Weitzenkamp v. Unum Life Ins. Co. of America , 661 F.3d 323 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3898 & 11-1006
S USIE W EITZENKAMP,
Plaintiff-Appellant,
Cross-Appellee,
v.
U NUM L IFE INSURANCE C OMPANY OF A MERICA,
Defendant-Appellee,
Cross-Appellant.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 1:09-cv-01017-WCG—William C. Griesbach, Judge.
A RGUED M AY 11, 2011—D ECIDED JULY 11, 2011
Before R OVNER and H AMILTON, Circuit Judges, and
L EFKOW, District Judge.Œ
L EFKOW, District Judge. After being diagnosed with
fibromyalgia, chronic pain, anxiety, and depression, Susie
Œ
The Honorable Joan Humphrey Lefkow of the Northern
District of Illinois, sitting by designation.
2 Nos. 10-3898 & 11-1006
Weitzenkamp was awarded long-term disability benefits
under an employee benefit plan (“the plan”) issued
and administered by Unum Life Insurance Company
(“Unum”). Benefits were discontinued a little more
than twenty-four months later, when Unum determined
that Weitzenkamp had received all to which she
was entitled under the plan’s self-reported symptoms
limitation. Because Weitzenkamp had retroactively re-
ceived social security benefits, Unum also sought to
recoup equivalent overpayments as provided by the
plan. On appeal, Weitzenkamp challenges the applica-
tion of the self-reported symptoms limitation to her
case and argues that Unum’s claim for overpayment
is barred because the Social Security Act prohibits at-
tachment or garnishment of social security payments.
Although Weitzenkamp raises numerous arguments as
to why Unum’s discontinuation of benefits warrants
reversal, we need only address one, for the failure to
include the self-reported symptoms limitation in the
summary plan description (“SPD”) prevents Unum
from relying on it to discontinue benefits. The Social
Security Act, however, does not bar Unum from re-
covering overpayments occasioned by Weitzenkamp’s
receipt of social security benefits. The district court’s
judgment is thus affirmed in part and reversed in part.
The cross-appeal is dismissed.
I.
Weitzenkamp worked at Time Warner Cable Inc. as
a sales representative. Weitzenkamp participated in the
plan, which is governed by the Employee Retirement
Nos. 10-3898 & 11-1006 3
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001
et seq., and administered by Unum. The plan gives Unum
discretion to determine eligibility and to interpret the
plan’s terms. A participant who is limited from
performing the material and substantial duties of her
regular position due to sickness or injury that results in
a twenty percent or more loss in indexed monthly
earnings is entitled to long-term benefits. After twenty-
four months of payments, the disability determination
is revisited, with the criterion changing from being
unable to perform one’s own occupation to being unable
to perform any occupation. As long as a participant
meets the “any occupation” standard, benefits con-
tinue until she is no longer disabled or has reached
the maximum period of payment. For someone like
Weitzenkamp, who was under sixty at the onset of her
disability, it would be age sixty-five. One significant and
relevant limitation exists, however, as benefits cease
after twenty-four months for those with “[d]isabilities,
due to sickness or injury, which are primarily based on
self-reported symptoms, and disabilities due to mental
illness, alcoholism or drug abuse.” Self-reported symptoms
are “the manifestations of your condition which you
tell your doctor that are not verifiable using tests, proce-
dures or clinical examinations standardly accepted in
the practice of medicine.” The plan provides a non-ex-
haustive list of self-reported symptoms: “headaches, pain,
fatigue, stiffness, soreness, ringing in ears, dizziness,
numbness and loss of energy.”
As required under ERISA, Unum provided Weitzen-
kamp and others covered by the plan with a SPD. The SPD
states that “[p]ayments for disabilities other than those
4 Nos. 10-3898 & 11-1006
attributable to mental illness or substance abuse may
continue until the earlier of the date you recover or the
date shown on the schedule.” 1 The twenty-four month
limitation for disabilities due to mental illness and sub-
stance abuse is reiterated two more times in the SPD.
No mention is made, however, of the self-reported symp-
toms limitation.
On December 13, 2005, after a viral illness, Weitzen-
kamp’s physician certified that she was unable to work.
She continued to suffer from ongoing pain and fatigue
and was eventually diagnosed with fibromyalgia, chronic
pain, anxiety, and depression. After exhausting her short-
term disability benefits, Weitzenkamp sought long-
term disability benefits. Unum approved Weitzenkamp’s
request on July 25, 2006, retroactive to June 12, 2006, under
a reservation of rights. The approval letter included
language from the plan on what was considered a dis-
ability but did not mention the self-reported symptoms
limitation. Unum removed its reservation of rights on
January 29, 2007, but also invoked the self-reported
symptoms and mental illness limitations, indicating
it would pay benefits until June 11, 2008 unless other
conditions arose to which the limitation did not apply.
Unum required Weitzenkamp to apply for social
security benefits. She was awarded social security disabil-
ity benefits in September 2007 based on a primary diag-
nosis of affective disorder and a secondary diagnosis
of muscle and ligament disorders due to fibromyalgia.
1
The schedule lists the maximum period of payment.
Nos. 10-3898 & 11-1006 5
The award was retroactive to December 13, 2005. As
provided in the plan, Unum reduced Weitzenkamp’s
monthly benefit accordingly. As Unum also had
reserved the right to recover any overpayments that
resulted from a participant’s retroactive receipt of social
security benefits, it requested that Weitzenkamp reim-
burse it for this amount. Some of this overpayment was
recovered, but a balance of $9,089 remains.
On August 22, 2008, after reviewing Weitzenkamp’s
medical records, Unum discontinued her benefits.
While acknowledging that Weitzenkamp did not “have
reliable, sustainable functional capacity at any level
of physical demand,” Unum concluded that her disability
was primarily based on self-reported symptoms and
mental illness and that she did not suffer from a severe
enough physical condition to get around the twenty-
four month limitation.
Weitzenkamp appealed through the plan’s appeal
process. After further review, including having
another rheumatologist examine Weitzenkamp’s medical
records, Unum affirmed its decision. Weitzenkamp then
filed this law suit. Unum counterclaimed, seeking recoup-
ment of the overpayment created by Weitzenkamp’s
retroactive receipt of social security benefits. Both
parties moved for summary judgment. The district
court found that to the extent Unum’s discontinuation
of benefits was based on a finding that she was not dis-
abled, that decision was arbitrary and capricious. But
the district court upheld Unum’s application of the self-
reported symptoms limitation. It also concluded that
6 Nos. 10-3898 & 11-1006
Unum is entitled to $9,089 as a result of its overpayment
of benefits. Weitzenkamp now appeals. Unum filed a
conditional cross-appeal to preserve its right to appeal
the district court’s determination that Unum’s finding
of no disability was arbitrary and capricious if we
reverse the judgment.
II.
We review the district court’s grant of summary judg-
ment de novo. Jenkins v. Price Waterhouse Long Term Disabil-
ity Plan, 564 F.3d 856, 860 (7th Cir. 2009). Where, as
here, the plan grants the administrator the discretion to
determine eligibility and construe the plan terms, we
review the administrator’s decision under an arbitrary
and capricious standard. Id.
A.
We can resolve the benefits termination issue on a
narrow ground, that Unum’s failure to include the self-
reported symptoms limitation in the SPD estops it from
relying on the limitation as a basis for its decision.
As an initial matter, the district court’s finding that
Weitzenkamp waived the SPD argument was error.
Arguments raised in a reply brief are typically deemed
waived, see Dexia Credit Local v. Rogan, 629 F.3d 612, 625
(7th Cir. 2010), the reason being “that a reply brief con-
taining new theories deprives the respondent of an op-
portunity to brief those new issues.” Wright v. United
Nos. 10-3898 & 11-1006 7
States, 139 F.3d 551, 552 (7th Cir. 1998). But, given the
manner in which the SPD argument was raised below,
a finding of waiver is not warranted. Weitzenkamp
moved for summary judgment on the issue of disability.
Only in its combined response and cross-motion did
Unum invoke the self-reported symptoms limitation as
an additional basis for finding in its favor. The failure
to include the self-reported symptoms limitation in the
SPD is a defense against its application and thus was
properly raised in response to Unum’s cross-motion in
Weitzenkamp’s combined response and reply brief.
Unum had the opportunity and did reply to the argu-
ment in the district court, and the issue is fully briefed
before us. We thus see no obstacle to addressing the
SPD issue on its merits.
An SPD is intended to be a “capsule guide [to the plan]
in simple language.” Herrmann v. Cencom Cable Assocs.,
Inc., 978 F.2d 978, 984 (7th Cir. 1992). While an SPD need
not “anticipate every possible idiosyncratic contingency
that might affect a particular participant’s or beneficiary’s
status,” Lorenzen v. Emps. Ret. Plan of the Sperry &
Hutchison Co., 896 F.2d 228, 236 (7th Cir. 1990), it must “be
sufficiently accurate and comprehensive to reasonably
apprise such participants and beneficiaries of their
rights and obligations under the plan.” 29 U.S.C. § 1022(a).
In addition to providing identifying information about
the administrator of the plan, an SPD must include “the
plan’s requirements respecting eligibility for participa-
tion and benefits” and “circumstances which may result
in disqualification, ineligibility, or denial or loss of bene-
fits.” Id. § 1022(b). “If an SPD does not satisfy ERISA’s
8 Nos. 10-3898 & 11-1006
disclosure requirements, a court may estop a plan ad-
ministrator from denying coverage for terms not
included in the SPD but found in the underlying plan.”
Mers v. Marriott Int’l Group Accidental Death & Dismember-
ment Plan, 144 F.3d 1014, 1022 (7th Cir. 1998); see also
Bowerman v. Wal-Mart Stores, Inc., 226 F.3d 574, 587 (7th
Cir. 2000). Although the parties argue over whether the
SPD and plan terms conflict, we need not reach this
issue if the SPD does not comply with § 1022. Mers, 144
F.3d at 1022 n.4.
Here, the SPD clearly sets out that long-term benefits
will be discontinued after twenty-four months if a partici-
pant’s disability is due to mental illness or substance
abuse. It does not, however, mention that this same time
limitation applies if a participant’s disability is based
primarily on self-reported symptoms. This omission
violates § 1022. Unum proffers no reason, and none is
apparent, for its highlighting the loss of benefits that
results from the application of the mental illness and
substance abuse limitations in three different places in
the SPD while omitting the self-reported symptoms
limitation, which is part of the same provision in the
plan. The self-reported symptoms limitation is not an
idiosyncratic contingency concerning only a few people
but rather a broad exception to the continuation of
benefits that should reasonably be included in the SPD.
See Bowerman, 226 F.3d at 590-91 (“In this case, the infor-
mation the Plan should have provided to Ms. Bowerman
would not have been information unique to her situa-
tion; rather, the information she needed would have
been information relevant to all Plan participants who
Nos. 10-3898 & 11-1006 9
were rehired by Wal-Mart within a few weeks or months
after leaving the company. The Plan’s explanation of its
policy in the 1995 SPD simply failed to fully and fairly
communicate how the policy would work to the benefit
of any of the Plan’s participants who found themselves
in such circumstances.”); cf. Herrmann, 978 F.2d at 983-
84 (finding no § 1022 violation where the limitation that
was omitted from the SPD would affect only a few
people); Tegtmeier v. Midwest Operating Eng’rs Pension
Trust Fund, 390 F.3d 1040, 1048 (7th Cir. 2004) (same).
Because the SPD failed to “reasonably apprise”
Weitzenkamp of the self-reported symptoms limitation
and this limitation is relevant to a wide spectrum of
plan participants, the SPD does not satisfy § 1022. Unum
is therefore estopped from relying on the self-reported
symptoms limitation in denying Weitzenkamp benefits.
B.
The district court found that Unum is entitled to
recover $9,089 in overpayments it made to Weitzenkamp.
Weitzenkamp does not dispute that Unum may recover
an overpayment of benefits pursuant to the reimburse-
ment provision in the plan. See Gutta v. Standard Select
Trust Ins. Plan, 530 F.3d 614, 620-21 (7th Cir. 2008) (citing
Sereboff v. Mid Atl. Med. Servs., 547 U.S. 356, 126 S. Ct. 1869,
164 L. Ed. 2d 612 (2006)). While she did not raise any
opposition to Unum’s counterclaim in the district court,
Weitzenkamp now argues that § 207(a) of the Social
Security Act, 42 U.S.C. § 407(a), precludes Unum from
recovering any overpayment that resulted from her
10 Nos. 10-3898 & 11-1006
receipt of social security benefits. Generally, “we will not
consider an argument not passed on below, but we
may appropriately do so where, as here, the parties
have briefed it and the resolution is clear.” Faulkenberg v.
CB Tax Franchise Sys., LP, 637 F.3d 801, 807 (7th Cir. 2011).
Section 207(a) provides that social security benefits
shall not “be subject to execution, levy, attachment,
garnishment, or other legal process.” Weitzenkamp
argues that Unum’s counterclaim effectively seeks an
equitable lien on her social security benefits. True, Unum
cannot impose a lien directly on Weitzenkamp’s social
security benefits. But Unum recognizes this and
instead seeks an equitable lien on specific funds it paid
Weitzenkamp under the plan to which it has a claim
for reimbursement. This does not contravene § 207(a). See
Hall v. Liberty Life Assurance Co. of Boston, 595 F.3d 270, 274-
75 (6th Cir. 2010). To paraphrase Cusson v. Liberty
Life Assurance Co. of Boston, 592 F.3d 215, 232 (1st Cir.
2010), although the amount in question happens to be
the same as the amount of Weitzenkamp’s retroactive
social security payment, the funds Unum is targeting
do not come from social security. Rather, they come
from overpayments Unum paid to Weitzenkamp. Thus,
§ 207(a) does not bar recovery.
III.
Unum filed a conditional cross-appeal to preserve
its right to challenge the district court’s non-dispositive
finding that Unum’s determination of no disability was
arbitrary and capricious. This challenge by way of cross-
Nos. 10-3898 & 11-1006 11
appeal was procedurally improper. A cross-appeal is
appropriate only if a prevailing party seeks a judgment
different from that rendered by the district court. See
United States v. Tarkowski, 248 F.3d 596, 602-03 (7th Cir.
2001). With its cross-appeal, Unum seeks not to alter
the judgment, i.e., the bottom line, but to advocate an
alternate ground for affirming the district court’s judg-
ment that the denial of benefits was proper. While ad-
vancing this alternate ground asks us to reject the
district court’s reasoning on the no-disability issue, such
an attack can and should have been raised by Unum in
this appeal. See Wellpoint, Inc. v. C.I.R., 599 F.3d 641, 650
(7th Cir. 2010) (“[T]he appellee may, without taking
a cross-appeal, urge in support of a decree any matter
appearing in the record, although his argument may
involve an attack upon the reasoning of the lower court or an
insistence upon matter overlooked or ignored by it.” (quoting
United States v. Am. Ry. Express Co., 265 U.S. 425, 435, 44
S. Ct. 560, 68 L. Ed. 1087 (1924)). We indicated as much
to Unum in a show-cause order issued in No. 11-1006
prior to Unum’s having filed its brief in this case. Unum
maintained, however, that its cross-appeal was proper,
relying on Council 31, American Federation of State, County,
& Municipal Employees, AFL-CIO v. Ward, 978 F.2d 373,
380 (7th Cir. 1992), a case in which we decided a condi-
tional cross-appeal of the district court’s class certifica-
tion order after reversing its grant of summary judg-
ment in the defendant’s favor. Subsequent cases,
however, have reiterated the rule that cross-appeals are
not appropriate in routine cases like ours that raise only
alternate grounds for affirmance of the judgment and not
12 Nos. 10-3898 & 11-1006
an independent issue like the propriety of class certifica-
tion. See, e.g., Am. Bottom Conservancy v. U.S. Army Corps of
Eng’rs, No. 10-3488, slip op. at 16 (7th Cir. June 14, 2011);
Tarkowski, 248 F.3d at 602-03. As Unum did not raise
its alternate arguments in this appeal, it forfeited the
ability to challenge the district court’s finding on the
disability issue.
What remains, then, is to determine the appropriate
remedy, either reinstatement of benefits or remand to
Unum for further proceedings consistent with this
opinion. “In fashioning relief for a plaintiff who has sued
to enforce her rights under ERISA, we have focused
‘on what is required in each case to fully remedy the
defective procedures given the status quo prior to the
denial or termination’ of benefits.” Schneider v. Sentry
Grp. Long Term Disability Plan, 422 F.3d 621, 629 (7th
Cir. 2005) (quoting Hackett v. Xerox Corp. Long-Term Dis-
ability Income Plan, 315 F.3d 771, 776 (7th Cir. 2003)).
Here, Unum had previously determined that Weitzen-
kamp was entitled to benefits under the “own occupa-
tion” standard. Her benefits were terminated approxi-
mately two months after the “any occupation” standard
took effect. In its denial letter, Unum agreed that
Weitzenkamp did not “have reliable, sustainable
functional capacity at any level of physical demand”
while at the same time noting that the Social Security
Administration’s evaluation of her functional capacity
indicated that she was not precluded from per-
forming her own occupation. Weitzenkamp’s treating
rheumatologist, however, concluded that “[d]espite
interventions by neurology, psychiatry, psychology,
Nos. 10-3898 & 11-1006 13
neuropsychology, orthopedics, physiatry, integrative
medicine, [and a] pain program with multiple interven-
tions from these services, [Weitzenkamp] remains unable
to work.” The district court found that Unum’s argu-
ments against this conclusion failed even under
arbitrary and capricious review. After a review of the
record, we agree that the record evidence points to a
finding of disability under the “any occupation” standard.
See Holmstrom v. Met. Life Ins. Co., 615 F.3d 758, 778 (7th
Cir. 2010) (“[W]e tend to award benefits when the
record provides us with a firm grasp of the merits of the
participant’s claim.”). Reinstatement of benefits, retro-
active to August 22, 2008, is thus appropriate. Unum is
free to revisit Weitzenkamp’s present eligibility for bene-
fits, proceeding in a manner consistent with this opin-
ion and that of the district court on the disability issue.
IV.
As the self-reported symptoms limitation was not
included in the SPD in violation of § 1022, Unum may not
rely on this limitation to discontinue Weitzenkamp’s long-
term benefits after twenty-four months. We reverse the
district court’s judgment on this issue and remand with
instructions to order Unum to reinstate Weitzenkamp’s
benefits retroactive to August 22, 2008. We affirm the
judgment on Unum’s counterclaim. Unum’s cross-
appeal, No. 11-1006, is dismissed.
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