In Demko v. Unum Life Ins. Co. of America, 2019 U.S. App. LEXIS 31102 (9th Cir. Oct. 15, 2019), the Ninth Circuit affirmed Unum Life's determination that a Hollywood executive diagnosed with fibromyalgia was not disabled from performing her own occupation.

Disclaimer: Hinshaw represented Unum Life in all phases of the ERISA litigation.

Plaintiff Kelly Demko ("Demko") was diagnosed with fibromyalgia in 2009, but thereafter continued to work as a human resources executive for Amblin Entertainment. In January 2016, Demko stopped working and submitted a claim for long-term disability (LTD) benefits under her employer's LTD plan, claiming her fibromyalgia had become disabling, with "all over deep pain, foggy feeling, [and] severe depression."

In the months before she stopped working, Demko's medical records revealed that her fibromyalgia-related complaints were generally stable and well-controlled, and her diagnostic findings and physical examinations were normal, with no exacerbation or change in her condition. Additionally, Demko's prescribed treatment plan was conservative and lacked the more aggressive pain management and other treatment techniques one would expect for a patient with the disabling complaints Demko reported to Unum Life Insurance Company of America ("Unum Life"). Furthermore, Demko's psychiatrist reported that her cognitive functioning was normal, and her primary care physician routinely recorded normal mental status and cognitive functioning examination results.

Unum Life also contacted Demko's employer, who reported that Demko's work performance and work schedule had not changed in any way before she stopped working. The employer told Unum Life that Demko had stopped working because she was "terminated due to violation of company policy."

The district court reviewed Unum Life's claim decision de novo. In affirming the decisions, the court concluded that Demko did not show that her medical conditions rendered her totally disabled under the plan, and added that "mere subjective" complaints are insufficient to establish total disability.

Demko appealed to the Ninth Circuit. A panel of three judges affirmed the district court's decision, concluding that the court did not err in finding that Demko "was able to perform her job normally until she was terminated for non-medical reasons." The Ninth Circuit also rejected Demko's objections to the district court's evaluation of the evidence. The panel noted, inter alia, that the court had accorded Demko's treating physicians the "greatest weight" and did not rely heavily on the opinions offered by Unum Life's doctors, and also held that "an independent medical examination was not required, particularly when Demko proffered insufficient evidence to establish disability." Additionally, the panel held that "the district court duly considered Demko's subjective complaints, and reasonably concluded that they did not establish the requisite level of disability."

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