Smith v. Bayer Corp. Long Term Disability Plan

275 Fed. Appx. 495 (6th Cir. 2008)

Our client, the plaintiff in this case, was a pharmaceutical sales representative for Bayer Corporation until he had to quit working due to depression, panic attacks, and bi-polar disorder. Smith v. Bayer Corp. Long Term Disability Plan, 275 Fed. Appx. 495, 497 (6th Cir. 2008).  The plaintiff’s treating physician, Dr. LeBuffe diagnosed him with Bi-polar II, Attention Deficit Disorder, severe Major Depression, and Panic Disorder. Id. at 499.  Additionally, on a medical assessment form, Dr. LeBuffe rated Mr. Smith as having “poor” abilities to (1) interact appropriately, communicate effectively, and engage in other aspects of social functioning (2) concentrate and keep a persistent and steady work pace; and (3) adapt to stressful events in work settings where the failure to adapt would lead to repeated episodes of deterioration or decompensation which would cause Mr. Smith to withdraw or to experience increased anxiety and depressive symptoms. Id.

Kemper, Bayer’s third-party claims administrator, hired Dr. Burstein to review Mr. Smith’s file. Id.  Dr. Burstein did not review Mr. Smith’s medical records himself but just spoke with Dr. LeBuffe about Mr. Smith. Id.  Dr. Burstein mischaracterized Dr. LeBuffe’s statements as saying that other than Mr. Smith’s fear of having a panic attack, there were no barriers to Mr. Smith returning to work. Id.  Kemper denied Mr. Smith’s claim based on Dr. Burstein’s report. Id.

We appealed this denial to Bayer’s ERISA Review Committee.  The Review Committee submitted Mr. Smith’s file to Dr. Mendelssohn for review. Id.  Dr. Mendelssohn reported that there was not sufficient evidence of objective mental status to preclude Mr. Smith from working. Id at 500.  The Review Committee also hired Dr. Orr to perform an independent file review. Id.  Dr. Orr focused on the fact that Mr. Smith had attended a real estate course and gotten his real estate license to report that Mr. Smith was not disabled. Id.

While the claim was with the Review Committee, Mr. Smith moved states, began working as a stocker at Target, and began seeing Dr. McCool, a board-certified psychiatrist. Id.  Dr. McCool opined that Mr. Smith would have significant difficulty maintaining the level of work required by his job as a pharmaceutical sales representative and that in the long term Mr. Smith may not be able to even maintain his work at Target. Id.  Dr. McCool noted that Mr. Smith had suicidal thoughts, depressed mood, and lack of motivation and concentration. Id.  A vocational expert, Mr. Boatner, similarly declared that unless Mr. Smith’s condition improved, he could not return to work at Bayer and that his work at Target was likely the most he could earn. Id. at 501-02.  Mr. Boatner expressed that there was no way to determine if or when Mr. Smith’s condition would improve. Id. at 502.

The Review Committee then commissioned another independent medical evaluation to be performed by Dr. Burstein, a board-certified psychiatrist. Id.  Dr. Burstein, who never met Mr. Smith in person, acknowledged Mr. Smith’s diagnoses of Panic Disorder, Bi-polar Disorder II, and Attention Deficit Disorder, but nevertheless reported that “There is no indication of [Mr. Smith’s] experiencing a degree of psychiatric illness that would interfere with his functioning satisfactorily as a pharmaceutical sales representative” or at any other job he is or could become qualified for.  Dr. Burstein emphasized that Mr. Smith was not disabled from working because he had completed the real estate program, passed the real estate exam, gotten divorced and remarried, moved states, and found the job at Target. Id.  The Review Committee then reaffirmed its original denial. Id.  The Review Committee acknowledged that Mr. Smith’s treating physicians and its hired experts disagreed but accepted the opinions of its experts. Id. at 502-03.

To qualify for benefits for the first sixth months after he stopped working, we had to prove that Mr. Smith was unable to perform the essential duties of the occupation he regularly practiced before becoming disabled. Id. at 505.  The Sixth Circuit upheld the district court’s determination that Bayer’s denial of benefits under this “regular occupation” standard was arbitrary and capricious. Id. at 509.  First, Kemper had relied on experts who had never even met Mr. Smith.  One of these experts, Dr. Orr, based his decision on Mr. Smith’s involvement with the real estate course, but Mr. Smith passed the real estate exam while he was still working at Bayer and before he claimed to be disabled. Id. at 507.  Additionally, there was no evidence that Mr. Smith was able to actually enter the real estate profession. Id.  A second expert, Dr. Burstein had emphasized that Mr. Smith was not disabled because of events in his personal life and his job at Target.  The court, however, affirmed the district court’s holding that “the ability of an individual to divorce, remarry, and move to a different city for a low-paying job is ‘irrelevant to whether or not Mr. Smith can persist at an occupation.’” Id.

The Court acknowledged that there is no bright-line rule requiring that the opinions of treating physicians be accepted over those of reviewing experts. Id. at 507-08 (citing Calvert v. Firstar Fin., Inc., 409 F.3d 286, 293-94 (6th Cir. 2005)).  However, “the failure to conduct a physical examination—especially where the right to do so is specifically reserved in the plan—may, in some cases, raise questions about  the thoroughness and accuracy” of the claims evaluation. Id. at 508 (quoting Calvert, 409 F.3d at 295).  Here, Bayer’s plan reserved the right to take a physical examination. Id.  The court found that the failure to do so for a claimant with mental and emotional conditions was “both puzzling and troubling”, because a physical examination would have helped the plan administrator better evaluate the severity of Mr. Smith’s symptoms. Id. at 508 (citing Sheehan v. Met. Life Ins. Co., 368 F. Supp. 2d 228, 254-55 (S.D.N.Y. 2005)(declaring, “Courts discount the opinions of psychiatrists who have never seen the patient for obvious reasons.  Unlike cardiologists or orthopedics, who can formulate medical opinions based upon objective findings derived from objective clinical tests, the psychiatrist typically treats his patient’s subjective symptoms” and that interviewing and spending time with the patient are “essential to understanding and treating the fears, anxieties, depression, and other subjective symptoms the patient describes.”)).

The fact that Bayer was able to find evidence from its hired experts supporting its denial did not protect its decision from review, because courts must “review the quality and quantity of the medical evidence and the opinions on both sides.” Id. (quoting McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003)).  Bayer’s disregard for Mr. Smith’s treating physician’s opinions and total reliance on its hired expert’s opinions was arbitrary and capricious, and Bayer breached its fiduciary duty to only rely on expert advice that is reasonably justifiable under the facts of the case. Id. (citing Gregg v. Transportation Workers of Am. Intern., 343 F.3d 833, 841 (6th Cir. 2003)). The Court held:

Given th[e] obvious shortfall in the analytical framework used by the experts credited by the plan administrator, in conjunction with the numerous factual errors, misunderstandings, and analytical omissions of those persons reviewing the findings of Smith’s treating psychiatrists, the administrative record contained no reliable evidence to support the conclusion that [Mr. Smith] was competent to return to his previous occupation.

Id. at 509.  Thus, Mr. Smith was entitled to benefits for the first six months of disability under the “regular occupation” standard. Id.

After the initial six months of being disabled, we had to prove that Mr. Smith was “totally disabled” or not able to work at any job for which he is or could become qualified for by education, training, or experience for him to qualify for benefits. Id. at 505.  Bayer argued that even if Mr. Smith had been totally disabled after the first six months, he had forfeited his right to partial disability benefits by working at Target, because the plan terminated benefits if a claimant returned to work unless the work was an approved rehabilitation program. Id. at 513.  The court disagreed and explained that Mr. Smith should not be penalized for not following the plan rules by working at Target, because when Mr. Smith took the job at Target, Bayer was of the position that Mr. Smith was able to return to his pharmaceutical sales job. Id.  The court explained:

Because [Bayer] improperly denied Smith benefits under the plan, he was forced, in order to provide for himself and his family, to accept some remunerative employment.  That act, occasioned by Bayer’s own arbitrary and capricious decision, cannot now serve as the basis for [Bayer’s] argument that further benefits are not due.

Id.  The court then remanded the claim for the plain administrator to determine whether Mr. Smith was totally disabled or partially disabled during this time period. Id. at 511.