In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-2617

B RUCE F ISCHER,
                                                  Plaintiff-Appellant,
                                  v.

L IBERTY L IFE A SSURANCE C OMPANY OF B OSTON
and S TEIN R OE INVESTMENT C OUNSEL LLC
L ONG T ERM D ISABILITY P LAN,
                                     Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 05 C 3256—Joan B. Gottschall, Judge.



     A RGUED JANUARY 21, 2009—D ECIDED A UGUST 4, 2009




  Before P OSNER, F LAUM, and W OOD , Circuit Judges.
  W OOD , Circuit Judge. This case arose after Liberty Life
Assurance Company of Boston (“Liberty”) decided to
terminate the payment of long-term disability benefits to
the plaintiff, Bruce Fischer. Fischer tried to reverse that
decision at the administrative level. When he could not,
he sued Liberty and the sponsor of his benefits plan, Stein
2                                               No. 08-2617

Roe Investment Counsel LLC Long-Term Disability Plan
(to which we refer collectively as “Liberty”), seeking an
order compelling Liberty to continue his benefits. The
district court granted Liberty’s motion for summary
judgment, and Fischer appealed. We conclude that the
district court properly applied a deferential standard of
review to Liberty’s decision, and that, under that
standard, there is no reversible error.


                              I
                             A
  Fischer is a 59-year-old man who began working for
Stein Roe Investment Counsel, LLC, in May 1996 as the
company’s lead programmer. On September 22, 2001, he
ended his employment with Stein Roe and applied for
short-term disability benefits under Liberty’s benefits
plan (“Plan”), claiming memory loss and attention prob-
lems. Liberty approved Fischer’s claim and he began
receiving short-term disability benefits effective Septem-
ber 22, 2001. Shortly thereafter, Fischer sought treatment
from his physician, Dr. Randy Georgemiller. In November
2001, Dr. Georgemiller diagnosed Fischer with “Axis I
major depression, recurrent, moderate cognitive disorder
NOS, and R/O Dementia, Alzheimer’s type, early onset
with depression; Axis II no diagnosis; Axis III mild
cortical atrophy, diabetes mellitus, hypertension, arthritis,
asthma and ulcerative colitis; Axis IV psychological
and environmental problems, occupation problems, and
economic problem[s]; and Axis V FGAF 50 current.” On
November 28, 2001, Fischer saw neurologist Dr. Jordan
No. 08-2617                                               3

Waxman, who diagnosed him with “a profound depression
with questionable coexistent dementia.” In a February 18,
2002, attending physician’s statement (a form used by
Liberty’s claims department), Dr. Robert Greendale, who
had examined Fischer each month from June 2001 to
January 2002, diagnosed him with major depression
secondary to a medical condition. In a similar statement
written on February 26, 2002, Dr. Laura LaFave, who
had seen Fischer beginning in November 2001, diagnosed
him with “severe depression disorder with cognitive
impairment” and noted that Fischer had problems
with memory and concentration.
  On February 20, 2002, Liberty acknowledged that it had
received a claim from Fischer for long-term disability
benefits. Liberty informed Fischer that since his disability
officially began on September 22, 2001, a 180-day waiting
period would apply, during which time Liberty would
evaluate his eligibility for benefits. Fischer submitted
statements from Drs. Waxman, Greendale, and LaFave
to Liberty. In addition, presumably in an effort to bolster
his claim, Fischer sought diagnoses from additional
physicians. On March 21, 2002, Fischer saw neurologist
Dr. Zoran Grujic. Dr. Grujic noted that Fischer had some
problems with attention, memory encoding, and memory
retrieval, but no problems with forgetfulness. (We are not
sure how “memory retrieval” differs from forgetfulness,
but Dr. Grujic drew this distinction.) Dr. Grujic also
recorded that Fischer had a history of encephalitis as a
child and that he suffered from “periods of zoning out”
that were occasionally accompanied by urinary inconti-
nence. Based on these observations, Dr. Grujic suggested
4                                               No. 08-2617

the “possibility of a partial complex seizure disorder as
a contributor to his decline” and also noted that
Fischer’s preliminary test results and age were “atypical”
for Alzheimer’s disease. Dr. Grujic thus recommended
further examinations, including a long-term electroenceph-
alography (“EEG”) study and a positron emission tomogra-
phy (“PET”) scan.
   On May 24, 2002, Liberty approved Fischer’s claim
for long-term disability benefits, retroactive to March 21,
2002, at a level representing 60% of his pre-disability
earnings (because his condition was pre-existing). Liberty
also told Fischer that, as the Plan required, his disability
status would be “evaluated relative to [his] inability
to perform material and substantial duties of his occupa-
tion” for the first 24 months, and thereafter his status
would be “evaluated relative to [his] inability to perform
the material and substantial duties of his own or any
occupation for which he has training, education, or ex-
perience.” Liberty noted that, because of the nature of his
illness, which it described as major depression, Fischer
was subject to the Plan’s limitation for mental illnesses.
Under this provision, benefits for a disability attributable
to “Mental Illness, Substance Abuse, or Non-Verifiable
Symptoms” were subject to a 24-month maximum. The
Plan also contained an exception to that rule:
    Benefits may exceed this limitation only if the
    Covered Person is confined to a hospital or institution
    for Mental Illness or Alcohol or Drug Abuse, or is
    participating in an Extended Treatment Plan estab-
    lished in writing by a Physician in lieu of hospitaliza-
No. 08-2617                                               5

    tion. The extension of benefits beyond the 24 month
    limitation is subject to review by Liberty.
Liberty also alerted Fischer to the fact that there was no
guarantee that he would receive benefits for the full 24-
month benefit period.
  On July 25, 2002, Fischer underwent a PET scan. The
results of the test were first reviewed by Dr. Grujic on
August 13, 2002. Dr. Grujic noted that the PET scan
raised the possibility of early Alzheimer’s disease. In his
view, however, taking Fischer’s medical history as a
whole, Fischer could not properly be diagnosed with
Alzheimer’s without further testing. Dr. Grujic thought
that the unusual PET scan results might be attributable
to the encephalitis that Fischer had suffered as a child. In
addition, taking into account a 24-hour EEG that also
had been performed and returned negative results,
Dr. Grujic continued to believe that Fischer might have
an underlying seizure disorder and thought that Fischer
might benefit from medications for that condition.
  On February 3, 2003, Liberty’s consulting neuro-
psychologist, Dr. James Taylor, reviewed Fischer’s case.
Dr. Taylor was unaware that Fischer had completed
EEG and PET studies the previous summer. In the
absence of such studies, Dr. Taylor decided that further
neuropsychological testing was needed to evaluate
Fischer’s work capacity. Dr. Taylor thought that prior
assessments of Fischer’s neuropsychological and neuro-
logical status did not conclusively establish his level of
functional impairment and were in any event too dated
to be used to evaluate his current work capacity.
6                                               No. 08-2617

Dr. Taylor wanted to rule out the possibility that some of
Fischer’s functional losses were the result of a mood
disorder and thus reversible. As a result, he recom-
mended that Liberty follow up to see whether EEG and
PET studies had been completed or conduct a new
neuropsychological evaluation of Fischer.
  On April 18, 2003, Liberty advised Fischer that his long-
term disability benefits would be discontinued because
his treating physicians, Drs. LaFave and Greendale, had
failed to verify his ongoing disability status. Liberty
informed him that he could ask Liberty in writing to
review this determination within 180 days. Fischer re-
sponded to this letter by submitting additional medical
records, including a neuropsychological evaluation
report from Dr. Georgemiller. Dr. Georgemiller noted that
his findings indicated “global, progressive cognitive
deficits in conjunction with significant depression,” and
while Fischer’s intellectual skills fell into the “very supe-
rior” range, he had “reduced mental speed and visual
spatial skills” as well as reduced “flexible thinking and
susceptibility to losing his problem solving set with
distraction.” Dr. Georgemiller stated that when Fischer’s
performance was compared to his performance 16 months
earlier, “there is significant decrement in his working
memory, mental speed, attention and concentra-
tion, mental flexibility, and visual spatial abilities.”
Dr. Georgemiller’s conclusion was that Fischer was “very
depressed but his mood disorder does not appear to be
the sole etiology of his cognitive and functional deficits.”
The doctor recommended “[a]ggressive psycho-
pharmacological treatment” for Fischer’s depression to
No. 08-2617                                               7

“assist in improving his mood and [to] promote a higher
level of functioning,” coupled with “[p]harmacological
agents to mitigate the effects of progressive cognitive
decline.” In May 2003, at Liberty’s request, Dr. James
Butcher, Liberty’s consulting physician, also adminis-
tered a number of personality and behavioral tests to
Fischer. Dr. Butcher’s results were reported in his “Outpa-
tient Mental Health Interpretive Report,” submitted to
Liberty on September 15, 2003. That report indicated that
Fischer’s results were consistent with depression and
hysteria, and that Fischer was likely suffering from a non-
organic dysthymic disorder (that is, a chronic, but less
severe, form of depression).
  Fischer formally appealed Liberty’s decision to dis-
continue his long-term disability benefits in a letter to
Liberty dated June 11, 2003. Fischer asserted that the
medical evidence established that he was, and remained,
disabled “as the result of a severe neurocognitive impair-
ment.” Liberty reopened Fischer’s claim on June 23,
2003, and referred his case to a consulting physician,
Dr. Melvyn Attfield, to determine precisely what Fischer’s
primary disabling condition was. Dr. Attfield confined
himself to reviewing the file. Based on that review, he
concluded that there was insufficient evidence of a dis-
order that was primarily neurological and that Fischer’s
clinical presentation was predominantly psychological,
not organic. Dr. Attfield also stated that the neurological
examinations performed by Dr. Georgemiller were incon-
sistent and methodologically flawed, and he recom-
mended that Fischer undergo an independent neuro-
logical evaluation. In response, Liberty referred Fischer to
8                                               No. 08-2617

Dr. Steven Rothke, a clinical neuropsychologist and
rehabilitation psychologist. On February 5, 2004, Dr.
Rothke evaluated Fischer, reviewed his medical history,
and performed an independent psychiatric evaluation
of him. Dr. Rothke concluded that Fischer’s test results
showed no significant decline in intellectual functioning,
concentration, recall, or memory. Dr. Rothke noted that
on the test most sensitive to brain impairment, Fischer
performed within the normal range. Dr. Rothke stated that
he did not believe that Fischer had any progressive de-
menting condition. Dr. Rothke’s diagnosed mild depres-
sion (although he admitted that the testing could not
rule out the presence of a medical or neurological condi-
tion or explain the MRI and PET scan findings). In re-
sponse to Dr. Rothke’s findings, Fischer submitted to
Liberty a report authored by Dr. Grujic, who opined that
Fischer’s July 2002 and September 2003 PET scans, his
clinical presentation, and his results on several tests were
consistent with organic impairment, although the source
of that impairment was unclear.
   On March 23, 2004, Liberty again wrote to Fischer
and notified him that, based on its initial determination
that he was subject to the 24-month limitation for mental
illnesses, his benefits expired on March 20, 2004. Liberty
left the door open to change, however, insofar as it also
told him that it was “currently gathering information to
assess [his] continued eligibility for benefits beyond this
date” and that he would “continue to receive benefits
during this review.” True to its word, Liberty then sub-
mitted Fischer’s medical records to neurologist Dr. Dawn
Kleindorfer. Dr. Kleindorfer reviewed Fischer’s file and
No. 08-2617                                               9

concluded that the objective findings did not support a
diagnosis of dementia. She qualified that conclusion
with a note that Fischer does have “suggestive PET scan-
ning of a dementing process that I would want to follow
clinically overtime [sic].” Dr. Kleindorfer also specified
that Fischer’s neuropsychological testing “reveals very
superior functioning on all levels of testing” and that she
did not “feel that he has any objective evidence of im-
pairment.” Liberty also submitted Fischer’s medical
records to Dr. Elizabeth Gallup who, on April 30, 2004,
opined that “the cornerstone of the diagnosis of Alzhei-
mer’s or any dementia is cognitive impairment, particu-
larly in short-term memory . . . [but that, in Fischer’s
case,] . . . no cognitive impairment exists.”
   On May 25, 2004, relying on Fischer’s medical records
and the reports of Drs. Attfield, Rothke, Kleindorfer, and
Gallup, as well as those of Fischer’s treating physicians,
Liberty determined that Fischer’s primary disability was
major depression, a mental/nervous condition. This
meant that the Plan’s 24-month limitation for mental
illnesses applied, and Liberty therefore discontinued
Fischer’s benefits. Liberty’s letter informed Fischer that
he had a right of review pursuant to the Employee Re-
tirement Income Security Act (“ERISA”), and that any
request for a review needed to be sent in writing within
60 days of his receipt of its determination of ineligibility
and had to be supported by medical records of treating
physicians recorded after December 1, 2003. Fischer
appealed Liberty’s decision on November 23, 2004; he
argued that he was disabled because he suffered from a
seizure disorder, dementia, and other physical conditions
10                                              No. 08-2617

such as diabetes, colitis, hypertension, asthma, and arthri-
tis. Fischer contended that Liberty’s decision was
contrary to Liberty’s own interpretive rule, which says,
“Only when it can be determined that the claimant is
disabled solely from a psychological basis can the limita-
tion be applied.” On December 20, 2004, Liberty advised
Fischer that he had until January 20, 2005, to submit any
additional evidence he believed would support his case;
Fischer did not submit any further evidence, and Liberty
proceeded to conduct another review of Fischer’s case.
   For the purpose of this stage of the proceedings, Liberty
assigned a Nurse Case Manager to go through Fischer’s
file and decide whether Fischer was disabled as a result
of any physical conditions or organic brain disorder. The
Nurse Case Manager concluded that two peer reviews
were necessary in order to answer this question. Fischer’s
file was accordingly referred to internist Dr. Eugene
Truchelut and neuropsychologist Dr. Cris Johnston.
Dr. Truchelut was asked to review any physical impair-
ment that Fischer might have. He opined that Fischer
had a torn rotator cuff in the right shoulder that would
limit him to lifting no more than 20 pounds and that
suspicion of partial complex seizures made it appro-
priate to restrict Fischer’s exposure to unprotected heights
and limit his operation of machinery, but he found that
there was no other physical condition that would limit his
ability to return to work. Dr. Johnston was asked to
review Fischer’s history from a psychological and neuro-
logical perspective; he determined that a diagnosis of
dementia was premature. Dr. Johnston concluded that,
based on Fischer’s neuropsychological test scores, “there
No. 08-2617                                               11

is no question that he has the cognitive capacity to
function adequately in a wide range of jobs.” Based on
these findings, Liberty upheld its determination that
Fischer was ineligible for benefits beyond the 24-month
mental illness limitation period.


                             B
   On June 1, 2005, Fischer filed this action pursuant to
29 U.S.C. § 1132(a)(1)(B) to reinstate his long-term disabil-
ity benefits. Following the close of pleadings, the parties
filed cross-motions for summary judgment under
F ED. R. C IV. P. 56. Although the district court initially
denied both parties’ motions, on reconsideration it
granted summary judgment in Liberty’s favor. The court
explained that it had made an error of law in its initial
ruling when it concluded that Liberty’s motion should
be denied because a “reasonable fact finder might disbe-
lieve Liberty’s doctors, or find that Liberty’s decision to
disregard the evidence of physical disability provided
by Fischer’s doctors to be arbitrary and capricious.” The
court concluded that it had applied an incorrect standard
of review, and when the appropriate arbitrary and capri-
cious standard was applied, it was clear that the “court’s
earlier determination . . . [was] insufficient to defeat the
presumption of reasonableness to which Liberty’s deter-
mination is entitled under Seventh Circuit precedent.”
Fischer has appealed from the district court’s final judg-
ment in favor of Liberty.
12                                              No. 08-2617

                             II
  While this court ordinarily reviews a district court’s
grant of summary judgment de novo, that standard
operates somewhat differently when we are looking at the
determination of an ERISA plan administrator whose
decisions are entitled to deferential review (that is,
whose decisions may be set aside only if they are
arbitrary and capricious). Under Firestone Tire and Rubber
Co. v. Bruch, 

, 115 (1989), if a benefits plan
confers discretionary authority to determine eligibility
and benefits under the plan, then judicial review is defer-
ential; if it does not, then the court makes an independent
decision. See Krolnik v. Prudential Insurance Co., No. 08-
2616, 

at *1 (7th Cir. June 29, 2009). Both
parties agree that the arbitrary and capricious standard
is the appropriate standard of review for Fischer’s case.
Fischer argues, however, that this standard has been
modified by the Supreme Court’s decision in Metropolitan
Life Insurance Co. v. Glenn, 

(2008). Under
Glenn, he asserts, less deference is required in cases
like this one, where the administrator operates under
a conflict of interest.
  We recently dealt with much the same argument in
Leger v. Tribune Co. Long Term Disability Benefit Plan, 

(7th Cir. 2009). There, the plaintiff claimed that
Glenn calls for “a more penetrating scope of judicial review
than has previously been utilized.” 

(internal
quotation marks omitted). We held that “[o]ur study of
Glenn convinces us . . . that the decision is best read as
an extension of the Court’s previous decision in
Firestone . . . .” 

We explained that
No. 08-2617                                                13

      [f]airly read, Glenn explains how the general principle
      established in Firestone should be applied to the
      more specific case in which responsibility for both
      claim determinations and pay-outs is vested in the
      same entity. In such a situation, a court is required
      to take such an obvious conflict of interest into con-
      sideration—along with all of the other relevant
      factors— in determining whether the entity’s determi-
      nation was arbitrary and capricious. . . . [T]he Court’s
      decision in Glenn did not create a new standard of
      review—a “heightened arbitrary and capricious
      standard”—for claims involving a conflict of interest.

standard of review to be applied therefore
remains the arbitrary and capricious standard, but one
of the factors that must be taken into account in applying
that standard is any conflict of interest. See Tate v. Long
Term Disability Plan for Salaried Employees of Champion Int’l
Corp. # 506, 

, 559 (7th Cir. 2008) (where an
ERISA plan gives discretionary authority to determine
eligibility for benefits, a denial of benefits is reviewed
under the arbitrary and capricious standard); see also
Jenkins v. Price Waterhouse Long Term Disability Plan, 

(7th Cir. 2009) (“This doesn’t make us a rubber
stamp . . . . [and] we remain cognizant of the conflict of
interest that exists when the administrator has both the
discretionary authority to determine eligibility for
benefits and the obligation to pay benefits when due.”).
Under the arbitrary and capricious standard, we will
uphold an administrator’s determination unless it is
14                                              No. 08-2617

“downright unreasonable.” Davis v. Unum Life Ins. Co. of
Am., 

, 576 (7th Cir. 2006) (internal quotation
marks omitted). We have held that an administrator’s
determination will be upheld so long as it is possible to
offer a reasoned explanation, based on the evidence, plan
documents, and relevant factors that encompass the
important aspects of the problem. Sisto v. Ameritech
Sickness and Accident Disability Benefit Plan, 

,
700 (7th Cir. 2005). Nevertheless, even under this deferen-
tial standard of review, the determination to deny
benefits and the termination procedure must comply with
the ERISA mandate 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.” 

(quoting Halpin v.
W.W. Grainger, Inc., 

, 688 (7th Cir. 1992))
(internal quotation marks omitted). We will not uphold
a termination of benefits if there is no support in the
record for the ultimate decision. 

v.
Xerox Corp. Long-Term Disability Income Plan, 

, 774-75 (7th Cir. 2003)).
  Fischer maintains that Liberty’s decision that he is
ineligible for benefits beyond 24 months is unreasonable
because his illness is the result of an organic brain
injury, and therefore he is not subject to the Plan’s
mental illness limitation. He urges that Liberty’s discon-
tinuation of his benefits is presumptively arbitrary and
capricious because Liberty failed to follow its own
internal guidelines when it applied the mental illness
limitation to his case. He also insists that Liberty’s
decision is arbitrary and capricious because it ignored
No. 08-2617                                             15

objective evidence that demonstrates that his impair-
ment is organic, not psychological.
  If we were making an independent decision about
Fischer’s disability, his second argument would certainly
give us pause. The record, which we have recounted in
detail above, contains ample evidence that his illness
was in significant part organic. But we are not the finder
of fact here. The problem for Fischer is that the record
also contains reputable evidence that the sole cause of
Fischer’s disability (in the sense of his inability to
perform any job) was depression, a psychological disease.
What Fischer is essentially arguing is that Liberty’s deci-
sion can be upheld only if a preponderance of the
evidence, or something like that, supports it. As the
district court correctly recognized on reconsideration,
however, that is not the standard.
  Measured against the arbitrary and capricious standard
of review, Fischer cannot prevail. The question, we
repeat, is whether Liberty’s decision to deny Fischer
benefits finds rational support in the record. It does. No
fewer than seven doctors concluded that the sole or
primary cause of Fischer’s disability was depression, a
psychological disease, not an organic disease. Three
doctors thought that his disability was exclusively psycho-
logical. In addition, one of the doctors who concluded
that the cause of Fischer’s impairment was psychological,
opined that the methodology employed by Fischer’s
treating physicians to diagnose him with an organic
brain disorder was flawed. In the face of this evidence,
Liberty’s determination cannot be branded as arbitrary
16                                               No. 08-2617

and capricious. This is not to say that the evidence com-
pelled Liberty’s decision; it is merely to say that the evi-
dence permitted it. While Fischer did present substan-
tial evidence that his condition was organic, it was not
an abuse of discretion for Liberty to reject Fischer’s evi-
dence in favor of contrary and, at least in Liberty’s
view, more compelling evidence.
  This is not the type of case in which the Glenn conflict-of-
interest factor plays an important role. As we noted, the
Supreme Court in Glenn instructed that the presence of a
conflict will “act as a tiebreaker when the other factors
are closely balanced . . . .” 

. In
other words, “[w]hen the case is borderline . . . the
inherent conflict of interest that exists in so many of
these situations can push it over the edge—towards a
finding of capriciousness.” 

.
This is not a borderline case; in light of Liberty’s con-
sideration of no fewer than thirteen expert opinions, it
is not possible to say that Liberty’s decision was even
close to “downright unreasonable.”
  The judgment of the district court is A FFIRMED.




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