United States Court of Appeals
For the First Circuit
No. 09-1703
BARBARA GENT,
Plaintiff, Appellant,
v.
CUNA MUTUAL INSURANCE SOCIETY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Circuit Judge
Souter,* Associate Justice,
and Howard, Circuit Judge.
Jonathan M. Feigenbaum with whom Phillips & Angley, was on
brief, for appellant.
Peter E. Pederson, with whom Daniel K. Ryan, Marissa I.
Delinks and Hinshaw & Culbertson LLP, were on brief, for appellee.
July 12, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
HOWARD, Circuit Judge. This case arose after CUNA Mutual
Insurance Society ("CUNA") stopped paying long-term disability
benefits to the appellant, Barbara Gent. CUNA ceased its payments
after determining that Gent was subject to the "mental illness
limitation" in its policy. Under this limitation, an insured who
is disabled due to a mental illness may not receive disability
benefits for more than two years. Gent took several administrative
appeals of CUNA's determination, arguing that her disability was
caused by a physical condition, specifically, Lyme disease. When
these appeals were unsuccessful, Gent filed this action in federal
district court under ERISA1, claiming that CUNA had unlawfully
terminated her benefits. After reviewing the administrative
record, the district court granted summary judgment to CUNA. The
court held that the policy's mental illness limitation applied
because Gent had failed to prove that her disability was caused by
Lyme disease. This appeal ensued.
Gent's primary argument is that the district court
erroneously required her to prove that her disability stemmed from
a physical condition. In her view, the burden was on CUNA to prove
that she was disabled due to a mental illness and thus subject to
the mental illness limitation. We think that, regardless of who
bore the burden, CUNA's evidence is stronger and so affirm.
1
Employee Retirement Income Security Act of 1974, 29
U.S.C. §§ 1101-1461.
-2-
I. Facts
A. The policy
At all relevant times, Gent was employed by the Westerly
Community Credit Union as the Vice President of Operations. As a
benefit of her employment, Gent was covered under the Credit
Union's long-term disability insurance plan. Plan benefits are
paid under a long-term disability insurance policy issued by CUNA.
CUNA also administers this ERISA-governed plan.
Three aspects of CUNA's policy bear mentioning. First,
CUNA's policy provides that it will pay an insured monthly benefits
if the insured is "Disabled due to Sickness or Injury." Under the
terms of the policy, an insured is "totally disabled" if (among
other things) an injury or sickness prevents her from performing
"all of the material and substantial duties of [her] occupation on
a full-time basis because of a disability." Second, although
CUNA's policy defines sickness as an illness or disease, the policy
also contains a mental illness limitation. This limitation states
that an insured who is disabled due to a mental illness may receive
a maximum of two years of disability benefits. Finally, CUNA's
policy requires an insured who is seeking benefits to submit a
proof of claim that must include "the date the disability started;
the cause of disability; and the degree of disability."
-3-
B. The 2000 claim
In March 2000, work-related stress led Gent to see a
therapist. During her session with the therapist, Gent expressed
fears that the new president at the Westerly Community Credit Union
was trying to take responsibilities away from her and to "get me
out of there." Shortly thereafter, Gent met with her psychiatrist,
Dr. A.H. Parmentier. She informed Dr. Parmentier that work-related
stress had caused her to become depressed. In addition to
depression, Gent complained of "anxiety, sleep disturbance, poor
energy, difficulty focusing, crying spells, and [the] 'inability to
think clearly.'" After evaluating Gent, Dr. Parmentier diagnosed
her with recurrent major depression and excused her from work. In
his evaluation, Dr. Parmentier observed that Gent had a history of
depression. In 1988 she had been hospitalized for depression
triggered by work-related stress.
In June 2000, Gent submitted a claim for long-term
benefits under her policy. Filed along with her claim was a
required attending physician statement. This statement, completed
by Dr. Parmentier, listed recurrent major depressive disorder as
the diagnosis. Dr. Parmentier further indicated that Gent had a
"Class 4" mental impairment, which meant that she was "unable to
engage in stress situations or engage in interpersonal relations
(marked limitations)." No cardiac or physical impairments were
identified by Dr. Parmentier.
-4-
In August 2000, CUNA approved Gent's claim for disability
benefits. In the approval letter mailed to Gent, CUNA prominently
excerpted the mental illness limitation.
C. The administrative appeals and current lawsuit
In April 2002, CUNA sent Gent a letter informing her
that, because of the mental illness limitation, her benefits would
end in July 2002. When CUNA stopped paying benefits in July 2002,
Gent appealed, claiming that the two-year mental-illness cap on
benefits did not apply to her because her disability now stemmed
from a physical condition, specifically Lyme disease. According to
Gent, approximately one year after CUNA started paying her monthly
disability benefits (roughly June 2001) a tick bit her, infecting
her with Lyme disease. CUNA asked Dr. Scott Yarosh, a
psychiatrist, to review Gent's medical records. After review of
these records, Dr. Yarosh concluded that Gent was "psychiatrically
impaired" and that the "medical records as a whole do not document
specific criteria to suggest that there are other disabling medical
conditions." CUNA denied Gent's appeal.
From November 2002 to March 2006, Gent appealed the
adverse benefits determination five more times. Throughout the
appeals process, both Gent and CUNA supplemented the administrative
record with medical opinions from various doctors. These doctors
came to divergent conclusions, with some opining that Gent was
disabled by Lyme disease and others that Gent, if disabled, was
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disabled by a depressive disorder.2 CUNA rejected four of these
five appeals, declining to consider her fifth, the sixth overall,
on administrative exhaustion grounds.
In June 2006, Gent filed this lawsuit in federal district
court. In due course, both she and CUNA moved for summary
judgment. As already noted, the district court granted summary
judgment to CUNA, upholding the termination of disability benefits.
II. Standards of Review
We review a district court's grant of summary judgment de
novo. Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 516 (1st
Cir. 2005). When deciding whether a party is entitled to summary
judgment, we typically view the record evidence in the light most
favorable to the non-moving party, drawing all reasonable
inferences in that party's favor. Leahy v. Raytheon Co., 315 F.3d
11, 16-17 (1st Cir. 2002). Our approach is different, however, in
the ERISA benefit–denial context, where the record before us is the
same record that was before the plan administrator. Orndorf, 404
F.3d at 517. In such a case, "summary judgment is simply a vehicle
2
A report from one of these experts, Dr. Daniel A.
Kinderlehrer, is the subject of a dispute between the parties. The
report was included with Gent's final administrative appeal, which
CUNA declined to consider. Gent asserts that the district court
erred when it ignored the report. We assume for the sake of
argument that the court erred and consider the report here.
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for deciding the [benefits] issue" and "the non-moving party is not
entitled to the usual inferences in its favor." Id.3
What level of deference we must give to the plan
administrator's benefits determination is a separate issue. Where,
as here, the plan does not give the plan administrator
discretionary authority to determine eligibility for benefits or to
construe the terms of the plan, our review of the administrator's
decision is de novo. Denmark v. Liberty Life Assur. Co., 566 F.3d
1, 5-6 (1st Cir. 2009). Under this standard, "[w]e grant no
deference to the administrators' opinions or conclusions."
Richards v. Hewlett-Packard Corp., 592 F.3d 232, 239 (1st Cir.
2010).
III. Discussion
Gent argues that the district court erred when it saddled
her with the burden of proving that Lyme disease rendered her
disabled under the terms of the policy.4 In her view, the mental
illness limitation operates as would a coverage exclusion under
traditional insurance law principles. Under those principles, once
an insured has met her initial burden of proving that a claim falls
3
In Leahy, we explained that, "In an ERISA benefit denial
case, trial is usually not an option: in a very real sense, the
district court sits more as an appellate tribunal than as a trial
court." 315 F.3d at 17-18.
4
Gent may have waived this argument, as she raised it for the
first time in her motion to reconsider. See CMM Cable Rep, Inc. v.
Ocean Coast Props., Inc., 97 F.3d 1504, 1526 (1st Cir. 1996). We
overlook any waiver here.
-7-
within the grant of coverage, the burden shifts to the insurer to
show that an exclusion defeats coverage. See McGee v. Equicor-
Equitable HCA Corp., 953 F.2d 1192, 1205 (10th Cir. 1992) ("It is
a basic rule of insurance law that the insured carries the burden
of showing a covered loss has occurred and the insurer must prove
facts that bring a loss within an exclusionary clause of the
policy."); see also Glista v. Unum Life Ins. Co. of Am., 378 F.3d
113, 131 (1st Cir. 2004); GRE Ins. Group v. Metro. Boston Hous.
P'ship, Inc., 61 F.3d 79, 81 (1st Cir. 1995) (describing how
exclusions operate under Massachusetts law).
Facially, the limitation might appear to operate much
like an exclusion. The parties agreed that Gent was disabled and
was entitled to benefits whether the cause was psychological or
physical, and CUNA then tried to cut off those payments by pointing
to a time limit on payments for those disabled by mental illness
rather than by a physical cause. On the other hand, the policy,
which listed the mental illness limitation under the heading
"Benefits," required that the insured provide proof of "Disability
due to sickness or injury" that includes "the cause of disability."
One could argue that these provisions put the burden on Gent to
establish the physical or organic etiology of her disability in
order for her to be eligible to continue receiving benefits after
two years.
-8-
Be we need not pursue this issue. At least where, as
here, the burden of proof is the preponderance of the evidence
standard, how the burden is allocated does not much matter unless
one or both parties fail to produce evidence, or the evidence
presented by the two sides is in "perfect equipoise." LPP Mortg.,
LTD. v. Sugarman, 565 F.3d 28, 33 (1st Cir. 2009). Both Gent and
CUNA produced copious albeit conflicting evidence, and we do not
think it perfectly balanced. Our view is that CUNA's evidence is
stronger than Gent's evidence, and thus CUNA would prevail, whether
it bore the burden of proof or not.
Some background is in order. Lyme disease is caused by
a specific bacterium, "Borrelia burgdorferi," which normally lives
in mice, squirrels and other small animals.5 It is transmitted to
humans through the bites of particular kinds of ticks. Typically,
the first sign of infection is a circular rash called an "erythema
5
This information is taken primarily from the website of the
Center for Disease Control and Prevention ("CDC"), a U.S. federal
agency under the Department of Health and Human Services. See CDC,
Lyme Disease, http://www.cdc.gov/ ncidod/ dvbid/lyme/index.htm
(last visited June 23, 2010). It is unclear to what extent the
information on the CDC's website is formally part of the record.
Although the district court and the parties have cited to the CDC
website as authoritative, it appears that Dr. Kinderlehrer's report
is the only piece of record evidence that references the CDC
directly. This is unproblematic, as other evidence in the record
conveys most of the information that can be found on the CDC's
website. Nevertheless, to be on the safe side, we take judicial
notice of the relevant facts provided on the website, which are
"not subject to reasonable dispute." Fed. R. Evid. 201(b), (f);
see also Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003)
(taking judicial notice of information from official government
website).
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migrans," which appears at the bite site. This rash can, but need
not, take the form of a bulls-eye. Along with the rash, some
patients also experience symptoms of "fatigue, chills, fever,
headache, and muscle and joint aches, and swollen lymph nodes." If
not treated, the infection may spread to other parts of the body
and cause the following symptoms: loss of facial muscle tone, neck
stiffness, severe headaches, shooting pains that may interrupt
sleep, heart palpitations and dizziness. If further left
untreated, the infection will cause approximately sixty percent of
patients to suffer severe joint pain and swelling along with bouts
of arthritis. Months to years after an untreated infection, five
percent of patients may also develop "chronic neurological
complaints," including "shooting pains, numbness or tingling in the
hands or feet, and problems with concentration and short term
memory."
Lyme disease is diagnosed based primarily on clinical
evidence, i.e., "symptoms, objective physical findings (such as
erythema migrans, facial palsy, or arthritis), and a history of
possible exposure to infected ticks." Further laboratory testing
can be very helpful in diagnosing the disease. Among the useful
laboratory tests are blood tests which measure the presence of Lyme
antibodies in the patient's blood. When testing blood for these
antibodies, the CDC recommends that doctors follow a two-step
process. First, doctors should administer an "ELISA or IFA" test.
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If the ELISA test is positive, doctors should administer a "Western
blot test." This test will typically be positive only if a patient
has Lyme disease. According to the CDC, "[i]f the Western blot is
negative, it suggests that the first test was a false positive,
which can occur for several reasons."
We return the specifics of this case. In June 2001, Gent
reported an insect bite to a primary care physician, Dr. Lori
Drumm. Gent had large red rings on both arms.6 Dr. Drumm referred
Gent to Dr. Wendy Clough, an infectious disease specialist. During
her appointment, Gent complained of "[s]ignificant fatigue, 10-lb.
weight gain; hearing problems; dry cough, sinus pain, episodes of
chest pain and shortness of breath; [and] palpitations." Gent also
reported experiencing "achy joints over a year ago" and her medical
history revealed disrupted sleep patterns, headaches, and
lightheadedness. In June 2004, during an appointment with a
different doctor, Gent complained of fatigue, weakness, dizziness,
and "abnormal sensation of the right body."
From June 2001 to September 2003, Gent underwent a
battery of testing intended to help determine whether she had Lyme
disease. First, her blood was tested. Consistent with the two-
step process outlined by the CDC, an ELISA test was conducted in
6
It is unclear from the physician notes whether Dr. Drumm
personally observed the large red rings or whether Gent merely
reported the rings to Dr. Drumm. We will assume for the sake of
analysis that Dr. Drumm observed the rings.
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June 2001. This test was positive, and a few months later a
Western blot test was conducted. The Western blot was negative for
Lyme disease. Next, in late September 2001, Gent's cerebro-spinal
fluid ("CSF") was tested. Analysis of the CSF revealed no
antibodies associated with the disease. Following these tests,
Gent's brain and brain functioning were analyzed for signs of a
Lyme infection. A December 2002 SPECT scan7 of Gent's brain
disclosed "nonspecific perfusion defects that may be related to
Lyme disease." Later neuropsychological testing of Gent's brain
functioning yielded inconsistent results. For example, testing
conducted in January 2003 revealed deficits in Gent's attention
span and rates of learning. Nevertheless, during a
neuropsychological examination conducted in September of that year,
Gent demonstrated normal attention, concentration, and mental
stamina and showed "scattered deficits in some areas of higher
cognitive functioning . . . consistent with a functional disorder
rather than with Lyme disease."
Doctors reviewing this clinical and laboratory data
arrived at different conclusions. Among the doctors in the Lyme
disease camp were Dr. Clough, Dr. Samuel Donta (a professor of
medicine, infectious diseases, and biomolecular medicine at Boston
University School of Medicine), Dr. Robert Porter (board certified
7
The acronym stands for "brain single-photon emission
computed tomograph scan."
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in occupational medicine), and Dr. Kinderlehrer (a holistic
physician). Although these doctors relied in part on the positive
ELISA test when reaching their conclusions, they focused primarily
on the clinical symptoms manifested by Gent. Dr. Clough reasoned
that "[m]ost of [Gent's] symptoms are not found with a patient who
is simply depressed" and that "[m]any of those symptoms . . . are
very typical for Lyme disease." Similarly, Dr. Donta concluded
that Gent "has severe cognitive problems along with other symptoms
that could fit the picture of Lyme disease." Dr. Kinderlehrer
echoed these sentiments, observing that Gent "had a tick bite
followed by an erythema migrans rash [and] developed neurological,
cardiac, and musculoskeletal complaints consistent with Lyme
disease . . . ."
Other doctors, however, concluded that Gent did not have
Lyme disease. These doctors included Dr. Yarosh, Dr. Mark Moyer (a
board certified specialist in internal medicine and infectious
diseases), Dr. Christopher Tolsdorf (a clinical neuropsychologist),
Dr. John Brusch (board certified in infectious diseases and Chief
of Medicine at Youville Hospital in Cambridge, Massachusetts), and
Dr. Jeffrey Greene (a clinical professor of medicine at the New
York University School of Medicine and Chief of the Tisch Hospital
Infectious Disease Section). These doctors focused largely on the
laboratory data, including the absence of a positive Western blot
test and the fact that Gent's CSF revealed no antibodies associated
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with Lyme. Both Dr. Brusch and Dr. Greene further concluded that
the clinical evidence also counseled against a Lyme disease
diagnosis. Dr. Greene observed that many of the symptoms Gent
experienced were out of step with the normal progression of Lyme
disease. He said that, in the normal course, the erythema migrans
surfaces during the early stages of Lyme disease, whereas certain
neurological and joint-related symptoms manifest themselves later.
Dr. Greene then observed that Gent had complained of achy joints
over a year before any rash surfaced. This clinical course,
according to Dr. Greene, was "very atypical."8 For his part, Dr.
Brusch said that the "clinical picture of her symptoms" reflected
"untreated depression." In particular, he observed that "the
neuropsychological testing is consistent with depression much more
than with an organic brain syndrome."
Taking all the evidence into account, we believe CUNA's
arguments that Gent's disability was not caused by Lyme disease to
be the better-supported position. Although this conclusion is
based on a holistic review of the record evidence, two aspects of
this case are worth highlighting.
First, while one can reasonably interpret the clinical
and neuropsychological evidence to either support or undermine a
Lyme disease diagnosis (as demonstrated by the opinions of the
8
Dr. Greene did not rule out the possibility that Gent had
contracted Lyme disease at some point in her life. Nevertheless,
he said that she did not currently have Lyme disease.
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doctors above), the laboratory data lines up almost uniformly
against such a diagnosis. In particular, the Western blot test was
negative. Gent's attempts to downplay the significance of the
negative Western blot are not persuasive. She points out that the
CDC says that where a patient has an erythema migrans, as Gent
claimed to have had9, validated laboratory tests like Western blot
are "not generally recommended." But the CDC goes on to say that,
even in such cases, "[v]alidated laboratory tests can be very
helpful." Whether recommended or not, doctors administered the
Western blot test in Gent's case and it was negative. Gent further
argues that a few doctors, including Dr. Greene, conceded that no
negative test could be completely diagnostic or definitive.
Although this may be true, the negative Western blot in Gent's case
was corroborated by the analysis of Gent's CSF. Indeed, the only
laboratory test which was positive for Lyme diseases was the ELISA
test, a test which can produce false positives.10
Second, Gent's history of depression makes the Lyme
disease diagnosis more susceptible to questioning. Before claiming
9
Gent claims that she had erythema migrans on both of her
arms. Yet, according to the information on the CDC website, an
erythema migrans surfaces at the site of the tick bite. Thus, a
tick or ticks would have needed to bite Gent on both arms at
approximately the same time.
10
The SPECT scan was inconclusive. Although Dr. Donta said
the scan revealed defects that could be consistent with Lyme
disease, another doctor, Dr. Greene, said the scan revealed "non-
specific" findings.
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disability due to Lyme disease, Gent had filed (and CUNA had
approved) a disability claim based on recurrent major depressive
disorder. Symptoms of this disorder (including fatigue, difficulty
concentrating, and sleep disturbance) overlap with symptoms of Lyme
disease. Dr. Brusch observed as much in his evaluation of Gent,
explaining that, in his view, Gent was suffering from untreated
depression, not Lyme disease.
One loose end remains. Gent argues that the district
court should have granted her summary judgment because the mental
illness limitation in CUNA's policy is ambiguous. The policy
defines mental illness as a "[m]ental, nervous or emotional
disease[] or disorder[] of any type." According to Gent, the
mental illness limitation is ambiguous because it is unclear
whether the limitation caps benefits for all illnesses that may
produce psychiatric symptoms, including those illnesses with an
organic or physical origin (e.g., Alzheimer's Disease or brain
cancer). In support of her argument, Gent notes that other
circuits have concluded that similarly phrased mental illness
limitations are ambiguous. These circuits have construed the
limitations in favor of the insured and held that the limitations
are inapplicable to illnesses that are physically or organically
based, even if those illnesses happen to produce psychiatric
symptoms. See Kunin v. Benefit Trust Life Ins. Co., 910 F.2d 534,
538 (9th Cir. 1990)("[M]ental illness refers to a behavioral
-16-
disturbance with no demonstrable organic or physical basis . . . .
It stems from reaction to environmental conditions as distinguished
from organic causes.") (citation omitted); see also Billings v.
Unum Life Ins. Co. of Am., 459 F.3d 1088, 1093-94 (11th Cir. 2006);
Patterson v. Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir. 1993);
Phillips v. Lincoln Nat'l Life Ins. Co., 978 F.2d 302, 310-11 (7th
Cir. 1992).
Even if we were to conclude that the mental illness
limitation is ambiguous and construe it in Gent's favor, the
question of whether Gent's disability had a physical or organic
etiology would still remain. In our view, the evidence does not
establish her claim that her illness was caused by Lyme disease (or
by additional suspects Meniere's disease and drug toxicity).11
IV. Conclusion
For the reasons provided, the judgment below is affirmed.
11
Gent does not argue that the mental illness limitation is
inapplicable to her depressive disorder.
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