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The Employee Retirement and Income Security Act (“ERISA”) mandates that insurance companies and claims administrators provide claimants with the specific reasons for the denial or termination of employee benefits and the reasons for the denial must be in writing. See Militello v. Cent. States, Se. and Sw. Areas Pension Fund, 360 F.3d 681, 688 (7th Cir. 2004), cert. denied, 543 U.S. 869 (2004). The Department of Labor has promulgated regulations under ERISA which require certain information to be contained in a denial or termination of benefits letter. Specifically, 29 C.F.R. §2560.503(g) states:

Manner and content of notification of benefit determination.

(1)….The notification shall set forth, in a manner of calculated to be understood by the claimant –

(I) Reference to the specific plan provisions on which the determination is based;

(II) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary;

These requirements ensure that when a claimant appeals a denial to the plan administrator, he or she will be able to address the determinative issues and have a fair chance to present his case. Halpin v. W.W. Granger, 962 F.2d 685 (7th Cir. 1992). Describing the additional information needed, as required by this section, enables a claimant to gain a better understanding of the inadequacy of his claim and to gain a meaningful review by knowing with what to supplement the record. Wolfe v. J.C. Penney Co., 710 F.2d 388 (7th Cir. 1983).
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One of the most disabling symptoms for our disability clients at the O’Ryan Law Firm is chronic, severe pain. The type of pain that keeps you awake most of the night or forces you to lay down most of the day in order to alleviate the pain just a little bit. The pain that results from degenerative disc disease, fibromyalgia, neuropathy and failed back surgeries among other medical conditions. Disability insurance companies are loath to pay disability benefits when the most significant symptom is disabling pain. Oftentimes, the insurance company will discount considerable evidence that the chronic pain is a significant factor in the disability claim because many of the objective medical testing is “normal.” There are no x-rays, MRIs or CT scans that are able to document chronic, severe pain. However, many courts have held that a disability claimant can prove the severity of their pain by showing, with their medical records, repeated attempts to treat the pain including steroid injections, prescription medications, surgery, physical therapy and acupuncture. These treatment methods can show that a claimant is suffering from severe pain.

In this area, when there is an absence of testing to establish the source of pain, a claimant can show that they are disabled by chronic pain by proving that the claimant has diligently sought out treatment for the pain. The Seventh Circuit Court of Appeals has held that “medical science confirms that pain can be severe and disabling even in the absence of ‘objective’ medical findings, that is, test results that demonstrate a physical condition that normally causes pain of the severity claimed by the [plaintiff].” Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir.2004). Thus, while objective medical evidence must support a finding of an underlying impairment, subjective evidence can be used to demonstrate that the pain associated with that condition is disabling. Carradine, 360 F.3d 753; see also Hawkins v. First Union Disability Plan, 326 F.3d 914, 919 (7th Cir.2003) “Taken in the light most favorable to the plaintiff, the evidence of [plaintiff’s] repeated attempts to seek treatment for his condition supports an inference that his pain, though hard to explain by reference to physical symptoms, was disabling.” Diaz v. Prudential Ins. Co., 499 F.3d 640, 645 (7th Cir. 2007). In Sandell v. Prudential Ins. Co., 2007 WL 4404487, *7 (S.D. Ind. Dec. 13, 2007), the court found that a record review commissioned by the plan administrator was not persuasive, in large part because the reviewing physician failed to consider the claimant’s subjective pain symptoms or address whether the claimant’s pain made it impossible for the plaintiff to hold full-time gainful employment. Similarly in Gessling v. Group Long Term Disability Plan for Employees of Sprint/United Management, 693 F. Supp.2d 856, 866 the Court held:

The record here also shows that Gessling aggressively pursued for several years a range of therapies for his pain, including the rhizotomies, acupuncture, epidural injections, and even hypnosis. Those efforts are hard to reconcile with a theory that Gessling was exaggerating or lying about his pain. See Diaz v. Prudential Ins. Co. of America, 499 F.3d 640, 646 (7th Cir.2007) (reversing summary judgment for plan under de novo review; efforts at therapy supported credibility of claimant’s complaints of pain); Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir.2004) (remanding denial of Social Security disability benefits based on subjective pain complaints where claimant had undergone extensive, varied, and intrusive pain therapies).