Often the most common divide between a participant claiming disability benefits and the claim administrator evaluating the claim is the weight to be given the opinion of a treating physician. Time was that a claimant argued that the administrator must defer to the treating physician, like the Social Security Administration does. That argument, at least in its basest form, has been eliminated in ERISA cases. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 1972, 155 L.Ed.2d 1034 (2003) (“courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician”).
Often the argument is now made in a more limited fashion, or couched in different language. It might be argued that the administrator should have conducted an independent medical examination (suggesting that the opinion of a doctor who lays hands on the patient necessarily is better). It might be argued that some claims are particularly inhospitable to “paper reviews,” such as claims based on a mental illness or pain. Even where the treating physician argument does not explicitly surface, there is often an undercurrent running through disability claims in which the treating physician is placed on a somewhat higher plane than a physician who is compensated by the claim administrator. There is often the unexpressed notion that treating physicians are unbiased reporters of medical facts, while the motivation of a reviewing physician might not be equally pure.
There are, however, rulings by several courts that allow those who represent administrators to shade some of the glow enveloping treating physicians.
Several courts have observed that treating physicians have their own particular biases, ingrained in the doctor-patient relationship. When you see your doctor with complaints of a symptom, you do not want her to doubt the veracity of your complaint; you want her to accept what you are saying as true, and respond accordingly, either with tests or treatment. Thus, treating physicians are pre-disposed to accept what their patients tell them, absent strong evidence that the patient either is malingering or has a mental illness that manifests itself through physical symptoms (such as a Somatoform Disorder).
One case that explicitly addressed this inherent feature of the doctor-patient relationship is Maniatty v. Unumprovident Corp., 218 F. Supp. 2d 500 (S.D.N.Y. 2002) aff’d, 62 F. App’x 413 (2d Cir. 2003), cert. denied, 540 U.S. 966 (2003). In upholding the administrative determination that a small disc herniation did not support disability due to pain, Maniatty explained that a treating physician’s acceptance of the patient’s subjective complaints carries little weight, because the physician is required to accept them: “it was not unreasonable for the administrator to conclude that the only material reason the treating physicians were reaching their diagnoses was based on their acceptance of plaintiff’s subjective complaints: an acceptance more or less required of treating physicians, but by no means required of the administrator.”
The Seventh Circuit made this same point in Leipzig v. AIG Life Ins. Co., 362 F.3d 406, 409 (7th Cir. 2004): “Most of the time, physicians accept at face value what patients tell them about their symptoms; but insurers … must consider the possibility that applicants are exaggerating in an effort to win benefits (or are sincere hypochondriacs not at serious medical risk).”
In a related point, the Second Circuit held that a claim fiduciary can reasonably decline to conduct an independent medical examination, explaining:
We share the Seventh Circuit’s concern that requiring the plan administrator to order an IME, despite the absence of objective evidence supporting the applicant’s claim for benefits, risks casting doubt upon, and inhibiting, “the commonplace practice of doctors arriving at professional opinions after reviewing medical files,” which reduces the “financial burden of conducting repetitive tests and examinations.” Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 577 (7th Cir.2006).
A recent district court decision, Veryzer v. American Intl. Life Assur. Co. of N.Y., 2012 WL 6720932 (S.D.N.Y. Dec. 27, 2012), provides helpful analysis and language to assist in keeping the pedestal under treating physicians from getting too high. Veryzer involved a claim in which the plaintiff was indisputably disabled, but where the parties disputed whether the cause was a physical or mental illness.
Veryzer alleged that he suffered cognitive problems due to mercury introduced through hepatitis vaccinations. American International Life (AIL), agreed that Veryzer had disabling cognitive problems, but found insufficient evidence of a physical cause. What makes this case particularly interesting is that Veryzer also made a claim before the “Vaccine Court” – a panel of the Court of Federal Claims specializing in claims for damages under the National Childhood Vaccine Injury Act of 1986. That claim was denied and upheld on appeal, and the district court relied extensively on the Vaccine Court’s evaluation of the medical evidence.
The court distinguished between legitimate diagnoses by treating physicians, and hypotheses intended to be evaluated by specialists: “Many statements that Veryzer relies on were made by physicians who were acting outside their areas of expertise and were proffering possibilities to be explored by qualified specialists in those areas. The reports not only fail to establish a medical theory of causation, but they also offer inconsistent causes of Veryzer’s medical condition. [brackets omitted]”
Plaintiffs often accuse claim fiduciaries of cherry-picking evidence, but Veryzer confirms that plaintiffs can engage in the same behavior:
Upon review of the medical records and the parties’ briefs, an overarching observation the undersigned makes is that Veryzer engaged numerous doctors shortly after vaccination and there was no consensus that petitioner’s complaints were vaccine-related. Specialists, in discussing medical information pertinent to their specialty, found little or no objective evidence of a vaccine-related reaction. While several did raise a possibility of vaccine-relatedness, such possibility was rejected or discounted after reviewing the clinical data. [brackets omitted]
The court nicely summarized lessons to be learned about evaluating treating physicians opinions:
Veryzer’s case presents a good case study on why one should carefully evaluate treating physicians’ statements prior to leaping to the conclusion that those statements are probative evidence of causation. Many of the physician statements are based upon information supplied solely by petitioner himself, and not on the doctor’s independent assessment of the medical records. Several of the statements are made by doctors operating far outside their medical specialties. Other statements are later undermined by the doctor’s own assessment and finding of no objective evidence of the proposed cause. Lastly, many statements are couched in terms of possibilities and lack any explanation or support for such a possibility. [brackets and ellipses omitted].
This quote neatly encapsulates many of the issues that can arise in considering a treating physician’s opinion, especially when the dispute centers around the diagnosis of a complex medical problem.