     Case: 13-30795      Document: 00512488447         Page: 1    Date Filed: 01/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-30795
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          January 3, 2014
SUSAN NUGENT,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff - Appellant
v.

AETNA LIFE INSURANCE COMPANY,

                                                 Defendant - Appellee




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                              USDC No. 2:12-CV-65


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Susan Nugent brought this lawsuit against
Defendant-Appellee Aetna Life Insurance Company alleging that she was
denied long-term disability benefits in violation of provisions of the Employee
Retirement Income Security Act.              The district court granted summary
judgment in Aetna’s favor, holding that the plan administrator did not abuse
its discretion in determining that Nugent was not eligible for benefits. Nugent


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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appeals on the grounds that the plan administrator did not afford sufficient
weight to the Social Security Administration’s earlier determination that she
is disabled and that it failed to fully evaluate some of the medical evidence.
Because we find that the plan administrator’s decision is supported by
substantial evidence and is neither arbitrary nor capricious, we AFFIRM the
judgment of the district court.
                  I.    Factual and Procedural Background
      While working as a bookkeeper for Total Safety USA, Inc., Susan Nugent
purchased a long-term disability insurance policy through her employer with
Aetna Life Insurance Company. Nugent was later diagnosed with colorectal
cancer, and she left her position to undergo treatment, including
chemotherapy, which lasted until October 2009. Nugent filed a claim for long-
term disability benefits with Aetna based on her cancer and related side-
effects,   including   chemotherapy-induced      neuropathy.      Aetna’s    plan
administrator approved her application for benefits on April 30, 2009.
      After approving her application, Aetna assisted Nugent in applying for
disability insurance benefits through the Social Security Administration
(“SSA”). On February 19, 2010, the SSA determined that Nugent was disabled
within the meaning of the Social Security Act as a result of the physical
limitations resulting from her cancer and its treatment, and it granted her
application for benefits.
      Nugent’s cancer treatment was successful. In December 2009 and March
2010, PET scans confirmed that her cancer was in remission.            However,
Nugent believed that she could not work due to residual side effects of her
treatment, including the pain from her neuropathy and incontinence issues.
As time passed, though, medical testing revealed that many of her side effects
diminished. On May 10, 2011, Aetna notified Nugent that her long-term
disability benefits would be terminated because the plan administrator found
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that she was no longer disabled as defined by her insurance plan. The plan
administrator relied on medical records evincing the improvement in her
condition after the SSA awarded her benefits.
      Nugent appealed Aetna’s denial of benefits, but Aetna upheld its
determination. Nugent filed this lawsuit against Aetna in federal court on
January 10, 2012. The parties discovered that due to a technical error, Aetna
had not received the complete SSA determination, so the parties jointly moved
to resubmit the claim to Aetna. The district court granted the motion, and
Aetna reconsidered the claim in light of the full SSA opinion. It issued a
supplemental determination on November 5, 2012, in which it again
determined that it would terminate Nugent’s benefits because she was no
longer disabled under the terms of the policy.
      The matter returned to district court, and the parties filed cross-motions
for summary judgment. The district court denied Nugent’s motion, granted
Aetna’s motion, and entered judgment in Aetna’s favor. It held that: the plan
administrator’s denial of benefits was supported by substantial medical
evidence; a conflict of interest existed in the case, but there were no facts
showing that this conflict should be given additional weight in reviewing the
decision; and that the plan administrator properly considered the SSA award
in making its determination. The district court explained that some of the
medical evidence showed that Nugent’s condition had improved after the SSA
made its determination. Based on this evidence, the plan administrator’s
decision was neither arbitrary nor capricious. Nugent timely appealed.
                           II.   Standard of Review
      We review de novo the district court’s conclusion that an Employee
Retirement Income Security Act (“ERISA”) plan administrator did not abuse
its discretion in denying disability benefits. Crowell v. Shell Oil Co., 541 F.3d
295, 312 (5th Cir. 2008).        Under this approach, we review the plan
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administrator’s decision from the same perspective and with the same
standard of review as the district court. Anderson v. Cytec Indus., 619 F.3d
505, 512 (5th Cir. 2010).     When a benefits plan’s terms grant the plan
administrator discretionary authority to determine eligibility for benefits or
construe the terms of the plan, which it does here, we review the determination
to deny benefits for abuse of discretion.        Id.   We will affirm a plan
administrator’s determination to deny benefits if it is “supported by
substantial evidence and is not arbitrary or capricious[.]” Ellis v. Liberty Life
Assurance Co. of Boston, 394 F.3d 262, 273 (5th Cir. 2004). “The fact that the
evidence is disputable will not invalidate the decision; the evidence need only
assure that the administrator’s decision fall somewhere on the continuum of
reasonableness—even if on the low end.” Porter v. Lowe’s Cos., Inc.’s Business
Travel Accident Ins. Plan, 731 F.3d 360, 363–64 (5th Cir. 2013) (internal
quotation marks and footnote omitted).
                                III.   Discussion
      In reviewing Aetna’s decision to terminate Nugent’s long-term disability
benefits, we weigh several case-specific factors. Metro. Life Ins. Co. v. Glenn,
554 U.S. 105, 117 (2008). Any one factor may serve “as a tiebreaker when the
other factors are closely balanced, the degree of closeness necessary depending
upon the tiebreaking factor’s inherent or case-specific importance.” Id. Factors
may include the medical evidence, structural conflicts of interest, and whether
the SSA has awarded benefits. Schexnayder v. Hartford Life & Accident Ins.
Co., 600 F.3d 465, 469–71 (5th Cir. 2010). When one of the factors is an
existing SSA determination finding that a claimant is disabled, the plan
administrator must address the SSA’s decision in its determination; failure to
do so renders a determination procedurally unreasonable.            Id. at 471.
However, the duty to acknowledge a contrary SSA determination is not a duty
to afford the determination any specific weight. A plan administrator need
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only consider the SSA’s determination, but it may conclude that the medical
evidence supporting denial is more credible. Id. at 471 n.3.
      On appeal, Nugent challenges the plan administrator’s treatment of the
SSA’s February 2010 determination that she is disabled. Specifically, she
argues that the administrator should have given more deference to the SSA’s
determination since the definition of “disability” applied by the SSA is
arguably more stringent than the definition employed by Aetna. However,
Nugent’s argument contains two fatal flaws. First, we only require that a claim
administrator address a contrary decision as a factor. Nugent urges us to give
the SSA’s decision more weight because of her belief that its definition of
disability is arguably harder to meet. Without opining on whether the SSA’s
definition is more or less stringent than the definition of disability in Nugent’s
plan, Nugent’s proposed treatment of the SSA determination is contrary to this
circuit’s clear requirement that the plan administrator need not afford the
agency’s findings and conclusions any special deference. Id. The ultimate
weight afforded the determination is case-specific and depends on the
balancing of the competing factors. Aetna discussed the SSA determination,
so its decision is not procedurally unreasonable.
      Second, Nugent’s fixation on the meaning of “disability” suggests that
Aetna ultimately afforded the SSA determination little weight because of the
technical differences between Aetna’s and the SSA’s definitions.             This
characterization is incorrect.     Aetna’s decision not to give the SSA’s
determination weight stemmed largely from the fact that it was based on
outdated medical records. According to Aetna, medical evaluations of Nugent
following the SSA’s determination in February 2010 revealed that Nugent’s
cancer was in remission and her neurological symptoms had lessened. Nugent
argues that Aetna has not pointed to any medical records that would support
this conclusion, but the record contains PET scans from 2009 and 2010, which
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reveal that her cancer was in remission; several “benign” and “normal”
neurological exams between February 2010 and May 2011; an EMG study from
December 2010 that was “normal” and revealed no evidence of neuropathy,
plexopathy or radiculopathy; and numerous “normal” examinations by her
primary care physician.       Furthermore, in April 11, 2011, a neurologist
performed a peer review of the medical record and opined that there was no
objective evidence that Nugent had any functional impairments that would
preclude work.       Thus, Nugent’s suggestion that the plan administrator
dismissed the SSA’s determination solely based on the difference in the
definitions of “disability” ignores the fact that there was ample evidence in the
record to show that the SSA’s determination no longer reflected Nugent’s
physical limitations as of May 2011. Given the change in Nugent’s condition,
we find no error in the plan administrator’s evaluation and consideration of
the SSA opinion.
         Nugent only vaguely challenges Aetna’s determination that the record
demonstrates an improvement in her medical condition between February
2010 and May 2011. She argues that Aetna failed to fully consider three
documents that support her claim that she experiences neuropathy and cannot
work. However, Nugent does not claim that this evidence is so persuasive as
to overwhelm the contrary medical evidence and render the plan
administrator’s decision unreasonable. As the district court correctly noted,
these medical documents make Aetna’s determination debatable but not
arbitrary and capricious.     Since Nugent does not expressly challenge the
sufficiency of the medical evidence supporting the plan administrator’s
decision to terminate her benefits, we will not consider it here.
                                 IV.   Conclusion
         For the aforementioned reasons, we AFFIRM the judgment of the district
court.
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