In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2617

BRUCE FISCHER,

Plaintiff-Appellant,

v.

LIBERTY LIFE ASSURANCE COMPANY OF BOSTON

and STEIN ROE INVESTMENT COUNSEL LLC

LONG TERM DISABILITY PLAN,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 05 C 3256—Joan B. Gottschall, Judge.

ARGUED JANUARY 21, 2009—DECIDED AUGUST 4, 2009

Before POSNER, FLAUM, and WOOD, Circuit Judges.

WOOD, Circuit Judge. This case arose after Liberty Life

Assurance Company of Boston (“Liberty”) decided to

terminate the payment of long-term disability benefits to

the plaintiff, Bruce Fischer. Fischer tried to reverse that

decision at the administrative level. When he could not,

he sued Liberty and the sponsor of his benefits plan, Stein
2 No. 08-2617

Roe Investment Counsel LLC Long-Term Disability Plan

(to which we refer collectively as “Liberty”), seeking an

order compelling Liberty to continue his benefits. The

district court granted Liberty’s motion for summary

judgment, and Fischer appealed. We conclude that the

district court properly applied a deferential standard of

review to Liberty’s decision, and that, under that

standard, there is no reversible error.

I

A

Fischer is a 59-year-old man who began working for

Stein Roe Investment Counsel, LLC, in May 1996 as the

company’s lead programmer. On September 22, 2001, he

ended his employment with Stein Roe and applied for

short-term disability benefits under Liberty’s benefits

plan (“Plan”), claiming memory loss and attention problems. Liberty approved Fischer’s claim and he began

receiving short-term disability benefits effective September 22, 2001. Shortly thereafter, Fischer sought treatment

from his physician, Dr. Randy Georgemiller. In November

2001, Dr. Georgemiller diagnosed Fischer with “Axis I

major depression, recurrent, moderate cognitive disorder

NOS, and R/O Dementia, Alzheimer’s type, early onset

with depression; Axis II no diagnosis; Axis III mild

cortical atrophy, diabetes mellitus, hypertension, arthritis,

asthma and ulcerative colitis; Axis IV psychological

and environmental problems, occupation problems, and

economic problem[s]; and Axis V FGAF 50 current.” On

November 28, 2001, Fischer saw neurologist Dr. Jordan
No. 08-2617 3

Waxman, who diagnosed him with “a profound depression

with questionable coexistent dementia.” In a February 18,

2002, attending physician’s statement (a form used by

Liberty’s claims department), Dr. Robert Greendale, who

had examined Fischer each month from June 2001 to

January 2002, diagnosed him with major depression

secondary to a medical condition. In a similar statement

written on February 26, 2002, Dr. Laura LaFave, who

had seen Fischer beginning in November 2001, diagnosed

him with “severe depression disorder with cognitive

impairment” and noted that Fischer had problems

with memory and concentration.

On February 20, 2002, Liberty acknowledged that it had

received a claim from Fischer for long-term disability

benefits. Liberty informed Fischer that since his disability

officially began on September 22, 2001, a 180-day waiting

period would apply, during which time Liberty would

evaluate his eligibility for benefits. Fischer submitted

statements from Drs. Waxman, Greendale, and LaFave

to Liberty. In addition, presumably in an effort to bolster

his claim, Fischer sought diagnoses from additional

physicians. On March 21, 2002, Fischer saw neurologist

Dr. Zoran Grujic. Dr. Grujic noted that Fischer had some

problems with attention, memory encoding, and memory

retrieval, but no problems with forgetfulness. (We are not

sure how “memory retrieval” differs from forgetfulness,

but Dr. Grujic drew this distinction.) Dr. Grujic also

recorded that Fischer had a history of encephalitis as a

child and that he suffered from “periods of zoning out”

that were occasionally accompanied by urinary incontinence. Based on these observations, Dr. Grujic suggested
4 No. 08-2617

the “possibility of a partial complex seizure disorder as

a contributor to his decline” and also noted that

Fischer’s preliminary test results and age were “atypical”

for Alzheimer’s disease. Dr. Grujic thus recommended

further examinations, including a long-term electroencephalography (“EEG”) study and a positron emission tomography (“PET”) scan.

On May 24, 2002, Liberty approved Fischer’s claim

for long-term disability benefits, retroactive to March 21,

2002, at a level representing 60% of his pre-disability

earnings (because his condition was pre-existing). Liberty

also told Fischer that, as the Plan required, his disability

status would be “evaluated relative to [his] inability

to perform material and substantial duties of his occupation” for the first 24 months, and thereafter his status

would be “evaluated relative to [his] inability to perform

the material and substantial duties of his own or any

occupation for which he has training, education, or experience.” Liberty noted that, because of the nature of his

illness, which it described as major depression, Fischer

was subject to the Plan’s limitation for mental illnesses.

Under this provision, benefits for a disability attributable

to “Mental Illness, Substance Abuse, or Non-Verifiable

Symptoms” were subject to a 24-month maximum. The

Plan also contained an exception to that rule:

Benefits may exceed this limitation only if the

Covered Person is confined to a hospital or institution

for Mental Illness or Alcohol or Drug Abuse, or is

participating in an Extended Treatment Plan established in writing by a Physician in lieu of hospitaliza-
No. 08-2617 5

tion. The extension of benefits beyond the 24 month

limitation is subject to review by Liberty.

Liberty also alerted Fischer to the fact that there was no

guarantee that he would receive benefits for the full 24-

month benefit period.

On July 25, 2002, Fischer underwent a PET scan. The

results of the test were first reviewed by Dr. Grujic on

August 13, 2002. Dr. Grujic noted that the PET scan

raised the possibility of early Alzheimer’s disease. In his

view, however, taking Fischer’s medical history as a

whole, Fischer could not properly be diagnosed with

Alzheimer’s without further testing. Dr. Grujic thought

that the unusual PET scan results might be attributable

to the encephalitis that Fischer had suffered as a child. In

addition, taking into account a 24-hour EEG that also

had been performed and returned negative results,

Dr. Grujic continued to believe that Fischer might have

an underlying seizure disorder and thought that Fischer

might benefit from medications for that condition.

On February 3, 2003, Liberty’s consulting neuropsychologist, Dr. James Taylor, reviewed Fischer’s case.

Dr. Taylor was unaware that Fischer had completed

EEG and PET studies the previous summer. In the

absence of such studies, Dr. Taylor decided that further

neuropsychological testing was needed to evaluate

Fischer’s work capacity. Dr. Taylor thought that prior

assessments of Fischer’s neuropsychological and neurological status did not conclusively establish his level of

functional impairment and were in any event too dated

to be used to evaluate his current work capacity.
6 No. 08-2617

Dr. Taylor wanted to rule out the possibility that some of

Fischer’s functional losses were the result of a mood

disorder and thus reversible. As a result, he recommended that Liberty follow up to see whether EEG and

PET studies had been completed or conduct a new

neuropsychological evaluation of Fischer.

On April 18, 2003, Liberty advised Fischer that his longterm disability benefits would be discontinued because

his treating physicians, Drs. LaFave and Greendale, had

failed to verify his ongoing disability status. Liberty

informed him that he could ask Liberty in writing to

review this determination within 180 days. Fischer responded to this letter by submitting additional medical

records, including a neuropsychological evaluation

report from Dr. Georgemiller. Dr. Georgemiller noted that

his findings indicated “global, progressive cognitive

deficits in conjunction with significant depression,” and

while Fischer’s intellectual skills fell into the “very superior” range, he had “reduced mental speed and visual

spatial skills” as well as reduced “flexible thinking and

susceptibility to losing his problem solving set with

distraction.” Dr. Georgemiller stated that when Fischer’s

performance was compared to his performance 16 months

earlier, “there is significant decrement in his working

memory, mental speed, attention and concentration, mental flexibility, and visual spatial abilities.”

Dr. Georgemiller’s conclusion was that Fischer was “very

depressed but his mood disorder does not appear to be

the sole etiology of his cognitive and functional deficits.”

The doctor recommended “[a]ggressive psychopharmacological treatment” for Fischer’s depression to
No. 08-2617 7

“assist in improving his mood and [to] promote a higher

level of functioning,” coupled with “[p]harmacological

agents to mitigate the effects of progressive cognitive

decline.” In May 2003, at Liberty’s request, Dr. James

Butcher, Liberty’s consulting physician, also administered a number of personality and behavioral tests to

Fischer. Dr. Butcher’s results were reported in his “Outpatient Mental Health Interpretive Report,” submitted to

Liberty on September 15, 2003. That report indicated that

Fischer’s results were consistent with depression and

hysteria, and that Fischer was likely suffering from a nonorganic dysthymic disorder (that is, a chronic, but less

severe, form of depression).

Fischer formally appealed Liberty’s decision to discontinue his long-term disability benefits in a letter to

Liberty dated June 11, 2003. Fischer asserted that the

medical evidence established that he was, and remained,

disabled “as the result of a severe neurocognitive impairment.” Liberty reopened Fischer’s claim on June 23,

2003, and referred his case to a consulting physician,

Dr. Melvyn Attfield, to determine precisely what Fischer’s

primary disabling condition was. Dr. Attfield confined

himself to reviewing the file. Based on that review, he

concluded that there was insufficient evidence of a disorder that was primarily neurological and that Fischer’s

clinical presentation was predominantly psychological,

not organic. Dr. Attfield also stated that the neurological

examinations performed by Dr. Georgemiller were inconsistent and methodologically flawed, and he recommended that Fischer undergo an independent neurological evaluation. In response, Liberty referred Fischer to
8 No. 08-2617

Dr. Steven Rothke, a clinical neuropsychologist and

rehabilitation psychologist. On February 5, 2004, Dr.

Rothke evaluated Fischer, reviewed his medical history,

and performed an independent psychiatric evaluation

of him. Dr. Rothke concluded that Fischer’s test results

showed no significant decline in intellectual functioning,

concentration, recall, or memory. Dr. Rothke noted that

on the test most sensitive to brain impairment, Fischer

performed within the normal range. Dr. Rothke stated that

he did not believe that Fischer had any progressive dementing condition. Dr. Rothke’s diagnosed mild depression (although he admitted that the testing could not

rule out the presence of a medical or neurological condition or explain the MRI and PET scan findings). In response to Dr. Rothke’s findings, Fischer submitted to

Liberty a report authored by Dr. Grujic, who opined that

Fischer’s July 2002 and September 2003 PET scans, his

clinical presentation, and his results on several tests were

consistent with organic impairment, although the source

of that impairment was unclear.

On March 23, 2004, Liberty again wrote to Fischer

and notified him that, based on its initial determination

that he was subject to the 24-month limitation for mental

illnesses, his benefits expired on March 20, 2004. Liberty

left the door open to change, however, insofar as it also

told him that it was “currently gathering information to

assess [his] continued eligibility for benefits beyond this

date” and that he would “continue to receive benefits

during this review.” True to its word, Liberty then submitted Fischer’s medical records to neurologist Dr. Dawn

Kleindorfer. Dr. Kleindorfer reviewed Fischer’s file and
No. 08-2617 9

concluded that the objective findings did not support a

diagnosis of dementia. She qualified that conclusion

with a note that Fischer does have “suggestive PET scanning of a dementing process that I would want to follow

clinically overtime [sic].” Dr. Kleindorfer also specified

that Fischer’s neuropsychological testing “reveals very

superior functioning on all levels of testing” and that she

did not “feel that he has any objective evidence of impairment.” Liberty also submitted Fischer’s medical

records to Dr. Elizabeth Gallup who, on April 30, 2004,

opined that “the cornerstone of the diagnosis of Alzheimer’s or any dementia is cognitive impairment, particularly in short-term memory . . . [but that, in Fischer’s

case,] . . . no cognitive impairment exists.”

On May 25, 2004, relying on Fischer’s medical records

and the reports of Drs. Attfield, Rothke, Kleindorfer, and

Gallup, as well as those of Fischer’s treating physicians,

Liberty determined that Fischer’s primary disability was

major depression, a mental/nervous condition. This

meant that the Plan’s 24-month limitation for mental

illnesses applied, and Liberty therefore discontinued

Fischer’s benefits. Liberty’s letter informed Fischer that

he had a right of review pursuant to the Employee Retirement Income Security Act (“ERISA”), and that any

request for a review needed to be sent in writing within

60 days of his receipt of its determination of ineligibility

and had to be supported by medical records of treating

physicians recorded after December 1, 2003. Fischer

appealed Liberty’s decision on November 23, 2004; he

argued that he was disabled because he suffered from a

seizure disorder, dementia, and other physical conditions
10 No. 08-2617

such as diabetes, colitis, hypertension, asthma, and arthritis. Fischer contended that Liberty’s decision was

contrary to Liberty’s own interpretive rule, which says,

“Only when it can be determined that the claimant is

disabled solely from a psychological basis can the limitation be applied.” On December 20, 2004, Liberty advised

Fischer that he had until January 20, 2005, to submit any

additional evidence he believed would support his case;

Fischer did not submit any further evidence, and Liberty

proceeded to conduct another review of Fischer’s case.

For the purpose of this stage of the proceedings, Liberty

assigned a Nurse Case Manager to go through Fischer’s

file and decide whether Fischer was disabled as a result

of any physical conditions or organic brain disorder. The

Nurse Case Manager concluded that two peer reviews

were necessary in order to answer this question. Fischer’s

file was accordingly referred to internist Dr. Eugene

Truchelut and neuropsychologist Dr. Cris Johnston.

Dr. Truchelut was asked to review any physical impairment that Fischer might have. He opined that Fischer

had a torn rotator cuff in the right shoulder that would

limit him to lifting no more than 20 pounds and that

suspicion of partial complex seizures made it appropriate to restrict Fischer’s exposure to unprotected heights

and limit his operation of machinery, but he found that

there was no other physical condition that would limit his

ability to return to work. Dr. Johnston was asked to

review Fischer’s history from a psychological and neurological perspective; he determined that a diagnosis of

dementia was premature. Dr. Johnston concluded that,

based on Fischer’s neuropsychological test scores, “there
No. 08-2617 11

is no question that he has the cognitive capacity to

function adequately in a wide range of jobs.” Based on

these findings, Liberty upheld its determination that

Fischer was ineligible for benefits beyond the 24-month

mental illness limitation period.

B

On June 1, 2005, Fischer filed this action pursuant to

29 U.S.C. § 1132(a)(1)(B) to reinstate his long-term disability benefits. Following the close of pleadings, the parties

filed cross-motions for summary judgment under

FED. R. CIV. P. 56. Although the district court initially

denied both parties’ motions, on reconsideration it

granted summary judgment in Liberty’s favor. The court

explained that it had made an error of law in its initial

ruling when it concluded that Liberty’s motion should

be denied because a “reasonable fact finder might disbelieve Liberty’s doctors, or find that Liberty’s decision to

disregard the evidence of physical disability provided

by Fischer’s doctors to be arbitrary and capricious.” The

court concluded that it had applied an incorrect standard

of review, and when the appropriate arbitrary and capricious standard was applied, it was clear that the “court’s

earlier determination . . . [was] insufficient to defeat the

presumption of reasonableness to which Liberty’s determination is entitled under Seventh Circuit precedent.”

Fischer has appealed from the district court’s final judgment in favor of Liberty.
12 No. 08-2617

II

While this court ordinarily reviews a district court’s

grant of summary judgment de novo, that standard

operates somewhat differently when we are looking at the

determination of an ERISA plan administrator whose

decisions are entitled to deferential review (that is,

whose decisions may be set aside only if they are

arbitrary and capricious). Under Firestone Tire and Rubber

Co. v. Bruch, 489 U.S. 101, 115 (1989), if a benefits plan

confers discretionary authority to determine eligibility

and benefits under the plan, then judicial review is deferential; if it does not, then the court makes an independent

decision. See Krolnik v. Prudential Insurance Co., No. 08-

2616, 2009 WL 1838298 at *1 (7th Cir. June 29, 2009). Both

parties agree that the arbitrary and capricious standard

is the appropriate standard of review for Fischer’s case.

Fischer argues, however, that this standard has been

modified by the Supreme Court’s decision in Metropolitan

Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008). Under

Glenn, he asserts, less deference is required in cases

like this one, where the administrator operates under

a conflict of interest.

We recently dealt with much the same argument in

Leger v. Tribune Co. Long Term Disability Benefit Plan, 557

F.3d 823 (7th Cir. 2009). There, the plaintiff claimed that

Glenn calls for “a more penetrating scope of judicial review

than has previously been utilized.” Id. at 830 (internal

quotation marks omitted). We held that “[o]ur study of

Glenn convinces us . . . that the decision is best read as

an extension of the Court’s previous decision in

Firestone . . . .” Id. at 831. We explained that 
No. 08-2617 13

[f]airly read, Glenn explains how the general principle

established in Firestone should be applied to the

more specific case in which responsibility for both

claim determinations and pay-outs is vested in the

same entity. In such a situation, a court is required

to take such an obvious conflict of interest into consideration—along with all of the other relevant

factors— in determining whether the entity’s determination was arbitrary and capricious. . . . [T]he Court’s

decision in Glenn did not create a new standard of

review—a “heightened arbitrary and capricious

standard”—for claims involving a conflict of interest.

Id.

The correct standard of review to be applied therefore

remains the arbitrary and capricious standard, but one

of the factors that must be taken into account in applying

that standard is any conflict of interest. See Tate v. Long

Term Disability Plan for Salaried Employees of Champion Int’l

Corp. # 506, 545 F.3d 555, 559 (7th Cir. 2008) (where an

ERISA plan gives discretionary authority to determine

eligibility for benefits, a denial of benefits is reviewed

under the arbitrary and capricious standard); see also

Jenkins v. Price Waterhouse Long Term Disability Plan, 564

F.3d 856 (7th Cir. 2009) (“This doesn’t make us a rubber

stamp . . . . [and] we remain cognizant of the conflict of

interest that exists when the administrator has both the

discretionary authority to determine eligibility for

benefits and the obligation to pay benefits when due.”).

Under the arbitrary and capricious standard, we will

uphold an administrator’s determination unless it is
14 No. 08-2617

“downright unreasonable.” Davis v. Unum Life Ins. Co. of

Am., 444 F.3d 569, 576 (7th Cir. 2006) (internal quotation

marks omitted). We have held that an administrator’s

determination will be upheld so long as it is possible to

offer a reasoned explanation, based on the evidence, plan

documents, and relevant factors that encompass the

important aspects of the problem. Sisto v. Ameritech

Sickness and Accident Disability Benefit Plan, 429 F.3d 698,

700 (7th Cir. 2005). Nevertheless, even under this deferential standard of review, the determination to deny

benefits and the termination procedure must comply with

the ERISA mandate 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.” Tate, 545 F.3d at 559 (quoting Halpin v.

W.W. Grainger, Inc., 962 F.2d 685, 688 (7th Cir. 1992))

(internal quotation marks omitted). We will not uphold

a termination of benefits if there is no support in the

record for the ultimate decision. Id. (citing Hackett v.

Xerox Corp. Long-Term Disability Income Plan, 315 F.3d

771, 774-75 (7th Cir. 2003)).

Fischer maintains that Liberty’s decision that he is

ineligible for benefits beyond 24 months is unreasonable

because his illness is the result of an organic brain

injury, and therefore he is not subject to the Plan’s

mental illness limitation. He urges that Liberty’s discontinuation of his benefits is presumptively arbitrary and

capricious because Liberty failed to follow its own

internal guidelines when it applied the mental illness

limitation to his case. He also insists that Liberty’s

decision is arbitrary and capricious because it ignored
No. 08-2617 15

objective evidence that demonstrates that his impairment is organic, not psychological.

If we were making an independent decision about

Fischer’s disability, his second argument would certainly

give us pause. The record, which we have recounted in

detail above, contains ample evidence that his illness

was in significant part organic. But we are not the finder

of fact here. The problem for Fischer is that the record

also contains reputable evidence that the sole cause of

Fischer’s disability (in the sense of his inability to

perform any job) was depression, a psychological disease.

What Fischer is essentially arguing is that Liberty’s decision can be upheld only if a preponderance of the

evidence, or something like that, supports it. As the

district court correctly recognized on reconsideration,

however, that is not the standard.

Measured against the arbitrary and capricious standard

of review, Fischer cannot prevail. The question, we

repeat, is whether Liberty’s decision to deny Fischer

benefits finds rational support in the record. It does. No

fewer than seven doctors concluded that the sole or

primary cause of Fischer’s disability was depression, a

psychological disease, not an organic disease. Three

doctors thought that his disability was exclusively psychological. In addition, one of the doctors who concluded

that the cause of Fischer’s impairment was psychological,

opined that the methodology employed by Fischer’s

treating physicians to diagnose him with an organic

brain disorder was flawed. In the face of this evidence,

Liberty’s determination cannot be branded as arbitrary
16 No. 08-2617

and capricious. This is not to say that the evidence compelled Liberty’s decision; it is merely to say that the evidence permitted it. While Fischer did present substantial evidence that his condition was organic, it was not

an abuse of discretion for Liberty to reject Fischer’s evidence in favor of contrary and, at least in Liberty’s

view, more compelling evidence.

This is not the type of case in which the Glenn conflict-ofinterest factor plays an important role. As we noted, the

Supreme Court in Glenn instructed that the presence of a

conflict will “act as a tiebreaker when the other factors

are closely balanced . . . .” Glenn, 128 S. Ct. at 2351. In

other words, “[w]hen the case is borderline . . . the

inherent conflict of interest that exists in so many of

these situations can push it over the edge—towards a

finding of capriciousness.” Jenkins, 564 F.3d at 861-62.

This is not a borderline case; in light of Liberty’s consideration of no fewer than thirteen expert opinions, it

is not possible to say that Liberty’s decision was even

close to “downright unreasonable.”

The judgment of the district court is AFFIRMED.

8-4-09