Richards v. Hewlett-Packard Corp.

United States Court of Appeals
For the First Circuit

No. 08-2538

EDWARD F. RICHARDS,

Plaintiff, Appellant,

v.

HEWLETT-PACKARD CORPORATION, formerly COMPAQ, formerly
DIGITAL EQUIPMENT CORP.; INTERNAL DISABILITY MANAGEMENT,
GI, LONG-TERM DISABILITY PLAN; and THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA a/k/a PRUDENTIAL FINANCIAL,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel G. Gorton, U.S. District Judge]

Before

Lipez, Stahl and Howard,
Circuit Judges.

Bernard A. Kansky, with whom Kansky & Associates was on brief,
for appellant.
Edward P. O'Leary, with whom Fitzhugh & Mariani LLP was on
brief, for appellees.

January 19, 2010
 HOWARD, Circuit Judge. In this ERISA1 matter, Edward

Richards appeals from an adverse summary judgment ruling which

upheld the termination of his long-term disability benefits by

Prudential Insurance Co. of America ("Prudential").2 We affirm.

I. BACKGROUND

A. The Policy

From May 1984 until January 1991, Richards was employed

by Digital Equipment Corporation ("DEC") as a software engineer.3

As a benefit of his employment with DEC, Richards was offered

insurance coverage under the DEC Long-Term Disability Plan ("the

Plan"). Pursuant to the Plan, Prudential managed and administered

disability claims filed by DEC employees. The Plan is governed by

ERISA.

To be eligible for long-term disability benefits under

the Plan, a claimant must have suffered a sickness or accidental

injury rendering him unable "to perform, for wage or profit, the

material and substantial duties of his occupation." After twenty-

1
Employee Retirement Income Security Act of 1974, 29 U.S.C.§
1001 et seq.
2
There were several named defendants, including Richards'
former employer and an individual employee of Prudential. The
individual defendant is no longer a party. We refer to the
remaining defendants/appellees collectively as "Prudential," both
for convenience and because the insurer is the real party in
interest in this litigation.
3
Digital was subsequently acquired by appellee Hewlett-
Packard.

-2-
four months, eligibility hinges on whether the claimant is "able to

perform for wage or profit the material and substantial duties of

any job" for which the claimant is reasonably fit by education,

training or experience (emphasis added).

B. Richards' claim, termination and internal appeals

Richards applied for long-term benefits in May 1991, at

the age of thirty-nine. He cited chronic fatigue immune

dysfunction and fibromyalgia as the causes of his disability, which

left him unable to work after January 15, 1991. Prudential

accepted Richards' claim in October 1991 and commenced paying

benefits retroactive to July 1991. In 1992 Richards was awarded

Social Security disability benefits.

Since the Plan required proof of ongoing disability as a

condition to continued receipt of benefits, Prudential regularly

required Richards to provide a statement of his current condition

and releases enabling Prudential to obtain his medical records.

Although Richards occasionally balked -- at least once referring to

the requests as "harassment" -- he uniformly complied with

Prudential's requests, and his benefits continued apace.

In January 2001, Prudential, using releases provided by

Richards a month earlier, requested medical records from three

treating physicians Richards had previously identified in his

periodic submissions to Prudential. The records request covered

the period from January 1999 forward. On February 5, 2001, one of

-3-
the physicians, Dr. Carol Englender, reported that she had not seen

Richards in her office since prior to January 1999. A few weeks

later, in response to Dr. Englender's information, and consistent

with plans to review Richards' claim developed in March 2000,

Prudential sought an independent review of Richards' claim from Dr.

Gwen Brachman, whose practice included internal medicine,

rheumatology and occupational medicine. After reviewing Richards'

medical history, Dr. Brachman submitted a report to Prudential,

concluding that although Richards qualified for a diagnosis of

fibromyalgia, he was not physically impaired from performing the

essential functions of a sedentary job. Relying on Dr. Brachman's

report, Prudential informed Richards on March 26, 2001 that he was

no longer eligible for long-term disability benefits and that

payments would cease as of June 1, 2001.

The letter terminating Richards' benefits also contained

information about the appeals process, as did a follow-up letter

sent approximately one month later. Over the next three years,

Richards contacted Prudential on numerous occasions. Many of the

calls were requests for details on the appeals process. Others

were direct requests to immediately reinstate his benefits while he

prepared his appeal. Still other calls contained accusations by

Richards of Prudential's professional malfeasance and threats to

bring Prudential's alleged misconduct to the attention of entities

ranging from the federal government to television exposé programs.

-4-
 On July 26, 2004, Richards submitted a formal written

appeal of Prudential's March 2001 decision. He set forth three

arguments for reinstatement of his benefits: first, that Dr.

Brachman was not only unqualified to review his disability, but

that she also used improper evaluation techniques and made false

statements in her review; second, that Prudential should have

deferred to the opinions of Richards' treating doctors; and third,

that Prudential should have given deference to the 1992 decision of

the administrative law judge who awarded Richards Social Security

disability benefits. Prudential denied the appeal by letter dated

September 28, 2004.

Responding to Richards' specific complaints, Prudential

noted that Dr. Brachman specialized in occupational medicine and

rheumatology, and was thus qualified to review Richards' medical

records, his diagnoses of fibromyalgia and chronic fatigue, and to

offer an opinion on his ability to work. Prudential further noted

that it did take the Social Security determination into

consideration, but that Prudential's determinations are independent

from the agency's. Prudential also indicated that it had reviewed

Richards' records before making its original determination in 2001,

and since three years had passed, it also considered additional

records that Richards had provided since the decision. Finally,

Prudential buttressed its decision by pointing to a transferable

skills analysis that concluded that Richards could perform a number

-5-
of sedentary occupations which fit within his education, training

or experience.

In response to the September 28, 2004 letter, Richards

submitted a letter and additional records from one of his treating

physicians, Dr. Mark Hryniewich, and requested that Prudential

again review its decision. On February 8, 2005, following review

of the additional materials, Prudential again informed Richards

that its original decision was correct.

The February 2005 letter also instructed Richards about

his rights to pursue further appeals. Richards availed himself of

this opportunity by submitting his second written appeal in August

2005. This appeal set forth three chief claims. First, Richards

accused Prudential of ignoring Dr. Hryniewich's opinion that

Richards' fibromyalgia had left him chronically disabled. Richards

also protested the fact that Prudential did not contact Dr.

Hryniewich personally. Finally, Richards claimed that Prudential's

benefit termination notification was legally deficient because it

lacked detailed instructions on how to appeal and explicit

instructions about the particular information Richards would need

to supply to get his benefits reinstated.

In response, Prudential conducted another review, and

again affirmed the decision to terminate Richards' benefits.

Relying on a medical record review performed by its Medical

Director, Dr. Richard Day, Prudential reiterated its finding that

-6-
Richards could perform the duties of a sedentary job for which he

was qualified. The denial letter also noted that previous

neurological assessments Richards had undergone were "completely

normal, as were laboratory findings, and there were no

rheumatological laboratory or physical findings consistent with

synovitis or an inflammatory process."4 Additionally, Prudential

informed Richards of Dr. Day's opinion that any treatment he was

receiving for chronic fatigue syndrome was incomplete, given the

lack of cognitive behavioral therapy.5 In connection with Dr.

Day's report, Prudential also referred back to the transferable

skills analysis performed the previous year, which identified a

number of sedentary positions suitable for Richards, given what

Prudential contended was his residual functioning capacity.

Richards, this time through counsel, availed himself of

Prudential's final level of appeal on January 30, 2006. In

addition to repeating the claim that Richards was in fact totally

disabled from performing any occupation, the appeal alleged that

4
"Synovitis" is inflammation of fluid membranes in certain of
the body's joint cavities and tendon sheaths. Stedman's Medical
Dictionary 1773 (27th ed. 2000).
5
Dr. Day also referred to a note from a Dr. O'Leary, which
strongly opposed Richards' claim of disability. However, Dr. Day
incorrectly referred to O'Leary's note as being dated April 2001,
when the record reflects an actual date of April 1991. While this
discrepancy might weaken somewhat the foundation of Dr. Day's
opinion, it does not significantly undercut it. We address later
the relevance of Dr. O'Leary's report within the overall context of
the administrative record.

-7-
the previous rejection -- the September 29, 2005 decision -- "did

not set forth with the required specificity" the reasons that

Richards' benefits were discontinued. Also, Richards took issue

with Dr. Day's reference to cognitive behavior therapy, likening it

to "years ago, [when] epileptics were locked away in institutions

for the mentally insane." Finally, Richards' attorney asked to

meet with Prudential's appeals committee prior to its decision.

Although the substantive decision on Richards' last

appeal was still months away, Prudential responded quickly to his

attorney's missive. In a letter dated February 6, 2006, Prudential

expressed its view that its various benefit termination letters

adequately detailed the reasons for its decisions. Specifically,

Prudential noted that its letters cited policy provisions, medical

reviews and vocational assessments. Additionally, Prudential

rejected Richards' demand that it contact his physicians, as it was

not contractually obligated to do so and because it was unnecessary

given the information already in his medical file. Further,

Prudential rejected Richards' attorney's request to appear before

the appeals committee, as that committee "doesn't 'meet' with

claimants or their representatives; rather the panel provides a

third and voluntary level of appeal review."

Prudential originally set an April 1, 2006 deadline for

Richards to submit materials in support of his final appeal. Due

to various communication breakdowns regarding deadlines, Prudential

-8-
extended the deadline to June 2006. Richards used the additional

time to supplement the record.6 In a letter dated June 5, 2006,

one day before the deadline, Richards' attorney submitted a report

from Dr. Hryniewich, dated the same day, in which he opined that

Richards "has been totally and permanently disabled from engaging

in and maintaining any gainful employment activity since 1991, up

to and including the present, and further, it is likely that his

total and permanent disability will continue for the foreseeable

future." Dr. Hryniewich noted that Richards "tested positive for

fibromyalgia," and that while symptoms could be treated with pain

medication, side effects made his return to gainful employment

impossible.7

During the pendency of Richards' final appeal,

Prudential sought additional medical record reviews from two

rheumatologists. One of these reviews, from Dr. Paul Howard, took

place after receipt of Dr. Hryniewich's June 5 report. On July 18,

2006, Prudential informed Richards' attorney of its determination

6
The record also reflects that communication between Richards
and Prudential had become further strained; phone logs contain
notations of accusations by Richards during frequent phone calls,
to which Prudential responded by communicating with him only in
writing.
7
The letter from Dr. Hryniewich was the only new medical
evidence submitted to Prudential. Several other letters were
little more than attacks on Prudential and its medical reviewers,
or efforts "to make Prudential aware" of damage awards against
other insurance companies, seemingly as a warning.

-9-
that the decision to terminate Richards' benefits in 2001 was

appropriate.

After rehashing some of the lengthy procedural history of

the case, the denial letter detailed the findings of Dr. Howard and

Dr. Dayton Dennis Payne, who reviewed Richards' records in April

2006. Dr. Payne's report noted Richards' diagnoses of chronic

fatigue syndrome, chronic fatigue immune dysfunction syndrome and

fibromyalgia. He also noted Richards' myriad other symptoms,

including short-term memory issues, irritable bowel syndrome,

depression and possible bursitis. Dr. Payne found that Richards'

records showed that his symptoms had remained "essentially

unchanged" over the fifteen years since he began receiving

benefits, and also noted the statements by others that he would

"never be able to return to gainful employment."

Dr. Payne also determined, however, that he could find no

evidence of "destructive rheumatic findings," or that Richards had

limitation of motion in his joints, weakness or atrophy, or

specific organ system abnormalities. In light of these findings,

Dr. Payne concluded that: 1) the records did not support a finding

of functional impairment existing from June 2001 forward; 2) the

records contained no objective evidence of any disease process that

would be expected to lead to any restrictions or limitations; 3)

while there was no evidence of malingering, no physical examination

or testing procedure revealed objective evidence of impairment; and

-10-
4) because the objective findings did not support any degree of

restrictions or limitations, Richards would be expected to have

age-appropriate functional capacity.

Dr. Howard's report, dated July 6, 2006, noted that

Richards' rheumatological symptoms between 2001 and 2006 were

consistent with fibromyalgia, but that the resulting functional

impairments were "mild in nature." Dr. Howard noted the 1991

opinions from Dr. O'Leary and Dr. Englender that posited that

Richards' symptoms should allow him to eventually return to work.

Dr. Howard also pointed out that a comprehensive physical

examination conducted by Dr. Hryniewich in 2001 contained normal

neurological findings, with no indication of any reported physical

examination abnormalities. Regarding Dr. Hryniewich's June 2006

letter, Dr. Howard implied that its conclusion of total disability

was somewhat suspect, given that a November 2005 examination

yielded normal results, other than a complaint of foot pain.

Additionally, Dr. Howard noted that while Dr. Hryniewich's letter

cited side-effects of pain medication, the medical records

themselves lacked any reference to side effects. Moreover, Dr.

Howard suggested that Richards' non-compliance with recommended

exercise programs deprived him of an opportunity to improve his

functional capacity.

Relying on what he described as an "absence of any

abnormalities by radiological study, laboratory studies and . . .

-11-
repeated physical examinations," Dr. Howard expressed his opinion

that Richards, despite a "mild degree of impairment," would be able

to perform sedentary work involving sitting, walking occasionally,

standing frequently, lifting ten pounds frequently (occasionally

twenty), working at a desk, and using his hands and fingers without

restriction.

As noted, Prudential, relying in large measure on the

opinions of Drs. Payne and Howard, rejected Richards' final appeal,

concluding that "the medical evidence overwhelmingly supports that

Mr. Richards has been capable of returning to work on a full time

basis in both his own occupation as well as in an alternate,

gainful occupation since at least June 01, 2001."

C. District court proceedings

Having exhausted his administrative remedies, Richards

filed suit in federal district court, seeking reinstatement of

benefits retroactive to June 2001, attorneys fees, and roughly

$43,000 in sanctions against Prudential for failing to provide

certain documents during the administrative process. In due

course, the parties filed cross-motions for summary judgment, which

were referred to a magistrate judge for a report and recommendation

("R & R").

Following a hearing, the magistrate judge recommended

that Prudential's motion be granted and that Richards' be denied.

In the course of reaching its conclusion, the fifty-six page R & R

-12-
rejected Richards' arguments that Dr. Brachman was not qualified to

evaluate Richards' records, that Prudential did not provide him

with enough information about the benefit termination, and that

Prudential improperly required Richards to supply "objective

medical evidence" in support of his claim. Moreover, the R & R

refused Richards' entreaties to give special weight to the Social

Security Administration's favorable benefit determination and the

opinion of Dr. Hryniewich, as Richards' treating physician. The

district court judge adopted the R & R over Richards' objections

and denied multiple motions for reconsideration. This appeal

followed.

II. ANALYSIS

A. Standard of review

Prior to addressing the substance of Richards'

grievances, the district court ruled in his favor on an important

preliminary issue. The parties had disputed the applicable

standard of review. Prudential sought to have the court review the

administrative record for abuse of discretion, while Richards urged

a more searching de novo review. See Firestone Tire & Rubber Co.

v. Bruch, 489 U.S. 101, 115 (1989) ("[A] denial of benefits

challenged under [29 U.S.C.] § 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 . . . ."). After a thorough review of

-13-
cases addressing identical policy language from this circuit and

elsewhere, the court concluded that application of the de novo

standard of review was warranted. Prudential does not challenge

this ruling.8

Our task is to independently weigh the facts and opinions

in the administrative record to determine whether the claimant has

met his burden of showing that he is disabled within the meaning of

the policy. We grant no deference to the administrators' opinions

or conclusions. Orndorf v. Paul Revere Life Ins. Co., 404 F.3d

510, 518 (1st Cir. 2005). In other words, we stand in the shoes of

the administrator to "determine . . . whether the administrative

decision was correct." Few v. Liberty Mutual Ins. Co., No. 06-CV-

00427-JL, 2009 WL 756211 (D.N.H. March 19, 2009); cf. Leahy v.

Raytheon Co., 315 F.3d 11, 19 (1st Cir. 2002) (under arbitrary and

capricious review, reviewing court may not substitute its opinion

for that of the plan administrator). Where, as here, review is

based on the administrative record and represents an ultimate

conclusion as to a claimant's disability to be drawn from the

facts, "summary judgment is simply a vehicle for deciding the

issue." Orndorf, 404 F.3d at 517. Accordingly, the non-moving

8
The district court also denied Richards' motion to supplement
the record with an affidavit in which he described his condition.
As Richards contested this decision only in his reply brief, it is
waived. See Cunningham v. Nat'l City Bank, 588 F.3d 49, 54 n.6
(1st Cir. 2009) (arguments not raised in appellant's opening brief
are waived).

-14-
party is not entitled to the usual inferences in its favor. Id.

In sum, "[o]ur guiding principle in conducting de novo review . .

. is that the plaintiff bears the burden of proving he is

disabled." Id. at 518-19. Therefore, in the context of the policy

definitions applicable here, Richards' burden is to prove that he

is "unable to perform for wage or profit the material and

substantial duties of any job" for which he is reasonably fit by

education, training or experience.

B. Appellant's claims

Richards makes three arguments on appeal. First, he

claims that no weight was given to Dr. Hryniewich's opinions.

Second, he asserts error in the failure to give "any weight" to the

Social Security Administration's ruling in his favor. Finally, he

argues that it was "error for the court to adopt the opinion of a

paper consulting physician who proffered a psychiatric condition to

the plaintiff" without justification. We address these arguments

in turn.

1. Dr. Hryniewich's opinions

Richards complains that the district court did not give

any weight to Dr. Hryniewich's opinions. Since we are reviewing

the administrator's decision, we construe this argument as though

it were directed at Prudential. Regardless, Richards' complaint

about the alleged exclusion of Dr. Hryniewich's records falls short

of the mark. For example, he argues that reference to Hryniewich's

-15-
notes were absent from Dr. Brachman's 2001 report. Our review of

the nearly 1,000-page administrative record suggests otherwise.

Dr. Brachman's report explicitly mentions review of records from

Richards' visits to the Fallon Clinic in Massachusetts. Included

among these records were office notes from several visits with Dr.

Hryniewich in 1997, 1999 and 2000 as well as Attending Physician's

Statements from 1997 and 1999 in which Dr. Hryniewich informed

Prudential of Richards' fibromyalgia and chronic fatigue, and

stated that Richards' ability to perform work duties was "unknown."

Moreover, as previously noted, Dr. Hryniewich's 2006 conclusion

that Richards was disabled from any work was addressed by Dr.

Howard during the final level of appeal.

A broader reading of Richards' argument suggests that his

actual grievance is that Dr. Hryniewich's conclusions should have

been given controlling weight, especially when compared to the

doctors who reviewed Richards' record without examining him. This

argument is contrary to existing law, as "the opinion of the

claimant's treating physician, which was considered, is not

entitled to special deference." Orndorf, 404 F.3d at 526 (citing

Black & Decker Disability Plan v. Nord, 538 U.S. 822, 831 (2003)).9

9
By contrast, treating physicians' opinions are ordinarily
accorded deference in Social Security disability proceedings. See
Morales-Alejandro, 486 F.3d at 700 n.7 (citing 20 C.F.R. §
404.1527(d)(2)). That deference does not extend, however, to a
physician's opinion -- such as the one offered by Dr. Hryniewich –
that a claimant is unable to work, as such an opinion is not a
medical one. Id.

-16-
 In the final analysis, Dr. Hryniewich's opinions provide

a shaky foundation for Richards' claim. First, his descriptions in

1997 and 1999 of Richards' employment prospects as "unknown" is at

odds with his later pronouncements that Richards was disabled from

any employment. Similarly, office notes from 2001 and 2005 contain

no reference to disability from fibromyalgia.

Against this backdrop, we reject Richards' arguments

regarding the adequacy of the weight given to Dr. Hryniewich's

opinions.

2. Social Security disability determination

After Richards' initial application for Social Security

disability benefits was denied in 1991, an administrative law judge

ruled in his favor in October 1992. Richards argues that it was

error to not give "any weight" to the fact that he was awarded

Social Security disability benefits due to fibromyalgia and chronic

fatigue immune dysfunction. We disagree with both the factual

premise of the argument -- that no weight was given -- and its

implied legal conclusion -- that the Social Security decision

inexorably leads to reversal of Prudential's decision.

As a factual matter, the record suggests that Prudential

did not ignore Richards' receipt of Social Security benefits. To

the contrary, in rejecting Richards' first request for

reconsideration in 2004, Prudential stated that its determinations

"are independent from those of the Social Security Administrations

-17-
[sic] although we will review and consider documentation concerning

their [sic] decisions."10

Richards fares no better when the legal underpinnings of

his argument are examined. Similar to his argument regarding his

treating physician, Richards seems to suggest that the Social

Security determination is entitled to a high degree of deference.

However, in Pari-Fasano v. ITT Hartford Life and Accident Insurance

Co., we held that "benefits eligibility determinations by the

Social Security Administration are not binding on disability

insurers." 230 F.3d 415, 420 (1st Cir. 2000). While the Social

Security determination might be relevant to an insurer's decision,

"it should not be given controlling weight except perhaps in the

rare case in which the statutory criteria are identical to the

criteria set forth in the insurance plan." Id. Here, Richards has

not attempted a comparison between the two sets of criteria and has

thus waived that strand of argument. See United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990). Even if we were to ignore the

waiver, however, the administrative law judge's ruling on Richards'

application for disability benefits contains the following finding:

"The claimant retains the residual functioning capacity for less

than a full range of sedentary work activity" (emphasis added).

Given that, in the context of this case, the policy at issue

requires Richards to prove that he is disabled from all sedentary

10
The district court made a similar pronouncement.

-18-
work, a finding that he retains the capacity for "less than a full

range" of such work hardly bolsters his case.11 Accordingly, we

find no merit to Richards' Social Security-based argument.

3. "Paper consulting physicians"

Richards' final argument is targeted at both the specific

opinion of Dr. Brachman and, more generally, at the use of non-

examining physicians to review claimant files. As to the latter,

Richards argues that the policy language giving Prudential the

right to have a claimant undergo a physical examination somehow

limits Prudential to the use of physical exams.12 We do not share

this strained reading of the policy language, for which Richards

has provided no legal support.13 Moreover, we have squarely held

that an insurer is not required to physically examine a claimant,

11
We also note that the Social Security award was made in 1992,
while Prudential's termination occurred nine years later. Although
Richards points out that only Prudential terminated his benefits,
he does not specify whether, or to what extent, his Social Security
claim was reviewed in the years following the 1992 decision.
12
Under the section captioned "Claim Rules," the Plan provides
that "Prudential, at its own expense, has the right to examine the
person whose loss is the basis of the claim. Prudential may do
this when and as often as is reasonable while the claim is
pending."
13
Richards invokes the doctrine of contra proferentem,
according to which ambiguous policy terms must be strictly
construed against the drafter during de novo review. See Stamp v.
Metropolitan Life Ins. Co., 531 F.3d 84, 93 (1st Cir.), cert.
denied, 129 S. Ct. 636 (2008); Balestracci v. NSTAR Elec. and Gas
Corp., 449 F.3d 224, 231 n.2 (1st Cir. 2006). Here, however, we
find no ambiguity in the policy provision giving Prudential the
right to have Richards examined, such that it should be read as a
requirement.

-19-
and that benefit determinations may be based on reviews of medical

records. Orndorf, 404 F.3d at 526. Additionally, as in Orndorf,

"this is simply not a case where the only medical evidence ran in

[claimant's] favor, thus casting into doubt a denial of benefits."

Id. In fact, while the evidence may have supported the diagnoses

of fibromyalgia or chronic fatigue immune dysfunction, every

reviewing, board-certified doctor, with the exception of Dr.

Hryniewich, found that Richards could perform a sedentary job for

which he was reasonably fit by education, training or experience.14

As to Dr. Brachman's opinion, Richards first takes issue

with her medical qualifications. We are not persuaded. The record

reflects that Dr. Brachman specializes in occupational medicine and

rheumatology, and Richards offers no evidence to the contrary.

Next, Richards argues that Brachman improperly ascribed

a psychiatric condition -- depression -- to him without any basis.

He then asserts that Prudential used this finding to discontinue

his benefits by relying on the Plan's twenty-four month maximum

payment period for disabilities "caused in whole or part by a

mental health issue." Even assuming that Dr. Brachman's mental

14
As previously noted, Dr. Hryniewich's definitive statements
regarding Richards' incapacity came several years after the initial
denial and were arguably inconsistent with his pre-termination
opinions regarding Richards' employment prospects, which he at
least twice described as "unknown."

-20-
health conclusion is overstated,15 Richards' argument nevertheless

fails for two related reasons. First, while Dr. Brachman in her

report discussed the medical record evidence of depression in

Richards' history, she also addressed the lack of evidence of

physical impairment, including synovitis, deformity, or decreased

range of joint motion. She also noted the lack of any inflammatory

vascular disease or neurocognitive impairment. Second, Prudential

did not terminate Richards' benefits on the ground that he had

exhausted them under the mental health provisions of the Plan.

Instead, Prudential explicitly stated that it was evaluating

whether his "current physical condition prevented [him] from

performing any occupation." In other words, regardless of Dr.

Brachman's reference to Richards' mental health history, the

requirement that he prove his then-current physical disability

remained.

Finally, to the extent that Richards argues that Dr.

Brachman did not review the entirety of his medical history, we

note that "the denial letter need not detail every bit of

information in the record; it must have enough information to

render the decision to deny benefits susceptible to judicial

15
There are, in fact, references to depression in the record
dating back to the early 1990s. In Dr. Brachman's opinion,
depression can lead to a magnification or exaggeration of
fibromyalgia symptoms. While Richards disputes this conclusion,
his brief contains no refutation to the articles upon which Dr.
Brachman relied in her report.

-21-
review." Orndorf, 404 F.3d at 526. Dr. Brachman's report and

Prudential's termination letter easily satisfy this standard.16

III. CONCLUSION

We are not without sympathy to Richards' plight.

However, the dispute in this case is not over whether Richards is

afflicted with fibromyalgia or chronic fatigue immune dysfunction.

And while termination of benefits after ten years of payments is a

harsh outcome, it is one that Prudential was legally entitled to

pursue within ERISA's strictures. The sole issue before us is

whether Richards met his burden of showing that these conditions

rendered him unable to perform any job for which he is qualified.

Based on the record before us, we agree with the administrator and

the district court that he has failed to meet his burden. The

judgment of the district court is therefore affirmed.

16
One possible basis for Richards' view is that the letter to
him from Prudential lists certain records as "included" among those
sent to Dr. Brachman, while Brachman's report contains a much
larger list of records she actually reviewed.

-22-