Muniz v. Amec Construction Management, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DIERRO MUNIZ,  No. 09-55689

Plaintiff-Appellant,

D.C. No.

v.

 2:07-cv-08066-

AMEC CONSTRUCTION MANAGEMENT, CAS-AJW

INC., a Corporation,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted

May 7, 2010—Pasadena, California

Filed October 27, 2010

Before: John T. Noonan, Richard R. Clifton and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Clifton

17879

17882 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT

COUNSEL

Charles J. Fleishman (argued) and Paul A. Fleishman,

Northridge, California, for the appellant.

Russell H. Birner (argued) and Adrienne C. Publicover, Wil-

son, Elser, Moskowitz, Edelman & Dicker LLP, Los Angeles,

California, for the appellee.

OPINION

CLIFTON, Circuit Judge:

Dierro Muniz appeals the district court’s decision uphold-

ing Connecticut General Life Insurance Company’s

(“CGLIC”) termination of Muniz’s disability benefits. The

district court held that Muniz did not qualify for disability

benefits under the terms of his disability insurance plan. We

affirm.

I. Background

Muniz was insured under a long-term disability insurance

plan issued by CGLIC as a benefit of his employment with

Morse Diesel International, predecessor of Amec Construc-

tion Management, Inc. This plan is governed by the Employee

Retirement Income Security Act of 1974 (“ERISA”), as

amended, 29 U.S.C. §§ 1001, et seq. Under the CGLIC plan,

a claimant will continue to receive benefits after 24 months if

he is “totally disabled,” which is defined as “unable to per-

form all the essential duties of any occupation for which [he

is] or may reasonably become qualified.”

MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17883

Muniz was diagnosed with HIV in 1989 and stopped work-

ing on August 1, 1991, due to the effects of his infection. He

began receiving total disability benefits under the CGLIC plan

in February 1992. In April 2005, Muniz’s claim came up for

periodic review.

As part of the review process, Muniz completed forms on

which he indicated he had “debilitating fatigue,” “asthma

[that] compounds [him] from being ambulatory,” difficulties

with “concentration and attention span,” and “intermittent

malaise.” Muniz also noted he engaged in light household

activities and exercise. Muniz’s treating physician, Dr. Wil-

liam Towner, completed a Physical Activities Assessment, on

which he checked boxes indicating that he found Muniz could

sit, stand, and walk “occasionally (1-33%) (< 2.5 hours).” Dr.

Towner also indicated that Muniz’s ability to work extended

shifts or overtime fell into the same “occasionally” category.

Based on a review of these forms and Muniz’s medical

records, CGLIC determined in its vocational assessment that

Muniz could perform “sedentary employment,” which quali-

fied him for clerical positions. A CGLIC nurse case manager

also found that the “current medical [record] does not support

the severity of symptoms as stated by [Muniz].”

The vocational assessment and the nurse case manager’s

evaluation were shared with Dr. Towner, and CGLIC

requested that Dr. Towner provide further medical documen-

tation should he disagree with the analysis. Dr. Towner

informed CGLIC that he disagreed with its assessment and he

noted the number of medications Muniz took daily, which left

him “extremely fatigued and unable to concentrate,” as well

as Muniz’s persistent contraction of methicillin-resistant staph

aureus infections. Dr. Towner concluded it was his “profes-

sional medical opinion that Mr. Muniz will be unable to work

in any field, sedentary or otherwise, in the foreseeable future.”

He did not provide any documentation of the fatigue or lack

of concentration.

17884 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT

CGLIC requested medical records from Dr. Towner in sup-

port of his opinion, including testing of Muniz’s cognitive sta-

tus, and after the records were received, CGLIC found them

incomplete and determined that Muniz should undergo a

Functional Capacity Evaluation (“FCE”).

CGLIC attempted to contact Muniz to schedule the FCE

several times over the course of four months without success.

On June 22, 2006, CGLIC sent Muniz a final letter informing

him that it was suspending his benefits due to his failure to

comply with the FCE request, and that his case would be

closed effective July 21, 2006, should he not respond by that

date.

On July 5, 2006, Muniz contacted CGLIC. He explained he

did not receive any CGLIC communication because he did

not use his home phone and he had been in Texas caring for

his parents. Muniz requested that he be allowed to complete

the FCE at a facility in Texas.

CGLIC located a facility in Texas and requested approval

from Dr. Towner, for this facility required a statement of

medical stability from the patient’s doctor before conducting

the FCE. Dr. Towner refused to authorize the exam, stating

that Muniz “suffer[ed] from wasting, fatigue [and being]

unable to participate in any functional evaluation.”

CGLIC then requested Dr. Towner send updated medical

records for Muniz. Based on the existing file material and the

additional records sent by Dr. Towner, a nurse case manager

again found that Muniz’s file was “insufficient to provide a

severity of symptoms that impact function.” CGLIC closed

Muniz’s claim on August 16, 2006, with benefits paid until

September 8, 2006. CGLIC informed Muniz that his “medical

documentation [did] not contain any current findings or docu-

ment the severity of [his] current condition that would prevent

[him] from performing the essential duties of any occupa-

tion.”

MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17885

Muniz filed an administrative appeal. His file was re-

evaluated by a new claim examiner and by the CGLIC medi-

cal director. The medical director noted a lack of evidence of

testing of “functional deficits” that would prevent him from

performing sedentary duties and concluded that the documen-

tation did not support Muniz’s claim.

Muniz again appealed the denial of benefits, alleging pro-

cedural errors on behalf of CGLIC and submitting further

records from a February 2007 visit with Dr. Towner. A new

claim examiner upheld the decision to terminate Muniz’s

claim. Muniz then filed this action in district court pursuant

to ERISA, 29 U.S.C. § 1132(a)(1)(B).

The parties agreed that the district court was to review

Muniz’s claim under the de novo standard, because the

CGLIC policy did not confer discretion upon CGLIC. See

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962-63

(9th Cir. 2006) (en banc). After conducting a de novo review,

the district court found the administrative record was insuffi-

cient for it to determine whether Muniz was “totally disabled”

under the terms of the plan at the time his benefits were termi-

nated. The court asked counsel for their positions on “appoint-

ing . . . an independent expert to evaluate Muniz and present

an opinion as to his functional capacity,” and counsel for

Muniz noted that the court had the authority to do so, provid-

ing the court with a supporting citation to Walker v. American

Home Shield Long Term Disability Plan, 180 F.3d 1065 (9th

Cir. 1999). The district court subsequently ordered the parties

to submit a joint list of proposed experts.

Muniz and Amec disagreed as to the intent of that order,

Muniz understanding they were to identify HIV experts and

Amec believing they were to identify functional capacity

experts. The parties filed a joint request for clarification, and

the court confirmed that the order required designation of a

functional capacity evaluator. The parties agreed upon a facil-

17886 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT

ity to conduct the evaluation, and on March 25, 2009, Muniz

was tested and evaluated by physical therapist Robert Larson.

Larson concluded that, on the day of the evaluation,

“Muniz demonstrated the capability to perform at a sustained

light to light-medium demand level.” Larson also stated that

for tasks such as sitting, standing, bending, and reaching,

Muniz “performed at competitive levels when compared to

individuals within the same population demographic.” He

characterized Muniz’s activity tolerance and endurance as

“fair to poor”; his body mechanics, pain behavior correlation,

and upper/lower strength as “fair to good”; and his coordina-

tion and pace object control as “good.”

After analyzing the record with the inclusion of the 2009

FCE, the district court concluded that it did not find Muniz

“totally disabled” under the terms of the CGLIC plan as of

September 9, 2006, the day after his benefits were terminated.

This appeal followed.

II. Discussion

“Where, as here, a district court has conducted a de novo

review of an ERISA plan administrator’s decision, we review

the court’s factual findings only to determine whether they are

‘clearly erroneous.’ ” Silver v. Executive Car Leasing Long-

Term Disability Plan, 466 F.3d 727, 732-33 (9th Cir. 2006)

(citing Kearney v. Standard Ins. Co., 175 F.3d 1984, 1095

(9th Cir. 1999) (en banc)). We review a trial court’s decision

to admit or exclude evidence for an abuse of discretion.

Friedrich v. Intel Corp., 181 F.3d 1105, 1110-11 (9th Cir.

1999).

A. The Claimant’s Burden of Proof

[1] Muniz brought suit under ERISA’s civil-enforcement

provision, which allows a claimant “to recover benefits due to

him under the terms of his plan, to enforce his rights under the

MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17887

terms of the plan, or to clarify his rights to future benefits

under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). The

district court assigned the burden of proof to Muniz as the

claimant. Muniz contends that the burden should properly be

borne by the plan administrator, but we agree with the district

court. As concluded by other circuit courts which have

addressed the question, when the court reviews a plan admin-

istrator’s decision under the de novo standard of review, the

burden of proof is placed on the claimant. See, e.g., Horton

v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th

Cir. 1998) (“A plaintiff suing under [29 U.S.C. § 1132(a)

(1)(B)] bears the burden of proving his entitlement to contrac-

tual benefits.”); Farley v. Benefit Trust Life Ins. Co., 979 F.2d

653, 658 (8th Cir. 1992) (“[W]e agree that it was [the claim-

ant’s] burden to show that he was entitled to the ‘benefits . . .

under the terms of his plan.’ ”) (omission in original) (quoting

29 U.S.C. § 1332(a)(1)(B)).1

[2] Muniz argues that after he met the initial burden of

proof of disability by submitting evidence of Dr. Towner’s

assessment of his disability, the burden of proof should have

shifted to CGLIC to demonstrate that its decision to terminate

his benefits was justified. Muniz does not cite any precedent

where a court conducting a de novo review of the record

shifted the burden of proof to the claim administrator, but

rather points to cases where courts reviewed claim administra-

tor decisions under the abuse-of-discretion standard.

1

District courts within this circuit have consistently held that the burden

of proof remains with the claimant when the court reviews a plan adminis-

trator’s decision under the de novo standard of review. See, e.g., Schwartz

v. Metro. Life Ins. Co., 463 F. Supp. 2d 971, 982 (D. Ariz. 2006)

(“Plaintiff has the burden of proof to show that he was eligible for contin-

ued long term disability benefits based on the terms and conditions of the

ERISA plan.”); Sabatino v. Liberty Life Assurance Co. of Boston, 286 F.

Supp. 2d 1222, 1232 (N.D. Cal. 2003) (“The Court concludes that Plaintiff

must carry the burden to prove that she was disabled under the meaning

of the plan.”); Jordan v. Northrop Grumman Corp. Welfare Benefit Plan,

63 F. Supp. 2d 1145, 1155 (C.D. Cal. 1999) (“[T]he burden in making

such a claim [for entitlement to benefits] is on Plaintiff.”).

17888 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT

[3] The abuse-of-discretion standard is used to review a

benefits decision when, as is often the situation but is not in

this case, “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). There is an additional

issue to consider in such a case, however. If the plan adminis-

trator or decisionmaker is also the party from whose pocket

the claim would have to be paid, such as an insurer or an

employer sponsoring a self-funded plan, the court must deter-

mine whether the denial of benefits was improperly affected

by this conflict of interest. The burden of proving that its deci-

sion was not improperly influenced has, logically, been placed

on that administrator. See, e.g., Tremain v. Bell Indus., Inc.,

196 F.3d 970, 976 (9th Cir. 1999) (when a claimant produces

evidence that a plan administrator’s self-interest caused a

breach of the administrator’s fiduciary obligations to the

claimant, a rebuttable presumption arises in favor of the

claimant and the plan bears the burden of proving that a con-

flict of interest did not affect its decision to deny or terminate

benefits).2

[4] We clearly limited this burden-shifting approach to

abuse-of-discretion cases where the administrator’s potential

conflict of interest was in question, however. See, e.g., Lang

2

The Supreme Court recently addressed the abuse-of-discretion standard

as used to review to an ERISA benefits decision made by a claim adminis-

trator who also funds the benefits plan. See Metro. Life Ins. Co. v. Glenn,

554 U.S. 105, 128 S. Ct. 2343 (2008). It stated that a court must consider

this conflict of interest as one of numerous “case-specific” factors it evalu-

ates in determining whether the plan administrator abused its discretion in

denying benefits, with the weight given to the conflict of interest varying

on the individual circumstances of each case. Id. at 2351-52; see also

Montour v. Hartford Life & Accident Ins. Co., 588 F.3d 623, 631 (9th Cir.

2009) (“Our court has implemented this approach [from Metro. Life Ins.

Co.] by including the existence of a conflict as a factor to be weighed,

adjusting the weight given that factor based on the degree to which the

conflict appears improperly to have influenced a plan administrator’s deci-

sion.”).

MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17889

v. Long-Term Disability Plan of Sponsor Applied Remote

Tech., Inc., 125 F.3d 794, 798 (1997) (under the abuse of dis-

cretion standard, “[i]f the plan fails to carry its burden, how-

ever, our review becomes de novo” and the plan’s

interpretation is no longer relevant because the court in con-

ducting a de novo review of the record does not give “defer-

ence to the administrator’s tainted exercise of discretion”)

(internal quotation marks omitted). When conducting a de

novo review of the record, the court does not give deference

to the claim administrator’s decision, but rather determines in

the first instance if the claimant has adequately established

that he or she is disabled under the terms of the plan.

Muniz also contends that the burden of proving a disability

should be shifted to the claim administrator when the claim

administrator terminates disability benefits without providing

any evidence that the claimant’s condition has improved or

changed since its initial award of benefits. There is no case

law supporting this proposition.3 Rather, district courts within

3

Muniz cites five cases for the proposition that the defendant must jus-

tify termination of benefits with new evidence demonstrating a change in

the claimant’s condition. None of these cases support application of this

burden-shifting standard, however. In both McOsker v. Paul Revere Life

Insurance Co., 279 F.3d 586 (8th Cir. 2002), and Gunderson v. W.R.

Grace & Co. Long Term Disability Income Plan, 874 F.2d 496 (8th Cir.

1989), the Eighth Circuit acknowledged that a previous payment of bene-

fits is relevant when evaluating whether a claim administrator properly ter-

minated benefits, but the court did not shift the burden of proof to the

defendant in either case. In Connors v. Connecticut General Life Insur-

ance Co., 272 F.3d 127 (2d Cir. 2001), the Second Circuit also did not

shift the burden of proof to the defendant; it simply noted that the district

court’s finding that the plaintiff’s claim was over an initial denial of bene-

fits rather than a termination of past benefits was a factual error that may

have influenced the weight given to the evidence presented by the defen-

dant.

Muniz also cites Saffon v. Wells Fargo & Co. Long Term Disability

Plan, 522 F.3d 863 (9th Cir. 2008), for the proposition that the burden

shifts to the defendant to prove a change in a claimant’s medical condition

when terminating benefits. The court in Saffon did not shift the burden to

17890 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT

this circuit have consistently held that the burden of proof

continues to lie with the plaintiff when disability benefits are

terminated after an initial grant. See, e.g., Clifford v. Pruden-

tial Ins. Co. of Am., No. 07-CV-126-ST, 2008 WL 4164750,

at *5, *9 (D. Or. Aug. 27, 2008) (the plaintiff had the burden

of proving she was disabled under the plan’s terms when the

plan terminated her benefits after a reevaluation of her claim);

Gardner v. Bear Creek Corp., No. C 06-02822 MHP, 2007

WL 2318969, at *13, *18 (N.D. Cal. Aug. 6, 2007) (same).

We agree. That benefits had previously been awarded and

paid may be evidence relevant to the issue of whether the

claimant was disabled and entitled to benefits at a later date,

but that fact should not itself shift the burden of proof.

B. The District Court’s Decision

The district court’s finding that Muniz did not meet the

CGLIC plan’s definition of “totally disabled” as of September

9, 2006 was not clearly erroneous. In conducting a de novo

review of the record, the district court found that the evidence

presented, including the opinions of two health care profes-

sionals who personally examined Muniz, did not confirm

Muniz’s claims that his symptoms rose to the level of total

disability and left him “unable to perform all the essential

duties of any occupation for which [he is] or may reasonably

become qualified.”

[5] Muniz argues that the district court committed clear

error in its analysis because his medical records did not show

the defendant, but rather held under the abuse-of-discretion standard that

the defendant must conduct a “meaningful dialogue” with the beneficiary

regarding his or her claim before a final denial of the claim. Id. at 870-71.

Similarly, in Beckstrand v. Electronic Arts Group Long Term Disability

Insurance Plan, No. 1:05-CV-0323, 2008 WL 4279566 (E.D. Cal. Sept.

16, 2008), another abuse of discretion case cited by Muniz, the court calls

for a “meaningful dialogue” between claimant and claim administrator,

but does not mention burden-shifting.

MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17891

a change in his condition over the years he was covered by the

CGLIC plan. As noted above, the fact that the claimant was

initially found disabled under the terms of the plan may be

considered evidence of the claimant’s disability, but as the

Eighth Circuit stated in McOsker v. Paul Revere Life Insur-

ance Co., “[w]e are not suggesting that paying benefits oper-

ates forever as an estoppel so that an insurer can never change

its mind.” 279 F.3d 586, 589 (8th Cir. 2002). Muniz did not

provide sufficient evidence to demonstrate that the district

court committed clear error in its analysis of the record.

[6] Muniz contends that Dr. Towner’s recommendations

and observations demonstrated that Muniz met the definition

of “totally disabled” under the CGLIC plan. He argues that

the district court improperly rejected Dr. Towner’s medical

opinion, for as his treating physician, Dr. Towner’s opinion

should have been accorded greater deference by the court. But

courts are not required to “accord special weight to the opin-

ions of a claimant’s physician.” Black & Decker Disability

Plan v. Nord, 538 U.S. 822, 834 (2003). Moreover, Muniz

does not provide significant factual support to rebut the dis-

trict court’s finding that Dr. Towner’s records were inconsis-

tent, incomplete, and did not ultimately support Muniz’s

claim that he met the definition of total disability under the

CGLIC plan.

[7] Muniz also argues that the district court erred by order-

ing him to participate in an FCE in March 2009 and in subse-

quently considering the results of the March 2009

examination as relevant to his condition when his benefits

were terminated in September 2006. This argument fails

because “[a] district court, when exercising de novo review of

an ERISA benefits denial decision, may admit additional evi-

dence when ‘circumstances clearly establish that additional

evidence is necessary to conduct an adequate de novo review

of the benefit decision.” Friedrich, 181 F.3d at 1111 (quoting

Mongeluzo v. Baxter Travenol Long Term Disability Benefit

Plan, 46 F.3d 938, 944 (9th Cir. 1995)). Such evidence may

17892 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT

include the opinion of an independent expert. See Walker, 180

F.3d at 1071 (“Armed with the authority to consider addi-

tional evidence in its de novo review, the district court also

has the discretion to appoint an expert sua sponte under Fed-

eral Rule of Evidence 706(a).”). Here, the district court con-

ducted a review of the record and determined it could not rely

solely on Dr. Towner’s records due to their inconsistent and

incomplete nature. The court did not abuse its discretion in

holding that an expert opinion would be helpful to determine

the extent of Muniz’s disability.

Muniz argues that the requirement in section 1133(1) of

ERISA that a claimant who is denied benefits be “provide[d]

adequate notice in writing . . . setting forth the specific rea-

sons for such denial” from his benefit plan indicates that the

evidence the district court may consider is limited to the writ-

ten reasons the plan gave the claimant for denying benefits.

29 U.S.C. § 1133(1). The case law cited by Muniz does not

support this proposition. The only case he refers to involving

de novo review actually provides support for the contrary

proposition that additional evidence should be admitted under

the circumstances faced by the court here. Opeta v. Nw. Air-

lines Pension Plan for Contract Employees, 484 F.3d 1211,

1217 (9th Cir. 2007) (introduction of evidence beyond the

administrative record may be necessary for “claims that

require consideration of complex medical questions or issues

regarding the credibility of medical experts”) (quoting Que-

sinberry v. Life Ins. Co. of N. Am., 987 F.2d 1017, 1027 (4th

Cir. 1993) (en banc)).

[8] Muniz also argues that he was denied a “full and fair

review” of his claim because he was not given the opportunity

to present evidence that FCEs are flawed and that his March

2009 FCE was flawed in particular. See 29 U.S.C. § 1133(2)

(the benefit plan shall “afford a reasonable opportunity to any

participant whose claim for benefits has been denied for a full

and fair review by the appropriate named fiduciary of the

decision denying the claim”). The district court noted in its

MUNIZ v. AMEC CONSTRUCTION MANAGEMENT 17893

denial of Muniz’s motion for a new trial that it had “asked

both parties’ counsel about the appropriateness of a court-

ordered FCE at trial, and plaintiff’s counsel indicated such an

order would be appropriate.” While Muniz did state, in the

parties’ joint request for clarification of the court’s order

appointing an independent expert, that he would like to “sub-

mit evidence regarding the efficacy of such testing with

regard to disability claims,” he did not make any further

attempts to challenge the FCE once the district court clarified

that its order called for an FCE. Indeed, the parties agreed

upon an FCE facility and expert to perform the exam. After

the district court issued its judgment, Muniz filed a motion for

a new trial or to amend the judgment, arguing that the FCE

should not have been ordered, and the district court denied the

motion, finding that Muniz had adequate opportunity to object

to the FCE and did not do so. We agree with the district court

that Muniz had a sufficient opportunity to challenge the FCE.

[9] Finally, Muniz argues that the results of the March

2009 FCE are irrelevant as to the issue of whether or not he

was disabled on September 9, 2006. The district court itself

noted that the “2009 evaluation does not, in and of itself,

establish what Muniz’s ability was in 2006.” Nonetheless,

while not conclusive, the 2009 FCE potentially provided

insight as to Muniz’s previous condition, for Muniz had many

of the same symptoms and same activity levels as he did in

2006, and Muniz does not contend that his underlying condi-

tion changed substantially. The district court was cognizant

that the FCE was “a snap shot performance of [Muniz’s]

capacity,” and accordingly did not rely solely on the FCE’s

results, but rather considered them in combination with the

other evidence. Muniz did not establish that the district court

erred in reaching the conclusion that he was not “totally dis-

abled” under the CGLIC plan.4

4

Muniz also argues that he was denied a “full and fair review” of

CGLIC’s decision to deny benefits, as mandated by ERISA. 29 U.S.C.

17894 MUNIZ v. AMEC CONSTRUCTION MANAGEMENT

III. Conclusion

Muniz did not meet his burden of proving he was “totally

disabled” under the terms of the CGLIC plan as of September

9, 2006. The district court did not err in upholding CGLIC’s

termination of Muniz’s disability benefits based on a lack of

medical documentation supporting the determination of total

disability.

AFFIRMED.

§ 1133(2). The district court conducted a de novo review of the record and

thus did not accord any deference to CGLIC’s decision. The adequacy of

CGLIC’s review is therefore not before this court. See Lang v. Long-Term

Disability Plan of Sponsor Applied Remote Tech., Inc., 125 F.3d 794, 798

(9th Cir. 1997) (de novo review does not address a plan administrator’s

“tainted exercise of discretion”).