United States District Court, N.D. Illinois
May 12, 2004.
HUGO DIAZ, Plaintiff, V. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
The Parties have filed cross-motions for summary judgment pursuant to
Federal Rule of Civil Procedure 56. For the following reasons,
Defendant's Motion for Summary Judgment is GRANTED; Plaintiffs Motion for
Summary Judgment is DENIED.
Plaintiff Hugo Diaz worked as a computer programmer analyst for Bank
One in Chicago, Illinois. As a benefit of Diaz's employment with Bank
One, he was covered under a long-term disability policy ("LTD Plan")
underwritten by Defendant Prudential Insurance Company of America
("Prudential"). Generally, the LTD Plan provides disability benefits to
Bank One employees who are determined unable to perform the essential
duties of their regular occupations due to injury or illness. A. Relevant Medical Facts
In February of 2000, Diaz began experiencing pain in his lower back.
Initially, he underwent two epidural steroid injections, both of which
provided no significant improvement of his pain. As Diaz continued to
perform his duties with Bank One, he received three additional lumbar
epidural steroid injections with fluoroscopy*fn1 on November 8, 2000,
November 22, 2000, and June 13, 2001. These injections provided some
relief of Diaz's pain; however, he continued to require pain medication
after each treatment.
In January of 2002, Diaz ceased working and elected to have surgery on
his lower back. Specifically, Diaz opted to undergo a lumbar fusion
procedure which consisted of L5-S1 posterior lateral fusion with
instrumentation and iliac crest bone grafting. The surgery was
recommended by Howard An, M.D. ("Dr. An"), Diaz's treating physician,
after discovering an annular tear at L5-S1. Dr. An performed the surgery
on February 4, 2002.
Following the surgery, Diaz experienced varying levels of pain
throughout his recovery. At Diaz's February 22, 2002 post-operative
examination, Diaz reported no significant leg pain and ambulated well.
Additionally, his physical exam showed no neurologic deficit in the
bilateral lower extremities, and his x-rays showed satisfactory alignment
with all hardware appearing to be in place. Notwithstanding these
observations, Dr. An noted that Diaz continued to have significant back
pain following surgery despite the use of Durgesic patches and Norco. for
pain control. Dr. An also noted that pre-operatively, Diaz was taking 80
mg of OxyContin*fn2 three or four times a day.
On March 22, 2002, Dr. An noted that Diaz was much improved following
surgery; however, his medications now included Zanaflex, Norco, Kadian
and Neurontin. Dr. An also noted that Diaz had good strength in his
bilateral extremities and that his neurologic status remained intact.
Diaz's x-rays showed good alignment with no indication of hardware
movement. Dr. An concluded that Diaz was making satisfactory progress and
planned to re-examine Diaz in two months with the possibility of
considering his return to work.
On March 29, 2002, Diaz reported significant increased left groin pain,
increased right leg pain and sleeplessness. Diaz also reported the
sensation of hardware movement in his back. After Diaz requested a change
in pain medication, Dr. An discontinued Diaz's use of Norco. and
prescribed Lortab and Ambien for pain control. Diaz was then advised to
call Dr. An's office on April 1, 2002 to provide an update on his
On April 1, 2002, Diaz reported increased right leg numbness,
difficulty ambulating and increased anxiety. He also requested anxiety
medication, for which Dr. An prescribed Valium. Furthermore, in response
to Diaz's complaints of hardware movement, Dr. An reviewed x-rays taken
on April 5, 2002. He concluded that the fusion was consolidating and the
hardware was in place. Dr. An also expressed concern about the amount of
pain medication Diaz required and encouraged him to begin physical
therapy. On April 23, 2002, Diaz telephoned Dr. An's office to relate that he
really did not have a large component of pain at that time. Aside from
occasional achiness and soreness at the surgical site, he felt much
better and did not regret having the surgery. Diaz also related that he
continued to suffer from anxiety, depression and fear over losing his
job, indicating that he decided to see a psychologist to help with these
On April 30, 2002, Bank One requested that Dr. An complete a Health
Care Provider Medical Certification ("Certification") with respect to
Diaz's condition. The Certification requested clinical information to
support Diaz's extended time off work. Dr. An completed the Certification
on May 1, 2002 and returned it to Bank One. In the Certification, Dr. An
stated that he would evaluate Diaz on May 24, 2002 to determine whether he
can return to work.
Also on April 30, 2002, Diaz had his initial evaluation for physical
therapy at Athletico. Sports Medicine and Physical Therapy Center
("Athletico").*fn3 Physical Therapist Melissa Kidder reported that Diaz
had bilateral lower extremity pain, back pain, decreased range of motion
to the lower extremities, and weakness secondary to discogenic back pain.
Kidder also noted that Diaz was unable to walk more than two blocks
without pain. On a pain scale of 1/10, Diaz rated his back pain at a
level of 4-5, denying any feelings of numbness or tingling at that time.
In May and June of 2002, Diaz saw Dr. An on two occasions. During both
visits, Dr. An noted that Diaz's pain had improved from his preoperative
status. Additionally, Dr. An observed that Diaz had residual leg pain
going down the lower extremities with associated back pain on the left side. Dr. An also noted pain at the bone graft site, which he
expected to improve with time. Further, Dr. An stated that Diaz's
neurologic examination remained normal. After Diaz's June 4, 2002 visit,
Dr. An concluded that Diaz will need an additional one month of physical
therapy and is then expected to return to work with restrictions. Dr. An
also advised Diaz to decrease his use of narcotics at that time.
On June 18, 2002, Sandeep Amin, M.D. ("Dr. Amin") of the Rush Pain
Center ("Pain Center") provided an update on Diaz's progress to Dr. An.
Dr. Amin noted that Diaz's pain was constant, occasionally sharp and
awakens him from his sleep. Additionally, Dr. Amin opined that Diaz was
chronically dependant on his opiate medication and in need of
detoxification. Dr. Amin further opined that Diaz was on escalating doses
of opiates and taking long-term OxyContin prior to the surgery.*fn4
In July and August of 2002, Diaz returned for two additional follow-up
visits with Dr. An. In essence, Dr. An determined that Diaz's pain had
improved since his surgery; however, he was experiencing residual back
pain and numbness in the left thigh, On August 2, 2002, Dr. An noted that
Diaz was to be re-evaluated on September 6, 2002 to establish the
possibility of returning to work with some restrictions.
On September 3, 2002, three days prior to his September 6, 2002
follow-up examination, Diaz presented himself to the emergency room at
Rush Presbyterian St. Lukes Medical Center. Diaz complained of severe
lower back pain, which he rated at 10 on a pain scale of 1/10. Upon
admission, Diaz's blood pressure was 130/70. After an extensive physical
examination, it was determined that with the exception of paraspinal tenderness around T11-L2
on Diaz's right side, all other responses were normal. For pain relief,
Diaz was administered Toradol and morphine and given a prescription for
Ultram and Norco.
On September 6, 2002, Diaz returned to Dr. An for a follow-up visit. Dr.
An noted that Diaz reported significant low back pain in recent weeks.
Diaz related that the pain was constant and worse with standing, bending
and sitting. Dr. An also noted that Diaz had significant tenderness to
palpation in the paraspinal muscles bilaterally at the L3-5 levels. In
addition, Dr. An noted that the degenerative segment was correctly fused
and that Diaz's pain was associated with soft tissues, including muscle
ligaments. Based on these findings, Dr. An concluded that no further
surgery was required. Furthermore, Dr. An stated: "I believe that [Diaz]
remains disabled because of ongoing symptoms of back pain but I hope that
his condition improves with time." A.R. at 177. Dr. An recommended a
follow-up visit in three months to evaluate a possible return to work.
On December 13, 2002, Diaz returned to visit with Dr. An. During the
examination, Diaz reported that the epidural steroid injection under
fluoroscopy, which was administered by Dr. Amin on November 22, 2002,
provided significant relief of his pain.*fn5 This relief came after
conservative treatment in the form of trigger point injections and
medications provided no significant improvement. Dr. An reported that
neurologically, Diaz was at his baseline which was intact. Dr. An also
stated that Diaz had mild palpable tenderness at the level above the
fusion; however, x-rays showed that the hardware was in excellent
position and an adequate posterolateral fusion mass had developed. Dr. An
concluded that there was no indication for any surgical intervention. On February 23, 2003, Diaz again was examined by Dr. An who noted
significant tenderness to palpation at the L4-5 level and paraspinal
muscles. Dr. An concluded that there were no neurologic deficits and
further surgery was not recommended. Dr. An stated that because of Diaz's
persistent symptoms of back pain, he was unable to return to work at that
time. Dr. An attributed Diaz's pain to multiple sources, including
muscles, scar tissue and soft tissue around the surgical area.
On February 26, 2003, Diaz was examined at the Pain Center. His blood
pressure was 121/80 with a pulse of 86. At the same time, Diaz reported a
pain level of 10 on a scale of 1/10.
B. Prudential's Benefit Determinations
Prudential denied Diaz's application for long-term disability benefits
on three occasions. On July 22, 2002, Diaz applied for benefits under the
LTD Plan. In a letter dated August 27, 2002, Prudential informed Diaz that
his initial claim had been disallowed. Upon review, Prudential concluded
that "the available medical evidence does not support your reported
inability to perform your own sedentary occupation with the ability to
change positions at will." Def.'s LR 56.1 Statement of Material Facts,
Ex. B, at 3.
On October 22, 2002, Diaz sought review of Prudential's August 27, 2002
decision to disallow benefits under the LTD Plan. On or about November
22, 2002, Diaz submitted additional medical records to Prudential. In a
letter dated January 22, 2003, Prudential upheld its decision to disallow
benefits under the LTD Plan, thereby denying Diaz's first appeal.
On February 4, 2003, Diaz filed a second appeal. In response, Prudential
submitted Diaz's medical documentation to Gale Brown, Jr., M.D. ("Dr.
Brown") for review and comment. On April 3, 2003, without having
performed a physical examination of Diaz, Dr. Brown opined that Diaz's ongoing symptoms of persistent severe and disabling pain were not
supported by the clinical and diagnostic evidence related to Diaz's
lumbar spine condition. Additionally, Dr. Brown concluded that the
evidence did not support musculoskeletal or neurological impairment that
would preclude Diaz from performing the essential duties of his own
sedentary occupation on a full-time basis with allowance for position
changes. Dr. Brown also noted that there were non-physical factors
adversely impacting gainful employment, including his fear of losing his
job, psychiatric issues and opiod dependancy. Diaz does not seek
long-term disability benefits as a result of psychiatric issues or opiod
dependancy. On April 16, 2003, Prudential upheld its decision to disallow
benefits under the LTD Plan.
On April 22, 2003, upon denial of his final request for
reconsideration, Diaz filed the instant action. Generally, Diaz's
Complaint seeks an award of disability benefits under the LTD Plan
pursuant to § 502(a)(1)(B) of the Employee Retirement Income Security Act
of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B). Compl. ¶ 4. Both parties
have filed motions for summary judgment which are fully briefed and now
before the court.
A. Standard of Review Motions for Summary Judgment
Summary judgment is permissible when "there is no genuine issue as to
any material fact and . . . the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c). The nonmoving party cannot rest on
the pleadings alone, but must identify specific facts, see Cornfield v.
Consolidated High School District No. 230. 991 F.2d 1316, 1320 (7th Cir.
1993), that raise more than a mere scintilla of evidence to show a
genuine triable issue of material fact. See Murphy v. ITT Technical
Services, Inc., 176 F.3d 934, 936 (7th Cir. 19991: see also Shank v.
William R. Hague. Inc., 192 F.3d 675, 682 (7th Cir. 1999) (stating that a party opposing
summary judgment must present "what evidence it has that would convince a
trier of fact to accept its version of events"). A defendant is entitled
to put the plaintiff to his proofs and demand a showing of the evidence.
See. e.g., Navarro v. Fuji Heavy Industries. Ltd., 117 F.3d 1027.1030
(7th Cir. 1997). If the plaintiff fails to come up with the required
proof, the defendant is entitled to summary judgment. See id It bears
repeating that the plaintiff must present evidence, rather than
speculation and conclusions without factual support. See Rand v. CF
Industries. Inc., 42 F.3d 1139, 1146-47 (7th Cir. 1994).
In deciding a motion for summary judgment, the court can only consider
evidence that would be admissible at trial under the Federal Rules of
Evidence. See Bombard v. Fort Wayne Newspapers. Inc., 92 F.3d 560, 562
(7th Cir. 1996). The court views the record and all reasonable inferences
drawn therefrom in the light most favorable to the party opposing summary
judgment. See Fed.R.Civ.P. 56(c); Perdomo v. Browner. 67 F.3d 140, 144
(7th Cir. 1995). "In the light most favorable" simply means that summary
judgment is not appropriate if the court must make "a choice of
inferences." See United States v. Diebold. Inc., 369 U.S. 654, 655
(1962); First Nat'l. Bank of Arizona v. Cities Service Co., 391 U.S. 253,
280 (1968); Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir.
1996). The choice between reasonable inferences from facts is a jury
function. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986).
The court has one task and one task only: to decide, based on the
evidence of record, whether there is any material dispute of fact that
requires a trial. Waldridee v. American Hoechst Corp., 24 F.3d 918, 920
(7th Cir. 1994) (citing Anderson. 477 U.S. at 249-50; 10 Charles A.
Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and
Procedure: Civil § 2712, at 574-78 (2d ed. 1983)). In this case, Diaz's only assertion is one for benefits under his ERISA
plan. "A claim for benefits under an ERISA-governed plan `is a matter of
contract interpretation. When there are no triable issues of fact, we
have held that contract interpretation is a subject particularly suited
to disposition by summary judgement.'" Bechtold v. Physicians Health Plan
of Northern Ind. Inc., 19 F.3d 322, 325 (7th Cir. 1994) (quoting Hickey
v. A.E. Staley Mfg., 995 F.2d 1385, 1389 (7th Cir. 1993)).
B. Standard of Review Denial of Benefits Under ERISA
ERISA was enacted "to promote the interests of employees and their
beneficiaries in employee benefit plans," Shaw v. Delta Airlines. Inc.,
463 U.S. 85, 90 (1983), and "to protect contractually defined benefits."
Massachusetts Mutual Life Ins. Co. v. Russell. 473 U.S. 134, 148 (1985);
see generally 29 U.S.C. § 1001 (setting forth congressional findings and
declarations of policy regarding ERISA). ERISA requires "a `full and
fair' assessment of claims and a clear communication to the claimant of
the `specified reasons' for benefit denial." Black & Decker Disability
Plan v. Nord. 123 S.Ct. 1965, 1967 (2003). ERISA provides "a panoply of
remedial devises" for participants and beneficiaries of benefits plans.
Firestone Tire and Rubber Co. v. Brunch. 489 U.S. 101, 106 (1989) (citing
Massachusetts Mutual Life Ins. Co., 473 U.S. at 146).
The Supreme Court held in Firestone that a "de novo standard of review
applies regardless of whether the plan at issue is funded or unfunded and
regardless of whether the administrator or fiduciary is operating under a
possible or actual conflict of interest." Firestone. 489 U.S. at 115
(citing Restatement (Second) of Trust § 187, Comment'd (1959)). Further,
the Seventh Circuit has stated "[t]he [Firestone] case makes plenary
review the default rule, that is, the rule to govern when the plan
documents contain no indication of the scope of judicial review; and it
is a natural and modest extension of [Firestone], or perhaps merely a spelling out of an
implication of it, to construe uncertain language concerning the scope of
judicial review as favoring plenary review as well." Herzbereer v.
Standard Insurance Co., 205 F.3d 327, 330 (7th Cir. 2000). However "an
ERISA plan can likewise specify that the administrator has discretion in
interpreting or applying it . . . but the conferral of discretion is not
to be assumed." Id. at 331. Discretion is only entitled when the language
of the plan provides it. See id.; see also O'Reilly v. Hartford Life &
Accident Ins. Co., 272 F.3d 955, 959 (7th Cir. 2001).
The Seventh Circuit has suggested "safe harbor" language that would
assure that the administrator has sole discretion, but such language is
not mandatory nor can it be considered magic words. See Herzberger. 205
F.3d at 331 (suggesting the following `safe harbor' language: "Benefits
under this plan will be paid only if the plan administrator decides in
his discretion that the applicant is entitled to them."). Rather, "in
some cases the nature of the benefits or the conditions upon it will make
reasonably clear that the plan administrator is to exercise discretion."
Id. In others, the plan will contain language that, while not so clear as
the suggested `safe harbor' language, "indicates with the requisite of
minimum clarity that a discretionary determination is envisaged." Id.;
see also Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 379 (7th
Cir. 1994) (determining that a plan's language need not contain an
explicit grant of discretionary authority for a discretionary standard of
review to apply). If the administrator has discretion, then the court
reviews the administrator's decision from the perspective of an arbitrary
and capricious standard. See Herzberger. 205 F.3d at 331-32.
In this case, the parties dispute whether the language of the LTD Plan
provides Prudential with discretion to determine whether Diaz is entitled
to disability benefits. As such, the court must look to the language of the LTD Plan to determine the appropriate
standard of review to apply in this case. See Militello v. Central
States. Southeast and Southwest Areas Pension Fund, 360 F.3d 681. 685
(7th Cir. 2004); see also Ramsey v. Hercules Inc., 77 F.3d 199, 205 (7th
1. Plenary vs. Discretionary Review
Arguing which standard of review applies, both parties direct the court
to the LTD Plan's definition of long-term disability. This section
contains the following language in reference to defining a long-term
How Does Prudential Define Disability?
You are disabled when Prudential determines that:
you are unable to perform the material and
substantial duties of your regular occupation due to
your sickness or injury; and
you have 20% or more loss in your indexed monthly
earnings due to that sickness or injury.
After 24 months of payments, you are disabled when
Prudential determines that due to the same sickness or
injury, you are unable to perform the duties of any
gainful occupation for which you are reasonably fitted
by education, training or experience.
A.R, at 421 (emphasis in original). This language clearly indicates that
Prudential determines whether or not an employee is disabled under the
plan. However, this language, by itself, is not enough to confer a grant
of discretionary authority. See Herzberger. 205 F.3d at 333 (holding that
"the mere fact that the plan requires a determination of eligibility or
entitlement by the plan administrator . . . does not give the employee
adequate notice that the plan administrator is to make a judgment largely
insulated from judicial review by reason of being discretionary.") To
confer discretionary authority, the plan language must adequately place
the claimant on notice that his proof must satisfy the plan
administrator's discretion. See Donato. 19 F.3d at 379. To do this, the
Seventh Circuit has held that the plan language must treat total disability as a
condition which is to be assessed subjectively by the plan
administrator. See Ramsey. 77 F.3d at 205. Here, because the factors
Prudential must analyze to make its determination are arguably
objective, rather than subjective, this language alone does not provide
"the requisite minimum clarity that a discretionary determination is
envisaged." See Herzberger. 205 F.3d at 333.
Nevertheless, the court's analysis does not stop here. The court must
examine the entirety of the LTD plan to determine whether its language is
sufficient to confer discretion on Prudential. In the section styled
"Long Term Disability Coverage Claim Information," under the heading
"What Information is Needed as Proof of Your Claim?" the plan states: "We
may request that you send proof of continuing disability, satisfactory to
Prudential, indicating that you are under the regular care of a doctor."
A.R. at 433 (emphasis in original). Unlike the section defining total
disability, this section shows that the required proof necessary for
making a claim will be assessed subjectively. The phrase "satisfactory to
Prudential" modifies the phrase "proof of continuing disability," and it
clearly demonstrates that any proof submitted upon a claim for benefits
must meet specific requirements as subjectively determined by
Prudential. Such language adequately places the claimant on notice that
his proof must satisfy Prudential's discretionary authority. See Donato,
19 F.3d at 379 (holding that the language "all proof must be satisfactory
to us" confers discretionary authority'); see also Bali v. Blue Cross &
Blue Shield Ass'n. 873 F.2d 1043, 1047 (7th Cir. 1989) (holding that the
phrase "determined on the basis of medical evidence satisfactory to the
Committee" results in a review under the arbitrary and capricious
standard). As a result, the court will apply the arbitrary and capricious
standard of review to Diaz's claim for disability benefits. See Donato,
19 F.3d at 380. 2. The Arbitrary and Capricious Standard of Review
"Under the arbitrary and capricious standard, determinations will be
overturned by the court only when they are `unreasonable, and not [when]
merely incorrect.'" Herzberger, 205 F.3d at 329; see also James v.
General Motors Corp., 230 F.3d 315, 317 (7th Cir. 2000) (stating a
benefit determination will only be found arbitrary and capricious when
"downright unreasonable"). To find that a decision was arbitrary and
capricious, the court must first find that the decision-maker erred
seriously in considering the evidence. Patterson v. Caterpillar. Inc.,
70 F.3d 503, 505 (7th Cir. 1995). The court must ask whether the
"decision was (1) without reason, (2) unsupported by substantial
evidence, or (3) erroneous as a matter of law." Udoni v. Department Store
Div. of Dayton Hudson Corp., No. 94 C 3577, 1996 WL 332717, at *2 (N.D.
Ill. June 13, 1996) (citation omitted). The court does not ask whether
the court, a jury, or a different plan administrator would or could have
granted the benefits; any questions of judgment are left to the plan
administrator. Patterson. 70 F.3d at 505 n3. When considering a claim
under the arbitrary and capricious standard, the court may refer only to
that evidence which was before the decision-maker at the time of the
denial at issue. See Perlman v. Swiss Bank Corp., 195 F.3d 975, 982 (7th
Cir. 2000) (defining the boundaries of permitted discovery where a plan
beneficiary challenges the disability determination); see also Krawczyk
v. Harnischfeger Corp., 41 F.3d 276, 279 (7th Cir. 1994). The court may
not re-weigh the evidence before the decision-maker, it must only
determine if the decision was reasonable. Chandler v. Underwriters
Laboratories. 850 F. Supp. 728, 734 (N.D. Ill. 1994). Accordingly, the
plan's decision "shall not be overturned . . . if it is possible to offer
a reasoned explanation, based on the evidence, for the particular
outcome." Exbom v. Central States. Southeast & Southwest Areas Health
& Welfare Fund. 900 F.2d 1138, 1142 (7th Cir. 1990) (citations
omitted). With these principles in mind, the court will examine Diaz's claim for long-term
disability benefits under the LTD Plan.
C. Diaz's Claim for Disability Benefits Under the LTD Plan
Diaz's contends that Prudential erred in disallowing his claim because
its decision was based on a selective review of the medical evidence.
Primarily, Diaz's arguments suggest that Prudential ignored evidence
showing high levels of pain, decreased flexibility and strength, gait
deviations, and Diaz's inability to walk or sit for extended periods of
time. See Pl.'s Reply to its Mot. for Summ. J., at 8. Diaz further argues
that Prudential erred in disregarding Diaz's subjective reports of
disabling pain after finding that the objective medical evidence did not
fully support such a condition. See Pl.'s Mot. for Summ. J., at 6.
To support his position, Diaz relies on the Seventh Circuit's holding
in Govindarajan v. FMC Corp., 932 F.2d 634 (7th Cir. 1991). In
Govindaraian. the defendant's decision to terminate the plaintiff's
disability benefits was based primarily upon a single medical report. 932
F.2d at 637. In this report, the plaintiff's treating physician indicated
that the plaintiff could return to work. Id. In making its benefit
determination, the defendant ignored subsequent reports in which the
plaintiff's treating physician reversed his previous conclusion regarding
the plaintiff's ability to return to work. Id. The defendant also ignored
a contrary conclusion from the chief of spinal surgery at Loyola
University Medical Center, who also examined the plaintiff. Id. Accepting
the district court's finding that the defendant failed to review the
entire medical file in assessing the plaintiff's claim, the court held
that such a selective review of the evidence, coupled with the completely
erroneous assertion that there was no physical cause for the subjective
symptoms of pain, renders the defendant's decision arbitrary and
capricious. Id After reviewing Prudential's decisions disallowing Diaz's claim for
disability benefits, the court finds that Prudential's determination was
not based on a selective review of the medical evidence. The record shows
that Prudential reviewed the medical reports from Dr. An, Dr. Amin and
Athletico. See Def.'s Statement of Material Facts, Ex. B. at 3; A.R. at
312, 319. Unlike the plan administrator in Govindaragan, Prudential did
not base its decision on a single report from Diaz's treating physician.
Instead, Prudential relied on all reports submitted by Dr. An, while
commenting on most of them. Specifically, Prudential's decisions refer to
Dr. An's reports dated April 23, 2002, May 10, 2002, June 4, 2002, July
19, 2002, August 2, 2002, and September 6, 2002. See id. Further, prior
to ruling on Diaz's second request for reconsideration, Prudential
acknowledged its receipt of additional reports from Dr. An. A.R. at 319,
While Prudential's decisions focus mainly on the medical evidence
contained in Dr. An's reports, the court is also satisfied that
Prudential carefully considered the evidence submitted by both Dr. Amin
and Athletico, much of which highlights Diaz's subjective reports of
severe back pain.
In essence, Prudential concluded that Diaz's surgery was successful
despite his reports of severe continuing back pain. For example, in its
initial denial, Prudential states:
Medical records reveal that diagnostically and
structurally, you have done well with regard to
your lumbar fusion. X-rays performed reveal that
the fusion is progressing and alignment is normal.
The most recent Ct scan performed on July 31,
2002, due to continued pain and weakness, showed a
Def.'s Statement of Material Facts, Ex. B. at 3. This conclusion was
reiterated in response to both of Diaz's requests for reconsideration.
See A.R. at 312: see also A.R. at 320. Additionally, relying on its
medical consultant in response to Diaz's second request for
reconsideration, Prudential states:
Mr. Diaz's ongoing symptoms of persistent severe and
disabling pain are not supported by the clinical and
diagnostic evidence related to Mr. Diaz' [sic] lumbar
spine condition. Dr. Brown also notes that Mr. Diaz'
[sic] post-operative x-rays have demonstrated a solid lumbar fusion, satisfactory
alignment and positioning of hardware. Further, the
diagnostic studies reveal no evidence of
complications, such as loosening of hardware or
neurological encroachment. Dr. Brown indicates that
Mr. Diaz's post operative physical and neurological
examinations have been normal. Further, the medical
evidence does not reveal a musculoskeletal impairment
such as spasm, instability, range of motion deficits
or positive nerve root tension signs. Dr. Brown
indicates that Mr. Diaz' [sic] symptoms of lower
extremity, numbness and pain, along with his reports
of severe low back pain do not correlate with the
clinical or diagnostic evidence.
A.R. at 320. Thus, Prudential acknowledged that Diaz believes he is in
severe pain at times. However, ultimately it concluded that the available
clinical or diagnostic medical evidence does not support plaintiff's
self-reported symptoms of severe low back pain. Prudential also
acknowledged that although Diaz may continue to experience some back pain
and require additional treatment, his condition does not support an
impairment that would prevent him from performing his sedentary duties.
See A.R. at 320. Further, Prudential reasoned that Diaz's position as a
computer programmer analyst allowed for reasonable limitations and
restrictions, such as no frequent or constant bending or twisting at
waist level, no heavy lifting, and the ability to change positions every
15-30 minutes as needed for comfort. See id. Based on these findings, the
court is satisfied that Prudential considered all of the available
medical evidence before making its determination.
Additionally, Prudential did not disregard Diaz's subjective reports of
disabling pain. The Seventh Circuit has held that a plan administrator
cannot disregard the plaintiff's subjective reports of disabling pain,
particularly when the pain is of the type that cannot be detected by
objective laboratory tests. Hawkins v. First Union Corp. Long-Term
Disability Plan. 326 F.3d 914, 919 (7th Cir. 2003) (finding that
plaintiff who suffered from fibromyalgia was totally disabled). In
Hawkins. the plan administrator's decision gave little weight to the
plaintiff's subjective reports of pain simply because the objective
medical evidence did not support them. Id. Applying the arbitrary and capricious standard of review, the court rejected the plan
administrator's determination. Id. Thus, Hawkins stands for the
proposition that a plan administrator's decision to disregard the
plaintiff's subjective reports of pain, solely because the objective
medical evidence does not support them, is arbitrary and capricious. Id.
In this case, the record clearly shows that Prudential considered
Diaz's subjective reports of pain prior to making its determination.
Unlike the plan administrator in Hawkins. Prudential's decision to
discount Diaz's subjective reports of pain was based on numerous
factors, not just the lack of supporting objective medical evidence. For
example, in the section of Dr. Brown's report focusing on the
non-physical factors adversely impacting Diaz's gainful employment, Dr.
Brown outlines numerous justifications which suggest an exaggerated level
of pain. See A.R. at 034. These justifications include Diaz's fear of
losing his job; psychiatric issues, including anxiety and depression; the
lack of appropriate physiological responses to Diaz's reports of severe
pain, i.e., signs of hypertension and tachycardia; and Diaz's strong
dependency on opioids. See id. Additionally, the record shows that Diaz's
symptoms of pain tended to increase each time he was to be re-evaluated
for return to work. This result is contrary to Dr. An's assessment of the
objective medical evidence, and his statements which indicate that he is
optimistic about Diaz's return to work. Thus, in addition to finding that
Diaz's ongoing symptoms of severe back pain are not supported by the
clinical and diagnostic evidence related to Diaz's lumbar spine
condition, Prudential had reason to find that these non-physical factors
exacerbated Diaz's belief of severe pain. Such a finding is clearly
reasonable, and Diaz has failed to show that Prudential's decision was
arbitrary and capricious. Finally, Diaz makes two additional arguments in support of his claim
for benefits. First, Diaz argues that the Social Security
Administration's ("SSA") finding of disability, issued on July 24, 2003,
confirms Prudential's mistaken conclusion in this case. Although the
court may consider such evidence as probative, see Ladd v. ITT Corp.,
148 F.3d 753, 754 (7th Cir. 1998), it certainly is not binding. See
Donato, 19 F.3d at 380. The SSA's determination is even less probative
when, as in this case, it was not before the plan administrator at the
time of the denial. See id. (holding that the plan administrator is only
bound to consider what evidence and information it had before it at the
time of decision). Further, the criteria used by the SSA in determining
disability differs from that which is outlined in the LTD Plan. See
Nord, 123 S.Ct. at 1971 (noting the difference between the Social
Security Act and ERISA plans). Nevertheless even if the criteria were the
same, Diaz has not met his burden of establishing that this alone makes
Prudential's decision arbitrary and capricious. It is not unacceptable
for individual fact-finders to view identical evidence in different ways
and for neither of them to be vulnerable to attack under the arbitrary
and capricious standard. To suggest that Prudential could not reach an
alternate opinion based upon the same evidence is in itself
Second, Diaz argues that Prudential should have accorded more weight to
the reports submitted by Diaz's treating physicians than to the one
submitted by Dr. Brown, a non-examining physician. In Nord. the Supreme
Court rejected this very argument. See id. The Court held that although
plan administrators may not arbitrarily refuse to credit reliable opinions
of a claimant's treating physician, ERISA does not require plan
administrators to accord special deference to those opinions. See id.
Here, Prudential decided to reject Dr. An's conclusion that Diaz was
disabled after evaluating the entirety of his reports. By accepting the
contrary opinion of Dr. Brown, a non-19 examining physician, Prudential did not err in making its final
determination. See id. Therefore, Prudential's decision to deny Diaz's
claim for long-term disability benefits was not arbitrary and
For the foregoing reasons, Defendant's Motion for Summary Judgment is
GRANTED; Plaintiff's Motion for Summary Judgment is DENIED. IT IS SO