                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                         IN THE UNITED STATES COURT OF APPEALS
                                                                                         December 2, 2005
                                  FOR THE FIFTH CIRCUIT
                                 _________________________
                                                                                     Charles R. Fulbruge III
                                                                                             Clerk
                                           No. 04-20933
                                    _________________________

LOIS ALBERT,

                                                                                   Plaintiff-Appellant,

versus

LIFE INSURANCE COMPANY OF
NORTH AMERICA,

                                                                                  Defendant-Appellee.

                       _____________________________________________

                           Appeal from the United States District Court
                                for the Southern District of Texas
                                       (No. 4:03-CV-1841)
                       _____________________________________________

Before BARKSDALE and CLEMENT, Circuit Judges, and ENGELHARDT, District Judge.*

PER CURIAM:**

         Plaintiff-Appellant Lois Albert (“Albert”) appeals from the district court’s order granting

summary judgment in favor of Defendant-Appellee Life Insurance Company of North America

(“LINA”). Finding no error, we affirm.

                                     I. FACTS AND PROCEEDINGS



         *
          District Judge of the Eastern District of Louisiana, sitting by designation.
         **
          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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.


                                                  -1-
       This disput e is governed by the Employee Retirement Income Security Act of 1974

(“ERISA”). The facts of this case are largely uncontested. The disputes on appeal involve the

appropriate standard of review to be applied to LINA’s decision to deny Albert long-term coverage

under her employer’s Long Term Disability Plan (the “Plan”) and whether the record supported

LINA’s decision.

A.     Albert’s Employment and Illness

       Albert worked as a tax supervisor at American General for approximately twenty-five years.

Her occupation required that she engage in “frequent reaching, handling, fingering, talking, hearing

and near acuity, with occasional lifting of up t o 10 lbs,” during a normal, forty-hour work week.

Albert participated in the Plan, which was administered and underwritten by LINA.

       In 1994, Albert underwent surgery to remove a portion of her right lung. Albert alleges that,

following this event, she began to suffer a number of medical maladies with symptoms including dry

mouth, difficulty sleeping, shortness of breath, and general discomfort. Albert contends that, during

the years that followed, she was diagnosed and treated for lupus, chronic fatigue syndrome,

fibromyalgia, and asthma. In August 2000, Albert went on medical leave. Shortly thereafter, in

October 2000, Albert returned to work. Her condition worsened again, and her treating physician,

Dr. Buencamino, refused to approve her return to work.

B.     Albert’s Application for Benefits

       After her second departure from work, Albert applied for and received short-term disability

benefits under the Plan. She also applied for long-term disability benefits, but LINA denied her

application. Albert appealed this decision, and, on October 10, 2001, LINA reversed the decision

and approved Albert’s claim.


                                                -2-
       In accordance with the terms of the Plan, LINA informed Albert that the approval of her claim

required proof of Albert’s ongoing disability. Four months later, LINA scheduled a battery of tests

for Albert by LINA-selected expert s. After reviewing the test results, LINA again reversed its

decision and, on May 13, 2002, disco ntinued her long-term disability benefits. Albert challenged

LINA’s decision by bringing suit in federal district court claiming LINA’s final decision was arbitrary

and capricious and in violation of the Plan’s fiduciary duty to its members. The parties cross-moved

for summary judgment, and the district court granted summary judgment in LINA’s favor.

C.     The Medical Evidence

       LINA originally denied Albert’s claim based on medical evidence and test results from

Albert’s treating physician, Dr. Buencamino. LINA concluded that its review of the records of

Albert’s doctor failed to demonstrate “a degree of disability . . . that would prevent [Albert] from

performing [her] occupation as a Tax Compliance Supervisor.” As per the terms of the Plan, LINA

determined that Albert was unqualified to receive long-term disability benefits because she was

neither “unable to perform all the material duties of . . . her Regular Occupation or a Qualified

Alternative” nor “unable to earn 80% or more of . . . her Indexed Covered Earnings.” Albert’s

original appeal of the administrative decision and LINA’s subsequent reversal were based on a

reconsideration of this same evidence. The evidence presented at that stage also included reports

from other doctors whom Albert had consulted at various points throughout her treatment.

       LINA’s final reconsideration of Albert’s qualification for long-term disability benefits was

based on three distinct inquiries by its own experts. First, Albert underwent a Functional Capacity

Examination (“FCE”) with evaluator Katherine Hughes, which included an hour-long interview and

almost four hours of interaction. Hughes determined that Albert’s performance in the FCE


                                                 -3-
demonstrated that she was qualified to perform her job as a tax analyst. Second, Dr. George

Kevorkian performed an Independent Medical Examination (“IME”), which included a physical

examination and a review of all of Albert’s medical records. Dr. Kevorkian concluded that there was

”absolutely no physical reason or obvious cognitive reason why [Albert] cannot perform her job

duties.” Third, Dr. David Allan conducted a “peer review” of these two assessments and all of

Albert’s medical records. Dr. Allan concluded that “no medical documentation . . . support[ed] Ms.

Albert’s inability to work in the sedentary job category, specifically in her occupation as a tax

analyst.”

                                 II. STANDARD OF REVIEW

       A district court’s grant of summary judgment is reviewed by this court de novo, employing

the same standard as that employed by the district court. Harris Methodist Fort Worth v. Sales

Support Servs. Inc. Employee Health Care Plan, 426 F.3d 330, 333 (5th Cir. 2005) (citing Royal Ins.

Co. of Am. v. Hartford Underwriters Ins. Co., 391 F.3d 639, 641 (5th Cir. 2004)). Questions of law

are also reviewed de novo. Id. (citing In re CPDC, Inc., 337 F.3d 436, 441 (5th Cir. 2003)). The

district court will grant a motion for summary judgment if, based on the pleadings, there exist no

remaining genuine issues of material fact and the movant is entitled to a judgment as a matter of law.

Keszenheimer v. Reliance Standard Life Ins. Co., 402 F.3d 504, 507 (5th Cir. 2005) (citing Fed. R.

Civ. P. 56(c) and Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). To the extent they give rise

to multiple inferences, facts are construed in favor of the non-movant. Id. (citing Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and Ramming v. Nat’l Gas Pipeline Co.

of Am., 390 F.3d 366, 371 (5th Cir. 2004)).




                                                -4-
       Because the Plan gives the administrator discretion to make claim determinations,1 the court

must apply an abuse of discretion standard in reviewing the administrator’s decision. Atteberry v.

Memorial-Hermann Healthcare Sys. ex rel. Atteberry, 405 F.3d 344, 347 (5th Cir. 2005) (citing

Pickrom v. Belger Cartage Serv., Inc., 57 F.3d 468, 471 (5th Cir. 1995)). The abuse of discretion

standard requires that the administrator’s factual determinations be supported by substantial evidence.

Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d 211, 215 (5th Cir. 1999). An

administrator’s decision will be considered “arbitrary only if [it is] ‘made without a rational

connection between the known facts and the decision or between the found facts and the evidence.’”

Id. (quoting Bellaire Gen. Hosp. v. Blue Cross Blue Shield, 97 F.3d 822, 828–29 (5th Cir. 1996)).

In order to uphold the administrator’s decision, this court must determine “that [it] fall[s] somewhere

on a continuum of reasonableness—even if on the low end.” Vega v. Nat’l Life Ins. Servs., Inc., 188

F.3d 287, 297 (5th Cir. 1999) (en banc). Even where the administrator has a conflict of interest, this

court will “focus on whether the record adequately supports the administrator’s decision.” Id. at 298.

However, in such cases, the court “gives less deference to the administrator in proportion to the

administrator's apparent conflict.” Id. at 296.

       On appeal, Albert argues (1) that the district court erred by failing to consider evidence from

outside the record that tended to show that LINA had a conflict of interest, which tainted its decision

and (2) that the district court erred in concluding that there was substantial evidence to support

LINA’s determination that Albert was ineligible for long-term disability benefits. Albert’s argument

that the district court erred by refusing to consider evidence of LINA’s conflict of interest is a legal

question and is reviewed de novo. Her contention that the district court erred in granting LINA’s


       1
        The parties agree that the administrator has discretion under the Plan’s terms.

                                                  -5-
summary judgment motion is also reviewed de novo, though under the abuse of discretion standard.



                                         III. DISCUSSION

A.      Conflict of Interest & Standard of Review

        Albert maintains that the level of deference due an administrator’s decisions operates on a

“sliding scale,” depending on the extent to which the administrator has a conflict of interest. Albert

further argues that a court, in making this determination, is not bound by the administrative record.

Based on these premises, Albert asserts that the district court erred in limiting its analysis to

consideration of evidence within the administrative record.2 While Albert has correctly identified both

rules, her claim that the district court failed to follow them is without merit.

(1)     The Sliding Scale & Evidence from Beyond the Record

        Sitting en banc, this court determined that the sliding scale approach would be the law of the

circuit. Vega, 188 F.3d at 297. “Under the ‘sliding scale’ standard, the court always applies the

abuse of discretion standard, but gives less deference to the administrator in proportion to the

administrator’s apparent conflict.” Id. at 296. The Vega court explained that under this approach,

where the administrator appears conflicted, a court should be “less likely to make forgiving inferences

when confronted with a record that arguably does not support the administrator’s decision.” Id. at

299.

        With respect to the question of what evidence a court may consider, our circuit has been clear:



        2
        Specifically, Albert argues that the district court failed to consider evidence, not in the
administrative record, tending to show (1) that LINA, as both administrator and underwriter of the
Plan, had a conflict of interest, and (2) that LINA stated, in deposition, that it had no fiduciary duty
with respect to Albert.

                                                 -6-
“when assessing factual questions, the district court is constrained to the evidence before the plan

administrator.” Id. See also Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, 215 F.3d

516, 521 (5th Cir. 2000). Some exceptions to this rule exist. For example, a court may look beyond

the record for “evidence related to how an administrator has interpreted terms of the plan in other

instances, and evidence, including expert opinion, that assists the district court in understanding the

medical terminology or practice related to a claim.” Vega, 188 F.3d at 299. In addition, this circuit

has observed that, given the practical limitations of proving a conflict of interest, it is permissible to

look “beyond the record of the administrator” to address the conflict questions. Kergosien v. Ocean

Energy, Inc., 390 F.3d 346, 356 (5th Cir. 2004). While the discussion in Kergosien involved an

arbitrator’s use of non-record materials, the arbitrator was required to review the issue as would a

federal court. See id. More importantly, the reasoning in Kergosien is equally applicable here; a

court should not be limited to the administrative record, which is under the control of the

administrator, when determining the existence and extent of a conflict of interest and, as a result, the

appropriate level of deference to afford the administrator. See id. In other words, when determining

which level of deference t o afford an administrator, a court may look beyond the administrative

record for evidence of a conflict of interest. However, a court rem ains bound to consider only

material from the administrative record in determining whether an administrator abused the discretion

afforded.

(2)     The District Court’s Consideration of the Evidence Presented

        In her opposition to LINA’s motion for summary judgment, Albert submitted an affidavit,

which provided details of her interaction with the LINA claim agents, and a deposition from Chris

Brady, a representative of LINA. The deposition testimony showed that LINA did not believe that


                                                  -7-
it had a fiduciary duty to Albert. Albert asserted that this evidence supported her claim that LINA

suffered a conflict of interest and, as a result, should be afforded no deference.

        The district court expressly declined to consider these non-record documents and explained

its decision as follows:

                In her opposition/cross motion for summary judgment, Albert relies
                heavily on her own affidavit, the deposition of Chris Brady (LINA’s
                corporate representative), and various other documents. [citations
                omitted] To the extent these materials are not labeled as part of the
                administrative record, the Court will not consider them in determining
                whether LINA abused its discretion.

        Albert looks to this statement as proof that the district court erred in determining which level

of deference was appropriate. The district court did not, however, exclude the non-record evidence

for this purpose. The district court only affirmatively held that it would not consider the information

for the purposes of determining whether LINA abused its discretion; the district court was silent as

to whether or not it considered the non-record evidence for the purpose of defining the level of

deference.

        Despite Albert’s suggestion to the contrary, the district court’s approach to the case shows

that it appropriately lowered its level of deference to LINA’s decision regarding Albert’s benefits

because of the fact that LINA benefitted financially from the denial of Albert’s benefits. The district

court specifically employed the Vega sliding scale approach when it recognized that “LINA is entitled

to somewhat less deference than usual because it is a self-interested administrator.” Based on this

recognition, the district court limited the level of deference to match LINA’s conflict of interest.3 To


        3
        The district court correctly noted that a de novo standard of review of an administrator’s
decision is appropriate only when the relevant plan provides the administrator with no discretion as
to how to apply the benefits. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).


                                                 -8-
the extent that Albert argues that the district court should have further considered her evidence of

conflict of interest, her argument is both unsupported by precedent and without merit.4

B.     Support for the Administrator’s Action

       Albert argues on appeal that there is no substantial evidence to support LINA’s decision to

discontinue her long-term disability benefits. LINA responds that Albert’s attacks on the evidence

supporting LINA’s decision—the FCE, the IME and the peer review—are insufficient to raise a

genuine issue of material fact that LINA abused its discretion in denying Albert continued long-term

disability benefits. We agree that summary judgment was proper; LINA’s decision to terminate

Albert’s long-term disability benefits was not an abuse of discretion because it is sufficiently

supported by the record.

       In her most recent round of testing, Albert went to three different experts, all of whom opined

that she was capable of performing her job as a tax analyst. First, Katherine Hughes conducted the

FCE, which lasted approximately four hours. In the exam, Hughes evaluated Albert while she

exercised at a level of rigor that exceeded her job description. Based on the FCE results, Hughes

concluded that Albert was able to perform “light work” for up to four hours per day.5 Next, Dr.


       4
         Even if the district court erred by failing to consider the deposition that purportedly showed
a conflict of interest relevant to the standard o f review, such error was clearly harmless. The
allegedly damaging deposition simply restated the appropriate relationship between the administrator
and the Plan. See 29 U.S.C. § 1104(a)(1) (explaining that a fiduciary has a duty to the plan as a
whole). The fact that Brady stated in his deposition that LINA had no fiduciary duty to Albert as an
individual is unavailing because this is an appropriate description of an administrator’s duty. Indeed,
for an administrator to be obligated to an individual member of a plan would tend to indicate that the
administrator was in breach of its fiduciary duty to the plan as a whole.

       5
          “Light work” is defined as “involving lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). The district court
properly observed that Albert’s position is considered “sedentary work.” The regulations also note:

                                                 -9-
George Kevorkian conducted the IME. Dr. Kevorkian determined that he could not conclude with

certainty that Albert suffered from either fibromyalgia or chronic fatigue syndrome. Ultimately, Dr.

Kevorkian identified no irregularities in the IME. When considering Albert’s job description, Dr.

Kevorkian found “absolutely no physical reason or cognitive reason why [Albert] cannot perform her

job duties.” Finally, Dr. David Allan reviewed these tests and all of Albert’s medical records. Upon

review of all of the previous doctors’ conclusions, Allan concluded that “[t]here is no medical

documentation in the record . . . to support Ms. Albert’s inability to work in the sedentary job

category.”

        Albert concedes that the appropriate standard for approving an administrator’s action is

whether the action is supported by substantial evidence. See Ellis v. Liberty Life Assur. Co. of

Boston, 394 F.3d 262, 273 (5th Cir. 2004) (“The law requires only that substantial evidence support

a plan fiduciary’s decisions, including those to deny or to terminate benefits. . . .”); Meditrust, 168

F.3d at 215 (“[W]e affirm an administrator’s decision if it is supported by substantial evidence. . . .”).

“Substantial evidence is ‘more than a scintilla, less than a preponderance, and is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Ellis, 394 F.3d

at 273 (quoting Deters v. Sec’y of Health, Educ. & Welfare, 789 F.2d 1181, 1185 (5th Cir. 1986)).



        Albert legitimately disputes the evidence recited above. However, LINA’s decision to deny

Albert’s long-term disability benefits is not required to be supported by indisputable evidence. The

Vega court clearly held: “we do expect the administrator’s decision to be based on evidence, even


“If someone can do light work, we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.”
Id.

                                                   - 10 -
if disputable, that clearly supports the basis for its denial.” Vega, 188 F.3d at 299. The evidence

relied on by LINA is adequate support for its decision to deny Albert’s long-term disability benefits.

Because no issue of material fact exists and LINA is entitled to a judgment as a matter of law, we

uphold the district court’s grant of summary judgment.

                                       IV. CONCLUSION

       Finding no error, we AFFIRM.




                                                - 11 -
