Holmstrom v. Metropolitan Life Insurance

In the

United States Court of Appeals
For the Seventh Circuit

No. 09-2173

L ANETTE H OLMSTROM,
Plaintiff-Appellant,
v.

M ETROPOLITAN L IFE INSURANCE C OMPANY, et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-06044—Robert M. Dow, Jr., Judge.

A RGUED F EBRUARY 11, 2010—D ECIDED A UGUST 4, 2010

Before K ANNE, W OOD , and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. This case illustrates the dif-
ficult problems presented by claims for disability insur-
ance by people with serious and painful conditions that
do not have objectively measurable symptoms. Plain-
tiff Lanette Holmstrom worked as a senior training
specialist at a large credit management company. She
participated in an employee welfare benefit plan admin-
istered by defendant Metropolitan Life Insurance Com-
2 No. 09-2173

pany (“MetLife”). Holmstrom stopped working in Janu-
ary 2000 when she developed a painful nerve condition
in her right arm. MetLife began paying disability benefits
under an “own-occupation” standard. Three surgeries
failed to remedy the condition, and Holmstrom was
diagnosed with complex regional pain syndrome (“CRPS”).
After Holmstrom’s “own-occupation” benefits expired,
she submitted a disability claim under the more stringent
“any-occupation” definition that applied to longer-
term benefits. MetLife approved that claim in July 2002
and began paying benefits. MetLife performed a periodic
review in 2005. It determined then that Holmstrom was
no longer disabled and terminated her benefits. After
MetLife upheld its decision on administrative appeal
(Holmstrom’s final administrative remedy), Holmstrom
filed suit in federal court under the Employee Retirement
Income Security Act of 1974 (“ERISA”). See 29 U.S.C.
§ 1132(a)(1)(B). Holmstrom voluntarily dismissed the
action when MetLife offered a second administrative
appeal, which yielded the same result. Holmstrom
then returned to federal court, filing this second ERISA
action to recover benefits. MetLife counterclaimed to
obtain a setoff based on disability insurance benefit
payments that Holmstrom received from the Social Secu-
rity Administration. In a careful opinion describing the
case as a close one, even under the deferential standard
of review, the district court granted summary judgment
for MetLife on Holmstrom’s claim for benefits and
MetLife’s counterclaim. Holmstrom v. Metropolitan Life
Ins. Co., 615 F. Supp. 2d 722 (N.D. Ill. 2009). Holmstrom
appealed.
No. 09-2173 3

We respectfully disagree with the district court. We
believe that MetLife and in turn the district court gave
undue weight to the absence of objective measurements
for Holmstrom’s impairment. There is ample corrobora-
tion that her pain has been genuinely disabling. We
also find that MetLife’s selective use of evidence and
its repeated moving of the targets for the evidence of
disability show that MetLife’s decision to terminate bene-
fits was arbitrary and capricious. We reverse and order
retroactive reinstatement of benefits for Holmstrom, sub-
ject to the set-off for Social Security disability insurance
benefits she has received. We leave the issues of attorney
fees and prejudgment interest to the district court in
the first instance.

I. The Facts
We take the facts from the administrative record com-
piled by MetLife in considering Holmstrom’s claim.
Holmstrom was employed as a senior training specialist
at Experian Information Solutions, Inc. Through this
employment, she participated in a group disability in-
surance plan underwritten and administered by MetLife.
In late 1999, Holmstrom sought the care of Dr. Eric
Lomax to treat pain, numbness, and tingling she experi-
enced in her right upper arm. In January 2000, Holmstrom
had surgery to remedy a right ulnar nerve compression
and neuropathy. The surgery provided little relief, and
her symptoms soon worsened. In June 2000, she had
another surgery to relieve what was thought to be nerve
compression. Her symptoms worsened further after
4 No. 09-2173

this second procedure, prompting her to visit a pain clinic.
The clinic doctors diagnosed CRPS Type I, a chronic
neurological syndrome characterized by severe pain.1
In March 2002, Holmstrom underwent a third surgery,
which also failed to relieve her symptoms. She saw
another pain specialist, Dr. Weber. According to MetLife’s
records, Dr. Weber “made a definitive diagnosis of . . .
complex regional pain syndrome.” It was clear to
Holmstrom and her doctors that surgery could do
nothing to help her, leaving medication as her only re-
course.2 Holmstrom’s pain medication regimen has in-

1
Holmstrom was initially diagnosed with reflex sympathetic
dystrophy syndrome (“RSDS”), also known as complex regional
pain syndrome (“CRPS”) Type I. The medical literature in the
record seems to use CRPS Type I as the more popular name for
the condition. (CRPS Type II, also known as causalgia, is
a nearly identical condition that is usually caused by an iden-
tifiable traumatic nerve injury, while the cause of a Type I
condition is less easy to discern. In terms of diagnostic criteria,
the medical literature before us does not differentiate be-
tween the two.) For more information about CRPS Type I,
see Social Security Ruling 03-2p, printed in 68 Fed. Reg. 59,971
(Oct. 20, 2003).
2
When a chronic pain condition cannot be remedied by
surgery, medical professionals often recommend physical
therapy. The record in this case, however, suggests that
physical therapy may have done more harm than good.
MetLife’s records refer to Holmstrom’s doctor’s opinion that
she has “a permanent condition and rehab[ilitation] is not
possible.” MetLife does not contend that Holmstrom should
(continued...)
No. 09-2173 5

cluded a variety of powerful drugs, including
Amitriptyline, Bextra, Clonidine, methadone, MS Contin,
MSIR, Neurontin, Oxycontin, Oxycodone, Oxyfast,
Percocet, Topamax, and (prior to its recall) Vioxx.3
Holmstrom’s symptoms persisted without improve-
ment for the next three years. MetLife’s records from
2003 describe a “high pain med[ication] regimen” causing
side effects such as confusion and memory loss, and
pain of such intensity that Holmstrom was “considering
having nerve severed since all other kinds of pain man-
agement techniques have failed.” The record reveals
no improvement through 2004 and 2005. Dr. Ted Vant,
who has been Holmstrom’s treating physician from
2004 to the time of this lawsuit, prescribed significant
doses of strong medications in an attempt to manage
her symptoms.
In early 2000, MetLife approved short-term disability
benefits under the plan. After the plan’s short-term
benefits expired, MetLife found that Holmstrom was
still unable to perform her previous job duties, and it
approved long-term disability benefits under the plan’s

2
(...continued)
have pursued physical therapy as a treatment option or that
it would help her condition in the future.
3
MetLife suggests in its brief that Holmstrom’s medications
reflect “drug-seeking behavior” spurred by addiction. How-
ever, to look into this issue, MetLife enlisted Dr. Mark Carlson,
who concluded that Holmstrom “has chronic malignant pain . . .
w/ narcotic tolerance but no addiction.”
6 No. 09-2173

“own-occupation” definition. Under the terms of the
plan, those benefits expired after 24 months, at which
point Holmstrom was required to establish that she was
unable to perform the duties of any occupation. Upon the
expiration of her “own-occupation” benefits, Holmstrom
submitted an “any-occupation” disability claim. MetLife
initially denied her claim, but after Holmstrom sub-
mitted additional medical evidence, MetLife reversed
its decision and approved benefits in July 2002.
At some point during the claim administration, MetLife
referred Holmstrom to a service that it retained to
help beneficiaries apply for Social Security disability
insurance benefits. Holmstrom applied for and qualified
to receive these benefits under the Social Security Act.
In August 2005, MetLife performed a periodic review
of Holmstrom’s benefits and decided to terminate pay-
ments to her. The letter announcing the termination
indicated that Dr. Thomas, retained by MetLife to
perform the review, “determined that there is no
medical information to support the restrictions provided
by Dr. Vant,” Holmstrom’s treating physician. The letter
added that “medical information no longer supports a
severity in your impairment preventing you from doing
your [previous] job.” The letter told Holmstrom that
she could appeal the decision by providing “office notes,
physical exam findings, EMG results, MRI results, pain
management notes, neurology notes, and/or physical
therapy notes.”
Holmstrom appealed and provided to MetLife: (1) an
August 2005 Functional Capacity Evaluation (“FCE”)
No. 09-2173 7

performed by a physical therapist; (2) a June 2005 At-
tending Physician Statement completed by Dr. Vant;
(3) Dr. Vant’s examination notes from July 6, 2004 to
July 20, 2005; (4) the results of an August 2004 nuclear
bone scan (x-ray images and the analysis of Dr. Kenneth
Sato); (5) the results of a May 2005 EMG nerve conduc-
tion test (numerical data, graphs, and the analysis of
Dr. Gary Klein); (6) the Social Security Administration
notice of award; and (7) letters from three family members.
The August 2005 FCE was only one page long and
included very little testing of Holmstrom’s arm, but it
noted that she was “unable to [support any body] weight
on hands due to pain.” Dr. Vant’s detailed, four-
page statement included the CRPS diagnosis and con-
cluded that Holmstrom suffered from a “permanent
disability” and could perform essentially no hand func-
tion. Dr. Vant’s examination notes included prescriptions
for pain medications such as Amitriptyline, Clonidine,
Elavil, Hydrocodone, and “large dose[s]” of methadone.
He noted “no real changes,” “continue[d] sweating,” and
“spasm,” and said that Holmstrom was “still feeling
numb.” Dr. Sato’s bone scan analysis stated that there
was normal blood flow to the arm and that “no abnormal-
ities of either arm, hand or wrist are seen.” Dr. Klein’s
EMG was “negative” in that it “rule[d] out nerve entrap-
ment syndrome”, the malady that Holmstrom’s doctors
had thought she suffered from before her surgeries.
Dr. Klein found a “minor” irregularity in the nerves of
her forearm and dysesthesia around the right elbow. He
otherwise found her nerves to be “absolutely normal” and
her “sensory responses [to be] within normal limits,” and
8 No. 09-2173

he noted that her “power is normal [and] [r]eflexes are
well preserved.” However, regarding her general condi-
tion, Dr. Klein stated that “her pain and dysesthesia
continue and if anything, are slowly getting worse.” The
family testimonials described in detail how Holmstrom’s
condition affected her everyday life and the lives of
those around her, including descriptions of her sig-
nificant pain, physical deficiencies, and compromised
mental function from pain medication. The Social Security
notice of award stated only that the government had
concluded that Holmstrom was totally disabled under
its stringent standards.4
MetLife denied the appeal, notifying Holmstrom in
a February 2006 letter that summarized the opinion of
Dr. Janet Collins, the physician retained by MetLife to
perform the medical review. Dr. Collins did not examine
Holmstrom. MetLife’s letter addressed Holmstrom’s
claims of intractable pain, significant physical limita-
tions, and cognitive deficiency as identified by Holmstrom
and Dr. Vant. MetLife found, however, that the lack

4
The Social Security Act 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 last for a continuous period of not
less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). This defini-
tion is more stringent than the plan’s “any occupation”
disability definition, which describes disability as being
“unable to earn more than 60% of your Indexed Predisability
Earnings from any employer in your Local Economy at any
gainful occupation for which you are reasonably qualified . . . .”
No. 09-2173 9

of “objective findings to support ongoing total disability”
prevented MetLife from determining whether her dis-
ability was genuine. MetLife stated that the August 2005
FCE was unreliable based on the “emotional component
displayed by Ms. Holmstrom during the exam” and
her “inability or unwillingness” to move parts of her
body “known not to be affected by her pain complaints,”
specifically her lumbar spine. MetLife concluded by
stating that it could have reached a different decision
on disability if Holmstrom had provided another FCE
“in order to more precisely quantify appropriate restric-
tions and limitations” and a “battery” to “assess her
neurocognitive status.”
Holmstrom then filed suit in federal court. The parties
voluntarily remanded the case for a third administrative
review. In an effort to comply with the requests of the
February 2006 letter, Holmstrom submitted another
FCE and the results of a battery of cognitive analysis
tests called a Schubert General Ability Battery.
This four-page report on the two-day FCE was much
more detailed than the FCE report from 2005. It con-
tained more tests germane to Holmstrom’s specific
pain complaints. Each test result included detailed num-
erical data and was specifically interpreted to demon-
strate the result’s significance with regard to Holmstrom’s
ability to perform a job in the “sedentary” exertion cate-
gory (the least demanding, as defined by the Depart-
ment of Labor). The new FCE concluded that her
function was below the sedentary level for most tests
involving her hands or arms. To determine endurance
10 No. 09-2173

and consistency, each test was performed on both days.
On the second day, “all measured parameters recorded a
reduction of about 20%, with increased pain and discom-
fort, placing Mrs. Holmstrom in the low endurance cate-
gory.” The FCE concluded that it could not recommend
any path for returning to work given Holmstrom’s sig-
nificantly low function and endurance. The FCE stated
that it was conceivable that Holmstrom might “do a
minimum amount of work while using vocation-specific
voice recognition software . . . relieving her of the chal-
lenges of sitting and typing.” If she did so, she could
work a maximum of only three hours per day, divided
into six sessions of 30 minutes each, and only two to
three days per week. The FCE tempered this observa-
tion even further, stating that this possible form of part-
time work would “depend, however, to a large extent, on
her mental and cognitive status, reflecting her mental
ability . . . .”
The Schubert General Ability Battery, performed by
Dr. Kent Noel, Ph.D., revealed significant cognitive
impairment. It found that Holmstrom’s intelligence
quotient had diminished from 123 in 1991 (as established
by the same type of testing) to 104 in 2007. The 2007
results put her in just the fifth percentile among manage-
ment candidates. Dr. Noel concluded that these results
“strongly suggest that Ms. Holmstrom would experience
difficulty focusing, retaining, processing, and making
decisions. If considered for a return to the workforce,
it would be at the most menial level using her
physical skills, if these were suitable.”
No. 09-2173 11

MetLife enlisted Dr. Robert Manolakas and Dr. Carol
Walker to consider the new FCE and the Schubert General
Ability Battery, respectively. Dr. Manolakas stated that
Holmstrom had physical limitations “but not severe
limitations.” Rejecting the March 2007 FCE, he stated:
the report did not include the raw data or validity
observations . . . so it is unclear on what basis precisely
the lack of performance is due to: ie, physical inca-
pacity or poor effort for whatever reason. The lan-
guage suggests poor effort or endurance, but without
the entire report or a repeat study this is not able to
be determined for sure.
Dr. Manolakas challenged the diagnosis of CRPS alto-
gether, stating that it had “not been established by the
available medical data in [the] file” and “the physical exam
findings to support [it] are currently few . . . .”
Addressing Holmstrom’s cognitive impairments,
Dr. Walker rejected the Schubert General Ability Battery
results and Dr. Noel’s conclusions:
[H]e is a not a neuropsychologist, but a clinical psy-
chologist, and does not perform neuropsychological
evaluations. Dr. Noel has apparently based his opin-
ions on a test that is developed to be used for
an estimate of intellectual capacity and one that
does not have appropriate measures of symptom
validity. Such a measure will not allow an indi-
vidual to make inferences regarding the person’s
overall cognitive ability . . . . [C]hanges in individ-
ual performances cannot be determined to be re-
12 No. 09-2173

liable or valid without specific measures of symptom
validity.
Dr. Walker found that the medical documentation did not
support cognitive impairment.
Before MetLife’s final decision, Holmstrom responded
to the quoted reports with letters from Dr. Vant and
Dr. Noel. Dr. Vant asserted that no objective tests
existed for CRPS, and he said that he had observed
obvious physical deficits upon examination that were
fully corroborated in the detailed FCE. Dr. Vant also
added more detail about Holmstrom’s right arm range
of motion—specifically, how far in each direction she
was able move her arm. Dr. Manolakas responded with
an addendum to his report in which he acknowledged
that Dr. Vant’s latest letter offered data of greater, if not
dispositive, significance. He stated that the letter, com-
bined with the evidence already in the record, led
him to conclude that “more likely than not, the right
upper extremity would be limited currently to occasional
handling and grasping and fingering, in an eight hour
work day, at least. It is up to [MetLife] if they want
to consider medical evidence in the letter sufficient
to support this restriction of limitation, but I do.”
Dr. Manolakas added that “an independent physical
exam and file review is a higher level of medical
evidence . . . especially in a case such as this,” and con-
cluded that “an independent [medical examination] with
file review would be in order” for the next step of claims
administration. MetLife did not take this recommenda-
tion, and no independent examination or review was
ever conducted.
No. 09-2173 13

Dr. Noel defended his expertise and credentials (specifi-
cally, his extensive experience in evaluating cognition
for the purposes of workplace function) and the ability
of the Schubert General Ability Battery to assess ac-
curately Holmstrom’s cognitive deficiencies and their
impact on her ability to work. Dr. Walker responded with
an addendum stating: “While intellectual assessment
is often part of the battery of the neuropsychologist,
it is not used alone to make a determination of an indi-
vidual’s abilities.” On October 29, 2007, after receiving
these additional reports, MetLife again upheld its deter-
mination.
Left with no further administrative recourse, Holmstrom
filed this lawsuit. MetLife counterclaimed to recover
payments it had made that should have been discounted
based on the Social Security benefits that Holmstrom
had received. In the district court, Judge Dow wrote a
detailed opinion granting summary judgment for
MetLife on both Holmstrom’s ERISA claim and the coun-
terclaim, and Holmstrom appealed.

II. Discussion
A. Standard of Review
The district court’s grant of summary judgment is
reviewed de novo. Love v. National City Corp. Welfare
Benefits Plan, 574 F.3d 392, 396 (7th Cir. 2009). Judicial
review of an ERISA administrator’s benefits determina-
tion is de novo unless the plan grants the administrator
discretionary authority to determine eligibility for
14 No. 09-2173

benefits or to construe the terms of the plan. Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). When the
administrator has such discretionary authority, as the
vast majority now do, the court applies a more deferen-
tial standard, seeking to determine only whether the
administrator’s decision was “arbitrary and capricious.”
Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, ___, 128
S. Ct. 2343, 2348 (2008); Jenkins v. Price Waterhouse Long
Term Disability Plan, 564 F.3d 856, 860-61 (7th Cir. 2009).
The plan here provided such discretionary authority, so
we review under the arbitrary-and-capricious standard.
Review under this deferential standard is not a rubber
stamp, however, and “we will not uphold a termination
when there is an absence of reasoning in the record to
support it.” Hackett v. Xerox Corp. Long-Term Disability
Income Plan, 315 F.3d 771, 774-75 (7th Cir. 2003).5
ERISA also requires that “specific reasons for denial be

5
Beginning with Fuller v. CBT Corp., 905 F.2d 1055 (7th Cir.
1990), we have sometimes described the arbitrary-and-capri-
cious test as whether the administrator’s decision was “down-
right unreasonable.” Attorneys for ERISA plan administrators
are fond of quoting this colloquial phrase in their briefs to
this court and to district courts within the circuit. The phrase
should not be understood as requiring a plaintiff to show that
only a person who had lost complete touch with reality
would have denied benefits. Rather, the phrase is merely a
shorthand expression for a vast body of law applying the
arbitrary-and-capricious standard in ways that include focus
on procedural regularity, substantive merit, and faithful
execution of fiduciary duties.
No. 09-2173 15

communicated to the claimant and that the claimant be
afforded an opportunity for full and fair review by the
administrator.” Tate v. Long Term Disability Plan for
Salaried Employees of Champion International Corp. No. 506,
545 F.3d 555, 559 (7th Cir. 2008) (internal quotations
omitted).6
An administrator’s conflict of interest is a key consider-
ation under this deferential standard. “In conducting
this review, we remain cognizant of the conflict of
interest that exists when the administrator has both the
discretionary authority to determine eligibility for
benefits and the obligation to pay benefits when due.”
Jenkins, 564 F.3d at 861, citing Glenn, 128 S. Ct. at 2346. In
such cases, like the one before us, the conflict of interest
is “weighed as a factor in determining whether there is
an abuse of discretion.” See Glenn, 128 S. Ct. at 2350
(internal quotations omitted).7

6
In its recent decision in Hardt v. Reliance Standard Life Ins. Co.,
130 S. Ct. 2149 (2010), the Supreme Court specifically abrogated
one of Tate’s holdings regarding when a claimant is entitled
to attorney fees. All other holdings in Tate remain good law.
7
For ERISA purposes, “the arbitrary-and-capricious stand-
ard . . . is synonymous with abuse of discretion . . . .” Raybourne
v. Cigna Life Ins. Co. of New York, 576 F.3d 444, 449 (7th Cir.
2009). “Nit-pickers might argue that there is a distinction”
between the two standards, but they are simply “different
ways of saying the same thing.” Jenkins, 564 F.3d at 861 n.8
(internal quotations omitted).
16 No. 09-2173

B. Disability Determination
Holmstrom has shown that MetLife’s termination of
benefits was arbitrary and capricious for several reasons.
She has also raised several arguments that are not per-
suasive, which we address first.
First, Holmstrom places great emphasis on MetLife’s
“abrupt termination of benefits” despite its prior deter-
mination that her “functional deficits [would] likely be
permanent.” Holmstrom Br. 16, 19. Holmstrom asserts
that this note made in 2000 meant “the insurer was obli-
gated to continue paying her for another 25 years,” the
remainder of the plan. Holmstrom Br. 19. We reject
this argument. ERISA does not prohibit a plan admin-
istrator from performing a periodic review of a benefi-
ciary’s disability status. See Leger v. Tribune Co. Long Term
Disability Benefit Plan, 557 F.3d 823, 832 (7th Cir. 2009)
(“We are not suggesting that paying benefits operates
forever as an estoppel so that an insurer can never change
its mind . . . .”), quoting McOsker v. Paul Revere Life Ins. Co.,
279 F.3d 586, 589 (8th Cir. 2002) (quotation marks omit-
ted). The plan administrator is entitled to seek and con-
sider new information and, in appropriate cases, to
change its mind.
Second, Holmstrom argues that MetLife could not
properly terminate her benefits without proving that her
condition had actually improved. We have rejected this
argument before in Leger, 557 F.3d at 831-32, though we
ruled that the administrator’s denial decision in that case
was arbitrary for other reasons. One case examiner’s five-
year-old opinion of permanence, given before the benefi-
No. 09-2173 17

ciary underwent another surgery and received a new
diagnosis, did not bind the administrator indefinitely.
This circuit and the Eighth Circuit have noted that
“the previous payment of benefits is just one ‘circum-
stance,’ i.e., factor, to be considered in the court’s review
process; it does not create a presumptive burden for
the plan to overcome.” See Leger, 557 F.3d at 832 (con-
sidering the prior determination among other factors to
conclude that administrator’s decision was arbitrary
and capricious), citing McOsker, 279 F.3d at 589 (same).
The prior determination does not decide the case. It is
merely part of the overall set of facts that we consider.
Third, Holmstrom argues that Glenn gave the “unequiv-
ocal directive” that district courts should consider an
administrator’s adverse judgments in other federal cases
as evidence supporting a conflict of interest. Holmstrom
Br. 17. In doing so, Holmstrom relies on the portion of
Glenn that states that a conflict “should prove more
important (perhaps of great importance) where circum-
stances suggest a higher likelihood that it affected the
benefits decision, including, but not limited to, cases
where an insurance company administrator has a history
of biased claims administration.” 128 S. Ct. at 2351, citing
John H. Langbein, Trust Law as Regulatory Law: The
UNUM/Provident Scandal and Judicial Review of Bene-
fit Denials Under ERISA, 101 Northwestern U. L.
Rev. 1315, 1317-21 (2007). Holmstrom contends that this
passage allows her to use a string of federal decisions
reversing MetLife administrative denials as evidence
that MetLife’s inherent conflict of interest dominates and
corrupts its claims determinations. Holmstrom misreads
18 No. 09-2173

this portion of Glenn. Glenn did not invite a “batting
average” approach, assessing conflict by comparing the
number of benefits decisions affirmed and reversed in
federal court. (The sampling problems with that ap-
proach would be daunting.) Rather, to support the
quoted assertion, the Glenn Court cited a law review
article that detailed the long and unfortunate history of
the inner workings of the insurance company Unum/
Provident. This history was not a list of unfavorable
court decisions. It was a detailed, fact-intensive account
of systemic flaws and misconduct in the company’s
administrative review process, supported by discovery,
investigative journalism, and the accounts of inside
whistleblowers. See Langbein, supra, at 1317-21.
MetLife is one of the country’s largest insurance com-
panies. It makes many thousands of administrative bene-
fits decisions every year. It is not surprising that some of
its claim decisions have led to litigation and that it has
lost some of those cases. Surely in others, perhaps many
others, it has won and no abuse of discretion was
found. Holmstrom does not provide that list for com-
parison. But whether MetLife’s cases were won or lost,
abuse of discretion is a fact-specific inquiry. This court
is concerned only with Holmstrom’s claim and the
context and circumstances of MetLife’s denial as demon-
strated by the administrative record in this case. Without
evidence of systematic bias like that in the Langbein
article cited in Glenn, the evidence that MetLife has been
found to have abused its discretion toward a few other
plaintiffs bringing other claims in other courts has little
value. See Gessling v. Group Long Term Disability Plan for
No. 09-2173 19

Employees of Sprint/United Management Company, 693
F. Supp. 2d 856, 872 (S.D. Ind. 2010).
In addition to these weak arguments, however,
Holmstrom has shown several other reasons for
finding that MetLife acted arbitrarily and capriciously in
terminating her benefits and then sticking with that
decision through the administrative reviews for which
Holmstrom provided exactly the sort of detailed infor-
mation that MetLife had demanded.

1. “Normal” Test Results
To support its determination, MetLife has relied on the
results of the nuclear bone scan and EMG. MetLife sug-
gests that the “normal” results of these tests undermined
the diagnosis of CRPS and provided “further evidence
that the FCEs [functional capacity evaluations] were not
a reliable objective measure of Holmstrom’s functional
capacities.” MetLife Br. 28-29. The record shows beyond
reasonable dispute, however, that these tests only some-
times reveal indicia of CRPS and that severe CRPS is not
inconsistent with normal bone scan or EMG findings.
MetLife cites the CRPS “Concise Review for Clinicians”
in the peer-reviewed medical journal Mayo Clinic Pro-
ceedings to support its reliance on the test results. The
cited article rejects MetLife’s position:
Although no specific diagnostic test is available for
CRPS, several tests can be supportive in making the
diagnosis, but the most important role of testing is to help
rule out other conditions . . . . These tests attempt to
20 No. 09-2173

identify abnormal sympathetic activity or abnormal
limb blood flow, but as mentioned previously, these
phenomena are not always present.
Richard H. Rho, et al., Complex Regional Pain Syndrome,
77 Mayo Clinic Proceedings 174, 175 (2002), http://www.
mayoclinicproceedings.com/content/77/2/174.full.pdf
(emphasis added) (last visited July 30, 2010).8
In their analyses of the test results, neither Dr. Sato
nor Dr. Klein questioned the CRPS diagnosis or the
severity of Holmstrom’s symptoms. Dr. Sato declined to
conclude anything about Holmstrom’s arm. Dr. Klein’s
only conclusions from the negative result were that it
“rule[d] out nerve entrapment syndrome” and that “her
pain and dysesthesia continue and if anything, are
slowly getting worse.” Dr. Vant’s letters to MetLife re-
peatedly explained why these test results were not sig-
nificant. Yet there is no acknowledgment of his asser-
tion (or of the specialists’ actual conclusions) in any of
MetLife’s physician reports or disability determina-
tions. Nor has MetLife ever acknowledged the clinically
observable indicia of CRPS that Dr. Vant included in his
examination notes and letters—hyperhidrosis, spasm,
sweating, and temperature differences—all of which
support a diagnosis of CRPS according to MetLife’s own

8
MetLife also cites a Mayo Clinic website with a much less
comprehensive overview of CRPS. The site states that a
bone scan or nervous system test might provide clues, but
it cautions: “There is no single test that can definitively
diagnose complex regional pain syndrome.”
No. 09-2173 21

sources. Contrary to MetLife’s assertion, the bone scan
and EMG results do not contradict the diagnosis of CRPS
or undermine the validity of the FCEs.9

2. Functional Capacity Evaluations (FCEs)
Subjectively painful conditions like CRPS and
fibromyalgia pose difficult problems for private disability
insurance plan administrators and the Social Security
Administration, who understandably seek to make deci-
sions based on the most objective evidence available.
But we have rejected as arbitrary an administrator’s
requirement that a claimant prove her condition with
objective data where no definitive objective test exists
for the condition or its severity. See Hawkins v. First
Union Corporation Long-Term Disability Plan, 326 F.3d 914,
918-19 (7th Cir. 2003) (reversing denial of benefits where
administrator determined that there were “no objective

9
The Social Security Administration has compiled diagnostic
criteria for CRPS, which involves “persistent, intense pain”
associated with five potential observable criteria. None of
these criteria involve laboratory testing such as a bone scan
or EMG (with the one exception that CRPS sometimes ac-
companies osteoporosis, which is observable in a bone scan).
One group of criteria, autonomic instability (hyperhidrosis,
spasm, sweating, temperature differences, etc.) has been
observed and documented by Dr. Vant in his examination
notes and letters. See SSR 03-2p, printed in 68 Fed. Reg. 59,971
(Oct. 20, 2003). Of these, MetLife acknowledged only the
temperature differences but discounted them as “unspecified.”
22 No. 09-2173

findings to support restrictions,” and noting that pain
often cannot be detected by laboratory tests and that the
amount of pain and fatigue that a particular case produces
cannot be tested objectively); Diaz v. Prudential Ins. Co. of
America, 499 F.3d 640, 646 (7th Cir. 2007) (claimant’s
pursuit of extensive treatment including heavy medica-
tion and repeated surgical procedures “supports an
inference that his pain, though hard to explain by refer-
ence to physical symptoms, was disabling”).
At the same time, even in these difficult cases involving
conditions where subjective symptoms of pain are not
manifest in objective clinical data, we have allowed a
plan administrator to require a certain degree of “ob-
jectivity” in terms of the measurement of physical limita-
tions as observed in a functional capacity evaluation. “A
distinction exists however, between the amount of
fatigue or pain an individual experiences, which as
Hawkins notes is entirely subjective, and how much an
individual’s degree of pain or fatigue limits his functional
capabilities, which can be objectively measured.” Williams
v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir. 2007). The
district court correctly identified this distinction and
focused on it. However, the quantity and quality of
the functional capacity and other data that Holmstrom
provided to MetLife readily distinguish this case from
Williams.10

10
Williams observed the same distinction in the First and
Eighth Circuits. See 509 F.3d at 322-23, citing Boardman v.
Prudential Ins. Co. of America, 337 F.3d 9, 16 n.5 (1st Cir. 2003)
(continued...)
No. 09-2173 23

Like Holmstrom, the claimant Lee Williams suffered
from a condition (chronic fatigue syndrome) that is di-
agnosed by subjective patient complaints. And like
MetLife, the administrator in Williams (Aetna) rejected
the claimant’s functional capacity data as insufficient.
Unlike the present case, however, the Williams record
“lacked any specific data reflecting Williams’s func-
tional impairment.” Williams, 509 F.3d at 323. Williams
never presented an actual FCE or any measurement of
specific limitations. He offered only his treating physi-
cian’s unexplained conclusions that he could perform
only low-stress jobs and could not lift anything over ten
pounds. Aetna gave this physician a functional capacity
questionnaire asking for the results of very specific func-
tional tests (e.g., how long Williams was able to stand
before needing to sit down), which were answered “un-
known” or “untested.” No specific tests of physical
ability or endurance were ever performed.
In this case, Holmstrom provided a physician opinion
similar to the one in Williams, but she also presented two

10
(...continued)
(“While the diagnoses of chronic fatigue syndrome and
fibromyalgia may not lend themselves to objective clinical
findings, the physical limitations imposed by the symptoms
of such illnesses do lend themselves to objective analysis.”), and
Pralutsky v. Metropolitan Life Ins. Co., 435 F.3d 833, 838-40
(8th Cir. 2006) (finding that it was not unreasonable for an
administrator to request objective functional capacity evidence
beyond doctor statements that simply repeated the claimant’s
subjective complaints of pain and fatigue).
24 No. 09-2173

FCEs, at least one of which (from 2007) provided exactly
the kind of detailed and specific information that the
Williams court found lacking. At oral argument, MetLife
urged us to take a critical look at the FCEs under the
Williams standard. We have examined them, and we
find that the 2007 FCE provides objective sup-
port showing functional limitations amounting to total
disability.11
The 2007 FCE report included 20 different detailed tests.
Six examined arm function, and seven examined hand
function. Each result included specific weight and time
data, and applied that data to the lowest possible occupa-
tional exertion category as determined by the Depart-
ment of Labor. Holmstrom fell short of the requirements

11
The 2007 FCE was an attempt to remedy the flaws that MetLife
perceived with one from 2005, which Holmstrom had submitted
for her initial prior appeal. That FCE contained very little
data, commentary, or analysis, and contained only one test of
Holmstrom’s upper extremities—measuring her ability to
perform repeated push-ups (at zero). If we were to look in
isolation only at MetLife’s conclusion that the 2005 FCE was
insufficient to show how Holmstrom’s pain or weakness
might limit her functional abilities, we would not find that
conclusion to be arbitrary or capricious. However, the 2007
FCE is the pertinent evaluation for this appeal and is fully
sufficient in both its degree of analysis and its content. It
adequately demonstrates the extent of Holmstrom’s functional
limitations. The broader record from 2005 and later also
contains a number of other indications that MetLife’s 2005
termination of benefits was arbitrary and capricious.
No. 09-2173 25

of sedentary work in the majority of these tests. The
tests were repeated one day later, with “all measured
parameters recorded [at] a reduction of about 20%,”
which suggested consistency of effort and “very poor
endurance.” Those results indicated that it was unlikely
that Holmstrom would be able to sustain even her
severely compromised level of function over consecutive
workdays, as needed for full-time employment.
Despite the thoroughness of this 2007 FCE, MetLife
rejected it. MetLife was obliged to explain why it
found the FCE unreliable. See Leger, 557 F.3d at 834-35
(finding administrator’s decision arbitrary). MetLife
offers several explanations, but they lack substance
and reflect arbitrary action.
In addressing the 2007 FCE, Dr. Manolakas opined
(and MetLife adopted the conclusion) that “it is unclear
on what basis precisely the lack of performance is due to:
physical incapacity or poor effort.” He stated: “The lan-
guage suggests poor effort and endurance, but without
the entire report or a repeat study this is not able to be
determined for sure.” In other words, according to
Dr. Manolakas, who was only reviewing the report, there
was no way to tell whether Holmstrom was faking
her poor function. The professionals who conduct FCEs
for the purposes of occupational assessment are aware
of this common concern, and they look for disability
exaggeration. The 2007 FCE report makes no observa-
tion of any kind that might call Holmstrom’s effort into
doubt. MetLife ignores the consistency of the FCE, with
nearly identical reductions in measured performance
26 No. 09-2173

on the second day across “all measured parameters.”
Nothing in this FCE or those from 2000 and 2005 calls
Holmstrom’s effort into question.1 2
MetLife also challenges the validity of the 2007 FCE
procedures, arguing that a “valid FCE” must include “raw
data” and “algorithms for scoring functionality.” MetLife
Br. 30. MetLife further cites sources that purport
to explain how an FCE should be done. However, the
cited sources in MetLife’s brief are consistent with the
methodology used in the 2007 FCE, and at oral argu-
ment MetLife counsel was unable to explain how a
“valid” FCE would differ from this one.
We look then to the 2000 FCE, which MetLife found
satisfactory, and we see no material differences—certainly
nothing in the way of “raw data” or “algorithms”—with
the exception of range of motion data, which Dr. Vant
had provided to Dr. Manolakas’ satisfaction in a sep-
arate letter prior to MetLife’s 2007 decision confirming
the termination of benefits. When questioned at oral ar-
gument about the perceived differences in the 2000 and

12
MetLife points to the physical therapist’s note in the 2005
FCE that Holmstrom “displayed emotional behavior such
as crying” when discussing pain and undergoing a test of her
functional limitations. MetLife argues that her crying sug-
gested poor effort and undermined the genuineness of her
pain complaints. That is sheer speculation. The evidence
could easily support the opposite conclusion. We, and those
who pay for disability insurance, are entitled to rely on the
report of the FCE and the professionalism of the examiner
instead of such speculation.
No. 09-2173 27

2007 FCEs, MetLife’s counsel answered that the 2000 FCE
contained five things that the 2007 one did not: range of
motion data, strength tests, reflex tests, sensory tests, and
detailed pain descriptions. Again, Dr. Vant provided
range of motion data to MetLife’s physician’s satisfac-
tion. The 2007 FCE contained 10 strength tests (the 2000
FCE also contained 10) that show no discernable dif-
ference in character or detail from the strength tests of
2000. While the 2007 FCE had no reflex tests, the 2000
FCE explicitly indicated that Holmstrom’s right elbow
reflex was not tested. The 2007 FCE lacked sensory
testing, but her sensory testing results in the 2000 FCE
were normal. Finally, there is no appreciable difference
in the level of detail between the 2000 and 2007 pain
descriptions. There is no reason to think that an FCE
performed in 2007 under the same standards as the 2000
FCE would have produced a conclusion any different from
the one that Holmstrom submitted for her final appeal.
Furthermore, MetLife never communicated to
Holmstrom that it would require an FCE of the same
format and level of detail as the one from 2000. At oral
argument, MetLife’s counsel conceded that MetLife
never communicated to Holmstrom these specific crite-
ria for an FCE that it later demanded.
MetLife has therefore failed to explain its rejection of
the conclusions of the 2007 FCE, and “there is an ‘absence
of reasoning in the record’ to support [MetLife’s] con-
clusion” that the 2007 FCE does not establish disability.
See Leger, 557 F.3d at 835, quoting Tate, 545 F.3d at 559.
28 No. 09-2173

3. Social Security Determination
The Social Security Administration determined that
Holmstrom was completely disabled and awarded disabil-
ity benefits. As mentioned above, the Social Security
standard for total disability is more stringent than the
plan’s standard for any-occupation disability at issue
here. Moreover, it was MetLife that insisted that
Holmstrom apply for Social Security benefits. As a
result, MetLife received a benefit from the Social Security
determination that she was disabled, but then failed to
consider that determination when it terminated benefits.1 3
This issue was an important factor in the Supreme
Court’s analysis in Glenn. Approving the Sixth Circuit’s
analysis, the Glenn Court stated:
In particular, the [circuit] court found questionable
the fact that MetLife had encouraged Glenn to argue
to the Social Security Administration that she could
do no work, received the bulk of the benefits of her
success in doing so . . . and then ignored the agency’s
finding in concluding that Glenn could in fact do

13
Under the plan, Holmstrom was required to apply for
Social Security benefits. If they were granted, MetLife’s pay-
ment liability under the plan would be reduced by the
amount of those benefits. Holmstrom collected Social
Security benefits, but MetLife’s payment reduction was never
realized. As explained below, the parties have stipulated that
MetLife has a right to reimbursement of these funds, so for
purposes of this inquiry, Holmstrom’s Social Security deter-
mination benefitted MetLife.
No. 09-2173 29

sedentary work. This course of events was not only
an important factor in its own right . . . but also
would have justified the court in giving more weight
to the conflict (because MetLife’s seemingly incon-
sistent positions were both financially advantageous).
Glenn, 128 S. Ct. at 2352 (citations omitted); see also
Raybourne, 576 F.3d at 450 (“after Glenn, [the administra-
tor]’s advocacy of a disability finding before the SSA
should have been treated as a serious concern for the
court to consider”) (internal quotations omitted); Ladd
v. ITT Corp., 148 F.3d 753, 756 (7th Cir. 1998) (reversing
denial of benefits in part because administrator sup-
ported claimant’s efforts to demonstrate total disability
to the Social Security Administration, then denied
claimant was totally disabled even though her condi-
tion had not improved).
An administrator is not forever bound by a Social
Security determination of disability, but an admin-
istrator’s failure to consider the determination in making
its own benefit decisions suggests arbitrary decision-
making. Glenn, 128 S. Ct. at 2352. This is especially so
when the Social Security determination was made under
a similar or more stringent disability definition, as it was
here. In its denial letters, MetLife never stated why it
disagreed with the Social Security determination; rather,
it stated only that Black & Decker Disability Plan v. Nord,
538 U.S. 822 (2003), essentially dissolved any relevance
of Social Security determinations in ERISA cases. The
discussion of Social Security benefits in Glenn directly
rejected this flawed interpretation of Nord.
30 No. 09-2173

4. Medical History
Holmstrom’s overall objective medical history is also
highly relevant. See Diaz v. Prudential Ins. Co. of America,
499 F.3d 640, 646 (7th Cir. 2007) (finding medical history
that included heavy medication and repeated surgical
procedures to be relevant in determining that claimant
was disabled). While the significance of a procedure
or a prescription can be disputed, the existence of
such things when established in the record cannot be.
Holmstrom has undergone three surgeries and continues
to endure what is, even by MetLife’s doctors’ accounts, a
heavy regimen of pain medication. MetLife claims that
the surgeries have resolved her condition, despite the
utter lack of support for this conclusion and the wealth
of medical opinion (including from MetLife consultants)
that surgical options were abandoned because more
operations would be futile. MetLife speculates that the
medication regimen does not support the existence of
genuine pain but instead exists only to feed drug-seeking
behavior. MetLife attorneys and consultants support
this conclusion with no evidence and ignore evidence of
their own doctor’s conclusion that her pain is genuine
and that she does not suffer from addiction, a conclusion
reached by MetLife’s doctor after an in-person examina-
tion of Holmstrom.
We do not suggest that a Social Security disability
finding, multiple and unsuccessful surgeries for pain
relief, and a heavy pain medication regimen will together
always compel an award of benefits. But with this
evidence in the record, a plan administrator must
No. 09-2173 31

address it and provide a reasonable explanation for
discounting it. See Leger, 557 F.3d at 835. In this case, the
Social Security award, the surgeries, and the medica-
tion provide strong evidence in support of a finding
of continuing disability. MetLife’s explanations for dis-
counting them are not supported by the record.

5. Cognitive Impairments
MetLife also acted arbitrarily and capriciously in dis-
counting evidence of Holmstrom’s cognitive impair-
ments resulting from her heavy pain medication. In its
2006 denial, MetLife stated that Holmstrom could sub-
stantiate her claim of cognitive impairments with a
“battery” to “assess her neurocognitive status.” Without
more specific direction from MetLife, Holmstrom sub-
mitted a Schubert General Ability Battery performed by
Dr. Noel, a Ph.D. with significant experience in evaluating
cognition for the purposes of workplace function. The
battery of tests replicates tests that Holmstrom had
done in 1991 under controlled conditions, allowing com-
parisons of her current abilities. Dr. Noel shared the
numerical results of the battery and expressed extreme
doubt that Holmstrom could resume employment: “If
considered for a return to the workforce, it would be at
the most menial level using her physical skills, if these
were suitable.” MetLife’s reviewing doctor, Dr. Walker,
opined that Dr. Noel was not the proper professional
to conduct cognitive testing because he was “not a neuro-
psychologist, but a clinical psychologist.” Dr. Walker
rejected the battery itself because it did “not have appro-
32 No. 09-2173

priate measures of symptom validity.” Although Dr. Noel
responded with a detailed defense of his credentials
and the battery, MetLife still rejected Holmstrom’s cogni-
tive impairments as insufficiently substantiated. MetLife
never explained specifically what it meant by “battery” of
“neurocognitive testing” or “symptom validity,” or why
a neuropsychologist was necessary while it deemed
Dr. Noel’s qualifications and training insufficient, other
than the need for the proper level of experience, which
Dr. Noel attested (without refutation) that he pos-
sessed. (Dr. Noel was obviously frustrated by what he
saw as Dr. Walker’s wrong assumptions about his qualifi-
cations and training.)
ERISA requires plan administrators to provide
claimants a reasonable opportunity for “a full and fair
review” of the denial decision. 29 U.S.C. § 1133(2). Given
the nature of the exchange and the data provided, we
find MetLife’s rejection of the cognitive evidence to be
arbitrary and capricious, failing to provide a full and
fair review. MetLife acted within its rights by asking for
tests showing Holmstrom’s cognition, but its request
was general. MetLife provided no guidance as to what
testing she should provide, much less how or by whom
it should be done. The phrase “neurocognitive testing” did
not give Holmstrom fair notice of the additional criteria
that MetLife later insisted would need to be met before
it would give weight to the results. When an admin-
istrator asks for additional information in broad terms, it
is too easy to find later a reason to deem what it was
given to be insufficient. If the administrator believes that
a procedure must have certain characteristics, or that it
must be performed by a certain kind of professional, it
No. 09-2173 33

must provide at least some level of guidance, unless the
test sought is so well-known that a claimant or her
attorney or other representative can reasonably be ex-
pected to know what the administrator expects. MetLife
provided no such guidance here.
Also, of course, if a plan administrator requires a test
and has detailed expectations for the way it is to be
conducted, it may arrange for the testing itself.
Holmstrom’s policy, like most such policies, requires her
to appear for testing that the administrator arranges.
MetLife was free to make such a demand, but it did not.
Having passed on that opportunity and having pro-
vided only a broad request for “neurocognitive testing,”
MetLife’s after-the-fact reasons for rejecting Dr. Noel’s
results reflect arbitrary and capricious decision-making
that suffers from “an absence of reasoning in the record
to support it.” See Hackett, 315 F.3d at 774-75.

6. Examining Physicians
Holmstrom argues that MetLife improperly failed to
consider the opinion of her treating physician and relied
instead on the opinions of MetLife doctors who only
reviewed records and never examined her. The Supreme
Court has cautioned: “Nothing in [ERISA] suggests that
plan administrators must accord special deference to the
opinions of treating physicians. Nor does the Act impose
a heightened burden of explanation on administrators
when they reject a treating physician’s opinion.” Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003).
However, a plan’s determination must still have a
34 No. 09-2173

reasoned basis to survive judicial review, even under the
deferential standard of review. Administrators may not
arbitrarily refuse to credit a claimant’s reliable evidence,
including opinions of a treating physician. Id. at 834.
MetLife would be entitled to disagree with Dr. Vant’s
opinion if there were evidence in the record providing
a reasoned basis for doing so. No substantial evidence
exists to that effect.
None of the doctors who concluded that Holmstrom
failed to establish disability ever examined her. Every
doctor who has actually seen her in the pertinent time
period has concluded that she is disabled. An adminis-
trator may give weight to doctors who did only a rec-
ords review, see Nord, 538 U.S. at 831, but in this case,
the evidence provided by the doctors who examined
her in person is so overwhelming that the reliance on
record-review doctors who selectively criticized this
evidence is part of a larger pattern of arbitrary and capri-
cious decision-making. See Love v. National City Corp.
Welfare Benefits Plan, 574 F.3d 392, 396-397 (7th Cir. 2009)
(denial of benefits was arbitrary where “neither [denial]
letter explained why the reviewer chose to discredit
the evaluations and conclusions of Love’s treating physi-
cians” and “every doctor that personally examined Love
concluded that she was unable to work”); cf. Mote v. Aetna
Life Ins. Co., 502 F.3d 601, 604-05, 609 (upholding denial
decision where treating physicians uniformly concluded
that claimant was disabled, but surveillance evidence
contradicted those physicians’ conclusions).
MetLife’s reliance on the opinions of its reviewing
doctors here is all the more arbitrary in light of the fact
No. 09-2173 35

that it ignored the key final recommendation of one of
those doctors. After receiving Dr. Vant’s range of motion
data, Dr. Manolakas retracted his prior conclusion that
disability had not been established. Instead, he recom-
mended an independent clinical examination for resolu-
tion of the issue. Yet MetLife ignored this recommenda-
tion and instead adopted Dr. Manolakas’ original con-
clusion—the one he retracted after receiving additional
information from Dr. Vant. MetLife’s decision not to
order the examination and its failure to explain that
decision are further evidence of an arbitrary and
capricious decision.
Cases involving claims of persistent and serious pain
that is difficult to evaluate in objective terms pose great
challenges to plan administrators and to courts, and of
course to the affected patient. Plan administrators and
courts are understandably concerned about the possi-
bility of malingering and exaggeration. Accordingly, we
must note the absence here of any evidence of malin-
gering or drug-seeking behavior. The problems of malin-
gering, drug addiction, and drug-seeking behavior are
well-known to professionals who treat painful condi-
tions, and they look for them. MetLife internally ex-
pressed concern about the possibility of drug-seeking
behavior, and it enlisted the aid of Dr. Mark Carlson to
evaluate that concern. After examining Holmstrom back
in 2002, Dr. Carlson concluded that her chronic pain
was genuine and that there was no addiction. MetLife
never revisited this issue, save for a record review that
cited no evidence beyond Dr. Carlson’s prior conclu-
sions and the evidence that Dr. Carlson had already
evaluated. The problems of malingering and addiction
36 No. 09-2173

were not found here, and the subsequent reviewers’
speculation is not a substitute for evidence.

7. The Moving Target
Another sign of MetLife’s arbitrary and capricious
decision-making is that it repeatedly “moved the target.”
Over the course of the administrative appeals, MetLife
invited additional evidence to establish disability, but
when Holmstrom provided it, MetLife repeatedly found
that the new evidence was not sufficient under new
standards or expectations that had not been communi-
cated to Holmstrom. Such conduct frustrates fair claim
resolution and is evidence of arbitrary and capricious
behavior. See Dabertin v. HCR Manor Care, Inc., 373 F.3d
822, 831 (7th Cir. 2004) (administrator unfairly imposed
new, undisclosed requirements on claimant for sever-
ance benefits; an ERISA benefit “cannot be a moving
target where the plan administrator continues to add
conditions precedent to the award of benefits”); Bard v.
Boston Shipping Ass’n, 471 F.3d 229, 237 (1st Cir. 2006)
(awarding disability benefits where claimant “was faced
with a constant shift in what he was required to show,”
and thus administrator’s conduct was arbitrary and
capricious in that it failed to consider the evidence he
submitted “in an attempt to meet a moving target”).1 4

14
Courts have used several sports metaphors to capture this
unfortunate phenomenon: moving the target, moving the
goal posts, hiding the ball, raising the bar, etc. This circuit
(continued...)
No. 09-2173 37

As described above, MetLife moved the target re-
garding both the cognitive testing and functional capacity
evaluation. MetLife made general requests. Holmstrom
complied with the requests as a reasonable person would
understand them. MetLife then rejected the new infor-
mation for failure to meet new requirements that had
not been revealed beforehand.
An even more troubling example of “moving the tar-
get” was MetLife’s decision to discount all medical evi-
dence obtained after the initial termination of benefits
on August 5, 2005. Since that date, MetLife has asked for
a significant amount of medical data, some of which
could be provided only by conducting new tests. Yet in
its final October 2007 denial, MetLife stated its general
disregard for Holmstrom’s many 2007 submissions
because it would instead need “additional medical infor-
mation dating to the time the claim was terminated.” In
the same denial letter, MetLife employed a similar
strategy to get around its own consultant’s determina-
tion that Holmstrom indeed had disabling physical
deficits: “Although [Dr. Manolakas] noted that currently
[Holmstrom] would be limited to occasional [function] in
an eight hour work[day], the time period in review is
effective August 6, 2005.” In its brief on appeal, MetLife
emphasized Dr. Manolakas’ use of the word “currently”
to express only Holmstrom’s “condition as of Septem-

14
(...continued)
has used the “moving target” language before, and we’ll stick
with it.
38 No. 09-2173

ber 2007”, claiming that she had failed to “establish that
she was disabled as of August 2005”. MetLife Br. 30. As
the district court properly pointed out, accepting this
argument would mean that MetLife’s initial termination
of benefits for lack of supporting evidence could never
be successfully appealed if the claimant had not already
undergone functional testing (that satisfied MetLife’s
precise but not-yet-unarticulated specifications) before
the August 2005 termination decision. Holmstrom v. Metro-
politan Life Ins. Co., 615 F. Supp. 2d 722, 745 (N.D. Ill. 2009).
MetLife asked Holmstrom to undergo more testing, and
rejected the results at least in part because the testing
was not done before it made the request. That behavior
also reflects arbitrary and capricious decision-making.

8. Selective Consideration of Evidence
Holmstrom has offered sufficient evidence to establish
continuing disability under the plan, and MetLife has
failed to support its contrary conclusions with sound
“reasoning in the record.” See Leger, 557 F.3d at 835.
Holmstrom’s key evidence—the FCEs, Dr. Vant’s opinion,
the consistent CRPS diagnoses, the surgeries, the Social
Security disability determination (under more stringent
disability criteria), the strong pain medication regimen,
and the results of the neurocognitive testing—is all com-
petent evidence that supports a finding of total disability.
MetLife’s rejection of that evidence has been based on
selective readings that are not reasonably consistent with
the entire picture. This approach is another hallmark of
an arbitrary and capricious decision. See Majeski v. Metro-
No. 09-2173 39

politan Life Ins. Co., 590 F.3d 478, 483-84 (7th Cir. 2009)
(holding that denial decision was arbitrary where
insurer selectively relied on pieces of evidence to sup-
port denial of benefits, while that evidence in context
demonstrated disability); Leger, 557 F.3d at 832-33 (denial
decision was arbitrary where insurer “cherry-picked the
statements from her medical history that supported the
decision to terminate her benefits, while ignoring a
wealth of evidence to support her claim that she was
totally disabled”); see also Glenn v. Metropolitan Life Ins.
Co., 461 F.3d 660, 672-74 & n.4 (6th Cir. 2006) (holding
denial decision was arbitrary where plan selectively
considered evidence to reach decision unsupported by
the record as a whole), aff’d 128 S. Ct. 2343 (2008) (ap-
proving Sixth Circuit’s reasoning).

C. Conflict of Interest
As discussed above, a structural conflict of interest is
a relevant factor where the administrator has both the
discretionary authority to determine eligibility for
benefits and the obligation to pay those benefits. Glenn,
128 S. Ct. at 2346; Jenkins v. Price Waterhouse Long Term
Disability Plan, 564 F.3d 856, 861 (7th Cir. 2009). “A struc-
tural conflict is one factor among many that are relevant
in the abuse-of-discretion analysis . . . and will ‘act as a
tiebreaker when the other factors are closely balanced.’ ”
Raybourne v. Cigna Life Ins. Co. of New York, 576 F.3d 444,
449 (7th Cir. 2009), quoting Glenn, 128 S. Ct. at 2351-52.
However, lengthy analysis of any potential conflict of
interest at work here is unnecessary, as we do not view
40 No. 09-2173

this as a close case for judicial review. Ample evidence
in this record shows arbitrary and capricious decision-
making. That being said, it is worth commenting on
some of the factors present in this case that suggest
that a conflict of interest was at work.
Glenn and its progeny have identified several indicia
that can signal the effects of a conflict of interest. Several
are present here. First, MetLife’s selective consideration
of the evidence not only indicates that its decision was
arbitrary (as discussed above), but also demonstrates
the effects of a conflict of interest. Selective considera-
tion of evidence can be a factor suggesting arbitrary ad-
ministration in its own right, as well as a reason to give
more weight to the conflict factor. See Glenn, 128 S. Ct. at
2352. A claimant may demonstrate conflict of interest
by showing that the administrator “emphasized a certain
medical report that favored a denial of benefits [and] de-
emphasized certain other reports that suggested a con-
trary conclusion.” Id. The selective approach described
above tends to indicate a conflict of interest at work.
A second indication is MetLife’s conduct regarding
the Social Security award. The Supreme Court has
found this behavior to be a factor in its own right in the
arbitrary-and-capricious balance, but it may also be a
sign of a conflict of interest. Glenn, 128 S. Ct. at 2352.
A third indication of the effect of MetLife’s conflict
of interest is the repeated “moving of the target.” This con-
duct is also an independent factor in the arbitrary-and-
capricious inquiry, but an administrator’s constant
changing of its demands to avoid awarding benefits can
No. 09-2173 41

also be good evidence of a conflict of interest at work.
See Dabertin, 373 F.3d at 832 (not addressing conflict per se,
as this case preceded Glenn’s announcement of the
conflict of interest standard, but awarding benefits and
declining remand, which would simply permit the ad-
ministrator to “dig up new evidence until it found just the
right support for its decision to deny an employee her
benefits”).

D. Remedy
MetLife’s termination of benefits was arbitrary and
capricious and thus cannot stand. We turn now to the
issue of the appropriate remedy. When an ERISA plan
administrator’s benefits decision has been arbitrary,
the most common remedy is a remand for a fresh ad-
ministrative decision rather than an outright award
of benefits:
Generally, when a court or agency fails to make ade-
quate findings or fails to provide an adequate rea-
soning, the proper remedy in an ERISA case, as well as
a conventional 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.
Tate v. Long Term Disability Plan for Salaried Employees of
Champion International Corp. No. 506, 545 F.3d 555, 563 (7th
Cir. 2008) (internal quotations omitted) (remanding to
administrator). The claimant’s benefit status prior to the
denial informs our determination: “In fashioning relief
42 No. 09-2173

for a plaintiff who has sued to enforce her rights under
ERISA . . . we have focused ‘on what is required in each
case to fully remedy the defective procedures given the
status quo prior to the denial or termination’ of benefits.”
Schneider v. Sentry Group Long Term Disability Plan, 422 F.3d
621, 629 (7th Cir. 2005), quoting Hackett v. Xerox Corp.
Long-Term Disability Income Plan, 315 F.3d 771, 776 (7th
Cir. 2003).
The Schneider court identified a key distinction between
an initial denial of benefits and a termination of benefits
that were being received:
Because of our emphasis on restoring the status quo
prior to the defective procedures, we have distin-
guished between “a case dealing with a plan adminis-
trator’s initial denial of benefits and a case where the
plan administrator terminated benefits to which the
administrator had previously determined the claimant
was entitled. Compare Wolfe v. J.C. Penney Co., Inc., 710
F.2d 388, 393-94 (7th Cir. 1983) (remanding to the
administrator for new hearing where initial denial of
benefits was not procedurally accurate) with Halpin [v.
W.W. Grainger, Inc., 962 F.2d 685, 697 (7th Cir. 1992)]
(affirming district court’s reinstatement of plan bene-
fits where termination was not procedurally ade-
quate).”
Schneider, 422 F.3d at 629, quoting Hackett, 315 F.3d
at 775-76. We thus have a clearer idea of a claimant’s
disability—and are much more likely to award bene-
fits—when the denial decision we are vacating succeeds
a prior benefit award. We must take care, however, to
No. 09-2173 43

rely on that prior award only if it was made under the
same disability definition as the subsequent termination.
See Tate, 545 F.3d at 563 (remanding to district court
because prior grant of benefits was made under a dif-
ferent disability definition).1 5
In the present case, MetLife determined in 2002 that
Holmstrom was totally disabled according to the plan’s
“any-occupation” definition. MetLife then reversed its
position in applying the same standard. Its decision was
arbitrary and capricious, and the record indicates that
Holmstrom’s condition has either remained constant or
worsened since that initial “any-occupation” determina-
tion. Retroactive reinstatement of benefits is therefore
the appropriate remedy. See Schneider, 422 F.3d at 629-30
(ordering retroactive reinstatement because claimant
“ceased receiving benefits to which she had earlier been
determined to be entitled”); Hackett, 315 F.3d at 775-76
(ordering retroactive reinstatement because “the status
quo prior to the [termination under the] defective proce-
dure was the continuation of benefits”).
Further, we tend to award benefits when the record
provides us with a firm grasp of the merits of the partici-

15
In reviewing the propriety of the denial decision itself, we
consider reversal of a prior benefit award as “just one circum-
stance” in the process. Leger, 557 F.3d at 832. Once we
have decided that the administrator’s reversal of course was
arbitrary and capricious, this prior benefit award may be
determinative on the question of whether to remand or
reinstate benefits. See Schneider, 422 F.3d at 629; Hackett, 315
F.3d at 775-76.
44 No. 09-2173

pant’s claim. Compare Halpin, 962 F.2d at 697-98
(affirming district court’s decision to reinstate benefits
where the evidence supported the merits of the disability
claim and administrator terminated benefits previously
awarded), with Tate, 545 F.3d at 563 (reinstatement not
appropriate where court could draw “no opinion
regarding the merits of Tate’s claim as the record does not
make clear either way whether Tate is ‘totally disabled’ ”).
After examining the eleven years and nearly 700 pages
of medical data before us, we are confident that
Holmstrom has been totally disabled under the plan’s
“any-occupation” definition. There is nothing more she
can provide. A wealth of detailed medical data and
consistent, objective functionality testing point only to a
finding of total disability. Reinstatement of benefits is
the remedy. We remand to the district court with instruc-
tions to reinstate long-term benefits retroactively as of
August 5, 2005. We leave it to the district court to deter-
mine the exact amount owed since that date.

E. Prejudgment Interest and Attorney Fees
Holmstrom seeks costs, attorney fees, and prejudgment
interest on benefits due since August 2005. In a benefi-
ciary’s ERISA action, “the court in its discretion may allow
a reasonable attorney’s fee and costs of action to either
party.” 29 U.S.C. § 1132(g)(1). We review a district court’s
decision to award or deny attorney fees for abuse of
discretion, and will not disturb the district court’s
finding “if it has a basis in reason.” Bowerman v. Wal-Mart
Stores, Inc., 226 F.3d 574, 592 (7th Cir. 2000). Whether to
No. 09-2173 45

award an ERISA claimant prejudgment interest is “a
question of fairness, lying within the court’s sound discre-
tion, to be answered by balancing the equities.” Fritcher v.
Health Care Service Corp., 301 F.3d 811, 820 (7th Cir. 2002).
In the present case, the district court had no reason to
address the issues of attorney fees and prejudgment
interest because it found in MetLife’s favor. The district
court must have an opportunity to address these matters
in light of our decision today. We remand for such con-
sideration consistent with this opinion.
We reverse the district court’s judgment and remand
with instructions to order MetLife to reinstate bene-
fits retroactive to August 5, 2005, and to consider
Holmstrom’s request for attorney fees, costs, and prejudg-
ment interest. The parties agree that the payment of past
benefits should be offset by the amount of Holmstrom’s
Social Security payments. The parties have stipulated
that $70,107.76 is the amount of Social Security offset for
benefits that Holmstrom received from 2000 to 2005. The
record does not reveal the amount of Social Security
benefits she has received since 2005. We leave it to the
district court to determine both the amount that
MetLife owes to Holmstrom in unrealized benefit pay-
ments under the plan and the amount of the offset for
Social Security payments.
R EVERSED and R EMANDED.

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