                                                                    [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                         March 8, 2006
                                     No. 04-16717
                                                                        THOMAS K. KAHN
                               ________________________                     CLERK

                          D. C. Docket No. 03-21665-CV-MGC

GEORGE REEVE,

                                                                          Plaintiff-Appellant,

                                             versus

UNUM LIFE INSURANCE COMPANY OF AMERICA,

                                                                         Defendant-Appellee.


                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                       (March 8, 2006)

Before EDMONDSON, Chief Judge, BARKETT, Circuit Judge, and HUNT *,
District Judge.

PER CURIAM:


       *
        Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
      George Reeve (“Reeve”) appeals the grant of summary judgment to Unum

Life Insurance Company of America (“Unum”) on his claim for disability benefits

under a group long term policy (the “LTD Policy”), and two group life insurance

policies (the “Life Policies”) governed by the Employee Retirement Income

Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). Unum denied Reeve’s

claim for benefits on the grounds that he was not disabled under the terms of the

policy, and he filed suit to challenge this decision. The district court determined

that the decision of the administrator must be affirmed and summary judgment was

granted.

      On appeal, Reeve argues that the district court erred in not reviewing

documents beyond those that were available to the plan administrator and that a

review of such materials establishes genuine issues of material fact regarding

whether Reeve was “disabled” which preclude summary judgment. We affirm.

                                     BACKGROUND

      Reeve’s claim for disability stems from a heart attack he suffered in 1993

which required numerous subsequent hospitalizations. Reeve claims that he has

been totally “disabled” by his heart condition under the terms of both the LTD

Policy1 and the Life Policies2 since August 15, 2001. In January 2003 Reeve


      1
          Unum’s LTD Policy defines “disability” as when Unum determines that:


                                              2
submitted a claim for benefits under all these policies, indicating that he was a

construction supervisor whose responsibilities included supervising approximately

500 employees and inspecting construction projects, which required him to travel

to construction sites and occasionally climb stairs and help workers lift heavy




                you are limited from performing the material and substantial duties of your
                regular occupation due to your sickness or injury; and you have 20% or more loss
                in your indexed monthly earnings due to the same sickness or injury.

                After 24 months of payments, you are disabled when UNUM determines that due
                to the same sickness or injury, you are unable to perform the duties of any gainful
                occupation for which you are reasonably fitted by education, training or
                experience.

      “Material and substantial duties” mean duties that:
             are normally required for performance of your regular occupation; and cannot
             reasonably be omitted or modified, except that if you are required to work on
             average in excess of 40 hours per week, UNUM will consider you able to perform
             that requirement if you are working or have the capacity to work 40 hours per
             week.

      “Regular occupation” means
            the occupation that you are routinely performing when your disability begins.
            UNUM will look at your occupation as it is normally performed in the national
            economy, instead of how the work tasks are performed for a specific employer or
            at a specific location.”

      Unum LTD Policy Ex. A.
      2
          Under the Life Policies, “disability” is defined as:
               You are disabled when UNUM determines that:
               –during the elimination period, you are not working in any occupation due to your
               injury or sickness; and
               –after the elimination period, due to the same injury or sickness, you are unable to
               perform the duties of any gainful occupation for which you are reasonably fitted
               by training, education, or experience

      Unum Life Policy Ex. B.

                                                 3
objects. Daniel Electrical Contractors, Inc. (“Daniel”), Reeve’s employer, notified

Unum that Reeve’s job functions required continuous standing and walking, and

that Reeve was unable to perform these functions due to his disability.3

          Reeve’s cardiologist, Reza Azar, submitted an Attending Physician’s

Statement (“APS”) stating that Reeve had a condition known as ischemic

cardiomyophy, and recommended that Reeve not engage in any heavy exertion

including running, climbing, lifting, or stressful situations. Dr. Azar also

recommended that Reeve retire since his job responsibilities would be detrimental

to his health. Reeve also submitted to Unum a decision of the Social Security

Administration, which eventually granted Reeve’s claim for disability income

benefits, after this claim had originally been denied.

      Unum denied Reeve’s claim on the basis of the medical opinions of Unum’s

Medical Director, George DiDonna, who is board-certified in internal medicine,

and Unum’s independent cardiologist, David Korn. Didonna inspected Reeve’s

file and noted that Reeve had returned to work following his 1993 heart attack and

had not had any recurrent myocardial infarction. Based on Reeve’s complete

      3
          Daniel’s “position profile” summarized Reeve’s position as follows:
               Directs, administers, coordinates and controls the activities of the organization
               necessary for the installation of materials and equipment on jobs. This includes
               primary responsibility for CAD, pre-fab, materials management and delivery, and
               on-site operations. Responsible for directing activities in support of the corporate
               strategy, plans and policies, and goals and objectives as established by the
               President. Responsible for all aspects of assigned operating units.

                                                 4
medical file, Dr. DiDonna concluded that Reeve had the exercise capacity of a

“healthy, middle-aged, deconditioned man.” David Korn reviewed Reeve’s

medical record and found no evidence of cardiac impairment preventing Reeve

from returning to work in his regular occupation.

      Additionally, Unum performed a labor market survey to determine whether

Reeve’s fieldwork constituted a “material and substantial duty” of Reeve’s

occupation under the terms of the LTD Policy. Unum’s “vocational rehabilitation

consultant” classified Reeve’s position as Vice President, Operations (Electrical

Contractor) and reviewed the occupational duties of similar officers from twelve

employers from various locations in the United States. The survey revealed that

some level of field work and travel was required, and that the average time spent in

the field was 25.4%. All but one employer indicated the presence of stress in this

position. Further, the consultant noted that lifting significant amounts was not a

material and significant duty of Reeve’s occupation. Pursuant to the findings of

this survey, Unum’s consultant classified Reeve’s occupation as “light work.”

      Following this review of his claim, Unum denied Reeve’s claim for benefits

under all the policies, explaining that it had determined Reeve was not limited from

performing the material and substantial duties of his regular occupation, or the

duties of any gainful occupation for which he was reasonably fitted by education,



                                          5
training, or experience. Reeve appealed the denial of his claims, and as part of this

appeal Reeve’s file was examined by Dr. Alfred Parisi, Unum’s medical consultant

board-certified in internal medicine with a subspeciality in cardiovascular diseases.

Dr. Parisi concluded that there had been “no cardiac event or occurrence in 2001”

that was different from anything that had happened in the years since Reeve’s heart

attack, and that based on Reeve’s treadmill performance he was able to perform

light work in a 40 hour work week. Pursuant to Dr. Parisi’s report, Unum

reaffirmed its decision to deny benefits to Reeve under the policies.

       Reeve filed suit in federal district court for payment of past disability

benefits, attorneys fees, and costs under ERISA 4 which resulted in the Summary

Judgement presently under review.

                                 STANDARD OF REVIEW

      We review de novo a district court’s grant of summary judgment, viewing all

the evidence, and drawing all reasonable inferences, in favor of the non-moving

party. Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1243 (11th Cir. 2004). We will



       4
          Reeve originally filed suit against Unum in the Circuit Court for Miami-Dade County,
Florida, on five state law claims. These claims were for (1) breach of the LTD Policy; (2)
breach of the covenant of good faith and fair dealing; (3) intentional infliction of emotional
distress; (4) negligent infliction of emotional distress; and (5) punitive damages. Unum removed
the action to the United States District Court for the Southern District of Florida as the policies
were part of an employee welfare benefit plan governed by ERISA, and therefore subject to
federal jurisdiction. The district court dismissed the state law claims and gave Reeve leave to
amend its complaint to state a claim under ERISA.

                                                6
affirm the grant of summary judgment only if there is no genuine issue as to any

material fact, and the moving party is entitled to judgment as a matter of law. Fed.

R. Civ. P. 56(c). As the district court correctly noted, HCA Health Servs. of Ga.,

Inc. v. Employer’s Health Insurance, 240 F.3d 982, 992-93 (11th Cir. 2001) sets out

the relevant standard for reviewing denial of benefits by claims administrators. See

also Williams v. Bellsouth Telecomms., Inc., 373 F.3d 1132, 1137 (11th Cir. 2004)

(“recapitulating” the approach in HCA). In reviewing a denial of benefits, the court

first looks “to the plan documents to determine whether the plan documents grant

the claims administrator discretion to interpret disputed terms. If the court finds

that the documents grant the claim administrator discretion, then at a minimum, the

court applies arbitrary and capricious review,” whereas if it finds no discretion, it

will apply de novo review. HCA, 240 F.3d at 993.

                                    DISCUSSION

      Reeve’s only argument on appeal is that the district court “failed to conduct a

de novo review of the record” on the issue of whether Unum’s decision was

“correct,” and that, had it done so, there would be a genuine issue of material fact as

to whether Reeve was “disabled” under the policies since various materials Reeve

filed with the district court allegedly presented such issues of fact. In support of

this argument, Reeve cites to Moon v. American Home Assurance Co., 888 F.2d 86,



                                           7
89 (11th Cir. 1989), which states that to examine “only such facts as were available

to the plan administrator at the time of the benefits denial is contrary to the concept

of a de novo review.” Id. at 89. Moon, however, is inapposite, and Reeve’s

argument fails to account for the arbitrary and capricious standard of review.

      In this case, it is undisputed that the policies granted Unum discretion to

determine eligibility, therefore eliminating the possibility of a straightforward de

novo review. Moon, which Reeve cites in support of his argument, deals with a

plan that “makes no provision for discretionary authority,” 888 F.2d at 88, and

therefore addresses the de novo standard of review, not the arbitrary and capricious

standard which applies here. In the first step, a reviewing court reviews only “the

plan documents and disputed terms de novo.” HCA, 240 F.3d at 993 n.23. This is

precisely what the district court did in this case, and we agree that Unum’s denial of

benefits was “correct” under this standard.

      The burden of proving disability belongs to Reeve, see Horton v. Reliance

Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 2001), and Reeve failed to

demonstrate that the plan administrator’s determination that he failed to meet the

definition of disability was arbitrary and capricious. Unum’s LTD Policy defines

“regular occupation” as a national standard, and Unum therefore conducted a labor

market study to determine what the duties of a Vice President of Operations in



                                           8
Reeve’s position entailed, and concluded that his work was “light duty.” Further,

Unum’s review of Reeve’s medical condition established that his condition did not

prevent him from conducting either his “regular occupation” under the LTD Policy

or “gainful occupation” under the Life Policies. Reeve fails to point out anything in

the plan documents or in the documents submitted to Unum that would lead to a

different conclusion.

AFFIRMED.




                                          9
