UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 00-60367

MOSTAFA ABOUL-FETOUH,

Plaintiff-Appellant,

VERSUS

EMPLOYEE BENEFITS COMMITTEE, as Administrator and named

Fiduciary of the Group Insurance Plan; THE HARTFORD LIFE

AND ACCIDENT INSURANCE COMPANY, as the Group Insurance Plan;

ENTERGY OPERATIONS, INCORPORATED, a Division of Entergy

Corporation, as Fiduciary of the Group Insurance Plan,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

March 16, 2001

Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

This is an ERISA benefits cas e. Plaintiff-plan beneficiary

Mostafa Aboul-Fetouh appeals fromthe district court's order

granting summary judgment in fa vor of defendant-employer Entergy

Operations, Inc. (Entergy), defendant-plan administrator Employee

Benefits Committee (EBC), and defendant-claims administratorinsurer The H artford Life and Accident Insurance Company

(Hartford). We affirm.1 The recor d contains two versions of the relevant plan.

One appears to be the original 1990 plan, as amended in 1992, while

the other is an amend ed and restated version of the plan dated

March 1, 1997. Aboul-Fetouh claims that his entitlement to

disability benefits is controlled by the January 1990 plan, while

the defendants maintain that his entitle ment to benefits is

controlled by the March 1997 plan. For the most part, the

co ntrolling terms material to our disposition are substantively

ident ical in both plans. To the extent there is any relevant

conflict in plan ter ms, we apply the terms set out in the 1990

plan. The March 1997 version of the plan was not promulgated until

after Aboul-Fetouh was no longer entitled to benefits. Moreover,

Hartford's final determination letter denying Aboul-Fetouh's claim

for a continuation of long term disability payments appears to be

based upon terms specific to the 1990 plan. While an

administrator's decision to apply one version of the plan over

another when making a benefit determin ation is entitled to some

deference, see Matassarin v. Ly nch , 174 F.3d 549, 564 (5 t h Cir.

1999), cert. denied

, 120 S. Ct. 934 (2000); Spacek v. Maritime

Ass'n

, 134 F.3d 283, 292-93 (5 th Cir. 1998), there is no like

principle requiring deference to an administrator's decision to

apply one version of the plan to deny benefits, and a second

version to defend that decision in subsequent litigat ion. When

these facts are construed in Aboul-Fetouh's favor, we conclude that

the 1990 plan must be viewed as providing the controlling language

2 I.

Between April 1989 and April 1997, Aboul-Fetouh, who has a

masters degree in engineering, was employed by Entergy as a

technical or senior engineer. In 1990, Entergy Corporation

established the Entergy Corporation Companies' Benefits Plus Long

Term Disability Plan (the plan). The plan meets the requirements

of an employee welfare benefit plan as th at term is defined in

ERISA. S ee 29 U.S.C. § 1002(1). Entergy funded the plan with a

group insurance policy issued by Hartford.

Any review of an ERISA benefit determination must begin with

the relevant plan language. 1 The plan provides that it paysfor purposes of this appeal.

3

disability benefits:

[T]o a Me m ber if, while covered hereunder, the

Member (i) becomes Totally Disabled; (ii) remains

Totally Disabled throughout the Elimination Period;

(iii) remains Totally Disabled beyond the

Elimination Period; and (iv) submits proof of loss

satisfactory to the Claims Administrator.

The plan defines total disability as follows:

“ Totally Disabled ” means that during the

Elimination Period and for the next 24 months, the

M ember is prevented by Disability from doing all

the material and substantial duties of this own

occupation. After that, “Totally Disabled” means

t hat the Member is prevented by such Disability

from doing any occupation o r work for which he is

or could become qualified by training, education,

or experience.

The plan defines the elimination period as follows:

“ Elimination Period ” means the fir st 6 months of

any one period of Total Disability before benefits

are payabl e under this Plan. Notwithstanding any

other provision contained herein to the contrary,

if a Member ceases to be Total ly Disabled and

returns to work for a total of 14 or fewer days

during an Elimination Period, the Elimination

Period shall not be interrupted or extended.

Except as otherwise set forth herein, the Member

must be Totally Disabled by the same condition for

the entire Elimination Period.

Generally, a participant must be disabled by the same condition for

the entire elimination period. Moreover, even a series of

causally-related d isabilities, each lasting less than six months

alone, but adding up to an aggregate of six months when combined,

will generally not suffice to establish total disability throughout

the elimination period. There are, however, at least two4

exceptions. First, the elimination period will not be interrupted

if the participant returns to work during the elimination period

for a period of fourteen or fewer days. Second, when the

participant suffers from a second period of disability which is (1)

caused by the same or a related conditi on, and (2) begins within

three months after the first period of disability terminates, then

the second period of disability wil l be tacked on to the first

period of disability and the two periods will be considered a

single period of continuous disability under the plan. The plan

terms describing this feature provide:

“ Period of Disability ” means a continuous length of

t ime during which a Member is Disabled unde r this

Plan.

Successive Periods of Disability

. If successive

Periods of Dis ability are (i) due to the same

cause; or (2) due to a related cause; and (3)

separated by 3 months or less; then such successive

periods shall be considered one Period of

Disability, provided the Plan remains in effect.

When, as here, the participant becomes totally disabled before

age 62, the plan potentially provides long term disability benefits

for a period of continuous disability until age 65. Benefits

terminate earlier, however, upon the o ccurrence of any of the

following circumstances:

(i) the date the Member is no longer Disabled;

(ii) the date on which the Member fails to furnish

proof that he is continuously Disabled;

(iii) the date on which the Member refuses to be

examined, if the Claims Administrator requires an

examination;5 (iv) the date o n which the Member first receives

retirement benefits from a plan provided or

sponsored by his Employer; [or]

(v) the date on which the Member dies.

Finally, the plan expressly limits the coverage for conditions

“caused, contribute d to, or made disabling by” most mental

illnesses to a lifetime maximum of twenty-four months. The

relevant plan term provides:

Additional Plan Limits . Notwithstanding any other

provision contained herein to the contrary, if the

M ember is Disabled because of: (i) psychosis or

neurosis; (ii) any condition caused, contributed

to, or made disabling by a psyc hosis or neurosis;

. . . then, subject to all other provisions of this

Plan, the Plan shall pay benefits only for so long

as the Member is confined in a hospi tal or other

place licensed to provide medical car e for such

Disability for at least 14 days; or when the Member

is not so confined, for a total of 24 months for

all such disabilities during his lifetime.

Having set forth the controlling plan terms, we turn to a

consideration of the facts relatin g to Aboul-Fetouh's claim for

long term disability benefits.

Aboul-Feto uh was first disabled by a knee injury in August

1993. Aboul-Fetouh filed a claim for long-term disability

benefits, which Hartford approved. In March 1994, Aboul-Fetouh's

treating physician, Dr. Tiwari, reported that Aboul-Fetouh was no

longer totally disabled and that he could return to work at the end

of April 1994. Aboul-Fetouh continued receiving benefits until he

returned to work on May 2, 1994.

Shortly thereafter, in July 1994, Aboul-Fetouh became disabled6

by a bout of major depression. Aboul-Fetouh filed a second claim

for long term disability benefits on July 15, 1994, which was

accompanied by a statement from his psychiatrist, Dr. Coleman. Dr.

Colem an stated that Aboul-Fetouh was totally disabled by

depression, but that Aboul-Fetouh was expected to make a "full

recovery" and to return to work on at least a part-time basis in

September 1994.

Earlier in July 1994, Aboul-Fetouh was seen by Dr. Tiwari and

by another medical provider, Dr. Nordal, Ph.D. Dr. Tiwari recorded

that Aboul-Fetouh was bei ng seen for a separate problem,

documenting that Aboul-Fetouh was complaining of crying spells,

memory loss, depression, and anxiet y. Dr. Tiwari conducted

clinical studies, including an MRI and EMG studies. The results of

these studies were either within normal limits or reported only as

minimally significant m edical findings. Dr. Nordal likewise

concluded that Aboul-Fetouh had difficulty controlling his emotions

and making decisions, and that Aboul-Feto uh was suffering from

severe anxiety and depression.

Hartford approved Aboul-Fetouh's second claim, but informed

Aboul-Fetouh that it was establishing a new elimi nation period

beginning on July 15, 1994, the date of his second disability

benefits claim, and ending six months later, on January 14, 1995.

Hartford also informed Aboul-Fetouh that it intended to rely upon

plan and policy language limiting coverage to a maximum of 24

months when the beneficiary is disabled by some form of mental7

disability. Hartford subsequently paid long-term disability

benefits to Aboul-Fetouh for the 24-month period beginning January

15, 1995 and ending January 14, 1997, and for a short time period

thereafter, ending in March 1997.

In the two-year period that Aboul-Fet ouh was receiving

disability benefi ts, he was receiving treatment from Dr. Coleman

for depression. During at least some of that period, he was also

receiving medical treatment from Dr. Tiwari for chronic pain in his

neck, chest, and lower back. In January 1996, Aboul-Fetouh also

consulted a rheumatologist, who prescribed injections for pain.

When Aboul-Fetouh's entitlement to long-term disability

benefits on the basis of his mental disability expired in January

1997, Aboul-Fetouh claimed that he was entitled to continued

benefits because he was totally disabled by chronic pain, a

condition that would no t be subject to the twenty-four month

limitatio n applicable to his claim for depression. Hartford

arranged for a functional capacity evaluation to determine whether

Aboul-Fetouh was totally disabled by chronic pain. The functional

capacity evaluation report stated that Aboul-Fetouh could perform

sedentary to light work, as required by his engineering position.

The evaluation specifically reported that Aboul-Fetouh was able to

lift 15 pounds floor-to-thigh and carry 20 pounds.

After receiving the functional capacity evaluation, Hartford

forwarded the report, together with Aboul-Fetouh's file, to a Dr.

Silver for an independent medical evaluation. Dr. Silver was8

charged with deciding whether Aboul-Fetouh was totally disabled by

a physical condition that would support the payment of benefits

beyond the twenty-four months paid for Aboul-Fetouh's claim based

upon depression and anxiety. Dr. Silver concluded that AboulFetouh’s depression was severe, but that he was physically capable

of returning to the work required by his employment with Entergy.

Hartford relied upon the functional evaluation and Dr. Silver’s

opinion to deny long-term disability payments beyond the twentyfour month period permitted for conditions “caused, contributed to,

or made disabling by” a psychosis or neurosis.

In May 1997, after Hartford denied an extension of benefits,

Aboul-Fetouh submitted Dr. Tiwari's statement that Aboul-Fetouh

suffered from chronic pain syndrome or fibromyalgia. Aboul-Fetouh

sought additional medical treatme nt for chronic pain in 1997 and

1998. While it is clear that Aboul-Fetouh was suffering from some

level of chronic pain, Dr. Tiwari himself assigned only a ten

percent disability rating to the whole body for the condition.

Medical tests conducted in this period reveal “mild” abnormalities,

but are likewise not supportive of Aboul-Fetouh's c laim of total

disability.

In October 1997, about nine months after Hartford discontinued

disability payments, Aboul-Fet ouh filed this lawsuit in federal

district court u nder ERISA. S ee 29 U.S.C. § 1132(a)(1)(B)

(providing that "a participant or beneficiary" may bring a civil9

action “to recover benefits due him under the terms of the plan, to

enforce his rights under the terms of the plan, or to clarify his

rights to future be nefits under the terms of the plan”). AboulFetouh sought to recover past and future long-term disability

benefits, as well as attorney fees and costs.

In March 1998, the case was stayed by agreement of the parties

pending Aboul-Fetouh’s exhaustion of administrative remedies.

While the case wa s stayed, Aboul-Fetouh and Hartford exchanged

additional information relating to the extent of Aboul-Fetouh’s

disability and medical condition. In October 1998, Hartford

subjected Aboul-Fetouh’s complete file to a second independent

medical evalu ation. The subsequent report concluded that AboulFetouh continued to suffer from severe and disabling depression, as

well as fibromyalgia and other mi ld problems affecting his neck,

shoulder and back, but that Aboul-F etouh no longer had any

continuing or totally di sabling physical condition. The report

concluded that Aboul-Fetouh was capable of returning to work.

In November 23, 1998, Hartford sent Aboul-Fetouh a final

determination letter denying Aboul-Fetouh’s claim for further

benefits under the plan. Hartford concluded that Aboul-Fetouh's

medical evidence failed to establish that he was totally disabled

by a physical impairmen t when his entitlement to long-term

disability benefits on the basis of the July 1994 depression and

anxiety claim expired.

In December 1998, the district court removed the stay and set2 Because we conclude that the administrator's

interpretation of the plan was legally correct and that there was

no abuse of the considerable discretion vested with the

admin istrator in this case, we need not and do not consider this

alternativ e basis for affirming the district court's summary

judgment in favor of the defendants.

10 scheduling deadlines. On June 15, 1999, defendant Hartford moved

for summary judgment, arguing that there was no legal error and no

abuse of discretion arising from its interpretation and application

of the plan. Defendants EBC and Entergy filed a separate pleading

joining in Hartford's motion and making an additional argument that

neither EBC nor Entergy were proper parties to the suit. 2 After a

hearing on the motions, the district court granted summary judgment

in favor of the defendants.

II.

Summary judgment is appropriate when there are no genuine

issues of material fact and the moving party is entitled to

judgment as a matter of law. S ee F ED

. R. C IV

. P. 56. This Court

reviews the district court's determination that the defendants were

entitled to judgment as a matter of law de novo, applying the same

standards as the district court. S ee Duffy v. Leading Edge Prods.

,

44 F.3d 308, 310 (5 th Cir. 1995).

A plan administrator's interpretation or application o f the

plan, including a denial of plan benefits challenged under

§ 1132(a)(1)(B), is reviewed de novo "unless the benefit plan gives

the administrator or fiduciary discretionary authority to determine11

eligibility for benefits or to construe the terms of the plan.”

Firestone Tire & Rubber Co. v. Bruch , 109 S. Ct. 948, 956-57

(1989). Many plans, like the Entergy plan at issue here, vest plan

administrators with broad discretion to interpret and apply to the

plan. In such cases, the "administrator’s interpretation of the

plan and action based the reon" is reversed only for "an abuse of

discretion." S

pacek v. Maritime Ass'n

, 134 F.3d 283, 292 (5 th Cir.

1998) (citing Bruch , 109 S. Ct. at 956). The abuse of discretion

standard applicable here is sometimes referred to or equated with

an "arbitrary and capricious" standard of review. See Matassarin

v. Lynch

, 174 F.3d 549, 563 (5 th Cir. 1999), cert. denied

, 120 S.

C t. 934 (2000); Penn v. Howe-Baker Eng'rs

, 898 F.2d 1096 , 1100 &

n.2a (5 th Cir. 1990).

"[T]he abuse of discretion standard may involve a two-step

process." S

pacek

, 134 F.3d at 292. First, the court determines

whether the administrator’s interpretation of the plan is legally

correct. I d

. at 292; Thre adgill v. Prudential Securities Group,

Inc.

, 145 F.3d 286, 292 (5 th Cir. 1998). For this analysis, plan

language is preeminent. If the court determines that the plan

administrator’s interpretation of the plan is legally correct, then

the administrator's inter p retation and the denial of benefits

should be upheld because there cannot have been any abuse of

discretion. See Spacek , 134 F.3d at 292. If, on the other hand,

the court determines that the plan administrator’s interpretation12

is not legally correct, then the court must proceed to determine

whether the administrator’s decision denying benefits was an abuse

of discretion. See Threadgill , 145 F.3d at 293; Spacek , 134 F.3d

at 292-93. The district court’s determination that the plan

administrator either did or did not abuse its discretion by denying

benefits is reviewed de novo. See Threadgill , 145 F.3d at 292.

III.

Aboul-Fetouh argu es that Hartford abused its discretion by

failing to treat the August 1993 period of disability and the July

1994 period of disability as a single period of disability under

the successive disability provision of the plan. In a related

argument, Aboul-Fetouh maintains that Hartford's benefit

determination was a n abuse of discretion because he has been

continuously and totally disabled by chronic pain since 1993.

Hartford defends its application of the successive disability

provision. Hartford maintains that its factual determination that

the August 1993 knee injury claim and the July 1994 depression

claim and subsequent period of disability had diff erent and

unrelated causes is supported by substantial evidence in the

record.

We agree. Dr. Tiwari's records reflect that Aboul-Fetouh had

reached a normal state and was ready to r eturn to work in late

April 1994. When Aboul-Fetouh returned to Dr. Tiwari in July 1994,

it was for the “separate” problem arising from crying s pells,13

m emory loss, depression, and anxiety. Aboul-Fetouh's subsequent

problems with that condition are well documented by those

physicians providing medical care in July 1994. While Aboul-Fetouh

may have continued to experience symptoms of pain in his neck,

shoulder, and back, there is no evidence that would support a

reasonable inference of total disab ility caused by such pain in

July 1994. We conclude, therefore, that Hartford did not apply an

incorrect interpretation of the plan and did no t abuse its

discretion in refusing to tie Aboul-Fetouh's August 1993 claim for

total disability caused by his kn ee injury and complications

arising from that injury and his July 1994 claim for depression and

anxiety together as a single continuing period of disability.

Aboul-Fetouh next maintains that Hartford abused its

discretion because the summary judgment evidence is sufficient to

create a fact question concerning whether he has been totally

physically disabled by chronic pain since 1993. Aboul-Fetouh does

not dispute that there are no objective medical records tending to

support his claim, but contends that Hartford cannot rely upon that

evidentiary deficiency because Dr. Tiwari explained that there is

no known etiology for his complaints of chronic pain, and therefore

no way to conclusively establis h disabling pain with objective

medical evidence.

We find no abuse of discretion in Hartford's benefit

deter mination. As an initial matter, the record evidence simply

does not support Aboul-Fetouh's assertion that he was continuously14

disabled between 1993 and 1997. In April 1994, Dr. Tiwari reported

t hat Aboul-Fetouh was fit and ready to return to work. AboulFetouh did in fact return to work until he became disabled by

anxiety and depression in July 1994. Even as late as June 1997,

Dr. Tiwari assigned only a ten percent disability rating on the

basis of A b oul-Fetouh's chronic pain and myofascial syndrome.

Moreover, we note that the key issue in this case is whether AboulFetouh was totally disabled by chronic pain as of March 1997, when

Hartford terminated benefits. Without regard to whether AboulFetouh was totally disabled by chronic pain between 1993 and that

time, the plan prov ides that benefits terminate when the

participant can no longer furnish proof of total disability. There

is no dispute about the fact that Aboul-Fetouh exha usted his

e ntitlement to benefits on the basis of his July 1994 claim for

depression and anxiety. Once those benefits were exhausted, AboulFetouh would not have been entitled to additional benefits unless

he could demonstrate total disability as of March 1997.

Hartford's denial of benefits was expressly tied to the

extensive medical evidence in this record. Hartford's determination was supported by the functional capacity test results, and

the two independent medical eva luations concluding that AboulFetouh could perform the level of work required for his position at

Entergy. While Aboul-Fetouh offers some evidence that he continued

seeki ng some treatment for pain, that evidence does not indicate

that Aboul-Fetouh suffered from those symptoms at such a level that15

he would have been unable to perform his work, the standard

required to support a finding of total disability.

Neither does Dr. Tiwari's statement that chronic pain is hard

to verify with objective medical evidence create a triable issue of

fact. Once Hartford demonstrated the absence of proof to support

Aboul-Fetouh’s claim of total disab ility, Aboul-Fetouh bore the

burden of coming forward with "concrete evidence" that there was a

genuine issue of material fact for trial

. See Duffy

, 44 F.3d at

310; see also Douglass v. United Serv. Auto. Ass’n , 79 F.3d 1415,

1429 (5 th Cir. 1996) (en banc) ("conclusory allegations,

speculation, and unsubstantiated assertions” are inadequate to

satisfy the non-movant's burden). Even assuming that chronic pain

may not be verified by any form of objective medical testing,

objective medical evidence is not the only means for establishing

an inability to perform relevant work. As just one example, AboulFetouh could have offered evidence directly contradicting

Hartford's evidence of his residual capacity for work.

Notwithstandi ng plenty of time for discovery and the

d e velopment of adequate medical records, Aboul-Fetouh has not

produced probative evidence that he could not perform the

substantial duties of his job in March 1997. Hartford’s

interpretation of the successive disability pr ovision and other

plan provisions is consistent with a fair reading and should be

considered legally correct as a matter of law. Hartford’s decision16

that Aboul-Fetouh did not suffer from any totally disabling

physical condition in March 1997 was based upon sound evidence and

was not an abuse of the discretion vested wit h Hartford by the

relevant plan terms.

For the foregoing reasons, the district court's grant of

summary judgment in favor of defendants Entergy Operations, Inc.,

Employee Benefi ts Committee, and The Hartford Life and Accident

Insurance Company is AFFIRMED

.