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

No. 05-1916
DENNIS F. SPERANDEO,
                                                  Plaintiff-Appellant,
                                  v.

LORILLARD TOBACCO COMPANY,
INCORPORATED, and CONTINENTAL CASUALTY
COMPANY, also known as CNA,
                                Defendants-Appellees.
                   ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 04 C 3214—Harry D. Leinenweber, Judge.
                          ____________
       ARGUED MAY 2, 2006—DECIDED AUGUST 18, 2006
                          ____________


  Before CUDAHY, RIPPLE and WOOD, Circuit Judges.
  RIPPLE, Circuit Judge. Dennis Sperandeo brought this
action under the Employee Retirement Income Security
Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. He sought an
award of disability payments under ERISA, 29 U.S.C.
§ 1132(a)(1)(B), seeking disability income benefits from
Lorillard Tobacco Company, Inc.’s (“Lorillard”) Group
Disability Income Insurance Policy, underwritten by
Continental Casualty Company, also known as CNA
(“CNA”). The district court granted summary judgment
2                                                 No. 05-1916

in favor of the plan administrator CNA. For the reasons
set forth in the following opinion, we affirm in part and
reverse in part the judgment of the district court and
remand the case to the district court for further proceedings
consistent with this opinion.


                              I
                     BACKGROUND
A. Facts
  Mr. Sperandeo began working at Lorillard as a sales
representative in September 1970. On May 7, 2001, he
was involved in an automobile accident while he was
delivering boxes of tobacco to one of Lorillard’s customers.
As a result of this collision, he suffered injuries to his head
and shoulder. The hospital records from the day of the
accident indicate that Mr. Sperandeo suffered a concussion
and a “shoulder sprain.” R.14, Ex.B at 204-05. The extent
of those injuries, as well as their lasting effects on Mr.
Sperandeo, are disputed.
  Since the accident, Mr. Sperandeo has been treated by a
number of physicians and has undergone physical therapy.
On August 29, 2001, he underwent left rotator cuff and
acromioplasty surgery performed by Dr. David Zoellick. On
October 10, 2002, he underwent a second rotator cuff
reconstructive surgery performed by Dr. Jeffery Visotsky.
Mr. Sperandeo also was treated by a neurologist, Dr. Glen
Glista, and by an otologist-neurologist, Dr. Dennis Moore.
Additionally, he was examined by several other neuro-
logical specialists. With the exception of two days in
January 2002, Mr. Sperandeo has not returned to work
at Lorillard.
No. 05-1916                                                  3

  At all times relevant to this litigation, Mr. Sperandeo
was covered by Lorillard’s Group Disability Income Insur-
ance Policy, which is underwritten and administered by
CNA. The plan qualifies as a defined welfare benefit plan
under ERISA, 29 U.S.C. § 1002(1). The Certificate of Insur-
ance issued by CNA contains the following language
defining disability:
    How do We define Disability?
    Disability or Disabled means that You [the Lorillard
    employee to whom the Certificate was issued] satisfy
    the Occupation Qualifier or the Earnings Qualifier as
    defined below.
    Occupation Qualifier
    Disability means that during the Elimination Period and
    the following 24 months, Injury or Sickness causes
    physical or mental impairment to such a degree of
    severity that You are:
        1) continuously unable to perform the Material and
        Substantial Duties of Your Regular Occupation; and
        2) not Gainfully Employed.
R.14, Ex.A at 13, 25 (emphasis omitted). “Material and
Substantial Duties” of employment are defined to mean “the
necessary functions of Your Regular Occupation which
cannot be reasonably omitted or altered.” Id. at 24 (emphasis
omitted).
  On July 10, 2002, Mr. Sperandeo filed a claim with
Lorillard for long term disability benefits under the plan;
Lorillard submitted Mr. Sperandeo’s claim to CNA for
review. The claim was accompanied by a number of medical
records submitted by Mr. Sperandeo and a Physical De-
mands Analysis (“PDA”) completed by Lorillard. The PDA
detailed the primary duties of the job of sales representative,
4                                                   No. 05-1916

which included driving to and from clients’ businesses,
rotating and checking clients’ inventories of cigarettes,
assembling display units and data entry. The PDA outlined
the physical demands of accomplishing these duties. They
included bending, twisting, extending/reaching and lifting
products weighing from two pounds for one carton of
cigarettes to thirty-eight pounds for a whole case.
  CNA employees reviewed Mr. Sperandeo’s medical
records and interviewed him regarding his symptoms and
limitations. On October 4, 2002, CNA denied Mr.
Sperandeo’s claim for benefits. CNA informed Mr.
Sperandeo that the medical evidence did not support
“functional impairments from either a physical or men-
tal/nervous standpoint that would continuously pre-
clude [him] from performing the substantial and material
duties” of a sales representative. Id., Ex.B at 188.
  Mr. Sperandeo appealed this decision and supplied CNA
with additional medical records. On January 28, 2003, the
appeals committee notified him that it had upheld the
denial of benefits. See id. at 5-6. Mr. Sperandeo then brought
this action against CNA and Lorillard1 under ERISA, 29
U.S.C. § 1132(a)(1)(B), seeking an award of disability income
benefits under the plan.




1
  The district court granted summary judgment to defendant
Lorillard, stating that, under ERISA, only the plan is a proper
defendant. See R.26 at 5-6 (citing 29 U.S.C. § 1132(a)(1)(B)). The
district court therefore concluded that Lorillard, Mr. Sperandeo’s
employer, is not the proper party. Id. Mr. Sperandeo has not
appealed the grant of summary judgment to Lorillard, and
accordingly, the only remaining defendant for the purposes of
this appeal is CNA.
No. 05-1916                                                     5

B. District Court Proceedings
                               1.
   In ruling on CNA’s motion for summary judgment, the
district court first decided that the appropriate standard
for its review of CNA’s determination was de novo. In
reaching that conclusion, it articulated the rule set forth by
the Supreme Court in Firestone Tire and Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989). Under that rule, a denial of benefits
challenged under § 1132(a)(1)(B) is to be reviewed under a
de novo standard “unless the benefit plan gives the admin-
istrator or fiduciary discretionary authority to determine
eligibility for benefits or to construe the terms of the plan.”
Firestone, 489 U.S. at 115. The district court noted that the
language granting discretionary authority to CNA only was
found in the Summary Plan Description (“SPD”) and the
Certificate of Insurance (“Certificate”), not in the policy
itself. CNA had contended that the discretionary language
in the Certificate should be considered part of the policy or,
in the alternative, that it was incorporated into the policy.
The district court rejected both submissions. The court noted
that the Certificate explicitly states that the Certificate is not
part of the policy; similarly, the SPD states that it is not part
of the plan. The court further noted that the policy, while
discussing the contents of the Certificate, did not incorpo-
rate the Certificate into the policy. R.26 at 8. The district
court then reasoned that, because the discretionary language
was not part of the policy, it was not part of the
plan. Accordingly, the court followed the rule announced in
Firestone and concluded that de novo review was appropri-
ate.
6                                                 No. 05-1916

                              2.
   The district court then turned to the merits of the sum-
mary judgment motion. It determined that CNA was correct
in denying Mr. Sperandeo disability benefits based on his
shoulder injury. In the court’s view, the PDA established
that “a sales representative’s primary material and substan-
tial duties are driving, walking, sitting, and standing,” and
there was no medical evidence that Mr. Sperandeo’s
shoulder injury “impair[ed] his ability to perform these
tasks.” R.26 at 15. The court also noted that the PDA
indicated that a sales representative must lift cases of
cigarettes from floor to ceiling five times per day. Id. at 16.
The court recognized that Mr. Sperandeo had a permanent
lifting restriction of thirty-five pounds, and that some of the
cases of cigarettes would weigh as much as thirty-eight
pounds. Id. However, the court noted that the typical weight
of a case was twenty-one pounds and that without any
evidence of how often a case is over thirty-five pounds, and
thus over Mr. Sperandeo’s limit, the activity of lifting over
thirty-five pounds “cannot be considered to be a substantial
duty.” Id.
   The court also concluded that CNA’s decision to deny
benefits based on Mr. Sperandeo’s neurological condition
was correct. The court observed that Mr. Sperandeo did
provide evidence that he suffered from “post concussive
syndrome,” but, continued the court, the evidence did not
support the conclusion that it made him “continuously
unable to perform the material and substantial duties of his
job.” Id. (emphasis in original). The court supported this
conclusion by noting that Mr. Sperandeo had completed
a driving test that showed he could drive without lim-
itations and that several neurologists and a psychologist
believed that Mr. Sperandeo could return to work. The court
No. 05-1916                                                  7

further noted that Dr. Christopher Randolph, an examining
physician, had opined that Mr. Sperandeo was “exaggerat-
ing his symptoms and exerting little effort on his diagnostic
tests.” Id. Although a treating physician, Dr. Gerald Lewis,
did opine that Mr. Sperandeo should not return to work,
the court stated that this opinion was “contrary to the
driving test results and not supported by the other med-
ical opinions and evidence presented.” Id. Therefore, the
court concluded that Mr. Sperandeo was not entitled to
benefits based on his neurological condition.


                              II
                       DISCUSSION
A. Standard of Review
 We review a district court’s grant of summary judg-
ment de novo, drawing all reasonable inferences in the light
most favorable to the non-moving party. Vallone v. CNA Fin.
Corp., 375 F.3d 623, 631 (7th Cir. 2004).
   In this appeal, we also must determine whether the
district court employed the correct standard of review. CNA
submits that the district court erred in applying de novo
review rather than the “arbitrary and capricious” standard
in reviewing the denial of benefits. As we noted earlier, the
Supreme Court has stated that a denial of benefits is to be
reviewed de novo “unless the benefit plan gives the admin-
istrator or fiduciary discretionary authority to determine
eligibility for benefits or to construe the terms of the plan.”
Firestone, 489 U.S. at 115. CNA has the burden to establish
that the language of the plan gives it discretionary authority
to award benefits. See Gibbs ex rel. Estate of Gibbs v. CIGNA
Corp., 440 F.3d 571, 575 (2d Cir. 2006). We have emphasized
that the default standard of review is de novo and that, in
8                                                     No. 05-1916

order to alter this default standard, the “stipulation [for
deferential review] must be clear.” Herzberger v. Standard Ins.
Co., 205 F.3d 327, 332 (7th Cir. 2000).
  As a threshold matter, we must identify the documents
that constitute the plan. In other cases, identification of the
plan has presented difficult analytical questions. Indeed, we
have remarked that confusion as to what constitutes “the
plan” for purposes of ERISA is “all too common.” Health
Cost Controls of Ill., Inc. v. Washington, 187 F.3d 703, 712 (7th
Cir. 1999). In this respect, ERISA is not particularly helpful
in delineating those documents that constitute the plan.2
We, along with other circuits, however, have held that the
underlying insurance policy is a plan document for pur-
poses of determining the standard of review. See Ruiz v.
Cont’l Cas. Co., 400 F.3d 986, 991 (7th Cir. 2005) (citing
cases); see also Houston v. Provident Life & Accident Ins. Co.,
390 F.3d 990, 995 (7th Cir. 2004) (holding that language
granting discretion to the plan administrator found in the
insurance policy was sufficient to trigger arbitrary and
capricious review).




2
  29 U.S.C. § 1002(1) defines “employee welfare benefit plan” and
“welfare plan” as
    any plan, fund, or program which was heretofore or is
    hereafter established or maintained by an employer or by an
    employee organization, or by both, to the extent that such
    plan, fund, or program was established or is maintained
    for the purpose of providing for its participants or their
    beneficiaries, through the purchase of insurance or otherwise
    (A). . . benefits in the event of sickness, accident, disability,
    death or unemployment . . . .
No. 05-1916                                                    9

  After reviewing the record on appeal,3 we must con-
clude that the language of this policy contains no indication
that CNA is entitled to exercise unfettered discretion in
determining whether a Lorillard employee is eligible
for disability benefits. CNA points, however, to language in
the Certificate to support its view that it enjoys such discre-
tion:
    The plan administrator and other plan fiduciaries have
    discretionary authority to determine Your eligibility
    for and entitlement to benefits under the Policy. The
    plan administrator has delegated sole discretionary
    authority to Continental Casualty Company to deter-
    mine Your eligibility for benefits and to interpret the
    terms and provisions of the Policy.
R.14, Ex.A at 26 (emphasis omitted). Notably, however, the
Certificate further states that “[t]his certificate, however,
is not the Policy. It is merely evidence of insurance provided
under the Policy.” Id. at 4. Therefore, neither the Certificate
nor the policy contains language incorporating the Certifi-
cate into the policy. In fact, the opposite is true; the Certifi-
cate is explicitly not part of the policy.
 The Summary Plan Description (“SPD”) also indicates that
CNA has discretionary authority:
    The Administrator and other Plan fiduciaries have
    discretionary authority to interpret the terms of the Plan
    and to determine Your eligibility for and entitlement to
    benefits in accordance with the Plan. With respect to


3
  On this key point, the record in this case can be described
charitably as disheveled. Despite the importance of the docu-
ments to the outcome of this issue, the documents in the record
appear to be out of proper order.
10                                                      No. 05-1916

     making benefit decisions, the Plan Administrator has
     delegated sole discretionary authority to Continental
     Casualty Company to determine Your eligibility for and
     entitlement to benefits under Plan and to interpret the
     terms and provisions of any insurance policy issued in
     connection with the Plan.
Id. at 27. However, the SPD also states that it “does not
constitute a part of the Plan, nor of any insurance policy
issued in connection with it.” Id.
  On the record before us, then, the basic plan document,
the policy, contains no indication that CNA, as the plan
administrator, has authority to exercise the sort of discretion
that would justify the deferential judicial review discussed
in Firestone and Herzberger. Two other documents, the
Certificate and the SPD, do contain language conferring
discretion on CNA, but these two documents are not
incorporated by reference into the policy or plan. Indeed,
the terms of both documents make clear that they are not so
incorporated.
  This situation is not new to this court. Indeed, we recently
had occasion to deal with such a situation in Schwartz v.
Prudential Insurance Co. of America, 450 F.3d 697 (7th Cir.
2006). There we determined that a plan administrator
cannot rely on extra-plan documents to expand its discre-
tion when the plan itself bestows no such discretion.4 Id. at


4
  CNA relies on two cases in which discretionary language
appearing in a certificate of insurance, but not in a policy, was
deemed sufficient to trigger the arbitrary and capricious standard
of review. See Shyman v. Unum Life Ins. Co., 427 F.3d 452, 455 (7th
Cir. 2005); Ruiz v. Cont’l Cas. Co., 400 F.3d 986, 991 (7th Cir. 2005).
However, not only were both of these cases decided before
                                                        (continued...)
No. 05-1916                                                        11

699-700. In Schwartz, we noted our agreement with the
reasoning of our colleagues on the Court of Appeals for the
Eleventh Circuit in Shaw v. Connecticut General Life Insurance
Co., 353 F.3d 1276 (11th Cir. 2003), and on the Court of
Appeals for the Ninth Circuit in Grosz-Salomon v. Paul Revere
Life Insurance Co., 237 F.3d 1154 (9th Cir. 2001). Schwartz, 450
F.3d at 699. But see Murphy v. Int’l Bus. Machs. Corp., 23 F.3d
719, 721 (2d Cir. 1994) (assuming without analysis that a
grant of discretion in an SPD was sufficient, although the
court did not describe the remainder of the documents).
  Schwartz controls our decision today. Such a result is
also consonant with our oft-repeated concern that any
language conferring discretion on plan fiduciaries be clear
and unequivocal. See Diaz v. Prudential Ins. Co. of America,
424 F.3d 635, 637 (7th Cir. 2005). The lack of discretionary
language in the policy itself, coupled with explicit language
of the Certificate and the SPD that they are not part of the
policy, presents, at the very least, the sort of opaque situa-


4
  (...continued)
Schwartz v. Prudential Insurance Co. of America, 450 F.3d 697 (7th
Cir. 2006), but they also both contain factors not present in the
case before us. In Shyman, the “package of documents” from the
insurer stated that the certificate of insurance was part of the
policy unless it contradicted a clause of the policy, and neither
party contended that there was such a contradiction. 427 F.3d at
455. Therefore, the certificate was incorporated into the policy. In
this case, by contrast, the Certificate explicitly is not incorporated
into the policy. In Ruiz, we found that both an insurance policy
and a certificate of insurance were “plan documents” for pur-
poses of determining the appropriate standard of review;
however, there was no indication that the certificate in Ruiz
contained language explicitly stating that the certificate was not
part of the policy. See 400 F.3d at 991.
12                                                    No. 05-1916

tion that bars under our case law the application of
the deferential “arbitrary and capricious” standard of
review.
  As we emphasized in Schwartz, Diaz and Herzberger, a plan
easily can provide for the deferential standard by setting
forth in the plan a clear statement that the administrator has
the plenary discretionary authority that warrants the
application of such a standard of review. We have gone so
far as to draft model language to include in the plan. See
Herzberger, 205 F.3d at 331.5 Although we have cautioned
that our proposed language does not constitute “magic
words,” and that other articulations of discretionary power
would be sufficient to allow for the arbitrary and capricious
standard of review, we certainly have given plan adminis-
trators the tools to set up a plan that “will not be character-
ized as entitling the applicant for benefits to plenary judicial
review of a decision turning him down.” Id. This plan does
not indicate in a clear way to plan participants that CNA
would review benefits determinations using discretion.
CNA failed to put such language in the policy, and instead
only put such language in documents that were explicitly
not part of the policy or the plan. Therefore, the district
court was correct in determining that de novo review was
the proper standard of review for Mr. Sperandeo’s denial of
benefits.
  We therefore must determine de novo whether CNA’s
decision to deny benefits to Mr. Sperandeo was correct. See
Postma v. Paul Revere Life Ins. Co., 223 F.3d 533, 540 (7th Cir.


5
   The model language proposed by Herzberger to be included
in ERISA plans is: “Benefits under this plan will be paid only
if the plan administrator decides in his discretion that the
applicant is entitled to them.” Herzberger v. Standard Ins. Co., 205
F.3d 327, 331 (7th Cir. 2000).
No. 05-1916                                                13

2000). In our review of CNA’s denial, we shall apply the
definition of disability found in the Certificate: Mr.
Sperandeo must be “continuously unable to perform the
Material and Substantial Duties of [his] Regular Occupa-
tion.” R.14, Ex.A at 13 (emphasis omitted). “Material and
Substantial” is defined as “the necessary functions of [his]
Regular Occupation which cannot be reasonably omitted
or altered.” Id. at 24 (emphasis omitted).


B. Disability Based on Shoulder Injury
  Mr. Sperandeo argues that the district court erred in
granting summary judgment to CNA, thus affirming CNA’s
denial of the benefits he sought due to his shoulder injury.
He contends that the denial of benefits was incorrect
because he met the definition of disability. Specifically,
he claims that the permanent lifting restrictions imposed on
him because of his injury rendered him unable to lift cases
of cigarettes from the floor to the ceiling as required by the
duties of his job.
  Mr. Sperandeo underwent rotator cuff repair surgery
on his left shoulder on August 19, 2001. Dr. Zoellick, who
performed that surgery, stated on July 1, 2002, that Mr.
Sperandeo could return to work with the following “perma-
nent restrictions”: maximum lifting of thirty-five pounds,
maximum overhead lifting of five pounds and overhead
work “as tolerated.” R.14, Ex.B at 47. On October 10, 2002,
Mr. Sperandeo underwent a second reconstructive shoulder
surgery performed by Dr. Visotsky. Medical records from
both Dr. Zoellick and Dr. Visotsky were reviewed by CNA.
Dr. Visotsky placed no permanent restrictions on Mr.
Sperandeo.
14                                                No. 05-1916

  The PDA completed by Lorillard states that a sales
representative must be able to carry a sales bag, weighing
between twelve and twenty pounds, for about twenty yards,
five times a day, and be able to lift it from the floor and to
set it back down. The PDA also states that a sales represen-
tative must carry cases of cigarettes, weighing twenty-one
to thirty-eight pounds, and lift those cases from “[f]loor to
ceiling” five times per day. Id. at 482. Additionally, a sales
representative must lift counter displays, weighing seven to
eleven pounds, from the floor to the counter once per day;
he also must roll a floor display weighing seventy-five
pounds across the floor once per day. Id.
  The PDA also contains a grid that is labeled with four
categories (“not present,” “<33%,” “33-66%,” “> [sic] 100%”)
at the top, and has various activities listed vertically down
the grid, with one of the four percentile boxes selected
for each activity. Id. A number of activities were marked
to be “33-66%,” including: kneeling, crouching, grasping,
reaching below shoulders, reaching above shoulders,
reaching across, twisting of head, operating a motor
vehicle and bending at the waist. Id.
   Mr. Sperandeo notes that the PDA itself states that he will
have to lift cases of cigarettes anywhere from the floor to the
ceiling five times per day, which necessarily will include
lifting the cases above his head if they need to be placed
near the ceiling. These cases of cigarettes, weighing up to
thirty-eight pounds, greatly exceed the overhead lifting
restriction imposed by Dr. Zoellick of five pounds and, on
some occasions, will exceed his overall lifting capacity of
thirty-five pounds. Mr. Sperandeo contends that lifting such
cases is a “material and substantial” duty of his job, Appel-
lant’s Br. at 19, and thus he has met CNA’s definition of
disability because he is unable to complete the task due to
No. 05-1916                                                  15

his restrictions.
   Based on the lifting restrictions placed on Mr. Sperandeo
by Dr. Zoellick, we do not believe that this record supports
summary judgment for CNA. In our view, Mr. Sperandeo
has raised a material issue of fact as to whether the over-
head lifting of cigarette cases is a “material and substantial”
duty of his job. The district court did not discuss how the
overhead lifting restriction would apply to Mr. Sperandeo’s
tasks as a sales representative, even though the PDA states
that Mr. Sperandeo regularly would have to lift cases of
cigarettes as high as the ceiling. On this record, Mr.
Sperandeo has come forward with evidence that he has met
the policy definition of disabled. According to at least one
physician, he has a permanent overhead lifting restriction of
five pounds and, therefore, he “continuously” will be
unable to lift a cigarette case weighing up to thirty-eight
pounds over his head. The PDA completed by Lorillard
itself indicates that such lifting well may be a “material and
substantial” duty; it states that Mr. Sperandeo must lift
cases of cigarettes five times a day and indicates that “lifting
above shoulders” would comprise a significant part of Mr.
Sperandeo’s activities. Therefore, we believe a material issue
of fact remains, rendering summary judgment inappropri-
ate.
  CNA argues that Mr. Sperandeo could alter the required
overhead lifting by taking the cigarette cartons out of the
case and lifting them overhead one by one. Such lifting
would fall within Mr. Sperandeo’s overhead lifting restric-
tion because each cigarette carton weighs only two pounds.
While CNA believes that such alteration is possible, there is
no indication in the record that Lorillard has ever stated that
such alteration would be available. We recognize that in the
box on the PDA that asks “How can this job be modified
16                                              No. 05-1916

and for how long?”, Lorillard simply wrote “[o]n a Case by
Case Basis.” Id. at 481. However, there is no evidence that
Lorillard, or Lorillard’s customers, would allow Mr.
Sperandeo to take cigarette cartons out of the case and lift
them one by one. Therefore, we find that CNA’s proposed
“modification” is not sufficient to resolve the factual issue
regarding the scope of Mr. Sperandeo’s overhead lifting
tasks.
  Therefore, we must reverse the district court’s grant of
summary judgment as to Mr. Sperandeo’s shoulder in-
jury. A material issue of fact remains regarding whether
or not overhead lifting of cigarette cases constitutes a
“material and substantial” duty of Mr. Sperandeo’s employ-
ment with Lorillard.


C. Disability Based on Neurological Condition
  Mr. Sperandeo also claims that the district court erred
in determining that he is not disabled due to a neuro-
logical condition. Mr. Sperandeo points to a number of
medical records that he submitted to CNA; he claims that
these documents support his claim of neurological disabil-
ity.
  Dr. Steven Wolf, a neurologist, examined Mr. Sperandeo
and opined that he was suffering from postconcussion
syndrome. Dr. Glista, a neurologist who treated Mr.
Sperandeo, opined that Mr. Sperandeo suffered a concus-
sion or closed head injury. However, Dr. Glista noted
that Mr. Sperandeo’s MRI did not show the “deep white
matter” that one would see in someone who had sus-
tained “a severe closed head injury.” R.14, Ex.B at 389.
Additionally, neither Dr. Wolf nor Dr. Glista placed perma-
nent limitations on Mr. Sperandeo’s return to work. In fact,
Dr. Glista noted in March 2002 that Mr. Sperandeo’s
No. 05-1916                                                 17

“prolonged symptoms are really a bit out of proportion” to
the head injury that he sustained. Id. at 392. In May 2002, Dr.
Glista stated that he “really was reluctant to put [Mr.
Sperandeo] off work from a neuropsychiatric point of
view,” and that Mr. Sperandeo “must make an attempt
to return to work if they are willing to take him back.” Id. at
395. Dr. Glista further noted that Mr. Sperandeo’s return to
work was “really more of an administrative issue than a
direct medical issue.” Id. In June 2002, Dr. Glista filled out
a CNA form in which he stated that Mr. Sperandeo is “[n]ot
unfit to work from primary neuro indication.” Id. at 474.
  Mr. Sperandeo also relies on medical records from Dr.
Dennis Moore, an otologist-neurologist, and from Dr. Lewis,
an internist. Dr. Moore diagnosed Mr. Sperandeo with “post
traumatic disequilibrium.” Id. at 485. In a June 2002 commu-
nication with CNA, Dr. Moore marked “no” in response to
the question: “Does [Mr. Sperandeo] have mental or ner-
vous limitations?” Id. at 486. He wrote CNA a letter in
September 2002 stating that Mr. Sperandeo was under his
care for “dizziness and disequilibrium” and a “bilateral
inner ear dysfunction.” Id. at 124. Dr. Moore asked CNA to
“take this information into consideration” when determin-
ing whether Mr. Sperandeo should receive benefits under
the CNA policy. Id. However, Dr. Moore dictated no
permanent work restrictions.6
  Dr. Lewis, an internist who had been Mr. Sperandeo’s
physician for eleven years, wrote a letter in which he
expressed the view that “it is not appropriate for [Mr.
Sperandeo] to be working in his current occupation . . . .


6
  However, Dr. Moore did opine that Mr. Sperandeo should
not work until Dr. Moore’s assessment, including testing by
Dr. Hain, was complete. See R.14, Ex.B at 127.
18                                                   No. 05-1916

I feel he is unsafe because of dysequilibrium [sic], shoulder
and back pain.” Id. at 145.
  Some physicians also remarked on Mr. Sperandeo’s lack
of effort during examinations, and his possible exaggeration
of symptoms. For example, Dr. Randolph, a
neuropsychologist who examined Mr. Sperandeo, stated
that Mr. Sperandeo’s “effort was felt to be questionable at
times.” Id. at 441. He noted specific instances of this ques-
tionable effort, including Mr. Sperandeo’s effort on
a memory test during which he “performed at chance levels
on this test, which is extremely easy to complete with a high
degree of accuracy, even for subjects who have sustained
severe traumatic brain injury.” Id. at 442. Dr. Randolph
stated that “[t]his is very clear evidence of an attempt to
feign or exaggerate memory impairment,” and that it calls
into question the other test results. Id. at 442. Dr. Randolph
opined that it is “highly unlikely that there is any significant
underlying cognitive impairment.” Id. at 444.
  Dr. Moore also referred Mr. Sperandeo to Dr. Timothy
Hain, an otoneurologist, for testing. Dr. Hain performed
a number of tests on Mr. Sperandeo and wrote that the
testing “documents severely impaired balance,” and that the
most likely explanation for the test results is “aphysiologic.”
Id. at 161. A CNA nurse reviewing Mr. Sperandeo’s claim
for benefits called the hospital where Dr. Hain’s testing had
been performed and asked a technician what “aphysiologic”
means; the technician explained that an “[a]physiologic
score usually means the patient is exaggerating their
complaints of dizziness and imbalance.” Id. at 170.7


7
  Mr. Sperandeo invites our attention to Hawkins v. First Union
Corp. Long-Term Disability Plan, 326 F.3d 914, 917 (7th Cir. 2003),
                                                    (continued...)
No. 05-1916                                                    19

   Therefore, the vast majority of the medical evidence
evaluated by CNA did not indicate that Mr. Sperandeo
would be unable to “continuously perform the substan-
tial and material duties” of his job. R.14, Ex.B at 13. Drs.
Wolf, Moore, Hain and Randolph each placed no restric-
tions on Mr. Sperandeo’s return to work. Dr. Glista, his
treating neurologist, expressed a desire to get Mr.
Sperandeo to return to work. This evidence is bolstered by
Dr. Hain’s and Dr. Randolph’s view that Mr. Sperandeo


7
  (...continued)
and submits that the treating physician’s diagnosis should be
given more weight than the opinion of the insurance plan’s
medical consultant because the treating physician would have
superior information. Specifically, Mr. Sperandeo argues that
CNA should not have relied on their nurse’s interpretation of
“aphysiologic,” rather than the opinions of his treating physi-
cians, especially Dr. Lewis.
   Mr. Sperandeo’s argument is flawed for a number of reasons.
First, Hawkins was decided prior to the Supreme Court’s decision
in Nord v. Black & Decker Disability Plan, 538 U.S. 822, 825, 831
(2003), in which the Court rejected the notion that plan adminis-
trators are obliged to accord special deference to the opinions of
treating physicians. Moreover, CNA did not deny Mr. Sperandeo
benefits solely on its nurse’s investigation of the meaning of the
word “aphysiologic.” Rather, it reviewed the records of various
specialists who did not place restrictions on Mr. Sperandeo’s
return to work, as well as physicians who believed that Mr.
Sperandeo may have been exaggerating his symptoms. Finally,
even if we were to give some kind of deference to Mr.
Sperandeo’s treating physicians, as Mr. Sperandeo requests, it is
Mr. Sperandeo’s own treating neurologist who opined that Mr.
Sperandeo’s return to work was more of an “administrative
issue” than a medical issue and that Mr. Sperandeo is “[n]ot unfit
to work from primary neuro indication.” R.14, Ex.B at 395, 474.
20                                                  No. 05-1916

may have been exaggerating his symptoms.
  Other evidence supporting the conclusion that Mr.
Sperandeo was not disabled due to his neurological condi-
tion included a behind-the-wheel evaluation of Mr.
Sperandeo on April 24, 2002. The evaluator concluded that
Mr. Sperandeo could return to independent driving with no
identified restrictions. Additionally, Dr. Denise Fiducia, a
psychologist, recommended that Mr. Sperandeo “[c]onsider
a vocational counselor to facilitate a successful transition
back to work.” Id. at 381. She also expressed the view that,
although some of his early symptoms were “most likely
attributable to direct neurological insult,” over time symp-
toms such as Mr. Sperandeo’s “can be maintained or
exacerbated by secondary symptoms such as pain or
emotional distress.”8 Id.
  The only physician who opined that Mr. Sperandeo
could not return to work based on his neurological condi-
tion was Dr. Lewis. However, Dr. Lewis was an internist. By
contrast, the various physicians who did not place restric-
tions on Mr. Sperandeo’s return to work were specialists in
the field of neurology: neurologists, an otoneurologist and
a neuropsychologist.9 Therefore, given the opinions of the


8
  While some of Mr. Sperandeo’s physicians opined that some of
his symptoms may be caused by psychological issues, Mr.
Sperandeo did not submit a claim based on any psychological
impairment.
9
  Mr. Sperandeo also argues that CNA should have referred his
claim to an independent medical expert for review before
denying his claim based on CNA’s “perceived inconsistencies
among the medical reports.” Appellant’s Br. at 22-23. However,
“[i]nsurers remain free (as do judges) to resolve conflicts in the
                                                   (continued...)
No. 05-1916                                                     21

various specialists who examined Mr. Sperandeo, CNA’s
decision to deny benefits on the ground of neurological
impairment was correct.


                          Conclusion
  For the foregoing reasons, the judgment of the district
court is affirmed in part and reversed in part. We remand
for further proceedings consistent with this opinion. The
parties shall bear their own costs on appeal.

                                          AFFIRMED in part;
                             REVERSED and REMANDED in part




9
   (...continued)
medical submissions.” Wallace v. Reliance Standard Life Ins. Co.,
318 F.3d 723, 724 (7th Cir. 2003). Additionally, we have stated
that obtaining an independent medical examination is “an option,
not an obligation,” for plan administrators. Id. In any event, many
of Mr. Sperandeo’s own physicians did not limit his ability to
return to work. See id. (“No case of which we are aware holds
that, when a plan participant’s own doctors opine that he is again
able to work, the insurer . . . must refer the participant to addi-
tional physicians in quest of one who will find a disabling
condition.”).
22                                           No. 05-1916

A true Copy:
       Teste:

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




                USCA-02-C-0072—8-18-06
