           Case: 17-11012   Date Filed: 08/03/2018   Page: 1 of 8


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11012
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:16-cv-00079-JSM-TGW



ANTONIO LOPEZ,

                                                          Plaintiff - Appellant,

                                  versus

STANDARD INSURANCE COMPANY,

                                                        Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (August 3, 2018)

Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Antonio Lopez appeals the district court’s decision granting Standard

Insurance Company’s motion for summary judgment and denying his motion for

summary judgment in his case brought pursuant to the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001–1461. He argues the

district court committed plain error by considering evidence generated after the

administrator of his employee benefit plan denied him disability benefits. After

careful review, we affirm.

                                         I.

      In May 2003, Lopez began working as a sheetrock applicator for Palm

Harbor Homes, Inc. In late September 2005, Lopez stopped working there, saying

he was suffering from groin pain and cramping. He returned to work on November

22, but was terminated the next day.

      Palm Harbor Homes offered disability insurance to its employees through

Standard Insurance. Under Lopez’s policy with Standard, Lopez was eligible for

benefits if he was disabled from performing his “Own Occupation”—a sheetrock

applicator—for up to 24 months. After 24 months, Lopez would remain eligible

for benefits only if his disability prevented him from working in “Any

Occupation.” The policy defined “Any Occupation” as “any occupation or

employment which you are able to perform . . . and in which you can be expected




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to earn at least 60% of your Indexed Predisability Earnings within twelve months

following your return to work.”


      On October 13, 2006, almost a year after he left Palm Harbor Homes, Lopez

filed a long term disability claim with Standard Insurance. He said he was injured

on June 1, 2005 at Palm Harbor Homes and suffered epididymitis and dislocated

spinal discs from heavy lifting.

      During a series of appeals spanning almost ten years, Standard obtained a

number of reports reviewing Lopez’s medical records. These reviews found that

Lopez would face some restrictions from work but would be capable of performing

sedentary jobs. In January 2015, Standard also obtained a report from a vocational

consultant. Based on Lopez’s work history and the medical reports suggesting he

could perform sedentary work, the vocational consultant determined Lopez could

be employed as a customer service representative or an information clerk. Using

2013 wage data from the Bureau of Labor Statistics, the report estimated that those

positions would have paid $14.13 and $12.60 per hour, respectively. This was

above Lopez’s previous wage of $9.39 per hour.

      On February 9, 2015, Standard finally approved Lopez’s claim for benefits

through the “Own Occupation” period, but denied benefits under the “Any

Occupation” standard after determining Lopez was still able to perform sedentary

work. On May 14, 2015, Lopez appealed Standard’s decision. As part of its
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review of Lopez’s appeal, Standard obtained another medical review of Lopez’s

file. Other than two discrete periods in 2013 and 2014, the review found that

Lopez would have been able to perform sedentary work from December 2007 to

the present. On June 24, 2015, Standard advised Lopez that it was affirming its

decision.

      In January 2016, Lopez brought suit against Standard seeking long-term

disability benefits and attorney’s fees and costs under ERISA. Standard moved for

summary judgment, arguing that Lopez had presented no objective medical

evidence saying he was incapable of performing sedentary work, and Standard’s

decision was therefore reasonable.

      Lopez filed his own motion for summary judgment. Lopez argued, among

other things, that Standard’s vocational consultant erred in using income data from

2013 rather than 2007 when analyzing whether Lopez would be able “to earn at

least 60% of [his] indexed predisability earnings within 12 months following [his]

return to work.” In response, Standard said its vocational expert used the most

recent wage data available, which was only inaccurate because Lopez’s claim was

unusually old. In any event, Standard attached the relevant 2007 data to show that

the analysis reached the same result using either the 2007 or 2013 data. Lopez

then asked the court to strike the 2007 data included in Standard’s reply brief,

which was not part of the administrative record.


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      A magistrate judge prepared a Report and Recommendation (“R&R”)

recommending that Standard’s motion for summary judgment be granted. Having

reviewed the administrative record, the magistrate judge found that Lopez was not

disabled from performing any occupation as of December 2007. The magistrate

judge noted that three independent medical consultants said they believed Lopez

could perform sedentary work. As to Lopez’s challenge to the vocational

consultant’s report, the magistrate judge found that Standard was not required to

obtain vocational expert evidence in the first place, and that in any event, any error

in the type of evidence used had been corrected and was harmless. Neither Lopez

nor Standard filed any objections to the R&R. The district court adopted the R&R,

granted Standard’s motion for summary judgment and denied Lopez’s motion for

summary judgment. This appeal followed.

                                          II.

      An ERISA plan participant may bring a civil action “to recover benefits due

to him under the terms of his plan, to enforce his rights under the terms of the plan,

or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C.

§ 1132 (a)(1)(B). “We review de novo a district court’s ruling affirming or

reversing a plan administrator’s ERISA benefits decision, applying the same legal

standards that governed the district court’s decision.” Blankenship v. Metro. Life

Ins. Co., 644 F.3d 1350, 1354 (11th Cir. 2011) (per curiam).


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      This Court follows a multi-step framework to review ERISA plan benefits

decisions. The first step of this inquiry is to “[a]pply the de novo standard to

determine whether the claim administrator’s benefits-denial decision is ‘wrong’

(i.e., the court disagrees with the administrator’s decision).” Id. at 1355 (quotation

omitted). In doing this review, we consider only “the material available to the

administrator at the time it made its decision.” Id. at 1354. This rule “prevents

post-hoc relitigation of the substantive claim and encourages a full development of

the record before the administrator.” Bloom v. Hartford Life & Accident Ins. Co.,

917 F. Supp. 2d 1269, 1277 (S.D. Fla. 2013). If we agree with the administrator’s

decision, then that is the end of the inquiry. Blankenship, 644 F.3d at 1355. If not,

and if the plan administrator had discretion in reviewing claims, we review the

decision “under the more deferential arbitrary and capricious standard,” taking into

account any possible conflict of interest the administrator may have. Id.

      However, both parties agree our review is more limited in this case because

Lopez failed to object to the magistrate judge’s R&R even though he was given

notice and an opportunity to do so. Under Eleventh Circuit rules, when a party

fails to object to a magistrate judge’s R&R, we review only “for plain error, if

necessary in the interests of justice.” Evans v. Ga. Reg’l Hosp., 850 F.3d 1248,

1257 (11th Cir. 2017).




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                                           III.

      Lopez raises one issue on appeal: that the district court “erred by considering

evidence generated after the administrator of an employee benefit plan made its

final decision to deny disability benefits.” He says this was plain error, warranting

reversal.

      It is true that “[r]eview of the plan administrator’s denial of benefits is

limited to consideration of the material available to the administrator at the time it

made its decision.” Blankenship, 644 F.3d at 1354. And that is what the

magistrate judge did here, performing a thorough analysis of the medical evidence

that was before Standard and determining that Standard’s decision denying

benefits under the Any Occupation standard was not wrong. This decision was

supported by three medical consultants who opined that Lopez could perform

sedentary work as of December 2007. Standard’s vocational consultant also

determined that particular jobs met Lopez’s restrictions and paid sufficient wages

that Lopez could be expected to earn at least 60% of his predisability earnings in

such positions, as required under his policy. While Lopez argued that the

vocational consultant’s report would have been more accurate if she used data

from 2007 rather than 2013, this does not mean that it was error for Standard to

rely on its vocational consultant’s analysis. And when Lopez raised this issue in

the district court, it was not plain error for the court to note that the analysis turned


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out the same no matter which data was used. This was not an example of an

insurer initiating a post-hoc relitigation of Lopez’s claim based on new evidence.

See Bloom, 917 F. Supp. 2d at 1277. Standard’s position has always been that

Lopez did not meet his burden of showing that he was disabled from performing

any occupation because he could perform sedentary work. The district court

agreed. Plain error review is a difficult standard to meet, and we cannot say Lopez

has done so here. We therefore affirm the district court’s grant of Standard’s

motion for summary judgment.

      AFFIRMED.




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