                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-1782
                                      ____________

                                KRISTEN ANN DAVIES,

                                                   Appellant

                                             v.

           FIRST RELIANCE STANDARD LIFE INSURANCE COMPANY
                              ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 1-15-cv-02348)
                      District Judge: Honorable John E. Jones, III
                                     ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  November 6, 2017

            Before: JORDAN, HARDIMAN, and SCIRICA, Circuit Judges.

                          (Opinion Filed: November 13, 2017)
                                    ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
HARDIMAN, Circuit Judge.

       Kristen Ann Davies appeals a summary judgment denying her claim for long-term

disability benefits under the Employee Retirement Income Security Act (ERISA), 29

U.S.C. §§ 1001–461. We will affirm, essentially for the reasons stated by the District

Court in its thorough and cogent opinion.

                                             I1

       A pharmaceutical sales representative, Davies stopped working in August 2011

and requested disability benefits from her employer’s insurer, First Reliance Standard

Life Insurance Company. First Reliance approved the claim, and Davies’s disability

payments began to accrue in January 2012. Like many policies, the one issued by First

Reliance entitled Davies to receive disability payments for 24 months if she was unable

to perform her regular occupation, but she would receive payments beyond that time only

if she was unable to perform any occupation.

       As the 24-month period was winding down, First Reliance asked Davies to submit

to an independent medical examination. After reviewing Davies’s medical records and

interviewing her, the examining physiatrist (who was chosen by First Reliance) observed

that “[t]he majority of her current complaints seem to be of a psychological nature . . . .”




       1
        The District Court had jurisdiction under 28 U.S.C. § 1331. See 29 U.S.C.
§ 1132(a)(1)(B). We have jurisdiction under 28 U.S.C. § 1291.
                                              2
App. 821. He also concluded that Davies was “capable of sedentary activities, including

work,” despite her fibromyalgia, chronic fatigue, and “[d]epression/anxiety.” Id.

       Relying heavily on the physiatrist’s opinion, First Reliance informed Davies that

her disability benefits would be terminated at the end of the “regular occupation” period.

Its decision was based on two factors: (1) Davies could still perform “a sedentary

occupation”; and (2) even if she had been totally disabled from performing any

occupation, the policy’s limitation on benefits for disabilities “caused by or contributed to

by mental or nervous disorders” barred her from receiving additional benefits because,

according to Davies’s own treating physicians, “depression and anxiety are amongst [her]

primary diagnoses . . . .” App. 383–84. Davies, through her mother, appealed First

Reliance’s decision and submitted records from her treating physicians, along with

information from a pharmacy listing possible side effects of her medications and

descriptions of her mother’s “own, regular first-hand interaction with her daughter.”

Davies Br. 10. The appeal submission included a fall 2013 note in which Davies’s

psychiatrist stated: “Though patient does have ADHD and anxiety, they are being

aggravated by her pain and medical situation . . . .” App. 890.

       In consideration of Davies’s appeal, First Reliance located a rheumatologist to

perform another independent medical examination. After summarizing Davies’s medical

history and records the rheumatologist concluded after an examination that “no organic

musculoskeletal disease such as fibromyalgia . . . corroborate[d] all of her multiple

                                             3
subjective complaints.” App. 964. Accordingly, First Reliance upheld its prior decision

and sent Davies a denial letter that included summaries of records from both her treating

physicians and the independent medical examiners.

       Davies sued First Reliance under ERISA, claiming it had improperly stopped

paying disability benefits. Davies and First Reliance filed cross-motions for summary

judgment. Finding that First Reliance’s benefits determination was not arbitrary and

capricious, the District Court entered summary judgment in favor of the insurer and

denied Davies’s motion. Davies filed this appeal.

                                            II2

       Davies argues that First Reliance’s claim determination (A) is not entitled to any

deference; and (B) was improper because she established a total disability from any

occupation, and the policy’s “mental or nervous disorders” limitation does not apply. We

address each argument in turn.

                                             A

       The District Court was right to reject Davies’s argument that the Court should

apply something more than the “arbitrary and capricious” standard that usually applies to

a denial of benefits where, as here, the administrator has “fiduciary discretionary



       2
         We review summary judgments de novo, applying the same standard as the
District Court. Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 413 (3d Cir. 2011). We also
review de novo the “district court’s determination of the proper standard to apply in its
review of an ERISA plan administrator’s decision . . . .” Id.
                                             4
authority to determine eligibility . . . .” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

101, 115 (1989). In Estate of Schwing v. Lilly Health Plan, 562 F.3d 522 (3d Cir. 2009),

we squarely rejected the argument that a structural conflict of interest—which arises

when the same entity administers benefits and pays claims—necessarily demands

increased scrutiny. Id. at 525–26. We concluded that Metropolitan Life Insurance Co. v.

Glenn, 554 U.S. 105 (2008), abrogated this “sliding scale” approach, so courts should

instead “apply a deferential abuse of discretion standard of review across the board and

consider any conflict of interest as one of several factors . . . .” Schwing, 562 F.3d at 525.

The District Court correctly applied this binding precedent.

                                              B

       Not only is the abuse of discretion standard “deferential” and “difficult to

overcome,” App. 20, the policy itself sets a high bar after 24 months. Under its terms,

Davies had to be totally disabled from any occupation. And even if she were totally

disabled, the cause of her disability had to be independent of her depression, anxiety, and

other non-physical issues. Because that limitation precludes further benefits for

disabilities “caused by or contributed to by mental or nervous disorders,” App. 46

(emphasis added), the District Court correctly recognized that Davies “must establish that

it was arbitrary and capricious for First Reliance to determine that her physical conditions

alone did not render her totally disabled from performing any occupation,” App. 19

(emphasis added).

                                              5
       The problem for Davies is that the medical evidence she needs to support her

claim that she is totally disabled from any occupation also confirms that her depression

and anxiety contribute to her disability. Davies concedes that the record is replete with

references, several of which the District Court listed and which we need not reiterate

here, linking her physical and psychiatric conditions. Davies Br. 27. In fact, the evidence

Davies cites is more than sufficient to establish that First Reliance’s termination decision

was not arbitrary and capricious. See, e.g., Davies Br. 6 (according to Davies’s treating

psychiatrist, hers is a “complicated case and it is very hard to separate how much [of her]

symptoms are coming from depression”).3

       And as the District Court correctly observed, what little evidence Davies presents

that does not link her physical and psychiatric conditions—her mother’s observations and

subjective beliefs, criticisms of the independent rheumatologist’s report, and potential

side effects of her medications—does not satisfy her burden to show that she is physically

incapable of performing any occupation. The independent medical examiners’ opinions




       3
         Davies points out that First Reliance explained in a letter that the limitation
applied if the claimant’s “main disability occur[ed] as a result of a mental or nervous
disorder.” App. 330 (emphasis added). But it was within First Reliance’s “fiduciary
discretionary authority to determine eligibility for benefits [and] to construe the terms of
the plan” when it terminated her benefits two years later. See Firestone, 489 U.S. at 115.
In any event, Davies’s own psychiatrist classified her mental diagnoses as “primary” and
her physical conditions “secondary.” App. 422–23.
                                             6
that Davies was not totally disabled merely reinforce the conclusion that a “multitude of

evidence” already supports. App. 17.

       Our assessment of the structural and procedural factors underlying First Reliance’s

decision does not alter this conclusion. “Since Glenn, we have only been willing to

disturb an administrator’s decision based on a conflict of interest if evidence either

suggests the conflict actually infected the decisionmaking or if the conflict is one last

straw that calls a benefits determination into question.” Dowling v. Pension Plan for

Salaried Emps. of Union Pac. Corp. & Affiliates, 871 F.3d 239, 251 (3d Cir. 2017). We

agree with the District Court that many of Davies’s asserted “procedural shortcomings”

are conclusory and unsupported. Others, such as an allegation that a First Reliance claim

reviewer’s notes “assuming” Davies “seem[ed]” to have the capacity for sedentary work

were improper, App. 299–300, are either inconclusive or unpersuasive in the face of

ample support for the termination decision found in the records of Davies’s own treating

physicians.

       For these reasons, we find no error in the District Court’s conclusion that, taking

into account “the structural conflict of interest at play, the procedural inadequacies

argued by [Davies], and all of the medical evidence available to First Reliance in making

its benefits determination,” First Reliance’s decision to terminate Davies’s benefits was

not arbitrary and capricious. App. 20. Accordingly, we will affirm the judgment of the

District Court.

                                              7
