United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 14, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-20979
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IDA KEELE,
Plaintiff-Appellant,
v.
JP MORGAN CHASE LONG TERM DISABILITY PLAN; LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
No. H-04-0327
Before SMITH, BENAVIDES, and PRADO, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Ida Keele (“Keele”) appeals a district
court order granting summary judgment to Defendants-Appellees JP
Morgan Chase Long Term Disability Plan (“JP Morgan”) and Liberty
Life Assurance Company of Boston (“Liberty”) (collectively,
“Defendants”). The district court concluded that Liberty, the
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
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plan administrator for JP Morgan, did not abuse its discretion by
denying Keele’s application for long-term disability benefits.
Because we agree that Liberty did not abuse its discretion, we
AFFIRM the decision of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Keele, an employee of Chase Manhattan/Texas Commerce Bank,
was a participant in short-term and long-term disability
insurance plans administered by Liberty. Keele initially applied
for short-term disability benefits in March 2001, claiming that
she had a “bone spur pinching nerves in [her] neck.” When those
benefits expired, she applied for long-term benefits in September
2001 and received interim payments while a final decision on her
claim was pending. In January 2002, Liberty denied Keele’s long-
term disability claim on the basis that her condition was not
“disabling,” as defined by the Liberty benefits policy. Under the
Liberty plan, long-term disability benefits are available to a
claimant who is “unable to perform all of the material and
substantial duties of [her] occupation on an Active Employment
basis because of an injury or sickness.” Liberty concluded that,
following two surgeries, Keele’s condition was stable, and she
was able to perform her duties as a “Currency Clerk Specialist.”
Liberty informed Keele that she could request a review of
the denial if she did so within sixty days and “[i]nclude[d]
documentation such as medical treatment notes and diagnostic test
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results that contradict those currently in [her] file, as well as
any other medical documentation” that would support her claim. On
February 13, 2002, Keele requested review of Liberty’s decision
to deny her benefits, claiming that Liberty had given inadequate
consideration to the opinion of her family doctor, Dr. Buescher,
that she was unable to work due to constant pain, as well as to
the opinions of several other of her doctors. However, Keele did
not include any new medical records or other documents in support
of her claim. On March 13, 2002, Liberty reminded Keele of the
necessity of supplying additional medical information and granted
her an additional thirty days in which to do so.
Before the expiration of that deadline, Keele submitted to
Liberty additional records from two new doctors, Dr. Orellana and
Dr. Bessire, as well as records from her dentist, Dr. Taylor,
detailing treatment between December 2002 through April 2002. Six
weeks later, after the deadline expired, Keele submitted further
documentation from Dr. Buescher relating to her chronic facial
pain. On June 18, 2002, Liberty informed Keele that it had denied
her appeal. Liberty stated that there was insufficient medical
data “to support a degree of impairment or limitation of her
functional capacity, which would preclude [her] from the material
and substantive duties of [her] occupation as Currency Clerk
Specialist.” Liberty also stated that evidence revealed no
“conditions, such as trigeminal neuralgia or other specific
neurological condition to explain” her complaints of continued
3
pain.
Eighteen months later, in December 2003, Keele sent another
set of medical records to Liberty in the hope of reviving her
claim. These record were from two other neurologists, Dr. Sharlin
and Dr. Briggs, who treated her from November 2002 to October
2003. Keele argued that these doctors had diagnosed her condition
as trigeminal neuralgia and that therefore Liberty should
reconsider its denial of her claim. Liberty refused Keele’s
request for an additional review. Subsequently, Keele filed suit
in the United States District Court for the Southern District of
Texas. Keele claimed that Liberty erred by refusing to consider
the new medical evidence she submitted and that Liberty abused
its discretion by denying her benefits claim.
The district court referred the case to a magistrate judge
for pre-trial management under 28 U.S.C. § 636(b)(1)(A) and (B).
Thereafter, both Keele and the Defendants filed motions for
summary judgment. The magistrate judge filed a Memorandum and
Recommendation proposing that Keele’s motion be denied and the
Defendants’ be granted. Keele timely filed objections. On
September 27, 2005, the district court issued an Order Adopting
the Magistrate Judge’s Memorandum and Recommendation, thereby
granting summary judgment in favor of the Defendants. This appeal
by Keele followed.
II. JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction pursuant to 28 U.S.C. § 1291. We
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review a district court’s grant of summary judgment de novo.
Dallas County Hosp. Dist. v. Assocs. Health & Welfare Plan, 293
F.3d 282, 285 (5th Cir. 2002). Summary judgment is proper when
the pleadings, discovery responses, and affidavits show that
there is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law. FED. R. CIV.
P. 56(c). A dispute about a material fact is genuine if the
evidence is such that a reasonable fact-finder could return a
verdict for the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). When deciding whether there is a
genuine issue of material fact, this court must view all evidence
in the light most favorable to the non-moving party. Daniels v.
City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001).
Keele’s request is governed by the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.,
which authorizes federal court review of such benefit decisions.
See Gooden v. Provident Life & Acc. Ins. Co., 250 F.3d 329, 332
(5th Cir. 2001). ERISA benefit plan decisions are reviewed under
a de novo standard unless the benefit plan gives the
administrator discretionary authority to determine eligibility
for benefits. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,
115 (1989). Where, as the parties agree is the case here, the
administrator’s discretionary authority is clear under the terms
of the benefits plan, we review the administrator’s decision for
“abuse of discretion.” Ellis v. Liberty Life Assur. Co., 394 F.3d
5
262, 269 (5th Cir. 2004). “In applying the abuse of discretion
standard, we analyze whether the plan administrator acted
arbitrarily or capriciously.” Meditrust Fin. Servs. Corp. v.
Sterling Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999). Thus
the decision to deny ERISA benefits must be “based on evidence,
even if disputable, that clearly supports the basis for its
denial.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299
(5th Cir. 1999)(en banc).
Additionally, if the complaining participant shows that the
plan administrator has a conflict of interest, then judicial
review is less deferential than an ordinary abuse of discretion
review. Id. at 297. Here it is not disputed that Liberty was
acting both as the plan administrator and the insurer with regard
to Keele’s claim. Accordingly, Liberty’s decisions are entitled
to less than full deference, in order to “neutralize any untoward
influence resulting from the conflict.” Id. at 296.
III. DISCUSSION
On appeal, Keele argues that the district court erred in
concluding that there was no genuine issue of material fact
regarding whether Liberty abused its discretion by denying
Keele’s claim for long-term benefits.
Keele claims that under this court’s holding in Vega, the
additional documentation that she submitted eighteen months after
her appeal was denied became part of the administrative record in
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the case, and that Liberty’s failure to review this material
indicated that its decision was not “fair and informed.” The
Defendants deny that this material has become part of the
administrative record and argue that Liberty was in no way
required to review it.
This dispute raises an interesting question regarding the
reach of statements made by this court in Vega. There, we
addressed whether a party whose insurance claim had been denied
by a plan administrator could present new evidence to the
district court. We declared that:
Before filing suit, the claimant’s lawyer can add
additional evidence to the administrative record simply by
submitting it to the administrator in a manner that gives
the administrator a fair opportunity to consider it. . .
. If the claimant submits additional information to the
administrator, however, and requests the administrator to
reconsider his decision, that additional information should
be treated as part of the administrative record. . . .
Thus, we have not in the past, nor do we now, set a
particularly high bar to a party’s seeking to introduce
evidence into the administrative record.
We hold today that the administrative record consists
of relevant information made available to the administrator
prior to the complainant’s filing of a lawsuit and in a
manner that gives the administrator a fair opportunity to
consider it.
Id. at 300.
These passages suggest that new evidence submitted by the
claimant becomes a part of the administrative record even if it
is submitted after the administrator has reached its final
decision. Read thusly, these passages conflict with prior cases
in which we indicated that the administrative record consisted of
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those documents before the administrator at the time the claims
decision was made. See, e.g., S. Farm Bureau Life Ins. Co. v.
Moore, 993 F.2d 98, 102 (5th Cir. 1993); Bellaire Gen. Hosp. v.
Blue Cross Blue Shield, 97 F.3d 822, 827 (5th Cir. 1996).1 This
interpretation of Vega also poses a number of practical problems,
some of which were nicely elucidated by the Eastern District of
Louisiana in Needham v. Tenet Select Benefit Plan, No. Civ.A. 02-
3291, 2004 WL 193131, at *7 (E.D.La. Jan. 30, 2004). There, the
district court questioned:
Does an administrator ipso facto abuse its discretion by
refusing to reconsider its decision after the
administrative appeal process is concluded? At what point,
if any, may an administrator close its file and simply
refuse to consider new evidence? If an administrator
legitimately may take this position eight months after
denying a claimant’s appeal, is it not inconsistent with
the abuse of discretion standard of review for the Court
to then judge the reasonableness of the denial in light of
evidence submitted post hoc?
The Defendants helpfully suggest that the time frame in
which a claimant can submit new evidence to the administrator is
limited by the language “in a manner that gives the administrator
a fair opportunity to consider it” from Vega. 188 F.3d at 300.
The Defendants contend that Keele’s documents, submitted eighteen
months after her claim was closed, were not submitted in “a
1
We do not mean to imply that these earlier decisions take
precedence over Vega, which is an en banc decision. We simply
point out that if Vega allows into the record evidence submitted
after the administrator has reached a final decision, this
holding implicitly alters what had been a settled point in our
jurisprudence.
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manner that g[ave] the administrator a fair opportunity to
consider” them. This key language from Vega has not been
interpreted by this court, though the Defendants’ position has
support from at least one district court opinion. See Schaffer v.
Benefit Plan of Exxon Corp., 151 F. Supp. 2d 799, 809 (S.D. Tex.
2001) (suggesting that evidence submitted two years after a claim
was denied was not submitted “in a manner that gives the
administrator a fair opportunity to consider it”). Alternatively,
however, one could read this phrasing from Vega as referring to
the length of time between the claimant’s submission of the new
evidence and subsequent filing of suit in federal court. Such an
interpretation is consistent with the overriding concern of Vega,
which was to “encourage the parties to resolve their dispute at
the administrator’s level.” 188 F.3d at 300.
We need not decide this question of Vega’s precise
requirements today, because we conclude that the documents in
dispute do not change the disposition of the case. Indeed, the
district court considered the late-submitted documents “in an
abundance of caution,” and still determined that there was no
material issue of fact regarding whether Liberty had abused its
discretion. The district court found that Keele had failed to
produce evidence that her medical condition prevented a return to
her duties as a Currency Clerk Specialist, which included sitting
for up to six hours a day, data entry for up to seven hours, use
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of fine finger dexterity for up to six hours, lifting items
weighing twenty-to-thirty pounds about five times per day, and
bending and reaching for thirty minutes a day. The district court
concluded that Keele had not produced sufficient documentation
evidencing her restricted physical capacity to establish her
disability. After careful review of the record, we agree with the
district court.2
Statements by several of Keele’s doctors, as well as by
Keele herself, imply that Keele was able to perform many of the
duties required by her employment. For example, on March 31,
2001, Keele completed a form stating that she was capable of
sitting for fifteen hours per day, standing for two hours per
day, walking for fifteen minutes per day, and driving for two
hours per day. On October 26, 2001, Dr. Buescher indicated that
Keele had a functional capacity of Class 5 (incapable of minimum
activity). Two days later, however, Dr. Buescher completed a form
stating that Keele could lift up to ten pounds, could sit for
eight hours per day, could stand, and could walk, bend, and kneel
infrequently. On January 7, 2002, Dr. Mims, Keele’s surgeon,
2
Keele suggests that if Vega requires that the record
include the late-submitted documents, and Liberty refused to
review those documents, then Liberty’s decision was per se an
abuse of discretion, and summary judgment was improper. We
disagree with that logic, because the reviewing court’s task was
to assess Liberty’s June 2002 decision finally denying Keele’s
claim, not Liberty’s December 2003 decision to not review
additional documents.
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signed a letter stating that he “found no basis precluding Ms.
Keele from returning to work at her own occupation as a currency
Clerk Specialist on a full time basis.”3
The strongest evidence for Keele’s disability comes from the
above-mentioned October 26, 2001 report by Dr. Buescher and a
April 24, 2002 letter by the same doctor stating that Keele was
unable to perform the tasks required by her occupation and was
“unable to work” because she was “in pain all the time.” But Dr.
Buescher’s October 26, 2001 report was contradicted by his
written statements from two days later, and his April 24, 2002
letter came six months after he last had examined Keele.
Moreover, Dr. Buescher’s diagnoses were unaccompanied by
objective medical data.
Keele points to Liberty’s statement in its June 2002 letter
that her evidence revealed no “conditions, such as trigeminal
neuralgia or other specific neurological condition to explain”
her complaints of continued pain. She argues that her
subsequently submitted documentation contains several diagnoses
of her condition as trigeminal neuralgia, thus requiring Liberty
to reverse its denial of her claim. The absence of a diagnosis,
however, was not Liberty’s sole reason for denying Keele’s
claim–-more significant was her failure to produce documentation
3
This letter was prepared by Liberty’s consulting
physician, Dr. Brown, after a conversation between her and Dr.
Mims on December 21, 2001.
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of her physical limitations. The documents submitted late by
Keele do include a diagnosis of trigeminal neuralgia, but they do
not contain additional information concerning restrictions on her
ability to perform the duties of her occupation. Indeed, Keele’s
neurologist, Dr. Sharlin, noted in January 2003 that Keele was
happy with the current management of her trigeminal neuralgia.
We therefore agree that Liberty’s decision to deny Keele’s
claim for long-term disability benefits was supported by
sufficient evidence to render that decision neither arbitrary nor
capricious. Keele has failed to show a material issue of fact
regarding whether Liberty abused its discretion.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the order of the
district court granting summary judgment to the Defendants.
AFFIRMED.
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