              United States Court of Appeals
                         For the Eighth Circuit
                     ___________________________

                             No. 18-1848
                     ___________________________

                             David C. Nicholson

                     lllllllllllllllllllllPlaintiff - Appellant

                                        v.

  Standard Insurance Company; Standard Benefit Administration; Long Term
                  Disability Insurance Policy No 142134-B

                   lllllllllllllllllllllDefendants - Appellees

  Compensation Committee; Cudd Pumping Services, Inc.; RPC Incorporated

                          lllllllllllllllllllllDefendants
                                  ____________

                  Appeal from United States District Court
               for the Western District of Arkansas - Ft. Smith
                               ____________

                          Submitted: April 17, 2019
                             Filed: July 3, 2019
                               [Unpublished]
                               ____________

Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
                         ____________

PER CURIAM.
      David C. Nicholson brought this action under the Employee Retirement Income
Security Act (ERISA), 29 U.S.C. § 1001 et seq., claiming that Standard Insurance
Company (Standard) wrongfully denied his claim for disability benefits under a group
policy sponsored by his employer. The district court1 granted summary judgment for
Standard. We affirm.

       Nicholson has back and neck pain from a 1978 car accident. He worked for his
employer from 2001 until September 2014, when he submitted a claim for benefits
alleging that his pain had become disabling. At the time, Nicholson had sought
medical treatment only from his family physician, Suh Niba, M.D., who noted that
Nicholson had “been having increasing difficulty at work due to his neck pain.”
Despite this observation, Dr. Niba did not increase Nicholson’s pain medication,
report that Nicholson suffered from any side effects on his current dosage of pain
medication, order any imaging tests, or refer Nicholson to a specialist.

       The policy grants Standard discretion to resolve all questions arising in the
policy’s administration, interpretation, and application, as well as to determine who
was entitled to benefits. The policy insured Nicholson against his inability to perform
his “own occupation” as performed in the national economy—not simply his inability
to perform his specific job. Standard’s vocational expert determined that Nicholson’s
occupation in the national economy was a light strength range occupation.

      Gary Nudell, M.D., reviewed Nicholson’s medical records and discussed
Nicholson’s medical condition with Dr. Niba. Dr. Nudell found that “there were no
neurologic abnormalities documented, no imaging studies available for review, and
no other clinical documentation to otherwise support impairment.” He further
concluded that Nicholson “could perform light level activity on a full time basis with


      1
       The Honorable P.K. Holmes, III, then Chief Judge, United States District
Court for the Western District of Arkansas.

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reasonable continuity.” Standard denied Nicholson’s claim based upon Dr. Nudell’s
review and the vocational expert’s occupation determination.

       After the denial, Standard received further correspondence from Dr. Niba and
Nicholson’s employer. Dr. Niba again did not report any change of pain management
treatment, any imaging results, or any referral to a specialist. Based on Nicholson’s
employer’s correspondence, however, Standard determined that Nicholson’s
occupation was better described as a medium strength range occupation. Dr. Nudell
reviewed Nicholson’s medical record in light of Dr. Niba’s further correspondence
but still determined that Nicholson was not disabled. Standard also sought the
opinion of orthopedic surgeon Kenneth J. Kopacz, M.D., who concluded that
Nicholson could perform medium level duties. Standard informed Nicholson that it
had considered his supplemental materials but determined that he had not presented
evidence showing that he was disabled.

       Nicholson formally appealed Standard’s decision, whereupon Standard sought
the opinion of Mark Shih, M.D., who is specialty certified in physical medicine and
rehabilitation. Dr. Shih reviewed Nicholson’s medical record and noted that there
were no changes appearing on any imaging tests, and although Nicholson reported
more pain, “typically there would be a change in his pain medication regimen, referral
to a specialty provider, and further evaluation of his condition.” Dr. Shih also
concluded that the medical record did not reveal that Nicholson suffered from any
cognitive impairment or deficit from his pain medication. Dr. Shih ultimately
concluded that Nicholson could perform a medium level occupation. Standard upheld
the denial of Nicholson’s claim, explaining that without any objective evidence to
support his assertion of increased pain, there was no satisfactory proof that Nicholson
satisfied the policy’s definition of “disability.” Nicholson subsequently filed suit in
federal district court. The court concluded that Standard did not abuse its discretion
in denying Nicholson’s claim and granted Standard summary judgment.


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       We review de novo a district court’s grant of summary judgment. Hankins v.
Standard Ins. Co., 677 F.3d 830, 834 (8th Cir. 2012). “Where an ERISA plan gives
the administrator discretionary power to construe ambiguous terms or make eligibility
determinations, the administrator’s decision is reviewed for an abuse of discretion.”
Id. Under an abuse of discretion standard, we will uphold Standard’s denial if it was
“reasonable; i.e., supported by substantial evidence.” McGee v. Reliance Standard
Life Ins. Co., 360 F.3d 921, 924 (8th Cir. 2004) (quoting Donaho v. FMC Corp., 74
F.3d 894, 899 (8th Cir.1996)). Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). “If substantial
evidence supports the decision, it should not be disturbed even if a different,
reasonable interpretation could have been made.” Id.

       Nicholson first challenges the district court’s application of the abuse of
discretion standard. Nicholson argues that the court should have applied de novo
review because the policy is subject to Arkansas Insurance Department Rule 101,
which prohibits discretionary clauses in “all disability income policies issued in this
State which are issued or renewed on and after March 1, 2013.” See Ark. Admin.
Code 054.00.101. The policy was issued on January 1, 2007, and last amended on
January 1, 2013. The policy itself states that it “may be renewed for successive
renewal periods by the payment of the premium set by [Standard] on each renewal
date. The length of each renewal period will be set by [Standard], but will not be less
than 12 months.” Neither the policy, nor anything else in the administrative record,
signifies that Standard explicitly set a renewal date after March 1, 2013. The district
court thus correctly reviewed Standard’s decision for an abuse of discretion.

       Nicholson contends, alternatively, that the district court erred in granting
summary judgment under the abuse of discretion standard. Standard sought the
opinion of three doctors, who, after reviewing Nicholson’s medical records, found
that there was no objective evidence of a disability. See McGee, 360 F.3d at 925 (“It

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is not unreasonable for a plan administrator to deny benefits based upon a lack of
objective evidence.”); see also Prezioso v. Prudential Ins. Co. of Am., 748 F.3d 797,
806 (8th Cir. 2014) (concluding that an insurance company “did not abuse its
discretion by according more weight to the opinions of its own experts”). Finally,
although Nicholson claims that his narcotic pain medication prevented him from
performing his own occupation, nothing in the administrative record reveals that
Nicholson experienced adverse side effects from his medication or that he was barred
from performing his own occupation in the national economy because of his narcotic
medication. It was thus reasonable for Standard to deny the claim.

       Nicholson also fails to show that Standard acted under a conflict of interest
when it asked Dr. Nudell to again review Nicholson’s medical record after it received
further correspondence from Nicholson’s employer and Dr. Niba. Nicholson
seemingly claims that such correspondence constituted a formal appeal, thereby
requiring Standard to seek out the opinion of a different medical consultant. See 29
C.F.R. § 2560.503-1(h)(3)(v). Yet Nicholson did not file a formal appeal until after
Standard had reviewed the supplemental materials, at which time Standard sought Dr.
Shih’s opinion. Standard thus was in compliance with federal regulations.

      The judgment is affirmed.
                     ______________________________




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