ERISA Disability and Life Insurance Litigation
Oral arguments from various courts of appeal across the federal circuits involving long term disability or life insurance claims governed by ERISA.
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ERISA Disability and Life Insurance Litigation
Ben Glass argues after Aetna Cuts Off Benefits After Seven Years
This is a case that Ben Glass argued in the 4th Circuit Court of Appeals in November. It involved a former Cox Enterprises employee who's benefits were terminated by Aetna, the plan administrator, after seven years of payments.
Ben argued that Aetna violated ERISA claim regulations in several ways, including ignoring the social security determination that the claimant remained disabled.
Ever wondered why insurance companies can suddenly terminate benefits after years without warning? Here we argued that Aetna failed to engage in meaningful dialogue with Smith. Discover how these missteps can affect unrepresented individuals and the critical role of clear communication and adherence to regulatory standards in protecting their rights.
Join us as we dissect the complexities of remanding long-term disability cases and the intricacies involved in evaluating chronic pain patients' work capacity. With cases like Harrison and Gagliano, we highlight the contentious issue of paper reviewers challenging in-person medical opinions and the importance of a thorough review of all medical evidence. The discussion sheds light on the standards insurance companies must meet and emphasizes the need for fair and unbiased determination of work capacity and benefits entitlement.
We also delve into the distinct differences between Social Security and ERISA evaluations, exploring how these systems impact claimants' ability to perform gainful activity. With a focus on fiduciary responsibilities, this episode underscores the importance of objective evidence and the need for insurers to remain unbiased and curious throughout their decision-making processes. We aim to equip you with invaluable insights into the legal landscapes of disability claims, ensuring that individuals like Jeremy Smith receive the fair treatment they deserve.
These public domain recordings are brought to you by Ben Glass Law, a national long term disability and life insurance firm headquartered in Fairfax, VA.
By making these recordings into a "podcast," we've made the listening easier for claimants, attorneys and claims adjusters alike.
If long term disability or life insurance benefits have been denied, we'd love to review your denial letter and give you a strategy for moving forward. This is a free service and you can go here to begin submitting your denial letter.
he sends this report, which seems logical, but it's not what we were, it's not what we at NU were asking for. You just call it, you engage in dialogue and you say not that one, we need the old one from seven years ago. So I think, for that reason alone, that violation of the regulations, the decision to terminate benefits, is unlawful. The decision to terminate benefits is unlawful. Welcome to the Ben Glass Law Long-Term Disability Podcast, where we bring you real courtroom arguments from federal courts around the country. This podcast gives you an inside look into the issues that judges think are important when long-term disability cases come before them. By sharing these public domain recordings, we've made it easy for the public to access previously difficult-to-find information about long-term disability claims. Ben Glass Law is a national long-term disability law firm based in Fairfax, virginia. The audio has been edited only slightly to remove filler words and dead time. If you have a claim that's been denied, go to freedenialletterreviewcom that's freedenialletterreviewcom to have your denied claim reviewed by our team of experts. Okay, now on to the arguments.
Speaker 2:All right, we will proceed to the second case on the calendar for today, smith v Cox. And. We will hear from the Appellate's Counsel, mr Glass.
Speaker 1:Good morning your Honor. My name is Ben Glass. I'm here on behalf of Jeremy Smith. Are supposed to ensure that an unrepresented claimant is able to navigate the process when he has been. When, in this case, benefits have been terminated after seven years of paying and the regulations and, of course, jurisprudence set out guardrails, you have to tell us, you have to tell me, the claimant, why you are terminating my benefits. You have to address my favorable evidence, like address it, tell me where I'm wrong so that I can address it in an appeal letter. You have to engage in meaningful dialogue with me and that wasn't done in this case.
Speaker 1:And I think there's two big issues, one very specific and one larger and more general, as to why the termination decision was wrong and the district court's affirmance of that termination decision was wrong. And the first involves this Social Security issue, which is the regs say that an insurance company, when you're denying a benefit or terminating a benefit and you know that the claimant is on getting Social Security Disability, you have to address that. You'll recall, in the first denial letter Etna was a claims manager of this case First denial letter they say hey, mr Smith, we're terminating your benefits after seven years. Look, we know about this reg and we know that you're on Social Security Disability, but we don't know why the Social Security Administration has been paying you for seven years. Mr Smith goes and I'll paraphrase good news as I told you, this is the summer of 19, 2019. This termination letter is coming. He says as I told you in the spring, I had an in-person examination. I was recertified last summer and let me, as part of my appeal process, send you the recertification report, the in-person examination that a Social Security doctor did. The examination that says look, at most, this fellow can sit for four hours a day. So he does that as part of his appeal. Again, he doesn't have a lawyer. He's not supposed to need a lawyer to do this and Abner doesn't say anything about that.
Speaker 1:They go through the process of getting their paper reviews, which we'll come back and talk about in a few minutes here. In their final denial letter, they cut and paste and repeat the same boilerplate paragraph about Social Security, saying we know you're on Social Security. We don't know why they decided what they did. It was just cut and paste. Huh, in the litigation in the district court they said oh, that paragraph meant we didn't know, we didn't have the original Social Security reasoning from seven years ago, something that they had never asked for before and had been paying the claim. The plan administrator had been paying the claim for these seven years, and district court said that's okay, so this post hoc reasoning.
Speaker 1:My argument, though, is when Aetna got his appeal, where they said we don't know what Social Security's done and he's sending them this five-page, very detailed report. Reasonable dialogue requires someone to pick up the phone and say hey, mr Smith, that thing you just sent us from last year that tells why Social Security recertified you. That's not what we're looking for Now. That doesn't make any sense to me, right? It makes no sense.
Speaker 2:Why didn't you send the whole package? Pardon me, why didn't you send the whole package? Why didn't you send from the 2016?
Speaker 1:Okay, it's not me, it's an unrepresented claimant. He doesn't have a lawyer at this point. Number one, judge Wynn. But number two, the most logical thing would be hey, I was just recertified a year ago and Judge Nguyen remember over and over again Jeremy Smith had given Aetna what Forms releases that Aetna asked for. That would have allowed Aetna to go and get social security information. If that's what they really want, I don't think that's what they really wanted. Ben Glass's personal opinion here.
Speaker 1:But fundamentally, Discord has said the requirement is to engage in a meaningful dialogue. If what, this gentleman who works as the, he's the phone guy when your internet goes out, where your computer doesn't work, he would give phone tech. He sends this report, which seems logical. But it's not what we were, it's not what we at NIT were asking for. You just call it, you engage in dialogue and you say not that one, we need the old one from seven years ago.
Speaker 1:So I think for that reason alone, that violation of the regulations, the decision to terminate benefits, is unlawful because they're required to address the Social Security, the adverse to them Social Security opinion, and they don't do that at all, and then that problem is multiplied in the final. So now my second issue was like this decision, at the end of the day, is an arbitrary decision. I'll tell you why. But one of the reasons why is that neither of the two paper reviewers addressed this report either. So now Aetna has this five-page Social Security examination report. What else do they have? They have the IME that Aetna had asked for, dr Lee, where he's checking a box on a functional capacity form that says look this guy, mr Smith. I've examined him in person. I think he can sit somewhere between two and a half and five hours a day. If you look at the cases most of the cases that talk about what do we mean by sedentary means, at least to have the ability to sit six hours a day.
Speaker 2:Can a change of circumstance be a reason to go back to Aetna and have them reevaluate or look at this? In other words, once they make a determination, as was done here, it goes up to court. If there comes some other evidence or something that influences or shows something different, can you go back and ask them now to award your disability?
Speaker 1:benefits. So, if I understand the, let me tell you what. Let me try to answer the question first by telling you what I'm asking you to do the court to do. I can't go back because there's a final decision Now we've been in litigation and now we're here in the Fourth Circuit, so I can't go back. Number one, Number two, one thing that was very consistent in this room Once an insurer Aetna makes a determination, they're off the hook forever.
Speaker 2:I mean, the person in fact does become shown, he's disabled from it, or whatever. That's right, yes, sir. So there's nothing you can go back to show it. In other words, having determined that they didn't look at this, there's no way you could have said here and then it's because procedurally you didn't do it a certain time, now you can't do it.
Speaker 1:So that's what the whole regulatory process is about. They send a denial letter that says why we terminated you and all of our reasons.
Speaker 2:So even now, though, even if we agree with you, that doesn't mean you get benefits, does it? It means it goes back for them to look at the report, or do we hold as a matter of law? You're entitled.
Speaker 1:No, let me tell you why. So now we're on the topic of remands from the Fourth Circuit. There's two kinds of remands Remand to the district court to do something and a remand, in some cases, all the way back to the plan administrator to have the plan administrator do it. In Gagliano, it's one of your cases, fourth Circuit's cases remand went all the way back to the plan administrator because in that final denial letter the plan administrator had raised a new issue, pre-existing condition, which factually had not been developed at all. Here, and this court has said this, I went back and looked at your remand jurisprudence when you have a record that's fully developed. So it's not that they didn't have the information, because they had the information, judge Wynn, they chose to ignore, they chose to violate the regulations. So you don't give them now, five years after benefits have been terminated, another bite at that apple.
Speaker 1:There's a case called Gorski. There's a the case is in our briefs. There's a disability case. There's a pension case, that where this court is saying look when the record is a record and the documents aren't going to change. But fundamentally the plan administrator violated the regulation, made an arbitrary decision, didn't consider the evidence that they had in their box, you don't send it back for another. Look at that. What you do is you say that termination of benefits was unlawful so it doesn't count. He's now owed five years of back benefits. This is what the remand to the district court would be to do the math on the back benefits, to do discussion and decision on pre-judgment interest and attorney fees, I think, for this court and the district court, and it gets reinstated to claim Now, a year from now, if Aetna wants. Yes, sir, can I?
Speaker 3:ask you about that Because I also went back and looked at our court's remand jurisprudence because I had the same question and it looked to me like we have a good number of cases where we said there was some evidence that it appears the plan did not address and we're going to remand it because the plan has the administrator has the discretion. We're going to send it back to make sure they consider the full record and let them make a new decision. There are some cases where we have said we've ordered benefits to be awarded but in those cases it appears that we disagreed that it was reasonable to deny benefits, right. Yes, cases of Harrison and a handful of others where we said we're concerned that the piece of evidence was overlooked.
Speaker 1:So I understand your question and that's why I said there's two reasons. There's the specific Social Security regulation violation and then there's the decision writ large and the decision writ large and I don't want to let you talk about the second part of your argument.
Speaker 3:And I don't want to let you talk about the second part of your argument. But on that first part, if it's just the, have they considered everything we sometimes said? It would be inappropriate under the plan for school to award benefits when benefits aren't actually owed, right? So we send a back-order determination of whether there is just the.
Speaker 1:Sure, considered evidence. Let me answer that with respect. The better jurisprudence is when you have all of the evidence in the box and you chose to ignore something. You don't get another bite at that apple. When, as in Gagliano and some of these other cases, there's something out there that just wasn't developed, the claimant didn't develop it, nobody thought about it. The issue was raised in the final denial letter. Then, yes, this court has often sent the case all the way back to the plan administrator for a redo. If we are going to have insurance companies play by the rules so that people like Jeremy Smith don't need to go hire people like me right from the beginning of their case, then we have to enforce it and say no, you don't get a do-over five years down the road. So that would be. I understand what your honest question is and I would suggest to the court that the better jurisprudence is no. When you have everything and you take three strikes and you miss, you are out.
Speaker 3:My question is is our jurisprudence? Our jurisprudence may not be the better jurisprudence in your opinion.
Speaker 1:Well, as you have indicated already, like there's a mixed bag, my view is, when you examine the marbles in the bag, all right, that you have not remanded the case in the situation where let's take it that we're going to figure that one out.
Speaker 2:I think we can figure this one out. This is a legal thing. I appreciate it and I think she's making slightly importance on it. You have a second issue. I do, yes.
Speaker 1:The second issue is okay. So this is a chronic pain case. The gentleman's had three surgeries two in the spring, right before he went out of work in 2012. One I think it was two years later. Back surgeries and you have four doctors your honors that examined him and said look at max, on a great day he can sit five hours a day. This is variable, and on some days he's only going to be able to do two and a half hours a day. This is variable, and on some days he's only going to be able to do two and a half hours a day. His treating physician thought only two hours a day.
Speaker 1:And my point here is this that when you A, you don't address that because they never really address those. They list them, they talk about them, but if you say to me, mr Glass, address the issue, and I just say here's their arguments, that's not addressing the issue. So they never address this adverse evidence. But when you have two fellows who are doing purely paper reviews and you're saying we are going to pick these two fellows' opinions about sitting capacity and sedentary work capacity and send those to the occupational expert who does the, I just have a practical question. Yes, your Honor.
Speaker 3:Is one of those doctors, one of the ones who called his treating physician and had a teleconference of some sort.
Speaker 1:They each called One called one treating physician, the other called the other. I think one got through to one of them and the other didn't get through to the other one. That's the best I can. Who didn't get through? I think Dr Walker tried to call Dr Hartline and didn't get through. I believe.
Speaker 3:They talked to Dr Hartline. He didn't get to talk to the same.
Speaker 1:I think that may be true. And again this goes back to meaningful dialogue. Your Honor, if this is an issue that you've got to tell Jeremy Smith, hey, we're having a hard time getting through to the doctor. This is important. Can you help us? You don't just leave it to the end of the denial letter. If I may, let me just talk. Let me finish my thought about the paper reviewers overruling.
Speaker 1:So the error is when they go to the occupational expert at Aetna and say, do a transferable skills analysis, see if there's any jobs he can work at, they only send him. They only send that person the two opinions of their, like their best opinions. They don't give that person any of this other evidence, these contrary opinions. So her, the basis for her opinion, is flawed there. Now, look, there can be circumstances. And this court has said, and other district courts have said look, there are circumstances where the paper reviewers, their opinion can be more reliable.
Speaker 1:Usually that's in some case where there's some new evidence that the trading physician didn't know about. Maybe there's surveillance, maybe there's an activities log. None of that's true. The one thing that everybody is consistent about throughout this case is that this guy is in pain that he is not has not changed at all in the seven years he's been on claim now seven plus four, 11 years that he's 12 years or so since the time he went out on disability and he was arbitrary. My argument is it was just purely arbitrary. He said here let's just take these two best opinions that we have from guys who never examined him and overrule the IME doctor, independent and Social Security doctor. I'll sit down now, unless your court has any other questions.
Speaker 2:You'll be back. You have a few minutes in rebuttals. Thank you, judge. We may have another bite at you before this is over. Awesome, we'll hear from the counsel for Aetna.
Speaker 4:Good morning your Honors and, may it please the court, Nicole Crow here for the plan Cox Enterprises plan and I represent Aetna, which is the third-party administrator for the plan. And as I was preparing for this argument, I went ahead and looked at new cases that have been decided since the court, since we were finished briefing in this court, and I came across a case that applied Booth factors in a case similar to this in terms of how we marched through the evidence, and I found a quote that I thought really should set the stage, because I think this sort of was missing from my opponent's argument, and that is this court said like offensive linemen on a football team, standards of review lack glamour but are often decisively important. And I really like that quote in this case because in this case we have a self-funded ERISA welfare benefit plan. It's funded by contributions from Cox and Cox's employees. Cox has delegated discretionary authority to Aetna, a third-party, disinterested claim fiduciary, to interpret the terms of the plan and to determine whether or not individuals are entitled to benefits under the plan. So we have a pure, highly deferential abuse of discretion standard of review and no conflict of interest factor to factor in.
Speaker 4:And that is the mindset that the district court came at this case with.
Speaker 4:The district court correctly identified the standard of review and correctly applied the standard of review in looking at all the evidence that was in the administrative record.
Speaker 4:And I have a lot to unpack from what Mr Glass had to say about a few pieces of evidence in the administrative record. But there was a lot more to it than that and the district court correctly looked at this and said this standard of review says if it's a deliberate and principled reasoning process and it's supported by substantial evidence in the administrative record, I can't disturb that decision, even if I would have come to a different result and in this case it's clear from the district court's order that she probably would not have come to a different result because she did go through all of the evidence that Aetna looked at. But even if she would have come to a different result with the totality of the evidence that was in this administrative record, substantial evidence means more than a scintilla and less than a preponderance and I would submit that there's way more than a scintilla of evidence in this record that supported Aetna's determination and the district court looked at that. And if you go back, I'd like to go back to Judge Wynn's question about change of circumstances.
Speaker 2:I got that argument I was only going to. Is there something he could do now? Really, I think the question I would ask you on this is the Helton case sets out very clearly that when an administrator has the authority to weigh, address a conflicting piece of evidence and here you have I think the allegation relates to Dr Harris or the Social Security disability, and the question is that a failure to address some key conflicting evidence, even though, as you say, we look at the total evidence in the whole bed. But we do have that prohibition there. You cannot address something that might be favoring the other side and call it sufficient.
Speaker 4:I agree that's the proposition that Hilton stands for that you can't ignore evidence and in Hilton that administrator in the Hilton case actually withheld relevant pieces of evidence from the record and ignored the evidence. I would submit that this is not a situation where any pieces of evidence were overlooked. You have these terms of this plan say if this individual can do any reasonable occupation and that means any gainful activity that he is or could become qualified for.
Speaker 2:I'm talking specifically the Social Security Disability Report. Correct, and, as I understand, the claimant was pro se at the time and gave you, I guess, the 2018 report. Is that right? He did, he submitted, he didn't have the 2016 report. He didn't have a 2016 report, so there was no report when he was first in 2015, first granted an award of Social Security disability benefits but Edna had him sign a release. Is that correct, so that you could actually get those reports? Is that correct, so that you could actually get those reports?
Speaker 4:Typically, when you sign a release saying you can go and get my medical records, you expect you're going to go and get them. You could go get the or you could try to get from the Social Security Administration, within the guidelines, timelines allowed for an ERISA determination, which is very difficult to do, timelines allowed for an ERISA determination, which is very difficult to do. Practically speaking, you can request it, but the Social Security Administration moves very slowly and these regulations that my colleagues are referring to require a decision to be made within 45 days. You can ask one time for 45 more days if you have a good reason, and that is actually what Aetna did in this case when he, on appeal, submitted. You asked the Social Security for those records and that is actually what Aetna did in this case when he on appeal submitted.
Speaker 2:You asked the Social Security for those records.
Speaker 4:No, because there would be no reason for them to request the Social Security file in 2015 because Aetna had also made the same determination. And so it wasn't until late 2018, when all of the treating physician's medical records didn't support restrictions and limitations anymore that would preclude him from doing that definition that I was saying of any gainful activity that he could make 60% of his pre-disability earnings from. At that point, aetna did what the plan said, which is we have to get continuing proof. So they reached out to him and said we need this continuing proof from you, and at that point he had just started seeing Dr Hartline. He had seen Dr Hartline on January 24th of 2019. He got an attending physician statement January 31st, a week after Dr Hartline started treating him, and sent it in as his additional evidence, and it said he can work two hours a day, two days a week. And what do I base that on? Prior doctor. Etna couldn't determine who the prior doctor was based on the records they had. So Aetna's nurse reached out to Dr Hartline and said hey, what is your? What's the basis for this? Can you clarify restrictions and limitations? He couldn't do that, so Aetna went back to the plan and said we've got the discretion to get an IME and that's the independent medical exam that my colleague was talking about.
Speaker 4:They sent him to Dr Lee. All of this occurred prior to determination of benefits. So they sent him to Dr Lee. Dr Lee examined him, reviewed all of his records and found that he could sit for most of the day after 66% of the day and occasionally stand and walk. That's when Aetna took that. So that was incorrect about sending paper reviews over to Coventry to get the transferable skill analysis. The restrictions and limitations that the alternative occupations were identified based on were the restrictions and limitations of Dr Lee from that independent medical examination. Coventry then did what's called a transferable skills analysis. They looked at what the physical abilities Dr Lee said that Mr Smith had. They looked at Mr Smith's work skills. They did a wage survey to make sure that there were occupations that he could earn 60% of his pre-disability earnings. Dr Lee said is he? There were occupations that he could earn 60% of his pre-disability earnings.
Speaker 2:Dr Lee said, is he the one that said that he could sit for a maximum of five hours a day?
Speaker 4:He said that he could work for eight hours a day and that he could sit frequently, which was on the form defined as 2.5 to five hours, up to 66% of the day.
Speaker 2:So where did Dr Walker get the six hours a day?
Speaker 4:from. Dr Walker got that from reviewing all of the medical records and making his own independent.
Speaker 2:Tell me which medical record says that or supports that he could sit for six hours a day. That he reviewed.
Speaker 4:He reviewed a lot I wouldn't be able to. That's another thing I want to come back to.
Speaker 2:I don't mean to be coy about this, but I don't see it. I don't see any support for where he got that six from. He didn't get it from Dr Lee, and Dr Lee is the one I guess he was relying upon to talk to, but I don't know where he got it from.
Speaker 4:If you read Dr Lee's entire report, he doesn't ever say that he can't sit six hours a day. He's given options to check on a physical capacity form and it says either occasionally 1% to 33% of the day, or frequently or constantly, and he checked frequently, which is up to 66 percent of the day, but there was an entire.
Speaker 3:Oh yes, I'm sorry to interrupt you. I had a question about the relationship between the physical evaluations and the medical records and these opinions about how wrong he has been and what he can do. Just one question seemed implied the reviewing doctor couldn't have an opinion that this gentleman can sit for six hours if no previous doctor had that opinion. But I thought the doctors during the paper review you look at the evaluations and the medical facts about the person but then the conclusions that are drawn from those facts might be different by each doctor who reviews it. But is the fact-of-opinion distinction? Is?
Speaker 4:that actual? Am I understanding it correctly or is that different? You're absolutely correct and in fact Dr Walker was a physiatrist who's board certified in physical medicine and rehabilitation, so he's uniquely situated to determine functional capacity based on medical records. And so they go through and review the medical records what is documented in where these treating physicians have seen this individual, and then from that draw an opinion on their own specialty, their own experience and training. And in this case he was in physical medicine and rehabilitation. He was a physiatrist. That's what they do is help people get back to work, and so they look through all of the records and form their own opinion based on this medical information.
Speaker 4:What would I think this individual could do? And then the second reviewer was he was the most optimistic, if you will Dr Gupta, and he was board certified in internal medicine. But I really think Dr Walker's, because of his specialty, was important Dr Lee, also the independent medical examination doctor. He was board certified in occupational medicine. These are people who are trained to determine whether or not somebody has the functional capacity to go back to work.
Speaker 2:I guess the only question is how did he come up with six? I understand he's an expert on all this and he can look at records. But what if he had said 10, 15? I mean he could say that I understand he's an expert, but that number ought to be explained from somewhere and no other doctor said that he's the one and he's doing it on the records. So when you're doing it on the records, I understand he can give an opinion. I'm looking at these records that tend to look that way. But he hasn't even examined a guy that doesn't know the whole bit. So it seems like he'd pull it from somewhere.
Speaker 2:When you go with a specific number like that, because that's a number significant, when you start saying that because that tells that he can do certain other kind of jobs and stuff with that number, that's my question. I got that he's an expert, he's all you know. He can look at records and get stuff, and but at some point in time you got to ask well, where'd you get it from? Because you only relying your best information, even as an expert, is what you were looking at. And if what you're looking at doesn't say anything what you just said and I realize. Maybe you can then give an opinion based on what you're looking at, but it seems far removed, because the real subject is the person. You haven't looked at the person. These are people who evaluate. It's almost like double hearsay, isn't it? But you kind of look at it. But that's what my concern is. That's why I was asking.
Speaker 4:I understand and I can't speak for Dr Walker and neither can Etna the people who make these benefit determinations. They're not medical professionals and that's why they turn to medical resources in order to get information and I would agree that if it was so far out there, 10 or 15 hours, so far removed from all of the other evidence, then they should probably go back and question this individual or get a different doctor to review it. But you're looking at a situation where we have no evidence of restrictions and limitations to sedentary work in the medical records provided by his own doctors and then when you go try to get more information, you do not get information that supports that. You get an IME. The IME says he can work full-time sedentary work, sitting frequently, and my opponent is focused on this form and the 2.5 to 5 hours. But one of the things that the district court really got right here that's important is when he's talking about the six hours and he's talking about sedentary work requiring that. That's a social security rule, and social security rules don't apply in ERISA plans. Those cases are social security cases and, just like there's no treating physician rule in ERISA cases that require deference to the treating physician's opinion, there's no rule that it has to be six hours a day.
Speaker 4:What Aetna did was look to a common vocational source, or actually, aetna hired Coventry to do a transferable skills analysis and they looked at the dictionary of occupational titles. The DOT is a common vocational assessment source DOT and EDOT. They also looked at various other sources occupational outlook guidebooks, federal bureau statistics, all sorts of information and extrapolated out that he could do sedentary work under the DOT's definition. And all that definition is that you can sit for most of the day and stand occasionally and walk occasionally. Even Dr Harris's exam that 2018 consultative exam that predated Dr Lee's even when she did her exam when you read it, she doesn't say he can't work an eight-hour day. She says in an eight-hour day, he can sit 30 minutes per hour, stand 15 minutes per hour and walk 15 minutes per hour. Well, that's 30, 45, 60 minutes per hour that he can do things. But if you're taking it and extrapolating out, well, she only says he can sit four hours, and these people only say he can sit five hours and they say six hours. That's not when you look at the job descriptions that the Dictionary of Occupational Titles says what a job has to do and if you.
Speaker 4:Everyone agreed that he has pain and he needs to shift positions because of pain. Everyone agreed that he could sit a certain amount of time and then he would need to stand up or walk around a little bit. They all agreed that there were various numbers put on it. It doesn't stop it from being he could sit most of the time, stand occasionally, walk occasionally and that was a reasonable decision for Aetna to make. It was reasonable for the district court to look to it as objective evidence and this court has held in multiple cases that it's objective evidence.
Speaker 4:I think, going back to what Dr Walker said, where he came up with exactly six hours, it would be based on the whole list that was long, of everything that he looked at and then picking what he thinks this is the most reasonable amount of time Either way. He only said he could do it for 45 minutes at a time. He didn't say he can sit for six straight hours. Nobody ever said that. People said that he could sit 30 minutes or 45 minutes. He would need to shift positions and all of those decisions accounted for that, including Dr Harris's that he would need to change positions and only sit for 30 minutes per hour per hour.
Speaker 3:Before your time is up. I wanted to ask about Dr Harris's opinion. I know it's listed among the records that were given to the reviewers so that we see that Ed and Newick had this and gave it to the reviewers to look at. But we talked with your colleague a little bit about that sentence in the denial that reappeared in the appeal denial saying we don't have the basis for Social Security's determination, and that gives me a little bit of pause. It seems like they did have the basis because they had Dr.
Speaker 4:Harris' opinion. What effect should that have on our decision? Opinion. What effect should that have on our decision? So Social Security decisions are distinguishable on multiple bases and not dispositively.
Speaker 3:And the letter says that right, you can grant Social Security disability. Those are business standards, those are rules. It doesn't go in here. So that goes on and has a sentence saying and we don't even have the basis for why they made that decision. And they say that again in the appeal, which makes it sound like maybe they're forgetting about Dr Harris.
Speaker 4:Dr Harris, may very well have been one component of why the Social Security Administration decided to recertify, but as far as there's a whole list and I'll be out of time before I can say all the components- no, you won't.
Speaker 2:You can answer Judge.
Speaker 4:Russell, the Social Security Administration has a whole different process that they go through. They look have you done any gainful activity? Can you still do your prior gainful activity? Can you do this? Can you do that? They look at age. They look at a different vocational analysis than the vocational analysis that's done under this ERISA plan. That was done here and so not knowing the basis for because he didn't go to an ALJ. So you're saying the basis for Social Security's decision is more than just Definitely it takes into account all of the regs that that govern social security.
Speaker 4:They have guidelines they have to look at. There are certain diagnoses that just meet a listing and if you just have this diagnosis, boom, you get social security. If it doesn't meet it, they have to look at all these other factors. And I think what Aetna's trying to say is these are different standards and we don't know the basis for why they made the determination they made. They didn't say we're not going to give it any weight at all. They just said we can't give it significant weight because we don't know and generally speaking you won't know unless they get denied and then sent to an ALJ and the ALJ writes out his or her whole opinion how they laid out those factors. You just don't get that. You just get a notice of award or a notice of recertification. So you're not really sure what they base it on. But what we were absolutely sure they didn't base it on was all of this new evidence that was in front of.
Speaker 4:Aetna. Thank you Thank you.
Speaker 2:Thank you for your argument. We'll hear a bit of rebuttal from the Appellants Council.
Speaker 1:Thank you so absolutely. It's an abuse of discretion standard. But they're supposed to act like fiduciaries and I know you know lawyers. We often talk about unbiased fiduciaries, which is redundant. I often talk about curious fiduciaries and a fiduciary is supposed to be figuring out how do I get to the right decision? Right, and this is why we have the rules. This is why we have the regulations and the jurisprudence which sets up these guardrails, so that this power that we have given these plan administrators to have discretion, to determine benefits and to make judicial review of their decision challenging is they have to play by the rules. And I've outlined all the reasons, I think, why they didn't do that.
Speaker 1:All of this interesting Ms Crow explanation of the Social Security differences. That's why, in the letter, that's why we have the regulation that says if you disagree with Social Security Administration, tell us why, so that Jeremy Smith can address. She may be right, she may be wrong. I'm not a Social Security lawyer, I'm not a Social Security expert, but this is what gives, this is meaningful dialogue, and it's what the regs require, in my view, so that a claimant like Jeremy Smith can decide oh, this is way over my head Let me go to a lawyer or no, let me just send them the report, because we do know Ms Crow says the Social Security doctor didn't say it couldn't work. We know that right after that examination and report Social Security recertified him that he told Adena that. So again a curious fiduciary would be going gee, let's think about that. And the regs say let's address that.
Speaker 1:We know that the two paper reviewer doctors, you would think at the very least, at the very least their reports, would have looked at the most recent unbiased, not connected to the claimant report out there, dr Harris's social security report, and say this is why we think she is wrong when she says four hours and why I say six hours or even more than six hours. I mean, there's a way again for a paper reviewer to get there. But I think they have to point to underlying evidence. Something has changed and the one thing that's very clear and I said this before when I was up here is that nobody is saying he's better, we just have different opinions. No one is saying look, you know, we did a squat test and we measured your dexterity and all this stuff and look, you're getting better, you're not using as much narcotic medication, you're getting better. We have your own surveillance. You're getting better.
Speaker 1:There's none of that in this case, dr Walker, the paper reviewer. In his report he says look after the type of surgeries that Jeremy Smith had. Most people are going to reach maximum medical improvement in one year and then they're not going to change. And that's exactly what has gone on throughout this case. Aetna found that evidence was good enough for seven years. They went out and found a couple of paper reviewers who got opinions that they liked a lot better. Showed them to the TSA person to get their other jobs to get to their decision. That's not what a curious, unbiased fiduciary does.
Speaker 2:I'll ask my colleagues do you have any further questions?
Speaker 3:I do not Thank you, thank you all.
Speaker 2:Thank you, I do not.
Speaker 3:Thank you.
Speaker 2:Thank you all. Thank you Mr Glass, thank you Ms Crow. As I said before, we're going to come down and greet both of you. By the way, you ably addressed the issues for your clients today before this court and we appreciate that. Thank you. The panel is standing up here. We'll come down and greet you and you will be greeted virtually by Judge Rush.
Speaker 1:So that's it for today's arguments. We hope that you have enjoyed this presentation of oral arguments from federal courts in long-term disability claims. This podcast is sponsored by Ben Glass Law, a national long-term disability law firm. If your claim has been denied, go to freedenialletterreviewcom. That's freedenialletterreviewcom. If you're thinking about going out on claim and you want to schedule a consultation with us, reach us at 703-591-9829 or visit us on the web at benglasslawcom.