F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS February 9, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
B ON N IE M ER AO U ,
Plaintiff-Appellant,
v. No. 06-5051 (D.C. No. 04-CV-102-EA) TH E W ILLIA M S C OM PA N Y LONG (N.D. Okla.) TERM DISABILITY PLAN, Sued as: The W illiams Companies, Inc. Long-Term Disability Plan,
Defendant-Appellee.
OR D ER AND JUDGM ENT *
Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.
Bonnie M eraou appeals the district court’s January 20, 2006, judgment
affirming the decision by the Administrative Committee of The W illiams
Company (“TW C”) Long-Term Disability Plan (the “Plan”) terminating
* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. M s. M eraou’s long-term-disability (LTD) benefits under the Plan. W e exercise
jurisdiction under 28 U.S.C. § 1291, and affirm.
I. Background
M s. M eraou was hired by TW C in 1987 as a systems analyst. During her
employment at TW C, she became a participant in the Plan, which provides LTD
benefits to eligible participants. 1 In 1992 she began receiving LTD benefits under
the Plan, based on diagnoses of fibromyalgia, osteoarthritis, cervical facet
atropathy, migraine headaches, and depression. She continued to receive these
benefits until they were terminated in August 2002. On September 18, 1994,
M s. M eraou was approved for social security disability benefits, which w ere
awarded retroactively to July 1992.
a. Provisions of Plan
The Plan defines “Total Disability” in pertinent part as follow s:
“Totally Disabled” or “Total Disability” means, [after the] twenty-four (24) month [elimination] period . . . the inability of such
1 References to specific provisions of the Plan are to the January 1, 2002, version of the Plan, and amendments thereto, contained in the administrative record and provided to us as part of Appellant’s Supplemental Appendix. The district court, and both parties in their appellate briefs, have cited this version of the Plan for its relevant terms. The 2002 version of the Plan specifically provides that “[a]ny individual who participated in the Prior Plan on December 31, 2000, and who was Totally Disabled on such date, shall continue to participate under this Plan” in accordance with its provisions. Aplt. Supp. App., Vol. II, at 405. The Supplemental Appendix volumes are paginated as follows: “BM /TW C.####”, where “####” represents the page number within the appendix. W e have abbreviated the numbering by deleting the reference to “BM /TW C.”
-2- Participant, based upon conclusive medical evidence, to engage in any gainful occupation for which he or she is reasonably fitted by education, training or experience, as determined by the Plan Administrator.
Aplt. Supp. App., Vol. II, at 403-04. A totally disabled participant is entitled to
payment of monthly disability benefits, but such disability benefits may terminate
if the Participant ceases to be totally disabled. They may also terminate if the
Participant fails to provide evidence that she remains under a physician’s care, or
if she fails to provide current medical information regarding the condition of her
health. Specifically, paragraph 3.10.2 of the Plan provides:
The Plan Administrator shall from time to time and in any event at least every two (2) years require any Participant who shall be receiving M onthly Disability Payments to provide to the Plan Administrator current medical information from his physician, or physicians the Plan Administrator selects, regarding the condition of his health, including evidence of such Participant’s continued Total Disability. Unless a Participant within a reasonable period of time complies with a request of the Plan Administrator to be provided with such information, the Plan Administrator may terminate the Participant’s M onthly Disability Payments.
Id. at 417. Paragraph 3.10.4 further provides:
W hile receiving M onthly Disability Payments, a Participant shall remain under the regular and appropriate care and treatment of a qualified Physician and, upon request of the Plan Administrator, shall provide evidence thereof satisfactory to the Plan Administrator. If a Participant fails either to remain under such care or to provide such evidence, the Plan A dministrator may terminate such Participant’s M onthly Disability Payments.
Id. at 418.
-3- b. Procedural H istory
1. Initial Denial
On February 27, 2002, the claims administrator for the Plan, Kemper
National Services of Kemper Insurance Companies (K emper), 2 requested certain
updated medical information from M s. M eraou. According to a July 3, 2002,
letter to M s. M eraou from Kemper, this request asked her to supply “an Attending
Physician Statement along with six month[s] of Current office, surgery, therapy,
treatment and/or chart notes, along with medical documentation from your
treating physicians, i.e., labs, blood work, physical exam, M RI/x-ray results and
any other diagnostic test results pertaining to the condition for which you are
currently treated for from Dr. W eldon and Dr. Tom[ecek].” Id., Vol. I, at 67-68.
In response M s. M eraou supplied an attending physician’s statement from
Dr. W eldon. The statement, however, was not accompanied by the requested
progress notes.
On April 24, 2002, Kemper requested that M s. M eraou make an
appointment with Dr. Tomecek, as TW C had prepaid for an attending physician’s
statement and six months of current progress notes from him. On M ay 16, 2002,
M s. M eraou advised Kemper that a new physician, Dr. Anthony, was treating her,
2 Kemper is now known as “Broadspire.” But because it was known as Kemper during the time period in question, we continue to refer to it as “Kemper.”
-4- and that she would have him send six months of progress notes. As of July 3,
2002, however, she had not supplied the attending physician’s statements and
progress notes from Drs. Tomecek and Anthony, or the progress notes from
Dr. W eldon. Kemper warned her that if she failed to supply this information by
July 30, 2002, her disability benefits would be terminated effective August 5,
2002. W hen the documents were not received by August 6, 2002, Kemper
unsuccessfully attempted to reach M s. M eraou by telephone. By letter dated
August 7, 2002, Kemper notified M s. M eraou that her LTD benefits had been
terminated effective August 1, 2002, because of her failure to supply the
requested information.
2. First-level Appeal
Kemper received M s. M eraou’s first-level administrative appeal on
August 29, 2002. On September 17, 2002, M s. M eraou faxed to Kemper three
medical records to be considered in connection with her appeal: an initial-office-
visit-and-evaluation report from Dr. Tomecek dated January 22, 2001; an
operative report from Dr. Tomecek dated February 9, 2001; and a letter from
Dr. W elden to Kemper’s Appeals Division dated August 22, 2002, concerning
M s. M eraou’s diagnoses and treatment. In addition, on August 16, 2002,
Dr. W elden telephoned in a report to the Appeals Division, which reached them
before the appeal had actually been filed. On September 23, 2002, Kemper wrote
-5- to M s. M eraou, requesting a 30-day extension to supply her with a written
decision, in order to permit K emper to review all the information in her file.
At this point in the appeals process, the emphasis seems to have expanded
from the procedural issue of M s. M eraou’s failure to supply the requested medical
records to include the additional, substantive question of whether she remained
disabled. Thus, on September 23, 2002, Kemper referred the case to a consulting
physician specializing in internal medicine and endocrinology, Dr. Tamara
Bowman, to prepare a peer-to-peer review designed to answer the following
question: “Does the medical evidence submitted support a disability from 8/1/02?
If does not support, please indicate detailed reasons why and what can be sent on
appeal that would support a functional impairment.” Aplt. Supp. App., Vol. I, at
234. After examining statements from M s. M eraou, medical records from
Dr. W elden and Dr. Royal, an anaesthesiologist, and clinical records from the
W elfit M edical Clinic and the Pain Evaluation and Treatment Center,
Dr. Bowman determined that the evidence “[f]ail[ed] to support [disabling]
functional impairment(s),” id. She suggested that “[i]f additional documentation
were to be submitted on appeal, then a functional capacity evaluation and recent
comprehensive musculoskeletal, joint, and neurologic examinations would be
most relevant.” Id. at 237.
On October 28, 2002, Kemper requested an additional 30-day extension to
review its file, promising a decision by November 22, 2002. Kemper then
-6- obtained an employability-assessment report and a labor-market survey, which
indicated that M s. M eraou could do sedentary skilled and semi-skilled work, and
that within 50 miles of her home there were jobs available of the type that she had
previously performed. On December 6, 2002, Kemper notified M s. M eraou that it
had completed its review of her appeal. It upheld the decision to deny her LTD
benefits, because of “a lack of medical evidence to support [her] inability to
perform sedentary work.” Id. at 256.
3. Second-level Appeal
M s. M eraou obtained the services of counsel, who submitted a second-level
appeal (motion for reconsideration) on January 22, 2003. M s. M eraou requested
an extension of 30 days to submit additional evidence and arguments in support of
her appeal. She thereafter requested, and Kemper granted, further extensions to
permit her to submit additional evidence. Kemper granted a final extension to
July 7, 2003, stating that no further extensions would be granted.
On M ay 29, 2003, M s. M eraou sent Kemper her videotaped statement
together w ith a transcript, and on July 3 she sent records from Dr. Crass, a
psychologist. During July 2003 Kemper obtained additional peer reviews, from a
doctor of internal medicine, Dr. Russell Superfine; a rheumatologist, Dr. Sheldon
Zane; an orthopedic surgeon, Dr. Ira Posner; and a psychologist, Dr. Elana
M endelssohn. Each of these doctors opined, based on a review of M s. M eraou’s
medical records, that she was not disabled. Additionally, by August 4, 2003,
-7- Dr. Bowman had conducted a supplemental peer review, based on additional
records from Drs. Anthony, W eldon, and Royal, and additional hospitalization
and office-visit notes, that reached the same conclusion as her previous peer
review: M s. M eraou was not functionally impaired.
On August 13, 2003, M s. M eraou requested an additional delay of
Kemper’s decision for 35 days, in order to obtain a three-day functional capacity
examination. She also requested that Kemper pay for the examination. Kemper
rejected the request for payment but granted the postponement.
On September 5, 2003, M s. M eraou requested that Kemper further delay its
decision on her claim until its October 2003 meeting. Counsel explained that
M s. M eraou had arranged for neuropsychological testing but would be financially
unable to have a functional-capacity test performed. On October 7, 2003,
M s. M eraou notified Kemper that she had postponed the neuropsychological exam
until October 28, 2003, and requested a delay of the review of her claim until
December 11, 2003.
On October 28, 2003, M s. M eraou was seen by Dr. Sherman, who
conducted a neuropsychological examination. By November 14, 2003, however,
Kemper had not received the record of this examination, and on that date it
advised M s. M eraou that she should submit the record of the examination by
November 26, 2003, to be available for consideration at the December 11, 2003,
meeting. Kemper stated that if the record were submitted after November 26,
-8- 2003, her appeal would be considered at the January 2004 meeting; and if the
record w as not submitted by December 18, 2003, her appeal would nevertheless
be decided at the January meeting without consideration of the additional
information. M s. M eraou forw arded the record on November 21, 2003.
On December 11, 2003, the Plan’s Administrative Committee met and
considered M s. M eraou’s appeal. After thoroughly reviewing and discussing the
medical and other evidence provided, the Committee unanimously voted to deny
the appeal. In a letter to M s. M eraou’s attorney, the Committee explained that
based upon its review of the medical information and documentation provided,
“the Committee has concluded that M s. M eraou is capable of engaging in a
gainful occupation as defined in the Plan, and therefore is not ‘totally disabled’
under the Plan’s definition, as applicable to M s. M eraou.” Aplt. Supp. App.,
Vol. II, at 397.
4. District-court Review
The Employment R etirement Income Security Act of 1974 (ERISA)
provides that a 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). Acting under this provision, M s. M eraou filed in
district court a complaint for review of the termination of her LTD benefits.
After analyzing the evidence the court determined that TW C’s decision to
-9- terminate M s. M eraou’s LTD benefits was supported by substantial evidence and
was not arbitrary and capricious. It therefore upheld the decision terminating
benefits.
II. Analysis
a. Standard of Review
There is no dispute that the Plan expressly gives the Administrative
Committee “sole and absolute discretion” to determine “whether to grant or to
deny any claim for benefits under this Plan.” Aplt. Supp. App., Vol. II, at 424.
“Therefore, we apply an arbitrary and capricious standard to [the Plan]
administrator’s actions.” Allison v. UNUM Life Ins. Co. of Am., 381 F.3d 1015,
1021 (10th Cir. 2004) (brackets and internal quotation marks omitted). “The
district court’s determination of whether a plan administrator’s decision is
arbitrary and capricious is a legal conclusion subject to de novo review.” Rekstad
v. U.S. Bancorp, 451 F.3d 1114, 1119 (10th Cir. 2006).
“In determining whether [the Administrative Committee’s] decision is
arbitrary and capricious, we consider only the arguments and evidence before the
administrator at the time it made that decision and decide: (1) whether substantial
evidence supported [the administrator’s] decision; (2) whether [the administrator]
based its decision on a mistake of law ; and (3) w hether [the administrator]
conducted its review in bad faith or under a conflict of interest.” Finley v.
Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 379 F.3d 1168,
-10- 1176 (10th Cir. 2004) (internal quotation marks omitted). “The A dministrator’s
decision need not be the only logical one nor even the best one. It need only be
sufficiently supported by facts within his knowledge to counter a claim that it was
arbitrary or capricious. The decision will be upheld unless it is not grounded on
any reasonable basis.” Id. (internal quotation marks omitted).
b. Substantial Evidence
M s. M eraou contends that the Administrative Committee’s decision lacked
substantial evidence, “[p]articularly in light of the overwhelming evidence of
disability.” Aplt. Opening Br. at 26. As we have noted, the Administrative
Committee obtained opinions from five consulting physicians who opined that
M s. M eraou had failed to establish a disability under the definition contained in
the Plan. Additionally, Dr. Sherman, the neuropsychologist who conducted an
independent examination on behalf of M s. M eraou, did not expressly find her
disabled from all work. Although he said that “the combination of her ongoing
physical and emotional symptoms likely render her unable to return to her
previous work as a systems analyst,” Aplt. Supp. App., Vol. I, at 11, he added
that further treatment should “enable some degree of vocational functioning” and
that “referral for comprehensive vocational evaluation following appropriate
psychotherapeutic treatment will be helpful in facilitating some type of gainful
employment,” id.
-11- The fact that M s. M eraou’s personal physician, Dr. W elden, reached an
opposing conclusion concerning disability is not, in and of itself, a basis for
reversal. See, e.g., Johnson v. M etro. Life Ins. Co., 437 F.3d 809, 814 (8th Cir.
2006) (“W hen there is a conflict of opinion between a claimant’s treating
physicians and the plan administrator’s reviewing physicians, the plan
administrator has discretion to deny benefits unless the record does not support
denial.”); Elliott v. Sara Lee Corp., 190 F.3d 601, 606 (4th Cir. 1999) (plan
fiduciary may deny disability benefits when conflicting medical opinions are
presented); see also Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382
(10th Cir. 1992) (plan administrator could rely on physician’s report concluding
claimant was not disabled when it determined that the report “was more detailed,
that it contained more objective medical findings, and that his conclusions made
more sense based on the medical evidence” than a competing report concluding
claimant was disabled). In ERISA cases no special deference is due the opinion
of the claimant’s treating physician. See Black & D ecker Disability Plan v. Nord,
538 U.S. 822, 825 (2003). Although M s. M eraou suggests that consultants
employed by the Plan may have financial incentives to make a finding of “not
disabled,” Aplt. Opening Br. at 26, the Supreme Court has recognized that
contrary incentives may also motivate a claimant’s treating physician. See Black
& Decker, 538 U.S. at 832 (“[A] treating physician, in a close case, may favor a
finding of ‘disabled.’”).
-12- M s. M eraou challenges the validity of the consultants’ opinions, however,
on several specific grounds. First, she asserts that the consultants improperly
relied on a lack of objective evidence to support the existence of her allegedly
disabling conditions. Second, she claims that the consultants failed to consider
the combined effect of her impairments on her ability to work. Third, she
challenges Dr. Bow man’s evaluation of her fibromyalgia. W e turn now to those
specific challenges.
1. O bjective Evidence of Disability
M s. M eraou argues that the consultants’ opinions were flawed because they
did not deny that she has the various conditions that she claims to be disabling,
but nevertheless required “recent objective testing to indicate these conditions
exist.” Aplt. Opening Br. at 25. She contends that in light of the diagnoses
received from her own doctors over the years, it should have been unnecessary to
provide objective findings to substantiate the existence of her conditions.
M s. M eraou’s argument rests in large part on a misunderstanding of the
consultants’ opinions. For the most part the consultants did not state that
M s. M eraou needed objective evidence to document the existence of her medical
conditions, already diagnosed by her doctors. O bjective evidence, in their
opinion, was necessary primarily to confirm the disabling severity of these
conditions.
-13- Dr. Bowman, for example, acknowledged that M s. M eraou “has multiple
medical conditions, including a seizure disorder, history of positive rheumatoid
factor, lumbar and cervical disc disease, fibromyalgia, and migraine headaches.”
Aplt. Supp. App., Vol. I, at 237. She noted, however, the lack of evidence
regarding the currently disabling severity of these conditions. Specifically, there
was no documentation concerning M s. M eraou’s response to recent medical
procedures performed to alleviate pain, the functional deficits resulting from her
alleged disc disease, any seizure activity within the past year, or any actively
disabling arthritis symptoms. Dr. Bowman concluded that the available objective
evidence did not establish the disabling nature of her medical conditions.
Dr. Posner noted M s. M eraou’s “positive discogram at L4-5,” her
complaints of pain, and the relief she obtained from spinal blocks and ablation
therapies. Id., Vol. II, at 323. But he concluded that “there is no objective
documented physical findings in the medical records which would, from an
orthopedic point of view , indicate that this claimant is functionally totally
disabled from performing any occupation.” Id. Dr. Posner concluded that,
because of the lack of objective evidence, he could not quantify the effect of
M s. M eraou’s spinal impairments on her ability to work.
Dr. M endelssohn acknowledged that M s. M eraou had a history of
depression and could be experiencing emotional and cognitive difficulties. She
noted, however, that “the most recent documentation does not provide objective
-14- findings or behavioral observations substantiating how the claimant’s difficulties
are impacting her functioning and preventing her from performing useful work.”
Id. at 327.
Although Dr. Zane acknowledged M s. M eraou’s “slightly positive
RA/A NA” (apparently referring to ragocyte and antinuclear antibody, see
M cM anus v. Barnhart, No. 5:04-CV-67-OC-GRJ, 2004 W L 3316303, at *4 nn.
37, 38 (M .D. Fla. Dec. 14, 2004)), he “could not find any clinical evidence of
objective joint findings, rashes, and hepato-renal involvement to confirm a
connective tissue disorder such as Rheumatoid Arthritis or Systemic Lupus.”
Aplt. Supp. App., Vol. II, at 320.
Dr. Superfine agreed that M s. M eraou suffers from “fatigue, a possible
connective tissue disorder, headaches, seizure disorder, irritable [bowel] and
post-menopausal syndromes.” Id. at 317. But he concluded that there were
“insufficient physical and diagnostic findings to support a functional impairment”
of disabling severity. Id.
The consultants did conclude, in some instances, that the diagnoses of
particular ailments were unreliable because they were based on subjective
reporting or w ere unsupported by available objective testing or other data. See,
e.g., id. at 326 (“[I]t does not appear that any behavioral observations or objective
data [concerning depression] were documented. Rather, this note primarily
provides self reported symptoms.”). Even a reliance on this reasoning, however,
-15- would not have been arbitrary and capricious. The Plan provides that “‘Total
Disability’ means the inability of [the] Participant, based upon conclusive medical
evidence, to engage in any gainful occupation for which he or she is reasonably
fitted by education, training or experience, as determined by the Plan
Administrator.” Id. at 404 (emphasis added). M s. M eraou fails to show that it
was unreasonable for the Committee to interpret this definition to require recent,
objective evidence of the existence of a condition, particularly when the
consulting physicians stated that such evidence should have been provided but
was not. “Generally, it is not unreasonable for a plan administrator to deny
benefits based upon a lack of objective evidence.” Johnson, 437 F.3d at 813
(brackets and internal quotation marks omitted); see also, e.g., Kimber v. Thiokol
Corp., 196 F.3d 1092, 1099 (10th Cir. 1999) (“A rational plan administrator could
find [a letter and two reports by a physician] insufficient [to establish disability
based on diabetes] because they do not contain supporting data for the
conclusions reached.”).
2. Com bined Effect of Impairments
M s. M eraou complains that none of the consultants was asked to address
Dr. W elden’s conclusion that it is the combination of M s. M eraou’s impairments
that has made her disabled. She contends that by asking many different
specialists about her various conditions, the Committee evaluated each of her
-16- disabling conditions in a “vacuum,” an indicator of bad faith. Aplt. Opening
Br. at 27.
But there is no reason to doubt that the Committee’s decision was based on
consideration of a combination of M s. M eraou’s conditions. M oreover, given the
absence of sufficient evidence (in the view of the individual specialists) of
functional limitations resulting from any of her conditions, it would be eminently
reasonable to infer that the combination of her conditions w ould not result in
disability.
3. Dr. Bow man’s E valuation of Fibromyalgia
M s. M eraou takes issue with Dr. Bowman’s evaluation of her fibromyalgia.
She argues that the evidence that she produced concerning this condition was
sufficient to establish disability. She specifically criticizes Dr. Bowman for
requiring objective evidence of a condition which, by its very nature, can be
established only by the report of a patient’s subjective symptoms. See Welch v.
U NU M Life Ins. C o. of Am ., 382 F.3d 1078, 1087 (10th Cir. 2004) (fibromyalgia
presents conundrum for insurers and courts because no objective test exists for
proving the disease, its cause or causes are unknown, and its symptoms are
entirely subjective).
Fibromyalgia is a disorder “‘characterized by achy pain, tenderness and
stiffness of muscles, areas of tendon insertions and adjacent soft-tissue
structures.’” Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 627 n.1 (10th Cir.
-17- 2003) (quoting The M erck Manual 481 (17th ed. 1999)). The condition can be
diagnosed more or less objectively by examining for pain 18 trigger points on the
body. See Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d
914, 919 (7th Cir. 2003). Dr. W elden’s notes indicate that M s. M eraou
experienced pain at 18 out of 18 of these trigger points. Dr. Bowman
acknowledged the diagnosis of fibromyalgia, but rejected the assertion that it was
of disabling severity, stating that M s. M eraou “is noted to have fatigue and pain
secondary to fibromyalgia. These are both subjective symptoms. The presence of
trigger points [alone] w ould not constitute a disability.” A plt. Supp. App., Vol. I,
at 237.
M s. M eraou argues that Dr. Bowman’s comments do not provide a
convincing rationale for concluding that her fibromyalgia was not disabling. She
contends that disability cannot be rejected simply because fibromyalgia involves
only subjective symptoms. If this were true, fibromyalgia could never be
disabling, a proposition that courts have rejected. See Hawkins, 326 F.3d at 919.
She also argues that trigger points are indicators of the underlying disease process
that are used as a diagnostic tool, and that Dr. Bowman’s comment that their mere
existence does not constitute a disability is therefore irrelevant and incorrect.
W e note, however, that the Committee did not expressly adopt
Dr. Bowman’s reasoning. It indicated instead that it could not credit
M s. M eraou’s allegations concerning fibromyalgia without more comprehensive
-18- evidence concerning her recent medical condition, which M s. M eraou failed to
supply. Although acknowledging the diagnosis of fibromyalgia, it stated that as a
general matter “there is no documentation within the last year of comprehensive
musculoskeletal, joint, or neurologic examinations to support a significant
functional impairment that would preclude you from working.” Aplt. Supp. App.,
Vol. I, at 256. In view of this deficiency, M s. M eraou was advised to submit
medical data to support her appeal, including, but not limited to, a
“Comprehensive Rheumatology evaluation.” Id. As we have noted, she
submitted some additional information, after much delay, but not a comprehensive
examination by a rheumatologist. Denial of benefits is permissible when the
allegedly disabling condition has been established only by the claimant’s
subjective complaints, and the claimant has failed to supply requested information
that would allow the administrator to determine the ongoing effect of the
condition. See Jordan v. Northrop Grumman Corp. Welfare Benefit Plan,
370 F.3d 869, 877 (9th Cir. 2004).
In the case of a disease such as fibromyalgia, the claimant’s subjective,
uncorroborated complaints of pain constitute the only evidence of the ailment’s
severity. The medical inquiry is therefore intertwined with questions of the
claimant’s credibility, which are the province of the Plan administrator. See id. at
878 (“W ith a condition such as fibromyalgia, where the applicant’s physicians
depend entirely on the patient’s pain reports for their diagnoses, their ipse dixit
-19- cannot be unchallengeable. That would shift the discretion from the
administrator, as the plan requires, to the physicians chosen by the applicant, who
depend for their diagnoses on the applicant’s reports to them of pain.”).
M s. M eraou fails to show that the Committee’s decision, based on her failure to
submit recent, comprehensive medical evidence sufficient to establish the
disabling nature of her fibromyalgia, was arbitrary and capricious. W e therefore
reject her challenge to this aspect of the Committee’s decision.
c. Social Security Disability Determination
The Plan required M s. M eraou to apply for Social Security disability
benefits as a condition of receiving benefits under the Plan. The Social Security
Administration found her totally disabled, effective July 1992, and has continued
to pay her benefits since that finding was made. M s. M eraou appears to argue
that in light of the reduction in cost to the Plan of her receipt of Social Security
benefits over many years, the Plan should now be estopped from terminating her
To adopt this position, however, would be tantamount to requiring the Plan
administrator to continue to pay benefits so long as Social Security benefits
continue. As the district court noted, “The determination of disability under the
Social Security regime cannot be equated with the determination of disability
under the ERISA regime.” Aplt. App. at 11 (citing Black & Decker, 538 U.S. at
832). W e reject M s. M eraou’s argument that her past and continued receipt of
-20- Social Security disability benefits required TW C to continue to pay benefits under
the Plan despite its finding that she had failed to establish her entitlement to such
continued benefits under the Plan requirements.
d. Estoppel Based on Prior Disability Determination
M s. M eraou argues that because TW C found her disabled in 1992 and her
conditions have only worsened since then, it should be estopped from terminating
her benefits now. The terms of the Plan, however, required her to prove her
continued disability by supplying appropriate medical records. The Committee
found that she had failed to do so. If the terms of a Plan “contemplate[] the
ongoing review of all disability claims,” the initial grant of disability benefits
“does not foreclose subsequent principled review.” Kimber, 196 F.3d at 1098.
e. District-court Review
M s. M eraou questions whether the district court actually considered the
record as a whole, particularly since it failed to mention the videotaped interview
that she submitted to the Committee. But because our review of the district
court’s decision is de novo, any such error by the district court would be
immaterial.
The judgment of the district court is AFFIRMED.
Entered for the Court
Harris L Hartz Circuit Judge
-21-