Cooper v. Hewlett-Packard Co.

592 F.3d 645, 2009 WL 4842458

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 18, 2009
• Docket: 09-20087
• Status: Published

Opinions

BENAVIDES, Circuit Judge:

This is an appeal of the district court’s grant of summary judgment upholding the denial of Appellant Laurie Cooper’s claim for continued disability benefits under the Hewlett-Packard Company Disability Plan (the “Plan”), governed by 29 U.S.C. §§ 1001 et seq. (“ERISA”). Cooper argues that she was denied a full and fair review of her claim and that the denial of benefits was an abuse of discretion because it was not supported by substantial evidence. Based on the following analysis, we affirm the judgment of the district court.

I.

Laurie Cooper worked for Hewlett-Packard (“H-P”) for 16 years in the position of content manager, which involved writing documentation regarding how to accomplish certain technical solutions at H-P. Most of her work was performed in front of a computer. As a result of her employment at H-P, Cooper became eligible to receive benefits under the Plan. Benefits provided by the Plan are funded by H-P, and administered by VPA, Inc. (“VPA”).

On March 24, 2004, Cooper stopped working at HP. Cooper, then 43 years old, applied for Short Term Disability (“STD”) benefits pursuant to § 2(q)(I) of the Plan because of neck and back pain she had been experiencing. Section 2(q)(i)’s definition of “Totally Disabled” provides that “[djuring the first twenty-six (26) weeks following the onset of an injury or sickness, the Participant is unable to perform the material and essential functions of his Usual Occupation in the Participating Company.” The Plan defines “Usual Occupation” as “the customary work assigned to the Participant by the Participating Company which employs the Participant and performed on the Participant’s customary schedule .... ” In support of her claim, Cooper submitted medical evidence, including reports from her psychiatrist, Dr. Riaz Mazcuri, M.D., and another treating physician, Dr. Mehboob Nazarani, documenting chronic back pain, depression, bipolar disorder, and generalized anxiety. On April 20, 2004, VPA approved Cooper’s application for STD benefits under § 2(q)(i).

Following the initial 26-week period of STD benefits under § 2(q)(i), Cooper applied for Long Term Disability benefits under § 2(q)(ii) of the Plan. Section 2(q)(ii) provides that a participant is “Totally Disabled” under that section if “[a]fter the initial twenty-six (26) week period and prior to the twenty-four (24) month period following the onset of injury or sickness, the Participant is unable to perform the material and essential duties of his Own Occupation.” The Plan defines “Own Occupation” as “the type of work in which the Participant was engaged prior to the onset of his Total Disability and is not limited to the Participant’s Usual Occupation or to jobs that provide any particular earnings level.” Cooper submitted evidence of her continuing chronic back pain, depression, bipolar disorder, and generalized anxiety from her treating physician, Dr. Arthur Tullidge. Based on this evidence, VPA determined that Cooper was eligible for disability benefits under § 2(q)(ii), effective September 23, 2004.

On September 19, 2005, VPA again contacted Cooper regarding continuing eligibility for disability benefits, under § 2(q)(iii) of the Plan. The § 2(q)(ii) period of benefits would end on March 25, 2006, and VPA gave Cooper the opportunity to present any other diagnoses by any other treating physicians. Section 2(q)(iii) imposes a stricter standard for eligibility than those in §§ 2(q)(i) and (ii), requiring a participant to demonstrate that she is unable to perform “any occupation for which he is or may become qualified by reason of his education, training or experience” — not just the participant’s “Usual Occupation” or “Own Occupation.” Additionally, VPA notified Cooper that, unlike under §§ 2(q)(i) and (ii), under § 2(q)(iii) nervous or mental disorders are disregarded in the determination of the participant’s disability-

In support of her claim for benefits under § 2(q)(iii), Cooper submitted medical documentation from several physicians and other medical professionals relating to procedures she underwent to treat her chronic back pain and resulting pain management procedures. On November 1, 2005, Dr. James Rose, a neurosurgeon who examined Cooper following her October 19, 2005 anterior cervical discectomy and fusion surgery, remarked that Cooper’s neck and hand were healing well and that Cooper’s main problem was a possible kidney stone. Margarita Lyons, P.A., one of Cooper’s pain management providers, examined Cooper on January 9, 2006. During the examination, Cooper reported that she was feeling “much, much better” since the surgery, and that she had been able to decrease all her medications, had started an exercise regimen, planned to lose weight, and was looking for a job. Cooper ranked her pain on a scale of 1 to 10 (with 10 being the worst and 2 to 3 being acceptable) currently as 2/10, usually as 3/10 to 4/10, least pain as 2/10, and most pain as 6/10. Lyons noted further, “The patient has been doing remarkably well. She has been able to decrease some of her medications. She has noted she has a mild increase in anxiety; however, with regard to her pain, she is doing very well.” On January 12, 2006, Dr. Tullidge noted that Cooper’s condition was “improved,” and that Cooper said the “pain [was] gone” and that she was feeling “so much better.” Dr. Madhuri Are, also Cooper’s pain management provider, examined Cooper on April 10, 2006. Cooper reported to Dr. Are that her pain level was currently 4/10, and usually was a 2/10. Her least pain was a 2/10 and most pain was a 6/10, with 4/10 as the “acceptable” pain level. Dr. Are found “some tenderness” in Cooper’s axial region and lower back, but documented that Cooper was in “no acute distress,” had a good range of motion, and had well-healed scars.

VPA ordered an independent medical evaluation before determining whether to grant or deny benefits to Cooper under § 2(q)(iii). Dr. Andres H. Keichian, a neurologist, conducted the independent medical evaluation. In his April 19, 2006 report, Dr. Keichian found that Cooper had a moderate range of motions limitation of the cervical and lumbar spine. In evaluating her physical capabilities, Dr. Keichian determined that Cooper was able to stand, walk, sit, and drive for up to four hours each per day for one hour each at a time; occasionally to lift up to 10 pounds, bend, squat, crawl, reach above shoulder level, and fine manipulate with both hands; and frequently to push/pull and simple grasp with both hands. VPA also referred Cooper’s file, including Dr. Keichian’s report, to a vocational specialist, Renee Lange. Lange used Cooper’s medical history, including the physical capabilities determined by Dr. Keichian, to identify jobs in Cooper’s geographic area that Cooper could perform notwithstanding her physical restrictions. Based on this information, Lange identified three positions' — • program manager, computer operations manager, and department manager — that Cooper could perform and that would not require sitting or standing for more than an hour at a time and allowed for alternating positions. Furthermore, Lange noted these occupations allowed for modifications such as a sit/stand workstation.

On July 19, 2006, VPA denied Cooper’s claim for benefits under § 2(q)(iii).¹ The claim denial letter stated that medical and vocational evidence demonstrated that, while Cooper may have been unable to return to her former position as content manager, she was capable of performing other occupations for which she was qualified or could become qualified by the date on which her disability benefits under § 2(q)(ii) ended. VPA highlighted Cooper’s improving medical condition, specifically referring to the comments of Drs. Rose and Keichian. VPA also explained that the vocational specialist had considered Cooper’s education, training, and experience in addition to Dr. Keichian’s evaluation in finding that Cooper could perform the jobs of program manager, computer operations manager, and department manager. VPA noted the fact that Cooper needed to change physical positions every hour in deciding that Cooper could perform the above three occupations.

On February 13, 2007, Cooper appealed VPA’s decision. In support of her appeal, Cooper submitted further medical documentation from Dr. Rose. This documentation included a November 28, 2006 note in which Dr. Rose remarked that the “fusion of course [was] healing pretty well at [Cooper’s] C5-C6 and C6-C7” discs. He also commented, however, that Cooper “continuefd] to have some discomfort and neck pain which was aggravated by [her] work.” Dr. Rose stated that while the discs that had been operated upon were healing well, Cooper had “degenerative disc disease at other levels above and below the fusion” and that he thought this problem was giving Cooper pain to the point where she was “disabled from [her] work.” He commented that he thought Cooper had a “significant physical disability” and that her condition “has prevented [her] from doing any meaningful work, especially doing [her] usual work, which is working at a computer and the like and writing.” Dr. Rose concluded that Cooper “[had] found that [she could] not work because of the increased pain.”

Additional notes submitted from Dr. Tullidge, Cooper’s treating physician, dated March 21, 2006, stated that Cooper would “start [working at the] jewelry store next week,” that Cooper’s condition was “stable,” and that Cooper was “not happy about ending of long term disability.” In notes from April 21, 2006, Dr. Tullidge commented that Cooper was “working part time,” “experiencing pain,” and “tolerating] med[ieation]s.” On June 28, 2006, Dr. Tullidge noted that Cooper was “working part time (25 hours [per week])” and made no reference to any complaints of pain on the part of Cooper. On September 18, 2006, Cooper saw Dr. Are, one of her pain management providers, for an examination following an epidural injection to reduce pain. Dr. Are documented that Cooper had “increased pain and pain going down her left thigh to her knee.” Dr. Are remarked that Cooper was in no acute distress and had intact reflexes. Dr. Are examined Cooper again on October 30, 2006. On that date, Cooper ranked her pain as a 4/10. Dr. Are again documented that Cooper was in no acute distress and had intact reflexes, and commented that she had some tenderness in the low lumbosacral region as well as painful flexation. Dr. Are scheduled Cooper for a caudal epidural steroid injection which was performed the following day, October 31, 2006.

At a January 18, 2007 follow-up visit with Dr. Are after the epidural injection, Cooper reported that pain control following the injection did not last very long, and that her pain was currently at the 4-5/10. During another examination by Dr. Are on February 12, 2007, Cooper ranked her pain as currently at 5/10. Dr. Are remarked that Cooper was working at a jewelry store as a sales clerk and was abiding by her restrictions of “no prolonged sitting or standing for more than 20-30 minutes.” He noted that Cooper was in chronic pain due to disc bulges in her thoracic and lumbar spine, that he “strongly doubt[ed]” she was able to work on a full-time basis, and that she was “very restricted” in her abilities and mobility due to her “chronic disabling” pain from disc disease.

VPA requested and received copies of Cooper’s pay stubs from her employment as a sales clerk at the jewelry store. The pay stubs indicated that Cooper had been working between 28.44 to 92.61 hours at Ben Bridge Jewelers per two-week pay period since the date her disability benefits ended on April 1, 2006. VPA also considered Cooper’s application for Social Security disability benefits. On July 11, 2006, the Social Security Administration denied Cooper’s application because of her work and the amount she earned. In an April 17, 2007 letter, Cooper’s counsel stated that it was his understanding that Cooper “was denied social security disability benefits because of her part time job at the jewelry store.”

On May 16, 2007, VPA denied Cooper’s claim on appeal. The denial letter noted Cooper’s examination by Physicians Assistant Lyons when Cooper reported that her symptoms were much better and ranked her pain level at 2/10. The letter further stated that VPA had attempted to contact Dr. Keichian following Cooper’s request that VPA clarify information with him, but that Dr. Keichian had not responded to VPA’s repeated requests for information. VPA did repeatedly note that the fact that Cooper was actually working supported its conclusion that Cooper could not establish her inability to perform “any occupation” as required to qualify for continuing benefits under the Plan. On May 23, 2007, apparently in response to VPA’s earlier request, Dr. Keichian sent a four-sentence letter to VPA, stating that “[t]he primary diagnoses of Mrs. Cooper that impair her ability to work are cervical laminectomy and fusions, persistent spinal pain, and bipolar disease. She also has a retroperitoneal tumor resected, of unclear prognosis. In view of her medical pathology, Cooper is totally disabled and unable to be gainfully employed.”

Cooper filed this action against the Plan on September 6, 2007. The district court granted summary judgment in favor of the Plan on January 14, 2009. Reviewing VPA’s decision under the abuse of discretion standard, the district court rejected Cooper’s position that VPA had shifted the grounds for denying Cooper’s claim. The district court noted that, while VPA weighed Cooper’s new employment as strong evidence that Cooper did not meet the § 2(q)(iii) standard, Cooper lost her appeal on the same specific grounds as she lost the initial claim: her improved medical condition. The district court determined that substantial evidence supported VPA’s denial of Cooper’s claim for disability benefits, finding that no doctor had opined that Cooper was unable to perform “any occupation” within the meaning of § 2(q)(iii). The district court highlighted the vocational specialist’s finding that Cooper was capable of performing three occupations, and the fact that Cooper herself reported feeling better and planning to lose weight and look for a job. That Cooper did begin employment a few months later, the district court found, tended to confirm that VPA was correct in relying on the signs of improvement shown by the vocational specialist’s report and on Cooper’s statements about her medical improved condition. Cooper timely appealed.

II.

“Standard summary judgment rules control in ERISA cases.” Vercher v. Alexander & Alexander Inc., 379 F.3d 222, 225 (5th Cir.2004). This Court reviews a district court’s grant of summary judgment de novo, applying the same standards as the district court. Strong v. Univ. Healthcare Sys., L.L.C., 482 F.3d 802, 805 (5th Cir.2007). Under de novo review, we “review the Plan’s decision from the same perspective as did the district court, and we directly review the Plan’s decision for an abuse of discretion.” Meditrust Fin. Servs. Corp. v. Sterling Chems. Inc., 168 F.3d 211, 214 (5th Cir.1999)

When an ERISA benefits plan provides the plan administrator with discretionary authority to construe the terms of the plan, the plan administrator’s denial of benefits is reviewed for abuse of discretion.² Gosselink v. American Tel. & Tel. Inc., 272 F.3d 722, 726 (5th Cir.2001). Abuse of discretion review is synonymous with arbitrary and capricious review in the ERISA context. Meditrust, 168 F.3d at 214. “When reviewing for arbitrary and capricious actions resulting in an abuse of discretion, we affirm an administrator’s decision if it is supported by substantial evidence.” Id. at 215. “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.’ ” Ellis v. Liberty Life Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir.2005). A decision is arbitrary only if made without a rational connection between the known facts and the decision or between the found facts and the evidence. Meditrust, 168 F.3d at 215 (citation omitted).

III.

First, Cooper argues that she was denied the full and fair review mandated by § 1133(2) of ERISA because VPA did not provide review of its specific basis for rejecting her claim. 29 U.S.C. § 1133(2). To comply with the “full and fair review” requirement in deciding benefit claims under ERISA, a claim administrator must provide the specific grounds for its benefit claim denial. Robinson v. Aetna Life Ins. Co., 443 F.3d 389, 393 (5th Cir.2006). Challenges to ERISA procedures are evaluated under the substantial compliance standard.³ See Lacy v. Fulbright & Jaworski, 405 F.3d 254, 257 (5th Cir.2005). Viewing her appeal in light of the substantial compliance standard, we conclude that Cooper received a full and fair review of the specific grounds upon which her benefit claim was initially denied.

Cooper’s claim that VPA changed its basis for denying her claim on appeal is without merit. VPA’s basis for denying Cooper’s claim on appeal was the very same as its original basis: the fact that her medical evidence failed to establish that she was incapable of employment.⁴ Cooper’s claim for long-term disability benefits was originally denied because, based upon a review of the medical evidence in her record, “it was determined that [she] could perform the following jobs: Program Manager[;] Computer Operations Manager[; and] Department Manager.”⁵ When Cooper appealed VPA’s initial decision, her own medical records from Anderson Cancer center indicated that she “was employed at Ben Bridge Jewelers, Inc.” Thus, on appeal, VPA reviewed its original assessment of the medical evidence (that is, the assessment that she was capable of employment), coupled with her medical records from Anderson Cancer Center indicating she was in fact employed, and concluded that its original assessment regarding Cooper’s lack of a “Total Disability” was correct.

Cooper, however, contends that VPA changed its original grounds for denying her claim when, on administrative appeal, VPA referenced Cooper’s subsequently acquired part-time job — instead of referring exclusively to the medical and non-medical evidence the Administrator relied upon in the original denial of benefits. To support this position, Cooper relies on this Court’s decision in Robinson, in which this Court held that “section 1133 requires an administrator to provide review of the specific ground for an adverse benefits decision.”⁶ 443 F.3d at 393. Cooper, therefore, avers that because VPA highlighted the Anderson Cancer Center records proving her employment in its review letter denying her claim, VPA failed to lawfully provide review of the “specific grounds” for the Administrator’s original adverse benefits decision.

Cooper’s interpretation of Robinson is mistaken, and provides the Court with the opportunity to highlight the significant differences between the bait and switch tactic at issue in Robinson, and the honest, fair, and full review Cooper received here, with VPA. Cooper’s argument that Robinson applies is misplaced because although the VPA mentioned a new, additional fact that the Administrator had not considered in the initial denial of her claim (this new fact being her employment), the mention of that new fact did not constitute different or separate “specific grounds” for the initial denial of Cooper’s claim. Instead, the specific ground remains the same: the Administrator denied her claim on the grounds that she failed to demonstrate with sufficient medical evidence that she was unable to perform “any occupation” as required under § 2(q)(iii) of the Plan. The fact that Cooper is now gainfully employed does not provide the VPA with a different basis for affirming the Administrator’s initial denial of Cooper’s claim, but rather, it provides the VPA with a concrete affirmation that the Administrator’s original assessment of the medical evidence in the record was correct.

Thus, while the Court agrees with Cooper that Robinson mandates that as a claimant, she “be specifically notified of the reasons for an administrator’s decision” regarding the denial of her application (443 F.3d at 393), the Court disagrees with Cooper that she was not notified of the specific reasons supporting the Administrator’s decision in her case. The present case does not contain the bait and switch tactic this Court was presented with in Robinson.7 In contrast to Robinson, this is not a case where the claimant’s claim was initially denied based on a factual assessment that the claimant was physically capable of performing a certain task necessary to a certain occupation, and then on administrative appeal, denied based on a new interpretation from a vocational expert that the performance of that task was no longer considered necessary to the claimant’s ability to maintain that certain occupation. That is, in the present case, VPA did not change the analysis at hand to conclude that the original basis for denying Cooper’s claim had become superfluous, but instead, VPA observed that this new evidence merely supports the VPA’s conclusion that the original assessment of the medical and vocational evidence on record is correct.

The dissent mistakenly reads our precedent in both Robinson and Lafleur v. La. Health Serv. & Indem. Co., 563 F.3d 148 (5th Cir.2009), as requiring us to conclude that Cooper did not receive a “fair and full review.” As support for this proposition, the dissent cites VPA’s review letter on appeal, specifically the sentence: “As a result, Ms. Cooper does not meet the any occupation definition of disability noted above.” According to the dissent, VPA’s use of “[a]s a result,” following its discussion of Cooper’s employment, indicates that the basis for VPA’s decision on appeal changed from Cooper’s ability to maintain employment to the fact that she is maintaining employment. Such a shift does not indicate a shift in the basis that first formed VPA’s decision, but rather, highlights two different aspects of the same basis for denying Cooper’s claim: her ability to maintain employment. The shift in language the dissent points to constitutes nothing more than a technical noncompliance. In both Robinson and Lafleur, this Court recognized that such a “technical noncompliance with ERISA procedures will be excused so long as the purpose of section 1133 has been fulfilled.” Lafleur, 563 F.3d at 154 (quoting Robinson, 443 F.3d at 393).

In the present case, there can be no doubt that “the purpose of section 1133 has been fulfilled.” Id. “The purpose of section 1133 is ‘to afford the beneficiary an explanation of the denial of benefits that is adequate to ensure meaningful review of that denial.’” Id. (quoting Schneider v. Sentry Long Term Disability, 422 F.3d 621, 627-28 (7th Cir.2005)). And in Robinson, we concluded the purpose behind “mandating review of the specific ground for a termination [was to] encourag[e] the parties to make a serious effort to resolve their dispute at the administrator’s level before filing suit in district court.” 443 F.3d at 393.

Here, Cooper received notice that her claim was denied because VPA considered her capable of employment. It should come as no surprise that on appeal, VPA would consider her employment to be an affirmation that its original assessment of the medical evidence was correct. Because VPA’s initial reason for denying Cooper’s claim was the conclusion that her medical evidence indicated she was capable of employment, we cannot read § 1133(2) to require VPA to blind itself to the fact that Cooper, on appeal, is arguing she cannot maintain employment — while simultaneously maintaining employment. It is an insurmountable challenge to imagine just how requiring Administrators to ignore the disability claimant’s medical records mentioning a claimant’s current employment would serve to resolve a dispute before it reaches the district court.

That is, were we to agree with the dissent and send Cooper’s claim back to VPA based on the dissent’s analysis, we would be sacrificing the true statutory purpose behind section 1133’s “fair and full review” for an unfortunate adherence to counterproductive technicalities. To attribute such a flawed reading to § 1133(2) would make a mockery of ERISA’s “full and fair review” and undermine the integrity of the administrative process as whole.

Where the evidence of subsequently acquired employment merely serves to support the Administrator’s original decision to deny the claimant’s claim based on the medical evidence contained within the record, we decline to interpret 29 U.S.C. § 1133(2) as requiring VPA to blind itself to the fact that the claimant is asserting she cannot maintain employment and simultaneously maintaining employment. Cooper had an adequate and fair opportunity to put forth evidence demonstrating that she cannot maintain “any occupation” as required under § 2(q)(iii) of the Plan. The record reveals that she failed to adequately do so.

IV.

Cooper also contends that there is no “concrete evidence” to support VPA’s finding that she not unable to perform “any occupation,” as required by § 2(q)(iii) of the Plan.⁸ Cooper relies heavily on Dr. Keichian’s May 23, 2007 addendum letter to VPA, which stated that “[t]he primary diagnoses of Mrs. Cooper that impair her ability to work are cervical laminectomy and fusions, persistent spinal pain, and bipolar disease. She also has a retroperitoneal tumor resected, of unclear prognosis. In view of her medical pathology, Ms. Cooper is totally disabled and unable to be gainfully employed.” We are not persuaded that this evidence undermines support for VPA’s decision that Cooper was not disabled as defined under 2(q)(iii) of the Plan. There is no evidence to show that Dr. Keichian examined Ms. Cooper during the time between his original report— which concluded that Cooper could stand, walk, sit and drive for one hour each at a time, for a total of four hours per day of each activity — and his addendum. His addendum does not cancel out the specific findings in his original evaluation. Furthermore, Dr. Keichian’s conclusory statement that Cooper is “totally disabled” does not suffice to establish disability under the language of the Plan, a determination which is a legal conclusion left to the Plan administrator. Cf. Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir.2003) (noting that a doctor’s conclusion that a social security disability applicant is “disabled” or “unable to work” is not a medical opinion entitled to deference, but rather a legal conclusion “reserved to the Commissioner”). Dr. Rose’s and Dr. Are’s statements to the effect Cooper was incapable of “meaningful work” and “full-time work” — though entitled to some weight — are similarly inconclusive of the determination of disability under the language of the Plan. Under § 2(q)(iii), Cooper was required to demonstrate she was unable to perform “any occupation”; there were no limitations as to earnings level, or whether the work was “meaningful” or “gainful[]” employment.

Support for the plaintiffs claim is not controlling because we must defer to the administrator’s decision if the plan administrator’s denial is supported by substantial evidence. Ellis, 394 F.3d at 273 (“We are aware of no law that requires a district court to rule in favor of an ERISA plaintiff merely because he has supported his claim with substantial evidence, or even with a preponderance.”). VPA’s conclusion that Cooper is not disabled as defined in § 2(q)(iii) of the Plan is supported by substantial evidence. Lange, the vocational specialist, found that Cooper was able to perform three occupations based on the physical activities that Dr. Keichian found her capable of performing: program manager, computer operations manager, and department manager. Furthermore, Dr. Are noted significant improvements in Cooper’s condition and acknowledged Cooper’s ability to perform part-time work. The letter denying Cooper’s claim on appeal noted that Cooper had to establish she was disabled, under § 2(q)(iii) of the Plan, by March 25, 2006, the day her initial period of disability benefits under another part of the Plan, § 2(q)(ii), ended. Approximately three months before the date on which Cooper needed to qualify for benefits under § 2(q)(iii), Lyons noted that she had been able to decrease all medications, had started an exercise regimen, planned to lose weight, and was looking for a job.

Cooper’s claims that no “concrete evidence” supports VPA’s conclusion is even further undermined by the fact that Dr. Tullidge, her own treating physician, stated on March 21, 2006 that she would “start [working at the] jewelry store next week,” that Cooper’s condition was “stable,” and that Cooper was “not happy about ending of long term disability.” In notes from April 21, 2006, Dr. Tullidge commented that Cooper was “working part time,” “experiencing pain,” and “toleratfing] med[ication]s.” On June 28, 2006, Dr. Tullidge noted that Cooper was “working part time (25 hours [per week])” and made no reference to any complaints of pain on the part of Cooper. That is, the medical evidence in the record indicates not only that Cooper hypothetically could maintain employment, but rather, her medical records demonstrate that at the time of VPA’s initial July 19, 2006 decision, Cooper was maintaining gainful employment.

Thus, we conclude that the record contains substantial evidence to support VPA’s conclusion that Cooper did not meet the definition of “Total Disability” since following the termination of her benefits under § 2(q)(ii) of the Plan, she was not unable to perform “any occupation” as required by § 2(q)(iii).

V.

Based on the foregoing analysis, the judgment of the district court upholding the administrator’s denial of benefits is

AFFIRMED.

1 . Up until that point, the Plan had consistently paid Cooper her short-term disability benefits for twenty-four months, pursuant to Sections 2q(i) and (ii) of the Plan. Thus, Cooper’s disability payments terminated on March 24, 2006.

2 . The parties do not dispute that VPA, the Plan’s administrator, has discretionary authority to construe the terms of the Plan. Cooper argues in her brief that the abuse of discretion standard applicable to administrators with discretionary authority may be altered in light of Metropolitan Life Ins. Co. v. Glenn, - U.S. -, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008). However, Glenn addressed only the standard of review employed when the administrator has a conflict of interest, i.e. where a plan administrator "both evaluates claims for benefits and pays benefits claims.” 128 S.Ct. at 2348. Here, as Cooper conceded, there is no conflict of interest because H-P employs VPA — a contract administrator — to evaluate claims under the Plan. Therefore, the Court’s holding in Glenn does not affect the standard of review employed in this instance.

3 . Given the fact that we review VPA’s decision on appeal under the substantial compliance standard, we are puzzled as to why the dissent attempts to cast the Court’s decision as a review for harmless error. In contrast to the dissent’s assertion that we have reviewed Cooper's appeal for "any grounds in the record to support the judgment” Mangaroo v. Nelson, 864 F.2d 1202, 1204 n. 2 (5th Cir.1989), a more thorough review of the analysis contained herein clearly demonstrates that VPA's decision on appeal has been reviewed in full compliance with the correct standard. See Lacy, 405 F.3d at 257 (holding that "the substantial compliance standard” is the appropriate standard of review). It is under this substantial compliance standard of review that we conclude that Cooper did receive a "full and fair review” of the VPA’s initial determination that her medical condition did not qualify as a "Total Disability” under the Plan.

4 . The definition of "Total Disability” requires Cooper to demonstrate that, due to her alleged medical condition, she "is continuously unable to perform any occupation for which [s]he is or maybe become qualified by reason of [her] education, training or experience.” (emphasis added).

5 . Thus we consider it important to note that VPA’s initial assessment of Cooper's condition was not an assessment of medical records alone. In addition to the medical records from her doctors, VPA consulted with a vocational specialist. Based on the vocational specialist’s review that Cooper was capable of performing several different occupations, coupled with her medical records, VPA concluded that Cooper was "capable of performing other occupations for which [she was] or could become qualified as of March 25, 2006.”

6 . Cooper, however, is mistaken in her assertion that VPA relied on her recently acquired employment as the "specific grounds” for affirming the Administrator’s decision. While the review letter did highlight the fact that Cooper had subsequently acquired employment, the review letter first discussed, in great detail, the significance of the medical records that alone initially supported the Administrator’s denial of Cooper's claim. The review letter noted that Cooper had to establish she was disabled, under § 2(q)(iii) of the Plan, by March 25, 2006, the day her initial period of disability benefits ended. The letter then noted that on January 9, 2006, less than three months before the date she needed to qualify for long term disability under 2(q)(iii) of the Plan, she was evaluated by the Anderson Cancer Center and was assessed as feeling decreased symptoms, requiring less medication, undertaking an exercise regimen, and looking for employment. The review letter stated that at that time, Cooper reported her "symptoms were much better” and her pain was only a 2/10. It is with great import that we note that VPA did not discuss Cooper's employment until after first discussing the significance of the medical evidence on record that established Cooper was capable of employment as of January, 2006 — prior to any recorded employment.

7 . In Robinson, the Court concluded that the procedural requirements of § 1133 were not met where the plaintiff was initially denied disability benefits on the grounds that his vision had improved sufficiently, but was subsequently denied benefits on appeal on different grounds — namely that good vision was not necessary to meet the definition of "capable of employment” under that plan. 443 F.3d at 393.

8 . Cooper argues that "any occupation for which [Cooper] is or may become qualified by reason of [her] education, training or experience,” the language used in § 2(q)(iii) of the Plan, should not include the ability to perform part-time work such as the work she performed at the jewelry store. However, there is no such restriction in the Plan. See Dramse v. Delta Family-Care Disability and Survivor-ship Plan, 269 Fed.Appx. 470, 481 (5th Cir. March 12, 2008) (affirming the district court's holding that the term "any occupation” included part-time work); Doyle v. Paul Revere Life Ins. Co., 144 F.3d 181 (1st Cir.1998) (holding that claimant's ability to perform part time work precluded him from establishing that his disability prevented him from engaging in "any occupation for which he is or may become suited by education, training or experience”). Even if the Plan language would not apply to part-time work, there is evidence in the record, namely the analysis of the vocational consultant, that Cooper could perform work for eight hours a day in alternating positions.