In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3100

MARK C. HAWKINS,

Plaintiff-Appellant,

v.

FIRST UNION CORPORATION LONG-TERM DISABILITY PLAN,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 02 C 0456—Suzanne B. Conlon, Judge.

____________

ARGUED FEBRUARY 25, 2003—DECIDED APRIL 22, 2003

____________

Before POSNER, COFFEY, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. Mark Hawkins was denied longterm disability benefits by his employer’s welfare plan,

sued under ERISA, and now appeals from the grant of

summary judgment to the plan. Hawkins was employed

full time to supervise the processing, auditing, and (if

necessary) rebilling of a class of invoices. The job required

him to sit more or less all day at a computer, reading and

typing. In 1993 he was diagnosed with fibromyalgia, and

since 1996 he has been treated for this condition by Dr.

Robert Katz, a rheumatologist. In 2000 he stopped working

and applied for total-disability benefits, to which he was
2 No. 02-3100

entitled by the terms of the welfare plan if his medical

condition prevents him from working a minimum of 80

percent of the normal full-time work week either at his

normal occupation or at some other occupation for which he

might be fitted by training or experience. This would have

to be a job similar to the one he held, hence a job that

consisted of sitting at, and reading and typing on, a computer.

As we explained in Sarchet v. Chater, 78 F.3d 305, 306-

07 (7th Cir. 1996) (citations omitted), fibromyalgia, “also

known as fibrositis [is] a common, but elusive and mysterious, disease, much like chronic fatigue syndrome, with

which it shares a number of features. Its cause or causes are

unknown, there is no cure, and, of greatest importance

to disability law, its symptoms are entirely subjective.

There are no laboratory tests for the presence or severity of

fibromyalgia. The principal symptoms are ‘pain all over,’

fatigue, disturbed sleep, stiffness, and—the only symptom

that discriminates between it and other diseases of a

rheumatic character—multiple tender spots, more precisely

18 fixed locations on the body (and the rule of thumb is

that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly

cause the patient to flinch. . . . There is no serious doubt

that Sarchet is afflicted with the disease but it is difficult

to determine the severity of her condition because of the

unavailability of objective clinical tests. Some people may

have such a severe case of fibromyalgia as to be totally

disabled from working, but most do not and the question

is whether Sarchet is one of the minority.” That is the

same question that confronted the plan in this case. It

does not deny that Hawkins has fibromyalgia; he has 14

“points,” well above the threshold of 11. But it found that

he is not among the minority of fibromyalgia sufferers

who are totally disabled, even though Dr. Katz reported
No. 02-3100 3

that Hawkins cannot sit or stand for more than a few

minutes at a time. In Katz’s words, “This patient struggles

through each activity of his day due to pain, fatigue and

headaches. He needs frequent rest periods each hour.

Since this condition is chronic we do not anticipate a

marked increase in functional level without increase in

pain.”

The plan turned down Hawkins’ application for two

reasons: because an “activities questionnaire” that the

plan had required him to fill out indicated a greater ability

to work than Dr. Katz had reported and because the plan’s

medical consultant, Dr. Chih-Hao Chou, advised after examining Hawkins’ medical records and talking by telephone

with Dr. Katz that Hawkins was not totally disabled. Because the terms of the plan reserve discretion to the plan’s

administrator, we cannot reverse unless the determination that Hawkins is not totally disabled is not merely

erroneous but “arbitrary and capricious,” that is, unreasonable.

Each party makes a bad argument, and let us clear them

out of the way. Hawkins argues that the plan was required

to give greater weight to the opinion of the treating physician, Dr. Katz, than to the opinion of the consultant, Dr.

Chou, especially since Chou did not examine Hawkins

but merely read his medical records and discussed his

condition with Katz over the phone. A number of social

security disability cases apply a “treating-physician presumption,” e.g., Clifford v. Apfel, 227 F.3d 863, 870 (7th

Cir. 2000); Shramek v. Apfel, 226 F.3d 809, 814 (7th Cir.

2000); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); see

also 20 C.F.R. § 404.1527(d)(2), though there are grounds

for skepticism; physicians naturally tend to support their

patients’ disability claims, and so we have warned against

“the biases that a treating physician may bring to the

disability evaluation,” Dixon v. Massanari, 270 F.3d 1171,
4 No. 02-3100

1177 (7th Cir. 2001), explaining that “the patient’s regular

physician may want to do a favor for a friend and client,

and so the treating physician may too quickly find disability.” Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir. 1985);

see also Brown v. Apfel, 192 F.3d 492, 500 (5th Cir. 1999).

But such skepticism may have a stronger basis when the

treating physician squares off against a neutral consultant

appointed by the Social Security Administration than when

the consultant is hired by the administrator of a private plan

and so may have a financial incentive to be hard-nosed

in his claims evaluation in order to protect the financial

integrity of the plan and of the employer that funds it. Ladd

v. ITT Corp., 148 F.3d 753, 754 (7th Cir. 1998); Van Boxel v.

Journal Co. Employees’ Pension Trust, 836 F.2d 1048, 1052-53

(7th Cir. 1987). If the incentives of the treating physician and

of the plan’s consultant are assumed to be equal and

opposite, consideration of incentives drops out and the

superior information likely to be possessed by the treating

physician, especially when as in this case the consultant

does not bother to examine the patient, may support the

treating-physician presumption after all. See Bali v. Blue

Cross & Blue Shield Ass’n, 873 F.2d 1043, 1048 (7th Cir. 1989);

cf. Whitson v. Finch, 437 F.2d 728, 732 (6th Cir. 1971).

The courts are divided on whether the presumption

applies to benefits determinations by administrators of

ERISA plans. Compare Nord v. Black & Decker Disability

Plan, 296 F.3d 823, 831 (9th Cir. 2002), cert. granted, 123

S. Ct. 817 (2003); Darland v. Fortis Benefits Ins. Co., 317 F.3d

516, 532-33 (6th Cir. 2003); Jackson v. Metropolitan Life Ins.

Co., 303 F.3d 884, 888 (8th Cir. 2002); Skretvedt v. E.I. Du Pont

de Nemours & Co., 268 F.3d 167, 184 (3d Cir. 2001), and

Regula v. Delta Family-Care Disability Survivorship Plan, 266

F.3d 1130, 1139 (9th Cir. 2001), with Connors v. Connecticut

General Life Ins. Co., 272 F.3d 127, 135 n. 4 (2d Cir. 2001);

Elliott v. Sara Lee Corp., 190 F.3d 601, 607-08 (4th Cir. 1999),
No. 02-3100 5

and Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011,

1016 (5th Cir. 1992). We have not addressed the issue. See

also Leahy v. Raytheon Co., 315 F.3d 11, 20-21 (1st Cir. 2002)

(reserving it). Maybe the Supreme Court will resolve it

in the Nord case. What is curious about the cases that we’ve

cited is that all of them treat the issue as one for the reviewing court to resolve. But the procedures followed

by plan administrators are matters of contract. Nothing

compels an ERISA plan either to adopt or to reject a

treating-physician presumption. We know that a plan

may specify the degree of deference due the plan administrator’s benefit determinations, and hence the scope of

judicial review. Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989); Herzberger v. Standard Ins. Co., 205 F.3d 327,

332 (7th Cir. 2000). Why can’t it equally specify the procedures and rules of evidence, including presumptions, that

the plan’s administrator shall use to evaluate claims?

Hawkins does not argue that, fairly read, the plan in

this case incorporates the presumption.

The plan’s bad argument is that because Hawkins worked

between 1993 and 2000 despite his fibromyalgia and there

is no indication that his condition worsened over this

period, he cannot be disabled. This would be correct were

there a logical incompatibility between working full time

and being disabled from working full time, but there is

not. A desperate person might force himself to work despite an illness that everyone agreed was totally disabling. Perlman v. Swiss Bank Corp. Comprehensive Disability

Protection Plan, 195 F.3d 975, 982-83 (7th Cir. 1999); Wilder

v. Apfel, 153 F.3d 799, 801 (7th Cir. 1998); Wilder v. Chater,

64 F.3d 335, 337-38 (7th Cir. 1995); Jones v. Shalala, 21 F.3d

191, 192-93 (7th Cir. 1994). Yet even a desperate person

might not be able to maintain the necessary level of effort

indefinitely. Hawkins may have forced himself to continue in his job for years despite severe pain and fatigue
6 No. 02-3100

and finally have found it too much and given it up even

though his condition had not worsened. A disabled person

should not be punished for heroic efforts to work by being

held to have forfeited his entitlement to disability benefits

should he stop working.

This bad argument does not invalidate but does undermine the plan’s reliance on the fact that Hawkins’ activities questionnaire may (the uncertainty implicit in our

choice of this word is deliberate) disclose a higher level

of activity than Dr. Katz reported. We learn from it that

Hawkins has been taking classes in an effort to become

a Web designer and that he surfs the Web for an hour or

so at night and sometimes does some housework. Obviously a Web designer works at a computer, but there

is nothing in the answers to the questionnaire to indicate

that Hawkins is sitting full time, as it were, or that he has

any aspiration to be a full-time Web designer (or for that

matter an 80 percent of full-time Web designer). And when

one is working at home it is easier to interrupt one’s work

every few minutes if need be than to do so at the office.

But what is most important and ties back to the plan’s

bad argument is that Hawkins’ unfortunate choice in life

is between succumbing to his pain and fatigue and becoming inert, on the one hand, and on the other hand

pushing himself to engage in a certain amount of painful

and fatiguing activity. If he does the latter, it does not

prove that he is not disabled.

We can imagine an argument that even if the activity

disclosed in the questionnaire does not indicate a capacity

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

with the level of activity described by Dr. Katz, presumably

on the basis of representations made to him by Hawkins,

fatally undermines Hawkins’ credibility. But that argument is not made.
No. 02-3100 7

That leaves the plan with only Dr. Chou’s report to

stand on. We cannot quote it in full, but the following

excerpts will indicate its unsatisfactory character: “Although

Ms. [sic] Hawkins has been diagnosed with fibromyalgia,

the majority of individuals with fibromyalgia are able

to work. . . . According to a personal activities questionnaire, . . . Mr. Hawkins reported that he was able to take

classes and undergo pool therapy. . . . There are no objective findings to support restrictions. . . . Although Mr.

Hawkins has various subjective complaints, he has been

able to perform various extracurricular activities, including pursuing further education. The diagnosis of fibromyalgia does not, in and of itself, produce permanent

impairment. . . . [I]ndividuals with chronic pain benefit

when their lives have purpose and meaning. Although

Mr. Hawkins may report an increase in subjective pain

complaints on a return to work, an inability to work within the guidelines . . . is not objectively supported in the

medical records.”

The fact that the majority of individuals suffering from

fibromyalgia can work is the weakest possible evidence

that Hawkins can, especially since the size of the majority

is not indicated; it could be 50.00001 percent. The fact

that he can undergo pool therapy says nothing about his

condition, nor the fact, a variant of the first point, that the

diagnosis of fibromyalgia does not in and of itself produce permanent impairment. (Obviously the diagnosis produces nothing, but one sees what Dr. Chou was driving

at—and it is still irrelevant.) The reference to “extracurricular activities” is hopelessly vague. That individuals with

chronic pain benefit when their lives have purpose and

meaning is certainly a sensible suggestion, but it favors

Hawkins’ claims as much it counters it, since a striving

for purpose and meaning may explain why Hawkins may
8 No. 02-3100

be exerting himself beyond his capacity, paradoxical as

“working beyond capacity” may seem.

But the gravest problem with Dr. Chou’s report is the

weight he places on the difference between subjective and

objective evidence of pain. Pain often and in the case of

fibromyalgia cannot be detected by laboratory tests. The

disease itself can be diagnosed more or less objectively by

the 18-point test (although a canny patient could pretend

to be feeling pain when palpated at the 18 locations—but

remember that the accuracy of the diagnosis of Hawkins’

fibromyalgia is not questioned), but the amount of pain

and fatigue that a particular case of it produces cannot be.

It is “subjective”—and Dr. Chou seems to believe, erroneously because it would mean that fibromyalgia could

never be shown to be totally disabling, which the plan

does not argue, that because it is subjective Hawkins is

not disabled.

What makes this nevertheless a close case is the deferential review that a plan’s determinations receive when as

in this case the terms of the plan vest the plan’s administrator with discretion to grant or deny applications for

benefits under it. But the discretion is not unlimited. The

record contains nothing more than scraps to offset the

evidence presented by Hawkins and by Dr. Katz. The

denial of the application was unreasonable.

The judgment is reversed and the case remanded to the

district court for further proceedings consistent with this

opinion.
No. 02-3100 9

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-22-03