Logue v. Reliance Standard Life CV-01-264-B 06/04/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dorothy Logue

v. Civil N o . 01-264-B Opinion N o .

Reliance Standard Life Insurance Co.

MEMORANDUM AND ORDER

Dorothy Logue brings this action against Reliance Standard

Life Insurance Company to recover benefits under an ERISA-

regulated disability insurance plan. The parties have filed

cross-motions for summary judgment. For the reasons set forth

below, I grant Logue’s motion and deny Reliance’s cross-motion.

I. BACKGROUND

A. The Injury

Logue is a 59 year-old woman with an associate degree in

nursing. She worked as a Discharge Planning Coordinator at

Frisbie Memorial Hospital from October 1 , 1990 until September 9,

2000. A discharge planner must be able to think clearly and interact with patients and hospital staff while coping with a

moderate amount of stress. The job’s only significant physical

requirement is an ability to walk or stand for much of the day.

Logue has suffered from fibromyalgia1 since 1997. Although

she experienced constant pain and regularly took pain medication,

a muscle relaxant, and anti-depressant medication, she was able

to work regularly until September 9, 2000, when she suffered a

back injury while assisting her disabled mother.

Logue initially sought treatment for her injury on September

1 3 , 2000. An MRI taken the next day revealed a “mild disc bulge

and facet arthrosis” at L4-L5 and “mild facet arthrosis” at L5-S1

without “disc herination, spinal stenosis or forminial

narrowing.” Her rheumatologist, D r . John Shearman, described the

MRI as “relatively normal.” Logue saw D r . Shearman again on

October 1 0 , November 9, and December 1 2 , 2000. D r . Shearman’s

notes state that Logue continued to complain of significant pain

but that she believed that her condition was slowly improving.

1 Fibromyalgia is characterized by chronic pain in the muscles, tendons, and joints throughout the body. Diagnostic criteria for the condition developed by the American College of Rheumatology also require that the patient experience pain upon palpation of at least 11 of 18 designated “trigger points.” See Attorney’s Textbook of Medicine, ¶ 25.34 (1990).

-2- He instructed her to continue taking her medication and apply ice

and wet heat to the affected area.

Dr. Shearman completed a Physician’s Statement for Logue on

December 1 2 , 2000. He diagnosed her condition as a “bulging disc

L 4 , L5," secondary to fibromyalgia. Dr. Shearman asserted that

Logue could not drive or sit and could stand and walk for only 1-

3 hours per day. He noted, however, that her condition did not

limit her ability to perform the mental component of her work.

He also stated that she was capable of performing light duty work

during an 8-hour day.

On January 2 , 2001, Logue told a Reliance employee that she

“feels a little bit better than previously.” She also admitted

that she was not receiving physical therapy and that D r . Shearman

had told her “do normal activity cautiously.” She claimed,

however, that she had difficulty driving and sitting and that she

could walk for only up to one hour with rest periods during an

eight-hour day.

Logue completed a pain questionnaire on March 9, 2001. She

asserted that her fibromyalgia had been getting worse each year,

and that her condition deteriorated significantly after she

injured her back. She claimed that she had a limited ability to

-3- walk, she could sit or drive for no more than 20 minutes, and she

had difficulty concentrating. She stated that she was able to

cook, “tidy” her house but not vacuum, engage in light shopping

and take care of her personal needs by pacing herself and resting

frequently.

Dr. Shearman saw Logue again on April 5 , 2001. A few days

later, he completed a Fibromyalgia Residual Functional Capacity

Questionnaire describing Logue’s condition. He noted that Logue

suffered from “chronic-frequent episodes of severe pain.” He

stated that her pain constantly interfered with her attention and

concentration and that she was incapable of performing even low

stress jobs. He claimed that she was able to stand for no more

than five minutes at a time and for less than two hours total

during the work day.

B. The Policy

Logue is a beneficiary of a group long-term disability

policy issued by Reliance.2 The policy divides benefit

2 The parties treat Reliance as the administrator of Logue’s ERISA-regulated long-term disability plan and the policy as the plan. Further, Reliance does not challenge Logue’s decision to sue it rather than the plan. Accordingly, I will assume that Reliance is the plan administrator and that Logue is entitled to bring her claim against Reliance.

-4- eligibility determinations into two phases. Only the first

phase, which covers the first 24 months following a 90-day

elimination period, is relevant to this action. During the

elimination period, and for the next 24 months after the

elimination period is completed, a beneficiary is deemed to be

“totally disabled” if, “as a result of injury or sickness,” the

“Insured cannot perform the material duties of his/her regular

occupation.” The policy requires a beneficiary to “submit[]

satisfactory proof of total disability to us” to recover benefits

under the policy.

C. The Claim

Logue formally applied for benefits under the policy on

December 1 8 , 2000. In a February 2 1 , 2001 letter denying Logue’s

claim, Reliance explained that she had failed to produce

satisfactory evidence of disability because: (1) her MRI revealed

only a “mild disc bulge and facet arthrosis” at L4-5 and “mild

facet arthrosis” at L5-S1 without “disc herniation, spinal

stenosis or forminial narrowing;” (2) Dr. Shearman’s December 2 ,

2000 physical capacity report stated that Logue was capable of

performing light duty work; (3) Dr. Shearman’s notes indicated

that while Logue continued to experience pain, her condition

-5- improved throughout the elimination period; and (4) Logue had

failed to produce any objective medical evidence to support her

claim that she could no longer work.

Logue retained counsel and appealed the denial of her claim

on March 2 9 , 2001. Her attorney asserted that Logue was disabled

because “fibromyalgia, combined with the effects of [her back

injury] upon her health have seriously decreased her ability to

perform even simple activities of daily living.” Logue included

a copy of her March 9, 2001 pain questionnaire with her appeal.

On April 9, 2001, Logue supplemented her claim by submitting a

formal job description and D r . Shearman’s April 1 4 , 2001

Fibromyalgia Residual Functional Capacity Questionnaire.

Reliance denied Logue’s appeal on May 1 1 , 2001. On June 6, 2001,

Reliance also rejected Logue’s request for a second appeal which

she based in part on the fact that the Social Security Adminis-

tration had recently granted her application for disability

benefits. In a letter explaining its decision, Reliance stated

that “while we consider the determinations of Social Security and

any other insurance policy, they have no bearing on our decision

as to whether M s . Logue meets the determination of ‘total

disability’ contained in [her] policy.”

-6- II. STANDARD OF REVIEW

This case presents a threshold question as to whether I

should review the denial of Logue’s claim de novo or under the

familiar “abuse of discretion standard.” In Firestone Tire &

Rubber C o . v . Bruch,

(1989), the Supreme Court held

that “a denial of benefits challenged under [29 U.S.C.] §

1132(a)(1)(B) is to be reviewed under the de novo standard unless

the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or

to construe the terms of the plan.” Id. at 115. This

requirement has been given teeth by the First Circuit, which

mandates the use of the de novo standard unless the plan “clearly

grant[s] discretionary authority to the administrator.” Terry v .

Bayer Corp.,

8 , 37 (1st Cir. 1998) (quoting Rodriguez-

Abreu v . Chase Manhattan Bank, N.A.,

(1st Cir.

1993)) (emphasis added).

Reliance requires an applicant to “submit[] satisfactory

proof of total disability to us” to trigger an entitlement to

benefits. It argues that this policy language gives it

discretionary authority to make benefit determinations because a

“satisfactory proof” requirement permits it to deny claims that

-7- in its subjective judgment are not supported by sufficient

evidence. While this interpretation is plausible, it is at least

equally likely that a reasonable beneficiary would understand the

policy to require Reliance to grant an application for benefits

if the beneficiary produces enough evidence of disability to

satisfy a reasonable insurer. If the policy is given this

interpretation, it does not vest Reliance with discretion to deny

properly supported claims. Given this ambiguity, I agree with

those courts that have concluded that a “satisfactory proof”

requirement does not clearly confer discretionary authority on a

plan administrator. See Herzberger v . Standard Ins. Co.,

(7th Cir. 2000); Sandy v . Reliance Standard Life

Ins. Co.,

(9th Cir. 2000); Kinstler v .

First Reliance Standard Life Ins. Co.,

(2d

Cir. 1999); Rzasa v . Reliance Standard Life Ins. Co.,

5 , at *4 (D.N.H. March 2 1 , 2000); but see Perez v . Aetna Life

Ins. Co.,

(6th Cir. 1998). Thus, I review

Reliance’s denial of Logue’s claim using the de novo standard.

III. DISCUSSION

It is often difficult to determine whether a person is

-8- disabled when they suffer from fibromyalgia. This is so because,

as the Attorney’s Textbook of Medicine notes, “there i s , at

present, no way to objectively measure impairment in a patient

with fibromyalgia.” Attorney’s Textbook of Medicine, ¶ 25.70;

see also Sarchet v . Chater,

(7th Cir. 1996)

(fibromyalgia’s “cause or causes are unknown, there is no cure,

and, of greatest importance to disability law, its symptoms are

entirely subjective”). Reliance could have avoided this

difficulty either by specifically excluding coverage for

fibromyalgia claims or by covering only claims that result from

illnesses that can be diagnosed using objective medical evidence.

Instead, it has elected to cover disability claims that result

from any “injury or sickness.” Thus, it cannot reject Logue’s

claim simply because her alleged impairment cannot be objectively

measured. See Mitchell v . Eastman Kodak Co.,

(3d Cir. 1997)(plan administrator may not reject claim based

solely on lack of objective medical evidence where plan does not

require that claims be supported by such evidence); House v . The

Paul Revere Ins. Co.,

(8th Cir. 2001) (same).

Accordingly, I will review Logue’s claim by considering all of

the relevant evidence rather than rejecting it out of hand

-9- because it is not supported by objective medical evidence.

I have no doubt that Logue suffers from fibromyalgia because

Dr. Shearman diagnosed the condition long before Logue attempted

to obtain disability benefits, she has been taking prescription

medication for the condition for several years, and Reliance has

not produced any evidence that would call D r . Shearman’s

diagnosis into question. Reliance nevertheless argues that Logue

is not entitled to disability benefits because (1) the fact that

she was able to work with fibromyalgia for several years

demonstrates that her condition was not disabling; (2) her MRI

does not support her claim; and (3) Dr. Shearman’s statements

that Logue was capable of engaging in light duty work and should

cautiously resume normal activities suggest that she was capable

of returning to work. I find these arguments unpersuasive.

The fact that Logue was able to work with fibromyalgia for

several years does not necessarily undermine her claim that her

condition deteriorated after she injured her back to the point

that she could no longer work. Nor is her MRI dispositive. Dr.

Shearman determined that Logue’s impairments were caused by her

back injury in combination with fibromyalgia. Reliance has

failed to produce any medical evidence challenging this

-10- determination. Without such evidence, it cannot deny Logue’s

claim simply because neither Logue’s back injury nor her

fibromyalgia were, by themselves, sufficiently severe to prevent

her from returning to work.

Dr. Shearman’s statements that Logue was capable of

performing light duty work and that she should cautiously resume

normal activities also fail to undermine Logue’s claim.3 Dr.

Shearman has consistently endorsed Logue’s contention that she

was incapable of standing and walking for more than two hours

during an 8 hour work day after she injured her back. I can find

nothing in Dr. Shearman’s office notes, or in Logue’s description

of her condition which casts doubt on her contention. Nor has

Reliance produced any medical evidence of its own on this issue.

Since it is undisputed that a discharge planner must be able to

walk and stand for much of the work day, Logue has established

that her fibromyalgia and back injury caused her to be unable to

3 Reliance attached significance to the fact that the only treatment that D r . Sherman prescribed for Logue’s back injury was to continue taking her medications and apply ice and wet heat to the area of her injury. It has failed to explain, however, why this treatment regime is inconsistent with Logue’s claim that her illness and injury prevented her from being able to return to work.

-11- perform all of the material duties of her job as a discharge

planner. Accordingly, I grant her motion for summary judgment

(doc. n o . 9 ) and deny Reliance’s cross-motion (doc. n o . 1 1 ) .

SO ORDERED.

Paul Barbadoro Chief Judge

June 4 , 2002

cc: Vicki Roundy, Esq. Kevin Devine, Esq.

-12-