                                                                           FILED
                                                                            DEC 16 2009

                                                                        MOLLY C. DWYER, CLERK
                            NOT FOR PUBLICATION                          U.S. COURT OF APPEALS



                     UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT




LYDIA WINZ-BYONE,                              No. 08-55638

             Plaintiff - Appellant,            D.C. No. 5:07-cv-00238-VAP-OP

      v.                                       MEMORANDUM*

METROPOLITAN LIFE INSURANCE
COMPANY; PARK WATER
COMPANY LONG TERM
DISABILITY PLAN,

             Defendants - Appellees.



                     Appeal from United States District Court
                            Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                       Argued and Submitted October 8, 2009
                               Pasadena, California




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: W. FLETCHER and CLIFTON, Circuit Judges, and SINGLETON,**
Senior United States District Judge.

      Lydia Winz-Byone (“Winz-Byone”) appeals from a decision of the district

court dismissing her action against Metropolitan Life Insurance Company

(“MetLife”) and the Park Water Company Long Term Disability Plan (“LTD

Plan”). Specifically, Winz-Byone alleged that MetLife and the LTD Plan

wrongfully terminated her long-term disability payments under the LTD Plan in

violation of the Employee Retirement Security Act (“ERISA”). The matter was

brought before the district court for decision on the motion of MetLife and the

LTD Plan for summary judgment and the cross-motion of Winz-Byone for

summary judgment. Also before the district court was a motion by Winz-Byone to

augment the record. The district court granted MetLife and the LTD Plan’s motion

for summary judgment and denied Winz-Byone’s motions.

      The district court had jurisdiction under 28 U.S.C. § 1331 and 29 U.S.C. §§

1001 and 1132(e)(1). This Court has jurisdiction under 28 U.S.C. § 1291.

      “This appeal involves two different standards of review: one applying to our

review of the district court’s decision, and the other concerning the standard that

applies to court review of the ERISA plan administrator’s decision.” Sznewajs v.


      **
         The Honorable James K. Singleton, Senior United States District Judge for
the District of Alaska, sitting by designation.
                                          2
U.S. Bancorp Amended and Restated Supplemental Benefits Plan, 572 F.3d 727,

732 (9th Cir. 2009).

      A. Review of District Court.

      “[W]e review de novo a district court’s decision to grant or deny summary

judgment. We also review de novo a district court’s ‘choice and application’ of the

appropriate standard for reviewing benefits decisions by an ERISA plan

administrator.” Id. (internal citation omitted).

      B. Review of Plan Administrator’s Decision.

      When a plan grants the plan administrator discretionary authority to construe

the plan’s terms, the appropriate standard of review is for abuse of discretion.

Nolan v. Heald College, 551 F.3d 1148, 1153 (9th Cir. 2009). Any conflict of

interest on the part of the plan administrator is included as a factor to be taken into

account in deciding whether the discretion has been abused. See Metropolitan Life

Ins. Co. v. Glenn, 554 U.S. ___, 128 S. Ct. 2343, 2346, 2348 (2008) (“Metlife”);

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Saffon v. Wells

Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 867-68 (9th Cir. 2008). A

conflict of interest commonly arises when, as in this case, a plan administrator

serves a dual role of both determining employee eligibility for benefits and paying

those benefits out of its own pocket. Metlife, 128 S. Ct. at 2346.


                                           3
      Because the plan involved in this case assigns discretionary authority to the

administrator, the informed abuse of discretion standard applies. In this case it is

undisputed that MetLife served a dual role of both determining Winz-Byone’s

eligibility for benefits and paying the benefits.

      Judicial review of the decision of an ERISA plan administrator is determined

on the administrative record; thus, the district court may not hear additional

evidence not presented to the plan administrator. McKenzie v. General Telephone

Co. of Cal., 41 F.3d 1310, 1316 (9th Cir. 1994) (error for a district court to hear

additional evidence not presented to the plan administrator); Taft v. Equitable Life

Assur. Soc., 9 F.3d 1469, 1472 (9th Cir. 1993) (same).

      A controlling issue in this case is whether Winz-Byone’s diagnosed

disability falls within the exclusion provision for neuromusculoskeletal and soft

tissue disorders. As presented to MetLife, the key to this case lies in Dr. Salick’s

May 24, 2006, letter submitted with Winz-Byone’s administrative appeal and

relied upon by the district court:

      According to your definition of “neuromusculoskeletal and soft tissue
      disorder”, [sic] which in this case, is a reflex sympathetic dystrophy of
      both upper extremities; right much worse that left. This reflex
      sympathetic dystrophy is sometimes called a regional pain disorder.
      It is a disease of the sympathetic nervous system, which causes
      extreme pain and trophic changes in those affected limbs.




                                            4
The balance of Dr. Salick’s letter addresses the degree of Winz-Byone’s disability,

i.e., that she is totally disabled, which was not at issue.

      There is nothing in the quoted portion of the letter that indicates Dr. Salick

does not agree that the term “neuromusculoskeletal and soft tissue disorder”

includes reflex sympathetic dystrophy. Indeed, as the district court noted, although

it lacks grammatical consistency, it does suggest that reflex sympathetic dystrophy

is a neuromusculoskeletal and soft tissue disorder. Even if on de novo review we

apply a somewhat higher degree of skepticism than did the district court, it cannot

be said on the administrative record that MetLife, as plan administrator, abused its

discretion in determining that the 24-month limitation period applied to Winz-

Byone. MetLife’s two reviewing physicians concluded that it did, and Dr. Salick’s

support for the opposite view was ambiguous, at best.

      Because of our conclusion that MetLife permissibly concluded that reflex

sympathetic dystrophy was not covered by the policy, we need not address other

issues in the case.

      AFFIRMED.




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