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

    KURT ANTH ONY BISHOP,

             Plaintiff-Appellant,

    v.                                                   No. 06-5097
                                               (D.C. No. 04-CV-031-CVE-SAJ)
    LONG TERM DISABILITY INCOM E                         (N.D. Okla.)
    PLAN OF SA P A M ERICA, INC., an
    ERISA qualified plan administered by
    SAP American, Inc.; LIFE
    IN SU RAN CE C OM PA N Y O F
    N O RTH A ME RIC A; C IG N A ,

             Defendants-Appellees.



                            OR D ER AND JUDGM ENT *


Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.




         Kurt Bishop worked as a technology consultant for SA P A merica, Inc.

(“SAP”) and participated in SA P’s Long Term Disability Income Plan (“the

Plan”). Life Insurance Co. of North America, Inc. (“LINA”) both insures and


*
  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not binding precedent, except under the doctrines of law of the case, res judicata,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.
administers the Plan. After LINA terminated Bishop’s long-term disability

benefits and upheld termination in an administrative appeal, Bishop challenged its

decision in federal district court under the Employee Retirement Income Security

Act (ERISA), 29 U.S.C. §§ 1001-1461. The district court upheld LINA’s

termination of benefits.

      On appeal, Bishop argues that: (1) LINA improperly used the Dictionary of

Occupational Titles (“DOT”) to define the essential duties of his own occupation

instead of considering his actual duties, and thus arbitrarily and capriciously

failed to determine w hether his own occupation required travel; and (2) LINA

failed to provide a full and fair review before terminating disability benefits. W e

VAC ATE and R EM A N D for further proceedings on the first claim, and

AFFIRM the district court’s rejection of the second claim.

                                          I

      In July 1994, SA P employed Bishop as a technology consultant, a position

requiring extensive travel. Due to health concerns that interfered with his ability

to travel, SA P accommodated Bishop in January 2001 by allowing him to work as

a technology consultant who did not travel. Six months later, SAP underwent a

company restructuring that resulted in the elimination of Bishop’s position, and

terminated Bishop.

      In July 2001, Bishop submitted a claim for short-term disability benefits.

Under the Plan, an employee is totally disabled if he is “unable to perform all the

                                         -2-
essential duties of his occupation.” LINA awarded short-term disability benefits

and later approved Bishop’s claim for long-term benefits. However, it continued

to monitor Bishop’s status and eventually determined that Bishop was no longer

disabled based on the medical records of Dr. Piper, his treating physician. On

September 25, 2003, LINA informed Bishop that he no longer met the Plan

definition of total disability. In terminating Bishop’s long-term benefits, LINA

stated it had “consider[ed] the duties of the Regular Occupation as it is normally

performed in the general labor market in the national economy, not necessarily

your ability to perform your job duties per se.” It concluded that because Bishop

could perform light duty work and because the DOT defines technology

consulting as sedentary work, he was able to perform all the material duties of his

regular occupation as a technology consultant.

      B ishop filed an administrative appeal of the adverse decision. On review ,

LINA upheld the termination of benefits after noting Bishop’s failure to provide

additional medical evidence. Thereafter, Bishop brought the instant action in

federal district court, arguing that LINA’s use of a DOT job description rendered

its decision arbitrary and capricious. In particular, he contended that LINA erred

in failing to consider whether travel was an essential duty of his job as a

technology consultant. The district court found that Bishop’s job at the time of

his termination did not require travel and upheld LIN A’s termination of benefits.




                                          -3-
Subsequently, the court denied Bishop’s motion to reconsider, and Bishop

appealed.

                                          II

      W e review the district court’s factual findings for clear error, W ilcott v.

M atlack, Inc., 64 F.3d 1458, 1461 (10th Cir. 1995), and its legal conclusions de

novo, applying the same standards as the district court. DeGrado v. Jefferson

Pilot Fin. Ins. Co., 451 F.3d 1161, 1167 (10th Cir. 2006). W hen a plan gives an

adm inistrator discretionary authority to determine eligibility for benefits, we

review the administrator’s actions under an arbitrary and capricious standard.

Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1002-03 (10th Cir. 2004).

However, when, as here, an administrator both insures and administers a plan and

thereby operates under an inherent conflict of interest, we accord less deference

to its decisions. Under this less deferential standard, an administrator must show

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 1006. Substantial evidence entails:

      such evidence that a reasonable m ind might accept as adequate to
      support the conclusion reached by the decision maker. It requires
      more than a scintilla but less than a preponderance. In determining
      whether the evidence in support of the administrator’s decision is
      substantial, we must take into account whatever in the record fairly
      detracts from its weight. M oreover, substantiality of the evidence is
      based upon the record as a whole.




                                          -4-
Rekstad v. U.S. Bancorp, 451 F.3d 1114, 1119-20 (10th Cir. 2006) (quotations

and citations omitted).

      W e start our analysis by considering the language of the Plan. As indicated

above, Bishop is totally disabled under the Plan if he is “unable to perform all the

essential duties of his occupation.” The Plan neither defines “essential duties” or

“his occupation” nor establishes a method for determining the “essential duties of

his occupation.” Notably, it does not reference DOT definitions.

      In considering identical plan language, this court has stated that “the

relevant LINA standard for ‘own occupation’ disability is whether [the insured]

w as capable of performing his own job” with his employer at the time he was

terminated. Caldw ell v. Life Ins. Co. of N . Am., 287 F.3d 1276, 1283 (10th Cir.

2002) (emphasis in original). “A key determination in the inquiry before the

administrator was whether [the insured] could perform all the essential duties of

his job at the time he left [employment].” Id. at 1284. In Caldwell, we held

LINA failed to give adequate weight to evidence that the claimant could not lift

heavy objects as required of his particular position as a “customer service

representative.” Id. at 1285-86. Although customer service representatives did

not ordinarily engage in heavy lifting, Caldwell’s specific job required him to

occasionally fill in as a “rig hand” – a position that entailed lifting objects

between 50 and 100 pounds. Id. at 1284-85. Because evidence in the record

showed that Caldwell’s particular job required heavy lifting and that his disability

                                           -5-
prevented him from performing this duty, we determined that LINA’s denial of

benefits was arbitrary and capricious. Id. at 1285-86.

       In the instant case, w hich centers around identical plan language, LINA

was likewise required to consider Bishop’s actual job duties in defining “his

occupation.” Failure to address whether traveling was an essential duty of

Bishop’s job at the time of his termination – as Bishop claimed it was – rendered

the decision arbitrary and capricious. Ordinarily, “the remedy when an ERISA

administrator fails to make adequate findings or to explain adequately the grounds

of her decision is to remand the case to the administrator for further findings or

explanation.” Id. at 1288 (citations omitted). However, we need not remand if

the record conclusively establishes that travel was not an essential duty of

Bishop’s job. In its M arch 2, 2006 Opinion and Order, the district court found

that “at the time plaintiff filed his initial disability benefits claim, his job did not

require him to travel.” This finding, however, does not address whether the

non-travel accommodation was permanent or merely temporary, and thus does not

conclusively determine whether travel was an essential duty of Bishop’s job at the

time of his termination. Cf. Blickenstaff v. R.R. Donnelley & Sons Co. Short

Term Disability Plan, 378 F.3d 669, 671, 678 (7th Cir. 2004) (concluding that

record showed insured’s job was accommodated permanently and that use of

accommodated job description was therefore not error).




                                            -6-
      The record does not compel a conclusion that travel was not an essential

duty of Bishop’s job. The only job description in the record states that extensive

travel is an essential duty for the technology consultant job. 1 A series of email

messages between SAP and a LINA vocational rehabilitation counselor indicates

likewise. In response to LINA’s general question on whether an employee who

could not travel could work as a non-traveling technology consultant, SA P stated:

      If an employee worked in the [Professional Services Organization]
      group, which [Bishop] did, then it’s a technical consultant who needs
      to travel. The Technical Consultants in other groups have
      completely different job descriptions and we couldn’t just place the
      traveling consultant in one of those jobs.

Aplt. A pp. at 374.

      Nonetheless, SAP provided Bishop an accommodation, allowing him to

work without traveling from January to June 2001. LINA therefore argues that at

the time of Bishop’s termination in June 2001, accommodation rendered travel a

non-essential duty of his job. W e reject this contention. Again, our review does

not compel a finding that accommodation was permanent and does not reveal why




1
  Although the long-term disability case manager for LINA asked SAP to prepare
a completed Job Requirements form without the travel requirement in January
2002, no such form appears in the administrative record. In any event, it seems
inappropriate for a plan administrator to request that an employer prepare job
descriptions omitting specific requirements. The employer, and not the plan
administrator, is in the position to independently and most accurately describe an
employee’s job duties.

                                         -7-
accommodation ended. Accordingly, we cannot conclude travel was not an

essential duty of Bishop’s job at the time of his termination. 2

      LINA argues in the “Summary of Argument” section of its appellate brief

that even if travel were an essential duty, Bishop is not disabled as defined in the

Plan. This argument is not developed in the body of the brief. W e therefore need

not address it and deem it waived. Cf. Franklin Sav. Corp. v. United States,

180 F.3d 1124, 1128 n.6 (10th Cir. 1999) (deciding that superficially developed

argument w as waived); Sports Racing Servs., Inc. v. Sports Car Club of Am.,

Inc., 131 F.3d 874, 880 & n.9 (10th Cir. 1997) (holding that party who noted

issue and made “several broad, conclusory statements” on appeal waived

argument for failure to develop).

      Accordingly, we remand to the district court with instructions to remand to

LIN A for further proceedings addressing whether travel was an essential job duty

for Bishop’s technology consultant position at the time of his termination. See




2
  W e note that in assessing short-term disability, LINA seemed to consider the
non-travel accommodation temporary. Dr. Nackley, an independent doctor who
review ed Bishop’s claim for short-term benefits, stated in his assessment:
“[Bishop] reported that prior to the limitations, his employer accommodated him
with no travel responsibilities. As the limitations were placed on [Bishop], the
employer w as no longer able to accommodate these” (emphasis added).
Dr. Nackley based his statements on a history provided to him by LINA. Also, in
a July 6, 2001 medical assessment, Dr. Piper noted that “w ork now demanded = ie
travel.”


                                          -8-
DeGrado, 451 F.3d at 1175-76 (recognizing that remand is proper remedy when

plan administrator failed to make adequate findings). 3

                                         III

      Lastly, Bishop contends that LINA failed to provide a full and fair review

as required by ERISA . He first raised this claim in a Rule 59(e) motion for

reconsideration. W e review denial of a Rule 59(e) motion for abuse of discretion.

See Comm. for First Amend. v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992).

“Grounds w arranting a motion to reconsider include (1) an intervening change in

the controlling law , (2) new evidence previously unavailable, and (3) the need to

correct clear error or prevent manifest injustice.” Servants of the Paraclete v.

Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citation omitted). Because B ishop’s

argument was not based on newly discovered law or facts and does not implicate

manifest injustice or clear error, we hold the district court did not abuse its

discretion in denying this motion. See id.




3
     The record reveals that LINA also failed to address the effect job stress
would have on Bishop’s ability to perform all the essential duties of his job.

                                          -9-
                                        IV

      W ith respect to the substantive denial of benefits, we VAC ATE and

R EM A N D with instructions to the district court to remand to LINA for further

proceedings. W e AFFIRM the district court’s denial of Bishop’s Rule 59(e)

motion.



                                                   Entered for the Court


                                                   Carlos F. Lucero
                                                   Circuit Judge




                                       -10-
