                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 18 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CARA A. BURKE,                                   No. 09-16608

              Plaintiff - Appellant,             D.C. No. 3:04-CV-04483-MHP

  v.
                                                 MEMORANDUM*
PITNEY BOWES INC.
LONG TERM DISABILITY PLAN,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Marilyn Hall Patel, District Judge, Presiding

                        Argued and Submitted July 15, 2010
                            San Francisco, California

Before: W. FLETCHER and M. SMITH, Circuit Judges, and TODD, Senior
District Judge.**

       In this appeal governed by ERISA, Appellant Cara A. Burke appeals the

district court’s decision in favor of Appellee Pitney Bowes Inc. Long Term


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
Disability Plan following the termination of her long term disability benefits. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. The parties are

familiar with the facts of the case so we repeat them here only to the extent

necessary to explain our decision.

      “We review de novo a district court’s choice and application of the standard

of review” to the plan administrator’s decision. Abatie v. Alta Health & Life Ins.

Co., 458 F.3d 955, 962 (9th Cir. 2006) (en banc). Factual findings are reviewed

for clear error. Id. In this case, the plan granted the administrator discretionary

authority to determine eligibility for benefits and construe the plan’s terms.

Therefore, we review the decision for abuse of discretion. Firestone Tire &

Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Where, as here, the plan

administrator is also the source of funding for the plan, the structural conflict of

interest is a factor to be considered in that review. Metro. Life Ins. Co. v. Glenn,

554 U.S. 105, 128 S. Ct. 2343, 2350-51 (2008); Abatie, 458 F.3d at 968-69. See

also Conkright v. Frommert, — U.S. — , 130 S. Ct. 1640, 1646 (2010) (reiterating

that under Metropolitan Life, if discretionary authority is granted to the plan

administrator, “a deferential standard of review remains appropriate even in the

face of a conflict”).




                                           2
      The plan administrator terminated Burke’s benefits based on the report of an

independent medical examination (“IME”) in which Dr. Richard J. Barry opined

that she could return to light duty work. Burke appealed and submitted additional

medical evidence from a treating physician who strongly disagreed with Dr.

Barry’s conclusions. While the appeal was under consideration, the plan

administrator requested that Burke undergo a second IME by Dr. Barry so that he

could respond to the new medical evidence. Burke refused, contending that the

request was unreasonable.

      The provisions of the plan specifically conditioned the payment of benefits

on the administrator’s right to require the employee to submit periodically to an

IME. The plan also expressly provided that benefits could be terminated for

refusal to attend a scheduled IME. Nevertheless, Burke persisted in her refusal

even after she was warned that her benefits could be terminated on that basis alone.

      Contrary to Burke’s arguments, it was reasonable for the plan administrator

to request a second IME in order to allow Dr. Barry to consider whether his

opinion had changed in light of the contrary evidence from her treating physician.

Assuming, without deciding, that the plan is even required to show it has suffered

prejudice before denying benefits on the basis of a participant’s refusal to comply




                                         3
with a procedural requirement, Burke’s failure to attend the IME prejudiced the

administrator’s ability to determine whether her claim was meritorious.

      Even taking into account as a factor the plan administrator’s structural

conflict of interest, the termination of Burke’s benefits for her failure to attend the

IME was not an abuse of discretion.

      AFFIRMED.




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