                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 13 2010

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




                            FOR THE NINTH CIRCUIT



SUN SUN LIN,                                      No. 09-55434

              Plaintiff - Appellant,              D.C. No. 8:08-cv-00107-DOC-AN

  v.
                                                  MEMORANDUM *
MELLON LONG TERM DISABILITY
PLAN, an ERISA plan,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                         Argued and Submitted May 5, 2010
                               Pasadena, California

Before: NOONAN, CLIFTON and BYBEE, Circuit Judges.

       Plaintiff-appellant Sun Sun Lin (“Lin”) appeals the district court’s grant of

summary judgment in favor of defendant-appellee Mellon Long Term Disability

Plan (“the Plan”). Because the Plan Administrator—the Corporate Benefits




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Committee (“CBC”)—neither interpreted the Plan unreasonably nor abused its

discretion in determining that Lin was not totally disabled, we affirm.

      Lin argues that the CBC failed to provide her with a full and fair review of

the denial of her claim for long term disability benefits. Lin points to § 6.5(a)(2) of

the Plan, which provides that the CBC “shall take into account all comments,

documents, records, and other information submitted by the participant relating to

the Claim, without regard to whether such information was submitted or

considered in the initial benefit determination.” 1 According to Lin, the CBC ran

afoul of § 6.5(a)(2) because it did not directly consider certain documents relating

to an earlier determination that Lin was totally disabled under a less stringent

definition of total disability.2 Lin relies on a statement by the Plan’s attorneys “that



      1
        Section 6.5(a)(2) mirrors the language of 29 C.F.R. § 2560.503-1(h)(2),
which states that “the claims procedures of a plan will not be deemed to provide a
claimant with a reasonable opportunity for a full and fair review of a claim and
adverse benefit determination unless the claims procedures . . . (iv) Provide for a
review that takes into account all comments, documents, records, and other
information submitted by the claimant relating to the claim, without regard to
whether such information was submitted or considered in the initial benefit
determination.”
      2
         In 2004, the Plan found Lin to be totally disabled from performing the
essential duties of her own occupation. Under the terms of the Plan, after two
years of benefits under the “own occupation” definition of total disability, benefits
are provided only if the claimant is determined to be totally disabled under the
more exacting “any occupation” standard.

                                          -2-
the CBC did not directly consider those documents in making its determination to

deny [Lin’s] claim,” but did “‘indirectly’ consider[] these documents to the extent

they were reviewed and considered by” an independent medical examiner retained

by the CBC in its review of Lin’s appeal.

      The Plan does not, by its terms, contain any “direct[] consider[ation]”

requirement. Rather, § 6.5(a)(2) of the Plan requires the CBC to “take into account

all comments, documents, records, and other information submitted by the

participant relating to the Claim.” The CBC fully complied with this requirement:

in its letter of October 29, 2007, advising Lin that it was rejecting her appeal, the

CBC stated that “[i]n making [its] determination, the CBC considered [Lin’s]

entire administrative record, including information [Lin] submitted on appeal and

the report of an independent medical professional.” Moreover, § 6.5(a)(3)

provides that the CBC “shall, in the event of an appeal of any Adverse Benefit

Determination that is based in whole or in part on medical judgment, consult with a

Health Care Professional who has appropriate training and experience in the field

of medicine involved in the medical judgment.” Here, the CBC designated an

independent medical expert to review all documents submitted by Lin, and then

directly reviewed the medical expert’s report as well as other documents. The




                                          -3-
CBC did not interpret § 6.5(a)(2) as requiring it to directly review each and every

document considered by the independent medical expert.

      The Plan unambiguously delegates discretion to the CBC, so we review the

CBC’s interpretation of the Plan and its determination that Lin was not totally

disabled for abuse of discretion. Kearney v. Standard Ins. Co., 175 F.3d 1084,

1090 (9th Cir. 1999) (en banc). We must defer to the CBC’s decisionmaking

“unless it [wa]s not grounded on any reasonable basis.” Sznewajs v. United States

Bancorp Amended & Restated Supplemental Benefits Plan, 572 F.3d 727, 734-35

(9th Cir. 2009). In light of the plain language of the Plan, which provides that the

CBC need only “take into account,” not “directly consider,” all documentation, and

which actually requires that the CBC consult an independent expert on questions

of medical judgment, the CBC did not abuse its discretion in “indirectly

consider[ing]” certain medical documents relating to an earlier benefits

determination under a different disability standard. Moreover, the record makes

clear that the CBC had a reasonable basis for determining that Lin was not totally

disabled under the Plan’s “any occupation” standard.

      AFFIRMED.




                                         -4-
