argue that there was a need to correct factual inaccuracies in plaintiff's response memorandum. A movant may cite new evidence in its reply if the non-movant has cited additional factual issues without including them in its 12(N) statement (see Baron v. W.W. Grainger, Inc., 944 F. Supp. 689, 692 (N.D.Ill. 1996) or if the non-movant has raised an entirely new issue. See Viero v. Bufano, 925 F. Supp. 1374, 1380 (N.D.Ill. 1996). Because defendants have not cited a violation by plaintiff of Rule 12(N) or any new issues that plaintiff has raised, defendants supplemental statement is not permitted under Rule 12(M) and plaintiff's motion to strike defendants' supplemental Rule 12(M) statement is granted. See Viero, 925 F. Supp. at 1379.
III. Defendants' Motion to Strike Plaintiff's Surreply
Defendants move to strike plaintiff's response to defendant's objections to plaintiff's Rule 12(N) statement of facts, claiming that plaintiff's response is a surreply that the local rules do not permit. This court agrees. Under Rule 12, the movant has one last chance to respond to what the nonmovant has added in its response. Viero, 925 F. Supp. at 1380. Plaintiff's acquisition of that last chance to respond is not permitted under this court's local rules, and thus defendants' motion to strike plaintiff's response is granted
IV. Defendants' Motion for Summary Judgment
Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Testerman v. EDS Technical Products Corp., 98 F.3d 297, 301 (7th Cir. 1996). The non-moving party is entitled to the benefit of all reasonable inferences. Id.
A. The Insurance Contract Requires the Court to Review UNUM's Decision under the Arbitrary and Capricious Standard
A court reviews a denial of benefits de novo unless the benefit plan confers power on the administrator to exercise discretion to determine eligibility for benefits, in which case the court must decide whether the denial was arbitrary and capricious. Ramsey v. Hercules, Inc., 77 F.3d 199, 202 (7th Cir. 1996). In this matter, the Disability Plan required the insured to provide "proof" of his disability. This language is quite similar to that in Patterson v. Caterpillar, Inc., 70 F.3d 503 (7th Cir. 1996), where the policy stated that "benefits will be payable only upon receipt by the ... Company of such notice and such due proof, as shall be from time to time required, of such disability." 70 F.3d at 505. Patterson held that this language was sufficient to grant the administrator discretion in determining eligibility, and thus the court reviewed the decision under the arbitrary and capricious standard. Id. Although plaintiff Infantino attempts to distinguish the Patterson case on the basis that the policy in Patterson used the word "such" before "due proof," this court finds no practical difference between the language. An administrator who requests "proof" of disability must necessarily examine the evidence submitted and determine whether it suffices as proof of the alleged disability. Bollenbacher v. Helena Chemical Co., 926 F. Supp. 781, 787 (N.D.Ind. 1996) (policy's "proof" requirement was sufficient to confer discretion on administrator). This court considers Patterson to be binding precedent and will review the denial of benefits using the arbitrary and capricious standard.
B. UNUM's Decision to Deny Coverage was not Arbitrary and Capricious
Under the arbitrary and capricious standard, this court will uphold the administrator's decision so long as that decision is based on a reasonable interpretation of the plan's language and the evidence in the case. Daill v. Sheet Metal workers' Local 73, 100 F.3d 62, 68 (7th Cir. 1996). All questions of judgment are left to the administrator, and a court must be very confident that the administrator overlooked something important or seriously erred in appreciating the significance of the evidence to overturn the administrator's determination. Patterson, 70 F.3d at 503.
The dispositive issue before the administrator here was whether plaintiff is disabled because he is unable to perform "any gainful occupation for which he is reasonably fitted by training, education, or experience." Disability Plan at 11. Although plaintiff emphasizes his doctor's report and his employment survey to show his lack of employment opportunity, both actually show the reasonableness of UNUM's decision that plaintiff can perform some gainful occupation. Plaintiff's physician, Dr. Irwin Carson, wrote to UNUM that "I am very much in favor of having Mark get back to some job where he can be gainfully employed ... it would be beneficial for Mark to return to some type of gainful employment." Carson Letter 09/20/93. Although Dr. Carson also stated that any such employment would have to be on a trial basis, Dr. Carson directly recommended that plaintiff attempt to return to work. Thus, Dr. Carson's letter does not support plaintiff's claim that he is unable to perform any gainful occupation.
Plaintiff also relies on his employment survey that claimed there were no jobs available under the seven alternative occupations which UNUM recommended. The survey did locate a position as a tune-up garage manager/supervisor, but the survey rejected the job because its starting salary was about half of plaintiff's previous pay. UNUM's policy does not give full disability benefits if the insured can perform "any gainful occupation for which he is reasonably fitted by training, education, or experience." Disability Plan at 11. Acceptance of a lower starting salary does not mean that plaintiff is not reasonably fitted to the occupation, especially in view of his lack of education. See Hammond v. Fidelity & Guaranty Life Insurance Co., 965 F.2d 428, 430 (7th Cir. 1992) (plaintiff was reasonably fitted to perform nonsupervisory work in other retail business after working as a grocery supervisor). Moreover, the Disability Plan specifically contemplates acceptance of a lower-paying job because it offers partial disability compensation in such an event. A physically disabling disease does not necessarily preclude meaningful semi-sedentary work in a different occupation. Id. Because plaintiff had the opportunity and physical ability to obtain a job paying $ 500 per week, this court concludes that UNUM's decision that plaintiff could perform work was not arbitrary and capricious, and thus the defendants' motion for summary judgment is granted
For the above stated reasons, plaintiff's motion to strike defendants' objections to plaintiff's 12(N) statement is DENIED, plaintiff's motion to strike defendants' supplemental Rule 12(M) statement is GRANTED, and the defendants' motions to strike and for summary judgment are both GRANTED. The case is dismissed in its entirety. The parties are to bear their own costs.
JAMES F. HOLDERMAN
United States District Judge
DATED: January 22, 1997