Susan Hennen v. Metropolitan Life Insurance Co , 904 F.3d 532 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3080
SUSAN HENNEN,
Plaintiff-Appellant,
v.
METROPOLITAN LIFE INSURANCE COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15-CV-9452 — Thomas M. Durkin, Judge.
____________________
ARGUED APRIL 6, 2018 — DECIDED SEPTEMBER 14, 2018
____________________
Before EASTERBROOK, RIPPLE, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. Plaintiff-appellant Susan Hennen
worked as a sales specialist for NCR Corporation from 2010
to May 2012, when she sought treatment for a back injury. As
an employee, Hennen was covered by long-term disability in-
surance under a group policy provided by defendant-appel-
lee Metropolitan Life Insurance Company (“MetLife”). When
physical therapy and surgery failed to resolve her injury,
2 No. 17-3080
Hennen applied for long-term disability benefits under the in-
surance plan.
Acting as plan administrator, MetLife agreed that Hennen
was disabled and paid benefits for two years. The plan has a
two-year limit, however, for neuromusculoskeletal disorders.
That limit is subject to several exceptions, one of which ap-
plies to cases of radiculopathy. After paying for two years,
MetLife terminated Hennen’s benefits, finding that the two-
year limit applied. Hennen believes that she is entitled to con-
tinued benefits because she has radiculopathy. She sued un-
der the Employee Retirement Income Security Act of 1974, 29
U.S.C. § 1001 et seq. (ERISA), arguing that MetLife’s determi-
nation that she did not have radiculopathy was arbitrary and
capricious. The district court granted summary judgment for
MetLife, and Hennen appeals. We reverse and remand. Met-
Life acted arbitrarily when it discounted the opinions of four
doctors who diagnosed Hennen with radiculopathy in favor
of the opinion of one physician who ultimately disagreed, but
only while recommending additional testing that MetLife de-
clined to pursue.
I. Factual & Procedural Background
A. The Employee Benefit Plan
The parties agree that from 2012 through 2014, Hennen
qualified for disability coverage under the NCR employee
benefit plan. But the plan limits coverage for certain condi-
tions to two years. As relevant here, the plan limits coverage
for any disability due to neuromusculoskeletal and soft tissue
disorders, “including, but not limited to, any disease or disor-
der of the spine or extremities and their surrounding soft tis-
sue.” This limit applies to Hennen—who was suffering from
No. 17-3080 3
spinal injury—unless she has “objective evidence” that she
suffers from one of six exceptions.
Hennen claims she has radiculopathy, one of the excep-
tions. The plan defines radiculopathy as: “Disease of the pe-
ripheral nerve roots supported by objective clinical findings
of nerve pathology.” At the end of Hennen’s initial two years
of coverage, MetLife concluded that she did not have objec-
tive evidence of radiculopathy. Hennen disputes this finding.
B. Hennen’s Medical History
Hennen has a history of lower back problems. She had her
first two back surgeries in 2003 and 2008, which included a
surgery fusing three vertebrae in her lower back. She was able
to resume her normal routine after the 2008 surgery with the
help of a prescription painkiller. Then in February 2012, Hen-
nen suffered a new back injury. She sought treatment from
Dr. Shana Margolis, a specialist in physical medicine and re-
habilitation. Hennen reported pain radiating down her legs.
Dr. Margolis diagnosed her with L3-L4 disc herniation, myo-
fascial and neuropathic pain, and bilateral lumbar radiculitis.
Dr. Margolis treated Hennen’s pain with physical therapy
and pain management techniques. 1
Still in pain months later, in May 2012 Hennen enrolled in
a month-long pain management program. Dr. Randy Calisoff
examined her and noted that she presented “with an exacer-
bation of low back pain as well as bilateral posterior leg pain
1 Spinal injuries that involve nerves can cause pain that radiates
through the parts of the body connected to the affected nerve, as well as
muscle weakness and loss of sensation. With injuries to the lower spine,
this typically involves nerves that travel through the hips, buttocks, and
legs, depending on the specific nerve that is affected.
4 No. 17-3080
running from the low back to the ankles,” and that her pain
“has remained flared with MRI revealing a new herniation”
of a spinal disc. He noted her diagnosis as L3-L4 disc herni-
ation, lumbar myofascial pain syndrome, and lumbar radicu-
litis. In the pain management program, Hennen continued
physical and occupational therapy. She also underwent relax-
ation therapy and pain psychotherapy, and she was pre-
scribed oral pain medications. In August 2012, Dr. Margolis
cleared Hennen to return to work.2
Hennen claims that the more conservative treatments did
not relieve her pain, so she sought another opinion from an
orthopedic surgeon, Dr. Frank Phillips. He recommended
surgery and operated on Hennen’s L3-L4 disc herniation on
September 24, 2012. In his operative report, Dr. Phillips noted
that “the nerves were free of compression and mobile” at the
end of the surgery. He then informed MetLife that Hennen
was under his care and required eight weeks off from work.
MetLife approved Hennen’s long-term disability benefits ef-
fective November 12, 2012 and warned her of the two-year
limit on coverage for neuromusculoskeletal disorders.
At follow-up appointments, Dr. Phillips noted that Hen-
nen was struggling to sit for any extended period of time and
complained of “bilateral pain in the buttocks and posterior
thighs to the level of the knee,” which he described as “per-
sistent radicular complaints.” Dr. Phillips ordered an MRI to
“rule out any recurrent or residual neural compression.” He
noted that if the MRI identified “no frank compression,” then
2Drs. Margolis and Calisoff appear not to have been involved further
in Hennen’s care. MetLife has not relied on these pre-surgical diagnoses
from 2012 to defend its 2014 termination of benefits for Hennen.
No. 17-3080 5
the symptoms likely represented “some residual nerve pain”
that should be treated conservatively, without surgery. Hen-
nen had the MRI on December 28, 2012, which showed no
nerve compression.
With surgery no longer an option, Hennen sought treat-
ment from Dr. Asokumar Buvanendran, an anesthesiologist
who provided ongoing pain management care. Hennen re-
ported leg weakness and pain, which she claimed was worse
than her lower back pain. Dr. Buvanendran treated Hennen’s
symptoms with a series of epidural steroid injections. He di-
agnosed her with post-laminectomy pain syndrome and lum-
bar radiculopathy. When the injections failed to improve
Hennen’s pain, Dr. Buvanendran implanted an epidural spi-
nal cord stimulator, which delivers a low-voltage electrical
current to the spinal cord to block pain sensation. The stimu-
lator provided Hennen relief for a few weeks, but then she
again reported recurrent leg weakness and tripping. After dis-
lodging the device in a fall, Hennen had multiple surgeries to
fix ongoing issues with it. 3
In early 2014, Hennen consulted another orthopedic sur-
geon, Dr. Shane Nho, about left hip pain she experienced after
a fall. An MRI revealed a partial muscle tear and problems
3 MetLife asserts that Dr. Buvanendran changed his diagnosis to only
post-laminectomy pain syndrome on February 25, 2013. This misunder-
stands and oversimplifies the record. According to the report by MetLife’s
own consulting physician, Hennen’s medical files show at least ten refer-
ences to lumbar radiculopathy as a diagnosis between January 2013 and
October 2014. See MET00229–37. These notes were made by Dr. Buvanen-
dran and Dr. Matthew Jaycox, who appears to work at the same clinic as
Dr. Buvanendran. Eight of these references to radiculopathy come after
February 25, 2013.
6 No. 17-3080
with her hip joint, but no nerve compression. Dr. Nho treated
the hip injuries with a steroid injection and then surgery. He
advised that Hennen could not work for four months follow-
ing surgery and prescribed physical therapy. Hennen began
physical therapy for her hip in June 2014, but she continued
to struggle with nerve pain radiating down her leg.
C. MetLife’s Disability Determination
With the two-year limit looming, in July 2014 MetLife con-
tacted Hennen’s doctors for information about her condition.
Dr. Buvanendran responded that Hennen was unable to work
due to post-laminectomy pain syndrome and lumbar radicu-
lopathy. Dr. Nho advised MetLife that Hennen’s hip was
structurally sound and that he deferred to Dr. Buvanendran
on her back symptoms.
MetLife contacted Hennen to explain that her medical con-
dition fell within the plan’s neuromusculoskeletal limit.
Around the same time, a nurse-consultant for MetLife re-
viewed Hennen’s file and noted a lack of current MRI or elec-
tromyography results in the file. MetLife explained to Hennen
that lumbar radiculopathy is an exception to the neuromus-
culoskeletal limitation, but that Hennen needed additional
documentation of a diagnosis. In response, Hennen had an-
other MRI of her lower spine on September 24. Dr. Buvanen-
dran did not forward the results to MetLife right away.
On October 13, 2014, MetLife wrote Hennen to reiterate
that her benefits were scheduled to end on November 11,
quoting the plan’s neuromusculoskeletal limit. MetLife ad-
vised Hennen that she could appeal this decision and, if she
did, should provide “Office visit notes to support a non-lim-
No. 17-3080 7
ited disability,” “Objective exam findings,” “Current test re-
sults (MRI, CT, EMG),” “Current restrictions and limitations,”
and “Current treatment plan.” A few days later, Dr. Buvanen-
dran sent MetLife a letter emphasizing that he diagnosed
Hennen with post-laminectomy syndrome and lumbar
radiculopathy. Dr. Buvanendran described Hennen’s contin-
ued disabling pain and limited functionality, and he listed the
history of her medical treatments. He also faxed the previous
month’s MRI to MetLife, which showed a new annular fissure
but no herniation or spinal stenosis—that is, a new tear in one
of Hennen’s spinal discs, but no nerve compression.
MetLife consulted with Dr. David Peters, a family medi-
cine physician, who reviewed the MRI and opined that it did
not show compression that would support a diagnosis of lum-
bar radiculopathy. MetLife upheld its determination that
Hennen did not qualify for the radiculopathy exception for
extended disability benefits.
D. Hennen’s Administrative Appeal
Hennen appealed MetLife’s disability determination
through its administrative review process. Through counsel,
she submitted a letter challenging MetLife’s conclusion that
her medical records did not document radiculopathy or neu-
rological deficits. She also submitted the results of an electro-
myogram (EMG) by Dr. Joseph Kipta, a certified neurologist
and clinical neurophysiology fellow, on June 8, 2015. An EMG
is a diagnostic procedure that can reveal nerve dysfunction
and problems with the nerve-muscle connection. Dr. Kipta
recorded some nerve-related abnormalities on the EMG and
concluded that it confirmed radiculopathy in four nerve roots,
though he also wrote that he could not rule out a different
8 No. 17-3080
nerve disorder. Dr. Kipta also conducted a physical examina-
tion, which revealed that Hennen had normal strength re-
flexes in her legs but diminished nerve sensation. Dr. Kipta
concluded that the EMG and nerve sensation abnormalities
supported a diagnosis of radiculopathy. Dr. Rabia Malik, a
board-certified neurologist and neurophysiologist and assis-
tant professor of neurology, supervised Dr. Kipta’s EMG and
agreed with his findings.
MetLife’s medical director, Dr. Dupe Adewumni, re-
viewed Hennen’s appeal. Dr. Adewumni agreed with Dr.
Kipta and Dr. Malik that the EMG supported a diagnosis of
lumbar radiculopathy. He also reasoned that although the
EMG was not conducted until June 2015, it was reasonable to
conclude that Hennen had radiculopathy on November 11,
the end of the initial two-year coverage period.
Concluding that Hennen satisfied the radiculopathy ex-
ception, MetLife turned to assessing her functionality to de-
termine whether her condition made her disabled under the
plan. MetLife consulted with Dr. Neil McPhee—whose exper-
tise is physical medicine, rehabilitation, and pain medicine—
to assess her functionality. MetLife asked him two questions.
The first was whether Hennen’s medical file supported func-
tional limitations due to a physical condition as of November
12, 2014, and if so what those functional limitations were. The
second question was whether clinical evidence supported
limitations or side effects due to medications.
Despite the limited scope of these questions, Dr. McPhee
addressed and disagreed with the finding that Hennen had
radiculopathy. He opined that the June 2015 EMG “was neg-
ative for active radiculopathy with no abnormal spontaneous
No. 17-3080 9
or insertional activity recorded in any of the muscles exam-
ined.” He criticized Dr. Kipta’s and Dr. Malik’s findings and
wrote that Dr. Kipta “should have performed needle exami-
nation in corresponding right lower extremity muscles . . . be-
fore coming to a conclusion of polyradiculopathies involving
four nerve roots,” which Dr. McPhee found unlikely because
the MRI did not reveal ongoing compression of any nerves.
Dr. McPhee also criticized Hennen’s self-reported pain levels
as implausible and inconsistent. He found her doctor’s notes
on muscle weakness inconsistent, too. Dr. McPhee then an-
swered the questions MetLife had asked. He found that Hen-
nen’s physical condition—which he summarized as
“longstanding chronic narcotic dependent pain,” surgical his-
tory of spinal fusions, and recent annular fissure—limited her
ability to work.
MetLife reviewed Dr. McPhee’s report and relied on his
assessment of the EMG to reject medical director Dr.
Adewumni’s conclusion and to decide that Hennen did not
have radiculopathy that would avoid the two-year limit on
benefits. Through counsel, Hennen submitted a formal re-
sponse challenging Dr. McPhee’s conclusion. Hennen as-
serted that the June 2015 EMG confirmed radiculopathy, that
Dr. McPhee’s criticisms of the EMG were unsupported, and
that Hennen’s ongoing disability entitled her to benefits un-
der the policy’s terms. Dr. Buvanendran responded that the
“EMG study results prove, without any doubt, that the pa-
tient suffers from radiculopathy.” He also disagreed with Dr.
McPhee’s opinion that Hennen’s self-reported pain levels
were inconsistent or implausible, explaining that different ac-
tivities and treatments caused her pain to vary from day to
day.
10 No. 17-3080
In response to this challenge to his opinion, Dr. McPhee
prepared an addendum in response. He said he continued to
believe that Hennen’s EMG and MRI did not show radicu-
lopathy, but also clarified:
it is still my opinion that additional electrodiag-
nostic testing would be helpful. Similarly, con-
sideration should be given to an independent
medical examination by a physical medicine
and rehabilitation specialist or neurologist
whose training and practice includes electromy-
ography which can be used as an extension of
the clinical examination if needed to further as-
sess the issue of possible radiculopathy.
Dr. McPhee concluded that, at most, Hennen “may have lum-
bar radiculitis with a past history of nerve compression prior
to corrective surgery rather than lumbar radiculopathy based
on clear cut examination findings, imaging, and/or electrodi-
agnostic findings.”
MetLife did not order an independent medical examina-
tion or additional electrodiagnostic testing, as Dr. McPhee
recommended. Nor did MetLife explain why additional ob-
servation or testing was unnecessary to resolve Hennen’s ap-
peal. Instead, the next day, MetLife upheld its decision that
the two-year neuromusculoskeletal limit applied and that
Hennen did not satisfy the exception for radiculopathy sup-
ported by objective evidence.
E. This Lawsuit
Hennen sued MetLife in the Northern District of Illinois,
seeking ERISA plan benefits under 29 U.S.C. § 1132(a)(1)(B).
No. 17-3080 11
Hennen and MetLife agreed to limit discovery to the admin-
istrative record and to exchange cross-motions for summary
judgment. The district court granted summary judgment for
MetLife, reasoning that MetLife reasonably interpreted the
plan to require proof of “active radiculopathy” in November
2014 and that Hennen had failed to offer evidence of active
radiculopathy at that time. The court also found that MetLife
had reasonably decided to credit Dr. McPhee’s opinion over
the opinions of the other doctors. The district court entered
judgment in favor of MetLife.
II. Analysis
A. Standard of Review
We review de novo the district court’s grant of summary
judgment. Tompkins v. Central Laborers’ Pension Fund, 712 F.3d
995, 999 (7th Cir. 2013), citing Edwards v. Briggs & Stratton Ret.
Plan, 639 F.3d 355, 359 (7th Cir. 2011). Where, as here, the plan
grants the administrator discretionary authority to determine
benefits, we review the administrator’s decision under the ar-
bitrary-and-capricious standard. Id., citing Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). This standard is
deferential but “ not a rubber stamp,” and “we will not up-
hold a termination when there is an absence of reasoning in
the record to support it.” Holmstrom v. Metropolitan Life Ins.
Co., 615 F.3d 758, 766 (7th Cir. 2010), quoting Hackett v. Xerox
Corp. Long-Term Disability Income Plan, 315 F.3d 771, 774–75
(7th Cir. 2003).
We will uphold the administrator’s decision “as long as (1)
it is possible to offer a reasoned explanation, based on the ev-
idence, for a particular outcome, (2) the decision is based on a
reasonable explanation of relevant plan documents, or (3) the
12 No. 17-3080
administrator has based its decision on a consideration of the
relevant factors that encompass the important aspects of the
problem.” Tompkins, 712 F.3d at 999, quoting Hess v. Hartford
Life & Accident Ins. Co., 274 F.3d 456 (7th Cir. 2001). “In con-
ducting this review, we remain cognizant of the conflict of in-
terest that exists when the administrator has both the discre-
tionary authority to determine eligibility for benefits and the
obligation to pay benefits when due.” Jenkins v. Price Water-
house Long Term Disability Plan, 564 F.3d 856, 861 (7th Cir.
2009), citing Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 108
(2008). That is the situation here, and the conflict of interest is
“weighed as a ‘factor in determining whether there is an abuse
of discretion.’” Glenn, 554 U.S. at 115, quoting Firestone, 489
U.S. at 115.
B. Disability Determination
Hennen has shown that MetLife’s decision to terminate
her benefits was arbitrary and capricious. MetLife acted arbi-
trarily when it credited Dr. McPhee’s opinion over the opin-
ions of four other doctors, including Hennen’s treating physi-
cian, two neurologists with clinical training in electrodiagnos-
tic testing, and MetLife’s own medical director. The arbitrary
character is highlighted by MetLife’s choice not to follow Dr.
McPhee’s ultimate recommendation, when his opinion was
challenged, to order an independent medical evaluation and
additional electrodiagnostic testing. For these reasons, we
agree with Hennen that MetLife acted arbitrarily and that a
remand to MetLife is necessary.
MetLife terminated Hennen’s benefits because it found
that she lacked “objective evidence” of active radiculopathy.
To reach this conclusion, MetLife relied on Dr. McPhee’s
No. 17-3080 13
opinion based on his review of Hennen’s files without exam-
ining her. He concluded that Hennen’s EMG was “negative
for active radiculopathy.”
Ordinarily, a plan administrator is free to choose among
different medical opinions so long as the administrator pro-
vides a rational explanation that has support in the record.
Becker v. Chrysler LLC Health Care Benefits Plan, 691 F.3d 879,
889 (7th Cir. 2012); see also Black & Decker Disability Plan v.
Nord, 538 U.S. 822, 831 (2003). Also, under ERISA there is no
presumption against file-reviewing physicians or in favor of
examining physicians. Nord, 538 U.S. at 831 (finding no
“heightened burden of explanation on administrators when
they reject a treating physician’s opinion”); Leger v. Tribune
Co. Long Term Disability Ben. Plan, 557 F.3d 823, 832 (7th Cir.
2009) (rejecting presumption against file-reviewing doctors).
The fact that MetLife credited a file-reviewing physician over
competing opinions does not itself make MetLife’s decision
arbitrary.
That said, MetLife engaged in arbitrary decision-making
in this case. To start, every physician who examined Hennen
after her 2012 spine operation concluded that she had radicu-
lopathy: Dr. Buvanendran, her treating physician; Dr. Kipta,
who performed the EMG; and Dr. Malik, who oversaw the
EMG. Doctors Margolis and Calisoff also recorded nerve-re-
lated symptoms and diagnosed Hennen with radiculitis
(meaning inflammation of the nerve roots) before Hennen’s
2012 surgery to fix a herniated disc. Dr. Adewumni, MetLife’s
medical director, reviewed Hennen’s file and concluded that
she had objective evidence of radiculopathy.
Those doctors’ opinions had substantial medical support.
Hennen’s medical file contains at least five doctors’ clinical
14 No. 17-3080
observations—from Drs. Margolis, Calisoff, Buvanendran,
Kipta, and Malik—of muscle weakness and sensory loss, two
symptoms of nerve root damage. Those observations both
pre-date and post-date Hennen’s 2012 surgery to relieve
nerve compression. In addition, the EMG showed several ab-
normalities that Dr. Kipta, Dr. Malik, Dr. Buvanendran, and
Dr. Adewumni thought were consistent with radiculopathy.
Dr. McPhee was the only doctor who believed that the abnor-
malities were too few to show radiculopathy. (Dr. Peters
agreed with Dr. McPhee that a 2014 MRI did not show radicu-
lopathy, but he did not examine Hennen or consider evidence
beyond the MRI itself.)
Faced with these various diagnoses of radiculopathy, Met-
Life chose to credit Dr. McPhee’s opinion that Hennen did not
have objective evidence of radiculopathy. But MetLife never
asked Dr. McPhee to diagnose Hennen or to make that find-
ing. In fact, MetLife referred Hennen’s case file to Dr. McPhee
after its own medical director, Dr. Adewumni, concluded that
she actually met the plan’s radiculopathy exception. Once Dr.
Adewumni made that decision, MetLife asked Dr. McPhee
only to assess Hennen’s functional limitations given her phys-
ical condition and any side effects from medication. Dr.
McPhee took it upon himself to assert that Hennen did not
have radiculopathy—or at least, not objective evidence of it—
at all.
It’s not just that all the examining doctors disagreed with
Dr. McPhee on the key issue. Another indication of arbitrary
decision-making was MetLife’s failure to heed Dr. McPhee’s
recommendation to seek more electrodiagnostic testing and
an independent medical evaluation. When Hennen and Dr.
Buvanendran challenged his opinion, Dr. McPhee responded
No. 17-3080 15
“that additional electrodiagnostic testing would be helpful”
and that “consideration should be given to an independent
medical examination” to “further assess the issue of possible
radiculopathy.”
MetLife chose not to follow up on Dr. McPhee’s advice.
Instead, MetLife treated his original opinion as definitive and
immediately sent Hennen a letter affirming the denial of her
benefits. The letter asserted that MetLife found Dr. McPhee’s
opinion “more compelling” than other doctors’. MetLife did
not address Dr. McPhee’s recommendation for additional
testing and examination to settle the dispute between his view
and the views of all the doctors who had examined her. “Met-
Life’s reliance on the opinions of its reviewing doctor[] here is
all the more arbitrary in light of the fact that it ignored the key
final recommendation” of that doctor for further testing to re-
solve the dispute more reliably. Holmstrom, 615 F.3d at 775.
Together, these facts show that MetLife arbitrarily and ca-
priciously terminated Hennen’s benefits. As a fiduciary, Met-
Life owed Hennen a duty to execute faithfully the terms of the
plan and “to see that those entitled to benefits receive them.”
Gaither v. Aetna Life Ins. Co., 394 F.3d 792, 807–08 (10th Cir.
2004); see also Tompkins, 712 F.3d at 1001 (“[A] benefits deter-
mination by a plan administrator is a fiduciary act, one in
which the administrator owes a special duty of loyalty to the
plan beneficiaries.”). Here, MetLife took an extra step for its
own benefit when it referred Hennen’s file to Dr. McPhee for
review. But when Dr. McPhee recommended that MetLife
take an additional step for Hennen’s benefit—to confirm
whether his lone opinion that she did not suffer from radicu-
lopathy was accurate—MetLife declined to take that step.
That was arbitrary and capricious.
16 No. 17-3080
Hennen raises two more points that concern us and that
need to be addressed on remand. First, Hennen argues that
MetLife unreasonably interpreted the radiculopathy excep-
tion to require ongoing compression of a nerve root when that
is only one potential cause of radiculopathy. As Hennen
points out, the plan does not define radiculopathy as nerve
root disorders resulting from ongoing compression. And at
oral argument, MetLife agreed that nerves can remain dam-
aged after compression is relieved by surgery. 4
Second, Hennen argues that neither MRIs nor EMGs are
conclusive for radiculopathy. Hennen cites articles saying, for
example, that “radiculopathies may occur without structural
findings on MRI, and likewise, without EMG findings.” Tim-
othy Dillingham, How to Evaluate Patients with Suspected
Radiculopathy, AANEM Basics with the Experts, 9 (2013). Met-
Life does not point us toward any medical opinions to the
contrary. MetLife responds only that it reasonably concluded
that the MRI did not confirm radiculopathy, that the causes of
inflammation to nerve roots are unclear, and that EMGs are
rarely falsely positive for radiculopathy.
MRI and EMG findings could be relevant—even highly
relevant—in diagnosing radiculopathy, but MetLife’s unper-
suasive responses in this appeal are troubling. Although it is
reasonable for MetLife to require objective support for a diag-
nosis of radiculopathy, it would be unreasonable to discount
clinical observations of Hennen’s treating physicians in favor
4Hennen also argues that she has objective evidence of radiculitis,
which is a form of non-compressive radiculopathy. Dr. Margolis and Dr.
Calisoff diagnosed Hennen with lumbar radiculitis in 2012 after reviewing
the MRI that showed an L3-L4 disc herniation. On this record, we cannot
determine the strength of Hennen’s argument.
No. 17-3080 17
of testing that is inconclusive for the condition. This issue
needs further attention on remand.
As we have often noted, diseases like radiculopathy pre-
sent problems for insurers and insured alike because they in-
volve pain that can be difficult to confirm through objective
evidence. See Holmstrom, 615 F.3d at 769. Hennen has consist-
ently reported radiating, debilitating pain that sounds like it
is caused by nerve-root injury. She has had three surgeries to
address spinal problems and has surgically fused vertebrae
from the S1 level up to the L3 level. Her most recent MRI in-
dicated more spinal degeneration at the L2-L3 disc, though it
did not reveal compression that would affect a nerve at that
level. She was entitled to continued long-term disability ben-
efits if she can show that her pain was real and was caused by
diseased nerve roots, which is difficult to do.
Hennen’s reported pain, of course, is subjective rather
than objective evidence. MetLife is “understandably con-
cerned about the possibility of malingering and exaggera-
tion.” Holmstrom, 615 F.3d at 775. MetLife must also distin-
guish between legitimate neuromusculoskeletal disorders,
which can be difficult to diagnose, and drug addiction and
drug-seeking behaviors. Id.
Dr. McPhee does not accuse Hennen outright of feigning
pain, but he suggests that her pain is implausible because it
has varied in severity and her recorded vital signs were incon-
sistent with the severity of the pain she reported. These could
turn out to be valid critiques, but critical facts prevent us from
upholding MetLife’s decision based on this line of Dr.
McPhee’s reasoning. Dr. McPhee never examined Hennen, so
he was not in the position to determine whether she was re-
18 No. 17-3080
porting her pain reliably, exaggerating, or a mix of both. Per-
haps recognizing the shortcomings of a file review, Dr.
McPhee pointed out the inconsistencies and recommended an
independent medical examination to address them. Without
explanation, MetLife never followed up on that recommenda-
tion but just terminated her benefits. As we said above, this
was an arbitrary abuse of MetLife’s discretion and a violation
of the fiduciary duty it owed Hennen as a plan beneficiary.
See Tompkins, 712 F.3d at 1001, quoting Raybourne v. Cigna Life
Ins. Co. of N.Y., 700 F.3d 1076, 1081–82 (7th Cir. 2012); see also
Gaither, 394 F.3d at 807–808 (“While a fiduciary has a duty to
protect the plan’s assets against spurious claims, it also has a
duty to see that those entitled to benefits receive them.”).
C. Remedy
“In a case where the plan administrator did not afford ad-
equate procedures in its initial denial of benefits, the appro-
priate remedy respecting the status quo and correcting for the
defective procedures is to provide the claimant with the pro-
cedures that she sought in the first place.” Hackett, 315 F.3d at
776, citing Wolfe v. J.C. Penney Co., Inc., 710 F.2d 388, 394 (7th
Cir. 1983). The fact that MetLife acted arbitrarily “does not
mean that the claimant is automatically entitled to benefits.”
Id. A remand to MetLife is necessary here so that it can reas-
sess Hennen’s claim consistent with this opinion. Also, Met-
Life has not yet determined Hennen’s degree of disability.
That determination will be necessary if on remand MetLife
finds that Hennen has satisfied the radiculopathy exception
to the neuromusculoskeletal limit.
REVERSED and REMANDED.
No. 17-3080 19
EASTERBROOK, Circuit Judge, dissenting. MetLife’s decision
must stand unless arbitrary and capricious. That’s an excep-
tionally difficult standard for any plaintiff to meet—and im-
possible when the plan’s decision has the reasoned support of
a physician. My colleagues’ contrary conclusion boils down
to the view that the medical majority should rule. They be-
lieve that more physicians found radiculopathy (which
would qualify Hennen for long-term benefits) than found
radiculitis (which would not). A welfare-benefit plan might
adopt a majority-rules position, but this plan did not. As long
as a decision has rational support in the record, it must stand.
Becker v. Chrysler LLC Health Care Benefits Plan, 691 F.3d 879,
885 (7th Cir. 2012); Pokratz v. Jones Dairy Farm, 771 F.2d 206,
208–09 (7th Cir. 1985). Dr. McPhee’s conclusion cannot be de-
scribed as irrational (nor do my colleagues so describe it).
That requires decision for MetLife.
This case is nothing like Holmstrom v. Metropolitan Life In-
surance Co., 615 F.3d 758 (7th Cir. 2010). The primary physi-
cian who found Holmstrom not disabled retracted that opin-
ion when presented with additional evidence, but the plan
adhered to its decision even though the rug had been pulled
out from under it. Dr. McPhee, by contrast, did not retract his
analysis when confronted with a challenge. Instead he reaf-
firmed it. That’s the opposite of what happened in Holmstrom.
My colleagues emphasize that, while adhering to his view,
Dr. McPhee also recommended additional tests. But they
don’t explain why this required MetLife to conduct them. A
plan’s language might require more testing whenever a phy-
sician so recommends, but this plan does not. That leaves
MetLife with discretion. Recommendations of additional test-
ing are common in the medical profession, often (and perhaps
20 No. 17-3080
here) just to protect a decision from criticism. Defensive med-
icine is a tendency often decried as needlessly driving up the
cost of medical care. Sooner or later the marginal value of test-
ing is negative: the additional information is worth less than
the cost. Hennen had been tested over and over by quite a few
physicians. I can’t see why it was irrational for MetLife to call
a halt, and again my colleagues do not describe this as an ir-
rational decision. Indeed, Hennen herself may have seen that
there was little point in more tests; after all, she could have
had them on her own initiative but chose not to do so. Met-
Life’s conclusion that enough is enough must be respected.
The majority portrays Dr. McPhee as an outlier in finding
the absence of radiculopathy, yet Drs. Margolis and Calisoff
joined Dr. McPhee in diagnosing Hennen with radiculitis ra-
ther than radiculopathy. The majority’s assertion that “Dr.
McPhee was the only doctor who believed that the abnormal-
ities were too few to show radiculopathy” (slip op. at 14) sits
uncomfortably beside its acknowledgment that Dr. Peters
reached the same conclusion.
My colleagues implicitly assume that personal examina-
tion enables a physician to separate radiculitis from radicu-
lopathy, but they do not cite any medical support for the view
that a hands-on examination is necessary or even helpful. As
far as I can see a diagnosis depends on an accurate interpreta-
tion of tests plus checks for the presence of diagnostic clues
that are recorded in examining physicians’ notes. Dr. McPhee
delivered a 36-page report explaining why Hennen’s medical
record does not support a finding of radiculopathy; this re-
port critiques the approach of physicians who concluded oth-
No. 17-3080 21
erwise. ERISA does not authorize the federal judiciary to sub-
stitute its medical judgment for the one accepted by the plan’s
administrator.
Given that Drs. McPhee, Margolis, and Calisoff all found
that Hennen suffers from radiculitis rather than radiculopa-
thy, this should have been an easy case.