           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          March 12, 2008

                                       No. 07-10287                   Charles R. Fulbruge III
                                                                              Clerk

TONI DRAMSE

                                                  Plaintiff - Appellee
v.

DELTA FAMILY-CARE DISABILITY AND SURVIVORSHIP PLAN

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                    for the Northern District of Texas, Dallas
                                 No. 3:05-CV-524


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Delta Family-Care Disability and Survivorship Plan
appeals the district court’s judgment awarding plaintiff-appellee Toni Dramse
long-term disability benefits, attorneys’ fees, costs, and interest. Delta Family-
Care Disability and Survivorship Plan argues that the district court
impermissibly imposed a per se duty to investigate Dramse’s claims and
substituted its own judgment for the reasonable judgment of the plan
administrator. Because we find that the plan administrator’s decision was


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-10287

supported by substantial evidence, we VACATE the district court’s judgment
and REMAND for further proceedings consistent with this opinion.
                                       I.
      Toni Dramse was employed by Delta Air Lines, Inc. (“Delta”) for over
sixteen years, starting as a luggage handler on May 17, 1984, and later working
as a reservations agent until she was terminated on November 16, 2000.
Dramse’s work as a reservation agent was sedentary in nature, it required no
lifting, standing, bending, or stooping. The Delta Family-Care Disability and
Survivorship Plan (the “Plan”) is an employee welfare benefits plan established
and maintained under the Employee Retirement Income Security Act of 1974
(“ERISA”). The Plan provides both short-term and long-term disability benefits
to non-pilot Delta employees.
      Delta does not pay any of the monies awarded under the benefits plan
directly. Instead, Delta periodically contributes money into a trust fund (the
“Benefits Trust”), and the Benefits Trust then pays out disability benefits.
Delta’s contributions to the Benefits Trust cannot revert back to Delta under any
circumstances. The Administrative Committee of Delta (the “Committee”) is the
plan administrator and named fiduciary for purposes of the Plan’s operation and
administration. The Committee is granted exclusive authority to interpret and
construe the benefits plan and to decide all questions of eligibility.       The
Committee delegates the initial determination of disability to Aetna Life
Insurance Company (“Aetna”). If Aetna determines that disability benefits
should be denied (or discontinued), an employee can appeal that decision to
Aetna and, if denied, then to the Committee.
      Generally, short-term disability benefits are available under the benefits
plan for up to twenty-six weeks if the participant is unable to perform her
customary job. If a claimant exhausts her short-term disability benefits, she
may apply for long-term disability benefits. Section 4.03 of the benefits plan


                                       2
                                       No. 07-10287

states that an “employee shall be eligible for Long-Term Disability provided [s]he
is disabled at that time as a result of demonstrable injury or disease (including
mental or nervous disorders) which will continuously and totally prevent [her]
from engaging in any occupation whatsoever for compensation or profit,
including part-time work.” A claimant must be totally and continuously disabled
on the date that her short-term disability benefits expired.
       On August 9, 2000, Dramse contacted Aetna alleging that she was
suffering from an on-the-job injury that originally occurred in 1997 and was
exacerbated in late 1999, when she fell backwards from her chair and hit her
head. Dramse’s medical records reveal that around this time she was suffering
from multiple physical and mental ailments, including fibromyalgia, cervical
facet syndrome, chronic lower back pain, obesity, alcoholism, and symptoms of
bipolar disorder and depression. Dr. Michael Gray, Dramse’s chiropractor,
opined in a letter to the Texas Workers’ Compensation Commission that Dramse
was unable to work, although she would be able to return to work on August 21,
2000. Aetna, therefore, certified Dramse for short-term disability benefits
through August 20, 2000.
       Dramse did not return to work on August 21, 2000, as planned, but used
sick time and vacation days to delay her return. She did attempt to work on
August 29, September 4, September 29, and October 13, 2000, but was unable
to work a full shift on any of those days. Ultimately, Dramse was terminated on
November 16, 2000.          She had neither exhausted her short-term disability
benefits nor filed for long-term disability benefits. Nevertheless, Dramse filed
suit against Delta, and as consideration for settlement of that lawsuit, she was
permitted to file a claim for long-term disability benefits.1

       1
         There is little evidence in the record concerning the claims or scope of Dramse’s
lawsuit against Delta or the terms of the settlement. In Aetna’s Event Profile Report, created
when Dramse initially filed for long-term disability benefits, it is simply noted that Dramse
“has attorneys involved and that she is settling and they are offering her LTD benefits if it is

                                               3
                                        No. 07-10287

       In May 2003, Dramse filed a claim with Aetna seeking short-term and
long-term disability benefits based on both alleged physical and mental
ailments. On May 7, 2003, Aetna denied Dramse any benefits after August 20,
2000, but gave her sixty days to appeal the denial. Dramse appealed the
decision and submitted additional medical records. On August 27, 2003, Aetna
reversed its decision in part, granting Dramse short-term disability benefits for
the period from May 10 through November 7, 2000. On the other hand, Aetna
denied Dramse’s claim for long-term disability benefits because it concluded that
Dramse was not totally and continuously disabled as of November 8, 2000.
Although there was sufficient evidence to prove that Dramse could not perform
her customary job, Aetna determined there was insufficient evidence to conclude
that she could not perform any occupation, including part-time work. On
February 17, 2004, Dramse appealed the denial of long-term disability benefits
to Aetna. Aetna denied her appeal on May 5, 2004, but then reopened the case
for further consideration. On November 2, 2004, Aetna again denied the claim.
       While Aetna’s reconsideration was still pending, on August 26, 2004,
Dramse appealed Aetna’s decision to the Committee. In support of her claim,
she submitted her medical records, including contemporaneous medical notes
and reports, and some retrospective opinions from health care providers.
Although Dramse was previously awarded social security disability benefits on
October 14, 2000, due to “affective/mood disorders,” she did not submit the
medical records or findings underlying that award. The most relevant medical
records were the notes and letters of Dr. Gray, Mary Orndorff, a licensed master
social worker, and Dr. Martin Fisher.2


approved . . . .” According to the Plan’s briefs, the Plan was not itself a party to the lawsuit.
       2
         Dramse also submitted medical reports from Drs. Sharp, Holm, and Fulbright, but
these reports were made well after November 8, 2000, and they did not purport to discuss
Dramse’s medical condition on or around November 8, 2000. The Committee and the district
court disregarded these records. Dramse does not rely on them on appeal.

                                               4
                                 No. 07-10287

      Dr. Gray’s medical notes revealed that Dramse began seeing Dr. Gray
sometime in 1997 for a series of injuries, the most serious occurring when she
struck her head in 1999. Dr. Gray repeatedly stated in his notes that Dramse
suffered from fibromyalgia and other physical injuries that periodically limited
her ability to work. Yet he was also of the opinion throughout 2000 that Dramse
was recovering and he often encouraged her to return to work. For example, on
March 13, 2000, Dr. Gray stated that Dramse was “75%-85% recovered from her
injury[,]” and, on August 28, 2000, he noted that Dramse had made a “smooth
return to full [work] duty and [he was] encouraged she [would] be able to handle
decreasing frequency of visits [to him].” Dr. Gray also remarked that Dramse’s
emotional health was recovering and, on one occasion, he noted that Dramse
should return to work to help improve her mental health. None of his notes
indicated that Dramse should be restricted from working in or around November
of 2000.
      Dr. Gray’s contemporaneous letters were similar to his notes. In an
August 21, 2000, report to the Texas Workers’ Compensation Commission, Dr.
Gray stated that no further restrictions on Dramse’s ability to work were
required. On October 17, 2000, Dr. Gray provided a note to Delta to explain
Dramse’s repeated absences from work, wherein he stated:
            I just wanted to inform you of the circumstances
            surrounding [Dramse’s] absences. She has missed work
            because of multiple job-related injuries. She was
            probably returned to work too soon in an effort to
            protect her job. There were several episodes where she
            had a major flare up of pain and had to take off in order
            to recover.     She has also been diagnosed with
            [f]ibromyalgia, which has caused her a lot of pain. She
            has always been concerned with her job and her
            absences. At this point in time she continues to recover
            from her injuries and the fibromyalgia. She is
            stabilized and will probably not need to miss any more
            work.


                                       5
                                   No. 07-10287

        Nevertheless, Dr. Gray revised his opinion in 2003. In support of Dramse’s
claim for long-term disability benefits, he submitted a letter to Aetna
summarizing her past injuries and opined that Dramse should not have returned
to work in August of 2000. He concluded that:
              It is my opinion that she was unable to return to work
              . . . and that she should have been placed on Long-Term
              Disability until she could fully recover from her injuries
              or achieve a level of health that would enable her to
              return to work. In retrospect I believe she should have
              been on long term disability as long ago as 1999. I do
              feel her prognosis was and remains guarded primarily
              due to the underlying fibromyalgia that magnifies even
              the most minor injury.
        Meanwhile, the contemporaneous mental health information provided by
Ms. Orndorff, Dramse’s pyschotherapist, and Dr. Fisher, Dramse’s psychiatrist,
was ambiguous. In a November 29, 2000, letter, Ms. Orndorff wrote that
Dramse suffered from “grief, loss and depression, due to chronic pain that
originated with an on the job injury.” Without further elaboration, she stated
that “[s]ome of my clients have attained full disability whose symptoms are not
as severe as [Dramse’s.]” Yet Ms. Orndorff concluded that it was her “hope that
[Dramse] is reinstated as a Delta employee or offered disability.” (Emphasis
added). Furthermore, Dr. Fisher’s notes, which spanned from August 9, 1999,
through January 1, 2002, did not address whether Dramse was disabled. His
notes tracked Dramse’s mood, which was often depressed, her substance abuse,
and her fluctuations in weight, but not once did Dr. Fisher mention that
Dramse’s mental health precluded her from working or engaging in any daily
activities.
        On the other hand, as with the physical evidence, the retrospective
accounts of Dramse’s mental health unambiguously supported her claim for
disability. On April 15, 2003, Dr. Fisher submitted a letter to Aetna explaining
that:

                                          6
                                      No. 07-10287

              [Dramse] had been followed by me routinely in the
              summer and fall of 2000. She remains significantly
              depressed with severe . . . hopelessness, worthlessness,
              and guilt. She did sustain a suspension from work in
              11/2000 and then was subsequently terminated. . . . She
              remained very significantly depressed, including
              exhibiting bipolar depression, as well. She was not able
              to concentrate. She could not fulfill her work-related
              duties. She was essentially psychiatrically disabled
              during that period of time for most of the year of 2000.
Similarly, in an undated letter submitted in support of Dramse’s claim, Ms.
Orndorff stated that in 2000 Dramse “was extremely depressed.”
       Based on the procedures of the Plan, the Committee was initially
scheduled to consider Dramse’s appeal during its February 8, 2005, meeting.
Yet after that meeting, the Committee advised Dramse that it would postpone
its decision until the Committee’s May 5, 2005, meeting in order to obtain
additional information. The Committee stated that it was unable to reconcile
Dramse’s past medical records with the doctors’ retrospective opinions.
Accordingly, the Committee requested that Dramse attend an independent
psychiatric examination pursuant to § 4.05 of the benefits plan, which states:
              The Committee or its designees may request a medical
              examination of the Employee by a physician or
              physicians appointed on behalf of the Committee before
              determining disability and during the disability period
              to determine if the Employee remains disabled. Failure
              to cooperate with requests for medical examination
              made on behalf of the Committee shall be grounds for
              denying disability benefits hereunder.
By letter dated March 1, 2005, however, Dramse refused to attend the
independent medical examination, claiming that the request was untimely.3


       3
         Below, Dramse argued that she did not refuse to attend an independent medical
examination. Instead, Dramse asserted, she merely “attempted to enter a dialog with [the
Committee] to determine what reasoning would suggest that an IME physician, four years
later, would be in a better position to opine regarding [Dramse’s] disability on November 8,

                                             7
                                       No. 07-10287

       On March 15, 2005, Dramse filed the current lawsuit. Dramse sought: (1)
a declaration that she was not obligated to attend the independent medical
examination because it was not timely requested; (2) a declaration that the Plan
did not render a timely decision of her claim; (3) a declaration that she was
entitled to long-term disability benefits; (4) an award of prejudgment interest on
past due benefits; and (5) attorneys’ fees and costs. On April 20, 2005, the Plan
filed a motion to dismiss, arguing that Dramse’s claims were premature because
she failed to exhaust her administrative remedies under the Plan and ERISA.
As such, it asserted, Dramse was required to wait for the Committee to make a
final determination regarding benefits before filing suit.
       Before the district court ruled on the motion to dismiss, on May 10, 2005,
the Committee upheld the denial of Dramse’s long-term disability benefits. The
Committee’s decision was set forth on May 16, 2005, in a forty-four page letter
(the “Denial Letter”) itemizing the medical evidence submitted and setting forth
the rationale behind its decision. The Committee stated that the question before
it was whether the record showed that, as of November 8, 2000, the date her
short-term disability benefits expired, Dramse was disabled as a result of a
demonstrable injury or disease, including mental or nervous disorders, which
would continuously and totally prevent her from engaging in any occupation,
including part-time work. Based mostly on its interpretation of the information
submitted by Dr. Gray, Ms Orndorff, and Dr. Fisher, the Committee determined
that Dramse did not demonstrate that she was entitled to long-term disability
benefits. The Committee gave more weight to its interpretation of the health
care providers’ relatively contemporaneous notes and reports than to their
retrospective reports. Although the Committee agreed that Dramse was totally




2000, than her two mental health care practitioners.” This court does not need to resolve this
dispute because the characterization of Dramse’s position is immaterial.

                                              8
                                  No. 07-10287

and continuously disabled as of May 16, 2005, it concluded that she was not
disabled as of November 8, 2000.
      First, the Committee found insufficient evidence of physical disability. It
relied on the fact that Dr. Gray medically released Dramse to return to work on
August 21, 2000, without any restrictions, and his opinion on October 17, 2000,
that Dramse was “stabilized and [would] probably not need to miss any more
work.” The Committee also pointed out that while Dr. Gray excused Dramse
from work eight times between May and August 2000, he did not excuse her
from work once after September 2000. While Dr. Gray opined three years later
that Dramse “should have been placed on [l]ong-[t]erm [d]isability until she
could fully recover[,]” the Committee was uncertain whether Dr. Gray thought
Dramse was unable to perform any occupation whatsoever. Regardless, the
Committee gave Dr. Gray’s March 23, 2003, letter less weight because it was
written years after the fact and contradicted his contemporaneous notes.
      Second, the Committee determined that there was insufficient evidence of
mental disability. The Committee interpreted Ms. Orndorff’s November 29,
2000, letter expressing the “hope” that Dramse would be reinstated as a Delta
employee as a medical determination that Dramse was capable of working.
Furthermore, the Committee noted that Dr. Fisher’s medical notes did not
indicate that Dramse was totally disabled, nor did Dr. Fisher restrict her life or
work activities in any manner. By contrast, the Committee found Dr. Fisher’s
April 3, 2003, opinion that Dramse was “essentially psychiatrically disabled
during . . . most of the year of 2000” less than probative because it was
unsupported by his contemporaneous notes. Finally, the Committee gave no
weight to Dramse’s entitlement to social security disability because a claimant
need not show an inability to engage in any occupation whatsoever in order to
qualify for benefits.



                                        9
                                  No. 07-10287

        In light of the Committee’s decision, on June 2, 2005, the district court
denied the Plan’s motion to dismiss for failure to exhaust administrative
remedies. On July 1, 2005, the district court ordered the parties to meet to
consider the nature of the case and the possibility of a joint resolution. In
response, on August 11, 2005, the parties filed a joint report that narrowed the
issues. Dramse agreed that she would not argue that she should be awarded
total disability benefits because the Plan reviewed her claim in an untimely
manner. In return, the Plan agreed that it would not argue that Dramse waived
her right to seek benefits by refusing to attend the independent medical
examination. Finally, the parties agreed to restrict the record to the evidence
presented to the Committee before the Denial Letter was issued on May 16,
2005.
        On February 16, 2006, the parties filed cross motions for summary
judgment. Dramse argued that the she was entitled to long-term disability
benefits because the Committee: (1) abused its discretion when interpreting the
benefits plan to require that a claimant be unable to perform any occupation
whatsoever, including part-time work; (2) failed to meet an extra-ERISA
contractual duty to investigate Dramse’s claim; (3) failed to produce a complete
copy of the administrative record; (4) failed to consult with medical and
healthcare practitioners; (5) failed to obtain a vocational analysis to evaluate
Dramse’s ability to work; and (6) failed to support the denial of benefits with
substantial evidence. The Plan, on the other hand, argued that the Committee’s
decision should be affirmed because Dramse bore the burden of proving that she
was entitled to long-term disability benefits, and she failed to produce sufficient
evidence to support her claim.        Moreover, the Plan asserted that the
contemporaneous medical records constituted substantial evidence in support
of its determination that Dramse was not totally and continuously disabled as
of November 8, 2000.


                                        10
                                     No. 07-10287

       On August 16, 2006, the district court granted Dramse’s motion for
summary judgment and denied the Plan’s cross-motion for summary judgment.
As a preliminary matter, the district court held that the Committee’s
construction of the benefit plan was legally correct. For Dramse to be eligible for
long-term disability benefits, it found, she must “(1) [have] been totally and
continuously prevented from engaging in any occupation whatsoever for
compensation or profit, including part-time work, (2) upon expiration of [her]
short term disability period—November 8, 2000.” The district court stated that
it could only uphold the Committee’s determination if there was substantial
evidence in the record that Dramse was able to work as of November 8, 2000,
“regardless of whether [Dramse] has supported her entitlement to benefits with
record evidence.”
       The district court found that there was some record evidence supporting
the Committee’s determination that Dramse was physically able to work as of
November 8, 2000. However, the district court held that the Plan abused its
discretion because there was no evidence that Dramse was psychologically able
to work as of November 8, 2000.4 First, the district court stated, Dr. Gray’s
medical reports were not probative because he was Dramse’s chiropractor. He
was not an expert of mental health. Second, the district court found that Dr.
Fisher’s medical reports did not support the Committee’s conclusion because he
specifically opined in his April 15, 2003, letter that Dramse was “essentially
psychiatrically disabled.” It was irrelevant to the district court that Dr. Fisher
failed to note in his contemporaneous records that Dramse was unable to work
because there was nothing to suggest that Dr. Fisher’s usual practice was to
record such information. Third, the district court held that Ms. Orndorff’s


       4
        Because the district court found that the Committee’s decision was not supported by
substantial evidence, the district court did not consider Dramse’s alternative arguments.
Dramse has not sought to rely on them on appeal.

                                            11
                                 No. 07-10287

November 29, 2000, statement—that she hoped Dramse would be reinstated as
a Delta employee or offered disability benefits—was unclear and not probative.
The district court reasoned that the statement did not reveal whether Ms.
Orndorff believed that Dramse was able to work at that time, hoped that she
would be reinstated when her condition improved, or something else altogether.
In short, the district court held that the Committee’s decision was not supported
by substantial evidence.
      In its order granting Dramse summary judgment, the district court
ordered the parties to file briefs concerning the remedies issue. The parties
stipulated that Dramse should receive $1,137.79 per month if she were entitled
to long-term disability benefits. Accordingly, on January 30, 2007,the district
court awarded Dramse $31,165.43 in past due long-term disability benefits and
pre-judgment interest for the period of November 8, 2000, to August 27, 2002.
On February 21, 2007, the district court entered a final judgment awarding
Dramse $65,000 in attorneys’ fees.
      On February 28, 2007, the Plan filed a timely notice of appeal. The Plan
challenges the district court’s eligibility ruling on two fronts. First, the Plan
argues that the district court improperly imposed a per se duty upon the
Committee to investigate Dramse’s claim regardless of whether Dramse made
an initial demonstration of entitlement to benefits. Relatedly, the Plan asserts
that this alleged duty to investigate improperly shifted the burden of proof from
Dramse to the Committee. Second, the Plan argues that although there was
substantial evidence in the record supporting its conclusion that Dramse was
able to work as of November 8, 2000, the district court substituted its own
reasonable judgment for the reasonable judgment of the Committee. It asserts
that the district court failed to afford the plan administrator proper deference
by reinterpreting and re-weighing the evidence.



                                       12
                                  No. 07-10287

      In response, Dramse “relies heavily on the district court’s analysis of
whether there is substantial evidence in the claim record as [she] believes it is
the correct analysis.” Rather than imposing a per se duty to investigate, Dramse
argues that the district court properly held the Plan to its burden of proof.
Dramse contends that the district court neither weighed the evidence nor
resolved any conflicting facts. Instead, Dramse asserts, the district court rightly
found that there was absolutely no evidence in the record that Dramse was able
to work on November 8, 2000.
                                        II.
      “Standard summary judgment rules control in ERISA cases.” Vercher v.
Alexander & Alexander Inc., 379 F.3d 222, 225 (5th Cir. 2004) (citing Barhan v.
Ry-Ron Inc., 121 F.3d 198, 202 (5th Cir. 1997)). The court reviews a grant of
summary judgment de novo, viewing all evidence in the light most favorable to
the nonmoving party and drawing all reasonable inferences in that party’s favor.
See Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000).
“Summary judgment is proper when the evidence reflects no genuine issues of
material fact and the non-movant is entitled to judgment as a matter of law.”
Id. (citing FED. R. CIV. P. 56(c)). “A genuine issue of material fact exists ‘if the
evidence is such that a reasonable jury could return a verdict for the non-moving
party.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
      A plan administrator’s factual determinations are only reviewed for an
abuse of discretion. Chacko v. Sabre, Inc., 473 F.3d 604, 610 (5th Cir. 2006)
(citations omitted); Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d
211, 213 (5th Cir. 1999); Schadler v. Anthem Life Ins. Co., 147 F.3d 388, 395 (5th
Cir. 1998).   Abuse of discretion review is synonymous with arbitrary and
capricious review in the ERISA context. See Lain v. UNUM Life Ins. Co. of Am.,
279 F.3d 337, 342 (5th Cir. 2002) (citations omitted). “When reviewing for
arbitrary and capricious actions resulting in an abuse of discretion, we affirm an

                                        13
                                 No. 07-10287

administrator’s decision if it is supported by substantial evidence.” Meditrust
Fin. Servs. Corp., 168 F.3d at 215. “Substantial evidence is ‘more than a
scintilla, less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Ellis v.
Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2005) (citation
omitted).
      Elsewhere, we have stated that “[a] decision is arbitrary when it is made
without a rational connection between the known facts and the decision or
between the found facts and the evidence.” Jenkins v. Cleco Power, LLC, 487
F.3d 309, 314 (5th Cir. 2007) (internal quotation marks and citation omitted).
And we have emphasized that the district court should “only assure that the
administrator’s    decision    fall[s]   somewhere     on   a   continuum      of
reasonableness—even if on the low end.” Vega v. Nat’l Life Ins. Servs., Inc., 188
F.3d 287, 297 (5th Cir. 1999) (en banc). A district court may not engage in de
novo weighing of the evidence. See Sweatman v. Commercial Union Ins. Co., 39
F.3d 594, 601-02 (5th Cir. 1994). Even if the plaintiff’s claim is supported by
record evidence, the reviewing court must defer to the administrator’s decision
if the plan administrator’s denial is also supported by substantial evidence.
Ellis, 394 F.3d at 273 (“We are aware of no law that requires a district court to
rule in favor of an ERISA plaintiff merely because he has supported his claim
with substantial evidence, or even with a preponderance.”).
      Although we apply this highly deferential standard of review, we have also
stated that an administrator’s decision to deny benefits must be based on record
evidence. See, Lain, 279 F.3d at 342 (citation omitted). In Vega, we explained
that this requirement does not create a per se duty to reasonably investigate a
claim for benefits. 188 F.3d at 298. The court reasoned that:
            [t]here is no justifiable basis for placing the burden
            solely on the administrator to generate evidence


                                         14
                                  No. 07-10287

            relevant to deciding the claim, which may or may not be
            available to it, or which may be more readily available
            to the claimant.       If the claimant has relevant
            information in his control, it is not only inappropriate
            but inefficient to require the administrator to obtain
            that information in the absence of the claimant’s active
            cooperation.
Id. Of course, the lack of a per se rule does not excuse the administrator
entirely. While “the administrator has no duty to contemplate arguments that
could be made by the claimant, we do expect the administrator’s decision to be
based on evidence, even if disputable, that clearly supports the basis for its
denial.” Id. at 299.
      In the instant case, the Plan argues that the district court imposed a per
se duty on the Committee to investigate her claim because the district court
stated that if the Committee’s denial was not supported by substantial evidence,
it would find for Dramse “regardless of whether [Dramse] . . . supported her
entitlement to benefits with record evidence.” The Plan reasons that if a plan
administrator must produce evidence in response to unsupported claims, it
follows that a plan administrator will, in practice, be forced to investigate the
most groundless claims. The Plan also notes that an ERISA claimant has the
initial burden of demonstrating her entitlement to benefits. Perdue v. Burger
King Corp., 7 F.3d 1251, 1254 n.9 (5th Cir. 1993) (citations omitted); see also
Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 658 (8th Cir. 1992) (en banc);
Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998)
(citation omitted). But if an employee is relieved from having to submit evidence
to support the employee’s claim for disability benefits, the burden of production
and persuasion would shift to the Plan. Finally, the Plan asserts that the
district court’s standard eradicates the deference due to a plan administrator in
the least compelling cases—those where a claimant cannot offer any evidence of
entitlement to benefits at all.

                                        15
                                   No. 07-10287

      We agree with the Plan. The absence of evidence supporting a claim for
disability is sometimes, in and of itself, compelling proof that a claimant is not
disabled. See Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329, 335
(5th Cir. 2001) (upholding a denial of benefits where the claimant provided no
documentation to support the inference that his condition worsened after being
placed on unassigned status); Aboul-Fetouh v. Employee Benefits Comm., 245
F.3d 465, 472-73 (5th Cir. 2001) (upholding a denial of benefits where there was
no evidence supporting the plaintiff’s claim of total disability); Sweatman, 39
F.3d at 602 (upholding a plan administrator’s decision where the claimants own
medical records did not support his permanent disability claim); Pierre v. Conn.
Gen. Life Ins. Co./Life Ins. Co. of N. Am., 932 F.2d 1552, 1563 (5th Cir. 1991)
(holding that the plan administrator made a reasonable determination based on
the evidence before it after the claimant declined to produce additional
information that may have supported her claim). If we were to hold otherwise,
we would, in effect, be presuming that a claimant is entitled to disability benefits
unless a plan administrator proved that the claimant was not disabled.
      Although our above analysis is necessary to establish the proper standard
for review of the record in this case, it does not resolve the case. Dramse
correctly notes that the district court did not simply find a lack of evidence in the
record that Dramse was able to work on November 8, 2000. The district court
held that the Plan “has not cited to any record evidence that supports a finding
that Plaintiff was not psychologically unable to work as of November 8, 2000,
and there is significant contrary evidence.” (Emphasis added). Accordingly,
Dramse argues that the district court’s decision was proper because the only
evidence concerning her psychological ability to work as of November 8, 2000,
was Dr. Fisher’s opinion that she was “essentially psychiatrically disabled
during . . . most of the year of 2000.” Moreover, she asserts that the Committee’s
fact-finding was arbitrary and capricious because the Committee “cherry-

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picked” the evidence it relied upon and “ascrib[ed] only one conclusion to
statements which are indicative of two or more possibilities.”
      We disagree. Unfortunately, as a result of the delay in filing the claim,
there is little evidence concerning Dramse’s mental health on or around
November 8, 2000. Yet all of the contemporaneous evidence that was submitted
could rationally be construed to support a denial of benefits. Thus, Ms. Orndorff,
Dramse’s psychotherapist, expressed her “hope” on November 29, 2000, that
Delta would reinstate her to her previous position. A reasonable fact-finder
could conclude from this statement that at least one of Dramse’s mental health
care providers believed that Dramse could work during the relevant time period.
Similarly, Dr. Fisher, Dramse’s psychiatrist, never indicated in his medical notes
that Dramse was disabled by her symptoms in any way. Nor did he indicate that
she should be restricted from working. The lack of any mental health related
restrictions is more compelling in light of the fact that Dramse was previously
awarded short-term disability benefits and was periodically excused from work
for physical ailments. A reasonable fact-finder could infer that she did not seek
disability benefits for psychological problems at that time because her
psychiatrist did not believe her mental health problems precluded her from
working.
      The district court, of course, viewed the same evidence differently. The
district court was not persuaded that Dr. Fisher’s failure to note restrictions of
Dramse’s work or life activities was indicative of her ability to work because it
was unsure whether it was Dr. Fisher’s usual practice to record such
observations. While this, too, is a reasonable interpretation, the district court
simply chose a different reasonable interpretation than the reasonable
interpretation chosen by the Committee. Similarly, the district court refused to
credit Ms. Orndorff’s November 29, 2000, letter because it was unclear. Dramse
makes a similar point on appeal, protesting that the Committee “ascrib[ed] only


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one conclusion to [a] statement which [is] indicative of two or more possibilities.”
But that is exactly why the Committee’s decision cannot be overturned. Once
there is more than one possible conclusion that can be reached from the record
evidence, the Plan’s selection of a competing possibility must be affirmed.
Vercher, 379 F.3d at 231-32. In short, while both the district court’s and the
Committee’s interpretations of the evidence seem reasonable, under substantial
evidence review, choosing one of two or more reasonable interpretations does not
constitute an abuse of discretion. See id.
      Lastly, it must be emphasized that it is Dramse, not the Plan, that bore
the burden of proof. The only evidence that she submitted to support long-term
disability as of November 8, 2000, was the retrospective letter of Dr. Fisher,
stating that she was “essentially psychiatrically disabled during . . . most of the
year of 2000.” This conclusion, however, does not address whether Dramse was
unable to engage “in any occupation whatsoever for compensation or profit,
including part-time work.” Moreover, the Plan concluded that it was less than
reliable because it was secured in aid of Dramse’s claim and conflicted with Dr.
Fisher’s past records. This conclusion is not unreasonable. See Gooden, 250
F.3d at 333-34 (“While it is true that the record contains a letter from Dr.
Causey stating that Gooden was disabled, this letter does not undermine
Provident’s decision, as it was written after Gooden learned he was being
terminated, and was unaccompanied by medical evidence indicating that
Gooden’s condition changed since the last time Dr. Causey had seen Gooden.”).
                                        III.
      In conclusion, we VACATE the district court’s judgment and REMAND
for further proceedings consistent with this opinion. Dramse shall bear the
costs of this appeal.




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