     Case: 10-20668 Document: 00511500524 Page: 1 Date Filed: 06/07/2011




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

                                                 FILED
                                                                            June 7, 2011

                                     No. 10-20668                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



HABIBA EWING,

                                                   Plaintiff-Appellant
v.

METROPOLITAN LIFE INSURANCE COMPANY,

                                                   Defendant-Appellee




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                   (08-CV-2697)


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Habiba Ewing appeals from the district court’s grant of summary
judgment to Metropolitan Life Insurance Company (“MetLife”) on Ewing’s claim
that MetLife erroneously denied her long-term disability benefits.                     Ewing
injured her shoulder, leading to shoulder surgery followed by ongoing complaints
of pain. Ewing worked for Shell Oil Company and was covered by the company’s
long term disability benefits plan (“Plan”). MetLife insures the payment of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                   No. 10-20668

benefits under the plan and reviews claims filed thereunder. Ewing filed for
long-term disability benefits. MetLife denied her claim on the ground that she
was not “disabled,” as the term is defined by the Plan. Ewing administratively
appealed MetLife’s determination, but was unsuccessful. She filed this lawsuit
challenging the denial of benefits.
      The terms of the Plan grant MetLife “discretionary authority to interpret
the terms of the plan and to determine eligibility for and entitlement to plan
benefits in accordance with the terms of the plan.” Where a plan governed by
ERISA grants the administrator “‘discretionary authority with respect to the
decision at issue,’” we review a denial of benefits for abuse of discretion. Corry
v. Liberty Life Assurance Co. of Bos., 499 F.3d 389, 397 (5th Cir. 2007) (quoting
Vega v. Nat’l Life Ins. Serv., Inc., 188 F.3d 287, 295 (5th Cir. 1999) (en banc)).
We apply this deferential standard of review even where the administrator is
also the party obligated to pay the benefits, although we consider any conflict of
interest as a factor in our review. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 118
(2008). The administrator’s decision must be supported by substantial evidence.
Id. (citing Ellis v. Liberty Life Assurance Co. of Bos., 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.’’ Ellis, 394 F.3d at 273.
      Ewing argues that MetLife abused its discretion by applying an incorrect
definition of “disabled.” The Plan provided the following definition of disability:
      that, due to an Injury or Sickness, you require the regular care and
      attendance of a Doctor and . . . :
      1.a. During the Elimination Period [before long term disability
      payments become available] and the 24 month period immediately
      following the Elimination Period, you are unable to perform each of
      the material duties of your regular job or a Comparable Occupation
      with the Employer which the Employer will have offered to such
      Employee, provided a Comparable Occupation is available; and

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       b. after the first 24 months of benefit payments, you must be unable
       to perform each of the material duties of any gainful work or service
       for which you are reasonably qualified taking into consideration
       your training, education, experience and past earnings.
MetLife’s summary plan description, see 29 U.S.C. § 1022(a), provided a briefer
but similar definition:

       To qualify for LTD benefits you must be disabled; that is, you must:
       Be under a doctor’s care;
       Be unable by reason of your illness or injury to perform the duties
       of your own job, or another job available within a participating
       company for which you are reasonably qualified, for at least 52
       consecutive weeks;
       Apply for benefits, including submitting medical evidence of
       disability acceptable to MetLife; and
       Obtain MetLife’s approval of your claim.
Ewing argues that MetLife misinterpreted these definitions by erroneously
considering Ewing’s employer’s willingness to accommodate her symptoms when
evaluating whether those symptoms prevented her from doing the duties of her
job. This argument is without merit. By the terms of both the Plan and the
summary plan description, MetLife was required to consider whether Ewing’s
injury or illness prevented her from performing the duties of her job or a
comparable position within the company. It was not an abuse of discretion for
MetLife to consider the employer’s accommodations as part of its inquiry into the
scope of Ewing’s duties.1 See Plyant v. Hartford Life & Accident Ins. Co., 497


       1
         Ewing also argues that the summary plan description and the Plan itself were
inconsistent. See Hansen v. Cont’l Ins. Co., 940 F.2d 971, 982 (5th Cir. 1991) (holding that “if
there is a conflict between the summary plan description and the terms of the policy, the
summary plan description shall govern.”). Ewing did not raise this issue below and therefore
did not preserve it for appellate review. See Celanese Corp. v. Martin K. Eby Const. Co., 620
F.3d 529, 531 (5th Cir. 2010) (“The general rule of this court is that arguments not raised
before the district court are waived and will not be considered on appeal.”). In any event, the
definitions are similar for the purposes of the abuse of discretion Ewing has alleged.

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F.3d 536 (5th Cir 2007) (rejecting argument that insurer “incorrectly included
functional limitations in [beneficiary’s] job description to accommodate her
disability”); Vercher v. Alexander & Alexander, Inc., 379 F.3d 222, 231 (5th Cir.
2004) (affirming administrator’s conclusion that “so long as [beneficiary] was
able to perform all the substantial and important aspects of her job, with
reasonable accommodation, and any aspects of the job that she could not perform
with reasonable accommodation were, singularly or together, not indispensable
or essential to the job, then she was not disabled”).
      Ewing argues next that MetLife abused its discretion by failing to employ
a vocational rehabilitation expert. Ewing failed to raise this issue in the district
court and therefore has failed to preserve it for appeal. Celanese Corp., 620 F.3d
at 531.   Moreover, insofar as we may consider the lack of a vocational
rehabilitation expert as part of a general challenge to MetLife’s denial based on
arbitrariness or lack of evidentiary support, Ewing has not shown that it was an
abuse of discretion to decline to employ a vocational rehabilitation expert in this
case. See Duhon v. Texaco, Inc., 15 F.3d. 1302, 1309 (5th Cir. 1994) (rejecting
per se rule that an administrator abuses its discretion by failing to use a
vocational rehabilitation expert).
      Finally, Ewing argues that the district court erred in refusing to permit
her to supplement the record below with additional medical records.            This
argument is without merit. The law of this circuit is that “when assessing
factual questions, the district court is constrained to the evidence before the plan
administrator.” Vega, 188 F.3d at 299 (emphasis added); see also Crosby v. La.
Health Serv. & Indem. Co., 629 F.3d 457, 461 (holding “that Vega prohibits the
admission of evidence to resolve the merits of the coverage determination . . .
unless the evidence is in the administrative record, relates to how the
administrator has interpreted the plan in the past, or would assist the court in



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understanding medical terms and procedures”). Admission of additional medical
records was unnecessary.
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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