                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SONIA CRUZ-BACA,                                No.    15-56921

                Plaintiff-Appellant,            D.C. No.
                                                2:14-cv-07887-JFW-MAN
 v.

EDISON INTERNATIONAL LONG                       MEMORANDUM*
TERM DISABILITY PLAN, an ERISA
plan,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    John F. Walter, District Judge, Presiding

                        Argued and Submitted June 6, 2017
                              Pasadena, California

Before: REINHARDT and KOZINSKI, Circuit Judges, and BERG,** District
Judge.

      1. In its termination letter to Cruz-Baca, the Plan acknowledged it was

aware of her award of social security disability insurance (SSDI) benefits. Indeed,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
the Plan previously required Cruz-Baca to apply for such benefits so that the Plan

might reduce its own payment obligation to Cruz-Baca. Failing to comply with its

obligation under Ninth Circuit and Supreme Court precedent, the Plan did not

meaningfully review Cruz-Baca’s SSDI award. ERISA plan administrators are not

bound by prior Social Security Administration (SSA) determinations. See Montour

v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 635 (9th Cir. 2009); see also

Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 679 (9th Cir. 2011)

(“Social Security disability awards do not bind plan administrators, but . . . are

evidence of disability”). However, disregarding or failing to “grapple” with an

SSDI award “raises questions about whether an adverse benefits determination was

‘the product of a principled and deliberative reasoning process.’” Montour, 588

F.3d at 635 (quoting Glen v. MetLife, 461 F.3d 660, 674 (6th Cir. 2008)); see also

Glen, 461 F.3d at 671 n.3 (noting the distinction between mentioning a contrary

determination and discussing it). Similarly, “not distinguishing the SSA’s contrary

conclusion may indicate a failure to consider relevant evidence.” Montour, 588

F.3d at 635 (citing Metropolitan Life Ins. Co. v. Glenn, 554 U.S. 105, 123-24

(2008) (Roberts, C.J., concurring in part and concurring in the judgment). No

principled reason is offered for the Plan’s failure to review Cruz-Baca’s SSDI

award, which is reliable evidence of her disability. This constituted an abuse of

discretion.


                                          2                                     15-56921
      2. It was arbitrary and capricious for Dr. Ramachandran Srinivasan to fail to

discuss and consider Cruz-Baca’s subjective complaints of pain as evidence of her

chronic pain syndrome. This is particularly true given that Dr. Srinivasan observed

Cruz-Baca exhibiting pain symptoms during the Independent Medical Evaluation

(IME), and given that he noted her long history of chronic pain. This Court has

previously held that “conditioning an award on the existence of evidence that

cannot exist is arbitrary and capricious.” Salomaa, 642 F.3d at 678. “Many

medical conditions depend for their diagnosis on patient reports of pain or other

symptoms, and some cannot be objectively established,” but “a disability insurer

[cannot] condition coverage on proof by objective indicators ... where the

condition is recognized yet no such proof is possible.” Id. Pain is an inherently

subjective condition, and it is unclear what objective evidence the Plan was

looking for in order to establish that Cruz-Baca’s pain prevented her from working.

Neither the Plan nor Dr. Srinivasan offered any explanation as to why Cruz-Baca’s

history of pain and pain-related treatment were insufficient to support a finding of

disability. Under such circumstances, to disregard Cruz-Baca’s subjective

complaints of continuing and pervasive pain was arbitrary and capricious.

      3. In 2012, the Plan hired Dr. Saleem Waraich to perform an IME of Cruz-

Baca. Dr. Waraich concluded that Cruz-Baca had degenerative disc disease

requiring sit/stand restrictions that precluded her from performing sedentary work.


                                          3                                    15-56921
Regarding whether a claimant can perform sedentary work, we have a “common

sense,” bright line rule: “an employee who cannot sit for more than four hours in

an eight-hour workday cannot perform ‘sedentary’ work that requires sitting ‘most

of the time.’” Armani v. Northwestern Mut. Life Ins. Co., 840 F.3d 1159, 1163 (9th

Cir. 2016). In 2014, however, the Plan hired Dr. Srinivasan to perform another

IME of Cruz-Baca. Making no reference to Dr. Waraich’s 2012 IME, Dr.

Srinivasan did not diagnose her with degenerative disc disease, did not find that

she had any sit/stand restrictions and concluded that she could perform sedentary

work. Dr. Srinivasan either ignored Dr. Waraich’s IME or the Plan failed to

provide it to him. During the administrative appeal, although the three reviewing

doctors indicated that they were aware of Dr. Waraich’s IME, they relied on Dr.

Srinivasan’s IME in concluding that Cruz-Baca could perform sedentary work,

despite the conclusions by two of these doctors that she had degenerative disc

disease. Dr. Waraich’s 2012 IME was reliable medical evidence that Cruz-Baca

could not perform a sedentary job. The Plan’s failure to credit or meaningfully

distinguish this evidence indicates that its decision to terminate Cruz-Baca’s

benefits was not the product of a principled and deliberative reasoning process.

The Plan’s failure to adequately consider and credit Dr. Waraich’s IME – which

offered reliable evidence that Cruz-Baca cannot perform sedentary work –




                                          4                                      15-56921
demonstrated an abuse of discretion.

      Appellee’s motion for judicial notice is granted.

      REVERSED and REMANDED.




                                         5                15-56921
