                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-2189



JAMES A. WHITLEY,

                                                 Plaintiff - Appellant,

           versus


HARTFORD LIFE & ACCIDENT INSURANCE COMPANY,

                                                  Defendant - Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:04-cv-00129)


Argued:   September 26, 2007                 Decided:   January 29, 2008


Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.


Reversed and remanded with instructions by unpublished opinion.
Judge Gregory wrote the opinion, in which Judge Michael and Judge
Duncan joined.


ARGUED: J.   Lynn Bishop, Charlotte, North Carolina, for Appellant.
Katherine    Thompson Lange, WOMBLE, CARLYLE, SANDRIDGE & RICE,
P.L.L.C.,    Charlotte, North Carolina, for Appellee.     ON BRIEF:
Debbie W.    Harden, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Charlotte,   North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

     This lawsuit involves the termination of long-term disability

benefits under a group plan governed by the Employee Retirement

Income   Security      Act   of   1974    (“ERISA”).      James      A.   Whitley

(“Whitley”) claims that Hartford Life & Accident Insurance Company

(“Hartford”) abused its discretion in wrongfully terminating his

benefits.    After careful consideration, we reverse the district

court and award Whitley benefits.



                                         I.

     Whitley worked as a Wal-Mart truck driver for approximately

ten years.     On September 4, 1998, Whitley filed a claim with

Hartford for long-term disability benefits, stating he could no

longer work as a truck driver because of lower back pain.                 With his

claim, he submitted evidence of degenerative disc disease and a

bulging disc in his lumbar spine, limiting him to light work and no

lifting over 35 to 40 pounds.

     Hartford denied the claim, based on the presupposition that

driving trucks for Wal-Mart constituted light work, requiring only

the ability to lift 10 pounds.                Whitley appealed and presented

evidence that Wal-Mart truck drivers must occasionally lift and

carry up to 40 pounds and, at times, lift up to 80 pounds.

Hartford    obtained    additional       treatment   records   and    ordered   a




                                         2
functional capacity evaluation of Whitley.            Hartford eventually

approved Whitley’s benefits based on that evaluation.

     Hartford then conducted a vocational assessment to determine

whether Whitley qualified for an alternate job.            The assessment

indicated there were no alternative available jobs for someone with

Whitley’s education, work experience, and medical restrictions that

would pay enough to qualify as suitable work.            On July 6, 1999,

Hartford informed Whitley that he met the policy definition of

“Total Disability” and that he would continue to qualify for

benefits. (J.A. 117.) The letter also stated that “[p]eriodically

[Hartford would] provide [Whitley] with supplementary claim forms

so that [he could] furnish [them] with continued proof of Total

Disability.”    Id.    Whitley received benefits from Hartford from

September 1998 to February 2003.          On March 6, 2003, Hartford sent

Whitley a letter terminating his benefits.

     Hartford began investigating the validity of Whitley’s claim

after their fraud department received an anonymous letter in late

March 2001.    Following the receipt of the letter, Hartford began

surveillance of Whitley in late April 2001.              The surveillance

revealed   Whitley’s    doing   a    number    of   activities,   including

standing, sitting, driving, visiting his chiropractor, going to a

gym, and riding his tractor.        (See Ex. Vols. 1 & 2.)

     Additionally, as part of its investigation, Hartford had

Whitley submit an Attending Physician’s Statement of Continuing


                                      3
Disability filled out by his chiropractor, Dr. George Ring.                        The

assessment       indicated    that     Whitley       had   lower   back    pain    with

radiation down his left leg and that his pain prevented him from

sitting more than one hour and from lifting heavy weights, although

he could manage conveniently placed medium weights.                    In late July

2001,     a   Hartford   claim    investigator         interviewed    Whitley,      who

reported that he could, and did, do a number of activities.

      In      November   2001,   Hartford      requested       another     functional

capacity evaluation.         That evaluation concluded that Whitley could

sit for thirty minutes to an hour, provided he could change

positions, and could possibly do some light lifting.                         Hartford

conducted additional surveillance in late November.

      In December 2001, Hartford employed a nurse to review the

evaluation.1 She concluded that the functional capacity evaluation

appeared       valid   and   recommended       referring       Whitley’s    file    for

possible employability analysis. The employability analysis, dated

December 13, 2001, found that none of the occupations Whitley could

perform,       given   his   education,       work    experience,     and   physical

limitations, met or exceeded the required earning potential.

      In June 2002, Hartford resumed surveillance of Whitley.                      Also

in   June,     an   ergonomic    job   analysis       report    was   prepared     that


      1
      Whitley scored a 7 out of 16 on the Waddell questionnaire
associated with the 2001 functional capacity evaluation. According
to Hartford’s brief, “Waddell’s signs of positive for 3 or more are
strongly suggestive of symptom magnification.” (Appellee’s Br. 12
n.1 (emphasis added).)

                                          4
indicated Wal-Mart truck drivers must sit for six to eight hours a

day and at two to four hours at a time.         Other job requirements

included pushing and pulling with various amounts of force.

     In October 2002, Hartford requested an updated statement from

Whitley’s attending physician.      Because Dr. Ring, who was treating

him at the time, was unwilling to certify Whitley’s long-term

disability, Whitley went to see Dr. Abda, whom he had not seen

since January 8, 1999. Dr. Abda concluded that Whitley could stand

for 45 minutes, walk for 30 minutes, sit for 30 minutes and push or

pull 10 pounds.       X-rays conducted that day revealed increased

narrowing in Whitley’s vertebrae.2

     In   January   2003,    Hartford   had   Dr.     Elkins   conduct   an

independent medical examination. Dr. Elkins diagnosed Whitley with

degenerative disc disease at L4-5 and stated that Whitley should be

able to lift 75 pounds occasionally and 50 pounds frequently.

     In February 2003, the investigator contacted Dr. Abda by

letter,   informing    her   that   “[u]nlike       typical    truck-driver

occupational requirements, Wal-Mart’s truck-driver position is

considered ‘light work’ as the drivers do not load, unload, or

otherwise engage in any material handling.”          (J.A. 154.)

     On March 6, 2003, Hartford sent Whitley a detailed letter

terminating his benefits, explaining that he no longer met the



     2
      The x-rays revealed a narrowing in the lumbosacral joint or
L5-S1; previous narrowing had only been observed in his L4-5 space.

                                    5
policy’s definition of disabled.               Whitley appealed with support

from an independent medical examination by Dr. Shaffer, as well as

other documents.       Dr. Shaffer’s report concluded, “[i]t is my

medical    opinion    that    this   patient      is   totally    disabled    from

returning to long distance truck driving.”                (J.A. 559 (emphasis

added).)     When asked to reconcile that conclusion with Whitley’s

activities depicted on the surveillance tape, Dr. Shaffer wrote:

“I see nothing in these films which would alter my opinions as

expressed in my report of 9/16/03 to you.”              (J.A. 561.)

     Dr. Turner of the University Disability Consortium reviewed

Whitley’s    2001    interview     and   the    ergonomic   job    analysis    for

Hartford.     In his report, Dr. Turner indicated that if Whitley

could lift 30-40 pounds, there is no reason he could not push or

pull 60-80 pounds.      Additionally, Dr. Turner found Dr. Schaffer’s

report     inconsistent      and   the   functional      capacity     evaluation

administrated by Hartford unreliable. Based on Dr. Elkins’ finding

that Whitley could lift 50 pounds, Dr. Turner concluded Whitley

could push or pull 100 pounds and that Whitley should be restricted

to light work.        In the course of his assessment, Dr. Turner

performed no firsthand evaluations of Whitley’s condition.

     On October 29, 2003, Dr. Turner sent a letter to Dr. Abda that

read:     “[y]ou also feel that [Whitley] should have no problem

sitting 2-4 hours per day at a time as is required by his job.                 It

is your opinion that he should be able to lift and carry 35 pounds


                                         6
occasionally and push/pull if necessary up to 100 pounds.”         (J.A.

329.)    Dr. Abda signed the letter.3       Based on these opinions,

Hartford determined that Whitley no longer qualified for benefits.

     Pursuant to ERISA, Whitley filed suit in March 2004.         Counsel

for both parties filed cross-motions for summary judgment.            On

September 25, 2006, the United States District Court for the

Western District of North Carolina (“district court”) entered an

oral ruling on both motions for summary judgment.        The district

court found that the policy granted Hartford the discretion and the

authority to determine benefits eligibility and to interpret the

policy terms.   Using a modified abuse of discretion standard in

reviewing Hartford’s decision, the district court found (1) Whitley

did not meet his burden of proof because he failed to demonstrate

that he met the requirements of “total disability” under the

policy, (2) the defendant presented substantial evidence that

Whitley could work as a truck driver, (3) which Whitley failed to

rebut.   Based on these findings, the district court concluded that

substantial evidence demonstrated that Hartford’s decision to deny

benefits was reasonable, and that no evidence indicated that

Hartford   abused   its   discretion   in   denying   Whitley’s    total


     3
      Before signing the letter, Dr. Abda removed sentences stating
that she “noted [Whitley’s] lawyer tried to put words in [her]
mouth” and that she “[did] not note any evidence of impairment, and
your conclusion is in [sic] appears capable of performing his own
occupation as a truck driver full-time.” (J.A. 329.) Dr. Abda
replaced the latter with a statement rating Whitley at 25%
permanent partial impairment of his spine. Id.

                                  7
disability benefits.      Thus, the district court granted Hartford’s

motion    for   summary   judgment,   and     denied    Whitley’s.         Whitley

appealed to this Court.



                                      II.

     Generally, this Court reviews a summary judgment denying

disability benefits de novo, using the same standards applied by

the lower court.       Brogan v. Holland, 105 F.3d 158, 161 (4th Cir.

1997) (citing Sheppard & Enoch Pratt Hosp., Inc. v. Travelers Ins.

Co., 32 F.3d 120, 123 (4th Cir. 1994)).

     When the benefit plan gives the administrator discretionary

authority in determining eligibility for benefits or construing the

terms of the plan, a reviewing court may only reverse the denial of

benefits if the administrator abused its discretion.                     Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989); see also

Carolina Care Plan, Inc. v. McKenzie, 467 F.3d 383, 386 (4th Cir.

2006) (citing Smith v. Cont’l Cas. Co., 369 F.3d 412, 417 (4th Cir.

2004)).     However, when there is a conflict of interest, the

standard is slightly different.              “The more incentive for the

administrator     or   fiduciary   to       benefit    itself   by   a    certain

interpretation of benefit eligibility or other plan terms, the more

objectively reasonable the administrator or fiduciary’s decision

must be and the more substantial the evidence must be to support




                                        8
it.”     Ellis v. Metro. Life Ins. Co., 126 F.3d 228, 233 (4th Cir.

1997).

       In light of the apparent conflict of interest here, this Court

reviews Hartford’s decision under the modified abuse of discretion

test used for fiduciaries with conflicts of interest.                McKenzie,

467 F.3d at 386-87 (internal citations omitted).



                                       III.

       We   begin    by   establishing       the   parameters   of   Hartford’s

disability coverage.       Under the applicable policy,

       Total Disability or Totally Disabled means that:      (1)
       during the Elimination Period; and (2) for the next 12
       months you are prevented by:      (a) accidental bodily
       injury; (b) sickness; (c) Mental Illness; (d) substance
       abuse; or (e) pregnancy, from performing the essential
       duties of your occupation, and are under the continuous
       care of a Physician, and as a result you are earning less
       than 20% of your Pre-disability Earnings, unless engaged
       in a program of Rehabilitative Employment approved by us.

(J.A. 60 (emphasis added).)        The disability provision goes on to

explain     that    “[a]fter   that,    you    must   be   so   prevented   from

performing the essential duties of any occupation for which you are

qualified by education, training, or experience” and that “‘[y]our

occupation’ includes similar job positions with the Employer which

may be offered to you, with a rate of pay 60% or greater of your

Indexed Pre-disability Earnings.”              Id.    Hartford agrees to pay

disability benefits to claimants until either the date a claimant

is no longer disabled, or the date a claimant fails to provide


                                         9
proof of a continuous disability.                    Hartford terminated Whitley’s

benefits based on its assertion that the evidence in support of

Whitley’s claim did not establish that he continued to meet the

policy definition of “total disability.”                        We now turn to whether

that    decision        was    an      abuse        of     Hartford’s      discretion    or

unreasonable.



                                           IV.

       In   general,      “the      administrator's             decision    will   not   be

disturbed    if    it    ‘is     the    result       of     a   deliberate,    principled

reasoning process and if it is supported by substantial evidence.’”

Elliott v. Sara Lee Corp., 190 F.3d 601, 605 (4th Cir. 1999)

(quoting Brogan, 105 F.3d at 161).                       Substantial evidence consists

of less than a preponderance but more than a scintilla of relevant

evidence that “a reasoning mind would accept as sufficient to

support a particular conclusion.”                        Laws v. Celebrezze, 368 F.2d

640, 642 (4th Cir. 1966).               In assessing the reasonableness of a

fiduciary’s decision, a reviewing court may look to a variety of

factors including:

       (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)

                                               10
     the fiduciary's motives and any conflict of interest it
     may have.

Booth v. Wal-Mart Stores, Inc., 201 F.3d 335, 342-43 (4th Cir.

2000).   In this case, we focus primarily on the sufficiency of the

evidence upon which Hartford based its conclusion that Whitley

failed to continue to qualify for disability benefits, as well as

the reasonableness of Hartford’s decision-making process.

     In late March 2001, Hartford received the anonymous letter,

which sparked the two-year investigation of Whitley’s claim.      That

letter stated:

           The above referenced person has been collecting
     disability benefits from your company fraudulently for
     over 2 years. He had been talking about retiring for
     awhile before going out on disability. He worked for
     Walmart [sic] as a truck driver.          Before becoming
     disabled he bought a new GMC truck and said it was his
     “retirement truck.” I can’t remember the exact date he
     went on disability but I am recalling it as spring [sic]
     1998.
           Following his “retirement” on disability, he was
     witnessed crawling around on a barn roof and helping a
     neighbor build a new barn.       In early 1999 when the
     eastern part of North Carolina was flooded due to a
     hurricane, he went with a church group to help rebuild
     the houses, was gone for 2 weeks and slept on a hard
     church pew the whole time (I saw this on video).
           Every year he goes deer hunting with his son-in-law,
     Chris Rodriguez and crawls around up in tree stands.
     Every spring and summer since his “disability” he has
     continually driven a tractor, plowed a garden, worked a
     garden, and driven a riding lawn mower.
           During the third week of March, he drove a full size
     van to Orlando Florida [sic] from North Carolina and back
     with his family. Now keep in mind that James is out on
     permanent disability due to his back. He can’t work at
     all but it is ironic that he can do other things he wants
     to [sic]. Within the past year, I have heard him state
     that he has a good disability policy and he makes more
     money being disabled than he did working.

                                 11
          This irritates me to no end knowing he is doing what
     he wants to do while I go to work and pay to keep up his
     disability “retirement.” I can’t give my name because he
     knows me very well, but if your company wants to save
     some money, just watch him for a while.

(J.A.   130.)     Following      the       receipt     of    the    anonymous    letter,

Hartford    ordered    a     second    functional           capacity   evaluation     in

November 2001, the results of which ultimately supported Whitley’s

position.       Yet   in   spite      of    the   two       evaluations,   the     claim

investigator assigned to Whitley’s case wrote an internal letter in

which she stated:          “I don’t believe these results are accurate

given   what    has   been    reported       to   us    by     an   anonymous     person

concerning Mr. Whitley’s activities. . . .                   It is my suspicion that

this clam’t is capable of performing his Wal-Mart trucker job which

is considered Light and have [sic] the ability to sit for 2 hrs.

(minimal lifting).”          (J.A. 185 (emphasis added).)                 In the same

correspondence, the claim investigator noted that she was currently

employing a registered nurse who had performed functional capacity

evaluations herself to review Whitley’s second evaluation.                          That

nurse found the results reliable and that Whitley “gave good

effort.”    (J.A. 263.)       When the same nurse was again asked for her

opinion in April 2002, the claim investigator noted that the nurse

“is of the opinion the claimant cannot return to work due to his

age and back problem.”         (J.A. 176.)           Five months later, Hartford

requested another evaluation from Dr. Abda, the results of which

showed further degeneration of Whitley’s condition.                             An x-ray


                                            12
revealed narrowing of Whitley’s L5-S1, when previously narrowing

had only been observed in the L4-5 space.          (J.A. 321.)      Thus, all

of the objective tests requested by Hartford supported Whitley’s

continued disability.

     Unlike many ERISA cases, which deal primarily with conflicting

medical diagnoses,4 the dispute here does not stem from Whitley’s

ailment, which is more or less undisputed:          doctors on both sides

agree    that   Whitley   has   a   degenerative   disc   disease    at   L4-5.

Additionally, it is undisputed that the disease has spread.                 Both

sides acknowledge that this problem limits his ability both to sit

and to lift.     The disagreement is with respect to how severely the

undisputed      disease   impairs   Whitley’s   functioning.        Thus,    the

central issue of this case is not Whitley’s diagnosis, but whether,

given Whitley’s acknowledged physical limitations, he proved he

could not perform the essential duties of his former occupation.

We, therefore, first address exactly what constitutes the essential

duties of a Wal-Mart truck driver.

     Wal-Mart’s Ergonomic Job Analysis Report specifically states

that opening the trailer door involves the ergonomic risk factors



     4
      In Ellis, 126 F.3d at 233, we held that an administrator
acted reasonably in denying a claim because, despite the opinion of
several doctors that she was disabled, the insurance company had
“substantial evidence” that her doctors did not agree on the proper
diagnosis, and three independent medical reports “concluded that
there was no conclusive diagnosis of Ellis’s condition.” However,
unlike in Ellis, here the doctors concurred in Whitley’s diagnosis.


                                       13
of “force, reach, awkward posture (shoulder flexion, lateral back

flexion).”    (J.A. 528.)   The report indicates that beyond the

sitting and occasionally lifting, being a Wal-Mart truck driver

requires pushing and pulling:

     The force required to release the tandem pin [at the back
     of the truck] is estimated to be 30-35 lbs. under optimal
     conditions. At times (occasionally), 50-65 lbs. of force
     may be required to release the tandem pin, and on
     occasion (rarely) up to 75 lbs. of force may be required.
     Force required to adjust landing gear, dollying up, is
     estimated to be 50-60 lbs. for an empty trailer and and
     [sic] 120 lbs. with a loaded trailer. Varying amounts of
     force are required to open the roll-up doors on the
     trailers, depending upon the condition of the trailer and
     the door.

(J.A. 519.)   Accordingly, the report summarizes the exertion

required for the job as follows:

     The physical demand of this job, overall, can be
     classified as “sedentary to light”.          The driving
     component, in itself, requires mental alertness with some
     physical demand required to operate controls, steering,
     etc. This physical demand is associated with the ability
     to sit for long periods (sedentary) and the ability to
     operate    driving    controls,    including    steering,
     accelerator, brake, clutch, gear changes, radio, and
     various dashboard controls (light).     The driver’s job
     requires no material handling in terms of loading and
     unloading freight. However, more taxing physical demands
     do occur intermittently. More taxing demands occur as
     the driver climbs in and out of the cab, stoops/crouches
     during safety checks, dollies the trailer, adjusts
     tandems, and opens and closes the trailer door. These
     intermittent (and for the most part infrequent) tasks,
     individually, fall into classification levels of
     “medium”, “heavy” and “very heavy”. Assistance with the
     more taxing physical demands is available while the truck
     is in the yard. No assistance is available to drivers
     after they leave the yard and they must perform these
     tasks on the road independently as necessary.



                                14
(J.A. 529 (emphasis added).)    Thus, even if a person could perform

most of the job’s “light” essential duties, he or she might have

difficulty   with    more   taxing        physical    demands   that   occur

intermittently.     Based on the physical requirements of a Wal-Mart

truck driver outlined in the Ergonomic Job Analysis Report, we

conclude that, although the more strenuous actions of releasing the

tandem pin and adjusting the landing gear do not take up a majority

of a Wal-Mart truck driver’s time on the job, they are nonetheless

essential duties for the purposes of assessing disability.

     We now examine Hartford’s conclusion that Whitley, given his

undisputed medical condition, could perform all the essential

functions of a Wal-Mart truck driver. In particular, we assess the

evidence regarding whether Whitley could sit two to four hours at

a time and push and pull with 120 pounds of force.

     Hartford looks to the medical opinion of two doctors, Dr.

Turner and Dr. Abda, in support of the reasonableness of its

decision to terminate Whitley’s benefits.            However, neither doctor

presented reliable, persuasive evidence that Whitley could perform

all the essential duties of Wal-Mart trucker driver outlined in

Wal-Mart’s Ergonomic Job Analysis Report.

     Both functional capacity evaluations, as well as Dr. Abda’s

2002 analysis, indicated that Whitley could not sit for the two to

four hours at a time required by his former job.            To refute these

medical results, Hartford presented a letter signed by Dr. Abda,


                                     15
concluding that Whitley could sit for the required amount of time.

However, the letter does only that:       it concludes that Whitley is

capable of sitting two to four hours but without any justification

whatsoever. In fact, the letter is simply a series of conclusions,

at which Dr. Turner arrived, with which Dr. Abda indicates she

agrees absent any of her own independent medical evaluation.         Dr.

Turner’s own report included no analysis, beyond his observation of

the surveillance video, and such casual, non-medical statements as

“[n]o one who has any significant back pain would intentionally

ride a riding lawnmower.”      (J.A. 567.)   He then concluded “there is

no reason that [Whitley] could not sit for two to four hours at a

time for a total of eight hours a day, as noted in his own job

description.”    (J.A. 568.)    Although, Dr. Turner and Dr. Abda made

conclusory statements regarding the length of time Whitley could

sit, they provided no explanation of the medical foundation used to

arrive at these conclusions.

     Moreover,    there   is      absolutely    no   evidence   in   the

administrative record that Whitley could exert the 120 pounds of

force that may, albeit rarely, be required of a Wal-Mart truck

driver.   Although both Dr. Abda and Dr. Turner agreed that Whitley

could push or pull up to 100 pounds, no medical professional

expressed the view that Whitley could push or pull 120 pounds, the

amount of force necessary to “dolly up” a loaded trailer, according

to the Ergonomic Job Analysis Report.        (J.A. 519.)


                                    16
      In determining disability under Hartford’s policy, the inquiry

is not whether a claimant can perform most of the essential duties

of   the   job:    it   is   whether    the    claimant    is    prevented    from

“performing the essential duties of [his] occupation.”                (J.A. 60.)

Although Whitley may be capable of performing the light work that

constitutes most of a Wal-Mart truck driver’s responsibilities, his

inability to perform even a single and infrequent, yet essential,

job requirement renders him disabled under Hartford’s policy.

Specifically, we find nothing in the record to indicate that

Whitley is capable of exerting 120 pounds of force.                All evidence

on both sides is to the contrary.

      In short, Hartford has not presented any evidence with regard

to how Dr. Turner, a physician who had never examined Whitley,

could accurately deduce how long Whitley could sit at a time or the

amount of force with which he could push or pull.               Similarly, there

is no evidence in the record of the process used by Dr. Abda to

arrive at her conclusion that Whitley could sit for two to four

hours at a time or could push or pull with 100 pounds of force,

given she had concluded after an office visit that Whitley could

sit for only half an hour and push or pull only ten pounds.

(Compare J.A. 325 with J.A. 329.)             Perhaps tellingly, Dr. Abda’s

Progress Note on March 5, 2003 states that she agreed that Whitley

could perform “light duty work,” yet she removed the sentence

stating    that   Whitley    “appears    capable   of     performing    his   own


                                        17
occupation as a truck driver full-time” from the October 29, 2003

letter Dr. Turner drafted for her to sign.         (J.A. 329.)      Dr. Abda

instead indicated that Whitley was at a 25% permanent partial

impairment   of    his   spine.   Thus,   it   seems   the   only    medical

professional willing to state explicitly that Whitley could return

to work as a Wal-Mart trucker driver had never actually seen him.5

     In light of the functional capacity evaluations,6 Hartford’s

nurse’s   review    of   Whitley’s   abilities,7   and   Dr.     Schaffer’s

evaluation,8 Whitley provided sufficient proof of his continued


     5
      Dr. Schaffer noted in his report that Dr. Abda indicated that
“[i]t was her opinion that the patient could be able to do light
duty work but she says nothing about going back to long distance
truck driving.” (J.A. 559 (emphasis in original).)
     6
      The first functional capacity evaluation, performed in March
1999, found Whitley capable of carrying only 20 pounds, pulling 53
pounds, and pushing 36 pounds and that he could sit only up to one
hour without pain. The second functional capacity exam in November
2001 indicated that Whitley could push with an average of 40.5
pounds of force, pull with an average of 42.83 pounds of force, and
sit up to 35 minutes.
     7
      As previously stated, in December 2001, Hartford employed a
registered nurse to review Whitley’s second functional capacity
evaluation.    The nurse found the results to be valid and
recommended an employability analysis based on those results.
     8
      Dr. Schaffer wrote:
     It is my medical opinion that this patient is totally
     disabled from returning to long distance truck driving.
     His job requirements are clear. They indicate the need
     for forceful pushing and pulling, extraction of pins
     requiring up to 130 [sic] lbs. of force and operating
     trailer doors which at times stick.     These are in a
     addition to 1-5 hours of prolonged sitting in a bouncing
     truck cab. Quite frankly, if I were a CDL examiner I
     would fail this patient on his medical application for
     continuation of that license based on my belief that he

                                     18
disability,    as   required    by   the   terms   of    Hartford’s   policy.

Conversely, Hartford provided no substantial evidence that Whitley,

in fact, could perform all of the essential functions of his job.

We hardly find the medical opinions of one doctor based solely on

secondhand    information      and   another    doctor     preoccupied   with

Whitley’s performance at the gym, whose evaluation a year earlier

yielded completely different results, to be thorough or persuasive

when viewed in conjunction with the medical evidence supporting

Whitley’s    continued   disabled     status.      Given    that   Hartford’s

termination of Whitley’s benefits turned on the evaluations of one

medical professional who never performed a firsthand evaluation of

Whitley and another who based her conclusions on her non-medical

observations of Whitley at a local gym, as well as surveillance



     would be a dangerous hazard to traffic in addition to
     aggravating his physical condition. One cannot maintain
     the continuous mental concentrations that are required to
     operate a vehicle weighing up to 85,000 lbs. at speeds up
     to 75 m.p.h. when one is experiencing pain.          Such
     distractions would make that driver inattentive and
     liable for failing to avoid accidents which other
     physically fit drivers would have no trouble avoiding.
(J.A. 559.)    When asked if the surveillance tapes altered his
analysis of Whitley’s abilities, Dr. Schaffer replied:
     I see nothing in these films which would alter my
     opinions as expressed in my report of 9/16/03 to you. I
     did note that Mr. Whitley walked with a flexed forward
     gait which was certainly not brisk and unusually slow and
     quite deliberate.   The comments of him [sic] standing
     around talking to acquaintances were noted to be
     interrupted with moving around frequently, not standing
     in a fixed position and on at least one occasion
     appearing to lean against a truck bed.
(J.A. 561.)

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videos   depicting    Whitley        performing   a    variety    of   irrelevant

physical activities, we hold that Hartford failed to present

substantial evidence to support its determination that Whitley was

no longer disabled.     Moreover, Hartford did not present a shred of

evidence that Whitley could perform the “heavy” to “very heavy”

essential duties of his job.

     In sum, the anonymous letter Hartford received in March 2001

obscures the central issues of Whitley’s claim.                Whitley initially

received disability benefits due to his limitations regarding

sitting and lifting.          The heavy emphasis placed on Whitley’s

purported ability to engage in unrelated activities based on the

letter and surveillance videos, rather than on his ability to

perform all of the essential duties of a Wal-Mart truck driver, is

misplaced.        Ironically,    the    objective      tests    and    evaluations

requested    by   Hartford,     in    response    to   the   anonymous     letter,

effectively   proved    Whitley’s       continued      disability.       Even   the

doctors upon whom Hartford relies were not of the opinion that

Whitley could exert enough force to perform the medium to heavy

tasks associated with his former job.               We, therefore, hold that

Hartford’s    decision     to        terminate    Whitley’s       benefits      was

unreasonable.




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                                     V.

     Given the medical evidence in support of Whitley’s continuing

total disability and the unreliability of the evidence to the

contrary,   Hartford   failed   to   present   substantial   evidence   in

support of the termination of Whitley’s benefits.             We thereby

reverse the district court’s judgment and remand for entry of

judgment in Whitley’s favor.



                            REVERSED AND REMANDED WITH INSTRUCTIONS




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