                                                                                FILED
                               NOT FOR PUBLICATION                               DEC 22 2010

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




                               FOR THE NINTH CIRCUIT



TERRY ALUISI,                                        No. 09-17828

                 Plaintiff - Appellant,              D.C. No. 1:04-cv-05373-AWI-
                                                     SMS
     v.

UNUM LIFE INSURANCE COMPANY                          MEMORANDUM *
OF AMERICA, AKA UNUM Provident;
et al.,

                 Defendants - Appellees.



                      Appeal from the United States District Court
                          for the Eastern District of California
                     Anthony W. Ishii, Chief District Judge, Presiding

                        Argued and Submitted December 10, 2010
                                San Francisco, California

Before: HAWKINS and N.R. SMITH, Circuit Judges, and PRO, District Judge.**

1.        The district court did not clearly err in finding that the record was adequate

for review. See Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 629


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
           **
             The Honorable Philip M. Pro, United States District Judge for the
District of Nevada, sitting by designation.
(9th Cir. 2009). The record contained current medical records from five doctors;

results of X-rays, MRIs, CT scans, and other diagnostics; correspondence between

Unum and Aluisi and his doctors; and a personal interview with Aluisi. ERISA

requires that the plan administrator engage in a meaningful dialogue and allow the

claimant an opportunity to submit evidence to support his claim. Saffon v. Wells

Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 870 (9th Cir. 2008). This

includes telling the beneficiary, in language he can understand, the reason for the

denial of his claim and what additional information is necessary to perfect his

claim. 29 C.F.R. § 2560.503-1(g)(1). At oral argument Aluisi conceded that

Unum did not violate any of ERISA’s statutory procedures. Unum’s denial letter

clearly explained to Aluisi that his claim was being denied because video

surveillance contradicted his claims that he was in extreme pain after more than

fifteen minutes of sitting, standing, or walking. Aluisi was given the opportunity

to view and respond to the video surveillance and to explain how his back

condition prevented him from working. The record was an adequate basis for

Unum’s decision.

2.    We review a district court’s choice and application of the appropriate

standard of review for reviewing benefits decisions by an ERISA plan

administrator de novo. Pannebecker v. Liberty Life Assurance Co. of Boston, 542


                                          2
F.3d 1213, 1217 (9th Cir. 2008). We review the district court’s underlying

findings of fact for clear error. Id.

       The district court found that Unum had a structural conflict of interest and a

history of biased claims administration. It also noted that Unum’s use of the

Dictionary of Occupational Titles rather than Aluisi’s actual job description was

minor evidence of a conflict. On the other hand, the court found that Unum had

implemented procedures to prevent bias, which minimized the importance of the

conflict of interest. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 117 (2008).

Therefore, the court applied a medium level of skepticism to Unum’s

determination to deny benefits. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d

955, 967-68 (9th Cir. 2006) (en banc) (degree of skepticism depends on nature,

extent, and effect of conflict of interest).

       On appeal Aluisi argues that minor errors in processing his claim, Unum’s

alleged lies, and some inaccurate medical reviews justify a greater degree of

skepticism. We disagree. First, while Unum made minor errors when requesting

medical records, these errors did not prevent Unum from effectively obtaining and

evaluating the records. Second, Aluisi’s allegation that Unum lied to him or to

other parties is not supported by the record. Finally, while the first medical

reviews by Nurse Cross do show signs of bias, this does not warrant a greater


                                               3
degree of skepticism than the district court applied. Despite Nurse Cross’s bias,

the reviews contain large portions of the original records. In addition, following

her reviews, Aluisi’s claim was granted. Later reviews did not show the same bias.

Aluisi’s claim was denied based on the inconsistency between his observed

activities and his self-reported claims of pain, not Nurse Cross’s evaluations. The

district court’s application of a medium degree of skepticism was therefore

sufficient to account for Unum’s conflict of interest and any minor defects in

Unum’s claims process.

3.    We agree with the district court that Unum’s decision was adequately

supported by the record and not an abuse of discretion. Aluisi repeatedly told

Unum that he was unable to work because sitting, standing, or walking for more

than fifteen minutes caused him unbearable pain. He later claimed that this pain

prevented him from working because he could not concentrate. The surveillance

video, however, provided objective evidence contradicting Aluisi’s assertion that

he had unbearable pain. The opinion of a treating physician is not entitled to any

special deference under ERISA, but the plan administrator may not arbitrarily

ignore credible evidence. Black & Decker Disability Plan v. Nord, 538 U.S. 822,

834 (2003). Although Dr. Azevedo disagreed with Unum’s opinion that the video

disproved Aluisi’s disability, Aluisi’s primary physician, Dr. Javaid, agreed with


                                          4
Unum. Moreover, rather than simply ignoring Dr. Azevedo’s opinion, Unum’s

physician adequately explained his reasons for disagreeing with Dr. Azevedo.

Unum did not abuse its discretion by denying Aluisi’s claim.

4.    Appellee’s Motion to Strike Portions of Appellant’s Brief and Record

Excerpts Not in the Record is granted.

      AFFIRMED.




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