                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 19 2010

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




                            FOR THE NINTH CIRCUIT



CONSTANCE FINLEY,                                No. 09-17778

              Plaintiff - Appellee,              D.C. No. 4:06-cv-06247-CW

  v.
                                                 MEMORANDUM *
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY; THE
BOSTON FINANCIAL GROUP LONG-
TERM DISABILITY PLAN,

              Defendants - Appellants,

  and

DEMPSEY INVESTIGATIONS, INC.,

              Defendant.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                      Argued and Submitted October 7, 2010
                            San Francisco, California

Before: THOMPSON, SILVERMAN and McKEOWN, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Hartford Life & Accident Insurance Company appeals from the district

court’s judgment in favor of Constance Finley after a bench trial. We have

jurisdiction under 28 U.S.C. § 1291 and we reverse.

      Finley brought an action against Hartford under the Employee Retirement

Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B), for terminating her

benefits under Boston Financial’s Group Long-Term Disability Plan. Finley

claimed to have constant disabling pain in her hands, arms, shoulders, mid to upper

back, and neck that increased with mild physical activities, such as normal

household chores, shopping, and holding a telephone. Video of Finley, however,

showed her vigorously pulling weeds in kneeling and squatting positions, lifting

and carrying objects using both her arms, raising her arms over her head to point

and carry objects, and using tools to scrape, push, and pull without any apparent

difficulty. The following day, Finley left her house to walk her dogs with a purse

strapped over her shoulder and the dogs’ leashes in her hand. Finley drove to a

walking trail, walked the dogs for over an hour, and then brushed them down

before driving home.

      After having Finley’s medical history reviewed by multiple doctors,

Hartford concluded that she was capable of performing sedentary work and



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canceled her disability benefits. On review of Hartford’s decision, the district

court found evidence of bias in the reviewing physicians’ reliance on the

surveillance video, certain inferences that the reviewing physicians drew in favor

of Hartford, the fact that none of Hartford’s physicians physically evaluated Finley,

and that Hartford had rendered a biased decision in Montour v. Hartford Life &

Accident Insurance Co., 588 F.3d 623, 629 (9th Cir. 2009). It thus “accorded

significant weight” to the conflict of interest factor and held that Hartford had

abused its discretion.

      “We review ‘a district court’s choice and application of the appropriate

standard for reviewing benefits decisions by an ERISA plan administrator’ de

novo.” Id. (quoting Sznewajs v. U.S. Bancorp Amended & Restated Supplemental

Benefits Plan, 572 F.3d 727, 732 (9th Cir. 2009)). Where, as here, a plan grants

the plan administrator discretionary authority to determine eligibility for benefits,

the panel reviews “the administrator’s decision for abuse of discretion.” Id.

“[T]he extent to which a conflict of interest appears to have motivated an

administrator’s decision is one among potentially many relevant factors that must

be considered” in determining whether the administrator abused its discretion. Id.

at 630. The reviewing court must “adjust[] the weight given [the conflict of

interest] factor based on the degree to which the conflict appears improperly to


                                          -3-
have influenced a plan administrator’s decision.” Id. at 631 (citing Abatie v. Alta

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

      The district court erred in assigning controlling weight to the conflict of

interest factor because, unlike in Montour, the evidence in this case does not

indicate that the conflict “tainted the entire administrative decisionmaking

process.” Id. Hartford did not distort the content of the video or overemphasize its

importance when requesting medical reviews. Nor did Hartford’s doctors

themselves mischaracterize Finley’s activities or rely on the videos to the exclusion

of all other evidence. The district court thought that the doctors relied too heavily

on the videos, but Hartford provided the reviewing physicians guidance to consider

the videos, directing the physicians not to rely too heavily (or too little) on them.

These instructions were an appropriate effort to reduce bias and consider all

available evidence.

      This does not mean that Hartford’s decision was entitled to unmitigated

deference. The district court should have reviewed Hartford’s termination decision

with a “moderate degree of skepticism,” as it originally concluded.

      Viewing the medical and documentary evidence underlying Hartford’s

decision with a moderate degree of skepticism, Hartford did not abuse its

discretion. Finley’s primary complaint was of disabling pain in her hands, arms,


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shoulders, neck, and mid to upper back. Finley claims her pain is caused by a

rheumatological condition called ankylosing spondylitis. Accepting that Finley

has a rheumatological condition, the functional limitations imposed by that

condition depends upon the degree of pain that she experiences with activity.

      It was not an abuse of discretion for Hartford to conclude that Finley lacked

credibility and therefore to discount the value of her self-reported pain incidence,

the heart of her claim and her doctor’s assessments of her health, and place more

weight on the surveillance video. There was sufficient objective evidence that

Finley’s condition did not cause pain rising to the disabling level. See id. at 635

(citing Orn v. Astrue, 495 F.3d 625, 637-38 (9th Cir. 2007)). As the district court

stated in its first order on the merits, the videos show Finley “performing vigorous

yard work requiring the use of her arms in a way that far exceeded her reported

abilities.” Hartford’s physicians watched the videos and they all concluded that

her activities evidenced an ability to work at a level greater than she admitted.

They also agreed that the activities she performed were too strenuous to simply

have been the result of a temporary improvement in her condition.

      In contrast, Finley’s physicians did not adequately explain how her activities

in the videos were consistent with their conclusion that she could not work. They

explained that mild physical activity helped to alleviate Finley’s symptoms, but


                                          -5-
that explanation contradicted Finley’s own description of her pain, which she

repeatedly said increased with even mild physical activity. Moreover, Finley’s

rheumatologist provided no individualized basis for his conclusion that she could

not work, relying exclusively on his diagnosis of ankylosing spondylitis to reach

that conclusion.

       Again, as the district court originally recognized, “when considered together

with Plaintiff’s self-reported limitations, the video severely damages [Finley’s]

credibility.” Immediately before Finley saw the video, she signed a statement

attesting that she had been unable to perform even mild physical activity for the

past six months. After seeing the video, Finley gave several contradictory

explanations for her activities. First she said that she was in severe pain while

performing the activities, but then later said that she was able to do them because

she was in a period of feeling better. She also stated that it took her two weeks to

recover from the gardening, despite the fact that she walked her dogs for over an

hour and brushed them down the next day.

      Given Finley’s lack of credibility and her doctors’ unsupported assertions

that she could not work, it was not unreasonable for Hartford to disbelieve Finley’s

claim that any use of her upper extremities caused her disabling pain. Hartford did




                                          -6-
not abuse its discretion in ultimately concluding that Finley is capable of sedentary

work and terminating her benefits.

      REVERSED and REMANDED for the district court to enter judgment in

favor of Hartford.




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