Tate, JoAnn v. Long Term 506

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-1022 & 07-1116
JO A NN T ATE,
Plaintiff-Appellee,
Cross-Appellant,
v.
L ONG T ERM D ISABILITY P LAN FOR S ALARIED E MPLOYEES
OF C HAMPION INTERNATIONAL C ORPORATION #506,
Defendant-Appellant,
Cross-Appellee.
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 C 8204— Blanche M. Manning, Judge.
A RGUED JANUARY 14, 2008—D ECIDED S EPTEMBER 19, 2008
Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Jo Ann Tate claims that the
administrator of her employer’s long-term disability plan
(the “Plan”) violated the Employment Retirement Income
Security Act (“ERISA”), 29 U.S.C. §§ 1001 et seq., when,
after four years, it terminated her long-term disability
benefits. The Plan’s determination was based on its con-
2 Nos. 07-1022 & 07-1116
clusion that despite Tate’s long history of psychiatric
difficulties, including a major depressive disorder and
bipolar disease, she is able to perform an occupation for
which she is qualified. Yet the Plan did not determine
what occupation that might be, or explain why, after years
of concluding that Tate was disabled, it found Tate (a
former sales employee who has not left her house in
many years except to see her treating physicians) suddenly
able to work. Tate filed suit to recover benefits after
exhausting her administrative appeals. On cross-motions
for summary judgment, the district court determined
that the Plan administrator had acted arbitrarily and
capriciously in denying Tate’s benefits and remanded the
case so that the Plan could conclusively establish whether
Tate is entitled to benefits. The district court also denied
Tate’s motion for attorney’s fees.
We affirm the district court’s decisions. Because the
record does not suggest the Plan’s decision to terminate
Tate’s long-term disability benefits was the result of an
informed reasoning process, we conclude that the deci-
sion was arbitrary and capricious. But we cannot say
that Tate was entitled to continued long-term disability
benefits at the time her benefits were terminated, so we
affirm the district court’s decision to remand the case
for further proceedings. Additionally, because it is too
early to tell if Tate is the “prevailing party” in this case, we
affirm the district court’s denial of Tate’s motion for
attorney’s fees.
Nos. 07-1022 & 07-1116 3
I. BACKGROUND
Tate was employed as a sales representative at Nation-
wide Papers, a subsidiary of Champion International
Corporation, until June 30, 1998, when she left work due to
problems with severe anxiety and depression. As an
employee of Champion, Tate was eligible for short-term
and long-term disability benefits. Champion’s benefits
plan is governed by ERISA, 29 U.S.C. §§1001 et seq.1
After receiving short-term disability benefits for six
months, Tate applied for long-term disability in 1999. The
Plan determines an employee’s eligibility for long-term
disability benefits in two stages. For the first twenty-four
months after an employee receives short-term disability
benefits, the employee must be found unable to perform
the duties of her employment with the company. To
qualify for benefits after that time, the employee must
be found unable to engage in “any occupation” for which
she “is or may become reasonably qualified by training,
education, or experience.” The Plan refers to these dif-
ferent standards of eligibility as the “own occupation”
standard and the “any occupation” standard. Tate was
approved for long-term disability on March 8, 1999. The
“own occupation” stage ended in 2001 and Tate con-
tinued to receive benefits for another two years, during
which time she submitted reports by her physicians
regarding her condition.
1
When Tate first applied for disability benefits, CORE, Inc.
served as the third-party claims administrator. It was re-
placed on January 1, 2001 by Wausau Benefits, Inc.
4 Nos. 07-1022 & 07-1116
Pursuant to the administrative services agreements
between the Plan administrators and Champion, the Plan
relied on consulting physicians to review the files of
employees receiving benefits. In the four years that Tate
received benefits, at least twelve physicians evaluated
her condition. Among those physicians are Tate’s own
physicians, Dr. Sharon Greenburg and Dr. Lawrence
Kayton, both of whom treated Tate, as well as a multitude
of physicians retained by the Plan to evaluate Tate’s
disability.
Although Tate’s entire medical history need not be
cataloged here, a brief synopsis provides context for this
case. Tate suffered from depression, panic disorder, and
bipolar disorder. In 1999, she was diagnosed by Dr.
Greenburg as having a major depressive disorder that
caused her to feel hopeless, fatigued, irritable, and uninter-
ested in people. Dr. Kayton (who conferred with Dr.
Greenburg about Tate’s condition) diagnosed Tate with
bipolar disorder. Tate’s physicians attempted to improve
her condition with medication which had varying re-
sults. In November 2000, Tate reported she was able to
perform some activities of daily living but that she did not
leave her house except to see her doctor. She continued to
suffer from severe mood swings and had difficulty main-
taining concentration, engaging in social interactions, and
completing tasks. Although her mood swings appear to
have ceased in late 2001 and early 2002, they returned by
June 2002, when her overall condition worsened. Her
depression never subsided. In February 2003, she was
struggling with activities of daily living other than
eating and cleaning.
Nos. 07-1022 & 07-1116 5
On May 30, 2003, the Plan informed Tate she was no
longer eligible for disability benefits because she did not
meet the definition of “totally disabled” under the “any
occupation” standard. The Plan terminated her benefits
based on a report by Dr. Gail Tasch, who stated that
although Tate exhibited signs of major depressive dis-
order, she “did not manifest significant measurable
impairment which would prevent her from performing her
occupation or any occupation.” Dr. Tasch noted that Tate,
who had difficulty concentrating and establishing a daily
routine, was nonetheless able to care for her “affairs” and
herself and her pets. Dr. Tasch did not examine Tate; her
analysis was based on a review of Tate’s file, which
included case manager notes, an employee questionnaire,
a discussion with Dr. Kayton, psychotherapy progress
notes, and the review of another physician’s report dated
April 17, 1999.
Tate appealed the Plan’s decision to terminate her
benefits, arguing that Dr. Tasch’s opinion was based on
outdated medical records. Tate submitted a report from
Dr. Kayton dated November 20, 2003, which stated that
Tate suffered from moderately severe bipolar disorder
that, despite intensive treatment, had not sufficiently
stabilized to permit her to work in a job commensurate
with her abilities, experience, and previous levels of
employment. In support of his conclusion, Dr. Kayton
noted that Tate was hypomaniac, inefficient in com-
pleting tasks, and that she suffered from concentration
problems and episodic rages.
In response to Tate’s appeal, the Plan had Tate’s medical
record reviewed by Dr. Barbara H. Center. Dr. Center, like
6 Nos. 07-1022 & 07-1116
Dr. Tasch, did not examine Tate, but spoke to both of her
treating physicians and reviewed, among other things,
Tate’s job description and résumé. Dr. Center concluded
that Tate did not manifest significant measurable impair-
ment that would render her unable to do any job for
which she was qualified. Dr. Center based this con-
clusion on the fact that Tate was able to maintain her
own home, complied with treatment, and had experienced
benefit from medication. The Plan notified Tate that
based on Dr. Center’s review, she no longer qualified for
long-term disability benefits.
Tate brought suit challenging the termination in the
Northern District of Illinois. The parties filed cross-motions
for summary judgment. The district court granted Tate’s
motion for summary judgment, holding that the Plan’s
decision to terminate Tate’s benefits was arbitrary and
capricious because the reviewing physicians’ opinions
were comprised of conclusory assertions unsupported
by facts. Specifically, the court noted that the Plan failed
to identify the types of positions Tate could undertake,
conduct an employability review, or conduct a trans-
ferable skills analysis (TSA). The Plan appeals this decision.
The district court remanded the case so that the Plan
could conclusively determine whether Tate is entitled to
disability benefits. The court also denied Tate’s request
for attorney’s fees, holding Tate was not yet a prevailing
party and that the record did not suggest the Plan had
terminated Tate’s benefits in bad faith. Tate filed a
motion to alter or amend the court’s judgment pursuant
to Rule 59(e) of the Federal Rules of Civil Procedure,
Nos. 07-1022 & 07-1116 7
arguing that the court should have reinstated her bene-
fits rather than remanding the case for further disposition.
The court denied Tate’s motion on the ground that the
Plan’s denial of Tate’s benefits was an “initial denial”
rather than a termination of benefits for which Tate had
previously been determined eligible. Tate appeals these
decisions and seeks attorney’s fees.
II. ANALYSIS
We review a district court’s grant of summary judgment
de novo. Schneider v. Sentry Group Long Term Disability
Plan, 422 F.3d 621, 626 (7th Cir. 2005). In reviewing cross-
motions for summary judgment, we view all facts and
draw all reasonable inferences in a light most favorable
to the party against whom the motion is made. Gazarkiewicz
v. Town of Kingsford Heights, Ind., 359 F.3d 933, 939 (7th
Cir. 2004).
A. Termination of Tate’s benefits was arbitrary and
capricious.
Where, as is the case here, the benefit plan gives the
administrator discretionary authority to determine eligibil-
ity for benefits or to construe the terms of the plan, we
review a denial of benefits under the arbitrary and capri-
cious standard. Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989); Hackett v. Xerox Corp. Long-Term Disability
Income Plan, 315 F.3d 771, 773 (7th Cir. 2003). The parties
do not dispute that the Plan’s administrator has discre-
tionary authority and that the district court used the
8 Nos. 07-1022 & 07-1116
correct standard when it reviewed Tate’s denial of bene-
fits under the arbitrary and capricious standard.
Notwithstanding the highly deferential nature of this
standard, we have held that termination procedures must
substantially comply with the ERISA requirement “that
specific reasons for denial be communicated to the claim-
ant and that the claimant be afforded an opportunity
for ‘full and fair review’ by the administrator.” Halpin v.
W.W. Grainger, Inc., 962 F.2d 685, 688-89 (7th Cir. 1992).
“[W]e will not uphold a termination when there is an
absence of reasoning in the record to support it.” Hackett,
315 F.3d at 774-75 (standard of review is not a “rubber
stamp”); Halpin, 962 F.2d at 695 (“[T]he administrator
must weigh the evidence for and against [the denial or
termination of benefits], and within reasonable limits, the
reasons for rejecting evidence must be articulated if there
is to be meaningful appellate review.”) (internal quotation
marks omitted).
The issue in this case is whether the Plan offered a
reasonable explanation, based on the evidence, for its
determination that Tate was not “totally disabled” as
defined by the terms of the plan. In determining Tate’s
eligibility for long-term disability benefits, the Plan had
to determine whether Tate was “incapable of performing
any occupation or employment for which [she was]
qualified by education, training, or experience.” So as a
matter of logic, this means the Plan needed to consider (at
minimum) Tate’s qualifications in determining whether
her impairment affects her ability to work.
We agree with the district court that the Plan’s decision
to terminate Tate’s benefits was arbitrary and capricious
Nos. 07-1022 & 07-1116 9
because the Plan’s conclusion that Tate’s disability did
not render her unable to do any job for which she was
qualified was not based on any explanation or reasoning.
The Plan twice informed Tate of its decision to terminate
her benefits, first based on a report by Dr. Tasch, and then
based on a report by Dr. Center in response to Tate’s
appeal. Both determinations are at issue here.
Dr. Tasch first reviewed Tate’s file and issued the
report that provided the basis for the Plan’s May 30, 2003
determination that Tate did not qualify for benefits. As an
initial matter, the record does not demonstrate that Dr.
Tasch even reviewed Tate’s employment file so it is not
clear how she could have come to any reasonable con-
clusion about Tate’s qualifications. See Quinn v. Blue Cross
& Blue Shield Ass’n, 161 F.3d 472, 476-77 (7th Cir. 1998)
(finding that plan administrator’s review was arbitrary
and capricious when the reviewer failed to adequately
investigate the requirements of the claimant’s previous
occupation). In her report, Dr. Tasch states that though
Tate “appears to meet the criteria for a diagnosis of Major
Depressive Disorder,” she is not unable to perform any
occupation. In lieu of an explanation for this conclusion,
Dr. Tasch states (and this is the full extent of her analysis)
that because Tate was “working in a high stress position
previously [she] may benefit from a job that is not so
intense.” We do not know what she means by jobs that are
not “intense” or whether Tate is qualified for those jobs.
The Plan’s letter informing Tate that her benefits were
being denied contains no reasons for the denial other
than stating that a physician found that Tate was not
totally disabled from any occupation so there is nothing
further in the initial denial letter for the court to review.
10 Nos. 07-1022 & 07-1116
In response to Tate’s appeal the Plan had her file re-
viewed by Dr. Center, whose report indicates that she
considered Tate’s résumé and job description, in addi-
tion to her medical files. But what Dr. Center did with
that additional information is less than clear. For ex-
ample, Dr. Center’s report states that “Interpersonal
relationship difficulties characterized by the patient
becoming ‘enraged’ if she feels she is being patronized or
if others are incompetent may be limiting in terms of
future vocational options.” Nevertheless, Dr. Center
concludes that Tate (who was employed in sales) is not
totally disabled from any occupation at this time because
she is able to maintain her own home, complies with
treatment, and there is no documentation of suicidal
ideation, homicidal ideation, or psychosis. Dr. Center
also states that the addition of Adderall to her medica-
tion regimen in September 2002 provided her “signif-
icant benefit.” 2
Dr. Center’s report is just as defective as Dr. Tasch’s
because nowhere in the report does Dr. Center connect
her conclusion that Tate is not totally disabled to some-
thing that is relevant to Tate’s ability to work. Similarly,
Dr. Center’s general conclusion that medication has
provided “significant benefit” to Tate does not prove
2
Dr. Center’s report also states that Tate has a “long history of
psychiatric difficulties” and that she “is likely to have ongoing
psychiatric mental health symptoms for an extended period
of time.” The report notes that Tate has ongoing difficulties
with hypomania, is inefficient in completing tasks, and suffers
from mood swings.
Nos. 07-1022 & 07-1116 11
anything unless the improvement is shown to be con-
nected in some rational way to her ability to work. See
Elliott v. Metropolitan Life Ins. Co., 473 F.3d 613, 620 (6th Cir.
2006) (“ ‘Getting better,’ without more, does not equal ‘able
to work.’ ”).
The Plan’s second letter to Tate informing her that its
decision to deny her benefits would remain the same
echoes Dr. Center’s non-sequitur analysis. The letter states:
It is the opinion of the reviewer that you are able to
maintain your own home and care for your ani-
mals. There is no documentation of suicidal
ideation, homicidal ideation or psychosis. You
have been compliant with Outpatient psychother-
apy and multiple medication trials. You are able to
understand and participate in the process regard-
ing disability determinations. It appears that you
have had an exacerbation of mood symptoms
following the determination regarding disability.
However, no specific measurable impairments
rendering you unable to do “any job” for which
you are qualified by reason of training, education,
and/or experience were noted.
That Tate can clean her home and care for her pets after
years of treatment and medication does not support a
conclusion that she is capable of employment unless the
Plan believes she is qualified to care for animals as a
living. That she has not contemplated killing herself or
others is even less probative of her ability to work. These
reasons are not relevant to a conclusion that Tate, a former
sales employee, is able to do a job for which she is quali-
fied.
12 Nos. 07-1022 & 07-1116
The Plan protests that it should not be required to
review vocational evidence in making disability deter-
minations. But logically, the Plan could have made a
reasoned determination that Tate was not “totally dis-
abled” only if it relied on evidence that assessed her
ability to perform a job for which she is qualified by
education, training, or experience. This means the Plan
must have made a reasonable inquiry into Tate’s medical
condition as well as her vocational skills and qualifications
for its decision denying benefits to be upheld. Quinn, 161
F.3d at 476. In so holding, we express no opinion as to
whether ERISA plan administrators as a rule must hire
vocational experts or perform a transferrable skills analy-
sis. But it is the Plan’s burden to make sure its deter-
mination—that Tate could perform a job for which she
was qualified despite her medical condition—is reached
in a manner that substantially complies with ERISA, see
Halpin, 962 F.2d 688-90. That did not happen here.
Although the record shows Dr. Center was given Tate’s
résumé and job description as part of her materials to
consider, nothing in Dr. Center’s report or the Plan’s
specific reasons for denial relates to Tate’s job qualifica-
tions. Unless the Plan provides a reasonable explanation
for its conclusion that Tate was capable of performing
another job for which she was qualified, we have no basis
to uphold the Plan’s decision. “Conclusions without
explanation do not provide the requisite reasoning and do
not allow for effective review.” Hackett, 315 F.3d at 775; see
also Halpin, 962 F.2d at 695 (rejecting plan administrator’s
denial of benefits as too conclusory to permit appellate
review where administrator did not weigh the evidence
Nos. 07-1022 & 07-1116 13
for and against a determination that a claimant is ready
to return to work).
The Plan contends that Tate bears the burden of demon-
strating through a vocational expert that she is unable to
perform any job for which she is qualified. We disagree.
Although she certainly could have provided the affidavit
of a vocational expert, there is nothing in our case law
that requires her to do so as long as she provides evi-
dence that she has an impairment that affects her ability to
work. Tate presented evidence, in the form of her physi-
cian’s report, that she was not capable of performing any
job. In his November 2003 letter to the Plan, Dr. Kayton
wrote that Tate is hypomaniac, inefficient in completing
tasks, and suffers from pronounced concentration prob-
lems, emotional volatility, episodic rages, and an inability
to handle even her activities of daily living. Dr. Kayton
reported that Tate had not been free from mood swings
since 1998, and that because of her unpredictable temper,
she had severely limited her interpersonal contacts.
Accordingly, Dr. Kayton wrote, her illness did not permit
her to work in a job commensurate with her abilities,
experience, and previous levels of employment.3
3
The Plan contends in its briefs that Tate’s medical records and
submissions contain conflicting information and therefore
Dr. Tasch and Dr. Center were justified in questioning the
objectivity of Dr. Kayton and Dr. Greenburg. Even if this were
true, the credibility of Tate’s physicians is not discussed any-
where in the record or in the reports of Dr. Tasch and Dr. Center.
Post hoc rationalizations for the denial of benefits on appeal
(continued...)
14 Nos. 07-1022 & 07-1116
Without refuting this report or the assertions con-
tained within, the Plan responded with the bare conclu-
sion that Tate could do another job. This does not suffice
under the arbitrary and capricious standard of review
because there is no reason for this conclusion. It is well
within the power of the Plan to reject Dr. Kayton’s and
Dr. Greenburg’s conclusions but it must do so with some
explanation, especially in light of the fact that Tate was
awarded disability benefits for nearly four years on the
basis of those doctors’ opinions. See Hackett, 315 F.3d at
775 (termination procedures were arbitrary and capricious
when administrator did not explain departure from
opinions of previous doctors).
For the Plan to make a reasonable determination that
Tate was able to work in an occupation for which she
was qualified despite her impairments, the Plan was
required, at minimum, to assess her qualifications and
how they comport with jobs that Tate might be able to
perform in spite of her impairments. By not performing
this assessment before determining that Tate was not
totally disabled, the Plan acted arbitrarily and capriciously.
B. Remand, not reinstatement, is the appropriate
remedy.
Having found the Plan’s determination to be arbitrary
and capricious, we turn to Tate’s cross-appeal, which
3
(...continued)
are not sufficient. Halpin, 962 F.2d at 696.
Nos. 07-1022 & 07-1116 15
raises the issue of whether remand is the proper remedy.
We review the district court’s decision for an abuse of
discretion. Halpin, 962 F.2d at 697.
Courts that find a plan administrator’s denial of benefits
to be arbitrary and capricious may either remand the
case for further proceedings or reinstate benefits. Gener-
ally, “when a court or agency fails to make adequate
findings or fails to provide an adequate reasoning, the
proper remedy in an ERISA case, as well as a conven-
tional case, is to remand for further findings or explana-
tions, unless it is ‘so clear cut that it would be unreason-
able for the plan administrator to deny the application
for benefits on any ground.’ ” Quinn, 161 F.3d at 477
(quoting Gallo v. Amoco Corp., 102 F.3d 918, 923 (7th Cir.
1996)). Here, our finding that the Plan’s determination
was arbitrary and capricious is based on the fact that
the Plan did not provide adequate reasoning for its con-
clusion, so remand is appropriate. We express no opinion
regarding the merits of Tate’s claim as the record does
not make clear either way whether Tate is “totally dis-
abled.”
Tate argues that she is entitled to reinstatement of
benefits because her claim involves the denial of benefits
for which she had initially been deemed eligible. In Hackett,
we noted a distinction “between a case dealing with a
plan administrator’s initial denial of benefits and a case
where the plan administrator terminated benefits to
which the administrator had previously determined the
claimant was entitled.” 315 F.3d at 775. Tate contends that
her case fits into the latter category because the “own
16 Nos. 07-1022 & 07-1116
occupation” period for disability benefits ended in
May 2001 and she received long-term disability benefits
for two years after that time. According to Tate, this
means she must have been approved for disability under
the “any occupation” standard.
We agree that if Tate could prove she had been entitled
to continued benefits at the time of the Plan’s decision,
reinstatement would be the proper remedy. See Schneider,
422 F.3d at 629 (“In fashioning relief for a plaintiff who
has sued to enforce her rights under ERISA, see 29 U.S.C.
§ 1132(a)(1)(B), 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 bene-
fits.” (quoting Hackett 315 F.3d at 776)). But the fact that
the Plan continued to provide Tate long-term disability
benefits after the initial twenty-four months does not
prove that the Plan ever determined she was eligible for
benefits under the “any occupation” standard that Tate
must meet for continued benefits. Although it is odd that
the Plan would continue to award benefits to Tate for
two years without holding her to the more stringent “any
occupation” standard, this fact alone does not necessarily
mean Tate was entitled to continue receiving benefits
under the terms of the plan.
Like the district court, we cannot determine on this
record whether Tate is totally disabled from any occupa-
tion. See Quinn, 161 F.3d at 478 (reversing district court’s
award of reinstatement where it was not clear claimant
was disabled under the terms of the benefits program).
Therefore, we view this situation to be closer to an initial
Nos. 07-1022 & 07-1116 17
denial of benefits for which remand is appropriate rather
than a termination of benefits for which reinstatement
is appropriate.
Because we are not reinstating Tate’s benefits, we do not
reach the issue of whether Tate is entitled to prejudg-
ment interest on the award.
C. Tate’s claim for attorney’s fees is premature.
Tate seeks attorney’s fees if we reinstate her benefits, an
argument that is mooted by our holding that Tate is not
entitled to reinstatement. Tate also argues that she
should be awarded attorney’s fees even if we affirm the
district court’s decision to remand the case. We disagree.
We review a district court’s decision to deny attorney’s
fees for an abuse of discretion. Herman v. Central States,
Southeast and Southwest Areas Pension Fund, 423 F.3d 684,
695 (7th Cir. 2005). In analyzing whether attorney’s fees
should be awarded to a “prevailing party” in an ERISA
case, a court should consider whether the losing party’s
position was justified and taken in good faith. Quinn, 161
F.3d at 478. However, we have held that a claimant who
is awarded a remand in an ERISA case generally is not a
“prevailing party” in the “truest sense of the term,” id. at
478-79. The district court first considered this question
and relied on Quinn to hold that Tate was not yet a prevail-
ing party. Then the district court found that the record did
not suggest that Tate’s benefits were terminated in bad
faith or that the Plan’s position was not substantially
justified.
18 Nos. 07-1022 & 07-1116
Tate urges us to reconsider our holding in Quinn but
cites cases that predate Quinn, see Miller v. United Welfare
Fund, 72 F.3d 1066, 1074 (2d Cir. 1995) and White v. Jacobs
Engineering Group Long Term Disability Benefit Plan, 896 F.2d
344 (9th Cir. 1990). These cases do not persuade us to
depart from Quinn. The district court considered the
proper test, and its conclusion was not an abuse of discre-
tion. Tate is not entitled to attorney’s fees at this juncture.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
9-19-08