Eleventh Circuit: Unum Erred by Denying Disability Benefits to Pharmacist with Cognitive Limitations Caused by Pain and Medication Side Effects

In S.S. v. Unum Life Insurance Company of America, No. 21-11593, 2022 WL 1772273 (11th Cir. June 1, 2022), the Eleventh Circuit reversed the district court’s judgment in favor of Unum Life Insurance Company, finding that Unum’s denial of Plaintiff’s continued claim for long-term disability benefits under an ERISA-governed disability plan was not reasonable. Plaintiff worked as a pharmacist from 1996 until a fall at work in January 2016 caused her spinal injuries and significant lower back pain. Plaintiff filed a claim for LTD benefits under her employer’s ERISA-governed disability plan which Unum insures. Unum ultimately paid Plaintiff two years of benefits under the LTD policy’s “regular occupation” standard of disability since it found she could not perform the “light duty” work required of a pharmacist. After 24 months, the standard of disability changed such that Plaintiff had to prove disability from “any gainful occupation” as defined under the LTD policy. At this time, Plaintiff still reported back and leg pain and cognitive side effects from her prescribed gabapentin medication. Though her Workers’ Compensation doctor opined that Plaintiff could return to work, Plaintiff’s other treating doctors supported work restrictions due to her severe lower back pain and spasms.

Unum did not approve Plaintiff’s claim under the any gainful occupation standard because its in-house registered nurse concluded that Plaintiff had the capacity to perform sedentary work based on her medical records, her report of activities (exercising, walking, cooking, cleaning, basket-making), and Mr. Vereb’s (her nurse practitioner) phone statement to Unum’s in-house physician that nothing prevented Plaintiff from performing sedentary office/desk-type work. Unum terminated Plaintiff’s claim and Plaintiff appealed. As part of her appeal, Plaintiff submitted a functional capacity evaluation (“FCE”) report and neuropsychological evaluation report which supported her physical and cognitive inability to sustain full-time employment. The neuropsych found cognitive impairments related to pan and medication side effects. Unum had Plaintiff’s records reviewed by an in-house neurologist who concluded that Plaintiff’s medical records and descriptions of her daily activities were inconsistent with the physical and cognitive impairments shown in the FCE and neuropsych report. Plaintiff filed suit and the district court ruled in favor of Unum, finding that Unum’s decision was not arbitrary and capricious.

The Eleventh Circuit disagreed with the district court as it found Unum’s denial of benefits both wrong on de novo review and unreasonable. On de novo review, the court disagreed with Unum that Plaintiff had the physical and cognitive capacity to work. The court found the FCE, Plaintiff’s doctor’s opinions, and the neuropsych report to be persuasive evidence supporting disability. However, the court did find that there was a reasonable basis for Unum to conclude that Plaintiff could physically perform sedentary level work since there were medical reviews which found that the FCE was inconsistent with some of the other records. The court found there was no reasonable basis to support Unum’s conclusion that Plaintiff had the cognitive capacity for work. The neuropsych was the only relevant medical testing in the record and it did not contradict any other medical records available to Unum at the time it made its decision. Unum could have obtained a second opinion, but it did not. Even though Plaintiff did not pass all the exam’s measures of validity, she did so on the testing for impairments which measure cognitive effort in problem solving, attention, and auditory processing. For this reason, there was no reasonable basis for Unum to disregard the test results altogether. The court also rejected Unum’s assertion that Plaintiff’s activities demonstrate a cognitive capacity consistent with full-time work. The court explained that “the fact that [Plaintiff] had the cognitive capacity to stay awake in the doctor’s office, browse the internet, and balance her bank account is not inconsistent with the psychologist’s conclusion that she lacked the capacity to work as a pharmacist or pharmacy manager.” Lastly, in making its decision, the court did not give much weight to Unum’s financial conflict of interest. Though Unum has a “remote” history of biased claims administration, it attested that it has taken steps to reduce potential bias and promote accuracy by walling off claims administrators from those interested in firm finances. The court reversed the entry of judgment in favor of Unum and left it to the district court to decide Plaintiff’s request for attorney’s fees in the first instance.