Appeals from the United States District Court for the Eastern District of Wisconsin. No. 1:09-cv-01017-WCG-William C. Griesbach, Judge.
The opinion of the court was delivered by: Lefkow, District Judge.
Before ROVNER and HAMILTON, Circuit Judges, and LEFKOW, District Judge.*fn1
After being diagnosed with fibromyalgia, chronic pain, anxiety, and depression, Susie Weitzenkamp was awarded long-term disability benefits under an employee benefit plan ("the plan") issued and administered by Unum Life Insurance Company ("Unum"). Benefits were discontinued a little more than twenty-four months later, when Unum deter-mined that Weitzenkamp had received all to which she was entitled under the plan's self-reported symptoms limitation. Because Weitzenkamp had retroactively received social security benefits, Unum also sought to recoup equivalent overpayments as provided by the plan. On appeal, Weitzenkamp challenges the application of the self-reported symptoms limitation to her case and argues that Unum's claim for overpayment is barred because the Social Security Act prohibits attachment or garnishment of social security payments. On July 11, 2011, we issued an opinion affirming in part and reversing in part. Unum filed a petition for panel rehearing, and we requested an answer, which was filed. By separate order we granted the petition and vacated the original opinion and final judgment. For the reasons that follow, we reverse the district court's judgment as to Unum's application of the self-reported symptoms limitations and affirm as to the social security overpayment claim.
Weitzenkamp worked at Time Warner Cable Inc. as a sales representative. Weitzenkamp participated in the plan, which is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001 et seq., and administered by Unum. The plan gives Unum discretion to determine eligibility and to interpret the plan's terms. A participant who is limited from performing the material and substantial duties of her regular position due to sickness or injury that results in a twenty percent or more loss in indexed monthly earnings is entitled to long-term benefits. After twenty-four months of payments, the disability determination is revisited, with the criterion changing from being unable to perform one's own occupation to being unable to perform any occupation. As long as a participant meets the "any occupation" standard, benefits continue until she is no longer disabled or has reached the maximum period of payment, which, for someone like Weitzenkamp who was under sixty at the onset of her disability, is to age sixty-five. One significant and relevant limitation exists, however, as benefits cease after twenty-four months for those with "[d]isabilities, due to sickness or injury, which are primarily based on self-reported symptoms, and disabilities due to mental illness, alcoholism or drug abuse." Self-reported symptoms are "the manifestations of your condition which you tell your doctor that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine." The plan provides a non-exhaustive list of self-reported symptoms: "headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy."
As required under ERISA, Unum provided Weitzenkamp and others covered by the plan with a summary plan description ("SPD"). The SPD states that "[p]ayments for disabilities other than those attributable to mental illness or substance abuse may continue until the earlier of the date you recover or the date shown on the schedule." The twenty-four month limitation for disa-*fn2 bilities due to mental illness and substance abuse is reiterated two more times in the SPD. No mention is made, however, of the self-reported symptoms limitation.
On December 13, 2005, after a viral illness, Weitzenkamp's physician certified that she was unable to work. She continued to suffer from ongoing pain and fatigue and was eventually diagnosed with fibromyalgia, chronic pain, anxiety, and depression. After exhausting her short-term disability benefits, Weitzenkamp sought long-term disability benefits. Unum approved Weitzenkamp's request on July 25, 2006, retro-active to June 12, 2006, under a reservation of rights. The approval letter included language from the plan on what was considered a disability but did not mention the self-reported symptoms limitation. Unum removed its reservation of rights on January 29, 2007, but also invoked the self-reported symptoms and mental illness limitations, indicating it would pay benefits until June 11, 2008 unless other conditions arose to which the limitation did not apply.
Unum required Weitzenkamp to apply for social security benefits. She was awarded social security disability benefits in September 2007 based on a primary diagnosis of affective disorder and a secondary diagnosis of muscle and ligament disorders due to fibromyalgia. The award was retroactive to December 13, 2005. As provided in the plan, Unum reduced Weitzenkamp's monthly benefit accordingly. As Unum also had reserved the right to recover any overpayments that resulted from a participant's retroactive receipt of social security benefits, it requested that Weitzenkamp reimburse it for this amount. Some of this overpayment was recovered, but a balance of $9,089 remains.
In 2008, Unum reviewed Weitzenkamp's medical records to determine whether she remained eligible to receive benefits. Weitzenkamp's treating rheumatologist,*fn3 Dr. Kent Partain, submitted a fibromyalgia assessment form, indicating that Weitzenkamp met the criteria for fibromyalgia, including the presence of multiple tender points. Dr. Partain identified Weitzenkamp's symptoms as chronic pain, non-restorative sleep, muscle weakness, morning stiffness, subjective swelling, frequent, severe headaches, numbness and tingling, chronic fatigue, Raynaud's phenomenon, irritable bowel syndrome, depression, and carpal tunnel syndrome. Weitzenkamp was said to have constant pain in all areas of her body. He also indicated that Weitzenkamp had a disc protusion and moderate cervical spondylosis. Dr. Partain concluded that "[d]espite interventions by neurology, psychiatry, psychology, neuropsychology, orthopedics, physiatry, integrative medicine, [and a] pain program with multiple interventions from these services, [Weitzenkamp] remains unable to work."
Dr. Daniel Krell, one of Unum's medical consultants, reviewed Weitzenkamp's records and concluded that, although she had no reliable, sustainable functional capacity, no documented findings of a physical condition existed to explain her symptoms. He also opined that Weitzenkamp was overstating her symptoms based on her having consistently indicated that her pain levels were between eight and ten on a ten-point scale. Dr. Krell's opinion was then reviewed by Dr. Gary Greenhood, another Unum medical consultant. Dr. Greenhood disagreed with Dr. Krell's assessment that Weitzenkamp's condition was not documented but concluded that the pain keeping her from working was a self-reported symptom of fibromyalgia. Dr. Greenhood noted that several verifiable and reproducible findings consistent with pain existed: two x-rays indicated mild degenerative change in Weitzenkamp's right hip and two MRIs showed moderate cervical spondylosis and a disc protrusion with an annular tear and a mild disc bulge. Because Dr. Partain's evaluation of Weitzenkamp did not reference degenerative findings of the hips or cervical or lumbar spines, Dr. Greenhood concluded that Weitzenkamp's pain was not due to these verified findings but rather to fibromyalgia. Based on these reports, portions of which were reproduced word for word in its letter to Weitzenkamp, Unum discontinued Weitzenkamp's benefits based on the self-reported symptoms and mental illness limitations on August 22, 2008. It acknowledged that Weitzenkamp was receiving social security benefits but indicated that the plan's limitations, which differed from social security standards for disability determinations, precluded her from receiving further plan benefits.
Weitzenkamp appealed through the designated appeal process. She submitted an additional letter from Dr. Partain, in which he stated that his diagnosis of fibromyalgia rested on "a history and physical examination consistent with this condition plus ruling out other conditions that can mimic fibromyalgia syndrome with various laboratory testing that was done." He indicated that Weitzenkamp qualified as having "the typical 11 or more out of 18 tender points" even though some authorities did not believe that it was necessary to have eleven tender points to be diagnosed with fibromyalgia. Unum referred Weitzenkamp's appeal to Dr. Norman Bress, a rheumatologist, for further review. Dr. Bress indicated that Weitzenkamp met the criteria for fibromyalgia but highlighted that there was no evidence in the record that she had been examined for control points "in order to determine the reliability and specificity of the tender point exam." He noted that the majority of patients with fibromyalgia could work full time and that Weitzenkamp had done so for many years prior to her date of disability even though she had symptoms prior to that date. He also indicated that Weitzenkamp's condition was based on self-reported symptoms, as even tender points "are based on the patient's response to the examiner's palpation."
Dr. Bress concluded that Weitzenkamp's claimed limitations were not supported by her fibromyalgia-related symptoms. After accounting for Dr. Bress's conclusions, Unum affirmed its decision on June 18, 2009. In its letter of explanation, Unum did not dispute Weitzenkamp's diagnosis of fibromyalgia but instead emphasized that Weitzenkamp's pain, being the primary symptom associated with her fibromyalgia, was based on self-report. As such, benefits were limited to twenty-four months by the self-reported symptoms limitation.
Weitzenkamp then filed this lawsuit. Unum counter-claimed, seeking recoupment of the overpayment created by Weitzenkamp's retroactive receipt of social security benefits. Both parties moved for summary judgment. The district court found that to the extent Unum's discontinuation of benefits was based on a finding that she was not disabled, that decision was arbitrary and capricious. But the district court upheld Unum's application of the self-reported symptoms limitation. It also concluded that Unum is entitled to $9,089 as a result of its overpayment of benefits. Weitzenkamp now appeals. Unum filed a conditional cross-appeal ...