                                                NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                               _____________

                                No. 10-2899
                               _____________

                            LUCIANA BAKER,
                                    Appellant

                                      v.

            THE HARTFORD LIFE INSURANCE COMPANY;
           BLOOMBERG, LP - NEW YORK ADMINISTRATOR
        OF THE BLOOMBERG LP LONG-TERM DISABILITY PLAN
                         _____________

               On Appeal from the United States District Court
                         for the District of New Jersey
                       District Court No. 3-08-cv-06382
               District Judge: The Honorable Freda L. Wolfson
                                ______________

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               July 15, 2011

            Before: RENDELL, SMITH, and ROTH, Circuit Judges

                            (Filed: July 27, 2011)

                          _____________________

                                 OPINION
                          _____________________

SMITH, Circuit Judge.

     Luciana Baker was denied benefits through her employer’s long-term
disability benefits program. She contested this determination in federal court. The

District Court concluded that the claims administrator’s decision was not arbitrary

or capricious and granted summary judgment in favor of the employer. We agree

and will affirm.

      Baker was an employee of Bloomberg, L.P. She spent most of her shift at

her desk. Baker began to experience back pain in early 2007 and, on February 5,

she took leave under the Family and Medical Leave Act. She applied for and

received short-term disability benefits on account of “chronic lower back pain and

disc disease with acute exacerbation.” Baker’s treating physician, Dr. Paul Cooke,

placed her on a strengthening and stabilization exercise program.

      Baker’s condition improved under Dr. Cooke’s regimen. He advised,

however, that she should not return to work if her position required “prolonged

sitting.” Baker did not return to work. She instead filed an application for long-

term disability benefits. These benefits were available to eligible Bloomberg

employees who participated in the company’s ERISA-compliant Group Long-

Term Disability Insurance Plan. The Plan set forth an employee’s eligibility for

long-term benefits as follows:

             Disability means that during the Elimination Period and
             the following 24 months, Injury or Sickness causes
             physical or mental impairment to such a degree of
             severity that [the claimant is]:

             1) continuously unable to perform the Material and
                                          2
             Substantial Duties of [her] Regular Occupation; and

             2) not Gainfully Employed.

A “material and substantial” duty is one that encompasses the “necessary functions

of [the claimant’s] Regular Occupation which cannot be reasonably omitted or

altered.” Bloomberg retained discretion to determine benefit eligibility under the

Plan. It delegated this authority to defendant The Hartford Life Insurance

Company.

      During Hartford’s claim review, Bloomberg produced a Physical Demands

Analysis regarding Baker’s position. This document indicated that Baker’s

“typical work day entail[ed] seven (7) hours of sitting, a half-an-hour of standing

(.5) total, and a half-an-hour of walking (.5).” The document further indicated that

Baker could “[a]lternate sitting and standing as needed.” Bloomberg also offered

to modify Baker’s work station “regarding sitting v. standing ratio.” Shortly after

its receipt of the Physical Demands Analysis, Hartford corresponded with Dr.

Cooke. He confirmed that Baker’s “only activity limitations and restrictions were

to limit prolonged sitting and avoid heavy lifting.” On September 14, 2007,

Hartford denied Baker’s application for long-term disability benefits after

concluding that she was able to perform the “essential duties” of her position.

      Baker filed an administrative appeal. Pursuant to ERISA regulations,

Hartford retained an independent medical examiner, Dr. John Nemunaitis, to

                                          3
review the medical evidence. He spoke with several of Baker’s physicians,

including Dr. Cooke, before concluding that Baker could return to work. Hartford

affirmed its initial benefits decision shortly thereafter. Baker appealed that

decision to the District Court, which had jurisdiction to review the administrative

determination pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(a)(1)(B). The

District Court granted summary judgment in Hartford’s favor. We have

jurisdiction to review its judgment under 28 U.S.C. § 1291.

         Our review of an order granting summary judgment is plenary. Roth v.

Norfalco LLC, --- F.3d ---, 2011 U.S. App. LEXIS 13119, at *12 (3d Cir. June 28,

2011). Under Federal Rule of Civil Procedure 56, summary judgment is

appropriate “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

         Hartford was vested with discretion to determine Plan eligibility and an

employee’s entitlement to benefits. Its decision is thus subject to reversal only if it

was arbitrary or capricious.1 Doroshow v. Hartford Life & Accident Ins. Co., 574

F.3d 230, 233–34 (3d Cir. 2009). This standard permits a court to overturn a plan

1
 Baker argues that a New Jersey regulation, N.J. Admin. Code § 11:4-58.3, requires a different
standard of review. There are a variety of reasons why this is not so. Most importantly (and as
discussed by the District Court), an employee may challenge a claim determination in federal
court. Thus, the Plan does not, as Baker suggests, reserve “sole discretion to the carrier.” See
N.J. Admin. Code § 11:4-58.3 (stating that a group health insurance policy may not contain a
provision “purporting to reserve sole discretion to the carrier to interpret the terms of the policy
or contract”).
                                                 4
administrator’s decision where “it is without reason, unsupported by substantial

evidence or erroneous as a matter of law.” Id. at 234. Our review must also take

into account the fact that Bloomberg delegated authority to Hartford to evaluate

claims and pay plan benefits. As a result, Hartford acted under a conflict of

interest. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 108 (2008). We must

consider this conflict “as a factor in determining whether the plan administrator has

abused its discretion in denying benefits.” Id.

      Hartford did not act arbitrarily or capriciously. To be eligible for long-term

disability under the Plan, Baker had to prove that she was continuously unable to

perform the material and substantial duties of her regular occupation. As Dr.

Cooke indicated, prolonged sitting was the central obstacle to Baker’s resumption

of her duties. Dr. Cooke, however, informed Hartford that Baker could return to

work if she could avoid sitting for prolonged periods. Bloomberg was open to

modifying Baker’s work station so that the “sitting v. standing ratio” was more

conducive to Baker’s requirements. Baker, however, never returned to her position

and, thus, never attempted to work under the modified conditions. As the District

Court explained, Baker did not carry her burden to show that, in spite of the

modifications, she was unable to perform the necessary functions of her

occupation. The District Court was correct to enter a judgment in Hartford’s favor.



                                          5
