                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-1431


EVA SPRY,

                  Plaintiff - Appellee,

            v.

EATON CORPORATION LONG TERM DISABILITY PLAN,

                  Defendant – Appellant,

            and

BROADSPIRE SERVICES INCORPORATED,

                  Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Margaret B. Seymour, District
Judge. (2:07-cv-00156-MBS)


Argued:   March 25, 2009                     Decided:   June 2, 2009


Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


ARGUED: Anna K. Raske, BENESCH, FRIEDLANDER, COPLAN & ARONOFF,
LLP, Cleveland, Ohio, for Appellant.      Robert Edward Hoskins,
FOSTER LAW FIRM, LLP, Greenville, South Carolina, for Appellee.
ON BRIEF: Jeffrey D. Zimon, BENESCH, FRIEDLANDER, COPLAN &
ARONOFF, LLP, Cleveland, Ohio, for Appellant.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Eaton Corporation Long Term Disability Plan (“the Plan”)

appeals       a    district       court   judgment      against    it   in     an     action

brought by Eva Spry alleging that the Plan wrongly terminated

her long-term disability benefits.                      We reverse and remand for

entry of judgment in favor of the Plan.



                                              I.

     Eaton Corporation is a multi-national company that offers

both short-term and long-term disability benefits for many of

its employees.              It funds these plans and helps to administer

them.

        To    be     eligible     to    receive    long-term      disability         (“LTD”)

benefits       under     the      Plan,   a   participant      must     show    that     she

“cannot       work    due    to    an   illness    or   injury,”      that     she    has   a

“covered disability,” and that she is “under the continuous care

of a physician who verifies, to the satisfaction of the Claims

Administrator, that [she is] totally disabled.”                         J.A. 158.        The

Claims Administrator is a “third party administrator retained by

Eaton to process and review disability claims and to rule on the

first        level    appeals      from    denials      of   claims.”          J.A.     136.

Broadspire Services Incorporated (“Broadspire”) was the Plan’s

Claims Administrator.               The Plan also allows for a final appeal

to Eaton as the Plan Administrator.                     For ease of reference, we

                                              3
will       refer   to   the     Claims       Administrator   and     the    Plan

Administrator collectively as “the Administrator.”

       As is relevant here, a claimant is considered to have a

“covered disability,” if she is “totally and continuously unable

to engage in any occupation or perform any work for compensation

or profit for which [she is], or may become, reasonably well

fitted by reason of education, training or experience.”                     J.A.

158.       To determine whether a claimant has a covered disability,

the Administrator evaluates objective evidence of the claimed

disability, including

       •      Physical    examination           findings     (functional
              impairments/capacity);

       •      Diagnostic tests results/imaging studies;

       •      Diagnosis;

       •      X-ray results;

       •      Observation   of   anatomical,   physiological           or
              psychological abnormalities; and

       •      Medications and/or treatment plan.

J.A. 162.      For a claim that has been approved, the Plan requires

continued periodic certification of the disability, which can

include      independent      medical    examinations,     medical   file    and

record reviews, and functional capacity tests.

       Spry is a 62-year-old woman who resides in Manning, South

Carolina.       She began working for Eaton in 1980 and was a Plan

participant.       In early 2000, she began complaining of numbness


                                         4
in her hands.        According to her primary care physician, Dr.

Joseph   Williams,    an    MRI   of    her    cervical    spine   revealed   the

following:

     Markedly severe spinal stenosis focally at C3-4 due to
     large osteophytes compressing the cervical cord as
     well as an accompanying disc protrusion that protrudes
     along with the osteophytes. Moderate to severe spinal
     stenosis also evident at C4-5 without disc herniation.
     Herniated disc is also present at C6-7 postero-
     rightward and impinging upon the exiting nerve root on
     the right and effacing the neural foramen.

J.A. 516.     Spry consequently ceased working on March 20, 2000,

and underwent surgery.        Although she felt better afterwards, she

was not ready to return to work by July 2000.                  Because her six-

month waiting period for LTD benefits was coming to an end, she

submitted an LTD benefits claim.

     In support of her claim, Dr. Joseph Williams and her other

primary care physician, Dr. Brenda Williams, signed statements

attesting    that    Spry    suffered        from   cervical    myelopathy    and

cervical     spondylosis.         The    statements       reported   that     Spry

suffered weakness in her arms and shoulders, and hand tremors,

and that she had difficulty walking.                 They affirmed that Spry

was “[t]otally and [p]ermanently [d]isabled” and could not work

even with restrictions.       J.A. 588-89.

     On August 23, 2000, her LTD benefits claim was approved.

In late 2000, Spry also was awarded Social Security disability




                                         5
income benefits, having been determined by the government to be

disabled as of March 17, 2000.

     After the Administrator approved Spry’s LTD benefits claim,

her eligibility to continue to receive LTD benefits was reviewed

periodically,       beginning   in    2002.       For    the   first    review,     Dr.

Brenda     Williams    opined       that   Spry     continued      to   be     totally

disabled and noted that Spry was “chronically in pain in the

shoulders, arms, hands, [and] knees and is significantly anxious

and depressed.”        J.A. 537.       The review resulted in Spry being

approved for continued benefits.

     The next review occurred in 2004 and also resulted in the

continuation    of    Spry’s    benefits.         That    review    considered       an

opinion of Dr. Joseph Williams that Spry continued to be unable

to work primarily as a result of her cervical problems.                             He

noted that her diabetes also contributed to her disability.                         He

reported limited motion in her neck and shoulders, decreased

strength in her right hand, and pain in her shoulder and neck.

He also noted that she suffered from headaches and balancing

problems      and      from     a      “[m]arked         limitation”         from     a

“[m]ental/[n]ervous [i]mpairment.”             J.A. 543.

    The      Administrator      sent       Spry’s       records    to    two     other

physicians.     Dr. Tamara Bowman, an internal medicine specialist,

concluded, “[f]rom an internal medicine standpoint, there are

insufficient objective clinical findings documented to support a

                                           6
level of functional impairment that would render [Spry] unable

to   perform     any    occupation.”         J.A.      566.    However,      Dr.    Jaime

Wancier, a neurologist, found that Spry was totally disabled as

of May 5, 2004.         He stated:

      The presence of continued complaints of pain in the
      neck down into the arms, decreased strength in the
      upper extremities, etc. are most likely related to
      chronic changes within the spinal cord secondary to
      the severe stenosis that the claimant had as reported
      in all of the x-rays.      Most likely, the claimant
      sustained chronic changes within the spinal cord
      secondary to vascular compression.  These changes are
      most likely chronic in nature, irreversible and most
      likely, permanent.

J.A. 563.

      The    next      review    of    Spry’s     claim    began     in   2005.      Spry

submitted        a    detailed        statement       documenting     her     continued

problems as well as a statement from Dr. Joseph Williams noting

his continued view that she was totally disabled.                         Dr. Williams

also submitted his medical records through June 2005.

      As    with      the   prior     review,     the     Administrator      asked    Dr.

Bowman to review Spry’s records.                      Dr. Bowman concluded again

that Spry was not totally disabled from an internal medicine

standpoint and also noted that in the records she was provided

“there      is   no    documentation        of    a     comprehensive       neurologic,

musculoskeletal,         or   joint     examination.”         J.A.    656.     On    that

basis, Dr. Bowman stated that she could not “comment on any




                                            7
restrictions        or       limitations      based        on   [Spry’s]      history     of

cervical myelopathy.”             J.A. 656.

       The    Administrator           then   referred      Spry   to   neurologist       Dr.

Charles Jervey on October 11, 2005, for an independent medical

examination (IME).             Dr. Jervey examined Spry and concluded that

her surgery had corrected her cervical myelopathy.                              He noted

that    her    postoperative            neurosurgeon’s          exam   was    “relatively

normal . . . except for residual mild weakness which according

to [the neurosurgeon’s] report was much improved.”                             J.A. 671.

Dr. Jervey observed that Spry did not put forth full effort in

the strength tests he administered.                    He stated that although she

continued      to    express          “subjective       complaints,”         because     his

“objective findings [we]re relatively limited and seem[ed] to

[be]    primarily        .    .   .    effort       related,”     he   was    “unable     to

determine precisely how much, if any, disability exists.”                               J.A.

671.    He continued, “My best opinion, however, is that she does

have the strength to return to work.                    The primary issue would be

one of pain and again that is a subjective complaint. . . .                               I

would think the patient could return to light duty work.”                               J.A.

671.

       Accepting     Dr.       Bowman’s      and     Dr.    Jervey’s     opinions,       the

Administrator        had          a     vocational         specialist        prepare      an

Employability Assessment Report (“EAR”) based on the functional

limitations derived from those opinions.                          After speaking with

                                                8
Spry     concerning     her        vocational     background,         interests,           and

functioning level, the vocational specialist concluded that Spry

was employable and identified several sedentary jobs that she

could perform.         A subsequent Labor Market Survey (“LMS”) found

that several jobs that she could perform existed in Manning and

surrounding areas.          Accordingly, Spry’s benefits were terminated

on January 4, 2006, effective February 1, 2006.

       Spry    appealed      the     decision.          She     hired    counsel,          who

submitted     results       from    a   cervical       myelogram      and      a    CT   scan

conducted on November 1, 2005, as well as physicians’ reports

from spinal surgeon Dr. Rakesh P. Chokshi--to whom Dr. Joseph

Williams had referred Spry--and radiologist Scott H. Allen.                                Dr.

Chokshi’s October 24, 2005, report notes that Spry complained of

significant pain but demonstrated motor strength of “5/5 in all

the major muscle groups in the upper extremities,” with “normal

and    symmetrical”     deep       tendon   reflexes,         and   “lumbar        range    of

motion      [that]    was    reasonably         well    preserved.”            J.A.      860.

Reviewing Spry’s November 1 tests, Dr. Chokshi noted that they

did “not show any significant stenosis.”                        J.A. 861.           He also

opined that Spry did not need any further surgery and advised

her    to   stay     active,   including        by     doing    her     neck       and   back

exercises.      Dr. Allen, reviewing the same tests, concluded that

Spry had a “mild degree of canal stenosis through the area of

fusion [that] appears to be due to diffuse bulge of the disc

                                            9
along with spondylosis.”               J.A. 864.        His report added, “There is

facet     arthritis       as     well.      There       is   no    evidence        of    disc

herniation and there does not appear to be significant foraminal

narrowing.”      J.A. 864.

       Spry also submitted updated medical records from Dr. Joseph

Williams,      including         the     report     from     a    January        11,    2006,

neurological exam.              Dr. Williams noted that Spry still had “a

residual right cervical radiculopathy” and “some myelopathy” and

that she had been advised to undergo more surgery.                                J.A. 471.

Dr. Williams reported that his exam revealed strength of only “3

out of 5 on the right side” and unsteadiness on her feet and

left leg.        J.A. 471.         He stated that Spry suffered from the

following ailments:             “[c]ervical disc disease S/P cervical disc

surgery      with    residual      weakness        in    right     arm,”    “[h]erniated

lumbar    disc      or   left    lumbar    radiculopathy,”             diabetes    mellitus

with     “diabetic        neuropathy,”            hypertension,          hyperlipidemia,

history of “depression and chronic pain syndrome,” and history

of “gouty arthritis involving left great toe.”                         J.A. 471.

       The   Administrator         asked    neurologist          Dr.    Vaughn    Cohan   to

review Spry’s records.                 Dr. Vaughn concluded that the records

did not indicate that Spry was totally disabled and explained

why he disagreed with Dr. Wancier and Dr. Joseph Williams.                                The

Administrator        subsequently         upheld     its     decision      to     terminate

Spry’s benefits, notifying her by a letter dated July 13, 2006.

                                            10
       Spry      then      initiated         a     final      appeal,          prompting    the

Administrator       to     seek    additional         physicians          to   review    Spry’s

records.          Osteopath       Dr.   Michael           Goldman    concluded      that    the

records      contained      no    evidence        that     Spry     was    unable   to     work.

Psychologist Dr. Lawrence Burnstein found no documentation that

Spry       was   totally    disabled         from     a    psychological         perspective.

Internist Dr. Dennis Mazal determined that no internal medical

issues would prevent Spry from working.                             And neurologist Dr.

Henry       Spira   found     that      no       neurological       condition       precluded

employment for Spry.              On September 20, 2006, the Administrator

also requested neurological and orthopedic opinions from Medical

Review       Institute      of    America,          Inc.     (“MRIoA”).           Both     MRIoA

reviewers concluded that there was no documentation indicating

that Spry could not work.                By a letter dated November 3, 2006,

the Administrator notified Spry that her final appeal had been

denied.

       Spry subsequently brought suit in federal district court

under 29 U.S.C.A. § 1132(a)(1)(B) (West 2009) of the Employee

Retirement Income Security Act of 1974 (“ERISA”), claiming that

her LTD benefits had been improperly terminated. 1




       1
        Although Broadspire and the Plan were both originally
named as defendants, Broadspire was later dismissed from the
action.



                                                 11
      Deciding the case based on the administrative record, the

parties’    legal     memoranda,      and     counsels’    oral    arguments,     the

district court granted judgment to Spry.                   The court found that

because     the     Plan   grants      the       Administrator      discretion     to

interpret    and      apply    the     Plan      provisions,      the     termination

decision would be reviewed for abuse of discretion.                       At the time

of   the   district    court’s       decision,     proof   of     facts    warranting

imputation of improper motives to a plan administrator required

application of a modified-abuse-of-discretion standard, thereby

reducing    the    deference    given       to   the   benefits    decision.      See

Colucci v. Agfa Corp. Severance Pay Plan, 431 F.3d 170, 179-80

(4th Cir. 2005); Johannssen v. District No. 1-Pac. Coast Dist.,

MEBA Pension Plan, 292 F.3d 159, 176 (4th Cir. 2002).                        Although

Eaton funds, sponsors, and administers the Plan, Spry conceded

that there was no basis for reducing the deference afforded to

the Plan’s decision.           The district court therefore concluded

that it would defer to the Administrator’s decision so long as

it was reasonable and supported by substantial evidence.                          The

district court found, however, that the decision did not meet

that standard, for reasons that we will discuss.                           The court

therefore issued a judgment requiring the Plan to pay Spry LTD

benefits.




                                         12
                                             II.

       Since the district court issued its decision, the Supreme

Court decided Metropolitan Life Insurance Co. v. Glenn, 128 S.

Ct. 2343 (2008), altering the effect of a conflict of interest

on the applicable standard of review regarding an ERISA benefits

denial.          Under Glenn, proof of facts warranting imputation of

improper motives to a plan administrator still aids claimants

challenging        adverse     benefits      decisions;       however,   the    form   of

that       aid   has   changed.       Such    evidence    no    longer   reduces       the

deference the district court must give the benefits decision.

See Champion v. Black & Decker (U.S.) Inc., 550 F.3d 353, 358

(4th Cir. 2008).             Rather, a simple abuse-of-discretion standard

is applied and the conflict of interest is taken into account as

a   factor        affecting        whether    the     administrator       abused       its

discretion. 2          See   id.      Such    a    conflict    is   “‘more     important




       2
       We have identified eight nonexclusive factors that a court
may consider:

     (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
(Continued)
                                             13
(perhaps   of   great       importance)    where       circumstances     suggest   a

higher likelihood that it affected the benefits decision.’”                    Id.

(quoting Glenn, 128 S. Ct. at 2351).

     The Plan maintains that the district court erred in failing

to uphold the termination of Spry’s benefits.                     We review the

district court’s decision de novo, utilizing the same standard

applicable to the district court’s review.                      See id. at 359;

Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315,

321 (4th Cir. 2008).         We conclude that the decision to terminate

Spry’s benefits was within the Administrator’s discretion. 3

     Clearly,        the    evidence      before       the   Administrator     was

conflicting     on    the    question     of     whether     objective    evidence

demonstrated    that       Spry   was   unable    to    work.    Resolving    this

conflict was the Administrator’s responsibility, and there was

nothing inherently unreasonable in the decision not to adopt the

opinions of Spry’s primary care physicians.                  See Black & Decker



     fiduciary's motives and any conflict of interest it
     may have.

Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan,
201 F.3d 335, 342-43 (4th Cir. 2000).
     3
       On appeal to us, Spry, for the first time, raises a number
of arguments that the Administrator manipulated the decision
process in an attempt to terminate Spry’s benefits. However, in
light of Spry’s concession in the district court that there was
no basis for reducing the deference afforded to the Plan’s
decision, Spry has waived those arguments.



                                         14
Disability Plan v. Nord, 538 U.S. 822, 831-34 (2003) (holding

that ERISA does not require plan administrators to give special

deference       to     treating        physicians’         opinions).           However,      the

district court provided several reasons for concluding that the

termination of Spry’s benefits was unreasonable, and we will

address      those     seriatim,        along    with       some    arguments      that       Spry

advances.

       The     district      court      first        concluded      that       there    was    no

substantial       evidence        of    any   improvement          or    change    in    Spry’s

condition after May 5, 2004—the date Spry was last determined by

the    Administrator         to    be    unable       to    work—and       that    there      was

substantial evidence that Spry had been unable to work prior to

that    date.         Indeed,     the    district         court    also    determined         that

since there was no evidence that Spry’s condition had changed,

the    Plan     had    no    basis      for     not       continuing      to    rely    on    Dr.

Wancier’s       opinion.          We     conclude         that     the    district      court’s

premise that no new evidence showed significant improvement in

Spry’s condition was incorrect.                      Such evidence included (1) Dr.

Chokshi’s       report      concerning        his     October       2005    examination         in

which     he    observed        motor     strength          of    5/5,     reasonably         well

preserved       lumbar      strength,      and       no    need    for    further      surgical

intervention; (2) Dr. Jervey’s October 2005 IME concluding that

Spry was capable of light duty work; and (3) the November 1,

2005 cervical myelogram and CT scan showing only a mild degree

                                                15
of   stenosis,   no   disc    herniation,      no     cord    deformity,   and    no

foraminal narrowing.         The determination that Spry was no longer

eligible for benefits was also supported by the medical file

reviews of Drs. Cohan, Goldman, Spira, Mazal, and Burnstein.

      The district court also concluded that the Administrator’s

decision to terminate Spry’s benefits “did not give adequate

consideration    to   the    fact   that     [Spry]     had   been   approved    for

Social Security benefits” in November 2000.                   J.A. 1053.     There

is no basis for that conclusion, however.                     The Plan’s letter

denying Spry’s appeal specifically noted that the Administrator

had considered the Social Security decision.                    The government’s

determination that Spry was disabled in November 2000 certainly

did not require the Administrator to decide, based on updated

information and additional medical opinions, that Spry remained

unable to work more than five years later.

      The district court finally concluded that the Plan “relied

upon equivocal opinions in denying benefits.”                   J.A. 1053.       The

district court first noted that Dr. Bowman, an internal medical

specialist, opined only that Spry was not disabled based upon

her internal medical conditions but did not give an opinion on

Spry’s neurologic condition.            This criticism misses the mark,

however, as there is no indication that the Administrator relied

on Dr. Bowman’s opinion for any neurological proposition.                        The

district   court   next     concluded      that   Dr.    Jervey’s    opinion     was

                                        16
equivocal because he stated that he was “‘unable to determine

precisely      how    much,   if   any   disability   exists.’”      J.A.   1053.

But,       while     Dr.   Jervey’s      opinion   was   equivocal    regarding

precisely to what degree Spry is disabled, it was not equivocal

on the proposition for which the Plan relied on the opinion,

namely, that Spry “could return to light duty work.”                  J.A. 671.

Whether Spry could perform an even more difficult level of work

was immaterial. 4




       4
       The district court also added that “the MRIoA peer review
speculated    that    Dr.    Jervey’s    examination    suggested
‘pseudoweakness,’ despite Dr. Jervey’s tentative opinion, four
years of recognized disability by Eaton, six years of disability
recognized by the Social Security Administration, and unchanged
medical findings during the entire period.”    J.A. 1053-54.   As
we have explained, Dr. Jervey’s opinion was not tentative on the
question of whether Spry could perform light duty work, and the
record contained substantial evidence that Spry’s condition had
improved since the benefits determinations referred to by the
district court.     Moreover, Dr. Jervey’s report clearly did
suggest that Spry’s “weakness” was effort-related. He stated,

       Postoperatively . . . her [neurosurgeon’s] exam
       indicates a relatively normal exam except for residual
       mild weakness which according to his report was much
       improved (it was only a 4-4+ weakness to begin with).
       This indicates to me that at that point in time her
       weakness was not to the point where it should have
       impaired her ability to return to her work.      On my
       exam today, her validity score is relatively low. She
       continues to have subjective complaints and the
       objective findings are relatively limited and seem to
       primarily be effort related.

J.A. 671.



                                          17
       The district court also concluded that Dr. Cohan’s opinion

was     equivocal            because     he        “indicated         that     ‘a      current

comprehensive description of [Spry’s] neurologic and orthopaedic

examination signs would be helpful in further consideration of

[Spry’s] claim.’”              J.A. 1053.            Although we cannot find this

statement         by   Dr.    Cohan    in     the    record,     we    believe      that     the

district court intended to reference Dr. Cohan’s statement in

his June 2006 report that “[a]dditional clinical documentation

which would be helpful in further consideration of this claim

would be a current comprehensive description of the claimant’s

neurologic and orthopedic examination signs, as there has been

no    such    report     since     the      Fall     of   2005.”       J.A.     872.       This

statement did not render equivocal Dr. Cohan’s opinion that Spry

was not totally disabled.                He specifically stated, “In summary,

it     is    my    opinion,      upon       review        of   the    extensive        medical

documentation          submitted        that        it    is   not     indicative       of     a

functional impairment for ‘any occupation’ effective February 1,

2006.”       J.A. 872.         He did not suggest that he could not draw

that conclusion from the records he reviewed.                                He stated only

that    more      recent      reports    would       be    helpful     in     the   event     of

“further consideration” of Spry’s claim.

       In addition to the points raised by the district court,

Spry also identifies what she contends are other deficiencies in

the Administrator’s decision to terminate her benefits.                                    Spry

                                               18
maintains     that       the    Administrator         acted        unreasonably        in     not

placing more emphasis on Dr. Wancier’s 2004 opinion.                              As we have

already explained, however, significant new evidence concerning

Spry’s     condition          emerged      after      Dr.     Wancier      submitted          his

opinion.      The       Administrator         reasonably      chose      to    rely     on    the

opinions of doctors who had reviewed this new information.

      Spry also contends that each of the medical opinions the

Administrator         relied     on     in    deciding        to     terminate        her     LTD

benefits are flawed because they did not assess all of Spry’s

conditions.       See McKoy v. International Paper Co., 488 F.3d 221,

224 (4th Cir. 2007).             But the Administrator was not limited to

considering       the    opinions       of    physicians       who      addressed      all     of

Spry’s conditions.             The critical point is that the Administrator

considered all of the conditions.                      And, nothing in the record

suggests    that        the     Administrator         relied       on    any     physician’s

opinion    for    a     proposition        broader     than    the      opinion    that      the

physician rendered.

      Spry also argues that the Administrator acted unreasonably

in   not   considering         whether       Spry’s    various       medical      conditions

were cumulatively disabling.                   However, except diabetes, which

Dr. Joseph Williams added as a secondary disabling condition

beginning in 2004, no other condition was ever listed by Spry’s

primary    care    physicians         as     being    disabling.          And,    Dr.       Mazal

opined in his September 2006 review that there was no evidence

                                              19
that   Spry’s   diabetes   would   prevent   her   from   performing   the

duties of any occupation.



                                   III.

       In sum, we conclude that the Administrator acted within its

discretion in terminating Spry’s LTD benefits.              We therefore

reverse the judgment in Spry’s favor and remand to the district

court for entry of judgment in favor of the Plan.



                                                   REVERSED AND REMANDED




                                    20
