In another ERISA claim involving fibromyalgia and Met Life, the insurer denied a claim of disability based on the lack of objective findings that the claimant had the condition and that her functional capacity did not prevent her from working.

A past discussion of Met Life and its apparent refusal to recognize fibromyalgia as a legitimate medical condition that could lead to functional impairment curiously involved the same reviewing physician, Dr. Jeffrey Lieberman, whom the court had earlier upbraided for selective use of the medical record to justify denying a claim. The court in that instance also noted that the organization for which Dr. Lieberman worked did substantial business with Met Life. 

In this case, the plaintiff/claimant, Ms. Buzby, exhibited signs of fibromyalgia, a mysterious condition for which medical science has been unable to objectively verify, although it does accept as legitimate. Met Life had rejected Ms. Buzby’s claim by arguing that no objective findings could verify its existence in her case.

Met Life’s administrator had again ignored clear case precedent that stated such objective tests do not exist and that the administrator could not require something that no medical test could produce. It could, however, demand objective, clinical evidence of a disability based on fibromyalgia. In this case, the court found that Met Life and Dr. Lieberman’s denial was arbitrary and capricious.

Met Life did not properly assess the existence of objective evidence in the record of fibromyalgia. The medical literature states there are 18 trigger points for the disease of which the patient needs to have 11 for a diagnosis. One of Ms. Buzby’s doctors found she met 15 of them. Met Life ignored this finding and only noted the number of possible trigger points. Indeed, Dr. Lieberman had noted that the objective findings supported a diagnosis of fibromyalgia, but the administrator failed to address or note this in its denial letter.

The court noted, however, that a plan administrator may choose not to give more weight to a treating physician's opinion over that of a reviewing doctor, and that Met Life could have used the lack of consistent medical findings in this case to show lack of a disability, but that it could not summarily reject findings that support functional work capacity evaluations that do indicate a disability.

Here, Dr. Lieberman unreasonably rejected a re-testing by one of the plaintiff’s doctors to test her validity in performing certain tests and who stated that she believed Ms. Buzby was putting forth her best efforts during her FCE, or functional capacity evaluation, and that she clearly had a functional disability. Also, Met Life apparently chose not to give a letter written by the doctor who administered the FCE and her input on its validity and the results.

Consequently, the court stated that Dr. Lieberman’s denial was unreasonable for failing to consider the FCE report and by Dr. Lieberman going outside the record by calling the FCE doctor and by not including statements the doctor made in which she validated the FCE scores in the second FCE.

Dr. Lieberman also ignored other work capacity evaluations by Ms. Buzby’s other doctors who found objective evidence of extreme limitations both physically and cognitively. Dr. Lieberman had stated that any cognitive component was not part of this claim but the court ruled that if fibromyalgia produces cognitive impairment, Met Life could not determine that it does not.

By remanding the case to the administrator and requiring it to reassess its determination based on the extensive evidence contradicting its denial, the court placed Dr. Lieberman’s Met Life’s credibility for its selective use of the medical evidence.


United States District Court,
D. Colorado.
Carrie BUZBY, Plaintiff,
METROPOLITAN LIFE INSURANCE COMPANY, a/k/a Met Life; and International Business Machines Corporation, a/k/a IBM, Defendants.
Civil Action No. 04-cv-02631 WYD.
July 21, 2008.

James L. Noel, Michael Scott Krieger, Noel & Krieger, Lakewood, CO, for Plaintiff.

Jack M. Englert, Jr., Holland & Hart, LLP, Greenwood Village, CO, for Defendants.



Plaintiff asks this Court to find that Met Life's determination was arbitrary and capricious, to order Met Life to reinstate her benefits, less any overpayments due to her receipt of Social Security Disability Income (“SSDI”), and to award interest on back due amounts and attorneys' fees and costs. FN1 Met Life urges the Court to affirm its decision denying benefits and dismiss plaintiff's claim, and pursuant to its counterclaim, award it amounts that it has allegedly “overpaid” due to plaintiff's receipt of SSDI benefits.


B. The objective evidence standard
*6 Plaintiff also argues that Met Life's requirement of objective evidence was unreasonable. She asserts that the Tenth Circuit has held that objective findings are not required to prove a claim of disability based on conditions such as fibromyalgia. I find that this issue turns on whether the administrator requires objective evidence of the disability, i.e., the claimant's functional capacity, or whether the administrator requires objective findings with respect to the condition itself.

I first address whether Met Life could reasonably require objective evidence of plaintiff's disability. I find no error with this requirement. The Plan itself expressly requires proof of disability “satisfactory” to Met Life, although this does not specify whether or not objective evidence is required. I find that interpreting “satisfactory” proof to mean objective evidence of the disability is not an unreasonable interpretation of the term of the language of the Plan. Indeed, there is ample authority that it is reasonable for an administrator to require objective evidence that conditions such as fibromyalgia disable the claimant from working, i.e., that the claimant's functional capacity prevents her from working. See Huffaker v. Metropolitan Life Ins. Co., No. 07-5410, 2008 WL 822262, at *5-6 (8th Cir.2008); Rose v. Hartford Fin. Servs. Group, Inc., No. 07-5423, 2008 WL 648965, at *8-9 (6th Cir.2008); Jordan, 370 F.3d at 877. I discuss later whether there was objective evidence in the record that the fibromyalgia was disabling.

I next address whether it is reasonable for a plan administrator to require objective findings that support the existence of the condition itself. I note that Met Life appeared to base its denial of benefits on the fact that there were no such objective findings. Specifically, in Met Life's July 15, 2003, denial letter, Met Life stated as a basis for denial of the claim that “[t]he information received from Dr Weiss and Dr. Grosser does not ... provide any objective findings on physical exams....” (AR 251). It is unclear what Met Life meant from this statement. To the extent that Met Life was requiring objective findings from the physical exams such as joint swelling, muscle strength, sensory functions, reflexes or other such evidence, this was unreasonable and would be arbitrary and capricious.

As noted by the Tenth Circuit:

Patients with FMS [fibromyalgia) syndrome] usually look healthy. Their joints appear normal, and further musculoskeletal examination indicates no objective joint swelling, although there may be tenderness on palpation. In addition, muscle strength, sensory functions, and reflexes are normal despite the patient's complaints of acral numbness.

Moore v. Barnhart, 114 Fed. Appx. 983, 991-92 (10th Cir.2004). In other words, fibromyalgia is not capable of being diagnosed through such objective findings. Instead, it is instead “diagnosed entirely on the basis of patients' reports and other symptoms.” Id. at 990. Indeed, the Tenth Circuit has indicated that “ ‘[b]ecause proving the disease is difficult, fibromyalgia presents a conundrum for insurers and courts evaluating disability claims.’ “ Welch v. UNUM Life Ins. Co. of Am., 382 F.3d 1078, 1087 (10th Cir.2004) (quotation omitted).

*7 While Moore was not an ERISA case, there is ample authority that supports its holding in the ERISA context. In other words, it is unreasonable for a plan administrator to require objective medical findings such as those discussed above to prove the existence of the condition of fibromyalgia. See Jordan, 370 F.3d at 877 (“[f]ibromyalgia is a medical label that, as Jordan recognizes, cannot be objectively proved.... Thus if the administrator had said, ‘we will not accept fibromyalgia as a diagnosis unless you present objective evidence of it such as positive findings on x-rays,’ she would have been demanding what cannot exist, which is what Jordan claims she did”) (quotation omitted); Cook v. Liberty Life Assur. Co. of Boston, 320 F.3d 11, 21 (1st Cir.2003) (“[g]iven the nature of Cook's disease, it was not reasonable for Liberty to expect her to provide convincing ‘clinical objective’ evidence that she was suffering from CFS” and fibromyalgia).

Indeed, cases clearly distinguish between the requirement of objective evidence of a disability as compared to objective evidence of a condition such as fibromyalgia and chronic fatigue syndrome. Requiring objective evidence of the disability is reasonable but requiring objective findings related to the existence of those conditions is not. See Rose, 2008 WL 648965, at *9 (“While it would have been unreasonable for Continental to request objective evidence of fibromyalgia and chronic fatigue syndrome-conditions that are diagnosed through an evaluation of an individual's subjective complaints of pain-Continental did not require such evidence. Rather, Continental based its decision on the lack of objective evidence of the effect Rose's conditions had on her functional capacity); see also Pralutsky v. Metropolitan Life Ins. Co., 435 F.3d 833, 839 (8th Cir.2006).FN5

Based on the foregoing, Met Life's argument in its brief that its decision to deny plaintiff's claim and reject the opinions of the treating physicians was reasonable as the opinions were based primarily on plaintiff's own subjective complaints must be rejected. Further, I note as to this argument that a medical doctors's statements about Plaintiff's condition or impairments “are specific medical findings” which cannot be rejected without conflicting evidence, even though these findings are based on subjective complaints of the plaintiff. See Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994).

I also note that the type of objective evidence in the record that does support a diagnosis of fibromyalgia was actually present in the record. I find that this also may not have been properly analyzed by Met Life. As Met Life's letter of April 15, 2004, recognized, Dr. Weiss found that Plaintiff had 15 of 16 trigger points. (AR 768). Met Life went on to state in that letter that the consultant noted that fibromyalgia patients have 18 trigger points. ( Id.) It is unclear whether Met Life used the consultant's finding as a basis to reject Dr. Weiss's findings. However, fibromyalgia is diagnosed more or less objectively through trigger points-in order to have fibromyalgia a patient must have 11 of 18 identified trigger points. See Moore, 114 Fed. Appx. at 991; Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 916 (7th Cir.2003); see also Meraou, 2007 WL 431515, at *8; Hidalgo v. Comcast Comprehensive Health and Welfare Plan, No. 06-cv-01009-WYD-MJW, 2007 WL 2889707, at *7-8 (D.Colo.2007).

*8 Certainly the finding by Dr. Weiss of 15 trigger points would satisfy such a requirement. Further, Dr. Lieberman agreed that the “objective findings” supported a diagnosis of fibromyalgia (AR 764).FN6 This was not discussed or recognized by Met Life in its subsequent denial letter in April 2004. Further, it is impossible to determine whether Met Life's statement in its final denial letter that “the original claim determination was appropriate” relied on the same reasons for denial of the claim discussed in the July 2003 letter, including the fact that Plaintiff did not present objective medical findings from physical exams that demonstrated fibromyalgia.


C. Other Medical Evidence
Plaintiff also submits that Met Life's determination as reflected in the Lieberman evaluation is not supported by the record as a whole because it cites to some medical evidence but ignores other medical evidence of disability submitted by plaintiff, with little or no indication that such other medical evidence was considered. Specifically, plaintiff argues that Met Life ignored medical evidence of plaintiff's physical disability submitted by her treating physicians Drs. Weiss, Grosser, Kassan, Westermann, opinions by Drs. Bennett and Gantz, and a mental evaluation by a psychologist named Dr. Peterson (Plaintiff's Brief at 14-17). As defendant correctly points out, in an ERISA case, unlike a Social Security disability case, there is no special weight to be given to the opinions of treating physicians. Nord, 538 U.S. at 834. Nonetheless, if the record is replete with medical evidence of disability that is not considered by the claims administrator, its determination becomes suspect. Accordingly, I consider the medical evidence cited by plaintiff and Met Life's evaluation of such evidence.

*9 Dr. Lieberman's evaluation indicates that he reviewed Dr. Weiss's medical notes, but he did not expressly address the October 6, 2003 opinion letter. Nonetheless, given the lack of medical findings regarding functional limitations that impact disability in the office note of the same day, it would be reasonable for the claims administrator not to give weight to that opinion letter.

Plaintiff also submits that a letter from Dr. Grosser dated February 20, 2004, addressed “to whom it may concern,” supports her disability claim as it states plaintiff's “medical conditions are permanent and cause disability to the point she is unable to work.” AR 597. Again, Dr. Lieberman's evaluation does not address this specific letter from Dr. Grosser, although it does reference other information provided by him.

I note, however, that Dr. Grosser first saw plaintiff in January 2003, and his notes of that examination describe plaintiff as a “well-nourished, well-developed female” with muscle tenderness in her back and arms and swelling in the extremities (AR 393). He recommended continuing with her regular medications as well as “regular exercise” and participation in exercise classes ( id). He noted in a letter dated April 1, 2003, that Plaintiff has “L5-S1 facet arthropathy bilaterally, and tremors” and “due to the fibromyalgia syndrome involving ocular muscles, she has diplopia” and has “difficulties with memory and concentration.” (AR 577). “These episodes occur daily and they interfere with her ADLs, as well as gainful employment.” ( Id.) FN7

    FN7. Dr. Lieberman rejected the findings of diplopia, stating that this finding “illustrates a lack of understanding of fibromyalgia” which “does not affect specific muscles such as ocular muscles in this way and has never been associated as an actual cause of diplopia.” (AR 765).

As generally indicated above, given the lack of consistent medical findings to support the opinions set forth by these various doctors' reports, and the lack of specificity as to the physical limitations faced by plaintiff, I cannot find that Met Life's determination that plaintiff has failed to show she is disabled, in light of these reports alone, is unreasonable or unsupported. However, I do find that these reports cannot be summarily rejected to the extent that they support the functional/work capacity evaluations of Ms. Benisch and Dr. Peterson, which I find below were not properly evaluated. These evaluations provide objective medical evidence of Plaintiff's disability. To the extent that Plaintiff's treating physicians' opinions support these evaluations, I find that they must be properly considered on remand. See Nord, 538 U.S. at 834 (a plan administrator “may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician).

I find that Dr. Lieberman's rejection of the FCE is unreasonable for several reasons. First, Dr. Lieberman is not shown to have any expertise with respect to functional capacity evaluations, which are occupational assessments typically performed by occupational therapists. As such, it was improper for him to have rendered a personal opinion that the re-testing by Ms. Benisch was improper. Further, to the extent that he relied on the opinion of the Atlanta FCE Administrator, I also find that this was unreasonable. The Administrator was not identified and was not part of the record. Without such identification, it was impossible for plaintiff to determine whether this opinion actually substantiated Dr. Lieberman's opinion or whether the opinion was reliable. Second, I note that Dr. Lieberman does not compare the results of this FCE with the results of the FCE conducted by Dr. Grosser to determine to what extent they are consistent. This also was unreasonable.

*14 As to Dr. Lieberman's decision that “[t]he evidence on the FCE of symptom exaggeration is compelling”, he appeared to rely not on the results of the actual FCE in the record (which did not support such a finding as discussed below) but on his subsequent telephone conversation with Ms. Benisch. As stated previously, he stated that Ms. Benisch said she felt the claimant self-limited her abilities in order that she could not do as much as she is capable of (AR 764). He also said that Ms. Benisch admitted that the re-testing may have led to less-than-valid results ( Id.)

By letter dated May 11, 2004, plaintiff's counsel responded to Dr. Lieberman's evaluation and forwarded to Met Life a letter issued by Ms. Benisch dated May 7, 2004 (AR 775-777). Ms. Benisch's letter sets forth in detail what she recalls explaining to Dr. Lieberman in their telephone call. She indicates that they discussed the possibility of a “learning curve” affecting the validity of the second test, but states that while a person may perform faster on a second test, repeating a test does not “affect consistency of effort.” AR 776-77. She also states that she explained to Dr. Lieberman that since patients are not typically given a second chance to test, she is not aware of literature that addresses the “reliability of validity testing on a repeat basis.” AR 777. The letter does not expressly deny Dr. Lieberman's statement that Ms. Benisch told him plaintiff self-limited her abilities, but it does say that she believes the validity scores were excellent during the second FCE (AR 776) and it was her professional opinion that plaintiff “was putting forth full effort during the second FCE.” AR 777. I also note that the FCE report itself has a section titled “consistency of effort” which describes methods employed to determine the subject's consistency (AR 364-65). The apparently contemporary notation by Ms. Benisch states that she believed plaintiff “was putting forth full effort during the FCE.” AR 365.

The FCE report also contains a section titled “symptom exaggeration” which applies techniques in an attempt to determine if there is clinical behavior indicating that the demonstrated disability is “out of proportion” to the known medical condition (AR 366-368). Under this section Ms. Benisch noted that there is a “non-physiological factor” to plaintiff's pain presentation, as her pain syndrome has a “psych-emotional impact on her.” AR 367. The report concludes that ‘[e]ven with the intense focus on her disability however, Ms. Buzby was able to put forth full effort with encouragement and support.” AR 367-68. In essence, these two sections, completed as they are contemporaneously with the FCE, and Ms. Benisch's follow up letter of May 7, 2004, certainly demonstrate that Ms. Benisch believed the tests results reflected in the FCE were valid.

The administrative record does not indicate that Ms. Benisch's letter of May 7, 2004 was sent to Dr. Lieberman for his consideration on the issue of the validity of the FCE. The final entry in the administrative record is a June 11, 2004 letter from Met Life to plaintiff's counsel acknowledging receipt of the May 11, 2004 letter with the enclosure from Ms. Benisch, but stating that review was completed on April 14, 2004 and that such determination “constituted completion of the full and fair review.” AR 784. It thus appears that Met Life did not further consider its determination after receipt of the May 11, 2004 letter and Ms. Benisch's input on the issue of the validity of the FCE.

*15 The question is whether Met Life's failure to consider the last letter may be considered by me as a factor that undermines the record support for its final determination. Plaintiff points to no provision in the disability policy, or in the ERISA statute, that delineates how many opportunities a claimant has to demonstrate proof of disability, nor do I find any such provision in the plan or the statute that provides for the submission of additional information after an appeal is denied.

However, in Timm v. Prudential Insurance Co. of America, No. 05-cv-02378-MSKBNB, 2007 WL 2669134 (D.Colo.2007), Judge Krieger of this district faced a similar situation and considered a post-determination submission from a treating physician which, as in the case at bar, was submitted to clarify a prior opinion from that treating physician and rebut the insurer's claim denial. Judge Krieger noted that although this rebuttal was submitted after the disposition of the claimant's final appeal, the disability insurer “expressly agreed to consider it.” Id., 2007 WL 2669134 at *9. She found that the supplemental submission alleviated objections raised by the insurer's reviewing physician to the treating physician's earlier submitted report which supported a finding of disability. She therefore concluded, that with such objections clarified by the supplemental submission, the reviewing physician's concerns were put to rest, and on such a record, the insurer failed to show that its decision was supported by substantial evidence. Id. at *11.

Here, there is no indication that Met Life expressly agreed to consider the final letter from plaintiff's counsel or the enclosed letter from Ms. Benisch. The April 15, 2004 notice of claim denial to plaintiff references the Benisch FCE, but does not invite any further input from the claimant (AR 767-68). Moreover, upon receipt of the May 11, 2008 letter, Met Life did not respond that it was considering the enclosed material, but it did acknowledge receipt of the material (AR 784). Nonetheless, as in the Timm case, the final letter from Ms. Benisch provides information that would clarify uncertainty on the part of Dr. Lieberman as to the validity of the substantive findings in the FCE. Since he did not consider or discuss those substantive findings because he found the FCE to be invalid, the basis for the determination by Met Life, depending as it does on Dr. Lieberman's review, is called into question if the FCE is deemed valid. Further, since Dr. Lieberman went outside the record in terms of his call to Ms. Benisch to find reasons to reject the FCE and since his report was rendered after the deadline given to plaintiff to provide information in support of her claim, it seems only fair and reasonable that Met Life should have allowed and should now consider plaintiff's response to such reports, including the final letter from Ms. Benisch. Indeed, the failure to consider that letter seems unreasonable given the above facts.

*16 In addition, as I noted above, Dr. Lieberman found based on the FCE that plaintiff was cognitively capable (AR 764). But, as Ms. Benisch noted, the FCE indicated cognitive impairment when plaintiff is required to flex her neck downward (AR 777). Moreover, as plaintiff points out, the record contains other evidence of cognitive impairment. A work capacity evaluation performed on January 5, 2004 by Dr. Linda Peterson, a licensed clinical psychologist, reflects that plaintiff has extreme limitations in the ability to make simple work-related decisions, in the ability to perform activities within a schedule, and the ability to sustain an ordinary routine without special supervision (AR 325-26). The evaluation form defines an “extreme limitation” as leaving no useful ability to perform in this area (AR 325). The evaluation also reflects plaintiff has marked limitations in numerous other categories, including the ability to understand and remember instructions, ability to carry out detailed instructions, and ability to maintain attention and concentration over extended periods (AR 325). The evaluation constitutes objective evidence of significant limitations in Plaintiff's cognitive abilities, see Huffaker, 2008 WL 822262, at *6, and is substantiated by findings from plaintiff's other doctors. As such, I find it was unreasonable not to consider this evidence.

Dr. Lieberman's evaluation acknowledges one report by Dr. Peterson, buts fails entirely to address the work capacity evaluation described above. This was also unreasonable. Defendant's brief seeks to discount Dr. Peterson's findings and opinions as “totally irrelevant” to the asserted basis for plaintiff's disability, arguing that psychological problems have not been the basis for plaintiff's claim (Defendant's Brief at 25-26). However, there is nothing in the record on which to conclude that fibromyalgia does not have a cognitive component and it is error for Met Life to make such a medical judgment.

In fact, Met Life's own consultant Dr. Lieberman suggests that “cognitive impairment” is a relevant consideration, but states that objective evidence was lacking (AR 765). Yet, he does not address the evidence set forth in the work capacity evaluation of Dr. Peterson, instead summarily concluding that there is no objective evidence of cognitive impairment. If plaintiff's fibromyalgia produces cognitive effects that reduce her functioning in an area that would prevent work, that is absolutely a factor that must be considered in determining whether she is disabled.

Finally, given the FCE which found that Plaintiff could not use fine manipulation in both hands as well as findings regarding “failed back syndrome”, “Right S1 radiculopathy and lumbar facet arthritis, lumber facet disease” and other similar findings in the record (AR 575, 559, 560), I also question Dr. Lieberman's finding that there is no severe mechanical impairment. Indeed, Dr. Lieberman does not define what he means to be a “severe mechanical impairment” and I find that this issue was not properly developed.

*17 In sum, Dr. Lieberman's lack of consideration of the substance of the FCE due to his concerns over the test validity, his failure to compare the results of that FCE with the FCE prepared by Dr. Grosser to determine to what extent the later FCE is substantiated, his improper decision to invalidate the re-testing of Ms. Benisch based on his opinion and that of an unidentified FCE evaluator, and his failure to consider the cognitive components of plaintiff's condition or properly assess the issue of a mechanical impairment leave me with the conclusion that a remand is also appropriate on these grounds. All the evidence has not been fully considered, and Met Life was not entitled to rely on Dr. Lieberman's opinion to deny liability without proper consideration of all of this evidence.

For the reasons set forth above, it is

ORDERED that this matter is REMANDED to the claims administrator to make further findings consistent with this Order.

Awarded: Claimant Wins

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