                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 15 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JOSEPH P. ROCK, JR.,

                Plaintiff-Appellant,

    v.                                                   No. 98-1387
                                                  (D.C. No. 94-WY-2939-AJ)
    UNUM LIFE INSURANCE                                   (D. Colo.)
    COMPANY OF AMERICA,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before EBEL , LUCERO , and MURPHY , 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Joseph P. Rock, Jr. appeals the district court’s judgment in favor

of defendant UNUM Life Insurance Company of America (UNUM) on his claims

for insurance payments based on his permanent disability. The insurance policy

at issue was governed by the Employees Retirement Income Security Act,

29 U.S.C. §§ 1001-1461 (ERISA). We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm.

      Plaintiff was employed by Boettcher & Co. from 1981 to 1988, and again

from February through June of 1989. Defendant issued a group long-term

disability policy to Boettcher & Co., effective March 1, 1982, to cover Boettcher

& Co.’s employees. Plaintiff was covered by the UNUM policy for permanent

disability. On July 1, 1989, plaintiff filed for temporary, and then permanent,

disability benefits based on evidence that he suffered from a mental illness. The

UNUM policy limited benefits for total disability for mental illness to twenty-four

months. UNUM paid benefits to plaintiff for twenty-four months, through

December 1991.

      In April 1994, plaintiff requested that UNUM reopen his claim to consider

evidence that his disability was not, and had never been, caused by a mental

condition, but, instead, was due to physical causes. Plaintiff sought

a determination that his disability was caused by physical conditions.

Consequently, he claimed he was entitled to reinstatement of his disability


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payments to continue until he attained the age of sixty-five, as provided by the

UNUM policy for a physically caused disability. UNUM declined to reclassify

plaintiff’s condition and denied additional disability payments. Plaintiff then

filed suit, pursuant to 29 U.S.C. § 1132(a)(1)(B), to challenge the denial of

benefits. He claimed that UNUM failed to consider his medical evidence of

a physically disabling condition and that UNUM based the amount of disability

payments only on his income during the few months plaintiff worked for

Boettcher & Co. in early 1989, and not on his previous employment with

Boettcher & Co.

      Following a trial to the court, submission of deposition testimony and

closing arguments, the district court issued its findings of fact and conclusions of

law. It concluded that UNUM had properly denied reconsideration of plaintiff’s

disability claim and determined that the amount of benefits paid to plaintiff was

correct.

      On appeal, plaintiff asserts that the district court erred in (1) failing to

review his physician’s opinion that plaintiff’s condition was the result of chronic

fatigue syndrome, a physical illness; (2) finding that UNUM’s review of his case

was adequate; (3) holding that the UNUM mental illness limitation was not

ambiguous; (4) finding that plaintiff was not disabled based on Dr. Levy’s report;




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(5) refusing to consider exhibits and testimony proffered by plaintiff; and

(6) concluding that the monthly benefit payment amounts were correct.

       “‘[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed

under a de novo standard unless the benefit plan gives the administrator or

fiduciary discretionary authority to determine eligibility for benefits or to

construe the terms of the plan.’”     McGraw v. Prudential Ins. Co. of Am.   , 137 F.3d

1253, 1258 (10th Cir. 1998) (quoting      Firestone Tire & Rubber Co. v. Bruch     ,

489 U.S. 101, 115 (1989)). The district court found, and the parties do not

dispute, that the UNUM policy under review here does not provide the plan

administrator or fiduciary with discretion to determine eligibility for benefits or

construe the plan’s terms. Therefore, we review      de novo UNUM’s decision to

deny plaintiff benefits based on his claim of a physical disability. Pursuant to the

order in limine, review of the decision to deny further benefits was limited to the

evidence before the plan administrator at the time the decision was made.        See

Sandoval v. Aetna Life & Cas. Ins. Co.      , 967 F.2d 377, 380 (10th Cir. 1992)

(reviewing administrator’s decision under arbitrary and capricious standard). For

matters not covered by the order in limine, we review the district court’s findings

of fact for clear error and its conclusions of law   de novo . See State Ins. Fund v.

Ace Transp. Inc. , No. 98-6368, 1999 WL 961184, *2 (10th Cir. Oct. 20, 1999).




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       We first address plaintiff’s claim that the district court found that plaintiff

was not disabled. This argument is based on the district court’s finding number

fifty-three, stating that an independent psychiatric examiner, Dr. Levy, “[a]ttached

to [his] report . . . a Mental Disorders Functional Assessment Form, indicating

that plaintiff was capable of working.”   Appellant’s App., Vol. III at 1039

(findings of fact and conclusions of law). The statement does not constitute an

independent district court finding that plaintiff was not disabled. Moreover, the

district court’s judgment does not rely on Dr. Levy’s opinion. Accordingly, there

was no reversible error.

       Similarly, we are not persuaded that the district court refused to consider

evidence plaintiff submitted pertaining to his income records and depositions to

support his claim that the amount of disability payments was incorrect. The

district court determined that UNUM had correctly calculated the payment amount

pursuant to the unambiguous policy language. Therefore, plaintiff’s proffered

evidence was irrelevant to the district court’s conclusion.

       Our review of the record on appeal, the briefs submitted by the parties, and

the district court’s ruling does not indicate any reversible error in the district

court’s judgment. Applying the standards set out above, we affirm the district

court’s judgment for substantially the reasons stated in the Findings of Fact and




                                           -5-
Conclusions of Law, dated September 9, 1998, and entered on the docket

September 17, 1998.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                   Entered for the Court



                                                   Michael R. Murphy
                                                   Circuit Judge




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