     Case: 10-20584 Document: 00511437754 Page: 1 Date Filed: 04/07/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             April 7, 2011

                                     No. 10-20584                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



GWENDOLYN BYRD,

                                                          Plaintiff - Appellant

v.

UNUM LIFE INSURANCE COMPANY OF AMERICA,

                                                          Defendant - Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-2822


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff Gwendolyn Byrd filed suit challenging the Unum Life Insurance
Company’s decision to terminate her long-term disability benefits. Reviewing
for abuse of discretion, the district court granted summary judgment to Unum.
Byrd appeals, and this court has jurisdiction pursuant to 28 U.S.C. § 1291.
Because we agree that Unum did not abuse its discretion, we AFFIRM.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-20584 Document: 00511437754 Page: 2 Date Filed: 04/07/2011



                                  No. 10-20584


      Byrd was employed as a chargeback associate (or accounting assistant) for
Accenture LLP when, on March 26, 2003, she suffered a repetitive-trauma work-
related hand injury later diagnosed as carpal tunnel syndrome. Her subsequent
medical complaints include that she suffered from bulging discs in her lower
back, lumbar radiculopathy, cervical discogenic pain, cervical spondylosis, and
other associated ailments. Byrd alleges that these conditions persist today.
      Byrd participated in Accenture’s group long-term disability program
administered by Unum. In July 2004, Byrd applied for and received disability
benefits. Unum paid Byrd benefits under the program from September 2003
through July 2008, when Unum terminated Byrd’s benefits after concluding that
Byrd no longer was physically unable to return to her occupation. Unum made
its decision to terminate Byrd’s benefits after asking at least three independent
physicians and two occupational experts to review Byrd’s full medical file. Those
experts agreed that Byrd would be physically able to perform her former job.
      After Unum’s appeals unit denied her appeal, Byrd filed suit in district
court under ERISA § 502(a), 29 U.S.C. § 1132(a), seeking past damages
including unpaid long-term disability benefits, a declaratory judgment that she
is entitled to future benefits under the policy, and attorney’s fees. We review the
district court’s judgment de novo, but we apply the same abuse-of-discretion test
the district court applied in assessing Unum’s decision to terminate benefits.
See Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d
533, 537 (5th Cir. 2007).
      In arguing that Unum abused its discretion, Byrd raises two arguments
on appeal. First, Byrd argues that Unum improperly failed to consider her
lumbar radiculopathy.       Byrd argues that Unum’s decision relied on an
independent medical examination performed on April 25, 2008, that did not
evaluate her spine. Byrd claims that she was diagnosed on July 3, 2007 with


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    Case: 10-20584 Document: 00511437754 Page: 3 Date Filed: 04/07/2011



                                 No. 10-20584


lumbar radiculopathy, and that she received treatment for that condition from
two treating physicians, Drs. Saqer and Opus, whose opinions were improperly
ignored by Unum. As the district court correctly noted, however, the record
indicates that Byrd’s cervical and lumbar conditions were reviewed thoroughly
by three board-certified orthopedic surgeons and considered by two vocational
specialists. At least one of those doctors explicitly addressed Byrd’s specific
lumbar complaints and noted that her lumbar problems did not justify an “overly
restrictive” work designation.    A second physician, Dr. Moses, explicitly
addressed Byrd’s complaints to Dr. Saqer and noted that those ailments would
not preclude Byrd from performing an eight-hour workday in a sedentary
occupation. Unum plainly considered Byrd’s lumbar problems and found them
insufficient to justify further benefits. We therefore reject Byrd’s argument to
the contrary.
      Second, Byrd contends that Unum failed to consider her cervical and upper
extremity impairments. Her brief states that “Byrd is limited to lifting 5 pounds
and cannot do repetitive motion . . . .” Since Unum concluded that Byrd could
exert up to 10 pounds of force – or double the amount of force Byrd believes she
can exert – Byrd argues that Unum abused its discretion. We disagree. As
discussed above, Unum’s experts reviewed Byrd’s full medical records carefully,
and each concluded Byrd could return to her previous sedentary occupation. At
least one physician – Dr. Moses – concluded Byrd could exert 20 pounds of force
occasionally and 10 pounds of force frequently.      Unum’s decision took into
account Byrd’s cervical and upper extremity impairments, and its decision is
supported by substantial evidence presented in the record.
      Unum did not abuse its discretion in denying Byrd further long-term
disability benefits. The judgment of the district court is therefore AFFIRMED.




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