                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   _____________

                                  No. 00-3838WM
                                  _____________

Terry Clapp,                            *
                                        *
            Appellee,                   *
                                        * On Appeal from the United
      v.                                * States District Court
                                        * for the Western District
                                        * of Missouri.
Citibank, N.A. Disability Plan (501),   *
                                        *
            Appellant.                  *
                                   ___________

                          Submitted: June 14, 2001
                              Filed: August 22, 2001
                                  ___________

Before MORRIS SHEPPARD ARNOLD and RICHARD S. ARNOLD, Circuit
      Judges, and BATAILLON,1 District Judge.
                              ___________

RICHARD S. ARNOLD, Circuit Judge.

      This action arises under 29 U.S.C. § 1132(a)(1)(B), part of the Employee
Retirement Income Security Act of 1974 (as amended), 29 U.S.C. §§ 1001-1416
(ERISA). Citibank, N.A. Disability Plan (501) ("Citibank") appeals the District Court's
order and judgment in favor of Terry Clapp. Citibank contends that the Court erred in



      1
      The Hon. Joseph F. Bataillon, United States District Judge for the District of
Nebraska, sitting by designation.
holding that Citibank's plan administrator abused its discretion in denying plaintiff long-
term disability benefits under its employee welfare plan. We agree and reverse.

                                            I.

      Terry Clapp was a bill collector for Citibank and a participant in its employee
benefits plan. Aetna Insurance Company, the plan's Claims Administrator, determined
benefit eligibility. The plan defines disability as

      a mental or physical condition which the Claims Administrator/Fiduciary
      determines:

      (i) prevents the Participant from performing each and every material duty
      pertaining to his or her regular occupation (and after 24 consecutive
      months of such condition prevents the participant from engaging in each
      and every occupation or employment for wage or profit for which
      Employee is reasonably qualified by reason of education, training or
      experience or may reasonably become qualified.)

Appendix of Appellant (App.) at 76-77.

       Plaintiff was initially certified for disability on November 10, 1993. She
complained of incapacitating nerve ending pain, pain across her shoulders and back,
pain radiating down her arms, and tightness in her chest and throat. On November 22,
1993, Dr. Feder, plaintiff's primary care physician, reported that he had not made a
specific diagnosis, and that an MRI revealed brain irregularities which most likely
resulted from a microvascular cause. The next day, Dr. Feder reported to Aetna that
plaintiff had complained of leg pain, but the orthopedic work-up was negative. Dr.
Hopewell, a neurologist, informed Aetna that he found no other neurological symptoms.
On December 3, 1993, Dr. Feder informed Aetna that plaintiff could return to work.
Plaintiff was scheduled to return to work on December 12, 1993. She attempted to
return to work but was unable to do so.

                                            -2-
       On February 4, 1994, Dr. Feder diagnosed plaintiff with nephrotic syndrome,2
which included symptoms of weakness, edema, weight gain, lower extremity pain,
confusion, nausea, and bilateral pleural effusion3. On February 11, 1994, Dr. Feder
requested that Aetna certify plaintiff as disabled due to her nephrotic syndrome for at
least thirty days. On February 17, Dr. Lynch, a neurologist, examined plaintiff and
expressed the view that she had a kidney problem and possible collagen vascular
disease.4 On March 4, 1994, a nurse at Aetna spoke with Dr. Huseman, plaintiff's
nephrologist. The nurse's notes from the conversation indicate that plaintiff's nephrotic
syndrome had been resolved, and that Dr. Huseman would not certify her disabled
because of loss of kidney function. On March 14, 1994, Dr. Lynch reported that
plaintiff suffered from pain in her hips down to her toes, shortness of breath when
walking distances, and an inability to climb stairs. Dr. Lynch tentatively diagnosed
plaintiff with collagen vascular disease, mild peripheral neuropathy, and lupus. Dr.
Lynch requested that Aetna certify plaintiff as disabled for an additional six months,
which was done.




      2
        A condition, caused by kidney disease, marked by severe edema (swelling),
proteinuria (protein in the urine), low albumin in the blood, and a susceptibility to
infections.
      3
       The escape of fluid from the blood vessels or lymphatic system into both sides
of the membrane enveloping the lungs and lining the walls of the cavity that contains
them.
      4
       Collagen is a tough, glue-like protein that represents 30 per cent. of the body
protein and shapes the structure of tendons, bones, and connective tissues.
Malfunctioning of the immune system can affect blood vessels which in turn affects the
connective tissues.



                                           -3-
       On April 6, 1994, plaintiff saw Dr. Stechschulte, a rheumatologist, and reported
symptoms consistent with congestive heart failure, including cardiomyopathy (disease
of the heart muscle). Dr. Stechschulte informed Aetna that plaintiff suffered from
diverticulosis and a "[right] pleural effusion of uncertain etiology."5 App. at 97. Drs.
Feder and Stechschulte reported to Aetna that plaintiff had mild generalized
enlargement of the heart. App. at 98. On April 20, Dr. Meyers, a cardiologist, stated
that plaintiff had only 20 per cent. of her heart function left and requested that she be
placed on total permanent disability. Notes from June 23, 1994, suggest that plaintiff
had cardiomyopathy and autoimmune disease, which most likely caused "musculo-
skeletal pain in upper extremities & chest requiring [plaintiff] to take nitro." App. at
103. The same notes also indicated that plaintiff would not return to work because of
the multiple diagnosis and symptoms. Id.

       In January of 1995, Dr. Meyers told Aetna that plaintiff was not a candidate for
a heart transplant and could never work again. In March of 1995, plaintiff underwent
quadruple coronary artery bypass surgery. In April, Dr. Meyers reported to Dr. Feder
that plaintiff was doing "quite well," that she no longer had angina, that she had begun
to do household chores, and that she was able to walk short distances. App. at 176.
In June, Dr. Meyers informed Dr. Feder that plaintiff had "reasonably recovered from
her angina, coronary artery disease, and bypass grafting." App. at 181. He also stated
that he encouraged her to "be as active as her [condition would] allow, and to indeed
begin a regular walking program." Id. In fact, Dr. Meyers reported that plaintiff was
to begin aquatic aerobics, and that he did not need to see her again unless either she or
Dr. Feder desired. Id. On November 28, 1995, Dr. Feder informed Aetna that plaintiff
continued to suffer from collagen vascular disease. Throughout all this time (mostly
within the first 24 months after she left work), plaintiff continued to receive disability
benefits.


         5
             There was an escape of fluid into the right side of the membrane enveloping the
lungs.
                                               -4-
       On February 5, 1996, Dr. Pascuzzo, Aetna's in-house medical director,
conducted a "test change" review of plaintiff's file.6 According to Aetna's records, Dr.
Meyers was the "Disabling Physician" and Drs. Feder and Stechschulte were listed as
"Secondary Physician." On February 9, Dr. Meyer informed Aetna that he was not
currently "disabling" plaintiff, and that he had not seen her in six months. He suggested
that Aetna contact Dr. Feder. Aetna did contact Dr. Feder, who stated that plaintiff
was stable from a cardiac standpoint, and that he saw her monthly. He also stated that
she complained of pain in the extremities when walking ten feet, but that he could not
find any objective abnormalities on exam. Dr. Feder also informed Aetna that plaintiff
was still diagnosed with collagen vascular disease, but that she could do a sedentary
job that involved mostly sitting and gave her the opportunity to stand and stretch.
Aetna attempted to speak with Dr. Stechshulte, but was unable to reach him because
he was on sabbatical until June.

       On February 9, 1996, Dr. Pascuzzo recommended that plaintiff be certified as
disabled only through November of 1995, and denied certification after that date. Dr.
Pascuzzo noted that plaintiff had gone through the "test change," and that Dr. Feder had
said that she was not disabled. Aetna terminated plaintiff's benefits.

        On April 1, 1996, Dr. Nabih I. Abdou, M.D., Ph.D., a rheumatologist, wrote a
letter to Dr. Feder diagnosing plaintiff with fibromyalgia instead of collagen vascular
disease. He also stated that the fibromyalgia was very disabling to her. On April 16,
1996, Dr. Gary Beauchamp, a cardiologist, sent a letter to Dr. Feder stating:

      [O]verall [plaintiff] has good blood supply to a large portion of the heart
      muscle even though there are some obstructions and one of the vein grafts
      has occluded. I recommended continued medical therapy. . . . I do think

      6
        After the initial two years of disability, a claimant is eligible for long-term
disability benefits only if her condition precludes her from performing any occupation
for which she might be reasonably qualified.
                                           -5-
      she would qualify to begin a cardiac rehab program and we will give this
      a period of time and see if she will be able to return to the work force . .
      ..

App. at 139.

        Plaintiff appealed Aetna's decision. Accompanying her appeal was a prescription
note from Dr. Beauchamp dated April 11, 1996, which stated that plaintiff was disabled
at that point and that her evaluation was in progress. She also submitted the April 1st
letter from Dr. Abdou to Dr. Feder.

       On May 8, 1996, while plaintiff's appeal was pending, Dr. Beauchamp sent a
letter to Aetna enclosing copies of his April 16th letter sent to Dr. Feder. Dr.
Beauchamp's May 8th letter stated, "We do continue with medical therapy. [Plaintiff]
has significant coronary disease, some of which is not bypassed. I think she may very
well continue having some angina . . . She has had a host of medical problems that
should qualify her for disability." App. at 136.

       On June 28, 1996, Aetna affirmed its initial denial of benefits, stating, "there is
no medical basis for extending certification of disability. Dr. Feder feels that you can
perform the duties of a sedentary position. . . . There is no indication that you are
disabled from your position from a cardiac standpoint. While you may benefit from
rehabilitation, this can be done concurrently with work." App. at 130.

       Plaintiff filed this suit against Citibank under ERISA in District Court.7 The case
was submitted to the Court for trial on a stipulated record. Neither side offered
additional evidence. The Court held that Aetna had abused its discretion in terminating
plaintiff's benefits because there was "considerable evidence of multiple ailments being


      7
       Plaintiff also advanced state-law claims, but they were preempted under ERISA
and dismissed.
                                           -6-
suffered by [plaintiff] and the opinions of a treating cardiologist and rheumatologist that
[she] was disabled." Clapp v. Citibank, N.A. Disability Plan (501), No. 97-6019-SJ-
W-8-BB, slip. op. at 9 (W.D. Mo., June 8, 2000). Citibank appealed.

                                            II.

                                A. Standard of Review

       First, we must determine whether the District Court applied the appropriate
standard of review. The Court held that the plan gave the Claims Administrator
discretionary authority to determine benefit eligibility. The Court also found that Aetna
was the plan's Claims Administrator; therefore, the Court reviewed Aetna's decision for
an abuse of discretion. On appeal, plaintiff contends that although the Court arrived
at the correct result, it employed an incorrect standard. According to plaintiff, the
Court should have reviewed Aetna's decision de novo because (1) Aetna was not the
Claims Administrator, and (2) the plan did not grant the Claims Administrator
discretionary authority to determine benefit eligibility. In the alternative, plaintiff
argues that the Court should have applied a "sliding-scale" standard of review because
Aetna's failure to make a proper investigation amounted to a procedural irregularity
under Woo v. Deluxe Corp., 144 F.3d 1157 (8th Cir. 1998).

       Whether or not a district court applied the appropriate standard of review to an
administrator's decision under ERISA is reviewed de novo. Cash v. Wal-Mart Group
Health Plan, 107 F.3d 637, 640 (8th Cir. 1997). The Supreme Court has held that an
administrator's decision to deny benefits under an employee welfare plan is reviewed
under a deferential standard if the plan gives the "administrator or fiduciary
discretionary authority to determine eligibility for benefits or to construe the plan's
terms." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).




                                            -7-
       Here, the plan provides that the Committee8 shall be the Administrator and
Fiduciary "to control and manage the operation and administration of this Plan." App.
at 85. According to the plan, the Committee has the authority "[t]o interpret and
construe the provisions of the Plan and to finally decide any matters arising under the
Plan." Id. The plan also allows the Committee to "delegate or allocate among its
members or to others such of its authority under this Plan as it deems appropriate. Such
delegation or allocation shall be made by action of the Committee taken in accordance
with its rules at a duly convened meeting." Id. The plan further states that "[i]n
accordance with [the previous delegation provision] the Committee shall designate a
person(s) or entity(ies) to act as Claims Administrator/Fiduciary with authority to
perform some or all of the following: (A) Determine eligibility for benefits and the
amount thereof." Id.

        First, plaintiff argues that since the plan requires that the Committee appoint a
Claim Administrator "in accordance with its rules at a duly convened meeting," id. at
85, and there is no evidence in the record that Aetna was appointed in such a manner,
Aetna cannot be the Claims Administrator. Therefore, its decision is not entitled to
deference. We disagree. Whether Aetna is the Claims Administrator under the plan
is a finding of fact which we review for clear error. Duffie v. Deere & Co., 111 F.3d
70, 72 (8th Cir. 1997) (standard of review). The District Court determined that Aetna
was the Claims Administrator under the plan, Clapp, slip op. at 9, and this finding is
not clearly erroneous. The parties agreed to submit this case to the Court upon a
stipulated record. Paragraph four of the findings of fact submitted to the Court by the
parties states that "Aetna administered the Plan under an Administrative Services
contract." App. at 33. Thus, the record supports the Court's finding.




      8
       The Committee is the United States Human Resources Policy Committee of
Citibank, N.A.
                                           -8-
       Next, plaintiff argues that even if Aetna was the Claims Administrator, the plan
afforded discretion to determine benefit eligibility to the Administrator (the
Committee), not the Claims Administrator. Plaintiff asserts that since the plan does not
expressly grant the Claims Administrator "discretionary" authority to determine benefit
eligibility, the Court should not have applied a deferential standard of review. We do
not agree. The plan defines disability as "a mental or physical condition which the
Claims Administrator/Fiduciary determines." Id. at 76. We have recognized that
similar language in a benefit plan gives the administrator of the plan discretionary
authority. Finley v. Special Agents Mut. Benefit Assoc. Inc, 957 F.2d 617, 620 (8th
Cir. 1992); Bounds v. Bell Atl. Enters. Flexible Long-Term Disability Plan, 32 F.3d
337, 339 (8th Cir. 1994) (pointing to "as determined by" language in Finley as "explicit
discretion-granting language"). The plan language at issue here is sufficiently similar
to that in Finley to foreclose de novo review.

       Likewise, the Court did not err in declining to apply a "sliding-scale" standard
of review. Plaintiff argues that in light of evidence of "multiple ailments, including
substantial cardiac impairment" and the uncommon disease of fibromyalgia, along with
opinions from two treating physicians that [plaintiff] was disabled," Appellee's Brief
at 25, Aetna's failure to have either a cardiologist or rheumatologist review her claim
demonstrated improper judgment which constituted a procedural irregularity under
Woo. We think not.

       A "sliding-scale" standard of review is appropriate when there is "material,
probative evidence demonstrating that (1) a palpable conflict of interest or serious
procedural irregularity existed, which (2) caused a serious breach of the plan
administrator's fiduciary duty to [the claimant]." Barnhardt v. UNUM Life Ins. Co. of
Am., 179 F.3d 583, 588 (8th Cir. 1999); Woo, 144 F.3d at 1160. The plaintiff must
also "show that the conflict or procedural irregularity has 'some connection to the
substantive decision reached.' " Woo, 144 F.3d at 1161 (quoting Buttram v. Central
States, S.E. & S.W. Areas Health & Welfare Fund, 76 F.3d 896, 901 (8th Cir. 1996)).

                                          -9-
"A claimant must offer evidence that 'gives rise to serious doubts as to whether the
result reached was the product of an arbitrary decision or the plan administrator's whim'
for us to apply the less deferential standard." Heaser v. The Toro Co., 247 F.3d 826,
833 (8th Cir. 2001) (quoted case omitted).

       In Woo, we held that the plaintiff's evidence of a procedural irregularity was
sufficient to trigger the "sliding-scale" standard of review. Woo, 144 F.3d at 1161-62.
In that case, there was evidence from two treating physicians that the plaintiff was
disabled from scleroderma and that she had been disabled for some time. The plan
administrator used an in-house medical consultant to review the plaintiff's claim and
denied benefits. We held that the defendant "failed to use proper judgment by not
having a Scleroderma expert review [Ms. Woo's] claim." Woo, 144 F.3d at 1161. We
also held that there was a sufficient connection between this procedural irregularity and
the administrator's adverse decision because the decision " 'was reached without
reflection and judgment.' " Id. (quoting Buttram, 76 F.3d at 901).

       The case before us is distinguishable. Here, there is evidence from plaintiff's
own primary care physician that she is not disabled. Moreover, Aetna's decision to
terminate benefits was not arbitrary or reached without reflection and judgment. The
record shows that Aetna tracked plaintiff's medical history for two years, often calling
to speak directly with her doctors. Furthermore, before making its determination,
Aetna spoke with plaintiff's cardiologist, who would not "disable" her, and her primary
care physician, who, we note, had previously believed she was disabled. Aetna also
attempted to consult Dr. Stechschulte, plaintiff's rheumatologist, but was unable to
reach him. Thus, we do not think a less deferential standard of review is warranted
here, and the Court's refusal to apply the "sliding-scale" standard of review was not
error.




                                          -10-
                               B. Aetna's determination

       Next, we consider whether the District Court erred in holding that Aetna's
decision to deny plaintiff long term disability benefits under the plan was an abuse of
discretion. We think that it did.

        "We review the district court's application of the deferential standard de novo."
Cash, 107 F.3d at 641. Under the abuse of discretion standard, we look to see whether
Aetna's decision was reasonable. Ibid. In doing so, we must determine whether the
decision is supported by substantial evidence, "which is more than a scintilla, but less
than a preponderance." Sahulka v. Lucent Technologies, Inc., 206 F.3d 763, 767-68
(8th Cir. 2000) (internal quotes omitted). Aetna's decision "will be deemed reasonable
if a reasonable person could have reached a similar decision, given the evidence before
him, not that a reasonable person would have reached that decision." Cash, 107 F.3d
at 641 (internal quotes omitted). We will not disturb a decision supported by a
reasonable explanation "even though a different reasonable interpretation could have
been made." Id. We consider "[b]oth the quantity and quality of the evidence."
Fletcher-Merrit v. NorAm Energy Corp., 250 F.3d 1174, 1179 (8th Cir. 2001).

       In order to continue receiving benefits under the plan, plaintiff's disability had
to prevent her from "engaging in each and every occupation or employment for wage
or profit for which [she was] reasonably qualified by reason of education, training or
experience or may reasonably become qualified." App. at 76-77. The record
demonstrates that Aetna's decision to deny benefits to plaintiff was not unreasonable.
Dr. Huseman, plaintiff's nephrologist, indicated that her nephrotic syndrome had been
resolved. Dr. Meyers reported to Dr. Feder that plaintiff was doing "quite well," that
she no longer had angina, that she had begun to do household chores, and that she was
able to walk short distances. Dr. Meyers also informed Dr. Feder that plaintiff had
"reasonably recovered from her angina, coronary artery disease, and bypass grafting."
He also informed Dr. Feder that he encouraged plaintiff to be active and to begin a

                                          -11-
regular walking program. In fact, Dr. Meyers reported to Dr. Feder that plaintiff was
to begin aquatic aerobics, and that he did not need to see her again. Most importantly,
Dr. Feder, who had certified the plaintiff disabled on previous occasions, and to whom
Dr. Meyers deferred, specifically stated that her cardiac problems were stable. While
acknowledging that she still had collagen vascular disease, Dr. Feder reported that
plaintiff could perform sedentary work that involved mostly sitting with the ability to
stand and stretch. Aetna's conclusion that plaintiff was not permanently disabled under
the plan was not unreasonable under these facts.

        Nor do we think subsequent medical evidence submitted to Aetna with plaintiff's
appeal rendered Aetna's affirmance of the denial unreasonable. Dr. Beauchamp's May
8 letter did not definitively state that plaintiff was disabled. It said that she had a "host"
of medical problems that should qualify her for disability. There was no elaboration
on what exactly her disabling condition might be. Similarly, Dr. Abdou discounted the
diagnosis of collagen vascular disease made by Dr. Lynch, a neurologist, and agreed
with by Dr. Feder and Dr. Stechschulte, who, like Dr. Abdou, are rheumatologists.
Even if the opinions of Drs. Beauchamp and Abdou are valid assessments of plaintiff's
disability, that is not our inquiry here. Our task is to determine whether Aetna's
"decision is supported by a reasonable explanation." Cash, 107 F.3d at 641. We think
it is. In addition, we do not think it unreasonable for Aetna to credit Dr. Feder's
opinion over those of Drs. Beauchamp and Abdou. "[W]here there is a conflict of
opinion, the plan administrator does not abuse his discretion in finding that the
employee is not disabled." Donaho v.FMC Corp., 74 F.3d 894, 901 (8th Cir. 1996).
Therefore, we hold that Aetna did not abuse its discretion in denying disability benefits
to plaintiff.




                                            -12-
                                  III.

For the foregoing reasons, the judgment of the District Court is reversed.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  -13-
