                                                                                 FILED
                                                                     United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                            April 3, 2020
                        _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 TRACY O. and DANTE O., individually
 and as guardians of S.O., a minor,

       Plaintiffs–Appellants,

 v.                                                         No. 17-4135
                                                      (No. 2:16-CV-00422-DB)
 ANTHEM BLUE CROSS LIFE AND                                   (D. Utah)
 HEALTH INSURANCE; ANTHEM UM
 SERVICES, INC.,

       Defendant–Appellee.
                     _________________________________

                            ORDER AND JUDGMENT
                        _________________________________

Before BRISCOE, BALDOCK, and EID, Circuit Judges.
                   _________________________________

      Appellants Dante O. and Tracy O. were enrolled in a health benefits plan

insured by Appellees Anthem Blue Cross Life and Health Insurance Company and

administered by Anthem UM Services, Inc. (together, Anthem). The plan1 only

covered psychiatric treatment that Anthem determined to be “medically necessary.”

Dante O. and Tracy O. sent their daughter, S.O., to a residential psychiatric treatment


      
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
         As explained more in-depth in Section II.A, we consider “the plan” to be
both the Combined Evidence of Coverage and Disclosure form and the Group Benefit
Agreement documents presented in the administrative record.
center for ten months to address her significant mental health problems. Anthem

determined that residential psychiatric treatment was not medically necessary for

S.O. and denied coverage. After exhausting administrative remedies, Dante O. and

Tracy O. sued Anthem. The district court granted summary judgment to Anthem,

holding that the adverse health benefits decision passed muster under either an

arbitrary and capricious or de novo review.

      The language of the plan provides that “THE BENEFITS OF THIS PLAN

ARE PROVIDED ONLY FOR THOSE SERVICES THAT WE DETERMINE

TO BE MEDICALLY NECESSARY.” Our court’s reasoning in Eugene S. v.

Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1131 (10th Cir. 2011),

dictates that a health benefits plan “grants discretion to the plan administrator in

reviewing benefits claims” when the “plan language” gives discretionary authority to

a plan administrator. See, e.g., id. at 1132 (entrusting the “medically necessary”

determination to the administrator). We conclude the plan in this case gives such

discretion to Anthem, and that its decision to deny residential coverage stands unless

it is arbitrary and capricious. We conclude that such a showing has not been made,

and thus affirm the district court’s judgment.

                                                I.

      Dante O.’s employer, California Commerce Club, Inc., provided a fully-

insured employee group health benefits plan governed by the Employee Retirement

Income Security Act (ERISA), 29 U.S.C. §§ 1001–1461. Anthem Blue Cross is the

insurer of the plan, and Anthem UM Services, Inc. handles plan claims and appeals.

                                            2
The two plan documents that have been produced are the Combined Evidence of

Coverage and Disclosure form (Evidence of Coverage form) and the Group Benefit

Agreement. See App. 182 (Order at 5); see also id. at 191 n.6 (Order at 14 n.6).2

According to those documents, Anthem will pay for psychiatric treatment that is

“medically necessary,” id. at 182 (Order at 5), and Anthem makes the determination

of medical necessity. Indeed, under the Evidence of Coverage form, “THE

BENEFITS OF THIS PLAN ARE PROVIDED ONLY FOR THOSE SERVICES

THAT WE DETERMINE TO BE MEDICALLY NECESSARY.” Id.

      Residential psychiatric treatment—treatment at a “24 hours per day” facility

with at least one doctor visit per week, id. at 183 n.3 (Order at 6 n.3)—qualifies for

coverage under the plan if three criteria are met:

      1. The Covered Individual is manifesting symptoms and behaviors which
         represent a deterioration from their [sic] usual status and include either
         self injurious or risk taking behaviors that risk serious harm and
         cannot be managed outside of a 24 hour structured setting.
      2. The social environment is characterized by temporary stressors or
         limitations that would undermine treatment that could potentially be
         improved with treatment while the Covered Individual is in the
         residential facility.
      3. There should be a reasonable expectation that the illness, condition or
         level of functioning will be stabilized and improved and that a short
         term, subacute residential treatment service will have a likely benefit


      2
         The parties initially designated a significant portion of the appendix be sealed
for the protection of sensitive medical information. Upon order of this court, the
parties agreed to unseal all documents that did not contain personal health
information or had been previously discussed by the parties in their briefing or by the
district court. The parties have also agreed to file a redacted version of the Group
Benefit Agreement. We therefore do not cite to, or quote, anything here that is not
contained in the now-unsealed portions of the appendix or quoted by the parties in
their unsealed briefing or the district court in its opinion below.
                                           3
           on the behaviors/symptoms that required this level of care, and that
           the Covered Individual will be able to return to outpatient treatment.
Id. at 183 (Order at 6).

      After years of medical issues, including diagnoses of generalized anxiety

disorder, major depressive disorder, borderline personality tendencies, bulimia

nervosa, obsessive-compulsive disorder, and autism spectrum disorder, S.O. was

admitted to New Haven Residential Treatment Center in Utah. Id. at 181 (Order at

4). S.O. lived at New Haven for ten months. Aple. Br. at 19. Early in her time at

New Haven, Dr. Rick Biesinger psychologically evaluated S.O., stating that at the

time she “denied having any suicidal ideation.” App. 181 (Order at 4). S.O. initially

told Dr. Biesinger she cut herself once a day, but eventually explained the last time

she did so was “two months ago.” Id.

      A few days after S.O.’s admission to New Haven, Dante O. and Tracy O.

asked Anthem to certify that S.O.’s care was covered by the plan by seeking a pre-

authorization. Dr. Richard Cottrell, a psychiatrist, determined that S.O. did not meet

the requisite criteria for residential treatment but could be treated at an outpatient

facility. Id. at 185 (Order at 8). Anthem denied coverage because it determined that

the service was not “medically necessary” based on the information Anthem had

received from the service provider and the recommendation of Anthem’s evaluating

physician, Dr. Timothy Jack. Id. at 184 (Order at 7). Anthem’s medical reviewer,

Dr. Marina Bussel, echoing Dr. Cottrell, explained: “You went to this program

because your behavior could be harmful to yourself or others. You have not caused

serious harm to anyone. You have not harmed yourself to such a degree that has

                                            4
caused serious medical problems. You have not had recent treatment for this in a

structured outpatient program. You are also likely to benefit from structured

outpatient treatment.” Id. at 185 (Order at 8).

       Dante O. and Tracy O. appealed Anthem’s denial of coverage. To substantiate

the medical necessity of S.O.’s treatment at New Haven, Dante O. and Tracy O.

submitted a letter by Dr. Linda Woodall, S.O.’s treating psychiatrist. Aplt. Br. at 20.

The letter reads, in part:

       [S.O.] had had a previous psychiatrist at age 6 years old for lability and
       OCD. As her disorder progressed, however, she began to have clear
       psychotic symptoms with and without severe mood swings. She
       exhibited dangerous behavior: binge eating, purging, restricted eating,
       severe weight loss, cutting, and hypersexuality. . . . Unfortunately, she
       became frankly psychotic by 3/24/11, with suicidal ideation . . . This is
       clearly a very disturbed young woman who has been difficult to manage,
       both medically and behaviorally, with traditional care. Her
       Schizoaffective disorder, bipolar type, dangerous behavior, and eating
       disorder warrant long-term residential treatment.

Id. at 20–21. Dante O. and Tracy O. also submitted a letter by S.O.’s therapist, Carol

Maskin, who stated that S.O. “had too many triggers in her environment to be able to

use the tools she learned in therapy. . . . [S]he was extremely symptomatic and on a

daily basis there was concern for her safety. . . . based upon my experience of

working with adolescents, it was clear to me that [S.O.] would only get worse or even

succeed at suicide.” Id. at 21.

       Dr. Donald Mayes, an Anthem doctor, reviewed S.O.’s coverage eligibility in

light of Dante O. and Tracy O.’s appeal. App. 187 (Order at 10). Anthem

maintained its denial, concluding, based in part on Dr. Mayes’ conclusions, that New


                                           5
Haven was not “medically necessary.” Id. at 188 (Order at 11). It noted S.O.’s

problems “had been going on for some time” and concluded that she “could be safely

treated with outpatient services.” Id. Anthem notified Dante O. and Tracy O. its

decision was “final,” and that their “grievance rights with [Anthem] are exhausted.”

Id. Anthem’s letter also advised Dante O. and Tracy O. of their ability to seek an

independent medical review from the California Department of Managed Health Care

(DMHC). Id.

      Dante O. and Tracy O. requested the DMHC conduct an independent review of

Anthem’s coverage denial. Id. In their letter to the DMHC, they argued that Anthem

failed to meaningfully engage with their evidence and arguments. Aplt. Br. at 22–23.

The DMHC assigned the matter to MAXIMUS Federal Services, Inc., a private

contractor that reviews adverse health benefits decisions. App. 188 (Order at 11).

MAXIMUS upheld Anthem’s determination that residential treatment at New Haven

was not medically necessary. Id. at 189 (Order at 12). Specifically, MAXIMUS

concluded that, prior to admission at New Haven, there was no evidence that S.O.

“was actively suicidal with intent or plan to harm herself during the period at issue.”

Id. at 190 (Order at 13). Therefore S.O. “did not require 24-hour supervision in a

residential setting and could have safely been treated at a lower level of care.” Id.

      Dante O. and Tracy O. sued Anthem under ERISA, which provides for judicial

review of benefits determinations. 29 U.S.C. § 1132(a)(1)(B). Both parties moved

for summary judgment. The district court determined the “Group Benefit

Agreement,” and by incorporation the “Combined Evidence of Coverage and

                                           6
Disclosure Forms,” “constitute the plan documents in this case.” App. 191 n.6

(Order at 14 n.6). The district court granted Anthem’s motion and denied Dante O.

and Tracy O.’s motion, see id. at 178–97 (Order), because while there had been

“some deterioration of S.O.’s symptoms,” the court reasoned the deterioration was

not beyond the behaviors S.O. had “consistently” exhibited since middle school, id.

at 193 (Order at 16). The court determined Anthem’s decision was entitled to

deference and that the denial of benefits was not “arbitrary and capricious.” Id. at

194 (Order at 17). The court also concluded Anthem’s decision would stand even

under de novo review. Id. Dante O. and Tracy O. appealed. We first review whether

Anthem’s denial of health benefits is entitled to deference and conclude that it is.

We then review whether Anthem’s decision to deny S.O. residential treatment

coverage was arbitrary and capricious. We conclude it was not.

                                           II.

                                           A.

      At the outset, we must determine which documents comprise the governing

plan in this case. The administrative record contains the two documents Anthem

produced below: the Group Benefit Agreement and the Evidence of Coverage form.

We agree with the district court’s conclusion that together both the Group Benefit

Agreement and the Evidence of Coverage form comprise the plan. Id. at 191 n.6

(Order at 14 n.6).

      First, we conclude that the Group Benefit Agreement is the governing plan

instrument between the parties. App. 2767–83. Signed by the president and

                                           7
secretary of Anthem, the Group Benefit Agreement bears all the hallmarks of a

governing health insurance contract. It lists the plan’s effective date, states the

conditions for contract acceptance and termination, chooses to be governed by

California law, explains how the agreement can be amended, requires group

beneficiaries to indemnify Anthem if unauthorized confidential disclosures are made,

and addresses obligations arising from the Health Insurance Portability and

Accountability Act (HIPAA). App. 2767–74. The Group Benefit Agreement also

defines the circumstances in which parole evidence can be used, and the effect of

clerical errors on plan coverage. Id. Most importantly, the Group Benefit Agreement

does not refer the reader to a different document for particular terms; rather, it states

the plan’s “benefits are subject to all of the terms and conditions of this agreement.”

Id. (emphasis added).

      The second document in the record that we consider is the Evidence of

Coverage form, which provides the following:

      This Combined Evidence of Coverage and Disclosure (Evidence of
      Coverage) Form is a summary of the important terms of your health plan.
      The health plan contract must be consulted to determine the exact terms
      and conditions of coverage. . . . Your employer will provide you with a
      copy of the health plan contract upon request.


App. 55 (emphasis added). The “summary” language suggests the Evidence of

Coverage form serves as a summary plan description (SPD), and we treat it as such.

Indeed, an SPD is a plain language explanation of the “rights and obligations” given




                                            8
to plan beneficiaries. 29 U.S.C. § 1022(a). And that is precisely what the Evidence

of Coverage form does in this case.

      Importantly, the Group Benefit Agreement incorporates the Evidence of

Coverage form. In the section titled “General Provisions,” the Group Benefit

Agreement states “[t]he entire agreement consists of”:

      1. these administrative pages, including any endorsements;
      2. all Combined Evidence of Coverage and Disclosure Forms, including any
         amendments, which are made a part of this agreement;
      3. the application of the group; and
      4. the individual applications, if any, of eligible persons.

App. 2769 (emphasis added and other italics removed).3 Accordingly, the district

court concluded the Group Benefit Agreement, and by incorporation the Evidence of

Coverage form, “constitute the plan documents in this case.” App. 191 n.6 (Order at

14 n.6). We agree. The Group Benefit Agreement is the governing plan document,

and its incorporation by reference of the Evidence of Coverage form renders both

documents, read together, the plan in this case.

      Any doubt that the Group Benefit Agreement can incorporate the Evidence of

Coverage form as one of the plan documents is dispelled by Eugene S. There, this

court held that when “the insurer . . . demonstrate[s] that the SPD is part of the


      3
         Dante O. and Tracy O. argue the Group Benefit Agreement was never
“distributed to [p]lan participants and beneficiaries.” Aplt. Br. at 32. They do not
cite any Tenth Circuit authority for this proposition. Moreover, there is no statutory
duty under ERISA to “distribute” a plan; the statute states only that the SPD must be
made “available.” 29 U.S.C. § 1024(b)(2) (“The administrator shall make copies of
the latest summary plan description . . . available for examination by any plan
participant or beneficiary . . . .”). Id.

                                            9
[p]lan” by pointing to the text of the plan, the SPD is binding. Eugene S., 663 F.3d at

1131–32. In Eugene S., the court concluded the SPD was binding because the

“Certificate of Coverage” listed the SPD as part of the entire “Group Policy.” Id. at

1132. Under such circumstances, the SPD is not just about the plan, “it is the Plan.”

Id. at 1131. Like the certificate of coverage document in Eugene S., here the Group

Benefit Agreement incorporates an SPD, the Evidence of Coverage form. We

recognize that, unlike in Eugene S., the Evidence of Coverage form does not state it

is part of the plan; instead, the governing plan document incorporates the SPD. Id. at

1131. However, we do not see this as being a meaningful distinction. If the SPD can

make itself a part of the plan, then the governing documents can incorporate the SPD.

      It is true that, as Dante O. and Tracy O. point out, the Evidence of Coverage

form directs the reader to consult the “health plan contract” for “the exact terms.”

App. 55. There is no document in the administrative record labeled “health plan

contract,” nor does the record contain an overarching master plan document.

However, the parties have never disputed that a “health plan contract” was not

produced below, and agree that a master plan document “does not exist.” See id. at

83 (Appellants’ summary-judgment response arguing “it is undisputed in this case

that a master [p]lan document does not exist and is not before the Court”); Aple. Br.

at 26–28 (arguing no documents are missing from the administrative

record). Significantly, Dante O. and Tracy O. have never argued, and do not argue

before us, that the lack of an overarching master plan document precludes review of



                                          10
their claim. Instead, they argue that the language in the Evidence of Coverage form

does not provide for discretionary review, an argument that we reject below.

      As noted above, the administrative record contains the two documents Anthem

produced below, the Group Benefit Agreement and the Evidence of Coverage form.

For the reasons stated above, we conclude that the two documents comprise the plan

and that, in particular, the Evidence of Coverage form is part of the plan because it is

incorporated by reference in the Group Benefit Agreement. But even if the Evidence

of Coverage form were just an SPD and not incorporated as a governing plan

document, we would still be permitted to treat it as the plan if the parties have done

so. As the Supreme Court explained in U.S. Airways v. McCutchen, where the parties

“have treated the language from the summary description as though it came from the

plan, we do as well.” 569 U.S. 88, 92 n.1 (2013). Here, in noting the limited record,

the parties have treated the Evidence of Coverage form, an SPD, as the governing

document for all intents and purposes. For example, Dante O. and Tracy O. use the

SPD’s definition of “medical necessity” in their briefing as the plan’s operative

definition. See Aplt. Br. at 17 (citing App. 2169–70). And Anthem insists there is no

other master plan document, but rather the Evidence of Coverage form “is the

governing plan document.” Aple. Br. at 26–27. Because the parties treat the SPD as

the operative document, pursuant to McCutchen, so do we.4 We therefore proceed to


      4
        Further, many of our sister Circuits have concluded that where there is no
other governing document available in the record, the SPD may be treated as the
governing plan document. See Rhea v. Alan Ritchey, Inc. Welfare Benefit Plan, 858
F.3d 340 (5th Cir. 2017) (noting “when an SPD is a plan’s only plausible written
                                           11
address the merits of appellants’ case under the terms of the plan, as articulated in the

Group Benefit Agreement and the Evidence of Coverage form.

                                           B.

      This court reviews de novo whether an ERISA plan delegates interpretative

authority to the plan administrator. LaAsmar v. Phelps Dodge Corp. Life, 605 F.3d

789, 796 (10th Cir. 2010). A denial of benefits covered by ERISA is reviewed de

novo unless the benefits plan gives the plan administrator discretionary authority to

determine eligibility for benefits or to construe the terms of the plan. Eugene S., 663

F.3d at 1131. Whether a health benefits plan “grants discretion to the plan

administrator in reviewing benefits claims” turns on the “plan language.” See id. at

1132 (entrusting the “medically necessary” determination to the administrator);

Nance v. Sun Life Assur. Co. of Can., 294 F.3d 1263, 1267 (10th Cir. 2002) (“Proof

must be satisfactory to Sun Life”); McGraw v. Prudential Ins. Co. of Am., 137 F.3d


instrument, courts assume that the SPD is the written instrument.”); Prichard v.
Metro. Life Ins. Co., 783 F.3d 1166, 1170 (9th Cir. 2015) (“Amara’s holding assumes
the existence of both an SPD and a written plan instrument. That is Amara addressed
only the circumstance where both a governing plan document and an SPD existed
. . . It did not address the situation . . . [where] the SPD [was] the one and only
formal plan document.”); Bd. of Trustees of the Nat. Elevator Indus. Health Benefit
Plan v. McLaughlin, 590 F. App’x 154, 156 n.1 (3rd Cir. 2014) (unpublished) (citing
U.S. Airways for the proposition the parties treated the SPD as the plan throughout
litigation); Bd. of Trustees of the Nat. Elevator Indus. Health Benefit Plan v.
Montanile, 593 F. App’x 903, 909–11 (11th Cir. 2014) (unpublished) (“[T]he Amara
Court had no occasion to consider whether the terms of a summary plan description
are enforceable where it is the only document that” specifies benefits), rev’d on other
grounds by 644 F. App’x 984 (11th Cir. 2016) (unpublished); see also Feifer v.
Prudential Ins. Co. of Am., 306 F.3d 1202, 1209 (2d Cir. 2002) (holding an SPD
published long in advance of the master plan could serve as the plan “when it was the
only document describing benefits”).
                                           12
1253, 1256 (10th Cir. 1998) (granting administrator authority to decide when

treatment is “needed”); Chambers v. Family Health Plan Corp., 100 F.3d 818, 825

(10th Cir. 1996) (excluding coverage for treatment the administrator deems

“experimental”).

      To reiterate, the Evidence of Coverage form states, in bold, all-capital letters,

“THE BENEFITS OF THIS PLAN ARE PROVIDED ONLY FOR THOSE

SERVICES THAT WE DETERMINE TO BE MEDICALLY NECESSARY.”

App. 182 (Order at 5); see also id. at 191 (Order at 14) (“We will determine if

services are medically necessary and appropriate.”). This plan language is nearly

identical to the language we held as granting discretionary authority in Eugene S. In

that case, this court found several instances of plan language sufficient to grant

discretion, including: “Horizon BCBSNJ determines what is medically necessary and

appropriate.” Eugene S., 663 F.3d at 1132. Given that this court has been

“comparatively liberal in construing language to trigger the more deferential standard

of review under ERISA,” Nance, 294 F.3d at 1268, this language more than

adequately grants discretionary authority to Anthem over benefits claims and triggers

arbitrary and capricious review.5




      5
        Whether the “medically necessary” proviso grants discretion to Anthem does
not get deference itself. Here, the proviso unambiguously grants deference to
Anthem so contra proferentem (interpretation against the draftsman) is
“inapplicable.” See Kimber v. Thiokol Corp., 196 F.3d 1092, 1100–01 (10th Cir.
1999).
                                           13
      Dante O. and Tracy O. argue Anthem’s “medically necessary” proviso does

not convey discretionary authority to Anthem, but merely recognizes “the role

insurers always play in evaluating a claim.” Aplt. Br. at 35. That argument is

inconsistent with Eugene S., where this court held that the language “‘Medically

Necessary and Appropriate’ . . . [as] ‘determined by [the plan administrator’s]

medical director or designee(s)’” was sufficient to grant the administrator discretion

in reviewing benefits claims. Eugene S., 663 F.3d at 1132. Thus, we must give

deference to Anthem’s denial of health benefits.6

                                          C.

      We now turn to our final issue: whether Anthem’s decision to deny S.O. health

benefits was arbitrary and capricious. Because the plan gives Anthem discretion to

deny health benefits if the claimed services are not “medically necessary,” that

decision must be upheld so long as it was not arbitrary and capricious. See Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 114–15 (1989). Under that standard, the

administrator’s “decision will be upheld unless it is not grounded on any reasonable




      6
         Dante O. and Tracy O. argued in their opening brief that California Insurance
Code § 10110.6 bars the reservation of discretionary authority in a policy for the
purposes of affecting judicial review. Aplt. Br. at 37. We do not consider this
argument because Dante O. and Tracy O. withdrew the claim in their Reply Brief.
Aple. Br. at 28–31; Reply Br. at 13 (“Tracy and Dante withdraw their argument that
the California Insurance Code prohibition of discretionary authority clause applies to
this case” (capitalization removed)).
                                          14
basis.” Kimber, 196 F.3d at 1098 (quotations omitted). “This standard is a difficult

one for a claimant to overcome.” Nance, 294 F.3d at 1269.7

      Arbitrary and capricious review of an ERISA benefits decision looks to

“whether: (1) the decision was the result of a reasoned and principled process, (2) is

consistent with any prior interpretations by the plan administrator, (3) is reasonable

in light of any external standards, and (4) is consistent with the purposes of the plan.”

Flinders v. Workforce Stabilization Plan of Phillips Petroleum Co., 491 F.3d 1180,

1193 (10th Cir. 2007) (quotations omitted), abrogated on other grounds by Metro

Life Ins. Co. v. Glenn, 554 U.S. 105 (2008). A plan administrator’s failure to

consistently apply the terms of an ERISA plan is arbitrary and capricious. Owings v.

United of Omaha Life Ins. Co., 873 F.3d 1206, 1213 (10th Cir. 2017) (holding that

shifting interpretations of “disability” was arbitrary and capricious). So is an

interpretation inconsistent with the plan’s unambiguous language. Flinders, 491 F.3d

at 1193.

      The district court concluded Anthem’s denial of S.O.’s residential treatment

was reasonable. App. 192 (Order at 15). “Three physicians—Dr. Cottrell, Dr.

Bussel, and Dr. Jack—reviewed S.O.’s medical records and treatment history . . . and

determined that residential in-patient treatment was not medically necessary.” Id. at

193 (Order at 16). MAXIMUS’ independent review of S.O.’s medical records



      7
        To be clear, only Anthem’s denial of benefits receives Firestone deference.
The independent medical determination by MAXIMUS does not receive deference,
though it adds support to Anthem’s decision.
                                           15
likewise concluded residential treatment at New Haven was “not medically

necessary.” Aplt. Br. at 23–24. Accordingly, Dante O. and Tracy O. have a difficult

task in establishing that Anthem’s decision—supported by four doctors—“is not

grounded on any reasonable basis.” Kimber, 196 F.3d at 1098 (quotations omitted).

        Dante O. and Tracy O. first argue Anthem “ignored the opinions and

observations of S.O.’s treating clinicians who knew her best.” Aplt. Br. at 41. This,

they claim, is arbitrary and capricious, citing Rasenack ex rel. Tribolet v. AIG Life

Ins. Co., 585 F.3d 1311, 1325 (10th Cir. 2009) and Black & Decker Disability Plan v.

Nord, 538 U.S. 822, 823 (2003). These cases are no consolation for Dante O. and

Tracy O.: they specifically state “ERISA does not require plan administrators to

‘accord special deference to the opinions of treating physicians,’ nor does it place ‘a

heightened burden of explanation on administrators when they reject a treating

physician’s opinion.’” Rasenack, 585 F.3d at 1325 (quoting Nord, 538 U.S. at 823).

Administrators act within their considerable discretion so long as they do not

“arbitrarily refuse to credit . . . the opinions of a treating physician,” Nord, 538 U.S.

at 832. For example, in Rasenack, this court held it was arbitrary and capricious for

an administrator to deny a claim on the ground there “is no evidence” the claimant

suffered hemiplegia when in fact the claimant’s treating physician submitted a letter

concluding that the claimant suffered irreversible hemiplegia. Rasenack, 585 F.3d at

1325.

        Anthem did not arbitrarily refuse to credit the judgment of S.O.’s treating

clinicians; they fully acknowledged S.O. needed medical care. App. 194 (Order at

                                            16
17). Dr. Bussel, for instance, recommended a psychiatric intensive structured

outpatient program. Id. at 185 (Order at 8). But, as the district court found, “none of

S.O.’s treatment providers offered an opinion that S.O.’s symptoms and behaviors

represented a deterioration” or that her harmful behavior “could not be managed in an

outpatient setting.” Id. at 193 (Order at 16). In other words, S.O.’s clinicians did not

establish that she met the prerequisites for residential treatment. As Dr. Mayes

explained: “Due to the nature and chronicity of [S.O.’s] symptoms, I do not see a

reasonable expectation that the condition and illness will be stabilized or improved”

by residential treatment. Id. at 187 (Order at 10).

      Dante O. and Tracy O. challenge the district court’s finding that S.O.’s

treatment providers did not opine that S.O. had deteriorated. They quote Maskin’s

letter stating that S.O. “was extremely symptomatic and on a daily basis there was

concern for her safety,” Aplt. Br. at 21, and Dr. Linda Woodall’s letter stating that

S.O.’s “disorder progressed” since 2009 and she “began to have clear psychotic

symptoms” and exhibit “dangerous behavior,” id. at 45. These letters, however, do

not establish that Anthem’s decision was arbitrary and capricious. The district court

acknowledged there had been “some deterioration of S.O.’s symptoms and

behaviors,” but no deterioration beyond the “usual status” of the “consistently

troubling” “behaviors and symptoms” S.O. had exhibited since middle school. App.

193 (Order at 16). Although Dante O. and Tracy O. claimed S.O.’s symptoms and

behaviors were severe enough to require 24-hour, long-term residential care, Dr. Rick

Biesinger’s psychological evaluation of S.O. for her application to New Haven

                                           17
claims that S.O. “denied having any suicidal ideation.” Id. at 181 (Order at 4).

While S.O. initially told Dr. Biesinger that she cut herself once a day, she later

disclosed the last time she did so was “two months ago.” Id. Dr. Biesinger’s

diagnosis of S.O. (generalized anxiety, moderate depressive disorder, bulimia

nervosa) does not suggest a progression in her symptoms so severe that anything

short of residential treatment would “risk serious harm.” Id.8 Anthem’s denial of

coverage cannot be said to lack “any reasonable basis.” Kimber, 196 F.3d at 1098

(quotations omitted). We thus conclude the denial of coverage was not arbitrary and

capricious.

                                          III.

      For these reasons, we affirm the district court’s judgment.




                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




      8
        Dante O. and Tracy O. also argue Anthem misapplied its own “medically
necessary” criteria. Aplt. Br. at 48–50. But the “risk serious harm” language that
Anthem cited in its denial letter, App. 183 (Order at 6), comes directly from the
three-prong criteria identified by the plan to determine whether residential treatment
is medically necessary, see id.
                                           18
No. 17-4135, O., et al. v. Anthem Blue Cross Life, et al.

BRISCOE, Circuit Judge.
       I concur in the result.
