Toth v. INA Life Ins.Co. of New York, 2009 U.S.Dist.LEXIS 55736 (D.Ore. June 18, 2009)(Issue: Continuing Disability Review, Chronic Fatigue Syndrome).  The plaintiff, who had worked for Pfizer, Inc. as a sales representative, became disabled in 2000 as the result of chronic fatigue syndrome and neurocardiogenic syncope.  She was initially denied benefits, but after a prior lawsuit, benefits were awarded in 2003 and benefits continued thereafter until 2006 when CIGNA terminated payments again following a nurse’s review of the claim file.  Plaintiff twice appealed that decision, but the insurer refused to reinstate benefits, leading to the present lawsuit. 

At the outset of the court’s opinion, the court recounted the evidence and cited the unequivocal support for the plaintiff’s claimed disability by three specialist physicians.  The court contrasted that evidence with CIGNA’s, which included a report from Dan Gerstenblitt, MD and a single paragraph written by the insurer’s medical director, Paul Seiferth, MD which stated in its entirety:

   [Claimant with] CFS FIBROMYALGIA. [Attending physicians] assert [claimant] unable to work based upon subjective [complaints]. The [Attending Physicians] do not provide measurable evidence of a functional loss. On appeal, [Attending Physicians] provide opinions of [claimant] disabled but do not offer measurable evidence of functional loss to support restrictions of no work.

The court applied the de novo standard in assessing the evidence as it had done in the earlier litigation, and concluded:

A review of the record supports only the conclusion that plaintiff is totally disabled,  and will in all likelihood remain so, barring the development of some new treatment or a remission that is not now anticipated. The overwhelming evidence in the record supports only the conclusion that plaintiff suffers from conditions that severely limit her physical and mental functional capacity. This evidence comes in the form of medical records and opinions furnished by treating physicians who have substantial expertise in the disorders with which plaintiff has been diagnosed, and have a knowledge of plaintiff's particular physical and mental status developed over many years of examination, consultation, and treatment.

Plaintiff cites extensive and compelling medical evidence, provided by treating physicians that have personally observed and recorded her condition over the course of many years, in support of her assertion that she continues to be unable to perform the material duties of any occupation for which she "may reasonably become qualified based on education, training, or experience." This medical evidence is fully consistent with the information provided by plaintiff's friends and neighbors. In contrast, defendants rely on an unsupportable analysis of the evidence, coupled with unfounded accusations of improper bias and contradiction on the part of plaintiff's physicians, and assertions that plaintiff is exaggerating her impairments. Objectively viewed, the totality of the evidence clearly establishes that plaintiff lacks the physical capacity and concentration needed to sustain competitive employment in any field.  *24-*26.

Indeed, the court found that the plaintiff’s condition has worsened over time; and the court thoroughly rejected the insurer’s condition that the treating physicians relied solely on the plaintiff’s self-reports.  The court noted the doctors had relied on medical tests and their examination findings to corroborate their opinions and the court found no support for the insurer’s argument that the doctors had to repeat the testing since the doctors made it clear there was no reason to do so.  The court thus concluded:

There is simply no basis in the administrative record for concluding that plaintiff's treating physicians could not or did not accurately evaluate plaintiff's condition, and honestly and objectively determine that the symptoms she described were consistent with their own objective observations and with plaintiff's confirmed diagnosis. It is obvious that plaintiff's treating physicians uniformly concluded that plaintiff was not a malingerer, and that they concluded that the symptoms of which she complained were both real and fully consistent with her objectively established diagnosis. There is no basis for finding that, in reaching their conclusions, plaintiff's treating physicians were not objective or were professionally dishonest. *36.

And the court addressed the defendant’s evidence as follows:

Nurse Maureen Clarke's determination that plaintiff was not disabled was set out in conclusory terms, and did not provide substantial support for termination of plaintiff's benefits. Reviewing physician Dr. Gerstenblitt simply opined that plaintiff's claim was "driven by the self reports and self imposed limitations of the claimant," and opined that plaintiff should have been able to work because "even with orthostatic hypotension, one still should be able to do a sedentary job." He did not explain why this was so, or provide objective support for his rejection of the unanimous opinion of plaintiff's treating physicians that plaintiff could not work. The analysis of Dr. Seiferth, defendant CIGNA's Medical Director, was even more conclusory. Dr. Seiferth stated that plaintiff's treating physicians concluded that she could not work, based upon plaintiff's complaints, and did not provide "measurable evidence of a functional loss." Given that plaintiff's physicians agreed that plaintiff's impairments were verified by physical examination, and given the absence of evidence in the record that plaintiff's disorders are actually of the sort that are susceptible to "measurable" evaluation of "functional loss," Dr. Seiferth's observations do not cast doubt upon the substantial evidence supporting the conclusion that plaintiff is disabled. *37-*38.

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