                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT



                               No. 03-2425



SANDRA ABROMITIS,

                                                 Plaintiff - Appellant,


           versus

CONTINENTAL CASUALTY COMPANY/CNA INSURANCE
COMPANIES,

                                                  Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Max O. Cogburn, Jr.,
Magistrate Judge. (CA-02-165-C-1)



Argued:   September 30, 2004                 Decided:   November 5, 2004


Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.


Affirmed by unpublished opinion. Judge Luttig wrote the opinion,
in which Judge Widener and Judge Niemeyer joined.


ARGUED: Candy Maria Kern-Fuller, FOSTER LAW FIRM, L.L.P.,
Greenville, South Carolina, for Appellant.  Ingrid Blackwelder
Erwin, JACKSON LEWIS, L.L.P., Greenville, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
LUTTIG, Circuit Judge:

       Plaintiff-appellant Sandra Abromitis appeals from an order of

the United States District Court for the Western District of North

Carolina       granting     summary    judgment        to   defendant-appellee

Continental Casualty Co./CNA Insurance Companies (“CNA”).                  The

district court held that CNA did not abuse its discretion in

terminating Abromitis’ long-term disability (“LTD”) benefits under

an ERISA-governed employee benefits plan.               Because we agree that

CNA did not abuse its discretion, we affirm the judgment of the

district court.



                                       I.

       Appellant Abromitis was employed by Aris Corporation as a

“principal consultant and systems analyst” prior to December 1999.

J.A.    261.      Her     job   required    frequent    travel   and   constant

availability for travel.         During her employment at Aris, Abromitis

participated in an employee benefits plan (“the Plan”) administered

by CNA on behalf of her employer.            The Plan is an employee welfare

benefit plan within the meaning of the Employee Retirement Income

Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.              According to the

terms of the Plan, an individual with a “total disability” is

entitled to LTD benefits.         J.A. 866.    The Plan provides a two-part

definition of “total disability.”             During the “Your Occupation”

period of the first 24 months, “total disability” means that,


                                       -2-
       [y]ou, because of Injury or Sickness, are:
       (1) continuously unable to perform the substantial and
       material duties of Your regular occupation;
       (2) under the regular care of a licensed physician other
       than Yourself; and
       (3) not gainfully employed in any occupation for which
       You are or become qualified by education, training or
       experience.

J.A. 866.     After the 24-month “Your Occupation” period, “total

disability” means that,

       [B]ecause of Injury or Sickness, You are:
       (1) continuously unable to engage in any occupation for
       which You are or become qualified by education, training
       or experience; and
       (2) under the regular care of a licensed physician other
       than Yourself.

J.A. 866.    The Plan also provides that its administrator “ha[s]

discretionary authority to interpret the terms of the Plan and to

determine eligibility for and entitlement to benefits in accordance

with the Plan.”    J.A. 871.

       Abromitis applied for disability benefits under the Plan in

February 2000, after her fourth hip replacement surgery rendered

walking difficult.   In support of her application, she submitted a

report from her orthopedist, Dr. Karegeannes, which asserted that

she would not be able to return to work until August 2000.        J.A.

838.    CNA awarded her disability benefits through August.         In

August, as part of a successful application for an extension of her

benefits, Abromitis reported to CNA that she still walked painfully

with a cane, and said of her job that “it’s the travel I have a

hard time with.”   J.A. 813.   And in December 2000, Dr. Karegeannes


                                 -3-
reported     that    Abromitis’   recovery    was   slow    and   recommended

extending her disability benefits for another six months.                 J.A.

583.

       On March 15, 2001, Dr. Karegeannes reported to CNA that

Abromitis was capable of “sedentary to light work with no travel

and sit/stand option.”       J.A. 572 (emphasis added).      On the basis of

this   report,      CNA   terminated   Abromitis’   benefits.       Abromitis

appealed the decision, arguing that the Plan’s 24-month “Your

Occupation” period was still in effect and that she was incapable

of the frequent travel that was an essential part of her former

job.    J.A. 535-36.      CNA reinstated her benefits on July 18, 2001.

       On October 24, 2001, still during the “Your Occupation”

period, CNA notified Abromitis that it would terminate her benefits

in December.        She appealed again, submitting a report from Dr.

Karegeannes dated November 15, which stated:

       I suspect that this late date [sic], the patient will be
       unable to return to the work she was previously involved
       with. She is unable to sit for any significant period of
       time. . . . Generalized problems seem to have accumulated
       to the point that it is difficult for her to do anything
       similar to what she has done in the past.

J.A. 359 (emphases added).             Dr. Karegeannes also submitted a

functional capacity exam (“FCE”) dated November 27, 2001.               His FCE

report     listed    Abromitis’   diagnoses    as   hip    dysplasia,    spine

arthritis, and bursitis, and it listed physical limitations that

were inconsistent with travel but consistent with sedentary work

with a sit/stand option for frequent changes of position.                 J.A.

                                       -4-
676-77.     On January 17, 2002, CNA again reinstated Abromitis’

benefits.

       In February 2002, CNA hired Dr. Flora Pinder to perform a

labor market survey in Abromitis’ geographical area to determine

the availability of sedentary jobs with a sit/stand option for

changing position. J.A. 323. Dr. Pinder identified four potential

employers in the area with qualifying positions. J.A. 324-36. All

of these jobs required keyboarding work.             J.A. 321-22.

       On February 11, CNA notified Abromitis that it would terminate

her benefits on April 30 at the end of the “Your Occupation”

period, when the travel requirement of her former job became

inapplicable     under    the   Plan’s    two-stage       definition      of   total

disability. J.A. 383-84. CNA noted that Dr. Pinder’s labor market

survey had identified jobs compatible with the limitations reported

by   Dr.   Karegeannes    in    the   November     2001    FCE,    and    that   Dr.

Karegeannes had opined in March 2001 that Abromitis was capable of

sedentary work with no travel.           J.A. 383.

       Abromitis appealed CNA’s decision to terminate her benefits,

submitting several new pieces of evidence.            First, she submitted a

report from Dr. Cammarata, a hand specialist, who concluded that

Abromitis suffered from osteoarthritis of the hands, based on x-

rays and a physical examination conducted on February 11, 2001.

J.A.   351-52.     This    report      did   not   indicate       any    functional

limitations.     J.A. 351-52.         Second, she submitted a report from


                                       -5-
Maggie Kelly, a “rehabilitation counselor,” who reviewed Abromitis’

medical          records    and     reported        that    it   was    “uncertain     whether

[Abromitis] could work an 8-hour day” due to her multiple medical

problems and arthritis-related difficulties with keyboarding. J.A.

338.        Third, Abromitis submitted a report from Dr. Burke, who

examined her for the first time on February 15 and diagnosed her

with chronic mechanical pain, osteoarthritis, fibromyalgia (i.e.

back       and    neck     pain),      and    pelvic       obliquity.        J.A.    347,   349.

Finally, in a personal affidavit, Abromitis alleged that the

impediments to her ability to work included hand arthritis, back

pain,       physical       therapy       “nearly      every      weekday,”     and    migraine

headaches.1         J.A. 334.          In June, CNA denied her appeal.

        Abromitis subsequently filed suit in the district court,

seeking      restoration          of    her    benefits       under    the    Plan.     During

discovery, Abromitis requested information about the extent of

business contacts between CNA and Dr. Pinder, who had performed the

labor market survey.                   J.A. 22.        The district court denied the

discovery          request.         J.A.      59.      On    cross-motions      for    summary

judgment, the district court granted summary judgment for CNA.

J.A. 275.          On appeal, Abromitis challenges both the order denying




       1
       Apparently, Abromitis had suffered migraine headaches for
many years. But on April 25, 2001, a nurse practitioner reported
that Abromitis’ headaches had been effectively controlled by pain
medication. J.A. 422.

                                                -6-
her motion to compel discovery and the order granting summary

judgment to CNA.



                                         II.

     During discovery, Abromitis requested information about the

number of contracts between CNA and Dr. Pinder over the previous

three years and the total amount of money that CNA paid Dr. Pinder

under   those    contracts.       J.A.    22.    In   her      motion    to   compel

discovery,      Abromitis   argued   that,      because     of    a   conflict     of

interest, Pinder consistently “tailor[ed] her reports [about job

availability] to support claim denials.”              J.A. 23.        The district

court denied Abromitis’ motion to compel discovery, J.A. 59, and

Abromitis challenges this ruling on appeal.

     We review the denial of a motion to compel discovery for abuse

of discretion, Erdmann v. Preferred Research, Inc., 852 F.2d 788,

792 (4th Cir. 1988), and we conclude that the district court did

not abuse its discretion here.            On appeal, Abromitis argues that

Pinder’s labor market survey, upon which CNA in part based its

decision to terminate her benefits, was tainted by a conflict of

interest, and that the degree of this conflict of interest was

relevant   to    the   district    court’s      review    of     CNA’s   decision.

Appellant’s Br. at 23-29.          But, as the district court correctly

noted, it is the administrator’s conflict of interest that is

relevant   to    the   conflict-of-interest       review       conducted      by   the


                                         -7-
district court -- not the plainly evident “conflict of interest” of

the administrator’s paid employees and consultants.          See J.A. 57

(“[I]t is not the conflict of interest of a consultant employed by

a fiduciary that the Fourth Circuit has held is relevant.”); see

also Booth v. Wal-Mart Stores, Inc. Assocs. Health and Welfare

Plan, 201 F.3d 335, 343 n.2 (4th Cir. 2000) (“A fiduciary’s

conflict of interest . . . may operate to reduce the deference

given to a discretionary decision of that fiduciary.” (emphasis

added)).   It   was   therefore   irrelevant   how   much   business   CNA

provided to Dr. Pinder, and the district court properly denied

discovery on that issue.2



                                  III.

     Abromitis also challenges the district court’s order awarding

summary judgment to CNA.    We review the district court’s grant of

summary judgment de novo, applying the same standards as the

district court. Gallagher v. Reliance Std. Life Ins. Co., 305 F.3d



     2
       One relevant question might have been whether the survey
upon which CNA relied provided false or inaccurate information,
rendering CNA’s decisionmaking process unreliable. But Pinder’s
survey simply recited several listings of sedentary jobs with a
sit/stand option in Abromitis’ area, based on contacting employers
by telephone.    J.A. 324-26.    Abromitis does not dispute the
accuracy of any fact in the survey. Rather, she argues only that
she could not perform the jobs that Pinder found because of her
medical problems and her lack of computer programming skills.
Appellant’s Br. at 12. This is a challenge to CNA’s conclusion
about her physical capabilities, not to Pinder’s research. The
issue of Pinder’s purported bias is thus all the more irrelevant.

                                  -8-
264, 268 (4th Cir. 2002).         Where, as here, an ERISA plan gives the

plan administrator discretionary authority to interpret the terms

of   the    plan,   the    district    court    reviews   the   administrator’s

decisions for abuse of discretion.             Booth, 201 F.3d at 341.      Under

the abuse of discretion standard, the court may not overturn the

administrator’s denial of benefits if the denial “is the result of

a deliberate, principled reasoning process and if it is supported

by substantial evidence.”          Elliot v. Sara Lee Corp., 109 F.3d 601,

605 (4th Cir. 1999).

      Because CNA both administers and funds the plan, however, we

adjust the standard of review by decreasing our deference to CNA in

proportion to the degree of CNA’s conflict of interest.                  In such

circumstances, we must determine whether the denial of benefits

would      constitute     an   abuse   of   discretion    by    a   disinterested

fiduciary.       See, e.g., Bailey v. Blue Cross & Blue Shield of

Virginia, 67 F.3d 53, 56 (4th Cir. 1995) (“[W]e will review the

merits of the [funding fiduciary’s] interpretation to determine

whether it is consistent with an exercise of discretion by a

fiduciary acting free of the interests that conflict with those of

the beneficiaries.”). Even on this adjusted scale of deference, we

conclude that CNA did not abuse its discretion because its decision

to terminate Abromitis’ benefits was the result of a deliberate,




                                        -9-
principled    reasoning   process    and   supported   by   substantial

evidence.3

     We conclude that CNA’s decision was supported by substantial

evidence.    In defending its decision, CNA relies primarily on Dr.

Karegeannes’ evaluations of Abromitis’ sedentary work capacity of

March 2001 and November 2001.       On March 15, 2001, he classified

Abromitis as capable of “sedentary to light work with no travel and

sit/stand option.”    J.A. 572.     His November 15 remarks indicated

that Abromitis could not return to “the work she was previously

involved with,” J.A. 359, but his November 27 evaluation listed

restrictions consistent with sedentary occupation with a 30-minute

sit/stand option.    J.A. 676.      And none of his other reports on

Abromitis’ condition during the “Your Occupation” period identified

any objective obstacles to Abromitis’ performance of sedentary

work.    See J.A. 361, 399, 583, 701, 758.

     To contradict Dr. Karegeannes’ conclusion that she was capable

of sedentary work, Abromitis relies on her own affidavit and the

reports of Dr. Burke, Dr. Cammarata, and Maggie Kelly.      But none of

these reports contradicts Dr. Karegeannes’ evaluation with any



     3
       Aside from the alleged conflict of interest of Dr. Pinder,
discussed above, the only defect in CNA’s reasoning process that
Abromitis identifies is CNA’s failure to perform “any meaningful
medical review” of her case after August 2000. Appellant’s Br. at
39. But because CNA’s decision was based largely on the reports of
Dr. Karegeannes from March and November of 2001, this argument is
without merit.    Accordingly, we focus our discussion on the
substantiality of evidence supporting CNA’s decision.

                                  -10-
specific findings to the contrary.          Abromitis’ affidavit includes

subjective pain complaints but no medical evidence. J.A. 334. Dr.

Burke’s report was based on a single examination in anticipation of

litigation, in contrast to Dr. Karegeannes’ years of treating the

patient,    and    Dr.   Burke     identified   no    specific     functional

limitations to contradict Dr. Karegeannes’ evaluation of Abromitis’

physical abilities in November FCE.           J.A. 313-14.      Likewise, Dr.

Cammarata’s diagnosis of hand arthritis did not identify any

specific functional limitations such as the inability to type.

J.A. 351-52.       And Maggie Kelly’s report was ambiguous as to

Abromitis’ ability to perform a sedentary job.             J.A. 338 (finding

it “uncertain whether Mrs. Abromitis could work an 8-hour day”

(emphasis added)).

      Therefore,    it   was     reasonable   for    CNA   to   rely    on   Dr.

Karegeannes’ representation that Abromitis was capable of sedentary

work with the option of changing positions every thirty minutes.

J.A. 572.      Dr. Pinder’s labor market survey identified local

sedentary jobs that permitted such changes of position.                J.A. 324-

26.   CNA could thus fairly conclude that Abromitis was not “unable

to engage in any occupation for which [she was] qualified by

education, training or experience,” as the Plan required. J.A. 866

(emphasis added).




                                     -11-
     It follows that CNA’s decision was supported by substantial

evidence.   The district court’s ruling that CNA did not abuse its

discretion was thus correct.



                            CONCLUSION

     For the reasons stated herein, the judgment of the district

court is affirmed.



                                                          AFFIRMED




                               -12-
