           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            July 10, 2009

                                       No. 08-40052                    Charles R. Fulbruge III
                                                                               Clerk

PEGGY SWEENEY

                                                   Plaintiff-Appellant
v.

AETNA U.S. HEALTHCARE

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:04-CV-449


Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Appellant Peggy Sweeney brought suit in federal district court against
Aetna U.S. Health Care (Aetna) after Aetna denied her claim for long term
disability benefits pursuant to an ERISA plan. Sweeney and Aetna both moved
for summary judgment, and the district court found in favor of Aetna, entering
a take-nothing judgment and awarding costs to Aetna. Sweeney appealed to this
Court, and the day before briefing was completed, “the Supreme Court
enunciated a refined standard for such conflict-of-interest situations under

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-40052

ERISA.” Sweeney v. Aetna U.S. Healthcare, 284 F. App’x 207 (5th Cir. 2008)
(citing Metro. Life Ins. Co. v. Glenn, --- U.S. ----, 128 S. Ct. 2343 (2008)). Thus,
this Court remanded the case to allow the district court to consider its analysis
in light of Glenn. Id. On remand, the district court found that Glenn did not
affect its initial ruling that affirmed the denial of benefits.      Sweeney now
appeals.
      Sweeney first contends that the district court misapplied the recent
Supreme Court’s analysis in Glenn. In Glenn, the Supreme Court explained that
when an employer or insurance company has the dual role of determining
whether an employee is eligible for benefits and then paying the benefits, a
conflict of interest is created. 128 S. Ct. at 2346. The Court also opined that “a
reviewing court should consider that conflict as a factor in determining whether
the plan administrator has abused its discretion in denying benefits.”           Id.
Further, “the significance of the factor will depend upon the circumstances of the
particular case.” Id. As noted above, this Court remanded the case to allow the
district court to review it in light of Glenn. On remand, the district court did so
and then entered an order once again finding Aetna did not abuse its discretion.
In its order, the district court thoroughly discussed Glenn and applied its
analysis to the facts of Sweeney’s case.
      Nonetheless, Sweeney contends that the district court erred in not giving
more weight to the conflict of interest demonstrated by Aetna’s actions. Sweeney
asserts that the evidence shows that Aetna “cherry picked” evidence, took
inconsistent positions, and failed to provide all the information to the physician
it hired to review Sweeney’s medical evidence. As the Supreme Court made
clear in Glenn, even when there is a higher likelihood that the insurer’s conflict
affected its decision to deny the claim, the standard of review does not become
de novo. Glenn, 128 S.Ct. at 2350–53. The standard of review is still abuse of
discretion. As noted below, the record evidence of Sweeney’s alleged disability

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is not sufficient for us to find that Aetna abused its discretion. More to the
point, even if we give more weight to the factor of conflict of interest, we would
still find that Aetna did not abuse its discretion in denying the instant disability
claim.
      Sweeney next contends that the district court erred in granting Aetna’s
motion for summary judgment. We review de novo the district court’s grant of
summary judgment in an ERISA case, applying the same standards as the
district court. Wade v. Hewlett-Packard Dev. Co. LP Short Term Disability Plan,
493 F.3d 533, 537 (5th Cir. 2007). The district court ruled that Aetna did not
abuse its discretion in denying Sweeney’s claim. “In applying the abuse of
discretion standard, we analyze whether the plan administrator acted arbitrarily
or capriciously.” Sweatman v. Commercial Union Ins. Co., 39 F.3d 594, 601 (5th
Cir. 1994) (citation and internal quotation marks omitted).              The plan
administrator’s decision will be upheld if it is supported by substantial evidence.
Corry v. Liberty Life Assur. Co. of Boston, 499 F.3d 389, 397 (5th Cir. 2007).
      Here, the evidence of Sweeney’s disability is rather weak.          Sweeney
contends that she does not have sufficient ability to lift the amount of weight
required by her occupation. However, one of her treating physicians found that
Sweeney had normal strength and symmetric reflexes.            Moreover, Aetna’s
physician, Dr. Ferrante, conducted an extensive review of Sweeney’s medical
records and concluded that the evidence did not demonstrate any “true
limitations” on Sweeney.       Dr. Ferrante did find that the diagnosis of
fibromyalgia itself warranted a restriction from heavy work. Thus, Dr. Ferrante
found such a restriction would allow sedentary to light work.       Dr. Ferrante’s
report constitutes substantial evidence to support the denial of disability
benefits. See Sweatman, 39 F.3d at 601–03 (holding that because the insurer’s
decision was a permissible choice between the opinions of its physician and the
employee’s physicians, the denial of benefits was not arbitrary and capricious).

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Accordingly, Sweeney has failed to show that Aetna’s decision to deny benefits
was arbitrary and capricious.
       Finally, Sweeney contends that the district court erred in taxing the costs
against her. The applicable ERISA statute provides that “[i]n any action under
this subchapter. . . , the court in its discretion may allow a reasonable attorney’s
fee and costs of action to either party.” 29 U.S.C. § 1132(g)(1). In ERISA cases,
this Court reviews an award of costs for abuse of discretion.                        Wade v.
Hewlett-Packard Dev. Co. LP Short Term Disability Plan, 493 F.3d 533, 541 (5th
Cir. 2007).
       Sweeney contends that the award of costs was improper because (1) there
is no presumption that costs are awarded to the prevailing party under §
1132(g)(1), and (2) the district court did not consider the five factors set forth in
Iron Workers Local No. 272 v. Bowen, 624 F.2d 1255, 1266 (5th Cir. 1980).1 This
Court has rejected a very similar challenge to an award of costs under §
1132(g)(1). In Wade, the district court awarded costs to the prevailing party but
did not cite § 1132(g)(1). 493 F.3d at 541–43. Recognizing that our precedent in
this area of law was conflicting, this Court noted that the rule was that the
“earliest panel decision controls.” Id. at 542. We stated that Salley v. E.I.
DuPont de Nemours & Co., 966 F.2d 1011, 1017 (5th Cir. 1992), was the “earliest



       1
           In Bowen, this Court stated that:

       In deciding whether to award attorneys’ fees to a party under section 502(g),
       therefore, a court should consider such factors as the following: (1) the degree
       of the opposing parties’ culpability or bad faith; (2) the ability of the opposing
       parties to satisfy an award of attorneys’ fees; (3) whether an award of attorneys’
       fees against the opposing parties would deter other persons acting under similar
       circumstances; (4) whether the parties requesting attorneys’ 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.

624 F.2d at 1266 (footnote omitted).

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panel decision to deal directly with the award of costs under ERISA.”         Id.
(emphasis added). We found that prior to Salley, “it was an open question
whether the ‘prevailing party’ test, instead of the Bowen factors test, could be
adopted for awards of costs and attorney’s fees under ERISA.” Id. at 543. Thus,
our reading of the precedent was that Salley established that the “prevailing
party” test applied to the award of costs for purposes of ERISA’s fee-shifting
provision. Id. We therefore found that the district court did not abuse its
discretion in awarding costs to the prevailing party. Id.
      Here, as in Wade, the district court did not cite § 1132(g)(1) or expressly
consider the Bowen factors. Nonetheless, in view of our holding in Wade, the
district court did not abuse its discretion in awarding costs to the prevailing
party, Aetna.
      For the above reasons, the district court’s judgment is AFFIRMED.




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