Lopes v. Metropolitan Life Insurance

United States Court of Appeals
For the First Circuit

No. 02-2273

GEORGE LOPES,

Plaintiff, Appellant,

v.

METROPOLITAN LIFE INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Lynch, Circuit Judge,
Bownes, Senior Circuit Judge,
and Howard, Circuit Judge.

Howard I. Rosen, with whom Newman & Newman, P.C. were on
brief, for appellant.
Stephen S. Churchill, with whom James F. Kavanaugh, Jr. and
Conn, Kavanaugh, Rosenthal, Peisch & Ford, LLP were on brief, for
appellee.

June 9, 2003
 HOWARD, Circuit Judge. Plaintiff-appellant George Lopes

appeals from an adverse summary judgment ruling holding that

defendant-appellee Metropolitan Life Insurance Company ("MetLife")

did not violate the Employment Retirement Security Act of 1974

("ERISA"), 29 U.S.C. §§ 1001-1461, in terminating his long-term

disability benefits. We affirm.

I.

Lopes began working at Fischbach Corporation in 1969. He

eventually became a Signal Project engineer, supervising the

installation of signal and electrical equipment. While employed at

Fischbach, Lopes was enrolled as a participant in the MetLife-

sponsored Fischbach Group Insurance Plan ("the Plan"). The Plan

provides for long-term disability benefits for the first twenty-

four months of disability if a physical impairment prevents the

employee from working in his regular occupation. To qualify for

benefits after that period, the plan participant must either be

"completely and continuously unable to perform the duties of any

gainful work or service for which [he is] reasonably qualified

taking into consideration [his] training, education, and experience

and past earnings," or have suffered a 50% (or more) loss of

earnings capacity.

In early 1996, Lopes was diagnosed with stage IV

pulmonary sarcoidosis, a chronic inflammation of the lungs. Lopes

stopped working at Fischbach on February 20, 1996, and shortly

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thereafter filed for long-term disability benefits under the Plan.

On May 28, 1996, Lopes underwent a right lung transplant.

Subsequently, Lopes' attending physician, Dr. Lynda Cristiano,

filed a statement with MetLife characterizing Lopes' impairment as

"Class 5" (on a scale from 1 to 5) and totally disabling.1

Nonetheless, Dr. Cristiano also opined that Lopes was a "suitable

candidate for future rehabilitation." MetLife began paying Lopes

benefits on August 18, 1996.

During the next two years, Lopes received disability

payments from the Plan and followed a rehabilitation program. But

Lopes' health was precarious: he underwent several bronchoscopies,

lung tissue biopsies, and was twice hospitalized for possible

pneumonia or infection. Lopes also suffered from "post right lung

transplant," sarcoidosis, hypertension, hypercholesterol, diabetes

mellitus, right bronchial stenosis, and renal failure.

Consequently, he required ongoing medical supervision and several

medications.

Between 1997 and 1999, Drs. Edward P. Ingenito and Aaron

Deykin (who were then treating Lopes) submitted to MetLife two

physician's statements in which they characterized Lopes'

impairment as "Class 5" and totally disabling. During this same

period, they also completed several physical capacities evaluations

1
A person with a Class 5 impairment has "a [s]evere limitation of
physical capacity" and is "incapable of minimum ([]sedentary) activity."

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in which they indicated that Lopes' physical abilities were

limited. Over time, however, these evaluations did note

improvement in his ability to lift and carry objects and to perform

other everyday physical activities such as grasping, bending, and

reaching above shoulder level.

Under the Plan, MetLife reevaluated Lopes' eligibility

for continued benefits after twenty-four months. At that point,

MetLife's definition of disability became more spartan:

However, after the first 24 months of benefit payments,
you must also be completely and continuously unable to
perform the duties of any gainful work or service for
which you are reasonably qualified taking into
consideration your training, education, and experience
and past earnings.

In short, Lopes would only continue receiving benefits if his

illness prevented him from performing any job that matched his

skill set.

On October 3, 2000, Dr. Ingenito submitted the final

physician's statement MetLife received before terminating Lopes'

benefits. For the first time, Dr. Ingenito characterized his

physical impairment as "Class 4," which signifies a "moderate

limitation of functional capacity," and implies a capability to

engage in "clerical/administrative ([]sedentary) activity."2

2
The Dictionary of Occupational Titles contains the following
definition of sedentary work:

S-Sedentary Work--Exerting up to 10 pounds of
force occasionally (Occasionally: activity or
condition exists up to 1/3 of the time) and/or a

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Nevertheless, despite describing the impairment as "Class 4," Dr.

Ingenito opined that Lopes remained "totally disabled" from

performing his former occupation and any other work, and that he

lacked prospects for significant improvement.

On February 7, 2001, MetLife wrote Lopes and advised him

that it had terminated his disability benefits on January 31, 2001.

The letter explained that Lopes was no longer totally disabled

under the Plan based on Lopes' most recent medical information, a

vocational assessment, and all of the medical evidence contained in

Lopes' file. MetLife relied heavily on Dr. Ingenito's report in

explaining its decision:

You can lift and carry up to twenty pounds frequently, you
can bend and reach above shoulder level frequently, you can
squat, crawl, climb, occasionally, operate a motor vehicle,
and use both your hands to perform repetitive fine finger
movements, eye/hand movements and pushing and pulling.
[Dr. Ingenito] states that in regards to physical
impairment you have moderate limitation of functional
capacity, you are capable of clerical/administrative work,
sedentary activity.

negligible amount of force frequently (Frequently:
activity or condition exists from 1/3 to 2/3 of
the time) 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.

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Citing a "transferable skills analysis" completed by a vocational

skills consultant, the letter identified several occupations for

which Lopes qualified.3

Although not mentioned in the letter, MetLife also

considered an analysis of Lopes' vocational prospects conducted by

Dr. R. Kevin Smith, a board-certified Doctor of Osteopathy in

Preventative and Occupational Medicine. Dr. Smith did not

personally examine Lopes, but rather based his evaluation on the

information in MetLife's file, including the physicians' reports

and the vocational assessment. Smith concluded that Lopes'

physical condition had stabilized and that Lopes was capable of

performing a full-time sedentary job.

Lopes appealed MetLife's decision to terminate his

benefits by letter dated August 10, 2001. Lopes attached to his

letter a list of eleven medications and supplements that he was

taking regularly, and promised to submit additional medical

information. On October 3, 2001, MetLife denied Lopes' appeal. In

its denial, MetLife reiterated its rationale for terminating Lopes'

benefits, placing particular emphasis on Lopes' apparent ability to

3
The analysis considered whether there were any jobs within a 60-
mile radius of Lopes' residence that he could perform given his physical
impairment and qualifications (i.e., his completion of high school, a
certificate from Coyne Electrical School, and experience with electrical
power generators while in the United States Army Reserve). Based on
Lopes' skills, the occupations identified included, but were not limited
to, "Controls Designer," "Logistics Engineer," "Specification Writer,"
and "Dispatcher."

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engage in sedentary activity. MetLife also noted that,

notwithstanding Lopes' promise to submit additional materials,

"there were no current medical records in file."

Subsequently, Lopes sued MetLife in Massachusetts

superior court, claiming that MetLife's decision to terminate his

benefits violated state statutory and common law. On February 22,

2000, MetLife removed this matter to the United States District

Court for the District of Massachusetts on the basis of ERISA

preemption. See Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58,

66-67(1987). Lopes then amended his complaint to allege a

violation of ERISA § 1132(a)(1)(b).4 In due course, the parties

cross-moved for summary judgment.

Because the Plan vests discretionary authority in MetLife

to determine eligibility for benefits or to construe its terms,5

4
Section 502 states, in pertinent part:

(a) A civil action may be brought-
(1) by a participant or beneficiary-
...
(B) to recover benefits due to him under the terms of his
plan, to enforce his rights under the terms of the plan,
or to clarify his rights to future benefits under the
terms of the plan;
...
5
The relevant provision of the Plan states:

In carrying out their respective responsibilities
under the Plan, the Plan administrator and other Plan
fiduciaries shall have discretionary authority to
interpret the terms of the Plan and to determine
eligibility for and entitlement to Plan benefits in

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the district court first determined that it would not upset

MetLife's termination of Lopes' benefits unless it found the

termination to be arbitrary and capricious. See Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989)(directing courts to

accord deference to benefit determinations made under plans that

vest discretionary decision-making authority in their

administrators). In so ruling, the court rejected Lopes' arguments

in favor of de novo review, that MetLife (1) acted under a conflict

of interest as both the insurer and plan administrator, and (2)

acted with improper motivation in terminating his benefits. See

Pari-Fasano v. ITT Hartford Life & Accident Ins. Co., 230 F.3d 415,

419-20 (1st Cir. 2000)(rejecting an argument in favor of a less

deferential standard of review in similar circumstances, but

emphasizing that dual role evidence or evidence of improper

motivation would factor into the functionally equivalent inquiries

into whether the administrator's decision was "arbitrary and

capricious," an "abuse of discretion," or "unreasonable"). The

court then determined that, based on the evidence that was before

it, MetLife acted reasonably in terminating Lopes' benefits.

accordance with the terms of the Plan.
Any interpretation or determination made pursuant
to such discretionary authority shall be given full
force and effect, unless it can be shown that the
interpretation or determination was arbitrary and
capricious.

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Accordingly, the court granted MetLife's cross-motion for summary

judgment and denied Lopes' cross-motion. This appeal followed.

II.

On appeal, Lopes renews his arguments in favor of de novo

review and urges us to consider evidence outside the administrative

record. Alternatively, Lopes contends that MetLife's decision was

erroneous even under a more deferential standard of review. We

reject Lopes' arguments for de novo review without further

elaboration because they are precluded by settled circuit

precedent. See Pari-Fasano, 230 F.3d at 419-20; see also supra at

7 (summarizing Pari-Fasano's explanation how benefits

determinations are to be reviewed in circumstances such as this).6

We also reject Lopes' argument in favor of supplementing the

administrative record with additional medical evidence. Finally,

we reject Lopes' attack on the merits of MetLife's decision. While

the evidence before MetLife did not compel a conclusion that Lopes

could return to work, it was of such a nature as to render the

conclusion a permissible exercise of MetLife's discretion.

Before addressing the merits of MetLife's decision, we

first address Lopes' argument that, given MetLife's potential bias,

6
In so ruling, we further note that Lopes' "improper motivation"
evidence -- a MetLife document observing that the termination of Lopes'
benefits would save $174,000 -- is not particularly convincing.
Obviously, the termination "saved" MetLife the money it had allocated
to paying Lopes' benefits after January 31, 2001, and we see nothing
untoward in a MetLife employee documenting that fact.

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we should consider evidence not before the plan administrator at

the time of the challenged decision: an affidavit from another

physician and a medical note written several weeks after MetLife's

final determination. In reviewing an ERISA determination for

arbitrariness, we and the overwhelming majority of other circuits

have held that there is a strong presumption that the required

deferential review of a plan administrator's benefits decision

should be limited to the evidentiary record presented to the

administrator. See Liston v. UNUM Corp. Officer Severance Plan,

No. 02-1956, -- F.3d --, sl. op. at 7-8 (1st Cir., May 27, 2003)(in

reviewing a denial of severance benefits, stating that "at least

some very good reason is needed to overcome the strong presumption

that the record on review is limited to the record before the

administrator."). Review of the administrative record for

reasonableness logically implies review of the record available to

the plan administrator; it is anomalous to suggest that an

administrator acted unreasonably "by ignoring information never

presented to it." See id. We thus affirm the district court's

decision not to include evidence outside of the claim file.

Mindful that our review for reasonableness is just that

-- "a review and not a rubber stamp," Donato v. Metropolitan Life

Ins. Co., 19 F.3d 375, 380 (7th Cir. 1994); see also Terry v. Bayer

Corp., 145 F.3d 28, 40 (1st Cir. 1998) -- we turn to the merits.

We begin with the evidence that is at the center of this dispute:

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the attending physician's reports. In all but the final

submission, Lopes' doctors opined that "he was incapable of minimum

([]sedentary) activity," and that he was totally disabled from

working. In the final report, however, while still opining that

Lopes could not work, Dr. Ingenito gave Lopes a "Class 4"

impairment classification, which implies that Lopes was capable of

sedentary activity. Moreover, at the time Dr. Ingenito submitted

the report, he also completed a physical capacities evaluation in

which he noted that Lopes could "frequently" lift and carry up to

20 pounds; "occasionally" lift and carry up to 50 pounds; and

perform simple repetitive motions such as grasping, pushing,

pulling, and fine manipulation. An endoscopy and examination

completed at that same time indicated that Lopes did not suffer

from fever or chest pain, and that Lopes' tolerance for exercise

had improved since the previous year.7 All of this evidence

supports Dr. Smith's independent conclusion that Lopes was capable

of sedentary work.8

7
Lopes had submitted a form describing his "Activities of Daily
Living" in which he claimed that he drove for short periods, took daily
walks, and played golf with a cart.
8
Lopes challenges MetLife's reliance on the opinion of an osteopath
rather than a medical doctor qualified to treat Lopes' maladies. Lopes
points out that, in Massachusetts, an osteopath may not prescribe or
administer drugs for internal use or perform operations. Mass. Gen. Laws
ch. 112, § 11. Lopes' emphasis on whether an osteopath can treat him
does not address whether a plan administrator can rely on an osteopath's
review of the record when it determines whether a plan participant is
able to perform an occupation. Surely, it may so long as the
osteopath's expertise is germane to the area of inquiry. Here, Dr.

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 To be sure, the record contains evidence that Lopes still

suffers from serious health issues. Since his operation, Lopes has

been hospitalized twice. Lopes' spouse receives almost all of his

worker's compensation benefits based on the stark discrepancy

between their life expectancies. Lopes has also been receiving

Social Security disability benefits since 1996.9 Moreover, Lopes

encounters a number of daily challenges in performing routine

chores, has a suppressed immune system,10 and has trouble sleeping

through the night. But the issue in this appeal is "not which side

we believe is right, but whether the insurer has substantial

evidentiary grounds for a reasonable decision in its favor."

Brigham v. Sun Life of Can., 317 F.3d 72, 85 (1st Cir.

2003)(quoting Doyle v. Paul Revere Life Insur. Co., 144 F.3d 181,

Smith was board certified in occupational medicine and thus competent
to assess Lopes' ability to work.
At oral argument, Lopes also suggested (for the first time) that
this court must give special weight to his treating physician's opinion
or that of a physician qualified to treat Lopes. See Leahy v. Raytheon
Co., 315 F.3d 11, 20 (1st Cir. 2002) (describing the so-called "treating
physician's rule"). But we do not address arguments first raised at
oral argument. Albion v. YMCA Camp Letts, 171 F.3d 1, 2 (1st Cir.
1999). In any event, we note that the Supreme Court has very recently
rejected the rule in ERISA cases. See Nord v. Black & Decker Disability
Plan, -- S. Ct. --, 2003 WL 21210418 (May 27, 2003).
9
It is well settled that a Social Security disability benefits
decision is relevant evidence but "should not be given controlling
weight except perhaps in the rare case in which the statutory criteria
are identical to the criteria set forth in the insurance plan." Pari-
Fasano, 230 F.3d at 420.
10
Lopes does not contend, however, that his immune system is so
compromised that it prohibits him from engaging in the human
interactions necessary to perform most sedentary jobs.

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184 (1st Cir. 1998)). Here, MetLife had grounds for concluding

that Lopes can engage in sedentary work. Accordingly, its decision

must stand.

III.

The district court's judgment is affirmed.

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