615 F.3d 758 (7th Cir. 2010), 09-2173, Holmstrom v. Metropolitan Life Ins. Co.

Docket Nº:09-2173.
Citation:615 F.3d 758
Opinion Judge:HAMILTON, Circuit Judge.
Party Name:Lanette HOLMSTROM, Plaintiff-Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, et al., Defendants-Appellees.
Attorney:Mark D. DeBofsky, Attorney (argued), Daley, DeBofsky & Bryant, Chicago, IL, for Plaintiff-Appellant. Michael J. Smith, Attorney, W. Sebastian von Schleicher, Attorney (argued), Smith, von Schleicher & Associates, Chicago, IL, for Defendants-Appellees.
Judge Panel:Before KANNE, WOOD, and HAMILTON, Circuit Judges.
Case Date:August 04, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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615 F.3d 758 (7th Cir. 2010)

Lanette HOLMSTROM, Plaintiff-Appellant,



No. 09-2173.

United States Court of Appeals, Seventh Circuit.

August 4, 2010

Argued Feb. 11, 2010.

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[Copyrighted Material Omitted]

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Mark D. DeBofsky, Attorney (argued), Daley, DeBofsky & Bryant, Chicago, IL, for Plaintiff-Appellant.

Michael J. Smith, Attorney, W. Sebastian von Schleicher, Attorney (argued), Smith, von Schleicher & Associates, Chicago, IL, for Defendants-Appellees.

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Before KANNE, WOOD, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This case illustrates the difficult problems presented by claims for disability insurance by people with serious and painful conditions that do not have objectively measurable symptoms. Plaintiff Lanette Holmstrom worked as a senior training specialist at a large credit management company. She participated in an employee welfare benefit plan administered by defendant Metropolitan Life Insurance Company (" MetLife" ). Holmstrom stopped working in January 2000 when she developed a painful nerve condition in her right arm. MetLife began paying disability benefits under an " own-occupation" standard. Three surgeries failed to remedy the condition, and Holmstrom was diagnosed with complex regional pain syndrome (" CRPS" ).

After Holmstrom's " own-occupation" benefits expired, she submitted a disability claim under the more stringent " any-occupation" definition that applied to longer-term benefits. MetLife approved that claim in July 2002 and began paying benefits. MetLife performed a periodic review in 2005. It determined then that Holmstrom was no longer disabled and terminated her benefits. After MetLife upheld its decision on administrative appeal (Holmstrom's final administrative remedy), Holmstrom filed suit in federal court under the Employee Retirement Income Security Act of 1974 (" ERISA" ). See 29 U.S.C. § 1132(a)(1)(B). Holmstrom voluntarily dismissed the action when MetLife offered a second administrative appeal, which yielded the same result. Holmstrom then returned to federal court, filing this second ERISA action to recover benefits. MetLife counterclaimed to obtain a setoff based on disability insurance benefit payments that Holmstrom received from the Social Security Administration. In a careful opinion describing the case as a close one, even under the deferential standard of review, the district court granted summary judgment for MetLife on Holmstrom's claim for benefits and MetLife's counterclaim. Holmstrom v. Metropolitan Life Ins. Co., 615 F.Supp.2d 722 (N.D.Ill.2009). Holmstrom appealed.

We respectfully disagree with the district court. We believe that MetLife and in turn the district court gave undue weight to the absence of objective measurements for Holmstrom's impairment. There is ample corroboration that her pain has been genuinely disabling. We also find that MetLife's selective use of evidence and its repeated moving of the targets for the evidence of disability show that MetLife's decision to terminate benefits was arbitrary and capricious. We reverse and order retroactive reinstatement of benefits for Holmstrom, subject to the set-off for Social Security disability insurance benefits she has received. We leave the issues of attorney fees and prejudgment interest to the district court in the first instance.

I. The Facts

We take the facts from the administrative record compiled by MetLife in considering Holmstrom's claim. Holmstrom was employed as a senior training specialist at Experian Information Solutions, Inc. Through this employment, she participated in a group disability insurance plan underwritten and administered by MetLife.

In late 1999, Holmstrom sought the care of Dr. Eric Lomax to treat pain, numbness, and tingling she experienced in her right upper arm. In January 2000, Holmstrom had surgery to remedy a right ulnar nerve compression and neuropathy. The surgery provided little relief, and her

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symptoms soon worsened. In June 2000, she had another surgery to relieve what was thought to be nerve compression. Her symptoms worsened further after this second procedure, prompting her to visit a pain clinic. The clinic doctors diagnosed CRPS Type I, a chronic neurological syndrome characterized by severe pain.1

In March 2002, Holmstrom underwent a third surgery, which also failed to relieve her symptoms. She saw another pain specialist, Dr. Weber. According to MetLife's records, Dr. Weber " made a definitive diagnosis of ... complex regional pain syndrome." It was clear to Holmstrom and her doctors that surgery could do nothing to help her, leaving medication as her only recourse. 2 Holmstrom's pain medication regimen has included a variety of powerful drugs, including Amitriptyline, Bextra, Clonidine, methadone, MS Contin, MSIR, Neurontin, Oxycontin, Oxycodone, Oxyfast, Percocet, Topamax, and (prior to its recall) Vioxx. 3

Holmstrom's symptoms persisted without improvement for the next three years. MetLife's records from describe a " high pain med[ication] regimen" causing side effects such as confusion and memory loss, and pain of such intensity that Holmstrom was " considering having nerve severed since all other kinds of pain management techniques have failed." The record reveals no improvement through 2004 and 2005. Dr. Ted Vant, who has been Holmstrom's treating physician from to the time of this lawsuit, prescribed significant doses of strong medications in an attempt to manage her symptoms.

In early 2000, MetLife approved short-term disability benefits under the plan. After the plan's short-term benefits expired, MetLife found that Holmstrom was still unable to perform her previous job duties, and it approved long-term disability benefits under the plan's " own-occupation" definition. Under the terms of the plan, those benefits expired after 24 months, at which point Holmstrom was required to establish that she was unable to perform the duties of any occupation. Upon the expiration of her " own-occupation" benefits, Holmstrom submitted an " any-occupation" disability claim. MetLife initially denied her claim, but after Holmstrom submitted additional medical evidence, MetLife reversed its decision and approved benefits in July 2002.

At some point during the claim administration, MetLife referred Holmstrom to a

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service that it retained to help beneficiaries apply for Social Security disability insurance benefits. Holmstrom applied for and qualified to receive these benefits under the Social Security Act.

In August 2005, MetLife performed a periodic review of Holmstrom's benefits and decided to terminate payments to her. The letter announcing the termination indicated that Dr. Thomas, retained by MetLife to perform the review, " determined that there is no medical information to support the restrictions provided by Dr. Vant," Holmstrom's treating physician. The letter added that " medical information no longer supports a severity in your impairment preventing you from doing your [previous] job." The letter told Holmstrom that she could appeal the decision by providing " office notes, physical exam findings, EMG results, MRI results, pain management notes, neurology notes, and/or physical therapy notes."

Holmstrom appealed and provided to MetLife: (1) an August 2005 Functional Capacity Evaluation (" FCE" ) performed by a physical therapist; (2) a June 2005 Attending Physician Statement completed by Dr. Vant; (3) Dr. Vant's examination notes from July 6, 2004 to July 20, 2005; (4) the results of an August 2004 nuclear bone scan (x-ray images and the analysis of Dr. Kenneth Sato); (5) the results of a May 2005 EMG nerve conduction test (numerical data, graphs, and the analysis of Dr. Gary Klein); (6) the Social Security Administration notice of award; and (7) letters from three family members.

The August 2005 FCE was only one page long and included very little testing of Holmstrom's arm, but it noted that she was " unable to [support any body] weight on hands due to pain" Dr. Vant's detailed, four-page statement included the CRPS diagnosis and concluded that Holmstrom suffered from a " permanent disability" and could perform essentially no hand function. Dr. Vant's examination notes included prescriptions for pain medications such as Amitriptyline, Clonidine, Elavil, Hydrocodone, and " large dose[s]" of methadone. He noted " no real changes," " continue[d] sweating" and " spasm," and said that Holmstrom was " still feeling numb." Dr. Sato's bone scan analysis stated that there was normal blood flow to the arm and that " no abnormalities of either arm, hand or wrist are seen." Dr. Klein's EMG was " negative" in that it " rule[d] out nerve entrapment syndrome", the malady that Holmstrom's doctors had thought she suffered from before her surgeries. Dr. Klein found a " minor" irregularity in the nerves of her forearm and dysesthesia around the right elbow. He otherwise found her nerves to be " absolutely normal" and her " sensory responses [to be] within normal limits," and he noted that her " power is normal [and] [r]eflexes are well preserved." However, regarding her general condition, Dr. Klein stated that " her pain and dysesthesia continue and if anything, are slowly getting worse." The family testimonials described in detail how Holmstrom's condition affected her everyday life and the lives of those around her, including descriptions of her significant pain, physical deficiencies, and compromised mental function from pain medication. The Social Security notice of award stated only that the government had concluded that Holmstrom was totally disabled under its stringent standards.4

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MetLife denied...

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