                                                                             FILED
                           NOT FOR PUBLICATION                                DEC 18 2009

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



                           FOR THE NINTH CIRCUIT

MARK A. EPPLER, an individual,                  No. 08-16986

             Plaintiff - Appellant,             D.C. No. CV 07-04696-WHA

  v.
                                                MEMORANDUM *
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY; LONG TERM
DISABILITY AND LIFE PLAN FOR
EMPLOYEES OF MINNESOTA
METHANE LLC,

             Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                   William H. Alsup, District Judge, Presiding

                     Argued and Submitted December 7, 2009
                            San Francisco, California

Before: TASHIMA, GRABER, and BYBEE, Circuit Judges.

       Plaintiff Mark A. Eppler appeals from the summary judgment entered in

favor of Defendants Hartford Life and Accident Insurance Company and Long




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Term Disability and Life Plan for Employees of Minnesota Methane LLC. We

affirm.

      Plaintiff first contends that the district court erred in reviewing for abuse of

discretion Hartford Life’s decision to terminate his long-term disability benefits.

We review this issue de novo. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955,

962 (9th Cir. 2006) (en banc). The proper standard of review of the decision was

for abuse of discretion because the plan (not merely a collateral document)

expressly granted discretion to the plan administrator. Id. at 963. Hartford Life’s

delay in processing Plaintiff’s appeal for review of the termination decision was

not so serious a procedural violation as to alter the standard of review. Id. at 959,

971; Gatti v. Reliance Standard Life Ins. Co., 415 F.3d 978, 985 (9th Cir. 2005).

      Plaintiff next argues that the district court failed adequately to consider

Hartford Life’s conflict of interest. We review this issue de novo as well. Abatie,

458 F.3d at 962. When a conflict exists, the district court must consider it, even if

a plaintiff does not present evidence regarding the conflict. Id. at 966–67

(overruling Atwood v. Newmont Gold Co., 45 F.3d 1317 (9th Cir. 1995)). Here,

the district court observed, accurately, that Plaintiff had not introduced evidence

regarding the conflict. Such evidence could have given greater importance to the

conflict as a factor in the court’s review. See Metro. Life Ins. Co. v. Glenn, 128 S.


                                          2
Ct. 2343, 2351 (2008) (contrasting when a conflict should be "more important" and

"less important"). Nevertheless, the district court cited Glenn and Abatie and

expressly stated that it had considered the conflict in its review. This was a proper

application of Glenn and Abatie.

      Finally, Plaintiff argues that Hartford Life abused its discretion by

terminating his disability benefits. On de novo review, Bergt v. Ret. Plan for Pilots

Employed by MarkAir, Inc., 293 F.3d 1139, 1142 (9th Cir. 2002), we are not

persuaded. A court’s deference to an administrator’s decision must be tempered by

some amount of "skepticism" when the administrator has a conflict of interest.

Abatie, 458 F.3d at 968. A conflict has greater importance "where circumstances

suggest a higher likelihood that it affected the benefits decision." Glenn, 128 S. Ct.

at 2351. Here, several indicia—either brought out by Plaintiff on appeal or

recently highlighted by Montour v. Hartford Life & Accident Ins. Co., No.

08-55803, 2009 WL 3856933 (9th Cir. Nov. 19, 2009)—suggest that the conflict

may have affected the decision, including Hartford Life’s history of inappropriate

reliance on video surveillance of claimants; its characterization of the video

surveillance results in this case; its failure to explain the contrary Social Security

disability determination; its choice to conduct only a paper review of Plaintiff’s

claim; and Hartford Life’s failure to present evidence of its efforts to ensure


                                           3
unbiased claims administration. See Glenn, 128 S. Ct. at 2351–52 (describing

indicia of conflict’s importance); Montour, 2009 WL 3856933, at *9–13 (same);

Abatie, 458 F.3d at 968–69 (same). But, even viewing the decision with a

heightened level of skepticism, greater than the district court’s level of skepticism,

we conclude that there was no abuse of discretion.

      Hartford Life’s decision to terminate Plaintiff’s benefits was supported by

the record. Plaintiff’s complaints of excessive sleepiness and cognitive difficulties

even after his surgeries are not supported by objective evidence. In fact, testing

showed that Plaintiff’s sleep apnea improved after the surgeries. Plaintiff

continued to complain of sleepiness and difficulty concentrating; he appeared to

both Dr. Lewis and the private investigator to be slow and distractable. However,

Plaintiff’s credibility is severely undermined by the inconsistencies between his

activities—as shown in the surveillance videos—and the back problems of which

he also complained. Plaintiff’s exaggeration of the severity of his physical

limitations renders his subjective report of sleepiness and cognitive problems

unreliable. Plaintiff’s doctors conducted cursory evaluations of Plaintiff’s

cognitive abilities near the time of decision to terminate benefits, and those

evaluations fail to corroborate Plaintiff’s claims of serious cognitive problems.




                                          4
Thus, the district court properly granted summary judgment in favor of

Defendants.

      Plaintiff briefly mentioned several other issues, but has forfeited those issues

by failing to develop any argument regarding them. Acosta-Huerta v. Estelle, 7

F.3d 139, 144 (9th Cir. 1993).

      AFFIRMED.




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