IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 96-40100
                         (Summary Calendar)



TERRY HILTON,

                                          Plaintiff-Appellee/
                                          Cross-Appellant,


                               versus


ASHLAND OIL INC,
Long-Term Disability Plan
for Scurlock Permian Drivers
and Hourly Paid Employees,

                                          Defendant-Appellant/
                                          Cross-Appellee.



          Appeal from the United States District Court
                for the Eastern District of Texas
                          (6:94-CV-754)


                          November 11, 1996


Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*


     Defendant-Appellant, the Long-Term Disability Plan for Permian



     *
       Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Drivers and Hourly Paid Employees (the Plan), appeals the judgment

rendered by the district court following a bench trial, reversing

the decision of the Plan’s administrator that Plaintiff-Appellant

Terry Hilton was not qualified to receive long-term disability

benefits under the Plan.1   As Cross-Appellant, Hilton appeals the

the district court’s rulings that (1) the plan administrator

correctly interpreted the appeal provisions of the Plan, and

(2) Hilton is not entitled to attorneys’ fees because the plan

administrator had not acted in bad faith in denying long-term

disability benefits to Hilton.

     Our review convinces us that, even though the district court

correctly identified “abuse of discretion” as the appropriate

standard for the court to apply when reviewing determinations of a

plan administrator vested with discretion, the district court’s

reasoning, as fully set forth in its opinion, reveals that the

court in fact tested the plan administrator’s decision not for

abuse of discretion but for clear error. That opinion also reveals

that, by requiring the plan administrator to prove that Hilton was

not disabled, the court impermissibly reversed the burden of proof,

which should have been Hilton’s to prove that he is disabled for

purposes of entitlement to benefits under the Plan, not the Plan’s


     1
        The district court did not conclude, however, that the
evidence was sufficient to determine, as a matter of law, that the
Plan’s terms required the granting of benefits to Hilton, so the
court remanded the case to the plan administrator with instructions
to take and consider additional evidence.

                                 2
to prove that he is not.     We therefore reverse the judgment of the

district court to the extent it held that the plan administrator

abused its discretion in concluding that Hilton had not shown that

he came within the Plan’s definition of disability.          As a result of

our reversal, we must reinstate the determination of the plan

administrator to deny long-term disability benefits to Hilton.            We

affirm, however, the judgment of the district court to the extent

it   rejected    (1)     Hilton’s      complaint    regarding      the   Plan

administrator’s interpretation of the appeal provisions of the

Plan, and (2) Hilton’s request for attorneys’ fees.

                                       I

                          FACTS AND PROCEEDINGS

A.   Statement of the Case

     Hilton filed suit in district court under ERISA2 to recover

long-term disability benefits from the Plan, which is an ERISA

employee welfare benefit plan.          The case was tried to the court

without a jury and produced a judgment in favor of Hilton.                In

essence, that judgment vacated the plan administrator’s denial of

long-term disability benefits to Hilton as an abuse of discretion,

but rejected Hilton’s claims (1) that the plan administrator had

misinterpreted     and    misapplied       the   reconsideration     (appeal)

provisions of the Plan, and (2) that Hilton was entitled to

attorneys’ fees.       Rather than rendering a judgment ordering the

     2
          Employer Retirement       Income       Security   Act    (“ERISA”),
29 U.S.C. § 1132(a)(1)(B).

                                       3
Plan to pay benefits to Hilton, however, the court remanded the

case to the plan administrator with instructions to take additional

evidence.         The   Plan   timely     appealed    the    reversal     of    the

administrator’s determination and the remand for the taking of

further evidence, and Hilton cross-appealed the court’s rejection

of his claims regarding attorneys’ fees and misinterpretation of

the appeal provisions of the Plan.

B.     Facts

       1.      Findings of the District Court

               Hilton was employed by Scurlock Permian as a truck driver

for some ten years prior to September 1991 when he sustained a

work-related lower back injury that prevented his continued work.

He began receiving short-term disability payments, applied for and

received Workers’ Compensation, and applied for but was turned down

for    Social     Security     benefits     because    his      monthly      income

disqualified him, not because of the nature of his injury.

               At the time when Hilton was injured, he was a participant

in the Plan which was sponsored by Ashland Oil, Inc. (Ashland), of

which Scurlock Permian is a division.           For purposes of ERISA, the

Plan is an employee welfare benefit plan.3              Approximately eleven

months after he was injured, Hilton applied to the Plan for long-

term       disability   benefits.       Although      Ashland     is   the     plan

administrator, Prudential Life Insurance Co. (Prudential) serves as


       3
            29 U.S.C. § 1002(1).

                                        4
“claims administrator” and makes all eligibility determinations for

the   Plan   (the    remaining      administrative    duties   and    functions,

including interpretation of the Plan, are performed by Ashland as

plan administrator).

             For    purposes   of    entitlement     to   benefits,    the   Plan

provides:

      You will be eligible for benefits, upon a timely filing
      of a claim for benefits and after expiration of the
      applicable   waiting  period,   if   medical   evidence,
      satisfactory to the Plan administrator, shows that you
      are physically unable to perform the duties of any
      occupation for which you are reasonably qualified by
      education, training and experience, or for which you may
      be reasonably re-trained or rehabilitated.4

Within the required period of three months following Hilton’s

application, Ashland denied his claim.5

             When Prudential denied Hilton’s claim in November 1992,

it considered the following evidence regarding Hilton’s education,

training and experience:         He had a high school education; he had

owned and managed his own service station; he had been self-

employed as a mobile home mover; and, since coming to work for

Scurlock Permian, his job had been that of a truck driver, which is

classified as “heavy labor involving a lot [sic] of lifting,

climbing, and bending.”

      4
       It is undisputed that the Plan allocates administrative and
interpretative discretion to the plan administrator.
      5
       The Plan contains a provision, which accords with ERISA
regulations, 29 C.F.R. § 2560.503-1(e), specifying that a claim is
deemed denied if no decision is forthcoming within ninety days
following application.

                                         5
            In addition to the information that Prudential had at its

disposal regarding education, training and experience, it had

considerable information regarding Hilton’s injury.            A report from

Dr. Danielson, Hilton’s primary care physician throughout his

treatment, indicated that Hilton had incurred a serious back injury

and that a year of treatment had not improved his condition.             After

Hilton was diagnosed with degenerative discs in the bottom three

levels of his spine, Dr. Danielson had prescribed physical therapy,

including walking up to two to three miles a day, which Hilton did

but   not   without   severe   pain.       Following   some   six   months   of

treatment, Dr. Danielson acknowledged that “Hilton is not doing

well with physical therapy and we need to make some changes.”                Out

of concern for Hilton’s psychological attitude and its potential

effect on recovery, Dr. Danielson referred Hilton to a clinical

psychologist who concluded that “[p]sychologically, [Hilton] is a

fair candidate for recovery” even though at the time he was

experiencing some stress and emotional depression as a result of

the injury.

            After approximately one year, Dr. Danielson determined

that, despite participating in the physical therapy program, Hilton

was in constant pain which increased with activity.                 The doctor

discussed surgery, which he thought of as a last resort.                     He

nevertheless referred Hilton to a surgeon; however, Hilton had

still not seen the surgeon by the time Prudential made its decision

to deny his claim.      Neither had a functional capacity evaluation

                                       6
been performed before that decision was made:                     Dr. Danielson had

recommended that Hilton check into the possibility of re-training

in    a   sedentary     field,     and    had   set   up    a   functional     capacity

evaluation for Hilton, but —— as in the case of the recommendation

to see a surgeon —— Dr. Danielson’s efforts to get Hilton to obtain

a     functional        capacity     evaluation         went     largely      unheeded.

Consequently, Prudential never received an impairment rating report

until Hilton’s attorney sent it in mid-March of 1993, some six

months after the denial of Hilton’s claim.

               Meanwhile,    Hilton       had   hired      an   attorney     after     the

November denial of his claim, and the attorney asked for and

received a 30-day extension to the 60-day time for appeal.                           That

was    early    in    January     1993.     Despite      having    been      advised    by

Prudential that Hilton was entitled to but one appeal before the

decision       became    final,    his    attorney      still    had   not    submitted

additional medical evidence to Prudential by late February, so he

asked for and received yet another extension of 30 days.                         It was

just before the second extension expired, in mid-March, that

Hilton’s attorney finally sent in the report on the impairment

rating, and even then it showed only a nine (9%) percent whole body

impairment.          On the last day of March, Prudential affirmed its

denial of benefits and rejected Hilton’s appeal.

               In July 1993 back surgery was performed on Hilton.                    Some

six months after that, in January 1994, his attorney asked that the

claim for long-term disability benefits be reconsidered for yet

                                            7
another time.     As Prudential was not authorized to interpret the

terms of the Plan, it referred the belated, additional request for

another appeal to Ashland’s Benefits Administration Office.      The

request was denied for the stated reason that the plan permits but

one appeal.    No claimant had ever received a second appeal, and the

Summary Plan Description (SPD) makes no mention of a second appeal.

     2.      Additional Record Evidence

             The Plan is an employee-contributory one for which the

plan administrator merely holds the contributions in trust and

makes payments of benefits as required under the provisions of the

Plan.     Entitlement to benefits requires that the employee furnish

medical evidence satisfactory to the plan administrator that he is

physically unable to perform the duties of any occupation, not just

those of the job he was performing, and not capable of being re-

trained to perform any such duties either.

             Although claim determination is delegated to Prudential,

neither it nor the Plan is responsible for obtaining medical

evidence, either to support or refute a claim.     Under the express

provisions of the Plan, the participant has the burden of proof:

“Obtaining medical evidence to establish a claim for Plan benefits

is the responsibility of the participant and is obtained at the

participant’s cost.”

             Hilton was a truck driver, a high school graduate, and a

former small businessman who had owned and operated both a service

station and a mobile home moving service.     Even though Hilton had

                                   8
the burden of supporting his asserted disability with medical

evidence, Prudential went “above and beyond” its duty by attempting

gratuitously to obtain medical and vocational reports through

Hilton’s physician and the insurance company administering his

workers’ compensation claim. Scant as it was, the information that

Prudential was able to recover included a physician’s diagnosis of

acute lumbar strain; another physician’s report on motor testing

that revealed no weakness, atrophy, or fasciculations; MRI evidence

of L4-5 disc rupture; a physician’s opinion that “[t]here is about

an 80 percent chance that we can get [Hilton] over this without

surgery”; a doctor-to-doctor letter reporting that Hilton had been

walking between two and three miles a day, with a self-rated pain

of four on a scale of ten, down from nine just after the accident,

plus a show of concern about Hilton’s substantial weight gain and

its   exacerbation       of   the   situation;    the   possible   need   for

psychological counseling; a subsequent letter from the physician to

the workers’ compensation carrier noting that no light duty was

available but that Hilton was still walking two to three times a

week, and that the physician would advise against surgery except as

a last resort; and communication from the physician to Hilton

suggesting that he check with the compensation carrier about

settling the claim and the possibility of retaining in a sedentary

field.      In    addition,   the   claims   administrator   at    Prudential

attempted    to    get   specific   information    from   Hilton’s   primary

physician by writing and asking 17 questions, but none of the

                                       9
questions were answered by the doctor.                  His unresponsive reply

merely stated that Hilton would be “set up for a functional

capacity evaluation and impairment rating . . . in the near

future,” which never happened until six months after the claim was

denied.     As for the 17 questions, the physician brushed them off

with the statement that “[t]he information requested by your

questions should be in his medical records already and I assume you

have a copy of those and would suggest that you consult those for

details.”       Significantly, the claims administrator received no

additional information from that physician or from Hilton.                         In

fact, her continued efforts to obtain information proved fruitless

for the most part, basically reflecting that efforts to get testing

and   reports    on   Hilton    had    produced    little      or   nothing   of   an

informative nature, principally due to Hilton’s failure to report

or communicate.

            Having nothing before her but the meager results of her

own voluntary efforts to do Hilton’s evidence-gathering job for

him, the claims administrator recommended denial of Hilton’s claim

for failure to meet his burden of supplying acceptable evidence in

support of the Plan’s “any occupation” definition of disability.

That recommendation was based on Prudential’s inference, from the

little    evidence    that     was    available,   of    the    “possibility”      of

Hilton’s being retained for sedentary work, coupled with the levels

of his education and prior work experience, and the dearth of

medical evidence that he could not perform or be re-trained to

                                         10
perform the work required for any occupation.

           During the specified period permitted for one appeal, as

twice extended, the only additional medical submission reflected

that Hilton adequately performed standing and walking tests and did

not complain of pain, and that under the AMA guidelines, he

suffered   only   a   nine     percent     whole      body   physical   impairment

disability rating.

           As noted, in recommending affirmance of the original

denial, Prudential’s claims administrator relied on Hilton’s age,

prior employment, and the “possibility” of sedentary employment

through re-training.         This was explained in detail to Hilton’s

attorney by telephone on the day in March before the appeal was

rejected and was followed up by a letter even further detailing the

reasons for denying the claim and the appeal.                    When, some nine

months later, Hilton’s attorney again wrote to Prudential seeking

to   re-open   the    matter    on   the      basis    of    “additional   medical

evidence,” his request was referred to Ashland.                 Its Supervisor of

Benefits Administration responded that the Plan would not be able

to review additional medical evidence because (1) no further appeal

procedures were permitted under the Plan, and the (2) the length of

time that had passed since the “second and final denial” was

prejudicially excessive. Hilton filed suit some eight months after

that.

      3.   The Trial and the Judgment

           In October 1995, following completion of a bench trial,

                                         11
the   district   court     ruled     that     the   plan    administrator’s

determination that Hilton was not disabled within the definition of

the Plan constituted an abuse of discretion.          Hilton’s subsequent

motion for attorneys’ fees was denied. The district court remanded

the case to the plan administrator with instructions to consider

new evidence and make a new determination of disability based

thereon.

                                     II

                                  ANALYSIS

A.    Standard of Review

      As correctly noted by the district court, when an ERISA plan

vests the plan administrator with discretionary authority to make

eligibility determinations or construe the Plan’s terms, decisions

of the plan administrator must stand unless there is an abuse of

discretion.6     In   turn,   our    review    of   the    district   court’s

determination    whether      a    plan     administrator     endowed    with

discretionary rights has abused that discretion is conducted under

the standards that we generally apply in non-jury civil cases:7

Questions of law are review de novo8; findings of fact are reviewed

      6
        Firestone Tire & Rubber Co. V. Bruch, 

, 115,

, 956-57, 

(1989), see also Cutting v.
Jerome Foods, Inc., 

, 1295-96 (7th Cir.), cert.
Denied, 

(1993).
      7
        Switzer v. Wal-Mart Stores, Inc., 

, 1298 (5th
Cir. 1995).
      8
        Id.; Liberty Mutual Ins. Co. v. Pine Bluff Sand & Gravel
Co., Inc., 

, 246 (5th Cir. 1996).

                                     12
for clear error.9        Even though the district court’s weighing of

evidence is entitled to deference, the court’s factual findings may

be reversed as clearly erroneous when we are “left with a definite

and firm conviction that a mistake has been made.”10

B.     Determination of Disability

       As accurately framed by the district court, Hilton claims

first that the plan administrator erred in concluding that he

failed to meet the Plan’s definition of disability.                         Because

“Congress intended Plan fiduciaries, not the federal courts, to

have        primary   responsibility          for    claims   processing,”11        a

determination by a plan administrator vested with discretion to

evaluate       such   questions   as    whether      a   claimant   has    met   the

definition       of   disability,      must     be   upheld   unless      the    plan

administrator is found to have abused its discretion. As stated by

the district court here, abuse of discretion hinges on whether the

plan administrator acted arbitrarily or capriciously.12                   Under the

arbitrary or capricious rubric, the plan administrator need only

“articulate a satisfactory explanation for [its] action including



       9
            

.
       10
       

v. City of Bessemer City, 

,
573 (1985)).
       11
        Duhon v. Texaco, Inc., 

, 1309 (5th Cir. 1994)
(quoting Makar v. Health Care Corp. of Mid-Atlantic, 

,
83 (4th Cir. 1989)).
       12
        Sweatman v. Commercial Union Ins. Co., 

, 601
(5th Cir. 1994).

                                         13
a rational connection between the evidence before it and its

decision.”13      We have made clear that when a district court is

reviewing a determination of the plan administrator for abuse of

discretion, the review is limited to the evidence that is actually

before the plan administrator; and the same rule applies to our

review of that decision.14       Central to our review of the district

court’s determination here, and equally central to that court’s

review of the plan administrator’s determination that Hilton was

not disabled as defined by the Plan, is the fact that the plain

wording of the Plan expressly placed on Hilton —— as the party

claiming to be disabled, and thus entitled to benefits —— the

burden of proving (i.e., submitting credible and probative medical

evidence satisfactory to the Plan), that he was in fact disabled to

that extent.

       The framework described by the foregoing legal maxims for

testing     the   plan   administrator’s   determination   for   abuse   of

discretion was correctly recited by the district court.             Despite

such    talismanic   recitation,   however,   the   court’s   own   opinion

demonstrates that in actuality the court (1) shifted the burden of

proof from Hilton to the plan administrator, and (2) applied the


       13
        See Brooks v. Protective Life Ins. Co., 

,
638 (M.D. Ala. 1995) (citing Motor Vehicle Mfs. Association of the
United States, Inc. v. State Farm Mutual Automobile Ins. Co., 

, 43, 

, 2866, 

(1983).
       14
            Wildbur v. ARCO Chem. Co., 

, 639 (5th Cir.
1992).

                                     14
clear    error   standard   of   review    to       the   plan   administrator’s

determination, rather than the substantially more deferential abuse

of discretion standard.

     The    district   court     expressly      “found     that    the    evidence

available to the Plan administrator is insufficient to support a

finding that Hilton was not disabled.”               The foundational fallacy

revealed by that statement is apparent:                   It was not the plan

administrator’s    burden   to    find    sufficient       evidence      to   eschew

disability; rather, it was Hilton’s burden to submit sufficient

satisfactory medical evidence to establish that he was disabled.

By requiring the claimant to collect and submit evidence that he is

so severely disabled that he cannot perform the duties of any

occupation, a presumption of ability (i.e., a presumption against

disability) clearly exists.        We reiterate for emphasis that it was

not incumbent on the plan administrator to make a “finding” that

Hilton was “not disabled”; rather, it was incumbent on Hilton to

adduce    positively   probative    evidence        sufficient    to     support   a

finding that he was disabled. Specifically, it was Hilton’s burden

to adduce a preponderance of evidence, satisfactory to the plan

administrator (more discretion!), that he was not able to perform

any job for which he was either qualified through education,

training, and experience to perform, or that he could reasonably be

re-trained to perform.

     Our synopsis of the facts found by the district court and

present    in    the   record    reflects       a    cavalier     attitude      and

                                     15
lackadaisical effort on Hilton’s part regarding the submission of

probative evidence sufficient to support a determination that

despite his education, training, and experience, he could not

perform any job or be re-trained to do so.     Indeed, the slight

evidence before the plan administrator at the time the decision was

made had been assembled thanks to the efforts of the claims

administrator and her persistence in badgering physicians and the

compensation carrier for additional information.     Even with the

luxury of two extensions of 30 days, neither Hilton nor his counsel

produced positive evidence of the kind needed to meet the test of

disability under the Plan.

     The importance of the burden of proof under such a situation

is demonstrated by the district court’s own words that “[t]he

evidence available to the Plan administrator is insufficient to

support a finding that Hilton was not disabled.”   When the court’s

characterization of the evidence that was before the administrator

is properly recast, with the burden placed on Hilton where it

belongs under the Plan, the court could not have justified a

determination of arbitrary or capricious decision making: “The

evidence available to the plan administrator is insufficient to

support a finding that Hilton was [] disabled.”

     Sometimes we must resort to reductio ad absurdum to make our

point.   Suppose that instead of having before her only the scant

evidence that she had been able to assemble by “pulling teeth” of

those from whom Hilton should have obtained and submitted evidence,

                                16
the   claims    administrator     had   had     absolutely     no     evidence   to

consider.      Under that hypothetical situation, the administrator

would not have had even a scintilla of “evidence . . . to support

a finding that Hilton was not disabled.”             Surely our hypothetical

plan administrator could not be deemed to have abused discretion;

yet under the district court’s test —— that the plan administrator

must have      sufficient    evidence    to    support   a    finding    that    the

claimant is not disabled —— the same illogical holding of abuse of

discretion would appertain.         Q.E.D.

      Compounding the error is the district court’s specific reason

for holding the plan administrator guilty of acting arbitrarily or

capriciously:      a “misinterpretation” of the record.                 The court

first notes —— correctly —— that Prudential’s claims administrator

refused to credit Hilton’s claim of disability as meeting the

definition of the Plan by reciting erroneously that Hilton had

completed his therapy and only needed to see the physician on an

“as needed” basis; that Hilton’s experience as a mobile-home mover

and service station owner and operator, as well as his education,

qualified him for future employment; and that he was capable of

being re-trained for sedentary work.            The court then painstakingly

parsed and      analyzed    the   reports     and   letters    that    the   claims

administrator had before her, concluding that the court’s reading

of such information demonstrated that the claims administrator’s

conclusions were the result of a “misinterpretation of the record.”

      Assuming, arguendo, that the district court is absolutely

                                        17
correct, that its evaluation of the evidence that was before the

claims administrator is right and that hers “misinterpret[ed] the

record”:       The district court would then be within its rights to

label     as        “clearly     erroneous”        the     claims    administrator’s

interpretation of the facts. But clear error is not the applicable

standard       of    review     of    a     plan   administrator’s     discretionary

determination.           Rather,      the    applicable     standard   is   abuse   of

discretion, and clear error simply cannot support a conclusion of

arbitrary or capricious behavior by either the claims administrator

or the plan administrator in this case.

     First, whether correctly or not, the claims administrator

demonstrated conscientious persistence —— beyond her burden —— to

assemble the kind of medical and vocational evidence that Hilton

was duty bound to present. The claims administrator twice extended

the time requested by counsel for Hilton within which to submit

additional      evidence,       but    he    failed   to   produce   anything   of a

meaningful nature.             The record demonstrates that Hilton, by his

refusal to respond to correspondence or timely to submit himself

for a vocational evaluation, became a positive obstacle to his own

burden of proof.

     Moreover, we must respectfully disagree with the district

court’s effort to distinguish the situation in Duhon v. Texaco,

Inc.15    Like Duhon, Hilton has failed to present medical evidence


     15
           

(5th Cir. 1984).

                                              18
of total disability, essentially presenting no evidence in support

of his claim.       While the question of the capability of performing

sedentary work may differ slightly between Duhon and Hilton, there

is at least an implication in both cases that the respective

physicians anticipated the possibility of the plaintiff’s being re-

trainable to do just that.             The most congruency between the two

cases is the failure of the claimants to take advantage of abundant

opportunities to present evidence of their own disabilities within

the definition of the respective plans.              Here, the district court

in actuality applied the clear error standard, while mislabeling it

the   abuse   of    discretion    standard    and,    at   the   same    time,   in

actuality assigned the burden of proof to the wrong party, when it

concluded that “[b]ased on the medical and work history before the

administrator, it was an abuse of discretion to conclude that

Hilton was not disabled under the Plan’s definition.”                    The very

most that court could have concluded without committing error was

that the plan administrator clearly erred in interpreting Hilton’s

admittedly scant evidence as being insufficient to meet his burden

of proof that he was disabled —— there being no burden on the plan

administrator to prove Hilton was “not disabled under the Plan’s

definition.”       But clear error will not carry the day when abuse of

discretion commands greater deference to the plan administrator.

      We are convinced first that the record evidence before the

claims    administrator,         and     additionally      before       the   plan

administrator, at the time discretion was exercised to conclude

                                         19
that Hilton failed to prove disability under the Plan’s definition,

demonstrated a rational exercise of discretion, not an abuse

thereof.    Even if she clearly erred in doing so, the claims

administrator carefully considered all that she had to go on and

found a rational nexus between those data and the purposes and

provisions of the Plan.      We are likewise convinced that the

explanation articulated by the administrators were sufficient to

demonstrate a rational connection between that evidence and the

determination of Hilton’s failure to prove qualifying disability to

support such a decision. Based on these conclusions, we hold that,

given such a rational relationship, there was nothing arbitrary or

capricious in the administrators’ actions and determinations, and

thus no abuse of discretion on the part of the plan administrator.

Consequently, the district court’s determination that there was

such abuse constitutes reversible error.

     4.    Right to Further Appeals

           Hilton’s second charge against the plan administrator was

that it erred in limiting him to only one appeal.      The district

court concluded that:

           In this case, . . . the administrator’s
           interpretation of the Plan’s right of appeal
           is correct. First, Ashland Oil has given a
           uniform construction to the Plan, consistently
           interpreting the Plan to allow only one
           appeal.    Moreover, the two letters that
           granted Hilton an extension on his first
           appeal emphasized that the first appeal is
           non-reviewable.
           Second, a fair reading of the Plan supports
           Ashland Oil’s interpretation . . . . the

                                 20
            complete description of the process for one
            appeal without mentioning a second appeal
            clearly implies that only one appeal is
            allowed.

     We have reviewed the arguments and citations of authorities on

this point as set forth in the briefs of Hilton’s counsel, and we

remain unconvinced that there was any error of fact or law in the

district court’s analysis and holding on the question of the number

of appeals or reconsiderations to which Hilton was entitled.

Indeed, we agree entirely with the district court’s reasons and

conclusions in this regard.

                                   III

                              CONCLUSION

     For the reasons set forth above, we respectfully disagree with

the district court’s determination that the plan administrator

abused its discretion in rejecting Hilton’s claim of permanent

disability within the definition of the Plan.          Our disagreement

stems primarily from what we perceive to be an impermissible

reversal of the burden of proof from Hilton, who was obligated to

submit sufficient medical evidence to the plan administrator to

prove disability, to the plan administrator, which the district

court obligated to find sufficient evidence that Hilton was not

disabled.     That   fundamental   error,   coupled   with   a   de   facto

(mis)application of the clear error standard in the guise of the

abuse of discretion standard of review of the plan administrator’s

determination, leaves us no choice but to reverse the abuse of


                                   21
discretion   holding   of   the   district   court   and   reinstate   the

determination of the plan administrator. On the other hand, we are

satisfied that the district court was correct in affirming the plan

administrator’s interpretation of the Plan’s limit of the number of

appeals to which a claimant is entitled to one.

     We therefore affirm the judgment of the district court to the

extent it held that disappointed claimants for long-term disability

benefits under the Plan are limited to one appeal; but we reverse

the judgment of the district court to the extent it held that the

plan administrator abused its discretion when it rejected Hilton’s

claim due to his failure to support his assertion of disability

with sufficient medical evidence.        In the absence of abuse of

discretion, the determination of the plan administrator must be

upheld, so we affirm the denial of Hilton’s application for long-

term disability benefits under the Plan.

AFFIRMED in part; REVERSED and RENDERED in part.




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