Eric S. Zall v. Standard Insurance Company

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1096
ERIC S. Z ALL,
Plaintiff-Appellant,
v.
S TANDARD I NSURANCE C OMPANY ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:21-cv-00019-slc — Stephen L. Crocker, Magistrate Judge.
____________________
A RGUED O CTOBER 24, 2022 — DECIDED J ANUARY 19, 2023
____________________
Before HAMILTON , S T. EVE, and K IRSCH , Circuit Judges.
HAMILTON , Circuit Judge. Plaintiff-appellant Eric Zall
worked more than twenty years as a dentist, but chronic pain
and numbness in his neck and right arm made it impossible
for him to keep working. In 2013, Zall filed a claim for long-
term disability benefits under an insurance policy with de-
fendant-appellee Standard Insurance Company. Standard ap-
proved his claim and began paying benefits. Six years later,
Standard terminated Zall’s benefits. Standard concluded that

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2 No. 22-1096
Zall’s spinal condition and associated symptoms did not sat-
isfy policy requirements for paying disability benefits for such
conditions for more than two years without additional medi-
cal findings.
Zall filed this suit under ERISA, the Employee Retirement
Income Security Act, 29 U.S.C. § 1001 et seq., which governs
his policy with Standard. Zall contends that Standard’s termi-
nation of his benefits was arbitrary and capricious on the mer-
its. He also contends that Standard violated ERISA’s proce-
dural requirements by failing to afford him “a full and fair
review … of the decision denying the claim.” 29 U.S.C. § 1133.
The district court granted summary judgment for Standard.
Zall v. Standard Ins. Co., 21-cv-19-slc, 2021 WL 6112638, at *1,
*11 (W.D. Wis. Dec. 27, 2021). Zall has appealed. We agree
with Zall on the procedural issue, reverse summary judg-
ment, and remand for further proceedings. The decisive legal
issue here is which version of an amended procedural regula-
tion issued under § 1133 applies to Standard’s internal admin-
istrative review of its termination of Zall’s benefits. The plain
language of the 2018 amendments to the regulation shows
that the amended version applies, and Standard failed to com-
ply with it.
I. Factual & Regulatory Background
Since the turn of the century, Department of Labor regula-
tions have required the administrator of an employee benefit
plan to give a claimant, “upon request,” copies of “all docu-
ments, records, and other information” that the administrator
has considered, generated, or relied upon in making an ad-
verse benefit determination. 29 C.F.R. § 2560.503–1(h)(2)(iii),
(m)(8)(i)–(ii) (2002) (emphasis added); 81 Fed. Reg. 92,316,
92,323 (Dec. 19, 2016) (explaining amendments). In 2018, the

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No. 22-1096 3
Department amended the regulations to eliminate the “upon
request” language and to require an administrator to provide
such information “sufficiently in advance” of an adverse de-
termination “to give the claimant a reasonable opportunity to
respond” to it. § 2560.503–1(h)(4)(i); 82 Fed. Reg. 56,560-01,
56,560 (Nov. 29, 2017). In other words, under the amended
regulation, a plan administrator must provide the pertinent
information whether the claimant has asked for it or not. This
appeal turns on which version of the regulation applies to the
administrative review of the termination of Zall’s benefits.
Zall filed his original claim for long-term disability bene-
fits back in 2013, when the 2000 version of the regulations was
operative, after pain and numbness forced him to stop work-
ing. Standard denied the claim initially, but Zall appealed
through Standard’s administrative review process. His ap-
peal was successful. In late 2014, after considering additional
medical information that Zall had submitted and consulting a
board-certified orthopedic surgeon, Standard approved Zall’s
claim, including payment of benefits retroactive to November
2013, when Zall had filed the claim.
Less than a year after approving Zall’s claim, however,
Standard began reviewing his case to see if his condition
might be subject to a 24-month benefit limit in the policy. That
limit applies, in relevant part, to a disability “caused or con-
tributed to by … carpal tunnel or repetitive motion syn-
drome” or “diseases or disorders of the cervical, thoracic, or
lumbosacral back and its surrounding soft tissue.” The 24-
month limit does not apply, however, to a disability “caused
or contributed to by … herniated discs with neurological ab-
normalities that are documented by electromyogram and
computerized tomography or magnetic resonance imaging”

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4 No. 22-1096
or “radiculopathies that are documented by electromyo-
gram.” The disputed issue on the merits in this lawsuit is
whether Zall qualifies for that exception to the 24-month limit.
For reasons that are unclear from the record, Standard did
not, during its 2015 review, ask Zall for copies of his then-re-
cent magnetic resonance imaging and electrodiagnostic re-
ports even though (a) consulting physicians recommended re-
viewing those reports and (b) such documentation was re-
quired for coverage under the policy. Also for reasons that are
unclear, Standard did not immediately complete its review of
Zall’s claim. It continued to pay benefits for years.
In 2018 Standard resumed its review in earnest. Standard
finally requested copies of Zall’s diagnostic reports for his
electromyography and magnetic resonance imaging. Zall pro-
vided them. After consulting with physicians who had stud-
ied Zall’s medical file, Standard concluded that his condition
was subject to the 24-month limit, and it stopped paying ben-
efits at the end of 2019. By that time, as we discuss below, the
Department of Labor’s amendments to the regulations had
taken effect for cases like Zall’s. See 82 Fed. Reg. 56,560-01,
56,560 (Nov. 29, 2017) (setting amendments’ applicability date
as April 1, 2018). Zall again appealed through Standard’s ad-
ministrative review process.
During the administrative review process, Standard con-
sulted with another physician, Dr. Michelle Alpert. Dr. Alpert
reviewed Zall’s medical file and summarized her findings in
a report dated August 3, 2020. She disagreed with Zall’s own
physicians’ readings of his diagnostic reports. Her interpreta-
tions supported the conclusion that his condition was subject
to the 24-month benefits limit. On August 20, 2020, Standard
notified Zall that his file had been reviewed “by a physician

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No. 22-1096 5
who had not previously reviewed” it—presumably Dr.
Alpert—and that Standard “require[d] additional time to re-
view” the physician’s “medical review report.” Standard did
not provide Zall with a copy of that report.
Nine days later, Standard notified Zall that it was rejecting
his appeal and would in fact be terminating his benefits.
Based substantially on Dr. Alpert’s report, Standard had de-
termined that Zall’s condition was subject to the 24-month
benefit limit. Although the denial letter summarized Dr.
Alpert’s findings, Standard did not attach a copy of her report.
The letter noted, however, that Standard would, upon “re-
quest,” provide Zall “with copies of all documents, records
and other information relevant to the claim.”
II. Procedural History
Having exhausted his administrative appeals, Zall filed
this suit against Standard. He alleged that Standard had vio-
lated ERISA by arbitrarily and capriciously conducting the re-
view of his benefits claim and wrongfully refusing to continue
paying him long-term disability benefits. Zall sought both
payment of retroactively owed benefits and a declaration that
Standard continues to owe him benefits.
Zall presented three principal challenges in the district
court. First, Standard had “denied him a full and fair review”
by failing to give him a copy of Dr. Alpert’s report. See Zall,
2021 WL 6112638, at *6. That failure, Zall contended, meant
that he never had an “opportunity to respond” to Dr. Alpert’s
findings before Standard made its final decision to terminate
his benefits. Second, Zall argued that Standard’s conclusion
that his condition was subject to the 24-month limit was “not
rationally supported by the medical evidence.” Finally, Zall

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6 No. 22-1096
argued that, by paying him benefits for more than six years
after Standard claims his benefits should have ended, Stand-
ard waived its right to terminate those benefits.
The district court was not persuaded. The court read the
2018 amendments to the regulations as applying only to
claims first filed after April 1, 2018. Id. at *7. Under that view,
the old regulation applied and Standard had not been
“obliged to produce Dr. Alpert’s report to Dr. Zall before is-
suing its final decision,” so Zall’s “full and fair review” claim
must fail. Id.
In terms of the medical evidence, because Standard’s de-
termination needed only to be “rationally supported by rec-
ord evidence,” Standard “was entitled to credit the opinions
of its consulting physicians,” including those of Dr. Alpert,
over those of Zall’s own physicians. Id. at *8, quoting Black v.
Long Term Disability Ins., 582 F.3d 738, 745 (7th Cir. 2009) (de-
ferring to “Standard’s choice between competing medical
opinions”). Standard’s determination that Zall’s condition fell
within the 24-month benefit limit was neither arbitrary nor ca-
pricious, the court said, because Dr. Alpert’s interpretations
of Zall’s 2014 diagnostic reports provided rational support for
the denial. Id. at *8–9, *11. The district court also rejected Zall’s
waiver argument: “ERISA does not prohibit a plan adminis-
trator from performing a periodic review of a beneficiary’s
disability status.” Id. at *11, quoting Holmstrom v. Metropolitan
Life Ins. Co., 615 F.3d 758, 767 (7th Cir. 2010). On cross-motions
for summary judgment, the district court therefore ruled
against Zall and entered judgment for Standard. Id. at *1, *11.
On appeal, Zall has abandoned the waiver argument, but
he continues to argue that (1) Standard did not afford him a
“full and fair review” because it failed to provide him with

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No. 22-1096 7
Dr. Alpert’s report before reaching a final benefit determina-
tion, and (2) Standard arbitrarily and capriciously concluded
that Zall’s condition was subject to the 24-month benefit limit.
III. Analysis
A. Standard of Review
We review a grant of summary judgment de novo, show-
ing no deference to the district court’s legal analysis. Weit-
zenkamp v. Unum Life Ins. Co. of America, 661 F.3d 323, 329 (7th
Cir. 2011). The default rule under ERISA is that courts apply
de novo review to denials of benefits, Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 115 (1989), but most benefit plans
give the administrator “discretionary authority” to interpret
the plan and to decide claims for benefits, as permitted by
Firestone. The plan here does just that. Courts review exercises
of such discretionary authority under the deferential arbi-
trary-and-capricious standard. Hennen v. Metropolitan Life Ins.
Co., 904 F.3d 532, 539 (7th Cir. 2018).1
1 Because Standard is both the adjudicator and payor of his claim, Zall
argues that Standard is susceptible to a structural conflict of interests, so
that we should “apply special skepticism” in reviewing Standard’s deci-
sion to terminate benefits. That is, Zall would have us accord Standard’s
decision less deference than we would if there were no conflict. The Su-
preme Court addressed this problem under ERISA in Metropolitan Life Ins.
Co. v. Glenn, teaching that “a conflict should ‘be weighed as a factor in
determining whether there is an abuse of discretion.’” 554 U.S. 105, 115
(2008), quoting Firestone, 489 U.S. at 115 (cleaned up). Such a conflict of
interest does not take the standard of review outside the otherwise appli-
cable “arbitrary-and-capricious” standard. Conkright v. Frommert, 559 U.S.
506, 512 (2010); Majeski v. Metropolitan Life Ins. Co., 590 F.3d 478, 482 (7th
Cir. 2009). Under Glenn, however, that standard must be applied with
awareness of and giving some weight to the conflict of interest. “In evalu-
ating whether the administrator’s decision was arbitrary and capricious,”

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8 No. 22-1096
Arbitrary-and-capricious review “turns on whether the
plan administrator communicated ‘specific reasons’ for its de-
termination to the claimant, whether the plan administrator
afforded the claimant ‘an opportunity for full and fair review,’
and ‘whether there is an absence of reasoning to support the
plan administrator’s determination.’” Majeski v. Metropolitan
Life Ins. Co., 590 F.3d 478, 484 (7th Cir. 2009), quoting Leger v.
Tribune Co. Long Term Disability Benefit Plan, 557 F.3d 823, 832–
33 (7th Cir. 2009).
B. The 2018 Regulatory Amendments
Whether Standard failed to provide Zall with the “full and
fair review” ERISA requires, 29 U.S.C. § 1133, depends on
which version of the Department of Labor’s regulations for
claims procedures applied to Zall’s claim. The requirements
are contained in 29 C.F.R. § 2560.503–1.
Under the 2002 version of the regulation, when a claimant
appealed an adverse benefit determination, a “full and fair re-
view” required the plan to provide the claimant, “upon request
and free of charge, reasonable access to, and copies of, all doc-
uments, records, and other information relevant to the claim-
ant’s claim for benefits.” § 2560.503–1(o)(1), (h)(2)(iii), (h)(4)
(2002) (emphasis added). “A document, record, or other infor-
mation” was “considered ‘relevant’ to a claimant’s claim if”
the plan administrator had “relied upon [it] in making the
we consider, “among other factors, the administrator’s structural conflict
of interest.” Weitzenkamp, 661 F.3d at 329. How much weight we give that
factor remains a case-by-case determination. But we need not dwell fur-
ther on these nuances in this appeal. Because we reverse on the procedural
issue, which is a question of law that we review de novo, we need not
decide what weight to give Standard’s conflict of interest.

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No. 22-1096 9
benefit determination” or it had been “submitted, considered,
or generated in the course of making the benefit determina-
tion, without regard to whether” the plan administrator had
“relied upon [it] in making the benefit determination.”
§ 2560.503–1(m)(8)(i)–(ii).
As amended in 2018, the regulations demand more of a
plan administrator. In an appeal of an adverse benefit deter-
mination, a “full and fair review” now requires that, “before
the plan can issue an adverse benefit determination on review
on a disability benefit claim, the plan administrator shall pro-
vide the claimant, free of charge, with any new or additional
evidence considered, relied upon, or generated by the plan,
insurer, or other person making the benefit determination (or
at the direction of the plan, insurer or such other person) in
connection with the claim.” § 2560.503–1(h)(2), (h)(4)(i). Any
“such evidence must be provided as soon as possible and suf-
ficiently in advance of the date on which the notice of adverse
benefit determination on review is required to be provided …
to give the claimant a reasonable opportunity to respond prior
to that date.” Id. at (h)(4)(i).
As the district court read them, the 2018 amendments did
not apply, so Standard would have needed to provide Zall
with a copy of Dr. Alpert’s report only if he had requested it.
Zall did not request the report until after Standard finally de-
nied his appeal, so he was afforded all the process legally re-
quired. We disagree with that reading of the 2018 amend-
ments.

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10 No. 22-1096
1. The Applicable Text
The Department of Labor included these provisions for ef-
fective dates for the 2018 amendments to 29 C.F.R. § 2560.503–
1:
(p) Applicability dates and temporarily applica-
ble provisions.
(1) Except as provided in paragraphs (p)(2),
(p)(3) and (p)(4) of this section, this section
shall apply to claims filed under a plan on or
after January 1, 2002.
(2) This section shall apply to claims filed
under a group health plan on or after the
first day of the first plan year beginning on
or after July 1, 2002, but in no event later
than January 1, 2003.
(3) Paragraphs (b)(7), (g)(1)(vii) and (viii),
(j)(4)(ii), (j)(6) and (7), (l)(2), (m)(4)(ii), and
(o) of this section shall apply to claims for
disability benefits filed under a plan after
April 1, 2018, in addition to the other para-
graphs in this rule applicable to such claims.
(4) With respect to claims for disability ben-
efits filed under a plan from January 18, 2017
through April 1, 2018, this paragraph (p)(4)
shall apply instead of paragraphs (g)(1)(vii),
(g)(1)(viii), (h)(4), (j)(6) and (j)(7).
29 C.F.R. § 2560.503–1(p)(1)–(4).
We “begin our interpretation of the regulation with its
text.” Green v. Brennan, 578 U.S. 547, 553 (2016). Only where

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No. 22-1096 11
the text is unclear must we “turn to other canons of interpre-
tation.” Id. at 554. We think the text of the amended regulation
is clear as applied to this case, so in this case our analysis can
begin and end with that text.
Paragraph (p)(1) establishes a general rule of applicability:
“this section shall apply to claims filed under a plan on or af-
ter January 1, 2002.” Because Zall filed his original claim in
2013, paragraph (p)(1) encompasses his case, so the new ver-
sion governs unless an exception applies.
Paragraph (p)(1) identifies three exceptions, which are
stated in paragraphs (p)(2), (p)(3), and (p)(4). The (p)(2) ex-
ception applies only “to claims filed under a group health
plan,” so it does not apply to Zall’s claim for disability insur-
ance benefits. The (p)(3) exception identifies nine provi-
sions—“(b)(7), (g)(1)(vii) and (viii), (j)(4)(ii), (j)(6) and (7),
(l)(2), (m)(4)(ii), and (o)“—as applicable only to claims for dis-
ability benefits filed after April 1, 2018.
Critically, sub-paragraph (h)(4)(i), which eliminated the
“upon request” language and upon which Zall relies to argue
that he was not afforded a “full and fair review,” is not among
those paragraphs identified in paragraph (p)(3).
Finally, the (p)(4) exception renders five provisions—
“(g)(1)(vii), (g)(1)(viii), (h)(4), (j)(6) and (j)(7)”—inapplicable
to claims filed between January 18, 2017 and April 1, 2018.
While paragraph (h)(4) with its removal of the “upon request”
language is among the provisions identified in paragraph

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12 No. 22-1096
(p)(4), the exception does not apply to Zall’s appeal since he
filed his claim before this carve-out period began.2
Accordingly, by the regulation’s plain text, no exception
applies to Zall’s claim, so the 2018 amendments applied to his
administrative appeal of the benefit termination decision.
To avoid this straightforward reading of the controlling
text, Standard makes three arguments. First, Standard points
to evidence from the rule-making process to argue that the
applicability dates in the text of subsection (p) are incorrect.
Second, Standard argues that Zall waived his procedural-vio-
lation argument by failing to make it during his administra-
tive appeal. Finally, Standard argues that the 2018 amend-
ments cannot be read to apply to claims filed as far back as
2002 because that reading would make the amendments im-
permissibly retroactive. These arguments are not persuasive
and cannot overcome the text of the regulation.
2. Extratextual Evidence
Standard argues that, despite the clear meaning of the reg-
ulation’s text, the 2018 amendments were not meant to apply
to any claims filed before April 1, 2018. As evidence of the De-
partment of Labor’s purported intent, Standard directs our
2 We have wondered why the date of Zall’s original claim for benefits
should control the applicable regulation as applied to Standard’s 2018
move to terminate benefits he had already been receiving for several
years. The regulation is written in terms that fit an application for new
benefits better than a termination of existing benefits. If the relevant time
were Standard’s notice of termination of benefits or Zall’s appeal of that
decision, the 2018 amendments would certainly apply. For reasons ex-
plained in the text, we reach the same result even if the relevant date is
Zall’s original application date, so we need not choose here between the
two approaches.

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No. 22-1096 13
attention to the “summary” statement the Department issued
when announcing the final rule. That statement said that “the
applicability of a final rule amending the claims procedure re-
quirements applicable to ERISA-covered employee benefit
plans that provide disability benefits” would be April 1, 2018.
82 Fed. Reg. 56,560-01, 56,560 (Nov. 29, 2017).
As a general rule, of course, where the text of the regula-
tion itself is clear, we need not consider extratextual evidence
of the kind Standard presents. See Green, 578 U.S. at 553–54;
see also Beeler v. Saul, 977 F.3d 577, 590 (7th Cir. 2020) (“When
text is clear and unambiguous, ‘the court must give it effect
and should not look to extrinsic aids for construction.’”), quot-
ing In re Robinson, 811 F.3d 267, 269 (7th Cir. 2016). More spe-
cific to the issue in this case, it is not at all unusual for a sum-
mary of a rule to gloss over detailed nuances in the rule itself.
(Consider under ERISA, for example, the relationship be-
tween a plan summary and the detailed terms of the benefit
plan itself.) Zall’s argument relies on the details in the govern-
ing rule itself, whether or not all of those details were reflected
accurately in the published summary.
Even taking the Department of Labor’s summary state-
ment into account, we find no conflict between the announced
applicability date and the text of the amendments. All the ap-
plicability date means is that until April 1, 2018, the old pro-
cedures governed, and after that date, the new procedures
governed. Standard sees a conflict between the summary
statement and the regulations merely because Standard be-
lieves (erroneously) that the new rules apply only to claims
that were filed after the applicability date.
This is the critical flaw in Standard’s argument. Once the
procedures became operative, they applied to all active

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14 No. 22-1096
claims, as long as they were first filed after January 1, 2002.
On April 1, 2018, Standard had not even begun its adminis-
trative appeal review of Zall’s claim. It would be 18 months
before Standard would terminate his benefits, more than 24
months before Zall would appeal, and more than 27 months
before Dr. Alpert would write her report. For purposes of
Standard’s argument, it does not matter that Zall filed his orig-
inal claim in 2013 when the earlier claims procedures were in
place. What matters is that when the new claims procedures
under the amended regulation took effect, Standard had not
yet reached an adverse benefit determination and Zall had not
yet begun his administrative appeals.3
3. Waiver
If a “plan fails to strictly adhere to all” of the procedural
requirements “with respect to a claim, the claimant is deemed
to have exhausted the administrative remedies under the
plan.” 29 C.F.R. § 2560.503–1(l)(2)(i). “It is at this point in the
claims process that ‘the claimant is entitled to pursue any
available remedies … on the basis that the plan has failed to
provide a reasonable claims procedure that would yield a de-
cision on the merits of the claim.’” Dragus v. Reliance Standard
3 Our view does not conflict with other cases cited by Standard. In
Mayer v. Ringler Assocs. Inc., 9 F.4th 78, 81, 83 (2d Cir. 2021), the Second
Circuit considered a claim that had been filed in late 2015 and was finally
denied in late 2017. The court naturally concluded that the pre-2018 regu-
lations applied to the claim, so the administrator was not required “to pro-
duce documents developed or considered while [the] claim was under re-
view prior to a final determination.” Id. at 86–87, 88. And in Jette v. United
of Omaha Life Ins. Co., 18 F.4th 18, 20, 25 & n.11 (1st Cir. 2021), the claim
had been filed in 2013 and benefits finally denied in 2016, both long before
the 2018 amendments became operative. Moreover, the parties in Jette had
in fact stipulated that the 2002 regulations applied. Id. at 25 & n.11.

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No. 22-1096 15
Life Ins. Co., 882 F.3d 667, 672 (7th Cir. 2018), quoting
§ 2560.503–1(l)(2)(i).
According to Standard, the regulations governing its ap-
peal process are “not designed to permit Zall to sabotage the
administrative review process by remaining silent on a pur-
ported regulatory violation, pursuing the allegedly deficient
administrative proceedings to conclusion, and then utiliz[ing]
the claimed regulatory violation to prevail in court and de-
mand a second administrative appeal.” In other words,
Standard argues, Zall cannot now challenge Standard’s fail-
ure to provide him with a copy of Dr. Alpert’s report because
he did not raise the issue with Standard at the correct time
during the administrative review process.
The problem is that Standard first notified Zall of Dr.
Alpert’s review and report just nine days before denying his
appeal, without providing him a copy of the report. The reg-
ulations require an administrator to “provide the claimant …
with any new or additional information considered, relied
upon, or generated by the plan, insurer, or other person mak-
ing the benefit determination … as soon as possible and suffi-
ciently in advance” of the adverse determination “to give the
claimant a reasonable opportunity to respond prior to” the
administrator’s final decision. 29 C.F.R. § 2560.503–1(h)(4)(i)
(emphasis added). What might be a reasonable opportunity
will depend on the circumstances of the particular case. We
are confident that in this case, nine days advance notice of the
existence of such a critical document was not a reasonable op-
portunity for Zall to respond substantively to the new evi-
dence against his claim, such as by seeking to obtain updated
diagnostic scans, to learn the results of those scans, and to

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16 No. 22-1096
communicate them to Standard before it made its final deci-
sion.
Standard committed the procedural error in the very last
stage of Zall’s administrative appeal. Only after Standard an-
nounced its final decision could Zall have known that Stand-
ard had failed to abide by the required procedures. Zall never
had “a reasonable opportunity to respond prior to” the final
decision. § 2560.503–1(h)(4)(i) (emphasis added). Just as a
party cannot be expected to object to, let alone to appeal, a
judge’s erroneous decision until after the decision has been
made, so too Zall could not object to Standard’s failure until
after that failure became apparent.
Standard also argues that Zall waived his argument about
the amended regulation in the district court “by failing to al-
lege it” in his complaint. This argument reflects a deep and
too-common misunderstanding of federal pleading require-
ments. We have made this point repeatedly: “The Federal
Rules of Civil Procedure do not require a plaintiff to plead le-
gal theories.” Chessie Logistics Co. v. Krinos Holdings, Inc., 867
F.3d 852, 859 (7th Cir. 2017), quoting Vidimos, Inc. v. Laser Lab
Ltd., 99 F.3d 217, 222 (7th Cir. 1996), accord, e.g., Johnson v.
City of Shelby, 574 U.S. 10, 10–11 (2014) (per curiam) (summar-
ily reversing dismissal based on failure to identify legal the-
ory in complaint); Skinner v. Switzer, 562 U.S. 521, 529–30, 537
(2011) (reversing dismissal); Zimmerman v. Bornick, 25 F.4th
491, 492–94 (7th Cir. 2022) (allowing amendment of com-
plaint); Beaton v. SpeedyPC Software, 907 F.3d 1018, 1023 (7th
Cir. 2018) (“As the Supreme Court and this court constantly
remind litigants, plaintiffs do not need to plead legal theo-
ries.”). Also, when a complaint does present legal theories,

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No. 22-1096 17
those theories may later be altered or refined. Chessie Logistics,
867 F.3d at 859.
Zall’s complaint alleged broadly that Standard “did not
perform a ‘full and fair review’ of” Zall’s claim. Dkt. 1 ¶30.
Zall properly honed that argument as the parties proceeded
toward summary judgment. “When a new argument is made
in summary judgment briefing,” the district court may “re-
fuse to consider [any] new factual claims,” but if the new ar-
gument merely “changes the complaint’s … legal theories,”
then the district court should exercise its discretion to hear the
argument so long as doing so will not “‘cause unreasonable
delay,’ or make it ‘more costly or difficult’ to defend the suit.”
Id. at 860, quoting Vidimos, 99 F.3d at 222; see also Whitaker v.
T.J. Snow Co., 151 F.3d 661, 663 (7th Cir. 1998) (where “both
parties squarely address[ ]” a legal theory “in their summary
judgment briefs, the complaint [is] constructively amended”
to incorporate the refined claim); Bartholet v. Reishauer A.G.
(Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992) (“Later docu-
ments” may “refine the claims” and “supply the legal argu-
ments that bridge the gap between facts and judgments.”).
Here, the district court properly addressed Zall’s argument at
summary judgment, and we may review that decision on ap-
peal.
4. Retroactivity
“Retroactivity is not favored in the law. Thus, congres-
sional enactments and administrative rules will not be con-
strued to have retroactive effect unless their language requires
this result.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208
(1988). Likewise, “a statutory grant of legislative rulemaking
authority will not, as a general matter, be understood to

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18 No. 22-1096
encompass the power to promulgate retroactive rules unless
that power is conveyed by Congress in express terms.” Id.
Standard argues that the 2018 amendments cannot be read
as applying to Zall’s claim without violating these general
principles. The power to promulgate retroactive rules, Stand-
ard contends, is beyond the authority Congress has bestowed
on the Department of Labor, for nothing in sections 1133 or
1135 of ERISA expressly conveys such power.
If the regulation’s 2018 amendments had substantive im-
port, Standard’s argument might need further consideration.
But this is a purely procedural rule, aptly titled “Claims pro-
cedure.” 29 C.F.R. § 2560.503–1. The amendments at issue in
this case merely altered the procedural interactions between
a plan administrator and a claimant. Where previously the
burden had been on a claimant like Zall to request a copy of a
document like Dr. Alpert’s report, under the 2018 amend-
ments the burden falls on an administrator like Standard to
give the claimant a copy without being asked and “suffi-
ciently in advance” of the adverse determination “to give the
claimant a reasonable opportunity to respond” to it.
§ 2560.503–1(h)(4)(i).
“Changes in procedural rules may often be applied in
suits arising before their enactment without raising concerns
about retroactivity.” Landgraf v. USI Film Prods., 511 U.S. 244,
275 (1994). This is so because applying the new procedural
rule “usually ‘takes away no substantive right but simply
changes’” the process through which substantive rights are
adjudicated. Id. at 274, quoting Hallowell v. Commons, 239 U.S.
506, 508 (1916). “Because rules of procedure regulate second-
ary rather than primary conduct, the fact that a new proce-
dural rule was instituted after the conduct giving rise to the

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No. 22-1096 19
suit does not make application of the rule … retroactive.” Id.
at 275. Unless there is a “retroactive effect” that “would im-
pair rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect
to transactions already completed[,]” we are unconcerned
with whether Congress expressly provided for retroactive ap-
plication. Id. at 280. Here, it would have been easy for Stand-
ard to comply with the new procedural requirement without
any prejudice to its interests. All it had to do was send Zall Dr.
Alpert’s report and give him a reasonable opportunity to re-
spond to it. Standard’s retroactivity argument does not apply
to the procedural rule at issue in this case.
To sum up, by the plain text of the regulation, the 2018
amendments applied to Zall’s claim. Standard therefore vio-
lated the operative regulation when it failed to provide Zall
with a copy of Dr. Alpert’s report “sufficiently in advance” of
its final determination to allow Zall an “opportunity to re-
spond” to its contents. This simply was not the “full and fair
review” ERISA requires.
C. Prejudice to Zall’s Claim
Zall argues that this procedural violation—the failure to
afford him an opportunity to respond to Dr. Alpert’s report—
was prejudicial to the substance of his benefits claim. Stand-
ard has not responded to this argument, and the district court
did not address it because it found no procedural violation.
The First Circuit recently dealt with this same scenario in
Jette v. United of Omaha Life Ins. Co., 18 F.4th 18 (1st Cir. 2021).
The court chose to reach the question of prejudice because it
could be easily answered “at this stage on the basis of the ad-
ministrative record before” the court. Id. at 32. Jette found that

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20 No. 22-1096
the claimant had indeed been prejudiced by the administra-
tor’s failure to provide a copy of a consulting physician’s re-
port that it relied upon to deny benefits. Id. at 23, 32–33. The
record here reveals facts similar to those that were decisive in
Jette.
Standard submitted Zall’s file to Dr. Alpert for review, and
Dr. Alpert’s medical conclusions contradicted those of Zall’s
own physicians. In particular, Dr. Alpert disagreed with how
Zall’s physicians had read the 2014 MRI and EMG reports and
noted that Zall “had not had an updated MRI” in the six in-
tervening years. Summarizing her findings and responding to
Standard’s particular inquiries regarding conditions subject
to the 24-month limit, Dr. Alpert emphasized that the 2014 di-
agnostic reports could not support Zall’s benefits claim, writ-
ing that Zall had provided “no medical evidence to support”
his claim as of January 2020.
Because Zall was unaware of the report until just nine days
before Standard made its final decision to terminate his bene-
fits, and because Standard gave Zall a copy of the report only
after his attorney requested one in September 2020, Zall was
never afforded a meaningful opportunity to respond to the
report’s contents while his claim was still undergoing admin-
istrative review. But Standard relied on that undisclosed re-
port “to uphold its decision to terminate” the long-term disa-
bility benefits. Jette, 18 F.4th at 32. Like the First Circuit, we
therefore find that the failure to provide that report before
rendering a final adverse determination was prejudicial to
Zall’s claim. Id. at 33.4
4 Our focus on the issue of prejudice is on Dr. Alpert’s report, which,
according to Standard, played an important role in its decision denying

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No. 22-1096 21
D. Whether Zall’s Condition Was Subject to the 24-Month
Limit
Because of the procedural violation, we cannot say reliably
whether Standard acted arbitrarily and capriciously in termi-
nating Zall’s benefits. If Zall had “been afforded the full and
fair review to which [he] was entitled,” including access to Dr.
Alpert’s report, he would have had the opportunity to re-
spond to that report. Jette, 18 F.4th at 33.
We cannot know whether Zall’s response would have
helped his claim, but it is certainly possible that he might have
tried to provide updated diagnostic tests and imaging. If Zall
were to provide new objective test results, we do not know
what they would show. The administrator might ultimately
arrive at the same adverse determination. But Standard could
not ignore such updated diagnostic reports if they showed
that Zall’s condition falls within an exception to the 24-month
limit.
Like the First Circuit therefore, “we will not review”
Standard’s “substantive decision at this time.” Jette, 18 F.4th
at 33. Rather, Zall must be allowed to “go back to the admin-
istrative stage, where [he] will have the opportunity to ‘sub-
mit written comments, documents, records, and other infor-
mation relating to [his] claim,’ 29 C.F.R. § 2560.503–1(h)(2)(ii),
before [Standard] makes a new determination based on the
thus supplemented record.” Jette, 18 F.4th at 33; 29 C.F.R.
§ 2560.503–1(h)(2)(iv) (A review must consider all infor-
mation “without regard to whether such information was
Zall’s appeal. As noted, Standard did not argue the issue of prejudice in
this appeal at all, let alone argue that Dr. Alpert’s report did not add new
information to the case.

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22 No. 22-1096
submitted or considered in the initial benefit determina-
tion.”).
We REVERSE the entry of summary judgment in favor of
Standard and REMAND to the district court with instructions
to REMAND Zall’s case to Standard for a full and fair review
of his claim.

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