United States Court of Appeals For the First Circuit
No. 24-1598
STEVEN BERNITZ,
Plaintiff, Appellant,
v.
USABLE LIFE; FULLSCOPE RMS f/k/a DISABILITY REINSURANCE MANAGEMENT SERVICES,
Defendants, Appellees,
SYNTA PHARMACEUTICALS GROUP LONG TERM DISABILITY BENEFIT PLAN,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Montecalvo, Lipez, and Aframe, Circuit Judges.
Mala M. Rafik, with whom Rosenfeld & Rafik, P.C. was on brief, for appellant.
Scott K. Pomeroy, with whom Byrne J. Decker and Ogletree, Deakins, Nash, Smoak & Stewart, P.C. were on brief, for appellees.
August 27, 2025 MONTECALVO, Circuit Judge. Plaintiff-Appellant Steven
Bernitz ("Bernitz") was Senior Vice President of Corporate
Development at Synta Pharmaceuticals ("Synta"). Bernitz has a
long history of back problems, and in June 2014, he stopped working
due to chronic back pain. For years thereafter, he received
disability benefits under a long-term disability insurance plan
administered by USAble Life ("USAble"). In 2019, however, USAble
determined that Bernitz was no longer disabled due to various
observed changes in Bernitz's lifestyle and medical condition, and
accordingly terminated his benefits. The benefits termination
started a lengthy phase of administrative reviews and litigation
in federal court, which culminated in the district court below
granting USAble's motion for summary judgment on all counts and
leaving undisturbed USAble's initial decision to terminate
Bernitz's benefits. We affirm.
I. Background
A. Factual and Procedural History
Bernitz has a history of hip and back surgeries dating
back to 1999. In December 2013, Bernitz began working for Synta
as a Senior Vice President of Corporate Development. As part of
his employment benefits, Bernitz was covered by a long-term
disability insurance plan issued and administered by USAble (the
"Plan").
- 2 - 1. The Plan
Several aspects of the Plan are relevant here. The first
is the Plan's definition of "disability," which is defined, in
relevant part, as:
[a]n injury, sickness, or pregnancy [that] requires that you be under the regular care of a physician, and prevents you from performing at least one of the material duties of your regular occupation with reasonable accommodations. If you can perform the material duties of your regular occupation with reasonable accommodation(s), you will not be considered disabled.
The Plan in turn defines "material duty" as:
the sets of tasks or skills required generally by employers from those engaged in an occupation. [USAble] will consider one material duty of your regular occupation to be the ability to work for an employer on a full-time basis as defined in the policy.
The Plan requires beneficiaries to provide, upon USAble's request,
prompt proof of continued disability which may include "medical
records; hospital records; pharmacy records; test results; therapy
and office notes; mental health progress notes; medical exams and
consultations; tax returns; business records; Workers'
Compensation records; payroll and attendance records; job
descriptions; Social Security award and denial notices; and Social
Security earnings records." The Plan also permits USAble to
require beneficiaries to undergo independent medical examinations
and interviews to determine their continuing eligibility for
- 3 - disability benefits. If a beneficiary fails to "provide [USAble]
with continuing proof of disability and the items and authorization
necessary to allow [it] to determine [its] liability, [it] will
not pay benefits." Finally, the Plan grants USAble "the sole
discretionary authority to determine eligibility for participation
or benefits and to interpret the terms of the policy."
2. Disability Claims Under the Plan and Social Security
In June 2014, Bernitz stopped working due to back pain.
He submitted a disability claim under the Plan to USAble in October
2014, which USAble investigated and ultimately approved in March
2015. For about five years thereafter, USAble paid Bernitz monthly
disability benefits under the Plan's terms. During this time,
USAble routinely verified whether Bernitz remained eligible for
disability benefits by, for example, administering a questionnaire
on his activities and daily living habits, receiving Attending
Physician's Statements from Bernitz's physicians on his medical
condition, and monitoring his public records and social media
accounts.
In December 2014, shortly after filing his claim for
disability benefits under the Plan, Bernitz also applied for
disability benefits under the Social Security Disability Insurance
program. This claim, after initial denials, was eventually heard
before an Administrative Law Judge ("ALJ") in June 2018. The ALJ
shortly after that issued a written decision denying Bernitz's
- 4 - Social Security claim, noting, among other things, record evidence
of Bernitz "taking college classes, driving, taking walks up to
half a mile, cooking, taking out the trash," "exercis[ing]
regularly with a personal trainer," traveling to "Hawaii and
National Parks in the southwest," and "spend[ing] about a month in
San Diego house-hunting," activities which, taken as a whole, were
"inconsistent with [Bernitz's] statements concerning the alleged
intensity, persistence, and limiting effects of symptoms."
Bernitz appealed this decision, but it was affirmed by the Social
Security Appeals Council in August 2019.
Meanwhile, as Bernitz's Social Security claim wended
through the administrative process, USAble continued to routinely
receive and review Bernitz's medical information. Because USAble
rests its termination of Bernitz's benefits under the Plan on
alleged improvements to Bernitz's physical condition starting
around 2018, we provide a brief overview of the most relevant
medical assessments from around this time.
In May 2017, Bernitz's pain management specialist, Dr.
Yogesh Patel, submitted a routine Attending Physician's Statement
to USAble. In it, Dr. Patel noted that Bernitz takes gabapentin
for pain management, should not sit more than one to two hours at
a time, should not stand more than thirty minutes at a time, and
should refrain from any repetitive lifting. The statement
concluded: "Patient's condition is permanent and irreversible.
- 5 - Surgery resulted in very minor symptom improvement. Medicat[ion]
and its side effects make prolonged concentration very difficult
or impossible." Dr. Patel followed up on this prognosis in a
January 2019 Back Disorders Questionnaire, stating his belief that
Bernitz would never return to the workforce in a full- or part-time
capacity.
Dr. Stewart Russell, USAble's independent medical
physician tasked with reviewing Bernitz's file, largely agreed
with that assessment as well. In October 2017, after reviewing
treatment records from twenty-one doctors, he wrote that "[b]ased
on the insured's pain complaints, his myriad of low back surgical
procedures, presence of osteoarthritis in both knees, [and his
status after] decompression surgery to [his] shoulder, it is my
opinion that the insured does not have the capacity to perform
full-time sedentary or light work."
After USAble was informed of Bernitz's denied Social
Security claim, USAble requested updated medical records from Dr.
Patel; Dr. Ken Fujioka, Bernitz's endocrinologist; and Dr. Biraj
Shah, Bernitz's primary care physician. These records suggested
a marked, continuing improvement in Bernitz's condition. An office
note from Dr. Shah in January 2018 said that Bernitz would be
leaving for a ten-day trip to Baja, Mexico, and that his weight at
that time was 288 pounds. An office note from Dr. Patel in April
2018 stated that Bernitz was requesting an injection in his knees
- 6 - for an upcoming trip to Boston from California, and that his weight
was 275 pounds. A note from Dr. Shah in August 2018 indicated
that Bernitz's weight was down to 263 pounds due to steady
exercise, that he was no longer taking gabapentin, and was "playing
pickleball and walking 6 days a week, up to an hour at a time."
Bernitz also had a travel consultation with Dr. Shah in March 2019
for a two-week safari to Africa, at which time his weight had
further decreased to 231 pounds. Finally, a note from Dr. Patel
in April 2019 reported that Bernitz "continues to report
substantial relief and improved function with use of [painkiller]
medications" and that Bernitz "reports he has recently lost 70
pounds and some of his other health issues have resolved."
USAble then ordered Bernitz to be surveilled in July,
September, and November 2019 due to what it deemed "inconsistencies
with [Bernitz's] reported activities and the information
documented in his updated medical records." The surveillance
reports indicated that Bernitz was seen walking and entering,
exiting, and driving his car without any visible signs of
discomfort or gait issues. He was also seen going to a gym to
work out with a personal trainer, where he used a treadmill, lifted
barbells, and did exercises on a weight machine.
This surveillance prompted USAble to order another
medical review by Dr. Russell. This review incorporated updated
records from ten of Bernitz's doctors. In October 2019, Dr.
- 7 - Russell observed that Bernitz had "lost [a] significant amount of
weight, thereby decompressing the low back area and allowing
significantly increased activity" and concluded that "[b]ased on
the totality of the medical information in the file, and based on
a reasonable degree of medical certainty, my prior opinion has
changed. My opinion is that the insured is no longer impaired
from performing a full-time light physical demand occupation."
The report also noted Bernitz's travel in 2018 and 2019 to places
like Boston, Florida, Michigan, Mexico, and Africa. In a follow-up
review in December 2019, during which he examined more updated
records, including those related to a September 2019 hip surgery,
Dr. Russell maintained his conclusion that Bernitz was no longer
impaired.
3. Termination of Benefits
In December 2019, USAble sent Bernitz a letter
terminating his benefits. It stated that:
Based on a review of the updated medical records . . . while it is clear [Bernitz] suffers from a degree of chronic pain due to multiple failed back surgeries, his activity level has significantly increased since 2018 with the loss of approximately 70 pounds and a regular exercise regimen. He has reportedly been able to walk six days per week, play pickle ball, work out with a personal trainer for one hour three days per week (both with aerobic exercise and resistive training), travel within and outside the United States (including a 2-week African safari trip in July 2019), and continue his volunteer work,
- 8 - for which he serves on multiple boards of directors.
4. Internal Appeals and Litigation
In May 2020, Bernitz filed an initial appeal of USAble's
decision through the insurer's internal appeals process. In
support, he submitted advocacy letters from Dr. Fujioka and Dr.
Michael White, his acupuncturist; personal statements from himself
and his wife; and a Functional Capacity Evaluation report by
Barbara Tourtellott, an occupational therapist. Dr. Fujioka's
letter contained the following clarification regarding pickleball:
"Basically the patient took a few lessons and attempted again once
but was unable to play due his back[.] There may have been some
misunderstanding between myself and the patient if I stated
anything about him playing pickle ball regularly as again he has
not . . . ."1
USAble assigned Bernitz's appeal to a senior appeals
consultant, Sandra Kaserman. Another physician, Dr. Richard
Maguire, conducted a review of Bernitz's updated records on
USAble's behalf and issued a report in October 2020. Dr. Maguire's
report noted that Tourtellott's evaluation contained various
inconsistencies and omissions, but because of conflicting
information in the record and in light of Bernitz's most recent
1 Three of Dr. Fujioka's visit notes from 2018 and 2019 state that Bernitz had "started playing pickle ball on his off days."
- 9 - surgeries, he recommended that Bernitz attend an independent
medical examination. Bernitz declined, however, expressing
concerns about COVID-19. Kaserman thus opted to collect updated
medical records and have a third-party vendor select a doctor to
review the anthology of documents on Bernitz's condition.
The vendor selected Dr. Richard Kaplan, who is
board-certified in pain medicine, to prepare another report
examining Bernitz's latest medical records. Dr. Kaplan issued his
report in December 2020, which echoed Dr. Maguire's issues with
Tourtellott's evaluation and concluded that "[t]here are numerous
inconsistencies in the medical records as well as in the claimant's
statements which support that not only is impairment unsupported
but rather that the claimant is both capable of an increased level
of activity and that such an increased level of activity would
likely be therapeutic in nature."
Bernitz requested time to respond to Dr. Kaplan's
report, and in March 2021 said that he was being referred for
neuropsychological testing; accordingly, he requested that USAble
put off any final termination decisions until after the
neuropsychological evaluation.
Between July and September 2021, Kaserman sent Bernitz
addendum reports by Drs. Maguire and Kaplan, both of which affirmed
their prior assessments despite new medical records relating to
Bernitz's latest round of back surgery in the summer of 2021.
- 10 - In October 2021, Bernitz submitted additional records,
including a vocational assessment report by Michael LaRaia and a
neuropsychological evaluation conducted by Dr. Kaaren Bekken.
LaRaia's report stated that Bernitz "remains vocationally
unemployable" while Dr. Bekken's evaluation concluded, based on
findings of "significant cognitive impairment," that Bernitz was
"incapacitated from his own occupation."
In response, Kaserman again sought a third-party vendor
to select a physician to review Dr. Bekken's report. The vendor
selected Dr. Malcolm Spica, who prepared a report in October 2021
concluding that Dr. Bekken "chose to interpret the claimant's
average scores [on neurological tests] as representing impairment"
even though "[n]o evidence was provided to support the statement."
And Dr. Kaplan issued yet another review report in February 2022
in light of newly updated records, which again concluded that
Bernitz was no longer impaired. Kaserman sent Bernitz these latest
reports in February 2022, requesting a response within 21 days.
Receiving none, Kaserman sent Bernitz a termination letter on March
9, 2022. The same day, Bernitz submitted a letter responding to
Drs. Kaplan and Spica, along with an additional letter from Dr.
Bekken.
Bernitz then commenced this suit on May 1, 2022.
In August 2022, USAble offered to commence a voluntary
review of the letters that Bernitz sent on the same day that
- 11 - Bernitz's appeal was denied. This final phase of the internal
appeal process consisted of a flurry of exchanges among Drs. Spica,
Kaplan, and Bekken critiquing each others' work, with no doctor
changing their medical opinions.
In February 2023, USAble issued its final determination
letter denying Bernitz's claim.
In June 2024, the district court ruled on the parties'
cross-motions for summary judgment, resolving them both in
USAble's favor and entering judgment for USAble.
This timely appeal followed.
B. ERISA
Because this case is governed by a specific standard of
review under the Employee Retirement Income Security Act of 1974
("ERISA"), Pub. L. No. 93-406, 88 Stat. 829 (codified as amended
in scattered sections of 26 and 29 U.S.C.), we say a few words
about the statute now.
USAble's Plan is regulated exclusively by ERISA because
it is a privately administered employee benefit plan. See 29
U.S.C. § 1144(a) (ERISA "shall supersede any and all State laws
insofar as they may now or hereafter relate to any employee benefit
plan"). ERISA, among other things, "controls the administration
of benefit plans as by imposing reporting and disclosure mandates,
participation and vesting requirements, funding standards, and
fiduciary responsibilities for plan administrators." N.Y. State
- 12 - Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514
U.S. 645, 651 (1995) (citations omitted). Denial of benefits under
an ERISA plan are subject to a particularized and deferential
standard of review, which we expand on below.
II. Standard of Review
We review a district court's grant of summary judgment
de novo. Field v. Sheet Metal Workers' Nat'l Pension Fund, 83
F.4th 59, 66 (1st Cir. 2023).
Our review of USAble's underlying termination decision,
however, remains deferential. "Where, as here, the administrator
of an ERISA plan is imbued with discretion in the interpretation
and application of plan provisions, its use of that discretion
must be accorded deference." Dutkewych v. Standard Ins. Co., 781
F.3d 623, 633 (1st Cir. 2015) (quoting Colby v. Union Sec. Ins.
Co. & Mgmt. Co. for Merrimack Anesthesia Assocs. Long Term
Disability Plan, 705 F.3d 58, 61 (1st Cir. 2013)). This means
that "[a] reviewing court must uphold [the administrator's]
decision unless it is 'arbitrary, capricious, or an abuse of
discretion.'" Id. (quoting Ortega-Candelaria v. Johnson &
Johnson, 755 F.3d 13, 20 (1st Cir. 2014)). In the ERISA benefit
determinations context, the "arbitrary and capricious" and "abuse
of discretion" standards are functionally equivalent. See id. at
633 n.6; Leahy v. Raytheon Co., 315 F.3d 11, 15 n.3 (1st Cir. 2002)
(noting that the Supreme Court in Firestone Tire & Rubber Co. v.
- 13 - Bruch, 489 U.S. 101 (1989), did not distinguish between "arbitrary
and capricious" and "abuse of discretion" in this context).
At bottom, the question is whether an ERISA plan
administrator's eligibility determination is "reasoned and
supported by substantial evidence." Dutkewych, 781 F.3d at 633
(quoting Colby, 705 F.3d at 62). "Evidence contrary to an
administrator's decision does not make the decision unreasonable,
provided substantial evidence supports the decision." Wright v.
R.R. Donnelley & Sons Co. Grp. Benefits Plan, 402 F.3d 67, 74 (1st
Cir. 2005) (citing Gannon v. Metro. Life Ins. Co., 360 F.3d 211,
213 (1st Cir. 2004) and Doyle v. Paul Revere Life Ins. Co., 144
F.3d 181, 184 (1st Cir. 1998)); see generally Leahy, 315 F.3d at
17-18 (discussing and resolving the seeming "discongruence"
between the summary judgment standard of review and the arbitrary
and capricious standard for ERISA cases).
III. Discussion
Bernitz now argues that the district court erred in
granting summary judgment to USAble for the following reasons:
(1) it failed to fully examine USAble's structural conflict of
interest as both adjudicator of claims and payor of benefits as
required by law; (2) it failed to analyze whether USAble followed
specific provisions of the Plan, including the Plan's narrow
definition of "disability"; and (3) the record evidence
conclusively establishes that Bernitz is disabled under the Plan's
- 14 - definition of disability. For the following reasons, we cannot
agree.
A. Structural Conflict and Case-Specific Factors
Bernitz first argues that a structural conflict of
interest, due to USAble serving both as the adjudicator of claims
and the payor of benefits, infected USAble's denial of Bernitz's
claim, rendering the denial of Bernitz's claim an abuse of
discretion. While a structural conflict plainly exists, we
disagree that it improperly influenced USAble's decision.
We take a moment to place the issue of structural
conflicts in the wider context of abuse-of-discretion review. In
Metropolitan Life Insurance Co. v. Glenn, the Supreme Court held
that courts reviewing benefits determinations under ERISA for a
plan administrator's abuse of discretion should "tak[e] account of
several different, often case-specific, factors, reaching a result
by weighing all together." 554 U.S. 105, 117 (2008). One of these
factors is the plan administrator's conflict of interest arising
from its dual role of both evaluating and paying benefit claims.2
Id. at 116-17. This factor
should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited
2 Another factor identified by the Glenn Court is procedural unreasonableness. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 118 (2008). However, Bernitz does not meaningfully contend with this factor, and we accordingly do not address it.
- 15 - to, cases where an insurance company administrator has a history of biased claims administration. It should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances, or by imposing management checks that penalize inaccurate decisionmaking irrespective of whom the inaccuracy benefits.
Id. at 117 (citations omitted). Beyond this factor, however, the
Supreme Court disclaimed any "one-size-fits-all procedural system"
for assessing abuse of discretion, recognizing that "[b]enefits
decisions arise in too many contexts, concern too many
circumstances, and can relate in too many different ways to
conflicts -- which themselves vary in kind and in degree of
seriousness." Id. at 116. Our circuit has likewise declined to
establish a "one-size-fits-all list of factors." Lavery v.
Restoration Hardware Long Term Disability Benefits Plan, 937 F.3d
71, 79 (1st Cir. 2019). Instead, we summarized the ultimate
abuse-of-discretion inquiry as asking: "To what extent has [the
plan administrator] conducted itself as a true fiduciary
attempting to fairly decide a claim, letting the chips fall as
they may?" Id.
Equipped with this understanding, we turn to the
particulars of this case. First, we must parse precisely what
Bernitz argues on appeal, since it appears to us that he conflates
how much weight we should place on the structural conflict factor
- 16 - on the one hand, with the abuse-of-discretion analysis generally
on the other hand. At one point, Bernitz asserts that the district
court "erred in failing to assess whether USAble's conflicted role
manifested in a biased, inaccurate claims process that led to an
unreasonable termination of benefits." But Bernitz at another
point acknowledges that the district court "addressed USAble's
mitigation of its financial conflict [but] committed reversible
error by failing to evaluate the more record-based, 'case-specific
factors' in assessing the reasonableness of USAble's decision."
We address each assertion in turn.
1. Structural Conflict
First, the district court affirmatively observed that
"[b]ecause [USAble] both adjudicated Bernitz's claim and also bore
responsibility for paying out benefits . . . a structural conflict
exists." Bernitz v. USAble Life, No. 22-CV-10712-DJC, 2024 WL
3106249, at *8 (D. Mass. June 24, 2024). The district court
then -- correctly, in our view -- "afford[ed] little weight to
[the] same because [USAble] took sufficient steps to insulate its
claims determination process." Id.; see Denmark v. Liberty Life
Assur. Co., 566 F.3d 1, 9 (1st Cir. 2009) ("[C]ourts are duty-bound
to inquire into what steps a plan administrator has taken to
insulate the decisionmaking process against the potentially
pernicious effects of structural conflicts."). For instance,
USAble employed third-party vendors to select independent
- 17 - physicians to analyze Bernitz's medical records. It used a
separate appeals unit to review the initial denial of Bernitz's
claim. And it made good-faith benefit payments under reservation
of rights while Bernitz appealed USAble's initial termination
decision and USAble continued reviewing updated medical records.
Each of these facts diminishes the weight that we place on the
structural conflict here. See Glenn, 554 U.S. at 117.
Nor do we see contrary record evidence that merits
putting more weight on the structural conflict. For example, the
record does not reflect that USAble "has a history of biased claims
administration," id., or that USAble provided blatantly
inconsistent reasons for termination, or denied Bernitz a
reasonable opportunity to respond to USAble's explanations as to
why it deemed him no longer disabled under the Plan, cf. Lavery,
937 F.3d at 79-81.
Accordingly, we assign no error to the district court's
analysis of the structural conflict present here.
2. Case-Specific Factors
Second, Bernitz submits a list of purportedly
"case-specific factors" which, by his telling, "suggest[] that
[USAble's] structural conflict of interest continued to play a
role":
- 18 - • The Plan's "narrow" definition of disability, which
requires Bernitz to show that he was unable to perform
at least one of several duties of his position;
• The Plan's internal guidance requiring USAble to
explain why it disagrees with Bernitz's experts;
• USAble's emphasis on its own consultants' opinions
despite their alleged "failure to engage with the
relevant evidence and the Plan standard";
• USAble's "selective review of contrary medical and
vocational evidence";
• The district court's "misinterpretation of the
S[ocial ]S[ecurity ]A[dministration]'s decision"; and
• USAble's reliance on Bernitz's weight loss, exercise,
and travel.
Most of these, however, are not "case-specific factors" but rather
characterizations of record evidence that is unfavorable to
Bernitz. And we have already established that "[e]vidence contrary
to an administrator's decision does not make the decision
unreasonable, provided substantial evidence supports the
decision." Wright, 402 F.3d at 74.
And as for USAble's alleged "misinterpretation of the
SSA's decision," this too is not a case-specific factor. Neither
do we see how the denial of Bernitz's Social Security claim bears
- 19 - on USAble's structural conflict, since that claim was adjudicated
in an entirely separate administrative process.
Finally, as for Bernitz's remaining contentions about
the Plan's express terms, it is unclear how they relate to USAble's
structural conflict, since they do not obviously describe
structural aspects of USAble's and Bernitz's relationship that
would motivate USAble to either deny or pay benefits. And so, we
read his contentions as a more general attack on the analytical
soundness of USAble's claim evaluation. Because a "flatly
incorrect interpretation of the Plan" calls into question the
ultimate fairness of USAble's evaluation, Lavery, 937 F.3d at 80,
we consider his argument below.
B. Plan Terms
Bernitz argues that USAble failed to follow the express
provisions of its own Plan -- namely, the Plan's definition of
disability and its requirement that USAble explain any
disagreement with or non-reliance on the medical assessments of
Bernitz's treating physicians. Again, we disagree.
An abuse-of-discretion inquiry must "consider the text
of the ERISA plan and the plain meaning of the words used therein,
which cabin the plan's administrator's discretion." Santana-Díaz
v. Metro. Life Ins. Co., 919 F.3d 691, 695 (1st Cir. 2019) (citing
Colby, 705 F.3d at 65). "[O]nce a plan is established, the
administrator's duty is to see that the plan is 'maintained
- 20 - pursuant to [that] written instrument.'" Heimeshoff v. Hartford
Life & Accident Ins. Co., 571 U.S. 99, 108 (2013) (quoting 29
U.S.C. § 1102(a)(1)) (second alteration in original). However,
"[u]nder [the ERISA] standard, we need not decide the 'best
reading' of the Plan. We need only consider whether [the
administrator's] interpretation of the Plan and its application of
the Plan terms to the facts of this case was 'reasoned and
supported by substantial evidence.'" O'Shea through O'Shea v. UPS
Ret. Plan, 837 F.3d 67, 73 (1st Cir. 2016) (quoting Stamp v. Metro.
Life Ins. Co., 531 F.3d 84, 94 (1st Cir. 2008)).
We thus turn to the Plan terms at issue: the definition
of disability and USAble's obligation to explain where and when it
departs from the assessments of Bernitz's physicians. Examining
each, we conclude that USAble's interpretation and application of
the terms were reasoned and supported by the administrative record.
1. Plan Definition of Disability
As a reminder, the Plan defines "disability" as:
[a]n injury, sickness, or pregnancy [that] requires that you be under the regular care of a physician, and prevents you from performing at least one of the material duties of your regular occupation with reasonable accommodations. If you can perform the material duties of your regular occupation with reasonable accommodation(s), you will not be considered disabled.
And it defines "material duty" as:
- 21 - the sets of tasks or skills required generally by employers from those engaged in an occupation. [USAble] will consider one material duty of your regular occupation to be the ability to work for an employer on a full-time basis as defined in the policy.
USAble conducted a vocational assessment for Bernitz's job to more
specifically define the set of tasks and skills that relate to his
role as marketing executive. The assessment identified the
following physical demands required by that role:
• "Frequent: Sitting (position changes)[;]
Fingering/Keyboarding[;] Reaching[;] 10 lbs.
Lifting/Carrying[;] 10 lbs. Pushing/Pulling[;]"
• "Occasional: Handling[;] Crouching[;] Standing[;]
Walking[;] 20 lbs. Lifting/Carrying[;] 20 lbs.
Pushing/Pulling[;] Traveling."
The parties appear to agree that, putting all this together,
Bernitz would be disabled under the Plan if he could not perform
at least one of the physical demands identified in the vocational
assessment.
Bernitz argues that USAble never applied this framework
for disability to the evidence. In particular, he claims that
USAble never explained whether the alleged improvements in
Bernitz's condition which occasioned the benefits termination
meant that Bernitz could now perform every single occupational
duty listed above and that USAble had Bernitz's medical records
- 22 - evaluated without also providing its reviewers the Plan's standard
of disability. However, that is not what the record shows.
First, USAble's termination decision rests heavily on
Bernitz's significant weight loss and its attendant health and
back pain benefits; his travel to domestic and international
destinations, including a safari in Africa; and reports of Bernitz
taking college classes, driving, walking up to half a mile,
exercising with a personal trainer, and playing pickleball. We
find that these justifications, documented in Bernitz's medical
files and surveillance reports, reasonably support the conclusion
that Bernitz was able to perform every single material duty
identified in the vocational assessment.3
Second, USAble clearly did share the Plan definition of
disability with the independent reviewers: the medical review
forms in question specifically analyze Bernitz's physical
capabilities with respect to the physical tasks identified in the
vocational assessments, which the parties agree determine the
3 For similar reasons, we also reject Bernitz's argument that USAble improperly used the "[Social Security] total disability standard" instead of the Plan's definition. First, Bernitz neither provides what that standard is nor meaningfully explains how it differs from the Plan's definition. Cf. 20 C.F.R. § 404.1520(f) (Social Security Disability Insurance definition of disability: "Your impairment(s) must prevent you from doing your past relevant work."). Second, USAble's termination letters open by explicitly stating the Plan's definition of disability; they do not cite or reference the Social Security definition. Thus, we cannot agree that USAble employed the wrong disability standard, or that its disability determination was analytically flawed.
- 23 - meaning of disability under the Plan. See Bernitz, 2024 WL
3106249, at *9 n.5. And at any rate, the Plan's definition of
disability and the job tasks identified by the vocational
assessment do not comprise a hyper-technical rubric. Rather, they
form a common-sense description of the daily routine of a marketing
executive: sitting, typing, standing, walking, and occasionally
traveling. The administrative record supportably shows that
Bernitz could meet every enumerated physical demand by the time
USAble terminated his benefits.
We thus conclude that USAble both properly identified
the Plan's definition of disability and applied it to the
administrative record.
2. Disagreement with Treating Physicians
Bernitz next contends that USAble failed to explain why
it disagreed with Bernitz's treating physicians' conclusions that
he was disabled, as the Plan required. While we agree that the
Plan requires this kind of explanation, we disagree that USAble
failed to provide it.
USAble's own policies require adverse benefit
determination letters to explain, among other things, "the basis
for disagreement with or non-reliance on: views of health care
- 24 - professionals treating the claimant and vocational professionals
who evaluated the claimant."4
By our read, USAble's determination letters did just
that. For instance, USAble's 2019 letter engages with the 2017
Attending Physician Statement from Bernitz's pain management
specialist Dr. Patel, including and especially Dr. Patel's
diagnosis of failed back syndrome and observation that Bernitz's
condition "is permanent and irreversible." The letter also
discusses Dr. Patel's 2019 Back Disorders Questionnaire in which
Dr. Patel described Bernitz's pain level as "severe" and noted
"Mr. Bernitz would never be able to return to the workforce in a
part-time or full-time capacity."
USAble's 2019 letter then continues to summarize records
obtained from more than thirty of Bernitz's medical providers which
document, among other things, Bernitz's vaccinations and
injections for domestic and international trips in 2018 and 2019;
4 Bernitz also traces this obligation to a 2018 Department of Labor regulation, 29 C.F.R. § 2560.503-1(j)(6), which he contends supplants an observation made by the Supreme Court in Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003), that administrators need not explain their reliance on evidence that conflicts with a treating physician's evaluation until the Department of Labor directs them to do so. While we disagree with Bernitz's account of Nord -- the relevant portion addresses whether to "accord extra respect to treating physicians' opinions," id. at 831, not how much explication is required when disagreeing with them -- we observe at any rate that the 2018 regulation is in relevant part materially identical to the language found in the Plan.
- 25 - that he played pickleball and walked six days per week, for up to
an hour at a time; his markedly lower blood pressure; his ceased
use of gabapentin; and his loss of roughly seventy pounds due to
regular exercise. It then summarizes what rounds of surveillance
revealed: Bernitz walking and entering, exiting, and driving his
car with no signs of pain or gait issues; and going to a gym to
work out with a personal trainer, which included using a treadmill,
lifting barbells, and using a weight machine to perform pull-downs
and leg extensions. The 2019 letter concludes: "while it is clear
[Bernitz] suffers from a degree of chronic pain due to multiple
failed back surgeries, his activity level has significantly
increased since 2018 with the loss of approximately 70 pounds and
a regular exercise regimen."
And USAble's 2022 letter, occasioned by Bernitz's appeal
of the 2019 termination decision, also explained that two
independent physicians found inconsistencies and deficiencies in
a March 2020 Functional Capacity Evaluation that Bernitz
underwent. It then proceeded to explain those flaws in detail.
These determination letters, we think, amply explain why
USAble disagreed with the "views of health care professionals
treating [Bernitz] and vocational professionals who evaluated
[him]": at bottom, substantial evidence regarding Bernitz's
lifestyle and activities contradicted the assessment that Bernitz
- 26 - could no longer sit, stand, and occasionally travel as required by
his vocation.
We thus conclude that USAble satisfied its burden of
explication under the Plan.
C. Record Evidence
Finally, Bernitz assails the evidentiary basis on which
USAble concluded that he is no longer disabled under the Plan.
Bernitz mainly challenges the reliability of unfavorable reports
and medical assessments and argues that favorable, conflicting
evidence should have prevailed over the adverse evidence.
Constrained by the standard of review, however, we see no basis
for overturning the district court's judgment.
There is no doubt that the administrative record here,
amounting to some 8,000 pages, permits conflicting inferences
regarding Bernitz's ability to do his job as defined by the Plan
around the time that USAble terminated his benefits. However, it
is emphatically not our place to "review the ingredients of the
administrative record de novo, without deference to the plan
administrator's findings." Leahy, 315 F.3d at 18. Rather, as we
have explained, we ask only the following: is USAble's decision to
terminate Bernitz's benefits "reasoned and supported by
substantial evidence[?]" Dutkewych, 781 F.3d at 633 (quoting
Colby, 705 F.3d at 62).
- 27 - We think it is. USAble's account of the record -- as
set forth in its 2019 and 2022 determination letters -- is
sufficient for us to find that USAble's decision was backed by
well-developed reasons based on substantial documented evidence of
Bernitz's improved condition by the time USAble deemed him no
longer disabled.
IV. Conclusion
The judgment of the district court is therefore
affirmed.
- 28 -