Hare v. Liberty Life Assurance Company of Boston et al

Filing 31

ORDER denying 17 Motion for Summary Judgment without prejudice. The Court vacates Liberty Life's decision and remands the claim for further evaluation. Signed by Judge D. P. Marshall Jr. on 10/8/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF

RUTH ANN HARE

v.

No. 4:13-cv-87-DPM

LIBERTY LIFE ASSURANCE CO. OF
BOSTON; L'OREAL USA INC.; and
L'OREAL USA LONG TERM DISABILITY
PLAN

DEFENDANTS

ORDER
Hare has received treatment for pain and stiffness associated with
fibromyalgia since she was diagnosed with the condition in 2004. For seven
years she worked, despite the pain, as a chemist helper at L'Oreal. The job
was physically demanding; Hare had to lift heavy objects, climb up and down
stairs throughout the day, and operate big machines. She says a 2011 car
accident increased her fibromyalgia pain to a level that made doing her
chemist-helper job impossible.

For a while, Hare received short-term

disability benefits from the L'Oreal USA Long Term Disability Plan through
Liberty Life- the plan underwriter and administrator. She applied for longterm disability benefits, but Liberty Life denied her application initially and
again on appeal. She sues, seeking the benefits. Given Hare's complaints of
pain, her long-standing diagnosis, and her doctors' opinions that she couldn't

work, did Liberty Life unreasonably deny Hare's application for lack of otl}er
hard evidence?
This ERISA plan gives Liberty Life discretion to interpret it. R. at 41.
Under the circumstances, if Liberty Life's decision is reasonable- if it is
supported by more than a scintilla, but less than a preponderance of the
evidence-the Court won't disturb it. King v. Hartford, 414 F.3d 994, 998-99
(8th Cir. 2005). The Court reduces its deference somewhat, though, because
of Liberty Life's dual role: it decides who gets benefits and pays those benefits
out of its own pocket through a plan-funding insurance policy. Metro Life
Insurance v. Glenn, 554 U.S. 105, 108 (2008).

Objective Evidence. Hare had to prove that she has fibromyalgia, and
that the pain that comes with it makes her unable to perform the material
duties of her occupation. R. at 9. Liberty Life's plan requires Hare to show
her disability by objective evidence, including" chart notes, lab findings, test
results, and x-rays[.]" R. at 15.

For a fibromyalgia diagnosis, objective

evidence comes in the form of an eighteen-point "trigger test." Chronister v .
Baptist Health, 442 F.3d 648, 655 (8th Cir. 2006). A test result supports the

diagnosis if eleven of eighteen particular points on the body are painful when

-2-

pressed.

Brosnahan v. Barnhart, 336 F.3d 671, 672 (8th Cir. 2003).

Dr. Ackerman, a pain specialist who treated Hare, said that she had eleven
tender trigger points," consistent with a diagnosis of fibromyalgia." R. at 142.
And Dr. Jones, a treating rheumatologist, reported that all eighteen of the
points were tender. R. at 106. The record therefore supports the diagnosis.
Of course, not everyone diagnosed with fibromyalgia has disabling pain.
Dr. Jones describes the condition as "typically nondisabling and nondisfiguring." R. at 108. But someone's fibromyalgia pain, if severe enough,
could keep them from doing their job. Morgan v. UNUM Life Insurance Co. of
America, 2002 WL 31095391 at*5 (D. Minn. 2002)(collecting cases); Atkinson v.
Prudential Insurance Co. of America, No. 3:05-cv-140-JLH, NQ 28 at 12-14 (E.D.

Ark. 14 June 2006).
No conclusive objective evidence exists that Hare's pain is disabling.
Dr. Arnold, Hare's longtime physician, reported that Hare's cervical and
lumbar range of motion are painful, R. at 521, but indicated that otherwise
Hare is pain-free, has normal motor strength, and no swelling or atrophy.
Ibid. This somewhat undercuts his alternative conclusions that Hare may

never be able to work again under any circumstances or that she would be

-3-

severely limited in what she could do at work.

R. at 119 & 516-518.

Dr. Ackerman (the pain specialist) reported that Hare had no pain with range
of motion of the cervical spine or lumbar spine and normal movement in all
extremities. R. at 147. He instead noticed painful range of motion in Hare's
hands, shoulders, hips, and knees. Ibid. He concluded that Hare should stop
working permanently because of her whiplash disorder, rather than her
fibromyalgia. R. at 145.
The two doctors' opinions, without objective evidence for support,
aren't conclusive. Darvell v. Life Insurance Co. of North America, 597 F.3d 929,
935 (8th Cir. 2010). The proof on the pain issue is too thin. Liberty Life
therefore didn't err by minimizing the weight given Dr. Arnold's and Dr.
Ackerman's opinions, or by concluding that objective evidence didn't support
a finding of disabling pain. Setting these doctors' conclusions aside, however,
Liberty Life's analysis was incomplete.
Subjective Evidence. Fibromyalgia isn't like other disabling conditions;

there's an objective test to diagnose it, but the associated pain for any given
person is subjective. Only Hare knows how much she hurts, and whether that
pain is disabling. Under this circumstance, "it would not be reasonable for

-4-

[Liberty Life] to rely solely upon objective evidence in assessing [Hare's] level
ofimpairment." Atkinson, No. 3:05-cv-140-JLH, NQ 28 at 12-14;Abram v. Cargill,

Inc., 395 F.3d 882, 887 n.3 (8th Cir. 2005). Hare's complaints of pain, and her
credibility in making those complaints, need to be addressed.

She has

received treatment for fibromyalgia pain for nearly a decade. The plan
administrator has never suggested she was malingering or exaggerating.
Because of her positive diagnosis, Liberty Life erred by not addressing Hare's
complaints of pain, whether those complaints are credible, and if so, whether
the pain is disabling.
Reviewing Physician. Liberty Life's denials leaned on the opinion of

a reviewing physician- Dr. Shatzer. Liberty Life isn't obligated to give less
weight to Dr. Shatzer because he is a non-treating physician. McGee v.

Reliance Standard Life Ins. Co., 360 F.3d 921, 925 (8th Cir. 2004). But, as with
Drs. Arnold and Ackerman, the plan administrator can't accept Dr. Shatzer's
opinions "without considering whether [his] conclusions follow logically
from the underlying medical evidence." Abram, 395 F.3d 887.
Dr. Shatzer disagreed that the record supported Hare's fibromyalgia
diagnosis. R. at 311. He concluded that Hare suffered only" chronic pain and

-5-

a very mildly decreased range of motion of the cervical spine secondary to
degenerative disease of the cervical spine." R. at 314. In his report, he made
only passing mention of Dr. Jones's objective pain findings, and concluded
that there were" no physical examination findings which support diagnosis."
R. at 314. Dr. Shatzer didn't review Dr. Arnold's reports, including the

positive trigger-point test. NQ 21 at 12 n. 14. He overlooked Dr. Ackerman's
trigger-point test results too. And his report misstated Dr. Ackerman's
diagnosis- Dr. Ackerman never concluded that Hare didn't have
fibromyalgia; he concluded only, that on a particular visit, she didn't show
fibromyalgia symptoms. Compare R. at 311 with R. at 149. Dr. Shatzer's
misstatement, and his misfire on the diagnosis, are important given the
emphasis Liberty Life placed on his opinions.

R. 78 & 314.

The plan

administrator erred by giving those opinions too much weight. On remand,
Liberty Life should reconsider Dr. Shatzer's conclusions with an eye to the
objective evidence supporting Hare's diagnosis and undermining Shatzer's
conclusions.
Specialist. Whether Liberty Life should have consulted a fibromyalgia

specialist to review Hare's record is an open question. 29 C.F.R. § 2560.503-

-6-

1(h)(3)(iii); Morgan v. UNUM Life Insurance Co. ofAmerica, 346 F.3d 1173,1178
(8th Cir. 2003); Atkinson, No. 3:05-cv-140-JLH, NQ 28 at 12-13. Liberty Life is
right, to an extent, that there is little objective evidence that needs clarification;
many of Hare's test results were within normal ranges. NQ 21 at 12. But given
Hare's diagnosis, and in light of the subjective nature of fibromyalgia pain, a
specialist could provide needed clarity, for both parties, about whether Hare's
condition is disabling.

* * *
Hare's motion for judgment, NQ 17, is denied without prejudice. But the
Court vacates Liberty Life's decision and remands the claim for further
evaluation. Liberty Life should consider Hare's complaints of pain, evaluate
her credibility, and determine whether the whole record shows that she is or
is not able to perform the material duties of her job.
So Ordered.

D.P. Marshall Jr.
United States District Judge

-7-