Williams, Lee K. v. Aetna Life Insur Co ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3824
LEE K. WILLIAMS,
Plaintiff-Appellant,
v.
AETNA LIFE INSURANCE COMPANY and
THE SYSCO CORPORATION GROUP BENEFIT PLAN,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 6228—Ronald A. Guzman, Judge.
____________
ARGUED SEPTEMBER 28, 2007—DECIDED NOVEMBER 1, 2007
____________
Before POSNER, FLAUM, and SYKES, Circuit Judges.
FLAUM, Circuit Judge. Plaintiff Lee Williams was a
truck driver for the SYSCO corporation from 1994-2002
and a participant in the company’s long term disability
(“LTD”) plan. On July 26, 2002, Williams became ill, and
late that year was diagnosed with chronic fatigue syn-
drome (“CFS”). Williams applied for LTD benefits, but
his claim was denied May 12, 2003 for failing to show
both a “diagnosable condition” explaining Williams’s
“subjective symptoms of fatigue,” and that Williams was
unable to perform his job functions. Williams’s treating
physician then submitted a CFS residual functional
capacity questionnaire and Williams appealed his denial
2 No. 06-3824
of benefits. On January 9, 2004, Williams’s appeal was
denied due to insufficient evidence as to whether Williams
was unable to perform his job functions. Williams then
brought suit in the Northern District of Illinois. The
parties filed cross-motions for summary judgment. The
district court granted defendants’ motions for summary
judgment and denied Williams’s motion. This appeal
followed. For the following reasons, we affirm the dis-
trict court’s rulings.
I. Background
The plaintiff/appellant, Lee Williams, was born in 1959
and worked as a truck driver for the SYSCO corporation
from November 1, 1994 until July 26, 2002. Williams’s
job required that he be able to do the following: occasion-
ally climb ladders, kneel, twist, and stoop; frequently climb
stairs, pull, push, reach, grasp, sit, stand, walk, and use
fine and gross manipulation; and continuously lift, carry,
and bend. Williams also had to be able to lift up to 20
pounds continuously, up to 50 pounds frequently, and up
to 100 pounds occasionally.
Williams participated in the SYSCO Corporation Group
Benefit Plan (“the Plan”), which included long-term
disability (“LTD”) benefits to employees. The Plan is
maintained by SYSCO, with Aetna Life Insurance
(“Aetna”) serving as the underwriter and claims adminis-
trator for the LTD policy. Aetna is vested with “discretion-
ary authority to: determine whether and to what extent
employees and beneficiaries are entitled to benefits; and
construe any disputed or doubtful terms of [the] policy.”
Under the Plan, for purposes of the claim in this case, an
employee is disabled and entitled to benefits if: “you are
not able to perform the material duties of your own
occupation because of: disease or injury; and your work
earnings are 80% or less of your adjusted predisability
earnings.”
No. 06-3824 3
Williams became sick on July 26, 2002 and complained
of fatigue, shortness of breath, dizziness, and cough. These
symptoms continued after Williams was released from the
hospital. Williams subsequently underwent a number of
different tests to determine what was causing his fatigue
and weakness. In early 2003, after ruling out other
conditions that could be responsible for Williams’s chronic
fatigue, Dr. John Sorin, a specialist in immunology and
CFS at Northwestern Hospital, diagnosed Williams
with CFS.
A. Williams’s Application for LTD Benefits
In February 2003, Williams applied for LTD benefits
under the Plan. In March 2003, SYSCO sent Aetna a
physical demand analysis, which detailed Williams’s job
requirements. In addition to Williams’s application, Dr.
Sorin submitted an Attending Physician Statement (“APS”)
explaining that Williams had been diagnosed with CFS.
This APS also expressed that Williams was unable to
perform his regular occupation, stating that Williams had
a “Class 5” physical impairment, meaning he was unable
to perform even minimal sedentary activity and was
severely limited in his functional capacity.
Aetna referred Williams’s application to Dr. Brent
Burton, who was asked to review the file and comment on
reasonable limitations and restrictions for Williams. On
May 5, 2003, Dr. Burton submitted a report to Aetna,
which stated in part:
[T]he medical data in this case do not provide any
documentation that Mr. Williams has a diagnosable
medical condition that explains his subjective symp-
tom of fatigue. The physical examination data do not
reveal evidence of significant loss of range of motion,
strength, sensation, coordination, etc., to justify
4 No. 06-3824
discontinuation of workplace activities. There are no
data to indicate that Mr. Williams has sufficient
impairment to render him unable to work in his usual
occupation as a truck driver.
On May 12, 2003, Aetna long-term disability analyst Kaz
Takashima denied Williams’s claim for disability in a
letter erroneously dated April 25, 2003. The letter sum-
marized Williams’s medical records and echoed nearly
word-for-word Dr. Burton’s reasoning quoted above for
denying benefits to Williams.
B. Williams’s Appeal
After Aetna denied Williams LTD benefits, Dr. Sorin
wrote a note to Aetna on May 19, 2003 clarifying that
Williams was under his care for CFS and that, although
Williams was showing signs of recovery, he was still
unable to resume his employment. On August 11, 2003, Dr.
Sorin completed a CFS residual functional capacity
questionnaire regarding Williams’s diagnosis and func-
tional limitations. On this form, Dr. Sorin diagnosed
Williams with CFS, but did not fully answer all the
answers with respect to Williams’s functional limitations.
On this questionnaire, Dr. Sorin did mark boxes re-
flecting that Williams’s fatigue constantly interfered with
his attention and concentration; that Williams could
occasionally twist, stoop, crouch, and climb; and that
Williams would have both “good days” and “bad days,”
leading him to miss more than four day of work each
month. Other parts of the questionnaire however, were
not fully completed. For example, Dr. Sorin marked
that Williams was only capable of low stress jobs, but left
blank the section asking for an explanation for this
conclusion. In another section, Dr. Sorin wrote that
Williams could walk one to two city blocks without rest,
No. 06-3824 5
marked that Williams could only stand or walk less
than two hours a day, and checked that Williams needed
a job where he could shift positions at will. In this same
section however, Dr. Sorin did not fill out how many hours
or minutes Williams could sit or stand at one time, and
instead wrote in the margin that this was “unknown.”
With respect to lifting, Dr. Sorin marked that Williams
could occasionally lift less than ten pounds, but failed to
fill out the form with respect to the higher weight amounts
listed. Finally, Dr. Sorin marked that Williams had
significant limitations doing repetitive reaching, handling,
or fingering, but in the section where the form asked the
percentage of time during a working day that the patient
can perform these activities, Dr. Sorin wrote “untested” in
the margin.
On September 10, 2003, Williams, operating through
counsel, appealed Aetna’s denial of his claim. On January
9, 2004, Aetna issued a letter to Williams upholding its
denial. The letter stated that, while Aetna had reviewed
the information submitted on appeal, this information
failed to document that Williams was physically impaired
from working as a truck driver. The denial letter then
specifically cited several of the items left incomplete on
Dr. Sorin’s questionnaire. The letter concluded:
Although Dr. Sorin diagnosed Mr. Williams with
chronic fatigue syndrome, the functional impairment
you assert prevents Mr. Williams from working in
his own occupation is not apparent. There is no rec-
ord that Mr. Williams’ functional capacity was tested
to accurately determine his limitations and restric-
tions. As Dr. Sorin stated in his report Mr. Williams
was not tested for many of the functions he claims
he is unable to perform such as lifting, sitting and
standing. Without such evidence, we are unable to
reverse our decision and Mr. Williams [sic] will remain
closed.
6 No. 06-3824
Following this denial, Williams sent Aetna a letter on July
28, 2004, requesting a copy of his claim file and notifying
Aetna that he had been deemed disabled by the Social
Security Administration.
C. Procedural History
Williams then brought this suit against Aetna and the
Plan under § 1132(a)(1)(B) of ERISA, claiming he
was wrongfully denied long-term disability benefits. On
September 28, 2003, the district court ruled on four
motions brought by the parties. Williams only appeals
two of these rulings. Williams does not challenge the
district court’s denial of Williams’s motion to strike
Takashima’s affidavits, which verified that Aetna’s
initial denial letter was erroneously dated April 25, 2003
and was in fact mailed on May 12, 2003. He also does not
contest the district court’s grant of summary judgment
for Aetna on the basis that it was not a proper party to
the lawsuit.1 Williams does however, appeal the district
court’s denial of summary judgment on his claims and
grant of summary judgment for the Plan. For the following
reasons, we affirm the district court’s decision.
1
Williams has continued to name Aetna as a party to the
lawsuit along with the SYSCO Benefit Plan, but has not ad-
dressed this issue at all in his appeal on summary judgment
and continually refers to the “defendant” in the singular in his
briefs. Any claim regarding this issue is therefore waived. See
Heft v. Moore, 351 F.3d 278, 285 (7th Cir. 2003) (“[t]he failure
to cite cases in support of an argument waives the issue on
appeal”).
No. 06-3824 7
II. Discussion
A. Standard of Review
This court reviews a district court’s decision on sum-
mary judgment de novo. Davis v. Unum Life Ins. Co. of
Am., 444 F.3d 569, 574 (7th Cir. 2006) (citations omitted).
“Summary judgment is proper when the ‘pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.’ ” Tegtmeier v. Midwest Operating Eng’rs Pension
Trust Fund, 390 F.3d 1040, 1045 (7th Cir. 2004) (quoting
Fed. R. Civ. P. 56(c)). “With cross-motions, our review of
the record requires that we construe all inferences in favor
of the party against whom the motion under consideration
is made.” Id. (quotations and citations omitted).
With respect to this court’s review of the Plan’s denial of
LTD benefits to Williams, the Supreme Court has held
that “a denial of benefits challenged under § 1132(a)(1)(B)
is to be reviewed under a de novo standard unless the
benefit plan gives the administrator or fiduciary discre-
tionary authority to determine eligibility for benefits or
to construe the terms of the plan.” Firestone Tire & Rubber
v. Bruch, 489 U.S. 101, 115 (1989). Here, because the
Plan’s administrator does have discretionary authority, the
court reviews Williams’s denial of benefits under the
arbitrary and capricious standard. See Hackett v. Xerox
Corp. Long-Term Disab. Income, 315 F.3d 771, 773 (7th
Cir. 2003) (“Where the plan does grant discretionary
authority to the administrator, the court reviews the
decision under the arbitrary and capricious standard.”)
Under this highly deferential arbitrary and capricious
standard, “the administrator’s decision will only be
overturned if it is ‘downright unreasonable.’ ” Tegtmeier,
390 F.3d at 1045 (quoting Carr v. Gates Health Care Plan,
8 No. 06-3824
195 F.3d 292, 295 (7th Cir. 1999)). Despite the deferential
nature of this standard however, it “is not a rubber stamp”
and a denial of benefits will not be upheld “when there
is an absence of reasoning in the record to support it.”
Hackett, 315 F.3d at 773. Therefore, this court will uphold
the Plan’s determination “as long as (1) it is possible to
offer a reasoned explanation, based on the evidence, for a
particular outcome, (2) the decision is based on a reason-
able explanation of relevant plan documents, or (3) the
administrator has based its decision on a consideration
of the relevant factors that encompass the important
aspects of the problem.” Sisto v. Ameritech Sickness &
Accident Disability Benefit Plan, 429 F.3d 698, 700 (7th
Cir. 2005) (quoting Houston v. Provident Life & Accident
Ins. Co., 390 F.3d 990, 995 (7th Cir. 2004)).
B. Objective Evidence of Functional Incapacity
Chronic fatigue syndrome, like fibromyalgia, poses
unique issues for plan administrators, since for both
conditions, “[i]ts cause or causes are unknown, there is
no cure, and, of greatest importance to disability law, its
symptoms are entirely subjective.” Hawkins v. First Union
Corp. Long-Term Disability Plan, 326 F.3d 914, 916 (7th
Cir. 2003); McPhaul v. Board of Commissioners of Madi-
son County, 226 F.3d 558, 562 (7th Cir. 2000). The Plan
in this case initially denied Williams’s application for
LTD benefits on two grounds: (1) that Williams’s fatigue
had not been explained by a diagnosable medical condi-
tion, and (2) that Williams had not provided any objective
evidence that he was functionally impaired from continu-
ing to work as a truck driver. On appeal, the administrator
acknowledged that Williams had been diagnosed with CFS,
but determined that the questionnaire completed by Dr.
Sorin did not reflect that Williams’s functional capacity
had been accurately tested. Williams argues that because
No. 06-3824 9
fatigue is inherently subjective, Aetna acted improperly
when it denied Williams’s claim on the basis of a lack of
objective support in the record.
This court has expressed concern over the distinction
between subjective and objective evidence of symptoms
such as pain and fatigue. See Hawkins, 326 F.3d at 919
(“But the gravest problem with the [medical consultant’s]
report is the weight he places on the difference between
subjective and objective evidence of pain.”); see also Diaz
v. Prudential Ins. Co. of America, No. 06-3822, 2007 WL
2389773, at *5 (7th Cir. Aug. 23, 2007) (discussing the
relevance of the claimant’s “subjective assessment of his
pain”). The court squarely addressed this issue with
respect to fibromyalgia in Hawkins. There, the court found
a plan had acted arbitrarily and capriciously largely
because it based its denial of benefits on its medical
consultant’s belief that a claimant could never be found
to be disabled due to fibromyalgia because the amount of
pain an individual experiences is subjective in nature.
Hawkins, 326 F.3d at 919.
Therefore, under Hawkins, the Plan could not deny
Williams’s application for benefits solely on the basis that
fatigue is subjective. As the district court correctly deter-
mined, it was thus improper for the Plan to initially deny
benefits to Williams on the basis that his subjective
symptoms of fatigue did not lend themselves to medical
diagnosis. Williams v. Aetna Life Insurance Co., No. 04
C 6228, 2006 WL 2794969, at *6 (N.D. Ill. Sept. 28, 2006).
A distinction exists however, between the amount of
fatigue or pain an individual experiences, which as
Hawkins notes is entirely subjective, and how much an
individual’s degree of pain or fatigue limits his func-
tional capabilities, which can be objectively measured.
Other circuits have drawn this same distinction. See
Boardman v. Prudential Insurance Co. of America, 337
F.3d 9, 16 n.5 (1st Cir. 2003) (“While the diagnoses of
10 No. 06-3824
chronic fatigue syndrome and fibromyalgia may not lend
themselves to objective clinical findings, the physical
limitations imposed by the symptoms of such illnesses do
lend themselves to objective analysis.”); see also Denmark
v. Liberty Life Assur. Co., 481 F.3d 16, 37 (1st Cir. 2007)
(following the distinction drawn in Boardman); see also
Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833 (8th Cir.
2006) (holding it was not unreasonable for a plan to
request objective and clinical evidence for a claimant
diagnosed with fibromyalgia beyond doctor statements
repeating the claimant’s subjective complaints of pain
and fatigue).
Because Williams’s functional limitations due to his
fatigue could be objectively measured, the Plan did not
act arbitrarily and capriciously in denying Williams’s
initial application or appeal on the basis that the record
lacked accurate documentation in this regard. The ad-
ministrator clearly explained this concern in both its
denial letters to Williams. Williams’s initial application
included an Attending Physician’s Statement where Dr.
Sorin remarked that Williams was “severely limited by
fatigue,” but as Dr. Burton and the administrator noted,
the record lacked any specific data reflecting Williams’s
functional impairment. The residual functional capacity
questionnaire submitted to the Plan on appeal could have
provided sufficient evidence that Williams’s functional
abilities were limited by his subjective symptoms of
fatigue, but this form was not accurately completed by Dr.
Sorin. Despite the fact that the questionnaire asked for
responses, Dr. Sorin did not explain his conclusion that
Williams was only capable of low stress jobs or measure
Williams’s ability to lift anything weighing ten pounds or
more. Even more troubling is that the sections Dr. Sorin
marked “unknown” and “untested” call into question the
accuracy of other assessments that he did make. For
example, if it was “unknown” how many minutes or hours
No. 06-3824 11
Williams could stand at one time before needing to sit
down, it is unclear how Dr. Sorin reached the conclu-
sion that Williams could only stand or walk less than two
hours total in an eight hour working day. Similarly, it is
uncertain how Dr. Sorin determined Williams was signifi-
cantly limited in doing repetitive reaching, handling, or
fingering, when he wrote “untested” next to the boxes
asking for the percentage of time in an eight hour work
day Williams could perform each of these activities.
Williams argues that regardless of the questionnaire, the
Plan’s decision was still arbitrary and capricious, since
Aetna guidelines require that a reviewer “[c]onsider
subjective complaints of the claimant as well as objective
evidence.” Considering such subjective complaints how-
ever, does not mean that they are to be dispositive of
a claimant’s entitlement to benefits. This distinguishes
this case from Diaz, in which the plan provided that it
would pay benefits for up to 24 months with respect to
disabilities “primarily based on self-reported symptoms.”
Diaz, 2007 WL 2389773, at *5. Furthermore, the corre-
sponding example provided in Aetna’s guidelines sup-
ports the distinction drawn in this case. The example
Aetna provides is that a reviewer should consider the
claimant’s subjective complaints when “[a] disability
claimant genuinely appears to be in pain, although there
are no objective medical findings.” This example echoes
the thrust of Hawkins—that the amount of pain or fatigue
an individual experiences is inherently subjective in
nature. The example given by Aetna however, does not
bar reviewers from requiring accurate documentation
from a treating physician that the claimant’s subjec-
tive symptoms of pain or fatigue limit his functional
abilities in the workplace. Therefore, the Plan’s denial of
benefits to Williams on the basis of Dr. Sorin’s failure to
provide accurate information detailing how Williams’s
12 No. 06-3824
fatigue limited his functional abilities was not arbitrary
and capricious.2
C. Full and Fair Review
Williams’s next claim is that the Plan administrator
denied him a “full and fair review” as required by ERISA.3
In order for a plan to have “substantially complied” with
the requirement that a claimant receive a full and fair
review, “the administrator must weigh the evidence for
2
Williams also argues that the Plan’s decision did not corre-
spond with the Social Security Administration’s (“SSA”) guide-
lines regarding CFS. Evaluating Cases Involving Chronic
Fatigue Syndrome, Social Security Administration Policy Inter-
pretation Ruling, SSR No. 99-2p, 1999 SSR LEXIS 3 (Apr. 30,
1999). This argument however, only relates to the Plan’s initial
denial challenging the CFS diagnosis. The district court already
found that the Plan erred in denying the claim on that ground,
and that decision therefore is not at issue on this appeal.
Furthermore, the fact that the SSA granted Williams disa-
bility benefits has little bearing on the Plan’s decision. Although
courts may treat SSA determinations as relevant, there is no
indication that the Plan included SSA disability as a condition
for disability under the Plan, and regardless, Williams did not
inform the Plan of the SSA’s decision until after the appeal had
already been decided. See Mote v. Aetna Life Ins. Co., No. 06-
4127, 2007 WL 2609431, at *6 (7th Cir. Sept. 12, 2007).
3
In his appellate brief, Williams raises three arguments related
to whether he received a “full and fair review.” Two of these
claims however, were not raised by Williams in his motion for
summary judgment and are therefore waived. Skarbek v.
Barnhart, 390 F.3d 500, 505 (7th Cir. 2004). Thus, this court
does not address Williams’s claims that Dr. Burton lacked the
requisite professional expertise with respect to CFS or that the
appeal involved a “medical judgment” requiring the Plan to
consult a health care professional per 29 C.F.R. § 2560.503-
1(h)(3)(iii) (2003).
No. 06-3824 13
and against [the denial or termination of benefits], and
within reasonable limits, the reasons for rejecting evid-
ence must be articulated if there is to be meaningful
appellate review.” Hackett, 315 F.3d at 775 (quoting
Halpin v. W.W. Grainger, 962 F.2d 685, 695 (7th Cir.
1992).
Williams claims that, because Dr. Burton’s opinion letter
is virtually identical to the conclusion in the denial letter
sent out by the administrator, it is clear that the ad-
ministrator did not “weigh the evidence,” but merely
adopted Williams’s report. Although it is preferable that
plan administrators’ conclusions not recite verbatim the
medical consultant’s opinion, doing so does not lead to a
per se conclusion that a claimant did not receive a full and
fair review. In this case, it is undisputed that Takashima
provided her own summary of Williams’s medical records,
which reflects that she did not rely solely upon the medical
consultant’s report in reaching her decision.
Furthermore, the situation here, where a plan adminis-
trator adopts a consulting physician’s reasoning, is dis-
tinct from Hackett, where the plan administrator adopted
a medical consultant’s conclusion without any accom-
panying justification for that decision. In Hackett, the
plan terminated a claimant’s benefits on the basis of a
consulting physician’s conclusion that ran contrary to
numerous prior opinions. The consulting physician pro-
vided no reason for his departure from previous doctors’
opinions and the plan similarly provided no explanation for
valuing the consulting physician’s opinion over those
of prior doctors. Hackett, 315 F.3d at 775. As the court
explained, the plan easily could have rectified this situa-
tion so as to have provided a full and fair review. The
court opined that, so long as the medical consultant
provided a non-arbitrary explanation for his conclusion
and the administrator then considered these factors, the
requirements for a full and fair review would be met. Id.14 No. 06-3824
That is what occurred here. Dr. Burton’s statement that
Williams had failed to provide evidence of his functional
limitations was a non-arbitrary explanation for his con-
clusion. The plan administrator then adopted Dr. Burton’s
reasoning after performing her own review of Williams’s
medical history. On the basis of these facts, Williams
received a full and fair review of his record.
D. Dr. Sorin’s and Dr. Burton’s Medical Reports
Williams’s final argument revolves around Dr. Sorin’s
and Dr. Burton’s respective medical reports. Williams
claims that Aetna violated its own internal procedures
in reviewing these findings and also placed improper
value on Dr. Burton’s report. These arguments however,
are unavailing.
Williams first claims that Aetna improperly refused to
credit Dr. Sorin’s findings. For the reasons discussed
above, it was not improper for Aetna to determine that
Dr. Sorin had failed to provide sufficient objective sup-
port with respect to Williams’s functional limitations.
Williams further argues however, that Aetna ran afoul of
its own claim procedures, because the reviewer did not
request an independent medical examination or a func-
tional capacity evaluation, which reviewers are permit-
ted to do when they are unsure of what the medical
information means. This internal procedure however,
relates to “Test Change Review,” which applies when a
claimant has already been awarded benefits. Therefore,
this procedure appears to be inapplicable to Williams’s
situation. Regardless, even if this provision did apply here,
Aetna did not run afoul of its requirements. There is no
indication that there was uncertainty with respect to the
medical information, rather there was simply a lack of
objective support regarding Williams’s functional abilities.
Furthermore, reviewers are not required to follow this
No. 06-3824 15
procedure. Instead, it is merely one option at their dis-
posal.
The other internal procedure Williams claims Aetna
violated is its requirement that a reviewer obtain addi-
tional medical information if the attending physician’s and
independent medical consultant’s reports disagree. The
only area where these two reports disagreed however, was
with respect to Williams’s CFS diagnosis, which was not
the sole basis for the initial denial and was conceded by
Aetna on appeal. With respect to Williams’s functional
impairment, there was no disagreement between the
reports. Rather, Dr. Burton’s report merely pointed out
that Dr. Sorin had failed to provide measurable data
with respect to Williams’s functional limitations.
Williams also claims that, because Dr. Burton is the
Plan’s medical consultant, his opinion is inherently
biased and therefore should be given less weight than
Dr. Sorin’s findings. The Supreme Court addressed this
issue in Black & Decker Disability Plan v. Nord, and while
the Court did not question lower courts’ concerns regarding
medical consultants’ incentives, the Court expressly held
that “plan administrators are not obliged to accord special
deference to the opinions of treating physicians.” Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 825, 832
(2003); see Davis v. Unum Life Ins. Co., 444 F.3d 569, 575
(7th Cir. 2006) (refusing to credit a theoretical argument
that in-house doctors have an inherent conflict of interest
in ERISA cases). Therefore, this argument fails.
Finally, Williams contends that Dr. Burton’s opinion
was not reliable, and therefore could not serve as a proper
basis for denying Williams’s claim. Dr. Burton’s report
however, was not the basis for denying the claim. Instead,
the decision was based upon Dr. Sorin’s failure to show
that he had accurately assessed how Williams’s fatigue
limited his functional abilities. Furthermore, the holding
16 No. 06-3824
of the case Williams cites in support of his position, that
an examining physician’s report may constitute substan-
tial evidence in a disability hearing, Richardson v. Perales,
402 U.S. 389, 402 (1971) (emphasis added), does not
require the negative inference Williams asks this court
to find. In addition, Richardson involved the receipt of
benefits under the Social Security Act, the requirements
of which do not always mirror those under ERISA. See
Black & Decker Disability Plan, 538 U.S. at 832-33(“[C]ritical differences between the Social Security disabil-
ity program and ERISA benefit plans caution against
importing a treating physician rule from the former area
into the latter.”). This claim therefore, is also unavailing.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
ruling granting summary judgment in the Plan’s favor
and denying summary judgment for Williams. It is there-
fore unnecessary for us to address Williams’s claims
regarding fees and benefits.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-1-07