Jordan v. Northrop Grumman Welfare Benefit Plan
| Decision Date | 01 June 2004 |
| Docket Number | No. 99-56346.,99-56346. |
| Citation | 370 F.3d 869 |
| Parties | Vicki JORDAN, Plaintiff-Appellant, v. NORTHROP GRUMMAN CORPORATION WELFARE BENEFIT PLAN; Metropolitan Life Insurance Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas W. Falvey (briefed), Pasadena, CA, for the appellant.
Diana Tabacopoulos, Thomas R. Kaufman (briefed), Seyfarth Shaw, LLP, Los Angeles, CA, for the appellees.
Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding, D.C. No. CV-98-03726-ABC(JGx).
Before D.W. NELSON, O'SCANNLAIN, and KLEINFELD, Circuit Judges.
This case turns on whether the administrator of an ERISA disability plan abused her discretion.
Jordan worked as a senior administrative secretary for Northrop Grumman from 1984 to 1995. She described her job as "typing, filing, telephone, sitting, walking, standing, general administrative office procedures." One of her fringe benefits was long term disability insurance under Northrop's company plan for employees. In September 1995, at age 42, she made a written claim for disability benefits under the plan. She wrote that she had pain that interfered with performing her job: She stated that her disability was fibromyalgia, had begun in May, and that she was receiving "state disability." Additionally, she wrote that, She stated that her monthly income before disability was $2,900 and that it was now reduced to $1,344 in state disability benefits.
The plan was issued and administered by The Travelers Insurance Company (Travelers), and subsequently by its successor in interest, Metropolitan Life Insurance Company (MetLife). The plan obligates MetLife to pay monthly benefits "if you become Totally Disabled." Generally, the employee must be absent from work and under a physician's care because of total disability for six consecutive months before benefit payments start. For a person Jordan's age, payments would continue until age 65 so long as she remained totally disabled. Under the plan, the term "totally disabled" means "unable to perform all the normal duties of your regular occupation" for the first 18 months and "completely unable to engage in any occupation or employment for which you are or become qualified" after that. If a claim is denied, the applicant is entitled to have the claim reviewed by the plan administrator. The plan expressly confers discretion on the plan administrator, both to construe the terms of the plan and to make factual determinations:
The Travelers will serve as the final review committee under the Plan to determine for all parties all questions relating to the payment of claims for benefits under the Plan and shall notify you in writing about the decision on your review. The Travelers has the discretion to construe and interpret the terms of the Plan and the authority and responsibility to make factual determinations.
Jordan claims that the illness that totally disables her is fibromyalgia. This syndrome, formerly called fibrositis, has traditionally been used for "an ill-defined, poorly understood set of symptoms, consisting of aching pain and stiffness in one or several parts of the body."1 As we have previously explained, fibromyalgia's cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective.2 There are no laboratory tests for the presence or severity of fibromyalgia. though not all are present in all patients.3 The only symptom that discriminates between it and other syndromes and diseases is multiple tender spots, which we have said were eighteen fixed locations on the body that when pressed firmly cause the patient to flinch.4 The diagnosis is now based on patient reports of a history of pain in five parts of the body, and patient reports of pain when at least 11 of 18 points cause pain when palpated by the examiner's thumb.5 Although the Mayo Clinic states that the syndrome is neither "progressive" nor "crippling,"6 the symptoms can be worse at some times than others.7 Objective tests are administered to rule out other diseases, but do not establish the presence or absence of fibromyalgia.8
Objective physical signs, laboratory results, and x-ray results are generally negative, and "[b]ecause the majority of patients appear tense and anxious and have no recognizable objective basis for symptoms, the syndrome is often considered psychogenic."9 This Court, however, has recognized fibromyalgia as a physical rather than a mental disease.10 (The disability plan in this case limits coverage for mental illness to two years, and that coverage is not claimed.) More recently, the American College of Rheumatology has issued a set of agreed-upon diagnostic criteria.11 According to the College, "[t]he symptoms of fibromyalgia are potentially `soft' and may be subject to examiner interpretation."12
Jordan complained of low back pain and leg pain to her physician, internist Nerendranath Reddy, who opined that she had fibromyalgia. Dr. Reddy referred Jordan to a neurologist, Mihoko Nelson. Dr. Nelson noted that Ms. Jordan was "in no acute distress" and "freely ambulatory" with "diffuse pain," and diagnosed fibromyalgia. Dr. Nelson then referred Jordan to a rheumatologist (the specialty area for fibromyalgia), Brian O'Connor. Dr. O'Connor noted "diffuse fibromyalgia and trigger spots of 10 out of a classic 19" (apparently referring to the 18 diagnostic points for pain on palpation recognized by the American College of Rheumatology). Dr. O'Connor stated, as his "working diagnosis," "viral-induced fibromyalgia/arthritis." Some months later, she had a "flare up of the myalgias" a week or so after "flu-like symptoms." Ms. Jordan reported that she did her own laundry, vacuuming, dusting, mopping, cooking and shopping, but not as often as she used to, and that she had discontinued her hobbies.
Travelers asked Dr. Reddy, Dr. Nelson, and Dr. O'Connor for narrative reports speaking, among other things, to her "prognosis regarding eventual return to work." None of the three physicians sent the requested reports. Despite its requests, which it repeated, MetLife did not receive any narrative report at any time from these physicians. It did not receive during its initial investigation (though it did later) any statement from any of them that Ms. Jordan's fibromyalgia made her unable to perform her work. In January of 1996, Travelers denied the disability claim on the ground that "while your activities may be limited to some degree by your symptoms of fibromyalgia, your condition is not of such severity as to preclude your ability to work at your sedentary occupation as an Administrative Sr. Secretary."
Ms. Jordan appealed, claiming that the condition was too severe to allow her to work. In April, she saw Dr. O'Connor again. This time, he noted 15 fibromyalgia trigger points, that is, points where, when he palpated with his thumb, she reported pain. In August, Travelers again wrote Dr. O'Connor as well as Dr. Reddy. The letters asked them to state, based on the diagnosis of fibromyalgia, "what prevented your patient from performing her occupation," and "what objective findings prevented her from performing sedentary work." This time Dr. Reddy, her internist, responded, writing that "patient can't function even sedentary work at present because of flare up of her fibromyalgia and intensity of pains." Her rheumatologist, Dr. O'Connor, again did not respond.
Travelers sent Ms. Jordan's file materials for an evaluation by an internist, J.W Rodgers, and by a rheumatologist, Jeffrey D. Lieberman. Dr. Rodgers wrote that "there is little objective evidence for a disabling medical dx [diagnosis] and I wonder about a nervous/mental dx such as depression/ anxiety" (Dr. O'Connor had prescribed Zoloft, an antidepressant). Regarding work, Dr. Rodgers wrote that "there is little evidence that the patient is physically incapacitated from gainful employment and that she could not do the customary activities" or the work in her job description. Dr. Lieberman, MetLife's rheumatologist, faulted the diagnostic impressions of Dr. O'Connor, Ms. Jordan's treating rheumatologist, on several grounds. These included treatment inconsistent with the standard treatment for fibromyalgia, Dr. O'Connor's error in how many trigger points were in the American College of Rheumatology standard diagnostic criteria, and that the virus he identified as the source of Ms. Jordan's "flareup" should have resolved "within several weeks or months at the most." Dr. Lieberman's conclusion was that "the severity of this patient's fibromyalgia is moderate," and she "should be capable of sedentary work" based on her job description.
Travelers sent Dr. O'Connor copies of the reports it had obtained from Dr. Rodgers and Dr. Lieberman. Dr. O'Connor responded with a terse letter, stating that "under her current state of affairs, she is medically disabled from her job as a secretary," but not explaining why. MetLife rejected Ms. Jordan's appeal on the ground that her fibromyalgia...
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