Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1620
KATHLEEN KINDELAN,
Plaintiff-Appellant,
v.
DISABILITY MANAGEMENT ALTERNATIVES, LLC, ET AL.
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lipez, Circuit Judge,
Souter, Associate Justice,*
and Howard, Circuit Judge.
Vicki J. Bejma, with whom Robinson & Clapham was on brief,
for appellant.
George P. Kostakos, with whom Carie A. Torrence and Littler
Mendelson, P.C. were on brief, for appellees.
August 17, 2011
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. This is an appeal from a
district court judgment sustaining denial of disability benefits
under an employee health plan subject to the Employee Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461. The
issue was joined on cross motions for summary judgment on which the
trial court sat in an essentially appellate capacity, see Cusson v.
Liberty Life Assurance Co., 592 F.3d 215, 224 (1st Cir. 2010),
subject to this court’s de novo review, see Orndoff v. Paul Revere
Life Ins. Co., 404 F.3d 510, 516-17 (1st Cir. 2005).1
The appellant, Kathleen Kindelan, has had serious back
trouble for over thirty years, with a number of surgeries, the most
recent being a lumbar fusion in 2005. Dr. Mark Palumbo saw her on
September 25, 2007, and noted that she was getting along
“reasonably well” and “doing well from a functional standpoint.”
On October 3, however, she returned to report back and lower
extremity pain. The doctor noted anxiety and agitation, and
recommended four to six weeks at home, with back exercises and pain
killers.
Kindelan followed the advice and applied for benefits to
the defendant UnitedHealth Group Short Term Disability Plan, which
delegated benefits administration to the defendant Disability
1
A plenary recitation of the facts and procedural history of
this case can be found in the district court’s opinion. See
Kindelan v. Disability Mgmt. Alts., LLC, 706 F. Supp. 2d 210
(D.R.I. 2010).
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Management Alternatives (DMA). After a false start, DMA denied the
claim on October 24, 2007, a decision which was affirmed after
further consideration on November 5, 2007, and was affirmed again
on February 21, 2008, after an appeal that included review by an
outside physician on contract with the Plan, Dr. Amy Hopkins.
The October letter simply listed a series of disabilities
not covered, including those whose courses “cannot be verified and
measured using generally accepted standard medical procedures and
practices . . . . [C]onditions commonly referred to as
self-reported conditions [including without limitation] fatigue,
loss of energy, [and] pain . . . .” The November letter explained
that material from Dr. Palumbo in support of Kindelan’s application
“provides no evidence of any physical and functional limitations”
that would preclude working and advised that any appeal should be
supported by medical records for the period after October 1,
including “the results of diagnostic studies such as x-rays and
laboratory tests . . . .” Finally, the February 2008 letter after
the administrative appeal noted “no evidence of any physical or
functional limitation” on work and summarized the gist of the
reasons for denial in these words:
It is not clear why an individual would
go from being fully functional at work and at
home to unable to work at all in such a short
time period with no documented change in
examination or diagnostic test results and
with no aggressive treatment ordered. Dr.
Palumbo ordered x-rays of the lumbar spine,
which were unremarkable, but no further
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testing, such as MRI, to explain this sudden
change in your condition. While you have a
long and complicated musculoskeletal history,
it appears that there may be more than
physical reasons why you went out of work.
The medical record does not convincingly
document your inability to work full time from
October, 1, 2007 onwards.
At the outset, several issues may be placed to one side
as inconsequential to the outcome. First, although Kindelan claims
she had no adequate chance to rebut Dr. Hopkins’s reasons for
affirming denial, she was given the opportunity ERISA and its
regulations guarantee, of submitting evidence and information. See
29 C.F.R. § 2560.503-1(h). In effect, Kindelan is claiming a right
to a further administrative appeal. Second, there is no reason to
think that the appeal decision suffered from according inadequate
weight to the decision of the Social Security Administration to
provide disability benefits. Although the federal scheme restricts
such benefits to claimants who can perform no work (not just their
prior job, as under the Plan’s terms), there is no indication that
Social Security restricts qualifying disabilities to those that can
be proven on the evidence required by the Plan. The evidentiary
significance of any federal determination is accordingly limited.
See Pari-Fasano v. ITT Hartford Life & Accident Ins. Co., 230 F.3d
415, 420 (1st Cir. 2000). Third, as will be seen from the
discussion of the basis for denial that follows, it does not matter
here whether the Plan’s decision is subject to review simply for
arbitrary or capricious action, or abuse of discretion, as in the
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ordinary case, or should be subjected to that standard with
particular consideration of any conflict of interest on the part of
the administrative decision makers (as alleged here on the part of
DMA owing to the amount of business it gets from the Plan, and on
the part of Dr. Hopkins due to the volume of her work for DMA).
Enhanced scrutiny would not affect the result. For the same
reason, it does not matter that the district court struck from the
record opinions from other courts critical of Dr. Hopkins, which
Kindelan offered as evidence of bias in favor of insurance
providers.
With these matters out of the way, the heart of the case
can be simply stated. Although Kindelan’s chronic back trouble
generated a history of test results confirming the symptoms she
reported over the years, her burden in order to obtain the desired
disability coverage is to document what she claims to have been a
debilitating change in the course of the week after her regular
periodic examination. Because she says that the allegedly covered
disability occurred after her September visit to the doctor, what
counts under the Plan is her condition in that ensuing period. On
September 26, Dr. Palumbo noted that she had no serious functional
difficulties. On October 3 she reported such pain that the doctor
recommended time off from work. But she and her treating physician
provided no test results or medical diagnostic evidence to explain
the sudden deterioration. After the October 3 visit, Dr. Palumbo
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did not order any additional tests, medical or psychological.
While the doctor speculated that the explanation might well lie in
the mind, not the spine, that is as far as he followed his line of
thinking, and at the end of the day Kindelan offered nothing to
explain the change she claimed, beyond the “self-reported” pain
that the plan expressly excludes as an independently covered
disability. On this record, it is difficult to see how any Plan
administrator or appellate reviewer could have concluded that she
had shown a covered disability falling within the Plan definitions
and supported by the evidence they require for proof of a claim.
Affirmed.
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