DISABILITY CLAIMS CAN BE BASED ON PAIN, FATIGUE & DIMINISHED CONCENTRATION

Under ERISA, before denying a long term disability claim, an insurance company or “plan” has “the responsibility to fully investigate” that claim. Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1199-1200 (11th Cir. 2010). However, instead of performing their responsibilities properly, many insurance companies hire and rely exclusively upon the report of non-examining, file-reviewing, physician consultants. Insurance companies typically use these consultants to deny benefits based upon the consultant’s implicit credibility determination that a Plaintiff’s subjective complaints of pain, fatigue and diminished concentration are excessive or that there is not enough medical evidence to warrant the disabling opinions of Plaintiff’s treating physicians. In these situations the Plaintiff usually explains to the insurance company that she is caught in a Catch-22 scenario – either she suffers significant pain and cannot work or takes pain medication which caused significant sedation and fatigue that interferes with cognition and precludes employment because it makes her unreliable at work and chronically absent from work. Fortunately, there is good news regarding case law in this area. The recent cases of Shaw v. AT&T Umbrella Benefits Plan No. 1, 795 F.3d 538 (6th Cir. 2015), Godmar v. Hewlett-Packard Company, 631 Fed. App’x 397 (6th Cir. 2015), and Zuke v. Metro. Life Ins. Co., 2016 WL 1258220 (6th Cir. 2016), have revived the decade old case ofSmith v. Continental Casualty Co., 450 F.3d 253 (6th Cir. 2006), which collectively hold that in cases where a Plaintiff’s subjective complaints are the primary disabling impairment, an insurance company’s credibility findings concerning those complaints without the benefit of a physical exam is arbitrary and capricious even under an objective evidence standard. Significantly, these 6th Circuit cases are finding footholds in other jurisdictions and this is exciting because they really help the vast majority of long term disability Plaintiffs who suffer from chronic pain, fatigue and lapses in concentration from a variety of medical conditions.