           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
                                     No. 06-31175                                 August 17, 2007
                                   Summary Calendar
                                                                              Charles R. Fulbruge III
                                                                                      Clerk
RICK F JANIES

                                                  Plaintiff-Appellant
v.

METROPOLITAN INSURANCE CO

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                               (No. 2:05-CV-1628)


Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
              Rick Janies appeals the district court’s grant of summary judgment
in favor of Metropolitan Life Insurance Company (“MetLife”) on Janies’s claim
for wrongful termination of his disability benefits. We affirm.
                         I. FACTS AND PROCEEDINGS
       Janies was employed by CITGO Petroleum Corporation (“CITGO”) as an
event coordinator. His responsibilities included coordinating training classes,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-31175

arranging seminars, and planning educational events for employees. As a
CITGO employee, Janies participated in the company’s long-term disability plan
which is governed by the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq. He began suffering severe health problems
and applied for disability benefits in April 2003. To receive benefits for the first
twelve months of disability, the MetLife plan required that the applicant’s
medical condition prevent him from being able to earn 80% of his predisability
earnings or 80% of his indexed predisability earnings in his own occupation.
Janies’s claim was approved, and he received disability payments under the plan
for twelve months. After the first twelve months of disability payments, the
MetLife plan required that the participant be unable to earn more than 60% of
his indexed predisability earnings from any employer in his local economy at any
gainful occupation for which he was reasonably qualified, taking into account his
training, education, experience, and predisability earnings. In accordance with
the policy, MetLife notified Janies in November 2003 that he would have to meet
this new definition of disability in order to continue receiving benefits.
      During November 2003, MetLife began an investigation into whether
Janies would be entitled to receive benefits after his first twelve months of
disability. As part of that investigation, MetLife requested information from
Janies. Janies provided a statement and medical records from one doctor but no
records were received from a second doctor. On February 14, 2005, MetLife
wrote to Janies reviewing the attempts that it had made to obtain medical
information necessary to evaluate his claim and advising him that his claim was
terminated for failure to submit the necessary information. After termination,
Janies provided some additional information, which MetLife reviewed. A nurse
consultant for MetLife determined that the additional information did not
support the conclusion that Janies’s disability prevented him from working. On
April 26, 2005, Janies appealed the decision and MetLife referred it to two


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independent physician consultants who concluded that there was insufficient
information to change the initial determination. The denial was upheld.
      Janies commenced this action in state court, and MetLife removed it to the
Western District of Louisiana in September 2005.
                         II. STANDARD OF REVIEW
      This court reviews de novo the district court’s decision that a plan
administrator did not abuse its discretion in discontinuing disability benefits.
See Barhan v. Ry-Ron Inc., 121 F.3d 198, 201 (5th Cir. 1997). Since the terms
of the ERISA benefit plan give the plan administrator discretionary authority
to determine benefits, the district court reviews the denial of benefits for abuse
of discretion. See id. “[I]f the administrator’s decision on eligibility is supported
by substantial evidence and is not erroneous as a matter of law, it will be
upheld.” Id. However, because MetLife acts as both the insurer and the plan
administrator, it operates under a conflict of interest because it “potentially
benefits from every denied claim.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d
287, 295 (5th Cir. 1999). This court therefore applies a “sliding scale standard”
and grants MetLife’s decision less than full deference. Gooden v. Provident Life
& Accident Ins. Co., 250 F.3d 329, 333 (5th Cir. 2001).
                                III. DISCUSSION
      Janies challenges MetLife’s decision to discontinue disability benefits on
the basis that the administrative record establishes extensive evidence of his
ailments.    Janies also argues there is no evidence to support MetLife’s
contention that he can return to work.         Janies is correct that the record
establishes extensive evidence of his ailments. MetLife’s previous conferral of
disability benefits to Janies for twelve months establishes that. However, in
order to continue receiving disability payments after the first twelve months,
Janies’s ailments must meet the more stringent standard of preventing him from
earning more than 60% of his indexed predisability earnings at any gainful

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occupation for which he is reasonably qualified. Janies failed to establish that
his disability qualified him for benefits under this standard.
      MetLife based its denial of Janies’s claim on the conclusions of a nurse
consultant and two physician consultants. Janies argues that there is an
overwhelming amount of evidence in favor of his claim. While there is evidence
of medical problems, he provides no support or medical opinion to show that his
ailments qualify him for disability benefits within the meaning of the disability
plan at issue. The attending physician statement provided to MetLife on
January 2, 2004 indicates that Janies would improve “in a different work
environment.” Janies’ doctor advised Janies, “Not to return to present job.” The
determinations of three of MetLife’s medical consultants and the statements of
Janies’s own doctors provided substantial evidence for MetLife’s decision. Janies
has not demonstrated a genuine issue of fact as to whether MetLife abused its
discretion in discontinuing benefits.
                             IV. CONCLUSION
      The judgment of the district court is AFFIRMED.




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