United States Court of Appeals
For the First Circuit
No. 04-1520
JACOB M. ORNDORF,
Plaintiff, Appellant,
v.
PAUL REVERE LIFE INSURANCE COMPANY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Charles Leonard Mitchell for Appellant.
Joan O. Vorster, with whom Elizabeth L. B. Greene and Mirick,
O'Connell, DeMallie & Lougee, LLP were on brief, for Appellee.
April 15, 2005
LYNCH, Circuit Judge. This case requires us to address
what is meant by de novo judicial review under ERISA of a denial of
benefits when the ERISA plan does not preserve discretion in the
plan administrator. That raises concomitant questions of whether
the claimant is entitled to trial in the district court and what,
if any, evidence may be admitted that is not in the administrative
record before the ERISA administrative decision maker. Our
conclusion is that given the nature of the claimant's challenge
here -- that he did in fact establish his eligibility to benefits
before the ERISA decision maker -- the claimant was not entitled to
trial or to admit desired new evidence outside the administrative
record or to discovery. Having defined the standards, we apply
them to the facts, and uphold the denial of benefits.
I.
Jacob Orndorf worked as a perfusionist, a person who
operates a heart-lung machine, for Jersey Shore Cardiac Associates,
Inc. ("Jersey Shore") from January 1, 1992 until March 29, 1995.
Defendant Paul Revere Life Insurance Company ("Revere") provides
group long-term disability insurance coverage to Jersey Shore; this
plan is an employee welfare benefit plan as defined by ERISA.
In June 1995, Orndorf started receiving disability
benefits for his drug dependency; under the policy, these benefits
would last only until June 26, 2000. In 1998, Orndorf first
informed Revere that he claimed a continuation of the disability
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payments beyond June of 2000 based on purported back problems.
There was considerable exchange of medical information between
Orndorf and Revere. Revere determined that Orndorf was not
disabled due to pain from his back, neck, ankle or hypertension.
On January 10, 2002, Revere issued a final denial of benefits and
informed Orndorf that he had exhausted all of his appellate
administrative remedies and that Revere would review no further
information; the administrative record was closed.
In February of 2002, Orndorf1 filed suit against Revere2
in federal district court pursuant to 29 U.S.C. § 1132(a)(1)(B),
alleging that Revere unlawfully denied his claim for long-term
disability benefits due to physical limitations. Both parties
filed motions for summary judgment.
The district court extensively reviewed the evidence in
the administrative record, the duties of someone in Orndorf's
occupation, Orndorf's first claim (drug dependency) and second
claim (back pain) for disability, his treatment for back pain, his
capacity to work, Revere's conclusion, and Orndorf's arguments on
appeal. The court concluded that Orndorf was not disabled due to
1
In several letters and papers in the administrative record,
the appellant's name is spelled "Orndorff." However, the complaint
and other papers filed in the district court and the briefs before
this court use the spelling "Orndorf," and that is the spelling we
use in this opinion.
2
Unum Provident was originally named as a defendant, but on
September 16, 2002, the parties stipulated that Revere was the
proper and sole defendant.
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back, neck, or ankle pain or hypertension under the terms of the
plan;3 "Orndorf's claim collapsed under the weight of the Record."
The court granted summary judgment to Revere on March 17, 2004.
Orndorf v. Paul Revere Life Ins. Co., No. 02-30024 (D. Mass. Mar.
17, 2004).
II.
A. The Policy
The Revere long-term disability policy at issue provides
benefits in certain situations, including when an individual is
totally disabled from performing the duties of his or her own
occupation. Total disability for the purposes of Orndorf's policy
means:
a. that because of injury or sickness the
employee cannot perform the important duties
of his own occupation; and b. the employee is
under the regular care of a doctor; and c. the
employee does not work at all.
The policy also defines Revere's obligation to pay
benefits to the employee:
[Revere] pay[s] monthly total disability
benefits to an employee if he becomes totally
disabled while insured due to injury or
sickness. The employee must be under the care
of a doctor while totally disabled. . . .
During any continuous period of disability
immediately following completion of the
employee's elimination period, but before the
end of his benefit period, [Revere] pay[s] the
employee a monthly total disability benefit
for each whole month in which he is totally
3
The hypertension claim has been dropped on appeal.
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disabled from his own occupation. If the
employee works other than full-time at his own
job, he may qualify for monthly residual
disability benefits.
B. Orndorf's First Claim for Disability
In May of 1995, Orndorf submitted his first claim to
Revere for disability benefits for a "drug related" sickness,
following hospitalization for a drug overdose.
Revere evaluated Orndorf's records to determine whether
he was totally disabled due to drug disability under the plan, and
on August 24, 1995, Revere informed Orndorf that it had approved
his claim under the "Other Limitations" provision of the Policy and
that his benefits period would expire on June 26, 2000.4
Although Orndorf is no longer receiving payments for this
disability, his drug and psychiatric illnesses continue to preclude
him from returning to his job as a perfusionist.5 One might ask
4
The plan contains special limitations for "any disability
caused or contributed to by a psychiatric condition, alcoholism or
drug abuse," such as Orndorf's disability. First, "an employee
will be considered to be disabled [under the policy] only if he is
satisfactorily participating in a program of treatment or
rehabilitation approved by us." Second, for this kind of
disability, benefits are limited: "benefits are payable for up to
sixty months whether or not the employee is hospital confined.
After sixty months, subject to all other policy provisions,
[Revere] pay[s] benefits only if the employee continues to be
hospital confined due to the disability."
5
As the district court found, "it is undisputed that
[Orndorf's] drug dependency will be a lifelong condition and will
prevent Orndorf from ever returning to his occupation as a
perfusionist . . . ." This is consistent with the evidence in the
administrative record, including Orndorf's own admission. Orndorf
stated, "[A]ddiction is a lifetime illness, this means limiting my
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why, if Orndorf is disabled anyway from doing his job as a
perfusionist, there is any issue about whether he is also disabled
by his back condition. There are two answers. The first is that
Revere's statement of reasons as to why it denied benefits is that
(1) the benefit period for the drug dependency disability had
expired and (2) the information provided did not support
eligibility for disability under any other provision of the plan.
Revere is limited to the grounds of denial it articulates to the
claimant. See Glista v. Unum Life Ins. Co., 378 F.3d 113, 128-29
(1st Cir. 2004). Second, Orndorf cites to a provision in the
policy that provides for circumstances where an employee is
disabled by more than one injury or sickness:
If a Disability is caused by more than one
Injury or Sickness, or from both, We will pay
benefits as if the Disability was caused by
one Injury or Sickness. . . . We will pay the
larger benefit.
Revere has not disputed the applicability of this provision to
Orndorf's case.
access to medications for ever [sic]. . . . [I] would love to work
again in the [medical] field, but my illness makes this
impossible."
On appeal, Orndorf in his brief suggests that perhaps he could
return to his work as a perfusionist despite his addiction.
Orndorf cites to several websites which he states give examples of
and information about health care providers recovering and
returning to practice. This information was not before the
administrator and was not admitted by the district court. We note
but do not consider it.
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There is no real dispute that Orndorf was paid the
benefits owed for his first disability claim due to drug
dependency.6 The question is whether he was disabled within the
meaning of the policy for his alleged back condition, his second
claim for disability.
C. Orndorf's Second Claim for Disability
Although Orndorf says his history of back pain dates back
to 1976, Orndorf first claimed disability on account of his back
pain in June of 1998, when a Revere field representative met with
Orndorf at his home on an unannounced visit. During this visit,
Orndorf claimed that his chief disabling condition was his back and
that therefore the disability payments should continue beyond June
of 2000. Soon thereafter, Revere obtained Orndorf’s complete
Social Security Disability Insurance Appeal decision and his
medical records.
In December of 1999, the insurer issued its original
decision on this second claim, and Orndorf was told that his
benefits were denied:
6
Before the district court, Orndorf argued that Revere’s
termination of his benefits for his drug related disability was
arbitrary and in breach of Revere's fiduciary duty. The district
court summarily rejected this argument, noting that "no evidence in
the Record indicates that Paul Revere failed to pay Orndorf the
full amount of the benefits owed to him as a result of his initial
disability claim based on drug dependency." The district court
concluded, "there is no merit to Orndorf's claim that Revere's
decision to 'terminate' his benefits was arbitrary, capricious, and
in breach of a duty of good faith and a fiduciary duty." Orndorf
does not raise this issue or dispute this finding on appeal.
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In the regular course of administering your
claim, we conducted a review of all of your
medical records. As a result of this review,
it is our opinion that you are not precluded
from performing the duties of your job or one
similar in nature.
You alleged that you could not work due to
chronic low back pain and advised your doctor
on June 23, 1998 that your activities were
limited and you remained indoors most of the
time. However, on June 11, 1998, you reported
you had been on a long bike ride. There seems
to be some discrepancy between your related
history and limitations and your actual level
of activities and your performance.
We found no evidence of back problems or
hypertensive care during the year 1998.
Consequently, it is our opinion that your only
disabling condition has been depression and
substance abuse. Therefore, your claim has
been administered and paid under the Other
Limitations provision of the policy.
In October of 2000, on the first review of its denial,
the insurer advised Orndorf:
We have received your letter dated October 3,
2000 including a letter from Dr. Gilbert.
Your entire claim file was sent to our medical
department for review, the review included the
following records: medical review from Dr.
Bianchi, medical packet from you backdated
8/31/00, letter from Dr. Rund dated 11/1/97, a
functional capacity form completed by Dr.
Gilbert, CT lumbar spine dated 3/8/00 and x-
rays of spine and cervical dated 5/12/00.
At this time it is our opinion that in order
to fully evaluate your physical limitations
and restrictions we need additional objective
information. This information should include
reports of your last examination from the
reported date of your illness and updated
physical examinations.
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On August 23, 2001, the insurer affirmed its denial of
benefits on the basis that:
These records were reviewed by one of our in-
house physicians. This physician is Board-
Certified in Internal Medicine. We have
determined that based on [] Mr. Orndorf's
medical records that there was no basis for
hypertensive impairment, and no evidence of
persistent impairment producing limitations or
necessitating restrictions from Mr. Orndorf's
maxillary sinusitis and cervical spine
complaints.
Thereafter, at Ordnorf's request, the insurer considered
additional evidence and on January 10, 2002, reaffirmed its denial
in a final review:
Since additional information was submitted,
Mr. Orndorf's file was forwarded to the
medical department for review. According to
the Board-Certified Physician in Internal
Medicine, he concludes the following:
a) Primary psychiatric impairment at the date
of disability with persistence demonstrated
through much of the claim period without
adequate objective documentation of
persistence to or beyond the 12/21/99
determination letter
b)No objective basis for hypertensive
impairment producing limitations or
necessitating restrictions at or below a high-
level medium workload
c)Degenerative disc disease of the lumbar
spine with intermittent symptomatic
exacerbations without evidence of continuous
or persistent ongoing impairment through the
life of the claim, at or about the 12/21/99
determination letter, or subsequently
d)Post-traumatic ankle pathology without
objectively demonstrated standing or
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ambulatory impairment during the course of the
claim beyond transiently associated with the
11/99 sprain and specifically without evidence
of continued or persistent impairment from the
12/21/99 determination letter up to the 5/3/00
rating examination
e)No objective evidence of continued or
persistent impairment producing limitations
necessitating restrictions from the claimant's
maxillary sinusitis and cervical spine
complaints.
Based on the information in the claim file,
the denial of benefits in Mr. Orndorf's case
is appropriate.
Orndorf then filed suit in the district court.
III.
On appeal, Orndorf raises several challenges to the
district court's decision, arguing the district court erred by (1)
failing to use de novo review in ruling on the cross motions for
summary judgment; (2) denying Orndorf's request for discovery and
leave to submit additional evidence; (3) denying Orndorf's motion
for summary judgment or, in the alternative, in failing to find a
material dispute of fact which would have defeated Revere's motion;
and (4) not awarding Orndorf interest, attorney's fees, and costs.
If Orndorf is wrong about the first three claims, the fourth
necessarily fails.
Both parties agree that de novo review by the district
court of a plan administrator's decision to deny benefits under an
ERISA plan is proper under Firestone v. Bruch, 489 U.S. 101, 115
(1989), where the plan does not grant discretion to the
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administrator.7 The overarching question is what exactly is
entailed in de novo review.
A. Appellate Standard of Review
We quickly put aside one issue about the scope of our
appellate review. Because the case was decided on summary judgment
in the district court, the standard of review used by this court to
review the district court's decision is de novo. See Fenton v.
John Hancock Mut. Life Ins. Co., 400 F.3d 83, 87 (1st Cir. 2005).
This includes our engaging in non-deferential review of the legal
question of the proper content of the district court's de novo
review of a plan administrator's determination, as that term is
used in Firestone v. Bruch, 489 U.S. at 115.
The review utilized both by this court and the district
court in this ERISA case differs in one important aspect from the
review in an ordinary summary judgment case. As we noted in Liston
v. Unum Corp. Officer Severance Plan, 330 F.3d 19 (1st Cir. 2003),
in an ERISA case where review is based only on the administrative
record before the plan administrator and is an ultimate conclusion
as to disability to be drawn from the facts, summary judgment is
simply a vehicle for deciding the issue. Id. at 24. This means
the non-moving party is not entitled to the usual inferences in its
7
Firestone held that "a denial of benefits 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." Firestone, 489 U.S. at 115.
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favor. Id. When there is no dispute over plan interpretation, the
use of summary judgment in this way is proper regardless of whether
our review of the ERISA decision maker's decision is de novo or
deferential.8
B. Content of De Novo Standard of Review
Plaintiff's argument as to the proper content of the
district court's de novo review is based on the second paragraph of
Firestone's holding, set forth below:
As this case aptly demonstrates, the validity
of a claim to benefits under an ERISA plan is
likely to turn on the interpretation of terms
in the plan at issue.
Consistent with established principles of
trust law, we hold that a denial of benefits
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.
Firestone, 489 U.S. at 115 (emphasis added).
Firestone makes it clear that in such situations of
dispute over the meaning of plan language, no deference is given to
the administrator's interpretation of the plan language. Rather,
8
To the extent Radford Trust v. First Unum Life Insurance
Company of America, 321 F. Supp. 2d 226, 239 (D. Mass. 2004),
suggests otherwise, we disagree. It cites to Hughes v. Boston
Mutual Life Insurance Company, 26 F.3d 264, 268 (1st Cir. 1994), a
case concerned with the different issue of application of summary
judgment rules to interpretation of ambiguities in an ERISA
contract. Id. at 270. For a discussion of the interplay of
contract and summary judgment rules, see McAdams v. Massachusetts
Mutual Life Insurance Company, 391 F.3d 287, 298-300 (1st Cir.
2004).
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the court interprets the plan de novo, and applies the normal rules
for contract interpretation. See Hughes v. Boston Mut. Life Ins.
Co., 26 F.3d 264, 267-68 (1st Cir. 1994). In this case, there is
no dispute about interpretation of the plan terms presented on
appeal.9 Thus there is no occasion to consider the use of outside
evidence to assist the court in interpreting plan language. There
is also no dispute over what the plan documents are. Cf. Fenton,
400 F.3d at 87-89. But literally read, Firestone's de novo review
language is broader, and also includes a conclusion to deny
benefits based on a set of facts, such as Revere's conclusion here.
From Firestone's de novo review language, Orndorf makes
several arguments.
Orndorf argues that the district court erred by giving
deference to the administrator's decision. The correct standard,
he argues, is "whether, upon a full review of the administrative
9
Orndorf asserts in his brief that Revere applied the wrong
standard of total disability by stating in its first denial of
Orndorf's disability claim that "it is our opinion that you are not
precluded from performing the duties of your job or one similar in
nature." (emphasis added). But Orndorf makes no serious argument
that Revere misinterpreted the policy or that Revere ultimately
applied this definition of disability as opposed to the one which
requires that Orndorf cannot perform the important functions of his
own profession. It is clear that this is the definition Revere
applied in making its final determination that Orndorf was not
entitled to disability. In the September 2000 review by Revere,
the reviewer was specifically asked whether the insured was
precluded from performing the duties of his own occupation, which
was listed as perfusionist. In the August 2001 review, Revere
asked what the reviewer's prognosis was for Orndorf's return to
work; his occupation was listed as perfusionist.
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record, the decision of the administrator was correct." We agree
with this standard and disagree that the district court used any
other standard.
Orndorf next argues that if the administrative record
shows any conflict in views among the doctors, then summary
judgment must be denied. Orndorf may be arguing that on review of
an administrative record through summary judgment the court must
relieve him of his burden of proving he is disabled because under
summary judgment all inferences are drawn against the movant. We
have already rejected this argument in Liston, 330 F.3d at 24, and
we apply Liston to de novo review, as noted above. Alternatively,
Orndorf may be arguing that a court faced with an administrative
record with conflicting medical opinions should then hold a trial
with witnesses to resolve the disputes. He filed a motion to that
effect, which was denied by the district court. The court was
correct to deny the motion. Trial is not warranted because the
record shows one doctor's diagnosis disagrees with another's, and
the fact that judicial review is de novo does not itself entitle a
claimant to a trial or to put on new evidence.10
10
By analogy, we have held where review (under an arbitrary and
capricious standard) is based on an administrative record and no
additional evidence is considered, jury trials are not available.
See Recupero v. New Eng. Tel. & Tel. Co., 118 F.3d 820, 831 (1st
Cir. 1997). Again, the change in standard of review from arbitrary
and capricious review under Recupero to de novo review in this case
makes no difference.
-14-
Some courts have stated that "factual findings" made by
the administrative decision maker are reviewed de novo and have
suggested that this warrants the introduction of new evidence to
the trial court, perhaps in the form of an evidentiary hearing or
a trial de novo. See Luby v. Teamsters Health, Welfare, & Pension
Trust Funds, 944 F.2d 1176, 1184-85 (3d Cir. 1991). Where review
is properly confined to the administrative record before the ERISA
plan administrator, as we explain below is the case here, there are
no disputed issues of fact for the court to resolve.
Review of the ultimate conclusion of whether the evidence
supports the finding of a disability does not itself warrant
introduction of new evidence about historical facts. See Masella
v. Blue Cross & Blue Shield, Inc., 936 F.2d 98, 104 (2d Cir. 1991).
Nor does it warrant calling as witnesses those persons whose
opinions and diagnosis or expert testimony and reports are in the
administrative record. Rather, de novo review generally consists
of the court's independent weighing of the facts and opinions in
that record to determine whether the claimant has met his burden of
showing he is disabled within the meaning of the policy. While the
court does not ignore facts in the record, see Recupero v. New Eng.
Tel. & Tel. Co., 118 F.3d 820, 830 (1st Cir. 1997), the court
grants no deference to administrators' opinions or conclusions
based on these facts.
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One guiding principle in conducting de novo review of
this ultimate conclusion is that it is the plaintiff who bears the
burden of proving he is disabled. See Terry v. Bayer, 145 F.3d 28,
34 (1st Cir. 1998) (insured bears burden of making showing
sufficient to establish a violation of ERISA); GRE Ins. Group v.
Met. Boston Hous., 61 F.3d 79, 81 (1st Cir. 1995).
C. Extra-Administrative Record Evidence
Orndorf also argues that the trial judge should have
admitted evidence outside of the administrative record on the
question of whether he was disabled. He argues the trial court
erred:
in denying [him] leave to submit evidence of
significant weight gain of 80 pounds, medical
records of his need for gastronomy for weight
loss, records of his prescribed pain killers
for pain reduction such as oxycodene and
clonazepon, a MRI showing disc change and
nerve compromise, and a medical report from
Dr. Marc Linson, an orthopedic spine
specialist, who examined Orndorf and his
records and opined that he was disabled on
January 10, 2002, the date of Revere's denial
and at the time of the examination one year
later.
Not only do we reject Orndorf's claim that it was error for the
court to exclude such extra-record medical evidence, but we hold it
would have been error for the court to have admitted such evidence.
The decision to which judicial review is addressed is the
final ERISA administrative decision. It would offend interests in
finality and exhaustion of administrative procedures required by
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ERISA to shift the focus from that decision to a moving target by
presenting extra-administrative record evidence going to the
substance of the decision. Liston, 330 F.3d at 24. There is no
claim Orndorf was denied an opportunity to present evidence to the
administrator. Here, the plaintiff had ample time to collect
records and had two administrative appeals reviews of his claims by
Revere. Even if the new evidence directly concerned the question
of his disability before the final administrative decision, it was
inadmissible.
Furthermore, the final administrative decision acts as a
temporal cut off point. The claimant may not come to a court and
ask it to consider post-denial medical evidence in an effort to
reopen the administrative decision. The evidence Orndorf sought to
introduce is of this character.
As this court noted in Liston, the focus of judicial
review, under the arbitrary and capricious standard, is ordinarily
on the record made before the administrator and at least some very
good reason is needed to overcome that preference. Id. Liston did
not resolve the question of whether the same rule applies when
there is de novo review, but did note that even in de novo review
cases it was:
at least doubtful that courts should be in any
hurry to consider evidence or claims not
presented to the plan administrator . . . .
Exhaustion of remedies principles point in
this direction even if no deference were due
to the administrator's determination, assuming
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always that the plan empowered the
administrator to make an initial decision.
Id. (citation omitted).
We hold that the Liston rule about admissibility of
evidence outside the administrative record applies even when the
denial of benefits is subject to de novo review. Whether evidence
is admissible turns on the nature of the challenge to the decision;
the answer to the question is not likely to turn on whether the
standard of judicial review is de novo or arbitrary and capricious.
The focus of the review under de novo review is still the
administrator's decision and must ordinarily be based on the
administrative record.
There may be times when it is appropriate for courts to
hear new evidence. Where the challenge is not to the merits of the
decision to deny benefits, but to the procedure used to reach the
decision, outside evidence may be of relevance. For example,
evidence outside the administrative record might be relevant to a
claim of personal bias by a plan administrator or of prejudicial
procedural irregularity in the ERISA administrative review
procedure. See id. at 23. We need not catalogue the situations in
which new evidence is admissible, other than to note it is more
obviously relevant when the attack is on the process of decision
making as being contrary to the statute than on the substance of
the administrator's decision. Also, evidence may be relevant to
explain a key item, such as the duties of the claimant's position,
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if that was omitted from the administrative record. Such
explanatory extrinsic evidence was admitted by the district court
in this case; Revere has not disputed this admission.
Other courts have suggested various measures for
evaluating the admissibility of such extra-administrative record
evidence. See, e.g., Quesinberry v. Life Ins. Co. of N. Am., 987
F.2d 1017, 1023-25 (4th Cir. 1993) (en banc). But we need only
note, not decide the issue. The evidence here was inadmissible,
inter alia, because the other evidence plaintiff advances is
largely evidence collected after or evidence of his condition after
Revere's final decision on January 10, 2002.
D. Discovery
Orndorf also argues the district court should have
provided him with discovery "to determine whether the Revere claim
staff and medical reviewers followed procedure and were properly
educated, trained and qualified."
The district court invited Orndorf to make a more
specific showing of the pertinence of the request, but he did not.
The court was correct to deny discovery. There was no serious
claim of bias or procedural misconduct toward Orndorf. As we said
in Liston, "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." Liston, 330 F.3d at 23. This is
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true as to discovery as well, regardless of whether the standard of
review is de novo or deferential.
III.
Turning to review of the record, we summarize the
evidence.
A. The Duties and Job Requirements of a Perfusionist
In 1995, in connection with his first disability claim,
Orndorf filed an occupational report with Revere detailing the
physical demands of his job. He noted that he frequently had to
stoop and bend; occasionally had to reach above his shoulder level;
continuously needed manual dexterity; occasionally had to lift 50
pounds; never had to carry; and had to both sit and stand for 5
hours. He described his most important or essential function as
"operating a heart lung machine during open heart surgery," and he
left blank the space for "additional comments on physical
requirements." Revere does not dispute that Orndorf's "own
occupation" was that of a perfusionist, and does not dispute his
characterization of the physical requirements of his job.
An Employability and Earning Capacity Evaluation11 which
was admitted into evidence by the district court describes the job
of a perfusionist:
11
The district court admitted this report only for the limited
purpose of clarifying the duties of a perfusionist, and struck
other portions of the report.
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Sets up and operates heart-lung machine in
hospital to take over functions of patient's
heart and lungs during surgery or respiratory
failure. Reviews patient medical history and
chart, and consults with surgeon or physician
to obtain patient information needed to set up
heart-lung machine and associated equipment.
Selects, assembles, sets up, and tests heart-
lung machine to ensure that machine and
associated equipment function according to
specifications. Operates heart-lung machine
to regulate blood circulation and composition,
to administer drugs and anesthetic agents, and
to control body temperature during surgery or
respiratory failure of patient. Monitors and
observes operation of heart-lung machine and
patient's physiologic variables such as blood
temperature, blood composition, and flow rate,
and adjusts equipment to maintain normal body
functions. Cleans and adjusts parts of heart-
lung machine.
The report classifies the perfusionist's job as "medium
work" according to the Department of Labor, meaning that it
involves exerting 20 to 50 pounds of force occasionally, and/or 10
to 25 pounds of force frequently. The report notes that the job
involves lifting filled blood lines and buckets of ice weighing up
to 50 pounds. The other physical demands include stooping,
occasionally; crouching, occasionally; reaching, constantly;
handling, constantly; fingering, constantly; feeling, occasionally;
and talking, frequently.
B. Evidence in the Record of Orndorf's Back, Neck, and Ankle Pain
and Treatment:
Orndorf first sought treatment for back pain in 1976.
While serving in the Air Force, he sought treatment in September of
1978 at the Andrews Air Force Base Spine Clinic and in July of
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1979, after injuring himself while jumping out of a moving car. X-
rays taken in July of 1979 indicated that he had 50 percent loss of
disc space between L4-L5 in his spine. The next record of
treatment for back problems was on October 23, 1992, approximately
ten months after Orndorf started as a perfusionist at Jersey Shore.
At this visit, he complained of "recent low back pain" after he
weight lifted 350-400 pounds.
In December 1993, Orndorf had an MRI of his lumbar spine.
The radiologist report noted that "[t]here is a central and left
sided disc herniation at the L4-L5 level. There are degenerative
disc changes of this disc with a decrease in the disc space height
and some loss of signal intensity of the disc." The impression of
the radiologist was "central and left sided disc herniation with
prominent degenerative changes at the L4-L5 level. No evidence of
lumbar spinal stenosis."
In January of 1994, Orndorf sought medical attention for
low back pain. The treating physician noted that Orndorf had
"[a]dvanced degenerative changes with small disc fragment at 4-5
interval with secondary changes at the 3-4 interval." He
recommended "strong rehabilitative program" and a series of
epidural injections. Orndorf claims to have received a series of
three epidurals at Jersey Shore Medical Center, although there are
no medical records of these treatments. On March 8, 1995, Orndorf
went to a clinic complaining of chronic low back pain, which he
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claimed was aggravated from standing and walking. He was offered
an orthopedic evaluation and a rehabilitation/medical evaluation,
both of which he declined; he accepted a prescription for percocet.
From March 29, 1995 to April 3, 1995, Orndorf again
complained of back pain during his stay at the Cooley Dickson
Hospital Psychiatric Program, where he was hospitalized after a
drug overdose. The discharge summary noted that during his
hospitalization, Orndorf complained of back pain, but this pain was
"found to be controllable with Tylenol and stretching exercises."
There is no evidence that Orndorf was treated for or
experienced low back pain after his release from the hospital in
April of 1995 to June of 1996.
In June 1996, Orndorf was involved in a slow speed car
accident and complained of low back strain. While a Lumbosacral
Spine exam showed narrowing of the L4-L5 disc, possibly with
associated spinal stenosis or disc herniation, the radiologist
thought it "very unlikely" to be related to the car accident.
In September 1996, Orndorf was again treated for back
pain, at the Veterans Administration ("VA") Medical Center
complaining that he could not stand for more than half an hour.
The impressions of the physician seeing Orndorf included "chronic
low back pain" and herniated discs between L4 and L5. Orndorf was
referred to physical therapy and rehabilitation; the recommended
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plan included weight reduction and use of a TEN's unit (a portable
physical therapy device) for a period of four weeks.
Orndorf then started a course of physical therapy and
pain treatments. During the September 30, 1996 session, he
reported that the TEN's Unit worked "great." On October 31, 1996,
Orndorf was treated with an epidural block. He reported he
obtained 2-3 months relief with past epidural blocks. On November
5, 1996, he again reported good results from the epidural block,
and on December 6, 1996, his physician noted that his low back pain
was stable.
There is no evidence that he was treated for or
experienced low back pain from November 1996 to December 1997, with
the exception of a letter from a physician stating that Orndorf was
unable to perform a stress test because of low back pain.
On December 4, 1997, Orndorf was treated again for
complaints of low back pain. He was to receive an epidural block
and have physical therapy for a few weeks. He went for physical
therapy on December 5, 8, 11, and 15, 1997, but did not show up for
his appointments on December 17, 19, and 22. The treatment plan
was terminated on December 22 due to his failure to keep his
appointments.
On January 9, 1998, Orndorf saw an orthopedist. On the
questionnaire form, he indicated that he had experienced back pain
"off and on" since 1976. He noted that he could not stand for a
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long time and that the pain was severe. However, he also indicated
that pain medicines, arthritis medicines, physical therapy, heating
pads, nerve stimulation, and cortisone injections all "improved"
his back pain. The orthopedist's form indicated that in general,
Orndorf appeared healthy, and that epidurals gave him "2 months to
a year's relief - pain comes back gradually." The orthopedist
noted the "good results of epidural injections."
On June 23, 1998, Orndorf informed a Revere field
representative that his addiction and his bi-polar disorder were
well controlled. He noted that he was aware his benefits for this
disability would end, but that his chief disabling condition was
his back and that his claim for long term benefits would extend
beyond the 60 months.
On July 27, 1998, Orndorf again visited a doctor with
complaints of low back pain. The treatment included continuing
physical therapy and referral to a pain clinic for an epidural
block. Orndorf reports that in the summer and fall of 1998, he
went to the VA pain clinic for three epidurals.
From August 1998 to June 1999, there is no record of
Orndorf being seen by a physician or receiving any treatment for
low back pain. At the end of June 1999, he once again went to a
physician with a chief complaint of low back pain. Dr. Richard
Norris noted that the most likely origin of the low back pain was
an accident in 1976. Dr. Norris noted severe narrowing in disc
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space and disc herniation. The doctor observed that Orndorf's
"gait is minimally antalgic on the left. He has moderate
restriction of range of motion of the lumbar spine." Dr. Norris
noted that Orndorf had a "severe discogenic disease at L4-5."
Orndorf claims that in November of 1999, his back pain
caused him to fall down the stairs and that he was seen at the VA
clinic. There are no documents verifying this event.
On January 23, 2000, Orndorf went to the VA clinic after
regular office hours with a complaint of back pain exacerbation
from standing too long. The physical examination revealed that he
had mild tenderness in the mid-lumbar area, no fluctuance, no
radiation, and normal gait. The examiner noted no evidence of back
muscular spasms. The examiner offered Motrin to the patient, which
was refused. The examiner told Orndorf that he could not schedule
a CT Scan and informed Orndorf that due to the chronic nature of
this problem, he should contact his primary care physician the next
morning, who might better be able to serve him. The examiner noted
that Orndorf was upset when he could not receive narcotics after
hours.
Orndorf did schedule a CT Scan with the VA Medical
Center, which was performed on March 8, 2000. The radiologist's
impressions from the scan were "[m]oderate degenerative disc
disease [at] L4-5 causing mild central spinal stenosis."
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In contrast to the extensive medical records of Orndorf's
treatment for back problems, the record contains little evidence of
Orndorf's neck or ankle problems. Orndorf broke his ankle in 1974
while serving in the Air Force. In 1999, he sprained the same
ankle, but was physically impaired only briefly. A CT scan report
of Ordnorf's ankle dated May 4, 2000 notes, "marked narrowing of
the talotibial joint . . . degenerative changes with spurring and
sclerosis involving the distal tibia[,] . . . the medial and
lateral malleolus . . . and plantar clacaneal spurring."
As for his neck pain, Orndorf suffered a cervical
fracture in 1978, and a cervical strain associated with an
automobile accident in June 1996. A report of an X-ray taken on
Orndorf's neck on May 12, 2000 states "cervical spondylosis at the
C5-C6 level with mild encroachment of the intervertebral formina
[and] loss of normal cerival curvature compatible with muscle
spasm."
There is no additional evidence for treatment of back,
neck, or ankle problems.
C. Evidence in the Record of Orndorf's Physical Limitations and
Capacity to Work
In May of 1995, when Orndorf submitted his first claim
for disability, he did not report back pain or any other physical
limitation that affected his ability to perform his job as a
perfusionist. He noted that his only sickness was "drug related,"
and in response to the question of how the "disability [has]
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interfered with the performance of the job? . . . Please describe
sitting, standing and walking requirements and limitations,"
Orndorf wrote only, "judgment." The physician who completed the
Attending Physician's Statement ("APS") for the first claim also
did not identify any physical limitations on Orndorf's capacity to
work.
In his evaluation for vocational rehabilitation on June
26, 1995, Orndorf reported that he had no physical disabilities,
but did suffer from hypertension. Also, in December of 1995,
Orndorf told a Revere claims department agent that he was
interested in working and that he would do laborer work, but not
forever. On March 12, 1998, Orndorf was "think[ing] about"
returning to work as a perfusionist, and in an April 1998
psychotherapy session he was "struggling with work issues . . . as
he starts to cope with the idea of his insurance getting cut off
eventually."
Orndorf's psychotherapy notes of June 11, 1998 reference
his recent long bicycle ride and sweat lodge ceremony and note that
he was engaging in physical activities. On June 23, 1998, a Revere
field representative observed that Orndorf had a bike or ski rack
on the top of his car and lived in a second floor walk up
apartment; however, the only outdoor activity that Mr. Orndorf
admitted to was taking short walks. Orndorf's psychotherapy notes
on July 2, 1998 indicate that he had been on "some bicycle trips."
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On September 22, 1998, a Social Security Administrative
Law Judge ("ALJ") found that Orndorf was "entitled to a Period of
Disability commencing March 28, 1995, and to Disability Insurance
Benefits under Section 216(i) and 223, respectively, of the Social
Security Act." The ALJ relied on the findings of the April 1996
and November 1997 physical examinations of Orndorf by Dr. Tonelli,
a Disability Determination Services staff physician. Dr. Tonelli
found that Orndorf's low back pain was severe. He assessed that
Orndorf retained the ability to lift and carry up to 10 pounds
frequently and 20 pounds occasionally; sit, stand, and walk without
restriction; and perform unlimited pushing and pulling. Dr.
Tonelli believed that Orndorf could perform occasional climbing,
balancing, stooping, kneeling, crouching, and crawling. Another
Disability Determination Services staff physician, Dr. Oscar
Cartaya, concurred with the opinion of Dr. Tonelli except he found
the claimant could perform frequent balancing, kneeling, crouching,
and crawling.
The ALJ determined that due to a combination of back
impairment, hypertension, cardiac impairment, bipolar disorder, and
a mixed personality disorder, Orndorf had impairments which made it
impossible for him to return to his former employment or make an
adjustment to other work, as of March of 1995.
The ALJ found that "as a result of his mental
impairments, [Orndorf] would be markedly limited in his ability to
-29-
complete a normal workday and workweek without interruptions from
psychologically based symptoms and moderately limited in his
ability to maintain attention and concentration for extended
periods and to perform at a consistent pace without an unreasonable
number and length of rest periods." She also found physical
limitations consistent with Dr. Tonelli's analysis. The ALJ noted
that Orndorf's drug addiction was "not a contributing factor
material to the determination of disability."
Orndorf's APS of August 1998, which was signed by Dr.
Hashimi, Orndorf's psychiatrist, states that Orndorf is totally
disabled from his job and has been totally disabled from July 13,
1979 to the present. The diagnosis listed is bipolar disorder. On
November 18, 1998 Revere received the last APS regarding Orndorf,
also from Dr. Hashimi. The space for diagnosis was left blank.
Orndorf's November 24, 1998 psychotherapy note indicates that one
of his hobbies was exercising.
In June 1999, Orndorf reported to Dr. Norris that he
rides a bicycle one to two times a week for two to three hours, and
that during the past several years he had received six to seven
epidurals with varied results. These would bring him relief up to
three to four months.
On October 3, 2000, Orndorf submitted to Revere a letter
from Dr. Mark Gilbert dated September 12, 2000. The letter was
addressed "To Whom It May Concern" and read as follows:
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Jacob Orndorf is a 45 year-old man disabled
because of back pain. He first injured his
back in 1976. Since then, he has seen a
variety of specialists and has had a variety
of treatments for progressive incapacitating
back pain. At this time, he says that he
cannot stand more than a few minutes, cannot
sit for over half an hour, and has to lie down
several times during the day because of pain.
MRI done in 1993 shows central and left-sided
disc herniation with prominent degenerative
changes at the L4-L5 level. He currently is
40% service-connected for back pain and says
that he is receiving Social Security
disability. Because of this, I consider him
disabled for sustained work.
Orndorf also submitted a functional capacity form filled out by Dr.
Gilbert. It is not clear whether Dr. Gilbert completed the form
from a physical examination or only from Orndorf's verbal answers
to the questions. Although the form is not dated, Orndorf claims
it is from September of 2000. It states that in an eight hour day,
Orndorf can sit for one hour at a time and stand or walk for one-
quarter of an hour at a time. It indicates that Orndorf can
occasionally lift or carry up to 20 pounds but can never lift or
carry over 20 pounds. The form says that Orndorf can never squat,
crawl, or climb.
On November 21, 2000, Orndorf was determined disabled
from any employment by the Department of Veterans' Affairs as a
result of on ankle fracture and hypertension effective October 22,
1997. The report found that his ankle was 20% disabling -- the
highest evaluation assigned for limitations of motion for an ankle
-- and that he had limited motion of the ankle.
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IV.
In light of this evidence and the burden being on the
claimant to establish disability, we consider Orndorf's primary
arguments that the decision to deny benefits was wrong.
First, Orndorf argues that the reasons relied on by
Revere are simply untrue, including the statement that Orndorf's
lumbar disc disease was "with intermittent symptomatic exacerbation
without evidence of continuous or persistent ongoing or persistent
impairment through the life of the claim, at or about the 12/21/99
determination letter or subsequently" and the statement that "we
found no evidence of back problems . . . during the year 1998."
Second, he argues Revere's reasons for denying his claim
are without support in the record and fail to take into account
certain evidence about the duration and constancy of his back pain.
Specifically, he argues Revere did not credit the disability
determination of the Social Security Administration, the Veteran's
Administration, or Orndorf's physician, and that Revere did not
perform its own medical examination.12
12
Orndorf makes a variety of other arguments concerning
Revere’s decision that Orndorf was not disabled. First, he argues
that while administrators are not required to credit a treating
physician’s assessment, Revere must offer a reason why it did not
credit his statement including either collusion by treating
physician or a reasonable basis for rejecting his opinion. He
argues that Revere did not refer back to the duties of the
perfusionist, or specifically make any determinations as to whether
Orndorf could perform the duties of perfusionist, his own
occupation. These types of arguments are relevant when performing
arbitrary and capricious review to determine whether the decision
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We do not read the denial of benefits to have ignored
significant material evidence submitted by Orndorf. The denial
letter need not detail every bit of information in the record; it
must have enough information to render the decision to deny
benefits susceptible to judicial review. When the standard of
judicial review is de novo, then the administrator, of course, runs
a greater risk of reversal if there is little discussion of the
evidence about disability. The discussion here of the reasons to
deny benefits, as recounted above, was considerable. The opinion
of the claimant's treating physician, which was considered, is not
entitled to special deference. See Black & Decker Disability Plan
v. Nord, 538 U.S. 822, 831 (2003).
Orndorf's claim that Revere did not have its own
physician examine Orndorf, as opposed to reviewing records, does
not establish his case. Denials of benefits may be based on review
of medical records submitted by the claimant. Orndorf's claim was
thoroughly reviewed by a board certified internal medicine
physician. And this is simply not a case where the only medical
evidence ran in Orndorf's favor, thus casting into doubt a denial
of benefits.
was reasonable. On de novo review, we reach our own decision based
on the administrative record; Orndorf’s obligation at this point is
to carry his burden to establish that he is disabled under the
plan.
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To the contrary, the evidence runs against Orndorf's
claim of physical disability. This case turns not on the question
whether plaintiff suffered back, ankle, or neck pain. The evidence
is that he did suffer at least back pain. The medical reports
clearly show back problems and the patient's reports of back pain
over time. This case turns on whether he met his burden of showing
that this back pain disabled him from performing his job as a
perfusionist. These records do not establish that these problems
disabled Orndorf from performing the duties of a perfusionist. On
de novo review, we conclude that Orndorf did not meet his burden.
Indeed, from the evidence, several dominant themes emerge.
First, Orndorf actually worked as a perfusionist without
any physical limitations despite twenty years of back pain and
treatment. Even as late as January 1994, Ordnorf complained to a
doctor of "long-standing" low back pain, yet he continued to
perform his job for another 14 months without any physical
limitations or claims of disability.
Second, when Orndorf stopped working in 1995, it was not
because of back pain, but because of his drug dependency. Indeed
he did not at this time attribute his disability to back pain.
Orndorf himself noted on the claims form that he filled out for his
first claim of disability that he had no physical limitations and
his only disability was drug dependency.
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Third, even after he stopped working in 1995, this back
pain was controllable and it did not prevent him from working.
During his stay at the Cooley Dickson Hospital in 1995, the doctor
noted that Orndorf complained of back pain, but that the pain was
controllable with a common pain reliever and stretching exercises.
In Orndorf's vocational rehabilitation evaluation, he reported no
physical disabilities, and in December of 1995, Orndorf told a
Revere representative that he would perform laborer work. In March
of 1998, Orndorf became concerned about his ability to survive on
disability, and he was considering returning to work as a
perfusionist. Indeed, he reported in 1996 and 1997 that various
pain therapies for his back were working.
Fourth, Orndorf engaged in recreational and life activity
inconsistent with his claim of disability. The notes of Orndorf's
psychotherapist suggest that Orndorf was taking bicycle rides and
engaging in physical activity. In 1998, he lived on the second
floor and had a bicycle rack on his car.
Fifth, even the 1998 Social Security Administration
determination of disability did not establish disability from his
job as a perfusionist due to his back problems. Rather, the
disability finding was based on a combination of factors including
hypertension, cardiac impairment, bipolar disorder, and mixed
personality disorder. The same is true of the Veteran's
Administration report.
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Sixth, the back disability claim was not made at all
until Orndorf had only two years of disability payments remaining
from his drug dependency claim. Orndorf's claim for back
disability followed his expressed concerns with work issues "as he
start[ed] to cope with the idea of his insurance getting cut off
eventually."
In light of this, the most reasonable view of the
evidence is that Orndorf does not meet the definition of disability
by a physical condition.
The award of judgment to the defendant is affirmed. No
costs are awarded.
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