Kindelan v. Disability Management Alternatives, LLC

Not for Publication in West's Federal Reporter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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