Corry v. Liberty Life Assur. Co. of Boston

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
August 28, 2007
No. 05-50983
Charles R. Fulbruge III
Clerk
VALERIE L. CORRY

Plaintiff-Appellee
v.

LIBERTY LIFE ASSURANCE COMPANY OF BOSTON

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas

Before JOLLY, PRADO, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal requires us to determine whether a long-term disability plan
administrator, Liberty Life Assurance Company of Boston (“Liberty”), abused its
discretion by terminating disability benefits to Valerie L. Corry (“Corry”), whose
claim for disability arises from fibromyalgia. The primary focus of the appeal is
the district court’s holding that Liberty’s decision to terminate benefits was
arbitrary and capricious because it discounted and ignored Corry’s subjective
claims of pain and disability. We conclude that Liberty, and its physicians,
considered Corry’s subjective claims of pain and disability and thus Liberty did
not abuse its discretion in failing to consider relevant evidence. Furthermore,
we conclude that Liberty’s decision denying benefits is supported by substantial
 No. 05-50983

evidence, which includes the opinions of three medical specialists stating that
there is no verifiable medical evidence that would preclude Corry from
performing full-time sedentary work. We therefore REVERSE, RENDER, and
REMAND for entry of judgment in favor of Liberty.
I.
In 1991, Corry began working for Dell Computer Corporation as a “Sales
Manager IV.” According to her job description, Corry was “[r]esponsible for
managing the internal sales force selling to large complex customers within a
limited geographic region and within a specific market.” As listed in her job
description, her principal duties included managing a business unit, attaining
sales goals, analyzing sales reports, working with other departments to resolve
customer concerns, and participating in and closing large sales opportunities.
Her job description states that her job required strong organization,
communication, and presentation skills. Corry was a participant and beneficiary
of a Group Disability Income Policy (“Policy”) administered by Liberty.
Sometime in 1995, Corry became ill. In August 1995, Corry took a medical
leave of absence on the advice of her treating family care physician, Dr. Robert
Norris. In December 1995, she applied for long-term disability benefits, which
Liberty approved and began paying in April 1996. Under the Policy, Corry also
received retroactive benefits back to November 3, 1995. Additionally, Corry
applied for Social Security disability benefits, which were granted.
A complete diagnosis of the cause of Corry’s disability has never been
clear. The parties agree that Corry suffers from a seizure disorder,
fibromyalgia,1 and a rotator cuff sprain in her shoulder. The parties disagree,

1
Betty Todd, a registered nurse and witness for Liberty, stated in her affidavit, which
is not in dispute, that fibromyalgia is a rheumatic syndrome that causes pain in the muscles,
tendons, and fibrous and other connective tissues. The National Institutes of Health state that
a person suffering from fibromyalgia may experience trouble sleeping, morning stiffness,
headaches, painful menstrual periods, tingling or numbness in hands and feet, and problems
with thinking and memory. The causes of fibromyalgia are unknown. Nat’l Institutes of

2
 No. 05-50983

however, as to whether her pain could also be attributed to Chronic Fatigue
Syndrome,2 lupus,3 Sjogren’s Syndrome,4 undifferentiated5 or mixed connective
tissue disease,6 or some other rheumatic or musculoskeletal disorder. (The
accompanying footnotes provide information not necessarily found in the record
and are supplied only to inform the reader generally of terms reflected in the
medical records in this case. None of these definitions are determinative of the
outcome of this case.)

Health, “What Is Fibromyalgia? Fast Facts: An Easy-to-Read Series of Publications for the
Public,” March 2005 available at http://www.niams.nih.gov/hi/topics/fibromyalgia/
FF_Fibromyalgia.pdf.
2
Chronic Fatigue Syndrome is a disorder causing profound fatigue that is not improved
by rest and that may be worsened by physical or mental activity. A person suffering from
Chronic Fatigue Syndrome may experience muscle pain, headaches, sore throat, tender lymph
nodes, multi-joint pain, problems with concentration or memory, and post-exertional fatigue
lasting more than twenty-four hours. The causes are unknown. Chronic Fatigue Syndrome
is diagnosed on the basis of self-reported symptoms. U.S. Dep’t of Health and Human Services,
Centers for Disease Control and Prevention, “Chronic Fatigue Syndrome,” Sept. 2006,
available at http://www.cdc.gov/cfs/pdf/06_103087_dtp_cfs_booklet-spread.pdf.
3
Lupus is a disorder in which a person’s immune system attacks healthy cells and
tissues. Lupus exists in various forms, and its symptoms widely vary. The cause of lupus is
unknown. Nat’l Institutes of Health, “What Is Lupus? Fast Facts: An Easy-to-Read Series of
Publications for the Public,” Sept. 2005, available at http://www.niams.nih.gov/hi/topics/lupus/
FF_Lupus.pdf.
4
Sjogren’s Syndrome is a disorder in which a person’s immune system attacks glands
that produce tears and saliva. The main symptoms are dry eyes and dry mouth. The exact
cause is unknown. Nat’l Institutes of Health, “What Is Sjögren’s Syndrome? Fast Facts: An
Easy-to-Read Series of Publications for the Public,” Sept. 2005, available at
http://www.niams.nih.gov/hi/topics/sjogrens/FF_Sjogrens.pdf.
5
Undifferentiated connective tissue disease is a term used to refer to persons who
appear to have a connective tissue disease such as lupus or rheumatoid arthritis but whose
specific diagnosis is not obvious. See Kelley’s Textbook of Rheumatology 1258 (Edward D.
Harris, Jr. et al. eds., 2005).
6
Mixed connective tissue disease has many of the characteristics of several other
diseases including lupus and rheumatoid arthritis. “The origin or cause of the disease is
unknown, and it has not been determined if this is a distinct disease or a conglomeration, but
the prevailing opinion is that it is a clinical entity and that the immunity system plays a major
role.” 4 J.E. Schmidt, Attorney’s Dictionary of Medicine and Word Finder M-234 (2001).

3
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Liberty initially approved disability benefits for Corry. Under the Policy,
a person is considered disabled during the initial 36 months of benefits if “the
Covered Person 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.” After the initial 36 months, a person continues to receive benefits
only if “the Covered Person is unable to perform, with reasonable continuity, all
of the material and substantial duties of his own or any other occupation for
which he is or becomes reasonably fitted by training, education, experience, age
and physical and mental capacity.” Additionally, the Policy provides that
“Liberty shall possess the authority, in its sole discretion, to construe the terms
of this policy and to determine benefit eligibility hereunder.”
From 1996 to 2001, Corry received benefits from Liberty while she sought
medical treatment. Corry continued to be treated by Dr. Norris. Corry also
sought evaluation by Dr. Michael Pickrell, a rheumatologist recommended by Dr.
Norris. In February 1996, Dr. Michael Pickrell’s impressions of Corry included
“[n]onspecific symptoms of fatigue, recurrent rashes, vague musculoskeletal pain
- all possibly related to systemic rheumatic disorder.”
In July 1996, Corry was evaluated by Dr. Carlos Gray, a physician
retained by Liberty. Dr. Gray concluded that “based on her medical history I feel
Mrs. Corry has chronic fatigue syndrome which is an analysis by exclusion.” Dr.
Gray evaluated Corry’s physical capabilities, concluding that during an eight-
hour workday, Corry could sit two hours, stand one hour, and walk one hour. He
also concluded that she could lift and carry up to ten pounds frequently, use her
hands for grasping and fine manipulation but not pushing or pulling, reach
above shoulder level frequently, and bend frequently. He concluded that she
could not squat, crawl, or climb. Ultimately, Dr. Gray concluded that he did not
feel that Corry could return to her normal job.

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In September 1997, Corry visited Dr. Jeffrey Clark, a neurologist at Scott
and White Neurology Clinic. Corry reported seizures since childhood, which Dr.
Clark noted were controlled “quite well” by Dilantin. Dr. Clark also noted that
Corry complained of headaches and joint pain. Dr. Clark reported: “Mrs. Corry
is a neatly-dressed, very pleasant and talkative woman who looks her stated age
[38]. She provides very detailed information about all of her history, including
a long list of symptoms and correct dates without any problem.” He further
reported: “Mental status exam reveals normal orientation, recent memory, and
short-term memory for 3 objects. Again, she provides very detailed information
as listed above. . . . She interpret [sic] abstract phrases well. Language and
speech are normal. General information is good. Judgement seemed normal.”
In November 1997, Corry sought evaluation by Dr. Michael Pickrell’s
brother, Dr. Paul Pickrell, also a rheumatologist. Dr. Paul Pickrell concluded
that Corry suffered from “[c]hronic arthralgias and myalgias, [and] fatigue.” He
added: “Given the number of tender points on exam in association with
headaches, fatigue, irritable bowel symptoms, and stress, I feel she does meet
criteria for fibromyalgia.” He also noted: “I reassured both her and her husband
that, from an exam standpoint, she does not meet criteria for any specific
rheumatologic disorder at this time. I do, however, feel that a diagnosis of
undifferentiated connective tissue disease could be made on the basis of her
subjective symptoms and positive ANA.”7 Dr. Paul Pickrell continued to treat
Corry throughout the following years.
In March 1998 and August 1998, Liberty notified Corry that the Policy’s
definition of “disability” would change on November 3, 1998, the end of the

7
ANA is the abbreviation for “antinuclear antibody.” STEDMAN’S MEDICAL DICTIONARY
66 (27th ed. 2000). ANA is found in “a high proportion of patients with systemic lupus
erythematosus, rheumatoid arthritis, and certain collagen diseases, in some of their healthy
relatives; also in about 1% of normal individuals.” Id. at 97.

5
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initial 36-month period, and that her case would be reevaluated to determine
whether she met the heightened standard of disability.
In February 1999, Corry was admitted to the emergency room at South
Austin Hospital. Corry complained of pain across her chest whenever she took
a deep breath or coughed. The attending physician, Dr. Michael McElveen,
concluded that she likely suffered from an acute flare of lupus.
As Liberty began to reevaluate Corry’s case, it sent Dr. Norris a
questionnaire dated March 30, 1999. In response, on April 30, Dr. Norris
provided Liberty with an evaluation of Corry in which he reported that her
primary diagnosis was a mixed connective tissue disorder and a seizure disorder
and that her symptoms included severe fatigue, confusion, malaise, depression,
and weakness. In response to questions about when he expected Corry to return
to modified function or full function, he noted “n/a.” Dr. Norris evaluated Corry’s
physical capabilities and concluded that she would be capable of the following
activities in an eight-hour workday: sitting 100%, lifting 0%, walking 10%,
standing 10%, carrying 0%, driving 10%, traveling 0%, and typing 10%. He
stated that she could rarely reach, bend, kneel, climb, squat, or twist. Dr. Norris
indicated that Corry had a medium degree of manual dexterity and that her
lifting ability was 10 pounds or less.
In February 2000, Liberty retained Dr. Walter Chase, a rheumatologist,
to examine Corry and evaluate her medical file. In his report, Dr. Chase
observed that Corry was “unsteady on [the] tandem walk.” Dr. Chase noted,
apparently based on Corry’s comments, that she experienced pain throughout
much of her body, numbness in her feet, dizziness, pleurisy, headaches, and
shortness of breath. Dr. Chase also noted that Corry could not perform a long
list of basic activities, apparently based on the information she self-reported.
For example, according to Corry, she was unable to do her grocery shopping or
to go out for more than one and a half hours. Corry also reported that she

6
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needed assistance with her shower and much of her daily care. She found it
difficult to comb her hair, open doors, cut meat, climb a flight of stairs, and turn
a lock. Apparently she was unable to lift a full coffee pot. She was able to do
some paperwork in the mornings, when she was at maximum mental sharpness.
Dr. Chase concluded that Corry met the criteria for fibromyalgia but that “[n]o
objective evidence was uncovered during this examination or review of records
that would result in a finding of total disability.” He also concluded that Corry
never displayed “any typical organ system manifestations” of lupus. He
recommended a functional capacity evaluation to determine Corry’s capacity for
limited work.
Within weeks of Dr. Chase’s evaluation, Liberty scheduled a functional
capacity examination for Corry to take place on March 7, 2000. The functional
capacity examination would last “most of the day.” Following advice of Dr.
Norris that “an extended examination” might cause a flare-up of her symptoms,
Corry decided not to undergo the functional capacity examination.
In November 2000, as Liberty continued to review Corry’s eligibility for
benefits, Liberty sent Dr. Norris an additional questionnaire. In his response,
Dr. Norris indicated that Corry’s disabling condition was “mixed connective
tissue disorder.” In response to a question asking “[w]hat objective
testing/findings confirm Ms. Corry is incapable of resuming employment in a full
time sedentary duty capacity,” Dr. Norris stated, “rheumatic profile, evaluation
by multiple rheumatologists.” As to when Corry could resume full-time
sedentary work, Dr. Norris stated: “Prognosis unknown.”
In January 2001, Corry was again admitted to the emergency room, where
she complained of several days of sharp pain in her abdomen. Upon extensive
evaluation, Dr. David Habenicht diagnosed her with nonspecific abdominal pain.
Thereafter, Dr. Norris referred Corry to Dr. Jeffrey Meynig, who concluded that

7
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Corry’s abdominal pain did not likely come from “an intraabdominal source of
pain” but instead appeared to be musculoskeletal.
In February 2001, Dr. Paul Pickrell examined Corry and indicated that
she continued to suffer from musculoskeletal lupus and Sjogren’s Syndrome.
In April 2001, Liberty retained Dr. Gail Brown, who specializes in physical
medicine and rehabilitation, to evaluate Corry’s file. Dr. Brown concluded that
Corry suffered from various conditions including a seizure disorder,
fibromyalgia, and a history of chronic fatigue, but that past findings of mixed
connective tissue disorder were not verified by the medical evidence. Dr. Brown
noted “a paucity of medical documentation confirming this claimant’s alleged
illnesses.” Dr. Brown concluded: “The claimant’s reported total disability is not
substantiated by the objective medical documentation. ... Based on the objective
medical documentation related to the claimant’s non-psychiatric conditions, I
find no basis to preclude this claimant from performing sedentary work.” Dr.
Brown recommended that Corry undergo a functional capacity examination.
In May 2001, Liberty scheduled Corry for an independent
neuropsychological examination to take place June 14. Corry was informed that
the exam would take seven to eight hours. Corry did not attend the exam.
Liberty then suspended Corry’s benefits, scheduled a new exam for July 10, and
told her that her failure to attend the new exam would result in complete
termination of her benefits.
In response, Corry’s attorney told Liberty that Corry would not attend the
rescheduled exam, as Dr. Norris and Dr. Paul Pickrell had advised her that the
exam could result in a “flare” of her condition. Corry’s attorney also stated that
the supervising physician in such an exam should be a rheumatologist and not

8
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a neuro-psychiatrist, but that, regardless, Corry would not attend the
rescheduled exam.8
On the basis of Corry’s refusal to attend the examinations, Liberty notified
Corry on July 13, 2001 that it was terminating her benefits. Corry appealed
Liberty’s decision.
Corry had also turned to litigation. In April 2001, Corry had filed a
complaint in Texas state court against Dell and Liberty. Corry alleged Texas
Labor Code violations, contract claims, and other theories of recovery related to
Corry’s alleged entitlement to benefits under the Policy. Dell and Liberty
removed the case to the Federal District Court for the Western District of Texas.
On August 27, 2001, the district court granted Dell’s motion for summary
judgment, and on November 14, 2001, the district court granted Liberty’s motion
to dismiss, concluding that Corry’s state claims were preempted by the Employee
Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (“ERISA”). The
district court dismissed any ERISA-based claims without prejudice for failure
to exhaust administrative remedies.
Meanwhile, Liberty began to review Corry’s appeal of its decision to
terminate her benefits. During its review, Liberty received a letter dated August
2, 2001 from Dr. Paul Pickrell describing Corry’s ailments. According to Dr.
Pickrell, Corry’s ailments caused her “constant muscle pain, fatigue, headaches
and joint pain.” He wrote: “She remains on disability and I feel that given her
current condition, she would be unable to return to any type of gainful
employment.”
Over the next several months, Liberty continued to review Corry’s
eligibility, retaining rheumatologist Dr. Andrew Porges to examine Corry’s file
“to determine Ms. Corry’s level of functionality.” Although Dr. Porges did not

8
Liberty neither accepted nor denied Corry’s request for a rheumatologist to attend the
exam.

9
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actually examine Corry, he reviewed medical records of her treating and
evaluating physicians. Dr. Porges concluded that the objective and clinical
findings in Corry’s file did not support a diagnosis of mixed connective tissue
disease, lupus, Sjogrens, or a significant musculoskeletal disorder, aside from an
impingement of the right shoulder. Dr. Porges also concluded that Corry did not
suffer from Chronic Fatigue Syndrome but that she did suffer from fibromyalgia.
In response to Liberty’s question as to whether there was “any documentation
of a significant musculoskeletal disorder that would prevent her form [sic]
performing a sedentary job,” Dr. Porges said she had an impingement in her
right shoulder that would not prevent full-time sedentary employment. Aside
from the shoulder impingement, according to Dr. Porges, “[n]o other objective
evidence of a significant musculoskeletal disorder has been provided, aside from
Ms. Corry’s subjective complaints of chronic, diffuse pain.”
Based on the medical records before him, Dr. Porges estimated Corry’s
functional capabilities. Dr. Porges concluded that, on a continual basis, Corry
could sit for 2 hours, stand for 30 minutes, or walk for 30 minutes. He also
concluded that during a typical eight-hour workday, assuming Corry could
change positions, she was capable of sitting for 8 hours, standing for 1 hour, and
walking for 1 hour. Similarly, in an eight-hour workday, she likely could reach
forward less than 18 inches frequently (i.e., 33% to 66% of the time); she could
reach forward more than 18 inches occasionally (i.e., 0% to 33% of the time); she
could climb occasionally; and she could never stoop, kneel, balance, crouch,
crawl, drive, reach above her shoulders, or work in high places. By Dr. Porges’
estimations, Corry could lift and carry 10 pounds. He also concluded that she
could handle, grasp, finger, feel, push, and pull without restriction.
Liberty also commissioned two labor market surveys. The first survey
evaluated employment opportunities in Austin, Texas for sales manager and
similar positions requiring only sedentary work. The survey concluded that all

10
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such available positions required traveling, from which Corry was restricted, and
therefore no suitable positions existed for Corry in Austin. The second survey
covered the entire United States and considered the positions of customer service
manager, telemarketing manager, and sales manager, finding seven full-time
positions for which Corry would be qualified and for which traveling was not
required.
On March 11, 2002, Liberty issued a final denial letter affirming its initial
termination of Corry’s benefits. In its letter, however, Liberty did not base its
March 11 decision on Corry’s refusal to submit to examinations, as it did when
it initially denied benefits. Instead, Liberty stated that Corry was not “disabled”
as defined in the Policy language. Liberty asserted that it had “conducted a full
and fair review of Ms. Corry’s appeal and all accompanying materials.” Liberty
told Corry she could not appeal Liberty’s March 11 decision.
Approximately seven months later, on October 30, 2002, Corry mailed
Liberty her own affidavit along with the affidavits of her two physicians, Dr.
Norris and Dr. Paul Pickrell. In their affidavits, the physicians both reaffirmed
their prior conclusions that Corry was disabled and unable to perform sedentary
work in a work environment. Liberty alleges that its appeals review consultant,
Chuck Johnson, never received the affidavits because Corry failed to list his
name on the mailing envelope. The evidence indicates that although Corry did
omit Johnson’s name from the envelope, she properly addressed the envelope to
the return address Liberty provided in its benefits denial letter. Additionally,
Corry submitted a cover letter with the affidavits. It is undisputed that the
cover letter clearly stated: “Attention: Mr. Chuck Johnson, Appeals Review
Consultant.”
II.
This lawsuit followed. On January 15, 2004, Corry filed her complaint in
federal district court. The parties conducted discovery and moved for summary

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judgment. Additionally, Liberty moved to strike from the evidence the three
affidavits Corry had submitted to Liberty on October 30, 2002.
On June 1, 2005, the district court entered final judgment. As to Liberty’s
motion for summary judgment, the district court denied it in part and granted
it in part. Additionally, the district court denied Liberty’s motion to strike the
affidavits. The district court granted Corry’s motion for summary judgment on
the basis of 29 U.S.C. § 1132(a)(1)(B) of ERISA,9 holding that Liberty’s decision
to terminate Corry’s benefits was an abuse of discretion for failure to consider
Corry’s subjective complaints of pain and disability. Because the district court
granted Corry full relief under 29 U.S.C. § 1132(a)(1)(B) of ERISA, it dismissed
her claims for any additional relief under 29 U.S.C. § 1132(a)(3) and 29 C.F.R.
§ 2560.503-1(h).10 The district court ordered that Corry was entitled to benefits
that she should have been paid from June 15, 2001 through June 1, 2005 plus
prejudgment interest, the reinstatement of her benefits effective June 1, 2005,
and reasonable attorney’s fees. Liberty appealed.
III.
This Court reviews summary judgments de novo in ERISA cases, applying
the same standards as the district court. See Baker v. Metropolitan Life Ins. Co.,
364 F.3d 624, 627-28 (5th Cir. 2004). We review an administrator’s denial of
ERISA benefits for abuse of discretion if “an administrator has discretionary

9
That provision states, in relevant part: “A civil action may be brought-- (1) by a
participant or beneficiary-- ... to recover benefits due to him under the terms of his plan ...” 29
U.S.C. § 1132(a)(1)(B) (2006).
10
Under 29 U.S.C. § 1132(a)(3) ,“[a] civil action may be brought-- ... (3) by a participant,
beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this
subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to
redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the
plan[.]” 29 U.S.C. § 1132(a)(3) (2006). Under 29 C.F.R. § 2560.503-1(h), a plan administrator
must provide a claimant with a “full and fair review.” See 29 C.F.R. § 2560.503-1(h). Corry
did not appeal the district court’s dismissal of her claims for relief under 29 U.S.C. § 1132(a)(3)
and 29 C.F.R. § 2560.503-1(h).

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authority with respect to the decision at issue.” Vega v. Nat’l Life Ins. Serv., Inc.,
188 F.3d 287, 295 (5th Cir. 1999) (en banc). Here, Liberty had discretionary
authority to determine eligibility for benefits and to construe the terms of the
plan. Therefore, we review Liberty’s decisions for abuse of discretion. See id.
Under the abuse of discretion standard, “[i]f the plan fiduciary’s decision
is supported by substantial evidence and is not arbitrary and capricious, it must
prevail.” Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th
Cir. 2004). “Substantial evidence is more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted). “An arbitrary
decision is one made without a rational connection between the known facts and
the decision or between the found facts and the evidence.” Bellaire Gen. Hosp.
v. Blue Cross Blue Shield of Mich., 97 F.3d 822, 828 (5th Cir. 1996).
Where, as here, the administrator is self-interested because it both insures
and administers the plan, we apply a “sliding scale standard” and accord
Liberty’s decision less than full deference. Vega, 188 F.3d at 295-97. “The
greater the evidence of conflict on the part of the administrator, the less
deferential our abuse of discretion standard will be.” Id. at 297. Here, although
Liberty’s dual role as administrator and insurer provides a minimal basis for a
potential conflict of interest, see Lain v. UNUM Life Ins. Co. of Am., 279 F.3d
337, 343 (5th Cir. 2002), Corry presented no further evidence with respect to the
degree that the conflict exists and affects Liberty’s decision in this case.
Accordingly, we review Liberty’s decision “with only a modicum less deference
than we otherwise would.” See Vega, 188 F.3d at 301; see also Lain, 279 F.3d at
343.11 Ultimately, “our review of the administrator’s decision need not be

11
We can find no indication that Liberty’s potential conflict of interest adversely
affected Liberty’s handling of Corry’s claim. Liberty’s review of Corry’s claim for over two and
a half years, beginning in November 1998, demonstrated a careful investigation. Furthermore,

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particularly complex or technical; it need only assure that the administrator’s
decision fall somewhere on a continuum of reasonableness -- even if on the low
end.” Vega, 188 F.3d at 297.
IV.
To determine whether Liberty abused its discretion, we begin by reviewing
the decision of the district court. The district court held that Liberty’s decision
to terminate Corry’s benefits was arbitrary and capricious because Corry’s
undisputed illness of fibromyalgia is characterized by subjective symptoms, yet
Liberty “discounted Corry’s subjective reporting of disabling pain and fatigue ...
in favor of the ‘the [sic] totality of clinical and objective findings’” and “cherry-
picked those conclusions that were grounded in objective medical criteria and
completely ignored the significance of the subjective manifestations of Corry’s
illness.” According to the district court, “Liberty apparently refused to accord
any weight to the subjective evidence of Corry’s illness and instead relied solely
on objective medical findings.” The district court found that “no physician who
properly accounted for both the objective and subjective evidence of Corry’s
limitations concluded that Corry is able to perform full-time sedentary work.”
Furthermore, the district court emphasized the disparity between the medical
opinions of Liberty’s consulting physicians and the medical opinions of Corry’s
treating physicians, Dr. Norris and Dr. Paul Pickrell, who have repeatedly
asserted in letters and affidavits12 that Corry is unable to return to work. The

Liberty engaged three specialists to examine Corry’s claim, and the opinions of these
specialists are clear and unequivocal. Accordingly, when we apply the applicable standard of
review, we do not find it doubtful but that Liberty’s decision is supported by substantial
evidence. See Ellis, 394 F.3d at 273.
12
Contrary to Liberty’s arguments, the district court did not abuse its discretion in
admitting the affidavits of Corry, Dr. Norris, and Dr. Paul Pickering; the district court correctly
concluded that the affidavits were part of the administrative record. Corry properly submitted
the affidavits to Liberty on October 30, 2002, and the affidavits were timely. Under Vega, “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

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district court concluded that by focusing on “purely objective criteria,” Liberty
abused its discretion.
Liberty disputes these conclusions of the district court. According to
Liberty, it and its consulting physicians considered all of the evidence, both
subjective and objective. Liberty argues that it was entitled to rely upon the
medical opinions of its three consulting physicians, who concluded that no
objective evidence supported a finding of disability. Corry defends each letter
of the district court’s decision.
Thus the district court’s opinion and the arguments of the parties frame
the issues presented for our resolution. The first and more salient question
presented is whether Liberty’s evaluation and consideration of Corry’s claim was
arbitrary and capricious for failing properly to consider relevant evidence, that
is, Corry’s subjective evidence of pain and disability. If Liberty’s consideration
of Corry’s evidence was not arbitrary and capricious, the second question to
resolve is whether, in the light of all the evidence, there is substantial evidence
to support Liberty’s determination that Corry can perform full-time sedentary
work. See Ellis, 394 F.3d at 273.13

fair opportunity to consider it.” 188 F.3d at 300. Here, Corry’s affidavits are within the
administrative record because she submitted them over a year before she filed this lawsuit on
January 15, 2004, thereby giving Liberty “fair opportunity” to consider them. See id.
Therefore, the district court did not abuse its discretion by admitting the affidavits. See
Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 349 (5th Cir. 2001) (“This Court reviews
the evidentiary rulings of the district court only for abuse of discretion.”).
13
The second question, as framed, is based on Liberty’s letter dated March 11, 2002
affirming its denial of benefits on the grounds that Corry’s illnesses did not “prevent her from
performing the material and substantial duties of her occupation or other sedentary-type
occupations for which she is or becomes reasonably fitted by training, education, experience,
age and physical and mental capacity” (emphasis added). Liberty initially denied Corry’s
benefits, by letter dated July 13, 2001, on grounds that Corry failed to submit to cause-specific
medical exams. As a reviewing court, however, we only review the administrator’s final
decision terminating the claimant’s benefits.

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V.
A.
With respect to Corry’s claim of pain and disability, the record leaves no
doubt that, indeed, the evidence supporting her claims is based largely on her
self-described symptoms, which no one suggests are pretended. It is also true
that Liberty and its physicians focused on the absence of objectively verifiable
medical evidence of Corry’s disability, as indicated by Liberty’s final denial letter
and the reports of Liberty’s three consulting physicians, Dr. Chase, Dr. Brown,
and Dr. Porges. Furthermore, we agree with the district court that all three
consulting physicians expressed their conclusions that Corry was not disabled
on grounds that her claimed disability was not medically verifiable, without
offering an opinion on whether Corry’s self-reported symptoms rendered her
disabled.
Nevertheless, the record shows that Liberty considered Corry’s subjective
complaints in finding her not disabled. Importantly, Liberty specifically referred
to Corry’s subjective complaints in its final denial letter. For example, Liberty
noted Dr. Norris’s 1995 diagnosis of chest pain and fatigue. Similarly, Liberty
reported that when Corry visited Dr. Michael Pickrell in February 1996, “Ms.
Corry reported concern with a variety of symptoms, including recurrent left-
sided chest discomfort, recurrent rashes, recurrent right knee discomfort.”
Liberty also noted an office note by Dr. Norris, dated September 8, 1998, which
stated: “Overall, doing better. Feels like Plaquenil is helping her[.] Still
fatigued quite easily.” Liberty noted physicians’ outpatient notes from Scott and
White Neurology Clinic, which mentioned Corry’s headaches. Liberty
summarized October 2001 office notes of another physician, Dr. Gupta, to
include “Migraine headaches under excellent control” and “myofascial pain
syndrome under excellent control with continued exercise.” Liberty referenced
Dr. Brown’s report: “Moreover, neither Dr. Skaggs nor Dr. Hill of neurology were

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able to explain this claimant’s neurological symptoms.” Finally, Liberty cited
extensively from Dr. Porges’s report. There, Liberty asked Dr. Porges whether,
among other matters, Corry met “the criteria” for fibromyalgia, an inherently
subjective inquiry. See Wolfe, et al., “The American College of Rheumatology
1990 Criteria for the Classification of Fibromyalgia. Report of the Multicenter
Criteria Committee,” 33 Arthritis & Rheumatism 160-72 (1990). Thus, although
it is certainly true that Liberty’s references to Corry’s subjective complaints were
less prominent than Liberty’s emphasis on the lack of objective medical evidence
of a disability, it is clear that Liberty’s analysis considered Corry’s subjective
complaints of disability. Furthermore, Liberty accepted Corry’s diagnosis of
fibromyalgia without requiring objective evidence to establish the malady.
It is further evident from Liberty’s final denial letter that Liberty’s
consulting physicians considered Corry’s subjective evidence, a fact reinforced
by the physicians’ individual reports. For example, all three consulting
physicians agreed that Corry suffered from fibromyalgia, and to reach this
conclusion, the physicians would have had to consider subjective evidence of
pain. See id. Dr. Chase listed Corry’s subjective complaints in great detail and
explained that Corry found it difficult to perform a wide variety of tasks
including combing her hair, opening doors, cutting meat, climbing a flight of
stairs, and turning a lock. Likewise, Dr. Brown considered Corry’s subjective
complaints:
The claimant has had complaints of wide spread myofascial pain
dating back several years. She was assessed with clinical
fibromyalgia only recently by Dr. Chase. Fibromyalgia would
explain this claimant’s wide spread musculoskeletal tenderness.
However, there is no evidence for musculoskeletal impairment or
joint abnormalities (except for the claimant’s right shoulder
condition) related to this claimant’s myofascial pain complaints and
fibromyalgia.
***

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The claimant has had symptoms of fatigue dating back to 1995,
initially related to increased stress from her job. She subsequently
was labeled with chronic fatigue syndrome. However, this claimant
has other reasons for fatigue, including recurrent sinusitis,
depression, mild anemia and observed deconditioning. Chronic
fatigue syndrome is a diagnosis of exclusion, and one cannot make
the diagnosis of chronic fatigue syndrome in the presence of other
causes of fatigue.
Additionally, Dr. Porges considered Corry’s subjective complaints:
From a rheumatology perspective, Ms. Corry’s primary diagnosis
affecting her ability to function is fibromyalgia. Ms. Corry has a
mild impairment in musculoskeletal function due to fibromyalgia
and rotator cuff sprain. She has had multiple musculoskeletal
symptoms for many years. Records do not indicate a significant
change in her complaints. Ms. Corry was noted by Dr. Pickrell, in
an 04/11/01 office note, to have complaints of costochondritis. She
was noted to have started trying to exercise as treatment for her
fibromyalgia. Ms. Corry’s records show the typical waxing and
waning of musculoskeletal complaints associated with fibromyalgia.
Records indicate that her symptoms are fairly well controlled with
treatment. She does not have evidence of loss of strength, muscle
mass, movement, reflexes or sensation to indicate significant
impairment in her ability to function. Ms. Corry’s subjective
complaints of fatigue have been attributed by Dr. Gray as being due
to Chronic Fatigue Syndrome. The classification of Chronic Fatigue
Syndrome cannot be made for Ms. Corry as records indicate several
existing conditions that may account for these complaints of fatigue,
as noted by Dr. Brown in her opinion dated 04/02/01, including
sinusitis, depression, mild anemia and deconditioning. Ms. Corry’s
complaints of fatigue are numerous and reported on many occasions
to be the primary reason for her inability to function. However, the
cause of this fatigue is not well documented, nor is there evidence
such as muscle atrophy, disheveled appearance or other objective
reports of inability to perform self-care.
(Footnotes omitted). Even though the physicians declined to offer an opinion as
to whether her subjective complaints rendered her disabled, they concluded that
there was no medical evidence to establish that she was disabled.

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Thus, Liberty and its consulting physicians considered, evaluated, and
addressed Corry’s subjective complaints. The district court concluded, and Corry
argues, however, that Corry’s subjective complaints are entitled to more weight
than the administrator gave them. But the job of weighing valid, conflicting
professional medical opinions is not the job of the courts; that job has been given
to the administrators of ERISA plans. See Gothard v. Metropolitan Life Ins. Co.,
No. 06-50386 (consolidated with No. 06-50564), 2007 WL 1830736, at *3 (5th Cir.
June 27, 2007) (“[P]lan fiduciaries are allowed to adopt one of two competing
medical views, a rule which resolves this appeal in favor of [the administrator].
... [The administrator’s] decision may not be correct, but we cannot say that it
was arbitrary.”). We only review for abuse of this discretion that has been given
to the administrator. Vega, 188 F.3d at 295. Here, the administrator, and the
medical experts upon which it relied, understood and accepted the diagnosis of
fibromyalgia; and they considered the subjective evidence Corry offered. It is
true that the administrator did not accept the opinion of Corry’s experts as to the
disabling effects of her symptoms. However, given the three qualified medical
experts who found no objective medical evidence of disability, the administrator,
under the established standard of review that restricts the courts, was not
obliged to accept the opinion of Corry’s physicians. In this “battle of the experts”
the administrator is vested with discretion to choose one side over the other. See
Gothard, 2007 WL 1830736, at *3. In sum, the claim that the administrator was
arbitrary and capricious in failing to consider and give proper weight to relevant
evidence must be rejected.
B.
Accordingly, we now turn to consider whether, in the light of all of the
evidence relating to Corry’s disability, substantial evidence supports Liberty’s
determination that Corry can perform full-time sedentary work. The district
court did not specifically address this question because it concluded that

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Liberty’s denial of disability was arbitrary and capricious on grounds that it
failed properly to consider and thus to give proper weight to Corry’s subjective
evidence of disability.
On appeal, Corry does not argue that the consulting physicians’ opinions,
which found no objective medical evidence of disability, are inadmissible expert
testimony; Corry only argues that the opinions are inadequate to establish a
finding of no disability because they effectively disregard her subjective pain and
resulting disability and should therefore be discounted accordingly. We have
already addressed this point.
Liberty argues that the medical opinions of the three consulting physicians
constitute substantial evidence in support of Liberty’s decision. These
physicians, after reviewing all of the evidence of Corry’s symptoms, had the
following bottom-line conclusions. Dr. Chase, a rheumatologist, concluded: “No
objective evidence was uncovered during this examination or review of records
that would result in a finding of total disability.” Dr. Brown, who specializes in
physical medicine and rehabilitation, summarized: “The claimant’s reported
total disability is not substantiated by the objective medical documentation.” Dr.
Porges, a rheumatologist, reported: “Ms. Corry has a history of significant
impingement of the right shoulder, which would not prevent full time sedentary
employment; however, it may limit reaching with her arm while performing
sedentary duties. No other objective evidence of a significant musculoskeletal
disorder has been provided, aside from Ms. Corry’s subjective complaints of
chronic, diffuse pain.”
It seems indisputable that the medical opinions of Liberty’s three
consulting physicians, each of whom are specialists and qualified experts in
fields specifically related to Corry’s symptoms, constitute substantial evidence
supporting Liberty’s determination that Corry has no disability that would
preclude her from performing sedentary work. See Ellis, 394 F.3d at 273. We

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might well assume, as the district court essentially did, that the totality of
Corry’s subjective complaints could suffice to establish substantial evidence of
disability; nevertheless, “[t]he law requires only that substantial evidence
support a plan fiduciary’s decisions, including those to deny or to terminate
benefits, not that substantial evidence (or, for that matter, even a
preponderance) exists to support the employee’s claim of disability.” See id.
Only recently have we once again emphasized that an administrator does not
abuse its discretion by relying on the medical opinions of its consulting
physicians instead of the medical opinions of a claimant’s treating physicians.
See Gothard, 2007 WL 1830736, at *3 (citing Gooden v. Provident Life &
Accident Ins. Co., 250 F.3d 329, 335 n.9 (5th Cir. 2001); MediTrust Fin. Servs.
Corp. v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir. 1999); Sweatman v.
Commercial Union Ins. Co., 39 F.3d 594, 597 (5th Cir. 1994)); see also Vercher
v. Alexander & Alexander Inc., 379 F.3d 222, 233 (5th Cir. 2004). Accordingly,
the opinions of the three consulting physicians constitute substantial evidence
in support of Liberty’s determination that Corry has no disability that precludes
full-time sedentary work. See Ellis, 394 F.3d at 273.
VI.
We sum up. Looking at the case as a whole, the record shows that Liberty
considered Corry’s claim of disability related to fibromyalgia thoroughly for
several years while continuing to pay her benefits. On November 3, 1998,
Corry’s initial 36-month disability period ended and she became subject to the
Policy’s heightened definition of “disability.” Thereafter, Liberty began to
reevaluate Corry’s condition to determine whether she met the Policy’s standard
of disability. On March 30, 1999, Liberty sent Dr. Norris a questionnaire
regarding Corry’s condition, inquiring as to supporting objective medical
evidence and her subjective symptoms, such as severe fatigue, confusion,
malaise, depression, and weakness. In February 2000, Liberty retained Dr.

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Chase to examine Corry and her medical file, which reflected the examinations,
reports, and opinions of other physicians. In March 2000, on the advice of Dr.
Chase, Liberty scheduled a functional capacity examination of Corry, but Corry
refused to undergo the examination on the advice of her physician, Dr. Norris.
Liberty continued to evaluate her claims and sent an additional questionnaire
to Dr. Norris in November 2000. Furthermore, Liberty asked another physician,
Dr. Brown, to review Corry’s medical file in April 2001. On the advice of Dr.
Brown, Liberty scheduled Corry for an independent neuropsychological
examination to take place June 14, 2001. Corry refused to attend the exam, and
when Liberty rescheduled the exam for July 10, Corry again refused to attend
on the advice of her physicians. It was only at this point that Liberty terminated
Corry’s benefits; still, Liberty continued its investigation and asked Dr. Porges
to review Corry’s medical file. Liberty then used the results of Dr. Porges’ report
to conduct a labor market study regarding the availability of sedentary jobs
fitting Corry’s experience and qualifications.
Ultimately, then, Liberty investigated and evaluated Corry’s claim for over
two and a half years, and obtained three specialists to review all of the evidence,
one of whom additionally conducted an examination of Corry. As we have set
out above, the record shows that Liberty and its physicians considered the
evidence of disability submitted by Corry, including her subjective complaints
of pain and disability, and that Liberty based its decision on substantial evidence
of the medical opinions of three well-qualified specialists clearly stating that
there was no verifiable objective medical evidence to support Corry’s claim of
disability. We therefore can only conclude that Liberty did not abuse its
discretion, and that the basis for its termination of Corry’s benefits is supported
by substantial evidence.

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VII.
For the foregoing reasons, we REVERSE summary judgment in favor of
Corry, RENDER judgment in favor of Liberty, and REMAND for entry of
judgment.
REVERSED; RENDERED; REMANDED.

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