                  Not for Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

            United States Court of Appeals
                          For the First Circuit

No. 02-2498
                              HALUK BEKIROGLU,

                           Plaintiff-Appellant,

                                        v.

                  THE PAUL REVERE INSURANCE COMPANY,

                            Defendant-Appellee.


            APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT MASSACHUSETTS

              [Hon. Patti B. Saris, U.S. District Judge]


                                     Before

                           Boudin, Chief Judge,

                          Howard, Circuit Judge,

                       DiClerico,* District Judge.



    Stephen L. Raymond for appellant.

     Joseph M. Hamilton, with whom Elizabeth L.B. Greene and
Mirick, O’Connell, DeMallie & Lougee, LLP were on brief for
appellee.


                             September 25, 2003




    *
        Of the District of New Hampshire, sitting by designation.
             Per Curiam.          This appeal arises under the Employee

Retirement     Income        Security     Act    ("ERISA"),    29     U.S.C.    §

1132(a)(1)(B).      The district court granted summary judgment in

favor of the plan administrator’s decision denying long term

disability benefits to Professor Haluk Bekiroglu.                   The district

court concluded that while the decision was debatable it was not

arbitrary or capricious.             In support of that conclusion, the

district court held that the medical and surveillance evidence in

the record supported the decision that Professor Bekiroglu was

capable of the light duty work required by his position as Business

Division Director and Professor of Management and Business at

Becker College. We affirm essentially for the reasons given by the

district court in the memorandum and order dated October 16, 2002,

adding only the following comments.

             In a non-jury case, when, as here, the parties submit

cross motions for judgment on an agreed record, the case is deemed

to   be   submitted     as    stated.1         See   Garcia-Ayala    v.   Lederle

Parenterals, Inc., 212 F.3d 638, 643-44 (1st Cir. 2000).                  Instead

of drawing inferences in favor of each nonmoving party, as would

ordinarily    be   done      in   considering    cross   motions    for   summary

judgment, the court must determine the appropriate inferences to be

drawn from the factual record.                 Id.    Professor Bekiroglu can

prevail on appeal "only if he shows that the district court’s


     1
      Although this circuit has not decided whether a jury trial
might be available in an ERISA case, see Liston v. Unum Corp.
Officer Severance Plan, 330 F.3d 19, 24 n.4 (1st Cir. 2003), here
no request was made for a jury trial.

                                         -2-
factual determinations are clearly erroneous or if the district

court made an error of law."              Watson v. Deaconess Waltham Hosp.,

298 F.3d 102, 108 (1st Cir. 2002).

              It is undisputed that the deferential ERISA standard

applies.      The plan administrator’s decision will be reversed only

if the "eligibility determination was unreasonable in light of the

information available to it."             Cook v. Liberty Life Assurance Co.,

320 F.3d 11, 19 (1st Cir. 2003).                  The eligibility determination

must be       upheld   "if     it   was   within    [the     insurer’s]    authority,

reasoned, and supported by substantial evidence in the record."

Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181, 184 (1st Cir.

1998).       "The existence of contrary evidence does not necessarily

render [the insurer’s] decision arbitrary." Boardman v. Prudential

Ins. Co., 337 F.3d 9, 15 (1st Cir. 2003).

              Professor Bekiroglu contends that the district court

erred in evaluating the record evidence and, in particular, he

urges    a    different      interpretation       of   his   treating     physician’s

opinion.       He concedes that Dr. Johnson checked the "yes" box in

question seven of the attending physician’s statement, indicating

that he was released for work in his occupation.                          He argues,

however, that marking the "yes" box was a mistake and that Dr.

Johnson      intended     to    support     his     application     for     long-term

disability benefits.

              Professor Bekiroglu points to Dr. Johnson’s statement,

confirmed in her treating notes, that she would be happy to fill

out medical forms for his disability application. He contends that

                                          -3-
Dr. Johnson’s statement demonstrates that she intended to help his

application so that her responses on the attending physician’s

statement should be construed in his favor. Professor Bekiroglu

also points to Dr. Johnson’s narrative answer to the remainder of

question seven, following the "yes" box, which asked her to explain

her patient’s restrictions if he were medically unable to work at

that time.    Dr. Johnson wrote that certain symptoms made it very

difficult for Professor Bekiroglu to "function at a full level."

            Taken as a whole, Dr. Johnson’s opinion consistently

indicated    that   Professor   Bekiroglu   was    able    to    work   at   his

occupation, albeit at a somewhat reduced exertional level. Whether

Dr. Johnson "happily" agreed to complete forms in support of his

application    carries    little    persuasive   weight.        Dr.   Johnson’s

specificity about Professor Bekiroglu’s condition reveals that

although she thought he would have difficulty performing at a full

level, he would only have a slight limitation in his physical

activity. The surveillance conducted by Paul Revere confirms that

conclusion, as does Dr. Pollak’s opinion.

            While   the    record    evidence     is   open     to    different

interpretations, as the district court noted, given the deferential

standard of review Professor Bekiroglu has not shown that the

district court’s factual determinations were clearly erroneous.

Even if the appeal were reviewed de novo, we would come to the same

result.     Therefore, the summary judgment granted by the district

court in favor of Paul Revere is affirmed.



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