
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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