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."
-3-
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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