                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      July 27, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court

 J. CHARLES GROSVENOR,

          Plaintiff - Appellant,
                                                       No. 05-4061
 v.                                              (D.C. No. 03-CV -897-DS)
                                                        (D. Utah)
 Q W E ST C OM M U N IC ATIO N S
 INTER NATIONAL; QW EST
 D ISA BILITY PLA N ,

          Defendants - Appellees.



                              OR D ER AND JUDGM ENT *


Before KELLY, SE YM OU R, and HA RTZ, Circuit Judges.


      Plaintiff-Appellant J. Charles G rosvenor appeals from the district court’s

grant of summary judgment in favor of Q west Corporation and the Q west

Occupational Short Term Disability Plan (the “Plan”), collectively (“Qwest”)

arising out of M r. Grosvenor’s claim for disability benefits under the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461.

W e exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
                                    Background

      M r. Grosvenor was an employee of Qwest Corporation as a Team Leader in

the W holesale Provisioning Department. His responsibilities included frequent

travel and a wide variety of managerial, training and administrative

responsibilities. M r. Grosvenor was a participant in the Plan, a self funded

employee welfare benefit plan, governed by ERISA . Qwest was the sponsor of

the Plan, which designated the Qwest Employee Benefits Committee (“EBC”) as

the Plan administrator. The EBC had discretion under the Plan to grant or deny

benefits. The EBC delegated its duties as administrator to the Health Services

Group. Qwest employed Catherine Parks, a registered nurse, to review short term

disability (“STD”) benefit claims. She was not a corporate officer, and her

performance evaluations were not tied to denial of claims.

      In September 1999, M r. Grosvenor began to suffer from loss of balance,

tinnitus, headaches and vertigo. M r. Grosvenor began to experience memory loss

and a decreased ability to concentrate. H e continued to work at Qwest until

October 23, 2000. At that point, he concluded that he was no longer able to

continue until his symptoms could be brought under control.

      Under the Plan, participants are eligible for STD benefits if they are

“Disabled” and if they fulfill certain requirements under Section 4.1 of the Plan.

The Plan defines “Disabled”:

      “Disabled” or “Disability” means the circumstance when a Participant

                                         -2-
      is unable to perform the normal duties of his regular job or other job
      duties in a modified capacity due to an injury or illness which is
      supported by objective medical documentation.

Aplt. App. at 32. The Plan does not definite “objective medical documentation,

but defines “objective findings” as “observable, measurable and reproducible

findings of symptoms, such as, but not limited to, x-ray reports, elevated blood

pressure readings, and lab test results.” Id. at 34.

Section 4.1 of the Plan outlines the requirements for qualification for benefits:

      4.1 Eligibility for Benefits. Participants are eligible for STD benefit
      payments under the Plan if they are Disabled and they fulfill all of the
      follow ing requirements and obligations:
      . . . (e) Provide documentation supporting total D isability (or Disability
      requiring reduced hours) to Health Services within a reasonable period
      not to exceed three weeks from the first day of absence, and after each
      follow -up visit with a Provider (or as often as requested by Health
      Services). Documentation must be from the original dated m edical
      record and support the claim of total D isability (or partial D isability
      requiring reduced hours, if appropriate). Such documentation shall
      include: the patient’s subjective complaints or “story of illness”; the
      objective, measurable or reproducible findings from physical
      examination and supporting laboratory or diagnostic tests; assessment
      or diagnostic formulation; and a plan for treatment or management of
      the problem. The documentation must be legible and sufficient to allow
      another trained medical professional to review the case, and see how the
      original Provider came to his determination and decisions.

Aplt. A pp. at 39-40.

      M s. Parks communicated with M r. Grosvenor regarding his illness and the

terms of the Plan and provided him with an STD packet. This packet included a

form for his physician to complete. The form indicated the Plan’s definition of

disability and requirement for objective medical documentation. In N ovember,

                                          -3-
2000, M r. Grosvenor’s primary care provider, Dr. Taylor, identified his condition

as “viral labyrinthitis w ith residual nerve damage” and wrote “unknown” as to

whether M r. Grosvenor could return to w ork. Id. at 87-88. M r. Grosvenor also

submitted office visit notes, and the results of his O ctober 5, 2000 M agnetic

Resonance Imaging (“M RI”), w hich was normal. Id. at 92.

      M s. Parks also received medical records from M r. Grosvenor’s neurologist,

Dr. Arif C howdhury. In an October 26, 2000 letter to Dr. Taylor, Dr. Chowdhury

observed that M r. Grosvenor’s “sinus x-rays, CT scans and M RI of the brain”

were “unrevealing except for mild to moderate sinusitis which has been treated

with antibiotics.” Id. at 94. Dr. Chowdhury reported that M r. Grosvenor had

“reproducible dizziness with neck extension and mild w eakness of the biceps,

deltoid and shoulder abduction” and unsteady gait in heel-to-toe walk. Id. at 95.

Dr. Chowdhury performed an M RI of the cervical spine, and observed “mild

broad-based bulging at C3-4 and centrally and biased to the left bulging at C4-5”

but the doctor was unsure whether the bulging was a contributing factor to the

dizziness. In December 2000, Dr. Leland Johnson submitted a Disability M edical

Certificate diagnosing M r. Grosvenor with chronic dysequilibrium but providing

no information as to his ability to return to work.

      W ith that information, M s. Parks informed M r. Grosvenor by letter dated

January 16, 2001, that she denied his STD benefits claim because he failed to

provide sufficient objective medical documentation to establish disability. M r.

                                         -4-
Grosvenor subsequently submitted additional information to M s. Parks, including:

(1) an evaluation report from the IHC Hearing and Balance Center reporting that

M r. Grosvenor had a very mild vestibular-somatosensory dysfunction pattern,

which indicated he “may occasionally be unable to maintain his balance”. The

report observed that this was the sole abnormality and that M r. Grosvenor’s motor

control and adaptation tests were within normal limits, id. at 108-109, and (2) a

Disability M edical Certificate from Dr. W orthington, a Ph.D. with the University

of Utah Department of Otolaryngology that diagnosed M r. Grosvenor with mild

vestibular-somatosensory dysfunction and concluded that he could return to w ork

with the restriction that he not be on heights, ladders or platforms. Id. at 111-

112.

       Dr. Anne Hazelton examined M r. Grosvenor’s file and concurred with the

denial of benefits, finding that he was not sufficiently impaired, in light of only

one abnormality with mild restrictions not relevant to his work. Id. at 114-116.

Both Dr. Chowdhury and Dr. Taylor wrote letters to the Secretary of Q west

Appellate Reviews on M r. Grosvenor’s behalf. Both suggested that M r.

Grosvenor posed a threat of injury to himself and his co-workers due to his

trouble balancing, and recommended he be placed on STD. M r. Grosvenor

formally appealed his denial of benefits by letter dated M arch 5, 2001 pursuant to

the Plan’s appellate provisions. Dr. Barry Kern, Appellate Reviewer, upheld the

denial of M r. Grosvenor’s claim for STD benefits, concluding that the symptoms

                                         -5-
of dizziness and headache lacked an exact etiology after extensive diagnostic

studies and the findings were not consistent with continued disability. By letter

dated M ay 31, 2001, M r. Grosvenor was informed that the denial of benefits was

upheld on appeal because the evidence did not support a finding of disability.

M r. Grosvenor continued to submit further information, which Qwest declined to

consider.

      M r. Grosvenor filed suit in October 2003 alleging a wrongful denial of STD

benefits. The parties filed cross motions for summary judgment. The district

court granted Qwest’s motion. It recognized that the Plan’s decision would be

upheld unless arbitrary and capricious, and concluded that substantial evidence

supported the Plan’s decision. On appeal, M r. Grosvenor argues that Qwest was

arbitrary and capricious in evaluating his STD claim and the district court erred in

holding otherw ise.



                                    Discussion

      W e review a grant of summary judgment de novo, applying the same legal

standard used by the district court. Zurich N. Am. v. M atrix Serv., Inc., 426 F.3d

1281, 1287 (10th Cir. 2005). Summary judgment is appropriate if there is no

genuine issue as to any material fact. Fed. R. Civ. P. 56(c); Kimber v. Thiokol

Corp., 196 F.3d 1092, 1097 (10th Cir. 1999). W e resolve all ambiguities and

draw all factual inferences in favor of the non-moving party. Zurich, 426 F.3d at

                                        -6-
1287.

        The Plan A dministrator’s decision to deny benefits is subject to an arbitrary

and capricious standard of review. Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 115 (1989). The district court’s determination of whether a plan

administrator’s decision is arbitrary and capricious is a legal conclusion subject to

de novo review . Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th

Cir. 2002). Under the arbitrary and capricious standard, we must uphold the plan

administrator’s decision if it is grounded on any reasonable basis, and that basis

need not be the only logical one or even the best one. Kimber, 196 F.3d at 1098;

Nance v. Sun Life Assur. Co. of Canada, 294 F.3d 1262, 1269 (10th Cir. 2002).

The administrator’s decision need only fall “somewhere on a continuum of

reasonableness— even if on the low end.” Kimber, 196 F.3d at 1098 (internal

quotation omitted).

        Indicia of an arbitrary and capricious decision includes the lack of

substantial evidence. Caldwell, 287 F.3d at 1282. Substantial evidence is

evidence that a reasonable mind might accept as adequate to support a

conclusion. Id. It requires more than a scintilla but less than a preponderance.

Sandoval v. Aetna Life & Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992).

Substantiality is based on the record as a w hole. Caldw ell, 287 F.3d at 1282. In

applying this arbitrary and capricious standard, we are “limited to the

‘administrative record’— the materials compiled by the administrator in the course

                                          -7-
of making his decision.” Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997,

1003 (10th Cir. 2004) (quoting Hall v. Unum Life Ins. Co. of Am., 300 F.3d

1197, 1201 (10th Cir. 2002)).

      W hen there exists a conflict of interest or procedural irregularity, less

deference to the plan administrator’s decision is warranted. Fought, 379 F.3d at

1007. M r. Grosvenor does not claim a conflict of interest existed here, but rather

argues that “[t]he haste with which Qwest pushed Grosvenor’s claim through the

initial evaluation and subsequent appeal process, together with its evident lack of

interest in investigating the objective medical documentation . . . [and its

selective review] of Grosvenor’s medical records,” Reply Br. at 3, constituted

serious procedural irregularities sufficient to lower the deference we accord. H e

reminds us that in Gaither v. Aetna Life Ins. Co., 388 F.3d 759, 774-75 (10th Cir.

2004), we stressed that a plan fiduciary must seek to get at the truth of the matter,

rather than behave in an adversarial matter and reject claims when a little more

evidence might substantiate such a claim.

      W e do not perceive serious procedural irregularities in this plan procedure

as envisioned by Fought, 379 F.3d at 997. As we read Fought, the serious

procedural irregularity included the lack of an independent review in a complex

case where the plan administrator operated under an inherent conflict of interest

and resisted discovery on that conflict. A serious procedural irregularity is not

present every time a plan administrator comes to a decision adverse to the

                                         -8-
claimant on conflicting evidence. As such, we apply the “pure” arbitrary and

capricious standard.

      In applying this standard of review, we consider the evidence before the

Plan Administrator at the time he made the decision to deny benefits, unless the

Plan acted in an arbitrary and capricious manner by refusing to reopen the claim

and consider additional factual submissions. See Nance, 294 F.3d at 1269. M r.

Grosvenor argues that the Plan was arbitrary and capricious in refusing to

consider evidence received after the M ay 31, 2001 denial letter. Aplt. Br. at 32. 1

W e disagree.

      The Plan required M r. Grosvenor to provide evidence of disability “within

a reasonable period not to exceed three weeks from the first day of absence, and

after each follow-up visit with a Provider,” Aplt. App. at 39-40, and provided that

M r. Grosvenor had 60 days from the denial of his claim for benefits to appeal. Id.

at 57. There is no provision in the plan for multiple appeals or a provision

requiring a continuous opportunity to supplement. M oreover, M r. Grosvenor’s

argument that the Plan’s time frame “will often make the promise of disability

benefits illusory” is unpersuasive. Here, M r. Grosvenor needed to produce

evidence within a reasonable time after he concluded that he was unable to

continue working until his symptoms could be brought under control. That



      1
        Qwest is incorrect that M r. Grosvenor never raised this argument before
the district court and thus we should consider it w aived. Aplt. A pp. at 210-212.

                                         -9-
evidence could be supplemented during appeal. These are not unreasonable

procedures. See Sandoval, 967 F.2d at 381 (“If a plan participant fails to bring

evidence to the attention of the administrator, the participant cannot complain of

the administrator’s failure to consider this evidence.”). W e are wary of rewriting

the terms of the plan so as to require that a plan administrator consider all

evidence (even that submitted after a final decision) presented prior to litigation.

See Vega v. Nat’l Life Ins. Serv., 188 F.3d 287, 300 (5th Cir. 1999) (en banc).

ERISA ’s fiduciary provisions do not require a plan administrator to consider

evidence submitted after a final benefits decision is made. See 29 U.S.C. § 1104.

W hen an administrator follows the terms of the plan, we will not hold that to be

arbitrary and capricious. See Nance, 294 F.3d at 1269.

       Examining that evidence before the Administrator when it denied M r.

Grosvenor’s appeal on M ay 31, 2001, see Hall, 300 F.3d at 1201, we now turn to

the question of w hether that denial was arbitrary and capricious. Though M r.

Grosvenor’s subjective explanation of his symptoms w as detailed, see, e.g., Aplt.

App. 278-81, we recognize that the Plan was well within its rights to consider the

etiology of those symptoms and any objective support. M r. Grosvenor’s M RIs

and C T scans returned as “unremarkable” and “normal.” Id. at 92-98. The IHC

Hearing and Balance Center reported balance difficulties as a result of mild

vestibular-somatosensory dysfunction, but concluded M r. Grosvenor could return

to work as long as he did not work on any “heights, ladders or platforms.” There

                                         - 10 -
is no dispute that M r. G rosvenor’s responsibilities did not include such work.

      M r. Grosvenor argues that the Plan improperly ignored the opinions of his

treating physicians that he was disabled. It is clear the Administrator considered,

but did not find these opinions persuasive because they were unsupported by the

“objective” medical documentation that the Plan requires and indeed, neither

doctor explained why M r. Grosvenor’s balance difficulty would preclude him

from performing any of his managerial responsibilities. The A dministrator’s

decision concerning the weight to be given such opinions after considering the

underlying evidence or lack thereof differs from ignoring them. M oreover, there

is no requirement that the treating physician’s conclusion trump that of, for

example, the IHC, which reported, after extensive testing, that M r. Grosvenor

could return to work. See Black & Decker Disability Plan v. Nord, 538 U.S. 822,

825 (2003). In Kimber, we concluded that a rational plan administrator could

reject a physician’s reports when there was no accompanying data to support that

conclusion. 196 F.3d at 1099. M r. Grosvenor’s treating physician reports

included no objective medical documentation, such as x-rays, M RIs or CT scans,

to support their conclusion, and as in Kimber, the Administrator could decline to




                                        - 11 -
credit them. Given our standard of review, the district court’s judgment must be

      A FFIR ME D.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                       - 12 -
