                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2616

P AUL M. K ROLNIK,
                                              Plaintiff-Appellant,
                               v.

T HE P RUDENTIAL INSURANCE C OMPANY OF A MERICA,

                                             Defendant-Appellee.


           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
           No. 07-C-64—Rudolph T. Randa, Chief Judge.



       A RGUED A PRIL 8, 2009—D ECIDED JUNE 29, 2009




 Before EASTERBROOK, Chief Judge, and                KANNE and
WILLIAMS, Circuit Judges.
  E ASTERBROOK, Chief Judge. Paul Krolnik enjoys disability
insurance as a fringe benefit of his job. He stopped
working in June 2002 because of a hernia and back pain.
The hernia was repaired surgically, but Krolnik did not
return to work. After a psychiatrist diagnosed Krolnik
with dysthymia and major depression, Prudential started
sending him long-term disability payments. But “long-
2                                                No. 08-2616

term” means two years, the Plan’s limit when inability
to work is caused even in part by a mental illness
(which the policy defines to include depression). At the
end of January 2005 Prudential ended the disability
benefits, citing the two-year cap. After exhausting his
administrative remedies, Krolnik filed this suit under
the Employee Retirement Income Security Act (ERISA).
  Unless a welfare-benefit plan confers interpretive or
operational discretion on its administrator or insurer, the
judiciary makes an independent decision about benefits.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989);
see also Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct.
2343 (2008). The parties agree that this employer’s Plan
is subject to that standard, and we will not look behind
that agreement. (No matter what the Plan’s language
may be, people are free to accept the Firestone standard,
which is ERISA’s norm.) So the district judge had to
make an independent decision—and appellate review of
any finding of fact is for clear error. Fed. R. Civ. P. 52(a).
But the district court did not hold a trial or make any
findings, and therein lies a problem.
  Krolnik proposed to take discovery in order to generate
evidence about his medical and mental conditions, and
the extent (if any) to which his mental condition affects
his ability to work. Prudential opposed all discovery,
contending that the suit should be resolved on the adminis-
trative record. Citing a decision that discovery may be
limited to what is necessary for an informed judicial
decision, see Patton v. MFS/Sun Life Financial Distributors,
Inc., 480 F.3d 478, 490 (7th Cir. 2007), the district court
No. 08-2616                                              3

concluded that no discovery at all is appropriate,
because the costs of conducting depositions of multiple
physicians exceed the benefits. The judge therefore
barred all discovery on medical questions. 2007 U.S. Dist.
L EXIS 96847 (E.D. Wis. Nov. 15, 2007). Krolnik then asked
some physicians to provide affidavits describing his
condition and prognosis, and he tendered these to the
judge—who struck them from the record, writing:
   The submission of materials outside of the admin-
   istrative record contradicts the scope and intent
   of the Court’s protective order. While that order
   was directed towards future discovery, Krolnik
   cannot circumvent the force of the protective
   order by surreptitiously filing information outside
   of the administrative record in support of his
   motion papers.
2008 U.S. Dist. L EXIS 43024 at *9 (May 30, 2008). Having
barred Krolnik from offering any evidence, the judge
then granted summary judgment to Prudential, relying
on the two-year cap and the fact that the administrative
record contains two medical evaluations implying that
Krolnik is able to work. The judge did not mention
the contrary evidence in the administrative record.
   Firestone holds that “de novo review” is the norm in
litigation under ERISA. Cases such as this show that
“de novo review” is a misleading phrase. The law Latin
could be replaced by an English word, such as “independ-
ent.” And the word “review” simply has to go. For what
Firestone requires is not “review” of any kind; it is an
independent decision rather than “review” that Firestone
4                                                No. 08-2616

contemplates. The Court repeatedly wrote that litigation
under ERISA by plan participants seeking benefits
should be conducted just like contract litigation, for the
plan and any insurance policy are contracts. 489 U.S. at
112–13. In a contract suit the judge does not “review”
either party’s decision. Instead the court takes evidence
(if there is a dispute about a material fact) and makes
an independent decision about how the language of the
contract applies to those facts.
  That’s well understood in insurance litigation under
the diversity jurisdiction. If the plaintiff says that a fire
at his home destroyed a valuable painting, and the
insurer declines indemnity after finding that (a) there
was no such painting, and (b) the fire was caused by
arson, the federal judge won’t ask what evidence the
insurer considered. The court will decide for itself where
the truth lies. A judge would not dream of forbidding
the parties to take discovery, let alone of rejecting
affidavits that did not depend on discovery. Evidence
is essential if the court is to fulfill its fact-finding func-
tion. Just so in ERISA litigation. When review is deferen-
tial—when the plan’s decision must be sustained unless
arbitrary and capricious—then review is limited to the
administrative record. See Perlman v. Swiss Bank Corp., 195
F.3d 975 (7th Cir. 1999). Otherwise, however, the court
decides on the record made in the litigation. And, if
material evidence conflicts, then there must be a trial.
  Medical evidence presented to the plan or its insurer
may be placed in the judicial record, and when this evi-
dence is ample it may in principle constitute the whole
No. 08-2616                                              5

record. See Patton and Casey v. Uddeholm Corp., 32 F.3d
1094 (7th Cir. 1994). Discovery may be curtailed to the
extent that the Rules of Civil Procedure allow. “The court
may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or
undue burden or expense”. Fed. R. Civ. P. 26(c)(1). If the
administrative record contains comprehensive medical
evidence, then duplicative discovery may be limited to
avoid “undue burden or expense”. But we cannot
imagine any justification for refusing to admit evidence
that one party has procured at its own expense, such as
the medical affidavits that Krolnik tendered. Tellingly,
the district judge did not cite authority for throwing out
the affidavits, and Prudential’s brief does not supply any.
  Nor did the judge explain why summary judgment is
apt. The court needs to know whether depression ever
disabled Krolnik. If the answer is no—either because his
mental condition never was disabling, or because his
physical impairments disabled him independent of his
mental state—then the Plan’s two-year bar does not
apply. If the answer is yes, and Krolnik’s mental condi-
tion played a causal role in his past inability to work, it
remains essential to know whether it remains important.
  A reasonable trier of fact might conclude that, even if
depression was a contributing cause of Krolnik’s past
inability to work, any current inability to work has a
physical rather than a mental cause. The policy does not
say that, if two years of benefits have been provided on
account of a mental condition, then no future benefits
may be paid for a physical impairment: it says only that
6                                               No. 08-2616

two years is the maximum period of benefits that may be
justified, in whole or in part, by a mental condition. If
Krolnik’s limitations today are entirely physical (or if
physical problems disable him no matter what his
mental state), then benefits are available under this policy.
  Then there is a dispute about whether Krolnik can work
even with all of his physical and mental problems. Some
physicians say yes, others no. If judicial review were
deferential, then Prudential’s decision would be
sustained easily. But the court must make an independent
decision. To do this, the finder of fact must weigh all of
the medical evidence. Yet the district judge did not men-
tion any of the evidence favoring Krolnik (including
the affidavits that should have been accepted). If a
paper record contains a material dispute, a trial is essen-
tial. And at trial Krolnik would be free to offer medical
evidence of his own and cross-examine the physicians who
produced the reports that underlie Prudential’s decision.
See Richardson v. Perales, 402 U.S. 389 (1971) (even when
written medical reports are used as the principal evidence
in a disability-benefits proceeding, the adverse party is
entitled to cross-examine the physicians who prepared the
reports).
  All in all, it would be best for judges and lawyers to
stop thinking about “de novo review”—with the implica-
tion that the judge is “reviewing” someone else’s ac-
tion—and start thinking about independent decision,
which is what Firestone requires.
  Krolnik argues that he is entitled to prevail without a
remand because Prudential helped him apply for
No. 08-2616                                              7

disability benefits under the Social Security program. (The
SSA granted his application.) Prudential therefore is
estopped to deny that he is disabled, Krolnik maintains.
That argument ignores Cleveland v. Policy Management
Systems Corp., 526 U.S. 795 (1999), which holds that a
finding of disability under the Social Security program
need not imply disability for any other purpose. The
Social Security Administration uses shortcuts, such as
listed impairments and an age/education grid, designed
to manage a high-volume program. Major depression is
a listed impairment under the Social Security program,
which does not impose any time limit on benefits when
the disability is caused by a mental illness. The ERISA
Plan that covers Krolnik has its own terms, and
Prudential did not surrender the ability to enforce them
by helping Krolnik obtain all benefits available from
the federal government. The district judge should
compare the Social Security rules with the Plan’s terms, to
ascertain whether the award of Social Security benefits
is informative, see Diaz v. Prudential Insurance Co., 499
F.3d 640, 644–45 (7th Cir. 2007), but this differs from
estoppel.
  The judgment of the district court is affirmed to the
extent it holds that Prudential is subrogated to $35,850
of the Social Security benefits, which Krolnik must pay
over to Prudential. The judgment otherwise is vacated,
and the case is remanded for proceedings consistent with
this opinion.

                          6-29-09
