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May 5, 2004.


The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


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.

Rule 56 Standard

  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; R. 66-67).

  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. 64-65):
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).

  ERISA Standard of Review

  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 ...

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