While an ERISA plan administrator need not accord special deference to a treating physician’s opinion, Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 123 S. Ct. 1965, 155 L. Ed. 2d 1034 (2003), an administrator may not “arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician,” id. at 834. Moreover, eliminating one potential cause of a claimant’s disability may be insufficient to deny a claim if the symptoms are otherwise credible and other potential causes exist. See Abram, 395 F.3d at 887 (abuse of discretion to consider only one possible cause of claimant’s symptoms and ignore others).
Willcox v. Liberty Life Assur. Co., 2009 U.S. App. LEXIS 378 (8th Cir. Minn. Jan. 12, 2009)
In rejecting a per se “treating physician rule”, the Supreme Court’s opinion in Black & Decker Disability Plan v. Nord did not hold that treating physician opinions can be neglected. This recent Eighth Circuit opinion demonstrates an application of an important caveat in Nord – that the administrator must take into account treating physicians’ opinions in reaching its conclusions.
The case involved a claim to long term disability benefits. The initial claim was denied and a claim for benefits filed in the district court.
The Remand
After considering the arguments made by the parties to the district court, however, it decided to remand for Liberty Life to consider the new submissions by Willcox and “[a]ll other evidence relating to her claim” put forward by either party. Libery actually “invited” this remand, but objected to supplemental exhibits produced by the plaintiff in the course of the additional proceedings.
The Eighth Circuit found nothing inappropriate here since the materials produced were of a generic, explanatory nature:
. . . the exhibits offered by Willcox [the plaintiff] in the district court were culled from widely available medical publications and websites, all of which had been produced with no thought to litigation. In previous cases this court has itself cited public medical sources on its own initiative in order to provide context for a decision, see, e.g., Barnhart v. UNUM Life Ins. Co. of Am., 179 F.3d 583, 585-86 nn.4-7 (8th Cir. 1999), and at least one circuit has explicitly held that generic materials may be introduced in the district court in ERISA cases to provide context and guidance. Vega v. Nat’l Life Ins. Servs., Inc. 188 F.3d 287, 299 (5th Cir. 1999) (en banc) (”[E]vidence . . . that assists the district court in understanding the medical terminology or practice related to a claim would be . . . admissible.”).
The court stopped short of adopting a hard and fast rule, however, noting that:
But even if we decline to adopt a general rule permitting reviewing courts to consider generic medical exhibits in ERISA cases, the district court did not take it upon itself to review and consider the new evidence, but rather asked Liberty Life to do so. See King v. Hartford Life & Accident Ins. Co., 414 F.3d 994, 1006 (8th Cir. 2005) (en banc) (remand appropriate for “the administrator to consider in the first instance evidence received by the district court, but not presented to the administrator).
The Treating Physicians’ Opinions
After observing that the administrator failed to accurately and comprehensively consider the evidence before it, the court turned to the evidence comprised in the opinions of doctors that had examined the plaintiff.
. . . even if Dr. Marks’s report is accepted at face value, it at most addresses the alleged cause of Willcox’s lower leg pain; it does not in any respect rebut the existence of the debilitating pain. On this point the record indicates that every medical professional actually to have examined Willcox–from her initial treating physician to her orthopedic surgeon to pain management consultants to physical therapists–uniformly accepted that her symptoms were real. There is absolutely no evidence that she was malingering or that her complaints were manufactured.
While an ERISA plan administrator need not accord special deference to a treating physician’s opinion, Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 123 S. Ct. 1965, 155 L. Ed. 2d 1034 (2003), an administrator may not “arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions of a treating physician,” id. at 834. Moreover, eliminating one potential cause of a claimant’s disability may be insufficient to deny a claim if the symptoms are otherwise credible and other potential causes exist. See Abram, 395 F.3d at 887 (abuse of discretion to consider only one possible cause of claimant’s symptoms and ignore others).
The Eighth Circuit affirmed the district court’s grant of summary judgment for the plaintiff.
Note: As noted in previous posts, the superior forensic vantage point of a treating physician may trump a reviewing physician’s opinion, Nord notwithstanding, when the nature of the symptoms may favor an examination as the best means of assessment.
Selectivity In Review – In this case, the reviewing physicians’ opinions did not squarely meet the evidence. The court concluded that the administrator had built a case to support its denial rather than properly assessed all credible evidence.
. . . Liberty Life’s obligation as an ERISA fiduciary required more than combing the record for evidence in its favor and abandoning its review upon discovering “more than a scintilla” of such evidence. . . . Liberty Life was required to evaluate the available evidence in its entirety before reaching a determination, particularly after the district court had ordered it on remand to consider all of the evidence relating to her claim. The record does not show that the company met this duty, and we therefore conclude Liberty Life abused its discretion in denying Willcox’s claim.
And again:
Liberty Life was entitled to seek and obtain a professional peer review opinion from Dr. Marks, but it was “not free to accept this report without considering whether its conclusions follow logically from the underlying medical evidence.” Abram v. Cargill, Inc., 395 F.3d 882, 887 (8th Cir. 2005). Dr. Marks’s report–intentionally or not–mischaracterizes the medical evidence in several important respects.
Authorities On Selectivity – The following authorities were pertinent to the court’s analysis:
- Norris v. Citibank, N.A. Disability Plan (501), 308 F.3d 880, 885 (8th Cir. 2002)
- Torres v. UNUM Life Ins. Co. of Am., 405 F.3d 670, 681 (8th Cir. 2005) (abuse of discretion to “ignore[] evidence that was directly related to the Plan’s definition of disability”)
- Metropolitan Life Ins. Co. v. Conger, 474 F.3d 258, 265 (6th Cir. 2007)
- Moon v. Unum Provident Corp., 405 F.3d 373, 381 (6th Cir. 2005) (abuse of discretion to conduct “selective review of the administrative record” rather than “administrative record as a whole”)
- Govindarajan v. FMC Corp., 932 F.2d 634, 637 (7th Cir. 1991) (”[The plan administrator’s] selective review of the medical evidence and its completely erroneous assertion that there was no physical cause for the subjective symptoms of pain renders its decision not only unreasonable but arbitrary and capricious.”)
Standard of Review – The case made no mention of conflicts of interest or Glenn. The case was decided on an abuse of discretion standard of review with no particular attention to potential conflict of interest as a factor
Willcox v. Liberty Life Assur. Co., 2009 U.S. App. LEXIS 378 (8th Cir. Minn. Jan. 12, 2009)
In rejecting a per se “treating physician rule”, the Supreme Court’s opinion in Black & Decker Disability Plan v. Nord did not hold that treating physician opinions can be neglected. This recent Eighth Circuit opinion demonstrates an application of an important caveat in Nord – that the administrator must take into account treating physicians’ opinions in reaching its conclusions.