Mote, Brenda v. Aetna Life Insur Co

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4127
BRENDA MOTE,
Plaintiff-Appellant,
v.
AETNA LIFE INSURANCE COMPANY and
ARTHUR ANDERSEN LLP GROUP LONG TERM
DISABILITY INSURANCE PLAN,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 6212—Milton I. Shadur, Judge.
____________
ARGUED JUNE 5, 2007—DECIDED SEPTEMBER 12, 2007
____________
Before EASTERBOOK, Chief Judge, and MANION and WOOD,
Circuit Judges.
MANION, Circuit Judge. Brenda Mote sued Aetna Life
Insurance Co. (“Aetna”) and the Arthur Andersen Long-
Term Disability Plan (the “Plan”) under the Employment
Retirement Income Security Act (“ERISA”), 29 U.S.C.
§ 1001 et seq., alleging that Aetna and the Plan arbitrarily
and capriciously terminated her disability benefit pay-
ments and that they should be estopped from terminating
her disability benefits because the Social Security Adminis-
2 No. 06-4127
tration found her “disabled” under its regulations. The
district court dismissed Mote’s claims against Aetna upon
finding that Aetna was not a proper party to the action,
denied Mote’s motion for summary judgment against the
Plan, and granted summary judgment to the Plan on all
of Mote’s claims against it. Mote appeals. We affirm.
I.
Brenda Mote was a human resource generalist with
Arthur Andersen LLP until she ceased working on April
10, 1998, due to back pain and physical complications,
including fibromyalgia,1 stemming from an August 1997
accident. On the day that Mote stopped working for Arthur
Andersen, she applied for long-term disability benefits
under the Plan, which was administered by Aetna. The
Plan states that for purposes of ERISA, Aetna shall act as
the Plan’s fiduciary and be vested with “discretionary
authority” both to “determine whether and to what
extent employees and beneficiaries are entitled to benefits;
and construe any disputed or doubtful terms of this
policy.” Specifically, Mote applied for long-term disability
benefits under the Plan’s “own occupation” definition of
disability. That provision states that an employee is “totally
disabled” if the insured employee is unable “[d]uring the
first 5 years of disability to perform the material duties of
the employee’s own occupation.” The Plan approved
Mote’s application, and on July 10, 1998, she began receiv-
ing long-term disability benefits. Following the Plan’s
1
Fibromyalgia is “pain and stiffness in the muscles and joints
that is either diffuse or has multiple trigger points.” Dorland’s
Illustrated Medical Dictionary 673 (29th ed. 2000).
No. 06-4127 3
approval of her application, Mote continued to receive
medical care for her back pain and fibromyalgia, and the
Plan periodically reassessed her condition to ensure that
she remained eligible for long-term disability benefits.
After Mote had been receiving long-term disability
benefits for five years, on December 8, 2003, the Plan
notified her that it recently had reevaluated her claim
under its stricter, five-year definition of “totally disabled”
and determined that she no longer qualified for long-term
disability benefits. Under the Plan, while an employee
only needs to demonstrate that he is unable to “perform
the material duties of [his] own occupation” during the
first five years of his disability, after five years the em-
ployee must demonstrate that he is unable to “work at any
occupation for which [he] is, or may reasonably become,
fitted by education, training or experience.” In its letter to
Mote, the Plan stated that it reached its decision after
reviewing the office notes of Mote’s treating physicians,
various lumbar MRIs, CT scans, and surgical procedures,
as well as statements by Mote’s physicians regarding her
physical limitations and restrictions. The letter also in-
formed Mote that the Plan had hired an independent
investigator who, in January 2003, videotaped her engag-
ing in activities that she stated on her April 30, 2003,
Claim Questionnaire that she was unable to perform. The
Plan’s letter further stated that it based its decision on the
results of Mote’s November 11, 2002, functional capacity
examination and her September 15, 2003, independent
medical examination, both of which found that Mote was
capable of performing sedentary work. The letter also
noted that the Plan’s consulting physicians reviewed
Mote’s medical information on two recent occasions and
reached the same conclusion.
4 No. 06-4127
Mote requested that the Plan review its decision. In
support of her request for review, Mote submitted addi-
tional medical evidence from her treating physicians,
including her primary care physician, Terry West, M.D.,
and her pain management specialist, James Gruft, M.D. Dr.
West opined that Mote was suffering from a “class 5”
physical impairment, which rendered her “incapable of
minimal (sedentary) activity.” He further noted that, in his
opinion, “maximum medical improvement has [been]
achieved. I don’t believe she can ever work again.” In a
letter dated August 10, 2004, Dr. West stated that Mote
suffers from fibromyalgia and chronic back pain, which
remain unchanged, and he concluded that Mote “is still
unable to work at this time, due to limitations of motion
and need for sedating pain medication.” Dr. Gruft also
opined that Mote was incapable of sedentary activity,
and that he believed that Mote’s condition had “retro-
gressed.”
Upon its receipt of Mote’s additional information, the
Plan informed Mote that it referred her file for an inde-
pendent medical review. The Plan retained William Hall,
M.D., to conduct its review. In his September 2, 2004,
report, Dr. Hall stated that he reviewed Mote’s medical
history and opined:
I must conclude that the weight of the medical credibil-
ity be given to the opinions of [Mote’s] treating physi-
cians and that, absent medical or personal informa-
tion regarding [Mote] to the contrary, her subjective
musculoskeletal symptoms are of such severity to
be totally medically limiting.
However, during his initial review of Mote’s medical
records, Dr. Hall was unaware of the videotaped evidence
of Mote’s daily activities that the Plan obtained from its
No. 06-4127 5
independent investigator. The independent investigator
recorded the videotapes between January 29, 2003, and
February 4, 2003. Dr. Hall subsequently viewed selected
portions of the videotapes, which showed Mote running
errands, driving an elderly relative to doctors’ appoint-
ments, and loading groceries into her car. Upon reviewing
the videotape evidence of Mote’s functional abilities,
Dr. Hall changed his opinion regarding Mote’s level of
disability, stating:
After viewing surveillance videos of [Mote’s] activities
for the dates and durations noted, I do not agree with
assessments of severity or with medically limiting
conclusions by [Mote’s] treating physicians. I am not
able to identify an objective or absolute impediment
to [Mote] pursuing sustained and otherwise unre-
stricted activities at a light level of exertion.
In a letter dated September 28, 2004, the Plan notified
Mote that, after a “full and fair review of the decision to
terminate [her] claim,” it was upholding its decision to
terminate her long-term disability benefits.2 The Plan’s
2
The Plan’s letter of December 8, 2003, indicates that it based its
decision to terminate Mote’s benefits on the Plan’s stricter, five-
year definition of “totally disabled.” Specifically, that letter
states: “Our review of the information in our file indicates
you have the functional capacity to perform the material
duties of any occupation and you no longer meet the plan
requirements for total disability.” The Plan’s letter of September
28, 2004, indicates that the Plan is “upholding [its] termination
on December 8, 2003,” and it cites both the initial and five-year
definitions of “totally disabled.” However, the Plan’s second
letter then states that Mote’s long-term benefits “ceased on
(continued...)
6 No. 06-4127
letter cited a long list of materials that it reviewed in
reaching its decision, and stated that “the weight of the
medical information does not support a condition of total
disability.”3 Mote then filed suit against both the Plan and
2
(...continued)
December 8, 2003, after it was assessed you are capable of
performing your own sedentary occupation.” The Plan argues
that the reference to Mote’s own occupation in the second letter
was a scrivener’s error, and that Mote was apprised adequately
of and able to respond to the stricter five-year definition set
forth in the first termination letter. We agree that the Plan’s
letter of December 8, 2003, adequately notified Mote that the
Plan’s termination of her benefits—which occurred exactly
five years after it originally approved her claim—was based on
the five-year definition, and provided Mote with an opportunity
to submit additional evidence challenging the Plan’s decision
under that definition of “totally disabled.” The fact that the
Plan erroneously cited the wrong definition of “total disability”
in its final denial letter was inconsequential because that letter
merely informed Mote that the Plan had affirmed its decision to
deny her claim following its review of its earlier decision, which
the parties do not dispute was based on the five-year definition.
Accordingly, the Plan’s scrivener’s error in the second letter
does not warrant remand to the plan administrator. See
Schleibaum v. Kmart Corp., 153 F.3d 496, 503 (7th Cir. 1998).
3
The dissent asserts that the Plan’s letter to Mote of September
28, 2004, adds entirely new language to the Plan. The “entire
new language” that it quotes is a sentence lifted from a three-
page letter explaining, after an “independent, full and fair
review,” why the Plan is upholding its decision to terminate
Mote’s claim for long-term disability benefits. The language that
the dissent quotes is not an addition of entirely new language
to the Plan, and when taken out of context, it misconstrues
(continued...)
No. 06-4127 7
Aetna, claiming that they improperly terminated her long-
term disability benefits. The district court dismissed Aetna
as an improper party, denied Mote’s cross-motion for
summary judgment, and granted the Plan’s cross-motion
for summary judgment. Mote appeals.
II.
We review a district court’s decision on summary
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).
3
(...continued)
the text of the Plan’s letter. Also, the dissent does not mention
that the sentence that it quotes is surrounded by a full analysis
detailing the Plan’s rationale for its prior decision and the
medical evidence Mote presented for reconsideration. Following
the quoted statement, the Plan’s letter goes on to express its
rationale for denying the request for reconsideration. When read
in context, it is clear that the quoted statement does not indicate
that the Plan began its analysis with the premise that reported
pain can never be enough.
8 No. 06-4127
On appeal, Mote first argues that the Plan’s decision
to stop paying her benefits after finding that she did not
meet the stricter five-year definition of “total disability”
was arbitrary and capricious. In Firestone Tire & Rubber v.
Bruch, 489 U.S. 101 (1989), the Supreme Court 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 discretionary
authority to determine eligibility for benefits or to con-
strue the terms of the plan.’ ” Diaz v. Prudential Ins. Co. of
Am., 424 F.3d 635, 636-37 (7th Cir. 2005) (quoting Firestone,
489 U.S. at 115). “When, as here, the terms of an em-
ployee benefit plan afford the plan administrator broad
discretion to interpret the plan and determine benefit
eligibility, judicial review of the administrator’s decision to
deny benefits is limited to the arbitrary-and-capricious
standard.” Davis, 444 F.3d at 575 (citing Sisto v. Ameritech
Sickness & Accident Disability Benefit Plan, 429 F.3d 698, 700
(7th Cir. 2005)).
Under the arbitrary and capricious standard, “we will
overturn a plan administrator’s decision ‘only . . . if it is
downright unreasonable.’ ” Herman v. Cent. States, Se. & Sw.
Areas Pension Fund, 423 F.3d 684, 692 (7th Cir. 2005) (quot-
ing Carr v. Gates Health Care Plan, 195 F.3d 292, 294 (7th Cir.
1999) (internal quotation omitted)). “That is, this court
will not substitute the conclusion it would have reached
for the decision of the administrator, as long as the admin-
istrator makes an informed judgment and articulates an
explanation for it that is satisfactory in light of the rele-
vant facts.” Id. (internal quotations and citations omitted).
We previously have noted that “ ‘[r]eview under the
deferential arbitrary and capricious standard is not a
rubber stamp,’ so that, ‘[e]ven under the deferential re-
No. 06-4127 9
view we will not uphold a termination where there is
an absence of reasoning in the record to support it.’ ” Id. at
693 (quoting Hackett v. Xerox Corp. Long-Term Disab. Income,
315 F.3d 771, 774-75 (7th Cir. 2003)). “A satisfactory
explanation is one that gives ‘the specific reasons for the
denial,’ but it need not explain ‘the reasoning behind the
reasons, . . . [that is,] the interpretive process that gen-
erated the reason for the denial.’ ” Id. (quoting Gallo v.
Amoco Corp., 102 F.3d 918, 922 (7th Cir. 1996) (internal
quotation omitted)). Further, we have found that “[t]he
administrator of a pension fund does not act arbitrarily
and capriciously when he changes a previous decision
because the facts known to the plan have changed; ‘[p]ut
simply, a reversal based on new information is not a non-
uniform interpretation.’ ” Id. (quoting Militello v. Cent.
States, Se. & Sw. Areas Pension Fund, 360 F.3d 681, 690 (7th
Cir. 2004)).
In this case, Mote first argues that the Plan’s decision
was arbitrary and capricious because there was no evi-
dence in the record that her condition improved. Mote
contends that a finding of improvement is necessary
because the Plan actually terminated her benefits under the
“own occupation” definition of “totally disabled,” rather
than the five-year, “any occupation” definition. Thus,
she reasons that if the Plan found that she could not
perform her position as a human resource generalist in
1998, and there is no evidence that her chronic back pain
or fibromyalgia had improved, then the Plan had no basis
for terminating her benefits. As discussed above, the
totality of the evidence indicates that the Plan terminated
Mote’s benefits based on the five-year, “any occupation”
definition. See supra, at n.1. Because that definition differs
significantly from the more lenient “own occupation”
10 No. 06-4127
definition, we find that even if Mote’s condition did not
improve over the five-year period she was receiving
disability benefits, that is not determinative of whether
she was “totally disabled” under the five-year definition.
Accordingly, we evaluate whether the Plan arbitrarily
and capriciously evaluated the evidence before it in
making its determination that Mote was capable of per-
forming some occupation, rather than merely her previous
occupation.
Mote next asserts that the Plan did not properly weigh
her treating physicians’ opinions in reaching its termina-
tion decision. Mote’s argument is unavailing, however,
because “ERISA does not require plan administrators to
accord special deference to the opinions of treating physi-
cians.” Kobs v. United Wis. Ins. Co., 400 F.3d 1036, 1039 (7th
Cir. 2005) (citations omitted). Further, courts may not
“impose on plan administrators a discrete burden of
explanation when they credit reliable evidence that con-
flicts with a treating physician’s evaluation.” Davis, 444
F.3d at 578 (quoting Black & Decker Disability Plan v. Nord,
538 U.S. 822, 834 (2003)). We also have recognized that
“[m]ost of the time, physicians accept at face value what
patients tell them about their symptoms; but insurers . . .
must consider the possibility that applicants are exag-
gerating in an effort to win benefits (or are sincere hypo-
chondriacs not at serious medical risk).” Leipzig v. AIG Life
Ins. Co., 362 F.3d 406, 409 (7th Cir. 2004). Accordingly, the
Plan did not act improperly when it looked to, and cred-
ited, evidence that conflicted with Mote’s treating physi-
cians’ opinions as part of its deliberative process in evalu-
ating her claim.
Mote further argues that the Plan’s reviewing doctors’
opinions regarding her condition were unreliable and
No. 06-4127 11
rendered the Plan’s decision arbitrary and capricious.
Specifically, Mote takes issue with the fact that none of
the Plan’s physicians consulted a rheumatologist with
specialized expertise in fibromyalgia, nor did the Plan
contact her treating physicians to discuss her fibromyalgia.
As a threshold matter, an ERISA plan is not required to
hire specialists for every claimed malady in cases in
which the plan hired an independent expert to conduct a
physical examination of the claimant. In this case, the
Plan hired an independent expert, orthopedic surgeon
Richard Tuttle, M.D., to examine Mote. The record indi-
cates Dr. Tuttle conducted an “18 tender points” exam-
ination of Mote to assess her fibromyalgia, which was
the same test that Mote’s own physician, Dr. Gruft, con-
ducted. While Mote seeks to impose a requirement on the
Plan to consult with her treating physicians, the record
reveals that Dr. Gruft is a pain management specialist
and not a rheumatologist, and that Lee Lichtenberg, M.D.,
who is a rheumatologist, only examined Mote once.
Moreover, nothing in the record indicates that Mote’s
primary care physician, Dr. West, has any particular
expertise in fibromyalgia. In addition to hiring Dr. Tuttle to
examine Mote, the Plan also relied upon the opinions of
William Hall, whose specialty is unknown, and Paul
Radford, an occupational medicine specialist. While neither
of these consultants is a rheumatologist, the fact remains
that Mote sought long-term disability benefits on grounds
other than fibromyalgia, including chronic back pain,
migraine headaches, and irritable bowel syndrome, all of
which Drs. Tuttle, Hall and Radford are just as qualified
to opine about as Mote’s treating physicians. Accord-
ingly, we do not find that the Plan’s reliance on the opin-
ions of Drs. Tuttle, Hall and Radford, in conjunction with
the treating records of Mote’s own physicians, as well as
12 No. 06-4127
other outside evidence gathered during its deliberative
process, rendered its decision either arbitrary or
capricious.4
Next, Mote argues that Dr. Hall’s and Dr. Radford’s
opinions are suspect simply because the Plan hired them.
Mote’s assertion that the Plan’s employees or its consul-
tants had an incentive to deny her claim is without support
in the record. As we recognized in Leipzig v. AIG Life
Insurance Co., “most insurers are well diversified, so that
the decision in any one case has no perceptible effect on the
bottom line,” and thus “[t]here is correspondingly slight
reason to suspect that they will bend the rules,” absent
suspect circumstances such as “an insurer or plan ad-
ministrator pay[ing] its staff more for denying claims than
for granting them.” 362 F.3d at 409 (citing Perlman v. Swiss
Bank Corp., 195 F.3d 975, 980-81 (7th Cir. 1999)). As we have
4
On appeal, Mote also raises for the first time the following
arguments: (1) that Dr. Radford was not qualified to render an
opinion because he is an occupational medicine specialist;
(2) that Dr. Tuttle did not have the entire record to review be-
fore his independent medial examination; and (3) that Drs.
Tuttle, Radford, and Hall were opining outside their respective
scopes of expertise when they determined that Mote could work
at a sedentary occupation. Because Mote failed to raise those
arguments in the district court, she has waived her opportunity
to raise them at this stage. Taubenfeld v. AON Corp., 415 F.3d 597,
599 (7th Cir. 2005) (citing Heller v. Equitable Life Assurance Soc’y,
833 F.2d 1253, 1261-62 (7th Cir. 1987) (“On numerous occasions
we have held that if a party fails to press an argument before the
district court, he waives the right to present that argument on
appeal . . . . As we have made clear, it is axiomatic that argu-
ments not raised below are waived on appeal.” (citations and
quotation marks omitted))).
No. 06-4127 13
stated previously, ERISA “plan administrators have a
duty to all beneficiaries and participants to investigate
claims and make sure to avoid paying benefits to claimants
who are not entitled to receive them.” Davis, 444 F.3d
575 (citations omitted). Accordingly, the Plan would have
been remiss if it did not investigate Mote’s long-term
disability claim, and its use of independent experts and
medical consultants not only was justified, but con-
sistent with its duty to investigate.
Mote also asserts that the Plan’s reliance on the results of
her November 11, 2002, functional capacity examination
(“FCE”) was unreasonable. In his report, the FCE evaluator
concluded that Mote “is currently capable of working at
the sedentary physical demand level within the material
handling and positional tolerances set forth in the report,
of an eight hour day.” Despite that conclusion, Mote
asserts that the FCE evaluator’s opinion was not sup-
ported by the evaluation findings regarding her severe
pain, and that the Plan “cherry-picked” selected portions
of the FCE report to justify its termination of her long-term
disability benefits. Her argument fails, however, be-
cause the Plan never stated that the FCE was the decid-
ing factor in its decision. Rather, the Plan advised Mote
that it considered that FCE in tandem with Dr. Tuttle’s
September 15, 2003, independent medial examination. The
Plan’s December 8, 2003, letter also advised Mote that both
examinations revealed that she possessed greater physical
capability than that stated in her subjective medical
history, and that both examinations supported a conclu-
sion that she could work at a sedentary position for a eight-
hour work day. Accordingly, we find that the Plan’s
consideration of Mote’s November 11, 2002, FCE as one
component of its deliberative process did not make its
14 No. 06-4127
decision to terminate Mote’s long-term disability benefits
either arbitrary or capricious.
Mote then contends that Dr. Hall’s opinion is suspect
because he changed his conclusion after viewing the
videotape snippets of her daily activities and that the
Plan’s consideration of the videotapes during its delibera-
tive process was improper. These argument also are
without merit. In Shyman v. Unum Life Insurance Co., 427
F.3d 452 (7th Cir. 2005), we considered an ERISA plan’s
denial of benefits decision, which partially was based on
evidence gathered by a private detective that contra-
dicted claimant’s disability claims. Id. at 456. We did not
object to the plan’s surveillance of the claimant, and we
held that the plan’s denial decision was neither arbitrary
nor capricious. Id.; see also Dougherty v. Indiana Bell Tele-
phone Co., 440 F.3d 910, 917 (7th Cir. 2006) (upholding
ERISA plan’s decision to terminate disability benefits
after surveillance videotape showed the claimant engag-
ing in normal, everyday activities, such as driving his car
and hauling shopping bags). Mote attempts to distinguish
these cases by arguing that the videotapes in this case do
not contain evidence contradictory to her treating physi-
cians’ diagnoses, and thus the Plan could not reason-
ably have relied upon them in its deliberative process.
The evidence in the record, however, rebuts Mote’s argu-
ment. For example, Dr. Gruft opined that Mote “cannot
operate a motor vehicle,” but the videotape shows Mote
doing just that. The videotapes also contradict Dr. Gruft’s
claim on his December 11, 2003, Functional Capacity
Worksheet that Mote could “never climb, crawl, kneel,
move repeatedly or stoop,” but the surveillance videotape
shows her kneeling, moving repeatedly, and stooping. In
short, the videotapes show Mote engaging in many of the
No. 06-4127 15
activities that she claimed to be unable to accomplish in her
application for long-term disability benefits and, conse-
quently, the Plan properly considered them. Further, Dr.
Hall was justified in altering his opinion regarding
Mote’s ability to work after viewing the videotapes,
because Mote’s activities on the videotapes were exactly
the type of additional, contrary evidence upon which he
conditioned his original opinion when he stated that,
“absent medical or personal information regarding
[Mote] to the contrary, her subjective musculoskeletal
symptoms are of such severity as to be totally limiting.”
Finally, the record reflects that the Plan relied upon the
videotapes merely as one piece of the puzzle in its delib-
erative process and, while they may have altered the
outcome, they were not the sole basis for the Plan’s denial
of Mote’s claim. Accordingly, we find that the Plan’s use
of the videotape evidence of Mote’s physical capacity did
not render its decision either arbitrary or capricious.5
5
The dissent takes issue with the Plan’s use of portions of the
surveillance videotapes, and attempts to draw conclusions
regarding Mote’s activities depicted on the videotapes. As the
parties indicated during oral argument, neither the snippets of
the videotapes viewed by Dr. Hall, nor the raw footage, are in
the record. We are thus unable to review either set of videotapes
to determine whether the parties’ representations regarding
the substance of those videotapes are accurate. What is in the
record, however, are Dr. Hall’s statements regarding their
content after he reviewed them, as well as the records from the
investigators who conducted the surveillance. Based on those
memorialized accounts in the record, there is ample evidence
that the activities in which Mote engaged conflicted with her
representations regarding her functional abilities. Even if this
(continued...)
16 No. 06-4127
Mote further argues that the Plan was estopped from
asserting that she was not totally disabled because the
Social Security Administration (“SSA”) later found Mote to
be disabled under its standards. Mote, however, ignores
the fact that the Plan’s five-year definition of “totally
disabled,” and the standard used in other ERISA
plans, is not the same as the standard used for evaluat-
ing disability under the Social Security Act, 42 U.S.C.
§ 423(d)(1)(A). See Nord, 538 U.S. at 833 (“In determining
entitlement to Social Security benefits, the adjudicator
measures the claimant’s condition against a uniform set
of federal criteria. ‘[T]he validity of a claim to benefits
under an ERISA plan,’ on the other hand, ‘is likely to
turn,’ in large part, ‘on the interpretation of terms in the
plan at issue.’ ” (quoting Firestone, 489 U.S. at 115)). We
previously have stated that a court may consider SSA
determinations as relevant, and an SSA decision could
be binding if an ERISA plan specifically includes SSA
disability as a condition of plan disability. Reich v. Ladish
Co., 306 F.3d 519, 524-25 (7th Cir. 2002). The Plan, however,
did not include any provisions regarding SSA decisions
5
(...continued)
is a close call, there is insufficient contrary evidence to con-
clude that the evidence presented on the videotapes rendered
the Plan’s decision arbitrary and capricious.
Moreover, if Mote believed that the portions of the surveil-
lance videotapes relied upon by the Plan were not representa-
tive of her functional abilities, or if she believed the videotapes
had been edited to omit evidence that supported her claim,
she was free to submit that evidence to the court. Mote elected
not to submit any portion of the surveillance videotapes, and
thus it is not a proper function of this court to speculate on what
the videotapes may or may not have shown.
No. 06-4127 17
in its policy. Further, even if the SSA’s decision could
have had some bearing on the Plan’s decision, the Plan
was unable to consider it because the SSA did not award
benefits to Mote until May 24, 2005, eight months after the
Plan issued its decision. See Tegtmeier, 390 F.3d at 1046(“While Social Security decisions, if available, are instruc-
tive, these determinations are not dispositive . . . .” (empha-
sis added)). Accordingly, the Plan was not estopped from
independently interpreting the terms of its policy merely
because the SSA found Mote to be disabled pursuant to its
standards months after the Plan issued its final decision to
terminate Mote’s long-term disability benefits.
Finally, Mote contends that the district court erred by
dismissing her claims against Aetna upon its finding
that Aetna was not a proper party to the action. She asserts
that she should be able to sue both her employer’s ERISA
plan (i.e., the Plan) and the Plan’s administrator, Aetna.
Generally, in a suit for ERISA benefits, the plaintiff is
“limited to a suit against the Plan.” Blickenstaff v. R.R.
Donnelley & Sons Co. Short Term Disability Plan, 378 F.3d
669, 674 (7th Cir. 2004). While we have allowed plaintiffs
in ERISA cases to sue an ERISA plan administrator in
some limited instances, the operative facts of those cases
differ from those in this case. For instance, in Riordan v.
Commonwealth Edison Co., 128 F.3d 549, 551 (7th Cir. 1997),
we permitted a plaintiff to sue the plan administrator to
recover ERISA benefits because the employer failed to
raise the issue in the district court and the plan docu-
ments referred to the employer and the plan interchange-
ably. Neither of those pivotal facts is present here. Simi-
larly, in Mein v. Carus Corp., 241 F.3d 581 (7th Cir.
2001), we allowed a plaintiff to sue his employer to re-
cover ERISA benefits because the employer and the plan
18 No. 06-4127
were closely intertwined. Id. at 584-85. We are not faced
with that situation in this case, since Aetna was not Mote’s
employer and the Plan’s policy distinguishes between the
Plan, the employer, and Aetna. We thus find that the
district court did not err in dismissing Aetna from the
suit because it was not a proper party to the action.
III.
The district court properly entered summary judgment
for the Plan and denied Mote’s motion for summary
judgment because the Plan’s decision to terminate Mote’s
long-term disability benefits was neither arbitrary nor
capricious, and because the Plan was not estopped from
terminating Mote’s benefits based upon the Social Security
Administration’s subsequent finding that Mote was
disabled under its regulations. The district court also
properly dismissed Mote’s claims against Aetna because
Aetna was not a proper party to the action. Accordingly,
the district court’s judgment is AFFIRMED.
WOOD, Circuit Judge, concurring in part and dissenting
in part. In fact-specific cases like this one, the court of
appeals is usually de facto the last stop on the road for the
litigants. It is thus critical that we get the facts right, even
if we agree on the governing legal standards. Here, al-
though I agree with the majority’s assessment of the claims
No. 06-4127 19
against Aetna, the administrator of the plan at issue,
I must part ways with its evaluation of Brenda Mote’s
claims against the long-term disability plan (“the Plan”).
According to Mote’s treating physicians and other special-
ists, since at least 1998 she has suffered from fibromyalgia,
migraines, a sleep disorder, depression, and pain through-
out her body. From 1998 to 2003, she received benefits
from the long-term disability plan sponsored by her
former employer, Arthur Andersen. In 2003, Mote’s
disability benefits were terminated because the length of
Mote’s disability triggered a shift in the applicable stan-
dard for disability, from the earlier one in which she
needed to show that she could not perform her own job, to
the more stringent one in which she needed to show
that she could not perform any work at all. Mote appealed
the decision, but the Plan affirmed itself. Mote then filed
this suit in federal court, alleging that the Plan’s decision
to terminate her benefits was arbitrary and capricious.
Although arbitrary and capricious review ties our hands
considerably, it is “not a rubber stamp.” Hackett v. Xerox
Corp. Long-Term Disability Income Plan, 315 F.3d 771, 774
(7th Cir. 2003). We have held that a benefits plan gov-
erned by ERISA “must weigh the evidence for and against
[a benefits determination], and within reasonable limits,
the reasons for rejecting evidence must be articulated.”
Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 695 (7th Cir.
1992) (internal quotation marks omitted). Further, “ERISA
requires that specific reasons for denial be communi-
cated to the claimant and that the claimant be afforded
an opportunity for ‘full and fair review’ by the admin-
istrator.” Id. at 688.
I see two significant problems in the Plan’s considera-
tion of Mote’s appeal, either one of which would require
20 No. 06-4127
reversal even under arbitrary and capricious review. First,
in denying Mote’s appeal on September 28, 2004, the
Plan made the following statement: “Reported pain also
cannot be relied upon as [a] sufficient indicator of func-
tional impairment since perception of pain may be af-
fected by individual tolerance, motivation or psychological
factors.” Perhaps if this plan had language in it to that
effect, that conclusion might be acceptable. But most plans
do not, and this one is no exception. To the contrary,
section VII, which includes the governing definitions for
the Plan, says only that “total disability/totally disabled”
means
that solely because of an illness, pregnancy or acciden-
tal bodily injury, an insured employee is unable:
(1) [d]uring the first 5 years of disability to perform
the material duties of the employee’s own occupation;
and (2) [f]rom then on, to work at any occupation for
which such employee is, or may reasonably become,
fitted by education, training or experience. The avail-
ability of employment will not be considered in the
assessment of the employee’s disability.
Plan, sec. VII, ¶ 29. In other words, the Plan takes a func-
tional approach to disability. It does not forbid an em-
ployee from showing functional incapacity through self-
reported symptoms. The ability to “interpret” cannot mean
the ability to add entirely new language to plans. In my
view, Mote’s case is indistinguishable from another
ERISA case involving fibromyalgia, in which we held
that subjective reports of pain can suffice to show one’s
complete disability. Hawkins v. First Union Corp. Long-Term
Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003). The Plan
therefore made an error of law, or behaved arbitrarily and
capriciously, in its analysis. Although it was entitled to
No. 06-4127 21
credit evidence other than Mote’s own reports of pain,
it cannot begin with the premise that reported pain can
never be enough.1
1
My colleagues believe that the Plan’s letter of September 28,
2004, taken as a whole, does not rest on the premise that
reported pain can never be enough, but I see nothing in the letter
that qualifies the statement quoted above. Page 1 of the letter
summarizes the Plan’s conclusion that Mote is not entitled
to relief and sets forth the definition of disability from the
Plan. From the bottom of page 1 through the middle of page 2,
the letter reviews Mote’s medical history. It then states that
[a]vailable medical records do not include references to
clinical, laboratory or radio-graphic findings of progressive
or worsening organic illness, or to severe or intractable
medication side effects. They also do not furnish descriptors
of severity of your musculoskeletal symptoms or other
subjective symptoms. Although your subjective musculo-
skeletal symptoms are credible, they are not accounted
for by identifiable neurological or musculoskeletal pathol-
ogy.
In my view, the only way to read this letter is that Mote’s
reported pain is insufficient to justify relief.
The only other items to which the letter refers are the surveil-
lance evidence, which for the reasons I outline later is insuffi-
cient to support the Plan’s conclusions, and an Independent
Medical Examination (“IME”) conducted by a Dr. Tuttle on
September 15, 2003. Dr. Tuttle was commissioned by the
defense to examine Mote, but his examination could only have
been as good as the data he had. As Mote pointed out in her
brief, both his background and the file he consulted were
deficient. Dr. Tuttle was given only a partial record to review
and “lacked the appropriate medical specialization to evaluate
a fibromyalgia claim.” Based on his one-time examination of
(continued...)
22 No. 06-4127
The Supreme Court’s decision in Black & Decker Disability
Plan v. Nord warns that “Plan administrators, of course,
may not arbitrarily refuse to credit a claimant’s reliable
evidence, including the opinions of a treating physician,”
even though the administrators have no obligation “to
accord special weight to the opinions of a claimant’s
physician.” 538 U.S. 822, 834 (2003). In this case, even if
there were some language in the Plan on which the admin-
istrators could hang their conclusion that subjective
evidence is never enough to support an award of benefits,
the Plan still failed to articulate its “reasons for rejecting
evidence,” which is necessary “if there is to be meaning-
ful appellate review.” Halpin, 962 F.2d at 695. It may be
that even under the correct standards, a weighing of all
the evidence would lead once again to a rejection of her
claim. Nonetheless, Mote is entitled to have the decision,
whatever it is, reached through the use of a fair process.
The record makes clear that this did not happen.
Second, although surveillance evidence can be used to
undermine the credibility of a doctor’s medical opinions
where the diagnosis is based substantially on patient
reports, whether it was used properly here depends on
1
(...continued)
Mote, his review of an incomplete record of her medical
history, and his viewing of the selective excerpts from the
surveillance tapes, Dr. Tuttle stated that he could not “see any
reason why [Mote] cannot return to a sedentary type of posi-
tion at a full 8 hours a day.” IME at 4. I fail to see how Dr.
Tuttle’s opinion, given these significant limitations, could
constitute a valid basis for disregarding the informed and
fully documented conclusions of Mote’s treating physicians. Yet
the Plan justified its decision to deny benefits based solely on
this IME and the surveillance evidence.
No. 06-4127 23
how it was used and for what purpose. The record indi-
cates that the Plan’s medical reviewer, Dr. Hall, did not
receive all of the surveillance information about Mote,
which was gathered over days and days of observation.
Instead, as the majority concedes, he received only a
compilation of two hours of pre-selected footage. After
reviewing this material and looking at no other new
evidence, Dr. Hall withdrew his earlier conclusion that
Mote was totally disabled from working in any occupa-
tion. The fact that the tapes themselves are not in the
record does not somehow make Dr. Hall’s conclusion
reliable. No one disputes that he never saw the vast
majority of the evidence that was collected. One might
just as well view a two-hour snippet of Mote sitting on a
sofa, and conclude that this was all she ever did. Dr. Hall’s
opinion was based on inherently unreliable evidence
and thus should not have been entitled to any weight.
Properly used, surveillance evidence can provide a
basis for choosing between contradictory medical evid-
ence by rendering some of that evidence less credible. This
court has noted that “[w]e can imagine an argument
that even if the activity disclosed . . . does not indicate a
capacity to engage in full-time work, the fact that it is
discrepant with the level of activity described by [the
treating physician], presumably on the basis of representa-
tions made to him by [the plaintiff], fatally undermines [the
plaintiff’s] credibility.” Hawkins, 326 F.3d at 918. Here, the
Plan contends that the surveillance evidence was used to
discredit the treating physicians’ statements and not as an
independent basis for terminating Mote’s benefits, but
the record belies this assertion.
Mote may well have concluded that there was no need to
supplement the record before this court by furnishing all of
24 No. 06-4127
the surveillance tapes, because even the evidence that
Dr. Hall viewed was generally consistent with the records
from Mote’s treating physicians. One problem with the
way in which the Plan used the surveillance evidence is the
fact that it made assumptions that find no support in the
record. Thus, for example, in its 2004 denial of Mote’s
appeal, it described the activities viewed in surveillance as
Mote’s “daily living activities,” even though the record
contains no evidence that these activities were daily or
even regular. As I have already noted, the record contains
only the pre-edited, two-hour videotape that, in essence,
constitutes a highlight reel of Mote’s most active moments
during several days of surveillance. There would have
been no need to plant cameras inside Mote’s home in
order to collect evidence that fairly reflected her ordinary
activities; a fair look at the days’ worth of footage actually
obtained would have sufficed.
Most troubling to me is that when the activities observed
by surveillance are put in context, their utility in assessing
Mote’s level of disability appears flimsy at best. Mote’s
medical records state that Mote “overdoes it. Others aware
of her overdoing it and depend on it. Patient aware of need
for changes.” We have recognized in the past that some
disabled people manage to keep going only through
superhuman efforts; in those circumstances their activities
do not negate the fact that they are disabled. See Perlman
v. Swiss Bank Corp. Comprehensive Disability Protection
Plan, 195 F.3d 975, 983 (7th Cir. 1999). In 1999, Dr. Gruft
noted that Mote had a goal of setting boundaries with her
mother (who is also disabled) and setting limits with
others generally. The only days where Mote was observed
undertaking any significant activity were the days she
drove her mother to and from her mother’s doctor’s
No. 06-4127 25
appointments (once in July 2001 and once two years later
in January 2003). Her activities that day included eating
at a restaurant with her mother, where she sat for one
hour, and standing up for two minutes after approxi-
mately 30 minutes of sitting. The other day of surveillance
came on a day where Mote was required by the Plan to
undergo a functional capacity evaluation. She drove 45
minutes each way to that appointment. Although these
contextual details are in the surveillance notes, there is no
indication that Dr. Hall had access to the written notes
or that they were incorporated into the video that he
watched. Notably, Mote cancelled the second day of
her evaluation because she was in pain. Although one of
Mote’s treating physicians noted in her medical records
that Mote could not operate a motor vehicle, this observa-
tion accompanied a new prescription for a sedative. It is
entirely possible that the doctor meant to warn against
operation of a motor vehicle while taking the drug, rather
than to describe Mote’s ability to drive. The tape show-
ing Mote picking up her mail and newspapers at the end
of her driveway included observations that she limped to
the end of the driveway, that the limp significantly wors-
ened on the walk back to the house, and that Mote strug-
gled twice with the newspaper, and so I am unable to
see how this helps the Plan’s arguments at all.
Other courts have concluded that segments of surveil-
lance showing light physical activities by a plaintiff do
not amount to a showing that she is able to manage full-
time employment. See Osbun v. Auburn Foundry, Inc., 293
F. Supp. 2d 863, 870 (N.D. Ind. 2003) (“[Surveillance]
evidence that [the plaintiff] can perform light physical
tasks for 1.5 hours over two days falls far short of demon-
strating that he is capable of sustaining a job. [The defen-
26 No. 06-4127
dant] produced no evidence showing how long [the
plaintiff] can perform such tasks, whether he can perform
them on a daily basis, or how much pain he must endure
in the process.”); Crespo v. Unum Life Ins. Co. of Am., 294
F. Supp. 2d 980, 996 (N.D. Ill. 2003) (finding, in a claim of
disability due to fibromyalgia, that the defendant’s
“comparison between [the plaintiff’s] daily activities and
the requirements of a full-time job is misplaced,” as
“[t]here is no evidence anywhere in the record that [the
plaintiff] undertakes these activities [including taking
walks and performing household chores] with the regular-
ity and structure of a full time job”); see also id. (noting
that claimants need not “become inert in order to avoid
having their disability benefits denied”).
Viewed in any light, the surveillance evidence in Mote’s
case is nothing like what this court faced in Shyman v.
Unum Life Ins. Co., 427 F.3d 452, 456 (7th Cir. 2005), which
involved an allegedly bedridden man coaching basket-
ball and baseball teams. Mote’s evidence demonstrates that
she was not capable of functioning in any capacity within
the workforce. Surely there is room to conclude that a
person is totally disabled from working without requiring
that she be bedridden and immobile during every sec-
ond of the day. The Plan’s apparent assumption that only
something this extreme would disable her from working
is, or could be viewed by a finder of fact to be, arbitrary
and capricious.
Before concluding, I note with some concern that the
actual plan underlying this claim is shrouded in mystery.
Bizarrely, at oral argument, defense counsel acknowledged
that although he represents both Aetna and the Plan, his
only direction in this case came from Aetna. Aetna, how-
ever, was dismissed from the case at the district court level,
No. 06-4127 27
and all three judges on this panel agree that this was
correct. It is odd, at best, that Aetna therefore seems to be
handling the litigation on appeal and that the Plan is
nowhere to be found. The evidence of the Plan was
also handled carelessly. Mote attached a copy of the long-
term disability insurance contract between Arthur
Andersen and Aetna to her complaint, entitled “Long-Term
Disability Policy,” rather than another document, entitled
“Arthur Andersen LLP Group Long Term Disability
Insurance Plan,” which appears later in the record. Both
Mote and the defendants refer to the first document as the
plan at issue in this case. In the insurance contract, obliga-
tions are imposed on “Aetna” and the “policyholder”
throughout, with Arthur Andersen (Mote’s former em-
ployer) identified as the policyholder. In the latter docu-
ment, which seems to be the actual plan at issue, obliga-
tions are imposed upon the “Administrator,” “Fiduciary,”
and “Appeals Fiduciary,” as one would expect. Arthur
Andersen, which is defunct at this point, is named as
the Plan Administrator, while both Fiduciary roles are
filled by Aetna.
Given these two documents, it is unclear how an em-
ployee would know which plan document she should rely
upon, who was in charge of the Arthur Andersen long-
term disability plan, or if the Plan was its own entity
separate from Aetna. The employee would need to
consult both plans, which notably have similar but not
identical definitions of disability. Mote has not pressed
this issue in support of any of her arguments, and so we
do not need to consider its implications on the case at
hand. It does help to explain, however, some of the prob-
lems in this case.
Because, in my view, Mote has raised genuine issues of
fact on the question whether Aetna’s determination (or,
28 No. 06-4127
more accurately, the Plan’s) that she could not show
inability to perform any job in the economy was arbitrary
and capricious, I would reverse the district court’s grant
of summary judgment in favor of the Plan and remand
for further proceedings. I therefore respectfully dissent.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-12-07