Stephanie Dorris v. Unum Life Insurance Company of ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1701
STEPHANIE DORRIS,
Plaintiff-Appellant,
v.
UNUM LIFE INSURANCE COMPANY
OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:16-cv-00508 — Staci M. Yandle, Judge.
____________________
ARGUED NOVEMBER 7, 2019 — DECIDED FEBRUARY 3, 2020
____________________
Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Courts and practitioners frequently
say that § 502 of the Employee Retirement Income Security
Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), provides for “de novo
review” of certain decisions relating to welfare plan benefits.
That phrase is really a misnomer. At least in this circuit,
ERISA de novo review requires no review at all, but an inde-
pendent decision. In such a case, the plaintiff bears the burden
2 No. 19-1701
of proving not that the plan administrator erred, but that she
is entitled to the benefits she seeks.
Stephanie Dorris did not fully recognize her burden. After
her disability insurance provider, Unum Life Insurance Com-
pany of America, terminated her benefits, she fought hard to
prove that Unum’s explanation for its decision was wrong.
She convinced the district court that it was, so the court pro-
ceeded to decide whether Dorris was then entitled to benefits.
It saw barely a thing in the administrative record going to that
question, and no attempt from Dorris to supplement the rec-
ord. Based on this lack of evidence, the court entered judg-
ment in Unum’s favor. On appeal, Dorris contends that some
of the evidence proved her entitlement to benefits, or alterna-
tively, that the district court should have given her the oppor-
tunity to supplement the record after judgment. Because we
see no clear error in the district court’s factual findings nor an
abuse of discretion in its decision to limit itself to the record
before it, we affirm the judgment.
I. Background
About two decades ago, Dorris served as the president of
Beans Plus, Inc., which offered its employees a long-term dis-
ability insurance plan through Unum. The plan covered em-
ployees who met a three-pronged definition of disability.
Under the first prong, the employee had to demonstrate
that, “because of injury or sickness,” she “cannot perform
each of the material duties of [her] regular occupation.” This
showing alone would be enough for the employee to obtain
benefits for the first two years of her disability.
To maintain benefits after two years, an employee was re-
quired to provide Unum proof of continued disability under
No. 19-1701 3
either one of the remaining two prongs. If she proceeded un-
der the second, she would have to show that she “cannot per-
form each of the material duties of any gainful occupation for
which [she is] reasonably fitted by training, education, or ex-
perience.” We refer to this as the “any occupation” option. Al-
ternatively, under the third prong, she could show that she is
(a) “[p]erforming at least one of the material duties of [her]
regular occupation or another occupation on a part-time or
full-time basis,” and (b) “[c]urrently earning at least 20% less
per month than [her pre-disability income] due to that same
injury or sickness.” This we call the “20% less” option.
A. Dorris’s Disability
Throughout the 1990s and 2000s, Dorris suffered from se-
vere pain linked to endometriosis. This pain eventually be-
came disabling, which prevented her from continuing her du-
ties as Beans Plus’s president, and Unum started paying her
benefits in 2002. A few years later, a doctor diagnosed Dorris
with Lyme disease as well. By 2007, the Social Security Ad-
ministration agreed that her Lyme disease, endometriosis,
and other impairments were disabling and granted benefits.
As far as the record shows, the Social Security Administration
never sought additional evidence from Dorris after 2007.
Unum, in contrast, would frequently review Dorris’s case
to check for her continued disability. In 2013, its review led it
to maintain benefits, but its consultant noted that Dorris’s
functional abilities were improving and, if this persisted, she
might be able to return to work. By this point her endometri-
osis symptoms had subsided and her primary diagnosis had
shifted to Lyme disease.
4 No. 19-1701
Unum reviewed Dorris’s case again in 2015, starting with
a phone call to Dorris to ask how she was faring. She told
Unum that she was improving and had started golfing nine
holes a week and volunteering. She had a three-hour weekly
shift as a docent for the St. Louis Zoo and a position as treas-
urer of a non-profit called Art on the Square, which ran an
annual art show. Unum’s sleuthing revealed she was also an
active member of a group protesting a hospital’s decision to
move out of Belleville, Illinois.
Dorris’s doctors also provided information to Unum. Her
Lyme disease specialist, Dr. Steven Harris, informed Unum
that Dorris was still experiencing fatigue, headaches, nausea,
dizziness, insomnia, and joint and muscle pain because of her
Lyme disease. His records noted both improvements and re-
gressions in Dorris’s self-reports.
Unum later sent a letter to Dr. Harris in which it defined
the terms “light” and “sedentary” work consistent with the
Department of Labor’s Dictionary of Occupational Titles and
the Social Security Administration’s regulations, 20 CFR
§ 404.1567(a)–(b), and asked if Dorris could work at either
level of exertion. He responded that she could perform sed-
entary work part-time, no more than four hours a day and
with frequent breaks and absences. Under a line asking him
to identify the limitations supporting his opinion, Dr. Harris
wrote “N/A.” When Unum followed up, Dr. Harris elabo-
rated that Dorris suffered from “extreme fatigue” and “major
memory and cognitive issues” (as well as nausea, migraines,
cramps, and aches), so she could not work at all, for fear of
stress exacerbating her symptoms. Dorris’s other doctors, in-
cluding her primary care physician, deferred to Dr. Harris.
No. 19-1701 5
With Dorris’s medical records in hand, Unum hired two
consulting physicians to review the file to see whether she
could return to her regular occupation as a president—a sed-
entary job that required, among other things, the frequent use
of mental functions. The first doctor determined that the evi-
dence did not show limitations that would preclude such
work. He acknowledged that Dorris continued to complain of
fatigue and pain, but thought her reported activities were out
of proportion to her complaints. He ruled out ongoing Lyme
disease as a disabling impairment because he saw no evi-
dence of an active infection. The second consulting physician
concurred. He too doubted that Dorris had Lyme disease and
found that whatever fatigue she had did not preclude her ac-
tive lifestyle. Shortly thereafter, Unum ended Dorris’s bene-
fits because it concluded that she could perform the duties of
her regular occupation.
B. Administrative Appeal
Dorris appealed, criticizing Unum’s apparent focus on
only the physical demands of being a president. She had
worked 70-hour weeks, she asserted, and needed constant
mental focus during that time. Furthermore, she noted that
Unum had never considered whether she could meet the
standards of the any occupation or 20% less options.
In her appeal, she offered new evidence and qualified her
activities. She explained that she missed golf matches, docent
shifts, and protests frequently. And, as treasurer for Art on the
Square, she worked only one hour a week, with no deadlines.
Fellow volunteers wrote letters to support her story. Dr. Har-
ris also supplemented his opinion of Dorris’s limitations. Re-
turning to the long hours and stressful work of a president
6 No. 19-1701
would increase Dorris’s symptoms, he said, and her limited
activities did not undermine that conclusion.
Unum obtained another consulting physician, Dr. Scott
Norris, for its appeal review. He agreed with the prior con-
sultants that Dorris likely was not suffering from Lyme dis-
ease and could work as a president. Unum’s vocational con-
sultant, Richard Byard, then updated the definition of the ma-
terial duties of a president to reflect a need to work more than
forty hours a week and to travel occasionally. Dr. Norris
maintained his assessment after considering this change.
Months after Dorris submitted her appeal, Unum re-
quested that she participate in an independent medical exam-
ination at its expense. Dorris objected to this request because
Unum was taking longer to resolve her appeal than regula-
tions permitted. See 29 C.F.R. § 2560.503-1(i). Unum asked one
more time for an extension to perform an examination, re-
ceived a similar answer, and then two days later (a day before
the regulatory deadline) denied Dorris’s appeal, concluding
that she could return to her job as president.
C. District Court Proceedings
Dorris then proceeded to the district court with this suit to
recover benefits under ERISA § 502, 29 U.S.C. § 1132(a)(1)(B).
Early in the case, Dorris asked to depose Byard (the voca-
tional consultant), Dr. Norris, and three others who worked
for Unum, as well as Dr. Harris and her fellow volunteers on
her side. Unum objected and sought a protective order be-
cause these depositions would rehash evidence already in the
administrative record. Dorris admitted she wanted to depose
the witnesses for clarification purposes, and the magistrate
judge understood that to mean that Dorris was not looking to
No. 19-1701 7
introduce new evidence. Dorris could use her briefs to high-
light any problems in the record, the judge decided, and he
granted the protective order, carefully noting that his ruling
did not prevent Dorris from requesting any other discovery
consistent with Rule 26. Dorris, however, never sought any
further discovery; nor did she object to the magistrate judge’s
ruling before the district judge.
Eventually, the parties filed cross-motions for judgment
on the administrative record under Federal Rule of Civil Pro-
cedure 52. They vigorously disputed the merits of the medical
evidence and whether Dorris was disabled from her regular
occupation as president. Unum argued that Dr. Harris was
exaggerating (if not fabricating) his assessment; Dorris criti-
cized Unum’s doctors for lacking expertise in Lyme disease.
The other prongs of the plan’s disability definition fell to the
wayside. Unum all but ignored the 20% less option and re-
ferred only occasionally to the any occupation option. It
rested on its physician’s conclusions that Dorris could per-
form the duties of president and emphasized that it was Dor-
ris who carried the burden of proof on all issues.
Dorris did not dispute the placement of this burden, but
nevertheless drew attention to the lack of vocational evidence
in the record. Unum had never considered what occupations
for which she was reasonably fitted or, for that matter, the ma-
terial duties of any job other than president, as relevant to the
any occupation option. She offered nothing of her own on
these points. Her resume was the only evidence she cited, and
it essentially listed job titles: president, staff accountant, sen-
ior litigation consultant, chief financial officer, corporate con-
troller, and vice president of finance. She asserted, without
8 No. 19-1701
evidence, that each of these jobs required “working 55–70
hours a week, 5–7 days a week, 48–50 weeks per year.”
Her arguments based on the 20% less option were conclu-
sory—she simply declared that she met that definition with-
out identifying how. The closest she came to an explanation
was a single line, in the fact section of her response brief,
where she said her treasurer work “included a few of the ma-
terial duties of a CPA/Accountant, such as paying bill[s] and
reconciling bank accounts.” The remainder of her factual ac-
count, like her administrative appeal, focused on how little—
not what—she did as a volunteer.
Besides the administrative record, the only other evidence
either party submitted related to Dr. Harris’s qualifications.
Unum provided documents regarding another patient’s accu-
sation that he had committed malpractice in the treatment of
Lyme disease and Dorris responded with evidence that the
claim was unfounded.
The district court recognized that it could consider this ad-
ditional evidence, but elected not to do so, as it did not shed
any light on any of the dispositive issues in the case. The
court, thus, limited its review to the administrative record.
The parties agreed that this review would be de novo, because
the plan gave Unum no discretion.
The court first found that Dorris could not perform the du-
ties of her regular occupation. It afforded more weight to Dr.
Harris’s opinions than those of Unum’s physicians, as Dr.
Harris was Dorris’s treating physician and had seen his pa-
tient, not just her records. Based on this evidence, the court
found that Dorris could not perform the material duties of a
president—especially the frequent use of high-level mental
No. 19-1701 9
functions for more than forty hours per week. She therefore
met the initial requirement for continuing disability.
But that did not end the court’s analysis. Looking to the
other two prongs of the plan definition, the court found noth-
ing of significance in the record. It acknowledged Dorris’s
point that Unum had not conducted a vocational analysis but
emphasized that she, not Unum, carried the burden of proof.
Dorris could have possibly met her burden with a vocational
analysis or other evidence describing the demands of other
occupations, the court said, but she produced nothing of the
sort. Her conclusory assertions were not enough for the court
to find that she met either the any occupation or 20% less op-
tions, and so it entered judgment for Unum.
Dorris timely moved to amend the judgment. Fed. R. Civ.
P. 59. She argued that the court had overlooked that both Dr.
Harris and the Social Security Administration had found her
incapable of any work, and, thus, by implication, from a gain-
ful occupation. Alternatively, she asked to reopen discovery.
The district court denied the motion. It explained that it
had not overlooked the Social Security decision nor Dr. Har-
ris’s opinions, neither of which provided the vocational evi-
dence the court was looking for and found lacking. They did
not identify the demands of relevant gainful occupations or
show that those demands were prohibitive. Regarding dis-
covery, the court found no error in its decisions. Rather, the
error Dorris was seeking to correct was her own because she
had never objected to the magistrate judge’s order.
II. Discussion
The parties do not quarrel about the general framework of
this appeal. Because the plan did not give Unum discretion,
10 No. 19-1701
the district court appropriately reviewed the administrative
record de novo under the Supreme Court’s decision in Fire-
stone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). In turn,
we accept the district court’s factual findings unless clearly
erroneous. Fed. R. Civ. P. 52(a)(6); Cheney v. Standard Ins. Co.,
831 F.3d 445, 450 (7th Cir. 2016).
Unum does not challenge the district court’s finding that
Dorris was incapable of working as a president. We, therefore,
accept that finding. The question then is what happens next.
The plan definition of disability does not stop at whether Dor-
ris can return to her regular occupation. It also asks about her
capacity to work other occupations. Neither party seriously
addressed these issues in the administrative proceedings or in
the district court, so the record is essentially silent on them.
We, like the district court, must decide who that impacts.
The answer lies in the concept of ERISA de novo review,
which we have described as a “misleading phrase.” Krolnik v.
Prudential Ins. Co. of Am., 570 F.3d 841, 843 (7th Cir. 2009). The
confusion comes from the word review, “[f]or what Firestone
requires is not ‘review’ of any kind; it is an independent deci-
sion,” akin to a contract dispute. Id.; Diaz v. Prudential Ins. Co.
of Am., 499 F.3d 640, 643 (7th Cir. 2007); see also Cheney, 831
F.3d at 450 (interpreting policy terms under federal common
law and general principles of contract interpretation). So, we
have said that what happened before the plan administrator
is irrelevant in a de novo review case. Marantz v. Permanente
Med. Grp., Inc. Long Term Disability Plan, 687 F.3d 320, 328 (7th
Cir. 2012); Diaz, 499 F.3d at 643. The court can limit itself to
deciding the case on the administrative record but should also
freely allow the parties to introduce relevant extra-record ev-
idence and seek appropriate discovery. Marantz, 687 F.3d at
No. 19-1701 11
328; Krolnik, 570 F.3d at 843; Patton v. MFS/Sun Life Fin. Dis-
tribs., Inc., 480 F.3d 478, 490 (7th Cir. 2007). The plaintiff is the
one who is obligated to prove she is entitled to benefits, so any
gaps in the record cut against her claim. Cheney, 831 F.3d at
451; Ruttenberg v. U.S. Life Ins. Co., 413 F.3d 652, 663 (7th Cir.
2005). She should be permitted to patch these gaps before the
court reaches final judgment.1
By contrast, in ERISA benefits claims subject to arbitrary
and capricious review because the plan gives the administra-
tor discretion, we generally do not look to any evidence be-
yond what the administrator considered. E.g., Dragus v. Reli-
ance Standard Life Ins. Co., 882 F.3d 667, 674 (7th Cir. 2018). In
such a case, it is the administrator’s burden to provide an ex-
planation for its decision consistent with the record and
ERISA. Tate v. Long Term Disability Plan for Salaried Emps. of
Champion Intʹl Corp. No. 506, 545 F.3d 555, 561 (7th Cir. 2008),
abrogated on other grounds by Hardt v. Reliance Standard Life Ins.
Co., 560 U.S. 242 (2010). If the administrator did not explore
an issue that it should have, a court typically does not enter
final judgment on the underlying claim but remands so that
the administrator can reconsider. Id. at 563.
The consequences of the different approaches are easily
demonstrated. In Pakovich v. Broadspire Services, Inc., 535 F.3d
601 (7th Cir. 2008), we addressed a case in a nearly identical
1 The Courts of Appeals have divergent views of how and when a dis-
trict court can accept evidence outside of the administrative record in de
novo review cases and some prohibit it entirely. See, e.g., Ariana M. v. Hu-
mana Health Plan of Tex., Inc., 884 F.3d 246, 256 (5th Cir. 2018) (en banc)
(describing circuit split and prohibiting extra-record evidence); Patton, 480
F.3d at 490 & n.7 (collecting cases). Our position is settled and Dorris does
not argue otherwise or ask us to revisit this issue.
12 No. 19-1701
posture to this one except under arbitrary and capricious re-
view. Like Unum, the administrator had terminated disability
benefits because it concluded that Pakovich could perform
her own occupation. Id. at 603. As here, the district court dis-
agreed and moved on to the second requirement of disability
under the plan: whether Pakovich could perform the func-
tions of “any occupation.” Id. The administrator had not con-
sidered or addressed this issue, and the district court found
no evidence in the record supporting such a finding, so it en-
tered judgment for the defendant. Id. We reversed. Because
the administrator had not reached the issue of Pakovich’s eli-
gibility under the “any occupation” standard, the record was
undeveloped on this point, and the district court had “noth-
ing to review.” Id. at 607. We therefore sent the case back to
the administrator to address the issue in the first instance. Id.
The district court here, too, had an undeveloped record re-
garding the any occupation and 20% less options. But unlike
in Pakovich, the court’s lack of a decision to review was not a
hindrance, because it was not tasked with reviewing anything
in the first place. The question it had to answer was whether
Dorris was entitled to benefits. In addressing that question,
Dorris, as the plaintiff, carried the burden of proof, absent
contrary language in the plan. Accordingly, the court could
not resolve any gaps in the record in her favor. Cheney, 831
F.3d at 451. If neither party sought to produce necessary evi-
dence, then judgment was properly entered in Unum’s favor.
Dorris contends that vocational evidence was not neces-
sary to satisfy the any occupation prong and, so, the district
court erred in demanding it. She relies on our decision in Tate,
where we said that “there is nothing in our case law” requir-
ing a claimant to provide vocational evidence “as long as she
No. 19-1701 13
provides evidence that she has an impairment that affects her
ability to work.” 545 F.3d at 562. In her view, she met this re-
quirement through Dr. Harris’s opinion that she could not
perform any sedentary work and the Social Security Admin-
istration’s 2007 benefits decision, finding the same.
Dorris may be right that the district court could have ruled
in her favor even absent vocational evidence. If the medical
evidence showed that Dorris was utterly immobile and inco-
herent, we would not affirm the denial of benefits simply be-
cause a vocational expert never opined that mobility and co-
herence are valued in the job market. To demonstrate clear er-
ror, though, it is not enough for an appellant to point to evi-
dence in the record that supports her claim. Mathin v. Kerry,
782 F.3d 804, 810 (7th Cir. 2015). Dr. Harris’s opinion comes
close enough to declaring complete disability, and the Social
Security opinion does declare it, so either could have carried
Dorris’s burden. But the district court found they did not. On
clear-error review, we will affirm that finding if it is “plausible
in light of the record viewed in its entirety.” Anderson v. City
of Bessemer City, 470 U.S. 564, 573–74 (1985).
The district court’s findings were not only plausible but
eminently reasonable on this limited record. Even in the best
of circumstances, a Social Security decision is only “one more
factor for consideration in an ERISA benefits determination.”
Black v. Long Term Disability Ins., 582 F.3d 738, 748 (7th Cir.
2009). The decision here was nearly a decade old and relied
on Dorris’s endometriosis, which is no longer debilitating, so
the court justifiably discredited it.
Dr. Harris’s opinion was more recent, but the court was
not obligated to adopt it wholesale and exclude Dorris from
all sedentary jobs just because the doctor did. Instead, the
14 No. 19-1701
court gave Dr. Harris’s opinion more weight than Unum’s
doctors’ opinions only to the extent that his was supported by
evidence and explanation. Dr. Harris drew special attention
to how stress would increase Dorris’s symptoms. Without
such stress, his opinion has little else to stand on. The occupa-
tion of president is a demanding one, so the court found that
Dorris could not reliably handle it. Not all jobs are so taxing,
however, and Dorris may not have been foreclosed from some
other, easier sedentary job.
This gap is where vocational evidence became necessary.
Perhaps all “gainful” occupations for which Dorris is “reason-
ably fitted” are just as stressful as company president. She of-
fered no evidence, only assertions, on that question. She con-
tinues to insist that the only jobs for which she is reasonably
fitted are those in her resume, and that each of these jobs is
either “sedentary” or “light.” Even if she is right, no evidence
in the record shows that a “staff accountant,” for example, is
required to work any more than 40 hours a week or use her
high-level mental functions on a frequent basis, as a president
must. The job might demand that much (or more), or those
staff accountant positions that require less might pay too little
to be “gainful” for Dorris. The district court had no evidence
either way. Neither do we, so we cannot say the district court
clearly erred in finding that Dorris failed to carry her burden
under the any occupation option.2
2 Given the complete lack of vocational evidence here, we need not
consider how far a claimant’s burden goes on an “any occupation” stand-
ard or whether the burden would ever shift to the administrator to iden-
tify a job the plaintiff could perform.
No. 19-1701 15
Dorris next argues that, even if her evidence falls short un-
der the any occupation option, she meets the 20% less option.
She notes she was unemployed, so she obviously made less
than 80% of her pre-disability salary. The plan requires that
she perform “at least one of the material duties of [her] regu-
lar occupation or another occupation on a part-time or full-
time basis.” Any duty, she argues, is tautologically either a
duty of her regular occupation or another occupation. She
points to her hour a week as a volunteer treasurer as meeting
this standard. If her duties there were not those of a president,
she reasons, then they must have been the duties of some
other job. Alternatively, in her reply brief, she compares her
three-hour weekly shift as a docent to her job as a corporate
president because both require “dealing with people.”
Dorris, however, never presented an argument along
these lines to the district court. Unum, thus, contends that she
waived any argument under the 20% less option. We agree
and do not decide whether Dorris’s interpretation of the plan
is correct. See CNH Indus. Am. LLC v. Jones Lang LaSalle Ams.,
Inc, 882 F.3d 692, 704–06 (7th Cir. 2018) (declining to interpret
contractual provision not argued to district court).
A party generally waives arguments raised for the first
time on appeal. See Villas at Winding Ridge v. State Farm Fire &
Cas. Co., 942 F.3d 824, 832 (7th Cir. 2019). Even arguments that
a party presented to the district court can be waived, if they
were “underdeveloped, conclusory, or unsupported by law.”
Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012). Dor-
ris’s argument under the 20% less option was all three.
Although she asserted that she met the requirements for
the 20% less option, the district court noted that she provided
“no evidence or explanation” to support that assertion. She
16 No. 19-1701
cited no legal authority and included only one sentence of jus-
tification in the fact section of her response brief. Burying an
argument in one’s brief does not preserve it for appellate re-
view. See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991) (per curiam) (“Judges are not like pigs, hunting for truf-
fles buried in briefs.”); cf. Ajayi v. Aramark Bus. Servs., Inc., 336
F.3d 520, 529 (7th Cir. 2003) (finding appellate issue waived
when it was addressed only in statement of facts). We decline
to find that the district court clearly erred in its assessment of
an argument never actually argued to it and thereby “under-
mine the essential function of the district court.” Barnes v. City
of Centralia, 943 F.3d 826, 832 (7th Cir. 2019) (quoting Econ.
Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718,
720 (7th Cir. 2008)).
Finally, Dorris challenges the district court’s decision to
limit itself to the administrative record and to deny her mo-
tion to amend the judgment. We review both decisions for an
abuse of discretion. See Barrington Music Prod., Inc. v. Music &
Arts Ctr., 924 F.3d 966, 968 (7th Cir. 2019) (motion to amend
judgment); Patton, 480 F.3d at 490 (limitation of record).
According to Dorris, it was inconsistent for the district
court to find that the administrative record provided an ade-
quate basis for its decision and to then rule against her be-
cause the record was underdeveloped. We see no incon-
sistency because Dorris never offered—and the court never
rejected—relevant extra-record evidence. All the court had
before it was the extraneous evidence of Dr. Harris’s alleged
malpractice. No one argues that it was error to exclude that.
This is not a case like Krolnik, where the district court de-
nied reasonable discovery and refused to consider even evi-
dence the plaintiff procured at his own expense. 570 F.3d at
No. 19-1701 17
843. Dorris offered nothing and sought only duplicative dis-
covery, which the magistrate judge properly denied. See id. In
doing so, he noted that the protective order would not stop
Dorris from seeking any other discovery consistent with the
rules of civil procedure. She elected not to seek anything fur-
ther. Moreover, Dorris never objected to the protective order,
and ʺ[a] party may not assign as error a defect in the [magis-
trate judge’s] order not timely objected to.” Fed. R. Civ. P.
72(a); Davis v. Kayira, 938 F.3d 910, 916 (7th Cir. 2019).
The district court also was not obligated to reopen discov-
ery after the judgment. A motion to amend the judgment un-
der Rule 59 is not “a vehicle for a party to undo its own pro-
cedural failures.” Barrington Music Prods., 924 F.3d at 968
(quoting Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th
Cir. 2013)). Dorris appears to have believed that the lack of
vocational evidence in the record favored her. She was wrong.
Unum’s motion for judgment emphasized that it was her bur-
den to prove entitlement to benefits under the plan and ar-
gued that she failed to meet that burden. If this burden was a
surprise, she could have moved to reopen discovery when
Unum sought judgment. She was not entitled to wait until af-
ter Unum won. See Cincinnati Life, 722 F.3d at 954 (affirming
denial of Rule 59 motion when appellant mistakenly believed
issue was outside scope of district court proceedings).
III. Conclusion
The district court was presented with an underdeveloped
administrative record. From this record, it concluded that
Dorris failed to carry her burden, as the plaintiff, to demon-
strate she was entitled to benefits. We see no clear error in that
finding or abuse of discretion in the limitation of its review to
the administrative record. We therefore affirm the judgment.