Druhot v. Reliance Standard Life Insurance Company

Filing 47

MEMORANDUM Opinion and Order: Druhot's motion for entry of judgment (ECF No. 17 ) is granted, and Reliance Standard's motion for entry of judgment (ECF No. 33 ) is denied. Druhot is directed to send a proposed judgment to the court on or before October 19, 2017. Signed by the Honorable Joan B. Gottschall on 9/28/2017. Mailed notice(vcf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DENISE DRUHOT,
Plaintiff,
v.
RELIANCE STANDARD LIFE
INSURANCE COMPANY,
Defendant.

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Case No. 16-cv-2053
Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
This disability benefits case arises under the Employee Retirement Income Security Act
of 1974 (“ERISA”), 29 U.S.C § 1001 et seq. Plaintiff Denise Druhot seeks to recover benefits
under a group long-term disability (“LTD”) insurance policy underwritten and administered by
Defendant Reliance Standard Life Insurance Co. (“Reliance Standard”). The parties have filed
cross motions asking the court to conduct a trial on the papers under Federal Rule of Civil
Procedure 52(a) and enter judgment. For the reasons explained below, the court enters judgment
for Druhot.
I. STANDARD OF REVIEW
Sometimes called a bench trial, Rule 52 governs a proceeding in which the court,
rather than a jury, “find[s] the facts specially” and makes conclusions of law. Fed. R. Civ. P.
52(a)(1). A “trial on the papers” under Rule 52(a) “is well-suited to ERISA cases in which the
court reviews a closed record.” Fontaine v. Metro. Life Ins. Co., 800 F.3d 883, 885 (7th Cir.
2015) (citing Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001))
(ERISA benefits case); see also Crespo v. Unum Life Ins. Co. of Am., 294 F. Supp. 2d 980, 991–
92 (N.D. Ill. 2003) (discussing advantages of using trials on the papers rather than summary

judgment in ERISA benefits cases). Courts routinely resolve ERISA benefits cases under
Rule 52. E.g., Halley v. Aetna Life Ins. Co., 141 F. Supp. 3d 855, 858 (N.D. Ill. 2015)
(collecting exemplary cases). In these proceedings, a court can weigh the evidence and resolve
disputed factual issues based on the record properly before it. See Crespo, 294 F. Supp. 2d at
992.
Claims for benefits brought under ERISA § 502(a)(1)(B) are reviewed de novo unless
“the benefit plan gives the administrator or fiduciary discretionary authority to determine
eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989). 1 This standard “requires the Court to review the case with a
fresh eye. In fact, the Court is not technically ‘reviewing’ any decision, but rather making its
own independent determination about the merits of the dispute and the employee’s entitlement to
benefits.” Young v. Verizon’s Bell Atl. Cash Balance Plan, 667 F. Supp. 2d 850, 889 (N.D. Ill.
2009) (citing Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 643 (7th Cir. 2007)). In other
words, “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.” Diaz, 499 F.3d at 643.
II. FINDINGS OF FACT
The following facts are taken from the Administrative Record as well as the parties’
Statements of Fact. 2

1

The parties agree that the benefit plan does not include language giving the administrator or fiduciary discretionary
authority.
2
References to the Administrative Record will be cited by (AR__ ). References to the Plaintiff’s Statement of
Proposed Facts and Defendant’s Statement of Proposed Facts will be cited as (PSF ¶ __ ) and (DSF ¶ __ ).

2

Druhot worked full time as an attorney at the law firm of Brown, Hay & Stephens LLP
(“Brown Hay”) in Springfield, Illinois from December 1, 1987, to January 2, 2015. (PSF ¶ 2.)
Reliance Standard is an insurance company. (DSF ¶ 4.) Druhot received group long-term
disability insurance coverage under a policy issued to Brown Hay by Reliance Standard. (PSF ¶
3.) The policy provided for monthly disability payments so long as the participant met the
definition of “Totally Disabled” or “Total Disability”: “as a result of an Injury or Sickness,
during the Elimination Period and thereafter an Insured cannot perform the material duties of
his/her Regular Occupation.” (AR 10.) “Regular Occupation” is defined by the plan as: “the
occupation the Insured is routinely performing when Total Disability begins. The primary source
we will use to determine the Insured’s occupation is the Dictionary of Occupational Titles
published by the Department of Labor, or its replacement(s).” (AR 9.) The schedule of benefits
provided that payment at a rate of sixty percent of the insured’s income would begin following
ninety days of total disability and that benefits were payable so long as the claimant remained
disabled until the claimant reached Social Security normal retirement age. (PSF ¶ 5.) Benefits
are offset by “Other Income Benefits” such as Social Security disability insurance benefits. (PSF
¶ 6.)
Druhot left her regular occupation on or around January 2, 2015, with complaints of
recurring viral and/or bacterial infections, sinus and ear problems, headaches, and fatigue. (DSF
¶ 13.) Brown Hay notified Reliance Standard of Druhot’s claim for disability benefits on or
about January 23, 2015. (Id.) Druhot submitted an application for benefits to Reliance Standard
on February 6, 2015. (PSF ¶ 8.) The application stated that Druhot’s first symptoms were
“recurring infections, sinus + ear + headaches, extreme fatigue.” (AR 181.) The application also
3

stated that Druhot was unable to work due to “immune deficiency per Dr. Siri, recurring viral
+/or bacterial infections etc.” (Id.)
Druhot reported that she was treated for her illness by Dr. Dareen D. Siri, an
immunologist. (AR 182.) Druhot submitted an attending physician statement from Siri which
listed the primary diagnosis ICD9 code as 279.06, which corresponds to “common variable
immunodeficiency.” 3 (AR 190.) The statement listed symptoms as “recurrent infections” and
treatment with “gamma globulin infusions.” (Id.) Dr. Siri checked boxes signifying that Druhot
had not achieved maximum medical improvement and that her condition led to certain
restrictions and limitations. (AR 190–01.) Siri limited Druhot to sedentary work and occasional
light work. (Id.) Siri also noted that Druhot was experiencing severe headaches. (Id.) A
statement from Siri dated January 2, 2015, asserts: “Denise is placed on medical leave for six
weeks from today’s date. She may not return to work until medically cleared.” (PSF ¶ 10.)
Another, from February 5, 2015, states: “Denise Druhot is placed on medical leave for four
months from today’s date. She may not perform any work and must be medically cleared before
returning to work. She has a serious immune deficiency disorder for which she is beginning
treatment.” (Id. ¶ 11.)
Druhot also submitted Dr. Siri’s office records for November 2014 to February 2015.
(AR 321–45.) The records indicate that Druhot was experiencing fatigue, ear and sinus issues,
joint pain, acute sinusitis, gastritis, and cervicalgia. (PSF ¶12.) Dr. Siri began infusing Druhot
with HyQvia, an immune globulin infusion, in February 2015. (Id.) Dr. Siri also noted the
3

ICD9 is “The International Classification of Diseases, 9th Revision.” The Court may take judicial notice that the
279.06 ICD9 code stands for “common variable immunodeficiency” as the fact is not subject to reasonable dispute
because it “can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201(b)(2).

4

presence of migraine and sinus headaches at that time. (Id.) Dr. Siri’s March 25, 2015, note
indicated that Druhot was experiencing ear, nose, throat, and eye issues. (AR 491.) The note
states that Druhot had a 99.0 temperature on March 14, 2015. (Id.) The note also indicates
Druhot underwent an endoscopy and a colonoscopy which showed a hiatal hernia, diverticulitis,
and GERD. (Id.)
Reliance Standard interviewed Druhot by telephone on March 3 and 26, 2015. (DSF ¶
20.) Druhot told Reliance Standard that she was planning to travel to visit her father from
March 27–April 4, 2015. (Id.) Additionally, as part of the review of her claim, Reliance
Standard had an investigator perform surveillance on Druhot in April 2015. (PSF ¶ 16.) The
investigator reported that Druhot walked her small dog around the block. (Id.) In a declaration
submitted in this case, Druhot denies that she was the one walking the dog. 4 (Id.)

4

Defendant objects to any reference to Druhot and her husband’s declarations, arguing that they were “outside of
the documents agreed upon to form the basis for the parties’ motions for judgment.” Under de novo review, district
courts have “discretion to ‘limit the evidence to the record before the plan administrator, or . . . [to] permit the
introduction of additional evidence necessary to enable it to make an informed and independent judgment.” Estate
of Blanco v. Prudential Ins. Co. of Am., 606 F.3d 399, 401 (7th Cir. 2010) (quoting Patton v. MFS/Sun Life Fin.
Distribs., Inc., 480 F.3d 478, 490–91 (7th Cir. 2007) (alterations in original)). A court must consider four factors in
determining whether extra-record discovery should be allowed: “(1) whether the new evidence is necessary to make
an informed and independent judgment; (2) whether the parties had an opportunity to present evidence at the
administrative level; (3) whether the extra-record discovery relates to the plan terms or historical facts concerning
the claimant; (4) whether the administrator faces a conflict of interest.” Novak v. Life Ins. Co. of N. Am., 956 F.
Supp. 2d 900, 911 (N.D. Ill. 2013) (quoting Blanco, 606 F.3d at 402; Patton, 480 F.3d at 491) (internal quotations
omitted). “The most important factor . . . is whether the new evidence is necessary to make an informed and
independent judgment.” Blanco, 606 F.3d at 402. Plaintiff argues that portions of the declarations, at least, go
toward undercutting medical opinions based on the surveillance that Defendant performed, which bears on the first
factor. The second factor is unclear as Plaintiff argues that some of the facts in the affidavit were presented during
her appeal, but some could not have been presented during the administrative proceedings because she did not
realize that certain medical opinions were based on the surveillance and because one examination took place after
she filed her appeal. The third factor cuts against the inclusion of the declarations as they go towards historical facts
concerning the Plaintiff and not to plan terms. See Blanco, 606 F.3d at 402 (“Evidence is more appropriately
admitted if it concerns important plan terms rather than historical facts about the claimant.”). As to the fourth factor,
Plaintiff does not claim the administrator had a conflict of interest. To the extent that the declarations contain facts
that would undercut the persuasiveness of a medical opinion, they will be considered. Nevertheless, the court would
reach the same conclusion without the declarations.

5

Reliance Standard referred Druhot’s file to an immunologist, Dr. Anita Shvarts, who
prepared a ten-page report and a three-page addendum report. (PSF ¶ 17.) Dr. Shvarts
concluded that Druhot’s symptoms and laboratory results were consistent with common variable
immunodeficiency. (AR 508–09.) Dr. Shvarts also reported a secondary diagnosis of sinusitis.
(AR 508.) The report also stated that the medical record demonstrated that Druhot experienced
worsened fatigue from January 7, 2015, to February 4, 2015. (AR 509.) Dr. Shvarts concluded
that Druhot could work on a consistent full-time basis and that “[t]here is no documentation that
[Druhot] cannot ambulate, sit, walk, shower, drive or communicate clearly.” (AR 510.) The
report recognized that Druhot would need to be on IgG replacement therapy for the rest of her
life, but stated that Druhot’s prognosis was good. (AR 511–12.) On May 4, 2015, Dr. Shvarts
completed an addendum to her report after additional records were received. (AR 515–17.) Dr.
Shvarts held to her previous findings and conclusions after reviewing the new information. (AR
517.) She explained that while sinus and ear infections continued to occur, no fatigue was
mentioned and “there is no mention of difficulty ambulating or difficulty doing daily activities of
life.” (AR 516.)
On May 7, 2015, Reliance Standard denied Druhot’s claim for benefits and sent a letter
explaining its decision. (AR 133–38.) The letter stated that “a staff Vocational Specialist
reviewed the pertinent information in your file and determined your Regular Occupation to be
that of an Attorney, which is considered a sedentary-exertion level occupation.” (AR 134.) In
order to qualify for benefits under the policy, the letter continued, “[Druhot] must have been
continuously unable to perform the material duties of an Attorney, a sedentary occupation, at or
around January 2, 2015 and beyond April 2, 2015.” (AR 136 (emphasis in original).) The letter
6

told Druhot that she did not satisfy the Policy’s definition of Total Disability, that she was not
eligible for long-term disability benefits, and that her claim was denied. (AR 137.)
Druhot appealed the denial of her benefits on July 27, 2015. (AR 521–66.) In her appeal
letter, Druhot stated that she was falling asleep at her desk and had difficulty staying awake when
driving to and from hearings in the last few months of 2014. (AR 522.) She described her
treatment and the side effects of that treatment, which included suddenly bursting into tears,
moodiness in the form of increased irritability, increased fatigue, sporadic headache, flu-like
symptoms, and itchy, red, and burning skin around the infusion site. (Id.) Druhot also stated that
she has been in constant physical pain and fatigue due to difficulty sleeping because of the pain.
(Id.) She added that her poor gastrointestinal health impaired her ability to practice law due to
unscheduled visits to the bathroom. (AR 523.) She asserted that her symptoms “impair my
ability to focus, critically think, remember, advocate, analyze, counsel, produce and interact
effectively and/or positively with clients, courts, hearing officers, opposing attorneys, staff and
colleagues, all of which are cornerstones of legal practice.” (PSF ¶ 26.)
The appeal was supplemented by a report and letter from Dr. Siri. (PSF ¶¶ 27–29.) Dr.
Siri opined that Druhot met the applicable policy definition of total disability due to illness. (AR
524.) According to Siri, Druhot could not perform the functions of her job as an attorney. (AR
525.) Dr. Siri stated that Druhot had the following diagnoses: common variable
immunodeficiency, osteoarthritis, possible rheumatoid arthritis, severe fibromyalgia, severe
diverticulosis, irritable bowel syndrome, chronic headaches, dysphagia, recurring middle ear
infections, recurring fever, vitamin deficiency/malabsorption, hiatal hernia, bladder infections,
and chronic fatigue. (AR 526.) Druhot also provided records of her treatment at the Mayo
7

Clinic on June 23 and 25 2015. (AR 572–83.) Druhot was seen and evaluated for common
variable immunodeficiency, joint and muscle pain associated with fibromyalgia, and foot pain.
(AR 580.) She was diagnosed with symptoms of early generalized osteoarthritis. (AR 583.)
Reliance Standard asked Druhot to see Dr. Richard Katz, a physiatrist, who examined her
on September 16, 2015. (PSF ¶ 31.) Dr. Katz diagnosed Druhot with a somatization disorder,
which he defined as “a syndrome of physical symptoms that are distressing and my not be fully
explained by a known medical condition after appropriate investigation.” (AR 599.) He also
stated that the diagnosis of fibromyalgia was “misguided” and doubted Druhot’s common
variable immunodeficiency diagnosis. (AR 600–01.) He opined that Druhot could work full
time without restriction. (AR 602.) Dr. Katz also determined that Druhot could perform any
activity continuously during the work day and could work at the “very heavy lift” exertional
level. (AR 603-04.) After receiving the Mayo Clinic records, Dr. Katz wrote a supplementary
report that stated that his opinion was unchanged and that “[a]pparently somatization disorders
are not on the map for these physicians.” (AR 627–28.)
On October 23, 2015, Reliance Standard sent Druhot’s medical files to Dr. Matthew
Wilson, who works in pediatrics and allergy and immunology. (AR 635–640.) Dr. Wilson did
not examine Druhot in person but did review her medical records. (PSF ¶ 37.) Dr. Wilson stated
that the lab data did not support a diagnosis of common variable immunodeficiency but did
support a diagnosis of hypogammaglobulinemia. (AR 636.) He also referenced the surveillance
and noted that Druhot appeared to be able to walk and perform other activities associated with
walking a dog without any difficulty. (AR 637.) According to Wilson, Druhot “has no
limitations of activities of daily living.” (Id.) Wilson also opined that there were no medical
8

data or examination findings to substantiate her complaints. (AR 637–38.) He concluded that
Druhot could return to work immediately without any physical restrictions. (AR 639–40.) In a
supplementary report dated December 10, 2015, Wilson stated that additional documentation did
not change his analysis. (AR 744–48.)
On October 26, 2015, Druhot requested a copy of the Independent Medical Examination
report. (AR 641–42.) After receiving the report, Druhot submitted additional documentation
including: a CT scan of both sinuses dated February 23, 2015, showing sphenoid sinusitis;
records from Dr. Siri dated November 20, 2015, reflecting chronic sinusitis and a Eustachian
tube disorder; an MRI of Druhot’s lumbar spine dated October 1, 2015, showing degenerative
disc disease and arthritis in the lower lumbar spine; a physical therapy initial intake evaluation
dated November 16, 2015, stating that Druhot has difficulty with bending forward, with lifting
and carrying, with standing or walking for a prolonged time, and with performing activities of
daily living; a note from Dr. Edward Trudeau, a physiatrist, dated June 9, 2015, opining that
Druhot should go to the Mayo Clinic for autoimmune disorder and arthritis testing; x-rays of the
cervical spine taken April 27, 2015, showing degenerative changes and osteophytes in the
cervical spine; a record of a follow-up visit with Sriya Ranatunga dated September 14, 2015,
with an assessment of fibromyalgia; summary/progress notes from Dr. Siri dated July 1, 2015,
September 22, 2015, October 7, 2015, October 30, 2015, and November 20, 2015; and a list of
prescribed medications from January 1, 2014, to November 24, 2015. (PSF ¶ 36.)
Reliance Standard upheld the denial of benefits on January 7, 2015. (PSF ¶ 39.)
On February 20, 2015, Reliance Standard suggested that it may be in Druhot’s interests to
apply for Social Security Disability benefits. (AR 119.) Druhot was approved for Social
9

Security Disability Benefits. (PSF ¶ 41.) 5 On September 4, 2015, the Social Security
Administration (“SSA”) issued a “Disability Determination Explanation” and a “Disability
Determination and Transmittal.” (PSF ¶ 43.) The SSA determined that Druhot’s primary
impairment was fibromyalgia with a secondary impairment of a spinal disorder. (Id.) The SSA
also decided that Druhot could not return to her former occupation as an Attorney/Partner
because “the individual is incapable of sustaining a 40-hour workweek.” (SSR 266.) 6 The SSA
also stated that Druhot did not have the residual functional capacity to perform past relevant
work. (Id.) The SSA performed a quality review and issued a second Disability Determination
Explanation on October 28, 2015, wherein the reviewing doctor found Druhot’s statements “fully
credible.” (SSR 283–93.) But the SSA determined that further development was required to
properly adjudicate the claim. (SSR 294–95.) The SSA issued a new Disability Determination
Explanation and Disability Determination and Transmittal on November 24, 2015. (PSF ¶ 46.)
The new determination reached the same conclusions as the previous determination, finding that
Druhot had been disabled since January 2, 2015, and that medical improvement was not likely.
(Id.)
Druhot then sent Reliance Standard the administrative record relating to the Social
Security Claim. (PSF ¶ 41.) On February 2, 2016, Reliance Standard responded that its internal
guidelines only allowed for one appeal, which had already been provided. (AR 161.)
5

Defendant objects to the declaration of Plaintiff’s attorney and the Social Security claim administrative record as
“outside of the administrative record and not agreed upon by the parties as among the evidence the parties’ motions
were to be based on.” Neither party has submitted an agreement limiting the evidence considered, nor is it clear
than any such agreement would limit the court. As discussed above, supra 5 n.4, under de novo review, district
courts have discretion to limit the evidence to the administrative record or permit the introduction of additional
evidence. Blanco, 606 F.3d at 401. Here, consideration of the Social Security record is helpful in making an
informed and independent judgment and the parties did not have the opportunity to present the evidence at the
administrative level. The Social Security record will be considered.
6
The administrative record of the Social Security Agency will be cited as (SSR __ ).

10

III. CONCLUSIONS OF LAW
Druhot bears the burden to show by a preponderance of the evidence that she is entitled
to benefits under the Policy. See Halley, 141 F. Supp. 3d at 865–66 (citing Ruttenberg v. U.S.
Life Ins. Co., 413 F.3d 652, 663 (7th Cir. 2005)); Curtis v. Hartford Life & Accident Ins. Co., 64
F. Supp. 3d 1198, 1212 (N.D. Ill. 2014); see also Diaz, 499 F.3d at 643 (“[A]t 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 . . . .” (quoting Santaella v. Metro. Life Ins. Co., 123 F.3d 456,
461 (7th Cir. 1997) (alterations except the first in original)). To determine what Druhot must
prove, the court looks to the plan’s language. See, e.g., Frye v. Thompson Steel Co., 657 F.3d
488, 493 (7th Cir. 2011).
A. “Total Disability” Under the Plan Includes “Partial Disability”
The plan provides that the insurer “will pay a Monthly Benefit if an Insured . . . (1) Is
Totally Disabled as the result of a Sickness or Injury covered by this Policy; (2) Is under the
regular care of a Physician; . . . [and] (4) submits satisfactory proof of Total Disability . . . .”
(DSF ¶ 9; AR 17.) The plan includes following definitions:
“‘Regular Occupation’ means the occupation the Insured is
routinely performing when Total Disability begins. The primary
source we will use to determine the Insured’s occupation is the
Dictionary of Occupational Titles published by the Department of
Labor, or its replacement(s).”
....
“Sickness” means illness or disease causing Total Disability which
begins while insurance coverage is in effect for the Insured.
Sickness includes pregnancy, childbirth, miscarriage or abortion, or
any complications therefrom.
11

“Totally Disabled” and “Total Disability” mean, that as a result of
an Injury or Sickness. during the Elimination Period and thereafter
an Insured cannot perform the material duties of his/her Regular
Occupation;
(1)
“Partially Disabled” and “Partial Disability” mean that as a
result of an Injury or Sickness an Insured is capable of performing
the material duties of his/her Regular Occupation on a part-time
basis or some of the material duties on a full-time basis. An
Insured who is Partially Disabled will be considered Totally
Disabled, except during the Elimination Period; and
(2)
“Residual Disability” means being Partially Disabled
during the Elimination Period. Residual Disability will be
considered Total Disability.
(AR 9–10.)
Courts applying these definitions have agreed that “Partial Disability is equivalent to
Total Disability.” Marcin v. Reliance Standard Life Ins. Co., 861 F.3d 254, 256 (D.C. Cir.
2017); see also McKeldin v. Reliance Standard Life Ins. Co., 254 F. App’x 964, 968 (4th Cir.
2007) (per curiam, unpublished) (reading pertinent language defining “total disability” and
“partial disability” together to mean that “partial disability is sufficient to establish eligibility for
receipt of total disability benefits” but reaching different outcome based on additional language
not present in the instant plan); Karvelis v. Reliance Standard Life Ins. Co., No. Civ.A. H-033848, 2005 WL 1801943, at *17 (S.D. Tex. July 28, 2005) (same reading after elimination
period). Under these definitions, Druhot must prove by a preponderance of the evidence either
that she cannot perform one or more of the material duties of her regular occupation on a fulltime basis or that she cannot perform any of the material duties of her full-time occupation on a
part-time basis. (See AR 9.)

12

1. The “Material Duties” Of Druhot’s “Regular Occupation” as an Attorney
Reliance Standard and its doctors focus mainly on whether Druhot can perform the
relatively low physical demands of being an attorney. Like the doctors it hired to review
Druhot’s file and examine her, Reliance Standard argues before this court that Druhot’s regular
occupation was sedentary and that there is no evidence showing Druhot is incapable of
performing a sedentary-level occupation. This focuses more narrowly than the plan requires. As
just explained, the court must determine what the “material duties” of Druhot’s “regular
occupation” are.
Druhot began working at her law firm in 1987; she worked her way up to partner. (See
AR 184–85 (listing work history).) Reliance Standard determined that the Dictionary of
Occupational Titles code for Druhot was 110.107-010, “Attorney,” which the Department of
Labor describes as a “sedentary level position.” (DSF ¶ 19; see also AR 9 (definition of “regular
occupation” listing manual as primary authority).) The occupational requirements list the
necessary strength as “Sedentary. Lifting, Carrying, Pushing, Pulling 10 [lbs.] occasionally.
Mostly sitting, may involve standing or walking for brief periods of time.” (AR 217.) But the
occupational data lists such tasks as:
1. Gathers evidence in divorce, civil, criminal, and other cases to
formulate defense or to initiate legal action.
2. Conducts research, interviews clients and witnesses, and handles
other details in preparation for trial.
3. Prepares legal briefs, develops strategy, arguments, and
testimony in preparation for presentation of case.
4. Files brief with court clerk.
5. Represents client in court and before quasi-judicial or
administrative agencies of government.
6. Interprets laws, rulings, and regulations for individuals and
businesses.
(AR 216.)
13

Reliance Standard accuses Druhot of trying improperly to expand this list of material job
functions. Druhot cites a pair of ERISA benefits cases recognizing an attorney’s job demands
long hours and intensive research that is qualitatively different from the sort anyone might
conduct at home when trying to understand a problem like her own medical condition. See Lain
v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 347 (5th Cir. 2002) (holding plan administrator
relied on answer to question that “unfairly equate[d] amateur research conducted by a severely ill
individual trying to find answers about her painful and incurable sickness with the kind of daily
performance required of an attorney specializing in major sophisticated real estate and financial
transactions. Equating these disparate activities reflects plain lack of objectivity . . . .”);
Rosenthal v. Long-Term Disability of Stein, Becker & Green, P.C., No. CV-98-4246 GAF
MANX, 1999 WL 1567863, at *8 (C.D. Cal. Dec. 21, 1999) (stating, based on record evidence
relevant to beneficiary, that “[a] trial attorney, especially an associate in a litigation firm, must be
available to work for as long as necessary to meet the demands of a trial – or perhaps some other
urgent matter such as a TRO or preliminary injunction hearing. One in Rosenthal’s situation
simply cannot walk out of her office or the court when her 8 hour day ends.”). While the court
does not focus exclusively on whether Druhot worked as a trial lawyer, it also recognizes that the
practice of law encompasses a wide variety of practice areas and settings; many vary in the skills
demanded and the hours an attorney must work. See generally Nat’l Assn’ of Law Placement,
Official Guide to Legal Specialties (1st ed. 1999).
In this case, Reliance Standard had more specific information about the duties Druhot
performed. Her employer listed her “major tasks” as “court appearances, client meetings,
general document preparation and research.” (AR 167.) Boxes checked on a form submitted by
14

Druhot’s employer showed that she had to continuously make independent judgements, relate to
others, and communicate verbally and in writing. (AR 167.) Druhot’s job called upon her to
employ reasoning, math, and language. (Id.) Druhot’s employer also checked boxes signifying
that her job required occasional standing, stooping, and walking as well as continuous sitting.
(Id. (stating that 75% or more of Druhot’s time was spent at a computer).)
Druhot described her duties as follows in the claim form she submitted to the plan:
“practice law for public and private entities and individuals; including public court appearances,
meetings at public schools, hearings and conferences at public agencies (county and state),
nursing homes, K-12 public schools, numerous county courthouses; advocate for clients in all
venues.” (AR 184 (some punctuation altered and added).) As Reliance Standard cites nothing
contradicting any of this evidence, the only question left is whether Druhot has proven that it is
more likely than not that her ability to do one of more these things has been impaired.
2. Druhot is Unable to Perform Material Duties of Her Primary Occupation Due to Sickness
Records show that Druhot experienced a rash of symptoms from 2014–15, including
fatigue, ear and sinus problems, joint pain, acute sinusitis, gastritis, and cervicalgia. (See AR
321–45.) Druhot reported migraines and sinus headaches in February 2015, and Dr. Siri began
infusions of an immune globulin. (AR 340.) Despite the infusions, Druhot experienced ongoing
symptoms and a low-grade fever. (See AR 491–501.) Testing also revealed a hiatal hernia (AR
498) and severe diverticulosis (AR 501–02).
Dr. Siri put Druhot on medical leave beginning on January 2, 2015 (AR 193) for what she
described the next month as a “serious immune deficiency disorder” (Common Variable
Immunodeficiency (“CVID”)) (AR 194.) Dr. Siri put Druhot on medical leave after she made
15

increasing complaints of “severe fatigue” and “inability to concentrate at work” due to
increasingly frequent sinus infections that did not respond to antibiotics. (AR 505; see also AR
509–10 (discussing history of reports of fatigue and excessive sleeping to Dr. Siri).) The doctor
who conducted Reliance Standard’s initial file review, Dr. Shvarts, confirmed Dr. Siri’s
diagnoses of CVID and chronic sinusitis. (AR 503–08 (agreeing that symptoms were “consistent
with CVID”).
Druhot visited the Mayo Clinic on June 23 and 25, 2015, where she received a
fibromyalgia diagnosis. (AR 574–80.) “There used to be considerable skepticism that
fibromyalgia was a real disease. No more.” Kennedy v. Lilly Extended Disability Plan, 856 F.3d
1136, 1137 (7th Cir. 2017) (Posner, J.) (collecting and discussing authority); see also Hawkins v.
First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 916 (7th Cir. 2003); Sarchet v.
Chater, 78 F.3d 305, 306–07 (7th Cir. 1996). The disease affects about five million Americans
over the age of 18. Kennedy, 856 F.3d at 1137 (citing National Institute of Arthritis and
Musculoskeletal and Skin Diseases, “Questions and Answers about Fibromyalgia,” July 2014,
www.niams.nih.gov/Health_Info/Fibromyalgia/default.asp (visited May 16, 2017)). It is “a
common and chronic disorder characterized by widespread pain, diffuse tenderness, and a
number of other symptoms . . . . [F]ibromyalgia can cause significant pain and fatigue, and it
can interfere with a person’s ability to carry on daily activities.” Id. at 937 (quoting same source)
(second alteration in original). The severity of fibromyalgia varies; not every case leaves a
person completely unable to work. Hawkins, 326 F.3d at 918. The question, then, is how
Druhot’s fibromyalgia and her other conditions affect her ability to perform the material duties of
her job. See id.
16

Adding to the clear implication of putting Druhot on medical leave, Dr. Siri addressed
that question directly in her letter in support of Druhot’s appeal. Dr. Siri opined that Druhot met
the plan’s definition of total disability to a reasonable degree of medical certainty. (AR 524.)
The letter noted that Dr. Siri recommended that Druhot stop working in 2014, but Druhot wanted
to satisfy her obligations to her partners. (AR 524–25.) Dr. Siri’s July 28, 2015, letter also
explained how Druhot’s conditions prevented her from “interviewing clients, preparing case
reports, attending court hearings, [and] review[ing] technical legal documents.” (AR 525.)
Druhot also wrote a letter in support of her appeal. Consistent with Dr. Siri’s letter,
Druhot concluded her letter with a succinct summary of the effect her conditions have on her
ability to work as an attorney:
In sum, fatigue, infections, CVID, and infusion therapy,
gastrointestinal issues, and constant physical pain impair my
energy, mental clarity, reliability and availability. Fatigue,
infections, CVID and infusion therapy, gastrointestinal issues, and
constant physical pain impair my ability to focus, critically think,
remember, advocate, analyze, counsel, produce and interact
effectively and/or positively with clients, courts, hearing officers,
opposing attorneys, staff and colleagues, all of which are
cornerstones of legal practice.
(AR 523.) Consistent with her summary, notes from Dr. Katz and Dr. Wilson confirm that
Druhot described her gastrointestinal problems, due to severe diverticulosis as diagnosed by Dr.
Butnariu (AR 558), which left her unable to eat solid food for days, and included sudden bouts of
diarrhea that forced her to run to the bathroom unexpectedly. (See AR 591–92, AR 636–37.)
She recounted incidents in which she was falling asleep at her desk and others in which she
found staying awake difficult when travelling to out-of-town hearings. (AR 522.) She stated
that in November 2014, her fatigue forced her to leave a hearing, and she also stated that she
17

“lost her train of thought in the middle of addressing courts and questioning witnesses on more
than one occasion during the last few months of 2014.” (AR 522.)
In his examination report, Dr. Katz noted Druhot’s reports that her pain caused her to get
fewer than two hours of sleep each night and that she could not sit for more than ten minutes.
(AR 587.) She also reported “a great deal of difficulty concentrating.” (AR 587.)
The Seventh Circuit has made clear that “although a plan may not deny benefits solely on
the basis that the symptoms of the claimed disability are subjective, a plan may deny benefits
because a claimant has failed properly to document pain-induced functional limitations.”
Majeski v. Metro. Life Ins. Co., 590 F.3d 478, 485 (7th Cir. 2009) (citations omitted). Together,
Druhot’s letter, Dr. Siri’s analysis, the Mayo Clinic’s diagnosis, Dr. Katz’s notes (especially
about getting fewer than two hours of sleep per night), and the supporting medical records
demonstrate functional limitations: Druhot’s conditions make her unable effectively to meet with
clients, conduct research, and draft legal documents in any reasonable practice setting. (See AR
216 (tasks 2, 3, and 5).) This court finds the evidence that Reliance Standard marshals to
disprove impairment unpersuasive, largely because it does not engage with the “material duties”
of Druhot’s job. (AR 10.)
The surveillance report suffers from this defect as well. (See AR 468, 485-86.) As the
Seventh Circuit observed in a similar case about a psychological impairment, “That [Druhot] can
clean her home and care for her pets . . . 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.” Tate v.
Long Term Disability Plan for Salaried Emps. of Champion Int’l., 545 F.3d 555, 561 (7th Cir.
2008), abrogated on other grounds by Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242
18

(2010). At the risk of belaboring the point, nowhere on the list of job tasks which Reliance
Standard prefers (AR 216) does dog walking appear. So lawyers, at least for plan purposes, are
not dog walkers, and analyses of Druhot’s conditions’ effect on her ability to walk a dog and get
the mail miss the mark. Druhot has never denied that she could not walk short distances, and
that is not the basis of her disability claim. 7
Dr. Shvarts’s reports similarly conflate basic life activities with an attorney’s material
duties. After reviewing Druhot’s file, Dr. Shvarts opined that Druhot had a good prognosis
because there was no documentation showing that she “cannot ambulate, sit, walk, shower, drive,
or communicate clearly.” (AR 509 (noting also that Druhot has not been hospitalized); see also
AR 516 (reaching same conclusion after reviewing additional records, adding “difficulty doing
daily activities of life”).) Again, the “material duties” of an attorney demand more than
walking, sitting, showering, and communicating clearly. (See AR 216.) Also, Dr. Shvarts did
not have the benefit of the Mayo Clinic’s fibromyalgia diagnosis, Dr. Siri’s subsequent letter, and
Druhot’s further elaboration on the effects of her conditions in her letters and to Dr. Katz.
Dr. Katz’s report shows that he knew that Druhot worked as an attorney in general civil
practice. (AR 590.) Rather than engaging with these functional limitations, Dr. Katz examined
Druhot and diagnosed her with “somatization disorder,” i.e., “a syndrome of physical symptoms
that are distressing but may not be fully explained by a known medical condition after
appropriate investigation.” (AR 599.) He added that somatization is frequently accompanied by
depression and anxiety. (Id.) He rejected the notion that Druhot’s symptoms could be explained
7

Nor does the record the court can consider give any reason to think that this was not an isolated incident. That it
did not happen on each of the three days the investigator observed Druhot’s home suggests that it may have been.
(See PSF ¶ 16.)

19

as a reaction to the medication she was taking. (AR 600.) Lastly, Dr. Katz stated that he
believed the fibromyalgia diagnosis was “misguided,” but he did not elaborate on his reasoning.
(Id.) Dr. Katz later reviewed the records of Druhot’s visit to the Mayo Clinic. In a single
sentence of analysis, he stated that his opinion had not changed: “Apparently, somatization
disorders are not on the map for these physicians.” (AR 628.) The Mayo Clinic’s records tend to
contradict Dr. Katz’s glib speculation. They show that the bulk of the time spent with Druhot
was devoted to discussing fibromyalgia, its acceptance in the medical world, and possible
treatment. (See AR 574; see also AR 580.)
Dr. Katz’s report sets up a false choice. He leaps without real explanation from the
diagnosis of a somatic disorder to the assertion that Druhot can work. (See AR 601–02.) His
report implies a false equivalency between somatic disorders and malingering. (See AR 601.)
The Seventh Circuit reversed an administrative law judge making a Social Security disability
determination for making just such a mistake:
Pain is always subjective in the sense of being experienced in the
brain. The question whether the experience is more acute because
of a psychiatric condition is different from the question whether
the applicant is pretending to experience pain, or more pain than
she actually feels. The pain is genuine in the first, the psychiatric
case, though fabricated in the second. The cases involving
somatization recognize this distinction.
Carradine v. Barnhart, 360 F.3d 751, 754 (7th Cir. 2004) (collecting cases). Even taking Dr.
Katz’s somatization diagnosis at face value, he disagrees about whether the pain Druhot is
experiencing has a psychological or physical origin, not whether it is “genuine,” id., and he
offers no objective analysis of her limitations. See Williams v. Aetna Life Ins. Co., 509 F.3d 317,
322 (7th Cir. 2007) (discussing difference between an individual’s “entirely subjective”
20

experience of the “amount of fatigue or pain . . . experience[d] and “how much an individual’s
degree of pain or fatigue limits his functional capabilities, which can be objectively measured”).
Indeed, his report includes a chart showing that Druhot subjectively reported pain on much of her
body (AR 588), but Dr. Katz proffers nothing in the way of a functional analysis; he just makes a
different diagnosis (AR 601–02); cf. Hughes v. CUNA Mut. Long Term Disability Ins., No. 1:08–
cv–101–SEB–WGH., 2011 WL 902026, at *15 (S.D. Ind. Mar. 14, 2011) (providing example of
report discussing subjective experience of pain and comparing it with results of various
diagnostic procedures to assess effect pain had on a claimant’s ability to function). The subtext –
of Dr. Katz’s report may be that Druhot is pretending that the pain is more debilitating than it
really is, but he offers no reasoning that would allow the court to credit him. (See AR 599–602.)
Nor is he a specialist in psychology. (See AR 602); see also Kennedy, 856 F.3d at 1138
(disregarding testimony of psychologists on physiological disorder and testimony of urologist as
“irrelevant” to whether fibromyalgia impaired the plaintiff’s ability to work).
That leaves Dr. Wilson’s reports prepared after he reviewed the file. Dr. Wilson
concluded that all physical examinations showed normal findings except for her gastrointestinal
issues. (AR 636.) While he offers a somewhat convincing analysis of why he believes the CVID
diagnosis is at best borderline (AR 673) due to lack of physical complications normally
associated with CVID, he does not assail the fibromyalgia diagnosis (AR 637); see Hawkins, 326
F.3d at 916 (noting “the unavailability of objective clinical tests” to determine level of pain
caused by fibromyalgia). Like Dr. Shvarts, Dr. Wilson relies on the alleged dog-walking incident
as supporting his conclusion that her plantar fasciitis “should not pose also [sic] an issue with her
being able to work as an attorney.” (AR 637.) Nothing in his report suggests that he considered
21

“the difference between a person’s being able to engage in sporadic physical activities and her
being able to work eight [or more] hours a day five [or more] consecutive days of the week.”
Carradine, 360 F.3d at 755 (citing Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000)) (other
citations omitted). And he makes the same sort of leap as Dr. Shvarts. Dr. Wilson’s report states
that if, based on a review of a picture, Druhot “is able to perform walking and other activities
associated with walking a dog…” she has “no limitations of activities of daily living” and “can
return to work [as an attorney] immediately.” (AR 637, AR 639.) This would come as
something of a surprise to the nation’s law students, that the threshold requirement for practicing
law is based on the ability to walk a dog. More importantly, Dr. Wilson’s review does not
engage with the functional limitations Druhot reported in the medical records that he had in front
of him, such as her inability to concentrate and get more than two hours of sleep a night. (AR
587.)
Finally, the SSA’s disability determination adds weight to the conclusion that Druhot is
totally disabled. The SSA’s determination of disability is not binding on employers under
ERISA. Love v. Nat’l City Corp. Welfare Benefits Plan, 574 F.3d 392, 398 (7th Cir. 2009) (citing
Mote v. Aetna Life Ins. Co., 502 F.3d 601, 610 (7th Cir. 2007)). SSA determinations are
instructive but not determinative. Id. Social Security defines disability as the “inability to
engage in any substantial gainful activity by reason of any medically determinable 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.” 42 U.S.C. § 423(d)(1)(A).
The plan here defines “Totally Disabled” or “Total Disability” as follows: “as a result of
an Injury or Sickness, during the Elimination Period and thereafter an Insured cannot perform the
22

material duties of his/her Regular Occupation.” (AR 10.) The SSA definition of disability is
more stringent: “disability under Social Security law requires a person to be unable to perform
any occupation, whereas the Plan required occupational disability only in [Plaintiff’s] own
occupation.” Mirocha v. Metro. Life Ins. Co., 56 F. Supp. 3d 925, 935 (N.D. Ill. 2014). Reliance
Standard points out that the SSA did not have its doctors’ reports before it. Even so, its
conclusion under a more demanding standard based on Dr. Siri’s opinion, the Mayo Clinic
diagnosis, and Druhot’s medical records gives that evidence added weight here. See, e.g., White
v. Airline Pilots Ass’n, Int’l, 364 F. Supp. 2d 747, 768 (N.D. Ill. 2005) (citing La Barge, No. 00 C
0512, 2001 WL 109527 at *8, (N.D. Ill. Feb. 6, 2001), which described SSA determination as
“compelling evidence” of disability).
Though the court has discussed the evidence somewhat serially, it weighs it cumulatively.
The court finds by a preponderance of the evidence that Druhot has proven that due to a sickness,
she is unable to perform one or more of the material job duties of her primary occupation as an
attorney. She is therefore entitled to disability payments.
IV. REMEDIES
The record shows that beginning April 2, 2015, Druhot is entitled to a monthly benefit of
$9,840, which fell to $7,203 per month on July 1, 2015 when Druhot was awarded Social
Security disability benefits. (See PSF ¶¶ 7, 41.) Druhot also requests her attorney’s fees and
prejudgment interest.
Druhot and Reliance Standard cite cases applying the arbitrary and capricious standard of
review. These cases distinguish between the remedies of remand and award of benefits with an
eye toward returning the parties to the status quo. Hackett v. Xerox Corp. Long-Term Disability
23

Income Plan, 315 F.3d 771, 775–76 (7th Cir. 2003) (citing Quinn v. Blue Cross & Blue Shield
Ass’n, 161 F.3d 472 (7th Cir. 1998)). The parties agree, however that the de novo standard
applies here. Where the court looks at the question of entitlement to benefits de novo, “the
question before the district court was not whether the plan administrator gave claimant a full and
fair hearing or undertook a selective review of the evidence; rather, it was the ultimate question
of whether claimant was entitled to the benefits he sought under the plan.” Walsh v. Long Term
Disability Coverage for All Emps. Located in the U.S. of DeVry, Inc., 601 F. Supp. 2d 1035, 1043
(N.D. Ill. 2009) (quoting Diaz, 499 F.3d at 643) (brackets omitted). As the court has resolved
that ultimate question rather than found a procedural violation, returning the parties to the status
quo entails reinstating Druhot’s benefits. See White, 364 F. Supp. 2d at 767–68 (citations
omitted) (conducting trial on the papers, finding claimant was entitled to benefits, and ordering
reinstatement on arbitrary and capricious review); Saliamonas v. CNA, Inc., 127 F. Supp. 2d 997,
1001 (N.D. Ill. 2001) (determining claimant was entitled to benefits and entering summary
judgment in his favor).
The court also awards Druhot her attorney’s fees and prejudgment interest. ERISA
permits “the court in its discretion [to award] a reasonable attorney’s fee and costs of action to
either party.” 29 U.S.C. § 1132(g)(1) (West 2017). Because Druhot has prevailed, the court
asks, in its discretion, whether Reliance Standard’s “litigation position was substantially justified
and taken in good faith or whether they were out to harass” Druhot. See Kolbe & Kolbe Health
& Welfare Benefit Plan v. Med. Coll. of Wis., Inc., 657 F.3d 496, 506–507 (7th Cir. 2011) (citing
Huss v. IBM Med. & Dental Plan, 418 F. App’x 498, 512 (7th Cir. 2011)); see also Hardt v.
Reliance Standard Life Ins. Co., 560 U.S. 242, 255 (2010) (interpreting § 1132(g)(1) as follows:
24

“if the court can fairly call the outcome of the litigation some success on the merits without
conducting a lengthy inquiry into the question whether a particular party’s success was
‘substantial’ or occurred on a ‘central issue.’” (alteration and quotation omitted)); Kolbe &
Kolbe, 657 F.3d at 506 (explaining that the five-factor test and other doctrinal tests in the
Seventh Circuit “essentially ask the same question” (quoting Quinn, 161 F.3d at 478)). Under
ERISA, “there is a modest presumption that the prevailing party . . . is entitled to a fee.” Hess,
274 F.3d at 464 (citing Bowerman v. Wal–Mart Stores, Inc., 226 F.3d 574, 592 (7th Cir. 2000)).
In light of the modest presumption, the court concludes that an award of attorney’s fees is
warranted. See also see Hardt, 560 U.S. at 255–56. Reliance Standard first suggested that
Druhot apply for Social Security benefits and then refused to consider the SSA’s decision. That
smacks of bad faith, as does Reliance Standard’s reliance on several doctors who did not discuss
Druhot’s functional limitations as they related to what she does for a living and instead focused
myopically on a report that she may have once walked her dog. Had Reliance Standard applied
its criteria for disability to the reports of its own doctors, this litigation could have been avoided.
See Hess, 274 F.3d at 464 (affirming award of fees because finding that claim administrator took
a “lackadaisical approach in this case” was reasonable and litigation could have been avoided);
White, 364 F. Supp. 2d at 767–68. For the same reasons, the court awards Druhot prejudgment
interest at the prime rate. See Fritcher v. Health Care Serv. Corp., 301 F.3d 811, 819–20 (7th
Cir. 2002) (holding that award of prejudgment interest is appropriate); Gorenstein Enters., Inc. v.
Quality Care–USA, Inc., 874 F.2d 431, 436 (7th Cir. 1989) (suggesting use of prime rate to fix
prejudgment interest rate); Tassone v. United of Omaha Life Ins. Co., --- F. Supp. 3d ----, No. 15

25

C 8557, 2017 WL 3838095, at *9 (N.D. Ill. Aug. 30, 2017) (awarding interest based on same
authority).
V. CONCLUSION
For the reasons stated, Druhot’s motion for entry of judgment (ECF No. 17) is granted,
and Reliance Standard’s motion for entry of judgment (ECF No. 33) is denied. Druhot is
directed to send a proposed judgment to the court on or before October 19, 2017.

Date: September 28, 2017

/s/
Joan B. Gottschall
United States District Judge

26