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

No. 02-3100
MARK C. HAWKINS,
                                                   Plaintiff-Appellant,
                                  v.

FIRST UNION CORPORATION LONG-TERM DISABILITY PLAN,
                                                  Defendant-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 02 C 0456—Suzanne B. Conlon, Judge.
                          ____________
     ARGUED FEBRUARY 25, 2003—DECIDED APRIL 22, 2003
                          ____________


  Before POSNER, COFFEY, and WILLIAMS, Circuit Judges.
  POSNER, Circuit Judge. Mark Hawkins was denied long-
term disability benefits by his employer’s welfare plan,
sued under ERISA, and now appeals from the grant of
summary judgment to the plan. Hawkins was employed
full time to supervise the processing, auditing, and (if
necessary) rebilling of a class of invoices. The job required
him to sit more or less all day at a computer, reading and
typing. In 1993 he was diagnosed with fibromyalgia, and
since 1996 he has been treated for this condition by Dr.
Robert Katz, a rheumatologist. In 2000 he stopped working
and applied for total-disability benefits, to which he was
2                                                No. 02-3100

entitled by the terms of the welfare plan if his medical
condition prevents him from working a minimum of 80
percent of the normal full-time work week either at his
normal occupation or at some other occupation for which he
might be fitted by training or experience. This would have
to be a job similar to the one he held, hence a job that
consisted of sitting at, and reading and typing on, a com-
puter.
  As we explained in Sarchet v. Chater, 78 F.3d 305, 306-
07 (7th Cir. 1996) (citations omitted), fibromyalgia, “also
known as fibrositis [is] a common, but elusive and mysteri-
ous, disease, much like chronic fatigue syndrome, with
which it shares a number of features. Its cause or causes are
unknown, there is no cure, and, of greatest importance
to disability law, its symptoms are entirely subjective.
There are no laboratory tests for the presence or severity of
fibromyalgia. The principal symptoms are ‘pain all over,’
fatigue, disturbed sleep, stiffness, and—the only symptom
that discriminates between it and other diseases of a
rheumatic character—multiple tender spots, more precisely
18 fixed locations on the body (and the rule of thumb is
that the patient must have at least 11 of them to be diag-
nosed as having fibromyalgia) that when pressed firmly
cause the patient to flinch. . . . There is no serious doubt
that Sarchet is afflicted with the disease but it is difficult
to determine the severity of her condition because of the
unavailability of objective clinical tests. Some people may
have such a severe case of fibromyalgia as to be totally
disabled from working, but most do not and the question
is whether Sarchet is one of the minority.” That is the
same question that confronted the plan in this case. It
does not deny that Hawkins has fibromyalgia; he has 14
“points,” well above the threshold of 11. But it found that
he is not among the minority of fibromyalgia sufferers
who are totally disabled, even though Dr. Katz reported
No. 02-3100                                                3

that Hawkins cannot sit or stand for more than a few
minutes at a time. In Katz’s words, “This patient struggles
through each activity of his day due to pain, fatigue and
headaches. He needs frequent rest periods each hour.
Since this condition is chronic we do not anticipate a
marked increase in functional level without increase in
pain.”
  The plan turned down Hawkins’ application for two
reasons: because an “activities questionnaire” that the
plan had required him to fill out indicated a greater ability
to work than Dr. Katz had reported and because the plan’s
medical consultant, Dr. Chih-Hao Chou, advised after ex-
amining Hawkins’ medical records and talking by telephone
with Dr. Katz that Hawkins was not totally disabled. Be-
cause the terms of the plan reserve discretion to the plan’s
administrator, we cannot reverse unless the determina-
tion that Hawkins is not totally disabled is not merely
erroneous but “arbitrary and capricious,” that is, unrea-
sonable.
  Each party makes a bad argument, and let us clear them
out of the way. Hawkins argues that the plan was required
to give greater weight to the opinion of the treating physi-
cian, Dr. Katz, than to the opinion of the consultant, Dr.
Chou, especially since Chou did not examine Hawkins
but merely read his medical records and discussed his
condition with Katz over the phone. A number of social
security disability cases apply a “treating-physician pre-
sumption,” e.g., Clifford v. Apfel, 227 F.3d 863, 870 (7th
Cir. 2000); Shramek v. Apfel, 226 F.3d 809, 814 (7th Cir.
2000); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000); see
also 20 C.F.R. § 404.1527(d)(2), though there are grounds
for skepticism; physicians naturally tend to support their
patients’ disability claims, and so we have warned against
“the biases that a treating physician may bring to the
disability evaluation,” Dixon v. Massanari, 270 F.3d 1171,
4                                                  No. 02-3100

1177 (7th Cir. 2001), explaining that “the patient’s regular
physician may want to do a favor for a friend and client,
and so the treating physician may too quickly find disabil-
ity.” Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir. 1985);
see also Brown v. Apfel, 192 F.3d 492, 500 (5th Cir. 1999).
But such skepticism may have a stronger basis when the
treating physician squares off against a neutral consultant
appointed by the Social Security Administration than when
the consultant is hired by the administrator of a private plan
and so may have a financial incentive to be hard-nosed
in his claims evaluation in order to protect the financial
integrity of the plan and of the employer that funds it. Ladd
v. ITT Corp., 148 F.3d 753, 754 (7th Cir. 1998); Van Boxel v.
Journal Co. Employees’ Pension Trust, 836 F.2d 1048, 1052-53
(7th Cir. 1987). If the incentives of the treating physician and
of the plan’s consultant are assumed to be equal and
opposite, consideration of incentives drops out and the
superior information likely to be possessed by the treating
physician, especially when as in this case the consultant
does not bother to examine the patient, may support the
treating-physician presumption after all. See Bali v. Blue
Cross & Blue Shield Ass’n, 873 F.2d 1043, 1048 (7th Cir. 1989);
cf. Whitson v. Finch, 437 F.2d 728, 732 (6th Cir. 1971).
  The courts are divided on whether the presumption
applies to benefits determinations by administrators of
ERISA plans. Compare Nord v. Black & Decker Disability
Plan, 296 F.3d 823, 831 (9th Cir. 2002), cert. granted, 123
S. Ct. 817 (2003); Darland v. Fortis Benefits Ins. Co., 317 F.3d
516, 532-33 (6th Cir. 2003); Jackson v. Metropolitan Life Ins.
Co., 303 F.3d 884, 888 (8th Cir. 2002); Skretvedt v. E.I. Du Pont
de Nemours & Co., 268 F.3d 167, 184 (3d Cir. 2001), and
Regula v. Delta Family-Care Disability Survivorship Plan, 266
F.3d 1130, 1139 (9th Cir. 2001), with Connors v. Connecticut
General Life Ins. Co., 272 F.3d 127, 135 n. 4 (2d Cir. 2001);
Elliott v. Sara Lee Corp., 190 F.3d 601, 607-08 (4th Cir. 1999),
No. 02-3100                                                  5

and Salley v. E.I. DuPont de Nemours & Co., 966 F.2d 1011,
1016 (5th Cir. 1992). We have not addressed the issue. See
also Leahy v. Raytheon Co., 315 F.3d 11, 20-21 (1st Cir. 2002)
(reserving it). Maybe the Supreme Court will resolve it
in the Nord case. What is curious about the cases that we’ve
cited is that all of them treat the issue as one for the re-
viewing court to resolve. But the procedures followed
by plan administrators are matters of contract. Nothing
compels an ERISA plan either to adopt or to reject a
treating-physician presumption. We know that a plan
may specify the degree of deference due the plan adminis-
trator’s benefit determinations, and hence the scope of
judicial review. Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989); Herzberger v. Standard Ins. Co., 205 F.3d 327,
332 (7th Cir. 2000). Why can’t it equally specify the proce-
dures and rules of evidence, including presumptions, that
the plan’s administrator shall use to evaluate claims?
Hawkins does not argue that, fairly read, the plan in
this case incorporates the presumption.
  The plan’s bad argument is that because Hawkins worked
between 1993 and 2000 despite his fibromyalgia and there
is no indication that his condition worsened over this
period, he cannot be disabled. This would be correct were
there a logical incompatibility between working full time
and being disabled from working full time, but there is
not. A desperate person might force himself to work de-
spite an illness that everyone agreed was totally dis-
abling. Perlman v. Swiss Bank Corp. Comprehensive Disability
Protection Plan, 195 F.3d 975, 982-83 (7th Cir. 1999); Wilder
v. Apfel, 153 F.3d 799, 801 (7th Cir. 1998); Wilder v. Chater,
64 F.3d 335, 337-38 (7th Cir. 1995); Jones v. Shalala, 21 F.3d
191, 192-93 (7th Cir. 1994). Yet even a desperate person
might not be able to maintain the necessary level of effort
indefinitely. Hawkins may have forced himself to con-
tinue in his job for years despite severe pain and fatigue
6                                               No. 02-3100

and finally have found it too much and given it up even
though his condition had not worsened. A disabled person
should not be punished for heroic efforts to work by being
held to have forfeited his entitlement to disability benefits
should he stop working.
   This bad argument does not invalidate but does under-
mine the plan’s reliance on the fact that Hawkins’ activ-
ities questionnaire may (the uncertainty implicit in our
choice of this word is deliberate) disclose a higher level
of activity than Dr. Katz reported. We learn from it that
Hawkins has been taking classes in an effort to become
a Web designer and that he surfs the Web for an hour or
so at night and sometimes does some housework. Ob-
viously a Web designer works at a computer, but there
is nothing in the answers to the questionnaire to indicate
that Hawkins is sitting full time, as it were, or that he has
any aspiration to be a full-time Web designer (or for that
matter an 80 percent of full-time Web designer). And when
one is working at home it is easier to interrupt one’s work
every few minutes if need be than to do so at the office.
But what is most important and ties back to the plan’s
bad argument is that Hawkins’ unfortunate choice in life
is between succumbing to his pain and fatigue and be-
coming inert, on the one hand, and on the other hand
pushing himself to engage in a certain amount of painful
and fatiguing activity. If he does the latter, it does not
prove that he is not disabled.
  We can imagine an argument that even if the activity
disclosed in the questionnaire does not indicate a capacity
to engage in full-time work, the fact that it is discrepant
with the level of activity described by Dr. Katz, presumably
on the basis of representations made to him by Hawkins,
fatally undermines Hawkins’ credibility. But that argu-
ment is not made.
No. 02-3100                                                  7

  That leaves the plan with only Dr. Chou’s report to
stand on. We cannot quote it in full, but the following
excerpts will indicate its unsatisfactory character: “Although
Ms. [sic] Hawkins has been diagnosed with fibromyalgia,
the majority of individuals with fibromyalgia are able
to work. . . . According to a personal activities question-
naire, . . . Mr. Hawkins reported that he was able to take
classes and undergo pool therapy. . . . There are no objec-
tive findings to support restrictions. . . . Although Mr.
Hawkins has various subjective complaints, he has been
able to perform various extracurricular activities, includ-
ing pursuing further education. The diagnosis of fibro-
myalgia does not, in and of itself, produce permanent
impairment. . . . [I]ndividuals with chronic pain benefit
when their lives have purpose and meaning. Although
Mr. Hawkins may report an increase in subjective pain
complaints on a return to work, an inability to work with-
in the guidelines . . . is not objectively supported in the
medical records.”
  The fact that the majority of individuals suffering from
fibromyalgia can work is the weakest possible evidence
that Hawkins can, especially since the size of the majority
is not indicated; it could be 50.00001 percent. The fact
that he can undergo pool therapy says nothing about his
condition, nor the fact, a variant of the first point, that the
diagnosis of fibromyalgia does not in and of itself prod-
uce permanent impairment. (Obviously the diagnosis prod-
uces nothing, but one sees what Dr. Chou was driving
at—and it is still irrelevant.) The reference to “extracurricu-
lar activities” is hopelessly vague. That individuals with
chronic pain benefit when their lives have purpose and
meaning is certainly a sensible suggestion, but it favors
Hawkins’ claims as much it counters it, since a striving
for purpose and meaning may explain why Hawkins may
8                                              No. 02-3100

be exerting himself beyond his capacity, paradoxical as
“working beyond capacity” may seem.
   But the gravest problem with Dr. Chou’s report is the
weight he places on the difference between subjective and
objective evidence of pain. Pain often and in the case of
fibromyalgia cannot be detected by laboratory tests. The
disease itself can be diagnosed more or less objectively by
the 18-point test (although a canny patient could pretend
to be feeling pain when palpated at the 18 locations—but
remember that the accuracy of the diagnosis of Hawkins’
fibromyalgia is not questioned), but the amount of pain
and fatigue that a particular case of it produces cannot be.
It is “subjective”—and Dr. Chou seems to believe, errone-
ously because it would mean that fibromyalgia could
never be shown to be totally disabling, which the plan
does not argue, that because it is subjective Hawkins is
not disabled.
   What makes this nevertheless a close case is the deferen-
tial review that a plan’s determinations receive when as
in this case the terms of the plan vest the plan’s admin-
istrator with discretion to grant or deny applications for
benefits under it. But the discretion is not unlimited. The
record contains nothing more than scraps to offset the
evidence presented by Hawkins and by Dr. Katz. The
denial of the application was unreasonable.
  The judgment is reversed and the case remanded to the
district court for further proceedings consistent with this
opinion.
No. 02-3100                                             9

A true Copy:
       Teste:

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




                USCA-02-C-0072—4-22-03
