                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 29 2010

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

SHARON SELEINE,                                  No. 09-55257

              Plaintiff - Appellant,             D.C. No. 8:07-cv-01214-VBK

  v.
                                                 MEMORANDUM*
FLUOR CORPORATION LONG-TERM
DISABILITY PLAN, an ERISA plan,

              Defendant - Appellee.


                   Appeal from the United States District Court
                        for the Central District of California
                   Victor B. Kenton, Magistrate Judge, Presiding

                     Argued and Submitted September 2, 2010
                              Pasadena, California

Before: KOZINSKI, Chief Judge, O’SCANNLAIN and GOULD, Circuit Judges.

       Sharon Seleine appeals from the district court’s judgment in favor of the

Fluor Corporation Long-Term Disability Plan (“Plan”) after a bench trial. The

Plan terminated Seleine’s disability benefits after the administrator, Life Insurance

Company of North America (“LINA”), determined that she did not meet the Plan’s


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
“any occupation” definition of disability. The facts are known to the parties and

will not be repeated here except to the extent necessary.

                                          I

      Seleine contends that the district court misapplied the abuse-of-discretion

standard of review by failing to accord sufficient weight to LINA’s structural

conflict. Such conflict bears little weight, however, absent evidence that it “tainted

the entire administrative decisionmaking process.” Montour v. Hartford Life &

Accident Ins. Co., 588 F.3d 623, 631 (9th Cir. 2009). The district court’s

conclusion that such evidence is lacking was not clearly erroneous. Furthermore,

even if Seleine were correct, remand would not be required given the district

court’s alternative holding that it would uphold the benefits decision on de novo

review. See Pannebacker v. Liberty Life Assurance Co. of Bos., 542 F.3d 1213,

1218 (9th Cir. 2008).

                                          II

      We reject the contention that Seleine was entitled to “any occupation”

benefits merely because she was awarded “own occupation” benefits under the

Plan in a prior action. Because the definition of disability under the “any

occupation” standard is more stringent and covers a later time period, Seleine’s

entitlement to “own occupation” benefits lacks any preclusive effect in this action.


                                          2
See United States v. Edwards, 595 F.3d 1004, 1013 (9th Cir. 2010); accord Muniz

v. Amec Constr. Mgmt., Inc., No. 09-55689, 2010 WL 4227877, at *5 (9th Cir. Oct.

27, 2010) (noting that the initial determination that a claimant is disabled does not

“operate[] forever as an estoppel so that an insurer can never change its mind”

(internal quotation marks omitted)). Nor does the law of the case help Seleine,

since entitlement to “any occupation” benefits was not considered or decided in the

prior action. See United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995).

                                         III

      The district court correctly held that LINA’s decision to terminate Seleine’s

benefits was not an abuse of discretion. LINA ordered an independent medical

examination, and the examiner concluded that Seleine’s “significant subjective

complaints” were “grossly disproportionate to her objective findings.” ER 147.

During the forty-minute examination, Seleine did not display any pain or distress

while sitting, standing, or walking, despite her claims of debilitating neck and back

pain. The examiner noted that Seleine’s x-rays and MRI “revealed only

degenerative changes, reasonably consistent with [her] age.” Id. The examiner

therefore concluded that Seleine was able to sit continuously for fifty minutes per

hour, with a ten-minute break to reduce stiffness. A peer reviewer agreed with the

conclusions of the independent medical examiner, and a vocational expert


                                          3
identified several sedentary occupations that Seleine could perform in light of her

training, education, and experience. LINA reasonably determined from this

information that Seleine was not disabled under the “any occupation” definition.

      LINA was not required to credit the opinions of Seleine’s treating physicians

or the neurosurgeon hired by her lawyer. See Black & Decker Disability Plan v.

Nord, 538 U.S. 822, 831 (2003). Nor was LINA bound by the Social Security

Administration’s decision to award Seleine disability benefits.1 See Montour, 588

F.3d at 635. We are unpersuaded that LINA’s decision to rely on other evidence

meant that it ignored Seleine’s evidence or reached a biased result. Rather, its

decision was well within the discretion granted to it as the plan administrator. Id.

at 629–30.

                                         IV

      For the foregoing reasons, we conclude that the district court did not err in

upholding LINA’s termination of Seleine’s disability benefits.

      AFFIRMED.




      1
       Although LINA failed to explain why it reached a different conclusion than
the Social Security Administration, we are satisfied that such failure did not taint
the decisionmaking process given the significant differences between the benefits
determinations under the Social Security Act and under an ERISA plan. See Black
& Decker Disability Plan, 538 U.S. at 832–34.
                                          4
