                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 19 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL ALVES,                                  No.    18-55819

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-09136-RGK-JEM
 v.

HEWLETT-PACKARD                                 MEMORANDUM*
COMPREHENSIVE WELFARE
BENEFITS PLAN; HEWLETT-PACKARD
ENTERPRISE COMPANY,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                          Submitted November 15, 2019**
                              Pasadena, California

Before: M. SMITH, MILLER, and COLLINS, Circuit Judges.

      Plaintiff-Appellant Alves challenges ERISA Plan Administrator Sedgwick’s

(Sedgwick) termination of his short-term disability benefits, and denial of his



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application for long-term disability benefits, under the Hewlett Packard Enterprise

Comprehensive Welfare Benefits Plan (Plan). Alves, a former technology

consultant, suffers from congestive heart failure and other ailments. Sedgwick

determined that Alves’s condition did not prevent him from continuing to perform

his largely sedentary job duties. After a bench trial on the papers, the district court

upheld Sedgwick’s decisions as to both types of benefits.

      We affirm the district court’s judgment insofar as it upholds Sedgwick’s

termination of Alves’s short-term disability benefits under the Plan. Sedgwick’s

determination that Alves was not “Totally Disabled,” and able to perform his

sedentary work duties, was supported by the record and was not an abuse of

discretion. See Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676

(9th Cir. 2011) (quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir.

2009) (enbanc)).

      However, we vacate the district court’s judgment affirming the denial of

Alves’s long-term disability benefits appeal, and remand to the district court with

instructions to remand to Sedgwick for it to redo its evaluation and correctly apply

the terms of the Plan. See Pannebecker v. Liberty Life Assurance Co. of Boston,

542 F.3d 1213, 1221 (9th Cir. 2008) (citing Saffle v. Sierra Pac. Power Co.

Bargaining Unit Long Term Disability Income Plan, 85 F.3d 455, 460–61 (9th Cir.

1996)). Sedgwick abused its discretion in denying Alves’s appeal on the ground


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that he failed to meet the one-week “waiting period” provided in the Plan, even

though Alves, who validly received short-term benefits for several months, clearly

met the requirement. See Salomaa, 642 F.3d at 678.

      On remand, we remind Sedgwick that, to the extent that its decision is based

on a medical judgment, it must “consult with a health care professional who has

appropriate training and experience in the field of medicine involved in the

medical judgment,” 29 C.F.R. § 2560.503-1(h)(3)(iii), and “who is neither an

individual who was consulted in connection with the adverse benefit determination

that is the subject of the appeal, nor the subordinate of any such individual,” 29

C.F.R. § 2560.503-1(h)(3)(v).

      Accordingly, we PARTIALLY AFFIRM and PARTIALLY VACATE the

district court’s judgment, and REMAND to the district court with instructions to

remand to Sedgwick for a redetermination of Alves’s long-term disability benefits

appeal. We award the costs on appeal to Alves. 29 U.S.C. § 1132(g)(1).




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