This order and judgment is not binding precedent, except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be

c ited, howeve r, for its pe rsua sive va lue consistent with Fed. R. App. P. 32.1

and 10th Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

March 23, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT O F APPEALS

TEN TH C I RC U I T

K A THY L. BUC KA RDT,

Plaintiff-Appellee,

v. No. 06-8005

A LB ER TSON’S, IN C. and VPA ,

In c .,

Defendan ts-App ellants.

(D .C . No. 04-CV-99-B )

(D. Wyoming)

ORDER AND JUDGM E NT

*

Before BR ISCOE, EBEL, and GORSUCH, Circuit Judg es.

Albertson’s, Inc. (“Albertson’s”), appeals the district court’s grant of

summary judgment in favor of Kathy Buckardt (“Buckardt”), who filed a

claim under the Employee Retirement Income Security Act (“ERISA”), 29

U.S.C. § 1132, after Albe rtson’s d enied he r c laim for long-te rm disability

ben efits. The d istrict court granted Buck ardt’s motion fo r summary

judgment becaus e it determined that Albertson’s denial of benefits was
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arbitrary and capricious. On appeal, Albertson’s argues there was

substantial evidence to support its denial of benefits and that the district

court, despite claiming to review the decision under the arbitrary and

c apric ious standa rd , e rroneously reviewed the de c ision de novo. We

exe rc ise jurisdic tion unde r 28 U.S.C . § 1291 and REV ER SE and REM AND.

I.

Buckardt worked as a pharmacy manager at one of Albertson’s stores

in Wyoming and participated in the company’s long-term disability plan

(“ the Plan ” ), which wa s administe red by Albe rtson’s through its Bene fits

Department. Under the Plan’s terms, an employee is permitted to receive

long-term disability benefits if the employee is totally disabled. The Plan

defines “Total Disability” to mean:

the complete inability of the Employee to perform an y an d ev ery

duty of h is or her reg ular oc cu pation with the Employer;

provided, that if benefits have been paid pursuant to Section

3.01 for 24 months of any continuous pe riod of Tota l Disability,

then for the balance of the period of Total Disability following

su ch 24-month pe riod, Total Disability sh a ll me an the complete

inability of the Employee to perform any and every duty of any

gainful occupation for which he or she is reasonably fitted by

tra ining, educ a tion or expe rienc e , or may re a sonably be com e

qualified based on his or her training, education or experience,

subje c t to the applic a tion of Rehabilita tive Employment. 

Record o n Appea l (“ROA”) a t 111 (emphasis ad ded ).

The Plan stated that the determination of Total Disability “shall be

determined by the Plan Administrator in its sole and absolute discretion.” 
-3-

Id. The Plan grants its administrator “[t]he discretion to make fact findings

and to determine all questions relating to the eligibility of Employees for

bene fits, as we ll as the amount of payment of bene fits” and the powe r “ to

construe and interpret the Plan and the Trust.” Id. at 132.

In M ay of 2000, Buckardt injured her back at work and underwent

several surgeries in the following months. In September of 2000,

Albertson’s determined that Buckardt was totally disabled based upon her

inability to perform her regular occupation of pharmacy manager, and

awarded her long-term disability benefits. In September of 2002, Buckardt

was required to demonstrate that she met the more stringent requirement of

total disability required under the Plan if “benefits have been paid pursuant

to Se ction 3.01 for 2 4 months of any continuous pe riod of Tota l Dis ability. .

. .” Id. a t 111. To me e t this more stringent de finition of tota l disability,

Buckardt would have to be unable to “perform any and every duty of any

gainful occupation for which . . . she [wa]s reasonably fitted by training,

educ a tion or expe rienc e . . . .” Id . (empha sis added). 

In conjunction with her two-year evaluation, Albertson’s requested

that Buckardt undergo a Functional Capacity Evaluation (“FCE”), which

would te st he r func tiona l c apabilitie s thro ugh a ba tte ry of obje c tive te sts. 

Buckardt underwent an FCE on August 28, 2002, with Hands On Physical

Therapy. The physical therapist who administered the FCE commented that
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Buckardt’s “Global Effort Rating” was questionable and that Buckardt

perceived her abilities to perform work tasks at well below her tested

abilities. Howeve r, the physic a l the rapist noted tha t Bucka rdt had c e rta in

limitations with lifting, carrying, climbing, and sitting. Specifically, he

noted that Buckardt was “frequently up and down from her chair” and that

the longest times she sat was eleven minutes. Id. at 38. The physical

the rapist conc luded, 

[i]n terms of access to the job market, Kathy Buckardt

performed at a modified “Sedentary” physical demand

cha ra c te ristic leve l a s de fined by the U.S. Depa rtment of Labor. 

At this lev el she could not return to her job as a Pharmac ist. It

must be noted tha t pa tient s e lf limited he r w e ighted a c tivitie s. 

She was not required to maintain her seat posture (she was

a llowed to transition he r posture a s she wanted ). She wa s able

to perform most of her activities and postures at a higher level

than she rated herself in her interview and in the P .A .C .T .

Special Fu nction Sort. Id . 

On September 20, 2002, Albertson’s M edical Review Committee,

consisting of members of Albertson’s Benefits Department, met with a

consultin g physic ian, Dr. J ame s M ore land, to review Bucka rd t’s c la im. 

Albertson’s informed Buckardt on October 3, 2002, that “[a]ccording to the

Functional Capacities Evaluation that was submitted for this review, it was

determined that you can perform sedentary work. Therefore, you no longer

meet the Plan’s definition of ‘Total Disability’ and your claim for Long

Te rm Dis ability bene fits ha s be en te rmina ted.” Id . a t 41. 
-5-

Bucka rd t appe a led this de c ision and submitted, with he r appe a l, a

letter from her husband and a statement from Dr. M argaret Irish, one of her

treating physicians. In her appeal, Buckardt urged Albertson’s to consider

her problems with pain and commented,

there are two main problems in my seeking some form of

sedentary work. The first is the great pain that I experience that

is very unrelenting. It is distracting to be in such pain and

attempt to perform any gainful employment even if someone

would be willin g to hire me with such a debilita ting handic ap. 

Second, to just ease the pain slightly, I am on high doses of

narcotics. It has caused me much embarrassment to fee l so

dulled by the drugs. Id. at 43-44.

Buckardt included a statement from her husband, in which he reiterated

Bucka rdt’s problems with pa in, noting tha t “p a in rules he r life , she ha s to

plan every breath, every movement, and every activeity [sic] around her

pain.” Id. at 45.

Finally, Buckardt included a letter from Dr. Irish, one of her treating

physicians. Dr. Irish, who specialized in physical medicine and

rehabilitation, was a new associate of Buckardt’s regular physician and had

se en Bucka rdt on tw o oc c a sions. Dr. Irish commented on Bucka rdt’s FC E

evaluation and stated,

[ e ]ven though she wa s ra ted in the modified sedenta ry c a tegory,

her education and training as well as job experience and

requirements do not fit in to the modified sedenta ry c a tegory. 

Her job as a retail pharmacist would fit more into the light

catego ry as far as lifting , bu t in the medium catego ry as far [as]

repetitive reaching and grasping and in the heavy category as far
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a s pro longed requirement for standing and wa lking. Id . a t 47. 

Dr. Irish concluded,

[a]s an experienced physical medicine and rehabilitation

physician, I would state without a doubt at this time Ms. Kathy

Buck ardt is totally disabled. She currently is unab le to “p erform

any and every duty of any gainful occupation.” At this time, she

would not even be able to tolerate undergoing rehabilitative

employment or vocational rehabilitation. Her pain is too

distra c ting and ve ry limitin g with mobility curr ently. Id. a t 48. 

On November 22, 2002, the M ed ical Rev iew Committee met with Dr.

Theodore Walters, a consulting physician, to address Buckardt’s appeal, and

once again denied benefits. Buckardt appealed this decision. On December

6, 2002, Bucka rdt wa s awa rded Soc ial Se curity Disability Bene fits

(“SSDB”) effective as of November of 2000.

Bucka rdt unde rwent a s e cond FCE on Janua ry 22, 2003, with

WorkSTEPS, Inc., which sought to “objectively quantify current maximum

voluntary physical capacity.” Id. at 60. The physical therapist who

administered this FCE commented,

[t]he limited sitting and standing tolerance M rs. Buckardt

exhibits today would preclude her from a return to a Pharmacy

position at this time. On s everal occasions today she stood for

4-5 minutes max imum, then sat down fo r severa l minutes before

needing to stand up, more frequently standing only 2-3 minutes

before sitting down again. During the 2 hours, 15 minutes

evaluation, 2 hours was spent sitting and standing. The

maximum sitting time was 10 minutes, however, more often she

sat less than 5 minutes before standing up or walking. She

demonstrated this frequent posture changes [sic] while filing

[sic] out pain diagrams at the beginning of testing. Id. at 68.
-7-

H e commented, how eve r, tha t Bucka rdt appe a red to dem onstra te som e

behaviors that were disproportionate to the actual functional loss caused by

her impairmen t. He conclud ed Buck ardt would qualify fo r the seden tary

physical demand characteristic level as defined by the U. S. Department of

Labor, with a reduc ed lifting lev e l.

In April 4, 2003, Albe rtson’s M edica l Review Committe e onc e aga in

de te rm ined tha t Bucka rdt wa s not tota lly disabled be c ause the “ se cond FC E

a lso indica tes sh e c an pe rform a t a s edentary work lev e l. The re fore sh e is

not disabled from an y gainful employmen t and does n ot mee t the Plan’s

definition of total disability.” Id. at 76.

Buckardt appealed again on June 23, 2003, through a letter written by

her a ttorney. Albertson ’s info rmed Buck ardt that this would be h er third

and fina l ap pe a l. On Ju ly 11, 2003, the M edica l Review Committe e aga in

denied Buckardt benefits, determining that, “[n]o new medical

documentation was provided to support her claims she is totally disabled

from any occupation (please cite plan definition for disabled [sic] after 24

mos.).” Id. at 82. Buckardt was informed of this decision by a letter and

reminded that she had exhausted her appeals process. Buckardt then

bro ught he r ERISA c la im in the Distric t of Wyoming pursuant to 29 U.S.C. §

1132(a)(1)(B). The d istrict court granted summary judgmen t in Buck ardt’s

f avor and this appe a led followed. 
 This circuit has conclud ed that, in the ERISA co ntext, the a rbitrary 1

and capricious standard is equated with the abuse of discretion standard and

the re is a s emantic , not substantive , diff e renc e be twe en the te rms. 

Chambers v. Family Hea lth Plan Corp., 100 F.3d 818, 825 n.1 (10 th Cir.

1996).

-8-

II.

The district court determined, and the parties do not dispute, that the

Plan granted Albertson’s discretionary authority to determine eligibility for

bene fits. The re fore , the distric t co urt prope rly conc luded tha t it sh ould

review Albertson’s decision under an arbitrary and capricious, or abuse of

discretion, standard. Gaither v. Aetna Life Ins. Co., 388 F.3d 759, 767 1

(10th Cir. 2004) (when an ERISA plan grants a plan administrator discretion

in administering the p lan, we will uphold its dec isions unless they are

arbitrary and capricious). Becaus e Buckardt has not raised the issue of a

potentia l conflic t of inte re st wa rranting an enhanc ed standa rd of review , we

assume that the pure arbitrary and capricious standard applies. See Fought

v. UNUM Life Ins. Co. of Am., 379 F.3d 997, 1003 (10th Cir. 2004) (noting

that this court ap plies a less def erential arbitrary an d capriciou s standard

when the plan administrator has a conflict of interest); Gaither, 394 F.3d at

801.

This distric t co urt’s d e termina tion of whe the r an ERISA bene fits

de c ision is a rb itra ry and c apric ious is a lega l que stion reviewed de novo. 
-9-

Ca ldwe ll v. Lif e In s. Co. of N. Am., 287 F.3d 1276, 1282 (1 0th Cir. 2002). 

A decision is arbitrary and capricious if it is unsupported by substantial

evidenc e . Sandova l v. Ae tna Lif e & Ca s. Ins. Co., 967 F.2d 377, 382 (10th

Cir. 1992). “‘Substantial evidence is such evidence that a reasonable mind

might accept as adequate to support the conclusion reached by the

[decisionmaker].’ Substantial evidence requires ‘more than a scintilla but

less than a preponderance.’” Id. (citations omitted) “Substantiality of the

evidence is based upon the record as a whole. In determining whether the

evidence in support of the administrator’s decision is substantial, we must

take[] into account whatever in the record fairly detracts from its weight.” 

Caldw ell, 287 F.3d at 12 82 (interna l quotation marks omitted).

When reviewing under the arbitrary and capricious standard, “[t]he

Administrator[’s] decision need not be the only log ical one no r even the b est

one. It need only be sufficiently supp orted b y the fa cts within [his]

knowledge to counter a claim that it was arbitrary and capricious.” Kimber

v. Thiokol Corp., 196 F.3d 1092, 1098 (10th Cir. 1999). In reviewing the

plan administra tor’s de c ision unde r an a rb itra ry and c apric ious standa rd , a

distric t co urt is limited to the administra tive re cord, or the ma terials

compiled by the plan administrator in making the decision. Sandoval, 967

F.2d at 380.

This court reviews a grant of summary judgment de novo, applying the
-10-

same lega l standa rd used by the distric t court. Kimbe r, 1 96 F.3d a t 1097. 

Summa ry judgment is appropria te “ if the pleadings, depositions, answe rs to

interrogatories, and admissions on file, together with the affidavits, if any

show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Pitman v. Blue

Cross & Blue Shield of Oklahoma, 217 F.3d 1291, 1295 (10th Cir. 2000)

(citing FED. R. CIV. P. 56(c)).

On appeal, Albertson’s argues there was substantial evidence in the

re cord to su pport its denial o f bene fits and tha t the distric t co urt, de sp ite

c laiming to apply an a rbitrary and c apric ious stan da rd of review , ac tua lly

and erroneously reviewed its decision to deny Buckardt benefits under a de

novo standard. Spec ifica lly, Albertson ’s claims tha t the d istrict court

disrega rded the findings of tw o consulting physic ians and the re sults of tw o

indep en den t FCEs in the record and inap propriately co nside red Buck ardt’s

award of SSDB. In response, Buckardt contends that there was no medical

evidence in the record to support Albertson’s denial of benefits and the

record was replete with evidence that Buckardt met the Plan’s definition of

tota l disability.

Albertson’s first argues that the district court improperly ignored the

opinions of two co nsulting physician s, Dr. James M oreland an d Dr.

Theodore Walters, who reviewed Buckardt’s claim and determined that she
-11-

wa s n ot totally disabled unde r the Plan . In re sp onse , Bucka rdt co rre c tly

a rgue s tha t the re cord conta ins no medic a l findings or opinions of the se tw o

consulting physicians. The record merely contains the initials “JM ” and

“TW” on two administrative forms denying Buckardt benefits and upholding

her denial of b enefits. There is no v erification in the record of who these

initials identify. Even if Dr. M oreland and Dr. Walters initialed the cited

forms, the re is no indic a tion wha t the ir initia ls we re me ant to signify. 

B ec ause the se initia ls do not repre sent the medic a l opinions of tw o

consu lting physic ian s, the re we re prope rly disrega rded by the distric t co urt.

Albertson’s next argues that the district court improperly discounted

the results of two independent FCEs, both of which indicated that Buckardt

was c apable of modified s edenta ry work. Bucka rdt counte rs tha t the se FCEs

were not medical evaluations and offered no opinion on what type of

sedentary work she could perform. In addition, Buckardt contends that the

record reveals that she cannot undergo rehabilitative employment or

vocational rehabilitation because of her pain.

The therapist who administered Buckardt’s first FCE concluded that

she was capable of modified sedentary work as long as she could transition

between standing and sitting as needed. He noted that Buckardt self-limited

her weighted activities and was able to perform most of her activities and

postures at a higher level than she had rated h erself. The therapist also
-12-

noted that she limped less when she was unaware of observation and did not

perform consistently throughout the functional test session.

The second FCE was performed five months later by a different

the rapist a t a d iff e rent f a c ility. This the rapist noted Bucka rdt’s complaints

of constant pain and her us e of pain-relieving drugs. He commented that

Buck ardt exp erienced high pain levels after performing reaching activities,

did not exhibit pain magnification, was cooperative during testing, and that

validity s cores demonstrated maximum effort in at least four of five

categories. The therapist stated that Buckardt reported high pain levels and

was “tearful just prior to leaving,” but ultimately determined that Buckardt

met a physical demand classification for sedentary work, with a limitation

on her lifting requirements. ROA at 67.

Both physical therapists who administered Buckardt’s FCEs reached

the same ultimate conclusion that Buckardt was capable of modified

sed en tary work. The re sults of these two indep en den t FCEs prov ide more

than a sc intilla o f evidenc e tha t Bucka rdt doe s n ot have “ the complete

inability” to “perform any and every duty of any gainful occupation for

which . . . she is reasonably fitted by training, education or experience. . . .” 

Id. at 11 1 (emph asis added ). The FCEs contain some con tradictory find ings,

including that Buckardt had to change postures frequently during the

evaluation, experienced high pain levels at certain times during the testing,
-13-

reported difficu lty sitting, standing, wa lking, an d lifting, an d reported pa in

tha t prevented he r from hobbie s, sports, s exua l re la tions, chore s, and work . 

Howeve r, de sp ite n oting the se difficu ltie s, both the rapists u ltima tely

concluded that Buckardt was capable of modified sedentary work. When

reviewing under the arbitrary and capricious standard, “[t]he

Administrator[’s] decision need not be the only log ical one no r even the b est

one. It need only be sufficiently supported by facts within [his] knowledge

to counter a claim that it was arbitrary and capricious.” Kimber, 196 F.3d at

1098.

T he distric t court appe a red to discount the re sults of Bucka rdt’s FCEs

becaus e there was no evidence in the record as to what sedentary work she

wa s “ re a sonably fitted by tra ining, educ a tion or expe rienc e ” to pe rform. 

ROA at 111. However, the Plan does not require Albertson’s to identify

alternative jobs as part of its denial of benefits and Buckardt has cited no

authority to the contrary. Instead, Buckardt argues that the FCEs are not

medical findings and that other evidence in the record demonstrates that she

meets the Plan’s definition of total disability. She notes that her treating

physician determined that she is completely unab le to perform an y an d ev ery

duty of any gainful employment and that she is unable to undergo vocational

rehabilitation. Fina lly, she urge s tha t the distric t co urt did not err be c ause it

merely considered, but did not rely upon, her award of SSDB in determining
-14-

that Albertson’s decision was arbitrary and capriciou s.

It is true that “[s]ub stantiality of the eviden ce is ba sed upon the re co rd

as a whole. In determining whether the evidence in support of the

administrator’s decision is substantial, we must ‘take[] into account

whatever in the record fairly detracts from its weight.’” Caldwell, 287 F.3d

at 1282. However, the challenges Buckardt levies against the results of the

FCEs do not sufficiently negate the weight of evidence in support of

Albertson’s decision to deny benefits. First, Buckardt cites no authority for

her argument that Albertson’s canno t rely upon the FCE find ing s because

they are not medical opinions. Several circuits have concluded that the

results of FCEs may serve a s substantial eviden ce fo r a plan administrator’s

decision to deny benefits. See Gannon v. M etro. Life Ins. Co., 360 F.3d

211, 213 (1st Cir. 2004) (concluding that it was reasonable for a plan

administrator to rely upon an FCE as evidence supporting a determination

that claimant did not meet plan’s definition of disability); Jackson v. M etro.

Life Ins. Co., 303 F.3d 884, 888 (8th Cir. 2002) (noting that an FCE’s

de termina tion tha t cla imant co uld do light work wa s enough to constitute

substantial eviden ce fo r denial of b en efits).

While it is true tha t Dr. Irish conc luded tha t Bucka rdt wa s currently

unable “to perform any and every duty of any gainful occupation” and that

Buckardt’s pain levels would prohibit her from undergoing rehabilitative
-15-

employment or vocational rehabilitation, an ERISA plan administrator is not

required to give spe c ia l we ight to the opinion of a tre a ting physic ian. ROC

a t 48. As stated by the Supreme Court,

[p]lan administra tors, of course , may not arbitrarily re fuse to

credit a claimant’s reliable evidence, including the opinions of a

tre a ting physic ian . But, we hold, co urts have no wa rrant to

require administra tors automa tica lly to a c cord sp e c ial we ight to

the o pinion s of a claimant’s physician; nor may cou rts impo se

on plan administrators a discrete burden of explanation when

they credit reliable evidence that conflicts with a treating

physician’s evaluation. Black & Decker Disability Plan v. Nord,

538 U.S. 822, 834 (20 03).

Finally, it is unclea r whethe r the d istrict court relied upon Buck ardt’s

award of SSDB in determining that Albertson’s denial of benefits was

arbitrary and capricious. The district court did note that Buckardt had

received SSDB benefits, which meant that she was not performing

su bstantial ga inful ac tivity, had a seve re medica lly de terminable

impa irment, and wa s unable to adjust from he r p a st work to othe r w ork . 

However, our focus must remain upon the issue presented here: whether

Buck ardt met the Plan’s d efinition of total disability. Bec au se the Plan’s

requirements are not identical to the requirements for SSD B, whether

B ucka rdt met the Soc ia l Se curity Adm inistra tion’s requirem ents for SSD B

is not relevant to our inquiry, and should not be considered.

The re su lts of the FCEs p rovide more than a sc intilla o f evidenc e in

support of Albertson’s denial of benefits and “a reasonable mind might
-16-

accept [this evidence] as adequate to support the conclusion reached by

[Albe rtson’s].” Sandova l, 96 7 F.2d a t 382. Be c ause the re su lts of both

FCEs provide substantial evidence upon which Albertson’s could have bas ed

its dec ision to den y Buck ardt long-term disability ben efits, the d istrict court

e rred in granting Bucka rdt summary judgm ent on he r ERISA c la im .

III.

We REVERSE the distric t co urt’s g rant of summa ry judgment in

Buckardt’s favor and REM AND with directions to the district court to enter

judgment in fav or of Albertson’s.

 

Entered fo r the Court

M ary Beck Briscoe

Circuit Judge