                       REVISED AUGUST 6, 2009

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit

                                                                  FILED
                                 No. 08-30967                     July 16, 2009

                                                            Charles R. Fulbruge III
                                                                    Clerk
DERRELL HOLLAND,

                                           Plaintiff - Appellee
v.

INTERNATIONAL PAPER COMPANY RETIREMENT PLAN,

                                           Defendant - Appellant



                 Appeal from the United States District Court
                    for the Western District of Louisiana


Before KING, GARWOOD, and DAVIS, Circuit Judges.
KING, Circuit Judge:
       Plaintiff Derrell Holland brings this suit against Defendant Retirement
Plan of International Paper Co. alleging that he was denied disability retirement
benefits in violation of provisions of the Employee Retirement Income Security
Act.   The Plan Administrator denied Holland’s application for disability
retirement benefits. The district court granted Holland relief from that denial,
on the ground that the Plan Administrator abused its discretion, and awarded
retirement benefits to Holland. The Retirement Plan now appeals. We reverse
and remand for entry of judgment in favor of the Retirement Plan because the
Plan Administrator did not abuse its discretion.
No. 08-30967




     2
                                      No. 08-30967

      I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       Derrell Holland worked at International Paper Co.’s mill in Bastrop,
Louisiana, for over thirty-six years. During that time, he held positions of paper
machine specialist, equipment operator, dispatcher, and, most recently, fire
protection specialist. With the exception of the dispatcher position,1 which he
performed for about two years, Holland’s positions required heavy physical
exertion. On April 28, 2003, Holland suffered a myocardial infarction (heart
attack), had a pacemaker inserted, and was unable to return to his position as
a fire protection specialist due to the physical demands of the position. He
applied for and received thirty-nine weeks of sickness and accident benefits.
       He also applied for disability retirement benefits under the Retirement
Plan of International Paper Co. (the “Plan”). The Plan is an employee welfare
benefit plan governed by the Employee Retirement Income Security Act
(“ERISA”). International Paper funds the Plan by making irrevocable, non-
reversionary, periodic payments into a separate trust, from which all benefits
are paid. Under the terms of the Plan, International Paper’s Senior Vice
President–Human Resources is the Plan Administrator. The Plan grants the
Plan Administrator the discretionary power and authority “to interpret the Plan,
and to resolve ambiguities, inconsistencies and omissions, which determination
shall be conclusive and binding upon all persons having any interest in or under
the Plan”; “to decide questions concerning the Plan and the eligibility of any
Employee to participate in the plan, in accordance with the provisions of the

       1
          Holland described the dispatcher position as having light physical requirements.
International Paper’s Manager–Industrial Relations, Kevin P. Doherty, however, attested that
“[a]ll positions at the Louisiana Mill for which Mr. Holland may be qualified are physically
demanding jobs that require numerous types of exertions and frequently changing working
conditions.”

                                             3
                                 No. 08-30967

Plan”; and “to determine the amount of benefits which shall be payable to any
person in accordance with the provisions of the Plan.”
      The Plan states that an employee “may be entitled to a disability
retirement benefit under the Plan provided you meet the Plan’s definition of
‘totally and permanently disabled’ as determined by the [P]lan [A]dministrator.”
The Plan defines “totally and permanently disabled”:
      [A] total disability . . . is a medically determinable physical or
      mental impairment or diagnosed terminal illness which renders the
      Participant incapable of performing any occupation or employment
      for which the Participant is qualified by education, training or
      experience and which is likely to be permanent for the remainder of
      the Participant’s life, provided the Plan Administrator finds, and a
      physician or physicians designated by the Plan Administrator
      certify, that the Participant is Disabled.
      In his application for benefits, Holland stated his disability as “heart
attack, pacemaker, [emphysema], leaking heart valve[,] nerve damage in back,
[and] high blood pressure.” He submitted medical records from several doctors,
most significantly Dr. Keith Calhoun and Dr. Robert Sarama. International
Paper submitted reports from two reviewing doctors, Dr. Richard Fraser and Dr.
Leonard Sonne, and the report of its independent medical examiner, Dr. Godfrey
Achilihu. Dr. Calhoun, Holland’s primary care physician, treated Holland in the
aftermath of his heart attack. In order to facilitate Holland’s application for
disability retirement benefits, Dr. Calhoun completed several versions of a
Functional Assessment Form, in which he noted that Holland suffered a “50-60%
decrease in endurance”; could stand or walk for one to three hours and sit for
three to five hours in an eight-hour day; could lift ten to twenty pounds, but
could lift twenty-five pounds only rarely; could use his hands for repetitive
simple grasping and fine manipulation; could reach above shoulder level; could

                                       4
                                 No. 08-30967

bend frequently and twist, stand, sit, stoop or climb occasionally; could walk an
eighth to a half mile; but could not engage in repetitive lifting, pushing, or
pulling. Dr. Calhoun specified that Holland’s pulmonary function was “[n]ot less
than 85% of predicted.” Furthermore, Holland was restricted from working near
mechanical and electrical hazards. Dr. Calhoun therefore assigned Holland a
Class III Impairment rating, which the form describes as a “[s]light limitation
of functional capacity, capable of light work (35-55%).”              Somewhat
contradictorily, however, Dr. Calhoun also concluded that Holland was “totally
disabled, so as to prevent him . . . from engaging in any occupation and
performing any work for compensation or profit.”
      Holland also submitted reports from Dr. Sarama, a pulmonologist, who
examined Holland on two occasions. Dr. Sarama initially noted that Holland
was under no acute distress and diagnosed Holland with a significant degree of
reversible airway damage. After treatment, Holland advised Dr. Sarama that
he felt better, was short of breath less frequently, and was capable of increased
physical exertion. Dr. Sarama also documented that Holland was “actually
rebuilding his shop” due to these improvements.
      After Holland submitted his application for disability retirement benefits,
the Plan sent his reports to Dr. Fraser, an internist. Dr. Fraser reviewed
Holland’s medical records and concluded that Holland “is not capable of
performing his previous work as a Fire Protection Specialist” but is “capable of
performing a sedentary job with the restrictions [discussed by Dr. Calhoun].”
Thus, Dr. Fraser determined that Holland was not totally disabled. Dr. Fraser
did not recommend vocational rehabilitation counseling.
      Based on Holland’s submissions and Dr. Fraser’s review, the Plan
Administrator denied Holland’s application on the ground that he did not meet

                                       5
                                  No. 08-30967

the definition of “totally and permanently disabled.” Holland appealed for
another review. The Plan Administrator then hired Dr. Sonne and Dr. Achilihu
to review Holland’s application. Dr. Sonne, an internist with board certification
for treating pulmonary disease, reviewed Holland’s medical records and
concluded that “there was insufficient documentation to substantiate total
disability as defined by the Plan language.”
      Dr. Achilihu, a cardiologist, examined Holland and determined that “from
a cardiac standpoint [he did] not feel that Holland meets the definition of total
disability. [He did] not feel that he is totally disabled from ‘performing any
occupation or employment.’” Dr. Achilihu also reported that Holland was
relatively healthy, confirmed that his myocardial infarction studies were normal,
and noted that his chest pain was atypical for angina. Dr. Achilihu concluded
that Holland was “best suitable for work within the sedentary and/or light duty
capacity with restrictions of no excessive physical exertion.” Unlike Dr. Fraser,
Dr. Achilihu recommended vocational rehabilitation counseling to assist Holland
in seeking a new job.
      The Plan Administrator then reconsidered Holland’s appeal and
reaffirmed its denial of benefits. It notified Holland that he had the right to file
a civil action under ERISA § 502(a), 29 U.S.C. § 1132(a)(1)(B).
      Holland did just that on June 22, 2005, instituting this lawsuit in the
United States District Court for the Western District of Louisiana. The court
referred the case to a Magistrate Judge, who issued a Report and
Recommendation concluding that the Plan Administrator abused its discretion
in denying Holland disability retirement benefits because the denial was not
supported by substantial evidence.        In particular, the Magistrate Judge
concluded that the Plan Administrator lacked sufficient evidence and improperly

                                         6
                                  No. 08-30967

failed to consult a vocational expert in determining that Holland possessed the
education, training, or experience required to perform sedentary or light work.
The Magistrate Judge doubted whether Holland’s prior job as a dispatcher “fits
the true meaning of light work” and, in any case, determined that it was
“unlikely that Holland would be able to perform the job of dispatcher, or any
other job within [International Paper], due to the environmental restriction that
he not work around mechanical or electrical hazards.” Because the record did
not contain evidence of other light or sedentary jobs, the Magistrate Judge
recommended the conclusion that the Plan Administrator should have consulted
a vocational rehabilitation expert.
      The district court adopted the Report and Recommendation after
considering the parties’ objections and responses and their briefed arguments
about the effect of the Supreme Court’s intervening decision in Metropolitan Life
Insurance Co. v. Glenn, --- U.S. ----, 128 S. Ct. 2343 (2008). See Holland v. Ret.
Plan of Int’l Paper Co., No. 05-1095, 2008 WL 4163089, *6 (W.D. La. Sept. 4,
2008). The district court paid the Plan Administrator’s decision a modicum less
deference because of the apparent conflict that arose from International Paper’s
funding of the trust and its Senior Vice President’s role as the Plan
Administrator. Id. at *4. Substantively, the district court noted that “[a]lthough
all of Defendant’s medical reviewers concluded that Holland was capable of
performing some occupation, none indicated what kinds of jobs Holland was
capable of performing.” Id. at *6. Discounting the two years that Holland
worked as a dispatcher—a light duty job—because Doherty explained that all of
the jobs for which Holland qualified were physically demanding, the district
court found that “Holland has worked almost exclusively in heavy, labor


                                        7
                                  No. 08-30967

intensive work for over thirty years, which indicates that his skills are not
transferable.” Id. The court thus held that the Plan Administrator “could not
have competently determined that there were jobs for which Holland was
qualified by education, training, or experience without consulting a vocational
expert” and that “[t]he Administrator’s conclusion that Holland is not disabled
is not supported by substantial evidence and is thus arbitrary and capricious.”
Id. As such, applying a modicum less deference, the district court held that the
Plan Administrator abused its discretion and, consequentially, awarded Holland
disability retirement benefits and attorney’s fees. Id. at *7.
      The Plan appealed, and we have jurisdiction under 28 U.S.C. § 1291.
                               II. DISCUSSION
      The Plan appeals the district court’s judgment. We review de novo the
district court’s judgment awarding disability retirement benefits, although we
will set aside the district court’s factual findings only if clearly erroneous.
Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th Cir. 2008); Sweatman v.
Commercial Union Ins. Co., 39 F.3d 594, 601 (5th Cir. 1994).
      Under de novo review, we apply the same standard to the Plan
Administrator’s decision as did the district court. In this case, because the Plan
undisputedly gives the Plan Administrator the discretionary authority to
construe the Plan’s terms and to render benefit decisions, we reverse the Plan
Administrator’s denial of benefits to Holland only if it abused its discretion.
Stone v. UNOCAL Termination Allowance Plan, --- F.3d ----, No. 08-20254, 2009




                                        8
                                       No. 08-30967

WL 1479405, at *4 (5th Cir. May 28, 2009); see also Firestone Tire & Rubber Co.
v. Bruch, 489 U.S. 101, 115 (1989).2
       A plan administrator abuses its discretion where the decision is not “‘based
on evidence, even if disputable, that clearly supports the basis for its denial.’”
Lain v. UNUM Life Ins. Co., 279 F.3d 337, 342 (5th Cir. 2002) (quoting Vega v.
Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999) (en banc)). We reach
a finding of abuse of discretion only where “the plan administrator acted
arbitrarily or capriciously.” Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc.,
168 F.3d 211, 214 (5th Cir. 1999). “A decision is arbitrary only if made without
a rational connection between the known facts and the decision or between the
found facts and the evidence.” Id. at 215 (quotation marks omitted). Our
“review of the administrator’s decision need not be particularly complex or
technical; it need only assure that the administrator’s decision fall somewhere
on a continuum of reasonableness—even if on the low end.” Corry v. Liberty Life



       2
         Typically, we employ a two-step process when conducting this review. Stone, 2009 WL
1479405, at *4; High v. E-Sys. Inc., 459 F.3d 573, 577 (5th Cir. 2006). First, we determine
whether the Plan Administrator’s determination was legally correct. Stone, 2009 WL 1479405,
at *4. If the determination was legally correct, there is no abuse of discretion; if it was
incorrect, then we must review whether that interpretation was an abuse of discretion. Id.
Nonetheless, we are not confined to this test; we may skip the first step if we can more readily
determine that the decision was not an abuse of discretion. Duhon v. Texaco, Inc., 15 F.3d
1302, 1307 n.3 (5th Cir. 1994); MacLachlan v. ExxonMobil Corp., 350 F.3d 472, 481 (5th Cir.
2003), abrogated on other grounds as recognized by Crowell, 541 F.3d at 311–12; see also
Sweatman, 39 F.3d at 602–03 (concluding that an ERISA administrator’s determination was
not an abuse of discretion and affirming judgment on that basis without considering whether
the administrator’s determination was legally correct). The parties in this case have not
conformed their arguments to our traditional two-step analysis, instead focusing only on
whether the Plan Administrator abused its discretion in denying Holland benefits.
Accordingly, we bypass, without deciding, whether the Plan Administrator’s denial was legally
correct, reviewing only whether the Plan Administrator abused its discretion in denying the
claim.

                                               9
                                        No. 08-30967

Assurance Co. of Boston, 499 F.3d 389, 398 (5th Cir. 2007) (quotation marks
omitted).
       If the administrator has a conflict of interest, “we weigh the conflict of
interest as a factor in determining whether there is an abuse of discretion in the
benefits denial, meaning we take account of several different considerations of
which conflict of interest is one.” Crowell, 541 F.3d at 312 (quotation marks and
footnotes omitted) (quoting Glenn, 128 S. Ct. at 2350–51); see also White v. St.
Luke’s Episcopal Health Sys., 317 F. App’x 390, 392 (5th Cir. 2009) (“[A] ‘conflict
of interest’ . . . should ‘be weighed as a factor’ in determining whether an abuse
of discretion occurred.”). In addressing how such a conflict must be accounted
for under an abuse of discretion review, the Supreme Court in Glenn eschewed
“special burden-of-proof rules, or other special procedural or evidentiary rules,
focused narrowly upon the evaluator/payor conflict.” 128 S. Ct. at 2351. In
particular, the Court held that weighing a conflict as a factor in the abuse of
discretion analysis does not “impl[y] a change in the standard of review, say,
from deferential to de novo review.” Id. at 2350.3 Quite simply, “conflicts are


       3
         Previously, if we identified a conflict of interest, we would apply a “sliding scale” to
assess the potential impact of the conflict. Lain, 279 F.3d at 343; see generally Vega, 188 F.3d
at 298–99 (adopting a “sliding-scale” methodology of weighing conflicts of interest). “The
greater the evidence of conflict on the part of the administrator, the less deferential our abuse
of discretion standard will be.” Lain, 279 F.3d at 343. For example, “[w]hen a minimal basis
for a conflict [was] established,” we would “review the decision with only a modicum less
deference than we otherwise would” under the abuse of discretion standard. Id. (emphasis in
original, quotation marks omitted). Based on this precedent, the district court in this case
applied a modicum less deference to the Plan Administrator’s decision because of the existence
of an apparent conflict of interest. See Holland, 2008 WL 4163089, at *4.
        While this course of action was proper under our earlier precedent, the Supreme Court’s
holding in Glenn directly repudiated the application of any form of heightened standard of
review to claims denials in which a conflict of interest is present. This supercedes our sliding-
scale approach, which constitutes a change in the level of scrutiny. Nearly every other court
of appeals to consider the sliding-scale approach or similar methodology in the wake of Glenn

                                              10
                                         No. 08-30967

but one factor among many that a reviewing judge must take into account.” Id.
at 2351.




has concluded that Glenn supercedes such alterations to the abuse of discretion standard of
review. See, e.g., Estate of Schwing v. The Lilly Health Plan, 562 F.3d 522, 525 (3d Cir. 2009)
(holding that “in light of Glenn, our ‘sliding scale’ approach is no longer valid”); Champion v.
Black & Decker (U.S.) Inc., 550 F.3d 353, 358–59 (4th Cir. 2008) (holding that, under Glenn,
“the consequence of [a finding of a conflict of interest] is not to modify the standard of
review . . . but rather to consider the conflict as but one among many factors in determining
the reasonableness of the [p]lan’s discretionary determination.”); Burke v. Pitney Bowes Inc.
Long-Term Disability Plan, 544 F.3d 1016, 1025 (9th Cir. 2008) (remanding for application of
traditional abuse of discretion standard and consideration of a conflict as a factor in that
review); Doyle v. Liberty Life Assurance Co. of Boston, 542 F.3d 1352, 1359–60 (11th Cir. 2008)
(holding “that Glenn implicitly overrules our precedent to the extent it requires district courts
to review benefit determinations by a conflicted administrator under the heightened standard”
and that “the existence of a conflict of interest should merely be a factor for the district court
to take into account when determining whether an administrator's decision was arbitrary and
capricious”); Wakkinen v. UNUM Life Ins. Co. of Am., 531 F.3d 575, 581 (8th Cir. 2008)
(relying on Glenn to hold that “the existence of a conflict did not lead the [Supreme Court] to
announce a change in the standard of review” and that “[w]e are to review an administrator’s
discretionary benefit determination for abuse of discretion”). But see Weber v. GE Group Life
Assurance Co., 541 F.3d 1002, 1010–11 (10th Cir. 2008) (holding that the sliding scale
approach mirrors Glenn’s approach). We join the majority of courts of appeals in holding that
after Glenn, we no longer apply a “sliding scale” standard of review.
        Nonetheless, much of our “sliding scale” precedent is compatible with the Supreme
Court’s newly clarified “factor” methodology, and Glenn does not supercede that precedent to
the extent it reflects the use of a conflict as a factor that would alter the relative weight of
other factors. See Vega, 188 F.3d at 296 (adopting the sliding-scale approach because it
adheres to the use of a conflict as a factor in the abuse of discretion analysis); id. at 297 (“The
existence of a conflict is a factor to be considered in determining whether the administrator
abused its discretion in denying a claim.”); Dunn v. GE Group Life Assurance Co., 289 F. App’x
778, 782 n.2 (5th Cir. 2008) (“The [Supreme] Court’s treatment of the evaluator/payor conflict
as merely one factor in the overall abuse of discretion analysis is more closely aligned with this
court’s ‘sliding scale’ approach than the Eleventh Circuit’s ‘presumptively void’ standard.”).
        Thus, in this case, while the district court erred by altering its standard of review from
a traditional abuse of discretion standard to the more onerous modicum less deference
standard, it did not err to the extent it considered the purported conflict as a factor. Here, we
will consider the apparent conflict as one factor among the others identified by the parties in
our de novo review of whether the Plan Administrator abused its discretion.


                                               11
                                        No. 08-30967

       The parties dispute whether a conflict of interest exists in this case. The
district court concluded a conflict existed because International Paper is
responsible for funding the trust at viable levels and its Senior Vice President
is the Plan Administrator that decides claims.                   Acknowledging that “the
irrevocable funding of the trust diminishes the importance of the conflict and the
likelihood that it affected the [Plan] Administrator’s benefits decisions,” the
district court nonetheless concluded that the Plan “has not completely isolated
benefits decisions from concerns regarding the viability of the trust.”                      See
Holland, 2008 WL 4163089, at *4.
       Where, as here, the employer who funds the plan also determines
eligibility for benefits, a structural conflict of interest exists. See Glenn, 128 S.
Ct. at 2348.4 Nonetheless, the specific facts of the conflict will dictate its
importance. As the Supreme Court explained in Glenn:




       4
         “Until recently, this bare assertion was insufficient to establish a conflict of interest
claim”; yet, after Glenn, “we must take that conflict into consideration.” Crowell, 541 F.3d at
311–12; see also Stone, 2009 WL 1479405, at *9 n.3 (“Metropolitan Life did, however, alter how
this Circuit determines whether a conflict of interest exists.”). In Burke, the Ninth Circuit
explained:
       In light of [Glenn] . . . we disagree with those cases [that support the proposition
       that there is no conflict of interest when plan benefits are paid out of a trust]
       and hold that even when a plan’s benefits are paid out of a trust, a structural
       conflict of interest exists that must be considered as a factor in determining
       whether there was an abuse of discretion. We reach this conclusion because,
       even though benefits are not paid directly by [the employer], [it] obviously still
       has a financial incentive to keep claims’ experience [sic] under the [p]lan as low
       as possible—the less the [t]rust pays out as benefits, the less [the employer] will
       ultimately need to contribute to the [t]rust to maintain its solvency. Thus,
       although the impact may be less direct, there is nonetheless a close relationship
       between benefits paid by the [t]rust and the money [the employer] must provide
       from its general assets to fund the [t]rust.
544 F.3d at 1026.

                                               12
                                  No. 08-30967

      The conflict of interest . . . should prove more important (perhaps of
      great importance) where circumstances suggest a higher likelihood
      that it affected the benefits decision, including, but not limited to,
      cases where an insurance company administrator has a history of
      biased claims administration. It should prove less important
      (perhaps to the vanishing point) where the administrator has taken
      active steps to reduce potential bias and to promote accuracy, for
      example, by walling off claims administrators from those interested
      in firm finances, or by imposing management checks that penalize
      inaccurate decisionmaking irrespective of whom the inaccuracy
      benefits.
Id. at 2351.
      Here, International Paper established the trust to pay benefits, and it
makes periodic contributions to the trust. International Paper’s contribution to
the trust will necessarily increase if the total amount due on awarded claims
exceeds the actuarially anticipated amounts. Nonetheless, International Paper’s
contributions are irrevocable and non-reversionary and the Plan’s assets are not
International Paper’s assets. Thus, a decision to pay benefits does not directly
affect International Paper’s bottom-line. In effect, the creation of the trust
diminishes, but does not entirely negate, the impact of that conflict. See Lance
v. Ret. Plan of Int’l Paper Co., No. 08-1295, 2009 WL 1497493, *4 (4th Cir. May
29, 2009) (“Because the Plan’s benefits are funded by a separate trust to which
International Paper does not have access for its own purposes, the Plan does not
have significant incentives to benefit itself by denying benefits.” (quotation
marks omitted)). In addition, the Plan has taken other steps to minimize any
conflict. For example, although the Plan Administrator ultimately decides
whether or not to award a claim, it submits applicants’ records to independent
medical professionals who have affirmed that they have no conflict of interest
and that their compensation “is not dependent, in any way, on the outcome of

                                       13
                                   No. 08-30967

this case.” Cf. Stone, 2009 WL 1479405, at *9 (discussing steps in a plan’s
attempts to mitigate a conflict, such as the fact that the administrator’s
compensation was not affected by the number of appeals granted or denied and
the fact that the employer did not make any attempt to influence the
administrative process).      Holland adduced no evidence in this case that
International Paper’s conflict affected its benefits decision or that it has a history
of abuses of discretion. See Glenn, 128 S. Ct. at 2351 (suggesting that conflicts
carry greater importance where the “administrator has a history of biased claims
administration”). Considering the totality of this evidence, we hold that, to the
extent International Paper’s funding of the trust and its Senior Vice President’s
role as Plan Administrator may create a conflict, that conflict is not a significant
factor in this case. See Lance, 2009 WL 1497493, at *4 (“To the extent this type
of plan structure creates any conflict of interest on the part of its administrator,
that conflict may be deemed of such little importance as to recede ‘to the
vanishing point.’”(citing Glenn, 128 S. Ct. at 2351)).
      Holland asserts two other considerations purportedly supporting the
district court’s conclusion that the Plan Administrator abused its discretion: (1)
its reliance on Dr. Achilihu because he was a cardiologist, and (2) its decision to
forgo consultation with a vocational expert. Neither argument has merit. The
claim that the Plan Administrator abused its discretion by relying on a
cardiologist is without legal merit or record support. So long as the Plan
Administrator’s decision is rationally related to the evidence, we do not require
the Plan Administrator to credit a particular area of expertise when deciding on
an applicant’s prognosis. See Black & Decker Disability Plan v. Nord, 538 U.S.
822, 834 (2003) (While “[p]lan administrators . . . may not arbitrarily refuse to


                                         14
                                   No. 08-30967

credit a claimant’s reliable evidence, including the opinions of a treating
physician[,] . . . courts have no warrant to require administrators automatically
to accord special weight to the opinions of a claimant’s physician; nor may courts
impose on plan administrators a discrete burden of explanation when they credit
reliable evidence that conflicts with a treating physician’s evaluation.”); see also
Vlass v. Raytheon Employees Disability Trust, 244 F.3d 27, 30 (1st Cir. 2001)
(“[T]he existence of contradictory evidence does not, in itself, make the
administrator’s decision arbitrary.”).        Indeed, “the job of weighing valid,
conflicting professional medical opinions is not the job of the courts; that job has
been given to the administrators of ERISA plans.” Corry, 499 F.3d at 401 (citing
Gothard v. Metro. Life Ins. Co., 491 F.3d 246, 250 (5th Cir. 2007)); see also Elliott
v. Sara Lee Corp., 190 F.3d 601, 606 (4th Cir. 1999) (“[I]t is not an abuse of
discretion for a plan fiduciary to deny disability pension benefits where
conflicting medical reports were presented.”).
      In this case, the Plan Administrator considered all of the records
submitted by Holland. The physicians who concluded that he was not totally
disabled included multiple internists, a pulmonary disease specialist, and a
cardiologist. Holland did not supplement the record with other evidence in this
case, nor can he point to evidence that the Plan Administrator failed to consider.
The Plan Administrator was not legally obligated to weigh any specific
physician’s opinion more than another’s and did not abuse its discretion by
crediting, among others, a cardiologist.
      The claim that the Plan Administrator abused its discretion by denying
Holland’s claim without consulting a vocational expert is also without merit.




                                         15
                                   No. 08-30967

ERISA does not require a Plan Administrator to seek consultation of a vocational
expert. In Duhon, we stated that:
      [W]e will not hold that absent vocational rehabilitation evidence a
      plan administrator necessarily abuses his discretion in making a
      final determination of disability. Instead, we will allow the
      reviewing court to decide, on a case-by-case basis, whether under
      the particular facts the plan administrator abused his discretion by
      not obtaining the opinion of a vocational rehabilitation expert.
15 F.3d at 1309. There, we considered an ERISA-qualifying plan that defined
disability by reference to the inability to perform “any job for which he . . . is, or
may become, qualified by training, education, or experience.” Id. at 1308. Three
reviewing physicians concluded that the plaintiff had a permanent degenerative
back condition that prevented him from returning to work as a truck driver, but
one of the physicians also concluded that the plaintiff was capable of “sedentary
to light work.” Id. at 1304. Based on these medical reports, the administrator
concluded that the plaintiff was not permanently disabled and denied him
benefits. Id. at 1308. After the district court granted summary judgment to the
plaintiff, holding that there was insufficient evidence to support this conclusion
without the opinion of a vocational rehabilitation expert, we reversed the district
court and deferred to the administrator’s decision. Id. at 1304; accord Elliott,
190 F.3d at 608 (holding that the administrator “was under no obligation to
secure additional vocational evidence” and that the plaintiff “was free to
supplement the record” with additional vocational information); Block v. Pitney
Bowes Inc., 952 F.2d 1450, 1455 (D.C. Cir. 1992) (holding that “[n]o provision”




                                         16
                                        No. 08-30967

of the plan required the administrator to “ensure the availability of an
alternative job”).5
       Here, no provision of the Plan requires the Plan Administrator to identify
or ensure the availability of other suitable employment. As in Duhon, the Plan
only requires that the Plan Administrator ensure that the applicant is capable
of performing any occupation or employment for which he is qualified by his
education, training, or experience. Ample record evidence supported the Plan
Administrator’s denial of benefits without the necessity of obtaining a vocational
rehabilitation expert. It is undisputed that the Plan Administrator was entitled
to conclude that Holland is capable of performing light to sedentary work based
on the records submitted by Dr. Sonne, Dr. Fraser, Dr. Achilihu, and Dr.
Calhoun. The Plan Administrator did not abuse its discretion in concluding that
Holland’s training and experience rendered him capable of performing sedentary
to light work. Holland previously served for two years as a dispatcher, which he
admitted was light work. Although the district court may disagree with that
classification, the Plan Administrator, not the district court, is in the best
position to balance conflicting evidence about the occupational requirements of
various positions with the applicant’s employer and in the relevant community.
Gothard, 491 F.3d at 250 (“We cannot say that [the administrator’s finding that
a job was available] is sustained by our experience or that it does not conflict
with our own judgment of what is required of [the sedentary position] . . . . [The
Plan]’s decision may not be correct, but we cannot say that it was arbitrary.”).


       5
         In fact, the requirement of consultation with a vocational expert is unique to the Social
Security Act. See, e.g., Conley v. Pitney Bowes, 176 F.3d 1044, 1050 (8th Cir. 1999) (holding
that “[t]his procedure . . . is the special creature of social security” and “has no relevance to”
an ERISA case).

                                               17
                                    No. 08-30967

      Overall, considering the potential conflict of interest as a minimal factor,
the evidence is more than sufficient to support the Plan Administrator’s exercise
of its discretion against the challenges raised by Holland. Cf. Dutka ex rel.
Estate of T.M. v. AIG Life Ins. Co., --- F.3d ----, 2009 WL 1800139, *2 n.6 (5th Cir.
June 24, 2009) (“[I]n light of the evidence supporting the plan administrator’s
decision, the conflict of interest is not a ‘tiebreaking’ factor.”).
                               III. CONCLUSION
      For the above-specified reasons, we REVERSE the district court’s
judgment awarding Holland benefits and attorney’s fees and REMAND for entry
of judgment in favor of the Plan. Costs shall be borne by Holland.




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