     Case: 09-51000       Document: 00511129029        Page: 1     Date Filed: 06/02/2010




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

                                                  FILED
                                                                            June 2, 2010

                                      No. 09-51000                          Lyle W. Cayce
                                    Summary Calendar                             Clerk



DIANA KELLER,


                                                   Plaintiff - Appellant

v.

AT&T DISABILITY INCOME PLAN,


                                                   Defendant - Appellee




                     Appeal from the United States District Court
                          for the Western District of Texas
                               USDC No. 5:08-CV-568


Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
        This    is   an    appeal    from    the    district     court's   order    granting
Defendant/Appellee         summary      judgment      on   Plaintiff/Appellant's      ERISA
disability claims. Finding no error, we AFFIRM.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 09-51000   Document: 00511129029      Page: 2    Date Filed: 06/02/2010

                                    No. 09-51000

1.      Keller first argues that the plan administrator erred by denying her short-
        term disability benefits under the Plan. However, we agree with the
        district court that the physician reports in the record provide sufficient
        evidence to support the administrator's decision. Moreover, Appellant's
        evidence considered with the extensive medical evidence before the
        administrator do not necessarily show that her condition prevented her
        from performing her job duties. The administrator's decision is entitled
        to deference. See Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168
        F.3d 211, 215 (5th Cir. 1999).
2.      Appellant also argues that she was denied "a full and fair review" of her
        disability claims in violation of 29 U.S.C. § 1133(2). Specifically, Keller
        argues that the administrator changed its grounds for denying benefits
        based on new evidence introduced after the denial but before appeal. The
        introduction of new evidence after a denial of claims does not restart the
        review process. See Cooper v. Hewlett-Packard Co., 592 F.3d 645, 654 (5th
        Cir. 2009). Moreover, an administrator does not unlawfully change the
        basis of its review if it concludes that the new evidence fails to contradict
        or merely supports its original assessment. Id. In the instant case, it was
        not the plan administrator, but Keller, who changed her grounds for
        seeking benefits on appeal by introducing evidence of an intervening
        accident. After considering Keller's additional evidence and the reports
        of the reviewing physicians, the administrator affirmed its original
        determination that Keller remained capable of performing her job duties,
        despite the intervening accident.          We therefore hold that the
        administrator has substantially complied with ERISA, and "the purpose
        of § 1133 has been fulfilled." Id. (cite and quotation marks omitted).
AFFIRMED.



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