Maher v. Massachusetts General Hospital Long Term Disability Plan

United States Court of Appeals
For the First Circuit

No. 10-1321

DEBORAH MAHER,

Plaintiff, Appellant,

v.

MASSACHUSETTS GENERAL HOSPITAL LONG TERM DISABILITY PLAN,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Lipez, and Howard,

Circuit Judges.

Robert J. Rosati with whom ERISA Law Group was on brief for
appellant.
Laurie F. Rubin with whom Prince, Lobel, Glovsky & Tye LLP was
on brief for appellee.

December 7, 2011
 BOUDIN, Circuit Judge. Deborah Maher, a registered

nurse, began work at Massachusetts General Hospital ("MGH"), in

August 2001. Maher stopped working in November 2001 and, in

February 2002, began receiving disability benefits through MGH's

long-term disability plan due to chronic abdominal pain and related

symptoms.1 Her physicians--although never "entirely clear" on the

cause--attributed her symptoms to chronic pancreatitis, chronic

pain syndrome or fibromyalgia. Over time, joint pain added to her

woes, and Maher received "impressive amounts of narcotics" to

manage her pain, which caused some negative side effects.

In February 2007, Liberty Life Assurance Company of

Boston ("Liberty"), the plan's claims processor, terminated Maher's

benefits. After a June 2007 letter misquoted plan language,

Liberty concluded in a corrected September 2007 letter that Maher

was no longer "totally disabled," defined in Section 2.10 of the

"The Massachusetts General Hospital Long Term Disability Plan" (the

"primary plan document") as

such complete incapacity, resulting from a
medically determinable physical or mental
impairment, as prevents the Participant from
performing any and every duty of any
occupation or employment, for which he is
reasonably qualified by education, training or
experience.

1
We refer to the MGH Long-Term Disability Plan, technically
the defendant in this case, as the "MGH Plan." We refer to the
plan documents and terms as "the plan."

-2-
 This determination was based in part on medical

assessments more fully described below but also on covert

surveillance video showing Maher driving, walking, jogging, bending

over, flying a kite, and lifting her three-year-old child. The

most comprehensive assessment was by Dr. Robert Millstein, a

medical consultant at Liberty, who based his judgment on review of

Maher's medical file. He confirmed diagnoses by Maher's personal

physicians of her fibromyalgia, osteoarthritis, and psoriasis but

determined that none prevented Maher from working.

Maher pursued administrative appeals with Liberty and

ultimately with Partners HealthCare System, Inc. ("Partners"), the

plan's administrator. She submitted supporting materials, most

notably March 2007 statements from her personal physician, Dr.

Elizabeth Cuevas, and Dr. Wolfram Goessling, her

gastroenterologist. Dr. Cuevas represented that Maher, despite her

pain medications, "remains in significant disability, both from her

chronic pain and from the side effects the pain medication cause,

such as somnolence. She is unable to reliably perform duties

because her pain can become so severe so quickly." And Dr.

Goessling stated that "I do not see any way that my patient would

be able to sit or stand for prolonged period[s] of time let alone

do physically or intellectually demanding work."

During the ensuing appeals, new doctors independently

reviewed Maher's files. Dr. Herbert Malinoff, conducting the

-3-
independent assessment on Maher's appeal within Liberty, consulted

with Dr. Cuevas and Dr. Goessling, but ultimately found Maher's

symptoms "far out of proportion to any abnormality identified

physically"; Dr. Dean Hashimoto, conducting the independent

assessment on Maher's final appeal to Partners, agreed disability

had not been established. Broadly speaking, both, along with Dr.

Millstein, believed that the physical data did not explain the

degree of pain or other symptoms claimed by Maher and found she had

provided insufficient other evidence of completely debilitating

pain.

Partners formally denied Maher's last appeal in January

2008. Maher sought review of her benefits termination in federal

court under section 502 of the Employee Retirement Income Security

Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B) (2006). The district

court, reviewing the plan administrator's decision under a

deferential "arbitrary and capricious" standard, entered summary

judgment for the MGH Plan and upheld the termination of benefits.

Maher v. Mass. Gen. Hosp. Long Term Disability Plan, No. 08-10460

(D. Mass. Fed. 23, 2010) (unpublished order). Maher has now

appealed, challenging both the standard applied by the district

court and the substantive decision.

The standard of review presents an issue of law which we

review de novo, Smart v. Gillette Co. Long-Term Disability Plan, 70

F.3d 173, 178 (1st Cir. 1995). The denial of benefits is itself

-4-
subject to de novo review (albeit ordinarily on the administrative

record) "unless the benefit plan gives the administrator or

fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the plan," Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989), in which event the

court applies a deferential "arbitrary and capricious" or "abuse of

discretion" standard, Cusson v. Liberty Life Assurance Co., 592

F.3d 215, 224 (1st Cir. 2010).

Here, section 6.1 of the primary plan document

unequivocally reserves to "the Hospital" authority "to determine

eligibility for benefits, construe the terms and conditions of the

Plan, and resolve disputes as to the interpretation of the Plan

documents"; and it explicitly precludes review unless the

Hospital's action was "arbitrary and capricious or without rational

basis." The "Hospital" is defined only as "The General Hospital

Corporation" ("GHC"), which is a Massachusetts charitable

organization whose sole member is MGH, whose sole member, in turn,

is Partners.2

Maher's argument in favor of de novo review is that the

final decision in this case was made by Partners; no proper

delegation of authority to determine benefits was ever made to

2
"Member," in this context, is more or less the same as
controlling party. See 18A Am. Jur. 2d: Corporations § 633 (2011)
("[M]embers, while not usually denominated 'stockholders,' have an
interest in the corporate property similar to that of stockholders
in ordinary corporations.").

-5-
Partners; and therefore Partners' decision to deny benefits is not

protected by section 6.1's deferential standard of review. It is

clear enough that, absent a proper delegation, the MGH Plan could

not rely on section 6.1's standard to defend a denial by an

independent entity. See Terry v. Bayer Corp., 145 F.3d 28, 37-38

(1st Cir. 1998).

As it happens, GHC, MGH and Partners are in practice far

from independent. Partners is a framework entity embracing MGH and

Brigham--two of the major teaching hospitals in Boston--and

includes smaller nonprofit hospitals as well; the boards of

directors overlap; and Partners appears to operate in part as a

coordinating body that performs various functions for the member

hospitals including, at least so far as the MGH Plan is concerned,

administrator of the plan in question on behalf of "the Hospital."

We say "appears" because the MGH Plan has chosen to defend the case

as one of conventional delegation.

This choice of litigation strategy lends a certain air of

unreality to the situation. The affiliation may explain why some

aspects of the alleged delegation are not as clearly formalized as

one might expect. In the end, viewed as a conventional

delegation--the MGH Plan has not relied on affiliation or provided

detailed information about it--the treatment of Partners as a

proper inheritor of "the Hospital's" discretionary authority is

justified, but perhaps only by a modest margin.

-6-
 The double issue is whether the plan "expressly

provide[s] for procedures" for GHC to designate Partners as a

fiduciary with discretionary authority to administer the plan, 29

U.S.C. § 1105(c)(1); Terry, 145 F.3d at 36, and, if so, whether

this had occurred. The courts have not been overly demanding in

the search for express "procedures." Wallace v. Johnson & Johnson,

585 F.3d 11, 15 (1st Cir. 2009). The district court relied on

section 6.3 of the primary plan document, which provides:

The Hospital may employ agents, including but
not limited to, a Claims Processor,
accountants, attorneys or actuaries to perform
such services and duties in connection with
the administration of the Plan as it may
direct. . . . The Hospital shall be fully
protected in acting upon the advice of any
such agent, in whole or in part, and shall not
be liable for any act or omission of any such
agent, the Hospital's only duty being to use
reasonable care in the selection of any such
agent.

Maher argues that the focus of this language is primarily

on ancillary duties to aid GHC in carrying out its own

responsibilities. Nothing expressly identifies decisional

authority to determine benefits as a power that can be delegated.

If a separate identification were required, that might be the end

of any delegation claim, but under the case law it is enough that

the language can be taken to include that delegation. E.g.,

Pettaway v. Teachers Ins. & Annuity Assoc., 644 F.3d 427, 434-35

(D.C. Cir. 2011).

-7-
 Section 6.3 can be read quite broadly: the list of

agents GHC may employ is non-exhaustive, nothing limits the

services and duties GHC may direct its agents to perform, and the

attempt to relieve GHC of liability is consistent with an

allocation of responsibilities from one fiduciary to another. See

29 C.F.R. § 2509.75-8, FR-14. Lawyers are commonly charged with

fiduciary duties, and ERISA may in some circumstances treat

accountants and actuaries as fiduciaries as well, despite merely

providing "advice." See 29 C.F.R. § 2509.75-5, D-1.

Here, any uncertainty is resolved by looking to

associated documents including the trust agreement and the summary

plan description, 29 U.S.C. § 1024(b)(4), which we are entitled to

consult. Pettaway, 644 F.3d at 433-34. The summary plan

description clearly states that "Partners acts as the Plan

Administrator" of MGH's long-term disability plan and "has the

discretion to determine all matters relating to eligibility,

coverage and benefits under each Plan provided."3 And, the plan's

3
Maher argues that this document, titled "Partners HealthCare
System, Inc.: Health and Welfare Plan Document," is not a Summary
Plan Description for MGH's long-term disability plan because the
document lacks certain information and identifies the plan as an
insurance plan when it is in fact funded as a trust. But an MGH
Plan affidavit confirms that the document is the Summary Plan
Description, and the document itself describes Partners' role in
the administration of several benefits plans--MGH's plan among
them--and says that it, together with certain other materials,
"constitute[s] the summary plan description for each Plan."

-8-
trust agreement contemplates certain actions being undertaken by

GHC "or its delegate."

Thus the plan instruments not only make clear that the

plan authorized delegation of fiduciary responsibility to Partners,

but also that such delegation actually occurred. Compare

Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 584

(1st Cir. 1993)(documents taken together failed to delegate).

Given that delegation, the denial will be upheld only "if it is

reasoned and supported by substantial evidence." Gannon v. Metro.

Life Ins. Co., 360 F.3d 211, 213 (1st Cir. 2004). Maher has the

burden of proving her disability. Orndorf v. Paul Revere Life Ins.

Co., 404 F.3d 510, 518-19 (1st Cir.), cert. denied, 546 U.S. 937

(2005).

Turning then to the denial of benefits, it is common

ground that Maher suffers from significant medical afflictions and

uses narcotics to combat pain. The question is whether Maher's

chronic pain and/or narcotics use render her incapable of

performing the sedentary nursing jobs suggested by Liberty's

consultant in a "transferrable skills analysis" conducted during

the review of Maher's benefits; the jobs included full-time

sedentary work as a telephonic triage nurse, nurse case manager, or

utilization review nurse.

On Maher's side we have diagnoses of medical ailments

unchallenged by Partners and explicit statements, already quoted,

-9-
by her own doctors who treated her--one of whom assessed

"significant disability" and the other of whom said that she could

not do "physically or intellectually demanding work." These are,

of course, fairly summary assessments; but the last, if fully

credited and not contradicted by other evidence, might appear to

rule out even the less physically demanding nurse-related positions

suggested.

Yet these assessments of disability also depended on

Maher's self-reporting as to the effects of medication and, more

importantly, the severity of her symptoms. Maher has been

plagued--among other things--by pain, nausea, vomiting, and

diarrhea. She has seen a host of doctors, attended pain clinics,

been recurrently hospitalized, treated with high doses of

narcotics, and undergone pancreatic and biliary

sphincterotomies--surgical procedures designed to relieve

pancreatitis.4 So obviously she has serious symptoms; but the

question remains whether they are disabling, and this brings us to

the heart of the problem.

In some situations, the degree of pain or other

dysfunction corresponds with what doctors knowing of the malady

would expect or at least deem within range. Dr. Millstein clearly

4
Arguably Maher would not suffer such travails merely to
strengthen the credibility of a disability claim or be able to fool
so many doctors over so many years if there were little or no
serious pain. See Carradine v. Barnhart, 360 F.3d 751, 755 (7th
Cir. 2004).

-10-
thought that this was not true here--detecting some signs of

exaggeration and doctor shopping--and he concluded that any

negative impact of the narcotics would be alleviated by adaptation

to the dosages. He also relied on both the surveillance video and

a number of other separate pieces of evidence to which one might

attach more or less weight:

-a
September 2006 statement by Dr.
Cuevas, Maher's primary care physician,
stating that she had not placed restriction on
Maher for abdominal pain and was not aware of
restrictions from other doctors;

-a November 2006 record from Dr.
Anthony Reginato, a rheumatologist, indicating
that Maher denied chills, vomiting, and
abdominal pain, but also complained of having
such pain over the previous 10 days; and

-documentation that Maher had not seen
Dr. Wolfram Goessling, her gastroenterologist,
during 2006.

Dr. Malinoff, who conducted the first independent

assessment, found Maher's symptoms "far out of proportion to any

abnormality identified physically," and again relied on Liberty's

video surveillance. Dr. Malinoff also consulted with Dr. Cuevas

and Dr. Goessling. Dr. Malinoff highlighted Dr. Cuevas' agreement

that "there is no identifiable medical/internal medicine issue

which would prevent this woman from carrying out sedentary or light

labor on a full time basis," and emphasized his disagreement with

Dr. Goessling's focus on Maher's self-reported symptoms.

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 Dr. Hashimoto, conducting the last independent

assessment, discredited Maher's pain based on her failure to submit

supporting evidence of disability from her treatment in pain

clinics; emphasized Dr. Cuevas' statement to Dr. Malinoff about

Maher's physicians' inability to pinpoint an anatomic cause of her

symptoms; discredited Dr. Goessling's opinion due to his failure to

treat Maher in 2006; and relied on the video surveillance of Maher.

He also said that there was little evidence of either evaluation or

treatment of her claims of impairment based on narcotics use.

This is a fairly impressive set of objections but there

are two aspects that concern us and, taken together, warrant remand

for further consideration.5 The first, and most important, rests

on the fact that at every stage of Maher's administrative appeal,

Liberty and Partners' reviewing doctors emphasized the

inconsistency between her self-reported limitations and the

surveillance video. It is not apparent to us that any such

inconsistency exists.

Maher reported that her activity varied based on the

extent of her pain, nausea, and opportunity to pre-medicate for

activities, but that she generally spent most of her days in bed.

5
See Buffonge v. Prudential Ins. Co., 426 F.3d 20, 31-32 (1st
Cir. 2005); Majeski v. Met. Life Ins. Co., 590 F.3d 478, 484 (7th
Cir. 2009); Leger v. Tribune Co. Long Term Disability Benefit Plan,
557 F.3d 823, 835 (7th Cir. 2009).

-12-
In over 90 hours of surveillance, the most damning evidence the MGH

Plan can identify is 15 minutes during which Maher carried a bucket

or flower pot and 30 minutes during which Maher played with her

three-year-old son in the park. On 10 of the 19 days on which

surveillance video is available, Maher engaged in no activity. On

other days, Maher was shown sitting or standing outside her house

with her husband for about 20 minutes.

Thus most of the surveillance, far from contradicting

Maher's disability, seems to confirm her lifestyle as generally

housebound with occasional, limited activity. For the brief

periods of slightly more vigorous activity, Maher may have pre-

medicated or may have simply been having a "good day"--either of

which would be consistent with her reported limitations. Of

course, she may have been housebound by choice--that is the

critical question. But this is far from a situation in which a

video conclusively disproves the disability claim.6

This court earlier upheld a termination of benefits where

claimant's credibility was called into question by sporadic

surveillance capturing limited activity. Cusson v. Liberty Life

6
E.g., Oldrich v. Director, Office of Workers Comp. Programs,
141 F.3d 1178 (9th Cir. 1998) (unpublished table op.)(claimant
alleged disability due to shoulder injury but was seen chopping
trees and participating in competitive swim meet); see also Tsoulas
v. Liberty Life Assurance Co., 454 F.3d 69 (1st Cir. 2006)
(claimant reported complete inability to walk or stand without cane
or wheelchair and never left house more than once per week, but
surveillance video showed claimant walking without cane, going the
mall, and running other errands).

-13-
Assurance Co., 592 F.3d 215, 228-30 (1st Cir. 2010). But there the

videos showed activities that specifically contradicted claims made

by the claimant as to how she spent her time and what actions she

could tolerate. Id. at 225. We cautioned in that case that weight

given to surveillance in these sorts of cases depends both on the

amount and nature of the activity observed. Id.

Apart from the video, the main objective fact relied on

by Partners was Maher's failure to provide supporting evidence of

disability from her pain clinics. But Maher explained her attempts

to obtain documentation from those clinics and offered both

releases to allow the MGH Plan to access the information and to

submit to examination by a doctor of the MGH Plan's choosing. It

also appears that two of the three pain clinics were MGH-affiliated

so the information ought to have been accessible.

In the end, the MGH Plan was entitled to be skeptical:

the claimant has a stake in the outcome; and the treating doctors

do not purport to explain the degree of pain claimed. But the

video evidence and failure to produce pain clinic information seem

overstated. We cannot say with assurance that the MGH Plan denied

Maher benefits to which she was entitled, but even according

deference we are also not confident that its analysis has fully

justified its decision.

The judgment of the district court is vacated and the

matter remanded to the district court so it may allow Partners to

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conduct such further review and provide such further explanation

and information as it sees fit, providing Maher a fair opportunity

to respond to any such supplementation of the administrative

record. We are not reinstating benefits but merely remanding to

the plan administrator for further consideration of the claim and

more adequate explanation, but we expect further proceedings by

Partners to proceed with expedition. Each party to bear its own

costs.

It is so ordered.

--Dissenting Opinion Follows--

-15-
 LIPEZ, Circuit Judge, dissenting. The majority correctly

identifies the "double issue" we face in determining the applicable

standard of review in this case: first, whether Massachusetts

General Hospital ("the Hospital" or "MGH") is expressly authorized

by the MGH Long Term Disability Plan ("the Plan") to delegate its

authority to determine benefits, and, second, whether MGH in fact

made such a delegation to the plan administrator, Partners

HealthCare System, Inc. ("Partners"). My colleagues answer "yes"

to each of those questions. In so concluding, however, they

disregard our precedent requiring a clear statement of the

authority to delegate, fail to respect the limits of the pertinent

Plan language, and uncritically accept Partners' declaration of

fiduciary authority despite that assertion's inconsistency with the

terms of the primary plan document.

In my view, the Plan does not give the Hospital authority

to delegate and, even if it did, Partners' assertion of its own

authority is insufficient evidence that a proper delegation in fact

occurred. Hence, because neither question may be answered

affirmatively, the de novo standard of review must be used to

evaluate the administrator's decision denying benefits to Maher.

Taking a fresh view of the record, I can only conclude that Maher's

symptoms render her incapable of sedentary work. I would thus

vacate the district court's judgment and remand for entry of

judgment in Maher's favor.

-16-
 I.

Maher challenged the termination of her benefits under

section 502 of the Employee Retirement Income Security Act

("ERISA"), 29 U.S.C. § 1132(a)(1)(B). ERISA does not prescribe a

standard of review for such actions. To fill this gap, the Supreme

Court has held that a denial of benefits challenged under

section 1132(a)(1)(B) should be reviewed de novo "unless the

benefit plan gives the administrator or fiduciary discretionary

authority to determine eligibility for benefits or to construe the

terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989). Where such authority is given, our review is more

deferential, id. at 111, and a benefits decision will be upheld

unless it is "arbitrary, capricious, or an abuse of discretion,"

Cusson v. Liberty Life Assurance Co. of Boston, 592 F.3d 215, 224

(1st Cir. 2010) (quoting Gannon v. Metro. Life Ins. Co., 360 F.3d

211, 213 (1st Cir. 2004)).

The standard of review inquiry must thus start with the

terms of the Plan, through which MGH provided Maher LTD benefits.

Article 6.1 of the Plan document states in full:

6.1. General. The processing of claims and
calculation of benefits shall be the sole
responsibility of the Claims Processor. The
Hospital shall have full discretionary
authority to administer the Plan, including
without limitation the authority to determine
eligibility for benefits, construe the terms
and conditions of the Plan, and resolve
disputes as to the interpretation of the Plan
documents. Any person having an interest

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 under the Plan m[a]y request a determination
by the Hospital with respect to any matter
affecting such person, and any such
determination of the Hospital will be final
and binding, and shall not be subject to de
novo review, or be modified, amended, or set
aside by any judicial or administrative
authority in the absence of clear and
convincing evidence that the Hospital's action
was arbitrary and capricious or without
rational basis.

The Plan document defines the "Hospital" to mean The General

Hospital Corporation, a Massachusetts charitable organization

whose sole member is MGH. Because the above provision grants the

Hospital "full discretionary authority to administer the Plan,"

including "the authority to determine eligibility for benefits

[and] construe the terms and conditions of the Plan," a benefits

decision by MGH would typically be reviewed under the deferential

"arbitrary and capricious" standard. Firestone, 489 U.S. at 115;

Cusson, 592 F.3d at 224.

The benefits decision at issue here was not, however,

made by MGH. Instead, it was made by Partners, the Plan's

administrator. To be sure, Partners and the Hospital are closely

related. Partners, a nonprofit corporation, coordinates a

healthcare system made up of a number of constituent medical

institutions, including MGH, Brigham and Women's Hospital, and

various other hospitals and medical organizations. However closely

bound together, though, there is no question that Partners and the

Hospital are legally distinct entities, and the Plan does not argue

-18-
that the discretionary authority conferred on the Hospital should

be imputed to Partners.7 Cf. Glotzer v. Metro. Life Ins. Co., 1 F.

App'x 740, 742 (9th Cir. 2001) (holding that, because successor

corporation inherited in full the rights and burdens of plan

administrator through purchase, discretion delegated to plan

administrator was imputed to successor).

Instead, the Plan contends that Partners validly

exercised discretionary authority that had been delegated to it by

the Hospital. ERISA provides that a named fiduciary may delegate

to others its responsibilities under a plan -- other than trustee

responsibilities -- where the plan expressly sets forth procedures

for doing so. 29 U.S.C. § 1105(c)(1); Rodriguez-Abreu v. Chase

Manhattan Bank, 986 F.2d 580, 584 (1st Cir. 1993). To determine

whether a valid delegation of authority took place here, we must

address the majority's "double issue": (1) whether the Plan

authorized the Hospital to delegate its authority to Partners and,

if so, (2) whether there is adequate evidence of the claimed

delegation of authority.

7
To the extent the majority is suggesting that the Plan's
argument for deferential review is strengthened by this alternative
theory -- i.e., that MGH and Partners are affiliated entities
between whom delegation is unnecessary -- the suggestion is
gratuitous given that the Plan did not offer the theory. Moreover,
if the Plan, a sophisticated litigant, thought such a view of the
entities' relationship was viable, it presumably would have made
the claim to avoid relying solely on an approach that even the
majority considers justified "perhaps only by a modest margin."

-19-
A. Was Delegation Authorized?

A plan fiduciary may delegate its fiduciary

responsibilities to a third party only where the plan "expressly

provide[s] for procedures" for such a delegation. 29 U.S.C. §

1105(c)(1). As explained in Wallace v. Johnson & Johnson, 585 F.3d

11, 15 (1st Cir. 2009), our court has placed little emphasis on the

statute's reference to delegation "procedures." That is, we do not

require that a plan establish any procedures governing delegation

beyond a basic grant of the authority to delegate itself. See id.

("Our own cases treat delegation 'authority' and delegation

'procedures' as more or less the same thing . . . ."). However,

the statute's reference to "expressly provid[ing]" delegation

procedures means that such a grant of authority to delegate must be

clearly stated. This is consonant both with the requirement that

the initial grant of discretionary authority by a plan be

unambiguous, see Terry v. Bayer Corp., 145 F.3d 28, 37 (1st Cir.

1998); Rodriguez-Abreu, 986 F.2d at 583, and with our case law

examining plan language granting authority to delegate.

In Wallace, we found a valid delegation of discretionary

authority where it was "clear" that the benefits plan at issue

"purport[ed] to allow delegation." 585 F.3d at 14. The relevant

language of the plan stated that the fiduciary "may '[d]elegate its

authority established' by the Plan, 'designate persons to assist in

carrying out fiduciary duties,' 'allocate responsibility for the

-20-
operation and administration' of the Plan, and '[a]ppoint persons

or committees to assist it to perform its duties' under the Plan."

Id. at 14-15. We reached the same conclusion in Terry, where the

plan stated that "'[t]he Company may appoint one or more

individuals to act on its behalf, in which case every reference

herein made to the Company shall be deemed to mean or include the

individuals as to matters within their jurisdiction.'" 145 F.3d at

37-38. In each of these cases, the plan language was unambiguous

and unqualified in its grant of authority to delegate.

Here, in contrast, the Plan cannot be read to authorize

a delegation of plenary administrative authority over the Plan to

Partners. The most relevant provision of the Plan document, and

the one emphasized by the Plan,8 reads as follows:

6.3. Employment of Agents. The Hospital may
employ agents, including but not limited to, a
Claims Processor, accountants, attorneys or
actuaries to perform such services and duties
in connection with the administration of the
Plan as it may direct. . . . The Hospital
shall be fully protected in acting upon the

8
The Plan contains another potentially relevant provision,
Article 6.4, which provides authority for the Hospital to "delegate
to the Claims Processor responsibility for certifying the
information and amount necessary for the proper payment of claims
from the Fund under the provisions of the Plan." The Plan does not
contend, however, that the Hospital's authority to delegate its
discretionary authority to Partners arises from this provision.
This is because the delegation authorized in Article 6.4 is a
limited one relating to claims processing duties, and, as discussed
below, the authority that may be delegated to the Claims Processor
under the Plan falls short of the sort of administrative authority
that will trigger deferential review.

-21-
 advice of any such agent, in whole or in
part . . . .

Unlike the plan language in Terry and Wallace, the provision here

authorizes no complete devolution of the discretionary authority

granted to the Hospital under Article 6.1 of the Plan. Rather,

Article 6.3 allows the Hospital to "employ" agents, often referred

to as service providers in ERISA parlance, whose activities it may

"direct," to assist with the day-to-day operation of the Plan and

to advise the Hospital in carrying out the fiduciary duties

assigned to it in Article 6.1. In Terry, in the course of

determining whether a third-party claims processor could be sued as

a fiduciary under ERISA for its role in denying the claimant

benefits, we drew a sharp distinction between these types of "third

party service provider[s]," on the one hand, and the plan

administrator and fiduciaries, on the other. 145 F.3d at 35-36.

The reference to a "Claims Processor" as one of the

agents the Hospital may employ reflects the limited nature of the

delegation authorized by Article 6.3, and, critically, that it does

not include the ultimate authority to "determine eligibility for

benefits or to construe the terms of the plan" -- the authority

that triggers deferential review. Firestone, 489 U.S. at 115. A

claims processor generally makes the initial determination on a

benefits claim and may handle the first level of appeals, but

another entity is usually responsible for making a final

-22-
determination on appeal.9 In the typical instance, we have thus

noted that "an entity which merely processes claims 'is not a

fiduciary because such person does not have discretionary authority

or discretionary control respecting management of the plan.'"

Terry, 145 F.3d at 35-36 (quoting 29 C.F.R. § 2509.75-8, D-2

(1997)). Such is plainly the case under the Plan. Article 6.1

sets the Hospital's authority side-by-side with the Claims

Processor's. It makes clear that, though "[t]he processing of

claims and calculation of benefits shall be the sole responsibility

of the Claims Processor," it is the Hospital that has "full

discretionary authority to administer the Plan, including without

limitation the authority to determine eligibility for benefits,

construe the terms and conditions of the Plan, and resolve disputes

as to the interpretation of the Plan documents."

Accordingly, I read Article 6.3 to authorize delegation

of administrative functions short of the Hospital's core authority

to "determine eligibility for benefits" and "construe the terms and

conditions of the Plan."10 At a minimum, if this provision were

9
Here, for instance, Liberty (acting as claims processor)
made the initial benefits determination and processed Maher's first
appeal, but, upon Maher's second and final appeal, Partners made
the ultimate determination to deny.
10
In relying on Pettaway v. Teachers Insurance and Annuity
Ass'n of America, 644 F.3d 427 (D.C. Cir. 2011), for the
proposition that decisional authority to determine benefits can be
inferred from plan language, the majority fails to take seriously
the "clear statement" standard in our case law. Whether or not the
language in Pettaway would meet that standard, the language here

-23-
intended to permit the delegation of the totality of the Hospital's

discretionary authority, it lacks the requisite clarity. Cf.

Terry, 145 F.3d at 37 ("[T]he grant of discretionary authority must

be clear."). I thus conclude that Article 6.3 did not authorize

the Hospital's delegation of discretionary authority to Partners.

However, as discussed below, even if the Plan permitted such

delegation, the evidence that a delegation took place is

inadequate.

does not. The Pettaway court described the relevant plan
provisions as follows:

As stated in the Plan Document, the "Academy shall be the
Plan Administrator and the 'Named Fiduciary'" with the
"absolute power, authority and discretion to administer
the [Academy] Plan." Plan Document at 3.1, 3.2. "All
interpretations of the Plan, and questions concerning its
administration and application, shall be determined" by
the Academy, which has the authority to "appoint such
accountants, counsel, specialists, and other persons as
it deems necessary or desirable in connection with the
administration of the Plan." [Plan Document] at 3.2.

Pettaway, 644 F.3d at 434. Thus, unlike the MGH Plan, delegation
under the plan in Pettaway was not limited to "agents" whom the
administrator would "direct." See supra pp. 21-22. Instead, the
Pettaway administrator had broad authority to delegate
administrative responsibility to others whenever such a transfer of
duties was "deem[ed] necessary or desirable."

The limited language in the MGH Plan renders irrelevant the
majority's observation that lawyers, accountants and actuaries may
be assigned fiduciary duties. The issue here is not whether such
professionals are considered fiduciaries, but whether this Plan
clearly endorsed delegation of the authority to make final benefits
determinations.

-24-
B. Did a Delegation Occur?

The Plan asserts that evidence of a delegation of

authority to Partners can be found in a 2005 document entitled

"Partners HealthCare System, Inc. Health and Welfare Plan Document"

(the "Partners Plan Document"), which the Plan characterizes as a

Summary Plan Description ("SPD"). The document, published under

Partners' name, purports to be "a wrap-around plan document that

contains the definitions, participation and administration

provisions of the various Partners health and welfare plans," which

includes the Plan at issue here as well as over forty others, "and

incorporates by reference the various Benefit Contracts associated

with the Plan to form a complete plan document." The language

supposedly effecting the delegation, located in Section II, Article

IX of the Partners Plan Document, simply states, "Partners acts as

the Plan Administrator for ERISA purposes of the Plans." The

Partners Plan Document further provides that, as Plan

Administrator, Partners "has the discretion to determine all

matters relating to eligibility, coverage and benefits under each

Plan" and "has the full power to interpret each Plan and is

responsible for the operation of each Plan."

Our cases involving delegation of fiduciary authority

under ERISA do not directly address what sort of evidence will

suffice to show that delegation has been effected. To some extent,

the answer in an individual case may depend upon whether the ERISA

-25-
plan at issue sets forth particular procedures to canalize the

delegation process. However, often, as here, the plan will not

specify a mechanism for delegation. In these cases, our precedents

hint at some basic guidelines for determining whether the evidence

before the court establishes the delegation of fiduciary authority.

First, it is not enough merely to show that the putative

delegate is carrying out discretionary functions of plan

administration. In Rodriguez-Abreu, a senior executive of the

defendant employer conducted a review of the denial of plaintiff's

benefits and corresponded with the plaintiff regarding his

eligibility. 986 F.2d at 582, 584. The defendant argued that

these circumstances alone were sufficient to show that the plan

fiduciaries had delegated their discretion to the executive,

triggering a deferential standard of review. We disagreed. Noting

that there was "no expression of intent that [the executive] act as

the delegate of the Fiduciaries" in the plan documents or elsewhere

in the record, we found no valid delegation of authority and thus

employed a de novo standard of review. Id. at 584.

Second, evidence of the delegation may be provided by a

written instrument other than the plan documents themselves. In

Terry, the benefit plan at issue conferred discretionary authority

to administer the plan to the Bayer Corporation, and Bayer in turn

delegated that authority to an internal "Benefit Administration

Committee." 145 F.3d at 37-38. The only evidence of this

-26-
delegation was an internal organizational document (the

"Administrative Procedures for the Benefit Administration

Committee"), which, among other things, explained that the

Committee had been formed to "'act on behalf of [Bayer] by

assisting [Bayer] in fulfilling its administrative duties which are

set forth in the employee benefit plans.'" Id. at 35, 38. We

found this "clear and direct delegation -- by written instrument --

from the Plan Administrator to the Benefit Committee" sufficient to

justify a deferential standard of review. Id. at 38; see also

Wallace, 585 F.3d at 14-15 (holding extra-plan written instrument

transferring discretionary authority to administer plan to third

party sufficient evidence of valid delegation to trigger review

under the "arbitrary and capricious" standard).

Here, we have a written document -- the Partners Plan

Document -- that purportedly gives to Partners the discretionary

authority to administer the Plan. However, the relevant terms in

the Partners Plan Document represent nothing more than the bare

assertion by a third party of discretionary authority over

administration of the Plan. The document states simply that

"Partners acts as the Plan Administrator" for all plans listed

among its pages,11 and that Partners "has the discretion to

11
As Maher points out, the Partners Plan Document never
accurately refers to the Plan. In a table detailing the various
subsidiary plans to which it applies, the Partners Plan Document
lists an "MGH LTD Insurance Plan." The Plan is not, in fact, an
insurance plan, as it is funded through a trust, and thus the

-27-
determine all matters relating to eligibility, coverage and

benefits under each Plan" and "has the full power to interpret each

Plan and is responsible for the operation of each Plan." This is

at best corroborative evidence of a transfer of authority from the

Hospital to Partners, but insufficient on its own to establish the

delegation. The Plan has offered no evidence of an agreement

between the Hospital and Partners, a corporate resolution by the

Hospital, or other such documentation that would indicate that the

Hospital affirmatively granted discretionary authority over the

Plan to Partners.

In arguing over the effect of the Partners Plan Document,

the parties vigorously dispute whether it properly qualifies as an

SPD for the Plan.12 This is a question that need not be resolved

here, as nothing turns on it. Even if the Partners Plan Document

qualified as an SPD, there would be a direct conflict with the

primary Plan document that must be resolved in the Plan document's

favor. Each document purports to grant full discretionary

authority over the Plan, with the power to make "final and binding"

decisions, to a different entity. Where there is a conflict

reference to an "LTD Insurance Plan" is erroneous.
12
Maher argues at some length that the Partners Plan Document
fails to include all categories of information required by statute
to be present in an SPD. See 29 U.S.C. § 1022(b). The Plan
counters that the Partners Plan Document explicitly states that it
is only one of several documents that "collectively constitute the
summary plan description for each Plan," implying that those
additional documents supply the missing information.

-28-
between the plan and the SPD, the plan language will generally

control, except in situations where the beneficiary relied to her

detriment on the SPD. See Ringwald v. Prudential Ins. Co. of Am.,

609 F.3d 946, 948-49 (8th Cir. 2010) (disregarding grant of

discretionary authority that appeared only in SPD); Schwartz v.

Prudential Ins. Co. of Am., 450 F.3d 697, 699-700 (7th Cir. 2006)

(same, and explaining that SPD controls if participant

detrimentally relied on it); cf. Mauser v. Raytheon Co. Pension

Plan for Salaried Emps., 239 F.3d 51, 54-55 (1st Cir. 2001) (where

SPD conflicts with a plan's terms, the SPD will control if the

claimant demonstrates "significant or reasonable reliance" on the

SPD). Thus, to the extent that the Partners Plan Document

qualifies as an SPD, the grant of discretionary authority in the

Plan document must still be credited over the conflicting grant in

the putative SPD.13

In sum, the Plan by its terms did not authorize the

Hospital to delegate its authority, and, even if the Plan had

permitted such delegation, there is insufficient evidence that the

13
The majority fails to confront the inconsistency between the
documents and, indeed, cites the Partners Plan Document as evidence
that the Hospital was authorized to delegate its discretionary
authority. But a bare assertion of authority by the putative
delegee is even less meaningful as proof that delegation was
authorized than it is as evidence that a delegation in fact
occurred. In effect, the majority assumes that Partners' assertion
that it had authority is evidence that it was given that authority.
Such circular reasoning is both illogical and unpersuasive.

-29-
Hospital in fact delegated its authority to Partners. Partners'

denial of Maher's benefits must therefore be reviewed de novo.

II.

In a de novo review of a benefits decision, "no deference

[is given] to administrators' opinions or conclusions based on

the[] facts." Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510,

518 (1st Cir. 2005); see also Richards v. Hewlett-Packard Corp.,

592 F.3d 232, 239 (1st Cir. 2010) (same). Instead, an independent

review of the evidence in the administrative record must be

performed, Orndorf, 404 F.3d at 518; Richards, 592 F.3d at 239, and

the "guiding principle" is that the plaintiff bears the burden of

proving he is disabled, Orndorf, 404 F.3d at 518-19. To meet that

burden, the terms of the Plan require Maher to prove a "complete

incapacity" preventing her "from performing any and every duty of

any occupation or employment, for which [she] is reasonably

qualified by education, training or experience." The Plan has

narrowed the scope of the inquiry somewhat by specifying the

occupations for which it believes Maher to be qualified: telephonic

triage nurse, nurse case manager, and utilization review nurse.

Maher's arguments on the merits of the Plan's benefits

determination fall into two categories. First, Maher argues that

her use of narcotics renders her incapable of filling any of the

above-mentioned jobs for which she is qualified by "education,

training, or experience." In support of this argument she points

-30-
to state law that purportedly prohibits her from performing any

nursing duties while under the influence of narcotics.

Alternatively, she submits that, legality aside, the effects of her

medications would impair her judgment and interfere with her

ability to perform nursing duties. Second, Maher contends that the

evidence supports the disability caused by her chronic pain and

nausea, and that Partners wrongly discounted evidence of the manner

and extent to which pain affects her ability to function.

I address each of these arguments in turn.

A. Disabling Effects of Narcotics Use

Maher's medical records confirm that, for nearly a

decade, Maher has treated pain with a varying array of powerful

narcotics, and she usually has taken multiple drugs at the same

time and in significant doses. In a 2007 letter, Dr. Elizabeth

Cuevas, Maher's primary care doctor, noted that her patient is

"treated with narcotics that are prescribed at very high doses,"

and Dr. Wolfram Goessling, Maher's treating gastroenterologist, has

similarly noted that Maher "takes impressive amounts of narcotics."

Over the course of her treatment, Maher has consulted several pain

clinics and periodically changed medications, but her records

reveal no success in scaling back the use of narcotic painkillers.

According to Dr. Herbert Malinoff, one of Liberty's consulting

doctors, Maher's record of treatment supports a diagnosis of

-31-
"chemical dependency relative to opioid and Benzodiazepine use over

a long period of time."

Maher contends that her drug use, as a matter of law,

prevents her from working in any job within the field of nursing,

and thus precludes employment in the one area for which she is

qualified by education, training, or experience. As Maher notes,

Massachusetts' Standards of Conduct for licensed nurses prohibit

nurses from practicing "while impaired." 244 Mass. Code Regs.

§ 9.03(36). Maher argues that the sedentary nursing roles that

Liberty has suggested she would be capable of filling all

necessarily involve the "practice" of nursing, defined by statute

to include "coordination and management of resources for care

delivery." Mass. Gen. Laws Ann. ch. 112, § 80B. Because she is

"therapeutically addicted to narcotic medication," Maher suggests

that she is legally "impaired" and cannot serve in the above

positions.14

Though Maher tries to segregate this line of reasoning

from her alternative argument that the effects of her medications

would interfere with her ability to carry out the duties of a

nursing job, they cannot be so easily disentangled. The fact of

narcotics use does not, by itself, appear to preclude legal

14
Because I dispose of Maher's argument based on the
definition of "impaired," I do not address her contention that the
sedentary nursing roles identified by Liberty involve the
"practice" of nursing under Massachusetts law.

-32-
function as a nurse. The governing regulations define "impaired"

to mean "the inability to practice nursing with reasonable

judgment, skill, and safety by reason of alcohol or drug abuse, use

of substances, a physical or mental illness or condition, or by any

combination of the foregoing." 244 Mass. Code Regs. § 9.02. Thus,

whether Maher is "impaired" turns not on whether she is addicted to

narcotics, but on a factual determination of whether her narcotic

use is likely to interfere with her "judgment [and] skill." Id.

The evidence of the effect of Maher's narcotic use on her

ability to concentrate and function is mixed. There is, to be

sure, an intuitive logic to the notion that we should be wary of

entrusting patient care to a medical professional who takes large

amounts of narcotic medications. This is a point that Maher

emphasizes in her briefs, and it has some basis in fact. Medical

authorities warn that narcotics may cause sedation, "mental

clouding," and impaired psychomotor function. However, according

to a publication of the American Medical Association included in

the administrative record, these types of side effects "usually

dissipate with continued treatment, normally within a week with

regularly scheduled dosing, and studies have demonstrated that most

patients on chronic opioid therapy can safely drive cars." One of

Liberty's consulting physicians, Dr. Robert Millstein, makes the

same point in his February 2007 report, though he acknowledges

-33-
"very few studies have examined the effects of opioids on

selective, divided, and sustained attention."

Maher's medical records indicate that she has often

complained of the sedation brought on by her regimen of narcotics.

However, close scrutiny of these records indicates that many of her

reports of somnolence and other drug-related side effects are

correlated with a change in medication or an adjustment of dosage.

To take one example, Maher saw Dr. Goessling in March 2005 and

complained that the morphine she was taking made her "loopy and

more sleepy than usual." Her medical records reveal that she was

started on morphine only a couple of days prior, when she was

admitted to the hospital for abdominal pain and the pain clinicians

recommended that she transition from OxyContin.

Overall, I do not find convincing support in the record

for the proposition that Maher's drug use, by itself, would render

her incapable of working in one of the sedentary nursing positions

identified by Liberty. There is no clear prohibition in

Massachusetts on serving as a nurse while on a medically prescribed

regimen of narcotics, so long as the drugs do not impair the

nurse's "judgment, skill, and safety." Maher's doctors have not

suggested that her use of drugs would interfere with her judgment

or ability to make rational decisions. Indeed, Dr. Goessling and

Dr. Cuevas both identify excessive sedation to be the major side

effect associated with Maher's medication. I acknowledge that Dr.

-34-
Goessling has opined that he "cannot imagine that it would be in

[Maher's] or society's benefit to have her work as a nurse making

decisions over other people's lives," but he does not point to any

specific effect of the drugs that would render Maher incapable of

safely managing the limited nursing roles suggested for her by

Liberty.

I am not unconcerned by the possibility that narcotic-

related sedation would make it difficult for Maher to complete a

regular workday. In one instance in 2005, Maher reported that the

somnolence associated with a change from OxyContin to Palladone was

causing her to take three naps per day. Such considerable sedation

would clearly interfere with most if not all possible employment.

However, because Maher's reports of drowsiness and other adverse

effects from medication appear largely related to alterations in

her drug regimen -- which conforms to the medical evidence that

side effects are most pronounced when first starting a narcotic --

I do not see convincing evidence that Maher's ability to

concentrate and exercise judgment would be significantly

compromised by a regular and stable program of narcotic

medications.

B. Disabling Effects of Pain and Other Symptoms

I reach a different conclusion with respect to the impact

of the symptoms of Maher's maladies -- chronic pain, nausea,

vomiting, and food intolerance -- on her ability to work. After

-35-
careful review of the record, I find persuasive evidence that

Maher's symptoms would prevent her from performing the duties of

the jobs identified by Liberty.

Before evaluating the record on this issue, I note that

my concern here lies with the evidence of limitations attributable

to Maher's symptoms, and not with whether the evidence supports

Maher's underlying medical conditions. There is considerable

uncertainty regarding the etiology of Maher's abdominal pain and

other complaints, and attempting to resolve a question that has

stymied multiple doctors for the past decade is both unnecessary

and beyond my expertise.15 The diagnosis makes little difference

here. Our court has emphasized before that in dealing with hard-

to-diagnose, pain-related conditions, it is not reasonable to

expect or require objective evidence supporting the beneficiary's

claimed diagnosis. See Cook v. Liberty Life Assurance Co., 320

F.3d 11, 21 (1st Cir. 2003). Our focus instead must be on whether

evidence supports an inability to work due to "the physical

limitations imposed by the symptoms of such illnesses . . . ."

Boardman v. Prudential Ins. Co. of Am., 337 F.3d 9, 16 n.5 (1st

Cir. 2003).

15
Dr. Goessling, a trained gastroenterologist and Associate
Professor of Medicine at Harvard Medical School, continues to
believe that Maher's abdominal symptoms are most likely caused by
chronic pancreatitis. The Plan's doctors disagree, but concede
that the record supports a diagnosis of either "chronic pain
syndrome with abdominal focus," per Dr. Malinoff, or fibromyalgia,
per Dr. Millstein.

-36-
 1. Evidence Relied upon by the Plan

I begin by assessing the evidence that, in the view of

the Plan, calls Maher's limitations into question, the foremost of

which is the alleged inconsistency between Maher's reported

capabilities and the level of activity confirmed by surveillance.

Liberty conducted surveillance of Maher on nineteen days between

October 2002 and October 2006, portions of which were recorded on

video.16 The Plan and its doctors highlighted a handful of examples

of increased activity by Maher captured in the surveillance. On

one occasion, Maher was observed walking to the front of her

property "carrying what appeared to be a flower / plant and a large

bucket," and, four minutes later, walking back with the same

bucket. On another, she drove herself a short distance (a four-

minute drive) to a local school, where she went inside and returned

carrying her son (then close to three years old), whom she placed

inside the car before departing for her home. On a third occasion

-- and the one on which the Plan places the most emphasis --

Maher's husband drove Maher and her son to a local soccer field on

a Saturday morning. There, Maher "was periodically observed as she

and her husband flew a kite with the young boy," as she "walked and

jogged around the soccer field," and as she "at one point lifted

16
This included six days of surveillance in 2002, three days
in 2005, and ten days in 2006.

-37-
the small boy and swung him around in her arms." The outing lasted

thirty-four minutes.

This surveillance evidence does not have the significance

that the Plan ascribes to it. In the activity questionnaires she

submitted to Liberty, Maher consistently reported that the level of

activity she can sustain is entirely dependent on her pain, nausea,

and level of medication. For example, in her latest questionnaire,

dated September 2006, Maher indicated that the amount of time she

can tolerate sitting, standing, and riding in or driving a car

depends on the presence of pain, nausea, vomiting, and diarrhea.

She also noted that she leaves the house during the week two to

three times a day (one to two times on weekend days), and that she

helps take care of her children and perform small chores when she

is able.

As the majority points out, Liberty's surveillance is not

inconsistent with Maher's own account of her activities. Over

nineteen days of surveillance, there were a number of days in which

Maher was confirmed to be at home and never left the residence. On

other days, she left the house -- either as a passenger or driving

herself -- to run a limited number of errands, mostly picking up or

dropping off her children at school, and once to go to dinner at a

restaurant. She was also observed outside on two brief occasions

involved in what could generously be described as yard chores:

carrying a flower pot and, on another occasion, sitting in the bed

-38-
of her husband's truck holding a broom or rake while her husband

appeared to be cleaning up. All of this activity is consistent

with her description of a low level of activity dependent on the

ebb and flow of her symptoms. It would be unusual for a mother of

three children to be able to avoid all activity.

With regard to the kite-flying episode, which strays the

farthest from Maher's reported limitations, Maher has indicated

that the outing was a "special event" for which she premedicated

with morphine. In other circumstances, this explanation might

strain credulity. Here, however, the notion that Maher

premedicates to prepare for activities that may trigger pain finds

support in records that predate the incident.17 In a March 2003

activity questionnaire, for example, Maher noted that she travels

by plane only with "pre-medication for pain and nausea from

increased cabin pressure on abdomen." In her September 2006

questionnaire, Maher also noted that her ability to carry out

various activities of daily life "always depend[s] on how much pain

medicine I use . . . to help myself." Moreover, the entire outing

17
The district court concluded that, assuming that Maher's
outing with her family can be explained by premedication, "it is a
reasonable inference that she could also pre-medicate to perform a
sedentary job." I cannot agree. Maher takes a large amount of
narcotics daily to address her background pain. The fact that she
can, on top of this background dosage, take additional pain
medications to ward off pain during the occasional short episodes
of increased activity does not suggest that it would be feasible
for her to regularly take extra medication to make it through an
eight-hour workday.

-39-
at the athletic fields was very brief, lasting just over half an

hour. It would be unfair to read too much into one short episode

of increased activity, given the consistency of the larger record

of surveillance with Maher's reported capabilities.

Turning to an evaluation of the medical opinions

concerning Maher's limitations, my conclusion again diverges from

that of the Plan and its doctors. Among Maher's treating doctors,

there is thin support for her capacity to return to a sedentary

job. The most direct evidence is found in a questionnaire,

completed by Dr. Gale Haydock, indicating that Maher is "OK to

perform sedentary duties." However, Dr. Haydock treated Maher only

once, in the winter of 2006, when Maher was admitted to the

hospital for several days to treat a flare-up of abdominal pain,

and thus Dr. Haydock had no opportunity to observe the course of

Maher's symptoms over time.

One could also, as the Plan has, read various statements

by Maher's primary care physician (Dr. Cuevas) to support Maher's

ability to perform sedentary work. Most notably, in a conversation

with Dr. Malinoff, Dr. Cuevas stated her agreement with Dr.

Malinoff's opinion that, "from a purely internal medicine

perspective, there is no identifiable physical exam or anatomic /

laboratory abnormality that would prevent [Maher] from working at

a very minimum at a sedentary level." This awkwardly precise

statement is technically true and is, undoubtedly, an accurate

-40-
reflection of Dr. Cuevas's medical opinion.18 It is also

transparently misleading. Maher's medical records make clear that

no doctor has been able to identify a physical or anatomic

abnormality that causes her symptoms. However, the absence of a

diagnosed medical condition says nothing about the reliability of

Maher's complaints or whether her reported symptoms prevent her

from working. On those questions, Dr. Cuevas's opinion is

unequivocal. In a letter dated March 2007, Dr. Cuevas wrote that

Maher "remains in significant disability, both from her chronic

pain and from the side effects the pain medication cause," and that

she "is unable to reliably perform duties because her pain can

become so severe so quickly."

Lastly, the record also contains opinions from the three

doctors retained by the Plan -- Dr. Millstein, Dr. Malinoff, and

Dr. Dean Hashimoto, Chief of Occupational and Environmental

Medicine at MGH -- concluding that the available evidence does not

support Maher's claimed inability to work a sedentary job. I find

the opinions rendered by these doctors unpersuasive. Each doctor

relied to a significant degree on the surveillance records in

evaluating Maher's capabilities, focusing on the episodes of

activity detailed above and finding them inconsistent with Maher's

18
Following their conversation, Dr. Malinoff mailed a letter
to Dr. Cuevas that recapitulated the substance of their
conversation and asked that she sign to verify its accuracy. She
did so and returned the letter to Dr. Malinoff.

-41-
claims. Dr. Malinoff and Dr. Hashimoto also interpreted Dr.

Cuevas's statements as supportive of Maher's ability to return to

work. For the reasons stated, I have reached contrary conclusions

based on the same evidence. Additionally, Dr. Hashimoto observed

that, even accepting the veracity of Maher's reported symptoms,

there has been no attempt to evaluate "through neuropsych testing,

scans, or other available means" the extent to which Maher's pain

and use of narcotics affect her cognition and ability to function.

This failing can be attributed, to some degree, to the Plan's

decision not to pursue an independent medical evaluation of Maher

to assist in the assessment of her claim.19 Nevertheless, as I

discuss below, I find the record evidence of Maher's limitations

sufficient even absent the sort of testing suggested by Dr.

Hashimoto.

19
Indeed, I find the Plan's failure to conduct an independent
medical examination somewhat troubling. There is no requirement
that a plan administrator arrange for a medical examination prior
to terminating benefits, see Orndorf, 404 F.3d at 526, but here the
circumstances certainly should have suggested its utility. As
early as 2004, Dr. Millstein counseled that "[i]f it is felt to be
important to ascertain whether impairment due to abdominal pain
exists, I would suggest consideration of functional assessment by
some alternative means." After her benefits had been denied, Maher
even offered to make herself available for a physical examination
by a doctor of the Plan's choice. The record reflects that the
Plan's administrators internally discussed the possibility of an
independent medical examination in September 2007, but declined to
pursue one due, in part, to concern for slowing down the process.

-42-
 2. The Evidence Supports Maher's Limitations

Viewing the totality of the medical evidence in the

administrative record, I am persuaded that Maher's symptoms prevent

her from reliably performing the duties of a sedentary nursing job.

At the fore of that evidence are the opinions of Maher's treating

doctors, Dr. Cuevas and Dr. Goessling. As noted, Dr. Cuevas's

assessment as of March 2007 was that Maher "remains in significant

disability" and "is unable to reliably perform duties because her

pain can become so severe so quickly." Similarly, Dr. Goessling,

who has followed Maher since the onset of her abdominal symptoms in

late 2001, opined in a 2007 letter:

In her current status, Mrs. Maher is barely
able to provide for herself and her 3-year-old
son during the day. She is not able to stand
or walk for prolonged periods of time. She is
suffering from constant nausea that is only
partially relieved by her . . . medication.
She has intermittent diarrhea due to
malabsorption from lack of pancreatic enzymes
followed by constipation caused by her high
doses of narcotics medication. On top of her
chronic abdominal pain, she has frequent
exacerbations, [and] often this pain
prohibit[s] her completely from taking any
solid foods. . . . [¶] . . . [L]et me assure
that I do not see any way that my patient
would be able to sit or stand for prolonged
period[s] of time let alone do physically or
intellectually demanding work.

While there is some evidence that Dr. Goessling did not actively

treat Maher in 2006 and 2007, he saw her repeatedly in the

-43-
preceding years and she appears to have consulted with him prior to

his writing the letter quoted above.20

These opinions echo Maher's own assessment of her

limitations. In an affidavit, Maher stated that she "cannot be

counted on to do anything," because her symptoms come on

unpredictably and leave her in "excruciating pain" that "is so bad

that it sucks the wind out of [her]." Though pain is subjective

and thus difficult to reliably document, her characterization

appears to be borne out by the record. From late 2001, she has

consistently complained of intermittent and severe abdominal pain.

Her complaints have been credible enough to convince the numerous

doctors who have seen her that she needs serious narcotics to

relieve her pain and allow her to function. While we might suspect

drug-seeking tendencies in such circumstances, the record does not

reveal such tendencies. An early note from Dr. Goessling indicates

that Maher was "quite reluctant to take pain medications," and

there are multiple indications in later records of her desire to

move off of the painkillers.21 Even with her regular regimen of

20
The letter, addressed to Maher's case manager at Liberty,
begins, "I would like to update you on [Maher's] overall condition,
especially in light of the recent denial letter for her benefits
that she received," implicitly suggesting that Dr. Goessling had
current knowledge of Maher's condition at the time of writing.
21
Still, the record is mixed as to the sincerity of Maher's
desire to discontinue narcotic use, as she has twice started
treatment with a pain clinic and then failed to follow up. She
ascribes her reluctance to continue treatment at the clinics to
interpersonal conflict with the doctors at one clinic, and a

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heavy narcotics, Maher's abdominal pain has repeatedly brought her

to the emergency room, where she was admitted on at least two

occasions for multiple-day stays to manage her pain.

Maher's record of treatment thus bespeaks significant and

debilitating pain. Given the number of medical professionals who

have examined her and found her distress genuine, I have no reason

to question the reality of this pain. As the Seventh Circuit noted

in Carradine v. Barnhart, 360 F.3d 751 (7th Cir. 2004):

What is significant is the improbability that
[the claimant] would have undergone the
pain-treatment procedures that she did, which
included . . . heavy doses of strong drugs
. . ., merely in order to strengthen the
credibility of her complaints of pain and so
increase her chances of obtaining disability
benefits; likewise the improbability that she
is a good enough actress to fool a host of
doctors and emergency-room personnel into
thinking she suffers extreme pain; and the
(perhaps lesser) improbability that this host
of medical workers would prescribe drugs and
other treatment for her if they thought she
were faking her symptoms. Such an inference
would amount to an accusation that the medical
workers who treated [the claimant] were
behaving unprofessionally.

Id. at 755 (internal citation omitted). I therefore credit Maher's

reports of abdominal pain, and note as well that her

gastrointestinal and food intolerance symptoms -- which are more

readily verified -- find support in numerous records.

feeling that the type of program offered by the other clinic was
not appropriate for her. Her lack of follow-through in this regard
does not diminish the overall force of the evidence of her pain.

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 I similarly find the evidence sufficient to corroborate

Maher's claims that these symptoms would interfere with her ability

to work. Maher's recurring acute attacks of abdominal pain would,

at a minimum, result in frequent absences from work, which would be

prohibitively disruptive of any attempt to maintain regular

employment. Surveillance also suggests that her background level

of symptoms is sufficient to keep her housebound with some

frequency, or to permit only limited levels of activity. Though

Maher may occasionally run errands, contribute to household chores,

or even recreate with her family for short periods of time, there

is a sharp "difference between a person's being able to engage in

sporadic physical activities and her being able to work eight hours

a day five consecutive days of the week." Id. On balance, I

conclude that the evidence demonstrates that Maher cannot reliably

perform the duties of a full-time sedentary nursing job.

III.

Based on a close, de novo review of the administrative

record, I am persuaded that Maher's abdominal pain and related

symptoms effectively prevent her "from performing any and every

duty of any occupation or employment, for which [she] is reasonably

qualified by education, training or experience." Hence, I believe

we must go beyond vacating the district court's grant of summary

judgment in favor of the Plan and remand for entry of judgment in

Maher's favor. I therefore dissent.

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