Kennedy v. Lilly Extended Disability Plan

• Decision Date: 18 May 2017
• Docket Number: No. 16-2314,16-2314
• Citation: 856 F.3d 1136
• Parties: Cathleen KENNEDY, Plaintiff-Appellee, v. The LILLY EXTENDED DISABILITY PLAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

856 F.3d 1136

Cathleen KENNEDY, Plaintiff-Appellee,

v.The LILLY EXTENDED DISABILITY PLAN, Defendant-Appellant.

No. 16-2314

United States Court of Appeals, Seventh Circuit.

Argued March 30, 2017

Decided May 18, 2017

Mark D. DeBofsky, Attorney, DEBOFSKY & ASSOCIATES, P.C., Chicago, IL, Bridget L. O'Ryan, Attorney, O'RYAN LAW FIRM, Indianapolis, IN, for Plaintiff-Appellee.

Ellen E. Boshkoff, Philip J. Gutwein, II, Brian James Paul, Daniel Pulliam, Attorneys, FAEGRE BAKER DANIELS LLP, Indianapolis, IN, for Defendant-Appellant.

Before Posner, Manion, and Hamilton, Circuit Judges.

Posner, Circuit Judge.

This case is about fibromyalgia, "a common and chronic disorder characterized by widespread pain, diffuse tenderness, and a number of other symptoms. The word ‘fibromyalgia ’ comes from the Latin term for fibrous tissue (fibro ) and the Greek [terms] for muscle (myo ) and pain (algia ). ... [F]ibromyalgia can cause significant pain and fatigue, and it can interfere with a person's ability to carry on daily activities. ... Scientists estimate that fibromyalgia affects 5 million Americans age 18 or older." National Institute of Arthritis and Musculoskeletal and Skin Diseases, "Questions and Answers about Fibromyalgia," July 2014, www.niams.nih.gov/Health_Info/Fibromyalgia /default.asp (visited May 16, 2017, as were the other websites cited in this opinion). " ‘Chronic’ means that the pain lasts a long time—at least 3 months or longer. Many people experience fibromyalgia pain for years before being diagnosed. ‘Widespread’ means that it is felt all over, in both the upper and lower parts of the body. However, many people with fibromyalgia feel their pain in specific areas of their body, such as in their shoulder or neck. And ‘Tenderness' means that even a small amount of pressure can cause a lot of pain." Lyrica , "Fibromyalgia [Frequently Asked Questions]," www.lyrica.com/frequently-asked-questions #fibromyalgia.

As further explained by the Mayo Clinic, "Fibromyalgia is a disorder characterized by widespread musculoskeletal pain accompanied by fatigue, sleep, memory and mood issues. Researchers believe that fibromyalgia amplifies painful sensations by affecting the way your brain processes pain signals. Symptoms sometimes begin after a physical trauma, surgery, infection or significant psychological stress. In other cases, symptoms gradually accumulate over time with no single triggering event. Women are much more likely to develop fibromyalgia than are men. Many people who have fibromyalgia also have tension headaches, temporomandibular joint (TMJ) disorders, irritable bowel syndrome, anxiety and depression." Mayo Clinic, "Fibromyalgia," www.mayoclinic.org/diseases-conditions/ fibromyalgia /home/ovc-20317786 (emphasis added).

There used to be considerable skepticism that fibromyalgia was a real disease. No more. See, besides the websites already cited, Anne Underwood, "The Long Search for Fibromyalgia Support," New York Times , Sept. 23, 2009, www.nytimes.com/ref/health/healthguide/esn-fibromyalgiaess.html; and Valencia Higuera, "Fibromyalgia: Real or Imagined?," Healthline Newsletter , Aug. 17, 2016, www.healthline.com/health/fibromyalgia-real-or-imagined.

And finally the American College of Rheumatology offers the following harrowing description of the disease: "Fibromyalgia is a neurologic chronic health condition that causes pain all over the body and other symptoms. Other symptoms of fibromyalgia that patients most often have are: Tenderness to touch or pressure affecting muscles and sometimes joints or even the skin. Severe fatigue. Sleep problems (waking up unrefreshed). Problems with memory or thinking clearly. Some patients also may have: Depression or anxiety. Migraine or tension headaches. Digestive problems: irritable bowel syndrome (commonly called IBS) or gastroesophageal reflux disease (often referred to as GERD). Irritable or overactive bladder. Pelvic pain. Temporomandibular disorder—often called TMJ (a set of symptoms including face or jaw pain, jaw clicking, and ringing in the ears)." American College of Rheumatology, "Fibromyalgia," www.rheumatology.org/I-Am-A/Patient-Caregiver/Diseases-Conditions/ Fibromyalgia.

Eli Lilly and Company is a global pharmaceutical corporation headquartered in Indianapolis. And it is familiar with fibromyalgia because it markets a drug called Cymbalta (a trade name for Duloxetine ) for treating the disease. It has retained an expert on fibromyalgia, Dr. Daniel Clauw of the University of Michigan, a physician and professor of rheumatology, to advise it on the disease, and he has pointed out that many persons afflicted with fibromyalgia"end up needing to stop working because of this condition" and that the disease "is not only very common but is typically also very disabling."

So much for background; now for the case:

Cathleen Kennedy, the plaintiff, was hired by Lilly in 1982 and rose rapidly, eventually becoming an executive director in the company's human resources division, with a monthly salary of $25,011. But at the beginning of 2008 she was forced to quit work because of disabling symptoms of fibromyalgia. As a participant in the company's Extended Disability Benefits plan, she requested benefits upon ceasing to work, and effective May 1, 2009, was approved for monthly benefits of $18,972.44. Three and a half years later, however, her benefits were terminated, precipitating this suit by her against Lilly's self-funded Extended Disability Plan based on the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq. , which so far as pertains to this case sets minimum standards for voluntarily established health and pension plans in private industry. See Metropolitan Life Insurance Co. v. Glenn , 554 U.S. 105, 115, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). Lilly's disability plan has discretion to deny claims that it deems not to meet its standard, but a reviewing court will overturn a denial of benefits if the plan's decision is unreasonable. Edwards v. Briggs & Stratton Retirement Plan , 639 F.3d 355, 360 (7th Cir. 2011).

The plan states that an employee has a "disability" if unable "to engage, for remuneration or profit, in any occupation commensurate with the Employee's education, training, and experience." Kennedy's benefits were revoked by Lilly's Employee Benefits Committee (the administrator of the plan), on the ground that her fibromyalgia was not disabling.

The district judge granted summary judgment in favor of Ms. Kennedy and awarded her $537,843.81 in past benefits (benefits she should have received but did not) and pre-judgment interest, and in addition the judge ordered Lilly to reinstate Kennedy's disability benefits retroactive to December 2012 and resume the payment of her monthly benefits. Lilly based its unsuccessful case in the district court on evidence presented by a number of doctors (oddly not including Dr. Clauw), but the evidence turned out to be a hodge-podge. For example, Lilly sent Kennedy to be examined by a Dr. Schriber in Dayton, Ohio, more than 100 miles from Kennedy's home in Indianapolis. The doctor conducted a physical exam of her that lasted all of five minutes. He testified that the "American College of Rheumatology does not consider fibromyalgia to be disabling on a long-term basis." That, as we know from our earlier quotation from the ACR is false; and Lilly itself appears not to have relied on Dr. Schriber's opinion in its decision to terminate Kennedy's benefits.

A psychiatrist named Dr. Osman advised Lilly that Kennedy "from a psychiatric standpoint ... has no restrictions or limitations," but based this on her having been diagnosed with Major Depressive Disorder and Anxiety Disorder rather than with fibromyalgia, a disease about which as a psychiatrist he could not be expected to offer an authoritative opinion; apparently he offered no opinion. Another psychiatrist, Dr. Goldman, opined similarly. And a urologist, Dr. Davi, after reviewing Kennedy's medical records, told Lilly that she was not disabled from working "from a urology perspective," which Kennedy does not dispute and in any event seems irrelevant.

Kennedy's general internist, Dr. Condit, testified that she's permanently disabled, basing this opinion on his diagnoses of her nonarticular rheumatism (musculoskeletal aches and pains not traceable to joints), fibromyalgia, sleep disorder, depression, irritable bowel syndrome, restless leg syndrome, and her symptoms of pain and fatigue.

Dr. Condit retired and Dr. Steven Neucks became Kennedy's treating rheumatologist. He testified to her "pain, poor quality sleep, fatigue, and difficulty concentrating," remarked that "because of her fibromyalgia and degenerative arthritis, as well as her underlying discomfort, I do not think that she can work a regular work schedule," and added that he "thought [that] at [her] last visit [to him] her function level had declined slightly and that her anxiety was significantly worse." And he commended her for her "consistency and lack of attempt to over dramatize her limitations," adding that "is I believe, suggestive of forthright presentation."

Dr. Dayton Payne, reviewing Ms. Kennedy's disability claim but not examining her, opined that she was able to return to her past job, while acknowledging mention in the medical record of fatigue, irritable bowel, interstitial cystitis, depression, anxiety, attention deficit disorder, diffuse tenderness, and tender points. Dr. Payne appears not to have credited these symptoms, saying that "all of the laboratory data in this file are normal." But as the district judge pointed out, it is error to demand laboratory data to credit the symptoms of fibromyalgia—the crucial symptoms, pain and fatigue, won't appear on laboratory tests. Hawkins v. First Union Corp. Long-Term Disability Plan , 326 F.3d 914, 919 (7th Cir. 2003).

Another doctor hired by the company, Dr. Dikranian, a rheumatologist, reviewed Kennedy's medical records and expressed...