                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                            FEBRUARY 22, 2007
                               No. 06-15156                 THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 01-02241-CV-HS-S

GLORIA WATTS,


                                                   Plaintiff-Appellant,

                                    versus

BELLSOUTH TELECOMMUNICATIONS, INC.,

                                                   Defendant-Appellee.



                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                             (February 22, 2007)

Before TJOFLAT, CARNES and HULL, Circuit Judges.

PER CURIAM:

     This is the second time we’ve had occasion to hear this ERISA case. In the
first appeal we reversed and remanded the district court’s grant of summary

judgment for BellSouth based on Watts’ failure to exhaust her administrative

remedies. Watts v. BellSouth Telecomm., Inc., 316 F.3d 1203, 1204 (11th Cir.

2003). We concluded that the exhaustion bar does not apply where the failure to

exhaust administrative remedies is the result of language in the summary plan

description that the claimant reasonably interpreted as meaning that exhaustion was

unnecessary. Id.

      On remand the district court again granted summary judgment for BellSouth.

This time the district court predicated its decision on Watts’ failure to present

evidence raising a genuine issue of material fact about whether the decision of

Kemper (BellSouth’s designated claims administrator) to deny short and long term

disability benefits to Watts was correct. Watts appeals the summary judgment for

BellSouth.

      Watts first argues that the district court erred in granting summary judgment

for BellSouth when it considered the report of Kemper’s peer review physician as

evidence that the denial of Watts’ benefits claim was correct. According to Watts,

the peer reviewer’s report is not medical evidence that can be considered by the

district court because the peer reviewer did not conduct an examination or medical

tests of Watts, and was limited in his review to the information Kemper gave him.



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      The district court did not err in considering the peer review report as

evidence that the denial of Watts’ benefits was proper. As the district court

explained, “the United States Supreme Court has clarified, in the area of ERISA,

opinions of treating physicians are not entitled to any greater deference than those

of reviewing physicians.” (R3:78:19) (citing Black & Decker Disability Plan v.

Nord, 538 U.S. 822, 831, 123 S. Ct. 1965, 1970 (2003) (noting that nothing in

ERISA “suggests that plan administrators must accord special deference to the

opinions of treating physicians”)).

      Watts also contends that the district court used improper criteria to conduct

its de novo review of the denial of benefits. According to her, the district court,

like Kemper, considered only objective evidence related to her claimed disability,

even though BellSouth’s disability plan did not provide that only objective

evidence was relevant to the claim.

      There are two problems with Watts’ argument. For one thing, where the

plan puts the burden on the claimant to prove that she is disabled, it is implicit in

the requirement of proof that the evidence be objective. See, e.g., Brucks v. Coca-

Cola Co., 391 F. Supp. 2d 1193, 1205 (N.D. Ga. 2005) (“The requirement that a

plaintiff submit objective evidence of the impact of a diagnosed disease, illness or

other condition is logical and necessary . . . . The objective-evidence requirement



                                           3
promotes integrity in the application of the law. It assures claimants are treated

fairly and with parity by providing that coverage decisions are not based on

varying subjective expressions by claimants of a disease, illness or condition with

which they have been diagnosed. That is, it requires claimants to establish that the

diagnosed disease, illness or condition results in an actual disability, not just a

perceived one. The requirement of objective evidence also promotes integrity by

assuring there is corroboration for a claimant’s subjective complaints, thus

deterring embellished allegations of the effect of the diagnosed malady as well as

deterring fraud in the claims process.”); Fisk v. Metro. Life Ins. Co., 347 F. Supp.

2d 1271, 1286–87 (S.D. Fla. 2004) (“Case law supports the conclusion that it is

reasonable for a plan administrator to require objective medical evidence even

where the plan does not specifically contain such a requirement. Where a plan

requires proof of continued disability, ‘the very concept of proof connotes

objectivity.’ . . . In the absence of a requirement of objective evidence, the review

of claims for long-term disability benefits would be ‘meaningless because a plan

administrator would have to accept all subjective claims of the participant without

question.’ Furthermore, the fiduciary role of the plan administrator of scrutinizing

claims, protecting the assets of a plan, and paying legitimate claims would be

seriously compromised.” (citations omitted)); Hufford v. Harris Corp., 322 F.



                                            4
Supp. 2d 1345, 1356 (M.D. Fla. 2004) (same).

      We disagree with Watts’ assertion that our decision in Godfrey v. BellSouth

Telecomm., Inc., 89 F.3d 755 (11th Cir. 1996), is to the contrary. Godfrey had

nothing to do with the kind of evidence the claimant must proffer to prove that she

is disabled. Rather, all the Godfrey Court said was that BellSouth could not limit

payment of disability benefits to only those claimants who suffered a loss of

functionality. Id. at 758. The reason is that the plan’s definition of disability was

not limited to only those disabilities that affected the claimant’s functionality. Id.

Disabled “can mean more than physical paralysis or limited limb movement.” Id.

In the present case, unlike in Godfrey, the plan explicitly defined disability as the

inability to perform any type of work as a result of a physical or mental illness.

      Watts’ objective-evidence argument is problematic for a second reason. She

does not point to any subjective evidence in the record which indicates that she is

disabled. Instead, Watts exclusively relies on the reports of her treating physician

and the independent medical examiner to support her contention that there exists a

genuine issue of material fact about whether the denial of her benefits claim was

wrong. But, as the district court explained, the descriptions by Watts’ physician of

Watts’ condition “do not substantiate [her] inability to perform ‘any type of

work’—instead, and to the contrary, they help to bolster the correctness of the



                                           5
decision to deny benefits.” (R3:78:18). Likewise, the independent medical

examiner’s report “does not support an acuity of illness which would preclude any

workability whatsoever.” Id. at 18–19.

      Thus, as the district court concluded, Watts has not pointed to any evidence

in the record—subjective or objective—that would create a genuine issue of

material fact about the correctness of the denial of benefits. The district court’s

summary judgment for BellSouth is due to be affirmed. Because summary

judgment is appropriate even on de novo review of the correctness of the denial

decision, it necessarily follows that Watts’ contention that the plan administrator

acted arbitrarily and capriciously in denying her benefits fails.

      Watts also appeals the district court’s order denying her petition for

attorneys’ fees. She contends that she should be awarded attorneys’ fees for

prevailing in her first appeal, which resulted in reversal of the summary judgment

that was granted to BellSouth on exhaustion of administrative remedies grounds.

      As Watts herself points out in her brief, “[t]he law provides no presumption

in favor of granting attorney’s fees to a prevailing claimant in an ERISA action.”

Freeman v. Cont’l Ins. Co., 996 F.2d 1116, 1119 (11th Cir. 1993). Instead, the

decision to award fees should be guided by the following factors:

      (1) the degree of the opposing parties’ culpability or bad faith; (2) the
      ability of the opposing parties to satisfy an award of attorney’s fees;

                                           6
      (3) whether an award of attorney’s fees would deter other persons
      acting under similar circumstances; (4) whether the parties requesting
      attorney’s fees sought to benefit all participants and beneficiaries of
      an ERISA plan or to resolve a significant legal question regarding
      ERISA itself; and (5) the relative merits of the parties’ positions.

Nachwalter v. Christie, 805 F.2d 956, 962 (11th Cir. 1986). Of these, the district

court said: “The court discretionarily determines that the Eleventh Circuit’s

administrative exhaustion ruling which, in a case of first impression, addressed an

ambiguity exception to this long-standing ERISA remedial requirement and the

lack of any evidence of bad faith or fault on the part of [BellSouth], counter against

awarding any attorney’s fees to [Watts] relating to the appellate process.”

(R3:83:6–7).

      Even assuming that the award of attorneys’ fees might be appropriate to an

ERISA claimant who is not adjudged to have a valid claim, we cannot say that the

district court’s balancing of the Nachwalter factors was an abuse of discretion. See

Florence Nightingale Nursing Serv., Inc. v. Blue Cross/Blue Shield of Ala., 41

F.3d 1476, 1485 (11th Cir. 1995) (“A denial of a petition for attorney’s fees is

reviewed for an abuse of discretion.”). The district court’s order denying Watts

attorneys’ fees for the first appeal is affirmed.

      AFFIRMED.




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