United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's FRCP Rule 52 Motion for Judgment
on the Pleadings and Administrative Record. ECF No. 18. For
the reasons stated below, the Court grants Plaintiff's
Motion and enters judgment in favor of Plaintiff.
filed the Complaint on October 12, 2017. ECF No. 1. Plaintiff
seeks declaratory and injunctive relief and disability
benefits pursuant to an alleged wrongful termination of
benefits under the Employee Retirement Income Security Act of
1974, 29 U.S.C. § 1001 et seq.
(“ERISA”). Defendant filed its answer on November
17, 2017. ECF No. 5.
Court entered a scheduling order on December 21, 2017,
requiring Defendant to disclose a copy of the ERISA
administrative record by January 15, 2018. ECF No. 8.
Following stipulated extension of time, Defendant provided
the administrative record on June 22, 2018. ECF No. 17.
filed the instant Motion for Judgment on July 6, 2018. ECF
No. 18. The Court heard oral argument on this motion on March
6, 2019 and took the motion under submission. ECF No. 32.
reviewing a claim administrator's decision pursuant to
ERISA, a court's standard of review depends upon the
terms under the benefit plan. A denial of benefits “is
to be reviewed under a de novo standard unless the benefit
plan gives the administrator or fiduciary discretionary
authority to determine eligibility for benefits or to
construe the terms of the plan.” Firestone Tire
& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989).
Where the plan grants discretion, abuse of discretion is the
appropriate standard of review. Id.
parties dispute whether the plan grants Defendant discretion
and thus whether a de novo or abuse of discretion review
applies. “There are no ‘magic' words that
conjure up discretion on the part of the plan administrator.
. . . The Supreme Court has suggested that a plan grants
discretion if the administrator has the ‘power to
construe disputed or doubtful terms' in the plan.”
Abatie v. Alta Health & Life Ins. Co., 458 F.3d
955, 963 (9th Cir. 2006) (citations omitted).
Court finds that the appropriate standard is de novo. This
determination arises from a review of the record. Defendant
filed two documents regarding the coverage in this case-a
policy (“Policy”) and a booklet
(“Booklet”). Both of these documents outline the
plan and policy coverage. By its own admission, Defendant
allegedly filed the “wrong” Policy in the
administrative record. It then sought to file the
“Corrected Policy” with a supplemental filing.
ECF No. 24. The Court finds, however, that the Booklet with
policy number GP-811383 is the only confirmed operative
policy document. The Court rejects Defendant's attempt to
rely upon the Corrected Policy. First, the Booklet has the
latest effective date (January 1, 2012) of the policy
documents submitted. Second, Defendant has not filed with its
correction any affidavit or other document authenticating and
confirming that the Corrected Policy was the policy in effect
for this case. Third, there are discrepancies as noted by
Plaintiff as to the policy numbers on the Corrected Policy
versus the Booklet. For all of the reasons, the Court rejects
Defendant's attempt to rely upon the Corrected Policy.
importantly, the Court does not find that the Booklet
contains language that confers or delegates discretion to the
plan administrator or fiduciary. Defendant does not dispute
this. The Court finds therefore that de novo review applies.
However, the Court finds that the applicable standard is
immaterial in this case. The Court finds that benefits must
be reinstated even under the higher abuse of discretion
standard. The Court will analyze this case under the higher
standard to avoid unnecessary delays as to benefits if
appellate review would lead to a different determination of
applying the abuse of discretion test, the Court considers
whether it is “left with a definite and firm conviction
that a mistake has been committed.” Salomaa v.
Honda Long Term Disability Plan, 642 F.3d 666, 676 (9th
Cir. 2011) (quoting United States v. Hinkson, 585
F.3d 1247, 1262 (9th Cir. 2009) (en banc)). To do so, the
Court considers whether the plan administrator's decision
was “(1) illogical, (2) implausible, or (3) without
support in inferences that may be drawn from the facts in the
record.” Id. (quoting Hinkson, 585
F.3d at 1262). The Court is limited to review of the
administrative record before the plan administrator.
Abatie, 458 F.3d at 970.
FINDINGS OF FACT
Court may hold a bench trial on the basis of an
administrative record and make findings of fact pursuant to
Rule 52(a). Kearney v. Standard Ins. Co., 175 F.3d
1084, 1095 (9th Cir. 1999). “Although Rule 43(a)
requires that ‘testimony' be taken in open court,
the record should be regarded as being in the nature of
exhibits, in the nature of documents, which are routinely a
basis for findings of fact even though no one reads them out
loud.” Id. at 1094. District courts are
permitted to “try the case on the record that the
administrator had before it.” Id. at 1095.
requires the Court to “find the facts specially and
state its conclusions of law separately.” Fed.R.Civ.P.
52(a)(1). The Court must state findings sufficient to
indicate the factual basis for its ultimate conclusion.
Kelley v. Everglades Drainage District, 319 U.S.
415, 422 (1943). The findings must be “explicit enough
to give the appellate court a clear understanding of the
basis of the trial court's decision, and to enable it to
determine the ground on which the trial court reached its
decision.” United States v. Alpine Land &
Reservoir Co., 697 F.2d 851, 856 (9th Cir. 1983),
cert. denied, 464 U.S. 863 (1983) (citations
having reviewed the administrative record, the Court makes
findings of fact in this case as follows.
Plaintiff's Prior Occupation
Prior to February 15, 2012 Plaintiff worked as a customer
service representative for Bank of America.
Defendant utilizes the Dictionary of Occupational Titles in
its assessment of insured's claims. The Dictionary of
Occupational Titles defines sedentary work as follows:
“Exerting up to 10 pounds of force occasionally
(Occasionally: activity or condition exists up to 1/3 of the
time) and/or a negligible amount of force frequently
(Frequently: activity or condition exists from 1/3 to 2/3 of
the time) to lift, carry, push, pull, or otherwise move
objects, including the human body. Sedentary work involves
sitting most of the time, but may involve walking or standing
for brief periods of time. Jobs are sedentary if walking and
standing are required only occasionally and all other
sedentary criteria are met.”
Plaintiff was employed in a sedentary position. Her job as a
customer service representative required constant sitting (up
to 10 hours per day), focus and concentration, and constant
use of both hands for typing.
Relevant Terms of Plaintiff's Policy
Plaintiff was insured by an ERISA benefits plan provided by
Defendant and maintained by Bank of America.
plan pays a monthly benefit if the insured is disabled and
unable to work. For the first 18 months, an “own
occupation” test of disability applies. Thereafter, an
insured must be unable to work at any “reasonable
occupation.” A reasonable occupation is any gainful
activity for which the insured is, or may reasonably become,
fitted by education, training, or experience and which
results in, or could be expected to result in, an income of
more than 60% of the claimant's adjusted pre-disability
Benefits terminate when Defendant determines that the insured
no longer satisfies the test for long-term disability or when