                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 22, 2012
                                                               Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT
                                                                   Clerk of Court


    DANA PETERSON, M.D.,

                Plaintiff–Appellant,
                                                         No. 11-2179
    v.                                        (D.C. No. 1:10-CV-01106-BB-DJS)
                                                           (D. N.M.)
    SUN LIFE ASSURANCE COMPANY
    OF CANADA,

                Defendant–Appellee.


                            ORDER AND JUDGMENT *


Before LUCERO, McKAY, and GORSUCH, Circuit Judges.


         Dr. Dana Peterson appeals from the district court’s grant of summary

judgment dismissing his claims under the Employee Retirement Income Security

Act (“ERISA”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                          I

         Peterson began working for Southwest Medical Associates, Inc.



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
(“Southwest Medical”) as a family practice physician in 1992. In September

2008, the New Mexico Medical Board issued an order requiring Peterson to have

a member of his medical practice chaperone appointments with female patients

and patients under the age of eighteen. As a result of this order and related

events, Southwest Medical terminated Peterson on November 24, 2008.

      On December 2, 2008, Peterson applied for partial and total disability

benefits under a Sun Life Assurance Company of Canada (“Sun Life”) group

policy for long-term disability insurance issued to Southwest Medical. Peterson

claimed he was disabled due to ankylosing spondylitis, 1 severe stress, and

depression. He alleged that these conditions had worsened as a result of his legal

issues. In March 2009, Sun Life denied Peterson’s claims for disability benefits.

In October 2009, the insurer denied Peterson’s appeal of that decision.

      Peterson then filed suit against Sun Life under 29 U.S.C. § 1132(a)(1)(B),

the civil enforcement provision of ERISA. The district court granted summary

judgment in favor of Sun Life, concluding that Peterson failed to establish that

Sun Life acted in an arbitrary and capricious manner. Peterson now appeals.

                                         II

      In ERISA cases, “we review [the] plan administrator’s decision to deny



1
      Ankylosing spondylitis is “[a] systemic rheumatic disorder characterized by
inflammation of the axial skeleton and large peripheral joints.” The Merck
Manual 445 (17th ed. 1999) (italics omitted).

                                        -2-
benefits to a claimant, as opposed to reviewing the district court’s ruling.”

Holcomb v. UNUM Life Ins. Co. of Am., 578 F.3d 1187, 1192 (10th Cir. 2009).

Because the plan at issue here “gives discretion to Sun Life in finding the facts

relating to disability, we must uphold Sun Life’s decisions as fact finder unless

they were arbitrary or capricious.” Nance v. Sun Life Assurance Co. of Can.,

294 F.3d 1263, 1269 (10th Cir. 2002). 2 In conducting our analysis, we “may only

consider the evidence and arguments that appear in the administrative record.”

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

1180, 1190 (10th Cir. 2007), abrogated on other grounds by Holcomb, 578 F.3d at

1192-93.

      Peterson argues that Sun Life’s denial of disability benefits should be

reversed because: (1) the medical and other evidence in the record shows that he




2
      As we explained in Nance:

      When reviewing [a denial of disability benefits in an ERISA case]
      under the arbitrary and capricious standard, the Administrator’s
      decision need not be the only logical one nor even the best one. It
      need only be sufficiently supported by facts within [the
      Administrator’s] knowledge to counter a claim that it was arbitrary
      or capricious. The decision will be upheld unless it is not grounded
      on any reasonable basis. The reviewing court need only assure that
      the administrator’s decision falls somewhere on a continuum of
      reasonableness-even if on the low end.

Id. (quotation omitted).

                                         -3-
was disabled prior to his termination by Sun Life on November 24, 2008; 3 and (2)

Sun Life’s denial was the result of an arbitrary and capricious review process.

      As a starting point, we agree with the district court that “[t]here is no

evidence that [Sun Life] acted out of a conflict of interest when denying benefits

to Plaintiff; rather, the record shows that there was a sufficient basis to find that

Plaintiff was not disabled as defined by the Policy.” Although the record

indicates that Peterson suffered from ankylosing spondylitis, a doctor retained by

Sun Life to review Peterson’s medical record concluded that Peterson “had the

physical capacity to continue to perform his profession until the date of his

termination.” Further, Peterson never claimed that he was unable to work during

his employment with Southwest Medical. Even Peterson’s treating physician

reported that Peterson was capable of “light capacity” work. Sun Life’s

conclusion that Peterson’s ankylosing spondylitis was not disabling is reasonable

in light of this evidence.

      The same is true as to Peterson’s claimed depression. A reviewing

physician stated that Peterson’s degree of mental illness was “not consistent with

impairment.” We acknowledge that the district court failed to address two

relevant records. First, on November 20, 2008, Southwest Medical received a


3
       As the district court correctly noted, “Plaintiff’s employment, and thus his
insurance coverage from Defendant, ceased on November 24, 2008. In order to
qualify for either partial or total disability benefits, his disabling condition would
[therefore] have had to exist before November 24, 2008.”

                                          -4-
letter from Peterson’s physician recommending he take two weeks’ medical

leave. 4 Second, on December 8, 2008, Peterson’s physician completed a

statement in which she: (1) diagnosed Peterson as suffering from acute stress and

anxiety/depression; and (2) assessed a Global Assessment of Functioning

(“GAF”) score of 30. 5 This score indicates that Peterson’s “[b]ehavior [was]

considerably influenced by delusions or hallucinations OR serious impairment in

communication or judgment (e.g., sometimes incoherent, acts grossly

inappropriately, suicidal preoccupation) OR inability to function in almost all

areas (e.g., stays in bed all day; no job, home, or friends).” DSM-IV at 32 (bold

print omitted). These omissions do not render Sun Life’s decision arbitrary or

capricious, however, because Sun Life addressed the GAF score and because the

insurer had a reasonable basis for disregarding both of the documents submitted

by Peterson’s treating physician.

      Peterson’s treating physician referred Peterson for professional mental

health counseling. His first counseling session occurred the same day Southwest

Medical terminated him. The mental health doctor diagnosed Peterson as

4
      Although the letter was dated January 18, 2009, we will assume, without
deciding that this is a clerical error and that the letter was actually sent on or
before November 20, 2008. The letter has a “Received” stamp indicating that
Southwest Medical received it on November 20, 2008.
5
      A GAF score measures an individual’s overall functioning level in terms of
“psychological, social, and occupational functioning on a hypothetical continuum
of mental health-illness.” Am. Psychiatric Ass’n, Diagnostic and Statistical
Manual of Mental Disorders (“DSM-IV”) 32 (4th ed. 1994).

                                         -5-
suffering from an adjustment disorder with mixed anxiety and depressed mood,

and assessed a GAF score of 65. This score indicates “[s]ome mild symptoms

(e.g., depressed mood and mild insomnia) OR some difficulty in social,

occupational, or school functioning (e.g., occasional truancy . . .), but generally

functioning pretty well, has some meaningful interpersonal relationships.”

DSM-IV at 32 (bold print omitted). In both its initial and appeal letters, Sun Life

relied on this GAF score as more accurate. Because Peterson’s treating physician

referred him to the mental health doctor for treatment, favoring the latter’s score

was reasonable.

      As to the additional mental health evaluations that were prepared after

Peterson was terminated, we conclude that Sun Life set forth reasonable and

convincing grounds in its appeal letter to support its finding that Peterson’s

mental health problems did not prevent him from performing his job as a family

practice physician at the time he was terminated by Southwest Medical. 6 As Sun

Life explained, Peterson’s treating mental health doctor assessed a GAF score of


6
      The district court held that these evaluations show only that Peterson was
unable to work after he was terminated. However, in its letter denying Peterson’s
appeal, Sun Life did not reject the opinions of these psychologists based on this
rationale. We are therefore precluded from relying on the district court’s stated
reason, because this court has held that “when reviewing a plan administrator’s
decision to deny benefits, we consider only the rationale asserted by the plan
administrator in the administrative record and determine whether the decision,
based on the asserted rationale, was arbitrary and capricious.” Flinders, 491 F.3d
at 1190.


                                         -6-
65 on the day Peterson was terminated. This score indicates mild symptoms

rather than impairment.

      Finally, Peterson argues that Sun Life acted in an arbitrary and capricious

manner because it ignored the fact that other insurance companies determined that

Peterson was disabled during the relevant time period. But Peterson has not cited

any legal authority to support his argument that Sun Life was required to address

these entirely separate benefit awards in its denial letters. Nor has Peterson

established that the definition of disability in these other policies was identical to

that in Sun Life’s policy.

                                          III

      We AFFIRM the district court’s grant of summary judgment in favor of

Sun Life.


                                                      Entered for the Court


                                                      Carlos F. Lucero
                                                      Circuit Judge




                                          -7-
