FILED
NOT FOR PUBLICATION DEC 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TERRY ALUISI, No. 09-17828
Plaintiff - Appellant, D.C. No. 1:04-cv-05373-AWI-
SMS
v.
UNUM LIFE INSURANCE COMPANY MEMORANDUM *
OF AMERICA, AKA UNUM Provident;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted December 10, 2010
San Francisco, California
Before: HAWKINS and N.R. SMITH, Circuit Judges, and PRO, District Judge.**
1. The district court did not clearly err in finding that the record was adequate
for review. See Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 629
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Philip M. Pro, United States District Judge for the
District of Nevada, sitting by designation.
(9th Cir. 2009). The record contained current medical records from five doctors;
results of X-rays, MRIs, CT scans, and other diagnostics; correspondence between
Unum and Aluisi and his doctors; and a personal interview with Aluisi. ERISA
requires that the plan administrator engage in a meaningful dialogue and allow the
claimant an opportunity to submit evidence to support his claim. Saffon v. Wells
Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 870 (9th Cir. 2008). This
includes telling the beneficiary, in language he can understand, the reason for the
denial of his claim and what additional information is necessary to perfect his
claim. 29 C.F.R. § 2560.503-1(g)(1). At oral argument Aluisi conceded that
Unum did not violate any of ERISA’s statutory procedures. Unum’s denial letter
clearly explained to Aluisi that his claim was being denied because video
surveillance contradicted his claims that he was in extreme pain after more than
fifteen minutes of sitting, standing, or walking. Aluisi was given the opportunity
to view and respond to the video surveillance and to explain how his back
condition prevented him from working. The record was an adequate basis for
Unum’s decision.
2. We review a district court’s choice and application of the appropriate
standard of review for reviewing benefits decisions by an ERISA plan
administrator de novo. Pannebecker v. Liberty Life Assurance Co. of Boston, 542
2
F.3d 1213, 1217 (9th Cir. 2008). We review the district court’s underlying
findings of fact for clear error. Id.
The district court found that Unum had a structural conflict of interest and a
history of biased claims administration. It also noted that Unum’s use of the
Dictionary of Occupational Titles rather than Aluisi’s actual job description was
minor evidence of a conflict. On the other hand, the court found that Unum had
implemented procedures to prevent bias, which minimized the importance of the
conflict of interest. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008).
Therefore, the court applied a medium level of skepticism to Unum’s
determination to deny benefits. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d
955, 967-68 (9th Cir. 2006) (en banc) (degree of skepticism depends on nature,
extent, and effect of conflict of interest).
On appeal Aluisi argues that minor errors in processing his claim, Unum’s
alleged lies, and some inaccurate medical reviews justify a greater degree of
skepticism. We disagree. First, while Unum made minor errors when requesting
medical records, these errors did not prevent Unum from effectively obtaining and
evaluating the records. Second, Aluisi’s allegation that Unum lied to him or to
other parties is not supported by the record. Finally, while the first medical
reviews by Nurse Cross do show signs of bias, this does not warrant a greater
3
degree of skepticism than the district court applied. Despite Nurse Cross’s bias,
the reviews contain large portions of the original records. In addition, following
her reviews, Aluisi’s claim was granted. Later reviews did not show the same bias.
Aluisi’s claim was denied based on the inconsistency between his observed
activities and his self-reported claims of pain, not Nurse Cross’s evaluations. The
district court’s application of a medium degree of skepticism was therefore
sufficient to account for Unum’s conflict of interest and any minor defects in
Unum’s claims process.
3. We agree with the district court that Unum’s decision was adequately
supported by the record and not an abuse of discretion. Aluisi repeatedly told
Unum that he was unable to work because sitting, standing, or walking for more
than fifteen minutes caused him unbearable pain. He later claimed that this pain
prevented him from working because he could not concentrate. The surveillance
video, however, provided objective evidence contradicting Aluisi’s assertion that
he had unbearable pain. The opinion of a treating physician is not entitled to any
special deference under ERISA, but the plan administrator may not arbitrarily
ignore credible evidence. Black & Decker Disability Plan v. Nord, 538 U.S. 822,
834 (2003). Although Dr. Azevedo disagreed with Unum’s opinion that the video
disproved Aluisi’s disability, Aluisi’s primary physician, Dr. Javaid, agreed with
4
Unum. Moreover, rather than simply ignoring Dr. Azevedo’s opinion, Unum’s
physician adequately explained his reasons for disagreeing with Dr. Azevedo.
Unum did not abuse its discretion by denying Aluisi’s claim.
4. Appellee’s Motion to Strike Portions of Appellant’s Brief and Record
Excerpts Not in the Record is granted.
AFFIRMED.
5