United States District Court, N.D. Illinois
March 1, 2004.
SANDRA A. HILLOCK, Plaintiff,
CONTINENTAL CASUALTY COMPANY, a CNA Company Defendant
The opinion of the court was delivered by: JOHN NORDBERG, Senior District Judge
MEMORANDUM OPINION AND ORDER
This is an ERISA case challenging an administrator's decision to deny
long-term disability benefits. Before the court are cross-motions for
summary judgment. For the reasons set forth below, we grant summary
judgment in favor of plaintiff Sandra A. Hillock and against defendant
Continental Casualty Company, a CNA Company ("CNA").
In 1997, Sandra Hillock began working for CF Industries, Inc. ("CF
Industries"). As an employee, she was a participant in her employer's
disability income insurance policy underwritten by CNA (Policy No.
In May of 1999, Hillock was in a car accident and injured her back. An
MRI taken after the accident revealed a herniated disk at C3-4, canal and
foraminal narrowing at C4-5, C5-6, and C6-7 and disc protrusions at the T
1-2 level. (R 154.)*fn3 Hillock had surgery to correct these problems.
But the surgery did not eliminate her symptoms as she continued to
experience numbness in her hands, pain her neck, bodily pain, sleep
disruptions, and other problems.
On February 3, 2000, Hillock underwent a second surgery to alleviate
the ongoing pain. Dr. Russell Nockles performed anterior C5-6 and C6-7
microdiskectomy and fusion surgery. In a follow-up visit to Dr. Nockles'
office four months later, Hillock indicated that she still experienced
fatigue, soreness, and low back pain that was not relieved by Tylenol. (R
106.) On December 27, 2000, another MRI was taken, which indicated that
Hillock still suffered from damage to her spine.*fn4
Based on these problems and the continuing pain, Hillock's primary care
physician, Dr. Erin Davis, advised her to quit working. Following this
advice, she stopped working on February 27, 2001. At the time, she was 56
years old and was making approximately $3,071.20 a month.
Hillock then applied for disability benefits. Under the policy, there
was a 180-day waiting period between the date of onset of the disability
and the date benefits start. In this case, this period ran from February
27, 2001 through August 28, 2001. To qualify as disabled under this
policy, Hillock is required to provide "objective medical findings"
demonstrating that she is "continuously disabled" during this elimination
period, which meant that she could not perform the "material and
substantial duties" of her job.*fn5 If she is considered disabled, she
will receive 60% of her monthly wages subject to coordination with her
social security benefits. Such benefits would be paid until she either no
longer satisfied the definition of "disability," died, or reached the age
Hillock's employer submitted her claim for long-term disability
benefits to CNA on August 16, 2001. In support of her application,
Hillock, her employer, and her primary care physician filled out forms
required by CNA and submitted medical records. Hillock filled out a CNA
form entitled LTD Employee's Statement and one entitled Employee's Job
Activities Statement. (R 150, 158-59.) On the Employee's Statement, she
indicated that she was injured in a car accident, suffered from spinal
damage, and listed 5 physicians she had consulted about her condition:
(1) Dr. Davis, (2) Dr. Nockles, (3) Dr. Cross, (4) Dr. Young, and (5) Dr.
Sliwa. (R. 150.) On the Job Activities Statement, she stated: "severe
headaches, neck & arm pain, [and] numbness occur throughout the work
day, no matter what task is performed." (R 159.) She also estimated that
a typical work day involved 7 hours sitting, 15 minutes standing, 30
minutes walking, and 30 minutes bending. (R 158.)
On the Employer's Job Activities Statement, which is similar to the
employee's form, CF Industries stated that Hillock worked as an
administrative assistant to the vice president of marketing and sales and
that her job activities were as follows: "coordinates schedules, travel,
handles phone, correspondence, files, office mgt." (R 156.) CF Industries
also answered the question about Hillock's typical work day, stating that
she spent 5 hours sitting, 2 hours standing, and 1 hour walking and that
she spent 50% of her time working with other people. (Id.)
Dr. Davis completed the Physician's Statement, which is another form
required by CNA. (R 151-52.) Dr. Davis listed under the diagnosis section
that Hillock had chronic neck pain, myofascial pain, degenerative disc
disease, and cervical fusion surgery. As for complications, Dr. Davis
stated that Hillock suffered from chronic pain, poor posture, and poor
mobility. (R 151.) In response to the physical limitations question, Dr.
Davis indicated that Hillock was unable to lift any weight, cannot stand
or sit for long periods of time, and that her concentration was affected
secondary to pain. (R 152.) As for Hillock's prognosis, Dr. Davis stated
that "prognosis is poor," that "[n]o further surgery will help," and that
Hillock will "have significant pain for the rest of her life."
(Id.) In addition to completing the Physician Statement, Dr.
Davis also attached two MRI reports to substantiate these findings. (R
The initial review of the application was made by Lydia Myers, whose
job title is "disability specialist." In addition to reviewing the
materials cited above, Myers conducted a telephone interview with Hillock
on September 7, 2001. In this interview, according to Myers' notes,
Hillock stated that she has pain in her neck, shoulders, arms, and hands,
has "almost constant" headaches, and has difficulty lifting her right
arm. (R 139-41.) Hillock also stated that she was going to physical
therapy since her accident in an effort to lessen her pain and that she
takes pain medication to be able to sleep at night. Myers also
asked Hillock about her typical daily activities. Hillock stated that she
did some gardening, grocery shopping, and a few other activities around
the house like checking her email.
Five days later, in a September 12, 2001 letter, Myers informed Hillock
that CNA had denied her claim for long-term disability benefits. This
letter serves as the most comprehensive explanation for CNA's decision.
We quote the substantive portion of this letter in full:
Dr. Erin Davis states in the Physician's Statement
that your complications/ symptoms are, "chronic
pain, poor posture, poor mobility." Physical
limitations noted by Dr. Davis include, "Patient
unable to lift any weight. Cannot stand or sit for
long periods of time. Concentration affected
secondary to pain."
According to the Employer and Employee Job
Activities Statements, as an Administrative
Assistant, you have the option of sitting or
standing throughout the work day. No lifting or
carrying is required. A headset is provided for
According to the Employee Interview conducted with
you on 09/07/01, you stated that your Activities
of Daily Living consist of gardening, pulling
weeds, watering the grass, cooking, grocery
shopping, and light housework. You are able to
care for your personal needs without difficulty.
You are also able to take short walks, check email
on your home compute[r], and sit up to 20 minutes
at an interval.
At this time, although we acknowledge that you
have a condition, the information provided does
not support that you are unable to perform the
material and substantial duties of your occupation
as an Administrative Assistant. The sit or stand
option of your job would allow you to alternate
positions as necessary. No lifting or carrying of
any weight is required.
Hillock subsequently asked CNA to reconsider the decision and submitted
a letter objecting to, among other things, CNA's description of her
typical daily activities. She also submitted additional medical evidence
consisting of a report from Dr. Sliwa, an exercise physiologist, who
examined her on one occasion in June 2001.
In a letter dated October 12, 2001, CNA denied Hillock's request for
reconsideration, stating that it did not find any reason to alter its
earlier analysis. As for the new report by Dr. Sliwa, CNA concluded that
it indicated that Hillock had an "essentially normal physical
examination." (R 124.)*fn6
The claim was then forwarded to the Appeals Committee at CNA. Hillock
again submitted additional information, which consisted of a letter from
Dr. Whorton who worked as a medical consultant for CF Industries. (R
78-80.) In his November 13th letter, Dr. Whorton summarized Hillock's
medical problems, her recurring pain, and her symptoms and concluded that
she was incapable of performing her job due to "chronic pain." (R 80.)
In a letter dated November 30, 2001, the Appeals Committee denied
Hillock's appeal. (R 67-69.) The Committee offered no new rationale for
denying the claim and essentially relied on the reasoning in the
September 12th letter. (R 67: "Based on our review of the available
information we have no choice but to re-affirm the prior decision to deny
benefits under the above captioned policy.") Having exhausted her
administrative avenues of appeal under the plan, Hillock filed this
I. Standard Of Review.
A. Which Standard Applies.
The first task is to determine the appropriate standard of review.
Hillock argues that review should be de novo while CNA argues
that it should be under the arbitrary and capricious standard. This
question hinges on whether the plan contained language specifically
adopting the arbitrary and capricious standard; if not, the default
standard is de novo, Firestone Tire and Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989). The only issue here is whether we should look only
at the plan in effect at the time Hillock became disabled (Feb. 28, 2001)
or whether we should look at plan as it was later amended (May 1, 2001)
after she became disabled but before she applied for benefits (Aug. 16,
2001). The parties agree on the consequences of this choice. If we are
restricted to looking at only the plan without the later amendment, then
review is de novo. If we look at the amended plan, then review
is under the arbitrary and capricious standard.
Initially, this question was more complex. In their opening and
response briefs, the parties cited to various cases, none of which
clearly answered this question. However, before the parties filed their
reply briefs, the Seventh Circuit provided a definitive answer. In
Hackett v. Xerox Corp. Long-Term Disability Income Plan,
315 F.3d 771 (7th Cir. 2003), the Seventh Circuit held that "the controlling
plan will be the plan that is in effect at the time a claim for benefits
accrues." Id. at 774. Relying on Hackett, CNA asserts
that the plan was amended before plaintiffs claim accrued. In her reply
brief, Hillock does not disagree with this assertion. Accordingly, this
case will be reviewed under the arbitrary and capricious standard.
B. The Arbitrary and Capricious Standard.
Under the arbitrary and capricious standard, a decision will be upheld
unless it is "completely unreasonable." Mers v. Marriott Int'l Group
Accidental Death & Dismemberment Plan, 144 F.3d 1014, 1021 (7th
Cir. 1998). Although this review is deferential, it should not be a
"rubber stamp" and "deference need not be abject." Hackett, 315
F.3d at 774. The decision will not be upheld, for example, "when there is
an absence of reasoning in the record to support it," id. at
774-75, or when the "record contains nothing more than scraps to offset
the evidence presented by [the claimant]," Hawkins v. First Union
Corp. Long-Term Disability Plan, 326 F.3d 914, 919 (7th Cir. 2003).
II. Applying This Standard Here.
In denying Hillock's claim, CNA relied on two primary rationales that
were set forth primarily in the September 12th letter. First, it
concluded that her job allowed her to sit or stand as needed and that
this flexibility made it possible for her to perform her job despite her
medical problems. Second, it concluded that Hillock's ability to do some
activities in her personal life, such as light gardening and
housecleaning, further demonstrated that she could perform the material
duties of her job.
A. The Medical Evidence.
Before examining these rationales in more detail, it is important to
note the various things CNA did not do. First, it never discussed the
objective medical evidence submitted in support of plaintiff's claim.
Second, with the possible exception of Dr. Sliwa's report, it never
discussed the findings and opinions of five doctors who concluded that
she was suffered from serious medical conditions. Two of these doctors
Drs. Davis and Whorton specifically concluded
that she was disabled. Third, CNA did not hire a doctor to examine
Hillock or even review her medical records. Instead, it relied
principally on the analysis of an in-house administrative employee who
insofar as the record reveals does not have any specialized medical
CNA thus did not directly challenge any of the medical evidence and
proceeded under the assumption that Hillock did suffer from the medical
conditions diagnosed by her doctors. These included spinal degeneration
and damage, carpal tunnel syndrome, and postural abnormalities. In the
original denial letter, for example, CNA addressed the medical evidence
by merely stating in conclusory fashion that it acknowledged that Hillock
had "a condition." (R. 133). CNA likewise proceeded under the assumption
that Hillock did suffer from the various symptoms she and her doctors
identified. (R 68: "We  do not doubt your pain complaints.") These
included chronic neck pain, myofascial pain, headaches, poor posture,
poor mobility, numbness in the arms, inability to lift any weight,
inability to sit or stand for long periods of time, and reduced
concentration due to pain. See, e.g., R 67-68. CNA also never
disputed Hillock's claim that the pain she experienced was severe and
constant. Id. at 68.
CNA's decision to completely ignore the objective medical evidence
(which its own policy mandates must be submitted) and to ignore the
opinion of Hillock's doctors as well as CNA's decision not to hire a
doctor of its own to review this evidence raise strong doubts about the
decision. See, e.g., La Barge v. Life Ins. Co. of N. Am., 2001
WL 109527, *9 (N.D. Ill. Feb. 6, 2001) (administrator's decision lacked a
"proper medical foundation" because it made no independent inquiry into
claimant's condition, did not meet with claimant, and did not hire a
physician to examine claimant). As CNA correctly points out in its brief,
this is not a dispute between conflicting medical opinions. But even
ignoring these problems, CNA's decision is still
unsupportable because it is based on unproven and unrealistic
assumptions about the nature of Hillock's abilities and job duties.
B. CNA's First Rationale.
The first rationale is that Hillock's job was flexible enough to
accommodate her medical problems. This rationale rests on the assumption
that Hillock had "the option of sitting or standing throughout the work
day." (R 132.) According to the September 12th letter, this conclusion is
derived from the two-page job activities form filled out by her employer.
CF Industries indicated that she typically sat for 5 hours, stood for 2
hours, and walked for 1 hour. Based on this estimate, CNA concluded that
Hillock could choose to sit or stand as needed during her work day and
that she could arrange her work activities accordingly. However, the mere
fact that she spent some portion of her day sitting and some portion
standing does not automatically mean that she had the power to choose
when she did these things.
This assumption is questionable based on what we know about the nature
of her job, as revealed in the very same job activities statement relied
upon by CNA. Hillock worked as an administrative assistant for the
vice-president of marketing and sales. (R 156.) She coordinated schedules
and travel, answered the phone, handled the files, managed the office,
and did other related jobs. (Id.) Many of these tasks are
time-dependent and cannot be put off to a time when a person is feeling
better. Moreover, approximately half of her work day was spent working
with other people, which would make it even more unlikely that she could
work on her own time table. CNA's rationale is based on the assumption
that the vice-president for whom Hillock worked would tailor any requests
around Hillock's recurring need to change position every 10 or 20
minutes, In sum, while it is perhaps reasonable to assume that
some of her job duties could be
done on an "as needed" basis, it is not reasonable to suppose
(without any other evidence to back up the assertion) that all
her job requests were of this type.
Even if Hillock had the option to sit or stand, it is not clear that
this would have alleviated all her problems. CNA concluded, in effect,
that Hillock's symptoms were intermittent and only occurred when
she stood or sat for too long. But this point is not supported by any
clear evidence. In fact, the evidence in the record strongly and
consistently demonstrates that plaintiff'suffered from constant pain
a fact CNA never questioned in any of its three letter decisions.
For example, Hillock stated in the phone interview with Myers that she
suffered from "almost constant" headaches. (R 139.) Every doctor Hillock
consulted (including Dr. Sliwa) noted that she complained of constant and
severe pain, which is also evidenced by the fact that she took two
different painkillers on a regular basis. That she was in pain while at
home, when she certainly could sit or stand as needed, also casts doubt
on CNA's assumption that her pain only arose when she was confined to a
single position for long periods of time. We recognize that both Hillock
and her doctors indicated that she needed to change positions throughout
the day. But this does not mean that changing positions eliminated all
her pain rather than simply alleviated some of it. Finally, to the extent
there is any doubt on this point, Hillock explicitly stated on the job
activities form that her pain occurred "throughout the work day, no
matter what task is performed." (R 159; emphasis added.) CNA cited
to this statement in its November 30th letter, but never expressed any
doubt about it. (R 67.)
C. CNA's Second Rationale.
CNA's second main rationale fares no better. CNA concluded that
Hillock's ability to do some chores and activities while at home meant
that she was fully capable of working an 8-hour job 5 days a week despite
her medical conditions and pain.
As an initial matter, CNA overstated the amount and degree of her
home-based activities. In the September 12th letter, CNA described
Hillock's daily activities in a laundry list that makes it appear that
she did all these activities easily and all in one day. Myers' own notes
from this telephone conversation, however, indicate that Hillock's
abilities were not as broad or frequent as portrayed in the letter.
Although Hillock stated that she does gardening on occasion, she does so
only from a sitting position. (R 140.) Although she does some grocery
shopping, her husband goes with her and carries all the groceries.
(Id.) Although she could get dressed, she still had difficulty
pulling a shirt over her head and had to have a seat in the shower to
assist her. (Id.)
The September 12th letter's description of her daily activities is also
misleading to the extent that it suggests that the activities are all
done on a single day. As Hillock made clear CNA in a letter sent after
the initial decision, she could never do all these activities in one day
but could only do one a day and then not more than two a week:
Yes, there may be a day when I can sit on a stool
in the garden and weed for 20/30 minutes; however,
that is the extent of my physical activity for
that day. I may be able to assist with dinner that
evening, but more times than not, my husband and I
revert to easily prepared meals.  Your letter
lists activity-after-activity, but I cannot
perform more than one of those listed in your
letter on any given day, and not more than two in
any given week since the fall of 2000. There may
be an afternoon when I can perform light
housework, but no other activities occur the next
day or perhaps several days thereafter.
(R. 126.) CNA never addressed this point in its subsequent letters,
but Hillock's need to rest after doing these activities supports her
claim that she is disabled and is inconsistent with CNA's portrayal of
her as essentially normal.
In addition to aggressively characterizing the extent and frequency of
her activities, CNA also assumed that the ability to do some activities
at home by itself shows that a claimant can perform the material duties
of her job. This assumption is not supported by the case law or common
sense. See, e.g., Pelchat v. UNUM Life Ins. Co., 2003 WL
21105075, *10 (N.D. Ohio May 12, 2003) ("whether plaintiff can complete
light household chores is not determinative of whether she can perform
her duties as a scheduler"). In Hawkins v. First Union Corp.
Long-Term Disability Plan, 326 F.3d 914 (7th Cir. 2003), the Seventh
Circuit specifically rejected this type of reasoning on both logical and
philosophical grounds. First, as a matter of common experience, the
Seventh Circuit concluded that the claimant's ability to do some
activities at home did not establish that he could do a full-time job.
The Court noted, for example, that "when one is working at home it is
easier to interrupt one's work every few minutes if need be than to do so
at the office." Id. at 918. Second, as a matter of fairness, the
Seventh Circuit stated that a disabled person should not have to face the
"unfortunate choice in life  between succumbing to his pain and fatigue
and becoming inert, on the one hand, and on the other hand pushing
himself to engage in a certain amount of painful and fatiguing activity."
Id. For these reasons, the Seventh Circuit concluded that
engaging in a certain amount of activity at home simply "does not prove"
that a person is not disabled. Id.*fn7
Following CNA's logic, Hillock should just take the energy used to do
household chores and transfer that energy to work. While it may be
possible that she could abstain during the work week from some of the
listed activities, many of them must be done in addition to work
activities. Personal grooming and cooking, for instance, are not things
that one can reasonably choose to ignore, saving them up for the weekend.
The relevant question then is whether her physical limitations and
associated pain would have prevented her from doing both
household activities and work activities. CNA never addressed this point.
D. The Sliwa Report
Although the above two rationales constitute CNA's explanation, CNA did
later comment on the report of Dr. Sliwa, which was submitted after the
original denial of Hillock's claim on September 12th. Specifically, in
its October 12th letter, CNA explained why this report did not alter its
earlier decision. CNA therefore did not affirmatively rely on this report
as part of its rationale for rejecting this claim. However, to the extent
that CNA may now be attempting to offer Dr. Sliwa's report as a third
rationale for denying the claim, we will discuss it.
On June 18, 2001, Hillock was examined by Dr. Sliwa, who later prepared
a 4-page report summarizing his findings. (R 112-15.) In its October 12th
letter, CNA stated that the report "reveals [an] essentially normal
examination." (R 124.) However, CNA's conclusion only makes sense if one
selectively reads this report. Based on the statements CNA excerpted from
the report, it appears that CNA simply went through the report and picked
out every instance in which Dr. Sliwa noted that a particular body
function was "normal" and ignored the many other contrary statements as
well as the overall conclusions of the report.
A fair reading of the report shows that it contains a mixture of
statements, some of which indicate normal functions in places but many
other statements indicating that Dr. Sliwa concluded that Hillock
suffered from "significant" or "decreased" limitations. The following
paragraph is typical of the larger report:
In a standing position, her shoulders, scapula,
iliac crests and greater trochanters were
symmetric. However, she had a significant
disruption of normal anterior and posterior
curvature. She had a posterior pelvic tilt, a
decreased lumbar lordosis, a striking flattening
of the thoracic spine, increased cervical lordosis
with the head carried markedly interior. She could
sidebend the fingertips approximately nine cm
above the knee to the right and to the left, and
flex with fingertips midway between the knees and
(R 113.) As this passage illustrates, Dr. Sliwa observed that Hillock
had a number of limitations, some of which were significant. But more
probative than his specific observations are his overall conclusions and
recommendations. He concluded unequivocally that Hillock suffered from
myofascial pain, significant postural abnormalities, and significant
limitations in the range of motion in the thoracic and lumbar spine. (R
114.) Moreover, he recommended that Hillock participate in pain therapy
for these conditions. However, because he had not been able to review
Hillock's MRI's, he could not make a firm diagnosis as to whether she
should undergo further surgery and whether her pain therapy should be on
an outpatient basis or in the pain program, (R 115.)*fn8
In any event,
these are not recommendations you would expect from a doctor who believed
that the patient was in CNA's words "essentially normal."
E. Case Law.
To summarize, we conclude that CNA's decision to deny Hillock long-term
benefits under the policy is arbitrary and capricious because it is based
on highly questionable assumptions and because it ignores the
countervailing objective medical evidence.*fn9
This conclusion is supported by the case law. For example, in the
Hawkins case already discussed above, the Seventh Circuit held
that the administrator arbitrarily and capriciously denied benefits to a
man suffering from fibromyalgia (a condition very similar in nature to
myofascial pain)*fn10 who claimed that this condition prevented him from
working at a job "requiring] him to sit more or less all day at a
computer, reading and typing." 326 F.3d at 916. Similar to CNA here, the
administrator relied heavily on an "activities questionnaire," which
stated that the claimant "has been taking classes in an effort to become
a Web designer and that he surfs the Web for an hour or so at night and
sometimes does some housework." Id. at 918. As discussed above,
the Seventh Circuit rejected the argument that some home-based activities
disprove a disability. It also found that the medical report from a
doctor hired by the administrator (something CNA did not even attempt to
do here) was vague and failed to recognize that fibromyalgia is diagnosed
primarily through subjective complaints of pain. Id. at 918-19.
In the end, the Seventh Circuit stated that the record contains "nothing
more than scraps" to offset the medical evidence presented by claimant
and his physician. Id. at 9I9.*fn11
Similarly, in Houston v. Provident Life and Accident Ins. Co.,
2002 WL 31779921 (N.D. Ill. Dec. 11, 2002) (J. Gottschall), the district
court found that the administrator arbitrarily and capriciously denied
benefits to a legal secretary who had cervical disc damage (as confirmed
by MRI's) and unrelieved pain. Id. at *1-2. The court criticized
the plan administrator for "[c]hoosing to rely on the only medical
opinion that did not take into account the results of relevant, objective
medical test results" and for "rely[ing] on parts of [a medical report]
while simultaneously rejecting [its] overall conclusion." Id. at
*7. Similarly here, CNA relied on selective excerpts from Dr. Sliwa's
report while ignoring his overall conclusion that Hillock, at a minimum,
suffered from myofascial pain and postural abnormalities. Accord
Pelchat, 2003 WL 21105075 at *6, 10 (granting claimant's
cross-motion for summary judgment under arbitrary and capricious standard
because it was clear that plaintiff, who suffered from myofascial pain
and cervical disc problems, could not perform a job that required her to
sit for extended periods of time even though she was able to do "light
housework, vacuum, dust, and gardening").
For the foregoing reasons, plaintiffs cross-motion for summary judgment
is granted and defendant's cross-motion for summary judgment is denied.
The parties are directed to appear at a status hearing at 2:30 p.m. on
March 24, 2004 to determine how to resolve the remaining issues so that a
final judgment may be entered.