UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HOLLIE TOLER, JR.,
Plaintiff-Appellant,

v.
                                                                  No. 97-1131
PINE RIDGE COAL COMPANY; PEABODY
LONG TERM DISABILITY PLAN FOR
SALARIED EMPLOYEES,
Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CA-95-1116-2)

Argued: October 1, 1997

Decided: December 17, 1997

Before WIDENER and MICHAEL, Circuit Judges, and
THORNBURG, United States District Judge for the
Western District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Roger Daniel Forman, FORMAN & CRANE, L.C.,
Charleston, West Virginia, for Appellant. Michael James Florio,
STEPTOE & JOHNSON, Clarksburg, West Virginia, for Appellees.
ON BRIEF: C. David Morrison, STEPTOE & JOHNSON, Clarks-
burg, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The appellant Toler appeals the judgment of the district court
granting defendants' motion for summary judgment in his appeal of
the decision by Peabody Long Term Disability Plan to terminate his
long term disability benefits in September of 1995. We affirm the dis-
trict court.

I.

Toler was injured while working for Pine Ridge Coal Company in
December of 1993, and received long term disability benefits until the
Program Administrator, Peabody Long Term Disability Plan ("the
Plan"), reviewed his claim and suspended payments in May of 1995.

The review of Toler's claim was prompted when his treating physi-
cian, Dr. Zahir, released him for work as of February 6, 1995. Subse-
quent to his release, Toler did not return to work, nor did he inform
Pine Ridge of his release. Eastern Associated Coal Corporation is the
company adopted by Pine Ridge to act as the claim administrator
under the Plan. Eastern's representative, Paula Sgro, sent Toler a let-
ter on February 9 requesting that he submit proof of his disability by
returning a claim form within the following 30-day period. Toler went
to Dr. Robert Clubb, a neurologist, to have the claim form completed.
Dr. Clubb, however, did not fill out the portions of the form critical
for assessing the extent of Toler's alleged continuing disability.

Sgro then sent another letter to Toler requesting that he resubmit
a claim form, and extended the deadline until April 30, 1995. The
form, signed by Dr. Clubb and hand-delivered by Toler on March 29,
indicated that Toler was "temporarily" totally disabled for his current
occupation or any other. This report contradicted a letter sent by Dr.
Clubb in July 1994, and a form that he submitted to the workers'

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compensation fund on March 28, 1995, both of which indicated that
Toler could return to a "sedentary type job."

Because of this apparent contradiction, Sgro requested additional
information from Dr. Clubb on March 29, 1995. Toler hand-delivered
the letter to Dr. Clubb, and later informed Sgro that Dr. Clubb refused
to provide any further information regarding his condition. Toler then
took the form to Dr. Zahir. The summary judgment record indicated
the form was completed by Dr. Zahir's staff, based upon his notes,
which stated that Toler was not disabled for his regular occupation or
any other occupation, and that he was able to return to work as of
February 6, 1995. The form as delivered to Sgro had been altered to
indicate that Toler was totally disabled for an indefinite period of
time, and that a referral to another physician had been made. A copy
of the original form was faxed to Sgro by Dr. Zahir's office which
revealed the alterations.

Based upon a review of this information, Garry Groves, the person
chosen to evaluate the claim by Eastern, decided to terminate Toler's
benefits and notified him of this by letter on May 16, 1995. The letter
informed Toler of the basis for the decision and of his right to submit
a written request for a formal review of the decision. After receiving
notice that his benefits were terminated, Toler submitted a form from
a psychiatrist, Dr. Esther McMahon, indicating that she had treated
Toler for depression but could not determine whether Toler's psychi-
atric condition rendered him totally disabled. He also submitted a
form by a doctor of osteopathic medicine, Dr. Anthony Flaim, indi-
cating that Toler was totally disabled for his regular occupation or any
other occupation.

On July 10, 1995, Groves sent Toler a letter informing him that any
forms submitted after the May 16 date of decision would not be con-
sidered in the review process. Toler then sent a written request for a
review of the decision. The review was conducted by Sharon Shergen
for the Plan Administrator, who considered all the relevant documents
and affirmed the denial of benefits to Toler.

II.

We review this appeal of the grant of summary judgment de novo.

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          In cases where the benefit plan grants the administrator or
          fiduciary discretionary authority to determine eligibility or
          to construe the terms of the plan, the denial decision must
          be reviewed for abuse of discretion. . . . [A] reviewing court
          determines de novo whether the ERISA plan confers discre-
          tionary authority on the administrator or fiduciary and, if so,
          whether the administrator or fiduciary acted within that dis-
          cretion.

Ellis v. Metropolitan Life Ins. Co., #6D 6D6D# F.3d ___, 1997 WL 560079
at *3 (4th Cir. Sept. 10, 1997) (internal citations omitted).

A.

Appellant contends first that the Plan Administrator acted illegally
in setting a deadline for the submission of information supporting the
claim for disability. An examination of the Plan reveals that Peabody
Coal Company is designated as the Plan Administrator, who in turn
appoints a claim administrator to act as its fiduciary and delegate
duties under the plan. The Plan states explicitly that the Administrator
may "make and enforce such rules and regulations as it deems neces-
sary or proper . . . [and] interpret the Plan, with its interpretation
being final and conclusive."

It is clear that the Plan confers discretionary authority on the fidu-
ciary, and therefore the conduct of the administrator must be reviewed
according to an abuse of discretion standard. Id.

          Under this deferential standard, the administrator or fidu-
          ciary's decision will not be disturbed if it is reasonable, even
          if this court would have come to a different conclusion inde-
          pendently. . . . Such a decision is reasonable if it is "the
          result of a deliberate, principled reasoning process and if it
          is supported by substantial evidence."

Id. (internal citations omitted).

Appellant's argument that Sgro, as the fiduciary, illegally set a
deadline for the submission of information to support his claim is

                     4
without merit, given that the Plan explicitly gives the administrator
the power to make and enforce rules and regulations. The Plan further
requires the applicant to provide the administrator with such informa-
tion and evidence as might be needed for a review of the claim. Even
if the administrator were to fail in following the procedural require-
ments of the Plan, "the constitutional requirement of procedural due
process has no place in the functions of a private entity, even one so
highly regulated as the insurance industry has become under ERISA's
pervasive aegis." Groft v. Health Care Corp. of Mid-Atlantic, 792 F.
Supp. 441, 443 (D. Md. 1992), aff'd, 991 F.2d 789 (4th Cir. 1993);
accord, Sheppard & Enoch Pratt Hospital v. The Travelers Ins. Co.,
1993 WL 733870 (D. Md. 1993), aff'd, 32 F.3d 120 (4th Cir. 1994).

B.

Appellant's second ground for appeal is the contention that the
decision to deny benefits is not supported by the evidence. As noted
above, if the decision is reasonable, it is not an abuse of discretion.
Ellis, supra. A decision is reasonable if supported by substantial evi-
dence. Id. The physician, Dr. Zahir, who initially certified appellant
for benefits, concluded that he could return to work with no limita-
tions. Dr. Clubb's opinions, however, were inconsistent and therefore
the administrator was not compelled to accept either of them. Brogan
v. Holland, 105 F.3d 158, 162 (4th Cir. 1997). Even if we were to
ignore the inexplicable alteration of Dr. Zahir's original form, the
internal inconsistencies in the document permit the Administrator to
disregard the entire document as evidence of appellant's on-going dis-
ability.

The Administrator's rule barring additional evidence of appellant's
claim beyond the already extended deadline of May 16, 1995, was
within its rulemaking authority granted under the Plan. The record
indicates that during its review of the decision to deny benefits, the
Administrator used its discretion to consider the opinions of Dr. Flaim
and Dr. McMahon, both of which were submitted after the deadline,
and found them to be less than persuasive.

The decision by the Plan Administrator in this case is clearly sup-
ported by substantial evidence, is reasonable and therefore is not an
abuse of discretion.

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The decision of the district court is, therefore,

AFFIRMED.

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