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The Seventh Circuit Court of Appeals reversed the lower court's dismissal of Hugo Diaz's case this week. (Diaz v. Prudential) His case will now be reinstated so that evidence of his disability can be presented during a trial. Diaz was a computer analyst at Bank One in Chicago. (Bank One has since been taken over by JPMorgan Chase) Diaz began experiencing persistent lower back pain; he was diagnosed with degenerative disc disease and radiculopathy. For about two years, he underwent a series of medical treatments including lumbar epidural steroid injections, physical therapy, and pain medication. Diaz underwent a lumbar fusion procedure with hardware implantation to correct an annular tear at the lumbosacral joint (L5-S1). Although postoperative examinations showed that the hardware alignment was satisfactory and there were no neurological deficits in his lower extremities, Diaz continued to report varying levels of pain in his back and legs. His doctors could not find anything related to the operation that might have been causing this pain. After months of ineffective physical therapy and pain medication, he concluded that he could not return to work. Diaz submitted a claim for benefits under the LTD Plan alleging that the back pain had rendered him disabled. He supported his application with several doctors' notes expressing the opinion that his condition prevented him from sitting for more than fifteen to twenty minutes at a stretch. Prudential denied the claim on the ground that his reported inability to perform his job was not consistent with the medical evidence. Diaz sought reconsideration of the rejection and supported his request with additional medical evidence, but Prudential upheld its negative decision. After Diaz filed a second appeal, Prudential submitted his medical documentation to its medical consultant, Dr. Gale Brown, for review. Although Dr. Brown did not personally examine Diaz, she opined based on Diaz's medical records that the clinical and diagnostic evidence relating to Diaz's lumbar spine condition did not support Diaz's reports of persistent pain. She concluded that while Diaz had a "temporary musculoskeletal impairment related to L5-S1 fusion from 1/2002 through 8/05/02," subsequent to August 5, Diaz's condition did not prevent him from performing his job on a full-time basis. Dr. Brown noted, however, that there were non-physical factors that were having an adverse impact on Diaz's ability to engage in gainful employment, including his anxiety over losing his job, depression, and opioid dependency. Diaz was not seeking benefits on any of those bases. Prudential again upheld its decision denying Diaz's long-term disability benefits. Echoing Dr. Brown, the district court stated that Diaz had been, "unable to submit reliable proof of both a continuing disability and treatment by a doctor." The emphasis there must have been on the word "reliable," because Diaz had in fact submitted a great deal of evidence. The court, however, was unimpressed by his evidence: "None of the x-rays, medical reports or physical therapist notes supported Diaz's claim of continued back pain. Plainly put, there is nothing that would prohibit Diaz from performing his duties at his job at Bank One on a full time basis beyond August 5, 2002." The Court of Appeals disagreed. The Court of Appeals held that the district court's task is to make an independent decision about a claimant's eligibility for disability benefits. That means that, "the question before the district court was not whether Prudential gave Diaz a full and fair hearing or undertook a selective review of the evidence; rather, it was the ultimate question whether Diaz was entitled to the benefits he sought under the plan." Under the Group Policy, the medical documentation surrounding Mr. Diaz's condition and symptoms is compared to the functions of his occupation as it is normally performed. According to the Dictionary of Occupational Titles, Mr. Diaz's regular occupation is considered sedentary. The U.S. Department of Labor defines sedentary work as exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary in nature if walking and standing are required only occasionally and all other sedentary criteria are met. Given this definition and job description, Diaz needed only to submit evidence that, if believed, would show that he could not "sit[ ] most of the time" in order to be eligible for long-term disability benefits. As Prudential's consultant Dr. Brown said, "[t]he medical evidence beyond this period does not support residual musculoskeletal or neurological impairment that would preclude Mr. Diaz from performing the essential duties of his own sedentary occupation on a full-time basis, with minor accommodation...." The Court found that those facts, however, do not exist in a vacuum: "Diaz's testimony cannot be discounted simply because it is 'self-serving' or because it is not 'medical' or 'neurological' evidence." The Court cited examples of self-reported symptoms including headache, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy." The Court found that, "[t]hese provisions erase any doubt that Diaz is entitled to benefits notwithstanding the fact that some of his evidence consists of subjective reports of his pain." Diaz's testimony offers more than a long series of complaints spoken across the breakfast table. It demonstrates the kind of "long history of disability" that supports a finding of disability. The Diaz court relied on prior case law stating that, "[the claimant] would [not] have undergone the pain-treatment procedures that she did, which included not only heavy doses of strong drugs such as Vicoden Toradol, Demerol, and even morphine, but also the surgical implantation in her spine of a catheter and a spinal-cord stimulator, merely in order to strengthen the credibility of her complaints of pain and so increase her chances of obtaining disability benefits." Diaz's repeated attempts to seek treatment for his condition supported an inference that his pain, though hard to explain by reference to physical symptoms, was disabling. The district court was further criticized for giving no weight to Diaz's doctors' notes regarding his back pain on numerous occasions and various drugs prescribed to alleviate it, including Lortab, Ambien, Durgesic patches, Norco, Zanaflex, Kadian, and Neurontin. This medical evidence was held to support Diaz's claim that he was disabled by the pain. The Diaz court recalled that, "[w]e have drawn inferences from the fact that trained medical professionals responded to a claimant's call for help in the past," commenting on "the improbability that [plaintiff] is a good enough actress to fool a host of doctors and emergency-room personnel into thinking she suffers extreme pain; and the (perhaps lesser) improbability that this host of medical workers would prescribe drugs and other treatment for her if they thought she were faking her symptoms." Finally, Diaz's doctor notes stated that he was "unable to sit more than 20 minutes or walk > 5 Blocks," and indicated that the following restrictions were necessary: "No Repetitive Bending, Twisting, Torque / No Sitting greater than 15 min, No Lift > 10 lb." He opined that Diaz could not do "sedentary" work and noted that during an eight-hour day, Diaz could "stand and walk (with normal breaks)" or "sit (with normal breaks)" for "less than 2 hrs," a length of time insufficient for full-time work. The Diaz Court held that, "[u]nder those conditions, notwithstanding the fact that he could sometimes sit or sometimes stand or sometimes walk, he could not perform either his regular duties or the duties of any sedentary job." The Court of Appeals reversed the district court because it "failed to consider the difference between a person's being able to engage in sporadic activities and her being able to work eight hours a day five consecutive days of the week." This ruling is a tremendous victory for Diaz and other disabled people like him who will finally have their evidence of disability, including subjective evidence, properly considered in it entirety. 
Alan C. Olson practices disability law from his offices in New Berlin, Wisconsin, and throughout the United States. AOlson@GetMyLTDbenefits.com
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