United States Court of Appeals
For the First Circuit
No. 02-1237
BRADLEY B. BRIGHAM,
Plaintiff, Appellant,
v.
SUN LIFE OF CANADA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lipez, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges.
Cristobal Bonifaz with whom John C. Bonifaz and Law Offices of
Cristobal Bonifaz were on brief for appellant.
Jay P. Symonds with whom Joseph M. Hamilton and Mirick,
O'Connell, DeMallie & Lougee were on brief for appellee.
Mary Ellen Signorille and Melvin R. Radowitz on brief for
amicus curiae AARP.
January 28, 2003
COFFIN, Senior Circuit Judge. Appellant Bradley Brigham
claims that appellee Sun Life of Canada violated the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§
1001-1461, when it terminated his long-term disability benefits.
Brigham had been receiving benefits for five years based on his
inability to perform his regular occupation. After that time
period, benefits were available under his plan only if he was
disabled from performing any occupation for which he was or could
become qualified. Sun Life concluded that he was capable of
sedentary work, and the district court found that the insurer's
determination indisputably was supported by substantial evidence in
the record. Appellant argues on appeal that the court used the
wrong standard and, even under the standard it used, reached the
wrong result. Although our judgment might have differed from Sun
Life's were we deciding on a clean slate, on the record before us
we are constrained to affirm the summary judgment.
I. Background1
Appellant Brigham, a 47-year-old man who has been a paraplegic
since a motorcycle accident when he was 16, was hired in the spring
of 1990 as an employment coordinator for a social services
organization. He served as an advisor on the employment of
1
We have borrowed liberally from the well stated factual
background section of the district court's opinion in this case.
See Brigham v. Sun Life of Canada, 183 F. Supp.2d 428-434 (D. Mass.
2002). As the district court noted, see id. at 428, the facts are
essentially undisputed.
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handicapped individuals, visiting multiple employers every day.
The travel required frequent transfers from his car to his
wheelchair and back, and after two years on the job the repeated
twisting and lifting of his chair led to significant left side and
back pain that his family doctor diagnosed as muscle strain.
The employee benefit plan issued by Sun Life to Brigham's
employer provides for both short-term and two stages of long-term
disability benefits. Long-term benefits are available for the
first sixty months of a totally disabling illness if it prevents
the employee from performing "all of the material duties of his
regular occupation" (emphasis added). After that initial five-year
period, an employee is eligible for benefits only if the disabling
condition prevents him from engaging in "any occupation for which
he is or becomes reasonably qualified by education, training or
experience" (emphasis added).
In June 1993, Brigham developed a respiratory tract infection
that triggered severe coughing spells, exacerbating his left side
pain and forcing him to stop work. He received short-term
disability benefits for six months and then in December 1993
applied for long-term benefits based on his severe back and side
strain. In an Attending Physician's Statement of Disability
("APS") dated December 21,2 Dr. Christopher French opined that
2
The APS is a two-page standardized form provided by the
insurer that includes sections on "Diagnosis," "Dates of
Treatment," "Progress," "Physical Impairment," "Prognosis," and
-3-
Brigham was unable to perform his own job because "the stress of
frequent transfer from [his] car [is an] intolerable physical
symptom." He characterized Brigham's physical impairment as "Class
4" out of five levels of progressively more limited physical
capacity, signifying a "[m]oderate limitation of functional
capacity; capable of clerical/administrative (sedentary) activity."
Although Dr. French stated that Brigham was totally disabled, he
also observed that he was a "good candidate for more sedentary work
but to do this he must get retraining." Brigham graduated from
both Williams and Amherst colleges and holds a master's degree.
In February 1994, Sun Life approved the payment of the first
stage of long-term disability benefits under the "own occupation"
provision. He received those benefits until December 1998, when
the sixty months of coverage ran out, although Sun Life temporarily
cancelled benefits in January 1995 based on its belief that Brigham
could at that point return to his regular job. Brigham appealed,
and after further investigation, Sun Life reinstated the "own
occupation" benefits in March 1995.
During the five years in which Brigham received long-term
disability payments, Dr. French submitted at least six additional
APS reports after the one filed in support of the original
application for benefits. Because this case turns on the
"Rehabilitation." The sections typically offer several alternative
answers, with boxes to be checked for the chosen response. The
form also provides general space for unguided "Remarks."
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sufficiency of the evidence of Brigham's ability to work, we have
closely reviewed the medical information contained in the record.
We summarize below Dr. French's reports during the relevant five-
year period and review other details surrounding Brigham's receipt
of benefits.
– March 1994. In response to a request from Sun Life for
updated information, Dr. French sent a letter dated March 31 that
stated:
[Brigham] is a paraplegic who had developed left side and
hip pain secondary to [the] frequent car to chair
transfer his work requires. These symptoms have improved
following several months of leave from work. I believe,
therefore, that he should avoid situations that require
frequent car to chair transfers.
– July 1994. Sun Life conducted an extensive personal
interview of Brigham, and the notes in the insurer's file state
that he "indicated that he would have resumed another position with
his company if it did not involve being out on the road, but they
had no work for him." The notes also state that Brigham reported
applying to law school and indicated an interest in earning a law
degree so that, among other endeavors, he could represent
individuals with disabilities. He further stated that, if law
school proved too demanding, he would consider earning a teaching
certificate, noting that he previously had worked as a teacher in
a private school.
-5-
– October 1994. The third APS from Dr. French,3 dated October
12, reported that Brigham's condition remained unchanged, but the
physician increased the level of his physical impairment to Class
5, a "[s]evere limitation of functional capacity; incapable of
minimal (sedentary) activity." In the section labeled
"Rehabilitation," however, Dr. French indicated that Brigham could
work despite his impairment if the job did not involve getting into
and out of a car, and he recommended retraining.
– November 1994-March 1995. In a letter dated November 9, Dr.
French stated that Brigham's back pain had subsided since he had
stopped working, and expressed concern that a return to his
previous position – with its frequent travel – would bring it back.
He again recommended that Brigham "be placed in a situation that
does not require getting in and out of the car all day." In a
December conversation with a Sun Life representative, Dr. French
3
Both the district court and Sun Life identify the October
submission as the third APS, although it was at least the fourth
such statement since Brigham stopped work in June 1993. Brigham
had submitted two statements from Dr. French in the summer of 1993
in connection with his request for short-term disability benefits.
It appears that one of those earlier reports is considered the
"first" APS in the sequence discussed by the district court. Our
discussion considers the seven reports that were filed between
December 1993 and December 1998.
We add one further note about these reports. The briefs
reflect confusion about an APS that appears to be stamped as
received in February 1999. The stamped page, however, is actually
the first page of the December 1998 APS, which elsewhere in the
appendix is shown with a date stamp of December 10, 1998. Whatever
the reason for the double-dating, it is clear that the February
document is not a new APS.
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reported that Brigham's condition had improved and his muscle
strain had resolved. A week later, Brigham told another caller
from Sun Life that he hadn't pursued either schooling or
alternative work. According to Sun Life's notes, Brigham explained
that "he has difficulty mobilizing himself and [his] wheelchair for
extended periods during the day." On December 22, Sun Life's
medical consultant, Maureen Speed, a nurse, spoke with Dr. French
to clarify the assessment in the doctor's Nov. 9 letter. Based on
Dr. French's information, including a statement that Brigham's
return to his previous job "might" trigger a recurrence of pain,
Sun Life concluded that he no longer was disabled from performing
his own occupation because "the possibility of a problem recurring
in and of itself does not constitute a disabling condition." In so
informing Dr. French, Sun Life's claims manager also wrote that
"[i]f any condition continues to exist, objective medical
information to support the continued disability is necessary."
As noted above, the company reversed its position and
reinstated Brigham's benefits after it received clarifying letters
from Drs. French and Perri stating that Brigham's pain would "no
doubt" return with repeated transfers into and out of his car. The
insurer previously had confirmed with his employer that Brigham
would have to transfer five to ten times a day if he resumed his
previous job.
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– June 1995. Brigham responded to an inquiry from Sun Life
about the impact of his disability on his daily life by stating
that he is "severely limit[ed] . . . in fundamental ways." He
wrote:
For example, it is very painful for me to transfer from
my wheelchair onto the toilet, into the bathtub, into
bed, and into my car. As a result, I require assistance
to perform all or part of these transfers.
– October 1995. Dr. French submitted a fourth APS that
reported Brigham's condition as unchanged, but he designated
Brigham's physical impairment as both Classes 4 and 5. The doctor
again described Brigham as totally disabled, but noted in the
"Remarks" section that he could re-enter the workforce "with
appropriate part-time job and available transportation."
– January-February 1996. Brigham reported that his daily
activities remained "limited" because of muscle pain and that he
was no longer able to independently transfer into or out of his
current vehicle. Noting that he needed a lift-equipped van "in
order to attempt to either re-enter the work force or acquire
appropriate professional re-training," he proposed that Sun Life
buy out his disability coverage so that he could purchase a van as
soon as possible. Brigham ultimately rejected as inadequate Sun
Life's approximately $52,000 settlement offer.
– November 1996. Dr. French's fifth APS again reported
Brigham's progress as "unchanged," but this time he classified his
physical impairment as Class 4. The doctor stated that a job
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modification would enable Brigham to work "[t]o some extent," and
in the "Remarks" section he wrote: "patient has use of upper body
– transportation to and from a worksite would need to be addressed,
as would assistance with transfers."
– June 1997. Dr. French submitted his sixth APS, in which he
again checked off the boxes indicating that Brigham's condition was
unchanged and that he had a Class 4 impairment. In the impairment
section, he noted that "[t]ransferring is often painful and
therefore difficult and slow. Transportation is prob." The doctor
checked neither "yes" nor "no" in the section that asked if a job
modification would enable Brigham to work with his impairment. He
did, however, check "no" when asked if Brigham was now totally
disabled from "[a]ny other job."
– January 1998. Dr. French's seventh APS repeated the
"unchanged" condition and Class 4 impairment notations. In a
section labeled "Limitations," Dr. French reported that Brigham
could sit 5-10 hours in a normal day, drive 1-3 hours, and use his
hands for grasping and fine manipulating. He also listed Brigham
as able to bend, twist his body, push, pull, grasp and reach
between 1% and 33% of the time during the day, and stated that he
could lift a maximum of ten pounds. Asked on the form whether
Brigham could work within these limitations, Dr. French checked the
box for "part time" and added "possibly." He gave the same
-9-
response to the question whether Brigham could work in another
occupation part time.
That same month, Brigham completed a "Claimant Activity
Questionnaire" in which he explained that large portions of his day
were consumed by eating, resting, and matters of personal hygiene.
He shopped twice a week with others, sometimes made phone calls
related to his volunteer work for a non-profit organization, read
the newspaper and watched television news, and sometimes ran
errands with the help of a neighbor or friend. On weekends, he
more frequently had visitors. He reported that his balance in his
wheelchair was "poor[,] so I can't do much from a sitting
position," and he noted that his back and neck become stiff from
sitting in the wheelchair, requiring a short afternoon nap. He
stated:
I am able to transfer into and out of my car but it takes
a great deal of energy and my joints and muscles usually
ache as a result. If I try to do too much I usually
can't get out of bed easily the following day.
– October-December 1998. On October 27, Sun Life sent Brigham
a letter explaining that his sixty months of "own occupation"
benefits were about to expire and that, to continue receiving long-
term disability payments, he would need to provide evidence of
total disability from any occupation. Dr. French's eighth and
final APS followed. Once again, Dr. French described Brigham's
condition as unchanged and designated his physical impairment as
Class 4. He repeated his earlier assessment regarding Brigham's
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ability to sit and drive, as well as his judgment of Brigham's
ability to twist, push, pull and reach (repeating his earlier
percentage estimates, but increasing Brigham's maximum ability to
grasp objects from 33% of the day to 66% of the day). In the only
other changes from the Limitation section on the January APS, he
omitted any notation on Brigham's ability to bend (one of the
choices was "0%"), and checked neither "yes" nor "no" beside the
entries for his ability to use his hands to grasp or manipulate
with precision. He also left blank the space for Brigham's maximum
lifting capacity.
In the sections on Brigham's work capabilities and prognosis,
Dr. French stated that Brigham was "not at all" capable of working
within the limitations noted on the form, that he was not capable
of another occupation on even a part-time basis, and that he was
"permanently disabled" (emphasis in original).
– January-March 1999. In response to Sun Life's request for
more medical information, Dr. French in January sent copies of his
handwritten notes and other reports from his file. In March, a Sun
Life medical consultant who filled out a Medical Review form
referred to a few items from Dr. French's difficult-to-read
handwritten notes, including his July 1998 statement that Brigham
was swimming every day and a May 1998 statement that Brigham was
"finishing building [a] new house." The consultant noted that Dr.
French in June 1997 reported that Brigham was not totally disabled
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from any occupation but in December 1998 stated that he was
permanently totally disabled. The final notation on the Medical
Review form stated: "appears he's not restricted from sedentary
work."
– June-August 1999. The insurer secured a Transferable Skills
Analysis ("TSA"), which was completed by a vocational counselor
primarily based on Dr. French's reports. The TSA report concluded
that Brigham could perform sedentary work. Under the heading
"Functional Capacities," the report, received on June 15, stated:
He may work five to ten hours a day without limitation on
grasping and fine manipulation, and may drive from one to
three hours daily. He must avoid all squatting,
climbing, balancing, kneeling, and crawling. However, he
may be required to occasionally bend, twist his body,
push, pull, and reach.
The report also noted that Brigham's lifting limitation was ten
pounds. The vocational counselor concluded that these limitations
were "approximately equivalent" to the definition of sedentary work
contained in the Dictionary of Occupational Titles:
Sedentary Work Exerting up to 10 pounds of force
occasionally [up to 1/3 of the time] . . . or a
negligible amount of force frequently . . . to lift,
carry, push, pull, or otherwise move objects, including
the human body. Sedentary work involves sitting most of
the time, but may involve walking or standing for brief
periods of time. Jobs are sedentary if walking and
standing are required only occasionally and all other
sedentary criteria are met.4
4
Although the dictionary definition included the ability to
walk or stand one-third of the time, the skills analysis was
adjusted to account for Brigham's paraplegia. In addition,
although the definition includes the ability to exert a negligible
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The report identified twenty-one jobs for which Brigham was
qualified, at least several of which required no travel other than
to and from the workplace, and involved primarily verbal or
telephone communication and computer skills.
On the day that it received the TSA report, Sun Life sent
Brigham's attorney a letter reporting its conclusion that Brigham
was not totally disabled from any occupation and thus was no longer
eligible for benefits. A series of letters among Sun Life, Dr.
French and Brigham's attorney followed. Dr. French sent a brief
letter contesting Sun Life's conclusion.5 In August, Sun Life's
claims administrator informed the attorney that an appeal required
submission of "objective medical evidence in support of continuing
total disability," explaining that such evidence would include
"medical records, diagnostic test results and hospital records,
which document the presence of a condition to the extent it would
be disabling, from December 18, 1998 to the present." The
amount of force "frequently," the vocational counselor who wrote
the report recognized that Brigham could push, pull, reach and
similarly move only "occasionally" – consistent with Dr. French's
opinion that he could do such movements between 1% and 33% of the
time.
5
To support his view, Dr. French repeated almost verbatim the
observations he had made when Brigham's benefits were temporarily
terminated in early 1995: "Mr. Brigham's muscular-skeletal
condition is fragile, his ability to transfer is severely limited,
and is possible only with assistance and then with discomfort . .
. . Mr. Brigham is in a continuous state of total incapacity to
perform the duties of any assignment given the disabilities
described above."
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administrator also sent a letter to Dr. French, dated August 24,
asking for "any specific measures or any objective test results in
your file that may provide information on the nature of his
condition since June 1992."6 Dr. French subsequently spoke by
phone with the claims administrator and then sent back a copy of
her letter with a handwritten notation at the bottom indicating
that a neurological evaluation would be obtained to answer the
questions raised in the letter.7
– September 1999-January 2000. By the end of the appeal
period, Brigham had submitted the following materials in support of
his claim: (1) Dr. French's June 28th letter disagreeing with Sun
Life's determination that Brigham was not fully disabled; (2) a
letter from the neurologist, Dr. Reinert, dated September 9, 1999,
6
The letter also noted that Brigham had been using a
wheelchair for more than 25 years, that the TSA reported available
job opportunities, and that the doctor's notes indicated that the
year before Brigham had been swimming every day and finishing
building a new house.
7
Appellant asserts that Dr. French's notes reflect the
administrator's commitment to arrange for the evaluation. We think
that, in context, this is an unreasonable reading of the notes.
The notation begins "Discussed with [using a form of shorthand for
"with"], and then a name written on the same line – perhaps "Anita"
– is crossed out. Below it is the name "Alice Kern." On the next
line, the notation reads: "will get Nero Eval and send it to answer
above ?s." We construe this message – sent to Sun Life – to say
that Dr. French had discussed with Alice Kern that he would get a
neurological evaluation and would send it to answer the questions
posed in Sun Life's letter. This understanding of the notation is
reinforced by the fact that such an evaluation was sent to Sun Life
by Brigham's attorney.
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echoing the conclusion that Brigham was totally disabled;8 (3)
affidavits from Brigham's mother, father, aunt (who also was his
personal attendant), and a family friend describing his physical
limitations;9 and (4) an approval notice from the Massachusetts
8
The district court noted that Dr. Reinert, who first treated
Brigham after his 1972 accident, offered his opinion in "almost
entirely conclusory terms":
[Brigham] feels, and rightly so in my opinion, that the
physical problems resulting from those three years of
employment have left him totally disabled insofar as he
can no longer accomplish, on a regular schedule, what he
could previously do. For example, . . . it takes him
much longer to accomplish such things as management of
bladder and bowel function as well as proper skin care
management. At the time that he developed the left flank
pain he also noted pain in his right shoulder area,
making it more difficult for him to frequently lift his
wheelchair into and out of the car. Were he in his early
20's instead of his late 30's at the time that this
happened he may have been able to recover from the
problem that developed in 1992. But with the gradual
decline in physical capabilities which we all experience
as we get older, in Brad's case superimposed on the
significant disability of being paraplegic, he had been
unable to recover to the level of function pre-1992. His
problem is quite self evident and I feel that any
additional studies to further evaluate the problem would
be superfluous and unnecessary.
9
These affidavits included the following comments: "From my
day-to-day observations of Bradley I believe he is totally disabled
in that he cannot perform routine tasks on a regular, consistent
basis without experiencing pain or some level of discomfort . . .
. If he tries to do too much physical activity then he is either in
pain or discomfort several days after." (Lillian Brigham,
appellant's mother); "I would characterize his physical state as
fragile and his muscular condition as tentative and day-to-day. He
seldom has back-to-back days when he is pain-free and able to move
about comfortably. . . . Based upon my daily observations from
helping him for several years I would say that Bradley is fully
disabled and incapable of even part-time employment." (Althea
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Division of Medical Assistance for 20 hours per week of assistance
with daily tasks.
In a letter dated January 28, 2000, Sun Life informed
Brigham's attorney that it was reaffirming its earlier decision to
terminate benefits, stating that "the information submitted did not
provide objective medical support that Mr. Brigham is unable to
perform the duties of any occupation for which he is reasonably
qualified." The letter referred to Dr. French's earlier opinions
that Brigham could perform sedentary work, the notes indicating
that he was swimming every day and building a house, the TSA, and
the Medical Record Review.
Brigham then filed this lawsuit claiming that Sun Life's
denial of benefits violated his rights under ERISA and state law.
See 29 U.S.C. § 1132(a)(1)(B). The district court ruled that the
state law claims were preempted by ERISA. After a thorough review
of the record evidence, the court concluded that the undisputed
facts could not support a rational determination that Sun Life
acted arbitrarily, see Leahy v. Raytheon Co., No. 02-1215, slip op.
at 12 (1st Cir. Dec. 17, 2002), and it therefore entered summary
judgment on behalf of the insurer. This appeal followed.
II. Standard of Review
In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989), the Supreme Court directed that "a denial of benefits
Brigham, aunt and personal attendant).
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challenged under § 1132(a)(1)(B) is to be reviewed under a de novo
standard unless the benefit plan gives the administrator or
fiduciary discretionary authority to determine eligibility for
benefits or to construe the terms of the plan." See also Rush
Prudential HMO, Inc. v. Moran, 122 S. Ct. 2151, 2170 (2002) ("[A]
general or default rule of de novo review could be replaced by
deferential review if the ERISA plan itself provided that the
plan's benefit determinations were matters of high or unfettered
discretion[.]"). We have "steadfastly applied Firestone to mandate
de novo review of benefits determinations unless 'a benefits plan
. . . clearly grant[s] discretionary authority to the
administrator,'" Terry v. Bayer Corp., 145 F.3d 28, 37 (1st Cir.
1998) (quoting Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986
F.2d 580, 583 (1st Cir. 1993)). When the grant of discretionary
authority is found, we apply a deferential arbitrary and capricious
standard of judicial review. Id. (citing Recupero v. New England
Tel. and Tel. Co., 118 F.3d 820, 827 (lst Cir. 1997)).
While the choice of standards is clear-cut, there remains
considerable debate over what language constitutes a sufficiently
clear grant of discretionary authority to transform judicial review
from de novo to deferential. In Herzberger v. Standard Ins. Co.,
205 F.3d 327, 331 (7th Cir. 2000), Chief Judge Posner proposed
model "safe harbor" language for inclusion in ERISA plans that
could leave no doubt about the administrator's discretion:
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"'Benefits under this plan will be paid only if the plan
administrator decides in his discretion that the applicant is
entitled to them.'" We wholly endorse this proposal. We
recognize, however, that "courts have consistently held that there
are no 'magic words' determining the scope of judicial review of
decisions to deny benefits," id., and until wording such as that
suggested by Judge Posner becomes standard, we must in fairness
carefully consider existing language that falls short of that
ideal. Accord Herzberger, 205 F.3d at 331 (declining to make
proposed language mandatory and accepting as sufficient, if
minimum, a less explicit standard, see infra at 19).
According to the Sun Life policy, the insurer "may require
proof in connection with the terms or benefits of [the] Policy."
It further states: "If proof is required, we must be provided with
such evidence satisfactory to us as we may reasonably require under
the circumstances" (emphasis added). Circuits that have considered
similar language view the "to us" after "satisfactory" as an
indicator of subjective, discretionary authority on the part of the
administrator, distinguishing such phrasing from policies that
simply require "satisfactory proof" of disability, without
specifying who must be satisfied. See Nance v. Sun Life Assur. Co.
of Canada, 294 F.3d 1263, 1267-68 (10th Cir. 2002) ("'Satisfactory
to Sun Life' . . . adequately conveys to the Plan participants and
beneficiaries that the evidence of disability must be persuasive to
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Sun Life."); Ferrari v. Teachers Ins. and Annuity Ass'n, 278 F.3d
801, 806 (8th Cir. 2002) (describing plan as stating that "proof
must be satisfactory to [the administrator]"); Herzberger, 205 F.3d
at 331 (describing the "satisfactory to us" language in Donato v.
Metropolitan Life Ins. Co., 19 F.3d 375, 379 (7th Cir. 1994), as
"indicat[ing] with the requisite if minimum clarity that a
discretionary determination is envisaged"); cf. Perugini-Christen
v. Homestead Mortgage Co., 287 F.3d 624, 626-27 (7th Cir. 2002) (no
discretionary review when policy stated applicant must submit
"satisfactory proof of Total Disability to [the insurer]"); Walke
v. Group Long Term Disability Ins., 256 F.3d 835, 839-40 (8th Cir.
2001) (same where benefits would be paid if insured "submits
satisfactory proof of Total Disability to [insurer]"); Kinstler v.
First Reliance Standard Life Ins. Co., 181 F.3d 243, 251-52 (2d
Cir. 1999) (same where policy requires insured to "submit[]
satisfactory proof of Total Disability to us"); Kearney v.
Standard Life Ins. Co., 175 F.3d 1084, 1089-90 (9th Cir. 1999) (en
banc) (same where policy stated that insurer would pay disability
benefits "upon receipt of satisfactory written proof that you have
become DISABLED").
Only the Sixth Circuit, by an 8-6 en banc vote, has held that
discretionary review is triggered by language requiring
"satisfactory proof" without specification of who must be
satisfied. See Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556-58
-19-
(6th Cir. 1998) (en banc).10 And only one circuit, the Second, has
suggested – in dicta – that even "satisfactory to us" language may
be inadequate to convey discretion. See Kinstler, 181 F.3d at 252.
This we view as the present state of the law. We now turn to the
state of the record in this case.
Throughout the proceedings in district court, Brigham assumed
that the arbitrary and capricious standard applied, never arguing,
as he does now,11 that the policy language was insufficiently
explicit to trigger discretionary review. Indeed, on more than one
occasion, appellant's counsel expressly identified the issue in the
case as whether Sun Life's decision was arbitrary and capricious.
In light of the precedent described above, we do not feel compelled
to depart from the well worn principle that "'arguments not
seasonably raised in the district court cannot be raised for the
first time on appeal,'" Nyer v. Winterthur Int'l, 290 F.3d 456, 460
(lst Cir. 2002) (quoting Corrada Betances v. Sea-Land Serv., Inc.,
248 F.3d 40, 44 (lst Cir. 2001)); see also Airport Impact Relief,
Inc. v. Wykle, 192 F.3d 197, 205 n.3 (lst Cir. 1999)("Amici cannot
interject into a case issues which the litigants have chosen to
ignore.").
10
The relevant plan language stated that "[the insurer] shall
have the right to require as part of the proof of claim
satisfactory evidence . . . that [the claimant] has furnished all
required proofs for such benefits."
11
He is joined in this argument on appeal by amicus AARP.
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It may well be that an increasing recognition of the need for
the clearest signals of administrative discretion portends a future
consensus requiring greater precision. But that consensus does not
yet exist. Indeed, with the possible exception of the Second
Circuit in dicta, no federal appeals court has viewed the type of
language at issue in this case as inadequate to confer discretion
on the plan administrator. Were we to consider ruling otherwise,
we would undertake a thorough exploration of the issue. As matters
stand, the widespread acceptance of the view that the language here
triggers discretionary review assures us that adhering to our
raise-or-waive rule results in no injustice in this case.
We therefore move on to consider only whether Sun Life's
decision to terminate Brigham's benefits was arbitrary and
capricious. We must view this question through the summary
judgment lens, leading us to examine specifically "whether the
aggregate evidence, viewed in the light most favorable to the non-
moving party, could support a rational determination that the plan
administrator acted arbitrarily in denying the claim for benefits."
Leahy, slip. op. at 12.
III. The Termination of Benefits
As indicated at the outset of this opinion, we have concluded
that a rational decision-maker could not find, on this record, that
Sun Life lacked a reasonable basis for its determination that
Brigham could return to work in a sedentary position. This
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conclusion is especially clear with respect to part-time work. See
Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (lst Cir.
1998) (capacity to work part-time supports finding that claimant
was not "totally disabled from any occupation"). Although we
confess considerable ambivalence about whether Brigham should be
expected to return to the workforce, we nonetheless believe, for
the reasons that follow, that Sun Life cannot be found to have
violated ERISA for reaching the decision it did. We first consider
the record evidence on which Sun Life relied and then address
several particular challenges to the insurer's decision-making.
A. Evidence in the Record
Unquestionably, the most significant evidence in the record is
the series of Attending Physician Statements from Dr. French. In
each report before the last two, Dr. French opined that Brigham
could return to work part-time, with re-training, so long as his
job did not require transfers into and out of his car. The next-
to-last report, in January 1998, stated that Brigham "possibly"
could resume part-time work. Only in the last report - filed after
Sun Life notified Brigham that he needed to prove inability to work
at any occupation - did Dr. French assert that Brigham was "not at
all" capable of working on even a part-time basis. In that same
APS, however, Dr. French continued to classify Brigham's physical
impairment as Class 4, seemingly indicating his ability to do
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sedentary work.12 The doctor repeated his earlier assessment that
Brigham could sit 5-10 hours and drive 1-3 hours in a normal day
and rated him as capable of a wide range of physical movements at
least a small percentage of the time. Each APS throughout the
five-year period noted that Brigham's condition remained unchanged
from the previous report.
Thus, Dr. French's medical reports did not reflect a decline
in Brigham's physical condition from the time he became disabled in
1993. Despite Sun Life's request for objective medical evidence to
substantiate the doctor's assertion in December 1998 that Brigham
no longer was capable of the sedentary work the doctor earlier had
deemed feasible, no reports of any kind were submitted based on
either recent examinations or clinical tests showing progressive
loss of abilities. Dr. Reinert's assessment adds little; he noted
that "the gradual decline in physical capabilities which we all
experience as we get older, . . . superimposed on the significant
disability of being paraplegic," rendered Brigham unable to recover
to his level of function before the 1992 muscle strain. But Dr.
French's reports consistently had indicated that Brigham retained
at least part-time sedentary employment capabilities after his 1992
injury. And the TSA identified a number of sedentary jobs that
12
Brigham's argument that Dr. French's "Class 4" evaluation
relating to sedentary activity does not signify an ability to do
sedentary work is meritless given the employment context and the
reference in the "Physical Impairment" section of the APS to the
Federal Dictionary of Occupational Titles.
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appeared suitable in that they largely required phone calling or
counseling in a single location.13
To be sure, the record also contained significant evidence of
the daily challenges Brigham faced as a paraplegic with ongoing
issues of muscle strain and pain. The affidavits from family and
friends emphasized the pain that typically accompanied or followed
physical activity, and his own reports described the substantial
effort required to accomplish basic daily tasks. We think it
beyond question that a return to work would add a substantial
burden to Brigham's already difficult life. Yet we cannot say that
the insurer was required to conclude, on the medical evidence
provided, that that burden rendered him totally disabled, i.e.,
physically unable to work on even a part-time basis. Nor do we
think any reasonable factfinder could reach such a result. See
Vlass v. Raytheon Employees Disability Trust, 244 F.3d 27, 30 (lst
13
Among the positions noted were: (1) correctional-treatment
specialist, essentially a counselor within a prison setting whose
primary activity is communication verbally with inmates and others;
(2) vocational rehabilitation counselor, in which the primary
activities are "verbal interaction with the clients, some computer
interface, and telephone contact with clients and others"; and (3)
program specialist within an employee assistance program, whose job
is to
coordinate the delivery of services to covered employees,
receiving calls from the employees and connecting them
with appropriate community services. [Program
specialists] then oversee the delivery of services within
the parameters of the coverage. The work is entirely
sedentary and requires virtually no travel, since most is
performed by phone and on computer within a stationary
office.
-24-
Cir. 2001) ("[T]he existence of contradictory evidence does not, in
itself, make the administrator's decision arbitrary."); Sullivan v.
Raytheon Co., 262 F.3d 41, 52 n.8 (lst Cir. 2001) (same). The
insurer's decision to look beyond the subjective conclusions of
family and others close to him - and beyond his doctors'
unelaborated conclusions – to the specific abilities listed on Dr.
French's medical forms was not inevitable, but neither was it
arbitrary. That the TSA report offered a number of employment
possibilities for an individual with those abilities underscores
the reasonableness of Sun Life's decision.
Brigham argues, however, that Sun Life's decision was flawed
because it was improper for the insurer to rely on the absence of
"objective medical evidence" and because the insurer failed to
obtain an independent medical evaluation to counter Dr. French's
conclusion of total disability. We turn now to those issues.
B. Objective Medical Evidence
In rejecting Brigham's appeal of its benefits termination
decision, Sun Life pointed to the lack of "objective medical
support" for the assertion that he is totally disabled from any
occupation. Brigham makes a multi-pronged attack on the insurer's
reliance on the absence of "objective medical evidence," arguing
that the request for such evidence was unnecessary – as Dr. Reinert
had opined – in light of his obvious infirmity, and improper
-25-
because objective medical evidence was not expressly required by
his employee benefit plan. These arguments are unavailing.
We respond to the first argument addressed to the necessity of
additional "objective medical evidence" by stressing the
particularistic state of this record. In passing, we would note
that cases such as these are by nature very fact-oriented. We fully
recognize that laboratory tests or similar diagnostic procedures
will not always be necessary to substantiate a claim of disability,
as certain disabling conditions are not susceptible to such
objective evaluations. See, e.g., Mitchell v. Eastman Kodak Co.,
113 F.3d 433, 443 (3d Cir. 1997)("It is now widely recognized in
the medical and legal communities that 'there is no "dipstick"
laboratory test for chronic fatigue syndrome.'").
Here, however, Dr. French's opinion in the final APS that
Brigham was totally disabled for any occupation contradicted his
earlier reports, and there was no explanation for his new view,
such as evidence of specific physical changes that further limited
Brigham's capacity to work. Indeed, Dr. French repeatedly
described Brigham's condition as "unchanged." The insurer was
therefore justified in seeking some clinical explanation for the
doctor's changed perception. Had Brigham's doctors been
responsive, for example, to the claims administrator's request of
August 24, 1999, to come forward with "any specific measures" and
submitted a report of a recent physical examination that revealed
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weakening muscle strength, decreasing stamina or other visible
indicators of deterioration, Sun Life could not reasonably have
relied on earlier medical reports stating that he retained the
capacity to perform sedentary work. As claimant, Brigham needed to
demonstrate his entitlement to benefits, and he therefore had the
burden of substantiating the doctors' new diagnosis that he was
incapable of performing fully sedentary work.
Brigham's argument (joined by amici) that the request for
"objective medical evidence" imposed an impermissible extra-
contractual eligibility criterion was not raised below and is
therefore waived. In the district court, Brigham did not contend
that Sun Life's request for objective medical evidence was
impermissible because it was extra-contractual, but argued instead
that he had provided sufficient evidence in support of his claim.
In any event, as our prior discussion indicates, the specific
record in this case demonstrates that Sun Life was not rejecting
Brigham's claim because of failure to satisfy a predetermined
prerequisite to eligibility, but was responding to a late-
developing and unexplained change of position on the part of
Brigham's doctor by seeking non-conclusory medical support for the
onset of total disability.
Brigham also accuses Sun Life of changing the evidentiary
standard for medical evidence because the same information that he
submitted in 1999 had been sufficient when it was submitted in 1995
-27-
to prompt reinstatement of his benefits. For two reasons, however,
the "inconsistency" does not assist his position. First, the issue
had changed from Brigham's ability to do his own job – with the
travel requirements – to whether he could do any job. Second, the
medical information provided in 1995 – that the muscle strain
inevitably would resume with frequent transfers into and out of the
car – was linked with information from his employer that multiple
transfers would be required. The same medical evidence did not
explain why, in 1999, Brigham could not do a job that had no travel
requirements. Thus, the record shows that Sun Life did not
arbitrarily demand "objective medical evidence" on either occasion,
but sought evidence in addition to his doctor's inconsistent or
unexplained conclusions. The request for more information was
particularly reasonable in 1999 in light of the doctor's prior
contrary assessments of his part-time work abilities.
C. Independent Medical Review
Brigham also suggests that it was improper for Sun Life to
reject his own doctors' conclusions without obtaining an
independent medical evaluation. Sun Life, however, accepted the
limitations identified by Dr. French and adopted Dr. French's
earlier judgment that those limitations did not prevent Brigham
from all types of work. As Sun Life did not disagree with the
claimant's proffered diagnosis, it had no obligation to obtain its
own medical evidence. Cf. House v. Paul Revere Life Ins. Co., 241
-28-
F.3d 1045, 1048 (8th Cir. 2001) (insurer that possessed "not even
a scintilla of [contrary] evidence" not entitled to discount
claimant's doctor's extensive evidence of severe heart disease
without conducting independent medical examination). Although the
final medical consultant's report was brief, it reflected a review
of the materials submitted by Brigham, particularly Dr. French's
most recent physician statements. Further medical information
would have been illuminating, but it was up to Brigham to explain
why Dr. French's quantitative assessments of his physical abilities
were no longer an accurate indicator of his ability to work.
IV. Conclusion
The question we face in this appeal is "not which side we
believe is right, but whether [the insurer] had substantial
evidentiary grounds for a reasonable decision in its favor."
Doyle, 144 F.3d at 184. We share the district court's sentiment
that this is a difficult case because of "the obvious courage
plaintiff has shown in facing his disability," 183 F. Supp.2d at
438.
Beyond this, it seems counterintuitive that a paraplegic
suffering serious muscle strain and pain, severely limited in his
bodily functions, would not be deemed totally disabled. Moreover,
it seems clear that Sun Life has taken a minimalist view of the
record. But it is equally true that the hurdle plaintiff had to
surmount, establishing his inability to perform any occupation for
-29-
which he could be trained, was a high one. As to that issue, we
have to agree with the district court that the undisputed facts of
record do not permit us to find that Sun Life acted in an arbitrary
or capricious manner in terminating appellant Brigham's benefits.
Affirmed.
Concurrence and dissent follows.
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STAHL, Senior Circuit Judge, concurring in part and
dissenting in part. I concur in Judge Coffin's opinion that the
standard of review in this matter is arbitrary and capricious.
Given the facts of this case, however, I have difficulty concluding
that Sun Life's actions were not arbitrary and capricious. While
the evidence as to the permanence of Brigham's disability is not
without some question, there was significant and unrebutted
evidence that in his current condition he was unable to work
consistently. Cf. Williams v. Int'l Paper Co., 227 F.3d 706, 712
(6th Cir. 2000) (court held that plan administrator acted
arbitrarily and capriciously when it failed to consider relevant
evidence of claimant's physical condition). Brigham's life was not
that of a malingerer. Affidavits submitted by members of Brigham's
family indicated that if he engaged in much activity on one day, he
would be in pain or discomfort on subsequent days, making it
difficult for him to leave his bed. In short, Brigham hardly seems
to be a person capable of sustaining regular employment. Moreover,
the Social Security Administration, presumably using the same
information, found that Brigham was disabled. See Mitchell v.
Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997) (in concluding
that plan administrator's denial of benefits was arbitrary and
capricious, court noted Social Security Administration's
determination that claimant could not work). One would think that
this finding, coupled with the affidavits from Brigham's family and
-31-
the reports from his doctor that he was totally disabled, would
have prompted Sun Life to seek an independent examination of
Brigham's condition before making the final decision to deny his
benefit. Since the standard set forth in the policy --
"satisfactory to us" -- leaves the question of the degree of
evidence solely up to Sun Life, I believe its decision to deny
benefits in this case was arbitrary and capricious.
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