The Prudential Friendly Society was founded by insurance agent John Fairfield Dryden in a basement office in downtown Newark, N.J., in 1875. It was the first company in the U.S. to make life insurance available to the working class. In business for 137 years, it boast 48,000 employees worldwide.
At the O’Ryan Law Firm, we receive numerous calls a year from individuals who have become disabled, have disability coverage through Prudential, their doctor has reported to Prudential that they cannot work and Prudential denies the claim. One of Prudential’s favorite reasons for denying claims is what they call a lack of “objective medical evidence.” Many conditions, such as fibromyalgia or migraine headaches, result in symptoms, such as pain and fatigue, which are hard to prove objectively. There are no lab tests or diagnostic testing that are able to establish the severity of chronic pain or fatigue. Yet Prudential in these types of claims will insist on objective medical evidence to prove the disability thus making it nearly impossible to get the claim approved.
The courts have made clear in numerous cases that an insurer’s refusal to honor a claim for lack of scientific data such as lab tests and x-rays is an abuse of discretion where no such data exists in medicine for the conditions at issue and where licensed physicians have provided professional opinions that the conditions are genuine and credibly disabling the claimant. See Holmstrom v. Metropolitan Life Insurance Company, 615 F.3d 758, 769-772 (7th Cir. 2010); Leger v. Tribune Company Long Term Disability Benefit Plan, 557, F.3d 823, 834-835 (7th Cir. 2009); Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003).
In Holmstrom, the claimant suffered from Complex Regional Pain Syndrome (“CPRS”), a condition recognized by the medical community but for which there is no specific diagnostic test. 615 F.3d 758, 768. In that case, the plan acknowledged “Holmstrom’s claims of intractable pain, significant physical limitations, and cognitive deficiency as identified by [claimant and her treating physician],” but found “that the lack of objective findings to support ongoing total disability prevented [the plan] from determining whether [claimant’s] disability was genuine.” Id. at 764. In finding the Holmstrom plan’s denial arbitrary and capricious, the court stated that the plan “gave undue weight to the absence of objective measurements for [claimant’s] impairments,” reasoning that:
Subjectively painful conditions like CPRS and fibromyalgia pose difficult problems for private disability insurance plan administrators and the Social Security Administration, who understandably seek to make decisions based on the most objective evidence available. But we have rejected as arbitrary an administrator’s requirement that a claimant prove her condition with objective data where no definitive objective tests exist for the condition or its severity.
Likewise in Leger, the Seventh Circuit found the plan’s conclusion that claimant was not disabled because “[t]he medical records [did] not indicate objective clinical evidence on examination and testing, surgical report, diagnoses or pathology of a severity that would preclude [claimant] from gainful employment” (557 F.3d 823, 827) to be an abuse of discretion where a functional capacity evaluation concluded that claimant “was limited in her ability to sit in one position for extended periods of time.” 557 F.3d 823, 833. The Leger court reasoned that “[a]lthough this determination was based on [claimant’s] subjective complaints of pain, the evaluator concluded that [claimant’s] complaints of pain, and accompanying physical limitations, were both reasonable and reliable.” The court elaborated that
[E]ven if the source of pain cannot be located, it nonetheless can be real. Furthermore, here the Plan ignored the evidence in the FCE that Ms. Leger’s complaints of pain were reliable. Under these circumstances, we believe it was incumbent on the Plan or the Plan’s consultant) to do more than just dismiss the complaints out of hand. Instead, the Plan must explain why, despite evidence to the contrary in the FCE, it nevertheless finds Ms. Leger’s complaints of pain unreliable and why, if the complaints in fact are reliable, the pain Ms. Leger is experiencing is not completely debilitating. Without further explanation, there is an absence of reasoning in the record to support the Plan’s conclusion that Ms. Leger is capable of sitting without limitation and, therefore, performing sedentary work.”
Finally, in Hawkins, the Seventh Circuit found a plan’s insistence on objective evidence to support plaintiff’s claim that pain from fibromyalgia was disabling her to be an abuse of discretion where the diagnosis was not questioned, but only the severity of the condition. The Hawkins court reasoned that:
the gravest problem with the [reviewing physician’s] report is the weight he places on the difference between subjective and objective evidence of pain. Pain often and in the case of fibromyalgia cannot be detected by laboratory tests. The disease itself can be diagnosed more or less objectively by the 18-point test (although a canny patient could pretend to be feeling pain when palpitated at the 18 locations – but [here] the accuracy of the diagnosis of Hawkins’ fibromyalgia is not questioned), but the amount of pain and fatigue that a particular case of it produces cannot be.
See also Love v. National City Corporation Welfare Benefits Plan, 574 F.3d 392, 396-397 (7th Cir. 2009)(plan’s denial of benefits to claimant who suffered from multiple sclerosis held to be abuse of discretion where plan’s reviewing physician found that claimant did not exhibit any documented clinical signs of MS or other objective data supporting limited functional ability but where several evaluations by claimant’s treating physician opined that claimant’s functional limitations stemming from her MS made her unable to work).
The rationale behind this line of cases is perhaps best explained by the Seventh Circuit in Weitzenkamp v. Unum Life Insurance Company of America, 661 F.3d 323 (7th Cir. 2011), where a plan attempted to deny a disability claim based on fibromyalgia, chronic pain, anxiety and depression under a “self reported symptom” exclusion clause that was specifically designed to preclude coverage for “conditions that are, at their core, based on credibility rather than verifiable tests and procedures.” In Weitzenkamp, the Court noted:
For most illnesses or injuries, the disabling aspect is not the disease itself, but the pain, weakness, or fatigue caused by that illness or injury. Even diseases that are extremely likely to cause an inability to work, such as stage IV cancer or advanced heart disease, are disabling because of the pain, weakness or fatigue. Under [the plan’s] interpretation, however, those diseases would fall within the . . . limitation because pain, weakness and fatigue are self-reported symptoms that are difficult if not impossible to verify using objective medical evidence. In fact, at oral argument, [the plan] conceded that under its interpretation the provision would limit coverage for all conditions in which the disabling symptom is pain. [The plan] even maintained this was true regardless of the etiology of the pain, so that even if the underlying condition were highly likely to cause pain, the limitation would apply because the pain itself is self-reported and not verifiable.
In other words, a great challenge in disability determinations is determining whether the pain and fatigue from any particular condition are actually disabling the claimant at issue because many, if not all, medical conditions do not uniformly disable every individual they afflict, and there is no laboratory test that can determine whether a claimant is actually experiencing pain or fatigue. While the system of judicial review is sympathetic to this challenge, it flat out rejects as an abuse of discretion a plan’s insistence on undefined clinical data to support the disabling severity of a claimant’s pain and fatigue, directing plans instead to address the specific opinions of licensed physicians in the record.
One of the other reasons Prudential often utilizes to deny claims is that the claimant has had the condition for years while they continued to work. Many people push themselves for years, despite severe chronic pain and fatigue, because they do not want to face the inevitability of their disability. They don’t want to lose their job and their income. It is a very difficult decision to come to grips with the fact that your health has impaired your ability to work to the extent that it is necessary to stop working.
Under the case law, it is well established that a denial of benefits based on the insured’s having been at work prior to filing a claim with no recent change in physical condition to explain the timing of the claim is devoid of reason and thus arbitrary and capricious. See Hawkins v. First Union Corporation Long-Term Disability Plan, 326 F.3d 914, 918 (7h Cir. 2003). As Judge Posner famously reasoned in Hawkins v. First Union Corporation LTD Plan:
The plan’s bad argument is that because Hawkins worked between 1993 and 2000 despite his fibromyalgia and there is no indication that his condition worsened over this period, he cannot be disabled. This would be correct were there a logical incompatibility between working full time and being disabled from working full time, but there is not. A desperate person might force himself to work despite an illness that everyone agreed was totally disabling. Yet even a desperate person might not be able to maintain the necessary level of effort indefinitely. [A claimant] may have forced himself to continue in his job for years despite severe pain and fatigue and finally have found it too much and given up even though his condition had not worsened. A disabled person should not be punished for heroic efforts to work by being held to have forfeited his entitled to disability benefits should he stop working.
See also, Seitz v. Metropolitan Life Ins. Co., 433 F.3d 647, 651 (8th Cir. 2006)(“[A]dopting [the insurer’s] position would unfairly punish individuals who test their limitations and attempt to keep working before seeking benefits.”); Perlman v. Swiss Bank Corp. Comprehensive Disability Protection Plan, 195 F.3d 975, 983 (7th Cir. 1999) (“Some disabled people manage to work for months, if not years, only as a result of superhuman effort, which cannot be sustained).
If you have Prudential disability coverage and Prudential has denied your claim because Prudential claims you have not provided objective medical evidence to support your claim or that you have been working for years with the same condition, please contact the O’Ryan Law Firm to discuss your disability claim in more detail at (855) 778-5055.