HOLZMEYER v. WALGREEN INCOME PROTECTION PLAN FOR PHARMACISTS AND REGISTERED NURSES
ORDER granting Plaintiff's 27 Motion for Summary Judgment and denying Defendant's 29 Cross Motion for Summary Judgment. We REMAND the matter for new consideration consistent with this opinion. Signed by Judge Sarah Evans Barker on 9/4/2014. (CBU)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
WALGREEN INCOME PROTECTION
PLAN FOR PHARMACISTS AND
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This cause is before the Court on the parties’ cross motions for summary judgment on
Plaintiff’s suit under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §
1132(a)(1)(B), for judicial review of the denial of long-term disability benefits. For the reasons
set forth below, Plaintiff’s motion for summary judgment [Docket No. 27] is GRANTED, and
Defendant Walgreen Income Protection Plan’s motion for summary judgment [Docket No. 29] is
A. Holzmeyer’s treatment history
Plaintiff Michael Holzmeyer is a resident of Indiana and a former employee of Walgreen,
Inc. (“Walgreens”). Am. Comp. ¶ 2. Holzmeyer is a doctor of pharmacy and a licensed
pharmacist, who from 2003 to 2009 worked for Walgreens as a “retail pharmacy manager.” R.
369. 1 In September 2009, Holzmeyer began working for Walgreens as a “home pharmacist,” a
position in which he reviewed the filling of orders and prescriptions by the company’s retail
pharmacists from his home via computer. Docket No. 28 at 2. Holzmeyer was enrolled in the
Walgreen Income Protection Plan for Pharmacists and Registered Nurses (“Plan”), a self-funded
employee benefits plan under ERISA, whose claim administrator is Sedgwick Claims
Management Services, Inc. (“Sedgwick”). Pl.’s Ex. 2 at 22. 2
The Plan provides both short-term and long-term disability benefits for its enrollees, and
it defines long-term “disability” as follows:
For the long-term disability period, “disabled” or “disability” means that, due to
sickness, pregnancy, or accidental injury, you are prevented from performing one
or more of the essential duties of your own occupation and are receiving
appropriate care and treatment from a doctor on a continuing basis; and
For the first 18 months of long-term disability, you are unable to earn more than
80% of your pre-disability earnings or indexed pre-disability earnings at your own
occupation for any employer in your local economy;
Following that 18 month period, you are unable to earn more than 60% of your
indexed pre-disability earnings from any employer in your local economy at any
gainful occupation for which you are reasonably qualified, taking into account
your training education, experience and pre-disability earnings.
Pl.’s Ex. 2 at 8. The Plan further defines an enrollee’s “own occupation” as “the activity that you
regularly perform and that serves as your source of income. It is not limited to the specific
position you hold or held with Walgreens. It may be a similar activity that could be performed
with Walgreens or any other employer.” Id. at 9.
Holzmeyer has a lengthy history of back problems, stemming originally from an
automobile accident in December 1986 in which he fractured his spine and underwent fusion
The administrative record (which we will abbreviate as “R.”) in this case can be found at Docket No. 30, where it
has been submitted by Defendant, broken into 24 parts.
The Plan text may be found at Docket No. 28, as Plaintiff’s Exhibit 2.
surgery. 3 Docket No. 28 at 8 (citing R. 147, 149). In 2009, while living in Florida, he began to
experience serious back pain and sought treatment at Tampa Bay Orthopaedic specialists. In a
July 9, 2009 visit with Dr. Howard Sharf, Holzmeyer reported back pain, deep vein thrombosis
in his left leg, and foot pain; Dr. Sharf noted that Holzmeyer had an abnormal gait and displayed
tenderness in his spinal area. He conducted imaging which showed “significant degenerative
changes of the lumbar spine including the sacroiliac joints” and the appearance of
“disengagement of one of his most superior hooks.” R. 520–521. 4 Dr. Sharf later examined
Holzmeyer in a follow-up appointment and scheduled CT scans of his spine. R. 522. Several
months later, on February17, 2010, Holzmeyer saw Dr. Gary Holland in an effort to deal with
continuing back pain. He reported that the back “bracket” set up by his previous surgery seemed
to be “breaking,” and he complained of increased pain and diminished mobility. Dr. Holland
noted that Holzmeyer’s range of motion was “significantly limited by pain.” R. 553.
Holzmeyer underwent a CT scan of his cervical spine, thoracic spine, and lumbar spine
on April 7, 2010. The scan revealed multilevel disc bulging with some “unremarkable”
degenerative changes in the cervical spine; it also showed deterioration in the condition of the
Harrington rods that had been implanted during his first back surgery. R. 105. On April 23, 2010,
Holzmeyer consulted with Dr. Glenn Fuoco at Tampa Bay Orthopaedic Specialists, to whom he
His surgery was a “T8-L3 fusion” involving the implantation of Harrington Rods, intended to stabilize his spine.
Docket No. 28 at 8.
The doctor’s notes reflect that Holzmeyer complained of his pain as follows:
He now has increased pain in the last week or so in his lower back after doing some lifting prior to
his pain starting. It radiates along the back and eventually up to his neck and causes some
headaches. He has no change in symptoms with change in position. It does awaken him from
sleep. He has two joints of maximum pain, one in the mid-thoracic region, and one around the
right sacroiliac joint. . . . He rates his pain as 7/10 with all axial pain at the neck and equal back
and leg pain at the lower back. He can stand for 5 minutes, walk 500 feet . . . .
had been referred by Dr. Sharf. Holzmeyer reported to Dr. Fuoco that he had pain “across the
lower back, right greater than left, [with] some symptoms shooting pains and numbness into the
right leg.” R. 96. He also told the specialist that his 2009 shift to a primarily sedentary position
as a “home pharmacist” had exacerbated his pain issues; Dr. Fuoco noted that “since September
 he has been doing sitting work and this has caused a lot of the lower pack pains. He has to
sit with his left leg elevated [due to a clotting issue] which is aggravating his back pain.” Id. He
further noted that Holzmeyer rated his lumbar spinal pain at “7 to 8/10” and assessed his
standing tolerance as 5 to 10 minutes only. Id. Dr. Fuoco later administered a bilateral sacroiliac
joint injection in an effort to ameliorate Holzmeyer’s pain. R. 108, 120–121. At a follow-up
appointment with Dr. Fuoco two weeks after the injection, Holzmeyer reported that his
symptoms had temporarily eased, but had returned only days after the injection. Dr. Fuoco then
recommended a different pain-relief injection—a caudal epidural. R. 123, 532, 543–544.
Holzmeyer later reported that this injection, too, produced only temporary relief and had no
longer-term effect on his chronic pain. R. 129.
On July 1, 2010, Holzmeyer visited the Laser Spine Institute, where he reported an
average pain level of “9/10” when active and “6 to 7/10” when resting; examination revealed
tenderness at several of his vertebrae and a limited range of motion. R. 160–161. 5 After another
examination on July 7, he was scheduled for a second back surgery. Two doctors at the Institute
performed the surgery on July 20—an operation which consisted, in their words, of three
procedures: destruction by thermal ablation of the paravertebral facet joint nerves, lumbar
laminectomy and foraminotomy, and an additional caudal epidural steroid injection. R. 166. 6
Less than a week later, Holzmeyer also had another appointment with Dr. Holland of the Tampa Bay Orthopaedic
Specialists, who noted that he continued to suffer from “longstanding chronic back pain with tenderness throughout
the low back.” R. 558.
The record contains a more detailed description of the operation performed. See R. 166–168.
After initially reporting some improvement, Holzmeyer contacted the Institute in August 2010 to
tell them that his lower back pain had returned; the Institute’s treatment note indicates that
“[Holzmeyer] feels he is deteriorating due to returning pain in his right hip and [lower
extremity].” R. 170. On September 1, 2010, a physician with the Institute administered another
caudal epidural steroid injection. R. 483–484. Mr. Holzmeyer underwent an MRI on September
27, 2010. The presence of metal distorted some of the readings, but the imaging report noted
abnormalities on the “L4-5 level” indicating “degenerative disc disease”; it further stated that
“nerve root compression cannot be excluded on a degenerative basis.” R. 549.
After Holzmeyer moved to Indiana, he became a patient of Dr. Ross Whitacre, an
orthopedic specialist at Tri-State Orthopaedics; his first appointment occurred on October 18,
2010. R. 192–194. At this initial appointment, Dr. Whitacre noted that Holzmeyer had
“significant lumbar spondylosis with stenosis at L4-5” that had been “incompletely resolved” by
his July 2010 surgery, “symptomatic spondylosis of the lower lumbar levels,” neck pain with
“fluctuant soft tissue mass over the cervicothoracic junction,” and headaches “that appear to be
tension related.” R. 193. Tri-State ordered a CT scan the same day; the scan analysis notes that
while there is no “acute fracture or dislocation” of the spine as a whole, the L4-L5 vertebrae
showed “broad-based disc osteophyte complex which appears to be causing moderate to severe
central spinal canal stenosis.” R. 194. When initial efforts at pain management, including “back
blocks,” did not produce satisfactory results, Dr. Whitacre referred Holzmeyer to Dr. John
Grimm, an orthopedic surgeon affiliated with Tri-State. After an examination, Dr. Grimm
summarized Holzmeyer’s reported symptoms as follows:
He points to the worst of his complaints in his low back at the lumbosacral
junction. The pain also does radiate bilaterally into the lateral aspects of his hips
and down the lateral aspects of his thighs into his calves. He states that the left leg
is much worse than the right. He has no bowel or bladder dysfunction or gait
disturbance. Walking is the worse of his complaints, which he only can do for less
than a block. Standing also greatly increases the pain and he cannot tolerate
standing for more than 10 minutes. He states that sitting is tolerated for about 30
minutes. He feels as though his condition is slowly getting worse over time.
R. 256. Dr. Grimm’s spinal examination revealed “tenderness throughout the entire thoracic and
lumbar spine,” although he stated that “motor, reflex, [and] sensory testing in the upper
extremities reveals no deficit.” R. 257. Grimm judged Holzmeyer’s latest CT scan to show
“moderate collapse” of the L4-5 disc, and some deterioration of the “hook” portion of the
hardware installed by the 1987 fusion surgery. Id. Dr. Grimm assessed Holzmeyer with an
“Oswestry Disability Index” score of 70%. 7 Id.
On December 22, 2010, Holzmeyer underwent another CT scan of his spine, which
showed a “right laminectomy defect” with “moderate to severe central spinal canal stenosis” at
vertebrae L4-L5, “mild central stenosis” at the L3-L4 vertebrae, and some other non-severe
abnormalities. 8 R. 266–269. On January 13, 2011, Holzmeyer had a third back surgery, this time
performed by Dr. Matthew Kern of Comprehensive Neurosurgical Specialists in Evansville,
Indiana. R. 944. 9 When Holzmeyer visited Dr. Kern for a follow-up two months later, he
reported to the surgeon that “his preoperative [back] pain has pretty much resolved.” Id. He did,
As Plaintiff explains, the Oswestry Disability Index (ODI) is a tool used by physicians in assessing chronic back
pain and managing spinal disorders: http://www.ncbi.nlm.nih.gov/pubmed/11074683. According to the National
council for Osteopathic Research, a score between 61% and 80% indicates that “back pain affects all aspects of the
lives of these patients in their home and working environment. They require active intervention.”
http://www.ncor.org.uk/wp-content/uplaods/2012/12/Oswestry-Disability-questionnairev2.pdf (last visited August
12, 2014). Docket No. 28 at 15 n.15.
The scan report stated as follows with respect to the L4-L5 vertebrae: “At L4-L5 level, there appears to be a broadbased disc protrusion. There is associated posterior osteophyte formation demonstrated. There is a laminectomy
defect on the right at this level. There appears to be moderate to severe central spinal canal stenosis at this level.
There is moderate bilateral neural foraminal narrowing demonstrated. There are moderate degenerative changes
involving the bilateral facet joints.” R. 268.
The operation notes for this surgery are not in the record, but Dr. Kern’s post-operative notes discuss the basics of
the surgery. R. 944.
however, report pain in his buttocks that was severe enough to force cancellations of home
physical therapy sessions. Id.
In April 2011, Holzmeyer had his first appointment with Dr. Steven Rupert, a pain
management specialist. R. 224–228. According to Dr. Rupert, Holzmeyer reported back pain
that “increases with standing, sitting in the same position, [and] laying [sic] down,” which
afflicted him every day of the week. R. 224. On examination, Dr. Rupert found that a number of
areas in Holzmeyer’s back were “tender with palpation,” and his overall diagnosis was “failed
back syndrome.” R. 228. At a follow-up visit with his surgeon Dr. Kern the same month,
Holzmeyer reported that, notwithstanding his temporary post-surgical improvement in pain, all
of his preoperative symptoms had now returned. R. 223. Declaring that further surgical options
were inadvisable, Dr. Kern told Holzmeyer that he did not ‘have anything further to offer him,”
and he directed him back to Dr. Whitacre to attempt pain management. Id.
Holzmeyer had additional appointments with pain management specialist Dr. Rupert on
June 1 and July 21, 2011. On both occasions, Holzmeyer reported suffering constant pain in his
lower back and hip/buttocks areas, exacerbated by lying down, movement, and standing. R. 242,
245. After Dr. Kern advised against further surgery, Holzmeyer also saw Dr. Whitacre on July
20, 2011 and inquired about the possibility of undergoing epidural therapy. Noting the
persistence of Holzmeyer’s tenderness “over the lumbosacral junction and higher up at the
thoracolumbar interface” as well as “postphlebitic syndrome in the lower extremity with the calf
being markedly [larger] circumferentially of the left than the right,” Dr. Whitacre scheduled
Holzmeyer for a high-volume caudal epidural steroid injection. R. 249. Holzmeyer received the
injection on August 16, 2011. R. 327–328.
At a subsequent appointment with Dr. Whitacre on September 19, 2011, Holzmeyer
reported that the steroid injection had not been effective—pain had returned after three days—
and he had not gone through with the second scheduled injection. R. 323. Dr. Whitacre described
Holzmeyer’s condition as follows:
His standing tolerance is limited to 5-10 minutes at most. Sitting is more
uncomfortable than standing but not by much. He does not feel comfortable at
work in terms of his positional intolerance as well as his inattentiveness secondary
to his medications . . . . We had a long discussion today about medication
management. I am afraid that one of the things limiting him from returning to
gainful employment is his inattentiveness and some of the side effects from the
Id. Physical examination of Holzmeyer at the same appointment revealed “significant extensionbased back pain” and limited range of motion in the spine. Holzmeyer saw Dr. Whitacre again on
October 24, 2011; at this appointment, Holzmeyer and the doctor discussed the “physical
capacity evaluation” Whitacre had filled out in July as part of Holzmeyer’s disability application
process (see below). As Dr. Whitacre noted:
His pain continues to be worse with upright standing and walking. He tells me he
spends 90% of his day recumbent. In fact, he has some concerns about the report I
had filled out earlier as part of his disability paperwork. I indicated he could stand
or walk several hours per day so long as breaks were allowed. He estimates today
that he walks only when he has to go outside the home. He tells me he literally
spends 90% of his time reclined. I questioned this a few times, but he reasserts the
fact that he rarely if ever is actually seated upright in a chair, and even more rare
is the occasion where he is standing or walking. He says he can walk 1 lap around
the grocery store. He would not be able to do a home pharmacy because of the
distractibility secondary to narcotic medications in his own words. He says that
his pain is so intense when he is upright that he cannot focus and gives the
example of his fidgeting in the seat today as evidence of his distractibility.
R. 325. Dr. Whitacre noted no changes from the September appointment in his physical
examination of Holzmeyer. A CT scan a week later revealed that Holzmeyer’s most recent
surgery had resulted in “successful lumbar surgical decompression,” but noted the persistence of
“chronic degenerative disease” and scoliosis. R. 329. 10
On December 20, 2011, Holzmeyer saw Dr. William Ante, a Tri-State pain specialist to
whom he had been referred by Dr. Whitacre. R. 387–389. Dr. Ante noted as follows:
His main complaint is his low back pain. It feels like aching, burning, and sharp
pain in both sides of the back equally. If he sits for a prolonged period of time or
drives for a prolonged period of time he will have numbness in the lateral thighs
bilaterally. He thinks that he has been worsening the past two months. He does
have some numbness in the left lateral ankle and foot but he attributes that to a
deep venous thrombosis.
R. 387. Dr. Ante also discussed the benefits and drawbacks of implanting a “drug pump” in a
more aggressive attempt to alleviate the back and hip pain. R. 389. In the most recent medical
consultation disclosed in the record, Holzmeyer sought treatment at OrthoIndy; during his
appointment on May 3, 2012, he reported a back pain level of 8/10, and a nurse practitioner’s
examination showed tenderness “diffusely through the lumbosacral region” with restricted range
of motion. R. 561.
B. The disability benefits review process
Michael Holzmeyer stopped his work as a home pharmacist for Walgreens on April 4,
2010; he has not worked since. Shortly after he stopped work, Holzmeyer applied for, and
received, short term disability benefits from Walgreens. R. 173. He received the short term
benefits from April 7 to October 3, 2010—the full six month period in which a disabled
employee can receive short term benefits under the Plan. R. 176–177; Pl.’s Ex. 2 at 8.
After a December 29, 2011 follow-up appointment to discuss the results of his October CT scan, Dr. Whitacre
noted the persistence of Holzmeyer’s “extension-based lumbosacral junction pain.” R. 386.
After the expiration of his short term benefits, Holzmeyer sought long-term benefits.
Sedgwick approved his application initially, but stated in its letter to him that the approval was
not permanent in nature, and could renew or lapse depending on Holzmeyer’s health status. In
claim notes dated October 4, 2010, Sedgwick approved Holzmeyer for benefits through October
19, to allow additional time for him to recover from his July 2010 back surgery. R. 176.
Sedgwick’s letter to Holzmeyer stated that additional documentation would be necessary in order
for benefits to be continued; it also informed him that he was obligated to apply for Social
Security disability benefits pursuant to his Plan. R. 177. Sedgwick subsequently renewed
Holzmeyer’s long-term benefits several times. On October 21, 2010, Sedgwick notified him that
his benefits had been extended to December 31. R. 196–197. After Holzmeyer’s third back
surgery on January 13, 2011, Sedgwick sent him a letter the next day extending benefits again,
this time through March 31. R. 206–207. Two more extensions from Sedgwick prolonged
Holzmeyer’s receipt of benefits through August 31, 2011. R. 212, 272.
In each of its letters extending benefits, Sedgwick notified Holzmeyer that continuation
of benefits past a given end date would depend on his providing additional, up-to-date
documentation of his condition, including copies of the most recent office notes and “operative
test results and diagnostic test results,” names and dosages of all medications, and “details on
restrictions and limitations.” See R. 272–273.
As part of its effort to document Holzmeyer’s work-related limitations, Sedgwick in the
summer of 2011 obtained “functional capacities evaluations” (FCEs) 11 from two of Holzmeyer’s
treating physicians: Dr. Whitacre and Dr. Rupert. Dr. Rupert filled out his functional capacity
Some of the record documents refer to these as “physical capacity evaluations.” We use the term “FCE”
throughout for the sake of simplicity.
form on July 21, 2011. He opined that Holzmeyer was capable of sitting, standing, or walking for
only up to one hour each in a given eight-hour workday. Where prompted to mark the “total
hours per day [the] patient is capable of working,” R. 237. Dr. Rupert indicated a maximum of
three hours—if allowed to lie down every hour and given breaks every 30 minutes. Dr. Rupert
concluded that these restrictions on Holzmeyer’s working capacity were “permanent.” Id. Dr.
Whitacre filled out the same form on August 9, 2011. For his part, he found that Holzmeyer
could sit for three to four hours a workday (with breaks every 15 minutes), stand for three hours
a day (with breaks every 20 minutes), and walk for up to an hour (with breaks every 15 minutes).
R. 248. Within those limits, Whitacre determined that Holzmeyer was capable of working a full
eight hours daily. Id. In contrast to Dr. Rupert, Whitacre opined that these restrictions were
“temporary,” to be reassessed upon Holzmeyer’s next appointment. 12
Sedgwick also retained two physicians to offer opinions on Holzmeyer’s functional
physical capacity based on record review; neither doctor examined Holzmeyer in person. Dr.
Victor Parisien reviewed Holzmeyer’s records and submitted his opinion on August 19, 2011.
His report recited that he had had access to the following record items in formulating his opinion:
progress notes from the Laser Spine institute surrounding his second (July 2010) back surgery;
progress notes from his appointments at Tri-State Orthopaedics (chiefly with Dr. Whitacre);
notes from Dr. Kern surrounding his third surgery; pain management specialist Dr. Rupert’s
notes from April 13, 2011; CT scan results from October and December 2010; and Dr.
Whitacre’s July 2011 “functional capacity evaluation.” R. 279. Dr. Parisien stated in his report
that he had contacted Dr. Whitacre’s office in order to consult with the care provider about
Both doctors additionally found extensive restrictions on Holzmeyer’s ability to lift and carry objects of various
weights. Since these restrictions do not bear on his ability to perform the job of a “home pharmacist,” they do not
need to be discussed in detail. See R. 237, 248.
Holzmeyer’s condition, but Whitacre had not returned his calls. Instead, he had spoken to Delia
Lowe, Whitacre’s surgical technician, who had told him that “Dr. Whitacre agrees that the
patient could do a sedentary job with restrictions as outlined in his functional capacity evaluation
of 8/9/11. Even with these restrictions, he should be able to do his sedentary jobs of a
pharmacist.” Id. In answer to Sedgwick’s questions, Dr. Parisien stated that “[t]the patient has
had extensive spinal surgery on a number of occasions and continues to have pain on sitting,
standing, and walking. These conditions may affect his ability to work.” R. 280. Relying on Dr.
Whitacre’s FCE, however, Parisien went on to assert that “objective medical information”
substantiating Holzmeyer’s claim of disability was lacking: “There is nothing in the medical
record that would support the employee’s complete inability to work. He has had a recent
Functional Capacity Evaluation with work capacity.” R. 281. He went on to note that the record
showed limited range of motion and diminished sensation, but that “orthopedic tests are
negative” and none of the CT results “would explain his complaints of pain and none . . . would
limit his ability to do a sedentary job.” Id.
On August 22, 2011, Dr. Jamie Lee Lewis submitted a report to Sedgwick in the same
format. Unlike Parisien, Dr. Lewis was evidently assigned to review the opinions of Dr. Rupert
rather than Dr. Whitacre; however, he stated that his attempts to contact Rupert were unavailing.
R. 276. In the absence of any direct communication with Rupert, Lewis based his record review
on only the following files: Laser Spine Institute notes from July to August 2010; Dr. Kern’s
progress notes from February to July 2011; and Dr. Rupert’s treatment notes from April 13 to
July 1, 2011. Id. Lewis recognized that Rupert had documented Holzmeyer’s “chronic low back
pain,” but he asserted that the pain should not necessarily be construed as a barrier to working
capacity: “Given the chronicity of patient’s symptoms if medications [sic] side effects resulted in
functional impairment[,] appropriate action would be to discontinue medication and rotate to a
better tolerated agent. As such a functional limitation as a result of a pharmacological agent
would not be supported in this chronic setting.” R. 277. Although he acknowledged that the
January 2011 surgery reflected a “complex history of spinal stenosis,” Lewis stated that, in the
absence of follow up notes from that most recent surgery, he lacked objective medical evidence
supporting a finding of disability—instead, he found that Holzmeyer was capable of working if
“limited to sedentary work secondary to lumbar spine pathology and difficulty with mobility.”
Id. Lewis summarized his conclusion as follows:
The medical documentation identifies [that] the patient has complex history of
spinal stenosis[,] having undergone a multilevel laminectomy in January of 2011
with associated fusion. The notes by Comprehensive Neurosurgical Specialists
identify [that] the patient has some difficulty walking in the postoperative state
after fusion and ultimately underwent a second laminectomy as described.
Follow-up notes from the secondary laminectomy were not provided for review to
assess the patient care and progress. From a physical medicine and rehabilitation
perspective, the employee is able to perform a sedentary job as of 07/01/11 with
no objective findings to support the contrary.
In a letter to Holzmeyer dated October 3, 2011, Sedgwick announced that Holzmeyer’s
long-term disability benefits had been terminated as of September 20, 2011. The letter recited
that Sedgwick had reviewed treatment notes from Drs. Rupert, Whitacre, and Kern, and that it
had considered the FCEs submitted by both Rupert and Whitacre, together with the reviews of
these doctors’ recommendations conducted by Drs. Lewis and Parisien, respectively. R. 284–
285. As Sedgwick explained, it relied primarily on the two FCEs and the analyses of the recordreviewing physicians; in each case, it determined that, “[i]n view of the medical records provided
and from the orthopedic standpoint, you are capable of doing a sedentary job.” R. 285. Based on
a discussion with “human resource generalist” Ashley Raybuck, Sedgwick indicated that it had
learned that Holzmeyer worked as a “home pharmacist, which is a sedentary position. This
position would allow for breaks from sitting as indicated in the restrictions and limitations.”
Based on this assessment of his functional capacities and the nature of his occupation, Sedgwick
concluded that “there is no objective medical documentation to support restrictions and
limitations that would prevent you from perform [sic] your sedentary job duties.” R. 285.
C. Holzmeyer’s administrative appeals
In November 2011, Holzmeyer appealed Sedgwick’s termination of his long term
disability benefits. In support of the appeal, he submitted several new documents, most
significant of which was information regarding his approval for SSDI benefits from the Social
Security Administration (SSA). The Plan mandated that Holzmeyer apply for SSDI, and
Walgreens had contracted with USI Midwest, a social security vendor, to assist him in preparing
the application. In a letter dated October 22, 2011, the SSA found Holzmeyer to be disabled as of
April 4, 2010—the day he had quit work at Walgreens—and approved him for benefits. R. 298–
301. In addition to evidence that he had met the SSDI standard for disability, Holzmeyer also
submitted medical information reflecting his ongoing treatment. These included records of
appointments with Dr. Whitacre on September 19 and October 24, 2011; records of an August
16, 2011 epidural injection, and a CT scan performed on October 31, 2011. See R. 321–329.
Sedgwick’s internal notes indicate that, in considering Holzmeyer’s appeal, it sought a
further job description from Walgreen’s HR representative Ashley Raybuck. R. 48. Those same
internal notes show that Sedgwick received only a broad description from Walgreen’s HR
department—that Holzmeyer was an “@ home pharmacist” [sic] whose job was “sedentary” in
nature. R. 49; 341–342. Sedgwick also obtained opinions from two more physicians, each of
whom reviewed elements of Holzmeyer’s records but did not examine him in person.
Dr. John Graham provided the first review, dated January 19, 2012. R. 344–350. Dr.
Graham noted that he had attempted to call Dr. Whitacre and Dr. Sharf regarding Holzmeyer’s
condition, but had failed to reach either physician. R. 344–345. His report reviews the medical
record at length, and it mentions the FCE conducted by Dr. Rupert and the record reviews
conducted by Drs. Parisien and Lewis. Graham also noted that, since his initial FCE, Dr.
Whitacre had modified his conclusions after a subsequent visit with Holzmeyer:
Dr. Whitacre indicate [sic] he could revise his statement to be more in line with
that of Dr. Rupert, who indicated with standing, sitting and walking up to an hour
with viewing a computer screen for 8 hours, as long as he had the ability to lay
down every hour. Subjectively this seems to fit more with what the patient
describes himself doing at home, though I have no objective evidence obviously
of what he actually does at home, nor do I have a functional capacity evaluation
for instance, which would provide objective data. 13
R. 346. Graham acknowledged that Holzmeyer suffered “chronic low back and lower extremity
pain,” recognizing that various attempts at assuaging it had been unavailing; he also
acknowledged the concerns Holzmeyer had expressed about the “distractibility” from his pain
medications depriving him of the high level of concentration necessary to perform his job, but
Graham determined that “the documentation available for review provides no clinical findings”
to support that concern. R. 349. Graham reached the conclusion that limited range of motion was
the only physical limitation that was documented in the record—but he opined that “from an
orthopedic perspective, the patient would be able to perform his regular unrestricted job as an in-
It is not clear why Dr. Graham claimed not to have a “functional capacity evaluation” from Whitacre. His
discussion of the file review elsewhere in his report indicates that he saw the FCE that Whitacre performed on
August 9, 2011. R. 346.
home pharmacist, for the dates in question.” Id. Dr. Graham made no mention in his report of
Holzmeyer’s SSA disability finding.
Dr. Howard Grattan provided the second record review to Sedgwick, also dated January
19, 2012. Like Graham, Grattan reported that he was unsuccessful in his attempts to speak to
Holzmeyer’s treating physicians—in his case, he called the offices of Drs. Rupert and Fuoco, but
spoke only to receptionists. R. 351–352. He opined that, while Holzmeyer demonstrated
objective deficits in his range of motion, such handicaps would not impact his ability to fulfill
the requirements of the “home pharmacist” position. Id. Dr. Grattan summarized his opinion as
Subjectively the patient reports of not being able to get out of a reclined chair for
90% of the day and the patient self-reports distractibility secondary to
medications. However, the employee’s self-reported side effects from medications
are not supported by clinical documentation. Based on the medical information
provided for the review, the patient had intact strength, sensation and coordination
of his upper and lower extremities. There are no objective deficits in the
documentation that would prevent him from doing a sedentary duty occupation.
Based on the job description, the employee would be . . . able to perform the
home pharmacist duties, which are noted as assisting the retail stores (verifying
prescriptions), a sedentary occupation with telephone and computer use [and] no
contact with customers. Therefore, the employee is not disabled from his regular
unrestricted job as of 9/20/11 to return to work from a physical medicine and
R. 354. Like Graham’s, Grattan’s report did not address Holzmeyer’s SSA finding of disability.
Sedgwick denied Holzmeyer’s appeal of the long term disability benefits termination in a
letter dated February 10, 2012; the letter recapitulated the findings of Drs. Graham and Grattan
and echoed their conclusions. R. 355–356.
Sedgwick’s appeal denial advised Holzmeyer that he had the option of filing a second
administrative appeal, and Holzmeyer did so on May 10, 2012. In a letter to Sedgwick,
Holzmeyer’s attorney, Mike Hayden, again directed Sedgwick’s attention to the SSA’s favorable
disability finding and also raised concerns about Holzmeyer’s lower extremity issues (including
deep vein thrombosis) and the impact of his heavy painkiller regimen on the professional
diligence and concentration required of his home pharmacist position. R. 364–366. Sedgwick
denied this second appeal on August 22, 2012. R. 1065. In turning down the second appeal,
Sedgwick again relied on the opinions of two record reviewing physicians—this time, Drs.
Leonard Sonne and Richard Kaplan. In opinions similar to those expressed by the four other
physicians relied upon by Sedgwick at earlier stages of the process, Sonne and Kaplan
acknowledged the presence of some functional limitations, but stated that Holzmeyer’s own
reports of his pain-related disability were unsupported by the evidence; both doctors found that
Holzmeyer was capable of performing his job as a home pharmacist. 14
After the denial of his second appeal, Holzmeyer filed this claim under ERISA on
November 27, 2012.
Standard of Review
Federal Rule of Civil Procedure 56 provides that summary judgment should be granted
when the record evidence shows that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322–323 (1986). The purpose of summary judgment is to “pierce the
pleadings and to assess the proof in order to see whether there is a genuine need for
trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
As Plaintiff points out, the reports of Drs. Sonne and Kaplan both originally preceded under the assumption that
disability for Holzmeyer was defined by his inability to perform any occupation rather than his “own occupation”—
home pharmacist. Sedgwick sought addenda from both physicians to rectify this error, but in doing so it made
another: it asked them to evaluate Holzmeyer’s fitness to work as a retail pharmacist rather than a home pharmacist.
Sedgwick responded by asking for additional clarifications from both doctors, and both reaffirmed their opinions in
light of the “own occupation” disability standard. See R. 1040–1052.
Disputes concerning material facts are genuine where the evidence is such that a reasonable jury
could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In deciding whether genuine issues of material fact exist, the court construes all
facts in a light most favorable to the non-moving party and draws all reasonable inferences in
favor of the non-moving party. See id. at 255. However, neither the “mere existence of some
alleged factual dispute between the parties,” id., 477 U.S. at 247, nor the existence of “some
metaphysical doubt as to the material facts,” Matsushita, 475 U.S. at 586, will defeat a motion
for summary judgment. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir.
Plaintiff’s claim arises under the Employee Retirement Income Security Act of 1974
(“ERISA”), a statute “enacted to promote the interests of employees and their beneficiaries in
employee benefit plans, and to protect contractually defined benefits.” Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 113 (1989). ERISA provides that plans covered by the statute must
“provide adequate notice in writing to any participant or beneficiary whose claim for benefits
under the plan has been denied, setting forth the specific reasons for such denial, written in a
manner calculated to be understood by the participant.” 29 U.S.C. § 1133(1). ERISA further
mandates that plan procedures “afford a reasonable opportunity . . . for a full and fair review” of
dispositions adverse to the claimant. Black & Decker Disability Plan v. Nord, 538 U.S. 822,
830–831 (2003) (citing 29 U.S.C. § 1133(2)). In fulfilling their duties towards employees
covered by plans, administrators must act solely in the interests of the plan participants, and
faithfully discharge the standards set forth in plan documents. See 29 U.S.C. § 1104(a)(1).
For the first 18 months after an employee quits work—the time period at issue here—the
Walgreens Plan defines “long term disability” as follows:
[You are disabled if,] [d]ue to sickness, pregnancy, or accidental injury, you are
prevented from performing one or more of the essential duties of your own
occupation and are receiving appropriate care and treatment from a doctor on a
continuing basis; and . . . you are unable to earn more than 80% of your predisability earnings or indexed pre-disability earning at your own occupation from
any employer in your economy.
Pl.’s Ex. 2 at 8. Here, both parties agree that the Plan vests discretion in Sedgwick, the claim
administrator, to make benefits decisions and construe the Plan’s terms. See Docket No. 30 at 12;
Docket No. 28 at 38. Accordingly, we accord some deference to Sedgwick’s decisions,
overturning them only if they constituted an “abuse of discretion”—or, in other words, if the
administrator’s actions were “arbitrary and capricious.” See Raybourne v. Cigna Life Ins. Co. of
N.Y., 576 F.4d 444, 449 (7th Cir. 2009) (“A plan's express grant of discretion to the administrator
lowers the standard of judicial scrutiny from de novo to abuse-of-discretion.”); Davis v. Unum
Life Ins. Co. of Am., 444 F.3d 569, 576 (7th Cir. 2006) (“When, as here, the terms of an
employee benefit plan afford the plan administrator broad discretion to interpret the plan and
determine benefit eligibility, judicial review of the administrator's decision to deny benefits is
limited to the arbitrary-and-capricious standard.”)
Our review under this standard is not, however, a “rubber stamp.” Holmstrom v. Metro.
Life Ins. Co., 615 F.3d 758, 766 (7th Cir. 2010). The Seventh Circuit has described the courts’
duty as ensuring that a plan administrator followed adequate procedures, particularly that it
“communicated ‘specific reasons’ for its determination to the claimant.” Majeski v. Metro. Life
Ins. Co., 590 F.3d 478, 484 (7th Cir. 2009). A decision may also be arbitrary and capricious if
there is “an absence of reasoning in the record to support it,” or if the decision failed to draw a
logical link between the conclusion and its supporting evidence. Leger v. Tribune Co. Long
Term Disability Benefit Plan, 557 F.3d 823, 831 (7th Cir. 2008); Hackett v. Xerox Corp. LongTerm Disability Income Plan, 315 F.3d 771, 774–775 (7th Cir. 2003). In sum, we must overturn
a denial of disability benefits where the administrator’s application of the employee’s plan was
“downright unreasonable.” Black v. Long Term Disability Ins., 582 F.3d 738, 745 (7th Cir.
2009). When the action under review is an administrator’s denial of an appeal, the same
strictures of reasonableness apply; to survive scrutiny, the denial must “address any reliable,
contrary evidence presented by the claimant.” Majeski, 590 F.3d at 484, Love v. Nat’l City Corp.
Welfare Benefit Plan, 574 F.3d 392, 397–398 (7th Cir. 2009).
In reviewing a plan administrator’s exercise of its vested discretion in denying disability
benefits pursuant to ERISA, we limit the scope of our consideration to the administrative record
upon which the decision was based. See Perlman v. Swiss Bank Corp. Comprehensive Disability
Protection Plan, 195 F.3d 975, 981 (7th Cir. 1999) (“Deferential review of an administrative
decision means review on the administrative record.”). Consideration of extraneous evidence is
not appropriate. 15
Here, Plaintiff objects to both Sedgwick’s termination of his benefits in September 2011
and its denial of his two subsequent appeals. We conclude that Sedgwick’s decision was
unreasonable in both instances and address each aspect of Plaintiff’s claim in turn.
The initial decision to terminate Holzmeyer’s long term benefits
We thus do not consider two of Plaintiff’s attached exhibits: an affidavit submitted by Holzmeyer (Pl.’s Exhibit 3)
and copies of certain of Holzmeyer’s x-ray images (Pl.’s Exhibit 4). We see no reason to exclude, however, the text
of the Walgreen’s Plan, attached as Plaintiff’s Exhibit 2, whose definition of long-term disability is reproduced
several times within the administrative record.
Plaintiff challenges the termination of benefits on a number of interrelated grounds. He
asserts that Sedgwick “ignored” or “discounted” the objective medical evidence establishing his
disability, that it unduly disregarded the opinions of his treating physicians, that its own decision
was based on less than full consideration of the record evidence, that its reasoning was internally
consistent with the opinions offered by its own record-reviewing physicians, and that its decision
to terminate benefits without any evidence of “improvement” in Holzmeyer’s condition was per
se irrational. See Docket No. 28 at 35–42. While we do not accept all of Plaintiff’s theories, 16 we
agree that Sedgwick’s decision was unreasonable in one determinative respect. The record
review opinions of Drs. Parisien and Lewis—upon which Sedgwick’s letter of termination
principally relied—either ignored or misconstrued the functional capacity evaluations proffered
by Holzmeyer’s treating physicians. Rather than grapple with the inconsistency between these
opinions, Sedgwick proceeded as if there were no inconsistency to explain; such a failure, on an
issue so central to its decision, runs afoul of ERISA’s mandate of procedural and substantive
Before addressing the fatal deficiency in Sedgwick’s method, however, we must first
resolve Plaintiff’s more broad-based objections. First, Plaintiff’s contention notwithstanding, it is
In particular, we will not engage in an extended discussion of Plaintiff’s contention that, having at least once
found Holzmeyer disabled, it was inherently unreasonable for the administrator to reverse that decision without
concrete evidence of improvement in his condition. Plaintiff cites Leger v. Tribune Long Term Disability Benefit
Plan, 557 F.3d 823, 832 (7th Cir. 2009), in support of this argument, but the Seventh Circuit’s decision there
actually cautioned against construing an initial award of benefits as creating a “presumption” that a plan
administrator must overcome. 557 F.3d at 832 (“However, the previous payment of benefits is just one
‘circumstance,’ i.e. factor, to be considered in the court’s review process; it does not create a presumptive burden for
the plan to overcome.”). As Defendant points out, its initial benefits awards appear to be tied to concrete medical
events, like the two surgeries Holzmeyer underwent in 2010 and 2011. See R. 172–173; R. 89–90; R. 83; R. 206–
214. It was not per se unreasonable for Sedgwick to grant him benefits for discrete periods of time, reserving a
decision on whether his condition rendered him permanently disabled. Additionally, the Sedgwick claim procedures
Plaintiff cites in support of its claim that Sedgwick violated its own protocols, see Docket No. 28 at 40–41 (citing
Wilson v. Walgreen Income Protection Plan for Pharmacists and Registered Nurses, 2013 WL 1799599, at *35
(M.D. Fla. Apr. 29, 2013), are not appropriate for consideration here; they are not part of the administrative record
in this case.
not inherently unreasonable for a plan administrator to rely on the opinions of record reviewing
physicians in assessing disability. See Black v. Long Term Disability Ins., 582 F.3d 738, 745 (7th
Cir. 2009) (upholding denial of benefits where administrator relied on the opinions of five
physicians who reviewed the record but did not examine claimant). As the Seventh Circuit has
explained, there is no “authority that generally prohibits the commonplace practice of doctors
arriving at professional opinions after reviewing medical files. In such file reviews, doctors are
fully able to evaluate medical information, balance the objective data against the subjective
opinions of the treating physicians, and render and expert opinion without direct consultation.”
Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 577 (7th Cir. 2006). It may be natural to
suspect that a doctor hired by an administrator to render an expert opinion might be biased
towards the source of his or her pay, but the Seventh Circuit has determined that any such tilt is
likely to be offset by the tendency of treating physicians to “advocate” on behalf of their patients.
See Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 917 (7th Cir. 2003);
Davis, 444 F.3d at 578. See also Black & Decker, 538 U.S. at 834 (holding that “courts have no
warrant to require administrators automatically to accord special weight to the opinions of a
Nor is a claim administrator always unjustified in rejecting the opinions of treating
physicians that a claimant is disabled, or in according less weight to reports of disability not
supported by objective evidence. It is not uncommon for doctors scrutinizing a claimant’s
medical—and claim administrators in turn—to observe a disconnect between reported subjective
pain symptoms and a dearth of objective evidence of disability. “[A] distinction exists . . .
between the amount of fatigue or pain an individual experiences . . . and how much an
individual’s degree of pain limits his functional capacities, which can be objectively measured.”
Speciale v. Blue Cross & Blue Shield Ass’n, 538 F.3d 615, 622 (7th Cir. 2008) (quoting Williams
v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir. 2007)). A claim administrator is entitled to
disagree with a treating physician, or to discount some reports in favor of other evidence it finds
more credible—so long as it explains and supports its decision to do so. See, e.g., Speciale, 538
F.3d at 623–624 (choosing to weigh one doctor’s “specific, … quantified” functional capacity
report over the opinion of another doctor whose report was more “tentative”); see also Devlin v.
Walgreen Income Protection Plan for Store Managers, 2013 WL 4089900, at *6 (W.D. Mich.
Aug. 13, 2013) (holding that deference to claim administrator’s decision was appropriate where
defendant credited one functional capacity opinion and gave less weight to another).
A claim administrator cannot, however, simply ignore or misconstrue evidence favorable
to a claimant. A functional capacity evaluation prepared by a claimant’s physician merits serious
consideration, and it cannot be cast aside solely on the grounds that the doctor’s evaluation was
based on the claimant’s complaints of pain. See Leger, 557 F.3d at 832. In such circumstances,
the plan must “explain why, despite evidence to the contrary in the FCE, it nevertheless finds
[plaintiff’s] complaints of pain unreliable . . . . Without further explanation, there is an ‘absence
of reasoning in the record.’” Id. at 834–835.
Here, both Dr. Rupert and Dr. Whitacre prepared FCEs whose findings are inconsistent
with Holzmeyer’s ability to perform his former job as a home pharmacist on a full-time basis. In
his FCE, created on July 21, 2011, pain specialist Dr. Rupert found that Holzmeyer was capable
of sitting only up to one hour a day, and doing work of any type for only two to three hours a
day—and at that, only with breaks allowing him to lie down. R. 237. He opined that these
restrictions were permanent. Id. Shortly thereafter, on August 9, 2011, Dr. Whitacre also
submitted an FCE. He found that Holzmeyer could sit 3-4 hours in an 8 hour workday, albeit
with breaks every 15 minutes. Unlike Rupert, he characterized these limitations as temporary; he
also found that, with time sitting, standing, and walking aggregated, Holzmeyer could work for
eight hours in a day. 17 Id.
Dr. Jamie Lee Lewis, with whom Sedgwick contracted to review Holzmeyer’s records
and provide a disability opinion, stated in his report that he had reviewed Dr. Rupert’s FCE and
had attempted, unsuccessfully, to reach Dr. Rupert on the phone. Citing the lack of “follow-up
notes” from Holzmeyer’s January 2011 back surgery, Dr. Lewis opined that there were no
“objective findings” in the record that would support the conclusion that Holzmeyer was unable
to perform a sedentary job. R. 276–277. Other than noting he had reviewed Rupert’s FCE, Lewis
made no mention of Rupert’s findings that Holzmeyer could only sit up to one hour a day, and
could only perform work in any position up to three hours a day. Id.
Dr. Victor Parisien noted in his report that he viewed Dr. Whitacre’s FCE. Rather than
ignoring Whitacre’s views on functional capacity, Parisien purported to endorse them. “The
limitations as established by Dr. Whitacre on 8/9/11 appear to be appropriate, namely that he
could sit for four hours with a break every 15 minutes, he could stand for three hours with breaks
every 20 minutes, and walk for one hour with breaks every 15 minutes. He could work an eight
hour day . . . .” R. 281. Without further comment, Parisien then drew the conclusion, ostensibly
based on Whitacre’s FCE, that “the employee is able to perform his sedentary job as of
07/01/11.” 18 Id. To put it mildly, such a conclusion is puzzling. Holzmeyer’s sedentary job as a
Later, after Sedgwick had already made its initial decision to terminate benefits, Dr. Whitacre partially revised his
opinion, finding Holzmeyer more functionally limited than before. R.325.
Parisien’s report also states that, after his attempt to contact Dr. Whitacre himself was unsuccessful, he spoke to
Delia Lowe, Whitacre’s “certified surgical technician.” According to Parisien, Lowe told him that “Dr. Whitacre
agrees that the patient could do a sedentary job with restrictions as outlined in his functional capacity evaluation of
08/09/11.” R. 279. (emphasis added). Leaving aside the question of whether the prediction of Whitacre’s surgical
technician as to his supervisor’s opinions should carry any weight, Lowe’s quoted statement merely suggests that
home pharmacist requires sitting; to state, as Whitacre did, that Holzmeyer could piece together
an eight-hour workday by walking, standing, and sitting for some combination of hours is not to
conclude that Holzmeyer was capable of sitting in front of a computer screen for eight hours. As
Parisien himself acknowledged in his report, Holzmeyer’s back pain was exacerbated by sitting
as much as by other postures. R. 280 (“His pain varied from a 3/10 to a 10/10, aggravated by
sitting, standing, lying down.”). Whitacre’s FCE opined that Holzmeyer could sit for only three
to four hours daily; for Parisien to treat this report as endorsing capability to perform
Holzmeyer’s home pharmacist occupation for an eight-hour workday was a misinterpretation.
Parisien never mentioned Dr. Rupert’s FCE, or attempted to square its finding of severe
functional limitations with his own conclusions.
Sedgwick’s termination letter, in which it was bound by ERISA to explain to Holzmeyer
the bases for the denial of his benefits, expressly incorporated the opinions of Lewis and
Parisien. In the letter, Sedgwick said it had learned from a Walgreen’s HR representative that
Holzmeyer was “a work at home pharmacist, which is a sedentary position.” R. 285. After
presenting condensed versions of the opinions proffered by Lewis and Parisien, the letter
concluded: “[T]here is no objective medical documentation to support restrictions and limitations
that would prevent you from perform [sic] your sedentary job duties.” Id.
We find Sedgwick’s treatment of the opinions of Drs. Rupert and Whitacre unreasonable,
in two related respects.
A. Dr. Rupert’s opinions
Holzmeyer could work at a sedentary job under the conditions described in the FCE; it does not state, explicitly or
implicitly, that the “home pharmacist” position is such a job.
First, both the record reviewing physicians and Sedgwick’s termination letter simply
glossed over Rupert’s opinion that Holzmeyer could perform work in a sitting position for only
one hour a day at maximum—a finding, of course, flatly incompatible with their preferred
assessment of his functional capacity. As the Seventh Circuit has made clear in several
analogous decisions, this runs afoul of the procedural reasonableness demanded of claim
administrators even under courts’ deferential review of their exercise of discretion.
In Majeski v. Metropolitan Life Insurance Co., 590 F.3d 478 (7th Cir. 2009), the
disability claimant’s physical therapist performed a functional capacity evaluation in which she
determined that the claimant, whose work involved typing, could perform the task only for a
very short period without experiencing pain. 590 F.3d at 480–481. A record-reviewing physician
hired by the defendant, though he acknowledged viewing the treating physician’s evaluation,
nonetheless opined that there were “minimal objective findings on physical and neurological
examination” to support a finding of disability; he directly addressed neither the treating
physician’s functional capacity finding nor his conclusion that the claimant was unable to
perform her occupation Id. at 481. The defendant’s physician also failed to address a FCE
questionnaire filled about by another treating physician, which had also endorsed the view that
the claimant had a limited functional capacity—apparently because the company had not
forwarded the documents to him. Id. The defendant, MetLife, relied instead on the opinion of its
retained physician in denying the disability claim. “By ignoring [plaintiff’s] key medical
evidence,” the Seventh Circuit reasoned, “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.” Id. at 484.
Majeski relied upon, and echoed, the Seventh Circuit’s reasoning in two similar
decisions. In Leger v. Tribune Co. Long Term Disability Benefit Plan, 557 F.3d 823 (7th Cir.
2009), a physician hired by the defendant discounted a treating doctor’s FCE because it is “based
on [plaintiff’s] subjective complaints” and “not supported by any objectively documented
deficit.” 557 F.3d at 834. The court held the Plan’s reliance on such an analysis to be
unreasonable: “Under these circumstances, we believe it was incumbent on the Plan (or the
Plan’s consultant) to do more than just dismiss the complaints [of pain] out of hand. Instead, the
Plan must explain why, despite evidence to the contrary in the FCE, it nevertheless finds
[plaintiff’s] complaints of pain unreliable. . . .” Id. at 835. The Seventh Circuit made an even
more categorical statement in its decision in Love v. National City Corp. Welfare Benefits Plan,
574 F.3d 392 (7th Cir. 2009), which held that a plan administrator must not only “provide a
reasonable explanation for its determination,” but must also “address any reliable, contrary
evidence presented by the claimant”—including the opinions of his or her treating physician. 574
F.3d at 397.
From these strands of authority, we can distill at least one clear requirement: if a claim
administrator contradicts the findings of treating physicians as to the functional capacity of a
claimant, it must explain itself—and a cursory reference to the absence of other evidence in the
claimant’s favor is not enough. See, e.g., Leger, 557 F.3d at 834. Sedgwick’s letter to Holzmeyer
runs afoul of this requirement with respect to Dr. Rupert’s report. The letter did mention the fact
that Rupert had submitted an opinion, but it made no attempt to address his findings, or to
reconcile the gap between his view of Holzmeyer’s functional capacity and that adopted by its
record reviewing physicians. Cf. Speciale, 538 F.3d at 623–624 (approving of an administrator’s
decision to give greater weight to the opinion of a physician who gave a “specific . . . quantified”
opinion and had “expertise in pain management” over the opinion of a doctor whose opinion
lacked those qualifications). Given Sedgwick’s utter failure to explain itself in its letter, we can
only surmise from the letter’s wording that Sedgwick disregarded Rupert’s FCE because it was
based on a “subjective” assessment of pain rather than objective data; its summary of the report
of Dr. Lewis, whom it assigned to review Rupert’s opinions, cites Holzmeyer’s surgical history
before asserting succinctly: “From a physical medicine and rehabilitation perspective you would
be able to perform a sedentary job with no objective findings to support the contrary.” R. 285
(emphasis added). As the Seventh Circuit has made clear, dismissing an FCE out of hand
because it is not “objective” evidence, without any other explanation, falls short of the reasoned
analysis that ERISA commands of claim administrators. See Majeski, 590 F.3d at 484 (citing
Leger, 557 F.3d at 834–835).
B. Dr. Whitacre’s opinions and Holzmeyer’s job description
Second, Sedgwick’s treatment of the opinions offered by Dr. Whitacre betrays its failure
to engage in any rigorous analysis of the functional requirements of Holzmeyer’s “own
occupation” with Walgreens.
A plan administrator’s review is arbitrary and capricious when it fails to make reasonable
inquiry into the requirements of the claimant’s occupation according to its own definitional
parameters. Quinn v. Blue Cross & Blue Shield Ass’n, 161 F.3d 472, 476–477 (7th Cir. 1998),
abrogation on different grounds recognized by Huss v. IBM Medical & Dental Plan, 418 Fed.
Appx. 498, 511 (7th Cir. 2011); Kirkpatrick v. Liberty Mut. Grp., Inc., 856 F. Supp. 2d 977, 993
(S.D. Ind. 2012). As we have already noted, Dr. Whitacre opined that Holzmeyer could perform
work in a sitting position for a maximum of only four hours in a given eight-hour workday. R.
248. Without offering any further explanation, Dr. Parisien treated this FCE as establishing that
“the employee is able to perform his sedentary job” as a home pharmacist. R. 281. Sedgwick’s
letter terminating benefits adopted Parisien’s opinions. Noting only that the home pharmacist job
is a “sedentary” one, the letter stated that “[t]his position would allow for breaks from sitting as
indicated in the restrictions and limitations.” R. 285.
Plaintiff argues that Sedgwick’s conduct was per se arbitrary and capricious in this
respect because it failed to obtain a detailed, written job description for Holzmeyer’s position
and make it available to its record reviewing consultants. Docket No. 28 at 41–42. Plaintiff has
directed us to no language in the Plan creating such a fixed requirement, and Defendant is correct
in retorting that any duty to obtain a written job description arises not invariably from ERISA,
but rather, if at all, from a given plan’s language. Docket No. 30 at 29–32. The more general
strictures of procedural reasonableness, however, do require a plan administrator to establish
some form of nexus between its functional capacity findings and the applicable disability
definition. See, e.g., O’Reilly v. Hartford Life & Accident Ins. Co., 272 F.3d 955, 962 (7th Cir.
2001). Here, it was insufficient simply to observe that the position was “sedentary.” 19 It only
stands to reason that there are a number of sedentary positions that an employee would be unable
to occupy if he was capable of sitting only four hours in a given eight-hour workday—and
according to Holzmeyer himself, his “home pharmacist” job was one of them. See Pl.’s Ex. 3 at
¶¶ 3, 8 (“I was required to sit for my entire shift . . . . I was required to review on average one
As Defendant notes in its briefs, Sedgwick’s internal records also reflect that a Walgreen’s HR representative
described the position to them as a “sedentary position with the opportunity to take a break every 15 minutes from
sitting.” R. 61. However, Dr. Whitacre’s FCE, which also assumed Holzmeyer’s ability to take breaks every 15
minutes, nevertheless stated that he could sit only for four hours in a day. R. 248. The presence or absence of breaks
every 15 minutes is thus irrelevant to the central analytical shortcoming of Parisien’s opinion and Sedgwick’s final
decision—their failure to account for the discrepancy between a four-hour functional capacity and an eight-hour
prescription every 13.7 seconds and to perform one drug utilization every 4.6 seconds . . . . On
average, I was reviewing 1500-2000 prescriptions per day.”). 20 Sedgwick would have remained
within the bounds of its discretion if it, or the medical opinions on which it relied, had articulated
grounds for rejecting the restrictive functional capacity findings offered by Dr. Whitacre; it
would have remained within its discretion, alternately, if it had explained how Holzmeyer could
perform his work adequately despite being able to sit only four hours a day. It was an abuse of its
discretion, however, to pave over the significant potential discrepancy between the Whitacre
functional capacity opinion it ostensibly endorsed and the possible requirements of Holzmeyer’s
“own occupation.” See Kirkpatrick, 856 F. Supp. 2d at 993 (holding that a plan administrator’s
failure to determine the “material and substantial” duties inherent in claimant’s “sedentary” job
helped render its final conclusions on disability arbitrary and capricious).
C. Unreasonableness of Sedgwick’s initial termination decision
Sedgwick either ignored or misconstrued the opinions of Drs. Rupert and Whitacre; taken
as a whole, its failure to explain—or even acknowledge—its disregard of this evidence runs
afoul of the procedural reasonableness and clarity of communication required by ERISA.
The limiting effects of chronic pain on a person’s ability to engage in work often defy
“objective” measurement, and as such, the issue of pain presents thorny evidentiary questions for
plan administrators and reviewing courts alike. See Williams v. Aetna Life Ins. Co., 509 F.3d 317,
322 (7th Cir. 2007). The issue is particularly salient, of course, when the job in question is a
Holzmeyer’s affidavit, attached as Plaintiff’s Exhibit 3, is not part of the administrative record, and, as we have
already noted, Sedgwick’s decision-making is to be reviewed only on the basis of the record it had at its disposal at
the time it made the benefits termination decision. We include Holzmeyer’s own statement only to illustrate the
extent to which a “sedentary” job can be incompatible with an ability to sit for only four hours in a workday—and to
illustrate the extent to which Sedgwick was inadequate either in investigating the nature of Holzmeyer’s job or in
documenting and explaining the results of its investigation.
sedentary one—in other words, where pain is more likely to be the principal source of disability
rather than more easily measurable physical ailments. See, e.g., Hawkins, 326 F.3d at 918–919
(discussing the role of pain in establishing the disability of a sedentary computer programmer).
Under such circumstances, the disability determination depends at least in part on an inquiry into
the claimant’s credibility.
Here, the only two treating physicians who submitted opinions regarding the limiting
effect of Holzmeyer’s pain on his ability to engage in sedentary work both found that his
functional capacity was less than full—Dr. Rupert opined that he could sit for only one hour, Dr.
Whitacre four. Cf. Holmstrom, 615 F.3d at 775 (noting that “[e]very doctor who has actually
seen [the claimant] in the pertinent time period has concluded she is disabled”). Both Whitacre
and Rupert, an orthopedic specialist and a pain management specialist respectively, examined
Holzmeyer on multiple occasions and presumably had considerably greater opportunities to
assess the credibility of Holzmeyer’s claims of disabling pain than did the Sedgwick
consultants. 21 See Gessling v. Group Long Term Disability Plan for Employees of Sprint/United
Mgmt. Co., 693 F. Supp. 2d 856, 866 (S.D. Ind. 2010). Moreover, and contrary to Defendant’s
arguments, the opinions of the treating physicians are hardly inconsistent with the “objective”
record. Holzmeyer underwent MRI or CT scan imaging on several occasions in 2010 and 2011;
the images showed “multilevel disc bulging,” “moderate to severe stenosis,” and “chronic
degenerative disease,” among other issues. See R. 102–105 (April 7, 2010 CT scan); R. 549–550
(September 27, 2010 MRI); R. 194 (October 18, 2010 CT scan). Holzmeyer’s back problems
dated back more than two decades and persisted despite a number of surgeries and medications;
There are records of at least five appointments with Dr. Whitacre, see R. 192–194, 249, 323, 325, 386, and at least
five with Dr. Rupert. See R. 224–228, 242, 245, 237, 279. We are thus unpersuaded by Defendant’s implication that
the opinions of Whitacre and Rupert should be discounted because Holzmeyer only saw them “a few times.” See
Docket No. 32 at 5.
the record does not indicate, nor do any of Sedgwick’s consultant physicians suggest, that he was
lying, malingering, or drug-seeking in his consistent complaints of pain. 22 Cf. Holmstrom, 615
F.3d at 775; Gessling, 693 F. Supp. 2d at 866 (noting that where a claimant “aggressively
pursued for several years a range of therapies for his pain . . . [t]hose efforts are hard to reconcile
with a theory that [he] was exaggerating or lying”).
This is not the first time, of course, that this court has assessed a plan administrator’s
reasonableness in disregarding treating physicians’ opinions on the limiting effects of pain in
favor of its own doctors’ opinions that a claimant is capable of working. In Gessling v. Group
Long Term Disability Plan, 693 F. Supp. 2d 856 (S.D. Ind. 2010), we determined that the
defendant’s record reviewing doctors had failed to give due weight to treating physicians’
opinions on the functional limitations inflicted by back pain:
The court does not mean to suggest that it is reviving any requirement of special
deference to a treating physician. Far from it. But to disagree with an apparently
sound opinion of a treating physician, a plan administrator needs something much
more solid than the consulting physicians provided in this case. The medical
records did not show that [the claimant and his treating physician] must have been
correct—the problems of subjective pain and resulting limitations are difficult to
evaluate based on records alone. But after reviewing the records, the reviewing
physicians failed to come to grips with the real problem, the whole person, and
the history that corroborated his complaints of pain.
693 F. Supp. 2d at 866. See also Anderson v. Hartford Life and Acc. Ins. Co., 2010 WL 3703037,
at *7 (S.D. Ind. Sept. 10, 2010) (applying Gessling’s language to similar facts). At least where
the FCEs of a claimant’s treating physicians have a “sound” basis, an administrator must “rely on
something more solid than the opinions of the consulting physicians” to rebut them. See
Defendant points out that Plaintiff “rejected the repeated suggestions of a pain stimulator” as a means of
managing his pain. Docket No. 32 at 5 (citing R. 325–326, 530–531, 533–534).
Anderson, 2010 WL 3703037, at *7. We conclude that Sedgwick was arbitrary and capricious in
terminating Holzmeyer’s benefits in the way that it did.
Denial of Holzmeyer’s appeal
Holzmeyer argues in the alternative that Sedgwick’s denial of his appeal from the
termination of benefits fell short of the “full and fair review” mandated by ERISA. He points
principally to Sedgwick’s failure to address the fact that the Social Security Administration
(SSA) had found him to be disabled, contending that it was unreasonable to deny an appeal
without even mentioning that compelling piece of evidence in his favor. Docket No. 28 at 42–44.
ERISA requires that a plan administrator afford a claimant a “full and fair review” of its
decision to deny benefits. Holmstrom, 615 F.3d at 766. In other words, it must furnish an appeal
that takes into account all “comments, documents, records, and other information submitted by
the claimant relating to his claim.” 29 C.F.R. § 2560.603-1(h). See also Majeski, 590 F.3d at 484
(administrator must “address any reliable, contrary evidence presented by the claimant” on
appeal); Love, 574 F.3d at 397.
Although an administrator is not “forever bound” by an SSA determination of disability,
its “failure to consider the determination in making its own benefit decisions suggests arbitrary
decisionmaking.” Holmstrom, 615 F.3d at 772–773. “Disability” for social security purposes is
defined by statute as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment” which persists for at least one year or
which can be expected to lead to death. 42 U.S.C. § 423(d)(1)(A) (emphasis added). This
definition is a stringent one, and an administrator’s failure to address a claimant’s SSA disability
finding is thus especially questionable when the ERISA plan’s disability definition is less
exacting. Demaree v. Life Ins. Co. of N. Am., 789 F. Supp. 2d 1002, 1014 (S.D. Ind. 2011) (citing
Krolnik v. Prudential Ins. Co. of Am., 570 F.3d 841, 844 (7th Cir. 2009), and Herzberger v.
Standard Ins. Co., 205 F.3d 327, 333 (7th Cir. 2000)).
Here, the SSA approved Holzmeyer’s application for SSDI benefits—an application he
was required to make under the terms of the Plan. R. 298–301. Because the SSA approved his
initial application, the only documentation Holzmeyer had available was the agency’s October
22, 2011 letter to him announcing its favorable decision, which Holzmeyer submitted to
Sedgwick in conjunction with his appeal. Id. In his letter to Sedgwick announcing his client’s
appeal, Holzmeyer’s counsel Michael Hayden specifically mentioned the SSA award as new
evidence. R. 295. As Plaintiff notes, the Plan’s definition of disability is—at least arguably—less
strict than that employed to determine eligibility for Social Security disability. In contrast to the
SSA definition, the Plan recites that a claimant is eligible for long-term disability benefits if he
or she is “prevented from performing one or more of the essential duties of [his or her] own
occupation and [is] receiving appropriate care and treatment from a doctor on a continuing
basis.” Pl.’s Ex. 2 at 8 (emphasis added) Nevertheless, nowhere in its three-page letter rejecting
Holzmeyer’s appeal did Sedgwick mention his SSA award of benefits or attempt to explain why
he was disabled under the federal government’s stringent definition but not under Walgreen’s
seemingly more liberal standard. See R. 355–358. Sedgwick’s second, shorter letter rejecting his
second appeal likewise failed to mention his SSA benefits award. R. 1065.
Defendant is correct to note that “SSA awards . . . are not binding on ERISA claim
administrators.” Docket No. 30 at 33 (citing Mote v. Aetna Life Ins. Co., 502 F.3d 601, 610 (7th
Cir. 2007)). The Social Security statute requires the SSA to consider a “uniform set of federal
criteria,” unlike ERISA disability determinations that turn on “interpretation of terms in the plan
at issue,” See Barnick v. World Color Press, Inc., 88 Fed. Appx. 943, 944–945 (7th Cir. 2004)
(citations omitted); an administrator may act reasonably in denying a claimant benefits even if he
has been found eligible for SSDI. See, e.g., Anderson v. Operative Plasters’ and Cement
Masons’ Int’l Ass’n Local No. 12 Pension & Welfare Plans, 991 F.2d 356, 358–359 (7th Cir.
1993). However, though the Seventh Circuit has not spoken with uniform voice on the subject, a
number of its recent decisions have reaffirmed the general principle that favorable SSA decisions
should at least be considered, if not blindly followed. See Love, 574 F.3d at 398 (“SSA
determinations are often instructive, but they are not determinative”); Holmstrom, 615 F.3d at
773 (noting that SSA awards are particularly persuasive where the Social Security standard is
more stringent than the plan standard); Raybourne v. Cigna Life Ins. Co. of N.Y., 700 F.3d 1076,
1087 (7th Cir. 2012). But see Barnick, 88 Fed Appx. at 944–945 (stating that a plan acted
reasonably in failing to consider an SSA award where “[t]he [p]lan . . . does not require [the
administrator] to consider the SSA’s finding of disability in making its own disability
determination”). Given an administrator’s obligation to “address any reliable, contrary evidence
submitted by the claimant” on appeal, see Love, 574 F.3d at 397, we conclude that Sedgwick’s
failure to address the SSA award at all “surely constitutes an absence of reasoning.” Majeski,
590 F.3d at 484. Perhaps sound reasoning underlay Sedgwick’s determination to distinguish
Holzmeyer’s SSDI disability from its own conclusion that he remained able to work. 23 If so,
Sedgwick owed it to Holzmeyer to explain itself.
Defendant suggests in its brief that, since Holzmeyer provided only an SSDI award letter rather than a full SSA
administrative record, coupled with an ALJ’s written opinion, the Social Security award should carry “little, if any”
weight. Docket No. 30 at 34 (citing Barnick, 88 Fed. Appx. at 944–945, and Smith v. Life Ins. Co. of Am., 2011 WL
766071 (S.D. Ohio Feb. 25, 2011)). The cases Defendant has cited do not establish the proposition that a Social
Security award without an accompanying record may be more readily discounted. Barnick did conclude that a plan
administrator who failed to consider an SSDI award did not abuse its discretion, but it did not state that an SSDI
By inadequately explaining—or ignoring or misrepresenting—its disagreement with the
functional capacity evaluations provided by Drs. Rupert and Whitacre, and by failing to
articulate how its own assessment of Holzmeyer’s work capabilities interacted with his job
description, we have found that Sedgwick fell short of the reasonableness required of plan
administrators’ decision-making even under the deferential review we exercise. In similar
fashion, Sedgwick’s denial of Holzmeyer’s appeals without so much as mentioning the fact that
the Social Security Administration had found him permanently disabled raises red flags. The
Plan here vests Sedgwick with discretion in applying its terms to award or deny disability
benefits, but it does not liberate Sedgwick wholly from its ERISA-imposed responsibility to
express the reasons underlying its decision-making and to draw connections between the relevant
evidence—including evidence favorable to the claimant—and its final determination.
In holding that Sedgwick abused its discretion, we conclude that the process it followed
was deficient—not, necessarily, that its termination of benefits was substantively erroneous.
When a plan administrator “fails to provide an adequate reasoning” for its actions, warranting
summary judgment against it, “the proper remedy in an ERISA case . . . is to remand for further
findings or explanations, unless it is so clear cut that it would be unreasonable for the plan
administrator to deny the application for benefits on any ground.” Leger, 557 F.3d at 835
award letter is less valuable than an ALJ decision. See 88 Fed. Appx. at 944–945. Smith, the Southern District of
Ohio decision cited by Defendant, comes closer to endorsing Defendant’s position, but in different circumstances;
there, the court found that an award letter unaccompanied by further explanation was insufficient to outweigh the
“ample medical evidence” that supported the plan administrator’s denial of benefits. 2011 WL 766071, at *10. Even
in Smith, however, the court acknowledged the general rule that “the reviewing court should weigh [an SSDI award]
in favor of a finding that the [benefits denial] decision was arbitrary and capricious.” Id. at *9.
(quoting Tate, 545 F.3d at 563). Rare indeed is a case whose record contains such “powerfully
persuasive evidence” warranting the court to “short-circuit” the usual decision-making process
vesting discretion in the claim administrator, and this is not such a case. See Majeski, 590 F.3d at
Plaintiff’s motion for summary judgment is therefore GRANTED, and Defendant’s cross
motion for summary judgment is DENIED. We REMAND the matter for new consideration
consistent with this opinion.
IT IS SO ORDERED.
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Bridget L. O’Ryan
O’RYAN LAW FIRM
Eric P. Mathisen
OGLETREE DEAKINS NASH SMOAK & STEWART, P.C. - Valpo
Mark E. Schmidtke
OGLETREE DEAKINS NASH SMOAK & STEWART, P.C. - Valpo
Kimberly A. Jones
OGLETREE DEAKINS NASH SMOAK & STEWART, P.C.-Chicago
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