

                      [NOT FOR PUBLICATION]
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 95-2307

                       BETTY RUTH SHAPIRO,

                      Plaintiff - Appellant,

                                v.

            RELIANCE STANDARD LIFE INSURANCE COMPANY,

                      Defendant - Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

       [Hon. Francis J. Boyle, Senior U.S. District Judge]                                                                   

                                           

                              Before

                       Cyr, Circuit Judge,                                                   

                  Aldrich, Senior Circuit Judge,                                                         

                  and Gertner,* District Judge.                                                        

                                           

     Thomas F. Ginnerty for appellant.                                 
     Robert M. Duffy, with whom Sloan, Duffy, Sweeney &amp; Gates was                                                                       
on brief for appellee.

                                           

                          August 1, 1996

                                           

                                                  

*  Of the District of Massachusetts, sitting by designation.

          GERTNER, District  Judge.  Plaintiff Betty Ruth Shapiro                    GERTNER, District  Judge.                                            

(Shapiro)  brought  this  action under  the  Employee  Retirement

Income  Security Act of 1974  (ERISA), 29 U.S.C.   1132(a)(1)(B),

claiming  that she was  wrongfully denied benefits  under a long-

term disability  insurance policy  provided by  her employer  and

issued  by the defendant Reliance Standard Life Insurance Company

(Reliance).  After  a non-jury trial, the district  court entered

judgment in  favor of defendant.   On appeal,  plaintiff contends

that the  district court's findings were clearly  erroneous.  She

also contends  that she was  denied due  process of law  when the

district  court  issued  its decision  without  offering  her the

opportunity  to present  additional evidence  or  make a  closing

argument.  We affirm.         FACTS                                        FACTS                                             

          The  facts  as  found by  the  district  court  were as

follows: On October 13, 1991, plaintiff was involved in a serious

motor  vehicle  accident.   She  was  treated  at the  scene  and

returned  home.   Three  days  later,  however,  she went  to  an

emergency room complaining of neck,  shoulder and arm pains.  She

began seeing an  orthopaedic surgeon, Dr. Kenneth  Morrissey, and

remained  in his  care  until May  12,  1992.   In  May of  1992,

plaintiff   applied   for   reemployment   with   her   employer,

Fleet/Norstar Financial Group, Inc. (Fleet),1 after Dr. Morrissey

advised  her to  "give it a  try."   She was not  hired, however,

because there were no positions available.  In  April  of   1992,

                                                  

1  Although it is not clear from the record, plaintiff apparently
ceased working sometime after her accident.

                               -2-

Shapiro  filed  for  disability  benefits  with  Reliance,  which

provided  group   long-term  disability   insurance  to   Fleet's

employees.   In  response,  Reliance sent  letters  to  three  of

Shapiro's treating  physicians in  order to  evaluate her  claim.

The  doctors did  not respond until  July of  1992.  Two  of them

stated  that  they  were  treating  plaintiff  for  non-disabling

maladies unrelated  to  her disability  claim.   The  third,  Dr.

Morrissey, found  the plaintiff to  be "totally disabled"  for an

"indefinite  period,"2  but  that conclusion  was  belied  by his

office records.  The records indicated the Dr. Morrissey believed

the  plaintiff to  be only  partially disabled,  and that  he had

advised  plaintiff  on  May  12,  1992,  the  last  date  of  his

treatment,  that  she  could  try  to return  to  her  job  as  a

securities input clerk. 

          In  August  of 1992,  defendant  retroactively approved

plaintiff's application  for benefits  for the  period April  10,

1992  through  July 10,  1992.    Defendant then  requested  that

plaintiff provide additional information substantiating her claim

for  benefits  beyond  July  10,  1992.    It  sent  plaintiff  a

"Supplementary Report  for Continued Disability  Benefits" and  a

"Physical Capacities  Evaluation Form"  to be  filled out by  her

treating  physician.  In  November, 1992, plaintiff  returned the

Supplementary Report,  but the  portion to  be  completed by  her

physician was left blank.  Instead,  plaintiff submitted a record

                                                  

2   Dr. Morrissey had  reported this conclusion on  an "Attending
Physician's Statement of Disability" dated April 7, 1992.

                               -3-

from a Dr. Tarpey, indicating  that he was treating plaintiff for

asthma and  emphysema.   Plaintiff never  submitted the  Physical

Capacities Evaluation Form.

          Defendant  next sent  letters  directly to  plaintiff's

physicians seeking  information as to whether she continued to be

disabled.  Defendant received no  responses to these letters.  In

February of 1993,  plaintiff advised defendant by  telephone that

she was seeing a chiropractor, Dr. Andrew Lombardi.   In March of

1993, defendant sent a letter to Dr. Lombardi seeking information

about his  treatment and  plaintiff's disability.   Dr.  Lombardi

wrote  back  in   April  of  1993  providing   information  about

plaintiff's condition, but did not indicate whether plaintiff was

disabled,  or whether she  had been continuously  disabled during

the period  between May of  1992, when she ceased  treatment with

Dr.  Morrissey,  and April  of 1993.3   Moreover,  Dr. Lombardi's

letter   stated   that   plaintiff  had   "denie[d]   any   prior

accidents/incidents  that   could  have   produced  the   current

symptoms.   In  fact, as  plaintiff  admitted at  trial, she  had

earlier taken a nine month disability leave for an unrelated neck

and back injury in 1989.

                                                  

3  This  was significant because, under the  terms of defendant's
policy,  plaintiff's  benefits  would terminate  as  soon  as she
ceased to  be totally disabled.  Since  she was no longer working
for Fleet in 1993,  she needed to show that  she was continuously
disabled from  the time  when she  was so  employed  in order  to
continue to receive benefits.

                               -4-

          On April 30, 1993,  defendant denied plaintiff's  claim

for additional benefits.   Plaintiff appealed through defendant's

internal appeal process, and her claim was again denied.

                               -5-

                            DISCUSSION                                      DISCUSSION                                                

I.  The District Court's Findings          I.  The District Court's Findings                                           

          Under the  terms of  defendant's policy,  plaintiff was

eligible for disability benefits only  if she met four  criteria:

(1) that she  was totally disabled as  a result of a  sickness or

injury covered by the policy, (2) that she was under the  regular

care   of  a  physician,  (3)  that  she  completed  a  so-called

"Elimination  Period," and  (4) that  she  submitted satisfactory

proof of her total  disability.  Engaging in a de  novo review of                                                                 

plaintiff's claim,  see Firestone Tire  and Rubber Co.  v. Bruch,                                                                          

489 U.S. 101, 115 (1989), the district court found that plaintiff

did  not   satisfy  the   first,  second   or  fourth  of   these

requirements, and therefore was ineligible for benefits.  We will

vacate  these  findings  only  if  they  are  clearly  erroneous.

Cumpiano v. Banco  Santander Puerto Rico, 902 F.2d  148, 152 (1st                                                  

Cir. 1990).  None of them is.

          First,  the district  court  found  that plaintiff  had

failed to submit  satisfactory proof of  her total disability  to

defendant.  This finding is  not clearly erroneous.  Although Dr.

Morrissey  did aver  that, as  of  April 7,  1992, plaintiff  was

totally disabled, one month later, on May 12, 1992, Dr. Morrissey

advised plaintiff that she could try to return to  work.  Indeed,

plaintiff  did attempt  to return to  work at that  time, and was

only  refused  because  of the  lack  of  an available  position.

Defendant, aware  that Dr.  Morrissey had  advised plaintiff  she

could try  to return to  work, reasonably questioned  whether she

                               -6-

remained  totally disabled, and  engaged in numerous  attempts to

obtain  additional proof  to  support her  claim.   Despite these

attempts,   plaintiff  never   produced  any   evidence  of   her

disability.  The district court's  finding to that effect was not

clearly erroneous.

          The  district court also  found that plaintiff  was not

under the regular care of a physician.  No evidence was presented

that plaintiff  was regularly  seeing any  medical provider  from

May 12, 1992, when she ceased treatment with Dr. Morrissey, until

February 22, 1993, when she  started treatment with Dr. Lombardi.

There was  also evidence that  plaintiff had ceased  all physical

therapy during this  period.  The  district court's finding  that

plaintiff  was not  under the  treatment of  a physician  was not

clearly in error.  

          Finally, the  district court  found that plaintiff  was

not,  in fact,  totally  disabled  during  the  relevant  period.

Although  Dr. Lombardi  testified  at   trial  that  he  believed

plaintiff  to be  totally disabled, and  that her  disability had

been in place during the  relevant period, the district court did

not credit this  testimony as it was inconsistent  with the other

evidence,  including Dr. Morrissey's advice  on May 12, 1992 that

if plaintiff wanted to return to work she should "give it a try."

The district court also  found that Dr. Lombardi's testimony  was

based on false statements provided to him by plaintiff, including

a false statement that she had never been in any  other accidents

which  could  have  caused  her  current  symptoms.    (In  fact,

                               -7-

plaintiff  had  missed  work  for   nine  months  in  1989  after

complaining  of neck and  back problems.)   Dr. Lombardi likewise

ignored the fact that plaintiff had reapplied for work just after

her initial application  for disability benefits had  been filed.

In light  of the  conflicting evidence,  the  district court  was

entitled to reach the conclusion that it did.

II.  Due Process Claim          II.  Due Process Claim                                

          The trial was held on  December 19, 1994.  The district

court  heard three live witnesses:  the plaintiff, one of her co-

workers, and  an employee of the defendant.   At the close of the

day,   the  district  court   directed  the  parties   to  depose

plaintiff's two remaining witnesses, Drs. Morrissey and Lombardi,

and to  file edited transcripts with the court.   This was done a

few weeks  later.  Approximately  one year later, on  November 2,

1995, the district court issued its decision.

          Plaintiff now  contends that the district  court denied

her  due  process  of  law   because  it  failed  to  provide  an

opportunity  for closing  argument,  or  for  the  submission  of

additional  evidence, prior to  issuing its decision.   Plaintiff

states that  if given the  opportunity, she would  have presented

evidence that an  Administrative Law Judge of the Social Security

Administration had found  her to be totally disabled  in April of

1995.   Putting aside the  question of whether this  decision was

relevant  or  otherwise  admissible,  plaintiff  waived  her  due

process  claim  by  failing  to  raise it  to  the  court  below.

Poliquin v. Garden  Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993).                                       

                               -8-

Plaintiff never requested the  opportunity to present  additional

evidence  or to  make a  closing  argument in  the eleven  months

between the trial date and  the issuance of the court's decision.

Moreover,  plaintiff never moved  to alter or  amend the judgment

under Fed. R. Civ. P. 59.  

                            CONCLUSION                                      CONCLUSION                                                

          For the foregoing reasons, the judgment of the district

court is affirmed.  Costs to appellees.                                                

                               -9-
