                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            NOV 16 2001
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    DANIEL L. GUILD,

                Plaintiff-Appellant,

    v.                                                     No. 00-1472
                                                     (D.C. No. 98-WM-2408)
    CONTINENTAL CASUALTY                                    (D. Colo.)
    COMPANY,

                Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before EBEL , KELLY , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Plaintiff David J. Guild is appealing the district court’s entry of summary

judgment in favor of defendant Continental Casualty Company on his claim for


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
disability benefits under the Employee Retirement Income Security Act (ERISA)

of 1974, 29 U.S.C. § 1132(a)(1)(B). Our jurisdiction arises under 28 U.S.C. §

1291. We affirm.


                                   I. Background

      Plaintiff was employed as a computer systems development specialist with

Computer Data Systems, Inc. Plaintiff’s job required him to sit at a desk and

work at a computer. Through his employer, plaintiff was a beneficiary under a

disability insurance policy issued by defendant, and defendant was the

administrator of the disability benefits plan under ERISA. Plaintiff submitted a

claim for long-term disability benefits to defendant. Plaintiff alleged that he was

totally disabled and unable to perform his job because back problems prevented

him from sitting for long periods of time. Defendant denied plaintiff’s claim for

disability benefits. Plaintiff then appealed to defendant’s appeal committee, and

the appeal committee upheld the denial of plaintiff’s claim for disability benefits.

      Pursuant to 29 U.S.C. § 1132(a)(1)(B), plaintiff then brought a civil

enforcement action against defendant under ERISA to recover the disability

benefits allegedly due him. Defendant filed a motion for summary judgment, and

the parties consented to having a United States Magistrate Judge decide the

motion under 28 U.S.C. § 636(c). The magistrate judge entered an order granting

defendant’s motion for summary judgment, finding that there were no genuine

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issues of material fact for trial and that defendant’s denial of plaintiff’s claim for

disability benefits was not arbitrary or capricious.

       The magistrate judge found that the medical evidence submitted by plaintiff

did not substantiate his claim for total disability benefits. Specifically, while

plaintiff’s medical records established that he suffered from a herniated disc and

osteoporosis and that he was precluded by these conditions from heavy lifting,

squatting, or bending, the magistrate judge found that none of plaintiff’s doctors

opined that he was unable to perform his sedentary desk job. Instead, as set forth

in the report of Dr. John Papilion, the only pertinent limitation was that plaintiff

was “unable to work in a position which requires him to be upright and sitting for

more than two hours.” Aplt. App. at 16. The magistrate judge found that

defendant reasonably interpreted this limitation as only “requir[ing] that Mr.

Guild get up and move around regularly if he is sitting,”       id. at 6, as opposed to

being “an absolute limitation on sitting upright for two hours, . . . during any one

day,” id. at 7. According to the magistrate judge, defendant’s conclusion that

plaintiff was able to perform his sedentary desk job was therefore reasonable and

supported by substantial evidence, and defendant did not act arbitrarily or

capriciously in denying plaintiff’s claim for disability benefits.




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                                       II. Discussion

       “Review of a grant of summary judgment is de novo, applying the same

legal standards used by the district court.”         Kimber v. Thiokol Corp. , 196 F.3d

1092, 1097 (10th Cir. 1999). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(c).

       “In addition to the standards we use to evaluate the district court’s order,

we must also address the appropriate standard with which the court should review

[defendant’s] denial of benefits under the ERISA plan it administers.”          Pitman v.

Blue Cross & Blue Shield of Okla.     , 217 F.3d 1291, 1295 (10th Cir. 2000). The

Supreme Court has held that “a denial of benefits challenged under

§ 1132(a)(1)(B) is to be reviewed under a       de novo standard unless the benefit plan

gives the administrator or fiduciary discretionary authority to determine eligibility

for benefits or to construe the terms of the plan.”        Firestone Tire & Rubber Co. v.

Bruch , 489 U.S. 101, 115 (1989). Here, the parties do not dispute that defendant,

as administrator of the plan, had the discretionary authority to determine

eligibility for benefits. Thus, the de novo standard of review is not applicable,

and we “must uphold [defendant’s] decision to deny [plaintiff] benefits unless it


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was arbitrary and capricious.”     Chambers v. Family Health Plan Corp.        , 100 F.3d

818, 825 (10th Cir. 1996).

       Under the arbitrary and capricious standard of review, we “may not

overturn a plan administrator’s decision if it was reasonable, given the terms of

the plan, and made in good faith.”     Jones v. Kodak Med. Assistance Plan          , 169

F.3d 1287, 1292 (10th Cir. 1999). As we have explained:

       When reviewing under the arbitrary and capricious standard, [t]he
       Administrator[’s] decision need not be the only logical one nor even
       the best one. It need only be sufficiently supported by facts within
       [his] knowledge to counter a claim that it was arbitrary or capricious.
       The decision will be upheld unless it is not grounded on  any
       reasonable basis. The reviewing court need only assure that the
       administrator’s decision fall[s] somewhere on a continuum of
       reasonableness--even if on the low end.

Kimber , 196 F.3d at 1098 (quotations and citations omitted).

       “However, if a plan administrator is operating under a conflict of interest,

the court may weigh that conflict as a factor in determining whether the plan

administrator’s actions were arbitrary and capricious.”       Pitman , 217 F.3d at 1295

(quotation omitted). In cases where a conflict of interest exists, we therefore

apply a less deferential standard of review, and we have “adopted a sliding scale,

decreasing the level of deference in proportion to the severity of the conflict.”           Id.

(quotation omitted). In other words, “[t]he conflict . . . is weighed as one factor

in determining whether the plan administrator’s decision was arbitrary and

capricious.” Id.

                                             -5-
       Plaintiff claims that defendant was operating under a conflict of interest

because it is both the administrator and the insurer of the subject ERISA plan.

We agree. As the insurer of the plan, defendant had “a financial interest in

denying claims in order to remain economically viable as well as competitive

within the insurance industry.”   Id. at 1296. As a result, in its dual capacity as

both insurer and administrator, defendant was faced with “an inherent conflict of

interest between its discretion in paying claims and its need to stay financially

sound.” Id. n.4. Accordingly, we must consider defendant’s conflict of interest

as one factor in determining whether defendant’s denial of disability benefits to

plaintiff was arbitrary and capricious.

       Despite defendant’s conflict of interest, we hold that defendant had a

reasonable basis for denying plaintiff’s claim for disability benefits, and its denial

of benefits to plaintiff was not arbitrary or capricious. In order to establish a total

disability under defendant’s disability policy, plaintiff was required to prove that

he was “continuously unable to perform the substantial and material duties of his

regular occupation.” Aplt. App. at 30. As found by the magistrate judge, the

crux of this dispute was the statement of Dr. Papilion that plaintiff was “unable to

work in a position which requires him to be upright and sitting for more than two




                                          -6-
hours.” 1 Id. at 16. This statement is ambiguous and subject to interpretation. On

the one hand, as argued by plaintiff, this statement could be construed as an

absolute prohibition against sitting upright for more than two hours during any

one day. On the other hand, as argued by defendant, the statement can also be

construed as meaning only that plaintiff cannot remain seated for more than two

hours during any particular work session and that he must therefore “get up and

move around regularly if he is sitting.”   Id. at 6. We agree with the magistrate

judge that the latter interpretation is a reasonable one under the circumstances of

this case, and we therefore affirm the magistrate judge’s finding that defendant’s

denial of plaintiff’s claim for total disability benefits was not arbitrary or

capricious.



1
       Plaintiff submitted seven medical reports to the district court as part of his
opposition to defendant’s motion for summary judgment. Out of these reports,
Dr. Papilion was the only doctor who specifically addressed the issue of whether
plaintiff was subject to any sitting limitations due to his back problems. On
appeal, plaintiff has submitted the medical report of Dr. Myhra dated March 31,
1999, in which he stated that plaintiff “could not sit or stand for any long
duration.” Aplt. App. at 11. However, Dr. Myhra’s report was prepared over
seven months after the appeal committee denied plaintiff’s claim for disability
benefits, and we have held that “in reviewing decisions of plan administrators
under the arbitrary and capricious standard, the reviewing court may consider only
the evidence that the administrators themselves considered.”       Chambers , 100 F.3d
at 823. In addition, as with Dr. Papilion’s statement, Dr. Myhra’s statement can
reasonably be construed as meaning only that plaintiff must periodically get up
and move around if he is sitting for extended periods of time. We also note that,
while Dr. Myhra apparently prepared an earlier report dated January 19, 1998,      see
Aplt. App. at 26, the prior report is not part of the record on appeal.

                                           -7-
     The judgment of the United States District Court for the District of

Colorado is AFFIRMED.



                                                  Entered for the Court


                                                  David M. Ebel
                                                  Circuit Judge




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