                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                MAY 25, 2005
                               No. 04-16246                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket No. 03-00221-CV-DF-5

LINDA SALTER,


                                                            Plaintiff-Appellant,

                                     versus

CONTINENTAL CASUALTY COMPANY,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                       _________________________

                                 (May 25, 2005)

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

     Plaintiff-appellant Linda Salter, a registered nurse who was seeking to
recover long term disability benefits under an insurance policy issued by

Defendant-appellee Continental Casualty Company (“Continental”), appeals the

district court’s grant of summary judgment in favor of Continental. Salter argues

that summary judgment was improperly granted because she adduced sufficient

evidence to raise a genuine issue of fact as to whether she was totally disabled as

defined by the insurance policy. We AFFIRM.

                                I. BACKGROUND

      As of 1996, Salter was employed as a nurse at Northside Hospital in Macon,

Georgia. During the time of her employment, the hospital was owned by Quorum

Health Group, Inc., which offered an employee welfare benefit plan governed by

the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq.

(“ERISA”). The benefit plan, which Salter opted to join, included disability

insurance in the event a worker became disabled and was unable to perform his or

her job function. The disability insurance contained an initial “elimination period,”

during which no benefits would be paid for 150 days following a worker’s

disablement. If the worker remained disabled after the expiration of the

elimination period, he or she could qualify to receive twenty-four months of

benefit payments. To qualify for these payments, the worker had to demonstrate

“total disability,” which, as defined by the policy, meant that the worker: (1) was



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“continuously unable to perform the substantial and material duties of [his or her]

own occupation”; (2) was “under the regular care of a licensed physician”; and (3)

was “not gainfully employed in any occupation for which [he or she was or

became] qualified by education, training, or experience.” R2-55 at 3. The policy

also provided for additional benefit payments after the expiration of the twenty-

four month period. To qualify for these payments, the worker had to satisfy a

stricter standard for “total disability,” namely that the worker: (1) was

“continuously unable to engage in any occupation for which he [or she was or

became] qualified by education, training, or experience”; and (2) was “under the

care of a regular physician.” Id. at 4.

      Salter became disabled on 24 September 1996 and was unable to perform

her job functions due to back pain and loss of control of her legs. During the 150-

day elimination period, Salter underwent surgery to correct certain cervical,

thoracic, and lumbar disc protrusions which were causing the pain in her back and

legs. Although the neurosurgeon who performed the surgery, Dr. Peter Holliday,

indicated in December 1996 that Salter was recovering well from the surgery, he

stated that Salter would not be able to return to work until at least June 1997. As a

result, after the expiration of the elimination period, Salter began to receive benefit

payments on 21 February 1997 because she was able to demonstrate that she was



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totally disabled as defined by the policy. She continued to receive disability

payments based on the post-elimination-period definition of “total disability” until

20 February 1999.

      After the expiration of the twenty-four month benefit period provided by the

disability policy in February 1999, Continental continued to pay Salter disability

benefits. On 29 April 1999, however, Holliday released an Attending Physician

Statement (“APS”) in which he cleared Salter to perform light duty work. Holliday

imposed the specific restrictions that Salter should alternate standing for one hour

with sitting for one hour, should not lift more than twenty pounds, should not twist

her lower back, and should not work with her arms above her shoulders. Based on

Holliday’s APS, Continental sent a letter to Salter that indicated she was capable of

performing light duty work and, based on vocational assessment reports that had

been previously compiled for Salter, suggested three job positions that Salter could

fulfil. Moreover, based on the APS and the vocational assessments, Continental

indicated that it would discontinue Salter’s disability payments on 20 May 1999.

Salter appealed to Continental to have her benefits restored, but her appeals were

unsuccessful. Accordingly, she filed suit in Georgia state court in June 2003 and

alleged that she was wrongfully denied disability benefits. Continental

subsequently removed the action to federal court.



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      Following discovery, both Continental and Salter moved for summary

judgment, and the district court granted summary judgment in favor of Continental.

In making its determination, the district court found that Holliday’s APS and the

vocational assessments offered by Continental demonstrated that Salter was not

“totally disabled” from performing any occupation as required for the receipt of

benefits at this stage under the policy. Because Salter presented no evidence to

raise a genuine issue of fact as to this conclusion, the district court found that

summary judgment was warranted. On appeal, Salter argues that the district court

erred because she had presented sufficient evidence to create a question of fact as

to her disability. Particularly, she cites Continental’s payment of benefits beyond

February 1999 and the strict limitations imposed by Holliday in his APS as

evidence that she was totally disabled from performing any occupation. In

addition, she faults the district court for relying on the vocational assessments

because they lacked credibility.

                                   II. DISCUSSION

      We review de novo the district court’s grant of summary judgment in a case

involving a claim for benefits governed by ERISA. See Williams v. BellSouth

Telecomms., Inc., 373 F.3d 1132, 1138 (11th Cir. 2004). In making this inquiry,

“[w]e view all evidence and factual inferences reasonably drawn from the evidence



                                            5
in the light most favorable to the non-moving party.” See Burton v. Tampa Hous.

Auth., 271 F.3d 1274, 1277 (11th Cir. 2001). Summary judgment is appropriate

“if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.

Ct. 2548, 2553 (1986). Once the moving party has properly supported its motion

for summary judgment, the burden shifts to the nonmoving party to come forward

with specific facts showing that there is a genuine issue for trial. See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356

(1986) (citation omitted). “Where the record taken as a whole could not lead a

rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for

trial.’” Id.

       After a careful review of the record and the contentions of the parties, we

conclude that the district court properly granted summary judgment. Continental

supported its motion for summary judgment with the evidence of Holliday’s APS

and two vocational assessments which demonstrated that Salter was not totally

disabled from engaging in any employment. As a result, the burden shifted to

Salter to present evidence which created a question of fact as to her disability. Id.



                                           6
She failed to meet this burden. Despite her argument to the contrary, the fact that

Continental paid benefits past the expiration of the initial twenty-four month period

did not conclusively establish that she was able to meet the stricter standard of

being totally disabled from any occupation. See Turner v. Delta Family-Care

Disability & Survivorship Plan, 291 F.3d 1270, 1273-1274 (11th Cir. 2002) (per

curiam) (finding summary judgment was properly granted because the plaintiff

failed to demonstrate that she was totally disabled even though she had been

receiving disability payments for two years prior to the determination that she was

no longer totally disabled). In addition, the restrictions imposed on Salter by her

treating physician in his APS did not create a fact question as to whether she was

totally disabled. See id. (finding a worker was not totally disabled where the

treating physician restricted a worker to lifting no more than ten pounds and

advised against any repetitive lifting, twisting, or bending). In fact, although it

imposed some restrictions on the work she could perform, Holliday’s APS cleared

Salter to perform light duty and therefore established that she was capable of

working. Finally, we reject Salter’s argument that she raised a genuine issue of

fact by questioning the district court’s reliance on certain vocational assessments

prepared by Continental. In its motion, Continental cited the APS prepared by

Holliday as evidence that she was not incapable of performing any occupation



                                           7
because of her disability. To create a genuine issue of fact on this point, Salter had

to adduce evidence which demonstrated she was totally disabled. See Shaw v.

Conn. Gen. Life Ins., 353 F.3d 1276, 1286-87 (11th Cir. 2003) (reversing grant of

summary judgment because plaintiff offered statements by physicians which

directly contradicted the statements of other physicians which concluded the

plaintiff was not totally disabled). Because her arguments about the reliability of

vocational assessments did not call into question Holliday’s conclusion that she

was not totally disabled, they are insufficient to warrant a reversal of the district

court’s grant of summary judgment. In sum, Salter failed to present any evidence

which raised a genuine issue of fact as to her total disability, and therefore

summary judgment was properly granted in favor of Continental. See Williams,

373 F.3d at 1139 (concluding summary judgment was appropriate where there was

no evidence from any physician that plaintiff was completely incapable of

working); Turner, 291 F.3d at 1274 (finding summary judgment was properly

granted where the plaintiff’s own treating physician indicated plaintiff was capable

of performing some work, albeit with certain restrictions).

                                 III. CONCLUSION

      In this appeal, Salter maintained that the district court erred by granting

summary judgment in favor of Continental based on the APS of Salter’s treating



                                            8
physician and certain vocational assessments which indicated that Salter was not

totally disabled. As we have explained, Salter failed to present any evidence which

created a genuine issue of fact as to whether she was totally disabled as defined by

Continental’s disability insurance policy. Accordingly, she could not establish as a

matter of law that she was entitled to long term disability benefits under the policy,

and therefore the district court’s grant of summary judgment is AFFIRMED.




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