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Fischer v. Liberty Life Assurance Co.

August 4, 2009


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 3256-Joan B. Gottschall,Judge.

The opinion of the court was delivered by: Wood, Circuit Judge.


Before POSNER, FLAUM, and WOOD, Circuit Judges.

This case arose after Liberty Life Assurance Company of Boston ("Liberty") decided to terminate the payment of long-term disability benefits to the plaintiff, Bruce Fischer. Fischer tried to reverse that decision at the administrative level. When he could not, he sued Liberty and the sponsor of his benefits plan, Stein Roe Investment Counsel LLC Long-Term Disability Plan (to which we refer collectively as "Liberty"), seeking an order compelling Liberty to continue his benefits. The district court granted Liberty's motion for summary judgment, and Fischer appealed. We conclude that the district court properly applied a deferential standard of review to Liberty's decision, and that, under that standard, there is no reversible error.



Fischer is a 59-year-old man who began working for Stein Roe Investment Counsel, LLC, in May 1996 as the company's lead programmer. On September 22, 2001, he ended his employment with Stein Roe and applied for short-term disability benefits under Liberty's benefits plan ("Plan"), claiming memory loss and attention problems. Liberty approved Fischer's claim and he began receiving short-term disability benefits effective September 22, 2001. Shortly thereafter, Fischer sought treatment from his physician, Dr. Randy Georgemiller. In November 2001, Dr. Georgemiller diagnosed Fischer with "Axis I major depression, recurrent, moderate cognitive disorder NOS, and R/O Dementia, Alzheimer's type, early onset with depression; Axis II no diagnosis; Axis III mild cortical atrophy, diabetes mellitus, hypertension, arthritis, asthma and ulcerative colitis; Axis IV psychological and environmental problems, occupation problems, and economic problem[s]; and Axis V FGAF 50 current." On November 28, 2001, Fischer saw neurologist Dr. Jordan Waxman, who diagnosed him with "a profound depression with questionable coexistent dementia." In a February 18, 2002, attending physician's statement (a form used by Liberty's claims department), Dr. Robert Greendale, who had examined Fischer each month from June 2001 to January 2002, diagnosed him with major depression secondary to a medical condition. In a similar statement written on February 26, 2002, Dr. Laura LaFave, who had seen Fischer beginning in November 2001, diagnosed him with "severe depression disorder with cognitive impairment" and noted that Fischer had problems with memory and concentration.

On February 20, 2002, Liberty acknowledged that it had received a claim from Fischer for long-term disability benefits. Liberty informed Fischer that since his disability officially began on September 22, 2001, a 180-day waiting period would apply, during which time Liberty would evaluate his eligibility for benefits. Fischer submitted statements from Drs. Waxman, Greendale, and LaFave to Liberty. In addition, presumably in an effort to bolster his claim, Fischer sought diagnoses from additional physicians. On March 21, 2002, Fischer saw neurologist Dr. Zoran Grujic. Dr. Grujic noted that Fischer had some problems with attention, memory encoding, and memory retrieval, but no problems with forgetfulness. (We are not sure how "memory retrieval" differs from forgetfulness, but Dr. Grujic drew this distinction.) Dr. Grujic also recorded that Fischer had a history of encephalitis as a child and that he suffered from "periods of zoning out" that were occasionally accompanied by urinary incontinence. Based on these observations, Dr. Grujic suggested the "possibility of a partial complex seizure disorder as a contributor to his decline" and also noted that Fischer's preliminary test results and age were "atypical" for Alzheimer's disease. Dr. Grujic thus recommended further examinations, including a long-term electroencephalography ("EEG") study and a positron emission tomography ("PET") scan.

On May 24, 2002, Liberty approved Fischer's claim for long-term disability benefits, retroactive to March 21, 2002, at a level representing 60% of his pre-disability earnings (because his condition was pre-existing). Liberty also told Fischer that, as the Plan required, his disability status would be "evaluated relative to [his] inability to perform material and substantial duties of his occupation" for the first 24 months, and thereafter his status would be "evaluated relative to [his] inability to perform the material and substantial duties of his own or any occupation for which he has training, education, or experience." Liberty noted that, because of the nature of his illness, which it described as major depression, Fischer was subject to the Plan's limitation for mental illnesses. Under this provision, benefits for a disability attributable to "Mental Illness, Substance Abuse, or Non-Verifiable Symptoms" were subject to a 24-month maximum. The Plan also contained an exception to that rule:

Benefits may exceed this limitation only if the Covered Person is confined to a hospital or institution for Mental Illness or Alcohol or Drug Abuse, or is participating in an Extended Treatment Plan established in writing by a Physician in lieu of hospitalization. The extension of benefits beyond the 24 month limitation is subject to review by Liberty.

Liberty also alerted Fischer to the fact that there was no guarantee that he would receive benefits for the full 24-month benefit period.

On July 25, 2002, Fischer underwent a PET scan. The results of the test were first reviewed by Dr. Grujic on August 13, 2002. Dr. Grujic noted that the PET scan raised the possibility of early Alzheimer's disease. In his view, however, taking Fischer's medical history as a whole, Fischer could not properly be diagnosed with Alzheimer's without further testing. Dr. Grujic thought that the unusual PET scan results might be attributable to the encephalitis that Fischer had suffered as a child. In addition, taking into account a 24-hour EEG that also had been performed and returned negative results, Dr. Grujic continued to believe that Fischer might have an underlying seizure disorder and thought that Fischer might benefit from medications for that condition.

On February 3, 2003, Liberty's consulting neuro-psychologist, Dr. James Taylor, reviewed Fischer's case. Dr. Taylor was unaware that Fischer had completed EEG and PET studies the previous summer. In the absence of such studies, Dr. Taylor decided that further neuropsychological testing was needed to evaluate Fischer's work capacity. Dr. Taylor thought that prior assessments of Fischer's neuropsychological and neurological status did not conclusively establish his level of functional impairment and were in any event too dated to be used to evaluate his current work capacity.

Dr. Taylor wanted to rule out the possibility that some of Fischer's functional losses were the result of a mood disorder and thus reversible. As a result, he recommended that Liberty follow up to see whether EEG and PET studies had been ...

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