                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-1859


RICHARD BILHEIMER,

                Plaintiff – Appellee,

           v.

FEDERAL EXPRESS CORPORATION LONG TERM DISABILITY PLAN,

                Defendant – Appellant.

-----------------------------

GEORGE W. HICKS, JR.,

                Amicus Curiae.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    G. Ross Anderson, Jr., Senior
District Judge. (6:12-cv-00383-GRA)


Argued:   March 26, 2015                      Decided:   May 5, 2015


Before DIAZ, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: David P. Knox, FEDERAL EXPRESS CORPORATION, Memphis,
Tennessee, for Appellant. George W. Hicks, Jr., BANCROFT, PLLC,
Washington, D.C., as Court-Assigned Amicus Counsel.


Unpublished opinions are not binding precedent in this circuit.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

               Federal Express Corporation Long Term Disability Plan 1

appeals the district court’s award of summary judgment in favor

of    Richard        Bilheimer       (“Appellee”).              Following         multiple

accidents,       Appellee         applied     for      and     received      disability

benefits.        However, Appellant eventually denied further long-

term benefits -- a decision Appellee sought to have reviewed by

the   courts.        Reviewing      the     denial     of    benefits   de    novo,      the

district court held that the weight of the evidence indicated

Appellee       was   totally      disabled       and   thus    entitled      to   receive

disability benefits.

               We affirm the district court’s decision to review the

denial    of    benefits     de    novo     because    Appellee’s       claim     was    not

reviewed and denied by an entity with discretionary authority

over appeals.         We further affirm the district court’s conclusion

that Appellee is entitled to receive disability benefits because

the   district       court   did    not   err     by   determining      Appellee        fell

within the Plan’s definition of “totally disabled.”




      1
       Federal Express Corporation Long Term Disability Plan is
both a party and the proper name of the benefits plan at issue.
For clarity, we refer to it as “Appellant” when we discuss its
status as a party; we refer to it as the “Plan” when we discuss
its status as a benefits plan.



                                             2
                                                I.

                                                A.

                Federal Express Corporation (“FedEx”) established the

Plan       to   ensure      the    funding       and     availability         of    long-term

disability benefits for its employees.                          Pursuant to the Plan,

FedEx established the Retirement Plan Investment Board (“Board”)

“to    perform        the   administrative            duties    hereunder          other    than

administration of claims.”                 J.A. 460. 2         The Plan also outlines

the benefits review process, providing for initial and appellate

review of an individual’s claim.

                Aetna Life Insurance Company (“Aetna”) serves as the

claims-paying administrator for the Plan.                               As claims-paying

administrator, Aetna initially determines whether an individual

is     entitled       to    receive      benefits       under    the     Plan.         If    an

individual       is    denied      benefits      at     this   stage,    he    or     she   may

appeal the initial denial.

                Appeals of benefits denials are handled by an appeal

committee.        FedEx, the administrator of the Plan, is charged

with       appointing       this       appeal    committee.         Originally,            FedEx

appointed its internal Benefit Review Committee to serve as the

appeal      committee.            In    July    2008,    however,       the    director      of


       2
       Citations to the “J.A.” refer to the contents of the Joint
Appendix filed by the parties in this appeal.



                                                3
FedEx’s Employee Benefits Department recommended that the Board

“outsource all [long-term disability] appeals to Aetna.”                          J.A.

58-59.      The Board approved this recommendation, thus ceasing

operation     of   the   Benefit   Review    Committee.         But       the   Board’s

minutes from the meeting do not expressly state that the Board

was appointing Aetna as the appeal committee contemplated under

the Plan. 3

              To   institute   this    change,      FedEx     and    Aetna      amended

their service agreement.            Under the amended agreement, Aetna

became      “fully       responsible        for     final       appeal          benefit

determinations for the Short Term Disability Plans, and . . .

for Long Term Disability Plans.”            J.A. 65.

                                       B.

              Appellee was employed by FedEx from 1997 to 2005 and,

during this time, was a full-time senior safety specialist.                          As

a   FedEx   employee,    Appellee     participated       in   the    Plan.        While

employed by FedEx, Appellee sustained various injuries in two

separate    automobile     accidents    --    one   in   2001       and   another    in

2005.




      3
       Rather, the minutes state that the Board “approve[d] the
recommendation” to “outsource remaining long-term disability
appeals effective September 1, 2008, and effectively cease the
operation of the Benefit Review Committee.” J.A. 63.



                                        4
              The    second     accident     caused       substantial       and    lasting

injuries.       Appellee was left unable to work, prompting the end

of    his    employment    with     FedEx.        In     the    years    that    followed,

Appellee      sought    treatment     from       and     was    examined    by    numerous

doctors.       These doctors diagnosed Bilheimer with -– and treated

him for -– various medical conditions, including:

               chronic pain syndrome, degenerative disc
              disease, carpal tunnel syndrome, high blood
              pressure,     obstructive     sleep    apnea,
              temporomandibular joint disorder[,] . . .
              cervical radiculitis, and obesity. In 2008,
              a magnetic resonance imaging . . . showed
              that   [Appellee]   had   multiple  herniated
              discs. Also in 2008, [Appellee] underwent a
              nerve conduction and electromyography . . .
              study which revealed that he suffered from
              chronic cervical radiculitis and that he had
              borderline carpal tunnel syndrome.

J.A. 2.

              Appellee received short-term benefits from December 9,

2005, to June 8, 2006.            After his short-term benefits ended, he

applied      for    long-term    benefits        under    the    Plan.      He    received

temporary long-term benefits under the Plan from June 9, 2006,

to June 8, 2008.

                                            C.

              Although Appellee received twenty-four months of long-

term benefits, Aetna -- in its capacity as claims administrator

for    the    Plan    --   denied     further      benefits       because       Appellee’s

“medical      condition       [did]   not    meet        the    definition       of   Total


                                             5
Disability”    under    the    Plan.        J.A.     81.      Specifically,          Aetna

concluded    that    Appellee    failed         to   prove    that   his      disability

prevented him from engaging “in any compensable employment for

twenty-five hours per week.”                    J.A. 414.         In support of his

benefits claim, Appellee offered the medical opinions of Dr.

Peter Morris and Dr. Glendon Rougeou.                 Dr. Morris, who conducted

a   comprehensive     examination      of       Appellee     as   part   of    a   Social

Security Disability Insurance evaluation, determined “that in an

eight-hour workday, [Appellee] could be expected to stand and/or

walk for two hours at most, and to sit for four hours maximum,

with a break every hour.”           J.A. 19.          And Dr. Rougeou, who also

conducted a physical examination and provided continuous care to

Appellee, concluded Appellee was totally disabled:

            It is my opinion, based upon my medical
            education and experience and based upon my
            specific knowledge of [Appellee’s] problems
            and treatment history that he is and has
            been completely and totally disabled from
            performing any employment on a part-time
            (twenty-five hours per week) or full-time
            basis, consistent with the definition of
            disability above. I render my opinion based
            upon the cumulative effect of [Appellee’s]
            above    described   objectively   diagnosed
            medical problems and the subjective symptoms
            he suffers.

Id. at 91.

            Despite the opinions of Dr. Morris and Dr. Rougeou,

Aetna’s   peer      review    physicians         determined       Appellee     was    not

totally disabled, per the Plan’s requirements.                       See, e.g., J.A.

                                            6
309 (“[T]here is no significant objective clinical documentation

that reveals a functional impairment that would preclude the

claimant   from   engaging       in     any    compensable       employment        for   a

minimum of 25 hours a week from 6/9/08 to current.”).

           Appellee       then    sought       review   of     this     determination

through the process established in the Plan.                           Acting in its

appellate capacity per the amended service agreement, an “Aetna

Appeal   Review   Committee”          again    accepted    the    findings         of   the

Aetna doctors and upheld the initial denial of continued long-

term benefits.

                                          D.

           Appellee then filed a complaint in the district court

challenging   the   denial       of    benefits      pursuant     to    the   Employee

Retirement Income Security Act (“ERISA”).                  At the case’s outset,

Appellee and Appellant each filed a motion for partial summary

judgment    regarding       the        appropriate        standard       of     review.

Appellee claimed the district court should review the denial de

novo   because    FedEx    was    not     permitted       to   delegate       to    Aetna

discretionary     appellate       review        of   benefits         claims.           See

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)

(explaining that, when an ERISA claimant is denied benefits, the

denial of benefits is reviewed de novo “unless the benefit plan

gives the administrator or fiduciary discretionary authority to

determine eligibility for benefits or to construe the terms of

                                           7
the plan”).        Appellant claimed that FedEx modified the Plan to

provide Aetna with this authority or, in the alternative, that

FedEx   appointed        Aetna    as   the       appeal    committee.       Therefore,

Appellant argued, the abuse-of-discretion standard of review was

appropriate.

              First,     the   district      court        concluded   FedEx    was    not

authorized to delegate its discretionary authority:

              [I]n   this   case,   the   Service   Agreement
              evidences    an    explicit    delegation    of
              authority to Aetna; however, the [Plan] does
              not authorize such a delegation.         . . .
              [T]he [Plan] was not properly modified to
              allow   for   delegation;    thus,   delegation
              remains improper, even though the Service
              Agreement    explicitly     stated    that    a
              delegation had been made.

J.A.    35;    Belheimer       [sic]   v.    Fed.       Express    Corp.    Long     Term

Disability Plan, No. 6:12-00383, 2012 WL 5945042 (D.S.C. Nov.

28, 2012).         Second, the district court concluded FedEx merely

outsourced the appeals process to Aetna and did not appoint a

new appeal committee.            Accordingly, the district court reviewed

the denial of benefits de novo.

              In    a    subsequent     order       addressing        the   denial    of

benefits, the district court thoroughly reviewed the opinions

offered    by      the   myriad    doctors        and     peer   review     physicians.

First, the district court found the opinions and limitations

discussed by Dr. Morris and Dr. Rougeou “more persuasive than

those of the doctors that prepared physician review reports” per

                                             8
Aetna’s      request.          J.A.     19.         Second,     the     district       court

determined that “total disability” -- and the requirement that

Appellee be able to engage in “compensable employment” -- could

not     be    narrowly        construed,          adopting     the    Sixth      Circuit’s

interpretation of similar language:

              [T]he Court finds that the phrase “any
              compensable   employment”    should   not   “be
              construed so narrowly that an individual
              must be utterly helpless to be considered
              disabled . . . . [N]ominal employment, such
              as   selling   peanuts    or    pencils   which
              would yield only a pittance, does not
              constitute[]” compensable employment.

Id. at 22–23 (quoting VanderKlok v. Provident Life & Accident

Ins. Co. Inc., 956 F.2d 610, 615 (6th Cir. 1992)) (first and

second       alterations       in     original).          So    the     district       court

concluded       the    limitations      expressed         by   Dr.    Morris     precluded

Appellee from engaging in “compensable employment.”

              Based on these findings and conclusions, the district

court    held    “that     the      weight    of    the    evidence     indicates       that

[Appellee]       has     the     complete         inability     to     engage     in     any

compensable employment for twenty-five hours per week and is

thus totally disabled.”               J.A. 23.         The district court ordered

Appellant      to     award    benefits      to    Appellee.         Appellant    filed    a

timely appeal.




                                              9
                                      II.

             Appellant attacks the judgment of the district court

on two fronts.

            First,    Appellant    contends      the     district    court     erred

when it reviewed the denial of benefits de novo because Aetna

had   discretionary    authority    to      decide     benefits     appeals.      We

review this issue de novo.         See Haley v. Paul Revere Life Ins.

Co., 77 F.3d 84, 89 (4th Cir. 1996) (determining de novo review

is appropriate standard of review when deciding “whether the

[ERISA] plan confers discretion upon the administrator to make

the decision at issue”).

            Second, Appellant claims the district court erred when

it determined Appellee was totally disabled, as defined by the

Plan.    Because we find the district court correctly reviewed

Appellee’s    benefits     eligibility      de   novo,    we   employ   the     same

standard.     See Williams v. Metro. Life Ins. Co., 609 F.3d 622,

629 (4th Cir. 2010).          We “review factual findings for clear

error, and legal conclusions de novo.”               Paese v. Hartford Life &

Accident Ins. Co., 449 F.3d 435, 442 (2d Cir. 2006) (emphasis

omitted).

                                      III.

                                       A.

            Before    we    examine      the     district      court’s       “total

disability” determination, we must pass judgment on the district

                                       10
court’s resort to de novo review.                  When an ERISA claimant is

denied   benefits,      the   denial   of   benefits    is   reviewed     de    novo

“unless the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or

to construe the terms of the plan.”            Firestone Tire & Rubber Co.

v. Bruch, 489 U.S. 101, 115 (1989).                   “If such discretionary

authority   is   conferred,      the   courts’      review   is   for    abuse   of

discretion; however, the default standard of review is de novo,

and   abuse-of-discretion         review      is     appropriate     only       when

discretion is vested in the plan administrator.”                  Johnson v. Am.

United   Life    Ins.    Co.,    716   F.3d    813,    819   (4th    Cir.      2013)

(internal quotation marks omitted).

            An ERISA plan can confer discretion (1) by language

that “expressly creates discretionary authority” or (2) by terms

that “create discretion by implication.”                Feder v. Paul Revere

Life Ins. Co., 228 F.3d 518, 522-23 (4th Cir. 2000).                    Regardless

of whether discretion is created expressly or implicitly, a plan

must manifest a clear intent to confer such discretion.                        Woods

v. Prudential Ins. Co. of Am., 528 F.3d 320, 322 (4th Cir.

2008); see also Cosey v. Prudential Ins. Co. of Am., 735 F.3d

161, 165 (4th Cir. 2013).

            On appeal, the parties agree that the Plan confers

discretion upon two entities: FedEx and the “appeal committee”

appointed by FedEx.           They dispute, however, whether the Plan

                                       11
also grants Aetna that authority.                 Appellant argues Aetna had

discretionary authority because either FedEx appointed Aetna as

the appeal committee pursuant to the Plan or FedEx modified the

Plan.    We reject both arguments, finding Aetna did not have

discretionary      authority      to     determine    whether       Appellee   was

entitled to benefits.

                                         1.

           The     Plan     provides      that     FedEx    shall    appoint    an

appeal   committee    and      vests   this    committee    with    discretionary

authority.    In particular, section 5.3(c) of the Plan provides

that FedEx “shall appoint an appeal committee for the purpose of

conducting    reviews     of    denial    of     benefits   and    providing   the

claimant with written notice of the decision reached by such

committee.”      J.A. 450.      The authority of the appeal committee is

established by section 5.3(d) of the Plan:

           The appeal committee . . . shall, subject to
           the requirements of the Code and ERISA, be
           empowered to interpret the Plan’s provisions
           in its sole and exclusive discretion in
           accordance with its terms with respect to
           all matters properly brought before it . . .
           including, but not limited to, matters
           relating to the eligibility of a claimant
           for   benefits   under   the   Plan.      The
           determination of the appeal committee shall
           be made in a fair and consistent manner in
           accordance with the Plan’s terms and its
           decision shall be final, subject only to a
           determination   by  a   court  of   competent
           jurisdiction that the committee’s decision
           was arbitrary and capricious.


                                         12
Id. at 453–54.            Appellant claims Aetna was appointed as the

appeal committee because the Board disbanded the Benefit Review

Committee, the Board decided to outsource appeals to Aetna, and

FedEx and Aetna amended their service agreement.                              Accordingly,

Appellant argues, Aetna had discretionary authority to grant or

deny benefits.

                                             2.

            This claim turns on the meaning of “appoint,” raising

a question of interpretation.                We interpret ERISA plans just as

we interpret contracts and trusts.                      See Johnson v. Am. United

Life Ins. Co., 716 F.3d 813, 819 (4th Cir. 2013).                              We enforce

the terms of an ERISA plan “according to the literal and natural

meaning    of     the    [p]lan’s      language.”           Id.   at     820     (internal

quotation marks omitted).              We look at the plan “as a whole and

determine the provision’s meaning in the context of the entire

agreement.”       Id.     But when “the language of a contract is fairly

and     reasonably      susceptible      to       either    of    the     constructions

asserted by the parties,” the terms remain ambiguous and must be

construed in favor of the claimant.                        Id. (internal quotation

marks omitted).

            Here,       the    Plan    does       not    detail    the     process      for

appointing       the    appeal   committee.             Without   guidance       from   the

Plan,     each    party       offers   its        own   definition       of     “appoint.”

Because the Board outsourced appeals to Aetna, Appellee seeks to

                                             13
exclude “outsource” from this definition while Appellant seeks

to    include      “outsource”    as       part    of       its    definition.         Appellee

argues      that    appointment       requires          a    selection       or     designation

process designed to fill an office; this definition does not

include outsourcing because outsourcing is simply the channeling

of work from one place to another.                          Appellant responds that the

semantic      differences       between          “appoint”          and     “outsource”     are

meaningless,           claiming            the       terms            are          functionally

indistinguishable.

              Both    definitions          prove     reasonable.              On    one   hand,

“appoint”       means    there        is     some        selection         and      designation

process.        See, e.g., The American Heritage Dictionary 87 (5th

ed. 2011) (defining “appoint” as “[t]o select or designate to

fill an office or a position”); see also Garner’s Dictionary of

Legal Usage 269 (3d ed. 2011) (“Appoint implies selection that

may    be   subject     to    others’       approval          but    will    not     require   a

general vote of the electorate.”).                      On the other hand, “appoint”

may    mean     assignment       of    a    job     without          any     process-related

component, which potentially includes outsourcing.                                  See, e.g.,

New    Oxford      American    Dictionary           76       (3d    ed.     2010)    (defining

“appoint” as “assign a job or role to (someone)”);                                see also New

Oxford      American     Dictionary          1246           (3d     ed.    2010)     (defining

“outsource” as “obtain (goods or a service) from an outside or

foreign supplier, esp. in place of an internal source”).

                                             14
                When,     as      here,     the     terminology          is     reasonably

susceptible to either construction, we construe the language in

favor      of    the     claimant.         See     Johnson,      716     F.3d       at   820.

Accordingly, “appoint” incorporates the notion of a selection

and       designation       process.             “Appoint”       does      not       include

outsourcing, which is a mere funneling of work.                            Therefore, in

order     to    comply    with     the    Plan    the    Board    needed       to   actually

designate Aetna as the appeal committee. The evidence does not

demonstrate that the Board exercised this power.                              Instead, the

Board      merely       approved    an     internal       memorandum       from      FedEx’s

Employee Benefits Department recommending that all appeals be

farmed     out    to     Aetna;    there    was    not    a   process         indicating   a

selection and designation of a new appeal committee.                                 Indeed,

the Board’s minutes do not expressly mention Aetna, much less

the     Aetna     Appeal       Review     Committee       that    decided       Appellee’s

appeal.         So the Board did not actually appoint Aetna as the

appeal      committee       and     thus    did     not    give     it     discretionary

authority over appeals. 4


      4
       To the extent the minutes can be construed as actually
approving the outsourcing of appeals to Aetna, we note that
Aetna itself is not a committee as that term is commonly
understood. See New Oxford American Dictionary 349 (3d ed. 2010)
(defining “committee” as a “a group of people appointed for a
specific function”); see also Black’s Law Dictionary 309 (9th
ed. 2009) (defining “committee” as “a subordinate group to which
a[n] . . . organization refers business for consideration,
investigation, oversight, or action”).     Rather, Aetna itself
(Continued)
                                             15
                                      3.

              Alternatively,    Appellant        claims   the    Plan    was

effectively     amended    because    the   Board   disbanded   the   Benefit

Review Committee and outsourced appeals to Aetna and because

FedEx and Aetna amended their service agreement.            Section 7.1 of

the Plan outlines the amendment process:

              The Sponsoring Employers shall have the
              right at any time to modify, alter or amend
              the Plan in whole or in part by an
              instrument in writing duly executed by
              officers of each of the Sponsoring Employers
              or as reflected in the minutes of FedEx
              Corporation’s board of directors or any
              committee thereof or as reflected in the
              minutes of the [Board].

J.A. 463. 5

              Appellant contends this modified section 5.3(c) of the

Plan, which covers appointment of the appeal committee, because

it   dissolved       the    Benefit     Review      Committee   and     moved

discretionary appellate review to Aetna.




later created a committee, the Aetna Appeal Review Committee, to
review and decide appeals. Construing the terms of the Plan in
Appellee’s favor, the distinction between Aetna generally and
the Aetna Appeal Review Committee is not without a difference.
     5
       The Plan defines “Sponsoring Employee” as “Federal Express
Corporation, FedEx Corporation, FedEx Trade Networks Transport &
Brokerage, Inc., FedEx Trade Networks Trade Services, Inc.,
World Tariff, Ltd., FedEx Customer Information Services, Inc.,
and holding company employees only of FedEx Corporate Services,
Inc., FedEx Trade Networks, Inc. and FedEx Freight Corporation.”
J.A. at 414.


                                      16
            Amendments or modifications of ERISA plans “must be

implemented in conformity with the formal amendment procedures

and must be in writing.”            Coleman v. Nationwide Life Ins. Co.,

969 F.2d 54, 58–59 (4th Cir. 1992).                These requirements “are

designed to give both the plan’s participants and administrators

a clear understanding of their rights and obligations, and they

do   not   authorize    oral   or   implied    modifications    to    a    written

plan.”     Singer v. Black & Decker Corp., 964 F.2d 1449, 1453–54

(4th Cir. 1992) (Wilkinson, J., concurring) (citations omitted)

(internal quotation marks omitted).            Further, these requirements

emphasize      the     importance       of     clarity;    amendments          and

modifications cannot be made cavalierly.

            It is not enough for a writing to suggest or imply an

amendment or modification of an ERISA plan; the writing must be

accompanied by a clear intent to amend or modify the plan.                    See

Biggers v. Wittek Indus. Inc., 4 F.3d 291, 295–96 (4th Cir.

1993); see also Coffin v. Bowater Inc., 501 F.3d 80, 91–92 (1st

Cir. 2007) (“[A]n ERISA plan amendment . . . must clearly alert

the parties that the plan is being amended . . . .”).                     Specific

language     regarding    amendment      or    modification     and       specific

references    to     amended   or   modified    sections   of   a     plan,    for

example, evidence a clear intent to amend or modify a plan.

See, e.g., Coffin, 501 F.3d at 90; Souza v. R.I. Carpenter’s



                                       17
Pension Plan, No. Civ.A. 05-186S, 2006 WL 2559483, at *5 (D.R.I.

Aug. 31, 2006).

              Appellant     claims   modification     was    effected   in   this

case via the minutes from the Board’s meeting on July 14, 2008,

which read as follows:

              The [Board] next reviewed a proposal from
              the Federal Express Corporation Benefits
              Appeals group to outsource remaining long-
              term disability appeals effective September
              1, 2008, and effectively cease the operation
              of the Benefit Review Committee.      . . .
              Following a thorough discussion, the [Board]
              voted to approve the recommendation.

J.A. at 63.       However, the Board did not discuss any intent to

modify the Plan; the Board did not mention any portion of the

Plan that was amended; the Board did not mention the Plan at

all.       Appellant asks us to find amendment is implied, readily

admitting that the minutes alone would support only modification

by implication.       See Oral Argument at 5:00, Bilheimer v. Fed.

Express      Corp.,   No.     13-1859,    available     at    http://coop.ca4.

uscourts.gov/OAarchive/mp3/13-1859-20150326.mp3.                 We   refuse   to

allow amendment by implication.           See Singer, 964 F.2d at 1453–54

(Wilkinson, J., concurring). 6


       6
       Appellant asks us to go beyond the Board’s minutes,
imploring us to consider the minutes in conjunction with the
amended service agreement executed by FedEx and Aetna. But the
Plan does not permit the amended service agreement to effect
modification -- the amended agreement is not in the minutes and
was not executed by all of the requisite parties.      The only
(Continued)
                                         18
           Because   the    Plan    was     not     actually    amended,     the

district court correctly determined that Aetna was not given

discretionary   authority   to     review    appeals.        Accordingly,    the

district court applied the proper standard of review, reviewing

Aetna’s decision de novo.

                                     B.

           We now address the district court’s conclusion that

Appellee is totally disabled.        Under the Plan, an individual who

suffers an “occupational disability” can receive benefits for

two   years,    whereas    an    individual        who   suffers    a     “total

disability” is not subject to the two-year limitation.                  The Plan

defines   “total   disability”     as     “the    complete   inability     of   a

Covered Employee, because of medically-determinable physical or

functional impairment (other than impairment caused by a mental

or nervous condition or a Chemical Dependency), to engage in any

compensable employment for twenty-five hours per week.”                     J.A.




Sponsoring Employer that was a signatory to the amended
agreement was FedEx.      In any event, the impact non-plan
documents -- like the amended agreement -- can have on an ERISA
plan is questionable.    See CIGNA Corp. v. Amara, 131 S. Ct.
1866, 1878 (2011) (“[W]e conclude that the summary documents,
important as they are, provide communication with beneficiaries
about the plan, but that their statements do not themselves
constitute the terms of the plan . . . .”); Cosey, 735 F.3d at
170 n.8 (“[I]n the ERISA context, the Supreme Court’s decision
in Amara has cast serious doubt on whether non-plan documents
can be used to interpret a plan’s language.”).



                                     19
414.      After   reviewing     the   expert        opinions    submitted   by    the

parties and affording greater credit to the experts who actually

treated    and    examined    Appellee,       the    district   court   determined

Appellee was totally disabled.

                                         1.

            At the outset, Appellant claims the district court’s

interpretation      of    “compensable    employment”          was   erroneous;    we

disagree.     The district court refused to narrowly construe this

term, applying the Sixth Circuit’s interpretation of a similar

phrase:

            [T]he phrase “prevented from engaging in every
            business or occupation” cannot be construed so
            narrowly that an individual must be utterly
            helpless to be considered disabled and that
            nominal employment, such as selling peanuts or
            pencils which would yield only a pittance,
            does   not    constitute    a    “business   or
            occupation.”        Instead,     a   claimant’s
            entitlement to payments based on a claim of
            “total disability” must be based on the
            claimant’s   ability    to    pursue   “gainful
            employment in light of all the circumstances.”

VanderKlok v. Provident Life & Accident Ins. Co. Inc., 956 F.2d

610, 614–15 (6th Cir. 1992) (quoting Torix v. Ball Corp., 862

F.2d 1428, 1431 (10th Cir. 1988)).

            ERISA    is      “designed    to        promote    the   interests    of

employees and their beneficiaries in employee benefits plans,”

so we seek to respect and fulfill the reasonable expectations of

ERISA plan participants.         Lown v. Cont’l Cas. Co., 238 F.3d 543,


                                         20
547    (4th    Cir.     2001)    (internal         quotation      marks   omitted);     see

also,         e.g.,       Johnson,            716         F.3d      at      820     (“Our

inquiry . . . requires us to consider what a reasonable person

in the position of the participant would have understood those

terms to mean.” (internal quotation marks omitted)).

               Reasonable       ERISA    plan       participants     would     understand

“compensable          employment”        as     meaning          “meaningful,     gainful

employment”; they would not expect this phrase to mean “any job

at    any    place     with   any   pay.”           The   VanderKlok      court   and   the

district court recognized this expectation and sought to avoid

undue       economic    hardship,       furthering         the    goals   of   ERISA    and

promoting the interests of plan participants.                             Therefore, we

conclude the district court properly interpreted the scope of

the term “compensable employment.”

                                              2.

               Next     we      review        the     district       court’s      factual

determination that Appellee is totally disabled.                          We review the

district court’s factual findings for clear error.                          We “will not

reverse a lower court’s finding of fact simply because we would

have decided the case differently.”                        Easley v. Cromartie, 532

U.S. 234, 242 (2001) (internal quotation marks omitted).

               We ask instead whether we are “left with the definite

and firm conviction that a mistake has been committed.”                            United

States v. Wooden, 693 F.3d 440, 451 (4th Cir. 2012) (internal

                                              21
quotation marks omitted).            “If the district court’s account of

the evidence is plausible in light of the record viewed in its

entirety, [we] may not reverse it even though convinced that had

[we] been sitting as the trier of fact, [we] would have weighed

the evidence differently.”            Anderson, 470 U.S. at 573–74.                  We

may also find clear error “when a court makes findings without

properly     taking    into       account       substantial       evidence     to   the

contrary.”     United States v. Caporale, 701 F.3d 128, 140 (4th

Cir. 2012) (internal quotation marks omitted).

            To be entitled to benefits, Appellee must be precluded

from any compensable employment for twenty-five hours per week,

which must be “substantiated by significant objective findings.”

J.A. 406.     “[S]ignificant objective findings . . . are defined

as signs which are noted on a test or medical exam and which are

considered         significant         anatomical,             physiological         or

psychological abnormalities which can be observed apart from the

individual’s symptoms.”            Id. at 406–07.              This case turns on

whether    Appellee   could       engage    in    any    compensable     employment.

The   district     court    was    faced    with        dueling    experts     in   this

regard.

            Although Appellee’s experts were fewer in number, they

had actually examined him: “Dr. Morris conducted a comprehensive

physical    examination     of     [Appellee]”      and     “Dr.     Rougeou   treated

[Appellee]    at    least   six     times       [and]    had   the   opportunity     to

                                           22
directly    observe        [his]    physical     condition.”       J.A.     19.     Dr.

Morris     noted     several       limitations     on    Appellee’s       ability    to

perform in the workplace, “conclud[ing] that in an eight-hour

workday, [Appellee] could be expected to stand and/or walk for

two hours at most, and to sit for four hours maximum, with a

break    every      hour.”         Id.     Based    on    his    observations       and

examinations,        Dr.     Rougeou      determined      Appellee     was     totally

disabled:

            It is my opinion, based upon my medical
            education and experience and based upon my
            specific knowledge of [Appellee’s] problems
            and treatment history that he is and has
            been completely and totally disabled from
            performing any employment on a part-time
            (twenty-five hours per week) or full-time
            basis, consistent with the definition of
            disability above. I render my opinion based
            upon the cumulative effect of [Appellee’s]
            above    described   objectively   diagnosed
            medical problems and the subjective symptoms
            he suffers.

Id. at 91.

            On the other side of the battle of the experts were

several peer review physicians hired by Appellant.                        Appellant’s

retained experts all agreed Appellee was not totally disabled.

However,     none     of    these     experts    directly       observed     Appellee,

conducted     a     physical       examination     of    Appellee,    or     contacted

Appellee’s treating physicians.

            Tasked     with    weighing      the   facts,    the     district     court

discounted    the     opinions       of   Appellant’s      experts    and    afforded

                                           23
greater weight to the opinions of Dr. Morris and Dr. Rougeou.

The district court determined that the opinions of Dr. Morris

and Dr. Rougeou deserved more weight because both physicians

“observed [Appellee] in person before opining upon [his] ability

to work.”     J.A. 19.          The retained experts lacked this hands-on

experience, lessening the persuasive impact of their opinions.

Based on the value ascribed to the various experts, the district

court concluded that “the weight of the evidence indicates that

[Appellee]        has     the   complete        inability     to        engage       in   any

compensable employment for twenty-five hours per week and is

thus totally disabled.”            Id. at 23.

            There is no clear error here.                     The district court’s

account of the evidence is plausible, and nothing indicates the

district court failed to account for substantial evidence to the

contrary.          Although        a    district     court     cannot       require        an

administrator       to     assign        certain     weight     to      certain       expert

opinions,    the        district       court   was   entitled      to    determine        the

weight of each expert’s opinion and to afford more weight to the

opinions     of    treating        physicians.         Compare       Black       &    Decker

Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“[C]ourts

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

                                               24
with a treating physician’s evaluation.”), with Turner v. Ret. &

Benefit Plans Comm. Robert Bosch Corp., 585 F. Supp. 2d 692, 707

(D.S.C. 2007) (finding a court may ascribe greater weight to

opinions of treating physicians based on cumulative review of

the evidence).

            Appellant claims the specific limitations outlined by

Dr.    Morris    belie      the    district      court’s       findings.           But    the

district court discussed these limitations, concluding “that the

limitations articulated by Dr. Morris would preclude [Appellee]

from    engaging      in   any     compensable     employment         for    twenty-five

hours per week.”           J.A. 23.      Although the district court did not

entertain a prolonged discussion of why these findings did not

undermine   its       conclusion,     it    cannot      be    said   to     have    ignored

these    limitations.             Regardless     of     how    we    may     view        these

limitations,      we    cannot     re-weigh      this    evidence      and    usurp       the

district court’s role as finder of fact.

            Accordingly, we hold that the district court did not

err by determining Appellee fell within the Plan’s definition of

“totally disabled.”

                                           IV.

            We     conclude       that     the   district       court       applied       the

appropriate standard of review when reviewing Aetna’s denial of

benefits.        We     further      conclude     that        the    district       court’s



                                            25
decision that Appellee is entitled to benefits under the Plan

was not erroneous.

                                                     AFFIRMED




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