In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-4127

BRENDA MOTE,

Plaintiff-Appellant,

v.

AETNA LIFE INSURANCE COMPANY and

ARTHUR ANDERSEN LLP GROUP LONG TERM

DISABILITY INSURANCE PLAN,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 6212—Milton I. Shadur, Judge.

____________

ARGUED JUNE 5, 2007—DECIDED SEPTEMBER 12, 2007

____________

Before EASTERBOOK,Chief Judge, andMANION andWOOD,

Circuit Judges.

MANION, Circuit Judge. Brenda Mote sued Aetna Life

Insurance Co. (“Aetna”) and the Arthur Andersen LongTerm Disability Plan (the “Plan”) under the Employment

Retirement Income Security Act (“ERISA”), 29 U.S.C.

§ 1001 et seq., alleging that Aetna and the Plan arbitrarily

and capriciously terminated her disability benefit payments and that they should be estopped from terminating

her disability benefits because the Social Security Adminis-
2 No. 06-4127

1 Fibromyalgia is “pain and stiffness in the muscles and joints

that is either diffuse or has multiple trigger points.” Dorland’s

Illustrated Medical Dictionary 673 (29th ed. 2000).

tration found her “disabled” under its regulations. The

district court dismissed Mote’s claims against Aetna upon

finding that Aetna was not a proper party to the action,

denied Mote’s motion for summary judgment against the

Plan, and granted summary judgment to the Plan on all

of Mote’s claims against it. Mote appeals. We affirm.

I.

Brenda Mote was a human resource generalist with

Arthur Andersen LLP until she ceased working on April

10, 1998, due to back pain and physical complications,

including fibromyalgia,1

 stemming from an August 1997

accident. On the day that Mote stopped working for Arthur

Andersen, she applied for long-term disability benefits

under the Plan, which was administered by Aetna. The

Plan states that for purposes of ERISA, Aetna shall act as

the Plan’s fiduciary and be vested with “discretionary

authority” both to “determine whether and to what

extent employees and beneficiaries are entitled to benefits;

and construe any disputed or doubtful terms of this

policy.” Specifically, Mote applied for long-term disability

benefits under the Plan’s “own occupation” definition of

disability. That provision states that an employee is “totally

disabled” if the insured employee is unable “[d]uring the

first 5 years of disability to perform the material duties of

the employee’s own occupation.” The Plan approved

Mote’s application, and on July 10, 1998, she began receiving long-term disability benefits. Following the Plan’s
No. 06-4127 3

approval of her application, Mote continued to receive

medical care for her back pain and fibromyalgia, and the

Plan periodically reassessed her condition to ensure that

she remained eligible for long-term disability benefits.

After Mote had been receiving long-term disability

benefits for five years, on December 8, 2003, the Plan

notified her that it recently had reevaluated her claim

under its stricter, five-year definition of “totally disabled”

and determined that she no longer qualified for long-term

disability benefits. Under the Plan, while an employee

only needs to demonstrate that he is unable to “perform

the material duties of [his] own occupation” during the

first five years of his disability, after five years the employee must demonstrate that he is unable to “work at any

occupation for which [he] is, or may reasonably become,

fitted by education, training or experience.” In its letter to

Mote, the Plan stated that it reached its decision after

reviewing the office notes of Mote’s treating physicians,

various lumbar MRIs, CT scans, and surgical procedures,

as well as statements by Mote’s physicians regarding her

physical limitations and restrictions. The letter also informed Mote that the Plan had hired an independent

investigator who, in January 2003, videotaped her engaging in activities that she stated on her April 30, 2003,

Claim Questionnaire that she was unable to perform. The

Plan’s letter further stated that it based its decision on the

results of Mote’s November 11, 2002, functional capacity

examination and her September 15, 2003, independent

medical examination, both of which found that Mote was

capable of performing sedentary work. The letter also

noted that the Plan’s consulting physicians reviewed

Mote’s medical information on two recent occasions and

reached the same conclusion.
4 No. 06-4127

Mote requested that the Plan review its decision. In

support of her request for review, Mote submitted additional medical evidence from her treating physicians,

including her primary care physician, Terry West, M.D.,

and her pain management specialist, James Gruft, M.D. Dr.

West opined that Mote was suffering from a “class 5”

physical impairment, which rendered her “incapable of

minimal (sedentary) activity.” He further noted that, in his

opinion, “maximum medical improvement has [been]

achieved. I don’t believe she can ever work again.” In a

letter dated August 10, 2004, Dr. West stated that Mote

suffers from fibromyalgia and chronic back pain, which

remain unchanged, and he concluded that Mote “is still

unable to work at this time, due to limitations of motion

and need for sedating pain medication.” Dr. Gruft also

opined that Mote was incapable of sedentary activity,

and that he believed that Mote’s condition had “retrogressed.”

Upon its receipt of Mote’s additional information, the

Plan informed Mote that it referred her file for an independent medical review. The Plan retained William Hall,

M.D., to conduct its review. In his September 2, 2004,

report, Dr. Hall stated that he reviewed Mote’s medical

history and opined:

I must conclude that the weight of the medical credibility be given to the opinions of [Mote’s] treating physicians and that, absent medical or personal information regarding [Mote] to the contrary, her subjective

musculoskeletal symptoms are of such severity to

be totally medically limiting.

However, during his initial review of Mote’s medical

records, Dr. Hall was unaware of the videotaped evidence

of Mote’s daily activities that the Plan obtained from its
No. 06-4127 5

2 The Plan’s letter of December 8, 2003, indicates that it based its

decision to terminate Mote’s benefits on the Plan’s stricter, fiveyear definition of “totally disabled.” Specifically, that letter

states: “Our review of the information in our file indicates

you have the functional capacity to perform the material

duties of any occupation and you no longer meet the plan

requirements for total disability.” The Plan’s letter of September

28, 2004, indicates that the Plan is “upholding [its] termination

on December 8, 2003,” and it cites both the initial and five-year

definitions of “totally disabled.” However, the Plan’s second

letter then states that Mote’s long-term benefits “ceased on

(continued...)

independent investigator. The independent investigator

recorded the videotapes between January 29, 2003, and

February 4, 2003. Dr. Hall subsequently viewed selected

portions of the videotapes, which showed Mote running

errands, driving an elderly relative to doctors’ appointments, and loading groceries into her car. Upon reviewing

the videotape evidence of Mote’s functional abilities,

Dr. Hall changed his opinion regarding Mote’s level of

disability, stating:

After viewing surveillance videos of [Mote’s] activities

for the dates and durations noted, I do not agree with

assessments of severity or with medically limiting

conclusions by [Mote’s] treating physicians. I am not

able to identify an objective or absolute impediment

to [Mote] pursuing sustained and otherwise unrestricted activities at a light level of exertion.

In a letter dated September 28, 2004, the Plan notified

Mote that, after a “full and fair review of the decision to

terminate [her] claim,” it was upholding its decision to

terminate her long-term disability benefits.2

 The Plan’s
6 No. 06-4127

2 (...continued)

December 8, 2003, after it was assessed you are capable of

performing your own sedentary occupation.” The Plan argues

that the reference to Mote’s own occupation in the second letter

was a scrivener’s error, and that Mote was apprised adequately

of and able to respond to the stricter five-year definition set

forth in the first termination letter. We agree that the Plan’s

letter of December 8, 2003, adequately notified Mote that the

Plan’s termination of her benefits—which occurred exactly

five years after it originally approved her claim—was based on

the five-year definition, and provided Mote with an opportunity

to submit additional evidence challenging the Plan’s decision

under that definition of “totally disabled.” The fact that the

Plan erroneously cited the wrong definition of “total disability”

in its final denial letter was inconsequential because that letter

merely informed Mote that the Plan had affirmed its decision to

deny her claim following its review of its earlier decision, which

the parties do not dispute was based on the five-year definition.

Accordingly, the Plan’s scrivener’s error in the second letter

does not warrant remand to the plan administrator. See

Schleibaum v. Kmart Corp., 153 F.3d 496, 503 (7th Cir. 1998).

3 The dissent asserts that the Plan’s letter to Mote of September

28, 2004, adds entirely new language to the Plan. The “entire

new language” that it quotes is a sentence lifted from a threepage letter explaining, after an “independent, full and fair

review,” why the Plan is upholding its decision to terminate

Mote’s claim for long-term disability benefits. The language that

the dissent quotes is not an addition of entirely new language

to the Plan, and when taken out of context, it misconstrues

(continued...)

letter cited a long list of materials that it reviewed in

reaching its decision, and stated that “the weight of the

medical information does not support a condition of total

disability.”3

 Mote then filed suit against both the Plan and
No. 06-4127 7

3 (...continued)

the text of the Plan’s letter. Also, the dissent does not mention

that the sentence that it quotes is surrounded by a full analysis

detailing the Plan’s rationale for its prior decision and the

medical evidence Mote presented for reconsideration. Following

the quoted statement, the Plan’s letter goes on to express its

rationale for denying the request for reconsideration. When read

in context, it is clear that the quoted statement does not indicate

that the Plan began its analysis with the premise that reported

pain can never be enough.

Aetna, claiming that they improperly terminated her longterm disability benefits. The district court dismissed Aetna

as an improper party, denied Mote’s cross-motion for

summary judgment, and granted the Plan’s cross-motion

for summary judgment. Mote appeals.

II.

We review a district court’s decision on summary

judgment de novo. Davis v. Unum Life Ins. Co. of Am., 444

F.3d 569, 574 (7th Cir. 2006) (citations omitted). “Summary

judgment is proper when the ‘pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.’ ” Tegtmeier v.

Midwest Operating Eng’rs Pension Trust Fund, 390 F.3d 1040,

1045 (7th Cir. 2004) (quoting Fed. R. Civ. P. 56(c)). “With

cross-motions, our review of the record requires that

we construe all inferences in favor of the party against

whom the motion under consideration is made.” Id.

(quotations and citations omitted).
8 No. 06-4127

On appeal, Mote first argues that the Plan’s decision

to stop paying her benefits after finding that she did not

meet the stricter five-year definition of “total disability”

was arbitrary and capricious. In Firestone Tire & Rubber v.

Bruch, 489 U.S. 101 (1989), the Supreme Court held that “ ‘a

denial of benefits challenged under § 1132(a)(1)(B) is to be

reviewed under a de novo standard unless the benefit

plan gives the administrator or fiduciary discretionary

authority to determine eligibility for benefits or to construe the terms of the plan.’ ” Diaz v. Prudential Ins. Co. of

Am., 424 F.3d 635, 636-37 (7th Cir. 2005) (quoting Firestone,

489 U.S. at 115). “When, as here, the terms of an employee benefit plan afford the plan administrator broad

discretion to interpret the plan and determine benefit

eligibility, judicial review of the administrator’s decision to

deny benefits is limited to the arbitrary-and-capricious

standard.” Davis, 444 F.3d at 575 (citing Sisto v. Ameritech

Sickness & Accident Disability Benefit Plan, 429 F.3d 698, 700

(7th Cir. 2005)).

Under the arbitrary and capricious standard, “we will

overturn a plan administrator’s decision ‘only . . . if it is

downright unreasonable.’ ” Herman v. Cent. States, Se. & Sw.

Areas Pension Fund, 423 F.3d 684, 692 (7th Cir. 2005) (quoting Carr v. Gates Health Care Plan, 195 F.3d 292, 294 (7th Cir.

1999) (internal quotation omitted)). “That is, this court

will not substitute the conclusion it would have reached

for the decision of the administrator, as long as the administrator makes an informed judgment and articulates an

explanation for it that is satisfactory in light of the relevant facts.” Id. (internal quotations and citations omitted).

We previously have noted that “ ‘[r]eview under the

deferential arbitrary and capricious standard is not a

rubber stamp,’ so that, ‘[e]ven under the deferential re-
No. 06-4127 9

view we will not uphold a termination where there is

an absence of reasoning in the record to support it.’ ” Id. at

693 (quoting Hackett v. Xerox Corp. Long-Term Disab. Income,

315 F.3d 771, 774-75 (7th Cir. 2003)). “A satisfactory

explanation is one that gives ‘the specific reasons for the

denial,’ but it need not explain ‘the reasoning behind the

reasons, . . . [that is,] the interpretive process that generated the reason for the denial.’ ” Id. (quoting Gallo v.

Amoco Corp., 102 F.3d 918, 922 (7th Cir. 1996) (internal

quotation omitted)). Further, we have found that “[t]he

administrator of a pension fund does not act arbitrarily

and capriciously when he changes a previous decision

because the facts known to the plan have changed; ‘[p]ut

simply, a reversal based on new information is not a nonuniform interpretation.’ ” Id. (quoting Militello v. Cent.

States, Se. & Sw. Areas Pension Fund, 360 F.3d 681, 690 (7th

Cir. 2004)).

In this case, Mote first argues that the Plan’s decision

was arbitrary and capricious because there was no evidence in the record that her condition improved. Mote

contends that a finding of improvement is necessary

because the Plan actually terminated her benefits under the

“own occupation” definition of “totally disabled,” rather

than the five-year, “any occupation” definition. Thus,

she reasons that if the Plan found that she could not

perform her position as a human resource generalist in

1998, and there is no evidence that her chronic back pain

or fibromyalgia had improved, then the Plan had no basis

for terminating her benefits. As discussed above, the

totality of the evidence indicates that the Plan terminated

Mote’s benefits based on the five-year, “any occupation”

definition. See supra, at n.1. Because that definition differs

significantly from the more lenient “own occupation”
10 No. 06-4127

definition, we find that even if Mote’s condition did not

improve over the five-year period she was receiving

disability benefits, that is not determinative of whether

she was “totally disabled” under the five-year definition.

Accordingly, we evaluate whether the Plan arbitrarily

and capriciously evaluated the evidence before it in

making its determination that Mote was capable of performing some occupation, rather than merely her previous

occupation.

Mote next asserts that the Plan did not properly weigh

her treating physicians’ opinions in reaching its termination decision. Mote’s argument is unavailing, however,

because “ERISA does not require plan administrators to

accord special deference to the opinions of treating physicians.” Kobs v. United Wis. Ins. Co., 400 F.3d 1036, 1039 (7th

Cir. 2005) (citations omitted). Further, courts may not

“impose on plan administrators a discrete burden of

explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.” Davis, 444

F.3d at 578 (quoting Black & Decker Disability Plan v. Nord,

538 U.S. 822, 834 (2003)). We also have recognized that

“[m]ost of the time, physicians accept at face value what

patients tell them about their symptoms; but insurers . . .

must consider the possibility that applicants are exaggerating in an effort to win benefits (or are sincere hypochondriacs not at serious medical risk).” Leipzig v. AIG Life

Ins. Co., 362 F.3d 406, 409 (7th Cir. 2004). Accordingly, the

Plan did not act improperly when it looked to, and credited, evidence that conflicted with Mote’s treating physicians’ opinions as part of its deliberative process in evaluating her claim.

Mote further argues that the Plan’s reviewing doctors’

opinions regarding her condition were unreliable and
No. 06-4127 11

rendered the Plan’s decision arbitrary and capricious.

Specifically, Mote takes issue with the fact that none of

the Plan’s physicians consulted a rheumatologist with

specialized expertise in fibromyalgia, nor did the Plan

contact her treating physicians to discuss her fibromyalgia.

As a threshold matter, an ERISA plan is not required to

hire specialists for every claimed malady in cases in

which the plan hired an independent expert to conduct a

physical examination of the claimant. In this case, the

Plan hired an independent expert, orthopedic surgeon

Richard Tuttle, M.D., to examine Mote. The record indicates Dr. Tuttle conducted an “18 tender points” examination of Mote to assess her fibromyalgia, which was

the same test that Mote’s own physician, Dr. Gruft, conducted. While Mote seeks to impose a requirement on the

Plan to consult with her treating physicians, the record

reveals that Dr. Gruft is a pain management specialist

and not a rheumatologist, and that Lee Lichtenberg, M.D.,

who is a rheumatologist, only examined Mote once.

Moreover, nothing in the record indicates that Mote’s

primary care physician, Dr. West, has any particular

expertise in fibromyalgia. In addition to hiring Dr. Tuttle to

examine Mote, the Plan also relied upon the opinions of

William Hall, whose specialty is unknown, and Paul

Radford, an occupational medicine specialist. While neither

of these consultants is a rheumatologist, the fact remains

that Mote sought long-term disability benefits on grounds

other than fibromyalgia, including chronic back pain,

migraine headaches, and irritable bowel syndrome, all of

which Drs. Tuttle, Hall and Radford are just as qualified

to opine about as Mote’s treating physicians. Accordingly, we do not find that the Plan’s reliance on the opinions of Drs. Tuttle, Hall and Radford, in conjunction with

the treating records of Mote’s own physicians, as well as
12 No. 06-4127

4 On appeal, Mote also raises for the first time the following

arguments: (1) that Dr. Radford was not qualified to render an

opinion because he is an occupational medicine specialist;

(2) that Dr. Tuttle did not have the entire record to review before his independent medial examination; and (3) that Drs.

Tuttle, Radford, and Hall were opining outside their respective

scopes of expertise when they determined that Mote could work

at a sedentary occupation. Because Mote failed to raise those

arguments in the district court, she has waived her opportunity

to raise them at this stage. Taubenfeld v. AON Corp., 415 F.3d 597,

599 (7th Cir. 2005) (citing Heller v. Equitable Life Assurance Soc’y,

833 F.2d 1253, 1261-62 (7th Cir. 1987) (“On numerous occasions

we have held that if a party fails to press an argument before the

district court, he waives the right to present that argument on

appeal . . . . As we have made clear, it is axiomatic that arguments not raised below are waived on appeal.” (citations and

quotation marks omitted))).

other outside evidence gathered during its deliberative

process, rendered its decision either arbitrary or

capricious.4

Next, Mote argues that Dr. Hall’s and Dr. Radford’s

opinions are suspect simply because the Plan hired them.

Mote’s assertion that the Plan’s employees or its consultants had an incentive to deny her claim is without support

in the record. As we recognized in Leipzig v. AIG Life

Insurance Co., “most insurers are well diversified, so that

the decision in any one case has no perceptible effect on the

bottom line,” and thus “[t]here is correspondingly slight

reason to suspect that they will bend the rules,” absent

suspect circumstances such as “an insurer or plan administrator pay[ing] its staff more for denying claims than

for granting them.” 362 F.3d at 409 (citing Perlman v. Swiss

Bank Corp., 195 F.3d 975, 980-81 (7th Cir. 1999)). As we have
No. 06-4127 13

stated previously, ERISA “plan administrators have a

duty to all beneficiaries and participants to investigate

claims and make sure to avoid paying benefits to claimants

who are not entitled to receive them.” Davis, 444 F.3d

575 (citations omitted). Accordingly, the Plan would have

been remiss if it did not investigate Mote’s long-term

disability claim, and its use of independent experts and

medical consultants not only was justified, but consistent with its duty to investigate.

Mote also asserts that the Plan’s reliance on the results of

her November 11, 2002, functional capacity examination

(“FCE”) was unreasonable. In his report, the FCE evaluator

concluded that Mote “is currently capable of working at

the sedentary physical demand level within the material

handling and positional tolerances set forth in the report,

of an eight hour day.” Despite that conclusion, Mote

asserts that the FCE evaluator’s opinion was not supported by the evaluation findings regarding her severe

pain, and that the Plan “cherry-picked” selected portions

of the FCE report to justify its termination of her long-term

disability benefits. Her argument fails, however, because the Plan never stated that the FCE was the deciding factor in its decision. Rather, the Plan advised Mote

that it considered that FCE in tandem with Dr. Tuttle’s

September 15, 2003, independent medial examination. The

Plan’s December 8, 2003, letter also advised Mote that both

examinations revealed that she possessed greater physical

capability than that stated in her subjective medical

history, and that both examinations supported a conclusion that she could work at a sedentary position for a eighthour work day. Accordingly, we find that the Plan’s

consideration of Mote’s November 11, 2002, FCE as one

component of its deliberative process did not make its
14 No. 06-4127

decision to terminate Mote’s long-term disability benefits

either arbitrary or capricious.

Mote then contends that Dr. Hall’s opinion is suspect

because he changed his conclusion after viewing the

videotape snippets of her daily activities and that the

Plan’s consideration of the videotapes during its deliberative process was improper. These argument also are

without merit. In Shyman v. Unum Life Insurance Co., 427

F.3d 452 (7th Cir. 2005), we considered an ERISA plan’s

denial of benefits decision, which partially was based on

evidence gathered by a private detective that contradicted claimant’s disability claims. Id. at 456. We did not

object to the plan’s surveillance of the claimant, and we

held that the plan’s denial decision was neither arbitrary

nor capricious. Id.; see also Dougherty v. Indiana Bell Telephone Co., 440 F.3d 910, 917 (7th Cir. 2006) (upholding

ERISA plan’s decision to terminate disability benefits

after surveillance videotape showed the claimant engaging in normal, everyday activities, such as driving his car

and hauling shopping bags). Mote attempts to distinguish

these cases by arguing that the videotapes in this case do

not contain evidence contradictory to her treating physicians’ diagnoses, and thus the Plan could not reasonably have relied upon them in its deliberative process.

The evidence in the record, however, rebuts Mote’s argument. For example, Dr. Gruft opined that Mote “cannot

operate a motor vehicle,” but the videotape shows Mote

doing just that. The videotapes also contradict Dr. Gruft’s

claim on his December 11, 2003, Functional Capacity

Worksheet that Mote could “never climb, crawl, kneel,

move repeatedly or stoop,” but the surveillance videotape

shows her kneeling, moving repeatedly, and stooping. In

short, the videotapes show Mote engaging in many of the
No. 06-4127 15

5 The dissent takes issue with the Plan’s use of portions of the

surveillance videotapes, and attempts to draw conclusions

regarding Mote’s activities depicted on the videotapes. As the

parties indicated during oral argument, neither the snippets of

the videotapes viewed by Dr. Hall, nor the raw footage, are in

the record. We are thus unable to review either set of videotapes

to determine whether the parties’ representations regarding

the substance of those videotapes are accurate. What is in the

record, however, are Dr. Hall’s statements regarding their

content after he reviewed them, as well as the records from the

investigators who conducted the surveillance. Based on those

memorialized accounts in the record, there is ample evidence

that the activities in which Mote engaged conflicted with her

representations regarding her functional abilities. Even if this

(continued...)

activities that she claimed to be unable to accomplish in her

application for long-term disability benefits and, consequently, the Plan properly considered them. Further, Dr.

Hall was justified in altering his opinion regarding

Mote’s ability to work after viewing the videotapes,

because Mote’s activities on the videotapes were exactly

the type of additional, contrary evidence upon which he

conditioned his original opinion when he stated that,

“absent medical or personal information regarding

[Mote] to the contrary, her subjective musculoskeletal

symptoms are of such severity as to be totally limiting.”

Finally, the record reflects that the Plan relied upon the

videotapes merely as one piece of the puzzle in its deliberative process and, while they may have altered the

outcome, they were not the sole basis for the Plan’s denial

of Mote’s claim. Accordingly, we find that the Plan’s use

of the videotape evidence of Mote’s physical capacity did

not render its decision either arbitrary or capricious.5
16 No. 06-4127

5 (...continued)

is a close call, there is insufficient contrary evidence to conclude that the evidence presented on the videotapes rendered

the Plan’s decision arbitrary and capricious.

Moreover, if Mote believed that the portions of the surveillance videotapes relied upon by the Plan were not representative of her functional abilities, or if she believed the videotapes

had been edited to omit evidence that supported her claim,

she was free to submit that evidence to the court. Mote elected

not to submit any portion of the surveillance videotapes, and

thus it is not a proper function of this court to speculate on what

the videotapes may or may not have shown.

Mote further argues that the Plan was estopped from

asserting that she was not totally disabled because the

Social Security Administration (“SSA”) later found Mote to

be disabled under its standards. Mote, however, ignores

the fact that the Plan’s five-year definition of “totally

disabled,” and the standard used in other ERISA

plans, is not the same as the standard used for evaluating disability under the Social Security Act, 42 U.S.C.

§ 423(d)(1)(A). See Nord, 538 U.S. at 833 (“In determining

entitlement to Social Security benefits, the adjudicator

measures the claimant’s condition against a uniform set

of federal criteria. ‘[T]he validity of a claim to benefits

under an ERISA plan,’ on the other hand, ‘is likely to

turn,’ in large part, ‘on the interpretation of terms in the

plan at issue.’ ” (quoting Firestone, 489 U.S. at 115)). We

previously have stated that a court may consider SSA

determinations as relevant, and an SSA decision could

be binding if an ERISA plan specifically includes SSA

disability as a condition of plan disability. Reich v. Ladish

Co., 306 F.3d 519, 524-25 (7th Cir. 2002). The Plan, however,

did not include any provisions regarding SSA decisions
No. 06-4127 17

in its policy. Further, even if the SSA’s decision could

have had some bearing on the Plan’s decision, the Plan

was unable to consider it because the SSA did not award

benefits to Mote until May 24, 2005, eight months after the

Plan issued its decision. See Tegtmeier, 390 F.3d at 1046

(“While Social Security decisions, if available, are instructive, these determinations are not dispositive . . . .” (emphasis added)). Accordingly, the 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 months after the Plan issued its final decision to

terminate Mote’s long-term disability benefits.

Finally, Mote contends that the district court erred by

dismissing her claims against Aetna upon its finding

that Aetna was not a proper party to the action. She asserts

that she should be able to sue both her employer’s ERISA

plan (i.e., the Plan) and the Plan’s administrator, Aetna.

Generally, in a suit for ERISA benefits, the plaintiff is

“limited to a suit against the Plan.” Blickenstaff v. R.R.

Donnelley & Sons Co. Short Term Disability Plan, 378 F.3d

669, 674 (7th Cir. 2004). While we have allowed plaintiffs

in ERISA cases to sue an ERISA plan administrator in

some limited instances, the operative facts of those cases

differ from those in this case. For instance, in Riordan v.

Commonwealth Edison Co., 128 F.3d 549, 551 (7th Cir. 1997),

we permitted a plaintiff to sue the plan administrator to

recover ERISA benefits because the employer failed to

raise the issue in the district court and the plan documents referred to the employer and the plan interchangeably. Neither of those pivotal facts is present here. Similarly, in Mein v. Carus Corp., 241 F.3d 581 (7th Cir.

2001), we allowed a plaintiff to sue his employer to recover ERISA benefits because the employer and the plan
18 No. 06-4127

were closely intertwined. Id. at 584-85. We are not faced

with that situation in this case, since Aetna was not Mote’s

employer and the Plan’s policy distinguishes between the

Plan, the employer, and Aetna. We thus find that the

district court did not err in dismissing Aetna from the

suit because it was not a proper party to the action.

III.

The district court properly entered summary judgment

for the Plan and denied Mote’s motion for summary

judgment because the Plan’s decision to terminate Mote’s

long-term disability benefits was neither arbitrary nor

capricious, and because the Plan was not estopped from

terminating Mote’s benefits based upon the Social Security

Administration’s subsequent finding that Mote was

disabled under its regulations. The district court also

properly dismissed Mote’s claims against Aetna because

Aetna was not a proper party to the action. Accordingly,

the district court’s judgment is AFFIRMED.

WOOD, Circuit Judge, concurring in part and dissenting

in part. In fact-specific cases like this one, the court of

appeals is usually de facto the last stop on the road for the

litigants. It is thus critical that we get the facts right, even

if we agree on the governing legal standards. Here, although I agree with the majority’s assessment of the claims
No. 06-4127 19

against Aetna, the administrator of the plan at issue,

I must part ways with its evaluation of Brenda Mote’s

claims against the long-term disability plan (“the Plan”).

According to Mote’s treating physicians and other specialists, since at least 1998 she has suffered from fibromyalgia,

migraines, a sleep disorder, depression, and pain throughout her body. From 1998 to 2003, she received benefits

from the long-term disability plan sponsored by her

former employer, Arthur Andersen. In 2003, Mote’s

disability benefits were terminated because the length of

Mote’s disability triggered a shift in the applicable standard for disability, from the earlier one in which she

needed to show that she could not perform her own job, to

the more stringent one in which she needed to show

that she could not perform any work at all. Mote appealed

the decision, but the Plan affirmed itself. Mote then filed

this suit in federal court, alleging that the Plan’s decision

to terminate her benefits was arbitrary and capricious.

Although arbitrary and capricious review ties our hands

considerably, it is “not a rubber stamp.” Hackett v. Xerox

Corp. Long-Term Disability Income Plan, 315 F.3d 771, 774

(7th Cir. 2003). We have held that a benefits plan governed by ERISA “must weigh the evidence for and against

[a benefits determination], and within reasonable limits,

the reasons for rejecting evidence must be articulated.”

Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 695 (7th Cir.

1992) (internal quotation marks omitted). Further, “ERISA

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. at 688.

I see two significant problems in the Plan’s consideration of Mote’s appeal, either one of which would require
20 No. 06-4127

reversal even under arbitrary and capricious review. First,

in denying Mote’s appeal on September 28, 2004, the

Plan made the following statement: “Reported pain also

cannot be relied upon as [a] sufficient indicator of functional impairment since perception of pain may be affected by individual tolerance, motivation or psychological

factors.” Perhaps if this plan had language in it to that

effect, that conclusion might be acceptable. But most plans

do not, and this one is no exception. To the contrary,

section VII, which includes the governing definitions for

the Plan, says only that “total disability/totally disabled”

means

that solely because of an illness, pregnancy or accidental bodily injury, an insured employee is unable:

(1) [d]uring the first 5 years of disability to perform

the material duties of the employee’s own occupation;

and (2) [f]rom then on, to work at any occupation for

which such employee is, or may reasonably become,

fitted by education, training or experience. The availability of employment will not be considered in the

assessment of the employee’s disability.

Plan, sec. VII, ¶ 29. In other words, the Plan takes a functional approach to disability. It does not forbid an employee from showing functional incapacity through selfreported symptoms. The ability to “interpret” cannot mean

the ability to add entirely new language to plans. In my

view, Mote’s case is indistinguishable from another

ERISA case involving fibromyalgia, in which we held

that subjective reports of pain can suffice to show one’s

complete disability. Hawkins v. First Union Corp. Long-Term

Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003). The Plan

therefore made an error of law, or behaved arbitrarily and

capriciously, in its analysis. Although it was entitled to
No. 06-4127 21

1 My colleagues believe that the Plan’s letter of September 28,

2004, taken as a whole, does not rest on the premise that

reported pain can never be enough, but I see nothing in the letter

that qualifies the statement quoted above. Page 1 of the letter

summarizes the Plan’s conclusion that Mote is not entitled

to relief and sets forth the definition of disability from the

Plan. From the bottom of page 1 through the middle of page 2,

the letter reviews Mote’s medical history. It then states that

[a]vailable medical records do not include references to

clinical, laboratory or radio-graphic findings of progressive

or worsening organic illness, or to severe or intractable

medication side effects. They also do not furnish descriptors

of severity of your musculoskeletal symptoms or other

subjective symptoms. Although your subjective musculoskeletal symptoms are credible, they are not accounted

for by identifiable neurological or musculoskeletal pathology.

In my view, the only way to read this letter is that Mote’s

reported pain is insufficient to justify relief.

The only other items to which the letter refers are the surveillance evidence, which for the reasons I outline later is insufficient to support the Plan’s conclusions, and an Independent

Medical Examination (“IME”) conducted by a Dr. Tuttle on

September 15, 2003. Dr. Tuttle was commissioned by the

defense to examine Mote, but his examination could only have

been as good as the data he had. As Mote pointed out in her

brief, both his background and the file he consulted were

deficient. Dr. Tuttle was given only a partial record to review

and “lacked the appropriate medical specialization to evaluate

a fibromyalgia claim.” Based on his one-time examination of

(continued...)

credit evidence other than Mote’s own reports of pain,

it cannot begin with the premise that reported pain can

never be enough.1
22 No. 06-4127

1 (...continued)

Mote, his review of an incomplete record of her medical

history, and his viewing of the selective excerpts from the

surveillance tapes, Dr. Tuttle stated that he could not “see any

reason why [Mote] cannot return to a sedentary type of position at a full 8 hours a day.” IME at 4. I fail to see how Dr.

Tuttle’s opinion, given these significant limitations, could

constitute a valid basis for disregarding the informed and

fully documented conclusions of Mote’s treating physicians. Yet

the Plan justified its decision to deny benefits based solely on

this IME and the surveillance evidence.

The Supreme Court’s decision in Black & Decker Disability

Plan v. Nord warns that “Plan administrators, of course,

may not arbitrarily refuse to credit a claimant’s reliable

evidence, including the opinions of a treating physician,”

even though the administrators have no obligation “to

accord special weight to the opinions of a claimant’s

physician.” 538 U.S. 822, 834 (2003). In this case, even if

there were some language in the Plan on which the administrators could hang their conclusion that subjective

evidence is never enough to support an award of benefits,

the Plan still failed to articulate its “reasons for rejecting

evidence,” which is necessary “if there is to be meaningful appellate review.” Halpin, 962 F.2d at 695. It may be

that even under the correct standards, a weighing of all

the evidence would lead once again to a rejection of her

claim. Nonetheless, Mote is entitled to have the decision,

whatever it is, reached through the use of a fair process.

The record makes clear that this did not happen.

Second, although surveillance evidence can be used to

undermine the credibility of a doctor’s medical opinions

where the diagnosis is based substantially on patient

reports, whether it was used properly here depends on
No. 06-4127 23

how it was used and for what purpose. The record indicates that the Plan’s medical reviewer, Dr. Hall, did not

receive all of the surveillance information about Mote,

which was gathered over days and days of observation.

Instead, as the majority concedes, he received only a

compilation of two hours of pre-selected footage. After

reviewing this material and looking at no other new

evidence, Dr. Hall withdrew his earlier conclusion that

Mote was totally disabled from working in any occupation. The fact that the tapes themselves are not in the

record does not somehow make Dr. Hall’s conclusion

reliable. No one disputes that he never saw the vast

majority of the evidence that was collected. One might

just as well view a two-hour snippet of Mote sitting on a

sofa, and conclude that this was all she ever did. Dr. Hall’s

opinion was based on inherently unreliable evidence

and thus should not have been entitled to any weight.

Properly used, surveillance evidence can provide a

basis for choosing between contradictory medical evidence by rendering some of that evidence less credible. This

court has noted that “[w]e can imagine an argument

that even if the activity disclosed . . . does not indicate a

capacity to engage in full-time work, the fact that it is

discrepant with the level of activity described by [the

treating physician], presumably on the basis of representations made to him by [the plaintiff], fatally undermines [the

plaintiff’s] credibility.” Hawkins, 326 F.3d at 918. Here, the

Plan contends that the surveillance evidence was used to

discredit the treating physicians’ statements and not as an

independent basis for terminating Mote’s benefits, but

the record belies this assertion.

Mote may well have concluded that there was no need to

supplement the record before this court by furnishing all of
24 No. 06-4127

the surveillance tapes, because even the evidence that

Dr. Hall viewed was generally consistent with the records

from Mote’s treating physicians. One problem with the

way in which the Plan used the surveillance evidence is the

fact that it made assumptions that find no support in the

record. Thus, for example, in its 2004 denial of Mote’s

appeal, it described the activities viewed in surveillance as

Mote’s “daily living activities,” even though the record

contains no evidence that these activities were daily or

even regular. As I have already noted, the record contains

only the pre-edited, two-hour videotape that, in essence,

constitutes a highlight reel of Mote’s most active moments

during several days of surveillance. There would have

been no need to plant cameras inside Mote’s home in

order to collect evidence that fairly reflected her ordinary

activities; a fair look at the days’ worth of footage actually

obtained would have sufficed.

Most troubling to me is that when the activities observed

by surveillance are put in context, their utility in assessing

Mote’s level of disability appears flimsy at best. Mote’s

medical records state that Mote “overdoes it. Others aware

of her overdoing it and depend on it. Patient aware of need

for changes.” We have recognized in the past that some

disabled people manage to keep going only through

superhuman efforts; in those circumstances their activities

do not negate the fact that they are disabled. See Perlman

v. Swiss Bank Corp. Comprehensive Disability Protection

Plan, 195 F.3d 975, 983 (7th Cir. 1999). In 1999, Dr. Gruft

noted that Mote had a goal of setting boundaries with her

mother (who is also disabled) and setting limits with

others generally. The only days where Mote was observed

undertaking any significant activity were the days she

drove her mother to and from her mother’s doctor’s
No. 06-4127 25

appointments (once in July 2001 and once two years later

in January 2003). Her activities that day included eating

at a restaurant with her mother, where she sat for one

hour, and standing up for two minutes after approximately 30 minutes of sitting. The other day of surveillance

came on a day where Mote was required by the Plan to

undergo a functional capacity evaluation. She drove 45

minutes each way to that appointment. Although these

contextual details are in the surveillance notes, there is no

indication that Dr. Hall had access to the written notes

or that they were incorporated into the video that he

watched. Notably, Mote cancelled the second day of

her evaluation because she was in pain. Although one of

Mote’s treating physicians noted in her medical records

that Mote could not operate a motor vehicle, this observation accompanied a new prescription for a sedative. It is

entirely possible that the doctor meant to warn against

operation of a motor vehicle while taking the drug, rather

than to describe Mote’s ability to drive. The tape showing Mote picking up her mail and newspapers at the end

of her driveway included observations that she limped to

the end of the driveway, that the limp significantly worsened on the walk back to the house, and that Mote struggled twice with the newspaper, and so I am unable to

see how this helps the Plan’s arguments at all.

Other courts have concluded that segments of surveillance showing light physical activities by a plaintiff do

not amount to a showing that she is able to manage fulltime employment. See Osbun v. Auburn Foundry, Inc., 293

F. Supp. 2d 863, 870 (N.D. Ind. 2003) (“[Surveillance]

evidence that [the plaintiff] can perform light physical

tasks for 1.5 hours over two days falls far short of demonstrating that he is capable of sustaining a job. [The defen-
26 No. 06-4127

dant] produced no evidence showing how long [the

plaintiff] can perform such tasks, whether he can perform

them on a daily basis, or how much pain he must endure

in the process.”); Crespo v. Unum Life Ins. Co. of Am., 294

F. Supp. 2d 980, 996 (N.D. Ill. 2003) (finding, in a claim of

disability due to fibromyalgia, that the defendant’s

“comparison between [the plaintiff’s] daily activities and

the requirements of a full-time job is misplaced,” as

“[t]here is no evidence anywhere in the record that [the

plaintiff] undertakes these activities [including taking

walks and performing household chores] with the regularity and structure of a full time job”); see also id. (noting

that claimants need not “become inert in order to avoid

having their disability benefits denied”).

Viewed in any light, the surveillance evidence in Mote’s

case is nothing like what this court faced in Shyman v.

Unum Life Ins. Co., 427 F.3d 452, 456 (7th Cir. 2005), which

involved an allegedly bedridden man coaching basketball and baseball teams. Mote’s evidence demonstrates that

she was not capable of functioning in any capacity within

the workforce. Surely there is room to conclude that a

person is totally disabled from working without requiring

that she be bedridden and immobile during every second of the day. The Plan’s apparent assumption that only

something this extreme would disable her from working

is, or could be viewed by a finder of fact to be, arbitrary

and capricious.

Before concluding, I note with some concern that the

actual plan underlying this claim is shrouded in mystery.

Bizarrely, at oral argument, defense counsel acknowledged

that although he represents both Aetna and the Plan, his

only direction in this case came from Aetna. Aetna, however, was dismissed from the case at the district court level,
No. 06-4127 27

and all three judges on this panel agree that this was

correct. It is odd, at best, that Aetna therefore seems to be

handling the litigation on appeal and that the Plan is

nowhere to be found. The evidence of the Plan was

also handled carelessly. Mote attached a copy of the longterm disability insurance contract between Arthur

Andersen and Aetna to her complaint, entitled “Long-Term

Disability Policy,” rather than another document, entitled

“Arthur Andersen LLP Group Long Term Disability

Insurance Plan,” which appears later in the record. Both

Mote and the defendants refer to the first document as the

plan at issue in this case. In the insurance contract, obligations are imposed on “Aetna” and the “policyholder”

throughout, with Arthur Andersen (Mote’s former employer) identified as the policyholder. In the latter document, which seems to be the actual plan at issue, obligations are imposed upon the “Administrator,” “Fiduciary,”

and “Appeals Fiduciary,” as one would expect. Arthur

Andersen, which is defunct at this point, is named as

the Plan Administrator, while both Fiduciary roles are

filled by Aetna.

Given these two documents, it is unclear how an employee would know which plan document she should rely

upon, who was in charge of the Arthur Andersen longterm disability plan, or if the Plan was its own entity

separate from Aetna. The employee would need to

consult both plans, which notably have similar but not

identical definitions of disability. Mote has not pressed

this issue in support of any of her arguments, and so we

do not need to consider its implications on the case at

hand. It does help to explain, however, some of the problems in this case.

Because, in my view, Mote has raised genuine issues of

fact on the question whether Aetna’s determination (or,
28 No. 06-4127

more accurately, the Plan’s) that she could not show

inability to perform any job in the economy was arbitrary

and capricious, I would reverse the district court’s grant

of summary judgment in favor of the Plan and remand

for further proceedings. I therefore respectfully dissent.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-12-07