United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS August 8, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 07-50078
Summary Calendar
DAN WHATLEY,
Plaintiff - Appellant,
versus
MOTOROLA DISABILITY INCOME PLAN; MOTOROLA INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Texas
(1:05-CV-539)
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
For this action under the Employee Retirement Income Security
Act of 1974 (ERISA), Dan Whatley appeals the summary judgment
against his challenge to the denial of short-term disability
benefits under the Motorola Disability Income Plan (the Plan).
Whatley, a Motorola employee, suffered a neck injury in 1997,
during a turbulent airplane flight. He continued working for
Motorola until March 2002, when he went on leave for pain related
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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to the 1997 injury. Later that March, Whatley was seen by a
physician, who diagnosed neck and spine injuries and declared him
unable to work pending further medical evaluation. Whatley was
reevaluated on 14 May and diagnosed with chronic neck pain, but
released to work with no restriction. On 22 May, Whatley underwent
an unrelated surgical procedure but was released to work as of June
2002. On 20 June, Whatley visited a third physician who agreed to
certify him as disabled, but only until he could meet with a fourth
physician in July 2002.
Whatley applied for short-term disability benefits under the
Plan for the 180-day period beginning on 20 June 2002. The Plan is
maintained and administered by Motorola. Whatley provided the Plan
with medical information from the physicians with whom he had
consulted. In July 2002, after reviewing his application, the Plan
denied his benefits request.
Whatley appealed the decision in January 2003, providing new
information from a physician who had found Whatley disabled as of
24 July 2002. Another document, however, completed by that same
physician, suggested Whatley was no longer disabled as of November
2002. Motorola arranged for another examination of Whatley. That
physician concluded Whatley was not disabled. The Plan denied
Whatley’s appeal in March 2003.
Whatley filed this action under ERISA, 29 U.S.C. §
1132(a)(1)(B), claiming the Plan abused its discretion in denying
benefits. On cross motions for summary judgment, the district
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court, finding substantial evidence supported the Plan’s actions,
awarded judgment to the Plan in November 2006.
A summary judgment is reviewed de novo, applying the same
standards as the district court. See Robinson v. Aetna Life Ins.
Co., 443 F.3d 389, 392 (5th Cir. 2006). Because the Plan
administrator has discretion to determine benefits claims, the
administrator’s interpretation of the plan terms is reviewed for
abuse of discretion. Duhon v. Texaco, Inc., 15 F.3d 1302, 1305
(5th Cir. 1994). “[O]ur review of the administrator's decision
need not be particularly complex or technical; it need only assure
that the administrator's decision fall somewhere on a continuum of
reasonableness — even if on the low end”. Vega v. Nat'l Life Ins.
Serv. Co., 188 F.3d 287, 297 (5th Cir. 1999) (en banc). “Where,
however, an administrator's decision is tainted by a conflict of
interest, the court employs a ‘sliding scale’ to evaluating whether
there was an abuse of discretion.” MacLachlan v. ExxonMobil Corp.,
350 F.3d 472, 478 (5th Cir. 2003). This approach does not change
the applicable standard of review, but only requires a reduction in
the amount of deference provided to a plan administrator’s
decision. Id.
Whatley claims the district court’s standard of review was too
deferential to the Plan. He contends the administrator had
numerous conflicts of interest and committed numerous procedural
errors warranting a substantial lessening of deference;
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accordingly, the district court should have applied an almost de
novo standard of review. Whatley offers no evidence of any
conflict of interest, however, and the claimed three procedural
errors, discussed below, do not warrant a lessening of the
deference accorded the administrator, nor do his contentions about
the asserted errors show an abuse of discretion.
Whatley first contends the Plan administrator failed to
consider the Social Security Administration’s (SSA) having awarded
Whatley disability benefits. Whatley offers no evidence that the
Plan administrator failed to consider the SSA award. Furthermore,
the Plan administrator’s denial of benefits was supported by
substantial evidence in the record. Ellis v. Liberty Life Assur.
Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004) (“If the plan
fiduciary’s decision is supported by substantial evidence and is
not arbitrary and capricious, it must prevail.”). The district
court considered the evidence submitted by Whatley and found: two
of Whatley’s treating physicians had released him to work as of 20
June; and a third doctor, who had certified Whatley as disabled,
admitted he had not performed disability evaluations and had agreed
to certify Whatley only to fill in the gap until Whatley’s next
appointment with a different physician.
Whatley next contends that the Plan’s failure to include a
copy of his job description in the administrative record evidences
abuse of discretion. As the district court correctly determined,
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Whatley’s claim is unavailing; even if his contentions are correct,
he does not offer evidence to support his assertion that the Plan
administrator failed to consider Whatley’s ability to perform his
job.
Finally Whatley asserts: the Plan administrator applied the
wrong definition of disability in resolving his claim. Because
Whatley raises this issue for the first time on appeal, we do not
consider it. Texas Commercial Energy v. TXU Energy, Inc., 413 F.3d
503, 510 (5th Cir. 2005), cert. denied, 126 S. Ct. 1033 (2006).
AFFIRMED
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