     Case: 17-30997   Document: 00514901973      Page: 1   Date Filed: 04/04/2019




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


                                 No. 17-30997
                                                                      FILED
                                                                   April 4, 2019
                                                                 Lyle W. Cayce
AMANDA C. FOSTER,                                                     Clerk

             Plaintiff - Appellant

v.

PRINCIPAL LIFE INSURANCE COMPANY,

             Defendant - Appellee




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


Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
      Amanda Foster worked as an attorney in New Orleans before—by her
account—intractable migraines made her stop working. She applied for
disability benefits through her law firm’s insurer, Principal Life Insurance
Company (“Principal”). After multiple reviews by various doctors, Principal
denied her claim, concluding she was not disabled within the meaning of the
policy. Foster sued, arguing that Principal abused its discretion by denying her
benefits. The district court ruled for Principal. We affirm.
                                       I.
      Foster was a healthcare attorney at the New Orleans law firm Sullivan,
Stolier & Knight (“Sullivan”). She began working at the firm in November 2005
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                                       No. 17-30997
and described her duties as “review and draft leases and agreements; research
and advise clients regarding government laws and regulations; represent
clients in administrative appeals; [and] draft compliance plans.” On March 8,
2013, Foster decreased her work hours to part-time capacity, allegedly due to
intractable headaches, and she subsequently took complete disability leave on
July 1, 2013.
       Sullivan has a group benefits plan (“Group Policy” or “policy”) issued by
Principal, which, as relevant here, provides employees with long term
disability benefits (“LTD”). 1 It is undisputed that Foster’s claims under the
policy are governed by the Employee Retirement Income Security Act of 1974
(“ERISA”), 29 U.S.C. § 1001 et seq. See, e.g., Pilot Life Ins. Co. v. Dedeaux, 481
U.S. 41 (1987). It is also undisputed that the policy confers on Principal the
discretion to construe the policy provisions and determine eligibility, meaning
that Principal is both the insurer and the plan administrator.
       With respect to LTD, the policy states that a member is “disabled” if she
“cannot perform one or more of the substantial and material duties of his or
her Own Occupation.” “Substantial and material duties” are “essential tasks
generally required by employers from those engaged in a particular occupation
that cannot be modified or omitted.” The policy defines “Own Occupation” for
attorneys as “[t]he specialty in the practice of law the Member is routinely
performing for the Policyholder when his or her Disability begins.”




       1  The policy provides another benefit via its life insurance coverage—known as
“Coverage During Disability”—which entitles employees to a waiver of premiums during a
period of total disability (known as a “LWOP”). LWOP has different eligibility requirements
from LTD: LWOP requires inability to perform the duties of any occupation, whereas LTD
requires only an inability to perform any of the material and substantial job duties of one’s
own occupation. Foster unsuccessfully claimed entitlement to this LWOP benefit in the
district court, but she has not appealed the district court’s determination that Principal did
not abuse its discretion in denying LWOP.
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      On July 8, 2013, Foster filed a claim for LTD under the policy, alleging
she was “unable to practice law due to the pain of headaches as of March 8,
2013.” An accompanying neurologist’s statement (from Dr. Mohnot) described
Foster’s subjective symptoms as “intractable migraines,” and reported March
8, 2013 as the date she was “advised . . . to stop working.” Principal received
Foster’s medical records throughout August 2013, including records of her
psychotherapy with Dr. Phyllis Shnaider. Principal then requested a review of
the medical records by an internal medical consultant. Principal provisionally
approved Foster’s claim (after completion of a mandatory 180-day elimination
period) from September 4, 2013 to December 9, 2013, based on the information
it had at the time, while informing Foster it would need additional information.
      On November 4, 2013, Principal requested surveillance on Foster, which
showed her performing routine tasks like shopping and picking up children. It
also requested updated medical records. Initially, two doctors (Dr. Ethel
Condon and Dr. Pranathi Kondapaneni) provided Principal with reports
reviewing those records. Dr. Condon’s report stated that Foster’s “chronic
headaches and intractable migraines” would not allow her “consistent full time
employment” for “sedentary work.” Similarly, Dr. Kondapaneni’s report
confirmed that Foster was experiencing daily migraines that resulted in her
“functional impairment,” limiting her to part-time work to avoid continuous
“work-place stress and light exposure.”
      Principal also hired two additional physicians, Dr. Sydney Kroll Register
(a psychologist) and Dr. David Hoenig (a neurologist), to review Foster’s file.
For her part, Dr. Register concluded from a review of the medical records that
“[t]here is no indication of functionally impairing psychological symptoms,”
and she noted “generally mild psychological symptoms consistently across
time.” She also concluded that “[n]o limitations are supported” that would
result in Foster’s “total inability to perform any type of occupation.” For his
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part, Dr. Hoenig concluded that Foster’s “objective neurological exam is
consistently normal,” as well as her MRI and EEG. He also concluded that,
whereas her headaches were “subjectively affecting her functionality,” her
records showed “no objective/clinical evidence which demonstrates that Mrs.
Foster is functionally impaired,” given that she “exhibits no deficits on
examination and her neurological workup is normal, [and] . . . she is seen on
video surveillance to be functional.” Additionally, Dr. Hoenig specifically
disagreed with the previous recommendation of Foster’s neurologist that she
not work: “Based on the documentation provided, . . . the recommendation that
[Foster] not work is not reasonable and is not medically supported,” given that
“[t]here is no clinical evidence that demonstrates that Ms. Foster is
functionally impaired.” Dr. Hoenig therefore concluded that “Ms. Foster has
capabilities to perform work activities on a full-time basis, in a sedentary
capacity.”
      Principal terminated Foster’s LTD benefits on December 18, 2014,
effective December 9, 2014. In relevant part, Principal’s denial letter stated
that a report from her reviewing psychologist “indicated that no limitations or
functional impairment were supported from a psychological perspective.” The
letter also stated that her “objective neurological exam was consistently
normal,” as were her MRI and EEG, and that, despite her complaints of
headaches, “there was no objective/clinical evidence which demonstrated [she]
w[as] functionally impaired.” In other words, Foster’s “subjective complaints
did not correlate with objective findings” and her “reported functional and daily
activity level was not consistent with the severity of the complaints [she]
reported.” Principal additionally relied on the fact that Foster was “seen on
video surveillance to be functional and apparently without activity limitation.”
Finally, Principal noted that Foster’s “monthly online blog posts” reflected an
“undiminished ability to write, focus, and concentrate as would also be
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required in [her] occupation.” In sum, Principal concluded that, “[o]n the basis
of these [psychological and neurological] reviews, we have determined that
there is no objective medical or psychological evidence supporting an ongoing
claim of Disability as it is defined in the policy.”
       On April 28, 2015, Foster submitted her mandatory appeal to Principal. 2
Foster attached letters from her treating physician Dr. Mohnot, an
independent medical examination (IME) by Dr. Shelly Savant, an affidavit by
founding partner Jack Stolier attesting to Foster’s struggles with her
headaches and her inability to work as an attorney, and additional medical
records detailing Foster’s continued struggle with migraines.
       On July 24, 2015, Principal denied Foster’s mandatory appeal. As part
of this review, Principal relied on the opinions of two more doctors, Dr. Daniel
Harrop (a psychiatrist) and Dr. Norman Miller (a psychiatrist and neurologist).
While not commenting on neurological issues, which were beyond his expertise,
Dr. Harrop concluded that Foster was “not disabled for psychiatric reasons”;
that “the psychiatric restrictions suggested by the attending clinicians . . . are
not supported by clinical findings or diagnostic evidence or the clinical records
on file”; that her “[m]emory, cognition, and concentration are not demonstrated
by mental status examinations to be impaired”; and finally that “[t]he medical
documentation does not support that there are restrictions and limitations
which would render [Foster] unable to perform the occupation she regularly
performs[.]” Harrop listed the essential duties of an attorney in his summary
of the record in his report.
       The second reviewer, Dr. Miller, diagnosed Foster with “opioid
dependence,” “opioid induced mood disorder,” and “opioid induced hypalgesia



       2 In accordance with ERISA regulations, the plan required Foster to file (and Principal
to consider) one mandatory appeal.
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                                 No. 17-30997
and somatoform disorder.” Dr. Miller was the only reviewing physician to
suggest these diagnoses. In his report, Dr. Miller explained that “[h]ydrocodone
causes pain, particularly headache pain and her pain will be significantly
reduced and the frequency of her headaches, the severity of her headaches, the
nature of her headaches all will improve once she no long is prescribed and
uses hydrocodone.” As to Foster’s functional impairment, Dr. Miller concluded
that “Ms. Foster is otherwise capable of full-time sedentary work” and “she
should discontinue under medical supervision hydrocodone and Ativan as
these medications increase pain and anxiety and depression.” While not listing
or discussing any specific duties of an attorney, Miller mentioned those duties
in his summary of the record.
      Following Principal’s denial of Foster’s mandatory appeal, Foster filed a
second, voluntary appeal in which she submitted, among other materials,
responsive opinions by independent examiner Dr. Shelly Savant, and Foster’s
treating physician Dr. Mohnot, who has treated Foster for migraines since
2008. Dr. Savant vigorously disputed Dr. Miller’s diagnoses as incorrect.
      After receiving Foster’s second appeal, Principal requested additional
headache logs from Foster and scheduled an independent neuropsychological
examination (INE) with Dr. Michael Chafetz, a psychologist. On December 2,
2015, Dr. Chafetz administered a battery of cognitive function tests, reviewed
her records, and conducted a clinical interview. His extensive report observes,
among other findings, that various physicians have disagreed “as to the origin
and status of [Foster’s] headaches,” but that physicians have generally ignored
her psychological history. Furthermore, Dr. Chafetz observed that Foster “is
claiming that her pain condition, which for the most part is moderate, creates
an extremely high level of functional restrictions, which is unusual.” As a
result, he concluded that Foster “would have no limitations on more complex
legal tasks if these did not involve much oversight and responsibility.” He also
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forecast that Foster would “demonstrate the same psychological pattern in the
future, developing headaches when faced with responsibilities and tasks that
take her away from the things that she would truly enjoy, such as her writing
career.” However, Dr. Chafetz concluded that “[t]here is no real evidence of
psychologically or neuropsychologically based impairment in [Foster’s] ability
to carry out tasks.”
     On December 21, 2015, Principal upheld its previous determination that
Foster was not disabled within the meaning of the LTD provisions of the policy,
based in part on Dr. Chafetz’s independent evaluation. The denial letter
concluded that Foster was “capable of full-time sedentary work and . . . is able
to function at the level needed as an attorney on a regular basis.”
      On February 12, 2016, Foster filed the instant lawsuit in federal district
court seeking both LTD and LWOP benefits under the policy pursuant to 29
U.S.C. § 1132(a)(1)(B). The parties eventually filed cross-motions for judgment
on the administrative record. On November 21, 2017, the district court
rendered judgment for Principal and against Foster, concluding that Principal
did not abuse its discretion when denying Foster’s claim for benefits. Foster
filed a notice of appeal on December 21, 2017. She moved for reconsideration
in the district court under Federal Rule of Civil Procedure 59(e) on December
19, 2017, attempting to introduce additional medical evidence. The district
court denied Foster’s motion for reconsideration in a memorandum opinion on
March 19, 2018.
                                      II.
    “Where a benefits plan ‘gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to construe the terms of the
plan,’ . . . the reviewing court applies an abuse of discretion standard to the
plan administrator’s decision to deny benefits.” Anderson v. Cytec Indus., Inc.,
619 F.3d 505, 511–12 (5th Cir. 2010) (quoting Firestone Tire & Rubber Co. v.
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Bruch, 489 U.S. 101, 115 (1989)). Here, the parties do not dispute that the
policy vested such discretion with Principal. This court reviews de novo the
district court’s conclusion that an ERISA plan administrator did not abuse its
discretion in denying benefits. Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th
Cir. 2008); Corry v. Liberty Life Assurance Co. of Bos., 499 F.3d 389, 397 (5th
Cir. 2007). In doing so, we review the plan administrator’s decision from the
same perspective as the district court. Meditrust Fin. Servs. Corp. v. Sterling
Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999).
    “Under the abuse of discretion standard, ‘[i]f the plan fiduciary’s decision
is supported by substantial evidence and is not arbitrary and capricious, it
must prevail.’” Corry, 499 F.3d at 397–98 (quoting Ellis v. Liberty Life
Assurance Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004)). Even if an ERISA
plaintiff “support[s] his claim with substantial evidence, or even with a
preponderance,” he will not prevail for that reason. Ellis, 394 F.3d at 273.
Rather, it is the plan administrator’s decision that must be supported by
substantial evidence, and, if it is, the administrator’s decision “must prevail.”
Id. “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.” Anderson, 619 F.3d at 512 (quotation marks omitted).
“‘A decision is arbitrary only if made without a rational connection between the
known facts and the decision or between the found facts and the evidence.’”
Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246–47 (5th Cir. 2009)
(quoting Meditrust Fin. Servs., 168 F.3d at 214). “Our ‘review of the
administrator’s decision need not be particularly complex or technical; it need
only assure that the administrator’s decision fall[s] somewhere on a continuum
of reasonableness—even if on the low end.’” Id. (quoting Corry, 499 F.3d at
398).


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      Finally, the existence of a structural conflict of interest—when the plan
administrator “both evaluates claims for benefits and pays benefits claims,”
Truitt v. Unum Life Ins. Co. of Am., 729 F.3d 497, 508 (5th Cir. 2013) (quotation
marks omitted)—“is ‘but one factor among many that a reviewing judge must
take into account’” in assessing whether the administrator abused its
discretion. Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 138 (5th Cir.
2016) (quoting Holland, 576 F.3d at 248); accord Metro. Life Ins. Co. v. Glenn,
554 U.S. 105, 116 (2008). The weight a conflict has relative to other factors
“changes . . . depending upon the circumstances of a particular case.”
Schexnayder v. Hartford Life & Accident Ins. Co., 600 F.3d 465, 470 (5th Cir.
2010) (quotation marks omitted).
                                      III.
    Foster’s first argument on appeal is that Principal abused its discretion
when terminating her LTD benefits because it failed to analyze her disabling
condition in light of her actual job duties as an attorney. The policy Principal
issued to Sullivan states that a member will be considered “[d]isabled” if,
“because of sickness, injury, or pregnancy,” “[t]he Member cannot perform one
or more of the Substantial and Material Duties of his or her Own Occupation .
. . .” (emphasis added). Foster contends that the doctors on whose reports
Principal relied were never asked to evaluate her disability in light of her
specific duties as a healthcare attorney, and that, instead, they evaluated her
disability only in light of the less specific standard of whether she could
perform “full-time sedentary work.” Consequently, these doctors did not
provide any meaningful analysis of whether Foster’s intractable migraines
would prevent her from performing the specific duties of a healthcare
attorney—e.g., “meeting deadlines, handling stress, unpredictability of
absences, . . . prolonged computer use, prolonged light exposure, [and the]
intellectual challenges of handling complex situations.” Relying on those
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doctors’ opinions, argues Foster, constituted an abuse of discretion because
Principal could not have rationally determined from them that Foster was, in
fact, unable to “perform one or more of the material and substantial duties
of . . . her Own Occupation,” as the policy demands.
    Our court has not squarely addressed the issue presented here—namely,
whether an ERISA plan administrator abuses its discretion by denying
benefits under an “Own Occupation” clause based on reports couched only in
terms of a claimant’s ability to work at “a full-time sedentary position.” Several
sister circuit decisions suggest that non-specific statements of this nature are
inadequate to support a benefits denial under an “Own Occupation” clause.
See, e.g., McDonough v. Aetna Life Ins. Co., 783 F.3d 374, 379–82 (1st Cir. 2015)
(deeming inadequate “passing references” in medical reviews to “the
appellant’s ‘own occupation’ or ‘own sedentary level occupation’” when
“unaccompanied by any attempt to articulate the material duties of the
appellant’s own occupation”); Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 619–
20 (6th Cir. 2006) (finding inadequate a report’s use of “sedentary work,”
because “the proper inquiry is whether [claimant] could perform her own
occupation”); Miller v. Am. Airlines, Inc., 632 F.3d 837, 854–55 (3rd Cir. 2011);
Kalish v. Liberty Mut./Liberty Life Assur. Co. of Bos., 419 F.3d 501, 507 (6th
Cir. 2005) (“[T]he fact that [claimant] might be capable of sedentary work
cannot be a rational basis for finding that he was not disabled, given that his
former occupation required him to walk, stand, and reach for several hours a
day.”); Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 253 (2nd
Cir. 1999). We have expressed support for this proposition, albeit in an
unpublished opinion. See, e.g., Burtch v. Hartford Life & Acc. Ins. Co., 314 F.
App’x 750, 755–56 (5th Cir. 2009) (rejecting argument that insurer erred by
using “sedentary job” criteria to deny benefits, because insurer “considered the


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                                       No. 17-30997
[claimant’s] actual [job] duties” under the policy’s “own occupation” standard). 3
We assume without deciding that our sister circuits are correct. Even under
the standard adopted by those circuits, we conclude that Principal’s
termination of Foster’s benefits should be upheld.
       We evaluate Foster’s argument in view of the light burden that Principal
bears: Principal must support its decision only with “substantial evidence” and,
if the decision “is not arbitrary and capricious, it must prevail.” Corry, 499 F.3d
at 397–98 (quoting Ellis, 394 F.3d at 273) (emphasis added). Here, there is
substantial evidence showing that at least one of the physicians—Dr.
Chafetz—considered Foster’s disability in light of the specific duties required
by her occupation as an attorney. Principal asked Foster for a description of
her job duties and then provided to all reviewing physicians the documents she
gave them. The reports Principal relied upon described not only “physical,” but
also on the “non-exertional or cognitive” demands on Foster—such as her
“ability to write, focus, and concentrate,” her “memory, cognition, and
concentration,” and her ability to complete tasks such as “driving, shopping,
and picking up her kids.” Most importantly, Dr. Chafetz was asked to (and did)
assess a range of non-exertional, cognitive skills. He concluded that “according
to [his] psychological findings, [Foster] would appear to have no limitations on
more complex legal tasks if these did not involve much oversight and
responsibility.” To be sure, Foster adduced evidence of her own suggesting that



       3 We also addressed an “own occupation” clause in Robinson v. Aetna Life Ins. Co., 443
F.3d 389 (5th Cir. 2006). The parties agreed that the clause required assessment of a
claimant’s disability in terms of the “‘essential tasks’ generally required of employees in the
occupation.” Id. at 395. We reversed the insurer’s benefits denial purely on evidentiary
grounds—namely, because the insurer’s “finding that driving is not a material duty” of a
sales representative was “not supported by concrete evidence in the administrative record.”
Id. at 396. Consequently, we had no occasion in Robinson to address whether an insurer’s
generic assessment that a claimant could perform “sedentary” work is sufficient to support a
benefits denial under an “own occupation” clause.
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her headaches rendered her unable to perform as an attorney. But that does
not entitle her to prevail under the substantial evidence standard. See, e.g.,
Ellis, 394 F.3d at 273 (even if an ERISA plaintiff “support[s] his claim with
substantial evidence, or even with a preponderance,” he will not prevail for
that reason). Accordingly, we find that Principal marshaled enough evidence
to satisfy its burden, and Principal did not abuse its discretion on this ground.
                                       IV.
     Foster’s second argument on appeal is that Principal wrongly denied
benefits based on a lack of “objective or clinical evidence” of her migraines,
when in fact migraines (like other conditions) are not susceptible to objective
verification but must instead be verified by subjective evidence—which she
claims the record shows without dispute. According to Foster, by requiring non-
existent evidence from Foster, Principal abused its discretion. Yet, as Principal
correctly points out, Foster’s argument fails to make a critical distinction:
Although the existence of a disability like migraines may not be denied based
on impossible-to-obtain objective evidence, that is not true of one’s inability to
work as a result of migraines.
     An administrator may rely on an absence of objective evidence of the latter
(inability to work) as a basis for finding lack of disability and denying benefits.
Indeed, one of the circuit opinions Foster cites—an unpublished Eleventh
Circuit decision—makes precisely this distinction. See Creel v. Wachovia Corp.,
2009 WL 179584, at *8–9 (11th Cir. Jan. 27, 2009) (unpublished) (explaining
that, “[e]ven for subjective conditions like migraines, it is reasonable to expect
objective medical evidence of an inability to work” (citing Boardman v.
Prudential Ins. Co. of Am., 337 F.3d 9, 16 n.5 (1st Cir. 2003))). Our court has
relied on this principle in a case involving a denial of a disability claim based
on PTSD. In Anderson v. Cytec Industries, we held that a claims administrator
“did not abuse its discretion by relying on the independent experts’ opinion
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that [the claimant] had not offered objective clinical proof showing the
functional effect of his PTSD”—and this was true even when those experts
“took into consideration [the claimant’s] subjective complaints and the
conclusions of his doctors.” 619 F.3d 505, 513 (5th Cir. 2010). And we did not
stop there:
    A plan administrator does not abuse its discretion by making a
    reasonable request for some objective verification of the functional
    limitations imposed by a medical or psychological condition,
    especially when the effects of that condition are not readily
    ascertainable from treatment and therapy notes—as in this case and
    analogous cases involving, for example, chronic fatigue
    syndrome. . . . Without some objective measurement of [the
    claimant’s] functional limitations, [the administrator] had no way to
    determine whether his concentration was impaired to the point that
    he could not perform his job[.]

Id. at 514 (citing Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir.
2007); Boardman, 337 F.3d at 16–17 n.5).
    We need look no further than our decision in Anderson, and the
authorities it relies on, to decide this issue. As the district court correctly
determined, Principal relied on expert reports assessing—not whether Foster
subjectively experienced migraines—but instead whether and to what extent
those migraines “functionally” impaired Foster in her work.
    To the extent Foster criticizes Principal for relying on its experts rather
than her treating physicians, our cases also reject this argument. Principal was
required to base its decision on “substantial evidence,” and it is immaterial
whether Foster herself adduced substantial evidence (or even a preponderance
of evidence) to support her view of the severity of her impairment. See Corry,
499 F.3d at 397–98; Ellis, 394 F.3d at 273. Furthermore, we have recognized
that a claims administrator is not required to accept the opinions of a
claimant’s treating physicians regarding the severity of the claimant’s
condition. See, e.g., Anderson, 619 F.3d at 513 (explaining “the experts here
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were not required to accept the opinion of [the claimant’s] treating physician
that his symptoms rendered him incapable of performing his job”); Corry, 499
F.3d at 401 (“[T]he administrator, under the established standard of review
that restricts the courts, was not obliged to accept the opinion of [the
claimant’s] physicians. In this ‘battle of the experts’ the administrator is vested
with discretion to choose one side over the other.”).
     At bottom, we see no abuse of discretion in Principal’s reliance on its own
treating physicians’ reports detailing an absence of Foster’s functional
impairments. 4 Furthermore, although Principal has a “structural” conflict of
interest in that it both evaluates and pays claims, see, e.g., Truitt, 729 F.3d at
508, we accord this factor little weight in view of the extensive investigation
Principal undertook. We therefore conclude that Principal’s benefits denial
was supported by substantial evidence.
     AFFIRMED




     4  In light of this conclusion, we need not address Principal’s alternative argument
that—should we conclude Foster’s condition is disabling—Foster’s claim is “capped by the
Group Policy’s mental health condition limitation provision,” limiting benefits to a 24-month
period.
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