                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-1295


JOBIE LANCE,

                Plaintiff - Appellant,

           v.

RETIREMENT PLAN OF INTERNATIONAL PAPER COMPANY,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. C. Weston Houck, Senior District
Judge. (2:06-cv-03211-CWH)


Argued:   March 25, 2009                   Decided:   May 29, 2009


Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge,       and
David A. FABER, Senior United States District Judge for       the
Southern District of West Virginia, sitting by designation.


Affirmed by unpublished opinion. Senior Judge Faber wrote the
opinion, in which Chief Judge Williams and Judge Wilkinson
joined.


ARGUED: Nathaniel W. Bax, FOSTER LAW FIRM, LLP, Greenville,
South Carolina, for Appellant.    Susan P. Dion, MCGUIREWOODS,
LLP, Charlotte, North Carolina, for Appellee. ON BRIEF: Robert
E. Hoskins, FOSTER LAW FIRM, LLP, Greenville, South Carolina,
for Appellant.    Bruce M. Steen, MCGUIREWOODS, LLP, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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FABER, Senior District Judge:

       Jobie Lance appeals the district court’s grant of judgment

in favor of the Retirement Plan of International Paper Company

with regard to the plan administrator’s denial of Lance’s claim

for disability retirement benefits.                 For the reasons set forth

below, we affirm.



                                          I.

       Appellant Jobie Lance (“Lance”) is a former employee of

International           Paper   Company     (“IP”),          where    he     worked       for

approximately thirty years as a process specialist.                              Lance, who

has    a    vocational     associate’s    degree        in    mechanical         operation,

previously served in the United States Army as a heavy equipment

operator.         Between 1982 and 2005, he also owned and operated two

small businesses, one through which he installed and repaired

home   air    conditioning       units,   and     the    other       through      which   he

repaired automobile air conditioners.

       As    an    IP   employee,   Lance       participated         in    the    company’s

retirement plan (“the plan”), which included the provision of

retirement disability benefits to qualified recipients suffering

from a “disability,” defined as follows:

       “Disability” or “Disabled” means a total disability
       which is a medically determinable physical or mental
       impairment or diagnosed terminal illness which renders
       the Participant incapable of performing any occupation
       or employment for which the Participant is qualified

                                            3
       by education, training or experience and which is
       likely to be permanent during the remainder of the
       Participant’s    life,   provided   that    the   Plan
       Administrator finds, and a physician or physicians
       designated by the Plan Administrator certify, that the
       Participant is Disabled.

(JA 216.)

       Benefits    paid     pursuant      to   the    plan     are   provided       by   a

separate trust.        Although IP funds this trust, it has no access

to the assets of the trust for its own purposes.                     The review and

processing of disability claims under the plan is conducted by

Sedgwick Claims Management Service (“Sedgwick”).                         Sedgwick, as

plan administrator, is given discretionary power and authority

to interpret the plan and determine benefit eligibility, among

other responsibilities.           (JA 195.)

       Over the years, Lance developed neck and back problems as a

result    of   a   number    of     accidents.         He     suffered      falls   with

resultant back injuries in 1993 and 1999, and was involved in a

rear-end automobile collision in 2004.                  From 1993 through 2006,

he underwent no fewer than four cervical fusions, and received

steroid injections to his spine.               His treating physician, George

Khoury,    M.D.,    diagnosed       him    with      cervical    and     lumbar     disc

disease.       These      medical    problems        caused     Lance    to   end    his

employment with IP on February 4, 2005.

       In a letter to IP dated June 7, 2005, Dr. Khoury opined

that   Lance’s     cervical    disc       disease     constituted       a   “permanent


                                           4
partial disability” rendering him unable to return to his former

position    as    a   process    specialist.          (JA    102.)          Dr.     Khoury

explained that Lance was, at that time, “undergoing a functional

capacity      evaluation        to     determine      his         exact      level       of

functioning,”     and   that     the    doctor     would     be     able    to    make    a

statement after receiving the results of the evaluation.                          (Id.)

       Lance completed a disability application form on March 16,

2006, listing the cause of his disability as surgery to his neck

and a degenerating disc in his lower back resulting from a fall.

(JA 26.)      On the accompanying functional assessment form, Dr.

Khoury     gave   Lance’s     condition       as   cervical       and      lumbar    disc

disease, with pain in the neck, arm, and lower back.                             (JA 33.)

Dr. Khoury specifically concluded, however, that Lance was not

“totally disabled,” but rather only “partially disabled.”                             (JA

34.)       Moreover,    the     physician      did    not     feel      that      Lance’s

condition was likely to be permanent.                       (Id.)       Based on his

review,     Dr.   Khoury      determined       that    Lance        had     a     “severe

limitation of functional capacity,” and was “capable of minimal

(sedentary) activity.” 1        (JA 36.)



       1
       More particularly, Dr. Khoury determined that, during an
eight-hour work day, Lance could stand or walk for three to five
hours and could sit for the same period; that he could lift ten
to twenty pounds, but only five pounds frequently; that he could
grasp, push and pull, perform fine manipulation, and use his
feet to operate foot controls; but that he was incapable of
(Continued)
                                          5
       Upon   receipt      of        Lance’s     medical     records,     Sedgwick

commissioned     Richard        A.     Silver,      M.D.,    a   board-certified

orthopedic surgeon, to perform an independent medical review of

Lance’s claim.        (JA 77-80.)         Dr. Silver’s review led him to

conclude      that    Lance’s          subjective      complaints       were     not

substantiated by objective clinical findings:

       The claimant has a solid fusion of his cervical spine
       with no documentation of any loss of functionality of
       cervical spine. There is no documentation of any loss
       of functionality of right or left upper extremity and
       there are no focal neurological deficits in the upper
       extremities.

       The claimant does have multilevel discogenic disc
       disease at L2-3, L3-4, L4-5, and L5-S1. The claimant
       has no documentation of any loss of functionality in
       the   lumbosacral  spine.     The   claimant  has   no
       documentation of any loss of functionality in the
       right or left lower extremity.       The claimant is
       capable of being gainfully employed on a medical
       evidence based review of the medical records and being
       fit for full duty at medium work to medium-heavy work
       as delineated above.

(JA 78-79.)

       In the course of Sedgwick’s review of Lance’s claim, his

prior positions, both with IP and in his air conditioning and

HVAC    businesses,     were    evaluated      by    Zenia    Andrews,    JAS,   to

classify the level of exertion required.                   She reasoned that the

process specialist position should be classified as “medium to



bending, stooping, climbing, or reaching above shoulder level.
(JA 35.)



                                          6
heavy duty to accommodate occasional lifting over 45 pounds.”

(JA    82.)      His       work    in    automobile     air     conditioning         and      HVAC

repair    was    classified         as    “medium     duty”     work,    however,          as   it

necessitated         the    occasional         exertion    of    20     to    50   pounds       of

force, the frequent exertion of 10 to 25 pounds of force, or the

constant exertion of up to 10 pounds of force to move objects.

(Id.)

       Because the medical evidence failed to indicate that Lance

was unable to perform at the level required by his previous

positions,       both       the     disability       specialist         and    the    manager

handling Lance’s claim recommended denial of his request for

benefits.        (JA       87-88.)        In    a    letter     dated    June      29,     2006,

Sedgwick informed Lance of its determination that he did not

meet    the     eligibility         requirements        for     disability         retirement

benefits       under    the       plan.     (JA      90-93.)      In     accordance           with

Article XII, Section 12.07(a) of the plan, the letter included

the reasons for denial and references to pertinent provisions of

the     plan    on     which      the     denial     was   based,        as    well      as     an

explanation of the appeal procedure.                    (JA 90-93, 198.)

       Lance appealed Sedgwick’s decision by letter dated July 6,

2006, and included additional medical documentation in support

of his claim.              (JA 97.)        Consequently, Sedgwick commissioned

three     additional         physicians         to   perform      independent         medical

reviews of Lance’s claim.                 Each of these physicians essentially

                                                7
opined that, excepting periods of recuperation after his back

surgeries, Lance did not have a disability preventing him from

returning to his prior positions.                 (JA 108-18.)        On this basis,

Sedgwick’s disability retirement committee determined that the

denial of benefits should be upheld.                (JA 123.)

       This    action    followed,       with   Lance     filing    suit       under    the

Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C.    §    1132,    for   a   declaration     of    entitlement       to     benefits

under the plan.          In granting judgment in favor of appellee on

February 28, 2008, the district court found “no evidence in the

record which suggests that the Plan’s denial of Lance’s claim

was unreasonable, contrary to the Plan’s terms, or otherwise an

abuse of discretion.”             (JA 421.)       It is from this ruling that

Lance appeals.



                                          II.

       Where     an     ERISA     plan    confers       upon    its    administrator

discretionary         authority    in    the    exercise       of   its       power,   the

administrator’s denial of benefits is reviewed under an abuse-

of-discretion standard.            Booth v. Wal-Mart Stores, Inc. Assocs.

Health & Welfare Plan, 201 F.3d 335, 341 (4th Cir. 2000).                              Such

a discretionary decision “will not be disturbed if reasonable,

even     if    the    court     itself    would    have     reached       a    different



                                           8
conclusion.”        Id. (citing Firestone Tire & Rubber Co. v. Bruch,

489 U.S. 101, 111 (1989)).

     In weighing the reasonableness of the plan administrator’s

determination, the court considers the following factors, among

others:

     (1) the language of the plan; (2) the purposes and
     goals of the plan; (3) the adequacy of the materials
     considered to make the decision and the degree to
     which they support it; (4) whether the fiduciary’s
     interpretation was consistent with other provisions in
     the plan and with earlier interpretations of the plan;
     (5) whether the decisionmaking process was reasoned
     and   principled;  (6)   whether   the   decision   was
     consistent   with  the   procedural   and   substantive
     requirements of ERISA; (7) any external standard
     relevant to the exercise of discretion; and (8) the
     fiduciary’s motives and any conflict of interest it
     may have.

Booth, 201 F.3d at 342-43; Champion v. Black & Decker (U.S.)

Inc., 550 F.3d 353, 359 (4th Cir. 2008).

     With respect to the eighth factor above, appellant argues

that the United States Supreme Court’s decision in Metropolitan

Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008), which was

issued    subsequent      to     the   district       court’s   decision     below,

altered the standard of review such that remand to the district

court    is   necessary.         The   Court    in    Glenn   held   that   a   plan

administrator operates under a conflict of interest where it

serves in the dual role of evaluating claims and also paying

claims.       Id.   at   2346,    2348.        Such   a   conflict   of   interest,

however, does not change the standard of review in ERISA cases.

                                          9
Rather,      “when        reviewing       an       ERISA         plan        administrator’s

discretionary         determination,           a         court        must     review      the

determination for abuse of discretion and, in doing so, take the

conflict     of    interest      into    account         only    as   ‘one     factor    among

many’ that is relevant in deciding whether the administrator

abused    its     discretion.”          Champion,         550    F.3d    at    358   (quoting

Glenn, 128 S. Ct. at 2351).

      Appellant’s argument fails, in any case, because the plan

at   issue   does     not    operate      under       a    conflict      of     interest    as

contemplated by Glenn.             As the district court correctly noted,

“[b]ecause the Plan’s benefits are funded by a separate trust to

which    International          Paper   does       not    have    access       for   its   own

purposes,       the   Plan      does    not    have       significant         incentives    to

benefit itself by denying benefits.                      Furthermore, the Plan has a

separate claims administrator, Sedgwick.”                             (JA 420.)         To the

extent    this     type    of    plan    structure         creates      any     conflict    of

interest on the part of its administrator, that conflict may be

deemed of such little importance as to recede “to the vanishing

point.”      See Glenn, 128 S. Ct. at 2351.                      See also De Nobel v.

Vitro Corp., 885 F.2d 1180, 1191-92 (4th Cir. 1989).

      It is more than evident that the other Booth factors, which

were properly applied by the district court, weigh in favor of

appellee.         Under the plain language of the plan, Lance would

only have been entitled to disability retirement benefits if

                                              10
suffering      from    a    medically        determinable,        permanent,    total

disability rendering him incapable of performing any occupation

for which he is qualified.              Even under the assessment of Dr.

Khoury,     upon      whose     diagnosis       appellant       depends,       Lance’s

condition      could       be   considered       only     partially      disabling.

Importantly, Dr. Khoury did not believe that Lance’s condition

was   likely    to    be   permanent,    as    required    to     receive    benefits

under the terms of the plan.                 Considering Dr. Khoury’s opinion

and   the   opinions       of   the   four    physicians     it    commissioned     to

review Lance’s claim, Sedgwick’s denial of benefits was entirely

reasonable.     Accordingly, the judgment of the district court is



                                                                            AFFIRMED.




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