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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[NOT FOR PUBLICATION]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.


GERTNER, District Judge.
_______________

Plaintiff Betty Ruth Shapiro

(Shapiro)

Income

brought

action under

Security Act of 1974

claiming

that she was

term disability

issued

this

the

Employee

(ERISA), 29 U.S.C.

1132(a)(1)(B),

wrongfully denied benefits

insurance policy

provided by

Retirement

under a long-

her employer

and

by the defendant Reliance Standard Life Insurance Company

(Reliance).

After

judgment in

favor of defendant.

that the

that she was

court

opportunity

argument.

On appeal,

issued

to present

We affirm.

The

facts

denied due

its decision

court entered

plaintiff contends

district court's findings were clearly

also contends

district

a non-jury trial, the district

erroneous.

process of law

without

additional evidence

She

when the

offering

her the

make a

closing

court

were as

or

FACTS
FACTS
_____

as

found by

the

district

follows: On October 13, 1991, plaintiff was involved in a serious

motor

vehicle

returned

home.

accident.

Three

She

days

was

later,

emergency room complaining of neck,

began seeing an

remained

plaintiff

in his

treated

at the

however,

she went

applied

until May

for

12,

1992.

reemployment

with

In

and

to

shoulder and arm pains.

orthopaedic surgeon, Dr. Kenneth

care

scene

an

She

Morrissey, and

May of

her

1992,

employer,

Fleet/Norstar Financial Group, Inc. (Fleet),1 after Dr. Morrissey

advised

her to

"give it a

try."

She was not

because there were no positions available.

In

hired, however,

April

of

1992,

____________________

Although it is not clear from the record, plaintiff apparently

ceased working sometime after her accident.

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Shapiro

filed

provided

for

group

employees.

In

long-term

response,

Shapiro's treating

The

doctors did

stated

that

disability

they

maladies unrelated

benefits

insurance

Reliance sent

letters

not respond until

to

Reliance,

disability

physicians in

were

with

treating

order to

to

Fleet's

three

evaluate her

July of

1992.

plaintiff

for

her disability

to

claim.

The

which

Two

of

claim.

of them

non-disabling

third,

Dr.

Morrissey, found

"indefinite

period,"2

office records.

the

the plaintiff to

be only

plaintiff

treatment,

that conclusion

was

for an

belied

by his

The records indicated the Dr. Morrissey believed

plaintiff to

advised

but

be "totally disabled"

that

on

May

she

partially disabled,

12,

could

1992,

try

the

to return

and that

last

to

date

her

he had

of

job

his

as

securities input clerk.

In

August

of 1992,

defendant

plaintiff's application

for benefits

1992

1992.

through

July 10,

retroactively approved

for the

Defendant then

period April

10,

requested

that

plaintiff provide additional information substantiating her claim

for

benefits

beyond

"Supplementary Report

"Physical Capacities

July

10,

1992.

It

for Continued Disability

Evaluation Form"

to be

sent

plaintiff

Benefits" and

filled out by

her

treating

physician.

Supplementary Report,

In

November, 1992, plaintiff

but the

physician was left blank.

portion to

Instead,

be

returned the

completed by

her

plaintiff submitted a record

____________________

Dr. Morrissey had

reported this conclusion on

an "Attending

Physician's Statement of Disability" dated April 7, 1992.

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from a Dr. Tarpey, indicating

that he was treating plaintiff for

asthma and

emphysema.

Plaintiff never

submitted the

Physical

Capacities Evaluation Form.

Defendant

physicians seeking

disabled.

next sent

letters

plaintiff's

information as to whether she continued to be

Defendant received no

February of 1993,

directly to

responses to these letters.

plaintiff advised defendant by

In

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

wrote

back

treatment and

in

April

plaintiff's disability.

of

1993

providing

Dr.

Lombardi

information

about

plaintiff's condition, but did not indicate whether plaintiff was

disabled,

the period

or whether she

between May of

had been continuously

1992, when she ceased

disabled during

treatment with

Dr.

Morrissey,

letter

and April

stated

that

accidents/incidents

symptoms.

In

of 1993.3

plaintiff

that

fact, as

could

plaintiff

Moreover,

Dr. Lombardi's

had

"denie[d]

have

produced

admitted at

any

the

prior

current

trial, she

had

earlier taken a nine month disability leave for an unrelated neck

and back injury in 1989.

____________________

This

policy,
ceased to

was significant because, under the


plaintiff's

benefits

would terminate

be totally disabled.

for Fleet in 1993,


disabled from

Since

when she

continue to receive benefits.

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as

soon

as she

she was no longer working

she needed to show that

the time

terms of defendant's

was so

she was continuously


employed

in order

to

On April 30, 1993,

for additional benefits.

defendant denied plaintiff's

claim

Plaintiff appealed through defendant's

internal appeal process, and her claim was again denied.

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DISCUSSION
DISCUSSION

__________

I.
I.

The District Court's Findings


The District Court's Findings
_____________________________

Under the

terms of

defendant's policy,

plaintiff was

eligible for disability benefits only

if she met four

(1) that she

a result of a

was totally disabled as

criteria:

sickness or

injury covered by the policy, (2) that she was under the

care

of

"Elimination

physician,

Period," and

(3)

that

(4) that

she

she

completed

regular

so-called

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

requirements, and therefore was ineligible for benefits.

these

We will

vacate

these

findings

only

if

they

are

clearly

Cumpiano v. Banco Santander Puerto Rico, 902 F.2d


________
____________________________

Cir. 1990).

failed to submit

Morrissey

148, 152 (1st

None of them is.

First,

defendant.

erroneous.

the district

court

found

satisfactory proof of

This finding is

did aver

that plaintiff

her total disability

not clearly erroneous.

that, as

of

April 7,

had

to

Although Dr.

1992, plaintiff

was

totally disabled, one month later, on May 12, 1992, Dr. Morrissey

advised plaintiff that she could try to return to

plaintiff

only

did attempt

refused

because

Defendant, aware

could try

to return to

work at that

of the

of

that Dr.

to return to

lack

Morrissey had

work.

Indeed,

time, and was

an available

position.

advised plaintiff

work, reasonably questioned

she

whether she

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remained

obtain

totally disabled, and

additional proof

attempts,

plaintiff

disability.

to

never

engaged in numerous

support her

produced

The district court's

claim.

any

attempts to

Despite these

evidence

of

her

finding to that effect was not

clearly erroneous.

The

district court also

found that plaintiff

was not

under the regular care of a physician.

that plaintiff

was regularly

No evidence was presented

seeing any

medical provider

from

May 12, 1992, when she ceased treatment with Dr. Morrissey, until

February 22, 1993, when she

There was

also evidence that

therapy during this

plaintiff

was not

period.

under the

started treatment with Dr. Lombardi.

plaintiff had ceased

The

all physical

district court's finding

treatment of

a physician

that

was not

clearly in error.

Finally, the

not,

in fact,

Although

plaintiff

totally

Dr. Lombardi

to be

disabled

testified

found that plaintiff

during

at

totally disabled, and

been in place during the

not credit this

district court

the

trial

relevant

that

that her

he

was

period.

believed

disability had

relevant period, the district court did

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

which

could

have

caused

her

current

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other accidents

symptoms.

(In

fact,

plaintiff

had

complaining

missed

work

of neck and

for

nine

months

back problems.)

in

1989

after

Dr. Lombardi likewise

ignored the fact that plaintiff had reapplied for work just after

her initial application

In light

of the

for disability benefits had

conflicting evidence,

the

been filed.

district court

was

entitled to reach the conclusion that it did.

II.
II.

Due Process Claim


Due Process Claim
_________________

The trial was held on

court

heard three live witnesses:

workers, and

day,

December 19, 1994.

the

the plaintiff, one of her co-

an employee of the defendant.

district

court

The district

directed

the

At the close of 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

her

due

process

opportunity

additional

of

contends that the district

law

for closing

argument,

evidence, prior to

states that

if given the

evidence that an

or

process

claim

or

failed

for

to

the

provide

an

submission

of

issuing its decision.

opportunity, she would

Plaintiff

have presented

her to be totally disabled

in April of

question of whether this

decision was

Putting aside the

relevant

it

Administrative Law Judge of the Social Security

Administration had found

1995.

because

court denied

otherwise

by

admissible,

failing

to

plaintiff

raise it

to

waived

the

court

her

due

below.

Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993).
________
_________________

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Plaintiff never requested the

evidence

or to

make a

closing

between the trial date and

Moreover,

opportunity to present

argument in

additional

the eleven

months

the issuance of the court's decision.

plaintiff never moved

to alter or

under Fed. R. Civ. P. 59.

CONCLUSION
CONCLUSION

amend the judgment

__________

For the foregoing reasons, the judgment of the district

court is affirmed.
________

Costs to appellees.
__________________

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