1

The Honorable Lawrence L. Piersol, United States District Judge for the

District of South Dakota, sitting by designation.

2

The Honorable Patrick J. Schiltz, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-1058

___________

Jerry B. Darvell, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Life Insurance Company of *

North America, *

* 

Appellee. * 

*

___________

Submitted: October 22, 2009

Filed: March 10, 2010

___________

Before COLLOTON and BENTON, Circuit Judges, and PIERSOL,1

 District Judge.

BENTON, Circuit Judge.

Jerry B. Darvell was denied long-term disability benefits by Life Insurance

Company of North America (“LINA”). The district court2

 granted LINA’s motion for

summary judgment, finding that it did not abuse its discretion in determining that he
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was not disabled. Darvell appeals. Having jurisdiction under 28 U.S.C. § 1291, this

court affirms.

I.

Beginning in May 2003, Darvell worked for Yellow Book USA, Inc., as an

account representative in the Duluth area. His job involved in-person calls to sell new

advertising, while carrying a book of advertising and account information that

weighed about 35 pounds. He claims he was disabled by three conditions: reflex

sympathetic dystrophy (a pain syndrome), osteoarthritis in both shoulders, and

depression. He asserts that these conditions prevented him from the driving, walking,

and carrying involved in his job. 

Darvell has a history of shoulder, arm, and hand pain stemming from a 1980 car

accident. He is under the care of Dr. Douglas Johnson, a family practitioner; Dr.

Raymond Hausch, a rheumatologist; and Dr. Thomas Kaiser, an orthopedic surgeon.

These doctors diagnosed Darvell with the three conditions that he bases his claim on.

In October 2004, Darvell’s symptoms got worse. He complained to both Dr.

Hausch and Dr. Kaiser of increased pain. He reported having trouble with pushing,

pulling, and lifting, and not being able to lift his right arm above shoulder level. He

also experienced crepitus (grinding and crackling) with the movement of his

shoulders. X-rays revealed progressive osteoarthritis in both shoulders, with the right

shoulder significantly worse than the left, as well as osteophyte formation in the right

shoulder joint.

Both Dr. Hausch and Dr. Kaiser restricted Darvell to sedentary work (lifting up

to ten pounds and occasional walking and standing). Dr. Hausch stated, “I do not see

any way [Darvell] can continue to do any work or sustain gainful employment given
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the amount of arthritis in his shoulder and also his reflex sympathetic dystrophy.. . .

I do believe this patient is disabled and is unable to sustain gainful employment.” Dr.

Kaiser noted that Darvell had “a major problem right now with depression and

anxiety.”

A few days later, Darvell saw Dr. Johnson, who said that “depression was

becoming a greater and greater part of his disability” and that he “should be on

disability due to depression.” Dr. Johnson prescribed an antidepressant.

For the next four months (through February 2005), Darvell’s doctors restricted

him to sedentary work. On February 9, Dr. Johnson said that each of his conditions

(RSD, osteoarthritis, and depression) was disabling, precluding gainful employment

of any kind. Dr. Johnson also noted that antidepressants had improved Darvell’s

symptoms of depression, alleviating any need to see a psychiatrist. A week later, after

a clinic visit, Dr. Johnson again noted that Darvell’s symptoms of depression were

improving. On March 4, according to Dr. Johnson, Darvell’s right shoulder was

“jelling much more” and he had a limited range of motion and increased pain with any

type of movement. At this point, Dr. Johnson decided to order Darvell to stop

working altogether. He authored a second letter on March 30 — essentially identical

to the February 9 letter — again opining that each of the three conditions was

disabling, that Darvell was unable to work as a result of each condition, and that he

did not believe that Darvell could ever return to work as an account executive.

Darvell’s other doctors agreed he was disabled and should not be working.

Darvell’s last day of work was March 3, 2005. He applied for and received

short-term disability benefits. Over the next nine months, his symptoms continued to

wax and wane, and his doctors adjusted his pain medications. At one point (in May

2005), Dr. Kaiser noted that Darvell “really just cannot use the arms at all at this
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point,” but this limitation was apparently due solely to pain, as Dr. Kaiser noted that

Darvell had “excellent motion in both of his shoulders . . . .” 

In June, according to Dr. Kaiser, Darvell was showing signs of radiculopathy,

as a neck x-ray showed “significant degenerative change” in one area of his vertebrae.

Later, however, Dr. Hausch noted that the x-ray appeared normal. Dr. Edward

Martinson (a physical-medicine rehabilitation specialist) recorded, in July, that there

were not “significant radicular type features to his pain” and, in October, that there

was “[n]o clinical evidence at this time to suggest a cervical

myelopathy/radiculopathy.”

On October 21, 2005, Dr. Johnson filled out a “physical ability assessment”

form indicating that, during an eight-hour work day, Darvell could:

• “continuously” lift up to ten pounds 

• “frequently” lift, carry, push, or pull up to 20 pounds

• “occasionally” lift and carry over 100 pounds 

• “frequently” sit, balance, stoop, kneel, crouch, and crawl

• “frequently” work around machinery 

• “occasionally” stand, reach, perform fine manipulations and simple and

firm grasping

• “occasionally” withstand exposure to temperature extremes, wet

conditions, and vibrations, and 

• “occasionally” work overtime. 

On the form, “continuously” is defined as more than 5.5 hours each day, “frequently”

as 2.5 to 5.5 hours, and “occasionally” as less than 2.5 hours. 

After Darvell’s short-term disability benefits expired in September 2005, he

applied for long-term benefits. LINA is the Plan insurer and claims administrator. The

Plan defines “disabled,” in relevant part, as:
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An Employee is Disabled if, because of Injury or Sickness,

1. he or she is unable to perform all the material duties of his or her

regular occupation, and solely due to Injury or Sickness, he or she is

unable to earn more than 80% of his or her Indexed Covered Earnings

from working in his or her regular occupation . . . .

The Plan gives LINA the discretion to interpret its provisions and to administer

benefits.

For plans subject to the Employee Retirement Income Security Act

(ERISA), the Plan Administrator of the Employer’s employee welfare

benefit plan (the Plan) has appointed the Insurance Company as the Plan

fiduciary under federal law for the review of claims for benefits provided

by this Policy and for deciding appeals of denied claims. In this role, the

Insurance Company shall have the authority, in its discretion, to interpret

the terms of the Plan documents, to decide questions of eligibility for

coverage or benefits under the Plan, and to make any related findings of

fact. All decisions made by the Insurance Company in this capacity shall

be final and binding on Participants and Beneficiaries of The Plan to the

full extent permitted by law.

On October 19, 2005, LINA denied Darvell’s claim for long-term benefits,

finding: (1) the symptoms were similar to those he had experienced for years; (2) there

was no documentation of a significant physical limitation, such as loss of range of

motion or strength in the shoulders; and (3) the medical data did not support that he

was unable to perform the material duties of his regular occupation, as defined by the

Department of Labor's Dictionary of Occupational Titles ("DOT"). Specifically, the

letter stated:

According to the Dictionary of Occupational Titles, your occupation was

an Account Executive. This occupation requires light physical demands,

which includes lifting, carrying, pushing, pulling 20 pounds

occasionally, frequently up to 10 pounds. It includes occasional

reaching, handling and fingering. It can include walking and/or standing

frequently even though weight is negligible. It can include pushing

and/or pulling of arm and/or leg controls.
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Darvell appealed to LINA and submitted more records, including Dr. Johnson’s

physical ability assessment of October 2005. LINA affirmed its denial. Darvell sued

in district court. The district court granted summary judgment for LINA, holding that

it did not abuse its discretion in denying Darvell’s claim. Darvell appeals, arguing

that (1) LINA abused its discretion in ignoring some medical evidence, and (2) LINA

abused its discretion by using the DOT description of Darvell’s occupation, rather

than a description of his actual job duties.

II.

 This court reviews de novo the District Court's grant of summary judgment.

Wakkinen v. UNUM Life Ins. Co. of America, 531 F.3d 575, 580 (8th Cir. 2008).

When an ERISA plan authorizes the claims administrator to determine eligibility for

benefits, this court reviews the administrator's eligibility determinations under an

abuse of discretion standard. Id. Under that standard, an administrator's decision is

upheld if it is reasonable, that is, supported by substantial evidence. Id. at 583.

Substantial evidence means "more than a scintilla but less than a preponderance." Id.

When the administrator is also the insurer, the administrator has a conflict of

interest that must be weighed in determining whether there is an abuse of discretion.

Metro Life Ins. Co. v. Glenn, 128 S.Ct. 2343, 2346 (2008). The weight given the

conflict depends on the circumstances of the particular case. Id. at 2351. Where an

insurer has a history of biased claims administration, the conflict may be given

substantial weight, but where the insurer has taken steps to reduce the risk that the

conflict will affect eligibility determinations, the conflict should be given much less

weight. Id. In Glenn, the record contained little evidence of the insurer’s efforts to

ensure that the conflict did not affect eligibility determinations. Id. The Supreme

Court held that, in light of the lack of evidence, the court of appeals properly gave the

conflict “weight to some degree,” but it was not determinative. Id. at 2351-52. As
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in Glenn, the record in this case contains little evidence about either LINA’s claims

administration history or its efforts to ensure that claims assessment is not affected by

the conflict. Thus, like the court of appeals in Glenn, this Court gives the conflict

some weight. 

A.

Darvell argues that LINA abused its discretion by rejecting the opinions of three

doctors that he was disabled. LINA counters that the only evidence in the record that

directly addresses his ability to perform job duties is the 2005 physical ability

assessment completed by Darvell's own physician, Dr. Johnson — which indicates

that he can perform the work of an "account executive" as defined by the DOT.

Darvell cites Torres v. UNUM Life Ins. Co. of America, 405 F.3d 670, 681 (8th

Cir. 2005), where this Court held that the plan administrator abused its discretion

when it ignored the only medical evidence in the record that was relevant to Torres's

ability to perform his occupation. Id. This is an abuse of discretion because it

"rendered plan language meaningless." Id. at 680-81.

Here, LINA did discount some medical evidence, but necessarily so as there

was conflicting medical evidence whether Darvell was disabled, and, the discounted

evidence was conclusory evidence that he was "disabled." It is not an abuse of an

ERISA plan administrator's discretion to ignore an opinion when the physician did not

"provide[] reliable objective evidence of testing or other proof to support the finding

of long term disability." McGee v. Reliance Standard Life Ins. Co., 360 F.3d 921,

924-25 (8th Cir. 2004). Similarly, LINA did not abuse its discretion in discounting

some medical evidence in this case.
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B.

Darvell asserts that LINA abused its discretion by using the DOT description

of Darvell’s occupation, rather than a description of his actual job duties. Under the

abuse of discretion standard, this court must defer to LINA's interpretation of the plan

so long as it is "reasonable," even if the court would interpret the language differently

as an original matter. King v. Hartford Life & Accident Ins. Co., 414 F.3d 994,

998-99 (8th Cir. 2005) (en banc). To determine reasonableness, courts apply the

five-factor test in Finley v. Special Agents Mutual Benefit Association, Inc., 957 F.2d

617 (8th Cir. 1992): (1) whether the administrator's language is contrary to the clear

language of the plan; (2) whether the interpretation conflicts with the substantive or

procedural requirements of ERISA; (3) whether the interpretation renders any

language in the plan meaningless or internally inconsistent; (4) whether the

interpretation is consistent with the goals of the plan; and (5) whether the

administrator has consistently followed the interpretation. Id. at 621. However,

“[t]he dispositive principle remains . . . that where plan fiduciaries have offered a

‘reasonable interpretation’ of disputed provisions, courts may not replace [it] with an

interpretation of their own – and therefore cannot disturb as an ‘abuse of discretion’

the challenged benefits determination.” King, 414 F.3d at 999 (citation omitted). 

Darvell is not entitled to long-term disability benefits unless "he... is unable to

perform all the material duties of his . . . regular occupation." The dispute centers on

this clear language of the plan (factor 1 of Finley). The Plan here does not define

"regular occupation." The phrase "material duties of his . . . regular occupation" can

be interpreted as referring to the duties that are commonly performed by those who

hold the same occupation as defined by the DOT (a "generic" approach), or the duties

that the specific claimant actually performed for his employer (a "claimant-specific"

approach). The circuits are split, under abuse of discretion review, on this issue.

Compare Schmidlkofer v. Directory Distrib. Assocs., Inc., 107 Fed. Appx. 631,

633-34 (6th Cir. 2004) (insurer reasonably interpreted "regular occupation" to mean
3

The parties try to draw inferences from Jones v. Mountaire Corp. Long Term

Disability Plan, 542 F.3d 234 (8th Cir. 2008). However, Mountaire simply does not

resolve this issue.

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the insured's occupation as it is performed in a typical work setting in the general

economy), with Bishop v. Long Term Disability Income Plan of SAP Am., Inc., 232

Fed. Appx. 792, 794-95 (10th Cir. 2007) (insurer was required to consider claimant's

actual job duties in determining the "essential duties" of his occupation) and Lasser

v. Reliance Standard Life Ins. Co., 344 F.3d 381, 385-86 (3d Cir. 2003)

(unambiguous meaning of "regular occupation" is the usual work that the employee

is actually performing immediately before the onset of disability). This court has not

decided this issue.3

Based on King, this Court defers to LINA's interpretation of the disputed

phrase, because it is reasonable to apply the DOT description in this case. The phrase

"material duties of his . . . regular occupation" can be interpreted to refer to Darvell's

generic occupation, rather than his specific position. See Osborne v. Hartford Life

and Accident Ins. Co., 465 F.3d 296, 299 (6th Cir. 2007) (In a case where the plan

administrator has discretion to interpret plan terms, “‘Occupation’ is a more general

term that seemingly refers to categories of work than narrower employment terms like

‘position,’ ‘job,’ or ‘work,’ which are more related to a particular employee's

individual duties.”). The Plan gives LINA the discretion to interpret Plan provisions,

and its interpretation of “material duties of his . . . regular occupation” is not contrary

to clear language of the Plan. Here, according to a Yellow Book job description in the

record, (A.R. 463-64), an account executive needs to carry ten pounds occasionally

and is not required to stand or walk for prolonged periods. Thus, the DOT description

of the occupation is largely consistent with evidence of the duties that Darvell actually

performed for Yellow Book. Because Darvell does not claim that any of the other

four Finley factors indicate unreasonableness, and because he does not show it was

unreasonable to apply the DOT description in this case, LINA did not abuse its

discretion in denying his claims. 
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III.

The judgment of the district court is affirmed.

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