IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30997

AMANDA C. FOSTER, 

 Plaintiff - Appellant

v.

PRINCIPAL LIFE INSURANCE COMPANY, 

 Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

Amanda Foster worked as an attorney in New Orleans before—by her 

account—intractable migraines made her stop working. She applied for 

disability benefits through her law firm’s insurer, Principal Life Insurance 

Company (“Principal”). After multiple reviews by various doctors, Principal 

denied her claim, concluding she was not disabled within the meaning of the 

policy. Foster sued, arguing that Principal abused its discretion by denying her 

benefits. The district court ruled for Principal. We affirm. 

I.

Foster was a healthcare attorney at the New Orleans law firm Sullivan, 

Stolier & Knight (“Sullivan”). She began working at the firm in November 2005

United States Court of Appeals

Fifth Circuit

FILED

April 4, 2019

Lyle W. Cayce

Clerk

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and described her duties as “review and draft leases and agreements; research 

and advise clients regarding government laws and regulations; represent 

clients in administrative appeals; [and] draft compliance plans.” On March 8, 

2013, Foster decreased her work hours to part-time capacity, allegedly due to 

intractable headaches, and she subsequently took complete disability leave on

July 1, 2013.

Sullivan has a group benefits plan (“Group Policy” or “policy”) issued by 

Principal, which, as relevant here, provides employees with long term 

disability benefits (“LTD”).1 It is undisputed that Foster’s claims under the 

policy are governed by the Employee Retirement Income Security Act of 1974 

(“ERISA”), 29 U.S.C. § 1001 et seq. See, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 

U.S. 41 (1987). It is also undisputed that the policy confers on Principal the 

discretion to construe the policy provisions and determine eligibility, meaning 

that Principal is both the insurer and the plan administrator. 

With respect to LTD, the policy states that a member is “disabled” if she

“cannot perform one or more of the substantial and material duties of his or 

her Own Occupation.” “Substantial and material duties” are “essential tasks 

generally required by employers from those engaged in a particular occupation 

that cannot be modified or omitted.” The policy defines “Own Occupation” for 

attorneys as “[t]he specialty in the practice of law the Member is routinely 

performing for the Policyholder when his or her Disability begins.”

 

1 The policy provides another benefit via its life insurance coverage—known as 

“Coverage During Disability”—which entitles employees to a waiver of premiums during a 

period of total disability (known as a “LWOP”). LWOP has different eligibility requirements

from LTD: LWOP requires inability to perform the duties of any occupation, whereas LTD 

requires only an inability to perform any of the material and substantial job duties of one’s 

own occupation. Foster unsuccessfully claimed entitlement to this LWOP benefit in the 

district court, but she has not appealed the district court’s determination that Principal did 

not abuse its discretion in denying LWOP. 

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On July 8, 2013, Foster filed a claim for LTD under the policy, alleging 

she was “unable to practice law due to the pain of headaches as of March 8, 

2013.” An accompanying neurologist’s statement (from Dr. Mohnot) described 

Foster’s subjective symptoms as “intractable migraines,” and reported March 

8, 2013 as the date she was “advised . . . to stop working.” Principal received 

Foster’s medical records throughout August 2013, including records of her 

psychotherapy with Dr. Phyllis Shnaider. Principal then requested a review of 

the medical records by an internal medical consultant. Principal provisionally 

approved Foster’s claim (after completion of a mandatory 180-day elimination 

period) from September 4, 2013 to December 9, 2013, based on the information 

it had at the time, while informing Foster it would need additional information. 

On November 4, 2013, Principal requested surveillance on Foster, which 

showed her performing routine tasks like shopping and picking up children. It 

also requested updated medical records. Initially, two doctors (Dr. Ethel 

Condon and Dr. Pranathi Kondapaneni) provided Principal with reports 

reviewing those records. Dr. Condon’s report stated that Foster’s “chronic 

headaches and intractable migraines” would not allow her “consistent full time 

employment” for “sedentary work.” Similarly, Dr. Kondapaneni’s report 

confirmed that Foster was experiencing daily migraines that resulted in her 

“functional impairment,” limiting her to part-time work to avoid continuous 

“work-place stress and light exposure.” 

Principal also hired two additional physicians, Dr. Sydney Kroll Register

(a psychologist) and Dr. David Hoenig (a neurologist), to review Foster’s file. 

For her part, Dr. Register concluded from a review of the medical records that 

“[t]here is no indication of functionally impairing psychological symptoms,” 

and she noted “generally mild psychological symptoms consistently across 

time.” She also concluded that “[n]o limitations are supported” that would 

result in Foster’s “total inability to perform any type of occupation.” For his 

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part, Dr. Hoenig concluded that Foster’s “objective neurological exam is 

consistently normal,” as well as her MRI and EEG. He also concluded that, 

whereas her headaches were “subjectively affecting her functionality,” her 

records showed “no objective/clinical evidence which demonstrates that Mrs. 

Foster is functionally impaired,” given that she “exhibits no deficits on 

examination and her neurological workup is normal, [and] . . . she is seen on 

video surveillance to be functional.” Additionally, Dr. Hoenig specifically 

disagreed with the previous recommendation of Foster’s neurologist that she 

not work: “Based on the documentation provided, . . . the recommendation that 

[Foster] not work is not reasonable and is not medically supported,” given that 

“[t]here is no clinical evidence that demonstrates that Ms. Foster is 

functionally impaired.” Dr. Hoenig therefore concluded that “Ms. Foster has 

capabilities to perform work activities on a full-time basis, in a sedentary 

capacity.” 

Principal terminated Foster’s LTD benefits on December 18, 2014, 

effective December 9, 2014. In relevant part, Principal’s denial letter stated 

that a report from her reviewing psychologist “indicated that no limitations or 

functional impairment were supported from a psychological perspective.” The 

letter also stated that her “objective neurological exam was consistently 

normal,” as were her MRI and EEG, and that, despite her complaints of 

headaches, “there was no objective/clinical evidence which demonstrated [she] 

w[as] functionally impaired.” In other words, Foster’s “subjective complaints 

did not correlate with objective findings” and her “reported functional and daily 

activity level was not consistent with the severity of the complaints [she] 

reported.” Principal additionally relied on the fact that Foster was “seen on 

video surveillance to be functional and apparently without activity limitation.” 

Finally, Principal noted that Foster’s “monthly online blog posts” reflected an 

“undiminished ability to write, focus, and concentrate as would also be 

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required in [her] occupation.” In sum, Principal concluded that, “[o]n the basis 

of these [psychological and neurological] reviews, we have determined that 

there is no objective medical or psychological evidence supporting an ongoing 

claim of Disability as it is defined in the policy.”

On April 28, 2015, Foster submitted her mandatory appeal to Principal.2 

Foster attached letters from her treating physician Dr. Mohnot, an 

independent medical examination (IME) by Dr. Shelly Savant, an affidavit by 

founding partner Jack Stolier attesting to Foster’s struggles with her 

headaches and her inability to work as an attorney, and additional medical 

records detailing Foster’s continued struggle with migraines.

On July 24, 2015, Principal denied Foster’s mandatory appeal. As part 

of this review, Principal relied on the opinions of two more doctors, Dr. Daniel 

Harrop (a psychiatrist) and Dr. Norman Miller (a psychiatrist and neurologist).

While not commenting on neurological issues, which were beyond his expertise, 

Dr. Harrop concluded that Foster was “not disabled for psychiatric reasons”; 

that “the psychiatric restrictions suggested by the attending clinicians . . . are 

not supported by clinical findings or diagnostic evidence or the clinical records 

on file”; that her “[m]emory, cognition, and concentration are not demonstrated 

by mental status examinations to be impaired”; and finally that “[t]he medical 

documentation does not support that there are restrictions and limitations 

which would render [Foster] unable to perform the occupation she regularly 

performs[.]” Harrop listed the essential duties of an attorney in his summary 

of the record in his report.

The second reviewer, Dr. Miller, diagnosed Foster with “opioid 

dependence,” “opioid induced mood disorder,” and “opioid induced hypalgesia 

 

2 In accordance with ERISA regulations, the plan required Foster to file (and Principal 

to consider) one mandatory appeal.

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and somatoform disorder.” Dr. Miller was the only reviewing physician to 

suggest these diagnoses. In his report, Dr. Miller explained that “[h]ydrocodone 

causes pain, particularly headache pain and her pain will be significantly 

reduced and the frequency of her headaches, the severity of her headaches, the 

nature of her headaches all will improve once she no long is prescribed and 

uses hydrocodone.” As to Foster’s functional impairment, Dr. Miller concluded

that “Ms. Foster is otherwise capable of full-time sedentary work” and “she 

should discontinue under medical supervision hydrocodone and Ativan as 

these medications increase pain and anxiety and depression.” While not listing 

or discussing any specific duties of an attorney, Miller mentioned those duties 

in his summary of the record.

Following Principal’s denial of Foster’s mandatory appeal, Foster filed a 

second, voluntary appeal in which she submitted, among other materials, 

responsive opinions by independent examiner Dr. Shelly Savant, and Foster’s 

treating physician Dr. Mohnot, who has treated Foster for migraines since 

2008. Dr. Savant vigorously disputed Dr. Miller’s diagnoses as incorrect.

After receiving Foster’s second appeal, Principal requested additional

headache logs from Foster and scheduled an independent neuropsychological

examination (INE) with Dr. Michael Chafetz, a psychologist. On December 2, 

2015, Dr. Chafetz administered a battery of cognitive function tests, reviewed 

her records, and conducted a clinical interview. His extensive report observes, 

among other findings, that various physicians have disagreed “as to the origin 

and status of [Foster’s] headaches,” but that physicians have generally ignored 

her psychological history. Furthermore, Dr. Chafetz observed that Foster “is 

claiming that her pain condition, which for the most part is moderate, creates 

an extremely high level of functional restrictions, which is unusual.” As a 

result, he concluded that Foster “would have no limitations on more complex 

legal tasks if these did not involve much oversight and responsibility.” He also 

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forecast that Foster would “demonstrate the same psychological pattern in the 

future, developing headaches when faced with responsibilities and tasks that 

take her away from the things that she would truly enjoy, such as her writing 

career.” However, Dr. Chafetz concluded that “[t]here is no real evidence of 

psychologically or neuropsychologically based impairment in [Foster’s] ability 

to carry out tasks.”

On December 21, 2015, Principal upheld its previous determination that 

Foster was not disabled within the meaning of the LTD provisions of the policy, 

based in part on Dr. Chafetz’s independent evaluation. The denial letter 

concluded that Foster was “capable of full-time sedentary work and . . . is able 

to function at the level needed as an attorney on a regular basis.”

On February 12, 2016, Foster filed the instant lawsuit in federal district 

court seeking both LTD and LWOP benefits under the policy pursuant to 29 

U.S.C. § 1132(a)(1)(B). The parties eventually filed cross-motions for judgment 

on the administrative record. On November 21, 2017, the district court 

rendered judgment for Principal and against Foster, concluding that Principal 

did not abuse its discretion when denying Foster’s claim for benefits. Foster 

filed a notice of appeal on December 21, 2017. She moved for reconsideration 

in the district court under Federal Rule of Civil Procedure 59(e) on December 

19, 2017, attempting to introduce additional medical evidence. The district 

court denied Foster’s motion for reconsideration in a memorandum opinion on 

March 19, 2018.

II.

“Where a benefits plan ‘gives the administrator or fiduciary discretionary 

authority to determine eligibility for benefits or to construe the terms of the 

plan,’ . . . the reviewing court applies an abuse of discretion standard to the 

plan administrator’s decision to deny benefits.” Anderson v. Cytec Indus., Inc., 

619 F.3d 505, 511–12 (5th Cir. 2010) (quoting Firestone Tire & Rubber Co. v. 

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Bruch, 489 U.S. 101, 115 (1989)). Here, the parties do not dispute that the 

policy vested such discretion with Principal. This court reviews de novo the 

district court’s conclusion that an ERISA plan administrator did not abuse its 

discretion in denying benefits. Crowell v. Shell Oil Co., 541 F.3d 295, 312 (5th 

Cir. 2008); Corry v. Liberty Life Assurance Co. of Bos., 499 F.3d 389, 397 (5th 

Cir. 2007). In doing so, we review the plan administrator’s decision from the 

same perspective as the district court. Meditrust Fin. Servs. Corp. v. Sterling 

Chems., Inc., 168 F.3d 211, 214 (5th Cir. 1999).

“Under the abuse of discretion standard, ‘[i]f the plan fiduciary’s decision 

is supported by substantial evidence and is not arbitrary and capricious, it 

must prevail.’” Corry, 499 F.3d at 397–98 (quoting Ellis v. Liberty Life 

Assurance Co. of Bos., 394 F.3d 262, 273 (5th Cir. 2004)). Even if an ERISA 

plaintiff “support[s] his claim with substantial evidence, or even with a 

preponderance,” he will not prevail for that reason. Ellis, 394 F.3d at 273. 

Rather, it is the plan administrator’s decision that must be supported by 

substantial evidence, and, if it is, the administrator’s decision “must prevail.” 

Id. “Substantial evidence is more than a scintilla, less than a preponderance, 

and is such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Anderson, 619 F.3d at 512 (quotation marks omitted). 

“‘A decision is arbitrary only if made without a rational connection between the 

known facts and the decision or between the found facts and the evidence.’”

Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246–47 (5th Cir. 2009)

(quoting Meditrust Fin. Servs., 168 F.3d at 214). “Our ‘review of the 

administrator’s decision need not be particularly complex or technical; it need 

only assure that the administrator’s decision fall[s] somewhere on a continuum 

of reasonableness—even if on the low end.’” Id. (quoting Corry, 499 F.3d at 

398).

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Finally, the existence of a structural conflict of interest—when the plan 

administrator “both evaluates claims for benefits and pays benefits claims,” 

Truitt v. Unum Life Ins. Co. of Am., 729 F.3d 497, 508 (5th Cir. 2013) (quotation 

marks omitted)—“is ‘but one factor among many that a reviewing judge must 

take into account’” in assessing whether the administrator abused its 

discretion. Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 138 (5th Cir. 

2016) (quoting Holland, 576 F.3d at 248); accord Metro. Life Ins. Co. v. Glenn, 

554 U.S. 105, 116 (2008). The weight a conflict has relative to other factors 

“changes . . . depending upon the circumstances of a particular case.” 

Schexnayder v. Hartford Life & Accident Ins. Co., 600 F.3d 465, 470 (5th Cir. 

2010) (quotation marks omitted).

III.

Foster’s first argument on appeal is that Principal abused its discretion 

when terminating her LTD benefits because it failed to analyze her disabling 

condition in light of her actual job duties as an attorney. The policy Principal 

issued to Sullivan states that a member will be considered “[d]isabled” if,

“because of sickness, injury, or pregnancy,” “[t]he Member cannot perform one 

or more of the Substantial and Material Duties of his or her Own Occupation . 

. . .” (emphasis added). Foster contends that the doctors on whose reports 

Principal relied were never asked to evaluate her disability in light of her 

specific duties as a healthcare attorney, and that, instead, they evaluated her 

disability only in light of the less specific standard of whether she could 

perform “full-time sedentary work.” Consequently, these doctors did not 

provide any meaningful analysis of whether Foster’s intractable migraines 

would prevent her from performing the specific duties of a healthcare 

attorney—e.g., “meeting deadlines, handling stress, unpredictability of 

absences, . . . prolonged computer use, prolonged light exposure, [and the] 

intellectual challenges of handling complex situations.” Relying on those 

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doctors’ opinions, argues Foster, constituted an abuse of discretion because 

Principal could not have rationally determined from them that Foster was, in 

fact, unable to “perform one or more of the material and substantial duties 

of . . . her Own Occupation,” as the policy demands.

Our court has not squarely addressed the issue presented here—namely, 

whether an ERISA plan administrator abuses its discretion by denying 

benefits under an “Own Occupation” clause based on reports couched only in 

terms of a claimant’s ability to work at “a full-time sedentary position.” Several

sister circuit decisions suggest that non-specific statements of this nature are 

inadequate to support a benefits denial under an “Own Occupation” clause. 

See, e.g., McDonough v. Aetna Life Ins. Co., 783 F.3d 374, 379–82 (1st Cir. 2015)

(deeming inadequate “passing references” in medical reviews to “the 

appellant’s ‘own occupation’ or ‘own sedentary level occupation’” when 

“unaccompanied by any attempt to articulate the material duties of the 

appellant’s own occupation”); Elliott v. Metro. Life Ins. Co., 473 F.3d 613, 619–

20 (6th Cir. 2006) (finding inadequate a report’s use of “sedentary work,” 

because “the proper inquiry is whether [claimant] could perform her own 

occupation”); Miller v. Am. Airlines, Inc., 632 F.3d 837, 854–55 (3rd Cir. 2011); 

Kalish v. Liberty Mut./Liberty Life Assur. Co. of Bos., 419 F.3d 501, 507 (6th 

Cir. 2005) (“[T]he fact that [claimant] might be capable of sedentary work 

cannot be a rational basis for finding that he was not disabled, given that his 

former occupation required him to walk, stand, and reach for several hours a 

day.”); Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 253 (2nd 

Cir. 1999). We have expressed support for this proposition, albeit in an 

unpublished opinion. See, e.g., Burtch v. Hartford Life & Acc. Ins. Co., 314 F. 

App’x 750, 755–56 (5th Cir. 2009) (rejecting argument that insurer erred by 

using “sedentary job” criteria to deny benefits, because insurer “considered the 

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[claimant’s] actual [job] duties” under the policy’s “own occupation” standard).3

We assume without deciding that our sister circuits are correct. Even under 

the standard adopted by those circuits, we conclude that Principal’s

termination of Foster’s benefits should be upheld.

We evaluate Foster’s argument in view of the light burden that Principal 

bears: Principal must support its decision only with “substantial evidence” and, 

if the decision “is not arbitrary and capricious, it must prevail.” Corry, 499 F.3d 

at 397–98 (quoting Ellis, 394 F.3d at 273) (emphasis added). Here, there is 

substantial evidence showing that at least one of the physicians—Dr. 

Chafetz—considered Foster’s disability in light of the specific duties required 

by her occupation as an attorney. Principal asked Foster for a description of 

her job duties and then provided to all reviewing physicians the documents she 

gave them. The reports Principal relied upon described not only “physical,” but 

also on the “non-exertional or cognitive” demands on Foster—such as her 

“ability to write, focus, and concentrate,” her “memory, cognition, and 

concentration,” and her ability to complete tasks such as “driving, shopping, 

and picking up her kids.” Most importantly, Dr. Chafetz was asked to (and did) 

assess a range of non-exertional, cognitive skills. He concluded that “according 

to [his] psychological findings, [Foster] would appear to have no limitations on 

more complex legal tasks if these did not involve much oversight and 

responsibility.” To be sure, Foster adduced evidence of her own suggesting that 

 

3 We also addressed an “own occupation” clause in Robinson v. Aetna Life Ins. Co., 443 

F.3d 389 (5th Cir. 2006). The parties agreed that the clause required assessment of a 

claimant’s disability in terms of the “‘essential tasks’ generally required of employees in the 

occupation.” Id. at 395. We reversed the insurer’s benefits denial purely on evidentiary 

grounds—namely, because the insurer’s “finding that driving is not a material duty” of a 

sales representative was “not supported by concrete evidence in the administrative record.” 

Id. at 396. Consequently, we had no occasion in Robinson to address whether an insurer’s 

generic assessment that a claimant could perform “sedentary” work is sufficient to support a 

benefits denial under an “own occupation” clause.

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her headaches rendered her unable to perform as an attorney. But that does 

not entitle her to prevail under the substantial evidence standard. See, e.g., 

Ellis, 394 F.3d at 273 (even if an ERISA plaintiff “support[s] his claim with 

substantial evidence, or even with a preponderance,” he will not prevail for 

that reason). Accordingly, we find that Principal marshaled enough evidence 

to satisfy its burden, and Principal did not abuse its discretion on this ground. 

IV.

Foster’s second argument on appeal is that Principal wrongly denied 

benefits based on a lack of “objective or clinical evidence” of her migraines, 

when in fact migraines (like other conditions) are not susceptible to objective 

verification but must instead be verified by subjective evidence—which she 

claims the record shows without dispute. According to Foster, by requiring nonexistent evidence from Foster, Principal abused its discretion. Yet, as Principal 

correctly points out, Foster’s argument fails to make a critical distinction: 

Although the existence of a disability like migraines may not be denied based 

on impossible-to-obtain objective evidence, that is not true of one’s inability to 

work as a result of migraines.

An administrator may rely on an absence of objective evidence of the latter

(inability to work) as a basis for finding lack of disability and denying benefits. 

Indeed, one of the circuit opinions Foster cites—an unpublished Eleventh

Circuit decision—makes precisely this distinction. See Creel v. Wachovia Corp., 

2009 WL 179584, at *8–9 (11th Cir. Jan. 27, 2009) (unpublished) (explaining 

that, “[e]ven for subjective conditions like migraines, it is reasonable to expect 

objective medical evidence of an inability to work” (citing Boardman v. 

Prudential Ins. Co. of Am., 337 F.3d 9, 16 n.5 (1st Cir. 2003))). Our court has 

relied on this principle in a case involving a denial of a disability claim based 

on PTSD. In Anderson v. Cytec Industries, we held that a claims administrator 

“did not abuse its discretion by relying on the independent experts’ opinion 

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that [the claimant] had not offered objective clinical proof showing the 

functional effect of his PTSD”—and this was true even when those experts 

“took into consideration [the claimant’s] subjective complaints and the 

conclusions of his doctors.” 619 F.3d 505, 513 (5th Cir. 2010). And we did not 

stop there:

A plan administrator does not abuse its discretion by making a 

reasonable request for some objective verification of the functional 

limitations imposed by a medical or psychological condition, 

especially when the effects of that condition are not readily 

ascertainable from treatment and therapy notes—as in this case and 

analogous cases involving, for example, chronic fatigue 

syndrome. . . . Without some objective measurement of [the 

claimant’s] functional limitations, [the administrator] had no way to 

determine whether his concentration was impaired to the point that 

he could not perform his job[.]

Id. at 514 (citing Williams v. Aetna Life Ins. Co., 509 F.3d 317, 322 (7th Cir. 

2007); Boardman, 337 F.3d at 16–17 n.5).

We need look no further than our decision in Anderson, and the 

authorities it relies on, to decide this issue. As the district court correctly 

determined, Principal relied on expert reports assessing—not whether Foster 

subjectively experienced migraines—but instead whether and to what extent 

those migraines “functionally” impaired Foster in her work.

To the extent Foster criticizes Principal for relying on its experts rather 

than her treating physicians, our cases also reject this argument. Principal was 

required to base its decision on “substantial evidence,” and it is immaterial 

whether Foster herself adduced substantial evidence (or even a preponderance 

of evidence) to support her view of the severity of her impairment. See Corry, 

499 F.3d at 397–98; Ellis, 394 F.3d at 273. Furthermore, we have recognized 

that a claims administrator is not required to accept the opinions of a 

claimant’s treating physicians regarding the severity of the claimant’s 

condition. See, e.g., Anderson, 619 F.3d at 513 (explaining “the experts here 

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were not required to accept the opinion of [the claimant’s] treating physician 

that his symptoms rendered him incapable of performing his job”); Corry, 499 

F.3d at 401 (“[T]he administrator, under the established standard of review 

that restricts the courts, was not obliged to accept the opinion of [the 

claimant’s] physicians. In this ‘battle of the experts’ the administrator is vested 

with discretion to choose one side over the other.”).

At bottom, we see no abuse of discretion in Principal’s reliance on its own 

treating physicians’ reports detailing an absence of Foster’s functional 

impairments.4 Furthermore, although Principal has a “structural” conflict of 

interest in that it both evaluates and pays claims, see, e.g., Truitt, 729 F.3d at

508, we accord this factor little weight in view of the extensive investigation 

Principal undertook. We therefore conclude that Principal’s benefits denial 

was supported by substantial evidence. 

AFFIRMED

 

4 In light of this conclusion, we need not address Principal’s alternative argument 

that—should we conclude Foster’s condition is disabling—Foster’s claim is “capped by the 

Group Policy’s mental health condition limitation provision,” limiting benefits to a 24-month 

period.

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