                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 4 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TRACY L. JONES,

                Plaintiff-Appellant,

    v.                                                    No. 99-3060
                                                    (D.C. No. 97-2624-JWL)
    CONTINENTAL CASUALTY                                   (D. Kan.)
    COMPANY,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and BRISCOE , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff Tracy L. Jones appeals from the denial of her claim under the

Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132(a)(1)(B),

to enforce her right to long-term disability benefits under defendant Continental

Casualty Company’s disability insurance plan. We have jurisdiction under

28 U.S.C. § 1291.

      Plaintiff was formerly employed as a Technical Drafter 4 by Black and

Veatch, which provided long-term disability insurance to its employees through

defendant. Plaintiff claimed her entitlement to disability benefits based on

a diagnosis of fibromyalgia. Defendant denied her request because she provided

no objective medical evidence to support her claim that she was physically

“unable to perform the substantial and material duties of [her] regular

occupation,” as required for every form of disability defined in the insurance

plan. Appellant’s App. at 19.

      After a bench trial, the district court entered judgment in favor of defendant

on a slightly different basis. Even though plaintiff claimed that she could not

perform eight hours of work in an eight-hour day, one of her doctors reported her

admission that she could easily perform eight hours of work over a twenty-four

hour period. Because plaintiff did not prove that an eight-hour day was a material

duty of her occupation (or even of her position with Black and Veatch), the court

concluded that plaintiff had not proved that she was disabled within the meaning


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of defendant’s insurance plan. The district court also found plaintiff’s medical

evidence conclusory and insufficient to support a claim for disability.

       Plaintiff argues on appeal that the district court erred in finding that she

had not met her burden of proof. We review the district court’s factual finding

that plaintiff is not disabled for clear error.         See Wilcott v. Matlack, Inc. , 64 F.3d

1458, 1460-61 (10th Cir. 1995).

       We have carefully reviewed the parties’ materials and the record on appeal.

We find no error, and affirm for substantially the same reasons as those set forth

in the district court’s thorough and well-supported memorandum and order filed

on January 15, 1999.

       AFFIRMED.



                                                               Entered for the Court



                                                               Mary Beck Briscoe
                                                               Circuit Judge




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