     Case: 18-20616      Document: 00514931752         Page: 1    Date Filed: 04/26/2019




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


                                    No. 18-20616
                                                                                FILED
                                                                            April 26, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
DEO G. SHANKER,

              Plaintiff - Appellant

v.

UNITED OF OMAHA LIFE INSURANCE COMPANY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-2481


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Deo Shanker appeals the district court’s grant of summary judgment in
favor of United of Omaha Life Insurance Company (“United”) on his long-term
disability (“LTD”) claims. For the reasons set forth below, we AFFIRM the
judgment of the district court.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                     No. 18-20616

                                I.    Background
        Shanker was President of Intracare Behavioral Health Foundation
(“Intracare”). United was Intracare’s insurer. United issued an insurance
policy (the “Policy”) to Intracare providing that employees like Shanker would
be eligible for LTD benefits if they became “Disabled due to an Injury or
Sickness, while insured under the Policy.” The Policy defines “Disabled” in
relevant part to mean: “[B]ecause of an Injury or Sickness, a significant change
in Your mental or physical functional capacity has occurred in which [you are]
prevented from performing at least one of the Material Duties of Your Regular
Occupation on a part-time or full-time basis . . . .” In turn, “Material Duties”
are defined as “the essential tasks, functions, and operations relating to an
occupation that cannot be reasonably omitted or modified” and include “the
ability to work for an employer on a full-time basis.”           Finally, “Regular
Occupation” is defined as “the occupation You are routinely performing when
Your Disability begins.” The definition then notes:
        Your regular occupation is not limited to Your specific
        position . . . but will instead be considered to be a similar position
        or activity based on job descriptions included in the most current
        edition of the U.S. Department of Labor Dictionary of Occupational
        Titles (DOT). We have the right to substitute or replace the DOT
        with another service or other information that We determine to be
        of comparable purpose, with or without notice. To determine Your
        regular occupation, We will look at Your occupation as it is
        normally performed in the national economy, instead of how work
        tasks are performed for a specific employer, at a specific location,
        or in a specific area or region.
        In March 2015, Shanker suffered a heart attack. He then underwent
open-heart quadruple bypass surgery. He applied for LTD benefits in June
2015.    In so doing, he reported that his job’s physical requirements were
“walking, climbing, standing, lifting, driving, [and] sitting.” He also stated
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                                      No. 18-20616
that the only travel his position required was car travel between his home and
office.
          Shanker also submitted findings from his cardiologist, Dr. Sanjaykumar
Patel who indicated that Shanker should not lift twenty-five pounds, drive for
long periods of time, stand for longer than thirty minutes, or be exposed to
fumes or hot or cold weather. He further noted that Shanker, in an eight-hour
work day, could stand and sit only for up to two hours each and could walk only
for one hour.
          In September 2015, Patel responded to a letter from United seeking an
update on Shanker’s condition by indicating that Shanker had “no limitations.”
But he updated his response two weeks later with an addendum stating that
Shanker could not lift twenty-five pounds, stand for long periods of time
(defined as thirty minutes), drive, or be exposed to fumes or hot or cold
weather. 1
          United hired outside vocational consultant Patricia A. Thal to determine
whether Shanker could perform his Regular Occupation. Thal concluded that
Shanker’s job was best represented in the DOT as “President.” She stated:
“The DOT describes this occupation as requiring a sedentary physical demand
level with occasional reaching, handling, and fingering.” 2 Thal determined
Shanker’s position would involve both “sedentary and light physical demand
levels.” Light work entailed, among other things, “[e]xerting up to 20 pounds



        In contrast, Shanker’s neurosurgeon informed United that “from a neurosurgery
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standpoint, Mr. Shanker is medically stable and cleared, with no restrictions.” Shanker
concedes that his disability claim is based only on his alleged physical, not mental,
impairments.
          Thal also consulted the Standard Occupation Classification/Occupational
          2

Information Network (“SOC/O*Net”), which indicated that chief executives “[d]etermine and
formulate policies and provide overall direction of companies . . . [and] [p]lan, direct, or
coordinate operational activities at the highest level of management with the help of
subordinate executives and staff managers.”
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                                    No. 18-20616
of force occasionally.” Thal further noted that Shanker’s position required
“[f]requent to constant sitting”; “[o]ccasional to frequent standing”; and
“[o]ccasional walking, reaching, handling, and fingering.” She concluded that
Shanker would have ample job opportunities for the position of President at
both the sedentary and light physical demand levels.
      United then denied Shanker’s request for LTD benefits on the grounds
that he was not “Disabled.” Shanker appealed. Less than two weeks later, Dr.
Patel examined Shanker again and concluded that he was unable to lift
twenty-five pounds or stand for long periods of time (thirty minutes), had
limited driving abilities, and could not be exposed to fumes or hot or cold
weather.
      United retained Dr. Philip J. Podrid in connection with Shanker’s
administrative appeal.        Dr. Podrid submitted a medical record review to
United. He concluded Dr. Patel’s recommendations that Shanker “needs to
avoid heat, cold, and fumes” and “should not lift more than 25 lbs.” appeared
reasonable. But he also stated that “nothing in the records supplied . . .
support[ed]” Dr. Patel’s conclusions that Shanker could not stand for more
than thirty minutes and could drive only for limited periods of time. He opined
that “Shanker [did] not have any ongoing cardiac or neurological problems that
would necessitate any limitations or restrictions on his activities.” He thus
concluded that Shanker was “capable of working full time at a level of medium
activity.”
      United upheld its denial of Shanker’s claim. It decided that “the medical
records do not support [the claim that] Mr. Shanker had ongoing restrictions
or limitations that would prevent him from performing his occupation on a full
time basis beyond . . . the end of [the relevant time period preceding
availability of benefits].”


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                                     No. 18-20616
      Shanker sued United in state court, seeking a declaratory judgment that
he was entitled to LTD benefits. United removed the case to federal court
under 28 U.S.C. § 1331 (as well as diversity jurisdiction). 3 Shanker then filed
an amended complaint asserting claims for wrongful denial of benefits under
ERISA and for declaratory relief under Texas and federal law. United moved
for summary judgment.
      The district court granted United’s summary judgment motion.                     It
concluded that Shanker could “clearly return to work at his previous
occupation.” Shanker appealed.

                           II.   Standard of Review
      We review a district court’s grant of summary judgment de novo. Green
v. Life Ins. Co. of N. Am., 754 F.3d 324, 329 (5th Cir. 2014). The movant is
entitled to summary judgment where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Id.
(quoting FED. R. CIV. P. 56(a)).
      We recently held that we review “ERISA denials involving non-
discretionary plans” de novo “when the denial is based on a factual
determination.” Ariana M. v. Humana Health Plan Tex., Inc., 884 F.3d 246,
255–56 (5th Cir. 2018) (en banc).               We still review ERISA-denial legal
determinations de novo. See id. at 247–48. An ERISA claimant bears the
initial burden of demonstrating coverage. Perdue v. Burger King Corp., 7 F.3d
1251, 1254 n.9 (5th Cir. 1993). We interpret ERISA policies similarly to any
other insurance contract. See Green, 754 F.3d at 331.




      3  We conclude that the district court had federal question jurisdiction and that we
have appellate jurisdiction under 28 U.S.C. § 1291.
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                                   No. 18-20616
                            III.    Discussion
      Shanker first argues that the district court erred in granting summary
judgment because Dr. Patel’s and Dr. Podrid’s medical opinions on Shanker’s
physical limitations contradicted each other. He also claims the district court
gave Dr. Podrid’s conclusions greater weight than Dr. Patel’s findings. We
disagree.
      Even if we accept Dr. Patel’s conclusions at face value, the limitations he
identified do not make Shanker “Disabled” as defined in the Policy. Dr. Patel
concluded that Shanker could not lift twenty-five pounds or stand for long
periods of time (defined as thirty minutes), could engage in only limited
driving, and could not be exposed to fumes or hot or cold weather. None of
these limitations makes Shanker unable to perform the tasks “Regular
Occupation” involves. We thus conclude that no genuine dispute of material
fact exists regarding whether Shanker is “Disabled” as defined by the Policy.
      Shanker next claims that the Policy’s definition of “Regular Occupation”
is internally contradictory and thus ambiguous. We again disagree. The Policy
defines “Regular Occupation” as “the occupation You are routinely performing
when Your Disability begins.” The remaining explanation does not contradict
this definition and does not make the Policy internally contradictory. The
Policy’s definition of “Regular Occupation” is not ambiguous.
      Finally, Shanker argues that the Policy’s definition of “Regular
Occupation” is illusory because it permits United to rely on job descriptions
outside the DOT without notice. “A promise is illusory if it does not bind the
promisor, such as when the promisor retains the option to discontinue
performance.” In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010) (per curiam).
Relying on alternative job descriptions outside the DOT does not give United
license to discontinue its performance or rely on fanciful or ridiculous


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                                 No. 18-20616
descriptions. See id. No genuine fact issue exists regarding whether the
Policy’s definition of “Regular Occupation” is illusory.
      AFFIRMED.




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