The recent case of Abrams v. Unum life Ins. Co. of America, 2022 US Dist. LEXIS 23195T0 highlights that a claimant may prevail on his/her disability claim without supporting objective medical evidence or even a proper diagnosis.


In April 2020 Mr. Abrams, who was a trial and appellate lawyer, began to experience frequent, almost daily, fevers. He also experienced severe fatigue and mental fogginess. He saw seven medical doctors with different specialties. He complained of the same symptoms of brain fog, fatigue, decreased attention and concentration and fevers. Three of his doctors diagnosed him with Long-Covid and four with Chronic Fatigue Syndrome (CFS). Though they disagreed on his actual diagnosis they all agreed that he could not return to his prior occupation. Neuropsychological testing did not find evidence of cognitive impairment but concluded that he was not malingering.


Abrams submitted a claim for disability benefits under his employer’s plan insured by Unum. Unum denied Mr. Abrams claim stating that he did not meet the criteria for CFS because the medical records did not support significant cognitive impairment required for the diagnosis of CFS. Unum’s doctors focused on the lack of objective evidence documenting an inability to perform the physical demands of Mr. Abrams’s occupation and failed to discuss his ability to satisfy the none physical demands.


The court found that the Mr. Abrams had met his burden of establishing his disability citing the fact that it was his symptoms not his diagnosis causing his inability to return to work. And that because of his symptoms he had not worked since April 2020, had not been paid since 2020, had exhausted his savings account, sold his house and drawn on retirement savings to afford daily life. “If plaintiff were able to work, then he would have done so prior to selling his home and exhausted his savings. Instead, plaintiff remains housebound and unemployed.”


The court found that Mr. Abrams was credible citing the above facts and the support of each of his seven treating doctors, the finding he was not malingering on the neurocognitive testing and the support of co-employees. In contrast Unum’s three reviewing doctors never examined or spoke to Mr. Abrams and thus could not assess his credibility. Rather they relied on a lack of objective medical evidence. The court was not impressed with Unum’s doctors relying on the lack of objective evidence where objective evidence wasn’t available to document the condition or its severity. (See Salomaa V. Honda Long Term Disability Plan 642 F.3d 666 (9th Cir. 2011); Holmstrom v. Metropolitan Life Ins. Co., 615 F.3d 758 (7th Cir. 2010) and Myers v. Aetna Life Ins. Co., 2020 U.S. Dist. LEXIS 238153.)