Tsoulas v. Liberty Life Assurance Co.

United States Court of Appeals
For the First Circuit

No. 05-2668

KATHERINE L. TSOULAS,

Plaintiff, Appellant,

v.

LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Circuit Judge,
Hug,* Senior Circuit Judge,
and Lynch, Circuit Judge.

Arthur J. Greif, with whom Julie D. Farr and Gilbert & Greif,
P.A. were on brief, for appellant.
Eric J. Uhl, with whom Moon, Moss & Shapiro, P.A. was on
brief, for appellee.

July 11, 2006

*
Of the Ninth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. In February 1998, Plaintiff

Katherine L. Tsoulas ("Tsoulas") became an employee of Medaphis

Corporation ("Medaphis") as a Manager of Educational Services. A

benefit of her employment was insurance coverage under a group

disability policy ("the Plan") provided by Liberty Life Assurance

Company of Boston ("Liberty"). Liberty is both the insurer for the

Plan and the claims fiduciary.1 Tsoulas applied for and received

short-term disability benefits beginning on September 15, 1998

because symptoms of Multiple Sclerosis ("MS") had rendered her

unable to work. In March 1999, she applied for and received long-

term disability benefits until Liberty discontinued them on

March 31, 2004.

Tsoulas filed this action in Maine Superior Court against

defendant Liberty, alleging the wrongful termination of her

benefits under 29 U.S.C. § 1132, the civil enforcement section of

the Employee Retirement Income Security Act ("ERISA"). Liberty

removed the action to federal court on November 8, 2004. The

United States District Court for the District of Maine granted

Liberty's Motion for Judgment on the Stipulated Record on

October 27, 2005. Tsoulas now appeals.

1
Throughout her brief, Tsoulas refers to Liberty as the "plan
administrator" rather than the "claims fiduciary," although the
latter is technically correct. The distinction has no legal
implications for the purposes of this opinion.

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 I. Facts

We describe the stipulated facts of record. In April

1998, Dr. Kathryn Isaac ("Dr. Isaac"), a staff physician in the

Department of Neurosciences at the Stanford University Medical

Center, performed the first neurological evaluation of Tsoulas.

Dr. Isaac's evaluation revealed that Tsoulas was experiencing

"worsening tremors" and blackouts. Other symptoms included

"numbness down the right leg and arm" and "fatigue." Dr. Isaac

reported that Tsoulas's tremor "appears to be psychogenic" and

opined that she would "clearly need psychiatric consultation as

well." Magnetic Resonance Imaging (MRI) scans from 1995 and 1997

exhibited two to three brain lesions of unclear etiology. Dr.

Isaac reviewed them with a neuro-radiologist, who concluded that

the lesions were "not completely typical for multiple sclerosis."

Dr. Isaac concluded that she did not believe Tsoulas's symptoms

were consistent with a diagnosis of MS.

Dr. Leslie Dorfman ("Dr. Dorfman"), Professor of

Neurology and Director of the MS Clinic at the Stanford University

Medical Center, examined Tsoulas in May of 1998 and concluded that

"[a]lthough the diagnosis is not completely certain, I think it is

likely on the basis of the clinical history and the MRI findings

that this woman has relatively mild multiple sclerosis, relapsing-

remitting form." In addition, Dr. Dorfman determined that Tsoulas

was "suffering from an anxiety disorder, and that some of the

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symptoms which are currently most troublesome to her are related to

this, rather than to her MS." Dr. Dorfman recommended follow-up by

a neurologist for MS, potential use of corticosteroids for MS

exacerbations, and "ongoing concurrent treatment for her anxiety

disorder."

In September of 1998, Tsoulas saw Dr. Annette Langer-

Gould ("Dr. Langer-Gould"), Acting Director of Stanford University

Medical Center's MS Clinic. Dr. Langer-Gould concluded that

"although she clearly has multiple sclerosis, she also has a

psychiatric condition for which she needs to continue seeking

treatment. Initially she refused to do this and . . . vehemently

denied that she had any psychological problems." One month later

in a follow-up visit, Dr. Langer-Gould wrote that Tsoulas was

suffering from MS and a conversion disorder.2 Although Tsoulas was

"clearly . . . under tremendous psychological stress," Dr. Langer-

Gould told her it was appropriate for her to return to work on a

part-time basis. Tsoulas responded that she had discussed the

possibility of part-time work with her employer and that it was not

an option.

Based on her physicians' recommendations, Tsoulas saw

Joyce Brothers Kart, M.F.C.C. ("Ms. Kart") for psychotherapy on

2
A conversion disorder is a "rare psychiatric illness in which
emotional stress or conflict is expressed through physical
symptoms."
http://www.mayoclinic.com/health/conversion-disorder/AN00622.

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four occasions beginning in January 1999 and ending in March 1999.

Ms. Kart observed that "[i]t has been extremely difficult for her

to function normally . . . . It is very unclear when she will be

able to resume active employment due to her symptoms." There is no

evidence that Ms. Kart or any other mental health professional has

evaluated Tsoulas since March 5, 1999.

In July 1999, Dr. Cathleen Miller ("Dr. Miller") examined

Tsoulas and concluded that Tsoulas had "relapsing/remitting

multiple sclerosis," but that Tsoulas was "alert and attentive with

normal speech and language, and no gross cognitive deficits." Her

self-reported symptoms included "episodic worsening of her

tremulousness associated with heightened anxiety and bowel

incontinence as well as fatigue and impaired balance." Dr. Miller

observed that "her current tremor is difficult to characterize, and

there is a degree of embellishment noted on examination today."

Nevertheless, Dr. Miller wrote to Tsoulas's primary care physician,

Dr. Leslie Finder ("Dr. Finder"), that Tsoulas was "greatly

disabled at this time of our first meeting."

In October 1999, Liberty sent a questionnaire to Dr.

Finder seeking information about Tsoulas's disability. Dr. Finder

reported that Tsoulas's primary diagnosis was MS, and that he

expected that she would "never" regain either full or modified

function. In February 2001, Liberty sent a nurse, Christine

Entrekin ("Nurse Entrekin"), to conduct a home visit with Tsoulas

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to assess her ongoing disability. Nurse Entrekin observed that

Tsoulas was "significantly impaired due to physical limitations as

well as [Tsoulas's] own assertions of deteriorating mental status.

Prognosis for recovery does not appear favorable."

In August 2001, Tsoulas began to receive chiropractic

care from Dr. Deborah Baker ("Dr. Baker"). Dr. Baker placed some

restrictions on Tsoulas's ability to reach, grasp, pull, push,

climb, kneel, bend, squat, walk, stand, conduct repetitive motions,

and lift between ten and forty pounds. The only complete

restriction she imposed was against lifting forty or more pounds.

In October 2001, Dr. Susan O'Connor ("Dr. O'Connor"), a

surgeon, examined Tsoulas in connection with a palpable abnormality

of her left breast. Dr. O'Connor removed the abnormality on

October 26, 2001, and the diagnosis of breast cancer was confirmed.

After the third and final post-operative checkup on August 21,

2002, Dr. O'Connor reported that Tsoulas no longer had any physical

restrictions in connection with her breast cancer diagnosis.

As part of its ongoing review of Tsoulas's claim for

continued long-term disability benefits, Liberty began planning to

conduct surveillance in January 2004. Byers Confidential

Investigations ("BCI") conducted the first surveillance on five

consecutive days from February 10 through February 14, 2004. On

February 12, while the BCI surveillance was ongoing, Tsoulas

submitted responses to a routine activities questionnaire

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indicating the following: 1) she was completely unable to walk or

stand without the assistance of a cane, a wheelchair, or a scooter;

2) she spent fourteen to eighteen hours in bed each day; 3) she was

able to drive a car only "very little"; 4) she left the house "zero

to one" times per week; 5) she never left the house on weekends; 6)

she never went shopping at the mall; and 7) she accomplished

grocery shopping only with the aid of her son.

The surveillance videos revealed that between February 10

and 14, Tsoulas 1) drove her car unassisted; 2) walked without the

aid of a cane, wheelchair, or scooter; 3) completed errands by

herself and without any assistive devices; 4) walked down a few

steps; 5) conducted banking activities without any assistance; 6)

shopped at the mall and the video store; and 7) went grocery

shopping, pushed a grocery cart, and loaded and unloaded groceries.

Because there appeared to be significant discrepancies

between Tsoulas's self-reported limitations and the video footage,

Liberty determined that additional surveillance was necessary.

Omega Insurance Services ("Omega") conducted surveillance from

March 10 to March 14, 2004. Omega's report revealed Tsoulas: 1)

traveling to a tanning salon, a bank, a donut shop, a nail salon,

and back to her residence in a single day; 2) walking, driving,

entering and exiting a car, and entering and exiting various

establishments without the assistance of any braces, supports, or

other devices; 3) traveling to a hotel, a parking garage, a

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restaurant, a comedy club, a night club, and back to the hotel on

a single day; 4) traveling to a restaurant, a furniture store,

various gift shops, a coffee shop, and a residence in a single day.

After Omega's surveillance was completed, Liberty

referred Tsoulas's file to independent consulting physician Dr.

John Holbrook ("Dr. Holbrook"), who concluded, based on his

examination of her clinical file and the surveillance information,

that the diagnosis of MS had "not been conclusively established"

and that the majority of Tsoulas's symptoms were "either self-

reported, unwitnessed, or unable to be objectively validated." He

stated that although she might have undergone a period of

psychological stress between 1998 and 1999, recent evidence

suggested that she had recovered sufficient functional capacity to

be "capable of at least full-time light work."

In March of 2004, Liberty wrote a letter to Tsoulas,

terminating her long-term disability benefits, effective March 31.

The letter detailed the discrepancies between Tsoulas's self-

reported limitations and her actual abilities, as captured by the

surveillance videos. The letter also summarized Dr. Holbrook's

findings.

On April 30, Tsoulas appealed the termination of her

benefits and submitted new material to Liberty to bolster her

claim. Liberty then forwarded Tsoulas's file to a second

independent consulting physician, Dr. Eric Erlbaum ("Dr. Erlbaum").

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Dr. Erlbaum reviewed the file and the surveillance videos,

concluding that "the primary diagnosis is most likely psychiatric

in nature" and the "second diagnosis is a mild form of multiple

sclerosis." Dr. Erlbaum opined further that the surveillance video

"would suggest that the claimant is available for full time work of

her choosing" and that "her physical condition appears to play a

very small role, if any, in limiting her physical capacity." In a

letter dated August 17, Liberty denied Tsoulas's appeal of its

termination of her long-term disability benefits. Liberty pointed

out that although Tsoulas might have significant psychiatric

issues, she had not presented a psychiatric record and she was not

claiming a disability based on a psychiatric impairment. Without

such a record, Liberty was unable to determine whether she had a

psychiatric impairment preventing her from meeting her

responsibilities "as an Education/Training Manager" at Medaphis.

II. Analysis

Tsoulas claims that the district court erred by granting

judgment for Liberty on the stipulated record. First, she

maintains that the district court applied the wrong standard of

review to Liberty's termination of her benefits. Second, she

argues that Liberty's decision to terminate her benefits was not

supported by substantial evidence. We will address each argument

separately.

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 Our standard of review is governed by the fact that the

parties submitted this case to the district court based on a

stipulated record. Ordinarily, because summary judgment motions

require the trial judge to make legal determinations, we review

summary judgment decisions de novo. Reich v. John Alden Life Ins.

Co., 126 F.3d 1, 6 (1st Cir. 1997). However, we have held that,

"[i]n a nonjury case, when the basic dispute between the parties

concerns only the factual inferences that one might draw from the

more basic facts to which the parties have agreed . . . '[t]he

standard for appellate review . . . shifts from de novo review to

clear-error review.'" García-Ayala v. Lederle Parenterals, Inc.,

212 F.3d 638, 643-44 (1st Cir. 2000) (quoting United Paperworkers

Int'l Union, Local 14 v. Int'l Paper Co., 64 F.3d 28, 31 (1st Cir.

1995)). The Supreme Court has articulated the clearly erroneous

standard thus:

If the district court's account of the
evidence is plausible in light of the record
viewed in its entirety, the court of appeals
may not reverse it even though convinced that
had it been sitting as the trier of fact, it
would have weighed the evidence differently.
Where there are two permissible views of the
evidence, the factfinder's choice between them
cannot be clearly erroneous.

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74

(1985). We review the district court's legal conclusions de novo,

Lockheed Martin Corp. v. RFI Supply, Inc., 440 F.3d 549, 552 (1st

Cir. 2006), but we will set aside the district court's factual

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inferences "only if they are clearly erroneous." United

Paperworkers, 64 F.3d at 31.

A. Arbitrary and Capricious Standard

When a denial of insurance benefits is challenged under

ERISA, courts review the insurer's decision de novo "unless the

benefit plan gives the administrator or fiduciary discretionary

authority to determine eligibility for benefits." Firestone Tire

and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Where, as here,

the plan confers such authority upon the fiduciary, the decision is

upheld "unless it is 'arbitrary, capricious, or an abuse of

discretion.'" Wright v. R.R. Donnelley & Sons Co. Group Benefits

Plan, 402 F.3d 67, 74 (1st Cir. 2005) (quoting Doyle v. Paul Revere

Life Ins. Co., 144 F.3d 181, 183 (1st Cir. 1998)).

Tsoulas claims that the district court improperly applied

the deferential "arbitrary and capricious" standard to Liberty's

termination of her benefits. Specifically, Tsoulas argues that

because Liberty is both the insurer and the claims fiduciary -- and

any finding of eligibility means Liberty will need to pay benefits

out of its own pocket -- its decision was compromised by an

inherent conflict of interest. Citing Wright, Tsoulas alleges that

Liberty's decision should have been subject to a heightened

standard of review because, "if a court concludes there is an

improper motivation amounting to a conflict of interest, the court

may cede a diminished degree of deference -- or no deference at all

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-- to the administrator's determinations." 402 F.3d at 74

(citation and internal quotation marks omitted).

We have held that no automatic conflict of interest

arises to elevate the standard of review where, as here, "a finding

of eligibility means that the insurer will have to pay benefits out

of its own pocket." Pari-Fasano v. ITT Hartford Life and Acc. Ins.

Co., 230 F.3d 415, 418 (1st Cir. 2000). Instead, under such

circumstances, courts should apply "the arbitrary and capricious

principle, with special emphasis on reasonableness, but with the

burden on the claimant to show that the [insurer's] decision was

improperly motivated." Id. (citation and internal quotation marks

omitted).

Tsoulas asserts two separate arguments to demonstrate

that Liberty was improperly motivated. First, she alleges that

Liberty undertook the surveillance for the purpose of terminating

her benefits. Second, she claims that Liberty engaged in a

"selective review" of the administrative record to the exclusion of

other evidence.

Tsoulas claims that because there was no change in her

condition that could have given rise to suspicion, Liberty must

have undertaken the surveillance efforts for the purpose of

terminating her benefits. Liberty in turn points out it has made

"consistent and continued efforts" to obtain objective evidence of

Tsoulas's functional limitations in light of the fact that

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Tsoulas's own medical providers have repeatedly made contradictory

findings regarding her condition. Liberty's claim examiner

suggested surveillance as early as September 2000 to "either

confirm or call into question" Tsoulas's condition, and Liberty's

claim file contains several other references to the need for

further information regarding Tsoulas's condition. Further, in its

letter to Tsoulas terminating her benefits, Liberty explained that

it initiated surveillance when -- despite her self-reported need

for a cane and her alleged memory and concentration difficulties --

she appeared in a January 2004 newspaper photograph standing

unaided by a cane and she wrote and submitted an article to the

National MS Society website. The district court dismissed

Tsoulas's allegation that Liberty initiated surveillance with an

improper motive as being "without merit," finding that it was

"equally, if not more likely . . . that Liberty initiated

surveillance to objectively document whatever her activity level

turned out to be." We agree. There is no indication that Liberty

undertook the surveillance with the intention of terminating her

benefits.

Tsoulas next claims that Liberty engaged in a "selective

review" of the medical evidence and the administrative record to

the exclusion of other evidence. She claims that Liberty "ignored"

the pattern of deterioration and "glossed over" her own doctors'

opinions of her disability. This argument is unavailing. The

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Supreme Court has held that "[n]othing in [ERISA] . . . suggests

that plan administrators must accord special deference to the

opinions of treating physicians." Black & Decker Disability Plan

v. Nord, 538 U.S. 822, 831 (2003). Further, it is not "for a court

to determine precisely how much weight [an insurer] should have

accorded [a particular piece of evidence] in its overall decision."

Gannon v. Metro. Life Ins. Co., 360 F.3d 211, 214 (1st Cir. 2004).

Tsoulas next claims that Liberty failed to share with Dr.

Erlbaum the supplemental materials she submitted to Liberty after

the termination of her benefits. This allegation appears to be

totally baseless. In fact, Dr. Erlbaum's report specifically

mentions at least two of the supplementary pieces of evidence in

question: a brain MRI report from August 2003 and a report from

neurologist Dr. T. Edward Collins. The district court inferred

from these references that Liberty had sent the entire file to Dr.

Erlbaum for review, and we find no error.

Tsoulas also alleges that Liberty itself "did not engage

in any substantive review" of that supplemental evidence, an

argument that appears similarly meritless. Liberty extended the

deadline to permit Tsoulas to submit additional information to

support her appeal, at one point noting that "[t]o date [Tsoulas

has] forwarded one medical report and several letters from various

persons describing [her] physical impairments caused by MS." The

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record simply does not support her contention that Liberty did not

evaluate the supplementary evidence.

As we have previously held, "[t]o affect the standard of

review . . . a conflict of interest must be real. A chimerical,

imagined, or conjectural conflict will not strip the fiduciary's

determination of the deference that otherwise would be due." Leahy

v. Raytheon Co., 315 F.3d 11, 16 (1st Cir. 2002). We find that

Tsoulas has not demonstrated that Liberty was improperly motivated

to terminate her benefits, and therefore, that the "arbitrary and

capricious" standard of review was appropriate.

B. Substantial Evidence

Tsoulas next claims that the district court's finding

that Liberty's decision to terminate her benefits was not

arbitrary, capricious, or an abuse of discretion was flawed because

it was not supported by "substantial evidence." Under the

arbitrary and capricious standard, "the administrator's decision

must be upheld if it is reasoned and supported by substantial

evidence." Gannon, 360 F.3d at 213. We find evidence to be

substantial "if it is reasonably sufficient to support a

conclusion, and the existence of contrary evidence does not, in

itself, make the administrator's decision arbitrary." Id.

1. Occupational Requirements

Tsoulas claims that in assessing her job duties, Liberty

improperly relied solely on a Department of Labor Description for

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Manager, Education and Training based on the Dictionary of

Occupational Titles ("DOT"). Under the Plan,

a. If the Covered Person is eligible for the
Maximum Own Occupation Benefit, "Disability"
or "Disabled" means during the Elimination
Period and until the Covered Person reaches
the end of the Maximum Benefit Period he is
unable to perform all of the material and
substantial duties of his occupation on an
Active Employment basis because of an Injury
or Sickness.

The DOT describes the position of "Manager, Education and

Training," as requiring light work, including lifting, carrying,

occasional pushing or pulling of 20 pounds, frequent pushing or

pulling of lesser weights, frequent reaching, and constant talking.

Tsoulas asserts that in defining her occupation Liberty should have

acquired a more accurate job description from Medaphis and

conducted a more thorough investigation of the requirements of the

position. However, Tsoulas bore the "burden to provide evidence

that [she] was unable to perform the duties of [her] occupation,"

and "[a]n integral part of that evidence would be a statement of

what [her] job required." Wright, 402 F.3d at 77. Furthermore,

although Tsoulas claims that Liberty relied on the DOT description

with only "little information" from her, the record reflects that

Liberty actually contacted her directly for a description of her

job duties. She indicated that her responsibilities included

overseeing the department and hiring and firing staff, none of

which is inconsistent with the DOT description. In this situation,

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we adopt the Fourth Circuit's reasoning that "[a] general job

description of the DOT, to be applicable, must involve comparable

duties but not necessarily every duty." Gallagher v. Reliance

Standard Life Ins. Co., 305 F.3d 264, 272 (4th Cir. 2002). Tsoulas

does not allege that any of her actual occupational requirements

were not represented in the DOT description, nor does she identify

which, if any, of her job responsibilities she was unable to

perform. We find that Liberty did not err in relying on the DOT

definition of Manager of Educational Services.

2. Surveillance

Tsoulas claims the surveillance evidence "falls far

short" of establishing that she was able to perform her

occupational responsibilities as Manager of Educational Services at

Medaphis on a full time basis. To this end, she makes three

distinct, but related, arguments. First, she contends that the

video is not inconsistent with her self-reported limitations.

Second, she insists that even if the video does suggest possible

discrepancies, it does not provide a basis for determining that she

was capable of returning to work full time. Third, she claims that

Liberty acted unreasonably by relying solely upon surveillance

evidence in terminating her benefits.

Although Tsoulas reported in her February 12, 2004

Activities Questionnaire that she was unable to walk or stand

without an assistive device such as a cane, wheelchair, or scooter,

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that she could not climb stairs, that her ability to drive a car

was "very little," and that she could not go grocery shopping,

carry groceries, or put them away, a surveillance video recorded on

February 11 (one day prior to her completion of the questionnaire)

depicts her standing, walking, and driving without assistance,

shopping for groceries, and lifting groceries into her car.

Similarly, although she indicated on the questionnaire that she

spent 14-18 hours in bed each day, that she "never" left the house

on weekends or went shopping at the mall, that she went outdoors

only in "summers and fall," and that her daily routine consisted of

showering, eating meals, resting, writing emails, and watching

television, surveillance videos taken between March 10 and 14

reveal that on those days she drove, stood, and walked unassisted

as she went to a bank and a coffee shop and visited a beauty salon.

Also during this period, she and her boyfriend drove from Bangor to

Portland for a multi-day trip during which she went to restaurants

and nightclubs, and to a mall.

Tsoulas first argues that any discrepancies between her

questionnaire responses and the video footage is attributable to

the ambiguity of the questionnaire. The questionnaire asked "how

many hours a day" she walks, and Tsoulas responded "0" to each. In

her brief to us she claims that she understood the question to mean

"recreational walking" rather than the "minimally necessary walking

to get to and fro while engaged in other necessary daily

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activities." In other words, because Tsoulas never walks more than

one hour per day, she claims that her questionnaire response was

not directly contradicted by the surveillance. Although we find

some degree of logic in this argument, the other inconsistencies

remain unexplained.

Tsoulas also alleges that the videos do not contradict

her self-reported limitations because in them, she walks "slowly,"

with "a noticeable limp," and with an "altered gait." She also

claims that the video footage of her activities during the

surveillance period accounts for only a small -- impliedly non-

representative -- fraction of each day. The district court viewed

the video surveillance and found that although "the video depicts

Ms. Tsoulas with a stiff-legged gait . . . it is also true the

surveillance shows her performing a wide range of activity

inconsistent with her stated limitations." Our review of the

district court's factual inferences is very deferential, and

because we do not find that this conclusion was clearly erroneous,

we do not upset it here.

Tsoulas next claims that even if the video footage does

contradict her questionnaire responses, the surveillance does not

positively support a conclusion that she is capable of performing

all of the responsibilities of her job on a full-time basis.

Although we agree that Tsoulas's occupational responsibilities

differ from the activities portrayed in the surveillance videos,

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she has not shown that Liberty's inference -- that the conflict

between her self-reported limitations and her actual activities

suggests an ability to perform her occupational responsibilities --

was arbitrary and capricious. The DOT description of her

employment responsibilities as education manager indicates that her

work is typically light or sedentary and although it "sometimes"

involves standing, it "almost never" entails walking, running,

kneeling, crouching, stooping, or crawling. Similarly, the DOT

description indicates that multi-limb coordination and gross body

coordination are "not important," and that speed of limb movement

is only "somewhat important." We find no error in the district

court's determination that Liberty could have rationally concluded

that the plaintiff's physical abilities "largely comport with the

DOT's description of the physical requirements of her occupation."

Finally, Tsoulas claims that Liberty improperly relied

solely upon the surveillance evidence to terminate her benefits.

This assertion is plainly unsupported by the record. Liberty

consulted two physicians -- Dr. Holbrook and Dr. Erlbaum -- after

reviewing the surveillance videos. Tsoulas gives us no reason to

believe that Liberty relied solely upon the surveillance and

discounted the medical experts whose advice it sought.

3. Medical Records

Tsoulas claims that her medical records attest to the

severity of her disability and demonstrate that Liberty's

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termination of her benefits was arbitrary and capricious. To

support this argument, she points to abnormalities in her brain MRI

scans and the diagnoses and opinions of various physicians,

including Dr. Miller's assessment in 1999 that Tsoulas was

suffering from relapsing/remitting MS and that she was "greatly

disabled" by her symptoms, and Dr. Finder's conclusion in the same

year that he did not expect Tsoulas ever to return to either

modified or full function.

None of this is sufficient to demonstrate that Liberty

lacked substantial evidence to terminate her benefits. The

plaintiff's medical history is replete with suggestions that her MS

was not totally disabling under the terms of the Plan. In his

March 27, 2004 report, Dr. Holbrook, an independent reviewing

physician, concluded that the information in Tsoulas's file --

including her medical history and the surveillance materials --

suggested that Tsoulas had recovered sufficient functional ability

to resume full-time work. Liberty then sought a second opinion

from Dr. Erlbaum, a board-certified neurologist, who opined that

Tsoulas's primary diagnosis was likely psychiatric in nature and

that her secondary diagnosis was a mild form of MS. Dr. Erlbaum

agreed that Tsoulas was capable of returning to work on a full time

basis. Even apart from the fact that the evaluations Tsoulas cites

were conducted years before the termination of her benefits, we

have held that the existence of conflicting medical evidence is not

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sufficient to render arbitrary the decision to terminate benefits.

Wright, 402 F.3d at 78-79.

Tsoulas also argues that Liberty failed to consider the

effects of her fatigue, speech difficulties, and memory problems on

her ability to perform her job responsibilities enumerated in the

DOT definition. In addition to the physical responsibilities

already mentioned, the DOT definition indicated that oral

expression and comprehension were "very important" and that

memorization, written expression, and comprehension were

"important."

Although Tsoulas maintains that her cognitive impairments

have been "well-documented," this is not the case. All references

to cognitive problems pertain to Tsoulas's self-reported symptoms.

In 1998, Dr. Langer-Gould described Tsoulas's mental state as

"alert" despite her self-reported experience of "slowed mentation."

In July 1999, Dr. Miller noted that Tsoulas was "alert and

attentive with normal speech and language, and no gross cognitive

defects." Dr. Miller also noted that "there [was] a degree of

embellishment" of her symptoms. In 2001, Nurse Entrekin reported

that Tsoulas "was significantly impaired due to physical

limitations as well as [Tsoulas's] own assertions of deteriorating

mental status." The record contains no evidence that any of her

examining physicians identified or diagnosed cognitive problems of

any kind.

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 There is significant indication throughout Tsoulas's file

that she was suffering from psychological and or psychiatric

difficulties. However, despite repeated suggestions by her own

physicians, she has largely refused to seek assistance for these

problems. When Dr. Langer-Gould suggested that Tsoulas seek

treatment for her conversion disorder, Tsoulas "vehemently denied

that she had any psychological problems." Tsoulas visited Ms. Kart

for psychotherapy sessions for only three months and never obtained

another mental health evaluation after March 5, 1999. In the

letter denying her appeal, Liberty pointed out that despite her

possible psychiatric problems, Tsoulas had not presented a

psychiatric medical record from which Liberty could determine

whether she had a psychiatric impairment that prevented her from

performing her occupational responsibilities. We find no basis in

Tsoulas's medical records to upset the district court's conclusion

that Liberty's termination of her benefits was not arbitrary or

capricious.

4. Dr. Holbrook

Finally, Tsoulas alleges that Dr. Holbrook's review

demonstrates a bias in favor of terminating her benefits, and

therefore that it was inadequate to support a finding that there

was substantial evidence that she was capable of returning to full-

time work. Specifically, she claims 1) that Dr. Holbrook "placed

undue weight on the existence of a conversion disorder diagnosis in

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1998 and 1999" in concluding the diagnosis of MS was not

conclusively established; 2) that he relied unreasonably on Dr.

O'Connor's opinion that Tsoulas had no physical restrictions

because Dr. O'Connor was an oncologist and did not treat her for

MS; 3) that Dr. Holbrook did not personally review the surveillance

footage, and unreasonably relied on the surveillance reports in

concluding that Tsoulas's physical capabilities were greater than

she admitted; and 4) that Dr. Holbrook's evaluation did not

consider her memory, speech, and cognitive limitations when he

concluded that she was able to perform the duties of her own

occupation.

Plaintiff's arguments are meritless. Although Dr.

Holbrook did specifically rely on Tsoulas's 1998 and 1999 medical

records in concluding that her symptoms had a psychological or

psychiatric component, Tsoulas cannot now complain that such

records are out of date because she refused to seek any psychiatric

evaluation subsequent to 1999.

Dr. Holbrook's reference to Dr. O'Connor's opinion that

there were "no physical restrictions" was only one of several

pieces of evidence that Dr. Holbrook used to determine her current

level of functionality. Although Dr. O'Connor was an oncologist

who treated Tsoulas for breast cancer, not MS, we do not think it

improper for Dr. Holbrook to have taken her assessment into

account. We have held that "it is not for a court to determine how

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much weight [a non-examining medical consultant] should have

accorded [a particular piece of evidence]." Gannon, 360 F.3d at

214.

Tsoulas's claim that Dr. Holbrook failed personally to

review the surveillance footage is unsupported by the record.

Liberty specifically requested that he review the surveillance

videos, and his report refers to several incidents shown on the

videos. From this, the district court quite reasonably concluded

that Dr. Holbrook had actually viewed the videos, and we find no

error.

Finally, Tsoulas claims that Dr. Holbrook's review

"completely ignored" her memory, speech, and cognitive impairments

in concluding that she "does retain functional capacity sufficient

for full-time work." Dr. Holbrook's report indicates that he

reviewed plaintiff's entire file. As discussed previously,

Tsoulas's claim is without basis because her file does not contain

clear evidence of these symptoms.

III. Conclusion

After careful consideration, we cannot say that Liberty's

decision to terminate Tsoulas's disability benefits was arbitrary

or capricious. For the foregoing reasons, the decision of the

district court is affirmed.

Affirmed.

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