                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-2307



PAUL B. MITCHELL, JR.,

                                              Plaintiff - Appellee,


           versus

FORTIS BENEFITS INSURANCE COMPANY,

                                             Defendant - Appellant,

           and

ADVANCED  POLYMER,  INCORPORATED,  Employee
Benefits Plan and Plan Administrator; KUNI
NAKAMURA,

                                                         Defendants.


Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CA-02-5-5-V)


Argued:   May 26, 2005                      Decided:   July 29, 2005


Before WILKINS, Chief Judge, and WILKINSON and GREGORY, Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Joshua Bachrach, RAWLE & HENDERSON, Philadelphia, Pennsylvania, for
Appellant.   Bruce Merle Simpson, JAMES, MCELROY & DIEHL, P.A.,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

     This    lawsuit      involves     a   claim   for   long-term   disability

benefits under a group plan (“the Plan”) governed by the Employee

Retirement Income Security Act of 1974 (“ERISA”).                 Paul Mitchell

(“Mitchell”) claims that Fortis Benefits (“Fortis”) wrongfully

terminated his long-term disability benefits, thus abusing its

discretion, in violation of various procedures under ERISA and

North Carolina law.             Fortis appeals from the district court’s

denial of its motion for summary judgment, the court’s judgment in

Mitchell’s favor on his claim for disability benefits, and the

awarding of attorney’s fees to Mitchell.             After careful review, we

affirm in part, vacate in part, and remand for further proceedings

in accordance with this opinion.



                                           I.

     Mitchell began working for Advanced Polymer, Inc. (“Advanced

Polymer”)1    as    a   sales    representative    in    the   textile   chemical

industry     on    September     1,   1997.     Mitchell’s     job   involved   a

substantial amount of travel, driving an average of five hours a

day, for a total of approximately 1500 to 2000 miles per week.

According to Mitchell, he began experiencing symptoms of back pain

in June 1998.


     1
      Advanced Polymer was originally named as a defendant along
with Fortis, however, in July 2002 Mitchell dismissed all claims
against Advanced Polymer.

                                           3
        In April 1999, Mitchell’s treating physician, Mark A. Goodson,

M.D.2       determined      that    Mitchell       suffered        from   chronic   lumbar

discogenic disease primarily due to degenerative changes in his

lower       back.     Dr.     Goodson    advised         Mitchell     against    surgical

intervention.         He did recommend a regular course of care with a

chiropractor, physical therapy, a low impact exercise regimen, and

anti-inflammatory medication.              He further advised Mitchell “that

1500 miles per week in an automobile is certainly contraindicated

for his low back problem” and would likely “advance the progression

of his disease.”          J.A. 897.      Dr. Goodson suggested that Mitchell

obtain a “sit down job where he would be able to stand up and walk

around approximately every 20 minutes.”                      Id.

        By November 1999, Mitchell’s condition had worsened.                             He

complained       to   Dr.    Goodson    that       his   back      pain   increased   with

prolonged       sitting     or     prolonged       driving    and    that   he   found   it

difficult to assume an erect posture after a long drive.                              Once

again, Dr. Goodson recommended that he discontinue the extensive

travel.        On November 16, 1999, Mitchell submitted a long-term

disability claim based on complaints of chronic back pain.                               By

November 17, 1999 he was no longer reporting to work.                            Mitchell


        2
      Dr. Goodson is a physiatrist with the Rehabilitation Medicine
& Pain Center.     A physiatrist is a physician specializing in
physical medicine and rehabilitation. Physiatrists treat acute and
chronic pain and musculoskeletal disorders that often result in
severe functional limitations.



                                               4
underwent further testing on November 22, 1999 and radiology

reports revealed that he suffered from mild scoliosis of the lumbar

spine with slight retrolisthesis of L2 and L3.     Later that month,

Mitchell requested a prescription for pain from Dr. Goodson and was

prescribed Darvocet-N 100.

     On December 6, 1999, Mitchell reported to Dr. Goodson that his

pain, which he described as “a burning type pain with an occasional

‘numb’ type pain,” had improved since he had resumed physical

therapy and quit working.    Record on Appeal, Doc. Entry #22 at 542.

On December 10, 1999, Mitchell saw T. Scott Ellison, M.D., an

orthopedic specialist.   Dr. Ellison obtained x-rays of Mitchell’s

back, which revealed a degenerative collapsing lumbar scoliotic

pattern, apex to the left.     He noted that Mitchell’s disc spaces

were fairly well preserved, with some narrowing of L4-5 with facet

joint arthrosis. After reviewing Mitchell’s MRI scan from February

16, 1999, Dr. Ellison indicated that there were degenerative disc

signal changes at multiple levels.     Dr. Ellison advised Mitchell

that his symptoms could be caused by the degenerative disc in his

back, but that his lifestyle habits, namely extensive driving could

be the cause as well.

     Mitchell’s claim was referred to Fortis’ Clinical Services

Department (“Clinical Services”) for review on March 6, 2000.

Based on medical and physical-therapy notes from December 22, 1999

through February 23, 2000, Mitchell’s condition had improved -- he


                                   5
showed increased range of movement and his area of pain had

diminished.     However, Dr. Goodson determined on February 22, 2000

that he “had suffered permanent partial impairment of his spine 5%

relative to his lower thoracic and lumbar spine injuries requiring

long-term     pain    management     and       likely    long-term    chiropractic

manipulative care.”         J.A. 900.          Nevertheless, Clinical Services

reviewed     Mitchell’s      medical    records         and   concluded     that    no

compelling     medical     information         supported      limitations    from    a

primarily sedentary position that allowed for position changes.

However, Clinical Services noted it “appears pain would prevent

claimant from performing his occupation on a full-time basis.”

Record on Appeal, Doc. Entry #22 at 486.

       On   March    24,   2000,   Clinical       Services     conducted    a   phone

interview of Mitchell.        Its report indicates that Fortis was aware

that   Mitchell’s therapy was being phased out and that he was able

to drive for 10-30 minutes at a time, but experienced significant

pain when driving 30-45 minutes.                  Mitchell      informed Clinical

Services that he had discussed the possibility of another sedentary

job with his employer and that he did not know whether Advanced

Polymer would be willing to decrease the number of miles he had to

travel.     Clinical Services concluded that the medical information

supported a finding that Mitchell’s physical limitations prevented

him from returning to work in his own occupation.




                                           6
     On March 28, 2000, Mitchell received notification of Fortis’

decision to grant his claim for long-term disability.                    Fortis

considered     November   17,    1999    as   his   disability   onset    date,

commencing benefits on February 17, 2000 (following the three

months expiration of his qualifying period, as described in the

Plan).    On May 11, 2000, Mitchell’s case manager from Concentra

Managed   Care   Services,      Inc.    (“Concentra”),3   Cordeila   Bortner,

accompanied him to his appointment with Dr. Goodson.4            Ms. Bortner

asked about the feasibility of Mitchell returning to work with a

decreased route, given his improvement.             Dr. Goodson prescribed a

Functional Capacity Evaluation (“FCE”) to determine what level of

activity Mitchell could tolerate.              The following day, Fortis

deferred all activity pending clarification of issues surrounding

the worker’s compensation claim filed by Mitchell, the recent

medical records noting improvement, and their bearing on Mitchell’s

disability.5     In May 2000, Mitchell participated in the FCE.            Both

Dr. Goodson, claimant’s treating physician, and Dr. Craig S.




     3
      Concentra provides vocational counseling services for Fortis.
     4
      Mitchell gave his authorization to Concentra to review,
share, discuss, and obtain copies of all his medical and vocational
records. Record on Appeal, Doc. Entry #22 at 378.
     5
      On May 29, 2000, Mitchell indicated on a Supplementary Report
for Benefits that he had applied for Social Security disability
benefits, that returning to work was not indicated by his doctor,
and that he would like to receive additional education or training.

                                         7
Heligman,   from    Clinical   Services,      reviewed    the    results   and

generally found that Mitchell would be able to do light work.

      Although, Mitchell’s low back pain continued to improve, he

reported to Dr. Goodson that he had developed pain over his left

hip and buttocks.    On January 19, 2001 Mitchell was diagnosed with

moderate degenerative joint disease of the hip.           Dr. Goodson noted

that he remained active and was not taking Darvocet, but remained

on   Neurontin.     Dr.   Goodson   advised    his    patient    to   continue

chiropractic care, his home exercise program, and the Neurontin.

Mitchell continued to see Dr. Goodson on a regular basis.

      In January 2001, a nurse with Clinical Services reviewed

Mitchell’s file and found that based upon the “available medical

records” and multi-discipline reviews, including the peer review

performed by Dr. Heligman, his condition had improved such that he

had the physical capacity to perform light work demands and could

return to his own occupation.       Record on Appeal, Doc. Entry #22 at

275-76.   In the latter part of February 2001, Mitchell reported to

Dr. Goodson that “his pain had significantly decreased since he

quit working, that he shifts positions frequently, that he never

sits for more than 20 minutes at a time, that he never drives for

more than 60 minutes at one time without having an extended rest,

. . . and that his hips were bothersome.”            J.A. 908.

      On March 9, 2001 Fortis advised Mitchell that he no longer met

the requirements for long-term disability benefits under the Plan


                                     8
and that benefits would cease immediately. Fortis contended in its

letter denying further benefits that Mitchell was able to perform

at least light-duty work with recommendations to allow for position

changes   every   25-30    minutes.         Fortis    stated   that,     “[p]er   a

discussion with Kuni Nakamura, of Advanced Polymer, [Mitchell] was

allowed to take rest breaks at will.”           Record on Appeal, Doc. Entry

#22 at 263.     The letter also stated that Mitchell’s “employment as

a Salesman is defined as a LIGHT physical occupation by both the

Department of Occupational Titles and the Department of Labor

Standards, under the occupation of Network Control Operator.”                 Id.

at 264.       Fortis’ letter concluded by stating that Mitchell’s

records   did    not   indicate   any       medical    conditions   that    would

physically limit him from performing his own occupation.

       Mitchell appealed Fortis’ denial of further benefits, and on

July    11,   2001,    Fortis   arranged      for     an   independent    medical

examination before Robert Saltzman, M.D., an orthopaedic surgeon.

Based on his review of the medical records and his own examination,

Dr. Saltzman concluded that Mitchell was capable of medium duty

work, 8 hours per day in a 40 hour work week.               The only limitation

placed on Mitchell was for him to alternate between sitting and

standing as he felt necessary.

       On August 29, 2001, Fortis notified Mitchell that it had

completed review of his first appeal from the claim denial and

concluded that the decision to deny the claim was appropriate. The


                                        9
letter referred to the updated medical records, the result of the

independent   medical     examination,    and   a    labor    market    survey.

According to Fortis, the medical records revealed no abnormal

neurological findings, no muscle weakness or atrophy, and an

ability to work at a light-duty level, if not higher.                 The labor

market study, according to Fortis, identified sales positions --

classified as light duty, in Mitchell’s geographical area that

could accommodate his need to alternate positions, which Fortis

asserted confirmed Mitchell’s ability to perform the material

duties of his occupation.      Therefore, Fortis affirmed the decision

to deny further benefits. Fortis concluded its letter by notifying

Mitchell   that   he   had   one   further   level    of     appeal    prior   to

exhausting his administrative reviews.

     Mitchell appealed the second denial of his claim through his

attorney, who argued that his client was incapable of performing

the material duties of his prior job.        On December 5, 2001, in its

response to Mitchell’s final appeal, Fortis notified him that his

disability claim must be based on an inability to perform the

material duties of his occupation and not his specific job with his

former employer.       The letter further explained that the FCE and

independent medical examination confirmed Mitchell’s ability to

work at least at the light duty level.               Based on this, Fortis

upheld its decision to deny further benefits and advised Mitchell




                                     10
that   he    had   exhausted      all   administrative    reviews.    Mitchell

responded by filing this lawsuit.



                                         II.

       Generally, we review a district court’s order granting summary

judgment de novo.      Buzzard v. Holland, 367 F.3d 263, 268 (4th Cir.

2004).      However, when a plan grants discretionary authority to the

decision maker, the deferential abuse of discretion standard of

review applies to our review of the eligibility decision.                  Id.

(citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989)).      Under this deferential standard of review, a fiduciary’s

“discretionary decision will not be disturbed if reasonable, even

if the court itself would have reached a different conclusion.”

Smith v. Cont’l Cas. Co., 369 F.3d 412, 417 (4th Cir. 2004)

(quoting Booth v. Wal-Mart, Inc. Assocs. Health & Welfare Plan, 201

F.3d 335, 341 (4th Cir. 2001)).

       In   this   case,    the   Plan   contains   the   following   language

explicitly granting discretionary authority to Fortis:

       we have the sole discretionary authority to determine
       eligibility for participation or benefits and to
       interpret the terms of the Policy. All determinations
       and interpretations made by us are conclusive and binding
       on all parties.

J.A. 121.       The Plan defines “we” and “us” as Fortis Benefits

Insurance Company.         Id.




                                         11
     However, the deference owed to a plan fiduciary’s decision is

tempered when the fiduciary is operating under a conflict of

interest.      Smith, 369 F.3d at 417.         When the decision to deny

benefits impacts the fiduciary’s financial interests, as in the

case of a plan insurer, that conflict is weighed by the court as a

factor in deciding whether there was an abuse of discretion.

Bernstein v. Capitalcare Inc., 70 F.3d 783, 787 (1995).               In other

words, if a plan administrator acts as both the fiduciary making

claim decisions and the insurer paying claims, an inherent conflict

of   interest     exists.    Accordingly,      deference      to     the   plan

administrator will be lessened, but only “to the degree necessary

to neutralize any untoward influence resulting from the conflict.”

Doe v. Group Hospitalization and Med. Serv., 3 F.3d 80, 87 (4th

Cir. 1993).     Under no circumstances may the court deviate entirely

from the abuse of discretion standard.           Ellis v. Metro Life Ins.

Co., 126 F.3d 228, 233 (4th Cir. 1997).                 Instead, the “more

incentive for the administrator or fiduciary to benefit itself by

a certain interpretation of benefit eligibility or other plan

terms,   the    more   objectively    reasonable   the    administrator      or

fiduciary’s decision must be and the more substantial the evidence

must be to support it.”      Id.    In this case it is undisputed that a

conflict    exists,    because     Fortis   functions    as   both   the   Plan

Administrator and the insurer, thus deference to Fortis must be

tempered.


                                      12
                                        III.

      Fortis   contends      that   the    district        court      erred:   (1)    by

reviewing Fortis’ claim decision de novo rather than determining if

the decision to deny the claim was reasonable; (2) by disregarding

the language in the policy and Fourth Circuit precedent when

considering    Mitchell’s      specific        job    duties     rather    than      the

“material duties” of his “regular occupation,” when concluding that

he   was   disabled;   (3)    as    a   matter       of   law,   by    accepting     the

inconsistent opinion of Mitchell’s treating physician over other

substantial evidence, including the FCE, a peer review, and an

independent medical examination, which it argues supported the

denial of benefits; (4) by ignoring the language in the policy and

refusing to give Fortis a credit for an overpayment, as well as

calculating benefits to include amounts that are not allowed under

the policy; and (5) by granting attorney’s fees to Mitchell,

because he should not have prevailed on his claim.

                                         A.

      Fortis contends that the district court misapplied the abuse

of discretion standard discussed supra.                   Fortis alleges that the

district court substituted its own judgment for that of Fortis, the

Plan Administrator.       Further, Fortis asserts that the court gave

little to no deference to Fortis’ conclusions based on the court’s

perception that Fortis’ conduct constituted “bad faith.”                       Fortis


                                         13
disputes the court’s assertion that “failure to provide Plaintiff

with any notice that termination of his disability benefits was

being considered suggests bad faith.”6          J.A. 938.

     The    district   court   stated    that   it    had    “questions    about

Defendant’s    own     financial   interest      as    the     insure[r]    and

administrator [which] require this Court to hold Defendant to a

higher standard in terms of its objective medical evidence and give

less deference to Defendant’s discretionary acts.”               J.A. 938-39.

Specifically, the district court discussed the standard of review

of a Plan Administrator’s decision when it functions as both the

insurer and the Plan Administrator.        The court also noted that:

          In determining the reasonableness of a fiduciary’s
     discretionary decision, a court applying the modified
     abuse of discretion standard may consider, but is not
     limited to, the following factors:

     (1) the language of the plan; (2) the purposes and goals
     of the plan; (3) the adequacy of the materials considered
     to make the decision and the degree to which they support
     it; (4) whether the fiduciary's interpretation was
     consistent with other provisions in the plan and with
     earlier interpretations of the plan; (5) whether the
     decision making process was reasoned and principled; (6)
     whether the decision was consistent with the procedural
     and substantive requirements of ERISA; (7) any external
     standard relevant to the exercise of discretion; and (8)
     the fiduciary's motives and any conflict of interest it
     may have. Booth v. Wal-Mart Stores, Inc., 201 F.3d 335,
     342-343 (4th Cir. 2000) (emphasis added).

J.A. 917.



     6
      According to Fortis, the Plan does not require prior notice
that the Plan is considering terminating benefits and Fortis
exceeds the review requirements of the ERISA statute. Further,
Fortis notes that it informed Mitchell that periodically he would
be required to update information to confirm his continued
eligibility.

                                    14
     Using the above criteria, the district court reviewed Fortis’

decision for reasonability -- determining whether the decisions and

interpretations made by Fortis were supported by the evidence. For

example, the district court found that it was reasonable, pursuant

to the Plan, for Fortis to review Mitchell’s eligibility on a

month-to-month basis.7     Therefore, Fortis was not bound to its

original determination that Mitchell was eligible for long-term

disability.

     A   thorough    reading   of    the   district   court’s   opinion

demonstrates that it reviewed Fortis’ decisions by looking at its

interpretations     and   finding   them   reasonable   when    Fortis’

interpretations were supported by other language in the Plan or was

consistent with other outside information upon which they purported

to rely.8   Therefore, we find that the district court did use the

proper modified abuse of discretion standard of review in this

case.




     7
      The district court noted that the Plan expressly states that
“[d]isability or disabled means that in a particular month, you
satisfy either the Occupation Test or the Earnings Test.” Record
on Appeal, Doc. Entry #22 at 10.
     8
      The district court’s comments that Fortis’ actions “suggested
bad faith” and “indicate bad faith” were made at the conclusion of
the court’s opinion and were not the standard upon which the court
reviewed Fortis’ decisions.

                                    15
                                       B.

     To qualify for long-term disability benefits, Mitchell must

satisfy the Plan’s Occupation Test and demonstrate that:

     during the first 36 months of a period of disability
     (including the qualifying period), an injury, sickness,
     or pregnancy requires that you be under the regular care
     and attendance of a doctor, and prevents you from
     performing at least one of the material duties of your
     regular occupation.

Record on Appeal, Doc. Entry #22 at 10.        Therefore, to cease paying

disability benefits, after initially finding Mitchell eligible,

there    must   be     evidence   in   the   record   to    support   Fortis’

determination that Mitchell could now perform all the “material

duties” of his “regular occupation.”

     We first consider the Plan’s language.                The Plan does not

include a definition of “your regular occupation.”              However, the

district court agreed with Fortis that “your regular occupation”

did not mean Mitchell’s specific job with Advanced Polymer, but

rather referred to a position more specific to Mitchell than

“gainful occupation”, which is the language used in the Plan to

test when a claimant qualifies for being disabled for more than

three years.9        J.A. 919.    We also consider the Second Circuit’s

opinion in Kinstler v. First Reliance Standard Life Ins. Co., 181



     9
        The Plan provides in the Occupation Test definition that:

     “after 36 months of disability, an injury, sickness, or
     pregnancy prevents you from performing at least one of
     the material duties of each gainful occupation for which
     your education, training, and experience qualifies you.”

Record on Appeal, Doc. Entry #22 at 10.

                                       16
F.3d 243 (2nd Cir. 1999), which interpreted “regular occupation” as

“a position of the same general character as the insured’s previous

job,    requiring   similar      skills    and   training,   and   involving

comparable duties.”        Id. at 252 (emphasis added).            The court

explained that the “term is defined more narrowly than any means

for making a living, but it is not limited to the insured’s

particular job.”    Id.    In other words, a reasonable description of

a claimant’s regular occupation must also take into account the

specific nature of the claimant’s prior employment.

       On appeal, Fortis argues that extensive driving is not a

material duty of Mitchell’s regular occupation and asserts that the

district court substituted its own judgment for the labor market

survey provided by Fortis.10 The Plan defines “material duties” as:

       [T]he sets of tasks or skills required generally by
       employers from those engaged in a particular occupation.
       One material duty of your regular occupation is the
       ability to work for an employer on a full-time basis as
       defined in the policy.

Record on Appeal, Doc. Entry #22 at 11.

       Fortis   claims    that   because    it   provided    a   survey   that

identified “numerous” sales positions in Mitchell’s geographical

area that were suitable to Mitchell’s background, which did not

require “extensive travel,” there was thus, substantial evidence




       10
      The survey was conducted in August 2001, five months after
Fortis determined and informed Mitchell that he no longer qualified
for long-term disability benefits.

                                      17
that traveling approximately 1500 miles per week was not a material

duty of Mitchell’s occupation.       Appellant’s Br. at 33.

     Fortis’ attempt to use a labor market survey to demonstrate

that driving or traveling is not a material duty of Mitchell’s

regular occupation is insufficient.            By using limiting criteria

applicable to Mitchell (light-duty, no lifting over twenty pounds,

and the ability to change positions every thirty minutes), Fortis

guaranteed that it would find at least a few jobs that Mitchell

could possibly engage in with his physical limitations.11 Thus, the

labor market survey does not support Fortis’ determination that

driving or extensive travel was not a general skill required by
                                          12
employers in Mitchell’s occupation.

     Consequently, we consider objective information to determine

if   Fortis’   determination   was    reasonable.     The   United   States

Department of Labor in its Dictionary of Occupational Titles

(“DOT”) defines a Chemical Sales Representative as “Light Work -

Exerting up to 20 pounds of force occasionally, and/or up to 10

pounds of force frequently, and/or a negligible amount of force


     11
      We note that Fortis listed fifteen jobs in the survey and
only two jobs involved anything remotely related to chemical sales.
J.A. 263-66.
     12
      Fortis also relies on a notation on a claim file
recommendation form that mentions the possibility that Advanced
Polymer may be willing to decrease Mitchell’s travel area and
indicated that he might be able to work out of his home. Neither
of these accommodations were officially offered to Mitchell, nor
were they determined to be reasonable or acceptable by any medical
professional.

                                     18
constantly (Constantly: activity or condition exists 2/3 or more of

the time) to move objects.    Physical demand requirements are in

excess of those for Sedentary Work.”    Dictionary of Occupational

Titles 262.357-010.   The Department of Labor, in its Occupational

Outlook Handbook, states that “Sales representatives spend much of

their time traveling to and visiting with prospective buyers and

current clients.”   Bureau of Labor Statistics, U.S. Department of

Labor Occupational Handbook 412 (2004-05). The Department of Labor

continues, stating --

     After the sale, representatives may make followup visits
     to ensure that the equipment is functioning properly and
     may even help train customers employees to operate and
     maintain new equipment.

     . . . .

     Working Conditions
     Some sales representatives have large territories and
     travel considerably. A sales region may cover several
     States, so they may be away from home for several days or
     weeks at a time. Others work near their “home base” and
     travel mostly by automobile. Due to the nature of the
     work and the amount of travel, sales representatives may
     work more than 40 hours per week.

     Although the hours are long and often irregular, most
     sales representatives have the freedom to determine their
     own schedule. Sales representatives often are on their
     feet for long periods and may carry heavy sample
     products, which necessitates some physical stamina.

Id. at 413.

     The Department of Labor’s in-depth explanation of the travel

required by a sales representative supports the district court’s

finding that driving was a material duty of Mitchell’s regular


                                19
occupation.       The   DOT’s   description   of   a   Chemical   Sales

Representative requiring the exertion of at least “a negligible

amount of force constantly” -- like the force necessary to drive a

car -- further supports the district court’s finding that driving

was a material duty.    Thus, we affirm the district court’s finding

and conclude that it was unreasonable and an abuse of discretion

for Fortis to find that extensive travel was not a material duty of

Mitchell’s regular occupation.

                                   C.

     We now review Fortis’ determination that Mitchell was able to

perform the material duties of his regular occupation, including

extensive travel.       Our review, like the district court’s, is

limited to evidence that was in the administrative file when the

Plan Administrator rendered its decision to terminate Mitchell’s

benefits.     Bernstein v. Capital Care, Inc., 70 F.3d 783, 788 (4th

Cir. 1995).

     The information Fortis had prior to the March 9, 2001 decision

to cease disability benefits to Mitchell was: (1) the FCE, which

concluded that Mitchell was unable to sit still for any length of

time and suffered from a burning sensation in his lower back when

sitting and typing; (2) Dr. Heligman’s review of the FCE and his

opinion that the “claimant has the capacity for light work and

would be able to perform his occupation of sales representative,”

Record on Appeal, Doc. Entry #22 at 333; (3) Dr. Heligman’s


                                   20
recommendation that Mitchell limit his lifting to between 10 and 25

pounds, and that he change his position frequently “every 30

minutes or so,” Id.; and (4) Dr. Goodson’s review of the FCE and

his finding that Mitchell was capable of light duty work with

restricting his lifting to 20 pounds, changing positions every 20-

30 minutes, and sitting no more than six hours in a 24 hour period,

and if driving is involved –- “limit driving to a max. of 2 hours

per 24 hours with a max. of 10 hours per. week.                  While driving he

should stop every 30 min. and walk around the car.”                  Id. at 248.

      In addition, the record indicates that in January 2001, Dr.

Goodson scheduled Mitchell for x-rays to investigate his complaints

of hip pain.        Mitchell was diagnosed with moderate left hip

degenerative joint disease.         In February 2001, after the June 2000

FCE, but before the March 9, 2001 denial of benefits, Dr. Goodson

opined   that    Mitchell   would       not   be   able   to    “maintain   gainful

employment without significant increase in pain symptoms making him

totally non-functional.”          Id. at 255.

      The medical evidence does not reasonably support Fortis’

finding that Mitchell was capable of doing all material duties of

his occupation.         It was unreasonable for Fortis to find that

Mitchell could drive extensively every day if he could only drive

a   maximum   of   30   minutes    at    a    time   with   a   significant   rest

afterward.      It would be almost impossible, even given an extended

work day, for Mitchell to timely attend his appointments. Further,


                                         21
the facts support the district court’s finding that “the record

demonstrates that there was never an official RTW [“return to

work”] proposal made or rejected.”13     Id. at 923.    Finally, the

medical evidence is not in conflict, both Dr. Heligman and Dr.

Goodson limited Mitchell’s ability to sit or drive to 30 minutes or

less at a time.   Therefore, we find that Mitchell was unable to

perform a material duty of his occupation, and that even giving

Fortis the appropriate deference it was unreasonable for Fortis to

find otherwise on March 9, 2001.

     After the March 9, 2001 denial, Mitchell appealed and Fortis

gathered more medical evidence, presumably to re-evaluate the

decision denying Mitchell long-term disability benefits. In August

2001, Dr. Saltzman conducted a physical examination, reviewed “all

available medical records,” and found in his independent medical

evaluation that the “objective findings are not consistent with the

patient’s subjective symptoms.   The objective findings are minimal

(i.e. his scoliosis compared to a subjective inability and there is

no muscle weakness nor atrophy).”     J.A. 141.   Dr. Saltzman opined

that Mitchell was capable of performing “medium category work level

for an 8-hour day, 40-hour week, with the ability to sit and stand,



     13
      While the record reflects that a conversation occurred
between   Fortis   and   Advanced  Polymer  regarding   possible
accommodations, Fortis clearly stated that it was “not affirmed
that the PH[“policyholder”] accommodations are reasonable.   His
back is improving - he needs to think about accommodations and
consult AP [“Advanced Polymer”].” J.A. 554 (emphasis added).

                                 22
alternating as he feels necessary.”          Id.    Dr. Saltzman was aware

that Mitchell’s prior position as a sales representative involved

driving   and   frequent   sitting.        Dr.    Saltzman    also    estimated

Mitchell’s level of ability as “there were no tasks that I think

the claimant would be unable to perform, other than lifting more

than 40-lb on more-than-occasional basis.”           Id.

       Dr. Saltzman indicates that he reviewed Mitchell’s medical

records from 1998 until February 2001, however, it is also plain

that Dr. Saltzman had incomplete medical information, for example

“no    x-rays   were   made    available    for     review.”         J.A.   140.

Nevertheless, Dr. Saltzman concludes that his objective findings

were   inconsistent    with    Mitchell’s   subjective       complaints,     Dr.

Saltzman did “recommend[], however, that updated MRI’s of the

thoracic and lumbar spine be obtained and x-rays, plain films of

the thoracic and lumbar spine be obtained.           It may be advantageous

to get EMGs of the (L) lower extremity to detect and denervation to

the muscle since clinically none are noted.”           J.A. 248.

       In contrast, both Dr. Heligman and Dr. Goodson opined that

Mitchell had some limitations in his abilities and necessitated the

ability to change positions every 20-30 minutes.             In addition, Dr.

Ellison recognized that Mitchell’s extensive driving may have

caused    (or   exacerbated)    the   degenerative     disc    in    his    back.

Further, the FCE supported the findings and recommendations made by

Dr. Ellison, Dr. Goodson, and Dr. Heligman.           The only evidence in


                                      23
the record that clearly supports Fortis’ determination is Dr.

Saltzman’s opinion.      With an incomplete record and without any

further tests, Dr. Saltzman’s opinion -- that Mitchell was able to

perform all tasks except lifting in excess of 40 pounds –- does not

outweigh the medical opinions of Dr. Goodson, Dr. Ellison, and Dr.

Heligman who limited Mitchell’s abilities to sit and drive to 30

minutes.    Thus, we find that Dr. Saltzman’s opinion cannot alone

provide    enough   reasonable   support   for    Fortis’   decision,   even

according Fortis tempered deference.             Therefore, we affirm the

district court’s findings on this issue.

                                    D.

     Next, Fortis contends that the district court erred when the

court failed to offset for the Social Security benefits that

Mitchell received, when it added to the benefit calculation money

received by Mitchell as a “bonus”, and when the district court

granted Mitchell benefits beyond what was remaining in the first

thirty-six months.

     First, despite Fortis’ assertion to the contrary, the court

did offset the benefits payment by the Social Security benefit

Mitchell received. The district court awarded Mitchell $108,241.00

for the total amount of past-due disability benefits owed under the

terms of the Plan.14    The district court determined that $3,820.00


     14
      This amount included monthly disability benefits, plus
$4,022.00 in costs associated with obtaining Social Security
disability benefits under the Plan, less the difference in the

                                    24
was the initial monthly benefit for the period of May 2001 until

May 2002.    In May 2002 Mitchell began receiving Social Security

disability benefits, thus the district court reduced the monthly

benefit owed by Fortis to Mitchell to $2,590 per month for the

period of May 2002 until February 16, 2004.15

     Second, Fortis does not cite to any language in the district

court’s    opinion      to   support   its   assertion   that   a   “bonus”   was

included    in    the   court’s   calculations     of    Mitchell’s   benefits.

Further, the record shows that Fortis determined in an internal

memo, dated August 22, 2001, that $4,830 was commissions and should

be added to Mitchell’s income.           Fortis originally calculated the

“adjusted pre-db [“pre-disability”] earnings $69,000/12 = $5,750 +

214.80    (2,577.63/12)       =   $5,964.80    -   release   underpayment     to

claimant.”       Record on Appeal, Doc. Entry #22 at 145.           The district

court calculated Mitchell’s monthly disability benefits to be

considerably lower, as described above.            Thus, the record does not

support Fortis’ contention that the district court included a

“bonus” in its calculation of benefits.



disability benefit actually paid from February 17, 2000 to February
16, 2001 and the disability benefit calculated following discovery
of the $4,830 in commissions, at 8% interest. J.A. 1039.
     15
      According to the record, Mitchell began receiving long-term
disability benefits on February 17, 2000, thus the end of the
initial thirty-six months would be February 16, 2003, not 2004 as
the district court states. If this error impacts the award, the
district court must recalculate the award using the appropriate end
date.

                                        25
      Finally, Fortis is correct in its contention that the district

court granted Mitchell “[r]einstatement of disability benefits

under the Plan, in the amount of $2,590 per month, from February

17, 2004, through the present,” J.A. 1040, in the amount of

$129,795.93” which is in direct conflict with the Plan.                 According

to Fortis’ Plan language, “after 36 months of disability, an

injury, sickness, or pregnancy prevents you from performing at

least one of the material duties of each gainful occupation for

which your education, training, and experience qualifies you.”

Record on Appeal, Doc. Entry #22 at 10.         The district court did not

make a finding that Mitchell satisfied the Plan’s requirement that

he   be    unable   to   perform    a   material   duty     in    his   “gainful

occupation”, making him eligible for disability benefits after the

initial     thirty-six    months.        In   fact,   the    district      court

specifically    recognized    the    difference    between       qualifying   for

disability for the first thirty-six months and qualifying later

after the initial thirty-six months.            Therefore, we reverse the

district court’s grant of $129,795.93 for disability benefits after

February 17, 2003.16




      16
      We make no finding regarding whether Mitchell meets the
requirements for long-term disability under the Plan after the
initial 36 months period.

                                        26
                                         E.

      Fortis argues that because Mitchell should not have prevailed

in his claim, the district court’s grant of attorney’s fees was in

error.       We   review    the    district     court’s   award   for    abuse   of

discretion.       Metropolitan Life Ins. Co. v. Pettit, 164 F.3d 857,

865 (4th Cir. 1998).              In awarding attorney’s fees, a district

court should use the five factors articulated in Quesinberry v.

Life Ins. Co. of North Am., 987 F.2d 1017, 1029 (4th Cir. 1993) (en

banc), as a guide, keeping in mind the remedial purposes of ERISA.

The   five    factors      are:   (1)   degree    of   the   opposing    parties’

culpability or bad faith, (2) the ability of opposing parties to

pay fees, (3) whether the fee award would deter others similarly

situated, (4) whether the parties requesting fees sought to benefit

other claimants or to resolve a significant ERISA-related legal

question, and (5) the relative merits of the parties’ positions.

Id.

      Although the district court did not go into great detail about

the basis for granting Mitchell attorney’s fees we can surmise that

the court found that Fortis’ actions suggested bad faith and that

the evidence Fortis purported to rely on in making its claims

decision was not substantial and supportive of its decision to

terminate Mitchell’s disability insurance benefits as of March

2001.    Accordingly, granting of attorney’s fees would likely deter

Fortis    from    making     future     hasty    and   unsupported      decisions.


                                         27
Therefore, we find that attorney’s fees were properly granted to

Mitchell.

     Fortis also disputes the district court’s calculation of

$120,000 for attorney’s fees.   Mitchell’s counsel asserts that he

spent approximately 542.10 hours on this case at a rate of $275 an

hour and requested $149,077.50 in attorney’s fees.     A court may

award, in its discretion, reasonable attorneys’ fees and costs to

a prevailing plaintiff in a ERISA action.       See 29 U. S. C. §

1132(g)(1) (2005).   Thus, we review the amount of the award for

abuse of discretion.    See Johnson v. Hugo’s Skateway, 974 F.2d

1408, 1418 (4th Cir. 1992).

     In calculating an award of attorneys’ fees, a court should

usually “determine[] a ‘lodestar’ figure by multiplying the number

of reasonable hours expended times a reasonable rate.”     Daly v.

Hill, 790 F.2d 1071, 1077 (4th Cir. 1986).      The district court

should generally be guided by the particular factors articulated in

Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978),

when deciding what constitutes a “reasonable”   number of hours and

rate.    See also Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir.

1998).   Because we have only affirmed the district court’s finding

that Fortis wrongly denied Mitchell benefits during the initial

thirty-six months period and the district court has given us little

information on how it determined the amount of fees, we find that




                                 28
the district court must re-calculate the amount of the award of

attorney’s fees using the above cases as guidance.



                               IV.

     Based on the foregoing, we affirm the district court’s finding

that Fortis abused its discretion when it terminated Mitchell’s

long-term disability benefits during the initial thirty-six months

of disability and its finding that Mitchell was eligible to receive

attorney’s fees in this case. We vacate the district court’s

decision that Mitchell was eligible to receive long-term disability

benefits after the initial thirty-six months period and we remand

for recalculation of the amount of attorney’s fees in accordance

with this opinion.



                                                 AFFIRMED IN PART,
                                                  VACATED IN PART,
                                                      AND REMANDED




                                29
