                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-1162



BRENDA HENSLEY, an individual,

                                                 Plaintiff- Appellee,


          versus

INTERNATIONAL BUSINESS MACHINES CORPORATION, a
New  York   Corporation; METROPOLITAN     LIFE
INSURANCE COMPANY, a Delaware Corporation,

                                          Defendants - Appellants,


          and

DOES 1 THROUGH 10, inclusive,

                                                           Defendant.



                            No. 04-1728



BRENDA HENSLEY, an individual,

                                             Plaintiff - Appellee,


          versus

INTERNATIONAL BUSINESS MACHINES CORPORATION, a
New  York   Corporation; METROPOLITAN     LIFE
INSURANCE COMPANY, a Delaware Corporation,

                                          Defendants - Appellants,
           and

DOES 1 THROUGH 10, inclusive,

                                                        Defendant.


Appeals from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (CA-03-233-3; CA-03-223-3)


Argued:   September 29, 2004          Decided:   December 13, 2004


Before WILKINSON and LUTTIG, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of Virginia,
sitting by designation.


Reversed by unpublished opinion. Judge Luttig wrote the opinion,
in which Judge Wilkinson and Judge Hudson joined.


ARGUED: Beth Ann Oliak, METROPOLITAN LIFE INSURANCE COMPANY, New
York, New York, for Appellants. Mark F. Underwood, Huntington,
West Virginia, for Appellee. ON BRIEF: Scott A. Damron, DAMRON &
TAYLOR, Huntington, West Virginia; C. J. Schmidt, WOOD & LAMPING,
Cincinnati, Ohio, for Appellants.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
LUTTIG, Circuit Judge:

     Defendants-appellants International Business Machines Corp.

(“IBM”) and Metropolitan Life Insurance Co. (“MetLife”) appeal from

an order of the United States District Court for the Southern

District of West Virginia granting summary judgment to plaintiff-

appellee Brenda Hensley.    The district court held that MetLife

abused its discretion in terminating Hensley’s long-term disability

benefits under an ERISA-governed employee benefits plan.    Because

we conclude that MetLife did not abuse its discretion, we reverse

the judgment of the district court.



                                I

     Appellee Hensley was employed by IBM in a sedentary capacity

as an “accounts specialist” prior to August 1999.       During that

time, she participated in a group long-term disability plan (“the

Plan”) administered by MetLife on behalf of IBM.    The Plan is an

employee welfare benefit plan within the meaning of the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.

According to the terms of the Plan, a “totally disabled” employee

is entitled to long-term disability (“LTD”) benefits.     J.A. 191.

“Totally disabled” is defined as follows:

     [T]otally disabled means that during the first 12 months
     after you complete the waiting period, you cannot perform
     the important duties of your regular occupation with IBM
     because of a sickness or injury. After expiration of
     that 12 month period, totally disabled means that,
     because of a sickness or injury, you cannot perform the

                                3
      important duties of your occupation or of any other
      gainful occupation for which you are reasonably fit by
      your education, training or experience.

J.A. 193.     The Plan also provides that the Plan’s administrator

“shall have discretionary authority to interpret the terms of the

Plan and to determine eligibility for and entitlement to Plan

benefits in accordance with the terms of the Plan.”        J.A. 213.

      On August 9, 1999, Hensley applied for LTD benefits under the

Plan, submitting a statement of her attending physician diagnosing

her with osteoarthritis and rotator cuff syndrome.             J.A. 726.

MetLife initially granted her application for LTD benefits on

November 9, 1999, but sought further information regarding her

disability in January and March of 2000.            A second attending

physician submitted a letter to MetLife in April 2000 in response

to   these   requests.   He   listed   Hensley’s   diagnoses   as   morbid

obesity, osteoarthritis, rotator cuff tendinitis, wrist tendon

inflammation, carpal tunnel syndrome, and lower back pain, but he

did not include objective tests or x-ray reports to substantiate

these diagnoses.    J.A. 463.    An independent physician consultant

reviewed Hensley’s medical records on behalf of MetLife in August

2000 and concluded that the records showed no objective impairment

that would prevent Hensley from returning to work.        J.A. 425.    On

the consultant’s recommendation, a functional capacity exam (“FCE”)

was performed on Hensley in March 2001 to assess her physical

capabilities, but the physical therapist reported that Hensley did


                                   4
not put forth a consistent effort during the tests and that Hensley

exaggerated   her   pain     complaints.     J.A.   400-02.      After   the

independent consultant concluded in a second review that Hensley

had not produced medical evidence of incapacity for work, J.A. 390-

91, MetLife terminated her benefits in November 2001.

     In support of two subsequent appeals to MetLife, Hensley

submitted another diagnosis letter from a third attending physician

and the report from a second FCE.          J.A. 115, 167.     But the third

doctor did not provide additional objective evidence to support

Hensley’s diagnoses, see J.A. 115-16, and the physical therapist

again concluded that Hensley exaggerated her symptoms and engaged

in self-limiting behavior, J.A. 168.           MetLife denied Hensley’s

appeals.

     Hensley sued IBM and MetLife for restoration of her benefits

under the Plan in the district court in March 2003.            J.A. 6.   On

cross-motions for summary judgment,1 the district court granted

summary judgment for Hensley, holding that MetLife abused its

discretion as administrator of the Plan in terminating Hensley’s

LTD benefits.     J.A. 31.    The district court also awarded Hensley

costs and fees.     Order Granting Plaintiff’s Motion for Attorney’s

Fees, Costs and Prejudgment and Postjudgment Interest at 1.              IBM

and MetLife appeal from both orders.



     1
      The parties did not dispute any material fact in the record.
J.A. 22.

                                     5
                                  II

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

novo, applying the same standards employed by the district court.

Gallagher v. Reliance Std. Life Ins. Co., 305 F.3d 264, 268 (4th

Cir. 2002).    Where, as here, an ERISA plan gives the administrator

discretionary authority to interpret the terms of the plan, the

district court reviews the administrator’s decisions for abuse of

discretion. Booth v. Wal-Mart Stores, Inc., 201 F.3d 335, 341 (4th

Cir. 2000).    Under the abuse of discretion standard, the court may

not overturn the administrator’s denial of benefits if the denial

“is the result of a deliberate, principled reasoning process and if

it is supported by substantial evidence.”      Elliott v. Sara Lee

Corp., 190 F.3d 601, 605 (4th Cir. 1999) (quoting Brogan v.

Holland, 105 F.3d 158, 161 (4th Cir. 1997)).   Substantial evidence

is more than a scintilla, but less than a preponderance.    Newport

News Shipbuilding and Dry Dock Co. v. Cherry, 326 F.3d 449, 452

(4th Cir. 2003).

     Because MetLife both administers and funds the plan, however,

we adjust the standard of review by decreasing our deference to

MetLife in proportion to the degree of MetLife’s conflict of

interest.     In such circumstances, we must determine whether the

denial of benefits would constitute an abuse of discretion by a

disinterested fiduciary.    See, e.g., Bailey v. Blue Cross & Blue

Shield of Virginia, 67 F.3d 53, 56 (4th Cir. 1995) (“[W]e will


                                  6
review the merits of the [funding fiduciary’s] interpretation to

determine whether it is consistent with an exercise of discretion

by a fiduciary acting free of the interests that conflict with

those of the beneficiaries.”).                Even on this adjusted scale of

deference, we conclude that MetLife did not abuse its discretion

because its decision to terminate Hensley’s benefits was the result

of a deliberate, principled reasoning process and supported by

substantial evidence.



                                          A

     It is apparent from the record that MetLife’s decision to

terminate benefits was the result of a “deliberate, principled

reasoning process.”        The decision followed MetLife’s multiple

requests     for   information     from       Hensley’s   physicians,   repeated

reviews of her medical records by the independent consultant, and

two appeals of the initial termination during which Hensley was

permitted to provide supplemental medical evidence.

     MetLife’s     decision   to    terminate       Hensley’s   benefits   might

appear inconsistent with its prior determination in November 1999

that she was “totally disabled” under a functionally identical

standard.2    But the fact that MetLife initially awarded benefits to


     2
        The Plan’s “regular occupation” definition of total
disability applied to the April 1999 decision, while the “any
occupation” definition applied to the November 2001 termination.
But because this dispute focuses on Hensley’s ability to perform
any sort of sedentary labor at all, there is no practical

                                          7
Hensley does not mean that its subsequent termination of those

benefits was the result of unprincipled reasoning. The termination

of benefits was based on further investigation and review,3 during

which Hensley’s physicians failed to provide objective support for

their diagnoses and Hensley failed to put forth credible efforts in

two   functional    capacity     exams.       And,   as   the   district    court

correctly noted, the Fourth Circuit has held that no vested right

to benefits accrues under an employee welfare benefits plan, see

Gable v. Sweetheart Cup Co., 35 F.3d 851, 855 (4th Cir. 1994), so

that “the decision to grant benefits initially cannot create an

obligation   by    which   a   plan   fiduciary      is   estopped   from   later

terminating benefits.”         J.A. 26.



                                          B

      We also conclude that MetLife’s decision was supported by

substantial evidence. As MetLife’s consultant twice concluded, the

record is largely devoid of objective medical evidence of total




difference between the two standards for the purposes of this
appeal.
      3
      This factor, among others, distinguishes the case upon which
Hensley principally relies, Norris v. Citibank Disability Plan, 308
F.3d 880 (8th Cir. 2002). The Norris court emphasized that the
plan administrator’s denial of benefits came “a few months later,
and on the basis of no new medical evidence,” after a prior
determination that the claimant was totally disabled. Id. at 885
(emphasis added).

                                          8
disability, such as x-rays, test results or MRI reports.4                            J.A.

391,       425.    Instead      of    objective      evidence,       Hensley       relies

principally       on   the    diagnosis        letters   of    her   three       treating

physicians, Dr. Wazulak, Dr. Harvey, and Dr. Martin.                       But none of

these doctors provided objective evidence of disability to support

his conclusions.           Dr. Wazulak’s report of August 1999 listed

nothing under “objective findings,” but listed only subjective pain

symptoms to support his diagnoses.                   J.A. 726.          Likewise, Dr.

Harvey’s      letter   of     April     2000    reported      several     pain-related

diagnoses for Hensley, but admitted that Dr. Harvey did not have

actual x-ray reports or reports from specialists substantiating

these diagnoses.        J.A. 463.        And Dr. Martin’s letter of December

2001 merely recited the same diagnoses as Dr. Harvey’s, without

providing additional objective medical evidence.                     J.A. 115-16.

       In the absence of objective evidence of Hensley’s disability,

it was reasonable for MetLife to conclude that the diagnoses of her

treating physicians rested primarily or exclusively upon Hensley’s

subjective pain complaints.              But the results from her subsequent

FCEs       substantially      undercut     the     credibility       of    those    pain

complaints.        Both      physical    therapists      concluded        that   Hensley


       4
       One exception is that a spine MRI performed on Hensley in
April 2000 confirmed that she had degenerative disc disease. That
MRI, however, found no disc herniation.      J.A. 453.   A doctor
examining Hensley and the MRI report at that time described her as
“a middle-aged female in no acute distress” and noted that she had
refused to undergo nerve conduction studies that might confirm the
diagnosis of her carpal tunnel syndrome. J.A. 455.

                                           9
engaged in self-limiting behavior and symptom magnification during

the FCEs.   J.A. 167, 402.       The report from the second FCE, which

was   performed   upon   the    referral     of   her   treating   physician,

emphasized Hensley’s self-limitation:

      The results of this FCE do not represent a valid measure
      of Brenda’s maximum functional capacities as she
      significantly limited her performance due to pain and, at
      the same time, demonstrated maximum signs of magnified
      illness behavior. . . . Her requests to terminate testing
      due to pain were made in conjunction with the lack of
      objective pain behavior and a pleasant, even jovial
      demeanor while rating her pain at a ‘9 out of 10.’

J.A. 168.    Despite his inability to assess her full physical

capacities, the therapist nevertheless concluded that Hensley was

capable of “SEDENTARY” work under Department of Labor Standards.

J.A. 167.   Given that the Plan placed upon Hensley the burden of

producing evidence of total disability, J.A. 193, and given her

non-cooperation in both FCEs, it was reasonable for MetLife to

conclude that Hensley was capable of sedentary occupation.

      The district court reasoned that it was unreasonable for

MetLife to credit the opinion of an independent consultant who had

never   treated   Hensley,     over    the   contrary   conclusions   of   her

treating physicians.     J.A. 27 (“To rely solely on the opinion of an

independent consultant physician who examined only medical records

-- as opposed to examining the claimant -- in the face of the

unanimity of the physicians who had examined the claimant . . . is

arbitrary and capricious.”).          But the Supreme Court has explicitly

held that ERISA plan administrators are not required to accord any

                                       10
special deference to the opinions of treating physicians over those

of non-treating consultants.              Black & Decker Disability Plan v.

Nord, 538 U.S. 822, 834 (2003) (“[C]ourts have no warrant to

require administrators automatically to accord special weight to

the opinions of a claimant’s physician . . . .”).                    As noted above,

MetLife     had    reason   to    believe      that    the   treating       physicians’

diagnoses rested on subjective pain complaints whose credibility

was undermined by the FCE tests, which were designed to assess

actual functional capacities and to detect pain magnification. See

J.A. 401 (evaluating Hensley’s pain behavior during testing).                          In

light of this evidence, it was reasonable for MetLife to discount

the conclusions of Hensley’s treating physicians.

      The   district      court    also   emphasized         that   subjective       pain

complaints     can    often   constitute        a     medically     sound    basis    for

diagnosis.        J.A. 28 (“Merely because we cannot see pain or fatigue

on an x-ray, or measure it in a laboratory, does not mean that it

is not real.” (quoting Palmer v. Univ. Med. Group, 994 F. Supp.

1221, 1233 (D. Or. 1998))).          But the Fourth Circuit has held that

denials of benefits are permissible where the claimant provides

only subjective pain complaints and not objective evidence.                          See,

e.g., Lown v. Continental Casualty Co., 238 F.3d 543, 546 (4th Cir.

2001) (upholding, on de novo review, the denial of benefits against

the   opinions      of   three    treating      physicians     where    the    insurer

“determined that [the claimant’s] documentation was inadequate to


                                          11
prove a total disability because of the lack of test results or

other objective evidence to support the disability”); Ellis v.

Metropolitan Life Ins. Co., 126 F.3d 228, 231 (4th Cir. 1997)

(approving     MetLife’s     reliance      on    a     board    of    non-treating

consultants over the opinions of treating doctors who credited the

claimant’s     pain   complaints      but       could    not    pinpoint     their

“etiology”). This preference for objective verification is all the

more reasonable in light of the evidence of symptom magnification

present in this case.

      In sum, MetLife’s decision to terminate Hensley’s LTD benefits

was the result of a deliberate, principled reasoning process.                  And

the   record   clearly     contains   substantial        evidence      to   support

MetLife’s conclusion.       MetLife’s decision thus did not constitute

an abuse of discretion, even under the adjusted standard of review.



                                      III

      MetLife and IBM also appeal from the district court’s award of

pre- and postjudgment interest, costs, and attorney’s fees.                     We

review   the   district     court’s   award      for    abuse    of    discretion.

Metropolitan Life Ins. Co. v. Petitt, 164 F.3d 857, 865 (4th Cir.

1998). In awarding attorney’s fees, the district court applied the

five factors of Quesinberry v. Life Ins. Co. of North Am., 987 F.2d




                                      12
1017, 1029 (4th Cir. 1993) (en banc).5           Here the district court

relied primarily on (1) the degree of opposing parties’ culpability

or   bad   faith,   and   (5)   the   relative   merits   of   the   parties’

positions.    Order Granting Plaintiff’s Motion for Attorney’s Fees,

Costs and Prejudgment and Postjudgment Interest at 4.           In light of

our conclusion that MetLife did not abuse its discretion, neither

of these factors favors Hensley.           Therefore the district court’s

order granting fees, costs, and interest is also reversed.



                                 CONCLUSION

      The judgment of the district court is reversed and the case is

remanded with instructions to enter judgment for appellants.

                                                                     REVERSED




      5
       The five factors are: (1) degree of the opposing parties’
culpability or bad faith, (2) the ability of opposing parties to
pay fees, (3) whether the fee award would deter others similarly
situated, (4) whether the parties requesting fees sought to benefit
other claimants or to resolve a significant ERISA-related legal
question, and (5) the relative merits of the parties’ positions.
Quesinberry, 987 F.2d at 1029.

                                      13
