                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                    REVISED AUGUST 10, 2004
                                                               July 26, 2004

             IN THE UNITED STATES COURT OF APPEALS       Charles R. Fulbruge III
                                                                 Clerk
                     FOR THE FIFTH CIRCUIT



                          No. 02-31135




    BARBARA F. VERCHER,


                                         Plaintiff-Appellant,


         versus


    ALEXANDER & ALEXANDER INC.; ET AL,


                                         Defendants,


    AON SERVICES CORP; AON RISK
    SERVICES INC OF LOUISIANA,
    formerly known as Alexander &
    Alexander Inc; METROPOLITAN LIFE
    INSURANCE CO;

                                         Defendants-Appellees.


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



Before GARWOOD and JONES, Circuit Judges, and ZAINEY,* District
Judge.



    *
     District Judge for the Eastern District of Louisiana,
sitting by designation.
GARWOOD, Circuit Judge:

     Plaintiff-appellant Barbara F. Vercher appeals the district

court’s grant of summary judgment in favor of defendants-appellees,

Aon Services Corporation, Aon Risk Services, Inc. of Louisiana

(formerly known as Alexander and Alexander, Inc.) (Alexander), and

Metropolitan Life Insurance Company (MetLife), upholding the denial

of Vercher’s claim for long-term disability benefits.     We affirm.

                   Facts and Proceedings Below

     Barbara Vercher (Vercher), began working for Alexander in 1978

as an Accounting Clerk.    She was first promoted in 1979, then again

in 1980, 1983, 1986, and finally in May of 1993 to Manager of

Administrative Services.     Vercher continued to work at Alexander

until March 7, 1995.

     During the course and scope of her employment with Alexander,

Vercher was injured in a motor vehicle accident on February 19,

1991. The accident resulted in injury to her knee, head, and back.

In late 1991 she began to experience numbness in her arms and legs.

She was referred to Dr. C. Babson Fresh who on October 27, 1992,

performed an anterior cervical discectomy and fusion with bank bone

at C5/C6 on Vercher.       When Vercher returned to Dr. Fresh in

December 1992 with continued pain at the base of her neck and in

her right arm, Dr. Fresh assessed that the pain was myofascial, and

not nerve root in origin.      When Dr. Fresh released Vercher in

February of 1993, he declared her at “Maximum Medical Improvement.”



                                   2
Dr. Fresh eventually recommended medical retirement on April 13,

1995.    Another doctor, Dr. Farley Tumbaco, who had treated Vercher

from September 28, 1994, also recommended medical retirement.

     Vercher ceased working for Alexander on March 7, 1995, because

of her alleged disabilities stemming from the 1991 worked-related

accident.    Vercher had elected coverage under her employer’s long-

term disability plan which did not entitle her to benefits until

six months later.1     On August 22, 1995, Vercher submitted her

application for long-term disability benefits.     Soon thereafter,

Alexander entered into an Administrative Services Agreement (ASA)

with MetLife, which gave MetLife authority to perform certain

administrative services related to the Alexander disability plan.

The ASA also gave MetLife discretionary authority for determining

eligibility for disability benefits and for construing plan terms.2

Disability under the plan is determined as follows:

     “You are disabled if, because of injury or sickness:
     -You are completely unable to perform any and every duty
     of your regular occupation; and
     -After benefits have been paid for 60 months, you are
     completely unable to perform the material duties of any
     gainful occupation for which you are reasonably suited by
     training, education, or experience.”

     MetLife denied Vercher’s claim for long-term benefits on


     1
      The plan defined eligibility to receive benefits as
follows: “The Plan begins to pay you a monthly benefit after you
have been disabled for at least 180 days out of a 240-day period,
or continuously for a period of 180 days.”
     2
     Prior to October 1, 1995, Alexander’s plan was administered
under an ASA with the Aetna Life Insurance Company (Aetna).

                                  3
November 27, 1995. On January 17, 1996, Vercher appealed MetLife’s

denial of her claim, maintaining that she was totally disabled and

entitled to long-term disability benefits.        On November 5, 1996,

MetLife denied her appeal adhering to its prior determination that

she was not disabled.

     Vercher filed this action in state court on February 12, 1998.

Appellees then removed the case to federal court on April 21, 1998,

asserting exclusive federal jurisdiction over actions for wrongful

denial of benefits governed by the Employee Retirement Income

Security Act of 1974 (ERISA).     The parties filed cross motions of

partial summary judgment, and the district court disposed of those

motions holding that the MetLife ASA controlled the disposition of

the claim, and that MetLife’s decision to deny Vercher’s claim for

disability benefits would be reviewed for abuse of discretion. The

parties   then   filed   cross-motions   for   summary   judgment.   The

district court granted appellees’ motion, holding that MetLife did

not abuse its discretion in denying Vercher’s claim for long-term

disability benefits.     Vercher timely appealed.

                               Discussion

1.   Standard of Review

     This court reviews the district court’s grant of summary

judgment de novo.    Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335

(5th Cir. 1995) (en banc). Standard summary judgment rules control

in ERISA cases.     See Barhan v. Ry-Ron Inc., 121 F.3d 198, 202 (5th


                                   4
Cir. 1997).      Summary judgment is appropriate when, viewing the

evidence and all justifiable inferences in the light most favorable

to the non-moving party, there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law.

Hunt v. Cromartie, 119 S.Ct. 1545, 1551-52 (1999); see also Fed. R.

Civ. P. 56(c).

2.   MetLife and the abuse of discretion standard

     Vercher’s long-term disability plan was sponsored by her

employer, Alexander.       The official plan administrator was the

United States Benefit Administration Committee of Alexander and

Alexander Services, Inc. The plan was not an insurance policy, and

there was no insurance policy of which Vercher was a beneficiary.

The employees paid into the plan monthly according to the character

of plan benefit which they had elected and which the employer

agreed to provide.      Until October 1, 1995, benefits under the plan

were paid by Alexander through an ASA with Aetna.           While the Aetna

ASA provided that Aetna would determine benefit claims under the

plan, it did not expressly give Aetna “discretionary authority” to

construe plan terms.     The agreement with Aetna was in effect at the

time of Vercher’s injury, at the time she stopped working, and at

the time she filed her initial claim.           After Vercher’s claim for

benefits   had   been   filed,   but   before   it   had   been   decided   or

presented to Aetna for determination, Alexander entered into the




                                       5
aforementioned ASA with MetLife, effective October 1, 1995.3               Under

the   agreement,    MetLife   had   the     “discretionary    authority      for

determining eligibility for disability benefits and for construing

Plan terms.”

      Vercher asserts that because there was no such discretionary

provision in the agreement with Aetna, and because the Aetna

agreement was in effect at the time she submitted her claim, her

claim should have been reviewed under the terms of the non-

discretionary Aetna ASA, and in turn, the district court should

have applied a de novo, as opposed to an abuse of discretion,

standard.

      After   the   initial   hearing,      in   its   memorandum   ruling   of

February 1, 2002, the district court determined that the MetLife,

not the Aetna, agreement was controlling, and therefore decided

that the standard of review would be abuse of discretion.

      In her brief, Vercher "concedes that if [the MetLife] plan was

the appropriate     plan   under    which    her   claim   should   have   been

reviewed, then the arbitrary and capricious standard utilized by

the District Court was the correct standard."               However, Vercher

disputes the district court’s decision that the MetLife agreement

controls.     In addition to the fact that she made the required

payments to the Plan for disability coverage thereunder, was


      3
      No MetLife insurance policy is involved in this case;
instead, Alexander is required to furnish the money from which
MetLife pays the benefits.

                                      6
injured, became disabled and filed her claim for benefits while the

Aetna     ASA   was     in    effect,      Vercher       asserts    that   Alexander

deliberately     held      her    claim    until   the    MetLife   ASA    came   into

effect.4

      The district court held that because an ERISA cause of action

accrues at the time the benefits claim is denied, the plan in

effect at the time of that denial controls the claim.                      To support

its holding, the district court cited an unpublished Fourth Circuit

opinion, McWilliams v. Metropolitan Life Ins. Co., 172 F.3d 863,

1999 WL 64275, *2 (4th Cir. 1999), in which the court held that an

ASA   expressly       granting      MetLife     the    discretion     to    determine

eligibility for long-term disability benefits controlled because it

was in effect when the applicant’s claim was denied, even though it

was not in effect when he became disabled.5

      In the Fifth Circuit, the proper standard under which a

district    court     is     to   review    a   plan     administrator’s     benefit

determination is governed both by the Supreme Court’s decision in


      4
     In a letter to MetLife nurse C.J. Ferrante, Sue A. Foard,
Alexander’s Benefits Coordinator, indicated that certain
applications, including Vercher’s, were being sent via Federal
Express to MetLife. Foard then stated, “Thank you very much for
your help on these claims. I had to hold them in my office until
everything was finalized between Metlife & Alexander &
Alexander.” (emphasis added). That is the sole basis for
Vercher’s contention in this respect.
      5
      “[A]n ERISA cause of action based on the denial of benefits
accrues at the time benefits are denied, and the plan in effect
when the decision to deny benefits is controlling.” McWilliams,
id. at *2.

                                            7
Firestone Tire & Rubber Co. v. Bruch, 109 S.Ct. 948 (1989), and our

subsequent decision in Pierre v. Connecticut General Life Ins. Co.,

932 F.2d 1552 (5th Cir. 1991), cert. denied, 502 U.S. 973, 112

S.Ct. 453 (1991), in which we construed and applied Firestone.   In

Firestone, the Supreme Court held that judicial review of the

administrator’s determination of plan terms and eligibility for

benefits provisions was to be de novo unless the plan expressly

conferred upon the plan administrator discretionary authority in

making such determinations. If discretion were granted, the “abuse

of discretion” standard would apply instead.    However, in Pierre,

we held that even where the plan does not expressly give the

administrator discretionary authority, “for factual determinations

under ERISA plans, the abuse of discretion standard of review is

the appropriate standard” (emphasis added).    932 F.2d at 1562; see

also Southern Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 100-

01 (5th Cir. 1993); Sweatman v. Commercial Union Ins. Co., 39 F.3d

594, 597-98 (5th Cir. 1994).    Therefore, a plan administrator’s

factual determinations are always reviewed for abuse of discretion;

but its construction of the meaning of plan terms or plan benefit

entitlement provisions is reviewed de novo unless there is an

express grant of discretionary authority in that respect, and if

there is such then review of those decisions is also for abuse of

discretion.

     In light of this standard, we need not in fact determine which

                                 8
ASA controlled Vercher’s claim, because, as we will explain below,

we believe that Alexander and MetLife applied a legally correct

construction of the plan and its benefit entitlement provisions.6


     6
      Though we do not decide the question, it may very well be
that the MetLife agreement does in fact control. After the
district court issued its opinion in this case, the Seventh
Circuit considered the same question, and stated, “[i]f benefits
have not vested [under an ERISA plan], the plan participant does
not have an unalterable right to those benefits. The fact that
benefits have not vested suggests that the plan is malleable and
the employer is at liberty to change the plan and thus change the
benefits to which a participant is entitled. Since the employer
can change the plan, then it must follow that the controlling
plan will be the plan that is in effect at the time a claim for
benefits accrues. . . . We have held that a claim accrues at the
time benefits are denied.” Hackett v. Xerox Corp., 315 F.3d 771,
774 (7th Cir. 2003).
     This court, like the Seventh Circuit, has held that an ERISA
claim accrues at the time benefits are denied. See Hall v.
National Gypsum, 105 F.3d 225, 230 (5th Cir. 1997). Therefore,
the district court assumed that the MetLife ASA, which was in
effect at the time of the denial of benefits, controlled, and in
turn applied an abuse of discretion standard.
     The Seventh Circuit in Hackett appears to have based their
decision in part on a theory concerning “vested rights” to
benefits. In that case, Xerox stopped paying the claimant’s
benefits even though they had been started under a different long
term disability plan. The court held that there is a presumption
against the vesting of benefits unless plan language establishes
some ambiguity on the issue. 315 F.3d at 774. Because there was
no language suggesting ambiguity on the vesting question in
Hackett, the controlling plan was held to be the plan in effect
at the time the benefits were denied. Id.
     The lack of vested benefits rights is somewhat troublesome
in the present context; for example, under the Seventh Circuit’s
reasoning, Alexander could have decided to change their plan in
September, after Vercher had been on temporary disability for six
months and had already applied for long-term benefits, to
terminate the long term disability plan altogether. The Summary
Plan Description (SPD) does not speak to the issue of whether or
not the plan documents expressly authorized Alexander to change
or amend the benefits at any time, and the plan itself was never
before the district court or made part of the record. Because
ERISA does not require a welfare benefit plan SPD to reference

                                9
3.   The administrator’s construction of the agreement

     Vercher   claims   that   the        district   court   erred   in   its

determination that the administrator utilized a legally correct

interpretation of the long-term disability provisions of the plan;

specifically the definition of “any and every duty.”


amendment rights or procedures, and because Vercher presented no
evidence to the contrary, arguably we could assume that the Plan
document itself does allow Alexander to amend or change the
benefits.
     This court has held that even if an SPD does not discuss
amendments or changes to the welfare benefit plan itself, so long
as the plan contains such language, benefits can then be amended,
modified, or terminated. See Wise v. El Paso Natural Gas Co.,
986 F.2d 929, 934-37 (5th Cir. 1993) (holding, in a case dealing
with a welfare benefit plan, that the fact that no pre-1985 SPD
contained amendment or termination language is not “tantamount to
a promise to maintain post-retirement health care . . .
particularly when (1) ERISA does not mandate the inclusion within
SPDs of amendment rights or procedures and (2) any pre-1985
silence is followed by an unequivocal statement to the
contrary”). The Wise court goes on to hold that ERISA does not
require that welfare plan benefits vest, and “[a]lthough ERISA
generally allows employers to modify or discontinue such plans at
will so long as the procedure followed is consistent with the
plan . . . an employer’s welfare plan itself may designate a
vested benefit,” thereby obligating itself contractually to
maintain benefits. Id. at 937. However, extra-ERISA commitments
“must be found in the plan documents and must be stated in clear
and express language.” Id. The record here contains no evidence
of vested rights.
     Additionally, merely changing ASAs or the discretion given
them does not divest participants of benefits, but merely changes
procedures. Therefore, it seems likely that before a claim has
initially been ruled on by the administrator, simply changing or
implementing a new ASA is legitimate so long as it is done before
the claim is ruled upon.
     However, we need not and do not go so far as to say that it
would have been acceptable for Alexander to have simply ended the
benefit program so that Vercher would be entitled to no post
August 1995 benefits whatsoever even if she were concededly
disabled as defined in the plan. We assume, arguendo only, that
Alexander could not have done so.

                                     10
       In this Circuit, we employ a two-step analysis in determining

whether a plan administrator abused its discretion in construing

plan terms.    Rhorer v. Raytheon Eng'rs and Const'rs, Inc., 181 F.3d

634, 639 (5th Cir.1999). We first determine the legally correct

interpretation      of    the   plan     and    whether     the    administrator's

interpretation accords with the proper legal interpretation.                     Id.

If the administrator's construction is legally sound, then no abuse

of   discretion    occurred     and    the     inquiry    ends.   Id.   at   639-40.

However, if the court concludes that the administrator has not

given the plan the legally correct interpretation, the court must

then    determine        whether   the        administrator's      interpretation

constitutes an abuse of discretion. Id. at 640.

       A.   The Legally Correct Interpretation

       In order to ascertain the legally correct interpretation of

the plan, we must consider “(1) whether a uniform construction of

the [plan] has been given by the administrator, (2) whether the

interpretation      is     fair    and       reasonable,     and     (3)     whether

unanticipated costs will result from a different interpretation of

the policy.”      Lain v. UNUM Life Ins. Co. of America, 279 F.3d 337,

344 (5th Cir. 2002).         Applying these factors, the district court

correctly determined that the essential inquiry here is whether

MetLife’s interpretation of the plan was fair and reasonable, as

Vercher did not allege that the construction of the plan was not




                                         11
uniform or that there were unanticipated costs.7

     Under Alexander’s long-term disability plan, a person becomes

“disabled if, because of injury or sickness: You are completely

unable to perform any and every duty of your regular occupation;

and After benefits have been paid for 60 months, you are completely

unable to perform the material duties of any gainful occupation for

which    you   are   reasonably   suited      by   training,   education,   or

experience.”         The   district   court    correctly    determined   that

Vercher’s claim falls under the first part of this definition,

requiring her to be “completely unable to perform any and every

duty” of her regular occupation.

     Vercher appeals the district court’s holding as to the legally

correct interpretation of “any and every.”                 In its memorandum

ruling of September 23, 2002, the district court stated that in

order to be considered “disabled” under the plan’s definition, “an


     7
      That distinguishes this case from Lain where we read the
insurance policy’s disability provision to mean that “an insured
must be unable to perform only a single material duty of her
occupation” in order to be disabled. Id. at 345. That was the
interpretation the company gave in its first level review of the
claim in issue and also it had “previously interpreted the policy
in other cases containing a similar definition of ‘disability’ as
requiring a person to be unable to perform only a single material
duty of her regular occupation.” Id. Moreover, in Lain the
policy language was “cannot perform each of the material duties,”
while here the plan refers to being “completely unable to perform
any and every duty” (emphasis added). Lain does not define
“material.” We also note that Lain (which looked to Texas law to
some extent, id. at 345) was handed down before Provident Life
and Acc. Inc. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003), which
appears to give a somewhat more restricted meaning to a policy’s
total disability definition.

                                      12
employee must be unable to perform all of the duties the employee’s

occupation   demands.     It   is   insufficient,   under   the   Plan’s

definition, to be unable to perform some of the duties of one’s

regular occupation.      To be eligible for long term disability

benefits, an employee must be completely unable to work. . . . As

long as Vercher has some ability to work at her position as

administrative services manager, she does not meet the required

eligibility standard.”

     We believe that the district court’s definition of “any and

every” goes too far.      In Saffle v. Sierra Pacific Power Co.

Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455 (9th

Cir. 1996), the Ninth Circuit examined a similar provision in a

long term disability plan containing the phrase “each and every.”

That court determined that the phrase was ambiguous8 because there

were two extreme constructions possible: “Reading ‘each and every’

literally could mean either that a claimant is not totally disabled


     8
      Eligibility for benefits under an ERISA plan is “governed
in the first instance by the plain meaning of the plan language.”
Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th
Cir. 1998). The court interprets ERISA plans in “an ordinary and
popular sense as would a person of average intelligence and
experience.” Jones v. Georgia Pacific Corp., 90 F.3d 114, 116
(5th Cir. 1996) (internal quotation and citation omitted). “Only
if the plan terms remain ambiguous after applying ordinary
principles of contract interpretation are we compelled to apply
the rule of contra proferentum and construe the terms strictly in
favor of the insured.” Wegner v. Standard Ins. Co., 129 F.3d
814, 818 (5th Cir. 1997) (citation omitted); see also Jones, 90
F.3d at 116 (stating, in relation to the terms of a group life
insurance plan, “[w]e have held that in construing ERISA plans we
follow the rule of contra proferentem”).

                                    13
if she can perform any single duty of her job, no matter how

trivial – or that a claimant is totally disabled if she cannot

perform any single duty, no matter how trivial.”           85 F.3d at 458.

The court then notes that were the phrase to be given the former

construction, total disability would “only exist if the person were

essentially     non-conscious,”      while     the   latter    “effectively

convert[s] benefits for total disability into benefits for partial

disability.”     Id. at 458-59.

     The Saffle court held that “the Benefit Committee could

reasonably interpret the Plan as providing for payment of total

occupational disability benefits when the participant is unable to

perform all of the substantial and material duties of her regular

occupation,” i.e., each and every duty that mattered. Id. at 460.

However, the court found that the Committee arbitrarily construed

the plan by defining “total disability,” which for purposes of

occupational    benefits   depends   on   whether    the   participant   can

perform   the   duties   of   her   “regular    occupation,”    to   include

modifications or accommodations to “work available for which she is

qualified.”     Id. at 459.   In effect, even though the committee had

discretion, the court held that their construction of “total

disability” was not reasonable because premising “occupational

disability” (unable to perform each and every duty of her “regular

occupation”) on the existence of other “work available for which

she is qualified” that would have accommodated her limitations was


                                     14
inconsistent with the plan.   Id.

     Vercher also cites the Ninth Circuit opinion in McClure v.

Life Ins. Co. of North America, 84 F.3d 1129 (9th Cir. 1996), where

discretion to interpret the plan was not present.    In that case,

where the ERISA policy at issue defined disability in terms of the

claimant’s inability “to perform every duty of his occupation,” the

court determined that “every” was ambiguous, and that the language

should be construed against the insurer.   84 F.3d at 1133-34.   The

court stated that the “provision should be construed in a practical

sense to refer to essential duties. . . . total disability exists

if an employee is unable to perform one of the essential duties of

his or her position.”   Id. at 1134.   Cf. Provident Life and Acc.

Ins. Co. v. Knott, 128 S.W.3d 211, 216-17 (Tex., 2003) (When total

disability is defined as “unable to perform the duties of your

occupation,” a permissible reading is that a person is totally

disabled when he is “unable to perform all of the important duties

of his occupation,” and therefore, the plaintiff was not totally

disabled because he was able to perform “some of his duties.”).9

     From our review of the record, it does not appear that the


     9
      The court in that case was able to base its decision in
part on the definition of “partial disability,” which meant that
a person was unable “to perform one or more of [his] important
daily business duties, or . . . [his] usual daily business duties
for at least one-half of the time usually required. . .” Id. at
216-17. In the case sub judice, we do not have an analogous
contrasting definition of partial disability respecting the
claimant’s usual occupation.

                                15
district court’s definition of “any and every” was the one that

Alexander and MetLife actually applied when considering Vercher’s

disability claim.   Rather, Alexander and MetLife seem to have

believed that Vercher was able to do her job, not just that she

could do certain minor or nonessential parts of it.10

     Specifically, in its letter of November 27, 1995 initially

denying her claim, MetLife wrote to Vercher that based on the

information provided, “you have the ability to perform your regular

occupation” (emphasis added). Then, in the November 5, 1996 letter

denying her appeal, MetLife stated,



     10
       A review of the record provided the following examples of
the standard definition that was in fact applied by MetLife and
Alexander in making their determination of Vercher’s disability:
“[The] lack of objective evidence found by MetLife was a lack of
any psychiatric or neuromuscular impairment to the extent that
plaintiff should be prevented from performing her duties”
(emphasis added), defendants’ memorandum in opposition to
plaintiff’s cross-motion for summary judgment. “[E]vidence in
the administrative record indicates that plaintiff was capable of
fulfilling the duties of her occupation at the time of her
alleged disability” (emphasis added), memorandum in support of
defendants’ motion for summary judgment. See also the following
from diverse items of MetLife correspondence during its
consideration of Vercher’s claim, viz: “Tests performed still do
not indicate that [employee] would be unable to perform her
occupation as a manager of administrative services;” “FCE found
that [employee] was capable of performing sedentary work with
modifications for lifting above 5 lbs;” “FCE determinted [sic]
that she was able of performing sedentary work on 7-8 [hour day]
for her occupation;” “[N]o objective evidence of a neuromuscular
or psychiatric impairment which prevents employment;” “Medical
evidence does not support claim of inability to perform sedentary
work;” “[employee] also treated for depression but it does not
appear to be such severity to preclude her from performing her
job as a manager of administrative assts;” “Our findings [sic]
[employee] is capable of sedentary work.”

                                16
       “It was the opinion of the independent physician reviewer
       that the documentation we have does not demonstrate the
       presence of a significant neuromuscular impairment that
       would prevent you from performing the job activities of
       an Administrative Services Manager. This occupation is
       considered sedentary in nature and not physically
       demanding. Depression is a treatable condition and the
       evidence does not support any ongoing impairment that
       would prevent work. . . . the documentation in your
       particular case does not support an inability to perform
       sedentary types of activities” (emphasis added).

We must also note that Vercher in fact stipulated for purposes of

this case that the “physical demands of plaintiff’s job were

sedentary in nature.”

       MetLife’s key inquiry was what had changed since 1991, when

the accident and injuries occurred, to preclude Vercher, in 1995,

from working.    In a faxed letter to one of Vercher’s doctors, Dr.

Fresh, MetLife nurse Ferrante wrote “Information is needed to

indicate what precluded her [Vercher] from doing her occupation. .

. . Please provide copies of test results and physical exams done

that would support a Total Disability to her occupation.           Please

indicate what happened to preclude her continuing to work since

this condition has been in existence since 1991.”

       After reviewing her records, MetLife’s Dr. Petrie’s assessment

was that “[a] review of the medical records provided does not

demonstrate the presence of a neuromuscular impairment which would

prevent this claimant from performing her previous job activities

as an Administrative Services Manager. . . . This claimant does not

have    objective   evidence   of   a    neuromuscular   or   psychiatric


                                    17
impairment which prevents her from working.”

      We are unable to conclude that MetLife applied or utilized

other than a legally correct interpretation or definition of plan

terms.       In    deciding   that     she    could   perform    “her    regular

occupation,” it appears that MetLife essentially determined that,

if   there   were    something   she    was    unable   (despite      reasonable

accommodation) to do that was indispensable or essential to the

proper performance of her regular occupation, she would have

received benefits.      However, so long as she was able to perform all

the substantial and important aspects of her job, with reasonable

accommodation, and any aspects of the job that she could not

perform with reasonable accommodation were, singularly or together,

not indispensable or essential to the job, then she was not

disabled.

      Therefore, under either a de novo or an abuse of discretion

standard, we hold that MetLife and Alexander applied a legally

correct, fair, and reasonable construction of the plan terms.

Because theirs was a legally correct interpretation, we need not

determine    whether    the   interpretation      itself   was   an     abuse   of

discretion.       See Lain, 279 F.3d at 344.

4.   Facts and evidence

      Though we have determined that a legally correct standard was

applied, we still must consider whether the facts before MetLife

and underlying its decision to deny benefits support that decision


                                        18
or whether its factual determinations were an abuse of discretion.

Again, in this Circuit, factual determinations under ERISA plans

are examined using the abuse of discretion standard of review;

federal courts owe “due deference to the administrator’s factual

conclusions that reflect a reasonable and impartial judgment.”

Pierre, 932 F.2d at 1562.

     The district court correctly noted that the administrative

record contains evidence that Vercher did suffer from some degree

of disability.11   For example, Dr. Fresh, one of Vercher’s doctors,

concluded   that   she   suffered   from   cervical    disc   herniation,

depression, hyperthyroidism, persistent neck and arm pain, and was

severely limited in functional capacity and incapable of minimal

sedentary   activity.     Additionally,    doctors    Fresh   and   Tumbaco

recommended medical retirement for Vercher.

     However, the district court was also correct in noting that

the “administrative record also contains evidence that Vercher’s

disability did not render her completely unable to perform any and

every duty of her regular occupation.”      MetLife had Vercher submit



     11
      Although Vercher did not appeal the determination, the
district court was correct in noting that it could only consider
evidence that was before MetLife, and that Vercher could not
bring in later evidence to support her position. See Vega v.
Nat’l Life Ins. Servs. Inc., 188 F.3d 287, 300 (5th Cir. 1999);
see also Meditrust Financial Services Corp. v. Sterling
Chemicals, Inc., 168 F.3d 211, 215 (5th Cir. 1999)(When both
parties have been given an opportunity to present facts to the
administrator, the court’s review of factual determinations is
confined to the record available to the administrator).

                                    19
to a “Functional Capacity Assessment” (FCA) in 1996 which presented

her    physical    capabilities     based      upon   consistencies       and

inconsistencies in her performance. The FCA concluded that Vercher

had a workday tolerance of seven to eight hours and was able to

work at a sedentary level.

      Additionally, the district court addressed Dr. Petrie’s review

of Vercher’s records.12   Upon reviewing the FCA and the findings of

those physicians who had treated Vercher, Dr. Petrie stated in an

October 24, 1996 letter that there was “no objective evidence of a

neuromuscular or psychiatric impairment which prevents employment,”

and that the “less than maximal effort demonstrated on testing of

neuromuscular     structures   [during   the   FCA]   .   .   .   indicate[s]

attempts on the part of an individual to exaggerate impairment.

Intolerance for prolonged sitting, inability to balance or walk on

the heels and toes, and difficulty climbing stairs cannot be

attributed to previous cervical disk surgery.”

      There is also other factual evidence in the record supporting

the administrator’s determination that Vercher should not receive

long-term disability benefits.      Vercher worked for more than four

years after she was initially injured in the accident.                    She

accepted a promotion on May 1, 1993, from Manager of Accounting to

Manager of Administrative Services, and performed under her new


      12
       Dr. Petrie did not in fact examine Vercher in person;
rather, he reviewed her records and the findings made by the
other physicians and nurses who had examined her.

                                    20
position for nearly two years.      Notably, between March of 1994 and

March of 1995, Vercher had only taken seven days off work due to

her injury-related illness.       Though she had depression, which her

doctor’s believed was a result of her 1991 injury and related pain,

she was not undergoing special psychiatric treatment.13

     After she left work, Vercher listed her daily activities to

include “light cooking, cleaning, make bed daily - Have to have

weekly help for changing beds . . . walk in my yard or sit

outside.” Elsewhere in the record, it is stated that since leaving

work, Vercher occasionally “works around the yard,” which, unlike

her job, does not appear to be a sedentary activity.14

     We    agree   with   the   district   court   that,   though   medical

retirement was recommended by her treating physicians, there was

enough evidence in the record to show that Alexander and MetLife

did not abuse their discretion by relying on the FCA and Dr.

Petrie’s conclusions in making their decision to deny Vercher’s

claim. See Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 602

(5th Cir. 1994) (“[W]e agree with the district court that MetLife's

disability determination was not an abuse of discretion. See Donato


     13
          She was, however, taking anti-depressant medication.
     14
       Although she argues on appeal that her job was not
sedentary, as we have noted, she stipulated for the purposes of
this case that it was sedentary, and therefore cannot now deny
it. See Pre-Trial Stipulations (“Plaintiff’s responsibilities
were to direct management of administrative, personnel and
accounting department functions. The physical demands of
plaintiff’s job were sedentary in nature.”)

                                     21
v. Metropolitan Life Ins. Co., 19 F.3d 375, 380 (7th Cir.1994)

(MetLife's denial of benefits was not arbitrary and capricious when

its ‘decision simply came down to a permissible choice between the

position of UMAC, MetLife's independent medical consultant, and the

position of [the claimant's physicians].’)”).

5.   Treating Physician Argument

     Finally, Vercher contends that the district court erred in

determining that it could give no greater weight to the opinions of

her treating physicians than to those of the doctors hired by

MetLife.   Under Salley v. E.I. DuPont de Nemours & Co., 966 F.2d

1011, 1016 (5th Cir. 1992) and the “treating physicians rule,” this

Court held that, under appropriate circumstances, a court is

required to defer to a patient’s treating physician’s testimony

unless there is substantial evidence which contradicts it.

     Vercher’s argument that special, determinative deference had

to have been given to the opinions of her treating doctors by both

MetLife and the district court, must fail in light of recent

Supreme Court precedent.    In Black & Decker Disability Plan v.

Nord, 123 S.Ct. 1965 (2003), the Supreme Court held that ERISA does

not require plan administrators to accord special deference to

opinions of treating physicians.        The Court stated,

     “[p]lan administrators may not arbitrarily refuse to
     credit a claimant's reliable evidence, including the
     opinions of a treating physician. But courts have no
     warrant to require administrators automatically to accord
     special weight to the opinions of a claimant's physician;
     nor may courts impose on administrators a discrete burden

                                   22
     of explanation when they credit reliable evidence that
     conflicts with a treating physician's evaluation.” Id.
     at 1966-67.

Therefore, MetLife appropriately considered Vercher’s treating

physicians’ diagnoses, however, it was not required to give those

opinions determinative weight.

                           Conclusion

     We need not determine which ASA controlled Vercher’s claim,

because we hold that Alexander and MetLife applied a legally

correct construction of the plan and its terms.     Based on our

review of the record, we find that the facts underlying MetLife’s

decision to deny benefits support that decision, and therefore it

was not an abuse of discretion.

     For the foregoing reasons, we conclude that the district

court’s grant of summary judgment is

                           AFFIRMED.




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