United States Court of Appeals
For the First Circuit
No. 02-2277
JOYCE A. BOARDMAN,
Plaintiff, Appellant,
v.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, COMPAQ COMPUTER
COMPANY F/K/A DIGITAL EQUIPMENT CORPORATION AND DIGITAL EQUIPMENT
CORPORATION GROUP POLICY GL-22181,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Judith G. Dein, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Edmund P. Hurley, with whom Blaine J. DeFreitas, was on brief
for plaintiff, appellant.
Edward P. O'Leary for defendant, appellee The Prudential
Insurance Company of America.
Douglas T. Schwarz, with whom Martha K. Harrison, was on brief
for defendants, appellees Compaq Computer Company F/K/A Digital
Equipment Corporation and Digital Equipment Corporation Group
Policy GL-22181.
July 23, 2003
LIPEZ, Circuit Judge. Joyce A. Boardman ("Boardman")
appeals from the district court's entry of summary judgment for The
Prudential Insurance Company of America ("Prudential"), Compaq
Computer Company (successor in interest to Digital Equipment
Corporation and referred to throughout as "Digital"), and Digital's
Long Term Disability insurance plan, Group Policy GL-22181 ("the
Plan"). Boardman is a former participant in the Plan, a group
long-term disability insurance policy provided by Prudential to
employees of Digital, and governed by the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. (2002).
Boardman had been receiving benefits under the Plan for more than
six years when Prudential terminated her benefits on the ground
that she no longer met the plan's definition of "total disability."
After exhausting her administrative remedies, Boardman brought suit
in the district court for the District of Massachusetts claiming
that Prudential violated ERISA by arbitrarily and capriciously
terminating her benefits. The district court found that the
decision to terminate benefits was not arbitrary and capricious and
entered summary judgment for the defendants. We affirm.1
1
In granting Digital's motion for summary judgment, the
district court ruled that Digital is not properly a defendant in
the case. "[S]ince the relief sought is benefits payable by the
Plan, the proper defendant is either the plan or the plan's
fiduciaries." Boardman v. The Prudential Ins. Co. et al., No. 01-
10490m slip op. at 22 (D. Mass. Sept. 5, 2002) (citing Terry, 145
F.3d 28, 35-36 (1st Cir. 1998)). Boardman did not dispute this
contention before the district court and does not address it on
appeal. Indeed, all of the parties and the district court agree
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I.
We draw the relevant background facts from the summary
judgment record, leaving a discussion of controverted facts for the
analysis in Part III.
A. The Plan
Boardman began working for Digital on April 1, 1974. As
a Digital employee, Boardman was covered by Digital's Long Term
Disability insurance plan ("the Plan"). Prudential underwrites and
is the claims administrator for the Plan, which grants Prudential
discretion to determine entitlement to long-term disability
benefits and provides that benefits are paid upon proof of
eligibility being furnished to Prudential. Under the terms of the
Plan, after an elimination period of twenty-six weeks, a Digital
employee is eligible for long term disability benefits only if
Prudential finds that the requirements of Total Disability outlined
in the Plan have been met. The Plan's Schedule of Benefits defines
"Initial Duration" as the twenty-six-week Elimination Period plus
twenty-four months. During the Initial Duration, Boardman had to
demonstrate to Prudential that, due to her illness, she was unable
to perform the duties of her job as Project Manager. After twenty-
four months, in order to remain eligible for benefits, Boardman had
that "the Plan directed Prudential, not Digital, to make exclusive
eligibility decisions. The Plan did not reserve responsibility for
any discretionary eligibility-related duties to Digital." Id. at
23. We find no fault with the ruling on Digital and do not address
it further.
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to show that she was unable to perform any job for which she is
reasonably fitted by education, training and experience. The terms
of the Plan provide that "Prudential, at its own expense, has the
right to examine the person whose loss is the basis of a claim.
Prudential may do this when and as often as is reasonable while the
claim is pending."
B. Boardman's Illness and Her Eligibility for Benefits
Boardman stopped working for Digital on December 10,
1991. At the time, she was employed as a "Project Manager I," a
position that entailed managing engineers and conducting site
visits with customers, and required vision, hearing and speech in
ordinary conversation. The position did not require lifting or
carrying, and consisted of sixty percent sitting, twenty percent
standing, and twenty percent walking.
In the years leading up to the termination of her
employment, Boardman suffered from diffuse symptoms. As reported
by Dr. Anthony L. Esposito, an infectious disease specialist to
whom Boardman was referred by her primary physician, Dr. Stephen
Neustat, Boardman described her condition in January 1992 as
follows:
For the past three to four years she has had
fatigue, somnalence, recurrent "colds and
flu," and more recently, three to four
episodes of "parotitis";2 the latter have been
2
Parotitis is the inflamation of the parotid salivary
glands. Random House Webster's Unabridged Dictionary 1413 (2d ed.
-4-
characterized by local pain, tenderness and
swelling without fever or chills.
In a February 21, 1992 letter to Dr. Neustat, Dr. Esposito
concluded that, "based on the available data," Boardman suffered
from "chronic persistent Epstein Barr viral disease characterized
by both systemic manifestations as well as recurrent parotitis."
In addition to Dr. Neustat and Dr. Esposito, Boardman was treated
by Dr. Alan B. Marks and Dr. Alan I. Brenner, both of whom are
rheumatologists.
Over the next several years, Boardman continued to suffer
from a "large constellation of problems," although, according to
Dr. Marks, her doctors "have never been able to pin down a specific
diagnosis." Although Dr. Esposito concluded in February 1992 that
Boardman suffered from Epstein Barr viral disease, he conceded "the
possibility of other conditions that might be producing these
manifestations" and suggested that Dr. Neustat refer Boardman to a
rheumatologist. On March 23, 1992, Dr. Marks, one of Boardman's
rheumatologists, opined that "the most likely unifying diagnosis is
Sjogren's syndrome"3 and that he was "not sure what role, if any,
1997).
3
Sjogren's syndrome is an autoimmune disorder in which
immune cells attack and destroy the glands that produce tears and
saliva. Sjogren's syndrome is also associated with rheumatic
disorders such as rheumatoid arthritis. National Institute of
Neurological Disorders and Stroke, NINDS Sjogren's Syndrome
Information Page, at http://www.ninds.nih.gov/health_and_medical/
disorders/sjogrens_doc.htm (December 2001).
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EB [Epstein Barr] virus is playing in this." By July 1992, Dr.
Neustat reported to Prudential that the symptoms were "clearly
recognizable as Sjogren's," which is a "type of Lupus," and that
Epstein Barr virus "is no longer an issue." However, in a June 1,
1995, letter, Dr. Neustat reported that "Patient has chronic active
Epstein Barr viral infection with recurrent parotitis," and on May
29, 1997, Dr. Marks stated that "[i]t is possible that she does
have chronic fatigue, sicca syndrome, and myalgias related to EBV
disease." On November 2, 1998, Dr. Brenner opined that "I do not
believe a diagnosis of Sjogren's syndrome is appropriate or
helpful." Despite these varying diagnoses, Boardman continued to
suffer from chronic fatigue, musculoskeletal pain, and parotitis.
Boardman applied for long term disability benefits under
the Plan on May 8, 1992. Prudential approved the claim and
benefits began on June 10, 1992. On May 17, 1993, Digital informed
Prudential that it had received a letter indicating that Boardman
was working at her husband's auto shop. In response, Prudential
contacted Dr. Neustat on May 19, 1993, for an update on Boardman's
medical condition, and on July 15, 1993, Prudential conducted a
home visit with Boardman in order to review Boardman's claim
status. Dr. Neustat reported that Boardman "had more joint
symptoms than ever before," had developed arthritis symptoms and
swollen joints, and could "hardly hold a pen or pencil." Based on
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this information and Prudential's impressions of Boardman during
the home visit, Boardman's benefits were continued.
Boardman's twenty-four-month Initial Duration period
ended on June 9, 1994. Thereafter, to remain eligible for
benefits, Boardman had to show that she was disabled from the
duties of "any job for which [she is] reasonably fitted by [her]
education training or experience." Accordingly, in April 1995,
Prudential requested updated medical records from Boardman's
doctors. Included in Dr. Marks's records was a March 31, 1995
report stating that Boardman suffers from "extreme fatigue,
bilateral parotid swelling, dryness of eyes, myalgias, and
recurring neck pain," and concluding that "[b]ecause of the above
symptoms, particularly fatigue, arthralgias and myalgias, the
patient is unable to work." In a letter to Prudential dated June
1, 1995, Dr. Neustat summarized Boardman's complex condition as
"reduced energy and recurrent parotitis with recurrent bacterial
respiratory infections." Prudential continued to pay benefits to
Boardman.4
4
During this time, Boardman applied for Social Security
benefits. Her claim was denied in January 1995 and again in April
1995. On July 23, 1995, after a hearing, an Administrative Law
Judge reversed the decision, finding that Boardman suffered from
recurrent EBV, Sjogren's syndrome, Hashimoto's thyroiditis,
fibromyalgia, chronic fatigue and joint pain, and that "as a result
of the limitations imposed upon the claimant by this severe
medically determinable impairment, [s]he would be restricted from
performing even sedentary work on a sustained basis." However, it
is well-established that "benefits eligibility determinations by
the Social Security Administration are not binding on disability
-7-
On February 20, 1997, Prudential again sought an update
of Boardman's medical status and sent an Attending Physician
Statement to Boardman for her doctor to complete. On June 14,
1997, Dr. Neustat completed the form, noting that "Patient has not
made any significant improvement" and that "no changes [are]
expected in near future" to Boardman's "permanent limitations."
After receiving this information, Prudential extended Boardman's
benefits for an additional year.
C. Termination of Boardman's Benefits
On March 18, 1998, consistent with its rights under the
Plan, Prudential required Boardman to undergo an independent
medical examination ("IME") with Dr. Hubert I. Caplan, a board
certified rheumatologist. She was instructed to bring all x-rays,
test results and medical records with her to the exam, and
Prudential forwarded to Dr. Caplan a complete copy of the medical
information in its file, which included information relating to
Boardman's education, training and experience. Prudential
requested that Dr. Caplan include in his report (1) the patient's
history; (2) objective findings noted during the examination; (3)
reasons that the patient could not perform her job or other jobs;
(4) limitations and restrictions placed on the patient; (5)
medications or therapy that would facilitate recovery; (6)
insurers." Cook v. Liberty Life Assurance Co., 320 F.3d 11, 16 n.5
(1st Cir. 2003).
-8-
activities, in relation to the patient's job and other jobs, that
she could perform now; and (7) when the patient might be able to
return to work.
Dr. Caplan examined Boardman on April 30, 1998. In
addition to conducting a physical examination and discussing
Boardman's symptoms, he reviewed Boardman's job description with
her. He issued a report on May 1, 1998:
In my opinion, a definite diagnosis has not
been established. There is no support for
[S]jogren's, or fibromyalgia and the
significance of Epstein-Barr virus antibody
titres is uncertain at best and any
correlation with clinical problems cannot be
proven, in general, and in my opinion,
especially in Mrs. Boardman's case.
A systemic rheumatic disorder such as mild
rheumatoid arthritis is possible. She my
[sic] have a mild recurrent idipathic [sic]
parotitis with a mechanical component,
however, the reason for her subjective
constitutional complaints is obscure. A
primary or reactive (secondary) psychogenic
disorder is possible also.
Having said this, it is my opinion that even
if one or more of the above listed diagnoses
were established, her current condition is not
such that renders her totally disabled from
her own occupation or from any other similar
occupation. In fact, perhaps a return to
work could provide the incentive not to give
in to periods of somnolence and exhaustion
which may, in large part, be biologic, i.e.
such symptoms at midday and early p.m..
I have reviewed her job description with her.
This includes both managing engineers and site
visits with customers. She is able to drive
and is able to do this work. Certainly a
-9-
position with somewhat less responsibility and
stress would even be more appropriate.
By letter dated May 20, 1998, Prudential notified
Boardman of its decision to terminate her benefits, effective
August 1, 1998, based on its determination that Boardman no longer
met the Plan's definition of Total Disability. The letter
indicated that this determination was based on Boardman's medical
records, the Attending Physician statement completed by Dr. Neustat
on June 14, 1997, and the results of the IME. The letter also
informed Boardman of her right to appeal the decision and submit
additional evidence or documentation on appeal.
Boardman appealed Prudential's determination that she was
no longer Totally Disabled by a letter dated June 16, 1998.
Although she did not submit any further documentation, she directed
Prudential's attention to the definition of Total Disability "along
with Dr. Neustat's diagnosis that clearly show [sic] Ms. Boardman
is totally disabled and eligible for LTD benefits." On June 29,
1998, Prudential confirmed its decision and notified Boardman of
her right to a second appeal. Once again, Prudential informed
Boardman that "[t]he appeal may identify the issues and provide
other comments or additional evidence she wishes [to have]
considered, as well as any pertinent documents she may wish [to
have] examine[d]."
By letter dated July 7, 1998, Boardman stated her
intention to pursue a second appeal, requested information about
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the appeals process, and requested copies of all the documents used
by Prudential in reaching its decision. Prudential sent the
requested information to Boardman on August 12, 1998, including a
summary of Prudential's appeals process. By letter dated February
9, 1999, Boardman submitted her second appeal of Prudential's
decision, specifically referring to Dr. Neustat's office note of
January 21, 1999, which states "Impression: Chronic active Ebstein
[sic] Barr viral infection with debilitating chronic fatigue which
meets the criteria for total disability."
In response to Boardman's second appeal, Prudential asked
Boardman to forward complete medical records for the period of June
1997 through the present from Dr. Neustat, Dr. Marks, Dr. Esposito,
and Dr. Brenner. Upon receipt of these updated medical records,
Prudential forwarded them to Dr. Caplan for review. Dr. Caplan
concluded that "the additional documentation does not change his
overall summary or the conclusions and opinions" expressed in his
prior report. Based on this review and the fact that "Dr. Neustat
did not include any objective evidence of impairment as a result of
[his] diagnoses," Prudential once again upheld its decision to
terminate Boardman's benefits.
Boardman requested a final appeal by the Appeals
Committee on June 30, 1999, but did not submit any additional
documentation. After an initial review of Boardman's medical file,
including documentation from Dr. Neustat, Dr. Marks, Dr. Esposito,
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and Dr. Brenner, the Appeals Committee requested that Boardman
submit all records of treatment by any other physicians and the
results of an EMG test that Dr. Marks requested for Boardman in
June of 1998. Boardman responded that in the past two years she
had only been treated by the doctors whose records were included in
her file, and that the EMG test mentioned by Dr. Marks was never
performed.
By letter dated August 4, 1999, Prudential informed
Boardman that the Appeals Committee had decided to uphold its
decision to terminate her benefits. The Appeals Committee noted
that while Dr. Neustat opined that Boardman's chronic active
Epstein Barr viral infection with debilitating chronic fatigue met
the criteria for total disability, "Dr. Neustat does not state what
criteria for Total Disability he is referencing in his opinion."
The Committee also found it significant that Dr. Marks, in his June
1998 letter, "does not comment on Ms. Boardman's ability (or lack
of ability) to function in any type of employment, nor in her
activities of daily living." The Committee concluded that "[n]one
of the specialists that have treated Ms. Boardman in the past two
years have indicated any limitations or restrictions, based on
objective findings, that would preclude Ms. Boardman from
performing any occupation for which she is suited." On this basis,
and in light of Dr. Caplan's determinations, the Appeals Committee
-12-
upheld Prudential's decision to terminate Boardman's long term
disability benefits effective August 1, 1998.
II.
We review the district court's grant of summary judgment
de novo. Terry v. Bayer Corp., 145 F.3d 28, 34 (1st Cir. 1998).
However, if the language of the underlying plan reserves discretion
to the insurer in determining eligibility for benefits, a federal
court reviews an insurer's termination decision "under a
deferential arbitrary and capricious standard." Cook, 320 F.3d at
18 (quoting Pari-Fasano v. ITT Hartford Life & Accident Ins. Co.,
230 F.3d 415, 418 (1st Cir. 2000)).
In this case, the parties agree that the terms of the
Plan grant Prudential the discretion to determine eligibility for
benefits. Therefore, like the district court, we can overturn
Prudential's termination decision only if "the insurer's
eligibility determination was unreasonable in light of the
information available to it." Pari-Fasano, 230 F.3d at 419.
Contrarily, the insurer's decision must be upheld "if it was within
[the insurer's] authority, reasoned, and supported by substantial
evidence in the record." Doyle v. Paul Revere Life Ins. Co., 144
F.3d 181, 184 (1st Cir. 1998) (internal quotation marks and
citations omitted). The existence of contrary evidence does not
necessarily render Prudential's decision arbitrary. Vlass v.
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Raytheon Employees Disability Trust, 244 F.3d 27, 30 (1st Cir.
2001).
III.
Under the Plan, eligibility for long term disability
benefits is contingent upon three requirements: (1) due to
sickness or accidental injury, the claimant is not able to perform
the duties of her own or any other occupation; (2) the claimant is
not working at any job for wage or profit; and (3) the claimant is
under the regular care of a doctor. In this case, only the first
requirement is at issue. The first requirement, in turn, involves
a two-pronged showing: the claimant must show that she is sick or
injured and the claimant must show that due to this illness or
injury she is unable to perform the material and substantial duties
of her own, or any other occupation for which she is reasonably
suited. In Prudential's eyes, Boardman failed to establish this
second prong--that her illness restricts her ability to perform the
material and substantial duties of her own, or any other occupation
for which she is qualified. We focus on that issue.
Boardman presented ample evidence, in the form of
doctors' evaluations, Attending Physician Statements, and other
medical records, documenting her illness. Both Dr. Caplan, the
independent medical examiner, and Prudential carefully reviewed
this documentation and were willing to accept, for the purpose of
determining whether Boardman met the definition of Total
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Disability, that she satisfied the first prong of the first
disability requirement--that she is sick or injured. However, both
Dr. Caplan and Prudential noted the absence of evidence showing
that Boardman's illness rendered her unable to work.
Dr. Caplan concluded that "even if one or more of
[Boardman's] diagnoses were established, her current condition is
not such that renders her totally disabled from her own occupation
or from any other similar occupation" (emphasis added). In her
brief, Boardman criticizes Dr. Caplan's skepticism of the various
diagnoses put forward to account for Boardman's symptoms, his
suggestion that "a psychogenic disorder" could be involved, and his
comment that "perhaps a return to work could provide incentive not
to give in to periods of somnolence and exhaustion." While
Boardman may have perceived these comments as insensitive,
Boardman's allegations of a "prejudicial view that [Caplan] employs
in his decision making process" are unpersuasive. Also, Boardman
misses the central point of Dr. Caplan's analysis--that even if the
diagnoses are established, Boardman's physical abilities are not so
diminished as to prevent her from performing the duties of her own
or any other similar occupation.
Although Dr. Neustat chronicled Boardman's symptoms in
his office visit note dated January 21, 1999, and concluded that
she meets the requirements of Total Disability, Prudential noted
that he "does not state what criteria for Total Disability he is
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referencing in his opinion." Similarly, the Committee noted that
although "[i]n his letter dated June 7, 1998, Dr. Marks indicates
that Ms. Boardman continues to feel poorly . . . [and] recommended
an EMG for Ms. Boardman's complaints of numbness and dropping
things, an EMG was not performed. [Dr. Marks] does not comment on
Ms. Boardman's ability (or lack of ability) to function in any type
of employment, nor in her activities of daily living." In its
final decision to terminate Boardman's benefits Prudential
concluded:
None of the specialists that have treated Ms.
Boardman in the past two years have indicated
any limitations or restrictions, based on
objective findings,5 that would preclude Ms.
Boardman from performing any occupation for
which she is suited. Therefore, we have
determined that Ms. Boardman does not meet the
definition of disability as required by the
policy.
Throughout the appeals process, Prudential advised
Boardman of her failure to show how her illness rendered her unable
5
In Cook v. Liberty Life Assurance Co., 320 F.3d 11 (1st
Cir. 2003), an ERISA case in which the insured also suffered from
chronic fatigue syndrome and fibromyalgia, we concluded that
"[g]iven the nature of Cook's disease, it was not reasonable for
Liberty to expect her to provide convincing 'clinical objective'
evidence that she was suffering from CFS." Id. at 21. In this
case, Prudential did not require Boardman to present objective
medical evidence to establish her illnesses. On the contrary,
Prudential was willing to accept that Boardman suffered from the
illnesses she reported to her doctors. Rather, Prudential wanted
objective evidence that these illnesses rendered her unable to
work. While the diagnoses of chronic fatigue syndrome and
fibromyalgia may not lend themselves to objective clinical
findings, the physical limitations imposed by the symptoms of such
illnesses do lend themselves to objective analysis.
-16-
to work, and informed her of her right to submit additional
evidence and documentation that she wished to have considered.
Repeatedly, Boardman's submissions on appeal consisted primarily of
arguments based on existing documentation, with scant attention to
her burden of showing that, due to her illness, she was unable to
perform the duties of her own or any other similar occupation.
Given (1) the absence of adequate evidence in Boardman's medical
records indicating that Boardman's condition imposed limitations on
her ability to perform the material and substantial duties of her
own occupation or any other occupation for which she is suited, and
(2) the evidence to the contrary provided in Dr. Caplan's reports,
Prudential's determination that Boardman failed to meet the
definition of Total Disability was not arbitrary or capricious.
IV.
For the foregoing reasons, the decision of the district
court is affirmed.
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Boardman v. Prudential Insurance Co. of America
Court: Court of Appeals for the First Circuit
Date filed: 2003-07-23
Citations: 337 F.3d 9
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