Diaz, Hugo v. Prudential Insur Co ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3822
HUGO DIAZ,
Plaintiff-Appellant,
v.
PRUDENTIAL INS. CO. OF AMERICA,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 2702—Charles R. Norgle, Sr., Judge.
____________
ARGUED APRIL 5, 2007—DECIDED AUGUST 23, 2007
____________
Before EASTERBROOK, Chief Judge, and BAUER and
WOOD, Circuit Judges.
WOOD, Circuit Judge. This is the second time this
court has had to review a decision rejecting Hugo Diaz’s
application for benefits under his company’s group insur-
ance long-term disability plan (the “LTD Plan”). After
Prudential Insurance Company of America (“Prudential”),
the LTD Plan’s underwriter, denied Diaz’s initial applica-
tion for the benefits and two appeals of that denial, Diaz
sued Prudential under § 502(a)(1)(B) of the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. § 1132(a)(1)(B). The district court granted sum-
mary judgment to Prudential, but we reversed and re-
manded, concluding that the district court should not
2 No. 06-3822
have used the abuse-of-discretion standard in evaluating
Prudential’s decision. See Diaz v. Prudential Ins. Co. of
America, 424 F.3d 635, 640 (7th Cir. 2005) (Diaz I).
Looking at Diaz’s claim de novo, the district court once
again found that Diaz could not prevail and thus that
Prudential was entitled to summary judgment.
Our review of that judgment is de novo. We conclude
that Diaz introduced enough evidence to create a dispute
of material fact about whether he was disabled for pur-
poses of the LTD Plan. This evidence includes Diaz’s own
accounts of his pain, the observations of his physical
therapist, and the opinions of at least three different
doctors. The time has come to try this case; we reverse
and remand for that purpose.
I
As we noted in Diaz I, Diaz began working in 1998 as a
computer analyst at Bank One in Chicago. (Bank One has
since been taken over by JPMorgan Chase, but for conve-
nience we refer to it under the name it had during Diaz’s
employment.) As a Bank One employee, he participated
in a group disability insurance plan underwritten by
Prudential. The plan included long-term disability cover-
age.
In 2000, Diaz began experiencing persistent lower back
pain; he was diagnosed with degenerative disc disease and
radiculopathy. For about two years, he underwent a
series of medical treatments including lumbar epidural
steroid injections, physical therapy, and pain medication.
His condition compelled him to stop working on January
31, 2002. Four days later, on February 4, Diaz underwent
a lumbar fusion procedure with hardware implantation to
correct an annular tear at the lumbosacral joint (L5-S1).
Although postoperative examinations showed that the
No. 06-3822 3
hardware alignment was satisfactory and there were no
neurological deficits in his lower extremities, Diaz contin-
ued to report varying levels of pain in his back and legs.
His doctors could not find anything related to the opera-
tion that might have been causing this pain. After months
of ineffective physical therapy and pain medication, he
concluded that he could not return to work.
Diaz submitted a claim for benefits under the LTD Plan
on July 22, 2002, alleging that the back pain had rendered
him disabled as of February 4. He supported his applica-
tion with several doctors’ notes expressing the opinion that
his condition prevented him from sitting for more than
fifteen to twenty minutes at a stretch. Prudential denied
the claim on August 27 on the ground that his reported
inability to perform his job was not consistent with the
medical evidence. Diaz sought reconsideration of the
rejection and supported his request with additional
medical evidence, but Prudential upheld its negative
decision on January 22, 2003. After Diaz filed a second
appeal, Prudential submitted his medical documentation
to its medical consultant, Dr. Gale Brown, for review.
Although Dr. Brown did not personally examine Diaz,
she opined based on Diaz’s medical records that the
clinical and diagnostic evidence relating to Diaz’s lumbar
spine condition did not support Diaz’s reports of persistent
pain. She concluded that while Diaz had a “temporary
musculoskeletal impairment related to L5-S1 fusion from
1/2002 through 8/05/02,” subsequent to August 5, Diaz’s
condition did not prevent him from performing his job on
a full-time basis. Dr. Brown noted, however, that there
were non-physical factors that were having an adverse
impact on Diaz’s ability to engage in gainful employment,
including his anxiety over losing his job, depression, and
opioid dependency. Diaz was not seeking benefits on any
of those bases. On April 16, 2003, Prudential again upheld
its decision denying Diaz benefits.
4 No. 06-3822
Diaz filed this action in district court on April 22, 2003,
challenging Prudential’s adverse decision. On May 12,
2004, the district court granted summary judgment in
favor of Prudential, finding that Prudential’s denial of
benefits was not arbitrary or capricious. Diaz appealed,
and we reversed because the district court applied the
wrong standard of review. See Diaz I, supra. We found
that Bank One’s LTD Plan was one that merely required
the plan administrator “to make a judgment within the
confines of pre-set standards,” and thus that the proper
approach under Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101 (1989), is de novo. Diaz I, 424 F.3d at 639-40. We
remanded the case to the district court for a fresh look
from that perspective. Id. at 640.
On remand, both parties again moved for summary
judgment. After summarizing the conclusions and reason-
ing of the medical professionals who evaluated Diaz’s claim
for Prudential (none of whom had treated or examined
him), the district court found Prudential’s evidence
compelling. Echoing Dr. Brown, it stated that Diaz had
been “unable to submit reliable proof of both a continuing
disability and treatment by a doctor.” The emphasis here
must have been on the word “reliable,” because Diaz
had in fact submitted a great deal of evidence. The
court, however, was unimpressed by his evidence: “None of
the x-rays, medical reports or physical therapist notes
supported Diaz’s claim of continued back pain. Plainly
put, there is nothing that would prohibit Diaz from
performing his duties at his job at Bank One on a full time
basis beyond August 5, 2002.” The court also criticized
what it saw as the lack of expert testimony in the form of
depositions that contradicted the evidence submitted by
Prudential. It accordingly granted summary judgment
in Prudential’s favor.
No. 06-3822 5
II
Normally, we would not belabor the question of the
proper approach toward a motion for summary judgment
under FED. R. CIV. P. 56, but for a time there was some
confusion in this case about what the district court was
being asked to do. At one point, the parties filed a stipula-
tion that would have allowed the district court to conduct
a “paper trial” and make findings of fact and conclusions
of law under FED. R. CIV. P. 52. The parties also filed cross-
motions for summary judgment under Rule 56. In the
end, the court elected to dispose of the case on summary
judgment, by granting the defendant’s motion and deny-
ing plaintiff ’s. No one has made any complaint about
that method of proceeding on appeal, and so we proceed as
if the stipulation had never been made.
That means that we will review the district court’s grant
of summary judgment de novo. Atterberry v. Sherman, 453
F.3d 823, 825 (7th Cir. 2006). “Summary judgment is
appropriate if ‘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.’ ” Id. (quoting FED. R. CIV.
P. 56(c)). “When, as here, cross-motions for summary
judgment are filed, we look to the burden of proof that
each party would bear on an issue of trial; we then require
that party to go beyond the pleadings and affirmatively to
establish a genuine issue of material fact.” Santaella v.
Metropolitan Life Ins. Co., 123 F.3d 456, 461 (7th Cir.
1997). For claims seeking benefits under an ERISA plan,
we have held that “at trial the plaintiffs would bear the
burden of proving [the ERISA beneficiary’s] entitlement to
the benefits of the insurance coverage, and the defendant
[insurer] would bear the burden of establishing [the
beneficiary]’s lack of entitlement . . . .” Id.
6 No. 06-3822
The district court’s task in engaging in de novo consider-
ation of the decision of the plan administrator is not the
same as its job in reviewing administrative determinations
on the basis of the record the agency compiled under the
substantial evidence rule, as it might do in a Social
Security benefits case. See Ramsey v. Hercules Inc., 77
F.3d 199, 205 (7th Cir. 1996). Some of the confusion in this
area may be attributable to the common phrase “de novo
review” used in connection with ERISA cases. In fact, in
these cases the district courts are not reviewing anything;
they are making an independent decision about the em-
ployee’s entitlement to benefits. In the administrative
arena, the court normally will be required to defer to the
agency’s findings of fact; when de novo consideration is
appropriate in an ERISA case, in contrast, the court can
and must come to an independent decision on both the
legal and factual issues that form the basis of the claim.
What happened before the Plan administrator or ERISA
fiduciary is irrelevant. See Patton v. MFS/Sun Life
Financial Distributors, Inc., 480 F.3d 478, 485-86 (7th Cir.
2007). That means that the question before the district
court was not whether Prudential gave Diaz a full and fair
hearing or undertook a selective review of the evidence;
rather, it was the ultimate question whether Diaz was
entitled to the benefits he sought under the plan. See
Wilczynski v. Kemper Nat. Ins. Companies, 178 F.3d 933,
934-45 (7th Cir. 1999).
In construing the terms of the plan, we employ federal
common law rules of contract interpretation. See Life Ins.
Co. of North America v. Von Valtier, 116 F.3d 279, 283 (7th
Cir. 1997). Under those rules we are to “interpret the
terms of the policy in an ordinary and popular sense, as
would a person of average intelligence and experience, and
construe all plan ambiguities in favor of the insured. Plan
language may only be deemed ambiguous where it is
No. 06-3822 7
subject to more than one reasonable interpretation.”
Santaella, 123 F.3d at 461 (quotations omitted).
There is no dispute over what Bank One’s LTD Plan
requires. The LTD Plan uses two definitions for disabil-
ity—one that applies to the first 24 months, and another
for disabilities that continue beyond 24 months. This case
began as one involving only Diaz’s ability to satisfy the
former definition, which reads as follows:
You are disabled when Prudential determines that:
you are unable to perform the material and substantial
duties of your regular occupation due to your sickness
or injury; and you have 20% or more loss in your
indexed monthly earnings due to that sickness or
injury.
2001 Benefit Options Answer Book and Enrollment Kit at
30 (“Answer Book”); Long Term Disability Coverage at 10
(“LTD Coverage”). “Material and substantial duties” are
defined as “duties that: are normally required for the
performance of your occupation; and cannot reasonably be
omitted or modified . . . .” Id. In addition, “[r]egular
occupation means the occupation you are routinely per-
forming when your disability begins. Prudential will
look at your occupation as it is normally performed in-
stead of how the work tasks are performed for a specified
employer at a specific location.” Id. Finally, “[i]njury
means a bodily injury that is the direct result of an
accident and not related to any other cause. Injury which
occurs while you are under the plan will be treated as a
sickness.” Id. at 11; see also id. at 10 (“Sickness means
any disorder of your body or mind, but not an injury . . . .”).
Under the Plan, the burden is on the claimant to provide
proof of a claim. That proof must include, among other
things, “(4) [a]ppropriate documentation of the disabling
disorder[, and] (5) [t]he extent of your disability, including
restrictions and limitations preventing you from perform-
8 No. 06-3822
ing your regular occupation . . . .” LTD Coverage further
notes that Prudential “may request you send proof of
continuing disability, satisfactory to Prudential, indicating
that you are under the regular care of a doctor.” Id. at 22.
As many plans do, the Bank One LTD Plan shifts its
focus from the employee’s own job to the “inability to
perform the essential functions of any gainful occupation”
after the first 24 months have passed. Answer Book at 30;
see also LTD Coverage at 10. Diaz, who has been receiving
Social Security benefits since a favorable decision on July
24, 2003, on the ground that he is unable to engage in any
substantial gainful activity, is also seeking the longer term
benefits under the LTD Plan. (We recognize that the
Social Security Act and the LTD Plan may use slightly
different standards—the Plan speaks of “inability to
perform the essential functions of any gainful occupation,”
while 42 U.S.C. § 423(d)(1)(A) defines disability as the
“inability to engage in any substantial gainful activity
by reason of any . . . physical or mental impairment which
can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less
than 12 months.” Those differences strike us as minor.)
Just as evidence explaining an apparent inconsistency
between an award of Social Security benefits and the
ability to work for purposes of the Americans with Disabil-
ities Act is relevant, see Cleveland v. Policy Mgt. Sys.
Corp., 526 U.S. 795, 801-07 (1999), evidence pointing to
consistency between a Social Security decision and an-
other ought to be taken into account.
There is no dispute over the physical requirements of
Diaz’s job. Diaz’s own description of his job as a computer
programmer-analyst was that it was “90% sitting.” Pru-
dential used the definition of “programmer-analyst” from
the Dictionary of Occupational Titles in analyzing his job
requirements, when it denied Diaz’s second appeal:
No. 06-3822 9
Under the Group Policy, the medical documentation
surrounding Mr. Diaz’s condition and symptoms is
compared to the functions of his occupation as it is
normally performed. According to the Dictionary of
Occupational Titles, Mr. Diaz’s regular occupation is
considered sedentary. The US Department of Labor
defines sedentary work as exerting up to 10 pounds of
force occasionally and/or a negligible amount of force
frequently to lift, carry, push, pull or otherwise move
objects, including the human body. Sedentary work
involves sitting most of the time, but may involve
walking or standing for brief periods of time. Jobs are
sedentary in nature if walking and standing are
required only occasionally and all other sedentary
criteria are met.
See also “030.162-014 Programmer Analyst,” Dictionary of
Occupational Titles (4th ed. 1995), http://www.oalj.dol.gov/
libdot.htm#definitions. Given this definition and job de-
scription, Diaz needed only to submit evidence that, if
believed, would show that he could not “sit[ ] most of the
time” in order to create a material dispute under the LTD
Plan’s terms.
Diaz has not tried to paint an entirely black picture of
his health. He concedes, for example, that his surgery went
as planned and that there were no problems with the
alignment of the implanted hardware or with the fusion.
In addition, his neurological function remained intact
throughout the period in question. Prudential appears to
believe that these facts alone are enough to refute any
evidence tending to show that he is disabled. As Pruden-
tial’s consultant Dr. Brown said, “[t]he medical evidence
beyond this period does not support residual
musculoskeletal or neurological impairment that would
preclude Mr. Diaz from performing the essential duties of
his own sedentary occupation on a full-time basis, with
minor accommodation . . . .” Those facts, however, do not
10 No. 06-3822
exist in a vacuum. Prudential can prevail on summary
judgment only if Diaz failed to submit evidence to the
contrary. We turn, therefore, to the materials Diaz submit-
ted, which fall into three general categories: his own
testimony and behavior; the assessments of his condition
and treatments ordered by the physicians who treated
him; and the diagnostic tests performed by his physical
therapist.
First, the record contains a great deal of evidence about
Diaz’s subjective assessment of his pain. Diaz’s testimony
cannot be discounted simply because it is “self-serving” or
because it is not “medical” or “neurological” evidence. The
Plan refers to “sickness or injury” in the definition of
disability we quoted earlier; it then defines “sickness” as
“any disorder of your body or mind, but not an injury.”
Later, in a section of the Plan addressing how long benefits
will be paid, the Plan says that there is a 24-month cap on
disabilities that “are primarily based on self-reported
symptoms,” which are described as “manifestations of your
condition, which you tell your doctor [sic], that are not
verifiable using tests, procedures and clinical examinations
standardly accepted in the practice of medicine. Examples
of self-reported symptoms include, but are not limited to
headache, pain, fatigue, stiffness, soreness, ringing in
ears, dizziness, numbness and loss of energy.” These
provisions erase any doubt that Diaz is entitled to bene-
fits notwithstanding the fact that some of his evidence
consists of subjective reports of his pain. Whether that
evidence is the primary basis of his claim, whether his
disability was in fact verified by the kinds of tests and
procedures the Plan mentions, or whether the 24-month
limit on the duration of benefits applies here, are ques-
tions that the district court must resolve on remand.
Diaz’s testimony offers more than a long series of
complaints spoken across the breakfast table. It demon-
strates the kind of “long history of treatment” that we have
found relevant in the past in comparable circumstances:
No. 06-3822 11
What is significant is the improbability that [the
claimant] would have undergone the pain-treatment
procedures that she did, which included not only heavy
doses of strong drugs such as Vicodin, Toradol,
Demerol, and even morphine, but also the surgical
implantation in her spine of a catheter and a spinal-
cord stimulator, merely in order to strengthen the
credibility of her complaints of pain and so increase
her chances of obtaining disability benefits . . . .
Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004)
(citation omitted). Taken in the light most favorable to the
plaintiff, the evidence of Diaz’s repeated attempts to
seek treatment for his condition supports an inference
that his pain, though hard to explain by reference to
physical symptoms, was disabling.
Second, the record contains the results of six diagnostic
tests performed by Diaz’s physical therapist, Melissa
Kidder. The district court disregarded these tests because
Dr. Brown, in reviewing the file, drew different conclu-
sions. The court found that “tests administered by the
physical therapist . . . cannot be reconciled with the
clinical and diagnostic evidence such as x-rays and physi-
cal examinations.” In extreme cases, diagnostic evidence
presented in favor of one position may be ignored because
of the overwhelming opinion of witnesses with greater
specialization on the other side. See, e.g., Sperandeo v.
Lorillard Tobacco, Inc., 460 F.3d 866, 875-76 (7th Cir.
2006) (finding no material issue of fact where only one
internist thought that restrictions were necessary, while
five specialists thought not). On the record in Sperandeo,
we found the evidence supporting a finding of no disability
so overwhelming that, as Lindemann v. Mobil Oil Corp.
put it, “no reasonable jury would render a verdict for the
opposing party if the record at trial were identical to the
record compiled in the summary judgment proceeding.”
141 F.3d 290, 294 (7th Cir. 1998).
12 No. 06-3822
This case is wholly unlike Sperandeo. While Dr. Brown
may have had greater expertise than Physical Therapist
Kidder, she did not actually examine Diaz. Dr. Brown
noticed contradictions in Kidder’s assessment of Diaz’s
neurological function, noting that none of the other
physicians had said anything about the same neurological
difficulties she was recording. (It was the absence of
certain factors that created the conflict for Dr. Brown, not
direct contradictions in the notes of other doctors.) Kid-
der’s status as a physical therapist and the fact that some
of her findings were not reflected in the reports of the
other doctors goes to the weight of the evidence, however,
not whether it was admissible or tended to support Diaz’s
case.
Finally, the district court gave no weight to the views
of several other physicians on whose opinions Diaz relied.
It dismissed the notes of the surgeon who had performed
the spinal fusion and post-operative care, Dr. Howard An,
asserting that Dr. An’s “notes and letters to Bank One”
were not those of an “expert medical witness” capable of
“rebutting Prudential’s assertions.” It is unclear why the
court took this view. Dr. An noted Diaz’s back pain on
numerous occasions and at different times prescribed
various drugs designed to alleviate it, including Lortab,
Ambien, Durgesic patches, Norco, Zanaflex, Kadian, and
Neurontin. Diaz’s file also contains the observations of
other doctors: Dr. An; Dr. de la Cruz, Diaz’s personal
physician; Dr. Sandeep Amin, a pain-management special-
ist; and Dr. Jeffrey Kramer, a neurologist consulted
about the possibility of implanting a spinal-cord stimu-
lator. Such notes and letters can be sufficient to survive
summary judgment. See Patton, 480 F.3d at 486-89.
This medical evidence supports Diaz’s claim that he was
disabled by the pain. We have drawn inferences from the
fact that trained medical professionals responded to a
claimant’s call for help in the past, commenting on “the
No. 06-3822 13
improbability that [plaintiff] is a good enough actress to
fool a host of doctors and emergency-room personnel into
thinking she suffers extreme pain; and the (perhaps lesser)
improbability that this host of medical workers would
prescribe drugs and other treatment for her if they thought
she were faking her symptoms.” Carradine, 360 F.3d at
755. Although part of Diaz’s need for treatment can be
attributed to his addiction to painkillers, the treatment
ordered by Drs. An and Amin, both of whom saw Diaz
many times over the period in question, reflects their be-
lief that his pain went beyond this addiction. Treatment
included Dr. Amin’s administering epidural steroids on
October 22, November 8, November 22, and December 19,
2002, and on January 2, 2003, for the purpose of pain
relief. This was a course of treatment supported by Dr. An.
Moreover, when Dr. Kramer recommended the implanta-
tion of a spinal-cord stimulator, a procedure that Diaz
did not undertake because of the significant risks, Dr. An
did not blanch; rather, he “told the patient that that
might be a good opportunity to decrease his pain and
medication and improve his function.”
The record also contains more direct assessments of
Diaz’s condition. Both Dr. Kramer and Dr. An concluded
that the problems faced by Diaz were physiological. Dr.
Kramer’s notes on June 27, 2003, diagnosed Diaz with
“failed back syndrome.” Dr. An’s notes on September 9,
2002, and February 25, 2003, highlighted multiple differ-
ent physical sources that he believed could be causing
Diaz’s pain, including muscles, ligaments, and scar tissue.
Finally, Dr. An never stated that Diaz was fit to work; to
the contrary, he concluded on multiple occasions that
Diaz could not undertake even a sedentary occupation. On
July 22, 2002, Dr. An noted in Diaz’s benefit application
that the patient was “unable to sit more than 20 minutes
or walk > 5 Blocks,” and indicated that the following
restrictions were necessary: “No Repetitive Bending,
14 No. 06-3822
Twisting, Torque / No Sitting greater than 15 min, No Lift
> 10 lb.” He opined that Diaz could not do “sedentary”
work. Similarly, on November 22, 2002, Dr. An noted that
during an eight-hour day, Diaz could “stand and walk
(with normal breaks)” or “sit (with normal breaks)” for
“less than 2 hrs,” a length of time insufficient for full-time
work. Lastly, on February 25, 2003, Dr. An concluded,
“I believe that [Diaz’]s condition is significantly impaired
and he is not able to work at this time.” Under those
conditions, notwithstanding the fact that he could some-
times sit or sometimes stand or sometimes walk, he could
not perform either his regular duties or the duties of any
sedentary job.
In deciding that the undisputed evidence demonstrated
that Diaz was not disabled, the district court “failed to
consider the difference between a person’s being able to
engage in sporadic activities and her being able to work
eight hours a day five consecutive days of the week.”
Carradine, 360 F.3d at 755. In doing so, it ignored the
dispute of material fact about Diaz’s capacity to do the
latter. As a result, its grant of summary judgment cannot
stand.
* * *
The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings consistent with
this opinion. Circuit Rule 36 shall apply on remand.
No. 06-3822 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-23-07