                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-1743



GENEESE MCKELDIN,

                                               Plaintiff - Appellant,

          versus


RELIANCE STANDARD LIFE INSURANCE COMPANY,

                                                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:05-cv-02563-JFM)


Submitted:   September 17, 2007            Decided:   October 17, 2007


Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Samuel G. WILSON, United States District Judge for the Western
District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


Eric Wexler, MCCHESNEY & DALE, P.C., Bowie, Maryland, for
Appellant.     Joshua Bachrach, RAWLE & HENDERSON, L.L.P.,
Philadelphia, Pennsylvania, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

        Plaintiff Geneese McKeldin (McKeldin), a registered nurse, has

brought this civil action against Reliance Standard Life Insurance

Company     (Reliance),   claiming    wrongful   denial    of    long-term

disability benefits in violation of the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq.                  The

district court granted Reliance’s motion for summary judgment.           We

affirm on the reasoning of the district court.



                                     I.

     Reliance is the insurer and claims review fiduciary of the

group long-term disability plan (the Plan) under which McKeldin is

seeking benefits as a plan participant. The parties agree the Plan

is governed by ERISA.

     On January 4, 2001, McKeldin was hospitalized with complaints

of left calf pain and recurrent deep vein thrombosis (DVT), a

problem that McKeldin had experienced for approximately twenty

years. The hospital admission report also noted that McKeldin “has

a   history    of   fibromyalgia     and   fatigue   and   has   been   on

antidepressants and anticipated work leave because of this.” (J.A.

776).

     At the time of McKeldin’s hospitalization, she worked for Marc

L. Chaiken, M.D., P.A., as a nurse manager, which position required

her to be able to stand for the entire eight-hour work day.


                                   - 2 -
Standing for this long caused McKeldin to suffer pain and swelling

in her left calf.   Following her hospitalization, McKeldin did not

work for the next three months.         In addition to her physical

ailments, McKeldin suffered from depression.

     On April 3, 2001, McKeldin applied for long-term disability

benefits under the Plan’s total disability provision, claiming that

she was incapable of working due to DVT, as well as fibromyalgia

and chronic fatigue.     Relevant to the present appeal, the Plan

provides   long-term   disability   benefits   when   a   claimant   can

demonstrate total disability, defined as follows:

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

           (1) during the Elimination Period, an Insured
           cannot perform each and every material duty of
           his/her regular occupation; and

           (2) for the first 36 months for which a Monthly
           Benefit is payable, an Insured cannot perform the
           material duties of his/her regular occupation;

                (a) “Partially Disabled” and “Partial
                Disability” mean that as a result of an
                Injury or Sickness an Insured is capable
                of performing the material duties of
                his/her regular occupation on a part-time
                basis or some of the material duties on a
                full-time basis.     An Insured who is
                Partially Disabled will be considered
                Totally Disabled, except during the
                Elimination Period; and

           (3) after a Monthly Benefit has been paid for 36
           months, an Insured cannot perform each and every
           material duty of any occupation. Any occupation is
           one that the Insured’s education, training or
           experience will reasonably allow.


                                - 3 -
(J.A. 475).

     Based    upon   the   information    submitted,    Reliance   approved

McKeldin’s application for long-term disability benefits and began

paying such benefits on April 5, 2001.          Of relevance on appeal,

Reliance paid McKeldin long-term disability benefits for thirty-six

months.    The record indicates that for a large portion of this

time, McKeldin worked two part-time jobs.        One job required her to

administer flu shots to hospital employees. The other job required

her to perform victim sexual-assault examinations as a forensic

nurse.    For both jobs, McKeldin stated that she could only work

three to four hours at a time and that each shift required her to

recuperate for between eighteen and thirty-six hours.

     Reliance notified McKeldin that she did not qualify for long-

term disability benefits under the Plan beyond thirty-six months

because she could perform some material duties of occupations that

her education, training or experience would reasonably allow.

Reliance also asserted that benefits were properly discontinued

under a twenty-four month limitation on the receipt of long-term

disability benefits for total disability caused by or contributed

to by mental disorders.

     After    exhausting    her   administrative       remedies,   McKeldin

initiated this ERISA action, pursuant to 29 U.S.C. § 1132(a), to

challenge Reliance’s denial of her claim for long-term disability

benefits beyond thirty-six months.           After Reliance moved for


                                  - 4 -
summary judgment, McKeldin moved to take discovery in addition to

the administrative record and moved for summary judgment herself.

The district court subsequently granted Reliance’s motion for

summary judgment, denied McKeldin’s motion for summary judgment,

and denied her motion to take additional discovery on the ground

that case law required that judicial review of Reliance’s claim

denial is limited to the administrative record.

       In its Memorandum Opinion, the district court noted that

Reliance had asserted two independent bases for its decision to

deny   McKeldin   long-term      disability   benefits    beyond      thirty-six

months:      (1) “that despite her disability she is capable of

performing    some   of    the    material    duties     of   other     suitable

occupations,” and (2) “that mental disorders have contributed to

her disability.”     (J.A. 115).     Because the district court ruled in

favor of Reliance with respect to the first basis, it expressly did

not address the second basis for its denial.

       The crux of the district court’s analysis in ruling in favor

of Reliance is that when the phrase “each and every,” as found in

subparagraph three of the Plan’s definition of “Totally Disabled,”

is read in conjunction with the other definitions of “Totally

Disabled”    in   the     two    preceding    subparagraphs,    “it     becomes

unmistakably clear that,” (J.A. 116), the phrase “each and every,”

as found in subparagraph three, means that an insured would be

considered totally disabled only if she was unable to perform all


                                     - 5 -
material duties of any occupation that the insured’s education,

training or experience will reasonably allow.               In reaching this

holding, the district court relied heavily upon our decision in

Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264 (4th

Cir.    2002).       In   Gallagher,    we    read    language    materially

indistinguishable from subparagraph three’s definition of totally

disabled as unambiguously providing that an employee is totally

disabled if he is unable to perform all duties of his regular

occupation.      Id. at 270.

       The district court went on to hold that Reliance did not abuse

its discretion in applying this plain language reading of the Plan

to deny McKeldin long-term disability benefits beyond thirty-six

months.     Specifically, the district court held that even putting

aside the physician’s report by Dr. William Hauptman favorable to

Reliance, which report McKeldin challenged as the biased report of

a hired gun, other evidence in the administrative record including

two other physician reports, the report of a vocational expert, and

the denial of McKeldin’s claim for disability benefits from the

Social Security Administration, provided a credible and proper

basis for Reliance’s conclusion that McKeldin was capable of

performing at least one of the material duties of a suitable

occupation.      Notably, the district court expressly observed that

McKeldin never even attempted to refute the respective conclusions

of   Drs.   Robert   Frieman   and   Scott   Brown,   the   Social   Security


                                     - 6 -
Administration, and the vocational expert that she was capable of

performing at least one of the material duties of a suitable

occupation.

       McKeldin subsequently moved to amend the judgment on the basis

that   the   district   court    allegedly   misread   the   relevant   Plan

language.     The district court denied the motion and this timely

appeal followed.



                                     II.

       We review the district court’s grant of summary judgment in

favor of Reliance de novo, applying the same standards as the

district court employed.        Evans v. Metropolitan Life Ins. Co., 358

F.3d 307, 310 (4th Cir. 2004).         Because the Plan gives Reliance

discretion to determine McKeldin’s eligibility for Plan benefits,

and since Reliance is also the Plan’s insurer, we review Reliance’s

decision to deny McKeldin long-term disability benefits beyond

thirty-six months under the modified abuse of discretion standard.

Id. at 311.    Under the modified abuse of discretion standard, the

denial of benefits will be upheld if the decision is reasonable,

Carolina Care Plan Inc. v. McKenzie, 467 F.3d 383, 387 (4th Cir.

2006), and Reliance’s conflict of interest “must be weighed as a

factor in determining whether an abuse of discretion occurred.”

Evans, 358 F.3d 311.




                                    - 7 -
      Moreover, when, as here, an ERISA plan vests discretion in the

decision-maker, who also insures the plan, reasonable exercise of

that discretion requires that the decision-maker/insurer “construe

plan ambiguities against the party who drafted the plan.” Carolina

Care Plan, Inc. v. McKenzie, 467 F.3d 383, 389 (4th Cir. 2006).

The   automatic   construction   of   ambiguous    language      against   the

drafter is known as the doctrine of contra proferentem.             Id.    In

Carolina Care Plan, we carefully explained that application of the

doctrine of contra proferentem in the ERISA plan context does not

deprive a decision-maker/insurer of its discretion under an ERISA

plan.    Id.   Rather, we explained, when a decision-maker/insurer

“applies un ambiguous plan terms to the facts of a particular

claim,   courts   will   defer   to   every     judgment   the    [decision-

maker/insurer] makes that is supported by substantial evidence and

a reasoned decisionmaking process.”       Id.



                                  III.

      The Plan’s definition of “Totally Disabled” is at the heart of

the dispute in this case.         McKeldin argues that the language

stating “an Insured cannot perform each and every material duty of

any occupation” in subparagraph three of the Plan’s definition of

“Totally Disabled” is ambiguous, and therefore, should be construed

in her favor. Reliance defends the district court’s plain-language




                                  - 8 -
reading of the language at issue in subparagraph three by relying

on our decision in Gallagher, 305 F.3d at 270.

        We hold the district court correctly determined that the

language stating “an Insured cannot perform each and every material

duty    of   any   occupation”     in    subparagraph    three     of     the   Plan’s

definition of “Totally Disabled” unambiguously means that a Plan

participant does not qualify for long-term disability benefits

beyond thirty-six months unless such participant is unable to

perform all of the material duties of any occupation that such

participant’s education, training or experience will reasonably

allow.       In so holding, we fully agree with the district court’s

plain-language analysis of the Plan language at issue.                          In the

words of the district court:

       While partial disability is sufficient to establish
       eligibility for receipt of total disability benefits
       during the 36-month period, it does not suffice to
       qualify an insured as “totally disabled” as defined in
       subparagraph one for the Elimination Period.    Thus, a
       fortiori, the phrase “each and every,” at least as used
       in subparagraph one, must mean that an insured who can
       perform one or more of the material duties of her job,
       but not all, is not “totally disabled.”

            Because “it is logical to assume that the words were
       intended to convey the same meaning both times they were
       used,” the court adopts the same interpretation of “each
       and every” for subparagraph three.

(J.A. 117-18) (internal quotation marks, citations, and alteration

marks    omitted).         In   short,    when   the    language     at    issue    in

subparagraph       three   is   read     in   context   with   the      language    of

subparagraphs one and two, the language at issue in subparagraph

                                         - 9 -
three is only reasonably susceptible of the district court’s

interpretation.

     Reliance is also correct that our decision in Gallagher

supports   the    district   court’s   plain-language    analysis.    In

Gallagher, we read language identical to subparagraph three’s

definition of totally disabled as unambiguously providing that an

employee is totally disabled if he is unable to perform all the

duties of his regular occupation.         Id. at 270.    This reading is

wholly consistent with reading the “each and every material duty”

language of subparagraph three as unambiguously providing that in

order to qualify for long-term disability benefits beyond the

thirty-six month period, the plan participant applying for such

benefits must be unable to perform all of the material duties of

any occupation that such plan participant’s education, training or

experience will reasonably allow.

     We also agree with the district court’s holding that even

putting aside Dr. Hauptman’s report favorable to Reliance, other

evidence in the administrative record including two other physician

reports, the report of a vocational expert, and the denial of

McKeldin’s claim for disability benefits from the Social Security

Administration, provided a credible and proper basis for Reliance’s

conclusion that McKeldin was capable of performing at least one of

the material duties of a suitable occupation.           For example, the

record contains the assessment of a vocational expert who concluded


                                 - 10 -
that McKeldin could perform some of the material duties of various

occupations that matched her education and training, for example,

Holter Scanning Technician and Optometric Assistant, and that she

could perform all of the material duties of a Cardiac Monitor

Technician.      Notably, McKeldin points us to nothing in the record

which    contradicts    these    conclusions      of    the     vocational     expert

despite    the   fact   that    she   bears    the     burden    of   proof.     See

Gallagher, 305 F.3d at 270 (ERISA plan participant bears burden of

proof that he qualifies for long-term disability benefits).

     In   sum,    because   substantial        evidence    supports     Reliance’s

denial of McKeldin’s claim for long-term disability benefits based

upon its straightforward application of the unambiguous terms of

the Plan, we affirm on the reasoning of the district court.1




     1
      Given our disposition, we do not reach Reliance’s alternative
argument that, even if the language at issue in subparagraph three
is ambiguous, it still wins because the Plan expressly gave it the
discretionary authority to resolve ambiguities in the Plan.

                                      - 11 -
     We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and oral argument would not aid the decisional process.2



                                                          AFFIRMED




     2
      Finally, we note that McKeldin argues the district court
committed reversible error by denying her request for discovery of
evidence of Reliance’s conduct in handling her claim that is not in
the claim file.     She speculates that such evidence has the
potential to support her allegation that Reliance’s denial of her
claim for long-term disability benefits beyond thirty-six months
was simply the result of its conflict of interest. Her argument is
mooted by the fact that the district court’s analysis already took
into account Reliance’s conflict of interest as the Plan’s
decision-maker/insurer.

                              - 12 -
