* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

December 24, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60493

Summary Calendar

 

LAWRENCE DUBOSE, JR.,

Plaintiff-Appellant,

versus

THE PRUDENTIAL INSURANCE COMPANY OF AMERICA,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:01-CV-458-GR 

--------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

Lawrence Dubose, Jr., appeals the summary judgment dismissal

of his complaint arising under the Employee Retirement Income

Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Dubose sought

benefits under his employee benefit plan, alleging that he had

become totally and permanently disabled due to coronary artery

disease and elevated blood pressure. He filed suit following

Prudential’s denial of his appeals for benefits. 
No. 03-60493

-2-

We review de novo a summary judgment dismissal and apply the

usual summary judgment rules. Mace v. City of Palestine, 333

F.3d 621, 623 (5th Cir. 2003); Barhan v. Ry-Ron Inc., 121 F.3d

198, 202 (5th Cir. 1997). To defeat summary judgment, the

nonmovant must set forth specific facts showing the existence of

a genuine issue for trial. Fed. R. Civ. P. 56(e). The nonmovant

cannot meet his burden with unsubstantiated assertions,

conclusional allegations, or a scintilla of evidence. Little v.

Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). 

Dubose contends that the district court applied an erroneous

standard of review. He argues that because Prudential was both

the insurer and administrator of the employee benefit plan,

Prudential had a conflict of interest and the district court

should have applied the “sliding scale” standard of review. He

asserts therefore that Prudential’s decision should have been

afforded less deference.

In Vega v. Nat. Life Ins. Servs., Inc., 188 F.3d 287, 296-97

(5th Cir. 1999) (en banc), we held that a conflict is a factor to

be considered in determining whether a plan administrator abused

its discretion in denying a claim for benefits. See Sweatman v.

Commercial Union Ins. Co., 39 F.3d 594, 599 (5th Cir. 1994).

Dubose conceded that Prudential had discretionary authority to

determine his eligibility for benefits under the plan. The

district court recognized Prudential’s conflict, evaluated

Dubose’s asserted reasons to afford less deference to
No. 03-60493

-3-

Prudential’s decision to deny disability benefits, and found no

merit in Dubose’s arguments. Dubose has not shown that the

district court applied an incorrect standard of review. 

Dubose contends that the district court erred in granting

summary judgment. He argues that material factual disputes exist

concerning Prudential’s decision to deny benefits. He asserts

that we should adopt the “treating physician rule” and accord

greater deference to his doctor’s opinion. Dubose argues that

Prudential did not consider the fact that he obtained a favorable

disability finding from the Social Security Administration. He

contends that Prudential did not disclose its relationship with

the independent medical examiner who evaluated Dubose’s file. He

asserts that Prudential completely ignored the opinion of his

treating physician and relied exclusively on an independent

medical examiner’s opinion to deny benefits.

In Black & Decker Disability Plan v. Nord, 123 S. Ct. 1965,

1972 (2003), the Supreme Court rejected a treating physician rule

in ERISA cases. 

Dubose conceded that a favorable ruling by the Social

Security Administration is not binding on an ERISA plan

administrator. Dubose has provided no support for his

allegations that the independent medical examiner’s opinion was

inaccurate or biased. 

The record shows that Prudential based its decision denying

benefits on the objective medical evidence provided by Dubose’s
No. 03-60493

-4-

treating Cardiologist and the independent medical examiner’s

evaluation of Dubose’s medical record. Although Dubose’s primary

treating physician found him to be totally disabled, the record

shows that Prudential rejected the disability finding as not

supported by objective medical evidence. Substantial evidence

supports the disability determination. See Meditrust Fin. Servs.

Corp. v. Sterling Chems. Inc., 168 F.3d 211, 214-15 (5th Cir.

1999). Accordingly, we AFFIRM the judgment of the district

court.