Cherry-Picking Evidence and how it Hurts Disability Claimants

Disability insurers all too often engage in a behavior known in the industry and among claimants’ advocates as cherry-picking. Cherry-picking refers to a practice of insurance administrators or consulting doctors who selectively assign undue weight to particular records and ignore others when they analyze medical records to determine whether claimants are disabled and eligible for benefits.

In cherry-picking, administrators or consulting doctors give undeserved weight to evidence that tends to minimize medical conditions and their symptoms. The other side of cherry-picking is to ignore or unreasonably discount medical evidence that supports claimants’ allegations of disabling illness, injury and symptoms.

Cherry-picking practices tend to ignore the findings and opinions of treating or examining physicians who had the opportunity of direct observation of the patient, and embrace opinions of nonexamining professionals who only review the paper records of others.

An insurer or its employees or contractors may not only unfairly discount the opinions of treating doctors, however. Any opinion supporting disability, even that of a consulting doctor paid by the insurer, could be ignored in favor of any other evidence not in support such as a vocational analysis that says a claimant could work despite overwhelming medical evidence to the contrary.

An experienced attorney representing a short- or long-term disability claimant whose claim has been denied or benefits terminated will know how to point out to a reviewing court the practice of cherry-picking. Courts have found this kind of analysis to be an abuse of discretion, a breach of fiduciary duty or an arbitrary or capricious insurance practice.

In one case from the U.S. Court of Appeals for the Sixth Circuit, cherry-picking is explained well. The court said in Metropolitan Life Ins. Co. v. Conger that it is an abuse of discretion to selectively review the evidence to find evidence to justify cutting off benefits. The court found that the insurance administrator had focused on “slivers of information that could be read to support a denial of coverage and ignored — without explanation — a wealth of evidence that directly contradicted its basis for denying coverage.” This process was not “deliberate or principled” and was “far from reasoned …” Further, the possibility of a contrary conclusion, despite “overwhelming evidence to the contrary” is not a sufficient basis to deny or terminate benefits.

There must be a reasonable — and reasoned — explanation for rejecting doctors’ conclusions supporting disability. Not doing so can amount to an abuse of insurer discretion.