United States Court of Appeals
For the First Circuit
No. 20-1464
RHONDA OVIST,
Plaintiff, Appellant,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA;
UNUM GROUP,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Lynch and Selya, Circuit Judges,
and Laplante,* District Judge.
Jonathan M. Feigenbaum for appellant.
Katrina T. Liu, Trial Attorney, Plan Benefits Security
Division U.S. Department of Labor, Kate S. O’Scannlain, former
Solicitor of Labor, G. William Scott, Associate Solicitor for Plan
Benefits Security U.S. Department of Labor, and Thomas Tso, Counsel
for Appellate and Special Litigation U.S. Department of Labor, on
brief for the Secretary of Labor, amicus curiae.
Joseph M. Hamilton, with whom Mirick, O’Connell, DeMallie &
Lougee, LLP was on brief, for appellees.
* Of the District of New Hampshire, sitting by designation.
September 22, 2021
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LAPLANTE, District Judge. This case involves a
dispute over the applicability of a self-reported symptoms benefit
limitation provision to a long-term disability claim. Plaintiff-
appellant Rhonda Ovist is a participant in her employer’s long-
term disability plan (“the Plan”), which is insured and
administered by defendant-appellee Unum Life Insurance Company of
America and governed by the Employee Retirement Income Security
Act (“ERISA”), 29 U.S.C. §§ 1001 et. seq. Ovist, who suffers
from Chronic Fatigue Syndrome (“CFS”), fibromyalgia, and
associated symptoms including pain and fatigue, was granted
benefits under the Plan in 2011. The Plan provides for a maximum
benefit period of 24 months for “disabilities due to mental illness
and disabilities based primarily on self-reported symptoms.” Unum
terminated Ovist’s benefits under this provision (“the SRS
limitation”) in February 2015, after paying benefits to Ovist for
about 43 months.
Following an unsuccessful administrative appeal, Ovist
filed an ERISA action in the U.S. District Court for the District
of Massachusetts, seeking recovery and reinstatement of her
benefits as well as attorneys’ fees and costs. The parties filed
cross-motions for summary judgment, and the district court granted
Unum’s motion but denied Ovist’s cross-motion. Ovist v. Unum Life
Ins. Co. of Am., No. 4:17-cv-40113-TSH, 2020 WL 1931755 (D. Mass.
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Feb. 21, 2020), report and recommendation adopted, No. 4:17-cv-
40113, 2020 WL 1931958 (D. Mass. Mar. 27, 2020).
Ovist challenges Unum’s decision to terminate her
benefits; in particular, Ovist objects to Unum’s requirement that
she provide objective evidence of her functional limitations1 in
order to avoid the SRS limitation. This requirement, Ovist
contends, runs counter to the parameters of the SRS limitation, as
interpreted by the Seventh Circuit Court of Appeals in Weitzenkamp
v. Unum Life Insurance Company of America, 661 F.3d 323 (7th Cir.
2011). In Weitzenkamp, the court concluded that a nearly identical
SRS limitation is applicable to “disabling illnesses or injuries
that are diagnosed primarily based on self-reported symptoms
rather than to all illnesses or injuries for which the disabling
symptoms are self-reported.” Id. at 330 (emphasis in original).
Ovist further argues that the SRS limitation does not apply to her
claim under Unum’s interpretation of the provision, since she
provided objective evidence of her functional limitations, which
Unum unreasonably rejected.
We decline Ovist’s invitation to adopt the Seventh
Circuit Court of Appeals’ holding in Weitzenkamp, concluding
A “functional limitation” is a “restriction or lack of
1
ability in performing an action as a result of a disability.”
American Psychological Association, APA Dictionary of Psychology,
at https://dictionary.apa.org/functional-limitation. We use the
terms “functional loss” and “functional limitations”
interchangeably.
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instead that Unum’s objective evidence requirement is permissible
under this circuit’s precedent and is consistent with a reasonable
interpretation of the SRS limitation provision. Further, we find
that Unum’s determination that Ovist lacked objective proof of her
functional limitations rests on substantial evidence in the
record, and is thus not arbitrary or capricious. We accordingly
affirm the entry of summary judgment to Unum.2
I. Facts
Ovist began working as a sociology professor at Rollins
College in 1999. Her responsibilities included teaching, advising
students, developing courses, grading papers, and researching and
writing. In its claim log, Unum noted that Ovist began reporting
and seeking treatment for “severe fatigue and generalized diffuse
pain in 2003,” and she was treated with narcotics and “several
courses of antiviral agents.” Ovist’s complaints of pain and
fatigue continued over the years. Rollins College approved Ovist’s
request for short-term disability leave from January 9, 2011 to
June 1, 2011, based on diagnoses of chronic fatigue syndrome
(“CFS”), cytomegaloviral illness, sleep apnea, chronic sinusitis,
2 The Secretary of Labor filed a brief in this case as amicus
curiae. In the brief, the Secretary supports placing the burden
on the plan, and not the plan participant, to prove the
applicability of a benefit limitation, such as the SRS limitation.
We acknowledge and appreciate the Secretary’s assistance in this
case.
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and parvovirus. In June 2011, Ovist applied for long-term
disability benefits under the Plan.
A. Relevant Terms of the Plan
The Plan “delegates to Unum . . . discretionary authority
to make benefit determinations under the Plan[,] . . . includ[ing]
determining eligibility for benefits and the amount of any
benefits, resolving factual disputes, and interpreting and
enforcing the provisions of the Plan.” An individual is considered
“disabled” and eligible for benefits under the Plan when she is
“limited from performing the material and substantial duties of
[her] regular occupation due to [her] sickness or injury; and [has]
a 20% or more loss in [her] indexed monthly earnings due to the
same sickness or injury.”
This case centers on Unum’s interpretation and
application of the SRS limitation, a provision of the Plan that
limits the benefit period to 24 months for certain disabilities.
The SRS limitation provides:
The lifetime cumulative maximum benefit period
for all disabilities due to mental illness and
disabilities based primarily on self-reported
symptoms is 24 months. Only 24 months of
benefits will be paid for any combination of
such disabilities even if the disabilities:
are not continuous; and/or are not related.
The Plan defines mental illness as:
A psychiatric or psychological condition
classified in the Diagnostic and Statistical
Manual of Mental Health Disorders (DSM},
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published by the American Psychiatric
Association, most current as of the start of
a disability. Such disorders include, but are
not limited to, psychotic, emotional or
behavioral disorders, or disorders relatable
to stress.
And the Plan defines self-reported symptoms as:
The manifestations of your condition which you
tell your physician, that are not verifiable
using tests, procedures or clinical
examinations standardly accepted in the
practice of medicine. Examples of self-
reported symptoms include, but are not limited
to headaches, pain, fatigue, stiffness,
soreness, ringing in ears, dizziness, numbness
and loss of energy.
B. First Review of Disability Claim
Ovist submitted her long-term disability claim form in
June 2011, listing CFS as the illness causing her disability. In
an accompanying Attending Physician Statement, Ovist’s primary
care physician, Dr. John Hudson, confirmed that CFS is the “primary
diagnosis preventing the patient from working[.]” He also listed
secondary diagnoses of Parvovirus3 and fibromyalgia,4 along with
3 According to the Mayo Clinic, “most people with parvovirus
infection have no signs or symptoms. When symptoms do appear, they
vary greatly depending on how old you are when you get the disease.”
For adults, “[t]he most noticeable symptom of parvovirus infection .
. . is joint soreness lasting days to weeks.” Mayo Clinic, Parvovirus
infection, at https://www.mayoclinic.org/diseases-
conditions/parvovirus-infection/symptoms-causes/syc-20376085.
4 According to the National Institute of Health, fibromyalgia
is “a long-lasting or chronic disorder that causes muscle pain and
fatigue,” and “[t]he symptoms of fibromyalgia are pain and
tenderness throughout your body.” National Institute of Health,
Fibromyalgia, at https://www.niams.nih.gov/health-topics/fibromyalgia.
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the following symptoms: severe chronic fatigue, severe muscle and
joint pain, dizziness, insomnia, depression, and “unclear mental
clarity, or brain fog[.]”
The following month, on July 15, 2011, Dr. Hudson
completed a detailed assessment of Ovist, in which he repeated
many of the same diagnoses and symptoms, along with acute and
chronic sinusitis, opioid withdrawal, chronic bronchitis, and
various viral infections. Dr. Hudson indicated that he referred
Ovist to Dr. Nancy Klimas, a chronic fatigue specialist, for a
second opinion on CFS and fibromyalgia.
In an Initial Progress Note dated July 29, 2011, Dr.
Klimas wrote that Ovist is “very disabled . . . with [symptoms]
consistent with CFS.” Dr. Klimas prescribed a sleep study to
determine the presence of apnea and ordered lab tests for “immune
activation, function, [and] cytokines.”
In August 2011, Unum sent letters to three of Ovist’s
physicians—Dr. Kent Hoffman, who treated Ovist for pain and opioid
dependence; Dr. Klimas; and Dr. Cory Baill, a gynecologist who
began treating Ovist as early as 2002—to ask whether they
restricted Ovist from completing her work, which, according to
Unum’s Vocational Rehabilitation Consultant, involved light
physical demands. Specifically, Unum asked the doctors if they
“restrict Ms. Ovist from performing full time work [that includes]
sitting up to frequently and standing/walking up to frequently;
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exerting 20 [pounds] of force occasionally or ten [pounds] of force
frequently, and/or a negligible amount of force constantly to lift,
carry, push, pull, or otherwise move objects, including the human
body[.]” Each doctor confirmed that Ovist could not work under
the physical demands listed.
On September 1, 2011, Dr. Freeman Broadwell, a medical
consultant for Unum, reviewed Ovist’s file and found that she
consistently reported pain and fatigue and received treatment for
these symptoms from multiple providers over several years. Dr.
Broadwell did not find, however, that the “existence, intensity,
frequency, and duration of chronic pain and fatigue [were]
consistent with the clinical examination / diagnostic findings.”
Nor did he find from Ovist’s work-up that chronic infection or any
other physical condition could explain a level of impairment that
rendered Ovist unable to work. Dr. Broadwell nonetheless concluded
that “[d]ue to the consistency of [Ovist’s] reports” of chronic
pain and fatigue “corroborated by her providers and absence of
evidence to the contrary, the [restrictions and limitations] of no
work are supported.”
In a letter dated September 13, 2011, Unum approved
Ovist’s claim for long-term disability benefits “due to the
symptoms related to [her] medical condition of [CFS].” Unum noted
that her file shows that she had “consistently reported and been
treated for self-reported complaints of chronic fatigue and
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chronic diffuse pain,” and added that the Plan “limit[s] [Ovist’s]
benefits to 24 months due to [her] medical condition of [CFS].”
Consequently, Unum provided an end date of June 29, 2013 for
Ovist’s benefit payments.
C. Second Review of Disability Claim
During 2012 and 2013, Ovist’s physicians and Unum’s
Personal Visit Consultant documented the persistence of Ovist’s
conditions and symptoms. In a status update dated January 6, 2012,
Dr. Klimas observed that Ovist continued to have physical and
cognitive impairments, and that her pain was a “very serious issue
. . . requiring increasing levels of pain med[ications].” She
provided a primary diagnosis of immune deficiency based on
“laboratory testing demonstrat[ing] poor cellular function . . . ,
proinflammatory cytokine expression, [and] serology consistent
with viral reactivation.” Dr. Klimas also listed secondary
diagnoses of fatigue and fibromyalgia. On May 4, 2012, Dr. Klimas
reported no improvement in Ovist’s functional capacity and advised
that Ovist have “unrestricted access to rest” and “avoid exposure
to community acquired infections.”
On May 14, 2012, Unum’s Personal Visit Consultant, Mark
Cox, conducted a field visit with Ovist. Cox noted in his report
that Ovist remained seated throughout the visit, and he “did not
observe the insured display any physical signs of pain / discomfort
while she was seated . . . .” But Cox also found that Ovist
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“appeared tired and fatigued throughout the entire field visit,”
“appeared to have some difficulty staying focused on the topics
being discussed,” and occasionally slurred her speech. A couple
months later, in response to a request for information from Unum,
Dr. Hoffman opined that Ovist’s diagnoses were chronic pain
syndrome, fibromyalgia, and opioid dependence. He maintained that
Ovist was unable to work.
Ovist’s behavioral health issues also begin to appear in
the record during this time period. Around August 2012, Ovist
began seeing a clinical psychologist, Dr. Catherine Segota. That
same month, Ovist submitted a form to the Florida Department of
Health, in which she reported experiencing daily panic and/or
anxiety attacks that lasted from 15 minutes to hours. Roughly one
month later, on September 14, 2012, Ovist was awarded social
security disability insurance (“SSDI”) benefits retroactive to
April 2012. The Social Security Administration determined that
Ovist was disabled as of October 26, 2011, with diagnoses of “other
unspecified arthropathy”5 and “anxiety related disorder.”
On July 19, 2013, Dr. Tony Smith, a medical consultant
for Unum, reviewed Ovist’s file and wrote that multiple specialists
According to Johns Hopkins Medicine, arthropathy is “a
5
joint disease, of which arthritis is a type,” and its symptoms
include “joint swelling, stiffness[,] [and] reduced range of
motion.” Johns Hopkins Medicine, Arthropathy, at
https://www.hopkinsmedicine.org/health/conditions-and-
diseases/arthropathy.
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diagnosed Ovist with CFS, fibromyalgia, and chronic pain syndrome,
though “[n]o specific etiology for the opined diagnoses has been
established to date.” Dr. Smith determined that “the medical data
documenting Ovist’s consistent complaints,” Ovist’s level of
treatment, Dr. Hoffman’s report of narcotic dependence, Cox’s
description of Ovist’s lack of focus and slurred speech, and the
2012 SSDI award “reasonably support[] a finding that Ms. Ovist may
have difficulty working in a sedentary or light capacity on a
consistent basis.” He added that Ovist’s “improvement is
reasonable and expected,” and he suggested a follow-up with Ovist
in 8-12 months.
Unum’s claim log indicates that, on July 22, 2013, Unum
notified Ovist over the phone that her claim would undergo further
review and her benefits would continue, though the initial 24-
month benefit period had passed in June. Unum also conveyed to
Ovist that it still found that she was unable to work, but
improvement was reasonable and expected. The following day, Unum
noted in the claim log that Ovist’s file was transferred to the
Special Benefits Unit CORE section, and the next steps were an
annual telephone call with Ovist and a medical update in 12 months.
One year later, in June 2014, Ovist’s file was “reassign[ed]” from
the CORE to the “Comp.” section, “to hold” the annual telephone
call with Ovist, “request records,” review her eligibility, and
“discuss[] [] the SR[S] limitation.” Ovist asserts, based on an
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affidavit from an employee of Unum, that the CORE section manages
claims pertaining to conditions that are unlikely to improve, and
the “Comp.” section “manages claims with great scrutiny.”
D. Third Review of Disability Claim
In August and September 2014, Unum reached out to Ovist’s
treatment providers, Dr. Deborah Dube, Dr. Hoffman, Dr. Segota,
and Dr. Klimas, requesting updates on Ovist’s conditions and
functional limitations. Dr. Dube, Dr. Hoffman, and Dr. Segota
responded to Unum in November 2014. Dr. Klimas’s response reached
Unum after it completed its third review of Ovist’s claim, and
Unum considered it in its next review, as discussed further below.
Dr. Dube, who treated Ovist for fatigue, generalized
pain, and chronic sinus infections, stated that she was unable to
provide information on Ovist’s functional capacity because her
office did not perform functional capacity testing. Dr. Hoffman
maintained that Ovist’s primary diagnoses were fibromyalgia and
chronic pain syndrome, and her secondary diagnosis was opioid
dependence. He explained that Ovist was still unable to work
because her “mental and physical capacities are very time limited
and easily exhausted.” Finally, Dr. Segota noted that she met
with Ovist on fifteen occasions in the previous two years, and
that she diagnosed Ovist with major depressive disorder,
generalized anxiety disorder, panic disorder, posttraumatic stress
disorder, and “unspecified neurocognitive” issues. Dr. Segota
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listed sadness, rumination, hopelessness, sleep disturbance, and
fatigue as “data which support[ed]” the diagnoses, and she
concluded that Ovist was unable to work for an unknown period of
time due to the severity and chronic nature of her symptoms.
Shortly thereafter, on December 14, 2014, Unum consulted
with its legal counsel regarding any “concerns with possibly
applying [the SRS Limitation] to dx [a diagnosis] which may include
. . . fibromyalgia[.]” Counsel advised Unum that “[t]here is no
binding precedent in the Eleventh Circuit that would preclude
application of the [SRS] limitation when fibromyalgia has been
diagnosed.”
On December 30, 2014, Nurse Sarah Curran, a medical
consultant for Unum, reviewed Ovist’s file and agreed with Unum’s
reviewers who determined in “2011 and again in 2013 . . . that
there was no physical basis to explain the etiology of [Ovist’s]
reported complaints of extreme fatigue and pain[,] and [her
restrictions and limitations] were supported based on the
consistency of [her] complaints.” Nurse Curran also noted that
Ovist’s physical exams “remain unremarkable and there has been no
diagnostic testing performed to explain the etiology of [Ovist’s]
complaints.” Nurse Curran concluded that Ovist was unable to work
due to her pain and fatigue. She added that, based on Dr. Segota’s
report, Ovist was also functionally impaired “from a [behavioral
health] perspective” beginning in July 2012.
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A couple weeks later, Dr. Bryan Hauser, a medical
consultant for Unum, reviewed Ovist’s file and consulted Dr.
Hoffman. Based on that review, he agreed that Ovist was unable to
work due to the same “non-verifiable medical conditions.”
In a letter dated February 17, 2015, Unum notified Ovist
that, after reviewing updated information in her file, its
determination from 2011 remained in place—Ovist was unable to work
due to CFS and fibromyalgia, and the SRS limitation applied to her
claim. Unum explained that Ovist’s diagnoses “are considered self-
reported,” as they “cannot be verified or confirmed by physical
examination findings that are not dependent on [Ovist’s] report
and cannot be verified by diagnostic test findings.” Unum also
repeated its prior finding that Ovist’s “physical examinations
remain unremarkable,” and “[t]here had been no diagnostic testing
performed to explain the etiology of [Ovist’s] complaints.”
Finally, Unum noted that Ovist was functionally impaired from a
behavioral health perspective since July 2012, but since Ovist’s
maximum benefit period had already been exhausted in June 2013 due
to her conditions of CFS and fibromyalgia, Unum could “no longer
consider conditions or symptoms based on either behavioral health
or self-reported symptoms.” Ovist’s final benefit payment was
scheduled for the following day, February 18, 2015.
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E. Fourth Review of Disability Claim
Dr. Klimas responded to Ovist’s 2014 request for updates
in a letter dated February 24, 2015; this letter initiated a fourth
round of review of Ovist’s claim. In her letter, Dr. Klimas
asserted that Ovist was unable to work, and her symptoms included
fatigue, pain, cognitive dysfunction, sleep disturbance, and
headaches. Dr. Klimas listed diagnoses of CFS, Immune Deficiency
Syndrome, Myalgia, Orthostatic hypotension, and sleep disturbance,
and she noted that water and mold damage in Ovist’s home “probably
contributed to the worsening of her health.” She added that her
findings were “confirmed by physical examination, medical history,
and laboratory data . . . show[ing] impaired immune
function . . . and latent virus reactivations.”
According to the claim log, Unum tried to contact Dr.
Klimas multiple times in March 2015 “to clarify the etiologies of
[Ovist’s] impairing symptoms and the basis for the diagnosis of
[the] conditions” Klimas listed. Dr. Klimas’s response, dated
June 12, 2015, was considered by Unum’s Appeals Committee.6
On April 14, 2015, Dr. Hauser reviewed Ovist’s file
again. He disagreed with Dr. Klimas’s “assertion that [Ovist’s]
impairing symptoms are attributable to (either directly or
6Unum added Dr. Klimas’s June 2015 statement to Ovist’s claim
file on July 17, 2015. The content and opinions that Dr. Klimas’s
expressed in her June 2015 statement were similar to those
expressed in her February 2015 letter to Unum.
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indirectly) viral infection, immune deficiency, or any other
verifiable (through physical examination or diagnostic testing)
medical condition.” He also noted that Dr. Klimas’s tests for
viral infection only provided “evidence of past (and not acute or
ongoing)” infection. Overall, Dr. Hauser came to a similar
conclusion regarding Ovist’s claim as he did the previous year—
that Ovist was unable to work due to fatigue, pain, and depression,
and these symptoms were attributed to diagnoses of CFS,
fibromyalgia, and depression, which were not objectively verified.
With respect to fibromyalgia, Dr. Hauser stated that Ovist’s
diagnosis “is supported by the history of chronic
generalized . . . pain and the finding of at least 11 [of] 18
fibromyalgia tender points.” He elaborated on the subjective
nature of the tender point examination, noting that, during the
examination, “pain elicited by the application of pressure by the
examiner (i.e., tenderness) is experienced and reported by the
examinee; its existence cannot be verified.”
A couple days later, Unum medical consultant Dr. James
Bress completed an independent analysis of Ovist’s file. Dr. Bress
agreed that Ovist was unable to work, and he identified that Dr.
Klimas was the only treatment provider to state that Ovist’s
functional loss was “[due to] verifiable medical problems,” namely
immune impairment and latent virus reactivations. Like Dr. Hauser,
Dr. Bress disagreed with this aspect of Dr. Klimas’s opinion. He
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determined that Dr. Klimas’s finding was not supported by any
evidence, and that the tests Dr. Klimas administered to assess
immune function and viruses were not “standard medical testing”
and/or had no confirmed association with Ovist’s symptoms.
Unum sent Ovist a letter dated April 17, 2015, stating
that it maintained its decision to terminate her benefits under
the SRS limitation as of February 18, 2015. Unum explained that
Ovist was functionally impaired based on the non-verifiable
conditions of CFS, fibromyalgia, and depression. Unum added that
the diagnoses were “supported in part” by Ovist’s repeated reports
of pain and fatigue, as well as “the finding of at least 11/18
fibromyalgia tender points.”
On June 15, 2015, Ovist sent Unum a fungal report and a
November 2013 mold analysis of her home. Dr. Hauser and Dr. Bress
each reviewed the documentation and concluded that it did not
change their prior conclusions, as there is no proven association
between mold contamination or elevated fungal spores and Ovist’s
symptoms or diagnoses. Accordingly, on July 14, 2015, Unum
informed Ovist that its benefits determination and supporting
rationale remained the same.
F. Ovist’s Administrative Appeal
Ovist appealed Unum’s decision in a letter dated July 4,
2015. Unum defined the “medical question” on appeal as whether
“the records support functional loss and/or [restrictions and
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limitations] due to physical medical condition/symptoms that are
verifiable using tests, procedures or clinical examinations as of
[February 17, 2015] forward[.]”
Ovist submitted additional information for review on
appeal—office notes from a gastrointestinal specialist from May
2013; office notes from Dr. Hoffman from January to July 2015;
records and diagnostic test results from primary care physician
Dr. Dube and cardiologist Dr. Potts from January and February 2015;
and records and lab reports from Dr. Klimas from February and March
2015. Ovist also provided Unum with the results of a
Cardiopulmonary Exercise Test (“CPET”) conducted by exercise
physiologist Jeffrey Cournoyer on September 24-25, 2015. The CPET
is designed “to determine functional capacity and assess the
recovery response to a standardized physical stressor.”7
In his report, Cournoyer explained that the CPET
consisted of two identical tests that were administered on
consecutive days, in order to “establish changes in work function
capacity.” Cournoyer noted that Ovist “demonstrated maximal
7 According to Massachusetts General Hospital, “[t]he primary
purpose of . . . [CPET] is to carefully assess how your lungs,
heart, blood vessels and muscles perform during an exercise
challenge. . . . CPET is used to define how conditions that affect
heart, lung, blood vessel or muscle function contribute to exercise
intolerance. Massachusetts General Hospital, Cardiopulmonary
Exercise Testing Lab, at https://www.massgeneral.org/medicine/pu
lmonary/treatments-and-services/cardiopulmonary-exercise-
testing.
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effort in some, but not all of the testing measures,” but he also
found “both tests to be of maximal nature.”
As for the test results, Cournoyer observed that Ovist’s
testing measures varied by roughly 6% between the two days,
suggesting that the results were not abnormal on either day. He
also found that Ovist’s metabolic responses indicated “a higher
probability of running out of energy” on the second day; her
“[b]reathing values showed more strain” on the second day; and her
“wattage at maximal effort” on both days was “pathologically low.”
Seemingly consistent with this, Cournoyer observed that Ovist left
the office fatigued on the first day of testing, but after the
second day of testing, Ovist’s “posture and walking gait suggested
a severely weakened state, and [Cournoyer] was not comfortable
with allowing her to leave in that condition.” The CPET also
included an element of cognitive testing. Cournoyer found that
Ovist “showed the most drastic changes” across the two days in her
“immediate and delayed recall of simple information” and in her
concentration.
Unum’s Angela Malan-Elzawahry reviewed Ovist’s file on
January 5, 2016. Malan-Elzawahry detailed the medical conditions
with which Ovist had been diagnosed or for which she had been
evaluated and/or treated, including infections, sinusitis, CFS,
fibromyalgia, wrist pain, ankle sprain, shingles, thyroid goiter,
chronic pain syndrome, opioid dependence, depression,
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cardiopulmonary conditions, left knee pain and related joint
issues, and mold exposure. She also described the results of
various laboratory or diagnostic tests administered to Ovist,
which she found to be unremarkable. According to Malan-Elzawahry,
tests for viral illnesses, which were repeatedly administered to
Ovist beginning in 2006, had not provided evidence of current
infection; a 2012 sleep study did not “identify sleep apnea at a
severity to be expected to cause the level of fatigue that [Ovist]
has reported”; and a 2015 cardiac evaluation did not show
“restrictions and limitations . . . related to a cardiopulmonary
condition[.]”
Malan-Elzawahry concluded that Ovist consistently
reported worsening pain and fatigue, but the “conditions
identified by testing, such as thyroid goiter, a joint effusion,
and anterior cardiac wall soft tissue attenuation [were] not
correlating with symptoms that are at a severity to limit [Ovist’s]
function,” nor were they “expected to generate the fatigue and
generalized pain symptoms reported by [Ovist].” Malan-Elzawahry
deferred to Unum’s medical consultant, Dr. Scott Norris, for
further, independent analysis of the appeal.
On January 21, 2016, Dr. Norris concluded that Ovist’s
functional limitations were “based on [Ovist’s] reported
[symptoms] and [were] not consistent with the minimal and
nonspecific findings documented on examinations or the diagnostic
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testing/imaging studies included in the file records.” He
elaborated on this conclusion, noting, for example, that “multiple
laboratory tests were negative for infections, metabolic,
immunologic, hematologic, inflammatory, or other verifiable causes
of [Ovist’s] reported fatigue”; Ovist’s “[r]ecords [did] not
catalogue examinations or testing consistent with cognitive
impairment related to physical conditions”; Ovist’s February 2015
cardiac tests were normal; and “although [Ovist] reported mold
exposure in her home, the records do not reveal evidence of
impairment related to mold.”
Finally, Dr. Norris expressed reservations about Ovist’s
CPET results. He wrote that the September 2015 CPET was not “time-
relevant regarding [Ovist’s] functional capacity as of February
2015,” the date when Unum closed Ovist’s claim. He also indicated
that Ovist did not “exhibit maximal effort” at certain points of
the CPET, meaning that “a true . . . maximal aerobic capacity[]
was not measured.”
Unum denied Ovist’s appeal in a letter dated January 27,
2016, concluding that the SRS limitation applied to Ovist’s claim.
In the letter, Unum repeated Dr. Norris’s conclusion that her
reported impairing symptoms and her functional loss were
“inconsistent with and/or not supported” by clinical examinations,
diagnostic findings, or other objectively verifiable evidence in
her file. Unum listed examples: there was no “correlation between
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. . . [the] environmental mold in [Ovist’s] home [and] the severe
illness and functional impairment being reported”; Ovist’s
infectious disease titers8 were “consistent with a past history of
infection with no evidence of recurrent infection”; Ovist’s
temperature readings were normal; “the cardiology work up was
normal with no findings . . . consistent with [orthostatic
hypotension]”; “[t]he 2011 sleep study was negative for
obstructive sleep apnea”; and “[t]he records do not document
cognitive impairment on exam,” though Ovist’s “significant anxiety
and depression can increase her perception of poor concentration
and/or cognitive dysfunction.”
Unum further noted that Ovist’s CPET was not time-
relevant, and “Ovist did not exhibit full effort on all tests.”
Unum asserted that “[r]egardless of [Cournoyer’s] findings” from
the CPET, Ovist’s “functional limitation is based primarily on
self-reported pain and fatigue.”
Unum then concluded:
We do not refute [] your client’s perceived
physical and/or functional limitations.
However, we determined that any and all loss
of function is based on disability due to
mental illness and based primarily on self-
reported symptoms. For all the reasons
8 “Antibody titer is a laboratory test that measures the level
of antibodies in a blood sample,” and it is used to identify, among
other things, if a patient has “had a recent or past
infection . . . .” University of California San Francisco
Health, Antibody titer blood test, at https://www.ucsfhealth.org
/medical-tests/antibody-titer-blood-test.
- 23 -
stated, we determined that no further benefits
are payable under the policy’s [SRS
limitation].
G. Procedural History
On August 2, 2017, following the adverse determination
on her administrative appeal, Ovist initiated an ERISA action in
the U.S. District Court for the District of Massachusetts, alleging
that Unum unlawfully terminated her benefits. On August 30, 2019,
the parties filed cross-motions for summary judgment. A magistrate
judge issued a Report and Recommendation on February 24, 2020,
recommending that the district court grant Unum’s motion and deny
Ovist’s motion.
In the Report and Recommendation, the magistrate judge
first determined that Ovist, as the claimant, bears the burden to
prove that the SRS limitation does not apply to her claim. Then,
he found that Unum acted reasonably, under the terms of the Plan
and this circuit’s precedent, when it terminated Ovist’s benefits
under the SRS limitation based on a finding that Ovist’s impairing
symptoms, such as pain and fatigue, were based on her self-
reporting, as opposed to objectively verifiable diagnostic or
other tests. The magistrate judge relied, in particular, on case
law from this court establishing that it is unreasonable for an
insurer to require a claimant to provide objective evidence of
diagnoses that do not lend themselves to objective verification,
- 24 -
but an insurer can reasonably require objective evidence of a
claimant’s resulting functional limitations.
In March 2020, Ovist filed an objection to the Report
and Recommendation, and Unum filed a reply. The district court
adopted the Report and Recommendation in full on March 27, 2020.
This timely appeal followed. We affirm the district court’s order.
II. Standard of Review
We review the district court’s grant of summary judgment
de novo. Arruda v. Zurich Am. Ins. Co., 951 F.3d 12, 21 (1st Cir.
2020). When the underlying plan affords the insurer discretion to
determine eligibility for benefits, “[a] federal court reviews an
insurer’s termination decision ‘under a deferential arbitrary and
capricious standard . . . .” Cook v. Liberty Life Assur. Co. of
Bos., 320 F.3d 11, 18 (1st Cir. 2003) (quoting Pari-Fasano v. ITT
Hartford Life & Acc. Ins. Co., 230 F.3d 415, 418 (1st Cir. 2000)).
Here, the parties do not dispute that the Plan grants
discretionary authority to Unum. The Plan expressly “delegates to
Unum and its affiliate Unum Group discretionary authority to make
benefit determinations under the Plan,” including “determining
eligibility for benefits and the amount of any benefits, resolving
factual disputes, and interpreting and enforcing the provisions of
the Plan.” Accordingly, we will review Unum’s benefit decision
under the arbitrary and capricious standard, as the district court
did.
- 25 -
Under this standard, “we need not decide what is the
best reading of the words in the insurance policy.” Stamp v.
Metro. Life Ins. Co., 531 F.3d 84, 94 (1st Cir. 2008). We will
uphold the plan administrator’s benefit decision if it “is
reasonable and supported by substantial evidence on the record as
a whole.”9 McDonough v. Aetna Life Ins. Co., 783 F.3d 374, 379
(1st Cir. 2015) (citing Colby v. Union Sec. Ins. Co. & Mgmt. Co.
for Merrimack Anesthesia Assocs. LTD Plan, 705 F.3d 58, 61 (1st
Cir.2013)). “‘Substantial evidence’ is ‘evidence reasonably
sufficient to support a conclusion.’” Arruda, 951 F.3d at 21
(quoting Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184
(1st Cir. 1998)). Importantly, a conclusion can still be supported
by substantial evidence if contrary evidence exists. See Boardman
v. Prudential Ins. Co. of Am., 337 F.3d 9, 15 (1st Cir. 2003). In
short, we must uphold Unum’s determination unless it was
“unreasonable in light of the information available” to Unum.
Pari-Fasano, 230 F.3d at 419.
9 In ERISA cases in which the plan administrator has
discretion to make benefits determinations, we have variously
described the standard of review as review for “abuse of
discretion,” “arbitrariness and capriciousness,” and “substantial
evidence.” These terms are interchangeable in this context. See,
e.g., McDonough, 783 F.3d at 379 (“A court that undertakes abuse
of discretion review in an ERISA case must determine whether the
claims administrator’s decision is arbitrary and capricious or,
looked at from another angle, whether that decision is reasonable
and supported by substantial evidence on the record as a whole.”).
- 26 -
III. Analysis
Unum approved Ovist’s long-term disability claim in 2011
due to her symptoms related to CFS. In its initial determination
letter, Unum notified Ovist that her benefit payments would cease
after 24 months under the SRS limitation, which applies, in
pertinent part, to disabilities “based primarily on self-reported
symptoms,” including “headaches, pain, fatigue, . . . and loss of
energy.” Roughly 43 months later, in its final adverse benefit
determination letter, Unum maintained that the SRS limitation
applied to her claim because Ovist’s functional limitations were
supported by her reports of pain and fatigue, rather than clinical
examinations, diagnostic findings, or other objectively verifiable
evidence.
Ovist primarily challenges Unum’s interpretation and
application of the SRS limitation as follows. She argues that it
was unreasonable for Unum to require objective evidence of her
functional loss after concluding that she was unable to work. In
the alternative, she claims that she did provide the requested
evidence—her CPET results—and Unum rejected the results “on the
flimsiest of grounds.” Next, Ovist contends that the Seventh
Circuit Court of Appeals’ interpretation of a provision almost
identical to the SRS limitation, in Weitzenkamp, should control,
- 27 -
and the SRS limitation does not apply to her claim under the
holding in Weitzenkamp. We consider each challenge in turn.10
A. Unum’s Objective Evidence Requirement is Reasonable
To begin, Ovist contends that it was unreasonable for
Unum to require objective proof of her functional limitations after
conclusively determining that she was unable to work. This
argument fails under settled precedent within this circuit, which
we revisit below.
We have repeatedly held that it is unreasonable for an
insurer to require objective evidence in support of diagnoses,
like fibromyalgia and CFS, which are not subject to objective
verification. See Denmark v. Liberty Life Assur. Co. Of Bos., 481
F.3d 16, 37 (1st Cir. 2007) (explaining that it is unreasonable
for an insurer “to require objective evidence to support a
diagnosis of a condition that is not subject to verification
through laboratory testing[,]” and identifying fibromyalgia as one
such condition), vacated on other grounds, 566 F.3d 1 (1st Cir.
2009); Cook, 320 F.3d at 21-22 (finding it unreasonable for the
Ovist also challenges the district court’s holding that she
10
bears the burden to prove that the SRS limitation does not apply
to her claim, arguing instead that the burden of proof lies with
Unum. We need not decide this issue because it will not affect
the outcome of this case. Under the applicable standard of review,
we must determine whether Unum’s decision is “reasonable and
supported by substantial evidence.” McDonough, 783 F.3d at 379
(citing Colby, 705 F.3d at 61). As discussed below, Unum’s
decision passes muster under this standard, regardless of where we
place the burden of proof.
- 28 -
insurer to expect the claimant to provide “convincing ‘clinical
objective’ evidence that she was suffering from CFS” because there
are no accepted laboratory tests associated with the condition).
In Boardman v. Prudential Insurance Company of America,
however, we drew a distinction between requiring objective
evidence of conditions that do not lend themselves to objective
verification and requiring objective evidence of the functional
limitations resulting from a claimant’s conditions. 337 F.3d at
16-17 & n.5. We held that the latter is permissible.
The claimant in Boardman presented varying diagnoses of
conditions that are associated with pain and fatigue, including
CFS and myalgias. Id. at 12-14 & n.4. She was granted long-term
disability benefits upon showing that “due to her illness, she was
unable to perform the duties of her job . . . .” Id. at 11. In
order to remain eligible for benefits after the first 24 months of
payments, the claimant needed to show “that she was disabled from
duties of ‘any job for which [she was] reasonably fitted . . . .’”
Id. at 13. Though the plan administrator, Prudential, “was willing
to accept that [the claimant] suffered from the illnesses she
reported to her doctors[,]” it terminated the claimant’s benefits,
in pertinent part, because her file did not indicate “any
limitations or restrictions, based on objective findings, that
would preclude [her] from performing any occupation for which she
is suited.” Id. at 15, 16 n.5. We affirmed the district court’s
- 29 -
grant of summary judgment to Prudential, reasoning that, “while
the diagnoses of [CFS] and fibromyalgia may not lend themselves to
objective clinical findings, the physical limitations imposed by
the symptoms of such illnesses lend themselves to objective
analysis.” Id. at 16 n.5, 17.
We have since repeatedly invoked this principle and
Boardman’s diagnosis-disabling symptom distinction when reviewing
plan administrators’ benefit determinations. See Cusson v.
Liberty Life Assur. Co. of Bos., 592 F.3d 215, 227 (1st Cir. 2010)
(observing that the plan administrator did not “question the
diagnosis of fibromyalgia,” but “instead . . . questioned the
effect of the disease on [the claimant’s] ability to work . . . .
Because it is permissible to require documented, objective
evidence of disability, it was not inappropriate for [the plan
administrator] to rely on the lack of such documented evidence, or
on the footage that contradicted [the claimant’s] reports of
limitations, in making their recommendations” that the plaintiff
was able to work and thus not disabled under the terms of the
plan), abrogated on other grounds by Montanile v. Bd. of Trustees
of Nat. Elevator Indus. Health Benefit Plan, 577 U.S. 136 (2016);
Denmark, 481 F.3d at 37 (holding that the plan administrator acted
“within the parameters defined in Boardman” when it required the
claimant, who was diagnosed with fibromyalgia, to “provide
objective evidence of functional limitations or restrictions that
- 30 -
would prevent her from working” in order to qualify for long-term
disability benefits). Here, we endorse our holding in Boardman
once again and conclude that it was reasonable for Unum to require
objective proof of Ovist’s functional loss.11
Ovist attempts to escape this outcome by emphasizing
that, prior to imposing this evidentiary requirement, Unum
repeatedly found that Ovist was unable to work and did not harbor
any suspicions that Ovist was falsifying her functional
limitations. This argument is misplaced, as it constitutes an
objection to the design of the Plan—over which the ”employer ha[s]
large leeway”—rather than a viable challenge to the reasonableness
11We do acknowledge, as the district court did, that Unum’s
claim log and correspondence with Ovist also intermittently
focused on the absence of objective evidence supporting her
diagnoses. For example, in February and April 2015 letters
notifying Ovist that her benefits would be terminated under the
SRS limitation, Unum stated that her functional limitations were
associated with fibromyalgia and CFS, two conditions that “were
considered self-reported” since they could not be confirmed by
“clinical signs” or “diagnostic test findings.” Relatedly, when
Unum sought guidance from legal counsel on Ovist’s claim, its
question turned on Ovist’s diagnosis, as opposed to her functional
limitations. Specifically, Unum asked counsel if it was legally
permissible to apply the SRS limitation to a diagnosis of
fibromyalgia. While these examples show an inconsistency in Unum’s
handling of Ovist’s claim, they are peripheral to our analysis on
appeal. This court’s analysis centers on Unum’s final adverse
benefit determination. See Terry v. Bayer Corp., 145 F.3d 28, 35
(1st Cir. 1998) (stating that the court “must focus, as in the
usual case, on the determination of the final decision-maker” when
reviewing an appeal of the plan administrator’s decision to
terminate benefits). And in this case, Unum’s medical question on
appeal, subsequent internal analysis, and denial of Unum’s appeal
all primarily centered on the insufficient objective evidence of
Ovist’s functional limitations.
- 31 -
of Unum’s benefit determination. Black & Decker Disability Plan
v. Nord, 538 U.S. 822, 833 (2003).
Indeed, under the terms of the Plan, individuals are
considered “disabled” and eligible for benefits if they are unable
to complete the “material and substantial duties” of their jobs
due to their illnesses. The SRS limitation confines the benefit
period to 24 months for the same, disabled individuals if they
have, in pertinent part, “disabilities based primarily on self-
reported symptoms.” Unum simply followed the Plan’s blueprint,
then, by first determining that Ovist was unable to work (and
thereby granting her benefits), and then reasonably requiring
objective proof of her functional loss in order to determine if
her disabilities were “based primarily on self-reported symptoms,”
and thus subject to the associated benefit limitation. It follows
that Ovist takes issue with her employer’s decision to establish
a different evidentiary hurdle (centered on objective evidence)
for claimants seeking to obtain benefits over the long term, as
opposed to claimants seeking benefits for only 24 months or less.
This objection to the Plan’s design does not alter our analysis
under Boardman.
B. Unum’s Denial of Long-term Disability Benefits on the
Information Before it was Reasonable
Ovist next argues that Unum reached its benefit
determination by unreasonably rejecting her CPET results, which,
- 32 -
according to Ovist, provide objective proof of her functional
limitations. Under the arbitrary and capricious standard, our
task is not to re-weigh the evidence in the record. Instead, we
must uphold the plan administrator’s decision if it “is reasonable
and supported by substantial evidence on the record as a whole.”
McDonough, 783 F.3d at 379 (citing Colby, 705 F.3d at 61). This
also means, however, that “[p]lan administrators . . . may not
arbitrarily refuse to credit a claimant’s reliable evidence[.]”
Black & Decker Disability Plan, 538 U.S. at 834. Upon reviewing
the record, we find that Unum’s conclusion that Ovist’s functional
limitations were “inconsistent with and/or not supported based on
clinical exam and/or diagnostic findings, procedures, and/or other
clinical findings” is both supported by substantial evidence and
consistent with a reasonable review of the record as a whole,
including the CPET results.
To begin, Unum reviewed Ovist’s file on at least five
separate occasions, allowing Ovist to supplement the file with
medical providers’ opinions and other evidence in the interim.
Unum also followed up with Ovist’s physicians in order to obtain
updates on her conditions and the basis of their opinions.
Further, Unum alerted Ovist to the absence of objective evidence
of her functional limitations; for example, in a February 2015
adverse benefit determination letter, Unum stated that Ovist’s
“physical examinations remain unremarkable,” and “[t]here had been
- 33 -
no diagnostic testing performed to explain the etiology of
[Ovist’s] complaints.” Still, Unum’s medical consultants
repeatedly found that there were no diagnostic findings or clinical
examinations explaining Ovist’s consistent reports of pain and
fatigue and her associated functional loss.
Dr. Broadwell was the first consultant to make this
observation, in 2011. In 2013, Dr. Smith concluded that Ovist was
unable to work based on her consistent complaints of pain and
fatigue, her treatment history, Dr. Hoffman’s report of her
narcotic dependence, observations from Unum’s field visit, and her
2012 SSDI award. Dr. Smith did not base his conclusion, then, on
any clinical exams, diagnostic findings, or objectively verifiable
physical exams evidencing Ovist’s functional limitations. Next,
in 2014, Nurse Curran determined that Ovist’s functional
limitations “were supported based on the consistency of [her]
complaints,” but “there was no physical basis to explain the
etiology of [those] complaints.”
Only one of Ovist’s doctors, Dr. Klimas, claimed that
Ovist’s condition and/or symptoms were “confirmed by physical
examination . . . and laboratory data” showing “impaired immune
function . . . and latent virus reactivations.” Two of Unum’s
medical consultants considered and rejected Dr. Klimas’s claim.
Dr. Bress noted that Dr. Klimas’s tests for immune function and
viruses were not “standard medical testing” and/or were unrelated
- 34 -
to Ovist’s symptoms. Dr. Hauser also asserted that Dr. Klimas’s
tests for viral infection provided evidence of past, but not
ongoing, infections.12 Dr. Hauser accordingly concluded that
Ovist’s impairing symptoms were not “attributable to (either
directly or indirectly) viral infection, immune deficiency, or any
other verifiable (through physical examination or diagnostic
testing) medical condition,” and Dr. Bress concurred.
Unum’s reviewers also considered other diagnostic and
clinical exam findings and objectively verifiable evidence in
Unum’s file and found that they were normal and/or could not
explain the severity of Ovist’s disabling symptoms and her
resulting functional limitations. Malan-Elzawahry found that
Ovist’s 2012 sleep study and 2015 cardiac tests did not identify
conditions or symptoms that could explain Ovist’s functional
limitations. Dr. Norris determined that Ovist’s laboratory tests
were negative for “infections, metabolic, hematologic,
inflammatory, or other verifiable causes” of Ovist’s fatigue. He
also noted that Ovist’s cardiac tests were normal, and no tests or
examinations in Ovist’s file were consistent with “cognitive
impairment related to physical conditions.” Finally, Dr. Bress,
Malan-Elzawahry, and Dr. Norris reviewed Ovist’s fungal report and
Consistent with this finding, when reviewing Ovist’s
12
administrative appeal, Unum’s Malan-Elzawahry also found that
Ovist’s tests for viral illnesses, dating back to 2006, did not
provide evidence of current infections.
- 35 -
the mold analysis of her home and agreed that there was no known
association between mold or fungus exposure and Ovist’s disabling
symptoms.
Ovist does not dispute Unum’s assessment of the evidence
above. Rather, Ovist points to her September 2015 CPET results as
the singular source of objective proof of her functional
limitations, and she argues that Unum rejected the CPET results on
“the flimsiest of grounds.” We disagree.
Unum’s medical consultant, Dr. Norris, reviewed the CPET
results and concluded that the test was not time-relevant and did
not reflect Ovist’s maximal effort. Dr. Norris’s assessment of
Ovist’s maximal effort was, at least in part, supported by
Cournoyer’s own statement that Ovist “demonstrated maximal effort
in some, but not all of the testing measures.” On the other side
of the ledger, Cournoyer opined that the tests on both days were
“of maximal nature.” His report lists respiratory, metabolic, and
other markers showing that Ovist experienced fatigue and cognitive
impairment following physical activity on both days. And Ovist
argues that the seven-month gap between the February 2015
termination of her claim and the administration of the CPET is not
meaningful because there is no evidence that her symptoms changed
during that period.
- 36 -
When considering the CPET,13 Unum credited Dr. Norris’s
opinion over Cournoyer’s findings. We have “treated a nonexamining
physician’s review of a claimant’s file as reliable medical
evidence on several occasions,” Gannon v. Metro. Life Ins. Co.,
360 F.3d 211, 214 (1st Cir. 2004) (citing cases), and we find no
basis on the record to conclude that Dr. Norris’s opinion is
unreliable. Thus, Dr. Norris’s critique of the CPET provides a
reasonable basis for Unum to find that the CPET results alone did
not compensate for the considerable absence in the record of
objective evidence of Ovist’s functional loss, and therefore to
conclude that Ovist’s “functional limitation was based primarily
on self-reported pain and fatigue.” This conclusion holds, even
though the CPET arguably provides some objective proof of Ovist’s
functional loss. See Boardman, 337 F.3d at 15 (“The existence of
contrary evidence does not necessarily render [the claim
administrator’s] decision arbitrary and capricious.”).
Accordingly, we conclude that, notwithstanding Ovist’s CPET
results, Unum’s decision to apply the SRS limitation to Ovist’s
13 We use the term ‘considering’ instead of ‘rejecting’
because it is not clear, based on Unum’s final adverse benefit
determination letter, that Unum discredited the CPET results
entirely. Rather, Unum noted that the results were not time-
relevant, and that Ovist did not exhibit full effort on all of the
tests. Then, Unum concluded that, “[r]egardless of [Cournoyer’s]
findings[,]” Ovist’s “functional limitation is based primarily[,]”
though not necessarily wholly, “on self-reported pain and
fatigue.”
- 37 -
claim was reasonable and rests on substantial evidence in the
record as a whole.14
C. The Seventh Circuit Weitzenkamp Test is in Conflict With First
Circuit Law
Having found that Unum’s decision to terminate Ovist’s
benefits was reasonable under this circuit’s precedent, we are
unconvinced by Ovist’s argument that Unum’s application of the SRS
limitation is improper because this court should adopt the
standards under Weitzenkamp, a Seventh Circuit Court of Appeals
decision. In Weitzenkamp, the court interpreted an SRS limitation
almost identical to the one at bar. Under the SRS limitation in
Weitzenkamp, benefits ceased after 24 months for individuals with
“disabilities, due to sickness or injury, which are primarily based
on self-reported symptoms, and disabilities due to mental illness,
alcoholism or drug abuse.” 661 F.3d at 326-27. Self-reported
symptoms are also defined identically in the plan in Weitzenkamp
and the Plan in this case. Id. at 327.
14 Ovist also argues that Unum unreasonably applied the SRS
limitation to her claim based on her mental illness. Since the
SRS limitation, by its terms, applies to “any combination” of
“disabilities due to mental illness and disabilities based
primarily on self-reported symptoms,” Unum can reasonably apply
the limitation when only one of the categories of disabilities is
present. Since we already determined that Unum reasonably applied
the limitation after completing more than 24 months of payments
for the second category of “disabilities based primarily on self-
reported symptoms,” we need not consider whether it was also
reasonable to apply the limitation under the first category of
disabilities “due to mental illness.”
- 38 -
The Seventh Circuit Court of Appeals concluded that the
SRS limitation “applies to disabling illnesses or injuries that
are diagnosed primarily based on self-reported symptoms rather
than to all illnesses or injuries for which disabling symptoms are
self-reported.” Id. at 330 (emphasis in original). The court
noted that, if the SRS limitation applied to the latter category
of conditions, it would limit benefits for individuals with most
any disease with symptoms such as pain, weakness, and fatigue—
symptoms which “are difficult if not impossible to verify using
objective medical evidence.” Id. The court then determined that
the plaintiff’s diagnosis of fibromyalgia was supported by
objective evidence in the form of a positive tender point exam,
and thus the SRS limitation did not apply. Id. at 331. Ovist
posits that the same outcome should follow here, as she was
positive for at least 11 of 18 tender points when examined, and
this circuit has determined that the tender or trigger points
provide “the clinical findings necessary for a diagnosis of
fibromyalgia under established medical guidelines[.]” Johnson v.
Astrue, 597 F.3d 409, 412 (1st Cir. 2009).
Respectfully, we decline to follow the reasoning and
holding in Weitzenkamp, as they are in tension with this circuit’s
long-held diagnosis-disabling symptom distinction as articulated
in Boardman, and the underlying principle that “the physical
limitations imposed by the symptoms of such illnesses [as CFS and
- 39 -
fibromyalgia],” including pain and fatigue, do “lend themselves to
objective analysis.” Boardman, 337 F.3d at 16 n.4. Accordingly,
even if we accept that Ovist tested positive for fibromyalgia based
on tender points, we still conclude that it was reasonable for
Unum to require that Ovist provide objective evidence of her
functional limitations, and to apply the SRS limitation based on
the relative absence of this evidence.
We also find Unum’s objective evidence requirement to be
reasonable (contrary to the conclusion in Weitzenkamp) for at least
two reasons. First, it merely calls for the claimant to establish
a causal connection between his or her disability and his or her
alleged functional limitation(s) before being awarded long-term
disability benefits beyond 24 months. Far from being arbitrary or
capricious, this type of inquiry into causation is often necessary
for a claim administrator to ensure that benefits are paid as
intended by the operative policy. See, e.g., Arruda, 951 F.3d at
21-22 (finding that the claimant was not eligible for death
benefits under an insurance policy issued for accidental death or
injury, since substantial evidence in the record supported the
conclusion that the death was caused or contributed to by the
decedent’s pre-existing health conditions). In this case, the
causal connection must be established to confirm that Ovist is
unable to work due to her recognized, diagnosed medical conditions,
as opposed to her unverifiable perceptions.
- 40 -
Unum’s objective evidence requirement is also reasonable
because it furthers the purpose of the SRS limitation, as defined
by Unum. Under the terms of the Plan, Unum “ha[s] the
discretionary authority to construe the [P]lan”; thus, Unum also
“ha[s] the discretion to determine the intended meaning of the
[P]lan’s terms.” Stamp, 531 F.3d at 93-94 (internal quotation
omitted). And according to Unum, the purpose of the SRS limitation
is “to address conditions” that manifest themselves in a manner
that renders the resulting functional limitations “inherently
difficult to determine.” It should not be deemed an abuse of
discretion, then, for Unum to further this goal by requiring
objective evidence of Ovist’s functional limitations, as such
evidence is a more reliable indicator of the severity of Ovist’s
limitations than her self-reporting of pain and fatigue. Unum’s
requirement is particularly reasonable here, where Ovist had the
opportunity to take the CPET, a test that can provide objective
evidence of her functional limitations, but she failed to do so in
a timely manner. Ultimately, we do not adopt Weitzenkamp, and
instead adhere to this circuit’s law and conclude that Unum’s
interpretation of the SRS limitation is not arbitrary or
capricious.
IV. Conclusion
For the reasons stated above, the judgment of the
district court is AFFIRMED.
- 41 -