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

                           FOR THE TENTH CIRCUIT                         June 18, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
GINA M. NELSON,

             Plaintiff-Appellant,

v.                                                        No. 13-5073
                                                 (D.C. No. 4:09-CV-00594-JHP)
AETNA LIFE INSURANCE                                      (N.D. Okla.)
COMPANY, a corporation; BANK OF
AMERICA GROUP BENEFITS
PROGRAM, an ERISA Employee
Welfare Benefit Plan,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.


      Gina M. Nelson appeals from the district court’s judgment affirming the denial

of her request for benefits under disability insurance policies governed by the

Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.

§§ 1001-1461. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                 I. BACKGROUND

      Ms. Nelson worked for Bank of America as a premier accounts manager.

Bank of America provided short-term disability (STD) and long-term disability

(LTD) benefits to eligible employees under the Bank of America Group Benefits

Program (Plan), which is governed by ERISA. Defendant Aetna Life Insurance

Company (Aetna) insured the LTD component of the Plan. Aetna was also the

claims administrator of the entire Plan and had discretionary authority to determine

benefits eligibility. Among other things, the Plan defines disability for STD benefits

and the first eighteen months of LTD benefits as being unable to perform all the

material and substantial duties of a claimant’s particular occupation. After eighteen

months, the Plan pays LTD benefits only if an injury or disease prevents a claimant

from working at any reasonable occupation.

      On March 3, 2009, about the time her office was experiencing layoffs,

Ms. Nelson notified her manager that she would not be returning to work due to

health issues. She then applied for STD benefits, claiming she suffered from a

number of ailments, including fibromyalgia, anxiety, fatigue, depression, and pain in

the back, neck, and pelvis. Aetna approved Ms. Nelson’s request through April 3,

2009, noting that she was expected to return to work on April 20, 2009, as stated by

her primary care physician, Dr. Michelle Kelley. Aetna informed Ms. Nelson that if

she was unable to return on April 20, she had to submit additional medical evidence

supporting a further period of disability to be eligible for continued STD benefits.


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      Aetna continued to evaluate Ms. Nelson’s STD claim, assigning it to a nurse

case manager, involving Aetna’s behavioral health unit, and ultimately referring

Ms. Nelson’s medical records to two medical doctors (specialists in internal medicine

and orthopedics) for review. Those records included statements from Dr. Kelley and

detailed notes from Ms. Nelson’s weeklong-visit in March 2009 to the Mayo Clinic

in Minnesota for evaluation of lupus, fibromyalgia, chronic fatigue, and pain. Both

specialists concluded that the records did not support a functional impairment that

would prevent Ms. Nelson from performing the essential functions of her job beyond

April 19, 2009. Accordingly, Aetna notified Ms. Nelson that her STD claim was not

approved beyond April 20 because there was no objective medical reason she could

not perform her job.

      Ms. Nelson appealed the denial of her STD claim, but Aetna denied the appeal

by letter dated July 24, 2009. Aetna obtained additional medical records from as far

back as 1999 and had specialists in Internal Medicine, Physical Medicine and

Rehabilitation, Occupational Medicine, Rheumatology, and Psychology review them.

The Internal Medicine specialist also contacted Dr. Kelley by telephone. Each of the

five specialists prepared a report setting forth a detailed summary of the medical

evidence and concluding that it did not support a functional impairment that would

prevent Ms. Nelson from performing her job. Relying on those reports, Aetna

reasoned that although Dr. Kelley and one of the Mayo Clinic physicians,

Dr. Christina Dilaveri, opined that Ms. Nelson’s impairments prevented her from


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working long-term, those opinions were not supported by any functional examination

findings. The only significant physical exam findings were of fibromyalgia with

positive trigger points, diffuse tenderness in her back, and degenerative disc disease

in her lower back. But the evidence showed Ms. Nelson was able to perform all

activities of daily living, her lupus was in remission, and a neurological exam on

March 11, 2009, performed after Ms. Nelson was involved in a car accident near the

end of her visit to the Mayo Clinic, was completely normal. Moreover, Dr. Kelley

confirmed during the telephone conversation with the Internal Medicine specialist

that Ms. Nelson had slow movement and some evidence of muscle spasm and

muscle-point tenderness consistent with fibromyalgia, but there were no other

objective findings, only Ms. Nelson’s subjective pain complaints. As to

Ms. Nelson’s mental impairments, Aetna noted a diagnosis of generalized anxiety

disorder and mild depression, but observed that her mental-status findings were

largely normal, that no risk concerns were indicated, and that there was no indication

she was not independent in activities of daily living or mobility. Further, there was

no documentation that any of Ms. Nelson’s medications were causing side effects

that would interfere with her ability to do her job.

      After Aetna denied her appeal, Ms. Nelson applied for LTD benefits under the

Plan. Aetna denied that claim in September 2009 based on the fact that Ms. Nelson

was not continuously disabled throughout the applicable “eliminations period” for




                                          -4-
LTD benefits—the greater of the first 180 days of disability or the period of time

during which STD benefits are payable.

      Ms. Nelson did not appeal the denial of her LTD claim, but she did file the

action underlying this appeal, challenging the denial of both claims. On November 1,

2010, after the parties filed their opening and response briefs, she received notice of a

fully favorable decision from the Social Security Administration (SSA) on an

application for Disability Insurance Benefits (DIB) she had filed in April 2009. The

SSA found she had been disabled since March 4, 2009, one day after she stopped

working at Bank of America. Ms. Nelson then filed her reply brief, which asked the

district court to supplement the administrative record with the SSA’s decision or, in

the alternative, to remand the matter back to Aetna so it could consider the SSA’s

decision. Defendants filed a motion to strike the reply brief and to deny the request

to supplement the record. The court granted the motion on two alternate grounds:

(1) Ms. Nelson’s failure to file a response to it amounted to a confession of the

motion under one of the court’s local rules and (2) for the reasons stated in the

motion. The district court then issued its decision affirming Aetna’s denial of

benefits. Ms. Nelson appealed.

                                  II. DISCUSSION

      A. General ERISA standard of review

      “We review a plan administrator’s decision to deny benefits to a claimant, as

opposed to reviewing the district court’s ruling.” Holcomb v. Unum Life Ins. Co. of


                                          -5-
Am., 578 F.3d 1187, 1192 (10th Cir. 2009). Because the Plan granted Aetna

discretion to determine benefits eligibility and to construe the terms of the Plan, we

review its decision to determine whether it was arbitrary and capricious. See Murphy

v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1157 (10th Cir. 2010). Under

that standard, Aetna’s “decision need not be the only logical one nor even the best

one. It need only be sufficiently supported by facts within [Aetna’s] knowledge to

counter a claim that it was arbitrary or capricious.” Kimber v. Thiokol Corp.,

196 F.3d 1092, 1098 (10th Cir. 1999) (internal quotation marks omitted). We will

uphold Aetna’s decision “unless it is not grounded on any reasonable basis. [We]

need only assure that [Aetna’s] decision falls somewhere on a continuum of

reasonableness—even if on the low end.” Id. (brackets, citation, and internal

quotation marks omitted).

      B. Order denying request to supplement administrative record

      Ms. Nelson takes issue with the district court’s order striking her reply brief

and thereby denying her request to supplement the record with the SSA’s decision

finding her disabled as of March 4, 2009. We see no error by the district court and

therefore do not consider the SSA decision.1


1
       Although we see no abuse of discretion in the district court’s treatment of
Ms. Nelson’s failure to respond to the motion to strike as a confession of that motion
under the district court’s local rule, see Hernandez v. George, 793 F.2d 264, 266-67
(10th Cir. 1986) (setting forth abuse-of-discretion standard of review for enforcing
local court rules), we will analyze the merits of the matter because the district court
also ruled on the merits.


                                          -6-
       It is clearly established in this circuit that, “in reviewing a plan administrator’s

decision under the arbitrary and capricious standard, the federal courts are limited to

the administrative record.” Murphy, 619 F.3d at 1157 (internal quotation marks

omitted). That “general restriction” applies to “extra-record materials sought to be

introduced [that] relate to a claimant’s eligibility for benefits,” but it “does not

conclusively prohibit a district court from considering extra-record materials related

to an administrator’s dual role conflict of interest” as administrator and insurer of an

ERISA plan. Id. at 1162. Here, however, the SSA decision concerned Ms. Nelson’s

eligibility for benefits. As such, it does not fall within Murphy’s exception.

       Nor do we see any procedural irregularities here that might, as Ms. Nelson

argues, permit record supplementation under Abatie v. Alta Health & Life Insurance

Co., 458 F.3d 955, 972-73 (9th Cir. 2006), or other cases from outside our circuit on

which she relies. Ms. Nelson points out that the Plan required her to file for social

security disability benefits, contemplated that a claimant might not receive a decision

from the SSA for more than two years, and provided that a DIB award would be

offset against successful claims under the Plan. She further contends that Aetna

knew she had applied for DIB and issued its decision quickly, before the SSA could

issue a decision potentially favorable to her. But there is no evidence that Aetna did

anything other than comply with regulatory time limits for the determination of

claims, which serve to promote ERISA’s goal of providing resolutions

“inexpensively and expeditiously,” Murphy, 619 F.3d at 1159 (internal quotation


                                           -7-
marks omitted).2 Nor is there any indication Ms. Nelson asked Aetna to hold off on a

determination of her claim or appeal pending the SSA’s decision. And given the

regulatory time limits, it is unclear whether Aetna could have waited the eighteen or

so months that elapsed between Ms. Nelson’s application for DIB (in April 2009) and

the SSA’s decision (in October 2010) even if Ms. Nelson had asked it to or if Aetna

thought it necessary.

      Finally, Ms. Nelson’s reliance on Metropolitan Life Insurance Co. v. Glenn,

554 U.S. 105 (2008), is misplaced. Glenn involved a claim administrator’s disregard

of an SSA decision awarding DIB to a claimant that was rendered prior to a decision

on LTD benefits. See id. at 109, 118. The claim administrator had urged the

claimant to argue before the SSA that she was disabled, recommended lawyers for

the claimant to pursue her DIB claim, and financially benefitted through offsets

against the plan payments. Id. at 109, 118. The Supreme Court concluded that those

circumstances “suggested procedural unreasonableness,” and viewed them as part of

a combination of factors to be taken into account in assessing how a conflict of

interest might have affected the benefits decision. Id. at 118. None of those

circumstances are present here. Most importantly, the SSA decision was not in

existence at the time of Aetna’s STD decision and was not issued until more than a
2
      At its most generous, the governing regulation requires a decision on a claim
within 90 days and a decision on an appeal within 60 days, each of which can be
extended a maximum additional 90 days and 60 days, respectively, if the
administrator determines there are special circumstances warranting extension. See
29 C.F.R. § 2560.503-1(f)(1) and (i)(1)(i).


                                         -8-
year later. Glenn says nothing about supplementing an ERISA administrative record

with an SSA decision issued long after the claim administrator has denied a claim.

And the fact that the SSA decision was not in existence at the time Aetna denied

Ms. Nelson’s claims nullifies her argument that the SSA’s stricter standard (unable to

work any jobs), which was noted in Glenn, might have any role to play in

determining whether she could work her specific job, as required for STD benefits

under the Plan. Hence, nothing in Glenn causes us to see how the district court erred

in refusing to supplement the record with the SSA’s decision.

      C. The merits of Aetna’s decisions

      On the merits, Ms. Nelson argues that we should afford less deference to

Aetna’s denial of her STD claim because of an inherent conflict of interest Aetna has

as both the insurer of the LTD benefits policy and the claim administrator for STD

and LTD benefits vested with discretion to determine eligibility. The district court

concluded that Aetna did not have a conflict of interest as to the STD decision

because it did not insure the STD portion of the Plan and there was no evidence

suggesting an incentive to deny the claim. But as noted, LTD benefits are payable

only if a claimant satisfies the elimination period, which turns on an initial finding of

disability. Because Aetna’s denial of STD benefits foreclosed Ms. Nelson from

satisfying the elimination period and from obtaining LTD benefits that Aetna insured,

we will assume that Aetna was “in a position to favor, consciously or unconsciously,

its interests over the interests of [Ms. Nelson],” Holcomb, 578 F.3d at 1192 (internal


                                          -9-
quotation marks omitted). It that situation, we apply “a ‘combination-of-factors

method of review’ that allows judges to ‘take account of several different, often

case-specific, factors, reaching a result by weighing all together.’” Id. at 1193

(brackets omitted) (quoting Glenn, 554 U.S. at 117-18). Under that method, a

conflict “should prove more important (perhaps of great importance) where

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

Glenn, 554 U.S. at 117. But a conflict “should prove less important (perhaps to the

vanishing point) where the administrator has taken active steps to reduce potential

bias and to promote accuracy.” Id.

      Applying this method of analysis, we give the conflict-of-interest factor

limited weight because Aetna took steps to reduce any bias by hiring five

independent specialists to review Ms. Nelson’s STD claim. See Holcomb, 578 F.3d

at 1193 (affording limited weight to conflict where conflicted administrator hired two

independent physicians, one to review medical records and one to examine claimant,

rather than “rely solely on the evaluations and medical opinions of its own on-site

physicians and nurses”). That none of those five specialists examined Ms. Nelson

does not alter our view given the vast quantity of medical records they considered

and the fact that one of the specialists spoke with Dr. Kelley. See Fought v. Unum

Life Ins. Co. of Am., 379 F.3d 997, 1015 (10th Cir. 2004) (stating that independent

medical examinations are “helpful” but “not required” when an administrator has a

conflict of interest) (abrogated on other grounds by Glenn, as stated in Holcomb,


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578 F.3d at 1192-93). Ms. Nelson has not offered any evidence to support her

conclusory assertion that the specialists were not independent. Furthermore, she has

not explained how any of those reports are flawed other than to claim that the

specialists’ conclusions about her ability to work differ from the opinions of two of

her treating physicians (Drs. Kelley and Dilaveri). This argument sounds in the

“treating physician” rule applicable in social security proceedings.3 There is no

similar requirement under ERISA. See Black & Decker Disability Plan v. Nord,

538 U.S. 822, 825 (2003) (holding that ERISA “plan administrators are not obliged to

accord special deference to the opinions of treating physicians”).

      Finally, this case is unlike Pierce v. American Waterworks Co., 683 F. Supp.

996 (W.D. Pa. 1988), on which Ms. Nelson relies. In Pierce, the district court

concluded that a denial of benefits was arbitrary and capricious where it rested

entirely upon the opinion of an independent expert who had reviewed only a letter

from the claimant’s doctor and an award of social security disability benefits. Id.

at 1000-01. The expert failed to set forth the factual basis for his opinion, and the

opinion was unsupported by the materials he reviewed. Id. Here, Aetna based its

decision on the opinions of five independent specialists who reviewed copious


3
       Under the treating physician rule, the SSA affords controlling weight to the
medical opinions of treating sources provided they are “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and . . . not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2).
Even where an opinion does not meet this standard, the SSA applies a series of
factors to determine what weight it will afford a treating-source opinion. See id.


                                         - 11 -
medical evidence and set forth the rationales for their conclusions. And Ms. Nelson

has not shown that their conclusions were unsupported by the evidence they

reviewed.4

      In sum, the administrative record shows that Aetna “diligently endeavored to

discover the nature of [Ms. Nelson’s] ailments,” Holcomb, 578 F.3d at 1193, and

Ms. Nelson has not demonstrated that the reports prepared by the five independent

specialists did not provide a reasonable basis for Aetna’s denial of STD benefits

beyond April 20, 2009. Because Aetna’s denial of LTD benefits was based solely on

Ms. Nelson’s failure to satisfy the elimination period, and Ms. Nelson has raised no

other challenge to that decision other than her unsuccessful attack on the denial of

STD benefits, she has also failed to show that the denial of LTD benefits was

arbitrary and capricious.

      The judgment of the district court is affirmed.


                                                  Entered for the Court

                                                  Stephen H. Anderson
                                                  Circuit Judge
4
       Ms. Nelson also claims that Aetna should have consulted with potential
employers to determine whether any would hire her given her multiple impairments.
Besides citing no legal support for this proposed requirement, Ms. Nelson overlooks
that the relevant inquiry was whether she could perform her job with Bank of
America. She also argues that Aetna’s claim reviewers were incompetent to render a
decision given the complexity of her medical condition. But this argument is
conclusory and therefore insufficient to merit appellate review. See Adler v.
Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately
briefed in the opening brief are waived.”).


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