     Case: 09-30381     Document: 00511007186          Page: 1    Date Filed: 01/19/2010




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

                                                  FILED
                                                                          January 19, 2010

                                       No. 09-30381                    Charles R. Fulbruge III
                                                                               Clerk

DARLENE L MCDONALD

                                                   Plaintiff - Appellant
v.

HARTFORD LIFE GROUP INSURANCE COMPANY

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                No. 2:06-CV-3015


Before KING, GARZA, and HAYNES, Circuit Judges.
PER CURIAM:*
        Darlene McDonald, an office manager, suffers from degenerative disc
disease in her spine. Following a surgical procedure intended to alleviate her
back pain, she ceased working and applied for long-term disability benefits
under her employer’s ERISA plan with Hartford Life Group Insurance Company.
After reviewing McDonald’s medical records and interviewing her treating
physicians, Hartford denied benefits, finding that she was capable of performing
sedentary work and therefore did not meet the plan’s definition of “disabled.”

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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McDonald brought two administrative appeals, both of which Hartford denied.
McDonald brought suit, alleging Hartford abused its discretion by denying her
claim.     The district court granted summary judgment for Hartford, and
McDonald appeals. We affirm.
                              I. BACKGROUND
         A. McDonald’s Job Requirements & Long Term Disability Policy
         Darlene McDonald (McDonald) worked as an office manager, business
manager, and property manager at the law firm of Bruno & Bruno, LLC (B&B)
starting in February 2002. Her job required frequent computer use, prolonged
sitting, standing, and walking. She also had to frequently bend, stoop, and reach
while filing employee information. Any lifting required was normally under ten
pounds, but occasionally it might exceed this amount.
         B&B offered long term disability insurance coverage for its employees
through CNA Group Life Assurance Company (now known as Hartford Life
Group Insurance Company, or Hartford). Under B&B’s policy, an individual
qualifies for long term disability benefits if the individual is sick or injured
during a 90-day elimination period (beginning on the date of the onset of
disability) and for another 24 months following the end of the elimination period.
The policy refers to this initial time period (the 90-day elimination period plus
24 months) as the “Occupation Qualifier” period, but it is also known in the
insurance industry as the “Own Occupation” period.       To receive benefits under
the policy during the Own Occupation period, the individual must continuously
meet the definition of “disabled” for the entire period.       The policy defines
“disabled” as “[i]njury or [s]ickness caus[ing] physical or mental impairment to
such a degree of severity that [the individual is] 1) continuously unable to
perform the [m]aterial and [s]ubstantial [d]uties of [her] [r]egular [o]ccupation;




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2) and not [g]ainfully [e]mployed.” 1 The policy is governed by the Employee
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., and
gives Hartford discretionary authority over the interpretation of the policy and
eligibility decisions.
                         B. McDonald’s Injury and Treatment
       In July 2003, McDonald began experiencing headaches and back pain. She
suffered a herniated disc in a car accident in June 2004, which exacerbated her
pre-existing symptoms. After the accident, she began seeing Dr. Evalina Burger,
an orthopedic surgeon. In July 2004, Dr. Burger determined that McDonald
suffered from degenerative disc disease 2 in both the lumbar and cervical regions
of her spine, but she did not think that surgery would help at the time. After a
November 2004 appointment, Dr. Burger recommended that McDonald avoid
“prolonged sitting in front of [a] computer” and limit any lifting. Eventually, Dr.
Burger recommended cervical fusion surgery between vertebrae 4–5, 5–6, and
6–7.
       Dr. Burger referred McDonald to Dr. John Steck, a neurosurgeon, who
concurred in recommending surgery after reviewing McDonald’s MRIs. Dr.
Steck performed surgery on McDonald’s lumbar spine on December 28, 2004;



       1
          The policy defines “gainfully employed” as “the performance of any occupation for
wages, renumeration or profit, for which you are qualified by education, training or experience
on a full-time or part-time basis, and which provides you with substantially the same earning
capacity as your former earning capacity prior to the start of your disability.”
       2
          Degenerative disc disease is also known as spondylosis or osteoarthritis. Stedman’s
Medical Dictionary defines spondylosis as “Ankylosis of the vertebra; often applied
nonspecifically to any lesion of the spine of a degenerative nature.” STEDM AN ’S MEDICAL
DICTIONARY 1813 (28th ed. 2006). Stedman’s describes osteoarthritis as: “Arthritis
characterized by erosion of articular cartilage, either primary or secondary to trauma or other
conditions, which becomes soft, frayed, or thinned with eburnation of subchondral bone and
outgrowths of marginal osteophytes; pain and loss of function result; mainly affects weight-
bearing joints, is more common in old people and animals.” Id. at 1388. “Ankylosis” is defined
as “[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony
union across the joint; fusion.” Id. at 95.

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McDonald continued working full-time at B&B until December 27, 2004. At the
time of the surgery, it was unclear how successful the procedure would be,
particularly because the degenerative disc disease affected more than just the
lumbar spine. Following the surgery, McDonald reported improvement in her
pain but MRIs continued to show evidence of degenerative disc disease. In
February 2005, six weeks after the surgery, Dr. Steck noted that McDonald was
doing very well and gave her permission to return to work on a part-time basis
(four hours a day, three days a week). Dr. Steck’s final chart note for McDonald
was dated July 6, 2005, and shows that her MRI reflects “cervical and lumbar
spondylosis with arthritic and degenerative changes in the cervicothoracic
spine.” McDonald attempted to return to work for a period of time, but soon
found it too painful. McDonald applied for long-term disability benefits in June
2005 and her final day of work at B&B was October 12, 2005.
       Beginning in October 2004, McDonald started treatment with Dr. Paul
Hubbell, a pain management specialist, who determined in a February 13, 2006,
letter to Hartford that McDonald “may be able to perform part-time work” but
could not return to work on a full-time basis as a result of her “significant
arthritic complaints in the cervical spine which cause reflex [sic] significant
muscle spasms, headaches, and limitation of position.” Dr. Hubbell also noted
in the February 2006 letter that McDonald’s subjective complaints of pain were
supported by objective findings of facet pathology and disc pathology, but he also
recommended that she receive additional pain therapy, which he predicted
might “significantly improve her physical activity capabilities.”3                McDonald



       3
        In this letter, Dr. Hubbell seems to advocate strongly for McDonald to receive cervical
facet radiofrequency treatment, and he complains that McDonald’s health care provider
(Coventry Health Care) failed to allow additional testing that would objectively demonstrate
her need for this type of treatment. However, this advocacy seems misplaced, as
Hartford—the disability benefits provider—is unrelated to Coventry—the health insurance
provider.

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reported that her back pain improved some after her surgery, but it has since
fluctuated; she still complains of headaches and muscle spasms. Because of her
pain, she requires help with her personal grooming and with maintaining her
household.
                       C. Administrative Claims Process
      In June 2005, McDonald filed a claim for disability benefits with Hartford.
According to Hartford, the 90-day elimination period began December 28,
2004—the day McDonald underwent surgery—and ended March 28, 2005. The
Own Occupation period lasted from December 28, 2004, to March 28, 2007.
Therefore, to qualify for disability benefits, McDonald needed to show that she
met the definition of “disabled” for the duration of the Own Occupation period.
McDonald submitted documentation from Dr. Steck stating that she should not
bend, stoop, climb, or lift more than ten pounds.        Hartford gathered other
medical records, including the claim notes, Dr. Steck’s L[ong] T[erm] D[isability]
Physician’s Statement and Functional Assessment Tool, clinical notes from Drs.
Steck and Hubbell, the discharge summary after the surgery, the operative
report, and four MRIs of her lumbar and cervical spine.           The Functional
Assessment Tool indicates that Dr. Steck did not think that McDonald was
capable of performing full time work involving “sitting, standing, and walking
for varying periods of time, typing on a computer, some bending, stooping, and
reaching, regularly lifting items under [ten pounds] and occasionally lifting
items over [ten pounds]” as of July 14, 2005. Hartford interviewed McDonald
and determined that she was able to get help at work to avoid bending, stooping,
and lifting and that B&B was cooperative, allowing her to get help with tasks.
      After compiling McDonald’s medical records, Hartford hired Dr. Bruce
LeForce, a physician with Reed Review Services, to review McDonald’s file. Dr.
LeForce determined that McDonald was:



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      capable of sitting up to eight hours per day given an opportunity for
      frequent breaks and changes in position. She can stand and walk
      occasionally. She cannot lift or carry more than ten pounds and this
      can be done only occasionally. She can exert a negligible amount of
      force continuously. She cannot climb, bend, or stoop. These
      limitations should be considered permanent. . . . She can work full-
      time given the other restrictions and limitations. . . . [T]he objective
      findings indicate that she is capable of full-time work provided that
      she is limited to a sedentary type job with no climbing, bending, or
      stooping.
Dr. LeForce concluded that McDonald’s MRI showed “only some degenerative
changes without spinal stenosis or evidence of nerve root impingement.” In a
letter dated September 30, 2005, Hartford determined that the information
contained in McDonald’s file “fail[ed] to support an inability to perform the
material and substantial duties of [her] regular occupation” and therefore she
was ineligible for benefits.
      McDonald appealed the denial and presented additional information for
Hartford’s review.4 Hartford hired Dr. Barry Turner, an orthopedic surgeon
employed by University Disability Consortium (UDC), to review the original file
and the new documents submitted by McDonald.                  According to Hartford’s
January 26, 2006, letter, Dr. Turner did not review Dr. LeForce’s conclusions,
but independently reviewed the file and came to his own conclusions. Dr. Turner
attempted to contact McDonald’s treating physicians. He was unable to speak
directly with Dr. Steck, but he spoke with a person in Dr. Steck’s office who


      4
        According to Hartford’s January 25, 2006, denial letter, McDonald submitted:
      Letter to Attorneys from Dr. Evalina Burger dated July 12, 2004; A physical
      examination form dated 7/12/04 which was not complete; A Physical Therapy
      referral dated 7/12/04; A Spine Assessment Form undated; MRI of the Cervical
      Spine dated 9/10/04; Clinic note[s] dated 10/4/04 through 11/1/04 from Dr.
      Evalina Burger; Prescription for medication [including Vicodin] dates 11/1/04;
      LTD Physician’s Statement; MRI of the Cervical Spine dated 10/19/05;
      Evaluation by Dr. Paul J. Hubbell dated 10/26/04; Office notes from Dr. Paul J.
      Hubbell dated 10/26/04 through 8/16/05; Consent forms and clinic record from
      [surgery] dated 12/13/04.

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indicated that McDonald’s last visit was in October 2005, at which time Dr.
Steck’s notes reflected that sedentary-level work would be acceptable, without
any limitations as to time.
       Dr. Turner reported that the records he reviewed supported the conclusion
that McDonald suffered “generalized cervical and lumbar spondylosis with
arthritic changes consistent with her age,” and had undergone a “satisfactory
cervical and lumbar diskectomy [the surgical procedure] with fusions and no
complications or resultant radiculopathy, myelopathy, or nerve root compression
noted.” Dr. Turner concluded that McDonald’s condition was “secondary to the
normal aging process” and found “no evidence of any significant impairment.”
He opined that “there is no reason that oral analgesics and anti-inflammatory
therapy would not be effective” and “provide[d] no restrictions or limitations that
would preclude full-time work activity.” In a letter dated January 26, 2006,
Hartford informed McDonald that, following the appeal, it appeared that she “at
a minimum retain[ed] the functional capacity for sedentary-type work activity”
and therefore did not meet the policy’s definition of “disabled.”
       McDonald again requested that Hartford reconsider its decision, and she
submitted additional documentation, including letters from McDonald regarding
her pain; a job description for her position at B&B; Dr. Hubbell’s February 2006
letter regarding her subjective pain; and a MRI of her cervical spine from
October 2005, which she had previously submitted. Hartford hired another UDC
orthopedic surgeon, Dr. Robert Pick, to conduct the second review. Dr. Pick
reviewed all of the previous evidence submitted by McDonald.5 Dr. Pick spoke



       5
         The record does not explicitly show whether Dr. Pick reviewed Dr. LeForce’s or Dr.
Turner’s evaluations. He did not specifically list the other doctors’ reports in his review of
McDonald’s file, and Hartford did not discuss this issue in its final denial letter. However,
Hartford explicitly mentioned in the denial letter from the first appeal that Dr. Turner did not
review Dr. LeForce’s conclusions; this discrepancy raises the question whether Dr. Pick had
access to the other reviewing physicians’ conclusions.

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with Dr. Burger, who reported only that her last visit with McDonald was in
November 2004 and she did not have access to McDonald’s records, as they had
been affected by Hurricane Katrina. Dr. Pick also spoke with Dr. Hubbell, who
stated that “the only objective finding is the MRI,” and when asked if McDonald
could engage in sedentary work, replied: “Instead of guessing, get a Functional
Capacity Evaluation.” Dr. Pick called Dr. Steck and spoke with him after hours
when he did not have access to McDonald’s records; Dr. Steck reported from
general memory that McDonald could engage in sedentary work for eight hours
a day.
         From his review of the documents and his conversations with the treating
physicians, Dr. Pick concluded that “there is no documentation or substantation
[sic] that Ms. McDonald cannot engage in at least the sedentary–light work
category on full-time basis.” He observed that the file indicated McDonald had
“degenerative arthritic changes of the cervical and lumbar spine”; her surgery
had been successful; and she had “satisfactory postoperative progress and
recovery with improvement in [her] preoperative symptoms.” He noted that “no
specific intervention has been recommended other than conservative care” and
“the     case    file   does   not    docum ent      any    su b stantive   objective
orthopedic/musculoskeletal findings that would prevent Ms. McDonald from
engaging in full-time work activities in at least the sedentary–light work
category . . . .” He concluded that McDonald’s file did not “establish a complete
impairment from gainful employment.”            Based on Dr. Pick’s review and
conclusions, Hartford sent McDonald a letter on April 26, 2006, declining to
change the prior decision to deny benefits. The letter stated that it was “final
and binding” and that McDonald had “exhausted all [a]dministrative remedies.”
                                     D. Litigation




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      McDonald filed suit against B&B 6 and Hartford on June 12, 2006, under
ERISA.      McDonald alleged that Hartford failed to pay benefits under the
insurance policy as required by 29 U.S.C. § 1132(a)(1)(B) and that Hartford
breached its fiduciary duties under 29 U.S.C. § 1104(a). McDonald and Hartford
both filed motions for summary judgment. The district court determined that
the administrative record was incomplete because Hartford had relied upon Dr.
Pick’s discussion with Dr. Steck after hours, when Dr. Steck was at the health
club and did not have access to McDonald’s records. On March 28, 2008, the
district court remanded to Hartford for further clarification of Dr. Steck’s
position, with instructions that the remand was “for the limited purpose of
interviewing and/or deposing Dr. Steck to clarify his position as regards
[McDonald’s] limitations.”
      Following another interview with Dr. Steck, Hartford noted that his
opinion was that “McDonald’s ongoing complaints of pain are subjective in
nature” and he could not determine at this stage whether she could work. In a
November 21, 2008, letter to McDonald’s attorney, Hartford determined that any
new information from the interview of Dr. Steck was “not compelling based on
the totality of the facts presented” and declined to change its prior decision.
McDonald re-urged her motion for summary judgment, as did Hartford.
      On October 27, 2007, before the district court issued its remand order,
McDonald received a Declaration of Disability from the Social Security
Administration (SSA award). McDonald did not inform the district court of the
award at the time, but she did forward the award, with the accompanying letter
of reasons, to Hartford shortly after the case was remanded and requested that
Hartford consider the award. In its November 21, 2008, letter, Hartford did not
mention the award and the record does not show if Hartford included the award



      6
          McDonald later voluntarily dismissed B&B.

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in its investigation of McDonald’s claim. The first time that McDonald informed
the district court of the SSA award was in her re-urged motion for summary
judgment.
      The district court granted summary judgment for Hartford. In its final
order on April 29, 2009, the district court declined to give controlling weight to
the opinions of McDonald’s treating physicians and found that “Hartford
conducted a thorough and reasonable analysis of McDonald’s disability, basing
its initial decision and two appeal decisions on the opinions of three separate,
independent physicians.” The district court noted that McDonald admits her job
is “primarily sedentary” and that she “gets help filing to avoid bending and
stooping.” Furthermore, the district court pointed out that “both her treating
physicians and Hartford’s physicians have agreed she should be able to perform
[sedentary work].”    The district court rejected McDonald’s argument that
Hartford was bound to consider her SSA award—as Hartford had already
reached its final decision more than one year prior to the award, it could not
have considered the additional information, particularly in light of the district
court’s specific instructions limiting the scope of the inquiry on remand.
McDonald timely appealed.
                               II. DISCUSSION
      McDonald raises two main points on appeal. She argues that the district
court improperly refused to allow her to supplement the administrative record
with her SSA award, and she contends that the district court erred in finding
that Hartford’s decision to deny benefits was supported by substantial evidence.
                A. Supplementation of Administrative Record
      McDonald argues that the district court abused its discretion by declining
to permit McDonald to enter her SSA award into the administrative record. The
SSA award was issued October 23, 2007, more than one year after Hartford
issued its final decision in April 2006. McDonald argues that the district court’s

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remand for further investigation re-opened the administrative process, making
it proper to supplement the administrative record with the SSA award. Hartford
argues that, given the limited purpose of the remand, there was no obligation for
Hartford to consider new evidence outside of the district court’s instructions and
the district court acted within its discretion in declining to consider the SSA
award.     The determination of whether evidence should be included in the
administrative record is an evidentiary decision, and we review for abuse of
discretion. Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 n.12
(5th Cir. 2007).
       When conducting abuse of discretion review of a denial of benefits based
on an administrative record, we have generally required that the scope of review
be limited to facts known to the plan administrator at the time of the benefits
decision. S. Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 102 (5th Cir.
1993). However, we have recognized certain limited exceptions to this rule. See
Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999) (en banc)
(“To date, th[e] exceptions have been related to either interpreting the plan or
explaining medical terms and procedures relating to the claim.”).7                      These
exceptions have been judged on a case-by-case basis, and we have declined to
adopt any per se rules in this area. Cf. Duhon v. Texaco, Inc., 15 F.3d 1302, 1309
(5th Cir. 1994).
       When compiling the administrative record, the plan administrator must
identify what evidence constitutes the administrative record, and the claimant


       7
         Metropolitan Life Insurance Co. v. Glenn, — U.S. —, 128 S.Ct. 2343, 2350 (2008),
abrogated Vega to the extent that Vega adopted a “sliding-scale” methodology of weighing
conflicts of interest. See Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247 n.3 (5th Cir.
2009). However, we have maintained that “much of our ‘sliding scale’ precedent is compatible
with the Supreme Court’s newly clarified ‘factor’ methodology, and Glenn does not supercede
that precedent to the extent it reflects the use of a conflict as a factor that would alter the
relative weight of other factors.” Id. Therefore, Vega continues to be good law for propositions
unrelated to the “sliding scale” method of reviewing alleged conflicts of interest.

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must have “a reasonable opportunity to contest whether that record is complete.”
Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, 215 F.3d 516, 521
(5th Cir. 2000). While the administrative record is generally limited to “relevant
information made available to the administrator prior to the complainant’s filing
of a lawsuit and in a manner that gives the administrator a fair opportunity to
consider it,” we have attempted to avoid abuse or mistake by allowing “the
claimant’s lawyer [to] add additional evidence to the administrative record
simply by submitting it to the administrator in a manner that gives the
administrator a fair opportunity to consider it.” Id. at 521 & n.5. We have been
clear, however, that “the district court is precluded from receiving evidence to
resolve disputed material facts—i.e., a fact the administrator relied on to resolve
the merits of the claim itself.” Vega, 188 F.3d at 299. Had the district court not
remanded to Hartford for further investigation of Dr. Steck’s opinion, the
question of whether the SSA award should be included in the administrative
record would be clear: the administrative record closed when McDonald filed suit
in June 2006. Cf. Moore, 993 F.2d at 102. The SSA award does not fall into the
two acknowledged exceptions: evidence interpreting the plan or explaining
medical terms and procedures.
      The timing of the remand order complicates the analysis somewhat, for
Estate of Bratton suggests that McDonald had the opportunity to offer additional
information to Hartford, so long as the submission of new information was
conducted “in a manner that gives the administrator a fair opportunity to
consider it.” Estate of Bratton, 215 F.3d at 521 n.5. Assuming without deciding
that McDonald could have supplemented the record on remand, she missed her
opportunity. The SSA award was issued on October 23, 2007, five months before
the district court remanded the case to Hartford on March 28, 2008.            Yet
McDonald did not bring the SSA award to the district court’s attention until
after the conclusion of the remand period, despite at least one opportunity to do

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so. For example, Hartford moved for reconsideration of the remand order, which
McDonald opposed in writing—without mention of the SSA award. McDonald
was aware of the district court’s specific instructions on remand but did not ask
the district court to expand the scope of the remand to include consideration of
the award. The first mention of the SSA award in McDonald’s filings is in her
January 23, 2009, reurged motion for summary judgment. In light of the district
court’s very specific instructions limiting the scope of the remand and
McDonald’s failure to submit the award for consideration at an appropriate time,
the district court did not abuse its discretion in refusing to consider the SSA
award and in approving Hartford’s decision not to consider the award.
                            B. Substantial Evidence
      We typically follow a two-step process to determine if an ERISA plan
administrator has abused its discretion, asking first if the plan administrator’s
determination was legally correct; if it is not, we proceed to the second question
of whether the decision was an abuse of discretion. Holland v. Int’l Paper Co.
Ret. Plan, 576 F.3d 240, 246 n.2 (5th Cir. 2009). However, this process is not
rigid; “we may skip the first step if we can more readily determine that the
decision was not an abuse of discretion.” Id. Here, we may proceed directly to
the second step. McDonald raises several points that she contends either justify
a less deferential standard of review or show abuse of discretion by Hartford.
      We review a grant of summary judgment in an ERISA case de novo,
applying the same standard as the district court. Wade v. Hewlett–Packard Dev.
Co. LP Short Term Disability Plan, 493 F.3d 533, 537 (5th Cir. 2007). The
Supreme Court requires that a denial of benefits be reviewed under a de novo
standard “unless the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits.” Firestone Tire &
Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Abuse of discretion is the proper
standard for review of “determinations made pursuant to a plan that gives the

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administrator discretionary authority to determine eligibility,” as this plan does.
Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 598 (5th Cir. 1994).
Where, as here, a challenge to a denial of benefits does not involve the
interpretation of plan terms but disputes whether an individual’s conditions
qualify as a disability, the inquiry involves factual determinations; therefore,
abuse of discretion is the proper standard. See Wade, 493 F.3d at 540.
      Under an abuse of discretion standard, “[i]f the plan fiduciary’s decision
is supported by substantial evidence and is not arbitrary or capricious, it must
prevail.” Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th
Cir. 2004).   “‘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.’” Corry, 499 F.3d at 398 (quoting Ellis, 394
F.3d at 273). If a decision is made “without a rational connection between the
known facts and the decision or between the found facts and the decision,” the
decision is arbitrary. Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97
F.3d 822, 828 (5th Cir. 1996). “An administrator’s decision to deny benefits must
be ‘based on evidence, even if disputable, that clearly supports the basis for its
denial.’” Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 342 (5th Cir. 2002)
(quoting Vega, 188 F.3d at 299). If the administrator’s decision to deny a claim
is supported by “‘some concrete evidence in the administrative record,’” the
administrator did not abuse discretion. Id. (quoting Vega, 188 F.3d at 302). The
reviewing court may not substitute its judgment for that of the plan
administrator. Wade, 493 F.3d at 541.
                        1. Structural Conflict of Interest
      McDonald complains that Hartford’s dual role as insurer and plan
administrator gave rise to a conflict of interest that justifies de novo review,
rather than abuse of discretion; alternatively, McDonald argues that Hartford’s
structural conflict suffices to show abuse of discretion. The Supreme Court

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recognized in Metropolitan Life Insurance Co. v. Glenn that when “a plan
administrator both evaluates claims for benefits and pays benefits claims,” it
creates a structural conflict of interest. — U.S. at —, 128 S. Ct. at 2348. “If a
benefit plan gives discretion to an administrator or fiduciary who is operating
under a conflict of interest, that conflict must be weighed as a factor in
determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115
(internal modification and quotation marks omitted). “If the administrator has
a conflict of interest, we weigh the conflict of interest as a factor in determining
whether there is an abuse of discretion in the benefits denial, meaning we take
account of several different considerations of which conflict of interest is one.”
Holland, 576 F.3d at 247 (internal quotation marks omitted). If claimants do not
present evidence of the degree of the conflict, the court will generally find that
any conflict is “not a significant factor.” Id. at 249 (finding that where claimant
“adduced no evidence . . . that [administrator’s structural] conflict affected its
benefits decision or that it had a history of abuses of discretion,” any conflict was
insignificant in abuse of discretion analysis).
      Here, the district court considered Hartford’s “mere technically dual role”
and determined that abuse of discretion was the proper standard.                  An
examination of the record bears out the district court’s determination: McDonald
has not pointed to any specific evidence of a history of abuses of discretion or of
how Hartford’s structural conflict of interest may have affected its benefits
decision in this particular case. In addition, the record does not show that
McDonald attempted to conduct discovery on any potential conflicts of interest.
Rather, the record indicates that Hartford conducted nothing less than a “careful
investigation” of McDonald’s claim. See Corry, 499 F.3d at 398 n.11 (finding that
any potential structural conflict of interest did not adversely affect plan
administrator’s handling of claim where administrator spent over two and a half
years reviewing the claim and hired three specialists who gave “clear and

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                                  No. 09-30381

unequivocal” opinions). Here, Hartford engaged three outside specialists to
review McDonald’s file; McDonald submitted additional documentation twice;
and Hartford entertained two appeals. McDonald has failed to put forth any
evidence of the degree of the alleged conflict, and she has also failed to show that
any structural conflict impacted Hartford’s decision in her case. Therefore, to
the extent that Hartford’s dual role as both insurer and plan administrator may
create a conflict, that conflict is not a significant factor that would justify a
change in the standard of review. The district court did not err in applying an
abuse of discretion standard to Hartford’s decision or in concluding that any
alleged conflict did not support McDonald’s claim that Hartford abused
discretion in denying benefits.
                   2. Possible Bias by Reviewing Physicians
      McDonald argues that because the three reviewing physicians are
employed by agencies that contract with Hartford, the physicians were biased
in favor of Hartford; therefore, Hartford abused its discretion in relying on their
opinions. McDonald points to several federal district court cases that note a
potential conflict of interest on the part of UDC, the organization that employs
Drs. Turner and Pick, because of its “significant and ongoing relationship” with
Hartford. See, e.g., Caplan v. CNA Fin. Corp., 544 F. Supp. 2d 984, 991–92 (N.D.
Cal. 2008) (reviewing Hartford’s denial of claim with “skepticism” because
structural conflict of interest accompanied by “reliance on UDC, a company
which Hartford knows benefits financially from doing repeat business with it”).
McDonald notes that Drs. Turner and Pick have been criticized by district courts
for deficient reviews in similar cases. Hicklin v. Hartford Life & Accident Ins.
Co., No. CV06-4543, 2007 WL 4729856, at *7–8, *11 (C.D. Cal. Dec. 12, 2007)
(criticizing Hartford for “ignor[ing] the obvious, comb[ing] the record and
[taking] selective evidence out of context as a pretext to deny” a claim, detailing
misstatements and omissions by Dr. Turner, and describing Dr. Pick’s review as

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                                  No. 09-30381

“deficient”).   Hartford, in turn, cites several district court cases affirming
Hartford’s claim decisions that relied on opinions of UDC physicians. See, e.g.,
Singley v. Hartford Life & Accident Ins. Co., 497 F. Supp. 2d 807, 812 n.9 (S.D.
Miss. 2007) (upholding Hartford’s denial of claim even though Hartford used
reviewing physicians from UDC, including Dr. Turner); Dowdy v. Hartford Life
& Accident Ins. Co., 458 F. Supp. 2d 289, 296 n.9 (S.D. Miss. 2006) (same).
      While the Fifth Circuit has yet to discuss in great detail the impact of
potential physician bias on the ERISA standard of review, we have briefly
dismissed similar arguments in the past.         For example, in Sweatman v.
Commercial Union Insurance Co., 39 F.3d at 601 n.14, we considered and
rejected the argument that reviewing physicians were biased, based solely on
their employment with a contracting agency.         In that case, the physicians
reviewed twenty to thirty files per month for a contracting agency, but the
claimant pointed to no evidence to show that the physicians were financially
dependent upon the agency or the plan administrator. Id. We noted that “the
only way for [plan administrators] to meet [the claimant’s] standard for
impartiality would be to seek physicians willing to volunteer their time to review
the medical files of disability claimants.” Id. The Seventh Circuit recently
examined a similar issue when a claimant argued that de novo review—rather
than abuse of discretion—was warranted because the plan administrator used
in-house doctors for its file reviews. Davis v. Unum Life Ins. Co. of Am., 444
F.3d 569, 575–76 (7th Cir. 2006). The Seventh Circuit held that absent evidence
of “any specific incentive [for the in-house doctors] to derail [a] claim,” such as
giving the doctors “some specific stake in the outcome of [a] case,” the theoretical
argument that “in-house doctors have an inherent conflict in every case” is
insufficient to change the standard of review. Id.
      Here, McDonald does not appear to have pursued discovery on this issue,
nor has she presented the type of specific evidence of bias that would show abuse

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                                  No. 09-30381

of discretion or justify a change in the standard of review. While she points to
the conclusions of district courts and cites evidence presented in other cases, the
record before us contains no documentary or testimonial evidence regarding the
financial relationship between Hartford, UDC, and the individual physicians.
Furthermore, McDonald does not present any evidence showing an incentive for
the doctors to undermine her case in particular. McDonald’s attempts to provide
specific evidence of bias fail to rise past the level of conclusory allegations; the
district court did not err in finding that Hartford did not abuse its discretion on
this point.
                        3. Lack of Physical Examination
      McDonald argues that Hartford abused its discretion by failing to order a
new physical examination, or Functional Capacity Examination (FCE), as Drs.
Hubbell and Steck recommended during the administrative review process.
However, the policy places the burden on the claimant to provide proof of
loss—at the claimant’s own expense—including “[o]bjective medical findings
which support [the] disability. Objective medical findings include but are not
limited to tests, procedures, or clinical examinations standardly [sic] accepted
in the practice of medicine, for [the] disabling condition(s).” In addition,“the
burden is not solely on the administrator to generate evidence relevant to
deciding the claim.” Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329,
335 (5th Cir. 2001) (modification and internal quotation marks omitted);
Gothard v. Metro. Life Ins. Co, 491 F.3d 246, 249 & n.7 (5th Cir. 2007) (declining
to require a physical examination prior to denial of claim and citing cases in
support); cf. Holland, 576 F.3d at 250 (declining to require administrator to
consult with vocational expert, and quoting Duhon, 15 F.3d at 1309, for
proposition that a “reviewing court [may] decide, on a case-by-case basis,
whether under the particular facts the plan administrator abused his discretion



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                                       No. 09-30381

by not obtaining the opinion of a vocational rehabilitation expert”). McDonald
fails to show abuse of discretion on this point.
              4. Lack of Deference to Treating Physicians’ Opinions
       McDonald contends that Hartford abused its discretion by improperly
discounting the opinions of her treating physicians. However, the Supreme
Court has explicitly disapproved of a “treating physician” rule in the ERISA
context and held that “plan administrators are not obliged to accord special
deference to the opinions of treating physicians.” Black & Decker Disability Plan
v. Nord, 538 U.S. 822, 825 (2003). Administrators do not bear “a heightened
burden of explanation . . . when they reject a treating physician’s opinion.” Id.
at 830. “So long as the [p]lan [a]dministrator’s decision is rationally related to
the evidence, we do not require the [p]lan [a]dministrator to credit a particular
area of expertise when deciding on an applicant’s prognosis.” Holland, 576 F.3d
at 249, 250 (quoting language from Black & Decker, 538 U.S. at 834, that courts
may not “impose on plan administrators a discrete burden of explanation when
they credit reliable evidence that conflicts with a treating physician’s
evaluation”).
       While the record does contain some evidence indicating that McDonald
suffers from some permanent health issues,8 Hartford’s decision to deny benefits
also finds support in the record. The fact that Hartford’s support comes from
reviewing physicians does not render its decision arbitrary or capricious; even



       8
        McDonald relies on a letter from Dr. Hubbell contending that it is “very unlikely that
[McDonald] will be able to return to work in any type of gainful employment” and concluding
that she is “totally and permanently disabled due to her degenerative condition of her cervical
and lumbar spine causing her to have persistent pain and muscle spasms.” This letter was
written on August 21, 2007, and forwarded to Hartford on September 4, 2007. However, as
discussed above, the administrative record closed in June 2006, when McDonald filed suit, and
McDonald did not request that the letter be included in the record during the remand.
Therefore, this letter from Dr. Hubbell is not part of the administrative record and we cannot
consider it when analyzing whether Hartford acted arbitrarily or capriciously.

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                                 No. 09-30381

McDonald’s physicians have not expressed consistent opinions regarding the
extent of her disability and her ability to perform sedentary work.
      For example, during the remand period, when Hartford re-interviewed Dr.
Steck—the neurosurgeon who performed McDonald’s surgery—he did not give
a clear “yes” or “no” answer when asked about the extent of McDonald’s
disability. The interviewer asked: “Is there anything medically really why
[McDonald] could not have done [sedentary work] three months post-op?” Dr.
Steck replied:
      We are dealing basically with subjective complaints but they are
      based on objective data in that she has degenerative disc disease in
      the lumbar spine[;] she has documented lumbar disc herniation that
      was bad enough to require a lumbar decompression fusion, and I
      have dealt with enough of these patients [to know] that there will
      be a significant subset who will not return to any type of
      employment due to complaints of pain and there is no way I can
      prove that she doesn’t have pain, we could always say well I don’t
      see why she can’t work, most people could but not everybody . . . .
      The objective data is that, yes, she did have surgery, the subjective
      component is that although she is neurologically normal and
      everything looks just fine, although many people in this situation
      would be able to work although she tells me that she actually is
      better from the surgery, she had it, but doctor I just hurt too much
      to work. Based on that I just can’t sign a letter or do a dictation
      saying that I think she can work.
(emphasis added). While Dr. Steck expressed concern for McDonald’s subjective
complaints of pain and noted that the subjective complaints were based
objectively on her degenerative disc disease, he also made the statement that
“she is neurologically normal and everything looks just fine.”
      When Hartford reached its final decision, it had consistent reports from
the three reviewing physicians indicating that McDonald did not meet the
definition of “disabled”; it had Dr. Steck’s mixed statement; and it had Dr.
Hubbell’s letter dated February 13, 2006, which recommended that McDonald



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                                   No. 09-30381

receive additional pain treatment and indicated: “I know that she can’t perform
full-time work at this time, but I believe that if her cervical pain were resolved,
she would be able to return to at least twice as much work as she is able to do
today if not full-time work.” Hartford’s decision to deny benefits has clear
support in the administrative record, and the decision is rationally related to the
evidence Hartford had before it at the time of the decision. See Holland, 576
F.3d at 249.    “[T]he job of weighing valid, conflicting professional medical
opinions is not the job of the courts . . . [but rather the job of] the administrators
of ERISA plans,” Corry, 499 F.3d at 401, and therefore McDonald’s argument
that Hartford failed to give adequate weight to the opinions of her treating
physicians must fail. Hartford did not abuse its discretion in adopting the
opinions of the reviewing physicians over the treating physicians.
           5. Lack of Consideration of Subjective Complaints of Pain
      McDonald argues that Hartford abused its discretion by failing to give
adequate weight to her consistent complaints of pain. To support her argument,
McDonald relies on Audino v. Raytheon Company Short Term Disability Plan,
129 F. App’x 882 (5th Cir. 2005) (per curiam), where we reversed a summary
judgment in favor of a plan administrator that had denied benefits to a claimant
who complained of pain. In Audino, we found an abuse of discretion because the
administrator
      ignored [the claimant’s] consistent complaints of pain as subjective,
      either minimized or ignored objective evidence of disability
      corroborating those complaints, and concluded that the evidence did
      not show an inability to do her job functions without analyzing the
      effect that her conditions would have on her ability to perform her
      specific job requirements.
129 F. App’x at 885. However, in that case the claimant presented specific
evidence of misstatements and oversights by the reviewing physicians that the
plan administrator relied upon in denying the claim. Id. at 884–85 (noting that



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                                    No. 09-30381

one physician misstated objective test results, while another mentioned exam
results in a summary of evidence but failed to discuss those results in analysis
of whether claimant was disabled).
      More applicable than Audino is the case of Corry v. Liberty Life Assurance
Co. of Boston, where we addressed in detail whether an administrator’s review
adequately considered a claimant’s subjective complaints of pain. 499 F.3d at
399–401. There, the claimant’s experts opined that she was disabled due to
fibromyalgia—a diagnosis reached by reliance on the claimant’s subjective
reports of pain. Id. at 401. The plan administrator ultimately rejected the
claimant’s assertion that she was disabled, relying on the opinions of three
outside reviewing physicians. Id. All three reviewing physicians discussed the
claimant’s subjective complaints and her previous diagnosis of fibromyalgia in
their analyses; yet they each ultimately concluded that no medical evidence
existed establishing a disability.      Id.   In Corry, we concluded that this
constituted a “battle of the experts,” where the administrator was “vested with
discretion to choose one side over the other”; therefore, we rejected the argument
that the administrator “fail[ed] to consider and give proper weight to relevant
evidence” of subjective pain. Id.
      Here, Hartford and its reviewing physicians clearly “considered, evaluated,
and addressed” McDonald’s subjective complaints of pain; however, the
reviewing   physicians    still   reached     the   conclusion   that   McDonald’s
administrative record did not contain objective medical evidence of disability.
Corry, 499 F.3d at 401. The denial letters indicate that Hartford considered her
subjective complaints.    In the first denial letter, Hartford acknowledged
McDonald’s continuing neck pain and her “difficulties with pain” but concluded
that no neurological abnormalities were present and that the evidence did not
“support a functional impairment that would preclude [her] from performing the



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                                   No. 09-30381

material and substantial duties of [her] regular occupation on a full-time basis.”
When denying her first appeal, Hartford informed McDonald that:
        we considered your self-reported symptoms and to what extent the
        findings on physical examination and testing results confirm the
        symptoms. We also considered the impact the findings would have
        as far as your ability to funciton on a daily basis and how it would
        continuously affect your ability to perform your regular occupational
        work activity on a full-time basis.
In its final denial letter, Hartford mentioned that it had considered letters from
McDonald herself and from Dr. Hubbell detailing her subjective complaints. In
addition, the administrative record contains notes from an interview with
McDonald, detailing the impact of her pain on her daily life at work and at
home.
        The reviewing physicians also clearly considered and addressed
McDonald’s subjective complaints. Dr. LeForce, the initial reviewing physician,
noted “complaints of neck and low back pain,” and “continued neck pain.” On
the first administrative appeal, Dr. Turner discussed McDonald’s reports that
she suffers radiating low back pain, aggravated by sitting and walking and
partially relieved by rest, as well as chronic neck pain.          Finally, Dr. Pick
considered evidence that McDonald suffered from “chronic pain” and clinical
notes from her treating physicians regarding her subjective complaints,
including: “a history of an insult with severe low back pain and radiating right
pain and recent onset numbness in her upper extremities”; “lumbar pain as well
as leg pain”; “[s]he states the pain is getting worse”; “[s]he still has some low
back pain, some buttock pain, some chronic neck pain, but all those better than
preop.”    All three reviewing physicians considered McDonald’s subjective
complaints but ultimately concluded that these subjective complaints were
insufficient to support a finding of disability.




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                                  No. 09-30381

      Unlike in Audino, the reviewing physicians did not ignore McDonald’s
complaints but included them in their analyses. McDonald argues that the
reviewing physicians “mischaracterized the results of her MRIs,” but even Dr.
Steck, her treating physician, stated that McDonald was “neurologically
normal.”    Any difference of opinion between the reviewing and treating
physicians on the interpretation of her MRIs falls into Hartford’s area of
discretion; McDonald does not point to any affirmative misstatements of
objective test results of the kind presented in Audino.
      While Hartford’s conclusions conflict with Dr. Hubbell’s evaluation of
McDonald’s condition, Dr. Steck’s final interview with Hartford on remand
contains language that supports the conclusion that the record did not contain
objective medical evidence of disability. Hartford has discretion in this battle of
experts, and in the absence of evidence that Hartford failed to consider
McDonald’s complaints of pain, Hartford was within its discretion to accept the
opinions of its three qualified medical experts. Hartford’s decision was neither
arbitrary nor capricious on this point.
              6. Insufficient Evidence to Support Denial of Claim
      Finally, and more generally, McDonald complains that Hartford “cherry-
picked” quotes and facts out of the administrative record to support its decision
to deny her claim for benefits. However, under Fifth Circuit law, Hartford has
discretion under the plan to investigate the claim and draw the conclusions it
deems proper. “The law requires only that substantial evidence support a plan
fiduciary’s decisions, including those to deny or to terminate benefits, not that
substantial evidence (or, for that matter, even a preponderance) exists to support
the employee’s claim of disability.” Ellis, 394 F.3d at 273.
      Here, Hartford solicited the medical opinions of three separate physicians.
Drs. Turner and Pick are both board certified orthopedic surgeons, “specialists
and qualified experts in [a] field[] specifically related” to McDonald’s symptoms;

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                                      No. 09-30381

at least two of the three physicians reached their conclusions independently.9
Corry, 499 F.3d at 402. In Corry, we found it “indisputable that the medical
opinions of [the plan administrator’s] three consulting physicians . . . constitute
substantial evidence supporting [the disability decision].” Id. In addition to the
opinions of the three reviewing physicians, the administrative record contains
other evidence in support of Hartford’s decision: in particular, Dr. Steck’s
statement that McDonald was “neurologically normal and everything looks just
fine.” Furthermore, McDonald admitted that she gets help to fulfill the duties
of her job and that her employer has been cooperative and flexible. Hartford’s
decision does not need to be correct; it simply must not be arbitrary.                  Cf.
Gothard, 491 F.3d at 250 (“MetLife’s decision may not be correct, but we cannot
say that it was arbitrary.”). On the administrative record, Hartford’s decision
to deny her claim was supported by substantial evidence and there was no abuse
of discretion.
                                 III. CONCLUSION
       For the above reasons, we AFFIRM.




       9
       As discussed above, the record does not explicitly show whether Dr. Pick reviewed Dr.
LeForce’s or Dr. Turner’s evaluations.

                                            25
