                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 10 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALLEN RUDE,                                      No. 13-15834

              Plaintiff - Appellant,             D.C. No. 2:11-cv-01966-FJM

 v.
                                                 MEMORANDUM*
INTEL CORPORATION LONG TERM
DISABILITY BENEFIT PLAN; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Arizona
               Frederick J. Martone, Senior District Judge, Presiding

                      Argued and Submitted October 19, 2015
                            San Francisco, California

Before: SILVERMAN and CHRISTEN, Circuit Judges, and DUFFY,** District
Judge.

      Allen Rude appeals the district court’s summary judgment in his action

under the Employee Retirement Income Security Act (“ERISA”), challenging the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
denial of his claim for long-term disability benefits under the Intel Corp. Long

Term Disability Plan. We have jurisdiction under 28 U.S.C. § 1291, and we vacate

the district court’s judgment.

      We review de novo the district court’s choice and application of the standard

of review in an ERISA case. Pac. Shores Hosp. v. United Behavioral Health, 764

F.3d 1030, 1039 (9th Cir. 2014). When an ERISA plan unambiguously confers

discretion to an administrator to determine eligibility for benefits, we review a

denial of benefits for an abuse of discretion. Id. at 1040. Any procedural

irregularity or administrator’s operation under a conflict of interest are considered

as factors in determining whether there has been an abuse of discretion. Id.

      Aetna abused its discretion in denying Rude’s benefits because it applied

inconsistent yardsticks when measuring what Rude’s job was and what he was

capable of performing. On the one hand, Dr. D. Kelly Agnew, Aetna’s reviewing

orthopedic surgery specialist, determined that Rude was capable of sedentary work

because he could, among other things, stand for three or four hours, and walk three

to four hours in total with position changes. However, Aetna also found that

Rude’s job most closely correlated with sedentary work as defined in the

Dictionary of Occupational Titles, which “may involve walking or standing for




                                           2
brief periods of time. Jobs are sedentary if walking and standing are required only

occasionally . . . .” DOT App. C (emphasis added).

      Aetna’s characterization of Rude’s job as sedentary is also inconsistent with

statements from Rude’s supervisor, who stated that Rude’s job involved as much

as two hours of walking and one hour of standing per day, and from Rude himself,

who stated that his job required three hours of standing and one hour of walking

per day.

      Accordingly, we vacate the district court’s judgment and remand for an

award of benefits. See Salomaa v. Honda Long Term Disability Plan, 642 F.3d

666, 676 (9th Cir. 2011) (holding that ERISA administrator’s decision will not be

upheld if it is illogical, implausible, or without support in inferences that could

reasonably be drawn from facts in the record). The benefits to be awarded shall be

those for the six months of long term disability remaining in Rude’s “own

occupation” period. Rude is not entitled to benefits for the subsequent “any

occupation” period because, as the analysis above illustrates, he retains the ability

to do some work. We need not, and do not, reach any other issues raised on

appeal.

      VACATED and REMANDED.




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