                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                                                           F I L E D
                                                                            October 6, 2003
                  IN THE UNITED STATES COURT OF APPEALS
                                                                       Charles R. Fulbruge III
                            FOR THE FIFTH CIRCUIT                              Clerk



                                   No. 03-30361
                                 Summary Calendar



      BEVERLY MOUTON,

                                                    Plaintiff-Appellant,

                                      versus

      FRESENIUS MEDICAL CARE OF NORTH AMERICA,
      FRESENIUS MEDICAL CARE OF NORTH AMERICA
      LONG TERM DISABILITY PLAN; LIBERTY LIFE
      ASSURANCE COMPANY OF BOSTON; FRESENIUS
      MEDICAL CARE MEDICAL PLAN; FRESENIUS
      MEDICAL CARE RETIREMENT PLAN; FRESENIUS
      MECIDAL CARE DENTAL PLAN,

                                                    Defendants-Appellees.


                  Appeal from the United States District Court for
                         the Middle District of Louisiana
                            (USDC No. 01-CV-932-D)
          _______________________________________________________


Before REAVLEY, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*



      *
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
      Beverly Mouton sued her employer, Fresenius Medical Care North American

(“Fresenius”), and others under the Employee Income Retirement Security Act. See

29 U.S.C. §§ 1132(a)(1)(B), 1132(a)(3). The district court granted summary

judgment for Fresenius after determining that the Claims Administrator, Liberty

Mutual Life Asssurance Co. (“Liberty”), did not abuse its discretion by finding that

the administrative record lacked objective medical evidence of Mouton’s disability.

We affirm.

1.    Mouton first argues that the decision of Liberty should be reviewed de novo.

      In the district court, Mouton argued for de novo review because the decision

      was made by the Claims Administrator, Liberty, rather than the Plan

      Administrator, Fresenius. The district court rejected this argument, finding

      that there is an express delegation of the Plan Administrator’s claims

      adjudication and benefits determinations to a Claims Administrator, who has

      also been delegated authority to determine appeals of its benefits and claims

      decisions. See Dist. Ct. Op. at 6.

2.    On appeal, Mouton changes course and concedes that the plan gave Liberty

      discretionary authority to determine eligibility for benefits and to construe the




set forth in 5TH CIR. R. 47.5.4.

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     terms of the plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,

     115 (1989) (explaining that an ERISA Plan Administrator’s denial of benefits

     is reviewed de novo “unless the benefit plan gives the administrator or

     fiduciary discretionary authority to determine eligibility for benefits or to

     construe the terms of the plan.”). Mouton now claims that Liberty disclaimed

     that authority, and thus de novo review is proper.

3.   We do not reach this issue because we find that Mouton failed to properly

     raise it in the district court. “We will not consider an issue that a party fails

     to raise in the district court, absent extraordinary circumstances.

     Extraordinary circumstances exist when the issue involved is a pure question

     of law and a miscarriage of justice would result from our failure to consider

     it.” N. Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th

     Cir. 1996) (footnotes omitted). First, this is not a pure question of law, for its

     resolution would require the court to make a factual determination regarding

     whether Liberty intended to disclaim its discretionary authority. Second,

     Mouton has not explained what “extraordinary circumstances” exist justifying

     consideration of this forfeited issue. Thus, we decline to consider Mouton’s

     argument and apply the abuse of discretion standard of review.

4.   Under an abuse of discretion standard of review, a Plan Administrator’s

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     denial of benefits will be subject to reversal only if it is arbitrary or

     capricious. See Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168

     F.3d 211, 215 (5th Cir. 1999). It is arbitrary and capricious if the record

     lacks substantial evidence to support the Plan Administrator’s benefit

     determination. See id. When determining whether a Plan Administrator

     abused its discretion in making a factual determination, the court examines

     the record before the administrator when the claim was denied. Vega v. Nat’l

     Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999).

5.   Under the plan, a claimant is required to “give the employer proof in the form

     of objective evidence of continued: (a) Disability; and (b) required regular

     attendance of a Physician. The proof must be given upon the Plan’s request

     and at the Covered Person’s expense.” Fresenius Plan §§ 3.1, 4.1. Liberty

     concluded that Mouton failed to provide such evidence. Mouton does not

     contend that Liberty interpreted the plan incorrectly by requiring objective

     medical evidence of continued disability. Thus, the question is whether it was

     arbitrary or capricious for Liberty to conclude that the record lacked objective

     medical evidence of Mouton’s disability.

6.   Mouton contends that Liberty’s decision was an abuse of discretion “[s]ince

     her job required her to sit to perform most of her duties, and she couldn’t sit

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     for more than 15 or 20 minutes at a time because of pain, [and thus] could not

     perform all of her duties.” Liberty concluded that there was no evidence that

     sitting for more than 20 minutes at a time was a material and substantial duty

     of her occupation. The Physical Job Evaluation Form completed by

     Mouton’s employer stated that Mouton’s job allowed her to change positions

     frequently and that “[b]ecause of back problems, [the] employee is not

     allowed to do any lifting or prolonged sitting or typing.” This statement could

     mean either that Mouton’s employer did not require or allow Mouton to sit or

     type for prolonged periods, or it could mean that Mouton’s physician placed

     restrictions on her physical activities. Liberty’s interpretation of the

     statement—that her employer did not require or allow Mouton to sit or type

     for prolonged periods—was not unreasonable. Thus, it was not an abuse of

     discretion for Liberty to conclude that Mouton’s inability to remain seated for

     prolonged periods did not mean she was unable to perform a material and

     substantial duty of her job.

7.   Mouton also argues that “she met the definition of disability in 1997 and

     1998, but she tried to work through the pain in the hope she would get better.

     She finally had to admit that she was not able to do her work, and she applied

     for disability.” According to Liberty, however, there was a lack of medical

                                          5
     evidence supporting the worsening of Mouton’s condition between 1998 and

     2000. Mouton has not suggested that this evidence exists, nor does she argue

     that her conditions actually worsened. Instead, she contends it took her three

     years to realize that she was not able to do her work and that she should not

     be punished for working through her pain. However admirable her

     perseverance was, it also permits the inference that she was able to perform

     the material and substantial duties of her job while experiencing the level of

     neck and back pain she experienced in 1998. Dr. Roger G. West compared

     Mouton’s 1998 lumbar MRI to her 2000 lumbar MRI, and concluded that the

     2000 MRI showed no interval change. Additionally, Mouton’s treating

     physician, Dr. Paul Kramm, never explained how, why, or to what extent

     Mouton’s condition worsened during that time. The objective medical

     records showed no change in her back and neck condition from 1998 to 2000,

     and Liberty did not abuse its discretion in so concluding.

8.   Mouton also argues that Liberty abused its discretion by finding that she was

     not disabled because she cancelled an appointment with an orthopedic

     surgeon to treat her frozen right shoulder and because she showed

     improvements in her shoulder range of motion. There was nothing arbitrary

     or capricious about Liberty’s determination that Mouton was not disabled by

                                         6
      her shoulder pain, as the medical records indicate that her shoulder pain

      “resolved” between her application for short-term disability benefits and

      Liberty’s termination of those benefits. See P.’s Ex. 7 at 43.

9.    Mouton argues that Liberty abused its discretion by rejecting the expert

      opinion of her treating physician, Dr. Kramm, on the ground that the opinion

      is not supported by objective medical evidence. Specifically, she contends

      that Liberty ignored her disabling level of pain resulting from the myriad of

      her impairments, and that the court should apply Lain v. UNUM Life

      Insurance Co. of America, 279 F.3d 337 (5th Cir. 2002), and hold that

      Liberty abused its discretion.

10.   Lain is distinguishable. First, the reviewing court made a de novo

      interpretation of the records and determined there was a conflict of interest

      between the plan’s administrator and insurer, so that the administrator’s

      factual determinations were given less deference than is appropriate in this

      case. Second, UNUM had incorrectly interpreted the plan, which the court

      cited as a strong indicator of arbitrary and capricious behavior. Third, Lain

      was given pain medication that did not work, while Mouton’s records

      indicate a positive response to her pain prescriptions. Fourth, the

      administrator in Lain misrepresented the objective test results justifying its

                                          7
      denial by claiming they were normal when instead they were “abnormal” and

      at times “top normal.” There is no suggestion that Liberty misinterpreted

      objective test results, as no such results existed. Thus, the Lain court’s

      conclusion that the Plan Administrator erred by “fail[ing] to take into account

      that Lain’s chest pains cannot be clinically measured by tests” and

      “focus[ing] on the tests, rather than the pain and its effect” is not controlling.

      Id. at 347. In Lain, UNUM’s own staff physician determined that he “[could]

      neither validate nor refute the claimant’s subjective pain complaints though

      the consistency across multiple providers and the presentations of

      pyscho[logical] eval[uations] suggest a real ongoing problem.” Id. In the

      present case, there is no evidence of Mouton’s pain in the form of objective

      medical testing and no medical opinions discussing the pain she experiences.

11.   Mouton also argues that Liberty should have requested objective medical

      evidence in the form of her medical records for the records custodian at the

      Ochsner Clinic, where she was treated by Dr. Kramm, rather than directly

      from Dr. Kramm. Of course, Dr. Kramm could have forwarded any requests

      to the proper party at Ochsner, and he never informed Liberty that he could

      not secure the records or even that it would be easier if Liberty asked

      someone else for the records. In any event, the Plan places the burden of

                                           8
      obtaining the required records on the claimant. See Fresenius Plan § 3.1

      (providing a claim will be paid “if the Covered Person gives the employer

      proof in the form of objective evidence” upon request). Thus, Dr. Kramm’s

      failure to provide the necessary medical evidence is imputed to Mouton.

12.   After reviewing the administrative record with careful attention to the medical

      records cited by Mouton, particularly the letter from Dr. Kramm to Liberty

      dated September 8, 2000, the orthopedic notes of Dr. William J. Hubbard

      dated April 11, 2001, and the letter from Dr. Kramm to Liberty dated May 3,

      2001, we cannot say that Liberty abused its discretion by denying Mouton’s

      claim. Liberty did not ignore Mouton’s pain, but instead looked to the

      medical records to substantiate it. Those records lack any discussion of the

      level of pain Mouton experiences, and the restrictions and limitations noted

      therein do not suggest that Mouton could not perform her sedentary

      occupation. Additionally, Dr. Kramm’s opinion that Mouton is disabled was

      conclusory and unsupported by medical testing, an explanation of how

      Mouton’s condition deteriorated between 1998 and 2000, or a discussion of

      Mouton’s restrictions and limitations. The administrative record does not

      suggest that Mouton’s inability to sit for prolonged periods would render her

      unable to perform her sedentary job. Thus, it was not an abuse of discretion

                                         9
for Liberty to conclude that Mouton was not disabled within the meaning of

the Fresenius Plan.

AFFIRMED.




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