                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                September 7, 2007
                            FO R TH E TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

    R OBIN CA M ER ON ,

                Plaintiff-Appellant,

    v.                                                   No. 06-5191
                                              (D.C. No. 04-CV-00948-CVE-SAJ)
    AM ERICA N ELECTRIC POW ER                           (N.D. Okla.)
    SERVICE CORP., a N ew York
    corporation qualified to do business in
    Oklahoma; CENTRAL AN D SOUTH
    W EST SERVICES, INC., a foreign
    corporation; PUBLIC SERVICE
    C OM PA N Y O F O K LA H O MA ,
    an O klahoma corporation; C ENTRAL
    A N D SO U TH WE ST C OR PO RATION
    EM PLOYEES’ DISABILITY
    IN CO M E PLA N ,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Robin Cameron worked as a customer service supervisor for Public Service

Company of Oklahoma, formerly a wholly owned subsidiary of Central South

W est Corporation (“CSW ”). She participated in CSW ’s Employees’ D isability

Income Plan (“CSW Plan”). After the Plan terminated her long-term disability

benefits and upheld the termination in administrative appeals, she challenged its

decision in federal district court under the Employee Retirement Income Security

Act, 29 U.S.C. §§ 1001-1461 (ERISA). The district court upheld the Plan’s

termination of her benefits.

      On appeal, M s. Cameron argues that: (1) the Plan used an inapplicable plan

document from a different plan, the A merican Electric Power Long Term

Disability Plan (“AEP Plan”), to terminate her benefits; (2) the determination to

terminate her benefits under an “any occupation” standard was made before that

standard properly applied to her; and (3) she remains entitled to “any occupation”

benefits because the definitions used to evaluate her claim under the CSW Plan

and the AEP Plan are different.

      W e begin by determining the standard of review of the CSW Plan’s denial

of benefits. The appropriate standard is whether its decision was arbitrary and

capricious. Notwithstanding M s. Cameron’s multifarious arguments, de novo

review is not required. W e next conclude that under the proper standard, the

alleged errors are not reversible, because: (1) there is no evidence that the




                                          -2-
Benefits Appeal Committee (BAC) 1 failed to apply the CSW Plan to its decision

on M s. Cameron’s claim; (2) the final decision on her claim was made during a

tim e period w hen the “any occupation” standard was in force, and the BAC

properly applied that standard; and (3) the BAC properly applied the CSW Plan

definition of “disability” to her claim. W e therefore affirm the judgment of the

district court.

                                      FACTS

       1. Commencement of D isability Benefits

       M s. Cameron last worked for CSW on October 3, 2000. She alleged total

disability beginning the following day, due to agoraphobia and panic attacks. She

applied for disability benefits under the Plan and her application was approved.

The CSW Plan provides for a benefit waiting period of five full calendar months

beginning with the first date of disability before benefits begin. Accordingly, the

Plan began paying M s. Cameron benefits effective April 1, 2001.

       In 2000, American Electric Power Services Corporation (AEP) acquired

CSW and its subsidiaries. AEP assumed responsibility for the CSW Plan



1
       The A EP Long Term Disability Benefits Appeal Committee (BAC) is not
the same entity as the “Benefits Appeals Committee” named to administer appeals
in the CSW Plan document. As explained further herein, the BAC was substituted
for the Benefits Appeals Committee by corporate resolution, as part of AEP’s
acquisition of CSW . In this decision, when referring to the entity identified in the
CSW Plan document, we refer to the “Benefits Appeals Committee,” while when
referring to the actual entity that made the decision in M s. Cameron’s case, we
refer to the (substituted) “BAC.”

                                         -3-
beginning January 1, 2001. Employees w ho had not yet filed a claim by that date

were covered under the AEP Plan; because M s. Cameron was classified as

disabled prior to January 2001, her claim remained governed by the CSW Plan.

Both plans were administered by Kemper N ational Services, Inc. (Kemper).

      2. “Ow n O ccupation” vs. “Any O ccupation”

      Like many private disability plans, the CSW Plan relies on a two-tiered

definition of total disability. During the first 24 months after the waiting period

expires, a participant is considered totally disabled if, among other requirements,

she suffers from a sickness or injury that “may reasonably be expected to prevent

[her] from performing the material duties of [her] specific job with [the]

Company.” Aplt. App., Vol. II, at 64. As a shorthand, we refer to this as the

“own occupation” standard. After the expiration of the 24 month period, an

employee must meet a higher standard. She must then show that the sickness or

injury prevents her “from engaging in any occupation . . . for w hich [she] is

reasonably qualified by training, education, background or experience.” Id. W e

refer to this as the “any occupation” standard.

      3. K em per’s Review and Termination of Benefits

      M s. C ameron’s 24-month period for payment of benefits under the “own

occupation” standard was not scheduled to expire until A pril 1, 2003. But on

October 4, 2002, Kemper sent M s. Cameron a letter in which it erroneously stated

that she had received 24 months of benefits and that the “any occupation”

                                         -4-
standard now applied. Defendants concede that this calculation was in error and

that benefits should have continued under the “own occupation” standard until

M arch 31, 2003. In the letter, Kemper further announced that it would be

conducting a review of M s. Cameron’s continued eligibility for benefits under the

“any occupation” standard.

      As part of its review, Kemper conducted an independent medical evaluation

(IM E) and performed hidden surveillance of M s. Cameron. It concluded that she

could travel, drive, and interact with others without excessive levels of anxiety.

Kemper sent copies of the surveillance tapes along with a report of the IM E and a

peer physician review report to her treating physician, Dr. Cobb. Kemper opined

that the tapes “suggest that M s. Cameron is functioning at a higher level than that

demonstrated in the [attending physician and behavioral clinician statements]

completed by [Dr. Cobb].” Id. at 253.

      Dr. Cobb disagreed. He wrote to Kemper that he stood by his opinion that

M s. Cameron “suffers from severe Panic Disorder with Agoraphobia to the extent

that it prevents her from performing the essential duties of any occupation for

which she is qualified by education, training and experience.” Id. at 266.

Nevertheless, on January 20, 2003, Kemper found that M s. Cameron did not meet

the “any occupation” standard and therefore terminated her benefits, effective

February 1, 2003.




                                         -5-
      4. First and Second Level Appeals

      M s. Cameron appealed. On M arch 26, 2003, Kemper upheld its previous

termination of benefits. Its letter to M s. Cameron denying her appeal mistakenly

identified her as a participant in the AEP Plan, and informed her that if she

wanted reconsideration of the decision, she should file a “letter of appeal to

American Electric Power Service Corporation.” Id., Vol. III, at 580.

      The Plan obtained additional peer review evaluations, each of which

concluded that M s. Cameron’s impairments would not preclude her from working.

On August 1, 2003, the BAC issued a decision upholding Kemper’s decisions to

terminate M s. Cameron’s benefits. Its letter to M s. Cameron cited the “any

occupation” standard from the CSW Plan. Id. at 600.

      5. District Court’s Decision

      M s. Cameron then filed this suit in district court to recover benefits and to

enforce her rights under ERISA . The district court determined that since the Plan

administrator and the BAC had discretion under the Plan to interpret its terms and

to determine eligibility, the termination decision should be reviewed for an abuse

of discretion, rather than de novo as contended by M s. Cameron. It further found

that although Kemper mistakenly quoted the AEP Plan in its communications w ith

M s. Cameron, it properly applied the terms of the CSW Plan to her claim, and

that she was entitled to judgment against the defendants for disability benefits




                                         -6-
from February 1 to M arch 31, 2003. The decision to terminate her benefits under

the “any occupation” standard that became applicable on April 1, 2003 was,

however, supported by substantial evidence and was reasonable. The district

court therefore granted summary judgment for the defendants on the remainder of

her ERISA claim. 2

                                    ANALYSIS

      1. Standard of Review

      Our standard of review of summary judgment is de novo. See Pitman v.

Blue Cross & Blue Shield of Okla., 217 F.3d 1291, 1295 (10th Cir. 2000). The

parties disagree, however, concerning the standard to be applied to review of the

underlying decision to terminate M s. Cameron’s benefits. The defendants

contend that the decision should be reviewed under the arbitrary and capricious

standard, while M s. Cameron spends much of her brief arguing for de novo

review.

             a. Discretionary Authority

      A denial of benefits covered by ERISA “is to be reviewed under a de novo

standard unless the benefit plan gives the administrator or fiduciary discretionary

authority to determine eligibility for benefits or to construe the terms of the plan.”




2
       M s. Cameron’s complaint also contained a wrongful termination claim.
Because this claim remained pending, the district court granted her a certification
for an immediate appeal of the ERISA claim, pursuant to Fed. R. Civ. P. 54(b).

                                         -7-
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). If the benefit

plan gives such discretion to a plan administrator, then we typically review a

decision denying benefits under an arbitrary and capricious standard. Fought v.

UNUM Life Ins. Co., 379 F.3d at 997, 1003 (10th Cir. 2004). Such review is

limited to “determining whether the ... interpretation [of the plan] was reasonable

and made in good faith.” Id.

      The CSW Plan grants discretionary authority to CSW ’s Benefits Advisory

Committee to, inter alia, “resolve all questions relating to the right of a

Participant to receive benefits under the Plan,” and to “construe and interpret the

Plan.” A plt. App., Vol. II, at 70 ¶ 6.2. The Committee has fiduciary duties with

respect to the Plan, with the exception of responsibilities allocated to the Claims

Administrator or delegated to other persons or organizations under the terms of

the Plan. Id. at 70-71. In accordance with this authority, CSW has designated

Kemper as the Plan A dministrator, and has delegated to K emper discretionary

authority to administer the Plan. Finally, the Plan specifically grants the Benefits

Appeals Committee, which is an ERISA fiduciary, the same authority and

discretion as the Committee. Id. at 72 ¶ 6.10. This authority over benefits

appeals was delegated or transferred to the BAC.

             b. Fiduciary Responsibility

      Notwithstanding this grant of discretionary authority, M s. Cameron makes

a number of arguments in favor of de novo review of the decision in her case.

                                          -8-
She first contends that neither the Committee nor the Plan Administrator has

sufficient fiduciary responsibility to be entitled to deference for its decisions.

The Committee lacks such responsibility, she argues, because it is permitted to

delegate administrative responsibility to the Administrator. The Administrator

lacks such responsibility because it is not a named fiduciary of the Plan.

      W e have specifically rejected the position that “plan fiduciaries qualify for

. . . deference only if they delegate their authority to other named fiduciaries.”

Geddes v. United Staffing Alliance Employee M edical Plan, 469 F.3d 919, 927

(10th Cir. 2006), petition for cert. filed, 75 U.S.L.W . 3610 (M ay 2, 2007) (No.

06-1458). M s. Cameron’s argument therefore lacks merit.

              c. Ray v. UNUM Life

      Second, M s. Cameron asserts that deference is inappropriate because the

Plan “only requires [that] proof of disability be submitted, and fails to specify

who is to be convinced by this proof.” Aplt. Br. at 7. She cites Ray v. UNUM

Life Insurance Co., 314 F.3d 482, 486 (10th Cir. 2002), which was remanded for

application of de novo review, because the terms of the plan merely required a

claimant to submit “proof” of disability, but did not indicate that the proof had to

be satisfactory to the plan administrator. See also Nance v. Sun Life Assurance

Co. of Can., 294 F.3d 1263, 1267-68 (10th Cir. 2002) (applying similar

reasoning).




                                          -9-
      M s. Cameron’s argument is unavailing, however, because the CSW Plan

contains language requiring proof satisfactory to the Committee. See Aplt. A pp.,

Vol. II, at 69 ¶ 5.6 (“The Participant will . . . be required to submit whatever

evidence the Committee may require . . . as evidence of his Total Disability); at

70 ¶ 6.2 (“The Committee will . . . have the full authority and discretion to . . .

resolve all questions relating to the right of a Participant to receive benefits under

the Plan”).

              d. A dministration by BAC

      M s. Cameron next argues that she is entitled to de novo review because her

claim was improperly decided by the BAC rather than the CSW Benefits Appeals

Committee named in the Plan document. See id. at 72 ¶ 6.10. She contends that

the purported substitution of the BA C as appellate decision-maker for the CSW

Benefits Appeals Committee, made by CSW ’s corporate resolution dated July 25,

2001, see id. Vol. III, at 680-81, was ineffective because CSW failed to use the

correct procedures to amend the Plan. See id. Vol. II at 75 ¶ 8.1. There is no

indication that M s. C ameron raised this argument before the district court; we

therefore decline to consider it. See, e.g., Gaither v. Aetna Life Ins. Co., 394 F.3d

792, 812 (10th Cir. 2004) (stating this court generally does not consider issues

raised for first time on appeal, particularly where fact questions are involved).




                                          -10-
             e. Use of AEP Plan

      Finally, M s. Cameron argues that de novo review is appropriate because

although the BAC recited that it reached its decision using the CSW Plan, it

actually applied the AEP Plan. Since the AEP Plan is not in the record, she

argues, it is impossible to determine whether that plan actually grants the required

discretion to the Plan A dministrator or other fiduciary. As we detail further,

infra, the BAC properly applied the CSW Plan, which plainly does grant the

required discretion. Therefore, we conclude that arbitrary and capricious review

is the appropriate standard.

      2. Application of CSW Plan to Disability Claim

      M s. Cameron contends that while the BAC cited the CSW Plan in its final

denial letter, it actually applied the AEP Plan to her claim. As proof, she cites

language in the final denial letter that she contends states that the 24-month

period for application of the “any occupation” standard begins to run at the time

of the date of disability. Under the CSW Plan, she notes, the 24-month period

begins “immediately following the expiration of [the employee’s five-month]

Benefit W aiting Period.” Id. Vol. II, at 64, ¶ 2.15.

      The actual wording of the letter, however, does not bear out her assertion

that the BAC applied the wrong plan. It reads, in pertinent part:

      Under the Central and South W est Corporation Employees’
      Disability Income Plan, once the claimant has been disabled for a
      period exceeding 24 months, the disability must . . . reasonably be

                                         -11-
       expected to prevent her from engaging in any occupation for which
       she is reasonably qualified by training, education, background or
       experience. According to our records, M s. Cameron’s disability began
       October 3, 2000. Therefore, her ability to receive long-term disability
       benefits was evaluated using this definition of disability.

Id. Vol. III, at 600.

       The key phrase is “once the claimant has been disabled for a period

exceeding 24 months.” M s. Cameron reads this phrase as being inconsistent with

the CSW Plan definition of “total disability,” under which the 24-month period

begins only after the five-month waiting period following the onset of disability.

W hile it is true that in its earlier letters to M s. Cameron, Kemper miscalculated

the onset of the 24-month period by excluding the waiting period, there is no

indication in this letter that the BAC perpetuated this error by applying the wrong

plan definition.

       First of all, the letter explicitly refers to the CSW Plan. One cannot

reasonably infer from the immediately follow ing use of the ambiguous phrase

“has been disabled for a period exceeding 24 months,” that the BAC did not in

fact rely on the CSW Plan as it explicitly said it did. M oreover, the language it

used is easily harmonized with the reference to the CSW Plan, if by “disabled”

one reads “has begun receiving disability benefits.” W e conclude that is the only

reasonable reading of the letter, for two reasons.

       First, the letter was written on August 1, 2003. This means that by the time

it was written, a full 24 months had expired since the first date on which

                                         -12-
M s. Cameron received benefits. In other words, both the five-month waiting

period and the 24-month ow n occupation period had passed by the time the BAC

wrote the letter. There is therefore no reason to believe that the BAC was

laboring under a mistaken impression that the 24-month period included the

five-month waiting period. Second, and more to the point, the letter refers to

M s. Cameron’s “Date of Disability” as October 3, 2000, and her “Date of

Long-Term Disability” as April 2, 2001, showing that the BAC was aware of the

distinction between the two dates, and hence, the waiting period issue. Id. In

short, even giving M s. Cameron the benefit of every reasonable inference, the

letter does not indicate that the BAC did not rely on the CSW Plan for its

definition of disability.

      M s. Cameron further argues, without citation to authority, that even if the

BAC properly applied the CSW Plan, “it is improper under any standard of review

to determine that benefits should be terminated using one plan and then [to] deny

her appeal using the terms of another plan.” Aplt. Br. at 11. To accept

M s. Cameron’s argument would be to conclude that reversal is required due to

Kemper’s erroneous citation of the A EP Plan in its earlier letters to her,

regardless of whether this error was corrected on appeal by the BAC. But the

CSW Plan provides that “the Benefits Appeals Committee will make an

independent determination of the claimant’s eligibility under the Plan” and that

its determination is final and conclusive. Aplt. App., Vol. II, at 72, ¶ 6.10

                                         -13-
(emphasis added). It is the BAC’s independent decision that we review, as the

Plan’s final decision. As w e have discussed, the evidence shows that this

decision was reached under the CSW Plan.

      3. Timing of Disability Determination

      M s. Cameron next contends that the Plan’s decision should be reversed

because when Kemper initially denied her claim under the “any occupation”

standard, she was in fact still within the 24-month “own occupation” period. She

argues that Kemper’s decision was premature because the issue of her eligibility

for continued benefits under the “any occupation” standard had not yet ripened.

She also contends that no determination was made of her ability to perform any

occupation as of the date the 24-month period ended.

      As w ith the previous issue, the BAC’s independent review puts to rest this

claim of error. The BAC made its final and independent decision on August 1,

2003, long after the 24-month period had ended. In its decision, it stated,

“insufficient evidence exists to demonstrate that M s. Cameron is unable to

perform work of any kind.” Id., Vol. III, at 600 (emphasis added). The BAC’s

use of the present tense, coupled with the independent nature of its review,

demonstrates that a decision was made at the proper time concerning

M s. Cameron’s ability to work under the “any occupation” standard.




                                        -14-
      4. Disability D efinition Under AEP and CSW Plans

      Finally, M s. Cameron argues that the benefits denial should be reversed

because the definition of “disability” in the AEP Plan differs from that contained

in the CSW Plan. As we have explained, however, there is no evidence that the

BAC failed to apply the CSW Plan definitions to M s. Cameron’s alleged

disability in its independent determination of her claim.

                                  C ON CLU SIO N

      The arbitrary and capricious standard of review applies to the Plan’s

determination to terminate M s. Cameron’s benefits. She has failed to show that

the Plan’s determination that she did not meet the “any occupation” standard for

total disability was arbitrary and capricious. The judgment of the district court is

therefore AFFIR ME D.


                                                    Entered for the Court



                                                    Robert H. Henry
                                                    Circuit Judge




                                        -15-
