Bennett M. Cohen
An Insurance Company Cannot Properly Deny A Claim It Says Is Based Solely On “Self-Reports”
An insurance company will often deny a claim for total disability on the ground that is based solely on the claimant’s “self-reports.” The insurance company is especially likely to assert this “self-report” defense where the claimant suffers from a condition like chronic fatigue syndrome or fibromyalgia that rarely, if ever, produces any “objective findings” on imaging, laboratory testing or otherwise.
Where the treating doctor has made a diagnosis of a disabling condition and believes that the claimant’s symptoms are genuine, the insurance company’s “self-report” defense should fail. At its core, this defense is almost always deceptive because -- as most doctors will state or concede -- pain is inherently “subjective” and, as such, the nature and extent of the pain can almost never be “objectively” confirmed. However, in the ERISA context, case law clearly provides that where no “objective” evidence exists or can exist to corroborate disabling symptoms, an examining physician’s support of the claim is sufficient to meet the burden of proof. See e.g., Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666 (9th Cir. 2009), Eisner v. Prudential Ins. Co. of Am., 10 F. Supp. 3d 1104, 1117 (N.D. Cal. 2014).
When an insurer attempts to circumvent settled 9th Circuit law that an insurer cannot demand “objective medical evidence” of disability for a condition for which “objective medical evidence” does not exist (Salomaa v. Honda Long Term Disability Plan, supra at 678), the claimant should be able to successfully argue that he is disabled because of his diagnosis, his multiple symptoms -- and because his examining physician finds his reports of symptoms and limitations to be credible. Accordingly, where the treating physician supports the claimant and explains that the condition does not generate any “objective findings,” the court should not conclude that the claim is invalid because it is based solely on self-reports; rather, the court should conclude that the claimant has met his burden of proof.