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Defense Litigation Strategies

Defense Strategies in ERISA

In litigation over long-term disability (LTD) claims governed under ERISA, defense attorneys employ trial strategies that include the following. Understanding them and being prepared for them is essential to a successful plaintiff's outcome.

1.)        Establish the “Ground Rules”

            a.)        De Novo Standard of Review

In accordance with California Insurance Code §10110.6, which since 2012 has prohibited discretionary clauses in long-term disability plans, and pursuant to Orzechowski v. Boeing Co. Non-Union LTD Plan, No. 14-55919, 856 F.3d 686 (9th Cir. 2017), which held that Section 10110.6 applied to ERISA-governed disability plans, it is useful early on to have defense counsel jointly stipulate to de novo review.

 De novo is a non-deferential standard of review, meaning the court evaluates the claim strictly on the merits, accords the plan no factual or legal deference, and does not defer to the insurer's previous finding. Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir. 1999).

Be aware, however, that while Insurance Code §10110.6 applies to insured plans, under Williby v. Aetna Life Ins. Co., 867 F.3d 1129, 1133 (9th Cir. 2017), it may not be applicable to self-funded plans.

In jurisdictions that still allow discretionary clauses in long-term disability plans, the standard of review is the arbitrary and capricious or abuse of discretion standard, unless the plan fails to give unambiguous discretionary authority as a matter of contractual agreement. Firestone Tire & Rubber Co. v. Bruch, 489 U. S. 101.

            b.)        Preponderance Evidentiary Standard of Proof

Under de novo review, the standard of proof is a preponderance of the evidence standard, which requires credible evidence that shows a greater than fifty percent chance that Plaintiff's claims are true on all of the evidence, regardless of which party produced it. [See: 9th Cir Jury Instr. § 1.3]; Muniz v. Amec Constr. Mgmt., 623 F.3d 1290, 1294 (9th Cir. 2010).

Under an abuse of discretion standard, a lack of substantial evidence indicates an arbitrary and capricious decision. Caldwell, 287 F.3d, at 1282. Therefore, plaintiff must show that a benefit denial decision is an abuse of discretion because it is not supported by "substantial evidence," which is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Adamson v. Unum Life Ins. Co. of America, 455 F.3d 1209, 1212 (10th Cir. 2006).

This is clearly a more difficult burden for plaintiff to carry because the defense need only show that an insurer had at least one “reasonable” basis upon which to deny the claim. That could be the opinion of its own in-house consultants. The preponderance of evidence standard is a more difficult burden for the defense to carry than the substantial evidence standard.

Defense counsel may argue that plaintiff should be denied benefits because plaintiff failed to meet its burden of proof. The Ninth Circuit has held that when a court reviews a plan administrator's decision under the de novo standard of review, the burden of proof remains with the claimant. Muniz v. Amec. Constr. Mgmt., 623 F.3d 1290 (9th Cir. 2010).  Accordingly, plaintiff must marshal its evidence to prove disability by a preponderance of the evidence.

2.)        Problems Arising Out of the Policy Definition of “Disability”     

            a.)        “Own” and “Any” Occupational Disability

Many ERISA-governed LTD policies contain a “split definition” of disability, that ... disabled means ... you are limited from performing the material and substantial duties of your Regular Occupation ... ¶ After 24 months, disabled means ... unable to perform the duties of any gainful occupation.

That allows defense counsel to argue that when a disability claim has been denied on appeal by the insurer, it was denied only under the “own occupational” standard and that the insurer never had an opportunity to evaluate plaintiff's disability under the “any occupational” standard. The “any occupational” standard is therefore an unexhausted claim, which requires administrative remand back to the insurer.

While courts often remand an unexhausted “any occupation” determination to the insurer, Nagy v. Grp. LTD Plan for Employees of Oracle Am., Inc., 183 F. Supp. 1015, 1032 (N.D. Cal. 2016), aff'd, 739 F. App'x (9th CIr. 2018), when disability is well supported by the record or when exhaustion would be futile, a court has jurisdiction and discretion to excuse non-exhaustion and award “any occupational” benefits to plaintiff, even when the insurer did  not decide eligibility for benefits under the “any occupation” definition of disability in the first instance. Reetz, 294 F. Supp. 3d, at 1084.

An unexhausted claim for benefits under the “any gainful occupation” standard does not deprive the court of its jurisdiction. Non-exhaustion is an affirmative defense and not a jurisdictional bar, and the court retains its jurisdiction and its discretion to excuse non-exhaustion when plaintiff makes a “clear and positive” showing that remand would be futile.  Paese v. Hartford Life and Acc. Ins. Co., 449 F.3d 435. 443 (2nd Cir. 2006).

Plaintiff's counsel is well advised to argue for benefits under both the own and any occupational definitions in the policy right at the outset. That means working with plaintiff's treating physicians and documenting in the medical records (if appropriate) that your client is unable to perform not just his/her own occupation, but even a sedentary occupation  … because that is what it will usually take to meet the any occupational standard.

            b.)        Occupation as Performed in the National Economy

Further, many policies will provide that a plaintiff's Regular (or Usual) Occupation means … your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer at a specific location.

This was the issue in Nichols v. Reliance Standard Life Ins. Co., 924 F.3d 802, 808 (5th Cir. 2019). The Nichols court, using the “national economy” occupational definition, permitted the defense to deny disability benefits by re-classifying the work of an inspector in a poultry processing plant as that of a “sanitarian,” which was quite different from the occupation plaintiff actually performed. The difference was that the description of “sanitarian” in the Department of Labor's Dictionary of Occupational Titles (“DOT”) did not include working at very cold temperatures, which is what plaintiff's actual job required, and which Ms. Nichols was unable to do because of “Raynaud's Disease” (an autoimmune circulatory disorder that precludes work in a cold environment0.  

If faced with his kind of problem, it may be useful for plaintiff to obtain a vocational consultation report. In general, plaintiff should not be required to provide vocational evidence. Tate v. Long Term Disability Plan for Salaried Emps. of Champion Int'l Corp. No. 506, 545 F.3d 561, 562 (7th Cir. 2008). However, sometimes it may be prudent to do so.

3.)        Full and Fair Review … Be Careful What You Wish For

Insurers under ERISA are required by federal statutory and case law to provide a “full and fair review” of disability claims, but what does a “full and fair review” require, and when is a claim review not “full and fair?”

On April 1, 2018, amended disability claims procedure regulations from the Department of Labor (DOL) became effective for ERISA disability plans that clarify this question. 29 C.F.R. § 2560.503-1.  They include the following:

Impartiality. Claims and appeals must be determined in a manner to assure independence and impartiality of the persons making the benefit decisions and their consultants.

New Evidence. On appeal of an adverse benefit determination, claimants must be given timely notice of any new evidence “considered, relied upon, or generated” by the entity making the benefit determination and an opportunity to respond before a final determination is rendered.

Thorough Discussion of Grounds for Denying Claim. Adverse-benefit determinations must contain a substantive discussion for a decision, including the basis for disagreeing with the views of health care professionals, vocational professionals, and with disability benefit determinations by the Social Security Administration.

Limitations Periods. Adverse-benefit determination letters must inform the claimant of the limitation periods on filing administrative appeals, and in the case of an adverse determination on review, of the calendar date on which any applicable contractual limitations period for filing a lawsuit expires.

With respect to “new evidence,” a “full and fair review” guaranteed by ERISA requires that the insurer provide the plaintiff an opportunity to respond to new evidence prior to issuing an adverse benefits determination on appeal.  Hughes v. Hartford Life & Accident Insurance Company, 368 F. Supp. 3d 386 (D. Conn. 2019).

However, if plaintiff prevails in his/her argument that the insurer failed to provide a “full and fair review” of plaintiff's disability claim, the court's remedy may be an administrative remand to the insurer (unless remand would be futile), which may not always be in the plaintiff's interest … considering the additional delay and expense that this would involve.  And, there is little reason to believe that giving an insurer a “second bite at the apple” will result in a different outcome.

In jurisdictions where an abuse of discretion is the standard, an insurer's violations of the Department of Labor's (DOL) claim regulations may warrant de novo review, with loss of deference. Halo v. Yale Health Plan, 819 F.3d 42 (2nd Cir. 2016) (requiring strict compliance, not substantial compliance, with DOL claim regulations); Salisbury v. Prudential Ins. Co. of America, 238 F. Supp. 3d 444 (S.D.N.Y. 2017).

The court may also award attorney's fees under §1132(g)(1) after a remand, even when plaintiff has not obtained an “enforceable judgment on the merits” and is not a “prevailing party,” as long as the fee-claimant has achieved “some degree of success on the merits.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010).

4.)        Shifting the Narrative to Mental/Psychological Disorders

The defense not uncommonly tries to artfully promote an agenda that shifts attention away from a physical disability to a mental/psychological disability because in most ERISA long-term disability (LTD) policies, there is usually a Mental Illness Limitation that limits payment of disability benefits to no more than 2 years.

In Gunn v. Reliance Standard Life Ins. Co., 399 F. Appx 147, 151 (9th Cir. 2010), the court pointed out that every federal circuit that has considered the meaning of a mental illness limitations clause, has read it to exclude coverage only when the claimant's physical disability was insufficient to, on its own, render him totally disabled. (“The language of the mental illness exclusion [required applicant] to show that he was totally disabled solely due to his physical condition ... without taking into account the disabling effects of any mental or nervous disorder.”)

Therefore, even if plaintiff's depression, anxiety, or stress contributed to his/her disability, if plaintiff's physical impairments were, on their own, entirely enough to render him/her totally disabled, then a 2-year mental illness limitations clause for psychiatric or psychological symptoms would not apply to limit benefits. Under Gunn, behavioral health conditions are not relevant if at no time were they a “but for” cause of disability.

5.)        Household Chores and Activities of Daily Living     

A frequent defense argument is that if plaintiff can perform household chores or activities of daily living (ADL's), then plaintiff can perform work activities. However, a plaintiff who is unable to work need not be bedridden or “inert,” and at his/her own pace, can push themselves to perform some painful activity such as household chores and ADL's, but with difficulty. Hawkins v. First Union Corp., 326 F.3d 914 (7th Cir. 2003) (“Hawkins' unfortunate choice in life is between succumbing to his pain ... and becoming inert ... (or) pushing himself to engage in a certain amount of painful ... activity ... (this) does not prove that he is not disabled.”); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001).

6.)        Standing Up and Shifting Positions

A common defense strategy is to argue that a plaintiff suffering from back pain can perform a sedentary occupation if allowed to change positions, stand, stretch, and briefly walk around the office every (e.g.) 30 minutes because such accommodations enable plaintiff to work a full 8-hour day.  However, plaintiff's orthopedist or pain specialist may be able to document that sitting, walking, or standing-up may aggravate plaintiff's pain – not improve it – and that even with these accommodations, plaintiff is unable to work an 8-hour job.

In fact, plaintiff's 30-minute interval sitting limitation may further erode plaintiff's ability to perform her own or any occupation in the national economy. Reetz v. Hartford Life & Acc. Ins. Co., 294 F. Supp. 3d 1068, 1084 (W.D. Wash. 2018.

7.)        Paper Review of the Records    

An insurer often performs a paper review of the medical records (often for reasons of cost) instead of conducting an in-person examination. While paper reviews are not inherently objectionable, Siegel v. Conn. Gen. Life Ins. Co., 702 F. 3d 1044 (8th Cir. 2012), an insurer's decision not to perform an independent medical examination (IME), which the plan or policy usually allows, “raise[s] questions about the thoroughness and accuracy” of its benefits determination. Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 630, 634 (9th Cir. 2009).

This is especially the case when evaluating a subjective complaint, such as disabling pain or chronic fatigue, or when assessing the credibility of plaintiff's self-report of subjective symptoms. Smith v. Continental Cas. Co., 450 F.3d 255, 263-264 (6th Cir. 2006) (credibility findings concerning subjective complaints without a physical exam was improper); Shaw v. AT&T Umbrella Plan 1, 795 F.3d 538, 550 (6th Cir. 2015) (the plan improperly “second-guessed [Shaw's] treating physicians and made “credibility determinations,” without a physical examination); Schramm v. CNA Fin. Corp. Insured Group Benefits Program, 718 F. Supp. 2d 1151, 1164  (N.D. Cal. 2010) (“The court gives little weight to the opinions of (doctors) ... who are not examining plaintiff in person.”).

8.)        Unqualified Medical Reviewer

Insurers may rely on a medical report from a “family and occupational medicine” in-house physician-reviewer, when there was no evidence in the record that the reviewer has “appropriate training and experience in the field of medicine involved in the medical judgment,” 29 C.F.R. § 2560.503-l(h)(3),3(iii); Hamma v. Intel Corp., 377 Fed. Appx. 674, 676 (9th Cir. 2010) (a medical reviewer must have “... appropriate training and experience in the field of medicine involved in the medical judgment.”); Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534, 535 (9th Cir. 1990).

Plaintiff's counsel should be alert that, in many cases, an insurer's benefit denial decision may be the result of its “wholesale embrace” of a single flawed medical report from its in-house unqualified medical reviewer, and it may also be based on clearly erroneous findings of fact. McCauley v. First Unum Life Ins. Co., 551 F.3d 126 (2nd Cir. 2008) (“This kind of wholesale embrace of one medical report ... was ... indicative of an ... abuse of discretion.”); Taft v. Equitable Life Assur. Soc., 9 F.3d 1469, 1472-1473 (9th Cir. 1993) (“an administrator also abuses its discretion if it relies on clearly erroneous findings of fact in making benefit determinations.”).

An insurer's medical and nursing reviewers may all be in-house employees, and none may be in the “field of medicine involved in the medical judgment.”  "[W]hen a plan administrator's explanation is based on the work of a doctor in its employ, [courts] must view the explanation with some skepticism." Moon v. Unum Provident Corp., 405 F.3d 373, 381-82 (6th Cir. 2005). "The Supreme Court has acknowledged “that physicians repeatedly retained by benefits plans may have an incentive to make a finding of `not disabled' in order to save their employers money and to preserve their own consulting arrangements.'" Black & Decker Disability Plan v. Nord, 338 U.S. 822, 834 (2003).

9.)        Level of Treatment Not Aggressive Enough

A common defense argument is that the level of treatment sought out by plaintiff from his/her treatment providers was not “aggressive” enough (e.g., surgery), so that plaintiff's symptoms could not be as severe as plaintiff contends.

However, invasive procedures can have serious complications and do not have a “guaranteed” outcome. The risks may outweigh the benefits. A plaintiff who withholds consent to invasive treatments is not therefore unreasonable or noncompliant, and plaintiff has a right to try conservative treatments without an inference that the “level of treatment” is inconsistent with the “severe level of plaintiff's impairment.”

Every human being of adult years and of sound mind has a right to determine what shall be done with his body.” Schloendorff v. Society of New York Hospital, 105 N.E. 92 (N.Y. 1914).  Moreover, disability policies generally do not require plaintiff to undergo invasive treatments, such as surgery, as a condition of eligibility to receive benefits. Shaw v. AT&T Umbrella Plan 1, 795 F.3d 538 (9th Cir. 2015).

Plaintiff should urge the court to reject the argument that plaintiff's pain symptoms are not credible because plaintiff elected treatment that was not “aggressive” enough for the insurer.  Shaw v. AT&T Umbrella Plan 1, 795 F.3d 538, 550 (9th Cir. 2015).

10.)      Radiographic/Imaging Findings Not Significant

Similarly, the defense may argue that plaintiff's x-ray or MRI findings are not “severe” enough to cause the degree of disabling pain complained of by plaintiff. This issue arises when the radiographic findings are described as “mild” to “moderate.” Plaintiff can argue that pain is a perception and that in accordance with Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996), a “claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.”

A common defense tactic is to describe plaintiff's radiographic and imaging findings as “age-related,” even when neither plaintiff's treating doctors nor the radiologists who interpreted the radiographic findings ever referred to them as “age related.” The term “age related” refers to a normal part of the aging process and what you can expect as you grow older, and not to a disease process. For example, while there are some normal age-related changes ... in a person's memory and thinking, dementia or severe memory loss (as in dementia) ... is not part of the normal aging process.”  [Ref: Website for Centers for Disease Control and Prevention (CDC)]

11.)      Plaintiff's Complaints at “Face Value”

The defense may argue that plaintiff's treating doctors uncritically parroted plaintiff's subjective complaints, accepting them at “face value.” However, Fair v. Bowen, 885 F.2d 597 (9th Cir. 1989) requires “… objective medical evidence ... to determine whether there is evidence of actual disability.”  This is true no matter how credible the plaintiff appears to be. Standing alone, without objective medical corroboration, a self-report of plaintiff's disabling symptoms is not enough.

Plaintiff must argue that plaintiff's treating doctors endorsed plaintiff's self-report of symptoms only after examining plaintiff, reviewing objective laboratory, MRI ,and x-ray findings, and after monitoring and reevaluating plaintiff's condition in follow-up office visits.

If dealing with chronic pain and its disabling effects, an “uncritical acceptance” of plaintiff's pain complaints would also be inconsistent with a doctor's obligations under the federal Controlled Substances Act (“CSA”), which allows physicians to prescribe controlled substances “only for a legitimate medical purpose.”  Treating doctors would be in violation of the CSA if they uncritically took a plaintiff's complaints at “face value” and prescribed controlled substances without confirming to the best of their ability that a plaintiff's subjective symptoms and resultant disability were “legitimate.” [21 U.S.C § 812. - Controlled Substances Act (“CSA”)]

Fair also points out that “pain cannot be objectively verified or measured.” While the “physical condition causing the pain” can be objectively ascertained  (e.g. MRI and x-ray findings), the very existence of pain or its degree is a completely subjective phenomenon,” ... (but) ... without doubt, pain is entirely “capable of precluding a claimant from working.” Id., at 601-602, 606.

12.)      Credibility of Plaintiff's Treating Physicians

The defense frequently attacks plaintiff's credibility and the disability opinions of plaintiff's treating physicians. The attack on credibility may be direct or implicit. For example, by rejecting plaintiff's self-report of subjective symptoms such as disabling pain or chronic fatigue, the defense is “implicitly rejecting [plaintiff's] credibility based solely on a paper review ... and without explaining why [plaintiff's] credibility was lacking ...” Demer v. IBM Corp. LTD Plan, 835 F.3d 893 (9th Cir. 2016).

If plaintiff has a long history of hard work, having worked continuously at her job for many years, this will help to support her credibility.

An insurer is required to give adequate attention to plaintiff's subjective complaints, assign weight to them, and give specific reasons to discounting them. Miles v. Principal Life Ins. Co., 831 F. Supp. 2d 767 (S.D.N.Y. 2011). Credible subjective evidence, even if it is self-reported and arguably self-serving, cannot be discounted. Krupp v. Liberty Life Assurance Co. of Boston, 936 Fed. Supp. 2d 908, 917 (N.D. Ill. 2013). 

Further, an insurer who could have had its medical reviewer perform an IME that would have better evaluated plaintiff's subjective complaints and plaintiff's credibility in reporting them, cannot dispute the findings of physicians who actually examined plaintiff, independently evaluated plaintiff's complaints, assessed plaintiff's credibility, and found plaintiff to be credible. An insurer who avoids an IME must suffer the consequences. Salomaa v. Honda Long Term Disability Plan, 637 F. 3d 674-675 (9th Cir. 2011).

13.)      Four-Hour Sitting Limitation: a "Bright-Line" Test

If there is evidence that shows plaintiff suffers from a 4-hour sitting limitation, then arguably plaintiff is unable to perform even a “sedentary” job that requires sitting “most of the time,” which may be tantamount to “any occupational” disability .In  Armani, 840 F.3d, at 1163-1164, the Ninth Circuit unequivocally held that an employee “who cannot sit for more than four hours in an 8-hour work-day cannot perform ‘sedentary work' that requires sitting ‘most of the time.'” Robertson v. Standard Ins. Co., 139 F. Supp. 3d 1190, 1209 (D. Or. 2015) (“... a four-hour sitting tolerance is insufficient to render one capable of performing sedentary work.”)]

Under many LTD policies, an insurer's “any gainful occupation” standard is often very similar to Step 5 in the Social Security Administration's (SSA) 5-Step Sequential Evaluation Process for Disability Claims, which determines whether a claimant, given her disability, can perform “sedentary” work in the national economy considering age, education and work experience, and if a claimant is determined to be “less than sedentary,” this means the claimant is disabled from “any gainful occupation” and entitled to benefits. 42 U.S.C. 423(d)(1)(A); C.F.R. § 404.1520.

While the Armani court stopped short of finding strict equivalence between the SSA's and an ERISA-insurer's definition of “sedentary,” it adopted and incorporated SSA's Ruling 83-10 that a person in a sedentary occupation generally sits 6 hours a day. Further, it deemed  the district court “erroneous” in holding that “the federal criteria for Social Security claims are not transferable to ERISA cases” and in rejecting the SSA's definition of “sedentary”  simply because it was drawn from a “Social Security context.” Armani, 840 F.3d, at 1163.

While courts have recognized that SSA and ERISA claims are different, plaintiff's inability to perform sedentary work, as defined by the SSA, reasonably implies disability from “any gainful occupation” under the policy (and administrative remand to the insurer should not be required.)

14.)      Administrative Remand Not Required

While courts may remand an unexhausted “any occupation” determination to the insurer, Nagy v. Grp. LTD Plan for Employees of Oracle Am., Inc., 183 F. Supp. 1015, 1032 (N.D. Cal. 2016), aff'd, 739 F. App'x (9th CIr. 2018), when disability is well supported by the record or when exhaustion would be futile, a court has discretion to excuse non-exhaustion and award “any occupational” benefits even though the insurer did not decide eligibility for benefits under the “any occupation” definition of disability in the first instance. Reetz, 294 F. Supp. 3d, at 1084.

Where the policy contains a “split definition” of disability: for the first 24 months - “Regular Occupation in the national economy,” and after 24 months - “any gainful occupation,” an unexhausted claim for benefits under the “any gainful occupation” standard does not deprive the court of its jurisdiction. Non-exhaustion is an affirmative defense and not a jurisdictional bar, and the court retains its jurisdiction and its discretion to excuse non-exhaustion, when plaintiff makes a “clear and positive” showing that remand would be futile.  Paese v. Hartford Life and Acc. Ins. Co., 449 F.3d 435. 443 (2nd Cir. 2006).

Remand is also not required if there are grounds for estoppel and waiver. For example, when plaintiff has argued for “any occupational” disability in addition to “own occupational” disability. If an insurer was unwilling to consider “any occupational” disability, it was required to explicitly communicate that fact to plaintiff, and if the insurer needed additional or “new” evidence in the form of an IME or FCE, it should have said so, rather than passing on its opportunity to do so. Paese, 449 F.3d, at 443.

Remand may also be unnecessary if plaintiff's “any occupational” disability claim is based on a degenerative condition that is expected to progress, or at least continue indefinitely, and, to a medical certainty, plaintiff will remain continually disabled after the transition from “own” to “any” occupational disability, after the court renders its judgment in this matter, and for the foreseeable future.

Finally, remand is improper when the evidence shows by a preponderance that an insurer's termination of benefits was contrary to the facts in the first instance and would be wrong and improper on any ground. When there is no “new” evidence that could produce a reasonable conclusion permitting a non-arbitrary denial of plaintiff's claim, remand is not required. Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1288-89 (10th Cir. 2002) (citing Weaver v. Phoenix Home Life Mut. Ins. Co., 990 F.2d 154, 159 (4th Cir.1993) - explaining that remand is unnecessary when the evidence clearly shows it would have been unreasonable for the plan administrator to deny benefits on any ground.)

15.)      The Peer-to-Peer Telephone Call

It is not uncommon for an insurer's medical reviewer to call one or more of plaintiff's treating physicians to “clarify” their disability findings.  During these telephone encounters, the insurer's medical reviewer may “suggest” (spoon feed) certain language to the treating doctor to try to get the treating doctor to agree with the medical reviewer's interpretation of the findings. The reviewer may offer to pay for the treating doctor's time and ask the treating doctor to sign a written “summary” of their conversation.

While the treating doctor has no legal obligation to speak with an insurer's medical reviewer (and many doctors do not), and while a treating physician's lack of response could be due to inadvertence or inattention because of other pressing demands in a physician's schedule, the defense may argue that under Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 878 (9th Cir. 2004) a failure to respond may “undermine” (i.e. make it less reliable) the treating physician's disability opinion.

In Jordan, the treating physician's disability statement was conclusory and unsupported because it failed to provide a “logical bridge” between the diagnosis and the conclusion of disability. Therefore, the court held that the insurer's request for a narrative report (not a phone call) from a treating physician to explain how the diagnosis of fibromyalgia caused plaintiff to be unable to work was quite reasonable. The court characterized the treating physician's disability opinion as “undermined” because it rested solely on the authority of the individual making it (ipse dixit - meaning “he said himself”) rather than on an explanation of why the illness prevented Ms. Jordan from performing her work as a secretary.

16.)      The Ad Hominem “Hired Gun” Attack

When the defense has no legitimate means by which to rebut or refute a treating doctor's disability findings, it may resort to an unwarranted ad hominem attack on that doctor's credibility by calling that doctor “a hired gun.” The defense may contend that the treating doctor did not offer any real treatment or prescribe any medications but was there only to render a disability opinion. The defense may trivialize the treating doctor's examination findings or dismiss the treating doctor's disability opinion as “conclusory” and accuse plaintiff's treating doctor as having uncritically accepted plaintiff's complaints at “face value.”

Therefore, in rendering a disability opinion, plaintiff should engage a treating doctor who is actually providing diagnosis and treatment in order to avoid this type of credibility attack.

17.)      Inconsistent Findings by Plaintiff's Treating Doctors

It is not unexpected that there may be inconsistencies in the documentation of physical findings between treating doctors. The defense often tries to use that inconsistency to argue lack of credibility. In some cases, there are new findings that previous examining doctors may not have found on earlier examinations due to the degenerative nature of plaintiff's condition (e.g., lumbar spinal stenosis) and its progressive worsening. In other cases, some examining doctors have been more thorough than others. There may also be inconsistencies in documentation because of computerized electronic health records (“EHR”).

If there are inconsistencies in the medical records, it is important to explain these inconsistencies whenever possible to preserve credibility.

The Health Insurance Portability and Accountability Act (“HIPAA”), under 45 C.F.R. § 164.524, provides to patients the right to access their medical records, and under 45 C.F.R. § 164.526, to request an amendment to their medical records, which a physician can allow or not allow, in accordance with his/her discretion. This provision enables patients to correct errors and improve the accuracy of their medical records, which has become an issue with electronic health records (“EHR”) because they are typically “canned” and may fail to capture relevant information.

18.)      Favorable Social Security Disability Determination

The defense may argue that there is no evidence in the record that plaintiff has been awarded SSDI benefits. However, after a fully favorable award of benefits, the defense may then argue that the SSDI award is not binding or even relevant.

While an SSA award is not binding  [Madden v. ITT Long Term Disability Plan, 914 F.2d 1279, 1285 (9th Cir. 1990)], courts generally agree that SSDI awards are relevant and should be “considered” in a long-term disability claim analysis under ERISA. Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623 (9th Cir. 2009).

An SSDI award may come after the administrative record has been closed, making the SSDI award "new evidence (which) may be considered ... to enable the full exercise of informed and independent judgment." Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 943 (9th Cir. 1995).

Plaintiff may wish to augment the administrative record by filing an Application for Judicial Notice to request the court to consider a Fully Favorable SSDI award under appropriate circumstances.

It is not uncommon for the defense to ignore in their argument that as of January 2017, the SSA no longer “gives deference to the opinion of the claimant's treating physician” (the “Treating Physician Rule”). See: 20 C.F.R. § 404.1520 … leaving defense counsel vulnerable to the observation that either defense counsel has not kept up with the law, or he/she deliberately misquoted it.

19.)      Plaintiff's Vocational Consultant's Report

Although the general rule is that the administrative record “furnishes the primary basis for review,” Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999), additional “extrinsic” evidence may be allowed under certain circumstances to conduct an adequate de novo review. As noted, plaintiff may seek to augment the record with an SSDI award after the administrative record has been closed. Another circumstance is when the credibility of a physician's opinion is placed at issue, as when defense counsel calls plaintiff's treating physician “a hired gun.” Thomas v. Oregon Fruit Products Co., 228 F.3d 991, 997 (9th Cir. 2000). [See also: Jewell v. LINA, 508 F.3d 1303, 1309 (10th Cir. 2007)]. 

In a Seventh Circuit opinion, Dorris v. Unum Life Ins. Co. of America, 949 F.3d 297 (7th Cir, 2020), the court observed that because “the plaintiff is the one who is obligated to prove she is entitled to benefits, any gaps in the record cut against her claim” (Cheney v. Standard Ins. Co., 831 F.3d 445, 451 (7th Cir. 2016)), and she should be permitted to “patch these gaps before the court reaches final judgment.” The Dorris court acknowledged that her treating physician's disability opinion “could have carried Dorris's burden” of proving entitlement to benefits under the “any occupation” prong of her disability policy, the district court somewhat unexpectedly found that factually it did not, and the appellate court felt it had little choice but to reluctantly affirm on “clear-error review.”

A defense attack (“just a hired gun”) on the credibility of plaintiff's treating physician and his/her disability opinion, if believed, could give rise to a potential “gap” in the record that plaintiff should be permitted to patch before the Court reaches its final judgment.

One way to “patch” this potential gap in the record is for plaintiff to obtain a vocational consultative report and request the court to take judicial notice of it after the administrative record has been closed. Of course, even better is to get a vocational report before the record is closed.

20.)      Distorting the Facts

In their argument, defense counsel may try to distort the facts and mislead the court by artfully withholding essential details. This creates an impression of truth, but it is misleading. Defense counsel may recite a litany of true facts, but selectively omit other facts essential to knowing the “whole story.”

This tactic is sometimes employed to shift the focus away from an organic disorder to a mental/nervous disorder. Misrepresentation by half-truths and by omission is a subtle form of deception that must be identified and corrected when it occurs.


These are some of the more common defense strategies you may encounter. Being forewarned is being forearmed.

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