UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DWIGHT L. WILCOX, II,
Plaintiff-Appellant,

v.
                                                                      No. 98-1036
RELIANCE STANDARD LIFE INSURANCE
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Frederic N. Smalkin, District Judge.
(CA-97-605-S)

Argued: December 2, 1998

Decided: March 23, 1999

Before WILLIAMS and MOTZ, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Senior Judge Michael wrote the
opinion, in which Judge Motz joined. Judge Williams wrote a concur-
ring opinion.

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COUNSEL

ARGUED: William Parry Dale, MCCHESNEY & DALE, P.C.,
Bowie, Maryland, for Appellant. Michael J. Burns, CHRISTIE,
PABARUE, MORTENSEN & YOUNG, P.C., Philadelphia, Pennsyl-
vania, for Appellee. ON BRIEF: Charles F. Fuller, MCCHESNEY
& DALE, P.C., Bowie, Maryland, for Appellant. James A. Young,
CHRISTIE, PABARUE, MORTENSEN & YOUNG, P.C., Philadel-
phia, Pennsylvania; Eric S. Lipsetts, Annapolis, Maryland, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

MICHAEL, Senior District Judge:

This is an ERISA case. The action was brought by the appellant,
Dwight Wilcox, following a denial of his application for long term
disability benefits by appellee, Reliance Standard Life Insurance
Company ("plan" or "Reliance"). The district court granted appellee's
motion for summary judgment finding that the plan administrator
acted reasonably in exercising his discretion to deny the benefits
sought. For the reasons discussed below, we affirm.

I.

The focus of this dispute is an employee disability benefits plan
issued by defendant, Reliance Standard, covering employees of the
plaintiff's former employer. Beginning in late 1992 or early 1993, Mr.
Wilcox argues that he was diagnosed as suffering from fibromyalgia.
Despite the diagnosis of this illness in early 1993, the plaintiff contin-
ued to work until June 30, 1995. On January 5, 1996 the plaintiff ten-
dered a claim seeking benefits for total disability due to "esophageal
eruption, fibromyalgia, clinical depression, chronic fatigue [and]
recurrent diarhea [sic]." Reliance denied the claim on July 8, 1996. In
its denial letter Reliance seems to articulate two reasons for its deci-
sion: (1) Wilcox failed to provide objective medical evidence of an
illness that prevents him from performing his job; (2) whatever illness
may be present was pre-existing.1 Wilcox requested a review of this
_________________________________________________________________
1 Reliance did not specifically state that it believed any illness that Wil-
cox might be suffering under was pre-existing. Instead, the appellant

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denial and Reliance affirmed its original denial for the same reasons
asserted in the first denial. This action followed.

In late 1992 or early 1993 Mr. Wilcox contends that he began to
suffer "from a cluster of symptoms which severely" impacted his abil-
ity to do his job.2 Dr. Richard Colgan diagnosed these symptoms as
being caused by fibromyalgia3 and indicated that the symptoms first
appeared in February 1993. Though plaintiff eventually sought opin-
ions from a number of other doctors, none of those doctors actually
saw the plaintiff until after June 30, 1995 when he had left his job.
It is, therefore, questionable whether they can speak to his disability
during the time he was employed and covered by the plan adminis-
tered by Reliance. Plaintiff's doctors do not all agree that plaintiff suf-
fers from fibromyalgia. In considering Mr. Wilcox's claim, Reliance
received and considered information from a long list of doctors who
treated the plaintiff. The review of Mr. Wilcox's claim was conducted
by a disability claims manager, was reviewed by a claims supervisor,
and included consultation with an in-house nurse who concedes no
expertise or specific knowledge of fibromyalgia. Reliance ultimately
determined that Mr. Wilcox's file lacked objective medical documen-
_________________________________________________________________

noted that the symptoms complained of had a twenty year history.

2 The symptoms include: chronic, severe joint pain, inability to concen-
trate, extreme fatigue, recurring headaches, insomnia, inability to remain
awake, need for frequent naps in his office, loss of short term memory,
loss of endurance, loss of organizational skills, inability to articulate
things.
3 "Fibromyalgia, also called fibrositis, is a syndrome of musculoskeletal
pain that occurs within the broad spectrum of non-articular rheumatism.
Pain may arise from structures outside of the joint, such as the bones,
tendons, ligaments, and muscles. Patients often complain of musculo-
skeletal pain, stiffness, and easy fatigability. Patients with fibromyalgia
are symptomatically made worse by stress. Some people have felt that
fibromyalgia is a masked form of depression, or an anxiety disorder.
However, psychological tests have been normal in many fibromyalgia
patients. Fibromyalgia is a disease of dysfunction, rather than a progres-
sive physical deterioration to crippling deformities." Yeager v. Reliance
Standard Life Insurance, 88 F.3d 376, 378 (6th Cir. 1996).

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tation that substantiates the existence of "total disability" as defined
by the plan.4

The district court granted summary judgment in favor of Reliance.
In a well reasoned opinion, the court determined that the appropriate
standard for it to use in reviewing the benefits denial was the "modi-
fied abuse-of-discretion" standard identified in Ellis v. Metropolitan
Life Ins. Co., 126 F.3d 228 (4th Cir. 1997). Applying this standard,
the court concluded that "an administrator or fiduciary, free of any
conflict of interest, would have been reasonable in exercising its dis-
cretion to deny the benefits sought in this case."

II.

Appellant first contends that the lower court erred in applying an
abuse of discretion standard to its review of Reliance's denial of ben-
efits. We review the district court's application of the abuse of discre-
tion standard de novo. Brogan v. Holland , 105 F.3d 158, 161 (4th Cir.
1997). Where a benefit plan grants an administrator discretionary
authority to determine eligibility or to construe the terms of the plan,
the denial decision must be reviewed for abuse of discretion.
Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 111, 115
(1989). Reliance points to language in the plan's"Insuring Clause" to
establish that it had the requisite discretion to grant or deny benefits.
The "Insuring Clause" states:

        INSURING CLAUSE: We will pay a Monthly Benefit if an
        Insured:
_________________________________________________________________

4 The group policy defined Total Disability as follows:

          "Totally Disabled" and "Total Disability" mean that as a result
          of an Injury or Sickness:

          (1) during the Elimination Period and for the first 60 months
          for which a monthly benefit is payable, an insured cannot
          perform the material duties of his/her regular occupation ....

"Sickness" is defined by the plan as an "illness or disease causing Total
Disability which begins while insurance coverage is in effect for the
insured...."

                     4
           (1) is Totally Disabled as the result of a Sickness or
          Injury covered by this Policy;

           (2) is under the regular care of a physician;

           (3) has completed the Elimination Period; and

           (4) submits satisfactory proof of Total Disability to us.

(emphasis added). Though the Fourth Circuit has not had occasion to
construe "satisfactory to us" language as granting discretion, district
courts in this circuit have interpreted "satisfactory proof" language as
conferring on the administrator discretion to grant or deny benefits
and sister circuit courts considering identical or similar language have
also determined that it conferred discretion. Ceasar v. Hartford Life
& Accident Ins. Co., 947 F.Supp. 204, 206 (D.S.C. 1996); Yeager v.
Reliance Standard Life Ins. Co., 88 F.3d 376 (6th Cir. 1996); Snow
v. Standard Ins. Co., 87 F.3d 327 (9th Cir. 1996); Donato v. Metro-
politan Life Ins. Co., 19 F.3d 375 (7th Cir. 1994). Only the most tor-
tured reading of the language in Reliance's "Insuring Clause" could
lead to a conclusion that the plan in this case is not vested with the
discretionary authority to determine eligibility for benefits.

Having determined that the abuse of discretion standard is required
in this case, the district court correctly went on to consider the con-
flict of interest presented by Reliance's positions as fiduciary of the
plan's beneficiaries and as the plan's insurer. Bedrick v. Travelers Ins.
Co., 93 F.3d 149 (4th Cir. 1996). This court has previously held that
the effect of such a conflict is to reduce the deference normally given
under the abuse of discretion standard, but only to the extent neces-
sary to counteract any influence unduly resulting from the conflict. Id.
Mr. Wilcox adduced no evidence of a conflict other than the inherent
conflict present when a plan administrator acts as both fiduciary and
insurer. We, therefore, find that the district court was correct in its
application of the modified abuse of discretion standard.

III.

We turn next to whether Reliance abused its discretion in denying
benefits to Mr. Wilcox. As is so often stated in ERISA cases, this

                     5
court cannot substitute its judgment for that of the plan administrator
where the administrator's decision was reasonable. In their denial let-
ter to Mr. Wilcox, Reliance informs the plaintiff that it has considered
the documents submitted by the plaintiff's doctors and notes that he
has "a 20 year history of recurrent GI problems, vomiting, diarrhea,
major depression and fibromyalgia." After reviewing this evidence
and the other information submitted by the plaintiff, Reliance con-
cluded: "Given these facts, we have determined that you do not meet
your group policy's definition of Total Disability and your claim must
be denied." The policy indicates that a beneficiary can only collect
long term disability benefits for a sickness "which begins while insur-
ance coverage is in effect." Based on the evidence submitted by plain-
tiff's own doctors, a decision maker could reasonably conclude that
Mr. Wilcox suffered from a pre-existing illness and as such was not
covered by the plan.

Instead of resting its decision to deny benefits on this ground alone,
Reliance also stated that it would not award benefits without "objec-
tive medical information" that documents "the presence of a physical
or mental condition limiting your ability to perform your own or regu-
lar occupation." Appellant contends that it is unreasonable to demand
objective evidence of fibromyalgia where, given the current state of
science, there are no objective tests to diagnose the disorder. In
response, Reliance argues that it did not request objective proof of the
fibromyalgia, but sought objective proof that the appellant was totally
disabled. Throughout the course of this litigation, Reliance has been
unable to inform Mr. Wilcox what type of evidence would have satis-
fied their request and Reliance's argument attempting to distinguish
between objective evidence that Mr. Wilcox is totally disabled and
objective evidence that he has fibromyalgia seems to us to be hair
splitting of the highest order. Though other circuits have addressed
somewhat similar requests for objective proof and determined that in
the context of fibromyalgia, the request is unreasonable, we need not
reach this troubling issue here. See, e.g., Mitchell v. Eastman Kodak
Co., 113 F.3d 433 (3rd Cir. 1997). Reliance clearly referred to appel-
lant's 20 year history of pre-existing symptoms and was not unreason-
able in denying benefits on the basis that Mr. Wilcox's condition pre-
existed his status as an insured under the plan.

                    6
IV.

Accordingly, the district court's order granting summary judgment
to defendant is

AFFIRMED.

WILLIAMS, Circuit Judge, concurring in the judgment:

I agree that the long-term disability contract permitted Reliance to
exercise its discretion in considering Wilcox's claim. I also agree that
Reliance did not abuse that discretion when it denied Wilcox's claim
for disability, but for somewhat different reasons.

The majority agrees that the contractual phrase granting Reliance
discretion in its claim-evaluation process states that a claim will be
paid if "satisfactory proof of Total Disability" is submitted. (J.A. at
227.) Reliance based its denial on that allowable exercise of discre-
tion -- that the "satisfactory proof" it required was not provided. Cir-
cumstances of Wilcox's situation did not make Reliance's evidentiary
requests unreasonable. Wilcox's previous ability to work despite a
twenty-year history of various medical difficulties, combined with a
lack of consensus among his treating physicians regarding a diagnosis
and the absence of supporting tests and studies, rendered Reliance's
requests for additional proof of actual disability eminently reasonable.
The denial of benefits, therefore, must be upheld by this Court in
accordance with Firestone Tire and Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989). Accordingly, I concur in the judgment.

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