                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 20 2010

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



                            FOR THE NINTH CIRCUIT

BETTY HOSKINS,

             Plaintiff-Appellant,                          No. 08-16706

v.                                                D.C. No. 3:06-CV-07589-MMC

BAYER CORPORATION AND                                   MEMORANDUM*
BUSINESS SERVICES LONG TERM
DISABILITY PLAN; BAYER
CORPORATION DISABILITY PLANS;
BAYER CORPORATION,

             Defendants-Appellees.


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

                      Argued and Submitted October 5, 2009
                            San Francisco, California

Before: SCHROEDER and BERZON, Circuit Judges, and STROM,** District
Judge.
_____________________

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

      **      The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
             Betty Hoskins (“Hoskins”) appeals the district court’s grant of

judgment in favor of Bayer Corporation Disability Plans (“the Plan”)1 in her action

under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. §§ 1001, et seq., challenging the termination of her long-term disability

benefits under the Plan. We affirm.

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

standard of review to decisions by fiduciaries in ERISA cases.” Abatie v. Alta

Health & Life Ins. Co., 458 F.3d 955, 962 (9th Cir. 2006)(en banc). In this case, an

abuse of discretion standard of review applies because the Plan grants the Plan

administrator, Bayer Corporation (“Bayer”), discretionary authority to determine

eligibility for benefits and construe terms of the Plan, and Bayer did not commit

any serious procedural irregularities that would trigger de novo review. See id. at

963, 971-72. The degree of deference we accord Bayer’s decision is impacted by

the fact that Bayer operates under a conflict of interest, see id. at 965-69, but it is

not necessary to thoroughly analyze the importance of this conflict because

Bayer’s decision to terminate benefits should be affirmed even when reviewed

with a high level of skepticism.



      1
       The case caption erroneously lists multiple defendants-appellees. The only
defendant-appellee appearing in this action is Bayer Corporation Disability Plans.
                                           -2-
             Accordingly, we turn to the merits. Bayer terminated Hoskins’

benefits in part because it found she was not under the regular care of a physician.

Bayer did not abuse its discretion when it terminated benefits on this ground.

             Pursuant to a summary description of the benefit plan applicable to

Hoskins’ claim, an employee is not entitled to long-term disability benefits unless

she is “totally disabled.”2 The summary description further provides: “An

employee is not totally disabled during any period in which [s]he is not under the

regular care and attendance of a legally qualified physician . . . .”

             Broadspire Services, Inc. (“Broadspire”), which was the claim

administrator for the Plan, contacted Hoskins on several occasions in an effort to

obtain information regarding her receipt of medical care. Despite these attempts,

Hoskins did not provide medical documentation that she received any treatment for

her disabling condition from August 2004 until the time benefits were terminated

in July 2005.

             Broadspire first notified Hoskins in letters dated July 12, 2004, and

August 23, 2004, that she needed to provide updated information to certify her


      2
        This memorandum quotes language provided in a summary description of
the benefit plans applicable to bargaining unit employees because Hoskins does not
dispute that she is a bargaining unit employee. However, the Court notes that the
relevant language is substantially the same as language in the Summary Plan
Description of the benefit plans applicable to non-bargaining unit employees.
                                           -3-
continued eligibility for benefits. Broadspire requested that Hoskins complete and

return certain forms, but it did not receive a response to these requests. Broadspire

sent Hoskins a third letter dated April 8, 2005, wherein it informed Hoskins that

the information it had did not support a finding that she was under the regular care

of a physician. The letter further stated that Hoskins needed to submit additional

medical documentation that she was under the regular care of a physician, or

benefits could be terminated. As of July 8, 2005, Hoskins had not produced the

requested documentation, and she was notified by letter that benefits were

terminated effective July 31, 2005. In the termination notice letter, Broadspire

informed Hoskins that she could appeal the determination and reiterated that she

had to provide additional documentation of continuing medical care in order for

benefits to be reinstated.

             While Hoskins was sufficiently on notice of the need to provide

additional evidence that she was under the regular care of a physician, there is no

medical documentation in the record that establishes she received any treatment for

her disabling condition during the 11-month period preceding the termination of

benefits. Based on these facts, Bayer did not abuse its discretion when it found

Hoskins was not under the regular care of a physician as required by the Plan, and

it was entitled to terminate benefits on this basis.


                                           -4-
The district court’s grant of judgment in favor of the Plan is affirmed.




                            -5-
