FILED
NOT FOR PUBLICATION OCT 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CONSTANCE FINLEY, No. 09-17778
Plaintiff - Appellee, D.C. No. 4:06-cv-06247-CW
v.
MEMORANDUM *
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY; THE
BOSTON FINANCIAL GROUP LONG-
TERM DISABILITY PLAN,
Defendants - Appellants,
and
DEMPSEY INVESTIGATIONS, INC.,
Defendant.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Argued and Submitted October 7, 2010
San Francisco, California
Before: THOMPSON, SILVERMAN and McKEOWN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Hartford Life & Accident Insurance Company appeals from the district
court’s judgment in favor of Constance Finley after a bench trial. We have
jurisdiction under 28 U.S.C. § 1291 and we reverse.
Finley brought an action against Hartford under the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), for terminating her
benefits under Boston Financial’s Group Long-Term Disability Plan. Finley
claimed to have constant disabling pain in her hands, arms, shoulders, mid to upper
back, and neck that increased with mild physical activities, such as normal
household chores, shopping, and holding a telephone. Video of Finley, however,
showed her vigorously pulling weeds in kneeling and squatting positions, lifting
and carrying objects using both her arms, raising her arms over her head to point
and carry objects, and using tools to scrape, push, and pull without any apparent
difficulty. The following day, Finley left her house to walk her dogs with a purse
strapped over her shoulder and the dogs’ leashes in her hand. Finley drove to a
walking trail, walked the dogs for over an hour, and then brushed them down
before driving home.
After having Finley’s medical history reviewed by multiple doctors,
Hartford concluded that she was capable of performing sedentary work and
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canceled her disability benefits. On review of Hartford’s decision, the district
court found evidence of bias in the reviewing physicians’ reliance on the
surveillance video, certain inferences that the reviewing physicians drew in favor
of Hartford, the fact that none of Hartford’s physicians physically evaluated Finley,
and that Hartford had rendered a biased decision in Montour v. Hartford Life &
Accident Insurance Co., 588 F.3d 623, 629 (9th Cir. 2009). It thus “accorded
significant weight” to the conflict of interest factor and held that Hartford had
abused its discretion.
“We review ‘a district court’s choice and application of the appropriate
standard for reviewing benefits decisions by an ERISA plan administrator’ de
novo.” Id. (quoting Sznewajs v. U.S. Bancorp Amended & Restated Supplemental
Benefits Plan, 572 F.3d 727, 732 (9th Cir. 2009)). Where, as here, a plan grants
the plan administrator discretionary authority to determine eligibility for benefits,
the panel reviews “the administrator’s decision for abuse of discretion.” Id.
“[T]he extent to which a conflict of interest appears to have motivated an
administrator’s decision is one among potentially many relevant factors that must
be considered” in determining whether the administrator abused its discretion. Id.
at 630. The reviewing court must “adjust[] the weight given [the conflict of
interest] factor based on the degree to which the conflict appears improperly to
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have influenced a plan administrator’s decision.” Id. at 631 (citing Abatie v. Alta
Health & Life Ins. Co., 458 F.3d 955, 968 (9th Cir. 2006) (en banc)).
The district court erred in assigning controlling weight to the conflict of
interest factor because, unlike in Montour, the evidence in this case does not
indicate that the conflict “tainted the entire administrative decisionmaking
process.” Id. Hartford did not distort the content of the video or overemphasize its
importance when requesting medical reviews. Nor did Hartford’s doctors
themselves mischaracterize Finley’s activities or rely on the videos to the exclusion
of all other evidence. The district court thought that the doctors relied too heavily
on the videos, but Hartford provided the reviewing physicians guidance to consider
the videos, directing the physicians not to rely too heavily (or too little) on them.
These instructions were an appropriate effort to reduce bias and consider all
available evidence.
This does not mean that Hartford’s decision was entitled to unmitigated
deference. The district court should have reviewed Hartford’s termination decision
with a “moderate degree of skepticism,” as it originally concluded.
Viewing the medical and documentary evidence underlying Hartford’s
decision with a moderate degree of skepticism, Hartford did not abuse its
discretion. Finley’s primary complaint was of disabling pain in her hands, arms,
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shoulders, neck, and mid to upper back. Finley claims her pain is caused by a
rheumatological condition called ankylosing spondylitis. Accepting that Finley
has a rheumatological condition, the functional limitations imposed by that
condition depends upon the degree of pain that she experiences with activity.
It was not an abuse of discretion for Hartford to conclude that Finley lacked
credibility and therefore to discount the value of her self-reported pain incidence,
the heart of her claim and her doctor’s assessments of her health, and place more
weight on the surveillance video. There was sufficient objective evidence that
Finley’s condition did not cause pain rising to the disabling level. See id. at 635
(citing Orn v. Astrue, 495 F.3d 625, 637-38 (9th Cir. 2007)). As the district court
stated in its first order on the merits, the videos show Finley “performing vigorous
yard work requiring the use of her arms in a way that far exceeded her reported
abilities.” Hartford’s physicians watched the videos and they all concluded that
her activities evidenced an ability to work at a level greater than she admitted.
They also agreed that the activities she performed were too strenuous to simply
have been the result of a temporary improvement in her condition.
In contrast, Finley’s physicians did not adequately explain how her activities
in the videos were consistent with their conclusion that she could not work. They
explained that mild physical activity helped to alleviate Finley’s symptoms, but
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that explanation contradicted Finley’s own description of her pain, which she
repeatedly said increased with even mild physical activity. Moreover, Finley’s
rheumatologist provided no individualized basis for his conclusion that she could
not work, relying exclusively on his diagnosis of ankylosing spondylitis to reach
that conclusion.
Again, as the district court originally recognized, “when considered together
with Plaintiff’s self-reported limitations, the video severely damages [Finley’s]
credibility.” Immediately before Finley saw the video, she signed a statement
attesting that she had been unable to perform even mild physical activity for the
past six months. After seeing the video, Finley gave several contradictory
explanations for her activities. First she said that she was in severe pain while
performing the activities, but then later said that she was able to do them because
she was in a period of feeling better. She also stated that it took her two weeks to
recover from the gardening, despite the fact that she walked her dogs for over an
hour and brushed them down the next day.
Given Finley’s lack of credibility and her doctors’ unsupported assertions
that she could not work, it was not unreasonable for Hartford to disbelieve Finley’s
claim that any use of her upper extremities caused her disabling pain. Hartford did
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not abuse its discretion in ultimately concluding that Finley is capable of sedentary
work and terminating her benefits.
REVERSED and REMANDED for the district court to enter judgment in
favor of Hartford.
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