                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-1068
                                    ___________

Janice Smith,                    *
                                 *
            Appellee,            * Appeal from the United States
                                 * District Court for the
     v.                          * Western District of Arkansas.
                                 *
UNUM Life Insurance Company      *
of America,                      *
                                 *
            Appellant.           *
                            ___________

                              Submitted: June 12, 2002

                                   Filed: October 2, 2002
                                    ___________

Before RILEY, BEAM, and MELLOY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       After being diagnosed with a latex allergy, Janice Smith (Smith) applied for
long-term disability benefits under an employee benefit plan administered by UNUM
Life Insurance Company of America (UNUM). UNUM began paying Smith benefits.
After twelve months of benefits, the policy's definition of "total disability" changed,
requiring UNUM to pay benefits only if Smith is unable to work in any gainful
occupation for which she was qualified by education, training or experience. UNUM
determined Smith was not totally disabled from any gainful occupation and
discontinued benefits. Smith filed a lawsuit pursuant to the Employees Retirement
Income Security Act of 1974 (ERISA). On judicial review, the district court
determined UNUM abused its discretion in terminating Smith's benefits. Because we
conclude UNUM's decision to discontinue Smith's disability benefits was supported
by substantial evidence, we reverse.

I.     BACKGROUND
       Smith is a registered nurse. During 1997, she worked as an infection
control/employee health nurse at the Northwest Arkansas Rehabilitation Hospital in
Fayetteville, Arkansas. In May 1997, Dr. Laura Koehn (Dr. Koehn), a board certified
allergist/immunologist, diagnosed Smith with a Class IV RAST allergy to latex. On
November 4, 1997, Smith's employer suspended her for poor work performance, and
on November 11, 1997, Smith was terminated. Smith attributed her work deficiency
to her latex hypersensitivity.

       On November 7, 1997, Smith applied for her employer's long-term disability
benefits. Under the terms of the disability policy with UNUM, Smith was eligible to
receive benefits for twelve months if UNUM determined she was disabled from
performing the "material and substantial duties" of her "regular occupation." After
the twelve-month period, Smith would continue receiving benefits only if UNUM
determined that "due to the same sickness or injury" Smith was unable to perform the
"duties of any gainful occupation" for which she is "reasonably fitted by education,
training, or experience." The policy also provided that UNUM would terminate
benefits after twelve months of payments, upon a finding that Smith is "able to work
in any gainful occupation on a part-time basis," but chooses not to work. Part-time
basis is defined as "the ability to work and earn 20% or more of your indexed
monthly earnings."




                                        -2-
        In support of her disability claim, Smith submitted statements from seven
treating physicians. All seven physicians diagnosed Smith as having a latex allergy
and advised Smith to limit, and where possible, avoid exposure to latex. A family
practitioner warned that Smith is "at a high risk for life threatening reaction to latex."
Two other treating physicians concluded Smith should not work in an environment
containing latex. One of these treating physicians discussed with Smith the possible
necessity of changing occupations to avoid latex exposure.

       Two of Smith's treating physicians imposed further work restrictions. Dr.
Koehn advised that Smith "should avoid all latex exposure or as much as possible –
should not work in medical or paramedical profession due to presence of latex."
However, because "latex is ubiquitous in our environment," the allergist noted it
would "be impossible to find [a] latex free work environment" for Smith, and
concluded Smith "probably will not be able to return to work" as a result of her latex
sensitivity. A primary care physician, Dr. Doty Murphy (Dr. Murphy), noted that
Smith has a "severe latex sensitivity" which "render[s] her incapable of any work
activity." Dr. Murphy explained Smith's allergy was more than an inconvenience and
"could result in her death, hospitalization, and/or prolonged aggravation of her
disability." Dr. Murphy did acknowledge that when Smith is "not exposed to latex,
she is able to function in her home and perform minimal activities." Neither Dr.
Koehn nor Dr. Murphy addressed the possibility of Smith performing home-based
employment.

        In August 1998, UNUM approved Smith's claim for disability benefits based
on its determination that Smith was disabled from performing her regular occupation,
and UNUM paid benefits retroactively from February 2, 1998. In May 1999,UNUM
commissioned Dr. Michael Joseph (Dr. Joseph), a board certified allergist and
immunologist, to perform an independent medical examination (IME) of Smith.
When UNUM scheduled the IME, Dr. Koehn prescribed that the IME should be
conducted in a latex-free environment. When Smith arrived at Dr. Joseph's office for

                                           -3-
the IME, she discovered that not one of the examination rooms was latex free. Dr.
Joseph used a pair of vinyl gloves borrowed from Smith to perform the IME. Despite
her exposure to latex in the medical office, Smith suffered no immediate allergic
reaction during the IME.

       Due to Smith's concerns about latex exposure, Dr. Joseph reported that his
examination of her was "somewhat limited," although he did not identify the
limitations on his examination. Smith reported "a history of intermittent rash with
shortness of breath when exposed to latex," and also noted multiple food allergies.
Dr. Joseph observed that Smith's heart and lungs were unremarkable and that her skin
did not reveal any hives or swelling. Dr. Joseph performed a RAST test on Smith that
revealed a Class IV IGE reaction to latex which he interpreted as being "consistent
with moderate hypersensitivity to latex antigens."

       Following his examination and review of Smith's medical history, Dr. Joseph
opined that Smith has a "history of asthma and possible anaphylaxis and contact
urticaria when exposed to latex in the work area." Consistent with the opinions of
Smith's treating physicians, Dr. Joseph believed Smith "should be restricted from
exposure to latex." However, Dr. Joseph felt that many of her previous symptoms of
asthma may not be related to latex exposure because the delayed reactions would not
be consistent with latex hypersensitivity. He concluded that Smith should be able to
continue her occupation as an employee health nurse in a latex-free clinic or hospital
environment. Alternatively, he wrote, Smith "can work in any area where latex use
is limited." He further suggested that Smith's asthma could be treated more
aggressively.

       The day after the IME, Smith called UNUM to complain about Dr. Joseph.
Specifically, Smith complained that despite Dr. Koehn's medical directive that Smith
be protected against latex exposure, Dr. Joseph exposed her to latex, failed to listen
to her lungs, and told her he had seen one person with a latex allergy in an emergency

                                         -4-
room. Smith also complained she was not feeling good because of the latex exposure.
Dr. Koehn called UNUM to advise she had prescribed Smith Prednisone for a short
time because of her delayed reaction to the latex exposure during the IME.
According to Dr. Koehn, Smith was doing better, although her blood sugars were out
of control due to the Prednisone medication. Dr. Koehn also reported contacting Dr.
Joseph to inquire about his clinical experience in treating latex allergy and he told her
he had read text books on the subject.

       In August 1999, UNUM commissioned a vocational consultant to perform a
transferable skills analysis on Smith. Using the residual functional capacities
outlined in Dr. Joseph's written report, the vocational consultant determined Smith's
skills were readily transferable to positions in risk management, healthcare
administration, and social or medical services. He determined employment in office
settings, as opposed to medical facilities and laboratories, would be consistent with
the work parameters outlined in Dr. Joseph's IME. The consultant also concluded
Smith was able "to assume full time work in a non-medical setting where use of latex,
particularly medical latex products such as gloves are not in use."

       UNUM also referred Smith's file to another vocational expert to address
specific issues pertaining to the presence of latex in commercial offices and office
equipment. In his vocational review, this expert opined that latex office sources can
be replaced with non-latex items and that non-latex gloves provided added protection
against latex exposure. He reported that automobiles and office settings offer similar
types of latex exposure and reasoned that a person who could operate an automobile
would be able to function in an office setting with the use of non-latex items and non-
latex gloves. Finally, this expert reported that non-latex peripheral computer
equipment, such as a mouse pad, keyboard and calculator, is available and is known
to provide "effective barrier protection for persons with latex allergy," although he
was not aware of any latex-free computers.



                                          -5-
       Following the IME and vocational consultations, Francis A. Bellino, M.D. (Dr.
Bellino), UNUM's reviewing physician, conducted two medical reviews of Smith's
claim. In the first medical review dated August 11, 1999, Dr. Bellino stated that
Smith's medical records documented "a significant, moderate to severe, allergy to
latex." Because Dr. Bellino determined Smith had continued working for nearly three
years following a possible anaphylactic reaction to latex in January 1995, he
concluded Dr. Joseph's recommendation restricting Smith to working areas with
limited exposure to latex was valid.

       In October 1999, Dr. Bellino conducted a second medical review in which he
documented pertinent parts of a telephone conversation with Dr. Koehn. Dr. Bellino
inquired whether Smith could work in the latex-free environment of her own home1
performing either remote electronic nurse triage or medical file reviews. Dr. Bellino
recorded Dr. Koehn's response to be that Smith could "probably function on a four
to six hour basis doing something in her home . . . such as file reviews." Dr. Bellino
also recorded information relayed to a UNUM customer care services representative
that Smith had taken a four-hour car ride without experiencing an allergic reaction.
Based on this information, Dr. Bellino believed that it is "extremely likely" Smith
"would be able to function in a typical office setting despite her latex allergy."
However, because of Dr. Koehn's insistence that Smith could not function outside her
home, Dr. Bellino suggested that a work trial in Smith's home would be "a medically
appropriate step," and documented that Dr. Koehn was disposed to consider home-
based work.

      On October 19, 1999, Dr. Bellino wrote to Dr. Koehn, addressing the
discrepancies between her medical findings and those of Dr. Joseph. Dr. Bellino
wrote Smith is "capable of far more than the level of the restrictions and limitations"


      1
       At the suggestion of her allergist, Smith has moved to rural Oklahoma where
she lives a secluded life to avoid exposure to latex.

                                         -6-
placed on her by Dr. Koehn. Dr. Bellino based his opinion on Dr. Koehn's statement
that Smith could enter her office without significant consequences; Smith's ability to
be inside a car containing latex of a non-particulate nature without experiencing
serious reactions; and Dr. Joseph's IME opinion. Dr. Bellino documented his
recommendation that Smith could work eight hours per day as a telephone triage
nurse and file reviewer, as well as Dr. Koehn's response that four to six hours a day
was more realistic. Dr. Bellino asked Dr. Koehn to sign the letter if it accurately
reflected the substance of their telephone conversation and invited any corrections.
Dr. Koehn signed, dated, and returned the letter, adding a handwritten notation:
"Mrs. Smith has had problems when taking long trips in her car (though not every
time) & in social situations (wedding of a family member)."

       On February 21, 2000, UNUM denied Smith's long-term disability claim based
on its findings that Smith's occupation as an employee health nurse did not require
exposure to latex and its determination that Smith could perform other gainful
occupations as outlined in the vocational consultation. Smith appealed UNUM's
denial of benefits and exhausted her administrative remedies. She then filed this
lawsuit.

       The district court reversed UNUM's decision to discontinue Smith's long-term
disability benefits. In an extensive and detailed opinion, the district court concluded
UNUM's denial of long-term benefits was not supported by substantial evidence and
was thus unreasonable. Reviewing the evidence, the court stated "it cannot be
realistically argued that employment opportunities exist for an applicant who would
require – as necessary accommodations if hired – that the business replace every
pencil, rubber band, stamp pad, envelope, mouse pad, calculator, keyboard and,
possibly, even be required to move its offices and retrofit its ventilation system."
The court further found no evidence either contradicting the claimant's proof that
paper and ink contain latex or establishing she could do paperwork at home without
being exposed to photocopies and ink. Considering the life-threatening nature of

                                         -7-
Smith's condition, the court characterized UNUM's decision to deny benefits as
"extraordinarily imprudent."

       On appeal, UNUM claims the district court erred in ruling that no substantial
evidence existed to support its determination that Smith was not disabled from any
gainful occupation. UNUM claims the plan administrator did not abuse its discretion
by relying on medical opinions rendered by an independent medical examiner and a
reviewing physician, as well as two vocational consultants, rather than the opinions
rendered by Dr. Koehn and Dr. Murphy, two of Smith's treating physicians. UNUM
contends an IME opinion constitutes substantial evidence as a matter of law.

II.    DISCUSSION
       A.     Standard of Review
       ERISA expressly provides for judicial review of disability benefit denial
decisions. The Supreme Court has recognized that a deferential standard of review
is appropriate under 29 U.S.C. § 1132(a)(1)(B), if "the benefit plan gives the
administrator or fiduciary discretionary authority to determine eligibility for benefits
or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989). The parties agree that the deferential abuse of discretion standard
was the proper standard of review for the district court to analyze UNUM's fact-based
disability determination. We review de novo the district court's application of this
deferential standard of review. Donatelli v. Home Ins. Co., 992 F.2d 763, 765 n.2
(8th Cir. 1993).

       In applying an abuse of discretion standard, the reviewing court must affirm
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." Ferrari
v. Teachers Ins. and Annuity Ass'n, 278 F.3d 801, 807 (8th Cir. 2002) (internal
citation omitted). A reasonable decision is one based on substantial evidence that
was actually before the plan administrator. See Donaho v. FMC Corp., 74 F.3d 894,

                                          -8-
899 (8th Cir. 1996). Substantial evidence is "more than a scintilla but less than a
preponderance." Schatz v. Mutual of Omaha Ins. Co., 220 F.3d 944, 949 (8th Cir.
2000).

      A reviewing court may consider both the quantity and quality of evidence
before a plan administrator. Donaho, 74 F.3d at 900. When a conflict in medical
opinions exists, the plan administrator does not abuse his discretion by adopting one
opinion, if reasonable, and finding that the employee is not disabled. See id. at 901.
A court should be hesitant to interfere with the administration of an ERISA plan.

       B.    Deferential Review
       The administrative record reveals that UNUM based its decision to discontinue
benefits on: (1) an IME of Smith by a board-certified allergist/immunologist who
opined that Smith should likely be able to continue her regular occupation in a latex-
free environment or could be gainfully employed with a medium workload in an
environment where exposure to latex was limited; (2) a reviewing physician who
performed two medical file reviews and concluded the IME opinion was valid and
that Smith could, at a minimum, engage in part-time, home-based employment; (3)
a transferable skills analyst who concluded Smith has "transferable skills and abilities
to assume full time work in a non-medical setting where use of latex, particularly
medical latex products such as gloves are not in use" ; and (4) a vocational consultant
review that concluded reducing latex exposure in ordinary office settings coupled
with substitution of non-latex office equipment and the use of non latex gloves would
allow a latex allergic person to function in an office setting.

        The medical and vocational opinions on which UNUM relied were not
unreasonable or overwhelmed by contrary evidence. All the medical opinions,
including those rendered by an independent examining physician and UNUM's
reviewing physician, diagnosed Smith with a significant latex allergy which requires
her to avoid exposure to latex, especially in hospital and clinical environments. To

                                          -9-
the extent the medical opinions conflicted, the disagreement concerned whether
Smith's latex allergy causes her to be totally disabled, and thereby unable to perform
any gainful employment. On this issue, two of Smith's seven treating physicians
believed that Smith's latex allergy precluded her from working in any occupation.
Although the medical opinions of Dr. Joseph and Dr. Bellino conflicted with the
medical opinions rendered by Dr. Koehn and Dr. Murphy on Smith's ability to work,
the opinion of Dr. Joseph and Dr. Bellino were not materially inconsistent with
medical opinions rendered by Smith's other treating physicians, none of whom
restricted Smith from working either in a commercial office environment or in her
home.

       UNUM was not obliged to defer to Dr. Koehn's opinions or to the opinions of
Smith's other treating physicians. Although Donaho recognizes that the opinion of
a reviewing physician is generally accorded less deference than the opinion of a
treating physician in disability cases under ERISA, 74 F.3d at 901, the same does not
hold true for the opinion of an independent examining physician. Delta Family-Care
Disability & Survivorship Plan v. Marshall, 258 F.3d 834, 842 (8th Cir. 2001). A
treating physician's opinion does "not automatically control, since the record must be
evaluated as a whole." Fletcher-Merritt v. Noram Energy Corp., 250 F.3d 1174, 1180
n.3 (8th Cir. 2001) (quoting Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995)).
UNUM's reliance on an independent examining physician's opinion rather than on
two treating physicians' opinions is not proof of unreasonable or imprudent conduct.
See Coker v. Metro. Life Ins. Co., 281 F.3d 793, 798-99 (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." Donaho,
74 F.3d at 901. If a plan administrator is dissatisfied with the medical evidence
submitted by an employee's treating physician(s), it may require the employee to
undergo an IME and may discount a treating physician's opinion "entirely in favor of



                                        -10-
a contrary opinion produced by the independent examiner." House v. Paul Revere
Life Ins. Co., 241 F.3d 1045,1048 (8th Cir. 2001).

       UNUM argues our decisions in Donaho and House propose an IME opinion
constitutes substantial evidence as a matter of law. At oral argument, Smith conceded
a plan administrator is entitled to rely on an IME opinion. However, she contends an
exception to the general rule operates in this case because the examining physician
performed an incomplete IME, misinterpreted the results of a RAST test, relied on
textbooks, and lacked requisite experience with latex hypersensitivity. Smith argues
these factors render the examining physician's opinion unreasonable.

      The administrative record does not support Smith's contentions. Although the
record reveals that Smith and Dr. Koehn complained to UNUM personnel about the
examination and Dr. Joseph's experience with latex hypersensitivity, neither Smith
nor Dr. Koehn challenged his qualifications to perform an IME, formally objected to
the IME, or demanded that UNUM commission a second IME before making a
determination on Smith's claim. Nor did Smith in her administrative appeals
challenge the validity of the IME or the credentials of Dr. Joseph.

      The administrative record reveals that Dr. Joseph rendered essentially the same
medical opinion as did the majority of Smith's treating physicians. Even Dr. Koehn,
on whose opinion Smith principally relies, acknowledged Smith could "probably
function on a four to six hour basis doing something in her home . . . such as file
reviews," which adds further credibility to Dr. Joseph's opinion. Absent evidence in
the administrative record indicating specific deficiencies in either the IME or Dr.
Joseph's credentials, we cannot conclude his medical opinion fails to constitute
substantial evidence upon which UNUM could reasonably rely to deny Smith's claim.

     We acknowledge this is a close case, and we respect the district court's opinion.
The administrative record contains evidence both for and against Smith's claim. See

                                        -11-
Delta Family-Care Disability & Survivorship Plan, 258 F.3d at 842. However, based
on a deferential standard of review, we conclude substantial evidence supports
UNUM's decision to discontinue Smith's benefits.

        UNUM sought input from Dr. Koehn and offered her the opportunity to
respond to the medical opinions of Dr. Joseph and Dr. Bellino. UNUM weighed all
the evidence presented. Reasonable minds could accept Dr. Joseph's and Dr.
Bellino's conclusions that Smith could be gainfully employed in either a commercial
office or a home-based setting. Certainly, reasonable minds could also disagree with
their conclusions. Under our precedent, UNUM did not abuse its discretion in
determining that Smith was not totally disabled from performing any gainful
occupation. House, 241 F.3d at 1048; Donaho, 74 F.3d at 901.

III.   CONCLUSION
       Having determined that UNUM's decision to terminate Smith's long-term
disability benefits was supported by substantial evidence, we vacate the judgment of
the district court and direct that judgment be entered in favor of UNUM. We further
vacate the district court's award of attorney fees to Smith.

       A true copy.

             Attest:

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




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