MEMORANDUM OPINION AND ORDER

DAVID GODBEY, District Judge

Before the Court is a motion for summary judgment by Defendants LB Realty Advisors, Inc. ("LB") and UNUM Life Insurance Company of America ("UNUM") on the remaining claim of Plaintiff Teresa L. Graham ("Graham"). For the reasons indicated below, that motion is GRANTED.

I. BACKGROUND

Plaintiff Graham was an employee of LB. LB maintained an employee welfare benefits plan named LB Realty Advisors, Inc., Plan No. 501 (the "Plan") governed by the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. ("ERISA"). The long term disability benefits under the Plan were insured by UNUM. Graham filed for long term disability benefits, claiming that she became disabled in October 2000. UNUM denied the claim.

Graham now sues the Plan, UNUM, and LB. This Court previously dismissed Graham's claim against LB for breach of fiduciary duty and her claims against UNUM for Texas state law violations under common law bad faith and violation of the Texas Insurance Code, Article 21.21. The Court is now asked to grant summary judgment on Graham's remaining claim for benefits against the Plan and UNUM under 29 U.S.C. § 1132(a)(1).

II. THE STANDARD FOR EVALUATING UNUM's DECISION TO DENY BENEFITS is ABUSE OF DISCRETION

The standard by which this Court reviews UNUM's decision to deny benefits to Graham depends on whether UNUM is a fiduciary with respect to the Plan. UNUM is a fiduciary with respect the Plan if it has "any discretionary authority or discretionary responsibility in the administration of the Plan." 29 U.S.C. § 1102(21)(A)(iii). According to the Policy, "When making a benefit determination under the policy, UNUM has the discretionary authority to determine your eligibility for benefits and to interpret the terms and provisions of the policy." Decl. ¶ 6, Ex. 1 at UL0030. The inclusion of this discretionary language requires this Court to review UNUM's decision to deny benefits to Graham on an abuse of discretion standard. See Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989) (requiring abuse of discretion review where the plan "gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan"); see also Todd v. AIG Life Ins. Co., 47 F.3d 1448, 1458 (5th Cir. 1995); Harms v. Cavenham Forest Indus., 984 F.2d 686, 688-89 (5th Cir. 1993); Whitaker v. BellSouth Telecom., Inc., 206 F.3d 532, 534 (5th Cir. 2000).

Under the abuse of discretion standard, UNUM's factual conclusions will be upheld so long as they reflect "reasonable and impartial judgment." Pierre v. Connecticut General Life Ins. Co., 932 F.2d 1552, 1562 (5th Cir. 1991) cert. denied, 502 U.S. 973, 112 S.Ct. 453, 116 L.Ed.2d 470 (1991). As long as UNUM's decision to deny benefits to Graham is based on "some concrete evidence in the administrative record," it will not constitute an abuse of discretion. Gooden v. Provident Life Ace. Ins. Co., 250 F.3d 329, 333 (5th Cir. 2001). Because of the potential conflict of interest, UNUM's status as an insurance administrator is a factor to be considered in determining whether it abused its discretion. Gooden, 250 F.3d at 333 (applying a sliding scale standard because the insurance administrator "potentially benefits from every denied claim"); Vega v. National Life Ins. Services, Co., 188 F.3d 287, 298 (5th Cir. 1999) (en bane) (applying the sliding scale standard for a conflict of interests). But where the only evidence of a conflict is that the claim administrator is an insurance company, the decision is reviewed with "only a modicum less deference." Vega, 199 F.3d at 301. In evaluating whether UNUM abused its discretion, this Court may consider only the evidence contained in the administrative record when UNUM reached its decision. Gooden, 250 F.3d at 337; Vega, 188 F.3d at 299-300 ("Once the administrative record has been determined, the district court may not stray from it except for certain limited exceptions

. . . The district court is precluded from receiving evidence to resolve disputed material facts — i.e., a fact the administrator relied on to resolve the merits of the claim itself."). Otherwise, claimants would lose the incentive to present all their evidence at the administrative level, and "the administrator's review of claims would be circumvented." Vega, 188 F.3d at 299-300.

III. THERE is SOME CONCRETE EVIDENCE SUPPORTING UNUM's DENIAL OF BENEFITS

The question before the Court, then, is whether concrete evidence in the administrative record reasonably supports UNUM's decision to deny benefits to Graham. Although there is clear evidence to the contrary, the Court, with some reluctance, acknowledges some concrete evidence supporting UNUM's decision.

On or about November 20, 2000, UNUM received Graham's claim for long-term disability benefits under the Policy. Graham claimed that she had become disabled from her occupation as an associate asset manager/financial analyst for LB as of October 27, 2000 as a result of (1) burning sensation; (2) weakness and numbness in her upper and lower extremities; (3) severe headaches; and (4) loss of fine and gross motor skills in her hands. Her job had been modified because of her loss of motor skills and due to the fact that she was unable to use a computer except with two fingers. UL0064. Graham said her symptoms first appeared in 1980 and that she first received treatment in 1981. Graham also submitted a Physician's Statement from Dr. Allan Naarden, her treating neurologist, in which he explained that Graham's injuries had been treated by the removal of a spinal cord neurofibroma in 1981 and a posterior cervical fusion in 1998. Dr. Naarden advised that Graham's limitations were pushing, pulling, climbing, lifting more than 10 pounds, and sitting for long periods of time. UNUM did not deny these limitations were supported by the medical records submitted by Graham, but maintained even with those limitations, she was not disabled within the definition supplied by the Policy.

The Policy defines "disability" as follows: "You are disabled when UNUM determines that: you are limited from performing the material and substantial duties of your regular occupation due to your sickness or injury; and you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury." According to the policy, "regular occupation means the occupation you are routinely performing when your disability begins. UNUM will look at your occupation as it is normally performed in the national economy, instead of how the work tasks are performed for a specific employer or at a specific location." UNUM classified Graham as a "credit analyst." The occupational description included (1) analyzing credit data and financial statements; (2) generating financial reports using a computer program; (3) analyzing financial data; (4) comparing data; (5) evaluating records; (6) completing applications; (7) conferring with business representatives; (8) reviewing files; and (9) consulting with customers. According to UNUM, the physical demands of the position required occasional reaching, handling, fingering, talking, hearing, and constant near vision.

Graham contends her current medical limitations prevent her from being able to carry out these functions. Dr. Naarden warned Graham against attempting to carry objects — like many laptops — that weigh more than five or ten pounds. UL0439. Again citing Dr. Naarden's neurological findings, Graham claims her limited ability to lift or pull could prevent her from job related travel because putting her bag in an overhead bin, for example, could risk further injury to herself or others, should the bag slip out of her hand. UL0438. Similarly, the lack of fine motor control in her hands and the numbness in her fingers makes typing on a computer extremely difficult, and Dr. Naarden warned Graham not to sit in front of a computer for more than 20 minutes at a time. UL0442. Dr. Naarden further instructed Graham that if she continued to spend 80 percent of her time working on computers, inputting information, and reviewing documents, she could suffer an increase in pain and fatigue, and there is a reasonable probability that she would suffer issue damage. UL0440. Steven Carter, M.S., C.B.E., C.R.C., who works for Career Assessment Services, noted that Graham has difficulty performing fine motor activities and scored substantially below the average range in bi-manual dexterity and muscle power. UL0445-46. Mr. Carter concluded that Graham would have difficulty performing any jobs involving even minimal hand and arm use such as typing, keyboard operation, ten-key operation or lifting. Id. These limitations are undisputed. UNUM concedes that "Graham's restrictions of no pushing, pulling, climbing, lifting greater than 10 pounds, or sitting for prolonged periods of time at a computer appeared to be supported by the medical records," but argues that "those restrictions and limitations did not cause Graham to be unable to do the material and substantial duties of her occupation as it is normally performed in the national economy, as opposed to the work tasks performed for a specific employer." Defendant's Brief in Support of Defendant's Motion for Summary Judgment at 14.

UNUM relies on medical evidence that Graham's condition has been stable since 1998 to argue that it must be possible for her to carry out her job duties in the presence of these limitations because she has done so during the time leading up to her disability claim in October of 2000. In 1998, Graham underwent a posterior cervical fusion. In the months following her surgery, Dr. Naarden reported that Graham's X-rays revealed that "she is really quite stable. She continues to work at increasing her right triceps strength, and may be making some progress. Otherwise, her neurological examination really is unchanged." UL0154. UNUM acknowledges that Graham's occupation is sedentary, but doesn't believe the restrictions supported by her treating physician limit her ability to carry out the material and substantial duties of her occupation, "particularly since Graham's occupation allows Graham to sit and stand as necessary." Defendant's Brief in Support of Motion for Summary Judgment at 10. To support the stability of Graham's condition, UNUM also points to a letter from Dr. Naarden stating that Graham "is thoroughly disabled by this condition, though while it is stable is the result of a severe neurological injury." Although UNUM acknowledges that "the restrictions and limitations provide by Dr. Naarden were supported," it argues that "those restrictions and limitations did not preclude Graham from performing her occupation as it is performed in the national economy, particularly given that Graham's job allowed her to adjust her position and she had been working with the same symptoms for several years." Defendant's Brief in Support of Defendant's Motion for Summary Judgment at 12-13.

To support its conclusion that Graham's condition was not worsening, UNUM relied on the statements of in-house neurologist and medical consultant, Dr. Alan Neuren. Dr. Neuren never actually examined Graham. Rather, his analysis is based on his review of the medical records. Although Dr. Neuren acknowledges documented evidence of "significant atrophy of the thenar eminence and other intrinsic muscles of the left hand," "numbness in the medial two fingers of her left hand," the possibility of "decreased function involving the other fingers of the left hand," "cramping in the right hand," "impaired sensation," "restrictions in the range of motion of her neck," and notes that "her dexterity is obviously affected," he concludes that her condition "appears to be stable and has been at least since her last surgery." UL640-41. He adds, "[t]here is nothing to suggest progression of symptoms or deterioration of her condition since the surgery." Id. at UL641. Finally, he asserts "[t]he contention that continued employment in her usual activities or occupation will accelerate deterioration [as Dr. Naarden claims] is unfounded, purely speculative, and has no basis." Id.

Under the abuse of discretion standard, the question before this Court is not how to resolve conflicting evidence in the record, but whether UNUM's resolution of those conflicts is reasonably supported by concrete evidence in the administrative record. UNUM's argument is that Graham could perform each of the substantial and material duties of her job before her disability claim in October of 2000, and, absent any evidence that her condition is deteriorating, she ought to be able to perform them after. Although there was a significant proportion of clear evidence supporting Graham's disability claim, UNUM did rely on some concrete evidence in the administrative record to support its denial of benefits. First, UNUM relied on statements by Graham's doctor that her condition was stable. However, Graham's doctor also seemed to believe that Graham could be stable, and at the same time, if she continued her daily work routine, expose herself to increasing risk of more serious harm or permanent damage. Second, UNUM relied on the statements of its own in house neurologist that Graham's condition was stable and perhaps improving.

The Court is troubled by the potential conflict of interest from Dr. Neuren's position. Under Fifth Circuit precedent, there appears to be little that would prevent unscrupulous insurers from retaining a captive physician to articulate a basis for denying coverage and relying on the "modicum less deference" to insulate the bought opinion from meaningful judicial review. The Court is comfortable, however, that a "modicum less deference" is enough to require, at minimum, that if a carrier relies upon the opinions of a physician who is tied in some way to the carrier, the report of the physician must articulate a basis for his or her opinions in a manner that permits review of the reasoning and must point to objective medical findings that support those opinions.

Dr. Neuren's opinions here meet this minimal, deferential standard. In addition to the rationale described above, Dr. Neuren also found objective test data in support of his opinions:

The records document improvement of her condition subsequent to the surgery performed at the May Clinic in 1997. Follow-up notes from Dr. Naarden in 1998 and 1999 document continued improvement. The electrodiagnostic studies performed in September 2001 when compared to those performed in March of 1998 fail to document any deterioration. In fact many of the values have actually improved. The left median motor latency across the wrist has gone from 4.6 msec to 3.9 msec. The left median nerve conduction velocity from the wrist to the elbow has gone from 36 m/sec to 46 m/sec. The right median motor latency across the wrist has gone from 5.1 msec to 4.6 msec. The left ulnar F-wave has gone from 31.4 msec to 24.8 sec. The left ulnar sensory latency has gone from 4.4 msec to 3.2 msec. The EMG is not comparable as the 1998 study was of the right arm and the 2001 study was on the left. The new information does not alter the prior opinion. There is no documentation to support a decline in motor skills, mobility, or dexterity beginning on the date of disability.

UL0661 (Dr. Neuren 12/26/01 review of new records). These tests suggest that Graham's motor skills are improving in some respects. These objective test measurements coupled with different physicians' statements that Graham's condition is stable constitute some concrete evidence to support UNUM's denial of claims.

CONCLUSION

The Court is concerned by this result. If the Court were finding the facts based on the administrative record, it would find Graham is disabled. Likewise, if the Court could decide the standard of review to use when a carrier's decision is based on the opinions of a captive professional, the Court might extend less deference to such decisions. However, under the statutory framework of ERISA as applied in this Circuit, the Court must hold that substantial evidence supports UNUM's decision. Accordingly, UNUM's motion for summary judgment is granted.