* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this o pinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-31146

Summary Calendar

ELDRIDGE HUNTSBERRY,

Plaintiff-Appellant,

versus

LIFE INSURANCE COMPANY OF NORTH AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 97-CV-1777

June 14, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM: *

Eldridge Huntsberry, a ret ired Uno cal employee, brought a claim for long-term disability

against Life Insurance Company of North America (“LINA”), the claim fiduciary for the long-term

disabilit y plan. The district court granted LINA’s motion for summary judgment which Huntsberry

now appeals. We affirm.2 F ACTUAL AND P ROCEDURAL B ACKGROUND

From 1977 until his retirement in May 1997, Unocal emplo yed Hunt sberry as a mechanic.

In April 1994, Huntsberry suffered an injury to his back which led him to request placement in a

position which did not require heavy lift ing. Nevertheless, Huntsberry continued working in the same

ca pacit y unt il August 17, 1995 at which time he informed Unocal that he would retire effective

September 1, 1995. On September 21, 1995, Huntsberry informed Unocal that he was not going to

retire. Unocal then placed him on leave with pay until October 3, 1995.

Beginning in January 1995, Huntsberyy received medical attenti on from three physicians and

a therapist who performed a Functional Capacities Evaluation (“FCE”). Dr. Donald M. Molenaar

performed a physical examination o n Huntsberry and found that Huntsberry experienced leg pain,

fatigue and elevated blood pressure with exercise. Dr. Molenaar temporarily certified Huntsberry for

work and referred him to an orthopedic surgeon, Dr. Michael J. Duval, for further examination. Dr.

Duval’s examination led him to conclude that years of heavy mechanical labor was slowly causing

Huntsberry to develop degenerative discs in his back. Although Dr. Duval found that a lumbosacral

corset would permit Huntsberry to continue to work, he indicated that he did not think Huntsberry

was ready to return to work. Dr. Duval’s subsequent examinations of Huntsberry on October 10 and

October 26, 1995 revealed that Huntsberry’s physical therapy regimen was not producing positive

results thereby reducing the likelihood of Huntsberry returning to his previous job. Unocal placed

Huntsberry on sick leave with pay from October 3, 1995 through April 24, 1996, when it expired.

Huntsberry saw a third physician after he filed his claim for long term disabilit y benefits. On

April 1, 1996, Dr. Gregory Gidman examined Huntsberry upon LINA’s referral. Huntsberry

underwent a series of examinations including an MRI, EMG, nerve condition studies and a bone scan.

The results of the EMG and the nerve condition examinations were normal but the MRI and bone

scan results indicated a small focal disc protrusion. Overall, Dr. Gidman concluded that Huntsberry

had reached maximum medical improvement and had no indication of any permanent physical

impairment. Dr. Gidman further explained that a FCE would offer some validation of Huntsberry’s3

subjective complaints.

Huntsberry met Duane Lege, a physical therapist, who performed the FCE on August 14 and

15, 1996. Lege observed that Huntsberry was uncooperative, unnecessarily limiting himself and not

expending full maximum eff o rt . The therapist further described Huntsberry as demonstrating

inappropriate pain behavior and engaging in extremely excessive behavior such as flailing his upper

extremities; lying on the floor on several occasions; and excessive shaking and trembling of the body.

Throughout the entire test, the polar heart rate monitor did not show the customary rise in heart rate

associated with maximal efforts. According to the therapist, Huntsberry’s sub-maximal efforts

throughout the examination undermined his abilit y to make a recommendation o n whether

Huntsberry’s physical abilities matched the job description of mechanic.

Upon its review of the administrative record, LINA denied Huntsberry’s claim for long-term

disabilit y benefits. Huntsberry brought an act io n for denial of benefits under the Employment

Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001, et seq . (1997) in state court. On

September 5, 1997, the case was removed to federal district court where the court adj udi cated

LINA’s motion for summary judgment. Finding no genuine issues of material fact, the district court

granted LINA’s motion for summary judgment on July 24, 1998. The court also denied Huntsberry’s

subsequent motion to reconsider judgment in light o f t his court’s decision in V ega v. Life Ins.

Services, Inc. , 145 F.3d 673 (5 th Cir. 1998). Huntsberry timely filed his notice of appeal.

D ISCUSSION

We review the district co urt ’s grant of summary judgment d e novo

. See Guillory v. Domtar

Industries, Inc.

, 95 F.3d 1320, 1326 (5th Cir. 1996). This review requires the same analysis

employed by the district court. See id

. (citing Turnage v. General Elec. Co. 953 F.2d 206, 212 (5th

Cir. 1992)). Summary judgment is appropriate when “the pleadings, depositions , answers to

interrogatories, and admissions on file along with the affidavits filed in support of the motion, if any,

indicate that there is no gen uine issue o f material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56.; s ee also

, Celotex Corp. v. Catrett

, 477 U.S. 317,4

322 (1986). The essence of our review rests on “whether the evidence presents a sufficient

disagreement to require submission to the jury or whether it is so one-sided that one party m ust

prevail as a matter of law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52 (1986).

In F irestone Tire and Rubber Co. v. Bruch

, 489 U.S. 101, 115 (1989), the Supreme Court

established that courts must apply a de novo standard of review in actions brought by ERISA plan

participants who challenge the denial of benefits. However, if the plan vests the plan administrator

with discretionary authority to make eligibilit y determinations or construe the plan's terms, we are to

review for abuse of discretion. S ee id

. We agree with the district court and find that the Unocal plan

grants LINA discretionary authority to determine a plan participant’s eligibilit y for long-term

disability benefits. Accordingly, we review the LINA’s denial of Huntsberry’s request for benefits

for abuse of discretion.

In our review for abuse of discretion, we seek to determine whether LINA acted arbitrarily

or capriciously in denying benefits. S ee Sweatman v. Commercial Union, Ins. Co.

, 39 F.3d 594, 601

(5 th Cir. 1994). Nothing in the record indicates arbitrary and capricious conduct on the part of LINA.

On the contrary, LINA considered all of the available medical information and the FCE. Combined

this information lea ves no genuine issues of material fact. Despite Huntsberry’s subjective

complaints, which remain medically unsupported, there is no indication that he is disabled or that he

otherwise qualifies for long-term disabilit y benefits. Most t elling in this regard is Dr. Gidman’s

observation that Huntsberry suffered no phys ical impairment of the whole person or exhibited

objective evidence of any permanent impairment or functional limitation.

As in the court below, Huntsberry significantly relies on this court’s decision in Vega. The

case has been scheduled for rehearing en banc

, see Vega v. Life Ins. Services, Inc.

, 167 F.3d 197 (5 th

Cir. 1999); consequently, the prior opinion is without precedential effect. S ee

, 5 T H C IR

. R.35 ("[T]he

effect of granting a rehearing en banc is to vacate the previous opinion and judgment of the Court and

to stay the mandate."); see also

, de Aguilar v. Boeing Co.

, 47 F.3d 1404, 1411 (5th Ci r.), c ert.

denied

, 516 U.S. 865, 116 S.Ct. 180 (1995). Nevertheless, unlike the court in V ega

, we cannot find5

that LINA conducted an unreasonably lax or bad faith investigation. Therefore, V ega is inapplicable

and we need not delay ou r adjudication of this matter pending e n banc resolution of Vega

.

Additionally, we summarily reject Huntsberry’s argument that a conflict of interest exists which

requires this court to (1) find an abuse of discretion; and (2) consider information outside the

administrative record. The possible existence of a conflict of interest does not mandate a finding of

abuse or consideration of additional information. Instead, it would require us to examine closely the

a ct io ns of LINA. Yet, even a close examination of LINA’s actions fails to reveal conduct which

would support the continued prosecution of this case.6 C ONCLUSION

For the ascribed reasons as well as those articulated by the district court, we AFFIRM the

judgment below.