                                                             FILED
                                                  United States Court of Appeals
                                                          Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                               September 25, 2007
                             FO R TH E TENTH CIRCUIT           Elisabeth A. Shumaker
                                                                   Clerk of Court

    C YN TH IA FLA N A G AN ,

                Plaintiff-Appellant,
                                                       No. 06-5197
    v.                                         (D.C. No. 05-CV-36-JHP-SAJ)
                                                       (N.D. Okla.)
    M ETR OPOLITA N LIFE
    INSURANCE, M etlife Disability,

                Defendant-Appellee,

          and

    HOM E DEPOT U.S.A., IN C.,

                Defendant.



                                OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff Cynthia Flanagan sued M etropolitan Life Insurance Company

(M etLife) and Home Depot, U.S.A., Inc. (Home Depot) arising from the denial of

disability benefits in alleged violation of the Employee Retirement Income

Security Act of 1974, (ERISA ), 29 U.S.C. §§ 1101 et seq. The district court

denied her claim and this appeal followed. W e have jurisdiction under 28 U.S.C.

§ 1291 and we affirm.

                                    Background

       M s. Flanagan began working for H ome Depot as a decor consultant in

early 2001. Her job was classified as “light,” Aplt. App. at 342, and required

frequent standing and walking, along with the ability to lift, carry, push and/or

pull twenty pounds occasionally and ten pounds frequently. Although the record

contains conflicting evidence as to whether she hurt her back moving boxes at

home or at work, she claimed the injury rendered her disabled as of July 17, 2003.

Shortly thereafter, M s. Flanagan applied for disability benefits under Home

Depot’s W elfare Benefits Plan (the Plan), which was administered by M etLife,

who was also the insurer. 1




1
       In the district court, the parties filed a stipulated motion to seal the record
because it contained medical information. The court granted the motion in a
minute order dated January 4, 2006. Nevertheless, the court’s “Order and
Opinion,” dated September 5, 2006, which is publicly available, discusses
M s. Flanagan’s medical records. The parties never objected to the court’s order,
nor have they filed a motion to seal the record in this Court. Therefore, we do not
deem the appellate record sealed.

                                         -2-
      The first medical information in the record is a July 21, 2003, letter from

Guy Baldwin, D.O., stating that M s. Flanagan had an appointment in his office

that day, and that her “condition caused her absence [from work] from 07/17/03

to 07/28/03.” Id. at 276. Dr. Baldwin next saw M s. Flanagan on July 28, 2003,

and wrote another letter stating that her “condition caused her absence from

07/28/03 to 08/13/03.” Id. at 309. The office notes from this visit indicate that

he discussed her x-ray and M RI, which showed “mild L-3 L-4 disc degeneration

with bulging, but no compression,” id. at 292, and noted that these “findings

[were] not equaling” her subjective complaints of pain. Id. His diagnosis was

low back pain. M s. Flanagan saw Dr. Baldwin again on August 13, 2003, and he

wrote another letter stating that her “condition caused her absence from 08/13/03

to 08/22/03.” Id. at 311.

      On a referral from Dr. Baldwin, M s. Flanagan saw Armen M arouk, D.O.,

on August 22, 2003. Dr. M arouk wrote a two-sentence letter to Dr. Baldwin in

which he recommended four weeks of physical therapy and then a follow-up visit.

Although there are no office notes from this visit, Dr. M arouk filled out a form

stating that she could not work “until seen again 9-5-03.” Id. at 312.

      M s. Flanagan saw W illiam M ead, a chiropractor, for physical therapy on

August 25, 2003. Dr. M ead stated that he was prescribing “Spinal M anipulative

Treatment, High Voltage Galvanic Nerve Stimulation, & Ultrasound daily for

2 – 4 wks. Treatment to continue beyond 4 wks on a declining frequency with

                                         -3-
improvement.” Id. at 269. He further reported that M s. Flanagan was

“Temporarily Totally Impaired due to Intervertebral Disk Syndrome. Such

impairment may last for 2 – 4 months or longer.” Id. at 270. Shortly thereafter,

he wrote to Dr. M arouk that M s. Flanagan “has a long history of low back

symptoms, most recently aggravated by moving and lifting boxes in her home.”

Id. at 319. He reported that she “tolerated treatment well today and reported

subjective improvement.” Id. “[She] is being treated daily for two weeks . . .

[and] is to be re-evaluated by you in two weeks.” Id.

      On September 5, 2003, Dr. A rmen M arouk’s colleague, John M arouk, D.O.,

signed a leave-of-absence form indicating that M s. Flanagan’s x-rays and M RI

showed a bulging disk and degenerative disk disease. W ith regard to her

prognosis, he w rote that she could not yet return to w ork because the “pain [w as]

too severe – still diagnosing.” Id. at 273. Dr. M ead also signed a statement on

September 5, that in addition to administering the above-described treatment, he

was “continuing to do diagnostic tests with Dr. M arouk.” Id. at 277. 2 He listed

M s. Flanagan’s subjective complaints as low back pain and leg pain, and he stated

that she was still “Temporary Total Impairment.” Id. at 278.

      Based on the information it had received from M s. Flanagan’s doctors, on

September 10, 2003, M etLife approved an initial period of disability benefits



2
       No test results of any type, including x-rays or M RIs, were ever submitted
to M etLife.

                                          -4-
from August 1 to August 25, 2003. 3 At the same time, it requested that she

provide detailed medical information to support her claim.

      Following a month of treatment by Dr. M ead, M s. Flanagan returned for a

follow-up examination with Dr. John M arouk on September 24, 2003.

Dr. M arouk reported his findings in a letter to D r. Baldw in as follow s:

      Cynthia Flanagan was seen in follow-up visit today. As you know
      she has been having pain and pain syndrome throughout her entire
      low back. We did look at her lumbar spine and we were unable to
      identify a source of nerve root impingement or significant disk
      disease. I did have her obtain a bone scan looking for a possible
      stress fracture of the sacrum however the bone stem was completely
      normal. I had a long discussion with Cynthia in regards to her back.
      I have no surgical recommendations for her. She has a pain and pain
      syndrom e and I do not have a good anatomic explanation for. In my
      opinion I have no surgical recommendations for her and I have no
      other treatment options for her. W e did start her on some physical
      therapy in August, which did help some of her symptoms.

      Impression:

             1. Lumbar pain, etiology unknown.
             2. Sacral pain, etiology unknown.

      Recommendations:

             1. I have no treatment recommendations for Cynthia at this
             point in time. She did undergo some physical therapy in
             August and unfortunately this has not helped her symptoms.

Id. at 313 (emphasis added).




3
      The disability plan pays short-term benefits following the fourteenth
consecutive day that a claimant is unable to work due to injury or illness. Aplt.
App. at 125.

                                          -5-
      M etLife wrote again to M s. Flanagan on September 29, 2003, requesting

detailed medical information concerning her alleged disability. Among other

things, it requested office notes, diagnostic test results, a list of medications, an

evaluation of her functional abilities, and a projected return-to-work date. But the

only information submitted by M s. Flanagan were the office notes from her visits

to Dr. Baldwin: (1) on September 29, 2003, which indicated there was “nothing

to do,” id. at 292; (2) on October 1, 2003, to have her blood pressure checked;

and (3) on October 6, 2003, at which time Dr. Baldwin diagnosed her with a

“[l]umbar strain.” Id. at 293.

      On October 10, 2003, a M etLife internal nurse consultant reviewed

M s. Flanagan’s file and documentation and concluded that the “[m]edical

documentation does not support [her] inability to perform [her] essential job

duties.” Id. at 343. Accordingly, on October 15, 2003, M etLife wrote that she

did not qualify for disability benefits beyond August 25, 2003. 4 In addition to

reminding her that she could appeal, M etLife noted that “[t]here were no physical

therapy notes or sensory and motor exams submitted. No physical exam findings

including range of motion, gait and ambulatory status, or results of deep tendon

reflex were submitted. There were also no restrictions or limitations noted on any



4
        M s. Flanagan saw Dr. Baldwin on October 13, 2003, and he wrote another
note that said that her “condition caused her absence from 10/13/03 until [no date
specified].” A plt. App. at 323. Under “Limitations/Restrictions” the note said
“[s]till under our care no return day yet.” Id.

                                           -6-
of the office notes.” Id. at 297. Again, M etLife urged her to submit “[p]hysical

examination findings, test results, etc. to support [her] inability to perform the

duties of [her] job from August 26,2003 to present,” along with “[r]estrictions and

limitations preventing [her] from performing the duties of [her] job . . . .” Id.

      The last medical record in the file is a one-page, unsigned evaluation form

from Dr. Baldwin dated November 12, 2003, which contains a diagnosis of

“severe degenerative joint disease.” Id. at 324. 5   The boxes that are checked

indicate total, permanent disability such that M s. Flanagan could never

bend/twist, squat, crawl, climb a ladder, reach, or drive motorized equipment, and

was permanently prevented from lifting anything weighing between 1 to 10

pounds from the floor to her waist. W ith regard to her hands, the boxes checked

state that although she could do “simple grasping,” id., she was permanently

prevented from using either hand for “pushing/pulling or fine manipulation.” Id.

Similarly, with regard to her feet, the boxes checked indicate a permanent

restriction from using one or both for “repetitive movements such as

pushing/pulling.” Id.

      On further review, M etLife concluded that “the medical evidence that was

available for review did not support [her] inability to remain out of work beyond

August 25, 2003. The restrictions provided by [her] treating physicians, did not



5
      This form contains at least two different sets of handwriting and the line
requesting the “Health Professionals Signature” is blank. Aplt. App. at 324.

                                          -7-
have objective findings that would support such restrictions and limitations.

Therefore, the original determination was appropriate.” Id. at 329.

                      The Plan A nd T he Standard O f Review

      To receive short-term disability benefits under the Plan, among other

things, M s. Flanagan was required to establish that she was unable to perform the

duties of her regular job; to receive long-term disability, she was required to

prove that she was unable to perform not only her regular job, but any “gainful

occupation for which [she was] reasonably qualified.” Id. at 127.      In either

circumstance, M etLife was entitled to “receive certification accompanied by

appropriate medical documentation of a disability from [her] attending doctor[s].”

Id. at 126, 128.

      Because the Plan gave M etLife, the administrator, discretionary authority to

determine eligibility for benefits, the district court correctly applied an arbitrary

and capricious standard of review. Fought v. UN UM Life Ins. Co. of Am., 379

F.3d 997, 1003 (10th Cir. 2004). M oreover, in situations such as this where the

administrator is also the insurer, M etLife

      must demonstrate that its interpretation of the terms of the plan is
      reasonable and that its application of those terms to the claimant is
      supported by substantial evidence. The district court must take a
      hard look at the evidence and arguments presented to the plan
      administrator to ensure that the decision was a reasoned application
      of the terms of the plan to the particular case, untainted by the
      conflict of interest.

Id. at 1006 (internal citation omitted).

                                           -8-
      On appeal, “our review is limited to determining w hether [M etLife’s]

interpretation was reasonable and made in good faith.” Hickman v. GEM Ins. Co.,

299 F.3d 1208, 1213 (10th Cir. 2002). 6

                                     Analysis

      M s. Flanagan argues that the information provided by Drs. Baldwin,

M arouk, and M ead, and in particular the November 12, 2003, form purportedly

filled out by Dr. Baldwin, is objective proof of her disability. Her argument is

that although none of these medical professionals could reconcile her subjective

complaints with the scant evidence, their mere statements are objective evidence

and nothing more is required.

      According to the plain language of the Plan, M etLife was entitled to

“receive certification accompanied by appropriate medical documentation of a

disability from [her] attending doctor[s].” Aplt. App. at 126, 128. Factually,

there is no appropriate clinical evidence to establish a disability. The only testing

referenced is an x-ray and M RI, which allegedly showed mild disk degeneration,



6
       In her opening brief, M s. Flanagan states one issue as whether a de novo or
arbitrary and capricious standard of review applies to the review of M etLife’s
decision. It does not appear from the record that this issue was raised in the
district court, and in any event, it is not developed in her brief. Therefore, we
will not consider it on appeal. See Am. Airlines v. Christensen, 967 F.2d 410, 415
n.8 (10th Cir. 1992) (holding that stating that the court erred without advancing
reasons w hy is insufficient appellate argument); Walker v. M ather (In re Walker),
959 F.2d 894, 896 (10th Cir. 1992) (holding that as a general rule this court will
not consider an issue that was not raised below).


                                          -9-
but no bulging. Neither Dr. Baldwin nor Dr. M arouk could account for her

subjective complaints, and Dr. M arouk confirmed that there was no “root

impingement or significant disk disease.” Id. at 313.

      The November 12, 2003, form stated for the first time that she suffered

from “severe degenerative joint disease,” id. at 324, and noted severe permanent

restrictions. As provided for in the Plan itself, it was not unreasonable for

M etLife ask for something more than a form to support this conclusion. In

Kimber v. Thiokol Corp., 196 F.3d 1092, 1099 (10th Cir. 1999), we held that a

rational plan administrator could reject a doctor’s report when there was no

accompanying clinical data to support the conclusion. The N ovember 12 report

submitted by M s. Flanagan did not include any supporting data for the

conclusions.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     David M . Ebel
                                                     Circuit Judge




                                         -10-
