FILED

United States Court of Appeals

Tenth Circuit

August 11, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BARBARA COLLEEN HOLCOMB

Plaintiff - Appellant,

v.

UNUM LIFE INSURANCE

COMPANY OF AMERICA,

Defendant - Appellee.

No. 08-6183

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D. Ct. No. 5:07-CV-00862-W)

Robert J. Rosati, Fresno, California, appearing for Appellant.

Phillip G. Whaley (Patrick M. Ryan and Corey A. Neller, with him on the brief),

Ryan Whaley Coldiron Shandy PC, Oklahoma City, Oklahoma, appearing for

Appellee. 

Before TACHA, O’BRIEN, and GORSUCH, Circuit Judges.

TACHA, Circuit Judge.

Barbara Holcomb sued Unum Life Insurance Company of America

(“Unum”), challenging Unum’s decision to deny her long-term disability benefits
1

The Policy defines “gainful occupation” as “an occupation that is or can be

(continued...)

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under the Employee Retirement Income Security Act of 1974 (“ERISA”). See 29

U.S.C. § 1001 et seq. The district court ruled in Unum’s favor, and Ms. Holcomb

appeals. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM. 

I. BACKGROUND

Ms. Holcomb began working as a “Senior Vice President/Customer Service

Officer” at BancFirst Corporation (“BancFirst”) in 1999. In February 2003, Ms.

Holcomb, who had been diagnosed with fibromyalgia and lupus, ceased working. 

She reported experiencing extreme fatigue and arthritis that limited her capacity

to bend, walk, process information, and sit or speak for extended periods of time. 

Shortly thereafter, she applied for long-term disability benefits under BancFirst’s

long-term disability insurance plan, Policy No. 586452 001 (the “Policy”), which

was issued and administered by Unum. The Policy gives Unum “discretionary

authority to determine . . . eligibility for benefits and to interpret the terms and

provisions of the policy.” Under the Policy:

You are disabled when Unum determines that:

- you are limited from performing the material and substantial details

of your regular occupation due to your sickness or injury; and

- you have a 20% or more loss in your indexed monthly earnings due to

the same sickness or injury.

After 24 months of payments, you are disabled when Unum determines

that due to the same sickness or injury, you are unable to perform the

duties of any gainful occupation1

 for which you are reasonably fitted by
1

(...continued)

expected to provide you with an income at least equal to your gross disability

payment within 12 months of your return to work.” 

-3-

education, training or experience.

. . .

We will stop sending you payments and your claim will end on the

earliest of the following:

- during the first 24 months of payments, when you are able to work in

your regular occupation on a part-time basis but you choose not to;

- after 24 months of payments, when you are able to work in any gainful

occupation on a part-time basis but you choose not to; . . . 

- the date you are no longer disabled under the terms of the plan . . . .

Pursuant to the Policy, if an insured’s disabilities are “due to mental

illness” or “based primarily on self-reported symptoms,” the insured is entitled to

a “lifetime cumulative maximum benefit period . . . [of] 24 months.” The Policy

defines self-reported symptoms as:

the manifestations of your condition which you tell your physician, that

are not verifiable using tests, procedures or clinical examinations

standardly accepted in the practice of medicine. Examples of selfreported symptoms include, but are not limited to headaches, pain,

fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and

loss of energy.

Unum began paying long-term disability benefits to Ms. Holcomb on May

23, 2003. Unum advised her that its payments were “under reservation of rights,”

meaning Unum did not concede present or future liability. In August 2003, one

of Unum’s on-site physicians reviewed Ms. Holcomb’s medical file and filed a

report that concluded that her complaints of pain were not supported by “physical
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exam, testing or radiological findings.” The report noted, however, that her

medical records were insufficient “to allow for an independent assessment of the

claimant’s functional capacity.” In September 2003, Unum determined it was

liable under the Policy and it removed its reservation of rights. It then informed

Ms. Holcomb that it would continue to pay her benefits during a “limited pay

period up to 24 months” because her claim fell under the Policy’s provision for

“[d]isabilities . . . primarily based on self-reported symptoms, and disabilities due

to mental illness . . . .” In October 2003, Ms. Holcomb’s primary care

physician’s office reported that although Ms. Holcomb could occasionally lift

between one and ten pounds, bend, kneel, and climb stairs, she could not perform

even one hour of sedentary work during an eight-hour workday.

From late 2003 through early 2005, Unum regularly requested updated

medical records from Ms. Holcomb and her treating physicians. These records

generally indicated that she was suffering from fatigue, diffuse pain, intermittent

headaches and rashes, joint swelling, vision problems, and memory difficulties. 

In February 2005, Unum notified Ms. Holcomb that:

[a]s of May 22, 2005 you will have reached 24 months of benefit

payments. As we discussed, so that we can ensure that we are making

the most appropriate decision with regards to the adjudication of your

claim and taking into consideration your current medical condition, we

will be reviewing your file to determine if you qualify for continued

benefits.

After May 22, 2005, Unum continued to pay benefits to Ms. Holcomb under a
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reservation of rights. In June 2005, Unum on-site physician Tony Smith (the

“OSP”) conducted a clinical review of medical records Unum had obtained from

several of Ms. Holcomb’s physicians. He found no significant change in Ms.

Holcomb’s reported symptoms from 2003 to 2005. He also found no significant

change in Ms. Holcomb’s exams, laboratory tests, or imaging studies. Based on

the data in Ms. Holcomb’s medical file, he concluded that it was reasonable to

assume she would have difficulty with prolonged walking, heavy lifting, frequent

bending, and heavy pushing and pulling. He also concluded that her file did not

“document a complete lack of work capacity.”

Following the OSP’s clinical review, Unum requested additional medical

information from Ms. Holcomb’s primary care physician, Dr. Craig Carson. Dr.

Carson’s office responded with a report indicating that Ms. Holcomb had been

diagnosed with lupus, memory loss, headaches, fibromyalgia, depression,

gastroesophageal reflux disease, Sjorgren’s syndrome, and fatigue. The report

stated that her principal complaint was fatigue and that her cognitive deficits were

not supported by objective evidence. In addition, the report advised that in the

absence of objective data concerning Ms. Holcomb’s functional abilities, it was

necessary “to rely on the patient’s history of present illness and take [her] word

for it when [she] report[s] that [she is] unable to walk, talk, sit, lift, etc. for any

period of time.” Although the report counseled against Ms. Holcomb returning to

work, its conclusions about her cognitive deficits and functional disability were
2

Because a psychiatrist conducted the report, it is unclear whether the DDT

was limited to an evaluation of Ms. Holcomb’s mental health. 

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generally based on self-reported symptoms.

In July 2005, Dr. Robert Anfield, another Unum physician, evaluated both

the OSP’s review of Ms. Holcomb’s medical records and several assessments by

Dr. Carson and his staff. Dr. Anfield agreed with the OSP’s analysis, concluding

that Ms. Holcomb was capable of engaging in “work activities.” In addition, Dr.

Anfield stated that “Ms. Holcomb’s self-reported incapacitating symptoms are

primarily the feature of [fibromyalgia] . . . [and] the label ‘fibromyalgia’ provides

no pathophysiologic foundation upon which to base a set of restrictions and

limitations.”

 Also in July 2005, Unum requested Ms. Holcomb’s medical records from

the Social Security Administration, which had conducted a Disability

Determination and Transmittal (“DDT”). The DDT identified Ms. Holcomb’s

primary diagnosis as “affective mood disorders.” It stated that no secondary

diagnosis could be established due to insufficient medical evidence.2

 The DDT

was accompanied by a psychiatrist’s evaluation and conclusion that “[m]edical

evidence shows [Ms. Holcomb] can do simple tasks, but she cannot do complex

work. She cannot cope with the stress of a work environment or a work

schedule.”

In August 2005, Dr. Carson sent Unum a letter to “clarify a few matters.” 
3

Dr. Carson described episcleritis as “a very serious eye condition which

can lead to blindness.”

-7-

Dr. Carson wrote, “[y]our antagonistic letters and disclaimers suggest a

remarkable lack of understanding for systemic lupus erythematosus and its ability

to cause functional limitations in patients who are so unfortunately affected.” He

wrote that Unum was “try[ing] to make a case that [Ms. Holcomb’s] problems are

all subjective and thus mental.” He summarized “the abnormal [laboratory]

studies that have been a consistent feature of [Ms. Holcomb’s] disease,” and he

urged:

What I wish you to understand is that the mental aspect of her illness

is only a minor aspect. Far greater are the problems of widespread

systemic inflammation in the connective tissues. This is most marked

by a pronounced arthritis and [her] episcleritis,3

 not by her mental

problems. . . . My recommendations for medical retirement based on

total and permanent disability [are] based solely on functional

limitations apart from any mental disorder. She can no longer engage

in any work related activities such as sitting, standing, walking, lifting,

carrying or handling objects using her hands.

In September 2005, the OSP reviewed Dr. Carson’s letter, reports from Ms.

Holcomb’s ophthalmologist, and 233 pages of medical records Ms. Holcomb had

submitted to Unum during the previous three months. The OSP reported that

“[b]ased on a review of the additional medical information and with a reasonable

degree of medical certainty, the additional medical records . . . do not change

[my] conclusions . . . from a general medical standpoint.” Unum’s Vocational

Rehabilitation Consultant (“VRC”) then conducted an occupational analysis to
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determine whether Ms. Holcomb’s stated restrictions and limitations would

preclude her from her occupation. The VRC reviewed the OSP’s conclusions, Dr.

Anfield’s review of those conclusions, and vocational descriptions for jobs

similar to Ms. Holcomb’s. The VRC concluded: 

[I]t is reasonable that [Ms. Holcomb’s] occupation could be performed

within the physical restrictions and limitations supported for [her]. The

occupation does not require prolonged walking, heavy lifting, frequent

bending and heavy push/pull. Also, based on the high level of

responsibility the occupation would allow for control over positioning

to allow for frequent change of position to perform the material and

substantial duties of the occupation.

The VRC also determined that Ms. Holcomb would be able to perform several

other occupations within the financial industry that would pay at least the

equivalent of her disability benefit.

By letter dated September 27, 2005, Unum notified Ms. Holcomb that it

would no longer pay disability benefits to her. The letter explained that Unum

had concluded she “would be able to perform the material and substantial duties

of [her] regular occupation” and could perform at least five other “gainful

occupations,” based on her restrictions, limitations, education, training, and

experience. Unum also stated that it would not require her to repay the benefits it

had disbursed to her after May 22, 2005, even though pursuant to the Policy she

was not entitled to long-term benefits beyond that date. 

On November 17, 2005, Ms. Holcomb’s husband sent Unum a letter

appealing its termination of her benefits and asking Unum to review her file. A
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Unum nurse reviewed the file and determined that Dr. Carson’s restrictions and

limitations for Ms. Holcomb were not “reasonable,” were not “supported by

observable physical examination or diagnostic testing,” and “appear[ed] to be

excessive and overly restrictive based on the exam findings.” In December 2005,

Unum requested that Dr. George Morton, an independent, board-certified

rheumatologist, review Ms. Holcomb’s medical file. The file contained an

extensive collection of physicians’ reports, laboratory results, and imaging

studies. It also included records from each of Ms. Holcomb’s visits with Dr.

Carson between April 2002 and April 2005, as well as Dr. Carson’s August 2005

letter to Unum. In January 2006, Dr. Morton concluded that despite Ms.

Holcomb’s physical restrictions—which he determined would limit her ability to

use a keyboard and to sit or stand in one position for an extended period—he

“would anticipate that in her occupation one could work within these limitations.” 

In addition, Dr. Morton wrote that

[m]ost of the claimant’s reduction of capacity is from self-reported

symptoms. The objective impairment documented in the chart is the

swelling and limitation of . . . joints of her hands. Her fatigue and the

degree of pain are subjective self-reported complaints. The degree of

functional impairment from her cognitive and emotional impairments

secondary to her depression should be deferred to an assessment by a

psychiatrist or a trained occupational psychologist.

Unum then requested that Ms. Holcomb undergo an independent

neuropsychological examination from Dr. James Scott at the University of

Oklahoma Health Sciences Center. Dr. Scott found that her response pattern on
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self-reported measures suggested “a considerable psychological overlay to her

reported physical condition.” He determined that Ms. Holcomb “demonstrated

average global intellectual functioning,” and that her “[p]erformance on measures

of attention/concentration, processing speed, language, immediate verbal and

nonverbal memory, and abstraction/problem solving ability all fell within the

expected functional range.” Although Dr. Scott determined that Ms. Holcomb

was experiencing a mild and intermittent memory problem, he concluded that

“[d]ue to her intact general intellectual and problem solving ability, the utilization

of compensatory strategies (e.g., memory notebook) would likely ameliorate this

situation.”

On June 8, 2006, Unum notified Ms. Holcomb that after reviewing her

appeal it had determined that it had appropriately denied her claim. She then

filed suit in federal district court, seeking a declaratory judgment that she was

disabled and entitled to long-term disability benefits under the Policy. She

alleged that by denying her claim Unum had violated ERISA, 29 U.S.C. §

1132(a)(1) and (3). After examining the administrative record, the district court

issued an order in Unum’s favor. Ten days later, Ms. Holcomb filed a motion to

alter or amend the district court’s judgment under Fed. R. Civ. P. 59(e). Ms.

Holcomb argued that the United States Supreme Court’s decision in Metropolitan

Life Insurance Co. v. Glenn, – U.S. –, 128 S. Ct. 2343 (2008), was an intervening
4

The Supreme Court decided Glenn two days after the district court’s initial

ruling.

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change in controlling law that warranted reconsideration.4 The district court

reexamined its order in light of Glenn and denied Ms. Holcomb’s motion.

On appeal, Ms. Holcomb argues that Unum abused its discretion by

terminating her benefits. Ms. Holcomb also argues that the district court abused

its discretion by denying her Rule 59(e) motion to alter or amend its judgment. 

 II. DISCUSSION

A. Standard of Review

We review a plan administrator’s decision to deny benefits to a claimant, as

opposed to reviewing the district court’s ruling. See Allison v. Unum Life Ins. Co.

of Am., 381 F.3d 1015, 1021 (10th Cir. 2004). When a plan “gives the

administrator or fiduciary discretionary authority to determine eligibility for

benefits or to construe the terms of the plan,” we review the decision for abuse of

discretion. Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1002–03 (10th

Cir. 2004) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989)). Our review is “limited to the administrative record—the materials

compiled by the administrator in the course of making his decision.” Fought, 379

F.3d at 1003. 

The parties do not dispute that the Policy gives Unum discretionary

authority to determine eligibility for benefits and to construe the terms of the
5

Ms. Holcomb’s argument that under Fought Unum bears the burden of

proving “facts supporting an exclusion of coverage” is therefore unavailing. See

Fought, 379 F.3d at 1007.

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plan. Nor do they dispute that Unum operates under an inherent conflict of

interest because it is in a position to “favor, consciously or unconsciously, its

interests over the interests of the plan beneficiaries.” See id. at 1003 (quotations

omitted). See also Pitman v. Blue Cross & Blue Shield of Okla., 217 F.3d, 1291,

1296 n.4 (10th Cir. 2000) (explaining that when an insurer is also the

administrator of a plan it operates under an inherent conflict of interest). We

therefore weigh the conflict of interest “as a ‘facto[r] in determining whether

there is an abuse of discretion.’” Fought, 379 at 1003 (quoting Firestone, 489

U.S. at 115); see Glenn, 128 S. Ct. at 2350.

In prior cases where a plan administrator has operated under a similar

conflict, we have shifted the burden to the administrator “to establish by

substantial evidence that the denial of benefits was not arbitrary and capricious.” 

Fought, 379 F.3d at 1005; see Flinders v. Workforce Stabiliz’n Plan of Philips

Petro. Co., 491 F.3d 1180, 1190 (10th Cir. 2007). Glenn expressly rejects and

therefore abrogates this approach. See Glenn, 128 S. Ct. at 2351 (holding it is not

“necessary or desirable for courts to create special burden-of-proof rules, or other

special procedural or evidentiary rules focused narrowly upon the evaluator/payor

conflict”).5

 Glenn embraces instead a “combination-of-factors method of review”

that allows judges to “tak[e] account of several different, often case-specific,
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factors, reaching a result by weighing all together.” Id. A conflict “should prove

more important (perhaps of great importance) where circumstances suggest a

higher likelihood that it affected the benefits decision . . . [and] should prove less

important (perhaps to the vanishing point) where the administrator has taken

active steps to reduce potential bias and to promote accuracy . . . .” Id. 

B. Unum’s Denial of Benefits Under the Combination of Factors Standard

Applying a “combination of factors” analysis, we conclude that Unum did

not abuse its discretion in denying benefits to Ms. Holcomb. Unum took steps to

reduce its inherent bias by hiring two independent physicians—one who reviewed

Ms. Holcomb’s file (Dr. Morton), and one who examined her (Dr. Scott). See id.

at 2351 (holding that increased deference is afforded a plan administrator that

takes steps to reduce inherent bias). Unum did not rely solely on the evaluations

and medical opinions of its own on-site physicians and nurses. We therefore give

the conflict-of-interest factor limited weight in evaluating whether Unum abused

its discretion. See id. (stating that the conflict-of-interest factor “should prove

less important (perhaps to the vanishing point) where the administrator has taken

active steps to reduce potential bias and to promote accuracy”). 

In addition, the administrative record demonstrates that Unum diligently

endeavored to discover the nature of Ms. Holcomb’s ailments. Beginning in May

2003, it routinely requested Ms. Holcomb’s updated medical records and it

conducted its own clinical reviews of these records. By May 2005, Unum had
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received a large volume of reports, letters, imaging studies, and exams that were

not entirely consistent. Unum then solicited expert evaluations from independent

medical and psychological examiners, and it performed both vocational

assessments and occupational analyses. Meanwhile, Unum paid benefits to Ms.

Holcomb, even though the twenty-four month period for disabilities “due to

mental illness” or “based primarily on self-reported symptoms” had expired.

Dr. Carson and his staff believed that Ms. Holcomb was unable to work,

even in a sedentary capacity, and that her disability was not caused by mental

illness. When Unum’s nurse determined that Dr. Carson’s recommended

restrictions and limitations “appear[ed] to be excessive and overly restrictive

based on the exam findings,” Unum did not rely on the nurse’s determination

alone but requested an independent evaluation from Dr. Morton, a board-certified

rheumatologist. Dr. Morton evaluated a large volume of Ms. Holcomb’s medical

data, including records from her visits with Dr. Carson and his letter regarding

Unum’s investigation. Dr. Morton concluded that the majority of Ms. Holcomb’s

medical problems derived from “self-reported symptoms.” He also recommended

sending Ms. Holcomb to a psychiatrist or an occupational psychologist. 

Unum then referred Ms. Holcomb to Dr. Scott, an independent

neuropsychologist. He determined that Ms. Holcomb “demonstrated average

global intellectual functioning” and that her performance on a variety of cognitive

measures “fell within the expected functional range.” Although he found that she
6

Ms. Holcomb argues that “Unum did not evaluate the other jobs it claims

[she] can do with reference to” her keyboarding limitations, and that Unum’s

alleged disregard for evidence of her keyboarding disability constitutes an abuse

of discretion. Unum did, however, conduct an occupational analysis on

September 24, 2005, in which the VRC analyzed the “handling, fingering, and

keyboarding” abilities required for Ms. Holcomb’s occupation. The VRC

(continued...)

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had a problem with delayed memory, he determined that “[d]ue to her intact

general intellectual and problem solving ability, the utilization of compensatory

strategies (e.g., memory notebook) would likely ameliorate this situation.” 

Regarding that diagnosis, Ms. Holcomb argues that the Policy does not

include a qualification that she be able to work in any gainful occupation “with

accommodations,” but that she be able to work in any gainful occupation for

which she is qualified. She asserts that Unum has attempted to rewrite the Policy

for the purpose of denying her benefits. Because Ms. Holcomb’s argument

overstates the significance of one sentence in a large administrative record, it is

unavailing. Although Dr. Scott concluded that Ms. Holcomb was experiencing

memory difficulties, he described the difficulties as both “mild” and

“intermittently manifested.” He generally characterized her cognitive and global

intellectual functioning as “average” and “within the expected functional range.” 

These characterizations are consistent with Dr. Morton’s conclusion that “in her

occupation, one could work within these limitations.” Moreover, each vocational

and occupational assessment concluded that she was fit for multiple gainful

occupations that reasonably matched her education, training, and experience.6

 We
6

(...continued)

determined that Ms. Holcomb could perform this occupation despite her physical

restrictions and limitations. 

In addition, Dr. Morton concluded that despite Ms. Holcomb’s keyboarding

limitations, “I would anticipate that in her occupation one could work around

these limitations.” We therefore conclude that Unum did not disregard evidence

of Ms. Holcomb’s keyboarding disability and the way that disability would affect

her ability to work in “any gainful occupation” for which she was reasonably

suited.

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therefore conclude that Unum did not rewrite the Policy in deciding that Ms.

Holcomb was fit for these occupations.

Finally, we note that several of the factors that led the Supreme Court to

hold against the plan administrator in Glenn are not present in this case. First, the

insurance company in Glenn “encouraged [the insured] to argue to the Social

Security Administration that she could do no work,” and then ignored its

conclusion. Glenn, 128 S. Ct. at 2352. There is no evidence that Unum

encouraged Ms. Holcomb to argue to the Social Security Administration that she

could not work. The Court in Glenn also noted the insurance company’s failure

to provide independent experts with all of the necessary documentation. Id. In

this case, Unum furnished the independent doctors with all of the necessary

information, including information from Ms. Holcomb’s personal physician that

challenged Unum’s conclusions.

For the foregoing reasons, we conclude that Unum’s decision denying

benefits to Ms. Holcomb was not an abuse of its discretion.

C. Ms. Holcomb’s Motion to Alter or Amend the Judgment
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We review a district court’s denial of a motion to alter or amend its

judgment for abuse of discretion. Adams v. Reliance Standard Life Ins. Co., 225

F.3d 1179, 1186 (10th Cir. 2000). Having determined, under Glenn, that Unum

acted within its discretion in denying benefits to Ms. Holcomb, we also conclude

that the district court did not abuse its discretion by declining to alter or amend its

judgment in light of Glenn. 

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s order.