Speciale, Janet v. Blue Cross Blue Asso

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1207
JANET SPECIALE,
Plaintiff-Appellee,
v.
BLUE CROSS AND BLUE SHIELD ASSOCIATION
and NON-CONTRIBUTORY NATIONAL LONG TERM
DISABILITY PROGRAM,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 5390—David H. Coar, Judge.
____________
ARGUED SEPTEMBER 7, 2007—DECIDED AUGUST 7, 2008
____________
Before BAUER, POSNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Janet Speciale was an employee
of the Health Care Service Corporation (“HCSC”) for a
little over two years when she applied for long-term
disability benefits under Blue Cross and Blue Shield
Association’s (“Blue Cross”) Non-Contributory National
Long Term Disability Program (“the Program”). Speciale
suffered from fibromyalgia since 1986, but in 2001 claimed
an exacerbation of her symptoms disabled her from
2 No. 07-1207
working. The Program’s Medical Review Committee
(“MRC”) denied Speciale’s claim and her subsequent
appeal. It found that her symptoms, although trouble-
some, did not rise to the level of disability because two
of her treating physicians believed she could work with
certain physical restrictions. Speciale filed this action in
the district court, and both parties moved for sum-
mary judgment. Applying an arbitrary-and-capricious
standard of review, the district court overturned the MRC’s
decision and granted Speciale’s application for benefits.
This appeal followed. Because the reasons given by the
MRC for its decision were reasonable and supported by
the record, we reverse the district court’s judgment and
remand for entry of summary judgment in favor of
Blue Cross and the Program.
I. Background
Speciale worked for HCSC as a senior account executive
from June 1998 through November 7, 2000. HCSC is an
independent licensee of Blue Cross, and as an employee,
Speciale was covered by the Program, entitling her to
benefits if she should ever become disabled.1 The Program
1
Section 1(p) of the Program contains the relevant definition:
“Disabled” means . . . that a Participant is, determined on
the basis of medical evidence satisfactory to the Committee,
wholly prevented, by reason of mental or physical disabil-
ity, from engaging in any occupation comparable to that in
which he was engaged for the Employer, at the time his
disability occurred. An occupation is considered compara-
ble to that in which the Participant was engaged for the
(continued...)
No. 07-1207 3
is administered by the National Employee Benefits Com-
mittee (“NEBC”) of Blue Cross. The NEBC delegated day-
to-day responsibilities for the Program to the National
Employee Benefits Association (“NEBA”), which in turn
assigned the authority to determine claims to the Med-
ical Review Committee.
Speciale’s job was hectic; she was required to respond
constantly to problems and emergencies with clients or
brokers and spent nearly half of her time traveling to
meetings. Her job required fine-finger movement, talking,
and listening, as well as climbing stairs and lifting up to
50 pounds from either the floor or table level. She was
also required to work overtime seven or more times per
month.
A. Speciale’s Medical History
Although her job could be considered stressful for the
average person in good health, Speciale suffered from a
number of medical conditions that made her position even
more difficult. She was diagnosed with fibromyalgia in
1986, and her symptoms, though initially manageable,
began to worsen in 2000. Dr. Kevin Snydersmith, her
physician, recorded in September of 2000 that Speciale
complained of severe back pain, as well as pain and
numbness in her left shoulder and leg. Snydersmith did
not think all of her symptoms were explained by the
fibromyalgia, so he diagnosed her with chronic pain
(...continued)
Employer if the earnings potential of the occupation is
comparable to the employee’s salary range at the time
he became Disabled.
4 No. 07-1207
syndrome. He noted that her job is “fairly intense” and
she had used most of her sick days because of her med-
ical problems.
Dr. Snydersmith’s diagnosis of chronic pain syndrome
set in motion treatment and diagnostic regimes that
ultimately resulted in Speciale’s application for long-term
disability benefits on April 18, 2001. In October 2000
Dr. Snydersmith noted that Speciale was on at least
four different medications and also received shots of
Toradol once or twice per month to control her pain. That
same month Speciale met with rheumatologist Dr. Ann
Winny, who spoke at length with Speciale and believed
her symptoms were “progressively worsening.” Speciale
mentioned she might take time off from work to see if
the stress of her job was the cause of her deterioration.
Dr. Winny believed the symptoms were due to
fibromyalgia and chronic pain syndrome but did not
rule out the possibility of multiple sclerosis (“MS”).
Speciale met with Dr. Brian O’Shaughnessy on Novem-
ber 1, 2000. After evaluating her symptoms and a recent
MRI of the brain, he believed she was suffering from
some form of demyelinating disease and wanted her to
have a lumbar puncture to further investigate this possibil-
ity. Dr. O’Shaughnessy reiterated his suspicions in Febru-
ary 2001 when Speciale came into his office and reported
that she was dizzy and tired, suffered extreme back pain,
and had difficulty walking. Dr. O’Shaughnessy thought
this could be explained by an exacerbation of a
demyelinating disease but noted that Speciale had an
appointment with Dr. Boris Vern, head of the multiple
sclerosis clinic at the University of Illinois, for testing.
Dr. O’Shaughnessy reported to Blue Cross on March 17
that Speciale could not work due to her severe pain and
No. 07-1207 5
fatigue and her return to work was “indefinite pending
[the] outcome of testing” by Dr. Vern. Tests conducted
on March 22 indicated that Speciale’s “sensory symptoms
are overshadowed and probably colored by her chronic
pain, which seems to [be] of myofascial origin.” Dr. Vern
thought that MS could be a possibility but that it was
“not strongly supported by the available lab studies.”
While under the care of Dr. O’Shaughnessy, Speciale
continued to see Dr. Snydersmith. In mid-January 2001, he
provided her with a “quad” cane to ease her walking
difficulties. His notes reveal that Speciale was suffering
from frequent, painful kidney stones. She was put on
various medications, including Vicodin, and at one point
was admitted to the emergency room for pain control and
hydration. In February Snydersmith referred Speciale to
physiatrist Dr. Dennis Keane. After an initial consulta-
tion, Dr. Keane wrote that Speciale’s symptoms were
somewhat alleviated after a vacation to Arizona; however,
she still experienced a great deal of pain in her back that
often radiated down her left leg. He seemed to assume
that Speciale suffered from MS because she used a quad
cane to help her “slightly unsteady gait from her MS.” He
reexamined Speciale in early June and found her to be
doing “dramatically better” after being placed on oral
steroids.
Despite Dr. Vern’s doubts, Speciale’s other doctors
believed she was suffering from symptoms related to MS.
Dr. O’Shaughnessy wrote on May 17 that he doubted
fibromyalgia accounted for her problems because “she
has had [it] for 14 years and it has not caused” the symp-
toms of which she was more recently complaining. Less
then a month later he wrote: “I feel her clinical picture is
most compatible with multiple sclerosis. I do not see her
6 No. 07-1207
improving enough at this time to return to work.” Dr.
Snydersmith supported this diagnosis and found her
symptoms were “likely due to developing MS.” Dr. Winny
agreed that Speciale “is probably disabled at this point”
because her MS makes it difficult for her to walk.
Although Speciale’s symptoms were serious, the tenta-
tive diagnosis of MS turned out to be inaccurate. Dr.
Snydersmith told Blue Cross Nurse Sue Majewski on
August 27 that the lumbar puncture did not confirm MS
and the diagnosis was simply fibromyalgia that had
been worsening in recent months. He could not predict
how long Speciale could stand or walk each day as he no
longer managed her case (Dr. Keane had taken over
treatment of her pain).
Speciale’s application for disability benefits was re-
viewed in August 2001 by Dr. E. Richard Blonsky, Blue
Cross’s senior medical consultant. Dr. Blonsky filled out
a Physician’s Recommendation Form and noted that
there was no clear evidence of MS. He went on to state
that Speciale suffered from fibromyalgia for 20 years and
had worked, making this a “very marginal case.” He also
noted the lack of “confirmatory findings” and that the
record contained “a lot of subjective complaints.” He
concluded: “I am not totally convinced of her disability.
Were there any H.R., performance issues?” Dr. Blonsky
reevaluated Speciale’s file on September 5, this time
confirming she did not have MS and reaffirming his
previous finding that she was not disabled. Indeed, Dr.
Keane had responded to an inquiry from the MRC by
pointing out that Speciale suffered from back pain, leg
spasms, weakness, and fatigue. Even so, he told the
MRC that Speciale was physically capable of performing
sedentary and light-duty jobs.
No. 07-1207 7
B. Procedural History
The MRC informed Speciale of its decision to deny her
benefits application on October 30, 2001. It noted that
Drs. Snydersmith, O’Shaughnessy, and Winny all be-
lieved Speciale had MS when they said she was dis-
abled, but it was not known whether the negative lumbar
puncture would change their opinions. Further, the
committee noted that Dr. Keane believed she could work
with some limitations (such as changing positions fre-
quently) and his opinion carried weight because of his
specialty in pain management. The letter also stated
that the MRC conducted a vocational analysis, which
revealed at least six career opportunities in the surround-
ing area that would pay a comparable salary while
still accommodating Speciale’s restrictions.
Speciale timely appealed the denial of benefits. She
supplemented the record with new evidence, including
progress notes and a functional-capacity questionnaire
from Dr. Winny and progress notes from Dr. Keane. The
questionnaire noted Speciale’s “marked limitation” in
dealing with work-related stress due to her fibromyalgia.
Her physical limitations were also quite severe: she
could only sit for 10 minutes and stand for 15 minutes in
a 60-minute period; she had to walk every 30 minutes
for at least 5 minutes at a time; she needed a job that
permitted shifting positions and allowed her to take
unscheduled breaks; Speciale could not lift more than ten
pounds and was limited in her ability to reach or handle
objects repetitively. Finally, Winny noted that Speciale
would have to be absent from work more than three
times every month.
Dr. Blonsky reevaluated Speciale’s file in April 2002. He
spoke with Dr. Winny, who told him that trigger-point
8 No. 07-1207
injections help control Speciale’s fibromyalgia symptoms.
Dr. Winny also believed that a job that did not require
driving or travel might be tolerable and could be at-
tempted. Based on this, Dr. Blonsky concluded “that the
claimant was not totally disabled [on] 5/1/01 or currently.”
The MRC denied Speciale’s appeal on May 8, 2002, in
a letter written by Barbara Grant, R.N., the NEBC’s assis-
tant secretary and the director of the disability program
for the NEBA. Grant noted that Dr. O’Shaughnessy’s
opinion was given little weight because he was not avail-
able for comment after it was revealed that Speciale did
not have MS. Similarly, Dr. Snydersmith still thought
Speciale was declining due to fibromyalgia but was no
longer treating her and could not identify any present
restrictions. Dr. Winny’s functional-capacity question-
naire provided Speciale with her strongest argument, but
the MRC did not give it great weight because Dr. Winny
had told Dr. Blonsky that Speciale could likely work in a
job that did not require travel. Finally, Dr. Keane believed
that Speciale could work with certain restrictions. Grant
had also asked Nurse Majewski to conduct a second
vocational analysis, which confirmed the availability of
comparable jobs that did not require bending or twisting,
allowed for variable sitting and standing, and did not
require travel.
After her appeal failed, Speciale sent the MRC a copy
of a favorable ruling by the Social Security Administra-
tion granting her application for disability benefits.
Speciale asked the MRC to reconsider its decision based
on this new evidence. Grant responded, stating that
reconsideration requests were not normally granted after
a final decision. Grant also noted that Social Security
rulings carried little weight because the Program used
an alternate definition of “disabled.”
No. 07-1207 9
Speciale filed this action in the district court seeking
relief under the Employee Retirement Income Security
Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B). Both
parties moved for summary judgment. The district court,
applying an arbitrary-and-capricious standard of review,
granted Speciale’s motion and denied the Association’s.2
The court found Dr. Blonsky’s and Nurse Grant’s rea-
soning flawed because of the emphasis each put on the
difference between subjective and objective evidence of
pain. Further, the court believed that Grant had not
sufficiently explained why she did not give weight to
Dr. Winny’s functional-capacity questionnaire. Based on
these flaws, the court held the denial was “downright
unreasonable.” Blue Cross and the Program timely ap-
pealed.
II. Discussion
A. Standards of Review
We review a grant of summary judgment de novo. Ruiz
v. Cont’l Cas. Co., 400 F.3d 986, 989 (7th Cir. 2005). Sum-
mary judgment is appropriate when “there is no genuine
2
A denial of benefits is normally reviewed de novo “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 Co. v.
Bruch, 489 U.S. 101, 115 (1989). In such a case, the court applies
the “arbitrary and capricious” standard. Hess v. Reg-Ellen Mach.
Tool Corp. Employee Stock Ownership Plan, 502 F.3d 725, 727 (7th
Cir. 2007). The district court found sufficient discretionary
language in the Program and applied the more deferential
standard. That ruling is not challenged on appeal.
10 No. 07-1207
issue as to any material fact and . . . the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(c).
Where, as here, the court is faced with cross-motions
for summary judgment, “our review of the record re-
quires that we construe all inferences in favor of the
party against whom the motion under consideration is
made.” Tegtmeier v. Midwest Operating Eng’rs Pension
Trust Fund, 390 F.3d 1040, 1045 (7th Cir. 2004) (internal
quotation marks omitted).
The district court held, and the parties concede, that
review of the MRC’s denial of benefits proceeds under
the arbitrary-and-capricious standard, and we will only
look to ensure that the Program’s decision “has rational
support in the record.” Davis v. Unum Life Ins. Co. of Am.,
444 F.3d 569, 576 (7th Cir. 2006) (internal quotation
marks omitted). “Put simply, an administrator’s decision
will not be overturned unless it is downright unreason-
able.” Id. (internal quotation marks omitted). Although
deferential, we do not “rubber stamp” the administrator’s
decision. Hackett v. Xerox Corp. Long-Term Disability Income
Plan, 315 F.3d 771, 774 (7th Cir. 2003). However, “we
will uphold the plan’s decision 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
reasonable explanation of relevant plan documents, or
(3) the administrator has based its decision on a consider-
ation of the relevant factors that encompass the im-
portant aspects of the problem.” Sisto v. Ameritech Sickness
& Accident Disability Benefit Plan, 429 F.3d 698, 700 (7th
Cir. 2005) (internal quotation marks omitted).
No. 07-1207 11
B. Reasonableness of the MRC’s Decision
On appeal, Blue Cross and the Program argue that the
district court misapplied the arbitrary-and-capricious
standard and instead conducted a plenary review of the
record by reweighing the relevant evidence. They maintain
that the MRC’s denial of benefits rested on two solid
grounds that entitle it to deference. First, the MRC deter-
mined that the weight of the evidence—including
Dr. Winny’s belief that Speciale could attempt work
with some restrictions and Dr. Keane’s statement that
she could engage in sedentary or light-duty jobs—did not
support a finding of disability. Second, even if Speciale
could not continue in her current position, other compara-
ble employment opportunities existed that rendered her
not disabled for purposes of the Program. Speciale re-
sponds by questioning the clarity of Dr. Keane’s report as
well as the basis upon which Dr. Blonsky made his recom-
mendation to deny benefits. She also argues that the
vocational analyses conducted by Blue Cross did not
consider all of her symptoms and were therefore unreli-
able.
Speciale claims that Dr. Blonsky’s review of her file—in
which he noted a lack of “confirmatory findings” and
pointed out that the record was only full of “subjective
complaints”—was flawed in light of our decision in
Hawkins v. First Union Corp. Long-Term Disability Plan,
326 F.3d 914 (7th Cir. 2003). There, we held that the plan
acted arbitrarily and capriciously in denying a claim
for benefits because its primary medical consultant
stated that sufferers of fibromyalgia could never be dis-
abled because the pain experienced was entirely sub-
jective and not capable of being confirmed by objective
findings. Hawkins, 326 F.3d at 919. However, as we noted
12 No. 07-1207
in Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir.
2007), “[a] distinction exists . . . 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 functional
capabilities, which can be objectively measured.” Dr.
Blonsky did not question that Speciale suffered from
fibromyalgia or that she experienced constant pain;
rather, he only pointed out the lack of objective evidence
supporting Speciale’s claim that her pain resulted in
severe functional limitations rendering her disabled.
The only evidence of such limitations is the functional-
capacity questionnaire completed by Dr. Winny. That
form did indicate that Speciale was unable to cope with the
stress of her job because it heightened her symptoms and
limited her physical capabilities. Dr. Blonsky reported,
however, that Dr. Winny believed Speciale would be
able to go back to work on a trial basis so long as she
was not required to travel.3 Indeed, it was Dr. Winny
who questioned—in her October 28, 2000 progress
notes—“whether [Speciale] can continue her work which
involves a lot of travel, [as] sitting in the car is very
uncomfortable.”4 This restriction was then reincorporated
3
Speciale points to 29 C.F.R. § 2560.503-1(h)(3)(v) that dis-
allows the use of a medical consultant on appeal who was
involved in the original benefit denial. However, that regulation
applies only to claims filed on or after January 1, 2002. See 29
C.F.R. § 2560.503-1(o). Speciale filed her claim on April 18, 2001.
4
Speciale argues that Dr. Winny’s statement to Dr. Blonsky
is inadmissible hearsay and should be disregarded. However,
our task is only to review the reasonableness of the denial. A
(continued...)
No. 07-1207 13
into the second vocational analysis, which confirmed the
availability of comparable employment that did not re-
quire travel.
Speciale contends that the vocational analysis under-
taken by Blue Cross was inadequate because it did not
consider side effects from her medication, fatigue, or
inability to work overtime. However, none of these side
effects were listed as definite restrictions by either Dr.
Winny or Dr. Keane. Responding to a request for more
information, Dr. Keane checked “yes” on a form asking if
Speciale was “physically capable of performing the duties
of a sedentary or light duty job with restrictions.” Though
he unnecessarily listed “[b]ack pain, leg spasms, weak-
ness, [and] fatigue” as symptoms that “would have pre-
vented her from working” if he had checked “no,” his
intent to indicate that Speciale could work with restric-
tions is clear. Keane goes on to note that Speciale needs
“frequent changes of position” and she is “unable to
bend/twist fully,” both of which were included as re-
strictions in the second vocational analysis conducted by
Nurse Majewski.
Similarly, the functional-capacity questionnaire com-
pleted by Dr. Winny does not say that the claimed side
effects were actual restrictions that prevented Speciale
from doing any sort of work, sedentary or otherwise.
Her conversation with Dr. Blonsky indicated just the
4
(...continued)
plan administrator is not a court of law and is not bound by
the rules of evidence. Karr v. Nat’l Asbestos Workers Pension
Fund, 150 F.3d 812, 814 (7th Cir. 1998). Our review may thus
consider even testimonial statements made outside of court if
the MRC did so in rendering its decision.
14 No. 07-1207
opposite: she believed that Speciale could work despite her
condition, so long as travel was not required. In other
words, the symptoms Speciale wanted the MRC to weigh
more heavily, in both its general review of her record and
the vocational analyses, are not specified anywhere as
restrictions by her physicians.5 The MRC’s denial letter
demonstrates that the committee considered all of her
symptoms but did not find them to be totally disabling
in light of the absence of a physician’s report stating
unequivocally that those symptoms resulted in her total
disability.
5
Speciale argues that both Abram v. Cargill, Inc., 395 F.3d 882(8th Cir. 2005), and Godfrey v. BellSouth Telecommunications, Inc.,
89 F.3d 755 (11th Cir. 1996), support her position that the MRC
acted unreasonably by not considering all of her symptoms
in their totality. However, in both Abram and Cargill, the plan
administrators irrationally limited their inquiry to only one of
the claimant’s medical conditions. See Abram, 395 F.3d at 886-87(“The record shows three conditions that may be contributing
to Abram’s disability: PPS, depression, and obesity. . . . [T]he
Plan focused only on Abram’s PPS, asking whether it was
the cause of her fatigue.”). The defendants in Godfrey went
further and completely ignored evidence of fibromyalgia
submitted to them by the claimant. See Godfrey, 89 F.3d at 759(“[T]he only rational explanation for the failure of the defen-
dant’s physicians to follow up on evidence which they did
have and to ignore the effects of the medications that the
plaintiff was taking is that they knew that in fact the plaintiff
was disabled and following up leads and considering the effect
of the medications would only confirm what any reasonable
doctor would have already known.”). Here, the MRC con-
sidered all the evidence and determined that it did not rise to
the level of disability given the statements of Drs. Winny and
Keane that Speciale could work with certain restrictions.
No. 07-1207 15
Speciale also mentions in passing that the MRC failed to
consider the disability ruling and award of benefits by
the Social Security Administration. However, as
Speciale’s counsel admitted in her June 2004 letter to the
NEBC, the judgment was not sent to the Association
until October 23, 2002—five months after the MRC ren-
dered its decision on Speciale’s appeal. Further, the
Program’s documents make clear that “entitlement to
benefits under the Program shall not be dependent upon
entitlement to [Social Security] benefits.” See Tegtmeier, 390
F.3d at 1046-47 (noting that Social Security decisions “are
instructive” but not “dispositive” and that a plan’s deci-
sion “not to reopen the claims process is completely
proper, given [the plan’s] concern for finality of deci-
sions”).
Given the highly deferential standard of review and the
thorough review of the evidence upon which the MRC
based its decision, we cannot say that the committee’s
action was “downright unreasonable.” Our review, and
that of the district court, is limited to the reasons given
by the plan administrator and does not extend to
reweighing evidence. The MRC reasonably disregarded
the tentative findings of Dr. O’Shaughnessy and
Dr. Snydersmith that Speciale was disabled due to MS
because it was ruled out after the negative lumbar punc-
ture. The only evidence of Speciale’s functional capabil-
ities provided to the MRC consisted of the questionnaires
completed by Drs. Winny and Keane and Dr. Blonsky’s
reports. The committee was therefore faced with the
conflict between Dr. Winny’s questionnaire and Dr.
Keane’s belief that Speciale could work, along with
Dr. Winny’s later statement that Speciale could attempt a
position that did not require travel. As stated in the
16 No. 07-1207
initial letter of denial, the MRC chose to give weight to
Dr. Keane’s report because of his expertise in pain man-
agement and because “his opinion was specific, and
quantified.” This makes sense, particularly in light of the
apparent contradiction between Dr. Winny’s question-
naire and her statement to Dr. Blonsky.
Moreover, Speciale never produced any objective evi-
dence that her pain caused any functional limitation. Dr.
Blonsky and Nurse Grant were entitled to consider the
subjective nature of Speciale’s complaints when deciding
if she was disabled, and those symptoms, standing
alone, were not enough to rise to the level of total disabil-
ity. See Ruiz, 400 F.3d at 992 (noting that “the primary
evidence supporting Ruiz’s claim that he cannot per-
form any work for which he is trained was his own sub-
jective complaints of pain” and finding such evidence
insufficient to render the administrator’s denial unreason-
able).
In short, the justifications given by the MRC for its
decision—although certainly not indisputable—are reason-
able, which is all that is required. See Davis, 444 F.3d at 576-
77 (“The judicial task here is not to determine if the admin-
istrator’s decision is correct, but only if it is reasonable.”);
Sisto, 429 F.3d at 701 (“Raising debatable points does not
entitle [the claimant] to a reversal under the arbitrary-and-
capricious standard.”). Because the record contains rational
support for the MRC’s assessment, we will not disturb
its decision to deny Speciale’s claim for disability bene-
fits. Accordingly, the judgment of the district court is
REVERSED, and the case is REMANDED with instructions to
enter judgment in favor of Blue Cross and the Program.
8-7-08