                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-3429
                       ___________________________

                               Michelle E. Cooper

                      lllllllllllllllllllll Plaintiff - Appellant

                                          v.

                     Metropolitan Life Insurance Company

                      lllllllllllllllllllll Defendant - Appellee

                                   MetLife, Inc.

                            lllllllllllllllllllll Defendant
                                    ____________

                   Appeal from United States District Court
                 for the Eastern District of Missouri - St. Louis
                                 ____________

                             Submitted: April 6, 2017
                               Filed: July 5, 2017
                                 ____________

Before WOLLMAN and LOKEN, Circuit Judges, and NELSON,1 District Judge.
                         ____________

NELSON, District Judge.



      1
       The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota, sitting by designation.
       Michelle Cooper brought this action pursuant to the Employee Retirement
Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(1)(B), claiming that
Metropolitan Life Insurance Company (“MetLife”) improperly denied her long term
disability (“LTD”) benefits under a group insurance plan sponsored by her former
employer, Anheuser-Busch Companies, LLC (“Anheuser-Busch”). The district court2
entered summary judgment in favor of MetLife, finding that there was no abuse of
discretion. Cooper now appeals from that decision, arguing that the court erred in
applying an abuse of discretion standard of review to MetLife’s decision, and that it
improperly excluded two affidavits from the record. Alternatively, Cooper contends
that MetLife abused its discretion in denying LTD benefits. Finding no error, we
affirm.

                                         I.

       From August 2008 until May 2012, Cooper worked at Anheuser-Busch as a
business-to-business coordinator. Her responsibilities in that position consisted
primarily of acting as a point of contact for customers, which she accomplished
through use of the phone, email, and social networks. Through her employment,
Cooper was a participant in the Group Insurance Plan for Certain Employees of
Anheuser-Busch Companies, LLC and its Subsidiaries (the “Plan”). Disability
benefits under the Plan are funded by MetLife, which, as the Plan’s claim fiduciary,
is also responsible for adjudicating claims for those benefits. For purposes of LTD
benefits, the Plan defines the terms “disabled” and “disability” as follows:

      Disabled or Disability means that, due to Sickness or as a direct result
      of accidental injury:




      2
       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.

                                         -2-
             You are receiving Appropriate Care and Treatment determined by
             Your Physician as necessary to treat the Sickness or injury;

             You are complying with the requirements of such treatment; and

             You are unable to earn:

                   during the Elimination Period and the next 24 months of
                   Sickness or accidental injury, more than 80% of Your
                   Predisability Earnings or adjusted Predisability Earnings at
                   Your Regular Occupation from any employer in Your
                   Local Economy; and

                   after such period, more than 80% of Your Predisability
                   Earnings from any employer in Your Local Economy at
                   any gainful occupation for which you are reasonably
                   qualified taking into account Your training, education and
                   experience.

       Due to illness, Cooper ceased working at Anheuser-Busch in October 2011.
On November 4, 2011, she submitted an initial claim with MetLife for short term
disability (“STD”) benefits. To support her claim, Cooper provided a Supplemental
Attending Physician Statement (“APS”) completed by her physician, Dr. Varsha
Rathod, which listed Cooper’s primary diagnosis as “Sjogren’s syndrome/SLE
[systemic lupus erythematosus],” and her secondary diagnosis as migraine headaches.
Dr. Rathod subsequently determined that Cooper could return to work on January 9,
2012, which she did. MetLife approved Cooper’s claim for STD benefits through
January 8, 2012.

       Cooper continued to work at Anheuser-Busch through May 21, 2012, when she
again left work, complaining of fatigue, joint pain, and poor focus. On September 12,
2012, MetLife received a second STD claim covering this new period of absence. In
the APS supporting the claim, Dr. Rathod opined that Cooper could sit for two hours


                                         -3-
continuously, stand or walk zero to one hour continuously, lift up to ten pounds
occasionally, perform various fine motor movements, and operate a motor vehicle on
a limited basis. She went on to opine, however, that Cooper could not climb,
twist/bend/stoop, or reach above shoulder level, that she needed to move frequently
when sitting, and had “visual field affects caused by Plaquenil.” In Dr. Rathod’s
opinion, Cooper was “100% disabled currently” due to fatigue, joint pain, headaches,
pleurisy, chest pain, and inability to focus. She further noted that “[w]e have tried to
work thru’ work accommodations and push her limits – it did not work after a 5
month trial.”

         On December 11, 2012, MetLife denied Cooper’s second STD claim. In
explaining its decision, MetLife highlighted what it considered to be a lack of
“clinical evidence such as test results” to substantiate Cooper’s “subjective
complaints.” On the evidence before it, MetLife concluded that there was not a
sufficient basis upon which to conclude that Cooper could not perform her job duties.
It advised her that further consideration of her claim would require “clinical or
diagnostic evidence of functional deficits.” This decision was followed up the
following month with a notification that Cooper’s initial LTD claim—based on an
alleged disability date of October 26, 2011—was denied because she had returned to
work from January 9, 2012 to May 21, 2012, and therefore had failed to complete the
180-day elimination period required by the terms of the Plan. MetLife informed her
that it had opened a new LTD claim with a disability date of May 23, 2012.3

     To support this second LTD claim, Cooper once again submitted an APS from
Dr. Rathod, which was broadly similar in its diagnoses and conclusions to that
submitted in connection with the first STD claim. Dr. Rathod noted objective

      3
        Although Cooper did not dispute that she had not met the requirements of the
elimination period, she nevertheless appealed the denial of her initial LTD claim by
letter dated April 14, 2013, arguing that she was unable to work and was entitled to
benefits.

                                          -4-
findings of pallor and slight tenderness of the left flank, and listed Cooper’s
medications as Lunesta, potassium bicarbonate effervescent, and Seasonique.
MetLife also received treatment notes submitted by Cooper’s chiropractor, Dr. Joseph
Lane, which documented objective findings of muscle spasms in the cervical and
thoracic regions. Dr. Lane had treated Cooper with chiropractic manipulation and
unattended electrical muscle stimulation.

       MetLife denied Cooper’s second LTD claim by letter dated May 3, 2013. The
letter documented that Dr. Rathod had diagnosed Cooper with SLE, migraines,
Sjogren’s syndrome, and chronic fatigue syndrome, but noted that there was an
absence of clinical findings that would objectively support these diagnoses. In
particular, MetLife observed that although various lab tests had apparently been
ordered by Dr. Rathod, no results had been submitted for review. On the whole,
MetLife concluded that the findings submitted by Drs. Rathod and Lane did “not
appear to be of such severity as to correlate with the severely restrictive physical
limitations offered by Dr. Rathod.” The letter concluded by informing Cooper of her
right to appeal the claim denial, and advising her once again to submit any other
relevant records in her possession to facilitate further review.

       Although Cooper did not specifically appeal the May 3, 2013 denial, she
continued to contact MetLife about all of her claims in connection with her appeal of
the first LTD benefits denial. On May 6, 2013, Dr. Rathod submitted notes from
office visits on February 5, March 22, and May 3, 2013, detailing complaints of
“kidney issues” and migraines. MetLife referred these and previous records to Dr.
Elena Schiopu, an Independent Physician Consultant (“IPC”), and—like Dr.
Rathod—a specialist in rheumatology, for review. Dr. Schiopu duly prepared a report
listing her findings and conclusions, which was submitted to MetLife on May 20,
2013.




                                         -5-
       In the report, Dr. Schiopu stated that she had reviewed all available
documentation from Cooper’s four disability benefits claims, as well as Cooper’s job
description. She also spoke by phone with Dr. Rathod, although she was unable to
reach Dr. Lane. Although Dr. Rathod opined that Cooper was “too fatigued to return
to work,” she conceded that there were “no musculoskeletal reasons for [Cooper] to
be having restrictions and limitations at work.” The report noted agreement between
the doctors that Cooper could potentially return to work on a trial basis, though she
should be “closely followed.” Ultimately, Dr. Schiopu concluded—in keeping with
previous MetLife determinations—that there was an absence of objective clinical
findings sufficient to support a determination that Cooper was disabled for purposes
of the Plan.

       MetLife faxed the IPC report to Drs. Lane and Rathod on May 22, 2013, and
requested that they provide any comments by June 5, 2013. Neither doctor
responded. MetLife also alerted Cooper to the contents of the report and requested
that she contact her doctors to ensure that they had received the report, and to forward
any comments they might have. Cooper acknowledged receipt of MetLife’s letter on
May 28, 2013, and attached a copy of a blood test showing an abnormal anti-nuclear
antibody (“ANA”) reading to her response. She also indicated that she had met with
a retinal specialist who had confirmed that she still had blind spots in her central
vision, and had recommended that she not take Plaquenil, as that could exacerbate the
problem. Cooper stated that taking Plaquenil had previously enabled her to work full
time, and that since she had stopped taking it, her fatigue had increased greatly. On
June 5, 2013, MetLife received a report from the Retina Institute in St. Louis,
Missouri, regarding Cooper’s visual impairments. The report indicated that a full
field electroretinogram (“ERG”) had shown mild, diffuse rod and cone dysfunction
in the right eye, and borderline rod and cone dysfunction in the left eye. The treating
physician noted, however, that these results were not consistent with Plaquenil
retinopathy. He recommended that Cooper undergo a follow-up ERG in two to three
years to monitor progression.

                                          -6-
       These new reports were reviewed by a MetLife Appeals Nurse Consultant
(“APNC”) to determine whether they needed to be forwarded to Dr. Schiopu for
reconsideration of her IPC report. The APNC ultimately concluded that the ANA lab
report did not need to be forwarded because it merely confirmed the diagnosis of
lupus, which Dr. Schiopu had not disputed when reviewing Dr. Rathod’s records.
The APNC further determined that the ERG report did not impact the claim given that
the findings of mild rod and cone dysfunction were not consistent with Plaquenil
retinopathy. Finally, the APNC reviewed Dr. Rathod’s previous comments regarding
Cooper’s “brain fog” and poor concentration, for purposes of determining whether
they warranted referral to a psychiatrist for review. Because there was no objective
medical evidence to indicate the severity of the impairment, however, the APNC
decided no referral was necessary.

      MetLife notified Cooper that her appeal had been denied on June 12, 2013.
While recognizing Cooper’s continued subjective symptoms and complaints, MetLife
noted that it was “without proof” that these symptoms or complaints rendered her
disabled as defined by the Plan. Cooper filed this action on November 18, 2014, and
MetLife moved for summary judgment, which the district court granted on July 20,
2016. Applying an abuse of discretion standard of review, the court concluded that
MetLife had properly considered the medical records before it in finding that
Cooper’s illness did not render her disabled as defined by the Plan. In making this
decision, the court refused to consider affidavits from Drs. Lane and Rathod
questioning the veracity of Dr. Schiopu’s report, because it found that these affidavits
were not properly part of the administrative record.




                                          -7-
                                           II.

                                           A.

      Cooper first challenges the district court’s application of the abuse of discretion
standard to her denial of benefits. We review the district court’s decision de novo.
Ingram v. Terminal R.R. Ass’n of St. Louis Pension Plan for Nonschedule Emps., 812
F.3d 628, 630 (8th Cir. 2016).

       In general, a claim administrator’s denial of benefits is subject to de
novo review by the district court. Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989). Where the plan grants the administrator or fiduciary “discretionary
authority” to determine eligibility for benefits, however, the standard of review is
relaxed, and abuse of discretion becomes the appropriate benchmark. See id. Under
the abuse of discretion standard, we will uphold a claim fiduciary’s decision so long
as it is reasonable and supported by substantial evidence. Hampton v. Reliance
Standard Life Ins. Co., 769 F.3d 597, 600 (8th Cir. 2014) (citing King v. Hartford
Life & Accident Ins. Co., 414 F.3d 994, 998-1000 (8th Cir. 2005) (en banc)). “A
decision is reasonable if a reasonable person could have reached a similar decision,
given the evidence before him, not that a reasonable person would have reached that
decision.” Ingram, 812 F.3d at 634 (emphasis original) (citation and quotation
omitted).

       Here, the Plan confers on fiduciaries, including MetLife, “discretionary
authority to interpret the terms of the Plan and to determine eligibility for and
entitlement to Plan benefits in accordance with the terms of the Plan.” The parties do
not disagree that this language is sufficient on its face “to trigger the abuse-of-
discretion standard.” Waldoch v. Medtronic, Inc., 757 F.3d 822, 829 (8th Cir. 2014).
Cooper contends, however, that the conflict of interest inherent in MetLife’s dual role
as both the evaluator and the payor of benefits claims under the Plan renders a “less

                                          -8-
deferential” version of abuse of discretion review appropriate. Relying on the
Supreme Court’s decision in Metropolitan Life Insurance Co. v. Glenn, 554 U.S. 105
(2008), she argues that the district court erred by not properly weighing MetLife’s
conflict of interest as a factor in its analysis.

       Cooper is correct that Glenn requires a reviewing court to account for conflicts
of interest in determining whether an administrator has abused its discretion. Our
precedent, however, has consistently rejected the notion that the mere presence of a
potential conflict of interest is sufficient to warrant a less deferential standard. See
e.g., Whitley v. Standard Ins. Co., 815 F.3d 1134, 1140 (8th Cir. 2016); Hackett v.
Standard Ins. Co., 559 F.3d 825, 830 (8th Cir. 2009) (observing that “the conflict
does not change the standard of review applied by the district court”). Such a result,
we have recognized, would be “contrary to the case-specific test adopted in Glenn.”
Whitley, 815 F.3d at 1140. While a conflict of interest must be “weighed as a factor,”
Glenn, 554 U.S. at 115 (citation and quotation omitted), the weight afforded to it will
depend on the facts presented to the court. Factors we have identified in the past as
tending to demonstrate a consequential conflict of interest include evidence that the
insurer’s claims review process was tainted by bias; that the medical professionals
who reviewed the claim for benefits were employed by the insurer, or that their
compensation was tied to their findings; and that the insurer acted as little more than
a rubberstamp for favorable medical opinions. See Whitley, 815 F.3d at 1140;
Carrow v. Standard Ins. Co., 664 F.3d 1254, 1259 (8th Cir. 2012).

        Here, Cooper presents us with no evidence of these factors, or of other indicia
of biased decision making. Indeed, the record suggests that MetLife conducted a
careful and thorough review of all of the documents provided to it, and that it relied
on the medical expertise of an appropriately qualified independent expert in making
its final decision. As the Glenn Court noted, an inherent conflict of interest “should
prove less important (perhaps to the vanishing point) where the administrator has
taken active steps to reduce potential bias and to promote accuracy.” 554 U.S. at 117.

                                          -9-
In this instance, the district court did not err in affording only minimal weight to
MetLife’s conflict of interest. See Whitley, 815 F.3d at 1140.

       It was likewise not error, as Cooper contends, for the district court to exclude
the affidavits of Drs. Lane and Rathod which she proffered at summary judgment.
When an administrator’s benefits determination is reviewed for abuse of discretion,
“the scope of review is limited to the evidence that was before the administrator.”
Siegel v. Conn. Gen. Life Ins. Co., 702 F.3d 1044, 1049 (8th Cir. 2013). Although
this standard may be relaxed where the purpose of admitting the extrinsic evidence
is limited to determining the proper standard of review, Waldoch, 757 F.3d at 830,
Cooper’s purpose here is to challenge the accuracy of Dr. Schiopu’s report. This is
a matter that could have been brought before MetLife in the claims appeal process,4
and the district court did not abuse its discretion in excluding these affidavits from
the record.

                                          B.

      We now turn to consider whether MetLife abused its discretion in denying
LTD benefits to Cooper. In doing so, “we do not substitute our own weighing of the
evidence for that of the administrator,” Gerhardt v. Liberty Life Assurance Co. of
Boston, 736 F.3d 777, 780 (8th Cir. 2013), and will affirm if the decision was
reasonable and supported by substantial evidence.

      On review of the record, we find that MetLife’s denial of LTD benefits was not
an abuse of discretion. MetLife properly considered all medical records, APS reports,
comments, and other information submitted by Cooper and her physicians. On appeal


      4
       Indeed, MetLife faxed Dr. Schiopu’s report to Drs. Lane and Rathod on May
22, 2013 for the express purpose of soliciting their comments on its accuracy, but
neither of them replied.

                                         -10-
of its initial decision, it consulted a neutral, independent doctor—with the same
specialty as Cooper’s attending physician—to review the record and make a
recommendation, and gave Cooper’s physicians an opportunity to respond. Although
Cooper contends that Dr. Schiopu’s report arbitrarily relied on a lack of objective
indicia of disability to the exclusion of subjective indicia, it is generally “not
unreasonable for a plan administrator to deny benefits upon a lack of objective
evidence.” Pralutsky v. Metro. Life Ins. Co., 435 F.3d 833, 839 (8th Cir. 2006)
(quoting McGee v. Reliance Standard Life Ins. Co., 360 F.3d 921, 924-25 (8th Cir.
2004)). This is especially so where, as here, the administrator has consistently
specified the type of information sought, and the purpose is to substantiate the extent
of the disability, rather than to question the diagnosis. See id.

       Cooper’s argument that it was arbitrary for MetLife to credit Dr. Schiopu’s
opinion that Cooper was not objectively disabled over Dr. Rathod’s competing
assessment is equally unavailing. MetLife is entitled to favor its own specialist’s
opinion, particularly given that Dr. Rathod was not tasked with interpreting
“disability” as defined by the Plan. Based on the objective evidence, there was at best
disagreement between the doctors as to Cooper’s functional abilities, and in such a
situation “plan administrators are not obliged to accord special deference to the
opinions of treating physicians.” Black & Decker Disability Plan v. Nord, 538 U.S.
822, 825 (2003). As we have observed, “[w]hen there is a conflict of opinion
between a claimant’s treating physicians and the plan administrator’s reviewing
physician, the plan administrator has discretion to deny benefits unless the record
does not support denial.” Johnson v. Metro. Life Ins. Co., 437 F.3d 809, 814 (8th Cir.
2006). Here, Dr. Schiopu’s conclusion was one “that a reasonable mind might accept
as adequate on this record.” Hunt v. Metro. Life Ins. Co., 425 F.3d 489, 491 (8th Cir.
2005).

      Finally, Cooper makes much of the fact that a MetLife APNC—not a
doctor—determined that her ANA and ERG test results did not need to be forwarded

                                         -11-
to Dr. Schiopu for her consideration. In particular, she notes that Department of
Labor regulations require a claim administrator to “consult with a health care
professional who has appropriate training and experience in the field of medicine
involved in the medical judgment” when “deciding an appeal of any adverse benefit
determination that is based in whole or in part on a medical judgment.” 29 C.F.R. §
2560.503-1(h)(3)(iii). Because MetLife allowed a nurse with unspecified training to
decide the medical importance of her lab tests, Cooper argues it violated these
regulations. In her view, this procedural failure warrants remand to the Plan or even
outright reversal.

       Arguably, we need not decide this issue, as the record suggests that Cooper did
not raise this theory before the district court. In any event, even if Cooper is correct
in her application of the regulation—an issue we decline to reach here—MetLife’s
error would not warrant the relief she suggests because it was harmless. As our sister
circuits have recognized, the proper inquiry in analyzing a claim administrator’s
compliance with § 2560.503-1 is “substantial compliance,” rather than “technical
compliance.” See Grasso Enters., LLC v. Express Scripts, Inc., 809 F.3d 1033, 1038
(8th Cir. 2016) (citing Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148, 154
(5th Cir. 2009)). “While we have not expressly adopted this substantial compliance
standard, we have applied a substantively equivalent standard, evaluating whether a
plan’s entire claim denial process provided the claimant ‘a full and fair review of her
claim.’” Id. (quoting Midgett v. Wash. Grp. Int’l Long Term Disability Plan, 561 F.3d
887, 896 (8th Cir. 2009)). Here, Cooper presents no evidence to suggest that review
of her ANA and ERG test results by a doctor would have altered MetLife’s
conclusion that she was not disabled for purposes of the Plan. Indeed, the record
reflects that the APNC correctly determined that the ANA result merely confirmed
a diagnosis of lupus—which Dr. Schiopu had already accepted—and that the ERG
had shown only mild rod and cone dysfunction that was inconsistent with Plaquenil
retinopathy. Nothing in the record shows that these findings would have altered the



                                         -12-
Plan’s determination of no disability, or that Cooper was denied a “full and fair”
review of her claim.

                                        III.

      For the foregoing reasons, the judgment of the district court is affirmed.
                      ______________________________




                                        -13-
