and exclusion of other underlying diseases. Myalgic Encephalomyelitis/Chronic Fatigue Syndrome, Ctrs. for Disease Control and Prevent.,; Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011). According to an Institute of Medicine report, about 836,000 to 2.5 million Americans have CFS. Inst. of Med., Beyond Myalgic, Encephalomyelitis, supra.

Although CFS is the most common name for this disorder, it has also been known as chronic fatigue and immune disorder, myalgic encephalomyelitis, low natural killer cell disease, post-viral syndrome, Epstein-Barr disease, and Yuppie flu. Jacqueline L. Longe, Chronic Fatigue Syndrome, Gale Encyclopedia of Med. (4th ed. 2002).

In addition to the physical pain associated with this disorder, there is also a severe mental and emotional toll placed on the CFS sufferer. As a result of the prolonged and debilitating fatigue, and flu-like symptoms, CFS sufferers are forced to reduce their level of activity, and are often unable to lead what would be considered a normal life.

A. Martin Lerner, Method for Diagnosing and Alleviating the Symptoms of Chronic Fatigue Syndrome (May 17, 2005).

It is also important to note that “patients with chronic fatigue syndrome have good days and bad days, and that on a good day the patient might be able to perform [regular daily] activities… for an hour or two, but then end up in bed for several days due to overexertion.” Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 669 (9th Cir. 2011). Such characteristics of the disorder further aggravate an insurer’s or a court’s role in determining a claimant’s eligibility for long-term disability benefits.

In Vastag v. Prudential Ins. Co. of Am., the plaintiff, Brian Vastag, was diagnosed with CFS after years of symptoms of trigger points, post- exertional malaise, weakness, sore throat, and fatigue. No. CV156197KSHCLW, 2018 WL 2455921 (D. N.J. May 31, 2018). It is worth noting that his treating physicians were leading experts on CFS. In a letter to Prudential, one treating doctor reported that the plaintiff was unable to work and “incapable of any sustained physical or mental exertion.” In reviewing the record, the court recognized the plaintiff’s “robust medical file.” While Prudential recognized Mr. Vastag’s diagnosis, it maintained that it was based solely on self-reported pain and denied his application for long-term disability benefits. Its decision was based on “reports completed by a physician Board Certified in Occupational Medicine and by a Clinical Neuropsychologist, who provided their opinions as to his functional capacity.”

The court held that Prudential’s conclusion was “perplexing” and added that “the assessments of Prudential’s reviewers are not persuasive when measured against sophisticated and up-to-date medical conclusions made by highly experienced doctors.” The court admonished Prudential for relying on its experts’ “unsupported statements” and found that “none of the reviewers that Prudential principally relied on…demonstrated any expertise in CFS.” This was evidenced by their apparent unawareness of a hallmark of the syndrome: postexertional malaise, which means that those who have the syndrome “cannot snap out of their symptoms; when they force themselves to function, they get worse.” In sum, the court found that the plaintiff suffered from a seriously debilitating disease and held that the denial of long-term benefits was erroneous.

Similarly, in Salomaa v. Honda Long Term Disability Plan, the plaintiff, Samuel Salomaa, was diagnosed with chronic fatigue syndrome. 642 F.3d 666, 669 (9th Cir. 2011). One of the plaintiff’s treating physicians, Dr. Anderson, noted the ineffectiveness of various medications that had been tried for other conditions that might explain the symptoms. Id. Dr. Anderson wrote on March 4, 2005,

since beginning our Kaiser Permanente Chronic Fatigue/Fibromyalgia Clinic in 1992, Mr. Salomaa is one of the more severe patients that I have seen in the clinic as far as his energy level. He is totally disabled and would not be able to work even 30 minutes per day on a daily basis.
Id. Dr. Anderson’s finding was reinforced by the director of the New Jersey Medical School Chronic Fatigue Syndrome/Fibromyalgia Center. After his personal examination of the plaintiff, the director assessed him with “underlying chronic fatigue syndrome superimposed on extreme stress sensitivity” and found he was “one of the most disabled individuals” who he had encountered in his career. Id. Just as Dr. Anderson determined, the director concluded that Mr. Salomaa was unable to work because “simple cognitive tasks produce a dramatic worsening of his entire symptom complex.” Id. at 672. The dramatic symptom worsening from even minimal exertion was characteristic of chronic fatigue syndrome and was the thing disabling the plaintiff.
The plaintiff applied to Honda’s plan administrator for long-term medical disability benefits. Salomaa, 642 F.3d at 669.The plan fell under the Employee Retirement Income Security Act (ERISA). The claim manager denied Mr. Salomaa’s claim, reasoning that he presented no positive, objective, physical findings and highlighting that the plaintiff’s “thyroid, calcium, albumin, serum electrolytes, and CBC results were normal.” Id. Interestingly, contrary to her inference that Mr. Salomaa was healthy, his treating physicians had used these normal results to rule out alternatives to CFS. Id. Based on its review of the administrative record, the court held that the plan abused its discretion, noting, “Its decision was illogical, implausible, and without support in inferences that could reasonably be drawn from facts in the record.” Id. at 676. The court further emphasized that “every doctor who personally examined Salomaa concluded that he was disabled… [and] the plan administrator demanded objective tests to establish the existence of a condition for which there are no objective tests….” Id. Importantly, the court highlighted the plan’s failure to engage in reasonable review of the plaintiff’s claim for benefits:

At least four physicians examined Salomaa personally, as well as two psychologists who personally administered tests of Salomaa’s cognitive processing and a test to rule out malingering. Every one of them concluded, often in dramatic language, that Salomaa was totally disabled by his physical condition. Not a single physician who actually examined Salomaa concluded otherwise. The only documents with an “M.D.” on the signature line concluding that he was not disabled were by the physicians the insurance company paid to review his file. They never saw Salomaa. Salomaa’s lawyer wrote to the plan, offering to make Salomaa available for examination by its physicians. The administrator did not even respond to this offer. Thus the plan not only did not have its physicians examine Salomaa, but also rejected the opportunity to do so.
Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011).

The same reasoning yielded different results for a claimant allegedly suffering from chronic fatigue syndrome who sought Social Security disability insurance. Castile v. Astrue, 617 F.3d 923, 927 (7th Cir. 2010). The plaintiff, Barbara Castile, argued that the denial of her disability claim had improperly evaluated the limiting effects of her CFS. Id. Again, the court accorded fair weight to the claimant’s treating physicians. The court ultimately found that Ms. Castile “failed to present any medical evidence linking her chronic fatigue syndrome to the unacceptable level of absenteeism she alleges.” Id. Contrary to her claims, the court highlighted that none of Ms. Castile’s treating physicians opined that she was incapable of working. In addition, the court also emphasized a note in her medical records, which stated that Ms. Castile “was also very noncompliant and very co- dependent with her husband and histrionic. It was noted she had accepted the sick role with open arms, liking the attention and medicine.” Id. at 930. In addition, medical expert Dr. Giesel opined that the plaintiff’s ailments did not meet the definition of any of the disability listings, and that she was capable of performing the full range of sedentary work. Id.

Similarly, in Wells v. Colvin, the court held that the administrative law judge was not required to consider the plaintiff’s alleged CFS as a severe impairment because “the only physician in the record to diagnose this condition was an emergency room doctor who did so after a normal examination based on Plaintiff’s own reported history.” 87 F. Supp. 3d 421, 430 (W.D.N.Y. 2015) (emphasis added). At the hearing, the plaintiff, Sherry Wells, alleged that she was disabled due to diabetes, fibromyalgia, depression, anxiety, and CFS. Id. at 424. However, her medical records mainly showed that she received treatment for her uncontrolled diabetic condition and related symptoms. Despite her many visits with various physicians, only one diagnosed Ms. Wells with CFS. Again, we see the court paying special attention to a claimant’s medical records and treating physicians, although not always resulting in favor of coverage.

Fibromyalgia is also considered a subjective disorder and often reaches the judicial system coupled with CFS. Lamont v. Connecticut Gen. Life Ins. Co., 215 F. Supp. 3d 1070, 1078 (D. Colo. 2016) (“In fact, fibromyalgia and CFS are often “fellow travelers (‘comorbid,’ in medical jargon)” and produce overlapping symptoms with no scientifically perceptible cause.”). Fibromyalgia is “a common non- articular disorder of unknown cause characterized by generalized aching (sometimes severe); widespread tenderness of muscles, areas around tendon insertions, and adjacent soft tissues; muscle stiffness; fatigue; and poor sleep.” Oberste v. Colvin, 2015 WL 736907, at *3 (W.D. Ark. Feb. 20, 2015). Because the disabling symptom of fibromyalgia is typically pain, which is inherently subjective, whether fibromyalgia is disabling can only be determined by measuring the extent of a patient’s physical limitations, not by a diagnostic or laboratory test. Hawkins v. First Union Corp. Long–Term Disability Plan, 326 F.3d 914, 916 (7th Cir. 2003).

In discussing the difficulty courts face, the United States District Court of Colorado noted, [F]ibromyalgia presents [a] conundrum for insurers and courts because no objective test exists for proving the disease, its cause or causes are unknown, and its symptoms are entirely subjective[.]” Lamont, 215 F. Supp. 3d at 1078 (internal citations omitted). The same can be said for CFS. “The overlap between [fibromyalgia] and CFS is extensive and the label given to a particular patient may depend more on the specialty of the physician making the diagnosis then [sic] on the features of the disease.” Id. Thus, “the claimant’s subjective, uncorroborated complaints of pain [or fatigue] constitute the only evidence of the ailment’s severity. The medical inquiry is therefore intertwined with questions of the claimant’s credibility, which are the province of the Plan administrator.” Id. at 1078 (internal citations omitted).

Revisiting Rodriguez v. McGraw-Hill Companies, Inc. is appropriate here because it influenced the legal landscape surrounding whether fibromyalgia was “medically determinable” for purposes of receiving long-term disability benefits under the operative insurance plan. 297 F. Supp. 2d 676 (S.D.N.Y. 2004). In Rodriguez, the plaintiff, Yvonne Rodriguez, was diagnosed with a number of maladies, including fibromyalgia and CFS, and she claimed the severity of her symptoms precluded her from performing her normal duties. Id. at 677. She then received 100 percent weekly compensation for twenty-six weeks under McGraw-Hill’s short-term disability plan. Id. After exhausting the short-term disability benefits,
Ms. Rodriguez applied for long-term disability benefits under McGraw-Hill’s long-term disability plan for an additional twenty-four-month period of compensation. Id. at 677–78.

To receive long-term benefits under the plan, the plaintiff had to demonstrate that she qualified under the “total disability” provision, which required a plan participant to offer “proof that he/she incurred Total Disability due to accidental bodily injury or disease.” Id. at 678. Ms. Rodriguez had the burden of showing that “at all relevant times she was sufficiently incapacitated by medically determinable impairments to be unable to perform her normal duties.” Rodriguez, 297 F. Supp. 2d at 678. The insurer argued that “no such showing was possible because its diagnosis… is so subjective as not to be medically determinable.’” In deciding, the court relied heavily on a report by a professor of medicine and renowned rheumatologist, Lawrence Kagen, M.D., who was serving as a court-appointed technical advisor. Based on the report and relevant materials, the court found the disorder to be sufficiently supported by medical evidence to qualify as medically determinable. The court explained,

While the absence of a dispositive objective test may make the diagnosis more difficult, medical determinability has never been wedded to such a requirement-as shown, for example, by the numerous recognized mental disorders for which there is no objective test whatsoever. The Court therefore rejects defendants’ arguments that fibromyalgia does not qualify as a medically determinable impairment under McGraw-Hill’s Long Term Disability Plan.
Id. at 679.

Dr. Kagen’s report recognized that although “the causation and pathogenesis of [fibromyalgia] remain unknown,” it is nonetheless a “diagnostic entity recognized by the American College of Rheumatology.” Id. at 678. Indeed, the court agreed that fibromyalgia can result in a severe disability despite the lack of “objective tests which can conclusively confirm the disease” and is no longer an open question in the Second Circuit. Id. at 679 (citing Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003); Lisa v. Secretary of Dep’t of Health and Human Services, 940 F. 2d 40, 43 (2d Cir. 1991)). Nonetheless, despite finding that fibromyalgia was, in fact, medically determinable, the parties’ motions for summary judgment were denied. The court emphasized the need for further proceedings to determine if the plaintiff was in the requisite state of incapacity during the twenty-four-month period for which she sought damages.

In Kuhn v. Prudential Insurance Company of America, the plaintiff, Deborah Kuhn, asserted that she was disabled due to fibromyalgia. 551 F. Supp. 2d 413, 425 (E.D.Pa. 2008). She argued that the totality of the medical evidence supported her fibromyalgia disability claim. Id. Indeed, the court recognized that “[s]ince the onset of her condition in 2002, Plaintiff has been evaluated by at least a urologist, three neurologists, a rheumatologist, two psychiatrists, her family doctor, and a sleep specialist, and subjected to a battery of tests….” Id. at 428. After excluding other diagnoses, Ms .Kuhn’s treating physicians diagnosed her with fibromyalgia. Id. at 422. Her family doctor wrote,

After many years of treating Ms. Deborah Kuhn with multiple specialty exams, extensive laboratory and specialty testings, my medical diagnosis is fibromyalgia. This firm diagnosis is made upon personal physical examinations on multiple occasions. The review of multiple neurologic, orthopedic, infectious disease, psychiatric reports along with voluminous lab data makes any other diagnosis outside the limits of medical probability.
Kuhn, 551 F. Supp. 2d at 422

Nevertheless, the defendant, Prudential, found that Ms. Kuhn’s medical records were “insufficient to determine work impairment restriction or limitations in Ms. Kuhn’s functioning” and denied her claim. Id. at 423. In addition, Prudential argued that the evolving diagnosis of the plaintiff’s treating physicians was an unreliable process. As in Vastag, the court emphasized Prudential’s failure to rely on an expert that was educated in the field of fibromyalgia. Id. at 429 (“Defendant did not submit this matter to an expert who had experience to opine on fibromyalgia or perform the accepted ‘trigger point’ test on the eighteen tender spots on the body.”). Finally, the court found that Prudential’s denial of long-term disability benefits because of an absence of “objective findings” with respect to the plaintiff’s fibromyalgia claim was arbitrary and capricious. Id. at 431.

The court emphasized that it was impermissible as a matter of law for the defendant to require physical findings or objective medical evidence for a subjective disorder such as the one at issue. Id. (“Defendant in its motion for summary judgment continued to restate its erroneous reliance on objective medical evidence, stating: ‘the records supplied in support of [the plaintiff’s] appeal reveal that there was no objective documentation or clinical presentation of… fibromyalgia.’”). See also Gang v. Barnhart, 2003 WL 22183423, at *6 (E.D.N.Y. Sept. 23, 2003) (holding that “the assessments of the non- examining… consultants did not amount to substantial evidence that outweighed the opinions of [the plaintiff’s] treating physicians since the consultants’ disagreement with the treating physicians was incorrectly primarily based upon the absence of objective neurological evidence.”).

In an attempt to reduce its subjective nature, some disability plans have proscribed testing to diagnose fibromyalgia. See Boxell v. Plan for Grp. Ins. of Verizon Commc’ns, Inc., 51 F. Supp. 3d 759, 772–73 (N.D. Ind. 2014). In Boxell, the operative plan referred to a diagnostic test for fibromyalgia, under which a patient is considered to have fibromyalgia if he or she has tenderness in eleven or more of the eighteen trigger locations on the body. Id. at 772 (citing Hawkins v. First Union Corp. Long–Term Disability Plan 326 F.3d 914, 916 (7th Cir. 2003)). However, the Boxell courtnoted this test could only detect the presence of fibromyalgia, not its severity. Boxell, 51 F. Supp. 3d at 772 (“The disease itself can be diagnosed more or less objectively by the 18–point test…, but the amount of pain and fatigue that a particular case of it produces cannot be.”). See also Jacobson v. SLM Corp. Welfare Benefit Plan, 2009 WL 2841086, at *8 (S.D. Ind. Sept. 1, 2009) (“The tender point test injects some objectivity into the diagnosis of fibromyalgia, but the amount of pain caused by the disease can be measured only subjectively.”).

While the plan administrator in Boxell noted the plaintiff’s diagnosis of fibromyalgia, it concluded that it did not render her totally disabled within the meaning of the definition. Boxell, 51 F. Supp. 3d at 763–64 (“Employees are considered totally disabled if, as a result of illness, injury or pregnancy, they (1) are unable to perform the essential functions of [their] own job; (2) are not working at another job; and (3) are receiving appropriate care and treatment from a doctor on a continuing basis.”) (internal quotations omitted). However, because the test did not assess the severity of the disorder, the court held that it was an insufficient basis to terminate the plaintiff’s benefits. Id. For this reason, the court determined that the plan administrator’s termination of the plaintiff’s benefits was arbitrary and capricious. Id. at 772. The court stated, “Thus, while it is true that the tender points test itself would not support functional limitations, that test is neither meant nor able to assess the extent of a patient’s physical limitations, so this reason provides no basis on which to conclude that Ms. Boxell’s fibromyalgia is not disabling.” Id. At 773. In essence, the insurer’s attempt to objectivize a subjective disorder did not serve to establish the claimant’s disability conclusively.

Chronic Pain Syndrome
In Cruz-Baca v. Edison Int’l Long Term Disability Plan, the court found that “it was arbitrary and capricious for” Dr. Ramachandran Srinivasa, who was hired to perform an independent medical exam, “to fail to discuss and consider [Cruz-Baca’s] subjective complaints of pain as evidence of her chronic pain syndrome.” 708 F. App’x 313, 315 (9th Cir. 2017). The court further highlighted precedent that held, “conditioning an award on the existence of evidence that cannot exist is arbitrary and capricious.” Id. In its reasoning, the court wrote,

Pain is an inherently subjective condition and it is unclear what objective evidence the Plan was looking for in order to establish that Cruz-Baca’s pain prevented her from working. Neither the Plan nor Dr. Srinivasan offered any explanation as to why Cruz-Baca’s history of pain and pain-related treatment were insufficient to support a finding of disability. Under such circumstances, to disregard Cruz-Baca’s subjective complaints of continuing and pervasive pain was arbitrary and capricious.
Similarly, in Holmgren v. Sun Life and Health Insurance Company, plaintiff Dale Holmgren was a corporate tax director who ceased work in 2018, due to recurring back pain. 2018 WL 6336043, at *1 (N.D. Cal. Dec. 5, 2018). He sought treatment for his pain at least as early as 2008 and continued to seek a firm diagnosis and treatment throughout his disability application and appeal, which included having three invasive surgical operations. Id. at *8. Mr. Holmgren’s treating physicians documented an increase in his reported pain in August 2015, which continued at least through February 2016. Id. Each specialist who examined the plaintiff determined that he suffered from severe pain, which affected his ability to engage in even sedentary activity. Id.

After he submitted a claim for long-term disability benefits, Sun Life denied Mr. Holmgren’s claim, reasoning that the medical evidence did not support a finding that he was precluded from performing his job duties. Id. at *1. Mr. Holmgren appealed, and after a “paper-only review,” Sun Life affirmed the decision. On judicial appeal, the plaintiff had the burden of establishing by a preponderance of the evidence that he was disabled under the terms of the plan during the claim period. Holmgren, 2018 WL 6336043, at *1. Upon review, the court found that “the administrative record here suffices and a trial with live witness testimony is not necessary.” Id. Performing a denovo review of the claim, the court found in favor of the plaintiff, Mr. Holmgren. The court ruled that Sun Life inappropriately insisted on objective findings related to pain and inappropriately favored the opinions of its experts over those who actually treated the plaintiff. Id. at *3.

The operative plan defined “total disability” as being “during the relevant elimination period and the following twenty-four months, ‘unable to perform’ the Material and Substantial Duties of the Plan-holder’s Occupation due to Planholder’s Injury or Sickness.’” Id. at *2. As part of its investigation to determine Mr .Holmgren’s eligibility, Sun Life conducted surveillance, background searches, and social media searches and hired Professional Disability Associates (PDA), a peer review company, to provide a paper-only assessment of the plaintiff’s claim. Id. At *6. Dr. Stefan Muzin, a specialist in physical medicine and rehabilitation, submitted a report in which he found “no objective explanation to explain [plaintiff’s] subjective complaints.” Holmgren, 2018 WL 6336043, at *6 (alteration in original). Dr. Muzin concluded that “[b]ased on a review of available medical records, review of surveillance video, and discussion with attending physician, [plaintiff] should be able to work eight hour a day, forty hours a week” and that “there is no objective evidence to suggest why [plaintiff] would be unable to work these hours.” Id. (alterations in original).

The court added, “Sun Life’s attempt to circumscribe and distinguish the pain of which plaintiff complains as ‘objectively verifiable’ ‘spine pain’ fails to provide any authority, medical or otherwise, and is, therefore, unconvincing.” Id. Although the court recognized that many of the determinations made by Mr. Holmgren’s treating physicians were based largely on his self-reported symptoms, it held, “a disability determination may be based on a patient’s self-reported symptoms if said reporting is credible.” Id. at 8* (citing Demer v. IBM Corp. LTD Plan, 835 F.3d 893, 905–06 (9th Cir. 2016) (finding that an administrator abused its discretion in denying long-term disability benefits based on the claimant’s failure to provide objective evidence of disability where the claimant provided subjective complaints corroborated by his treating physicians).

In its holding, the Holmgren court echoed prior decisions, which favored the opinions of a claimant’s treating physicians over those of detached experts conducting “paper-only reviews.” Such is evidenced in the court’s decision, which included a section titled, “Favoring Consultant’s Opinions Over Examining Physicians’ Opinions.” Id. at *8. There, the court wrote:

Each of the doctors who examined plaintiff determined that he was unable to perform the duties of his sedentary job as a tax director. PDA’s consultants, Drs. Muzin, Lee, and Mitchell, only reviewed the records of other doctors and medical testing.… [C]ourts generally give greater weight to doctors who have actually examined the claimant versus those who only review the file. See Eisner, 10 F. Supp. 3d at 1115; Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011); Heinrich v. Prudential Ins. Co. of Am., 2005 WL 1868179, at*8 *(N.D. Cal. July 29, 2005) (failure of administrator’s physicians to examine claimant entitles their opinions to less weight than treating physicians since the nature of the condition at issue produces symptoms that must be evaluated through in-person examination); see also Cooper v. Life Ins. Co. of N. Am., 486 F.3d 157, 167 (6th Cir. 2007) (reliance of [sic] file reviewers rather than actual physical examination may “raise questions about the thoroughness and accuracy of the benefits determination”).
Holmgren, 2018 WL 6336043, at *8 (emphasis in original). The court noted that Mr. Holmgren’s treating physicians “based their opinions on… their own physical examinations of Plaintiff.” Id.

The Holmgren court’s reasoning is similar to that in Rodriguez v. McGraw-Hill Companies, Inc., where the court quoted Dr. Kagen’s expert review: “these are in effect the conclusions reached by the physicians who actually examined [the plaintiff], and… the experts who have suggested otherwise have examined the records, not the patient.” Rodriguez, 297 F. Supp. 2dat 679 (internal citations omitted). The courts’ leaning toward claimants’ treating physicians’ opinions rather than those of hired experts appears to be an emerging trend. Not only do courts favor the opinions of experts in the field of subjective disorders, but those who have actually examined claimants personally are also accorded deference.

In the land of subjective disorders, courts’ tendency to accord fair weight to a claimant’s treating physicians is logical. Despite case law that seemingly favors subjective disorder claimants’ eligibility for long-term disability benefits, courts routinely note the difficulty presented to plan administrators:

One can understand the frustration of disability plan administrators with claims based on such diseases as chronic fatigue syndrome and fibromyalgia. Absence of objective proof through x-rays or blood tests of the existence or nonexistence of the disease creates a risk of false claims. Claimants have an incentive to claim symptoms of a disease they do not have in order to obtain undeserved disability benefits. Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 678 (9th Cir. 2011). However, courts are visibly not hesitant to overturn administrators’ decisions.