We recognize that “[P]lan administrators are not obliged to accord special deference to the opinions of treating physicians because there is also a potential conflict of interest on the part of a treating physician who, in a close case, may favor a finding for the patient.” Black & Decker Disability Plan v. Nord, supra. at 833. However, “plan administrators, of course, may not arbitrarily refuse to credit a claimant’s reliable evidence including the opinions of a treating physician.” Id. at 834.
Post v. Hartford Ins. Co., 2008 U.S. Dist. LEXIS 76916 (E.D. Pa. Oct. 2, 2008)
Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003) presents courts with opposing points of reference that allow latitude on judicial review. This point is demonstrated in Post, where the district court held in favor of the plaintiff after reversal and remand by the Third Circuit.
The case arose out of a termination of disability benefits. The unpleasant nature of the facts is revealed in this excerpt:
In early 2000, Hartford began to investigate whether Post continued to be disabled. This investigation included a surveillance of Post’s home which proved unsuccessful as it was reported to Hartford that “claimant was not observed leaving her home.” It also included efforts to obtain Post’s tax records from 1995 to 1999, and a Claimant Questionnaire.
In June 2001, Hartford also attempted to have a third party, Empire Medical Management, set up a Functional Capacity Evaluation (”FCE”) to evaluate Post’s claim for continued benefits.
And so on.
In fact there were so many tactics employed by Hartford that the sheer number of strategems worked together to suggest improper conduct by the plan administrator. The Third Circuit noted this by observing:
In sum, we agree with the District Court that, on this record, each irregularity here may appear minor. But given their number and regularity, the standard of review should be further heightened. As in Kosiba, we recognize that Hartford may offer plausible explanations for those irregularities, but in setting the standard of review the issue is merely whether the process raises questions. See 384 F.3d at 68. In this case, the sheer number of irregularities coupled with Hartford’s aggressive posture raise concerns, and so the standard of review must be heightened. This procedural posture suggests that we move toward the high end of the sliding scale, much as we did in Pinto. 214 F.3d at 394.
So, on return to the district court, the case underwent another detailed review, but from a different point of view. On remand, the district court took a fresh look at, among other things, the opinions of the plaintiff’s treating physicians.
On the one hand, notes the court, citing Nord, “[P]lan administrators are not obliged to accord special deference to the opinions of treating physicians because there is also a potential conflict of interest on the part of a treating physician who, in a close case, may favor a finding for the patient.”
On the other hand, the court quotes further “plan administrators, of course, may not arbitrarily refuse to credit a claimant’s reliable evidence including the opinions of a treating physician.”
And again, at another point, the court notes that ERISA does not require that plan administrators give the opinions of treating physicians special weight. Yet, “courts must still consider the circumstances that surround an administrator ordering a paper review.”
In short, Post provides an outline of the range of possibilities a court may consider if it decides that the plan administrator has allowed its conflict of interest to affect its judgment.
Note: The Third Circuit, as recounted by the district court, noted that the neglect of treating physician opinions can signal bias:
Specifically, the Court held that where courts have found evidence of procedural anomalies, bias, or unfairness, significantly greater scrutiny has been applied to the administrator’s decision. Id. Examples of procedural anomalies include an administrator who:
(a) relies on the opinions of non-treating physicians over those of treating physicians without explanation, Kosiba v. Merck & Co., 384 F.3d 58, 67-68 (3d Cir. 2004); (b) fails to follow the plan’s notification provisions and conducts self-serving paper reviews of medical files, Lemaire v. Hartford Life and Accident Ins. Co., 69 Fed. Appx. 88 (3d Cir. 2003); (c) bases its negative decision on inadequate information and incomplete investigations, Friess v. Reliance Standard Life Ins. Co., 122 F.Supp. 2d 566, 574-75 (E.D. Pa. 2000); (d) reverses an earlier decision allowing benefits without any new evidence that supports the reversal, Pinto, 214 F.3d at 394; (e) ignores the recommendations of its own claim managers that benefits should be awarded. Id.
Psychogenic Factors – The plaintiff’s maladies were at one point discribed as possibly phychogenic, i.e., produced or caused by psychic or mental factors rather than organic factors. This aspect of the opinion bears an interesting similarity to cases in which courts have granted greater weight to treating physician’s opinions where symptoms were of a psychiatric nature.