FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIERRO MUNIZ, No. 09-55689
Plaintiff-Appellant,
D.C. No.
v.
2:07-cv-08066-
AMEC CONSTRUCTION MANAGEMENT, CAS-AJW
INC., a Corporation,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
May 7, 2010—Pasadena, California
Filed October 27, 2010
Before: John T. Noonan, Richard R. Clifton and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Clifton
17879
17882 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT
COUNSEL
Charles J. Fleishman (argued) and Paul A. Fleishman,
Northridge, California, for the appellant.
Russell H. Birner (argued) and Adrienne C. Publicover, Wil-
son, Elser, Moskowitz, Edelman & Dicker LLP, Los Angeles,
California, for the appellee.
OPINION
CLIFTON, Circuit Judge:
Dierro Muniz appeals the district court’s decision uphold-
ing Connecticut General Life Insurance Company’s
(“CGLIC”) termination of Muniz’s disability benefits. The
district court held that Muniz did not qualify for disability
benefits under the terms of his disability insurance plan. We
affirm.
I. Background
Muniz was insured under a long-term disability insurance
plan issued by CGLIC as a benefit of his employment with
Morse Diesel International, predecessor of Amec Construc-
tion Management, Inc. This plan is governed by the Employee
Retirement Income Security Act of 1974 (“ERISA”), as
amended, 29 U.S.C. §§ 1001, et seq. Under the CGLIC plan,
a claimant will continue to receive benefits after 24 months if
he is “totally disabled,” which is defined as “unable to per-
form all the essential duties of any occupation for which [he
is] or may reasonably become qualified.”
MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17883
Muniz was diagnosed with HIV in 1989 and stopped work-
ing on August 1, 1991, due to the effects of his infection. He
began receiving total disability benefits under the CGLIC plan
in February 1992. In April 2005, Muniz’s claim came up for
periodic review.
As part of the review process, Muniz completed forms on
which he indicated he had “debilitating fatigue,” “asthma
[that] compounds [him] from being ambulatory,” difficulties
with “concentration and attention span,” and “intermittent
malaise.” Muniz also noted he engaged in light household
activities and exercise. Muniz’s treating physician, Dr. Wil-
liam Towner, completed a Physical Activities Assessment, on
which he checked boxes indicating that he found Muniz could
sit, stand, and walk “occasionally (1-33%) (< 2.5 hours).” Dr.
Towner also indicated that Muniz’s ability to work extended
shifts or overtime fell into the same “occasionally” category.
Based on a review of these forms and Muniz’s medical
records, CGLIC determined in its vocational assessment that
Muniz could perform “sedentary employment,” which quali-
fied him for clerical positions. A CGLIC nurse case manager
also found that the “current medical [record] does not support
the severity of symptoms as stated by [Muniz].”
The vocational assessment and the nurse case manager’s
evaluation were shared with Dr. Towner, and CGLIC
requested that Dr. Towner provide further medical documen-
tation should he disagree with the analysis. Dr. Towner
informed CGLIC that he disagreed with its assessment and he
noted the number of medications Muniz took daily, which left
him “extremely fatigued and unable to concentrate,” as well
as Muniz’s persistent contraction of methicillin-resistant staph
aureus infections. Dr. Towner concluded it was his “profes-
sional medical opinion that Mr. Muniz will be unable to work
in any field, sedentary or otherwise, in the foreseeable future.”
He did not provide any documentation of the fatigue or lack
of concentration.
17884 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT
CGLIC requested medical records from Dr. Towner in sup-
port of his opinion, including testing of Muniz’s cognitive sta-
tus, and after the records were received, CGLIC found them
incomplete and determined that Muniz should undergo a
Functional Capacity Evaluation (“FCE”).
CGLIC attempted to contact Muniz to schedule the FCE
several times over the course of four months without success.
On June 22, 2006, CGLIC sent Muniz a final letter informing
him that it was suspending his benefits due to his failure to
comply with the FCE request, and that his case would be
closed effective July 21, 2006, should he not respond by that
date.
On July 5, 2006, Muniz contacted CGLIC. He explained he
did not receive any CGLIC communication because he did
not use his home phone and he had been in Texas caring for
his parents. Muniz requested that he be allowed to complete
the FCE at a facility in Texas.
CGLIC located a facility in Texas and requested approval
from Dr. Towner, for this facility required a statement of
medical stability from the patient’s doctor before conducting
the FCE. Dr. Towner refused to authorize the exam, stating
that Muniz “suffer[ed] from wasting, fatigue [and being]
unable to participate in any functional evaluation.”
CGLIC then requested Dr. Towner send updated medical
records for Muniz. Based on the existing file material and the
additional records sent by Dr. Towner, a nurse case manager
again found that Muniz’s file was “insufficient to provide a
severity of symptoms that impact function.” CGLIC closed
Muniz’s claim on August 16, 2006, with benefits paid until
September 8, 2006. CGLIC informed Muniz that his “medical
documentation [did] not contain any current findings or docu-
ment the severity of [his] current condition that would prevent
[him] from performing the essential duties of any occupa-
tion.”
MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17885
Muniz filed an administrative appeal. His file was re-
evaluated by a new claim examiner and by the CGLIC medi-
cal director. The medical director noted a lack of evidence of
testing of “functional deficits” that would prevent him from
performing sedentary duties and concluded that the documen-
tation did not support Muniz’s claim.
Muniz again appealed the denial of benefits, alleging pro-
cedural errors on behalf of CGLIC and submitting further
records from a February 2007 visit with Dr. Towner. A new
claim examiner upheld the decision to terminate Muniz’s
claim. Muniz then filed this action in district court pursuant
to ERISA, 29 U.S.C. § 1132(a)(1)(B).
The parties agreed that the district court was to review
Muniz’s claim under the de novo standard, because the
CGLIC policy did not confer discretion upon CGLIC. See
Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962-63
(9th Cir. 2006) (en banc). After conducting a de novo review,
the district court found the administrative record was insuffi-
cient for it to determine whether Muniz was “totally disabled”
under the terms of the plan at the time his benefits were termi-
nated. The court asked counsel for their positions on “appoint-
ing . . . an independent expert to evaluate Muniz and present
an opinion as to his functional capacity,” and counsel for
Muniz noted that the court had the authority to do so, provid-
ing the court with a supporting citation to Walker v. American
Home Shield Long Term Disability Plan, 180 F.3d 1065 (9th
Cir. 1999). The district court subsequently ordered the parties
to submit a joint list of proposed experts.
Muniz and Amec disagreed as to the intent of that order,
Muniz understanding they were to identify HIV experts and
Amec believing they were to identify functional capacity
experts. The parties filed a joint request for clarification, and
the court confirmed that the order required designation of a
functional capacity evaluator. The parties agreed upon a facil-
17886 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT
ity to conduct the evaluation, and on March 25, 2009, Muniz
was tested and evaluated by physical therapist Robert Larson.
Larson concluded that, on the day of the evaluation,
“Muniz demonstrated the capability to perform at a sustained
light to light-medium demand level.” Larson also stated that
for tasks such as sitting, standing, bending, and reaching,
Muniz “performed at competitive levels when compared to
individuals within the same population demographic.” He
characterized Muniz’s activity tolerance and endurance as
“fair to poor”; his body mechanics, pain behavior correlation,
and upper/lower strength as “fair to good”; and his coordina-
tion and pace object control as “good.”
After analyzing the record with the inclusion of the 2009
FCE, the district court concluded that it did not find Muniz
“totally disabled” under the terms of the CGLIC plan as of
September 9, 2006, the day after his benefits were terminated.
This appeal followed.
II. Discussion
“Where, as here, a district court has conducted a de novo
review of an ERISA plan administrator’s decision, we review
the court’s factual findings only to determine whether they are
‘clearly erroneous.’ ” Silver v. Executive Car Leasing Long-
Term Disability Plan, 466 F.3d 727, 732-33 (9th Cir. 2006)
(citing Kearney v. Standard Ins. Co., 175 F.3d 1984, 1095
(9th Cir. 1999) (en banc)). We review a trial court’s decision
to admit or exclude evidence for an abuse of discretion.
Friedrich v. Intel Corp., 181 F.3d 1105, 1110-11 (9th Cir.
1999).
A. The Claimant’s Burden of Proof
[1] Muniz brought suit under ERISA’s civil-enforcement
provision, which allows a claimant “to recover benefits due to
him under the terms of his plan, to enforce his rights under the
MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17887
terms of the plan, or to clarify his rights to future benefits
under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). The
district court assigned the burden of proof to Muniz as the
claimant. Muniz contends that the burden should properly be
borne by the plan administrator, but we agree with the district
court. As concluded by other circuit courts which have
addressed the question, when the court reviews a plan admin-
istrator’s decision under the de novo standard of review, the
burden of proof is placed on the claimant. See, e.g., Horton
v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th
Cir. 1998) (“A plaintiff suing under [29 U.S.C. § 1132(a)
(1)(B)] bears the burden of proving his entitlement to contrac-
tual benefits.”); Farley v. Benefit Trust Life Ins. Co., 979 F.2d
653, 658 (8th Cir. 1992) (“[W]e agree that it was [the claim-
ant’s] burden to show that he was entitled to the ‘benefits . . .
under the terms of his plan.’ ”) (omission in original) (quoting
29 U.S.C. § 1332(a)(1)(B)).1
[2] Muniz argues that after he met the initial burden of
proof of disability by submitting evidence of Dr. Towner’s
assessment of his disability, the burden of proof should have
shifted to CGLIC to demonstrate that its decision to terminate
his benefits was justified. Muniz does not cite any precedent
where a court conducting a de novo review of the record
shifted the burden of proof to the claim administrator, but
rather points to cases where courts reviewed claim administra-
tor decisions under the abuse-of-discretion standard.
1
District courts within this circuit have consistently held that the burden
of proof remains with the claimant when the court reviews a plan adminis-
trator’s decision under the de novo standard of review. See, e.g., Schwartz
v. Metro. Life Ins. Co., 463 F. Supp. 2d 971, 982 (D. Ariz. 2006)
(“Plaintiff has the burden of proof to show that he was eligible for contin-
ued long term disability benefits based on the terms and conditions of the
ERISA plan.”); Sabatino v. Liberty Life Assurance Co. of Boston, 286 F.
Supp. 2d 1222, 1232 (N.D. Cal. 2003) (“The Court concludes that Plaintiff
must carry the burden to prove that she was disabled under the meaning
of the plan.”); Jordan v. Northrop Grumman Corp. Welfare Benefit Plan,
63 F. Supp. 2d 1145, 1155 (C.D. Cal. 1999) (“[T]he burden in making
such a claim [for entitlement to benefits] is on Plaintiff.”).
17888 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT
[3] The abuse-of-discretion standard is used to review a
benefits decision when, as is often the situation but is not in
this case, “the benefit plan gives the administrator or fiduciary
discretionary authority to determine eligibility for benefits or
to construe the terms of the plan.” Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 115 (1989). There is an additional
issue to consider in such a case, however. If the plan adminis-
trator or decisionmaker is also the party from whose pocket
the claim would have to be paid, such as an insurer or an
employer sponsoring a self-funded plan, the court must deter-
mine whether the denial of benefits was improperly affected
by this conflict of interest. The burden of proving that its deci-
sion was not improperly influenced has, logically, been placed
on that administrator. See, e.g., Tremain v. Bell Indus., Inc.,
196 F.3d 970, 976 (9th Cir. 1999) (when a claimant produces
evidence that a plan administrator’s self-interest caused a
breach of the administrator’s fiduciary obligations to the
claimant, a rebuttable presumption arises in favor of the
claimant and the plan bears the burden of proving that a con-
flict of interest did not affect its decision to deny or terminate
benefits).2
[4] We clearly limited this burden-shifting approach to
abuse-of-discretion cases where the administrator’s potential
conflict of interest was in question, however. See, e.g., Lang
2
The Supreme Court recently addressed the abuse-of-discretion standard
as used to review to an ERISA benefits decision made by a claim adminis-
trator who also funds the benefits plan. See Metro. Life Ins. Co. v. Glenn,
554 U.S. 105, 128 S. Ct. 2343 (2008). It stated that a court must consider
this conflict of interest as one of numerous “case-specific” factors it evalu-
ates in determining whether the plan administrator abused its discretion in
denying benefits, with the weight given to the conflict of interest varying
on the individual circumstances of each case. Id. at 2351-52; see also
Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 631 (9th Cir.
2009) (“Our court has implemented this approach [from Metro. Life Ins.
Co.] by including the existence of a conflict as a factor to be weighed,
adjusting the weight given that factor based on the degree to which the
conflict appears improperly to have influenced a plan administrator’s deci-
sion.”).
MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17889
v. Long-Term Disability Plan of Sponsor Applied Remote
Tech., Inc., 125 F.3d 794, 798 (1997) (under the abuse of dis-
cretion standard, “[i]f the plan fails to carry its burden, how-
ever, our review becomes de novo” and the plan’s
interpretation is no longer relevant because the court in con-
ducting a de novo review of the record does not give “defer-
ence to the administrator’s tainted exercise of discretion”)
(internal quotation marks omitted). When conducting a de
novo review of the record, the court does not give deference
to the claim administrator’s decision, but rather determines in
the first instance if the claimant has adequately established
that he or she is disabled under the terms of the plan.
Muniz also contends that the burden of proving a disability
should be shifted to the claim administrator when the claim
administrator terminates disability benefits without providing
any evidence that the claimant’s condition has improved or
changed since its initial award of benefits. There is no case
law supporting this proposition.3 Rather, district courts within
3
Muniz cites five cases for the proposition that the defendant must jus-
tify termination of benefits with new evidence demonstrating a change in
the claimant’s condition. None of these cases support application of this
burden-shifting standard, however. In both McOsker v. Paul Revere Life
Insurance Co., 279 F.3d 586 (8th Cir. 2002), and Gunderson v. W.R.
Grace & Co. Long Term Disability Income Plan, 874 F.2d 496 (8th Cir.
1989), the Eighth Circuit acknowledged that a previous payment of bene-
fits is relevant when evaluating whether a claim administrator properly ter-
minated benefits, but the court did not shift the burden of proof to the
defendant in either case. In Connors v. Connecticut General Life Insur-
ance Co., 272 F.3d 127 (2d Cir. 2001), the Second Circuit also did not
shift the burden of proof to the defendant; it simply noted that the district
court’s finding that the plaintiff’s claim was over an initial denial of bene-
fits rather than a termination of past benefits was a factual error that may
have influenced the weight given to the evidence presented by the defen-
dant.
Muniz also cites Saffon v. Wells Fargo & Co. Long Term Disability
Plan, 522 F.3d 863 (9th Cir. 2008), for the proposition that the burden
shifts to the defendant to prove a change in a claimant’s medical condition
when terminating benefits. The court in Saffon did not shift the burden to
17890 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT
this circuit have consistently held that the burden of proof
continues to lie with the plaintiff when disability benefits are
terminated after an initial grant. See, e.g., Clifford v. Pruden-
tial Ins. Co. of Am., No. 07-CV-126-ST, 2008 WL 4164750,
at *5, *9 (D. Or. Aug. 27, 2008) (the plaintiff had the burden
of proving she was disabled under the plan’s terms when the
plan terminated her benefits after a reevaluation of her claim);
Gardner v. Bear Creek Corp., No. C 06-02822 MHP, 2007
WL 2318969, at *13, *18 (N.D. Cal. Aug. 6, 2007) (same).
We agree. That benefits had previously been awarded and
paid may be evidence relevant to the issue of whether the
claimant was disabled and entitled to benefits at a later date,
but that fact should not itself shift the burden of proof.
B. The District Court’s Decision
The district court’s finding that Muniz did not meet the
CGLIC plan’s definition of “totally disabled” as of September
9, 2006 was not clearly erroneous. In conducting a de novo
review of the record, the district court found that the evidence
presented, including the opinions of two health care profes-
sionals who personally examined Muniz, did not confirm
Muniz’s claims that his symptoms rose to the level of total
disability and left him “unable to perform all the essential
duties of any occupation for which [he is] or may reasonably
become qualified.”
[5] Muniz argues that the district court committed clear
error in its analysis because his medical records did not show
the defendant, but rather held under the abuse-of-discretion standard that
the defendant must conduct a “meaningful dialogue” with the beneficiary
regarding his or her claim before a final denial of the claim. Id. at 870-71.
Similarly, in Beckstrand v. Electronic Arts Group Long Term Disability
Insurance Plan, No. 1:05-CV-0323, 2008 WL 4279566 (E.D. Cal. Sept.
16, 2008), another abuse of discretion case cited by Muniz, the court calls
for a “meaningful dialogue” between claimant and claim administrator,
but does not mention burden-shifting.
MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17891
a change in his condition over the years he was covered by the
CGLIC plan. As noted above, the fact that the claimant was
initially found disabled under the terms of the plan may be
considered evidence of the claimant’s disability, but as the
Eighth Circuit stated in McOsker v. Paul Revere Life Insur-
ance Co., “[w]e are not suggesting that paying benefits oper-
ates forever as an estoppel so that an insurer can never change
its mind.” 279 F.3d 586, 589 (8th Cir. 2002). Muniz did not
provide sufficient evidence to demonstrate that the district
court committed clear error in its analysis of the record.
[6] Muniz contends that Dr. Towner’s recommendations
and observations demonstrated that Muniz met the definition
of “totally disabled” under the CGLIC plan. He argues that
the district court improperly rejected Dr. Towner’s medical
opinion, for as his treating physician, Dr. Towner’s opinion
should have been accorded greater deference by the court. But
courts are not required to “accord special weight to the opin-
ions of a claimant’s physician.” Black & Decker Disability
Plan v. Nord, 538 U.S. 822, 834 (2003). Moreover, Muniz
does not provide significant factual support to rebut the dis-
trict court’s finding that Dr. Towner’s records were inconsis-
tent, incomplete, and did not ultimately support Muniz’s
claim that he met the definition of total disability under the
CGLIC plan.
[7] Muniz also argues that the district court erred by order-
ing him to participate in an FCE in March 2009 and in subse-
quently considering the results of the March 2009
examination as relevant to his condition when his benefits
were terminated in September 2006. This argument fails
because “[a] district court, when exercising de novo review of
an ERISA benefits denial decision, may admit additional evi-
dence when ‘circumstances clearly establish that additional
evidence is necessary to conduct an adequate de novo review
of the benefit decision.” Friedrich, 181 F.3d at 1111 (quoting
Mongeluzo v. Baxter Travenol Long Term Disability Benefit
Plan, 46 F.3d 938, 944 (9th Cir. 1995)). Such evidence may
17892 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT
include the opinion of an independent expert. See Walker, 180
F.3d at 1071 (“Armed with the authority to consider addi-
tional evidence in its de novo review, the district court also
has the discretion to appoint an expert sua sponte under Fed-
eral Rule of Evidence 706(a).”). Here, the district court con-
ducted a review of the record and determined it could not rely
solely on Dr. Towner’s records due to their inconsistent and
incomplete nature. The court did not abuse its discretion in
holding that an expert opinion would be helpful to determine
the extent of Muniz’s disability.
Muniz argues that the requirement in section 1133(1) of
ERISA that a claimant who is denied benefits be “provide[d]
adequate notice in writing . . . setting forth the specific rea-
sons for such denial” from his benefit plan indicates that the
evidence the district court may consider is limited to the writ-
ten reasons the plan gave the claimant for denying benefits.
29 U.S.C. § 1133(1). The case law cited by Muniz does not
support this proposition. The only case he refers to involving
de novo review actually provides support for the contrary
proposition that additional evidence should be admitted under
the circumstances faced by the court here. Opeta v. Nw. Air-
lines Pension Plan for Contract Employees, 484 F.3d 1211,
1217 (9th Cir. 2007) (introduction of evidence beyond the
administrative record may be necessary for “claims that
require consideration of complex medical questions or issues
regarding the credibility of medical experts”) (quoting Que-
sinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1027 (4th
Cir. 1993) (en banc)).
[8] Muniz also argues that he was denied a “full and fair
review” of his claim because he was not given the opportunity
to present evidence that FCEs are flawed and that his March
2009 FCE was flawed in particular. See 29 U.S.C. § 1133(2)
(the benefit plan shall “afford a reasonable opportunity to any
participant whose claim for benefits has been denied for a full
and fair review by the appropriate named fiduciary of the
decision denying the claim”). The district court noted in its
MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17893
denial of Muniz’s motion for a new trial that it had “asked
both parties’ counsel about the appropriateness of a court-
ordered FCE at trial, and plaintiff’s counsel indicated such an
order would be appropriate.” While Muniz did state, in the
parties’ joint request for clarification of the court’s order
appointing an independent expert, that he would like to “sub-
mit evidence regarding the efficacy of such testing with
regard to disability claims,” he did not make any further
attempts to challenge the FCE once the district court clarified
that its order called for an FCE. Indeed, the parties agreed
upon an FCE facility and expert to perform the exam. After
the district court issued its judgment, Muniz filed a motion for
a new trial or to amend the judgment, arguing that the FCE
should not have been ordered, and the district court denied the
motion, finding that Muniz had adequate opportunity to object
to the FCE and did not do so. We agree with the district court
that Muniz had a sufficient opportunity to challenge the FCE.
[9] Finally, Muniz argues that the results of the March
2009 FCE are irrelevant as to the issue of whether or not he
was disabled on September 9, 2006. The district court itself
noted that the “2009 evaluation does not, in and of itself,
establish what Muniz’s ability was in 2006.” Nonetheless,
while not conclusive, the 2009 FCE potentially provided
insight as to Muniz’s previous condition, for Muniz had many
of the same symptoms and same activity levels as he did in
2006, and Muniz does not contend that his underlying condi-
tion changed substantially. The district court was cognizant
that the FCE was “a snap shot performance of [Muniz’s]
capacity,” and accordingly did not rely solely on the FCE’s
results, but rather considered them in combination with the
other evidence. Muniz did not establish that the district court
erred in reaching the conclusion that he was not “totally dis-
abled” under the CGLIC plan.4
4
Muniz also argues that he was denied a “full and fair review” of
CGLIC’s decision to deny benefits, as mandated by ERISA. 29 U.S.C.
17894 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT
III. Conclusion
Muniz did not meet his burden of proving he was “totally
disabled” under the terms of the CGLIC plan as of September
9, 2006. The district court did not err in upholding CGLIC’s
termination of Muniz’s disability benefits based on a lack of
medical documentation supporting the determination of total
disability.
AFFIRMED.
§ 1133(2). The district court conducted a de novo review of the record and
thus did not accord any deference to CGLIC’s decision. The adequacy of
CGLIC’s review is therefore not before this court. See Lang v. Long-Term
Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 798
(9th Cir. 1997) (de novo review does not address a plan administrator’s
“tainted exercise of discretion”).