                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 07-1390



ELLSWORTH LARSON,

                      Plaintiff - Appellant,

           v.


OLD DOMINION FREIGHT LINE, INC., Employee          Benefit   Plan;
BENEFIT MANAGEMENT SERVICES, INCORPORATED,

                      Defendants - Appellees.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:06-cv-00328-JAB)


Argued:   March 20, 2008                        Decided:   May 13, 2008


Before WILKINSON and KING, Circuit Judges, and C. Arlen BEAM,
Senior Circuit Judge of the United States Court of Appeals for the
Eighth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


John Kenneth Koontz, LEWIS & DAGGETT, P.A., Winston-Salem, North
Carolina, for Appellant. Andrew Sampson Lasine, KEZIAH, GATES &
SAMET, High Point, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      In this ERISA case, the district court dismissed Ellsworth

Larson’s claim challenging Old Dominion Freight Line’s termination

of    Larson’s   long-term   disability      benefits.      After    careful

consideration, we affirm the district court.



                                    I.

      Old Dominion Freight Line, Inc., (“Old Dominion”) provides

long-term disability benefits to qualified participants through its

employee benefit plan (the “Plan”). Plan participants are eligible

for long-term disability benefits if they are “totally disabled.”

The Plan defines total disability as follows:

      Total disability, as it applies to this benefit, shall
      mean that you are prevented solely by an illness or
      injury from performing the regular and customary duties
      of your employment. You do not have to be confined to
      your home, but must be under the regular and continuing
      care of a physician.    Beginning 24 months after the
      disability began, to be considered to be totally
      disabled, you must not be able to engage in any gainful
      occupation for which you are reasonably qualified by
      education, training or experience.

In addition, the Plan gives the plan administrator, in this case,

Old     Dominion,   “sole    discretionary     authority     to     determine

eligibility for plan benefits.”

      Ellsworth Larson was an Old Dominion truck driver for over

twenty years, and thus a Plan participant.               In December 2001,

Larson reported experiencing significant lower back and right leg

pain.    An MRI showed a herniated disc and epidural fibrosis (scar

                                    2
tissue around the nerves in the back), and Larson subsequently

filed a disability claim. Larson thus started to receive long-term

disability benefits under the Plan.

     In early 2004, because two years had passed since Larson first

reported his back injury, the requirements for receiving long-term

disability benefits under the Plan changed.          Benefit Management

Services, Inc. (“BMS”), hired by Old Dominion as the Plan’s claims

administrator,    thus   decided   to   reevaluate   Larson’s   level    of

disability.    Although Larson’s treating physician continued to

believe that Larson was unable to perform any work, partly because

of Larson’s self-reported levels of pain, a functional capacity

evaluation (“FCE”) and an independent medical examiner both found

that Larson was capable of sedentary employment.          BMS therefore

notified Larson via letter that his benefits were being terminated

effective September 30, 2004.

     Larson,     through   counsel,     subsequently    requested       the

documentation supporting the benefit termination, and BMS sent

Larson a copy of his FCE and the independent medical examiner’s

report.   Larson then appealed the termination decision.         At this

time, Larson supplemented the record with a sworn affidavit in

which he claimed that he does not do “any bending or stooping” and

that the “only thing” he was able to carry at the grocery store was

“something light like a loaf of bread.”




                                    3
     In the course of considering this appeal, BMS arranged for

video surveillance of Larson.       In March 2005, three weeks after

Larson filed his affidavit, Larson was taped picking up large,

heavy bags of fertilizer at Lowe’s, loading them into his vehicle,

unloading and carrying them, pouring the contents into a spreader,

walking behind the spreader for two hours, and stooping to move

objects as needed.      Larson did not limp or otherwise show limited

mobility while performing this yard work.

     In April 2005, BMS sent Larson a letter notifying him that his

appeal   had   been     denied.    Larson’s   counsel   requested   the

documentation relied upon to deny the appeal, and thus learned

about the video.      Larson then filed a second appeal, supplementing

his file was a second sworn affidavit and a note from his treating

physician.     Both Larson’s affidavit and his physician’s note

emphasized that Larson’s back pain ebbed and flowed, and that, even

if he was at times able to engage in strenuous work for a couple of

hours, he was still unfit for any form of meaningful employment.

     In December 2005, Larson’s second appeal was denied.       Unlike

Larson’s two previous denial letters, which came from BMS, this

letter came from Old Dominion’s Director of Employee Benefits. The

letter lays out in detail the basis for the benefits termination:

Larson’s performance on the FCE, the independent medical expert’s

opinion, and the surveillance video. The letter also considers the

opinion of Larson’s treating physician, stating that Old Dominion


                                    4
did not find the treating physician’s assessment dispositive, since

it was at least partly based on Larson’s self-reports of pain --

self-reports that were brought into question by the surveillance

video.

     In April 2006, Larson filed a complaint against Old Dominion

and BMS (collectively, “the defendants”) in the Middle District of

North Carolina pursuant to the Employee Retirement Income Security

Act (“ERISA”). Larson argued that the defendants failed to provide

a full and fair review of his claim on appeal, and that the

defendant’s denial of his benefits was unreasonable.

     The parties filed cross-motions for summary judgment, and, in

February       2007,   a   magistrate    judge    issued    a   lengthy    opinion

recommending that the defendants’ motion be granted and Larson’s

motion    be    denied.      Larson     filed    several    objections     to   the

magistrate’s report, and, after reviewing Larson’s objections and

the magistrate’s recommendations, the district court made a de novo

determination to dismiss Larson’s claim with prejudice.                    Larson

subsequently filed a timely appeal, which we now review.



                                        II.

     As    a    threshold    matter,    the     parties    disagree   as   to   the

appropriate standard of review.           We need not resolve this question

because, for the reasons stated, the administrator’s rejection of

Larson’s claim would be sustained under any standard.


                                         5
                                     A.

       First,   Larson   contends    that    the     process     underlying     the

defendants’ termination decision was flawed.               As evidence of this,

Larson points to the fact that the defendants failed to comply with

ERISA’s procedural requirements. In particular, Larson argues that

the defendants failed to disclose information related to his claim,

see 29 C.F.R. § 2560.503-1(h) (2007), and to provide sufficient

notification of the reasons for the denial of his appeal, see id.

§   2560.503-1(j).       In   addition,     Larson      also    argues   that   the

defendants improperly “afford[ed] deference to the initial adverse

benefit determination” in denying his appeals.                   Id. § 2560.503-

1(h)(3)(ii).

       We   reject   Larson’s   arguments.         As    the    magistrate   judge

recognized in his opinion, it is well-established that failure to

technically comply with all of ERISA’s procedural requirements does

not automatically invalidate an otherwise sound denial of benefits.

See, e.g., Ellis v. Metropolitan Life Ins. Co., 126 F.3d 228, 238

(4th Cir. 1997); Brogan v. Holland, 105 F.3d 158, 165 (4th Cir.

1997). “Substantial compliance” is typically sufficient. Sheppard

& Enoch Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120, 127

(4th    Cir.    1994)    (internal   quotation          marks    omitted).       To

substantially comply with ERISA’s regulations, an administrator

must supply the claimant “with a statement of reasons that, under

the circumstances of the case, permitted a sufficiently clear


                                       6
understanding of the administrator’s position to permit effective

review.”     Brogan,   105   F.3d    at    165   (internal   quotation   marks

omitted).

     In this case, the defendants complied with this standard.

Even if BMS’s letters terminating Larson’s benefits and denying

Larson’s first appeal were insufficient, Larson was provided with

all information relevant to his claim on request. Furthermore, Old

Dominion’s    letter   denying      Larson’s     second   appeal   thoroughly

outlined Old Dominion’s reasons for affirming the prior termination

decision.

     We thus conclude that Larson possessed a “sufficiently clear

understanding of the administrator’s position,” and that he was

therefore able to effectively appeal his benefits termination.

Indeed, Larson filed two lengthy administrative appeals, and does

not bring to our attention any information that he would add to the

administrative record before us.

     Likewise, there is nothing in the record other than Larson’s

conclusory assertion indicating that the defendants improperly

“defer[red] to the initial adverse benefit determination.” Rather,

Old Dominion’s analysis and statements in the letter denying

Larson’s second appeal indicate that Larson’s claims were given a

fresh look.     Larson has simply not shown that the defendants

committed any procedural errors that warrant even a remand.




                                       7
                                        B.

      Second, Larson also claims that the defendants substantively

erred in terminating his benefits.              To support his claim, Larson

contends   that    the    defendants         both   undervalued    the   evidence

supporting his claim -- chiefly, the MRI results, the opinion of

his treating physician, and his self-reports -- and overestimated

the   importance    of    the   FCE    and    the   surveillance    video.     In

particular, Larson argues that the FCE and the surveillance video

only provided a “snapshot” of his true abilities, and that this is

insufficient to terminate his benefits. See Stup v. Unum Life Ins.

Co., 390 F.3d 301, 309-11 (4th Cir. 2004) (FCE); Hines v. Unum Life

Ins. Co., 110 F. Supp. 2d 458, 463-64 (W.D. Va. 2000) (surveillance

video).

      We again disagree.        It is not error for a plan administrator

to deny benefits when conflicting evidence is presented.                       See

Elliott v. Sara Lee Corp., 190 F.3d 601, 606 (4th Cir. 1999).

While Larson’s MRI results support the opinion of his treating

physician, an independent medical examiner looked at the same MRI

results and concluded that Larson could perform sedentary work, and

an ERISA plan administrator is not required to show a treating

physician any special deference.               See Black & Decker Disability

Plan v. Nord, 538 U.S. 822, 834 (2003).                   Moreover, the other

evidence   in     the    record   --    specifically,      the     FCE   and   the




                                         8
surveillance     video   --   strongly   supports   Old   Dominion’s

determination.

     As the magistrate judge emphasized, the surveillance video is

particularly damaging to Larson’s claim.*      As noted, the video

showed Larson carrying heavy bags, performing two hours of yard

work without a limp, and stooping to move objects as needed.    Not

only does this video demonstrate that Larson can engage in physical

activity far more strenuous than sedentary employment, but it also

directly contradicts Larson’s sworn affidavit submitted with his

first appeal. This calls into question the credibility of Larson’s

self-reports of pain.    Given this video, and the other evidence in

the record, we conclude that Old Dominion’s position is soundly

based, and that Old Dominion therefore did not err in denying

Larson’s claim.



                                 III.

         For the foregoing reasons, we find that Old Dominion’s

decision to terminate Larson’s benefits was both procedurally and




     *
      Larson argues that the defendants initiated surveillance
without sufficient justification.     We disagree.   As defendants
argue in their brief, Larson’s affidavit accompanying his first
administrative appeal contained strong statements about his level
of disability (unable to lift anything more than a loaf of bread,
cannot stoop, etc.).        It cannot be unreasonable for an
administrator to want verification before taking such statements at
face value, particularly when they are a vital part of the
claimant’s evidence of disability.

                                  9
substantively   proper.   We   thus   dismiss   Larson’s   claim   with

prejudice.   The judgment of the district court is

                                                            AFFIRMED.




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