Judge Frowns on LTD Insurer Cherry-Picking Medical Evidence

On May 8, a federal court in Washington state held that Aetna must pay back and future long-term disability benefits that had been denied to a claimant with multiple sclerosis, depression and other impairments. The judge was especially troubled by the insurer’s practice of “cherry-picking” through the medical evidence in the record.

This LTD insurer practice is, unfortunately, an all-too-common basis for denying disability benefits. In cherry-picking, the insurer sifts through the medical record, emphasizing evidence that is less serious, while ignoring test results, symptoms and doctors’ opinions that support a finding of severe disability.

The Gorena Case

In Gorena v Aetna Life Insurance Company, the plaintiff, Sarah Gorena, worked at Boeing in a Staff Analyst position for over a decade before applying for LTD benefits based on MS. She was treated for many years by a Dr. Reif, a recognized MS specialist.

The Administrative Record

The opinion reviews the medical evidence in detail, including multiple MRIs showing increasing numbers of spinal and brain lesions. The claimant also experienced MS-related depression and severe constipation. Over time, Dr. Reif observed multiple problems with balance, falling, optic damage, depression, fatigue, bladder control, weakness, speech and cognition.

Dr. Reif felt that the Gorena was permanently disabled with severely restricted functioning, making the claimant “incapable of minimal (sedentary) activity,” and that the plaintiff “would never return to work.” In addition, the claimant’s GI doctor and psychiatrist also found her disabled from working.

Aetna denied the claim initially and on appeal. The claimant filed her lawsuit for de novo review of the denial under ERISA. ERISA is a federal law imposing high standards of fairness, fiduciary duties and required procedures during claim processing.

Cherry-Picking

The judge found:

• The insurer’s reviewers either mischaracterized or ignored medical evidence that supported disability. For example, they did not acknowledge lesions shown by MRIs or Dr. Reif’s observations of severe disability and symptoms that would prevent work.
• A reviewing doctor said the claimant could hold a full-time sedentary job in direct contrast to Dr. Reif’s opinion. To support this, the reviewer “cherry-pick[ed] every phrase or sentence … indicative of some aspect of [p]laintiff’s condition that was ‘stable’ or ‘normal’.”
• Aetna’s experts had a pattern of attributing the claimant’s abnormal symptoms to “everything except her MS.”
• Gorena’s subjective complaints were discounted without a reason to question her credibility.
• Aetna did not order an independent medical exam.

The court ordered benefits paid because the evidence “unquestionably” supported the claimant’s assertion of disability and inability to work. The judge concluded that Aetna had breached its fiduciary duty to evaluate the claim in the interest of beneficiaries.

The opinion is available on Westlaw at 2018 WL 2113952.

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