Saffon v. Wells Fargo & Co. ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRACIELA SAFFON,  No. 05-56824
Plaintiff-Appellant, D.C. No.
v. CV-04-01237-GPS
WELLS FARGO & COMPANY LONG  ORDER
TERM DISABILITY PLAN, an ERISA AMENDING
plan, OPINION AND
Defendant-Appellee. AMENDED
 OPINION
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Argued and Submitted
August 10, 2007—Pasadena, California
Filed January 9, 2008
Amended April 16, 2008
Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson,
Circuit Judge and Miriam Goldman Cedarbaum,*
Senior District Judge.
Opinion by Chief Judge Kozinski
*The Honorable Miriam Goldman Cedarbaum, Senior District Judge for
the Southern District of New York, sitting by designation.
4057
4060 SAFFON v. WELLS FARGO
COUNSEL
Cassie Springer-Sullivan and Charles J. Fleishman, Beverly
Hills, California, for the plaintiff-appellant.
Yuliya I. LaRoe and Eric R. McDonough, Seyfarth Shaw
LLP, Los Angeles, California, for the defendant-appellee.
ORDER
The opinion filed January 9, 2008, appearing at 511 F.3d
1206 (9th Cir. 2008), is ordered amended as follows:
Page 1215, Column 2,
Line 38 After insert
a footnote stating: 41 F.3d 1310, 1316 (9th Cir. 1994) (error for dis-
trict court to hear additional evidence of disability
not presented to plan administrator); Taft v. Equita-
ble Life Assur. Soc’y, 9 F.3d 1469, 1472 (9th Cir.
SAFFON v. WELLS FARGO 4061
1993) (same). But Abatie held that district courts
may take additional evidence whenever “[proce-
dural] irregularities have prevented full develop-
ment of the administrative record,” Abatie, 458
F.3d at 973, and to the extent that our earlier cases
conflict with Abatie, a later en banc decision, those
cases are no longer good law. Here, MetLife failed
to have a meaningful dialogue with Saffon, and that
procedural irregularity prevented full development
of the administrative record because it prevented
Saffon from obtaining the Functional Capacity
Evaluation that MetLife now claims to need. There-
fore, the district court may take additional evi-
dence. Id.>
Page 1217, Column 1,
Line 6 After insert a
footnote stating: 85 F.3d 455, 461 (9th Cir.
1996) (remanding to plan administrator, rather than
district court, to determine whether claimant was
disabled); Patterson v. Hughes Aircraft Co., 11 F.3d
948, 951 (9th Cir. 1993) (same). But we have held
that, where procedural irregularities have prevented
full development of the administrative record, the
district court may hear additional evidence. See Aba-
tie, 458 F.3d at 973. There would be no point in tak-
ing additional evidence in the district court if the
court were not authorized to decide the issue. See id.
at 974 (remanding to the district court rather than the
plan administrator).>
The petition for rehearing and rehearing en banc is denied.
See Fed. R. App. P. 35; Fed. R. App. P. 40. No further peti-
tions may be filed.
4062 SAFFON v. WELLS FARGO
OPINION
KOZINSKI, Chief Judge:
We consider whether an ERISA plan administrator prop-
erly terminated benefits because of its beneficiary’s failure to
produce evidence of her disability.
Facts
Graciela Saffon has long suffered from degeneration of her
cervical spine, a condition confirmed by repeated MRI scans
and X-rays. After a car crash aggravated her condition in
December 2001, Saffon quit her desk job at Wells Fargo Bank
and applied for disability benefits from defendant, the Wells
Fargo & Co. Long Term Disability Plan. The Metropolitan
Life Insurance Company (MetLife), which served both as the
Plan’s insurer and as its claims administrator, promptly began
to pay her short-term disability benefits. Saffon eventually
applied for long-term disability benefits, which MetLife
granted. After paying long-term benefits for a year, MetLife
informed Saffon that she “no longer m[et] the definition of
disability” and terminated her long-term benefits. Saffon then
unsuccessfully availed herself of MetLife’s administrative
appeals process.
Saffon sued the Plan under 29 U.S.C. § 1132(a), seeking
payment of withheld benefits, attorney’s fees and a declara-
tion that she is disabled. After a bench trial on the administra-
tive record, the district court concluded that the Plan hadn’t
abused its discretion and denied Saffon any relief.
Standard of Review
[1] 1. We review benefits denials de novo “unless the
benefit plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits;” if the plan does
grant such discretionary authority, we review the administra-
SAFFON v. WELLS FARGO 4063
tor’s decision for abuse of discretion. Firestone Tire & Rub-
ber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Here, the Plan’s Summary Plan Description states:
In carrying out their respective responsibilities under
the Plan, the Plan administrator and other Plan fidu-
ciaries shall have discretionary authority to interpret
the terms of the Plan and to determine eligibility for
and entitlement to Plan benefits in accordance with
the terms of the Plan.
Saffon argues that we must review MetLife’s decision de
novo because it is unclear whether the Summary Plan
Description’s discretionary clause refers to MetLife. Kearney
v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999) (en
banc) (we defer only if the grant of discretionary authority is
“unambiguous[ ]”). Saffon sees an ambiguity in the fact that
the Summary Plan Description doesn’t refer to MetLife by
name; instead, it grants discretionary authority to “the Plan
administrator [Wells Fargo] and other Plan fiduciaries.” But
it’s perfectly clear that MetLife is included in this grant of
discretionary authority because it is one of the “other Plan
fiduciaries” mentioned there.
[2] A “fiduciary” is an entity with “any discretionary
authority” in the “administration of” an ERISA plan. 29
U.S.C. § 1002(21)(A). See Aetna Health Inc. v. Davila, 542
U.S. 200, 220 (2004) (“When administering employee benefit
plans, HMOs must make discretionary decisions regarding
eligibility for plan benefits, and, in this regard, must be
treated as plan fiduciaries.”). MetLife’s Certificate of Insur-
ance provides that “MetLife in its discretion has authority to
interpret the terms, conditions, and provisions of the entire
contract.” The Summary Plan Description explains that the
Plan “is . . . administered by [MetLife].” “To qualify for LTD
benefits,” beneficiaries must “[r]eceive approval for LTD
benefits by MetLife.” Those “benefits will begin” one month
4064 SAFFON v. WELLS FARGO
after “MetLife determines you are disabled,” and will end on
“[t]he date MetLife determines that you are no longer dis-
abled.”
[3] These provisions leave no doubt that MetLife is an
entity with discretionary authority to administer the Plan.
MetLife is therefore one of the “other Plan fiduciaries” to
which the Summary Plan Description grants “discretionary
authority to . . . determine eligibility for . . . Plan benefits.”
While the path to this conclusion is somewhat tortuous, it is
also perfectly clear. See Wilson Arlington Co. v. Prudential
Ins. Co. of Am., 912 F.2d 366, 371 (9th Cir. 1990) (complex-
ity is not the same thing as ambiguity). The Plan unambigu-
ously confers discretionary authority on MetLife to administer
benefits claims.
[4] 2. Saffon also argues that we must disregard the dis-
cretionary authority granted to MetLife because the California
Insurance Commissioner has revoked the Certificate of Insur-
ance in Saffon’s policy, and “any related Summary Plan
Descriptions.”1 At least 6 other states have done the same; the
National Association of Insurance Commissioners encourages
the remaining 43 to follow suit. See Henry Quillen, State Pro-
hibition of Discretionary Clauses in ERISA-Covered Benefit
Plans, J. Pension Planning & Compliance, Summer 2006, at
67.
This nationwide vote of no confidence seems to have been
precipitated by the cupidity of one particular insurer, Unum-
Provident Corp., which boosted its profits by repeatedly deny-
ing benefits claims it knew to be valid. UnumProvident’s
1
Order from John Garamendi, Cal. Ins. Comm’r, to All Disability Insur-
ers Doing Business in California 2 (Feb. 27, 2004). MetLife chose not to
request a hearing on this decision; the Commissioner’s withdrawal there-
fore became effective 91 days after his Order was published. Cal. Ins.
Code § 10291.5(f). As a result, MetLife may no longer “issue[ ] or deliv-
er[ ]” an insurance policy like Saffon’s in California. Id. § 10290.
 SAFFON v. WELLS FARGO 4065
internal memos revealed that the company’s senior officers
relied on ERISA’s deferential standard of review to avoid
detection and liability. See John H. Langbein, Trust Law As
Regulatory Law: The UNUM/Provident Scandal and Judicial
Review of Benefit Denials Under ERISA, 101 Nw. U. L. Rev.
1315, 1317-21 (2007) (describing UnumProvident’s behav-
ior). It is an open question whether the states’ efforts are pre-
empted by ERISA, 29 U.S.C. § 1144(a), or (as is more likely)
they are saved from preemption because they “regulate[ ]
insurance,” id. § 1144(b)(2)(A). See Quillen, supra, at 77-79
(arguing against preemption). The parties haven’t briefed the
preemption question in depth, and we do not consider it.
[5] Even if federal law permitted states to nullify an ERISA
plan’s grant of discretionary authority, California law doesn’t
authorize the Commissioner to do so retroactively. Cal. Ins.
Code § 10291.5(f). Assuming that the Commissioner may
prohibit insurance companies from using this discretionary
clause in future insurance contracts, he cannot rewrite existing
contracts so as to change the rights and duties thereunder. Cf.
Peterson v. Am. Life & Health Ins. Co., 48 F.3d 404, 410 (9th
Cir. 1995) (“[A]n otherwise valid [insurance] policy is a bind-
ing contract and governs the obligations of the parties until
the Commissioner revokes his approval.”).
[6] 3. That the Plan grants MetLife discretionary authority
is only the first step in determining the standard by which we
review its denial of benefits. While we nominally review for
abuse of discretion, the degree of deference we accord to a
claims administrator’s decision can vary significantly. In
Bruch, the Supreme Court instructed us to “weigh[ ]” a fidu-
ciary’s “conflict of interest” as “a ‘facto[r] in determining
whether there is an abuse of discretion.’ ” 489 U.S. at 115
(quoting Restatement (Second) of Trusts § 187 cmt. d
(1959)). MetLife labors under such a conflict of interest: It
both decides who gets benefits and pays for them, so it has a
direct financial incentive to deny claims. See Langbein, supra,
at 1321 (“The danger pervades the ERISA-plan world that a
4066 SAFFON v. WELLS FARGO
self-interested plan decisionmaker will take advantage of its
license under Bruch to line its own pockets by denying meri-
torious claims.”).
[7] The district court didn’t take MetLife’s conflict of inter-
est into account, apparently because Saffon didn’t produce
“material, probative evidence” of the conflict. Atwood v.
Newmont Gold Co., 45 F.3d 1317, 1323 (9th Cir. 1995).
Atwood was the law in our circuit at the time the district court
reached its decision but it has since been overruled. Abatie v.
Alta Health & Life Ins. Co., 458 F.3d 955, 966-67 (9th Cir.
2006) (en banc). In Abatie, we explained that a reviewing
court must always consider the “inherent conflict that exists
when a plan administrator both administers the plan and funds
it.” Id. at 967. We “weigh” such a conflict more or less “heav-
ily” depending on what other evidence is available. Id. at 968.
We “view[ ]” the conflict with a “low” “level of skepticism”
if there’s no evidence “of malice, of self-dealing, or of a par-
simonious claims-granting history.” Id. But we may “weigh”
the conflict “more heavily” if there’s evidence that the admin-
istrator has given “inconsistent reasons for denial,” has failed
“adequately to investigate a claim or ask the plaintiff for nec-
essary evidence,” or has “repeatedly denied benefits to
deserving participants by interpreting plan terms incorrectly.”
Id.
In explaining what it means to “weigh” a conflict of inter-
est, Abatie “conscious[ly]” rejected the “sliding scale”
approach adopted by other circuits:
[W]eighing a conflict of interest as a factor in abuse
of discretion review requires a case-by-case balance
. . . . A district court, when faced with all the facts
and circumstances, must decide in each case how
much or how little to credit the plan administrator’s
reason for denying insurance coverage. An egregious
conflict may weigh more heavily (that is, may cause
SAFFON v. WELLS FARGO 4067
the court to find an abuse of discretion more readily)
than a minor, technical conflict might.
Id. at 967, 968. Abatie went on to offer additional guidance:
[C]ourts are familiar with the process of weighing a
conflict of interest. For example, in a bench trial the
court must decide how much weight to give to a wit-
ness’ testimony in the face of some evidence of bias.
What the district court is doing in an ERISA benefits
denial case is making something akin to a credibility
determination about the insurance company’s or plan
administrator’s reason for denying coverage under a
particular plan and a particular set of medical and
other records. We believe that district courts are well
equipped to consider the particulars of a conflict of
interest, along with all the other facts and circum-
stances, to determine whether an abuse of discretion
has occurred.
Id. at 969.
As we read Abatie, when reviewing a discretionary denial
of benefits by a plan administrator who is subject to a conflict
of interest, we must determine the extent to which the conflict
influenced the administrator’s decision and discount to that
extent the deference we accord the administrator’s decision.
In so doing, we seek to overcome the “serious . . . danger of
conflicted plan decisionmaking” illustrated by the Unum-
Provident scandal. Langbein, supra, at 1335.
[8] Because the district court did not have the benefit of
Abatie’s teachings, it applied the wrong legal standard in
reviewing MetLife’s determination that Saffon is not disabled.
We therefore accord the district court’s ruling no deference
and examine the record afresh through Abatie’s lens.
4068 SAFFON v. WELLS FARGO
Merits
1. After MetLife granted Saffon long-term disability ben-
efits, it commissioned Dr. John D. Thomas to review her
medical records. Dr. Thomas found that Saffon hadn’t pro-
vided evidence to corroborate her claim that the pain pre-
vented her from working: “[Saffon’s] file,” he wrote, “lacks
detailed, objective, functional findings or testing which would
completely preclude [an effort by Saffon to return to work].”
MetLife forwarded Dr. Thomas’s report to Dr. Kudrow, Saf-
fon’s neurologist. Dr. Kudrow responded to Dr. Thomas’s
report in a detailed letter that discussed Saffon’s reported
symptoms, his unsuccessful attempts to alleviate them and the
evidence of Saffon’s condition: “Objective evidence of cervi-
cal pathology is noted in previous cervical spine MRI which
shows multilevel degenerative disease.” Saffon herself also
wrote explaining that her condition “has not changed, it has
been the same for over a year now, my headaches and neck
pain are moderately severe 24 hours a day.”
MetLife added Saffon’s and Dr. Kudrow’s letters to Saf-
fon’s file and sent it back to Dr. Thomas for a second review,
whereupon Dr. Thomas again concluded that Saffon’s file
“lacks clear, sequential, detailed, objective clinical informa-
tion which would completely preclude Ms. Saffon from an
attempt at return to work.” MetLife faxed this pronouncement
to Dr. Kudrow and gave him a deadline: “If you disagree with
the findings of [Dr. Thomas’s second] review, please respond
by fax [within ten days] with supporting documentation. If we
do not hear from you, we will presume you are in agreement
with the findings of the review.” MetLife did not send Saffon
a copy of this query. Dr. Kudrow did not reply before the
expiration of MetLife’s ten-day deadline, nor, of course, did
Saffon.
MetLife then terminated Saffon’s benefits, explaining its
decision as follows:
SAFFON v. WELLS FARGO 4069
The medical information provided no longer pro-
vides evidence of disability that would prevent you
from performing your job or occupation. You no
longer meet the definition of disability therefore
your claim has been withdrawn . . . .
The letter advised Saffon that she could appeal the decision
by providing
medical evidence from the doctor(s) treating you for
a condition that indicates you are under the appropri-
ate care and treatment and objective medical infor-
mation to support your inability to perform the duties
of your occupation.
Saffon appealed and, in an apparent effort to provide “ob-
jective medical information,” she included her most recent
MRI, which showed that her cervical spine was “not signifi-
cantly changed” since the MRI taken right after the car crash.
She also included another letter from Dr. Kudrow, her treating
neurologist, who confirmed that Saffon had tried a variety of
pain treatments “without sustainable benefit” and that she was
still “unable to tolerate sustained sitting.”
MetLife referred Saffon’s appeal to Dr. Robert A. Menotti,
who, like Dr. Thomas, neither examined nor interviewed her.
After reading MetLife’s file, Dr. Menotti concluded that
“[t]here simply is not enough objective medical findings and
office notes that have continued to flow into this file, that con-
vince this reviewer that the claimant’s self-reported headache
and chronic pain syndrome has been enough to preclude her
from” working.
MetLife thereupon denied Saffon’s appeal:
Medical information furnished reflects diagnoses
including chronic headaches, chronic pain syndrome,
cervical spondylosis, cervical strain and sprain. The
4070 SAFFON v. WELLS FARGO
determination of disability is not based on the pres-
ence of diagnoses, but is based on functional ability
supported by clinical evidence that would substanti-
ate symptoms consistent with those reported by the
patient and medical providers. In this determination
of disability, we must take into consideration current
restrictions and limitations that are supported by
clinical evidence that substantiates an inability to
perform the duties of your job for your own or any
employer in accordance with the Wells Fargo Dis-
ability Plan.
. . . It is not clear what Dr. Kudrow used as a basis
for [his diagnosis of your] reported limitations as
we’ve not been furnished with a Functional Capacity
Evaluation that would objectively measure and docu-
ment your current level of functional ability.
. . . The MRI of April 28, 2003 documents degen-
erative changes [in your cervical spine], but indicates
this is unchanged from the prior January 12, 2002
MRI. No progression in degeneration is documented.
Prescribed medications of bextra and celexa do not
appear to represent an excessive amount of medica-
tion that would result in decreased concentration
levels. The frequency of pain clinic visits were noted
to not be excessive to the degree that would render
you unable to perform sedentary functions consistent
with your own occupation.
[9] 2. Ten years ago, in Booton v. Lockheed Medical Bene-
fit Plan, 110 F.3d 1461, 1463 (9th Cir. 1997), we interpreted
the ERISA regulations as calling for a “meaningful dialogue”
between claims administrator and beneficiary. In resolving
Saffon’s claim for benefits, MetLife was required to give her
“[a] description of any additional material or information”
that was “necessary” for her to “perfect the claim,” and to do
SAFFON v. WELLS FARGO 4071
so “in a manner calculated to be understood by the claimant.”
29 C.F.R. § 2560.503-1(g).
[10] MetLife cannot be faulted for taking our instructions
in Booton too seriously. Its communications with Saffon and
her doctors are hardly a model of clarity; they certainly do not
explain “in a manner calculated to be understood by the
claimant” what Saffon must do to perfect her claim. For
example, Dr. Thomas’s statement that Saffon’s file “lacks
clear, sequential, detailed, objective clinical information
which would completely preclude Ms. Saffon from an attempt
at return to work” is little more than a long series of uncon-
nected adjectives. How an absence of information could pre-
clude Saffon from returning to work, what function the word
“sequential” plays in this litany, or why Dr. Kudrow’s report
and attached MRI did not amount to “objective clinical infor-
mation” or was not “clear” is left to the imagination.
[11] MetLife’s termination letter to Saffon is equally unin-
formative. It notes merely that “[t]he medical information
provided no longer provides evidence of disability that would
prevent you from performing your job or occupation,” but
does not explain why that is the case, and certainly does not
engage Dr. Kudrow’s contrary assertion. The termination let-
ter does suggest Saffon can appeal by providing “objective
medical information to support [her] inability to perform the
duties of [her] occupation,” but does not explain why the
information Saffon has already provided is insufficient for
that purpose.
Both Saffon and Dr. Kudrow then provided additional
information about Saffon’s course of treatment, including evi-
dence that Saffon’s pain was not relieved by a variety of pain
treatments. This proved unsatisfactory to Dr. Menotti (who
reviewed Saffon’s administrative appeal); he remained uncon-
vinced “that the claimant’s self-reported headache and
chronic pain syndrome has been enough to preclude her from”
working. Dr. Menotti does not explain why he is uncon-
4072 SAFFON v. WELLS FARGO
vinced, nor what Saffon or Dr. Kudrow would need to do to
convince him. MetLife nevertheless relied on Dr. Menotti’s
evaluation to deny Saffon’s appeal in the three paragraphs
quoted above at page 280-81. The first of these paragraphs is
no more intelligible than MetLife’s original denial letter, per-
haps less so. It’s even unclear whether this paragraph purports
to give reasons for the denial or merely explains the standard
of review that MetLife is applying. In any event, we can make
out nothing in it of use to the claimant.
The second paragraph does communicate some useful
information. In responding to Dr. Kudrow’s various reports,
MetLife notes that “[i]t is not clear what Dr. Kudrow used as
a basis for [his diagnosis] . . . as we’ve not been furnished
with a Functional Capacity Evaluation that would objectively
measure and document your current level of functional abili-
ty.” This appears to be not only MetLife’s first (and only)
response to Dr. Kudrow’s evaluation, but also the first refer-
ence in the record to the absence of a Functional Capacity
Evaluation—at least, the parties have pointed us to no other
reference, and we’ve not located one on our own. Since this
was MetLife’s final denial of Saffon’s claim, this information
came too late to do Saffon any good.
The third paragraph contains the following self-
contradictory passage:
The MRI of April 28, 2003 documents degenerative
changes [in your cervical spine], but indicates this is
unchanged from the prior January 12, 2002 MRI. No
progression in degeneration is documented.
We do not understand how the April 28, 2003, MRI can docu-
ment “degenerative changes” but remain “unchanged” from
the January 12, 2002, MRI. In any event, assuming that the
MRIs document no “progression in degeneration,” MetLife
does not explain why further degeneration is necessary to sus-
tain a finding that Saffon is disabled. After all, MetLife had
SAFFON v. WELLS FARGO 4073
been paying Saffon long-term disability benefits for a year,
which suggests that she was already disabled. In order to find
her no longer disabled, one would expect the MRIs to show
an improvement, not a lack of degeneration.
[12] Insofar as MetLife believed that a Functional Capacity
Evaluation, or some other means of objectively testing Saf-
fon’s ability to perform her job, was necessary for it to evalu-
ate Saffon’s claim, it was required to say so at a time when
Saffon had a fair chance to present evidence on this point. We
addressed this issue directly in Abatie:
An administrator must provide a plan participant
with adequate notice of the reasons for denial, 29
U.S.C. § 1133(1), and must provide a “full and fair
review” of the participant’s claim, id. § 1133(2); see
also 29 C.F.R. § 2560.503-1(g)(1), (h)(2). When an
administrator tacks on a new reason for denying ben-
efits in a final decision, thereby precluding the plan
participant from responding to that rationale for
denial at the administrative level, the administrator
violates ERISA’s procedures. Section 1133 requires
an administrator to provide review of the specific
ground for an adverse benefits decision. By requiring
that an administrator notify a claimant of the reasons
for the administrator’s decisions, the statute suggests
that the specific reasons provided must be reviewed
at the administrative level. Moreover, a review of the
reasons provided by the administrator allows for a
full and fair review of the denial decision, also
required under ERISA. Accordingly, an administra-
tor that adds, in its final decision, a new reason for
denial, a maneuver that has the effect of insulating
the rationale from review, contravenes the purpose
of ERISA. This procedural violation must be
weighed by the district court in deciding whether
[the administrator] abused its discretion.
4074 SAFFON v. WELLS FARGO
458 F.3d at 974 (internal quotation marks, alterations and
citations omitted).
[13] In Abatie, the beneficiary presented evidence in the
district court bearing on the new issue, but the court refused
to consider it. Id. We held that this was error, which must
mean that a claimant in such circumstances is entitled to pres-
ent evidence and to have the district court consider it. In addi-
tion, the fact that the claims administrator presented a new
reason at the last minute bears on whether denial of the claim
was the result of an impartial evaluation or was colored by
MetLife’s conflict of interest. After all, coming up with a new
reason for rejecting the claim at the last minute suggests that
the claim administrator may be casting about for an excuse to
reject the claim rather than conducting an objective evalua-
tion. See Langbein, supra, at 1321 (noting that UnumProvi-
dent claim administrators played on the deferential standard
of review to deliberately deny meritorious claims). This is a
matter to be resolved by the district court in the first instance,
and we therefore vacate the district court’s ruling and remand
for this purpose.
In order to avoid unnecessary disputes on remand, we offer
additional guidance for the parties and the district court: First,
the district court must give Saffon an opportunity to present
evidence on the one issue that was newly raised by MetLife
in its denial letter—the results of a Functional Capacity Eval-
uation or other objective evidence of whether she is totally
disabled under the terms of the Plan.2 Saffon need not present
2
In its petition for rehearing, Wells Fargo claims that our precedents for-
bid the district court from hearing additional evidence. E.g., McKenzie v.
General Telephone Co. of Cal., 41 F.3d 1310, 1316 (9th Cir. 1994) (error
for district court to hear additional evidence of disability not presented to
plan administrator); Taft v. Equitable Life Assur. Soc’y, 9 F.3d 1469, 1472
(9th Cir. 1993) (same). But Abatie held that district courts may take addi-
tional evidence whenever “[procedural] irregularities have prevented full
development of the administrative record,” Abatie, 458 F.3d at 973, and
SAFFON v. WELLS FARGO 4075
the results of such an evaluation, though she should be
allowed to do so if she wishes. However, Saffon may, instead,
offer evidence (from Dr. Kudrow or some other qualified
expert) that such evidence is not available or not particularly
useful in diagnosing her ability to return to her job. In this
regard we note our case law in Social Security disability
cases, e.g., Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir.
1986) (per curiam), where we have noted that individual reac-
tions to pain are subjective and not easily determined by refer-
ence to objective measurements. See also Bunnell v. Sullivan,
947 F.2d 341, 348 (9th Cir. 1991) (en banc) (affirming Cot-
ton); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)
(“[P]ain is a completely subjective phenomenon” and “cannot
be objectively verified or measured.”).3 If MetLife is turning
down Saffon’s application for benefits based on Saffon’s fail-
ure to produce evidence that simply is not available, that too
may bear on the degree of deference the district court shall
accord MetLife’s decision and on its ultimate determination
as to whether Saffon is disabled.
Second, in determining the degree of deference to which
MetLife is entitled, the district court must consider MetLife’s
course of dealing with Saffon and her doctors. We have
already pointed out some of the ways in which MetLife did
to the extent that our earlier cases conflict with Abatie, a later en banc
decision, those cases are no longer good law. Here, MetLife failed to have
a meaningful dialogue with Saffon, and that procedural irregularity pre-
vented full development of the administrative record because it prevented
Saffon from obtaining the Functional Capacity Evaluation that MetLife
now claims to need. Therefore, the district court may take additional evi-
dence. Id.
3
While the rules and presumptions of our Social Security case law do
not apply to ERISA benefits determinations, see Black & Decker Disabil-
ity Plan v. Nord, 538 U.S. 822 (2003), our Social Security precedents are
relevant for the factual observation that disabling pain cannot always be
measured objectively—which is as true for ERISA beneficiaries as it is for
Social Security claimants.
4076 SAFFON v. WELLS FARGO
not meet its duty—outlined 10 years ago in Booton—to have
a meaningful dialogue with its beneficiary in deciding
whether to grant or deny benefits. MetLife seems to have dis-
regarded this responsibility in various ways—the opacity of
its communications with Saffon, the fact that it communicated
directly with her doctors without advising her of the communi-
cation4 and the fact that it took various of her doctors’ state-
ments out of context or otherwise distorted them in an
apparent effort to support a denial of benefits.5 See Langbein,
supra, at 1319 (noting allegations of a physician claims
reviewer for UnumProvident “that he was instructed ‘to use
language to support the denial of disability insurance’; that he
was not allowed ‘to request further information or suggest
additional medical tests’; and that he was ‘not supposed to
help a claimant perfect a claim’ ” (alterations omitted)).
4
For example, the letter to Dr. Kudrow, giving him 10 days to respond
if he disagreed with Dr. Thomas’s second review, appears not to have
been sent to Saffon. Dr. Kudrow missed the 10-day deadline and, because
Saffon was not notified, she was not in a position to urge him to timely
respond or ask MetLife to extend the deadline. MetLife also seems to have
communicated directly with Dr. Soderlund, Saffon’s primary care physi-
cian, who had very little to do with Saffon’s treatment for her back injury.
A doctor is not a lawyer; though he may provide information that is rele-
vant to a claimant’s disability, his actions (or inaction) cannot bind the cli-
ent. If a claims administrator communicates with a doctor who has treated
a beneficiary, it must disclose that fact to the patient at a meaningful time.
5
MetLife, for example, relies on Dr. Kudrow’s suggestion that Saffon
try returning to work, but omits this important qualifier: “if she feels that
she is able.” Letter from Dr. David Kudrow re: Graciela Saffon (Jan. 29,
2003). There is a world of difference between saying that a patient can
return to work and saying she should return to work if she feels she is able
to do so: Omitting the distinction could be a sign of either inattention to
important details or bad faith. In either event, it suggests less deference
should be given to the decision of the claims administrator. See Langbein,
supra, at 1333-34 (citing Brown v. Blue Cross & Blue Shield of Ala., Inc.,
898 F.2d 1556, 1566 (11th Cir. 1990)) (courts should “insist[ ] on de novo
review despite contrary plan terms in cases involving conflicted decision-
making”).
SAFFON v. WELLS FARGO 4077
Finally, after determining the degree of deference (if any)
it should accord MetLife’s decision, the district court must
determine whether Saffon is permanently disabled, taking into
account not only the evidence presented in the record, but
such additional evidence as Saffon may present (as discussed
above) and any contrary evidence MetLife may present.6 If
the parties wind up presenting significant new evidence in the
district court, it may be impossible for the court to grant any
deference to the decision of the claims administrator, as that
decision will perforce have been made without taking into
account the new evidence. As a practical matter, therefore, it
may be unnecessary for the district court to determine the
degree of deference to give MetLife’s decision, as the admis-
sion of significant new evidence will require a de novo recon-
sideration of the decision in any event.
VACATED and REMANDED.
6
Wells Fargo’s petition for rehearing claims that only plan administra-
tors have authority to determine whether Saffon is disabled; the district
court may not do so. See, e.g., Saffle v. Sierra Pac. Power Co. Bargaining
Unit Long Term Disability Income Plan, 85 F.3d 455, 461 (9th Cir. 1996)
(remanding to plan administrator, rather than district court, to determine
whether claimant was disabled); Patterson v. Hughes Aircraft Co., 11 F.3d
948, 951 (9th Cir. 1993) (same). But we have held that, where procedural
irregularities have prevented full development of the administrative
record, the district court may hear additional evidence. See Abatie, 458
F.3d at 973. There would be no point in taking additional evidence in the
district court if the court were not authorized to decide the issue. See id.
at 974 (remanding to the district court rather than the plan administrator).