United States Court of Appeals

For the Eighth Circuit

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No. 18-1848

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David C. Nicholson

lllllllllllllllllllllPlaintiff - Appellant

v.

Standard Insurance Company; Standard Benefit Administration; Long Term

Disability Insurance Policy No 142134-B

lllllllllllllllllllllDefendants - Appellees

Compensation Committee; Cudd Pumping Services, Inc.; RPC Incorporated

lllllllllllllllllllllDefendants

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Appeal from United States District Court

for the Western District of Arkansas - Ft. Smith

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Submitted: April 17, 2019

Filed: July 3, 2019

[Unpublished]

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Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.

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PER CURIAM. 
DavidC. Nicholson brought this action undertheEmployeeRetirementIncome

Security Act (ERISA), 29 U.S.C. § 1001 et seq., claiming that Standard Insurance

Company (Standard) wrongfully denied his claimfor disabilitybenefits under a group

policy sponsored by his employer. The district court1granted summary judgment for

Standard. We affirm.

Nicholson has back and neck pain from a 1978 car accident. He worked for his

employer from 2001 until September 2014, when he submitted a claim for benefits

alleging that his pain had become disabling. At the time, Nicholson had sought

medical treatment only from his family physician, Suh Niba, M.D., who noted that

Nicholson had “been having increasing difficulty at work due to his neck pain.” 

Despite this observation, Dr. Niba did not increase Nicholson’s pain medication,

report that Nicholson suffered from any side effects on his current dosage of pain

medication, order any imaging tests, or refer Nicholson to a specialist.

The policy grants Standard discretion to resolve all questions arising in the

policy’s administration, interpretation, and application, as well as to determine who

was entitled to benefits. The policy insured Nicholson against hisinability to perform

his “own occupation” as performed in the national economy—notsimply hisinability

to performhisspecific job. Standard’s vocational expert determined that Nicholson’s

occupation in the national economy was a light strength range occupation. 

Gary Nudell, M.D., reviewed Nicholson’s medical records and discussed

Nicholson’s medical condition with Dr. Niba. Dr. Nudell found that “there were no

neurologic abnormalities documented, no imaging studies available for review, and

no other clinical documentation to otherwise support impairment.” He further

concluded that Nicholson “could perform light level activity on a full time basis with

1The Honorable P.K. Holmes, III, then Chief Judge, United States District

Court for the Western District of Arkansas.

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reasonable continuity.” Standard denied Nicholson’s claim based upon Dr. Nudell’s

review and the vocational expert’s occupation determination.

After the denial, Standard received further correspondence from Dr. Niba and

Nicholson’s employer. Dr. Niba again did not report any change of pain management

treatment, any imaging results, or any referral to a specialist. Based on Nicholson’s

employer’s correspondence, however, Standard determined that Nicholson’s

occupation was better described as a medium strength range occupation. Dr. Nudell

reviewed Nicholson’s medical record in light of Dr. Niba’s further correspondence

but still determined that Nicholson was not disabled. Standard also sought the

opinion of orthopedic surgeon Kenneth J. Kopacz, M.D., who concluded that

Nicholson could perform medium level duties. Standard informed Nicholson that it

had considered his supplemental materials but determined that he had not presented

evidence showing that he was disabled.

Nicholson formally appealed Standard’s decision, whereupon Standard sought

the opinion of Mark Shih, M.D., who is specialty certified in physical medicine and

rehabilitation. Dr. Shih reviewed Nicholson’s medical record and noted that there

were no changes appearing on any imaging tests, and although Nicholson reported

more pain, “typically there would be a change in his pain medication regimen, referral

to a specialty provider, and further evaluation of his condition.” Dr. Shih also

concluded that the medical record did not reveal that Nicholson suffered from any

cognitive impairment or deficit from his pain medication. Dr. Shih ultimately

concluded that Nicholson could performa mediumlevel occupation. Standard upheld

the denial of Nicholson’s claim, explaining that without any objective evidence to

support his assertion of increased pain, there was no satisfactory proof that Nicholson

satisfied the policy’s definition of “disability.” Nicholson subsequently filed suit in

federal district court. The court concluded that Standard did not abuse its discretion

in denying Nicholson’s claim and granted Standard summary judgment.

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We review de novo a district court’s grant of summary judgment. Hankins v.

Standard Ins. Co., 677 F.3d 830, 834 (8th Cir. 2012). “Where an ERISA plan gives

the administrator discretionary powerto construe ambiguousterms or make eligibility

determinations, the administrator’s decision is reviewed for an abuse of discretion.” 

Id. Under an abuse of discretion standard, we will uphold Standard’s denial if it was

“reasonable; i.e., supported by substantial evidence.” McGee v. Reliance Standard

Life Ins. Co., 360 F.3d 921, 924 (8th Cir. 2004) (quoting Donaho v. FMC Corp., 74

F.3d 894, 899 (8th Cir.1996)). Substantial evidence is defined as “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

(quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). “If substantial

evidence supports the decision, it should not be disturbed even if a different,

reasonable interpretation could have been made.” Id.

Nicholson first challenges the district court’s application of the abuse of

discretion standard. Nicholson argues that the court should have applied de novo

review because the policy is subject to Arkansas Insurance Department Rule 101,

which prohibits discretionary clauses in “all disability income policies issued in this

State which are issued or renewed on and after March 1, 2013.” See Ark. Admin.

Code 054.00.101. The policy was issued on January 1, 2007, and last amended on

January 1, 2013. The policy itself states that it “may be renewed for successive

renewal periods by the payment of the premium set by [Standard] on each renewal

date. The length of each renewal period will be set by [Standard], but will not be less

than 12 months.” Neither the policy, nor anything else in the administrative record,

signifies that Standard explicitly set a renewal date after March 1, 2013. The district

court thus correctly reviewed Standard’s decision for an abuse of discretion.

Nicholson contends, alternatively, that the district court erred in granting

summary judgment under the abuse of discretion standard. Standard sought the

opinion of three doctors, who, after reviewing Nicholson’s medical records, found

that there was no objective evidence of a disability. See McGee, 360 F.3d at 925 (“It

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is not unreasonable for a plan administrator to deny benefits based upon a lack of

objective evidence.”); see also Prezioso v. Prudential Ins. Co. of Am., 748 F.3d 797,

806 (8th Cir. 2014) (concluding that an insurance company “did not abuse its

discretion by according more weight to the opinions of its own experts”). Finally,

although Nicholson claims that his narcotic pain medication prevented him from

performing his own occupation, nothing in the administrative record reveals that

Nicholson experienced adverse side effectsfromhis medication or that he was barred

from performing his own occupation in the national economy because of his narcotic

medication. It was thus reasonable for Standard to deny the claim. 

Nicholson also fails to show that Standard acted under a conflict of interest

when it asked Dr. Nudell to again review Nicholson’s medical record after it received

further correspondence from Nicholson’s employer and Dr. Niba. Nicholson

seemingly claims that such correspondence constituted a formal appeal, thereby

requiring Standard to seek out the opinion of a different medical consultant. See 29

C.F.R. § 2560.503-1(h)(3)(v). Yet Nicholson did not file a formal appeal until after

Standard had reviewed the supplementalmaterials, at which time Standard sought Dr.

Shih’s opinion. Standard thus was in compliance with federal regulations.

The judgment is affirmed.

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