                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      February 7, 2007
                             FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                        Clerk of Court

    TR ACY LEA CH ,

              Plaintiff-Appellant,

     v.                                                  No. 06-3148
                                                  (D.C. No. 04-CV-1358-JTM )
    CO NTINEN TAL CASUALTY                                 (D . Kan.)
    C OM PA N Y ,

              Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




          In this pro se appeal, Tracy Leach challenges the entry of summary

judgment in his civil action to recover disability benefits under the Employee

Retirement Income Security Act (ERISA). W e have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    B ACKGROUND

       Russell Stover Candies, Inc. (RSC) administered a group disability plan for

its employees through an insurance contract w ith Continental Casualty Company.

Continental had discretionary authority to interpret the plan’s terms and to

determine eligibility for plan benefits. The plan defined “disability” as an injury

or illness that renders an employee “continuously unable to perform the M aterial

and Substantial Duties of [his or her] Regular Occupation,” R., Doc. 18, Ex. 1 at

17, and it required “objective medical findings” as proof of disability, id. at 26.

      M r. Leach worked for RSC as a plant manager. His duties required, among

other things, the abilities to walk, stand, sit, lift ten pounds, and “react under

pressure and meet production needs on [a] daily basis” in a “[h]igh stress

environment.” Id. at 609. M r. Leach’s last work day was M arch 7, 2003, but he

remained on the payroll for several months.

      In June 2003, M r. Leach applied for disability benefits. His family-practice

physician, Dr. M ark Sheern, supplied a medical statement, listing M r. Leach’s

conditions as coronary artery disease, recurrent headaches, and “probable

autoimmune process.” Id. at 635. Additionally, Dr. Sheern opined that

M r. Leach was “unable to lift repeatedly, stand for [an] extended period of time,

[and] attend for a period of time to task without rest period.” Id. at 636.

      Continental referred M r. Leach’s file to Dr. Eugene Truchelut, an internist,

who did “not see any findings on physical or laboratory examination which would

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lead to recommendations for particular occupational restrictions with the

exception that a subject who is taking Coumadin [a blood thinner] will need to be

careful in certain hazardous w orkplace environments w here lacerations, etc. could

occur.” Id. at 453. In D ecember 2003, Continental denied M r. Leach’s

application for benefits, explaining that there was “no documented medical

information to support the physical limitations indicated by Dr. Sheern.” Id. at

439. In particular, Continental noted that Dr. Sheern had told Dr. Truchelut that

the limitations for M r. Leach were based mostly on his reported symptoms.

M r. Leach retained counsel and appealed the denial of benefits to Continental.

      Dr. Truchelut again reviewed the file and reported:

             To summarize, this is a 51-year-old man whose last date of
      work was over a year ago, and who has had established diagnoses of
      coronary artery disease treated by surgical and angioplastic means,
      localized bladder carcinoma, pulmonary embolism, cephalgia, and a
      hypercoagulable state . . . .
             . . . The additional information provided [from the appeal]
      does not contain reports of physical, laboratory, or radiological
      findings which would support on a continuous basis the broad
      restrictions provided [by Dr. Sheern] . . . .

Id. at 58-59. Continental also referred M r. Leach’s medical file to a second

medical consultant, seeking correlation between M r. Leach’s claimed limitations

and his medical conditions. The consultant, Dr. M ark Friedman, another internist,

reviewed the file and concluded that “[t]he records do not support advanced heart

disease that would limit walking, standing, and light lifting activities,” id. at 52,

“[n]o restrictions from a Urology point of view other than those noted related to

                                          -3-
Coumadin would be appropriate,” id. at 53, “[t]he [antiphospholipid antibody

syndrome] findings would not explain his symptoms,” id., and “his restrictions

and limitations would permit a sedentary to light occupation as of M arch 2003,”

id. Consequently, in A ugust 2004, Continental affirmed its denial of benefits.

      In November 2004, M r. Leach, through counsel, sued Continental. Both

parties m oved for summary judgment based on the administrative record. On

February 3, 2006, the district court granted Continental’s motion and denied

M r. Leach’s motion, ruling that

             [M r. Leach] continued to work as a plant manager after
      numerous medical treatments for a variety of ailments, including the
      coronary problems . . . . On M arch 7, 2003, he terminated his
      employment and has not returned to work. [Continental’s] desire to
      find objective medical evidence for why Leach became disabled at
      that time was not unreasonable, since the plan only provided
      coverage of conditions which were disabling while the worker was
      covered under the Plan. Here, the evidence in the record does not
      show that, on or before M arch 7, 2003, Leach was disabled from
      performing his job duties. The court finds that substantial evidence
      supports the decision of [Continental].

R., Doc. 26 at 16 (citation omitted).

      On appeal, M r. Leach argues that (1) his medical history proves that he is

disabled; (2) RTC’s production areas were “not condusive [sic] to someone on

coumadin therapy,” Aplt. Br. at 2; (3) Continental placed too much emphasis on

Dr. Sheern; and (4) his illnesses progressively worsened from 1996 to 2004.




                                        -4-
                                    D ISCUSSION

                          I. Summary Judgment Standards

      W e review the district court’s summary judgment de novo. Stover v.

M artinez, 382 F.3d 1064, 1070 (10th Cir. 2004). 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). In applying this standard,

we view the evidence and draw all reasonable inferences in the light most

favorable to the party opposing summary judgment. See Stover, 382 F.3d at 1070.

                                     II. ERISA

      “[W ]e review de novo the district court’s application of the appropriate

standards to a plan administrator’s denial or grant of benefits under a plan.”

DeGrado v. Jefferson Pilot Fin. Ins. Co., 451 F.3d 1161, 1167 (10th Cir. 2006).

W here, as here, the benefit plan gives the administrator discretionary authority to

determine eligibility for benefits and to construe the plan’s terms, the

administrator’s actions are analyzed for arbitrariness and capriciousness. Id. But

because of the inherent conflict of interest arising from Continental acting as both

the insurer and the plan administrator, “we undertake a sliding scale analysis,

where the degree of deference accorded the Plan Administrator is inversely

related to the seriousness of the conflict.” Id. at 1167-68 (quotations omitted).

                                         -5-
Specifically, we require that “the plan administrator . . . demonstrate that its

interpretation of the terms of the plan is reasonable and that its application of

those terms to the claimant is supported by substantial evidence.” Id. at 1168

(quotation omitted).

      “Substantial evidence is such evidence that a reasonable mind might accept

as adequate to support the conclusion reached by the decision maker.” Rekstad v.

U.S. Bancorp, 451 F.3d 1114, 1119-20 (10th Cir. 2006). In other words, it is

more than a scintilla, but less than a preponderance. Id. at 1120.

      After reviewing the record and the parties’ briefs, we conclude that

Continental reasonably interpreted the plan to require objective medical evidence

of M r. Leach’s claimed disability, and that substantial evidence supports

Continental’s determination that he was not disabled under the plan. 1




1
       M r. Leach’s argument that RTC’s production “areas are not condusive [sic]
to someone on coumadin therapy,” Aplt. Br. at 2, is not supported by any
reference to the record. And our independent review of the record has not
uncovered any evidence that M r. Leach’s coumadin treatment prevented him from
performing his duties. Dr. Truchelut stated that a person taking coumadin would
need to be careful in hazardous work environments where lacerations could occur,
R., Doc. 18, Ex.1 at 453, and Dr. Friedman suggested that such a person could not
work in occupations requiring climbing or operating dangerous machinery, id. at
49. But M r. Leach’s duties apparently did not require climbing or operating
dangerous machinery, and no hazards were listed on RTC’s job-analysis form.
See id. at 608-09.

                                          -6-
      The summary judgment is AFFIRM ED for substantially the same reasons

given by the district court in its February 3, 2006 M emorandum and Order.

                                                  Entered for the Court


                                                  M onroe G. M cKay
                                                  Circuit Judge




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