                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 07 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PATRICIA BROYLES,                                 No. 09-17658

              Plaintiff - Appellant,              D.C. No. 3:07-cv-05305-MMC

  v.
                                                  MEMORANDUM *
A.U.L. CORPORATION LONG TERM
DISABILITY INSURANCE PLAN,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Northern District of California
                Maxine M. Chesney, Senior District Judge, Presiding

                      Argued and Submitted December 9, 2010
                             San Francisco, California

Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges.

       Petitioner Patricia Broyles (“Broyles”) appeals the district court’s order

denying her claim for benefits under the A.U.L. Disability Plan (“Plan”), a long-

term disability benefits plan governed by the Employee Retirement Income


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461. The district court found that

Appellee Standard Insurance Company (“Standard”) did “not abuse its discretion

in finding Broyles did not meet the Plan’s definition of disabled.” ER 14. We

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

       When a district court conducts a bench trial on the administrative record, we

review the “‘choice and application of the appropriate standard for reviewing

benefits decisions by an ERISA plan administrator’ de novo.” Montour v.

Hartford Life & Accident Ins. Co., 588 F.3d 623, 629 (9th Cir. 2009) (quoting

Sznewajs v. U.S. Bancorp Amended & Restated Supplemental Benefits Plan, 572

F.3d 727, 732 (9th Cir. 2009)). The district court’s findings of fact are reviewed

for clear error. Id.

       Because the Plan grants discretionary authority to Standard, we review

Standard’s decision for abuse of discretion. Id. (quoting Saffon v. Wells Fargo Co.

Long Term Disability Plan, 522 F.3d 863, 866 (9th Cir. 2008)). Where, as here,

“the same entity that funds an ERISA benefits plan also evaluates claims,” the plan

administrator has a “structural conflict of interest: since it is also the insurer,

benefits are paid out of the administrator’s own pocket, so by denying benefits, the

administrator retains money for itself.” Id. at 630. The existence of a conflict of

interest does not alter the standard of review itself, but instead alters its application.


                                             2
Id. at 631. “If [the] facts and circumstances [of a case] indicate the conflict may

have tainted the entire administrative decision-making process, the court should

review the administrator’s stated bases for its decision with enhanced skepticism:

this is functionally equivalent to assigning greater weight to the conflict of interest

as a factor in the overall analysis of whether an abuse of discretion occurred.” Id.

      We conclude that Standard did not abuse its discretion in denying Broyles’

claim for benefits. The district court correctly reviewed the administrator’s

exercise of discretion with a low level of skepticism, as Broyles did not submit any

evidence demonstrating a conflict of interest beyond the structural conflict. The

district court then properly concluded that the Attending Physician’s Statement

provided by Broyles’ treating physician was “unclear and open to conflicting

interpretations,” and was unsupported; that any disability that occurred outside the

benefits period was irrelevant for the purposes of evaluating Broyles’ claim; and

that Broyles’ self-reported symptoms were inconsistent with a finding of disabling

pain. ER 11-14. In light of the conflicting evidence in the record, Standard did

not abuse its discretion in denying Broyles’ claim for benefits.

      We also affirm the district court’s decision granting Standard’s motion to

strike Broyles’ supplemental evidence. The evidence submitted by Broyles did not




                                           3
relate to the effect of the structural conflict of interest on Standard’s decision. See

Abatie v. Alta Health Life Ins. Co., 458 F.3d 955, 970 (9th Cir. 2006) (en banc).

      AFFIRMED.




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