PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REBECCA DUPERRY, 

Plaintiff-Appellee,

v.  No. 10-1089

LIFE INSURANCE COMPANY OF NORTH

AMERICA,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at New Bern.

Louise W. Flanagan, Chief District Judge.

(5:08-cv-00344-FL)

Argued: December 8, 2010

Decided: January 24, 2011

Before TRAXLER, Chief Judge, WYNN, Circuit Judge,

and David A. FABER, Senior United States District Judge

for the Southern District of West Virginia,

sitting by designation.

Affirmed by published opinion. Chief Judge Traxler wrote the

opinion, in which Judge Wynn and Senior Judge Faber joined.

COUNSEL

ARGUED: Ian Taylor, DLA PIPER US LLP, Baltimore,

Maryland, for Appellant. Andrew O. Whiteman, HARTZELL
& WHITEMAN, LLP, Raleigh, North Carolina, for Appellee.

ON BRIEF: Christopher S. Gunderson, DLA PIPER US

LLP, Baltimore, Maryland; Michael T. Medford, MANNING

FULTON & SKINNER PA, Raleigh, North Carolina, for

Appellant.

OPINION

TRAXLER, Chief Judge:

Life Insurance Company of North America ("LINA")

appeals a district court order granting judgment to Rebecca

DuPerry on her claim that LINA wrongly denied her longterm disability ("LTD") benefits in violation of the Employee

Retirement Income Security Act of 1974 ("ERISA"). See 29

U.S.C.A. § 1132(a)(1)(B) (West 2009). Finding no error, we

affirm.

I.

DuPerry worked as a payroll and benefits clerk for Railroad

Friction Products Corporation ("RFPC") until April 7, 2006.

While at RFPC, she participated in a group LTD benefits plan

administered by LINA and funded by an insurance policy that

LINA issued ("the Policy"). The parties agree that the LTD

plan is "an employee benefit plan," as that term is defined in

ERISA. See 29 U.S.C.A. § 1002(3). To qualify for LTD benefits, participants must be "Disabled," and "must satisfy the

Elimination Period, be under the Appropriate Care of a Physician, and meet all the other terms and conditions of the Policy." J.A. 63. Until an employee has received 24 months of

LTD benefits, she is "Disabled"

if, solely because of Injury or Sickness, . . . she is:

1. unable to perform the material duties of . . . her

Regular Occupation; and 

2 DUPERRY v. LIFE INSURANCE COMPANY
2. unable to earn 80% or more of . . . her Indexed

Earnings from working in . . . her Regular Occupation.

J.A. 58. Once disability benefits have been payable for 24

months, she is disabled if

solely due to Injury or Sickness, . . . she is:

1. unable to perform the material duties of any occupation for which . . . she is, or may reasonably

become, qualified based on education, training or

experience; and

2. unable to earn 60% or more of . . . her Indexed

Earnings.

J.A. 58. An employee’s "regular occupation" is defined as

"[t]he occupation the Employee routinely performs at the time

the Disability begins." J.A. 74. LINA classified DuPerry’s

regular occupation as a payroll benefits HR administrator as

"sedentary," meaning that it required lifting, carrying, pushing, or pulling 10 pounds occasionally and that although it

involved mostly sitting, it could involve standing or walking

for brief periods. The Policy further provides that an

employee "must provide [LINA] . . . satisfactory proof of Disability before benefits will be paid." J.A. 63. Finally, "[t]he

Elimination Period is the period of time an Employee must be

continuously Disabled before Disability Benefits are payable," J.A. 63, which was 180 days for DuPerry. 

Following what DuPerry asserted was the expiration of her

elimination period, DuPerry first submitted a proof of loss

form to LINA on October 16, 2006, claiming that she was disabled as a result of rheumatoid arthritis, osteoarthritis, and fibromyalgia.1

1Rheumatoid arthritis is "an inflammatory disease of the joints that

causes the joints to swell and to stiffen. It is a chronic condition, permaDUPERRY v. LIFE INSURANCE COMPANY 3
In evaluating DuPerry’s claim, LINA reviewed medical

records of her primary care physician, Dr. Glenn Harris, and

her treating rheumatologist, Dr. Supen Patel, as well as "Attending Physician’s Statement of Disability" forms that the

doctors had completed. Dr. Harris’s form noted his diagnosis

of rheumatoid arthritis and stated that DuPerry was limited to

"0 hours" per day of climbing, balancing, stooping, kneeling,

crouching, crawling, reaching, walking, sitting, and standing,

and that DuPerry would "never" be able to return to work.

J.A. 795. Dr. Harris also indicated on a "Physical Ability

Assessment Form" that DuPerry could "[o]ccasionally" sit,

stand, walk, reach, engage in fine manipulation, grasp, lift,

carry, stoop, or push or pull up to 10 pounds, where

"[o]ccasionally" was defined alternatively as 1% - 33% of an

eight-hour workday or less than 2.5 hours. J.A. 768.

Dr. Patel’s Attending Physician’s Statement of Disability

form noted his diagnosis of rheumatoid arthritis and osteoarthritis. In a column titled "Cardiac – If applicable," Dr. Patel

marked a box for "Class 4 – Complete Limitation." J.A. 797.

In response to a question of when DuPerry would be able to

return to work, Dr. Patel wrote "Never – [DuPerry] is Permanently disabled." J.A. 797. And, where the form asked for

DuPerry’s "maximum level of ability (sedentary, light,

medium, heavy)" for lifting, carrying, pushing, or pulling, Dr.

Patel selected the lowest available choice of "Sedentary = 10

lbs. maximum, walking occasionally." J.A. 797.

nent in nature." Moore v. J.B. Hunt Transport, Inc., 221 F.3d 944, 948

(7th Cir. 2000). Osteoarthritis is "a noninflammatory degenerative joint

disease . . . characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and changes in the synovial membrane."

McCoy v. Holland, 364 F.3d 166, 168 n.3 (4th Cir. 2004) (internal quotation marks omitted) (alteration in original). Fibromyalgia is a rheumatic

disease with symptoms that include "significant pain and fatigue, tenderness, stiffness of joints, and disturbed sleep." Stup v. UNUM Life Ins. Co.

of Am., 390 F.3d 301, 303 (4th Cir. 2004) (internal quotation marks omitted). Fibromyalgia is diagnosed "based on tenderness of at least eleven of

eighteen standard trigger points on the body." Id.

4 DUPERRY v. LIFE INSURANCE COMPANY
Two other documents that LINA considered in its initial

review are relevant to this appeal. First, a 2006 blood test

report showed DuPerry as having normal levels of hematocrit

and hemoglobin. Second, a physical therapist’s report dated

April 12, 2006, indicated that DuPerry had "made small

strength and endurance gains" and had "demo[nstrated] excellent compliance." J.A. 813. The form also noted that DuPerry

was able to walk 10 laps around the approximately 170-foot

gym track in nine minutes. 

Melissa Graham, the case manager handling DuPerry’s

claim for LINA, requested that a nurse case manager

("NCM") telephone Dr. Patel for clarification of the information he had provided on his physician’s statement of disability

form, specifically his decision to circle "sedentary." Dr. Patel

spoke to the NCM on November 3, 2006, informing her that

fibromyalgia, fatigue and side effects from her pain medications prevented DuPerry from working, even though her rheumatoid arthritis was under control. He further explained that

DuPerry suffered from achiness and stiffness coinciding with

changes in the weather, and that she had been responding well

to medications. This assessment was consistent with notations

in LINA’s notes, which stated "[Return-to-work] date clear.

NO both [attending physicians] stating [claimant] is permanently disabled."2

 J.A. 903. Nevertheless, the NCM eventually

concluded that DuPerry had not submitted satisfactory proof

that she suffered from a continuing disability from her regular

occupation during the elimination period. 

LINA informed DuPerry by letter dated November 10,

2006, of its decision to deny her claim because of a lack of

medical evidence of her disability. The letter referenced the

medical records LINA had reviewed, mentioning in particular

five office notes from Dr. Patel, six from Dr. Harris, and the

2This note would appear to mean that there clearly is no return-to-work

date according to both attending physicians, who are stating that the claimant is permanently disabled. 

DUPERRY v. LIFE INSURANCE COMPANY 5
NCM’s telephone conversation with Dr. Patel. The letter concluded:

Our NCM opined that we do not have medical information on file to support the restrictions and limitations given by your providers. Our NCM opined that

we do not have diagnostic testing to suggest severity

of illness precluding you from performing a sedentary occupation. 

J.A. 309.

DuPerry appealed LINA’s initial denial by a letter dated

May 7, 2007, that referenced nearly 400 pages of documents

in support of her claim. 

The appeal included letters from Drs. Harris and Patel. Dr.

Harris’s November 27, 2006, letter explained how DuPerry’s

situation had worsened over the years to the point that her

pain was almost unbearable in May 2005, and Harris had

urged her to stop work. The letter stated that DuPerry had

nevertheless attempted to continue working, but, by February

6, 2006, "she was at the point that even Percocet twice a day

was not quite enough to hold her," and she agreed to stop

work. J.A. 462. 

Dr. Patel’s January 12, 2007, letter explained that while

DuPerry’s arthritis had "been reasonably well controlled" by

her medications and, although her fibromyalgia and fatigue

symptoms were managed with medications, they "make[ ] it

difficult for her to function." J.A. 518. Thus, Dr. Patel concluded that "because of the above medical problems and complications thereof and medications, [DuPerry] certainly is not

able to return to any previous work duties." J.A. 518. An

exam report also dated January 12, 2007, noted that DuPerry’s pain seemed to be worse than it had been, and that while

she was taking 5 milligrams of Percocet three to four times a

6 DUPERRY v. LIFE INSURANCE COMPANY
day, Dr. Patel additionally prescribed 10 milligrams of OxyContin per day.3

Dr. Patel’s notes from May 9, 2007, reported that DuPerry’s "pain seem[ed] to be better," but her fatigue had worsened somewhat and she "still ha[d] not much energy level."

J.A. 228. Dr. Patel’s report dated July 3, 2007, stated that

DuPerry was experiencing "quite a bit of pain" in her back

from her osteoarthritis of the lumbar spine with intermittent

sciatic symptoms. J.A. 229. He noted that by that time, along

with the Percocet, DuPerry was using 20 milligrams of OxyContin twice a day, which was "making her sleepy and

drowsy." J.A. 229. He reported that DuPerry "needs to limit

her activities" such that if she did "five to ten minutes of

work," she needed to "rest[ ] for about 30 to 40 minutes

before returning . . . to work duties." J.A. 229. Dr. Patel’s

notes from September 17, 2007, reported that DuPerry was

"still symptomatic with pain and discomfort" and that he had

increased several of her medications, including increasing her

OxyContin to 30 milligrams. J.A. 224. He noted that she was

"having symptoms of constipation and excessive drowsiness

with the OxyContin." J.A. 224.

In addition to the medical records and letters, included in

the materials was a letter from DuPerry’s former boss, who

described DuPerry as having a "work ethic" that is "unsurpassed." J.A. 463. He described DuPerry’s transition from

"one of the most valuable employees" he had known to someone "sitting at her desk trying valiantly to work" with "her

hands trembling so badly that she could hardly hold a pencil."

J.A. 463. DuPerry’s appeal also included a declaration, her

own DVD filmed at her home, supporting statements from

several relatives, and her prescription medication list. Her evidence showed how she depended on help from her family for

most household chores, errands, and shopping and that at

times she used a cane, a walker, and a wheelchair. She gener3Percocet and OxyContin are powerful narcotic painkillers. 

DUPERRY v. LIFE INSURANCE COMPANY 7
ally remained in her bedroom, in which she had a hospital bed

and a refrigerator. 

Nancy Ippolito, LINA’s appeal claim manager, requested a

full review of the claim by Dr. Charles McCool, a licensed

physician and a LINA employee. Dr. McCool’s resulting

report consisted of a half-page of largely illegible, handwritten notes. However, according to Ippolito’s summary of his

views, McCool recommended affirming the benefits denial

and noted that updated letters from DuPerry’s treating physicians showed "minimal exam findings" and levels of hematocrit and hemoglobin of "around 11/32." J.A. 874. LINA

subsequently advised DuPerry that her appeal had been

denied. In its denial letter, dated May 31, 2007, LINA

acknowledged Dr. Patel’s diagnoses of rheumatoid arthritis

and fibromyalgia. LINA nevertheless emphasized that Dr.

Patel’s records demonstrated that DuPerry’s medications were

keeping her rheumatoid arthritis reasonably under control and

her fibromyalgia and fatigue were "secondary to the underlying disease process and . . . managed with medication." J.A.

302. LINA also noted that Harris had "previously completed

a Physical Ability Assessment form in October of 2006 indicative of sedentary capacity, but he has not released Ms.

DuPerry to return to work." J.A. 302. LINA further stated that

the physician who reviewed her file had determined that "the

records do not show a severe impairment that would prevent

Ms. DuPerry from performing at the sedentary demand level."

J.A. 302. In concluding, LINA stated:

Ms. DuPerry’s physicians have failed to provide

clinical data to correlate with an impairment that

would preclude work at the sedentary demand level.

The [reviewing physician] noted that there are only

minimal examination findings and the hematocrit

and hemoglobin are near normal and do not explain

fatigue. Furthermore the records document that Ms.

DuPerry’s conditions are under control with medication. 

8 DUPERRY v. LIFE INSURANCE COMPANY
J.A. 302.

By letter dated November 26, 2007, DuPerry once again

appealed LINA’s denial of benefits. Along with her appeal,

she included additional medical records from Dr. Patel, Dr.

Harris, and Dr. Misty L. Sinclair. She also included a second

DVD documenting her condition. LINA assigned the second

appeal to a third claim manager, Andrea Russo, who

requested a review of DuPerry’s records from an independent

rheumatology consultant. That review was completed by Dr.

Marc Levesque, a board-certified rheumatologist with the

Duke University Medical Center. 

Dr. Levesque produced two reports recommending denying

DuPerry’s appeal. In a report dated January 31, 2008, Dr.

Levesque noted Dr. Patel’s and Dr. Harris’s diagnosis of

DuPerry with "a combination of rheumatoid arthritis, osteoarthritis, and fibromyalgia," J.A. 172, but he concluded that Dr.

Patel’s and Dr. Harris’s restrictions nevertheless "are not supported," J.A. 174. Dr. Levesque noted that DuPerry’s "rheumatoid arthritis appears to be under excellent control with a

combination of medicines that are typically used for the treatment of rheumatoid arthritis" and that "the video movements,

especially of [DuPerry’s] hands and also of her ambulation

would suggest that there is no permanent deformity and no

significant swelling associated with the patient’s rheumatoid

arthritis that would preclude most sedentary occupations,

including" DuPerry’s occupation. J.A. 173-74. As for her

fibromyalgia, Dr. Levesque stated that "given the absence of

physical limitations due to this problem, there is nothing that

would preclude [DuPerry] normally from pursuing a typical

sedentary occupation," and "[g]enerally, patients with fibromyalgia are able to work a sedentary occupation." J.A. 174.

Dr. Levesque did note that DuPerry’s chronic pain and fibromyalgia "appear[ed] to be complicated by the presence of

depression" but stated that whether the depression would prevent DuPerry from being able to work was a question outside

of his area of expertise. J.A. 174.

DUPERRY v. LIFE INSURANCE COMPANY 9
In a subsequent report, dated February 10, 2008, Dr.

Levesque also considered the DVD DuPerry provided with

her second appeal.4 In the report, Dr. Levesque stated:

[a]s noted in the previous video, no deformity is

noted of [DuPerry’s] hands or other joints. There

appears to be relatively normal range of motion in

most of her joints, based on the limited video that is

available. The major area of stiffness and limited

range of motion appears to be in her back and the

limitation primarily appears to be due to pain rather

than other factors, based on the limited footage in the

video.

J.A. 144. Dr. Levesque also concluded that "with regards to

[DuPerry’s] work capacity, as in the previous video of

[DuPerry] in her home, this video supports the idea that

[DuPerry’s] primary problem is fibromyalgia and perhaps

some osteoarthritis of her knees." J.A. 144. He stated, 

[The video] indicates that her rheumatoid arthritis is

not likely to be a significant cause of her inability to

work or her inability to perform most activities of

daily living given the fact that the underlying major

diagnosis for [DuPerry’s] pain appears to be fibromyalgia. Since it appears to be fibromyalgia, and

given the lack of physical findings associated with

this diagnosis, it does not adequately support the

4LINA instructed Dr. Levesque to telephone DuPerry’s treating physicians if Dr. Levesque had any questions he needed answered. When

DuPerry’s attorney learned that Dr. Levesque might be doing this, he sent

LINA a letter revoking any consent that DuPerry had given for her doctors

to speak to LINA’s physicians by phone, stating, "It has been my experience that such peer-to-peer contacts frequently result in disputes about

what was said by the treating physician." J.A. 215. The letter made clear,

however, that LINA was free to request DuPerry’s medical records and

submit any questions to the doctors in writing through DuPerry’s attorney.

10 DUPERRY v. LIFE INSURANCE COMPANY
limitations imposed on [DuPerry’s] ability to work

by her [treating physicians].

J.A. 144.

Based on Dr. Levesque’s review, by letter dated February

15, 2008, LINA once again affirmed its decision to deny

DuPerry’s claim for LTD benefits. The letter summarized Dr.

Levesque’s conclusions and stated that DuPerry had "exhausted all administrative levels of appeal and no further

appeals w[ould] be considered." J.A. 165.

DuPerry filed this action pursuant to 29 U.S.C.A.

§ 1132(a)(1)(B) of ERISA, in federal district court on July 18,

2008, alleging that she was wrongly denied benefits under the

Policy. LINA answered, denying that DuPerry was eligible

for benefits. On August 10, 2009, the district court granted

judgment to DuPerry, ordering LINA "to pay [DuPerry] disability income benefits as calculated under the provisions of

the Policy, from the expiration of plaintiff’s elimination

period through the date of this order." J.A. 1014. 

Observing that "[t]his case falls into that difficult class of

ERISA disability cases involving subjective complaints of

pain as a primary cause and driver of the insured’s claim of

disability," J.A. 1008, the district court noted that no language

in the plan specifically concerned the evaluation of claims

involving subjective complaints of pain. The court reasoned:

Where the plan documents do not provide a procedure for dealing with disability claims based on subjective complaints of pain, a plan administrator

employing a principled reasoning process need not

simply accept a claimant’s subjective complaints of

pain without question, especially if there is other

conflicting evidence in the record. Neither, however,

can a plan administrator in such a situation simply

dismiss such subjective complaints of pain out of

DUPERRY v. LIFE INSURANCE COMPANY 11
hand, especially where there is objective medical

proof of a disease that could cause such pain.

J.A. 1009.

LINA pointed to statements in six health care records as

conflicting with DuPerry’s complaints of disabling pain and

fatigue. The district court concluded, however, that the

alleged conflicts were only "minor inconsistencies," not "the

type of substantial conflicting evidence that a plan administrator can use to justify a denial of benefits." J.A. 1012. While

LINA attempted to use some of this evidence to justify a conclusion that Dr. Patel may not have actually believed that

DuPerry was unable to return to work, the court concluded

that the remaining evidence in the record clearly demonstrated

that Dr. Patel believed DuPerry could not return, and that

LINA’s own notes reflected that. As for Dr. Levesque’s

reports, the court noted that Dr. Levesque dismissed the

notion that DuPerry’s fibromyalgia was disabling "because of

‘the absence of physical limitations due to this problem’ and

‘the lack of physical findings associated with this diagnosis.’"

J.A. 1013. But, the court noted that the presence of painful

trigger points that are indicative of fibromyalgia "were amply

documented," J.A. 1013 n.11, and the court concluded that

Dr. Levesque offered no basis for his rejection of DuPerry’s

evidence that her pain from that condition was physically disabling. To the extent that Dr. Levesque believed that DuPerry

was in fact unable to work but was not "disabled" because her

inability to work was due only to pain or other self-reported,

subjective symptoms, the court reasoned that Dr. Levesque

was utilizing a definition of "disabled" plainly at odds with

the one given in the plan. Thus, the court concluded that "[b]y

adopting Dr. Levesque’s opinion, [LINA] essentially grafted

a new limitation regarding disability onto the plan" that the

language of the plan did not support. J.A. 1014.

LINA moved to alter the judgment to limit payment of benefits to the period running from the expiration of DuPerry’s

12 DUPERRY v. LIFE INSURANCE COMPANY
elimination period through October 5, 2008, which is the end

of the term for which LINA determines disability according

to DuPerry’s ability to perform the duties of her regular occupation ("the regular-occupation period"). LINA argued that

the district court could not award benefits for the subsequent

"any-occupation" period because LINA had not considered

DuPerry’s claim under the standard that applied for that

period. Thus, LINA requested that the court remand to the

plan administrator for a decision regarding benefits for this

period. The district court denied the motion, concluding that

remand was not appropriate because the record clearly

showed the DuPerry was entitled to benefits for both periods.

The court also awarded prejudgment interest and attorney’s

fees.

II.

LINA first argues that the district court erred in concluding

as a matter of law that LINA abused its discretion in denying

DuPerry’s claim. We disagree.

In reviewing the denial of benefits under an ERISA plan,

a district court first must consider de novo whether the relevant plan documents confer discretionary authority on the

plan administrator to make a benefits-eligibility determination. See Johannssen v. District No. 1-Pac. Coast Dist.,

MEBA Pension Plan, 292 F.3d 159, 168 (4th Cir. 2002).

"When a plan by its terms confers discretion on the plan’s

administrator to interpret its provisions and the administrator

acts reasonably within the scope of that discretion, courts

defer to the administrator’s interpretation." Colucci v. Agfa

Corp. Severance Pay Plan, 431 F.3d 170, 176 (4th Cir. 2005).

The parties agree that the plan confers discretionary authority

upon LINA, as the plan administrator, to make benefit decisions according to the plan’s terms. 

Under the abuse-of-discretion standard, the reviewing court

will set aside the plan administrator’s decision only if it is not

DUPERRY v. LIFE INSURANCE COMPANY 13
reasonable. See Stup v. UNUM Life Ins. Co. of Am., 390 F.3d

301, 307 (4th Cir. 2004). The administrator’s decision is reasonable "if it is the result of a deliberate, principled reasoning

process and if it is supported by substantial evidence," Bernstein v. CapitalCare, Inc., 70 F.3d 783, 788 (4th Cir. 1995)

(internal quotation marks omitted), which is "evidence which

a reasoning mind would accept as sufficient to support a particular conclusion," LeFebre v. Westinghouse Elec. Corp.,

747 F.2d 197, 208 (4th Cir. 1984) (internal quotation marks

omitted).

In Booth v. Wal-Mart Stores, Inc. Associates Health & Welfare Plan, 201 F.3d 335 (4th Cir. 2000), we set forth eight

nonexclusive factors to be considered by courts in reviewing

the a plan administrator’s decision for reasonableness:

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 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.

Id. at 342-43. These factors continue to guide our abuse-ofdiscretion review under ERISA. See Williams v. Metropolitan

Life Ins. Co., 609 F.3d 622, 630 (4th Cir. 2010).

Prior to the Supreme Court’s issuance of Metropolitan Life

Insurance Co. v. Glenn, 554 U.S. 105 (2008), our precedent

called for review of a plan administrator’s decision under a

"modified abuse-of-discretion" standard. See Ellis v. Metro14 DUPERRY v. LIFE INSURANCE COMPANY
politan Life Ins. Co., 126 F.3d 228, 233 (4th Cir. 1997).

Under this standard, when a plan administrator had a conflict

of interest because the administrator was responsible for both

evaluating and paying claims, courts would afford less deference to the administrator’s decision. See id. In Glenn, however, the Supreme Court clarified that the presence of such a

conflict does not alter the applicable standard of review, but

rather is "but one factor among many that a reviewing judge

must take into account." Glenn, 554 U.S. at 116. In the present case, because LINA insures the plan as well as administering it, LINA has a "structural conflict of interest," Williams,

609 F.3d at 632, and we therefore consider this factor in

determining the reasonableness of LINA’s decision, see

Glenn, 554 U.S. at 112. 

LINA points to seven items of evidence in defending the

reasonableness of its decision to deny DuPerry’s claim:

• Dr. Patel’s statement in his May 31, 2006,

Attending Physician Statement that DuPerry

could perform some "[s]edentary" job functions.

J.A. 797. 

• Dr. Patel’s November 3, 2006, telephone message stating that DuPerry’s arthritis was "controlled" and that she had had a "good response"

to medications and had "not called [with] complaints" since September 2006. J.A. 898.

• Dr. Harris’s statement in his October 25, 2006,

Physical Ability Assessment form that DuPerry

was able to perform functions associated with

sedentary work.

• Dr. Patel’s letter dated January 12, 2007, stating

that DuPerry’s "arthritis is moderately active and

has been reasonably well controlled with . . .

medications" and that her "fibromyalgia and

DUPERRY v. LIFE INSURANCE COMPANY 15
fatigue symptoms are secondary to her underlying disease process and are all managed with . . .

medications." J.A. 518.

• DuPerry’s physical therapist’s note in an assessment that DuPerry demonstrated excellent compliance, made small strength and endurance

gains, could complete ten laps around the gym

track in nine minutes, and did not note any limitations or restrictions due to pain. 

• DuPerry’s blood tests showing normal levels of

hematocrit and hemoglobin. 

• Dr. Levesque’s determination that DuPerry’s

doctors’ opinions that she could not return to

work were unsupported.

Of course, we begin with the language of the Policy. During the regular-occupation period, the Policy provided that

DuPerry was "[d]isabled"

if, solely because of Injury or Sickness, . . . she

[wa]s: 

1. unable to perform the material duties of . . . her

Regular Occupation; and 

2. unable to earn 80% or more of . . . her Indexed

Earnings from working in . . . her Regular Occupation.

J.A. 58. DuPerry’s case turned on the question of whether she

was in fact unable to perform the material duties of her job.

LINA makes no argument that even if DuPerry was unable to

perform those duties, her inability was not "solely because of

16 DUPERRY v. LIFE INSURANCE COMPANY
Injury or Sickness."5

 Thus, it is the former issue on which we

focus our discussion.

Initially, we note, as a global matter, that the pieces of evidence LINA identifies tend to show, first, that DuPerry was

able to perform, for relatively brief periods, certain tasks

involved in sedentary work and, second, that certain individual diseases and physical problems that afflicted her were not

sufficient, in isolation, to render her unable to do such work.

However, to perform her job, DuPerry obviously would be

required to do much more than perform a small subset of her

duties for a relatively short duration. Moreover, in so doing,

she would have to overcome the combined effect of all of the

problems caused by her diseases, not just a select few. 

Now we will address the individual pieces of evidence that

LINA has identified and "the degree to which they support"

LINA’s decision to deny benefits. Booth, 201 F.3d at 342.

First, in a question on a form asking for "the maximum level

of ability . . . of your patient to" lift, carry, push, and pull, Dr.

Patel marked the choice "Sedentary = 10 lbs. maximum,

walking occasionally." J.A. 797. While that answer certainly

was some evidence of the fact that Dr. Patel believed that

DuPerry could at times complete those individual tasks, as we

have explained, that is a separate question altogether from

whether she could perform the material duties of her job,

which required many hours of work several days per week

apart from these tasks. See Stup, 390 F.3d at 309 (explaining

that even if two-and-a-half-hour functional capacity examination "had shown conclusively that [the claimant] could perform sedentary tasks for the duration of the test," the results

would "provide no evidence as to [the claimant’s] abilities for

a longer period"). Dr. Patel left no doubt regarding the latter

question as he wrote on that very form that DuPerry could

5Nor does LINA argue that even if she was unable to perform her regular occupation, she could earn at least 80% of her indexed earnings. 

DUPERRY v. LIFE INSURANCE COMPANY 17
"[n]ever" return to work because she was "[p]ermanently disabled." J.A. 797. 

For similar reasons, Dr. Harris’s checking "[o]ccasionally"

in a number of blocks on a Physical Ability Assessment Form

concerning how often DuPerry could perform certain tasks

such as sitting, standing, and walking did not conflict with his

opinion that she could not return to work. J.A. 768. Aside

from the fact that performing these individual tasks comprised

only a small part of DuPerry’s workday, it is noteworthy that

the form defined "[o]ccasionally" alternatively as 1% to 33%

of an eight-hour day or less than 2.5 hours.

6

 J.A. 768.

The physical therapist’s note that DuPerry had made "small

strength and endurance gains" obviously also falls well short

of creating a conflict with DuPerry’s doctors’ opinions for the

same reason. J.A. 813. That DuPerry made small gains in no

way calls into question DuPerry’s doctors’ opinions that she

still was not able to return to work. Nor does the physical

therapist’s note stating that she was able to complete ten laps

around a 170-foot track in nine minutes create such a conflict.

Aside from the fact that this pace is only slightly more than

two miles per hour, the test lasted only nine minutes. It could

hardly be found to be instructive on the question of whether

DuPerry could endure the rigors of a full workday or workweek. The same can be said of LINA’s citation to DuPerry’s

"excellent compliance" with her strength and conditioning

exercises, which indicates only that DuPerry was giving her

best effort. J.A. 813.

Dr. Patel’s telephone message of November 3, 2006, also

creates no conflict. According to that message, Dr. Patel

reported:

[DuPerry] unable to work [due to] Fibromyalgia,

fatigue as well as side effects of pain meds – these

6

1% of an eight-hour workday is less than five minutes. 

18 DUPERRY v. LIFE INSURANCE COMPANY
are what is limiting [DuPerry], symptoms overall w/

achiness and stiffness w/ weather changes, no other

major complaints at this time, to continue on medshaving good response so far – has not called w/ complaints, have not se[e]n since Sept – Rheumatoid

arthritis is controlled at this point in time –

[DuPerry] not able to work [due to] pain and

fatigu[ ]e as well as pain med side effects.

J.A. 898. LINA focuses on the part of the message stating that

DuPerry’s arthritis is under control, but it is hard to see how

that matters much in light of Dr. Patel’s statement that her

pain, fatigue, and side effects from her medications were preventing her from working. 

Similarly, Dr. Patel’s January 12, 2007, letter does not

undercut his opinion that DuPerry was disabled. The letter

reported:

[DuPerry’s] arthritis is moderately active and has

been reasonably well controlled with the medications

she is on . . . . However, her fibromyalgia and fatigue

symptoms are secondary to her underlying disease

process and are all managed with the medications. It

makes it difficult for her to function and return back

to previous work duties. At this time, she certainly

has some limitations requiring a hospital bed at

home to sleep comfortably on. She has trouble getting up and around, although the pain is reasonably

well controlled with the pain medications. At this

time, because of the above medical problems and

complications thereof and medications, she certainly

is not able to return to any previous work duties.

J.A. 518. Again, the fact that her arthritis was under control

and that her pain may have been well controlled with pain

medications does not conflict at all with Dr. Patel’s view that

the combination of DuPerry’s pain, fatigue, and the effects of

DUPERRY v. LIFE INSURANCE COMPANY 19
her medication prevented her from engaging in gainful

employment.

As for Dr. McCool’s note that DuPerry’s blood test results

showed her "hematocrit and hemoglobin around 11/32," J.A.

874, LINA does not explain how this advances its cause.

LINA maintains, without explanation, that this note indicates

that the results "contradicted [DuPerry’s] subjective complaints of fatigue." Brief of Appellant at 12. DuPerry, however, argues that low scores on these blood tests are indicative

of anemia and that DuPerry did not claim to be suffering

from anemia, which is not a by-product of arthritis or fibromyalgia. See MedicineNet.com, http://www.medicinenet.com/

hematocrit/article.htm (last visited Dec. 16, 2010); MedicineNet.com, http://www.medicinenet.com/hemoglobin/page2.htm

(last visited Dec. 16, 2010). LINA does not explain how these

blood tests conflict with DuPerry’s claim that she is disabled.

In short, LINA has not satisfactorily explained how any of

the first six pieces of evidence it identifies creates any significant reason to doubt the correctness of the opinions offered by

Drs. Patel and Harris that "solely because of Injury or Sickness," DuPerry was "unable to perform the material duties of

. . . her Regular Occupation." J.A. 124 (Policy). That leaves

LINA only with Dr. Levesque’s reports, to which we now

turn.

Dr. Levesque acknowledged in both reports that DuPerry

suffers from rheumatoid arthritis and fibromyalgia, but he

found no reason for concluding that either disease prevented

DuPerry from being able to work. In his January 31, 2008,

report, he stated that while "[t]he records amply document"

DuPerry’s "problems with chronic pain and fibromyalgia . . .

given the absence of physical limitations due to [fibromyalgia], there is nothing that would preclude [DuPerry] normally

from pursuing a typical sedentary occupation." J.A. 174

(emphasis added). He added that "[g]enerally, patients with

fibromyalgia are able to work a sedentary occupation." J.A.

20 DUPERRY v. LIFE INSURANCE COMPANY
174. In his February 10, 2008, report Dr. Levesque further

acknowledged that fibromyalgia is the "underlying major

diagnosis for [DuPerry’s] pain" but stated that "given the lack

of physical findings associated with the diagnosis, it does not

adequately support the limitations imposed" on DuPerry’s

ability to work by her treating physicians. J.A. 144 (emphasis

added). 

Dr. Levesque’s reasoning is cryptic, to be sure, and it is not

for us to second-guess LINA’s reading of the reports to the

extent it was reasonable. Nevertheless, we agree with the district court that under any permissible reading, the reports do

not provide a reasonable basis for denial of DuPerry’s claim.

We will address the possible meanings of the reports seriatim.

First, it is possible that Dr. Levesque simply concluded that

DuPerry did not produce the type of evidence that would

show that the pain and fatigue caused by her fibromyalgia and

other conditions was so substantial that she could not perform

the material duties of her job. However, DuPerry produced

the only types of evidence a claimant in her situation could

produce, her own description of the severity of her subjective

symptoms, videos showing how she moved in her condition,

and her treating physicians’ opinions that the pain and fatigue

rendered her unable to work. As the Policy contained no provision precluding DuPerry from relying on her subjective

complaints as part of her evidence of disability, LINA could

not reasonably deny her claim because of such reliance. Cf.

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

2004) (discussing plan stating that limited benefits would be

provided for a disability "due to a diagnosed condition which

manifests itself primarily with Self-Reported Symptom(s)").

Second, it is possible that Dr. Levesque simply was not persuaded that DuPerry was rendered unable to work by the pain

and fatigue she experienced from her fibromyalgia and her

other conditions. If that was Dr. Levesque’s opinion, we cannot conclude that the opinion was "deliberate" or "principled."

DUPERRY v. LIFE INSURANCE COMPANY 21
Although Dr. Levesque did not examine DuPerry, he noted

that review of her videos indicated that her rheumatoid arthritis was sufficiently controlled that it would not prevent her

from working. However, he did not report seeing anything in

the videos that would cause him to doubt her claim and those

of her treating doctors that her pain and fatigue from her

fibromyalgia and her other conditions prevented her from

enduring the rigors of the workweek. Dr. Levesque, of course,

noted that "[g]enerally, patients with fibromyalgia are able to

work a sedentary occupation." J.A. 174 (emphasis added).

However, even if fibromyalgia were the only condition

afflicting DuPerry, Dr. Levesque’s observation would be

insufficient to create any conflict with DuPerry’s claim absent

evidence that DuPerry’s symptoms were no worse than average in severity. And, of course, fibromyalgia was not DuPerry’s only condition. 

Considering all of the evidence together, we simply see no

reasonable basis in the record for LINA’s denial of DuPerry’s

claim. It is undisputed that DuPerry suffers from chronic diseases that are potentially debilitating. She has presented substantial evidence from her physicians that these diseases do,

in fact, prevent her from working. And, she has presented her

own declaration and declarations from her family and even

her former employer confirming the severity of her symptoms. The only evidence of any consequence that LINA can

point to as conflicting with DuPerry’s entitlement to benefits

are the reports of Dr. Levesque. However, these reports contain no significant basis supporting a conclusion that the

symptoms from DuPerry’s fibromyalgia, either by themselves

or combined with the symptoms from her other conditions,

are not sufficiently severe as to prevent her from enduring the

rigors of her workweek. Especially in light of the structural

conflict present here by virtue of LINA’s dual role as insurer

and administrator of the plan, we conclude that LINA’s denial

of DuPerry’s claim was unreasonable and an abuse of its discretion. Cf. Stup, 390 F.3d at 308 (explaining in pre-Glenn

case applying modified-abuse-of-discretion standard that

22 DUPERRY v. LIFE INSURANCE COMPANY
"while an administrator does not necessarily abuse its discretion by resolving an evidentiary conflict to its advantage, the

conflicting evidence on which the administrator relies in

denying coverage must be ‘substantial’—especially when, as

in this case, the administrator has an economic incentive to

deny benefits"). 

III.

LINA next contends that the district court erred in importing a Social Security Disability Income rule into the ERISA

arena. Of course, we have decided de novo that LINA abused

its discretion in denying DuPerry’s claim. Nevertheless, to the

extent that LINA’s argument would apply to our analysis as

well, we will address it. 

LINA notes that the district court reasoned:

[W]here an ERISA plan does not provide procedures

for dealing with subjective complaints of pain and a

claimant puts forth objective evidence of a disease

that could cause her subjective complaints of pain, it

seems that a principled reasoning process necessarily

requires the administrator to address the claimant’s

subjective complaints of pain in a thorough, meaningful way if the administrator is to deny the claim.

J.A. 1009-10. LINA maintains that that rule is at odds with

our decision in Smith, in which we rejected a similar rule. We

disagree.

In Smith, the district court, rather than applying the language in the plan under which the plaintiff claimed benefits,

imported the Social Security Act ("SSA") rule that 

[o]nce an underlying physical or mental impairment

that could reasonably be expected to cause pain is

shown by medically acceptable objective evidence,

DUPERRY v. LIFE INSURANCE COMPANY 23
such as clinical or laboratory diagnostic techniques,

the adjudicator must evaluate the disabling effects of

a disability claimant’s pain, even though its intensity

or severity is shown only by subjective evidence.

Smith, 369 F.3d at 418 (internal quotation marks omitted). We

reversed and remanded to the district court, holding that the

language of the plan controls even if applying the plan terms

would produce a different result than would be produced by

the SSA rules. See id. at 419-20. The critical difference in the

present case is that although the district court in the case at

bar applied a rule similar to that applied by the district court

in Smith, the district court in the case at bar derived that rule

from a common-sense interpretation of the plan language

rather than by importing the rule from SSA. In fact, the district court in this case specifically acknowledged that SSA

rules would not necessarily apply. 

LINA maintains that under the rule the district court

applied, LINA was essentially required to award benefits simply based on DuPerry’s subjective complaints. But that is not

the case at all. As the district court explained, LINA was not

required to "simply accept [DuPerry’s] subjective complaints

of pain without question," but neither could LINA "simply

dismiss such subjective complaints of pain out of hand, especially where there is objective medical proof of a disease that

could cause such pain." J.A. 1009. Neither LINA nor Dr.

Levesque gave any principled reason for rejecting DuPerry’s

claim that her symptoms prevented her from returning to

work, and in fact none exists in the record. The mere fact that

Dr. Levesque offered the conclusion that DuPerry had not

adequately supported her claim that she could not return to

work was not sufficient to support the benefits denial, especially considering LINA’s conflict of interest. 

LINA also argues that the district court’s "rule would vitiate years of ERISA case law upholding plan administrators’

interpretations of their plans to require more than just subjec24 DUPERRY v. LIFE INSURANCE COMPANY
tive complaints to support a claim for benefits." Brief of

Appellant at 37. Even assuming, however, that subjective

complaints cannot be sufficient, by themselves, to support a

disability benefits claim, that is not the case we have here

because DuPerry’s subjective complaints were only part of

the evidence of her condition. The existence of objective evidence that DuPerry suffered from rheumatoid arthritis, osteoarthritis, and fibromyalgia is not disputed. That a person with

these diseases would suffer significant pain and fatigue is also

well established. DuPerry’s subjective complaints served only

to pinpoint the precise intensity of her symptoms and her

inability to endure them over the course of a workweek. In the

absence of any significant basis for rejecting the account of

DuPerry and her treating physicians and in light of the structural conflict of interest that LINA faced as the result of its

dual role as administrator and insurer, LINA’s denial of benefits constituted an abuse of discretion.

IV.

Having determined that LINA abused its discretion in

denying DuPerry’s benefits claim, we next must determine

what remedy to apply. 

As noted earlier, "[d]isabled" is defined in two different

ways in the Policy. First, during the regular-occupation

period, a participant is disabled if, because of injury or sickness, she is "unable to perform the material duties of . . . her

Regular Occupation" and "unable to earn 80% or more of . . .

her Indexed Earnings." J.A. 58. This is the definition that was

applicable to DuPerry’s claim when LINA denied it. However, once Disability Benefits have been payable for 24

months, the "any-occupation" period begins and a participant

is considered to be disabled only if, because of injury or sickness, she is "unable to perform the material duties of any

occupation" and is "unable to earn 60% or more of . . . her

Indexed Earnings." J.A. 58. DuPerry’s any-occupation period

of disability began on or about October 5, 2008.

DUPERRY v. LIFE INSURANCE COMPANY 25
LINA notes that it has not received evidence regarding, nor

made any determination of, DuPerry’s right to any-occupation

disability benefits. LINA contends that the record thus is not

sufficient to support an analysis of whether DuPerry was entitled to such benefits because, among other things, "there is no

evidence as to the universe of occupations for which DuPerry

would be eligible. Nor is there any evidence as to the potential

earnings DuPerry could realize from these occupations." Brief

of Appellant at 53-54. We conclude, however, the district

court acted correctly.

It is true that generally a claimant must exhaust the administrative remedies provided in an employee benefit plan

before prosecuting an ERISA claim in federal court. See

Hickey v. Digital Equip. Corp., 43 F.3d 941, 945 (4th Cir.

1995). However, a "clear and positive" showing that such

exhaustion would be futile will circumvent this requirement.

Makar v. Health Care Corp. of Mid-Atlantic (CareFirst), 872

F.2d 80, 83 (4th Cir. 1989) (internal quotation marks omitted). We review for abuse of discretion a district court’s decision regarding whether to remand an ERISA benefits claim

for exhaustion of administrative remedies. See Oliver v. Coca

Cola Co., 497 F.3d 1181, 1200 (11th Cir.), vacated in part on

other grounds, 506 F.3d 1316, 1317 (11th Cir. 2007) (per

curiam); Dozier v. Sun Life Assurance Co. of Canada, 466

F.3d 532, 534 (6th Cir. 2006); Hickey, 43 F.3d at 945.

In this case, DuPerry can hardly be blamed for not applying

to LINA for benefits during the any-occupation period as

LINA, having denied DuPerry’s claim under the regularoccupation standard, would have surely denied a claim under

the any-occupation standard as well. See Dozier, 466 F.3d at

535. And, while LINA has not yet passed on the question of

whether DuPerry could satisfy the any-occupation standard, in

this case there is no indication that the change in standard

would affect the result. Specifically, it is apparent from the

record that DuPerry’s inability to work was not the result of

particular duties specific to her regular occupation. Dr. Patel

26 DUPERRY v. LIFE INSURANCE COMPANY
indicated that DuPerry was "[p]ermanently disabled" and that

she could "[n]ever" return to work. J.A. 797. As her dosage

of pain medication continued to increase, he reported that

DuPerry "need[ed] to limit her activities" such that if she did

"five to ten minutes of work," she needed to "rest[ ] for 30 to

40 minutes before returning . . . to work duties." J.A. 229. Dr.

Harris stated that he informed DuPerry in May 2005 "that she

needed to stop work," but that she continued working until

February 6, 2006, when she simply could not control her

increasing pain. J.A. 462. As of November 27, 2006, Harris

opined that DuPerry was "unable to continue any gainful

employment." J.A. 462. As we have explained, there was no

principled basis in the record to reject these doctors’ opinions.

Thus, we believe this is one of those rare cases where a

remand to the plan administrator would serve no purpose.

Under the circumstances of this case, we hold that the district

court was within its discretion in awarding DuPerry benefits

up to the date of its decision in lieu of remanding to LINA.

See Oliver, 497 F.3d at 1200 (affirming district court decision

that because remand to plan administrator would have been

futile, claimant was entitled to benefits during any-occupation

period as well as during regular-occupation period even

though claimant had applied for benefits during regularoccupation period); Dozier, 466 F.3d at 535-37 (in case in

which district court granted judgment to claimant based on

satisfaction of regular-occupation standard of disability,

reversing district court’s dismissal of claim for benefits made

under any-occupation standard of disability when remand to

administrator would have been futile).

V.

Finally, LINA contends that the district court abused its

discretion in awarding attorneys’ fees to DuPerry. See Carolina Care Plan, Inc. v. McKenzie, 467 F.3d 383, 390 (4th Cir.

2006) (standard of review). We disagree.

DUPERRY v. LIFE INSURANCE COMPANY 27
We have adopted a five-factor test to guide courts’ discretion in determining whether an attorneys’ fee award is warranted under ERISA. The five factors are:

(1) degree of opposing parties’ culpability or bad

faith;

(2) ability of opposing parties to satisfy an award of

attorneys’ fees;

(3) whether an award of attorneys’ fees against the

opposing parties would deter other persons acting

under similar circumstances;

(4) whether the parties requesting attorneys’ fees

sought to benefit all participants and beneficiaries of

an ERISA plan or to resolve a significant legal question regarding ERISA itself; and

(5) the relative merits of the parties’ positions.

Quesinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1029

(4th Cir. 1993).

The district court concluded that on balance these factors

weighed in favor of a fee award. Regarding the first and fifth

factors, the court noted that while LINA’s "conduct may not

rise to the level of bad faith, [LINA] certainly demonstrates

some degree of culpability in its dismissal of [DuPerry’s] subjective complaints without meaningful inquiry." J.A. 1047.

The court noted that LINA "patently abused the claim review

procedure" by "overlook[ing] substantial evidence from

[DuPerry’s] treating physicians that she was unable to work"

and relying instead "on minor inconsistencies in and disingenuous interpretations of these physicians’ reports." J.A. 1047.

The court also found that "awarding attorneys’ fees may produce a deterrent effect by encouraging plan administrators to

28 DUPERRY v. LIFE INSURANCE COMPANY
inquire more meaningfully into disability claims that rely on

subjective complaints of pain." J.A. 1047. 

In our view, the district court analyzed the Quesinberry factors reasonably, and we find that the decision to award attorneys’ fees did not constitute an abuse of discretion.

VI.

In sum, we find no error in the district court’s resolution of

the questions before it. We therefore affirm.

AFFIRMED

DUPERRY v. LIFE INSURANCE COMPANY 29