                     IN THE UNITED STATES COURT OF APPEALS

                                  FOR THE FIFTH CIRCUIT



                                        No. 01-30950
                                      Summary Calendar



       LORI A. BOURGEOIS,

                                                            Plaintiff-Appellant,

                                             versus

       PRENTISS PROPERTIES LIMITED, INC., Etc., Et Al.,

                                                            Defendants,

       UNUM LIFE INSURANCE COMPANY OF AMERICA,

                                                            Defendant-Appellee.


                   Appeal from the United States District Court for
                         the Western District of Louisiana
                             (USDC No. 99-CV-1705)
           _______________________________________________________

                             January 31, 2002
Before REAVLEY, DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

       Plaintiff-Appellant Lori Bourgeois appeals the district court’s decision upholding



       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
UNUM Life Insurance’s denial of long term disability benefits. On submission of

stipulated facts in lieu of a bench trial, the district court held that UNUM did not abuse its

discretion under the plan by denying Bourgeois’ claim.1 For the reasons that follow, we

AFFIRM.

I.     Background

       Lori Bourgeois, a former office building manager in Dallas, Texas, suffers from

fibromyalgia, a poorly understood condition that can cause severe nonspecific pain

throughout the body. Neither the parties’ briefs nor the record contains a clear definition

of fibromyalgia, but UNUM does not dispute the existence of fibromyalgia or its potential

to cause a disability. Other courts have concluded that the condition may be, but is not

always, disabling.2

       The parties agree that July 16, 1997 was Bourgeois’ last day of active employment

at Prentiss Properties, and was therefore the last day she was covered by the company’s

long term disability plan. She planned to leave for four to six weeks to recover from

depression and pain. She attempted to return to work part-time at Prentiss Properties

from October 12, 1997 to November 30, 1997, but ultimately could not continue under

       1
         The district court’s five sentence Ruling and Judgment does not comply with the spirit of
Rule 52(a), which requires Findings of Fact and Conclusions of Law. However, the facts are not
in dispute and the legal issues briefed by the parties are straightforward. The Court accordingly
sees no need to prolong this litigation by vacating and remanding the case to the district court for
additional explanation. The Court also notes the absence of a separate order of final judgment as
required by Rule 58. However, the parties have waived any objection to this deficiency, and the
order of July 26, 2001 is a final appealable order within the meaning of 28 U.S.C. § 1291.
       2
           See Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) (citations omitted).

                                                  2
even this reduced schedule. Bourgeois applied for long term disability benefits from

UNUM a year later, on November 28, 1998. To substantiate her claim that fibromyalgia

prohibited her from performing the “material and substantial duties” of her job while she

was still covered by the plan, Bourgeois supplied to UNUM the following evidence:

      •      An Attending Physician’s Statement of Disability (APS) by Mary Vernon, a
             marriage and family counselor who treated Bourgeois for depression from
             September 13, 1996 through May 20, 1997. Vernon did not provide an
             opinion on Bourgeois’ capacity to work or provide a disability date. Her
             notes did not state that Bourgeois’ depression was caused by fibromyalgia.

      •      The notes and summary of Dr. David Bonnet, a family physician,
             describing his examinations of Bourgeois from June 30, 1997 through
             November 17, 1997. He diagnosed her with fibromyalgia on July 14, 1997
             and his notes from that visit reflect that she “may have to go to short-term
             disability.” Through November her condition would cyclically worsen and
             then improve. He noted that Bourgeois was experiencing pain, but did not
             describe her physical limitations. On her last visit, his notes reflect that her
             condition had not substantially improved and had “basically plateaued.”

      •      Two reports prepared by a physical therapist at the Baylor Outpatient center
             on July 17, 1999 and August 19, 1999, indicating that Bourgeois had been
             diagnosed with fibromyalgia, was experiencing pain and headaches, and
             included on her “Problem list” an inability to work.

      •      An APS by Dr. Samir Salama, a psychiatrist. In a form dated “1/5/99,” he
             stated, “Patient is unable to work at this time.” He believed she had first
             become unable to work sometime in July 1997, although he did not provide
             a more specific date and had first treated her in November 1998. He also
             identified fibromyalgia as a “secondary condition” contributing to her
             depression.

      •      Notes and an APS by Dr. Jimmy Cole, a clinical psychologist. He first
             treated Bourgeois in February 1998, and stated in December 1998,
             “[patient] is unable to function in a work situation requiring regular
             attendance.” In his opinion she had chronic depression and pain from
             fibromyalgia, and had been unable to work since December 1997.


                                             3
         •         Dr. Ladislas Lazaro, a rheumatologist who began treating Bourgeois in
                   February 1998, wrote UNUM that he believed based on his last visit with
                   her in August 1998, that she could “definitely” work in a capacity falling
                   into a “sedentary to light duty job restriction.” He stated he had never
                   recommended disability for the patient, and that “nothing is preventing Ms.
                   Bourgeois from working from a standpoint of musculoskeletal diseases.”

         •         Bourgeois supplied a disability statement she prepared after filing her
                   benefit claim, detailing her symptoms and limitations. The majority of the
                   statement was written in the present tense, and outlined her limitations as
                   she was experiencing them in 1998. The section of the statement dedicated
                   to her difficulties at Prentiss Properties did not specify whether her
                   problems occurred before she ceased full-time employment.

         •         In a supporting statement, Bourgeois’ secretary, Patricia O’Hara, described
                   Bourgeois’ gradually declining performance at work. However, O’Hara
                   could not say whether Bourgeois’ problems were physical or emotional.

After reviewing the evidence, UNUM denied Bourgeois’ claim on May 8, 1999.

II.      Analysis

         When a benefit plan governed by ERISA provides the plan administrator with

discretion to decide the applicant’s entitlement to benefits, the standard of review in

federal court is abuse of discretion.3 An administrator vested with discretion under the

plan abuses its discretion if its decision is arbitrary and capricious.4 If the benefit plan is

administered by a party who has a conflict of interest, “that conflict must be weighed as a




         3
             Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 295 (5th Cir. 1999) (en banc).
         4
             Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 214-15 (5th Cir.
1999).

                                                     4
facto[r] in determining whether there is an abuse of discretion.”5 The Fifth Circuit uses a

“sliding scale” approach to weighing the conflict of interest–the greater the potential

conflict, the less deference given the administrator’s decision.6 We review the district

court’s assessment of the benefits determination de novo.7

       UNUM concedes that because it both funded the plan and made benefit decisions,

it had the sort of conflict of interest entitling its decision denying benefits to a “modicum

less deference” than an independent decision would be.8 Bourgeois argues that because

Prentiss Properties dropped UNUM as its benefit provider after Bourgeois filed for

benefits and before UNUM reached a decision on her case, UNUM had the “most severe

conflict of interest imaginable.” UNUM’s potential payout to a thirty-six year old was

substantial, and UNUM would not be able to recoup its losses from future Prentiss

Properties premiums. UNUM counters that it had already lost money on the Prentiss

account, demonstrating its willingness to pay claims fairly and at a loss. Bourgeois has

no concrete evidence that UNUM’s approach to her claim changed when Prentiss

cancelled its UNUM contract.

       Assuming without deciding that Bourgeois’ “guaranteed loss” theory evidences an


       5
        Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (citation and internal
quotes omitted).
       6
           Vega, 188 F.3d at 297.
       7
           Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 601 (5th Cir. 1994).
       8
           Vega, 188 F.3d at 301.

                                                5
above average administrator/funder conflict of interest,9 UNUM’s view of the

administrative record was still well within reason and not an abuse of discretion. The

UNUM claims adjuster had Dr. Bonnet’s July 14, 1997 diagnosis of fibromyalgia, Dr.

Lazaro’s opinion that Bourgeois was not disabled when he saw her in 1998 and that she

was not limited by a musculoskeletal disease, Dr. Cole’s opinion that Bourgeois had been

unable to work only since December 1997, and Dr. Salama’s opinion that Bourgeois had

been unable to work since an unspecified date in July 1997. Bourgeois did not adduce

any concrete evidence that as of July 16, 1997, she was unable to perform the substantial

and material aspects of her job due to fibromyalgia.10

       With respect to Bourgeois’ complaint that UNUM ignored her own statement and

her secretary’s, UNUM simply made clear, as it was entitled to, that it would not use

those statements as substitutes for a medical opinion regarding her physical limitations

and whether fibromyalgia was the cause.11 In any event, Bourgeois’ own disability

       9
         The Court does not assume that UNUM had “the greatest conflict imaginable” and does
not believe that a near de novo review is warranted by the conflict situation described by
Bourgeois. Bourgeois’ position that this Circuit should abandon the abuse of discretion standard
where an administrator has any clear conflict of interest is, as Bourgeois recognizes, at odds with
Supreme Court and Fifth Circuit precedent.
       10
           Cf. Woo v. Deluxe Corp., 144 F.3d 1157, 1161 (8th Cir. 1998) (finding that the plan
administrator abused its discretion by ignoring the retrospective opinions of treating physicians
that a plaintiff with scleroderma became disabled while still employed).
       11
          See Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329, 333-34 (5th Cir.
2001) (finding that an administrator did not abuse its discretion by according almost no weight to
a doctor’s conclusory statement of disability, unsupported by medical evidence); Yeager v.
Reliance Standard Life Ins. Co., 88 F.3d 376, 382 (6th Cir. 1996) (discussing the importance of
medical support for fibromyalgia-related disabilities, given the subjective nature of the symptoms).

                                                 6
statement does not describe whether her difficulties at work occurred during her active

employment or subsequent attempt to return to work part-time, and her secretary did not

know whether Bourgeois’ decline was due to physical or “emotional problems.”

       Finally, Bourgeois argues that UNUM’s denial was based on an erroneous

understanding of the magnitude of her responsibilities at Prentiss Properties. Whatever

her responsibilities were, there is no evidence in the administrative record that during the

period of her active employment, she was unable to perform them because of

fibromyalgia. No doctor has ever stated that during the relevant period, fibromyalgia

limited her ability to perform any of her duties. Nor did any doctor describe the

symptoms Bourgeois experienced during her active employment such that one of

UNUM’s vocational specialists could conclude she was unable to perform the substantial

and material functions of her job.

III.   Conclusion

       UNUM’s denial of Bourgeois’ claim for benefits was supported by the

administrative record, and was not an abuse of discretion. The judgment of the district

court is AFFIRMED.




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