The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Kara Bismark-Thurbush ("Bismark-Thurbush") has sued Metropolitan Life
Insurance Company ("MetLife")*fn1 in its capacity as claims fiduciary
and insurer for the Long Term Disability Plan ("Plan") established and
run by her former employer Deloitte & Touche ("Deloitte"). Although
her lawyer has chosen to frame her Complaint in two counts, one claiming
breach of contract and the other asserting the intentional infliction of
emotional distress, both of those contentions are predicated on the claim
that MetLife failed to live up to its obligations under the Employee
Retirement Income Security Act ("ERISA," 29 U.S.C. § 1 001-1191c*fn2)
when it made the decision to deny her long term disability benefits. MetLife has moved for summary judgment pursuant to Fed.R. Civ, P. 56
("Rule 56"), and both parties have (at least nominally) complied with
this District Court's LR 56.1.*fn3 Whether because of their joint
realization that the true gravamen of Bismark-Thurbush's lawsuit is
really grounded in ERISA or for some other unknown reason, both sides'
submissions have focused exclusively on that subject and the analysis
here will properly do the same. Because Bismark-Thurbush has not raised a
genuine issue of material fact to suggest that MetLife was arbitrary or
capricious when it reviewed her claim and made the decision to deny her
benefits, MetLife's motion is granted and this action is dismissed.
Every Rule 56 movant bears the burden of establishing the absence of
any genuine issue of material fact (Celotex Corp. v. Catrett, (
477 U.S. 317, 322-23 (1986)). For that purpose courts consider the
evidentiary record in the light most favorable to nonmovants and draw all
reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002)). But
to avoid summary judgment a nonmovant "must produce more than a scintilla
of evidence to support his position" that a genuine issue of material
fact exists (Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001))
and "must set forth specific facts that demonstrate a genuine issue of
triable fact" (id.). Ultimately summary judgment is warranted only if a
reasonable jury could not return a verdict for the nonmovant (Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
What follows is a summary of the facts viewed from the perspective
dictated by the just-stated principles. But in this instance the
obligation to do so is tempered by substantial limitations created by the
extent of Bismark-Thurbush's compliance (or noncompliance) with the
strictures of LR 56.1.
Bismark-Thurbush worked for Deloitte from August 1996 to December 1999
(M. St. ¶ 4; B. Resp. ¶ 4). During that time she was a participant in
the Plan (M. St. ¶ 5). Shortly after leaving Deloitte, Bismark-Thurbush
submitted a claim for benefits under the Plan (M. St. ¶ll), stating that
she had experienced several back injuries and a neck injury. Her claim
included a statement from her treating physician Dr. Daniel Hurley in
which he diagnosed her with both myofascial pain syndrome and a
cervical/thoracic spine disorder and opined that she was probably able to work three days per week for four hours per day for the next
three to six months (M. St. ¶¶ 1 2-13; R. 175).
As part of MetLife's initial evaluation of Bismark-Thurbush's claim
for benefits, a Case Management Specialist reviewed her file and
requested the medical records from her treating physicians (M. St.
¶¶ 1 4-15). MetLife then enlisted Nurse Consultant Sheila Clerkin
("Clerkin") to review Bismark-Thurbush's record and speak with her about
her claim (M. St. ¶¶ 1 6-17).
After conducting that review, MetLife informed Bismark-Thurbush in
June 2000 that it was denying her request for benefits (M. St. ¶ 20).
That denial both recited the evidence that made up the record and
concluded that even though the medical records may have supported
Bismark-Thurbush's diagnosis, they did not prevent her from performing
sedentary work and thus did not support her "Total Disability" as defined
by the Plan (R. 81-83).
MetLife's notice of that denial also informed Bismark-Thurbush that she
could appeal the determination and submit additional records as part of
that process (id.). Bismark-Thurbush took advantage of her right to
appeal, but she did not come forth with any new documentation or other
information (M. St. ¶¶ 2 l-22).
On appeal a MetLife Procedure Analyst determined that Bismark-Thurbush's medical records should be reviewed by an independent
physician and secured the services of Dr. Mark Moyer for that purpose (M.
St. ¶¶ 2 4-25). Dr. Moyer did not examine or interview Bismark-Thurbush,
but he reviewed all the medical records in her file (M. St. ¶ 27; B.
St. ¶ 2). As a result of his review he provided MetLife with a report
outlining the reviewed information and concluding that the medical
records did not "document the presence of physical impairments . . . that
would otherwise preclude a return to a sedentary job" (M. St. ¶¶ 2 8-29;
Based on that further review, MetLife issued a reconfirmation of its
denial of benefits to Bismark-Thurbush in January 2001 (M. St. ¶ 31).
Its letter traced the review process and explicitly determined (R.
While you were diagnosed with myofascial pain syndrome
which may be chronic and require additional treatment
in the future, the current medical records did not
document the presence of physical impairments that
would preclude sedentary work. In the absence of
medical/clinical findings that document the presence
of limitations or impairments that preclude you from
performing each of the material duties of your regular
job . . . we are upholding our prior decision to deny
your claim for benefits under the Plan.
In response to that final decision by MetLife, Bismark-Thurbush brought
this action pursuant to Section 1132(a)(1)(B).
Under the Plan MetLife is vested explicitly with discretionary
authority to review claims submitted by Plan participants (M. St. ¶ 7):
Any interpretation or determination made pursuant
to such discretionary authority shall be given
full force and effect, unless it can be shown that
the determination was arbitrary and capricious.
Under that standard this Court examines MetLife's decision only to
determine whether the denial of benefits to Bismark-Thurbush was
"unreasonable, and not merely incorrect" (Herzberger v. Standard Ins.
Co., 205 F.3d 327
, 329 (7th Cir. 2000)). To that end, MetLife's
determination cannot be upset unless Bismark-Thurbush can create a
reasonable inference that it has not made an informed judgment and
articulated a sound explanation for its decision ...