United States Court of Appeals

For the First Circuit

No. 08-2381

DONNA CUSSON,

Plaintiff, Appellant,

v.

LIBERTY LIFE ASSURANCE COMPANY OF BOSTON;

and THE FLEETBOSTON FINANCIAL CORPORATION

LONG-TERM DISABILITY PLAN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, U.S. District Judge]

Before

Torruella, Selya, and Howard,

Circuit Judges.

Mala M. Rafik, with whom Alyssa A. Yenikomshian, S. Stephen

Rosenfeld, and Rosenfeld & Rafik, P.C., was on brief for appellant.

Samuel Berk and Margaret Arenas Malek, on brief for amicus

curiae Massachusetts Employment Lawyers Association, in support of

reversal.

George M. Thompson and Sager & Schaffer, LLP, on brief for

amicus curiae Health Law Advocates, in support of reversal.

Andrew C. Pickett, with whom Matthew D. Freeman and Jackson

Lewis LLP, was on brief for appellees.

January 14, 2010
 For additional background, see the decision below. Cusson v. 1

Liberty Life Assurance Co., No. 78-3386, 2008 U.S. Dist. LEXIS

77084 (D. Mass. Sep. 30, 2008).

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TORRUELLA, Circuit Judge. In this appeal, appellant

Donna Cusson ("Cusson") challenges the district court's decision to

grant summary judgment to appellees Liberty Life Assurance Company

of Boston ("Liberty") and the FleetBoston Financial Corporation

Long-Term Disability Plan ("LTD Plan"). After Liberty terminated

Cusson's long-term disability ("LTD") benefits, Cusson sued in the

U.S. District Court of Massachusetts, arguing that the termination

of her benefits was improper under the Employee Retirement and

Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1431 (2006). The

district court granted summary judgment in favor of the defendants,

and Cusson now appeals. After careful consideration, we affirm the

district court's judgment.

I. Background1

A. The Long-Term Disability Plan

Cusson was employed at FleetBoston as a Senior Facilities

Planner. She was covered under both a short-term disability plan

("STD Plan") and the LTD Plan. Liberty is both the administrator

of and payer of benefits under the LTD Plan. Under the terms of

the insurance policy ("the Policy") for the LTD Plan, the

definition of "Disability" or "Disabled" for LTD purposes varies

over time with the duration of the disability. For the initial

twenty-four-month period after a claimant switches into the LTD
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Plan from the STD Plan, a person is considered "disabled" if she is

unable to perform "all of the material and substantial duties of

[her] own occupation." However, after twenty-four months, a person

is considered "disabled" if she is "unable to perform, with

reasonable continuity, all of the material and substantial duties

of [her] own or any other occupation for which [s]he is or becomes

reasonably fitted by training, education, experience, and physical

or mental capacity."

B. Cusson's Fibromyalgia Diagnosis and Initial LTD Benefits Award

In March 2002, Cusson was diagnosed with breast cancer.

She began to receive benefits under the STD Plan in April 2002

because of the pain and fatigue caused by her chemotherapy. Cusson

was notified on October 9, 2002 that she qualified for LTD benefits

under the Policy. Liberty also informed Cusson that she was

required to apply for Social Security Disability Income ("SSDI")

benefits. Cusson's chemotherapy ended in October 2002. However,

she continued to feel symptoms similar to what she felt during her

cancer treatment, including dizziness, fatigue, headaches, and

widespread body pain.

In February 2003, Cusson's rheumatologist, Dr. James

Figueroa ("Figueroa"), diagnosed her with fibromyalgia.

Fibromyalgia is characterized by "chronic and frequently difficult

to manage pain in muscles and soft tissues surrounding joints."

Rose v. Hartford Fin. Servs. Group, 268 F. App'x. 444, 446 n.4 (6th
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Cir. 2008) (citing Taber's Cyclopedic Medical Dictionary 402 (19th

ed. 2001)). A patient may be diagnosed with fibromyalgia if she

has (1) a history of widespread pain for at least three months and

(2) pain in at least eleven out of eighteen tender point sites upon

digital palpation. Id. Symptoms of fibromyalgia can include

stiffness, fatigue, and disturbed sleep. See Sarchet v. Chater, 78

F.3d 305, 306 (7th Cir. 1996).

On March 28, 2003, at Liberty's request, Cusson completed

an Activities Questionnaire, a document in which a claimant is

asked to describe her day-to-day activities and her functional

limitations. Cusson indicated that she was able to sit for

approximately two hours, stand for fifteen to thirty minutes, and

walk for thirty to forty-five minutes. She noted that these

lengths of time were "longer/shorter depending on the day and how

I feel." She also reported memory and concentration problems, and

indicated that she was never able to predict how she would feel

from one day to the next.

On August 21, 2003, at Liberty's request, Figueroa filled

out a questionnaire regarding Cusson's condition. Figueroa was

asked to describe "specific restrictions and limitations . . .

preventing your patient from being able to work." Figueroa also

submitted a Physical Capacities Form, on which he reported that

Cusson could lift no more than ten pounds twice a day, could sit

for four hours per day but needed to stand up every fifteen
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minutes, could stand for up to one hour but needed to sit every

five to ten minutes, and could walk for an hour but needed to rest

every few minutes. Figueroa concluded that Cusson could not work

a full eight-hour day until her pain and fatigue subsided.

On March 15, 2004, Liberty notified Cusson that beginning

September 29, 2004, the definition of "disabled" under the Policy

would change, after which Cusson would have to be unable to perform

all of the material and substantial duties of any occupation for

which she was qualified. On May 7, 2004, Figueroa, at Liberty's

request, completed a Functional Capacities Form and a Restrictions

Form. The Functional Capacities Form asked Figueroa to list, for

various activities, whether Cusson had "[n]o [r]estrictions," could

perform the activity "[f]requently (1/3 to 2/3 of the time),"

"[o]ccasionally (up to 1/3 of the time)," or was "[u]nable to"

perform the activity. Figueroa indicated that Cusson was "[u]nable

to" squat, bend, kneel, climb, push or pull objects, or lift any

weight over ten pounds.

C. 2004 Review and Termination of Cusson's LTD Benefits

On May 18, 2004, Liberty hired Omega Insurance Services,

Inc. ("Omega") to conduct video surveillance of Cusson. Eleven

days later, Liberty again told Cusson to apply for SSDI benefits,

warning that if she did not, Liberty would reduce her disability

benefit by the amount she was eligible to receive from the Social
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Security Administration ("SSA"). Liberty also informed Cusson that

it would help her obtain SSDI benefits.

Omega conducted surveillance of Cusson on June 9-12, 17,

and 24, 2004. Omega videotaped Cusson when she was observed

outside of her home, and it obtained fifty minutes and fifty-eight

seconds of video over the course of these six days. The video

footage that was obtained appeared to show Cusson engaged in normal

activities. For example, on June 9, Cusson was observed walking

her dog for approximately thirty minutes; according to the Omega

report, Cusson walked "in a smooth, fluid manner without exhibiting

any external signs of impairment." Later that day she drove to a

nearby Home Depot store and was seen exiting the store an hour

later carrying a shopping bag. On June 24, Cusson was observed

having lunch with a friend at a restaurant and then going to a WalMart. Cusson was inside the Wal-Mart for almost one hour, after

which she exited with a loaded shopping cart. She loaded the items

from her cart, including what Omega's report described as a large

bag of cat litter, into her car, and she was also observed bending

at the waist to pick up items that had fallen on the ground.

On July 20, 2004, Liberty told Cusson that if she did not

provide proof of her SSA application by August 3, 2004, Liberty

would immediately reduce her benefits by the estimated amount of

the SSDI benefit. Liberty also instructed Omega to conduct a

second round of surveillance. This surveillance occurred between
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July 26 and 28, during which time Cusson was seen on the

surveillance tape once, on July 27, for a total of one minute and

seven seconds.

In August 2004, Liberty ordered a third round of video

surveillance. Omega performed this surveillance on August 2, 9-10,

14, and 26. Cusson was seen leaving her home only on August 26.

Cusson was observed bending fully at the waist to retrieve an item

outside her front door. She was then seen driving to a local

restaurant and eating lunch with another person, and was then seen

driving to a dry cleaner's, a Wal-Mart, and other department

stores. During the course of her errands, she was observed

carrying various items into and out of stores and bending at the

waist to retrieve items from or place items into her car.

On September 15, 2004, Cusson completed another

Activities Questionnaire from Liberty, in which she described her

functional limitations, including pain, fatigue, memory loss, and

inability to concentrate. Cusson reported that since her last

Activities Questionnaire from March 28, 2003, she could not

remember going to a mall because malls were "just too big";

instead, Cusson noted, she went "mostly to small stores [with] easy

access in + out." Cusson also reported that she had "good" days

and "bad" days. She said that on a "good" day she would be able to

perform activities such as running errands, visiting other people,

and having lunch outside her home. However, she reported that on
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a "bad" day she would be unable to sleep because of her pain and

would often be unable to get out of bed for several days.

On October 13, 2004, Figueroa reported to Liberty that,

during an eight-hour work day, Cusson could sit for less than two

hours, stand for less than thirty minutes, and walk for fifteen

minutes. Figueroa also noted that Cusson could not lift or carry

more than ten pounds and could not work eight hours per day in any

occupation. Two days later, Figueroa reported to Liberty that

Cusson's "limitations tend to vary with the severity of [her]

symptoms."

Upon receipt of Figueroa's reports, Liberty referred

Cusson's file to Dr. Robert Millstein ("Millstein"), a full-time

Liberty employee, for review. Millstein reviewed Cusson's claim

and concluded that "the video surveillance demonstrates functional

capacity which exceeds that reported on the most recent activities

questionnaire and confirms that the claimant retains the physical

capacity to perform full-time work at a light level." Millstein

noted a number of apparent inconsistencies between Cusson's

reported limitations and the video surveillance. For example,

Millstein noted that although Cusson reported fatigue, the

surveillance showed that "on consecutive days, [Cusson] is seen out

of her house for long periods of time performing activities which

would be best characterized as requiring light to medium physical

capacity." Thus, Millstein concluded, "the record does not support
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the presence of fatigue which would preclude full-time work."

Millstein also noted that Cusson was seen going into large stores,

such as Wal-Mart and Home Depot, even though she had previously

reported that she did not go to malls because malls were too big.

Millstein also noted that Cusson was seen bending at the waist and

placing a large object, a bag of cat litter, in her car.

Millstein's report contained inaccurate statements about

the surveillance results. Millstein frequently confused sightings

of Cusson returning home with sightings of Cusson leaving her home.

Millstein also said that on certain days Cusson left her home and

remained out of her home for long periods, when in fact the

surveillance for those days clearly shows that Cusson returned to

her home at various points throughout the day. As a result of

these errors, Millstein's report overstates the amount of time

Cusson spent outside of her home on certain days, sometimes by as

much as a factor of three.

In November 2004, Liberty ordered a fourth round of

surveillance, this time conducted by MJM Investigations, Inc.

("MJM"). MJM observed Cusson on November 2-6 and 11, 2004. Cusson

was seen outside of her home for a total of roughly half an hour

over the course of the surveillance. On November 2, Cusson was

observed exiting her house carrying various bags and leaving her

home as the passenger in a car. On November 4 and 11, Cusson was
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briefly seen driving to various locations to run errands. Cusson

was not seen outside of her home on November 3, 5, or 6.

On November 29, 2004, Liberty conducted a Transferable

Skills Analysis and Labor Market Survey ("TSA") of Cusson's claim,

relying solely on Millstein's report. The analysis concluded that

Cusson could perform her occupation as a Facilities Manager as well

as other occupations, such as Construction Manager, Property/Real

Estate Manager, and Civil Engineer.

On December 8, 2004, Liberty sent Cusson a letter

informing her that her benefits were being terminated. The letter

discussed the video surveillance and Millstein's review of Cusson's

file. The letter also noted the results of the TSA and informed

Cusson that she was capable of performing her original job as a

Facility Planner. In addition, the letter noted that Liberty had

written to Figueroa requesting a response to Millstein's report and

the video surveillance, but that Figueroa had not responded.

D. Cusson's Appeal and Further Tests

On June 1, 2005, Cusson notified Liberty that she was

appealing its decision to terminate her benefits. Cusson submitted

various documents, including her own sworn statement; affidavits

from her friends, family, and former colleagues; and a chart

comparing the surveillance reports with her own recollection of her

activities on the days she was surveilled. Cusson's sworn

statement and activity chart indicate that on some of the days she
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was seen outside of her home, she would "hit a wall" and return

home "crying in pain." However, Cusson's activity chart is

completely silent as to what she was doing, or what symptoms she

was experiencing, on many days when she was not observed outside of

her home.

Cusson also submitted medical reports from in-person

examinations by Dr. Peter Schur ("Schur"), a rheumatologist, and

Drs. Daniel Cohen ("Cohen") and Jean Matheson ("Matheson"), who

specialize in sleep disorders. Schur's examination was paid for by

Cusson's health insurer as part of her treatment. Schur's

examination indicated that Cusson had limited motion in her

shoulders, hips, and back; had "fair muscle tone at best"; and was

painfully sensitive to touch. Schur concluded that Cusson was

disabled "at present," and recommended treatment options. Cohen

and Matheson indicated that Cusson had trouble sleeping because of

her pain, but they did not render an opinion as to disability.

Cusson also submitted a report from Paul Blatchford, Ed.

M. ("Blatchford"), a vocational rehabilitation expert, who

conducted an in-person evaluation on February 15, 2005.

Blatchford's report detailed Cusson's impaired performance on a

variety of standardized vocational tests approved by the United

States Department of Labor ("DOL"). The report noted that Cusson

appeared exhausted and distracted throughout the entire proceeding.

Blatchford noted that under DOL guidelines, the occupations for
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which Cusson was qualified required "sedentary" to "light" exertion

levels. Blatchford concluded that Cusson's functional capacity

precluded her from performing and sustaining any work-related

activities. Blatchford also disputed Liberty's interpretation of

the surveillance videos. He argued that the videos failed to

address Cusson's cognitive limitations. He also noted that

although the video showed that Cusson was capable of short periods

of activity, a fact that she herself had reported, it did not show

Cusson engaged in sustained activity that would be necessary for

any kind of employment.

On July 26, 2005, Liberty informed Cusson that it had

referred her file for two peer reviews. Both reviews were paid for

by Liberty. One review was conducted by Dr. Walter Longo

("Longo"), an oncologist, who determined that there was "no

objective data supporting ongoing impairment due to prior therapy"

for breast cancer, but that it was possible that Cusson could have

limitations due to fibromyalgia. The other was conducted by Dr.

Jeffrey Liebermann ("Liebermann"), a rheumatologist, who concluded

that Cusson "should be able to perform the duties of light or

sedentary occupations" despite her fibromyalgia, and that Cusson's

impairments were "entirely subjective." Liebermann also claimed to

have spoken on the phone with Figueroa. Liebermann reported that

during his conversation with Figueroa, Figueroa said that he had

told Cusson that he no longer wished to be consulted about the
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disability aspects of her case. On August 11, 2005, Liebermann

sent Figueroa a letter purporting to summarize their conversation

and requesting that Figueroa review and make comments or

corrections to the letter and fax it back to him. Figueroa did not

sign the letter or return it.

On September 7, 2005, Cusson underwent an examination by

Dr. Mitchell Abramson ("Abramson"). Abramson reported that Cusson

had "multiple trigger points" for pain and was unable to bend

forward more than forty degrees due to back pain. Abramson

concluded that Cusson "appear[ed] to be disabled due to her medical

illness." On September 9, 2005, Blatchford wrote an addendum to

his February 15, 2005 report, stating that Liberty's interpretation

of the surveillance reports was "inaccurate, and contradicted by

the videotapes themselves." Blatchford noted that the video of

Cusson running errands was "consistent with [Cusson's] ability to

perform activities for limited periods of time," but that Cusson's

need for frequent rest and her "tendency to 'fade' after engaging

in any task for a sustained period of time" showed that she

"lack[ed] the ability to engage in sustained work, whether

sedentary or otherwise."

Cusson submitted Abramson's report, Blatchford's

addendum, and other documentation to Liberty on September 15, 2005.

In response, Liberty conducted a second round of peer reviews.

Both of these additional reviews were conducted by MLS National
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Medical Evaluations, Inc. ("MLS") and paid for by Liberty. The

first review was conducted by Dr. Reynold Karr ("Karr"), a

rheumatologist, who concluded that he did not "identify any

objective medical basis for impairment or need for physical

restrictions based upon review of the accompanying medical record."

The second MLS review was conducted by Dr. Matthew Kaufman

("Kaufman"), an oncologist. Kaufman indicated that, from his

perspective as an oncologist, there was no "identifiable or

medically supported level of functional impairment that can be

objectively verified." However, Kaufman noted that fibromyalgia

fell outside his area of expertise, and conceded that Cusson "may

have a level of functional impairment due to . . . fibromyalgia

and/or psychological overlay."

On November 1, 2005, Liberty upheld its decision to

terminate Cusson's benefits. Liberty stated that "based on the

totality of clinical and objective medical documentation contained

in Ms. Cusson's file, sedentary to light capacity has been

established."

E. Award of SSDI Benefits

On January 21, 2006, an Administrative Law Judge ("ALJ")

awarded Cusson SSDI benefits, with a disability date of March 15,

2002. In granting the benefits, the ALJ found that Cusson was

"unable to do sustained work activities in an ordinary work setting

on a regular and continuing basis."
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F. District Court Proceedings

On December 7, 2005, Cusson filed suit against Liberty

and the LTD Plan in the District of Massachusetts under ERISA, 29

U.S.C. § 1001 et seq. Cusson sought to recover her benefits

pursuant to 29 U.S.C. § 1132(a)(1)(B). Liberty answered and

asserted a counterclaim seeking reimbursement for overpayment of

benefits under the Policy as a result of Cusson having received

SSDI benefits. The parties filed cross-motions for summary

judgment on all issues.

Because the LTD Plan gave Liberty discretion to determine

eligibility for benefits, the district court applied an abuse of

discretion standard to Liberty's decision. Under this standard,

Liberty's decision would be upheld if it was "reasoned and

supported by substantial evidence." Gannon v. Metro. Life Ins.

Co., 360 F.3d 211, 213 (1st Cir. 2004). The district court

recognized that Liberty had a structural conflict of interest,

since it both evaluated benefit claims and paid the benefits.

However, the district court, citing the Supreme Court's decision in

Metropolitan Life Insurance Co. v. Glenn, held that even in the

face of a conflict, the standard of review remained deferential,

and that the conflict was "one factor among many that a reviewing

judge must take into account." 128 S. Ct. 2343, 2351 (2008).

Cusson made two main arguments in her district court case

opposing the denial of benefits. First, she argued that Liberty
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and its reviewers improperly used and interpreted the surveillance

videos. Second, she argued that Liberty's review process was

flawed, and that these flaws showed that Liberty's decision was an

abuse of discretion. The district court held that Liberty's

decision to terminate her benefits was not an abuse of discretion.

With respect to the surveillance results, the court held that,

although the surveillance supported the inference that Cusson could

not perform sustained activity, the surveillance also supported the

inference that "Cusson and Dr. Figueroa had significantly

overstated [Cusson's] functional limitations." The court also

rejected Cusson's various claims of procedural unfairness in

Liberty's review process. In addition to upholding Liberty's

decision to terminate Cusson's benefits, the court also granted

summary judgment to Liberty on its counterclaim.

Cusson now appeals the district court's decision.

II. Discussion

A. Applicable Law and Standard of Review

We review a district court's grant of summary judgment de

novo. Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.

2008). Normally, when we review a district court's grant of

summary judgment, "[w]e will reverse only if, after reviewing the

facts and making all inferences in favor of the non-moving party

[here, Cusson], the evidence on record is sufficiently open-ended

to permit a rational factfinder to resolve the issue in favor of
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either side." Id. (internal quotation marks omitted). However, in

an ERISA benefit-denial context, "the district court sits more as

an appellate tribunal than as a trial court." Leahy v. Raytheon

Corp., 315 F.3d 11, 18 (1st Cir. 2002). In such cases, "summary

judgment is simply a vehicle for deciding the issue," and,

consequently, "the non-moving party is not entitled to the usual

inferences in its favor." Orndorf v. Paul Revere Life Ins. Co.,

404 F.3d 510, 517 (1st Cir. 2005).

When an ERISA plan gives the administrator the discretion

to determine eligibility for benefits (as in this case), a

reviewing court must uphold that decision unless it is "arbitrary,

capricious, or an abuse of discretion." Gannon, 360 F.3d at 213

(citing Vlass v. Raytheon Employees Disability Trust, 244 F.3d 27,

30 (1st Cir. 2001)). However, Cusson argues that the Supreme

Court's decision in Glenn changed the standard of review from an

abuse of discretion standard to a "combination of factors" standard

in cases where, as here, there is a structural conflict of

interest. We disagree.

In deciding what effect a conflict would have on the

standard of review, the Supreme Court in Glenn "elucidate[d] what

[the] Court said in Firestone, namely, that a conflict should 'be

weighed as a factor in determining whether there is an abuse of

discretion.'" Glenn, 128 S. Ct. at 2350 (quoting Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). However, the Court
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went on to say, "We do not believe that Firestone's statement

implies a change in the standard of review, say, from deferential

to de novo review." Id. Rather, the Court said that "Firestone

means what the word 'factor' implies, namely, that when judges

review the lawfulness of benefit denials, they will often take

account of several different considerations of which a conflict of

interest is one." Id. at 2351.

Because Glenn did not alter the standard of review, and

because our review of the lower court's grant of summary judgment

is de novo, we will review Liberty's decision to deny Cusson's

benefits under the same abuse of discretion standard used by the

district court. See Denmark v. Liberty Life Assurance Co. (Denmark

III), 566 F.3d 1, 9 (1st Cir. 2009) (where the plan administrator

has discretion, "Glenn's baseline principle, consistent with this

circuit's prior precedents, [is] that judicial review of such a

benefit-denial decision is for abuse of discretion").

B. Appropriate Weight Given to the Conflict of Interest

Although the presence of a conflict of interest does not

change the standard of review in this case, the conflict itself

can, under certain circumstances, be accorded extra weight in the

court's analysis. In Glenn, the Supreme Court held that "[t]he

conflict of interest at issue . . . should prove more important

(perhaps of great importance) where circumstances suggest a higher

likelihood that it affected the benefits decision, including, but
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not limited to, cases where an insurance company administrator has

a history of biased claims administration." 128 S. Ct. at 2351.

On the other hand, the conflict "should prove less important

(perhaps to the vanishing point) where the administrator has taken

active steps to reduce potential bias and to promote accuracy."

Id.

We have interpreted this language from Glenn to mean that

"courts are duty-bound to inquire into what steps a plan

administrator has taken to insulate the decisionmaking process

against the potentially pernicious effects of structural

conflicts." Denmark III, 566 F.3d at 9. Although Cusson argues

that it is Liberty's burden to show that the conflict did not

affect its decision, the Supreme Court explicitly declined to

specify a burden-of-proof rule for determining the weight that a

conflict should be given. See Glenn, 128 S. Ct. at 2351 ("Neither

do we believe it necessary or desirable for courts to create

special burden-of-proof rules, or other special procedural or

evidentiary rules, focused narrowly upon the evaluator/payer

conflict."). We therefore apply the same burden of proof to the

conflict issue that we do to any other aspect of an ERISA claim for

improper denial of benefits; hence, Cusson bears the burden of

showing that the conflict influenced Liberty's decision. See Terry

v. Bayer Corp., 145 F.3d 28, 34 (1st Cir. 1998) ("Here, [claimant]

bears the burden of making a showing sufficient to establish a
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violation of ERISA, namely, that the benefit termination was

unreasonable." (internal quotation marks omitted)).

Cusson has not raised (and, thus, the parties have not

briefed) the issue of the adequacy of Liberty's internal procedures

to insulate the review process from the conflict. Instead, Cusson

argues that certain alleged flaws in the way the review was

conducted prove that Liberty's decision was influenced by its

conflict. As discussed below, we do not find that these alleged

flaws show that Liberty was improperly influenced by its conflict.

Firstly, Cusson argues that Liberty relied exclusively on

Millstein's report, including his inaccurate statements about the

surveillance results, rather than relying on the totality of the

record. Cusson correctly points out that in its initial denial

letter, Liberty quoted language that it claimed was from the

surveillance reports, but that was actually from Millstein's

interpretation of the surveillance. Liberty also claimed that it

relied on its TSA, but the record indicates that the TSA was based

solely on Millstein's report.

We find nothing wrong with the degree of Liberty's

reliance on Millstein's report. Although the denial letter from

Liberty quoted Millstein's summary of the surveillance data, and

not the surveillance reports themselves, the record also indicates

that Liberty's case manager did review the tapes. Moreover, as the

district court noted, even though Millstein made inaccurate
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statements about the surveillance data in his report, Millstein's

main substantive point about the surveillance -- that it showed

Cusson engaged in activities that she claimed she could not do --

was accurate. Many of the activities that Cusson was observed

doing were activities that she specifically reported being unable

to do, such as bending at the waist and lifting objects heavier

than ten pounds. Moreover, when Cusson was seen outside, she did

not appear to show any signs of fatigue or impaired physical

capabilities. While this is by no means ironclad proof of ability

to work, it is evidence that Liberty was entitled to consider. We

read Liberty's decision as being based not simply on the amount of

activity observed, but also on the nature of the activity observed,

and Millstein's report contained no errors with respect to the

latter.

Next, Cusson argues that Liberty improperly relied on

Liebermann's hearsay testimony about his conversation with

Figueroa. Liebermann claimed that he spoke with Figueroa and that

Figueroa "understood that there was a significant discrepancy

between the claimant's reported functionality and what was seen on

the surveillance tapes." Liebermann further claimed that Figueroa

indicated that he had told Cusson that he no longer wished to be

involved in the disability aspect of her case. However, Cusson

noted that Figueroa never responded to Liebermann's request to sign

off on Liebermann's account of their conversation. Thus, Cusson
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argues, Liebermann's entire account of the conversation is hearsay

that neither Liberty nor the district court should have relied on

in its decision.

However, "[a] plan administrator is not a court of law

and is not bound by the rules of evidence." Speciale v. Blue Cross

& Blue Shield Ass'n, 538 F.3d 615, 622 n.4 (7th Cir. 2008).

Because Figueroa never responded to Liebermann's request to comment

on his account of the conversation, it was not an abuse of

discretion for Liberty to assume that Liebermann's account of the

conversation was accurate. Since Cusson never presented Liberty

with any evidence to challenge directly Liebermann's account of the

conversation, we find nothing inappropriate about Liberty's

reliance on that account.

Cusson next argues that Liberty's reviewing physicians

were biased against patients with fibromyalgia. Although

Liebermann's report mentions some of the evidence submitted by

Cusson, Cusson alleges that Liebermann reached his conclusion about

her ability to work without actually analyzing the medical evidence

in her file. In his report, Liebermann stated: "This claimant has

a diagnosis of [f]ibromyalgia. As such, she should be able to

perform the duties of light or sedentary occupations." Cusson

argues that this statement indicates that Liebermann had a

preconceived notion that fibromyalgia could never be a disabling

diagnosis, and thus did not fairly consider her file. Similarly,
-23-

Millstein cited a 1986 study of fibromyalgia patients that

indicated that most of them were eventually able to return to work.

Cusson points out that the Seventh Circuit has held that "[t]he

fact that the majority of individuals suffering from fibromyalgia

can work is the weakest possible evidence that [an individual

claimant] can." Hawkins v. First Union Corp. Long Term Disability

Plan, 326 F.3d 914, 919 (7th Cir. 2003).

If Liebermann or Millstein had said that fibromyalgia

patients are never disabled, those statements would be clearly

wrong. However, although Liebermann and Millstein made statements

that might be interpreted as improper generalizations, it does not

necessarily follow that they relied on such generalizations when

issuing their reports. Had either doctor concluded that Cusson was

not disabled because fibromyalgia is never or not always disabling,

that conclusion would have been inappropriate. However, both

doctors' reports indicate that they reviewed the surveillance

footage and based their conclusions on the apparent contradiction

between the footage and Cusson's reported impairments.

Cusson also argues that Liberty's reliance on paper file

reviews instead of direct medical examinations shows that it was

influenced by its conflict. Cusson acknowledges that this court

has found "a nonexamining physician's review of a claimant's file

[to be] . . . reliable medical evidence." Gannon, 360 F.3d at 214.

However, Cusson argues that the particular circumstances of this
-24-

case warrant a preference for reports by examining physicians. She

notes that fibromyalgia is a disease that can only be diagnosed by

a clinical examination of a patient based on subjective reports of

pain. Certain circuits have held that in such cases some deference

to examining physicians is appropriate. See, e.g., Kalish v.

Liberty Life Assurance Co., 419 F.3d 501, 509-10 (6th Cir. 2005);

Hawkins, 326 F.3d at 919 (the "gravest problem" with the opinion

offered by an ERISA plan administrator's paper-reviewing doctor was

his refusal to accept "subjective symptoms" of pain and fatigue

known to be associated with fibromyalgia). Moreover, Cusson notes

that Liberty's reviewing physicians were paid for their reports by

Liberty, whereas Cusson's treating physicians were paid by her

health insurance company. The Supreme Court has recognized that

"physicians repeatedly retained by benefits plans may have 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) (internal quotation marks omitted).

We see no reason why the nonexamining physicians' reports

in this case are unreliable. We recognize that fibromyalgia is a

disease that is diagnosed primarily based on a patient's selfreported pain symptoms. However, Liberty's reviewers did not

question the diagnosis of fibromyalgia; instead, they questioned

the effect of the disease on Cusson's ability to work. "[T]his
-25-

court draws a distinction between requiring objective evidence of

the diagnosis, which is impermissible for a condition such as

fibromyalgia that does not lend itself to objective verification,

and requiring objective evidence that the plaintiff is unable to

work, which is allowed." Denmark v. Liberty Life Assurance Co.

(Denmark II), 481 F.3d 16, 37 (1st Cir. 2007), vacated on other

grounds, 566 F.3d 1 (1st Cir. 2009). Because it is permissible to

require documented, objective evidence of disability, it was not

inappropriate for Liberty's reviewers to rely on the lack of such

documented evidence, or on the footage that contradicted Cusson's

reports of limitations, in making their recommendations. The fact

that Liberty's reviewers were paid for their reports does not, by

itself, lead us to believe that Liberty was influenced by its

conflict, since Cusson has provided no evidence that Liberty

retained its reviewers specifically because they have a record of

denying claims.

Next, Cusson claims that Liberty failed to provide her

complete medical record to its reviewers. Liberty's internal files

indicated that "[a]ll medical records" had been sent to its

reviewers. However, the reviewers did not list certain documents

that were favorable to Cusson -- such as various medical records,

her activity log, and portions of the surveillance reports that

showed no activity -- in their reports. The district court held

that under our holding in Tsoulas v. Liberty Life Assurance Co., it
 Cusson also argues that, in the wake of Glenn, the district 2

court was wrong to place the burden of proof on her to show that

the records were not provided. However, as we noted above, the

Supreme Court explicitly chose not to impose any new burden-ofproof rules with respect to conflicts.

-26-

would be improper for the court automatically to assume that unless

the medical report lists each item the examiner reviewed, he or she

did not review it. See 454 F.3d 69, 77 (1st Cir. 2006). However,

Cusson argues that the district court's reliance on Tsoulas was

incorrect. Cusson points out that in Tsoulas, the plaintiff's

claim that Liberty failed to provide certain documents to the

reviewers was obviously incorrect because some of the documents

that the plaintiff said were missing were explicitly listed in

those same reviewers' reports. Id. In contrast, the documents

that Cusson claims were not provided are not listed in any of

Liberty's reviewers' reports.2

Cusson's attempt to distinguish Tsoulas from this case

fails. Contrary to Cusson's position, the reviewing physician

reports in Tsoulas did not explicitly mention certain reports that

the claimant said were missing; rather, the district court inferred

that those documents were provided because the physicians' reports

listed some, but not all, of the documents. See id. Likewise, in

this case, each of the reviewing physicians' reports list at least

some of the supplementary material provided by Cusson. Hence, in

this case, as in Tsoulas, we find no reason to believe that Liberty

did not supply the entire record.
-27-

Finally, Cusson argues that Liberty's failure to credit

the SSA's award of disability benefits shows that Liberty was

influenced by its conflict. Cusson notes that Liberty insisted

that she apply for SSDI benefits, which she was awarded, but now

seeks to benefit financially from that award by claiming the right

to reimbursement for overpayment. Cusson notes that in Glenn, the

Supreme Court treated this behavior as evidence that a conflict

influenced the plan administrator's judgment. In Glenn, the plan

administrator encouraged the claimant to apply for SSDI benefits

and then recovered the bulk of those benefits by virtue of the

reimbursement provision. The administrator then turned around and

denied benefits for the same disability that it had encouraged the

claimant to plead to the SSA. The Court held: 

This course of events was not only an

important factor in its own right (because it

suggested procedural unreasonableness), but

also would have justified the court in giving

more weight to the conflict (because MetLife's

seemingly inconsistent positions were both

financially advantageous).

Glenn, 128 S. Ct. at 2352.

We find nothing suspicious about Liberty's failure to

credit Cusson's successful application for SSDI benefits, because

Cusson was not awarded SSDI benefits until after Liberty denied her

LTD benefits. We have held that when reviewing an insurer's

decision to deny benefits, we determine whether "the insurer's

eligibility determination was unreasonable in light of the
-28-

information available to it when it made its decision." Denmark

II, 481 F.3d at 39 (internal quotation mark omitted). Because the

SSA's award of benefits had not yet occurred when Liberty made its

decision, that fact could not have been known to Liberty.

In summary, as discussed above, we do not find that

Liberty's decision was improperly influenced by its structural

conflict of interest. We therefore do not accord any special

weight to the conflict in our analysis of whether Liberty's

decision was proper, but rather consider it along with all of the

factors present in this case to determine if Liberty's ultimate

conclusion regarding Cusson's benefits was "reasoned and supported

by substantial evidence." Gannon, 360 F.3d at 213. We turn to

this question below.

C. Whether Liberty's Decision Was an Abuse of Discretion

Cusson argues that the factors discussed in Section

II(B), supra, which she claims show that Liberty was influenced by

its conflict, also show that Liberty's ultimate decision was an

abuse of discretion. For the same reasons we articulated above, we

do not believe that these factors prove that Liberty's decision was

an abuse of discretion.

Cusson further argues that, contrary to the conclusions

of Liberty and its reviewers, the surveillance video does not

actually contradict any of her self-reported disabilities. Cusson

never claimed that she was entirely incapable of performing
 Cusson argued to the district court that Liberty's internal 3

training manuals regarding video surveillance should have been

admitted to the record. The district court denied this request

because Cusson did not demonstrate a "very good reason" for the

inclusion of the manuals. See Liston v. UNUM Corp. Officer

Severance Plan, 330 F.3d 19, 23 (1st Cir. 2003). Cusson challenges

this decision on appeal. However, Cusson does not clearly explain

why these documents would assist this court in determining whether

Liberty's decision was an abuse of discretion. Because we do not

see why these documents would be relevant to this case, we do not

reach the issue of whether the district court properly excluded

them.

-29-

normally; rather, she only claimed that she was unable to function

normally most of the time. Thus, Cusson argues, given how

infrequently she was seen outside of her home during the course of

the surveillance, the surveillance is consistent with her claim of

disability, and it was an abuse of discretion for Liberty to use it

as evidence against her claim. Cusson notes that the surveillance

video represents a mere two hour snapshot from twenty days of her

life over the course of four months. Cusson cites a number of 3

cases in which courts have held that it was an abuse of discretion

to rely on such limited surveillance data. See, e.g., Soron v.

Liberty Life Assurance Co., 2005 WL 1173076, at *11 (N.D.N.Y.

May 2, 2005) (surveillance cannot be used to discount plaintiff's

self-reported symptoms where "it shows her performing isolated

activities for brief periods of time with no revelation of

consequences"); Osbun v. Auburn Foundry, Inc., 293 F. Supp. 2d 863,

870 (N.D. Ind. 2003) (1.5 hours of surveillance video over two days

fell short of demonstrating that plaintiff was capable of
-30-

sustaining a job); Cross v. Metro. Life Ins. Co., 292 F. App'x.

888, 892 (11th Cir. 2008) (five days of surveillance resulting in

two hours of video provided a "mere snapshot" of plaintiff's

activities and failed to take into account impact of those

activities on plaintiff).

We conclude that it was reasonable to use the

surveillance as evidence against Cusson's claim of disability. We

have permitted ERISA plan administrators to use this type of

sporadic evidence in the past. See, e.g., Denmark II, 481 F.3d at

38 (it was not arbitrary and capricious for Liberty to consider

reports and photographs from four days of surveillance that showed

claimant outside only for short periods of time on two of the four

days); Tsoulas, 454 F.3d at 79 (no abuse of discretion where

Liberty considered surveillance evidence consisting of four hours

per day for three days even though it only represented a "small --

impliedly non-representative -- fraction of each day"). More

importantly, although the limited amount of time she was seen

outside her home is a factor that weighs in Cusson's favor, Liberty

was certainly entitled to take notice of the fact that the video

shows Cusson doing particular activities that she claimed she could

not do. For example, she is seen going into large stores on two

separate occasions, despite having claimed that she avoided malls

because they were too big and preferred small stores. While we of

course recognize that a Home Depot or a Wal-Mart is not the same
In our prior ERISA cases, we have variously described the 4

standard of review, applicable when an ERISA plan grants the plan

administrator the discretion to determine eligibility for benefits,

as review for "abuse of discretion," "arbitrariness and

capriciousness," and "substantial evidence." In the ERISA benefit-

-31-

thing as a mall, we cannot say that it was an abuse of discretion

for Liberty and its reviewers to conclude that Cusson's apparent

ability to navigate very large stores contradicted her claim that

her illness required her to frequent small stores. The

surveillance also shows Cusson bending, kneeling, picking up large

objects such as a bag of cat litter, and pushing a loaded cart,

despite the fact that the Functional Capacities Form completed by

Figueroa on May 4, 2004 indicated that Cusson was physically unable

to perform these activities.

Because we find that Liberty was entitled to credit the

surveillance, we are left to determine whether Liberty's ultimate

conclusion was supported by the totality of the evidence. We find

that it was. Cusson argues that Liberty failed to consider her

objective evidence of disability. However, the record reflects

that Liberty reached its decision not because it failed to consider

the evidence in Cusson's favor, but because it determined that the

surveillance results undermined the credibility of important

portions of that evidence. Because we review Liberty's decision

under an abuse of discretion standard, we must uphold it if we find

that it was "reasoned and supported by substantial evidence in the

record." Vlass, 244 F.3d at 30 (internal quotation marks 4
denial context, these terms are interchangeable. See Denmark III,

566 F.3d at 7.

-32-

omitted). "Evidence is substantial when it is reasonably

sufficient to support a conclusion. Evidence contrary to an

administrator's decision does not make the decision unreasonable,

provided substantial evidence supports the decision." Wright v. R.

R. Donnelley & Sons Co. Group Benefits Plan, 402 F.3d 67, 74 (1st

Cir. 2005). Because we cannot say that the evidence in this case

was insufficient to support Liberty's conclusion, we affirm

Liberty's decision to terminate Cusson's benefits.

D. Whether Liberty's Counterclaim Is Allowed

Liberty asserted a counterclaim to recover Cusson's SSDI

benefits under 29 U.S.C. § 1132(a)(3), which states that a plan

fiduciary can bring a civil action to obtain "appropriate equitable

relief . . . to enforce . . . the terms of the plan." Under the

LTD Plan, if Cusson received an overpayment on her disability claim

from any source, Liberty "ha[d] the right to recovery of such

overpayments from [Cusson] or [Cusson's] estate." Although Liberty

terminated Cusson's LTD benefits before Cusson was awarded SSDI

benefits, the SSA awarded benefits retroactive to March 15, 2002.

Liberty argues that because it paid STD and LTD benefits from this

date until December 8, 2004, the SSDI benefits Cusson received for

this period are an overpayment, and hence that § 1132(a)(3) allows

it to sue to enforce the right to recover the overpayment.
-33-

Cusson argues that Liberty's counterclaim is a legal

claim, rather than an equitable claim, and hence that it is not

permitted under § 1132(a)(3). Cusson relies on Great West Life &

Annuity Insurance Co. v. Knudson, a case involving a similar

overpayment provision in an ERISA plan, in which the Supreme Court

held that the plan administrator could not use the overpayment

provision to recover the proceeds from the plan beneficiaries' tort

suit against a third party because the claim was a legal claim

rather than an equitable claim. 534 U.S. 204 (2002). However, the

district court, in allowing Liberty's claim, relied on Sereboff v.

Mid Atlantic Medical Services, Inc., in which the Court reached the

opposite result and allowed a plan to recover for overpayment of

medical expenses when the claimant received money from a third

party in tort. 547 U.S. 356 (2006).

In Knudson, the funds recovered in the suit were not

actually in the possession of the plan beneficiaries; rather, they

had been placed into a "Special Needs Trust" under California law.

534 U.S. at 214. Thus, the Court held that the plan's monetary

claim against the beneficiaries would effectively operate as "the

imposition of personal liability for the benefits that [the plan]

conferred upon [the beneficiaries]," which was a legal rather than

equitable claim. Id. In contrast, in Sereboff, the beneficiaries

had deposited the proceeds from the suit into their personal

investment account, and the plan specifically asserted a claim for
-34-

some portion of those funds. 547 U.S. at 360, 362-63. Thus, the

Court held that the claim was a type of "equitable restitution"

because it was for "specifically identifiable funds that were

within the possession and control of the Sereboffs." Id. at 362-63

(internal quotation marks omitted).

We find that Sereboff, rather than Knudson, controls in

this case. Here, like in Sereboff, the LTD Plan targets specific

funds for recovery -- Cusson's LTD payments -- and identifies the

specific portion to which Liberty is entitled -- the amount of the

overpayment while Cusson was receiving benefits under the LTD Plan.

We are persuaded by the Eighth Circuit's holding in a similar case

that a claim such as this is a claim for equitable relief. See

Dillard's Inc. v. Liberty Life Assurance Co., 456 F.3d 894, 901

(8th Cir. 2006) (finding that Liberty's claim was equitable when it

sought "a particular share of a specifically identified fund -- all

overpayments resulting from the payment of social security

benefits"). Moreover, unlike in Knudson, the SSDI benefit was paid

to Cusson rather than into a separate trust over which she has no

control. It is true that, unlike the insurer in Sereboff, Liberty

has not identified a specific account in which the funds are kept

or proven that they are still in Cusson's possession. However, the

Court in Sereboff noted "'the familiar rul[e] of equity that a

contract to convey a specific object even before it is acquired

will make the contractor a trustee as soon as he gets a title to
-35-

the thing.'" 547 U.S. at 363-64 (quoting Barnes v. Alexander, 232

U.S. 117, 141 (1914)). Here, the contract between Cusson and

Liberty put Cusson on notice that she would be required to

reimburse Liberty for an amount equal to what she might get from

Social Security. We therefore find that Liberty's counterclaim is

an equitable claim and is allowed under 29 U.S.C. § 1132(a)(3).

Cusson further argues that Liberty's claim is barred

under the Social Security Act, Title II, 47 U.S.C. §§ 401 et seq.

The Act provides, in relevant part:

The right of any person to any future payment

under this title shall not be transferable or

assignable, at law or in equity, and none of

the moneys paid or payable or rights existing

under this title shall be subject to

execution, levy, attachment, garnishment, or

other legal process, or to the operation of

any bankruptcy or insolvency law.

42 U.S.C. § 407(a). The district court held that this section of

the Act only applies to future payments, and not to retroactive

payments. However, Cusson argues that the reference to "moneys

paid or payable" indicates that the statute's protections apply to

all payments, whether future payments or retroactive payments.

We agree with the district court that 42 U.S.C. § 407(a)

does not bar Liberty's claim. However, we disagree with the

district court's reasoning in reaching this conclusion. The

district court held that because the statute bars the transfer or

assignment of the right to "future payment," it did not bar claims

for retroactive payments. However, the statute clearly goes on to
-36-

say that "none of the moneys paid or payable . . . shall be subject

to execution, levy, attachment, garnishment, or other legal

process." Id. Thus, the protections afforded by § 407(a) apply to

retroactive SSDI payments. See Philpott v. Essex County Welfare

Bd., 409 U.S. 413, 416 (1973) (holding that a state could not

recover SSDI benefits paid because "the protection afforded

by § 407(a) is to 'moneys paid'"); Hoult v. Hoult, 373 F.3d 47, 56

(1st Cir. 2004) ("There is no question that § 407(a) . . . applies

to benefits after they have been distributed to beneficiaries.").

Instead, we find that § 407(a) does not bar Liberty's

claim because Liberty is not attempting to recover Cusson's SSDI

benefits. Rather, Liberty seeks to recover in equity from funds

Liberty itself already paid under the LTD plan. Although the

amount in question happens to be the same as the amount of Cusson's

retroactive SSDI payment, the funds Liberty is targeting do not

come from SSDI, and thus § 407(a) does not prohibit Liberty's

claim. See Holmstrom v. Metro. Life Ins. Co., 615 F. Supp. 2d 722,

753 (N.D. Ill. 2009) (collecting cases in which courts have held

that § 407(a) does not bar recovery for overpayment).

III. Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

Affirmed.