Case: 17-11012 Date Filed: 08/03/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11012 Non-Argument Calendar ________________________
D.C. Docket No. 8:16-cv-00079-JSM-TGW
ANTONIO LOPEZ,
Plaintiff - Appellant,
versus
STANDARD INSURANCE COMPANY,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(August 3, 2018)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-11012 Date Filed: 08/03/2018 Page: 2 of 8
Antonio Lopez appeals the district court’s decision granting Standard
Insurance Company’s motion for summary judgment and denying his motion for
summary judgment in his case brought pursuant to the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001–1461. He argues the
district court committed plain error by considering evidence generated after the
administrator of his employee benefit plan denied him disability benefits. After
careful review, we affirm.
I.
In May 2003, Lopez began working as a sheetrock applicator for Palm
Harbor Homes, Inc. In late September 2005, Lopez stopped working there, saying
he was suffering from groin pain and cramping. He returned to work on November
22, but was terminated the next day.
Palm Harbor Homes offered disability insurance to its employees through
Standard Insurance. Under Lopez’s policy with Standard, Lopez was eligible for
benefits if he was disabled from performing his “Own Occupation”—a sheetrock
applicator—for up to 24 months. After 24 months, Lopez would remain eligible
for benefits only if his disability prevented him from working in “Any
Occupation.” The policy defined “Any Occupation” as “any occupation or
employment which you are able to perform . . . and in which you can be expected
2 Case: 17-11012 Date Filed: 08/03/2018 Page: 3 of 8
to earn at least 60% of your Indexed Predisability Earnings within twelve months
following your return to work.”
On October 13, 2006, almost a year after he left Palm Harbor Homes, Lopez
filed a long term disability claim with Standard Insurance. He said he was injured
on June 1, 2005 at Palm Harbor Homes and suffered epididymitis and dislocated
spinal discs from heavy lifting.
During a series of appeals spanning almost ten years, Standard obtained a
number of reports reviewing Lopez’s medical records. These reviews found that
Lopez would face some restrictions from work but would be capable of performing
sedentary jobs. In January 2015, Standard also obtained a report from a vocational
consultant. Based on Lopez’s work history and the medical reports suggesting he
could perform sedentary work, the vocational consultant determined Lopez could
be employed as a customer service representative or an information clerk. Using
2013 wage data from the Bureau of Labor Statistics, the report estimated that those
positions would have paid $14.13 and $12.60 per hour, respectively. This was
above Lopez’s previous wage of $9.39 per hour.
On February 9, 2015, Standard finally approved Lopez’s claim for benefits
through the “Own Occupation” period, but denied benefits under the “Any
Occupation” standard after determining Lopez was still able to perform sedentary
work. On May 14, 2015, Lopez appealed Standard’s decision. As part of its 3 Case: 17-11012 Date Filed: 08/03/2018 Page: 4 of 8
review of Lopez’s appeal, Standard obtained another medical review of Lopez’s
file. Other than two discrete periods in 2013 and 2014, the review found that
Lopez would have been able to perform sedentary work from December 2007 to
the present. On June 24, 2015, Standard advised Lopez that it was affirming its
decision.
In January 2016, Lopez brought suit against Standard seeking long-term
disability benefits and attorney’s fees and costs under ERISA. Standard moved for
summary judgment, arguing that Lopez had presented no objective medical
evidence saying he was incapable of performing sedentary work, and Standard’s
decision was therefore reasonable.
Lopez filed his own motion for summary judgment. Lopez argued, among
other things, that Standard’s vocational consultant erred in using income data from
2013 rather than 2007 when analyzing whether Lopez would be able “to earn at
least 60% of [his] indexed predisability earnings within 12 months following [his]
return to work.” In response, Standard said its vocational expert used the most
recent wage data available, which was only inaccurate because Lopez’s claim was
unusually old. In any event, Standard attached the relevant 2007 data to show that
the analysis reached the same result using either the 2007 or 2013 data. Lopez
then asked the court to strike the 2007 data included in Standard’s reply brief,
which was not part of the administrative record.
4 Case: 17-11012 Date Filed: 08/03/2018 Page: 5 of 8
A magistrate judge prepared a Report and Recommendation (“R&R”)
recommending that Standard’s motion for summary judgment be granted. Having
reviewed the administrative record, the magistrate judge found that Lopez was not
disabled from performing any occupation as of December 2007. The magistrate
judge noted that three independent medical consultants said they believed Lopez
could perform sedentary work. As to Lopez’s challenge to the vocational
consultant’s report, the magistrate judge found that Standard was not required to
obtain vocational expert evidence in the first place, and that in any event, any error
in the type of evidence used had been corrected and was harmless. Neither Lopez
nor Standard filed any objections to the R&R. The district court adopted the R&R,
granted Standard’s motion for summary judgment and denied Lopez’s motion for
summary judgment. This appeal followed.
II.
An ERISA plan participant may bring a civil action “to recover benefits due
to him under the terms of his plan, to enforce his rights under the terms of the plan,
or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C.
§ 1132 (a)(1)(B). “We review de novo a district court’s ruling affirming or
reversing a plan administrator’s ERISA benefits decision, applying the same legal
standards that governed the district court’s decision.” Blankenship v. Metro. Life
Ins. Co., 644 F.3d 1350, 1354 (11th Cir. 2011) (per curiam).
5 Case: 17-11012 Date Filed: 08/03/2018 Page: 6 of 8
This Court follows a multi-step framework to review ERISA plan benefits
decisions. The first step of this inquiry is to “[a]pply the de novo standard to
determine whether the claim administrator’s benefits-denial decision is ‘wrong’
(i.e., the court disagrees with the administrator’s decision).” Id. at 1355 (quotation
omitted). In doing this review, we consider only “the material available to the
administrator at the time it made its decision.” Id. at 1354. This rule “prevents
post-hoc relitigation of the substantive claim and encourages a full development of
the record before the administrator.” Bloom v.
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Case: 17-11012 Date Filed: 08/03/2018 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11012 Non-Argument Calendar ________________________
D.C. Docket No. 8:16-cv-00079-JSM-TGW
ANTONIO LOPEZ,
Plaintiff - Appellant,
versus
STANDARD INSURANCE COMPANY,
Defendant - Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(August 3, 2018)
Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-11012 Date Filed: 08/03/2018 Page: 2 of 8
Antonio Lopez appeals the district court’s decision granting Standard
Insurance Company’s motion for summary judgment and denying his motion for
summary judgment in his case brought pursuant to the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001–1461. He argues the
district court committed plain error by considering evidence generated after the
administrator of his employee benefit plan denied him disability benefits. After
careful review, we affirm.
I.
In May 2003, Lopez began working as a sheetrock applicator for Palm
Harbor Homes, Inc. In late September 2005, Lopez stopped working there, saying
he was suffering from groin pain and cramping. He returned to work on November
22, but was terminated the next day.
Palm Harbor Homes offered disability insurance to its employees through
Standard Insurance. Under Lopez’s policy with Standard, Lopez was eligible for
benefits if he was disabled from performing his “Own Occupation”—a sheetrock
applicator—for up to 24 months. After 24 months, Lopez would remain eligible
for benefits only if his disability prevented him from working in “Any
Occupation.” The policy defined “Any Occupation” as “any occupation or
employment which you are able to perform . . . and in which you can be expected
2 Case: 17-11012 Date Filed: 08/03/2018 Page: 3 of 8
to earn at least 60% of your Indexed Predisability Earnings within twelve months
following your return to work.”
On October 13, 2006, almost a year after he left Palm Harbor Homes, Lopez
filed a long term disability claim with Standard Insurance. He said he was injured
on June 1, 2005 at Palm Harbor Homes and suffered epididymitis and dislocated
spinal discs from heavy lifting.
During a series of appeals spanning almost ten years, Standard obtained a
number of reports reviewing Lopez’s medical records. These reviews found that
Lopez would face some restrictions from work but would be capable of performing
sedentary jobs. In January 2015, Standard also obtained a report from a vocational
consultant. Based on Lopez’s work history and the medical reports suggesting he
could perform sedentary work, the vocational consultant determined Lopez could
be employed as a customer service representative or an information clerk. Using
2013 wage data from the Bureau of Labor Statistics, the report estimated that those
positions would have paid $14.13 and $12.60 per hour, respectively. This was
above Lopez’s previous wage of $9.39 per hour.
On February 9, 2015, Standard finally approved Lopez’s claim for benefits
through the “Own Occupation” period, but denied benefits under the “Any
Occupation” standard after determining Lopez was still able to perform sedentary
work. On May 14, 2015, Lopez appealed Standard’s decision. As part of its 3 Case: 17-11012 Date Filed: 08/03/2018 Page: 4 of 8
review of Lopez’s appeal, Standard obtained another medical review of Lopez’s
file. Other than two discrete periods in 2013 and 2014, the review found that
Lopez would have been able to perform sedentary work from December 2007 to
the present. On June 24, 2015, Standard advised Lopez that it was affirming its
decision.
In January 2016, Lopez brought suit against Standard seeking long-term
disability benefits and attorney’s fees and costs under ERISA. Standard moved for
summary judgment, arguing that Lopez had presented no objective medical
evidence saying he was incapable of performing sedentary work, and Standard’s
decision was therefore reasonable.
Lopez filed his own motion for summary judgment. Lopez argued, among
other things, that Standard’s vocational consultant erred in using income data from
2013 rather than 2007 when analyzing whether Lopez would be able “to earn at
least 60% of [his] indexed predisability earnings within 12 months following [his]
return to work.” In response, Standard said its vocational expert used the most
recent wage data available, which was only inaccurate because Lopez’s claim was
unusually old. In any event, Standard attached the relevant 2007 data to show that
the analysis reached the same result using either the 2007 or 2013 data. Lopez
then asked the court to strike the 2007 data included in Standard’s reply brief,
which was not part of the administrative record.
4 Case: 17-11012 Date Filed: 08/03/2018 Page: 5 of 8
A magistrate judge prepared a Report and Recommendation (“R&R”)
recommending that Standard’s motion for summary judgment be granted. Having
reviewed the administrative record, the magistrate judge found that Lopez was not
disabled from performing any occupation as of December 2007. The magistrate
judge noted that three independent medical consultants said they believed Lopez
could perform sedentary work. As to Lopez’s challenge to the vocational
consultant’s report, the magistrate judge found that Standard was not required to
obtain vocational expert evidence in the first place, and that in any event, any error
in the type of evidence used had been corrected and was harmless. Neither Lopez
nor Standard filed any objections to the R&R. The district court adopted the R&R,
granted Standard’s motion for summary judgment and denied Lopez’s motion for
summary judgment. This appeal followed.
II.
An ERISA plan participant may bring a civil action “to recover benefits due
to him under the terms of his plan, to enforce his rights under the terms of the plan,
or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C.
§ 1132 (a)(1)(B). “We review de novo a district court’s ruling affirming or
reversing a plan administrator’s ERISA benefits decision, applying the same legal
standards that governed the district court’s decision.” Blankenship v. Metro. Life
Ins. Co., 644 F.3d 1350, 1354 (11th Cir. 2011) (per curiam).
5 Case: 17-11012 Date Filed: 08/03/2018 Page: 6 of 8
This Court follows a multi-step framework to review ERISA plan benefits
decisions. The first step of this inquiry is to “[a]pply the de novo standard to
determine whether the claim administrator’s benefits-denial decision is ‘wrong’
(i.e., the court disagrees with the administrator’s decision).” Id. at 1355 (quotation
omitted). In doing this review, we consider only “the material available to the
administrator at the time it made its decision.” Id. at 1354. This rule “prevents
post-hoc relitigation of the substantive claim and encourages a full development of
the record before the administrator.” Bloom v. Hartford Life & Accident Ins. Co.,
917 F. Supp. 2d 1269, 1277 (S.D. Fla. 2013). If we agree with the administrator’s
decision, then that is the end of the inquiry. Blankenship, 644 F.3d at 1355. If not,
and if the plan administrator had discretion in reviewing claims, we review the
decision “under the more deferential arbitrary and capricious standard,” taking into
account any possible conflict of interest the administrator may have. Id.
However, both parties agree our review is more limited in this case because
Lopez failed to object to the magistrate judge’s R&R even though he was given
notice and an opportunity to do so. Under Eleventh Circuit rules, when a party
fails to object to a magistrate judge’s R&R, we review only “for plain error, if
necessary in the interests of justice.” Evans v. Ga. Reg’l Hosp., 850 F.3d 1248,
1257 (11th Cir. 2017).
6 Case: 17-11012 Date Filed: 08/03/2018 Page: 7 of 8
III.
Lopez raises one issue on appeal: that the district court “erred by considering
evidence generated after the administrator of an employee benefit plan made its
final decision to deny disability benefits.” He says this was plain error, warranting
reversal.
It is true that “[r]eview of the plan administrator’s denial of benefits is
limited to consideration of the material available to the administrator at the time it
made its decision.” Blankenship, 644 F.3d at 1354. And that is what the
magistrate judge did here, performing a thorough analysis of the medical evidence
that was before Standard and determining that Standard’s decision denying
benefits under the Any Occupation standard was not wrong. This decision was
supported by three medical consultants who opined that Lopez could perform
sedentary work as of December 2007. Standard’s vocational consultant also
determined that particular jobs met Lopez’s restrictions and paid sufficient wages
that Lopez could be expected to earn at least 60% of his predisability earnings in
such positions, as required under his policy. While Lopez argued that the
vocational consultant’s report would have been more accurate if she used data
from 2007 rather than 2013, this does not mean that it was error for Standard to
rely on its vocational consultant’s analysis. And when Lopez raised this issue in
the district court, it was not plain error for the court to note that the analysis turned
7 Case: 17-11012 Date Filed: 08/03/2018 Page: 8 of 8
out the same no matter which data was used. This was not an example of an
insurer initiating a post-hoc relitigation of Lopez’s claim based on new evidence.
See Bloom, 917 F. Supp. 2d at 1277. Standard’s position has always been that
Lopez did not meet his burden of showing that he was disabled from performing
any occupation because he could perform sedentary work. The district court
agreed. Plain error review is a difficult standard to meet, and we cannot say Lopez
has done so here. We therefore affirm the district court’s grant of Standard’s
motion for summary judgment.
AFFIRMED.