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

No. 02-2934
BRUCE A. WALLACE,
                                         Plaintiff-Appellant,
                             v.

RELIANCE STANDARD LIFE INSURANCE CO.,
                                         Defendant-Appellee.
                       ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
        No. 01-C-714-C—Barbara B. Crabb, Chief Judge.
                       ____________
  ARGUED JANUARY 14, 2003—DECIDED FEBRUARY 4, 2003
                    ____________


 Before EASTERBROOK, RIPPLE, and ROVNER, Circuit
Judges.
  EASTERBROOK, Circuit Judge. After his diabetes led
to renal failure, Bruce Wallace left his job as a manufac-
turer’s sales representative and began receiving disabil-
ity benefits under an insurance policy provided as a
fringe benefit, and thus regulated by ERISA (the Employee
Retirement Income Security Act). A successful kidney
transplant ended Wallace’s need for dialysis. When he did
not return to work after recovering from the operation,
Reliance Standard Life Insurance Co., which underwrote
the disability insurance, cut off his benefits. Wallace sued
under §502(a)(1)(B) of ERISA, 29 U.S.C. §1132(a)(1)(B). Be-
2                                               No. 02-2934

cause the policy does not confer interpretive discretion on
Reliance, the district court made an independent decision
about Wallace’s eligibility. See Herzberger v. Standard
Insurance Co., 205 F.3d 327 (7th Cir. 2000). The judge
concluded that ample medical evidence (including state-
ments by physicians releasing Wallace for work) demon-
strates that he is no longer disabled, and she entered
summary judgment for Reliance. Because the district court
made a de novo determination without objection from
Reliance, this appeal is unaffected by the disagreement
between this circuit and the ninth about the consequences
of an insurer’s or sponsor’s financial interest. Compare
Perlman v. Swiss Bank Corp. Comprehensive Disability
Protection Plan, 195 F.3d 975, 980-81 (7th Cir. 1999), with
Nord v. Black & Decker Disability Plan, 296 F.3d 823, 828-
29 (9th Cir. 2002), cert. granted, No. 02-469 (U.S. Jan. 10,
2003).
  Wallace does not challenge the district judge’s assess-
ment of the medical evidence in the record. Instead he
contends that Reliance was obliged to obtain additional
medical evaluations, which would be submitted to an
independent physician for assessment. Nothing in the
policy, the employer’s plan, or the summary plan descrip-
tion, requires Reliance to take such steps. Nonetheless,
Wallace insists, Reliance was acting as his fiduciary, and
as his fiduciary was obliged to seek out additional evi-
dence supporting his claim, even if (especially if) the
medical evidence he submitted was inadequate.
  Yet why is Reliance a fiduciary when implementing
a contract of insurance? It has promised a particular set
of benefits, to be sure, and must act with care in fulfilling
its promises, but it did not undertake to evaluate all
claims with a thumb on the scale in the participant’s fa-
vor. Indeed, a genuine fiduciary would go to bat for Wal-
lace as an advocate; but this is not the role Reliance
undertook to perform. Pegram v. Herdrich, 530 U.S. 211,
No. 02-2934                                              3

222-26, 231 (2000), holds that a health maintenance
organization (another kind of medical insurer) is not
an ERISA fiduciary to the extent that it makes decisions
about the nature of the care required under the contract.
Pre-Pegram opinions that loosely refer to medical insur-
ers as fiduciaries are no longer authoritative (if they
ever were; the passages in the cases to which Wallace
points read like incautious dicta). Asked at oral argu-
ment what provision of ERISA turns an insurer into a
fiduciary, Wallace relied entirely on 29 U.S.C. §1104.
This section, however, specifies the duties of fiduciaries;
it does not tell us who is a fiduciary. The “who” of the
matter depends on 29 U.S.C. §1002(21)(A), which as the
Court remarked in Pegram tells us that managers, ad-
ministrators, and financial advisers of pension and wel-
fare plans are fiduciaries. Pegram concluded that a con-
tract of insurance sold to a plan is not itself “the plan,”
so that the HMO implementing its contract is not a fidu-
ciary. Just so, one would suppose, with a disability-insur-
ance carrier. Cf. Rush Prudential HMO, Inc. v. Moran, 536
U.S. 355 (2002) (state regulation of an HMO providing
benefits to participants in a plan is regulation of insur-
ance, not of the plan).
  Now it is true, as we observed in Hightshue v. AIG Life
Insurance Co., 135 F.3d 1144, 1148 (7th Cir. 1998), that
when an insurer permits an independent medical evalu-
ator to make the coverage decision, it will be hard to
show that the decision was influenced by a conflict of
interest. Contentions that insurers deny claims to save
money, and that judicial review should be more search-
ing as a result even when the plan or policy confers inter-
pretive discretion, are before the Supreme Court in Nord;
no such issue is at stake here, because the district judge
did not defer to Reliance’s decision but made her own.
Hightshue does not hold that an insurer must pay for
independent medical evaluations or accept their conclu-
4                                              No. 02-2934

sions; it gives plans an option, not an obligation. Insurers
remain free (as do judges) to resolve conflicts in the med-
ical submissions. Their obligation is to evaluate claims
competently and dispassionately—and even that duty
plays a limited role when the judge proceeds de novo.
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 or plan administrator must refer the
participant to additional physicians in quest of one who
will find a disabling condition. Adding to the bureaucracy
would augment administrative costs, which in the long
run would reduce the net benefits that employees enjoy
under the plan.
                                                 AFFIRMED
A true Copy:
      Teste:

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




                   USCA-02-C-0072—2-4-03
