                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


JOEL W. CARRIGAN,                      
                 Plaintiff-Appellee,
                 v.
                                                 No. 02-1196
RELIANCE STANDARD LIFE INSURANCE
COMPANY,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                       (CA-99-430-3-MU)

                      Argued: October 29, 2002

                      Decided: January 17, 2003

        Before LUTTIG and MOTZ, Circuit Judges, and
      Andre M. DAVIS, United States District Judge for the
          District of Maryland, sitting by designation.



Vacated and remanded by unpublished per curiam opinion. Judge
Luttig wrote a concurring opinion.


                             COUNSEL

ARGUED: Joshua Bachrach, RAWLE & HENDERSON, L.L.P.,
Philadelphia, Pennsylvania, for Appellant. Louis L. Lesesne, Jr.,
LESESNE & CONNETTE, Charlotte, North Carolina, for Appellee.
ON BRIEF: Edward G. Connette, Jr., LESESNE & CONNETTE,
Charlotte, North Carolina, for Appellee.
2             CARRIGAN v. RELIANCE STANDARD LIFE INS.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Reliance Standard Life Insurance Company ("Reliance") appeals
from the district court’s grant of summary judgment in favor of Joel
Carrigan ("appellee") in this action for wrongful denial of benefits
under the Employee Retirement Income Security Act of 1974
(ERISA), 29 U.S.C. § 1001 et seq. (West 2002). As the district court
did not have the benefit of this court’s opinion in Gallagher v. Reli-
ance Standard Life Ins. Co., 305 F.3d 264 (2002), we vacate the dis-
trict court’s grant of summary judgment, and remand the case for
further proceedings.

                                  I.

   Appellee worked as a corporate officer and publisher for Goodwill
Publishing, Inc., for approximately 30 years. His job title was "Direc-
tor of Field Communications," and his job duties as described by
Goodwill Publishing included receiving calls from sales personnel,
resolving problems and complaints regarding sales, meeting with
office personnel and researching, and occasionally filling orders for
supplies, involving the lifting of boxes and packing material. The Dic-
tionary of Occupational Titles entry matched to appellee’s job
included such tasks as monitoring clerks, reviewing orders, training
clerks, issuing written and oral instructions, and preparing reports.

   Appellee also had a long history of health problems associated with
his back and legs. He had undergone four lumbar or cervical sur-
geries, the first in 1964, and had suffered chronic back pain since at
least the 1970’s. From 1995 through 1999, appellee visited multiple
physicians, including Dr. Darden, an orthopaedist, and Drs. Aiken and
Anthony, internists, regarding his back and leg problems. Dr. Darden
reported that appellee suffered from degenerative disk disease, with
a possible lumbar radiculopathy1 of the left leg. In October of 1998,
    1
  Radiculopathy is a disorder of the spinal nerve roots. See Stedman’s
Medical Dictionary 1503 (27th ed. 2000).
              CARRIGAN v. RELIANCE STANDARD LIFE INS.                 3
Dr. Darden recommended that appellee receive a microdiscectomy on
the left side between the L2-L3 vertebrae.2 Dr. Aiken noted that
appellee was in obvious pain, suffered from back spasms, and had
limited mobility and limited physical capabilities. Dr. Aiken con-
cluded that appellee had chronic severe degenerative disc disease.

   From March 1997 until November 1998, appellee was also treated
by Dr. Anthony, an internist. On a statement made in March 1999, Dr.
Anthony concluded that appellee had limited physical capabilities,
and stated that in his opinion appellee was "disabled from his past rel-
evant work as an office manager," and was "disabled from performing
even sedentary work," although no definition of "disabled" was speci-
fied.

   In May of 1999, Dr. Gudeman, another physician, concluded that
appellee suffered from moderately severe cervical degenerative disc
and spine disease with significant and bi-lateral foraminal encroach-
ment,3 and he recommended that appellee undergo a cervical diskotomy4
and fusion at the C4-5 and C5-6 vertebrae. The record does not spec-
ify whether appellee proceeded with this surgery.

   On October 19, 1998, appellee applied, through Goodwill Publish-
ing, for long-term disability benefits from Reliance, a fiduciary for
Goodwill Publishing’s long-term disability policy, an employee wel-
fare benefit plan governed by ERISA. Appellee reported that the last
day on which he worked full time was August 28, 1998, and was
totally disabled from that date on due to his chronic back and leg pain.
After evaluating the evidence submitted by appellee, Reliance denied
the claim, determining that appellee failed to satisfy the plan defini-
tion of total disability. Appellee timely appealed, and Reliance
affirmed its previous decision to deny benefits. On October 21, 1999,
appellee then filed a lawsuit pursuant to 29 U.S.C. § 1132 challenging
Reliance’s determination. After considering the administrative record,
  2
    A discectomy is the excision, in part or whole, of an intervertebral
disk. See Stedman’s Medical Dictionary 508 (27th ed. 2000).
  3
    Foramina are apertures or perforations through bone or through a
membranous structure. See Stedman’s Medical Dictionary 698 (27th ed.
2000).
  4
    Also referred to as a discectomy. See note 2.
4             CARRIGAN v. RELIANCE STANDARD LIFE INS.
the district court held that even under the more deferential abuse of
discretion standard, Reliance abused its discretion by denying the
application for benefits, and entered summary judgment in favor of
appellee. Reliance filed a timely notice of appeal.

                                  II.

   We review the district court’s grant of summary judgment de novo,
applying the same legal test as the district court. See Elliott v. Sara
Lee Corp., 190 F.3d 601, 605 (4th Cir. 1999). An ERISA plan admin-
istrator’s or fiduciary’s determinations are presumptively subject to de
novo judicial review. See Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 112-13 (1989); Doe v. Group Hospitalization & Medical
Servs., 3 F.3d 80, 85 (4th Cir. 1993). A reviewing court will use a
more deferential standard of review (such as abuse of discretion) only
when the language of the plan confers discretion upon the administra-
tor or fiduciary. See Firestone Tire, 489 U.S. at 111-12. This court,
in Gallagher, has already interpreted the very plan language now in
dispute and concluded that the plan did not confer any discretion on
Reliance to determine eligibility for benefits. 305 F.3d at 270. Hence,
we review Reliance’s eligibility determination de novo.

   Under the plan, an insured employee is "totally disabled" when, as
the result of sickness or injury, the employee "cannot perform each
and every material duty of his/her regular occupation" during the
entire "Elimination Period." J.A. 463. The "Elimination Period" is a
period of 90 consecutive days of total disability. J.A. 460, 462. The
contract also requires that a claimant "submit satisfactory proof of
total disability to [Reliance]" before benefits will be awarded. J.A.
468. As appellee claimed to be totally disabled beginning on August
28, 1998, J.A. 643, appellee’s elimination period ran from August 28,
1998, until November 26, 1998.

   This court, in Gallagher, interpreting the very plan before us now,
concluded that in order for a claimant to be eligible for benefits, he
must "submit objectively satisfactory proof that he was unable to per-
form all the material duties of his regular occupation [during the elim-
ination period]." 305 F.3d at 270. As the district court did not have
the benefit of the Gallagher opinion, we vacate its grant of summary
               CARRIGAN v. RELIANCE STANDARD LIFE INS.                     5
judgment and remand in order for it to consider appellee’s proffered
evidence using the analysis set forth in Gallagher.5

                              CONCLUSION

   For the reasons stated herein, we vacate the grant of summary judg-
ment to appellee and the award of attorneys’ fees, and remand to the
district court for further proceedings.

                                          VACATED AND REMANDED

LUTTIG, Circuit Judge, concurring:

  It is plain that the facts in the instant case are materially indistin-
guishable from those in Gallagher v. Reliance Standard Life Ins. Co.,
305 F.3d 264 (2002).

   For instance, in this case, although Dr. Anthony described appellee
as "disabled from even sedentary work," J.A. 130, he did not set forth
his definition of "disabled," and it is impossible to tell whether his
definition comported with the plan’s definition of total disability. Dr.
Anthony also did not specify at what times or during which period
appellee was disabled, and hence it is not possible to determine
whether appellee suffered from the disability diagnosed by Dr.
Anthony during the entire elimination period. Similarly, in Gallagher,
several physicians testified that the plaintiff was disabled, but did not
state that the definition of disability used was compatible with the
plan’s definition of total disability. 305 F.3d at 273-74.

   In the instant case, Dr. Darden, the orthopaedist, did not give a con-
clusion one way or the other as to whether appellee was totally dis-
abled. He did conclude that appellee had some physical limitations,
but stated that appellee could work for approximately six hours in a
work day, as long as appropriate positional changes were made. J.A.
312 (concluding that appellee could work for one hour sitting, two
  5
   Since it is unclear in light of Gallagher that appellee will be a prevail-
ing party, we also vacate the award of attorneys’ fees to appellee. See
Martin v. Blue Cross & Blue Shield of Va., Inc., 115 F.3d 1201, 1210
(4th Cir. 1997).
6             CARRIGAN v. RELIANCE STANDARD LIFE INS.
standing, one walking, and two alternatively sitting and standing).
Similarly, in Gallagher, one of the plaintiff’s treating physicians con-
cluded that the plaintiff could physically perform some of the material
tasks of his job, even though the physician concluded otherwise as to
other material tasks. 305 F.3d at 273.

   Dr. Aiken, also, never concluded one way or the other that appellee
was totally disabled. He, at best, confirmed that appellee suffered
from chronic back pain, and did note in 1996 that appellee’s back
problems could, at some point in the future, act to disable appellee
from gainful employment. J.A. 221. But he did not conclude that
appellee was disabled, nor was evidence provided that the pain
became noticeably worse beginning on August 28, 1998. Likewise, in
Gallagher, the plaintiff argued that his back pain disabled him from
performing the duties of his job. 305 F.3d at 274. But, he provided
no evidence that the back pain became noticeably worse after the date
of his alleged total disability (where, before such date, he performed
some of his job duties). Id. at 274-75.

   Appellee’s vocational expert, Patrick Clifford, did submit an evalu-
ation concluding that appellee was totally disabled under the defini-
tion of the plan. J.A. 92-95. But, Clifford did not specify that he was
referring to appellee’s condition during the elimination period, and
indeed appeared instead to be referring to appellee’s condition as of
the time of his report (on or about June 23, 1999). This also mirrors
the evidence presented in Gallagher, where the plaintiff presented a
report from a vocational expert concluding that he was totally dis-
abled under the definition used by the plan. 305 F.3d at 274 n.10. But,
the vocational expert did not provide any indication that he was refer-
ring to the plaintiff’s condition during the elimination period. Id.
Indeed, to make matters worse for appellee, Clifford relied exten-
sively on the various physicians’ reports referenced above as the basis
for his medical evaluation of appellee, J.A. 92-93, but as I noted
above, these reports did not show or imply that appellee was totally
disabled within the definition of the plan. By contrast, John Zurick,
Reliance’s vocational expert, upon reviewing some of the medical
evidence, deduced that appellee could perform at least on a part-time
basis the various duties of his job.

  In fact, I note that in several respects the plaintiff in Gallagher
presented stronger evidence of his disability than appellee. For
               CARRIGAN v. RELIANCE STANDARD LIFE INS.                   7
instance, the plaintiff in Gallagher was determined to be disabled by
the Social Security Administrator, and was awarded Social Security
benefits. 305 F.3d at 275. Appellee, by contrast, has not received an
award of benefits from the Social Security Administration, and indeed
the Disability Determination Service recommended that appellee be
denied benefits. J.A. 665. And also, in the instant case, there is at least
a dispute over whether appellee was actually at work during the elimi-
nation period, where it was apparently undisputed that the plaintiff in
Gallagher did not work after his claimed date of total disability.

   Notwithstanding the striking parallels between the facts in Gal-
lagher and the facts in this case, I am comfortable with our disposi-
tion allowing the district court to consider whether appellee is entitled
to an award of benefits under our precedent, given that Gallagher
post-dated the district court’s decision.
