DECOVICH v. ANTHEM LIFE INSURANCE COMPANY (2018)

MEMORANDUM **

Plaintiff-Appellant Miae Decovich sought long-term disability benefits due to consistent and widespread pain caused by fibromyalgia.

Fibromyalgia is characterized by widespread aches and pains in [ ] muscles, ligaments and tendons. The pain may vary from a deep muscle ache to a burning, throbbing, shooting or stabbing sensation. Aside from tenderness with pressure at various locations, there are no related physical abnormalities․ Symptoms may persist for years or may go away only to recur. Researchers don’t believe there’s one single cause of fibromyalgia. It’s thought to be a condition that results from abnormal pain regulation and processing․ Conditions associated with fibromyalgia include irritable bowel syndrome, chronic headache, and facial pain․ Diagnosing fibromyalgia is difficult because there isn’t a single specific diagnostic laboratory test. In fact, before receiving a diagnosis of fibromyalgia, you may go through several medical tests ․ only to have the results come back normal. These tests can rule out other conditions ․ but they can’t confirm fibromyalgia․ The disorder is chronic but not progressive, crippling, or life-threatening. It shouldn’t lead to disability and it generally doesn’t lead to other, more serious disorders. However, it can cause depression and interfere with sleep and [ ] overall quality of life.

Scott Litin, Mayo Clinic Family Health Book 966 (4th ed. 2009); see also Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute because it ․ can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”). We have “recognized fibromyalgia as a physical rather than a mental disease.” Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 873 (9th Cir. 2004), abrogated on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir. 2006) (en banc).

Decovich claimed benefits solely based on her physical illness—fibromyalgia. Defendant-Appellee Anthem Life Insurance (“Anthem”) denied the claim, concluding that, while Decovich suffered from fibromyalgia, she was able to perform her duties as a dealer at a casino and therefore was not disabled as that term was defined in the insurance plan, i.e., “a significant change in [ ] physical or mental condition due to ․ [s]ickness ․ [that] prevents you from performing ․ the Essential Functions of your Regular Occupation.” After Decovich filed a complaint against Anthem challenging that determination, the district judge granted summary judgment to Anthem. We reversed. Decovich v. Anthem Life Ins. Co., 591 F. App'x 567 (9th Cir. 2015).

Our prior order held that “Decovich never claimed to be disabled based on a ‘mental condition,’ ․ so [the claim administrator’s] conclusion that there was no warrant to explore those conditions could not have been a reason for denying benefits.” Id. at 569. On remand, the district court concluded that “the Ninth Circuit’s memorandum now obligates this court to evaluate plaintiff’s denial of benefits ․ without consideration to any alleged mental condition.” Decovich v. Venetian Casino Resort, LLC, No. 2:11-CV-872 JCM, 2017 WL 388819, at *4 (D.Nev. Jan. 26, 2017).

In holding that Decovich’s disability claim was based on a physical, rather than a mental, condition, we did not order the district judge to disregard evidence of mental symptoms caused by her physical condition. Decovich asserts that the district judge did just that: In parsing evidence of a disability claim based on mental illness, he improperly disregarded mental symptoms caused by her fibromyalgia, a physical disorder. We agree with Decovich that, in order to evaluate her disability claim, the district judge had to consider all relevant symptoms, both physical and mental, as long as they resulted from Decovich’s fibromyalgia. Symptoms caused by a separate mental illness may properly be disregarded.

Ultimately, though, it is unclear from his opinion whether the district judge viewed her symptoms as caused by fibromyalgia or a distinct mental illness. The district court never made explicit factual findings as to whether Decovich suffered from both depression and fibromyalgia, or the extent to which any symptoms that impaired her ability to perform her job were attributable to either her fibromyalgia or an unrelated mental illness.

Accordingly, we remand this case to the district judge for additional fact finding as to the precise source of Decovich’s symptoms—both physical and mental. Specifically, the district court must, in the first instance, determine whether Decovich has met her burden of proof to establish that her depression, anxiety, and other mental conditions are symptoms resulting from her fibromyalgia. Additionally, for any symptoms that are attributable to her fibromyalgia, the district judge must decide whether the evidence supports a conclusion that the negative effects of those symptoms rise to the level of disability, as that term is defined in the insurance plan.

VACATED and REMANDED.