                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                            F I L E D
                       REVISED MAY 15, 2007
                                                              May 10, 2007
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk

                           No. 06-31095
                         Summary Calendar



                          JAMES O’REAR,

                                              Plaintiff-Appellant,

                              versus

                 PAUL REVERE LIFE INSURANCE CO.,

                                               Defendant-Appellee.


          Appeal from the United States District Court
              for the Western District of Louisiana
                           (2:05-CV-86)


Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

     James O’Rear contests a summary judgment awarded Paul Revere

Life Insurance, Co. against his action seeking long-term-disability

(LTD) benefits under a plan governed by the Employee Retirement

Income Security Act, 29 U.S.C. § 1001 et seq. (ERISA). Essentially

for the reasons stated by the district court, the judgment was

proper.




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     In October 2002, Paul Revere, the insurer and administrator of

O’Rear’s LTD plan, approved his claim for LTD benefits.    Under the

plan, for the first 24 months of disability (first phase), recovery

of benefits required proof that he was “totally disabled” from his

own occupation.   After 24 months of disability (second phase),

however, recovery of benefits required proof that he was “totally

disabled” from any occupation.

     As the second phase approached, Paul Revere reviewed O’Rear’s

medical records and, based on that review, conducted a vocational

assessment, which identified three occupations that matched his

physical abilities and experience.    Accordingly, having determined

O’Rear was not “totally disabled” from any occupation, Paul Revere

terminated his benefits at the conclusion of the first phase.

     O’Rear filed this action, claiming Paul Revere’s benefits-

denial was an abuse of discretion.        As noted, Paul Revere’s

summary-judgment motion, which O’Rear did not oppose, was granted.

     A summary judgment is reviewed de novo, applying the same

standard as the district court.   E.g., Meditrust Fin. Servs. Corp.

v. Sterling Chems., Inc., 168 F.3d 211, 213 (5th Cir. 1999).     As

O’Rear concedes, Paul Revere’s benefits denial is reviewed only for

abuse of discretion.    E.g., id. at 214 (“Deciding the medical

progress of a patient through analysis of medical reports and

records is similar to the factual determinations we have reviewed

for abuse of discretion in other ERISA cases.”); Sweatman v.

                                  2
Commercial Union Ins. Co., 39 F.3d 594, 597-99 (5th Cir. 1994).

Such review is limited to the administrative record, and seeks to

determine   “only   whether   the   ‘record   adequately    supports   the

administrator’s decision’”.      Gooden v. Provident Life & Accident

Ins. Co., 250 F.3d 329, 333 (5th Cir. 2001) (quoting Vega v. Nat’l

Life Ins. Servs., Inc., 188 F.3d 287, 298 (5th Cir. 1999) (en

banc)).   Under such review, an administrator abuses its discretion

if it denies a claim “[w]ithout some concrete evidence in the

administrative record”.       Vega, 188 F.3d at 302.       Moreover, such

review “need only assure that the administrator’s decision fall

somewhere on a continuum of reasonableness — even if on the low

end”.   Id. at 297.

     Less deference is given under the abuse-of-discretion standard

where an administrator is self-interested.       Id. at 296-97.     Here,

however, the only evidence of a conflict of interest is the

insurer’s position as both the insurer and the administrator.

Accordingly, to the extent such a conflict affects the amount of

discretion afforded Paul Revere’s decision, we conduct our review

“with only a modicum less deference than we otherwise would”.          Id.

at 301.

     In stating the relevant facts, both Paul Revere’s unopposed

summary-judgment motion and the district court’s memorandum ruling

cite to the administrative record.        These facts, which are not

contested by O’Rear, demonstrate that Paul Revere’s benefits denial

                                    3
was supported by adequate evidence.      The record shows that Paul

Revere based its benefits-denial on, inter alia, an evaluation of

O’Rear’s medical records, which included O’Rear’s own physician’s

finding O’Rear capable of:   standing for 30 minutes at a time for

up to two hours per day; sitting for one hour at a time for up to

a “varying” amount of time per day; and driving for one hour at a

time for up to four hours per day.    Based on those medical records,

Paul Revere’s vocational assessment identified three occupations

that matched O’Rear’s physical abilities and experience.

     Subsequent to Paul Revere’s notifying O’Rear of its benefits-

denial decision, O’Rear’s physician found that O’Rear was, inter

alia:   “totally disabled” and “not able to work”; and limited to

four hours of sedentary activity per day.      The record shows Paul

Revere rejected these findings, as they were not supported by

objective medical evidence such as diagnostics or office notes.

O’Rear was explicitly advised by Paul Revere that, in appealing its

benefits denial, he could submit such evidence.    He did not do so.

     Accordingly,   the   post-notification   findings   by   O’Rear’s

physician do not undermine Paul Revere’s benefits denial.         See

Gooden, 250 F.3d at 333-34 (letter from treating physician stating

that the insured was disabled did not undermine administrator’s

benefits-denial because “it was written after [the insured] learned

he was being terminated, and was unaccompanied by medical evidence




                                  4
indicating that [the insured]’s condition changed since the last

time [the physician] had seen [the insured]”).

                                                     AFFIRMED




                                5
