and emotionally” (R. 217). But he had also noted that he could
not ascertain “whether she would be able to return to work ina
different environment” at a later date (id.). Dr. Nutter later
reiterated his conclusion that it was unlikely Coles would be
able to return to work in her previous capacity (R. 123).

On the other hand, looking at the same results, Dr. Abramson
concluded that the data did not suggest that Coles could not
perform her occupation with a different employer (R. 156). And
Dr. Pearlman reached a similar conclusion, determining that
Coles’ cognitive impairment was the result of anxiety and that
despite a finding of moderate depression, her “job-related
anxiety” did not rise to a level of incapacitating severity to
warrant discontinuing her job entirely (R. 74, 76).

In such circumstances a variety of factors--including the

potential biases discussed in Nord as well as the individual

qualifications and competencies of each doctor (Nord, 123 S.Ct.
at 1971)*°--might influence whose opinions should carry more
weight in the evidentiary balance. Here we have the classic

“battle of the experts” that cries out for resolution by a

1 Dr. Sweet repeatedly suggests that Drs. Abramson and
Pearlman are incapable of correctly interpreting his findings
because they are psychiatrists attempting to analyze
psychological data (R. 49, 121). On the other hand, Dr. Pearlman
contends that even if psychiatrists are not trained to administer
psychological tests, they can still competently interpret them
(R. 74). Again that conflict goes to the credibility or weight
of the respective doctors' opinions, and as such its resolution
is reserved for a factfinder.

13



again denied Coles’ claim on November 8, 2002 (C. St. 55).

Finally, before bringing this action Coles again petitioned
LaSalle on December 3, 2002 (C. St. 462). That submission
included another rebuttal by Dr. Sweet questioning both the
findings and the validity of Dr. Pearlman’s report (L. St. 955;
R. 61). When LaSalle did not alter its previous determination
that Coles was not entitled to long term disability benefits
under the Plan (L. St. 59), Coles filed suit pursuant to Section
1132 (a) (1) (B).

Summary Judgment Standard

Rule 56 allows for summary judgment where there is no

genuine issue of material fact (Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986))--something that exists only if “a
reasonable jury could render a verdict for the non-moving party”

(Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001),

quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). Each movant bears the burden on her or its Rule 56
motion of proving that there are no material factual disputes
(Celotex, 477 U.S. at 322-23). In turn the court must “consider
the evidentiary record in the light most favorable to the non-
moving party...and draw all reasonable inferences in his favor”

(Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir.

2002)). Those requirements often present an insurmountable

hurdle when applied to cross-motions for summary judgment (Tevlin



employed by LaSalle was addressed in Nord, id., and it was
discarded there as balanced by the equally plausible notion that
a treating doctor might be biased in favor of a claimant. When
such possible biases cancel each other out, what remains is a
blank credibility slate on which to determine which doctor’s
conclusions are correct~-and that slate cannot of course be
written on at the summary judgment stage.

Coles also contends that LaSalle did not adequately consider
her favorable SSA disability determination. True enough, a SSA
disability determination may generally be considered in deciding
whether a claimant is disabled under a particular private plan’s

disability definition (Kirwan v. Marriott Corp., 10 F.3d 784, 790

n. 32 (llth Cir. 1994)). In some situations, for example where
all other uncontradicted evidence is in accord with the ruling of
the SSA, a failure to align a disability determination under an
ERISA plan with an SSA ruling of disability could justify summary
judgment in a plaintiff's favor (see, e.g., Ladd v. ITT Corp.,
148 F.3d 753, 755-56 (7th Cir. 1998)). But in other situations,
for example where all other uncontradicted evidence is
inconsistent with the ruling of the SSA, summary judgment may be
granted in a defendant's favor even where it has not considered

the SSA determination at all (Madden v. ITT Long Term Disability

Plan for Salaried Employees, 915 F.2d 1279, 1285 (9th Cir.

1990)).


That is exactly the type of language that Herzberger, id.
rejected as inadequate to remove a plan from the presumption of
de novo review.
Relatedly, Plan at 15 states:
The Plan Administrator® has authority to control and manage
the operation and administration of the Plan. The Plan
Administrator may terminate, suspend, withdraw or amend the
Plan, in whole or in part, at any time, subject to the
applicable provisions of the Policy.
Importantly, that list of activities as to which the Plan

Administrator has “authority to control and manage” does not

include Plan interpretation. Contrast Halpin v. Grainger, Inc.

962 F.2d 685, 688 (7th Cir. 1992) (emphasis added), which applied
an arbitrary and capricious standard where the Plan Administrator
had the power to “determine all questions arising in the
administration, interpretation and operation of the Plan.”
Moreover, the word “discretion” does not appear anywhere in

the clause. Again contrast Quinn v. Non-Contributory Nat‘) Long

Term Disability Prog., 113 F.Supp. 2d 1216, 1221 (N.D. Ill.

2000), which employed an arbitrary and capricious standard where
the plan administrator had the power to grant benefits when the
determination was “based on medical evidence satisfactory to the

Committee in its sole discretion.” While neither Firestone Tire

* [Footnote by this Court] Although this is not essential

to the determination that de novo review is proper, Plan at 15
specifies that while LINA conducts the claim evaluation process
and substantively decides whether benefits are due under the
Plan, LaSalle is designated as the Plan Administrator.

6



v. Metro. Water Reclamation Dist., 237 F.Supp.2d 895, 897 (N.D.

T1l. 2002)).
Standard of Review

Because the Plan is unquestionably an “employee welfare
benefit plan” as defined in Section 1002(1) (A), Coles is entitled
to seek judicial review of LaSalle’s final decision here (L. St.
493-4). Such review is de novo unless the plan reserves
discretion to the plan administrator to determine when benefits
are due or to interpret the plan provisions (Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Herzberger v.
Standard Ins. Co., 205 F.3d 327, 330 (7th Cir. 2000)). In the
latter event the court examines the record only to see whether
the plan administrator abused its discretion or was arbitrary and
capricious in reaching its decision (Firestone Tire, 489 U.S. at

109-11; accord, Fritcher v. Health Care Serv. Corp., 301 F.3d

811, 816 n.4 (7th Cir. 2002), which notes that those two more
lenient standards of review are interchangeable). For a plan to
convey enough discretion to a plan administrator to trigger the
more generous review, the plan “must contain language that...
indicates with the requisite if minimum clarity that a
discretionary determination is envisaged” (Herzberger, 205 F.3d
at 331).

Here Plan at 3 informs claimants that to receive benefits:

You must provide us, at your own expense, satisfactory
proof of Disability before benefits will be paid.



genuine issue of material fact remains as to LaSalle’s ultimate
conclusion that Coles is not entitled to benefits.

Claim Evaluation Process

First, Coles contends that LaSalle impermissibly failed to
give greater weight to the opinions of her treating doctors than
to the opinions of the non-examining consultant doctors.® But
only last Term Black & Decker Disability Plan v. Nord, 123 S. Ct.
1965, 1967 (2003) explicitly held that mandatory deference to
treating doctors is completely unwarranted. Nord, id. at 1971
recognizes that while the opinion of a treating physician may
sometimes be entitled to deference based on the doctor’s greater
understanding of a claimant’s condition, that is not always the
case. And any extra deference makes “scant sense” when--as is
the situation between Coles and Dr. Sweet--the doctor-patient
relationship was brief (id.).

In addition, Coles’ concern that the consulting doctors were

biased in favor of the benefits provider because they were

® As an aside, Coles’ assertion that Drs. Abramson and

Pearlman violated the ethical guidelines of the American Academy
of Psychiatry and the Law (attached to Coles’ Memorandum) by not
examining Coles personally is not only of dubious relevance but
is also incorrect. Those guidelines do not bar consultation in
the absence of personal examination. Instead their Section IV
Commentary says that such consultation is acceptable in certain
circumstances, so long as there is full disclosure of the lack of
personal examination in any ensuing report. Because Dr. Abramson
acknowledged that he performed only a “retrospective record
review” and Dr. Pearlman said that he did not examine Coles
himself (R. 154, 177), neither doctor violated the guidelines.

8



Minute Ordet Form (06/97)

United States District Court, Northern District of IMlinois

Name of Assigned Judge Milton L. Shadur Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 03 C 226 DATE 10/17/2003
CASE Arelene Coles vs. LaSalle Partners Inc.
TITLE

[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented]

qa)

MOTION:
DOCKET ENTRY:
ql) oO Filed motion of { use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
6) Oo Answer brief to motion due . Reply to answer brief due
@ a Ruling/Hearing on setfor___at. hy
(5) im} Status hearing[held/continued to] [set for/re-set for] on setfor at
(6) oO Pretrial conference[held/continued to] [set forlre-set for] on setfor at
(or) q Trial[set for/re-set for] on ___at
(8) Oo (Bench/Jury tria!] [Hearing] held/continued to at.
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CO) Local Rule 41.1 OFRCP41(a)(1) O FRCP4I(a)(2).
(0) +«<@f [Other docket entry] Enter Memorandum Opinion and Order. Because genuine issues of material

fact preclude summary judgment for either party, both motions are denied. (16-1, 23-1) This action is set
for a status hearing at 8:45 a.m. October 28, 2003 to discuss timing and procedures for trial of the case.

|_| [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required,
Notices mailed by judge’s staff.
Nolitied counsel by telephone.
Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
deputy’s
initials

SN

ral

Document
Number

suumber of notices .

CT 26 2003

Se mailed notice

SN

Date/tirne received in
central Cleri’s Office

sailing deputy initiats



reasoning behind the reasons”) and Nord, 123 S. Ct. at 1970
(rejecting the imposition of a heightened burden of explanation
on administrators who reject a treating doctor’s opinion)).

Did LaSalle weigh the evidence? Yes. Did LaSalle weigh the

evidence and come up with the correct answer? It cannot be said

at this point--only a factfinder can decide. With LaSalle having
provided the court with enough information to conduct an informed
ceview, but with that review having ascertained that numerous
factual disputes--examples of which are ticked off in the next
section of this opinion--still remain, LaSalle's determination is
inappropriate for summary judgment.
LaSalle's Decision

In the end a congeries of factual determinations contributed
to LaSalle’s decision to deny Coles benefits under the Plan
because she was not “continuously Disabled through the

Elimination Period” (R. 69).° Any genuine dispute as to one or

more of those factual determinations, if material to LaSalle’s

° Coles suggests (citing Halpin, 962 F.3d at 696) that

because LaSalle’s original denial was grounded in her lack of
objective data supporting disability, while its later denials
referred to her failure to be “continuously Disabled” for the
duration of the Elimination Period, LaSalle has improperly
attempted to change its justification for denial mid-review (R.
199, 135, 069). But unlike the situations in Halpin and in cases
triggering the similar “mend the hold” doctrine, here LaSalle's
later-offered justification--offering a substantive reason for
its denial of Coles' claim (a reason that will be for the
ultimate factfinder to evaluate) --was no worse than a logical
extension of LaSalle's earlier denial based on a claimed lack of
objective evidence.

11



Neither such a situation nor one having material similarity
is presented by this case. Instead, where as here the evidence
does not absolutely favor either side, an evaluation of LaSalle's
decision about how much weight to give a SSA determination (if
any) is more appropriately conducted during a factfinding trial
than at the summary judgment stage.

Both arguments just discussed are waystations en route to
Coles' overarching accusation that LaSalle did not weigh all
available evidence. That accusation fails. On that score
LaSalle must communicate specific reasons for its denial so that
this Court has enough information to conduct a meaningful review
of its decision (Section 1133(1); Halpin, 962 F.2d at 688-89).
And LaSalle has done that by providing Coles with a series of
denial letters detailing the findings of the evaluating doctors
and how those findings relate to its denial of benefits to Coles
(R. 197, 149, 081). While Coles might have liked more, the
letters demonstrate that LaSalle has weighed the evidence by
substantially complying with the specific-reasons requirement--at
least enough to avoid summary judgment in Coles’ favor on the

fact-intensive inquiry (Hackett v. Xerox Corp. Long-Term

Disabilty Income Plan, 315 F.3d 771, 775 (7th Cir. 2003); see

also Gallo v. Amoco Corp., 102 F.3d 918, 922 (7th Cir.

1996) (observing that while an administrator must give “specific

reasons” for its denial, “that is not the same thing as the

10


nor Herzberger specifically requires the use of the word

“discretion,” the omission of that term from the Plan's provision
surely suggests that it does not meet the Firestone Tire standard
(Herzberger, 205 F.3d at 331).’
Analysis of the Rule 56 Motions

Coles’ Rule 56 motion can be granted either (1) if the
process LaSalle used to evaluate her claim was improper or (2) if
no genuine issue of material fact bars a decision as a matter of
law that LaSalle reached the wrong conclusion as to Coles’
entitlement to benefits. In contrast, LaSalle’s motion can be
granted only if both (1) the process it used to evaluate Coles’
claim is proper and (2) no genuine issue of material fact bars a
decision as a matter of law that it reached the correct
conclusion as to Coles’ entitlement to benefits. As the ensuing
discussion shows, a de novo review of the record reveals that
neither party’s motion can be granted, because even though the

process LaSalle used to evaluate Coles’ claim was proper, a

7 Furthermore, the fact that “discretion” is explicitly

granted to LaSalle elsewhere in the Plan (see Plan at 7) triggers
the reasonable inference that the Plan's drafters made a
purposeful decision to omit the word (and its resulting
connotations) from the critical provision. Given the clear
roadmap to arbitrary-and-capricious review marked out by
Firestone Tire almost a decade and a half ago, no principled
basis exists for rescuing any plan's drafters from the
consequences of their failure to follow that path. Indeed, it is
really irresponsible on the part of LaSalle's counsel to purport
to find support for reading an arbitrary-and-capricious standard
into the Plan under Firestone Tire and Herzberger (L. Mem. 8).

7



opinions of Coles' internist Dr. Kolbaba, her treating
psychiatrist Dr. Nutter and a counselor had been considered (R.
197-200).

Coles appealed the denial on May 18, 2002 (Cc. St. 428). As
part of her appeal Coles underwent a neuropsychological
evaluation, including a battery of tests conducted by independent
psychologist Dr. Sweet (C. St. 929; L. St. 422). LaSalle also
contracted with a psychiatrist, Dr. Abramson, to conduct a peer
review of Dr. Sweet’s report (C. St. 436; L. St. §30). Based on
the new information provided by Drs. Sweet and Abramson in

conjunction with the earlier information from Drs. Nutter and

Kolbaba, LaSalle again denied Coles’ claim on August ,» 2002 (C.
St. 938).

Coles’ second appeal on September 11, 2002 included rebuttal
letters from Drs. Sweet and Nutter (C. St. 9941, 49) as well as a
notice from the Social Security Administration (“SSA”) advising
that her benefits had been approved based on a finding that she
was disabled as of September 15, 2001 (C. St. 952). To review
that appeal LaSalle contracted with still another psychiatrist,
Dr. Pearlman (L. St. 938), who reviewed Coles’ record and spoke

with Drs. Nutter, Sweet and Kolbaba (L. St. 4939). After

considering the entire battery of doctors’ opinions, LaSalle

response did not conform to that mistake, the numbers in the two
documents after the first C. St. 16 do not correspond (e.g., L.
Resp. §18 addresses C. St. $17).



factfinder (either the court in a bench trial or a jury, as the
case may be), not by a court operating within the strictures of

Rule 56. As Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1041

(7th Cir. 1993) (citations omitted) has put it:

Stripped down, this is a case of one party’s word
against the other....We cannot resolve the conflict
between these two positions without deciding which side
to believe. On summary judgment, a court can neither
make a credibility determination nor choose between
competing inferences. Rather, these are functions for
a jury.

Did Coles Satisfy the Elimination Period?

Even if Coles’ symptoms qualify her as “Disabled” within the
Plan’s definition, Plan at 3 specifies that she is entitled to
benefits only if she remains continually disabled for the
duration of the Elimination Period--90 days.*? Again the
dectors' opinions are all over the map on that score:

1. As early as September 25, 2001 Dr. Kolbaba observed

that Coles was showing dramatic improvement since she

11 There is some confusion about the length of the

Elimination Period. At times LaSalle measures the Elimination
Period as 182 days (L. St. 49), consistently with the copy of the
Plan that LaSalle submitted with its Rule 56.1 Statement. But
because the back page of that copy of the Plan indicates it is a
June 2002 edition, the Elimination Period listed there is not
controlling for Coles’ claim (Hackett, 315 F.3d at 774). In
contrast, Coles maintains that the Elimination Period is 90 days
(c. St. §14; Complaint Ex. A) and certain of LaSalle’s Rule 56.1
responses are consistent with that (L. Resp. 9411, 14). Moreover,
LaSalle's own materials consistently refer to a 90 day
Elimination Period (R. 11, 68, 133, 277). This opinion
accordingly assumes that the Elimination Period is 90 days,
though ultimate resolution of the issue may remain open for
decision at trial.

14



clarity. Even if the parties had agreed that Coles qualitatively
falls within the definition of Disabled under the Plan (which
they certainly have not), fundamental factual disputes still
remain about the duration of her depression or other cognitive
impairment that could give rise to long term disability benefits.
Conclusion

On the one hand, Coles' Rule 56 motion cannot be granted
because a de novo review of the record confirms the need to weigh
the evidence to determine whether she is or is not entitled to
long term disability benefits. On the other hand, LaSalle's
motion cannot be granted either for precisely the same reason.
As the parties should have known from the outset, the need for
Rule 56 purposes to view the evidence in the light most favorable
to the nonmovant has doomed both motions. Each is denied.*

This action is set for a status hearing at 8:45 a.m.
October 28, 2003 to discuss timing and procedures for trial of
the case. This Court reserves judgment as to whether any fee

shifting may be appropriate under the circumstances leading to

Milton I. Shadur
Date: October 17, 2003 Senior United States District Judge

*% That being so, considerations of awarding prejudgment

interest or attorney’s fees, as well as the debate over the
propriety of a “remand” to the Plan Administrator if the evidence
ultimately indicates that Coles qualifies for benefits under the
Plan, are all premature.

16


issues of material fact preclude summary judgment for either
party, both motions are denied.?
Facts

Coles began working as a Senior Tax Manager for LaSalle in
October 2000. About September 14, 2001 she ceased working and
applied for short term disability benefits (C. St. 913; L. St.
(8). In her application Coles claimed to suffer from depression
and anxiety, both of which were “exacerbated by work conditions”
(L. St. 98, R. 365). After an initial denial LaSalle* approved
Coles’ claim, and she was then paid short term disability
benefits through December 31, 2001 (L. St. 914).

By January 2002 Coles had not returned to work, and she
applied for long term disability benefits (C. St. 412). That

claim was denied on March 27, 2002 (C. St. §27)5 after the

been disputed either in whole or in part, the rest of the opinion
includes only ‘R.--”" references.

* Coles alternatively encourages this Court to render
judgment pursuant to Rule 52 if it finds a genuine issue of
material fact. But as C. R. Mem, 1-2 acknowledges, LaSalle has
not consented to such a procedure. In the absence of joint
consent, Rule 52 is simply unavailable (cf. Kearney v. Standard
Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc); Akhtar v.
Cont‘l Cas. Co., No. 01 C 7109, 2002 WL 500544, at *1 (N.D. Ill.
April 1)).

* Technically LINA (not LaSalle) administered the entire
claim evaluation procedure. But because all defendants submitted
their materials collectively, all are referred to here as
“LaSalle.”

° Cole's Rule 56.1 statement inadvertently repeated the

number “16” for two successive paragraphs. Because LaSalle's

2



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ARLENE COLES, )
)
Plaintiff, )
)
v. ) No. 03 C 226
)
LASALLE PARTNERS INCORPORATED )
DISABILITY PLAN, et al., ) DOCKETEp
) Ocr
Defendants. ) a 9 2003

MEMORANDUM OPINION AND ORDER

Arlene Coles (“Coles”) has sued her employer Jones Lang
LaSalle (“LaSalle”) and its insurance provider Life Insurance
Company of North America (“LINA”), a CIGNA company, pursuant to
ERISA (29 U.S.C. §§1001-1461)' to recover long term disability
benefits potentially due to her under an employee disability plan
(“Plan”) established by LaSalle. Both parties have moved for
summary judgment pursuant to Fed. R. Civ. P. (*Rule”) 56 and have

complied with this District Court's LR 56.1*. Because genuine

* ERISA provisions are cited “Section --,” using the

Title 29 numbering.
2 LR 56.1 requires the submission of evidentiary statements
and responses with the aim of highlighting which facts are
disputed and which are not. This opinion cites to the initial LR
56.1 statements as “C. St. 4--" and “L. St. 4--" and to the
responsive statements as “C. Resp. 4J--” and "“L. Resp. q--.”
Where an assertion in either party's LR 56.1 statement is
undisputed by its opponent, the opinion includes only a citation

to the original statement. “C.” and “L.” designations are also
used to refer to all other submissions by the parties. Citations
to the joint record are designated by “R.--.” For the Facts

section of this opinion, parallel citations to that record are
included only where they materially expand upon the parties’ Rul
56.1 submissions. But to avoid confusion as to which facts hay



ultimate decision, precludes summary judgment for both parties.
And that is the case here, as the ensuing highlighting of a few
of those disputes demonstrates.

Was Coles Disabled?

According to Plan at 12, Coles is “Disabled” if she is:

unable to perform all the material duties of [her] Regular

Occupation or a Qualified Alternative, even with Reasonable

Accommodation....

In that regard Dr. Sweet conducted a battery of tests to assess a
range of Coles’ skills, including cognitive functioning, learning
and memory, emotionality/personality functioning, depression,
anxiety and hopelessness (R. 190-94). Ultimately Dr. Sweet
reached a dual diagnosis of “Major Depressive Episode, Recurrent,
Moderate” and “Cognitive Disorder Not Otherwise Specified” (R.
193). While Coles and LaSalle essentially agree as to the
accuracy of those findings, they vigorously dispute how the
findings should be interpreted and how the findings relate to the
determination whether Coles is disabled or not according to the
Plan.

For example, Dr. Sweet concluded from his evaluation that
the results indicated that “Ms. Coles would not be very effective
at present if she returned to work” (R. 194). Dr. Nutter had
earlier (albeit without the benefit of Dr. Sweet’s data) reached
a similar conclusion that Coles was “unlikely to be able to

return to her previous work given its demands both cognitively

12



stopped working (R. 362).

2. Dr. Sweet noted in April 2002 that Coles had self-
reported that she no longer felt depressed but that since
January 2002 she was still experiencing problems with her
cognitive functioning (R. 189). But as late as August 2002
Dr. Sweet continued to maintain that he had “no reason to
believe that [Coles] was not continuously disabled since
leaving her position in September” (R. 122).

3. Dr. Abramson believed that the clinical data
supported a diagnosis of major depression from September 5,
2001 to December 4, 2001 but that no psychiatric condition
precluded Coles from working after December 4, 2001 (R.
155). That was based in part on Dr. Kolbaba’s notation of
dramatic improvement (incorrectly ascribed to Dr.

Nutter) (id.).

4. But Dr. Nutter asserted in August 2002 that while
Coles might have exhibited some improvement, “at no point
since October of 2001" had she “experienced remission from
her depression” (R. 123).

5. Finally, Dr. Pearlman reached an entirely different
conclusion that Coles’ depression and anxiety did not even
justify a leave of absence from work past September 17, 2001
R. 76).

What is crystal clear from all of that is its lack of

15