United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MAY 15, 2007
May 10, 2007
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 06-31095
Summary Calendar
JAMES O’REAR,
Plaintiff-Appellant,
versus
PAUL REVERE LIFE INSURANCE CO.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(2:05-CV-86)
Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
James O’Rear contests a summary judgment awarded Paul Revere
Life Insurance, Co. against his action seeking long-term-disability
(LTD) benefits under a plan governed by the Employee Retirement
Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA). Essentially
for the reasons stated by the district court, the judgment was
proper.
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
In October 2002, Paul Revere, the insurer and administrator of
O’Rear’s LTD plan, approved his claim for LTD benefits. Under the
plan, for the first 24 months of disability (first phase), recovery
of benefits required proof that he was “totally disabled” from his
own occupation. After 24 months of disability (second phase),
however, recovery of benefits required proof that he was “totally
disabled” from any occupation.
As the second phase approached, Paul Revere reviewed O’Rear’s
medical records and, based on that review, conducted a vocational
assessment, which identified three occupations that matched his
physical abilities and experience. Accordingly, having determined
O’Rear was not “totally disabled” from any occupation, Paul Revere
terminated his benefits at the conclusion of the first phase.
O’Rear filed this action, claiming Paul Revere’s benefits-
denial was an abuse of discretion. As noted, Paul Revere’s
summary-judgment motion, which O’Rear did not oppose, was granted.
A summary judgment is reviewed de novo, applying the same
standard as the district court. E.g., Meditrust Fin. Servs. Corp.
v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir. 1999). As
O’Rear concedes, Paul Revere’s benefits denial is reviewed only for
abuse of discretion. E.g., id. at 214 (“Deciding the medical
progress of a patient through analysis of medical reports and
records is similar to the factual determinations we have reviewed
for abuse of discretion in other ERISA cases.”); Sweatman v.
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Commercial Union Ins. Co., 39 F.3d 594, 597-99 (5th Cir. 1994).
Such review is limited to the administrative record, and seeks to
determine “only whether the ‘record adequately supports the
administrator’s decision’”. Gooden v. Provident Life & Accident
Ins. Co., 250 F.3d 329, 333 (5th Cir. 2001) (quoting Vega v. Nat’l
Life Ins. Servs., Inc., 188 F.3d 287, 298 (5th Cir. 1999) (en
banc)). Under such review, an administrator abuses its discretion
if it denies a claim “[w]ithout some concrete evidence in the
administrative record”. Vega, 188 F.3d at 302. Moreover, such
review “need only assure that the administrator’s decision fall
somewhere on a continuum of reasonableness — even if on the low
end”. Id. at 297.
Less deference is given under the abuse-of-discretion standard
where an administrator is self-interested. Id. at 296-97. Here,
however, the only evidence of a conflict of interest is the
insurer’s position as both the insurer and the administrator.
Accordingly, to the extent such a conflict affects the amount of
discretion afforded Paul Revere’s decision, we conduct our review
“with only a modicum less deference than we otherwise would”. Id.
at 301.
In stating the relevant facts, both Paul Revere’s unopposed
summary-judgment motion and the district court’s memorandum ruling
cite to the administrative record. These facts, which are not
contested by O’Rear, demonstrate that Paul Revere’s benefits denial
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was supported by adequate evidence. The record shows that Paul
Revere based its benefits-denial on, inter alia, an evaluation of
O’Rear’s medical records, which included O’Rear’s own physician’s
finding O’Rear capable of: standing for 30 minutes at a time for
up to two hours per day; sitting for one hour at a time for up to
a “varying” amount of time per day; and driving for one hour at a
time for up to four hours per day. Based on those medical records,
Paul Revere’s vocational assessment identified three occupations
that matched O’Rear’s physical abilities and experience.
Subsequent to Paul Revere’s notifying O’Rear of its benefits-
denial decision, O’Rear’s physician found that O’Rear was, inter
alia: “totally disabled” and “not able to work”; and limited to
four hours of sedentary activity per day. The record shows Paul
Revere rejected these findings, as they were not supported by
objective medical evidence such as diagnostics or office notes.
O’Rear was explicitly advised by Paul Revere that, in appealing its
benefits denial, he could submit such evidence. He did not do so.
Accordingly, the post-notification findings by O’Rear’s
physician do not undermine Paul Revere’s benefits denial. See
Gooden, 250 F.3d at 333-34 (letter from treating physician stating
that the insured was disabled did not undermine administrator’s
benefits-denial because “it was written after [the insured] learned
he was being terminated, and was unaccompanied by medical evidence
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indicating that [the insured]’s condition changed since the last
time [the physician] had seen [the insured]”).
AFFIRMED
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