                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        April 17, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    M IANN A C. FORRESTER,

                Plaintiff-Appellant,

    v.                                                   No. 06-3010
                                                  (D.C. No. 04-CV-1204-JTM )
    M ETR OPOLITA N LIFE                                   (D . Kan.)
    IN SU RAN CE C OM PA N Y ;
    R AY TH EO N CO M PA N Y ,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.




         Plaintiff M ianna C. Forrester applied for benefits under defendant Raytheon

Company’s Employee Group Long-Term Disability Plan based on fatigue and

pain associated with fibromyalgia, sleep disorder, and depression. Following the

denial of her claim by defendant M etropolitan Life Insurance Company, which is




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
the Plan’s claims administrator, she brought this action for judicial review under

the civil enforcement provision of the Employee Retirement Income Security Act

(ERISA), see 29 U.S.C. § 1132(a)(1). On cross-motions for summary judgment,

the district court held that M etropolitan’s determination of the disability claim

was procedurally proper and supported by substantial evidence. M s. Forrester

appeals, and we affirm.

      M s. Forrester’s procedural objection to the determination of her claim is

undercut by this court’s recent decision in M etzger v. UNUM Life Insurance Co.

of America, 476 F.3d 1161 (10th Cir. 2007). She argues that M etropolitan was

required, as part of its duty of “full and fair” review under 29 U.S.C. § 1133(2),

see also 29 C.F.R. § 2560.503-(1)(h)(2)(iii), to provide her with reports obtained

from health care professionals consulted, after the initial denial of her claim,

pursuant to 29 C.F.R. § 2560.503-1(h)(3)(iii), (4). Specifically, she contends that

before M etropolitan decided her administrative appeal she should have been

provided, and given the opportunity to rebut, the reports of non-examining

consultants M ark R. Brown (rheumatologist), J. W . Rodgers (pulmonologist), and

Lee H. Becker (psychiatrist), who review ed the evidence submitted on her behalf

and confirmed the initial determination that her conditions did not render her

disabled under the Plan. In M etzger we held that the duty of full and fair review

does not require the disclosure of such reports until after determination of a

claimant’s administrative appeal. M etzger, 476 F.3d at 1165-68.

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      M etzger indicated that ERISA review obligations could require disclosure

of consultant reports if they “analyze evidence [not] already known to the

claimant” and thus interject “new factual information or novel diagnoses” into the

case at the administrative-appeal level. Id. at 1167. W hile the reports at issue

basically just review the record as supplemented by additional evidence submitted

on M s. Forrester’s behalf, they do mention two telephone conversations that the

consultants initiated with M s. Forrester’s medical providers. W e need not decide

whether conversations w ith a claimant’s own providers (to whom she obviously

has direct access) fall within the exception to M etzger’s non-disclosure rule, as

any omission in this respect did not cause material prejudice and, absent that,

substantial compliance with ERISA full and fair review requirements is sufficient,

see, e.g., Hickman v. GEM Ins. Co., 299 F.3d 1208, 1215 (10th Cir. 2002); Sage

v. Automation, Inc. Pension Plan & Trust, 845 F.2d 885, 893-95 (10th Cir. 1988);

see also Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 634 (10th Cir. 2003)

(applying substantial-compliance rule to determine if administrator’s decisional

delay should alter standard of review in ERISA case).

      In one conversation, a therapist who saw M s. Forrester once a month for

depression described her condition in a manner consistent with other evidence in

the record (and the decisions denying her disability claim) indicating that her

mood disorder was not the primary issue impacting her return to work and that

she had essentially normal mental functioning, com pare App. at A128-29 with id.

                                         -3-
at A113, A218, A327-29, A332. In the other conversation, a doctor who saw

M s. Forrester for sleep apnea in early 2004 simply recounted the medically

uncontroverted fact that treatment had relieved the complaint. See id. at A132-33.

In short, considering the substance of these telephone conversations in light of the

rest of the record, it is evident that their disclosure would not have altered the

administrative disposition under review and “no purpose would be served by a

[remand for] further, but procedurally correct, review of [M s. Forrester’s] claims”

under the Plan, Sage, 845 F.2d at 895; see also Hickman, 299 F.3d at 1215.

      M s. Forrester raises two narrow substantive issues, both relating to the

opinions of Dr. Tracey Schmidt, a rheumatologist relied on by M etropolitan for

its determination that M s. Forrester retained the physical functional capacity to

“perform each of the material duties of [her] regular job,” thereby precluding a

finding of disability under the Plan, App. at A48. She argues that Dr. Schmidt’s

report is undercut by a failure to consider (1) an “Employer Statement of Job

Demands,” w hich indicated that M s. Forrester’s job potentially involved more

walking than other evidence suggested, and (2) evidence that M s. Forrester’s

husband may have performed some services that a home health aide would

provide (Dr. Schmidt had pointed out that M s. Forrester had not employed a home

health aide). The district court touched on these two points in passing, noting that

they had not been raised in the administrative proceedings. M etropolitan

continues to press this waiver point under the rubric of administrative exhaustion,

                                          -4-
but also argues that the cited evidence does not in any event materially undermine

its administrative decision.

      This circuit, like others, has recognized an exhaustion rule for ERISA

claims derived not from an explicit statutory directive but from “ERISA’s overall

structure of placing primary responsibility for claim resolution on fund trustees.”

M cGraw v. Prudential Ins. Co. of Am., 137 F.3d 1253, 1263 (10th Cir. 1998). W e

have, accordingly, applied a rule barring ERISA claims that were not previously

pursued administratively (i.e., claim exhaustion). But we have not extended this

rule to bar subsidiary arguments urged on judicial review in support of a claim

itself fully exhausted in the administrative process (i.e., issue exhaustion). The

authority cited for M etropolitan’s position on this point consists of two cases

from the Northern District of Illinois. The Seventh Circuit, however, has thus far

“decline[d] to explore” whether the exhaustion bar should apply to subsidiary

arguments advanced with respect to exhausted ERISA claims, Senese v. Chicago

Area I.B. of T. Pension Fund, 237 F.3d 819, 823 (7th Cir. 2001), and there is

other authority (including from the Northern District of Illinois) affirmatively

rejecting issue exhaustion in the ERISA context, see, e.g., Wolf v. Nat’l Shopmen

Pension Fund, 728 F.2d 182, 186 (3d Cir. 1984); Bahnaman v. Lucent Techs.,

Inc., 219 F. Supp. 2d 921, 925 (N.D. Ill. 2002) (following Wolf).

      The approach in Wolf is buttressed by the rejection of issue exhaustion

under the Social Security Act in Sims v. Apfel, 530 U.S. 103 (2000). The Sims

                                          -5-
Court explained that “[t]he basis for a judicially imposed issue-exhaustion

requirement is an analogy to the rule that appellate courts will not consider

arguments not raised before trial courts,” id. at 108-09, and, thus, adoption of

such a requirement “depends on the degree to which the analogy to normal

adversarial litigation applies in a particular administrative proceeding,” id. at 109.

ERISA , like the Social Security Act, was meant “to provide a nonadversarial

method of claims settlement.” Gaither v. Aetna Life Ins. Co., 388 F.3d 759, 774

(10th Cir. 2004) (quotation omitted). Indeed, promotion of this nonadversarial

process is a primary reason for requiring claim exhaustion under ERISA. See,

e.g., Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1209 (11th Cir. 2003);

H arrow v. Prudential Ins. C o. of Am., 279 F.3d 244, 249 (3d Cir. 2002).

      In light of the above considerations, M etropolitan’s waiver argument does

not offer an uncontroversial basis for deciding this appeal. As explained below ,

how ever, there are other bases for affirming the judgment under review, so we

leave the question of issue exhaustion for another case where its resolution may

be necessary to the outcome.

      First of all, there is another, enforceable waiver rule implicated here. An

issue not properly raised in the district court is deemed waived on appeal. Hardin

v. First Cash Fin. Servs., Inc., 465 F.3d 470, 478 n.3 (10th Cir. 2006). W hile

M s. Forrester mentioned in the facts section of her summary judgment brief that it

was uncertain whether Dr. Schmidt had considered the job description or the

                                          -6-
assistance provided by her husband noted above, see App. at A357-58, she never

argued, as to her motion or in response to M etropolitan’s cross-motion, that this

uncertainty negated the substantial evidence necessary to support the denial of

benefits or otherw ise required reversal of the decision, see id. at A362-71; id. at

A372-75. Indeed, the marginalization of these points from the administrative

process onward understandably led the district court to discount them in summary

fashion in the course of its discussion of the evidence. The failure to present

supporting argument can result in the loss of even formally designated issues,

Phillips v. Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992) (collecting cases);

a fortiori, the lack of argument is fatal to issues only informally suggested in the

factual summary of a brief. The isolated statements in M s. Forrester’s brief

merely “suggest[ing] dissatisfaction” with Dr. Schmidt’s opinion “fail[ed] to

frame and develop an issue.” M urrell v. Shalala, 43 F.3d 1388, 1389 n.2

(10th Cir. 1994).

      M oreover, M s. Forrester’s opposition to Dr. Schmidt’s opinion does not

reach far enough to materially undermine the overall determination under review .

In particular, we note that another rheumatologist, Dr. M ark Burns, was consulted

by M etropolitan on administrative appeal and, after independently reviewing the

record, also concluded that M s. Forrester had the physical capacity to perform her

job. See App. at A 120-23. As no objection has been advanced with respect to

Dr. Burns’ report, we need not resolve w hether and to w hat extent Dr. Schmidt’s

                                          -7-
report might be undercut. Cf. M urrell, 43 F.3d at 1389-90 (recognizing that

challenge to only one of two bases for determination is inherently inadequate).

      Confining ourselves, appropriately, to the issues properly preserved and

presented on appeal has obviated any need to present much commentary on the

district court’s order in this case. It should be acknowledged, however, that the

district court’s decision contains a thorough discussion of an ample administrative

record supporting the decision denying benefits.

      The judgment of the district court is AFFIRM ED.


                                                    Entered for the Court



                                                    M ichael W . M cConnell
                                                    Circuit Judge




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