Kristen Majeski v. Metro Life Insur Co ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1930
K IRSTEN M AJESKI,
Plaintiff-Appellant,
v.
M ETROPOLITAN L IFE INSURANCE C O .,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 3206—Maria G. Valdez, Magistrate Judge.
A RGUED N OVEMBER 18, 2009—D ECIDED D ECEMBER 29, 2009
Before W OOD , E VANS, and T INDER, Circuit Judges.
W OOD , Circuit Judge. Kirsten Majeski was employed
by Metropolitan Life Insurance Company (“MetLife”) and
participated in MetLife’s Short Term Disability Plan,
which is governed by the Employee Retirement Income
Security Act (“ERISA”). This appeal concerns MetLife’s
decision to reject Majeski’s claim for short-term
disability benefits. MetLife determined that Majeski had
failed to submit enough evidence to support her claim.
2 No. 09-1930
Majeski filed suit, but the district court granted summary
judgment against her. Although MetLife’s determination
is entitled to deferential review, we conclude that there
are such significant gaps in the evidence supporting its
decision that further proceedings are necessary.
I
Majeski worked for MetLife as a nurse consultant, which
required her to sit at a desk and use a computer and
telephone throughout the normal eight-hour workday. In
June 2006, after complaining of pain and numbness in
her shoulders, arms, and hands, Majeski was diagnosed
with cervical radiculitis, a disorder of the spinal nerve
roots. See S TEDMAN’S M EDICAL D ICTIONARY 1622 (8th ed.
2006). She applied for benefits from MetLife’s Short Term
Disability Plan, which defines a participant as “disabled”
when, as the result of “illness or accidental injury,” she
is “receiving appropriate care and treatment from a
doctor on a continuing basis” and “unable to earn more
than 80% of [her] pre-disability earnings at [her] own
occupation for any employer in [the] local economy.”
The plan grants discretionary authority to the plan ad-
ministrator to interpret its terms and determine a partici-
pant’s entitlement to benefits. MetLife initially approved
a temporary award of short-term disability benefits to
allow Majeski to pursue treatment, but eventually it
determined that she was not eligible for benefits beyond
August 25, 2006, because, in its view, her medical records
did not objectively establish any functional impairments
that would prevent her from continuing her work as a
nurse consultant.
No. 09-1930 3
Majeski appealed. In response to MetLife’s assertion
that she had not presented objective evidence estab-
lishing any functional impairments, she submitted newly
obtained medical evidence. David Weiss, a physiatrist (that
is, a rehabilitation specialist), completed a five-page
Cervical Spine Residual Functional Capacity Question-
naire that documented Majeski’s “significant limitations”
in repetitive reaching, handling, and fingering. Dr. Weiss
indicated that Majeski could use her hands to grasp, turn,
and twist objects for 25 percent of the workday, that she
could use her fingers for fine manipulation 100 percent of
the time, and that she could not use her arms for reaching.
Dr. Weiss also reported that Majeski could not sit in a
“competitive work situation” any longer than 45 minutes
without needing to take a break. But in another part of the
questionnaire, Dr. Weiss reported that Majeski did not
have significant limitation of motion. Majeski later ex-
plained to MetLife that Dr. Weiss had misinterpreted
the part of the questionnaire where he was asked to
document Majeski’s limitations in repetitive reaching,
handling, and fingering. Dr. Weiss amended the question-
naire simply by crossing out “100 percent” under the
column “Fingers: Fine Manipulation” and writing
instead “0 percent,” indicating that Majeski could not
use her fingers for fine manipulation at all.
In addition, Susan Hardin, a physical therapist, exam-
ined Majeski, tested her functional capabilities, and then
submitted a Functional Capacity Evaluation Summary
that documented her findings. Hardin concluded that
Majeski’s limitations on sitting and typing made it impos-
sible for her to return to her job as a nurse consultant.
4 No. 09-1930
Hardin’s conclusion was based on a Physical Work Perfor-
mance Evaluation, which consists of 36 tasks, including
a 30-minute “sitting test.” The evaluation revealed that,
although Majeski was capable of performing physical
work at the medium level of exertion, she could sit only
occasionally and could not type more than eight-and-a-
half minutes without experiencing significant pain. (In
other words, in Hardin’s view, although Majeski was able
to perform at the greater exertional level of “medium,” she
could not—perhaps unlike most people—handle a more
sedentary position.) Hardin also observed that Majeski’s
cervical spine, shoulders, wrists, and elbows were
capable of a range of motion within functional limits.
MetLife then asked Phillip Marion, an independent
physician consultant who is board-certified in physical
medicine, rehabilitation, and pain management, to
review Majeski’s medical records and evaluate whether
she had any functional limitations that would preclude
sedentary work, particularly sitting and using a tele-
phone and computer. Dr. Marion responded on March 1,
2007, that there were “minimal objective findings on
physical and neurological examination” to support a
finding of functional limitations. He added that Majeski
was “otherwise independent with activities of daily
living, ambulation, and not restricted from driving a
motor vehicle.” Although Dr. Marion acknowledged
Hardin’s finding that Majeski could perform medium-
level work, he did not address either the limitations
Hardin had identified on Majeski’s ability to sit and type
or Hardin’s conclusion that Majeski could not work as a
nurse consultant. Nor did Dr. Marion mention Dr. Weiss’s
No. 09-1930 5
questionnaire, which is not listed among the medical
records MetLife submitted to Dr. Marion. Dr. Marion
issued a second report on March 27 in which he
concluded that additional medical evidence submitted by
Majeski’s neurologist did not change his opinion.
On March 28, MetLife forwarded Dr. Marion’s reports
to Dr. Weiss and asked him to respond with comments by
April 10. MetLife also alerted Majeski’s counsel to the
deadline. Dr. Weiss responded unhelpfully on April 6
with a single sentence: “I disagree with the decision of
Dr. Marion.” On April 12, after MetLife’s deadline for
comment on Dr. Marion’s reports had passed, Majeski’s
counsel faxed a letter to MetLife seeking to introduce
deposition testimony that Dr. Marion had recently given
in an unrelated case; allegedly this testimony revealed
Dr. Marion’s predisposition to rule in favor of em-
ployers and against claimants, regardless of the evidence.
Because the deposition testimony ran more than 200
pages, the attachment did not accompany the fax but was
instead contained on a CD that Majeski’s counsel mailed
that same day. But without reviewing (and possibly before
receiving) Dr. Marion’s deposition testimony, MetLife
determined on April 18 that Majeski was not disabled.
MetLife cited Dr. Marion’s conclusion that Majeski’s
medical records neither contained objective findings nor
supported an inference of functional impairments.
Under the terms of MetLife’s plan, Majeski’s disability
benefits could be reduced by the amount of Social Security
disability benefits she was eligible to receive, whether
or not she actually applied for those benefits. Majeski
6 No. 09-1930
accordingly submitted an application to the Social
Security Administration in May 2007 and received a
favorable determination in March 2008.
Majeski sued MetLife in federal court, challenging the
denial of disability benefits under ERISA. See 29 U.S.C.
§ 1132(a)(1)(B). After the parties agreed that a magistrate
judge could handle the case, the district court granted
summary judgment against Majeski. Because MetLife’s
plan grants discretionary authority to the plan admin-
istrator, the district court ruled that it would review
MetLife’s determination under the arbitrary-and-capricious
standard. In so doing, it rejected Majeski’s argument that
Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343(2008), requires a heightened standard of review in light
of MetLife’s conflict of interest as both the plan admin-
istrator and payor of benefits. The district court also
rejected Majeski’s attempt to introduce Dr. Marion’s
deposition testimony and Majeski’s Social Security
award, neither of which was part of the administrative
record. But the district court did consider “general evi-
dence that Dr. Marion had an ongoing financial relation-
ship with MetLife,” reasoning that this must have been
known to MetLife. Even so, the district court determined
that there was no evidence that Dr. Marion was predis-
posed to rule against claimants and that it was not unrea-
sonable for MetLife to have asked him to review
Majeski’s medical records. After considering all the
medical evidence that was before MetLife, as well as
MetLife’s conflict of interest, the district court concluded
that it was reasonable for MetLife to determine that
Majeski was not disabled.
No. 09-1930 7
II
A
Majeski begins with an argument that we have
rejected: Glenn, she urges, requires a reviewing court to
apply a heightened standard of review whenever a
plan administrator is, like MetLife, also the payor of
benefits. See Black v. Long Term Disability Ins., 582 F.3d
738, 744-45 (7th Cir. 2009); Love v. Nat’l City Corp. Welfare
Benefits Plan, 574 F.3d 392, 396 n.1 (7th Cir. 2009); Leger
v. Tribune Co. Long Term Disability Benefit Plan, 557 F.3d
823, 831 (7th Cir. 2009). But see Montour v. Hartford Life &
Accident Ins. Co., 582 F.3d 933, 936 (9th Cir. 2009) (intro-
ducing “more complex application of the abuse of discre-
tion standard” in response to Glenn). Counsel has done
what is necessary to preserve this question for further
review, and so we proceed to the specifics of Majeski’s
case.
What this court is still pondering is just how to
consider a plan administrator’s conflict of interest. There
are two possible ways to read Glenn. See Marrs v. Motorola,
Inc., 577 F.3d 783, 788 (7th Cir. 2009). On the one hand,
Glenn might require a reviewing court to consider a
plan administrator’s conflict of interest in all cases, mixing
it in somehow with all other relevant factors. Marrs ac-
knowledged that this court endorsed that reading in its
early decisions applying Glenn, pointing in particular to
Jenkins v. Price Waterhouse Long Term Disability Plan, 564
F.3d 856, 861 (7th Cir. 2009). See also Raybourne v. Cigna
Life Ins. Co. of N.Y., 576 F.3d 444, 449-50 (7th Cir. 2009);
Fischer v. Liberty Life Assurance Co. of Boston, 576 F.3d 369,
375 (7th Cir. 2009); Leger, 557 F.3d at 831.
8 No. 09-1930
But Marrs expressed discomfort with a standard of
decision “in which unweighted factors mysteriously are
weighed” and instead adopted a “more directive”
reading of Glenn that focuses on the “gravity” of a plan
administrator’s conflict of interest. Marrs, 577 F.3d at 788-
89. Marrs takes the position that the gravity of the
conflict, and thus the likelihood that the conflict
influenced the plan administrator’s decision, should be
inferred from the circumstances of the case, including
the reasonableness of the procedures by which the plan
administrator decided the claim, any safeguards the
plan administrator has erected to minimize the conflict
of interest, and the terms of employment of the plan
administrator’s staff that decides benefit claims. Id. at 789.
B
Majeski next argues that, in light of Glenn and two
cases from the Fifth Circuit and the Eighth Circuit that
apparently endorse more searching review in conflict
cases, the district court should have parted ways with
this court’s precedent. In conducting this review, she
continues, the district court should have considered
evidence that was not part of the administrative record,
namely Dr. Marion’s deposition and her Social Security
award.
But Majeski’s expansive reading of Glenn loses sight of
the distinction between deferential review and de novo
consideration. Majeski rightly observes that Glenn gave
more weight to the plan administrator’s conflict of
interest because the plan administrator there had first
No. 09-1930 9
encouraged the claimant to file for Social Security
benefits, then received the bulk of those benefits, and
finally ignored the Social Security Administration’s
finding when determining whether the claimant was
disabled under the terms of the plan. 128 S. Ct. at 2352;
Ladd v. ITT Corp., 148 F.3d 753, 756 (7th Cir. 1998) (recog-
nizing significance of same sequence). But the Social
Security award in Glenn was already part of the adminis-
trative record, and no credible reading of Glenn would
require a plan administrator to reopen a closed appeal
and consider a later Social Security award simply so that
a reviewing court has a more complete record under
which to examine the plan administrator’s conflict of
interest. In short, nothing that we see in Glenn supports
Majeski’s contention that MetLife must allow her to
supplement the administrative record without limit, even
if she is offering evidence of a reviewing doctor’s bias.
Nor are we persuaded by the Fifth Circuit case Majeski
cites. Vega v. National Life Insurance Services, Inc., 188
F.3d 287, 300 (5th Cir. 1999), does allow a claimant to
supplement the administrative record and ask the plan
administrator to reconsider its determination at any
point before filing suit in federal court, but Vega is an
outlier whose reasoning does not stand on firm ground.
See Keele v. JP Morgan Chase Long Term Disability Plan, 221
F. App’x 316, 320 (5th Cir. 2007) (observing that Vega
is inconsistent with circuit precedent and poses numerous
practical problems); Anderson v. Cytec Indus., Inc., 2009 WL
911296, *7 & n.9 (E.D. La. Mar. 27, 2009) (speculating that
Vega might “offend fundamental policy”). And Sloan v.
Hartford Life & Accident Insurance Co., 475 F.3d 999, 1004-05
(8th Cir. 2007), concerns a de novo decision on the right
10 No. 09-1930
to benefits, which is a different matter altogether.
Accord Krolnik v. Prudential Ins. Co. of Am., 570 F.3d 841,
843 (7th Cir. 2009).
III
That said, it remains true that deferential review is not
a euphemism for a rubber-stamp. We find it troubling
that Dr. Marion’s report—the sole basis for MetLife’s
determination—concludes, erroneously, that Majeski did
not submit objective evidence of functional limitations.
Dr. Marion does not acknowledge, much less analyze, the
significant evidence of functional limitations that
Majeski offered. Dr. Marion notes Hardin’s conclusion
that Majeski could perform medium-level work, but he
ignores Hardin’s critical qualification that Majeski was
nevertheless incapable of typing and sitting. Dr. Marion’s
statement that Hardin’s evaluation “does not document,
nor is it reasonable to conclude from it, that the
claimant has functional limitations that precluded seden-
tary work activity requiring sitting, using a computer
and telephone” is simply not true. Hardin explicitly
says that Majeski cannot sit or type sufficiently to return
to her former job as a nurse consultant. And Dr. Marion
does not even mention Dr. Weiss’s questionnaire (nor is
it listed under the documents sent to him for review).
In our view, these omissions make Majeski’s case like
two other recent decisions in which we have found a
plan administrator’s determination arbitrary and capri-
cious. In Leger, we held that it was arbitrary and capricious
for a plan administrator to “ignore” and “dismiss out of
hand” evidence in a functional-capacity evaluation that a
No. 09-1930 11
claimant was not capable of sitting, concluding this was
an “absence of reasoning in the record.” 557 F.3d at 834-
35. And in Love, we found it arbitrary and capricious for
a plan administrator “simply [to] ignore” a treating physi-
cian’s medical conclusion and to “dismiss [other] con-
clusions without explanation.” 574 F.3d at 397-98.
We cannot square MetLife’s treatment of Hardin’s
evaluation and Dr. Weiss’s questionnaire with Leger and
Love’s insistence that procedural reasonableness is the
cornerstone of the arbitrary-and-capricious inquiry. Leger
explains that arbitrary-and-capricious review turns on
whether the plan administrator communicated “specific
reasons” for its determination to the claimant, whether
the plan administrator afforded the claimant “an op-
portunity for full and fair review,” and “whether there
is an absence of reasoning to support the plan admin-
istrator’s determination.” 557 F.3d at 832-33 (internal
quotation marks and citation omitted). By ignoring
Majeski’s key medical evidence, MetLife can hardly be
said to have afforded her an opportunity for full and fair
review, and its failure to address that evidence in its
determination surely constitutes an absence of reasoning.
Love goes further and unambiguously requires a plan
administrator to “address any reliable, contrary evidence
submitted by the claimant.” 574 F.3d at 397 (citing Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003)).
We recognize that at some point we are dealing with a
question of degree. A plan administrator need not delve
into medical evidence that is irrelevant to its primary
concern. Nor must plan administrators annotate every
paragraph of a thousand-page medical record. Closer to
12 No. 09-1930
the line, there may be circumstances in which it would
not be unreasonable if a plan administrator inad-
vertently overlooked one of several medical reports that
reached the same conclusion it had already rejected. But a
plan administrator’s procedures are not reasonable if its
determination ignores, without explanation, substantial
evidence that the claimant has submitted that addresses
what the plan itself has defined as the ultimate is-
sue—here, whether Majeski’s functional limitations
were objectively documented. See 29 C.F.R. § 2560.503-
1(g)(iii) (requiring plan administrator to describe in
adverse benefit determination “additional material or
information necessary for the claimant to perfect the
claim” and explain why).
Majeski has asked us to rule directly in her favor, but
we are not inclined to short-circuit the process estab-
lished by MetLife’s plan. When a plan administrator fails
to provide adequate reasoning for its determination, our
typical remedy is to remand to the plan administrator
for further findings or explanations. See Love, 574 F.3d at
398; Leger, 557 F.3d at 835; Tate v. Long Term Disability Plan
for Salaried Employees of Champion Int’l Corp. No. 506, 545
F.3d 555, 562-63 (7th Cir. 2008). This is not the rare case
where the record before us contains such powerfully
persuasive evidence that the only determination the
plan administrator could reasonably make is that the
claimant is disabled.
Because there will be further proceedings, we address
briefly Majeski’s remaining arguments, which we find to
be without merit. Majeski argues that it was arbitrary
and capricious for MetLife to terminate her benefits
No. 09-1930 13
without showing that her condition had improved, but
that is merely one factor to consider. See Leger, 557 F.3d
at 831-32. It is not relevant here because MetLife only
temporarily approved Majeski’s claim to allow her to
pursue treatment. Majeski also argues that MetLife unrea-
sonably attempted to “reclassify” her work status from a
sedentary-level nurse consultant to a medium-level
registered nurse. But MetLife’s decisions to terminate
Majeski’s benefits and to deny her appeal both correctly
identify her work status, as do Dr. Marion’s reports, and
so any error was harmless. Finally, Majeski argues that it
was arbitrary and capricious for MetLife to dismiss her
pain as subjective and to demand objective evidence of
how her pain limited her functional capabilities. But
although a plan may not deny benefits solely on the
basis that the symptoms of the claimed disability are
subjective, Hawkins v. First Union Corp. Long-Term Disability
Plan, 326 F.3d 914, 919 (7th Cir. 2003), a plan may deny
benefits because a claimant has failed properly to docu-
ment pain-induced functional limitations, Williams v.
Aetna Life Ins. Co., 509 F.3d 317, 323 (7th Cir. 2007).
The decision of the district court is V ACATED and the case
is R EMANDED so that the district court may return this
matter to MetLife for further proceedings consistent
with this opinion.
12-29-09