Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-30381

DARLENE L MCDONALD

Plaintiff - Appellant

v.

HARTFORD LIFE GROUP INSURANCE COMPANY

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

No. 2:06-CV-3015

Before KING, GARZA, and HAYNES, Circuit Judges.

PER CURIAM:*

Darlene McDonald, an office manager, suffers from degenerative disc

disease in her spine. Following a surgical procedure intended to alleviate her

back pain, she ceased working and applied for long-term disability benefits

under her employer’s ERISA plan with Hartford Life Group Insurance Company.

After reviewing McDonald’s medical records and interviewing her treating

physicians, Hartford denied benefits, finding that she was capable of performing

sedentary work and therefore did not meet the plan’s definition of “disabled.”

United States Court of Appeals

Fifth Circuit

F I L E D

January 19, 2010

Charles R. Fulbruge III

Clerk

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McDonald brought two administrative appeals, both of which Hartford denied.

McDonald brought suit, alleging Hartford abused its discretion by denying her

claim. The district court granted summary judgment for Hartford, and

McDonald appeals. We affirm. 

I. BACKGROUND

A. McDonald’s Job Requirements & Long Term Disability Policy

Darlene McDonald (McDonald) worked as an office manager, business

manager, and property manager at the law firm of Bruno & Bruno, LLC (B&B)

starting in February 2002. Her job required frequent computer use, prolonged

sitting, standing, and walking. She also had to frequently bend, stoop, and reach

while filing employee information. Any lifting required was normally under ten

pounds, but occasionally it might exceed this amount. 

B&B offered long term disability insurance coverage for its employees

through CNA Group Life Assurance Company (now known as Hartford Life

Group Insurance Company, or Hartford). Under B&B’s policy, an individual

qualifies for long term disability benefits if the individual is sick or injured

during a 90-day elimination period (beginning on the date of the onset of

disability) and for another 24 months following the end of the elimination period.

The policy refers to this initial time period (the 90-day elimination period plus

24 months) as the “Occupation Qualifier” period, but it is also known in the

insurance industry as the “Own Occupation” period. To receive benefits under

the policy during the Own Occupation period, the individual must continuously

meet the definition of “disabled” for the entire period. The policy defines

“disabled” as “[i]njury or [s]ickness caus[ing] physical or mental impairment to

such a degree of severity that [the individual is] 1) continuously unable to

perform the [m]aterial and [s]ubstantial [d]uties of [her] [r]egular [o]ccupation;

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 The policy defines “gainfully employed” as “the performance of any occupation for 1

wages, renumeration or profit, for which you are qualified by education, training or experience

on a full-time or part-time basis, and which provides you with substantially the same earning

capacity as your former earning capacity prior to the start of your disability.” 

 Degenerative disc disease is also known as spondylosis or osteoarthritis. Stedman’s 2

Medical Dictionary defines spondylosis as “Ankylosis of the vertebra; often applied

nonspecifically to any lesion of the spine of a degenerative nature.” STEDMAN’S MEDICAL

DICTIONARY 1813 (28th ed. 2006). Stedman’s describes osteoarthritis as: “Arthritis

characterized by erosion of articular cartilage, either primary or secondary to trauma or other

conditions, which becomes soft, frayed, or thinned with eburnation of subchondral bone and

outgrowths of marginal osteophytes; pain and loss of function result; mainly affects weightbearing joints, is more common in old people and animals.” Id. at 1388. “Ankylosis” is defined

as “[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony

union across the joint; fusion.” Id. at 95. 

3

2) and not [g]ainfully [e]mployed.” The policy is governed by the Employee 1

Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq., and

gives Hartford discretionary authority over the interpretation of the policy and

eligibility decisions. 

B. McDonald’s Injury and Treatment

In July 2003, McDonald began experiencing headaches and back pain. She

suffered a herniated disc in a car accident in June 2004, which exacerbated her

pre-existing symptoms. After the accident, she began seeing Dr. Evalina Burger,

an orthopedic surgeon. In July 2004, Dr. Burger determined that McDonald

suffered from degenerative disc disease in both the lumbar and cervical regions 2

of her spine, but she did not think that surgery would help at the time. After a

November 2004 appointment, Dr. Burger recommended that McDonald avoid

“prolonged sitting in front of [a] computer” and limit any lifting. Eventually, Dr.

Burger recommended cervical fusion surgery between vertebrae 4–5, 5–6, and

6–7. 

Dr. Burger referred McDonald to Dr. John Steck, a neurosurgeon, who

concurred in recommending surgery after reviewing McDonald’s MRIs. Dr.

Steck performed surgery on McDonald’s lumbar spine on December 28, 2004;

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 In this letter, Dr. Hubbell seems to advocate strongly for McDonald to receive cervical 3

facet radiofrequency treatment, and he complains that McDonald’s health care provider

(Coventry Health Care) failed to allow additional testing that would objectively demonstrate

her need for this type of treatment. However, this advocacy seems misplaced, as

Hartford—the disability benefits provider—is unrelated to Coventry—the health insurance

provider. 

4

McDonald continued working full-time at B&B until December 27, 2004. At the

time of the surgery, it was unclear how successful the procedure would be,

particularly because the degenerative disc disease affected more than just the

lumbar spine. Following the surgery, McDonald reported improvement in her

pain but MRIs continued to show evidence of degenerative disc disease. In

February 2005, six weeks after the surgery, Dr. Steck noted that McDonald was

doing very well and gave her permission to return to work on a part-time basis

(four hours a day, three days a week). Dr. Steck’s final chart note for McDonald

was dated July 6, 2005, and shows that her MRI reflects “cervical and lumbar

spondylosis with arthritic and degenerative changes in the cervicothoracic

spine.” McDonald attempted to return to work for a period of time, but soon

found it too painful. McDonald applied for long-term disability benefits in June

2005 and her final day of work at B&B was October 12, 2005. 

Beginning in October 2004, McDonald started treatment with Dr. Paul

Hubbell, a pain management specialist, who determined in a February 13, 2006,

letter to Hartford that McDonald “may be able to perform part-time work” but

could not return to work on a full-time basis as a result of her “significant

arthritic complaints in the cervical spine which cause reflex [sic] significant

muscle spasms, headaches, and limitation of position.” Dr. Hubbell also noted

in the February 2006 letter that McDonald’s subjective complaints of pain were

supported by objective findings of facet pathology and disc pathology, but he also

recommended that she receive additional pain therapy, which he predicted

might “significantly improve her physical activity capabilities.” McDonald 3

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reported that her back pain improved some after her surgery, but it has since

fluctuated; she still complains of headaches and muscle spasms. Because of her

pain, she requires help with her personal grooming and with maintaining her

household. 

C. Administrative Claims Process

In June 2005, McDonald filed a claim for disability benefits with Hartford.

According to Hartford, the 90-day elimination period began December 28,

2004—the day McDonald underwent surgery—and ended March 28, 2005. The

Own Occupation period lasted from December 28, 2004, to March 28, 2007.

Therefore, to qualify for disability benefits, McDonald needed to show that she

met the definition of “disabled” for the duration of the Own Occupation period.

McDonald submitted documentation from Dr. Steck stating that she should not

bend, stoop, climb, or lift more than ten pounds. Hartford gathered other

medical records, including the claim notes, Dr. Steck’s L[ong] T[erm] D[isability]

Physician’s Statement and Functional Assessment Tool, clinical notes from Drs.

Steck and Hubbell, the discharge summary after the surgery, the operative

report, and four MRIs of her lumbar and cervical spine. The Functional

Assessment Tool indicates that Dr. Steck did not think that McDonald was

capable of performing full time work involving “sitting, standing, and walking

for varying periods of time, typing on a computer, some bending, stooping, and

reaching, regularly lifting items under [ten pounds] and occasionally lifting

items over [ten pounds]” as of July 14, 2005. Hartford interviewed McDonald

and determined that she was able to get help at work to avoid bending, stooping,

and lifting and that B&B was cooperative, allowing her to get help with tasks.

After compiling McDonald’s medical records, Hartford hired Dr. Bruce

LeForce, a physician with Reed Review Services, to review McDonald’s file. Dr.

LeForce determined that McDonald was:

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 According to Hartford’s January 25, 2006, denial letter, McDonald submitted: 4

Letter to Attorneys from Dr. Evalina Burger dated July 12, 2004; A physical

examination form dated 7/12/04 which was not complete; A Physical Therapy

referral dated 7/12/04; A Spine Assessment Form undated; MRI of the Cervical

Spine dated 9/10/04; Clinic note[s] dated 10/4/04 through 11/1/04 from Dr.

Evalina Burger; Prescription for medication [including Vicodin] dates 11/1/04;

LTD Physician’s Statement; MRI of the Cervical Spine dated 10/19/05;

Evaluation by Dr. Paul J. Hubbell dated 10/26/04; Office notes from Dr. Paul J.

Hubbell dated 10/26/04 through 8/16/05; Consent forms and clinic record from

[surgery] dated 12/13/04. 

6

capable of sitting up to eight hours per day given an opportunity for

frequent breaks and changes in position. She can stand and walk

occasionally. She cannot lift or carry more than ten pounds and this

can be done only occasionally. She can exert a negligible amount of

force continuously. She cannot climb, bend, or stoop. These

limitations should be considered permanent. . . . She can work fulltime given the other restrictions and limitations. . . . [T]he objective

findings indicate that she is capable of full-time work provided that

she is limited to a sedentary type job with no climbing, bending, or

stooping. 

Dr. LeForce concluded that McDonald’s MRI showed “only some degenerative

changes without spinal stenosis or evidence of nerve root impingement.” In a

letter dated September 30, 2005, Hartford determined that the information

contained in McDonald’s file “fail[ed] to support an inability to perform the

material and substantial duties of [her] regular occupation” and therefore she

was ineligible for benefits. 

McDonald appealed the denial and presented additional information for

Hartford’s review. Hartford hired Dr. Barry Turner, an orthopedic surgeon 4

employed by University Disability Consortium (UDC), to review the original file

and the new documents submitted by McDonald. According to Hartford’s

January 26, 2006, letter, Dr. Turner did not review Dr. LeForce’s conclusions,

but independently reviewed the file and came to his own conclusions. Dr. Turner

attempted to contact McDonald’s treating physicians. He was unable to speak

directly with Dr. Steck, but he spoke with a person in Dr. Steck’s office who

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 The record does not explicitly show whether Dr. Pick reviewed Dr. LeForce’s or Dr. 5

Turner’s evaluations. He did not specifically list the other doctors’ reports in his review of

McDonald’s file, and Hartford did not discuss this issue in its final denial letter. However,

Hartford explicitly mentioned in the denial letter from the first appeal that Dr. Turner did not

review Dr. LeForce’s conclusions; this discrepancy raises the question whether Dr. Pick had

access to the other reviewing physicians’ conclusions. 

7

indicated that McDonald’s last visit was in October 2005, at which time Dr.

Steck’s notes reflected that sedentary-level work would be acceptable, without

any limitations as to time. 

Dr. Turner reported that the records he reviewed supported the conclusion

that McDonald suffered “generalized cervical and lumbar spondylosis with

arthritic changes consistent with her age,” and had undergone a “satisfactory

cervical and lumbar diskectomy [the surgical procedure] with fusions and no

complications or resultant radiculopathy, myelopathy, or nerve root compression

noted.” Dr. Turner concluded that McDonald’s condition was “secondary to the

normal aging process” and found “no evidence of any significant impairment.”

He opined that “there is no reason that oral analgesics and anti-inflammatory

therapy would not be effective” and “provide[d] no restrictions or limitations that

would preclude full-time work activity.” In a letter dated January 26, 2006,

Hartford informed McDonald that, following the appeal, it appeared that she “at

a minimum retain[ed] the functional capacity for sedentary-type work activity”

and therefore did not meet the policy’s definition of “disabled.” 

McDonald again requested that Hartford reconsider its decision, and she

submitted additional documentation, including letters from McDonald regarding

her pain; a job description for her position at B&B; Dr. Hubbell’s February 2006

letter regarding her subjective pain; and a MRI of her cervical spine from

October 2005, which she had previously submitted. Hartford hired another UDC

orthopedic surgeon, Dr. Robert Pick, to conduct the second review. Dr. Pick

reviewed all of the previous evidence submitted by McDonald. Dr. Pick spoke 5

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8

with Dr. Burger, who reported only that her last visit with McDonald was in

November 2004 and she did not have access to McDonald’s records, as they had

been affected by Hurricane Katrina. Dr. Pick also spoke with Dr. Hubbell, who

stated that “the only objective finding is the MRI,” and when asked if McDonald

could engage in sedentary work, replied: “Instead of guessing, get a Functional

Capacity Evaluation.” Dr. Pick called Dr. Steck and spoke with him after hours

when he did not have access to McDonald’s records; Dr. Steck reported from

general memory that McDonald could engage in sedentary work for eight hours

a day. 

From his review of the documents and his conversations with the treating

physicians, Dr. Pick concluded that “there is no documentation or substantation

[sic] that Ms. McDonald cannot engage in at least the sedentary–light work

category on full-time basis.” He observed that the file indicated McDonald had

“degenerative arthritic changes of the cervical and lumbar spine”; her surgery

had been successful; and she had “satisfactory postoperative progress and

recovery with improvement in [her] preoperative symptoms.” He noted that “no

specific intervention has been recommended other than conservative care” and

“the case file does not document any substantive objective

orthopedic/musculoskeletal findings that would prevent Ms. McDonald from

engaging in full-time work activities in at least the sedentary–light work

category . . . .” He concluded that McDonald’s file did not “establish a complete

impairment from gainful employment.” Based on Dr. Pick’s review and

conclusions, Hartford sent McDonald a letter on April 26, 2006, declining to

change the prior decision to deny benefits. The letter stated that it was “final

and binding” and that McDonald had “exhausted all [a]dministrative remedies.”

D. Litigation

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 McDonald later voluntarily dismissed B&B. 

6

9

McDonald filed suit against B&B and Hartford on June 12, 2006, under 6

ERISA. McDonald alleged that Hartford failed to pay benefits under the

insurance policy as required by 29 U.S.C. § 1132(a)(1)(B) and that Hartford

breached its fiduciary duties under 29 U.S.C. § 1104(a). McDonald and Hartford

both filed motions for summary judgment. The district court determined that

the administrative record was incomplete because Hartford had relied upon Dr.

Pick’s discussion with Dr. Steck after hours, when Dr. Steck was at the health

club and did not have access to McDonald’s records. On March 28, 2008, the

district court remanded to Hartford for further clarification of Dr. Steck’s

position, with instructions that the remand was “for the limited purpose of

interviewing and/or deposing Dr. Steck to clarify his position as regards

[McDonald’s] limitations.” 

Following another interview with Dr. Steck, Hartford noted that his

opinion was that “McDonald’s ongoing complaints of pain are subjective in

nature” and he could not determine at this stage whether she could work. In a

November 21, 2008, letter to McDonald’s attorney, Hartford determined that any

new information from the interview of Dr. Steck was “not compelling based on

the totality of the facts presented” and declined to change its prior decision.

McDonald re-urged her motion for summary judgment, as did Hartford. 

On October 27, 2007, before the district court issued its remand order,

McDonald received a Declaration of Disability from the Social Security

Administration (SSA award). McDonald did not inform the district court of the

award at the time, but she did forward the award, with the accompanying letter

of reasons, to Hartford shortly after the case was remanded and requested that

Hartford consider the award. In its November 21, 2008, letter, Hartford did not

mention the award and the record does not show if Hartford included the award

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in its investigation of McDonald’s claim. The first time that McDonald informed

the district court of the SSA award was in her re-urged motion for summary

judgment. 

The district court granted summary judgment for Hartford. In its final

order on April 29, 2009, the district court declined to give controlling weight to

the opinions of McDonald’s treating physicians and found that “Hartford

conducted a thorough and reasonable analysis of McDonald’s disability, basing

its initial decision and two appeal decisions on the opinions of three separate,

independent physicians.” The district court noted that McDonald admits her job

is “primarily sedentary” and that she “gets help filing to avoid bending and

stooping.” Furthermore, the district court pointed out that “both her treating

physicians and Hartford’s physicians have agreed she should be able to perform

[sedentary work].” The district court rejected McDonald’s argument that

Hartford was bound to consider her SSA award—as Hartford had already

reached its final decision more than one year prior to the award, it could not

have considered the additional information, particularly in light of the district

court’s specific instructions limiting the scope of the inquiry on remand.

McDonald timely appealed. 

II. DISCUSSION

McDonald raises two main points on appeal. She argues that the district

court improperly refused to allow her to supplement the administrative record

with her SSA award, and she contends that the district court erred in finding

that Hartford’s decision to deny benefits was supported by substantial evidence.

A. Supplementation of Administrative Record

McDonald argues that the district court abused its discretion by declining

to permit McDonald to enter her SSA award into the administrative record. The

SSA award was issued October 23, 2007, more than one year after Hartford

issued its final decision in April 2006. McDonald argues that the district court’s

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No. 09-30381

Metropolitan Life Insurance Co. v. Glenn, — U.S. —, 128 S.Ct. 2343, 2350 (2008), 7

abrogated Vega to the extent that Vega adopted a “sliding-scale” methodology of weighing

conflicts of interest. See Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247 n.3 (5th Cir.

2009). However, we have maintained that “much of our ‘sliding scale’ precedent is compatible

with the Supreme Court’s newly clarified ‘factor’ methodology, and Glenn does not supercede

that precedent to the extent it reflects the use of a conflict as a factor that would alter the

relative weight of other factors.” Id. Therefore, Vega continues to be good law for propositions

unrelated to the “sliding scale” method of reviewing alleged conflicts of interest. 

11

remand for further investigation re-opened the administrative process, making

it proper to supplement the administrative record with the SSA award. Hartford

argues that, given the limited purpose of the remand, there was no obligation for

Hartford to consider new evidence outside of the district court’s instructions and

the district court acted within its discretion in declining to consider the SSA

award. The determination of whether evidence should be included in the

administrative record is an evidentiary decision, and we review for abuse of

discretion. Corry v. Liberty Life Assurance Co. of Boston, 499 F.3d 389, 398 n.12

(5th Cir. 2007). 

When conducting abuse of discretion review of a denial of benefits based

on an administrative record, we have generally required that the scope of review

be limited to facts known to the plan administrator at the time of the benefits

decision. S. Farm Bureau Life Ins. Co. v. Moore, 993 F.2d 98, 102 (5th Cir.

1993). However, we have recognized certain limited exceptions to this rule. See

Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 299 (5th Cir. 1999) (en banc)

(“To date, th[e] exceptions have been related to either interpreting the plan or

explaining medical terms and procedures relating to the claim.”). These 7

exceptions have been judged on a case-by-case basis, and we have declined to

adopt any per se rules in this area. Cf. Duhon v. Texaco, Inc., 15 F.3d 1302, 1309

(5th Cir. 1994). 

When compiling the administrative record, the plan administrator must

identify what evidence constitutes the administrative record, and the claimant

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must have “a reasonable opportunity to contest whether that record is complete.”

Estate of Bratton v. Nat’l Union Fire Ins. Co. of Pittsburgh, 215 F.3d 516, 521

(5th Cir. 2000). While the administrative record is generally limited to “relevant

information made available to the administrator prior to the complainant’s filing

of a lawsuit and in a manner that gives the administrator a fair opportunity to

consider it,” we have attempted to avoid abuse or mistake by allowing “the

claimant’s lawyer [to] add additional evidence to the administrative record

simply by submitting it to the administrator in a manner that gives the

administrator a fair opportunity to consider it.” Id. at 521 & n.5. We have been

clear, however, that “the district court is precluded from receiving evidence to

resolve disputed material facts—i.e., a fact the administrator relied on to resolve

the merits of the claim itself.” Vega, 188 F.3d at 299. Had the district court not

remanded to Hartford for further investigation of Dr. Steck’s opinion, the

question of whether the SSA award should be included in the administrative

record would be clear: the administrative record closed when McDonald filed suit

in June 2006. Cf. Moore, 993 F.2d at 102. The SSA award does not fall into the

two acknowledged exceptions: evidence interpreting the plan or explaining

medical terms and procedures. 

The timing of the remand order complicates the analysis somewhat, for

Estate of Bratton suggests that McDonald had the opportunity to offer additional

information to Hartford, so long as the submission of new information was

conducted “in a manner that gives the administrator a fair opportunity to

consider it.” Estate of Bratton, 215 F.3d at 521 n.5. Assuming without deciding

that McDonald could have supplemented the record on remand, she missed her

opportunity. The SSA award was issued on October 23, 2007, five months before

the district court remanded the case to Hartford on March 28, 2008. Yet

McDonald did not bring the SSA award to the district court’s attention until

after the conclusion of the remand period, despite at least one opportunity to do

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so. For example, Hartford moved for reconsideration of the remand order, which

McDonald opposed in writing—without mention of the SSA award. McDonald

was aware of the district court’s specific instructions on remand but did not ask

the district court to expand the scope of the remand to include consideration of

the award. The first mention of the SSA award in McDonald’s filings is in her

January 23, 2009, reurged motion for summary judgment. In light of the district

court’s very specific instructions limiting the scope of the remand and

McDonald’s failure to submit the award for consideration at an appropriate time,

the district court did not abuse its discretion in refusing to consider the SSA

award and in approving Hartford’s decision not to consider the award.

B. Substantial Evidence

We typically follow a two-step process to determine if an ERISA plan

administrator has abused its discretion, asking first if the plan administrator’s

determination was legally correct; if it is not, we proceed to the second question

of whether the decision was an abuse of discretion. Holland v. Int’l Paper Co.

Ret. Plan, 576 F.3d 240, 246 n.2 (5th Cir. 2009). However, this process is not

rigid; “we may skip the first step if we can more readily determine that the

decision was not an abuse of discretion.” Id. Here, we may proceed directly to

the second step. McDonald raises several points that she contends either justify

a less deferential standard of review or show abuse of discretion by Hartford. 

We review a grant of summary judgment in an ERISA case de novo,

applying the same standard as the district court. Wade v. Hewlett–Packard Dev.

Co. LP Short Term Disability Plan, 493 F.3d 533, 537 (5th Cir. 2007). The

Supreme Court requires that a denial of benefits be reviewed under a de novo

standard “unless the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits.” Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Abuse of discretion is the proper

standard for review of “determinations made pursuant to a plan that gives the

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administrator discretionary authority to determine eligibility,” as this plan does.

Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 598 (5th Cir. 1994).

Where, as here, a challenge to a denial of benefits does not involve the

interpretation of plan terms but disputes whether an individual’s conditions

qualify as a disability, the inquiry involves factual determinations; therefore,

abuse of discretion is the proper standard. See Wade, 493 F.3d at 540. 

Under an abuse of discretion standard, “[i]f the plan fiduciary’s decision

is supported by substantial evidence and is not arbitrary or capricious, it must

prevail.” Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th

Cir. 2004). “‘Substantial evidence is more than a scintilla, less than a

preponderance, and is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’” Corry, 499 F.3d at 398 (quoting Ellis, 394

F.3d at 273). If a decision is made “without a rational connection between the

known facts and the decision or between the found facts and the decision,” the

decision is arbitrary. Bellaire Gen. Hosp. v. Blue Cross Blue Shield of Mich., 97

F.3d 822, 828 (5th Cir. 1996). “An administrator’s decision to deny benefits must

be ‘based on evidence, even if disputable, that clearly supports the basis for its

denial.’” Lain v. UNUM Life Ins. Co. of Am., 279 F.3d 337, 342 (5th Cir. 2002)

(quoting Vega, 188 F.3d at 299). If the administrator’s decision to deny a claim

is supported by “‘some concrete evidence in the administrative record,’” the

administrator did not abuse discretion. Id. (quoting Vega, 188 F.3d at 302). The

reviewing court may not substitute its judgment for that of the plan

administrator. Wade, 493 F.3d at 541. 

1. Structural Conflict of Interest

McDonald complains that Hartford’s dual role as insurer and plan

administrator gave rise to a conflict of interest that justifies de novo review,

rather than abuse of discretion; alternatively, McDonald argues that Hartford’s

structural conflict suffices to show abuse of discretion. The Supreme Court

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recognized in Metropolitan Life Insurance Co. v. Glenn that when “a plan

administrator both evaluates claims for benefits and pays benefits claims,” it

creates a structural conflict of interest. — U.S. at —, 128 S. Ct. at 2348. “If a

benefit plan gives discretion to an administrator or fiduciary who is operating

under a conflict of interest, that conflict must be weighed as a factor in

determining whether there is an abuse of discretion.” Firestone, 489 U.S. at 115

(internal modification and quotation marks omitted). “If the administrator has

a conflict of interest, we weigh the conflict of interest as a factor in determining

whether there is an abuse of discretion in the benefits denial, meaning we take

account of several different considerations of which conflict of interest is one.”

Holland, 576 F.3d at 247 (internal quotation marks omitted). If claimants do not

present evidence of the degree of the conflict, the court will generally find that

any conflict is “not a significant factor.” Id. at 249 (finding that where claimant

“adduced no evidence . . . that [administrator’s structural] conflict affected its

benefits decision or that it had a history of abuses of discretion,” any conflict was

insignificant in abuse of discretion analysis). 

Here, the district court considered Hartford’s “mere technically dual role”

and determined that abuse of discretion was the proper standard. An

examination of the record bears out the district court’s determination: McDonald

has not pointed to any specific evidence of a history of abuses of discretion or of

how Hartford’s structural conflict of interest may have affected its benefits

decision in this particular case. In addition, the record does not show that

McDonald attempted to conduct discovery on any potential conflicts of interest.

Rather, the record indicates that Hartford conducted nothing less than a “careful

investigation” of McDonald’s claim. See Corry, 499 F.3d at 398 n.11 (finding that

any potential structural conflict of interest did not adversely affect plan

administrator’s handling of claim where administrator spent over two and a half

years reviewing the claim and hired three specialists who gave “clear and

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unequivocal” opinions). Here, Hartford engaged three outside specialists to

review McDonald’s file; McDonald submitted additional documentation twice;

and Hartford entertained two appeals. McDonald has failed to put forth any

evidence of the degree of the alleged conflict, and she has also failed to show that

any structural conflict impacted Hartford’s decision in her case. Therefore, to

the extent that Hartford’s dual role as both insurer and plan administrator may

create a conflict, that conflict is not a significant factor that would justify a

change in the standard of review. The district court did not err in applying an

abuse of discretion standard to Hartford’s decision or in concluding that any

alleged conflict did not support McDonald’s claim that Hartford abused

discretion in denying benefits.

2. Possible Bias by Reviewing Physicians

McDonald argues that because the three reviewing physicians are

employed by agencies that contract with Hartford, the physicians were biased

in favor of Hartford; therefore, Hartford abused its discretion in relying on their

opinions. McDonald points to several federal district court cases that note a

potential conflict of interest on the part of UDC, the organization that employs

Drs. Turner and Pick, because of its “significant and ongoing relationship” with

Hartford. See, e.g., Caplan v. CNA Fin. Corp., 544 F. Supp. 2d 984, 991–92 (N.D.

Cal. 2008) (reviewing Hartford’s denial of claim with “skepticism” because

structural conflict of interest accompanied by “reliance on UDC, a company

which Hartford knows benefits financially from doing repeat business with it”).

McDonald notes that Drs. Turner and Pick have been criticized by district courts

for deficient reviews in similar cases. Hicklin v. Hartford Life & Accident Ins.

Co., No. CV06-4543, 2007 WL 4729856, at *7–8, *11 (C.D. Cal. Dec. 12, 2007)

(criticizing Hartford for “ignor[ing] the obvious, comb[ing] the record and

[taking] selective evidence out of context as a pretext to deny” a claim, detailing

misstatements and omissions by Dr. Turner, and describing Dr. Pick’s review as

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“deficient”). Hartford, in turn, cites several district court cases affirming

Hartford’s claim decisions that relied on opinions of UDC physicians. See, e.g.,

Singley v. Hartford Life & Accident Ins. Co., 497 F. Supp. 2d 807, 812 n.9 (S.D.

Miss. 2007) (upholding Hartford’s denial of claim even though Hartford used

reviewing physicians from UDC, including Dr. Turner); Dowdy v. Hartford Life

& Accident Ins. Co., 458 F. Supp. 2d 289, 296 n.9 (S.D. Miss. 2006) (same). 

While the Fifth Circuit has yet to discuss in great detail the impact of

potential physician bias on the ERISA standard of review, we have briefly

dismissed similar arguments in the past. For example, in Sweatman v.

Commercial Union Insurance Co., 39 F.3d at 601 n.14, we considered and

rejected the argument that reviewing physicians were biased, based solely on

their employment with a contracting agency. In that case, the physicians

reviewed twenty to thirty files per month for a contracting agency, but the

claimant pointed to no evidence to show that the physicians were financially

dependent upon the agency or the plan administrator. Id. We noted that “the

only way for [plan administrators] to meet [the claimant’s] standard for

impartiality would be to seek physicians willing to volunteer their time to review

the medical files of disability claimants.” Id. The Seventh Circuit recently

examined a similar issue when a claimant argued that de novo review—rather

than abuse of discretion—was warranted because the plan administrator used

in-house doctors for its file reviews. Davis v. Unum Life Ins. Co. of Am., 444

F.3d 569, 575–76 (7th Cir. 2006). The Seventh Circuit held that absent evidence

of “any specific incentive [for the in-house doctors] to derail [a] claim,” such as

giving the doctors “some specific stake in the outcome of [a] case,” the theoretical

argument that “in-house doctors have an inherent conflict in every case” is

insufficient to change the standard of review. Id. 

Here, McDonald does not appear to have pursued discovery on this issue,

nor has she presented the type of specific evidence of bias that would show abuse

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of discretion or justify a change in the standard of review. While she points to

the conclusions of district courts and cites evidence presented in other cases, the

record before us contains no documentary or testimonial evidence regarding the

financial relationship between Hartford, UDC, and the individual physicians.

Furthermore, McDonald does not present any evidence showing an incentive for

the doctors to undermine her case in particular. McDonald’s attempts to provide

specific evidence of bias fail to rise past the level of conclusory allegations; the

district court did not err in finding that Hartford did not abuse its discretion on

this point. 

3. Lack of Physical Examination

McDonald argues that Hartford abused its discretion by failing to order a

new physical examination, or Functional Capacity Examination (FCE), as Drs.

Hubbell and Steck recommended during the administrative review process.

However, the policy places the burden on the claimant to provide proof of

loss—at the claimant’s own expense—including “[o]bjective medical findings

which support [the] disability. Objective medical findings include but are not

limited to tests, procedures, or clinical examinations standardly [sic] accepted

in the practice of medicine, for [the] disabling condition(s).” In addition,“the

burden is not solely on the administrator to generate evidence relevant to

deciding the claim.” Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329,

335 (5th Cir. 2001) (modification and internal quotation marks omitted);

Gothard v. Metro. Life Ins. Co, 491 F.3d 246, 249 & n.7 (5th Cir. 2007) (declining

to require a physical examination prior to denial of claim and citing cases in

support); cf. Holland, 576 F.3d at 250 (declining to require administrator to

consult with vocational expert, and quoting Duhon, 15 F.3d at 1309, for

proposition that a “reviewing court [may] decide, on a case-by-case basis,

whether under the particular facts the plan administrator abused his discretion

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No. 09-30381

 McDonald relies on a letter from Dr. Hubbell contending that it is “very unlikely that 8

[McDonald] will be able to return to work in any type of gainful employment” and concluding

that she is “totally and permanently disabled due to her degenerative condition of her cervical

and lumbar spine causing her to have persistent pain and muscle spasms.” This letter was

written on August 21, 2007, and forwarded to Hartford on September 4, 2007. However, as

discussed above, the administrative record closed in June 2006, when McDonald filed suit, and

McDonald did not request that the letter be included in the record during the remand.

Therefore, this letter from Dr. Hubbell is not part of the administrative record and we cannot

consider it when analyzing whether Hartford acted arbitrarily or capriciously. 

19

by not obtaining the opinion of a vocational rehabilitation expert”). McDonald

fails to show abuse of discretion on this point. 

4. Lack of Deference to Treating Physicians’ Opinions

McDonald contends that Hartford abused its discretion by improperly

discounting the opinions of her treating physicians. However, the Supreme

Court has explicitly disapproved of a “treating physician” rule in the ERISA

context and held that “plan administrators are not obliged to accord special

deference to the opinions of treating physicians.” Black & Decker Disability Plan

v. Nord, 538 U.S. 822, 825 (2003). Administrators do not bear “a heightened

burden of explanation . . . when they reject a treating physician’s opinion.” Id.

at 830. “So long as the [p]lan [a]dministrator’s decision is rationally related to

the evidence, we do not require the [p]lan [a]dministrator to credit a particular

area of expertise when deciding on an applicant’s prognosis.” Holland, 576 F.3d

at 249, 250 (quoting language from Black & Decker, 538 U.S. at 834, that courts

may not “impose on plan administrators a discrete burden of explanation when

they credit reliable evidence that conflicts with a treating physician’s

evaluation”). 

While the record does contain some evidence indicating that McDonald

suffers from some permanent health issues, Hartford’s decision to deny benefits 8

also finds support in the record. The fact that Hartford’s support comes from

reviewing physicians does not render its decision arbitrary or capricious; even

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McDonald’s physicians have not expressed consistent opinions regarding the

extent of her disability and her ability to perform sedentary work. 

For example, during the remand period, when Hartford re-interviewed Dr.

Steck—the neurosurgeon who performed McDonald’s surgery—he did not give

a clear “yes” or “no” answer when asked about the extent of McDonald’s

disability. The interviewer asked: “Is there anything medically really why

[McDonald] could not have done [sedentary work] three months post-op?” Dr.

Steck replied: 

We are dealing basically with subjective complaints but they are

based on objective data in that she has degenerative disc disease in

the lumbar spine[;] she has documented lumbar disc herniation that

was bad enough to require a lumbar decompression fusion, and I

have dealt with enough of these patients [to know] that there will

be a significant subset who will not return to any type of

employment due to complaints of pain and there is no way I can

prove that she doesn’t have pain, we could always say well I don’t

see why she can’t work, most people could but not everybody . . . . 

The objective data is that, yes, she did have surgery, the subjective

component is that although she is neurologically normal and

everything looks just fine, although many people in this situation

would be able to work although she tells me that she actually is

better from the surgery, she had it, but doctor I just hurt too much

to work. Based on that I just can’t sign a letter or do a dictation

saying that I think she can work. 

(emphasis added). While Dr. Steck expressed concern for McDonald’s subjective

complaints of pain and noted that the subjective complaints were based

objectively on her degenerative disc disease, he also made the statement that

“she is neurologically normal and everything looks just fine.” 

When Hartford reached its final decision, it had consistent reports from

the three reviewing physicians indicating that McDonald did not meet the

definition of “disabled”; it had Dr. Steck’s mixed statement; and it had Dr.

Hubbell’s letter dated February 13, 2006, which recommended that McDonald

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receive additional pain treatment and indicated: “I know that she can’t perform

full-time work at this time, but I believe that if her cervical pain were resolved,

she would be able to return to at least twice as much work as she is able to do

today if not full-time work.” Hartford’s decision to deny benefits has clear

support in the administrative record, and the decision is rationally related to the

evidence Hartford had before it at the time of the decision. See Holland, 576

F.3d at 249. “[T]he job of weighing valid, conflicting professional medical

opinions is not the job of the courts . . . [but rather the job of] the administrators

of ERISA plans,” Corry, 499 F.3d at 401, and therefore McDonald’s argument

that Hartford failed to give adequate weight to the opinions of her treating

physicians must fail. Hartford did not abuse its discretion in adopting the

opinions of the reviewing physicians over the treating physicians. 

5. Lack of Consideration of Subjective Complaints of Pain

McDonald argues that Hartford abused its discretion by failing to give

adequate weight to her consistent complaints of pain. To support her argument,

McDonald relies on Audino v. Raytheon Company Short Term Disability Plan,

129 F. App’x 882 (5th Cir. 2005) (per curiam), where we reversed a summary

judgment in favor of a plan administrator that had denied benefits to a claimant

who complained of pain. In Audino, we found an abuse of discretion because the

administrator 

ignored [the claimant’s] consistent complaints of pain as subjective,

either minimized or ignored objective evidence of disability

corroborating those complaints, and concluded that the evidence did

not show an inability to do her job functions without analyzing the

effect that her conditions would have on her ability to perform her

specific job requirements. 

129 F. App’x at 885. However, in that case the claimant presented specific

evidence of misstatements and oversights by the reviewing physicians that the

plan administrator relied upon in denying the claim. Id. at 884–85 (noting that

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one physician misstated objective test results, while another mentioned exam

results in a summary of evidence but failed to discuss those results in analysis

of whether claimant was disabled). 

More applicable than Audino is the case of Corry v. Liberty Life Assurance

Co. of Boston, where we addressed in detail whether an administrator’s review

adequately considered a claimant’s subjective complaints of pain. 499 F.3d at

399–401. There, the claimant’s experts opined that she was disabled due to

fibromyalgia—a diagnosis reached by reliance on the claimant’s subjective

reports of pain. Id. at 401. The plan administrator ultimately rejected the

claimant’s assertion that she was disabled, relying on the opinions of three

outside reviewing physicians. Id. All three reviewing physicians discussed the

claimant’s subjective complaints and her previous diagnosis of fibromyalgia in

their analyses; yet they each ultimately concluded that no medical evidence

existed establishing a disability. Id. In Corry, we concluded that this

constituted a “battle of the experts,” where the administrator was “vested with

discretion to choose one side over the other”; therefore, we rejected the argument

that the administrator “fail[ed] to consider and give proper weight to relevant

evidence” of subjective pain. Id. 

Here, Hartford and its reviewing physicians clearly “considered, evaluated,

and addressed” McDonald’s subjective complaints of pain; however, the

reviewing physicians still reached the conclusion that McDonald’s

administrative record did not contain objective medical evidence of disability.

Corry, 499 F.3d at 401. The denial letters indicate that Hartford considered her

subjective complaints. In the first denial letter, Hartford acknowledged

McDonald’s continuing neck pain and her “difficulties with pain” but concluded

that no neurological abnormalities were present and that the evidence did not

“support a functional impairment that would preclude [her] from performing the

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material and substantial duties of [her] regular occupation on a full-time basis.”

When denying her first appeal, Hartford informed McDonald that: 

we considered your self-reported symptoms and to what extent the

findings on physical examination and testing results confirm the

symptoms. We also considered the impact the findings would have

as far as your ability to funciton on a daily basis and how it would

continuously affect your ability to perform your regular occupational

work activity on a full-time basis. 

In its final denial letter, Hartford mentioned that it had considered letters from

McDonald herself and from Dr. Hubbell detailing her subjective complaints. In

addition, the administrative record contains notes from an interview with

McDonald, detailing the impact of her pain on her daily life at work and at

home. 

The reviewing physicians also clearly considered and addressed

McDonald’s subjective complaints. Dr. LeForce, the initial reviewing physician,

noted “complaints of neck and low back pain,” and “continued neck pain.” On

the first administrative appeal, Dr. Turner discussed McDonald’s reports that

she suffers radiating low back pain, aggravated by sitting and walking and

partially relieved by rest, as well as chronic neck pain. Finally, Dr. Pick

considered evidence that McDonald suffered from “chronic pain” and clinical

notes from her treating physicians regarding her subjective complaints,

including: “a history of an insult with severe low back pain and radiating right

pain and recent onset numbness in her upper extremities”; “lumbar pain as well

as leg pain”; “[s]he states the pain is getting worse”; “[s]he still has some low

back pain, some buttock pain, some chronic neck pain, but all those better than

preop.” All three reviewing physicians considered McDonald’s subjective

complaints but ultimately concluded that these subjective complaints were

insufficient to support a finding of disability. 

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Unlike in Audino, the reviewing physicians did not ignore McDonald’s

complaints but included them in their analyses. McDonald argues that the

reviewing physicians “mischaracterized the results of her MRIs,” but even Dr.

Steck, her treating physician, stated that McDonald was “neurologically

normal.” Any difference of opinion between the reviewing and treating

physicians on the interpretation of her MRIs falls into Hartford’s area of

discretion; McDonald does not point to any affirmative misstatements of

objective test results of the kind presented in Audino. 

While Hartford’s conclusions conflict with Dr. Hubbell’s evaluation of

McDonald’s condition, Dr. Steck’s final interview with Hartford on remand

contains language that supports the conclusion that the record did not contain

objective medical evidence of disability. Hartford has discretion in this battle of

experts, and in the absence of evidence that Hartford failed to consider

McDonald’s complaints of pain, Hartford was within its discretion to accept the

opinions of its three qualified medical experts. Hartford’s decision was neither

arbitrary nor capricious on this point. 

6. Insufficient Evidence to Support Denial of Claim

Finally, and more generally, McDonald complains that Hartford “cherrypicked” quotes and facts out of the administrative record to support its decision

to deny her claim for benefits. However, under Fifth Circuit law, Hartford has

discretion under the plan to investigate the claim and draw the conclusions it

deems proper. “The law requires only that substantial evidence support a plan

fiduciary’s decisions, including those to deny or to terminate benefits, not that

substantial evidence (or, for that matter, even a preponderance) exists to support

the employee’s claim of disability.” Ellis, 394 F.3d at 273. 

Here, Hartford solicited the medical opinions of three separate physicians.

Drs. Turner and Pick are both board certified orthopedic surgeons, “specialists

and qualified experts in [a] field[] specifically related” to McDonald’s symptoms;

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No. 09-30381

 As discussed above, the record does not explicitly show whether Dr. Pick reviewed Dr. 9

LeForce’s or Dr. Turner’s evaluations. 

25

at least two of the three physicians reached their conclusions independently.

9

Corry, 499 F.3d at 402. In Corry, we found it “indisputable that the medical

opinions of [the plan administrator’s] three consulting physicians . . . constitute

substantial evidence supporting [the disability decision].” Id. In addition to the

opinions of the three reviewing physicians, the administrative record contains

other evidence in support of Hartford’s decision: in particular, Dr. Steck’s

statement that McDonald was “neurologically normal and everything looks just

fine.” Furthermore, McDonald admitted that she gets help to fulfill the duties

of her job and that her employer has been cooperative and flexible. Hartford’s

decision does not need to be correct; it simply must not be arbitrary. Cf.

Gothard, 491 F.3d at 250 (“MetLife’s decision may not be correct, but we cannot

say that it was arbitrary.”). On the administrative record, Hartford’s decision

to deny her claim was supported by substantial evidence and there was no abuse

of discretion. 

III. CONCLUSION

For the above reasons, we AFFIRM. 

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