The Seventh Circuit has recently considered whether surveillance evidence can be relied upon in deciding ERISA-governed disability claims. Marantz v. Permanente Med. Group, Inc. Long Term Disability Plan, 2012 WL 2764792 (7th Cir. July 10, 2012), involved a de novo review of the claim determination. The claimant was a pulmonologist who developed back pain. After paying benefits for about four years, the claim administrator began to look more closely at the claim, and its investigation included surveillance. As the Seventh Circuit described it:

The surveillance video shows Dr. Marantz running across a busy street in heeled boots; shopping at Home Depot, Neiman Marcus, Loehmann’s, and Nordstrom Rack; lifting heavy items into her car; riding a stationary bike in a group exercise class at a health club; and, after the second day of the evaluation, shopping at a fur store and Petco. The investigators followed Dr. Marantz for five days, but only recorded activity on three of those days. Dr. Marantz testified that one of the surveillance days was unusual in that she was hosting a friend who was visiting Chicago from out-of-town.

Dr. Marantz argued that surveillance was “inherently unreliable.” The Seventh Circuit disagreed, but identified several situations when surveillance “is of limited utility”: “when the recorded data does not conflict with the applicant’s self reports of limitations, or when the surveillance catches limited bursts of activity that might be anomalous.”

The First Circuit has also expressed the same notion more simply: “weight given to surveillance in these sorts of cases depends both on the amount and nature of the activity observed.” Maher v. Massachusetts Gen. Hosp. Long Term Disability Plan, 665 F.3d 289, 295 (1st Cir. 2011).

Marantz held that the activities caught on tape were inconsistent with Dr. Marantz’s statements about what she could and could not do. Marantz also held that, because she engaged in these inconsistent activities after she had worked in her part-time job or had spent several hours in rigorous physical therapy, the activity “cannot be explained by a ‘good days/bad days’ scenario.”

Because the devil is in the details on these kind of issues, a discussion of other Circuits’ evaluation of surveillance evidence is in order.

Caught Red-Handed

The most obvious situations in which surveillance is valuable evidence is when a claimant is caught on tape doing something that he or she (or her doctor) said she could not do. Some concrete examples of this can be found readily.

Marantz described in detail how the surveillance showed that Dr. Marantz had not been truthful:

According to Dr. Marantz, she is unable to work full time and when she arrives home from work she is exhausted. She also claims that if she works for more than four or five hours a day, she must increase her pain medication and needs a day to recuperate. Yet on December 1, for example, she left her home at 8:00 a.m., drove half an hour to the hospital, gave a presentation and left the hospital at noon. She then drove to a Costco near her home, purchased groceries which she then lifted from the bottom of the cart into the trunk of her car. In fact, the surveillance video shows her bending into her cart, twisting and lifting into the car nine times and then bending into the cart another eight times to gather items into a bag which then requires two hands and a big tug to maneuver into the trunk. (R. 161, Ex. 11, 1 of 3 at 23:30 to 28:30). Fifteen minutes later, the investigators filmed Dr. Marantz leaving Petco and lifting an almost twenty-pound case of dog food out of the cart and into her car, followed by a seventeen-pound bag of dry dog food, and then another heavy item that required two hands to lift. Id. At the end of it all, she is seen heaving a heavy-looking large black purse over her shoulder. Id. Next, she drove to the post office, retrieved her mail and drove home, arriving just before 2:00 p.m.—a full six-hour day filled with work, driving, walking, pushing, bending, twisting, and heavy lifting. The very next day, Dr. Marantz left her home at 7:05 a.m., and drove to a hospital to give another presentation, after which she drove to Woodfield Mall where she shopped for several hours before returning home just before 2:00 p.m. Rather than resting after a full day on December first, Dr. Marantz spent seven hours the next day working, sitting, walking, standing, shopping, and driving without showing any signs of pain or discomfort.

Despite two full days of activity, the next day, December 3, 2004, Marantz left her home at 7:30 a.m., drove to downtown Chicago and worked at the Illinois Department of Public Health for approximately four hours and then met a friend for lunch at 1:00 p.m. She sat at a table in the restaurant for about half an hour without exhibiting signs of discomfort. After lunch, Dr. Marantz drove her friend around Chicago until at least 3:00 p.m. when the investigators lost track of her. The investigators returned to her home by 3:30 and did not see her return by the time they ended surveillance at 4:00 p.m. Throughout her more than eight-hour day, she carried a large black purse and exhibited no visible signs of pain or discomfort.

See also Green v. Union Sec. Ins. Co., 646 F.3d 1042, 1052 (8th Cir. 2011) (“Union’s surveillance disclosed Green was capable of engaging in activities that his treating physicians did not believe he could perform”); Rose v. Hartford Financial Services Group, Inc., 268 Fed.Appx. 444 (6th Cir.2008) (the claimant asserted she could lift no more than three to four pounds, but was observed lifting a 37.5 pound bag of dog food).

 Not really inconsistent

Care must be taken to ensure that the activities seen are really inconsistent with claims, as Maher v. Massachusetts Gen. Hosp. Long Term Disability Plan, 665 F.3d 289, 294-95 (1st Cir. 2011) explains:

[A]t every stage of Maher’s administrative appeal, Liberty and Partners’ reviewing doctors emphasized the inconsistency between her self-reported limitations and the surveillance video. It is not apparent to us that any such inconsistency exists.

Maher reported that her activity varied based on the extent of her pain, nausea, and opportunity to pre-medicate for activities, but that she generally spent most of her days in bed. In over 90 hours of surveillance, the most damning evidence the MGH Plan can identify is 15 minutes during which Maher carried a bucket or flower pot and 30 minutes during which Maher played with her three-year-old son in the park. On 10 of the 19 days on which surveillance video is available, Maher engaged in no activity. On other days, Maher was shown sitting or standing outside her house with her husband for about 20 minutes.

Thus most of the surveillance, far from contradicting Maher’s disability, seems to confirm her lifestyle as generally housebound with occasional, limited activity. For the brief periods of slightly more vigorous activity, Maher may have pre-medicated or may have simply been having a “good day”—either of which would be consistent with her reported limitations. Of course, she may have been housebound by choice—that is the critical question. But this is far from a situation in which a video conclusively disproves the disability claim.

Hunter v. Life Ins. Co. of N. Am., 437 F. App’x 372, 378-79 (6th Cir. 2011) provides a similar analysis of a lack of inconsistency, along with a hint of the “limited bursts of activity” issue:

 [W]hile the surveillance footage reveals some discrepancies between Hunter’s stated and observed functionality, these inconsistencies are relatively minor, and do not indicate that Hunter can perform all the physical duties of her former occupation. See Hanusik v. Hartford Life Ins. Co., No. 06–11258, 2008 WL 283714, at *4 (E.D.Mich. Jan. 31, 2008) (noting that surveillance footage of the claimant walking thirty minutes, operating a car, and performing other small tasks, “fails to show Plaintiff either performing any single or combination of activities for an eight … hour period [.]”); Wilson v. Life Ins. Co. of N. Am., 424 F.Supp.2d 1146, 1157 n. 6 (D.Neb.2006) (“Nothing in the record comes close to establishing that [the claimant’s] activities of daily living could reasonably be equated with the demands of a full-time job.”). Indeed, out of over eighty hours of surveillance, less than thirty minutes capture Hunter engaging in any activity whatsoever.

Hunter has never disputed her ability to occasionally sit, stand, walk, reach, or drive. Moreover, Drs. Montgomery and Kerkar opined that the “non-exertional” activities displayed in the surveillance videos do not indicate that Hunter is able to perform the requirements of her previous occupation

A Combined Attack

As Maher and Hunter show, the arguments against surveillance are often combined together in a single attack. Cusson v. Liberty Life Assur. Co. of Boston, 592 F.3d 215, 228-30 (1st Cir. 2010), provides a nice illustration of how such combined attacks can be addressed:

 Cusson further argues that, contrary to the conclusions of Liberty and its reviewers, the surveillance video does not actually contradict any of her self-reported disabilities. Cusson never claimed that she was entirely incapable of performing normally; rather, she only claimed that she was unable to function normally most of the time. Thus, Cusson argues, given how infrequently she was seen outside of her home during the course of the surveillance, the surveillance is consistent with her claim of disability, and it was an abuse of discretion for Liberty to use it as evidence against her claim. Cusson notes that the surveillance video represents a mere two hour snapshot from twenty days of her life over the course of four months. Cusson cites a number of cases in which courts have held that it was an abuse of discretion to rely on such limited surveillance data. See, e.g., Soron v. Liberty Life Assurance Co., 2005 WL 1173076, at *11 (N.D.N.Y. May 2, 2005) (surveillance cannot be used to discount plaintiff’s self-reported symptoms where “it shows her performing isolated activities for brief periods of time with no revelation of consequences”); Osbun v. Auburn Foundry, Inc., 293 F.Supp.2d 863, 870 (N.D.Ind.2003) (1.5 hours of surveillance video over two days fell short of demonstrating that plaintiff was capable of sustaining a job); Cross v. Metro. Life Ins. Co., 292 Fed.Appx. 888, 892 (11th Cir.2008) (five days of surveillance resulting in two hours of video provided a “mere snapshot” of plaintiff’s activities and failed to take into account impact of those activities on plaintiff).

We conclude that it was reasonable to use the surveillance as evidence against Cusson’s claim of disability. We have permitted ERISA plan administrators to use this type of sporadic evidence in the past. See, e.g., Denmark II, 481 F.3d at 38 (it was not arbitrary and capricious for Liberty to consider reports and photographs from four days of surveillance that showed claimant outside only for short periods of time on two of the four days); Tsoulas, 454 F.3d at 79 (no abuse of discretion where Liberty considered surveillance evidence consisting of four hours per day for three days even though it only represented a “small-impliedly non-representative-fraction of each day”). More importantly, although the limited amount of time she was seen outside her home is a factor that weighs in Cusson’s favor, Liberty was certainly entitled to take notice of the fact that the video shows Cusson doing particular activities that she claimed she could not do. For example, she is seen going into large stores on two separate occasions, despite having claimed that she avoided malls because they were too big and preferred small stores. While we of course recognize that a Home Depot or a Wal-Mart is not the same thing as a mall, we cannot say that it was an abuse of discretion for Liberty and its reviewers to conclude that Cusson’s apparent ability to navigate very large stores contradicted her claim that her illness required her to frequent small stores. The surveillance also shows Cusson bending, kneeling, picking up large objects such as a bag of cat litter, and pushing a loaded cart, despite the fact that the Functional Capacities Form completed by Figueroa on May 7, 2004 indicated that Cusson was physically unable to perform these activities.

Nail Down the Inconsistencies

It would seem that the presence of true inconsistencies is the most important factor. If the claimant is observed engaging in activities that he should not physically be able to perform, then the surveillance will likely be significant even if it is only of short duration. If the activities are not inconsistent, then the it is more likely that the value of the surveillance will be minimized as showing only limited bursts of activity.

A claim administrator can try to nail down inconsistencies by interviewing the claimant after surveillance videos are in the can, as is shown by Finley v. Hartford Life & Acc. Ins. Co., 400 F. App’x 198, 199-201 (9th Cir. 2010): “Immediately before Finley saw the video, she signed a statement attesting that she had been unable to perform even mild physical activity for the past six months.” Ms. Finley didn’t stop there, but then proceeded to make up contradictory excuses when she finally saw the tape: “After seeing the video, Finley gave several contradictory explanations for her activities. First she said that she was in severe pain while performing the activities, but then later said that she was able to do them because she was in a period of feeling better. She also stated that it took her two weeks to recover from the gardening, despite the fact that she walked her dogs for over an hour and brushed them down the next day.”

Make Sure You Have Other Evidence

It is important to consider surveillance as one piece of a puzzle rather than as a smoking gun. The surveillance should be evaluated by one or more doctors, and it should be considered in light of the other available evidence. When this is done, the surveillance can be the icing on the cake:

At a minimum, Hartford’s denial was supported by an independent review of the record, lack of objective medical evidence, lack of explanation by Alto’s doctor for his determinations that Alto could not work, surveillance video footage indicating greater functionality than Alto claimed, and the ultimate reports of Alto’s own physicians that if not for his mental disability, he could return to work. The denial of benefits was not, under these circumstances, arbitrary and capricious.

Alto v. Hartford Life Ins. Co., 11-1563-CV, 2012 WL 2125884 (2d Cir. June 13, 2012)

 O’Bryan also faults the defendants’ reliance on the surveillance report. According to him, the minimal activities disclosed in the report exhausted him and were not representative of sustained capability. However, it appears that the reviewing physicians concluded that O’Bryan’s performance of the tasks described contradicted the symptoms he reported to his medical examiners. No arbitrary or capricious finding can be based on this reasoned explanation.

O’Bryan v. Consol Energy, Inc., 11-5268, 2012 WL 1216513 (6th Cir. Apr. 12, 2012).

 Finally, it was reasonable for Hartford to use videotape surveillance to observe Daigle’s condition[;] …  furthermore, this was only one piece of the evidence Hartford cited in its decision.

Daigle v. Hartford Life & Acc. Ins. Co., 452 F. App’x 689, 690 (8th Cir. 2011)

 Hartford did not distort the content of the video or overemphasize its importance when requesting medical reviews. Nor did Hartford’s doctors themselves mischaracterize Finley’s activities or rely on the videos to the exclusion of all other evidence. … Hartford provided the reviewing physicians guidance to consider the videos, directing the physicians not to rely too heavily (or too little) on them. These instructions were an appropriate effort to reduce bias and consider all available evidence. …

It was not an abuse of discretion for Hartford to conclude that Finley lacked credibility and therefore to discount the value of her self-reported pain incidence, the heart of her claim and her doctor’s assessments of her health, and place more weight on the surveillance video.  … As the district court stated in its first order on the merits, the videos show Finley “performing vigorous yard work requiring the use of her arms in a way that far exceeded her reported abilities.” Hartford’s physicians watched the videos and they all concluded that her activities evidenced an ability to work at a level greater than she admitted. They also agreed that the activities she performed were too strenuous to simply have been the result of a temporary improvement in her condition.

In contrast, Finley’s physicians did not adequately explain how her activities in the videos were consistent with their conclusion that she could not work. They explained that mild physical activity helped to alleviate Finley’s symptoms, but that explanation contradicted Finley’s own description of her pain, which she repeatedly said increased with even mild physical activity.

Finley v. Hartford Life & Acc. Ins. Co., 400 F. App’x 198, 199-201 (9th Cir. 2010)

Reliance on surveillance evidence in conjunction with medical evidence is not improper. Rizzi identifies no case law and we have found none which holds the denial of a disability claim based on surveillance evidence in conjunction with objective medical evidence or opinions of independent physicians is unreasonable or an abuse of discretion.

Rizzi v. Hartford Life & Acc. Inc. Co., 383 F. App’x 738, 751-52 (10th Cir. 2010)

 Final Thoughts

Surveillance can be a powerful tool in evaluating difficult disability claims. But there is always the danger of giving it more weight than it deserves, especially in the (common) situation that the claimant is not observed performing precisely the activities that her claimed restrictions and limitations would preclude. As long as the surveillance is critically evaluated, and placed in context with the other available evidence, it will continue to have value.