Prince v. Metropolitan Life et al. CV-08-471-JL 3/16/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Laurie Prince

v. Civil N o . 08-cv-471-JL Opinion N o .

Metropolitan Life Insurance C o . and Verizon Communications, Inc.

OPINION & ORDER

This case presents an employee’s claim for disability

benefits due to ear pain and other symptoms that she attributes

to fibromyalgia, chronic pain syndrome, and depression.

Plaintiff Laurie Prince brought suit under the Employee

Retirement Income Security Act (“ERISA”),

et

seq., against her former employer, Verizon Communications, Inc.,

and its claims administrator, Metropolitan Life Insurance C o .

(“MetLife”), both of which had denied her disability claim. She

asks this court either to overrule them and award her benefits

under Verizon’s disability plan, see

§ 1132(a)(1)(B)

(authorizing civil actions “to recover benefits due” under an

ERISA plan), or else to remand the case for reconsideration in

light of a medical report issued shortly after her claim was

denied. The defendants argue that they were justified in making

a decision based solely on the record before them at the time,

which in their view failed to establish that Prince was disabled

from performing her job. This court has subject-matter jurisdiction under

(federal question) and

(e)(1) (ERISA).

Both sides have moved for judgment on the administrative

record, see L.R. 9.4(c), and have summarized it in a joint

statement of material facts, see L.R. 9.4(b). After oral

argument and a careful review of the record, judgment is granted

to the defendants. Even assuming that Prince suffers from

fibromyalgia, chronic pain syndrome, and depression (despite the

lack of a clear consensus among her doctors as to those

diagnoses), the record fails to show that her ear pain and other

symptoms prevented her from working in a desk job. The

defendants did not abuse their discretion by denying her claim

for disability benefits. Nor were they required to reopen their

decision based on the belated medical report that Prince

submitted.

I. Applicable legal standard

The standard of review in an ERISA case differs from that in

an ordinary civil case, where summary judgment is designed to

screen out cases that raise no trialworthy issues. See, e.g.,

Orndorf v . Paul Revere Life Ins. Co.,

1 0 , 517 (1st Cir.

2005). “In the ERISA context, summary judgment is merely a

vehicle for deciding the case,” in lieu of a trial. Bard v .

2 Boston Shipping Ass’n,

(1st Cir. 2006). Rather

than consider affidavits and other evidence submitted by the

parties, the court reviews the denial of ERISA benefits based

“solely on the administrative record,” and neither party is

entitled to factual inferences in its favor.

Thus, “in a

very real sense, the district court sits more as an appellate

tribunal than as a trial court” in deciding whether to uphold the

administrative decision. Leahy v . Raytheon Co.,

1 , 18

(1st Cir. 2002).

Where, as here, an ERISA benefits plan gives its

administrator discretion to decide whether an employee is

eligible for benefits,1 “the administrator’s decision must be

upheld unless it is arbitrary, capricious, or an abuse of

discretion.” Wright v . R.R. Donnelley & Sons C o . Group Benefits

Plan,

7 , 74 (1st Cir. 2005). This standard is

“generous” to the administrator, but “is not a rubber stamp.”

Wallace v . Johnson & Johnson,

1 , 15 (1st Cir. 2009).

The administrator’s decision must be “reasoned and supported by

substantial evidence.” Medina v . Metro. Life Ins. Co.,

1 , 45 (1st Cir. 2009). “Evidence is substantial if it is

reasonably sufficient to support a conclusion.” Stamp v . Metro.

1 Both parties agree that Verizon has discretion under its disability plan to determine an employee’s eligibility for benefits.

3 Life Ins. Co.,

4 , 87 (1st Cir. 2008). “Evidence

contrary to an administrator's decision does not make the

decision unreasonable, provided substantial evidence supports the

decision.” Wright,

4 .

Prince argues that this court should instead review the case

de novo because Verizon has a structural conflict of interest.

It is true that such a conflict exists: Verizon has a self-

funded disability plan under which it bears responsibility both

for determining an employee’s eligibility for benefits and for

paying any benefits awarded. But as our court of appeals

recently explained, “the presence of a conflict of interest does

not change the standard of review.” Cusson v . Liberty Life

Assurance C o . of Boston,

, 224 (1st Cir. 2010); see

also Denmark v . Liberty Life Assurance C o . of Boston,

,

9 (1st Cir. 2009). Rather, the “conflict should ‘be weighed as a

factor in determining whether there is an abuse of discretion,’”

alongside any other relevant factors. Cusson, 592 F.3d at 224

(quoting Metro. Life Ins. C o . v . Glenn, 128 S . C t . 2343, 2350

(2008)).

To determine how much weight to give the conflict, this

court is “duty-bound to inquire into what steps a plan

administrator has taken to insulate the decisionmaking process

against the [conflict’s] potentially pernicious effects.”

Denmark,

. Here, Verizon took a number of

4 insulating steps. Most notably, it delegated to two outside

insurance companies (Aetna Life Insurance C o . and MetLife) the

authority for making the initial benefits determination and

hearing Prince’s first-level administrative appeal, respectively.

Only at the second and final appeals stage did Verizon (through

its claims review committee) become involved in reviewing the

denial of Prince’s claim. Courts have consistently held that

conflicts should be given less weight where the administrator has

“added the intercession of an independent claims administrator”

at those early stages of review. Krensavage v . Bayer Corp.,

2 1 , 425 (3d Cir. 2008); see also Neal v . Christopher

& Banks Comprehensive Major Med. Plan,

9 0 , 906-

07 (E.D. Wis. 2009); Dunn v . Reed Group, Inc., N o . 08-1632,

, at *9 (D.N.J. Sept. 2 , 2009); Wattenhofer v . Target

Corp., N o . 07-4116,

, at *3 (D. Minn. Oct. 2 ,

2009); Russell v . Alcoa, Inc., N o . 06-1459,

, at *8

(M.D. P a . Mar. 3 1 , 2008).

Prince, who “bears the burden of showing that the conflict

influenced Liberty’s decision,” Cusson, 592 F.3d at 225, points

to Verizon’s refusal to consider a medical report that she

submitted shortly after the final administrative decision. She

characterizes this refusal as “procedural unreasonableness,”

which the Supreme Court has said can “justif[y] the court in

giving more weight to the conflict.” Glenn, 128 S . C t . at 2352.

5 But as explained in Part I I I , infra, there was nothing

unreasonable or improper about Verizon’s refusal to consider that

belated medical report. Nor has Prince shown that the conflict

played any role in it. 2 Accordingly, this court will “not accord

any special weight to the conflict in [its] analysis of whether

[Verizon’s] decision was proper, but rather consider[s] it along

with all of the factors present in this case to determine if

[Verizon’s] ultimate conclusion regarding [Prince’s] benefits was

reasoned and supported by substantial evidence.” Cusson, 592

F.3d at 228 (quotation omitted).

II. Background

For more than twenty years, Prince worked for Verizon and

its predecessor companies as a central office technician, a

sedentary desk job that involves significant computer and

telephone use. Her work, according to performance reviews, was

“top notch.” As a Verizon employee, she was eligible to

participate in the company’s self-funded Sickness and Accident

Disability Benefit Plan for New England Associates (the “Plan”),

which provides up to one year of sickness disability benefits to

eligible employees who suffer a sickness or an off-duty injury

2 Prince’s attempt to show an actual conflict is further undermined by the fact that Verizon awarded her disability benefits in connection with two earlier disability claims. See infra, Part I I .

6 that prevents them from working for more than seven calendar

days. To receive benefits, an employee must be certified as

disabled by the Plan’s claims administrator. Both parties agree

that, at least for purposes of this case, disability means a

sickness or injury that prevents the employee from performing her own job.3

Prince first made a claim for sickness disability benefits

in August 2002 after falling off a stool and suffering a painful

shin contusion. Although she did not break any bones and medical

providers could find “[n]o apparent reason for this persistent

pain,” Prince stayed out of work for more than two weeks. During

that time, she also went to the emergency room for a separate

problem with her left ear, in which she had a long history of

infections and chronic pain. The pain, she said, had become

worse and more constant in recent weeks, even causing her to

faint. The doctor saw a slight redness and bulging in her ear

and diagnosed her with another ear infection. He prescribed both

an antibiotic and a pain reliever.

3 The Plan is not entirely clear on that point and arguably sets a higher threshold –- i.e., “sickness or injury [that] prevents you from engaging in any occupation or employment for which you are qualified or may reasonably become qualified based on training, education or experience.” But because neither party argues for the “any job” definition, this court will apply the “own job” definition, which is more favorable to Prince.

7 By early September 2002, Prince’s shin had fully recovered,

but the pain in her left ear persisted. As a result, she stopped

going to work again in mid-September and, about a week later,

filed another sickness disability claim. Her primary care

physician, D r . Colleen Guiry, evaluated her a number of times

during this period. Concluding that Prince’s “pain seems to be

out of proportion to the objective signs,” D r . Guiry referred her

to an ear specialist, D r . Richard Lee, and ordered an M R I , which

revealed nothing that would explain the ear pain. D r . Guiry also

prescribed another course of pain medication.

Dr. Lee, the ear specialist, examined Prince in mid-

September 2002, but could not find anything wrong with her ear.

He also ordered some laboratory tests, which came back negative.

As a result, he wrote to D r . Guiry that he had “no diagnosis to

treat [Prince] with any pain medication at this point in time.”

But he suggested that Prince’s pain could be attributable to a

jaw problem (i.e., temporomandibular joint disorder, commonly

known as TMJ) or “possible psychological pain, with possible

secondary gain.” Secondary gain refers to “support, attention,

avoidance of unpleasant responsibilities,” and other advantages

that can be gained from an illness. Dorland’s Illustrated

Medical Dictionary 556 (31st ed. 2007)). Prince then arranged to

see another specialist, D r . Douglas Bell, who had performed sinus

surgery on her many years earlier. There is no medical report in

8 the record from that visit, but D r . Bell apparently diagnosed her

with neuralgia (i.e., nerve pain, see id. at 1281), referred her

to a neurologist, and filled out forms excusing her absence from

work.

In early October 2002, still out from work, Prince underwent

a neurological evaluation by D r . William House. D r . House noted

that she claimed to be “in agonizing pain but does not look to be

in pain at all.” Like D r . Lee, D r . House could not make a clear

diagnosis, but identified a number of possibilities, including

neuralgia, TMJ, and psychological pain. He gave Prince a local

anesthetic for her ear pain and also prescribed a steroid and

muscle relaxant, while suggesting that Prince wean herself off

pain relievers, which he suspected might be causing her fatigue.

And he “strongly encouraged her to get back to work as soon as

possible.” Prince asked if she could put off work until the next

Monday (it was a Wednesday), but he told her “the sooner . . .

the better.”

Prince did not return to work as D r . House suggested.

Instead, she went back to her primary care physician, D r . Guiry,

in late October 2002. After discussing Prince’s visits with the

other doctors, D r . Guiry prescribed a nerve pain medication

(Neurontin) for “presumed neuralgia” and, contrary to D r . House’s

assessment, reported that Prince had been unable to perform her

job since mid-September because of ear pain. At a follow-up

9 visit in mid-November 2002, however, D r . Guiry echoed D r . House

and “strongly encouraged [Prince] to go back to work,” if only

for half-days, because “staying at home . . . is not particularly

conducive to decreasing her ear pain.” This time, Prince

followed the doctor’s advice and returned to work the next

Monday, after the Thanksgiving holiday.

After four half-days back on the job, Prince made another

claim for sickness disability benefits in early December 2002--

the disability claim at issue in this case. She reported to

Aetna, the Plan’s claims administrator, that she had stopped

working because of neuralgia, head pain, and fatigue. She also

claimed to be experiencing dizziness and double vision. Dr.

Guiry, who had not seen Prince since advising her to go back to

work in mid-November, submitted a form to Aetna confirming that

Prince was unable to work because of dizziness, double vision,

and fatigue, describing them as “side effects of Neurontin, which

has helped with [her ear] pain.”

Despite having approved Prince’s previous two disability

claims, Aetna denied the third one because, in its view, Prince

had not presented any medical evidence that she was unable to

continue performing her desk job. Prince had 180 days to

challenge that decision by filing an administrative appeal. She

chose not to do so right away. Instead, she continued seeking

treatment and submitting her medical records to Aetna in the hope

10 that it would reverse its decision without requiring an appeal.

In the meantime, because she refused to return to work, Verizon

sent Prince a letter terminating her employment. She never

worked for the company again.

Prince went to see another neurologist, D r . Keith McAvoy, in

January 2003 (and regularly thereafter). H e , too, could not

identify a “definitive cause” for Prince’s ear pain, but agreed

with Drs. House and Bell that she “could be dealing with a

neuralgia,” albeit with somewhat unusual symptoms.4 He also

diagnosed her with “atypical” depression and anxiety disorder and

noted that she could be experiencing “anxiety converted to

neurological symptoms.” He ordered some laboratory tests to

probe for other possible diagnoses, but they came back negative.

Based on his evaluation, D r . McAvoy reported to Aetna that Prince

had no functional limitations other than head pain.

Nevertheless, he felt that she should be “kept out of work

indefinitely until her chronic painful symptoms are alleviated

and her depression [is] under improved control.” Aetna reviewed

the new information and deemed it insufficient to warrant

reversal of its earlier decision.

4 Prince confirmed to D r . McAvoy that the Neurontin had made a “drastic difference” for her ear pain, which “had gotten much better,” but that she had developed various other symptoms, including dizziness and double vision. D r . McAvoy agreed that those were probably side effects of Neurontin and recommended that Prince switch to another medication, which seemed to help.

11 Dr. McAvoy referred Prince to a psychiatrist, D r . Jory

Goodman, “to help [her] deal with her depression and anxiety

related to her chronic pain.” D r . Goodman evaluated Prince in

March 2003. After discussing Prince’s medical history, D r .

Goodman came to “suspect very strongly” that Prince had sustained

an undiagnosed skull fracture in early 1999 when she fell from a

horse onto frozen ground, which resulted in “episodic and

recurrent fluid leaking from her ear” over the ensuing years.5

Dr. Goodman considered it possible that fluid had built up in

Prince’s ear canals, thereby causing pressure and pain, but was

“not aware of any good technique to measure” i t . (Dr. Guiry

later noted, however, that Prince’s “symptoms of pain are not

typical of this particular entity.”) Like D r . McAvoy, D r .

Goodman also raised the “possibility of somatization”--i.e., the

conversion of mental states into bodily symptoms. See Dorland,

supra, at 1759. On balance, D r . Goodman concluded that Prince

was “temporarily totally disabled” by “neuralgia as well as her

present mood and pain disorder.” He continued to hold that

opinion after subsequent visits.

When Prince saw D r . McAvoy again in May 2003, she described

“some new symptoms:” radiating pain in the back of her head,

5 When Prince fell from the horse, her back hit the ground first, followed by her head, which was protected by a helmet. Records of her treatment after the fall focus on her back injury, not a head injury.

12 behind her left ear, accompanied by occasional twitching in her

extremities. Prince told D r . McAvoy about the fall from the

horse in 1999, as well as another incident in 1996 where she fell

on black ice and hurt her head. D r . McAvoy diagnosed her with

“probable musculoskeletal pain,” which he thought could be

contributing to her “possible atypical neuralgia involving the

left ear.” He tried a local anesthetic to reduce her pain, but

“only got a very limited response.” As for the twitching, D r .

McAvoy attributed it to Prince’s medication.

Around that time, Prince filed an administrative appeal

challenging Aetna’s denial of her disability claim. In early

June 2003, MetLife--which had replaced Aetna as the Plan’s claims

administrator--rejected her appeal, upholding Aetna’s decision.

“It is clear that [Prince] has complaints of ongoing pain,”

concluded MetLife’s reviewing doctor Janet S t . Claire, but “the

medical [information] that was provided does not substantiate her

inability to perform [a] sedentary job” or even “indicate [her]

degree of pain.” MetLife’s decision left Prince with only one

more administrative remedy under the Plan: a second and final

appeal to Verizon.

Before filing such an appeal, Prince continued to seek

medical treatment. Another neurologist, D r . Jeffrey Rind,

evaluated her in mid-June 2003. While acknowledging that “other

doctors have suggested this is probably a neuralgia” case, D r .

13 Rind found it “difficult to explain [Prince’s] ear discomfort and

pain,” or “where her head pain is.” He noted that there

“certainly could be some symptom exaggeration although I think

this is less likely.” He suggested that Prince, who had a long

history of lower back pain (even before she fell from the horse),

might be suffering from spine disease. To test that theory,

Prince went to see a neurosurgeon, D r . Theodore Jacobs, for a

spine evaluation. D r . Jacobs concluded that Prince’s spine was

indeed impinging on her nerve roots, but that “her symptoms do

not correlate” with a nerve root problem, and she “more likely”

had some sort of muscular or soft tissue problem.

Prince went to see her primary care physician, D r . Guiry,

again in July and August 2003 and reported having “aches all

over,” including but not limited to left ear pain, head and neck

pain, and a recurrence of back pain from her fall off the horse.

Prince explained that her head pain had worsened as her ear pain

improved, and she predicted that “if and when her head and neck

pain are dealt with, the ear pain may become more of a problem

again.” D r . Guiry concluded that Prince “has now developed

chronic severe pain syndrome” and prescribed a trial of morphine.

That proved to be too potent, however, causing Prince to act

“strangely” and resulting in a trip to the emergency room, where

she was diagnosed with a drug overdose. So D r . Guiry switched

Prince to a less potent pain reliever. D r . Guiry also ordered

14 another M R I , which again revealed nothing that would explain

Prince’s symptoms.

Prince retained counsel in August 2003 to represent her in

the final administrative appeal to Verizon. To support the

appeal, her counsel submitted hundreds of pages of medical

records and explained that Prince “continues to have significant

medical treatment relevant to her disability,” which counsel

would be “regularly obtaining” and then “immediately” submitting

for review. Her counsel specifically mentioned future

appointments with D r . Guiry, D r . McAvoy, and a new doctor,

psychologist Richard Berke. In response, Verizon informed Prince

that once it received certain paperwork (i.e., her medical

release and designation of counsel), its review committee would

consider her appeal “at its next meeting, generally held every

four to six weeks.” Prince submitted that paperwork in mid-

September. In addition, her counsel submitted another batch of

medical records in late September. He noted in his cover letter

that D r . Berke had begun testing Prince “but his computer broke

down and my client is still awaiting an updated appointment

date.”

In early October 2003, Prince’s counsel submitted two more

batches of medical records to Verizon, including an updated

15 report from D r . McAvoy.6 Based on Prince’s chronic and

increasingly widespread pain, D r . McAvoy had concluded that she

was likely suffering from fibromyalgia, which is a disease

“characterized by chronic and frequently difficult to manage pain

in muscles and soft tissues surrounding joints.” Cusson, 592

F.3d at 218 (citing Taber’s Cyclopedic Medical Dictionary 402

(19th ed. 2001)). He now considered it “doubtful” that Prince

“has any particular neurological problem” of the sort that he had

previously suspected. Still, D r . McAvoy “did not feel that

[Prince] was capable of being gainfully employed with her current

symptoms.” Prince’s counsel highlighted that statement in his

cover letter to Verizon and expressly “confirm[ed] that it is our

intention for [Prince’s] claim to be decided at the [review

committee’s next] meeting on October 1 6 , 2003.” The letter said

nothing about the status of D r . Berke’s testing.

Verizon reviewed and rejected Prince’s final administrative

appeal on October 2 1 , 2003, “due to a lack of medical evidence to

substantiate a total disability from her own occupation.” Dr.

Rukhsana Sadiqali, who analyzed Prince’s medical records on

behalf of the review committee, concluded that Prince “continues

to complain of excruciating pain in her left ear and back of her

6 Also included were some hearing test results, which indicated that Prince had normal hearing in her right ear, some “mild to moderate” high-frequency hearing loss in her left ear, and good speech discrimination in both ears. 16 head,” but “the documentation submitted has failed to support any

significant limitation, deficits, or impairment that would

prevent [her] from performing her occupation.” On October 2 8 ,

2003, Prince received a letter from Verizon explaining its

final decision.

Nearly a month later, Prince’s counsel requested that the

Verizon reconsider its decision in light of a “significant new

medical document” from D r . Berke, which had been issued on

November 1 0 , 2003. D r . Berke noted that Prince “reports falling

from a horse [in] 1999, and suffering . . . from a traumatic

brain injury, aggravated by fibromyalgia and major depression.”

Based on his own multi-day assessment, D r . Berke concluded that

Prince suffered from a “general loss of cognitive functioning and

proficiency, with severe cognitive slowing,” as well as

“delusions and/or hallucinations” (including a belief “that she

has special mystical powers”). He stated that “it would be

impossible for [Prince] to function effectively in a pressured

atmosphere with novel tasks, loud noise, and interruptions.”

Verizon declined, however, to reopen its decision in light of D r .

Berke’s report and appears not to have responded to the letter

from Prince’s counsel.7

7 At some point, Prince received a favorable decision from the Social Security Administration (SSA) awarding her full disability benefits retroactive to March 2003. Since it is not clear if that happened before Verizon’s decision, and since the

17 Prince brought an ERISA action against Verizon and MetLife

in this court nearly three years later, challenging their denial

of disability benefits. See Scoville v . Metro. Life Ins. C o . and

Verizon Commc’ns, Inc., N o . 06-cv-405-PB (D.N.H. Oct. 2 7 , 2006). 8

But the court dismissed her case without prejudice in November

2007 for failure to comply with the local rules governing ERISA

cases. See L.R. 9.4. Within a year of that dismissal, Prince

re-filed the action with new counsel.9 This time, she has

SSA’s decision is neither a part of the record nor mentioned in Prince’s motion for judgment, this court does not give it special weight, but rather considers it as one of many relevant factors. See Pari-Fasano v . ITT Hartford Life & Accident Ins. Co.,

(1st Cir. 2000) (noting that SSA decisions “are not binding” in ERISA cases and, while they “might be relevant,” usually “should not be given controlling weight”). 8 Prince’s last name used to be Scoville. 9 The defendants argue that Prince’s new action is barred by the statute of limitations, but this court disagrees. ERISA “supplies no statute of limitations so federal courts borrow the relevant statute of limitations from the forum state.” Island View Residential Treatment Ctr. v . Blue Cross Blue Shield of Mass., Inc.,

4 , 27 (1st Cir. 2008). Both parties agree that the most relevant New Hampshire statute is N.H. Rev. Stat. 508:4, which requires that personal actions be brought within three years. See Lund v . Citizens Fin. Group, Inc., N o . 97-cv- 183,

(D.N.H. Sept. 3 0 , 1999) (McAuliffe, D . J . ) . When borrowing a state’s statute of limitations under ERISA, courts also typically borrow any savings statute that might apply. See, e.g., Preston v . John Alden Life Ins. Co., N o . 1:05- cv-173,

, *3 (S.D. Ohio July 1 7 , 2006) (citing Coleman v . Dep’t of Rehab. & Corr.,

(6th Cir. 2002)); c f . Corliss v . City of Fall River,

(D. Mass. 2005) (applying savings statute to

claims, which also borrow the state limitations period). Here, New Hampshire has a savings statute, N.H. Rev. Stat. § 508:10, that allows a plaintiff whose original, timely action

18 complied with the local rules, as have the defendants, by jointly

filing a statement of material facts and each moving for judgment

on the administrative record. This court must therefore resolve

her case on the merits. Before doing s o , however, the court must

answer a threshold question about the scope of the administrative

record: whether it should include the post-denial medical report from D r . Berke.10

III. Scope of administrative record

As a general rule, “the final administrative decision acts

as a temporal cut off point” for the administrative record in an

ERISA case. Orndorf, 404 F.3d at 519; see also Lopes v . Metro.

Life Ins. Co.,

, 5-6 (1st Cir. 2003); Liston v . UNUM

Corp. Officer Severance Plan,

9 , 23 (1st Cir. 2003).

“The claimant may not come to a court and ask it to consider

post-denial medical evidence in an effort to reopen the

is dismissed without prejudice (as Prince’s was) to re-file it within one year of that dismissal, even if the limitations period otherwise would have expired. Prince complied with the savings statute, so her action is not time-barred (except in one limited respect, discussed in Part I I I , infra). 10 The parties briefed this issue separately earlier in the case. This court allowed Prince to submit D r . Berke’s report as part of the administrative record, but did so “without prejudice to any present or renewed argument by the defendants that the court should not consider [the report] in its eventual ruling.” Order dated Mar. 1 7 , 2009.

19 administrative decision,” because doing so would “shift the focus

from that decision to a moving target” and thereby “offend

interests in finality and exhaustion of administrative procedures

required by ERISA.” Orndorf, 404 F.3d at 519 (citing Liston, 330

F.3d at 2 4 ) . While this rule is not absolute, a “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 2 3 .

Prince argues that D r . Berke’s medical report--although

issued about three weeks after Verizon’s final decision--belongs

in the administrative record because Verizon knew “well in

advance” that D r . Berke’s testing was underway and nevertheless

“rushed to judgment” without waiting for his report. But Prince

never asked Verizon to wait for D r . Berke’s report; to the

contrary, she urged it to make a decision as soon as possible.

In a letter sent to Verizon after advising it that D r . Berke’s

testing had been delayed by computer troubles, Prince’s counsel

expressly “confirm[ed] that it is our intention for the claim to

be decided at the [review committee’s next] meeting” in mid-

October 2003. And so it was. Given that context, this court has

no reason to believe that Verizon rushed to judgment in an effort

to pre-empt D r . Berke’s report. Indeed, at the time of its

decision, Verizon had no idea whether D r . Berke’s report would be

favorable or unfavorable to Prince or when it would be finished.

20 Our court of appeals considered a similar issue in Lopes,

. There, the plaintiff filed an appeal with MetLife

after his disability benefits were terminated. In so doing, he

“promised to submit additional medical information.”

at 3 .

MetLife denied his appeal less than two months later, explaining

that “notwithstanding [the plaintiff’s] promise to submit

additional materials, ‘there were no current medical records in

file.’”

. During litigation, the plaintiff asked that

a doctor’s affidavit and a medical note “written several weeks

after MetLife’s final determination” be added to the

administrative record for purposes of judicial review.

at 5 .

As in this case, the plaintiff colored his request with

accusations of “improper motivation.”

at 4 . But the court

of appeals refused to consider the extra materials, limiting its

review to “the record available to the plan administrator” at the

time of its decision.

at 5 . If anything, this case presents

a less difficult question than Lopes, because Prince expressly

approved the timing of Verizon’s decision and had already

submitted plenty of current medical records.

Prince also argues that Verizon, even if justified in making

a decision when it did, should have reconsidered that decision

once she submitted D r . Berke’s report less than a month later.

By that point, however, nearly a year had passed since Prince

left work. Her disability claim had been reviewed and rejected

21 three times by three different entities (Aetna, MetLife, and

Verizon) based on their review of voluminous medical records from

more than half a dozen doctors. Moreover, the Plan made clear

that Verizon’s decision “shall be the final, conclusive, and

binding administrative remedy under the Plan.”11 Given the

“interests in finality and exhaustion of administrative

procedures required by ERISA,” Orndorf, 404 F.3d at 519 (citing

11 At oral argument, Prince’s counsel argued for the first time that the Plan required Verizon to consider D r . Berke’s report because a January 2002 update to the Plan’s summary description provided that “Verizon will not review your matter again [after the second appeal], unless new facts are presented.” (Emphasis added.) Counsel admitted that he had not presented that theory in his earlier filings. This court generally will not consider theories raised for the first time at oral argument, out of fairness to adverse parties and the court. See, e.g., Johnson v . Gen. Dynamics Info. Tech., Inc., --- F. Supp. 2d ---,

9 4 , at 8 n.9; Doe v . Friendfinder Network, Inc.,

8 8 , 309 n.19 (D.N.H. 2008). Because Prince easily could have and should have made the argument earlier, this court rejects it as untimely. Even if it were timely, however, Prince’s argument would fail on the merits. Like the Plan itself, the summary description expressly stated that the second appeal “is the final, conclusive and binding administrative remedy.” Indeed, ERISA regulations prohibit benefits plans from “requir[ing] a claimant to file more than two appeals of an adverse benefit determination.”

; see also Menz v . Procter & Gamble Health Care Plan,

(8th Cir. 2008). Given that context, it would be unreasonable to interpret the summary description’s caveat about “new facts”--which is stated negatively--as giving Prince an affirmative right to perpetual review of new medical records. Verizon clearly did not interpret it that way, and as administrator Verizon has “discretion to determine the intended meaning of the plan’s terms.” Stamp,

(1st Cir. 2008). On the facts of this case, Verizon did not abuse its discretion in refusing to reopen its final decision.

22 Liston, 330 F.3d at 2 4 ) , this court cannot fault Verizon for

standing by its decision and rejecting Prince’s request for yet

another layer of review. See id. (refusing to consider belated

medical evidence where “plaintiff had ample time to collect

records and had two administrative appeals”).

Prince seems to believe that Verizon rejected her request

not because it was too late, but rather because D r . Berke’s

report confirmed her disability and thus went against Verizon’s

financial self-interest. But this court sees nothing in the

record (or in D r . Berke’s report) to support that suspicion.

Moreover, Prince overstates the significance of D r . Berke’s

report. Contrary to her assertion that D r . Berke, a

psychologist, “concluded Plaintiff was ‘suffering sequela from a

traumatic brain injury, aggravated by fibromyalgia and major

depression,’” those were actually diagnoses that Prince herself

reported to D r . Berke as the findings of her medical doctors–-

doctors whose reports Verizon already had. While D r . Berke

certainly added some psychological findings of his own, including

a diagnosis of cognitive slowing, other doctors had made contrary

findings regarding Prince’s cognitive status. Thus, even if D r .

Berke’s report were part of the record under review, it would not

materially change this court’s substantive analysis. See, e.g.,

Vlass v . Raytheon Employees Disability Trust,

7 , 31 n.6

(1st Cir. 2001) (deeming additional evidence “of no consequence”

23 to ERISA case because the result would have been the same either

way).

Finally, Prince argues for the first time in her motion for

judgment that Verizon’s failure to consider D r . Berke’s report

violated her right to a “full and fair review” under ERISA, which

provides in relevant part:

In accordance with regulations of the Secretary [of Labor], every employee benefit plan shall . . . afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.

(2); see also

(implementing regulations). This claim is untimely, however,

because Prince failed to raise it not only in her complaint here,

but also in her original ERISA action before Judge Barbadoro,

upon which she relies as having tolled the statute of limitations

under New Hampshire’s savings statute. See supra note 9

(discussing that issue). As Prince’s counsel acknowledged at

oral argument, the savings statute generally does not apply to “a

new legal claim based on the same facts alleged in the first

lawsuit” but not raised until the second lawsuit. Moulton-

Garland v . Cabletron Sys., Inc.,

4 0 , 543 (1999). Thus,

Prince cannot raise a § 1133(2) claim for the first time now,

more than five years after Verizon’s final decision.

24 Even if this claim were timely, however, it would fail on

the merits. Prince has not shown the sort of “procedural

irregularity” or departure from “baseline procedural protections”

that might call into question the fullness or fairness of

Verizon’s review. See DiGregorio v . Hartford Comprehensive

Employee Benefit Serv. Co.,

(1st Cir. 2005).

The regulations under § 1133(2) do require plan administrators to

“take[] into account all comments, documents, records, and other

information submitted by the claimant” on administrative appeal,

(h)(2)(iv), but that requirement does not

apply to “additional medical evidence Plaintiff submitted after

her appeal was denied and [the administrator’s] decision was

final.”12 Miller v . Ameritech Long Term Disability Plan,

(C.D. Ill. 2008) (emphasis added); see also

12 Prince also alleges that Verizon failed to consider a medical report that she submitted shortly before its decision: the one from D r . McAvoy suggesting a “likely” diagnosis of fibromyalgia. She notes that D r . McAvoy’s report is never expressly mentioned in Verizon’s denial letter or internal reports. But Verizon stated in the denial letter that it had analyzed “all of the information available,” and the record strongly suggests that it considered Prince’s final submissions as they came i n . Prince’s counsel specifically highlighted D r . McAvoy’s findings in his final letter to the review committee. Under the circumstances, “it would be improper for the court automatically to assume that unless [Verizon] lists each item the examiner reviewed, he or she did not review it.” Cusson, 592 F.3d at 227 (citing Tsoulas v . Liberty Life Assurance Co.,

9 , 77 (1st Cir. 2006)). This court will, however, consider Dr. McAvoy’s report in analyzing whether the defendants abused their discretion in denying Prince’s disability claim.

25 McElroy v . SmithKline Beecham Health & Welfare Benefits Trust

Plan,

(3d Cir. 2003).

In sum, Prince has not offered a good enough reason “to

overcome the strong presumption that the record on review is

limited to the record before the administrator.” Liston, 330

F.3d at 2 3 . This court therefore declines to consider D r .

Berke’s report in its substantive analysis of Prince’s ERISA

claim, and likewise declines to remand the case to the defendants

for reconsideration in light of that report.

IV. Analysis

ERISA is a statutory framework that “Congress enacted . . .

to protect the interests of participants in employee benefit

plans,” Johnson v . Watts Regulator Co.,

(1st

Cir. 1995), and to “ensure that plans and plan sponsors would be

subject to a uniform body of benefits law.” N.Y. State

Conference of Blue Cross & Blue Shield Plans v . Travelers Ins.

Co.,

(1995). To promote those objectives,

ERISA provides that an employee who participates in an “employee

welfare benefit plan” (as defined in

(1)) may

bring a civil action against the plan’s administrator “to recover

benefits due to [her] under the terms of [her] plan.”

(a)(1)(B). Here, both sides agree that Verizon’s

26 disability plan qualifies as an employee welfare benefit plan

covered by ERISA and that Prince was one of its participants.

The relevant question, then, is whether § 1132(a)(1)(B) entitles

Prince to recover disability benefits.

Turning now to the merits of the case, this court must

decide whether the defendants abused their discretion by denying

Prince’s claim for sickness disability benefits under the Plan.

Prince argues she is entitled to benefits because the medical

evidence demonstrates that, beginning in December 2002, her ear

pain and other symptoms prevented her from working. The

defendants, while acknowledging Prince’s subjective reports of

pain, nevertheless denied her benefits because, in their view,

the medical evidence failed to establish that her pain truly

prevented her from working in a desk job. As explained above,

see supra Part I , this court need not agree with that conclusion

to uphold the denial. The decision must be upheld so long as it

was “reasoned and supported by substantial evidence.” Medina,

588 F.3d at 4 5 . This court concludes that it was and therefore

grants judgment to the defendants.13

As an initial matter, Prince’s counsel conceded at oral

argument that Prince’s doctors never reached a clear consensus

13 Indeed, Prince’s counsel conceded at oral argument that, unless D r . Berke’s report were added to the record, his client could not prevail under the abuse-of-discretion standard.

27 regarding the cause of her ear pain and other symptoms. Their

most common suggestion was “possible” neuralgia, but Prince’s

symptoms were not typical of that diagnosis, and some of her

doctors doubted i t . One of them, D r . McAvoy, came to believe as

Prince’s symptoms spread that she “likely” suffered from

fibromyalgia. Another doctor, D r . Guiry, attributed the

spreading symptoms to chronic pain syndrome. Yet another doctor,

Dr. Goodman, “suspect[ed] very strongly” that Prince suffered a

brain injury after falling off a horse years earlier, resulting

in fluid build-up and pressure inside her ear. But Prince’s

symptoms were not typical of that diagnosis either, according to

Dr. Guiry. And finally, various doctors suggested that Prince

might be suffering from physical manifestations of psychological

pain, including depression (again called “atypical”) and anxiety

disorder.

Prince appears to believe that she suffers from an

assortment of nearly all of these maladies, including

fibromyalgia, chronic pain syndrome, and depression. If she is

right, then the lack of a clear consensus among her doctors is

perhaps understandable. As the court of appeals recently noted,

“fibromyalgia is a disease that is diagnosed primarily based on a

patient’s self-reported pain symptoms” and “does not lend itself

to objective verification.” Cusson, 592 F.3d at 227 (quoting

Denmark v . Liberty Life Assurance Co.,

6 , 37 (1st Cir.

28 2007), vacated on other grounds,

(1st Cir. 2009)).

Moreover, the presence of other problems, such as chronic pain

syndrome and depression, could make diagnosis even more

difficult. In any event, this court need not dwell too long on

Prince’s proper diagnosis, because the critical issue here is not

whether the cause of her symptoms has been diagnosed with

absolute certainty, but rather whether her symptoms (whatever

their cause) prevented her from performing her job.

Our court of appeals has made clear that while conditions

like “fibromyalgia may not lend themselves to objective clinical

findings, the physical limitations imposed by the symptoms of

such illnesses do lend themselves to objective analysis.”

Boardman v . Prudential Ins. C o . of Am.,

, 16 n.5 (1st

Cir. 2003) (citing Cook v . Liberty Life Assurance Co.,

1 , 21 (1st Cir. 2003)). Thus, “it is permissible to require

objective support that a claimant is unable to work as a result

of such conditions.” Desrosiers v . Hartford Life & Accident Ins.

Co.,

7 , 93 (1st Cir. 2008); see also Cusson, 592 F.3d

at 227 (“requiring objective evidence that the plaintiff is

unable to work . . . is allowed”) (quoting Denmark,

). Not everyone with such illnesses has been able to make the

requisite showing. See, e.g., Richards v . Hewlett-Packard Corp.,

3 2 , 241 (1st Cir. 2010) (affirming termination of

disability benefits for patient with fibromyalgia and chronic

29 fatigue); Cusson,

(affirming termination of

disability benefits for patient with fibromyalgia).

Here, the record casts serious doubt on whether Prince’s ear

pain and other symptoms prevented her from working in a desk job.

Many of her doctors seemed to question (subtly or not so subtly)

the intensity of her pain. Early o n , D r . Guiry commented that

Prince’s “pain seems to be out of proportion to the objective

signs.” Similarly, D r . House commented that Prince claimed to be

“in agonizing pain but does not look to be in pain at all” and

“strongly encouraged her to get back to work.” Later o n , D r .

Rind also found it difficult to explain “where her head pain is”

and suggested the possibility of “symptom exaggeration.” Coming

from Prince’s own doctors, these comments (and others like them)

lend substantial support to the defendants’ decision to deny her

disability claim. See, e.g., Gannon v . Metro. Life Ins. Co.,

1 1 , 213 (1st Cir. 2004) (citing evidence of symptom

exaggeration in upholding termination of disability benefits);

Matias-Correa v . Pfizer, Inc.,

, 12 (1st Cir. 2003)

(same).

Moreover, the record suggests that Prince had an almost a

priori commitment to her disability claim. As her original

symptoms changed and even improved (e.g., her ear pain “got[]

much better,” as apparently did her dizziness, double vision, and

30 fatigue), she inevitably reported new symptoms that took their

place and thereby maintained her inability to work. She even

predicted at one point that “if and when her head and neck pain

are dealt with, the ear pain may become more of a problem again.”

And at times, her new symptoms seemed to follow from her

preferred diagnosis, rather than the other way around. In

particular, after D r . Goodman suggested that Prince may have

sustained a brain injury when she fell from a horse three years

earlier, Prince soon began to emphasize neck and back pain and

cognitive challenges, even more so than the original symptoms

that had led her to stop working. While certainly not

dispositive, this circumstantial evidence lends further support

to the defendants’ decision. C f . Leahy, 315 F.3d at 19 (citing

evidence of “highly suspicious” timing in upholding the denial of

disability benefits).

Prince stresses that some of her doctors expressly concluded

she was unable to work (as did the Social Security

Administration). That is true, and indeed is the strongest

evidence in her favor. But such evidence is “by no means

unassailable,” particularly given that another doctor (Dr. House)

expressly reached the opposite conclusion. Gannon, 360 F.3d at

215 (upholding termination of disability benefits even though the

claimant’s doctors “consistently opined that [she] was unable to

work”). As the Supreme Court has noted, “a treating physician,

31 in a close case, may favor a finding of ‘disabled.’” Black &

Decker Disability Plan v . Nord,

2 2 , 832 (2003). That

appears to be what happened here. The record suggests that

Prince’s doctors essentially deferred to her subjective claims of

disability.14 They offered little, if any, specific explanation

for how Prince’s symptoms would prevent her from performing her

job tasks. And as her symptoms changed, they engaged in little,

if any, critical reassessment of her ability to work. “[A]n

insurer is not required to blindly accept conclusory findings

provided by an insured’s physician.” Few v . Liberty Mut. Ins.

Co.,

2 7 , 28 (citing Brigham v . Sun Life of Can.,

2 , 84 (1st Cir. 2003)).

In her motion for judgment, Prince quotes extensively from

the portions of her medical records where her doctors recorded

what she told them about her symptoms and how they were affecting

her (e.g., “Her pain is ongoing, and, by the patient’s report,

quite debilitating”). But a patient’s subjective claims of

disability do not acquire objectivity or independence merely by

virtue of being transcribed in a doctor’s note. Of course, the

reason that Prince has to rely so heavily on her self-reporting

14 This is particularly true of D r . Guiry, who advised Prince to return to work in mid-November 2002 but then, apparently at Prince’s urging, reported to Aetna in early December 2002 that Prince was disabled, without even having seen Prince in the interim.

32 is because, as the defendants rightly observed in denying her

claim, the record offers little else. That lack of evidence

counts against Prince here, since “it is [her] responsibility to

prove [her] claim.” Morales-Alejandro v . Med. Card Sys., Inc.,

(1st Cir. 2007); see also Cusson,

(“it was not inappropriate for [the claims administrator in a

fibromyalgia case] to rely on the lack of . . . documented

evidence”); Brigham, 317 F.3d at 85 (not arbitrary to demand

objective evidence “in addition to [a] doctor’s inconsistent or

unexplained conclusions”).

At the very least, the record here is “capable of supporting

competing inferences as to the extent of the plaintiff’s ability

to work.” Leahy, 315 F.3d at 18-19. This court need not decide

which of those inferences it finds more persuasive. “[U]nder the

applicable standard of review, the question is not which side

[this court] believe[s] is right, but whether the insurer had

substantial evidentiary grounds for a reasonable decision in its

favor.” Matias-Correa v . Pfizer, Inc.,

, 12 (1st Cir.

2003). The defendants had a substantial basis for denying

Prince’s disability claim on this record. Even taking into

account Verizon’s structural conflict, see supra Part I , the

defendants did not abuse their discretion. This court therefore

upholds the denial of Prince’s disability claim and grants

judgment to the defendants. See Medina, 588 F.3d at 46 (“in the

33 presence of conflicting evidence, it is entirely appropriate for

a reviewing court to uphold the decision of the entity entitled

to exercise its discretion”).

In light of that decision, Prince’s request for attorney’s

fees and costs is also denied. ERISA provides that “the court in

its discretion may allow a reasonable attorney’s fee and costs of

action to either party.”

(g)(1). “Naturally,

such awards are normally for the prevailing party, if at all, and

are based on rather general considerations such as fault, ability

to pay, deterrence, and the like.” Doe v . Travelers Ins. Co.,

3 , 61 (1st Cir. 1999); see also Medina, 588 F.3d at 4 9 .

Prince has not shown that any of those considerations favor a

departure from the normal practice here.

V. Conclusion

For the reasons set forth above, the defendants’ motion for

judgment on the administrative record15 is GRANTED, and the

plaintiff’s motion for judgment on the administrative record16 is

DENIED. The clerk shall enter judgment accordingly and close the

case.

15 Document n o . 2 2 . 16 Document n o . 1 9 .

34 SO ORDERED.

Joseph N La __ lante United States District Judge

Dated: March 1 6 , 2010

cc: Jared P. O’Connor, Esq. William D. Pandolph, Esq.

35