The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge
MEMORANDUM OPINION AND ORDER
In several recent rulings, the Seventh Circuit has emphasized that district court de novo review of benefits denials under the Employee Retirement Income Security Act of 1974 ("ERISA") is not "review" at all. See, e.g., Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 644 (7th Cir. 2007) (observing that confusion in this realm may be at least partially a product of the "common phrase" de novo review). Rather, when the de novo standard applies, a denial of benefits under an ERISA plan becomes essentially an ordinary contract dispute, albeit one in which federal common law rules of contract interpretation apply. Id. The task for a court that decides such a case is familiar; it must decide for itself "where the truth lies." Krolnik v. Prudential Ins. Co. of Am., 570 F.3d 841, 842 (7th Cir. 2009). In making that truth determination, the Federal Rules of Civil Procedure impose limits on judges at the summary judgment phase. A credibility determination that may be appropriate after a bench trial, for example, cannot properly be made on a motion for summary judgment.
Old habits die hard, however, for the abuse of discretion standard to which litigants have become accustomed seemingly pervades the way that many litigants think about (and argue) ERISA cases. This case illustrates the challenges of adapting to the clarified procedural environment. The Seventh Circuit has stressed that "[i]f a paper record contains a material dispute, a trial is essential." Krolnik, 570 F.3d at 844. Here, the parties relied almost entirely on the paper administrative record, one that is pock-marked (if not permeated) by factual disputes relating to whether Plaintiff was disabled prior to the termination of his employment (and with it, his coverage) in August 2005. For that reason, the Court denies the parties'cross-motions for summary judgment [54, 62].
Plaintiff, Alvin L. Hintz, Jr. ("Hintz") filed this lawsuit on March 3, 2008, pursuant to the Employee Retirement Security Act of 1974 (29 U.S.C. § 1001 et seq.) ("ERISA"). Hintz's complaint alleges that Defendant, Prudential Insurance Company of America ("Prudential") improperly denied, under an employee welfare benefit plan, long term disability ("LTD") benefits to Hintz, who suffers from multiple maladies that rendered him disabled within the meaning of the plan. His suit is based on 29 U.S.C. § 1132(a)(1)(B), which allows a plan participant or beneficiary to "recover benefits due to him under the terms of the plan." Prudential's answer generally denies Hintz' s operative factual allegations and asserts several affirmative defenses. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C. §§ 1132.
After Hintz amended his complaint, dropping as a defendant "Long Term Disability Coverage for Class 1: US Executives of CCL Custom Manufacturing, Inc.," the parties engaged in discovery and then filed cross motions for summary judgment [54, 62]. The parties'motions and supporting memoranda [see 54, 55, 62, 63, 69, 71] argue, although reaching opposite conclusions, that there is no genuine dispute of material fact as to Hintz's disability status. As already intimated, the Court concludes that neither party is correct.
The Court takes the relevant facts primarily from the parties'respective Local Rule ("L.R.") 56.1 statements: Defendant' s Statement of Facts ("Def. SOF") , Plaintiff's Response to Defendant' s Statement of Facts ("Pl. Resp. Def. SOF") , Plaintiff's Statement of Facts ("Pl. SOF") , and Defendant' s Response to Plaintiff's Statement of Facts ("Pl. Resp. Def. SOF") .*fn1
A. Hintz's Employment and Long Term Disability Benefits Policy
Alvin Hintz was employed as the Director, Information Systems with CCL Custom Manufacturing, Inc., ("Custom Manufacturing") in Danville, Illinois, for more than 10 years. PRU 118. Prior to Hintz' s termination, the Company was purchased by KIK Custom Products, Inc. ("KIK"). Pl. Resp. Def. SOF ¶ 5. As discussed more fully below, Hintz claims-and Prudential denies-that he was only able to continue working under medical restrictions and accompanying workplace accommodations. See Pl. SOF ¶¶ 7, 13; Def. Resp. Pl. SOF ¶¶ 7, 13.*fn2
A few months after KIK took over Custom Manufacturing, on August 8, 2005, Plaintiff's employment was terminated. Pl. SOF ¶ 15. Eight other employees were terminated around that period of time. Def. SOF ¶ 16*fn3 ; PRU 272-77; see also id. at 130. The separation agreement that Hintz signed included a "general release of claims and promise not to sue." In pertinent part, the release provided that Hintz would "to the extent permitted by law * * * [agree] not to sue * * * employee benefit plans * * * for any and all claims * * * arising under federal, state or local laws relating to employment, including * * * the Employee Retirement Income Security Act * * *." PRU 273.
The long term disability plan at issue in this case, Group Insurance Policy No. G-41356-IL (the "Policy"), was underwritten and insured by Prudential and was part of CCL's employee welfare benefit plan. Def. Resp. Pl. SOF ¶ 10. Hintz was covered by the Policy incident to his employment with CCL, and therefore is a "participant" in the statutory parlance. Id.; see also 29 U.S.C. § 1002(7).
The Policy contains the following definition of 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 a 20% or more loss in your indexed monthly earnings due to that sickness or injury.
Def. SOF ¶ 9. "Material and substantial duties," in turn, are defined as duties that "[a]re normally required for the performance of your regular occupation" and which "[c]annot be reasonably omitted or modified, except that if you are required to work on average in excess of 40 hours per week," then you will not be disabled if you "have the capacity to work 40 hours per week." Def. SOF ¶ 10.
The policy also sets out seven types of information that a claimant must provide in order to prove a claim, including "[a]ppropriate documentation of the disabling disorder." PRU 23 (emphasis added). Finally, the Policy has a limited pay period for a sickness or injury which, "as determined by Prudential, are [sic] primarily based on self-reported symptoms." PRU 18. Self-reported symptoms means those symptoms for which "the manifestations of your condition * * * [reported to your doctor] are not verifiable using tests, procedures and clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headache, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy." PRU 19.
B. Hintz's Pre-Termination Medical History
The record indicates that prior to the termination of Hintz' s employment, Hintz sought treatment for a number of medical conditions.
On January 27, 2003, Hintz saw Dr. Paul R. Wilson at the Carle Foundation Hospital. Dr. Wilson' s "progress notes" do not indicate the reason for Hintz' s visit. The notes state that Hintz had "suboptimally controlled insulin-requiring diabetes." PRU 479; Def. Resp. Pl. SOF ¶ 34. The notes further indicate that Hintz had "significant hyperlipidemia," as well as hypertension. PRU 479. Dr. Wilson' s plan states, in part, that "[Hintz] is to work much harder on diet and exercise," that he "was [sic] started back with cardiac rehab," return for a follow up visit and lab work in 8-10 weeks. Id.*fn4 and that Hintz was to
On July 7, 2003, Hintz saw Dr. Lynette Smith-Caillouet. Doctor Smith-Caillouet was Hintz' s primary care physician. PRU 282. The doctor' s notes from the July 2003 visit indicate that the purpose of the visit was to "follow-up on his blood sugars[,] to get his blood pressure checked[, and] to go over his cholesterol." PRU 483. During the visit he also complained of insomnia and reported "baseline fatigue." Id. The notes recount Hintz' s past medical history, describing that history as "significant for diabetes hyperlipidemia, coronary artery disease, status post bypass grafting." Id.; Pl. SOF 34. The doctor also stated that Hintz needed to get his blood sugars under control: "[T]his patient has promised he is going to exercise and watch his diet." PRU 483-84.
On November 18, 2003, Hintz saw Dr. Smith-Caillouiet again. Hintz came in for the visit because he "wanted his chemical stress test done. He wanted a colonoscopy set up, he is having trouble walking due to his right foot pain, [and] he wanted to see a cardiologist." PRU 486. Hintz also stated that he "want[ed] the requirements for early retirement. * * * [W]hen he is doing exercise at his rehab place * * * he starts coughing or like he will get some coughing and some tightness in his chest when the weather has certain temperature changes especially toward cold and wet." Id. Dr. Smith-Caillouet'sassessment and plan from the visit reads as follows:
1. Hypercholesterolemia. Tryglycerides are high despite Gemfibrozil and Lipitor combination. He is actually going to see a cardiologist as consult in December, Dr. Mokraoui and I will elicit Dr. Mokraoui [sic] expertise in cholesterol management to help me with this patient * * *. I think he clearly has coronary risk factor events and it would be nice to optimize these particular labs so that his risk factors would be lower.
2. His diabetes also puts him at risk for further cardiovascular event [sic] especially being uncontrolled. * * * Plan: He wants a dobutamine stress echo, I think that is a good idea although the patient is not having any coronary symptoms * * *.
PRU 486-87 (emphasis in original).
On December 16, 2003, Hintz saw Dr. Malec Mokraoui in order "to establish care and also determine what his long-term prognosis is." PRU 493. Dr. Mokraoui' s notes from the visit, in pertinent part, read as follows:
This gentleman underwent three vessel coronary bypass surgery in 1998. * * * This was done because of new onset angina at that time. He did reasonably well over the years. He underwent a dobutamine stress echo early this month which was nonischemic.*fn5 * * * REVIEW OF SYSTEMS: Cardiovascular: He currently denies any chest pain. He has mild shortness of breath (class I). One should note, however, that he leads a semi-sedentary lifestyle as he is traveling a lot. He has not been very compliant with his diet. He denies any PND or orthopnea. He is unaware of any palpitations. He denies claudication or swelling of his lower extremeties.
General: His major complaint is fatigue at the end of the day. * * * Pulmonary: Negative for wheezing, cough, sputnum production, or hemoptysis. CNS: No prior history of stroke, seizures, or headache.
Musculoskeletal: He suffers from pain in his feet which is possibly related to diabetic neuropathy. * * * He did undergo vascular studies on his lower extremities and no evidence of vascular disease was found. * * * PHYSICAL EXAMINATION: This is a pleasant gentleman in no obvious distress. * * * RECOMMENDATIONS: Mr. Hintz has documented coronary artery disease from which he is asymptomatic; however, he has not been managing his risk factors quite well. His blood pressure, diabetes, and lipid profile are under control.
The second issue is his lipid profile. He does have clearly combined hyperlipidemia. I have urged him to place himself on a low carbohydrate and low fat diet. * * * The third issue is his hypertension. Being a diabetic, his systolic blood pressure should be below 130. * * * I believe he sees Dr. Wilson for his diabetes which is not very well controlled. * * * I have encouraged him to remain physically active. I had a long discussion with him about risk factor modification and its importance. I urged him to modify his lifestyle and consider cutting down his traveling and exercise more. Since he is stable, I will see him on a yearly basis. PRU 493-96.
On February 10, 2004, Dr. Smith-Caillouet examined Hintz. Hintz went to the visit complaining of right calf discomfort that had started the previous month. The pain was described as starting in the back of his calf and then radiating "downward toward the lateral ankle." PRU 498. Activity seemed to intensify the symptoms. He reported no swelling, nor did the doctor detect "appreciable" swelling as between his two calves. During the visit, Hintz stated that "he walks a mile and a half several times a week as part of his cardiac rehab." PRU 498. "He reports his exercise has been taking longer and longer because he needs to stop and rest to make the pain go away in his right calf. He states he occasionally has some cramping in his feet."Id. Smith-Caillouet' s assessment states that he had right calf pain and claudication, which is pain and/or cramping in the lower leg due to inadequate blood flow to the muscles. Def. Resp. Pl. SOF ¶ 37 & n.14.
On April 5, 2004, Hintz saw another doctor-the name of the author is disputed by the parties although Defendant has not otherwise questioned the authenticity of the notes from the visit. The author of the notes states that Hintz was "seen in the collaborative service of Dr.*fn6
The notes from that date state that Hintz underwent an abnormal arterial study that revealed claudication in both legs, worse in the right leg than in the left. The examination was positive for leg pain with ambulation. Hintz was assessed with right lower extremity claudication with peripheral vascular disease, as well as coronary artery disease and hypertension. PRU 505-06.
On April 7, 2004, Hintz underwent an abdominal aortogram, oblique pelvic arteriogram, and bilateral lower extremity run-off angiogram. The procedure revealed infrapopliteal peripheral vascular disease and mild aortoiliac and infrainguinal disease. Pl. SOF ¶ 39; PRU 603.
On April 19, 2004, Hintz underwent right popliteal to perineal bypass. This type of procedure is used to bypass diseased blood vessels above or below the knee. Pl. SOF ¶ 40 & n.15.
On September 30, 2004, Hintz was seen by "sgd," who was, according to the medical notes, treating Hintz "in collaborative practice with Dr. Smith-Caillouet." PRU 521. Hintz came to the medical clinic reporting sudden rib pain brought on by coughing the night before. Pl. SOF ¶ 41; PRU 521. He did not report shortness of breath, chest pain, nausea or vomiting. However,
he was very uncomfortable with sitting to standing. PRU 521. On October 4, 2004, Dr. Smith-Caillouet again examined Hintz for coughing and rib pain. He was assessed with costochondritis, which is an inflammation of the cartilage that connects a rib to the breastbone. Pl. SOF ¶ 42 & n.16. He was prescribed two drugs for the condition. Dr. Smith Caillouiet' s plan for treatment, noting the prescribed drugs, states: "Hopefully that will give him enough relief that he can go on his trip, but if not he will stay home and let us know if it does not continue to improve over the next week." PRU 524.
On October 15, 2005, Hintz was examined at the Carle Clinic for continuing intermittent discomfort due to his ribs. The notes from the visit state that Hintz "[h]as been taking Darvocet [one of the two prescribed drugs] especially when he travels which is helpful in relieving the discomfort." PRU 526. The physical examination revealed "1 pitting edema in both of [Hintz' s] lower extremeties." PRU 526; Pl. SOF ¶ 43; Def. Resp. Pl. SOF ¶ 43. The treatment plan notes state that
[i]n regard to his diabetic meds he is just encouraged to stay more on his diet. He is on several medications for his diabetes that at this point will not be changed. He does report some dietary noncompliance. He travels frequently which makes it difficult to maintain his diet. In regards to his rib pain he is concerned about the left upper quadrant. We'll plan to ultrasound his upper abdomen and follow-up with him in a couple weeks * * *.
On October 25, 2004, Hintz visited Dr. Smith-Caillouet after having reported a fall from a stepladder. Pl. SOF ¶ 44. Dr. Smith-Caillouet' s notes read in pertinent part: The patient said that initially when he fell his leg hurt a little bit but it wasn' t swollen and then suddenly he got acute swelling of his leg[,] got worried and came here. When we saw him he had excoriations of his left leg, it measured out to be about 41 centimeters which was about twice the size of the right leg. The foot itself felt warm although I could not appreciate any dorsalis pedis or posterior tibial pulses. The actual tibia area looked white with again the red excoriations and some blood coming from that leg area and then a cold pack was placed on the patients [sic] leg while he was sitting here trying to reach his wife.
PRU 528. Dr. Smith-Caillouet sent Hintz to the emergency room. Pl. SOF ¶ 44.
On October 27, 2004, Dr. Smith-Caillouet saw Hintz for a follow-up after Hintz's emergency room visit. Pl. SOF ¶ 45. Hintz told Smith-Caillouet that he had followed the emergency room instructions regarding his leg injury but that the leg had gotten worse. The doctor' s notes state that when Smith-Caillouet saw Hinz on October 25, the circumference of Hintz' s leg was 41.5 centimeters. On October 27, the circumference was 45 centimeters and Hintz found it painful to walk. PRU 530. The leg had "lots of ecchymosis," which is skin discoloration caused by the escape of blood into the tissues from ruptured blood vessels. Pl. SOF ¶ 45 & n.19. Smith-Caillouet assessment stated that Hintz "may now have a venous clot in his legs." PRU 530. Smith-Caillouet' s plan was to "do arterial and venous doppler * * * the earliest my staff here could get him in." PRU 530.
On November 1, 2004, orthopedic specialist Dr. Paul F. Plattner examined Hintz. Pl. SOF ¶ 46. The exam revealed that Hintz "ha[d] ecchymosis involving the entire leg from the thigh to the toes. The toe ecchymosis came on after the fall several days ago, consistent with a hematoma that extravasated distally into the leg and foot with gravity." PRU 533. The notes continue:
On exam today reveals that he has a girth of 42 cm on the right calf vs 44.5 cm on the left. The calf is supple but swollen. It is not particularly painful. He has a good range of motion of the foot and ankle with no sign of compartment syndrome. There is some blistering over the skin of the pretibial area consistent with blistering from swelling.
PRU 533. Plattner' s assessment was for "hematoma of the left calf secondary to contusion." Id.
Plattner' s plan was to "continue with activity modifications and elevation * * *. Hopefully as time goes on this will improve and he will continue to improve." Id.
On November 1, 2004, Hintz visited Smith-Caillouet for multiple reasons, including for continued pain in his left lower extremity. Pl. SOF ¶ 47; PRU 535. The pain had "not gotten progressively worse" but instead "just stayed the same and never [got] any better." PRU 535. Dr. Smith-Caillouet examined Hintz' s leg and reviewed the results of Hintz's venous duplex. Smith-Caillouet stated that the venous duplex "was significant for hematoma."*fn7 PRU 536. Dr. Smith-Caillouet' s assessment included: left leg pain, cellulitis, diabetes mellitus, and insomnia.
PRU 536. "He was also given a referral to Dr. Plattner to evaluate the hematoma and drain it if needed." Id.
A November 5, 2004*fn8 , examination (the identity of the doctor, as with the September 30 visit, is noted as "sgd"), stated that
[Hintz] comes to the clinic today as a follow up. He reports that he did see Dr. Plattner who recommended that he have some physical therapy to help reduce the swelling in his leg. He has been seeing Physical Therapy. Today, he is concerned that his leg still looks pretty bad. There is no increase in pain. He is currently taking antibiotics.
PRU 538. The notes from the doctor' s examination state that Hintz had continued ecchymosis from his hip to his toes, but that it was beginning to lighten. "Circumference of his left calf measures [41.5] cm. [sic] which is down 2 cm. [sic] since we last checked his calf circumference." The doctor assessed Hintz with cellulitis and hematoma. Id.
On December 9, 2004, an echocardiogram revealed mild left ventricular hypertrophy and abnormal septal motion. Pl. SOF ¶ 48; PRU 623.
On January 6, 2005, Plaintiff saw Dr. Mokraoui for a yearly follow-up appointment. Def. Resp. Pl. SOF ¶ 53. Dr. Mokraoui's notes recount Hintz's April 2004 "right fem-pop bypass surgery" and state that he "has more or less recovered" (PRU 553). The notes continue:
He has some residual discomfort from his ankle in the medial malleolus up to his knee parallel to the incision line. This is despite the fact that the incision is well healed. He also apparently fell and injured his left leg a few weeks ago and sustained a hematoma in that calf. He underwent repeat vascular study in both lower extremeties and was found to have no significant vascular abnormalities. Otherwise, he has done reasonably well from a cardiac standpoint. He denies any chest pain or dyspnea. * * * RECOMMENDATIONS Although Mr. Hintz cardiac status is stable, he needs aggressive risk factor modification. * * * I also have advised him on a low carbohydrate diet. He will also need to have his blood pressure monitored closely; since he is diabetic, he needs to get his systolic down below 130 if not below 125. I encouraged him to restart his exercises in an attempt to lose some weight and improve his physical fitness. * * * I will see him in a year or earlier should he have any problems.
On May 25, 2005, Dr. Lynette Smith-Caillouet saw Hintz for his type II diabetes mellitus, to refill certain prescriptions, and for a complete physical examination. Pl. SOF ¶ 19*fn9 ; PRU 248. Dr. Smith-Caillouet' s notes laud Hintz:
I am so proud of this patient who I have had difficulty in the past getting his cholesterol and blood sugars under good control. He has actually done very very well for this patient and like I said I am very proud of him and I asked him to continue to do even better. He has a job where he travels a lot on the road and so dieting has been an issue in the past and he has been more stable at home lately and it looks like it has made a difference with regard to his overall status with regard to his cholesterol and blood sugars. He actually also has a past history of coronary artery disease. He is status post bypass grafting. He also had hurt his leg last year and that actually did heal. He fell off a ladder and his other past history includes peripheral vascular disease with Fem-Pop bypass grafting. * * * OBJECTIVE: * * * The cardiovascular exam is regular rate and rhythm. S1, S2, without any extra heart sounds or murmurs. The abdomen is soft, nontender, non distended. * * * Extremities are without clubbing, cyanosis, or edema. Neurologic exam is within normal limits. * * * No abnormalities are felt. The result of the evaluation is essentially unremarkable today. * * * PLAN: We will check a glycohemoglobin on him in three months. We will do it in August 2005 * * * [A]lso the patient has hypercholesterolemia. His cholesterol looks great today at 157 with normal liver function tests so in six months, which will be November of 2005, we will recheck a lipid panel, liver function test and for now we will keep the Lipitor and the Gemfibrozil at their current doses. He has peripheral vascular disease and is scheduled for an arterial Doppler in June 2005 and I will await those results.
On June 20, 2005, Hintz had an arterial Doppler study. Pl. SOF ¶ 49.*fn10 The study revealed an absence of Doppler signals in the right dorsalis pedis and left posterior tibial artery, both of which were presumed occluded. Id.; PRU 621. Then, on June 28, 2005, Hintz visited Dr. Timothy L. Connelly. Pl. SOF ¶ 20. Dr. Connelly's note from that day states:
Patient had a recent Doppler study showing a patent right popliteal perineal vein graft. His Doppler studies are basically unchanged.
He can walk about a mile and a half without difficulty and overall is doing well. He complains of soreness in his feet, which awakens him at night. It is unclear whether this is truly neuropathy or not. It certainly is not rest pain. He tried Neurontin for several months and it did not help. This makes me think that it is not neuropathy.
We will plan to see him back in six months with a Doppler and duplex.
C. Hintz's Post-Termination Medical History
On December 12, 2005, a little more than four months after Hintz's termination, Hintz underwent an arterial Doppler as a follow-up to his right popliteal-to-peroneal bypass graft. PRU 610. The Doppler study revealed patent right popliteal-to-peroneal bypass graft and indications of infrapopliteal disease. Pl. SOF 51*fn11 .
On December 20, 2005, Hintz saw Dr. Timothy L. Connelly and reported that he had been experiencing chest discomfort after walking for eight minutes on a treadmill. After noting Hintz' s report regarding chest pains, Dr. Connelly's notes state the following: This is a new situation for him, whereas he was walking about a mile or so before without difficulty. His legs are clinically stable. His duplex study showed a patent graft in his right leg and a stable arterial situation. He is due to see Dr. Smith-Caillouet on Friday and has already had a stress test scheduled, but it ...