United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2389

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Nancy Kecso,

Appellee,

v.

Meredith Corporation,

Appellant.

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Appeal from the United States

District Court for the 

Southern District of Iowa.

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Submitted: November 16, 2006

 Filed: March 27, 2007

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Before BYE, BOWMAN and GRUENDER, Circuit Judges. 

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GRUENDER, Circuit Judge. 

Nancy Kecso sued her employer, Meredith Corporation, seeking to overturn

Meredith’s decision to discontinue the long-term disability benefits that she had been

receiving after being diagnosed with a brain tumor. On cross-motions for summary

judgment, the district court denied Meredith’s summary judgment motion but granted

Kecso’s and subsequently awarded her a money judgment. Meredith appeals, and we

reverse.
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I. BACKGROUND

Kecso began working for Meredith in 2001. In November 2002, Kecso suffered

a seizure and was hospitalized. Scans taken that day revealed that Kecso had a tumor

in her brain above her pituitary gland. In January 2003, doctors at the Mayo Clinic

diagnosed the tumor as a benign astrocytoma. They recommended no treatment other

than anti-seizure medication. Since her seizure, Kecso has had recurrent headaches,

body aches and fatigue.

After the seizure, Kecso returned to work for a brief period in December 2002.

Meredith subsequently granted Kecso leave under the Family Medical Leave Act. In

February 2003, Kecso began receiving short-term disability benefits and then longterm disability (“LTD”) benefits beginning in June 2003. The record is silent as to

whether Meredith expressly determined that Kecso qualified for LTD benefits under

its disability plan or whether Meredith simply decided to pay Kecso LTD benefits

while attempting to ascertain her eligibility for them. Meredith both insures and

administers its disability benefits plan, which is subject to the Employee Retirement

Income Security Act (“ERISA”). Under the plan, Meredith has discretion to interpret

the terms of the plan and to determine eligibility for benefits. 

Kecso regularly saw a neurologist, Dr. David Friedgood, beginning in late

2002. In early December 2002, Dr. Friedgood certified to Meredith that Kecso’s only

medical restriction was “no driving.” Later that month, Dr. Friedgood released Kecso

to work without restrictions beginning in January of 2003, again noting only that she

was not to drive. In March, May, August, October and December of 2003,

Dr. Friedgood certified to Meredith that Kecso had no medical restrictions. However,

in February 2004, he certified that “[Kecso] is limited by her affective and cognitive

response to her brain tumor. She finds it difficult to function and can not work

because of these symptoms.” In addition to her visits with Dr. Friedgood, Kecso

began seeing a psychiatrist in August 2003. The psychiatrist diagnosed Kecso with
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depression and anxiety and prescribed medication and therapy sessions with Dianne

Walsh, a licensed independent social worker. 

Under Meredith’s disability benefits plan, participants are required to provide

all information that Meredith considers to be relevant to its disability determination

on a continuing basis in order for the participants to maintain eligibility for benefits.

Despite having signed an authorization to release all of her medical records to

Meredith, Kecso balked at the release of notes related to her psychiatric and

psychotherapy visits, ultimately refusing to release the notes of her psychotherapy

sessions. Because Meredith believed that those notes were relevant and might explain

inconsistencies in Kecso’s other medical records, Meredith suspended Kecso’s LTD

benefits in February 2004. In March 2004, Kecso wrote to Meredith objecting to the

suspension, and Meredith treated her letter as an administrative appeal under the plan.

From February through June 2004, while Kecso’s administrative appeal was

pending, the parties argued about the relevance of Kecso’s mental health records to

her eligibility for LTD benefits under the plan. Kecso insisted that they were

irrelevant to her disability status, and Meredith sought to review them in an effort to

reconcile inconsistencies in Kecso’s other medical records, particularly with respect

to Dr. Friedgood’s inconsistent opinions regarding Kecso’s ability to work and

whether her tumor was causing her headaches and fatigue. Ultimately, the parties

agreed that Meredith would evaluate Kecso’s eligibility for LTD benefits without

considering Kecso’s mental health. In March 2004, in the course of these discussions,

Kecso requested a complete copy of her claim file. Meredith enclosed a copy of her

claim file with its June 18, 2004 letter to Kecso’s attorney informing him of

Meredith’s determination that Kecso was not disabled within the meaning of the plan.

Kecso sought review in district court, where the parties filed cross-motions for

summary judgment. The district court granted Kecso’s motion and denied Meredith’s,

finding that Meredith’s decision was not entitled to review under the plan’s abuse of
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discretion standard and that the evidence, when viewed on a standard “approaching

de novo review,” established that Meredith wrongfully denied Kecso’s claim for LTD

benefits. The district court subsequently awarded a judgment of $42,398.00 to Kecso,

representing unpaid benefits through the date of the district court’s judgment and

prejudgment interest. Meredith appeals the district court’s summary judgment rulings.

II. DISCUSSION

A. Standard of Review

We review an appeal from a grant of summary judgment de novo, viewing the

evidence in a light most favorable to the nonmoving party. Woo v. Deluxe Corp., 144

F.3d 1157, 1160 (8th Cir. 1998). Where, as here, an ERISA plan gives an

administrator discretionary authority to determine eligibility for benefits, a district

court will ordinarily review the administrator’s decision for an abuse of discretion.

Id. (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).

Nevertheless, a court may employ a less deferential standard of review if the claimant

presents material, probative evidence demonstrating (1) that a palpable conflict of

interest or a serious procedural irregularity existed, which (2) caused a serious breach

of the plan administrator’s fiduciary duty to the claimant. Woo, 144 F.3d at 1160; see

also Buttram v. Cent. States, S.E. & S.W. Areas Health & Welfare Fund, 76 F.3d 896,

901 (8th Cir. 1996) (“[The] irregularities must have some connection to the

substantive decision reached; i.e., they must cause the actual decision to be a breach

of the plan trustee’s fiduciary obligations.”). Woo’s second prong “presents a

considerable hurdle for plaintiffs.” Torres v. UNUM Life Ins. Co. of Am., 405 F.3d

670, 679 (8th Cir. 2005) (internal quotation omitted). We review de novo the district

court’s determination of the proper standard of review to be applied to Meredith’s

determination that Kecso was not disabled under the terms of its disability plan. Woo,

144 F.3d at 1160.
1

There does not appear to be consensus in this circuit as to whether a

presumption of a palpable conflict of interest should apply under Woo’s first prong

where the same entity both funds and administers the benefits plan. Compare Tillery

v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1197 (8th Cir. 2002) (holding that when

an entity both funds and administers a plan, a rebuttable presumption of a palpable

conflict of interest arises) and Schatz v. Mut. of Omaha Ins. Co., 220 F.3d 944, 947-48

(8th Cir. 2000) (holding that “when the insurer is also the plan administrator, we have

recognized something akin to a rebuttable presumption of a palpable conflict of

interest”) with Chronister v. Baptist Health, 442 F.3d 648, 655 (8th Cir. 2006)

(holding that “it is wrong to assume a financial conflict of interest from the fact that

the plan administrator is also the insurer”) and Davolt v. Executive Comm. of O’Reilly

Auto., 206 F.3d 806, 809 (8th Cir. 2000) (“Although the fact that the plan

administrator is also the insurer may give rise to a conflict of interest, the district court

erred when it assumed an automatic conflict of interest existed.”).

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The district court found that Meredith’s roles as employer, insurer and plan

administrator established a conflict of interest. We assume without deciding that

Meredith had a palpable conflict of interest satisfying the first prong of Woo.

1

Similarly, we will assume without deciding that Meredith’s failure to provide Kecso

a copy of her claim file “upon request” prior to determining Kecso’s disability status

constitutes a serious procedural irregularity satisfying the first prong of Woo. See 29

C.F.R. § 2560.503-1(h)(2)(iii). In both of these instances, however, Kecso has failed

to present any evidence of a causal connection between the conflict or procedural

irregularity and any breach of Meredith’s fiduciary duties to Kecso. While the district

court cited the rule that the existence of a conflict or procedural irregularity does not

establish a breach of fiduciary duty without “some connection to the substantive

decision reached,” it failed to cite any evidence causally connecting either the conflict

or procedural irregularity to any breach of a fiduciary duty on Meredith’s part.

Standing alone, a conflict of interest does not establish a breach of fiduciary duty

because “ERISA itself contemplates the use of fiduciaries who might not be entirely

neutral.” Tillery v. Hoffman Enclosures, Inc., 280 F.3d 1192, 1197 (8th Cir. 2002).

We have also observed that “[t]he mere assertion of an apparent irregularity, without

more, is insufficient to give rise to heightened review.” Layes v. Mead Corp., 132
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We also find it persuasive that Kecso identifies no prejudice flowing from

Meredith’s failure to produce her claim file prior to deciding her administrative

appeal. Presumably, had this procedural irregularity caused a serious breach of

Meredith’s fiduciary duty to Kecso, she could identify some harm arising from the

breach. See Neumann v. AT&T Commc’ns, Inc., 376 F.3d 773, 782 n.4 (8th Cir.

2004).

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F.3d 1246, 1250 (8th Cir. 1998). “[A]bsent material, probative evidence, beyond the

mere fact of the apparent irregularity, tending to show that the administrator breached

his fiduciary obligation, we will apply the traditional abuse of discretion analysis.”

Buttram, 76 F.3d at 900 (internal citations omitted).2

 Consequently, because Kecso

failed to present evidence that the conflict of interest or the procedural irregularity

caused Meredith to breach its fiduciary duty, neither warrants a review of Meredith’s

decision on a standard less deferential than abuse of discretion. 

The district court also held that under the first prong of Woo, Meredith acted

without proper judgment by failing to give appropriate weight to Dr. Friedgood’s

opinions and by initially paying LTD benefits and subsequently denying them based

substantially on the same evidence. It then held that Meredith’s failure to use proper

judgment established the causal connection required under Woo’s second prong. We

do not agree that Meredith acted without proper judgment. 

The district court concluded that Meredith failed to exercise proper judgment

because “Meredith disregarded Dr. Friedgood’s opinions that Kecso’s pain,

headaches, and fatigue were due to her astrocytoma despite his credentials as a

neurologist . . . and the fact that he treated Kecso for over two years, from the time her

tumor was diagnosed, before Meredith terminated her LTD benefits.” Meredith did

not disregard Dr. Friedgood’s opinions. The record amply demonstrates that from

March 2003 through June 2004, with two exceptions, Dr. Friedgood repeatedly

certified to Meredith that Kecso had no medical restrictions. The first exception arose

in a December 31, 2003 letter from Dr. Friedgood to Meredith stating, “[a]s a result
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of [Kecso’s] condition she suffers from chronic headaches and excessive fatigue. She

has been unable to return to her job because of these symptoms.” Less than two

months earlier, Dr. Friedgood had written to Kecso’s primary physician that “[Kecso]

continues to complain of chronic fatigue and a number of sensory complaints, the

exact etiology of which is unknown.” The record reveals no explanation as to how or

why Dr. Friedgood’s opinion about the causation of Kecso’s sensory complaints

changed in those two months. The second exception was Dr. Friedgood’s medical

certification to Meredith on February 4, 2004, in which he said, “[Kecso] is limited

by her affective and cognitive response to her brain tumor. She finds it difficult to

function and can not work because of these symptoms.” In the letter reporting its

decision to discontinue Kecso’s LTD benefits, after recounting both Dr. Friedgood’s

observations and other relevant evidence, Meredith reasonably concluded, “[T]he

medical records contain inconsistencies that cause Meredith to question the accuracy

with which she is self-reporting her symptoms.” As in Pralutsky v. Metropolitan Life

Insurance Co., “[t]his is not a case where the plan trustee failed to inquire into the

relevant circumstances at issue, or never offered a written decision that can be

reviewed, or committed irregularities so severe that the court ‘has a total lack of faith

in the integrity of the decision making process.’” 435 F.3d 833, 838 (8th Cir.)

(quoting Buttram, 76 F.3d at 900), cert. denied, --- U.S. ---, 127 S. Ct. 264 (2006).

We similarly conclude that Meredith did not fail to use proper judgment in its

consideration of the unexplained inconsistency in Dr. Friedgood’s opinions. 

We also do not agree with the district court’s conclusion that Meredith did not

use proper judgment in initially paying LTD benefits and subsequently denying them

based substantially on the same evidence. While we are mindful that “unless

information available to an insurer alters in some significant way, the previous

payment of benefits is a circumstance that must weigh against the propriety of an

insurer’s decision to discontinue those payments,” McOsker v. Paul Revere Life

Insurance Co., 279 F.3d 586, 589 (8th Cir. 2002), we are not convinced that McOsker

compels a finding here of failure to use proper judgment, nor are we convinced that
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In order to receive LTD benefits under Meredith’s plan, a claimant must be

“totally disabled,” defined as: “(1) Due to an illness or injury, you are unable to

perform the material duties of your regular occupation at Meredith, and would be

unable to perform similar duties at any other employer; and (2) You are under the

continuous care of a physician.”

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Meredith failed to use proper judgment under these circumstances, see id. (“We are

not suggesting that paying benefits operates forever as an estoppel so that an insurer

can never change its mind . . . .”). To the contrary, the record suggests that Meredith

simply agreed to pay LTD benefits to Kecso while it sought to reconcile the

conflicting medical information by obtaining all of Kecso’s relevant medical records.

Kecso’s refusal to provide the psychotherapy records that might have revealed

whether her symptoms were related to her tumor frustrated Meredith’s investigation.3

As a result, Meredith exercised its option under the plan to suspend Kecso’s LTD

benefits. Once the parties reached a compromise regarding Kecso’s mental health

records, Meredith made a prompt determination of Kecso’s eligibility for LTD

benefits. Moreover, the record reflects that Meredith received significant additional

medical information between the time it began paying LTD benefits to Kecso in June

2003 and the date that it determined that Kecso was ineligible in June 2004. This

information included several medical certifications from Dr. Friedgood that Kecso had

no medical restrictions and his opinions that Kecso’s fatigue and pain were of

unknown etiology and that she could perform daily activities at home. Rather than

evidencing a lack of proper judgment, this record reflects Meredith’s exercise of

reasonable and prudent judgment. The fact that Meredith agreed to pay LTD benefits

while it investigated apparent inconsistencies and ambiguities in the medical record

and that it based its decision on the entire record, including subsequently received

medical evidence, does not create a basis upon which a court should find a failure to

use proper judgment and apply a less deferential standard of review. See Tillery, 280

F.3d at 1197 (“The plan administrator’s fiduciary duties extend to everyone covered

by the plan, and an administrator who fails properly to investigate a claim breaches

its fiduciary duty to all beneficiaries by granting benefits to unqualified claimants.”).
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Because we find no basis warranting a review of Meredith’s decision on a

standard less deferential than abuse of discretion, the district court erred by failing to

review Meredith’s benefits decision on an abuse of discretion standard.

B. Meredith’s Benefits Decision

We now turn to the merits of Meredith’s denial of Kecso’s claim for LTD

benefits. See Rittenhouse v. UnitedHealth Group Long Term Disability Ins. Plan, 476

F.3d 626, 629-32 (8th Cir. 2007) (holding that the district court erred in applying de

novo standard; proceeding to review the merits of the claim under an abuse-ofdiscretion standard). Under an abuse of discretion standard, “the plan administrator’s

decision will be upheld if it was reasonable, that is, if it was supported by substantial

evidence. If the decision satisfies this standard, it should not be disturbed even if

another reasonable, but different, interpretation may be made.” McGarrah v. Hartford

Life Ins. Co., 234 F.3d 1026, 1031 (8th Cir. 2000) (internal quotation omitted).

Substantial evidence is more than a scintilla but less than a preponderance. PhillipsFoster v. UNUM Life Ins. Co. of Am., 302 F.3d 785, 794 (8th Cir. 2002). “Where the

record reflects conflicting medical opinions, the plan administrator does not abuse his

discretion in finding that the employee is not disabled.” Smith v. UNUM Life Ins. Co.

of Am., 305 F.3d 789, 795 (8th Cir. 2002) (internal quotation omitted). 

Viewing the evidence in the light most favorable to Kecso, see Layes, 132 F.3d

at 1251, Meredith did not abuse its discretion in determining that Kecso was not

disabled under the plan. In order to be eligible for LTD benefits, Meredith’s plan

requires a finding that due to an illness or injury, Kecso was unable to perform the

material duties of her regular occupation and would be unable to perform similar

duties at any other employer. The only evidence suggesting that Kecso was unable

to work can be found in Dr. Friedgood’s statements in late 2003 and early 2004 that

Kecso “is limited by her affective and cognitive response to her brain tumor. She

finds it difficult to function and can not work because of these symptoms” and that she
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“is disabled by her subjective complaints of headache, fatigue, cognitive complaint.”

Against this and in support of Meredith’s determination, both Dr. Friedgood and Dr.

Corey Raffel at the Mayo Clinic released Kecso to return to work without restrictions

in early 2003. Dr. Friedgood subsequently certified that Kecso had “no medical

restrictions” in March, May, August, October and December of 2003. In November

2003, Dr. Friedgood wrote to Kecso’s primary physician that “[Kecso] continues to

complain of chronic fatigue and a number of sensory complaints, the exact etiology

of which is unknown.” In March 2004, in an effort to clarify Kecso’s disability status,

Meredith’s corporate medical director conducted a telephone interview of

Dr. Friedgood in which Dr. Friedgood admitted that Kecso had no medical restrictions

and appeared to function well at home. Dr. Friedgood stated that he had no objections

to Kecso’s returning to work on a part-time basis. There is no evidence in the record

explaining Dr. Friedgood’s vacillating opinion, and the medical records from Kecso’s

late 2002 and early 2003 visits to the Mayo Clinic suggest that her tumor was not

disabling. See Smith, 305 F.3d at 795 (“Where the record reflects conflicting medical

opinions, the plan administrator does not abuse his discretion in finding that the

employee is not disabled.”). Viewing the evidence in the light most favorable to

Kecso and applying an abuse of discretion standard of review, we conclude that

Meredith’s decision to terminate Kecso’s LTD benefits was reasonable in that it was

supported by substantial evidence. 

III. CONCLUSION

We reverse the district court’s grant of summary judgment to Kecso and remand

the case for entry of judgment in favor of Meredith.

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