Ashima James v. Liberty Life Assurance Co.

Filing

OPINION filed : AFFIRMED, decision not for publication. Eugene E. Siler , Jr., Circuit Judge (AUTHORING) ; Raymond M. Kethledge, Circuit Judge and Michael H. Watson, U.S. District Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0689n.06

FILED

Case No. 13-2625
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ASHIMA JAMES,
Plaintiff-Appellee,
v.
LIBERTY LIFE ASSURANCE COMPANY
OF BOSTON,
Defendant-Appellant.

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Sep 04, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN

BEFORE: SILER and KETHLEDGE, Circuit Judges; WATSON, District Judge.*
SILER, Circuit Judge. Following an automobile accident, Ashima James was denied
long-term disability benefits under her group disability insurance policy issued by Liberty Life
Assurance Company of Boston (“Liberty Life”) to her employer DTE Energy (“DTE”). James
filed this action against Liberty Life pursuant to the Employees Retirement Income Security Act
(“ERISA”), and the district court awarded James long-term disability benefits. We AFFIRM.
BACKGROUND
I.

James’s Disability Insurance
As a full-time employee of DTE, James was a participant in the Welfare Benefit Plan and

was insured under the DTE Group Disability Income Policy (the “Policy”), which was issued by
*

The Honorable Michael H. Watson, United States District Judge for the Southern District of
Ohio, sitting by designation.

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Liberty Life. In order to be eligible for long-term disability benefits during the first 24 months,
the Policy employs an “Own Occupation” standard; namely, the claimant must be “unable to
perform the Material and Substantial Duties of his regular occupation or any other occupation
with the company for which the [claimant] is qualified and which is offered at not less than their
current rate of pay.” After the 24-month period, a claimant may be eligible for continued benefits
if she “is unable to perform, with reasonable continuity, the Material and Substantial Duties of
Any Occupation.” The Policy defines “Any Occupation” as “any occupation that the [claimant]
is or becomes reasonably fitted by training, education, experience, age, physical and mental
capacity” to perform. The Policy also contains a 24-month maximum period for benefits where
the claimant’s disability is due to mental illness.
A claimant seeking long-term disability benefits must produce proof of disability to
qualify under the Policy. The Policy defines “Proof” as:
the evidence in support of a claim for benefits and includes, but is not limited to,
the following:
1. a claim form completed and signed (or otherwise formally submitted) by the
[claimant] claiming benefits;
2. an attending Physician’s statement completed and signed (or otherwise
formally submitted) by the [claimant’s] attending Physician; and
3. the provision by the attending Physician of standard diagnosis, chart notes, lab
findings, test results, x-rays and/or other forms of objective medical evidence
in support of a claim for benefits.
II.

James’s Accident and Resulting Medical Treatment and Examinations
On August 4, 2011, while on short-term medical leave for a surgery not relevant to this

appeal, James was a passenger in a vehicle that was rear-ended by another vehicle. She was
taken to an emergency room and the following day saw her primary care physician, Dr. Robert
Chang, board-certified in internal medicine, who advised her to take off work for at least two

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weeks because of “strain to her thoracic spine and chest wall, contusions and strain.” He then
referred her to a host of specialists throughout her treatment.
Dr. Thomas Nabity, who is board-certified in physical medicine and rehabilitation,
treated James from August 2011 to February 2012. During his consult examination, Dr. Nabity
found “worrisome” right shoulder pain with limited movement and ordered a magnetic resonance
imaging (“MRI”) of the rotator cuff. He also diagnosed her with thoracic myofascial pain and
anxiety attacks. He recommended James receive a formal psychiatric diagnosis and start physical
therapy. He later ordered an MRI of her cervical spine because of James’s further complaints of
pain. The MRIs revealed a right shoulder labral tear, supraspinatus tendonitis, and cervical
degenerative arthritis with moderate to severe foraminal stenosis and mass effect on the cord. Dr.
Nabity began administering epidural injections after James complained of worsening neck pain
following an attempt to return to work. The injections improved her neck pain at first; however,
her pain eventually returned and, according to Dr. Nabity, was “as severe if not more severe than
before.” Throughout his treatment, he continually found that James was unable to return to work.
James was also referred to Dr. Cheryl Mazzara, a board-certified psychiatrist, who treated
her from November 2011 to June 2012. Dr. Mazzara originally diagnosed James with major
depressive disorder, single episode, moderate, and generalized anxiety disorder. She later
diagnosed James with major depressive disorder, recurrent, severe without psychotic features,
and generalized anxiety disorder, and retained this diagnosis throughout her treatment.
At DTE’s request, two doctors also conducted independent medical examinations
(“IMEs”) of James. First, on October 11, 2011, Dr. Shlomo Mandel, board certified in
occupational, internal, and environmental medicine, examined James and issued an IME report
to DTE. Dr. Mandel found tenderness in James’s paracervical and trapezius region, as well as

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“very limited” range of motion in the cervical spine “with significant decrease in flexion and
extension, as well as rotation and side bending bilaterally.” Dr. Mandel found that her
“[p]hysical examination [was] remarkable for extensive subjective difficulty, with very little
range of motion of the shoulders and essentially no grip measured in the right compared to the
left upper extremity.” However, he concluded that, while “there [were] a great deal of subjective
findings” and James’s prognosis was fair, there was an “absence of any objective clinical
findings to substantiate her ongoing complaints,” and James could return to work without
limitation.
Second, psychiatrist Dr. Saul Forman examined James on two occasions. In his first IME
report in October 2011, Dr. Forman diagnosed James with posttraumatic stress disorder
(“PTSD”), acute, with depression, and found that her prognosis was fair. However, he concluded
that, “[f]rom a psychiatric point of view, she [was] able to work without restriction.” Then, in his
second IME report in December 2011, Dr. Forman changed his opinion and found James unable
to return to work. During his examination, he asked James to complete a Beck Depression
Inventory test, which indicated that James had significant depression. Dr. Forman diagnosed
James with mood disorder due to general medical condition with severe depression, major
depressive disorder, single episode, and PTSD with depression.
III.

James’s Application for Long-Term Disability Benefits
DTE paid James’s six-month short-term disability benefits through February 24, 2012,

without objection. However, on March 2, 2012, Liberty Life denied James’s claim for long-term
disability benefits, finding that she did not meet the “own occupation” definition of disability
under the Policy. In addition to considering the results of the IME reports of Drs. Mandel and
Forman, Liberty Life also supported its decision with the reports of two doctors who conducted

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file reviews but did not personally examine James. Dr. Thomas Gratzer, board-certified forensic
psychiatrist, and Dr. Jaime Foland, board-certified in physical medicine and rehabilitation and
pain medicine, submitted a joint report of their findings from the file review.
After listing what medical documents he had reviewed, Dr. Gratzer found “a lack of
objective evidence to indicate that Ms. James was psychiatrically impaired, limited, or
restricted,” and that “[t]he treatment records almost exclusively focus on Ms. James’[s] physical
complaints.” He stated that Dr. Mazzara had noted a comorbid diagnosis of major depression. He
also discredited Dr. Forman’s finding of psychiatric disability based on a high Beck Depression
Inventory score because the test was a self-report and not an objective measure. He then found
that James was not psychiatrically disabled because her subjective complaints were not
supported by objective mental status exams, psychological testing, or documentation.
Dr. Foland likewise reviewed medical documents and diagnosed James with right
shoulder pain due to mild osteoarthritis and degenerative changes and suggestion of a tear in her
shoulder. Dr. Foland concluded that, from a physiatrist’s perspective, James could return to work
with restrictions on reaching above shoulder level with her right arm, carrying more than ten
pounds, and on extending her cervical spine beyond neutral. While the doctors agreed that James
could return to work, they disagreed on the impact of James’s comorbid diagnosis. Dr. Gratzer
found that James did not have a comorbid diagnosis impacting her impairment, but Dr. Foland
found that her anxiety and depression impacted her physical impairments.
Liberty Life further supported its decision with an occupational analysis and vocational
review by a vocational rehabilitation consulting company, which found that James’s work was
performed in a sedentary capacity. As a result, Liberty Life found that James was able to perform
the material and substantial duties of her occupation within the restrictions given by Dr. Foland.

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IV.

James’s Administrative Appeal
In August 2012, James filed an administrative appeal of Liberty Life’s decision to deny

her long-term disability benefits under the Policy and added updated records from Drs. Chang
and Nabity, as well as new records from Dr. Christine Liff, a neuropsychologist, and Dr. Violette
Henein, a rheumatologist.
Dr. Liff met with James on two occasions in June and July 2012 to conduct a
neuropsychological evaluation of James. She found that James had “grossly intact cognitive
functioning” but found that James’s “self-report of depression, anxiety, and persistent pain,
coupled with her variable performance on select tasks during testing, suggest[ed] that her
emotional and physical distress and reduced coping skills [were] negatively affecting her
cognitive abilities.” Dr. Liff diagnosed James with adjustment disorder with mixed anxiety and
depressed mood and pain disorder. Dr. Henein also met with James on two occasions in May and
June 2012. She diagnosed James with inflammatory arthritis based on lab results, as well as
cervicalgia neck pain, bursitis and tendinitis of the shoulder, and polyarthralgia. However, Dr.
Henein found that James’s spine did not exhibit mysofascial trigger points and that the spine and
shoulder had full range of motion.
Liberty Life then solicited two additional doctors for file reviews. Dr. Sarah Deland,
board-certified in psychiatry and neurology, and Dr. Steven Lobel, board-certified in physical
medicine and rehabilitation/pain medicine, reviewed James’s file and agreed that the
documentation did not support impairment, restrictions, or limitations from each of their
respective specialties.
Dr. Deland found that James was not disabled from a psychiatric perspective based on the
provided medical evidence, despite finding supportable diagnoses of major depressive episode

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and generalized anxiety disorder. She exchanged messages with Dr. Mazzara, who stated that
James’s “primary disability is medical, not psychiatric,” although Dr. Mazzara also reported that
she believed James could not work. Dr. Deland noted that all of Dr. Mazzara’s mental status
examinations indicated normal thought processes, satisfactory concentration, and no memory
problems, despite any self-reports of impairment to the contrary. Dr. Lobel found that the
medical records supported diagnoses of tendinosis, labral tear, and cervical stenosis, and that
James’s self-reported pain in the neck and shoulder were “reasonable given the [MRIs].”
However, he found inconsistencies between James’s self-reports of pain, the MRIs, and her
symptoms and concluded that the medical evidence did not support impairment or the need for
restrictions or limitations.
Liberty Life denied James’s appeal, citing a lack of objective evidence that James’s
conditions precluded her from performing her job.
V.

James’s Civil Complaint
James then filed this action for long-term disability benefits against Liberty Life pursuant

to 29 U.S.C. § 1132(a)(1)(B), a civil enforcement provision of ERISA. The district court entered
judgment in James’s favor and granted her long-term disability benefits under the two-year ownoccupation coverage retroactive to February 24, 2012, and effective through February 24, 2014.
The court found that the preponderance of the evidence in the administrative record supported a
finding that James was disabled from performing her regular occupation.
The court found that “the principal weakness of Liberty’s evidence against disability is
that the doctors who reviewed James’s file did so from either a physical pain/rehabilitation
perspective or a psychological perspective, not both.” It held that, while “neither her physical nor

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psychological impairments, standing alone, [were] disabling,” James’s disability claim was
validated by the comorbidity of her condition.
The court declined to address whether James would qualify under the “any occupation”
coverage and whether the “mental health symptoms” rider applied because these issues would be
not be ripe until February 24, 2014, and would potentially involve a different or expanded
administrative record. It therefore remanded these issues to Liberty Life for consideration.
STANDARD OF REVIEW
Where an ERISA plan grants a plan administrator discretionary authority to determine
eligibility for benefits or to construe the plan terms, we would review the denial of benefits under
the “highly deferential arbitrary and capricious standard of review.” Evans v. UnumProvident
Corp., 434 F.3d 866, 875 (6th Cir. 2006) (internal quotation marks and citation omitted).
However, the parties agreed at the district court level and here that our standard of review is de
novo. Therefore, like the district court, we review the record that was before the plan
administrator de novo, without giving deference to the administrator’s decision or any
presumption of correctness. See Perry v. Simplicity Eng’g, a Div. of Lukens Gen. Indus., Inc.,
900 F.2d 963, 966 (6th Cir. 1990).
DISCUSSION
Liberty Life requests we vacate and reverse the district court’s judgment in favor of
James. However, we agree with the district court’s determination that the preponderance of the
evidence in the administrative record supports a finding that James was disabled within the
meaning of the Policy. The record supports a finding that James was suffering from a comorbid
diagnosis of physical ailments complicated and amplified by psychiatric disorders that prevented

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her from performing her regular occupation. Therefore, she was entitled to receive benefits under
the Policy from February 24, 2012, to February 24, 2014.
As a preliminary matter, Liberty Life argues that the district court erred in giving more
weight to James’s treating physicians’ opinions than its consulting physicians because, under
Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003), treating physician opinions
are not entitled to any special weight. The district court found the opinions of Drs. Nabity and
Mazzara “[m]ost weighty” because they were James’s most frequently-visited treating
physicians. The court then assigned less weight to the IME opinion of Dr. Mandel for
discrediting all subjective findings and even less weight to the file reviews of Drs. Foland,
Gratzer, Lobel, and Deland, who “only purported to evaluate James’s file from a purely physical
pain or psychiatric perspective, not both.”
While there is “nothing inherently objectionable about a file review by a qualified
physician in the context of a benefits determination,” Calvert v. Firstar Fin., Inc., 409 F.3d 286,
296 (6th Cir. 2005), “[w]hether a doctor has physically examined the claimant is indeed one
factor that we may consider” in determining whether a claimant is entitled to benefits under a
plan. Kalish v. Liberty Mut./Liberty Life Assur. Co. of Boston, 419 F.3d 501, 508 (6th Cir.
2005).1 Therefore, while we cannot “require administrators automatically to accord special
weight to the opinions of a claimant’s physician,” Nord, 538 U.S. at 834, we can ourselves
consider the administrator’s reliance on file reviews. Calvert, 409 F.3d at 295; see also Smith v.
Bayer Corp. Long Term Disability Plan, 444 F. Supp. 2d 856, 873-74 (E.D. Tenn. 2006), aff’d in

1

Although the de novo standard of review applies in this case, we find case law applying the
arbitrary and capricious standard to be persuasive for evaluating the same or similar issues. See
Pierzynski v. Liberty Life Assur. Co. of Boston, No. 10-14369, 2012 WL 3248238, at *4 (E.D.
Mich. Aug. 8, 2012) (“While the arbitrary and capricious standard does not apply in this case, the
Court finds this case law persuasive in evaluating conclusory independent medical reports.”).
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part, vacated in part, 275 F. App’x 495 (6th Cir. 2008) (attaching little significance to file
reviews in the context of psychiatric evaluations because the specialty is dependent upon
interviewing and spending time with patients).
The district court did not improperly weigh the various physicians’ opinions. At most, the
court regarded the fact that the file reviewers did not physically examine James as a factor in its
consideration. However, the court’s explicit reason for giving less weight to the file reviewers’
opinions was that they took piecemeal approaches to their evaluations, instead of holistically
viewing James’s comorbid conditions. Therefore, the lack of physical examination was not
determinative for the court on discounting the file reviewers’ opinions.
Having determined that the district court did not improperly weigh the various physician
opinions, we find that the proof produced by James established by a preponderance of the
evidence that she was entitled to long-term disability benefits under the regular occupation
standard of the Policy, first, because the weight of the evidence favors a finding that James was
disabled and, second, because James produced ample subjective and objective evidence that she
was unable to return to work.
First, the weight of the evidence favors a finding that James was disabled. Importantly,
Drs. Nabity and Mazzara, who treated James over a period of months and who were able to
monitor her progress and setbacks, were in agreement that James could not return to work. Dr.
Nabity continually found that James was unable to return to work because of the injuries to her
shoulder and spine and the resulting pain. He recommended James undergo a psychiatric
evaluation because he recognized symptoms of anxiety. He also treated James after her
attempted return to work, noting that she could not complete the first day because she “had
severe pains radiating from her neck into her arms” and that “she [] had worsening pain ever

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since.” Dr. Mazzara noted no history of psychiatric disorders prior to the accident and diagnosed
James with depression and anxiety throughout her treatment. While she indicated that James’s
primary disability was medical, she told Dr. Deland she did not think James could return to
work.
Likewise, Dr. Henein, who met with James on two later occasions, confirmed injuries to
her shoulder and spine and diagnosed James with inflammatory arthritis. Dr. Liff, who also met
with James twice, found that James suffered from anxiety and depression and that her emotional
and physical distress were negatively affecting her cognitive abilities. Therefore, each of James’s
treating physicians independently diagnosed James with psychical and psychiatric disorders
traceable to the injuries she sustained to her shoulder and spine in the automobile accident.
In contrast, the physician opinions relied upon by Liberty Life in denying James benefits
are inconsistent in concluding that James was not entitled to disability benefits. After examining
James on behalf of DTE, Dr. Mandel found no objective clinical findings to substantiate James’s
complaints and that she could return to work without restrictions. However, he found her
examination to be “remarkable” for extensive subjective difficulty, wherein James demonstrated
very little range of motion and “essentially no grip” in her right arm. Therefore, Dr. Mandel
concluded that there were no objective indicators of disability, despite his in-person observations
that James had a fair prognosis and limited use of her injured arm.
Liberty Life also reviewed the psychiatric examinations conducted by Dr. Forman on
behalf of DTE, wherein Dr. Forman first found James able to return to work, despite diagnosing
her with PTSD and depression. After conducting a Beck Depression Inventory test, however, Dr.
Forman found James to be severely depressed and to again be suffering from PTSD as a result of
the accident, thereby disabling her from returning to work.

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The conclusions of Liberty Life’s file reviewers were likewise erratic in their
observations and conclusions. Dr. Gratzer found that James was not psychiatrically disabled
because her subjective complaints were not supported by objective mental status exams,
psychological testing, or documentation, and discredited Dr. Forman’s use of the Beck
Depression Inventory test because it was a self-report tool. However, psychiatrists typically treat
symptoms that are subjective and must rely on a patient’s subjective descriptions to evaluate and
diagnose the patient. See Smith, 444 F. Supp. 2d at 873 (quoting Sheehan v. Metro. Life Ins. Co.,
368 F. Supp. 2d 228, 254-55 (S.D.N.Y. 2005)). Therefore, the use of a subjective self-report tool
to make objective psychiatric findings should not have been discredited. Then, Dr. Foland
acknowledged that James’s MRIs documented actual injuries but concluded that she could return
to work with restrictions. In their joint report, Dr. Gratzer found that James did not have a
comorbid diagnosis, but Dr. Foland disagreed, finding that James’s anxiety and depression
impacted her physical impairments. However, Dr. Foland concluded that “[f]rom a physiatrist’s
perspective [James could] return to work.”
Dr. Deland found that James was not psychiatrically disabled, despite supportable
diagnoses of depression and anxiety, because her mental status examinations rendered normal
results. Dr. Lobel found that James was not physically disabled by her injuries because of
inconsistencies between the subjective and objective evidence, despite explicitly finding that
James’s self-reported pain was congruent with the MRI results. Therefore, each of the file
reviewers concluded that James was able to return to work, despite their findings to the contrary.
Perhaps more troubling, the file reviewers’ piecemealed medical opinions all overlooked
the comorbidity of James’s diagnosis. The joint reports of Drs. Gratzer and Foland and Drs.
Deland and Lobel each purported to analyze whether James was disabled from a psychiatric or a

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physical pain standpoint, not from a holistic view. Despite their designation as “joint” reports,
the physicians’ opinions fail to recognize each other’s findings, whereas James’s treating
physicians considered the physical injuries and the psychological consequences, as demonstrated
by Dr. Chang’s referral to multiple doctors, Dr. Nabity’s recommendation that James seek
psychiatric treatment, and Dr. Mazzara’s recognition that James’s disability was primarily
physical. Dr. Foland even recognizes that James has a comorbid diagnosis, wherein her
psychiatric impairments are affecting her physical impairments, but then finds James could work
from a purely physical perspective.
Furthermore, on appeal, Liberty Life continues to structure its argument that James is not
disabled by discussing her physical condition and psychiatric condition separately. It argues that
“there is no evidentiary support for the District Court’s [] conclusion that the cause for Ms.
James[’s] disability claim is ‘co-morbid[.]’” We can only assume from its use of quotation marks
and the addition of a hyphen that Liberty Life is claiming that the concept of comorbidity is
novel. However, courts within our circuit have discussed comorbid conditions in the context of
ERISA claims for disability benefits. See, e.g., Eastin v. Reliance Standard Life Ins. Co., No.
2012-140 (WOB-CJS), 2013 WL 4648736 (E.D. Ky. Aug. 23, 2013) (slip copy). Moreover,
Liberty Life specifically asks their file reviewers whether a claimant has a comorbid diagnosis
impacting the claimant’s impairment, thereby acknowledging the importance of reviewing a
claimant’s disability as a whole.
Second, James produced ample subjective and objective evidence that she was unable to
return to work. Throughout its argument, Liberty Life stresses the lack of objective evidence
produced by James and the requirement of such evidence under the Policy. However, the Policy
does not require the claimant to only produce objective evidence. Under the plain language of the

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Policy, proof “includes, but is not limited to . . . forms of objective medical evidence.”
Therefore, evidence beyond the enumerated categories that Liberty Life considers objective is
allowable to substantiate a claim of disability under the Policy. See Pierzynski v. Liberty Life
Assur. Co. of Boston, No. 10-14369, 2012 WL 3248238, at *4 (E.D. Mich. Aug. 8, 2012)
(interpreting the same Liberty Life Policy language to allow objective and subjective evidence
for proof); see also Schwarzwaelder v. Merrill Lynch & Co., Inc., 606 F. Supp. 2d 546, 563
(W.D. Pa. 2009) (finding it unreasonable to reject subjective evidence where the applicable
policy does not restrict the type of evidence that may be used to demonstrate disability).
Moreover, other courts considering this issue have found it inappropriate for an
administrator to dismiss a claimant’s self-reports and other subjective evidence of disability,
particularly where the administrator has no basis for believing the evidence is unreliable. See
Schwarzwaelder, 606 F. Supp. 2d at 562-63 (gathering cases). Liberty Life did not have an
indication that James’s subjective evidence was unreliable, but in fact had many reasons to credit
her self-reports. Dr. Foland found physical injuries that required restrictions upon James’s return
to work, and Drs. Forman and Deland found her psychiatric diagnoses supportable. Dr. Lobel
even specifically found that James’s self-reports of pain were “reasonable given the [MRIs].”
Furthermore, some aspects of James’s comorbid diagnosis are not capable of
confirmation through objective indicators. Complaints of pain necessarily are subjective as they
are specific to the patient and are reported by the patient. See Pierzynski, 2012 WL 3248238 at
*4.2 Psychiatric opinions are also inherently subjective. See Westphal v. Eastman Kodak Co., No.
05-CV-6120, 2006 WL 1720380, *4-5 (W.D.N.Y. June 21, 2006) (finding that psychiatric

2

Even so, we again emphasize that the majority of the physicians were able to tie James’s
complaints of pain to specific injuries, including Dr. Lobel, who agreed that James’s self-reports
of pain correlated to the MRI results.
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diagnosis is inherently subjective because a proper diagnosis requires a personal evaluation of
the patient’s credibility and affect).

Unlike most doctors treating physical symptoms, a

psychiatrist must treat a patient’s subjective symptoms by interviewing the patient and spending
time with the patient so as to understand and treat the subjective symptoms described by the
patient. See Smith, 444 F. Supp. 2d at 873 (quoting Sheehan, 368 F. Supp. 2d at 254-55).
Even setting aside the subjective evidence, James produced sufficient objective evidence
to qualify for disability benefits under the Policy. In her application, James produced MRIs,
records of her physical examinations, chart notes, lab and other test results, and physician
diagnoses, all of which qualify as objective medical evidence under the Policy.
AFFIRMED.

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