By A. Christopher Wieber, Esq. (Law Office of Mark Scherzer)
Dorris Reminder: Long-Term Disability Claimant Bears the Burden of Proof
The ERISA appeal process can be a legal minefield for the unwary claimant seeking to overturn the denial of short or long term disability benefits. For example, a claimant may draft an appeal that focuses on the claim-handling errors committed by the insurance company that denied the disability claim. If the claimant does so exclusively and, as a consequence, fails to establish all elements of the disability claim, a reviewing court may conclude that the claimant is not entitled to benefits — even despite significant insurance company mistakes and the de novo standard of review. This is precisely the holding in Dorris v. Unum Life Insurance Company, 2020 U.S. App. LEXIS 3206 (7th Cir. Feb 3, 2020), a recent decision by the Seventh Circuit Court of Appeals. The Dorris decision is a reminder that while it can be useful to highlight an insurance company’s errors, the claimant must not lose sight of the underlying burden of proof. Under the de novo standard of review, a claimant bears the burden to establish by a preponderance of the evidence that each of the elements of disability — as defined by the terms of the short or long term disability plan — have been demonstrated.
The Dorris Case
The Seventh Circuit Court of Appeals held that Ms. Dorris conclusively established that Lyme Disease prevented her from performing the very demanding duties of her prior occupation as a Company CEO/President. This was the main thrust of Ms. Dorris’s appeal, because Unum had specifically terminated her claim on the ground that she was capable of performing the duties of her regular occupation. Ms. Dorris established that as the President of her company, she worked 70-hour weeks under extremely stressful conditions and her treating physician gave the opinion that “returning to the long hours and stressful work of a president would increase Dorris’s symptoms.” As summarized by the Court, “she fought hard to prove that Unum’s explanation for its decision was wrong” and “[s]he convinced the district court that it was.” The problem was that the applicable definition of disability had two prongs, and Ms. Dorris — in demonstrating her inability to function as a Company President — addressed only the first prong. Under the second prong, she was required to show either (1) that she “cannot perform each of the material duties of any gainful occupation for which [she is] reasonably fitted by training, education, or experience,” or (2) that she is “[p]erforming at least one of the material duties of [her] regular occupation or another occupation on a part-time or full-time basis” and “[c]urrently earning at least 20% less per month than [her pre-disability income] due to that same injury or sickness.”
The Court then affirmed the district court’s determination that Ms. Dorris — so intent on attacking Unum’s basis for denying her claim under the first prong — failed to submit sufficient affirmative evidence under the second prong to satisfy either of the two alternative tests:
“[The district court] acknowledged Dorris’s point that Unum had not conducted a vocational analysis but emphasized that she, not Unum, carried the burden of proof. Dorris could have possibly met her burden with a vocational analysis or other evidence describing the demands of other occupations, the court said, but she produced nothing of the sort. Her conclusory assertions were not enough for the court to find that she met either the any occupation or 20% less options, and so it entered judgment for Unum.”
It is easy to fall into the trap of filing an appeal that simply addresses the insurance company’s mistakes on a point-by-point basis. As the Dorris decision illustrates, this may be enough to demonstrate that the insurance company’s decision was wrong or unsupported; however, it is not enough to win benefits. The claimant must independently demonstrate that every requirement for entitlement to benefits is established. If the appeal fails to address any important component of the applicable disability standard, the claim for benefits may ultimately fail, as well.
In Dorris, the claimant failed to establish her claim even though she had the relative advantage of the de novo standard of review. In many ERISA-governed disability benefit cases, the claimant must demonstrate to the Court that the insurance company’s claim denial was arbitrary and capricious. As the Second Circuit Court of Appeals has explained, “arbitrary and capricious means ‘without reason, unsupported by substantial evidence or erroneous as a matter of law,”’ and “[t]his standard is ‘highly deferential,’ and ‘the scope of judicial review is narrow.'” Roganti v. Metro. Life Ins. Co., 786 F.3d 201, 211 (2d Cir. 2015). However, Ms. Dorris was not shackled by the highly deferential arbitrary and capricious standard of review. The judicial review standard in her case was de novo, and the Seventh Circuit Court of Appeals explained that this meant she needn’t address Unum’s decision-making at all, but instead had to independently demonstrate her entitlement to benefits by a preponderance of the evidence:
“Courts and practitioners frequently say that [ERISA] provides for ‘de novo review’ of certain decisions relating to welfare plan benefits. That phrase is really a misnomer…. ERISA de novo review requires no review at all, but an independent [judicial] decision. In such a case, the plaintiff bears the burden of proving not that the plan administrator erred, but that she is entitled to the benefits she seeks.”
Dorris, 2020 U.S. App. LEXIS 3206, at *1. This is an extremely instructive description of de novo judicial review. A lax district court may erroneously lapse into assessing the reasonableness of an insurance company’s disability claim determination rather than conducting its own assessment of the claim from scratch, as it is required to do under the de novo standard of review. “[I]t is irrelevant on de novo review whether a plan administrator’s decision was principled or reasoned; the plan administrator’s reasoning (or lack thereof) is only important when a court engages in deferential [arbitrary and capricious] review.” Javery v. Lucent Tech. Inc. Long Term Disability Plan, 741 F.3d 686, 699 (6th Cir. 2014). See also, Decovich v. Anthem Life Ins. Co., 591 Fed. Appx. 567, 568 (9th Cir. 2015) (District court decision reversed because, “[a]lthough the district court correctly articulated the [de novo] standard of review, it proceeded to analyze whether the denial of Decovich’s disability claim was reasonable”); O’Hara v. Nat’l Union Fire Ins. Co., 642 F.3d 110, 117 (2d Cir. 2011) (where “the district court concluded that the plan administrator’s decision was supported by “sufficient evidence,” [i]t was essentially applying deferential rather than de novo review”). When a court conducts de novo review, it should not begin with the insurance company’s disability determination at all because any such consideration improperly sets that determination as a starting point, or comparator, when, instead, the court should be starting without any preconception of the outcome. In a properly conducted de novo review, the district court “‘stands in the shoes of the original decisionmaker,’ interprets the terms of the benefits plan, determines the proper diagnostic criteria, reviews the medical evidence, and reaches its own conclusion about whether the plaintiff has shown, by a preponderance of the evidence, that she is entitled to benefits under the plan.” McDonnell v. First Unum Life Ins. Co., 2013 U.S. Dist. LEXIS 110361, at *39 (S.D.N.Y. Aug. 5, 2013) (Internal citations omitted).
The Administrative Record Trap
The trap facing the unwary disability claimant is even more treacherous than it might at first appear. In many legal matters, an attorney is retained when informal attempts at resolution have failed and it has become necessary to file a lawsuit. Indeed, it is not uncommon for a disability claimant to file for benefits and then, in the event of a denied claim, prepare the appeal on her own. Such a claimant may believe that if she is unsuccessful in handling the insurance company’s internal claim and appeal procedures on her own, she can then retain an attorney to “fix” any legal inadequacies at the litigation stage. Little does the claimant realize that under the peculiarities of ERISA law, courts are confined to the “administrative record,” i.e., the file maintained by the insurance company during the initial claim and appeal stages (but specifically excluding any “new” documentary and testimonial evidence not previously provided to the insurance company). ERISA lawsuits do not generally involve trial proceedings, live witnesses, expert testimony, or the introduction of updated/current medical records. In other words, the claimant’s attorney in an ERISA disability benefits lawsuit is locked into the administrative record established by the sophisticated insurance company and the unwitting claimant prior to the lawsuit.
It is only natural that a claimant like Ms. Dorris, unversed in the legal intricacies of ERISA practice, thought that her main task in an appeal was to address the specific wrong arguments raised by the insurance company in its denial determination. And nothing in ERISA law or its full-and-fair-review regulations serves to disabuse a claimant of that notion. There is no requirement to include language in plan documents or denial determinations that explains (1) the claimant will bear the burden of proof on all elements of the disability definition (whether or not raised by the insurance company); (2) the claimant will face the de novo or arbitrary and capricious standard of review (and what that means), and (3) the claimant will be locked into an “administrative record” that consists solely of evidence submitted or generated during the course of the insurance company’s pre-litigation review of the disability claim. This is one of the great ironies of ERISA law. ERISA was enacted to create an internal appeal process that gives the claimant an easy, informal, and inexpensive pre-litigation procedure to achieve “full and fair review” of her claim. But the disability claimant who handles her own claim/appeal in an easy, informal and inexpensive manner may find that the legal intricacies of ERISA combine to ensure that her claim is unwinnable in a lawsuit — even though her disability is legitimate and demonstrable (at least, it would have been had she known to present all the evidence she neglected to include when she navigated the claim/appeal process without legal assistance).
Another ERISA irony is that the law’s attorney fee provision has been interpreted to permit recovery of fees only for legal services provided in connection with a lawsuit, and none for legal services provided during the claim/appeal process. Particularly for those ERISA disability claimants with limited financial resources, this discourages legal assistance at the claim/appeal stage. Those fees are sunk costs that can never be recovered — even if the claimant demonstrates that the insurance company’s adverse benefit and appeal determinations were wholly unjustified. Nonetheless, it is precisely at the claim/appeal stage that legal services may be most critical to ensure the development of an administrative record that best preserves all the claimant’s rights and best establishes her full entitlement to disability benefits under the applicable disability definition. Without a well-developed administrative record establishing the basic elements for disability, no amount of fancy legal argumentation is likely to carry the claimant’s burden in a subsequent lawsuit.
Escaping the Trap
When faced with a deficient administrative record, there are several options for adding new evidence after the final appeal decision. However, none of these options is guaranteed success. If the insurance company, in its final adverse benefit determination letter, invites new/additional information or offers a “voluntary” additional appeal, the claimant may take advantage of these supplemental proceedings to add new information to the administrative record after the final mandatory appeal decision (but before the lawsuit). This may be possible even without a formal invitation. E.g., Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 300 (5th Cir. 1999) (“[T]he administrative record consists of relevant information made available to the plan administrator prior to the complainant’s filing of a lawsuit and in a manner that gives the administrator a fair opportunity to consider it”; “If the claimant submits additional information to the administrator, … and requests the administrator to reconsider his decision, that additional information should be treated as part of the administrative record”). But there is no assurance that an invitation or voluntary appeal will be provided, and not all courts follow the Vega rule. E.g., Blair v. Metropolitan Life Ins. Co., 569 Fed. Appx. 827, 832 (11th Cir. 2014) (Affirming district court’s refusal to consider claimant’s post-appeal, pre-lawsuit submissions because “[t]he documents Blair sent to MetLife over the two years following the denial of her administrative appeal were not part of the record considered when determining whether to deny Blair’s LTD benefits”).
Another option, in de novo review cases, is to seek permission from the court to add to the record, which may be done by motion or bench trial. However, the rules permitting such additions vary by circuit and are, in general, quite narrow (and in some cases, completely unavailable). In the Second Circuit, for example, the claimant must demonstrate “good cause” under an evolving set of rules that one court recently summarized as follows:
“[T]he Second Circuit has found good cause for introducing extra-record evidence where there is a demonstrated conflict of interest and the procedures employed in arriving at the claim determination were flawed, or where the administrative record’s incompleteness prevents the court from conducting a proper review of the administrator’s decision. Likewise, district courts have admitted extra-record evidence relating to procedural issues, such as ‘the parameters of the administrative record’; whether the administrator of the plan had a conflict of interest; or whether the procedures afforded to the plaintiff were sufficient. In contrast, the Second Circuit has found that good cause did not exist where the administrator ‘followed the steps in handling [the plaintiff’s] application and appeal that it followed for any other insured,’ or ‘where an insurer gave the claimant ample time to submit additional materials and had already discussed the claimant’s case with the two treating physicians whose testimony was to be introduced….'”
Meidl v. Aetna, Inc., 346 F. Supp. 3d 223, 235 (D. Conn. 2018). One example of the stringency with which these rules can be applied is Khan v Provident Life Ins. Co., 2019 U.S. Dist. LEXIS 75180, *56-57 (W.D.N.Y. May 3, 2019), where the court found “[no] good cause to admit Dr. Carette’s Reassessment Summary as proof that Plaintiff was disabled as of June 10, 2013, because Plaintiff has not established that the document was ‘highly probative’ and was not included in the Administrative Record through no fault of his own.'” In other words, if the evidence existed at the time of the appeal and the claimant failed to include it through her own inadvertence, a court may refuse to consider it. Thus, the best case scenario for getting new evidence into the administrative record under the Second Circuit’s “good cause” standard is to (1) identify significant claim procedure irregularities or unfairness, and (2) demonstrate that the omission of the evidence from the existing administrative record is traceable to those irregularities/unfairness.
The third option that may be available is remand, a procedure in which the district court sends the disability claim back to the insurance company for further fact-finding and a new determination. Remand is commonly utilized in cases involving the arbitrary and capricious standard of review and is frequently viewed as an adjunct to the deference owed to the claim administrator in such cases: “[E]ven where we conclude a plan administrator’s finding was arbitrary and capricious, we will typically not substitute our own judgment, but rather will return the claim for reconsideration [by the claim administrator] unless we ‘conclude that there is no possible evidence that could support a denial of benefits.'” Miles v. Principal Life Ins. Co., 720 F.3d 472, 490 (2d Cir. 2013). Remand is less common in cases involving the de novo standard of review since district courts are empowered to conduct bench trials and remand is “generally less appropriate, because the court gives no deference to the administrator’s findings.” Booth v. Hartford Life & Accident Ins. Co. of Am., 2009 U.S. Dist. LEXIS 130887, *50 (D. Conn. Feb. 3, 2009). Nonetheless, remand may be appropriate, even in cases of de novo review, where “further fact-finding is necessary to determine claimant eligibility for benefits.” Javery, 741 F.3d at 699-700. It is unclear what factors, in a de novo review case, will dictate whether a court elects to conduct judicial fact-finding via a bench trial or instead remands to the insurance company to conduct the fact-finding.
It does not appear that the claimant in Dorris pursued any of the above strategies for seeking to add new evidence to the administrative record. As reported in the opinion, Ms. Dorris commenced her district court proceeding immediately after receiving the final appeal determination — so presumably she did not pursue a voluntary appeal or attempt to submit new evidence prior to filing her lawsuit. Although she sought extra-record evidence in discovery, Ms. Dorris “never offered — and the court never rejected — relevant extra-record evidence.” Moreover, she never raised any objection to the completeness of the administrative record, but proceeded as if she were satisfied with the administrative record as it stood:
Dorris appears to have believed that the lack of vocational evidence in the record favored her. She was wrong. Unum’s motion for judgment emphasized that it was her burden to prove entitlement to benefits under the plan and argued that she failed to meet that burden. If this burden was a surprise, she could have moved to reopen discovery when Unum sought judgment. She was not entitled to wait until after Unum won.
Dorris, 2020 U.S. App. LEXIS 3206, at *22. Ms. Dorris failed to pursue any of the options for adding evidence to the administrative record, and, as a consequence, the Court of Appeals found that these arguments were, in effect, waived.
As the Dorris decision makes clear, it is imperative for an attorney to assess whether there is sufficient evidence in the record to carry all elements of the applicable disability definition by a preponderance of the evidence. Where there is a clear deficiency, the attorney should seek to add new evidence by one or more of the available options: requesting a voluntary pre-lawsuit appeal; demonstrating “good cause” to add new evidence by motion or bench trial; or requesting a remand to the insurance company for further factual development. Even when confident that the evidence in the administrative record is complete on each element of disability, the attorney may still want to argue in the alternative that if the district court concludes that there is insufficient evidence to carry the claimant’s burden of proof, it should allow the claimant an opportunity to introduce extrinsic evidence to address any such deficiency.
Best Strategy: Avoid the Administrative Record Trap in the First Place
While there are legal methods — via voluntary appeal, bench trial, and remand — to add extrinsic evidence to a deficient administrative record, none of these methods are guaranteed success. The default ERISA rule is that the administrative record is limited to the evidence reviewed by the disability insurance company at the time of the final appeal determination. Any effort to supplement the record with additional evidence requires the claimant to overcome significant legal hurdles — such as demonstrating “good cause,” that the insurance carrier acted in an arbitrary and capricious manner, or that the claimant was denied full and fair review. Moreover, each method necessarily expands and extends the legal process for obtaining a final outcome — resulting in significant costs and delays. In short, entreaties to cure a deficient administrative record may be refused, but even if granted, the additional proceedings required to introduce new evidence will increase the cost and delay a final resolution.
It is better to avoid the risk, cost and delay of “fixing” a deficient administrative record after-the-fact. This is best accomplished by ensuring that the administrative record is as complete as possible in the first place, i.e., by submitting strong, comprehensive evidence of disability during the claim/appeal process. Under either standard of review, a claimant is entitled to a direct award of benefits if she has sufficiently established her disability — either by clear and convincing evidence (under the arbitrary and capricious standard of review), or by a preponderance of the evidence (under the de novo standard of review). E.g., Zervos v. Verizon, N.Y., 277 F.3d 635, 648 (2d Cir. 2002) (Under the arbitrary and capricious standard of review, benefits awarded: “[R]emand of an ERISA action seeking benefits is inappropriate ‘where the difficulty is not that the administrative record was incomplete, but that a denial of benefits based on the record was unreasonable,'” and/or where “[a]ny delay necessitated by a remand could effectively deny justice in th[e] case”); Thoma v. Fox Long Term Disability Plan, 2018 U.S. Dist. LEXIS 209077 (S.D.N.Y. Dec. 11, 2018) (On de novo review, benefits awarded: “Thoma has shown by a preponderance of the evidence that [she is] ‘unable to perform the material duties of any occupation for which . . . she is, or may reasonably become, qualified based on education, training or experience’ and ‘unable to earn 60% or more of her Indexed Earnings,'” and “[a]s a consequence, Thoma’s claim is reinstated; she is entitled to LTD Plan benefits from May 13, 2016 to the present”).
To ensure a complete administrative record, the applicable plan definition of disability should be reviewed at the outset of the claim or appeal, and the claimant (or her attorney) should be sure to submit affirmative evidence during the claim/appeal stage sufficient to demonstrate that each requirement of the disability definition is satisfied. Since the standard of review may be unclear at this stage, it is generally preferable to err on the side of submitting more evidence (rather than less) in case the claim winds up in litigation and the reviewing district court determines that the arbitrary and capricious standard of review is applicable. Under that standard of review, the claimant may need to demonstrate her entitlement to benefits by “clear and convincing evidence” and/or that “there is no possible evidence that could support a denial of benefits” if she is to obtain a direct award of benefits and avoid a remand for further factual development by the disability insurance company.
Particular attention should be given to requirements of the disability definition that are frequently overlooked. Most commonly overlooked is the “occupational” requirement. Indeed, this was the oversight in the Dorris case. In most short and long-term disability plans, disability is defined in relation to a particular occupational standard, i.e., the inability to perform the substantial and material duties of the claimant’s “own occupation,” or “her regular occupation as it is performed in the national economy,” or “any occupation for which she is qualified by education, training and experience.” The occupational standard may also include a specific wage requirement, e.g., the inability to generate income in excess of 60% of pre-disability earnings, or the inability to generate income in excess of 80% of indexed pre-disability earnings (that is, earnings adjusted to reflect inflation). To establish these elements, the claimant may need to submit a job description to document the important demands of her occupation, or job descriptions from multiple companies (or as generated from Department of Labor databases, such as the Occupational Outlook Handbook or O*NET) to document those demands in the national economy. The claimant may need to retain a vocational consultant to assess transferable skills and demonstrate the absence of alternative occupations (and/or the absence of such jobs meeting the applicable wage requirement). This was precisely the claimant’s failure of proof in Dorris: “Dorris could have possibly met her burden with a vocational analysis or other evidence describing the demands of other occupations.”
The disability claimant should also be careful to document each functional/quantitative deficit caused by a particular symptom, and to correlate that deficit to a particular job duty. There is a world of difference between, “I feel tired and can’t do my job,” and, “My MS fatigue regularly causes me to sleep late, making my attendance at work unreliable, and I routinely require daily afternoon naps, making it impossible for me to meet work deadlines.” And there is a world of difference between, “My migraine headaches cause me to miss work alot,” and, “On average, I suffer incapacitating migraine headaches 3 times a week, making work impossible on those days, and, worse, they are unpredictable, so I can’t even plan which days I will be functional.” These sorts of functional/quantitative details can be critical to establishing disability and may be proven by such evidence as the claimant’s personal statement; corroborative witness statements from co-workers, friends and family; and treating physician letters. E.g., Foust v. Lincoln Nat’l Life Ins. Co., 2019 U.S. Dist. LEXIS 164576, *9-10 (D. Utah Sept. 24, 2019) (Insurance company’s denial of “any occupation” disability benefits unreasonable where treating physician opined that claimant “would be able to sit or stand for only 15-20 minutes at a time, … could ‘occasionally’ lift 1-5 pounds, ‘infrequently’ lift 5-10 pounds, and ‘never’ lift anything greater…, would require bedrest twice a day for 30 to 60 minutes, and … would need to take a one-hour break for every two-to-three hours of work…, would be expected to have ‘lapses in concentration or memory . . . for several hours per day’ while at work, … would ‘constantly’ struggle with fine manipulation, typing, writing, and grasping small objects” and, “when asked ‘Please estimate, to the best of your ability and expertise, how many absences could be reasonably medically expected in any week,’ Dr. Dailey wrote ‘3x/week if he is lucky'”). In some cases, specialized testing may be particularly useful to establish disability even though such testing may not be particularly useful for treatment or diagnostic purposes. Consequently, such testing may not be ordered by a treating physician, and the claimant may have to affirmatively obtain the testing herself. For example, neuropsychological testing may be helpful to establish and quantify specific cognitive deficits, while a functional capacity evaluation, or “FCE,” may be useful to quantify the precise physical restrictions (on such activities as reaching, lifting, sitting, standing, etc.), associated with an orthopedic, neuromuscular, or musculoskeletal disorder.
Some disability definitions require the claimant to demonstrate that she is receiving “regular and appropriate medical care” for the disability. Failure to establish this element may lead to denial of a claim. E.g., Basaldua v. Am. Fid. Assur. Co., 2014 U.S. Dist. LEXIS 159575, *16 (E.D. Tex. Nov. 13, 2014) (where disability requires “regular care and attendance” by a physician, defined as being “attended by a Physician at least once a month or until the Physician determines You have reached a state where continuous medical care is unnecessary,” disability benefits were properly denied where claimant admittedly “was not seen by a physician once a month” and where “there is no evidence that [claimant’s treating physician] Dr. Won found continuous medical care unnecessary”). The element of “regular and appropriate medical care” is typically established through the claimant’s medical treatment records, but can be easily neglected. For example, the claimant suffering from degenerative disc disease of the lumbar spine may submit records from the treating Orthopedic Surgeon or a physician specializing in Physical Medicine and Rehabilitation/Pain Medicine, but neglect to include interim physical therapy treatment records. The claimant may view the physician opinion as most important, since that physician is likely diagnosing the condition and completing the disability forms. However, if the visits to that physician are infrequent, the PT records may be critical to establishing a course of regular, ongoing care. Psychotherapists may withhold their session notes and instead offer only a synopsis of the claimant’s mental health condition. It will be important in that synopsis to report an appropriate frequency of care. If the claimant changes residence, or switches to a new physician, it may be important to submit records from old and new doctors to ensure a complete record of care.
For the claimant pursuing a short or long term disability claim that is governed by ERISA (as most employer-sponsored disability plans are), there are significant dangers of doing so without legal guidance. One such danger is that the “administrative record” created during the initial claim and any subsequent appeal becomes locked. If a lawsuit becomes necessary, the default rule is that the court will only consider the locked administrative record, and will not consider any new evidence. This can tie the hands of the claimant’s attorney and make it difficult to achieve a successful outcome. In Dorris, the claimant submitted evidence responding to the particular defense raised by the insurance company in denying her claim, but nonetheless failed to submit evidence establishing other elements of the disability definition. As a result, the Court held that the insurance company’s claim denial was wrong, but that this was not enough to award Ms. Dorris disability benefits, since she had failed to address the additional requirements. The Dorris decision underscores that:
Chris Wieber is a New York short and long term disability benefits lawyer with nearly 30 years’ experience handling claims arising under employer-sponsored short and long term disability plans governed by ERISA (the Employee Retirement Income Security Act).