Menu Close Menu

What If My Disability Consists Primarily of Subjective Complaints?

You can still get disability. The cases of Shaw v. AT&T Umbrella Benefits Plan No. 1, 795 F.3d 538 (6th Cir. 2015), Godmar v. Hewlett-Packard Company, 631 Fed. App'x 397 (6th Cir. 2015), and Zuke v. Metro. Life Ins. Co., 2016 WL 1258220 (6th Cir. 2016), have revived the older case of Smith v. Continental Casualty Co., 450 F.3d 253 (6th Cir. 2006), which collectively hold that in cases where a claimant's subjective complaints are the primary disabling impairment, an insurance company's credibility findings concerning those complaints without the benefit of a physical exam is arbitrary and capricious even under an objective evidence standard. These 6th Circuit cases have found footholds in other jurisdictions and this is exciting because it really helps the vast majority of our clients who suffer from chronic pain, fatigue and lapses in concentration. There is plenty of other favorable case law on this matter: Krupp v. Liberty Life Assurance Company of Boston, 936 F.Supp.2d 908, 917 (N.D. Ill. 2013) (subjective evidence cannot be discounted simply because it is “self-serving”); Diaz v. Prudential Ins. Co. of America, 499 F.3d 640, 645 (7th Cir. 2007) (finding claimant & subjective complaints of pain disabling where corroborated by extensive treatment including heavy medication and repeated surgical procedures); Hawkins v. First Union Corp., 326 F.3d 914 (7th Cir.2003) (complaints of pain cannot be dismissed out of hand because they are subjective); Brooking v. Hartford Life & ; Accident Ins. Co., 167 Fed. Appx. 544, 549 (6th Cir. 2006) (subjective complaint like pain “often evades detection by objective means.”); accord Mitchell v. Eastman Kodak, 113 F.3d 433, 442-43 (3d Cir. 1997) (chronic pain syndrome); see also, Kosibu v. Merck & ; Co., 384 F.3d 58, 62 n.3 (fibromyalgia); Green-Younger, 335 F.3d 99, 108 (2d Cir. 2002) (fibromyalgia); Abram v. Cargill, Inc., 395 F.3d 882, 887 n.3 (8 th Cir. 2005) (While fatigue is difficult to assess, disability plan administrators may not require objective medical evidence of the cause if there is consistent evidence of disability symptoms, and no finding that the claimant is not credible in her complaints); see also, Mitchell, 113 F.3d at 442-43; Wilkins v. Hartford Life & ; Acc. Ins. Co., 299 F.3d 945, 947 n. 1 (8th Cir.2002); Fisher v. Aetna Life Ins. Co., 890 F. Supp. 2d 473, 483 (D. Del. 2012) (a denial of benefits based on a lack of objective medical evidence to substantiate plaintiff's subjective complaint of headaches is arbitrary and capricious); Morgan v. The Prudential Insur. Co. of Am., 755 F. Supp. 2d 639, 647 (E.D. Pa. 2010) (statement by Prudential's reviewing doctor that claimant's chronic pain is not documented by objective findings cannot be used to support a conclusion that the claimant is not disabled); Heim v. Life Insurance Company of North America, 2012 WL 947137 *9 (E.D. Pa. 2012) (“A plan administrator cannot refuse to consider subjective reports of pain.”); Elms v. Prudential Ins. Co. of America, 2008 WL 4444269 *14, n.21 (E.D. Pa. 2008) (noting “plan administrators must be wary of denying claims because of a lack of objective evidence when the disabling condition on which the claimant rests her case rests heavily on subjective evidence”).


Seth has always been compelled to excel, whether it meant earning his Eagle Scout as a teenager, participating in theater, debate and varsity football in high school, his Rhodes Scholar candidacy in college, or opening his own law firm. He also perseveres in situations others might shy away from, whether it involves sky-diving, rappelling down a mountain, white-water rafting, participating in marathons and triathlons, writing a novel, or lecturing nationally to large audiences about the vagaries of ERISA.


Seth is committed to serving disabled individuals. He is proud of his work in prominent organizations such as the American Association for Justice (AAJ), the Tennessee Bar Association (TBA) and Hospice. Seth is past-Chair of both AAJ's & TBA's Disability Law Sections, past-President of the Chattanooga Trial Lawyers Association, a 2-time recipient of the Pro Bono Excellence Award, and a 7 year member of the Board of Directors for Hospice of Chattanooga.