                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 08 2011

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




                            FOR THE NINTH CIRCUIT

KATHY DINE,                                      No. 09-56761

              Plaintiff - Appellant,             D.C. No. 2:05-cv-03773-RSWL-
                                                 PLA
  v.

METROPOLITAN LIFE INSURANCE                      MEMORANDUM *
COMPANY; THE BOEING EXTENDED
DISABILITY BENEFITS PLAN;
BOEING MEDICAL PLAN; BOEING
LIFE INSURANCE PLAN; BOEING
PENSION/RETIREMENT PLAN,

              Defendants - Appellees.



                  Appeal from the United States District Court
                      for the Central District of California
                Ronald S.W. Lew, Senior District Judge, Presiding

                       Argued and Submitted August 1, 2011
                               Pasadena, California

Before: REINHARDT and BERZON, Circuit Judges, and PANNER, Senior
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Owen M. Panner, Senior District Judge for the U.S.
District Court for Oregon, Portland, sitting by designation.
      Kathy Dine brought this ERISA action against Metropolitan Life Insurance

Company (“MetLife”), the administrator of her former employer’s long-term

disability benefits plan. She contends the plan abused its discretion by terminating

her long-term disability benefits. We agree and reverse and remand for further

proceedings.

      It is undisputed that MetLife’s denial of benefits is reviewed for abuse of

discretion, and that MetLife has a structural conflict of interest because it “both

evaluates claims for benefits and pays benefits claims.” Metropolitan Life Ins. Co.

v. Glenn, 554 U.S. 105, 112 (2008). When structural conflict exists “the court

must consider numerous case-specific factors, including the administrator's conflict

of interest, and reach a decision as to whether discretion has been abused by

weighing and balancing those factors together.” Montour v. Hartford Life &

Accident Ins. Co., 588 F.3d 623, 630 (9th Cir. 2009). “[A] higher degree of

skepticism is appropriate where the administrator has a conflict of interest.”

Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011).

The administrator has the burden of proving that the conflict of interest did not

improperly influence its decision. See Muniz v. Amec Constr. Mgmt., Inc., 623

F.3d 1290, 1295 (9th Cir. 2010).




                                          -2-
      Here, three circumstances cause us to conclude MetLife abused its

discretion. First, the record indicates MetLife notified Dine by letter that it was

“presently reviewing your claim” and stated that if “additional information is

needed to complete our review, we will notify you accordingly.” Notwithstanding

those statements, MetLife shortly thereafter denied Dine’s appeal, stating that she

had submitted insufficient evidence. Second, MetLife’s determination that Dine

was not disabled contradicted the opinion of her treating physician. Third, MetLife

ignored its own reviewing physician’s advice to order an independent medical

examination.

      Given these circumstances, we conclude the administrator’s decision was

“without support in inferences that could reasonably be drawn from facts in the

record.” Salomaa, 642 F.3d at 676. Accordingly, we reverse and remand to the

district court to enter judgment in favor of Dine and to order reinstatement of her

long-term disability benefits “until the administrator properly applies the plan’s

provisions.” Pannebecker v. Liberty Life Assurance Co. of Boston, 542 F.3d 1213,

1221 (9th Cir. 2008).

      REVERSED and REMANDED.




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