* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 17, 2007 Charles R. Fulbruge III Clerk 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-31175 Summary Calendar

RICK F JANIES Plaintiff-Appellant v. METROPOLITAN INSURANCE CO Defendant-Appellee

Appeal from the United States District Court for the Western District of Louisiana

(No. 2:05-CV-1628)

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM: *

Rick Janies appeals the district court’s grant ofsummaryjudgment in favor of Metropolitan Life Insurance Company (“MetLife”) on Janies’s claim for wrongful termination of his disability benefits. We affirm.

I. FACTS AND PROCEEDINGS Janies was employed by CITGO Petroleum Corporation (“CITGO”) as an event coordinator. His responsibilities included coordinating training classes,No. 06-31175

2 arranging seminars, and planning educational events for employees. As a CITGO employee, Janies participated in thecompany’s long-term disability plan which is governed by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. H e began suffering severe health problems and applied for disability benefits in April 2003. To receive benefits for the first twelve months of disability, the MetLife plan required that the applicant’s medical condition prevent him from being able to earn 80% of his predisability earnings or 80% of his indexed predisability earnings in his own occupation. Janies’sc

laim was approved, and he received disability payments under the plan for twelve months. After the first twelve months of disability payments, the MetLife plan required that the participant be unable to earn more than 60% of his indexed predisability earningsfrom any employer in his local economy at any gainful occupation for which hewas reasonably qualified, taking into account his training, education, experience, and predisability earnings. In accordance with the policy, MetLife notified Janies in November 2003that hewould have tomeet this new definition of disability in order to continue receiving benefits. During November 2003, MetLife began an investigation into whether Janies would be entitled to receive benefits after his first tw elve months of disability. As part of that investigation, MetLife requested information from Janies. Janies provided a statement and medical records from one doctor but no records were received from a second doctor. On February 14, 2005, MetLife wrote to Janies reviewing the attempts that it had made to obtain medical information necessary toevaluate hisclaim and advising him that hisclaim was terminated for failure to submit the necessary information. After termination, Janies provided some additional information, which MetLife reviewed. A nurse consultant for MetLife determined that the additional information did not support the conclusion thatJanies’s disability prevented him from working. On April 26, 2005, Janies appealed the decision and MetLife referred it to twoNo. 06-31175

3 independent physician consultants who concluded that there was insufficient information to change the initial determination. The denial was upheld. Janiescommenced thisaction in statecourt, and MetLife removed it tothe Western District of Louisiana in September 2005. II. STANDARD OF REVIEW This court reviews de novo the district court’s decision that a plan administrator did not abuse its discretion in discontinuing disability benefits. See Barhan v. Ry-Ron Inc., 121 F.3d 198, 201 (5th Cir. 1997). Since the terms of the ERISA benefit plan give the plan administrator discretionary authority to determine benefits, the district court reviews the denial of benefits for abuse ofdiscretion. See id. “[I]fthe administrator’s decision on eligibility is supported by substantial evidence and is not erroneous as a matter of law, it will be

upheld.” I d. However, because MetLife acts as both the insurer and the plan administrator, it operates under a conflict of interest because it “potentially benefits from every denied claim.” Vega v. Nat’l Life Ins. Servs., Inc., 188 F.3d 287, 295 (5th Cir. 1999). This court therefore applies a “sliding scale standard” and grants MetLife’s decision less than full deference. Gooden v. Provident Life & Accident Ins. Co., 250 F.3d 329, 333 (5th Cir. 2001). III. DISCUSSION Janies challenges MetLife’s decision to discontinue disability benefits on the basis that the administrative record establishes extensive evidence of his ail ments. Janies also argues there is no evidence to support MetLife’s contention that he can return to work. Janies is correct that the record establishes extensive evidence of his ailments. MetLife’s previous conferral of disability benefits to Janies for twelve months establishes that. However, in order to continue receiving disability payments after the first twelve months, Janies’sailments must meet the morestringent standard ofpreventing him from earning more than 60% of his indexed predisability earnings at any gainfulNo. 06-31175

4 occupation for which he is reasonably qualified. Janies failed to establish that his disability qualified him for benefits under this standard. MetLife based its denial of Janies’s claim on the conclusions of a nurse

c onsultant and two physician consultants. Janies argues that there is an overwhelming amount ofevidence in favor ofhis claim. While there is evidence ofmedical problems, he provides nosupport or medical opinion to showthat his ailments qualify him for disability benefits within the meaning ofthe disability plan at issue. The attending physician statement provided to MetLife on January 2, 2004 indicates that Janies would improve “in a dif ferent work environment.” Janies’ doctor advised Janies, “Not to return to present job.” The determinations ofthree of MetLife’s medical consultants and the statements of Janies’s own doctors provided substantial evidence for MetLife’s decision. Janies has not demonstrated a genuine issue of fact as to whether MetLife abused its discretion in discontinuing benefits. IV. CONCLUSION The judgment of the district court is AFFIRMED.