UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

MOLLY RIZZI, Plaintiff - Appellant,

v. HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, a/k/a The Hartford, Defendant - Appellee. No. 09-2107 (D. N.M.) (D.C. No. 1:07-CV -00814-JCH-RLP)

ORDER AND JUDGMENT *

Before KELLY , MURPHY , and O'BRIEN , Circuit Judges.
Molly Rizzi brought suit challenging the terminati on of her long-term disability benefits by Hartford Life and Accident Insurance Company (Hartford). The district court concluded the denial was reasonable and gran ted judgment on the pleadings in favor of Hartford. Rizzi appeals. We affirm.

* This order and judgment is an unpublis hed decision, not binding precedent. 10th Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1. It is appropriate as it relates to law of th e case, issue preclusion and claim preclusion. Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A). Citation to an order and judgment must be accompanied by an appropriate parenthetical notation

B (unpublished). Id

. FILED United States Court of Appeals Tenth Circuit 

### June 18, 2010
Elisabeth A. Shumaker Clerk of Court- 2 - I. BACKGROUND Rizzi worked for Sprint/United Manageme nt Company (Sprint) as a “Customer Care Specialist” from July 20 , 1998, until March 28, 2005. (Appellant’s App. Vol. IV Rizzi Rec. at 548.) 1 She answered phone calls fro m customers and helped resolve customer complaints concerni ng their mobile phone servic e or equipment. She often used a computer keyboard to access account information or input notes regarding

customer concerns. At an undefined point in time, Rizzi bega n experiencing pain “from [her] spine, neck, shoulder, down to [her] ri ght arm to [her] right wrist, hand and fingers, or vice versa.” (Appellant’s App. Vol. IV Rizzi Re c. at 523.) She went to see Dr. Hung Quan (her primary physician at the time) about the pain on March 21, 2005. A CT scan of her brain administered that day found nothing abnormal. An MRI of her cervical spine administered four days later showed a “[t]in y right paracentral disk herniation of C3-4 without significant cord compression or impingement. 2 No evidence of stenosis.” 3 ( Id. at

1 Appellant’s Appendix comprises four volumes. The first includes selective filings from the district court. The remain ing three include the administrative record. They are labeled internally as “Rizzi Rec.” a nd their page numbering restarts at 1. Our citation to the appendices will include the en tire citation to avoid any confusion. 2 Herniation occurs when “a small portion of the [soft inner layer of the spine] pushes out through a tear in the [cartilage or disk s] into the spinal canal . This can irritate a nerve and result in pain, numbness or weak ness in your back as well as your leg or arm.” Mayo Clinic Staff, Definition of “Herniated Disk”, Dec. 20, 2008, http://www.mayoclinic.com/hea lth/herniated-disk/DS00893 (last visited May 20, 2010). The record does not indicate Rizz i’s herniation was considered a likely cause of her pain. 3 Stenosis is “a narrowing of one or more ar eas in your spine . . . [that] can cause pain or numbness in your legs, back, neck, shou lders or arms; [and] limb weakness . . . .” Mayo Clinic Staff, Definition of “S pinal stenosis,” Mar. 11, 2010,- 3 - 401.) Otherwise, her spine appeared normal. On March 24, 2005, after being at work for “a few hours,” Rizzi left because of “excruciating pain.” (Appellant’s App. Vol. IV Rizzi Rec. at 525.) She saw Dr. Quan again that day; he referred her to Dr. Edward Hui, a neurologist. Over the next few months, Rizzi saw a number of doctors w ho attempted various forms of treatment including icing her neck, physical therapy, co rtisone (steroid) shots, medial branch nerve blocks, various pain medi cations, and radio frequenc y neurotomy treatments. 4 Rizzi was diagnosed with cervical facet syndrome 5 and myofascial pain. 6 Rizzi participated in Sprint’s Group Lo ng Term Disability Plan (the Plan). Hartford issued and administer ed the Plan which provided “l oss of income protection if [an eligible employee] become[s] disabled from a covered accidental bodily injury, sickness or pregnancy.” (Appellant’s App. Vol. II Rizzi Rec. at 5.) This loss of income

http://www.mayoclinic.com/health /spinal-stenosis/DS00515 (last visited May 20, 2010). 4 This is “a procedure to reduce back an d neck pain” using “heat generated by radio waves to damage specif ic nerves and temporarily in terfere with their ability to transmit pain signals.” Mayo Clinic Staff, Definition of “Radiofre quency neurotomy,” Dec. 9, 2009, http://www.mayoclinic.com/health/r adiofrequency-ne urotomy/MY00947 (last visited May 20, 2010). 5 Cervical facet syndrome involves neck pain brought on by the inflammation of the facet joints – the jo ints in the spine which connect the vertebrae. See Robert E. Windsor, Overview: Cervical Facet Syndrome , emedicine from WebM D, Apr. 30, 2009, http://emedicine.medscape.com/article/93924-overview (last visited May 20, 2010). 6 This is “a chronic form of muscle pain . . . center[ing] around sensitive points in your muscles called trigger poi nts.” Mayo Clinic Staff, Defi nition of “Myofascial pain syndrome,” Dec. 3, 2009, http://www.mayoclinic.com/health/myofascial-painsyndrome/DS01042 (last visited May 20, 2010). The pain can spread throughout the affected muscle. It “has been linked to many types of pain, including headaches, jaw pain, neck pain, low back pain, pelvic pain, and arm and leg pain.” Id.- 4 - protection (otherwise known as disability bene fits) pays eligible employees fifty percent of their income if they ar e unable to work due to a di sability. Under the Plan, an employee is “disabled” when “prevented from performing on e or more of the Essential Duties of [her] Occupation.” 7 ( Id. at 19.) Hartford has “full discretion and authority to determine eligibility for benefits . . . .” ( Id. at 18.) In other word s, it has the right to determine whether there is su fficient evidence to support a claim and can require the claimant “be examined by a doctor, vocational expert, functional expert, or other medical or vocational professional of [Hartford’s] c hoice.” (Appellant’s App. Vol. II Rizzi Rec. at 15.) On August 23, 2005, Rizz i applied for long-term disability benefits under the Plan. 8 She claimed an inability to work because of “extreme pain and not being able to use [her] right extremities properly.” (Appellant ’s App. Vol. IV Rizzi Rec. at 518.) An attached cover letter stated “as of 07-14-05, and after Dr. Quan’s review of [her] x-ray’s [ sic ] . . . along with all the other Medical Diagnosis [ sic ] and Reports that I have Myofascial Pain Syndrome.” ( Id. at 523.) She also attached a six-page log detailing her numerous doctor appointments and attempted treatments. Rizzi’s application included two forms completed by Dr. Quan. The first was entitled “Attending Physician’s Statement of Di sability” and was dated August 2, 2005.

7 Benefit payments will terminate under the Plan in a variety of circumstances. Relevant here, they terminate when the empl oyee no longer satisfies the Plan’s definition of “disabled” and can perform the e ssential duties of her occupation. 8 Rizzi had previously applied for and r eceived short-term disability benefits under the terms of a separate plan. That plan an d those benefits are not relevant here.- 5 - (Appellant’s App. Vol. IV Rizzi Rec. at 522 .) In it, Dr. Quan pr escribed no lifting or carrying in the right arm or hand, no reaching or working overhead with her right arm, and no keyboard or repetitive hand motions involving the right wrist. However, he identified Rizzi as a suitable candidate for rehabilitation serv ices with a “job modification [involving] less computer keyboard use[,] . . . [less] re petitive hand motion, [and] less lifting and carrying in the right hand.” ( Id. at 522.) The second form was a Functional Assessment Tool 9 in which Quan noted Rizzi was incapable of performing full-time work. His hand-written notes concluded he di d not know when Rizzi would be able to return to work or what duties she would be able or un able to perform due to significant continuing “pain in the [right] shoulder, [ri ght] elbow, [right] wrist and neck.” ( Id. at 531.) Hartford began its preliminary examina tion of Rizzi’s claim. This included several conversations with Rizzi and her medi cal providers. In one conversation, Rizzi said she was “in pain all the time” and while sh e wanted to return to work, “she cannot work anymore.” (Appellant’s App., Vol. II Rizzi Rec. at 114.) She had enrolled in classes at a local community co llege but stated they were “not doing her any good.” ( Id. ) During another conversation, Rizzi reported “constant pain , which is sharp in quality”

9 Hartford sends this form to a claima nt’s treating physician. It requests information regarding the clai mant’s ability to return to full-time work, the doctor’s office notes, any diagnostic results, all phys ical exam findings, all physical therapy summaries and all referring physician consu ltation reports generate d since the beginning of the alleged disability. It asks what ac tivities the claimant is unable to perform and why, the duration for each continuing limitati on, the doctor’s trea tment plan, and an estimated date the claimant can resume work activities.- 6 - preventing her ability to functi on and do househol d chores. ( Id. at 109.) However, she was able to drive, shower, prepare meals, dress herself, and use a telephone with a headset. Hartford obtained Rizzi’s medical record s, including those from Dr. Irwin Isaacs, a pain specialist to whom Rizzi had been refe rred. It interviewed Dr. Isaacs’s nurse who confirmed Rizzi was being treated for Cervical Facet Syndrome. He reported that radio frequency neurotomy treatments significantly reduced Rizzi’s reports of pain. She received her third treatment on October 18, 20 05, and reported the ne xt day that she was “doing better, no problems.” (Appe llant’s App. Vol. II Rizzi R ec. at 106.) According to the nurse, Dr. Isaacs “expected that [Ri zzi] will have significant improvement of symptoms or may be symptom free upon next evaluation [on November 15, 2005].” ( Id. at 105.) Hartford’s internal review determined th at “[b]ased on Dr. Is aacs’s findings of Cervical Facet Syndrome, it is reasonable to support a functional impairment to [Rizzi’s] job duties” and recommended approval of Rizzi ’s claim. (Appellant’s App. Vol. II Rizzi Rec. at 104.) Because Dr. Isaacs believed Rizzi would be signifi cantly better by midNovember, the internal review also recommended contacting Dr. Issacs and Dr. Richard Dvorak 10 at that time to check on Rizzi’s condition. Hartford approved her application

10 It is unclear from the record when Rizz i first saw Dr. Dvorak or even why she began seeing him. In January 2006 she id entified him as her pr imary physician. Hartford’s notes, dated October 20, 2005, refl ect Rizzi had spoken with Dr. Dvorak about depression.- 7 - for disability payments on October 21, 2005. 11 On January 24, 2006, Hartfo rd conducted a follow-up interview with Rizzi to check on her condition and th e effectiveness of her treatments. She reported her condition had deteriorated. Her neck, sh oulder, right hand a nd wrist pains were consistently bad and acco mpanied by headaches. Middle ba ck pain had also developed. She reported her average pain leve l was an 8-10 on a scale of 1 to 10. 12 She required multiple medications. The pain reduced he r daily functions to the point she was homebound except for short excu rsions not exceeding one h our. Driving was nearly impossible because she could not turn her head and the medica tions made driving unsafe. She drove only to the store if necessary but was otherwise driven by others. She could not hold her neck up for more than one hour and did not walk her dog. Radio frequency neurotomy treatments continue d but they no longer relieve d her pain. Isaacs was no longer treating her; she only saw Dr. Dvorak. Rizzi believed she would never be able to work again. Concluding Rizzi’s “function is unclear and does not correlate with medical records received in file,” Hartford referred th e file to its Special Investigation Unit (SIU)

11 The plan had a six-month benefit waiting period. As a result, Rizzi’s benefits began on September 28, 2005, six months after her last day of work. 12 Rizzi’s self-reports of pain levels refer to a pain scale often used to establish the level of discomfort a patient is experiencing . In one example of this scale, the WongBaker Faces Pain Rating Scale, a response of 0 or 1 would indicate no pain, a 5 is more than a little pain, an 8 indicates a person “hurts a whole lot” and a 10 indicates it “hurts as much as you can imagine.” Donna Wong and Lucille Whaley, Clinical handbook of pediatric nursing (2nd edition) 373, C.V. Mo sby Company 1986 (1983), available at: http://painconsortium.ni h.gov/pain_scales/ Wong-Baker_Faces.pdf (last visited May 20, 2010).- 8 - to explore the validity of Rizz i’s statements. (Appellant’s App., Vol. III Rizzi Rec. at 413.) A SIU investigator followed Rizzi on February 7-8 and Ma rch 6-7 of 2006 and produced video, still photos, and a wr itten description of her activities. Rizzi was observed engaging in many of the day-to-day activities she was reportedly unable to do. She walked her dog multip le times, attended college classes (including a college writing co urse), ran errands, and drove herself between multiple locations while repeatedly away from her apartment for significa ntly more than an hour. On February 7, Rizzi was away from her apar tment for more than 3 hours; on March 6, 2006, it was nearly 5 hours; and on March 7, 2006, nearly 3.5 hours. The investigator described Rizzi’s actions on each of those days in detail and noted she “appeared to ambulate in a normal manner” and did not exhi bit any outward manifestations of pain. (Appellant’s App. Vol. IV Rizzi Rec. at 569, 583, 585.) She ne ver received physical assistance from another person or appeared lim ited in her abilities. Th e investigation also included Rizzi’s school transcript which sh owed she had earned high marks during a number of previous classes. However, Rizz i had never registered with the college’s Special Services Office to receive spec ial assistance in pursuing her studies. The video surveillance shows approxima tely 32 minutes of the four-day surveillance. It records Rizzi getting in and out of her car, driving with both hands, walking to and from classes (including up a nd down multiple stairs), walking her dog and bending 90 degrees from the waist to gather its feces with a bag in her right hand, eating a sandwich and french fries w ith both hands, and clasping various items (including individual napkins, food, drin ks, keys, and paper work) with her right hand. Her facial- 9 - expressions and actions reveal no evidence of pain. Rizzi did wear a brace on her right wrist during some, but not all of the peri od she was under surv eillance. But her movements, including her gait while walking and na vigating stairs, her ability to grasp and manipulate items of various weights and sizes in her right hand, drive with both hands (together and individually), and range of right arm movement, all appear normal. Another investigator met with Rizzi at her home on April 25, 2006, to discuss her ongoing claim for benefits. She was not imme diately told of the discrepancies between her reported abilities and the surveillance evid ence nor was she show n the video. She was first asked to describe her physical cond ition and abilities. To this end, she and the investigator formulated a written statement. It notes Rizzi is only able to walk a couple blocks; travelling this distance takes approx imately 15-20 minutes because her gait is slow due to pain. After a couple blocks, her pain increases to an 8 or 9 and a rest must be taken. Standing is limited to 15 minutes; sh e must then sit because of a headache or pain levels which increase to 8 or 9. She is “una ble to carry anything” w ith her right hand or arm and she can lift only 10 pounds with her left arm. (Appellant’s App. Vol. IV Rizzi Rec. at 600.) Pain levels increase to 8, 9, or even 10 when carrying anything with her left arm. Managing stairs is possible (descending is more difficult than ascending) but pain levels increase to 8, 9 and even 10. Driv ing is possible for approximately 20 minutes but she is unable to turn her head or use both ha nds on the steering wheel. Her right hand has no grip strength and she experiences numbness in the ends of the fingers. On a good day, her average pain level is 5. Rizzi was gi ven the chance to make changes, deletions, modifications or additions to the statement as she felt necessary. She attested it was true- 10 - and accurate. The interview lasted 3.5 hours. Rizzi wa s given the opportunity to rest whenever needed. Throughout th e interview, Rizzi “appeared slow and sluggish,” displayed pain indicators by “moaning and crying during the interview,” “complaine d of being in pain on her right side,” “moved her right arm a nd hand very little,” and displayed “cognitive and concentration difficulties” including “trouble at times fo rmulating her thoughts” or “trouble concentrating due to th e pain that she was in.” (App ellant’s App., Vol. IV Rizzi Rec. at 596.) The investigator noticed Rizzi “got up and down, from seated to a standing position, approximately five times . . . without any difficulty.” ( Id. ) After the joint statement was completed, the investigator told her of the surveillance and played the video. Rizz i responded “she was readily capable of performing those activities documented on film , and this represented her above normal level of functionality.” (Appellant’s App. Vol. IV Rizzi Rec. at 595.) Hartford also sent a copy of the video to Dr. Dvorak for revi ew. He responded, “I have seen nothing on your tapes that change the clinical status of Ms. Rizzi . . . . I suggest an occupational medicine evaluation by someone who is not associated with your company . . . .” (Appellant’s App., Vol. III Rizzi Rec. at 338.) Hartford did seek an evaluation of Ri zzi’s medical file by an independent consultant. It forwarded the file to the Medical Advisory Group LLC (MAG) for review by one of MAG’s physicians. M AG assigned the file to Dr. F. B. Dibble. He reviewed the medical records, examination notes from Dr s. Dvorak, Issacs, Quan and Hui, Rizzi’s accounts of her pain and the surveillance evidence. Dr. Dibble also conducted a- 11 - telephone interview with Dr. Dvorak. Dr. D vorak said he had not seen any physical evidence of muscular atrophy, 13 weakness, discoordination, complex regional pain syndrome, or carpal tunnel syndrome in Rizzi. Instead, he confirmed his diagnoses were based on Rizzi’s self-reported pain and her self-reported lim itation of activities. He had not undertaken any obj ective assessment of her physic al capabilities and he could not define her abilities to work w ithout a more formal occupati onal therapy appraisal. Dr. Dibble then compiled his report to Hartford which noted Rizzi “has been inconsistent in her descripti on of her pain complaints and their duration, as well as her physical capabilities . . . .” (Appellant’s App. , Vol. III Rizzi Rec. at 329.) He concluded “Rizzi is not restricted from performing full- time work. There is no evidence of any specific physical impairment or limitation th at should require any particular restriction relative to workplace activities.” ( Id. ) Hartford terminated Rizzi’s disability be nefits on June 7, 2006, because she “no longer satisf[ied] the definition of disability according to th e policy.” (Appellant’s App., Vol. II Rizzi Rec. at 133.) Its termination letter cited the Plan’s definition of “Disability or Disabled” and identified multiple sources of information it relied upon in determining

13 Muscular atrophy is a wasting or loss of muscle tissue due to disuse or reduced use. See http://www.nlm.nih.gov /medlineplus/ency/a rticle/003188.htm (last visited May 20, 2010). In respon se to the video surveillance, Ri zzi noted she does “some home exercises that I have gotten from physical therapy which help me keep my muscle becoming atrophy.” (Appellant ’s App., Vol. IV Rizzi Rec. at 594.) There is no other evidence in the record to indicate Rizzi undertakes a ny form of home exercise, any description of these exercises, or how they would stop atrophy in muscles she reportedly cannot use. It is particular ly notable that Dr. Dvorak di d not mention these exercises when repeatedly asked about Rizzi’s mu scular atrophy and muscular abilities.- 12 - she was no longer disabled. These sources included: Dr. Quan’s Attending Physician statement, a telephone interview with Rizzi, her job description, video surveillance, information from her college, th e statement she compiled with the investigator on April 25, 2006, medical records an d other information provided by Dr. Dvorak, and the independent record reviews performed by Dr. Dibble. Ha rtford acknow ledged Dr. Quan’s observations that Rizzi was unable to carry anything or reach with her right arm or hand and Rizzi’s statements indicating constant pain and the inability to use her right hand. It reviewed in detail Rizzi’s persona l complaints of pain and limitation and Dr. Dvorak’s medical diagnoses, re sponse to the surveillance, a nd statements to Dr. Dibble. However, it also noted her job description “requires no lifting or carrying, continuous sitting, occasional walking, no balancing, st ooping, kneeling, crouch ing, crawling, fine manipulation or grasping.” ( Id. at 134.) The letter also discussed the surveillance evidence and Dr. Dibble’s obj ective review of her file. Ultimately, it concluded: [T]he medical, investigative, and voca tional information on file no longer supports that you are totally disabled from your Occupation. While we respect Dr. Dvorak’s opinion that you are unable to work and would require an occupational evaluation to determ ine capabilities for employment, the information currently on file shows a level of function that would be consistent with your ability to return to your own oc cupation. In addition, as concluded by an Independent Reco rd Review, the medical information on file does not show any evidence wa rranting any physical limitations. As a result, you no longer satisfy the defi nition of disability according to the policy and your benefits have been terminated. ( Id. at 136.) Rizzi administratively appealed this denial of benefits to Hartford. She challenged Hartford’s use of a non-examining physici an (Dr. Dibble), its conclusion she could- 13 - continue her usual oc cupation, the relevancy of the su rveillance evidence and school records, and Hartford’s failure to properly develop the record and document the extent of her limitations. She also supp lemented the record with additional information which included a “Medical Source Stat ement Concerning the Nature and Severity of [Rizzi’s] Physical Impairment.” (Appellant’s App. Vo l. III Rizzi Rec. at 280.) This form, which was created by Rizzi’s attorney and completed by Dr. Dvorak, stated Rizzi was unable to perform sustained sedentary work on a regu lar basis. On November 15, Hartford informed Rizzi it had received her appeal and it would respond w ithin 45 days as required by the Employment Retirement In come Security Act of 1974 (ERISA). In reviewing her appeal, Hartford observe d that Dr. Dvorak’s notes say Rizzi was scheduled to undergo a neurology consultati on and nerve conduction study in June 2006. Because the file contained no record of these te sts, Hartford asked Ri zzi’s attorney for the results of these procedures. Ri zzi’s attorney agreed to provide this. Hartford received the additional medical information on December 11, 2006, but it did no t include anything relating to the neurology cons ultation or nerve conduction st udy. Hartford immediately contacted Rizzi’s attorney who assured Hart ford all available medical files had been provided. Because the appeal file had been supplemented with pe rtinent information, Hartford determined Rizzi’s appeal was perfected on Dece mber 11, 2006, and notified her a determination would be provided within 45 days. 14

14 The December 11, 2006 letter does not re ference ERISA. It informed Rizzi the receipt of her additional medical information is considered perfecting her appeal and that Hartford has 45 days from the date the additional information was received to render its decision.- 14 - Hartford arranged for a second independent medical review of Rizzi’s medical history with University Disability Consor tium (UDC). A UDC consultant, Dr. Jerome Siegel, reviewed Rizzi’s entire file (with the exception of Dr. Dibble’s report). Dr. Siegel spoke at length with Dr. Dvor ak on multiple occasions, reviewed all of Rizzi’s medical records, and the surveillance evidence. He issued a report on January 16, 2007. It summarized the conversations with Dr. Dvorak and the medical reco rds in detail. Dr. Dvorak again acknowledged Rizzi manifested no physical symptoms typical to complex regional pain syndrome 15 (such as muscle atrophy, change s in skin or nail coloration, or hair loss), and objective medical tests revealed no obvious reason for her reported pain. Nonetheless, Dr. Dvorak confirmed his “overa ll diagnoses were chronic daily headaches, anxiety/depression, occipital neuralgia, 16 and right hand pain.” (Appellant’s App., Vol. III Rizzi Rec. at 204.) He said Rizzi “was having financial problems[,] . . . her disability coverage had been denied . . . [and] [t]here was difficulty in getting her to receive [multiple medications] . . . . [She also had] significant psychologi cal overlay because of

15 This is “an uncommon, chronic condition that usually affects [an] arm or leg” and is “marked by inte nse burning or aching pain.” Ma yo Clinic Staff, Definition of “Complex regional pain syndrome,” Mar. 31, 2009, http://www.mayoclinic.com/health/compl ex-regional-pain-syndrome/DS00265 (last visited May 20, 2010). 16 “Occipital neuralgia is a distinct type of headache characterized by piercing, throbbing, or electric-shock-lik e chronic pain in the upper neck, back of the head, and behind the ears, usually on one side of the head.” National Institute of Neurological Disorders and Stroke, Occipital Neuralgia In formation Page, last updated Dec. 14, 2009, http://www.ninds.nih.gov/disorders/occi pitalneuralgia/occ ipitalneuralgia.htm (last visited May 20, 2010). The pain may be caused by i rritation or injury to the nerves. In many cases, however, no cause can be found. It is not a life-threatening disease and many individuals improve with treatments involvi ng anti-inflammatory medications, muscle relaxants, heat, and rest. See id.- 15 - her ongoing pain.” ( Id. at 205.) The doctors also disc ussed the surveillance evidence. Dr. Dvorak reiterated the video did not change his opinion that Rizzi’s pain was real but admitted he had not addressed her ability to resume sedentary or administrative work. For Dr. Siegel, the lack of objective medical evidence coupled with the surveillance evidence rais ed questions concerning Rizzi’s probity when self-reporting the level of her pain and functionality of her ri ght arm. He determined some physical restrictions may be appropriate (includi ng alternating sitting and standing, limiting repetitive use of her upper right arm, and limit ed typing) but “the information presented does not substantiate why Ms. Rizzi could no t return to sedentary to light physical demand work activities as would be expected as part of her regular work activities at Sprint.” (Appellant’s App., Vol. III Rizzi Rec. at 213.) Hartford considered this report together with the entire admini strative record and denied Ri zzi’s appeal on January 18, 2007. It concluded: Based on the totality of the informa tion presented that included Appeal’s independent review of the evidence pr esented, the review and opinion of the Medical Consultant’s of whose opini on’s [sic] and expertise we further relied on, Ms. Rizzi’s own treating physician’s opinion, the claimant’s selfreported and observed activ ities of daily living, the medical evidence is not commensurate with findings on physica l/clinical examination that would reasonably be expected to cause f unctional restrictions/limitations that would preclude Ms. Rizzi from perform ing her regular occupational work activity. While we do not disagree that she may have symptoms and a medical condition that presents some functional restrictions/limitations, again, the medical findings of fact do not provide an explanation for her complaints and further that she woul d be precluded from performing one or more of the essential duties of her occupation ( Id. at 224.) Upon request, Hartford forwarde d Dr. Siegel’s report to Rizzi but refused- 16 - her attempt to supplement the reco rd with a response by Dr. Dvorak. 17 Rizzi sought review of Hartford’s denial of long-term disability benefits in state court. Hartford removed the case to federa l court. Rizzi moved for judgment on the administrative record and Hartford counte red with a motion for a bench trial on the papers (which the court treated as a motion fo r judgment on the pleadings). The district court granted Hartford’s motion and denied Rizzi’s.
II. DISCUSSION Rizzi contends the district court erred in granting Hartford’s motion for judgment on the pleadings. She argues Hartford’s denial of benefits was arbitrary and capricious because of its: (1) use of biased outsid e consultants; (2) reliance on surveillance evidence; (3) disregard of her subjective complaints of pain; (4) failure to consider her anxiety and depression as a separate cause of disability; and (5) violations of controlling regulations. She also argues these individual issues collectively demonstrated Hartford was blinded by a conflict of interest. She argue s the district court erre d in the standard of review it applied to Hartford’s decision. “The district court’s determination of whether an ERISA benefits decision is arbitrary and capricious is a legal conclusion subject to de novo review.” Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10t h Cir. 2002). On appeal, we review the plan administrator’s decision to deny benefits to a claimant, not the district court’s ruling. Holcomb v. Unum Life Ins. Co. of Am. , 578 F.3d 1187, 1192 (1 0th Cir. 2009). Because the Plan affords Hartford the “au thority to determine eligibility for benefits or to construe

17 The district court also refused to consider this information.- 17 - the terms of the [P]lan, we review the decision for abuse of discretion.” Id. (quotations omitted). In the ERISA context, the abuse of disc retion and the arbitrary and capricious standards of review are interchangeable. See Weber v. Gen. Elec. Group Life Assurance Co., 541 F.3d 1002, 1010 n.10 (10th Cir. 2008). We will uphold an administrator’s decision “so long as it is predicated on a reasoned basis.” Adamson v. Unum Life Ins. Co of Am., 455 F.3d 1209, 1212 (10th Cir. 2006). “[ T]here is no requirement that the basis relied upon be the only logical one or even th e superlative one . . . . [O]ur review inquires whether the administrato r’s decision resides somewhere on a continuum of reasonableness -- even if on the low end.” Id. (quotations omitted). We review Rizzi’s individual complaints under this standard. Rizzi also argues that the individual issu es she identifies demonstrate Hartford’s decision should be entitled to less deference becau se its serves as both plan administrator and payee of benefits. It is not an uncommon scenario where “the entity that administers [an ERISA] plan, such as an employer or an insurance company, both determines whether an employee is eligible for benefits and pays benefits out of its own pocket.” Metropolitan Life Ins. Co. v. Glenn , 128 S. Ct. 2343, 2346 (20 08). In such circumstances there is an inherent conflict of interest. Id. This conflict of interest is “a factor” which “should prove more important . . . where circ umstances suggest a higher likelihood that it affected the benefits decision.” Id. at 2351. As the Supreme Court subsequently explained, Glenn “held that, when the terms of a plan grant discretionary authority to the plan administrator, a deferential standard of review remains appropriate even in the face- 18 - of a conflict.” Conkright v. Frommert , 130 S. Ct. 1640, 1646 (20 10). Thus the conflict is considered as one of many case-specifi c factors in determining whether the administrator’s decision was an abuse of discretion. Glenn , 128 S. Ct. at 2350; Holcomb, 578 F.3d at 1192. “The importance we attach to the existence of a conflict of interest is proportionate to the likelihood that the c onflict affected the benefits decision.” Graham v. Hartford Life & Acc. Ins. Co. , 589 F.3d 1345, 1 358 (10th Cir. 2009), cert. denied , No. 09-1169), --- S. Ct. ---, 78 USLW 3581 (U.S. June 1, 2010). The conflic t is entitled to greater weight “where circumstances suggest a higher likelihood that it affected the benefits decision” and less weight where the ad ministrator has minimized the risk that the conflict would impact the benefits decision. Glenn, 128 S. Ct. at 2351. Rizzi claims the individual improprieties, individually and collectively, illustrate how Hartford’s inherent conflict resulted in an arbitrary and ca pricious benefits decision. We disagree.
A. Bias of Medical Consultants Rizzi claims the frequency with which Hart ford engages the services of MAG and UDC provide these companies with “an incentive to make a finding of ‘not disabled’ in order to save their employers money and to preserve their own consulting arrangements.” Black & Decker Disability Plan v. Nord , 538 U.S. 822, 832 (2003) (quotations omitted). 18 Therefore, we should ac cord little, if any, weight to their doctors’ opinions.

18 Rizzi fails to note the Nord case considered a wholly separate question from the one raised in this case -- whet her a personal physician is entitle d to greater deference than a non-treating physician; the Court concluded he is not. Nord , 538 U.S. 831

. Nonetheless, the Court even-handedly c ountered the quote relied upon by Rizzi,- 19 - To support her allegations of bias by UDC and MAG physicians, Rizzi relies on Caplan v. CNA Financial Corp., et al. , 544 F. Supp.2d 984 (N.D. Cal. 2008). 19
In Caplan , the plaintiff applied for long-term benefits pursua nt to a benefits plan administered by Hartford (who was also a na med defendant in the case). He had suffered a lumbar spine injury and an injury to the ulnar nerv e in his right arm in 1998. Id. at 986. In 1999 or early 2000 he began working fo r CNA and in 2003 injured his cervical spine and began experiencing pr oblems with his hands. Id. After attempting several methods of accommodation and engaging in numerous consultations with physicians, Caplan applied for long-term disability benefits. Id. at 987. Hartford denied his claim and subsequent appeal based solely on a UDC physician’s opinions. Id. at 989. In seeking to overturn Hartford’s denial of benefits, Ca plan claimed not only that the relationship between Hartford and the UDC physicia n called into question the physician’s trustworthiness, but also that the physicia n’s medical opinion was itself unreasonable. To support his argument, Caplan prov ided admissible evidence showing UDC obtained nearly seventy-five percent of its revenue from Hartford ’s claim reviews and had reduced its hourly rates for Hartford-relate d work from $300 an hour to $225 as part

recognizing a claimant’s treating physic ian also has the potential for bias. Id. at 832 (“And if a consultant engaged by a plan may have an ‘incentive’ to make a finding of ‘not disabled,’ so a treating physician, in a close case, may favor a finding of ‘disabled.’”). 19 Before the district court, Rizzi cite d 41 cases where Hartford reportedly employed the services of MAG or UDC arguing this “shows a strong and ongoing relationship between Hartford and each medical c onsultant.” (Appellant’s App., Vol. I at 40.) The cases are currently between three and eight years old and are not cited on appeal. We do not consider them.- 20 - of a “volume discount type arrangement.” Id. UDC’s gross revenue had increased between 50 and 100 percent afte r it signed its contract to provide services to Hartford; Hartford had paid UDC more than $13 million between 2 002 and 2008 for consulting services. Id. He also presented evidence that th e physician who reviewed his claim had performed chart reviews for UD C “producing 217 evaluations for 202 Hartford claimants between January 1, 2005, and September 30, 2007 . . . . [and] of these 202 claimants, he found that 193 of them were capable of working full-time in some type of position under appropriate restrictions.” Id. at 990. The court found Caplan had shown “UDC ha [d] an incentive to provide [Hartford] with reports that will increase the chances that Hartfo rd will return to UD C in the future.” Id. at 991. This bias led the court to view Hartford’s benefit decisions “with commensurate skepticism” and caused it “s erious doubt [as to] the neutrality of [Hartford’s] decision-making process.” Id. at 992. The court also expressed significant concern over the unreasonableness of the re viewing physician’s conclusions and his personal history with Hartford . Rizzi demands similar skep ticism of Drs. Dibble and Siegel because Hartford regularly contracts with their employers. While we do not quarrel with the result reached by the Ca lifornia district court, we cannot presume bias on the part of UDC ba sed upon facts presented to another court more than two years ago (much less on the part of MAG which was not involved in Caplan ). 20 Rizzi identifies no admissible evidence of a significant financial incentive by

20 These facts are not in the record and Ri zzi has not asked us to take judicial notice of them as evidence of the re lationship between Hartford and UDC. Even if- 21 - MAG or UDC to decide claims in Hartford’s favor. Even more telling, Rizzi presents no evidence of an inherent bias or unreasonabl eness by Dr. Dibble or Dr. Siegel. The skepticism expressed in Caplan was due in large part to the physician’s individual history with Hartford and the unreasonableness of his conclusions. That phy sician “discounted a wealth of evidence” supporting Caplan’s clai m including the results of “multiple MRIs” and objective functional capacity tests. Id. at 992. General accusations of bias against Dr. Di bble and Dr. Siegel do not provide a reason to doubt what otherwise appear to be competent and reasonable opinions. See Sweatman v. Commercial Union Ins. Co. , 39 F.3d 594, 601 n.14 (5th Cir. 1994) (rejecting a similar sweeping argument of bias based so lely upon a consultant’s employment with an agency which contracts regul arly with a plan administrator). Drs. Dibble and Siegel independently noted Rizzi’s numerous medi cal examinations failed to identify any objective signs of disability -– a conclusion Rizzi does not challenge. Rather, Rizzi’s disability claim (and her physicians’ diagno ses) relied solely upon her subjective complaints of pain. The su rveillance evidence showed Ri zzi performing a variety of daily activities for significant periods of time w ithout any indications of pain, distress, or difficulty. Drs. Dibble and Siegel each c onsidered and addresse d all subjective and
requested our ability to take judicial notice of the claimed facts is questionable. “Judicial notice is appropriate where a matter is veri fiable with certainty. It replaces the evidentiary procedure that wo uld otherwise be necessary to establish adjudicative facts that are generally known or capable of accurate and ready determination by resort to reliable sources.” York v. Am. Tel. & Tel. Co. , 95 F.3d 948, 958 (10th Cir. 1996) (citation and quotations omitted). Thes e facts do not appear to be readily verifiable by public records or reliable sources, particularly b ecause much may have changed in the time since they were admi tted as evidence.- 22 - objective evidence in the record and separately arrived at the same conclusion. Hartford did not abuse its discretion in relying on their opinions simp ly because they are employed by MAG and UDC, respectively. Our cases recognize the hiring of independ ent physicians (defining “independent” as not including “[a plan administrator’s] own on-site physicians and nurses”) to review a medical file actually decreases the importance of a plan administrator’s inherent conflict of interest because they are not dir ectly employed by th e administrator. Holcomb , 578 F.3d at 1193; see, e.g., Loughray v. Har tford Group Life Ins. Co. , No. 07-1189, 2010 WL 618032, at *9 (10th Cir. Feb. 23, 2010) (unpub lished) (no abuse of discretion in relying on one outside physician against whom no evidence was presented undermining his independence). 21 This is not to say that any hiring of an outside physician to review a claim of disability will automatic ally entitle a plan administra tor to greater deference. Rizzi presented no evidence to suggest the me dical opinions of Drs. Dibble or Siegel were suspect or that a significant fiscal re lationship existed between Hartford and the doctors or their employers. We have no r eason to depart from our previous holdings. Hartford’s reliance on independent physicians to review her benefits claim was not unreasonable or an abuse of its discretion.
B. Reliance on surv eillance evidence Rizzi also contends Hartfo rd’s “surreptitious surveilla nce is [not] of any value

21 Unpublished opinions are not binding precedent. 10th Cir. R. 32.1(A). We mention Loughray and other unpublished cases as we would any other non-binding source, persuasive because of its reasoned analysis.- 23 - when it fails to demons trate any ability to perform work activity on a continuous basis.” (Appellant’s Opening Br. at 38.) She c ites three cases to support this argument: Morgan v. Unum Life Ins. Co. of Am. , 346 F.3d 1173, 1178 (8th Cir. 2003); Osbun v. Auburn Foundry, Inc., 293 F.Supp.2d 863, 871 (N.D. Ind. 2003); and Holoubek v. Unum Life Ins. Co. of Am. , 2006 WL 2434991 at *2-3 (W.D. Wis. Aug. 22, 2006 ). None of these cases offer the support Rizzi seeks. In each case, the plan administrators violated the terms of their plan or disregarded me dical evidence and relied solely on surveillance evidence to support the denial of benefits.
In Morgan , the plan administrator initially paid long-term benefits based in large part on cognitive disabilities supported by medical evidence. The administrator ultimately terminated benefits after an in-hou se physician observed surveillance evidence showing the claimant exercisi ng and engagi ng in routine daily activities. However, the administrator had known he enga ged in these activities when ap proving his initial claim. 346 F.3d at 1177-78. The Ei ghth Circuit said th e surveillance evidence “revealed nothing new and was not substantial evidence suppo rting UNUM’s decision to discontinue Morgan’s disability benefit.” Id. at 1178. Furthermore, the opinion of the plan administrator’s doctor, which was based on the surveillance eviden ce, “was at best tangentially relevant to Morgan’s ci rcumstance of being disabled by the cognitive deficits ” he suffered due to his medical condition. Id. at 1178 (emphasis added).
In Osbun , the court rejected the administrator’s “decision to terminate benefits . . . with no supporting medical evidence .” 293 F.Supp.2d at 870 (emphasis added). More specifically, the denial of benefits concluded- 24 - a mentally retarded, illiterate, partially blind, partially deaf, arthritic man with arteriosclerotic heart disease, thyroid insufficiency, and high blood pressure is capable of gainful empl oyment, simply because he performed 1.5 hours of light physical tasks over th e course of two days, and in spite of three medical reports finding total disa bility. This conclusion is downright unreasonable. Id. at 871 (quotations omitted). The third case, Holoubek, involved a termination of benefits after surveillance observed the claimant “engaged in numerous activities whic h were inconsistent with his reported activity level and limitations

. ” 2006 WL 2434991 at *11. On review, the court acknowledged the surveillance created disparitie s between the record and the claimant’s reported abilities. However, it ultimately rejected the administrator’s denial of benefits on narrow grounds -- the reco rd did not include any specific finding that the claimant “could perform the material and substantial duties of his occupation” as required under the terms of the plan. Id. at *12 (emphasis added). Rizzi alleges the surveillance showing her ability to manage some daily tasks does not demonstrate she can manage a full-time j ob. She argues “there is no requirement on the disabled to become inert in order to av oid having their disab ility benefits denied,” quoting Crespo v. Unum Life Ins. Co. of Am., 294 F.Supp.2d 980, 996 (N.D. Ill. 2003). While this is true, Hartford relied on more than surveillance evidence in denying Rizzi’s claim; it also considered Rizzi’s subjective co mplaints of pain, medical opinions of Drs. Dibble and Siegel (who spoke with Dr. Dvor ak on multiple occasions ), and the results of objective medical tests in her f ile. For example, Dr. Siegel acknowledged in writing that “the videotape surveillance does not tell the entir e story . . . .” (Appellant’s App. Vol. III- 25 - Rizzi Rec. at 242.) He noted Rizzi exhibits “no indication . . . of diffuse muscle atrophy or wasting, shiny or atrophic skin, allodynia, problems with her skin and nails, abnormal temperature or color changes in her right uppe r extremity, or marked pain behavior such that she is unable to do gripping, grasping , or using her right upper extremity.” ( Id. at 239.) This corresponded with Dr. Dibble’s observation that there was “no evidence of any muscular atrophy, reflex impairment, im paired range of motion of her joints, or peripheral circulation . . . .” ( Id. at 329.) In rejecting Rizzi’s request for reconsideration, Hartford “considered the repor ted symptoms and to what extent the findings on physical examination and testing results confirm the sy mptoms.” (Appellant’s App., Vol. II Rizzi Rec. at 222.) Of course Hartford gave some weight to the surveillance evid ence. But it “also considered Ms. Rizzi’s self-reported and observed activities of daily living which provide[d] a picture of function in spite of any medical condition(s) . . . . [and also considered] the physical demands of he r occupational work activity . . .” ( Id. at 222-23.) As discussed above, it also considered the medical opinions of Dr s. Dvorack, Dibble and Siegel. Reliance on surveillance evidence in conjunction with medical evidence is not improper. Rizzi identifies no case law and we have found none which holds the denial of a disability claim based on su rveillance evidence in conjunc tion with objective medical evidence or opinions of independent physicians is unreasonable or an abuse of discretion.
C. Disregard of Rizzi’s subjective complaints of pain Rizzi also alleges Hartford failed to give proper consideration to her subjective reports of pain. She compares her diagnosis of occipital neuralgia to cases involving- 26 - fibromyalgia for which the claimant’s subj ective, uncorroborated complaints of pain constitute the only evidence of the ailment’s severity. See Welch v. Unum Life Ins. Co. of
Am. , 382 F.3d 1078, 1087 (10th Cir. 2004) (noting “fibromyal gia presents a conundrum for insurers and courts evaluating disability claims” because, among other things, no objective test exists to identif y the disease) (quotations omitte d). In such cases, a plan administrator’s medical inquiry naturally in volves questions regarding the claimant’s credibility. See Jordan v. Northrop Grum man Corp. Welfare Benefit Plan, 370 F.3d 869, 878 (9th Cir. 2004) (“[T]he patient’s pain reports for their diagnoses . . . cannot be unchallengeable. That would shift the disc retion from the administrator, as the plan requires, to the physicians c hosen by the applicant, who depe nd for their diagnoses on the applicant’s reports to them of pain.”) overruled on other grounds by , Abatie v. Alta Health & Life Ins. Co. , 458 F.3d 955, 969 (9th Cir. 2006) (en banc). In considering Rizzi’s complaints of di sabling pain, the lack of any tangible evidence of it is important. Objective medical testing reve aled no cause for her condition or confirmation of her limitations. Her own tr eating physicians indicat ed Rizzi should be functioning at a higher level. Dr. Isaacs pred icted a nearly pain-fre e existence following Rizzi’s subjective reports of reduced pain after radio frequency neurotomy treatments. Dr. Dvorak confirmed to Drs. Dibble and Siegel he saw no physical symptoms of decreased function in Rizzi. And no other tr eating physicians documented any physical symptoms (like muscle atroph y, hair loss or nail discoloration) associated with an inability to mobilize or use her extremities. Hartford then looked to the surveillance evidence in an attempt to corroborate- 27 - Rizzi’s complaints. Bu t surveillance showed Rizzi functi oning with no visible signs of disabling pain. We find it noteworthy the surv eillance occurred for tw o days in February and two days in March. Her capability of performing significant activity without indication of pain on separa te occasions decreases the lik elihood of coincidence. Given the opportunity to re spond to this evidence, Ri zzi provided no tangible support of her claim -- no neurological st udy, no additional tests, and no supporting documentation of witnesses to her physical li mitations. A plan administrator need not ignore reliable medical eviden ce in deference to subjective reports; nor is it unreasonable to expect some supporting evidence to buttress a claim of disability. See Holcomb , 578 F.3d 1194 (no abuse of discretion when inde pendent medical evidence indicated claimant “was fit for multiple gainful occupations that reasonably matched her education, training, and experience”); Meraou v. Williams Co. Long Term Disability Plan , 221 Fed. App. 696, 706 (10th Cir. 2007) (unpublished) (rejec ting wholly subjective complaints of pain without further medical eviden ce in concluding denial of ERISA benefits was not unreasonable); Frizzell v. Shalala , 37 F.3d 1509, 1994 WL 562 026 at *3 (10th Cir. Oct. 13, 1994) (unpublished) (where none of claimant’s doctors stated her fibromyalgia was disabling, the denial of ERISA benefits was not unreasonable). Hart ford’s consideration of the surveillance eviden ce was not unreasonable.
1. Failure to consider anxiety and depre ssion as a separate cause of disability Rizzi argues Hartford failed in its duty to consider the possibility that anxiety and depression made her unable to work. For support, she cites Gaither v. Aetna Life Ins.
Co. , 394 F.3d 792 (10t h Cir. 2004). In Gaither we noted a plan administrator “cannot- 28 - shut their eyes to readily av ailable information when the ev idence in the re cord suggests the information might confirm the beneficiary’s theory of entitlement and when [the administrator has] little or no evidence in the record to refute that theory.” Id. at 807 (emphasis added). An administrator may ha ve a duty to independently request more information from the clai mant if the “information is need ed to make a reasoned decision .
. . .” Id. (quoting Gilbertson v. Allied Signal, Inc. , 328 F. 3d 625, 635 (10th Cir. 2003)). However, it has no duty to “pore over the record for possible ba ses for disability that the claimant has not explicitly argued, or cons ider whether further inquiry might unearth additional evidence when the evid ence in the record is suffici ent to resolve the claim one way or the other.” Id. While Rizzi’s theory of entitlement is not limited solely to her initial application for benefits, it provides the clearest statemen t of her alleged qualification for disability payments. Specifically, she was “unable to pe rform [her] job duties due to extreme pain [and] discomfort. Extreme pain and not be ing able to use [her] right extremities properly.” (Appellant’s App., Vol. IV Ri zzi Rec. at 518.) She later explains her diagnosis is myofascial pain syndrome. Her six-page log of symptoms, doctor appointments, and other inform ation did not suggest depressi on, anxiety, or any other psychological conditio n made her unable to work. On e sentence in her log mentioned depression; it said “Dr. Quan felt I was very depressed because of my disability and prescribed [medication].” ( Id . at 529 (emphasis added).) Depression was not raised by Rizzi until he r administrative appeal, when she said she “became and continue[s] to be disabled becau se of . . . anxiety and depression . . . .”- 29 - (Appellant’s App. Vol. III Rizzi Rec. at 271.) Rizzi argues Dr. Dvorak repeatedly noted she was depressed and Hartford should have investigated it further. Dr. Dvorak noted Rizzi was “just very frustrated that she is no[t] able to ge t back to work” ( id. at 403 (March 2006)); she “remains extremely frustra ted with this ongoing pain and the inability to get a firm diagnosis and to get better” ( id. at 314) (May 2006)); and she “continue[s] to have a significant amount of depression” an d needs to have her Cymbalta prescription increased “for pain modification . . . [and] depression” ( id. at 265 (July 2006)). The most extensive treatment notes from Dr. Dvorak relating to depression are from August 2006 where he indicated anxiety and depression were secondary diagnoses to her pain issues. He explained Rizzi was having “significant psychological overlay . . . because of the ongoing pain” and was distra ught because insurance no longer covered particular medications. ( Id. at 258.) In October 2006, Dr. Dvorak’s notes indicate Rizzi was no longer taking Cymbalta because she “felt more depressed on it.” ( Id. at 256.) At no time did Dr. Dvorak’s notes reflect that her de pression was debilitating or a separate issue worthy of consideration. Rizzi also contends her April 25, 2006 , statement of abilities written with the investigator identifies symptoms of depre ssion which Hartford ignored. The statement says she cannot concentrate and has headaches , fatigue, and insomnia. More specifically, Rizzi states she is “not able to concentrate because of the pain and headaches ” and is “not able to sleep well because of the pain . . . [and] feel[s] fatigued during the day.” (Appellant’s App. Vol. III Rizzi Rec. at 377 (emphasis added).) No one disputes Rizzi was depressed because of her issues with pain. But the- 30 - statements noting this fact in the record are equally as im portant for what they do not say— that she could not work because of her depression. At one point, Dr. Quan said Rizzi’s psychiatric state is “[e]ssentially go od functioning in all areas. Occupationally and socially effective.” (Appellant’s App. Vol. IV Rizzi Rec. at 522.) Dr. Dvorak repeatedly and explic itly identified anxiety or depression as a secondary diagnosis caused by her financial instability and pain. Even the statements in the April 25 report do not indicate Rizzi was unable to work because of these issues or that they were worthy of investigation. Our focus in Gaither limited the administrator’s duty to investigate to the issues identified in “the claim” or “the be neficiary’s theory of entitlement.” Gaither , 394 F.3d at 807. Hartford is not exp ected to conceive, consider, and investigate every possible theory of entitlement for Rizzi; it must only examine th e theory (or theori es) she asserts. Because Rizzi never claimed her anxiety or depression made her unable to function within her job separate from the primary dia gnosis of pain, Hartfo rd did not abuse its discretion in failing to create that theory for her.
2. Alleged Regulatory Violations Finally, Rizzi alleges Hartford’s bias is demonstrated by its violations of ERISA regulations. Specifically, she alleges viola tions of 29 CFR § 2 560.503-1(h)(2)(ii)-(iv) (opportunity to comment and disclosure of documents) 22 and 29 C.F.R. § 2650.503-

22 29 CFR § 2560.503-1(h)(2)(ii)-(iv) requires the administrator to: (ii) Provide claimants the opport unity to submit written comments, documents, records, and other informati on relating to the claim for benefits;- 31 - 1(g)(i)-(ii) (requiring administrator provide a claimant with the sp ecific reasons for the denial of benefits and the specific plan pr ovisions upon which the denial was based). 23 These arguments are without merit. First, Hartford clearly identified the specific

(iii) Provide that a claimant shall be provided, upon re quest and free of charge, reasonable access to, and copi es of, all documents, records, and other information relevant to the clai mant’s claim for benefits. Whether a document, record, or other information is relevant to a claim for benefits shall be determined by reference to pa ragraph (m)(8) of this section; [and] (iv) Provide for a review that takes into account all comments, documents, records, and other information subm itted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. “Documents” as used in subsection(h)(2)(iii) is later defined to include documents “relied upon in making the be nefit determination; [or] . . . submitted, considered, or generated in the course of making the benef it determination, without regard to whether such document, record, or ot her information was relied u pon in making the benefit determination.” 29 CFR § 2560.503-1(m)(8)(i)-(ii). 23 Rizzi also alleges Hartford violated 29 CFR § 2560.503-1(f)(3) which says in relevant part: “In the case of a claim for di sability benefits, the pl an administrator shall notify the claimant . . . of the plan’s adve rse benefit determinati on within a reasonable period of time, but not later than 45 days after receipt of the claim . . . .” Rizzi argues the December 11, 2005, letter stating Hartford woul d respond to the appe al within 45 days was an improper extension of time under the regul ations. We do not consider this issue. The record reveals no evidence this objection was rais ed by Rizzi upon receipt of the letter. Thus, she waived the i ssue by not allowing Hartford th e opportunity to correct any error it may have made. In any event, the regulation allows the 45-da y period to be extend ed for 30 days if the administrator (1) “determi nes that such an extension is necessary due to matters beyond the control of the plan;” and (2) “notif ies the claimant, prior to the expiration of the initial 45-day period, of the circumstance s requiring the extension of time and the date by which the plan expects to rende r a decision.” 29 CFR § 2560.503-1(f)(3). Arguably, both criteria were satisfied when Ha rtford communicated w ith Rizzi’s attorney about what it believed were missing records (including the neurolog ical study and nerve conduction study) and later anno unced the date by which its re view would be completed. Furthermore, extending the time to allow submission of additional medical records actually benefited Rizzi by enlarging the administrative record.- 32 - reasons it denied Rizzi’s claim and the specifi c plan provisions invo lved. The original determination letter quoted the Plan’s de finition of disabled and cited numerous documents in her file as th e bases for its decision she no longer qualified under that definition. 24 Hartford then discussed her compla ints of pain and disability and “the medical, investigative, and vocational info rmation on file” before concluding “the information . . . shows a level of function th at would be consistent with your ability to return to [work]” and “the medical inform ation on file does not show any evidence warranting any physical limitatio ns.” (Appellant’s App. Vol. II Rizzi Rec. at 136.) Second, Rizzi was given full opportunity to supplement the record during her administrative appeal. Hartford specifi cally requested the neurological and nerve examinations referenced by D r. Dvorak but not incl uded in Rizzi’s submissions. Rizzi’s attorney assured Hartford it ha d all information for the admini strative appeal. Finally, the administrative appeal decision letter again identified the definiti on of disabled and discussed all information in the medical file , including Rizzi’s s ubjective complaints. While Rizzi claims Hartford fa iled to provide her the resumes of Drs. Dibble and Siegel, she does not explain how this information wo uld qualify for mandatory disclosure under the relevant regulations. 25 In short, we detect no regulatory violation.

24 Documents cited included Quan’s “Attending Physician Statement,” a “telephonic interview with [Rizzi], Rizzi’s “C ontinuation of Disability Statement taken . . . on 4/25/06” (the statement she created with the investigator), “Medical records from Dr. Richard Dvorak . . . through 3/16/06,” and a “Fax communication from Dr. Dvorak dated 5/17/06.” (Appellant’s App., Vol. II Rizzi Rec. at 133-34.) 25 Indeed, when asked for Dr. Siegel’s curri culum vitae, Hartford informed Rizzi’s attorney it “do[es] not have that information and you need to contac t [UDC] directly.”- 33 - Rizzi argues she was denied her right to re ply to Dr. Siegel’s record review on appeal. In Metzger v. Unum Life Ins. Co. of Am. , we held: [The regulations do] not require a plan administrator to provide a claimant with access to the medical opinion report s of appeal-level reviewers prior to a final decision on appeal. Instead, the regulations mandate provision of relevant documents, including medi cal opinion reports, at two discrete stages of the administrative process. First, relevant documents generated or relied upon during the initia l claims determination mu st be disclosed prior to or at the outset of an administrativ e appeal. Second, relevant documents generated during the administrative ap peal-along with the claimant’s file from the initial determination-must be disclosed after a final decision on appeal. So long as app eal-level reports analyze ev idence already known to the claimant and contain no new fact ual information or novel diagnoses, this two-phase disclosure is consistent with full and fair review. 476 F.3d 1161, 1167 (10th Cir. 2007) (quotations an d citations omitted) (emphasis added); see also Sage v. Automation, Inc. Pension Plan & Trust, 845 F.2d 885, 893-94 (10th Cir. 1988) (holding a “full and fair re view” under ERISA requires “knowing what evidence the decision-maker relied upon, havi ng an opportunity to address the accuracy and reliability of the evidence, and having the decision-maker consider the evidence presented by both parties prior to reachi ng and rendering his decision”) (quotations omitted). Rizzi acknowledges Metzger but claims Dr. Siegel’s recommendation was not identical to Dr. Dibble’s and, thus, is ne w factual information to which she should be allowed to respond. Here, Rizzi knew all the facts considered by Hartford and Dr. Siegel. To that end, she had the opportunity to pr ovide additional inform ation to support her claim when she submitted her appeal and he r claim rests on the in formation she then

(Appellant’s App., Vol. II Rizzi Rec. at 194.)- 34 - submitted. “Permitting a claima nt to receive and rebut medi cal opinion repor ts generated in the course of an admini strative appeal . . . would se t up an unnecessary cycle of submission, review, re-subm ission, and re-review.” Metzger , 476 F.3d at 1166.
III. CONCLUSION Because our exhaustive consideration of Rizzi’s complaints discerns no improprieties in Hartford’s handling of Rizz i’s claim for benefits, we see no way in which its inherent conflict of interest affected its denial of benefits. The reviews by independent physicians and the detailed cons ideration of all objective and subjective information, including medical reports in conjunction with su rveillance evidence, reduced the bias arising from Hartford’s conf lict of interest and provided a reasonable basis for its decision.
AFFIRMED

. Entered by the Court: Terrence L. O’Brien United States Circuit Judge