EDITH CLEMENT, Chief Judge
Before the Court is defendant's motion for summary judgment as to plaintiff's ERISA claim. For the reasons set forth below, defendant's motion is GRANTED.
BACKGROUND
Plaintiff filed suit on September 24, 1996 alleging, in part, that defendant violated the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. BellSouth Communications Inc. ("BellSouth") has an established Short Term Disability Plan (the "Plan") to provide benefits to employees for limited periods of time due to accidents or illness. To obtain Short Term Disability ("STD") benefits under the Plan, an employee must have a "disability" that makes the employee:
unable to perform any type work. . . . Any type of work includes the [employee's] regular job with or without accommodations, any other Participating Company job
(regardless of availability) with or without accommodations, or temporary modified duties.
Section 2, Short Term Disability Plan.
The Plan is administered and maintained pursuant to ERISA. BellSouth has delegated the day-to-day administration of the Plan to the Employee's Benefit Claim Review Committee ("EBCRC"). The EBCRC's duties are, in turn, delegated to an administrator, Nancy Carlisle, who is authorized to grant or deny initial claims for benefits under the Plan. Under the Plan, the administrator has exclusive and final authority to interpret the provisions of the plan and to determine eligibility. The denial of a claim may be appealed to the EBCRC.
Plaintiff worked for BellSouth from 1971 until his termination for his failure to return to work after the suspension of his STD benefits. Plaintiff initially absented himself from work on January 9, 1995 after allegedly injuring his arm and back in a car accident in early January 1995. Dr. Morvant initially examined plaintiff and indicated that he could return to work with restrictions. After requesting Dr. Morvant's examination notes and confirming with Dr. Morvant his medical report which permitted plaintiff to return to work with restrictions, plaintiff's case manager told plaintiff that he was not eligible for STD benefits. On January 16, 1995, plaintiff called the Benefits Office to inform it that an MRI had been scheduled for January 17th. The case manager requested the doctor's examination notes and a copy of the MRI results.
On January 17, 1997, the Benefits Office received copies of the doctor's examination notes and authorized benefits through January 23, 1995. The Benefits Office notified plaintiff that his benefits would not continue beyond that date if the 1/17/95 MRI results came back negative. Based on the MRI results, Dr. Morvant referred plaintiff to Dr. McKowen, a neurosurgeon, for an examination on January 23, 1995. Plaintiff called the Benefits Office on January 24, 1997 with this information and also informed it that Dr. McKowen had diagnosed a herniated disc, had recommended three weeks off from work and would fax to the Benefits Office his examination notes. Upon receiving these medical reports, the case manager approved STD benefits for three more weeks until February 12, 1995 and set a return to work date of February 13, 1995.
Plaintiff did not return to work on February 13, 1995. When the case manager telephoned plaintiff to check on his status, he indicated that he had another appointment scheduled with Dr. McKowen for the following day. The case manager told plaintiff that his benefits expired the prior day and that until additional medical reports that supported disability benefits arrived, the STD benefits would remain suspended. The case manager indicated several times to plaintiff and/or his wife that additional medical reports were needed to reinstate benefits. On February 24, 1995, the Benefits Office received additional examination notes from Dr. McKowen. These notes indicated that surgery was scheduled for March 8, 1995. The case manager reinstated benefits through the date of surgery. Benefits were extended to April 18, 1995. On April 12, 1995, the case manager told plaintiff that he needed to return to work after the suspension of benefits, that all of the doctor's restrictions (e.g. no lifting, stooping, bending) would be accommodated by sedentary work and that no further benefits would be forthcoming after April 18th without medical reports which supported total disability. The Benefits Office suspended STD benefits on April 19, 1995.
On April 28, 1995 the Benefits Office received additional doctor's examination notes. On May 1, 1995, Dr. Durham, a company medical consultant, recommended that no additional benefits should be paid after April 19, 1995. Dr. Durham concluded that plaintiff's subjective complaints of pain and discomfort, without any other objective evidence, did not support total disability. The case manager informed plaintiff of Dr. Durham's recommendation. After receiving another letter from Dr. McKowen on May 4, 1995, the Benefits Office again reviewed plaintiff's medical file. On May 5, 1995, Dr. Jennings, a company medical consultant, recommended that plaintiff undergo an independent medical examination ("IME"). On May 15, 1995, the case manager told plaintiff that all prior medical reports would be sent to the IME doctor before the IME. On May 19, 1995, the Benefits Office received a letter from plaintiff's attorney who requested that the STD benefits be reinstated. Dr. Jennings again reviewed the file and recommended that benefits be continued until the completion of the IME. The IME was scheduled for May 22, 1995, but was postponed to be re-set with a different IME doctor.
After receiving an updated MRI result on May 31, 1995, Dr. Jennings again reviewed the medical reports and recommended the continuation of STD benefits until the rescheduled IME took place. On June 13, 1995, the case manager told plaintiff that the new IME would be on July 18, 1995 and told him to bring his x-ray films to the IME. On July 17, 1995, the Benefits Office faxed plaintiff's medical reports to the IME doctor, Dr. Gorbitz. Plaintiff received an epidural injection for pain a few days prior to the IME. On July 26, 1995, the case manager received Dr. Gorbitz's IME report. Dr. Gorbitz indicated that plaintiff could not perform certain tasks listed on his job description of service technician. Specifically, Dr. Gorbitz determined that plaintiff could not do items Nos. 14, 16 and 18; respectively, "Works in attics, basements, crawl spaces and other similar places"; "Climbs poles, ladders, and works aloft with tools"; and "Lifts and moves loads up to 120 pounds".
On July 28, 1995, Dr. Jennings determined that plaintiff's medical reports, including the IME, did not preclude all work and recommended light duty work with restrictions. The case manager left two messages for plaintiff on that date and another message on July 31, 1995 each of which indicated that benefits would be cut off on July 31, 1995. Plaintiff did not return any of these calls. Nor did plaintiff return to work on July 31, 1995. On August 10, 1995, the Benefits Office received another letter from plaintiff's attorney demanding reinstatement of the STD benefits.
On August 21, 1995, the Benefits Office received additional office notes. Also on August 21, 1995, the case manager requested BellSouth security to monitor plaintiff's activities. A two day surveillance revealed plaintiff picking up a garden hose, driving to the store and carrying groceries. On August 22, 1995, plaintiff's case manager and Nancy Carlisle, the Plan administrator, reviewed plaintiff's file and agreed with the company medical consultant that plaintiff's medical records did not support total disability. On August 23, 1995, plaintiff's manager spoke with the case manager who explained the reasons for denying total disability and indicated that any further medical information would be reviewed and that plaintiff could work part time light duty.
On August 29, 1995 the case manager spoke with plaintiff who stated that his doctor had told him not to return to work under any circumstances. Plaintiff also stated that he had had an adverse reaction to his epidural injection on August 24, 1995. On August 30, 1995, Nancy Carlisle approved benefits for two days (8/24-25) for the reaction to the epidural injection. After review of another MRI result received on September 13, 1995, Nancy Carlisle determined that the medical reports did not support total disability. A termination date of September 26, 1995 was set. On September 19, 1995, Dr. Jennings again reviewed the medical reports and again concluded that they did not preclude all work for plaintiff. On October 4, 1995, the administrator reviewed the claim and denied benefits. The administrator based her decision on the entire administrative record including the report of the IME doctor who stated that the evidence did not support "a level of impairment that would have prevented all work." On December 19, 1995, the Benefits Office received additional letters from plaintiff's attorney along with doctor's notes and excerpts from Dr. McKowen's deposition in another personal injury suit. Dr. Burnham again reviewed plaintiff's file and concluded "In my opinion, we do not have adequate objective data to support total disability. With my experience in chronic pain, I am concerned that a significant factor in this employee's continued complaints of pain is his chronic use of narcotics and am also concerned about secondary gain issues." On February 1, 1996, the EBCRC affirmed the denial of benefits.
Defendant now moves for summary judgment contending that the denial of the plaintiff's claim for benefits under the Plan was not an abuse of discretion.
ANALYSIS
A party is entitled to summary judgment upon a showing that no genuine issue as to any material fact exists and that the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247, 106 S.Ct. 2505, 2510 (1986);Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992); Fed.R.Civ.Proc. Rule 56(c). In making its determination as to whether summary judgment is appropriate, the Court must draw all justifiable inferences in favor of the non-moving party.Anderson, 477 U.S. at 255; Oliver Resources PLC v. International Finance Corp., 62 F.3d 128, 130 (5th Cir. 1995). To oppose a motion for summary judgment, the non-movant cannot rest on mere allegations or denials but must set forth specific facts showing that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 321-22, 106 S.Ct. 2548, 2552-53 (1986); Floors Unlimited, Inc. v. Fieldcrest Cannon, Inc., 55 F.3d 181, 184 (5th Cir. 1995); Rule 56(e). A material fact is any fact "that might affect the outcome of the suit under the governing law."Anderson, 477 U.S. at 248. If the opposing party bears the burden of proof at trial, the moving party does not have to submit evidentiary documents to properly support its motion, but need only point out the absence of evidence supporting the essential elements of the opposing party's case. Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991).
When reviewing a determination made by an ERISA plan administrator, the Court applies an abuse of discretion standard. Pierre v. Connecticut General Life Insurance Co., 932 F.2d 1552, 1562 (5th Cir. 1991); Sweatman v. Commercial Union Insurance Co., 39 F.3d 594, 597-98 (5th Cir. 1994). Under the abuse of discretion standard, the Court reviews the administrator's decision to determine if substantial evidence exists in the administrative record to support the decision. Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Girling Health Care, Inc. v. Shalala, 85 F.3d 211, 215 (5th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). In conducting its review, the Court is limited to the evidence presented to the administrator at the time the final decision was made. The Court cannot consider evidence that was not before the administrator. Southern Farm Bureau Life Insurance Co. v. Moore, 993 F.2d 98, 102 (5th Cir. 1993). The Court's role in reviewing the administrator's decision is a limited one. The Court may not conduct a de novo review and substitute its judgment for that of the administrator. See Denton v. First National Bank of Waco, 765 F.2d 1295 (5th Cir. 1985).
The abuse of discretion standard is basically the equivalent of the arbitrary or capricious standard. Wildbur v. Arco Chemical Co., 974 F.2d 631, 635 n. 7 (5th Cir. 1992) (no substantive difference between "abuse of discretion" and "arbitrary and capricious" standards).
In opposing summary judgment, plaintiff does not claim that he failed to receive a "full and fair review" of his claim as required by ERISA, 29 U.S.C. § 1133(2), nor does he contest that the Court should review the administrator's decision by an abuse of discretion standard. Instead, plaintiff essentially urges the Court to re-weigh the evidence and to place more emphasis on Dr. McKowen's recommendations that plaintiff not work. See Mem. Opp. at 4 ("BellSouth totally ignored and/or failed to give the proper weight and deference to the opinions of the treating physician, Dr. McKowen."); Id. Mem. Opp. at 6 ("administrator abused its discretion in not according more weight to the objective findings of" Dr. McKowen). In support of his argument, plaintiff has submitted the examination of notes of Dr. McKowen which had already been submitted by defendant as part of the administrative record; the deposition testimony of Dr. Gorbitz which took place after the administrator's decision; and the deposition testimony of Dr. McKowen of which only limited excerpts were before the administrator when she made her decision. Plaintiff's opposition contains no legal authority in support of any of his arguments.
As discussed above, the Court's singular role in reviewing an administrator's decision under the abuse of discretion standard is to determine whether or not substantial evidence exists to support the administrator's decision. The Court cannot, as plaintiff urges, re-weigh the evidence before the administrator. The Court disagrees with plaintiff's statement that the administrator completely ignored Dr. McKowen's recommendations that plaintiff not work. The administrator repeatedly asked for Dr. McKowen's examination notes and reviewed plaintiff's medical history each time additional medical information was received. When the medical reports did not support total disability, the administrator denied STD benefits. Whenever plaintiff submitted additional medical records from Dr. McKowen that raised a question as to plaintiff's ability to return to work, the administrator reinstated the STD benefits. This process continued until plaintiff's IME by Dr. Gorbitz. At that time, the administrator determined, after consultation with its medical consultant and a review of all of the medical records, that plaintiff's subjective complaints of pain did not support total disability. At no time did plaintiff submit any objective evidence in support of his entitlement to STD benefits which was ignored by the administrator. The administrator has the discretion to weigh differing medical opinions and did not abuse its discretion. See Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 380 (7th Cir. 1994) (denial of benefits not arbitrary and capricious when "decision simply came down to a permissible choice between the position of . . . [the] independent medical consultant, and the position of [plaintiff's physicians.]");Finster v. Metropolitan Life Ins. Co., 927 F.Supp. 201 (N.D. Tex. 1996) (no abuse of discretion to deny benefits based on insufficient objective evidence in file to support claim of total disability).
Substantial evidence existed for the administrator's decision. The administrator relied on the findings of an independent medical examination, the recommendations (after repeated re-evaluations of plaintiff's medical reports) of two medical consultants and the lack of any objective findings by Dr. McKowen that supported STD benefits beyond July 31, 1995. The administrator did not abuse its discretion in terminating plaintiff's STD benefits. For the reasons set forth above,
Excepting plaintiff's reaction to the epidural injection.
IT IS ORDERED that defendant's motion for summary judgment as to plaintiff's ERISA claim is GRANTED.