Brigham v. Sun Life of Canada

United States Court of Appeals
For the First Circuit

No. 02-1237

BRADLEY B. BRIGHAM,

Plaintiff, Appellant,

v.

SUN LIFE OF CANADA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lipez, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges.

Cristobal Bonifaz with whom John C. Bonifaz and Law Offices of
Cristobal Bonifaz were on brief for appellant.
Jay P. Symonds with whom Joseph M. Hamilton and Mirick,
O'Connell, DeMallie & Lougee were on brief for appellee.
Mary Ellen Signorille and Melvin R. Radowitz on brief for
amicus curiae AARP.

January 28, 2003
 COFFIN, Senior Circuit Judge. Appellant Bradley Brigham

claims that appellee Sun Life of Canada violated the Employee

Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§

1001-1461, when it terminated his long-term disability benefits.

Brigham had been receiving benefits for five years based on his

inability to perform his regular occupation. After that time

period, benefits were available under his plan only if he was

disabled from performing any occupation for which he was or could

become qualified. Sun Life concluded that he was capable of

sedentary work, and the district court found that the insurer's

determination indisputably was supported by substantial evidence in

the record. Appellant argues on appeal that the court used the

wrong standard and, even under the standard it used, reached the

wrong result. Although our judgment might have differed from Sun

Life's were we deciding on a clean slate, on the record before us

we are constrained to affirm the summary judgment.

I. Background1

Appellant Brigham, a 47-year-old man who has been a paraplegic

since a motorcycle accident when he was 16, was hired in the spring

of 1990 as an employment coordinator for a social services

organization. He served as an advisor on the employment of

1
We have borrowed liberally from the well stated factual
background section of the district court's opinion in this case.
See Brigham v. Sun Life of Canada, 183 F. Supp.2d 428-434 (D. Mass.
2002). As the district court noted, see id. at 428, the facts are
essentially undisputed.

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handicapped individuals, visiting multiple employers every day.

The travel required frequent transfers from his car to his

wheelchair and back, and after two years on the job the repeated

twisting and lifting of his chair led to significant left side and

back pain that his family doctor diagnosed as muscle strain.

The employee benefit plan issued by Sun Life to Brigham's

employer provides for both short-term and two stages of long-term

disability benefits. Long-term benefits are available for the

first sixty months of a totally disabling illness if it prevents

the employee from performing "all of the material duties of his

regular occupation" (emphasis added). After that initial five-year

period, an employee is eligible for benefits only if the disabling

condition prevents him from engaging in "any occupation for which

he is or becomes reasonably qualified by education, training or

experience" (emphasis added).

In June 1993, Brigham developed a respiratory tract infection

that triggered severe coughing spells, exacerbating his left side

pain and forcing him to stop work. He received short-term

disability benefits for six months and then in December 1993

applied for long-term benefits based on his severe back and side

strain. In an Attending Physician's Statement of Disability

("APS") dated December 21,2 Dr. Christopher French opined that

2
The APS is a two-page standardized form provided by the
insurer that includes sections on "Diagnosis," "Dates of
Treatment," "Progress," "Physical Impairment," "Prognosis," and

-3-
Brigham was unable to perform his own job because "the stress of

frequent transfer from [his] car [is an] intolerable physical

symptom." He characterized Brigham's physical impairment as "Class

4" out of five levels of progressively more limited physical

capacity, signifying a "[m]oderate limitation of functional

capacity; capable of clerical/administrative (sedentary) activity."

Although Dr. French stated that Brigham was totally disabled, he

also observed that he was a "good candidate for more sedentary work

but to do this he must get retraining." Brigham graduated from

both Williams and Amherst colleges and holds a master's degree.

In February 1994, Sun Life approved the payment of the first

stage of long-term disability benefits under the "own occupation"

provision. He received those benefits until December 1998, when

the sixty months of coverage ran out, although Sun Life temporarily

cancelled benefits in January 1995 based on its belief that Brigham

could at that point return to his regular job. Brigham appealed,

and after further investigation, Sun Life reinstated the "own

occupation" benefits in March 1995.

During the five years in which Brigham received long-term

disability payments, Dr. French submitted at least six additional

APS reports after the one filed in support of the original

application for benefits. Because this case turns on the

"Rehabilitation." The sections typically offer several alternative
answers, with boxes to be checked for the chosen response. The
form also provides general space for unguided "Remarks."

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sufficiency of the evidence of Brigham's ability to work, we have

closely reviewed the medical information contained in the record.

We summarize below Dr. French's reports during the relevant five-

year period and review other details surrounding Brigham's receipt

of benefits.

– March 1994. In response to a request from Sun Life for

updated information, Dr. French sent a letter dated March 31 that

stated:

[Brigham] is a paraplegic who had developed left side and
hip pain secondary to [the] frequent car to chair
transfer his work requires. These symptoms have improved
following several months of leave from work. I believe,
therefore, that he should avoid situations that require
frequent car to chair transfers.

– July 1994. Sun Life conducted an extensive personal

interview of Brigham, and the notes in the insurer's file state

that he "indicated that he would have resumed another position with

his company if it did not involve being out on the road, but they

had no work for him." The notes also state that Brigham reported

applying to law school and indicated an interest in earning a law

degree so that, among other endeavors, he could represent

individuals with disabilities. He further stated that, if law

school proved too demanding, he would consider earning a teaching

certificate, noting that he previously had worked as a teacher in

a private school.

-5-
 – October 1994. The third APS from Dr. French,3 dated October

12, reported that Brigham's condition remained unchanged, but the

physician increased the level of his physical impairment to Class

5, a "[s]evere limitation of functional capacity; incapable of

minimal (sedentary) activity." In the section labeled

"Rehabilitation," however, Dr. French indicated that Brigham could

work despite his impairment if the job did not involve getting into

and out of a car, and he recommended retraining.

– November 1994-March 1995. In a letter dated November 9, Dr.

French stated that Brigham's back pain had subsided since he had

stopped working, and expressed concern that a return to his

previous position – with its frequent travel – would bring it back.

He again recommended that Brigham "be placed in a situation that

does not require getting in and out of the car all day." In a

December conversation with a Sun Life representative, Dr. French

3
Both the district court and Sun Life identify the October
submission as the third APS, although it was at least the fourth
such statement since Brigham stopped work in June 1993. Brigham
had submitted two statements from Dr. French in the summer of 1993
in connection with his request for short-term disability benefits.
It appears that one of those earlier reports is considered the
"first" APS in the sequence discussed by the district court. Our
discussion considers the seven reports that were filed between
December 1993 and December 1998.
We add one further note about these reports. The briefs
reflect confusion about an APS that appears to be stamped as
received in February 1999. The stamped page, however, is actually
the first page of the December 1998 APS, which elsewhere in the
appendix is shown with a date stamp of December 10, 1998. Whatever
the reason for the double-dating, it is clear that the February
document is not a new APS.

-6-
reported that Brigham's condition had improved and his muscle

strain had resolved. A week later, Brigham told another caller

from Sun Life that he hadn't pursued either schooling or

alternative work. According to Sun Life's notes, Brigham explained

that "he has difficulty mobilizing himself and [his] wheelchair for

extended periods during the day." On December 22, Sun Life's

medical consultant, Maureen Speed, a nurse, spoke with Dr. French

to clarify the assessment in the doctor's Nov. 9 letter. Based on

Dr. French's information, including a statement that Brigham's

return to his previous job "might" trigger a recurrence of pain,

Sun Life concluded that he no longer was disabled from performing

his own occupation because "the possibility of a problem recurring

in and of itself does not constitute a disabling condition." In so

informing Dr. French, Sun Life's claims manager also wrote that

"[i]f any condition continues to exist, objective medical

information to support the continued disability is necessary."

As noted above, the company reversed its position and

reinstated Brigham's benefits after it received clarifying letters

from Drs. French and Perri stating that Brigham's pain would "no

doubt" return with repeated transfers into and out of his car. The

insurer previously had confirmed with his employer that Brigham

would have to transfer five to ten times a day if he resumed his

previous job.

-7-
 – June 1995. Brigham responded to an inquiry from Sun Life

about the impact of his disability on his daily life by stating

that he is "severely limit[ed] . . . in fundamental ways." He

wrote:

For example, it is very painful for me to transfer from
my wheelchair onto the toilet, into the bathtub, into
bed, and into my car. As a result, I require assistance
to perform all or part of these transfers.

– October 1995. Dr. French submitted a fourth APS that

reported Brigham's condition as unchanged, but he designated

Brigham's physical impairment as both Classes 4 and 5. The doctor

again described Brigham as totally disabled, but noted in the

"Remarks" section that he could re-enter the workforce "with

appropriate part-time job and available transportation."

– January-February 1996. Brigham reported that his daily

activities remained "limited" because of muscle pain and that he

was no longer able to independently transfer into or out of his

current vehicle. Noting that he needed a lift-equipped van "in

order to attempt to either re-enter the work force or acquire

appropriate professional re-training," he proposed that Sun Life

buy out his disability coverage so that he could purchase a van as

soon as possible. Brigham ultimately rejected as inadequate Sun

Life's approximately $52,000 settlement offer.

– November 1996. Dr. French's fifth APS again reported

Brigham's progress as "unchanged," but this time he classified his

physical impairment as Class 4. The doctor stated that a job

-8-
modification would enable Brigham to work "[t]o some extent," and

in the "Remarks" section he wrote: "patient has use of upper body

– transportation to and from a worksite would need to be addressed,

as would assistance with transfers."

– June 1997. Dr. French submitted his sixth APS, in which he

again checked off the boxes indicating that Brigham's condition was

unchanged and that he had a Class 4 impairment. In the impairment

section, he noted that "[t]ransferring is often painful and

therefore difficult and slow. Transportation is prob." The doctor

checked neither "yes" nor "no" in the section that asked if a job

modification would enable Brigham to work with his impairment. He

did, however, check "no" when asked if Brigham was now totally

disabled from "[a]ny other job."

– January 1998. Dr. French's seventh APS repeated the

"unchanged" condition and Class 4 impairment notations. In a

section labeled "Limitations," Dr. French reported that Brigham

could sit 5-10 hours in a normal day, drive 1-3 hours, and use his

hands for grasping and fine manipulating. He also listed Brigham

as able to bend, twist his body, push, pull, grasp and reach

between 1% and 33% of the time during the day, and stated that he

could lift a maximum of ten pounds. Asked on the form whether

Brigham could work within these limitations, Dr. French checked the

box for "part time" and added "possibly." He gave the same

-9-
response to the question whether Brigham could work in another

occupation part time.

That same month, Brigham completed a "Claimant Activity

Questionnaire" in which he explained that large portions of his day

were consumed by eating, resting, and matters of personal hygiene.

He shopped twice a week with others, sometimes made phone calls

related to his volunteer work for a non-profit organization, read

the newspaper and watched television news, and sometimes ran

errands with the help of a neighbor or friend. On weekends, he

more frequently had visitors. He reported that his balance in his

wheelchair was "poor[,] so I can't do much from a sitting

position," and he noted that his back and neck become stiff from

sitting in the wheelchair, requiring a short afternoon nap. He

stated:

I am able to transfer into and out of my car but it takes
a great deal of energy and my joints and muscles usually
ache as a result. If I try to do too much I usually
can't get out of bed easily the following day.

– October-December 1998. On October 27, Sun Life sent Brigham

a letter explaining that his sixty months of "own occupation"

benefits were about to expire and that, to continue receiving long-

term disability payments, he would need to provide evidence of

total disability from any occupation. Dr. French's eighth and

final APS followed. Once again, Dr. French described Brigham's

condition as unchanged and designated his physical impairment as

Class 4. He repeated his earlier assessment regarding Brigham's

-10-
ability to sit and drive, as well as his judgment of Brigham's

ability to twist, push, pull and reach (repeating his earlier

percentage estimates, but increasing Brigham's maximum ability to

grasp objects from 33% of the day to 66% of the day). In the only

other changes from the Limitation section on the January APS, he

omitted any notation on Brigham's ability to bend (one of the

choices was "0%"), and checked neither "yes" nor "no" beside the

entries for his ability to use his hands to grasp or manipulate

with precision. He also left blank the space for Brigham's maximum

lifting capacity.

In the sections on Brigham's work capabilities and prognosis,

Dr. French stated that Brigham was "not at all" capable of working

within the limitations noted on the form, that he was not capable

of another occupation on even a part-time basis, and that he was

"permanently disabled" (emphasis in original).

– January-March 1999. In response to Sun Life's request for

more medical information, Dr. French in January sent copies of his

handwritten notes and other reports from his file. In March, a Sun

Life medical consultant who filled out a Medical Review form

referred to a few items from Dr. French's difficult-to-read

handwritten notes, including his July 1998 statement that Brigham

was swimming every day and a May 1998 statement that Brigham was

"finishing building [a] new house." The consultant noted that Dr.

French in June 1997 reported that Brigham was not totally disabled

-11-
from any occupation but in December 1998 stated that he was

permanently totally disabled. The final notation on the Medical

Review form stated: "appears he's not restricted from sedentary

work."

– June-August 1999. The insurer secured a Transferable Skills

Analysis ("TSA"), which was completed by a vocational counselor

primarily based on Dr. French's reports. The TSA report concluded

that Brigham could perform sedentary work. Under the heading

"Functional Capacities," the report, received on June 15, stated:

He may work five to ten hours a day without limitation on
grasping and fine manipulation, and may drive from one to
three hours daily. He must avoid all squatting,
climbing, balancing, kneeling, and crawling. However, he
may be required to occasionally bend, twist his body,
push, pull, and reach.

The report also noted that Brigham's lifting limitation was ten

pounds. The vocational counselor concluded that these limitations

were "approximately equivalent" to the definition of sedentary work

contained in the Dictionary of Occupational Titles:

Sedentary Work Exerting up to 10 pounds of force
occasionally [up to 1/3 of the time] . . . or a
negligible amount of force frequently . . . to lift,
carry, push, pull, or otherwise move objects, including
the human body. Sedentary work involves sitting most of
the time, but may involve walking or standing for brief
periods of time. Jobs are sedentary if walking and
standing are required only occasionally and all other
sedentary criteria are met.4

4
Although the dictionary definition included the ability to
walk or stand one-third of the time, the skills analysis was
adjusted to account for Brigham's paraplegia. In addition,
although the definition includes the ability to exert a negligible

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The report identified twenty-one jobs for which Brigham was

qualified, at least several of which required no travel other than

to and from the workplace, and involved primarily verbal or

telephone communication and computer skills.

On the day that it received the TSA report, Sun Life sent

Brigham's attorney a letter reporting its conclusion that Brigham

was not totally disabled from any occupation and thus was no longer

eligible for benefits. A series of letters among Sun Life, Dr.

French and Brigham's attorney followed. Dr. French sent a brief

letter contesting Sun Life's conclusion.5 In August, Sun Life's

claims administrator informed the attorney that an appeal required

submission of "objective medical evidence in support of continuing

total disability," explaining that such evidence would include

"medical records, diagnostic test results and hospital records,

which document the presence of a condition to the extent it would

be disabling, from December 18, 1998 to the present." The

amount of force "frequently," the vocational counselor who wrote
the report recognized that Brigham could push, pull, reach and
similarly move only "occasionally" – consistent with Dr. French's
opinion that he could do such movements between 1% and 33% of the
time.
5
To support his view, Dr. French repeated almost verbatim the
observations he had made when Brigham's benefits were temporarily
terminated in early 1995: "Mr. Brigham's muscular-skeletal
condition is fragile, his ability to transfer is severely limited,
and is possible only with assistance and then with discomfort . .
. . Mr. Brigham is in a continuous state of total incapacity to
perform the duties of any assignment given the disabilities
described above."

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administrator also sent a letter to Dr. French, dated August 24,

asking for "any specific measures or any objective test results in

your file that may provide information on the nature of his

condition since June 1992."6 Dr. French subsequently spoke by

phone with the claims administrator and then sent back a copy of

her letter with a handwritten notation at the bottom indicating

that a neurological evaluation would be obtained to answer the

questions raised in the letter.7

– September 1999-January 2000. By the end of the appeal

period, Brigham had submitted the following materials in support of

his claim: (1) Dr. French's June 28th letter disagreeing with Sun

Life's determination that Brigham was not fully disabled; (2) a

letter from the neurologist, Dr. Reinert, dated September 9, 1999,

6
The letter also noted that Brigham had been using a
wheelchair for more than 25 years, that the TSA reported available
job opportunities, and that the doctor's notes indicated that the
year before Brigham had been swimming every day and finishing
building a new house.
7
Appellant asserts that Dr. French's notes reflect the
administrator's commitment to arrange for the evaluation. We think
that, in context, this is an unreasonable reading of the notes.
The notation begins "Discussed with [using a form of shorthand for
"with"], and then a name written on the same line – perhaps "Anita"
– is crossed out. Below it is the name "Alice Kern." On the next
line, the notation reads: "will get Nero Eval and send it to answer
above ?s." We construe this message – sent to Sun Life – to say
that Dr. French had discussed with Alice Kern that he would get a
neurological evaluation and would send it to answer the questions
posed in Sun Life's letter. This understanding of the notation is
reinforced by the fact that such an evaluation was sent to Sun Life
by Brigham's attorney.

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echoing the conclusion that Brigham was totally disabled;8 (3)

affidavits from Brigham's mother, father, aunt (who also was his

personal attendant), and a family friend describing his physical

limitations;9 and (4) an approval notice from the Massachusetts

8
The district court noted that Dr. Reinert, who first treated
Brigham after his 1972 accident, offered his opinion in "almost
entirely conclusory terms":

[Brigham] feels, and rightly so in my opinion, that the
physical problems resulting from those three years of
employment have left him totally disabled insofar as he
can no longer accomplish, on a regular schedule, what he
could previously do. For example, . . . it takes him
much longer to accomplish such things as management of
bladder and bowel function as well as proper skin care
management. At the time that he developed the left flank
pain he also noted pain in his right shoulder area,
making it more difficult for him to frequently lift his
wheelchair into and out of the car. Were he in his early
20's instead of his late 30's at the time that this
happened he may have been able to recover from the
problem that developed in 1992. But with the gradual
decline in physical capabilities which we all experience
as we get older, in Brad's case superimposed on the
significant disability of being paraplegic, he had been
unable to recover to the level of function pre-1992. His
problem is quite self evident and I feel that any
additional studies to further evaluate the problem would
be superfluous and unnecessary.

9
These affidavits included the following comments: "From my
day-to-day observations of Bradley I believe he is totally disabled
in that he cannot perform routine tasks on a regular, consistent
basis without experiencing pain or some level of discomfort . . .
. If he tries to do too much physical activity then he is either in
pain or discomfort several days after." (Lillian Brigham,
appellant's mother); "I would characterize his physical state as
fragile and his muscular condition as tentative and day-to-day. He
seldom has back-to-back days when he is pain-free and able to move
about comfortably. . . . Based upon my daily observations from
helping him for several years I would say that Bradley is fully
disabled and incapable of even part-time employment." (Althea

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Division of Medical Assistance for 20 hours per week of assistance

with daily tasks.

In a letter dated January 28, 2000, Sun Life informed

Brigham's attorney that it was reaffirming its earlier decision to

terminate benefits, stating that "the information submitted did not

provide objective medical support that Mr. Brigham is unable to

perform the duties of any occupation for which he is reasonably

qualified." The letter referred to Dr. French's earlier opinions

that Brigham could perform sedentary work, the notes indicating

that he was swimming every day and building a house, the TSA, and

the Medical Record Review.

Brigham then filed this lawsuit claiming that Sun Life's

denial of benefits violated his rights under ERISA and state law.

See 29 U.S.C. § 1132(a)(1)(B). The district court ruled that the

state law claims were preempted by ERISA. After a thorough review

of the record evidence, the court concluded that the undisputed

facts could not support a rational determination that Sun Life

acted arbitrarily, see Leahy v. Raytheon Co., No. 02-1215, slip op.

at 12 (1st Cir. Dec. 17, 2002), and it therefore entered summary

judgment on behalf of the insurer. This appeal followed.

II. Standard of Review

In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989), the Supreme Court directed that "a denial of benefits

Brigham, aunt and personal attendant).

-16-
challenged under § 1132(a)(1)(B) is to be reviewed under a de novo

standard unless the benefit plan gives the administrator or

fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the plan." See also Rush

Prudential HMO, Inc. v. Moran, 122 S. Ct. 2151, 2170 (2002) ("[A]

general or default rule of de novo review could be replaced by

deferential review if the ERISA plan itself provided that the

plan's benefit determinations were matters of high or unfettered

discretion[.]"). We have "steadfastly applied Firestone to mandate

de novo review of benefits determinations unless 'a benefits plan

. . . clearly grant[s] discretionary authority to the

administrator,'" Terry v. Bayer Corp., 145 F.3d 28, 37 (1st Cir.

1998) (quoting Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986

F.2d 580, 583 (1st Cir. 1993)). When the grant of discretionary

authority is found, we apply a deferential arbitrary and capricious

standard of judicial review. Id. (citing Recupero v. New England

Tel. and Tel. Co., 118 F.3d 820, 827 (lst Cir. 1997)).

While the choice of standards is clear-cut, there remains

considerable debate over what language constitutes a sufficiently

clear grant of discretionary authority to transform judicial review

from de novo to deferential. In Herzberger v. Standard Ins. Co.,

205 F.3d 327, 331 (7th Cir. 2000), Chief Judge Posner proposed

model "safe harbor" language for inclusion in ERISA plans that

could leave no doubt about the administrator's discretion:

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"'Benefits under this plan will be paid only if the plan

administrator decides in his discretion that the applicant is

entitled to them.'" We wholly endorse this proposal. We

recognize, however, that "courts have consistently held that there

are no 'magic words' determining the scope of judicial review of

decisions to deny benefits," id., and until wording such as that

suggested by Judge Posner becomes standard, we must in fairness

carefully consider existing language that falls short of that

ideal. Accord Herzberger, 205 F.3d at 331 (declining to make

proposed language mandatory and accepting as sufficient, if

minimum, a less explicit standard, see infra at 19).

According to the Sun Life policy, the insurer "may require

proof in connection with the terms or benefits of [the] Policy."

It further states: "If proof is required, we must be provided with

such evidence satisfactory to us as we may reasonably require under

the circumstances" (emphasis added). Circuits that have considered

similar language view the "to us" after "satisfactory" as an

indicator of subjective, discretionary authority on the part of the

administrator, distinguishing such phrasing from policies that

simply require "satisfactory proof" of disability, without

specifying who must be satisfied. See Nance v. Sun Life Assur. Co.

of Canada, 294 F.3d 1263, 1267-68 (10th Cir. 2002) ("'Satisfactory

to Sun Life' . . . adequately conveys to the Plan participants and

beneficiaries that the evidence of disability must be persuasive to

-18-
Sun Life."); Ferrari v. Teachers Ins. and Annuity Ass'n, 278 F.3d

801, 806 (8th Cir. 2002) (describing plan as stating that "proof

must be satisfactory to [the administrator]"); Herzberger, 205 F.3d

at 331 (describing the "satisfactory to us" language in Donato v.

Metropolitan Life Ins. Co., 19 F.3d 375, 379 (7th Cir. 1994), as

"indicat[ing] with the requisite if minimum clarity that a

discretionary determination is envisaged"); cf. Perugini-Christen

v. Homestead Mortgage Co., 287 F.3d 624, 626-27 (7th Cir. 2002) (no

discretionary review when policy stated applicant must submit

"satisfactory proof of Total Disability to [the insurer]"); Walke

v. Group Long Term Disability Ins., 256 F.3d 835, 839-40 (8th Cir.

2001) (same where benefits would be paid if insured "submits

satisfactory proof of Total Disability to [insurer]"); Kinstler v.

First Reliance Standard Life Ins. Co., 181 F.3d 243, 251-52 (2d

Cir. 1999) (same where policy requires insured to "submit[]

satisfactory proof of Total Disability to us"); Kearney v.

Standard Life Ins. Co., 175 F.3d 1084, 1089-90 (9th Cir. 1999) (en

banc) (same where policy stated that insurer would pay disability

benefits "upon receipt of satisfactory written proof that you have

become DISABLED").

Only the Sixth Circuit, by an 8-6 en banc vote, has held that

discretionary review is triggered by language requiring

"satisfactory proof" without specification of who must be

satisfied. See Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556-58

-19-
(6th Cir. 1998) (en banc).10 And only one circuit, the Second, has

suggested – in dicta – that even "satisfactory to us" language may

be inadequate to convey discretion. See Kinstler, 181 F.3d at 252.

This we view as the present state of the law. We now turn to the

state of the record in this case.

Throughout the proceedings in district court, Brigham assumed

that the arbitrary and capricious standard applied, never arguing,

as he does now,11 that the policy language was insufficiently

explicit to trigger discretionary review. Indeed, on more than one

occasion, appellant's counsel expressly identified the issue in the

case as whether Sun Life's decision was arbitrary and capricious.

In light of the precedent described above, we do not feel compelled

to depart from the well worn principle that "'arguments not

seasonably raised in the district court cannot be raised for the

first time on appeal,'" Nyer v. Winterthur Int'l, 290 F.3d 456, 460

(lst Cir. 2002) (quoting Corrada Betances v. Sea-Land Serv., Inc.,

248 F.3d 40, 44 (lst Cir. 2001)); see also Airport Impact Relief,

Inc. v. Wykle, 192 F.3d 197, 205 n.3 (lst Cir. 1999)("Amici cannot

interject into a case issues which the litigants have chosen to

ignore.").

10
The relevant plan language stated that "[the insurer] shall
have the right to require as part of the proof of claim
satisfactory evidence . . . that [the claimant] has furnished all
required proofs for such benefits."
11
He is joined in this argument on appeal by amicus AARP.

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 It may well be that an increasing recognition of the need for

the clearest signals of administrative discretion portends a future

consensus requiring greater precision. But that consensus does not

yet exist. Indeed, with the possible exception of the Second

Circuit in dicta, no federal appeals court has viewed the type of

language at issue in this case as inadequate to confer discretion

on the plan administrator. Were we to consider ruling otherwise,

we would undertake a thorough exploration of the issue. As matters

stand, the widespread acceptance of the view that the language here

triggers discretionary review assures us that adhering to our

raise-or-waive rule results in no injustice in this case.

We therefore move on to consider only whether Sun Life's

decision to terminate Brigham's benefits was arbitrary and

capricious. We must view this question through the summary

judgment lens, leading us to examine specifically "whether the

aggregate evidence, viewed in the light most favorable to the non-

moving party, could support a rational determination that the plan

administrator acted arbitrarily in denying the claim for benefits."

Leahy, slip. op. at 12.

III. The Termination of Benefits

As indicated at the outset of this opinion, we have concluded

that a rational decision-maker could not find, on this record, that

Sun Life lacked a reasonable basis for its determination that

Brigham could return to work in a sedentary position. This

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conclusion is especially clear with respect to part-time work. See

Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (lst Cir.

1998) (capacity to work part-time supports finding that claimant

was not "totally disabled from any occupation"). Although we

confess considerable ambivalence about whether Brigham should be

expected to return to the workforce, we nonetheless believe, for

the reasons that follow, that Sun Life cannot be found to have

violated ERISA for reaching the decision it did. We first consider

the record evidence on which Sun Life relied and then address

several particular challenges to the insurer's decision-making.

A. Evidence in the Record

Unquestionably, the most significant evidence in the record is

the series of Attending Physician Statements from Dr. French. In

each report before the last two, Dr. French opined that Brigham

could return to work part-time, with re-training, so long as his

job did not require transfers into and out of his car. The next-

to-last report, in January 1998, stated that Brigham "possibly"

could resume part-time work. Only in the last report - filed after

Sun Life notified Brigham that he needed to prove inability to work

at any occupation - did Dr. French assert that Brigham was "not at

all" capable of working on even a part-time basis. In that same

APS, however, Dr. French continued to classify Brigham's physical

impairment as Class 4, seemingly indicating his ability to do

-22-
sedentary work.12 The doctor repeated his earlier assessment that

Brigham could sit 5-10 hours and drive 1-3 hours in a normal day

and rated him as capable of a wide range of physical movements at

least a small percentage of the time. Each APS throughout the

five-year period noted that Brigham's condition remained unchanged

from the previous report.

Thus, Dr. French's medical reports did not reflect a decline

in Brigham's physical condition from the time he became disabled in

1993. Despite Sun Life's request for objective medical evidence to

substantiate the doctor's assertion in December 1998 that Brigham

no longer was capable of the sedentary work the doctor earlier had

deemed feasible, no reports of any kind were submitted based on

either recent examinations or clinical tests showing progressive

loss of abilities. Dr. Reinert's assessment adds little; he noted

that "the gradual decline in physical capabilities which we all

experience as we get older, . . . superimposed on the significant

disability of being paraplegic," rendered Brigham unable to recover

to his level of function before the 1992 muscle strain. But Dr.

French's reports consistently had indicated that Brigham retained

at least part-time sedentary employment capabilities after his 1992

injury. And the TSA identified a number of sedentary jobs that

12
Brigham's argument that Dr. French's "Class 4" evaluation
relating to sedentary activity does not signify an ability to do
sedentary work is meritless given the employment context and the
reference in the "Physical Impairment" section of the APS to the
Federal Dictionary of Occupational Titles.

-23-
appeared suitable in that they largely required phone calling or

counseling in a single location.13

To be sure, the record also contained significant evidence of

the daily challenges Brigham faced as a paraplegic with ongoing

issues of muscle strain and pain. The affidavits from family and

friends emphasized the pain that typically accompanied or followed

physical activity, and his own reports described the substantial

effort required to accomplish basic daily tasks. We think it

beyond question that a return to work would add a substantial

burden to Brigham's already difficult life. Yet we cannot say that

the insurer was required to conclude, on the medical evidence

provided, that that burden rendered him totally disabled, i.e.,

physically unable to work on even a part-time basis. Nor do we

think any reasonable factfinder could reach such a result. See

Vlass v. Raytheon Employees Disability Trust, 244 F.3d 27, 30 (lst

13
Among the positions noted were: (1) correctional-treatment
specialist, essentially a counselor within a prison setting whose
primary activity is communication verbally with inmates and others;
(2) vocational rehabilitation counselor, in which the primary
activities are "verbal interaction with the clients, some computer
interface, and telephone contact with clients and others"; and (3)
program specialist within an employee assistance program, whose job
is to

coordinate the delivery of services to covered employees,
receiving calls from the employees and connecting them
with appropriate community services. [Program
specialists] then oversee the delivery of services within
the parameters of the coverage. The work is entirely
sedentary and requires virtually no travel, since most is
performed by phone and on computer within a stationary
office.

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Cir. 2001) ("[T]he existence of contradictory evidence does not, in

itself, make the administrator's decision arbitrary."); Sullivan v.

Raytheon Co., 262 F.3d 41, 52 n.8 (lst Cir. 2001) (same). The

insurer's decision to look beyond the subjective conclusions of

family and others close to him - and beyond his doctors'

unelaborated conclusions – to the specific abilities listed on Dr.

French's medical forms was not inevitable, but neither was it

arbitrary. That the TSA report offered a number of employment

possibilities for an individual with those abilities underscores

the reasonableness of Sun Life's decision.

Brigham argues, however, that Sun Life's decision was flawed

because it was improper for the insurer to rely on the absence of

"objective medical evidence" and because the insurer failed to

obtain an independent medical evaluation to counter Dr. French's

conclusion of total disability. We turn now to those issues.

B. Objective Medical Evidence

In rejecting Brigham's appeal of its benefits termination

decision, Sun Life pointed to the lack of "objective medical

support" for the assertion that he is totally disabled from any

occupation. Brigham makes a multi-pronged attack on the insurer's

reliance on the absence of "objective medical evidence," arguing

that the request for such evidence was unnecessary – as Dr. Reinert

had opined – in light of his obvious infirmity, and improper

-25-
because objective medical evidence was not expressly required by

his employee benefit plan. These arguments are unavailing.

We respond to the first argument addressed to the necessity of

additional "objective medical evidence" by stressing the

particularistic state of this record. In passing, we would note

that cases such as these are by nature very fact-oriented. We fully

recognize that laboratory tests or similar diagnostic procedures

will not always be necessary to substantiate a claim of disability,

as certain disabling conditions are not susceptible to such

objective evaluations. See, e.g., Mitchell v. Eastman Kodak Co.,

113 F.3d 433, 443 (3d Cir. 1997)("It is now widely recognized in

the medical and legal communities that 'there is no "dipstick"

laboratory test for chronic fatigue syndrome.'").

Here, however, Dr. French's opinion in the final APS that

Brigham was totally disabled for any occupation contradicted his

earlier reports, and there was no explanation for his new view,

such as evidence of specific physical changes that further limited

Brigham's capacity to work. Indeed, Dr. French repeatedly

described Brigham's condition as "unchanged." The insurer was

therefore justified in seeking some clinical explanation for the

doctor's changed perception. Had Brigham's doctors been

responsive, for example, to the claims administrator's request of

August 24, 1999, to come forward with "any specific measures" and

submitted a report of a recent physical examination that revealed

-26-
weakening muscle strength, decreasing stamina or other visible

indicators of deterioration, Sun Life could not reasonably have

relied on earlier medical reports stating that he retained the

capacity to perform sedentary work. As claimant, Brigham needed to

demonstrate his entitlement to benefits, and he therefore had the

burden of substantiating the doctors' new diagnosis that he was

incapable of performing fully sedentary work.

Brigham's argument (joined by amici) that the request for

"objective medical evidence" imposed an impermissible extra-

contractual eligibility criterion was not raised below and is

therefore waived. In the district court, Brigham did not contend

that Sun Life's request for objective medical evidence was

impermissible because it was extra-contractual, but argued instead

that he had provided sufficient evidence in support of his claim.

In any event, as our prior discussion indicates, the specific

record in this case demonstrates that Sun Life was not rejecting

Brigham's claim because of failure to satisfy a predetermined

prerequisite to eligibility, but was responding to a late-

developing and unexplained change of position on the part of

Brigham's doctor by seeking non-conclusory medical support for the

onset of total disability.

Brigham also accuses Sun Life of changing the evidentiary

standard for medical evidence because the same information that he

submitted in 1999 had been sufficient when it was submitted in 1995

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to prompt reinstatement of his benefits. For two reasons, however,

the "inconsistency" does not assist his position. First, the issue

had changed from Brigham's ability to do his own job – with the

travel requirements – to whether he could do any job. Second, the

medical information provided in 1995 – that the muscle strain

inevitably would resume with frequent transfers into and out of the

car – was linked with information from his employer that multiple

transfers would be required. The same medical evidence did not

explain why, in 1999, Brigham could not do a job that had no travel

requirements. Thus, the record shows that Sun Life did not

arbitrarily demand "objective medical evidence" on either occasion,

but sought evidence in addition to his doctor's inconsistent or

unexplained conclusions. The request for more information was

particularly reasonable in 1999 in light of the doctor's prior

contrary assessments of his part-time work abilities.

C. Independent Medical Review

Brigham also suggests that it was improper for Sun Life to

reject his own doctors' conclusions without obtaining an

independent medical evaluation. Sun Life, however, accepted the

limitations identified by Dr. French and adopted Dr. French's

earlier judgment that those limitations did not prevent Brigham

from all types of work. As Sun Life did not disagree with the

claimant's proffered diagnosis, it had no obligation to obtain its

own medical evidence. Cf. House v. Paul Revere Life Ins. Co., 241

-28-
F.3d 1045, 1048 (8th Cir. 2001) (insurer that possessed "not even

a scintilla of [contrary] evidence" not entitled to discount

claimant's doctor's extensive evidence of severe heart disease

without conducting independent medical examination). Although the

final medical consultant's report was brief, it reflected a review

of the materials submitted by Brigham, particularly Dr. French's

most recent physician statements. Further medical information

would have been illuminating, but it was up to Brigham to explain

why Dr. French's quantitative assessments of his physical abilities

were no longer an accurate indicator of his ability to work.

IV. Conclusion

The question we face in this appeal is "not which side we

believe is right, but whether [the insurer] had substantial

evidentiary grounds for a reasonable decision in its favor."

Doyle, 144 F.3d at 184. We share the district court's sentiment

that this is a difficult case because of "the obvious courage

plaintiff has shown in facing his disability," 183 F. Supp.2d at

438.

Beyond this, it seems counterintuitive that a paraplegic

suffering serious muscle strain and pain, severely limited in his

bodily functions, would not be deemed totally disabled. Moreover,

it seems clear that Sun Life has taken a minimalist view of the

record. But it is equally true that the hurdle plaintiff had to

surmount, establishing his inability to perform any occupation for

-29-
which he could be trained, was a high one. As to that issue, we

have to agree with the district court that the undisputed facts of

record do not permit us to find that Sun Life acted in an arbitrary

or capricious manner in terminating appellant Brigham's benefits.

Affirmed.

Concurrence and dissent follows.

-30-
 STAHL, Senior Circuit Judge, concurring in part and

dissenting in part. I concur in Judge Coffin's opinion that the

standard of review in this matter is arbitrary and capricious.

Given the facts of this case, however, I have difficulty concluding

that Sun Life's actions were not arbitrary and capricious. While

the evidence as to the permanence of Brigham's disability is not

without some question, there was significant and unrebutted

evidence that in his current condition he was unable to work

consistently. Cf. Williams v. Int'l Paper Co., 227 F.3d 706, 712

(6th Cir. 2000) (court held that plan administrator acted

arbitrarily and capriciously when it failed to consider relevant

evidence of claimant's physical condition). Brigham's life was not

that of a malingerer. Affidavits submitted by members of Brigham's

family indicated that if he engaged in much activity on one day, he

would be in pain or discomfort on subsequent days, making it

difficult for him to leave his bed. In short, Brigham hardly seems

to be a person capable of sustaining regular employment. Moreover,

the Social Security Administration, presumably using the same

information, found that Brigham was disabled. See Mitchell v.

Eastman Kodak Co., 113 F.3d 433, 440 (3d Cir. 1997) (in concluding

that plan administrator's denial of benefits was arbitrary and

capricious, court noted Social Security Administration's

determination that claimant could not work). One would think that

this finding, coupled with the affidavits from Brigham's family and

-31-
the reports from his doctor that he was totally disabled, would

have prompted Sun Life to seek an independent examination of

Brigham's condition before making the final decision to deny his

benefit. Since the standard set forth in the policy --

"satisfactory to us" -- leaves the question of the degree of

evidence solely up to Sun Life, I believe its decision to deny

benefits in this case was arbitrary and capricious.

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