UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

KATHLEEN BOXELL 

 Plaintiff, 

 v. 

THE PLAN FOR GROUP INSURANCE 

OF VERIZON COMMUNICATIONS, 

INC., 

 Defendant. 

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Case No. 1:13-CV-89 JD 

OPINION AND ORDER

This is an ERISA case in which the plaintiff, Kathleen Boxell, asserts that her long-term 

disability benefits were wrongfully terminated. The defendant, the Plan for Group Insurance of 

Verizon Communications Inc., filed a counterclaim seeking reimbursement of overpayments that 

resulted from Ms. Boxell’s receipt of retroactive social security benefits. The parties have filed 

cross-motions for summary judgment as to both claims, [DE 38, 40], and those motions are fully 

briefed. The Plan also filed motions to strike exhibits that Ms. Boxell attached to her opening and 

response briefs, and in addition to opposing those motions, Ms. Boxell moved in the alternative 

for leave to amend her complaint. Each of these preliminary motions has been fully briefed as 

well. For the following reasons, the Court denies the motions to strike and the motion for leave 

to amend, grants Ms. Boxell’s motion for summary judgment as to her claim for benefits, and 

grants the Plan’s motion for summary judgment, but only as to its counterclaim for 

reimbursement. 

I. FACTUAL BACKGROUND 

Ms. Boxell was employed by Verizon Communications Inc. as a Network Engineer. (R. 

128). Her job required her to sit at her desk and work on her computer for about 95% of her time, 
2 

although she occasionally had to visit job sites as well. (R. 108, 129). In 2009, Ms. Boxell began 

experiencing pain in her lower back and in both legs, and initial tests suggested she may have 

Paget’s disease in her L5 vertebrae, a disorder characterized by abnormal bone growth that can 

cause bones to become fragile or misshapen. Ms. Boxell saw several specialists, but the source of 

her pain and her precise diagnosis remained unclear. Although Ms. Boxell was initially able to 

work through the pain, it gradually became worse and interfered with her ability to work. (R. 

110). On September 29, 2009, with the approval of her doctor, Ms. Boxell went on medical leave 

and sought disability benefits. 

A. The Plan 

As a Verizon employee, Ms. Boxell was eligible to receive short-term and long-term 

disability benefits under the Plan for Group Insurance, an employee benefit plan governed by the 

Employee Retirement Income Security Act. Under the Plan, employees are eligible to receive 

short-term disability benefits for up to 12 months if they become totally disabled. (R. 17). 

Employees are considered “totally disabled” if, “as a result of illness, injury or pregnancy,” they 

(1) “are unable to perform the essential functions of [their] own job”; (2) “are not working at 

another job”; and (3) “are receiving appropriate care and treatment from a doctor on a continuing 

basis.” (Id.). 

Claimants who remain totally disabled after exhausting their 12 months of short-term 

disability benefits can then begin receive long-term disability benefits. (R. 31). To be eligible for 

these benefits, claimants must be totally disabled, be under the care of a doctor, and be 

undergoing appropriate care and treatment. (R. 33–34). In addition, during the first 12 months of 

receiving long-term disability benefits, claimants must be “unable to earn more than 80% of 

[their] annual benefits compensation at [their] own occupation,” and thereafter, they must be 
3 

“unable to earn more than 60% of [their] annual benefits compensation from any employer at 

any gainful occupation” to remain eligible for benefits. (R. 34). 

The Plan also contains limitations on the amount of long-term disability benefits that are 

payable where a claimant’s disability is due to certain types of conditions. Most relevant here, 

the Plan contains a provision limiting benefits for neuromusculoskeletal and soft tissue disorders, 

which states: 

Long-term disability (LTD) benefits are limited to 12 months during your lifetime 

if you are totally disabled due to a neuromusculoskeletal and soft tissue disorder 

including, but not limited to, any disease or disorder of the spine or extremities 

and their surrounding soft tissue. This includes sprains and strains of joints and 

adjacent muscles, unless the disability has objective evidence of: seropositive 

arthritis; spinal tumors, malignancy or vascular malformations; radiculopathies; 

myelopathies; traumatic spinal cord necrosis; [or] musculopathies. 

(R. 41). The Plan contains definitions for some, but not all, of those terms. 

The Plan also requires all claimants to apply for social security disability benefits, and to 

appeal any adverse decisions through the entire administrative appeals process. (R. 36). If 

claimants receive an award social security disability benefits, those benefits reduce the benefits 

payable by the Plan by an equal amount. (R. 36). Further, when claimants receive retroactive 

awards of social security disability benefits, those benefits retroactively reduce the amounts 

payable by the Plan as well, and the Plan reserves the right to recover any excess payments it 

may have made in those prior periods. (R. 37, 56). 

The Plan names MetLife as the claims administrator, and gives it “authority to make final 

determinations regarding eligibility and benefit claims under the disability income protection 

program.” (R. 46–47). The Plan further vests MetLife with the discretionary authority to interpret 

the Plan, make factual determinations, and determine whether a claimant is eligible for benefits. 

(R. 47). However, MetLife bears no financial responsibility for the benefits under the Plan—
4 

benefits are paid from trust accounts that are self-insured and that are funded through employer 

or employee contributions. (R. 47). 

B. The Claim History 

Ms. Boxell filed a claim for short-term disability benefits on September 29, 2009, citing 

back pain that was exacerbated by sitting at her desk all day and by driving. (R. 108). MetLife 

processed the claim, and determined that Ms. Boxell qualified as disabled and was entitled to 

short-term disability benefits for about a three-week period. (R. 131). MetLife subsequently 

extended her benefits on multiple occasions, as despite her treatment, Ms. Boxell remained 

unable to return to work. (R. 142–54, 162–63, 165, 206, 228). On January 6, 2010, Ms. Boxell 

received a Functional Capacity Evaluation, which found that due to the pain in her lower back 

and legs, Ms. Boxell was limited to sitting only occasionally. (R. 3049). Dr. Joseph Mattox, Ms. 

Boxell’s primary care physician, also stated that she should not return to work due to her chronic 

pain and the effects of her narcotic pain medication. (R. 4222). 

On June 18, 2010, Ms. Boxell began seeing a new pain management specialist, Dr. 

Joseph Fortin. (R. 4061). Dr. Fortin’s impressions were that Ms. Boxell suffered from Paget’s 

disease and chronic low back pain, but he was unsure of the precise cause of the pain. (R. 4064). 

On July 13, 2010, Dr. Fortin responded to several questions posed by MetLife relative to Ms. 

Boxell’s disability, and he recommended no prolonged sitting, standing, or walking, and stated 

that Ms. Boxell must change positions every 15 to 20 minutes. (R. 4060). Dr. Fortin also made 

similar recommendations in completing functional capacity assessments on September 10 and 

28, 2010. (R. 4005, 3977) 

On October 6, 2010, MetLife extended Ms. Boxell’s short-term disability benefits 

through their maximum duration of 12 months, and referred her file to its long-term disability 

benefits division. (R. 3972). Shortly thereafter, MetLife determined that Ms. Boxell was eligible 
5 

to receive long-term disability benefits under the Plan. (R. 3968). In its letter notifying Ms. 

Boxell of this decision, MetLife stated that the “medical documentation on file substantiates that 

you currently meet the definition of totally disabled.” (R. 3970). MetLife also indicated that 

because of a limitation provision in the Plan, these benefits would be only be payable for 12 

months, absent additional findings: 

Our records indicate that you are disabled due to low back pain and bilateral 

lower extremity pain, conditions which The Plan places a limit on the number of 

benefit payments payable. The condition is limited to twelve months of benefits 

under this policy. Therefore, the maximum benefit duration due to the limited 

condition will be reached on September 28, 2011. In order to qualify for disability 

benefits until September 28, 2011, you must continue to satisfy the definition of 

disability and all other requirements of you plan. 

Benefits may continue after September 28, 2011 if you continue to satisfy the 

definition of disability solely due to other non-limited medical condition(s) and 

other plan requirements. 

(R. 3970). MetLife also notified Ms. Boxell that the Plan required her to apply for social security 

disability benefits, and it referred her to attorneys to assist her with that claim. (R. 3963). 

On December 21, 2010, Dr. Fortin and Dr. Mattox each completed a functional capacity 

assessment for Ms. Boxell. Dr. Fortin’s recommendation remained the same, as he stated that 

due to Ms. Boxell’s chronic low back pain and bilateral leg pain, Ms. Boxell could not sit, stand, 

or walk for prolonged periods and that she must change positions every 15 to 20 minutes. (R. 

3919). Dr. Fortin also indicated that he had advised Ms. Boxell not to return to work. (R. 3918). 

Dr. Mattox offered a different opinion, though. He stated that Ms. Boxell was able to work 

without any physical limitations at all, that she was able to sit, stand, and walk continuously for 

eight hours a day, and that she could immediately return to work full time. (Id.). MetLife 

received this assessment, but noted in its claims log that Dr. Mattox’s opinion “is contradictory 

to Dr. Fortin and does not address the severity of Paget[’]s disease.” (R. 348). In a subsequent 
6 

medical review of Ms. Boxell’s file, MetLife concluded that “Medical continues to support 

functional limitations to prevent performance of her own job.” (R. 361). 

On December 30, 2010, Dr. Fortin also diagnosed Ms. Boxell with fibromyalgia, stating 

in his office visit notes that “[p]alpation reveals tender points consistent with fibromyalgia.” (R. 

3895). Dr. Fortin prescribed Cymbalta for that condition, and further noted that “[p]ain control is 

felt to be ‘not so good.’” (R. 3894–95). In subsequent monthly office visits, Dr. Fortin listed his 

impressions as including “Diffuse myalgias, arthralgias, and paresthesias secondary to 

fibromyalgia syndrome” and “History of Paget’s disease.” (R. 3899, 3892, 3887, 3884, 3875). 

Having been diagnosed with fibromyalgia, Ms. Boxell asked MetLife whether this condition was 

also subject to a 12-month limitation under the Plan. (R. 370). The claims specialist was initially 

unsure, but an April 28, 2011 entry in the claims log states, “Claimant remains under treatment 

with pain management for chronic diffuse pain, myalgias, paresthesias secondary to 

Fibromyalgia, which is an LDB [Limited Disability Benefit] condition.” (R. 401). MetLife 

informed Ms. Boxell the following day that her fibromyalgia was subject to the limitation 

provision, and that her long-term disability benefits were still set to terminate on September 28, 

2011. (R. 403). 

On September 16, 2011, shortly before the 12 month period expired, MetLife sent Ms. 

Boxell a letter formally advising her that her long-term disability benefits were terminating. (R. 

3841). The letter stated: 

In reviewing your file, the medical documentation indicates that you are disabled 

due to low back pain and fibromyalgia, Neuromusculoskeletal/Soft Tissue 

conditions. These diagnoses fall under the limited benefit provision of your Plan, 

and has [sic] a limitation of 12 months. Therefore the maximum duration for 

benefit payments is September 28, 2011. 

(R. 3841). MetLife advised Ms. Boxell that she could appeal this decision within 180 days, and it 

invited her to submit any additional evidence that would “support a disability other than 
7 

neuromuscular, musculoskeletal, or soft tissue disorder and/or that support[s] an exclusion to the 

provision.” (R. 3842). In a phone call to Ms. Boxell around that time, a claims representative told 

Ms. Boxell, “[W]e are not questioning disability. Plan has a LBC [Limited Benefit Condition] 

clause.” (R. 446). 

Ms. Boxell retained counsel, and on March 13, 2012, her counsel submitted an appeal of 

MetLife’s decision, accompanied by a lengthy letter and nearly one thousand pages of exhibits. 

(R. 2755). The letter is littered with ad hominem attacks on MetLife and its practices.1

 As to Ms. 

Boxell’s claim in particular, the letter primarily argued that Ms. Boxell’s Paget’s disease was the 

source of her disability, and that it fell within an exception to the limitation for 

neuromusculoskeletal and soft tissue disorders because it was a myelopathy, so that Ms. Boxell’s 

benefits should have continued beyond the 12-month limitation. (R. 2758). 

MetLife took the appeal under consideration and retained Dr. Neil McPhee, a consultant, 

to independently review Ms. Boxell’s claim. MetLife posed four questions to Dr. McPhee, 

asking him to determine whether Ms. Boxell was disabled due to any condition that was 

exempted from the limitation provision, whether she was disabled due to any other conditions, 

whether she was disabled due to the side effects of any medications, and whether she was 

receiving appropriate care. (R. 2740–42). Dr. McPhee reviewed all the medical records in the file 

and also called and spoke with Dr. Fortin and Dr. Mattox. During his discussion with Dr. 

McPhee, Mr. Mattox opined that Ms. Boxell’s “complaints are out of proportion to what would 

be expected” and that “any limitation in her functioning appears to be by her choice.” (R. 2736). 

Dr. Fortin disagreed with this assessment, though, and stated that while Ms. Boxell “does not fit 

 

1

 For example, counsel asserted that the independent medical examiner MetLife would retain to 

review Ms. Boxell’s claim would be “a fast talking carny,” a “con artist, a scam artist,” (R. 

2800), which does not appear to have gained his client any favor with the expert MetLife 

subsequently retained. (R. 1729). 
8 

in a diagnos[t]ic box,” “her pain complaints may be the result of a confluence of factors such as 

fibromyalgia, sensitivity with Paget’s disease, and chemical radiculitis.” (R. 2735). 

Dr. McPhee submitted his report on April 9, 2012. In responding to MetLife’s questions, 

he first offered terse conclusions that Ms. Boxell did not have any conditions that fit the 

exemptions to the limitation provision. (R. 2740–41). Dr. McPhee then surveyed her other 

conditions, and concluded that none of them justified any physical limitations. (R. 2741–42). He 

stated, in part, 

The low back pain complaints are out of proportion to the findings on imaging 

studies and to her examinations by multiple providers over time with her 

appearing well and in no distress with variable and mild tenderness. . . . The 

tender points used to diagnosis [sic] fibromyalgia would not support physical 

functional limitations. She has normal joint motion and neurological function, and 

in fact activity would be encouraged with the diagnosis and may be therapeutic 

and aid in diverting her focus away from her self reported pain complaints. 

(Id.). He finally opined that none of Ms. Boxell’s medications caused any limitations, but that 

Ms. Boxell had received appropriate care for her conditions. (R. 2742). 

On May 25, 2012, however, an administrative law judge of the Social Security 

Administration reached the opposite conclusion, finding that Ms. Boxell was disabled and 

entitled to social security disability benefits. (R. 2687). The ALJ found that Ms. Boxell’s severe 

impairments included, among others, Paget’s disease, lumbar facet syndrome with radiculopathy, 

chronic fatigue syndrome, and fibromyalgia. (R. 2689). The ALJ found that Ms. Boxell 

possessed the residual functional capacity to perform less than the full range of sedentary work, 

and that her condition would require her to miss more than 2 days of work per month. (R. 2690–

91). Based on these limitations, the vocational expert opined that there were no jobs in the 

national economy that Ms. Boxell could perform, so the ALJ found that Ms. Boxell qualified as 

disabled from September 29, 2009, through the date of the decision. (R. 2687, 2693). The ALJ 
9 

concluded by noting that “[m]edical improvement is expected with appropriate treatment” and 

that “a continuing disability review is recommended in 24 months.” (R. 2694). 

MetLife then sent a series of follow-up questions to Dr. McPhee, and asked him to 

consider the social security decision as well. In an addendum to his report, dated September 10, 

2012, Dr. McPhee addressed each of the categories of exemptions to the Plan’s limitation 

provision and explained why none of them were present. (R. 1735–36). He also addressed 

Paget’s disease at length, and explained that for a number of reasons, Paget’s disease had not 

been causing Ms. Boxell’s pain, and that even if it had, it did not constitute a myelopathy, so it 

would not establish an exception to the limitation provision. (R. 1739). Dr. McPhee also 

addressed Ms. Boxell’s other conditions, but his explanation as to why none of those conditions 

were disabling was identical to the explanation in his first report. (R. 1737–38). 

After receiving this addendum, MetLife forwarded Dr. McPhee’s report to Dr. Fortin and 

Dr. Mattox on October 10, 2012 for their review. It also provided a copy of the report to Ms. 

Boxell, but did not invite any response from Ms. Boxell or indicate which parts of Dr. McPhee’s 

report, if any, it intended to rely on in deciding Ms. Boxell’s appeal. (R. 1697). On November 6, 

2012, Ms. Boxell’s counsel submitted a second lengthy letter to MetLife in support of her appeal, 

attaching another thousand pages of exhibits. (R. 593). In his letter, Ms. Boxell’s counsel 

criticized Dr. McPhee’s conclusions as to whether Ms. Boxell was disabled due to fibromyalgia 

or Paget’s disease, and he urged MetLife to disregard those conclusions. (R. 593). 

By a letter on February 1, 2013, however, MetLife upheld its termination of Ms. Boxell’s 

benefits and denied her appeal. The letter quoted at length from Dr. McPhee’s reports, but did 

not contain any independent evaluation of the record. (R. 566). Consistent with Dr. McPhee’s 
10 

conclusion, the Plan found, for the first time throughout the entire claims process, that Ms. 

Boxell did not qualify as disabled under the policy: 

The information in the administrative claim file does not substantiate functional 

limitations beyond September 28, 2011. Our current review of the administrative 

claim file, which included an IPC [Independent Physician Consultant] review who 

opined that your client’s medical records, [sic] does not support functional 

limitations and or restrictions and limitations for the time period under review. 

Therefore, your client did not satisfy the Plan’s Definition of Disability and no 

additional LTD benefits are available. 

(R. 575). The letter also quoted the Plan’s limitation provisions, and stated that Ms. Boxell did 

not have any conditions that were not subject to those provisions. (Id.). Accordingly, the Plan 

declined to pay any benefits after September 28, 2011. (Id.). 

Ms. Boxell responded by filing her complaint in this matter, asserting a claim under 29 

U.S.C. § 1132(a)(1) and seeking reinstatement of her benefits. [DE 1]. The Plan answered Ms. 

Boxell’s complaint, and filed a counterclaim as well, seeking reimbursement of the overpayment 

of Ms. Boxell’s long-term disability benefits that resulted from her receipt of retroactive social 

security disability benefits. [DE 10]. Ms. Boxell initially sought to conduct discovery on various 

subjects, but the magistrate judge denied her motion and Ms. Boxell did not ask this Court to 

review that ruling. The parties thus filed the stipulated administrative record, and have now filed 

cross motions for summary judgment as to both claims. 

II. PRELIMINARY MATTERS 

Before proceeding to the merits of the motions for summary judgment, there are two 

motions to strike exhibits and a motion for leave to amend the complaint to resolve. In support of 

her motion for summary judgment, Ms. Boxell attached two exhibits: a declaration from a 

MetLife employee certifying that the administrative record included all documents relevant to 

Ms. Boxell’s claim, and the transcript of a deposition of a MetLife employee taken in an 

unrelated case. [DE 38-1, 38-2]. The Plan moved to strike these exhibits on the basis that they 
11 

are outside the administrative record and thus cannot properly be considered given the 

deferential standard of review of its claims determination. [DE 46]. In her response to the Plan’s 

motion for summary judgment, Ms. Boxell submitted another exhibit—an excerpt from an 

insurance policy that MetLife either issued to or administers for a different company [DE 49]—

and the Plan again moved to strike this exhibit. [DE 50]. Ms. Boxell responded in opposition to 

these motions, arguing on several grounds that the exhibits can properly be considered. However, 

in the alternative to her opposition to these motions, she moved for leave to amend her complaint 

to add a claim for breach of fiduciary duty under 29 U.S.C. § 1132(a)(3), under which she 

believes this evidence could be considered. [DE 54]. 

As to the declaration certifying that the administrative record is complete, the Court 

denies the motion to strike. The declaration was already part of the record in this matter, as the 

Plan filed it along with the administrative record. [DE 33-1]. Further, Ms. Boxell only uses this 

declaration to confirm that the administrative record is complete, which is an appropriate 

purpose, so there is no need to strike this exhibit. 

As to the other exhibits, the Court denies the motions to strike as moot, as the exhibits are 

inconsequential to the resolution of this matter. The deposition that Ms. Boxell attached to her 

opening brief was taken in a separate suit relating to an insurance policy that MetLife issued 

directly to an individual, meaning the suit was for breach of contract and was not governed by 

ERISA. Hinson v. Metropolitan Life Ins. Co., No. 4:11-cv-1522 (N.D. Cal). The policy at issue 

there apparently had different terms than the ERISA plan at issue here, though those terms are 

not present in the record in this case. Ms. Boxell relies on this deposition because the plaintiff in 

that matter had fibromyalgia, and although MetLife initially told the plaintiff that fibromyalgia 

was subject to his policy’s limitation on benefits for neuromusculoskeletal (“NMS”) and soft 
12 

tissue disorders, the employee who processed the claim (not the same one who processed Ms. 

Boxell’s claim) later acknowledged that the condition was actually subject to the policy’s 

limitation provision relative to chronic fatigue instead. Ms. Boxell argues that MetLife thus 

categorically interprets fibromyalgia as falling under chronic fatigue limitations of all of its 

policies, not the NMS limitations. Because the Plan here contains a NMS limitation but not a 

chronic fatigue limitation, Ms. Boxell argues that fibromyalgia must not be subject to any 

limitations under her policy and that MetLife must have been attempting to defraud her by 

suggesting otherwise.2

These conclusions simply do not follow. First, they rest on the premise that MetLife must 

interpret every one of the policies it issues or administers the same, regardless of the precise 

language or content of those policies, but Ms. Boxell provided no authority for such a 

proposition. Further, the policy at issue in Hinson was a different policy with different terms 

subject to different laws than the ERISA plan at issue here. Thus, there is no inherent 

inconsistency in interpreting provisions in that policy differently from different provisions in the 

Plan. Given the discretion vested in MetLife to interpret the terms of the Plan, the pertinent 

inquiry is whether MetLife interpreted this specific Plan reasonably, not whether it interpreted 

other plans in the same way or whether it abused its discretion or breached its contracts in other 

matters. Holmstrom v. Metropolitan Life Ins. Co., 615 F.3d 758, 768 (7th Cir. 2010) (“But 

whether MetLife’s [other] cases were won or lost, abuse of discretion is a fact-specific inquiry. 

This court is concerned only with Holmstrom’s claim and the context and circumstances of 

 

2

 Counsel further extrapolates this flawed logic into accusations bordering on the fantastical: “So 

we have a secret rule, so secret that it has never been reduced to writing, which claims personnel 

who are adjudicating hundreds or thousands of disability claims per year are unaware of, except 

intermittently. And when they become aware of it they are apparently are told to lie about it, as 

Stachnik did here. The secrecy, the lack of a writing, the duplicity, and the dishonesty is all 

indicative of a deliberate, carefully orchestrated fraud.” 
13 

MetLife’s denial as demonstrated by the administrative record in this case.”). The Hinson 

deposition is thus immaterial here. 

The excerpt from the unrelated benefits policy that Ms. Boxell attached to her response 

brief is immaterial for similar reasons. Ms. Boxell argues that a difference in language between 

that policy and the Plan must affect the way MetLife interprets the policy at issue here. Again, 

though, the only question here is whether MetLife’s interpretation of the Plan was reasonable, 

and the fact that other plans MetLife administers contain different language has no bearing on 

that question. Accordingly, whether or not these exhibits can be properly considered in this 

posture, the Court need not strike them, as they have no effect on the resolution of this matter, so 

the Court denies the motions to strike as moot. The Court also denies Ms. Boxell’s motion for 

leave to amend her complaint, which she concedes would be moot if the Court denies the 

motions to strike. The Court therefore proceeds to resolving the motions for summary judgment 

on their merits. 

III. STANDARD OF REVIEW 

On summary judgment, the moving party bears the burden of demonstrating that there “is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). A “material” fact is one identified by the substantive law as 

affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A 

“genuine issue” exists with respect to any material fact when “the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.” Id. Where a factual record 

taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 

no genuine issue for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. 

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 

U.S. 253, 289 (1968)). 
14 

In determining whether a genuine issue of material fact exists, this Court must construe 

all facts in the light most favorable to the non-moving party and draw all reasonable and 

justifiable inferences in that party’s favor. Kerri v. Bd. of Trustees of Purdue Univ., 458 F.3d 

620, 628 (7th Cir. 2006); King v. Preferred Technical Grp., 166 F.3d 887, 890 (7th Cir. 1999). 

However, the non-moving party cannot simply rest on the allegations or denials contained in its 

pleadings, but must present sufficient evidence to show the existence of each element of its case 

on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); 

Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). 

IV. ANALYSIS 

The parties have moved for summary judgment both as to Ms. Boxell’s claim for benefits 

and as to the Plan’s counterclaim for reimbursement, and the Court addresses each claim in turn. 

A. Boxell’s Entitlement to Long Term Disability Benefits 

Ms. Boxell contests the Plan’s decision to terminate her long-term disability benefits. 

“Judicial review of an ERISA administrator’s benefits determination is de novo unless the plan 

grants the administrator discretionary authority to determine eligibility for benefits or to construe 

the terms of the plan.” Holmstrom v. Metro. Life Ins. Co., 615 F.3d 758, 766 (7th Cir. 2010). 

However, where an ERISA plan vests such discretion in the administrator, “the court applies a 

more deferential standard, seeking to determine only whether the administrator’s decision was 

‘arbitrary and capricious.’” Id. (citing Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 111 (2008); 

Jenkins v. Price Waterhouse Long Term Disability Plan, 564 F.3d 856, 860–61 (7th Cir. 2009)). 

Here, the Plan vests MetLife, its claims administrator, with the discretionary authority to 

interpret the plan, make findings of fact, and determine whether a claimant is eligible for 

benefits. (R. 47). Therefore, as both parties agree, and as the magistrate judge previously held, 

the deferential arbitrary and capricious standard of review governs Ms. Boxell’s claim. 
15 

Under this standard, a plan administrator’s interpretation will only be overturned when it 

is “unreasonable, and not merely incorrect.” Herzberger v. Standard Ins. Co., 205 F.3d 327, 329 

(7th Cir. 2000); Edwards v. Briggs & Stratton Retirement Plant, 639 F.3d 355, 360 (7th Cir. 

2011) (“Put simply, an administrator’s decision will not be overturned unless it is downright 

unreasonable.”) (internal citations omitted). “Review under this deferential standard is not a 

rubber stamp, however, and ‘[the Court] will not uphold a termination [of benefits] when there is 

an absence of reasoning in the record to support it.’” Holmstrom, 615 F.3d at 766 (quoting 

Hackett v. Xerox Corp. Long-Term Disability Income Plan, 315 F.3d 771, 774–75 (7th Cir. 

2003)). “ERISA also requires that ‘specific reasons for denial be communicated to the claimant 

and that the claimant be afforded an opportunity for full and fair review by the administrator.’” 

Id. (quoting Tate v. Long Term Disability Plan for Salaried Employees of Champion Int’l Corp. 

No. 506, 545 F.3d 555, 559 (7th Cir. 2008)). “The Plan must provide a reasonable explanation 

for its determination and must address any reliable, contrary evidence presented by the 

claimant.” Love v. Nat’l City Corp. Welfare Benefits Plan, 574 F.3d 392, 397 (7th Cir. 2009)

As an initial matter, Ms. Boxell makes a threshold argument for reversal based on the 

doctrine of judicial estoppel due to the Social Security Administration’s finding that she was 

disabled. The Plan required Ms. Boxell to apply for social security disability benefits, and 

MetLife arranged for an attorney to represent her in that matter. Ms. Boxell ultimately prevailed 

and received a fully favorable decision from the Social Security Administration, which found 

that she was disabled and unable to engage in gainful employment. (R. 2693). In addition, it was 

the Plan that stood to gain the most from that decision, as the social security benefits directly 

reduced the amount to which Ms. Boxell was entitled under the Plan, both prospectively and 

retroactively. Ms. Boxell thus contends that because the Plan assisted in and benefitted from her 
16 

successful argument to the SSA that she was disabled, it should be judicially estopped from 

arguing to the contrary in this matter. 

However, the Seventh Circuit has rejected this argument on multiple occasions: “we have 

repeatedly emphasized that the SSA’s determination of disability is not binding on employers 

under ERISA.” Love, 574 F.3d at 398 (noting also that “SSA determinations are often 

instructive, but they are not determinative”); Raybourne v. Cigna Life Ins. Co. of New York, 700 

F.3d 1076, 1087 (7th Cir. 2012) (“Cigna is correct that inconsistency between its final 

determination and the ALJ’s final decision does not prove that Cigna was mistaken.”); Mote v. 

Aetna Life Ins. Co., 502 F.3d 601, 610 (7th Cir. 2007) (“[T]he Plan was not estopped from 

independently interpreting the terms of its policy merely because the SSA found Mote to be 

disabled pursuant to its standards . . . .”); Ladd v. ITT Corp., 148 F.3d 753, 756 (7th Cir. 1998) 

(holding that while these circumstances may fall “within the penumbra of the doctrine of judicial 

estoppel,” that doctrine “is technically not applicable” in these circumstances and “does not 

provide an independent basis” for awarding benefits); see Glenn, 554 U.S. at 118 (weighing the 

plan’s treatment of the SSA decision as part of the abuse of discretion analysis, but not 

considering the SSA decision to be binding on the plan). While plan administrators must 

consider an SSA decision and articulate reasons for a contrary decision, they are not bound by 

such a decision. Accordingly, the Plan is not judicially estopped from denying Ms. Boxell 

benefits, so the Court turns to whether the Plan acted arbitrarily and capriciously in terminating 

Ms. Boxell’s benefits. 

1. The Plan’s Decision Was Arbitrary and Capricious 

Ms. Boxell presents a number of arguments on this front, going so far as to accuse the 

Plan of having “perpetrated [a] systematic and sophisticated fraud.” [DE 48 p. 25]. While the 

record does not support such far-reaching charges, the Court ultimately agrees with Ms. Boxell 
17 

that the Plan acted arbitrarily and capriciously in terminating her benefits. In sum, the Plan relied 

on flawed reasoning in finding that Ms. Boxell’s fibromyalgia was not disabling and in 

discounting the Social Security Administration’s conclusion that she was disabled, it upheld its 

denial of her benefits based on different reasons than it initially denied them, and it failed to 

adequately acknowledge and justify its departure from its previous findings. Thus, despite the 

presence of some potential support for the Plan’s determination in the record, the Court 

concludes that the Plan’s decision was arbitrary and capricious. 

a. Fibromyalgia 

First, the reasons the Plan offered for concluding that Ms. Boxell’s fibromyalgia was not 

disabling do not support its conclusion. The Plan’s reasons were as follows: 

The tender points used to diagnosis [sic] fibromyalgia would not support physical 

functional limitations. There was normal joint motion and neurological function. 

The IPC [Independent Physician Consultant, Dr. McPhee] opined activity would 

be encouraged with the diagnosis and may be therapeutic and aid in diverting 

focus away from self-reported pain complaints. 

(R. 571). Taking these reasons in turn, the statement that “[t]he tender points used to diagnos[e] 

fibromyalgia would not support physical functional limitations” is a non sequitor in this context. 

By “tender points,” the Plan is referring to the diagnostic test for fibromyalgia, under which a 

patient is considered to have fibromyalgia if they have tenderness in 11 or more of the 18 trigger 

locations on the body. Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 

916 (7th Cir. 2003). However, this test can only detect the presence of fibromyalgia, not its 

severity. Id. (“The disease itself can be diagnosed more or less objectively by the 18-point 

test . . . , but the amount of pain and fatigue that a particular case of it produces cannot be.”); see 

also Jacobson v. SLM Corp. Welfare Benefit Plan, 1:08-cv-267, 2009 WL 2841086, at *8 (S.D. 

Ind. Sept. 1, 2009) (Hamilton, J.) (“The tender point test injects some objectivity into the 

diagnosis of fibromyalgia, but the amount of pain caused by the disease can be measured only 
18 

subjectively.”). Because the disabling symptom of fibromyalgia is typically pain, which is 

inherently subjective, whether fibromyalgia is disabling can only be determined by measuring 

the extent of a patient’s physical limitations, not by a diagnostic or laboratory test. Hawkins, 326 

F.3d at 919; Speciale v. Blue Cross & Blue Shield Ass’n, 538 F.3d 615, 622 (7th Cir. 2008). 

Thus, while it is true that the tender points test itself would not support functional limitations, 

that test is neither meant nor able to assess the extent of a patient’s physical limitations, so this 

reason provides no basis on which to conclude that Ms. Boxell’s fibromyalgia is not disabling. 

The next statement, that Ms. Boxell had “normal joint motion and neurological function,” 

is similarly unhelpful, as it provides no reason to believe these findings are inconsistent with a 

diagnosis of fibromyalgia, or are in any way related to the intensity or disabling effects of the 

pain Ms. Boxell experienced. The disabling symptom of fibromyalgia is pain, and these 

observations do not speak to the severity of Ms. Boxell’s pain or its limiting effects. Finally, the 

statement that activity would be encouraged and therapeutic for such a condition provides no 

basis for concluding that Ms. Boxell is not limited in her ability to work. First, Ms. Boxell’s job 

required her to sit at a computer for 90–95% of her 8-hour work day, which can hardly be 

described as “activity.” Second, assuming this was referring to other, non-sedentary jobs, the fact 

that some sort of activity might be therapeutic does not mean that Ms. Boxell could necessarily 

perform all the activities a position might require and sustain that activity for long enough 

periods to keep steady employment. The question here is not whether Ms. Boxell can engage in 

activity at all, it is whether she is physically capable of maintaining employment, and this 

rationale does not speak to that question. 

Rather than defending the reasons it offered at the administrative level, the Plan argues 

primarily that its decision was justified because Ms. Boxell failed to document the objective 
19 

physical limitations that resulted from this condition. In support of this argument, the Plan relies 

on Speciale and Williams, where the Seventh Circuit observed a distinction between the 

subjective severity of a condition and the objectively-measurable physical limitations the 

condition causes. Speciale, 538 F.3d at 622; Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322 

(7th Cir. 2007). Those cases held that while a plan cannot insist on objective evidence as to the 

severity of a claimant’s pain, it can require objective evidence of the limitations caused by that 

pain, and it can deny a claim that lacks such evidence. Speciale, 509 F.3d at 622–23; Williams, 

509 F.3d at 322–24. 

To the extent the Plan argues that there is no objective evidence of Ms. Boxell’s physical 

limitations, though, that argument is factually unsupported. Ms. Boxell underwent a functional 

capacity evaluation on January 6, 2010, and the examiner opined that Ms. Boxell could only sit 

“occasionally” due to her complaints of pain in her legs and lower back. (R. 3045). The examiner 

also noted that Ms. Boxell gave good effort throughout the evaluation and that the validity 

measures indicated the results were valid. (R. 3048). Further, Dr. Fortin submitted at least three 

separate functional capacity assessments in which he indicated that Ms. Boxell could not sit for 

more than 15–20 minutes at a time due to her chronic low back and leg pain, and he later 

attributed that pain at least in part to Ms. Boxell’s subsequent diagnosis of fibromyalgia. (R. 

2735, 3919, 3977, 4005). This evidence distinguishes this case from Speciale, where no doctor 

opined that the claimant would be unable to work under the accommodations the employer 

offered to provide. 538 F.3d at 622. 

To the extent the Plan seeks to discredit or distinguish this evidence, this argument falls 

short because the Plan failed to articulate those bases at the administrative level. See Reich v. 

Ladish Co. Inc., 306 F.3d 519, 524 n.1 (7th Cir. 2002) (stating that the plan “was required to give 
20 

[the claimant] every reason for its denial of benefits at the time of the denial,” and that it could 

not add new reasons during litigation). While it is plausible that the Plan could have articulated 

non-arbitrary reasons for discounting this evidence, as the plan did in Williams, 509 F.3d at 323, 

it did not do so, and the reasons it did offer were poor. Finally, as discussed at more length 

below, it would be improper for the Plan to rely on an absence of objective evidence of Ms. 

Boxell’s disability, since its statement in the initial denial letter that Ms. Boxell was disabled due 

to fibromyalgia gave her no reason to respond and provide further evidence on that point. See id.

(noting that “[t]he administrator clearly explained this concern [as to the lack of objective 

evidence of limitations] in both its denial letters” to the claimant). 

The Plan finally seeks to justify its conclusion that fibromyalgia was not disabling by 

arguing that even “Dr. Fortin . . . expressly excluded the diagnosis of fibromyalgia as a 

‘disabling diagnosis’ and instead identified it as just an ‘additional diagnosis.’” [DE 52 p. 9]. 

This statement is false, and misstates the record. In an office visit on September 8, 2011, Dr. 

Fortin listed five “Impressions”: “chronic low back pain”; “left hip osteoarthritis greater than 

right”; “Diffuse myalgias, arthralgias, and paresthesias”; “Fibromyalgia with possible co-existing 

regional conditions of Paget disease”; and “Estimated risk of controlled-substance abuse low.” 

(R. 3847). Under chronic low back pain, Dr. Fortin also noted, “Differential diagnosis includes: 

1. Lumbar facet syndrome. 2. Lumbar internal disc disruption. 3. Lumbar radiculopathy.” (Id.). 

This particular office note did not identify any condition as “disabling” or distinguish between 

“disabling” and “additional” diagnoses in any way. However, the claims specialist may have 

mistaken “differential diagnosis” for “disabling diagnosis,” as the September 16, 2011 

termination letter stated: 

In the September 8, 2011 office visit note, Dr. Fortin listed your disabling 

diagnoses as chronic low back pain due to lumbar facet syndrome, lumbar internal 
21 

disc disruption and lumbar radiculopathy. Additional diagnoses listed were hip 

osteoarthritis, diffuse myalgias, arthralgias and paresthesias, and fibromyalgia 

with possible co-existing regional condition of Paget’s disease. 

(R. 3842). In its briefs, the Plan then relied on this language to argue that Dr. Fortin expressly 

excluded fibromyalgia as a disabling diagnosis. As the record demonstrates, though, Dr. Fortin 

did no such thing. Accordingly, the Court finds that there is an absence of reasoning in the record 

to support the Plan’s conclusion that Ms. Boxell’s fibromyalgia did not in any way limit or 

restrict her ability to work, which indicates that the Plan’s decision was arbitrary and capricious. 

b. The Social Security Decision 

Second, the Plan did not offer any satisfactory explanation for discounting the Social 

Security Administration’s finding that Ms. Boxell was disabled. Though, as discussed above, an 

administrator is not bound by a determination of disability by the SSA, “a plan administrator 

must address it and provide a reasonable explanation for discounting it.” Holmstrom, 615 F.3d at 

773. A plan’s failure to do so “suggests arbitrary decisionmaking.” Id.; Glenn, 554 U.S. at 118 

(noting that, in addition to adding weight to the administrator’s conflict of interest (which is not 

present here), the administrator’s failure to adequately consider the Social Security decision was 

“an important factor in its own right” and “suggested procedural unreasonableness”); Raybourne 

v. Cigna Life Ins. Co. of New York, 700 F.3d 1076, 1085–88 (7th Cir. 2012). The Plan offered 

two reasons for discounting the SSA decision, the first of which was that the ALJ “stated that 

improvement was expected with appropriate treatment and recommended continuing disability 

review.” (R. 574). But the ALJ found that Ms. Boxell continued to be disabled at least “through 

the date of [his] decision,” or May 25, 2012, (R. 2687), eight months after the point the Plan 

claimed she was no longer disabled, (R. 575). Thus, while this reason may have justified a 

contrary finding at some point after May 25, 2012, it offers no explanation for how the Plan 

could find that Ms. Boxell was not disabled as of September 29, 2011. 
22 

The Plan’s second reason was that the “Plan limits benefits for NMS and [Mental or 

Nervous Disorder] conditions to 12 months which [Ms. Boxell] received, however the Social 

Security Administration does not limit benefits based on conditions.” (R. 574). However, the 

Plan did not terminate Ms. Boxell’s benefits based on those limitations—it found that she was 

not disabled at all as of September 29, 2011, which directly contradicted the SSA’s decision. 

Thus, this reason provides no justification for the Plan’s disagreement with the SSA decision, 

either.3

 Accordingly, although the Plan did acknowledge the SSA decision, its failure to offer 

any plausible reason for discounting the SSA’s finding is an indication that the Plan’s decision 

was arbitrary and capricious. 

c. The Plan’s Inconsistencies and Self-Contradictions 

If the only flaws with the Plan’s decision were its inadequate explanations for its findings 

on those issues, this may still be a close case, given the deferential standard of review. However, 

there are also a number of ways in which the Plan’s reasoning was not only inconsistent over 

time, but self-contradictory. These contradictions not only suggest arbitrary and capricious 

decisionmaking, they denied Ms. Boxell a full and fair review of her claim by misrepresenting 

the issues on which she would need to provide additional evidence. Most notable among those 

contradictions is the fact that the Plan denied Ms. Boxell’s appeal for different reasons than it 

initially terminated her benefits. In its September 16, 2011 letter informing Ms. Boxell that it was 

terminating her benefits, the Plan stated, “you are disabled due to low back pain and

fibromyalgia,” but that her benefits were expiring because those conditions were subject to the 

provision limiting long-term disability benefits for NMS conditions to 12 months. (R. 3841). In 

 

3

 The letter also noted, in explaining that the SSA decision was not binding on the Plan, that 

social security benefits are governed by different standards than those under the Plan. However, 

as Holmstrom noted in evaluating another policy with parallel language, “the Social Security 

standard for total disability is more stringent than the plan’s standard for ‘any-occupation’ 

disability,” so the different standards provide no relief to the Plan, either. 615 F.3d at 772. 
23 

denying her appeal, though, the Plan did not state that fibromyalgia was subject to any limitation, 

and instead upheld the termination on the basis that Ms. Boxell was not disabled at all. (R. 575). 

This about-face not only exemplifies the definition of capricious, it implicates Ms. 

Boxell’s right to a full and fair review of her claim, which includes being notified of the bases of 

the denial and having the opportunity to contest them. 29 C.F.R. § 2560.503-1(g). Since the Plan 

told Ms. Boxell in its September 16, 2011 letter that it had already found she was disabled due to 

fibromyalgia, she had no reason to submit additional evidence on that issue, nor did the Plan ever 

inform her what evidence she may need to provide to corroborate that she was disabled due to 

this condition. In this regard, the Plan did not just “move the target,” it hid the target, giving Ms. 

Boxell no way to know she needed to contest the Plan’s finding on this issue. Halpin v. W.W. 

Grainger, Inc., 962 F.2d 685, 689 (7th Cir. 1992) (noting that a plan’s adherence to these 

regulations “enables a participant both to appreciate the fatal inadequacy of his claim as it stands 

and to gain a meaningful review by knowing with what to supplement the record”). 

The Plan’s subsequent disclosure to Ms. Boxell of Dr. McPhee’s report, which opined 

that she was not disabled by fibromyalgia, did not cure this problem. The Plan did not indicate in 

its letter disclosing the report that it intended to adopt this aspect of Dr. McPhee’s report—the 

letter said it was seeking commentary on the report from Ms. Boxell’s doctors, which would 

indicate that was still an open question—nor did it identify what materials Ms. Boxell could 

provide to counter this finding. 29 C.F.R. § 2560.503-1(g)(iii) (requiring a plan to describe “any 

additional material or information necessary for the claimant to perfect the claim and an 

explanation of why such material or information is necessary.”); Love, 574 F.3d at 396; Halpin, 

962 F.2d at 693 (holding that “the sending of the file, without sufficient indication of what parts 

of the file the Committee relied on or rejected, does not repair the inadequacy” of the explanation 
24 

in the letter denying benefits). In fact, the Plan did not invite a response from Ms. Boxell at all 

(though it did receive one); it merely asked her doctors to comment on the report, and it provided 

very short timeframes for them to do so. (R. 1697). 

The Plan attempts to downplay this discrepancy by claiming that its initial statement that 

Ms. Boxell was disabled due to fibromyalgia was only a scrivener’s error and should be 

disregarded, but the drafting history of the letter belies this assertion. See Young v. Verizon’s Bell 

Atlantic Cash Balance Plan, 615 F.3d 808, 810 (7th Cir. 2010) (reviewing the drafting history of 

an ERISA plan to determine if a discrepancy was the result of a scrivener’s error). The first draft 

of the letter said only that Ms. Boxell was disabled due to low back pain. (R. 4328). The claims 

specialist, who apparently drafted the letter, then emailed the draft to her supervisor, who 

inserted that Ms. Boxell was disabled “due to low back pain and fibromyalgia.” (R. 4331). In her 

email returning this draft, the supervisor explained, “I also added fibromyalgia as one of the dxs 

[diagnoses] as previous reviews indicated med supported r/ls [restrictions and limitations] due to 

fibro[myalgia].” (R. 4330). The final version of the letter that MetLife sent to Ms. Boxell on 

September 16, 2011 included that language, and advised Ms. Boxell that the Plan found her 

disabled due to fibromyalgia. Thus, though the Plan apparently regrets this language in hindsight, 

this language was deliberately inserted into the letter, and clearly does not constitute a 

scrivener’s error. United States v. Gibson, 356 F.3d 761, 766 n.3 (7th Cir. 2004) (noting that a 

scrivener’s error is clerical in nature, and is not an error of reasoning or analysis). 

The Plan’s reliance on Mote for arguing that this scrivener’s error would be harmless is 

also misplaced. Mote emphasized that because the error occurred in the final denial letter, it did 

not affect the claimant’s ability to pursue her administrative remedies and present additional 

evidence to the Plan. 502 F.3d at 605 n.2. Here, the purported scrivener’s error was in the initial 
25 

letter denying Ms. Boxell’s claim, so she would have been justified in believing, as the letter 

stated, that the Plan already found her to be disabled due to fibromyalgia and that she need not 

submit any additional evidence on that point. 

Furthermore, the Plan’s ultimate finding that Ms. Boxell was not disabled not only 

contradicted its initial denial letter, it was inconsistent with its entire course of handling Ms. 

Boxell’s claim. Granted, a claim administrator “is entitled to seek and consider new information 

and, in appropriate cases, to change its mind,” so this change of heart does not necessarily equate 

to arbitrary and capricious decisionmaking. Holmstrom, 615 F.3d at 767; Leger, 557 F.3d at 832. 

Nonetheless, such inconsistencies can still “be considered in the court’s review process,” 

Holmstrom, 615 F.3d at 767, and a plan’s failure to acknowledge and provide a non-arbitrary 

explanation for its deviation from its prior findings can require remand. Hackett v. Xerox Corp. 

Long-Term Disability Income Plan, 315 F.3d 771 (7th Cir. 2003). 

Here, the Plan consistently concluded that Ms. Boxell was disabled over the two years it 

paid her short-term and long-term disability benefits. The Plan extended Ms. Boxell’s benefits on 

multiple occasions throughout the short-term disability period, each time finding that she was 

disabled, meaning that she was unable to perform the essential functions of her job. (E.g., R. 

4045, 4027, 3972). The Plan then approved Ms. Boxell’s application for long-term disability 

benefits, finding that she remained totally disabled as of September 29, 2010. (R. 3970, 364). 

The Plan also appears to have made the same finding in subsequent reviews in January and April 

2011, even after Dr. Mattox opined on December 21, 2010, that Ms. Boxell was not disabled.4

(R. 364, 399). Further, when the Plan initially terminated Ms. Boxell’s long-term disability 

benefits based on the 12-month limitation, it noted that it still found her to be disabled as of 

 

4

 The Plan actually continued to pay benefits for 10 months after that point, indicating that the 

Plan did not credit Dr. Mattox’s opinion. 
26 

September 29, 2011, and the claims specialist even reassured Ms. Boxell on September 13, 2011 

that “we are not questioning disability.” (R. 446, 3841). 

Nonetheless, the Plan upheld its termination of Ms. Boxell’s benefits on the basis that she 

was no longer disabled, stating, “The information in the administrative claim file does not 

substantiate functional limitations beyond September 28, 2011. . . . Therefore, [Ms. Boxell] did 

not satisfy the Plan’s Definition of Disability and no additional LTD benefits are available.” (R. 

575). The Plan did not acknowledge in this letter that it had already found Ms. Boxell to be 

disabled during this very period, nor did it explain why this conclusion differed from its previous 

ones.5

 This discrepancy could arguably be explained by the Plan’s receipt of Dr. McPhee’s report 

in the interim, as the Plan’s reliance on that report is apparent from its letter. However, Dr. 

McPhee did not acknowledge or explain those discrepancies, either, see Hackett, 315 F.3d at 775 

(noting that a plan’s departure from its previous findings could have been justified had the 

medical expert referenced those findings and explained his deviation from them), and his 

reasoning for finding Ms. Boxell not disabled was flawed as to at least one of her conditions, as 

discussed above. Thus, the Plan could not have reasonably relied on the report alone as a basis 

for departing from its previous findings. 

The Plan also appears to have changed its mind as to whether fibromyalgia was subject to 

the 12-month limitation of benefits. It the September 16, 2011 letter terminating Ms. Boxell’s 

benefits, the Plan referred to fibromyalgia as a “Neuromusculoskeletal/Soft Tissue Condition[],” 

 

5

 Granted, since the Plan had already paid 12 months of long-term disability benefits, the 

question at this point was less whether Ms. Boxell was disabled in general, and more whether she 

was disabled due to any condition not subject to a 12-month limitation. But even to the extent 

this inconsistency related to disabilities that remained subject to the limitation and would not 

have justified continuing benefits anyway, it still reinforces the conclusion that the similar 

inconsistency as to fibromyalgia, which apparently was not subject to a 12-month limit, was 

arbitrary and capricious as well. 
27 

and stated that it “fall[s] under the limited benefit provision of your Plan, and has a limitation of 

12 months.” (R. 3841). This was consistent with multiple references in the claims log and 

statements to Ms. Boxell that fibromyalgia was a neuromusculoskeletal condition subject to a 12-

month limit. (R. 401 (“Claimant remains under treatment with pain management for chronic 

diffuse pain, myalgias, paresthesias secondary to Fibromyalgia, which is an LDB [Limited 

Disability Benefit] condition.”); 403 (“Advised [Ms. Boxell] clainical [sic] advised Firbo [sic] is 

LBC [Limited Benefit Condition] also.”); 404 (“LDB continues to apply for DX 

Fibromyalgia.”); 408 (“[Claims specialist] confirmed with [Ms. Boxell] again that 

Fibro[myalgia] would fall under LBC.”); 410 (“[Ms. Boxell] wanted to know why/how 

Fibro[myalgia] falls under a LBC also. [Claims specialist] advised [Ms. Boxell] myalgia’s and 

myositis’ fall under neuromusculoskeletal which is a LBC.”); 416 (“LDB still applies—LDB 

will continue to apply for DX of Fibromyalgia.”); 426 (“Fibro[myalgia] would be considered a 

LDB also.”)). Had that continued to be the case, it would have been immaterial whether Ms. 

Boxell was actually disabled by fibromyalgia, as she would have already received all the benefits 

she was due for such a condition. 

However, an entry in the claims log on May 1, 2012 indicates that the Plan reversed its 

interpretation of this provision. Specifically, the entry notes that “AS [Appeals Specialist] 

received verification from Claim UL [Unit Leader]” that “chronic fatigue/fibro. does not apply to 

the LDB provision.” (R. 492). Thereafter, no further entries reference fibromyalgia as being 

subject to any limitation, and the letter upholding the termination of Ms. Boxell’s benefits did 

not either. (R. 566–575). But despite this apparent change in its interpretation of this provision, 

the Plan never expressly acknowledged to Ms. Boxell that it had changed its mind, nor did it ever 

provide reasons for having done so. This unexplained discrepancy is a clear indication of 
28 

arbitrariness and capriciousness, and violated ERISA’s procedural requirements as well. Had the 

Plan informed Ms. Boxell that she could continue to receive long-term disability benefits if she 

could demonstrate that she was disabled due to fibromyalgia, she would have had incentive to 

develop the record on that point. But without having done so, and having already told her that it 

found her to be disabled due to that condition, the Plan’s termination of Ms. Boxell’s benefits on 

the basis that she was not disabled due to fibromyalgia was improper. 

For all of these reasons, the Court concludes that the Plan has not substantially complied 

with its obligation to articulate non-arbitrary reasons for its decision and to afford Ms. Boxell an 

opportunity for full and fair review of her claim, so the Court finds that the Plan’s decision was 

arbitrary and capricious and must be vacated. 

d. Other Arguments 

Ms. Boxell makes several arguments that are unavailing. First, she spends considerable 

effort trying to establish that MetLife denied her claim because of its conflict of interest. This 

argument is misplaced, though, since MetLife does not have any structural conflict in this matter. 

Long-term disability benefits under the Plan are paid by a trust that is self-insured and that is 

funded with employee contributions. Meanwhile, all claims decisions are made by MetLife, the 

claims administrator, which neither funds nor insures the Plan. (R. 47). Thus, MetLife has no 

financial interest in the outcome of its claims, and is not conflicted. Aschermann v. Aetna Life 

Ins. Co., 689 F.3d 726, 729–30 (7th Cir. 2012) (noting that the delegation of claims 

determinations to a third party without any financial interest in the outcomes “reduced any 

potential for conflict,” and that, if anything, the third party claims administrator’s incentive was 

to favor the claimants, not the plan). 

Ms. Boxell also argues that the Plan’s procedures were flawed because it did not have a 

written internal policy governing whether fibromyalgia was subject to a 12-month limitation of 
29 

benefits. In support of this argument, Ms. Boxell cites a regulation that requires plans to 

“establish and maintain reasonable procedures governing the filing of benefit claims, notification 

of benefit determinations, and appeal of adverse benefit determinations,” which must include 

“administrative processes and safeguards designed to ensure and to verify that benefit claim 

determinations are made in accordance with governing plan documents and that, where 

appropriate, the plan provisions have been applied consistently with respect to similarly situated 

claimants.” 29 C.F.R. § 2560.503-1(b)(5). Ms. Boxell’s interpretation of this regulation as 

requiring a written policy for fibromyalgia is unreasonably broad, however, and would 

essentially require every exercise of a plan’s discretion to be governed by a written policy. Ms. 

Boxell has not cited any authority supporting such a proposition, nor has the Court located any, 

so the fact that the Plan did not rely on a written policy in determining whether fibromyalgia was 

subject to a limitation is immaterial. 

Finally, Ms. Boxell argues that the Plan must be interpreted to limit benefits only for 

conditions that affect both the neuromusculoskeletal system and soft tissues, such that conditions 

that only affect one or the other would not be subject to the 12 month limitation on benefits. Ms. 

Boxell’s interpretation of this provision is a bit of a reach, though. The provision in question 

limits benefits if a claimant becomes disabled “due to a neuromusculoskeletal and soft tissue 

disorder,” which might reasonably be interpreted as referring to a disorder within the class of 

neuromusculoskeletal and soft tissue disorders, which could encompass diseases affecting one or 

the other, rather than only disorders that affect both a claimant’s neuromusculoskeletal system 

and their soft tissues. The Court need not decide that question, though, because Ms. Boxell has 

failed to show that anything turns on these competing interpretations. Ms. Boxell suggests in her 

reply brief that “Paget’s disease, degenerative disc disease, facet arthropathy, [and] lumbar facet 
30 

syndrome with radiculopathy” are only neuromusculoskeletal disorders, not soft tissue disorders, 

but she offers no authority for that assertion. Further, she fails to establish that any of these were 

actually disabling conditions, or, more to the point, that the Plan’s conclusion to the contrary as 

to any of these particular conditions was arbitrary and capricious. Accordingly, this would not be 

a basis for vacating the Plan’s decision. 

2. The Remedy 

Having found that the Plan acted arbitrarily and capriciously in terminating Ms. Boxell’s 

benefits, the Court turns to the proper remedy. “Courts that find a plan administrator’s denial of 

benefits to be arbitrary and capricious may either remand the case for further proceedings or 

reinstate benefits.” Leger, 557 F.3d at 835 (quoting Tate, 545 F.3d at 562–63). However, 

“generally, when a court or agency fails to make adequate findings or fails to provide an 

adequate reasoning, the proper remedy in an ERISA case is to remand for further findings or 

explanations, unless it is so clear cut that it would be unreasonable for the plan administrator to 

deny the application for benefits on any ground.” Id. (internal alterations omitted). Here, remand 

is required, as the record is not unequivocal as to whether Ms. Boxell is disabled due to a 

condition not subject to a 2-year limitation under the Plan. Even one of her own doctors believed 

she was able to return to work without restriction, and if she was disabled, that disability may 

have been subject to a limitation of benefits. Thus, although the Plan has failed to adequately 

justify its decision, the Court cannot definitively conclude on this record that it would have been 

unreasonable for the Plan to terminate Ms. Boxell’s benefits. 

Courts sometimes recognize an exception to this general rule where a plan that has 

already determined that a claimant is entitled to the benefits at issue terminates those benefits 

through defective procedures. E.g., Holmstrom, 615 F.3d at 778–79; Hackett, 315 F.3d at 775–

76; Halpin, 962 F.2d at 697. But see Love, 574 F.3d at 398 (remanding for further consideration 
31 

even though the decision to terminate benefits was arbitrary and capricious); Leger, 557 F.3d at 

835 (same). In those circumstances, returning the parties to the status quo means reinstating 

benefits to which the claimant had already been found entitled and which the plan had not 

properly terminated. E.g., Holmstrom, 615 F.3d at 778–79. That exception does not apply here, 

though, since the Plan had never found Ms. Boxell to be eligible for long-term disability benefits 

past the 12-month limitation. (R. 3970). See Quinn v. Blue Cross & Blue Shield Ass’n, 161 F.3d 

472, 477 (7th Cir. 1998) (holding that since the claimant “was not scheduled to continue 

receiving benefits” at the time of the termination, the proper remedy was to remand). Even 

though the Plan failed to adequately justify its decision, the status quo prior to that decision was 

that Ms. Boxell’s benefits would terminate on September 28, 2011, so retroactively reinstating 

Ms. Boxell’s benefits would be improper. 

Accordingly, the Court remands this matter to the Plan to conduct a full and fair review 

of Ms. Boxell’s claim. Should the Plan ultimately decide that Ms. Boxell was entitled to benefits 

as of September 29, 2011, it should retroactively reinstate her benefits, though it remains free to 

review her continuing eligibility for benefits in the future. Should the Plan conclude that Ms. 

Boxell was not entitled to benefits after September 28, 2011, it should identify all the bases for 

its decision, allow Ms. Boxell to submit evidence in support of her claim, and provide nonarbitrary reasons in support of its decision and for discounting any credible evidence to the 

contrary.

B. The Fund’s Entitlement to Reimbursement 

The Fund has separately asserted a counterclaim against Ms. Boxell for reimbursement of 

overpayments it made as a result of her receipt of retroactive social security benefits. Under the 

terms of the Plan, a claimant’s long-term disability benefits are reduced by any benefits the 

claimant receives from other sources, including social security disability benefits. (R. 36). The 
32 

Plan further provides that when a claimant receives an award of such benefits retroactively, the 

Plan is entitled to recover any amounts it paid in excess of what the claimant was entitled to, and 

that those amounts are “subject to a constructive trust in favor of the plan.” (R. 37, 56). Ms. 

Boxell began receiving Long Term Disability benefits on September 29, 2010, and on May 25, 

2012, the SSA determined that she was entitled to social security disability benefits and awarded 

benefits retroactive to March 1, 2010. (R. 2675, 2687). The Plan thus calculates that it overpaid 

Ms. Boxell’s benefits by $12,828. (R. 2654). 

These sorts of provisions can be enforced through ERISA under 29 U.S.C. § 1132(a)(3), 

as the Supreme Court held in Sereboff v. Mid Atl. Med. Servs., 547 U.S. 356 (2006), and the 

Seventh Circuit has enforced similar provisions requiring the reimbursement of retroactive social 

security benefits. Gutta v. Standard Select Trust Ins. Plans, 530 F.3d 614, 620–21 (7th Cir. 

2008); see Weitzenkamp v. Unum Life Ins. Co of Am., 661 F.3d 323, 331–32 (7th Cir. 2011). In 

addition, Ms. Boxell signed an agreement prior to receiving her long-term disability benefits in 

which she agreed to reimburse the Plan for any overpayment it might make as a result of a 

retroactive award of social security benefits, so this reimbursement could be enforced 

contractually as well. (R. 3999). Ms. Boxell did not address the Plan’s counterclaim in her own 

motion for summary judgment, and she did not respond to the Plan’s motion for summary 

judgment as to this issue, meaning she failed to contest either her obligation to repay or the 

amount that she owes. Accordingly, the Court grants the Fund’s motion for summary judgment 

as to its counterclaim, and finds that the Fund is entitled to reimbursement in the amount of 

$12,828. 

V. CONCLUSION 

The Court DENIES the Plan’s motions to strike [DE 46, 50] and Ms. Boxell’s motion for 

leave to amend her complaint [DE 54]. The Court GRANTS Ms. Boxell’s motion for summary 
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judgment [DE 38], and REMANDS this matter to the plan administrator to determine, after 

conducting a full and fair review, whether Ms. Boxell is entitled to Long Term Disability 

Benefits after September 28, 2011. Finally, the Court DENIES the Plan’s motion for summary 

judgment [DE 40] as to Ms. Boxell’s claim, but GRANTS that motion as to the Plan’s 

counterclaim, and enters judgment in the Plan’s favor on its counterclaim in the amount of 

$12,828. 

 SO ORDERED. 

 ENTERED: September 22, 2014 

 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court