pain, but he failed to indicate any restrictions or limitations on
Bolden’s ability to work. Dr. Reeder again reviewed Bolden claim
file and concluded that Dr. Rubinstein had invalidly made his
diagnosis of Fibromyalgia, and that he had failed to substantiate
the claim of inability to work due to physical impairment. On
June 2, 2002, Unum notified Bolden that her appeal had been denied
and that she ha exhausted her appeal rights. Bolden now brings
her claim in this court under ERISA. Both parties have moved for
summary judgment.
DISCUSSION

According to Bolden’s psychiatrist, Dr. Ciganek, Bolden was
extremely impaired by symptoms of anxiety and depression. Based on
his findings Unum concluded that Bolden was impaired by mental
iliness and was disabled. Apparently this was the basis for
Bolden’s first appeal which was filed on March 12, 2002. Unum
reviewed the records and concluded that she had not proved that she
was physically disabled. It denied her first appeal by letter of
April 1, 2002. Bolden again appealed and this time supplemented
her appeal with a letter from Dr. Rubenstein. This appeal was
denied by Unum on June 3, 2002 and was based on a review by an Unum
reviewing physician, Dr. Thomas A. Reeder. He stated that in his
opinion, Dr. Rubinstein had not properly documented his diagnosis
of fibromyalgia and that Bolden had not submitted information that

would support the fact that she was unable to perform a sedentary



simply has not demonstrated that she was not capable of any gainful
employment to which she was reasonably fitted. While fibromyalgia
is a competent pain producing condition, it can be but is not
necessarily disabling. See, “Fibromyalgia and Exercise,”
www.familydoctor.org, Copyright 2001 by the American Academy of
Family Physicians. The cases cited by Bolden finding disability
resulting from fibromyalgia were based on specific medical evidence
submitted by the claimants in those cases and, therefore, do not
constitute binding precedent to be used by Bolden. Had Bolden
submitted similar evidence in support of her claim, the result
could well have been different.

CONCLUSION

Therefore based on a de novo review the cgurt finds that the

determination of Unum, the plan gdministrdtor is adequately
supported by a preponderance of the/evidenc@ in the record. The
Motion for Summary Judgment of the defendant, Unum, is granted and

the Motion for Summary Judgment of /Boldgn is denied.

IT IS SO ORDERED.

Hatéry D. “Leinenweber, Judge
( J. United States District Court
Date: a AlO3



inconsistent with those contained in the policy as to whether the
administrator has discretionary authority to determine disability.
The Certificate states that UNUM has “discretionary authority” to
determine eligibility for benefits and to interpret the terms and
provisions of the policy, which is sufficient under Herzberger, but
the policy itself states that an employee is disabled when “Unum
determines,” clearly insufficient under Herzberger. However the
Certificate itself contains language that causes the Policy
language to trump the Certificate language: “if the terms and
provisions of the certificate of coverage (issued to you) are
different from the policy (issued to the policyholder), the policy
will govern.” Thus, the court will apply de novo review of Unum’s
denial of benefits.

Under the de novo review the court has no trouble finding that
Bolden has substantiated that she is afflicted with fibromyalgia.
Her board-certified rheumatologist clearly diagnosed this condition
and it is this Court’s finding that Dr. Reeder’s criticism does not
stand up against the clearly stated diagnosis of the attending
physician and specialist. Dr. Reeder states that a rheumatologist
must find at least 11 out of 18 trigger points to make a diagnosis
of fibromyalgia and takes issue with Rubinstein because he did not
mention a specific number but mere stated that he found “multiple”

trigger points. This clearly amounts to nitpicking.



occupation. The evidence submitted by Bolden consisted of letters
from Dr. Golden and Rubinstein. Golden stated that Bolden’s
“activity was limited by virtue of chronic pain from fibromyalgia.”
Dr. Rubinstein did not opine on any limitations she might be
subject to.

The first issue is the standard of review to be exercised.
Bolden contends that it is de novo and Unum contends it is
arbitrary and capricious. The standard of review is determined by
the presence or absence of discretion on the part of the plan
administrator. If the administrator is granted discretion to
interpret or to apply the terms of the plan, judicial review is
curtailed and limited to cases where the administrator has acted
arbitrarily and capriciously. If no discretion is granted, the
court gives full plenary review of the decisions of the
administrator. Herzberger v. Standard Insurance Co., 205 F.3d 327,
330 (7th Cir. 2000). Herzberger holds that plan language granting
the plan administrator the power “to determine” eligibility does
not give the employee adequate notice that the administrator has
the power to make judgments largely unreviewable by the courts. On
the other hand, plan language that clearly grants the administrator
discretionary authority to make eligibility decisions are subject
to the arbitrary and capricious standard.

The administrative record contains the policy in question and,

as we have seen, the Certificate contains provisions that are



do. . . .” In response Unum received from Dr. Rubinstein a letter
dated May 1, 2002, limited to a statement of the basis for his
diagnosis of fibromyalgia. On May 13, 2002, Unum received a letter
from Dr. Rubinstein stating that he couldn’t add anything to his
May 1, 2002 letter, and on May 22, 2002, Unum received Rubinstein’s
office treatment notes, which indicated that on April 16, 2002,
Bolden “has trouble getting around - whole body aching; a.m.
stiffness.” On May 1, 2002, his notes indicate “FM unchanged.
Widespread pain.” These documents were reviewed by Dr. Reeder.
His conclusion was communicated to Bolden by letter dated June 3,
2002. In this letter Unum advised Bolden that, based on Dr.
Reeder’s review, it disagreed with the diagnosis of fibromyalgia
and that the additional documentation supplied did not confirm
impairment nor assess daily activities.

The policy clearly provides for a tougher standard for
disability extending disability coverage beyond 24 months. Prior
to that point the question for determination is whether the
claimant can perform the duties of her job. After 24 months, the
standard becomes much tougher, i.e., whether the claimant is
“unable to perform the duties of any gainful occupation for which
you are reasonable fitted by education, training or experience.”
(Emphasis supplied). Bolden wholly failed to provide any support,
prior to Unum’s final denial on June 3, 2002, that she came even

close to the policy definition of disability after 24 months. She



Minure Order fem (96/97)

So”

United States District Court, Northern District of Illinois

Name of Assigned Ju
or Magistrate Judge

Harry D. Leinenweber

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 02 C 6701 DATE 3/4/2003
CASE Rochelle Bolden vs. Unum Life Insurance Company of America
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
MOTION: of the motion being presented.)

DOCKET ENTRY:

a

a)

a
Gododaonddvuomvuodd

Filed motion of [ use listing in “Motion” box above.]
Brief in support of motion due
Auswer brief to motion due_ Reply to answer brief due.

Ruling/Hearing on setfor att

Status hearing{held/continued to] [set for/re-set for] on set for at
Pretrial conference[held/continued to] {set for/re-set for] on set for at

Trial[set for/re-set for] on at

(Bench/Jury trial] [Hearing] held/continued to at

This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
Orerced4on) O Local Rule dt. OO FRCP41(a)(1) OO FRCP41(a)(2).

(10) {Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: ‘The Motion for
Summary Judgment of the defendant, Unum, is granted and the Motion for Summary Judgment of Bolden
is denied.

dl @ {For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document
A : Number
No uiotices required suber of otioes
Notices mailed by judge's stat MAR 0 6 agg
Notified counse! by telephone. tte doekered
Y_ | Docketing to mail notices )
v¥ | Mail AO 450 form 4yuno9 ckiNink Aeputy initials
Copy to judge/magistrate judge. ines las‘
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initials:
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AO 450(Rey. 3/85) ludgment in a Civil Case

United States District Court
Northern District of Illinois

Fastern Division

Rochelle Bolden JUDGMENT IN A CIVIL CASE
v. Case Number: 02 C 6701
Unum Life Insurance Co. of America

Oo Jury Verdict. This action came before the Court for a trial by jury. The issues have been
tried and the jury rendered its verdict.

@ Decision by Court. This action came before the Court. The issues have been tried or
beard and a decision has been rendered.

IT IS HEREBY ORDERED AND ADJUDGED that the Motion for Summary Judgment of the
defendant, Unum Life Insurance Company of America is granted.

Michael |W. Dobbis?Clerk of Court

Date: 3/4/2003 Wa MLA

Wanda Parker, Deputy Clerk



However Reeder is on far more secure ground on his alternative
basis for denying coverage, i.e., that none of Bolden’s doctors had
opined about the nature and extent of her disability. Bolden
supported her first appeal with approximately 21 pages of medical
records from Dr. Gordon’s office. These records, reviewed for Unum
by Dr. Reeder, for the first time mentioned a possible diagnosis of
fibromyalgia, but Dr. Gordon failed to document this condition or
to describe any specific physical impairment or loss of functional
capacity that she might have. On April 1, 2002, Unum denied the
appeal with a three-page written letter, advising Bolden that Unum
found no medical evidence of impairment that precluded sedentary
capacity.

After April 23, 2002, Dr. Golden submitted a report, dated
April 17, 2002, that he had received from Dr. Rubinstein, which
clearly states that Bolden had fibromyalgia. Physical exams showed
that upon walking she favored her right leg. This was the only
described physical limitation. On April 24, 2002 Golden faxed a
letter to Unum stating that Bolden’s “activity is limited” by the
pain from fibromyalgia. He failed, however, to describe the extent
of the limitation. On April 26, 2002, Unum responded to Bolden
advising her that the medical information she submitted did not
provide “any restrictions and limitations” resulting from the
diagnoses. The letter concluded with a request that Bolden provide
Unum with any additional medical information, including from her
physician a list of “the activities you cannot and should not

-7-



disorder” and restricted her from work which he considered to be
the principal precipitant for her anxiety. Based on the 24-month
limitation of disability payments for mental illness, Unum advised
Bolden, by letter dated March 5, 2002, that it was denying benefits
after that date.

At that time, in addition to her psychiatric problems, Bolden
was complaining of a litany of other ailments, including
hypertension, anemia, asthma, knee pain, and fibromyalgia.
Apparently her first complaints of physical, as opposed to mental,
problems occurred in 2001 when she was examined for knee pain. She
was seen and treated by Dr. Steven Stern, an orthopedic specialist.
He concluded that she needed weight reduction (she apparently
weighted 250 pounds) and exercise. Dr. Stern had noted that she
walked without a limp and did not need surgery. Unum reviewed
these records and concluded that Bolden had provided Unum with
insufficient evidence of a physical impairment. It was on this
basis that her claim for continuation of benefits was denied.

Bolden requested her first appeal on March 12, 2002. Dr.
Thomas Reeder, Unum’s Medical Director, reviewed her entire claim
file and, based on his recommendation, Unum upheld its denial by
letter dated April 1, 2002. Bolden again appealed and at this time
submitted a letter from Dr. Golden and a report that he had
received from Dr. Herbert Rubinstein, a rheumatologist to whom Dr.
Golden had referred Bolden. Dr. Rubinstein diagnosed Bolden as
having fibromyalgia, a condition that limits activities due to

-3-



perform “the duties of any gainful occupation for which [the
employee is] reasonably fitted by education, training or
experience,” Unum will pay disability benefits for the period of
disability until the employee attains the age of 65 years.

In addition to the policy of insurance, Unum provides what it
describes as a “CERTIFICATE SECTION” which contains the following
language: “When making a benefit determination under the policy,
UNUM has discretionary authority to determine your eligibility for
benefits and to interpret the terms and provisions of the policy.”
The certificate also contains the following: “If the terms and
provisions of the certificate of coverage (issued to you) are
different from the policy (issued to the policy holder) the policy
will govern.” (See P. CC.FP-1 FOUND AT Administrative Record,
Vol. 1, UACL 00381) As we have seen, the policy itself merely
provides that a person is considered disabled “when Unum
determines” that he is. (See P. LTD-BEN-1 Found at Administrative
Record Vol. 1, UACL 00377)

From March 2, 2000 through March 1, 2002, Unum provided Bolden
with monthly disability benefits due to a psychiatric disability.
She claimed that she had been unable to work since December 8,
1999, due to stress, anxiety attacks, and hypertension. She
submitted two attending physician statements from her treating
physicians, Dr. William Ciganek, a psychiatrist, and Dr. Robert

Golden, an internist. Dr. Ciganek diagnosed her as having a “panic



IN THE UNITED STATES DISTRICT COURT,
FOR THE NORTHERN DISTRICT OF ILLINOTp= { L. Ee D
EASTERN DIVISION

MAR ~ 4 2003

ROCHELLE BOLDEN, JUDGE HARRY 0. LEINENWEBER

US. DISTRICT
Plaintiff, COURT JUDGE

Case No. 02 C 6701
v.
Hon. Harry D. Leinenweber
UNUM LIFE INSURANCE COMPANY OF
AMERICA,

ween,

Defendant. | a aed ial)

mag 6 2003
MEMORANDUM OPINION AND ORDER

The plaintiff, Rochelle Bolden (“Bolden”), was employed by
Northwestern Memorial Hospital (“Northwestern”) as a Senior
Financial Associate. The defendant, Unum Life Insurance Company of
America (“Unum”), issued a group long-term disability policy to
Northwestern, with its employees as beneficiaries. The parties
agree that the policy constituted a group employee benefit plan
which is subject to the Employee Retirement and Income Security Act
of 1974, 29 U.S.C. 1002 § (1). The policy provides a maximum
benefit period of 24 months for disabilities, including mental
illness and self=reporting, i.e., subjective, symptoms, that limit
the employee from performing “the material and substantial duties
of [the employee’s} regular occupation.” If the disability
continues beyond 24 months, is due to injury or sickness other than
mental illness or self-reported symptoms, and “Unum determines

that” due to the same sickness or injury, the employee is unable to