NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 23, 2009
Decided September 14, 2010
Before
WILLIAM J. BAUER, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐2441
Appeal from the United States District
BRIAN MEADE, Court for the Northern District of Illinois,
Plaintiff‐Appellant, Western Division.
v. No. 07 C 50201
NATIONAL CITY CORPORATION Philip G. Reinhard,
WELFARE PLAN, Judge.
Defendant‐Appellee.
O R D E R
Brian Meade was injured in an automobile accident when another car rear‐ended the
one he was driving. He received short‐term disability benefits from the National City
Corporation Welfare Plan, and, when those expired, he began receiving long‐term disability
benefits. About fifteen months after he began receiving long‐term benefits, the plan
administrator notified Meade that it was terminating his long‐term benefits because it did not
consider him “disabled” under the plan. National City’s Claims Appeal Committee upheld the
No. 08-2441 Page 2
determination, and Meade filed suit in federal court. We agree with the district court that
National City had no obligation to reopen his closed appeal to consider new evidence,
including a determination from the Social Security Administration that he was disabled under
that agency’s standard. We also agree that National City considered Meade’s cognitive
impairments and that its decision to terminate his long‐term benefits was not arbitrary and
capricious. Therefore, we affirm the grant of summary judgment in National City’s favor.
I. BACKGROUND
Brian Meade worked as a branch manager for the National City Mortgage Company.
In that role, he managed the activities of a branch office in the origination, processing, and
closing of residential mortgage loans, and he led a small staff. The National City Mortgage
Company is a subsidiary of the National City Corporation, and Meade was a participant in the
Corporation’s Welfare Benefits Plan. The claims administrator was Liberty Life Assurance
Company of Boston (“Liberty Mutual”).
Meade was in a car accident unrelated to his job on July 2, 2004, when a vehicle traveling
approximately 40 to 50 miles per hour rear‐ended his car. The impact pushed Meade’s car forty
feet. Meade went to the emergency room. He was diagnosed with whiplash injuries,
prescribed medication, and released.
Meade later visited his family physician, who prescribed new medications. On July 13,
2004, Meade visited Dr. Stephen Mull, and Dr. Mull diagnosed Meade with cervical thoracic
strain due to the accident. Dr. Mull prescribed physical therapy and continued Meade on
muscle relaxants and pain relievers. On August 3, he diagnosed Meade with acute neck pain,
and he indicated on a September 3, 2004 form that Meade was unable to work due to severe
neck pain and decreased range of motion. Dr. John Mansell saw Meade on August 13, 2004 and
noted on a form that Meade suffered a fracture in his cervical spine, and that his condition
caused Meade profound decreased range of motion and pain with almost any movement. Dr.
Mansell later administered trigger point injections into Meade’s cervical spine.
Meade’s last day of work was August 12, 2004. He applied for and received short‐term
disability benefits from National City that began on August 20, 2004, and he received them for
the maximum term of 26 weeks. Meade then applied for long‐term disability payments, and
he began receiving those payments in February 2005. In addition, in July 2005, he applied for
benefits from the Social Security Administration.
In the meantime, Meade continued to seek and receive treatment. Dr. Mull indicated
in December 2004 that Meade was experiencing dizzy spells and difficulty in mental focusing
in addition to ongoing shoulder, neck, and upper back pain. Dr. Michael Roh evaluated Meade
in December 2004 and confirmed the diagnoses of chronic whiplash syndrome and disc
herniation. He recommended soft tissue manipulation and immobilization and referred Meade
to the Mayo Clinic for evaluation. Meade had a neuropsyschological examination at the Mayo
No. 08-2441 Page 3
Clinic on April 7, 2005. On October 12, 2005, Dr. Trent Barnhardt, one of Meade’s treating
physicians, noted on a Liberty Mutual Functional Capacities Form that Meade was unable to
engage in substantial work activities. On July 6, 2006, Meade had a pain consultation with Dr.
Nalini Sehgal, a specialist in pain management, and he diagnosed Meade with whiplash
associated disorder and muscoskeletal abnormalities.
Liberty Mutual, the plan’s claims administrator, also retained physicians to assess
Meade’s ability to work. In December 2005, Dr. Richard Corzatt, one of the Liberty Mutual‐
retained physicians, reviewed Meade’s file and concluded that Meade could not presently
engage in sedentary work but should recover sufficiently to return to a sedentary occupation.
Liberty Mutual also referred Meade to a neurosurgeon, Dr. Marc Soriano, for an independent
medical examination. On March 14, 2006, Dr. Soriano reviewed Meade’s medical treatment
history and examined him. Dr. Soriano concluded that there was no objective source
supporting a functional impairment and that objective testing did “not correspond to his
apparently exaggerated complaints.” Dr. Soriano stated that Meade’s reports of being unable
to read or use a computer for more than two or three minutes were inconsistent with his
reported ability to watch children’s basketball games, drive a car, and watch television without
adverse effects. Dr. Soriano also wrote that when asked, Meade reported an inability to abduct
his arms more than 50 degrees. However, Dr. Soriano wrote, Meade tolerated abduction
beyond 90 degrees without complaining of pain when he was being tested in other respects and
was not aware that his arms were abducted as they were. Dr. Soriano also documented that
although Meade walked slowly, stiffly, and haltingly while in the examination room, Dr.
Soriano watched through a window as Meade walked to his car in a normal fashion. Liberty
Mutual faxed a copy of this report to Meade’s family physician, Dr. Barnhart, and asked for his
comments on Dr. Soriano’s findings. Dr. Barnhart did not respond.
On May 11, 2006, pointing in part to Dr. Soriano’s report and conclusions, Liberty
Mutual informed Meade that it was terminating his long‐term disability benefits. Meade
appealed and submitted letters in support of his appeal from two physical therapists and from
his new primary care physician. The plan provides that when an adverse decision is based on
medical judgment, a review of the claim must be conducted by a health care professional with
appropriate training and experience who was not consulted in connection with the adverse
decision. Pursuant to this requirement, Dr. Michael Hoffman, a neurosurgeon, reviewed
Meade’s file at Liberty Mutual’s request and concluded that Meade that there was no reason
Meade could not perform his job as branch manager. National City’s Appeal Committee denied
Meade’s appeal in March 2007.
The next month, the Social Security Administration concluded that Meade was
“disabled” under the Social Security Act. In August 2007, Meade asked that his long‐term
disability claim with National City be reopened to consider new evidence, namely the Social
Security Administration’s determination, the contents of the Social Security disability claim file,
No. 08-2441 Page 4
and an additional neurospsychological report. The Appeal Committee did not reopen Meade’s
file.
Meade filed suit in federal court challenging the termination of his long‐term benefits.
The district court concluded that the decision to terminate benefits was not arbitrary and
capricious, and it granted summary judgment in National City’s favor. Meade appeals.
II. ANALYSIS
When a plan gives its administrator full discretion and authority to determine eligibility
for benefits, as here, we review a decision denying benefits under the arbitrary and capricious
standard of review. See Marrs v. Motorola, Inc., 577 F.3d 783, 786 (7th Cir. 2009). The Supreme
Court’s decision in Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105 (2008), did not change
this standard of review. See Majeski v. Metropolitan Life Ins. Co., 590 F.3d 478, 482 (7th Cir. 2009);
Leger v. Tribune Co. Long Term Disability Benefit Plan, 557 F.3d 823, 831 (7th Cir. 2009); Black v.
Long Term Disability Ins., 582 F.3d 738, 744‐45 (7th Cir. 2009).
A. No Error in Failing to Consider New Evidence
Meade argues that National City should have considered evidence he submitted after
the Appeal Committee denied his appeal. About a month after that determination, the Social
Security Administration concluded that Meade was “disabled” under the Social Security
Administration standard. Several months later, Meade submitted a copy of the Social Security
decision and underlying Social Security claim file to the plan administrator, along with a
recently completed neuropsychological assessment. He asked that the plan administrator
reopen his claim to consider this new evidence, but it did not do so. Although under the
plan,“[a]ll claims appeal decisions are final and binding,” Meade contends that National City
should have reopened his case to consider the new evidence he submitted.
The claimant in Majeski v. Metropolitan Life Insurance Co., 590 F.3d 478 (7th Cir. 2009)
made a nearly identical argument, and, unfortunately for Meade, we rejected it. We recognized
in Majeski that the Supreme Court’s decision in Glenn gave more weight to a plan
administrator’s conflict of interest because that administrator had encouraged the claimant to
file for Social Security benefits but later ignored the Social Security Administration’s
determination when assessing whether the claimant met the plan’s definition of “disabled.”
Nonetheless, we said: “But the Social Security decision in Glenn was already part of the
administrative record, and no credible reading of Glenn would require a plan administrator to
reopen a closed appeal and consider a later Social Security award simply so that a reviewing
court has a more complete record under which to examine the court plan administrator’s
conflict of interest.” 590 F.3d at 483. In so holding, we distinguished the two cases to which
Meade points. We noted that Sloan v. Hartford Life & Accident Insurance Co., 475 F.3d 999, 1004‐
05 (8th Cir. 2007), involved a de novo decision on the right to benefits, which we said was “a
different matter altogether.” See Majeski, 590 F.3d at 483; see also Krolnik v. Prudential Ins. Co. of
No. 08-2441 Page 5
Am., 570 F.3d 841, 843 (7th Cir. 2009) (“When review is deferential – when the plan’s decision
must be sustained unless arbitrary and capricious – then review is limited to the administrative
record.”). We also recognized that the court in Vega v. National Life Insurance Services, Inc., 188
F.3d 287, 300 (5th Cir. 1999), had allowed a claimant to supplement the administrative record,
but we rejected that case as an outlier. See Majeski, 590 F.3d at 483. Indeed, plans have a
legitimate interest in the finality of their decisions, and the plan in this case made its decisions
final upon the Appeal Committee’s determination. See Tegtmeier v. Midwest Operating Engineers
Pension Trust Fund, 390 F.3d 1040, 1047 (7th Cir. 2004). In line with Majeski, we conclude that
National City’s failure to consider materials submitted after the Appeal Committee decision
does not constitute error or necessitate a remand.
B. Cognitive Impairments Considered
Meade also argues that the decision to deny him benefits was arbitrary and capricious
because, he maintains, National City overlooked his cognitive impairments and depression.
Notably, Meade does not challenge the Appeal Committee’s determination that there was no
identifiable cause for the claimed physical symptoms which he admits were his “primary”
allegations of disability.
The plan contains different standards for short‐term and long‐term benefits. For the
long‐term benefits at issue in this case, the plan requires a showing that the participant’s
condition makes him “unable to perform the duties of your particular job . . . After you have
been disabled for two years . . . [t]he Plan Administrator must determine that your condition
makes you unable to perform the duties of any other occupation for which [he is], or could
become, qualified by education, training or experience.” Meade sought benefits within two
years after his injury, so National City analyzed whether he could perform the duties of his job
as branch manager.
The arbitrary and capricious standard of review is deferential, and we will not substitute
our judgment for that of the administrator as long as the administrator makes an informed
decision and articulates an explanation that is satisfactory in light of the relevant facts. Mote
v. Aetna Life Ins. Co., 502 F.3d 601, 606 (7th Cir. 2007). However, “‘we will not uphold a
termination [of benefits] where there is an absence of reasoning in the record to support it.’”
Love v. National City Corp. Welfare Benefits Plan, 574 F.3d 392, 396 (7th Cir. 2009), (quoting Hackett
v. Xerox Corp. Long‐Term Disability Income Plan, 315 F.3d 771, 773 (7th Cir. 2003)). In addition,
ERISA administrators must address reliable evidence of eligibility submitted by a claimant and
communicate specific reasons to a claimant for a denial of benefits. Id.
Meade argues that his cognitive impairments were not assessed in combination with his
physical impairments. The record reflects, however, shows otherwise. The Appeal Committee
decision reflects that the Committee considered his cognitive complaints, as its decision letter
states in part:
No. 08-2441 Page 6
Although Mr. Meade reports subjective complaints of neck pain, shoulder pain,
thoracic pain, difficulty raising arms above shoulders, headaches, blurry vision, and
difficulty reading, these subjective complaints are not substantiated by any objective
finding. Review of radiological test results, MRI, CT, x‐rays does not indicate acute
objective findings. Complaints are unsubstantiated, such as inability to lift arms;
however there was no atrophy or objective test result. The Committee noted
inconsistency in Mr. Meade’s reports of inability, such as unable to read, however,
he is still able to do other activities requiring use of vision, such as watch TV, drive,
and watch sporting events.
In addition, Dr. Soriano’s report specifically set forth complaints Meade made relating to his
cognitive impairments. Dr. Soriano’s description of Meade’s current complaints included that
Meade could not read for more than two to three minutes because he becomes dizzy, the room
spins, and he becomes nauseated, as well as that he had pain radiating behind his right ear and
eye. Dr. Soriano’s report also recounted that Meade’s wife read a written description of the
purpose of the exam to Meade because Meade alleged that he could not read it and said he
would become dizzy and experience other neurological symptoms after more than a few
minutes of reading. And he stated that Meade’s “overall affect is blunted,” an observation that
Meade appeared depressed when Dr. Soriano examined him.
Dr. Soriano went on to state, however, that although Meade made these complaints, he
found the complaints unsubstantiated by any objective findings in the normal neurological
examination he performed. Dr. Soriano concluded that he believed Meade’s complaints
regarding his vision were “exaggerated.” Notably, Dr. Soriano based his conclusion in part on
his own examination of Meade. Cf. Love v. National City Corp. Welfare Benefits Plan, 574 F.3d 392
(7th Cir. 2009) (independent medical examiner reviewed the file but did not examine the
claimant); Gessling v. Group Long Term Disability Plan for Employees of Sprint/United Mgmt. Co.,
693 F. Supp. 2d 856 (S.D. Ind. Mar. 16, 2010) (same). Dr. Soriano also pointed out that Meade
was able to attend sporting events and watch television without experiencing similar problems
with his eyes.
Dr. Hoffman’s report also reflects that he considered Meade’s cognitive complaints. He
wrote that Meade’s complaints of headaches, blurry vision, and difficulty reading, along with
his complaints of other pain, were not substantiated by objective findings, and he noted that
Meade’s neurological examination had been normal.1
1
Dr. Hoffman’s report notes that he had a phone conversation with Meade’s primary care
physician, Dr. Barnhart, about a month before Dr. Hoffman filed his report. According to Dr.
Hoffman’s notes, Dr. Barnhart stated Meade was taking a lot of pain medication and he did not
feel comfortable giving him medication, so he referred him to another doctor, as well as that
there was a lack of objective findings.
No. 08-2441 Page 7
Meade also emphasizes that neither Dr. Soriano nor Dr. Hoffman mentioned the April
2005 neuropsychological examination he had at the Mayo Clinic. That report notes in the
“History of Present Illness” section that Meade “admits that he has some cognitive difficulty
since the accident, but he cannot really say if it is progressing or improving. He does have
some cognitive complaints as have already been outlined in the medical record.” The report’s
“Impression/Report/Plan” section states “comprehension intellectual ability is firmly in the
average range . . . verbal comprehension intellectual ability is actually high average. Working
memory is somewhat lower and just within the average range. Lexical and semantic fluency
performances are normal. Delayed auditory verbal memory of paragraph‐length information
is normal. Acquisition of a supraspan word list presented over serial presentations is mildly
to moderately reduced.” The report also noted learning efficiency that was lower than expected
and in the compromised range but that the percentage of information recalled thirty minutes
later was normal. As the district court noted, nothing in this report was so compelling or
different from that in other referenced documentation that the failure to mention the report
means we would set aside the decision. See Davis v. Unum Life Ins. Co. of American, 444 F.3d 569,
578 (7th Cir. 2006) (consulting physicians need not recite every piece of evidence reviewed).
Our standard of review asks whether the denial decision was arbitrary and capricious,
which means that we ask only “whether [the] decision to deny [the claimant] benefits finds
rational support in the record.” Fischer v. Liberty Life Assur. Co. of Boston, 576 F.3d 369 (7th Cir.
2009). Although some of the medical opinions in this case differ as to whether Meade’s
conditions were disabling, under our deferential standard of review, we must defer to National
City’s choice between competing medical opinions so long as the choice is rationally supported
by record evidence. Black v. Long Term Disability, 582 F.3d 738, 746 (7th Cir. 2009). The denial
decision has rational support here. None of Meade’s physicians identified an organic cause of
his pain, and they recommended against any surgical treatment. The explanations given by the
consulting physicians and Appeal Committee shows that they adequately considered Meade’s
cognitive complaints, and they presented reasonable explanations for their conclusions. See id.
Therefore, National City was entitled to believe them. Finally, that National City both
determined eligibility for benefits and paid them does not alter our conclusion. Although
Glenn instructs that a conflict of interest is one factor to be considered in conducting our review,
we do not find it pushes things over the edge here. See Glenn, 128 S. Ct. at 2351 (“any one factor
will act as a tie‐breaker when the other factors are closely balanced, the degree of closeness
necessary depending on the tie‐breaking factors inherent or case‐specific importance”).
III. CONCLUSION
The judgment of the district court is AFFIRMED.