                                                     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this opinion should not be published and is not precedent except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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