LTD and ERISA Lawyers: Riverside, Orange & San Bernardino Counties
Objective v. Subjective Evidence
The law dictionary defines “objective” evidence as “evidence that is not subject to bias and is quantifiable and able to be independently confirmed and verified by using analytical or other tools.” Simply put, objective evidence is based on facts and is the kind of evidence that can be independently examined, evaluated, and verified.
“Subjective” evidence, on the other hand, is evidence that is in the form of an opinion or self-report that cannot be independently examined, evaluated, or verified, but must be either accepted on faith, or rejected.
Insurers and judges typically like to see, and may require, objective evidence to support a disability claim before they award benefits. That's true for both long-term disability (LTD) claims under Social Security (SSDI), and for employer-provided group disability plans (ERISA).
For example, let us say you are applying for LTD benefits to the Social Security Administration (SSA) and/or to your group-disability plan (ERISA), because you are unable to work as a result of severe back pain (“subjective”). You report the back-pain symptoms to your doctor (“self-report”), and he/she orders an MRI of your lumbar spine. But your MRI (“objective”) is normal or shows minimal degenerative findings. In other words, the objective findings on the MRI are not severe enough to be consistent with the amount of back pain you are having. Without objective evidence that supports your subjective symptoms, an insurer or a judge may deny your disability claim and refuse to award benefits.
Many long-term ERISA disability policies explicitly require objective evidence to support an LTD claim. A long-term disability policy, for example, may say that an insurer will not pay benefits for “your subjective complaints to a physician which cannot be diagnosed using tests, procedures, or clinical examinations typically accepted in the practice of medicine.”
Does the Policy Explicitly Require Objective Evidence?
Not all LTD policies explicitly require objective evidence. It is important to check your policy to see if it does. If not, then an insurer cannot reject a claim for lack of objective evidence to support the claim. The court made that clear in Oliver v. Coca-Cola Co., and Broadspire Services, Inc., 506 F.3d 1316 (11th Cir. 2007), where the administrator based its benefit rejection on its contention that plaintiff failed to provide “objective evidence” of his disability. However, there was no provision in the plan that required “objective evidence” of a disability, and the court in Oliver found that the insurer's benefit denial decision was arbitrary and capricious, and set it aside.
The Social Security Administration (SSA) also requires “objective medical evidence” from an “acceptable medical source” to establish that a claimant has a medically determinable impairment.
However, there are times when there is no objective evidence, and there are only subjective symptoms which are disabling, but which cannot be supported or verified by objective evidence.
Some Subjective Symptoms Cannot be Objectively Verified
There are certain symptoms, which may be severe enough to be completely disabling, but which may not be amenable to objective verification. For example, symptoms such as pain, shortness of breath, headache, dizziness, or chronic fatigue, are subjective symptoms that patients self-report to their doctors that may not necessarily have objective findings.
In fibromyalgia, there may be severe pain or fatigue, but objective testing may be completely normal. With a migraine headache, an MRI brain scan may show nothing objectively wrong. There are subjective symptoms that, by their nature, cannot be objectively verified, even though they may be disabling.
In those instances, where there is an absence of objective evidence to support an SSDI or ERISA disability claim, the disability claim must be “supported” in other ways, most notably by a medical record that contains “extra” detailed documentation from a treating physician, such as a description of:
- how a claimant's pain (or other symptoms) impair a claimant's daily activities;
- the location, duration, frequency, and intensity of the pain (or other symptom);
- any precipitating and aggravating factors;
- the type, dosage, effectiveness, and side effects of any medication;
- treatments, other than medications, for the relief of pain (or other symptoms);
- any measures the claimant uses or has used to relieve pain (or other symptoms); and
- other factors concerning the claimant's functional limitations due to pain (or other symptoms).
When dealing with pain, fatigue, and other subjective symptoms for which objective evidence doesn't exist, an insurer cannot demand objective evidence that simply isn't there. There is a plethora of cases on that point.
In Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 674-675 (9th Cir. 2011), the Ninth Circuit held that for ERISA claims, conditioning an award on the non-existence of objective evidence that cannot exist, is arbitrary and capricious. [See also: Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F. 3d 863, 870 (9th Cir. 2008); Perryman v. Provident Life & Accident Ins. Co., 690 F. Supp.2d 917, 945-946 (D. Ariz. 2010).]
In Fair v. Bowen, 885 F.2d 597, 601-602 (9th Cir. 1989), the court held that the Social Security Administration cannot deny an SSDI claim because a beneficiary failed to provide objective evidence for a condition that “cannot be objectively verified or measured.”
In general, an insurer cannot reject an applicant's “self-report” of subjective symptoms to his doctors simply because there is no“objective” evidence, and in those instances, the doctor's medical records become “objective medical evidence” in their own right. Oliver v. Coca-Cola Co., and Broadspire Services, Inc., 506 F.3d 1316 (11th Cir. 2007) (“if evaluations by treating physicians do not constitute ‘objective medical evidence,' this court cannot think of what would ...”)
As the court held in Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003, “pain often, and in the case of fibromyalgia, cannot be detected by laboratory tests.”
Some Medical Conditions Cannot be Objectively Verified
There are certain medical conditions, such as fibromyalgia, chronic fatigue syndrome, migraine headaches, and chronic pain disorders, that cannot be objectively verified, because they have traditionally not been capable of being diagnosed by “objective” blood tests, x-rays, imaging studies, or other commonly accepted medical tests or procedures.
When dealing with medical conditions that are inherently not diagnosable by objective tests, courts have held that plan administrators may not “arbitrarily refuse to credit a claimant's reliable evidence” of these conditions, “including the opinions of a treating physician.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S. Ct. 1965, 1972, 155 L. Ed. 2d 1034 (2003).
Insurers cannot simply ignore relevant medical evidence that doesn't fit with their benefits-denial decision. Insurers may reject a treating doctor's findings and opinions if they conflict with other reliable evidence, a practice courts have upheld, but they cannot simply ignore relevant medical evidence in order to arrive at the desired conclusion. Shaw v. Conn. Gen. Life Ins. Co., 353 F.3d 1276, 1278 (11th Cir. 2003).
Objective Evidence to Verify the Disease or the Symptoms … Which is it?
Sometimes it may not be clear whether a policy requires objective evidence to support a diagnosis (e.g., fibromyalgia), symptoms (e.g., pain) arising out of the diagnosis, or the functional impairments (e.g., “less than sedentary”) resulting from the symptoms.
The Tenth Circuit addressed this question in Welch v. Unum Life Ins. Co. of America, 382 F.3d 1078 (10th Cir. 2004). In Welch, an ERISA plan placed a 24-month limitation period on eligibility for long-term disability payments, if a claim for disability was “primarily based on self-reported symptoms.” The court found that the limitations clause could not be enforced as applied by Unum, because it was ambiguous. It could reasonably be interpreted to mean that objective evidence was required to support the applicant's symptoms (pain), or to support the diagnosis of fibromyalgia itself.
Unum argued both interpretations, meaning that the claimant's pain and the diagnosis of fibromyalgia, according to Unum, were self-reported and neither the pain nor the fibromyalgia had been confirmed by an objective test.
When dealing with subjective symptoms and a diagnosis for which there are no objective tests to confirm that diagnosis, there may be understandable difficulty in proving-up the diagnosis (fibromyalgia), the symptoms (pain), and the functional restrictions (less than sedentary) to the satisfaction of an insurer or a judge.
In Hawkins v. First Union Corp., 326 F.3d 914 (7th Cir. 2003), the court attempted to resolve this issue by concluding that once a claimant has established the presence of a condition known to cause the symptoms and limitations complained of, these allegations must be credited in the absence of evidence to the contrary, such as surveillance showing much greater functional capacity than claimed.
The Difficulty in Proving Functional Restrictions
It is useful to consider how functional restrictions are verified for subjective symptoms such as pain or fatigue. There is no objective test to evaluate the severity of pain or fatigue. These symptoms are usually self-reported by the applicant to the treating physician, who then documents them in the medical records.
Since pain and fatigue are perceptions, it logically follows that no one could possibly know how much pain or fatigue the applicant is suffering; the only one that knows is the applicant.
Objective “tests,” such as functional capacity evaluations (FCE), where a 2-hour examination conducted by a physical therapist is used to “measure” an applicant's ability to maintain and sustain work over a 40-hour week, have been largely discredited. Stup v. Unum Life Ins. Co. of America, 390 F.3d 301 (4th Cir. 2004).
For subjective symptoms and in cases where the diagnosis itself is based on subjective evidence rather than on objective medical tests or procedures, careful documentation of the diagnosis, symptoms, and functional impairments in the medical records by treating doctors is necessary to help “overcome” the lack of objective evidence.