Gent v. CUNA Mutual Insurance Society

           United States Court of Appeals
                       For the First Circuit

No. 09-1703

                           BARBARA GENT,

                       Plaintiff, Appellant,

                                 v.

                   CUNA MUTUAL INSURANCE SOCIETY,

                        Defendant, Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. George A. O'Toole, Jr., U.S. District Judge]


                               Before

                       Boudin, Circuit Judge
                    Souter,* Associate Justice,
                    and Howard, Circuit Judge.


     Jonathan M. Feigenbaum with whom Phillips & Angley, was on
brief, for appellant.
     Peter E. Pederson, with whom Daniel K. Ryan, Marissa I.
Delinks and Hinshaw & Culbertson LLP, were on brief, for appellee.



                           July 12, 2010




     *
      The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
          HOWARD, Circuit Judge. This case arose after CUNA Mutual

Insurance Society ("CUNA") stopped paying long-term disability

benefits to the appellant, Barbara Gent.         CUNA ceased its payments

after determining that Gent was subject to the "mental illness

limitation" in its policy.       Under this limitation, an insured who

is disabled due to a mental illness may not receive disability

benefits for more than two years. Gent took several administrative

appeals of CUNA's determination, arguing that her disability was

caused by a physical condition, specifically, Lyme disease.              When

these appeals were unsuccessful, Gent filed this action in federal

district court under ERISA1, claiming that CUNA had unlawfully

terminated   her    benefits.     After    reviewing   the    administrative

record, the district court granted summary judgment to CUNA.                The

court held that the policy's mental illness limitation applied

because Gent had failed to prove that her disability was caused by

Lyme disease.      This appeal ensued.

          Gent's     primary    argument   is   that   the    district   court

erroneously required her to prove that her disability stemmed from

a physical condition.     In her view, the burden was on CUNA to prove

that she was disabled due to a mental illness and thus subject to

the mental illness limitation. We think that, regardless of who

bore the burden, CUNA's evidence is stronger and so affirm.



     1
        Employee Retirement       Income    Security    Act    of   1974,    29
U.S.C. §§ 1101-1461.

                                    -2-
                               I.    Facts

                          A.    The policy

          At all relevant times, Gent was employed by the Westerly

Community Credit Union as the Vice President of Operations.    As a

benefit of her employment, Gent was covered under the Credit

Union's long-term disability insurance plan.      Plan benefits are

paid under a long-term disability insurance policy issued by CUNA.

CUNA also administers this ERISA-governed plan.

          Three aspects of CUNA's policy bear mentioning.    First,

CUNA's policy provides that it will pay an insured monthly benefits

if the insured is "Disabled due to Sickness or Injury."   Under the

terms of the policy, an insured is "totally disabled" if (among

other things) an injury or sickness prevents her from performing

"all of the material and substantial duties of [her] occupation on

a full-time basis because of a disability."        Second, although

CUNA's policy defines sickness as an illness or disease, the policy

also contains a mental illness limitation.   This limitation states

that an insured who is disabled due to a mental illness may receive

a maximum of two years of disability benefits.      Finally, CUNA's

policy requires an insured who is seeking benefits to submit a

proof of claim that must include "the date the disability started;

the cause of disability; and the degree of disability."




                                    -3-
                              B.    The 2000 claim

           In March 2000, work-related stress led Gent to see a

therapist.     During her session with the therapist, Gent expressed

fears that the new president at the Westerly Community Credit Union

was trying to take responsibilities away from her and to "get me

out of there." Shortly thereafter, Gent met with her psychiatrist,

Dr. A.H. Parmentier. She informed Dr. Parmentier that work-related

stress   had   caused   her    to    become   depressed.   In   addition   to

depression, Gent complained of "anxiety, sleep disturbance, poor

energy, difficulty focusing, crying spells, and [the] 'inability to

think clearly.'"    After evaluating Gent, Dr. Parmentier diagnosed

her with recurrent major depression and excused her from work.             In

his evaluation, Dr. Parmentier observed that Gent had a history of

depression.     In 1988 she had been hospitalized for depression

triggered by work-related stress.

           In June 2000, Gent submitted a claim for long-term

benefits under her policy.            Filed along with her claim was a

required attending physician statement.           This statement, completed

by Dr. Parmentier, listed recurrent major depressive disorder as

the diagnosis.     Dr. Parmentier further indicated that Gent had a

"Class 4" mental impairment, which meant that she was "unable to

engage in stress situations or engage in interpersonal relations

(marked limitations)."         No cardiac or physical impairments were

identified by Dr. Parmentier.


                                       -4-
             In August 2000, CUNA approved Gent's claim for disability

benefits.    In the approval letter mailed to Gent, CUNA prominently

excerpted the mental illness limitation.

        C.    The administrative appeals and current lawsuit

             In April 2002, CUNA sent Gent a letter informing her

that, because of the mental illness limitation, her benefits would

end in July 2002.     When CUNA stopped paying benefits in July 2002,

Gent appealed, claiming that the two-year mental-illness cap on

benefits did not apply to her because her disability now stemmed

from a physical condition, specifically Lyme disease. According to

Gent, approximately one year after CUNA started paying her monthly

disability benefits (roughly June 2001) a tick bit her, infecting

her   with    Lyme   disease.    CUNA   asked   Dr.   Scott   Yarosh,   a

psychiatrist, to review Gent's medical records.         After review of

these records, Dr. Yarosh concluded that Gent was "psychiatrically

impaired" and that the "medical records as a whole do not document

specific criteria to suggest that there are other disabling medical

conditions."     CUNA denied Gent's appeal.

             From November 2002 to March 2006, Gent appealed the

adverse benefits determination five more times.         Throughout the

appeals process, both Gent and CUNA supplemented the administrative

record with medical opinions from various doctors.        These doctors

came to divergent conclusions, with some opining that Gent was

disabled by Lyme disease and others that Gent, if disabled, was


                                  -5-
disabled by a depressive disorder.2               CUNA rejected four of these

five appeals, declining to consider her fifth, the sixth overall,

on administrative exhaustion grounds.

               In June 2006, Gent filed this lawsuit in federal district

court.        In due course, both she and CUNA moved for summary

judgment.       As already noted, the district court granted summary

judgment to CUNA, upholding the termination of disability benefits.

                            II.   Standards of Review

               We review a district court's grant of summary judgment de

novo.       Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 516 (1st

Cir. 2005).       When deciding whether a party is entitled to summary

judgment, we typically view the record evidence in the light most

favorable       to    the   non-moving    party,     drawing   all     reasonable

inferences in that party's favor.              Leahy v. Raytheon Co., 315 F.3d

11, 16-17 (1st Cir. 2002).         Our approach is different, however, in

the ERISA benefit–denial context, where the record before us is the

same record that was before the plan administrator.                  Orndorf, 404

F.3d at 517.         In such a case, "summary judgment is simply a vehicle




        2
        A report from one of these experts, Dr. Daniel A.
Kinderlehrer, is the subject of a dispute between the parties. The
report was included with Gent's final administrative appeal, which
CUNA declined to consider. Gent asserts that the district court
erred when it ignored the report.      We assume for the sake of
argument that the court erred and consider the report here.

                                         -6-
for deciding the [benefits] issue" and "the non-moving party is not

entitled to the usual inferences in its favor."               Id.3

             What   level   of   deference     we   must   give   to   the   plan

administrator's benefits determination is a separate issue. Where,

as   here,    the    plan    does    not     give   the    plan   administrator

discretionary authority to determine eligibility for benefits or to

construe the terms of the plan, our review of the administrator's

decision is de novo.        Denmark v. Liberty Life Assur. Co., 566 F.3d

1, 5-6 (1st Cir. 2009).             Under this standard, "[w]e grant no

deference     to    the   administrators'       opinions     or   conclusions."

Richards v. Hewlett-Packard Corp., 592 F.3d 232, 239 (1st Cir.

2010).

                              III.    Discussion

             Gent argues that the district court erred when it saddled

her with the burden of proving that Lyme disease rendered her

disabled under the terms of the policy.4             In her view, the mental

illness limitation operates as would a coverage exclusion under

traditional insurance law principles. Under those principles, once

an insured has met her initial burden of proving that a claim falls


     3
       In Leahy, we explained that, "In an ERISA benefit denial
case, trial is usually not an option: in a very real sense, the
district court sits more as an appellate tribunal than as a trial
court." 315 F.3d at 17-18.
     4
       Gent may have waived this argument, as she raised it for the
first time in her motion to reconsider. See CMM Cable Rep, Inc. v.
Ocean Coast Props., Inc., 97 F.3d 1504, 1526 (1st Cir. 1996). We
overlook any waiver here.

                                       -7-
within the grant of coverage, the burden shifts to the insurer to

show that an exclusion defeats coverage.      See McGee v. Equicor-

Equitable HCA Corp., 953 F.2d 1192, 1205 (10th Cir. 1992) ("It is

a basic rule of insurance law that the insured carries the burden

of showing a covered loss has occurred and the insurer must prove

facts that bring a loss within an exclusionary clause of the

policy."); see also Glista v. Unum Life Ins. Co. of Am., 378 F.3d

113, 131 (1st Cir. 2004); GRE Ins. Group v. Metro. Boston Hous.

P'ship, Inc., 61 F.3d 79, 81 (1st Cir. 1995) (describing how

exclusions operate under Massachusetts law).

          Facially, the limitation might appear to operate much

like an exclusion.   The parties agreed that Gent was disabled and

was entitled to benefits whether the cause was psychological or

physical, and CUNA then tried to cut off those payments by pointing

to a time limit on payments for those disabled by mental illness

rather than by a physical cause.      On the other hand, the policy,

which listed the mental illness limitation under the heading

"Benefits," required that the insured provide proof of "Disability

due to sickness or injury" that includes "the cause of disability."

One could argue that these provisions put the burden on Gent to

establish the physical or organic etiology of her disability in

order for her to be eligible to continue receiving benefits after

two years.




                                -8-
          Be we need not pursue this issue.     At least where, as

here, the burden of proof is the preponderance of the evidence

standard, how the burden is allocated does not much matter unless

one or both parties fail to produce evidence, or the evidence

presented by the two sides is in "perfect equipoise."    LPP Mortg.,

LTD. v. Sugarman, 565 F.3d 28, 33 (1st Cir. 2009).   Both Gent and

CUNA produced copious albeit conflicting evidence, and we do not

think it perfectly balanced.   Our view is that CUNA's evidence is

stronger than Gent's evidence, and thus CUNA would prevail, whether

it bore the burden of proof or not.

          Some background is in order.   Lyme disease is caused by

a specific bacterium, "Borrelia burgdorferi," which normally lives

in mice, squirrels and other small animals.5   It is transmitted to

humans through the bites of particular kinds of ticks.   Typically,

the first sign of infection is a circular rash called an "erythema


     5
       This information is taken primarily from the website of the
Center for Disease Control and Prevention ("CDC"), a U.S. federal
agency under the Department of Health and Human Services. See CDC,
Lyme Disease, http://www.cdc.gov/ ncidod/ dvbid/lyme/index.htm
(last visited June 23, 2010). It is unclear to what extent the
information on the CDC's website is formally part of the record.
Although the district court and the parties have cited to the CDC
website as authoritative, it appears that Dr. Kinderlehrer's report
is the only piece of record evidence that references the CDC
directly. This is unproblematic, as other evidence in the record
conveys most of the information that can be found on the CDC's
website. Nevertheless, to be on the safe side, we take judicial
notice of the relevant facts provided on the website, which are
"not subject to reasonable dispute." Fed. R. Evid. 201(b), (f);
see also Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003)
(taking judicial notice of information from official government
website).

                                -9-
migrans," which appears at the bite site.           This rash can, but need

not, take the form of a bulls-eye.            Along with the rash, some

patients also experience symptoms of "fatigue, chills, fever,

headache, and muscle and joint aches, and swollen lymph nodes." If

not treated, the infection may spread to other parts of the body

and cause the following symptoms: loss of facial muscle tone, neck

stiffness, severe headaches, shooting pains that may interrupt

sleep,    heart     palpitations    and   dizziness.     If    further   left

untreated, the infection will cause approximately sixty percent of

patients to suffer severe joint pain and swelling along with bouts

of arthritis.      Months to years after an untreated infection, five

percent    of     patients   may   also   develop   "chronic    neurological

complaints," including "shooting pains, numbness or tingling in the

hands or feet, and problems with concentration and short term

memory."

            Lyme disease is diagnosed based primarily on clinical

evidence, i.e., "symptoms, objective physical findings (such as

erythema migrans, facial palsy, or arthritis), and a history of

possible exposure to infected ticks."         Further laboratory testing

can be very helpful in diagnosing the disease.            Among the useful

laboratory tests are blood tests which measure the presence of Lyme

antibodies in the patient's blood.          When testing blood for these

antibodies, the CDC recommends that doctors follow a two-step

process.   First, doctors should administer an "ELISA or IFA" test.


                                     -10-
If the ELISA test is positive, doctors should administer a "Western

blot test."   This test will typically be positive only if a patient

has Lyme disease.     According to the CDC, "[i]f the Western blot is

negative, it suggests that the first test was a false positive,

which can occur for several reasons."

            We return the specifics of this case. In June 2001, Gent

reported an insect bite to a primary care physician, Dr. Lori

Drumm.    Gent had large red rings on both arms.6   Dr. Drumm referred

Gent to Dr. Wendy Clough, an infectious disease specialist. During

her appointment, Gent complained of "[s]ignificant fatigue, 10-lb.

weight gain; hearing problems; dry cough, sinus pain, episodes of

chest pain and shortness of breath; [and] palpitations." Gent also

reported experiencing "achy joints over a year ago" and her medical

history    revealed    disrupted   sleep   patterns,   headaches,   and

lightheadedness.      In June 2004, during an appointment with a

different doctor, Gent complained of fatigue, weakness, dizziness,

and "abnormal sensation of the right body."

            From June 2001 to September 2003, Gent underwent a

battery of testing intended to help determine whether she had Lyme

disease.    First, her blood was tested.     Consistent with the two-

step process outlined by the CDC, an ELISA test was conducted in



     6
       It is unclear from the physician notes whether Dr. Drumm
personally observed the large red rings or whether Gent merely
reported the rings to Dr. Drumm. We will assume for the sake of
analysis that Dr. Drumm observed the rings.

                                   -11-
June 2001.            This test was positive, and a few months later a

Western blot test was conducted. The Western blot was negative for

Lyme disease.          Next, in late September 2001, Gent's cerebro-spinal

fluid        ("CSF")    was    tested.     Analysis       of    the    CSF   revealed   no

antibodies associated with the disease.                        Following these tests,

Gent's brain and brain functioning were analyzed for signs of a

Lyme infection.               A December 2002 SPECT scan7 of Gent's brain

disclosed "nonspecific perfusion defects that may be related to

Lyme disease."           Later neuropsychological testing of Gent's brain

functioning yielded inconsistent results.                       For example, testing

conducted in January 2003 revealed deficits in Gent's attention

span         and     rates     of   learning.         Nevertheless,           during    a

neuropsychological examination conducted in September of that year,

Gent        demonstrated      normal   attention,     concentration,          and   mental

stamina and showed "scattered deficits in some areas of higher

cognitive functioning . . . consistent with a functional disorder

rather than with Lyme disease."

                   Doctors    reviewing   this    clinical       and   laboratory    data

arrived at different conclusions.                 Among the doctors in the Lyme

disease camp were Dr. Clough, Dr. Samuel Donta (a professor of

medicine, infectious diseases, and biomolecular medicine at Boston

University School of Medicine), Dr. Robert Porter (board certified



        7
        The acronym stands                for    "brain    single-photon        emission
computed tomograph scan."

                                           -12-
in   occupational   medicine),   and   Dr.   Kinderlehrer   (a    holistic

physician).   Although these doctors relied in part on the positive

ELISA test when reaching their conclusions, they focused primarily

on the clinical symptoms manifested by Gent.       Dr. Clough reasoned

that "[m]ost of [Gent's] symptoms are not found with a patient who

is simply depressed" and that "[m]any of those symptoms . . . are

very typical for Lyme disease."        Similarly, Dr. Donta concluded

that Gent "has severe cognitive problems along with other symptoms

that could fit the picture of Lyme disease."          Dr. Kinderlehrer

echoed these sentiments, observing that Gent "had a tick bite

followed by an erythema migrans rash [and] developed neurological,

cardiac,   and   musculoskeletal   complaints    consistent      with   Lyme

disease . . . ."

           Other doctors, however, concluded that Gent did not have

Lyme disease. These doctors included Dr. Yarosh, Dr. Mark Moyer (a

board certified specialist in internal medicine and infectious

diseases), Dr. Christopher Tolsdorf (a clinical neuropsychologist),

Dr. John Brusch (board certified in infectious diseases and Chief

of Medicine at Youville Hospital in Cambridge, Massachusetts), and

Dr. Jeffrey Greene (a clinical professor of medicine at the New

York University School of Medicine and Chief of the Tisch Hospital

Infectious Disease Section).     These doctors focused largely on the

laboratory data, including the absence of a positive Western blot

test and the fact that Gent's CSF revealed no antibodies associated


                                   -13-
with Lyme.   Both Dr. Brusch and Dr. Greene further concluded that

the   clinical   evidence   also   counseled   against    a   Lyme   disease

diagnosis.   Dr. Greene observed that many of the symptoms Gent

experienced were out of step with the normal progression of Lyme

disease.   He said that, in the normal course, the erythema migrans

surfaces during the early stages of Lyme disease, whereas certain

neurological and joint-related symptoms manifest themselves later.

Dr. Greene then observed that Gent had complained of achy joints

over a year before any rash surfaced.            This clinical course,

according to Dr. Greene, was "very atypical."8           For his part, Dr.

Brusch said that the "clinical picture of her symptoms" reflected

"untreated depression."       In particular, he observed that "the

neuropsychological testing is consistent with depression much more

than with an organic brain syndrome."

           Taking all the evidence into account, we believe CUNA's

arguments that Gent's disability was not caused by Lyme disease to

be the better-supported position.         Although this conclusion is

based on a holistic review of the record evidence, two aspects of

this case are worth highlighting.

           First, while one can reasonably interpret the clinical

and neuropsychological evidence to either support or undermine a

Lyme disease diagnosis (as demonstrated by the opinions of the


      8
       Dr. Greene did not rule out the possibility that Gent had
contracted Lyme disease at some point in her life. Nevertheless,
he said that she did not currently have Lyme disease.

                                   -14-
doctors above), the laboratory data lines up almost uniformly

against such a diagnosis. In particular, the Western blot test was

negative.    Gent's attempts to downplay the significance of the

negative Western blot are not persuasive.        She points out that the

CDC says that where a patient has an erythema migrans, as Gent

claimed to have had9, validated laboratory tests like Western blot

are "not generally recommended."       But the CDC goes on to say that,

even in such cases, "[v]alidated laboratory tests can be very

helpful."    Whether recommended or not, doctors administered the

Western blot test in Gent's case and it was negative.           Gent further

argues that a few doctors, including Dr. Greene, conceded that no

negative    test   could   be   completely   diagnostic    or   definitive.

Although this may be true, the negative Western blot in Gent's case

was corroborated by the analysis of Gent's CSF.           Indeed, the only

laboratory test which was positive for Lyme diseases was the ELISA

test, a test which can produce false positives.10

            Second, Gent's history of depression makes the Lyme

disease diagnosis more susceptible to questioning. Before claiming



     9
       Gent claims that she had erythema migrans on both of her
arms. Yet, according to the information on the CDC website, an
erythema migrans surfaces at the site of the tick bite. Thus, a
tick or ticks would have needed to bite Gent on both arms at
approximately the same time.
     10
       The SPECT scan was inconclusive. Although Dr. Donta said
the scan revealed defects that could be consistent with Lyme
disease, another doctor, Dr. Greene, said the scan revealed "non-
specific" findings.

                                    -15-
disability due to Lyme disease, Gent had filed (and CUNA had

approved) a disability claim based on recurrent major depressive

disorder. Symptoms of this disorder (including fatigue, difficulty

concentrating, and sleep disturbance) overlap with symptoms of Lyme

disease.    Dr. Brusch observed as much in his evaluation of Gent,

explaining that, in his view, Gent was suffering from untreated

depression, not Lyme disease.

            One loose end remains.            Gent argues that the district

court should have granted her summary judgment because the mental

illness limitation in CUNA's policy is ambiguous.                    The policy

defines    mental   illness   as   a    "[m]ental,    nervous   or    emotional

disease[] or disorder[] of any type."                According to Gent, the

mental illness limitation is ambiguous because it is unclear

whether the limitation caps benefits for all illnesses that may

produce psychiatric symptoms, including those illnesses with an

organic or physical origin (e.g., Alzheimer's Disease or brain

cancer).     In support of her argument, Gent notes that other

circuits have concluded that similarly phrased mental illness

limitations are ambiguous.          These circuits have construed the

limitations in favor of the insured and held that the limitations

are inapplicable to illnesses that are physically or organically

based, even if those illnesses happen to produce psychiatric

symptoms.    See Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534,

538 (9th Cir. 1990)("[M]ental illness refers to a behavioral


                                       -16-
disturbance with no demonstrable organic or physical basis . . . .

It stems from reaction to environmental conditions as distinguished

from organic causes.") (citation omitted); see also Billings v.

Unum Life Ins. Co. of Am., 459 F.3d 1088, 1093-94 (11th Cir. 2006);

Patterson v. Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir. 1993);

Phillips v. Lincoln Nat'l Life Ins. Co., 978 F.2d 302, 310-11 (7th

Cir. 1992).

          Even if we were to conclude that the mental illness

limitation is ambiguous and construe it in Gent's favor, the

question of whether Gent's disability had a physical or organic

etiology would still remain.   In our view, the evidence does not

establish her claim that her illness was caused by Lyme disease (or

by additional suspects Meniere's disease and drug toxicity).11

                         IV.   Conclusion

          For the reasons provided, the judgment below is affirmed.




     11
       Gent does not argue that the mental illness limitation is
inapplicable to her depressive disorder.

                               -17-