                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-1025
ALLEN TEGTMEIER,
                                                  Plaintiff-Appellant,
                                  v.


MIDWEST OPERATING ENGINEERS
PENSION TRUST FUND,
                                                 Defendant-Appellee.

                          ____________
           Appeal from the United States District Court for
          the Northern District of Illinois, Eastern Division.
               No. 03 C 2386—Ruben Castillo, Judge.
                          ____________
   ARGUED SEPTEMBER 28, 2004—DECIDED DECEMBER 7, 2004
                          ____________



  Before BAUER, EASTERBROOK , and MANION, Circuit Judges.
  MANION, Circuit Judge. Allen Tegtmeier sued the Midwest
Operating Engineers Pension Trust Fund (the “Pension
Fund”) for improper administration and breach of fiduciary
duties under the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. §§ 1001, et seq., alleging the defendant
improperly calculated his disability award. Both parties
moved for summary judgment, and the district court
granted the Pension Fund’s motion. Tegtmeier appeals. We
affirm.
2                                                     No. 04-1025

                                 I.
A. The Plan at Issue
  Allen Tegtmeier was an operating engineer who partici-
pated in the Midwest Operating Engineers Pension Plan (the
“Pension Plan”), which the Pension Fund administers. The
Pension Plan addresses when a disability pension begins,
providing that “the payment of a total and permanent
disability pension shall be effective as of the first day of the
month next following the date the participant files an appli-
cation for total and permanent disability pension . . . .”
(Emphasis added.) Thus, the date a person becomes dis-
abled does not trigger payment of disability benefits; rather,
benefits begin the month following the date the participant
applies for the pension.
  In 2001 and 2002, special significance attached to this
effective date under the Pension Plan because of a major
change to another plan covering Tegtmeier, the Midwest
Operating Engineers Health and Welfare Plan (the “Health
and Welfare Plan”). This plan also provided benefits to a
disabled member, though the benefits only lasted for one
year. Beginning in April 2000, the Health and Welfare Plan
began a transition in welfare payment rates by members.
Through 2001, all members paid the same monthly rate to
the Health and Welfare Fund for welfare benefits received
during a participant’s retirement or when the participant
                                   1
was receiving disability benefits. In an effort to reward
seniority, however, the Health and Welfare Fund trustees
decided to implement a new schedule beginning in January


1
  While the pre-2001 Health and Welfare Plan rates did change
based on the different type of services sought by the participant
(retiree, retiree and dependent, etc.), the rates did not alter based
on years of service.
No. 04-1025                                                  3
     2
2002. This new schedule provided that participants with
less seniority would pay greater monthly welfare rates in
the case of retirement or disability than under the previous
flat rate, while those with greater seniority (and who had
paid greater amounts to the Health and Welfare Fund over
the course of their careers) would pay less than under the
pre-existing flat rate. This meant, in many cases, that if a
participant filed for a disability pension before January 1,
2002, he would pay much less in monthly rates than if he
filed after January 1, 2002, when the new scheduled kicked
in. For a participant of ten to fourteen years seniority who
became disabled, such as Tegtmeier, it was the difference
between paying a monthly rate of $237 to the Health and
Welfare Fund (pre-2002 effective date of disability) and
paying a monthly rate of $519 to the Health and Welfare
Fund (post-2002 effective date of disability).
  In addition to the effective date, the second provision of
particular importance in this case concerns the claims
administration procedure after an application is filed. For
applications filed before January 1, 2002, Section 9.2 of the
Pension Plan applies. This section states, in relevant part:
    (a) Unless special circumstances exist, a Participant shall
        be informed of the Trustees’ decision on his claim
        within 90 days of the date the claim is received,
        whether or not all the information and evidence
        necessary to process the claim is received. Within
        such 90-day period, the Participant shall receive the
        Administrative Manager’s decision or a notice that:
    (i) explains the special circumstances requiring a delay
        in the decision, and


2
  According to Pension Fund documents, Tegtmeier was in-
formed of the change in schedule in November 2001.
4                                                 No. 04-1025

    (ii) sets a date, no later than 180 days after his claim has
         been received, by which he can expect to receive a
         decision.
    The Participant may assume that his claim has been
    denied and may proceed to appeal the denial if the
    Participant does not receive any notice from the
    Administrative Manager within the 90-day period.
The remainder of Section 9.2 details what should be con-
tained in a notice from the Administrative Manager and the
review procedure when an application for benefits has been
disapproved.


B. Tegtmeier’s Disability
  Tegtmeier injured his back at work on July 12, 2001.
Following this injury, he began to receive weekly disability
benefits from the Health and Welfare Fund that had a one-
year period of eligibility, ending on July 11, 2002. Tegtmeier
did not immediately seek disability benefits from the Pension
Fund (which would have displaced payments from the
Health and Welfare Fund). In fact, he did not inquire into
obtaining these pension benefits until October 10, 2001. The
next day, the Pension Fund sent him an application, which
he did not return until November 30, 2001, the last date to
qualify as a 2001 filing.
  After filing his application, however, Tegtmeier showed
reluctance to proceed with the actual determination of his
disability status under the Pension Plan. On January 25, 2002,
the Pension Fund sent Tegtmeier a letter stating that it did
not have sufficient information to process his claim. The
Pension Fund noted that he had failed to provide a Medical
Examiner’s Report and gave him until March 11, 2002, an
No. 04-1025                                                   5

additional forty-five days, to comply. The letter ended with
the warning: “[i]f you do not provide this information, your
claim will be denied.”
  Instead of providing this information promptly, Tegtmeier
waited nearly a month before taking action. At that time,
Tegtmeier talked to an unidentified person at the Pension
Fund, who told him that he could put his application on
hold. Tegtmeier then wrote a letter on February 26, 2002,
received by Judith Kot of the Pension Fund, requesting that
the Pension Fund put his application on hold.
    Please put my application for my disability pension on
    hold. As of this date, I have not had my surgery. I’ve
    been advised even with a successful [sic] procedure, I
    should not return to operation of rough riding heavy
    equip. ie. [sic] Dozers, Earthmovers, Loaders, etc. [sic]
    My situation is still uncertin [sic] and at this time I feel
    this is in my best interest.
There is no record of any response by the Pension Fund to
Tegtmeier’s note.
  On May 2, 2002, the Pension Fund sent Tegtmeier another
letter requesting medical records. This May letter referenced
the earlier letter and forty-five day extension, stating “[t]his
is to notify you that we have not received all medical
records to date.” The Pension Fund asked for updates on all
notes from January of 2002 onward and gave another forty-
five day extension, which ended on June 16, 2002. On May
5, 2002, Tegtmeier responded to this letter, stating that he
had surgery scheduled for May 29, 2002, and “request[ed]
another extension of at least 45 days or more.” There is no
record of any response by the Pension Fund to Tegtmeier’s
letter. Tegtmeier underwent back surgery on May 29, 2002.
  On July 12, 2002, Tegtmeier called the Pension Fund to
discuss the status of his application. The Pension Fund
6                                                    No. 04-1025

stated that he would need to file a new application with med-
ical documentation. Kot sent him a new application, which
Tegtmeier completed and filed on July 30, 2002. The next
day, he sent the Pension Fund a letter stating in pertinent
part:
    I hereby request that my initial application for disability
    dated Nov. 01 be still in affect [sic] . . . . I had no idea the
    importance of maintaining this Nov. 01 date due to
    Program changes, ie. [sic] effects, afterwards [sic] . I be-
    lieve I was not completely informed and actually was
    vaguelly [sic] mislead [sic].
  Despite Tegtmeier’s pleas, the Pension Fund Review
Board approved the July 2002 application for disability ben-
efits (with an effective date of August 1, 2002) and denied
his request to use the date of his first application for de-
termining the monthly payments he owed to the Health and
Welfare Fund. The Review Board explained that “[y]ou put
your pension application on hold in February of 2002 and
then notified the Fund in May 2002 that you were not ready
to apply for pension. The Fund closed the application
process and requested that you submit a new application
when you were ready to pursue it.”
   Tegtmeier appealed the Review Board’s decision to the
Pension Fund Appeal Review Panel, which initially denied
the appeal. Tegtmeier then asked for reconsideration, which
led to a hearing as well as a November 19, 2002 decision
from the Review Panel that was “final, conclusive and bind-
ing.” Before the Review Panel, Tegtmeier acknowledged
that he was “attempting to obtain the highest level of bene-
fits during his rehabilitation to support his family,” but
indicated that he had misunderstood the consequences of
waiting to proceed with his disability pension application.
According to Tegtmeier, had he known that his delay would
result in the higher rate, “he would not have made the
No. 04-1025                                                   7

financial decision to continue receiving welfare benefits
instead of accepting pension benefits.” The Review Panel
concluded that the Pension Fund acted reasonably when
treating the 2002 application as a new application, “since the
first application had been stopped, more than 90 days had
passed since the first application, and it is unknown
whether Mr. Tegtmeier’s first application for benefits would
have been approved prior to surgery.”
  On February 29, 2003, Tegtmeier attempted to reopen his
claim in the light of a favorable Social Security Administration
decision from January 2003 that found him totally disabled
since July 2001. The Pension Fund advised Tegtmeier that it
would not reopen the appeal process.
  Tegtmeier responded by filing his ERISA suit in the
Northern District of Illinois, claiming that the Pension Fund
improperly administered his claim and that employees of
the Pension Fund breached their fiduciary duties by mis-
representing the effect of Tegtmeier’s attempt to put his
initial application on hold. Both parties moved for summary
judgment. The district court granted summary judgment to
the Pension Fund, concluding that it did not act arbitrarily
or capriciously when treating the July 2002 application as a
new application. Further, the district court found that the
Pension Fund employees had not breached their fiduciary
duties in their interactions with Tegtmeier. This appeal
followed.


                              II.
  “We conduct de novo review of a district court’s decision
involving cross-motions for summary judgment.” Metro. Life
Ins. Co. v. Johnson, 297 F.3d 558, 561 (quoting Ozlowski v.
Henderson, 237 F.3d 837, 839 (7th Cir. 2001)). Summary
judgment is proper when the “pleadings, depositions, an-
8                                                 No. 04-1025

swers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c)). “With cross-motions, our review of the record requires
that we construe all inferences in favor of the party against
whom the motion under consideration is made.” Johnson,
297 F.3d at 561-62 (quoting Hendricks-Robinson v. Excel Corp.,
154 F.3d 685, 692 (7th Cir. 1998)).


                              A.
  On appeal, Tegtmeier first asserts that the Pension Fund
improperly administered his claim for disability benefits.
Specifically, Tegtmeier argues that the Pension Fund acted
unreasonably when it refused to set December 2001 as the
effective date of his benefits pursuant to his initial applica-
tion. As mentioned above, the effect of the Pension Fund’s
decision was that his monthly benefit rate under the welfare
plan was $519 rather than $237. Tegtmeier also attacks the
Pension Fund for its decision not to reopen his claim in light
of the January 2003 Social Security determination that he
was permanently disabled.
  As a general matter, we review a benefits determination
under ERISA under the “de novo standard unless the ben-
efit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe
the terms of the plan.” Mers v. Marriott Int’l Group Accidental
Death & Dismemberment Plan, 144 F.3d 1014, 1019 (quoting
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).
In this case, both parties agree that the Pension Plan grants
the trustees of the Pension Fund complete discretionary
authority to construe, interpret, and apply all of the terms of
the Plan. When a plan gives discretion, as in this case, we
No. 04-1025                                                  9

review using the deferential arbitrary and capricious
standard. See Mers, 144 F.3d at 1019. Under this standard,
the administrator’s decision will only be overturned if it is
“downright unreasonable.” Carr v. Gates Health Care Plan,
195 F.3d 292, 295 (7th Cir. 1999). “It is not our function to
decide whether we would reach the same conclusion as the
Plan or even rely on the same authority.” Id. at 294. If the
administrator made an informed judgment and articulates
an explanation for it that is satisfactory in light of the rel-
evant facts, then that decision is final. See Exbom v. Cent.
States, S.E. & S.W. Areas Health & Welfare Fund, 900 F.2d
1138, 1143 (7th Cir. 1990).
  Given this highly deferential standard, we cannot say that
the Pension Fund acted unreasonably in its treatment of
Tegtmeier’s initial application. The Pension Fund has put
forth several facts to justify its decision: (1) Tegtmeier’s
attempt to put his application “on hold” in early 2002; (2)
Tegtmeier’s repeated requests for extensions to submit med-
ical documentation; (3) the Pension Fund’s decision to close
the claim after more than 180 days had passed without
progress; and (4) Tegtmeier’s acknowledgment in February
2002, and prior to his operation scheduled for May 2002,
that his status was uncertain. Taken together, these facts
present a picture of Tegtmeier attempting to game the sys-
tem by delaying the processing of his pension benefits in the
hopes of garnering a larger overall benefit payout, a fact
which Tegtmeier apparently acknowledged before the
Review Panel. Unfortunately for him, Tegtmeier did not
adequately understand the rules of the game—namely, the
provisions of the Pension Plan—and the negative effect of
his actions on his benefits.
  The Pension Fund’s decision to proceed with the July 2002
application was reasonable in light of the terms of the
10                                                 No. 04-1025

Pension Plan and the facts available to the Pension Fund
administrator. See Perlman v. Swiss Bank Corp. Comprehensive
Disability Protection Plan, 195 F.3d 975, 982 (7th Cir. 2000)
(“When review under ERISA is deferential, courts are limited
to the information submitted to the plan’s administrator.”).
Tegtmeier did not proceed with his initial application. In-
stead of providing necessary medical documentation for his
disability and going forward with the November applica-
tion, Tegtmeier repeatedly asked for extensions to gather
additional medical support. Further, Tegtmeier told the
Pension Fund that his status was uncertain both in February
and before his surgery in May. These facts give the impres-
sion that Tegtmeier did not want to proceed or could not
proceed with the determination of any disability under the
November application. The Pension Plan provided for a set
procedure of 90 or 180 days to resolve claims. After more
than 180 days and numerous extensions, the Pension Fund
acted reasonably when it deemed his November application
                       3
closed or withdrawn.
  This conclusion is not altered by Tegtmeier’s attempts to
put a hold on his claim. The Pension Plan does not provide
for such a time extension procedure. Moreover, the Pension


3
  Tegtmeier suggests that he was denied his right to appeal the
Pension Fund’s actions relating to this first application, as the
Pension Fund did not serve him with a notice of decision.
Tegtmeier, however, chose not to proceed, and, therefore, the
Pension Fund did not need to send a notice of decision, as it was
Tegtmeier who effectively stopped the process. Second, the
Pension Plan specifically provides that if the member has not
received a notice regarding the disability at the end of ninety
days, the member should treat it as denied and appeal. Despite
his decision not to proceed, Tegtmeier still could have appealed
regarding the first application according to the Pension Plan
terms.
No. 04-1025                                                   11

Fund never responded to Tegtmeier’s request for such a pro-
cedure. Instead, it persisted in its attempts to gather the
necessary information to proceed with the claim, even al-
lowing two 45-day extensions to respond. His claim was
never on hold, nor could it be. The fact that Tegtmeier’s
strategic decisions, which did not comply with the terms
of the Pension Plan, led to an unfavorable result is unfor-
tunate, but it does not make the Pension Fund’s actions
unreasonable.
  Tegtmeier also challenges the decision of the Pension
Fund not to reopen his claim after receipt of a favorable
Social Security Administration decision in January 2003. The
Review Panel made its final decision regarding this matter
on November 19, 2002. The Pension Plan specifically
provides that this last stage review will be conclusive and
binding. While Social Security decisions, if available, are
instructive, these determinations are not dispositive (except
in those cases where a plan ties benefits to the Social
Security decision—this is not such a case). See, e.g., Whatley
v. CNA Ins. Co., 189 F.3d 1310, 1314 n.8 (11th Cir. 1999);
Coker v. Metro. Life Ins. Co., 281 F.3d 793, 798 (8th Cir. 2002).
The Pension Fund’s decision not to reopen the claims pro-
cess is completely proper, given the Pension Plan’s concern
for finality of decisions. See Admin. Comm. of Wal-Mart Stores,
Inc. Assoc. Health & Welfare Plans v. Varco, 338 F.3d 680, 691
(7th Cir. 2003); 29 U.S.C. § 1104(a)(1)(D).
  Moreover, the Social Security determination would have
no bearing on which benefits Tegtmeier should have re-
ceived. Under the Pension Plan, the actual date of disability
was not the crucial date for benefits purposes. Rather, the
effective date for benefits depended on the date of the filing
of the application. The Social Security determination merely
indicated that Tegtmeier was disabled beginning in July
2001 and did not shed any light on the pivotal question of
12                                                No. 04-1025

which pension application, if either, had an effect on its
decision. In such a situation, the Pension Fund’s decision
not to reopen this issue was reasonable.


                              B.
  We next address Tegtmeier’s claim that the Pension Fund
employees breached their fiduciary duty to him under ERISA
by misrepresenting his ability to put the initial application
on hold. Under ERISA, a fiduciary must “discharge his in-
terests with respect to a plan solely in the interest of the
participants and beneficiaries.” 29 U.S.C. § 1004(a)(1).
“Fiduciaries breach their duty of loyalty and care if they
mislead plan participants or misrepresent the terms or
administration of a plan.” Anweiler v. Am. Elec. Power Serv.
Corp., 3 F.3d 986, 991 (7th Cir. 1993). “Not all errors in com-
municating information regarding a plan violate a fiduciary’s
duty under ERISA, but ‘material facts affecting the interests
of plan participants or beneficiaries’ must be disclosed.”
Kamler v. H/N Telecomm. Serv., Inc., 305 F.3d 672, 681 (7th
Cir. 2002) (quoting Bowerman v. Wal-Mart Stores, Inc., 226
F.3d 574, 590 (7th Cir. 2000)).
   Before determining whether a fiduciary duty has been
breached here, we must first decide whether a fiduciary was
involved. See Schmidt v. Sheet Metal Workers’ Nat’l Pension
Fund, 128 F.3d 541, 547 (7th Cir. 1997) (“It goes without
saying that a claim for breach of fiduciary duty lies only
against an individual or entity that qualifies as an ERISA
‘fiduciary.’ ”). As Tegtmeier has identified Kot as the pos-
sible culprit responsible for making erroneous statements
about his ability to put his pension application on hold in-
definitely, we, like the parties, must inquire into her status
as a fiduciary. When examining whether an employee or
administrator actually is a fiduciary, we must concentrate
No. 04-1025                                                   13

on the degree of discretion entrusted to that person. See, e.g.,
Pohl v. Nat’l Benefits Consulting, Inc., 956 F.2d 126, 129 (7th
Cir. 1992); Schmidt, 128 F.3d at 547.
  Tegtmeier fails in his attempt to paint Kot as a fiduciary.
He relies both on the Pension Plan’s language as well as
Kot’s job responsibilities in this endeavor, but to no avail.
First, Tegtmeier contends that Kot’s position, as an indi-
vidual charged with the day-to-day administration of the
Pension Plan, by itself makes her a fiduciary. The Pension
Plan does establish that “the Trustees may employ or retain
the services of one or more individuals to carry out the day-
to-day administration . . . of whom the chief executive shall
be known as the ‘Administrative Manager.’ ” This designa-
tion alone, however, does not transform someone into a
fiduciary. See Pohl, 956 F.2d at 129 (“Which is not to say that
a Plan Administrator can never be a fiduciary. That depends
on its powers.”) (emphasis added). Tegtmeier described
several of Kot’s responsibilities which he thought were
discretionary in nature. As the Pension Fund notes, how-
ever, the United States Department of Labor regulations
designate the administrative functions that Tegtmeier
referenced as ministerial rather than discretionary. See 29
C.F.R. § 2509.75-8 (“A person who performs purely ministerial
functions such as the types described above for an employee
benefit plan within a framework of policies, interpretations,
rules, practices and procedures made by other persons is not
a fiduciary. . . .”). “In assessing whether a person can be
held liable for breach of fiduciary duty, ‘a court must ask
whether [that] person is a fiduciary with respect to the
particular activity at issue.’ ” Plumb v. Fluid Pump Serv., Inc.,
124 F.3d 849, 854 (7th Cir. 1997) (quoting Coleman v. Nation-
wide Life Ins. Co., 969 F.2d 54, 61 (4th Cir. 1992)). Tegtmeier
has not presented evidence that would allow us to conclude
that Kot was anything but a ministerial employee for the
activities Tegtmeier described.
14                                               No. 04-1025

  While Kot is not a fiduciary, the Pension Fund might still
be liable for breach of fiduciary duties if Kot, a ministerial
employee, misrepresented the terms of the Pension Plan and
the Pension Plan documents were not clear. See Schmidt, 128
F.3d at 548. Tegtmeier cannot succeed in this regard because
the Pension Plan documents were clear. While it is true that
neither the Pension Plan nor the Summary Plan Description
addressed a “hold” on applications, they do not need to
address every contingency. See Herrman v. Cencom Cable
Assoc., Inc., 978 F.2d 978, 984 (7th Cir. 1992) (“Larding the
summary with minutiae would defeat that document’s
function: to provide a capsule guide in simple language for
employees.”). The Pension Plan clearly described the pro-
cedures for filing an application. Tegtmeier’s attempt to
create a new “hold” procedure, which never existed under
the Plan, does not make the Plan defective, ambiguous, or
incomplete. Tegtmeier is trying to use alleged oral state-
ments to modify the Pension Plan, which ERISA forbids. See
Schoonmaker v. Employee Savs. Plan of Amoco Corp., 987 F.2d
410, 412 (7th Cir. 1993). As the Pension Plan documents
were clear, there was no breach of fiduciary duty.
  In an attempt to make a showing of breach of fiduciary
duty, Tegtmeier relies heavily on Bowerman v. Wal-Mart
Stores, Inc., 226 F.3d 574 (7th Cir. 2000). Bowerman was a
situation in which an employee briefly left Wal-Mart’s em-
ploy and, upon her return, discovered a gap in her benefits
despite numerous representations that her coverage had con-
tinued. Tegtmeier emphasizes that both in Bowerman and in
the present case, neither the pension plans nor the summary
plan descriptions explicitly addressed the particular fact
situations at issue. However, this is where the similarities
end. In Bowerman, the court noted that the summary plan
description should have dealt with the situation because it
was common enough to recur repeatedly and affect people
No. 04-1025                                                  15

besides Bowerman. Id. at 590-91 (“In this case, the informa-
tion the Plan should have provided to Ms. Bowerman
would not have been information unique to her situation;
rather, the information she needed would have been
information relevant to all Plan participants who were
rehired by Wal-Mart within a few weeks or months after
leaving the company.”). This is not our situation. Instead of
demonstrating that a gap in the Pension Plan existed,
Tegtmeier created a gap by fashioning a benefit unique to his
circumstances and trying to impose it on the Pension Plan.
There was no need for either the Pension Plan or the
Summary Plan Description to deal with a “hold” situation
because it did not exist before Tegtmeier and was exclusive
to him. As the district court recognized, this would be a
very unique situation in which one would apply for perm-
anent disability benefits before knowing whether the disability
was permanent. Tegtmeier’s reliance on Bowerman is mis-
        4
placed.


                              III.
  Tegtmeier attempted to maximize his benefits under the
two plans and miscalculated the effects of his moves. While
the result was unfortunate, we cannot say that the Pension
Fund acted arbitrarily and capriciously or breached its
fiduciary duties when processing Tegtmeier’s claim.
                                                    AFFIRMED.




4
  As Tegtmeier has failed to succeed on any of his claims, we do
not reach his arguments regarding potential remedies.
16                                           No. 04-1025

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—12-7-04
