The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff James Dubois worked as a machine shop supervisor for
Sloan Valve Company, a manufacturer of plumbing equipment. Sloan
has a long term disability plan which is administered by
defendant The Paul Revere Life Insurance Company (the "Revere
Plan"). In late 1994, plaintiff was diagnosed as having a
herniated disk. From January 1995 through April 1999, plaintiff
had four surgeries on his spinal column. From some time after
1994 until September 23, 1999, plaintiff received temporary total
disability benefits through Sloan's workers' compensation
program. Effective February 9, 1998, the same date on which he
had his first spinal fusion, plaintiff was found qualified for
social security disability benefits. In January 2000, plaintiff
applied for disability benefits under the Revere Plan, claiming to be disabled due to a lower back injury since
February 9, 1998. Under a reservation of right and taking into
account an applicable elimination period, plaintiff was paid
disability benefits effective July 9, 1998. In a determination
dated April 5, 2001, however, defendant found that plaintiff was
no longer directly disabled due to his back problems, but was
then prevented from working due to an addiction to prescription
narcotics prescribed for pain related to his back problems.
Benefits were discontinued, effective April 9, 2001, based on
plaintiff having exceeded the 24-month limit for a disability
caused by drug abuse. Two subsequent appeals were denied.
The parties agree that plaintiff has exhausted his
administrative remedies. They also agree that the Revere Plan is
an employee benefit plan to which the Employee Retirement Income
Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.,
applies. Further, the parties agree that the Revere Plan accords
defendant discretion in determining who is entitled to benefits
under the Plan and therefore plaintiff's challenge to defendant's
determination is subject to an "arbitrary and capricious"
standard of review. While plaintiff continues to disagree with
the determination that his back problems themselves do not
prevent him from working and notes that there was evidence
supporting his claim, he does not contend that defendant's
contrary finding was arbitrary and capricious. Instead, plaintiff contends that defendant's application of the Revere
Plan's drug abuse limitation was arbitrary and capricious.
Arbitrary and capricious review
is, of course, a deferential standard of review.
Under the arbitrary and capricious standard, a plan
administrator's decision should not be overturned as
long as (1) "it is possible to offer a reasoned
explanation, based on the evidence, for a particular
outcome," (2) the decision "is based on a reasonable
explanation of relevant plan documents," or (3) the
administrator "has based its decision on a
consideration of the relevant factors that encompass
the important aspects of the problem." Exbom v.
Central States, Southeast & Southwest Areas Health
and Welfare Fund, 900 F.2d 1138, 1142-43 (7th Cir.
1990) (citations omitted). Nevertheless,
"[d]eferential review is not no review," and
"deference need not be abject." Gallo v. Amoco
Corp., 102 F.3d 918, 922 (7th Cir. 1996). In some
cases, the plain language or structure of the plan or
simple common sense will require the court to
pronounce an administrator's determination arbitrary
and capricious. Id.
Hess v. Hartford Life & Accident Insurance Co., 274 F.3d 456
461 (7th Cir. 2001). The decision of the administrator will not
be upheld where there is an absence of reasoning supporting the
determination. Hackett v. Xerox Corp. Long-Term Disability
Income Plan, 315 F.3d 771
, 774-75 (7th Cir. 2003). The
administrator "must articulate a rational connection between the
facts found, the issue to be decided, and the choice made."
Dabertin v. HCR Manor Care, Inc., 373 F.3d 822
, 828 (7th Cir.
2004). Also, a determination may be arbitrary and capricious where the administrator has disregarded the submissions of the
claimant. Hess, 274 F.3d at 463.
Under arbitrary and capricious review, review of a plan's
decision is generally limited to evidence or information that was
before the reviewing body. Id. at 462; Perlman v. Swiss Bank
Corp. Comprehensive Disability Protection Plan, 195 F.3d 975
982 (7th Cir. 1999); Bahnaman v. Lucent Technologies, Inc.,
219 F. Supp. 2d 921, 925 (N.D. Ill. 2002). Although defendant's
motion is a summary judgment motion, actually before the court is
administrative review of defendant's decisions with the
administrative records being the essential uncontested fact.
Evidence that was outside the administrative record is only
appropriate to consider if it goes to procedural issues such as
exhaustion, in which case the usual summary judgment rules would
be applied in determining if there are any material factual
disputes. See Wilkins v. Baptist Healthcare System, Inc.,
150 F.3d 609, 619 (6th Cir. 1998); Shyman v. UNUM Life Insurance Co.
of America, 2004 WL 609280 *2 (N.D. Ill. March 25, 2004); Sisto
v. Ameritech Sickness & Accident Disability Benefit Plan, 2003
WL 22472022 *2 (N.D. Ill. Oct. 31, 2003); Eriksen v.
Metropolitan Life Insurance Co., 39 F. Supp. 2d 864
, 866 n. 2
(E.D. Mich. 1999). Cf. Perlman, 195 F.3d at 982 (outside
facts could be considered if a Plan was accused of not doing what
it said it did). Plaintiff claims he is disabled from performing his work as a
machine shop supervisor. The Revere Plan defines total disability
from performing the employee's occupation as follows:
Totally disabled from your own occupation or total
disability from your own occupation means:
1. because of injury or sickness, you cannot perform
the important duties of your own occupation;
2. you are receiving Doctor's Care. We will waive
this requirement if we receive written proof
acceptable to us that further Doctor's Care would be
of no benefit to you; and
3. you do not work at all.
Def. Exh. B at 9.
The Revere Plan includes the following limitation on disability
For any disability which is caused by a psychiatric
disorder, alcoholism, drug abuse or the use of any
drug other than one administered on a doctor's
advice, benefits are payable for up to twenty-four
months whether or not you are hospital confined.
After twenty-four months, subject to all other policy
provisions, we pay benefits only if you continue to
be hospital confined due to the disability, and for
up to three months after the date you are no longer
confined. . . .
Id. at 26. The Plan defines "hospital confined" and
"psychiatric disorder," id., but "drug abuse" is not further
Defendant's April 5, 2001 determination letter (Def. Exh. C at
807-05) accepts the findings contained in the lengthy report of independent medical examiner Dr. J.S. Player, which had also
been reviewed and accepted by defendant's medical department. The
determination letter notes Dr. Player's findings that plaintiff
inconsistently reported pain and "demonstrated symptom
magnification and overstatement of pain." Def. Exh. C at 807. It
was found that plaintiff had no physical limitation preventing
him from performing sedentary or light duty with a 25-pound
weight lifting restriction. It was further found:
Since you are able to lift up to 25 pounds, you are
capable, from a physical standpoint, of performing
your occupation as it only requires lifting up to 20
pounds occasionally. However, Dr. Player reports
that, "the examinee admitted that he has ingested
Vicodin on a daily basis at a frequency of 6-8 to 12
pills per day since 1995. In this regard, the
examinee is addicted to this narcotic analgesic and
is currently substituting methadone for his
hydrocodone addiction. The examinee should not return
to work until he has entered a rehabilitation program
and has resolved his addiction to narcotics. His
addiction to narcotics is the primary reason for his
failure to recover."
Id. at 806.
After quoting the language of the 24-month limitation, the
April 2001 determination concluded:
Dr. Player has reported that the reason you are
unable to return to work is due to your narcotic
addiction. You have been paid benefits for a period
of July 9, 1998 to April 9, 2001 under reservation of
rights. Therefore, the twenty four month limitation
as stated above expired on July 9, 2000. Since you have not been hospital confined as stated
in the policy provision above, the benefit period for
disability due to drug abuse has been exhausted, and
as such, no further benefits are payable.
Id. at 805.
Plaintiff was advised of his right to seek further review and
appeal, including the right to comment on the decision and/or
submit additional documentation. Still proceeding pro se,
plaintiff timely sought review and an appeal. He submitted
additional materials from his treating physicians and questioned
accepting Dr. Player's opinion based on a single 25-minute
examination instead of the opinions of physicians who had
examined plaintiff numerous times and plaintiff's own subjective
testimony as to his pain. Regarding his use of pain medication,
First and foremost let me address Dr. Player's
opinion of my medication and usage of. I strictly
abide by my Doctors' recommendations as they pertain
to the dosage and type of medication. As if dealing
with my pain is not enough, use of pain medication
has serious long term effects to internal organs such
as my liver, which must also be closely monitored. I
have had to alternate medication types to minimize
such long term damages. In most cases, if there has
been ANY deviation, it has been MY decision to
request my Doctor to reduce the recommended dosage
or, in some cases, to completely abandon the
particular medication because of its adverse effects
on my mental and physical well being. To be honest, some times I am not sure which are the
lesser of the two evils. My usage of medications are
NOT for recreational pleasures.
Id. at 825 (some typographical or grammatical errors have been
corrected without notation).
The author of the April 2001 determination letter did not
change her decision on further review, so the case was forwarded
to Appeals. See id. at 826. In a determination letter dated
October 3, 2001 (id. at 834-32), the initial decision to
terminate benefits was upheld on appeal. The October 2001
determination acknowledges that some evidence supports
plaintiff's contentions. However, it explains that, based on the
review of defendant's medical consultant, the record supported
that, although plaintiff had back problems, he was still able to
perform light work. See id. at 833-32. The October 2001
determination mischaracterizes the April 2001 decision as having
found that plaintiff was not disabled from performing the duties
of his occupation. Id. at 834. Instead, the April 2001
determination had adopted Dr. Player's finding that plaintiff
could not perform his job duties because of his narcotics
addiction and denied benefits based on exhausting the 24-month
limitation, not based on being capable of performing job duties.
Moreover, although the issue was raised in plaintiff's appeal,
the October 2001 decision did not, in any way, address the issue of the use of narcotics. It did not, in any way, acknowledge
that, although Dr. Player found no physical limitation preventing
plaintiff from working, he also found that plaintiff could not
work due to the use of narcotics. The October 2001 determination
offered plaintiff the opportunity to submit further documentation
and stated that additional information would be requested from
plaintiff's treating physicians, including the opportunity to
comment on Dr. Player's report.
Both treating physicians submitted some additional materials
that were considered in a second appellate determination dated
November 16, 2001 (id. at 853-52). The additional materials
were provided to a board-certified physiatrist for review. The
second appellate determination makes passing reference to the
treating physicians referring to narcotics use and other medical
evidence. It concludes:
. . . This information did not alter our previous
conclusion that your condition is not of such a
severe nature that you would be prevented from
performing sedentary to light exertional activities
with a twenty (25) [sic] pound lifting restriction.
Light exertional activity was previously defined in
the enclosed notice dated October 3, 2001. Your
occupation as a Shop Foreman is considered a light
In sum, it has been rightly determined that you are
not disabled as defined by the policy from performing
the duties of your occupation as a Machine Shop
Foreman. Consequently, no further benefits are due or
payable on this claim. . . .
Id. at 852. The November 16, 2001 determination does not
expressly address or discuss the narcotics issue.
The issue presently raised in this case is not whether there
was sufficient evidence supporting that plaintiff's back problems
do not physically restrict him from performing his occupation.
The issues presently raised by plaintiff are whether defendant
adequately considered plaintiff's use of prescribed narcotics
and/or acted reasonably in construing and applying the 24-month,
drug-abuse limitation. The initial April 2001 determination found
that plaintiff was unable to perform his former occupation
because of a "narcotic addiction" and implicitly determines,
without any express discussion, that this addiction constitutes
"drug abuse" as that term is used in the 24-month limitation
provision. On review and appeal, plaintiff challenged the
determination that his use of prescribed narcotics constituted
drug abuse subject to the limitation.*fn1 However, neither
of the appellate determinations addresses the narcotics issue.
Additionally, although the appellate determinations recite that they are upholding the initial April 2001
determination, they incorrectly ...