4444444444444444444444444444444444444444444444447 Patrick L. Gallagher v. Reliance Standard Life Insurance Company

Filed: October 24, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-2467
(CA-99-429-3-MU)
Patrick L. Gallagher,
Plaintiff - Appellee,
versus
Reliance Standard Life Insurance Company,
Defendant - Appellant.
O R D E R
The court amends its opinion filed September 25, 2002, as
follows:
On page 7, first full paragraph, line 12 -- the phrase “per-
form all the duties” is corrected to read “perform all the material
duties.”
On page 8, paragraph after indented material, lines 5-6 -- the
words “Gallagher’s duties” are corrected to read “Gallagher’s
material duties.”
On page 11, first paragraph, line 8 -- the phrase “each and
every duty” is corrected to read “each and every material duty.”

-- 1 of 20 --

-- 2 of 20 --

- 2 -
On page 16, first full paragraph, lines 4-5 -- the phrase
“each and every duty” is corrected to read “each and every material
duty.”
Entered at the direction of Judge Williams, with the
concurrence of Judge Gregory and Judge Stamp.
For the Court
/s/ Patricia S. Connor
Clerk

-- 3 of 20 --

Rehearing en banc denied and panel
rehearing granted for limited purpose
of amending opinion by order
filed 10/24/02

-- 4 of 20 --

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
PATRICK L. GALLAGHER,
Plaintiff-Appellee,
v. No. 01-2467
RELIANCE STANDARD LIFE INSURANCE
COMPANY,
Defendant-Appellant.
4444444444444444444444444444444444444444444444448
Appeal from the United States District Court
for the Western District North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-99-429-3-MU)
Argued: June 5, 2002
Decided: September 25, 2002
Before WILLIAMS and GREGORY, Circuit Judges, and
Frederick P. STAMP, Jr., United States District Judge for the
Northern District of West Virginia, sitting by designation.
____________________________________________________________
Reversed and remanded with instructions by published opinion. Judge
Williams wrote the opinion, in which Judge Gregory and Judge
Stamp joined.
____________________________________________________________
COUNSEL
ARGUED: Joshua Bachrach, RAWLE & HENDERSON, L.L.P.,
Philadelphia, Pennsylvania, for Appellant. Edward G. Connette, III,
LESESNE & CONNETTE, Charlotte, North Carolina, for Appellee.
____________________________________________________________

-- 5 of 20 --

OPINION
WILLIAMS, Circuit Judge:
Reliance Standard Life Insurance Company (Reliance) appeals the
district court's entry of summary judgment in favor of Patrick L. Gal-
lagher in this action for wrongful denial of benefits under the
Employee Retirement Income Security Act of 1974 (ERISA), 29
U.S.C.A. § 1001 et seq. (West 2001). The issues on appeal are (1)
whether the district court erred in applying an abuse of discretion
standard to Reliance's decision to deny benefits and (2) whether the
district court erred by reversing Reliance's decision to deny benefits
and entering summary judgment in Gallagher's favor. We conclude
that Reliance's decision to deny benefits to Gallagher is subject to de
novo review and uphold Reliance's decision under this standard of
review. Accordingly, we reverse the district court's entry of summary
judgment in Gallagher's favor and remand for entry of judgment in
Reliance's favor.
I.
Gallagher worked as a corporate officer and publisher for Goodwill
Publishing, Inc. (GWP) for 26 years. His job required three to four
hours a day of sedentary work, such as word processing, and some
international travel. Gallagher suffered on and off from back pain dur-
ing most of the time he was employed by GWP. In 1986, Gallagher
sought medical treatment for pain in his lumbar spine. When his con-
dition did not improve, he underwent a suction discectomy. The sur-
gery improved Gallagher's condition, but walking, standing, and
sitting remained difficult. In 1990, Gallagher began treatment at the
Key Biscayne Medical Clinic and eventually took a leave of absence
to enroll in a six-week rehabilitation program. During this time, Gal-
lagher began to suffer nerve pain in his neck and left arm and was
diagnosed with diffuse degenerative disc disease, disc herniation, and
spurring on the facets1 throughout his lumbar spine. In 1997, Gal-
lagher's cervical spine pain became "severe." (J.A. at 936.) Dr. Eis-
mont, a neurosurgeon, diagnosed Gallagher as suffering from arthritic
____________________________________________________________
1 A facet is small plane surface on the bone. Dorland's Illustrated Med-
ical Dictionary 642 (29th ed. 2000).
2

-- 6 of 20 --

changes and stenosis.2 Because of the pain caused by his chronic back
condition, Gallagher resigned from his job on May 2, 1998.
Gallagher is covered by GWP's long-term disability policy (the
Plan), an employee welfare benefit plan governed by ERISA and
funded by Reliance. GWP is the Plan Administrator, and Reliance is
a fiduciary with responsibility for making claims determinations. On
July 10, 1998, GWP forwarded Gallagher's disability benefit applica-
tion to Reliance. On February 2, 1999, Reliance denied Gallagher's
claim because it determined that his medical condition did not meet
the definition of total disability under the Plan. On February 25, 1999,
the Social Security Administration found Gallagher to be totally dis-
abled under the Social Security regulations. On June 3, 1999, Gal-
lagher requested Reliance to review the denial of his disability
benefits under the Plan and submitted additional materials to support
his claim. On October 13, 1999, Reliance, after conducting an inde-
pendent review, determined that denial of benefits was appropriate
based on Gallagher's failure to satisfy the definition of total disability.
Specifically, Reliance concluded that Gallagher could perform one or
more of the material duties of his regular occupation. Having
exhausted his administrative remedies, Gallagher initiated this ERISA
action in the United States District Court for the Western District of
North Carolina. The district court concluded that Reliance had abused
its discretion and entered summary judgment in favor of Gallagher.
Reliance filed a timely notice of appeal.
II.
We examine the district court's grant of summary judgment de
novo, applying the same legal test as the district court. Elliott v. Sara
Lee Corp., 190 F.3d 601, 605 (4th Cir. 1999). It is well-established
that a court reviewing the denial of disability benefits under ERISA
initially must decide whether a benefit plan's language grants the
administrator or fiduciary discretion to determine the claimant's eligi-
bility for benefits, and if so, whether the administrator acted within
the scope of that discretion. Feder v. Paul Revere Life Ins. Co., 228
____________________________________________________________
2 Stenosis is "an abnormal narrowing of a duct or canal." Dorland's
Illustrated Medical Dictionary 1698 (29th ed. 2000). In this case, it
refers to a narrowing of the vertebral canal.
3

-- 7 of 20 --

F.3d 518, 522 (4th Cir. 2000); see also Johannssen v. District No. 1
—Pacific Coast District, 292 F.3d 159, 168 (4th Cir. 2002) (explain-
ing that if the language of the plan grants the administrator or fidu-
ciary discretion to determine eligibility for benefits under the plan, the
reviewing court determines whether a denial of benefits was an abuse
of discretion).3 No specific phrases or terms are required in a plan to
preclude a de novo standard of review. Feder, 228 F.3d at 522 ("[I]f
the terms of a plan indicate a clear intention to delegate final authority
to determine eligibility to the plan administrator, then this Court will
recognize discretionary authority by implication."). The plan's inten-
tion to confer discretion on the plan administrator or fiduciary, how-
ever, must be clear. Sandy v. Reliance Standard Life Ins. Co., 222
F.3d 1202, 1207 (9th Cir. 2000) ("Neither the parties nor the courts
should have to divine whether discretion is conferred."). If a plan does
not clearly grant discretion, the standard of review is de novo. Feder,
228 F.3d at 524. Any ambiguity in an ERISA plan "is construed
against the drafter of the plan, and it is construed in accordance with
the reasonable expectations of the insured." Bynum v. Cigna Health-
care, Inc., 287 F.3d 305, 313-14 (4th Cir. 2002). Of course, because
de novo review is more rigorous, if a reviewing court upholds a bene-
fits decision under de novo review, it also would uphold it under a
deferential standard. Feder, 228 F.3d at 522 (explaining that under the
deferential standard, the reviewing court should uphold an administra-
tor's decision if it is reasonable, even if the court would have reached
a different conclusion).
With these principles in mind, we must determine whether the fol-
lowing language in the plan grants Reliance discretion to determine
Gallagher's eligibility for benefits: "We will pay a Monthly Benefit
if the Insured . . . submits satisfactory proof of Total Disability to us."4
____________________________________________________________
3 When a plan administrator or fiduciary with a conflict of interest is
vested with discretion, the deference normally given under the abuse of
discretion standard is reduced "to the degree necessary to neutralize any
untoward influence resulting from the conflict." Ellis v. Metropolitan
Life Ins. Co., 126 F.3d 228, 233 (4th Cir. 1997) (citing Bedrick v. Travel-
ers Ins. Co., 93 F.3d 149 (4th Cir. 1996)).
4 The Plan's insuring clause, in its entirety, reads as follows:
We will pay a Monthly Benefit if an Insured:
4

-- 8 of 20 --

(J.A. at 89.) There are two possible ways to interpret this language:
(1) that Gallagher must submit to Reliance satisfactory proof of his
disability or (2) that he must submit proof of his disability that is sat-
isfactory to Reliance.5 The former interpretation would require Gal-
lagher to submit to Reliance proof of a total disability that is
objectively satisfactory; to determine whether Gallagher met this
objective standard, we would review Reliance's denial of his claim de
novo. Feder, 228 F.3d at 523 (requirement that claimant submit writ-
ten proof of disability and "proof to verify the continuance of any dis-
ability" establishes an objective standard); see also Herzberger v.
Standard Ins. Co., 205 F.3d 327, 332 (7th Cir. 2000) (explaining that
merely requiring claimant to submit proof or satisfactory proof does
not create a subjective standard). The latter interpretation, however,
would require Gallagher to submit to Reliance proof of a total disabil-
ity that Reliance finds subjectively satisfactory; to determine whether
Gallagher met this subjective standard, we would review Reliance's
denial of his claim for abuse of discretion. Bernstein v. CapitalCare
Inc., 70 F.3d 783, 788 (4th Cir. 1995) (concluding that an agreement
gave discretion to the administrator because it provided that benefits
would be paid out only if the administrator determined that certain
conditions are met). We conclude that the language of the Plan does
not grant Reliance discretionary authority. First, as noted above, a
grant of discretion must be clear. Sandy, 222 F.3d at 1204 ("No matter
how you slice it, requiring a claimant to submit`satisfactory proof'
does not unambiguously confer discretion . . . ."); see also Perugini-
____________________________________________________________
(1) is Totally Disabled as the result of a Sickness or Injury
covered by this policy;
(2) is under the regular care of a Physician unless the
insured has reached the maximum point in his/her recovery
where medical services will no longer help him/her;
(3) has completed the Elimination Period; and
(4) submits satisfactory proof of Total Disability to us.
(J.A. at 89.)
5 At oral argument, Reliance stated that it has changed its policy lan-
guage to make it clear that it has discretion to determine coverage, but
this change has no effect on the disposition of this case.
5

-- 9 of 20 --

Christen v. Homestead Mortgage Co., 287 F.3d 624, 626 (7th Cir.
2002) ("Because it is not clear from the plain language which inter-
pretation is the correct one, . . . Reliance failed to reserve discretion-
ary authority."); Kinstler v. First Reliance Standard Life Ins. Co., 181
F.3d 243, 252 (2d Cir. 1999) ("[T]he needless ambiguity in the word-
ing of the policy should be resolved against First Reliance."). Second,
an insured employee reading this language would most likely inter-
pret "to us" as an indication of where to submit the proof, not as
granting Reliance discretion to determine whether the proof was satis-
factory. The prepositional phrase "to us," as written in the Plan, is
more naturally read as modifying "submit" rather than "satisfactory."6
____________________________________________________________
6 We recognize that the district court likely concluded that the Plan
granted Reliance discretion because this court, in an unpublished opin-
ion, determined that the same language vested Reliance with discretion-
ary authority. Wilcox v. Reliance Standard Life Ins., 1999 WL 170411,
at *2 (4th Cir. 1999) (unpublished). Some of our sister circuits also have
come to this conclusion. See, e.g., Yeager v. Reliance Standard Life Ins.
Co., 88 F.3d 376, 381 (6th Cir. 1996) (concluding that a policy with
identical wording gives Reliance discretion to determine eligibility). In
Yeager, the Sixth Circuit concluded that "[e]ven if the phrase `to us' is
interpreted as defining to whom the proof should be submitted, there is
no reason to believe that someone other than the party that received the
proof would make a determination regarding its adequacy." Id. at 381.
While it is true that Reliance must make a determination regarding
whether a claimant has submitted satisfactory proof, this "implies noth-
ing one way or the other about the scope of judicial review of [its] deter-
mination." Herzberger v. Standard Ins. Co., 205 F.3d 327, 332 (7th Cir.
2000). Rather, as discussed above, to confer discretionary powers the
plan language must "indicate a clear intention to delegate final authority
to determine eligibility." Feder v. Paul Revere Life Ins. Co., 228 F.3d
518, 523 (4th Cir. 2000). Final authority to make eligibility determina-
tions is not delegated by "the mere fact that a plan requires a determina-
tion of eligibility or entitlement by the administrator, or requires proof
or satisfactory proof of the applicant's claim, or requires both a determi-
nation and proof (or satisfactory proof)." Herzberger, 205 F.3d at 332.
Reliance's denial of Gallagher's benefits under the Plan, therefore, must
be reviewed de novo. See Perugini-Christen v. Homestead Mortgage
Co., 287 F.3d 624, 627 (7th Cir. 2002) (concluding that a policy with
identical wording does not confer discretion on Reliance); Walke v.
Group Long Term Disability Ins., 256 F.3d 835, 839-40 (8th Cir. 2001)
(same); Sandy v. Reliance Standard Life Ins. Co., 222 F.3d 1202, 1207
(9th Cir. 2000) (same); Kinstler v. First Reliance Standard Life Ins. Co.,
6

-- 10 of 20 --

Accordingly, we hold that the proper standard of review of Reliance's
denial of Gallagher's claim for benefits is de novo, and we must next
determine whether the proof of total disability he submitted to Reli-
ance was objectively satisfactory.
III.
A.
Under the Plan, an insured employee is totally disabled when, as
the result of an injury or sickness, the employee "cannot perform each
and every material duty of his/her regular occupation" during the
elimination period. (J.A. at 84.) An employee is unable to perform
"each and every duty" if he is unable to perform "all the duties" of
his regular occupation. Elliott v. Sara Lee Corp., 190 F.3d 601, 606
(4th Cir. 1999). The elimination period under the Plan is defined as
"90 consecutive days of Total Disability." (J.A. at 81.) Gallagher
claims his disability began on May 2, 1998. The elimination period,
therefore, ran from that date through August 1, 1998. Accordingly, to
qualify for disability benefits, Gallagher must submit objectively sat-
isfactory proof that he was unable to perform all the material duties of his reg-
ular occupation between May 2, 1998 and August 1, 1998. Elliott,
190 F.3d at 603 (noting that the burden of proving a disability is on
the employee).
Where "regular occupation" is not defined in the Plan, the fiduciary
must adopt an appropriate description of the claimant's occupation.
See Kinstler, 181 F.3d at 252 ("[T]he applicable definition of `regular
occupation' shall be a position of the same general character as the
insured's previous job, requiring similar skills and training, and
involving comparable duties." (citation omitted)). To this end, Reli-
ance requires the employer of the insured to give a description of the
employee's duties. In response to this inquiry, GWP described Gal-
lagher's job duties in the following manner:
____________________________________________________________
181 F.3d 243, 252 (2d Cir. 1999) (same). In any event, our conclusion
that Reliance properly denied Gallagher's claim would be the same under
either standard.
7

-- 11 of 20 --

The Employee was one of the Company's executives and
held the title of Vice Chairman and Publisher and had the
powers that are normally exercised by an executive officer
and performed services and duties for the Company consis-
tent with such position, with any additions to the scope of
the duties of said employment within the field of operations
of the Company as may be reasonably specified from time
to time by the Company or the Board of Directors. Without
in any way limiting the foregoing, the Employee engaged
primarily in the domestic and foreign wholesale operation of
the Company. The Employee also devoted time, energy and
skill during regular business hours to the promotion of the
Company's language skills and overseas operations.
. . .
Mr. Gallagher was in charge of international sales which
required frequent travel to Miami, Mexico, Ireland, Spain
and Germany. He was also in charge of publishing which
required editing, proofreading and acting as the liaison with
printers and others.
(J.A. at 390-91.) This job description fails to give much detail regard-
ing Gallagher's specific duties. Gallagher's duties as vice president,
for example, are simply defined as those "consistent with such [a]
position." (J.A. at 390.) Reliance therefore turned to the Department
of Labor's Dictionary of Occupational Titles (the DOT) to define Gal-
lagher's material duties as a publisher and vice president. Cf. DeLoatche v.
Heckler, 715 F.2d 148, 151 (4th Cir. 1983) ("[T]he Secretary [of
Health and Human Services] may rely on the general job categories
of the [DOT] as presumptively applicable to a claimant's prior
work."). Specifically, Reliance used the DOT occupation description
for the position of "editor" in the "printing and publishing industry"
and for the position of "vice president" in "any industry." (J.A. at 372-
76.) The DOT entry for editor describes the position as sedentary with
frequent reaching, handling, talking, hearing, and occasional finger-
ing. According to the DOT, an editor has the following occupational
duties:
1. Confers with executives, department heads, and editorial
staff to formulate policy, coordinate department activities,
8

-- 12 of 20 --

establish production schedules, solve publication problems,
and discuss makeup plans and organizational changes.
2. Determines theme of issue and gathers related material.
3. Writes or assigns staff members or freelance writers to
write articles, reports, editorials, reviews, and other material.
4. Reads and evaluates material submitted for publication
consideration.
5. Secures graphic material from picture sources and assigns
artists and photographers to produce pictures and illustra-
tions.
6. Assigns staff member, or personally interviews individu-
als and attends gatherings, to obtain items for publication,
verify facts, and clarify information.
7. Assigns research and other editorial duties to assistants.
8. Organizes material, plans overall and individual page lay-
outs, and selects type.
9. Marks dummy pages to indicate position and size of
printed and graphic material.
10. Reviews final proofs and approves or makes changes.
11. Reviews and evaluates work of staff members and
makes recommendations and changes.
[Duties] MAY ALSO INCLUDE:
1. May perform related editorial duties listed under EDITO-
RIAL ASSISTANT (print. & pub.).
2. May direct activities of production, circulation, or promo-
tion personnel.
9

-- 13 of 20 --

(J.A. at 372 (citing Dep't of Labor, Dictionary of Occupational Titles
(DOT), Code 132.037-022 (4th ed. 1991)).)
The DOT also describes the position of vice president as sedentary,
demanding frequent talking and hearing and occasional reaching, han-
dling, and fingering. A vice president has the following occupational
duties:
1. Participates in formulating and administering company
policies and developing long range goals and objectives.
2. Directs and coordinates activities of department or divi-
sion for which responsibility is delegated to further attain-
ment of goals and objectives.
3. Reviews analyses of activities, costs, operations, and fore-
cast data to determine department or division progress
toward stated goals and objectives.
4. Confers with chief administrative officer and other
administrative personnel to review achievements and dis-
cuss required changes in goals or objectives resulting from
current status and conditions.
(J.A. at 374 (citing DOT, Code 189.117-034).)
Gallagher argues that the material duties set forth in the DOT
descriptions for Gallagher's occupation "do not match" his actual job
and, thus, Reliance's analysis is "fatally flawed." (Appellee's Br. at
26.) He fails, however, to point to any specific duty in the DOT
description that was in some way different from his actual job duties.
Comparing GWP's description of Gallagher's job with the DOT
occupation description used by Reliance, we conclude that the latter
involves duties comparable to the former. For example, while GWP
states that Gallagher's job requires editing, proofreading, and acting
as a liaison with printers and others, the DOT describes these same
duties with more specificity, such as: "Marks dummy pages to indi-
cate position and size of printed and graphic material," and "[r]eviews
final proofs and approves or makes changes." (J.A. at 372 (citing
10

-- 14 of 20 --

DOT, Code 132.037-022).) The only significant discrepancy between
the job description adopted by Reliance and GWP's description of
Gallagher's actual job is the failure of the former to include the travel
requirement. This omission, however, is not a fatal flaw in Reliance's
analysis. A general job description of the DOT, to be applicable, must
involve comparable duties but not necessarily every duty. DeLoatche,
715 F.2d at 151. In this case, Gallagher must establish that he is
unable to perform each and every material duty of his occupation. Accord-
ingly, if he fails to demonstrate that he is unable to perform some
duties that do not require travel, establishing an inability to travel
would not save his claim.7 The description of Gallagher's duties
adopted by Reliance is therefore not inappropriate despite the omis-
sion of a travel requirement.8
Having adopted an objectively reasonable job description to define
Gallagher's material duties, Reliance then evaluated Gallagher's med-
ical condition against these duties. On December 8, 1998, Reliance
sent Dr. Aizcorbe, Gallagher's primary treating physician, the DOT
____________________________________________________________
7 In its October 13, 1999, response to Gallagher's request for review,
Reliance briefly addressed the travel requirement by making the follow-
ing observation: "Dr. Glaza's treatment records document that Mr. Gal-
lagher continued to travel on business during the months immediately
preceding the date he ceased working, and that [he] has continued to
travel for pleasure in the months since he ceased working." (J.A. at 105.)
For example, Dr. Glaza's records indicate that Gallagher traveled to
Havana, Cuba and New Orleans, Louisiana in 1998, prior to his resigna-
tion on May 2, 1998, and that he traveled to Jekyll Island, Georgia in
February 1999, after his resignation. There is no evidence, however, that
Gallagher traveled during the elimination period. We note that Gal-
lagher's travel after the elimination period would not necessarily defeat
his claim. To be eligible for benefits, Gallagher must demonstrate that he
could not perform each and every material duty of his regular occupation
during the elimination period. Once his eligibility is established, how-
ever, he would still be entitled to benefits if his condition improved to
a partial disability after the elimination period. (J.A. at 84 ("An insured
who is Partially Disabled will be considered Totally Disabled, except
during the Elimination Period.").)
8 Because Gallagher must demonstrate that he is unable to perform all
of his duties, some of which did not require travel, his inability to travel
would not, by itself, establish that he was totally disabled.
11

-- 15 of 20 --

occupation descriptions and asked him to highlight the duties from the
DOT description that Gallagher could not perform.9 Although Dr.
Aizcorbe noted several duties that Gallagher could not perform, he
affirmed that Gallagher could read and evaluate material, review final
proofs, and approve or make changes. Without further elaboration,
Dr. Aizcorbe wrote that Gallagher could direct but not coordinate
department activities. Under the duty involving marking dummy
pages, Dr. Aizcorbe wrote "maybe," and under the duty involving
planning page layouts, he wrote "depends." (J.A. at 345.) Finally, Dr.
Aizcorbe's response to the duty of directing activities of production,
circulation, or promotion personnel suggested that Gallagher could
perform the duty but that he would have to spend "some time" at it.
(J.A. at 345.) Thomas J. Hardy, a Vocational Specialist employed by
Reliance, also concluded that Gallagher could perform several duties
of his occupation. He explained that the medical evidence indicated
that Gallagher had a sedentary work capacity. Hardy also noted that
some of Dr. Aizcorbe's responses appeared to be inconsistent. For
example, Dr. Aizcorbe stated that Gallagher could review final proofs
but that he could not review analyses of activities. Both activities,
however, would appear to involve the same level of physical exertion.
Hardy concluded that Gallagher could perform the following duties:
direct and coordinate activities of his department, review analysis of
activities, confer with chief administrative officer, confer with execu-
tives, determine theme of issue, read and evaluate material, assign
staff members, assign research and other editorial duties, mark
dummy pages, review final proofs, and review and evaluate work. He
noted that these duties "can be performed with change of position at
will and are extremely sedentary in nature."10 (J.A. at 321.)
____________________________________________________________
9 Apparently, the DOT descriptions also were sent to Dr. Siva, who did
not timely respond. We note that in a one-page letter sent to Reliance
after Reliance had denied Gallagher's claim, Dr. Siva mentioned that he
reviewed Gallagher's job description. He failed to identify, however,
whether the job description he reviewed was GWP's or from the DOT.
Moreover, without any evaluation, explanation, or temporal context, Dr.
Siva simply concluded that "because of [Gallagher's] emotional status
secondary to his pain, as well as having to take multiple medications, he
will not be able to perform those duties." (J.A. at 280.)
10 There is other medical evidence in the record to support the finding
that Gallagher was capable of the sedentary duties of his occupation. For
12

-- 16 of 20 --

The remaining pieces of medical evidence that Gallagher relies on
to support his claim for disability benefits are inconclusive with
regard to whether Gallagher was incapable of performing each and
every occupational duty. For example, in a May 21, 1998 letter to Dr.
Aizcorbe, Dr. Glaza wrote that Gallagher's resignation was a good
decision because "his hectic schedule was only slowing down his
progress." (J.A. at 284 (emphasis omitted).) This statement does not
suggest that Gallagher was incapable of performing his occupational
duties, only that performing his duties slowed the progress of the chi-
ropractic treatment Dr. Glaza was providing him. Another example is
a June 1, 1999 letter by Dr. Frank Chevres, in which he cryptically
notes that Gallagher had "gone through a period" of partial disability
but was now "totally disabled." (J.A. at 286.) Without more informa-
tion regarding when Gallagher was in a "period of partial disability"
and what definition of "totally disabled" Dr. Chevres used, his opin-
ion is also inconclusive with regard to whether Gallagher was incapa-
ble of performing all of his occupational duties. Finally, Dr. Siva, in
a June 1, 1998 letter to Dr. Aizcorbe, wrote that Gallagher was "non-
functional" and that he in all probability would not be gainfully
employed. (J.A. at 482.) There is, however, no indication that Dr.
____________________________________________________________
example, Dr. Heinig, who examined Gallagher for his social security dis-
ability claim, determined that out of an eight-hour work day, Gallagher
was capable of sitting for about six hours by periodically alternating sit-
ting and standing to relieve pain or discomfort. While Dr. Heinig's report
demonstrates that Gallagher could not perform sedentary duties all day,
Gallagher's ability to perform material duties on a part-time basis makes
him, at best, partially disabled under the Plan and, thus, ineligible for
benefits. We recognize that there also is evidence in the record that sug-
gests Gallagher could not perform even sedentary tasks. For example,
when filling out the Physician's Statement portion of Gallagher's claim,
Dr. Aizcorbe stated that Gallagher was restricted to one hour of sitting
and one hour of standing a day. This evidence, however, is contradicted
by Dr. Aizcorbe's own statements regarding Gallagher's ability to per-
form certain duties of his occupation. Moreover, on June 3, 1999, Wil-
liam H. Haney, a vocational rehabilitation examiner, concluded that "Mr.
Gallagher has no vocational capacity to perform work even at the Seden-
tary level of exertion," however, he gave no indication that he was
describing Gallagher's condition during the elimination period. (J.A. at
272.)
13

-- 17 of 20 --

Siva was basing his opinions specifically on the Plan's definition of
total disability, in other words, whether Gallagher was incapable of
performing each and every occupational duty.
Gallagher argues that Reliance wrongly focused on his physical
ability to perform his previous job without considering the debilitat-
ing effect of his pain. It is clear from the record that due to his chronic
back condition, Gallagher has endured significant pain and discomfort
for over two decades. Whether Gallagher's pain made him totally dis-
abled, however, hinges on whether it made him incapable of perform-
ing all the duties of his occupation. Gallagher performed at least some
of his occupational duties up to May 2, 1998, the date he resigned and
the date he claims he became totally disabled under the Plan. Our
search of the record reveals no evidence that Gallagher's pain became
more severe on or after May 2, 1998. Indeed, there is some evidence
that Gallagher's condition was marginally improving prior to May 2,
1998. On January 28, 1998, for example, Dr. Siva described Gal-
lagher's neck condition as "asymptomatic" and recommended that no
action be taken with regard to his lower back. (J.A. at 424-25.) In
March 1998, Dr. Glaza, a Chiropractic Physician, noted that Gal-
lagher "did extremely well in Cuba," and was "feeling better." (J.A.
at 204.) Dr. Glaza also noted at that time that Gallagher had reduced
his pain medicine from three doses a day to two and planned to fur-
ther reduce his pain medicine to one dose a day. On May 1, 1998, the
day prior to Gallagher's resignation, Dr. Glaza noted that Gallagher
had just returned from New Orleans and was using a treadmill. Dur-
ing Gallagher's next visit, on May 8, 1998, Dr. Glaza did report that
Gallagher's lumbar spine was sore and that his cervical spine was
more unpredictable. There is no indication, however, that this pain
was more severe than his pain prior to May 2, 1998. Because Gal-
lagher could perform certain occupational duties prior to May 2, 1998
and has not presented evidence demonstrating that his condition
became more severe on or after May 2, 1998, we conclude that Gal-
lagher has not submitted objectively satisfactory evidence that he was
unable to perform each and every material duty of his occupation dur-
ing the elimination period.
B.
Gallagher makes two additional arguments to support his claim that
Reliance wrongly denied him disability benefits. First, Gallagher
14

-- 18 of 20 --

argues that substantial weight must be given to the Social Security
Administration's disability determination. There is no indication,
however, that the definition of "total disability" under the Plan in any
way mirrors the relevant definition under the regulations of the Social
Security Administration. Cf. Elliott, 190 F.3d at 607 (concluding that
the Social Security standard is not analogous to a plan standard under
which an employee is disabled if she is unable to engage in "each and
every occupation or employment for wage or profit for which . . . she
is reasonably qualified by education, training or experience"). Under
the Plan, Gallagher is totally disabled only if he is unable to perform
all the duties of his past occupation, while under the Social Security
Administrator's regulations, Gallagher is disabled if he is unable to
"engage in any substantial gainful activity . . .." 42 U.S.C.A.
§ 423(d)(1)(A) (West 1991). Under the latter definition, an ability to
do part-time work may not preclude a finding of disability. See Kelley
v. Apfel, 185 F.3d 1211, 1214-15 (11th Cir. 1999) (raising the issue
of whether a claimant is entitled to benefits even though he is capable
of working on a part-time basis but declining to resolve the issue).
Under the Plan, if an employee can perform the duties of his regular
occupation on a part-time basis, he is partially disabled. An employee
is not eligible for benefits if he was partially disabled during the elim-
ination period. Moreover, under the standard used by the Social
Security Administrator, Gallagher's disability began on December 10,
1997. (J.A. at 117.) Gallagher did not become totally disabled under
the Plan on this date because he continued to perform occupational
duties until his resignation on May 2, 1998. The social security dis-
ability standard clearly differs, therefore, from the definition of total
disability under the Plan. Accordingly, there is "no obligation to
weigh the agency's disability determination more favorably than other
evidence." Elliott, 190 F.3d at 607.
Second, Gallagher argues that Reliance did not give sufficient
weight to others who determined that he was totally disabled. For
example, Gallagher claims that a letter from Father John P. Bradley,
GWP's Chairman of the Board, stating that Gallagher was disabled,
represents the determination of the plan administrator and therefore
is entitled to the same deference as the determination of Reliance, the
fiduciary. Gallagher admits in his complaint, however, that under the
Plan, Reliance has the sole authority to make determinations regard-
15

-- 19 of 20 --

ing benefits.11 Moreover, we find no provision in the Plan that sug-
gests that GWP retained any decision-making authority. We therefore
conclude that even if Bradley's letter represents a determination by
GWP, it should be treated no differently than the other evidence in the
record.12 Because we conclude that Gallagher failed to submit objec-
tively satisfactory proof that he was totally disabled, we hold that
Reliance properly denied Gallagher's claim for disability benefits.13
IV.
In summary, our de novo review of Reliance's denial of Gal-
lagher's claim for disability benefits reveals that Gallagher failed to
submit, as required under the Plan, objectively satisfactory proof of
a disability that made him incapable of performing each and every material
duty of his occupation. We therefore reverse the district court's grant
of summary judgment in Gallagher's favor and the award of attor-
ney's fees, and remand for entry of judgment in Reliance's favor.
REVERSED AND REMANDED WITH INSTRUCTIONS
____________________________________________________________
11 We recognize that GWP's dissatisfaction with the coverage of its
employees under the Reliance Plan has led it to terminate its relationship
with Reliance. We are bound, however, to apply the terms of the Plan
under which Gallagher is covered.
12 Gallagher also asks us to consider the Declaration of Richard G.
Hoefling, GWP's general counsel and corporate secretary, which was
created to support Gallagher's motion for summary judgment and thus is
not part of the administrative record. Absent a finding of exceptional cir-
cumstances by the district court, a court conducting de novo review of
ERISA benefits determinations should limit its review to the evidentiary
record that was presented to the plan administrator or fiduciary. Quesin-
berry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1026-27 (4th Cir. 1993)
(en banc). Because Gallagher made no contention to the district court
that such an exceptional circumstance exists, we will only consider evi-
dence in the administrative record.
13 Because Gallagher is not a prevailing party, his request for attorney's
fees must be denied. Martin v. Blue Cross & Blue Shield of Va., Inc., 115
F.3d 1201, 1210 (4th Cir. 1997) ("[O]nly a prevailing party is entitled to
consideration for attorneys' fees in an ERISA action.").
16

-- 20 of 20 --