                                                                             FILED
                           NOT FOR PUBLICATION                                JAN 28 2015

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



                           FOR THE NINTH CIRCUIT


MIAE DECOVICH,                                  No. 12-16803

             Plaintiff - Appellant,             D.C. No. 2:11-cv-00872-JCM-
                                                CWH
       v.

ANTHEM LIFE INSURANCE                           MEMORANDUM*
COMPANY, as Claims Administrator on
behalf of Venetian Insurance Package
Long-Term Disability Plan,

             Defendant - Appellee.

                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                     Argued and Submitted December 9, 2014
                            San Francisco, California

Before: O’SCANNLAIN, FISHER and HURWITZ, Circuit Judges.

      Appellant Miae Decovich appeals the district court’s grant of summary

judgment in favor of Anthem Life Insurance Company. We reverse and remand

for further proceedings.



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     Under de novo review, there is a triable issue of fact as to whether

Decovich was disabled under the terms of the disability policy. See Kearney v.

Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc). Although the

district court correctly articulated the standard of review, it proceeded to analyze

whether the denial of Decovich’s disability claim was reasonable. Instead, it was

required to “undertake an independent and thorough inspection of [the]

administrator’s decision.” Silver v. Exec. Car Leasing Long-Term Disability Plan,

466 F.3d 727, 733 (9th Cir. 2006).

      While neither of Custom Disability Services (CDS)’s reviewing physicians

opined that Decovich’s fibromyalgia was disabling, other evidence submitted by

Decovich supported her disability claim. A physical evaluation submitted by

Decovich’s primary care physician, Dr. Tsai, notes Decovich’s experience of pain

is frequently severe enough to interfere with attention and concentration. It further

observes she can handle only 15 minutes of standing or walking about at a time,

requires a cumulative resting time of two hours, and can only use her hands

“occasionally.”

      Decovich also submitted evidence that, as a dealer, she was required to

“have the physical stamina to be able to stand and deal for long periods of time,”

“withstand prolonged standing, stretching, bending and kneeling without


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restriction” and “maintain physical stamina.” Given this job description, based on

Dr. Tsai’s physical assessment, Decovich could not fulfill her job requirements as a

card dealer. Similarly, Decovich’s rheumatologist, Dr. Jianu, opined that she was

unable to perform her current occupation. Although not all of Decovich’s treating

physicians opined that she suffered functional limitations, Dr. Tsai’s evaluation

and Dr. Jianu’s opinion were sufficient to create a material dispute of fact.1

Summary judgment in Anthem’s favor was thus improper. See Kearney, 175 F.3d

at 1095.

      2.     The eight-page letter from CDS denying Decovich’s request for

reconsideration of the denial of her clam for benefits includes a section entitled

“Additional observations.” The section recites that several doctors had

“recommended psychiatric evaluation [or] . . . treatment,” and then states:

             None of the medical documentation provided to us
             indicates that you ever sought the recommended
             psychiatric evaluation and/or treatment. In the absence
             of behavioral health or psychiatric treatment notes and/or
             evaluations, there is insufficient file documentation to
             submit for review by a behavioral health specialist.

      1
         The dissent notes that Dr. Tsai deferred assessment of work restrictions and
limitations to Decovich’s other treatment providers. What Dr. Tsai meant by that
deferral is disputed. Regardless, Dr. Tsai’s opinion regarding Decovich’s
functional impairment is consistent with that of Dr. Jianu, the other treatment
provider Dr. Gendron contacted, who similarly opined that Decovich was unable to
perform her current job.

                                          3
      The statement does not “tack[] on a new reason for denying benefits.”

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 974 (9th Cir. 2006) (en banc).

Decovich never claimed to be disabled based on a “mental condition,” or “mental

illness,” so CDS’s conclusion that there was no warrant to explore those conditions

could not have been a reason for denying benefits. Thus, on remand, review

should be on the record that was before the administrator. Id.

      REVERSED AND REMANDED.




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                                                                                 FILED
Decovich v. Anthem Life Insurance Company, No. 12-16803                           JAN 28 2015

                                                                             MOLLY C. DWYER, CLERK
O’SCANNLAIN, Circuit Judge, dissenting in part:                                U.S. COURT OF APPEALS



      I respectfully dissent from part one of the disposition. Although the district

court uses the word “reasonable” when analyzing CDS’s denial of Decovich’s

claim, it expressly states in the preceding lines of the order that it is engaging in de

novo review and rejects the “arbitrary and capricious” standard. The district court

then proceeds to engage in a thorough de novo review, concluding that Decovich

failed to meet her burden of showing a factual dispute as to whether she established

eligibility for disability benefits under the policy.

      Moreover, such a conclusion was appropriate. In light of the overwhelming

evidence to support the finding that Decovich failed to establish functional

impairment—including (i) medical examinations and tests that showed no physical

abnormalities, (ii) reports from Decovich’s treating specialists, including Dr. Jianu,

indicating that Decovich was not functionally impaired, (iii) Dr. Tsai’s deferral of

his assessment of Decovich’s work-related restrictions and limitations to

Decovich’s other treatment providers, and (iv) Dr. Gendron’s observation that

individuals with fibromyalgia are often encouraged to engage in physical

activity—there is no genuine issue of material fact as to whether CDS erred in

denying Decovich’s disability claim.
      Thus, because the district court engaged in de novo review of CDS’s denial

of Decovich’s claim and appropriately concluded that no material dispute of fact

remains, I would affirm the district court’s grant of summary judgment in favor of

Anthem.




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