                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 22 2014

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

MELCHOR INCIONG,                                 No. 12-15997

              Plaintiff - Appellant,             D.C. No. 4:10-cv-03384-SBA

  v.
                                                 MEMORANDUM*
FORT DEARBORN LIFE INSURANCE
COMPANY and REDKEN
LABORATORIES, INC. LONG TERM
DISABILITY PLAN,

              Defendants - Appellees.


                  Appeal from the United States District Court
                     for the Northern District of California
                 Saundra B. Armstrong, District Judge, Presiding

                        Argued and Submitted April 9, 2014
                            San Francisco, California

Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
      Plaintiff-Appellant Melchor Inciong appeals the termination of his long-term

disability benefits under an employee welfare benefit plan insured through Fort

Dearborn Life Insurance Company (“Fort Dearborn”). Inciong brought suit under

the private right of action provision in the Employee Retirement Income Security

Act (“ERISA”), 29 U.S.C. § 1132(a)(1)(B). Reviewing de novo, the district court

found in favor of Fort Dearborn, noting that Inciong had failed to provide

sufficient objective and quantifiable evidence to support his claim of total

disability. We affirm.

      “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.’” Muniz v. Amec Constr. Mgmt.,

Inc., 623 F.3d 1290, 1294 (9th Cir. 2010) (internal quotation and citations

omitted).

      To qualify for benefits under the policy, Inciong was required to show by a

preponderance of the evidence that he was “unable to perform with reasonable

continuity all of the material and substantial duties of his own or any other

occupation for which he is or becomes reasonably fitted by training, education,

experience, age and physical and mental capacity.” See Muniz, 623 F.3d at 1294

(claimant bears the burden of proof). This “any occupation” standard is “not


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demanding.” Pannebecker v. Liberty Life Assur. Co. of Boston, 542 F.3d 1213,

1219 (9th Cir. 2008) (quoting McKenzie v. Gen. Tel. Co. of Cal., 41 F.3d 1310,

1317 (9th Cir. 1994), overruled on other grounds by Saffon v. Wells Fargo & Co.

Long Term Disability Plan, 522 F.3d 863 (9th Cir. 2008)). Inciong is not disabled

under the policy if he can perform any job for which he is qualified. Id. The jobs

for which he was held to be qualified were positions classified as either

“sedentary” or requiring “light” physical strength. Therefore, Inciong was required

to prove that he was unable to handle that level of physical activity. The district

court found that the medical records did not support his claim, and the court’s

factual findings were not clearly erroneous.

      Inciong argues that the district court erred in its analysis because his medical

records did not show a change in his condition. Fort Dearborn presented evidence

that Inciong’s condition had in fact improved, and the district court found that his

“level of activity has actually improved over time.” Our review of the evidence in

the record does not lead us to conclude that this factual finding was clearly

erroneous. Moreover, it remained Inciong’s responsibility to show by a

preponderance of the evidence that he was “totally disabled” as defined in the

policy when the benefits were terminated. A lack of change in Inciong’s condition,




                                          3
as reported by his treating physician, was relevant to the inquiry but not

conclusive. Muniz, 623 F.3d at 1296.

      Inciong further argues that vocational evidence supported his claim for

disability because a labor consultant opined that Inciong was unlikely to be hired

due to his long absence from the workforce. The policy’s definition of disability

does not require a showing that Inciong would in fact be hired for a specific job; it

only requires a showing that jobs exist that Inciong was qualified for and capable

of doing. McKenzie v. Gen. Tel. Co. of Cal., 41 F.3d 1310, 1317-18 (9th Cir.

1994). The vocational survey identified such positions in the local job market.

      Inciong contends that Fort Dearborn and the district court “unreasonably

preferred” the opinions of its medical consultants over that of Inciong’s treating

physician. However, “[n]othing in [ERISA] suggests that plan administrators must

accord special deference to the opinions of treating physicians. Nor does [ERISA]

impose a heightened burden of explanation on administrators when they reject a

treating physician's opinion.” Black & Decker Disability Plan v. Nord, 538 U.S.

822, 831 (2003).

      Inciong further argues that Fort Dearborn should have conducted an

independent in-person medical examination or a functional capacity evaluation.

He relies on Montour v. Hartford Life & Accident Insurance Co., 588 F.3d 623,


                                          4
634 (9th Cir. 2009), for the proposition that a “pure-paper” review “raise[s]

questions about the thoroughness and accuracy of the benefits determination.”

Montour is not applicable to this case. In Montour, the court addressed “the

question of how a district court should apply the abuse of discretion standard when

reviewing a decision by the administrator of an employee benefits plan . . . when

that administrator has a conflict of interest [as the financial underwriter].” 588

F.3d at 626. Here, the district court reviewed Fort Dearborn’s decision de novo; it

did not review Fort Dearborn’s exercise of discretion and decision-making process.

Had the district court found such an examination or evaluation necessary to a de

novo review, it could have ordered one. See, e.g., Muniz v. Amec Constr. Mgmt.,

Inc., 623 F.3d 1290, 1293 (9th Cir. 2010).

      Finally, Inciong argues that Fort Dearborn’s failure to explain a contrary

Social Security Administration decision weighs against the propriety of its decision

to terminate benefits. See Montour, 588 F.3d at 635. Inciong did not make this

argument to the district court. Regardless, the argument fails. In Montour, the

benefits administrator denied benefits at about the same time the Administration

granted them. Here, by contrast, Fort Dearborn terminated benefits fifteen years

after initially granting them, based on evidence that Inciong’s condition had

improved. There is no evidence that the Social Security Administration has


                                          5
conducted a recent review of its determination. Furthermore, if the Administration

did review its determination, the burden of proof would have rested on it to prove

that Inciong was no longer disabled. See 42 U.S.C. § 423(f). Under this policy

from Fort Dearborn, Inciong bore the burden of proving that he remained entitled

to benefits, so the fact that he continued to receive Social Security disability

benefits after July 2009 is less probative than Inciong contends.

      AFFIRMED.




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