
    Joel W. CARRIGAN, Plaintiff-Appellee, v. RELIANCE STANDARD LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 02-1196.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 29, 2002.
    Decided Jan. 17, 2003.
    
      Joshua Baehrach, Rawle & Henderson, L.L.P., Philadelphia, Pennsylvania, for Appellant. Louis L. Lesesne, Jr., Lesesne & Connette, Charlotte, North Carolina, for Appellee. Edward G. Connette, Jr., Les-esne & Connette, Charlotte, North Carolina, for Appellee.
    Before LUTTIG and MOTZ, Circuit Judges, and ANDRE M. DAVIS, United States District Judge for the District of Maryland, sitting by designation.
    Vacated and remanded by unpublished PER CURIAM opinion. Judge Luttig wrote a concurring opinion.
   OPINION

PER CURIAM.

Reliance Standard Life Insurance Company (“Reliance”) appeals from the district court’s grant of summary judgment in favor of Joel Carrigan (“appellee”) in this action for wrongful denial of benefits under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. (West 2002). As the district court did not have the benefit of this court’s opinion in Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264 (2002), we vacate the district court’s grant of summary judgment, and remand the case for further proceedings.

I.

Appellee worked as a corporate officer and publisher for Goodwill Publishing, Inc., for approximately 30 years. His job title was “Director of Field Communications,” and his job duties as described by Goodwill Publishing included receiving calls from sales personnel, resolving problems and complaints regarding sales, meeting with office personnel and researching, and occasionally filling orders for supplies, involving the lifting of boxes and packing material. The Dictionary of Occupational Titles entry matched to ap-pellee’s job included such tasks as monitoring clerks, reviewing orders, training clerks, issuing written and oral instructions, and preparing reports.

Appellee also had a long history of health problems associated with his back and legs. He had undergone four lumbar or cervical surgeries, the first in 1964, and had suffered chronic back pain since at least the 1970’s. From 1995 through 1999, appellee visited multiple physicians, including Dr. Darden, an orthopaedist, and Drs. Aiken and Anthony, internists, regarding his back and leg problems. Dr. Darden reported that appellee suffered from degenerative disk disease, with a possible lumbar radiculopathy of the left leg. In October of 1998,

Dr. Darden recommended that appellee receive a microdiscectomy on the left side between the L2-L3 vertebrae. Dr. Aiken noted that appellee was in obvious pain, suffered from back spasms, and had limited mobility and limited physical capabilities. Dr. Aiken concluded that appellee had chronic severe degenerative disc disease.

From March 1997 until November 1998, appellee was also treated by Dr. Anthony, an internist. On a statement made in March 1999, Dr. Anthony concluded that appellee had limited physical capabilities, and stated that in his opinion appellee was “disabled from his past relevant work as an office manager,” and was “disabled from performing even sedentary work,” although no definition of “disabled” was specified.

In May of 1999, Dr. Gudeman, another physician, concluded that appellee suffered from moderately severe cervical degenerative disc and spine disease with significant and bi-lateral foraminal encroachment, and he recommended that appellee undergo a cervical diskotomy and fusion at the C4-5 and C5-6 vertebrae. The record does not specify whether appellee proceeded with this surgery.

On October 19, 1998, appellee applied, through Goodwill Publishing, for long-term disabbity benefits from Reliance, a fiduciary for Goodwill Publishing’s long-term disability policy, an employee welfare benefit plan governed by ERISA. Appebee reported that the last day on which he worked fub time was August 28, 1998, and was totaby disabled from that date on due to his chronic back and leg pain. After evaluating the evidence submitted by ap-pebee, Rebanee denied the claim, determining that appebee fabed to satisfy the plan definition of total disabbity. Appebee timely appealed, and Rebanee affirmed its previous decision to deny benefits. On October 21, 1999, appebee then filed a lawsuit pursuant to 29 U.S.C. § 1132 challenging Reliance’s determination. After considering the administrative record, the district court held that even under the more deferential abuse of discretion standard, Reliance abused its discretion by denying the appbeation for benefits, and entered summary judgment in favor of appebee. Rebanee fbed a timely notice of appeal.

II.

We review the district court’s grant of summary judgment de novo, applying the same legal test as the district court. See Elliott v. Sara Lee Corp., 190 F.3d 601, 605 (4th Cir.1999). An ERISA plan administrator’s or fiduciary’s determinations are presumptively subject to de novo judicial review. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 112-13, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Doe v. Group Hospitalization & Medical Servs., 3 F.3d 80, 85 (4th Cir.1993). A reviewing court wbl use a more deferential standard of review (such as abuse of discretion) only when the language of the plan confers discretion upon the administrator or fiduciary. See Firestone Tire, 489 U.S. at 111-12, 109 S.Ct. 948. This court, in Gallagher, has already interpreted the very plan language now in dispute and concluded that the plan did not confer any discretion on Rebanee to determine eligibility for benefits. 305 F.3d at 270. Hence, we review Reliance’s eligibbity determination de novo.

Under the plan, an insured employee is “totaby disabled” when, as the result of sickness or injury, the employee “cannot perform each and every material duty of his/her regular occupation” during the entire “Elimination Period.” J.A. 463. The “Elimination Period” is a period of 90 consecutive days of total disabbity. J.A. 460, 462. The contract also requires that a claimant “submit satisfactory proof of total disabbity to [Rebanee]” before benefits wbl be awarded. J.A. 468. As appebee claimed to be totaby disabled beginning on August 28, 1998, J.A. 643, appebee’s elimination period ran from August 28, 1998, untb November 26,1998.

This court, in Gallagher, interpreting the very plan before us now, concluded that in order for a claimant to be eligible for benefits, he must “submit objectively satisfactory proof that he was unable to perform all the material duties of his regular occupation [during the elimination period].” 305 F.3d at 270. As the district court did not have the benefit of the Gallagher opinion, we vacate its grant of summary judgment and remand in order for it to consider appellee’s proffered evidence using the analysis set forth in Gallagher,

CONCLUSION

For the reasons stated herein, we vacate the grant of summary judgment to appel-lee and the award of attorneys’ fees, and remand to the district court for further proceedings.

VACATED AND REMANDED.

LUTTIG, Circuit Judge,

concurring:

It is plain that the facts in the instant case are materially indistinguishable from those in Gallagher v. Reliance Standard Life Ins. Co., 305 F.3d 264 (2002).

For instance, in this case, although Dr. Anthony described appellee as “disabled from even sedentary work,” J.A. 130, he did not set forth his definition of “disabled,” and it is impossible to tell whether his definition comported with the plan’s definition of total disability. Dr. Anthony also did not specify at what times or during which period appellee was disabled, and hence it is not possible to determine whether appellee suffered from the disability diagnosed by Dr. Anthony during the entire elimination period. Similarly, in Gallagher, several physicians testified that the plaintiff was disabled, but did not state that the definition of disability used was compatible with the plan’s definition of total disability. 305 F.3d at 273-74.

In the instant case, Dr. Darden, the orthopaedist, did not give a conclusion one way or the other as to whether appellee was totally disabled. He did conclude that appellee had some physical limitations, but stated that appellee could work for approximately six hours in a work day, as long as appropriate positional changes were made. J.A. 312 (concluding that appellee could work for one hour sitting, two standing, one walking, and two alternatively sitting and standing). Similarly, in Gallagher, one of the plaintiffs treating physicians concluded that the plaintiff could physically perform some of the material tasks of his job, even though the physician concluded otherwise as to other material tasks. 305 F.3d at 273.

Dr. Aiken, also, never concluded one way or the other that appellee was totally disabled. He, at best, confirmed that ap-pellee suffered from chronic back pain, and did note in 1996 that appellee’s back problems could, at some point in the future, act to disable appellee from gainful employment. J.A. 221. But he did not conclude that appellee was disabled, nor was evidence provided that the pain became noticeably worse beginning on August 28, 1998. Likewise, in Gallagher, the plaintiff argued that his back pain disabled him from performing the duties of his job. 305 F.3d at 274. But, he provided no evidence that the back pain became noticeably worse after the date of his alleged total disability (where, before such date, he performed some of his job duties). Id. at 274-75.

Appellee’s vocational expert, Patrick Clifford, did submit an evaluation concluding that appellee was totally disabled under the definition of the plan. J.A. 92-95. But, Clifford did not specify that he was referring to appellee’s condition during the elimination period, and indeed appeared instead to be referring to appellee’s condition as of the time of his report (on or about June 23, 1999). This also mirrors the evidence presented in Gallagher, where the plaintiff presented a report from a vocational expert concluding that he was totally disabled under the definition used by the plan. 305 F.3d at 274 n. 10. But, the vocational expert did not provide any indication that he was referring to the plaintiffs condition during the elimination period. Id. Indeed, to make matters worse for appellee, Clifford relied extensively on the various physicians’ reports referenced above as the basis for his medical evaluation of appellee, J.A. 92-93, but as I noted above, these reports did not show or imply that appellee was totally disabled within the definition of the plan. By contrast, John Zurick, Reliance’s vocational expert, upon reviewing some of the medical evidence, deduced that appellee could perform at least on a part-time basis the various duties of his job.

In fact, I note that in several respects the plaintiff in Gallagher presented stronger evidence of his disability than appellee. For instance, the plaintiff in Gallagher was determined to be disabled by the Social Security Administrator, and was awarded Social Security benefits. 305 F.3d at 275. Appellee, by contrast, has not received an award of benefits from the Social Security Administration, and indeed the Disability Determination Service recommended that appellee be denied benefits. J.A. 665. And also, in the instant case, there is at least a dispute over whether appellee was actually at work during the elimination period, where it was apparently undisputed that the plaintiff in Gallagher did not work after his claimed date of total disability.

Notwithstanding the striking parallels between the facts in Gallagher and the facts in this case, I am comfortable with our disposition allowing the district court to consider whether appellee is entitled to an award of benefits under our precedent, given that Gallagher post-dated the district court’s decision. 
      
      . Radiculopathy is a disorder of the spinal nerve roots. See Stedman’s Medical Dictionary 1503 (27th ed.2000).
     
      
      . A discectomy is the excision, in part or whole, of an intervertebral disk. See Sted-man’s Medical Dictionary 508 (27th ed.2000).
     
      
      . Foramina are apertures or perforations through bone or through a membranous structure. See Stedmans Medical Dictionary 698 (27th ed.2000).
     
      
      . Also referred to as a discectomy. See note 2.
     
      
      . Since it is unclear in light of Gallagher that appellee will be a prevailing party, we also vacate the award of attorneys’ fees to appel-lee. See Martin v. Blue Cross & Blue Shield of Va., Inc., 115 F.3d 1201, 1210 (4th Cir. 1997).
     