Marantz v. Permanente Medical Group, Inc.

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-1136

S USAN M ARANTZ,
Plaintiff-Appellant,
v.

P ERMANENTE M EDICAL G ROUP, INC.
L ONG T ERM D ISABILITY P LAN and
L IFE INSURANCE C OMPANY OF
N ORTH A MERICA,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-03051—James F. Holderman, Chief Judge.

A RGUED JANUARY 6, 2011—D ECIDED JULY 10, 2012

Before E ASTERBROOK, Chief Judge, and C UDAHY and
R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Susan Marantz sued her em-
ployer, the Permanente Medical Group, Inc. and the Life
Insurance Company of North America (LINA), claiming
that they violated the Employee Retirement Income
2 No. 10-1136

Securities Act (ERISA) by refusing to provide her with
long-term disability payments as required under the
employer’s disability insurance plan. LINA denied that
Dr. Marantz qualified for the benefits and the district
court held that Dr. Marantz did not satisfy her burden
of proving that in April 2005 she was entitled to long-
term disability benefits under the terms of the policy.
On appeal, we affirm the holding of the district court.

I.
Before Susan Marantz became a patient visiting many
back and pain specialists, she was herself the doctor.
From 1996 to 1999, Dr. Marantz practiced pulmonary
and critical care medicine at a Kaiser Permanente Hos-
pital in California. Before she left that position in 1999,
Dr. Marantz served as the chief of pulmonary and
critical care medicine, and as assistant head of quality
assurance and director of utilization. She performed
procedures such as bronchoscopes and intubations,
inserted arterial lines, and was standing for many hours
at a time. In response to back pain, in 1997 Dr. Marantz
underwent surgery to treat a herniated disc and degen-
erative disc disease, but the surgery did not eliminate
her pain and, as of August 1999, she stopped working
full time.
As a benefit of her employment with Kaiser Permanente,
Dr. Marantz received disability insurance coverage from
LINA. On October 13, 1999, Dr. Marantz filed a claim
with LINA seeking long-term disability benefits,
claiming that radiculopathy, pain, and paresthesia pre-
No. 10-1136 3

vented her from performing her duties as chief of pulmo-
nary care. The policy under which she made the claim
stated as follows:
For purposes of coverage under the Policy, you are
Disabled if, because of Injury or Sickness, you are
unable to perform all the material duties of your
regular occupation, or solely due to Injury or Sick-
ness, you are unable to earn more than 80% of
your Indexed Covered Earnings.
After Disability Benefits have been payable for
60 months, you are Disabled if your Injury or
Sickness makes you unable to perform all the
material duties of any occupation for which you
may reasonably become qualified based on educa-
tion, training or experience, or solely due to Injury
or Sickness, you are unable to earn more than 80%
of your Indexed Covered Earnings.
(R. 75 at L1421). LINA approved the claim under the
first paragraph above, and began paying benefits as of
February 9, 2000. In July of that year, Dr. Marantz had
another spinal surgery but her low back and leg pain
continued. MRIs taken in early 2000 revealed degen-
erative disc disease and spinal stenosis. In Decem-
ber 2000, upon Marantz’s request, LINA provided
$26,000 in funding for Marantz to enroll in Johns Hopkins
University’s online Masters of Public Health program,
so that she might retrain for a medical career that was
less physically demanding.
In June 2001, Marantz moved to Chicago and began
working approximately twenty hours per week for the
4 No. 10-1136

Illinois Department of Public Health as medical director
of both the bureau of medical programs and the tuber-
culosis program. Her earnings allowed LINA to offset
the disability benefits and reduce its monthly payment
from $7,616 to approximately $5,000 per month. While
working at the Department, Dr. Marantz completed
eighty credit hours of course work and earned her
master’s degree in public health in 2004.
LINA paid Dr. Marantz’s disability benefits for the sixty-
month period beginning February 2000 under the defini-
tion of disability applicable to that period—that is, the
first definition of disability recited above at page 3. During
this period, LINA periodically asked Dr. Marantz’s physi-
cians to assess her condition. In March 2001, Kirk
Pappas, M.D. stated that in an eight-hour day, Dr. Marantz
could occasionally (up to 2.5 hours) sit, stand, walk,
climb, and reach, and that she was a suitable candidate
for rehabilitation. In September 2001, Joseph Skom,
M.D. stated that Dr. Marantz could perform clerical,
administrative, and sedentary work. In November 2003,
Rochelle Parker, M.D. reported that Marantz’s limita-
tions were moderate and would not preclude sedentary
work.
In August 2004, LINA began to investigate whether
Dr. Marantz satisfied the policy’s more stringent defini-
tion of disability which was to became relevant after the
first sixty months of payments. That definition, set forth
more fully in the second paragraph of the policy recited
supra at page 3, states that a worker is disabled if he or
she is unable to perform all the material duties of any
No. 10-1136 5

occupation for which [that worker] may reasonably become
qualified based on education, training or experience, as
opposed to an inability to perform “all the duties of
[the worker’s] regular occupation”—the definition of dis-
ability applicable in the first sixty months. To aid its
inquiry, LINA obtained updated medical records from
Dr. Marantz’s treating physicians, and hired an investi-
gative firm to perform video surveillance.
In January 2005, LINA asked Dr. Marantz to undergo
a functional capacity evaluation to assess her current
physical and functional abilities and her potential
to return to work. Dr. Marantz’s personal physician ac-
knowledged at trial that she has ordered such evalua-
tions and that they do indeed measure a person’s
strength, body mechanics, and cardiovascular function
in relation to ability to work. (R. 134, Tr. 149:24-150:3).
Christie Burns, a licensed and registered occupa-
tional therapist at HealthSouth conducted the testing,
which lasted approximately three to four hours over
two consecutive days. During the tests, Dr. Marantz
reported pain with certain movements and was unable
to perform or complete certain tasks. For example,
Dr. Marantz’s lumbar extension was only three percent
of normal. Ms. Burns testified that Dr. Marantz’s com-
plaints of pain and discomfort were consistent and
not exaggerated. After completing the testing on April 4
and 5, 2005, Ms. Burns concluded that Dr. Marantz
was capable of performing light work under the U.S.
Department of Labor’s classification system. Specif-
ically, Ms. Burns concluded that Dr. Marantz was able
6 No. 10-1136

to sit for 5.5 hours or more and stand and walk for 2.5-5.5
hours. The ability to perform “light work” also indicated
that Dr. Marantz could perform jobs in the less de-
manding category of “sedentary work.”
Before and after the functional capacity evaluation
testing, the investigative firm Photofax conducted sur-
veillance of Dr. Marantz. The surveillance video shows
Dr. Marantz running across a busy street in heeled
boots; shopping at Home Depot, Neiman Marcus,
Loehmann’s, and Nordstrom Rack; lifting heavy items into
her car; riding a stationary bike in a group exercise class at
a health club; and, after the second day of the evaluation,
shopping at a fur store and Petco. The investigators
followed Dr. Marantz for five days, but only recorded
activity on three of those days. Dr. Marantz testified that
one of the surveillance days was unusual in that she was
hosting a friend who was visiting Chicago from out-of-
town.
Shortly after the functional capacity evaluation, LINA’s
medical director, Dr. Robert Manolakas, reviewed the
results and agreed with the finding that Dr. Marantz
could move from part-time work to full-time sedentary
or light work. Dr. Manolakas never physically examined
Dr. Marantz, but rather based his conclusions on the
following factors: (1) Dr. Marantz was not, at that time,
under the care of a physician for low back pain; (2) she
was working part time; (3) she exercised extensively;
(4) although an MRI showed stenosis and disc disease,
her spine was stable and her neurological exam, strength
reflexes, and sensation were normal; (4) there was no
No. 10-1136 7

documentation of neuromuscular atrophy in her lower
extremities; and (5) her claims of debilitating pain were
inconsistent with her use of weak analgesics.
A few days later, on April 21, 2005, the case manager
from LINA, John Buchanan, faxed the functional
capacity evaluation to Dr. Marantz’ treating internist,
Elizabeth Anderson, and then called her to discuss the
findings. That same day Mr. Buchanan also sent a letter to
Dr. Anderson summarizing their conversation. Ac-
cording to the letter, Dr. Anderson purportedly informed
Dr. Manolakas that Dr. Marantz was physically capable
of performing light demand work, meaning she could
sit and stand or walk for six hours cumulatively in an
eight-hour day, she could lift and carry up to twenty
pounds for a maximum of one third of the day, and
lift and carry ten pounds for up to two thirds of the
day. The letter also stated that Dr. Marantz had no
other restrictions, either postural or manipulative.
Dr. Manolakas asked Dr. Anderson to amend any state-
ments which she believed to be inaccurate and fax
him a corrected version of the letter.
On that same day, Margie Munoz, M.S., C.R.C., con-
ducted a transferrable skills analysis. The analysis com-
pared Dr. Marantz’s skills, training, and physical
abilities documented in the functional capacity evalua-
tion with the job requirements for different occupations
set forth in the Department of Labor’s Enhanced
Dictionary of Occupational Titles to determine what
jobs Dr. Marantz could perform. The analysis in-
dicated that Dr. Marantz could perform the duties of a
8 No. 10-1136

pulmonary medicine physician, which was classified as
a light duty occupation.
Again, on that same day, Mr. Buchanan notified
Dr. Marantz that LINA was terminating her long-term
disability benefits because, based on the results of the
functional capacity evaluation, coupled with Dr. Ander-
son’s and Dr. Manolakas’ assessments, LINA had deter-
mined that she did not meet the more stringent defini-
tion of “disabled” applicable after the first sixty months
of disability.
A few days later, on April 26, 2005, Dr. Marantz sent
LINA a letter disputing the termination and arguing
that Dr. Anderson had only certified her ability to work
for four to six hours a day, which was not compatible
with the practice of pulmonary medicine. She also in-
cluded a report from Jeffrey Karasick, M.D., a neurosur-
geon who had performed an independent medical exam
in April 2002, and concluded that Dr. Marantz’s deci-
sion to cease practicing pulmonary medicine was
reasonable, despite the fact that she was capable of per-
forming activities of daily living. Dr. Karasick reached
this conclusion as part of an examination for a private
disability insurer, Unum Provident, through which
Dr. Marantz also received benefits. As part of Unum’s
investigation of Dr. Marantz’s disability claim, two
doctors, Dr. Karasick and Dr. Julie Wehner conducted
independent medical exams in April 2002. Dr. Karasick
concluded that Dr. Marantz was unable to perform her
occupation as a pulmonologist, that her condition was
permanent, and that additional therapy would be of
No. 10-1136 9

no use. Dr. Wehner came to the opposite conclusion,
reporting that Dr. Marantz could return to her prior
occupation as a pulmonary physician. Ultimately Unum
Provident accepted the former conclusion and accepted
liability on the claim.
The next day, Dr. Anderson faxed LINA an addendum
to her April 21 letter, stating that Dr. Marantz was unable
to bend at the waist for longer than a few seconds, and
unable to work for more than four to six hours a day.
When Dr. Manolakas telephoned Dr. Anderson a few
days later, however, Dr. Anderson reported that the
additional restrictions identified in her addendum
were based on Dr. Marantz’s report of her limitations
and not on Dr. Anderson’s own clinical assessment of the
situation. During her deposition, Dr. Anderson main-
tained that Dr. Manolakas called her office after it had
closed and that she may not have been entirely accurate
as she was unable to look at Dr. Marantz’s chart when
they spoke. Dr. Anderson’s position at the deposition
was that other doctors had evaluated Dr. Marantz and
that although she was able to sign the disability papers
based on her assessments of these evaluations, she
herself had not determined that Dr. Marantz was dis-
abled. In forms submitted to RBC Insurance and Unum
Provident, Dr. Anderson indicated that she had not
released Dr. Marantz to work as a pulmonologist, but
had released her to work in “any occupation.” The
exact meaning of this language is unclear.
In August 2005, Dr. Marantz’s counsel appealed LINA’s
decision, attaching reports from John E. Sargent, M.S.,
10 No. 10-1136

CRC, a vocational expert, and Dr. Susan Keeshin, M.D., a
physician board certified in physical and rehabilitation
medicine. Sargent stated that Dr. Marantz could not
work as a pulmonologist because she had limited ability
to bend and was unable to work more than a six-hour
day. Dr. Keeshin, who had been treating Dr. Marantz
since May 2005, stated that Dr. Marantz could walk no
farther than one city block, that she could not sit or
stand for more than twenty minutes, that she could
occasionally lift and carry less than ten pounds, and
could never lift more than twenty pounds. She estimated
that she would likely be absent from work more than
four days per month. She based these assessments on
Dr. Marantz’s descriptions of her own pain, how it oc-
curred, and how it was affecting her ability to perform,
rather than on any specific medical test. Her esti-
mate of absences was based on an assumption of work
as a full-time pulmonologist. She did not estimate
how much time off Dr. Marantz might need in a part-
time sedentary position. On June 20, 2005, Dr. Keeshin
prepared an “attending physician supplementary state-
ment” for RBS Insurance in which she stated that
Dr. Marantz was unable to work for more than twenty-
five hours a week, and was able to perform a sedentary
job. Dr. Keeshin testified at trial that she never evaluated
whether Dr. Marantz could perform a full-time job in
another field because she felt that her role was not to
assess Dr. Marantz’s functionality, but rather to assist
her with pain management and increase her functionality.
Dr. Marantz’s appeal also included a May 2005
MRI report and an electromyographic testing report. The
No. 10-1136 11

reports indicated that Marantz had several herniated
discs, at least one of which had worsened since 2000,
radiculitis, and scar tissue from the prior disc surgery.
She also submitted a medical report from Dr. Keeshin
that reiterated that Dr. Marantz had herniated discs,
radiculitis, limited range of motion, chronic low back
pain, pain with movement, a painful right sacroiliac
joint, and an increasingly rounded back. Dr. Keeshin
concluded that Dr. Marantz could not sit or stand for
more than twenty minutes at a time, was limited to
sitting, standing, or walking for less than two hours
total in an eight-hour day, was limited to walking less
than one city block, and could work only in a sedentary
position, and not work for more than twenty-five
hours per week. Dr. Keeshin testified that MRIs
may not necessarily reflect functional ability and that
she had patients with pathology on their MRIs that
were working full time.
Dr. Marantz also submitted John Sargent’s detailed
vocational analysis which concluded that the medical
findings would prevent Dr. Marantz from returning to
work as a pulmonologist and that she would be unable
to earn 80% of her pre-disability earnings in a part-time
sedentary position.
In November 2005, while her appeal with LINA was
pending, Dr. Marantz began working as the Director of
the Suburban Cook County Tuberculosis Sanitarium,
in which position she resumed clinical responsibilities,
including examining patients. She worked about twenty
hours per week, including taking calls by phone to
12 No. 10-1136

consult with nurses. During this time, she co-authored
articles, gave speeches, and appeared before the Cook
County Board of Commissioners.
In response to the appeal, LINA asked a certified re-
habilitation counselor, Virginia Schmidt, M.S., to con-
duct a new transferrable skills analysis to determine
whether Dr. Marantz could meet her wage replacement
requirement in a sedentary position. Schmidt identified
sedentary positions for which Dr. Marantz was qualified
and calculated that her wage replacement requirement
was $137,313.72 per year. Ms. Schmidt hired an outside
consultant, Sue Howard, to conduct a labor market
survey to determine whether Dr. Marantz could meet
that salary requirement in a sedentary position not re-
quiring patient care. Based on the consultant’s research,
Ms. Schmidt determined that Dr. Marantz was qualified
for various sedentary positions including four specific
open positions in the area with salaries that ranged
from $130,000-$170,000. Ms. Howard believed that
Dr. Marantz could command a salary at the high end
of the ranges based on her extensive administrative
experience and pay grade for her then current position.
On January 24, 2006, Gary Pearson of LINA sent
Dr. Marantz’s counsel a letter stating that LINA was
affirming the termination of her long-term disability
benefits based on the evidence which indicated that she
was capable of earning more than 80% of her indexed
covered earnings in a sedentary position. Mr. Pearson
testified that he affirmed the termination decision based
on the functional capacity evaluation, the labor market
survey, the assessments of Dr. Manolakas, Dr. Anderson,
No. 10-1136 13

Dr. Keeshin, and Ms. Burns, and all the evidence in the
record, including the surveillance videos, although he
testified that he had not reviewed the updated MRI
and EMG evidence.
Dr. Marantz filed suit under 29 U.S.C. § 1133, in the
district court for the Central District of California,
alleging that the termination of her benefits violated
ERISA. After the case was transferred to the Northern
District of Illinois, Judge Moran denied cross-motions
for summary judgment and conducted a bench trial.
Judge Moran died before rendering a judgment, and
Chief Judge Holderman assumed responsibility for
the case. Judge Holderman reviewed the trial record
and then, on December 4, 2009, conducted a limited sup-
plementary bench trial which included testimony by
Dr. Marantz and oral argument from both sides’ counsel.
On December 21, 2009, Judge Holderman entered judg-
ment in the defendants’ favor, finding that Dr. Marantz
had not satisfied her burden of proving that in April
2005 she was entitled to long-term disability benefits
under the terms of the policy. Dr. Marantz claims the
district court erred and thus we review that decision here.

II.
A district court conducts a de novo review of a
denial of benefits under an ERISA plan unless the
plan documents grant the claim fiduciary discretionary
authority to construe the policy terms to decide
eligibility for benefits, which in this case it does not.
Ruttenberg v. U.S. Life Ins. Co., 413 F.3d 652, 659 (7th Cir.
14 No. 10-1136

2005). On appeal, we follow our ordinary standard of
appellate review. We review the district court’s findings
of fact and application of law to those findings for clear
error. Integrated Genomics, Inc. v. Gerngross, 636 F.3d 853,
863 (7th Cir. 2011). Dr. Marantz recognizes that this is
the standard of review that would ordinarily apply, but
urges this court to alter course based on the unusual
circumstances of this case, that is, that the district
court judge died after hearing the evidence but before
issuing an opinion and the case was then reassigned to
a different district court judge, Judge Holderman. Dr.
Marantz argues that we should not grant the normal
deference to the successor judge’s findings of fact as he
heard only one witness, and reviewed the rest of the
evidence in the record on paper.
Under Federal Rule of Civil Procedure 63, upon
request of any party, Judge Holderman was required to
recall any witness whose testimony was material and
disputed. Judge Holderman directed the parties to
review the rule and report on whether any witnesses
should be recalled, but both parties elected to stand on
the transcripts. After reviewing the post-trial briefs,
Judge Holderman sua sponte recalled Dr. Marantz, and
heard her testimony for several hours, thus allowing
him ample opportunity to assess the credibility of the
primary witness. He also reviewed the transcripts and
the exhibits from the earlier trial. Dr. Marantz agreed
to allow the case to proceed on the transcripts alone
and thus cannot now complain that the use of the tran-
scripts along with several hours of Dr. Marantz’s
new testimony (which she did not request) was not
sufficient to allow for clear error review.
No. 10-1136 15

In many ways, this situation is akin to that which
occurs when a court reviews findings derived from stipu-
lated facts, as the parties agreed to stand on the tran-
scripts. Where the district court adopts a stipulated fact
wholesale, an appellate court need review those facts
only for clear error. United States v. Firishchak, 468 F.3d
1015, 1023 (7th Cir. 2006). See also May v. Evansville-
Vanderburgh Sch. Corp., 787 F.2d 1105, 1115-16 (7th Cir.
1986) (where parties agree to a judgment on stipulated
facts, “[i]n effect the judge is asked to decide the case as
if there had been a bench trial in which the evidence
was the depositions and other materials gathered in
pretrial discovery”).
The standard of review that governs is therefore the
one found in Fed. R. Civ. P. 52(a). As we would after a
bench trial, we will review the district court’s legal con-
clusions de novo and review any factual inferences
the district court made from the stipulated record as
well as its application of the law to the facts for clear
error. See Johnson v. West, 218 F.3d 725, 729 (7th Cir. 2000);
Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456, 461
(7th Cir. 2001).
Using this standard, we begin with a discussion of the
surveillance video evidence, as it appears to be the evi-
dence most highly disputed. Dr. Marantz condemned
the surveillance video evidence on two grounds, noting
first that it did not support LINA’s determination,
and second that it was impermissible for LINA to rely
on it. Dr. Marantz argues that LINA did not claim that
it had relied on the surveillance video until after the
litigation commenced, in violation of what Dr. Marantz
16 No. 10-1136

claims is ERISA’s prohibition of post-hoc rationaliza-
tions, citing 29 U.S.C. § 1133; 29 C.F.R. § 2560.503-1(g)(1)(i).
It is far from clear that LINA violated ERISA by failing
to mention the surveillance in the letter denying Dr.
Marantz’s administrative appeal. The ERISA statute Dr.
Marantz cites, 29 U.S.C. § 1133, requires only that an
employee benefit plan
(1) provide adequate notice in writing to any partici-
pant or beneficiary whose claim for benefits under
the plan has been denied, setting forth the specific
reasons for such denial, written in a manner cal-
culated to be understood by the participant, and
(2) afford a reasonable opportunity to any participant
whose claim for benefits has been denied for a full
and fair review by the appropriate named fiduciary
of the decision denying the claim.
Id. It does not appear to require the plan to identify
each and every piece of evidence that it relied upon in
reaching its decision to deny benefits. Neither does the
accompanying regulation Marantz cites which states,
Except as provided in paragraph (g)(2) of this
section, the plan administrator shall provide a
claimant with written or electronic notification of any
adverse benefit determination. . . . The notification
shall set forth, in a manner calculated to be under-
stood by the claimant—
(I) The specific reason or reasons for the adverse
determination;
29 C.F.R. § 2560.503-1(g)(1)(i).
No. 10-1136 17

More importantly, a district court’s judicial review of
LINA’s decision is de novo. The “de novo” review in
this context, however, is different than de novo review
as we ordinarily use the term in this court. In an ERISA
case, the district court “must come to an independent
decision on both the legal and factual issues that form
the basis of the claim.” Diaz v. Prudential Ins. Co. of Am.,
499 F.3d 640, 643 (7th Cir. 2007). That means that
whether the plan administrator gave the employee a
full and fair hearing or undertook a selective review of
the evidence is irrelevant. In fact, “the district courts
are not reviewing anything; they are making an indep-
endent decision about the employee’s entitlement to
benefits.” Id. Under de novo review, therefore, the sur-
veillance video would be proper evidence in the
district court even if LINA had violated ERISA by
failing to note the video in its decision letters. The
district court’s role was to make an independent deci-
sion about Dr. Marantz’s entitlement to benefits, and
therefore any procedural foibles LINA may have made
are irrelevant on appeal. Id. In this context it is clear
that the district court properly considered the surveil-
lance video. The district court entered final judgment
following a bench trial so its findings of fact must not
be set aside unless clearly erroneous. Cohen Dev. Co. v. JMJ
Props., Inc., 317 F.3d 729, 735 (7th Cir. 2003).
Moreover, both LINA’s appeals claim manager, Gary
Pearson, and its medical director, Dr. Manolakas, testified
without contradiction that they considered the surveil-
lance video in reaching their decisions that Dr. Marantz
could perform full-time work. Dr. Marantz’s counsel
18 No. 10-1136

had the opportunity to review and respond to the videos
prior to trial, as evidenced by her final appeal letter
to LINA (R. 75 at L196).
Dr. Marantz also hopes to convince us that surveillance
data is inherently unreliable. And to be sure, it does
have its limitations. The cases Marantz cites in support
of her position, however, note the specific instances in
which surveillance data is unhelpful or unreliable with-
out dismissing such evidence per se. See, e.g., Mote v.
Aetna Life Ins. Co., 502 F.3d 601, 609 (7th Cir. 2007); Osbun
v. Auburn Foundry, Inc., 293 F. Supp. 2d 863, 870 (N.D. Ind.
2003).1 Surveillance evidence is of limited utility, the
cases tell us, when the recorded data does not conflict with
the applicant’s self reports of limitations, or when the
surveillance catches limited bursts of activity that might
be anomalous. See, e.g., Maher v. Mass. Gen. Hosp. Long
Term Disability Plan, 665 F.3d 289, 294-95 (1st Cir. 2011);
Osbun, 293 F. Supp. 2d at 870. In other words, the
weight given to surveillance evidence of this type
depends both on the amount and nature of the activity
observed. See Maher, 665 F.3d at 294-95. Thus the cases
Marantz cites in order to discredit surveillance evidence

1
Other cases the plaintiff cites for demonstrating that “numer-
ous courts have thus rejected surveillance evidence for failing
to depict the plaintiff’s ability to perform employment on a
continuous and reliable basis,” have nothing to do with sur-
veillance at all. (Marantz Brief at 32). See, e.g., Hawkins v.
First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918
(7th Cir. 2003); Crespo v. Unum Life Ins. Co. of Am., 294 F. Supp.
2d 980, 996 (N.D. Ill. 2003).
No. 10-1136 19

do not help her much. For example, Marantz cites an
unreported decision from the Northern District of Cali-
fornia as an example of a case where the court held
that video surveillance affected the claimant's credibility,
but did not establish an ability to work on a full-time
basis. Finley v. Hartford Life and Acc. Ins. Co., No. C 06-06247
CW, 2009 WL 3517648 (N.D. Cal. Nov. 20, 2009). The
Ninth Circuit, however, reversed on appeal finding
that the ERISA plan administrator’s termination of a plan
participant’s long-term disability benefits based on the
surveillance video was not, in fact, an abuse of discretion.
Finley v. Hartford Life and Acc. Ins. Co., 400 Fed. Appx. 198,
2010 WL 4116636 (9th Cir. Oct. 19, 2010).2
Most recently Dr. Marantz has brought to our atten-
tion, through a supplemental filing, a case from the First
Circuit which Dr. Marantz says addresses the question
of the reliability of surveillance for determining entitle-
ment to disability benefits. Dr. Marantz fails to note that
the portion of the case to which she draws our attention
is the dissent, but in any event, both the dissent and
the majority seem to agree that where the evidence ob-
tained during surveillance is not inconsistent with the
claimant’s own account of her activities, then it is of
limited utility. Maher, 665 F.3d at 294-95. This conclusion is
consistent with case law from this Circuit in which courts
have approved of the use of surveillance when it is used in

2
The case was reversed after the appellant filed her brief in
chief, but before she filed her reply brief and before oral
argument.
20 No. 10-1136

conjunction with other medical evidence and demonstrates
an inconsistency between a claimant’s actual abilities and
demonstrated abilities. See, e.g., Mote, 502 F.3d at 609
(finding that the videotapes revealed the claimant engag-
ing in many of the activities that she claimed to be unable
to accomplish in her application for long-term disability
benefits and stating, consequently, that the Plan properly
considered them); Dougherty v. Ind. Bell Tel. Co., 440 F.3d
910, 917-18 (7th Cir. 2006); Shyman v. Unum Life Ins. Co., 427
F.3d 452, 456 (7th Cir. 2005); Patterson v. Caterpillar, Inc., 70
F.3d 503, 505-06 (7th Cir. 1995).
In this case, Dr. Marantz’s activity is in fact incon-
sistent with her report of her own abilities. Photofax
conducted surveillance from Monday, November 29, to
Friday, December 3, 2004, and from Saturday, April 2, to
Wednesday, April 6, 2005. The surveillance covered
ten days, approximately four months apart. According
to Dr. Marantz, she is unable to work full time and when
she arrives home from work she is exhausted. She also
claims that if she works for more than four or five hours
a day, she must increase her pain medication and needs
a day to recuperate. Yet on December 1, for example,
she left her home at 8:00 a.m., drove half an hour to the
hospital, gave a presentation and left the hospital at
noon. She then drove to a Costco near her home, pur-
chased groceries which she then lifted from the bottom
of the cart into the trunk of her car. In fact, the surveil-
lance video shows her bending into her cart, twisting
and lifting into the car nine times and then bending
into the cart another eight times to gather items into a bag
which then requires two hands and a big tug to maneuver
No. 10-1136 21

into the trunk. (R. 161, Ex. 11, 1 of 3 at 23:30 to 28:30).
Fifteen minutes later, the investigators filmed Dr. Marantz
leaving Petco and lifting an almost twenty-pound case
of dog food out of the cart and into her car, followed by
a seventeen-pound bag of dry dog food, and then
another heavy item that required two hands to lift. Id.
At the end of it all, she is seen heaving a heavy-looking
large black purse over her shoulder. Id. Next, she drove
to the post office, retrieved her mail and drove home,
arriving just before 2:00 p.m.—a full six-hour day filled
with work, driving, walking, pushing, bending, twisting,
and heavy lifting. The very next day, Dr. Marantz left
her home at 7:05 a.m., and drove to a hospital to give
another presentation, after which she drove to Woodfield
Mall where she shopped for several hours before re-
turning home just before 2:00 p.m. Rather than resting
after a full day on December first, Dr. Marantz spent
seven hours the next day working, sitting, walking,
standing, shopping, and driving without showing any
signs of pain or discomfort.
Despite two full days of activity, the next day, Decem-
ber 3, 2004, Marantz left her home at 7:30 a.m., drove to
downtown Chicago and worked at the Illinois Depart-
ment of Public Health for approximately four hours
and then met a friend for lunch at 1:00 p.m. She sat at a
table in the restaurant for about half an hour without
exhibiting signs of discomfort. After lunch, Dr. Marantz
drove her friend around Chicago until at least 3:00 p.m.
when the investigators lost track of her. The investigators
returned to her home by 3:30 and did not see her return
22 No. 10-1136

by the time they ended surveillance at 4:00 p.m. Through-
out her more than eight-hour day, she carried a large
black purse and exhibited no visible signs of pain
or discomfort.
Surveillance resumed just before Dr. Marantz’s func-
tional capacity evaluation. Two days before the evalua-
tion at which she claimed significant pain and difficulty
moving, she left her home, went to the post office and
then went shopping at Home Depot, Neiman Marcus,
Loehmann’s, and Nordstrom Rack, at one point jogging
across the street wearing boots with heels. When she
left Neiman Marcus, she was carrying two shopping bags
and had a backpack strung over one shoulder.
The next day, the day before the functional capacity
evaluation, Dr. Marantz attended an hour-long bicycle-
based exercise class (“spin class”), pedaling a stationary
bicycle, at times leaning forward and at times sitting up.
On April 5, 2005, Dr. Marantz attended the second day
of the functional capacity evaluation, during which she
complained of increased pain, parasthesia in her feet
and ankles (the feeling of “pins and needles”), and ac-
cording to her own brief, was significantly limited in
performing basic lifting, range of motion and posi-
tional exercises. Nevertheless, after leaving the exam,
Dr. Marantz went shopping at two very large stores—
American Fur Mart and Petco.
In sum, on several occasions, after working at her part-
time job, or spending several hours in rigorous physical
testing, she is seen shopping, running errands, exercising,
and loading and unloading shopping carts with heavy
No. 10-1136 23

items, despite claims that she is unable to bend, twist,
and lift more than ten pounds and is exhausted after her
part-time workdays. As the district court noted, this cannot
be explained by a “good days/bad days” scenario. (R. 143
at 20). “Bending over and lifting almost twenty pounds of
dog food cans is inconsistent behavior for someone who
should be fearful of further exacerbating a back injury
which is allegedly so severe it has prevented her from
resuming full time employment” in a sedentary position.
Id.
The shopping was not one isolated episode of activity,
but a series of long days filled with lots of activity after
Dr. Marantz had already put in her part-time hours at
work or in testing. C.f. Maher, 665 F.3d at 294 (noting
that the brief periods of slightly more vigorous
activity may have been isolated examples on a “good
day.”) The video shows numerous activities during
parts of the day that Marantz claims she is unable to
work. From it, the district court inferred that Dr. Marantz
was neither fatigued nor in pain as a result of light
work activity of sitting, driving, standing, walking, and
lifting items that weighed up to fifteen to twenty
pounds. (R. 143 at 18). The district court properly noted
that the surveillance evidence by itself was not disposi-
tive, but that it did impact Marantz’s credibility and
was probative evidence of her functional limitations. Id.
at 19-20. Not only was the surveillance video relevant
because it contradicted Marantz’s self reports, but the
district court also considered it within the proper
context of the other evidence.
24 No. 10-1136

That other evidence was plentiful and heavily relied
upon both by LINA and then the district court. Thus
Marantz’s citation to Osbun from the Northern District
of Indiana falls flat, for in Osbun the sole evidence
the plan administrator had to justify its termination of
benefits was the surveillance video. Osbun, 293 F. Supp. 2d
at 869-70. In this case, however, the surveillance
video was but one small portion of evidence upon
which LINA and the district court relied to make its deter-
mination.
Indeed, more than the surveillance, LINA relied on
the results of the April 2005 functional capacity evalua-
tion. A functional capacity examination consists of a
battery of tests to assess a patient’s current physical
and functional abilities and potential to return to work.
Dr. Marantz challenges the reliability of functional
capacity evaluations as a whole, but the cases she
cites (most of which are district court opinions, and all
of which are from outside of this Circuit) have
grievances with specific aspects of the evaluation that
are not necessarily at issue in this case. Some lasted a
mere three hours, or failed to assess the effect of pain,
or had equivocal results. See, e.g., Michael v. Am. Int’l
Group, Inc., No. 4:05CV02400 ERW, 2008 WL 4279582, at
*18 (E.D. Mo. Sept. 15, 2008); Stup v. Unum Life Ins. Co.
of Am., 390 F.3d 301, 309-10 (5th Cir. 2004); in others a one-
day evaluation was completely inconsistent with
the diagnosis of the physician who had been treating
No. 10-1136 25

the claimant over a long term.3 See, e.g., Edgerton v. CNA
Ins. Co., 215 F. Supp. 2d 541, 550-51 (E.D. Pa. 2002).
Dr. Marantz concedes that this Circuit finds utility in
functional capacity evaluations when the testing factors
reports of pain into the functional assessment, as the
evaluator did in this case. See Leger v. Tribune Co. Long
Term Disability Ben. Plan, 557 F.3d 823, 835 (7th Cir. 2009).
This court evaluates the helpfulness of functional
capacity evaluations based on the individual circum-
stances of the assessment—for example, whether the
results are consistent or conflicting with other medical
examinations; whether the evaluation took into account
reports of pain during and after testing; and whether
the test assessed ability over time rather than at one
particular moment. See id.; see also Holmstrom v. Metro. Life
Ins. Co., 615 F.3d 758, 770-71 (7th Cir. 2010) (a functional
capacity evaluation that included twenty different
detailed tests, and repeated testing again on a second day
constituted a thorough functional capacity evaluation
that should not have been ignored by the insurer).
In this case, the occupational therapist evaluated
Dr. Marantz for approximately three-and-a-half hours
on the first day and two-and-a-half hours on the second

3
Another case cited by Dr. Marantz was vacated in 2003.
Ballinger v. Eaton Corp., 212 F. Supp. 2d 1086 (S.D. Iowa Aug. 5,
2002), vacated, No. 1-00-CV-90075, 2003 WL 22339247 (S.D.
Iowa May 6, 2003). It thus has no precedential force. Van Straaten
v. Shell Oil Prods. Co., No. 11-8031, 2012 WL 1340111, *4 (7th Cir.
2012)
26 No. 10-1136

day. The therapist evaluated Dr. Marantz not only
through testing, but also by observing her positioning
and ability to sit throughout the examination and
intake interviews. At trial, the therapist thoroughly
described the various tests she performed and explained
that she took into account both Dr. Marantz’s inability
to complete certain tests and her complaints of pain. In
the end, the results of the functional capacity evaluation
indicated that Dr. Marantz had the ability to sit for
more than 5.5 hours per day, and to stand and walk
between 2.5 to 5.5 hours per day and thus could perform
sedentary work, or even light duty work in a full-time
capacity. Dr. Manolakas reviewed the functional ca-
pacity evaluation and determined that the occupa-
tional therapist’s findings were consistent with the
medical data in Dr. Marantz’s claim file.
Dr. Marantz did not offer a rebuttal functional
capacity evaluation, but rather offered the testimony of
a certified rehabilitation counselor, John Sargent, who
testified that the occupational therapist’s findings in
the evaluation were unreasonable. Sargent testified that
the results of the testing indicated that Dr. Marantz is
not capable of performing full-time, sedentary work.
Dr. Marantz’s own treating physician testified, how-
ever, that in her opinion, only occupational therapists,
physical therapists, and medical doctors are qualified
to administer or comment on functional capacity evalua-
tions. Mr. Sargent is not an occupational therapist and
has never personally administered such an evaluation.
The district court did not err by failing to accord much
weight to his testimony.
No. 10-1136 27

Dr. Marantz criticizes functional capacity evaluations
as being unreliable and unable to determine an individ-
ual’s capacity to work an eight-hour day on a regular
and continuous basis and cites, for support, an article
in the journal “Physical Therapy.” The article, however,
notes that such evaluations can indeed be used to
project abilities over a forty-hour work week when mea-
surements such as heart rate and blood pressure are
monitored during testing and analyzed as part of the
assessment. Phyllis M King, A Critical Review of
Functional Capacity Evaluations, 78 Physical Therapy 852,
862, 863 (1998). And, in fact, the occupational therapist
conducting Dr. Marantz’s evaluation testified that she
monitored Dr. Marantz’s heart rate and blood pressure
throughout the testing. (R. 124 at 287).
Finally, Dr. Marantz criticizes the conclusions that the
occupational therapist drew from the objective test
results. For example, Dr. Marantz states that her lumbar
flexation and left lateral extension were reported at 48-
52% and 61-63% of normal on both days, respectively,
but fails to tell us why these particular numbers con-
tradict the conclusion that she can engage in sedentary
or light work. The district court did not clearly err by
taking into account the results of the functional capacity
evaluation in assessing whether Dr. Marantz was en-
titled to benefits.
When a functional capacity evaluation conflicts with
the treating physician’s conclusion, the court must decide
which evidence to credit. It is not clear in this case, how-
ever, that there was any meaningful conflict between
28 No. 10-1136

the results of the functional capacity evaluation and the
treating physicians’ conclusions. Dr. Anderson, for ex-
ample, treated Dr. Marantz from September 2004 to
May 2005. She completed the disability forms, but indi-
cated that although Dr. Marantz could not work as a
pulmonologist, she could perform other work. At trial
she backed further away from this determination,
saying that she “wasn’t really the person that made her
disability; go back and review to the people [sic] who
actually did create her disability.” (R. 167, Ex. 17 at 37).
Furthermore, Dr. Anderson stated that she had made
her disability determination based on other people’s
evaluations and Dr. Marantz’s self-complaints, although
in her testimony she does note that, upon physical exami-
nation, she noticed signs that Dr. Marantz was favoring
her back in a way that indicated pain.4 Moreover, in
her addendum to Dr. Manolakas’ April 21, 2005 letter,
Dr. Anderson recognized that Dr. Marantz could work
from four to six hours a day, or up to thirty hours per
week—not a far stretch from full-time work.

4
Dr. Marantz’s brief cites Pl.’s Ex. 17 at pp. 11, 50 for this last
observation. Neither page contains any testimony about
observations of back pain. This court, through its diligence,
was able to find a statement about pain observation at page 49
of this exhibit. Plaintiff repeats the error again at page 23 of
her brief and page 15 of the reply brief. The myriad citations
errors by both parties have bogged down this court and
wasted time and resources. See also footnote 5, infra. Harvey
v. Town of Merrillville, 649 F.3d 526, 529 (7th Cir. 2011) (cita-
tions that do not actually support the propositions they
purport to render our jobs more difficult than they ought to be.)
No. 10-1136 29

But even if Dr. Anderson’s findings contradicted
the evidence in the record, the district court certainly did
not err by weighing the evidence and concluding
that Dr. Marantz was capable of working full time. For
example, in response to a letter from Dr. Manolakas,
Dr. Anderson wrote that Dr. Marantz could not bend at
the waist for more than a few minutes. The surveillance
video, however, shows Dr. Marantz bending into her
shopping carts and her car on many occasions within
the course of one day and across many days, and
without hesitation or visible signs of discomfort. The
district court was well within its discretion to accord
less weight to Dr. Anderson’s opinion in light of the
video evidence.
The district court judge also considered the testimony
of Dr. Keeshin, who began treating Dr. Marantz in
May 2005, after the functional capacity evaluation and
shortly after LINA notified Dr. Marantz that it was termi-
nating her benefits. Dr. Keeshin’s May 23, 2005 report
noted that Dr. Marantz was unable to sit or stand for
any significant amount of time and was unable to
return to work as a pulmonologist. On June 7, 2005,
Dr. Keeshin completed a Lumbar Spine Residual Func-
tional Capacity Questionnaire in which she reported
that Dr. Marantz was limited to walking one city block
without pain and could not sit or stand for more than
twenty minutes. Dr. Keeshin also found that Dr. Marantz
could occasionally lift and carry less than ten pounds,
rarely lift and carry ten pounds, and never lift and
carry twenty pounds. She estimated that Dr. Marantz
30 No. 10-1136

would likely be absent from work more than four days
per month. Finally, on June 20, 2005, Dr. Keeshin
prepared an Attending Physician Supplementary State-
ment for another insurer, RBC Insurance, in which she
stated that Dr. Marantz was unable to work more
than twenty-five hours a week, and only in a sedentary
position.
In her testimony during the bench trial, Dr. Keeshin
explained that the purpose of her visits with Dr. Marantz
was to assist the latter with pain management and func-
tionality and to improve Dr. Marantz’s quality of
life, not to assess her ability to perform in a full-time oc-
cupation. Consequently, many of her conclusions,
although supported by an MRI and EMG, were based
on Dr. Marantz’s own descriptions of her capabilities
and pain levels.5 She did not perform particular tests to
determine whether Dr. Marantz’s assessments were
accurate. In fact, she testified that the functional limita-
tions she noted in the Lumbar Spine Residual Func-
tional Capacity Questionnaire were based on what

5
Dr. Marantz argues that Dr. Keeshin considered objective
evidence in making her assessments, with citations to the
Record at 135, pp. 156, 184, 191. See Marantz Brief at 14. Yet
again, no such reference exists at these cites. Once more,
through a time-consuming search, the court was able to find
some of the references in the record at 134. These references,
however, only confirm that the bulk of Dr. Keeshin’s assess-
ment was based on Dr. Marantz’s own description of her
abilities and symptoms. This error is repeated in the reply
brief at page 9.
No. 10-1136 31

Dr. Marantz reported during the interview. As a result,
she never performed any tests that would have assessed
whether Dr. Marantz could return to a full-time job
with fewer physical demands than that of a
pulmonologist. She had no opinion as to whether
Dr. Marantz could work for longer hours in a sedentary
position. And although she estimated that Dr. Marantz
would miss four days of work per month as a
pulmonologist, she admitted that she did not address
whether she would have as many absences if
working in a sedentary position. Dr. Keeshin considered
Dr. Marantz’s MRI and EMG results which identified
nerve impairment, worsening disc herniation, and scar
tissue from her surgeries. At the same time, however,
Dr. Keeshin emphasized that MRI’s do not necessarily
reflect a person’s functional restrictions or limitations.
Some of the limitations that Dr. Keeshin noted con-
flicted with other evidence in the record, including from
Dr. Marantz herself. For example, Dr. Keeshin wrote
that Dr. Marantz could not walk more than a block, yet
Dr. Marantz told the functional capacity evaluator
that after work she walked a half mile from the train to
her house. And in a disability questionnaire that
Dr. Marantz completed in August 2004, she wrote that
she was walking half a mile four times per week.
Dr. Marantz claimed that the discrepancy was due to
a deteriorating condition, yet Dr. Anderson testified
that Dr. Marantz’s condition did not change during this
period.
Dr. Keeshin also wrote that Dr. Marantz had pain
when bending forward or with any static forward flexed
32 No. 10-1136

position, and that she could never lift and carry twenty
pounds. The surveillance video, however, reveals many
instances of Dr. Marantz bending into her car and shop-
ping carts without hesitation, and shows her easily
lifting a twenty-pound case of canned dog food and a
seventeen-pound bag of dry dog food out of her
shopping cart and into the back of her car. In addition,
Dr. Keeshin reported that Dr. Marantz could sit no
more than twenty minutes at a time, but Dr. Marantz
reported to Ms. Burns that she could sit up to sixty
minutes at a time. The district court carefully con-
sidered the conflicting evidence and again was within
its discretion to find that many of Dr. Keeshin’s conclu-
sion were undermined by the information upon which
she relied or by other evidence in the record.
Dr. Marantz faults LINA for failing to have a medical
professional review the EMG testing and MRI performed
in May 2005. Drs. Keeshin and Anderson, however, both
testified that Dr. Marantz’s functionality and medical
conditions did not change in 2005. Thus her medical
condition and functionality were the same at the time
of the functional capacity evaluation as they were when
the MRI and EMG were conducted. Furthermore, as
Dr. Keeshin testified, MRI’s do not necessarily reflect
a person’s functional restrictions or limitations.
Marantz also criticizes the review by LINA’s medical
director, Dr. Robert Manolakas. Dr. Manolakas did not
examine Dr. Marantz, but did review her medical
file, a procedure accepted by this court. Davis v. Unum
Life Ins. Co. of Am., 444 F.3d 569, 577 (7th Cir. 2006). Dr.
No. 10-1136 33

Marantz argues that Dr. Manolakas based his opinion on
the mistaken impression that the record contained no
examinations showing significantly decreased range of
motion in the lumbar spine, when the functional
capacity evaluation showed just that. She also objected
to Dr. Manolakas’ statement that she was using only
weak analgesics when there was testimony that she
was taking the narcotic-based medications Ultram and
Vicodin twice a day. Finally, Dr. Marantz argues that
Dr. Manolakas’ report incorrectly concluded that she
was not under a doctor’s care for back pain when she was
seeing her internist, Dr. Anderson for her back pain. We
need not address the details of each of these criticisms
other than to note that Dr. Manolakas reviewed the
medical evidence, interviewed Dr. Anderson, and was
thus able to render adequately an expert opinion with-
out a direct examination. To the extent there were any
mistatements or misconceptions in Dr. Manolakas’ report,
they were not sufficient to render the district court’s
reliance on his opinion clear error. The district court
concluded that Dr. Manolakas reviewed the functional
capacity evaluation and determined that the findings
were consistent with medical data in Dr. Marantz’s file.
In a brief aside, the district court noted that “in addi-
tion to all the evidence in the record,” the court observed
Dr. Marantz during the trial and noted “that she was
able to sit for extended periods of time without signs
of discomfort and both lifted and maneuvered heavy
exhibit binders without hesitation or apparent discom-
fort.” (R. 143 at 26). The court noted that it was
34 No. 10-1136

concerned only with her abilities at the time LINA termi-
nated her benefits, but considered it as one factor given
Dr. Marantz’s testimony that her condition had not im-
proved since that time. Dr. Marantz objected to what it
called the district court’s “sit and squirm test,” but as
the district court judge indicated, this was but a small
factor in his consideration of all of the evidence. More-
over, this court has always held that a fact finder can
use observation to assist in making credibility determina-
tions. Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000)
(upholding hearing officer’s credibility determination
where hearing officer considered claimant’s statement
that she could not sit for more than ten minutes
without severe pain to be inconsistent with his
observation of her during the hearing, at which she sat
for far longer than ten minutes without apparent signs
of discomfort).
Having concluded that Dr. Marantz could perform full-
time sedentary work, the district court looked to see
whether Dr. Marantz was unable to earn eighty percent
of her indexed covered earnings as required for coverage
under the policy.
In November 2005, while her appeal with LINA was
pending, Dr. Marantz began working approximately
twenty hours per week as the director of the Suburban
Cook County Tuberculosis Sanitarium, a job which in-
cluded some clinical responsibilities, including exam-
ining patients. Some of Marantz’s time was spent
“on call,” consulting with nurses about patient care by
telephone.
No. 10-1136 35

After receiving Dr. Marantz’s appeal, LINA retained a
rehabilitation counselor, Sue Howard, to perform a
labor market survey to determine whether Dr. Marantz
could meet her wage replacement requirement in a seden-
tary position—that is, whether she was capable of
earning more than 80% of her indexed covered earnings,
$11,442.81 per month or $137,313.72 per year. Ms. Howard
designed the questions that her employee, Larry Howard,
asked potential employers. Dr. Marantz argues that
Ms. Howard was not sufficiently versed in Dr. Marantz’s
qualifications and that she did not know whether
Dr. Marantz had the necessary qualifications for the
identified jobs. Although it is true that Ms. Howard did
not review Dr. Marantz’s curriculum vitae until later, she
testified that the skills listed on Dr. Marantz’s CV were
those she assumed when conducting the survey. Specifi-
cally, Mr. Howard told employers that Dr. Marantz
had experience as the chief of pulmonary critical care,
that she had been chief of utilization, and director of
respiratory medicine, and that she was a medical con-
sultant and public health physician, an instructor in
clinical medicine, and an attending physician with a
recently obtained master’s degree in public health. (R. 122,
at 366). Mr. Howard asked each employer about the
physical demands of the job, the salary, and whether
Dr. Marantz would be qualified for the position. Id.
Based on the information Ms. Howard received, she
concluded that Dr. Marantz was qualified for several
positions including: (1) medical director of a mobile X-ray
company with a salary of $175,000 per year; (2) full-
time medical director at the Illinois Department of Public
36 No. 10-1136

Health, with a salary of $130,000 or more; or (3) medical
director at Advocate Healthcare, with a salary of $130,000-
$170,000 per year. Ms. Howard believed that Dr. Marantz
would receive a salary at the upper end of some of
these ranges because she had extensive administrative
experience and currently commanded a salary toward
the upper end of those ranges.
Dr. Marantz countered Ms. Howard’s conclusions
about job availability by again presenting the testimony
of her vocational specialist, John Sargent. Mr. Sargent
testified that Dr. Marantz could not earn eighty percent
of her indexed covered earnings on either a full-time or
part-time basis. The district court rejected his conclusion
in favor of Ms. Howard’s, as Mr. Sargent had not
contacted any of the employers in Ms. Howard’s reports
to dispute her findings. We will not disturb the dis-
trict court’s factual findings after it has weighed the
evidence on both sides unless, after considering all of
the evidence, this court is left with the definite and firm
conviction that a mistake has been made. See United
States v. Rice, 673 F.3d 537 (7th Cir. 2012). We are not.
There is also much debate about what Dr. Marantz
could earn if her part-time position was converted to a full-
time position. In fact, Dr. Marantz acknowledged that
the full-time salary for her current position in October
2008 was $174,000 per year. (R. 123, Tr. 75:21-76:6). Despite
this admission, Dr. Marantz argues in her brief that
the district court erred in calculating her hypothetical full-
time salary at the Illinois Department of Public Health
in 2005 to be $138,320. The district court arrived at this
No. 10-1136 37

number by doubling Dr. Marantz’s then current half-time
salary of $69,160. Marantz, however, argues that her bi-
weekly salary of $2,660 actually reflects a twenty-one
hour work week, and thus when one calculates her
salary at this rate, her full-time salary would be only
$131,733.33 thus missing the 80% requirement by about
$5,580. Dr. Marantz submitted the testimony of John
Sargent, a certified rehabilitation counselor who cal-
culated her salary in this manner.
To summarize, Dr. Marantz is only entitled to pay-
ments if she cannot earn at least 80% of her indexed
covered earnings or $137,313. Whether Dr. Marantz
would be slightly above or below this number in a full-
time position with her current employer depends on
whether her current salary reflects twenty or twenty-one
hours of work per week. After considering all of the
evidence before it, the district court concluded that
Dr. Marantz’s full-time annual wage at the Illinois De-
partment of Public Health would be approximately
$138,000. We see no reason to upset this finding on appeal.
Dr. Marantz also argues that Cook County allows
her to alter her schedule and work location to accom-
modate her symptoms, allowing her to continue her
work in her part-time position, although there was no
discussion below as to whether such accommodations
would be available were she to work in her same position
but on a full-time basis. The district court noted that
Dr. Marantz bore the burden of proving that she was not
capable of making an adjustment to her daily routine.
(R. 143 at 29).
38 No. 10-1136

In sum, the district court concluded that Dr. Marantz
had not satisfied her burden of proving that in April 2005
she was entitled to long term benefits under the terms
of LINA’s policy — a decision which, on appeal, we affirm.

7-10-12