UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

GINA M. NELSON, Plaintiff-Appellant,

v. AETNA LIFE INSURANCE COMPANY, a corporation; BANK OF AMERICA GROUP BENEFITS PROGRAM, an ERISA Employee Welfare Benefit Plan, Defendants-Appellees. No. 13-5073 (D.C. No. 4:09-CV-00594-JHP) (N.D. Okla.)

ORDER AND JUDGMENT *

Before HOLMES , ANDERSON , and BALDOCK , Circuit Judges.
Gina M. Nelson appeals from the district court’s judgment affirming the denial of her request for benefits under disabi lity insurance polic ies governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 18, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND Ms. Nelson worked for Bank of Amer ica as a premier accounts manager. Bank of America provided s hort-term disability (STD) and long-term disability (LTD) benefits to eligible employees under the Bank of America Group Benefits Program (Plan), which is governed by ERIS A. Defendant Aetna Life Insurance Company (Aetna) insured the LTD componen t of the Plan. Aetna was also the claims administrator of the entire Plan a nd had discretionary authority to determine benefits eligibility. Among other things, the Plan defines disability for STD benefits and the first eighteen months of LTD bene fits as being unable to perform all the material and substantial dutie s of a claimant’s particular occupation. After eighteen months, the Plan pays LTD benefits only if an injury or disease prevents a claimant from working at any reasonable occupation. On March 3, 2009, about the time her office was experiencing layoffs, Ms. Nelson notified her manager that she w ould not be returning to work due to health issues. She then applied for STD benefits, claiming she suffered from a number of ailments, including fibromyalgia, a nxiety, fatigue, depre ssion, and pain in the back, neck, and pelvis. Aetna approve d Ms. Nelson’s request through April 3, 2009, noting that she was expected to return to work on April 20, 2009, as stated by her primary care physician, Dr. Michelle Kelle y. Aetna informed Ms. Nelson that if she was unable to return on April 20, she had to submit additional medical evidence supporting a further period of disability to be eligible for c ontinued STD benefits.- 3 - Aetna continued to evaluate Ms. Nels on’s STD claim, assigning it to a nurse case manager, involving Aetna’ s behavioral health unit, and ultimately referring Ms. Nelson’s medical records to two medical doc tors (specialists in internal medicine and orthopedics) for review. Those record s included statements from Dr. Kelley and detailed notes from Ms. Nelson’s weeklong- visit in March 2009 to the Mayo Clinic in Minnesota for evaluation of lupus, fibromyalgia, chronic fatigue, and pain. Both specialists concluded that the records did not support a functional impairment that would prevent Ms. Nelson from performing th e essential functions of her job beyond April 19, 2009. Accordingly, Aetna notif ied Ms. Nelson that her STD claim was not approved beyond April 20 becau se there was no objective medical reason she could not perform her job. Ms. Nelson appealed the denial of her STD claim, but Aetna denied the appeal by letter dated July 24, 2009. Aetna obtaine d additional medical records from as far back as 1999 and had specialists in Inte rnal Medicine, Phys ical Medicine and Rehabilitation, Occupational Medicine, Rheu matology, and Psychol ogy review them. The Internal Medicine specialist also cont acted Dr. Kelley by telephone. Each of the five specialists prep ared a report setting forth a de tailed summary of the medical evidence and concluding that it did not su pport a functional impa irment that would prevent Ms. Nelson from performing her job. Relying on those reports, Aetna reasoned that although Dr. Kelley and one of the Mayo Clinic physicians, Dr. Christina Dilaveri, opined that Ms. Nelson’s impairments prevented her from- 4 - working long-term, those opinions were not supported by any functional examination findings. The only significant physical exam findings were of fibromyalgia with positive trigger points, diffuse tenderness in her back, and degenerative disc disease in her lower back. But th e evidence showed Ms. Nelson was able to perform all activities of daily living, her lupus was in remission, and a neurological exam on March 11, 2009, performed after Ms. Nelson was involved in a car accident near the end of her visit to the Mayo Clinic, was completely normal. Moreover, Dr. Kelley confirmed during the telephone conversation with the Inte rnal Medicine specialist that Ms. Nelson had slow movement a nd some evidence of muscle spasm and muscle-point tenderness consistent with fibromyalgia, but there were no other objective findings, only Ms. Nelson’s s ubjective pain comp laints. As to Ms. Nelson’s mental impairme nts, Aetna noted a diagnosis of generalized anxiety disorder and mild depression, but observe d that her mental-status findings were largely normal, that no risk concerns were indicated, and that there was no indication she was not independent in activities of dail y living or mobility. Further, there was no documentation that any of Ms. Nelson’s medications were ca using side effects that would interfere with her ability to do her job. After Aetna denied her appeal, Ms. Ne lson applied for LTD benefits under the Plan. Aetna denied that cl aim in September 2009 based on the fact that Ms. Nelson was not continuously disabled throughout the applicable “eliminations period” for- 5 - LTD benefits—the greater of the first 180 days of disab ility or the period of time during which STD benefits are payable. Ms. Nelson did not appeal the denial of her LTD claim, but she did file the action underlying this appeal, challenging the denial of both claims. On November 1, 2010, after the parties filed their opening and response brie fs, she received notice of a fully favorable decision fro m the Social Security Ad ministration (SSA) on an application for Disability Insu rance Benefits (DIB) she ha d filed in April 2009. The SSA found she had been disabled since Ma rch 4, 2009, one da y after she stopped working at Bank of America. Ms. Nelson th en filed her reply brief, which asked the district court to supplement the administrative record w ith the SSA’s decision or, in the alternative, to remand th e matter back to Aetna so it could consider the SSA’s decision. Defendants filed a motion to strike the reply br ief and to deny the request to supplement the record. The court gran ted the motion on two alternate grounds: (1) Ms. Nelson’s failure to file a response to it amounte d to a confession of the motion under one of the court’s local rule s and (2) for the reasons stated in the motion. The district court then issued its decision af firming Aetna’s denial of benefits. Ms. Nelson appealed. II. DISCUSSION A. General ERISA standard of review “We review a plan administrator’s decisi on to deny benefits to a claimant, as opposed to reviewing the di strict court’s ruling.” Holcomb v. Unum Life Ins. Co. of- 6 - Am. , 578 F.3d 1187, 1192 (10th Cir. 2009). Because the Plan granted Aetna discretion to determine benefits eligibility and to construe the terms of the Plan, we review its decision to determine whet her it was arbitrary and capricious. See Murphy v. Deloitte & Touche Grp. Ins. Plan , 619 F.3d 1151, 1157 (10th Cir. 2010). Under that standard, Aetna’s “decision need not be the only logical one nor even the best one. It need only be sufficiently suppor ted by facts within [Aetna’s] knowledge to counter a claim that it was arbitrary or capricious.” Kimber v. Thiokol Corp. , 196 F.3d 1092, 1098 (10th Cir. 1999) (internal quotation marks omitted). We will uphold Aetna’s decision “unl ess it is not grounded on any reasonable basis. [We] need only assure that [A etna’s] decision falls some where on a continuum of reasonableness—even if on the low end.” Id. (brackets, citation, and internal quotation marks omitted). B. Order denying request to s upplement administrative record Ms. Nelson takes issue with the district court’s order stri king her reply brief and thereby denying her request to supplement the record with the SSA’s decision finding her disabled as of Ma rch 4, 2009. We see no erro r by the district court and therefore do not consider the SSA decision. 1

1 Although we see no abuse of discretion in the distri ct court’s treatment of Ms. Nelson’s failure to respond to the motion to strike as a confession of that motion under the district court’s local rule, see Hernandez v. George , 793 F.2d 264, 266-67 (10th Cir. 1986) (setting fort h abuse-of-discretion standard of review for enforcing local court rules), we will an alyze the merits of the matter because the district court also ruled on the merits.- 7 - It is clearly established in this circuit that, “in revi ewing a plan administrator’s decision under the arbitrary and capricious sta ndard, the federal courts are limited to the administrativ e record.” Murphy , 619 F.3d at 1157 (int ernal quotation marks omitted). That “general rest riction” applies to “extra-reco rd materials sought to be introduced [that] relate to a claimant’s eligibility for benefits,” but it “does not conclusively prohibit a district court from considering extra-record materials related to an administrator’s dual role conflict of interest” as administrator and insurer of an ERISA plan. Id. at 1162. Here, however, the SSA decision concerned Ms. Nelson’s eligibility for benefits. As such, it does not fall within Murphy ’s exception. Nor do we see any procedural irregular ities here that mi ght, as Ms. Nelson argues, permit record supplementation under Abatie v. Alta Hea lth & Life Insurance
Co. , 458 F.3d 955, 972-73 (9th Cir. 2006), or other cases from out side our circuit on which she relies. Ms. Nelson points out that the Plan required her to file for social security disability benefits, contemplated that a claimant might not receive a decision from the SSA for more than two years, and provide d that a DIB award would be offset against successful cl aims under the Plan. She fu rther contends that Aetna knew she had applied for DIB and issued it s decision quickly, before the SSA could issue a decision potentially favorable to her. But there is no evidence that Aetna did anything other than comply with regulator y time limits for the determination of claims, which serve to promote ERIS A’s goal of providing resolutions “inexpensively and expeditiously,” Murphy , 619 F.3d at 1159 (internal quotation- 8 - marks omitted). 2 Nor is there any indication Ms. Nelson asked Aetna to hold off on a determination of her claim or appeal pe nding the SSA’s decision. And given the regulatory time limits, it is unclear whethe r Aetna could have waited the eighteen or so months that elapsed between Ms. Nelson’ s application for DIB (in April 2009) and the SSA’s decision (in October 2010) even if Ms. Nelson had asked it to or if Aetna thought it necessary. Finally, Ms. Nelson’s reliance on Metropolitan Life Insurance Co. v. Glenn , 554 U.S. 105 (2008), is misplaced. Glenn involved a clai m administrator’s disregard of an SSA decision awarding DIB to a claima nt that was rendered prior to a decision on LTD benefits. See id. at 109, 118. The claim ad ministrator had urged the claimant to argue before the SSA that she was disabled, recommended lawyers for the claimant to pursue her DIB claim, and financially benefitted through offsets against the plan payments. Id. at 109, 118. The Supreme Court concluded that those circumstances “suggested proc edural unreasonableness,” and viewed them as part of a combination of factors to be taken in to account in assessing how a conflict of interest might have affected the benefits decision. Id. at 118. None of those circumstances are present here. Most importantly, the SSA decision was not in existence at the time of Ae tna’s STD decision and was not issued until more than a

2 At its most generous, the governing regulation requires a decision on a claim within 90 days and a decision on an appeal within 60 days, each of which can be extended a maximum additional 90 days and 60 days, respectively, if the administrator determines there are specia l circumstances warranting extension. See 29 C.F.R. § 2560.503-1(f)(1) and (i)(1)(i).- 9 - year later. Glenn says nothing about supplementing an ERISA administrative record with an SSA decision issued long after the claim administrator has denied a claim. And the fact that the SSA decision was not in existence at the time Aetna denied Ms. Nelson’s claims nullifies he r argument that the SSA’s stri cter standard (unable to work any jobs), which was noted in Glenn , might have any role to play in determining whether she could work her sp ecific job, as required for STD benefits under the Plan. Hence, nothing in Glenn causes us to see how th e district court erred in refusing to supplement the re cord with the SSA’s decision. C. The merits of Aetna’s decisions On the merits, Ms. Nelson argues that we should afford less deference to Aetna’s denial of her STD claim because of an inherent conflict of interest Aetna has as both the insurer of the LTD benefits policy and the claim ad ministrator for STD and LTD benefits vested with discretion to determine eligibility. The district court concluded that Aetna did not have a conflict of intere st as to the STD decision because it did not insure the STD porti on of the Plan and there was no evidence suggesting an incentive to de ny the claim. But as noted , LTD benefits are payable only if a claimant satisfies the elimination period, which turns on an initial finding of disability. Because Aetna’s denial of STD benefits foreclosed Ms. Nelson from satisfying the elimination period and from obt aining LTD benefits that Aetna insured, we will assume that Aetna was “in a positio n to favor, conscious ly or unconsciously, its interests over the inte rests of [Ms. Nelson],” Holcomb , 578 F.3d at 1192 (internal- 10 - quotation marks omitted). It that situation, we a pply “a ‘combination-of-factors method of review’ that allows judges to ‘take account of seve ral different, often case-specific, factors, reaching a re sult by weighing all together.’” Id. at 1193 (brackets omitted) (quoting Glenn , 554 U.S. at 117-18). Under that method, a conflict “should prove more important (perhaps of great importance) where circumstances suggest a highe r likelihood that it affected the benefits decision.” Glenn , 554 U.S. at 117. But a conflict “shoul d prove less important (perhaps to the vanishing point) where the administrator has taken active step s to reduce potential bias and to promote accuracy.” Id. Applying this method of analysis, we give the conflict-of-interest factor limited weight because Aetna took step s to reduce any bias by hiring five independent specialists to revi ew Ms. Nelson’s STD claim. See Holcomb , 578 F.3d at 1193 (affording limited weight to conflict where conflicted administrator hired two independent physicians, one to review medi cal records and one to examine claimant, rather than “rely solely on the evaluations and medical opinions of its own on-site physicians and nurses” ). That none of those five specialists examined Ms. Nelson does not alter our view given the vast quan tity of medical record s they considered and the fact that one of the speci alists spoke with Dr. Kelley. See Fought v. Unum Life Ins. Co. of Am. , 379 F.3d 997, 1015 (10th Cir. 2004) (stating that independent medical examinations are “helpful” but “not required” when an administrator has a conflict of interest) (abr ogated on other grounds by Glenn , as stated in Holcomb ,- 11 - 578 F.3d at 1192-93). Ms. Nelson has not offered any evidence to support her conclusory assertion that th e specialists were not indepe ndent. Furthermore, she has not explained how any of t hose reports are flawed othe r than to claim that the specialists’ conclusions about her ability to work differ from the opinions of two of her treating physicians (Drs . Kelley and Dilaveri). Th is argument sounds in the “treating physician” rule applicable in social secu rity proceedings. 3 There is no similar requirement under ERISA. See Black & Decker Disability Plan v. Nord , 538 U.S. 822, 825 (2003) (hol ding that ERISA “plan administ rators are not obliged to accord special deference to the opinions of treating physicians”). Finally, this case is unlike Pierce v. American Waterworks Co. , 683 F. Supp. 996 (W.D. Pa. 1988), on which Ms. Nelson relies. In Pierce , the district court concluded that a denial of benefits was arbitrary a nd capricious where it rested entirely upon the opinion of an independent expert who had reviewed only a letter from the claimant’s doctor and an award of social security disability benefits. Id. at 1000-01. The expert failed to set fort h the factual basis for his opinion, and the opinion was unsupported by the materials he reviewed. Id. Here, Aetna based its decision on the opinions of five independent specialis ts who reviewed copious

3 Under the treating physician rule, th e SSA affords controlling weight to the medical opinions of treating sources provided they are “well-supported by medically acceptable clinical and laborator y diagnostic techniques and . . . not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2). Even where an opinion does not meet this standard, the SSA applies a series of factors to determine what weight it will afford a treating-source opinion. See id.- 12 - medical evidence and set fort h the rationales for their c onclusions. And Ms. Nelson has not shown that their conclusions were unsupported by the evidence they reviewed. 4 In sum, the administrative record shows that Aetna “d iligently endeavored to discover the nature of [M s. Nelson’s] ailments,” Holcomb , 578 F.3d at 1193, and Ms. Nelson has not demonstrated that the reports prepared by th e five independent specialists did not provide a reasonable ba sis for Aetna’s denial of STD benefits beyond April 20, 2009. Because Aetna’s deni al of LTD benefits was based solely on Ms. Nelson’s failure to satisfy the elimin ation period, and Ms. Nelson has raised no other challenge to that decision other than her unsuccessful attack on the denial of STD benefits, she has also failed to show that the denial of LTD benefits was arbitrary and capricious. The judgment of the dist rict court is affirmed.

Entered for the Court Stephen H. Anderson Circuit Judge

4 Ms. Nelson also claims that Aetna should have consulted with potential employers to determin e whether any would hire her gi ven her multiple impairments. Besides citing no legal suppor t for this proposed requir ement, Ms. Nelson overlooks that the relevant inquiry was whether she could perform her job with Bank of America. She also argues th at Aetna’s claim reviewers we re incompetent to render a decision given the complexity of her me dical condition. But this argument is conclusory and therefore insuffici ent to merit appellate review. See Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 679 (10th Cir. 199 8) (“Arguments inadequately briefed in the opening brief are waived.”).