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

                                                 FILED
                                                                            March 9, 2009

                                       No. 07-11001                    Charles R. Fulbruge III
                                                                               Clerk

LAUREN BRAY,

                                                    Plaintiff-Appellee-Cross Appellant
v.

FORT DEARBORN LIFE INSURANCE COMPANY

                                                 Defendant-Appellant-Cross-Appellee




                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-cv-00560


Before KING, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       The opinion in this case filed on February 17, 2009, is withdrawn and the
following opinion is substituted therefor.
       Plaintiff-Appellee-Cross Appellant Lauren Bray brought this suit against
Defendant-Appellant-Cross Appellee Ford Dearborn Insurance Company
pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§
1001–1461. Bray initially received disability benefits under an ERISA plan with
Fort Dearborn because she was no longer able to perform her own occupation

       *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
                                   No. 07-11001

(hereinafter “own occupation” benefits).       Fort Dearborn terminated those
benefits. Fort Dearborn did not consider granting other benefits under the plan
available to Bray if she had been unable to perform any other occupation after
24 months of receiving “own occupation” benefits (hereinafter “any other
occupation” benefits). Bray sought to recover the “own occupation” benefits she
was denied, which cover a period of seven months, and the “any other
occupation” benefits for which she claims she was eligible.
        Following a bench trial, the district court found that Fort Dearborn’s
decision to terminate Bray’s “own occupation” benefits was an abuse of
discretion. The court remanded the “any other occupation” benefits issue to the
plan administrator to determine in the first instance. Here, Fort Dearborn
appeals the award of “own occupation” damages. Bray cross-appeals the decision
to remand the question of “any other occupation” benefits to the plan
administrator.
        The parties are familiar with the facts of this long-term disability ERISA
case.    After considering the district court’s opinion, the briefing, and oral
arguments, we affirm.      The district court did not err in finding that Fort
Dearborn’s decision to terminate Bray’s “own occupation” benefits was an abuse
of discretion.
        It is uncontested here that the plan administrator has a conflict of
interest. As such, its determination receives less deference. See Vega v. Nat’l
Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999) (“In such cases, we are
less likely to make forgiving inferences when confronted with a record that
arguably does not support the administrator’s decision.”). Contrary to Fort
Dearborn’s arguments on appeal, the opinions of its consulting physicians are
not “substantial evidence” supporting the denial of benefits because they were
based only on a surveillance video depicting activity not comparable to Bray’s
work duties and an alleged lack of objective medical evidence supporting her

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complaints of pain. As the district court found in its thorough opinion, the
surveillance video was inconclusive, generally consistent with Bray’s claimed
limitations, and did not adequately address her ability to perform the duties of
her own occupation. See Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337,
346–47 (5th Cir. 2002) (plan administrator “unfairly equate[d]” the plaintiff’s
known abilities with the more strenuous duties of her occupation, reflecting
“plain lack of objectivity” and an abuse of discretion). Moreover, evidence from
Bray’s treating physicians established the existence of an objective condition
that could cause the pain of which Bray complained.
      Finally, the district court did not err in remanding Bray’s “any other
occupation” claim to the plan administrator for an initial determination of her
entitlement to benefits. See Schadler v. Anthem Life Ins. Co., 147 F.3d 388,
395–99 (5th Cir. 1998).
      Accordingly, the judgment of the district court is AFFIRMED. Bray’s
request for attorney’s fees incurred in connection with this appeal is granted.
We REMAND the case to the district court for the limited purpose of
determining the amount of those fees and any related expenses and entering an
appropriate order.
      Judgment AFFIRMED. Case REMANDED with instructions.




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