Torgeson v. Unum Life Ins.Co. of America, 2006 U.S.Dist.LEXIS 89908 (N.D.Iowa 12/6/2006)(Issue: Fibromyalgia).  In this case, which we litigated, Jean Torgeson, a nurse, sought disability benefits from Unum due to fibromyalgia, migraine headaches, chronic fatigue syndrome, and depression.  Despite a court review under the arbitrary and capricious standard, the court determined the plaintiff was entitled to benefits.  The court found significant arbitrariness in the claim determination; i.e., an improper reliance on a supposed lack of “objective” evidence, improper rejection of first-hand clinical findings and determinations, and failure to consider the co-morbidity of multiple impairments. 

As to the first issue, the court focused on Pralutsky v. Metropolitan Life Insur.Co., 435 F.3d 833 (8th Cir. 1/19/2006)(February 2006), which held the plan administrator did not abuse its discretion by demanding objective evidence.  Torgeson distinguished that ruling by providing the evidence that was lacking in Pralutsky: Detailed clinical notes, an independent evaluation performed at the request of Social Security, and a positive “trigger point” test as demonstrating clinical objective confirmation of fibromyalgia.  The court also pointed out that unlike Pralutsky, where the plan defined the type of evidence that had to be provided, Unum’s policy had no comparable provision; and concluded “that Unum abused its discretion by relying on the lack of objective medical evidence to support Torgeson's claims of disability, where the Plan did not authorize Unum to demand or rely upon such evidence.” *84 (citing Pralutsky).  The court also found an abuse of discretion in Unum’s failure to have the claimant examined:

Moreover, Torgeson is correct that Unum never did do what the Plan did authorize Unum to do to evaluate Torgeson's disability claim, which was to demand (and pay for) an examination by a physician. See Administrative Record at 146. Instead, Unum relied entirely on its review of the medical records provided. That, too, was an abuse of discretion, at least where Unum concluded that the medical records already submitted were insufficient to support Torgeson's claim for benefits. *84-*85.

The court also pointed out that Unum’s demand for objective evidence was inappropriate because the diagnoses of fibromyalgia and chronic fatigue syndrome “are dependent upon subjective symptoms.” *85.  The court elaborated:

Torgeson's contention that fibromyalgia is not amenable to objective evidence is supported by the decision of the Eighth Circuit Court of Appeals in Chronister, 442 F.3d at 656. In Chronister [v. Baptist Health, 442 F.3d 648 (8th Cir. 3/23/2006)(April 2006)], the court noted that "Fibromyalgia is verifiable only through patient self-report," and reiterated its holding "that trigger-point test findings consistent with fibromyalgia constitute objective evidence of the disease." Chronister, 442 F.3d at 656 (citing Johnson v. Metropolitan Life Ins. Co., 437 F.3d 809 (8th Cir. 2006). In Chronister, the court held that, where there was "trigger-point" verification, the claimant's medical condition of fibromyalgia did not rest "primarily on self-reported symptoms," and the district court did not err in finding that the plan administrator (also Unum in that case) abused its discretion by denying the claimant further benefits based solely upon a "self-reported symptoms limitation." Id. n11 Similarly, here, where there was "trigger-point" verification of Torgeson's fibromyalgia, her complaints about that condition did not rest "primarily on self-reported symptoms," but upon "objective evidence of the disease." Id. Thus, it was an abuse of discretion for Unum to demand objective evidence to support Torgeson's claim of disabling fibromyalgia, when that claim was already supported by adequate objective medical evidence.  *85-*86 

Further, the court pointed out that since Unum made no showing that any objective evidence beyond the trigger-point test could be provided, “it was unreasonable for Unum to demand the impossible.” *87.  The court applied the same reasoning with respect to fatigue since the symptoms were consistent with diagnosed conditions.  Hence, the court found “there was undoubtedly consistent evidence of fatigue symptoms.” *89.

The court next addressed Torgeson’s argument that Unum improperly credited non-examining physicians opinions over the findings of the examining doctors.  Although Black & Decker v. Nord, 538 U.S. 822 (2003) ruled that no special deference need be given to the treating doctors, the court found that “each treating physician consistently found that some restrictions and limitations were appropriate for significant periods of time after September 19, 2003…” *94 (emphasis in original).  Hence, the court determined, “Unum patently abused its discretion by reading the treating physicians' long-term aspirations for Torgeson as any evidence that the restrictions imposed in the near term were not justified.” *95.

The court also concluded that Unum abused its discretion by failing to appropriately consider the combined effect of multiple, co-morbid conditions: 

Unum's reviewing physicians, however, simply focused on whether or not Torgeson's diagnoses with "depression" and "chronic fatigue syndrome" were supported by medical evidence demonstrating separate conditions. Because the reviewing physicians concluded that a separate cognitive or psychological "depressive" condition could not properly be diagnosed on the record, and that "chronic fatigue syndrome" was not indicated by diagnostic symptoms, they apparently discounted completely any limiting effect of Torgeson's "depression" and "fatigue" in conjunction with her fibromyalgia. An exception is Dr. Caruso, who initially disputed a diagnosis of "major depression," but believed that Torgeson was nevertheless suffering a "depressive disorder," albeit one that did not cause any impairment. Administrative Record at 865-66. After receiving further information from Dr. Armstrong, Dr. Caruso revised his opinion to suggest that "if [Torgeson] 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." Administrative Record at 877 78. Torgeson is correct that Unum did not seek any "co-morbidity analysis" despite Dr. Caruso's latter opinion.

The court finds that Unum abused its discretion in failing to consider the combined effect, or "co-morbidity," of all of the conditions supported by adequate medical evidence and opinions. Abrams, 395 F.3d at 887-88. Although part of the medical review on administrative appeal purported to be a co-morbidity review, see, e.g., Administrative Record at 768-69 (May 11, 2005, referral of Torgeson's medical file for further medical review, indicating "CO-MORBID REV REQ" under "Priority Notes"), the reviews themselves, with the exception of Dr. Caruso's, do not demonstrate that co-morbidity was ever properly considered. Indeed, none of the questions posed for the medical reviewers asked or required them to consider the co-morbid effects of any combination of conditions. See id. Moreover, Unum simply ignored Dr. Caruso's suggestion that co-morbidity might push Torgeson over the line into "disability," and Unum conducted no further "co-morbidity" review, despite Dr. Caruso's suggestion. *100-*101.

Thus, the court determined:

The court can only conclude that Unum abused its discretion in denying Torgeson's claim under the applicable definition of "disabled," because Unum's ultimate decision was the result of several other determinations that the court has already concluded were an abuse of discretion: relying on a supposed lack of objective evidence to support Torgeson's claim; rejecting the opinions of Torgeson's treating physicians concerning appropriate restrictions and limitations and, instead, relying on the opinions of reviewing physicians that her restrictions and limitations were not supported by the record; and failing to consider the co-morbidity of Torgeson's various conditions. *105.

Finally, the court rejected Unum’s argument that Torgeson’s condition did not change at the time she ceased working.  Citing Greene v. Director, Office of Workers' Compensation Progs., U.S. Dep't of Labor, 889 F.2d 794, 797 (8th Cir. 1989) and Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003), the court agreed with Torgeson that her heroic efforts to continue to work as long as she could did not allow Unum to infer she was not disabled when she finally succumbed to her condition.  Consequently, the court ordered the payment of benefits rather than remanding the case, after finding that this was not a situation where the “administrator fails to make adequate findings or adequately explain its reasoning.”  Instead, benefits were due because “the administrator’s decision to deny benefits constituted an abuse of discretion.” *110.  The court also awarded prejudgment interest and attorneys’ fees because “Unum’s conduct was not merely an abuse of discretion, but suggested culpable or bad faith consideration of Torgeson’s claim.”