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

                            FOR THE TENTH CIRCUIT                          May 6, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
TED RALL,

             Plaintiff-Appellant,

v.                                                         No. 13-1213
                                                  (D.C. No. 1:12-CV-00184-LTB)
AETNA LIFE INSURANCE                                         (D. Colo.)
COMPANY,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before HARTZ, McKAY, and BACHARACH, Circuit Judges.


      Ted Rall appeals from the district court’s order affirming Aetna Life Insurance

Company’s denial of his claim for long-term-disability (LTD) benefits under a group

employee benefits plan governed by the Employee Retirement Income Security Act

of 1974 (ERISA), 29 U.S.C. §§ 1001-1461. Mr. Rall asserts that the district court

failed to properly consider Aetna’s inherent conflict of interest and that there was not


*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
substantial evidence to support Aetna’s decision. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

      Mr. Rall was a customer service representative for Teachers Insurance and

Annuity Association of America (TIAA). TIAA provided LTD and

short-term-disability (STD) benefits to its employees through its benefits plan. In

administering the plan, TIAA purchased an insurance policy from Aetna to fund the

plan and delegated to Aetna responsibility for making benefits decisions.

      Mr. Rall has suffered from mental illness. He left work on February 21, 2011,

after decompensating and being in a suicidal state. He applied for STD benefits,

which Aetna approved from February 28 to August 28, 2011. After STD benefits

ended, Aetna transferred the claim to the LTD benefits department. Aetna requested

additional information from Mr. Rall on September 1 and 13 and October 17.

Although he provided some additional medical information, Aetna denied LTD

benefits on October 31, finding that the medical evidence showed “no cognitive,

emotional, or behavioral impairments” precluding Mr. Rall from working. Aplt.

App. at 125.

      Mr. Rall pursued an administrative appeal. Aetna placed the appeal on hold

for a short time to allow Mr. Rall time to provide additional medical information. It

then retained Dr. Elana Mendelssohn, a psychologist, to review the medical records

and to conduct a peer-to-peer review with Mr. Rall’s therapist, Lori L. Frey, a

licensed professional counselor. Dr. Mendelssohn concluded that the medical


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evidence did not show that Mr. Rall had an impairment in or a decline of functioning.

On January 11, 2012, Aetna relied on Dr. Mendolssohn’s conclusions to uphold the

denial of LTD benefits on the ground that there was insufficient medical evidence to

support disability.

      Mr. Rall sought review of that decision in the district court. After both parties

moved for judgment on the administrative record, the court granted Aetna’s motion,

upholding the denial of LTD benefits. The court gave Aetna’s conflict of interest (as

both payor and decisionmaker) minimal weight in reviewing for abuse of discretion,

and it found substantial evidence to support Aetna’s determination that the medical

records were not sufficient to show disability. Mr. Rall appeals.

      Rather than review the district court’s decision, we review Aetna’s decision to

deny benefits to Mr. Rall. See Foster v. PPG Indus., Inc., 693 F.3d 1226, 1231 (10th

Cir. 2012). The parties agree that our review is under an arbitrary-and-capricious

standard because the plan gave Aetna discretionary authority to determine eligibility

for benefits. See id. at 1231-32; see also id. at 1231 (abuse-of-discretion standard

and arbitrary-and-capricious standard are interchangeable in ERISA cases). But the

parties do not agree on how much deference to give Aetna’s decision.

      According to Mr. Rall, the district court gave Aetna too much deference

because it failed to properly consider Aetna’s inherent conflict of interest as both the




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plan’s insurer and decisionmaker.1 See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105,

108 (2008) (conflict of interest arises when same entity pays and determines

eligibility for benefits). Because, as Aetna concedes, it had an inherent conflict of

interest, “we must weigh the conflict as a factor in determining whether there was an

abuse of discretion, according it more or less weight depending on its seriousness,”

Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196, 1202 (10th Cir. 2013)

(internal quotation marks omitted). We will give the conflict more weight “when

circumstances suggest a higher likelihood that it affected the benefits decision” and

less weight “when the conflicted party has taken active steps to reduce potential bias

and to promote accuracy.” Id. (internal quotation marks omitted).

      Mr. Rall contends that when assessing the weight of the conflict of interest, the

district court should have considered Aetna’s disregard of its prior award of STD

benefits and its rationale for awarding STD benefits. He asserts that Aetna “barely

acknowledged” the opinion of Dr. Leonard Schnur, the psychologist hired by Aetna

at the STD-benefits stage to review Mr. Rall’s medical records, even though

Dr. Schnur’s July 16, 2011, report came after the July 6 treatment note of Dr. Elishia

Oliva, Mr. Rall’s psychiatrist, which Aetna relied on “heavily” when denying LTD

benefits. Aplt. Br. at 20. We disagree. Aetna’s approval of STD benefits did not


1
       We note that throughout the argument portion of his brief, Mr. Rall fails to cite
to his appendix to support factual assertions. See Fed. R. App. P. 28(a)(8)(A)
(requiring citation to “parts of the record on which the appellant relies”). Because of
that failure, we could properly refuse to consider much of his argument.


                                          -4-
guarantee approval of LTD benefits. In considering whether to approve LTD

benefits, Aetna properly requested that Mr. Rall provide current medical information

to support his claim. Yet he largely failed to do so. As for Dr. Oliva’s July 6

treatment note, it had not been received by Aetna at the time of the STD benefits

approval. And it was appropriate for Aetna to give it weight because it was the last

treatment note by Dr. Oliva available to Aetna and it did not indicate disability.

Although Aetna did not contact Dr. Oliva for further comment, Mr. Rall had

specifically requested that Aetna not contact her. Also, contrary to Mr. Rall’s

assertion, the record shows that Aetna did consider Dr. Schnur’s review, which

included his finding that he could not substantiate a functional impairment after July

16, 2011.

      Mr. Rall further argues that the district court ignored or minimized procedural

irregularities, which “may be evidence of conflicted decision making.” Aplt. Br. at

20. First, he contends that without seeking the opinion of a mental-health specialist,

Aetna made a medical judgment in its initial denial of LTD benefits by stating that

“‘there are no significant cognitive, emotional or behavioral impairments to

substantiate out of work status.’” Id. at 21 (providing no citation for the quotation).

But Mr. Rall fails to cite authority, and we have found none, requiring a medical

opinion at the initial benefits determination when the claimant, as here, fails to

submit sufficient medical records warranting an examination. Moreover, Aetna did

seek Dr. Mendelssohn’s opinion before denying Mr. Rall’s LTD-benefits appeal.


                                          -5-
      Second, Mr. Rall contends that Aetna ignored the September 1, 2011, opinion

of its senior LTD benefits manager, Erica Vargo, that he cannot perform his job. He

refers to a claim note by Ms. Vargo made promptly upon the transfer of his STD file

for LTD benefits consideration. This note summarized prior information provided by

Ms. Frey. But it was not an approval of benefits, and Ms. Vargo requested that

Mr. Rall provide more information to support his request for LTD benefits.

      In light of Mr. Rall’s failure to submit requested information and Aetna’s

referral for an independent expert opinion, we cannot conclude that there is a

significant likelihood that Aetna’s inherent conflict of interest affected its decision.

See Foster, 693 F.3d at 1232 (“The circumstances do not suggest a higher likelihood

that the inherent conflict affected the benefits decision.” (internal quotation marks

omitted)); see also Hancock v. Metro. Life Ins. Co., 590 F.3d 1141, 1155 (10th Cir.

2009) (“[A] conflict of interest affects the outcome at the margin, when we waver

between affirmance and reversal.”) We, like the district court, therefore give the

conflict of interest limited weight in determining whether Aetna abused its discretion.

      Mr. Rall next argues that Aetna’s denial of LTD benefits was not supported by

substantial evidence. “Substantial evidence is such evidence that a reasonable mind

might accept as adequate to support the conclusion reached by the decision maker.”

Rekstad v. U.S. Bancorp, 451 F.3d 1114, 1119-20 (10th Cir. 2006). “We will not

substitute our own judgment for that of the plan administrator unless the




                                           -6-
administrator’s actions are without any reasonable basis.” Geddes v. United Staffing

Alliance Emp. Med. Plan, 469 F.3d 919, 929 (10th Cir. 2006).

      Mr. Rall asserts that although his treating providers, Dr. Schnur, and Aetna’s

employees concluded that he had serious psychiatric issues and could not return to

his own occupation, Aetna ignored these opinions and instead relied exclusively, and

without explanation, on the opinion of Dr. Mendelssohn. Also, Mr. Rall faults Aetna

and Dr. Mendelssohn for failing to request to examine him. And he complains that

Dr. Mendelssohn never challenged the diagnoses made by Ms. Frey. Again, we are

not persuaded.

      Contrary to Mr. Rall’s assertion, Aetna did not consider only

Dr. Mendelssohn’s opinion. Mr. Rall admitted as much when he argued (as noted

above) that Aetna relied “heavily” on Dr. Oliva’s treatment note when denying LTD

benefits.

      Nor was it unreasonable for Aetna to rely on Dr. Mendelssohn’s assessment of

the medical evidence. See Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 577

(7th Cir. 2006). A further examination of Mr. Rall was not required by Tenth Circuit

law or by the plan. See Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1015

(10th Cir. 2004) (per curiam), abrogated in part on other grounds by Glenn, 554 U.S.

at 116, as recognized in Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d 1187, 1192

(10th Cir. 2009). And we cannot say that Aetna failed to gather or examine relevant

evidence. See Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th Cir.


                                        -7-
2002) (“We give less deference if a plan administrator fails to gather or examine

relevant evidence.”). Rather, it was Mr. Rall who failed to provide sufficient medical

information to Aetna after being asked to do so on several occasions. His apparent

reliance on his STD record failed to meet his burden under the plan of proving LTD.

       Also, Dr. Mendelssohn in effect did challenge Ms. Frey’s diagnoses.

Dr. Mendelssohn concluded, after reviewing the records and conducting a

peer-to-peer review with Ms. Frey, that Mr. Rall did not have an impairment

affecting his ability to function.

       Finally, Mr. Rall faults the district court and Aetna for suggesting that “a

person with longstanding mental health issues cannot recover LTD benefits if [he]

decline[s] over time and eventually become[s] disabled.” Aplt. Br. at 29. But that

was not the basis of Aetna’s decision or even Dr. Mendelssohn’s conclusions. And

Dr. Mendelssohn’s comment regarding no evidence of decline appears to be merely a

paraphrase of her observation that Mr. Rall’s “clinical presentation is reflective of

longstanding personality characteristics.” Supp. App. at 315.2

       Considering the evidence in the record as a whole, see Caldwell, 287 F.3d at

1282, we conclude that Aetna’s decision to deny LTD benefits to Mr. Rall was not


2
       In his reply brief Mr. Rall asserts for the first time that Aetna improperly
shortened the time provided by the plan to file his LTD benefits claim and supporting
medical documentation. We generally decline to consider an issue not presented to
the district court, see Ray v. Unum Life Ins. Co. of Am., 314 F.3d 482, 487 (10th Cir.
2002), or raised for the first time in an appellate reply brief, see Stump v. Gates,
211 F.3d 527, 533 (10th Cir. 2000).

                                          -8-
arbitrary or capricious. Instead, Aetna based its decision on a reasonable basis and

therefore it must be upheld. See Hancock, 590 F.3d at 1155.

      The judgment of the district court is affirmed.


                                               Entered for the Court


                                               Harris L Hartz
                                               Circuit Judge




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