                             In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2754

E DWARD R AYBOURNE,
                                                 Plaintiff-Appellant,
                                 v.

C IGNA L IFE INSURANCE C OMPANY OF N EW Y ORK,

                                                Defendant-Appellee.


            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 07 C 3205—Robert W. Gettleman, Judge.



       A RGUED JULY 8, 2009—D ECIDED A UGUST 6, 2009




 Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
  R OVNER, Circuit Judge. Edward Raybourne suffers
from a number of degenerative conditions in his right
foot, and especially in his great right toe. In 2003 he
stopped working because of the severe pain that these
conditions cause. Raybourne initially received long-term
disability benefits under his employer’s group benefit
plan, which is insured by Cigna Life Insurance
Company of New York. However, two years later Cigna
2                                              No. 08-2754

determined that he no longer qualified for benefits
because he could not meet the plan’s requirement of
showing that his disability prevented him from
performing any job. Raybourne then brought this ERISA
suit under 29 U.S.C. § 1132(a)(1)(B). The district court
concluded that Cigna did not abuse its discretion in
discontinuing Raybourne’s benefits and granted Cigna
summary judgment. The key questions in this appeal
concern the appropriate standard of judicial review and
the application of the Supreme Court’s recent pronounce-
ment in Metropolitan Life Insurance Company v. Glenn,
128 S.Ct. 2343, 2348 (2008), advising courts to take cogni-
zance of structural conflicts in ERISA cases. Although
we conclude that the district court properly reviewed
Cigna’s decision under the abuse-of-discretion standard,
we cannot be sure that it adequately accounted for
Cigna’s structural conflict of interest, as required by
Glenn. Accordingly, we vacate and remand for further
proceedings.


                       Background
  After serving for 23 years as a Quality Control Manager
for L-3 Communications Holdings, Inc., Raybourne
stopped working in 2003 to undergo the first of four
surgeries on his right foot. The surgeries were meant to
alleviate the pain caused by a degenerative joint disease
in his right great toe.
  From December 2003 through February 2006 Cigna
paid Raybourne long-term disability benefits under L-3’s
benefit plan. The L-3 plan provides long-term disability
payments for 24 months if the beneficiary’s condition
No. 08-2754                                             3

prevents him from performing his regular job. After 24
months a more stringent standard kicks in: the beneficiary
must be unable to perform “all the material duties of any
occupation” that he is reasonably qualified for based on
his education, training, or experience.
  In June 2005—six months before the end of Raybourne’s
initial 24-month period—Cigna began to investigate
whether he qualified for further benefits under the
more stringent standard. Cigna requested updated
medical records from Raybourne’s doctors, including
Dr. Ronald Sage, a podiatrist who had performed
Raybourne’s third and fourth surgeries. Dr. Sage reported
that Raybourne could sit, stand, or walk for less than two
and a half hours in an eight-hour day. He expected
Raybourne’s condition to continue indefinitely. Cigna
submitted Raybourne’s medical files and Dr. Sage’s
reports to three case managers, who referred Raybourne
for an independent medical examination (“IME”).
   The IME was conducted by Dr. J.S. Player, a board-
certified orthopedic surgeon. He reviewed the medical
files and in January 2006 he physically examined Ray-
bourne. Dr. Player noted that Raybourne walked with
a cane but observed that he maintained a normal
posture while standing and appeared comfortable sitting
for extended periods. He agreed that Raybourne had a
degenerative joint disease in his right great toe and that
he suffered from a loss of motion and strength in his
right foot. But Dr. Player concluded that Raybourne
was engaging in “symptom magnification” and had an
“abnormally high degree of perceived disability.” He
4                                              No. 08-2754

also concluded that Raybourne could return even to his
former job as long as he did not have to walk or climb
stairs.
  In February 2006 Cigna sent Dr. Player’s IME to Dr. Sage
and asked for his comments. Dr. Sage said that he
agreed with Dr. Player’s findings based on the physical
examination, but reiterated that Raybourne could not
return to his former job because of the severity of his
foot pain. The same month, a rehabilitation specialist
retained by Cigna identified six jobs that Raybourne
could perform in the Chicago market.
  By letter dated March 1, 2006, a Cigna claim manager
informed Raybourne that Cigna had decided to terminate
his long-term disability benefits. Raybourne appealed
using Cigna’s internal appeals process. He submitted
an April 2006 report from Dr. Sage confirming that his
chronic degenerative conditions left him unable to
work. He also submitted a social security form com-
pleted by Dr. Sage reporting that he suffered from “intrac-
table pain.” An appeals claim manager consulted with
Dr. R. Norton Hall, an associate medical director at
Cigna, who concluded that Dr. Sage’s report did not
establish that Raybourne was incapable of performing
all work. The manager concluded that Raybourne’s new
evidence was insufficient to overcome the conclusions
of Drs. Hall and Player that he could perform sedentary
work. Accordingly, the appeals claim manager upheld
the denial of benefits.
  Six months later Raybourne filed his second internal
appeal. He argued that Cigna should disregard the IME
No. 08-2754                                             5

because, he said, Dr. Player had not considered his pain
or the side effects of his pain medication. He also sub-
mitted a copy of a favorable social security disability
ruling, dated three days before Raybourne’s first appeal
was denied. In that ruling, the administrative law judge
found that Raybourne’s willingness to undergo surgery
in attempts to alleviate his pain showed that the pain
was genuine and concluded that he was incapable of
performing full-time work.
  As part of the review process, Cigna forwarded
Raybourne’s new evidence to a second associate
medical director, Dr. Paul Seifarth. Dr. Seifarth noted
Dr. Sage’s remark that pain would prevent Raybourne
from concentrating enough to work, but dismissed the
remark as unsubstantiated. In May 2007 an appeals
claim manager denied Raybourne’s second appeal.
  This suit followed. At summary judgment, one of the
key disputed issues was the appropriate standard of
review under which the district court would review
Cigna’s decision to deny benefits. Ultimately the court
concluded that the plan conferred discretion on Cigna to
make this decision, thereby requiring review under the
abuse-of-discretion standard. The court was “disturbed” by
the discrepancy between Cigna’s decision and the
social security award and acknowledged that under a
less deferential standard of review it might overturn
Cigna’s decision. But the court concluded that Cigna had
not abused its discretion in denying Raybourne’s claim
for benefits, and accordingly, it granted Cigna summary
judgment.
6                                               No. 08-2754

                         Analysis
  This court reviews a district court’s grant of summary
judgment on an ERISA claim de novo. Semien v. Life Ins.
Co. of N. Am., 436 F.3d 805, 809 (7th Cir. 2006).


A. The Proper Standard of Review under ERISA
  A central question in this appeal is whether this court
should review Cigna’s decision de novo, as Raybourne
argues, or as Cigna argues, for abuse of discretion. The
answer hinges on the language of the plan documents.
See Glenn, 128 S.Ct. at 2348; Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 115 (1989). De novo review is pre-
sumed to apply unless the plan documents clearly state
that the plan administrator has discretionary authority
to determine whether benefits are due. Firestone, 489
U.S. at 115; Herzberger v. Standard Ins. Co., 205 F.3d 327,
331 (7th Cir. 2000). A plan’s express grant of discretion
to the administrator lowers the standard of judicial scru-
tiny from de novo to abuse-of-discretion. Firestone, 489
U.S. at 115.
  To demonstrate that the abuse-of-discretion stan-
dard applies, Cigna points to a document entitled “Em-
ployee Welfare Benefit Plan Appointment of Claim Fidu-
ciary” (hereafter, “Claim Fiduciary Appointment”),
which grants Cigna “the authority, in its discretion, to
interpret the terms of the Plan . . . to decide questions of
eligibility for coverage or benefits under the Plan.” That
grant of discretion is also described in a Summary
Plan Description (“SPD”), which states that “[t]he Plan
No. 08-2754                                                7

Administrator has delegated to the insurance company
the full and complete discretionary authority and respon-
sibility to decide all questions of eligibility for benefits
under the Plan.” This court has found similar (indeed,
almost identical) language to be sufficient to trigger re-
view under the abuse-of-discretion standard. See Leipzig
v. AIG Life Ins. Co., 362 F.3d 406, 408 (7th Cir. 2004);
Herzberger, 205 F.3d at 331.
  Instead of suggesting that the quoted language is insuf-
ficient to confer discretion, Raybourne argues that the
Claim Fiduciary Appointment is not a plan document.
According to Raybourne, the Claim Fiduciary Appoint-
ment is an extrinsic document that he did not receive
until this litigation was underway, and it is neither incor-
porated nor referenced anywhere in the plan. But the
language of the Claim Fiduciary Agreement explains
why Raybourne did not receive it—it states that the
plan administrator must describe its discretion “in Sum-
mary Plan Descriptions furnished to Participants.” The
SPD—which describes the plan’s grant of discretion to
Cigna—explains that the “actual provisions of the Plan
are set forth in the insurance policy and the claims fidu-
ciary agreement between L-3 Communications and
Cigna.” Elsewhere we have rejected Raybourne’s assump-
tion that only the original plan (here, the underlying
insurance policy) may be considered in determining
whether a plan administrator is entitled to deference:
“often the terms of an ERISA plan must be inferred from
a series of documents none clearly labeled as ‘the
plan.’ ” Semien, 426 F.3d at 811 (citation omitted); Ruiz
v. Continental Cas. Co., 400 F.3d 986, 990-91 (7th Cir. 2005)
8                                               No. 08-2754

(noting that an insurance policy and a policy certificate
can be “plan documents”); see also Cagle v. Bruner, 112 F.3d
1510, 1517 (11th Cir. 1997) (noting that it is appropriate
to review trust documents “in the search for a reserva-
tion of discretion”). In Semien, we considered alongside
the original plan a fiduciary agreement similar to the
one put forth by L-3 here. 436 F.3d at 810-11. And given
that the Claim Fiduciary Appointment provides the
name of the plan and plan administrator, is signed by
representatives of the plan and Cigna, and states that
it “shall be effective” from the date of the underlying
insurance policy, it is difficult to see how it could be
anything other than a plan document.
  Raybourne argues relatedly that neither the Claim
Fiduciary Appointment nor the SPD is the type of docu-
ment that this court has considered sufficient to bestow
discretion on a plan. He relies on Ruttenberg v. United
States Life Insurance Company, 413 F.3d 652 (7th Cir.
2005), and Schwartz v. Prudential Insurance Company of
America, 450 F.3d 697 (7th Cir. 2006), but both of those
cases are distinguishable. In Ruttenberg we refused to
consider a grant of discretion set forth in an application
for employee benefits because the application rep-
resented only the negotiations leading up to the insurance
contract, and the contract itself was silent on the issue of
discretion. 413 F.3d at 660. By contrast, here the Claim
Fiduciary Appointment modifies the terms of the under-
lying plan, and its grant of discretion to Cigna is
described in the SPD furnished to L-3 employees. In
Schwartz we held that a grant of discretion that appears
in an SPD but not the underlying plan is insufficient to
No. 08-2754                                              9

warrant deferential review because an SPD—which is
meant to be a plain language version of the underlying
plan—may not confer rights that the plan itself does
not. 450 F.3d at 699. But here the discretion described in
Cigna’s SPD does not exist in a vacuum; the Cigna SPD
refers to the Claim Fiduciary Appointment and explains
the discretion that it confers. We thus conclude that the
Claim Fiduciary Appointment is a plan document, and
accordingly, the abuse-of-discretion standard of review
applies.


B. Applying the Abuse-of-Discretion Standard of
   Review After Glenn
  Under the arbitrary-and-capricious standard—which,
at least for ERISA purposes, is synonymous with abuse
of discretion—this court will overturn an admin-
istrator’s denial of benefits only if it lacks any rational
support in the record. See Jenkins v. Price Waterhouse
Long Term Disability Plan, 564 F.3d 856, 861 & n.8 (7th
Cir. 2009). In other words, this court’s role is not to
decide whether it would reach the same decision as the
administrator, Davis v. Unum Life Ins. Co. of Am., 444
F.3d 569, 576 (7th Cir. 2006); rather, as long as specific
reasons for the denial are communicated to the claimant
and supported by record evidence, this court will
uphold the administrator’s decision, see Leger v. Tribune
Co. Long Term Disability Ben. Plan, 557 F.3d 823, 831 (7th
Cir. 2009).
  Raybourne’s strongest argument on appeal is that the
district court insufficiently engaged the Supreme Court’s
10                                              No. 08-2754

recent decision in Metropolitan Life Insurance Company v.
Glenn, 128 S.Ct. 2343 (2008)—which issued just five days
before Cigna won summary judgment—in assessing
whether Cigna’s inherent conflict of interest (as a plan
administrator that both adjudicates claims and pays
awarded benefits) rendered its decision arbitrary and
capricious. In Glenn, the Supreme Court clarified that
courts should be aware of structural conflicts of interest
in reviewing plan decisions for abuse of discretion. Id. at
2348. A structural conflict is one factor among many
that are relevant in the abuse-of-discretion analysis—
including whether the administrator overemphasized
medical reports that favored its decision and whether
it gave its medical examiners all of the relevant evi-
dence—and will “act as a tiebreaker when the other factors
are closely balanced.” Id. at 2351-52. Glenn emphasizes
that courts should give additional weight to a structural
conflict where the administrator has a history of biased
claim administration or helped a claimant obtain a
social security award it then disregarded. Id. The con-
flict may be “less important (perhaps to the vanishing
point) where the administrator has taken active steps to
reduce potential bias and to promote accuracy.” Id. at 2351.
Although the Court stressed that there is no “precise
set of instructions” for weighing the relevant factors, it
emphasized that a structural conflict may not be ig-
nored. Id. at 2351-52.
  Raybourne correctly points out that it is unclear
whether the district court properly accounted for Cigna’s
structural conflict of interest. In its opinion awarding
Cigna summary judgment, the district court included a
No. 08-2754                                                11

short footnote recognizing that Glenn issued “[a]fter this
opinion was prepared,” and stating summarily that
“nothing in [Glenn] has altered” its analysis. The district
court then denied, without explanation, Raybourne’s
motion for reconsideration in light of Glenn.
   Given the district court’s cursory treatment of Glenn, we
cannot determine whether it engaged in the balancing
analysis that Glenn requires with respect to a plan ad-
ministrator’s conflict of interest. For instance, the district
court did not mention Cigna’s structural conflict in evalu-
ating and paying for claims, or explain how the conflict
weighed in the abuse-of-discretion balance. Moreover,
the court had little to say beyond acknowledging that
it was “disturbed” by the discrepancy it saw between
Cigna’s hiring of a consultant group to advocate on
Raybourne’s behalf before the SSA, and Cigna’s sub-
sequent denial of his claim for benefits despite the
SSA’s finding of disability. The court ultimately disre-
garded the discrepancy because it concluded that Cigna’s
decision was supported by the record. But after Glenn,
Cigna’s advocacy of a disability finding before the SSA
should have been treated as a “serious concern” for
the court to consider in weighing whether Cigna’s struc-
tural conflict rendered its denial of benefits arbitrary.
See DeLisle v. Sun Life Assurance Co. Of Canada, 558 F.3d
440, 446 (6th Cir. 2009).
  In the wake of Glenn, other circuits have not hesitated to
remand cases so that district courts may consider the
impact of a structural conflict in the first instance. See,
e.g., Denmark v. Liberty Life Assurance Co. of Boston, 566
12                                                No. 08-2754

F.3d 1, 9 (1st Cir. 2009); Hackett v. Standard Ins. Co., 559
F.3d 825, 830 (8th Cir. 2009); Burke v. Pitney Bowes Inc. Long-
Term Disability Plan, 544 F.3d 1016, 1027 (9th Cir. 2008). A
remand is similarly appropriate here because the
district court’s cursory reference to Glenn casts doubt on
whether it properly analyzed Cigna’s structural conflict.
A remand will ensure that the court conducts in the first
instance the balancing analysis that Glenn requires. We
recognize that ultimately Cigna’s conflict will tip the
balance only if the district court concludes that this is a
borderline case, see Glenn, 128 S.Ct. at 2351; Jenkins, 564
F.3d at 861-62, but after weighing Cigna’s conflict
together with factors such as its pursuit of the social
security award and its willingness to discount Ray-
bourne’s subjective pain complaints, the court might
view Raybourne’s case as borderline. We thus follow the
lead of our sister circuits and remand to allow the
district court, in the first instance, to consider how
heavily Cigna’s conflict weighs in the abuse-of-discretion
balance.
  The judgment of the district court is V ACATED and the
case is R EMANDED for further proceedings.




                             8-6-09
