In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3898 & 11-1006
S USIE W EITZENKAMP,
Plaintiff-Appellant,
Cross-Appellee,
v.
U NUM L IFE INSURANCE C OMPANY OF A MERICA,
Defendant-Appellee,
Cross-Appellant.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 1:09-cv-01017-WCG—William C. Griesbach, Judge.
A RGUED M AY 11, 2011—D ECIDED S EPTEMBER 20, 2011
Before R OVNER and H AMILTON, Circuit Judges, and
L EFKOW, District Judge.
L EFKOW, District Judge. After being diagnosed with
fibromyalgia, chronic pain, anxiety, and depression,
The Honorable Joan Humphrey Lefkow of the Northern
District of Illinois, sitting by designation.
2 Nos. 10-3898 & 11-1006
Susie Weitzenkamp was awarded long-term disability
benefits under an employee benefit plan (“the plan”)
issued and administered by Unum Life Insurance Com-
pany (“Unum”). Benefits were discontinued a little
more than twenty-four months later, when Unum deter-
mined that Weitzenkamp had received all to which she
was entitled under the plan’s self-reported symptoms
limitation. Because Weitzenkamp had retroactively re-
ceived social security benefits, Unum also sought to
recoup equivalent overpayments as provided by the
plan. On appeal, Weitzenkamp challenges the applica-
tion of the self-reported symptoms limitation to her
case and argues that Unum’s claim for overpayment is
barred because the Social Security Act prohibits attach-
ment or garnishment of social security payments. On
July 11, 2011, we issued an opinion affirming in part
and reversing in part. Unum filed a petition for panel
rehearing, and we requested an answer, which was filed.
By separate order we granted the petition and vacated
the original opinion and final judgment. For the reasons
that follow, we reverse the district court’s judgment as
to Unum’s application of the self-reported symptoms
limitations and affirm as to the social security overpay-
ment claim.
I.
Weitzenkamp worked at Time Warner Cable Inc. as a
sales representative. Weitzenkamp participated in the
plan, which is governed by the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001
Nos. 10-3898 & 11-1006 3
et seq., and administered by Unum. The plan gives
Unum discretion to determine eligibility and to interpret
the plan’s terms. A participant who is limited from
performing the material and substantial duties of her
regular position due to sickness or injury that results in
a twenty percent or more loss in indexed monthly
earnings is entitled to long-term benefits. After twenty-
four months of payments, the disability determination
is revisited, with the criterion changing from being
unable to perform one’s own occupation to being unable
to perform any occupation. As long as a participant
meets the “any occupation” standard, benefits continue
until she is no longer disabled or has reached the maxi-
mum period of payment, which, for someone like
Weitzenkamp who was under sixty at the onset of her
disability, is to age sixty-five. One significant and relevant
limitation exists, however, as benefits cease after twenty-
four months for those with “[d]isabilities, due to sick-
ness or injury, which are primarily based on self-reported
symptoms, and disabilities due to mental illness, alcohol-
ism or drug abuse.” Self-reported symptoms are “the
manifestations of your condition which you tell your
doctor that are not verifiable using tests, procedures or
clinical examinations standardly accepted in the practice
of medicine.” The plan provides a non-exhaustive list of
self-reported symptoms: “headaches, pain, fatigue, stiff-
ness, soreness, ringing in ears, dizziness, numbness
and loss of energy.”
As required under ERISA, Unum provided Weitzen-
kamp and others covered by the plan with a summary
plan description (“SPD”). The SPD states that “[p]ayments
4 Nos. 10-3898 & 11-1006
for disabilities other than those attributable to mental
illness or substance abuse may continue until the earlier
of the date you recover or the date shown on the
schedule.” 1 The twenty-four month limitation for disa-
bilities due to mental illness and substance abuse is
reiterated two more times in the SPD. No mention is
made, however, of the self-reported symptoms limitation.
On December 13, 2005, after a viral illness,
Weitzenkamp’s physician certified that she was unable
to work. She continued to suffer from ongoing pain
and fatigue and was eventually diagnosed with
fibromyalgia, chronic pain, anxiety, and depression.
After exhausting her short-term disability benefits,
Weitzenkamp sought long-term disability benefits. Unum
approved Weitzenkamp’s request on July 25, 2006, retro-
active to June 12, 2006, under a reservation of rights.
The approval letter included language from the plan
on what was considered a disability but did not
mention the self-reported symptoms limitation. Unum
removed its reservation of rights on January 29, 2007, but
also invoked the self-reported symptoms and mental
illness limitations, indicating it would pay benefits
until June 11, 2008 unless other conditions arose to
which the limitation did not apply.
Unum required Weitzenkamp to apply for social
security benefits. She was awarded social security dis-
ability benefits in September 2007 based on a primary
diagnosis of affective disorder and a secondary diagnosis
1
The schedule lists the maximum period of payment.
Nos. 10-3898 & 11-1006 5
of muscle and ligament disorders due to fibromyalgia.
The award was retroactive to December 13, 2005. As
provided in the plan, Unum reduced Weitzenkamp’s
monthly benefit accordingly. As Unum also had reserved
the right to recover any overpayments that resulted
from a participant’s retroactive receipt of social security
benefits, it requested that Weitzenkamp reimburse it
for this amount. Some of this overpayment was recov-
ered, but a balance of $9,089 remains.
In 2008, Unum reviewed Weitzenkamp’s medical
records to determine whether she remained eligible to
receive benefits.2 Weitzenkamp’s treating rheumatologist,
Dr. Kent Partain, submitted a fibromyalgia assessment
form, indicating that Weitzenkamp met the criteria for
fibromyalgia, including the presence of multiple tender
points. Dr. Partain identified Weitzenkamp’s symptoms
as chronic pain, non-restorative sleep, muscle weak-
ness, morning stiffness, subjective swelling, frequent,
severe headaches, numbness and tingling, chronic
fatigue, Raynaud’s phenomenon, irritable bowel syndrome,
depression, and carpal tunnel syndrome. Weitzenkamp
was said to have constant pain in all areas of her body.
He also indicated that Weitzenkamp had a disc protu-
sion and moderate cervical spondylosis. Dr. Partain
concluded that “[d]espite interventions by neurology,
2
We need only consider evidence regarding Weitzenkamp’s
fibromyalgia for purposes of this appeal as it is undisputed that
the mental illness limitation applies to Weitzenkamp’s other
diagnoses.
6 Nos. 10-3898 & 11-1006
psychiatry, psychology, neuropsychology, orthopedics,
physiatry, integrative medicine, [and a] pain program
with multiple interventions from these services,
[Weitzenkamp] remains unable to work.”
Dr. Daniel Krell, one of Unum’s medical consultants,
reviewed Weitzenkamp’s records and concluded that,
although she had no reliable, sustainable functional
capacity, no documented findings of a physical condi-
tion existed to explain her symptoms. He also opined
that Weitzenkamp was overstating her symptoms based
on her having consistently indicated that her pain
levels were between eight and ten on a ten-point
scale. Dr. Krell’s opinion was then reviewed by
Dr. Gary Greenhood, another Unum medical consultant.
Dr. Greenhood disagreed with Dr. Krell’s assessment
that Weitzenkamp’s condition was not documented
but concluded that the pain keeping her from working was
a self-reported symptom of fibromyalgia. Dr. Greenhood
noted that several verifiable and reproducible findings
consistent with pain existed: two x-rays indicated mild
degenerative change in Weitzenkamp’s right hip and two
MRIs showed moderate cervical spondylosis and a disc
protrusion with an annular tear and a mild disc bulge.
Because Dr. Partain’s evaluation of Weitzenkamp did
not reference degenerative findings of the hips or
cervical or lumbar spines, Dr. Greenhood concluded
that Weitzenkamp’s pain was not due to these verified
findings but rather to fibromyalgia. Based on these
reports, portions of which were reproduced word
for word in its letter to Weitzenkamp, Unum discon-
tinued Weitzenkamp’s benefits based on the self-reported
Nos. 10-3898 & 11-1006 7
symptoms and mental illness limitations on August 22,
2008. It acknowledged that Weitzenkamp was re-
ceiving social security benefits but indicated that the
plan’s limitations, which differed from social security
standards for disability determinations, precluded her
from receiving further plan benefits.
Weitzenkamp appealed through the designated
appeal process. She submitted an additional letter from
Dr. Partain, in which he stated that his diagnosis of
fibromyalgia rested on “a history and physical examina-
tion consistent with this condition plus ruling out
other conditions that can mimic fibromyalgia syndrome
with various laboratory testing that was done.” He indi-
cated that Weitzenkamp qualified as having “the typical
11 or more out of 18 tender points” even though some
authorities did not believe that it was necessary to
have eleven tender points to be diagnosed with
fibromyalgia. Unum referred Weitzenkamp’s appeal to
Dr. Norman Bress, a rheumatologist, for further review.
Dr. Bress indicated that Weitzenkamp met the criteria
for fibromyalgia but highlighted that there was no evi-
dence in the record that she had been examined for
control points “in order to determine the reliability and
specificity of the tender point exam.” He noted that
the majority of patients with fibromyalgia could work
full time and that Weitzenkamp had done so for many
years prior to her date of disability even though she
had symptoms prior to that date. He also indicated
that Weitzenkamp’s condition was based on self-
reported symptoms, as even tender points “are based on
the patient’s response to the examiner’s palpation.”
8 Nos. 10-3898 & 11-1006
Dr. Bress concluded that Weitzenkamp’s claimed limita-
tions were not supported by her fibromyalgia-related
symptoms. After accounting for Dr. Bress’s conclusions,
Unum affirmed its decision on June 18, 2009. In its letter
of explanation, Unum did not dispute Weitzenkamp’s
diagnosis of fibromyalgia but instead emphasized that
Weitzenkamp’s pain, being the primary symptom as-
sociated with her fibromyalgia, was based on self-re-
port. As such, benefits were limited to twenty-four
months by the self-reported symptoms limitation.
Weitzenkamp then filed this lawsuit. Unum counter-
claimed, seeking recoupment of the overpayment created
by Weitzenkamp’s retroactive receipt of social security
benefits. Both parties moved for summary judgment.
The district court found that to the extent Unum’s dis-
continuation of benefits was based on a finding that
she was not disabled, that decision was arbitrary
and capricious. But the district court upheld Unum’s
application of the self-reported symptoms limitation.
It also concluded that Unum is entitled to $9,089 as a
result of its overpayment of benefits. Weitzenkamp
now appeals. Unum filed a conditional cross-appeal
to preserve its right to appeal the district court’s deter-
mination that Unum’s finding of no disability was
arbitrary and capricious if we reverse the judgment.
II.
We review the district court’s grant of summary judg-
ment de novo. Jenkins v. Price Waterhouse Long Term Disabil-
ity Plan, 564 F.3d 856, 860 (7th Cir. 2009). Where, as here,
Nos. 10-3898 & 11-1006 9
the plan grants the administrator the discretion to deter-
mine eligibility and construe the plan terms, we review
the administrator’s decision under an arbitrary and
capricious standard. Id. Under this standard, “an admin-
istrator’s interpretation is given great deference and
will not be disturbed if it is based on a reasonable inter-
pretation of the plan’s language.” Wetzler v. Ill. CPA Soc’y
& Found. Ret. Income Plan, 586 F.3d 1053, 1057 (7th Cir.
2009). In evaluating whether the administrator’s decision
was arbitrary and capricious, we may consider, among
other factors, the administrator’s structural conflict of
interest and the process afforded the parties. Chalmers v.
Quaker Oats Co., 61 F.3d 1340, 1344 (7th Cir. 1995); see
also Majeski v. Metro. Life Ins. Co., 590 F.3d 478, 482 (7th
Cir. 2009) (the gravity of the administrator’s conflict of
interest may be “inferred from the circumstances of the
case, including the reasonableness of the procedures by
which the plan administrator has decided the claim”).3
3
Weitzenkamp, in her reply brief, argues that a de novo stan-
dard should apply to our review because of certain perceived
procedural errors Unum committed in processing her claim.
She cites to no law supporting this position, however. These
alleged procedural violations do not mandate a different
standard of review but instead will be considered as factors
in determining whether Unum’s decision to discontinue
benefits was arbitrary and capricious. See Metro. Life Ins. Co.
v. Glenn, 554 U.S. 105, 115, 128 S. Ct. 2343, 171 L. Ed. 2d 299
(2008) (“We do not believe that Firestone’s statement implies
a change in the standard of review, say, from deferential to
(continued...)
10 Nos. 10-3898 & 11-1006
A.
Weitzenkamp makes numerous arguments regarding
the substantive unreasonableness of Unum’s application
of the self-reported symptoms limitation to her bene-
fits claim. The district court concluded that the self-re-
ported symptoms limitation applies to Weitzenkamp’s
fibromyalgia because the pain and fatigue associated with
it, like the diagnosis itself, cannot be independently
verified. The district court’s interpretation was informed
by Unum’s intention “to curtail the possible abuse and
malingering that could occur for claims based on condi-
tions that are, at their core, based on credibility rather
than verifiable tests or procedures.” 2010 WL 4806979, at *7
(E.D. Wis. Nov. 19, 2010); see id. at *8 (“Although making
such a limitation explicit would have been clearer, it is
not as though the definition of self-reported symptoms
is shrouded in mystery. It limits benefits based on claims
of pain, fatigue, soreness, etc. and that is all we have
here.”). It held that Unum’s denial of benefits was not
arbitrary and capricious.4
3
(...continued)
de novo review. Trust law continues to apply a deferential
standard of review to the discretionary decisionmaking of a
conflicted trustee, while at the same time requiring the re-
viewing judge to take account of the conflict when deter-
mining whether the trustee, substantively or procedurally,
has abused his discretion.”).
4
While Weitzenkamp did admit in the district court that the
amount of pain cannot be objectively verified, she also argued
(continued...)
Nos. 10-3898 & 11-1006 11
To determine whether the self-reported symptoms
limitation applies here, we begin with the language of the
plan, which provides in relevant part:
Disabilities, due to sickness or injury, which are
primarily based on self-reported symptoms, and
disabilities due to mental illness, alcoholism or drug
abuse have a limited pay period up to 24 months.
Self-reported symptoms means the manifestations
of your condition which you tell your doctor that
are not verifiable using tests, procedures or clinical
examinations standardly accepted in the practice
of medicine. Examples of self-reported symptoms
include, but are not limited to headaches, pain,
fatigue, stiffness, soreness, ringing in ears, dizziness,
numbness and loss of energy.
The plan limits payment for “[d]isabilities, due to sickness
or injury, which are primarily based on self-reported
symptoms,” but the parties disagree as to what this
clause means. Unum alleges that the focus is on whether
the limitation on function is primarily based on self-
reported symptoms. Although Weitzenkamp’s argu-
ment is convoluted at times, she argues at least in part
that the focus must be on whether the diagnosis of
the disease itself is primarily based on self-reported
symptoms.
4
(...continued)
that Unum ignored objective evidence of her pain and disability
including MRIs, steroid injections, range of motion testing,
physical examinations, and trigger point testing.
12 Nos. 10-3898 & 11-1006
Although one can read the clause literally as Unum
proposes (the plural self-reported systems clause
modifies the plural “Disabilities” rather than the singular
“illness or injury,” suggesting that if the inability to
perform work is self-reported, the limitation applies),
when the clause is considered in context and in light of
actual application, the only viable conclusion is that the
self-reported symptoms limitation applies to disabling
illnesses or injuries that are diagnosed primarily based
on self-reported symptoms rather than to all illnesses
or injuries for which the disabling symptoms are self-
reported. The contrary interpretation advanced by
Unum would sweep within the limitation virtually all
diseases, leaving only a small subset for coverage beyond
that time period. For most illnesses or injuries, the dis-
abling aspect is not the disease itself, but the pain, weak-
ness, or fatigue caused by that illness or injury. Even
diseases that are extremely likely to cause an inability to
work, such as stage IV cancer or advanced heart disease,
are disabling because of the pain, weakness or fatigue.
Under Unum’s interpretation, however, those diseases
would fall within the twenty-four-month limitation
because pain, weakness and fatigue are self-reported
symptoms that are difficult if not impossible to verify
using objective medical evidence. In fact, at oral argu-
ment, Unum conceded that under its interpretation
the provision would limit coverage for all conditions
in which the disabling symptom is pain. Unum even
maintained this was true regardless of the etiology of
the pain, so that even if the underlying condition were
highly likely to cause pain, the limitation would apply
Nos. 10-3898 & 11-1006 13
because the pain itself is self-reported and not verifiable.
Despite this bold assertion, we have no indication that
Unum actually applies or proposes to apply this limita-
tion to disabilities based on diagnoses that can be objec-
tively verified by clinical tests, procedures, and clinical
examinations. Neither could this court countenance a
reading that would allow Unum arbitrarily to disallow
any illness or injury that it preferred not to cover while
not making that explicit in its SPD. Although we must
give deference to the administrator’s interpretation of
the plan terms, see Marrs v. Motorola, Inc., 577 F.3d 783,
787 (7th Cir. 2009) (citing Ross v. Indiana State Teacher’s
Ass’n Ins. Trust, 159 F.3d 1001, 1011 (7th Cir. 1998)),
we cannot conclude that Unum’s interpretation is rea-
sonable.
The remaining question is whether the diagnosis of
disabling fibromyalgia in the present case was based
primarily on Weitzenkamp’s self-reported symptoms or
on objective medical evidence. Weitzenkamp was diag-
nosed following the 18-point “trigger test” for the condi-
tion. We have recognized that the trigger test can “more
or less objectively” establish the disease where the
findings of the test are consistent with fibromyalgia.
Hawkins v. First Union Corp. Long-Tem Disability Plan,
326 F.3d 914, 919 (7th Cir. 2003). Chronister v. Baptist
Health, 442 F.3d 648, 656 (8th Cir. 2006), held that the
claimant’s fibromyalgia was not within the self-
reported symptoms limitation in light of that court’s
having already accepted that the trigger test “qualifies
as a clinical examination standardly accepted in the
practice of medicine.” Significantly, even Unum does not
14 Nos. 10-3898 & 11-1006
dispute that the diagnosis is objectively verifiable. Be-
cause the disabling illness in this case, fibromyalgia, is not
primarily based on self-reported symptoms, but rather
can be based on the verifiable evidence of its manifesta-
tions, the self-reported symptoms limitation does not
apply in this case.5
B.
The district court found that Unum is entitled to
recover $9,089 in overpayments it made to Weitzenkamp.
Weitzenkamp does not dispute that Unum may recover
an overpayment of benefits pursuant to the reimburse-
ment provision in the plan. See Gutta v. Standard Select
Trust Ins. Plan, 530 F.3d 614, 620-21 (7th Cir. 2008) (citing
Sereboff v. Mid Atl. Med. Servs., 547 U.S. 356, 126 S. Ct. 1869,
164 L. Ed. 2d 612 (2006)). While she did not raise any
opposition to Unum’s counterclaim in the district court,
Weitzenkamp now argues that § 207(a) of the Social
Security Act, 42 U.S.C. § 407(a), precludes Unum from
recovering any overpayment that resulted from her
5
This conclusion obviates our need to address the issue on
which we rested our initial opinion, that Unum’s failure to
include the self-reported symptoms limitation in the
SPD warranted granting Weitzenkamp equitable relief. We
acknowledge, without deciding, that CIGNA Corp. v. Amara, __
U.S. ___, ___ , 131 S. Ct. 1866, 1877, 179 L. Ed. 2d 843 (2011),
may undermine that result because Weitzenkamp has failed
to identify any harm that flowed from the failure to include
the limitation in the SPD.
Nos. 10-3898 & 11-1006 15
receipt of social security benefits. Generally, “we will
not consider an argument not passed on below, but we
may appropriately do so where, as here, the parties
have briefed it and the resolution is clear.” Faulkenberg v.
CB Tax Franchise Sys., LP, 637 F.3d 801, 807 (7th Cir. 2011).
Section 207(a) provides that social security benefits
shall not “be subject to execution, levy, attachment,
garnishment, or other legal process.” Weitzenkamp
argues that Unum’s counterclaim effectively seeks an
equitable lien on her social security benefits. True, Unum
cannot impose a lien directly on Weitzenkamp’s
social security benefits. But Unum recognizes this and
instead seeks an equitable lien on specific funds it paid
Weitzenkamp under the plan to which it has a claim
for reimbursement. This does not contravene § 207(a).
See Hall v. Liberty Life Assurance Co. of Boston, 595 F.3d
270, 274-75 (6th Cir. 2010). To paraphrase Cusson v.
Liberty Life Assurance Co. of Boston, 592 F.3d 215, 232
(1st Cir. 2010), although the amount in question happens
to be the same as the amount of Weitzenkamp’s retro-
active social security payment, the funds Unum is
targeting do not come from social security. Rather, they
come from overpayments Unum paid to Weitzenkamp.
Thus, § 207(a) does not bar recovery.
III.
Unum filed a conditional cross-appeal to preserve its
right to challenge the district court’s non-dispositive
finding that Unum’s determination of no disability was
arbitrary and capricious. This challenge by way of cross-
16 Nos. 10-3898 & 11-1006
appeal was procedurally improper. A cross-appeal is
appropriate only if a prevailing party seeks a judgment
different from that rendered by the district court. See
United States v. Tarkowski, 248 F.3d 596, 602-03 (7th Cir.
2001). With its cross-appeal, Unum seeks not to alter
the judgment, i.e., the bottom line, but to advocate
an alternate ground for affirming the district court’s
judgment that the denial of benefits was proper. While
advancing this alternate ground asks us to reject the
district court’s reasoning on the no disability issue, such
an attack can and should have been raised by Unum in
this appeal. See Wellpoint, Inc. v. C.I.R., 599 F.3d 641, 650
(7th Cir. 2010) (“[T]he appellee may, without taking a
cross-appeal, urge in support of a decree any matter
appearing in the record, although his argument may
involve an attack upon the reasoning of the lower court or an
insistence upon matter overlooked or ignored by it.” (quoting
United States v. Am. Ry. Express Co., 265 U.S. 425, 435, 44
S. Ct. 560, 68 L. Ed. 1087 (1924)). We indicated as much
to Unum in a show-cause order issued in No. 11-1006
prior to Unum’s having filed its brief in this case. Unum
maintained, however, that its cross-appeal was proper,
relying on Council 31, American Federation of State, County,
& Municipal Employees, AFL-CIO v. Ward, 978 F.2d 373,
380 (7th Cir. 1992), a case in which we decided a condi-
tional cross-appeal of the district court’s class certifica-
tion order after reversing its grant of summary
judgment in the defendant’s favor. Subsequent cases,
however, have reiterated the rule that cross-appeals are
not appropriate in routine cases like ours that raise
only alternate grounds for affirmance of the judgment
Nos. 10-3898 & 11-1006 17
and not an independent issue like the propriety of class
certification. See, e.g., Am. Bottom Conservancy v. U.S.
Army Corps of Eng’rs, No. 10-3488, slip op. at 16 (7th Cir.
June 14, 2011); Tarkowski, 248 F.3d at 602-03. As Unum
did not raise its alternate arguments in this appeal, it
forfeited the ability to challenge the district court’s
finding on the disability issue.
IV.
What remains, then, is to determine the appropriate
remedy, either reinstatement of benefits or remand to
Unum for further proceedings consistent with this
opinion. “In fashioning relief 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 defec-
tive procedures given the status quo prior to the denial
or termination’ of benefits.” Schneider v. Sentry Grp. 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)). Here,
Unum had previously determined that Weitzenkamp
was entitled to benefits under the “own occupation”
standard. Her benefits were terminated approximately
two months after the “any occupation” standard took
effect. In its denial letter, Unum agreed that Weitzenkamp
did not “have reliable, sustainable functional capacity at
any level of physical demand” while at the same time
noting that the Social Security Administration’s evalua-
tion of her functional capacity indicated that she was
not precluded from performing her own occupation.
18 Nos. 10-3898 & 11-1006
Weitzenkamp’s treating rheumatologist, however, con-
cluded that “[d]espite interventions by neurology, psych-
iatry, psychology, neuropsychology, orthopedics, physia-
try, integrative medicine, [and a] pain program
with multiple interventions from these services,
[Weitzenkamp] remains unable to work.” The district
court found that Unum’s arguments against this
conclusion failed even under arbitrary and capricious
review. After a review of the record, we agree that the
record evidence points to a finding of disability under
the “any occupation” standard. See Holmstrom v. Met. Life
Ins. Co., 615 F.3d 758, 778 (7th Cir. 2010) (“[W]e tend to
award benefits when the record provides us with a
firm grasp of the merits of the participant’s claim.”).
Reinstatement of benefits, retroactive to August 22, 2008,
is thus appropriate. Unum is free to revisit Weitzenkamp’s
present eligibility for benefits, proceeding in a manner
consistent with this opinion and that of the district court
on the disability issue.
CONCLUSION
We reverse the district court’s judgment on the ap-
plication of the self-reported symptoms limitation and
remand with instructions to order Unum to reinstate
Weitzenkamp’s benefits retroactive to August 22, 2008.
We affirm the judgment on Unum’s counterclaim. Unum’s
cross-appeal, No. 11-1006, is dismissed.
9-20-11