           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 8, 2008

                                     No. 07-50687                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk




IRENE HERNANDEZ,

                                                  Plaintiff-Appellant,
v.

SBC COMMUNICATIONS INC.,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 3:05-CV-472




Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*


       In March 2003, SBC Medical Absence and Accommodation Resource Team
(“SMAART”), an entity that administers disability claims for SBC Communica-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-50687

tions Inc. (“SBC”), denied Irene Hernandez’s appeal of a decision terminating her
disability benefits. About a month later, Hernandez submitted additional medi-
cal information that SMAART refused to consider. Hernandez sued SBC, argu-
ing, inter alia, that SMAART abused its discretion in refusing to review the ad-
ditional evidence. The district court granted summary judgment, holding that
even if the additional evidence is considered, SMAART’s determination was per-
missible. We affirm.


                                       I.
      In January 2002, Hernandez began short-term disability leave under
SBC’s disability plan. She was treated bySSamong other doctorsSSCesar Maldo-
nado and Natalie Bornstein, both of whom are physicians; Elizabeth Young, a
mental health therapist; and Roberta Fennig, a psychiatrist.
      SMAART continued to extend Hernandez’s short-term disability through
early August 2002 based on medical information it had received from her doc-
tors. SMAART received no additional medical information to substantiate her
status after August 1 and consequently denied her benefits. In September,
SMAART spoke again with Fennig, and Hernandez’s benefits were extended
through October 16. On October 17, SMAART received a letter from Bornstein
stating that Hernandez would be unable to return to her performance level.
SMAART asked Bornstein for additional information to support that position;
Bornstein did not immediately respond.
      SMAART denied Hernandez’s benefits beginning October 29. On Novem-
ber 13, Bornstein contacted SMAART, stating that Hernandez felt that she could
not “sit, stand, or lie down for more than 20 minutes at a time.” SMAART’s posi-
tion was that Bornstein’s letter merely re-stated Hernandez’s own claims and
was not based on observable data.
      In early December, SMAART informed Hernandez that she could appeal,


                                       2
                                       No. 07-50687

but her doctors needed to provide evidence of her level of functionality, a descrip-
tion of how her level of functionality impacted her ability to work and perform
daily activities, and a detailed rationale with clinical documentation of those
conclusions. Two independent physician advisors (“IPA”) were selected by
SMAART to assess the matter. One of them, Jack Greener, reported that Fennig
had opined that Hernandez’s physical condition was the cause of her depression,
and Greener concluded that Fennig did not describe “severe anxiety, concentra-
tion and attention or memory problems of such severity that [Hernandez] could
not perform her regular job.”
         The other IPA, Jose Perez, Jr., reported that Bornstein had stated that
most of Hernandez’s symptoms were related to fatigue and were subjective and
that her lab work for Hernandez was not specific for any diagnosable disease.1
Perez noted that evidence of recent examinations was lacking, concluding that
according to “the information provided and from an internal medicine perspec-
tive, Ms. Hernandez is not disabled from her job from 10/29/02 to the present.”
         Based on its review of the file and those reports, in late March 2003
SMAART upheld the termination of benefits, noting that Hernandez was unable
“to substantiate a severe condition preventing [her] return to work in some ca-
pacity . . . .” The disability policy at issue stated that short term disability was
available only when “an Employee is unable to perform all of the essential func-
tions of his job or another available job assigned by the Participating Company
with the same full- or part-time classification for which the Employee is quali-
fied.”
         In May 2003, Hernandez contacted SMAART to provide more medical in-
formation, including the records of three additional doctors: R.J. Abresch, R.

         1
         Hernandez argues that the illness from which she suffersSSfibromyalgia, chronic fa-
tigue syndrome, or Epstein-Barr virusSSis not necessarily accompanied by objectively verifiable
symptoms and that, in any case, there were some objective indications that she was suffering
from an illness.

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                                  No. 07-50687

Marwah, and Steven Crouse. Hernandez said that she informed SMAART about
those three doctors and that SMAART had assured her it would obtain their
records too; SMAART refused to consider the documents. Hernandez contends
that those treatment records corroborate her other doctors’ opinions that she
suffers from fibromyalgia, chronic fatigue syndrome, and/or Epstein-Barr virus.
Hernandez contends on appeal that it was an abuse of discretion for SBC and
SMAART not to review the additional doctors’ records.


                                        II.
      We review de novo a summary judgment under Federal Rule of Civil Pro-
cedure 56. See, e.g., TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.
2002). A summary judgment will be affirmed “only if ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any,’ when viewed in the light most favorable to the non-movant, ‘show that
there is no genuine issue of material fact.’” Id. (quoting Anderson v. Liberty Lob-
by, Inc., 477 U.S. 242, 249-50 (1986)). “Once the moving party has initially
shown ‘that there is an absence of evidence to support the non-moving party’s
cause,’ the non-movant must come forward with ‘specific facts’ showing a genu-
ine factual issue for trial.” TIG, 276 F.3d at 759 (quoting Celotex Corp. v. Ca-
trett, 477 U.S. 317, 325 (1986)). Although the “court must draw all justifiable in-
ferences in favor of the non-moving party,” a genuine dispute about a material
fact exists only “if the evidence is such that a reasonable jury could return a ver-
dict for the non-moving party.” Id.
      “ERISA provides the federal courts with jurisdiction to review determina-
tions made by employee benefit plans, including health care plans.” Vega v.
Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 295 (5th Cir. 1999) (en banc) (citing 29
U.S.C. § 1132(a)(1)(B)). “[W]hen an administrator has discretionary authority
with respect to the decision at issue, the standard of review [is for] abuse of dis-

                                         4
                                     No. 07-50687

cretion.” Id. (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115
(1989)). “The existence of a conflict is a factor to be considered in determining
whether the administrator abused its discretion in denying a claim. The greater
the evidence of conflict on the part of the administrator, the less deferential our
abuse of discretion standard will be.” Id. at 297. Where a plaintiff has “demon-
strated the minimal basis for a conflict” but has “presented no evidence with re-
spect to the degree of the conflict,” we review the administrator’s decision “with
only a modicum less deference” than usual. Id. at 301.
      The “‘arbitrary and capricious’ standard [is] part of abuse-of-discretion re-
view,” and “we affirm an administrator’s decision if it is supported by substantial
evidence. A decision is arbitrary only if made without a rational connection be-
tween the known facts and the decision or between the found facts and the evi-
dence.” Meditrust Fin. Svcs. Corp v. Sterling, 168 F.3d 211, 215 (5th Cir. 1999)
(internal citations and quotations omitted).


                                           III.
      “Out of an abundance of caution,” the district court reviewed the additional
medical reports, declining to decide whether evidence provided by claimants to
plan administrators after the administrators have rendered a final disposition
but before the filing of a lawsuit must be considered by the administrators under
Vega. The court ruled that though SMAART’s decision should be reviewed with
less deference because of possible self-interest, and even if the additional records
were considered, there was no abuse of discretion. We affirm the district court
essentially for the reasons it offered.
      SMAART denied Hernandez’s appeal based on the reports of, inter alia,
two independent physician advisors.2 There was a rational connection among

      2
         The use of “independent medical consultants” favors upholding the plan administra-
tor’s decision. See Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 601-02 (5th Cir.

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their recommendations, the other evidence in Hernandez’s file, and SMAART’s
conclusions that Hernandez could perform her duties. That is enough in light
of our standard of review. Even if Hernandez was suffering from illnesses of
some sort, SMAART did not abuse its discretion in denying her appeal, because
there were no documented findings that her illnesses were sufficiently severe to
prevent her from doing her job.
         The additional documents that Hernandez argues should be considered do
not change this. SMAART never determined that she was not suffering from fib-
romyalgia, chronic fatigue syndrome, or the like, but only that there was insuf-
ficient evidence of impaired working ability as a result of the illness. Nothing
in the additional records undermines SMAART’s conclusion.3
         AFFIRMED.




1994).
         3
           See Boardman v. Prudential Ins. Co., 337 F.3d 9, 16-17 n.5 (1st Cir. 2003)
(“Prudential was willing to accept that Boardman suffered from the illnesses she reported to
her doctors. [But] Prudential wanted objective evidence that these illnesses rendered her
unable to work. While the diagnoses of chronic fatigue syndrome and fibromyalgia may not
lend themselves to objective clinical findings, the physical limitations imposed by the
symptoms of such illnesses do lend themselves to objective analysis.”); Roach v. Prudential Ins.
Brokerage, Inc., 62 Fed. App’x 294, 299 (10th Cir. 2003) (“In this case, substantial evidence
supported Prudential’s denial of Ms. Roach’s request for . . . benefits [despite evidence that
Roach suffered from chronic fatigue syndrome ]. Two independent physicians, Dr. Brachman
and Dr. Marble, had concluded that Ms. Roach did not satisfy the Plan’s definition of ‘Total
Disability,’ insofar as she was not ‘unable, due to sickness or injury, to perform the material
and substantial duties of [her] occupation.’ Accordingly, the district court properly concluded
that Prudential’s benefits determination was not arbitrary or capricious.”); Dennis v. Standard
Ins. Co., 1994 U.S. App. LEXIS 37288 (9th Cir. Dec. 29, 1994) (mem.) (unpublished) (stating
that mere diagnosis of chronic fatigue syndrome without showing of impairment is insufficient
to find an abuse of discretion); Nichols v. Verizon Commc’ns, Inc., 78 Fed. App’x 209, 212 (3d
Cir. 2003) (“The record reveals that the denial of Nichols’ claim was based on any number of
factors, including the lack of objective tests demonstrating the existence of her symptoms,
something a claimant with CFS might reasonably be asked to provide.”).

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