                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 21, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 MARY McCLENAHAN,

          Plaintiff - Appellant,
 v.
                                                        No. 10-1101
 METROPOLITAN LIFE INSURANCE
                                             (D.C. No. 08-CV-00254-REB-KMT)
 COMPANY, a New York insurance
                                                          (D. Colo.)
 company; and KROGER CO.
 HEALTH AND WELFARE BENEFIT
 PLAN, an ERISA welfare benefit plan,

          Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before KELLY, EBEL, and GORSUCH, Circuit Judges.


      This case requires us to answer two questions: First, whether a Colorado

statute operates retroactively, where it affects the standard of review courts use to

interpret plans governed by the Employee Retirement Income Security Act

(ERISA). Second, whether the insurer in this case abused its discretion in

denying a claimant disability benefits under the parties’ governing plan. To both

questions, the district court answered no and we agree.


      *
         This order and judgment is not binding precedent except under the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.
                                         I

      As an employee of the Kroger Company, Mary McClenahan was entitled to

benefits under the company’s health and welfare benefits plan. As part of this

ERISA plan, Metropolitan Life Insurance Company provided long-term disability

insurance to Kroger employees. Due to a neuromusculoskeletal condition,

radiculopathy, Ms. McClenahan eventually stopped working for Kroger, and

MetLife provided her benefits for a twenty-four month period that expired

March 13, 2006.

      After that period, MetLife terminated payments to Ms. McClenahan.

Pursuant to a limitation clause in the plan, MetLife determined that Ms.

McClenahan couldn’t receive benefits past a twenty-four month period unless she

demonstrated continuing “objective evidence of . . . radiculopathies” —

radiculopathies defined in the plan as a “[d]isease of the peripheral nerve roots

supported by objective clinical findings of nerve pathology.” Aplt. App. Vol. III

at 385. In making its decision to deny Ms. McClenahan continued benefits past

the initial twenty-four month period, MetLife relied in part on Dr. R. Kevin

Smith’s independent review of her medical file and his conclusion that evidence

of radiculopathy was lacking.

      Ms. McClenahan challenged this decision through MetLife’s internal appeal

procedures, disputing MetLife’s factual assessment that she could no longer show

objective evidence of radiculopathies. Ms. McClenahan forwarded to MetLife an

                                        -2-
electromyography test conducted on March 9, 2006 by Dr. John Stephens, who

reported that “there is some EMG evidence of what appears to be chronic

denervation likely in a left L5 pattern.” Aplt. App. Vol. III at 564. For its part,

during the claims review process MetLife consulted other in-house medical

advisors and independent physicians besides Dr. Smith, including Dr. Joseph

Monkofsy who concluded that neither the March 9 EMG report nor other medical

files demonstrated “any of the exclusionary diagnoses listed . . . including current

objective evidence of radiculopathy.” Aplt. App. Vol. III at 528. MetLife also

asked Ms. McClenahan’s physician, Dr. John Drye, to review MetLife’s findings.

Disagreeing with the other physicians consulted by MetLife, Dr. Drye believed

Ms. McClenahan’s disability had objective evidence of radiculopathies. Aplt.

App. Vol. III at 509. Based on the entire record before it, MetLife nevertheless

upheld its original determination to deny Ms. McClenahan any further benefits.

      Having exhausted MetLife’s appeals process, Ms. McClenahan brought this

lawsuit, arguing that MetLife erred in its assessment of her condition and arguing

that she should be allowed to supplement the administrative record with a new

medical report dated March 19, 2008. The district court held the new medical

report inadmissible and eventually granted summary judgment in favor of

MetLife.




                                         -3-
                                           II

      In this appeal, Ms. McClenahan contends that a newly enacted Colorado

statute subjects MetLife’s claims decisions to de novo review, and that the district

court erred by applying a lesser, abuse of discretion standard to MetLife’s

determination. Further, even if an abuse of discretion standard does apply, Ms.

McClenahan argues that MetLife abused its discretion. Finally, Ms. McClenahan

contests the district court’s exclusion of the March 19, 2008 medical report. We

address each of these arguments in turn.

                                           A

      The United States Supreme Court has told us that the denial of benefits

under an ERISA plan is reviewed for abuse of discretion if the plan gives the plan

fiduciary — here, MetLife — discretionary authority to determine eligibility for

benefits or to construe the terms of the plan. See Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101, 115 (1989). Before us both sides agree that the policy gives

MetLife discretion, and the district court applied the abuse of discretion standard

when conducting its review of MetLife’s disability determination.

      Still, Ms. McClenahan argues the district court erred when it reviewed

MetLife’s decision for an abuse of discretion; in her view, the court should have

applied de novo standard of review. This is so, she insists, because of a relatively

recent Colorado statute requiring “de novo [review] in any court with

jurisdiction” for a disability benefits “claim [that] has been denied in whole or in

                                         -4-
part.” Colo. Rev. Stat. § 10-3-1116(3). Notably, neither side before us suggests

that Colorado’s statute is preempted by ERISA. Instead, they disagree only over

the application of the state statute to this suit according to its own terms. Because

we agree with MetLife that the statute doesn’t apply to this suit we have no

occasion to pass on the question whether, if applicable, the Colorado statute

might or might not be preempted by ERISA.

      To apply to this case at all, the Colorado statute must operate retroactively.

That’s because § 10-3-1116 was enacted after all the events at issue had occurred,

including the plan’s formation and MetLife’s denial of benefits. See In re Estate

of Dewitt, 54 P.3d 849, 854 (Colo. 2002) (“[A] statute is presumed to operate

prospectively, meaning it operates on transactions occurring after its effective

date.”) (emphasis added). In deciding whether a statute can be applied

retroactively under Colorado law, a court must ask two questions. First, the court

must ask if the Colorado General Assembly clearly intended the statute to have

retroactive effect. Second, if the legislature did so intend, the court must then ask

if the statute is unconstitutionally retrospective. See Dewitt, 54 P.3d at 854;

Colo. Const. Art. II, § 11 (prohibiting any statute that is “retrospective in its

operation.”) (emphasis added). A statute intended to operate retroactively is

impermissibly retrospective under the Colorado constitution — and thus can’t be

applied retroactively under state law — if but only if it impairs a vested right,

creates a new obligation, imposes a new duty, or attaches a new disability. See

                                         -5-
Dewitt, 54 P.3d at 854; Cont’l Title Co. v. District Court, 645 P.2d 1310, 1314-15

(Colo. 1982) (allowing retroactive application of a law where its only effect was

to “provide an alternative remedy for vindication of the alleged discriminatory

and unfair employment practice”).

      Conflating the terms “retroactive” and “retrospective,” Ms. McClenahan

argues that Colo. Rev. Stat. § 10-3-1116(3) can apply to this case because it

doesn’t constitute an impairment of a vested right or imposition of a new duty.

After all, she says, the statute only affects a court’s standard of review. But even

assuming without deciding that the statute before us doesn’t impair any vested

right and so isn’t retrospective, Ms. McClenahan fails to show that the legislature

clearly intended the statute to have retroactive effect — the first step of the two-

part test under Colorado law. Indeed, at oral argument Ms. McClenahan’s

counsel admitted he couldn’t discern any such intent, and neither do we. While

an express “declaration” of retroactivity isn’t required, there is no indication that

the statute before us was ever intended to apply to prior conduct. Cf. Ficarra v.

Dep’t of Regulatory Agencies, 849 P.2d 6, 12-14 (Colo. 1993) (finding

“unmistakable intent” of retroactivity, where the statute on its face would ascribe

“to certain transactions that occurred before the effective date of the [amendment]

different legal effects from that which they had under the law when they

occurred.”). So it is that under Colorado Supreme Court precedent, the statute




                                         -6-
here can’t be applied to MetLife’s claim determination, and the district court

properly reviewed MetLife’s decision in this case for abuse of discretion.

                                          B

      We now turn to the propriety of the district court’s holding that MetLife did

not abuse its discretion, or act arbitrarily and capriciously, when denying Ms.

McClenahan’s claim for continued benefits. In the ERISA context, the terms

“abuse of discretion” and “arbitrary and capricious” are used interchangeably, at

least in this circuit. Weber v. GE Group Life Assur. Co., 541 F.3d 1002, 1010

n.10 (10th Cir. 2008). And a decision is arbitrary and capricious if it lacks a

“reasonable basis” or is not supported by substantial evidence. See Adamson v.

Unum Life Ins. Co. of Am., 455 F.3d 1209, 1212 (10th Cir. 2006) (“[T]here is no

requirement that the basis be the only logical one or even the superlative one . . .

[only that] the administrator’s decision resides somewhere on a continuum of

reasonableness — even if on the low end.”); Sandoval v. Aetna Life & Cas. Ins.

Co., 967 F.2d 377, 382 (10th Cir. 1992). Based on the record as a whole,

evidence is substantial if a “reasonable mind might accept [it] as adequate to

support the conclusion reached by the [decisionmaker].” Sandoval, 967 F.2d at

382 (citation omitted). While the decisionmaker must take into account

“whatever in the record fairly detracts from” its determination, substantial

evidence requires “more than a scintilla but less than a preponderance.” Id.

(citation omitted).

                                         -7-
      Because MetLife suffers from a conflict of interest in this case — a conflict

created by the fact that MetLife pays benefits out of its own pocket and

determines whether an employee is eligible — we “dial back our deference,”

weighing the conflict as a “factor in determining whether there is an abuse of

discretion.” Weber, 541 F.3d at 1010; Holcomb v. Unum Life Ins. Co. of Am., 578

F.3d 1187, 1192-93 (10th Cir. 2009). The plaintiff nevertheless retains the

burden of showing abuse. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 116

(2008); Holcomb, 578 F.3d at 1192-93 (10th Cir. 2009) (recognizing abrogation

of Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1005 (10th Cir. 2004)).

      We agree with the district court that Ms. McClenahan failed to carry her

burden in this case. This is because we can’t say MetLife acted unreasonably

when it denied benefits after she failed to provide evidence of radiculopathies on

or after March 13, 2006. MetLife consulted in-house nurses and doctors, as well

as independent physicians, and sought out responses from Ms. McClenahan’s own

treating physicians. Cf. Holcomb, 578 F.3d at 1193 (“Unum took steps to reduce

its inherent bias by hiring two independent physicians . . . .”). For example,

independent physician Dr. Smith concluded that “[a]s it relates to the claimant’s

neuromusculoskeletal and soft tissue disorders, the medical records do not

indicate objective clinical evidence for . . . radiculopathies . . . .” Aplt. App. Vol.

IV at 636. Moreover, Dr. Smith wrote that “[r]ecent exam findings” indicated

“no neuromuscular abnormalities or nerve root tension signs consistent with

                                          -8-
radiculopathies.” Id. After Ms. McClenahan challenged MetLife’s initial claim

denial, MetLife consulted another independent physician, Dr. Monkofsky. While

asked by MetLife to look for evidence of radiculopathies “beyond March 13,

2006,” Dr. Monkofsky conducted a more extensive review, examining Ms.

McClenahan’s records dating from October 2003 through October 2007 — the

date he performed his review. 1 See Aplt. App. Vol. III at 520, 527-29.

Ultimately, he concluded that “there was insufficient objective medical evidence

to support any of the exclusionary diagnoses . . . including current objective

evidence of radiculopathy.” Id. at 528. Referring specifically to the March 9,

2006 EMG report, he noted that “[o]ld diagnostic reports indicating evidence of

‘chronic denervation’ at L5 do not support current or continuing evidence of

radiculopathy.” Id.

      That Ms. McClenahan’s physician, Dr. Drye, drew a contrary conclusion

doesn’t suffice to render MetLife’s decision arbitrary and capricious. After all,

MetLife has no obligation to “accord special weight to the opinions of a

claimant’s physician; nor may courts impose on plan administrators a discrete

burden of explanation when they credit reliable evidence that conflicts with a

treating physician’s evaluation.” Black & Decker Disability Plan v. Nord, 538

      1
        Dr. Monkofsky, in his report, rephrased MetLife’s question as “Is there
any evidence of the exclusions listed below [including radiculopathy] beyond
3/16/06?” Aplt. App. Vol. III, at 527. We don’t think this typographical
inconsistency infects Dr. Monkofsky’s analysis as to render it unreliable. In any
event, Ms. McClenahan doesn’t argue otherwise.

                                        -9-
U.S. 822, 834 (2003). Of course, it’s equally true that insurers “may not

arbitrarily refuse to credit a claimant’s reliable evidence, including the opinions

of a treating physician.” Id. But in this case, MetLife didn’t disregard Dr. Drye’s

opinion. To the contrary, it sought out his expertise in light of inconsistent

medical conclusions from other physicians; analyzed and relied on the

conclusions of various physicians (both in-house and independent); requested the

claimant to supplement her medical file throughout the administrative appeals

process; and considered opinions from the other side. See, e.g., Holcomb, 578

F.3d at 1193 (denial of benefits was not an abuse of discretion, even though the

insurer “received a large volume of reports, letters, imaging studies, and exams

that were not entirely consistent”). MetLife’s ultimate decision may not have

been the one Ms. McClenahan sought, and it may not have been the only decision

available to the company on the record created by the parties. But neither can we

say that its decision was an unreasonable one unsupported by substantial

evidence. And more than that our precedent does not require.

      In reply, Ms. McClenahan places heavy emphasis on Dr. Stephens’s

March 9 report, arguing that MetLife gave it unduly short shrift. But to establish

Ms. McClenahan’s entitlement to benefits after March 13, MetLife’s policy

required evidence establishing her continuing disability on or after that date. Dr.

Stephens’s examination establishing that she suffered from radiculopathy at an

earlier date, even a reasonably proximate earlier date, may very well suggest she

                                        - 10 -
continued to suffer from the disorder on or after March 13, but it cannot suffice to

compel such a conclusion. After all, patients sometimes do improve. Besides,

even considering the March 9 report on its own terms, it rated Ms. McClenahan’s

overall motor functions as normal and suggested that denervation near her lower

spinal column was “likely,” not certain. Aplt. App. Vol. III at 564. Given the

equivocal nature of this finding and its timing, we cannot disagree with the

district court’s conclusion that it was reasonable for MetLife to rely more heavily

on other physicians who found no evidence of radiculopathies present on or after

March 13.

      To be sure, Ms. McClenahan also argues that Dr. Monkofsky’s statement —

that there was no “current or continuing evidence of radiculopathy” — suggests

he only looked for radiculopathies as of October 2007, the time he examined her

medical records. And this is a problem, Ms. McClenahan argues, because

MetLife itself indicated that it was her condition as of March 13, 2006, not some

later date, that mattered for determining her entitlement to continued disability

benefits. But reading the physician’s report as a whole, we can’t draw the

inference Ms. McClenahan suggests. Cf. Holcomb, 578 F.3d at 1194 (“Because

[claimant’s] argument overstates the significance of one sentence in a large

administrative record, it is unavailing.”). In responding to MetLife’s inquiry, Dr.

Monkofsky’s report expressly took account of Ms. McClenahan’s medical data




                                        - 11 -
available from October 2003 through October 2007 — belying any contention that

he was only concerned about the presence of radiculopathies in October 2007.

                                         C

      Finally, Ms. McClenahan argues that the district court erred by denying her

request to supplement the administrative record with a medical report dated

March 19, 2008. Again, we cannot agree. Before closing her file in November

2007, MetLife provided Ms. McClenahan with plenty of notice and time to submit

evidence of radiculopathies “beyond” March 13, 2006, but the evidence she

submitted only suggested prior radiculopathy. Aplt. App. Vol. IV at 607

(“April 6, 2007 letter”) (asking her to “include copies of all medical

documentation to support that [she] has remained disabled from any occupation

beyond March 13, 2006 due to” radiculopathies). In these circumstances, the

district court properly ruled that it was obligated to reject Ms. McClenahan’s

effort to introduce new evidence in the trial court proceedings and to limit its

review to the administrative record. Indeed, our binding precedent offered the

district court no other possible path. See Hall v. Unum Life Ins. Co. of Am., 300

F.3d 1197, 1200-01 (10th Cir. 2002); Metzger v. Unum Life Ins. Co. of Am., 476

F.3d 1161, 1166 (10th Cir. 2007) (“Permitting a claimant to receive and rebut

medical opinion reports generated in the course of an administrative appeal . . .




                                        - 12 -
would set up an unnecessary cycle of submission, review, re-submission, and re-

review.”). 2

       The judgment of the district court is affirmed.


                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




       2
         Ms. McClenahan’s unopposed motion to seal volumes three through eight
of the appendix, containing personal medical information, is granted.

                                        - 13 -
