Carol Aschermann v. Aetna Life Insurance Company

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1230
CAROL ASCHERMANN,
Plaintiff-Appellant,
v.
AETNA LIFE INSURANCE COMPANY, et al.,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:10-cv-00433-LJM-MJD—Larry J. McKinney, Judge.
ARGUED JUNE 6, 2012—DECIDED JULY 31, 2012
Before EASTERBROOK, Chief Judge, and WOOD and SYKES,
Circuit Judges.
EASTERBROOK, Chief Judge. Carol Aschermann suffers
from degenerating discs and spondylolisthesis. She had
lumbar fusion operations in 2002 and 2004. Dmitry
Arbuck, her pain-management specialist, believes that
only the development of new medical procedures could
alleviate her residual pain.
Until 2003 Aschermann worked for AstraZeneca
Pharmaceuticals as a sales representative. Christopher

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2 No. 12-1230
v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2163–64
(2012), and Schaefer–LaRose v. Eli Lilly & Co., 679 F.3d 560,
563–68 (7th Cir. 2012), describe the nature of this job.
Back pain left her unable to perform its duties. Between
2003 and 2009 she received disability payments under
AstraZeneca’s disability plan, a welfare-benefit plan
governed by the Employee Retirement Income Security
Act (ERISA). Terms of the disability plan are contained
in a group insurance policy issued by Lumbermens
Mutual Casualty Company. For two years from the
onset of a disability, the plan provides benefits to a partici-
pant who can’t do her old job. After that, the ques-
tion becomes whether she can perform any job in the
economy as a whole. Lumbermens stopped paying disa-
bility benefits to Aschermann in fall 2009, concluding
that she could do sedentary work.
The district court held that, to upset this decision,
Aschermann must establish that it is arbitrary and capri-
cious. 2010 U.S. Dist. LEXIS 121841 (S.D. Ind. Nov. 12, 2010).
After reviewing the documents that she submitted to
Aetna Life Insurance Co., which administers the group
plan on behalf of Lumbermens, the court held that the
decision to end her disability benefits was neither
arbitrary nor capricious, and it entered summary judg-
ment in defendants’ favor. 2011 U.S. Dist. LEXIS 149785
(S.D. Ind. Dec. 30, 2011). Aschermann does not deny
that her education (she has a B.S. in psychology and
a master’s degree in social work) and experience suit
her for many desk-bound positions, but she contends
that Aetna erred in finding that she is able to perform
any of them. Dr. Arbuck believes that she cannot work

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No. 12-1230 3
more than four hours a day. Aetna concedes that, if that
is so, she is entitled to disability benefits.
The first question we must decide is whether the
district judge should have made an independent deci-
sion, on a record newly compiled in federal court,
rather than reviewing the administrative record under a
deferential standard. Independent decision—often though
misleadingly called “de novo review”, see Krolnik v.
Prudential Insurance Co., 570 F.3d 841, 843 (7th Cir. 2009)—is
required in ERISA litigation when the plan does not
provide differently. See Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 111–13 (1989). But when the plan
confers discretion to interpret and implement its terms,
deferential judicial review is appropriate. Id. at 111,
115; see also Diaz v. Prudential Insurance Co., 424 F.3d
635 (7th Cir. 2005). AstraZeneca’s plan bestows
such discretion on its administrator, the AstraZeneca
Administration Committee, plus any insurer that under-
writes the benefits. The group policy confers discretion
on Lumbermens. Aschermann concedes that deferential
review would be appropriate had Lumbermens made
the decision in question. She observes, however, that
neither the plan nor the group policy mentions Aetna,
which acts as Lumbermens’ agent. (Lumbermens is
withdrawing from the insurance business. To assist in
unwinding its positions, it engaged third parties to ad-
minister policies that it could not cancel.) Aschermann
contends that only decisions by a person whom the
plan names are subject to deferential review.
This can be decomposed into two questions: first, is a
written delegation essential; second, is this particular

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As part of the process of withdrawing from the insurance ^
business, Lumbermens created a subsidiary, NATLSCO, Inc.,
to perform administrative services. In 2003 Lumbermens
sold NATLSCO to Platinum Equity LLC, which renamed
NATLSCO as Broadspire Services. Aetna purchased
Broadspire’s disability-adm inistration business from
Platinum Concepts in April 2006 and since then has adminis-
tered Lumbermens’ open disability claims. These details do
not matter to our litigation; what does matter is that the docu-
mentary chain is established.
delegation authorized? We reserved the first question
in Semien v. Life Insurance Co. of North America, 436
F.3d 805, 811 (7th Cir. 2006), and need not answer it
here either. Lumbermens and Aetna’s predecessor
signed a document captioned “Administrative Services
Agreement”, which transfers to Aetna all of Lumbermens’
day-to-day duties and discretion.^
This leaves the question whether Lumbermens ex-
ceeded its authority in appointing an agent. The
district court said no, because the plan allows sub-delega-
tion. But the language the district judge quoted per-
mits “[t]he Plan Administrator” to delegate, and
the Plan Administrator is AstraZeneca Administration
Committee, not Lumbermens. Aschermann also maintains
that this sub-delegation language appears in the sum-
mary plan description, which differs from the plan itself.
See CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011). It isn’t
clear that Aschermann is right about this; the language
is in a “summary” section of the plan document, but the
first page in the summary suggests that it is a statement

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No. 12-1230 5
of basic terms, with more abstruse ones relegated to the
back of the book. There is no reason why an employer
cannot make a summary plan description be part of the
plan itself and thus reduce the length of the paperwork
and the potential for disagreement between the sum-
mary and the full plan (though this is not how things
had been done in Amara). See Curtiss-Wright Corp. v.
Schoonejongen, 514 U.S. 73, 83 (1995). Because Aschermann
did not argue in the district court that the language in
the “summary” section of the document should be
ignored, the defendants were not called on to explicate
the relation between the summary and the full
plan. But it is unnecessary to run this to ground, if
Lumbermens can re-delegate discretion it enjoys under
the group policy.
Firestone derived its presumption of independent
judicial decision-making from principles of trust law,
observing that federal courts supply operating details
under ERISA by using common-law principles. This
leads us to ask whether the holder of a discretionary
power may delegate it, in the absence of contractual
language resolving that question one way or the other.
According to the Restatement (Second) of Contracts §318(1)
(1981), delegation does not depend on an express grant;
instead it is permissible unless it would be “contrary
to public policy or the terms of [a] promise.” Nothing
in AstraZeneca’s plan, or Lumbermens’ group policy,
forbids delegation, and Aschermann does not argue
that delegation would be contrary to any public policy. To
the contrary, Aschermann concedes that ERISA allows
delegation; she argues only that AstraZeneca’s plan
does not authorize it expressly.

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6 No. 12-1230
At common law, delegation is not allowed for personal-
services contracts: if the Lyric Opera hires Plácido
Domingo to sing Hoffmann, he can’t send Neil Shicoff
in his stead, even though many opera buffs consider
Shicoff the better interpreter of that role. See Restatement
(Third) of Agency §3.04(3) and comment c (2006). The
group policy is not a personal-services contract, however;
Aschermann has no interest in who, precisely, makes
the decision. Like any other corporation, Lumbermens
can act only through people. It must designate someone,
or some group, to evaluate applications for disability
benefits; Aschermann has no right to choose who
among Lumbermens’ staff evaluates her application. By
delegating this function to Aetna, Lumbermens has not
done anything fundamentally different from choosing
a particular working group within its internal hierarchy.
That Aetna proceeds as an independent contractor on
behalf of Lumbermens, rather than as an employee
of Lumbermens, is of no moment under the common law
or any of ERISA’s provisions.
Delegation could cause a problem by creating or ag-
gravating a conflict of interest. Decision by a conflicted
delegate requires closer judicial review. See Metropolitan
Life Insurance Co. v. Glenn, 554 U.S. 105 (2008). But the
delegation from Lumbermens to Aetna reduced any
potential for conflict. Lumbermens, as an underwriter,
benefits when claims are denied (or, as here, previously
granted benefits are terminated). Aetna, as a third-
party administrator, has no financial interest: when
it grants or continues benefits, Lumbermens pays. Aetna
gains from efficient and accurate resolution of

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No. 12-1230 7
claims—and any temptation to cut corners would lead
Aetna to grant (or continue) benefits in order to avoid
expensive litigation such as this suit. From Aschermann’s
perspective, Aetna should be preferable to Lumbermens
as decisionmaker. We therefore agree with the district
court that the judicial role is deferential. Aetna’s deci-
sion must be sustained unless it is arbitrary and capricious.
Aschermann’s claim for benefits rests on her back
problems (well established in the medical records) plus
Dr. Arbuck’s conclusion that she cannot work more
than four hours a day. But Arbuck is a pain specialist,
whose opinions rely substantially on Aschermann’s self-
evaluation of her pain, rather than a vocational expert;
what jobs a person can do depends as much on the de-
mands of the workplace as on capacity to tolerate pain.
Aschermann’s pain is alleviated when she lies down;
some sedentary jobs allow their occupants to recline or
stretch occasionally. Millions of people with back pain
are gainfully employed, and many people return to
work after lumbar fusion operations. That Aschermann
has serious back problems, and residual pain, is not
conclusive on the question whether she can work.
In 2005, a year after Aschermann’s second opera-
tion, Aetna sent her medical file to Martin G. Mendels-
sohn, an orthopedic surgeon. Mendelssohn concluded
that the clinical evidence (including a report by the sur-
geon who performed the second operation and noted
Aschermann’s statement that in spring 2005, six months
after the operation, only “mild to moderate” pain re-
mained) did not demonstrate inability to do sedentary

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8 No. 12-1230
work. In 2006 Aetna obtained an employability assess-
ment report (comparable to the testimony of a vocational
expert in a Social Security disability case) for Aschermann;
the report concluded that a person with her limitations
could perform sedentary jobs. That same year Aetna
sent Aschermann’s medical file to Lawrence Blumberg,
another orthopedic surgeon. He agreed with Dr. Mendels-
sohn. In 2009, while considering whether to terminate
Aschermann’s benefits, Aetna sent the file to Anthony
Riso, a specialist in pain management. Riso agreed with
Mendelssohn and Blumberg. Riso also spoke with
Arbuck and reported that Arbuck now agreed with
this evaluation. In June 2009 Aetna commissioned a
labor market survey, which concluded that vocations in
the medical, social-work, and press-relations fields
were available. Only after receiving all of this advice
did Aetna end Aschermann’s disability benefits.
Physicians disagree—Arbuck is on Aschermann’s side
(Riso misunderstood him; we’ll return to that subject),
while Mendelssohn, Blumberg, and Riso think that she
can work. It is not arbitrary or capricious to resolve such
a conflict in either direction. Aschermann contends,
however, that Aetna stumbled procedurally and that
she is entitled to a do-over so that she can present addi-
tional evidence.
ERISA requires plans to “provide adequate notice in
writing to any participant or beneficiary whose claim
for benefits under the plan has been denied, setting
forth the specific reasons for such denial, written in a
manner calculated to be understood by the participant”.
29 U.S.C. §1133(1). Notice allows the claimant to cure

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No. 12-1230 9
any (curable) deficiency during the required “reasonable
opportunity … for a full and fair review by the appro-
priate named fiduciary of the decision denying the
claim.” 29 U.S.C. §1133(2). Aschermann maintains that
Aetna provided inadequate notice, which prevented
her from employing its appeals process to best effect.
(She does not, however, maintain that there was any
problem in Aetna’s pre-decisional processes. Ascher-
mann and Aetna had been discussing her situation
for months, and she knew the criteria by which her sub-
missions would be evaluated.)
Aetna’s letter of August 28, 2009, announcing the termi-
nation of Aschermann’s disability benefits, gives this
reason for the decision:
Medical records reviewed for your claim included
an Attending Physician Statement submitted by
Dr. Arbuck dated 6/25/08 with a medication list,
Meridian Health Group, Progress notes dated
6/11/08 through 1/29/08, a medication refill
dated 3/11/07 and lab test results dated 7/20/06,
and Attending Physician Statement completed
on 1/13/06 by Dr. Arbuck. Because all of these
medical reports are outdated we referred the
medical review of your claim to a Peer Reviewing
Physician specializing in Anesthesiology/Pain
Management who also performed a Peer to Peer
consult with Dr. Arbuck. During the Peer to Peer
consult with Dr. Arbuck on 1/15/09 at 5:35 EST,
Dr. Arbuck stated that you would be capable of
performing sedentary work as long as you did not
have to lift, bend stoop or squat.

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10 No. 12-1230
Based on the provided documentation and tele-
phonic consultation the documentation fails to
support a functional impairment that would
preclude you from performing any occupation.
This explanation does not mention the Mendelssohn
or Blumberg reports, or the bulk of Riso’s. Aschermann
contends that it led her to think that all she needed to
do was to get a new letter from Arbuck reiterating his
view that she has a time limit (four hours daily) as well
as limits on lifting, bending, stooping, and squatting.
Aschermann asked Arbuck for a new letter, which he
provided, stating that Riso had misunderstood him and
that he stands by his view that she cannot perform the
tasks required for a sedentary job. That’s the only new
evidence Aschermann submitted, and on December 1,
2009, Aetna denied her administrative appeal in a letter
that canvasses the medical file and lays out the reasons
in much more detail than the letter of August 28 had done.
Aschermann says that a letter in August as compre-
hensive as the one in December would have led her to
submit new medical evidence. To get new evidence (as
opposed to a new letter from Dr. Arbuck), Aschermann
would have needed to undergo new tests. That
would have caused delay, and Aetna’s staff told her
that evaluating the new evidence would take time on top
of that. Hoping to have benefits restored swiftly,
Aschermann chose to stand on the existing medical
record, supplemented only by Arbuck’s letter. Regretting
that choice, Aschermann says that she would have acted
differently had the letter of August 2009 made it clear

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No. 12-1230 11
that Aetna’s decision rested on something more than
Riso’s tin ear. Aetna replies that three phone conversa-
tions between its staff and Aschermann in September
and October 2009 supplied what she thinks is missing
from the letter. Summaries of these conversations are in
the record, but they provide Aetna’s understanding
rather than Aschermann’s; given the posture of the litiga-
tion, it is best to stick with the letter itself.
And that letter has more substance than Aschermann
recognizes. For one thing, it says that “all of these
medical records are outdated”. Aschermann knew that
Aetna had her entire medical file and so could tell that
the few documents to which the letter referred were just
illustrations. It says that the documents considered
“included” those listed, not that only the listed docu-
ments had been considered. The most recent document
from any back specialist, other than the two that Aetna
had retained in 2005 and 2006, was created in April 2005,
when the surgeon who performed her second operation
reported that her pain had been reduced by the opera-
tion of November 2004 and was then (by Aschermann’s
own account) mild to moderate. Since April 2005 there
had been no tests, no x-rays, no hands-on evaluation by
any orthopedic specialist. A lot can happen in four
years, and Aetna’s blunt statement that “all of these
medical records are outdated” tells the recipient that
something recent was essential.
The letter also told Aschermann that “[i]f you disagree
with this determination, in whole or in part, you may
file a written request for a review of your claim. You must:

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12 No. 12-1230
1) Provide a written appeal:
State the reasons you believe the claim
should be treated differently. Please include
additional facts or pertinent information to
substantiate your position.
2) Provide us with current medical documenta-
tion from the health care provider which: In-
cludes additional facts or pertinent informa-
tion to substantiate your position. Estab-
lishes that you are unable to work in any
occupation as defined on the previous page.
Includes medical data such as: diagnostic
test results, to support the diagnosis and claim
for continued disability; and provides specific
functional abilities, including any and all
restrictions and limitations.”
Aschermann wants us to treat this as irrelevant boiler-
plate. Formulaic it may be—though the sentence frag-
ment “Includes additional facts or pertinent information
to substantiate your position” is in boldface and larger
type than the sentences immediately before and after,
and the spacing does not quite line up, which im-
plies that it may have been inserted into a template.
But formulaic does not mean irrelevant. Aetna told
Aschermann that it wanted new diagnostic test results
and other recent information. Language gets called
“boilerplate” when it is used frequently, and we are
sure that Aetna does use this language frequently, because
it will steer many claimants in the right direction.
The statement that existing records were outdated,
coupled with a request for new diagnostic tests, gave

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No. 12-1230 13
Aschermann a “reasonable opportunity” to supplement
the file and receive a “full and fair review” within
Aetna’s bureaucracy. Aschermann discussed with
Aetna’s staff the possibility of undergoing new tests
and submitting new medical findings. Aetna’s re-
ply—that it would consider whatever Aschermann sub-
mitted, but that waiting for more tests, followed by
more internal review, equals delay—cannot be described
as a flaw in the administrative process. Honesty is a
virtue, not a problem. Given the record that Aetna evalu-
ated, its decision was not arbitrary or capricious.
Aschermann’s other arguments have been considered
but do not require discussion.
AFFIRMED
7-31-12

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