                        IN THE UNITED STATES OF APPEALS

                             FOR THE FIFTH CIRCUIT


                             _____________________

                                  No. 92-4843
                             _____________________



CLIFFORD DUHON,

                                                               Plaintiff-Appellee,
                                                               Cross-Appellant,
                                         versus

TEXACO, INC., ET AL.,

                                           Defendants-Appellants,
                                           Cross-Appellees.
_________________________________________________________________

        Appeals from the United States District Court for the
                    Western District of Louisiana

_________________________________________________________________
                  (   February 22, 1994        )

Before JOHNSON, JOLLY, and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     This       case    presents    us    with    a   rather     typical    question

pertaining to ERISA benefits:                the plaintiff, Clifford Duhon,

claims he was improperly denied long-term disability benefits by

his employer and moved for summary judgment in the district court.

The district court granted summary judgment in favor of Duhon.                     It

found    that     the    evidence    was    insufficient       because     the   plan

administrator determined disability based only on the reports of

medical doctors when the opinion of a vocational rehabilitation

expert   was     required.         The   district     court     ordered    the   plan

administrator to pay Duhon all past due benefits as well as future
benefits.   On appeal, we attempt to wade through the procedural

thicket of the case and focus on the central inquiry that should be

made in these cases:   Did the decision of the plan administrator

denying long-term disability benefits to Duhon constitute an abuse

of discretion?   Because we find that it did not, we reverse the

district court's grant of the plaintiff's summary judgment motion

and remand the case for further proceedings.

                                   I

     Appellee Clifford Duhon, now sixty-six years old, was employed

by appellant Texaco Trading and Transportation, Inc. ("Texaco")

from July 1985 through February 1989 as a truck driver.    On March

1, 1989, Duhon ended his employment as a truck driver because of a

degenerative back condition.   That date marked his separation from

work for purposes of Texaco's employee benefits plan; he began

receiving disability payments of $652.35 per month. Under Texaco's

disability plan, an employee may receive disability payments for

the first twenty-four months after the disability begins if the

employee is unable to perform the normal duties of his regular job

assignment or a comparable one.    Neither party disputes that Duhon

qualified for these disability payments for the first twenty-four

months following his separation from work.       After this initial

twenty-four month period passes, disability payments cease under

the plan "if the employee is able to perform any job for which he

or she is, or may become, qualified by training, education, or

experience."   (Emphasis ours).




                                  -2-
     Three doctors evaluated Duhon's condition in 1991 in order to

determine if his disability benefits should continue beyond the

initial twenty-four month period. Duhon was first evaluated by his

family physician, Dr. Charles Ray, who executed a disability

statement concluding that Duhon was unable to work as a truck

driver and that his condition was permanent.     Dr. Jacob Lahasky,

also a general practitioner, next examined Duhon at Texaco's

request.   Dr. Lahasky executed a disability statement in which he

concluded that Duhon should not drive trucks or do any heavy

lifting.   He also stated that Duhon's condition was permanent.

Finally, in July 1991, Duhon was seen by an orthopedist, Dr. Thomas

Ford, at Texaco's request.   Dr. Ford's report concluded that Duhon

had degenerative lumbar disc disease, which rendered him unable to

squat, stoop, bend, or lift more than twenty-five pounds. Dr. Ford

agreed with the two general practitioners that Duhon could not

return to work as a truck driver, but stated that Duhon was capable

of doing "sedentary to light work."

     In October 1991, in accordance with the terms of the plan, the

plan administrator and Texaco's chief medical officer reviewed all

of the medical evidence and determined that Duhon did not qualify

for continuing long-term disability payments beyond the initial

twenty-four month period.    Duhon appealed the decision to the plan

administrator, but the appeal was denied.     He then filed suit in

federal district court against Texaco and the plan administrator,

claiming a violation of ERISA.     Shortly after filing suit, Duhon




                                 -3-
moved for summary judgment.         The court granted Duhon's motion for

summary judgment, and additionally ordered Texaco to pay Duhon

$652.35 for each month since it terminated his disability payments,

plus interest, and to continue paying those benefits to Duhon every

month thereafter.     The court denied Duhon's request for attorney's

fees.     Texaco now appeals the summary judgment granted in favor of

Duhon.1

                                       II

     In     his   motion   for   summary    judgment,   Duhon   argued   that

additional information was required before the plan administrator

could properly determine that Duhon was not disabled and deny him

benefits under the plan.         Duhon pointed out that the plan required

the administrator to find that Duhon was or may have become

"qualified by training, education or experience" to perform "any

job."     He argued that the mere fact that a medical doctor had

concluded that he was capable of doing "sedentary to light work"

did not mean that he was "qualified by training, education or

experience" to do any such job.        The district court agreed, finding

that "Dr. Ford's statement that Duhon was physically capable of

performing sedentary work says nothing as to whether Duhon was or

could become qualified to perform such a job."            District Court's

Memorandum Ruling at 4.

     1
      Duhon cross-appeals the district court's denial of
attorney's fees. Because we find that the district court erred
in granting summary judgment to Duhon, his cross-appeal seeking
attorney's fees is denied.




                                      -4-
     Summary judgment is appropriate if "the record discloses `that

there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.'"

Rodriguez v. Pacificare, Inc., 980 F.2d 1014, 1019 (5th Cir. 1993)

(quoting Fed. R. Civ. P. 56(c)).            We review a district court's

grant of summary judgment de novo, FDIC v. Ernst & Young, 967 F.2d

166, 169 (5th Cir. 1992), and apply the same standard of review as

did the district court.      Rodriguez, 980 F.2d at 1019.             In this

case, where the district court's only task was to review the

decision of the plan administrator, the only summary judgment

question before the district court was one of law:              what was the

proper standard of review to be applied to the plan administrator's

denial of benefits, and, under that standard, should the denial be

upheld?

                                      III

                                       A

     We must begin our inquiry with a determination of the standard

of review to be applied to the plan administrator's denial of

benefits.   The plaintiff couched his argument, and the court

couched its holding, in terms that failed to speak to the standard

of review to be applied in analyzing the decision of the plan

administrator.      The   district     court    entered    summary   judgment

ordering benefits    be   paid   to    Duhon,   which     reversed   the   plan

administrator's denial of those benefits.               A denial of ERISA

benefits by a plan administrator challenged under § 502(a)(1)(B) of




                                      -5-
ERISA, 29 U.S.C. § 1132(a)(1)(B), is reviewed by the courts under

a   de    novo   standard   unless   the    plan   gives   the    administrator

"discretionary authority to determine eligibility for benefits or

to construe the terms of the plan."          Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80

(1989).      Challenges to the plan administrator's interpretation of

plan terms, like the one presented in this case, are reviewed under

an abuse of discretion or "arbitrary and capricious" standard if

the plan grants the administrator the authority to make a final and

conclusive determination of the claim.               Id.    Texaco correctly

asserts that its plan grants such authority to the administrator,

and, thus, the administrator's decision is subject to an abuse of

discretion standard of review.         The plan addresses the discretion

of the plan administrator in Article 8.04, which states that "[t]he

decisions of the Plan Administrator shall be final and conclusive

with respect to every question which may arise relating to either

the interpretation or administration of this Plan."               Additionally,

the section entitled "Claims Procedure" provides in part that

"[a]fter you undergo the necessary physical examination(s) and upon

review of all facts in the case, the Plan Administrator will make

the decision to authorize or deny payments."

         Applying the Bruch analysis to this language, it is clear that

the plan administrator has the discretionary authority to make a

final and conclusive determination of the claim.                 This court has

not imposed a linguistic template to satisfy this requirement,




                                      -6-
Wildbur v. ARCO Chemical Co., 974 F.2d 631 (5th Cir. 1992),

modified, 979 F.2d 1013 (5th Cir. 1992), but in this case the

plan's plain language provides that the administrator may make an

independent and final determination of eligibility. See also, Lowry

v. Bankers Life & Casualty Retirement Plan, 871 F.2d 522, 524-25

(5th Cir. 1989).

     Duhon argues that any discretion afforded Texaco under the

abuse of discretion standard of review is limited because of

Texaco's conflict of interest as both the administrator of its own

plan and the payor of the disability benefits.                   He cites Bruch,

where the Court stated that "if a benefit plan gives discretion to

an administrator or fiduciary who is operating under a conflict of

interest,   that       conflict    must     be   weighed    as   a   facto[r]   in

determining whether there is an abuse of discretion."                  Bruch, 489

U.S. at 115, 109 S.Ct. at 957 (citation and internal quotes

omitted).     Duhon contends that the conflict of interest in this

case is so great that the abuse of discretion standard of review

should be transformed into a de novo standard of review.                He states

in his brief, without more, that "[t]he history of this claim

indicates the conflict indeed influenced the decision and the

processing of the claim."

     We   fail    to    find   Duhon's      argument   on    this    point   fully

convincing.      Texaco's plan administrator was apparently also an

employee of the company.          Although we agree that this fact raises

the possibility of a conflict of interest, we will follow the




                                          -7-
Supreme Court's direction in Bruch and weigh this possible conflict

as a factor in our determination of whether the plan administrator

abused his discretion, instead of adopting ex cathedra Duhon's

suggestion of altering the applicable standard of review.                        Thus,

the    standard      of   review   we   apply     in   our   review   of   the    plan

administrator's decision is the arbitrary and capricious or abuse

of discretion standard, with due consideration given to the fact

that the plan administrator in this case was also apparently an

employee of Texaco and therefore possibly operated under a conflict

of interest.

                                             B

       We now turn to the merits of the arguments presented in this

appeal.          Duhon sought summary judgment arguing that the plan

administrator did not properly interpret the terms "qualified" for

"any" job, and that the evidence was insufficient to determine that

Duhon was qualified for any job.                 Thus, as the proponent of the

motion for summary judgment, Duhon had the burden of establishing

that       the    plan    administrator      abused    his   discretion     by     (1)

misinterpreting the terms of the plan or by (2) concluding that the

medical opinions           presented    by   Texaco    constituted    insufficient

evidence upon which to determine Duhon's disability status.                         We

conclude that Duhon established neither, and thus was not entitled

to summary judgment.2

       2
      Although the dissent seems to suggest otherwise, the
question of whether Texaco's plan administrator abused his




                                          -8-
     We begin our analysis with an examination of the evidence

before the plan administrator--as that evidence was presented to

the district court on summary judgment--at the time he made his

decision to terminate Duhon's benefits.        The district court was

presented with six documents; the parties stipulated that these six

documents were a "fair representation of all documents which

comprise[d] the administrative record."

     In order of presentation to the court, the first exhibit is a

report from Duhon's family physician, Dr. Ray, stating that Duhon

"will probably be permanently disabled from driving."        The second

document is a report from Dr. Lahasky, a family practitioner who

examined   Duhon   at   Texaco's   behest,   which   describes   Duhon's

limitations as:    "No driving of trucks.    No heavy lifting."    Third

is a letter from Dr. Ford, an orthopedist selected by Texaco who

saw Duhon subsequent to Drs. Ray and Lahasky, stating that Duhon

suffers from degenerative lumbar disc disease and cannot return to

work as a truck driver, but "is capable of doing sedentary to light

work."   The fourth exhibit is a medical report showing that Duhon

has two ruptured disks in his back.


discretion was expressly argued by Texaco. As our opinion notes,
whether underlying grounds are argued for supporting or rejecting
the plan administrator's decision, the ultimate question
presented in this case comes down to whether the denial of
Duhon's benefits was an abuse of discretion. The failure of the
parties to analyze properly the issues before the court is not
the same as failing to raise the issue. Nor are we required to
articulate the issues or read the statutory and case authority
presented in an appeal in precisely the same manner employed by
the parties.




                                   -9-
      The final two documents are evaluations by Dr. Robert Shaw,

Texaco's chief medical officer, and Dr. Burton Miller, another

Texaco staff doctor, of the medical findings of the three doctors

who   examined    Duhon.      Both       doctors    concur   in    the     plan

administrator's decision to discontinue disability benefits.                In

Dr. Miller's report, he notes that "[t]here is a distinct paucity

of physical findings and in fact, [Duhon] appears to have little

difficulty with flexion, extension or lateral bending." He further

refers to   the   only   document    that   Duhon    presented    before    the

administrator: a letter from his attorney, Mark Ostrich, declaring

that Duhon "cannot stand for more than 30 minutes, has a special

chair to sit in and...has only a high school education."                   Dr.

Miller stated in his evaluation:

      With respect to Mr. Ostrich's letter, I cannot find any
      medical reference to support his contention that the
      employee "cannot stand for more than 30 minutes" or that
      he requires a "special chair to sit in." Furthermore,
      his initial disability was only for his usual job,
      driving a truck, and this was the basis for his receiving
      benefits.    He was never found disabled from "doing
      sedentary to light work," as noted in the opinion of his
      orthopedic surgeon, Dr. Thomas B. Ford.

We emphasize that no other evidence--only the above exhibits from

the administrative record--was presented to the district court by

either Texaco or Duhon.     We further emphasize that it is on this

record that this appeal must be decided.

                                     C

      The plaintiff argues that the district court properly granted

summary judgment in his favor because there is no evidence in the




                                    -10-
administrative record illustrating that he can actually perform any

identifiable job.   The defendants counter that the plan does not

require the availability of an alternate job as a prerequisite to

termination of long-term disability benefits; they argue that the

medical evidence presented was more than sufficient to justify

their decision to terminate Duhon's benefits, especially in the

light of the abuse of discretion standard of review.

     The Formal Text of the Long-Term Disability Plan of Texaco

Inc., Article 5, deals with cessation of benefits under the plan.

It states in pertinent part:

     5.01    Payments under this Plan shall cease upon the
     earlier of:

     (d)   expiration of the 24-month period following the
     Employee's LTD separation date or upon any date
     thereafter, if the Employee is able to perform any job
     for which he or she is, or may become, qualified by
     training, education, or experience....

(Emphasis ours.)

     The question before us is whether the plan administrator

abused his discretion in interpreting the phrase "any job for which

he...is, or may become qualified" actually to include any job that

required only   "sedentary   to   light   work"   for   which   Duhon   was

otherwise qualified.   When we apply the applicable standard of

review to the administrator's determination, we cannot say that he




                                  -11-
abused his discretion in terminating Duhon's long-term disability

benefits.3

     The administrator possessed medical evidence indicating that

Duhon was able to perform "sedentary to light work."      The plan

clearly states that benefits will be discontinued after the twenty-

four month initial period "if the Employee is able to perform any

job for which he or she is, or may become, qualified by training,

education, or experience."   As Dr. Miller noted in his report, no

evidence has been presented that Duhon is incapable of performing



     3
      Some cases in our circuit that have analyzed questions
similar to the one before us today have suggested a two-step
analysis. First, the reviewing court determines the legally
correct interpretation of the plan. If the administrator did not
give the plan the legally correct interpretation, then the court
must determine whether the administrator's decision was an abuse
of discretion. See, e.g., Wildbur v. ARCO Chemical Co., 974 F.2d
631, 637 (5th Cir. 1992); Jordan v. Cameron Iron Works, Inc., 900
F.2d 53, 56 (5th Cir. 1990), cert. denied, 498 U.S. 939, 111
S.Ct. 344, 112 L.Ed.2d 308 (1990); Dennard v. Richards Group,
Inc., 681 F.2d 306, 314 (5th Cir. 1982). These cases further
suggest factors the reviewing court may consider when
appropriate. However, the reviewing court is not rigidly
confined to this two-step analysis in every case. As noted in
Wildbur v. ARCO Chemical Co., 974 F.2d at 637, "[a]pplication of
the abuse of discretion standard may involve [the] two-step
process." (emphasis supplied). In this case, the administrator
concluded that Duhon was able to work. The record contains
evidence of Duhon's age, education, work experience, and physical
capabilities and limitations. On this record, the administrator
did not abuse his discretion, especially in the light of the fact
that Duhon -- the plaintiff and the claimant -- presented no
evidence that rebuts or otherwise challenges the evidence
demonstrating that he was qualified for sedentary jobs that
persons with high school educations can perform. Thus, on the
basis of this record, because the administrator clearly did not
abuse his discretion, it is unnecessary for the court to conduct
the two-step analysis.




                               -12-
any job; the evidence before the plan administrator--and the

district court--merely stated that he is unable to return to his

former position as a truck driver.       It was not an abuse of

discretion for the plan administrator to conclude that a sixty-five

year old man with a high school diploma and plenty of experience in

the work-a-day world, although unable to squat, stoop, bend, or

lift more than twenty-five pounds, would be able to perform the

functions of some identifiable job.     Indeed, to find otherwise

would be blindly and deliberately to ignore a common -- and

uncontested -- truth:   people in their sixties and seventies who

have similar physical and job limitations established by this

record are employed and employable throughout the workplace today.

                                D

     We now turn to the plaintiff's closely aligned argument that

the evidence of disability was insufficient because the testimony

of a vocational rehabilitation expert was required, instead of that

of a medical doctor, to determine whether he was capable of

performing "any job for which he...is, or may become, qualified by

training, education, or experience."   The district court, relying

on Gunderson v. W.R. Grace & Co. Long Term Disability Income Plan,

874 F.2d 496, 499 (8th Cir. 1989), found that the report of a

vocational rehabilitation expert, although "perhaps . . . merely an

additional formality given Duhon's background and capacity,"4 was


     4
      District Court's Memorandum Ruling, p. 4 n.2.




                               -13-
nonetheless necessary in this case. In short, the argument we turn

to address is whether the plan administrator abused his discretion

in determining, without expert testimony, that Duhon was not

permanently disabled.

     We are aware that the circuits are split on the issue of

whether a plan administrator may be required to obtain vocational

rehabilitation evidence before he makes a final determination of

disability.        In Gunderson, the Eighth Circuit reviewed a plan

similar to Texaco's and found that "before terminating benefits,

the Plan should have obtained a vocational expert's opinion to

determine if Mr. Gunderson is presently capable, in light of his

physical impairment, to perform `any occupation'...."                   We agree,

however, with the reasoning of then-Judge Ruth Bader Ginsburg

writing for the District of Columbia Circuit in Block v. Pitney

Bowes Inc., 952 F.2d 1450 (D.C. Cir. 1992).

     In Block, the plaintiff complained that the administrator

presented     no    vocational     evidence    of    jobs   for   which   he    was

"reasonably        fitted   by    education,    experience,       capability     or

training."5        Block, 952 F.2d at 1455.          The court found that no

provision of the plan in question required Pitney Bowes, "as a

condition     of    terminating    Block's     compensation,      to   ensure   the

availability of an alternative job."                Id. (Citations & internal

     5
      We should note that in Block, as in most of these cases, it
was the plan administrator and not the claimant who moved for
summary judgment and who thus had the concomitant burden of
proof.




                                       -14-
quotes omitted.)        The court concluded that "[t]he medically-

indicated limitations--[Block could work a full day subject to

limitations on standing (two hours), walking, lifting (20 pounds),

and bending (four out of eight hours)]--were not so great, nor

Block's occupation so specialized, that the Committee could be

called unreasonable for refusing to conclude that sales positions

in the D.C. area for which Block could qualify were scarce."          Id.

     Similarly,    we    will   not   hold     that   absent   vocational

rehabilitation evidence a plan administrator necessarily abuses his

discretion in making a final determination of disability. Instead,

we will allow the reviewing court to decide, on a case-by-case

basis, whether under the particular facts the plan administrator

abused his discretion by not obtaining the opinion of a vocational

rehabilitation expert.

     In this case, we find that it was not an abuse of discretion

for the plan administrator to conclude that Duhon was capable of

performing some type of occupation without obtaining the opinion of

a vocational rehabilitation expert.6         Duhon was a sixty-five year

     6
      As we noted earlier, pursuant to the Supreme Court's
direction in Bruch, we have considered the possible conflict of
interest on the part of the plan administrator in our
determination of whether he abused his discretion in terminating
Duhon's benefits. In short, the presence of a possible conflict
does not affect the outcome in this case. Duhon has offered no
evidence or grounds for suspicion that the decision was
improperly influenced by the fact that the administrator was in
some fashion an employee of Texaco; he adduced no evidence of the
financial and employment arrangements between the administrator
and Texaco that would illuminate the nature of the alleged
conflict. In any event, on the record before us, the merits of




                                  -15-
old man in overall good health with a high school diploma and

moderate restrictions on his physical activity.                     The plan only

required a finding that Duhon could perform "any job for which he

is,   or    may    become,       qualified       by   education,       training,    or

experience."      Given    this      undemanding      language   and    the    medical

evidence in this case, the plan administrator could competently

determine    disability         without    vocational     testimony.           Texaco's

disability benefits plan is not a form of employment insurance; it

was not necessary under this plan that the administrator "insure

the   availability        of    an    alternative      job"   for      Duhon    before

terminating his benefits.

      Additionally, we note that it was Duhon who moved for summary

judgment in this case, and, thus, it is Duhon who has the burden of

illustrating that he is entitled to judgment as a matter of law.

The summary judgment evidence in this administrative proceeding

showed that he chose not to present any evidence whatsoever in

support    of     his   claim     that    he   was    "totally   and     permanently

disabled."      Instead, he relied only on his attorney's unsupported

statements that Duhon was unable to stand for more than 30 minutes

and needed a special chair in which to sit.                   At the time of the

administrative proceeding, Duhon was aware of Dr. Ford's opinion

that Duhon was in fact "capable of sedentary to light work."                        He



this case are not so close that the possibility of a conflict of
interest on the part of the administrator could be a
determinative factor.




                                          -16-
had the opportunity to present evidence to refute this opinion or

call it into question, but chose not to do so.

      As the Fourth Circuit has noted, "Congress intended plan

fiduciaries, not the federal courts, to have primary responsibility

for claims processing."      Makar v. Health Care Corp., 872 F.2d 80,

83   (4th Cir.    1989).    Claimants     must   present   their   strongest

available case to the plan administrator, because the primary

decision is made at that point.           "Congress' apparent intent in

mandating these internal claims procedures was to minimize the

number    of   frivolous   ERISA   lawsuits;     promote   the     consistent

treatment of benefit claims; provide a nonadversarial dispute

resolution process; and decrease the cost and time of claims

settlement." Makar, 872 F.2d at 83. Duhon's attempt to circumvent

congressional mandate by failing fully to argue his claim and

provide   supporting   evidence    during    the   administrative     appeal

process, in the hopes that his case could be decided instead in the

federal courts, must fail.




                                   -17-
                                           IV

       In sum, after a review of the district court's decision, we

find       that    it   erred   in    granting    Duhon's   motion   for   summary

judgment.7          We therefore REVERSE the district court's grant of

summary judgment and REMAND the case to the district court for

further proceedings not inconsistent with this opinion.8

                                                          REVERSED and REMANDED.




JOHNSON, Circuit Judge, Dissenting:

       Were the issue before this Court and the facts within this

case       as     the   majority     portrays    them,   this   writer   would   be

constrained to concur. However, Texaco has not asked this Court to

determine whether its plan administrator abused his discretion by

finding that Mr. Duhon was, in fact, qualified or could become

qualified to perform a job.               Texaco instead asks this Court to

       7
      We also note that the district court erred in the relief it
granted to Duhon. The district court, in its role as a reviewing
court, was in no position to award disability benefits to him
when it merely found that the evidence was insufficient to
support a finding of disability, and not that the plan terms
required the granting of benefits to Duhon as a matter of law.
Even if the district court had been correct in its finding that
the plan administrator had insufficient evidence before him to
determine whether Duhon met the plan definition of disability,
the appropriate relief in this instance would have been to remand
the case to the plan administrator with instructions to take
additional evidence.
       8
      Texaco did not move for summary judgment and consequently
it would be procedurally inappropriate for us to direct judgment
in favor of Texaco in this opinion.




                                          -18-
decide that the plan administrator was not required to make such a

finding.    In Texaco's view, as long as an employee is physically

capable of performing a job——even if unqualified and incapable of

becoming qualified to perform that job——he is no longer disabled

under Texaco's Long Term Disability Plan.                  The majority ignores

this, the true issue, before the Court.               It creates another, less

defensible, issue; ignores evidence in the administrative and

appellate record; and disregards Fifth Circuit precedent which, if

applied, compels affirmance of the district court's decision. This

writer cannot concur and therefore respectfully dissents.

     By disregarding Texaco's point of error here, the majority

reviews    this   case   as   if   a   factual      finding   were   in    dispute.

However, there is no disputed fact finding at issue in this case.

Texaco's plan     administrator        did    not   find   that   Mr.     Duhon   was

actually qualified or could become qualified to perform a job.9

Texaco's sole claim is that it correctly interpreted the Long Term

Disability Plan as requiring no finding that an employee is or can

become qualified to perform work.

     This Court has specifically set out a two-step process for

reviewing plan-interpretation cases.                Contrary to the majority's

portrayal of Wildbur v. ARCO Chemical Co., the application of this

process is not discretionary.            Fifth Circuit case law——which is


     9
      Even if there were such a finding——and there is not——Texaco
waived any alleged error with respect to that finding, for it did
not appeal on that ground.




                                       -19-
binding    on    this   Court——makes   it    abundantly    clear    that     the

application of the two-step process in plan-interpretation cases is

mandatory.      Courts reviewing an administrator's interpretation of

a plan must first determine whether the plan administrator provided

a   legally     correct     interpretation    of   the    plan.         If   the

administrator's interpretation is not legally correct, courts must

then   determine    whether    the   administrator   abused       his   or   her

discretion in interpreting the plan.           Jones v. SONAT, Inc., 997

F.2d 113, 115, 116 (5th Cir. 1993) ("In analyzing [the] Committee's

interpretation of [the plan], we must first decide whether the

Committee's interpretation of the plan was `legally correct.' . .

. Having decided that the Committee's interpretation was `legally

incorrect,' we must next determine whether the Committee abused its

discretion." (emphasis added)); Jordan v. Cameron Iron Works, Inc.,

900 F.2d 53, 56 (5th Cir.), cert. denied, 498 U.S. 939 (1990)

("First,      the   court     must   determine     the    legally       correct

interpretation of the Plan's provisions. . . . If the administrator

has not given a plan the legally correct interpretation, the court

must then determine whether the administrator's interpretation

constitutes an abuse of discretion." (emphasis added, quotation

marks deleted)); Batchelor v. International Board of Electric

Workers Local 861 Pension and Retirement Fund, 877 F.2d 441, 444-45

(5th Cir. 1989) ("First, the court must determine the [legally]

correct interpretation of the Plan's provisions. . . . [Then w]e

must determine whether the [administrators'] interpretation rises




                                     -20-
to an abuse of discretion." (emphasis added; quotation marks

deleted)).10    Cases decided prior to Firestone Tire and Rubber Co.

v. Bruch, though reviewed under the arbitrary and capricious

standard, also determined that application of the two-step process

was mandatory.       See, e.g., Denton v. First National Bank, 765 F.2d

1295, 1304 (5th Cir. 1985) ("First, the court must determine the

correct interpretation of the Plan's provisions. Second, the court

must determine whether the Plan administrators acted arbitrarily or

capriciously." (emphasis added)).

     To establish the legally correct interpretation of a benefit

plan, courts are to consider 1) whether the plan administrator has

given     the   plan        a     uniform      construction,   2)   whether   the

interpretation comports with a fair reading of the plan, and 3)

whether different interpretations of the plan will result in

unanticipated costs.              Jordan, 900 F.2d at 56; Wildbur v. ARCO

Chemical Co., 974 F.2d 631, 637-38 (5th Cir. 1992).                   We have no

information     as     to       the   Texaco    plan   administrator's   previous

interpretations of the benefit plan.               However, it seems clear——and

the majority apparently agrees——that Texaco's Long Term Disability

Plan requires Texaco to prove two things: Texaco must prove that

the employee in question is physically capable of performing a job


     10
      The majority's explanation for disregarding these
cases——asserting that the plan administrator did not abuse his
discretion in finding that Mr. Duhon was or could become
qualified to perform a job——is misleading. As explained earlier,
the administrator made no such finding.




                                            -21-
("physical-capability element"), and it must prove that "he or she

is, or may become, qualified [to perform a job] by training,

education, or experience" ("qualification element").11

     Texaco completely ignores the qualification element in the

plan's "permanent total disability" definition.     It does not argue

that the "plan does not require the availability of an alternate

job as a prerequisite to termination of long-term disability

benefits," as the majority asserts.         Maj. Op. at 12.    Texaco

instead argues that its plan does not contain a qualification

element at all.     Texaco proffers one, and only one, point of error:

     The District Court erred in holding that the Texaco Long-
     Term Disability Plan required the determination of
     whether plaintiff was or could become qualified to
     perform work for which he was physically capable of
     performing prior to any termination of disability
     benefits under the Plan.12 (Emphasis added).

     11
          Article 2.07 of the plan reads:

     "Permanent total disability" or "disabled" means that
     during the first 24 months following an Employe's LTD
     separation date, the Employe is unable to perform the
     normal duties of his or her regular or comparable job
     assignment with the Company. Thereafter, "disabled" or
     "permanent total disability" means the Employe is
     unable to perform any job for which he or she is, or
     may become, qualified by training, education, or
     experience.


     12
      Hence, the majority postures the issue it addresses. The
plan administrator did not interpret "the phrase `any job for
which he . . . is, or may become qualified' actually to include
any job that required only `sedentary to light work.'" Maj. Op.
at 12 (emphasis in original). Texaco makes clear the fact that
the administrator interpreted the qualification phrase as being
completely non-existent.




                                  -22-
Texaco, Inc. Brief at iv, 16.

     Texaco's deletion of the second element——one of only two

elements   in   the    "permanent   total       disability"   definition——is

anything but a "fair reading" of the plan.             Additionally, Texaco

has not claimed that administering the plan under the correct

construction will result in the expenditure of unanticipated costs.

Thus, under Jordan and Wildbur, Texaco's interpretation of the plan

is legally, indeed patently, incorrect. It directly conflicts with

the clear language in the Long-Term Disability Plan by rendering

totally nugatory a required element in the plan.

     A legally incorrect interpretation does not automatically

signal an abuse of discretion.      Courts must consider the following

in reviewing plan interpretations for abuse of discretion:                 1)

whether the plan is internally consistent under the administrator's

interpretation,   2)    the   existence    of    any   relevant   regulations

formulated by appropriate administrative agencies, and 3) the

factual background of the plan administrator's determination and

any inferences of a lack of good faith.           Wildbur, 974 F.2d at 638.

Additionally, "[w]hen [the administrator's] interpretation of a

plan is in direct conflict with express language in a plan, this

action is a very strong indication of arbitrary and capricious

behavior."   Id. (quoting Batchelor v. International Brotherhood of

Electrical Workers Local 861 Pension and Retirement Fund, 877 F.2d

441, 445 (5th Cir. 1989)).      Moreover, unless a plan administrator

shows that his interpretation benefits all plan participants, his




                                    -23-
reasonable, but incorrect, interpretation of the plan constitutes

an abuse of discretion if it advances the fiduciary's interest at

the expense of the affected beneficiary.                   Id; Brown v. Blue Cross

and Blue Shield of Alabama, Inc., 898 F.2d 1556, 1566-67 (11th Cir.

1990), cert. denied, 498 U.S. 1040 (1991); accord Jones v. SONAT,

Inc., 997 F.2d 113, 116 (5th Cir. 1993).

      In my view, the application of each of these rules to the

facts of this case points emphatically to an abuse of discretion.

The administrator's omission of an entire element of the permanent

disability    definition     is   completely          inconsistent     and    directly

conflicts    with    the    plain    language         of    the    plan.      Texaco's

interpretation is therefore anything but reasonable.                       Even if such

a construction were reasonable——and it certainly is not——a finding

of   abuse   of   discretion      would       still    be    inevitable,       for   the

administrator's      construction        of     the     plan      promotes    Texaco's

interests    at   the   expense     of   Mr.    Duhon.         The   administrator's

interpretation      makes   Texaco's       job    of       proving    no     disability

inordinately easier and therefore raises an inference of a lack of

good faith.

      Further, as the majority acknowledges, a possible conflict in

interest exists here.         This Court faced a similar conflict-in-

interest situation in Jones v. SONAT, Inc.                     There, the plaintiff

sued his employer, Southern Natural Gas Co. ("SONAT"), challenging

SONAT's denial of disability benefits.                After determining that the

benefit review committee had incorrectly construed the plan, this




                                         -24-
Court relied upon three facts to decide that SONAT had abused its

discretion:     1) the members of the benefit review committee were

all SONAT corporate officers, 2) the committee's interpretation of

the plan reduced benefit outlays and therefore advanced SONAT's

interests at the employee's expense, and 3) the committee failed to

properly justify its interpretation of the plan by showing that

plan participants would be benefitted thereby.              997 F.2d at 116.

     The facts in Jones are strikingly similar to the facts in this

case.     The plan administrator here was a Texaco employee.13               Also,

as in Jones, Texaco's interpretation of the plan advances its

interests of reducing benefit outlays at the expense of disabled

employees:      That    interpretation     allows    Texaco   to     discontinue

disability payments to those employees who, though physically

capable of performing a job, are unqualified and unable to become

qualified to perform a job.        Finally, Texaco has not attempted to

justify its     interpretation     of   the   plan    by   showing    that    plan

participants are benefitted by the deletion the qualification

element.      Thus,    under   Jones,   Wildbur,     and   Brown,    Texaco   has

undoubtedly abused its discretion in interpreting the plan.                   The

district court therefore correctly granted Mr. Duhon's motion for

summary judgment.


     13
      In fact, the Long-Term Disability Plan specifically states
that "[t]he Company shall, in any case, determine what
constitutes permanent and total disability, when the same
commenced, and at any time reverse or alter any such
determination." (Emphasis added).




                                    -25-
     Had Texaco sufficiently proved that Mr. Duhon was or could

have become qualified to perform a job——and appealed on that

ground——this writer might agree with the majority's disposition of

this case.   However, Texaco could never have sufficiently proved

that Mr. Duhon was or could become qualified to perform a job on

the record before the plan administrator.    The record belies the

majority's conclusion that Mr. Duhon is "able to perform the

functions of some identifiable job."14 Maj. Op. at 14. Mr. Duhon's

family physician and one of Texaco's own physicians concluded

without contradiction that Mr. Duhon was physically and permanently

incapable of performing "any job for which he is qualified."15

Hence, Texaco, bearing the burden of proof on both the physical-

capability element and the qualification element, was required to

prove that Mr. Duhon could have become qualified to perform a job.




     14
      The record also belies the majority's "emphasis" that only
six exhibits were made a part of the administrative record. The
administrative record included at least 18 exhibits. It may have
contained even more, for Texaco was not forthcoming in turning
over the administrative record to Mr. Duhon. In fact, counsel
for Mr. Duhon complained several times to the district court
about Texaco's refusal to comply with his requests for the
administrative record. The appellate record does not
affirmatively indicate that Texaco completely complied with those
discovery requests.
     15
      Interestingly, after reviewing the conclusions of all
three doctors consulted here, Texaco's own health department
advised Texaco to continue Mr. Duhon's long-term disability
benefits.




                               -26-
     However, Texaco failed——indeed refused——to show that Mr. Duhon

could have    become    so   qualified.   Contrary   to   the   majority's

rendition of the facts, the record provides no information whatever

as to Mr. Duhon's prior experience in the "work-a-day world" other

than the fact that he drove a truck for Texaco from July 29, 1985,

to March 1, 1989.      All three doctors consulted in this case agreed

that Mr. Duhon could no longer drive trucks, so the record contains

no evidence that Mr. Duhon is physically capable of performing a

job which he once performed in the "work-a-day" world.            Further,

while it is true that Mr. Duhon is a high school graduate, the fact

of the matter is that many moons have passed since his graduation

in 1947.16   Nothing in the record reveals that Mr. Duhon ever used

or honed any of the skills he gained in school——whether reading,

writing, or otherwise. Yet the majority presumes that Mr. Duhon——a

man with limited work experience and limited education, who cannot

bend, stoop, squat, or lift more than twenty-five pounds,17 who

cannot stand for longer than thirty minutes at a time and requires

a special chair for sitting,18 and who is physically incapable of

     16
      Texaco did not even direct the district court's attention
to Mr. Duhon's high school education. Texaco instead rested its
case in the district court, as it has in this Court, on its
position that the benefit plan does not require proof that an
employee is or can become qualified to perform a job.
     17
      Dr. Lahasky, a Texaco physician, determined that Mr. Duhon
could not lift anything at all.
     18
      The majority correctly notes that no medical records
support Mr. Duhon's statement that he cannot stand for longer
than 30 minutes and requires a special chair for sitting.




                                   -27-
performing any job for which he is qualified——is "employable

throughout the work place today."         That presumption is, at best,

specious.   This writer is more than confident that senior citizens

are engaged in fruitful employment throughout this nation; however,

those   citizens   are   not   hindered   by   limitations——physical   and

otherwise——which Mr. Duhon endures.

     Mr. Duhon properly pointed to the lack of evidence of the

qualification element to the district court, and Texaco did not

contend that such evidence existed.            Under the Supreme Court's

clear mandate in Celotex Corp. v. Catrett, Mr. Duhon sufficiently

met his burden of proving that no genuine issue of material fact

existed. 477 U.S. 317, 325 (1986) (holding that "the burden on the

moving party [in summary judgment cases] may be discharged by

`showing'——that is, pointing out to the district court——that there

is an absence of evidence to support the nonmoving party's case"

(emphasis added)).       Thus, the district court correctly granted

summary judgment in Mr. Duhon's favor.           That decision should be

affirmed.




However, Texaco, which shouldered the burden of proving that Mr.
Duhon was not permanently disabled, proffered no evidence which
rebutted Mr. Duhon's claim. His claimed standing and sitting
limitations are therefore undisputed.




                                   -28-
