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

                                                                            FILED
                                                                          January 8, 2008

                                     No. 07-30473                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ARTHUR CROSS, also known as Skip Cross

                                                  Plaintiff-Appellant
v.

RELIANCE STANDARD LIFE INSURANCE COMPANY; DIVERSIFIED
FOODS AND SEASONINGS INC

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:06-CV-3507


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Arthur Cross appeals the district court’s grant of
summary judgment in favor of Defendants-Appellees Reliance Standard Life
Insurance Company (“Reliance”) and Diversified Foods and Seasonings, Inc.
(“Diversified”) on Cross’s claim for wrongful denial of disability benefits. We
AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30473

                          I. FACTS AND PROCEEDINGS
       Cross was hired by Diversified as Director of National Account Sales on
January 1, 2001. As of April 1, 2001, Cross was insured under Diversified’s
Long-Term Disability Plan (“Plan”), which is governed by the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. To
receive benefits under the terms of the Plan for the first twenty-four months of
the claim, a claimant must be found to be totally disabled, which means that he
cannot perform the material duties of his regular occupation. The claimant must
be totally disabled throughout the elimination period of ninety days from the
first date of total disability.
       Cross had an aortic valve abnormality which first required surgery in
1984, and afterwards he occasionally experienced cardiac symptoms and
underwent additional catheterization and stenting procedures. On April 3, 2002,
Carlos Sotolongo, Cross’s physician, indicated that Cross was never expected to
return to full or part-time work. On February 24, 2003, Cross underwent a left
internal mammary artery implant. On February 4, 2004, he took a stress test
which showed normal blood pressure response and a borderline abnormal
baseline electrocardiogram. The test was clinically positive for ischemia1 but
electrocardiographically negative for it. Cross underwent a second stress test on
March 4, 2004, in which he achieved ninety percent of his maximum predicted
heart rate. He also achieved 9.4 METS.2 The test also indicated that he was


       1
         “Local anemia due to mechanical obstruction (mainly arterial narrowing or disruption)
of the blood supply.” STEDMANS MEDICAL DICTIONARY 211420 (27th ed. 2000).
       2
       Metabolic equivalents are “used to estimate the oxygen cost of activity . . . [and] more
than 9 METS [indicates] heavy work.” STEDMANS MEDICAL DICTIONARY 136370 (27th ed.
2000).

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clinically borderline positive for myocardial3 ischemia versus deconditioning and
electrocardiographically borderline positive.              On June 7, 2004, he visited
cardiologist Barry Kusnick, his last doctor visit before his June 25, 2004 stated
disability date. He complained of fatigue, dyspnea4 on walking from his front
door to the car, insomnia, and severe work-related stress. Kusnick’s notes from
the visit indicate that Cross “appear[ed] distraught” and indicated “severe . . .
work stress. Up against a very adversarial supervisor.”
       Beginning on April 21, 2004 and continuing through June 7, 2004, Cross
sent resumes to several employers and contacts, seeking a sales or sales
manager position. On June 22, 2004, three days before his stated disability date
and one day before the disability letter issued by his doctor, Cross sent one final
resume to a prospective employer.
       In a letter dated June 23, 2004, Kusnick informed Reliance that Cross was
permanently disabled effective immediately, noting Cross’s extensive medical
history. Cross’s claimed disability date was June 25, 2004 and his elimination
period ran through September 23, 2004. On July 26, 2004, when first visiting
Kusnick after his disability date, Cross told him that he had walked 1.5 miles in
thirty-five minutes.
       Reliance requested a review of Cross’s medical records by nurse Dorothy
McGarry which was conducted on August 25, 2004. She concluded that Cross
was “capable of sedentary restrictions and limitations” which would have to be
permanent. Reliance then requested a review by cardiologist Marvin Goldstein

       3
      The myocardium is “[t]he middle layer of the heart, consisting of cardiac muscle.”
STEDMANS MEDICAL DICTIONARY 265340 (27th ed. 2000).
       4
        “Shortness of breath, a subjective difficulty or distress in breathing, usually associated
with disease of the heart or lungs.” STEDMANS MEDICAL DICTIONARY 122310 (27th ed. 2000).

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who evaluated Cross’s records and the March 2004 stress test and concluded
that Cross should be able to perform a light duty occupation. He saw no change
in Cross’s cardiac condition on or around June 2004, when the disability was to
have occurred. On September 24, 2004, Reliance denied Cross’s application for
long-term disability benefits.
      After claiming disability, Cross moved to North Carolina. There, on
December 7, 2004, he saw cardiologist Richard Jacoby, his first doctor’s visit
since his July 26, 2004 appointment with Kusnick. After a March 3, 2005 office
visit, Jacoby wrote that Cross’s functional limitations, largely based upon Cross’s
reports of dyspnea on completing daily activities, “would make meaningful
employment difficult.”
      Cross requested a review of his medical records by another doctor, William
Porter, who practiced in internal medicine, hematology, and oncology. Porter
indicated that a January 5, 2005 stress test was normal but still noted Cross’s
significant dyspnea and concluded that he was disabled for any occupation as
continued employment would pose considerable medical risk to him. On March
10, 2005, Cross made a declaration that his position with Diversified was not
sedentary and involved significant activity. He also noted the considerable
stress of his position and his supervisor’s relentless expectations. He, however,
added that the stress level would be similar at other companies.
      At Reliance’s request, Jeffrey Caren, a cardiologist, reviewed Cross’s
records from Sotolongo, Kusnick, Goldstein, Jacoby, Porter, Cross’s declaration,
the 2004 stress tests, and additional reports from December 2004. Caren
concluded that Cross was capable of working at a light occupation.
      Following an administrative appeal, Reliance made a final determination
that Cross was not entitled to disability benefits under the Plan. Reliance noted,

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“Dr. Jacoby documents that Mr. Cross’s reported functional limitations would
make ‘meaningful employment difficult.’” It also observed that Kusnick indicated
that Cross was at “maximum medical rehabilitative state,” even though he had
not participated in a cardiac rehabilitation program after his bypass surgery
which had been recommended by Kusnick. In response to Porter’s concerns
about job-related stress, Reliance noted that Cross’s blood pressure remained
constant from before stopping to work to nine months after stopping work.
      Reliance observed that the Plan provided benefits if Cross was unable to
perform the material duties of his occupation, not his job which it defined as “a
set of specific tasks performed for a specific employer.” It concluded that Cross’s
stress associated with his adversarial supervisor was a specific job circumstance,
but did not preclude him from performing his occupation. Reliance pointed to
Cross’s attempts to find similar jobs up until he claimed disability. It also noted
that Cross did not consult with his cardiologist between January 21, 2004 and
June 7, 2004. However, Cross emailed his resume for a sales and management
position on the evening after the June 7, 2004 doctor visit. He sent his last
resume on June 22, 2004, the day before Kusnick sent a letter in support of
Cross’s disability.
      Cross commenced this action on July 6, 2006. After both parties filed
motions for summary judgment, the district court granted Reliance’s motion on
April 20, 2007. Cross appeals.




                         II. STANDARD OF REVIEW
      This Court reviews de novo the district court’s decision that a plan
administrator did not abuse its discretion in denying disability benefits. Barhan

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v. Ry-Ron Inc., 121 F.3d 198, 201 (5th Cir. 1997). Because the terms of the Plan
give the plan administrator discretionary authority to determine benefits, the
district court reviews the denial of benefits for abuse of discretion. Id. “[I]f the
administrator’s decision on eligibility is supported by substantial evidence and
is not erroneous as a matter of law, it will be upheld.” Id. However, because
Reliance acts as both the insurer and the plan administrator, it operates under
a conflict of interest because it “potentially benefits from every denied claim.”
Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 295 (5th Cir. 1999). This Court
therefore applies a “sliding scale standard” and grants Reliance’s decision “less
than full deference.” Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329,
333 (5th Cir. 2001). “The greater the evidence of conflict on the part of the
administrator, the less deferential our abuse of discretion standard will be.”
Vega, 188 F.3d at 297. However, “our review of the administrator’s decision need
not be particularly complex or technical; it need only assure that the
administrator’s decision fall somewhere on a continuum of reasonableness—even
if on the low end.” Id.
                               III. DISCUSSION
      Cross primarily claims that the stress of his occupation exacerbated his
heart condition. He argues that Reliance’s actions or inaction in evaluating his
claim evidences a conflict of interest and that, therefore, we should accord its
decision less deference. He concurrently points to Reliance’s actions or inaction
to indicate that its decision to deny him benefits was arbitrary and capricious.
Cross concedes that he could have physically performed the requirements of his
job on the day after he retired. He does not challenge Reliance’s interpretation
of the Plan that he had to be disabled from performing the material duties of his


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occupation, not his specific job, to qualify for benefits. He also concedes in his
reply brief that a plan administrator’s decision is not necessarily arbitrary and
capricious because it accepts the decisions of its physicians conducting a review
of records over the claimant’s treating physicians. See Sweatman v. Commercial
Union Ins. Co., 39 F.3d 594, 601–03 (5th Cir. 1994).
      Contrary to Cross’s argument, the administrative record does not show a
strong conflict of interest necessitating a less deferential review, nor does it show
that Reliance was arbitrary and capricious in deciding Cross’s claim. First, it
was reasonable for Reliance to rely on Goldstein’s opinion over that of McGarry’s
and Kusnick’s. It was not arbitrary for Reliance to accept the opinion of a
cardiologist over that of a nurse, McGarry. Moreover, Goldstein’s opinion was
based on the March 2004 stress test which was the test closest in time to Cross’s
claimed disability date. Goldstein relied on the best stress test available which
gave objective indications of how Cross’s body would react to stress. Cross
concedes in his reply brief that he was factually incorrect in his original brief in
asserting that Goldstein was not provided with the previous opinions of
Sotolongo and Kusnick. Goldstein considered those records when making his
determination.
      Although Cross claims there were several flaws in Goldstein’s conclusions,
we are not persuaded. He suggests that Goldstein’s reliance on the March 2004
test was in error because it was performed approximately four months before the
disability date.   This argument does not support Cross’s disability claim,
because, if the most recent stress test was unreliable, then Kusnick had few, if
any, objective bases for his conclusion that Cross became disabled on June 23,
2004. It is also difficult for Cross to argue that Goldstein’s reliance on the test
was misplaced because his doctors did not have him take another stress test for

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several months. Cross further claims that Goldstein erred in relying on the
March 2004 test because his condition was deteriorating. However, the objective
tests taken before and after his disability date indicate no such deterioration.
Cross also argues that Goldstein erred in relying on an approximation of his
walking speed to determine that he was capable of light work, but a review of
Goldstein’s report shows that he relied on objective data from the stress test for
that particular determination.     Furthermore, considering that Cross had
reported the numbers used to determine his mile per hour walking rate a month
after his disability date, neither Goldstein nor Reliance were unreasonable in
approximating his walking speed.
      Second, Reliance’s acceptance of Caren’s conclusion over Jacoby’s and
Porter’s was also reasonable.     Caren reviewed the records from the other
physicians, the results of the 2004 stress tests, Cross’s declaration, and
additional tests from December 2004.        His conclusions were based on the
objective evidence available in those records. On the other hand, Jacoby’s
opinion that meaningful employment would be difficult was based upon Cross’s
reported ailments months after his elimination period ended.             Porter’s
conclusions had a similar basis.     However, Porter also indicated that the
objective data from a January 7, 2005 exercise test “showed a normal ejection
fraction and no wall abnormalities.” Because of the objective criteria used,
Reliance reasonably accepted Caren’s conclusions over Jacoby’s and Porter’s.
Nor does its acceptance of Caren’s opinion indicate a conflict of interest.
      Furthermore, the record does not indicate that Reliance had a conflict of
interest or was arbitrary and capricious in its evaluation of Cross’s job stress.
Goldstein’s opinion was based upon stress tests that provided objective criteria
to evaluate Cross’s cardiac health. Cross’s blood pressure remained constant

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from the periods before and after his disability date, indicating that job stress
was not a factor in Cross’s condition. Even if it were, the administrative record
shows that the stress of which Cross complained was the result of his specific
job, not his occupation. First, on June 7, 2004, Kusnick noted Cross’s complaints
about his adversarial relationship with his supervisor as a cause of his severe
work stress. Second, Cross’s own actions in seeking the same occupation in
Florida at approximately the same time he applied for disability benefits,
indicates that the stress that he claims was dangerously deleterious to his health
was associated with his job at Diversified, not his occupation as a sales manager.
While Cross speculated that such stress would occur in any sales manager
position, his own actions indicate otherwise.
      Cross specifically asks this Court to decide whether an insured’s
contemplation of working for another employer against medical advice would
defeat an otherwise valid disability claim. We hold that, based upon the facts
of this case, Reliance was reasonable and exhibited no conflict of interest in
considering Cross’s actions in determining the validity of his claim. As Cross
was the source of much of the bases for his doctors’ opinions, the seriousness
with which he took their advice was relevant in determining the validity of their
conclusions. Cross’s actions were also relevant in determining whether it was
his job at Diversified or his occupation that was the cause of the stress he
claimed to be harmful to him.
      Cross also asks this Court to consider whether an insured is disabled if his
occupation is “dangerously deleterious to his health” but could otherwise perform
the work. We need not decide that question. Reliance did not conclude as a
factual matter that Cross’s occupation was dangerously deleterious to his health,



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and this Court holds that Reliance’s conclusions were reasonable and not the
result of a conflict of interest.
                                IV. CONCLUSION
      The judgment of the district court is AFFIRMED.




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