What happens when the Social Security Administration issues a disability finding after the ERISA administrator has issued the decision denying disability benefits?

Is the ERISA administrator obligated to reevaluate the record based on this new finding? No.

Should the Court consider this as “evidence” in a subsequent lawsuit?  No.

This new case highlights the point. Ortiz v The Hartford, 2019 WL 5697784 (D. New Mexico November 4, 2019)(“[W]hen Social Security decisions arise after the close of the ERISA record, there is nothing for the administrator to assess, and the administrator needn’t reevaluate the ERISA claim.”)(attached).

FACTS: Plaintiff received disability benefits due to fibromyalgia and degenerative joint disease from February 2014 to September 6, 2016.  At that time Hartford determined, based on three medical reviewers, that she could perform jobs under the “any occupation” standard. Plaintiff later received a favorable decision for Social Security disability benefits. The plan conferred discretionary authority to Hartford.

ISSUE: Whether the Court should consider a Social Security Administration disability determination rendered after the close of the record for the administrative decision?

DISTRICT COURT HELD: NO

  1. “Hartford fairly and thoroughly evaluated Ortiz’s medical history at the end of the two-year period under the any occupation standard.”  Op. at 3
  2. Hartford produced an “Employability Analysis Report” based on information from Ortiz’s physician and found based on those physical restrictions she could perform three positions, including case aide, referral clerk and gate guard.  Op. at 3.
  3. Plaintiff argued that her treating physician’s opinions “should carry additional weight.” But the Court determined that the three independent doctors considered the treating physician’s opinions.  Besides that,  the Tenth Circuit has held that the conflicting opinion of the primary doctor is “not in and of itself a basis for reversal.”  Op. at 3.
  4. The Court concluded that it did not need to consider the later Social Security decision. Hartford’s decision came one year before the Social Security judgment.  When the administrator’s decision occurs prior to the Social Security disability decision, it cannot take the latter information into account. Op. at 3
  5. “[W]hen Social Security decisions arise after the close of the ERISA record, there is nothing for the administrator to assess, and the administrator needn’t reevaluate the ERISA claim.”  Op. at 4.

You know that the standard of review applied by courts will significantly impact how courts view an ERISA Plan administrator’s interpretation of an undefined plan term.

But what impact should an insurer’s policy manual have in assessing the “intent” of a plan term?  NOT MUCH.

This new case highlights both points.

Caldwell v. Unum Life Insurance Company of America, 2019 WL 4463495, ___Fed Appx. ___ (10th Cir. September 18, 2019)(Accidental death claim resulting from speeding vehicle excluded under “crime exclusion”: “[J]udicial reliance on a claims manual in this context is problematic when there is no evidence the manual was offered to, or even available to, an insured or otherwise used in advertising or closing a sale.”)

FACTS. Caldwell, an employee of Sinclair, died while driving on an unpaved road, and at nearly 40 miles per hour over the posted speed limit. Caldwell’s beneficiaries sought ERISA governed accidental death and life insurance benefits. Unum, the administrator, granted the life insurance benefit but denied the accidental death benefit because of an exclusion for “accidental losses caused by, contributed by, or resulting from[]…an attempt to commit or commission of a crime.” Speeding is a misdemeanor under Wyoming law. The plan conferred discretionary authority to the plan administrator.

The Caldwells argued that accidental death benefits were wrongfully denied because: (1) the term “crime” was not defined in the crime exclusion, (2) the term “crime” is capable of two different and contradictory interpretations; and, (3) Unum’s internal policy manual exempts traffic violations, including speeding from the definition of “crime.” 

ISSUE: Whether the Plan’s “Crime” exclusion includes speeding?

TENTH CIRCUIT HELD:

  1. Under the abuse of discretion standard of review, “‘A decision denying benefits based on an interpretation of an ERISA provision survives arbitrary and capricious review so long as the interpretation is reasonable.’” Op. at 2.
  2. Unum’s interpretation, that speeding was a ‘crime’, was reasonable.”  Op. at 2.
  3. “[W]e agree with the district court that the policy manual does not purport to be definitive and has substantial play in the joints….At the end of its discussion of the crime exclusion, the manual states in bold type: ‘Reminder: Each claim is unique and must be evaluated on its own merits.  The actual policy governing the claim must be referenced.’” Op. at 2.
  4. “[J]udicial reliance on a claims manual in this context is problematic when there is no evidence the manual was offered to, or even available to, an insured or otherwise used in advertising or closing a sale.”  Op. at 3.

NOTE: The dissent argued: The Plan’s “Crime” exclusion “is ambiguous… because the word “crime” is susceptible to two reasonable—albeit contradictory—interpretations: one covers speeding and one that excepts speeding.” Op. at 12. The dissent also relied on Unum’s policy manual to establish whether speeding was intended to be interpreted as a crime even though the dissent agreed “the [policy] manual is not the plan and cannot override the Plan terms……”  Op. at 14.

 

ERISA plan administrators are constantly pressured by claimants to render decisions quickly…. This is especially true with short term disability claims.

You already know that ERISA regulations require that disability claim benefit decisions be made “within a reasonable time but not later than 45 days after receipt of the claim.” 29 CFR § 2560.503-1. This period may be extended “for up to 30 days” twice, under certain circumstances.

So, what does “within a reasonable time but not later than 45 days” really mean? 

Can one get into trouble by deciding a claim too quickly?  Yes!  “Slowing down is sometimes the best way to speed up.”

Here’s the case of Speca v. Aetna Life Ins. Co., 2019 WL 3754210 (D. Nev. August 8, 2019)(Initial claim denial made within 14 days of claim submission: “Defendant should have—at a minimum—waited a few more days to gather medical records before denying Plaintiff’s initial claim.”)

FACTS: On November 7, 2015 Speca submitted a claim for ERISA-governed short term disability benefits. The Plan terms stated that decisions on claims for disability would be made “as soon as possible but not later than 45 calendar days after the claim is made.” The Plan also had the right to “extend the 45 day window twice, by 30 days each time,” if the claimant was notified “within the first 45 days of its intent to extend.”

-November 9, 2015: Aetna began attempting to obtain records from physicians. There was some difficulty reaching Speca to obtain information to retrieve records. Aetna informed Speca that it intended to make its decision on his claim within 14 days from the date he first submitted the claim, and urged him to call Aetna to provide further information.

-November 20, 2015:  Aetna denied the claim in part because Aetna had not received records from Speca’s treating physicians. Speca appealed, and submitted additional records.  And, Aetna retained a doctor to perform an independent record review of the records provided. Aetna then denied the appeal, and Speca brought suit.

ISSUE: Whether Speca was afforded a “full and fair” review of his claim?

DISTRICT COURT HELD: NO.

  1. “[N]othing in the Policy required Defendant to decide within 14 days….Therefore, Defendant’s argument that it had to deny Plaintiff’s claim at the conclusion of a 14-day investigation even while it was waiting on medical records is unpersuasive.”  Op. at 6-7.
  2. “While Defendant left Plaintiff several messages stating it would decide his claim by November 20, the administrative record reflects that he did not understand those messages, or may have not received them.”  Op. at 7.
  3. “Defendant should have—at a minimum—waited a few more days to gather medical records before denying Plaintiff’s initial claim.” Op. at 7.
  4. “[E]ven if Defendant ultimately made the right decision on the merits during Plaintiff’s appeal, it never reached the merits of the claim until that appeal….Plaintiff essentially received his initial claim review during his appeal with Defendant [and this denied Plaintiff] a full and fair review….”  Op. at 7-8.

You already know that ERISA regulations set specific timelines for the issuance of ERISA-governed long term disability decisions. See, e.g., 29 C.F.R. 2560.503-1(i)(1)(i) (45 days for disability claims and 60 days for others). In special circumstances, the administrator can extend the time by which benefit decisions are made.

An administrator’s failure to issue benefit decisions can have consequences: in those situations a claimant shall be deemed to have exhausted administrative remedies (and can sue), and the benefit denial may be reviewed under the de novo standard even if the administrator had discretionary authority.

But what happens when the administrator issues the benefit denial just “a little late?”  

Can the doctrine of “substantial compliance” excuse the late decision? NO.

Here’s the case of  Fessenden v. Reliance Standard Ins. Co. and Oracle, 927 F. 3d 998 (7th Cir. June 25, 2019)(The 2002 ERISA regulation amendments preclude application of the common law substantial compliance doctrine to late issued benefit denial decisions).

FACTS: Fessenden, a software manager, sought ERISA-governed long term disability benefits due to Chronic Fatigue Syndrome.  Reliance denied the claim.  The denial letter outlined how he could appeal, stating that Reliance would issue its “final decision within 45 days of the date that it received a request for review… unless special circumstances existed.” If the appeal involved special circumstances, Reliance would notify him of the final decision no later than 90 days from the date that it received the request. (These deadlines are also contained in 29 C.F.R. 2560.503-1).

Before Reliance issued the final decision, but after the 90 day deadline had passed, Fessenden sued Reliance and Oracle.

ISSUE: Can the doctrine of “substantial compliance” excuse a late issued benefit denial?  NO.

SEVENTH CIRCUIT HELD:

  1. “[W]hen a plan administrator fails to follow required procedures, such as deadlines for issuing decisions, ‘a claimant shall be deemed to have exhausted the administrative remedies available under the plan.’” Op. at 4.
  2. “The absence of a final decision…affects the standard of review. When a benefit plan gives the administrator discretionary authority…[but fails to render a final decision], there is no valid exercise of discretion to which the court can defer, and it decides de novo whether the insured is entitled to benefits.”  Op. at 4-5.
  3. Reliance argued that a decision issued  “a little bit late” is different from a case in which an administrator altogether fails to render a decision. And, because the decision was only a little bit late, Reliance argued the “substantial compliance” doctrine should excuse the late decision. Op. at 5.
  4. The “substantial compliance” doctrine, as a common law doctrine, “cannot override regulations that ERISA has authorized the Department of Labor to adopt.” Op. at 6.
  5. There is some question whether the “substantial compliance” doctrine exists after the 2002 amendments to the ERISA regulations.  Op. at 6-9.
  6. Even if the substantial compliance doctrine “remains valid, it does not apply to the violation of regulatory deadlines.” Op. at 10. (emph. added).
  7. “[S]ubstantial compliance with a deadline requiring strict compliance is a contradiction in terms.” It runs “afoul of Section 2560.503-1(i)(1)(i), which says that ‘in no event’ can a deadline be extended further.” Op. at 11. (emph in original).
  8. Other circuits have been willing to apply the substantial compliance exception to missed deadlines. But those decisions “relied on precedent that predates the 2002 version of the regulations.” Op. at 14-15.

 

What does it mean to be totally disabled from the “regular occupation”? 

Is “regular occupation” defined as the duties the claimant is actually doing in his or her specific job?  NO.

Each claim should be assessed from the perspective of duties of the job generally in the national economy and not how the job is “performed for a specific employer or in a specific locale.”

Here’s the case of Nichols v. Reliance Standard Life Insurance Co., __ F.3d __ 2019 WL 2223614 (5th Circuit May 23, 2019) (Claimant claimed she could not work in cold conditions at poultry plant. Court affirms benefit denial because job duties of “regular occupation” are defined in the national economy, not the specific employer, and working in cold is not a job duty nationally).

This important new case shows how the definitions of “regular occupation” should be defined. Kudos go to my friends Josh Bachrach and Wilson Elser for a nice win.

FACTS.  Nichols worked as “Hazard Analysis” Coordinator or “Sanitarian” at a chicken processing plant. She claimed part of her “Regular Occupation” duties involved working in cold temperatures, around 40 degrees. She sought ERISA-governed long term disability benefits, claiming her Raynaud’s condition precluded her from working in cold temperatures—she would get gangrene (e.g., finger/toe body tissue dies). The policy defined “Regular Occupation” as duties “normally performed in the national economy”— not how the job is “performed for a specific employer or in a specific locale.” The benefit denial decision was reviewed under the abuse of discretion standard.

Reliance determined working in cold temperatures was not a material duty of Nichols’s Regular Occupation and concluded she was not totally disabled—she could perform the regular duties of a Sanitarian, as defined by the Dictionary of Occupational Titles (DOT). Nichols sued seeking benefits.

DISTRICT COURT HELD: Nichols was totally disabled from performing her position in cold temperatures.

FIFTH CIRCUIT HELDREVERSED—Claimant properly denied benefits because she could perform “regular occupation” duties as defined generally by the Dictionary of Occupational Titles (DOT).

  • “‘If the plan fiduciary’s decision is supported by substantial evidence and is not arbitrary and capricious, it must prevail.’”  Op. at 7.
  •  “[P]recedent does not require that an administrator consider each of a claimant’s duties to determine his regular occupation.”  Op. at 8. 
  •  “Reliance’s classification [of job duties] was easily based on substantial evidence.”  Op. at 8.
    • [A] claimant’s regular occupation must be defined at a high level of generality, ‘referencing the activities that constitute the material duties of the [claimant’s occupation] as they are found in the general economy.’”  Op. at 8.
    • “Reliance’s finding that work in cold areas was not a material duty [and the decision to deny disability benefits] are supported by substantial evidence. Reliance [relied upon] reports from two vocational review specialists who used DOT to determine Nichols’s regular occupation was that of a sanitarian.” Op. at 10.
  • “[A]ny requirement to work in the cold is specific to a subset of sanitarians who work in poultry processing plants…[and relates to a] particular position with a particular employer. It is not part of her “regular occupation” as defined by the plan and our precedent.”  Op. at 11 (emph. added).

 

Disability claimants often attack the ERISA plan’s expert medical reviewer as biased, sometimes seeking discovery in an attempt to show bias.

Here’s a new case that highlights what can happen in a de novo review case: No discovery about a medical expert allowed.

Shaikh v. Aetna Life Ins. Co., 2019 WL 1571876 (N.D. Cal. April 11, 2019)(In de novo review case, the Court denied discovery related to alleged bias of medical reviewers).

FACTS: Plaintiff Shaikh sought ERISA-governed long term disability benefits. He alleged the independent reviewer retained by Aetna was biased and sought limited discovery about the medical reviewer including: (a) total annual compensation Aetna paid the medical reviewer from 2007; (b) the number of hours per week the medical reviewer actually treats patients (rather than performs record reviews).

ISSUE: Was Aetna compelled to answer discovery about the medical reviewer?

DISTRICT COURT HELD:  NO.

  1. New evidence may be considered by a court performing de novo review only in “exceptional circumstances.” Op. at 2.
  2. “‘It makes little sense to allow broad and costly discovery when the court’s review of the merits is limited to the administrative record (except in narrow circumstances where additional evidence is necessary to conduct an adequate de novo review).’”  Op. at 2.
  3. ”[S]everal district courts in this circuit have held that the mere fact a physician receives compensation from a plan administrator for performing medical reviews is insufficient by itself to be probative of bias.” Op. at 3 (emph. added).
  4. “Permitting the requested discovery in this case is inconsistent with the limitations [the Ninth Circuit] contemplates on extra-record evidence in de novo cases.” Op. at 4.

 

Practicing law can create real headaches.

But do headaches constitute a disabling condition justifying ERISA-governed long term disability benefits?  

This new case explains the correct process in assessing “job duties” in the “Own Occupation” analysis…

Foster v. Principal Life Ins. Co., 920 F. 3d 298 (5th Circuit April 4, 2019)(Benefit denial when based on “passing references” to the claimant’s ‘own occupation’ or ‘own sedentary level occupation’ when “unaccompanied by any attempt to articulate the material duties of the appellant’s own occupation” is inadequate to sustain benefit denial).

FACTS: Foster, a “healthcare attorney,” sought ERISA-governed long term disability benefits claiming she had “chronic and intractable” migraine headaches. Her physicians opined she could not perform full-time sedentary work, yet surveillance showed her ably shopping and picking up children. Principal Life denied the claim and Foster’s appeal of the claim denial after independent reviews by a psychologist, neurologist, neuropsychologist, along with normal MRIs and EEGs, found no clinical evidence of any functional impairment to perform a sedentary job. The plan vested discretion with the administrator.

Foster sued, however, claiming Principal never evaluated whether she could perform the specific duties of a healthcare attorney, “e.g., meeting deadlines, handling stress…prolonged computer use…and [the] intellectual challenges of handling complex situations.”

DISTRICT COURT HELD: Principal did not abuse its discretion in denying long term disability benefits.

ISSUE: Whether Principal failed to analyze Foster’s disabling condition in light of her actual job duties as a healthcare attorney?

FIFTH CIRCUIT AFFIRMS:

  1. “[A]n ERISA plan administrator abuses its discretion by denying benefits under an ‘Own Occupation” clause based on reports couched only in terms of a claimant’s ability to work “a full time sedentary position.” Denial of benefits, when based on “passing references” in medical reviews to the appellant’s ‘own occupation’ or ‘own sedentary level occupation’ when “unaccompanied by any attempt to articulate the material duties of the appellant’s own occupation” is inadequate to sustain benefit denial.  Op. at 10 (Citing cases from the 1st, 2nd, 3rd, 5th, and 6th circuits).  
  2.  [T]here is substantial evidence showing that at least one of the [independent reviewing doctors] considered Foster’s disability in light of the specific duties required by her occupation as an attorney.”  Op. at 11.
  3. “Principal asked Foster for a description of her job duties and then provided to all reviewing physicians the documents she gave them.” Op. at 11.
  4. “To be sure, Foster adduced evidence of her own suggesting that her headaches rendered her unable to perform as an attorney. But that does not entitle her to prevail under the substantial evidence standard….Principal marshaled enough evidence to satisfy its burden, and Principal did not abuse its discretion on this ground. Op. at 11-12.

 

When does evidence of malingering justify denial of a long term disability claim?  It depends. A physician’s subjective opinion regarding malingering may have less weight than objective neuropsychological testing.

Key Take Away:  When the claimant’s neuropsychological testing is rendered invalid due to “failed validity tests,” that may be enough to deny the claim. It is important that the record contain evidence how the tests were conducted, and how the tests objectively measured validity.

Here’s the case of Johnston v. Prudential Ins. Co., 916 F. 3d 712 (8th Cir. February 25, 2019). 

FACTS: Johnston, a computer engineer, sought ERISA-governed long term disability benefits for cognitive impairment after brain surgery. Johnston underwent neuropsychological tests, rendered invalid because he “failed almost all of the validity tests.” Failed validity tests indicate one may be “actively attempting to perform poorly.” After Prudential denied disability, Johnston appealed. Prudential sought a second neuropsychological examination, and Johnston’s testing failed the validity tests again.

The District Court, applying discretionary review, affirmed Prudential’s denial of the disability and Johnston appealed. 

ISSUE: Whether repeat, invalid neuropsychological tests justified claim denial?

 EIGHTH CIRCUIT HELD: YES. 

  1. Prudential’s benefit denial was upheld because there was evidence Johnston was “deliberately exaggerating his symptoms, making it impossible to determine whether he had cognitive deficiencies that rendered him disabled.”  Op. at 5.
  2. With neuropsychological tests there are “multiple established ways to test validity of a neuropsychological examination.  The record showed how the tests were administered, and how these tests objectively measure validity.”  Op. at 6.

You already know that ERISA sets forth a 180-day time limit for internal administrative appeals of benefit denials.

And failure to pursue a timely internal administrative appeal can subject the claimant (in a later federal lawsuit) to the defense of failure to exhaust administrative remedies.

But can a claimant save an untimely administrative appeal by arguing the “substantial compliance doctrine”?  No.

Here’s the case of Fortier v. Hartford Life and Acc. Ins. Co., __ F. 3d __ (1st Cir., February 20, 2019)(Affirming dismissal of lawsuit due to untimely administrative appeal and failure to exhaust administrative remedies, concluding: “‘[To apply the substantial compliance doctrine to appeal deadlines] would render it effectively impossible for plan administrators to fix and enforce administrative deadlines while involving the courts incessantly in detailed, case-by-case determinations as to whether a given claimant’s failure to bring a timely appeal from a denial of benefits should be excused or not.’”)  

FACTS: Fortier sought ERISA-governed long term disability benefits claiming an infection had caused him memory problems. Fortier’s physician determined impairment resulted from a mood disorder, and Hartford granted benefits up to the 24 month mental/nervous limitation period. Fortier appealed the denial of benefits, and later sued.  The Court dismissed the lawsuit, and Fortier appealed.

ISSUE:  Does the “substantial compliance” doctrine excuse a claimant’s late appeal? 

1st Cir. HELD:

  1. “‘It seems consistent neither with the policies underlying the requirement of exhaustion of administrative remedies in ERISA cases nor with judicial economy to import into the exhaustion requirement the substantial compliance doctrine.’” Op. at 21 (quoting Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 362 (7th Cir. 2011)).
  2. “‘[To apply the substantial compliance doctrine to appeal deadlines] would render it effectively impossible for plan administrators to fix and enforce administrative deadlines while involving the courts incessantly in detailed, case-by-case determinations as to whether a given claimant’s failure to bring a timely appeal from a denial of benefits should be excused or not.’”   Id.
  3. “[T]he Supreme Court has discussed ERISA’s ‘careful balancing’ between ensuring fair and prompt enforcement of rights under a plan and the encouragement of the creation of such plans.’”  Op. at 22.
  4. “[S]tate common law notice-prejudice rules do not apply to ERISA appeals.”  Op. at 24 (Emph. added).

 

From time to time you may see ERISA benefit claimants seeking declarations from the Court regarding “future benefits.”

But there is that old rule, recently recognized again, that such claims should be dismissed because there is no “live case or controversy.”  

To highlight this point, here’s the recent case of  Peer v. Liberty Life Assurance Co.., __ Fed. Appx. __ (11th Cir. February 8, 2019)(“Absent an adverse benefits determination, there is no ripe claim before us.”)

FACTS: Peer brought a claim for ERISA-governed life insurance benefits. She sought (1) a ruling enforcing the Waiver of Premium benefit (this allows a covered person who become “Totally Disabled” while insured to remain eligible for coverage without paying premiums); and (2) a declaration as to “future eligibility of benefits—whether and how [Liberty] will handle her waiver of premium requests in the future.”

ISSUE: Can a Claimant Seek a Declaration of Future Benefits?

11th CIRCUIT COURT OF APPEALS HELD:  NO.

  1. Peer’s Waiver of Premium claim “was moot because Liberty reversed its initial adverse benefits determination and reinstated Peer’s coverage.” By doing so, “there is no further relief that the Court can award [Peer] on her claim for an award of the Waiver of Premium.”  Op. at 3.
  2. The Court denied Peer’s request to make a declaration regarding future benefits because there is no “live case or controversy.”  “Peer must first be deemed not  “Totally Disabled” and that decision must then be administratively reviewed by Liberty….  Absent an adverse benefits determination, there is no ripe claim before us.” Op. at 4-5.
  3.  The Court distinguished this case from Lamuth v. Hartford, 30 F. Supp. 3d 1036 (W.D. Wash 2014)(In Lamuth, the Claimant requested a declaration on a claim “that had been exhausted and repeatedly subject to dispute” involving application of the Pre-existing Condition Limitation). Op. at 4.