Citations
- 466 F. Supp. 2d 1096
Full opinion text
MEMORANDUM OPINION AND ORDER ON THE MERITS UPON SUBMISSION ON THE WRITTEN RECORD
BENNETT, Chief Judge.
TABLE OF CONTENTS
I.INTRODUCTION.........................................................1101
A. Procedural Background ..............................................1101
B. Factual Background..................................................1102
1. Torgeson’s employment...........................................1103
2. The Plan.........................................................1103
3. Torgeson’s treatment history......................................1104
a. Pain.........................................................1105
b. Fatigue......................................................1106
c. Depression...................................................1107
d. Work restrictions.............................................1109
4. Torgeson’s attempts to obtain LTD benefits.........................1111
a. Application...................................................1111
b. Initial review and denial.......................................1111
c. Appeal and further review.....................................1113
II. LEGAL ANALYSIS.......................................................1119
A. What Standard Of Review Applies?....................................1119
1. Arguments of the parties..........................................1119
2. Analysis .........................................................1121
a. Conflict of interest............................................1121
b. Procedural irregularities ......................................1122
B. The Applicable Standard Of Review....................................1124
C. Application Of The Standard..........................................1124
1. Arguments of the parties..........................................1124
a. Torgeson’s initial arguments...................................1124
b. Unum’s response..............................................1125
c. Torgeson’s reply..............................................1126
2. Discussion.......................................................1126
a. Improper reliance on a lack of objective evidence................1126
b. Improper rejection of treating physicians’ opinions..............1131
c. Failure to consider co-morbidity...............................1133
d. Failure to find “disability” ....................................1134
D. The Appropriate Remedy..............................................1137
1. Remand or award of benefits? .....................................1137
2. Prejudgment interest .............................................1137
3. Attorney fees.....................................................1138
III. CONCLUSION...........................................................1139
Was a claimant with a string of purported maladies, including fibromyalgia, chronic pain syndrome, chronic fatigue syndrome, depression, and migraine headaches, sufficiently “disabled” to receive benefits under a long-term disability benefits plan governed by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq.? That is the question posed in this action for judicial review, pursuant to 29 U.S.C. § 1132(a)(1)(B), of an insurer’s denial of benefits. The claimant contends, in essence, that there was no reasonable basis to dispute that she suffered from all of her purported maladies, that the co-morbidity of those maladies plainly made her “disabled” within the meaning of the long-term disability insurance plan, and that all of her treating physicians agreed that she was “disabled.” Thus, she contends that the insurer abused its discretion — if, indeed, the insurer is entitled to “abuse of discretion” rather than “less deferential” review — when the insurer denied her application for benefits. The insurer contends, however, that it did not abuse its discretion by concluding that the medical records submitted by the claimant did not support the claimant’s claim of a “disability,” even though the medical records did support some of her claimed maladies. The insurer contends that the record shows that the claimant went “shopping” for a physician who would give her the work limitations that she demanded after all of her other treating physicians had refused to do so.
I. INTRODUCTION
A. Procedural Background
Plaintiff Jean Torgeson, a former “office nurse” with Mason City Clinic, P.C. (MCC), filed this ERISA judicial review action pursuant to 29 U.S.C. § 1132(a)(1)(B) on August 30, 2005, seeking restoration of disability income benefit payments pursuant to a long-term disability (LTD) policy of insurance underwritten by Unum Life Insurance Company of America (Unum) in which employees of MCC were able to participate. See Complaint (docket no. 6). Torgeson named as defendants both MCC and Unum. Torgeson identified as the basis for her claim for LTD benefits her increasing pain from fibromyalgia, migraine headaches, chronic fatigue, and depression secondary to her chronic pain. On October 18, 2005, Unum filed an Answer (docket no. 11) to Torgeson’s Complaint denying that Torgeson is entitled to benefits. The parties eventually stipulated to the dismissal of MCC from this litigation, although MCC had never answered Torgeson’s Complaint. See Stipulation Of Dismissal, April 11, 2006 (docket no. 21).
On January 13, 2006, the court entered a Scheduling Order (docket no. 12), which provided, in pertinent part, that this case would be submitted on a written record and briefs on the merits pursuant to a schedule set out in the order. Notwithstanding the terms of the Scheduling Order, the parties failed to submit the written record upon which determination of the case was to be made by the February 15, 2006, deadline, and notwithstanding that no dispositive motions had been contemplated in the Scheduling Order, Torgeson filed a Motion For Summary Judgment (docket no. 13) on March 31, 2006. By order dated April 3, 2006 (docket no. 15), the court sua sponte struck Torgeson’s Motion For Summary Judgment, because that motion did not comply with the terms of the Scheduling Order. The order striking Torgeson’s Motion For Summary Judgment also set a revised schedule for submission of the case on a written record and briefs, although the court amended that schedule somewhat to correct the deadlines in another order filed April 4, 2006 (docket no. 16). Pursuant to the revised schedule for submission of the case, Unum filed the administrative record on April 13, 2006 (docket no. 22). However, on May 1, 2006, the deadline for submission of her brief on the merits, instead of filing such a brief, Torgeson unaccountably filed another Motion For Summary judgment (docket no. 26). By order dated May 2, 2006 (docket no. 28), the court again sua sponte struck Torgeson’s second Motion For Summary Judgment, because that motion did not comply with either the original or revised schedule for submission of the case on a written record and briefs. In' that order, the court also established a second revised schedule for submission of the case on a written record and briefs, prohibited Torgeson from filing any further dispositive motions in this case, and prohibited the parties from filing any other motions in the case except upon leave of the court.
Being able to take a hint when hit over the head with one, the parties finally submitted the case on the written record and briefs, as originally contemplated in the January 13, 2006, Scheduling Order, pursuant to the revised briefing schedule and subsequent extensions: Torgeson filed her opening brief on the merits (docket no. 29) on May 8, 2006; Unum filed its response (docket no. 34) on July 24, 2006; and Torgeson filed a reply (docket no. 35) on August 17, 2006. With the filing of Torgeson’s reply, this matter was fully submitted on the merits. Unfortunately, in addition to the delays occasioned by Torgeson’s failure to comply with the original scheduling order, the press of other business has kept the court from resolving this matter in as timely a manner as the court would have liked.
B. Factual Background
The record submitted provides the following factual background. The court will reserve essential findings of fact, however, for its legal analysis.
1. Torgeson’s employment
Jean Torgeson worked for MCC as an “office nurse” from October 1, 1985, until July 28, 2004, when she ceased working owing to health problems allegedly consisting of fibromyalgia, chronic pain syndrome, chronic fatigue syndrome, migraine headaches, and depression. Prior to the onset of these conditions, Torgeson had survived lymphoma and, indeed, had continued to work through the chemotherapy prescribed to treat her cancer. Torgeson’s lymphoma had been in remission for almost six years at the time of the events at issue here. Torgeson and her employer attempted to accommodate her limitations from pain, fatigue, migraines, and depression by reducing her work hours, as ordered by her physicians, and by assigning her to a less-demanding “float” nursing position, instead of her prior position in plastic surgery. Unfortunately, Torgeson was eventually forced to quit her job as a nurse. Thereafter, she was only able to work between four and eight hours per week at a retail outlet.
2. The Plan
One of the employment benefits that Torgeson enjoyed as an employee of MCC was participation in an ERISA-governed Group Insurance Policy (the Plan) underwritten by Unum Life Insurance Company of America. The Plan, Administrative Record (docket no. 22), 132-72. The Plan included LTD benefits under certain conditions. Specifically, the LTD provisions of the Plan that are pertinent here are the following:
HOW DOES UNUM DEFINE DISABILITY?
AH Other Employees
You are disabled when Unum determines that:
— you are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury; and -you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury.
After 24 months of payments, you are disabled when Unum determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.
The loss of a professional or occupational license or certification does not, in itself, constitute disability. We may require you to be examined by a physician, other medical practitioner and/or vocational expert of our choice. Unum will pay for this examination. We can require an examination as often as it is reasonable to do so. We may also require you to be interviewed by an authorized Unum Representative.
HOW LONG MUST YOU BE DISABLED BEFORE YOU ARE ELIGIBLE TO RECEIVE BENEFITS?
All Other Employees
You must be continuously disabled through your elimination period. Unum will treat your disability as continuous if your disability stops for 30 days or less during the elimination period. The days that you are not disabled will not count toward your elimination period.
Your elimination period is 90 days.
CAN YOU SATISFY YOUR ELIMINATION PERIOD IF YOU ARE WORKING?
Yes. If you are working while you are disabled, the days you are disabled will count toward your elimination period.
The Plan, Administrative Record at 146-47 (emphasis in the original). The Plan Glossary defines key terms, in bold in the Plan and as quoted above. See id. at 166-69. The definitions in the Plan of the key terms, in the order in which they appear above, are the following:
LIMITED means what you cannot or are unable to do.
MATERIAL AND SUBSTANTIAL DUTIES means duties that:
— are normally required for the performance of your regular occupation; and
■ — ■ cannot be reasonably omitted or modified, except that if you are required to work on average in excess of 40 hours per week, Unum will consider you able to perform that requirement if you are working or have the capacity to work 40 hours per week.
REGULAR OCCUPATION means the occupation you are routinely performing when your disability begins. Unum will look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location.
SICKNESS means an illness or disease. Disability must begin while you are covered under the plan.
INJURY means a bodily injury that is the direct result of an accident and not related to any other cause. Disability must begin while you are covered under the plan.
INDEXED MONTHLY EARNINGS means your monthly earnings adjusted on each anniversary of benefit payments by the lesser of 10% or the current annual percentage increase in the Consumer Price Index. Your indexed monthly earnings may increase or remain the same, but will never decrease. The Consumer Price Index (CPI-W) is published by the U.S. Department of Labor. Unum reserves the right to use some other similar measurement if the Department of Labor changes or stops publishing the CPI-W.
Indexing is only used to determine your percentage of lost earnings while you are disabled and working.
GAINFUL OCCUPATION means an occupation that is or can be expected to provide you with an income at least equal to your gross disability payment within 12 months of your return to work.
ELIMINATION PERIOD means a period of continuous disability which must be satisfied before you are eligible to receive benefits from Unum.
The Plan, Glossary, Administrative Record at 166-69.
3. Torgeson’s treatment history
Torgeson contends that she became “disabled” within the meaning of the Plan on September 19, 2003, the last day she worked full-time with any consistency, when her various conditions worsened to the point that she could no longer work or could no longer work full-time. The court finds that a more coherent picture of Torgeson’s medical conditions and then-impact on her ability to work can be developed “topically,” rather than “chronologically.” Thus, based on Torgeson’s contention that she suffers from fibromyalgia, chronic fatigue syndrome, depression, and migraines, which limited her ability to work, the court will discuss Torgeson’s treatment history in terms of “pain,” “fatigue,” “depression,” and “work restrictions.”
Such a “topical” organization is appropriate, in part, because Torgeson saw a number of physicians, of different specializations and at different institutions, at various, often overlapping times. Thus, a chronological discussion of her treatment could be quite confusing. More specifically, Torgeson saw Dr. R. Bruce Trimble, a rheumatologist, Dr. Mark Johnson, and Physician’s Assistant Lisa K. Hedrick with the Mercy Internal Medicine Clinic in Mason City, Iowa, at times relevant here from September 15, 2003, until March 30, 2004. In November 2003, Torgeson started seeing Dr. Melissa Frame, a gynecologist with the Mercy Women’s Health Center in Mason City, Iowa, after a hiatus of approximately three years since Dr. Frame had last treated her, and Dr. Frame remained her primary physician until July 2004. From 2003 to August 2004, Torgeson saw various doctors at the Mayo Clinic’s Physical Medicine & Rehabilitation Clinic and the Area Medicine Clinic, including Drs. Mark Harold Winemiller, Shabena F. Pasha, and Teresa M. Cuddihy, as well as psychiatrist Jeffrey Rome, and psychologist D.E. Rohe (Ph.D.). From February to September 2004, Torgeson also saw Dr. Dale Armstrong, a psychiatrist with the Mason City Clinic. On July 30, 2004, Torgeson first saw Dr. Charles Caughlan, an internal medicine doctor with Lakeview Internal Medicine in West Des Moines, Iowa. Dr. Caughlan had known Torgeson for about twenty-five years, and it appears that Torgeson turned to him when she was dissatisfied with diagnoses, treatment, or restrictions from other physicians.
a. Pain
Torgeson makes two complaints about chronic or serial pain which she contends worsened about and from the date that she contends that she became “disabled”: fibromyalgia and migraine headaches. There is no dispute — and on this record could be no dispute — that Torgeson suffers from fibromyalgia; indeed, all physicians, treating and reviewing, agree that Torgeson suffers from this condition, and Unum concedes that Torgeson suffers from such a condition. The question is, to what extent is Torgeson’s fibromyalgia limiting? The court will return to that question below, in its legal analysis, after surveying Torgeson’s other medical conditions and the work restrictions that were imposed by her various physicians.
Turning to Torgeson’s migraines, at least as they are pertinent here, Dr. Cuddihy of the Mayo Clinic Area Medicine Clinic prescribed treatments and medications for Torgeson’s migraines in July of 2003. Administrative Record at 421. Dr. Johnson of the Mercy Internal Medicine Clinic in Mason City also noted “migraine headaches” among Torgeson’s conditions on September 25, 2003. Administrative Record at 360. Dr. Frame indicated in her Attending Physician’s Statement to Unum, dated August 5, 2004, that, among other things, Torgeson suffered from migraine headaches. Administrative Record at 28. Similarly, Dr. Trimble noted “headaches” among his diagnoses for Torgeson in his undated Attending Physician’s Statement and in various medical notes. Administrative Record at 188 (physician’s statement), 352 (medical note for January 8, 2004). Thus, the court finds that Torgeson did suffer from migraine headaches, and Unum has not argued to the contrary. The question, again, is whether Torgeson’s migraines were disabling or contributed to a disability within the meaning of the Plan. The court will also consider that question in its legal analysis.
b. Fatigue
Again, there is no dispute — and on this record could be no dispute — that Torgeson suffers from fatigue, even chronic fatigue. The question, however, is whether Torgeson’s “fatigue” is simply “chronic,” and secondary to other conditions from which she suffers, such as fibromyalgia and/or depression, or whether it is, instead, “chronic fatigue syndrome.”
On September 15, 2003, PA Hedrick concluded after an examination that Torgeson was suffering “[fjatigue with a history of fibromyalgia” and focused on appropriate medications to help Torgeson sleep despite pain. Administrative Record at 362-63. Dr. Frame noted in medical records for an office visit and on November 5, 2003, that Torgeson reported “a lot of fatigue,” Administrative Record at 47; on November 19, 2003, that Torgeson was suffering “fatigue due to fibromyalgia” and “tire[d] easily,” Administrative Record at 45; on December 10, 2003, that Torgeson was suffering “fatigue and pain due to her fibromyalgia,” Administrative Record at 43; on January 13, 2004, that Torgeson “complain[ed] primarily now of an overwhelming feeling of exhaustion,” which Dr. Frame thought might be caused, at least in part, by a sleep disorder, Administrative Record at 41-40; on March 2, 2004, that Torgeson had raised the question of whether her persistent cough might be a symptom of “chronic fatigue,” which she raised after “doing some reading,” but Dr. Frame ultimately noted, under “fibromyalgia,” that Torgeson was “unable to perform at her current level because of excessive fatigue and pain,” Administrative Record at 39; and on July 29, 2004, that Torgeson had reported that her fatigue was “progressively worsening” with attempts to work more than three days a week. Administrative Record at 34.
The critical part of Dr. Frame’s notes on the issue of fatigue, however, is the April 6, 2004, note. In that note, under “Subjective,” Dr. Frame made the following observations:
Most of what they are working on [at the Physical Medicine and Rehabilitation Center at the Mayo Clinic] is aimed toward gradually re-integrating Jean back into the work environment. Jean, herself, has been having some concerns about this. She feels as though she is dealing adequately with the pain of her fibromyalgia. She has lea[r]ned a lot through the pain program and feels as though she has made some lifestyle modifications that can accommodate this. Her main concern and problem is her overwhelming fatigue. She feels as though she just cannot force herself to do more than the bear [sic] minimum to get by. She is doubtful that this fatigue is going to resolve significantly and she is wondering how she is ever going to make it through working on a full time basis. Evidentially [sic], the goal of her working with the physicians at Mayo is to gradually get her back into full time work. Jean is very upset because she feels as though her main problem is exhaustion, fatigue, and not pain. She feels as though her condition is more closely allied with chronic fatigue syndrome. She believes that the treatment for chronic fatigue syndrome differs from that of fibromyalgia in that people with chronic fatigue syndrome probably need to do more resting than pushing themselves to action. She feels that this is an important distinction, but she feels as though the provider^] that she has visited with do not understand this. She is wondering how she might be able to get to work with someone who can address this chronic fatigue issue.
Administrative Record at 37. In her “Assessment & Plan” in the April 6, 2004, note, Dr. Frame stated the following:
Chronic fatigue syndrome — I told Jean that I have no problem with using the title of chronic fatigue syndrome for her condition. However, I am not so sure the treatment plan would differ that much between chronic fatigue syndrome and fibromyalgia. I also do not claim to be an expert in this area. It sounds as though she really needs to get involved with a provider who has a clinical interest and expertise in this are[a]. I told her while I am not in a position to put limits on how much she can or cannot work I would write to the Physical Medicine and Rehabilitation doctor that she sees at Mayo to reiterate her concern about this chronic fatigue condition visa-vis whether or not she should work full time. I will try to ask if there is someone on staff at Mayo who has a clinical interest in chronic fatigue and would it be possible for Jean to meet with that person. We will see if this nets any additional help for Jean. I told her that I could not promise much. She is agreeable with [this] plan. She is going to send me information from her most recent Mayo visit.
Administrative Record at 36. Dr. Winemiller at the Mayo Clinic responded to Dr. Frame’s inquiry by reporting that there was no one at the Mayo Clinic with a specialty in chronic fatigue syndrome.
In contrast to Dr. Frame’s uncertainty about the nature of Torgeson’s fatigue problem, and admitted lack of expertise with “chronic fatigue syndrome,” Dr. Caughlan diagnosed Torgeson as suffering from both fibromyalgia and “chronic fatigue syndrome” after only a single visit on July 30, 2004, see Administrative Record at 24 (attending physician’s statement to insurer), and opined that Torgeson was “genuinely disabled.” Id. at 375 (medical record). Indeed, he described Torgeson as having “classic, chronic fatigue syndrome in addition to her fibromyalgia,” but did not elaborate on what symptoms established that “classic, chronic fatigue syndrome” was an appropriate diagnosis. Id.
c. Depression
Just as there is no dispute — and on this record could be no dispute — that Torgeson suffers from fibromyalgia, migraines, and fatigue, there is no dispute — and on this record could be no dispute — that Torgeson suffers from depression. Again, however, the question is whether Torgeson’s “depression” is simply secondary tó other conditions from which she suffers, such as fibromyalgia, or is, instead, a physiological or psychological disorder.
More specifically, Dr. Johnson noted a “possible mood disorder” among Torgeson’s conditions on September 25, 2003. Administrative Record at 360. Similarly, on October 1, 2003, Dr. Trimble stated his “impression” to be that Torgeson was having a “[f]lare in fibromyalgia/depression.” Administrative Record at 357. On January 8, 2004, Dr. Trimble opined that Torgeson’s “[situation [was] complicated by depression,” but that he thought her psychological situation warranted more expert review, and set up a referral appointment with Dr. Armstrong. Administrative Record at 352. In his undated Attending Physician’s Statement for Torgeson, Dr. Trimble also noted “depression” among his diagnoses. Administrative Record at 188. On November 5, 2003, Dr. Frame observed that Torgeson “does have depressive symptoms,” but concluded that she did not have any indications of psychological dysfunctions, Administrative Record at 46-47, and on January 13, 2004, Dr. Frame noted that “depression may be part of the picture at th[at] time,” as well as exhaustion and pain, Administrative Record at 41. Records from the Mayo Clinic’s Pain Rehabilitation Center include frequent references to the extent to which Torgeson was “depressed,” the extent to which her symptoms of depression appeared under control, and the mood stabilization medications that she was taking. Administrative Record at 225-328. More specifically, on February 11, 2004, Dr. Rome of the Mayo Clinic listed among his diagnoses of Torgeson’s conditions “Depression NOS.” Administrative Record at 409. Dr. Rohe, Ph.D., concurred in a medical note from February 15, 2004, listing among his diagnoses “Depressive disorder NOS.” Administrative Record at 413. On January 26, 2004, Dr. Christopher Stetten, Ph.D., performed a Psychological Assessment of Torgeson, in which he found that Torgeson’s score on the Center for Epidemiologic Studies-Depression Scale indicated “minimal depressive symptoms,” and he concluded that Torgeson “has some mild depressive symptoms and frustrations regarding her functioning in the face of chronic pain.” Administrative Record at 332.
Dr. Dale Armstrong, a psychiatrist, saw Torgeson on several occasions from February to September 2004. Administrative Record at 379-82; see also id. at 822-24 (typed transcription by Torgeson of handwritten notes by Dr. Armstrong, with Dr. Armstrong’s corrections and certification of accuracy). Dr. Armstrong noted various comments about, the degree to which Torgeson believed that she was or was not depressed, noted symptoms, and tried various medications, but never stated in those records a specific diagnosis or probable diagnosis of a depressive or other mental disorder. Id.
On November 6, 2004, after Torgeson quit working for MCC, she was evaluated by a psychologist, Dr. Carroll D. Roland, for purposes of an independent examination in support of Torgeson’s application for Social Security disability benefits. Dr. Roland noted that Torgeson “continues to deny significant depression,” but that Torgeson scored a 21 on Beck’s Depression Inventory II (BDI-II), which indicated “moderate depression.” Administrative Record at 653-54. Dr. Roland concluded that Torgeson was “clinically depressed despite the use of Effexor 150 mg a.m.,” adding on Axis I of her diagnosis that Torgeson suffered from a “Major Depressive Disorder, single episode (DSM IV: 296.21).” Id. at 655.
Thus, the record supports the conclusion that Torgeson suffered from depressive symptoms, if not an actual psychological disorder, probably secondary to her fibromyalgia and fatigue, during the entire time at issue here.
d. Work restrictions
There is a series of “return to work notes” in the Administrative Record, which the court will summarize here in chronological order. On September 18, 2003, PA Hedrick, an assistant to Dr. Trimble at the Mercy Internal Medicine Clinic, took Torgeson off work for two to four weeks, because of “increased pain from fibromyalgia, extreme fatigue, chest wall pain, memory and concentration problems, arthralgia, migraine, and exercise intolerance.” Administrative Record at 80. On October 1, 2003, Dr. Trimble authorized Torgeson to return to work on October 13, 2003, three days a week (Monday, Wednesday, and Friday) for two weeks, with the intent that, thereafter, she would gradually return to full-time work “as tolerated.” Administrative Record at 81. On October 30, 2003, Dr. Trimble post hoc authorized Torgeson’s return to “unrestricted full time work 10-27-03.” Administrative Record at 82. On December 10, 2003, however, Dr. Frame of the Mercy Women’s Health Center in Mason City, Iowa, restricted Torgeson to three days of work per week “as tolerated,” “until further notice,” because of “exacerbat[ion]” of her “chronic illness (fibromyalgia).” Administrative Record at 83. On February 13, 2004, Dr. Trimble authorized Torgeson to return to work Monday, Wednesday, and Friday, but required mid-morning and mid-afternoon breaks. Administrative Record at 84. Dr. Trimble modified those restrictions on March 15, 2004, to allow work three days a week for eight hours a day, adding that Torgeson “[sjhould stand no more than 4 h in an 8 h day [and][s]hould have regularly scheduled 15" breaks mid am + mid pm, in add’n to lunch break.” Administrative Record at 85. On March 25, 2004, Dr. Winemiller of the Mayo Clinic authorized Torgeson to return to work “part-time” on March 26, 2004, adding that Torgeson could work “[tjhree days per week (only), [with] [n]o more than 4° standing per 8° shift, 5-10 min sitting (at least) per hour, 1 minute stretch breaks up to 4x/hour, [rjegularly scheduled am/p.m. & lunch breaks, [and][a]lternation of tasks & activities during work shifts,” and noted that these restrictions were “[g]ood through next visit with [him] in 2 months.” Administrative Record at 86. On May 25, 2004, Dr. Winemiller authorized Torgeson to work eight-hour shifts three days per week, plus one five-hour shift, and beginning on May 26, 2004, two five-hour shifts, in addition to the three eight-hour shifts, adding that “[n]o more than 4° standing per shift, [with] one minute stretch breaks 4 x/hour, [and] 3 scheduled breaks per day.” Administrative Record at 87.
Soon thereafter, Torgeson was excused from all work. Specifically, on July 28, 2004, Dr. Kathryn Stolp of the Mayo Clinic excused Torgeson from work from that date to August 4, 2004. Administrative Record at 88. On August 4, 2004, Dr. Winemiller, also of the Mayo Clinic, submitted a work status report stating that Torgeson was unable to work from August 4, 2004, to August 13, 2004, and that “[further work restrictions/releases to be filled out by her new lead physician.” Administrative Record at 89. In clinical notes, however, Dr. Winemiller explained that he was concerned that Torgeson would suffer a “functional decline” if she was completely off work, but when she “implored” him by telephone to write a new set of work restrictions, he did so through August 13, 2004. Administrative Record at 401. In a clinical note from August 2, 2004, Dr. Winemiller also observed that Torgeson had not appeared for a scheduled appointment and that he would wait to see if she wanted to proceed further, adding that he was her second or third opinion, when local doctors were unwilling to write for long-term work restrictions that she was seeking. Administrative Record at 403. The new “lead physician” to whom Dr. Winemiller referred appears to have been Dr. Caughlan, who had actually provided Torgeson with a doctor’s note on July 30, 2004, stating that, in his opinion, Torgeson was “temporarily unable to work for medical reasons,” and that, “at some point in the future she may be able to return to work.” Administrative Record at 90. Torgeson never returned to work at MCC after July 28, 2004.
Notwithstanding Torgeson’s various doctors’ notes limiting her work schedule, Dr. Frame indicated in her Attending Physician’s Statement to Unum, dated August 5, 2004, that “I am not so sure that there is anything that this patient should not do,” although she also noted that Torgeson herself “report[ed] having difficulty sitting or standing for prolonged periods of time,” that Torgeson “reportfed] having memory problems,” and that these restrictions and limitations began “approximately August 6, 2003.” Administrative Record at 28. Dr. Trimble did find in his undated Attending Physician’s Statement that various restrictions.and limitations were appropriate, and, for example, as of February 13, 2004, he released Torgeson only to work part-time in her own occupation, with limitations to eight-hour shifts on Monday, Wednesday, and Friday, brief mid-morning and mid-afternoon breaks, no heavy lifting, and no working long hours without rest. He also indicated that such restrictions and limitations began on August 6, 2003. Administrative Record at 188.
Notwithstanding these restrictions, Dr. Trimble commented on more than one occasion, in Torgeson’s medical notes, that he had told Torgeson that people with fibromyalgia seem to do better if they work full time and that this would be his goal for her. See Administrative Record at 357 (October 1, 2003); id. at 352 (January 8, 2004). On July 16, 2004, Dr. Winemiller, likewise, stressed that returning to work full-time was his recommendation for fibromyalgia and that decisions of fibromyalgia patients not to return to work were made on a “personal basis,” not on the basis of “medical necessity.” Administrative Record at 436; see also id. at 439 (same recommendation March 25, 2004).
Like other physicians before him, Dr. Caughlan, who did not see Torgeson until July 30, 2006, stated in his undated Attending Physician’s Statement, which was faxed to Unum on August 13, 2004, that Torgeson “can’t stand for more than [1/2?] hr, [can’t stand] for more than 4 hours during 8 hr shift, [must] rest for 10 min/hr, [and] must alternate tasks,” and that these restrictions and limitations began August 6, 2003. Administrative Record at 24. In contrast to Dr. Trimble’s and Dr. Winemiller’s assessments, however, Dr. Caughlan also indicated that Torgeson was not released to work at that time at her own occupation or in any occupation, and that the point at which she could return to full- or part-time work was “indefpnite].” Id. Somewhat like Dr. Armstrong, Dr. Roland, who performed the Social Security disability psychological evaluation, observed, “At this point in time, it is doubtful that she would be able to cope with the stress of full-time competitive employment secondary to her fatigue, depression and limited physical stamina.” Administrative Record at 655.
4. Torgeson’s attempts to obtain LTD benefits
a. Application
Shortly after her last day working for MCC, Torgeson filed on August 2, 2004, a claim for LTD benefits pursuant to the Plan. Administrative Record at 20. In her application, in answer to the question, “How does your injury or sickness impede your ability to do your occupational duties?” Torgeson answered, “Exhaustion, pain, migraines make it difficult to preform [sic] the duties of my job.” Id. Her initial application, thus, did not indicate “depression” as a condition limiting her ability to work. Torgeson also did not indicate depression as a condition disabling her or contributing to her disability in an interview with an Unum Customer Care Representative on August 27, 2004, but did indicate that the date she first noticed the conditions was “mid 2003,” and that the last day she worked before becoming disabled was September 19, 2003. Administrative Record at 183-84.
b. Initial review and denial
After assembling Torgeson’s medical records then available (that is, records from Drs. Trimble, Johnson, Frame, Bate, Winemiller, Rome, Armstrong, and Caughlan), and the attending physician statements of Drs. Caughlan, Frame, and Trimble, Unum requested on October 12, 2004, that Jan Herbert, RN, conduct a Clinical Review. Unum asked Nurse Herbert to consider three questions and, if appropriate, forward the case file for further review by a physician. Administrative Record at 585-86. Nurse Herbert’s analysis and conclusions, including her answers to the three questions posed, are set forth in full below:
Analysis of Data and R & Ls [Restrictions & Limitations]
Dr. Frame and Dr. Caughlan have submitted attending physician statements. Dr. Frame’s dated 8/5/04. Dr. Caughlan’s undated. Dr. Frame gives the insured no restrictions and indicates the limitations recorded were the result of the insured’s assessment of her own capabilities. Dr. Caughlan has provided specific r/1, which are significantly confining, and reported to have begun 8/6/04. Hwr, according to the medical records available for review, insured was not in treatment with either of these physicians at the stated date of disability, 9/20/03. Dr. Frame indicated her first visit with insured was 11/5/03, and Dr. Caughlan has stated insured’s first visit with him took place 7/30/04, 10 months after the reported date of disability. Physicians who were treating the insured in the period surrounding 9/20/03, indicated full time work was thought to be both reasonable, attainable, and in the insured’s best interest. The clinical findings appear to be consistent with that position, endorsed by both Dr. Trimble and Dr. Winemiller. Assessments by physicians attending insured at the date of disability are likely to be more credible than conclusions expressed by physicians who examined the insured months later, without first hand knowledge of her physical condition in September 2003. Information in the medical records suggests] the insured reported symptoms of generalized body aches and excessive fatigue as early as 2001; sought treatment from at least 7 physicians, 1 physician’s assistant, and a psychiatrist, over a 3 year period, 2001 to 2004; and often requested specific work restrictions related to hours, days, and task assignment. I was unable to identify clinical evidence consistent with insured’s report of symptoms and functional limitations in examination notes or independent observation. Though insured maintains she is physically incapable of meeting employment obligations, she clearly indicated to Dr. Winemiller her commitment to remaining an active participant in community and church activities. The medical records suggest insured was seeing several physicians concurrently and some of the events documented do not appear to be in proper sequence.
Conclusions:
In response to your questions:
1.[Do the medical records support the claimant’s multiple medical conditions?] The medical records document insured’s report of symptoms consistent with fibromyalgia syndrome and suggestive of chronic fatigue syndrome. Physical examinations noted tenderness in the expected fibromyalgia tender points but did not specify the number of positives vs negatives, or the areas of positive response. Positive ANA was reported by Dr. Caughlan, however, no laboratory studies could be found in support of that assertion. Insured’s lymphoma was described as being in remission, her oncologist stating he did not attribute any of her August 2003 complaints to earlier disease and treatment. Thyroid deficiency is managed with replacement hormone. Independent clinical evidence of additional general medical conditions was not identified.
2. [Do the R & L’s as given per Drs Caughlan, Frame, and Trimble appear consistent with the findings in the medical records?] The r/1 provided by Drs. Frame and Caughlan could not be supported by their clinical findings as neither of them examined the insured at the date of disability. Dr. Trimble’s records indicated insured was released 10/30/03 to return to work with no restrictions. On 1/8/04, he agreed to restrict insured to 3 days of work per week for a short term but did not see that restriction as a long term solution to insured’s issues. Five days later, Dr. Frame wrote in her OV note, “I tend to agree with Dr. Trimble that she should try to push herself as much as possible.” There is no conclusive clinical evidence to support the r/1.
3. [Does a change in the claimant’s work schedule appear consistent with the findings in the medical records?] Changes in the insured’s work hours appear to have taken place at her insistence and based on her reports of pain and fatigue. Insured appears to have been accommodated with part time hours and changes in areas of responsibility, without significant positive result. I found nothing in the clinical evidence to suggest a physiological impairment requiring change of hours.
4. [Please forward to Dr Smith for review, if appropriate.] As r/l[s] do not appear to be supported, forwarding to GM physician worklist for physician review assignment.
Administrative Record at 590-91 (emphasis in the original) (questions interpolated from the request for clinical review, Administrative Record at 585-86).
The physician’s review requested by Nurse Herbert was conducted by Dr. Tony D. Smith, a physician certified in family practice. Dr. Smith’s review concluded with the following observations and answers to the same questions posed to Nurse Herbert:
Based on a review of the records and with a reasonable degree of medical certainty, the current medical records support the following:
Reported migraine headaches — documented as stable on Topamax.
Hypothyroidism- — stable on Synthroid, latest TSH in normal range as of July 2004.
No documented testing, labs, or imaging studies to support the reported pain and fatigue at a level that would support the listed R & L’s.
History of non-Hodgkin’s lymphoma 6/6 years in remission.
No cognitive or neuropsychiatric testing in the file.
Discrepancies and disagreements among the listed attending physicians as to the ability to work and what R & L’s were needed if any.
No GI records or documentation of a functional deficit from IBS (irritable bowel syndrome).
Current psychiatric records do not document any significant functional impairment and no Psychiatrist completed an APS.
Current medical records do not document any significant change in physical exams or testing around the time Ms. Torgeson stopped working or when she went to 3 days a week.
Answer to Questions:
Do the medical records suppox-t the claimant’s multiple medical complaints? Please see the above list and analysis.
Do the R & L’s as given per Drs Caughlan, Frame, and Trimble appear c/w the findings in the medical records? No. Current medical records as discussed above do not document support for the listed R & L’s.
Does a change in the claimant’s work schedule appear c/w the finding’s [sic] in the medical records? No. Current records do not document support for a reduced work schedule or the complete withdrawal from work.
Administrative Record at 603-04 (emphasis in the original).
Following these Clinical Reviews, Unum denied Torgeson’s application for LTD benefits under the Plan by letter dated November 16, 2004. Administrative Record at 625-30. Unum’s denial letter set out the definition of “disability” in the Plan, summarized the medical records, and reiterated Dr. Smith’s statement of what the current records supported, then stated, “[B]ased on the above outlined reasons and the information currently contained in your claim file, we regret that we are unable to accept liability for your request for Long Term Disability benefits.” Id. at 625-29. The remainder of the letter set out the procedures for appeal and further review of that decision. Id. at 629-30.
c. Appeal and further review
By letter dated December 15, 2004, a law firm retained by Torgeson notified Unum of its representation of Torgeson and its “intent to appeal in relation to her claim for disability insurance benefits.” Administrative Record at 639. That letter not only requested all of the documents that Unum had reviewed, but set out the anticipated grounds for Torgeson’s appeal. Torgeson’s attorneys submitted her appeal proper by letter dated March 23, 2005, stating, inter alia, that they “completely disagree[d] with [Unum’s] determination that Ms. Torgeson does not qualify for benefits for the reasons stated in prior communications (See: Letter of December 15, 2004) as well as for the reasons stated [in the March 23, 2005, letter].” Administrative Record at 659. The grounds for Torgeson’s appeal set forth in considerably more detail in her March 23, 2005, letter than in the initial letter notifying Unum of Torgeson’s intent to appeal were the following: over-reliance on the opinions of in-house physicians and failure to adequately consider the medical opinions of treating physicians; failure to consider the co-morbid effects of all of Torgeson’s conditions; and too much emphasis on objective evidence, thereby disregarding disabling, symptoms characteristic of fibromyalgia. Id. at 659-60. In addition, Torgeson’s attorneys contended that Unum’s decision violated the terms of a regulatory settlement agreement (RSA) following a market conduct investigation of UnumProvident Corporation and its subsidiaries and that Unum had, therefore, violated its fiduciary duties. Id. at 659.
Thereafter, Torgeson continued to submit to Unum more medical records that had not been available at the time of Unum’s initial denial of Torgeson’s claim. Those records included records from Dr. Trimble for a visit on September 30, 2004, Administrative Record at 743; office notes from Dr. Caughlan concerning visits on February 10, 2005, and March 9, 2005, Administrative Record at 689-90; Dr. Rolland’s psychological evaluation, Administrative Record at 699-704; a letter from Dr. Frame dated February 4, 2006, offering explanations of some of her medical notes, Administrative Record at 708 (incomplete) & 728-29 (complete); a mental impairment questionnaire completed by Dr. Armstrong on February 14, 2005, Administrative Record at 711-15, and other records from visits to Dr. Armstrong from July 2004 to February 2005, Administrative Record at 748-56. Torgeson also submitted to Unum other support for her claim, including a function report and a personal pain/fatigue questionnaire that she had submitted to the Social Security Administration on January 20, 2005; letters from her pastor, Administrative Record at 707, her mother, Administrative Record at 695-96, and the doctor who had supervised much of her work at MCC, Administrative Record at 693-94; and the decision of the Social Security Administration denying on reconsideration Torgeson’s claim for disability insurance benefits, Administrative Record at 730-33.
On May 11, 2005, Unum referred Torgeson’s medical file for further medical review, indicating “CO-MORBID REV REQ” under “Priority Notes,” and requesting answers to six questions. Administrative Record at 768-69. The first medical review on appeal was performed on May 23, 2005, by Kim Brothers, RN, BSN, ALHC, a senior clinical consultant for Unum. Administrative Record at 793-801. Nurse Brothers’s answers to the six referral questions, including reiteration of the questions themselves, were as follows:
REFERRAL QUESTIONS:
1. Does the claim file reference any unavailable records of treatment that if obtained would provide you with a better understanding of the employee’s clinical status?
No, however Dr. Armstrong’s records are primarily illegible though claimant has typed her interpretation of records. Please obtain certification from Dr. Armstrong that interpretations are accurate and then return file for psych, review. Thank you.
2. Is the diagnosis of fibromyalgia supported?
Yes, diagnosis appears supported based on documentation noted above.
3. If so, please clarify the level of impairment associated therewith (prevents employee from standing, walking, sitting, lifting, how long/much etc).
It is difficult to assess claimant’s level of functionality based on records in file. There appear to be differing opinions regarding claimant’s functionality and associated restrictions. Therefore, I will defer to MD to determine her level of impairment, if any.
4. Does the data support the diagnosis of CFS [chronic fatigue syndrome]?
No, based on records in file the diagnosis of CFS does not appear to be supported. According to the CDC, in order to receive a diagnosis of chronic fatigue syndrome, a patient must satisfy two criteria:
1. Have severe chronic fatigue of six months or longer duration with other known medical conditions excluded by clinical diagnosis, and
2. Concurrently have four or more of the following symptoms: substantial impairment in short-term memory or concentration, sore throat, tender lymph nodes, muscle pain, multi-joint pain without swelling or redness, headaches of a new type, pattern or severity, unrefreshing sleep, and post-exertional malaise lasting more than 24 hours.
The symptoms must have persisted or recurred during six or more consecutive months of illness and must not have predated the fatigue.
Though she has complained of chronic fatigue there is no evidence of substantial impairment in short term memory, sore throat, tender lymph nodes, headaches of a new type, etc. Based on the criteria above, she does not appear to meet the criteria. However, I will defer to MD for further evaluation and comment.
5. Does the record support a loss of functional abilities due to either the diagnosis or treatment? Will defer to MD
6. Do you agree with the R & L’s identified by Dr. Caughlin and [Dr.] Trimble? Will defer to MD
Questions to MD: please respond to questions posed by appeals specialist. Thank you.
“I have reviewed all medical and clinical evidence provided to me by Company personnel bearing on the impairments) which I am by training and experience capable to assess.”
Administrative Record at 800-01.
Upon Nurse Brothers’s referral of the file for further review by a medical doctor, Unum actually requested two independent medical reviews. The first such review was by Dr. Jay G. Kenik, of the Department of Internal Medicine, Division of Rheumatology, at Creighton University Medical Center. Dr. Kenik filed his report with Unum by letter dated June 3, 2005. Administrative Record at 833-39. In his report, Dr. Kenik first identified the records that he had reviewed and Torgeson’s medical history. Administrative Record at 833-36. He then provided the following analysis and answers to the referral questions:
Analysis of the Medical Information
This patient has been diagnosed with fibromyalgia dating back to 2001. The diagnosis is supported by symptoms of myalgias and arthralgias, poor quality of sleep with chronic fatigue, associated depression and cognitive disorders. Additional symptoms have included headaches described as migraines, irritable bowel and bladder, decreased libido and loss of sex drive. Standard blood tests have been otherwise unremarkable including a CBC showing mild leukopenia and SED rates. She had a documented positive ANA, however no other correlative features were identified. Additional labs including thyroid functions on therapy have been in the normal range as have her blood chemistry profiles.
In reference to the referral questions
1. The claim file does not reference any unavailable records that have if [sic] obtained would provide me with a better understanding of the claimant’s clinical status.
2. The diagnosis of fibromyalgia is supported by the information in the medical record. This includes features of myalgias and arthralgias, chronic fatigue with associated poor quality of sleep, headaches, irritable bowel and bladder, as well as the identifications of tender points on exam. In addition the lack of objective inflammatory findings of swelling, warmth, or erythema along with normal sedimentation rates, support this condition.
3. Impairment as a result of fibromyalgia is purely based on subjective reports by the patient. Nothing organically prevents them from standing, walking, sitting, lifting, etc. The majority of patients with this condition remain productive. Many patients do find that repetitive activities especially with the arms extended out in front of them or over them heads do result in symptomatic exacerbations. In addition, repetitive lifting may also be found to be difficult. Patients with this condition may have difficulty with protracted sitting and standing and need to be given the opportunity for periods of rest as well as to get up and move around episodically throughout the day. While patients may have some discomfort with certain activities, it should be made clear that they are not causing themselves more injury. The great majority of physicians as well as those involved in this case agree that it is in the best interest of patients to remain productive in some capacity. I feel the guidelines established by Dr. Winemiller certainly are appropriate for this patient with the ultimate goal to return to work in full capacity.
4. The patient’s current fatigue is that related to her underlying fibromyalgia and not associated with chronic fatigue syndrome as clearly defined. That condition as associated with Epstein Barr Virus should have chronic sore throats and lymphadenopathy along with documented fevers.
5. The record only supports a loss of functional ability based on the subjective reports by the patient. As I interpret the records, the consensus seems [to be] that she should be able to return to work under the guidelines as outlined by Dr. Winemiller. Since 9/03, the only continuous duration, however would be during her hospitalization at the Mayo Clinic (three weeks). I am in agreement with the restrictions and limitations as outlined by Dr. Trimbol [sic] which reflects [sic] that of Dr. Winemiller. I am in disagreement with Dr. Caughlin [sic] that she does not have any work remaining [sic] capacity.
6. The claim filed does not support a loss of functional ability in the cognitive and/or psychological areas as determined by outcomes testing.
I have reviewed all information, records, and data provided to me by the company personnel, bearing on the questions which I am by training and experience able to answer.
Administrative Record at 836-37.
Unum also had Torgeson’s records independently reviewed by Dr. Keith A. Caruso, a consultant in psychiatry and forensic psychiatry. Administrative Record at 863-66. In his initial report, Dr. Caruso also summarized Torgeson’s treatment records, focusing on cognitive and psychological issues. Administrative Record at 863-65. He then provided the following assessment and answers to the questions posed to him:
My Assessment: The record fails to support the diagnosis of Major Depression, although a depressive disorder is suggested.
There is inadequate documentation of symptoms to meet diagnostic criteria for this condition.
What evidence is supplied is inconsistent with regard to the severity of her depressive complaints, which seem to be overshadowed by her Fibromyalgia.
Her condition is repeatedly treated with submaximal doses of antidepressant, which would be inconsistent with a severely disabling Major Depression.
Ms. Torgeson does not appear to support the position that she suffers from impairment due to a depressive disorder.
Her psychiatrist seems to indicate that whatever R & L’s she has are due to an organic condition, rather than a psychiatric disorder.
REFERRAL QUESTIONS:
Does the claim file documentation support a loss of functional abilities in the cognitive and/or psychological areas? Please clarify.
The data provided do not support a loss of functional abilities in cognitive or psychological areas, as detailed above.
Does the claim file reference any unavailable records of treatment that if obtained would provide you with a better understanding of the employee’s clinical status?
No.
Appeals specialist has requested peer to peer phone calls if further clarification is needed from AP [Attending Physician].
A call was placed but I was unable to speak with Dr. Armstrong. I have thus written to Dr. Armstrong for clarification.
I hold the above opinions with a reasonable degree of medical certainty.
Administrative Record at 865-66.
As indicated, Dr. Caruso did write Dr. Armstrong, Torgeson’s treating psychiatrist, on June 13, 2005, to pose the following questions:
My questions are as follows:
1. As records failed to list enough depressive symptoms to meet criteria for Major Depression, what are Ms. Torgeson’s depressive symptoms?
2. Do any of these symptoms result in the impairment that you noted above in their own right or do you see her as impaired by Fibromyalgia with some additional exacerbation by her depressive symptoms?
3. In light of prior neuropsychological assessments that failed to document significant cognitive deficits, on what objective measures do you base your statements that she has impairment in attention and concentration?
4. As your report indicated that Ms. Torgeson would be absent from work on a twice monthly basis, what would you recommend as restrictions and limitations and from what date would these apply?
Administrative Record at 868-69. On July 5, 2005, after receiving a response from Dr. Armstrong to his inquiries, see Administrative Record at 881, Dr. Caruso filed an Addendum to his medical claim analysis, showing some differences in his assessment and answers to referral questions:
My Assessment: The record supports the diagnosis of Major Depression.
Symptoms included insomnia, psycho-motor retardation, tearfulness, dysphoric mood, no energy, decreased concentration, and weight loss.
Her condition is repeatedly treated with submaximal doses of antidepressant, which would be inconsistent with a severely disabling Major Depression.
Ms. Torgeson does not appear to support the position that she suffers from impairment due to a depressive disorder.
Her psychiatrist indicated that Fibromyalgia was her primary problem “with some additional exacerbation by her depressive symptoms.”
Thus, there is not evidence of impairment due primarily to a psychiatric disorder. If a co-morbidity analysis reveals that Fibromyalgia contributes a degree of impairment that is just short of the threshold for significant impairment, then the additional contribution of her depressive symptoms may bring her overall condition to one of significant impairment requiring R & L’s.
REFERRAL QUESTIONS:
Does the claim file documentation support a loss of fundamental abilities in the cognitive and/or psychological areas? Please clarify.
The data provided do not support an independently significant loss of functional abilities in cognitive or psychological areas due to her psychiatric condition alone; if she suffers a degree of impairment close to the threshold for R & L’s due to Fibromyalgia, then a co-morbidity analysis may indicate that the sum total of her symptoms from Fibromyalgia and Major Depression combined may reach significant impairment warranting R & L’s.
Does the claim file reference any unavailable records of treatment that if obtained would provide you with a better understanding of the employee’s clinical status?
No.
Appeals specialist has requested peer to peer phone calls if further clarification is needed from AP.
Task completed.
I hold the above opinions with a reasonable degree of medical certainty.
Administrative Record at 877-78.
Based on these further medical reviews, Unum notified Torgeson’s attorneys (and other interested parties) by letter dated July 26, 2005, that Unum had determined that its original decision to deny Torgeson’s claim was appropriate. Administrative Record at 886-89. The critical portion of the letter stating Unum’s rationale for denying Torgeson’s appeal was the following paragraph:
[T]he record reflects that Ms. Torgeson has had diffuse myalgias and arthralgias for several years prior to ceasing full-time work. She continued to work off and on, with and without an accommodated work schedule. According to Dr. Armstrong, Ms. Torgeson has returned to work at a retail outlet 4-8 hours per week. There is insufficient clinical data to support a change in her condition or data to support that her condition, at the time she ceased work, was of such severity, she was limited from performing her occupation. The record does not clearly indicate why Ms. Torgeson would be incapable of returning to her own occupation as an office Nurse