UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1743

GENEESE MCKELDIN,

Plaintiff - Appellant,

versus

RELIANCE STANDARD LIFE INSURANCE COMPANY,

Defendant - Appellee.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. J. Frederick Motz, District Judge.

(1:05-cv-02563-JFM)

Submitted: September 17, 2007 Decided: October 17, 2007

Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and

Samuel G. WILSON, United States District Judge for the Western

District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

Eric Wexler, MCCHESNEY & DALE, P.C., Bowie, Maryland, for

Appellant. Joshua Bachrach, RAWLE & HENDERSON, L.L.P.,

Philadelphia, Pennsylvania, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Plaintiff Geneese McKeldin (McKeldin), a registered nurse, has

brought this civil action against Reliance Standard Life Insurance

Company (Reliance), claiming wrongful denial of long-term

disability benefits in violation of the Employee Retirement Income

Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. The

district court granted Reliance’s motion for summary judgment. We

affirm on the reasoning of the district court.

I.

Reliance is the insurer and claims review fiduciary of the

group long-term disability plan (the Plan) under which McKeldin is

seeking benefits as a plan participant. The parties agree the Plan

is governed by ERISA.

On January 4, 2001, McKeldin was hospitalized with complaints

of left calf pain and recurrent deep vein thrombosis (DVT), a

problem that McKeldin had experienced for approximately twenty

years. The hospital admission report also noted that McKeldin “has

a history of fibromyalgia and fatigue and has been on

antidepressants and anticipated work leave because of this.” (J.A.

776). 

At the time of McKeldin’s hospitalization, she worked for Marc

L. Chaiken, M.D., P.A., as a nurse manager, which position required

her to be able to stand for the entire eight-hour work day.
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Standing for this long caused McKeldin to suffer pain and swelling

in her left calf. Following her hospitalization, McKeldin did not

work for the next three months. In addition to her physical

ailments, McKeldin suffered from depression.

On April 3, 2001, McKeldin applied for long-term disability

benefits under the Plan’s total disability provision, claiming that

she was incapable of working due to DVT, as well as fibromyalgia

and chronic fatigue. Relevant to the present appeal, the Plan

provides long-term disability benefits when a claimant can

demonstrate total disability, defined as follows:

“Totally Disabled” and “Total Disability” mean, that as

a result of an Injury or Sickness:

(1) during the Elimination Period, an Insured

cannot perform each and every material duty of

his/her regular occupation; and

(2) for the first 36 months for which a Monthly

Benefit is payable, an Insured cannot perform the

material duties of his/her regular occupation;

(a) “Partially Disabled” and “Partial

Disability” mean that as a result of an

Injury or Sickness an Insured is capable

of performing the material duties of

his/her regular occupation on a part-time

basis or some of the material duties on a

full-time basis. An Insured who is

Partially Disabled will be considered

Totally Disabled, except during the

Elimination Period; and

(3) after a Monthly Benefit has been paid for 36

months, an Insured cannot perform each and every

material duty of any occupation. Any occupation is

one that the Insured’s education, training or

experience will reasonably allow.
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(J.A. 475).

Based upon the information submitted, Reliance approved

McKeldin’s application for long-term disability benefits and began

paying such benefits on April 5, 2001. Of relevance on appeal,

Reliance paid McKeldin long-term disability benefits for thirty-six

months. The record indicates that for a large portion of this

time, McKeldin worked two part-time jobs. One job required her to

administer flu shots to hospital employees. The other job required

her to perform victim sexual-assault examinations as a forensic

nurse. For both jobs, McKeldin stated that she could only work

three to four hours at a time and that each shift required her to

recuperate for between eighteen and thirty-six hours. 

Reliance notified McKeldin that she did not qualify for longterm disability benefits under the Plan beyond thirty-six months

because she could perform some material duties of occupations that

her education, training or experience would reasonably allow.

Reliance also asserted that benefits were properly discontinued

under a twenty-four month limitation on the receipt of long-term

disability benefits for total disability caused by or contributed

to by mental disorders.

After exhausting her administrative remedies, McKeldin

initiated this ERISA action, pursuant to 29 U.S.C. § 1132(a), to

challenge Reliance’s denial of her claim for long-term disability

benefits beyond thirty-six months. After Reliance moved for
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summary judgment, McKeldin moved to take discovery in addition to

the administrative record and moved for summary judgment herself.

The district court subsequently granted Reliance’s motion for

summary judgment, denied McKeldin’s motion for summary judgment,

and denied her motion to take additional discovery on the ground

that case law required that judicial review of Reliance’s claim

denial is limited to the administrative record.

In its Memorandum Opinion, the district court noted that

Reliance had asserted two independent bases for its decision to

deny McKeldin long-term disability benefits beyond thirty-six

months: (1) “that despite her disability she is capable of

performing some of the material duties of other suitable

occupations,” and (2) “that mental disorders have contributed to

her disability.” (J.A. 115). Because the district court ruled in

favor of Reliance with respect to the first basis, it expressly did

not address the second basis for its denial.

The crux of the district court’s analysis in ruling in favor

of Reliance is that when the phrase “each and every,” as found in

subparagraph three of the Plan’s definition of “Totally Disabled,”

is read in conjunction with the other definitions of “Totally

Disabled” in the two preceding subparagraphs, “it becomes

unmistakably clear that,” (J.A. 116), the phrase “each and every,”

as found in subparagraph three, means that an insured would be

considered totally disabled only if she was unable to perform all
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material duties of any occupation that the insured’s education,

training or experience will reasonably allow. In reaching this

holding, the district court relied heavily upon our decision in

Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264 (4th

Cir. 2002). In Gallagher, we read language materially

indistinguishable from subparagraph three’s definition of totally

disabled as unambiguously providing that an employee is totally

disabled if he is unable to perform all duties of his regular

occupation. Id. at 270.

The district court went on to hold that Reliance did not abuse

its discretion in applying this plain language reading of the Plan

to deny McKeldin long-term disability benefits beyond thirty-six

months. Specifically, the district court held that even putting

aside the physician’s report by Dr. William Hauptman favorable to

Reliance, which report McKeldin challenged as the biased report of

a hired gun, other evidence in the administrative record including

two other physician reports, the report of a vocational expert, and

the denial of McKeldin’s claim for disability benefits from the

Social Security Administration, provided a credible and proper

basis for Reliance’s conclusion that McKeldin was capable of

performing at least one of the material duties of a suitable

occupation. Notably, the district court expressly observed that

McKeldin never even attempted to refute the respective conclusions

of Drs. Robert Frieman and Scott Brown, the Social Security
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Administration, and the vocational expert that she was capable of

performing at least one of the material duties of a suitable

occupation.

McKeldin subsequently moved to amend the judgment on the basis

that the district court allegedly misread the relevant Plan

language. The district court denied the motion and this timely

appeal followed.

II.

We review the district court’s grant of summary judgment in

favor of Reliance de novo, applying the same standards as the

district court employed. Evans v. Metropolitan Life Ins. Co., 358

F.3d 307, 310 (4th Cir. 2004). Because the Plan gives Reliance

discretion to determine McKeldin’s eligibility for Plan benefits,

and since Reliance is also the Plan’s insurer, we review Reliance’s

decision to deny McKeldin long-term disability benefits beyond

thirty-six months under the modified abuse of discretion standard.

Id. at 311. Under the modified abuse of discretion standard, the

denial of benefits will be upheld if the decision is reasonable,

Carolina Care Plan Inc. v. McKenzie, 467 F.3d 383, 387 (4th Cir.

2006), and Reliance’s conflict of interest “must be weighed as a

factor in determining whether an abuse of discretion occurred.”

Evans, 358 F.3d 311.
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Moreover, when, as here, an ERISA plan vests discretion in the

decision-maker, who also insures the plan, reasonable exercise of

that discretion requires that the decision-maker/insurer “construe

plan ambiguities against the party who drafted the plan.” Carolina

Care Plan, Inc. v. McKenzie, 467 F.3d 383, 389 (4th Cir. 2006).

The automatic construction of ambiguous language against the

drafter is known as the doctrine of contra proferentem. Id. In

Carolina Care Plan, we carefully explained that application of the

doctrine of contra proferentem in the ERISA plan context does not

deprive a decision-maker/insurer of its discretion under an ERISA

plan. Id. Rather, we explained, when a decision-maker/insurer

“applies un ambiguous plan terms to the facts of a particular

claim, courts will defer to every judgment the [decisionmaker/insurer] makes that is supported by substantial evidence and

a reasoned decisionmaking process.” Id.

III.

The Plan’s definition of “Totally Disabled” is at the heart of

the dispute in this case. McKeldin argues that the language

stating “an Insured cannot perform each and every material duty of

any occupation” in subparagraph three of the Plan’s definition of

“Totally Disabled” is ambiguous, and therefore, should be construed

in her favor. Reliance defends the district court’s plain-language
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reading of the language at issue in subparagraph three by relying

on our decision in Gallagher, 305 F.3d at 270.

We hold the district court correctly determined that the

language stating “an Insured cannot perform each and every material

duty of any occupation” in subparagraph three of the Plan’s

definition of “Totally Disabled” unambiguously means that a Plan

participant does not qualify for long-term disability benefits

beyond thirty-six months unless such participant is unable to

perform all of the material duties of any occupation that such

participant’s education, training or experience will reasonably

allow. In so holding, we fully agree with the district court’s

plain-language analysis of the Plan language at issue. In the

words of the district court:

While partial disability is sufficient to establish

eligibility for receipt of total disability benefits

during the 36-month period, it does not suffice to

qualify an insured as “totally disabled” as defined in

subparagraph one for the Elimination Period. Thus, a

fortiori, the phrase “each and every,” at least as used

in subparagraph one, must mean that an insured who can

perform one or more of the material duties of her job,

but not all, is not “totally disabled.”

Because “it is logical to assume that the words were

intended to convey the same meaning both times they were

used,” the court adopts the same interpretation of “each

and every” for subparagraph three.

(J.A. 117-18) (internal quotation marks, citations, and alteration

marks omitted). In short, when the language at issue in

subparagraph three is read in context with the language of

subparagraphs one and two, the language at issue in subparagraph
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three is only reasonably susceptible of the district court’s

interpretation.

Reliance is also correct that our decision in Gallagher

supports the district court’s plain-language analysis. In

Gallagher, we read language identical to subparagraph three’s

definition of totally disabled as unambiguously providing that an

employee is totally disabled if he is unable to perform all the

duties of his regular occupation. Id. at 270. This reading is

wholly consistent with reading the “each and every material duty”

language of subparagraph three as unambiguously providing that in

order to qualify for long-term disability benefits beyond the

thirty-six month period, the plan participant applying for such

benefits must be unable to perform all of the material duties of

any occupation that such plan participant’s education, training or

experience will reasonably allow.

We also agree with the district court’s holding that even

putting aside Dr. Hauptman’s report favorable to Reliance, other

evidence in the administrative record including two other physician

reports, the report of a vocational expert, and the denial of

McKeldin’s claim for disability benefits from the Social Security

Administration, provided a credible and proper basis for Reliance’s

conclusion that McKeldin was capable of performing at least one of

the material duties of a suitable occupation. For example, the

record contains the assessment of a vocational expert who concluded
1Given our disposition, we do not reach Reliance’s alternative

argument that, even if the language at issue in subparagraph three

is ambiguous, it still wins because the Plan expressly gave it the

discretionary authority to resolve ambiguities in the Plan.

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that McKeldin could perform some of the material duties of various

occupations that matched her education and training, for example,

Holter Scanning Technician and Optometric Assistant, and that she

could perform all of the material duties of a Cardiac Monitor

Technician. Notably, McKeldin points us to nothing in the record

which contradicts these conclusions of the vocational expert

despite the fact that she bears the burden of proof. See

Gallagher, 305 F.3d at 270 (ERISA plan participant bears burden of

proof that he qualifies for long-term disability benefits).

In sum, because substantial evidence supports Reliance’s

denial of McKeldin’s claim for long-term disability benefits based

upon its straightforward application of the unambiguous terms of

the Plan, we affirm on the reasoning of the district court.1
2

Finally, we note that McKeldin argues the district court

committed reversible error by denying her request for discovery of

evidence of Reliance’s conduct in handling her claim that is not in

the claim file. She speculates that such evidence has the

potential to support her allegation that Reliance’s denial of her

claim for long-term disability benefits beyond thirty-six months

was simply the result of its conflict of interest. Her argument is

mooted by the fact that the district court’s analysis already took

into account Reliance’s conflict of interest as the Plan’s

decision-maker/insurer.

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We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and oral argument would not aid the decisional process.2

AFFIRMED