               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                       ____________________

                           No. 98-40134
                         Summary Calendar
                       ____________________

          BARBARA WHITAKER,

                               Plaintiff-Appellant,

          v.

          PITNEY BOWES, INC, Employer;
          PITNEY BOWES PLAN ADMINISTRATOR,

                               Defendants-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                           (C-97-CV-110)
_________________________________________________________________

                         December 1, 1998

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     In this case under the Employee Retirement Income Security

Act, plaintiff-appellant Barbara Whitaker appeals the district

court’s determination that she is ineligible to receive benefits

under her employer’s long-term disability plan.   Plaintiff-

appellant argues the district court improperly granted

defendants-appellees’ summary judgment motion because the court

limited its consideration to facts and arguments in the

     *
      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this opinion should not be published and is not precedent except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.
administrative record.   Plaintiff-appellant further argues the

district court improperly denied her motion for summary judgment

and that there was insufficient evidence in the administrative

record to support a finding of ineligibility.   We affirm.



                I.   FACTUAL & PROCEDURAL BACKGROUND

     Plaintiff-appellant Barbara Whitaker (Whitaker) was employed

by defendant-appellee Pitney Bowes, Inc. (Pitney Bowes) as a

Copier Division Support Coordinator on July 23, 1991.   Whitaker’s

job duties involved phone usage, computer work, writing reports,

taking inventory of supplies, shipping, mailing, copying, and

filing.   In May 1993, Whitaker went on medical leave due to back

pain resulting from her pregnancy and an automobile accident.     In

October 1993, Whitaker’s short-term disability was exhausted, and

she was placed on an unpaid leave of absence.   Whitaker never

returned to work and has not worked in any profession since May

1993.

     Pitney Bowes offers its employees long-term disability (LTD)

benefits pursuant to the Pitney Bowes Inc. Long Term Disability

Plan (the Plan), which is governed by the Employment Retirement

Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461.     A

plan participant is entitled to LTD benefits if the participant

is “totally disabled.”   Under the Plan, a participant is “totally

disabled” if (1) the participant is unable to perform his or her

own occupation for a maximum period of twelve months, and (2)

after the initial twelve month period, the participant is unable


                                  2
to engage in any gainful occupation or profession for which he or

she is, or could become, reasonably suited by education,

experience, or training.

     In June 1994, Whitaker applied for LTD benefits under the

Plan, claiming that she was totally disabled due to back pain.

In July 1994, defendant-appellee Pitney Bowes Plan Administrator

(the Plan Administrator) denied Whitaker’s request for LTD

benefits.   Whitaker appealed the denial, provided the Plan

medical records and reports from her physicians, and submitted to

a medical evaluation and a functional capacity evaluation

arranged by the Plan.   In March 1995, the Plan Administrator

determined on the basis of these reports that Whitaker was unable

to perform the duties of her own occupation and approved her

claim for LTD benefits for the first twelve months of her

disability, that is for the period from November 1, 1993 through

November 1, 1994.   On the basis of the medical reports and a

surveillance video taken on March 21, 1994, however, the Plan

Administrator and the Pitney Bowes Employee Benefits Committee

(the Committee) determined in April 1995 that Whitaker did not

qualify for continuing LTD benefits.

     Following the denial of her appeal for LTD benefits under

the Plan, Whitaker continued to seek medical treatment and

underwent surgery in July 1995.   Utilizing medical evaluations

performed after the Plan’s April 1995 denial, Whitaker pursued a

claim for social security benefits, which was awarded in

September 1996.   In January 1997, Whitaker filed this suit in


                                  3
state court against Pitney Bowes and the Plan Administrator

(collectively, the defendants) alleging that the denial of her

request for LTD benefits was arbitrary, illegal, capricious,

unreasonable, and not made in good faith.   Defendants removed the

action to the United States District Court for the Southern

District of Texas on the basis of 28 U.S.C. § 1441(a).    In

October 1997, each of Whitaker and the defendants filed a motion

for summary judgment.   The district court granted defendants’ and

denied Whitaker’s motion for summary judgment.

     The district court concluded that Whitaker challenged only

the Committee’s factual determination of ineligibility, and that

judicial review of the denial of LTD benefits is limited to

determining whether substantial evidence exists in the record to

support the decision that Whitaker did not qualify for LTD

benefits.   Furthermore, the court found that its review was

limited in that it may only consider evidence available to the

Plan at the time the final decision was made.    The court

evaluated the evidence available to the Plan in April 1995 and

found the evidence sufficient to find Whitaker did not suffer

from a “total disability.”   Whitaker timely appealed.



                          II. DISCUSSION

     Whitaker argues that the district court erred in finding

that she is not entitled to benefits.   Whitaker asserts the

district court erred in failing to consider additional evidence

that was not contained in the administrative record and in


                                 4
failing to consider the Social Security Administrative Law

Judge’s finding that she was totally disabled under Social

Security standards.    Whitaker also argues that the district court

erred in finding sufficient evidence to support the Plan’s

determination because the surveillance video should not have been

considered by the Committee and vocational expert testimony was

required.   We address each of these arguments in turn.



                        A. Standard of Review

     The grant of summary judgment by a district court is

reviewed de novo.     See Tolson v. Avondale Indus., Inc., 141 F.3d

604, 608 (5th Cir. 1998); Bellaire Gen. Hosp. v. Blue Cross Blue

Shield, 97 F.3d 822, 829 (5th Cir. 1996) (“We review de novo the

district court’s holding on the question of whether a plan

administrator abused its discretion or properly denied a claim

for benefits.”).    When an ERISA plan vests its administrator with

discretionary authority to determine eligibility for benefits or

to construe the terms of the plan, our standard of review is

abuse of discretion.    See Tolson, 141 F.3d at 608.   There is no

question that the language of the Plan vests the Committee with

such authority, and no party contests the district court’s

finding that the Committee has sufficient authority to make abuse

of discretion the appropriate standard for reviewing the

Committee’s denial of Whitaker’s claim for LTD benefits.

     In applying the abuse of discretion standard, we determine

whether the plan administrator acted arbitrarily or capriciously.


                                  5
See Bellaire Gen. Hosp., 97 F.3d at 829; Wildbur v. ARCO Chem.

Co., 974 F.2d 631, 635 n.7 (5th Cir.), modified on other grounds,

979 F.2d 1013 (5th Cir. 1992) (noting that there is “only a

semantic, and not a substantive, difference” between “abuse of

discretion” and “arbitrary and capricious” standards).   As the

district court explained, an arbitrary decision is made without a

rational connection between the known facts and the decision, or

is a decision that does not reflect a reasonable and impartial

judgment.   See Bellaire Gen. Hosp., 97 F.3d at 828; Pierre v.

Connecticut Gen. Life Ins. Co., 932 F.2d 1552, 1562 (5th Cir.

1991).



             B. Evidence Not in Administrative Record

     Whitaker alleges that the district court erred in failing to

consider evidence included in her motion for summary judgment

that was not considered by the Committee denying her benefits.

Relying on this court’s decision in Wildbur, Whitaker alleges

that “the court is not confined or limited to the administrative

record,” and therefore should have considered both medical

records produced after April 1995 and the determination of the

Social Security Administrative Law Judge in September 1996.

     Whitaker’s assertion that the district court should have

considered evidence not contained in the administrative record,

however, is inconsistent with her underlying allegations.

Although we held in Wildbur that a district court is not confined

to the administrative record in determining whether a plan


                                 6
administrator abused his or her discretion in making a benefit

determination, this holding “dealt with an administrator’s

interpretation of plan terms reviewed under an abuse of

discretion standard, not with his factual determinations.”

Southern Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 102

(5th Cir. 1993); see Wildbur, 974 F.2d at 639.   The district

court properly concluded, and Whitaker does not dispute, that

Whitaker challenges only the Committee’s factual finding that she

is not “totally disabled” and not the Committee’s interpretation

of the term.   It is well-established that in reviewing a factual

determination such as whether Whitaker is “totally disabled,” the

court may consider only   evidence that was before the plan

administrator, “assuming that both parties were given an

opportunity to present facts to the administrator.”1   Wildbur,

974 F.2d at 639; see Schadler v. Anthem Life Ins. Co., 147 F.3d

388, 395 (5th Cir. 1998).


     1
       The district court properly refused to consider the Social
Security Administrative Law Judge’s determination because the
determination itself was not in the administrative record and it
relied on medical records subsequent to the Committee’s April
1995 decision. We find no support for Whitaker’s assertion that
the Committee must consider a subsequent Social Security
Administration determination of disability, and we refuse to
adopt such a rule here. See Block v. Pitney Bowes Inc., 952 F.2d
1450, 1455-56 (D.C. Cir. 1992) (refusing to find administrator’s
decision denying long-term disability benefits arbitrary based on
subsequent Social Security Administration award resting in part
on medical reports never submitted to the plan administrator);
Freeman v. Sickness & Accident Disability Plan of AT&T Tech.,
Inc., 823 F. Supp. 404, 416 (S.D. Miss. 1993) (holding that plan
administrator’s failure to consider Social Security
Administration award that was not presented and was decided under
a different standard does not make administrator’s decision
incorrect or ill-considered).

                                 7
     Whitaker tries to avoid this limitation on the evidence that

the district court may review by alleging that she was not given

sufficient time to present facts to the Committee.     Specifically,

Whitaker points to an April 17, 1995 letter from the Plan

informing her of the April 20, 1995 hearing and requesting any

additional medical information.   However, the record contains

evidence of both the Plan requesting and Whitaker providing

additional medical information as early as September 1994 for the

Committee’s review of her request for LTD benefits.     Whitaker

thus had a sufficient “opportunity to present facts to the

administrator,” and the district court properly concluded that it

could consider only evidence available to the Committee when

reviewing the Committee’s decision denying LTD benefits.



                 C. Sufficiency of the Evidence

     The district court reviewed all the evidence considered by

the Committee in denying Whitaker’s claim for LTD benefits.

Viewing the evidence in the light most favorable to Whitaker, the

court found that the Committee’s conclusion that Whitaker was not

“totally disabled” reflected a reasonable and impartial judgment,

and that there is a rational connection between the facts known

to or determined by the Committee and its decision to deny

Whitaker continuing LTD benefits.     Whitaker now appeals the

district court’s finding.

     The evidence that the Committee and the district court

considered included reports and medical records from doctors


                                  8
Whitaker had consulted, an independent medical evaluation and a

functional capacity evaluation arranged by the Plan, and a

surveillance report and video purportedly showing Whitaker

engaged in physical activity.2   These records were independently

evaluated by a registered nurse and a doctor employed by the

Plan, and were provided to each member of the Committee.

     Upon reviewing the medical records and reports considered by

the Committee in denying Whitaker’s request for LTD benefits, we

agree with the district court that there was sufficient evidence

for the Committee to conclude that Whitaker was not “totally

disabled.”   The medical reports disclosed that Whitaker

complained of back pain and had a limping gait, but an MRI of the

lumbar spine and lumbar spine x-rays were normal, and her

physician found no reflex, motor, or sensory changes.   An

orthopedic surgeon that Whitaker consulted found some “mild

degeneration,” performed a course of epidural steroid injections,

and gave her a mild anti-inflammatory.   Whitaker tested negative

on the Faber’s and the Patrick’s, two orthopedic tests used to

determine whether a problem exists in the hip or lower back

     2
       Whitaker claims the Committee’s use of a “surreptitious
video tape” supports her argument that the Committee’s decision
was arbitrary and capricious. The only legal support Whitaker
offers for her proposition, however, is the court’s decision in
Rigby v. Bayer Corp., 933 F. Supp. 628, 633-34 (E.D. Tex. 1996)
(finding abuse of discretion where plan administrator relied
exclusively on a surveillance video, disregarding the only
medical assessment found in the record). We find Rigby
inapplicable in the instant case in light of the Committee’s
evaluation of Whitaker’s medical records, especially since the
district court was “unimpressed” by the videotape but still found
sufficient evidence to support the Committee’s denial of
benefits.

                                 9
regions.    A discogram revealed that Whitaker’s pain provocation

was only mildly positive and her disc contrast pattern was

normal, although the physician performing the discogram felt she

may be a candidate for lumbar facet injections or a lumbar fusion

to permanently relieve her pain.3

     In addition to considering the medical records from doctors

Whitaker had consulted, the Committee also based its decision on

an independent medical examination and functional analysis of

Whitaker.   Although tests performed in the functional analysis

indicated Whitaker had poor overall strength, the physical

therapist performing the test found the validity of the results

“equivocal” because of Whitaker’s “submaximal effort” and

“symptom exaggeration.”   This report, together with the medical

reports and investigation reports, were reviewed by both the

registered nurse and the doctor employed by the Plan.   They both

determined that the evidence demonstrated Whitaker was not

disabled from doing any job and recommended the Committee deny

her LTD benefits.

     Based on the medical records and reports reviewed by the

Committee in its decision to deny Whitaker LTD benefits, we agree

with the district court that the Committee’s conclusion was


     3
       Although Whitaker alleges that the Committee’s decision
was arbitrary and capricious because the Committee “set the LTD
Committee hearing knowing Whitaker was to undergo back surgery
that would likely clarify and confirm her disabling condition,”
she provides no factual or legal support for her proposition, and
we see no need to impose a duty for the Committee to delay
consideration in light of the significant medical evidence it
reviewed.

                                 10
reasonable and that there exists a rational connection between

the facts known to the Committee and its decision to deny

benefits.   As the district court found in reviewing the record

and as the facts stated above make clear, substantial evidence

exists to support the decision that Whitaker was not “totally

disabled.” The Committee’s decision therefore did not represent

an abuse of discretion.4

     Whitaker contends that the evidence the Committee considered

was insufficient, however, because the Committee did not consult

a vocational expert in reaching its decision.    Whitaker contends

the lack of any evidence in the administrative record suggesting

specific jobs Whitaker was able to perform resulted in an

arbitrary and capricious decision.    We disagree.

     The authority upon which Whitaker relies for this

proposition reveals the weakness of her argument.    In Duhon v.

Texaco, Inc., 15 F.3d 1302 (5th Cir. 1994), we held the absence

of vocational rehabilitation evidence does not require a finding

of abuse of discretion.    See id. at 1309.   Rather, “we will allow


     4
       We find no merit in Whitaker’s argument that the
Committee’s decision was an abuse of discretion because the Plan
Administrator had previously awarded her twelve months of LTD
benefits. The Plan provides that a participant unable to perform
his or her own occupation is entitled to LTD benefits for a
maximum of twelve months, but to receive benefits after twelve
months a participant must be unable to engage in any occupation
for which he or she is, or could become, reasonably suited by
education, experience, or training. It is only this second
element that Whitaker now challenges. See McKenzie v. Gen. Tel.
Co., 41 F.3d 1310, 1317-18 (9th Cir. 1994) (finding no abuse of
discretion where LTD benefits plan terminated benefits under an
“any occupation” standard after awarding eighteen months of
benefits under an “own occupation” standard).

                                 11
the reviewing court to decide, on a case-by-case basis, whether

under the particular facts the plan administrator abused his

discretion by not obtaining the opinion of a vocational

rehabilitation expert.”   Id.; see Thibodeaux v. Continental Cas.

Ins. Co., 138 F.3d 593, 596 (5th Cir. 1998).   The Duhon court

found that, given the medical evidence presented, “the plan

administrator could competently determine disability without

vocational testimony.”    Duhon, 15 F.3d at 1309; see McKenzie, 41

F.3d at 1317 (“[C]onsideration of vocational evidence is

unnecessary where the evidence in the administrative record

supports the conclusion that the claimant does not have an

impairment which would prevent him from performing some

identifiable job.”).

     Under the facts of the instant case, we hold that it was not

an abuse of discretion for the Committee to evaluate only the

medical evidence and deny Whitaker’s request without consulting a

vocational expert.   As found by the district court, substantial

evidence exists in the record to support the decision that

Whitaker was not “totally disabled.”   While other circumstances

where the medical evidence is more equivocal may require the

testimony of a vocational expert, see Rigby, 933 F. Supp. at 633-

34 (holding the denial of benefits an abuse of discretion where

the plan administrator disregarded the only medical assessment

and had not consulted a vocational expert), the absence of such

testimony here did not make the Committee’s decision an abuse of




                                 12
discretion.5




                            III. CONCLUSION

     For the foregoing reasons, we find that the district court

correctly granted summary judgment in favor of the defendants.

The judgment is AFFIRMED.




     5
       Since Whitaker has not prevailed on this appeal, her
argument in favor of attorney’s fees in the event that she did
prevail is moot.

                                  13
