1 Revised May 16, 2001

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 99-31178

____________

RONALD G. GOODEN, SR.,

Plaintiff - Appellee,

versus

PROVIDENT LIFE & ACCIDENT INSURANCE CO; ET AL,

Defendants,

PROVIDENT LIFE & ACCIDENT INSURANCE CO.,

Defendant - Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

May 14, 2001

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Ronald Goode n, Sr. (“Gooden”) sued Provident Life and Accident Insurance Company1 To be eligible for benefits the claiman t must meet the policy ’s disability definition. The policy

provides:

During the Own Occupation Period, Covered Persons are Disabled from their own occupation if due

to their Sickness or Injury they:

1. are unable to earn at least the Own Occupation Income Level or;

2. are unable to perform each of the material duties of the occupation that they regularly

perform for the Employer.

2 (“Provident”) for improperly denying his claim for long term disabilit y benefits. The district court

found that Gooden was entitled to benefits and that Provident abused its discretion by failing to

reasonably investigate Gooden’s claim. We reverse and render judgment for Provident.

I

Gooden received coverage from the long term disabilit y policy supplied by h is employer,

BE&K. The policy, which Provident issued and administered, provides “income replacement

benefit s” for a covered, disabled employee who satisfies the policy’s conditions. 1 Gooden sought

disabilit y benefits under the policy due to his angina and coro nary artery disease, which were

discovered after he suffered a heart attack. For approximately seven months after his heart attack,

Gooden was unable to work, and, therefore, received short term disabilit y ben efits. Thereafter,

BE&K placed Gooden on unassigned status, as his cardiologist, Dr. Causey, had indicated he could

return to work. Less than a month later, BE&K terminat ed Go o den’s employment due to a

workforce reduction. At this time, Gooden requested that BE&K file a claim on his behalf for long

term disability benefits.

Gooden’s application for benefits included the following documents: a Claimant’s Statement,

an Employer’s Statement, an At t ending Physician’s Statement of Disability (“APS”), which Dr.

Causey compl et ed during Gooden’s last appointment, medical records relating to Gooden’s

treatment, and a lett er fro m Dr. Causey that was dated after Gooden had been informed that his2 Gooden was required to stand for one hour, three times a day, walk for half hour periods for a total

of three hours a day, and sit for an hour at a time for up to four hours a day. He was also required to lift up to fifteen

pounds occasionally, was exposed to temperatures varying from thirty to one hundred degrees, and engaged in “some

limited climbing, bending and squatting.”

3 The file given to Dr. Metcalf included Dr. Causey’s most current notes on Gooden, as Provident

was not yet in possession of Dr. Causey’s notes from early in Gooden’s treatment.

3 employment was terminated. In the Claimant’s Statement, Gooden noted without elaboration, that

he wa s emplo yed as a piping engineer, and that his injury was not work related. The Employer’s

Statement contained information regarding the date he returned to work, and the date his employment

was terminated. The APS reflected, i nter alia

, Dr. Causey’s findings: (1) that Gooden suffered from

occasional angina; (2) that his condition had improv ed; (3) the date on which he would be able to

return to work; and (4) his wo rk capacity limitations. The medical records included Gooden’s

hospital records and the results of his latest stress test. Finally, the letter from Dr. Causey stated that

Gooden had coronary artery disease and angina pectoris, which w ere significant and limited his

activity. Although Dr. Causey noted that Gooden had not sustained an “unstable event in the past

few months,” Dr. Causey felt that Gooden was disabled and could not return to his previous

employment.

BE&K also provided Provident with a job analysis form, which detailed the requirements of

Gooden’s job. 2 Additionally, Provident requested all of Dr. Causey’s notes regarding Gooden, and

sent Dr. Causey a physical capacities form to determine Gooden’s abilit y to perform his job’s duties.

Dr. Causey did not fill out the form, but instead referred Provident to his earlier letter.

Thereafter , Provident’s medical consultant, Dr. Metcalf, reviewed Gooden’s file and

determined that the condition of Gooden’s heart could be verified from his most recent stress test and

arteriography. 3 Based on these result s and Gooden’s job responsibilities, Dr. Metcalf found that4 Gooden also asserted that Provident was unaware of the “material duties of [his] job.”

4 Gooden was capable of performing all of his job’s duties.

After Dr. Causey’s records arrived, Provident sent a letter to Gooden informing him that it

had denied his claim. Provident explained that it based its denial on a review of Dr. Causey’s records,

Gooden’s hospital records, Provident’s me dical staff’s determination that the “objective medical

findings” did not support Gooden’s disability claim, and the results of Gooden’s most recent stress

test indicating that his “heart was well within normal limit s.” Further, Provident apprized Gooden

that between the time he returned to work and when he was laid off there was no indication that he

could not perform his job’s duties.

Gooden appealed Provident’s decision claiming that Provident relied on two erroneous facts:

that he had returned to work during the weeks prior to his termination, and that his heart was within

normal limit s. 4 To resolve the confusion regarding whether Gooden had returned to work, Provident

contacted BE&K. BE&K informed Provident that after Gooden’s doctor released him to return to

work, BE&K placed Gooden on unassigned employee status, but never assigned him work. BE&K

explained to Provident that unassigned employees are “paid to be available for assignment as the need

may arise.”

Next, Provident assembled an ERISA Appeals Committee, composed of three of Provident’s

employees, to review Gooden’s appeal. The Committee upheld the denial of benefits based on the

results of Gooden’s stress test, and the fact that he applied for long term disabilit y after he was laid

off. Provident notified Gooden of the Appeals Committee’s decision, and the reasons for that

decision. Furthermore, Provident reiterat ed that it lacked “medical documentation” buttressing

Gooden’s assertion that “his condition changed between the time he returned to work and the date5

he requested LTD forms.” Pro vident informed Gooden that he would need to submit “medical

evidence that [] support[ed] functional loss” for Provident to reevaluate its determination.

Gooden respon ded by sending Provident two letters, and a copy of the complaint he filed

against Provident. In the letters he argued that Pro vident did not consider the information he

submitted, offered to participate in a deposition of Dr. Causey, and inquired concerning the appeal

period. Provident replied by inviting Gooden to submit medical findings that suggested his health

changed from the time he was released to work until the time he was terminated, and advised him

regarding the ERISA appeal period. Thereafter, Gooden proceeded with his claim in district court.

The district court determined that the Empl o yee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § § 1001, et seq

, governed Gooden’s claim because the policy fell within the

definition of an employee welfare benefit plan. After deciding that it could consider evidence outside

the a dminist rative record to determine whether Provident’s investigation was “not impartial [and]

unreasonable” and “whether Provident abused its discretion in interpreting the policy’s terms,” the

court held that Provident abused its discretion. The court predicated its decision on its determination

that Provident failed “to conduct a reasonable and impartial investigation.” Based on the evidence

in the administra t ive record and the evidence produced at trial, the court concluded that Gooden

qualified for long term disability benefits.

II

ERISA authorizes our review of Provident’s denial o f Go o den’s claim. S ee 29 U.S.C. §

1132(a)(1)(B) (providing a beneficiary with the right to bring a civil action “to recover benefits due

to him under the terms of his plan”). We review Provident’s decision for an abuse of discretion, as

Gooden’s policy reserves to Provident the discretion to determine Gooden’s entitlement to benefits.6

See Vega v. Nat’l Life Ins. Servs., Inc.

, 188 F.3d 287, 295 (5th Cir. 1999) (en banc) (reviewing for

abuse of discretion “when an administrator has discretionary authority”). Our analysis of whether

Provident abused its discretion is informed by Provident’s role as both the insurer and administrator

of Gooden’s long term disabilit y plan. As such, Provident operates under a conflict of interest

because it “potentially benefits from every denied claim.” I d

. at 295. Therefore, we apply a “sliding

scale standard” and accord Provident’s decision less than full deference. Id . at 297.

When it reviewed Gooden’s claim, the district court did not have the benefit of our decision

in Vega . In V

ega

, we clarified that a conflicted administrator is not under a duty to “reasonably

investigate” a claim because it would be “not only inappropriate but in efficient to require the

administrator to obtain [] info rmation [in the claimant’s control] in the absence of the claimant’s

active cooperation.” Id . at 298. Further, we held that a district court, in most instances, is limited

to the administrative record when it reviews an administrator’s determination. S ee id

. at 299. As a

result, a district court must inquire only whether the “record adequately supports the administrator’s

decision”; from that inquiry it can conclude that the administrator a bused it s discretion if the

administrator denied the claim “[w]ithout some concrete evidence in the administrative record.” I d

.

at 298, 302.

Gooden asserts that Vega does not alter the validity of the district court’s decision to consider

evidence outside the administrative record. He maintains that our decision in W ildbur v. Arco Chem.

Co.

, 974 F.2d 631 (5th Cir. 1992), create d an exception for the use of evidence outside the

administrative record to demonstrate that the administrator acted in a biased, partial, or unreasonable

manner. Gooden misapprehends the breadth of this exception. In W ildbur

, we stated that

“[d]etermining whether the administrator has given a uniform construction to a plan may require a5 Although Gooden does not argue that his evidence will “assist[] the district court in understanding

the medical terminology or practice related to a claim,” we have also created an exception for the admission of such

evidence. Bratton , 215 F.3d at 521.

6 While Dr. Metcalf’s recommendation was cabined by his statement that his opinion could change

if Gooden’s condition worsened, neither Provident nor Dr. Metcalf had reliable medical documentation that Gooden’s

condition had changed. Additionally , although Dr. Causey indicated on the APS that Gooden could not lift more than

twenty pounds, Gooden’s job did not require him to lift more than fifteen pounds.

7 In his letter, Dr. Causey conceded that Gooden had not recently suffered any “unstable events.”

Furthermore, Provident specifically requested additional medical information from Dr. Causey, which Dr. Causey did

not supply. Although Gooden complains that Provident rejected an opportunity to gain information from Dr. Causey

, i.e., by deposing him, Gooden could have remedied this situation by deposing Dr. Causey and forwarding the deposition

7 court to evaluate evidence of benefit determinations other than the one under scrutiny.” Id

. at 638.

Since Wildbur

, we have further clarified that this exception applies to evidence that “relate[s] to how

an administrator has interpreted terms of the plan in other instances.” S ee Estate of Bratton v. Nat’l

Union Fire Ins. Co.

, 215 F.3d 516, 521 (5th Cir. 20 00) ( citing Vega , 188 F.3d at 299). 5 As the

evidence Gooden desires admitted does not “relate to how [Provident] has interpreted the terms of

the plan in other instances,” our review will be confined to the ev idence co ntained in the

administrative record.

Provident did not abuse its discretion when it denied Gooden’s claim because its decision is

supported by the administrative record. The evidence contained in the administrative record, which

includes the APS filled out by Dr. Causey, Gooden’s most recent stress test, Dr. Metcalf’s

recommendation, and the information regar ding the requirements of Gooden’s job, indicates that

Gooden was capable of fulfilling the duties of his job prior to his termination. 6 While it is true that

the record contains a letter from Dr. Causey stating that Gooden was disabled, this letter does not

undermine Provident’s decision, as it was written after Gooden learned he was being terminated, and

was unaccompanied by medical evidence indicating that Gooden’s condition changed since the last

time Dr. Causey had seen Gooden. 7 Consequently, Provident cannot be faulted for failing to give Dr.to Provident to be placed in the administrative record. See Vega , 188 F.3d at 298, 300.

Gooden also charges Provident with violating the dictates of Salley v. E.I. DuPont de Nemours &

Co.

, 966 F.2d 1011, 1015 (5th Cir. 1992), by affording more weight to Dr. Causey’ s APS statements than his

statements in the letter. In S alley

, we found that an administrator abused its discretion because it relied on a

phy sician’s determination that a patient was not suicidal, but refused to follow the phy sician’s advice that the patient

required a plan for her release. The present case is factually distinct from S alley because Dr. Causey’s statements are

contradictory, and the conclusions contained in his letter are not supported by medical evidence.

8 Gooden complains that Provident failed to appreciate Dr. Causey’s concern for the stress associated

with his job. This information was available to Dr. Causey when he noted on the APS the date Gooden could return

to work. Gooden also asserts that the early evaluations of his condition objectively suppor t his claim for benefits.

These findings, however, were updated as Gooden’s condition improved.

8 Causey’s letter overriding significance in the face of medical documentation, including Dr. Causey’s

own reports, indicating that Gooden was not disabled. In addition to the medical documentation, the

record indicates that Gooden had been placed on unassigned statu s, which required him to be

available for work, for almost a month prior to his termination. Accordingly, Provident’s decision

was not an abuse of discretion because, unlike the administrator in Vega

, Provident based its decision

on “concrete evidence in the administrative record.” Vega , 188 F.3d at 302.

Although Gooden advances a variety of arguments in support of his claim, none justifies

f inding t hat Provident abused its discretion. Gooden argues that Provident ignored evidence

supporting his claim, i.e., Dr. Causey’s letter, and the fact that he did not return to work. 8 First, Dr.

Causey’s letter was not supported by his previous findings nor the medical evidence, and, therefore,

Provident’s treatment of the letter was not an abuse of discretion. Cf. Aboul-Fetouh v. Employee

Benefits Comm.

, No. 00-60367, 2001 WL 261815, at *6 (5th Cir. March 16, 2001) (finding that

claimant’s treating physician’s later attem pt t o pro vide latitude to his original, precise disability

classification was insufficient to create an issue of triable fact); Sweatman v. Commercial Union Ins.

Co. , 39 F.3d 594, 602-03 (5th Cir. 1994) (accepting administrator’s reliance on diagnoses of

independent physicians, where those diagnoses conflicted with the diagnoses of the claimant’s9 Gooden argues that Provident should have ordered an independent medical examination as Dr.

Metcalf was a hired consultant for Provident who did not have the opportunity to examine Gooden. This argument

is without merit. Dr. Metcalf stated that Gooden’s condition could be objectively verified and did not indicate that an

examination of Gooden was required. Further, the Plan does not require that claimants be examined prior to the denial

of their claims. S ee Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc.

, 168 F.3d 211, 215 (5th Cir. 1999) (finding

that the administrator of a disability plan did not abuse its discretion by denying a claim after reviewing the claimant’s

hospital records, and having its phy sicians, who were not specialists, review the claim).

9 physicians). Second, Gooden is correct that there was a misunderstanding between Provident and

BE&K regarding Gooden’s return to work. BE&K initially told Provident that Go o den was

performing 100 percent of his duties sho rtly before he was terminated. Provident subsequently

learned that BE&K had placed Gooden on unassigned employee status, but never assigned Gooden

work. BE&K, however, informed Provident that as an unassigned employee Gooden received 80

percent of his base pay for being available to work as the need arose. Based on this information, it

was n o t an abuse of discretion for Provident to conclude that placing Gooden on unassigned

employee status indicated that he had returned to work, or, at a minimum, was capable of returning

to work. S ee Aboul-Fetouh

, 2001 WL 261815, at *6 (finding no abuse of discretion when evidence

in the record did not support disability claim).

Gooden also complains that Provident unduly relied on Dr. Metcalf’s assessment of Gooden’s

health when Dr. Metcalf never physically examined Gooden, did not speak to Dr. Causey, and did

not have all of Dr. Causey’s notes. 9 Although Dr. Metcalf did not examine Gooden, he had copies

of Gooden’s hospital records, his most recent stress test and arteriography, the APS completed by

Dr. Causey, and Dr. Causey’s most recent letter. Furthermore, Dr. Metcalf stated that Gooden’s

condition could be verified from the objective medical information. Accordingly, Provident did not

abuse its discretion by relying on Dr. Metcalf’s assessment.

Additionally, Gooden argues that Provident never informed him of the evidence it relied on10

in evaluating his claim. Provident’s letter to Gooden specifically advised him that it based its

determination on a review of Dr. Causey’s records and Gooden’ s hospital records, his job

r equirements, the recommendation of its medical staff, and his most recent stress test. Moreover,

Go o den did not attempt to review the administrative record to determine what information it

contained despite the provision in Section VII of the policy, which authorizes “[c]overed [p]ersons

. . . [to] review any nonprivileged information that relates to their request for review” of the denial

of their claim. See also 29 C.F.R. § 2560.503-1(g)(1)(ii) (1997) (requiring plan fiduciary to allow

claimants to review pertinent documents). Thus, we are unconvinced by Gooden’s assertion that

Provident “kept him in the dark.”

Gooden also maintains that Provident was vague regarding the submissi on of medi cal

evidence to support his claim. On more than one occasion, Provident explained to Gooden that it had

no documentation to support the inference that his condition changed from the time BE&K placed

him on unassigned status until the time he was laid off. Gooden responded to these statements by

submitting copies of Dr. Causey’s letter. While he could have done so, he did not submit for

inclusion into the administrative record medical evidence calling into question his most recent medical

evaluations, which indicated he was capable of performing his job’s duties. See Vega , 188 F.3d at

300. As we noted in V

ega

, the “burden

[is no t ] so lely on the administrator to generate evidence

relevant to deciding the claim.” Id . at 298.

III

Because Provident did not abuse its discretion when it denied Gooden’s claim, we REVERSE

and RENDER judgment for Provident.