United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        February 14, 2007
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                       ))))))))))))))))))))))))))                Clerk

                             No. 05-20979

                       ))))))))))))))))))))))))))

IDA KEELE,

                 Plaintiff-Appellant,

     v.

JP MORGAN CHASE LONG TERM DISABILITY PLAN; LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON,

                 Defendants-Appellees.


             Appeal from the United States District Court
                  for the Southern District of Texas
                             No. H-04-0327



Before SMITH, BENAVIDES, and PRADO, Circuit Judges.

Per Curiam:*

     Plaintiff-Appellant Ida Keele (“Keele”) appeals a district

court order granting summary judgment to Defendants-Appellees JP

Morgan Chase Long Term Disability Plan (“JP Morgan”) and Liberty

Life Assurance Company of Boston (“Liberty”) (collectively,

“Defendants”). The district court concluded that Liberty, the



     *
       Pursuant to 5TH CIRCUIT 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that this opinion should not be published and is not precedent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 5TH CIRCUIT
RULE 47.5.4.

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plan administrator for JP Morgan, did not abuse its discretion by

denying Keele’s application for long-term disability benefits.

Because we agree that Liberty did not abuse its discretion, we

AFFIRM the decision of the district court.

              I. FACTUAL AND PROCEDURAL BACKGROUND

     Keele, an employee of Chase Manhattan/Texas Commerce Bank,

was a participant in short-term and long-term disability

insurance plans administered by Liberty. Keele initially applied

for short-term disability benefits in March 2001, claiming that

she had a “bone spur pinching nerves in [her] neck.” When those

benefits expired, she applied for long-term benefits in September

2001 and received interim payments while a final decision on her

claim was pending. In January 2002, Liberty denied Keele’s long-

term disability claim on the basis that her condition was not

“disabling,” as defined by the Liberty benefits policy. Under the

Liberty plan, long-term disability benefits are available to a

claimant who is “unable to perform all of the material and

substantial duties of [her] occupation on an Active Employment

basis because of an injury or sickness.” Liberty concluded that,

following two surgeries, Keele’s condition was stable, and she

was able to perform her duties as a “Currency Clerk Specialist.”

     Liberty informed Keele that she could request a review of

the denial if she did so within sixty days and “[i]nclude[d]

documentation such as medical treatment notes and diagnostic test



                                2
results that contradict those currently in [her] file, as well as

any other medical documentation” that would support her claim. On

February 13, 2002, Keele requested review of Liberty’s decision

to deny her benefits, claiming that Liberty had given inadequate

consideration to the opinion of her family doctor, Dr. Buescher,

that she was unable to work due to constant pain, as well as to

the opinions of several other of her doctors. However, Keele did

not include any new medical records or other documents in support

of her claim. On March 13, 2002, Liberty reminded Keele of the

necessity of supplying additional medical information and granted

her an additional thirty days in which to do so.

     Before the expiration of that deadline, Keele submitted to

Liberty additional records from two new doctors, Dr. Orellana and

Dr. Bessire, as well as records from her dentist, Dr. Taylor,

detailing treatment between December 2002 through April 2002. Six

weeks later, after the deadline expired, Keele submitted further

documentation from Dr. Buescher relating to her chronic facial

pain. On June 18, 2002, Liberty informed Keele that it had denied

her appeal. Liberty stated that there was insufficient medical

data “to support a degree of impairment or limitation of her

functional capacity, which would preclude [her] from the material

and substantive duties of [her] occupation as Currency Clerk

Specialist.” Liberty also stated that evidence revealed no

“conditions, such as trigeminal neuralgia or other specific

neurological condition to explain” her complaints of continued

                                3
pain.

     Eighteen months later, in December 2003, Keele sent another

set of medical records to Liberty in the hope of reviving her

claim. These record were from two other neurologists, Dr. Sharlin

and Dr. Briggs, who treated her from November 2002 to October

2003. Keele argued that these doctors had diagnosed her condition

as trigeminal neuralgia and that therefore Liberty should

reconsider its denial of her claim. Liberty refused Keele’s

request for an additional review. Subsequently, Keele filed suit

in the United States District Court for the Southern District of

Texas. Keele claimed that Liberty erred by refusing to consider

the new medical evidence she submitted and that Liberty abused

its discretion by denying her benefits claim.

     The district court referred the case to a magistrate judge

for pre-trial management under 28 U.S.C. § 636(b)(1)(A) and (B).

Thereafter, both Keele and the Defendants filed motions for

summary judgment. The magistrate judge filed a Memorandum and

Recommendation proposing that Keele’s motion be denied and the

Defendants’ be granted. Keele timely filed objections. On

September 27, 2005, the district court issued an Order Adopting

the Magistrate Judge’s Memorandum and Recommendation, thereby

granting summary judgment in favor of the Defendants. This appeal

by Keele followed.

             II. JURISDICTION AND STANDARD OF REVIEW

     This court has jurisdiction pursuant to 28 U.S.C. § 1291. We
                                4
review a district court’s grant of summary judgment de novo.

Dallas County Hosp. Dist. v. Assocs. Health & Welfare Plan, 

, 285 (5th Cir. 2002). Summary judgment is proper when

the pleadings, discovery responses, and affidavits show that

there is no genuine issue of material fact and that the moving

party is entitled to a judgment as a matter of law.    FED. R. CIV.

P. 56(c).   A dispute about a material fact is genuine if the

evidence is such that a reasonable fact-finder could return a

verdict for the non-moving party.     Anderson v. Liberty Lobby,

Inc., 

, 248 (1986).   When deciding whether there is a

genuine issue of material fact, this court must view all evidence

in the light most favorable to the non-moving party.     Daniels v.

City of Arlington, 

, 502 (5th Cir. 2001).

     Keele’s request is governed by the Employee Retirement

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

which authorizes federal court review of such benefit decisions.

See Gooden v. Provident Life & Acc. Ins. Co., 

, 332

(5th Cir. 2001). ERISA benefit plan decisions are reviewed under

a de novo standard unless the benefit plan gives the

administrator discretionary authority to determine eligibility

for benefits. Firestone Tire & Rubber Co. v. Bruch, 

,

115 (1989). Where, as the parties agree is the case here, the

administrator’s discretionary authority is clear under the terms

of the benefits plan, we review the administrator’s decision for

“abuse of discretion.” Ellis v. Liberty Life Assur. Co., 

262, 269 (5th Cir. 2004). “In applying the abuse of discretion

standard, we analyze whether the plan administrator acted

arbitrarily or capriciously.” Meditrust Fin. Servs. Corp. v.

Sterling Chems., Inc., 

, 214 (5th Cir. 1999). Thus

the decision to deny ERISA benefits must be “based on evidence,

even if disputable, that clearly supports the basis for its

denial.” Vega v. Nat’l Life Ins. Servs., Inc., 

, 299

(5th Cir. 1999)(en banc).

     Additionally, if the complaining participant shows that the

plan administrator has a conflict of interest, then judicial

review is less deferential than an ordinary abuse of discretion

review. 

Here it is not disputed that Liberty was

acting both as the plan administrator and the insurer with regard

to Keele’s claim. Accordingly, Liberty’s decisions are entitled

to less than full deference, in order to “neutralize any untoward

influence resulting from the conflict.” 

                            III. DISCUSSION

     On appeal, Keele argues that the district court erred in

concluding that there was no genuine issue of material fact

regarding whether Liberty abused its discretion by denying

Keele’s claim for long-term benefits.

     Keele claims that under this court’s holding in Vega, the

additional documentation that she submitted eighteen months after

her appeal was denied became part of the administrative record in


                                  6
the case, and that Liberty’s failure to review this material

indicated that its decision was not “fair and informed.” The

Defendants deny that this material has become part of the

administrative record and argue that Liberty was in no way

required to review it.

     This dispute raises an interesting question regarding the

reach of statements made by this court in Vega. There, we

addressed whether a party whose insurance claim had been denied

by a plan administrator could present new evidence to the

district court. We declared that:

          Before filing suit, the claimant’s lawyer can add
     additional evidence to the administrative record simply by
     submitting it to the administrator in a manner that gives
     the administrator a fair opportunity to consider it. . .
     . If the claimant submits additional information to the
     administrator, however, and requests the administrator to
     reconsider his decision, that additional information should
     be treated as part of the administrative record. . . .
     Thus, we have not in the past, nor do we now, set a
     particularly high bar to a party’s seeking to introduce
     evidence into the administrative record.
          We hold today that the administrative record consists
     of relevant information made available to the administrator
     prior to the complainant’s filing of a lawsuit and in a
     manner that gives the administrator a fair opportunity to
     consider it.

     These passages suggest that new evidence submitted by the

claimant becomes a part of the administrative record even if it

is submitted after the administrator has reached its final

decision. Read thusly, these passages conflict with prior cases

in which we indicated that the administrative record consisted of


                                 7
those documents before the administrator at the time the claims

decision was made. See, e.g., S. Farm Bureau Life Ins. Co. v.

Moore, 

, 102 (5th Cir. 1993); Bellaire Gen. Hosp. v.

Blue Cross Blue Shield, 

, 827 (5th Cir. 1996).1 This

interpretation of Vega also poses a number of practical problems,

some of which were nicely elucidated by the Eastern District of

Louisiana in Needham v. Tenet Select Benefit Plan, No. Civ.A. 02-

3291, 

, at *7 (E.D.La. Jan. 30, 2004). There, the

district court questioned:

     Does an administrator ipso facto abuse its discretion by
     refusing   to   reconsider   its   decision    after   the
     administrative appeal process is concluded? At what point,
     if any, may an administrator close its file and simply
     refuse to consider new evidence? If an administrator
     legitimately may take this position eight months after
     denying a claimant’s appeal, is it not inconsistent with
     the abuse of discretion standard of review for the Court
     to then judge the reasonableness of the denial in light of
     evidence submitted post hoc?

     The Defendants helpfully suggest that the time frame in

which a claimant can submit new evidence to the administrator is

limited by the language “in a manner that gives the administrator

a fair opportunity to consider it” from 

.

The Defendants contend that Keele’s documents, submitted eighteen

months after her claim was closed, were not submitted in “a


     1
      We do not mean to imply that these earlier decisions take
precedence over Vega, which is an en banc decision. We simply
point out that if Vega allows into the record evidence submitted
after the administrator has reached a final decision, this
holding implicitly alters what had been a settled point in our
jurisprudence.

                                8
manner that g[ave] the administrator a fair opportunity to

consider” them. This key language from Vega has not been

interpreted by this court, though the Defendants’ position has

support from at least one district court opinion. See Schaffer v.

Benefit Plan of Exxon Corp., 

, 809 (S.D. Tex.

2001) (suggesting that evidence submitted two years after a claim

was denied was not submitted “in a manner that gives the

administrator a fair opportunity to consider it”). Alternatively,

however, one could read this phrasing from Vega as referring to

the length of time between the claimant’s submission of the new

evidence and subsequent filing of suit in federal court. Such an

interpretation is consistent with the overriding concern of Vega,

which was to “encourage the parties to resolve their dispute at

the administrator’s 

.

     We need not decide this question of Vega’s precise

requirements today, because we conclude that the documents in

dispute do not change the disposition of the case. Indeed, the

district court considered the late-submitted documents “in an

abundance of caution,” and still determined that there was no

material issue of fact regarding whether Liberty had abused its

discretion. The district court found that Keele had failed to

produce evidence that her medical condition prevented a return to

her duties as a Currency Clerk Specialist, which included sitting

for up to six hours a day, data entry for up to seven hours, use



                                9
of fine finger dexterity for up to six hours, lifting items

weighing twenty-to-thirty pounds about five times per day, and

bending and reaching for thirty minutes a day. The district court

concluded that Keele had not produced sufficient documentation

evidencing her restricted physical capacity to establish her

disability. After careful review of the record, we agree with the

district court.2

     Statements by several of Keele’s doctors, as well as by

Keele herself, imply that Keele was able to perform many of the

duties required by her employment. For example, on March 31,

2001, Keele completed a form stating that she was capable of

sitting for fifteen hours per day, standing for two hours per

day, walking for fifteen minutes per day, and driving for two

hours per day. On October 26, 2001, Dr. Buescher indicated that

Keele had a functional capacity of Class 5 (incapable of minimum

activity). Two days later, however, Dr. Buescher completed a form

stating that Keele could lift up to ten pounds, could sit for

eight hours per day, could stand, and could walk, bend, and kneel

infrequently. On January 7, 2002, Dr. Mims, Keele’s surgeon,



     2
      Keele suggests that if Vega requires that the record
include the late-submitted documents, and Liberty refused to
review those documents, then Liberty’s decision was per se an
abuse of discretion, and summary judgment was improper. We
disagree with that logic, because the reviewing court’s task was
to assess Liberty’s June 2002 decision finally denying Keele’s
claim, not Liberty’s December 2003 decision to not review
additional documents.

                               10
signed a letter stating that he “found no basis precluding Ms.

Keele from returning to work at her own occupation as a currency

Clerk Specialist on a full time basis.”3

     The strongest evidence for Keele’s disability comes from the

above-mentioned October 26, 2001 report by Dr. Buescher and a

April 24, 2002 letter by the same doctor stating that Keele was

unable to perform the tasks required by her occupation and was

“unable to work” because she was “in pain all the time.” But Dr.

Buescher’s October 26, 2001 report was contradicted by his

written statements from two days later, and his April 24, 2002

letter came six months after he last had examined Keele.

Moreover, Dr. Buescher’s diagnoses were unaccompanied by

objective medical data.

     Keele points to Liberty’s statement in its June 2002 letter

that her evidence revealed no “conditions, such as trigeminal

neuralgia or other specific neurological condition to explain”

her complaints of continued pain. She argues that her

subsequently submitted documentation contains several diagnoses

of her condition as trigeminal neuralgia, thus requiring Liberty

to reverse its denial of her claim. The absence of a diagnosis,

however, was not Liberty’s sole reason for denying Keele’s

claim–-more significant was her failure to produce documentation


     3
      This letter was prepared by Liberty’s consulting
physician, Dr. Brown, after a conversation between her and Dr.
Mims on December 21, 2001.

                               11
of her physical limitations. The documents submitted late by

Keele do include a diagnosis of trigeminal neuralgia, but they do

not contain additional information concerning restrictions on her

ability to perform the duties of her occupation. Indeed, Keele’s

neurologist, Dr. Sharlin, noted in January 2003 that Keele was

happy with the current management of her trigeminal neuralgia.

     We therefore agree that Liberty’s decision to deny Keele’s

claim for long-term disability benefits was supported by

sufficient evidence to render that decision neither arbitrary nor

capricious. Keele has failed to show a material issue of fact

regarding whether Liberty abused its discretion.

                         IV. CONCLUSION

     For the foregoing reasons, we AFFIRM the order of the

district court granting summary judgment to the Defendants.

     AFFIRMED.




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