                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 14, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                           FOR THE TENTH CIRCUIT


    STEVEN LUCAS, an individual,

                Plaintiff!Appellant,

    v.                                                  No. 11-6056
                                                (D.C. No. 5:10-CV-00206-M)
    LIBERTY LIFE ASSURANCE                             (W.D. Okla.)
    COMPANY OF BOSTON, a foreign
    insurance company,

                Defendant!Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, GORSUCH, and MATHESON, Circuit Judges.



         Steven Lucas filed suit against Liberty Life Assurance Company of Boston,

asserting that the company violated the Employee Retirement Income Security

Act of 1974 (ERISA) when it denied his claim for long term disability benefits.

Finding that the denial of benefits was not arbitrary and capricious, the district



*
 After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
court entered judgment in favor of Liberty Life. Mr. Lucas now appeals, and we

affirm.

          In 2004, Mr. Lucas was an employee of the Coca-Cola Company. He

suffered a work-related injury requiring spinal surgery and, after a short period

back on the job, stopped working. He filed a claim for long-term disability

benefits in August 2005.

      Under Coca-Cola’s long-term disability plan, a plan participant is

considered disabled and is eligible for 24 months of benefits when he is “unable

to perform the Material and Substantial Duties of his Own Occupation.” Aplt.

App., Vol. 1 at 6 (emphasis added). Mr. Lucas received benefits under this

provision from August 2005 through August 2007. To be considered disabled and

eligible to receive benefits after this first 24 months, the participant must be

“unable to perform, with reasonable continuity, the Material and Substantial

Duties of Any Occupation.” Id. (emphasis added).

      Liberty Life both administers and insures Coca-Cola’s long-term disability

benefits plan. Under the plan, it has discretionary authority to determine

eligibility for benefits. In September 2007, Liberty Life terminated Mr. Lucas’s

benefits after determining that he was not eligible for continued benefits under the

“any occupation” provision—while he might not be capable of performing his

own occupation, he was capable of performing some occupation comparable to his

former position. Mr. Lucas filed an administrative appeal with Liberty Life, but

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the company upheld the denial of benefits. In the fall of 2008, Mr. Lucas began

working as a teacher at a university. He held that position through the school

year.

        Mr. Lucas filed suit against Liberty Life in October 2008. The district

court dismissed that suit after the parties determined that one of the medical

reports in the administrative record was not the final version of the report and

Liberty Life agreed to re-open the administrative appeal. On further review,

Liberty Life again upheld its denial of benefits and Mr. Lucas again filed suit.

The district court entered judgment in favor of Liberty Life and this appeal

followed.

        Before this court, Mr. Lucas alleges multiple errors by the district court.

However, on an appeal from denial of disability benefits, “[w]e review a plan

administrator’s decision to deny benefits to a claimant, as opposed to reviewing

the district court’s ruling.” Holcomb v. Unum Life Ins. Co. of Am., 578 F.3d

1187, 1192 (10th Cir. 2009). Because Liberty Life has discretionary authority

under the plan, we review its determination for abuse of discretion—asking only

whether the decision is “arbitrary and capricious.” See id.; Weber v. GE Group

Life Assur. Co., 541 F.3d 1002, 1010 n.10 (10th Cir. 2008) (in the ERISA context,

the terms “abuse of discretion” and “arbitrary and capricious” are used

interchangeably).




                                           -3-
      We agree with the district court that Liberty Life’s decision to deny

continued benefits to Mr. Lucas was not arbitrary and capricious. A decision is

“arbitrary and capricious” only if it lacks a “reasoned basis.” Adamson v. Unum

Life Ins. Co. of Am., 455 F.3d 1209, 1212 (10th Cir. 2006). And where there is

substantial evidence to support the decision we will generally uphold the denial of

benefits. See id. In this case, Liberty Life had a reasoned basis, supported by

substantial evidence, for denying the claim. Liberty Life reviewed Mr. Lucas’s

claim three times. Each time it issued a decision letter with extensive citation to

medical records and reports and its own investigative surveillance. These cited

facts adequately support its position that Mr. Lucas was able to engage in other

full-time work despite his impairment. See Aplt. App., Vol. 6 at 2073-2085; id.,

Vol. 1 at 103-110; id. at 95-101.

      Liberty Life had reports from five physicians concluding that Mr. Lucas

had at least a sedentary, full-time work capacity. Additionally, Liberty Life

requested an independent neuropsychological review to address the possibility

that Mr. Lucas might suffer cognitive impairment due to his pain medication

regimen. Dr. Mickey Ozolins met with Mr. Lucas over the course of three days to

conduct this review. Dr. Ozolins reported that throughout the evaluation

Mr. Lucas showed clear signs of symptom exaggeration and feigning consistent

with malingering. Dr. Ozolins concluded that Mr. Lucas was capable of

performing sedentary to medium-duty work activities.

                                         -4-
      Liberty Life also relied on records from Mr. Lucas’s primary treating

physician, Dr. Bruce Mackey. Though Dr. Mackey stated that Mr. Lucas was

permanently and totally disabled, his records included notes indicating that

Mr. Lucas was not as restricted as he claimed. Liberty Life further noted that

Dr. Mackey often refused to respond to requests from its independent physicians

to discuss Mr. Lucas’s condition. On these facts, Liberty Life concluded that

there was insufficient objective medical evidence to establish that Mr. Lucas’s

condition precluded him from performing jobs consistent with his skills.

      Liberty Life acknowledged that Mr. Lucas had been approved for Social

Security disability income benefits and noted that it had fully considered that

ruling. But, as Liberty Life explained, the Social Security decision “does not

determine entitlement to benefits under the terms and conditions of the [long-term

disability] policy.” Aplt. App., Vol. 1 at 101. Liberty Life went on to note that it

had

      obtained and considered Dr. Smith’s Independent Medical
      Examination, Dr. Ozolins’ Neuropsychological Evaluation, the
      medical review by Dr. Klein and multiple additional evaluators, as
      well as surveillance reports and video, and deposition transcripts that
      were not considered by the Social Security Administration in its
      determination process.

Id.

      Finally, Liberty Life noted that Mr. Lucas had actively applied for full-time

teaching positions and, during the same time, was taking doctoral classes in


                                         -5-
Business Management. He ultimately secured a university teaching position.

Liberty Life admitted that it was “unclear” whether Mr. Lucas was laid off or

resigned from his position at the university, but emphasized that Mr. Lucas “did

hold a full time teaching position from August 2008 through [May 2009].” Id. at

100.

       Because Liberty Life is both administrator and insurer of the plan, we

recognize that it has an inherent conflict of interest. See Pitman v. Blue Cross &

Blue Shield of Okla., 217 F.3d 1291, 1296 and n.4 (10th Cir. 2000). This conflict

is one factor we consider in determining whether Liberty Life’s decision was

arbitrary and capricious. See Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105,

115-117 (2008). However, we agree with the district court that this conflict

should be given limited weight in this case.

       As the Supreme Court explained in Glenn, the conflict-of-interest factor

“should prove less important (perhaps to the vanishing point) where the

administrator has taken active steps to reduce potential bias and to promote

accuracy.” 554 U.S. at 117. Here, Liberty Life undertook extensive measures to

investigate whether Mr. Lucas was able to perform the duties of a gainful

occupation for which he was reasonably suited. Liberty Life repeatedly requested

and reviewed the medical records from Mr. Lucas’s healthcare providers. It also

took steps to reduce its inherent bias by requesting five independent physician

reviews of Mr. Lucas’s medical records and two independent physician

                                         -6-
examinations of Mr. Lucas. See Holcomb, 578 F.3d at 1193 (recognizing that an

administrator can reduce its bias by using independent physicians). Moreover,

Liberty Life had its independent physicians contact Dr. Mackey in an effort to

discuss Mr. Lucas’s condition.

      The fact that Mr. Lucas’s treating physician drew a conclusion contrary to

Liberty Life’s determination does not mean that Liberty Life’s decision was

unreasonable. Liberty Life has no obligation “to accord special weight to the

opinions of a claimant’s physician; nor may courts impose on plan administrators

a discrete burden of explanation when they credit reliable evidence that conflicts

with a treating physician’s evaluation.” Black & Decker Disability Plan v. Nord,

538 U.S. 822, 834 (2003). Liberty Life’s decision is supported by substantial

evidence, and Mr. Lucas has failed to show that it was arbitrary and capricious.




                                        -7-
Accordingly, the judgment of the district court is affirmed. 1



                                                     Entered for the Court



                                                     Neil M. Gorsuch
                                                     Circuit Judge




1
  Mr. Lucas contends that the district court erred in not ruling on his claim that
his benefits should be reinstated during the time he was pursuing administrative
appeals of the initial denial. In his complaint before the district court Mr. Lucas
made this claim in a two-sentence paragraph with no citation to legal authority or
to any language in the long-term disability plan authorizing payment of benefits
while a claim is under review. Aplt. App., Vol. 10 at 3338. Accordingly, he
failed to make this claim adequately before the district court. See Fed. R. Civ. P.
8(a). Even if he had, on appeal he offers no authority to support his position that
he is entitled to benefits while his claim was under review, particularly when his
claim was ultimately unsuccessful. We decline to consider the issue. See United
States v. Banks, 451 F.3d 721, 728 (10th Cir. 2006) (declining to consider
argument not supported by pertinent authority).

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