Decorpo v. Unum Life Insurance Company of America

Filing 14

///ORDER granting 12 Defendant's Motion for Judgment on the Administrative Record; denying 11 Plaintiff's Motion for Judgment on the Administrative Record. Clerk shall enter judgment and close the case. So Ordered by District Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Patricia A. Decorpo
v.

Civil No. 13-cv-484-LM
Opinion No. 2014 DNH 203

Unum Life Insurance Company
of America

O R D E R
The Plaintiff, Patricia A. Decorpo (“Decorpo”), has brought
this action under the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. § 1001 et seq., to challenge a
decision by the Defendant, Unum Life Insurance Company of
America (“Unum”), to terminate her long-term disability
benefits.

Unum has filed a counterclaim seeking the return of

some $7,200 that it suggests was overpaid to Decorpo.

Both

parties have moved for judgment on the administrative record.
For the reasons that follow, Decorpo’s Motion for Judgment on
the Record is DENIED and Unum’s Motion for Judgment on the
Administrative Record is GRANTED.

Nevertheless, the court finds

that Unum is entitled to recover only a portion of the
overpayment.

Legal Standard
In ERISA cases, courts are called upon to “evaluate the
reasonableness of an administrative determination in light of
the record compiled before the plan fiduciary.”
Raytheon Co., 315 F.3d 11, 18 (1st Cir. 2002).

Leahy v.
Thus, this court

sits more as an “appellate tribunal than as a trial court.”

Id.

Where, as here, the ERISA plan “gives the plan administrator
discretionary authority to interpret the terms of the plan and
to determine a claimant’s eligibility for benefits, [courts]
will uphold the decision unless it is arbitrary, capricious, or
an abuse of discretion.”

Tsoulas v. Liberty Life Assurance Co.

of Bos., 454 F.3d 69, 76 (1st Cir. 2006).

Thus, a plan

administrator’s decision “must be upheld if there is any
reasonable basis for it.”

Madera v. Marsh USA, Inc., 426 F.3d

56, 64 (1st Cir. 2005).
But, “[t]his deferential standard of review . . . is not
entirely without teeth – it requires that a determination by a
plan administrator ‘must be reasoned and supported by
substantial evidence.’”

Ortega-Candelaria v. Johnson & Johnson,

755 F.3d 13, 20 (1st Cir. 2014) (quoting Colby v. Union Sec.
Ins. Co. & Mgmt. Co. for Merrimack Anesthesia Assocs. Long Term
Disability Plan, 705 F.3d 58, 62 (1st Cir. 2013)).

Evidence is

deemed substantial when it is “reasonably sufficient to support

2

a conclusion.”

Cusson v. Liberty Life Assurance Co. of Bos.,

592 F.3d 215, 230 (1st Cir. 2010) (quoting Wright v. R.R.
Donnelley & Sons Co. Grp. Benefits Plan, 402 F.3d 67, 74 (1st
Cir. 2005)).

Ultimately, the question for a reviewing court is

whether the plan administrator “had substantial evidentiary
grounds for a reasonable decision in its favor.”

Ortega-

Candelaria, 755 F.3d at 20 (quoting Matías-Correa v. Pfizer,
Inc., 345 F.3d 7, 12 (1st Cir. 2003)).
Factual Background1
Decorpo, currently 52 years old, was employed as a legal
secretary with the New Hampshire Public Defender (the “NHPD”)
from October 2002 to August 2010.

Joint Statement of Material

Facts (“JSMF”) (Document. No. 10) ¶¶ 1-2.

During that time, the

NHPD offered a disability benefits policy, administered by Unum,
to its employees (the “Policy”).

Id. ¶ 3.

Under the terms of

the Policy, Unum was solely responsible both for making coverage

1

The Administrative Record in this case totals some 1680
pages. The parties submitted a Joint Statement of Material
Facts that cites to and summarizes the Administrative Record.
Citations in this Order are to the Joint Statement of Material
Facts, though the court has also reviewed the Administrative
Record in its entirety.
3

eligibility determinations and for making payments to insureds.
Id. ¶ 6.
A.

The Policy

Several of the Policy’s provisions are at issue.

First,

the Policy provides that “[y]ou 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.”
Id. ¶ 7.

However, after an insured has received benefits for 24

months, the definition of disability changes: “[a]fter 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.”

Id.

The Policy provides further that “[t]he lifetime cumulative
maximum benefit period for all . . . disabilities based
primarily on self-reported symptoms is 24 months.”

Id. ¶ 12.

The term “self-reported symptoms” is defined to mean
“manifestations of your condition which you tell your physician,
that are not verifiable using tests, procedures or clinical

4

examinations standardly accepted in the practice of medicine.”
Id. ¶ 14.

Such symptoms “include, but are not limited to

headaches, pain, fatigue, stiffness, soreness, ringing in ears,
dizziness, numbness and loss of energy.”

Id.

Finally, of relevance to Unum’s counterclaim, the Policy
provides that if an individual is found to be disabled, he or
she is entitled to 60% of monthly earnings, less “any deductible
sources of income.”

Id. ¶ 9.

Deductible sources of income

include payments made to the insured pursuant to the Social
Security Act.

Id.

Under the terms of the Policy, Unum “has the

right to recover overpayments due to . . . [a policy holder’s]
receipt of deductible sources of income.”
B.

Id. ¶ 11.

Decorpo’s Ailments

Decorpo suffers from myriad ailments, including chronic
pain and fatigue, fibromyalgia,2 Sjögren’s syndrome,3 vestibular

2

Fibromyalgia is “a common syndrome of chronic widespread
soft-tissue pain accompanied by weakness, fatigue, and sleep
disturbances; the cause is unknown.” Stedman’s Medical
Dictionary 725 (28th ed. 2006).
3

Sjögren’s is an autoimmune disorder that can result in dry
mouth, joint pain, swelling and stiffness. The Mayo Clinic,
Sjögren’s syndrome, http://www.mayoclinic.org/diseasesconditions/sjogrens-syndrome/basics/symptoms/con-20020275 (last
visited Sept. 23, 2014).

5

neuritis,4 asthma, cervical dystonia,5 Raynaud’s disease,6 Lyme
disease, depression and Morton’s neuroma.7
C.

Id. ¶ 133.

Decorpo’s Dealings with Unum

In September 2010, shortly after ceasing her employment
with the NHPD, Decorpo submitted a long-term disability claim to
Unum.

In her claim, Decorpo described her ailments as including

Sjögren’s syndrome, fibromyalgia and chronic fatigue.

Id. ¶ 19.

Decorpo’s claim was accompanied by a statement given by her
rheumatologist, Dr. Angelica Gonzalez, who had been treating
Decorpo since 2003.

Id. ¶ 20.

4

Vestibular neuritis is a disorder that results in the
disruption of sensory information from the ear to the brain,
potentially resulting in vertigo, dizziness and difficulty with
balance, vision and hearing. Vestibular Disorders Association,
Infections of the Inner Ear, http://vestibular.org/labyrinthitis
-and-vestibular-neuritis (last visited Sept. 23, 2014).
5

Cervical dystonia is characterized by involuntary and
often painful muscle contractions in the neck area. The
Dystonia Society, About Dystonia, http://www.dystonia.org.uk/
index.php/professional-research/types-of-dystonia/cervicaldystonia (last visited Sept. 23, 2014).
6

Raynaud’s disease causes the extremities to feel numb and
cool in response to cold temperatures or stress and can result
in pain. The Mayo Clinic, Raynaud’s disease, http://www.
mayoclinic.org/diseases-conditions/raynaudsdisease/basics/
definition/con-20022916 (last visited Sept. 23, 2014).
7

Morton’s neuroma involves a thickening of the tissue
around one of the nerves leading to the toes and causes foot
pain. The Mayo Clinic, Morton’s neuroma, http://www.mayoclinic.
org/diseases-conditions/mortons-neuroma/basics/definition/con20026482 (last visited Sept. 23, 2014).
6

Unum began a review to assess Decorpo’s eligibility to
receive benefits under the Policy.

As part of this process,

Unum solicited information from the NHPD regarding Decorpo’s
duties and from Dr. Gonzalez regarding Decorpo’s treatment and
prognosis.

Id. ¶¶ 23, 28.

Unum also sought information from

Dr. Andrew Sebastyn, Decorpo’s family physician.

Id. ¶ 31.

Both Dr. Gonzalez and Dr. Sebastyn responded to Unum’s
request for information, and both opined that Decorpo was unable
to work as a result of her diagnoses of fibromyalgia and
Sjögren’s syndrome.

Id. ¶¶ 33-34.

With this information in

hand, Unum convened a “roundtable” discussion, involving a
clinical consultant, an on-site physician, a vocational
consultant and a Unum quality control consultant, and determined
that Decorpo was eligible for a monthly benefit payment of
$1,902.23.

Id. ¶¶ 36, 38-39.

Unum notified Decorpo of its

decision by letter in January 2011, and outlined for Decorpo the
Policy’s requirement that any benefits be offset by other
deductible sources of income.

Id. ¶ 39.

Although the letter

was sent in January 2011, it appears that Decorpo’s benefits
were retroactive to November 17, 2010.

Id. ¶ 110.

The record suggests that Unum continued to closely monitor
Decorpo’s eligibility for benefits.

For example, another

roundtable discussion was held in February 2011, and a Unum

7

representative initiated a phone call with Decorpo during the
following month to discuss her recent symptoms.

Id. ¶¶ 44, 46.

Additionally, Unum continued to request information from
Decorpo’s various medical providers.8

Id. ¶¶ 47, 61, 79.

During the summer of 2012, as Decorpo was approaching 24
months of payments, Unum undertook a “change in definition”
investigation to determine whether Decorpo would qualify for
benefits beyond the initial 24-month period.

Id. ¶ 80.

As part

of this process, Unum again sought updates from Dr. Gonzalez and
Dr. Sebastyn.

Id. ¶ 81.

In response, Dr. Sebastyn affirmed his

belief that Decorpo was unable to work.

Id. ¶ 82.

Dr. Gonzalez

disagreed, however, concluding that “Decorpo did have the
ability to perform her occupation” if she was able to take
“occasional breaks.”

Id. ¶ 84.

Unum referred Decorpo’s case file to Dr. Peter Kouros, an
on-site physician employed by Unum.

Id. ¶ 93.

Dr. Kouros

assessed each of Decorpo’s reported ailments and, with respect
to each, concluded that there was no objective, physical
evidence in the record to suggest that Decorpo was incapable of
performing her occupational tasks.

8

Id.

The record suggests that during this time, in May 2011,
Decorpo was hospitalized for four days for pain symptoms related
to cervical dystonia and Sjögren’s syndrome. JSMF ¶¶ 72-74.

8

Dr. Kouros promptly referred the file to another in-house
Unum physician, Dr. Joseph Sentef.

Id. ¶ 98.

Dr. Sentef

completed a lengthy written summary of his findings, and
concluded that “physical exams have revealed no neurological
deficits. . . . Looking at all the claimant’s diagnoses, both
individually and collectively . . . I concur that the claimant
would indeed be able to perform a sedentary occupation . . . .”
Id. ¶ 100.
In sum, Dr. Kouros and Dr. Sentef both reached the
conclusion that Decorpo’s impairment was the result of selfreported symptoms of pain and fatigue, but that her disability
had not been documented by objective medical evidence or
testing.

On December 5, 2012, Unum sent Decorpo a letter

informing her that she was no longer eligible to receive
benefits.

Id. ¶ 108.

The letter stated Unum’s position that

because Decorpo’s symptoms were self-reported, she could not
collect benefits beyond the initial 24-month period.

Id.

Importantly, as it relates to Unum’s counterclaim, the
December 5 letter informed Decorpo that although her benefits
would terminate as of November 17, 2012 (precisely 24 months
after the payments began in November 2010), Unum would be making
an additional, one-time payment to Decorpo of $5,706.69 as a

9

“customer service.”

Id.

This sum represented three months’

worth of additional payments (3 months x $1,902.23 = $5,706.69).
In January 2013, Decorpo appealed Unum’s decision.
112.

Id. ¶

In support of her appeal, Decorpo submitted letters and

medical records from Dr. Gonzalez and Dr. Sebastyn, both of whom
opined that Decorpo was unable to work as a result of her
ailments.

Id. ¶¶ 114-15, 118.

In March 2013, in the midst of Unum’s review of Decorpo’s
appeal, Unum received word from the Social Security
Administration that Decorpo had been found to be disabled and
was eligible for Social Security benefits.

Id. ¶ 121.

This

award was retroactive to August 2012 and would be paid as a
monthly sum of $1,103.70.

Id. ¶ 127.

Unum’s review of Decorpo’s appeal consisted of an
assessment of Decorpo’s case file by Susan Grover, a Unumemployed registered nurse (“RN Grover”), and Dr. Christopher
Bartlett, a Unum-employed physician.

Id. ¶¶ 132-33.

Both RN

Grover and Dr. Bartlett concluded that, excluding Decorpo’s
self-reported symptoms, there was insufficient evidence to
support a finding that Decorpo could not satisfy the
requirements of sedentary employment.

Id.

Based largely on

these conclusions, Unum denied Decorpo’s appeal in a letter
dated May 28, 2013.

Id. ¶ 136.

10

Decorpo brought suit in Hillsborough Superior Court in
September 2013, and Unum removed the action to this court.
D.

Self-Reported Versus Objective Ailments

It is beyond dispute that Decorpo suffers from a litany of
ailments which, individually and collectively, adversely affect
her quality of life.

Nevertheless, the plain language of the

Policy limits coverage for “disabilities based primarily on
self-reported symptoms” to 24 months.

Id. ¶ 12.

And, it was on

this provision that Unum based its decision to terminate
Decorpo’s benefits.

Thus, as this court must “evaluate the

reasonableness of [Unum’s] administrative determination,” Leahy,
315 F.3d at 18, an assessment of the medical evidence available
to Unum at the time of its determination is a necessary first
step.
The court has carefully reviewed the record and has
identified the points at which one or more of Decorpo’s
diagnoses were supported by objective medical evidence or
testing (rather than self-reported symptoms of pain and
fatigue).


Those points appear to be as follows:

In May 2011, Unum sought information from Dr.
Jeffrey Byer, another of Decorpo’s treating
physicians. Dr. Byer provided notes from office
visits with Decorpo which show that an ultrasound
had detected a nodule on Decorpo’s left thyroid
gland, and that a CT scan had suggested probable

11

early stage Sjögren’s syndrome. JSMF ¶ 48. The
diagnosis of early stage Sjögren’s syndrome was
later confirmed in a separate CT scan performed by
Dr. Pallavi Guddeti. Id. ¶ 67.


Notes from an April 2011 office visit provided by
Dr. Sebastyn show that Decorpo presented with pain
resulting from a lump on her right foot, which was
diagnosed as Morton’s neuroma. Id. ¶ 50.



Notes from a January 2012 office visit provided by
Dr. Sebastyn indicate that Decorpo was tender in 18
of 18 pressure points commonly used to diagnose and
evaluate fibromyalgia. Id. ¶ 76.



Notes from a May 2012 office visit provided by Dr.
Sebastyn indicate that an MRI of the spine showed
“degenerative spondylosis at C5-6 with some loss of
disc signal intensity . . . .”9 Id. ¶ 83.



Medical records provided with Decorpo’s appeal
indicate that she tested positive for Lyme disease
in 2008. Id. ¶ 112.



Notes from a neurological examination in February
2013, provided by Dr. Sebastyn, indicate that
Decorpo’s cerebellar tests were “abnormal” and that
her balance was impaired. Id. ¶ 119.



Finally, the record contains a report by Dr. Jack
Bueno, who treated Decorpo in January 2013 for an
episode of rectal bleeding. Id. ¶ 124.

9

Spondylosis is used to describe any manner of spinal
degeneration. Spine Health, Spondylosis, http://www.spinehealth.com/conditions/lower-back-pain/spondylosis-what-itactually-means (last visited Sept. 24, 2014).

12

Discussion
A.

The Reasonableness of Unum’s Determination

In ERISA cases, the burden to prove an entitlement to
benefits rests squarely with the plaintiff.

See Orndorf v. Paul

Revere Life Ins. Co., 404 F.3d 510, 518-19 (1st Cir. 2005).
Thus, it is Decorpo’s burden to demonstrate: (1) that she is
disabled; and (2) that her disability is not “based primarily on
self-reported symptoms.”

JSMF ¶ 12.

Logically, then, the court

need only consider those seven objectively identified ailments
listed above, because any additional self-reported symptoms that
Decorpo may have experienced would not entitle her to benefits.
i.

The Policy Requires that the Insured’s Sickness
or Injury Be Disabling

The Policy provides that “[y]ou are disabled when Unum
determines that . . . you are limited from performing the
material and substantial duties of your regular occupation due
to 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.”

Id. ¶ 8 (emphasis added).

Thus, the

Policy plainly imposes a requirement that the sickness or injury
complained of must render the insured disabled.

13

As an initial matter, all but one of the objectively
verified ailments set forth above may be set aside because there
is no evidence in the record that would support a conclusion
that, individually or collectively, they render Decorpo
disabled.

For example, nowhere in the record is there evidence

that the nodule detected on Decorpo’s thyroid gland would have
had a debilitating effect.

Likewise, while Decorpo was

diagnosed with Morton’s neuroma in 2011, the record suggests
that she later underwent surgery to resolve this issue, and
there is no evidence that the disorder would render her unable
to perform sedentary tasks.

See id. ¶ 87.

What is more, the office visit notes from Dr. Sebastyn
summarizing the MRI which showed degenerative spondylosis state
further that “there is no deformity or compression of the spinal
column” and that the MRI was otherwise unremarkable.

Id. ¶ 83.

In any event, nowhere in the record is there a suggestion that
Decorpo’s symptoms are a result of degenerative spondylosis, or
that the disorder would render her unable to work.

Further,

while the record reflects that Decorpo tested positive for Lyme
disease in 2008 and had an isolated occurrence of rectal
bleeding in 2013, there is no evidence to suggest that either of
these were ongoing issues rendering Decorpo disabled.

14

With regard to the CT scans suggesting early stage
Sjögren’s syndrome, the first of these scans was performed by
Dr. Byer, whose office visit notes merely indicate that the
findings “appear to be most compatible with probable stage 1
Sjögren syndrome.”

Id. ¶ 48.

Decorpo underwent a separate CT

scan performed by Dr. Guddeti, who noted in his office visit
notes that the “CT did confirm the presence of innumerable small
cystic lesions in both of her parotids – most compatible with
probably stage 1 Sjögren [s]yndrome.”10

Id. ¶ 67.

At multiple

points, the record suggests that Decorpo suffered from dry eyes
as a result of her affliction with Sjögren’s syndrome.
¶¶ 71, 79.

See id.

Nowhere, however, is there evidence to support the

conclusion that Decorpo’s Sjögren’s syndrome and its resulting
symptom of dry eyes would render her unable to perform sedentary
tasks.
Finally, Dr. Sebastyn’s notes from an office visit in
February 2013 indicate that Decorpo underwent an “abnormal”
neurological examination.

In those notes, Dr. Sebastyn

indicated that “[a]ll cerebellar tests [were] abnormal . . . as
soon as patient closes her eyes . . . [s]he becomes very
tremulous and feels as though she is about to fall.”

10

The parotid glands are salivary glands.
note 2, at 1426.
15

Id. ¶ 119.

Stedman’s, supra

Presumably, though not expressly stated, these findings relate
to Decorpo’s affliction with vestibular neuritis, which can
result in impaired balance.

Despite scouring the record,

however, the court has been unable to find (and Decorpo does not
cite) any connection between these indicators of impaired
balance and an inability to perform sedentary employment tasks.
Unum considered all of these ailments in assessing
Decorpo’s eligibility for benefits.

Four Unum-employed medical

professionals – Dr. Kouros, Dr. Sentef, Dr. Bartlett and RN
Grover, concluded that there was insufficient evidence to
suggest that these ailments would have rendered Decorpo
disabled.

Id. ¶¶ 93, 98, 132, 133.

And, this position was

explained to Decorpo in Unum’s letter of December 5, 2012, which
informed Decorpo that she was no longer eligible for benefits.
Id. ¶¶ 108-09.

Given the court’s own inability to uncover

evidence in the record that these ailments rendered Decorpo
disabled, it simply cannot be said that Unum’s determination was
arbitrary, capricious, or an abuse of discretion.11

11

Tsoulas, 454

In contending that Unum’s termination of her benefits was
arbitrary and capricious, Decorpo relies principally on Quinlisk
v. Unum Life Ins. Co. of Am., C.A. No. 07-40292-FDS, 2009 U.S.
Dist. LEXIS 127197 (D. Mass. Sept. 29, 2009). This reliance is
misplaced. There, the district court remanded a long-term
disability benefits dispute to the insurer for further
proceedings, but did so only after determining that the
insurer’s in-house doctors had misread and misinterpreted
16

F.3d at 76.

Thus, the court is powerless to intervene.

See

Madera, 426 F.3d at 64 (requiring that the administrator’s
decision be upheld if “there is any reasonable basis for it”).
ii.

Decorpo’s Fibromyalgia Disability is Based
Primarily on Self-Reported Symptoms

As noted, the Policy plainly limits coverage for
“disabilities based primarily on self-reported symptoms” to 24
months.

JSMF ¶ 12.

And, “self-reported symptoms” are defined

to include pain and fatigue.

Id. ¶ 14.

Of the seven

objectively verified ailments and symptoms set forth above, the
court is left with only the 18-pressure point test for
fibromyalgia administered by Dr. Sebastyn.
Unum appears to concede that Decorpo’s fibromyalgia and its
resulting pain and fatigue render her disabled.

In Unum’s

December 5, 2012 letter to Decorpo terminating her benefits,
Unum wrote that “[b]ecause your disability is due, in part, to
the symptoms associated with your condition of fibromyalgia,
including pain and fatigue, your claim is subject to [the 24month] limitation.”

Id. ¶ 108.

However, Unum takes the

position that Decorpo’s fibromyalgia is based primarily on selfreported symptoms.
crucial portions of the plaintiff’s medical records. Id. at
*26-27. Here, there is no suggestion that Unum personnel made
similar errors.
17

Courts have long recognized that disability claims based on
fibromyalgia present difficult issues.

See Sarchet v. Chater,

78 F.3d 305, 306 (7th Cir. 1996) (Posner, C.J.) (describing
fibromyalgia as an “elusive and mysterious disease” and noting
that its “causes are unknown, there is no cure, and . . . its
symptoms are entirely subjective”).

Nevertheless, some courts

have endorsed the use of an 18-point “trigger” test, in which a
physician presses different points on the body and gauges the
patient’s reaction; a flinch indicates pain in the area, and
pain in 11 of the 18 points is a positive indicator for
fibromyalgia.

See, e.g., Hawkins v. First Union Corp. Long-Term

Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003)
(“[Fibromyalgia] can be diagnosed more or less objectively by
the 18-point test . . . .”); Russell v. UNUM Life Ins. Co. of
Am., 40 F. Supp. 2d 747, 751 (D.S.C. 1999) (describing the 18point test as an “objective factor[] to diagnose fibromyalgia”).
The First Circuit, too, has seemingly endorsed the use of
the 18-point test for fibromyalgia as an objective evaluative
tool.

See Johnson v. Astrue, 597 F.3d 409, 412 (1st Cir. 2009)

(per curiam) (“[S]ince trigger points are the only ‘objective’
signs of fibromyalgia . . . .”).

Nevertheless, the First

Circuit has repeatedly distinguished between an objective
diagnosis of fibromyalgia, and objective proof that the

18

plaintiff’s fibromyalgia prevents him or her from working.

See

Denmark v. Liberty Life Assurance Co. of Bos., 481 F.3d 16, 37
(1st Cir. 2007), vacated on other grounds, 566 F.3d 1 (1st Cir.
2009); Boardman v. The Prudential Ins. Co. of Am., 337 F.3d 9,
16-17 (1st Cir. 2003); Cook v. Liberty Life Assurance Co. of
Bos., 320 F.3d 11, 21 (1st Cir. 2003).
In Cook, the First Circuit ruled that the defendant insurer
had acted unreasonably when it required that the plaintiff
provide objective proof of her diagnoses of fibromyalgia and
chronic fatigue.

See 320 F.3d at 21.

The Circuit reasoned that

because these ailments could not be diagnosed by a laboratory
test, it was “not reasonable for [the insurer] to expect [the
plaintiff] to provide convincing clinical objective evidence
. . . .”

Id. (citations omitted) (internal quotation marks

omitted).
Boardman was decided shortly after Cook.

There, as here,

the plaintiff suffered from a “large constellation of problems”
that manifested primarily as pain and fatigue.
F.3d at 12.

Boardman, 337

The defendant insurer terminated the plaintiff’s

disability benefits on grounds that the plaintiff had not
presented objective evidence that her disability rendered her
unable to perform her occupation.

Id. at 16-17.

The First

Circuit began by noting that, like the situation in Cook, it

19

would have been unreasonable for the insurer to require
objective evidence of the plaintiff’s diagnoses.

Id. at 17 n.5.

However, the Circuit drew a distinction between the
unreasonableness of an insurer’s insistence on objective
evidence of a diagnosis, and objective evidence of the
disability’s limiting effects.

Id. (“While the diagnoses of

chronic fatigue syndrome and fibromyalgia may not lend
themselves to objective clinical findings, the physical
limitations imposed by the symptoms of such illnesses do lend
themselves to objective analysis.”).
Later, in Denmark, the First Circuit echoed its holding in
Boardman, noting that “this court draws a distinction between
requiring objective evidence of the diagnosis, which is
impermissible for a condition such as fibromyalgia . . . and
requiring objective evidence that the plaintiff is unable to
work, which is allowed.”

481 F.3d at 37.

There, the Circuit

ruled that “it fell within the parameters defined in Boardman
for [the defendant insurer] to require [the plaintiff] to
provide objective evidence of functional limitations or
restrictions that would prevent her from working.”

Id.

Here, Unum has not taken the position that Decorpo is not
disabled.

Rather, Unum’s decision to discontinue benefits

20

followed its determination that Decorpo’s disability was based
primarily on self-reported symptoms.
Unum’s conclusion was “reasoned and supported by
substantial evidence.”12

See Ortega-Candelaria, 755 F.3d at 20.

While the 18-point trigger test may provide some level of
objectivity in diagnosing and assessing fibromyalgia, the test
necessarily relies on the patient’s self-reporting.

What is

more, even once a diagnosis of fibromyalgia is rendered, Unum is
entitled to insist on objective evidence that the fibromyalgia
renders Decorpo unable to work.

There is ample such evidence in

the record, but it all involves Decorpo’s symptoms of pain and
fatigue – both of which are expressly included in the Policy’s
definition of “self-reported symptoms.”

JSMF ¶ 14.

In sum,

there is substantial basis for Unum’s conclusion that Decorpo’s

12

Decorpo suggests that the self-reported symptoms
provision of the Policy is vague and ambiguous, and thus must be
construed against Unum. See Phillips v. Lincoln Nat. Life Ins.
Co., 978 F.2d 302, 308 (7th Cir. 1992) (“Ambiguous terms in an
insurance contract will be strictly construed in favor of the
insured.”). Specifically, Decorpo notes that the Policy does
not expressly name fibromyalgia as a disability subject to the
self-reported symptoms provision. There is no ambiguity here.
The Policy clearly defines “self-reported symptoms” to mean “the
manifestations of your condition which you tell your physician,
that are not verifiable using tests, procedures or clinical
examinations standardly accepted in the practice of medicine”
and provides specific examples including pain and fatigue. JSMF
¶ 14. That the Policy does not name the specific ailments that
would fall into this category does not result in ambiguity or
vagueness.
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disability is based primarily on self-reported symptoms, and
thus the court must uphold it.
B.

See Madera, 426 F.3d at 64.

Unum’s Right to Recover Overpayments

The Policy entitles Unum to “recover overpayments due to
. . . [a policy holder’s] receipt of deductible sources of
income,” which include Social Security payments.

JSMF ¶¶ 9, 11.

Decorpo received benefits under the Policy in the amount of
$1,902.23 per month for a 24-month period from November 17, 2010
to November 16, 2012.

Id. ¶¶ 39, 110.

Plus, Unum paid Decorpo

three months’ worth of benefits in December 2012 as a “customer
service” when Unum wrote to Decorpo informing her that her
benefits would be discontinued.

Id. ¶ 109.

Decorpo began receiving Social Security payments of
$1,103.70 per month in August 2012.

Thus, it appears that

Decorpo received both Social Security payments and benefits
under the Policy from August 1, 2012, until November 16, 2012, a
period of 3.53 months (given that Decorpo received benefits for
16 of 30 days in November).
Unum now seeks $7,206.27 that it contends was overpaid to
Decorpo.

Though not immediately clear, Unum seems to arrive at

this number by roughly multiplying the 3.53 months by Decorpo’s
monthly Social Security payment, then adding an additional three

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months’ worth of Social Security payments to account for the
three months’ “customer service” payment:
(3.53 months x $1,103.70) + (3 months x $1,103.70) = $7,207.16
Unum is not entitled to repayment of any funds paid to
Decorpo as a “customer service.”

Nowhere in Unum’s December

2012 letter did Unum note that this one-time payment was subject
to deductible sources of income, and Unum may not now seek
retroactive garnishment.

Instead, Decorpo must repay $3,896.06,

representing the 3.53 months that she received both Social
Security payments and benefits under the policy.
Conclusion
While the court has no doubt that Decorpo suffers from a
variety of ailments, the plain terms of the Policy limit
Decorpo’s eligibility for benefits to 24 months because her
disability of fibromyalgia is based primarily on self-reported
symptoms, and because there is insufficient evidence to conclude
that her remaining ailments render her unable to work.

On this

record, Unum’s Motion for Judgment on the Administrative Record
(Document No. 12) must be granted and Decorpo’s Motion for
Judgment on the Record (Document No. 11) must be denied.

And,

for the reasons given, Decorpo is directed to make payment to

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Unum in the amount of $3,896.06, which represents the full
extent of her liability for overpayment.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
September 25, 2014
cc:

Byrne J. Decker, Esq.
Robert M. Shepard, Esq.
Tanya L. Spony, Esq.

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