United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 10, 2004
July 26, 2004
IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
No. 02-31135
BARBARA F. VERCHER,
Plaintiff-Appellant,
versus
ALEXANDER & ALEXANDER INC.; ET AL,
Defendants,
AON SERVICES CORP; AON RISK
SERVICES INC OF LOUISIANA,
formerly known as Alexander &
Alexander Inc; METROPOLITAN LIFE
INSURANCE CO;
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
Before GARWOOD and JONES, Circuit Judges, and ZAINEY,* District
Judge.
*
District Judge for the Eastern District of Louisiana,
sitting by designation.
GARWOOD, Circuit Judge:
Plaintiff-appellant Barbara F. Vercher appeals the district
court’s grant of summary judgment in favor of defendants-appellees,
Aon Services Corporation, Aon Risk Services, Inc. of Louisiana
(formerly known as Alexander and Alexander, Inc.) (Alexander), and
Metropolitan Life Insurance Company (MetLife), upholding the denial
of Vercher’s claim for long-term disability benefits. We affirm.
Facts and Proceedings Below
Barbara Vercher (Vercher), began working for Alexander in 1978
as an Accounting Clerk. She was first promoted in 1979, then again
in 1980, 1983, 1986, and finally in May of 1993 to Manager of
Administrative Services. Vercher continued to work at Alexander
until March 7, 1995.
During the course and scope of her employment with Alexander,
Vercher was injured in a motor vehicle accident on February 19,
1991. The accident resulted in injury to her knee, head, and back.
In late 1991 she began to experience numbness in her arms and legs.
She was referred to Dr. C. Babson Fresh who on October 27, 1992,
performed an anterior cervical discectomy and fusion with bank bone
at C5/C6 on Vercher. When Vercher returned to Dr. Fresh in
December 1992 with continued pain at the base of her neck and in
her right arm, Dr. Fresh assessed that the pain was myofascial, and
not nerve root in origin. When Dr. Fresh released Vercher in
February of 1993, he declared her at “Maximum Medical Improvement.”
2
Dr. Fresh eventually recommended medical retirement on April 13,
1995. Another doctor, Dr. Farley Tumbaco, who had treated Vercher
from September 28, 1994, also recommended medical retirement.
Vercher ceased working for Alexander on March 7, 1995, because
of her alleged disabilities stemming from the 1991 worked-related
accident. Vercher had elected coverage under her employer’s long-
term disability plan which did not entitle her to benefits until
six months later.1 On August 22, 1995, Vercher submitted her
application for long-term disability benefits. Soon thereafter,
Alexander entered into an Administrative Services Agreement (ASA)
with MetLife, which gave MetLife authority to perform certain
administrative services related to the Alexander disability plan.
The ASA also gave MetLife discretionary authority for determining
eligibility for disability benefits and for construing plan terms.2
Disability under the plan is determined as follows:
“You are disabled if, because of injury or sickness:
-You are completely unable to perform any and every duty
of your regular occupation; and
-After benefits have been paid for 60 months, you are
completely unable to perform the material duties of any
gainful occupation for which you are reasonably suited by
training, education, or experience.”
MetLife denied Vercher’s claim for long-term benefits on
1
The plan defined eligibility to receive benefits as
follows: “The Plan begins to pay you a monthly benefit after you
have been disabled for at least 180 days out of a 240-day period,
or continuously for a period of 180 days.”
2
Prior to October 1, 1995, Alexander’s plan was administered
under an ASA with the Aetna Life Insurance Company (Aetna).
3
November 27, 1995. On January 17, 1996, Vercher appealed MetLife’s
denial of her claim, maintaining that she was totally disabled and
entitled to long-term disability benefits. On November 5, 1996,
MetLife denied her appeal adhering to its prior determination that
she was not disabled.
Vercher filed this action in state court on February 12, 1998.
Appellees then removed the case to federal court on April 21, 1998,
asserting exclusive federal jurisdiction over actions for wrongful
denial of benefits governed by the Employee Retirement Income
Security Act of 1974 (ERISA). The parties filed cross motions of
partial summary judgment, and the district court disposed of those
motions holding that the MetLife ASA controlled the disposition of
the claim, and that MetLife’s decision to deny Vercher’s claim for
disability benefits would be reviewed for abuse of discretion. The
parties then filed cross-motions for summary judgment. The
district court granted appellees’ motion, holding that MetLife did
not abuse its discretion in denying Vercher’s claim for long-term
disability benefits. Vercher timely appealed.
Discussion
1. Standard of Review
This court reviews the district court’s grant of summary
judgment de novo. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335
(5th Cir. 1995) (en banc). Standard summary judgment rules control
in ERISA cases. See Barhan v. Ry-Ron Inc., 121 F.3d 198, 202 (5th
4
Cir. 1997). Summary judgment is appropriate when, viewing the
evidence and all justifiable inferences in the light most favorable
to the non-moving party, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
Hunt v. Cromartie, 119 S.Ct. 1545, 1551-52 (1999); see also Fed. R.
Civ. P. 56(c).
2. MetLife and the abuse of discretion standard
Vercher’s long-term disability plan was sponsored by her
employer, Alexander. The official plan administrator was the
United States Benefit Administration Committee of Alexander and
Alexander Services, Inc. The plan was not an insurance policy, and
there was no insurance policy of which Vercher was a beneficiary.
The employees paid into the plan monthly according to the character
of plan benefit which they had elected and which the employer
agreed to provide. Until October 1, 1995, benefits under the plan
were paid by Alexander through an ASA with Aetna. While the Aetna
ASA provided that Aetna would determine benefit claims under the
plan, it did not expressly give Aetna “discretionary authority” to
construe plan terms. The agreement with Aetna was in effect at the
time of Vercher’s injury, at the time she stopped working, and at
the time she filed her initial claim. After Vercher’s claim for
benefits had been filed, but before it had been decided or
presented to Aetna for determination, Alexander entered into the
5
aforementioned ASA with MetLife, effective October 1, 1995.3 Under
the agreement, MetLife had the “discretionary authority for
determining eligibility for disability benefits and for construing
Plan terms.”
Vercher asserts that because there was no such discretionary
provision in the agreement with Aetna, and because the Aetna
agreement was in effect at the time she submitted her claim, her
claim should have been reviewed under the terms of the non-
discretionary Aetna ASA, and in turn, the district court should
have applied a de novo, as opposed to an abuse of discretion,
standard.
After the initial hearing, in its memorandum ruling of
February 1, 2002, the district court determined that the MetLife,
not the Aetna, agreement was controlling, and therefore decided
that the standard of review would be abuse of discretion.
In her brief, Vercher "concedes that if [the MetLife] plan was
the appropriate plan under which her claim should have been
reviewed, then the arbitrary and capricious standard utilized by
the District Court was the correct standard." However, Vercher
disputes the district court’s decision that the MetLife agreement
controls. In addition to the fact that she made the required
payments to the Plan for disability coverage thereunder, was
3
No MetLife insurance policy is involved in this case;
instead, Alexander is required to furnish the money from which
MetLife pays the benefits.
6
injured, became disabled and filed her claim for benefits while the
Aetna ASA was in effect, Vercher asserts that Alexander
deliberately held her claim until the MetLife ASA came into
effect.4
The district court held that because an ERISA cause of action
accrues at the time the benefits claim is denied, the plan in
effect at the time of that denial controls the claim. To support
its holding, the district court cited an unpublished Fourth Circuit
opinion, McWilliams v. Metropolitan Life Ins. Co., 172 F.3d 863,
1999 WL 64275, *2 (4th Cir. 1999), in which the court held that an
ASA expressly granting MetLife the discretion to determine
eligibility for long-term disability benefits controlled because it
was in effect when the applicant’s claim was denied, even though it
was not in effect when he became disabled.5
In the Fifth Circuit, the proper standard under which a
district court is to review a plan administrator’s benefit
determination is governed both by the Supreme Court’s decision in
4
In a letter to MetLife nurse C.J. Ferrante, Sue A. Foard,
Alexander’s Benefits Coordinator, indicated that certain
applications, including Vercher’s, were being sent via Federal
Express to MetLife. Foard then stated, “Thank you very much for
your help on these claims. I had to hold them in my office until
everything was finalized between Metlife & Alexander &
Alexander.” (emphasis added). That is the sole basis for
Vercher’s contention in this respect.
5
“[A]n ERISA cause of action based on the denial of benefits
accrues at the time benefits are denied, and the plan in effect
when the decision to deny benefits is controlling.” McWilliams,
id. at *2.
7
Firestone Tire & Rubber Co. v. Bruch, 109 S.Ct. 948 (1989), and our
subsequent decision in Pierre v. Connecticut General Life Ins. Co.,
932 F.2d 1552 (5th Cir. 1991), cert. denied, 502 U.S. 973, 112
S.Ct. 453 (1991), in which we construed and applied Firestone. In
Firestone, the Supreme Court held that judicial review of the
administrator’s determination of plan terms and eligibility for
benefits provisions was to be de novo unless the plan expressly
conferred upon the plan administrator discretionary authority in
making such determinations. If discretion were granted, the “abuse
of discretion” standard would apply instead. However, in Pierre,
we held that even where the plan does not expressly give the
administrator discretionary authority, “for factual determinations
under ERISA plans, the abuse of discretion standard of review is
the appropriate standard” (emphasis added). 932 F.2d at 1562; see
also Southern Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 100-
01 (5th Cir. 1993); Sweatman v. Commercial Union Ins. Co., 39 F.3d
594, 597-98 (5th Cir. 1994). Therefore, a plan administrator’s
factual determinations are always reviewed for abuse of discretion;
but its construction of the meaning of plan terms or plan benefit
entitlement provisions is reviewed de novo unless there is an
express grant of discretionary authority in that respect, and if
there is such then review of those decisions is also for abuse of
discretion.
In light of this standard, we need not in fact determine which
8
ASA controlled Vercher’s claim, because, as we will explain below,
we believe that Alexander and MetLife applied a legally correct
construction of the plan and its benefit entitlement provisions.6
6
Though we do not decide the question, it may very well be
that the MetLife agreement does in fact control. After the
district court issued its opinion in this case, the Seventh
Circuit considered the same question, and stated, “[i]f benefits
have not vested [under an ERISA plan], the plan participant does
not have an unalterable right to those benefits. The fact that
benefits have not vested suggests that the plan is malleable and
the employer is at liberty to change the plan and thus change the
benefits to which a participant is entitled. Since the employer
can change the plan, then it must follow that the controlling
plan will be the plan that is in effect at the time a claim for
benefits accrues. . . . We have held that a claim accrues at the
time benefits are denied.” Hackett v. Xerox Corp., 315 F.3d 771,
774 (7th Cir. 2003).
This court, like the Seventh Circuit, has held that an ERISA
claim accrues at the time benefits are denied. See Hall v.
National Gypsum, 105 F.3d 225, 230 (5th Cir. 1997). Therefore,
the district court assumed that the MetLife ASA, which was in
effect at the time of the denial of benefits, controlled, and in
turn applied an abuse of discretion standard.
The Seventh Circuit in Hackett appears to have based their
decision in part on a theory concerning “vested rights” to
benefits. In that case, Xerox stopped paying the claimant’s
benefits even though they had been started under a different long
term disability plan. The court held that there is a presumption
against the vesting of benefits unless plan language establishes
some ambiguity on the issue. 315 F.3d at 774. Because there was
no language suggesting ambiguity on the vesting question in
Hackett, the controlling plan was held to be the plan in effect
at the time the benefits were denied. Id.
The lack of vested benefits rights is somewhat troublesome
in the present context; for example, under the Seventh Circuit’s
reasoning, Alexander could have decided to change their plan in
September, after Vercher had been on temporary disability for six
months and had already applied for long-term benefits, to
terminate the long term disability plan altogether. The Summary
Plan Description (SPD) does not speak to the issue of whether or
not the plan documents expressly authorized Alexander to change
or amend the benefits at any time, and the plan itself was never
before the district court or made part of the record. Because
ERISA does not require a welfare benefit plan SPD to reference
9
3. The administrator’s construction of the agreement
Vercher claims that the district court erred in its
determination that the administrator utilized a legally correct
interpretation of the long-term disability provisions of the plan;
specifically the definition of “any and every duty.”
amendment rights or procedures, and because Vercher presented no
evidence to the contrary, arguably we could assume that the Plan
document itself does allow Alexander to amend or change the
benefits.
This court has held that even if an SPD does not discuss
amendments or changes to the welfare benefit plan itself, so long
as the plan contains such language, benefits can then be amended,
modified, or terminated. See Wise v. El Paso Natural Gas Co.,
986 F.2d 929, 934-37 (5th Cir. 1993) (holding, in a case dealing
with a welfare benefit plan, that the fact that no pre-1985 SPD
contained amendment or termination language is not “tantamount to
a promise to maintain post-retirement health care . . .
particularly when (1) ERISA does not mandate the inclusion within
SPDs of amendment rights or procedures and (2) any pre-1985
silence is followed by an unequivocal statement to the
contrary”). The Wise court goes on to hold that ERISA does not
require that welfare plan benefits vest, and “[a]lthough ERISA
generally allows employers to modify or discontinue such plans at
will so long as the procedure followed is consistent with the
plan . . . an employer’s welfare plan itself may designate a
vested benefit,” thereby obligating itself contractually to
maintain benefits. Id. at 937. However, extra-ERISA commitments
“must be found in the plan documents and must be stated in clear
and express language.” Id. The record here contains no evidence
of vested rights.
Additionally, merely changing ASAs or the discretion given
them does not divest participants of benefits, but merely changes
procedures. Therefore, it seems likely that before a claim has
initially been ruled on by the administrator, simply changing or
implementing a new ASA is legitimate so long as it is done before
the claim is ruled upon.
However, we need not and do not go so far as to say that it
would have been acceptable for Alexander to have simply ended the
benefit program so that Vercher would be entitled to no post
August 1995 benefits whatsoever even if she were concededly
disabled as defined in the plan. We assume, arguendo only, that
Alexander could not have done so.
10
In this Circuit, we employ a two-step analysis in determining
whether a plan administrator abused its discretion in construing
plan terms. Rhorer v. Raytheon Eng'rs and Const'rs, Inc., 181 F.3d
634, 639 (5th Cir.1999). We first determine the legally correct
interpretation of the plan and whether the administrator's
interpretation accords with the proper legal interpretation. Id.
If the administrator's construction is legally sound, then no abuse
of discretion occurred and the inquiry ends. Id. at 639-40.
However, if the court concludes that the administrator has not
given the plan the legally correct interpretation, the court must
then determine whether the administrator's interpretation
constitutes an abuse of discretion. Id. at 640.
A. The Legally Correct Interpretation
In order to ascertain the legally correct interpretation of
the plan, we must consider “(1) whether a uniform construction of
the [plan] has been given by the administrator, (2) whether the
interpretation is fair and reasonable, and (3) whether
unanticipated costs will result from a different interpretation of
the policy.” Lain v. UNUM Life Ins. Co. of America, 279 F.3d 337,
344 (5th Cir. 2002). Applying these factors, the district court
correctly determined that the essential inquiry here is whether
MetLife’s interpretation of the plan was fair and reasonable, as
Vercher did not allege that the construction of the plan was not
11
uniform or that there were unanticipated costs.7
Under Alexander’s long-term disability plan, a person becomes
“disabled if, because of injury or sickness: You are completely
unable to perform any and every duty of your regular occupation;
and After benefits have been paid for 60 months, you are completely
unable to perform the material duties of any gainful occupation for
which you are reasonably suited by training, education, or
experience.” The district court correctly determined that
Vercher’s claim falls under the first part of this definition,
requiring her to be “completely unable to perform any and every
duty” of her regular occupation.
Vercher appeals the district court’s holding as to the legally
correct interpretation of “any and every.” In its memorandum
ruling of September 23, 2002, the district court stated that in
order to be considered “disabled” under the plan’s definition, “an
7
That distinguishes this case from Lain where we read the
insurance policy’s disability provision to mean that “an insured
must be unable to perform only a single material duty of her
occupation” in order to be disabled. Id. at 345. That was the
interpretation the company gave in its first level review of the
claim in issue and also it had “previously interpreted the policy
in other cases containing a similar definition of ‘disability’ as
requiring a person to be unable to perform only a single material
duty of her regular occupation.” Id. Moreover, in Lain the
policy language was “cannot perform each of the material duties,”
while here the plan refers to being “completely unable to perform
any and every duty” (emphasis added). Lain does not define
“material.” We also note that Lain (which looked to Texas law to
some extent, id. at 345) was handed down before Provident Life
and Acc. Inc. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003), which
appears to give a somewhat more restricted meaning to a policy’s
total disability definition.
12
employee must be unable to perform all of the duties the employee’s
occupation demands. It is insufficient, under the Plan’s
definition, to be unable to perform some of the duties of one’s
regular occupation. To be eligible for long term disability
benefits, an employee must be completely unable to work. . . . As
long as Vercher has some ability to work at her position as
administrative services manager, she does not meet the required
eligibility standard.”
We believe that the district court’s definition of “any and
every” goes too far. In Saffle v. Sierra Pacific Power Co.
Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455 (9th
Cir. 1996), the Ninth Circuit examined a similar provision in a
long term disability plan containing the phrase “each and every.”
That court determined that the phrase was ambiguous8 because there
were two extreme constructions possible: “Reading ‘each and every’
literally could mean either that a claimant is not totally disabled
8
Eligibility for benefits under an ERISA plan is “governed
in the first instance by the plain meaning of the plan language.”
Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th
Cir. 1998). The court interprets ERISA plans in “an ordinary and
popular sense as would a person of average intelligence and
experience.” Jones v. Georgia Pacific Corp., 90 F.3d 114, 116
(5th Cir. 1996) (internal quotation and citation omitted). “Only
if the plan terms remain ambiguous after applying ordinary
principles of contract interpretation are we compelled to apply
the rule of contra proferentum and construe the terms strictly in
favor of the insured.” Wegner v. Standard Ins. Co., 129 F.3d
814, 818 (5th Cir. 1997) (citation omitted); see also Jones, 90
F.3d at 116 (stating, in relation to the terms of a group life
insurance plan, “[w]e have held that in construing ERISA plans we
follow the rule of contra proferentem”).
13
if she can perform any single duty of her job, no matter how
trivial – or that a claimant is totally disabled if she cannot
perform any single duty, no matter how trivial.” 85 F.3d at 458.
The court then notes that were the phrase to be given the former
construction, total disability would “only exist if the person were
essentially non-conscious,” while the latter “effectively
convert[s] benefits for total disability into benefits for partial
disability.” Id. at 458-59.
The Saffle court held that “the Benefit Committee could
reasonably interpret the Plan as providing for payment of total
occupational disability benefits when the participant is unable to
perform all of the substantial and material duties of her regular
occupation,” i.e., each and every duty that mattered. Id. at 460.
However, the court found that the Committee arbitrarily construed
the plan by defining “total disability,” which for purposes of
occupational benefits depends on whether the participant can
perform the duties of her “regular occupation,” to include
modifications or accommodations to “work available for which she is
qualified.” Id. at 459. In effect, even though the committee had
discretion, the court held that their construction of “total
disability” was not reasonable because premising “occupational
disability” (unable to perform each and every duty of her “regular
occupation”) on the existence of other “work available for which
she is qualified” that would have accommodated her limitations was
14
inconsistent with the plan. Id.
Vercher also cites the Ninth Circuit opinion in McClure v.
Life Ins. Co. of North America, 84 F.3d 1129 (9th Cir. 1996), where
discretion to interpret the plan was not present. In that case,
where the ERISA policy at issue defined disability in terms of the
claimant’s inability “to perform every duty of his occupation,” the
court determined that “every” was ambiguous, and that the language
should be construed against the insurer. 84 F.3d at 1133-34. The
court stated that the “provision should be construed in a practical
sense to refer to essential duties. . . . total disability exists
if an employee is unable to perform one of the essential duties of
his or her position.” Id. at 1134. Cf. Provident Life and Acc.
Ins. Co. v. Knott, 128 S.W.3d 211, 216-17 (Tex., 2003) (When total
disability is defined as “unable to perform the duties of your
occupation,” a permissible reading is that a person is totally
disabled when he is “unable to perform all of the important duties
of his occupation,” and therefore, the plaintiff was not totally
disabled because he was able to perform “some of his duties.”).9
From our review of the record, it does not appear that the
9
The court in that case was able to base its decision in
part on the definition of “partial disability,” which meant that
a person was unable “to perform one or more of [his] important
daily business duties, or . . . [his] usual daily business duties
for at least one-half of the time usually required. . .” Id. at
216-17. In the case sub judice, we do not have an analogous
contrasting definition of partial disability respecting the
claimant’s usual occupation.
15
district court’s definition of “any and every” was the one that
Alexander and MetLife actually applied when considering Vercher’s
disability claim. Rather, Alexander and MetLife seem to have
believed that Vercher was able to do her job, not just that she
could do certain minor or nonessential parts of it.10
Specifically, in its letter of November 27, 1995 initially
denying her claim, MetLife wrote to Vercher that based on the
information provided, “you have the ability to perform your regular
occupation” (emphasis added). Then, in the November 5, 1996 letter
denying her appeal, MetLife stated,
10
A review of the record provided the following examples of
the standard definition that was in fact applied by MetLife and
Alexander in making their determination of Vercher’s disability:
“[The] lack of objective evidence found by MetLife was a lack of
any psychiatric or neuromuscular impairment to the extent that
plaintiff should be prevented from performing her duties”
(emphasis added), defendants’ memorandum in opposition to
plaintiff’s cross-motion for summary judgment. “[E]vidence in
the administrative record indicates that plaintiff was capable of
fulfilling the duties of her occupation at the time of her
alleged disability” (emphasis added), memorandum in support of
defendants’ motion for summary judgment. See also the following
from diverse items of MetLife correspondence during its
consideration of Vercher’s claim, viz: “Tests performed still do
not indicate that [employee] would be unable to perform her
occupation as a manager of administrative services;” “FCE found
that [employee] was capable of performing sedentary work with
modifications for lifting above 5 lbs;” “FCE determinted [sic]
that she was able of performing sedentary work on 7-8 [hour day]
for her occupation;” “[N]o objective evidence of a neuromuscular
or psychiatric impairment which prevents employment;” “Medical
evidence does not support claim of inability to perform sedentary
work;” “[employee] also treated for depression but it does not
appear to be such severity to preclude her from performing her
job as a manager of administrative assts;” “Our findings [sic]
[employee] is capable of sedentary work.”
16
“It was the opinion of the independent physician reviewer
that the documentation we have does not demonstrate the
presence of a significant neuromuscular impairment that
would prevent you from performing the job activities of
an Administrative Services Manager. This occupation is
considered sedentary in nature and not physically
demanding. Depression is a treatable condition and the
evidence does not support any ongoing impairment that
would prevent work. . . . the documentation in your
particular case does not support an inability to perform
sedentary types of activities” (emphasis added).
We must also note that Vercher in fact stipulated for purposes of
this case that the “physical demands of plaintiff’s job were
sedentary in nature.”
MetLife’s key inquiry was what had changed since 1991, when
the accident and injuries occurred, to preclude Vercher, in 1995,
from working. In a faxed letter to one of Vercher’s doctors, Dr.
Fresh, MetLife nurse Ferrante wrote “Information is needed to
indicate what precluded her [Vercher] from doing her occupation. .
. . Please provide copies of test results and physical exams done
that would support a Total Disability to her occupation. Please
indicate what happened to preclude her continuing to work since
this condition has been in existence since 1991.”
After reviewing her records, MetLife’s Dr. Petrie’s assessment
was that “[a] review of the medical records provided does not
demonstrate the presence of a neuromuscular impairment which would
prevent this claimant from performing her previous job activities
as an Administrative Services Manager. . . . This claimant does not
have objective evidence of a neuromuscular or psychiatric
17
impairment which prevents her from working.”
We are unable to conclude that MetLife applied or utilized
other than a legally correct interpretation or definition of plan
terms. In deciding that she could perform “her regular
occupation,” it appears that MetLife essentially determined that,
if there were something she was unable (despite reasonable
accommodation) to do that was indispensable or essential to the
proper performance of her regular occupation, she would have
received benefits. However, so long as she was able to perform all
the substantial and important aspects of her job, with reasonable
accommodation, and any aspects of the job that she could not
perform with reasonable accommodation were, singularly or together,
not indispensable or essential to the job, then she was not
disabled.
Therefore, under either a de novo or an abuse of discretion
standard, we hold that MetLife and Alexander applied a legally
correct, fair, and reasonable construction of the plan terms.
Because theirs was a legally correct interpretation, we need not
determine whether the interpretation itself was an abuse of
discretion. See Lain, 279 F.3d at 344.
4. Facts and evidence
Though we have determined that a legally correct standard was
applied, we still must consider whether the facts before MetLife
and underlying its decision to deny benefits support that decision
18
or whether its factual determinations were an abuse of discretion.
Again, in this Circuit, factual determinations under ERISA plans
are examined using the abuse of discretion standard of review;
federal courts owe “due deference to the administrator’s factual
conclusions that reflect a reasonable and impartial judgment.”
Pierre, 932 F.2d at 1562.
The district court correctly noted that the administrative
record contains evidence that Vercher did suffer from some degree
of disability.11 For example, Dr. Fresh, one of Vercher’s doctors,
concluded that she suffered from cervical disc herniation,
depression, hyperthyroidism, persistent neck and arm pain, and was
severely limited in functional capacity and incapable of minimal
sedentary activity. Additionally, doctors Fresh and Tumbaco
recommended medical retirement for Vercher.
However, the district court was also correct in noting that
the “administrative record also contains evidence that Vercher’s
disability did not render her completely unable to perform any and
every duty of her regular occupation.” MetLife had Vercher submit
11
Although Vercher did not appeal the determination, the
district court was correct in noting that it could only consider
evidence that was before MetLife, and that Vercher could not
bring in later evidence to support her position. See Vega v.
Nat’l Life Ins. Servs. Inc., 188 F.3d 287, 300 (5th Cir. 1999);
see also Meditrust Financial Services Corp. v. Sterling
Chemicals, Inc., 168 F.3d 211, 215 (5th Cir. 1999)(When both
parties have been given an opportunity to present facts to the
administrator, the court’s review of factual determinations is
confined to the record available to the administrator).
19
to a “Functional Capacity Assessment” (FCA) in 1996 which presented
her physical capabilities based upon consistencies and
inconsistencies in her performance. The FCA concluded that Vercher
had a workday tolerance of seven to eight hours and was able to
work at a sedentary level.
Additionally, the district court addressed Dr. Petrie’s review
of Vercher’s records.12 Upon reviewing the FCA and the findings of
those physicians who had treated Vercher, Dr. Petrie stated in an
October 24, 1996 letter that there was “no objective evidence of a
neuromuscular or psychiatric impairment which prevents employment,”
and that the “less than maximal effort demonstrated on testing of
neuromuscular structures [during the FCA] . . . indicate[s]
attempts on the part of an individual to exaggerate impairment.
Intolerance for prolonged sitting, inability to balance or walk on
the heels and toes, and difficulty climbing stairs cannot be
attributed to previous cervical disk surgery.”
There is also other factual evidence in the record supporting
the administrator’s determination that Vercher should not receive
long-term disability benefits. Vercher worked for more than four
years after she was initially injured in the accident. She
accepted a promotion on May 1, 1993, from Manager of Accounting to
Manager of Administrative Services, and performed under her new
12
Dr. Petrie did not in fact examine Vercher in person;
rather, he reviewed her records and the findings made by the
other physicians and nurses who had examined her.
20
position for nearly two years. Notably, between March of 1994 and
March of 1995, Vercher had only taken seven days off work due to
her injury-related illness. Though she had depression, which her
doctor’s believed was a result of her 1991 injury and related pain,
she was not undergoing special psychiatric treatment.13
After she left work, Vercher listed her daily activities to
include “light cooking, cleaning, make bed daily - Have to have
weekly help for changing beds . . . walk in my yard or sit
outside.” Elsewhere in the record, it is stated that since leaving
work, Vercher occasionally “works around the yard,” which, unlike
her job, does not appear to be a sedentary activity.14
We agree with the district court that, though medical
retirement was recommended by her treating physicians, there was
enough evidence in the record to show that Alexander and MetLife
did not abuse their discretion by relying on the FCA and Dr.
Petrie’s conclusions in making their decision to deny Vercher’s
claim. See Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 602
(5th Cir. 1994) (“[W]e agree with the district court that MetLife's
disability determination was not an abuse of discretion. See Donato
13
She was, however, taking anti-depressant medication.
14
Although she argues on appeal that her job was not
sedentary, as we have noted, she stipulated for the purposes of
this case that it was sedentary, and therefore cannot now deny
it. See Pre-Trial Stipulations (“Plaintiff’s responsibilities
were to direct management of administrative, personnel and
accounting department functions. The physical demands of
plaintiff’s job were sedentary in nature.”)
21
v. Metropolitan Life Ins. Co., 19 F.3d 375, 380 (7th Cir.1994)
(MetLife's denial of benefits was not arbitrary and capricious when
its ‘decision simply came down to a permissible choice between the
position of UMAC, MetLife's independent medical consultant, and the
position of [the claimant's physicians].’)”).
5. Treating Physician Argument
Finally, Vercher contends that the district court erred in
determining that it could give no greater weight to the opinions of
her treating physicians than to those of the doctors hired by
MetLife. Under Salley v. E.I. DuPont de Nemours & Co., 966 F.2d
1011, 1016 (5th Cir. 1992) and the “treating physicians rule,” this
Court held that, under appropriate circumstances, a court is
required to defer to a patient’s treating physician’s testimony
unless there is substantial evidence which contradicts it.
Vercher’s argument that special, determinative deference had
to have been given to the opinions of her treating doctors by both
MetLife and the district court, must fail in light of recent
Supreme Court precedent. In Black & Decker Disability Plan v.
Nord, 123 S.Ct. 1965 (2003), the Supreme Court held that ERISA does
not require plan administrators to accord special deference to
opinions of treating physicians. The Court stated,
“[p]lan administrators may not arbitrarily refuse to
credit a claimant's reliable evidence, including the
opinions of a treating physician. But courts have no
warrant to require administrators automatically to accord
special weight to the opinions of a claimant's physician;
nor may courts impose on administrators a discrete burden
22
of explanation when they credit reliable evidence that
conflicts with a treating physician's evaluation.” Id.
at 1966-67.
Therefore, MetLife appropriately considered Vercher’s treating
physicians’ diagnoses, however, it was not required to give those
opinions determinative weight.
Conclusion
We need not determine which ASA controlled Vercher’s claim,
because we hold that Alexander and MetLife applied a legally
correct construction of the plan and its terms. Based on our
review of the record, we find that the facts underlying MetLife’s
decision to deny benefits support that decision, and therefore it
was not an abuse of discretion.
For the foregoing reasons, we conclude that the district
court’s grant of summary judgment is
AFFIRMED.
23