                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3415
                         ___________________________

                                     John Johnston

                         lllllllllllllllllllllPlaintiff - Appellant

                                            v.

                    Prudential Insurance Company of America

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                     Appeal from United States District Court
              for the Western District of Missouri - Western Division
                                  ____________

                           Submitted: December 11, 2018
                             Filed: February 25, 2019
                                  ____________

Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
                             ____________

GRASZ, Circuit Judge.

       John Johnston appeals a district court1 order finding that Prudential Insurance
Company of America (“Prudential”) did not abuse its discretion when it terminated
his long term disability benefits. We affirm the district court’s order.


      1
        The Honorable David Gregory Kays, then Chief United States District Judge
for the Western District of Missouri, now United States District Judge for the Western
District of Missouri.
                                   I. Background

       Johnston was an Enterprise Storage Engineer in the computer department at
Commerce Bancshares, Inc. (“Commerce”). As part of an employee welfare benefit
plan (the “Plan”), Commerce provided its employees long-term disability (“LTD”)
insurance from Prudential.

       In July 2013, Johnston became unable to continue working due to complications
from hydrocephalus, which ultimately led to surgery to remove a colloid cyst from his
brain. Johnston filed a claim for LTD benefits with Prudential. Dr. Kala Danushkodi,
Johnston’s treating physician, submitted a statement that Johnston had “cognitive
impairment / moderate to severe” and was unable to return to work due to the
impairment.

      Prudential sent Johnston a letter approving his claim for LTD benefits in
November 2013. Prudential also requested the results of two neuropsychological
examinations “for the ongoing review of your claim and benefits beyond December
31, 2013.” It further advised that it would “periodically review your claim, and
request or obtain information, to ensure that you meet all eligibility requirements.”

       After receiving and reviewing the results of Johnston’s examinations, Prudential
staff noted that one of the tests was not valid due to Johnston’s inconsistent
performance. After Johnston underwent an additional surgery in March 2014 to place
a shunt in his head, Prudential decided that another neuropsychological evaluation was
needed to determine whether he continued to be disabled.

     Neuropsychologist Dr. Robert Denney examined Johnston in June 2014. Dr.
Denney used multiple tests for the validity of Johnston’s responses, both “embedded”



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and “free-standing.”2 He was unable to determine whether Johnston was cognitively
impaired because Johnston failed almost all of the validity tests. Dr. Denney opined
that two of the free-standing validity tests indicated that Johnston “was actively
attempting to perform poorly.” In a supplemental addendum to his report, Dr. Denney
reviewed the data from two of Johnston’s previous examinations. He did not change
his conclusions about Johnston because one examination had failed validity indicators,
while the other examination had inconsistent results that suggested invalidity.

      Based on Dr. Denney’s report and addendum, Prudential terminated Johnston’s
LTD benefits as of September 1, 2014. It determined that Johnston had failed to
support his claim that he was still unable to work due to cognitive impairment.

      Johnston appealed the termination of his LTD benefits. In support of his
appeal, he submitted a statement from his therapist, Dr. Marcia Meyer, explaining that
he was exhausted by Dr. Denney’s tests and that he was unable to maintain the focus
and concentration needed for his job.

       After reviewing Johnston’s appeal, Prudential sought a second
neuropsychological examination. Dr. Michelle Zeller examined Johnston in June
2015, and she reported that he failed all nine validity measures on the tests she
administered. She concluded that he was attempting to appear more impaired than he
actually is, and she stated that she was unable to determine his level of impairment.
Dr. Zeller explained: “Failure on any one of these measures would raise the possibility
of negative response bias, suboptimal effort and/or symptom exaggeration. Failure
on all nine, however, is compelling evidence of suboptimal effort.”



      2
       As Dr. Denney explained, “[f]reestanding tests usually appear to measure a
domain such as memory, whereas, in reality, the test would only show impairment for
those individuals with extremely severe memory impairment,” while “[e]mbedded
indices, on the other hand, are inside traditional, neuropsychological testing.”

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        Prudential upheld its denial of LTD benefits, and Johnston sued Prudential
under 29 U.S.C. § 1132(a)(1)(B), a part of the Employee Retirement Income Security
Act of 1974 (“ERISA”). On cross-motions for summary judgment, the district court
granted summary judgment to Prudential and denied Johnston’s motion. Johnston
filed a motion to reconsider, which the court denied on the basis that it did not contain
any new evidence or arguments not previously available. Johnston timely appealed.

                               II. Standard of Review

       “We review the district court’s adjudication of [an ERISA] claim de novo,
applying the same standard of review to the plan administrator’s decision as the
district court.” McClelland v. Life Ins. Co. of N. Am., 679 F.3d 755, 759 (8th Cir.
2012). “When an ERISA-qualified employee benefit plan grants the plan
administrator the discretion to determine whether a claimant is eligible for benefits,
review of the administrator’s decision is for an abuse of discretion.” Id. “The
administrator’s decision should be affirmed if it is reasonable, meaning it is supported
by substantial evidence.” Green v. Union Sec. Ins. Co., 646 F.3d 1042, 1050 (8th Cir.
2011). “Substantial evidence is more than a scintilla but less than a preponderance.”
Id. “[W]hen a conflict of interest exists because the plan administrator is both the
decision-maker and the insurer, ‘we take that conflict into account and give it some
weight in the abuse-of-discretion calculation.’” Nichols v. Unicare Life & Health Ins.
Co., 739 F.3d 1176, 1181 (8th Cir. 2014) (quoting Carrow v. Standard Ins. Co., 664
F.3d 1254, 1259 (8th Cir. 2012)).

                                     III. Analysis

       Johnston acknowledges that the Plan gives Prudential discretion to determine
eligibility for benefits and that, as a result, an abuse of discretion standard applies.
Thus, the question on review is whether Prudential abused that discretion.



                                          -4-
       The Plan placed the burden on the beneficiary to provide proof of disability,
including continuing disability. The Plan states, “We will stop sending you payments
and your claim will end on the earliest of the following:” including, among other
things, “[t]he date you fail to submit proof of continuing disability satisfactory to
Prudential.” Because ERISA allows a beneficiary to sue “to recover benefits due to
him under the terms of his plan,” a plan may place the burden of proving eligibility
on the beneficiary. See Farley v. Benefit Tr. Life Ins. Co., 979 F.2d 653, 658 (8th Cir.
1992) (emphasis added) (quoting 29 U.S.C. § 1132(a)(1)(B)).

         We agree with the district court that the standard of review is dispositive in this
case. Johnston presented some evidence from his medical providers that he was
disabled. He genuinely had a colloid cyst in his brain, and the Social Security
Administration’s (“SSA’s”) reviewers found that he was “disabled” under the SSA’s
definition of disability. But Prudential also had evidence that Johnston was
deliberately exaggerating his symptoms, making it impossible to determine whether
he had cognitive deficiencies that rendered him disabled. Prudential’s examinations
also occurred after the SSA’s review of Johnston’s condition, meaning that the SSA
did not know about Johnston’s potential malingering. Thus, as the district court
stated, although a court “might have reached a different conclusion” under de novo
review, a court could find no abuse of discretion here because “Prudential’s decision
is still supported by substantial evidence.”

       Johnston argues that because his evidence indicates he was disabled and
Prudential’s examining doctors could not determine whether this was true, Prudential
needed to introduce new evidence to show that he was not disabled. He cites no
authority for the proposition that the burden of proof shifts after an initial
determination of disability. Johnston cites Gunderson v. W.R. Grace & Co. Long
Term Disability Income Plan, 874 F.2d 496 (8th Cir. 1989) to argue that Prudential
should have obtained a vocational rehabilitation opinion. In Gunderson, we stated
that even if the beneficiary bears the burden of proof, a plan administrator cannot

                                            -5-
change its understanding of the same opinions from the same doctors without
substantial evidence supporting the new understanding. See id. at 499–500 & n.4. It
was undisputed in Gunderson that the beneficiary was disabled for over two years.
Id. at 498. The plan administrator received reports on Gunderson’s condition from his
treating physician after one year, after two years, and after four years. See id. at 499.
We acknowledged the plan administrator may have had discretion to terminate
benefits under the second report. Id. at 500. Because Gunderson’s condition was the
same in the third report as in the second report, though, we found no substantial
evidence supporting the plan administrator’s decision to terminate benefits when it
received the third report after continuing them under the second report. Id. We
suggested, based on those facts, that the plan administrator should have obtained a
vocational expert’s opinion before making a different decision on evidence that was
otherwise the same. Id. at 499.

      Here, Dr. Denney’s report and Dr. Zeller’s report support a new understanding
of Johnston’s prior medical evidence: that he was malingering. This case is different
from Gunderson because Prudential had evidence allowing it to reassess the prior
evidence the beneficiary submitted. Thus, because Prudential’s changed decision was
supported by new evidence, as required in Gunderson, and because no authority
requires shifting the burden of proof to Prudential, we decline to adopt Johnston’s
burden-shifting approach.

       Johnston also argues that if this termination is upheld, insurers will have an
incentive to claim beneficiaries are malingering in order to terminate benefits and save
money. This could be a persuasive argument if the determination of malingering were
a purely subjective or opinion-based determination, but there are multiple established
ways to test validity of a neuropsychological examination. Dr. Denney extensively
discussed which tests he administered and how these tests objectively measure
validity. On review of the validity tests administered to Johnston, we see no basis to



                                          -6-
conclude that Prudential’s evidence of malingering was subjective or otherwise
manipulable by bias.

       In sum, under our de novo review, we agree with the district court that
Prudential did not abuse its discretion in terminating Johnston’s benefits. There was
substantial evidence to support Prudential’s conclusion that Johnston may have been
malingering in the tests he used as evidence to prove disability. As a result, Johnston
failed to provide sufficient evidence of continuing disability.

                                   IV. Conclusion

      We affirm the district court’s order because Prudential’s decision was not an
abuse of discretion.
                      ______________________________




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