                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-1248


THOMAS F. PIEPENHAGEN,

                Plaintiff - Appellant,

           v.

OLD DOMINION FREIGHT LINE, INC., Employee Benefit Plan,

                Defendant - Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     James C. Turk, Senior
District Judge. (7:08-cv-00236-jct)


Argued:   March 24, 2010                 Decided:   September 16, 2010


Before MICHAEL and DAVIS, Circuit Judges, and Eugene E. SILER,
Jr., Senior Circuit Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Richard F. Hawkins, III, HAWKINS LAW FIRM, Richmond,
Virginia, for Appellant.   Monica Taylor Monday, GENTRY, LOCKE,
RAKES & MOORE, Roanoke, Virginia, for Appellee.       ON BRIEF:
Michael A. Cleary, Roanoke, Virginia, for Appellant.     Eunice
Park Austin, W. David Paxton, GENTRY, LOCKE, RAKES & MOORE,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       This   appeal     arises    under       the      Employee      Retirement        Income

Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001, et seq. Upon

its    consideration      of    cross-motions           for      summary       judgment,     the

district      court    sustained       the     denial       of   long      term    disability

benefits to Thomas F. Piepenhagen (“Appellant”), a former truck

driver, by the Old Dominion Freight Line, Inc., Employee Benefit

Plan (“the Plan” or “Appellee”). On appeal, Appellant contends

that    the   district    court        erred       in   concluding         that    Appellee’s

denial of benefits was consonant with the dictates of ERISA. We

discern no error in the district court’s review of Appellant’s

contentions and therefore we affirm.



                                             I.

       On   February     8,    2005,     Appellant          suffered       a    heart   attack

while operating a tractor-trailer rig. Immediately thereafter,

he was hospitalized and underwent medical treatment. Appellant

never returned to work as a truck driver. Over the next two

years,      Appellant    made     regular          visits     with    his       primary     care

physician, Dr.         Vashist Nobbee, and his cardiologist, Dr. Andrew

J.     Maiolo,   who     undertook       responsibility              for       management     of

Appellant’s cardiac condition. Virtually all of the material in

the    administrative         record    of     Appellant’s           claim       consists    of

reports and records generated by those two physicians.

                                               2
       In October 2005, the Social Security Administration awarded

Appellant benefits (“SSA award”) based on its determination that

he was totally disabled. (Under the terms of the Plan, Appellant

was required to seek Social Security benefits as a precondition

to    his   receipt    of    long     term       disability      benefits.)       In    the

meantime, Appellee paid short term and “same occupation” long

term disability benefits to Appellant from February 2005 through

December 2005, when it suspended payments. Appellee based its

suspension      of     payments       on         its    assertion       that      certain

psychological     or    psychiatric        “comorbidities”            (which    were    not

covered under the terms of the Plan) were causally related to

Appellant’s inability to work.

      After   Appellant      exhausted       his       administrative        remedies    as

required by the Plan he filed suit on or about November 6, 2006,

in state court (without mentioning ERISA) seeking restoration of

benefits.     Appellee      removed    the       case    to   the     federal    district

court for the Western District of Virginia. In due course, the

parties reached a settlement as to Appellant’s claim for “same

occupation” long term disability benefits. In accordance with

the   parties’       settlement     agreement,          on    April    20,     2007,    the

district court (1) dismissed with prejudice the claim for “same

occupation”      benefits;     and     (2)       remanded      the    claim     for    “any

occupation” benefits to the Plan for plenary review.



                                             3
       In   the    post-remand   administrative         proceedings,     Appellee

determined that Appellant had not carried his burden to show

that   he   was    totally   disabled    under    the    terms    of   the   Plan.

Accordingly,      after   Appellant     had   exhausted    all   administrative

remedies available to him under the Plan, he filed suit on or

about February 27, 2008, again in state court. The case was

removed once again to federal court. The administrative record

was lodged with the district court and the parties filed cross-

motions for summary judgment. The district court conducted a

hearing     on    the   cross-motions    on   December     4,    2008,   and,   on

February 27, 2009, filed a comprehensive memorandum opinion and

order granting Appellee’s motion for summary judgment, denying

Appellant’s motion for summary judgment, and entering judgment

in favor of Appellee.        Piepenhagen v. Old Dominion Freight Line,

Inc. Employee Benefit Plan, 640 F.Supp.2d 778 (W.D.Va. 2009).

       Appellant filed this timely appeal from the judgment of the

district court.



                                        II.

       We begin with a summary of some of the evidence in the

record bearing on Appellant’s course of treatment and prognosis

after his heart attack. In so doing, we bear in mind that (1) no

issue is presented in this appeal as to short term disability or

“same occupation” long term disability, and (2) psychiatric “co-

                                         4
morbidities”    may    not,   under    the   circumstances         here,    bolster

Appellant’s claim.

     On   March   3,   2005,    within      weeks    of   his     cardiac       event,

Appellant visited Dr. Nobbee, who noted that the Appellant “was

doing well” but “will remain off work” until May, when his next

doctor’s visit was scheduled. Dr. Nobbee also noted that it “may

be worthwhile to keep him off work until his cardiac status is

fully controlled given his strong risks.” On March 9, 2005, Dr.

Maiolo    examined     Appellant      and    noted    that      he    was       “doing

reasonably well.” Appellant informed Dr. Maiolo that he planned

to return to work in July 2005.” Dr. Maiolo noted that the

Appellant had scheduled a full physical with Dr. Nobbee in July

2005, and that the Appellant “can, at that time, be cleared to

return to work.”

     During    Appellant’s     visit   to    Dr.    Nobbee   on      May   5,    2005,

Appellant was “doing quite well” but showing personality and

mood difficulties. On June 16, 2005, Dr. Nobbee completed an

Attending Physician’s Statement and indicated that Appellant was

“totally disabled” for “any occupation” but that he “may be able

to return to work in July 2005. During a July 26, 2005 visit,

Dr. Nobbee found that Appellant had “recovered well” from his

cardiac event but was concerned about Appellant’s psychological

health. Dr. Nobbee recommended a psychological evaluation prior



                                       5
to releasing the Appellant to work. During a November 1, 2005

visit, Dr. Nobbee diagnosed Appellant as doing well.

     On    January       9,    2006,       Dr.       Nobbee    submitted         a     letter   in

support of Appellant’s “same occupation” long term disability

claim,    indicating          that    Appellant         has        “several      comorbidities

including        advanced          coronary          artery        disease       as     well    as

significant symptoms of depression and anxiety related to his

medical    comorbidities.”           Dr.     Nobbee         recommended        that     permanent

disability be awarded Appellant because of “his inability to

continue    in     his    present       employment            as    a    truck    driver.”      On

January 16, 2006, the Plan’s agent, ACS Benefit Service (“ACS”),

asked     Dr.    Nobbee       to    complete         another        Attending         Physician’s

Statement.       In   response,         on       January       30,       2006,        Dr.   Nobbee

indicated that Appellant had impairments based on his cardiac

condition       and   major        depressive         disorder          and    hyperlipidemia,

which     were    unimproved.          He     further         noted       that        Appellant’s

prognosis       was   “permanently           disabled,”            adding      that     Appellant

would never return to his “regular occupation.”

     On     September          18,     2006,          Dr.     Maiolo          again     evaluated

Appellant, and described him as “doing reasonably well.”                                        On

November 13, 2006, Dr. Nobbee examined Appellant and indicated

that he was “doing quite well,” had no “active complaints,” and

that his “[d]epression screen . . . was negative.” Dr. Maiolo

also assessed Appellant on February 13, 2007, and found that he

                                                 6
was “was doing reasonably well.”                He added that Appellant was

experiencing     chest    discomfort       on    occasion,    but   that      such

discomfort     was   remedied    by    medication.      Appellant     was      not

suffering from any psychological impairments. On April 24, 2007,

Dr.   Maiolo   completed    a   Cardiac     Residual    Functional     Capacity

Questionnaire (“CRFC”). In it, he indicated that Appellant was

“capable of low stress jobs.”

      The    evidence    emphasized    most       heavily    by   Appellant     as

demonstrating that he established his entitlement to long term

disability benefits is seen in this summary found at page 12 of

his opening brief, consisting of counsel’s interpretation of Dr.

Maiolo’s opinions as derived from the CRFC:

           That he was limited to walking no more than two
      blocks without rest;

           That he was limited to occasionally lifting no
      more than twenty pounds;

           That he must avoid even moderate exposure to
      extreme cold or heat, wetness, humidity, noise, fumes
      and hazards;

           That he could sit no more than forty-five minutes
      before needing to get up;

           That he could stand no more than forty-five
      minutes before needing to sit down or walk around;

           That he would need to take unscheduled breaks
      during an eight-hour work shift, that such un-
      scheduled work breaks would occur two to three times
      per eight-hour work day, and that each rest period
      would have to be at least twenty minutes; and



                                       7
            That he would experience good days and bad days
       based on his recurring chest pain and that he would
       miss approximately one day per month as a result of
       this impairment.

       On June 19, 2007, Appellant submitted his remand claim for

benefits      under   the    “any   occupation”         provision    of   the   Plan,

supported, in particular, by Dr. Maiolo’s CRFC. He also included

as a basis for his claim the loss of three fingertips on his

right hand resulting from a 1988 accident while working as a

machine operator. Appellant asserted that his hand injury made

“any writing difficult” and affected his ability to “pick up

small objects” and grasp heavy items with any strength.



                                       III.

       In ERISA cases as in others, we review the district court’s

grant of summary judgment de novo. Ellis v. Metropolitan Life

Ins.   Co.,    126    F.3d   228,   232    (4th    Cir.     1997).   In   doing    so,

however,      where   the    administrator        or    fiduciary    of   an    ERISA-

covered plan exercises discretionary authority granted by the

plan, as is the case here, this court (like the district court)

reviews    that       determination       under        an   abuse    of   discretion

standard. Metropolitan Life Ins. Co. v. Glenn, 128 S. Ct. 2343,

2347-48 (2008) (citing Firestone Tire & Rubber Co. v. Bruch, 489

U.S. 101, 111-13 (1989)); Ellis, 126 F.3d at 232 (collecting

cases). Under such a deferential standard of review, this court


                                          8
will not disturb the administrator or fiduciary’s decision if it

is reasonable, even if this Court -- assuming, arguendo, that we

had initially heard the case -- would have come to a different

conclusion. Id.         A reasonable decision is one where “the result

of   a    deliberate,     principled    reasoning       process    and   if    it   is

supported by substantial evidence.” Brogan v. Holland, 105 F.3d

158, 161 (4th Cir. 1997) (quotation omitted).

         We    have   recognized    that       in   Glenn,   the   Supreme      Court

clarified “that the administrator’s conflict of interest did not

change        the   standard   of   review     from   the    deferential      review,

normally applied in the review of discretionary decisions, to a

de novo review, or some other hybrid standard.” Carden v. Aetna

Life Ins. Co., 559 F.3d 256, 260 (4th Cir. 2009); see also

Champion v. Black & Decker (U.S.) Inc., 550 F.3d 353, 357-59

(4th Cir. 2008).         Instead, the abuse of discretion determination

is made by weighing the conflict of interest along with “several

different, often case-specific, factors.” Glenn, 128 S.Ct. at

2351. Our precedents teach that the weight accorded a conflict

of interest depends on the plan’s language as well as other

factors, such as:

         (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

                                           9
      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) the
      fiduciary’s motives and any conflict of interest it
      may have.

Booth v. Wal-Mart Stores, Inc. Associates Health & Welfare Plan,

201 F.3d 335, 342-43 (4th Cir. 2000).



                                          IV.

      On    appeal,     Appellant      takes        aim    at    four    aspects       of   the

district court’s assessment of the reasonableness of Appellee’s

denial      of   “any   occupation”           long       term    disability       benefits,

namely, that the district court erred: (1) in concluding that

the decisionmaking process was reasoned and principled, and that

substantial evidence supported the denial of benefits; (2) in

concluding       that   the     Plan    was        not    required      independently        to

obtain evidence of Appellant’s vocational capacity to support

the   Plan’s     determination         that    he        could   engage    in     a   gainful

occupation       for    which     he    was        reasonably        qualified        by    his

education, training, and experience; (3) in concluding the Plan

was   not    required     to    obtain        an    Independent         Medical       Examiner

(“IME”) evaluation to justify the denial of the claim; and (4)

in assigning inadequate negative weight to the Social Security

Administration’s         determination             that     Appellant       was       totally

disabled and to Appellee’s related conflict of interest.


                                              10
        The gravamen of these contentions, taken as a whole, is the

assertion       that    the    district    court      erred    in     failing         to   find

Appellee’s decision to deny benefits unreasonable because the

court    relied       exclusively    on       material     submitted           by    Appellant

himself.       Put    differently,      the     argument      is    that       the    material

submitted by Appellant established a prima facie case of total

disability as a matter of law. Thus, according to Appellant,

Appellee abused its discretion in denying the claim without its

own     independently-obtained            evidence       to        meet    the        evidence

provided       by    Appellant,   and     the      district    court       erred      when   it

failed so to conclude. We reject these contentions as we are not

persuaded that the district court misapplied our precedents.

                                          A.

        This    court    has    clearly       held    that     when       an    ERISA      plan

discontinues an employee’s benefits after totally disregarding

some portion of a physician’s opinion that is favorable to the

employee’s claim and seizing upon that portion which is adverse

to the employee’s claim, such decisionmaking is unreasonable.

See Donovan v. Eaton Corp., 462 F.3d 321, 329 (4th Cir. 2006).

Nevertheless, we have never required a plan to recite every fact

found in doctors’ reports and evaluations.

        Here, the Plan provides for long-term disability benefits

to employees who suffer from a “total disability.”                                   Under the

Plan, “total disability” is defined in the following manner:

                                              11
       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 enjoyment. 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 first 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. You are not considered to be totally
       disabled if at any time you engage in your own or any
       other occupation for compensation or profit.

       In light of this definition, it is evident to us (as it was

to    the   district    court)    that      the     Plan      fully    considered          the

totality of evidence presented by the Appellant in connection

with his “any occupation” disability claim. In a July 3, 2007

letter, Michele Ackerman – Manager of Employee Benefits for the

Plan – addressed the Appellant’s remand claim and dismissed his

assertion that he was physically incapacitated by the loss of

three finger tips on his right hand in 1988. The Plan dismissed

this assertion because it represented “a new claim that was not

the    subject   of    or   related    to     his      prior       claim    for     physical

disability.” J.A. 190-91. Moreover, Ms. Ackerman did not believe

that   Appellant      provided    a   sufficient         rationale          for   why     this

condition prevented him from “engaging in at least sedentary

employment.” J.A. 191.           Then,      focusing          on     the     balance        of

Appellant’s submission, which dealt primarily with Dr. Maiolo’s

assessments,     Ms.    Ackerman      looked      to    the    most        recent    of    Dr.

Maiolo’s assessments. She found that, essentially, in his April

                                         12
24,   2007   CRFC,       Dr.   Maiolo     indicated        that    the    Appellant    was

“capable     of    low     stress       jobs.”          Furthermore,       Ms.    Ackerman

underscored       that    what   is     meant      by    “illness”       under   the   Plan

“means ‘bodily sickness, disease or disorder, excluding mental

/nervous     disorders,        except    to    the      extent    such    mental/nervous

disorders have a physical manifestation.’” And as such, there

was nothing in the record to undermine Dr. Nobbee’s July 26,

2005 assessment that the Appellant “had ‘recovered well from his

recent coronary artery event and physically is doing well.’”

      The district court concluded that the record demonstrates

that the Plan engaged in a “deliberate and principled reasoning

process in analyzing [Appellant’s] long-term disability claim.”

J.A. 320. It further concluded that the Plan neither ignored

evidence supportive of Appellant’s alleged total disability nor

distorted statements made by any of the physicians. The court

acknowledged that the Plan’s first denial letter did not mention

all of “Dr. Maiolo’s answers on the Cardiac Residual Functional

Questionnaire and/or the specific questions that prompted those

answer,” but that “the selected portions cited by [the Plan] do

not    mischaracterize           or      ‘ignore         the      t[h]rust’       of   the

questionnaire as a whole.” J.A. 322.

      Moreover, as found by the district court, even though Dr.

Nobbee     noted     that      the      Appellant        suffered        from    permanent

disability, Dr. Nobbee qualified these statements by noting that

                                              13
he was referring to the Appellant’s disability vis-à-vis his job

as a truck driver. J.A. 58, 71, 153. Ultimately, the district

court specifically addressed those facts that both supported and

undermined Appellant’s arguments.

      At bottom, it cannot plausibly be said that the district

court failed in its duty to assess whether Appellee gave short

shrift to any of the evidence presented by Appellant in support

of his claim. The court did not err in concluding that Appellee

did   no   such   thing;    its   related      conclusion       that   substantial

evidence    supports      the    adverse     disability     determination        was

sound.

                                        B.

      Appellant also argues that the district court erred when it

concluded that the Plan was not required to obtain vocational

evidence of his occupational skills prior to concluding that he

could engage in a gainful occupation for which he was reasonably

qualified    by    his     education,      training,      and    experience.     We

disagree.

      Under this court’s precedents, a plan is not required as a

matter of law to obtain vocational or occupational expertise in

its   evaluation     of     an    employee’s      claim.        See    LeFebre    v.

Westinghouse Elec. Corp., 747 F.2d 197, 206 (4th Cir. 1984),

overruled   by    implication     on   other    grounds    by    Black   &   Decker

Disability Plan v. Nord, 538 U.S. 822 (2003); see also United

                                        14
States Ass’n v. Social Sec. Admin., 423 F.3d 397, 404 (4th Cir.

2005). We agree with the district court that because Appellee

reasonably concluded that Appellant failed to establish a prima

facie case of long term disability, based on “reliable evidence”

contained in Appellant’s very submission, see Berry v. Ciba-

Geigy Corp., 761 F.2d 1003, 1008 (4th Cir. 1985), the Plan was

free to exercise its discretion not to procure such evidence.

Obviously,    Appellant,      on    whom    the       plan    document     indisputably

placed the burden to establish disability, could have elected to

bolster his claim by obtaining vocational evidence as a part of

his   submission     to     the    Plan.        But    here,     there     was   nothing

requiring a rebuttal showing. See Elliott v. Sara Lee Corp., 190

F.3d 601, 608 (4th Cir. 1999)               (holding that Sara Lee did not

need to secure a vocational consultant to determine if Elliot

could perform any jobs). We discern no error.

                                           C.

       Appellant next contends that the district court erred when

it    concluded    that     the    Plan    was    not    required        to   obtain   an

Independent       Medical    Examiner      (“IME”)           evaluation.      Again,   we

disagree, because as discussed above, a plan administrator has

no duty to develop evidence that a claimant is not disabled

prior to denying benefits. See LeFebre, 747 F.2d at 206. Here,

the plain language of the Plan Document states that “[t]he plan

reserves the right to have [a claimant] examined by a medical

                                           15
specialist(s)       at    any    time      after       [the     claimant]        file[s]    for

disability benefits.” J.A. 41 (emphasis and alterations added).

Nothing     in     the    language      of       the    Plan     document        or   in    our

precedents       required     Appellee          to   seek     out    IME     evidence      as    a

condition to its denial of Appellant’s claim.


                                                D.

       Finally, Appellant contends that the district court erred

by not giving appropriate weight to the award of Social Security

disability       benefits       and   to     the       Plan’s       related      conflict       of

interest. We disagree.

       We   have     held    that     barring          proof     that      the    disability

standards    for     social      security        and    the     plan    in    question      are

analogous, we would not consider an SSA award in an ERISA case.

See Smith v. Continental Cas. Co., 369 F.3d 412, 420 (4th Cir.

2004) (noting that “what qualifies as a disability for social

security disability purposes does not necessarily qualify as a

disability for purposes of an ERISA benefit plan”); Elliott, 190

F.3d at 607 (refusing to consider an SSA disability award where

such an award was not binding on the plan and “[t]here is no

indication that the definition of ‘total disability’ under the

Plan   in   any     way     mirrors     the      relevant       definition         under    the

regulations of the SSA”.). Here, there are no indicia that the

Plan   Document’s        definition        of    “total       disability”        mirrors    the


                                                16
relevant definition in the SSA’s regulations. In fact, the Plan

specifically     noted    the     difference.     In    its   February     8,   2008

denial letter, it explained:

     [T]he Plan is not governed by or subject to this
     determination since the Social Security Administration
     employs standards and guidelines that differ from the
     terms of the Plan. While this determination is not
     binding, this information has been considered. I find
     this determination unpersuasive in light of the rest
     of the record.

J.A. 201. The district court concluded that the Plan’s analysis

and resolution regarding the SSA award was reasonable in light

of the SSA’s determination that was not informed by relevant

information that only later became available.

     In light of these facts, this court must consider whether

the Plan’s treatment of the SSA determination, i.e., requiring

Appellant   to   apply     for    SSA    disability     income    benefits      as   a

condition   to   receipt     of    benefits     under    the     Plan,   and    then

concluding that he is not disabled, as potential evidence of

procedural unreasonableness and unfairness. See Glenn, 128 S.

Ct. at 2352.      In     Glenn,    the    court    of     appeals    had     “found

questionable the fact that MetLife had encouraged Glenn to argue

to the Social Security Administration that she could do no work,

received the bulk of the benefits of her success in doing so . .

. and then ignored the agency’s finding in concluding that Glenn

could in fact do sedentary work.” Id. These circumstances not

only suggested procedural unreasonableness; they also justified

                                         17
the court in according significant weight to the conflict given

that     MetLife’s        apparently       inconsistent          positions          were

financially advantageous. Id. Notably, however, the court had

observed that MetLife had preferenced a certain medical report

that favored denying benefits over other reports that suggested

a contrary conclusion, id., and indeed, although MetLife had

retained     vocational    and    medical    experts,       it    had   “failed       to

provide [its witnesses] with all of the relevant evidence.” Id.

(emphasis     added).     These   facts,     under   the     “totality         of    the

circumstances test” adopted by the majority in Glenn, see id. at

2357    (Scalia,    J.,    dissenting),      clearly    prompted         the        Glenn

majority to affirm on the merits the court of appeals’ ultimate

conclusion that MetLife’s denial of benefits was an abuse of

discretion.

       The   circumstances        in   the    case     at        bar    are     easily

distinguished      from   those   presented    in    Glenn.       Considering         the

Plan’s conflict of interest in light of the totality of the

eight Booth factors, it simply cannot be said that the Plan

acted unreasonably or unfairly. See Booth, 201 F.3d at 342-43.

Here, as we have noted, and unlike in Glenn, 128 S. Ct. at 2352,

the Plan acted reasonably in its holistic review of Appellant’s

submission and in finding reliable evidence therein supporting

its denial, and, as we have said, the Plan properly exercised

its discretion not to procure vocational and independent medical

                                       18
evidence. The record here leaves solely the conflict of interest

as an indicium of unreasonableness. Accordingly, this factor, in

isolation, is insufficient for this court to conclude that the

trial court erred in its determination.



                                V.

     Having had the benefit of full briefing and oral argument,

and having fully considered Appellant’s assignments of error, we

affirm for the reasons stated by the district court. Piepenhagen

v. Old Dominion Freight Line, Inc. Employee Benefit Plan, 640

F.Supp.2d 778 (W.D.Va. 2009).

                                                        AFFIRMED




                                19
