1The Honorable James M. Rosenbaum, United States District Judge for the

District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1493

___________

Judy DuMond, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Centex Corp., a Delaware corporation; *

Centex Service Co., a Delaware *

corporation; Centex Real Estate *

Corporation, a Delaware corporation; *

Great-West Life Annuity Insurance *

Company, a Canadian Corporation, *

* 

Appellees. *

___________

Submitted: December 18, 1998

 Filed: April 9, 1999

___________

Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.

___________

MAGILL, Circuit Judge.

Judy DuMond appeals the district court's1 order denying her motion for

summary judgment and granting summary judgment to the defendants Centex
2DuMond appeals only the portion of the district court’s order denying her

motion for summary judgment and granting Centex’s motion for summary judgment.

The district court granted Great-West’s motion for summary judgment on the ground

that Great-West, as an agent for the plan administrator, was a non-fiduciary and thus

not a party that could be sued. See J.A. at 487-89 (Hr’g on Mot. for Summ. J.)

(hereinafter “Hearing”). DuMond does not challenge this ruling on appeal.

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Corporation, Centex Service Company, and Centex Real Estate Corporation

(collectively Centex). DuMond sued Centex and Great-West Life Insurance

Company (Great-West) under the Employment and Retirement Income Security Act

of 1974, 29 U.S.C. §§ 1001-1461 (ERISA) when they denied her claim for long-term

disability benefits. We affirm.2

I.

From January 1983 to December 1995, DuMond was employed as a real estate

broker and agent at the Minnesota division of Centex Real Estate Corporation.

Centex Corporation and Centex Service are sponsors of an employee welfare benefit

plan (Plan) that offers both short-term disability (STD) and long-term disability

(LTD) benefits. DuMond was a participant in the Plan. Centex contracted with

Great-West to administer the Plan. Great-West, as a third party administrator,

supervised the initial administration of claims and payment of benefits to claimants.

Michael Albright, a Centex employee, served as the Plan Administrator and handled

appeals from Great-West’s decisions.

The Plan provides LTD benefits for employees who become totally disabled.

The Plan defines totally disabled as “the complete inability of a covered employee

because of accidental bodily injury or sickness to engage in any occupation or

employment for remuneration or profit for which he is reasonably suited by reason

of education, training or experience.” Plan § 4.2(2)(c). The Plan defines “sickness”
3

“Organic disease” is not defined in the Plan. An “organic disease” is “one

associated with demonstrable change in a bodily organ or tissue.” Dorland’s

Illustrated Medical Dictionary 487 (28th ed. 1994).

4DuMond states that Dr. Baumgartner also concluded she had CFS. However,

Dr. Baumgartner’s report, which DuMond cites as supporting this conclusion, does

not mention CFS. Instead, it lists her diagnoses only as Hypoglycemia and

Hypothyroidism. See J.A. at 248. Dr. Baumgartner’s handwritten notes, which

accompany his report, are illegible.

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as “an organic disease, psychosis, or pregnancy.” Plan § 4.2(2)(b) (emphasis added).3

In February 1994, DuMond began to experience various symptoms, including

fatigue, headaches, inability to concentrate, dizziness, and chest pains. According to

DuMond, these symptoms rendered her unable to do her job. DuMond sought

treatment from two doctors: Dr. Elizabeth Heefner, her gynecologist, and Dr. John

Baumgartner, an endocrinologist. Dr. Heefner referred DuMond to Dr. Jean Eckerly,

a physician specializing in preventive medicine and vascular disease. Both Drs.

Heefner and Eckerly concluded that DuMond suffered from Chronic Fatigue

Syndrome (CFS). Dr. Baumgartner concluded that DuMond suffered from

Hypoglycemia and Hypothyroidism.4 DuMond applied for and received STD benefits

under the Plan for the period of April 1, 1994 through September 30, 1994.

In February 1995, DuMond was still experiencing the same symptoms and

applied for LTD benefits, claiming she was totally disabled and still unable to work

due to CFS. As part of her application, DuMond submitted an attending physician’s

statement from Dr. Eckerly. Dr. Eckerly’s statement diagnosed DuMond with CFS

and stated she was totally disabled beginning in April 1994. Dr. Eckerly also stated

that there was possible toxicity due to root canal materials and that DuMond’s

immune system should be monitored for improvement following treatment of her

dental problems. Shortly before submitting her LTD claim, DuMond had dental

surgery to remove the suspect materials. This treatment was completed in June 1995.
5

It is undisputed that DuMond had totally recovered from her illness by the fall

of 1995.

6Diagnosis of exclusion means a “recognition of a disease by excluding all

other known diseases.” Dorland’s Illustrated Medical Dictionary, supra, at 458. CFS

is a diagnosis of exclusion because it is diagnosed by evaluating symptoms and

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On May 30, 1995, Great-West denied DuMond’s claim for LTD benefits,

stating that the current documentation did not support the diagnosis of CFS and that

there was no evidence that she could not return to work. Great-West invited DuMond

to submit additional objective medical information.

In June 1995, DuMond submitted reports from Dr. Heefner, Dr. Baumgartner,

two oral surgeons, and a psychotherapist, as well as the results of several laboratory

tests. Great-West again denied DuMond’s claim, stating that there was insufficient

evidence to support the diagnosis of total disability due to CFS. Because some of her

records indicated possible psychiatric problems, Great-West requested that DuMond

be examined by a psychiatrist. This examination ruled out any possible psychiatric

condition and concluded that DuMond could return to work from a psychiatric

standpoint. After reviewing the psychiatrist’s report, Great-West notified DuMond

that it was denying her claim because there was no support for her claim that she was

totally disabled. Great-West again invited DuMond to submit additional medical

information. Great-West also informed DuMond, in response to her inquiry, that her

medical records would have to fulfill the criteria identified by the Centers for Disease

Control (CDC) for a CFS diagnosis to obtain LTD coverage.

In December 1995, DuMond submitted additional medical information to

Great-West. This additional information included a letter from Dr. Eckerly

(December letter), which stated that DuMond was totally disabled from work from

February 1994 to September 1995.5 She stated that her initial diagnosis was CFS,

“which is a diagnosis of exclusion.”6 J.A. at 319. She then stated “[c]learly
eliminating other causes of fatigue. See 2 The Gale Encyclopedia of Medicine 713

(Donna Olendorf et al. eds., 1999); see also Reddick v. Chater, 157 F.3d 715, 726

(9th Cir. 1998). In the United States, doctors commonly refer to the CDC guidelines

in attempting to determine whether a patient has CFS. See The Gale Encyclopedia

of Medicine, supra, at 713. We note that Centex does not dispute that CFS is an

organic disease under the Plan; rather, Centex argues only that DuMond failed to

satisfy the CDC’s diagnostic criteria for CFS.

7Dr. Eckerly also stated DuMond’s other diagnoses included chronic

inflammation, fibromyalgia, hypothyroidism, adrenal insufficiency, magnesium

deficiency and arthralgia.

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[DuMond] does not have Chronic Fatigue Immune Deficiency Syndrome at this time,

and in retrospect, her fatigue was caused by immune suppression from a dental

source.” Id.7

 DuMond also included a letter from Dr. Heefner, the only other doctor

to conclude that DuMond suffered from CFS, which agreed with the assessment in

Dr. Eckerly’s December letter.

On February 21, 1996, Great-West again denied DuMond’s claim because the

medical evidence did not support a finding of total disability due to a medical

condition. Great-West also hired an independent medical review firm which

reviewed DuMond’s records and agreed with Great-West’s assessment.

In July 1996, DuMond appealed Great-West’s decision to Albright. Albright

submitted DuMond’s records to another independent medical review firm. This

anonymous, double-blind review was conducted by Dr. Myron Liebhaber, a physician

with a specialty in allergy/immunology. Dr. Liebhaber concluded that DuMond did

not have CFS because she did not meet the CDC criteria for diagnosing CFS. Based

on Dr. Liebhaber’s report and DuMond’s doctors’ reports, Albright denied

DuMond’s appeal.

DuMond filed this action in December 1996. DuMond, Centex and Great-West
8The parties contest the standard of review to be employed in evaluating

Albright’s decision. The district court reviewed Albright’s decision for an abuse of

discretion. See J.A. at 489-90 (Hearing). DuMond argues that this was error, and the

district court should have reviewed Albright’s decision de novo. Depending on the

degree of discretion granted to a plan administrator, the administrator’s decision may

be reviewed de novo or for an abuse of discretion. See Bounds v. Bell Atlantic

Enters. F.L.T.D. Plan, 32 F.3d 337, 339 (8th Cir. 1994) (citing Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)). We need not decide which standard

of review governs this case, however, as our conclusion would be the same under

either standard of review.

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submitted cross-motions for summary judgment based on a stipulated record. The

district court denied DuMond’s motion for summary judgment and granted Centex’s

and Great-West’s motions for summary judgment. DuMond filed a timely appeal.

II.

We review a grant of summary judgment de novo. See Aucutt v. Six Flags

Over Mid-Am., Inc., 85 F.3d 1311, 1315 (8th Cir. 1996). In reviewing a grant of

summary judgment, this Court views the record in the light most favorable to the nonmoving party to ensure there is no genuine issue of material fact and that the moving

party is entitled to summary judgment as a matter of law. Id.8

A.

Our inquiry on appeal concerns the final decision by Albright, the Plan

administrator, that DuMond was not eligible for LTD benefits. This Court generally

considers only the evidence that Albright had before him when he made his decision.

Cf. Brown v. Seitz Foods, Inc. Disability Benefit Plan, 140 F.3d 1198, 1200 (8th Cir.

1998) (absent good cause, district court should not ordinarily consider information

outside the record on de novo review to “ensure expeditious judicial review of ERISA

benefit decisions and to keep district courts from becoming substitute plan
9As for the other diagnoses listed in Dr. Eckerly’s December letter, we note that

DuMond does not claim that any of these were the organic disease from which she

suffered – she claims only that her disability was due to CFS. See Donato v.

Metropolitan Life Ins. Co., 19 F.3d 375, 382-83 (7th Cir. 1994) (ERISA does not

require plan administrator to assess an “alternative diagnosis to the one [] submitted

for benefits . . . much less to determine whether that alternative diagnosis constitutes

a total disability”).

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administrators” (quotations and citations omitted)).

In making his decision, Albright considered DuMond’s medical records and

Dr. Liebhaber’s report. DuMond claims that her medical records clearly support a

diagnosis of total disability due to CFS, and that this information directly conflicts

with the opinion of Dr. Liebhaber, who never examined DuMond. We disagree.

We conclude that DuMond’s own medical records do not support a diagnosis

of CFS. When DuMond initially applied for STD benefits, she submitted reports

from Drs. Eckerly and Heefner stating that she had CFS. However, a

contemporaneous report from Dr. Baumgartner listed DuMond’s diagnoses only as

Hypoglycemia and Hypothyroidism. The early reports from Dr. Eckerly also

speculated that the cause of DuMond’s symptoms were dental problems. Dr.

Eckerly’s suspicions were confirmed when DuMond later treated these problems and

subsequently recovered. Thus, Dr. Eckerly stated in her December letter that

DuMond’s fatigue was caused by immune suppression from a dental source, not by

CFS. Dr. Heefner, the only other doctor to diagnose DuMond with CFS, concurred

in Dr. Eckerly’s assessment. Thus, Albright was correct in determining, based on

DuMond’s medical evidence, that DuMond did not suffer from CFS.9

Albright’s conclusion that DuMond’s medical evidence does not establish

disability due to CFS is further supported by Dr. Liebhaber’s report. Dr. Liebhaber,

who has a specialty in allergy/immunology, evaluated all of DuMond’s records and
10Dr. Liebhaber also found that Dr. Eckerly’s other diagnoses were not

supported by DuMond’s medical records and were based on controversial medical

theories.

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compared them against the CDC criteria. His detailed evaluation concluded that

DuMond’s records did not support a CFS diagnosis under the CDC criteria.10

Although DuMond claims that we should give more weight to the treating physician

than a reviewing physician, this argument is unavailing as the records submitted by

DuMond’s doctors do not support a diagnosis of CFS. See Cruze v. Chater, 85 F.3d

1320, 1324-25 (8th Cir. 1996). Thus, having considered all the information available

to Albright, we conclude that DuMond’s records, combined with Dr. Liebhaber’s

report, support Albright’s decision to deny DuMond’s claim for LTD benefits under

the Plan.

B.

DuMond also argues that she did not receive a “full and fair review” as

required by ERISA and the Plan. ERISA’s notice provision requires that every

employee benefit plan provide adequate notice in writing of a claim denial and afford

a reasonable opportunity for a full and fair review of each denial. See 29 U.S.C. §

1133; 29 C.F.R. § 2560.503-1(f); see also Kinkead v. Southwestern Bell Corp.

Sickness and Accident Disability Benefit Plan, 111 F.3d 67, 68 (8th Cir. 1997). The

purpose of this requirement is to provide claimants with enough information to

prepare adequately for further administrative review or an appeal to the federal courts.

See Davidson v. Prudential Ins. Co. of Am., 953 F.2d 1093, 1096 (8th Cir. 1992).

DuMond first argues that Albright should have granted her a hearing on her

appeal, and that a failure to do so violated the full and fair review requirement.

However, neither the regulations governing claims procedures under ERISA nor the

terms of the Plan require a hearing. See 29 C.F.R. § 2560.503-1; J.A. at 147-50, 192-
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232. Therefore, DuMond was not entitled to one. See Brown v. Retirement Comm.

of the Briggs & Stratton Retirement Plan, 797 F.2d 521, 533-34 (7th Cir. 1986)

(section 1133 not violated when company failed to provide hearing and adopt written

rules or claims procedures; neither plan nor ERISA required such procedures);

Grossmuller v. Int’l Union, United Auto. Aerospace and Agric. Implement Workers

of Am., 715 F.2d 853, 858 n.5 (3d Cir. 1983) (full and fair review “does not

necessarily require a trial-like atmosphere . . . . The decision-maker need not hear

oral testimony; a written record will suffice.” (quotation marks and citations

omitted)).

We conclude that Centex provided DuMond with a full and fair review as

required by ERISA and the Plan. Albright independently considered DuMond’s

claims and submitted her records to an independent reviewing doctor. Albright then

informed DuMond by letter of the reasons for the denial, and attached Dr.

Liebhaber’s detailed report. Although Great-West is not a party on appeal, we also

note that Great-West fully and fairly reviewed DuMond’s claims. Great-West

reviewed DuMond’s claim three times, relying on both internal staff and an outside

medical review. Great-West informed DuMond each time of the reasons for the

decision, invited her to submit additional medical information, and informed her of

the criteria necessary to support a CFS diagnosis which would satisfy the Plan. Thus,

Centex complied with its obligation to provide a full and fair review. See Davidson,

953 F.2d at 1096 (full and fair review provided even though initial denial letters

“were cursory in nature” when plan administrator reviewed claim three times,

informed claimant each time of reason for denial, informed claimant he could seek

reconsideration of evidence, and provided final letter with detailed explanations of

reasons for denial); see also Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 382

(7th Cir. 1994) (“substantial compliance” with ERISA regulations governing full and

fair review will not upset plan administrator’s decision).
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III.

For the foregoing reasons, we affirm the decision of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.