                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 02-3541
                                ________________

Robert A. Morgan,                         *
                                          *
             Appellee,                    *
                                          *      Appeal from the United States
      v.                                  *      District Court for the
                                          *      District of Minnesota.
UNUM Life Insurance Company of            *
America,                                  *          [PUBLISHED]
                                          *
             Appellant.                   *

                                ________________

                                Submitted: May 15, 2003
                                    Filed: October 22, 2003
                                ________________

Before MORRIS SHEPPARD ARNOLD and HANSEN, Circuit Judges, and READE,
District Judge.1
                        ________________

HANSEN, Circuit Judge.

      This is a case arising under the Employee Retirement Income Security Act of
1974 (ERISA). UNUM Life Insurance Company of America, the insurer and plan
administrator, initially awarded long-term disability benefits to Robert A. Morgan on
account of his fibromyalgia and insomnia. However, after conducting surveillance

      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, sitting by designation.
of Morgan's activities the following year, UNUM terminated his benefits. Morgan
exhausted his administrative remedies and then filed suit.

      The district court2 granted Morgan's motion for summary judgment and denied
UNUM's motion for summary judgment. The court reinstated Morgan's disability
benefits, awarded him past-due benefits with accrued prejudgment interest, and
awarded him costs and attorney fees. UNUM now appeals. For the reasons discussed
below, we affirm the judgment of the district court.

                                         I.

        Morgan holds a Ph.D. in optical sciences. In April 1994, after he had worked
in that field for approximately six years, the Honeywell Technology Center hired him
as a Senior Principal Research Scientist in its Photonics Section. During his
employment with Honeywell, Morgan was diagnosed with insomnia and
fibromyalgia, which impaired his ability to do his job. At various times, Honeywell
attempted to accommodate Morgan by placing him on medical leave, reducing his
hours, and reducing his duties, but these accommodations were unsuccessful.
Morgan stopped working in March 1999 and applied for long-term disability benefits.
After an investigation, UNUM agreed in December 1999 that he had become disabled
in March and awarded benefits. As part of the investigation, UNUM questioned three
doctors who had treated Morgan, Dr. William Tiede, Dr. Samuel Yue, and Dr. Carole
Selin, and examined their treatment records. Also, a UNUM benefits specialist
interviewed Morgan by telephone, and a UNUM field agent visited him at home.

      Dr. Tiede was Morgan's primary-care physician, who treated him continuously
beginning in December 1995. Morgan complained of difficulty sleeping at night


      2
       The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
                                         2
which significantly impaired his cognitive abilities during the day. Sleep studies
confirmed that Morgan had considerable difficulty falling asleep, woke up often
during the night, and experienced a poor quality of sleep. Dr. Tiede diagnosed
Morgan with chronic and acute insomnia. Morgan also complained of general
achiness and severe pains in his neck, back, and joints that contributed to his
sleeplessness. Dr. Tiede diagnosed Morgan with fibromyalgia after performing a
tender-point test and referred him to Dr. Yue, a pain-management specialist, in April
1998. Dr. Yue confirmed the diagnosis of fibromyalgia by performing a tender-point
test and treated Morgan through March 2000. Dr. Yue eventually directed Morgan
to stop working because his fatigue and pain made him unable to do his job. Dr. Yue
also directed Morgan not to engage in repetitive activity, lift more than twenty
pounds, or stay in one position for more than thirty minutes.

       While he was under Dr. Tiede's and Dr. Yue's care, Morgan's treatments for his
insomnia and fibromyalgia included varying dosages of many different medications,
referrals to specialists, dietary restrictions, biofeedback sessions, meditation, light
exercise, and participation in an investigational new drug study. None of these
treatments satisfactorily resolved Morgan's conditions.

       Dr. Selin was a psychologist who treated Morgan for a brief period from
January through April 1999. Initially, she agreed that he was suffering from pain
disorder associated with fibromyalgia, and she submitted a letter to Honeywell in
February stating that Morgan would be unable to work more than two days per week
for the next three months. However, Morgan's relationship with Dr. Selin
deteriorated and became antagonistic over time. After Morgan stopped seeing Dr.
Selin, she advised Dr. Yue that she thought Morgan was dependent on and overusing
sedatives. She also opined that she did not believe Morgan was disabled, and that in
her view, he was exaggerating his conditions in order to get disability benefits and
be able to move out-of-state to live with his teenage daughters.



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      When a UNUM medical specialist asked Dr. Yue about Dr. Selin's opinion
during a telephone conversation, Dr. Yue discounted her opinion, attributing it to a
"personality clash" with Morgan.

       In Morgan's telephone interview by a UNUM benefits specialist, he described
a typical day's activities as including stretching, exercising at a gym for about forty-
five minutes, light reading while seated in a chair, and driving his car to run errands.
During Morgan's in-person interview by a UNUM field agent, the agent observed him
drive his car and sit in a recliner for about an hour. Morgan told the agent that he
spent some time each day doing light reading and sitting on his patio. Morgan
advised the agent that, per his doctor's advice, he stretched and did light aerobic
exercise at a gym. Morgan said that he was able to ride a stationary bicycle, lift light
objects, and walk a mile.

      After this investigation, UNUM awarded Morgan long-term disability benefits
in December 1999, concluding that he had become disabled in March 1999. Morgan
also applied for and received Social Security Disability Insurance benefits.

                                           II.

       Twice in 2000, UNUM hired an investigator to conduct surveillance of
Morgan. At various times during a four-day period in April 2000, the investigator
saw him drive and refuel his car, eat lunch at a restaurant, go to the bank and the gym,
and carry newspapers and a recycling bin of unknown weight to the end of the
driveway at his home. At various times during a three-day period in June 2000, the
investigator saw him drive and refuel his car, sit on his patio and read, and stretch and
exercise at the gym. Morgan's approximately forty-five minutes of exercise included
using a "walking machine" and a "stair stepping machine," riding a stationary bike,
and doing sit-ups. The investigator reported that during the two surveillance periods,
he saw Morgan bend at the waist, carry various objects (his gym bag, the recycling

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bin with unknown contents, the newspapers, and a lawn chair) and set up the lawn
chair on the patio.

       UNUM sent Morgan's file to Dr. Steven Feagin, an in-house physician, for
review. Upon reviewing the materials in the file that had been generated in
connection with Morgan's successful application for disability benefits, Dr. Feagin
expressed skepticism that Morgan was disabled by fibromyalgia and insomnia. Based
on the new surveillance evidence added to the file, Dr. Feagin opined that Morgan's
activities were incompatible with fibromyalgic impairment. UNUM terminated
Morgan's long-term disability benefits in August 2000, relying on Dr. Feagin's
opinion in concluding that Morgan was able to perform his job duties.

       Morgan filed an administrative appeal. He submitted updated treatment
records from Dr. Tiede and Dr. Yue; treatment records from Dr. Barry Cosens, a
psychiatrist and sleep specialist who treated Morgan from July 1996 through January
1998; results of a 1997 sleep study, along with analysis by the sleep specialist who
reviewed the results, Dr. Salim Kathawalla; results of a 1999 sleep study, along with
analysis by the sleep specialist who reviewed the results, Dr. Martin Scharf; a medical
journal article pertaining to the investigational new drug study Morgan was
participating in for his fibromyalgia-related pain, fatigue, and sleeplessness; and
medical literature regarding fibromyalgia. Morgan also furnished letters from Dr.
Tiede and Dr. Yue commenting that stretching and light exercise lasting
approximately forty-five minutes were not incompatible with a diagnosis of
fibromyalgic impairment, and indeed, that such stretching and exercise constituted
medically appropriate treatments. Last, Morgan submitted a November 2000
evaluation by Dr. Thomas Misukanis, a neuropsychologist who tested Morgan and
opined that he had significant cognitive deficits consistent with fibromyalgia.

     UNUM sent Dr. Misukanis's evaluation to their own neuropsychologist, Dr.
Glenn Higgins, who pointed out certain flaws in the evaluation and recommended

                                          5
further investigation. Dr. Higgins did not review the rest of Morgan's file. UNUM
denied Morgan's appeal. Dr. Misukanis then submitted a rebuttal report, which
UNUM sent to Dr. Higgins for review. Dr. Higgins stood by his earlier conclusions,
but noted that he was not commenting on Morgan's physical condition or claimed
fibromyalgia because those matters went beyond his area of expertise. After this
further review, UNUM upheld its denial of Morgan's appeal.

      Morgan then sued UNUM under ERISA. As noted above, the district court
granted summary judgment in Morgan's favor, and UNUM now appeals.

                                          III.

       When an ERISA plan gives the plan administrator discretion to determine
eligibility for benefits (as both parties agree the instant plan does), we ordinarily
review the administrator's decision for abuse of discretion. See Woo v. Deluxe Corp.,
144 F.3d 1157, 1160 (8th Cir. 1998). The administrator's decision is entitled to less
deference, however, if the claimant shows the existence of a serious procedural
irregularity that affected the administrator's decision. See id. at 1160-61. In some
circumstances, the administrator's use of an in-house physician rather than a specialist
to review a disability claim involving an uncommon disease can be a serious
procedural irregularity affecting the administrator's decision. Compare id. at 1161
with Clapp v. Citibank, N.A. Disability Plan, 262 F.3d 820, 827-28 (8th Cir. 2001).

       The parties quarrel about which standard of review applies here. While our
prior cases are not pellucid, we are satisfied that the result in this case is the same
under either standard of review. Under the abuse-of-discretion standard, UNUM's
decision to terminate Morgan's disability benefits would have to be supported by
"substantial evidence"; under the less-deferential standard, UNUM's decision to
discontinue Morgan's disability benefits would have to be supported by "evidence
bordering on a preponderance." See Woo, 144 F.3d at 1162.

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       We conclude that substantial evidence does not support UNUM's decision to
terminate Morgan's disability benefits in August 2000. When UNUM initially
awarded Morgan benefits in December 1999, having determined that he was disabled
since March 1999, UNUM already knew through its investigation of Morgan's
application for benefits that he routinely engaged in the type of activities that UNUM
later observed through surveillance and used as the basis for discontinuing his
benefits. Dr. Tiede's and Dr. Yue's treatment records show that Morgan was regularly
engaging in light exercise while under their care. In Morgan's telephone interview
with the UNUM benefits specialist, he described his typical day as including
stretching, exercising at a gym for about forty-five minutes, light reading while
seated, and driving. The UNUM field agent who interviewed Morgan in person
observed him driving his car, and Morgan told the agent that he routinely stretched
and did light aerobic exercise at a gym, he was able to ride a stationary bicycle, he
could lift light objects, and he was able to walk a mile.

       Thus, UNUM's surveillance--showing Morgan driving his car, eating lunch at
a restaurant, carrying light objects, sitting and reading, and stretching and doing light
aerobic exercise at the gym for about forty-five minutes--revealed nothing new and
was not substantial evidence supporting UNUM's decision to discontinue Morgan's
disability benefits. Dr. Feagin's opinion that Morgan's activities shown on the
surveillance footage were incompatible with fibromyalgic impairment was also not
substantial evidence for several reasons. Dr. Feagin's opinion was directly contrary
to the opinions of Morgan's two primary treating physicians, Dr. Tiede and Dr. Yue.
Nothing in the record shows that Dr. Feagin had any expertise or experience
whatsoever in dealing with fibromyalgia. And Dr. Feagin's opinion on the physical
limitations of a person impaired by fibromyalgia was at best tangentially relevant to
Morgan's circumstance of being disabled by the cognitive deficits rather than the
physical limitations he suffered due to fibromyalgia and insomnia.




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       Similarly, whatever value Dr. Selin's opinion had, it was known to UNUM at
the time it initially determined Morgan was disabled and awarded him benefits. Her
opinion was therefore not substantial evidence supporting UNUM's later decision to
rescind Morgan's benefits.

      Finally, UNUM urges that we should disregard Dr. Misukanis's November
2000 evaluation of Morgan because it was conducted after the August 2000
discontinuation of benefits. We agree, which has the consequence of making Dr.
Higgins's critique of Dr. Misukanis's evaluation extraneous, and thus not substantial
evidence supporting UNUM's decision to discontinue Morgan's benefits.

                                        IV.

      Accordingly, we affirm the district court's judgment in Morgan's favor.
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