582 F.3d 738 (7th Cir. 2009), 07-3550, Black v. Long Term Disability Ins.

Docket Nº:07-3550.
Citation:582 F.3d 738
Opinion Judge:WILLIAMS, Circuit Judge.
Party Name:Elizabeth BLACK, Plaintiff-Appellant, v. LONG TERM DISABILITY INSURANCE, sponsored by Milwaukee World Festival, Inc. as plan administrator, Defendant-Appellee.
Attorney:Mark D. Debofsky (argued), Daley, Debofsky & Bryant, Chicago, IL, Janice A. Rhodes, Kravit, Hovel, Krawczyk & Leverson, Milwaukee, WI, for Plaintiff-Appellant. M. Christine Cowles, Quarles & Brady, Milwaukee, WI, Michael J. Smith, W. Sebastian Von Schleicher (argued), Smith, Von Schleicher & Asso...
Judge Panel:Before EVANS, WILLIAMS, and TINDER, Circuit Judges.
Case Date:September 18, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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582 F.3d 738 (7th Cir. 2009)

Elizabeth BLACK, Plaintiff-Appellant,


LONG TERM DISABILITY INSURANCE, sponsored by Milwaukee World Festival, Inc. as plan administrator, Defendant-Appellee.

No. 07-3550.

United States Court of Appeals, Seventh Circuit.

September 18, 2009

Argued May 28, 2009.

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[Copyrighted Material Omitted]

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Mark D. Debofsky (argued), Daley, Debofsky & Bryant, Chicago, IL, Janice A. Rhodes, Kravit, Hovel, Krawczyk & Leverson, Milwaukee, WI, for Plaintiff-Appellant.

M. Christine Cowles, Quarles & Brady, Milwaukee, WI, Michael J. Smith, W. Sebastian Von Schleicher (argued), Smith, Von Schleicher & Associates, Chicago, IL, for Defendant-Appellee.

Before EVANS, WILLIAMS, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge.

For many years Elizabeth Black served as executive director of Milwaukee World Festival, Inc. (" MWF" ), the organization that operates Summerfest, an annual 11-day music festival in Milwaukee, Wisconsin. As a benefit of her employment with MWF, Black received long-term disability insurance coverage under an insurance plan (" the Plan" ) that is underwritten and administered by Standard Insurance Company. In August 2003, Black informed MWF's president that she was disabled and could no longer work due to multiple aortic aneurysms and high blood pressure. She applied for long-term disability benefits, but Standard denied her claim and her later appeal. Black filed this suit in the district court under the Employee Retirement Income Security Act of 1974 (" ERISA" ), see 29 U.S.C. § 1132(a)(1)(B), and both parties moved for summary judgment. Applying the arbitrary and capricious standard of review, the district court affirmed Standard's denial of benefits.

Black appeals, arguing, first, that we should review Standard's denial of benefits de novo and, second, that even under a deferential review, Standard abused its discretion by ignoring evidence and unreasonably deferring to its own consulting physicians rather than Black's treating physicians. The Plan's language, however, unambiguously grants Standard discretion in its benefits determinations. Our review,

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therefore, is under the deferential arbitrary and capricious standard. Because Standard permissibly credited five consulting physicians who each concluded that Black's condition is not disabling, we conclude that Standard's decision is rationally supported by the record, and we affirm the judgment of the district court.


At the age of 55, Black was diagnosed with multiple aortic aneurysms, which are weakened and bulging areas in the aorta, the body's main supplier of blood. See MayoClinic.com, " Aortic Aneurysm," http:// www. mayo clinic.com/health/aortic-aneurysm/DS00017. Black underwent surgery at the Cleveland Clinic in March 2001 to repair aneurysms of the ascending aorta and aortic arch. Her doctor recommended that she attempt to medically manage a third aneurysm, located in the descending aorta. Black returned to work six weeks after surgery, and by the summer of 2001, she had, by her own account, " recovered well enough to run the festival to a record year." Dr. Brian Griffin of the Cleveland Clinic continued to monitor Black's remaining aneurysm, while her local cardiologist, Dr. David Slosky, monitored her blood pressure and hypertension.

After Summerfest 2001, Black sought a renewal of her employment contract for an additional five-year term to begin after her contract expired on December 31, 2003. MWF, however, deferred consideration of Black's contract until 2002. And by the end of 2002-in the midst of contract negotiations-Black's relationships with her co-workers had become strained, and she accused them of harassment and verbal abuse. In December 2002, Black sent a letter to counsel for MWF, detailing her complaints and reiterating her desire for a new contract. In that letter Black stated that she had a possibly life-threatening illness that allowed her " to be fully functional at this time, but which is reactive to stress, not the day-to-day operational kind, but the unnecessary stress that comes from degrading, disparaging and harassing conduct."

Black also solicited letters from her treating physicians for use in her contract negotiations. In a letter addressed to Black's attorney in November 2002, Dr. Griffin wrote that Black " has significant hypertensive problems ... it is vital that her blood pressure be well controlled. Stress, particularly in the form of verbal abuse, is very deleterious for her blood pressure control." In a similar letter sent in December 2002, Dr. Slosky wrote that Black " has significant hypertension ... [h]er blood pressure is quite labile and reactive to stressful conditions. It is particularly sensitive to acute and direct confrontation.... The patient should not be subject to harassment of this kind." Finally, Dr. Eric Maas, Black's treating neurologist, also wrote a letter, stating that " any undue stress should be minimized given [Black's] medical history particularly with regard to hypertension and her vascular disease." He explained that Black " had been undergoing a great deal of stress stemming from her responsibilities as Director of Summerfest in Milwaukee and her contract negotiations," and he requested " that these factors be taken into account in planning these negotiations with Elizabeth."

Six months later, in July 2003, the personnel committee of MWF's board of directors voted not to renew Black's contract. On August 6, 2003, Black initiated a disability claim with Standard. In a letter to MWF's board of directors, Black stated that her medical condition prevented her from performing her duties as executive director, that her doctors had advised her that she was disabled and could no longer work, and that her condition had been

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aggravated by her job activities and job-related stress.

In reviewing her claim, Standard obtained medical records from Black's treating physicians, Drs. Griffin and Slosky, as well as her psychiatrist, Dr. Michael Deeken. Dr. Griffin monitored Black's descending aorta biannually after her surgery in 2001. Black's MRI scans showed that immediately after surgery, her descending aorta measured 4.7 cm in diameter. In May 2002, the size had increased to 5.0 cm but remained stable and unchanged as of September 2003. Dr. Griffin completed Standard's " Attending Physician Statement" in which he reported that on September 9, 2003, he advised Black to stop working because of her poor blood pressure control and severe stress. In a separate letter to Standard, he wrote that " given the nature of her current position ... she is unable to adequately maintain a normal blood pressure." He further stated that Black should " avoid any stressful managerial type position ... or work that requires her to be under media scrutiny or where she needs to meet time deadlines."

Dr. Slosky saw Black approximately once a year to monitor her blood pressure, and in August 2001 his records reflected that Black reported no fatigue and her cardiac status was stable except for " poorly controlled hypertension." In July 2002, Black again reported no fatigue and was " asymptomatic," with a blood pressure reading reflecting mild hypertension. In July 2003, one month before her disability claim, Black's blood pressure was normal; she reported no fatigue; and Dr. Slosky concluded, " [f]rom a cardiac standpoint, I feel that we finally achieved some stability, however, I have recommended that she make an attempt to further decrease the stress in her life, as that would help in decreasing the lability of her blood pressure." Two months later, however, in a statement to Standard, Dr. Slosky wrote that Black should cease working due to poor blood pressure control and the " potential for aneurysm enlargement/dissection." Dr. Deeken reported that he had been treating Black since 1990 for generalized anxiety disorder, and as of February 2004, Black had a diagnosis of depressive disorder, which was in remission, and generalized anxiety disorder.

Black also submitted evidence that the Social Security Administration (" SSA" ) had approved her application for disability benefits. The SSA found Black disabled as of August 7, 2003, with a primary diagnosis of aortic aneurysm and a secondary diagnosis of anxiety disorders. Black was also found disabled by the Paul Revere Life Insurance Company, with which she had additional coverage.

After reviewing this evidence, Standard denied Black's claim, finding that she did not meet the Plan's definition of disabled.1 Black filed an administrative appeal with Standard, submitting additional evidence and claiming fatigue and psychological and cognitive impairment as additional grounds for disability. Included in her additional evidence was a neuropsychological evaluation conducted in August 2004 by Dr. Thomas Hammeke, who found that Black performed at an average-to-superior level in tests of intellectual and executive functioning but displayed mild skill deficits and concentration problems. That same

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month Dr. Maas noted that Black had reported recent memory problems. Black also submitted letters from her family and friends stating that she had suffered extreme fatigue and cognitive impairment since her surgery in 2001. Finally, Black presented an assessment by a vocational expert who concluded that, based on her physical limitations and the duties of her position, she could no longer perform her job.

Standard consulted four board certified physicians and one board certified psychiatrist who each reviewed Black's medical records and other evidence submitted by both Black and MWF. All five consulting physicians concluded that Black's medical condition did not prevent her from...

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