                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 06-2389
                                ________________

Nancy Kecso,                              *
                                          *
           Appellee,                      *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Southern District of Iowa.
Meredith Corporation,                     *
                                          *
           Appellant.                     *

                                ________________

                          Submitted: November 16, 2006
                              Filed: March 27, 2007
                               ________________

Before BYE, BOWMAN and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

      Nancy Kecso sued her employer, Meredith Corporation, seeking to overturn
Meredith’s decision to discontinue the long-term disability benefits that she had been
receiving after being diagnosed with a brain tumor. On cross-motions for summary
judgment, the district court denied Meredith’s summary judgment motion but granted
Kecso’s and subsequently awarded her a money judgment. Meredith appeals, and we
reverse.
I.    BACKGROUND

       Kecso began working for Meredith in 2001. In November 2002, Kecso suffered
a seizure and was hospitalized. Scans taken that day revealed that Kecso had a tumor
in her brain above her pituitary gland. In January 2003, doctors at the Mayo Clinic
diagnosed the tumor as a benign astrocytoma. They recommended no treatment other
than anti-seizure medication. Since her seizure, Kecso has had recurrent headaches,
body aches and fatigue.

       After the seizure, Kecso returned to work for a brief period in December 2002.
Meredith subsequently granted Kecso leave under the Family Medical Leave Act. In
February 2003, Kecso began receiving short-term disability benefits and then long-
term disability (“LTD”) benefits beginning in June 2003. The record is silent as to
whether Meredith expressly determined that Kecso qualified for LTD benefits under
its disability plan or whether Meredith simply decided to pay Kecso LTD benefits
while attempting to ascertain her eligibility for them. Meredith both insures and
administers its disability benefits plan, which is subject to the Employee Retirement
Income Security Act (“ERISA”). Under the plan, Meredith has discretion to interpret
the terms of the plan and to determine eligibility for benefits.

       Kecso regularly saw a neurologist, Dr. David Friedgood, beginning in late
2002. In early December 2002, Dr. Friedgood certified to Meredith that Kecso’s only
medical restriction was “no driving.” Later that month, Dr. Friedgood released Kecso
to work without restrictions beginning in January of 2003, again noting only that she
was not to drive. In March, May, August, October and December of 2003,
Dr. Friedgood certified to Meredith that Kecso had no medical restrictions. However,
in February 2004, he certified that “[Kecso] is limited by her affective and cognitive
response to her brain tumor. She finds it difficult to function and can not work
because of these symptoms.” In addition to her visits with Dr. Friedgood, Kecso
began seeing a psychiatrist in August 2003. The psychiatrist diagnosed Kecso with

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depression and anxiety and prescribed medication and therapy sessions with Dianne
Walsh, a licensed independent social worker.

       Under Meredith’s disability benefits plan, participants are required to provide
all information that Meredith considers to be relevant to its disability determination
on a continuing basis in order for the participants to maintain eligibility for benefits.
Despite having signed an authorization to release all of her medical records to
Meredith, Kecso balked at the release of notes related to her psychiatric and
psychotherapy visits, ultimately refusing to release the notes of her psychotherapy
sessions. Because Meredith believed that those notes were relevant and might explain
inconsistencies in Kecso’s other medical records, Meredith suspended Kecso’s LTD
benefits in February 2004. In March 2004, Kecso wrote to Meredith objecting to the
suspension, and Meredith treated her letter as an administrative appeal under the plan.

       From February through June 2004, while Kecso’s administrative appeal was
pending, the parties argued about the relevance of Kecso’s mental health records to
her eligibility for LTD benefits under the plan. Kecso insisted that they were
irrelevant to her disability status, and Meredith sought to review them in an effort to
reconcile inconsistencies in Kecso’s other medical records, particularly with respect
to Dr. Friedgood’s inconsistent opinions regarding Kecso’s ability to work and
whether her tumor was causing her headaches and fatigue. Ultimately, the parties
agreed that Meredith would evaluate Kecso’s eligibility for LTD benefits without
considering Kecso’s mental health. In March 2004, in the course of these discussions,
Kecso requested a complete copy of her claim file. Meredith enclosed a copy of her
claim file with its June 18, 2004 letter to Kecso’s attorney informing him of
Meredith’s determination that Kecso was not disabled within the meaning of the plan.

      Kecso sought review in district court, where the parties filed cross-motions for
summary judgment. The district court granted Kecso’s motion and denied Meredith’s,
finding that Meredith’s decision was not entitled to review under the plan’s abuse of

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discretion standard and that the evidence, when viewed on a standard “approaching
de novo review,” established that Meredith wrongfully denied Kecso’s claim for LTD
benefits. The district court subsequently awarded a judgment of $42,398.00 to Kecso,
representing unpaid benefits through the date of the district court’s judgment and
prejudgment interest. Meredith appeals the district court’s summary judgment rulings.

II.   DISCUSSION

      A.     Standard of Review

       We review an appeal from a grant of summary judgment de novo, viewing the
evidence in a light most favorable to the nonmoving party. Woo v. Deluxe Corp., 144
F.3d 1157, 1160 (8th Cir. 1998). Where, as here, an ERISA plan gives an
administrator discretionary authority to determine eligibility for benefits, a district
court will ordinarily review the administrator’s decision for an abuse of discretion.
Id. (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).
Nevertheless, a court may employ a less deferential standard of review if the claimant
presents material, probative evidence demonstrating (1) that a palpable conflict of
interest or a serious procedural irregularity existed, which (2) caused a serious breach
of the plan administrator’s fiduciary duty to the claimant. Woo, 144 F.3d at 1160; see
also Buttram v. Cent. States, S.E. & S.W. Areas Health & Welfare Fund, 76 F.3d 896,
901 (8th Cir. 1996) (“[The] irregularities must have some connection to the
substantive decision reached; i.e., they must cause the actual decision to be a breach
of the plan trustee’s fiduciary obligations.”). Woo’s second prong “presents a
considerable hurdle for plaintiffs.” Torres v. UNUM Life Ins. Co. of Am., 405 F.3d
670, 679 (8th Cir. 2005) (internal quotation omitted). We review de novo the district
court’s determination of the proper standard of review to be applied to Meredith’s
determination that Kecso was not disabled under the terms of its disability plan. Woo,
144 F.3d at 1160.



                                          -4-
       The district court found that Meredith’s roles as employer, insurer and plan
administrator established a conflict of interest. We assume without deciding that
Meredith had a palpable conflict of interest satisfying the first prong of Woo.1
Similarly, we will assume without deciding that Meredith’s failure to provide Kecso
a copy of her claim file “upon request” prior to determining Kecso’s disability status
constitutes a serious procedural irregularity satisfying the first prong of Woo. See 29
C.F.R. § 2560.503-1(h)(2)(iii). In both of these instances, however, Kecso has failed
to present any evidence of a causal connection between the conflict or procedural
irregularity and any breach of Meredith’s fiduciary duties to Kecso. While the district
court cited the rule that the existence of a conflict or procedural irregularity does not
establish a breach of fiduciary duty without “some connection to the substantive
decision reached,” it failed to cite any evidence causally connecting either the conflict
or procedural irregularity to any breach of a fiduciary duty on Meredith’s part.
Standing alone, a conflict of interest does not establish a breach of fiduciary duty
because “ERISA itself contemplates the use of fiduciaries who might not be entirely
neutral.” Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1197 (8th Cir. 2002).
We have also observed that “[t]he mere assertion of an apparent irregularity, without
more, is insufficient to give rise to heightened review.” Layes v. Mead Corp., 132

       1
        There does not appear to be consensus in this circuit as to whether a
presumption of a palpable conflict of interest should apply under Woo’s first prong
where the same entity both funds and administers the benefits plan. Compare Tillery
v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1197 (8th Cir. 2002) (holding that when
an entity both funds and administers a plan, a rebuttable presumption of a palpable
conflict of interest arises) and Schatz v. Mut. of Omaha Ins. Co., 220 F.3d 944, 947-48
(8th Cir. 2000) (holding that “when the insurer is also the plan administrator, we have
recognized something akin to a rebuttable presumption of a palpable conflict of
interest”) with Chronister v. Baptist Health, 442 F.3d 648, 655 (8th Cir. 2006)
(holding that “it is wrong to assume a financial conflict of interest from the fact that
the plan administrator is also the insurer”) and Davolt v. Executive Comm. of O’Reilly
Auto., 206 F.3d 806, 809 (8th Cir. 2000) (“Although the fact that the plan
administrator is also the insurer may give rise to a conflict of interest, the district court
erred when it assumed an automatic conflict of interest existed.”).

                                            -5-
F.3d 1246, 1250 (8th Cir. 1998). “[A]bsent material, probative evidence, beyond the
mere fact of the apparent irregularity, tending to show that the administrator breached
his fiduciary obligation, we will apply the traditional abuse of discretion analysis.”
Buttram, 76 F.3d at 900 (internal citations omitted).2 Consequently, because Kecso
failed to present evidence that the conflict of interest or the procedural irregularity
caused Meredith to breach its fiduciary duty, neither warrants a review of Meredith’s
decision on a standard less deferential than abuse of discretion.

      The district court also held that under the first prong of Woo, Meredith acted
without proper judgment by failing to give appropriate weight to Dr. Friedgood’s
opinions and by initially paying LTD benefits and subsequently denying them based
substantially on the same evidence. It then held that Meredith’s failure to use proper
judgment established the causal connection required under Woo’s second prong. We
do not agree that Meredith acted without proper judgment.

       The district court concluded that Meredith failed to exercise proper judgment
because “Meredith disregarded Dr. Friedgood’s opinions that Kecso’s pain,
headaches, and fatigue were due to her astrocytoma despite his credentials as a
neurologist . . . and the fact that he treated Kecso for over two years, from the time her
tumor was diagnosed, before Meredith terminated her LTD benefits.” Meredith did
not disregard Dr. Friedgood’s opinions. The record amply demonstrates that from
March 2003 through June 2004, with two exceptions, Dr. Friedgood repeatedly
certified to Meredith that Kecso had no medical restrictions. The first exception arose
in a December 31, 2003 letter from Dr. Friedgood to Meredith stating, “[a]s a result


      2
       We also find it persuasive that Kecso identifies no prejudice flowing from
Meredith’s failure to produce her claim file prior to deciding her administrative
appeal. Presumably, had this procedural irregularity caused a serious breach of
Meredith’s fiduciary duty to Kecso, she could identify some harm arising from the
breach. See Neumann v. AT&T Commc’ns, Inc., 376 F.3d 773, 782 n.4 (8th Cir.
2004).

                                           -6-
of [Kecso’s] condition she suffers from chronic headaches and excessive fatigue. She
has been unable to return to her job because of these symptoms.” Less than two
months earlier, Dr. Friedgood had written to Kecso’s primary physician that “[Kecso]
continues to complain of chronic fatigue and a number of sensory complaints, the
exact etiology of which is unknown.” The record reveals no explanation as to how or
why Dr. Friedgood’s opinion about the causation of Kecso’s sensory complaints
changed in those two months. The second exception was Dr. Friedgood’s medical
certification to Meredith on February 4, 2004, in which he said, “[Kecso] is limited
by her affective and cognitive response to her brain tumor. She finds it difficult to
function and can not work because of these symptoms.” In the letter reporting its
decision to discontinue Kecso’s LTD benefits, after recounting both Dr. Friedgood’s
observations and other relevant evidence, Meredith reasonably concluded, “[T]he
medical records contain inconsistencies that cause Meredith to question the accuracy
with which she is self-reporting her symptoms.” As in Pralutsky v. Metropolitan Life
Insurance Co., “[t]his is not a case where the plan trustee failed to inquire into the
relevant circumstances at issue, or never offered a written decision that can be
reviewed, or committed irregularities so severe that the court ‘has a total lack of faith
in the integrity of the decision making process.’” 435 F.3d 833, 838 (8th Cir.)
(quoting Buttram, 76 F.3d at 900), cert. denied, --- U.S. ---, 127 S. Ct. 264 (2006).
We similarly conclude that Meredith did not fail to use proper judgment in its
consideration of the unexplained inconsistency in Dr. Friedgood’s opinions.

      We also do not agree with the district court’s conclusion that Meredith did not
use proper judgment in initially paying LTD benefits and subsequently denying them
based substantially on the same evidence. While we are mindful that “unless
information available to an insurer alters in some significant way, the previous
payment of benefits is a circumstance that must weigh against the propriety of an
insurer’s decision to discontinue those payments,” McOsker v. Paul Revere Life
Insurance Co., 279 F.3d 586, 589 (8th Cir. 2002), we are not convinced that McOsker
compels a finding here of failure to use proper judgment, nor are we convinced that

                                          -7-
Meredith failed to use proper judgment under these circumstances, see id. (“We are
not suggesting that paying benefits operates forever as an estoppel so that an insurer
can never change its mind . . . .”). To the contrary, the record suggests that Meredith
simply agreed to pay LTD benefits to Kecso while it sought to reconcile the
conflicting medical information by obtaining all of Kecso’s relevant medical records.
Kecso’s refusal to provide the psychotherapy records that might have revealed
whether her symptoms were related to her tumor frustrated Meredith’s investigation.3
As a result, Meredith exercised its option under the plan to suspend Kecso’s LTD
benefits. Once the parties reached a compromise regarding Kecso’s mental health
records, Meredith made a prompt determination of Kecso’s eligibility for LTD
benefits. Moreover, the record reflects that Meredith received significant additional
medical information between the time it began paying LTD benefits to Kecso in June
2003 and the date that it determined that Kecso was ineligible in June 2004. This
information included several medical certifications from Dr. Friedgood that Kecso had
no medical restrictions and his opinions that Kecso’s fatigue and pain were of
unknown etiology and that she could perform daily activities at home. Rather than
evidencing a lack of proper judgment, this record reflects Meredith’s exercise of
reasonable and prudent judgment. The fact that Meredith agreed to pay LTD benefits
while it investigated apparent inconsistencies and ambiguities in the medical record
and that it based its decision on the entire record, including subsequently received
medical evidence, does not create a basis upon which a court should find a failure to
use proper judgment and apply a less deferential standard of review. See Tillery, 280
F.3d at 1197 (“The plan administrator’s fiduciary duties extend to everyone covered
by the plan, and an administrator who fails properly to investigate a claim breaches
its fiduciary duty to all beneficiaries by granting benefits to unqualified claimants.”).


      3
        In order to receive LTD benefits under Meredith’s plan, a claimant must be
“totally disabled,” defined as: “(1) Due to an illness or injury, you are unable to
perform the material duties of your regular occupation at Meredith, and would be
unable to perform similar duties at any other employer; and (2) You are under the
continuous care of a physician.”

                                          -8-
      Because we find no basis warranting a review of Meredith’s decision on a
standard less deferential than abuse of discretion, the district court erred by failing to
review Meredith’s benefits decision on an abuse of discretion standard.

      B.     Meredith’s Benefits Decision

       We now turn to the merits of Meredith’s denial of Kecso’s claim for LTD
benefits. See Rittenhouse v. UnitedHealth Group Long Term Disability Ins. Plan, 476
F.3d 626, 629-32 (8th Cir. 2007) (holding that the district court erred in applying de
novo standard; proceeding to review the merits of the claim under an abuse-of-
discretion standard). Under an abuse of discretion standard, “the plan administrator’s
decision will be upheld if it was reasonable, that is, if it was supported by substantial
evidence. If the decision satisfies this standard, it should not be disturbed even if
another reasonable, but different, interpretation may be made.” McGarrah v. Hartford
Life Ins. Co., 234 F.3d 1026, 1031 (8th Cir. 2000) (internal quotation omitted).
Substantial evidence is more than a scintilla but less than a preponderance. Phillips-
Foster v. UNUM Life Ins. Co. of Am., 302 F.3d 785, 794 (8th Cir. 2002). “Where the
record reflects conflicting medical opinions, the plan administrator does not abuse his
discretion in finding that the employee is not disabled.” Smith v. UNUM Life Ins. Co.
of Am., 305 F.3d 789, 795 (8th Cir. 2002) (internal quotation omitted).

       Viewing the evidence in the light most favorable to Kecso, see Layes, 132 F.3d
at 1251, Meredith did not abuse its discretion in determining that Kecso was not
disabled under the plan. In order to be eligible for LTD benefits, Meredith’s plan
requires a finding that due to an illness or injury, Kecso was unable to perform the
material duties of her regular occupation and would be unable to perform similar
duties at any other employer. The only evidence suggesting that Kecso was unable
to work can be found in Dr. Friedgood’s statements in late 2003 and early 2004 that
Kecso “is limited by her affective and cognitive response to her brain tumor. She
finds it difficult to function and can not work because of these symptoms” and that she

                                           -9-
“is disabled by her subjective complaints of headache, fatigue, cognitive complaint.”
Against this and in support of Meredith’s determination, both Dr. Friedgood and Dr.
Corey Raffel at the Mayo Clinic released Kecso to return to work without restrictions
in early 2003. Dr. Friedgood subsequently certified that Kecso had “no medical
restrictions” in March, May, August, October and December of 2003. In November
2003, Dr. Friedgood wrote to Kecso’s primary physician that “[Kecso] continues to
complain of chronic fatigue and a number of sensory complaints, the exact etiology
of which is unknown.” In March 2004, in an effort to clarify Kecso’s disability status,
Meredith’s corporate medical director conducted a telephone interview of
Dr. Friedgood in which Dr. Friedgood admitted that Kecso had no medical restrictions
and appeared to function well at home. Dr. Friedgood stated that he had no objections
to Kecso’s returning to work on a part-time basis. There is no evidence in the record
explaining Dr. Friedgood’s vacillating opinion, and the medical records from Kecso’s
late 2002 and early 2003 visits to the Mayo Clinic suggest that her tumor was not
disabling. See Smith, 305 F.3d at 795 (“Where the record reflects conflicting medical
opinions, the plan administrator does not abuse his discretion in finding that the
employee is not disabled.”). Viewing the evidence in the light most favorable to
Kecso and applying an abuse of discretion standard of review, we conclude that
Meredith’s decision to terminate Kecso’s LTD benefits was reasonable in that it was
supported by substantial evidence.

III.   CONCLUSION

       We reverse the district court’s grant of summary judgment to Kecso and remand
the case for entry of judgment in favor of Meredith.

                       ______________________________




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