                              NOT FOR PUBLICATION                        FILED
                       UNITED STATES COURT OF APPEALS                      JAN 4 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT

LESLIE HOFFMAN,                                 No.    16-56663

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-01530-R-AJW
 v.

SCREEN ACTORS GUILD PRODUCERS                   MEMORANDUM *
PENSION PLAN; BOARD OF TRUSTEES
SCREEN ACTORS GUILD PENSION
PLAN; DOES, 1 through 10,

                Defendants-Appellees.

                       Appeal from the United States District Court
                          for the Central District of California
                        Manuel L. Real, District Judge, Presiding

                          Argued and Submitted April 12, 2018
                                 Pasadena, California

      Before: BEA and MURGUIA, Circuit Judges, and BASTIAN,** District
Judge.

      Plaintiff-Appellant Leslie Hoffman appeals the decision of the district court,

affirming the retroactive termination of her disability benefits by the Screen Actors


      *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Stanley Allen Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
Guild-Producers Pension Plan, a defined benefit plan subject to the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001–1461, and the

Board of Trustees Screen Actors Guild Pension Plan, the plan’s administrator

(collectively, “the Plans”). We have jurisdiction under 28 U.S.C. § 1291. Because

we conclude that the district court erred in granting the Plans’ motion for summary

judgment, we reverse and remand.

      The Plans manage a defined benefit plan subject to ERISA. In order to

receive benefits pursuant to the terms of the plan, an individual must be “totally

disabled”: (1) receiving Social Security Disability Benefits; and (2) “unable to

engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or to

continue for the individual=s lifetime.” Hoffman is a retired stunt actor who ceased

work in May 2000 due to numerous physical injuries and severe depression. On

February 20, 2004, Administrative Law Judge Robin Wright found Hoffman to be

totally disabled by way of severe major depression since February 25, 2002, and

awarded her Social Security Disability Benefits. In 2004, Plaintiff likewise applied

for disability benefits under the plan. Based on reports of Plaintiff’s treating

physicians Richard Handler, M.D., Hal Rubin, M.D., Ruth Cassin, M.D., and the

Plans’ own medical director, Robert Shakman, M.D., who all found Plaintiff



                                           2
totally disabled as a result of various physical and psychological injuries, Plaintiff

received disability benefits.

      In 2008, Plaintiff elected to convert her disability pension into an

occupational disability pension. In 2010, the Plans wrote that Dr. Shakman had

reviewed all of the medical documentation and determined Plaintiff’s disability to

be a result of severe major depression and not occupational in nature. The decision

was affirmed on administrative appeal, and Plaintiff filed suit. Hoffman v. Screen

Actors Guild-Producers Pension Plan, et al., No. CV 10-0613 GAF (AJWx), 2012

WL 12887076 (C.D. Cal. May 3, 2012). The district court affirmed the denial of

benefits on summary judgment and rejected Plaintiff’s contention that her

disability was due, in part, to physical impairments. Id. Plaintiff appealed, and this

Court reversed the district court’s grant of summary judgment in favor of the Plans

for violations of ERISA claims procedures and remanded to the Plans for further

proceedings. Hoffman v. Screen Actors Guild Producers Pension Plan, et al., 571

Fed. Appx. 588 (9th Cir. 2014). We directed the Plans that Plaintiff was entitled to

a second medical opinion on administrative appeal and a fully developed record

resulting therefrom. Id. at 591.

      On remand, the Plans again denied Hoffman’s application for occupational

disability benefits. This prompted a review of Hoffman’s initial application for



                                           3
disability benefits for which she had been receiving benefits since 2002. The Plans

concluded that Hoffman had not been under a disability pursuant to the terms of

the plan and terminated her regular disability pension retroactively from January 1,

2005. The Plans consequently notified Hoffman that her disability pension

payments would cease effective August 1, 2015, and sought to recoup alleged

overpayment of benefits in the amount of $123,827.50 plus $8,457.72 interest. The

decision was upheld on administrative appeal, and Hoffman filed a second

complaint under ERISA challenging the retroactive termination of her disability

benefits. The district court granted the Plans’ motion for summary judgment and

entered judgment in their favor. Hoffman v. Screen Actors Guild Producers

Pension Plan et al., No. 2:16-cv-01530-R-AJW, ECF Nos. 45, 49.

      Reviewing de novo, Nolan v. Heald Coll., 551 F.3d 1148, 1150 (9th Cir.

2009), we conclude that the district court erred in failing to address all of

Hoffman’s alleged procedural defects, which should have been considered as

factors that tempered the court’s abuse of discretion review. See Abatie v. Alta

Health & Life Ins. Co., 458 F.3d 955, 968 (9th Cir. 2006) (en banc).

      Here, the Plans had discretionary authority to determine Hoffman’s

eligibility for benefits, and it is undisputed that the Plans’ denial of benefits is

therefore reviewed by the district court for abuse of discretion. See id. at 963.



                                            4
Where there are “procedural irregularities” in the claim review process, the abuse

of discretion standard that is applied by the district court will be “tempered” by

heightened skepticism. Id. at 959, 971. The district court must consider all the

circumstances in determining how much weight to assign to a conflict or

procedural irregularity. Id. at 968, 972 (“A procedural irregularity, like a conflict

of interest, is a matter to be weighed in deciding whether an administrator’s

decision was an abuse of discretion.” (citations omitted)). The nature and scope of

the alleged violations will significantly affect the standard of review applied by the

district court. See id. “[W]hen a plan administrator’s actions fall so far outside the

strictures of ERISA that it cannot be said that the administrator exercised the

discretion that ERISA and the ERISA plan grant, no deference is warranted.” Id.

Alternatively, “[w]hen an administrator can show that it has engaged in an

ongoing, good faith exchange of information between the administrator and the

claimant, the court should give the administrator’s decision broad deference

notwithstanding a minor irregularity.” Id. (internal quotation marks and citations

omitted).

      Hoffman advanced new evidence of multiple procedural irregularities in the

Plans’ review of her application for benefits, including the Plans’ failure to

consider all relevant evidence, such as tax records, and to make available evidence



                                           5
relevant to the Plans’ decision, such as the administrative record from prior

proceedings, audio recordings of meetings, and a medical report by the Plans’

medical director. Although the district court concluded that there was sufficient

evidence of a procedural conflict to merit a heightened abuse of discretion review,

it only referenced, without explanation, one of these alleged irregularities—the

Plans’ failure to disclose the administrative record to Plaintiff during the course of

the appeal. The district court went on to conclude, again without explanation, that

there was no evidence of malice, self-dealing, or a parsimonious claims-granting

history on the part of the Plans, and that its level of skepticism was, accordingly,

not extremely high. The findings of fact entered by the district court, which were

adopted verbatim from the Plans’ proposed findings and conclusions, similarly do

not include findings about any of the alleged procedural defects.1 The district

court’s failure to consider all of the alleged procedural defects before determining

the level of skepticism was error. See Abatie, 458 F.3d at 969.

       Moreover, because the alleged procedural defects involved disputed issues

of material fact, the district court’s grant of summary judgment was improper.

       1
           Although it is not error for the district court to state the undisputed facts in
the form of findings of fact and conclusions of law, see Fromberg, Inc. v. Gross
Mfg. Co., 328 F.2d 803, 806 (9th Cir. 1964), in reality, “there is no such thing
as . . . findings of fact, on a summary judgment motion.” Kearney v. Standard Ins.
Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (quoting Thompson v. Mahre, 110 F.3d
716, 719 (9th Cir. 1997)).

                                             6
Ordinarily, where abuse of discretion review is appropriate, the district court’s

review is limited to the administrative record and the traditional rules of summary

judgment do not apply. Nolan, 551 F.3d at 1154. In such cases “a motion for

summary judgment is merely the conduit to bring the legal question before the

district court . . . .” Id. (citing Bendixen v. Standard Ins. Co., 185 F.3d 939, 942

(9th Cir. 1999), abrogated on other grounds by Abatie, 458 F.3d at 963). Where, as

here, however, the claimant seeks to admit extrinsic evidence in order to prove the

existence of procedural irregularities, then the court may review the additional

evidence under the traditional summary judgment standards. Id. at 1150; see Fed.

R. Civ. P. 56(c). The new evidence is reviewed de novo in the light most favorable

to plaintiff. Nolan, 551 F.3d at 1150.

      The record here reveals numerous factual disputes not addressed by the

district court in either the summary judgment order or the court’s findings of fact.2

For example, although the Plans repeatedly requested that Hoffman provide all of

her tax records to the Board of Trustees, the Plans later claimed that they only

reviewed a “summary” of these records, and retroactively denied Hoffman’s

benefits in part on the basis that Hoffman was holding herself out to be available to

      2
        The adoption of the proposed findings of facts on summary judgment, in
and of itself, may be suggestive of factual disputes. See U. S. for Use & Benefit of
Austin v. W. Elec. Co., 337 F.2d 568, 572 (9th Cir. 1964); Trowler v. Phillips, 260
F.2d 924, 926 (9th Cir. 1958).

                                           7
work. Similarly, the Plans relied on a report from the Plans’ new medical director,

who reviewed the record and determined that Hoffman was not disabled. That

report was inadvertently omitted from the Rule 26, Fed. R. Civ. P., disclosure of

the Administrative Record, though it was later supplemented at an unspecified

date. Yet, there is nothing in the record showing that Hoffman received that report

prior to the decision. In contrast, Hoffman provided voluminous tax records to the

Plans to show she had not been paid for work since her disability began. The Plans

acknowledged receiving these, but did not include them in the administrative

record, suggesting that the Plans did not review them. Similarly, the Plans claimed

they did not record Hoffman’s hearing on appeal and denied Hoffman’s request to

provide any such recordings. However, the Plans later filed a motion for attorneys’

fees for 3.8 hours for drafting memorandum regarding duty to disclose recording at

trustees’ meetings. Finally, we note that the court’s findings of fact do not explain

the basis for the district court’s conclusion that there was no evidence of malice,

self-dealing, or a parsimonious claims-granting history on the part of the Plans.

      On remand, the district court must address these outstanding factual

questions, which will bear upon the degree of skepticism with which the district

judge reviews the Plans’ decision to deny Hoffman’s claim for benefits. Abatie,

458 F.3d at 959. To the extent there are factual disputes, the district court must



                                          8
resolve those through a bench trial under Rule 52(a), Fed. R. Civ. P., before

granting judgment on Hoffman’s claim for wrongful termination of benefits under

ERISA section 502, 29 U.S.C. § 1132(a)(l)(B). Nolan, 551 F.3d at 1154. Viewing

new evidence through the lens of a bench trial is not merely a matter of form; it

may lead the judge to a wholly different conclusion about the merits of the case.

See Kearney, 175 F.3d at 1095 (“The process of finding the facts ‘specially,’ as

that rule requires, sometimes leads a judge to a different conclusion from the one

he would reach on a more holistic approach.”).

      Because the district court erred in its denial of summary judgment on

Hoffman’s section 502 claim, the district court also erred in summarily denying

Hoffman’s claims that the Plans failed to provide full and fair review under ERISA

section 503, 29 U.S.C. § 1133(2). See Johnson v. Buckley, 356 F.3d 1067, 1077

(9th Cir. 2004) (“In order to challenge a benefit plan’s failure to comply with

ERISA’s disclosure requirements, the employees must ‘have a colorable claim that

(1) [they] will prevail in a suit for benefits, or that (2) eligibility requirements will

be fulfilled in the future.’”). We accordingly remand to the district court for further

proceedings consistent with this disposition.

      REVERSED and REMANDED.




                                            9
                                                                           FILED
Hoffman v. Screen Actors Guild Producers Pension Plan; et al.; No. 16-56663
                                                                            JAN 4 2019
BEA, Circuit Judge, dissenting:                                         MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

      This case requires us to determine whether the district court erred in granting

summary judgment to the Screen Actors Guild Producers Pension Plan (the “Plan”)

because it found the Plan did not abuse its discretion in denying Appellant Leslie

Hoffman’s disability benefits application. Because I think the district court properly

considered the evidence and correctly decided that the Plan did not abuse its

discretion, I respectfully dissent.

                                          I

      The Plan is a defined benefits plan governed by the Employee Retirement

Income Security Act (“ERISA”). ERISA seeks to protect employees by establishing

minimum standards for private pension and health plans, including requiring plans

to establish a grievance and appeals process for plan participants who apply to

receive benefits. ERISA also encourages private employers to fund employee

benefits plans by allowing employers to deduct their contributions from taxable

income and to interpret the terms of the benefits plans. Accordingly, ERISA cases

generate a peculiar situation, particularly with respect to how courts review plan

administrators’ decisions.

      Here, the Plan’s Board of Trustees (the “Board”) administers the Plan, which

gives the Board discretion to interpret the terms of the plan. Hoffman is a retired

                                          1
stunt actor and coordinator. Hoffman initially ceased working as a stunt actor and

coordinator in 2000. In 2003 and 2004, Hoffman was repeatedly hospitalized for

depression and, in 2004, Dr. Ruth Cassin opined that Hoffman was disabled due to

her depression.

      On February 20, 2004, Hoffman was awarded Social Security Disability

Benefits based on her depression. Hoffman then applied for a disability pension

from the Plan. The Plan’s in-house doctor, Dr. Shakman, approved her application

and she was granted a disability pension.

      In 2008, Hoffman sought to convert her disability pension into an

occupational disability pension, which would entitle her to health benefits not

available under the regular disability pension. To obtain an occupational pension,

Hoffman was required to show that her disability—that is, her depression—occurred

during the course of her employment. The Plan denied Hoffman’s request to convert

her disability pension into an occupational disability pension. Hoffman appealed the

Plan’s decision to the Benefits Committee, which affirmed the Plan’s denial of

benefits, again relying on Dr. Shakman.

      Hoffman sued the Plan, claiming it had violated ERISA by wrongfully

denying her benefits. The district court granted the Plan’s motion for summary

judgment, and Hoffman appealed to this Court (the “First Appeal”). On the First

Appeal, we reversed the district court’s grant of summary judgment and remanded

                                            2
with instructions to the district court to require the Plan to obtain a second medical

opinion to provide Hoffman with a full and fair review of her claim. Hoffman v.

Screen Actors Guild-Producers Pension Plan, 571 F. App’x 588, 591 (9th Cir.

2014). At that point, the case was remanded to the Plan for further proceedings.

      In 2015, during the remand, the Plan discovered what it believed to be

evidence that Hoffman was not actually disabled and had been working as a

stuntwoman and stunt coordinator after 2004. This evidence included the fact that

Hoffman received credits in a number of productions after 2004 and held herself out

as a working stuntwoman and coordinator on various websites and social media

platforms.

      The Plan’s Benefits Committee sent Hoffman’s file, which contained her

medical records, to three independent medical consultants—a board certified

psychologist, a board certified orthopedic surgeon, and a board certified neurologist.

The orthopedic surgeon and neurologist opined that Hoffman had never been

disabled and the psychologist opined that Hoffman was not currently disabled and

likely had not been disabled since late 2004.

      The Benefits Committee then conducted a review of Hoffman’s disability

pension and determined, based on the opinion of the medical consultants and

evidence that Hoffman had been holding herself out to work as a stunt coordinator

after 2004, that Hoffman was not totally disabled within the meaning of the plan and

                                          3
had not been totally disabled after 2004. The Benefits Committee terminated

Hoffman’s disability pension, retroactive to January 1, 2005.

      Hoffman filed an administrative appeal with the Plan. New members of the

Benefits Committee who were not involved in Hoffman’s original application heard

Hoffman’s appeal. Additionally, the Benefits Committee forwarded Hoffman’s file

to a new board certified psychologist, a new board certified orthopedic surgeon, and

a new board certified neurologist.      The orthopedic surgeon and psychologist

concluded that Hoffman was not disabled. The neurologist concluded that Hoffman

was totally disabled beginning in September 2012, but went on to state that she had

“no physical neurological restrictions or deficits” and “would be able to work in any

position that did not require [Hoffman] to engage in rapid word reading or other

speed processing.”

      Hoffman submitted medical evidence from a number of doctors to support her

claim of disability, including her treating physician.      Additionally, Hoffman

submitted a declaration stating that she had not been paid for work on the films she

received credits for; submitted evidence from former co-workers that working on

amateur films did not necessarily indicate an ability to work as a stunt coordinator




                                         4
on paid productions; and submitted her tax returns for the relevant time period,

which showed no income from the film industry other than residuals. 1

      The Benefits Committee reviewed the evidence in the administrative record,

including the new medical opinions regarding Hoffman’s status. In a three-page

decision, the Benefits Committee upheld the termination of Hoffman’s disability

pension, retroactive to January 1, 2005, based exclusively on the opinion of the

medical experts the Plan had retained. Hoffman filed a complaint against the Plan

in the Central District of California alleging that she had been wrongfully denied

benefits and asserting a claim under section 502(c) of ERISA, alleging that the Plan

had failed to provide her with documents she had requested. The district court

granted summary judgment to the Plan, and Hoffman appealed.

                                          II

      We review a district court’s decision to grant summary judgment and the

district court’s “application of the standard of review to decisions by fiduciaries in

ERISA cases” de novo. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962

(9th Cir. 2006) (en banc); Farr v. U.S. W. Commc’ns Inc., 151 F.3d 908, 913 (9th

Cir. 1998).



1
       We cannot confirm whether Hoffman’s tax returns demonstrate that she did
not receive income from her work on various film projects because the tax returns
are not included in the administrative record, but the Plan does not dispute
Hoffman’s account of the content of the tax returns.
                                          5
      As a default, the district court reviews decisions to deny benefits under an

ERISA plan de novo. Abatie, 458 F.3d at 963. 2 However, when an ERISA plan

contains a provision that gives the trustees discretion to interpret the terms of the

plan, district courts review decisions to deny disability benefits applications for an

abuse of discretion. Id. Here, the parties and the district court agree that the Plan’s

organizing documents give the Board discretion to interpret the terms of the Plan,

and thus the district court was correct to apply an abuse of discretion standard.

      As in other contexts, an abuse of discretion with respect to a factual matter

occurs when the court is “‘left with a definite and firm conviction that a mistake has

been committed,’ and [the court] may not merely substitute [its] view for that of the

fact finder. . . . [The court] consider[s] whether application of a correct legal

standard was ‘(1) illogical, (2) implausible, or (3) without support in inferences that


2
       In Abatie, this court, sitting en banc, reconsidered its approach to ERISA
cases when a plan administrator with discretion to interpret the terms of a benefits
plan denies benefits and conflicts of interest or procedural irregularities are
involved. 458 F.3d at 959. There, the plaintiff filed suit in district court under
ERISA, arguing that the plan administrator wrongfully denied her life insurance
benefits. Id. Following a bench trial, the district court upheld the plan
administrator’s decision. Id. at 959, 961. On appeal, the plaintiff questioned the
standard of review the district court applied. Id. at 959. This court held, in
relevant part, that procedural irregularities that occur during a plan administrator’s
review must “be weighed in deciding whether an administrator’s decision was an
abuse of discretion,” and the court may consider “additional evidence when the
irregularities have prevented full development of the administrative record.” Id. at
972-73. Finding that the district court did not consider new evidence outside the
administrative record, the court reversed and remanded for further proceedings. Id.
at 974.
                                            6
may be drawn from the facts in the record.’” Salomaa v. Honda Long Term

Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011) (quoting United States v. Hinkson,

585 F.3d 1247, 1263 (9th Cir. 2009) (en banc) and applying the Hinkson standard to

an ERISA case). But this court has clarified that the district court’s abuse of

discretion review in an ERISA case should be informed by consideration of any

conflicts of interest or procedural irregularities present in the case. Abatie, 458 F.3d

at 967 (9th Cir. 2006). Specifically, the district court should consider any of the plan

administrator’s procedural errors or irregularities as a factor in determining whether

it abused its discretion. Id. at 972.

      This court has repeatedly held “that where the abuse of discretion standard

applies in an ERISA benefits denial case, ‘a motion for summary judgment is merely

the conduit to bring the legal question before the district court and the usual tests of

summary judgment, such as whether a genuine dispute of material fact exists, do not

apply.’”    Nolan v. Heald Coll., 551 F.3d 1148, 1154 (9th Cir. 2009)

(quoting Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999)). 3 But the


3
       In Nolan, Jeanne Nolan filed an ERISA action in the district court after her
disability benefits plan denied her application for benefits. 551 F.3d at 1150. The
district court granted summary judgment to the benefits plan, and held that
although the benefits plan operated with a conflict of interest, Abatie required the
court to consider new evidence presented to the district court under an abuse of
discretion standard. Id. at 1152. But this court reversed and remanded the case to
the district court, holding, in relevant part, that the traditional summary judgment
rules do apply to evidence presented outside the record in ERISA cases. Id. at
1155.
                                            7
traditional summary judgment standard does apply when the district court is

considering evidence outside the administrative record to determine whether the plan

administrators had conflicts of interest or committed procedural irregularities.

Nolan, 551 F.3d at 1154-55. This abuse of discretion standard that considers

conflicts of interest and procedural irregularities creates a complicated two-stage

inquiry at summary judgment. 4

      First, we must determine, viewing the evidence in the light most favorable to

Hoffman, whether there was a genuine issue of material fact as to whether the abuse

of discretion standard should factor in procedural irregularities committed during the

Plan’s review. Nolan, 551 F.3d at 1154. Next, without viewing the evidence in the

light most favorable to Hoffman, we must determine if the Plan abused its discretion

(under a potentially more skeptical lens) when it denied Hoffman benefits. Id.

                                          III

      The district court correctly applied this complex inquiry at every stage. The

majority disagrees, and this is where our analyses diverge.

      A. The district court correctly tempered the abuse of discretion standard to
         account for the Plan’s procedural irregularities

4
      The parties agree that there is no structural conflict of interest in this case.
Hoffman asserts that there is a conflict of interest because the Plan’s lawyers, from
Fox Rothschild, represented the Plan in prior litigation and have continued to
advise the Plan regarding litigation with Hoffman ever since. But Hoffman
provides no evidence that the lawyers from Fox Rothschild were involved in the
decision to deny her benefits or to deny her appeal. As a result, her argument in
favor of finding a conflict of interest lacks support from the record.
                                            8
      Under Nolan, we must first determine whether Hoffman created a genuine

issue of material fact as to whether irregularities during the proceedings before the

plan should be factored into the abuse of discretion standard. As noted above, we

have held that “procedural irregularities” in the ERISA proceedings at the plan level

should be weighed as part of the abuse of discretion standard. Abatie, 458 F.3d at

972. If an “administrator engages in wholesale and flagrant violations of the

procedural requirements of ERISA,” and the administrator’s actions “fall so far

outside the strictures of ERISA that it cannot be said that the administrator exercised

the discretion that ERISA and the ERISA plan grant, no deference is warranted.” Id.

at 971-72. However, “[w]hen an administrator can show that it has engaged in an

ongoing, good faith exchange of information between the administrator and the

claimant, the court should give the administrator's decision broad deference

notwithstanding a minor irregularity.” Id. at 972 (quoting Jebian v. Hewlett-Packard

Co. Employee Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1107 (9th Cir.

2003)).

      Here, as the district court noted, Hoffman adduced evidence that, when

viewed favorably to her, established a triable issue of fact that the Plan failed to

provide her with complete copies of the administrative record in a timely fashion

during the appeals process, most notably the opinion of its new in-house doctor. On

that basis, the district court determined that there was a genuine issue of material
                                          9
fact as to whether there were procedural irregularities and proceeded to apply a

“more skeptical” version of the abuse of discretion test to the Plan’s motion for

summary judgment.

       The majority recognizes that the district court correctly held that there was a

genuine issue of material fact as to whether there were procedural irregularities

during the proceedings before the Plan that should be weighed in determining

whether the Plan abused its discretion. The majority holds, however, that because

the district court did not specifically mention each piece of evidence Hoffman

presented to prove the claimed procedural irregularities in its decision granting

summary judgment to the Plan, it must not have considered that evidence. In so

doing, the majority imposes a peculiar and unnecessary burden on the district court

to name specifically each claimed procedural irregularity. Our court has never

required this. 5

       The majority also neglects to mention that the district court went on to find

that, viewing all evidence in the light most favorable to Hoffman: (1) the

irregularities in the Plan proceedings were relatively minor, (2) the Plan



5
       The majority cites to Abatie, 458 F.3d at 959, to support its holding that
“[t]he district court’s failure to consider all of the alleged procedural defects before
determining the level of skepticism was error.” However, the court in Abatie
reversed and remanded to the district court to consider the plaintiff’s outside
evidence because it did not consider any of the outside evidence the plaintiff
presented to the district court. Id.
                                            10
demonstrated it had engaged in a good-faith exchange of information, and (3) the

Plan’s decision was still entitled to substantial deference under Abatie. 6 The district

court’s decision in this respect was correct.

      Many of the irregularities identified by the majority and by Hoffman concern

documents that were not produced by the Plan in a timely manner or evidence that

the Benefits Committee allegedly failed to consider. To begin with, most of

Hoffman’s complaints regarding the production of documents and other procedural



6
       The majority compounds its error by incorrectly stating that the district court
adopted the Plan’s proposed findings of facts and conclusions of law “verbatim.”
To the contrary, the district court granted the Plan’s motion for summary judgment
on October 12, 2016 in a detailed, well-reasoned order that explained its decision in
the court’s own words.
       The district court then ordered the prevailing party, the Plan, to submit
formalized findings of fact and conclusions of law that echoed the district court’s
own order to be filed in conjunction with the judgment. Thus, the findings of fact
and conclusions of law were superfluous to the district court’s decision, which it had
already articulated in its order granting summary judgment. The Plan submitted the
requested findings of fact and conclusions of law on October 26, 2016. Hoffman
did not object to the findings of fact and conclusions of law submitted by the Plan.
The district court adopted the findings of fact and conclusions of law submitted by
the Plan on November 2, 2016 at the same time that it entered judgment in favor of
the Plan.
       Nothing about the district court’s process indicates it was improperly
influenced by the views of a party. The district court articulated the basis of its
decision independently, then merely requested that the prevailing party ease the
district court’s workload by formalizing the decision into findings of fact and
conclusions of law that could be filed concurrently with the judgment. If Hoffman
thought this procedure was improper, she had nearly a month to object. She did
not. The majority fails to explain why the district court’s conduct in this case
should subject its decision to any additional scrutiny or why Hoffman did not
waive the issue by failing to object below.
                                           11
irregularities concern the failure of the Plan to produce documents during the

discovery process in the district court. For instance, Hoffman asserts that various

draft medical reports should have been produced in response to her document

requests and points to discrepancies in the Plan’s interrogatory responses and

requests for attorneys’ fees. Of course, the proceedings in the district court took

place after the Plan proceedings.       These arguments are not relevant to the

determination of whether there were procedural irregularities during the proceedings

before the Plan. Additionally, if Hoffman felt that the Plan had violated the

discovery rules, she had a remedy: seek relief from the district court. But Hoffman

fails even to argue that the Plan failed to comply with any order of the district court

regarding discovery in this matter. 7

      When Hoffman’s contentions regarding discovery are put aside, two main

issues remain. First, Hoffman contends that the Plan did not produce the opinion of

its new medical director before the administrative appeal hearing. The Plan appears

to concede that the medical report became detached from the rest of the

administrative record and was not produced to Hoffman. This is a procedural

irregularity, but an inadvertent nondisclosure does not implicate the Plan’s attempt


7
      Hoffman goes so far as to characterize the district court’s decision to rule on
the Plan’s summary judgment motion, rather than conduct a full bench trial, as a
“procedural irregularity.” Clearly, the district court’s decisions regarding the
management of its docket cannot demonstrate that the proceedings before the Plan
deserve additional scrutiny.
                                       12
to engage in a good-faith exchange of information. Further, Hoffman does not

explain how this non-disclosure prejudiced her in any way on her administrative

appeal. Remember: the new doctor’s report found her not to be disabled.

      Second, Hoffman contends that the Plan never considered her tax returns,

which she submitted for the Plan’s consideration during the administrative appeal

process, but were not part of the administrative record.          These tax returns

demonstrate that Hoffman did not receive income from her work on various film

projects during the time she alleges she was disabled. Again, this irregularity

appears to have merit, but does not implicate the Plan’s good-faith exchange of

information. This is particularly true because the Benefits Committee’s decision

regarding Hoffman’s administrative appeal did not rely, in any way, on Hoffman’s

alleged employment during the time she claimed to be disabled. Instead, the Benefits

Committee confined its decision to medical opinions as to Hoffman’s physical

condition, which have nothing to do with Hoffman’s tax returns.

      Simply put, the inadvertent failure to produce one document that hurts

Hoffman’s case and the failure to consider documents that had no bearing on the

Plan’s ultimate decision are procedural irregularities, but do not support applying a

high level of scrutiny to the Plan’s decision. As a result, even were I to apply a

slightly more skeptical form of the abuse of discretion test to the Plan’s decision,




                                         13
bearing the procedural irregularities in mind, I would still afford the Plan broad

deference. See Abatie, 458 F.3d at 972.

      B. The Plan did not abuse its discretion by relying on the medical opinions it
         had solicited

      When the Plan’s decision is viewed with the proper level of deference, it

becomes clear that the Plan did not abuse its discretion when it terminated Hoffman’s

benefits. A detailed review of the medical evidence before the Plan demonstrates

that the Plan chose between conflicting evidence and its decision was not “illogical,

implausible, or without support in inferences that may be drawn from the record.”

Hinkson, 585 F.3d at 1263.

      As discussed above, during the review process, the Plan sent Hoffman’s

medical records to a medical consulting company.          The consulting company

obtained the opinion of a board certified orthopedic surgeon, who concluded that

Hoffman was not disabled at any point from an orthopedic perspective. 8 The

consulting company also obtained the opinion of a board certified psychologist, who

concluded that Hoffman was not presently disabled and likely had not been disabled

since late 2004. Finally, the consulting company obtained the opinion of a board


8
       Hoffman argues insistently that the Plan abused its discretion in relying on
these opinions because they were reproduced in reports generated by the consulting
companies and, thus, were hearsay. Hoffman cites no authority for the proposition
that the rules of evidence apply to ERISA proceedings at the plan level. Hoffman
also cites no authority for the proposition that a plan abuses its discretion when it
relies on hearsay. As a result, these arguments are meritless.
                                          14
certified neurologist (the “First Plan Neurologist”), who concluded that Hoffman

was not disabled at any time from a neurological perspective.

      After Hoffman appealed, the Plan sent her medical records, including new

documentation that Hoffman provided, to a new consulting company for an

additional review. The new consulting company obtained the opinion of a board

certified orthopedic surgeon, who opined that Hoffman was not disabled from an

orthopedic perspective. The new consulting company also obtained the opinion of

a board certified psychologist, who concluded that Hoffman was not disabled from

a psychological perspective.

      Finally, the new consulting company obtained the opinion of a board licensed

neurologist (the “Second Plan Neurologist”). The Second Plan Neurologist opined

that Hoffman was disabled. However, the Second Plan Neurologist went on to opine

that Hoffman had “no physical neurological restrictions or deficits” and “would be

able to work in any position that did not require [Hoffman] to engage in rapid word

reading or other speed processing” and that “there are no mentation restrictions as it

pertains to [Hoffman’s] capacity to work.”

      Because the Second Plan Neurologist’s opinion was inconsistent with the First

Plan Neurologist’s opinion, and because the Second Plan Neurologist’s opinion was

arguably internally inconsistent, the Plan sent Hoffman’s updated medical records

to the First Plan Neurologist to see if the new information changed his opinion. The

                                         15
First Plan Neurologist reiterated his opinion that Hoffman was not disabled from a

neurological perspective.9

      Hoffman was also permitted to submit medical evidence to the Plan. Hoffman

submitted letters and reports generated during the relevant time period from no less

than eleven medical professionals.10 Of those letters and reports, only four opine

that Hoffman was disabled.11 Two of those letters were from psychologists, who

opined that Hoffman was disabled in 2015. Another set of letters came from

Hoffman’s treating physician, who opined that Hoffman had been disabled for the

entire relevant period of time. Finally, Hoffman directs the Court to the opinion of

the Plan’s former in-house doctor, who opined, in conjunction with Hoffman’s 2008

application to convert her disability pension into an occupational disability pension,



9
       Hoffman contends that asking the First Plan Neurologist to opine again
violated ERISA because, as we held in the First Appeal, the Plan was required to
obtain a new medical opinion during the administrative appeal. But Hoffman’s
argument contorts ERISA’s requirements and this Court’s ruling. Although the Plan
was required to obtain a second medical opinion from an unrelated doctor on appeal,
nothing in ERISA prohibits the Plan from also relying on the previous doctor’s
opinion, provided that the Plan also considers the opinion of a new, qualified medical
professional. See 29 C.F.R. § 2560.503–1(h)(3)(ii); Lafleur v. Louisiana Health
Serv. & Indem. Co., 563 F.3d 148, 157 (5th Cir. 2009).
10
       Hoffman also directs the Court to medical opinions from 2002-2004.
Although these opinions relate to whether Hoffman was disabled at some point in
time, they are not as helpful when determining whether the plan abused its discretion
in terminating her pension as of January 1, 2005.
11
       The balance of the reports and letters submitted by Hoffman describe her
symptoms, test results, and medical history, but provide no opinion as to whether
Hoffman is disabled or able to work.
                                          16
that Hoffman was disabled under the Plan but had not demonstrated that her

disability was a result of her work. 12

      Thus, there was conflicting medical evidence before the Plan when it made its

final determination regarding Hoffman’s benefits. The Plan based its decision

regarding Hoffman’s appeal exclusively on the medical evidence and did not

reference her film work. The Plan’s choice to credit the opinions of the doctors the

Plan retained to evaluate Hoffman’s claim was plainly not an abuse of discretion. In

fact, “[i]n the ERISA context, even decisions directly contrary to evidence in the

record do not necessarily amount to an abuse of discretion.” Taft v. Equitable Life

Assur. Soc., 9 F.3d 1469, 1473 (9th Cir. 1993), abrogated on other grounds by

Abatie, 458 F.3d at 973.13

      Ultimately, the plan was faced with conflicting medical evidence. It had to

choose between two competing views, both supported by evidence in the record.

Under such circumstances, the Plan’s decision to credit the findings of the experts it

retained was, almost by definition, not “illogical, implausible, or without support in


12
       This determination was the subject of the First Appeal.
13
       Hoffman’s suggestion that the Plan should have credited the opinions of her
treating physician over the opinions of non-treating physicians is contrary to
Supreme Court precedent. The Supreme Court has clearly held that “courts have
no warrant to require administrators automatically to accord special weight to the
opinions of a claimant’s physician; nor may courts impose on plan administrators a
discrete burden of explanation when they credit reliable evidence that conflicts
with a treating physician’s evaluation.” Black & Decker Disability Plan v. Nord,
538 U.S. 822, 834 (2003).
                                         17
inferences that may be drawn from the record.” Hinkson, 585 F.3d at 1263. As a

result, the district court was correct to grant the Plan summary judgment. 14

                                          IV

      Because our precedent requires us to defer to the Plan’s judgment with respect

to its benefits decisions, and because the Plan plainly did not abuse its discretion in

relying on medical evidence in the record, I would AFFIRM the district court in full.




14
       The district court also granted the Plan summary judgment on Hoffman’s
section 502(c) claim, which alleged that the Plan failed to provide her with records
from her case in a timely fashion. To sustain a claim under section 502(c), the
plaintiff must have a colorable underlying claim for wrongful denial of benefits.
Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). Here, as discussed above,
Hoffman does not have a colorable claim for wrongful denial of benefits because the
Plan did not abuse its discretion. Consequently, Hoffman’s section 502(c) claim
also fails.
                                         18
