Judy Killen v. Reliance Stnrd Life Ins Co. ( 2015 )

Case: 14-10052 Document: 00512894113 Page: 1 Date Filed: 01/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-10052 January 8, 2015
Lyle W. Cayce
JUDY B. KILLEN, Clerk
Plaintiff-Appellant,
v.
RELIANCE STANDARD LIFE INSURANCE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Before STEWART, Chief Judge, OWEN, Circuit Judge, and MORGAN, District
Judge. ∗
CARL E. STEWART, Chief Judge:
Plaintiff-Appellant Judy Killen (“Killen”) worked as an ultrasound
technician for Covenant Health Systems (“Covenant”) beginning in 2002. She
ceased working in March 2009 due to neck, shoulder, and upper back pain. She
was awarded 24 months of benefits from Covenant’s long-term disability
insurance plan, which Defendant-Appellee Reliance Standard Life Insurance
Company (“Reliance Standard”) administered. After three internal decisions
by Reliance Standard rejecting Killen’s request for extended long-term
disability benefits, she brought suit in federal court. The district court held
∗
District Judge of the Eastern District of Louisiana, sitting by designation.
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that Reliance Standard did not abuse its discretion in finding that Killen could
perform sedentary work, and granted summary judgment to Reliance
Standard. For the reasons discussed herein, we AFFIRM.
I. Factual and Procedural Background
Killen worked for Covenant from 2002 until March 2009, when she
claimed that neck, shoulder and upper back pain made it too difficult for her
to continue. Reliance Standard administered Covenant’s long-term disability
plan (the “Plan”)—which is governed by the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq.—and also paid benefits
under the Plan if it found an employee disabled.
Killen collected benefits from June 2009 to June 2011. During this time,
Killen separately qualified for Social Security disability benefits. To continue
receiving benefits under the Plan after two years, a claimant must be “totally
disabled” such that she is incapable of performing the material duties of any
occupation for which she is qualified by way of education, training, or
experience. Under the contract, an insured is totally disabled if “due to an
Injury or Sickness he or she is capable of only performing the material duties
on a part-time basis or part of the material duties on a Full-time basis.”
At the outset, Killen’s primary care physician—Dr. Steven Crow (“Dr.
Crow”)—treated her. Dr. Crow treated Killen on over twenty separate
occasions over the next four years and addressed a variety of maladies she
experienced beginning in late 2008. In August 2010, Killen seriously injured
her right shoulder by exacerbating an apparently pre-existing tear in the
rotator cuff. Dr. Crow found in September 2010 that Killen “had severe pain
in the shoulder since that time,” and that she was experiencing “[s]hooting pain
towards her neck.” Shortly thereafter, Dr. Crow referred her to Dr. Kevin
Crawford (“Dr. Crawford”), an orthopedic surgeon who determined in October
2010 that Killen had a “high-grade full-thickness rotator cuff tear” in her right
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shoulder. The tear was further corroborated by a radiologist’s report. In a
follow-up appointment in January 2011, however, Dr. Crawford found that
Killen’s “function is good, even though she has some discomfort.”
In May 2011, Reliance Standard’s internal vocational staff—evaluating
the reports outlined above after Killen requested continued benefits—
performed a residual employability analysis and listed five sedentary
occupations appropriate for Killen. Consequently, Reliance Standard
determined that, while Killen could no longer work as an ultrasound
technician, she “appear[ed] capable of sedentary work activity.” Reliance
Standard thereafter decided to discontinue Killen’s benefits.
This first denial apparently crossed in the mail with additional
documents Killen sent to Reliance Standard, among them a treatment report
from Dr. Crow and a letter from Dr. Crawford. Dr. Crow’s letter noted Killen’s
“severe anxiety.” Dr. Crawford’s June 2011 letter, however, is the subject of
dispute by the parties and is ambiguous about Killen’s condition. He wrote
that Killen was “reasonably functional despite the findings on MRI,” but
elaborated that “[w]hen I say functional, I mean that she still can get by with
activities of daily living and can get her hand to her mouth and fix the back of
her hair to some extent.” Reliance Standard evaluated these additional
documents apparently as a courtesy; it would otherwise have had to open up a
more probing internal appeal. The company again denied continued coverage.
Subsequently, through her attorney, Killen filed an internal appeal with
Reliance Standard, relying on an August 2011 letter from Dr. Crow that
repeatedly emphasized how she was “incapable of holding down a job” due to
her medical issues. At Reliance Standard’s urging, she submitted to an in-
person evaluation and independent review conducted in February 2012 by Dr.
Mary Burgesser (“Dr. Burgesser”), a physical medicine and rehabilitation
specialist. Dr. Burgesser, while crediting Killen’s chronic, irreparable right
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shoulder pain and acknowledging Dr. Crawford’s diagnosis, concluded in a
detailed report that the injury did not prevent her from performing sedentary
work. A subsequent (second) residual employability analysis conducted in
March 2012 by Reliance Standard, this time taking into account Dr.
Burgesser’s report, came to a similar conclusion as the first: Killen was capable
of performing sedentary work in at least three alternative occupations.
Relying on these reports, Reliance Standard denied Killen’s appeal in March
2012. In its letter, Reliance Standard noted that Killen had been receiving
disability benefits from the Social Security Administration (“SSA”)—benefits
which offset Reliance Standard’s own obligations to Killen—but explained that
the SSA may have used a different standard in evaluating benefits decisions
and also did not have Dr. Burgesser’s report when it awarded Killen benefits.
Nearly four months later, Killen sought to supplement the record with a
letter from Dr. Crow adhering to the contents of his August 2011 letter: he still
believed, he wrote, that Killen was “unable to work due to her medical issues.”
Reliance Standard responded, notifying Killen that it had closed her file and
would not supplement it with the letter.
After Killen exhausted her administrative appeals, she filed suit in
August 2012 in federal court under 29 U.S.C. § 1132(a)(1)(B). In December
2013, the district court granted summary judgment to Reliance Standard.
Killen timely appealed, arguing that Reliance Standard: (1) lacked
substantial evidence supporting its denial; (2) failed to give Killen a full and
fair review of her claim; (3); issued a decision tainted by a conflict of interest
because it both administers and pays benefits; and (4) inappropriately refused
to allow Killen to introduce the letter from Dr. Crow after it made a final
decision to terminate her benefits.
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II. Standard of Review
Review of summary judgment decisions in the ERISA context is de novo,
and we apply the same standard as the district court. Schexnayder v. Hartford
Life & Accident Ins. Co., 600 F.3d 465, 468 (5th Cir. 2010). Because the Plan
gave Reliance Standard discretion to determine benefit eligibility as well as to
construe the Plan’s terms, the court reviews Reliance Standard’s denial under
the Plan for abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489
U.S. 101, 115 (1989); Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 246
(5th Cir. 2009). “A plan administrator abuses its discretion where the decision
is not based on evidence, even if disputable, that clearly supports the basis for
its denial.” Holland, 576 F.3d at 246 (internal quotation marks and citations
omitted). “If the plan fiduciary’s decision is supported by substantial evidence
and is not arbitrary and capricious, it must prevail.” Ellis v. Liberty Life
Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004).
Killen argues in her briefs repeatedly that the summary judgment
standard requires that the evidence and inferences drawn from that evidence
be viewed in the light most favorable to her since she is the nonmovant. She
points to cases reciting the boilerplate language of the summary judgment
standard. However, she misapprehends the nature of appellate review of
summary judgment decisions on ERISA benefits cases where the plan at issue
vests discretion, as this one does, in a plan administrator. 1 In that case, “[t]he
fact that the evidence is disputable will not invalidate the decision; the
evidence need only assure that the administrator’s decision fall [sic]
somewhere on the continuum of reasonableness—even if on the low end.”
1The parties do not dispute that the Plan vests discretionary authority with Reliance
Standard. The Plan states that Reliance Standard “has the discretionary authority to
interpret the Plan and the insurance policy and to determine eligibility for benefits.”
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Porter v. Lowe’s Cos., Inc.’s Bus. Travel Acc. Ins. Plan, 731 F.3d 360, 363–64
(5th Cir. 2013) (internal quotation marks and citation omitted).
The case on which Killen primarily relies, Baker v. Metropolitan Life
Ins. Co., 364 F.3d 624 (5th Cir. 2004), is inapposite. While Baker does explain
that appellate courts review district court decisions in the ERISA context de
novo and draw all inferences in favor of the nonmovant, id. at 627–28, Killen’s
selective citation to the case leaves out Baker’s later clarification: “when an
administrator has discretionary authority with respect to the decision at issue,
the standard of review should be one of abuse of discretion.” Id. at 627. A court
must “give deference to the decision of the plan administrator and may not
substitute its judgment for the decision of the fiduciary.” 1A Couch on Ins. §
7:59 (3d ed. 2014).
III. Discussion
A.
Killen first challenges the district court’s finding that substantial
evidence supported the plan’s denial of benefits. Substantial evidence is “more
than a scintilla, less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id.
(internal quotation marks and citation omitted). Killen claims that the Plan
language requires Reliance Standard to show that she can perform all of the
job duties of a sedentary vocation on a full-time basis before discontinuing
benefits. While it might have shown she could perform sedentary work, she
argues, Reliance Standard never showed she could do so full time.
Additionally, she claims the district court misconstrued the medical evidence
and ignored objective documentation of her pain.
“[M]ost disputed claims for disability insurance benefits are awash in a
sea of medical evidence, often of contradictory nature,” 10A Couch on Ins. §
147:33, and this case is no different. Indeed, counsel for Killen admitted as
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much at oral argument. Courts frequently hear cases, like this one, where the
plaintiff’s own treating physicians generally support a finding of disability and
the defendant’s vocational specialists and independent medical examiners
disagree.
In Holland, for example, a former paper machine specialist who had
experienced a heart attack sought long-term disability benefits. See 576 F.3d
at 243. The Plan’s language closely tracked the applicable language in this
case. See id. at 244. The employee’s primary care physician equivocated, but
supported a finding of total disability, and a specialist’s statements about his
health were ambiguous: the specialist noted that the plaintiff had serious
airway damage, but was improving. Id. The administrator had a third and
fourth doctor conduct a paper review of the medical records, and a fifth doctor
conducted a physical examination: all three agreed that the employee was not
totally disabled. See id. at 244–45. The administrator never consulted a
vocational expert. Id. at 249. The internal claim for benefits was denied twice.
This court held that there had been no abuse of discretion; the existence of
contradictory evidence, the court noted, “does not . . . make the administrator’s
decision arbitrary. Indeed, the job of weighing valid, conflicting professional
medical opinions is not the job of the courts; that job has been given to the
administrators of ERISA plans.” Id. at 250 (internal quotation marks and
citation omitted); accord Wade v. Hewlett-Packard Dev. Co., 493 F.3d 533, 540–
41 (5th Cir. 2007), abrogated on other grounds by Hardt v. Reliance Standard
Life Ins. Co., 560 U.S. 242 (2010) (upholding a denial of benefits where
plaintiff’s two treating physicians supported a disability finding but an
examining neurophysiologist in a separate assessment found otherwise). 2
2 There is no obligation to weigh treating physicians’ opinions any differently than
those of other doctors or specialists. The Supreme Court recently clarified that “courts have
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When we find an abuse of discretion, the discrepancies between the facts
and the administrator’s findings are often stark. In Lain v. UNUM Life Ins.
Co. of Am., a claimant had experienced serious chest pains and esophageal
problems documented by multiple treating physicians. See 279 F.3d 337, 340–
42 (5th Cir. 2002), overruled on other grounds by Metro. Life Ins. Co. v. Glenn,
554 U.S. 105, 115–19 (2008). Based on two internal reviews of the claimant’s
medical files—one of which seemed to actually substantiate the individual’s
complaints—and without an independent physical examination, 3 the
administrator denied benefits. See id. at 341–42. This court found an abuse
of discretion, noting that there was a “complete absence in the record of any
‘concrete evidence’ supporting [the administrator’s] determination.” Id. at 347.
In this case, substantial evidence supported Reliance Standard’s decision
to deny long-term disability benefits to Killen. While there is evidence in the
record to support Killen’s claim for disability—which the district court
recognized—there is also more than enough evidence supporting a denial to
insulate the decision from reversal, particularly under our narrow review for
abuse of discretion.
First, Reliance Standard’s vocational expert and examining physician
provided sufficient evidence—including evidence of Killen’s ability to perform
full-time sedentary work—to justify the denial. A vocational expert employed
by Reliance Standard identified between three and five sedentary jobs Killen
could perform. Additionally, Dr. Burgesser wrote in her report that Killen was
no warrant to require administrators automatically to accord special weight to the opinions
of a claimant’s physician; nor may courts impose on plan administrators a discrete burden of
explanation when they credit reliable evidence that conflicts with a treating physician’s
evaluation.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003).
3 ERISA does not mandate an independent medical examination prior to a denial. See,
e.g., Hobson v. Metro. Life Ins. Co., 574 F.3d 75, 91 & n.3 (2d Cir. 2009) (collecting cases).
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“capable of performing at a sedentary work capacity . . . . The sedentary work
would involve sitting most of the time and walking or standing for brief
periods.” On a separate form, Dr. Burgesser listed a series of activities that
Killen could perform “on a regular basis in an 8-hour workday.” The form
noted that Killen could sit “frequent[ly],” and that she could “occasional[ly]”
stand, walk, climb stairs, and drive. Contrary to Killen’s position that Reliance
Standard never showed she could perform full-time work, these findings—
taken together—demonstrate that Killen could perform full-time work.
Second, Killen’s own treating physicians equivocated at different times
about the extent of her disability, even after the rotator cuff tear. Though her
primary care physician ultimately concluded that she was totally disabled, her
orthopedic surgeon’s reports are ambiguous at best on the issue. Indeed, in a
follow-up appointment to address her right shoulder rotator cuff tear, he stated
that her “function is good, even though she has some discomfort.”
The evidence in this case is comparable to that presented in Holland and
Wade. In both of those cases—as in this one—there were conflicting medical
opinions, with the plaintiffs’ treating physicians generally supportive of a
finding of disability and the defendants’ internal reviews or independent
examining physicians determining otherwise. See Holland, 576 F.3d at 244–
45; Wade, 493 F.3d at 535–37. As the district court here acknowledged, it is
the role of the ERISA administrator, not the reviewing court, to weigh valid
medical opinions. See Holland, 576 F.3d at 250; Wade, 493 F.3d at 541. And
unlike in Lain, it cannot be said in this case that there is a “complete absence
in the record of any ‘concrete evidence’” supporting a denial. Lain, 279 F.3d at
347. Reliance Standard’s decision was supported by substantial evidence. 4
4Killen argues also that some of the district court’s discussion of statements she made
to her physicians—for example, telling Dr. Crow that she wanted to get on disability—
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B.
Killen next argues that Reliance Standard failed to provide a full and
fair review of her claim because (1) the company did not provide sufficient
evidence in support of its initial May 2011 denial of benefits and (2) the
company brought forward its strongest evidence of Killen’s continued ability to
perform full-time sedentary work during the final appeal without giving her a
meaningful opportunity to respond. 5
When denying claims, ERISA-covered employee benefit plans must: (1)
provide adequate notice; (2) in writing; (3) setting forth the specific reasons for
such denial; (4) written in a manner calculated to be understood by the
participant; and (5) afford a reasonable opportunity for a full and fair review
by the administrator. Wade, 493 F.3d at 540 (citing 29 U.S.C. § 1133).
Killen’s first argument is foreclosed by our decision in Wade. In Wade,
the administrator failed to comply even with the basic requirements of § 1133
during its initial internal review. While we found that the administrator’s
errors at least arguably reflected a failure to substantially comply with ERISA
and its accompanying regulations, we stated that “[t]he statute and
regulations do not require compliance with Section 1133 at each and every level
improperly contributed to its substantial evidence finding. Killen is correct that some of
these statements are not especially germane to the substantial evidence inquiry, but the
district court’s mere mention of those details, particularly in light of its recognition of the
importance of the opinions of Dr. Burgesser and the vocational analyst to Reliance Standard’s
denial, does not disturb our holding that substantial evidence supported the denial. Killen’s
argument that neither Reliance Standard nor the district court considered the objective
reports of her pain are also belied by the record. Both the district court and Reliance
Standard’s independent medical examiner acknowledged Killen’s pain.
5Killen, in her briefing, alternatively characterizes these alleged ERISA violations as
“procedurally unreasonable.” But the doctrine of procedural unreasonableness is a “separate
concept that is a subset of our conflict of interest analysis.” Truitt v. Unum Life Ins. Co. of
Am., 729 F.3d 497, 509 n.4 (5th Cir. 2013).
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of review of a Plan’s internal claims processing,” and found that the claimant
had been provided a full and fair review. See id.Here, by contrast, Reliance Standard substantially complied with ERISA
at every step, including its initial denial. In its May 2011 initial written denial,
Reliance Standard addressed: (1) medical records about Killen’s right shoulder
injury, crediting her right rotator cuff tear but highlighting Dr. Crawford’s
observation that her function was “good even though you have discomfort”; (2)
the myriad medical issues—unrelated to the right shoulder problem—that
Killen experienced, including those related to her neck and shoulder pain,
heart problems, and depression; and (3) the internal vocational rehabilitation
specialist’s finding based on submitted records that “while unable to work in
your normal occupation, you appear capable of sedentary work activity.”
Killen’s view that these findings do not permit the inference that she could
perform full-time sedentary work takes too narrow a view of the evidence.
Killen also argues that Reliance Standard unfairly brought forward its
strongest evidence—the independent medical examiner’s report—only in the
final stage of her appeal, thereby preventing her from engaging in the
“meaningful dialogue” contemplated by § 1133. See Lafleur v. La. Health Serv.
& Indem. Co., 563 F.3d 148, 154 (5th Cir. 2009).
Circuits that have addressed the issue have generally determined that
ERISA does not guarantee claimants an opportunity to rebut an independent
medical examination report generated during an appeal prior to a denial of
benefits. See Metzger v. UNUM Life Ins. Co. of Am., 476 F.3d 1161, 1167 (10th
Cir. 2007) (holding that ERISA and its implementing regulations do “not
require a plan administrator to provide a claimant with access to the medical
opinion reports of appeal-level reviewers prior to a final decision on appeal”);
see also Pettaway v. Teachers Ins. & Annuity Ass’n of Am., 644 F.3d 427, 436
(D.C. Cir. 2011) (same); Midgett v. Washington Grp. Int’l Long Term Disability
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Plan, 561 F.3d 887, 895–96 (8th Cir. 2009) (same); Glazer v. Reliance Standard
Life Ins. Co., 524 F.3d 1241, 1245–46 (11th Cir. 2008) (same).
Citing Metzger, this court in an unpublished opinion adopted a similar
stance. Shedrick v. Marriott Int’l, Inc., 500 F. App’x 331, 339 (5th Cir. 2012)
(“Further, there does not appear to be relevant case law or regulations for the
proposition that Aetna violated ERISA’s full and fair review requirement by
failing to consider evidence submitted after [the claimant’s] appeal was closed
or by not allowing [the claimant] to rebut the report by Dr. Wallquist.”).
Killen does not dispute the force of this precedent. Rather, she contends
that it is inapplicable where the first-stage denial did not provide evidence that
she could call into question. But here, even assuming arguendo that Reliance
Standard did not provide Killen with sufficient evidence justifying the initial
denial for her to rebut, the underlying justification for each denial remained
constant. Each letter rejected Killen’s claim for benefits on the same ground:
her ability to perform sedentary work. This takes the facts out of our line of
cases where the insurer impermissibly uses a “bait-and-switch” tactic,
providing one justification at the first stage and then, during the review,
changing the grounds for the denial. See, e.g., Rossi v. Precision Drilling
Oilfield Servs. Corp. Emp. Benefits Plan, 704 F.3d 362, 366 (5th Cir. 2013);
Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 394 (5th Cir. 2006) (“Aetna’s
shifting justification for its decision and failure to identify its vocational expert
meant that Robinson was unable to challenge Aetna’s information or to obtain
meaningful review of the reason his benefits were terminated.”).
While the information provided in Dr. Burgesser’s report might have
further bolstered Reliance Standard’s position, there was nothing in the report
that altered the company’s original position. Therefore, Killen was not
“sandbagged” by a report containing unanticipated factual findings. She was
on notice beginning with the initial May 2011 denial that she needed to bring
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forward evidence of her inability to perform sedentary work. Reliance
Standard provided her an adequate opportunity to do so.
C.
We turn to Killen’s argument that Reliance Standard’s decision was
“procedurally unreasonable”—that is, that the company’s conflict of interest as
both the administrator of the Plan and the payor of benefits tainted its denial—
because of its failure to adequately distinguish the SSA’s disability finding.
The Supreme Court has held that a “plan administrator [who] both
evaluates claims for benefits and pays benefits claims,” as Reliance Standard
does here, has a conflict of interest. See Glenn, 554 U.S. at 112. But the Court
purposefully avoided enunciating a precise standard for evaluation of the
impact of the conflict. See id at 119. In Glenn, and in a post-Glenn case in this
court with similar facts, Schexnayder, the defendant-administrators denied
disability benefits, but not before the claimants successfully applied for
disability benefits before the SSA. See Glenn, 554 U.S. at 118; Schexnayder
600 F.3d at 471. The administrators financially benefitted from those
decisions (payments from the SSA offset their own obligations) and then
ignored the agency’s findings of total disability entirely; the result was a
reversal of those benefits decisions. See Glenn, 554 U.S. at 118; Schexnayder
600 F.3d at 471.
Here, by contrast, Reliance Standard twice addressed the SSA benefits
awarded to Killen, once distinguishing its denial in detail. Compare
Schexnayder, 600 F.3d at 471 n.3 (“It is the lack of any acknowledgement which
leads us to conclude that Hartford’s decision was procedurally unreasonable.”).
We find no procedural unreasonableness on these facts suggesting that we
should accord the conflict of interest factor any special weight.
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D.
Killen’s final argument is that Reliance Standard improperly failed to
allow her to supplement the administrative record with a letter from Dr. Crow
submitted four months after the third denial.
When assessing factual questions in benefits cases, “a long line of Fifth
Circuit cases stands for the proposition that . . . the district court is constrained
to the evidence before the plan administrator.” Vega v. Nat’l Life Ins. Servs.,
Inc., 188 F.3d 287, 299 (5th Cir. 1999) (collecting cases), overruled on other
grounds by Glenn, 554 U.S. at 112. 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.” Id. at 300. Such a “fair opportunity” must come in
time for the administrator to “reconsider his decision.” Id.
Here, the file was already closed and Killen had exhausted two internal
appeals. We cannot say that such a late submission of evidence, only four
weeks before Killen filed suit, gave Reliance Standard the “fair opportunity”
contemplated by Vega. Although Dr. Crow rebuts Dr. Burgesser’s opinion
directly in the letter, he does so by repeating a position he had already taken.
Indeed, he explained in the supplemental letter that “nothing has really
changed in her condition.” The letter, therefore, would not have changed the
outcome here. Cf. Keele v. JP Morgan Chase Long Term Disability Plan, 221
F. App’x 316, 320 (5th Cir. 2007) (“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.”). We decline to find an abuse
of discretion in Reliance Standard’s decision not to supplement the record, and
we find no fault in the district court’s choice not to consider the letter.
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IV. Conclusion
For the foregoing reasons, we AFFIRM the district court’s decision
granting summary judgment to Reliance Standard on the ground that it did
not abuse its discretion in denying Killen long-term disability benefits.
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