                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 14 2014

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



                            FOR THE NINTH CIRCUIT


PAMELA LEE,                                      No. 12-15579

              Plaintiff - Appellant,             D.C. No. 3:09-cv-02176-JW

  v.
                                                 MEMORANDUM*
KAISER FOUNDATION HEALTH
PLAN LONG TERM DISABILITY
PLAN,

              Defendant - Appellee.,

METROPOLITAN LIFE INSURANCE
COMPANY,

              Counter-claimant - Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                     James Ware, District Judge, Presiding

                     Argued and Submitted February 14, 2014
                            San Francisco, California

Before: KOZINSKI, Chief Judge, and O’SCANNLAIN and MURGUIA, Circuit
Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Appellant Pamela Lee, a former employee of Kaiser Foundation Health Plan,

Inc. (“Kaiser”), appeals from the district court’s order granting summary judgment.

In the district court, Lee unsuccessfully disputed the benefit determination by

Metropolitan Life Insurance Co. (“MetLife”), the third-party administrator of her

employer-sponsored long-term disability (LTD) program, a plan subject to the

Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001

et seq. We affirm the district court in full.1

                                            I

      When governing documents confer discretion on the administrator of an

ERISA plan, courts review its determinations for abuse of discretion. See, e.g.,

Conkright v. Frommert, 559 U.S. 506, 512 (2010). The documents governing

Kaiser’s LTD benefit program, read together, unambiguously delegated “complete

discretionary authority” to MetLife and mandated that MetLife’s determination “be

given the maximum possible deference allowed by law.” See Kearney v. Standard

Ins. Co., 175 F.3d 1084, 1090 (9th Cir. 1999) (en banc). Furthermore, structural

conflicts, such as when an insurance company is both fiduciary of a plan and payor

      1
       “We review de novo the district court’s grant of summary judgment”; in the
context of ERISA cases, this standard requires us to “review de novo a district
court’s choice and application of the standard of review to decisions by
fiduciaries.” Gilliam v. Nev. Power Co., 488 F.3d 1189, 1192 n.3 (9th Cir. 2007)
(internal quotation marks omitted).

                                            2
of the benefits thereunder, do not divest the administrator of his delegated

discretion. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 115–16 (2008). Rather,

they weigh more or less heavily as factors in the abuse-of-discretion calculus. See

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); see also Abatie

v. Alta Health & Life Ins. Co., 458 F.3d 955, 967 (9th Cir. 2006) (en banc) (“We

read Firestone to require abuse of discretion review whenever an ERISA plan

grants discretion to the plan administrator, but a review informed by the nature,

extent, and effect on the decision-making process of any conflict of interest that

may appear in the record.”). The district court properly reviewed MetLife’s

decision for abuse of discretion.2

      Lee has not shown that MetLife’s structural conflict as both administrator

and payor weighs heavily against its exercise of discretion in her case. In the first

place, Lee has not offered any credible evidence that MetLife’s procedures are

unreasonable. Secondly, her allegations concerning the bias of the independent




      2
        We decline to address Lee’s argument that the California Insurance
Commissioner withdrew approval of the contract. Lee summarily mentioned such
argument in her opening brief and did not cite any legal authority, and offered only
a terse description in her reply. She has failed, therefore, to raise the issue
adequately. See Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1005 n.1 (9th Cir.
1995).

                                          3
physician consultants (IPCs), whose reports MetLife considered in making its final

determination, are speculative and conclusory.3

                                          II

      By determining that Lee’s putative disability qualified as a “Mental or

Nervous Disorder or Disease,” and thereby limiting her LTD benefits to twenty-

four months pursuant to the provisions of the plan documents, MetLife did not

abuse its discretion. Unlike the plans at issue in Patterson v. Hughes Aircraft Co.,

11 F.3d 948, 950–51 (9th Cir. 1993), and Lang v. Long-Term Disability Plan of

Sponsor Applied Remote Technology, Inc., 125 F.3d 794, 799 (9th Cir. 1997), the

benefit limitation applicable to psychiatric disabilities does not suffer from

ambiguity.4 Thus, Lee has not demonstrated that MetLife acted unreasonably by

paying Lee only twenty-four months of benefits. See Salomaa v. Honda Long

Term Disability Plan, 642 F.3d 666, 675–76 (9th Cir. 2011).

      AFFIRMED.



      3
      Such allegations, furthermore, are insufficient to show that the district court
improperly denied her discovery concerning the bias of one IPC.
      4
        The relevant plan document defines “Mental or Nervous Disorder or
Disease,” as “a medical condition of sufficient severity to meet the diagnostic
criteria established in the current Diagnostic And Statistical Manual Of Mental
Disorders.” If Lee’s disabling condition meets these criteria, then whether it arose
from physical causes, psychiatric causes, or a combination of both is irrelevant.

                                          4
