Salomaa v. Honda Long Term Disability Plan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMUEL SALOMAA,  No. 08-55426

Plaintiff-Appellant,

D.C. No.

v.

 2:06-cv-00754-AG-

HONDA LONG TERM DISABILITY FMO

PLAN, an Erisa Plan,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the Central District of California

Andrew J. Guilford, District Judge, Presiding

Argued and Submitted

May 4, 2009—Pasadena, California

Filed March 7, 2011

Before: Cynthia Holcomb Hall,1 Andrew J. Kleinfeld, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Kleinfeld;

Dissent by Judge Hall

1

Judge Hall died on February 26, 2011, before this opinion could be

filed. She had previously circulated her dissent, with instructions to file it

with the majority opinion.

3187

SALOMAA v. HONDA LONG TERM DISABILITY 3191

COUNSEL

Charles J. Fleishman, Northridge, California, for the appel-

lant.

Melissa M. Cowan, Burke, Williams & Sorensen, LLP, Los

Angeles, California, for the appellee.

OPINION

KLEINFELD:

We address the standard for overturning an ERISA plan

decision, and why the challenger met it.

I. Facts

Samuel Salomaa worked for American Honda Motor Com-

pany, Inc. for more than twenty years. His supervisor

described him as “without a doubt the best employee to have

worked for me” in her 15 years at Honda. He was never out

sick, and never left work early or came in late. At age 47,

Salomaa was a dedicated family man to his wife and daugh-

ter, and an exercise enthusiast who jogged two miles to and

from work every day and enjoyed playing tennis with his

wife.

3192 SALOMAA v. HONDA LONG TERM DISABILITY

But in October 2003, Salomaa fell ill with what he thought

was a stomach flu that made him miss three days of work. He

was never the same again. He returned to work, but was tired

all of the time, and had difficulty concentrating. His supervi-

sor noted that Salomaa “walked more slowly,” and co-

workers asked her about Salomaa’s well-being. Not only did

Salomaa no longer jog to work, he did not even walk to work.

After work he was completely exhausted, and spent weekends

in bed recovering.

Salomaa went to Kaiser Permanente to find out what was

wrong with him and get it cured. His complaint was grossly

excessive fatigue, beginning when he had his “flu,” along

with other symptoms, such as headache, insomnia, and exces-

sive sensitivity to stimuli. His doctors went through a lengthy

process of ruling out alternatives to chronic fatigue syndrome.

Over the following months, Salomaa’s Kaiser Permanente

physicians worked on a diagnosis. He had reported loss of

libido, and a blood test showed low testosterone, but a subse-

quent blood test was normal, so low testosterone was ruled

out as an explanation. An MRI showed no brain abnormali-

ties. The thyroid reading on his blood tests were normal.

Heart failure might explain severe fatigue, and an echocardio-

gram showed mild mitral regurgitation, but the examining

cardiologist ruled out a heart problem as the cause of the

fatigue.

A Kaiser Permanente psychiatrist formed what she called

a “working diagnosis” of “atypical depression.” The depres-

sion was “atypical” in that Salomaa had no previous psychiat-

ric history, could precisely identify the onset of his fatigue

following his October 2003 flu, had no “precipitating stres-

sors” that might have triggered the depression, and denied

feeling depressed. The psychiatrist tried treating Salomaa with

various anti-depressants and a counseling program. In July

2004, Salomaa took medical leave, based on his doctor’s

diagnosis of depression and anxiety. After several months, it

SALOMAA v. HONDA LONG TERM DISABILITY 3193

was clear that the medication and counseling were not work-

ing, so the physician who had made the working diagnosis of

depression rejected the diagnosis.

Salomaa’s condition got worse instead of better. Some

days, getting up and getting dressed left him too exhausted to

drive the two miles to his job, so he stayed home. When he

did go to work, he could not do his job as well as he had been

before his illness. His supervisor reported that on bad days he

seemed confused, and she often insisted that he go home to

rest. When he came home from work, he went straight to bed,

even eating dinner there. In spite of his fatigue, Salomaa also

had insomnia.

A physician in the internal medicine department at Kaiser

Permanente, Dr. Floyd Anderson, diagnosed chronic fatigue

syndrome. He noted the ineffectiveness of various medica-

tions that had been tried for other conditions that might

explain the symptoms. He wrote on March 4, 2005 that “since

beginning our Kaiser Permanente Chronic Fatigue/

Fibromyalgia Clinic in 1992, Mr. Salomaa is one of the more

severe patients that I have seen in the clinic as far as his

energy level. He is probably the most sensitive patient I’ve

seen in regard to sensitivity to sound. His memory has also

markedly decreased secondary to his illness. Mr. Salomaa is

totally disabled and would not be able to work even 30 min-

utes per day on a daily basis.” The psychiatrist who had tenta-

tively diagnosed depression wrote to the plan administrator

concurring in Dr. Anderson’s diagnosis, and stating that Salo-

maa had “never suffered from Major Depression though that

was [her] working diagnosis for several months.”

Salomaa applied to Honda’s ERISA plan administrator for

long-term medical disability benefits.2 The claim manager

2

Under the terms of Honda Motor’s Long Term Disability Policy, an

employee

3194 SALOMAA v. HONDA LONG TERM DISABILITY

denied his claim on April 22, 2005. She wrote that Salomaa

had no positive objective physical findings, the lack of objec-

tive physical findings apparently forming the basis for the

denial. She noted that Salomaa’s “thyroid, calcium, albumin,

serum electrolytes, and CBC results were normal.” Contrary

to her inference that Salomaa was healthy, the Kaiser Perma-

nente physicians had used these normal results to rule out

alternatives to chronic fatigue syndrome. She erred in some

respects, suggesting a less than careful examination of Salo-

maa’s medical record. For example, she wrote that he had “no

fevers or weight loss,” but actually he had lost 14% of his

body weight in six months according to the medical materials

that had been submitted. She misunderstood the Kaiser Per-

manente evaluation that “you never had major depression” as

meaning that “your depression has improved.” In the denial

letter, she relied on review by “our medical department,” by

which she meant that one physician had read Salomaa’s medi-

cal file and written his opinion.

The denial had invited supplementation within thirty days,

so Dr. Anderson provided more details. The disability claim

manager had provided a form for Salomaa’s physician to use

to check off physical abilities, and Dr. Anderson checked “oc-

casionally,” the lowest level allowed on the form, for sitting,

standing, walking, grasping, and carrying objects. He wrote a

letter as well, stating that Salomaa had severe fatigue, and was

“only able to do paperwork for a few minutes and then is very

fatigued.” Dr. Anderson explained in his letter that patients

with chronic fatigue syndrome have good days and bad days,

is considered Disabled if, solely because of Injury or Sickness, he

or she is:

1. unable to perform the material duties of his or her Regular

Occupation; and

2. unable to earn 80% of more of his or her Index Covered

Earnings from working his or her Regular Occupation.

SALOMAA v. HONDA LONG TERM DISABILITY 3195

and that on a good day the patient might be able to perform

the activities listed on the form for an hour or two, but then

end up in bed for several days due to overexertion. In Salo-

maa’s case, Dr. Anderson’s letter opined that “Salomaa would

not be able to work perhaps 30 minutes to one hour” and that,

“[e]ven this, if he happened to overexert, would leave him

exhausted.” “Since beginning our clinic here in 1992, Mr.

Salomaa is one of the more severe cases I have seen” and that

Salomaa “definitely could not work.” He pointed out to the

disability claim manager that “laboratory tests are always nor-

mal and there is no test that is available at the present time for

chronic fatigue syndrome.” The plan administrator’s review-

ing physician called Dr. Anderson on the phone, and Dr.

Anderson reminded him that Salomaa had chronic fatigue

syndrome, and that Salomaa’s lack of positive laboratory

findings was consistent with that diagnosis.

The disability claim manager sent out a final denial on May

20, 2005. She again recited the absence of positive laboratory

results or physical findings, again made the error on weight

loss and depression, and noted that Salomaa’s daily activities

exceeded Dr. Anderson’s estimations. She pointed out that his

daily journals had showed him driving a half-hour to an hour

to Home Depot and an hour to pick up his children at school,

both taking longer than the half-hour that his doctor said was

the most he could work.

Dr. Anderson responded that since Salomaa’s last two vis-

its in May and June, he thought Salomaa’s condition had

markedly deteriorated, to where he could no longer work even

five minutes per day. Responding to the disability claim man-

ager’s argument that Salomaa had “no physical findings to

support chronic fatigue syndrome,” he wrote that in his expe-

rience, “most patients’ symptoms and physical findings mani-

fest when they initially develop the viral-type illness,” as

Salomaa’s had. He pointed out that usually there were no

physical findings for chronic fatigue syndrome except that the

patient looked fatigued, just as there were no physical symp-

3196 SALOMAA v. HONDA LONG TERM DISABILITY

toms for migraine headache except that the patient would

appear to be in pain.

Rebutting the plan administrator’s contention, Dr. Ander-

son wrote that on his long trip to Home Depot, Salomaa had

gone with his brother-in-law, “and was too fatigued to go into

Home Depot and consequently sat in the car the entire time.”

He had picked up his children at school only twice, in Janu-

ary, and had been unable to do since. Refuting the administra-

tor’s claim of “no appearance of physical findings,” Dr.

Anderson wrote that had been “shocked” at Salomaa’s decline

from 163 to 140 pounds, perhaps because he was too fatigued

to come to the table for breakfast or lunch and could only sit

for five or ten minutes at dinner. Salomaa, Dr. Anderson

wrote, was spending most of his time in bed, and at his last

visit in June, Salomaa had been unable to sit up on the exam-

ining table without assistance and “appeared cachectic

[cachexia is severe generalized weakness, malnutrition and

emaciation3] and weak.”

The disability claim manager wrote that Dr. Anderson’s let-

ter was unpersuasive because he had not mentioned various

matters (many of which had not troubled the disability claim

manager in earlier correspondence), and in a telephone con-

versation with someone he had said that Salomaa’s limitations

were based on what Salomaa had said:

Dr. Anderson’s letter dated June 13, 2005 made no

specific mention of substantial impairment of cogni-

tive function, sore throat, current infection, tender

lymph nodes, specific myalgia or arthralgia, or new

onset of headache or post-exertion fatigue. There

were no rational specific limitations of physical

functional capacity such as the number of hours you

are able to stand or the maximum amount of weight

you are able to lift or carry. Dr. Anderson noted that

3

Blakiston’s Gould Medical Dictionary 235 (3d ed. 1972).

SALOMAA v. HONDA LONG TERM DISABILITY 3197

you looked tired and reported weight loss but the

reason behind the weight loss and its relation to spe-

cific physical functional capacity is unknown.

Furthermore, there was no mention of new positive

lab findings that may be supportive of the etiology

of Chronic Fatigue Syndrome. There is no indication

that you are on an ongoing specific treatment pro-

gram including pharmacological stimulants or other

measures for reported lack of energy. In a telephone

conversation with Dr. Anderson on May 19, 2005,

he stated that your limitations of physical functional

capacity were based entirely upon self report. Under

generally accepted medical standards one would not

expect to see this constellation of findings in a

severe case of Chronic Fatigue Syndrome that is

incapacitating in terms of pain or fatigue.

Also during July, Salomaa’s short term disability benefits

expired. He could no longer afford his house, so his family

sold it and moved from Glendale, California to less expensive

Arkansas. He could not help with the move because he was

too exhausted. Nor was he strong enough to manage flying,

so he lay in the backseat of a car while his brother-in-law

drove.

After the May 20, 2005 final denial of disability benefits,

Salomaa appealed. His attorney made a written request for

Salomaa’s entire file, including correspondence with anyone

the plan consulted with regard to the claim. He also asked a

number of questions, such as what “positive lab findings” the

plan administrator thought might be relevant to the chronic

fatigue syndrome diagnosis, it being a diagnosis ordinarily

given when there are no positive laboratory findings despite

chronic fatigue symptoms. Salomaa’s attorney also offered in

his letter to submit Salomaa for an examination by the disabil-

ity plan’s selected physicians and for such laboratory tests as

the plan wished to have performed.

3198 SALOMAA v. HONDA LONG TERM DISABILITY

The plan did not respond to Salomaa’s attorney’s letter.

Nor did the plan ever have any physician of its choosing

examine Salomaa. When Salomaa’s attorney wrote again, the

disability claim manager told him that the plan had said all it

was going to say, Salomaa’s claim was denied, and that Salo-

maa had not appealed.

Salomaa’s attorney also provided the plan with additional

documentary evidence of Salomaa’s condition. Salomaa’s

boss at Honda wrote that he was one of the few people in

southern California to walk or jog to work, and had been a

superb employee until he got sick, and that those at Honda

aware of his difficulty getting his disability benefits were “ap-

palled.” His brother-in-law wrote that he got to know Salomaa

when they were students at Harvard and MIT, that Salomaa

had been very energetic and intelligent, but that now he had

“profound” apparent changes. For example, “any sentence

containing a sequence of ideas was too difficult for him to

comprehend.” While helping out with chores Salomaa had

become unable to do, the brother-in-law observed that Salo-

maa had lost the “ability to plan” and the stamina for simple

household tasks and even for conversation. He could do well

for a few minutes, but then collapsed. “I drove Sam and their

daughter from Los Angeles to Arkansas. For the entire trip

Sam was either fully or partially reclined in the back of their

Honda Element. . . . When stopping to eat, Sam could not

manage to eat in the restaurant. I would go in to order the

food, and then bring it to Sam to eat in the car.”

Salomaa’s attorney also forwarded a neuropsychological

evaluation from New Jersey Medical School. Two neuropsy-

chologists reported on a battery of intelligence and other tests

they had administered. They included a standard test for

malingering, which showed “a valid profile and that he was

putting forth adequate effort.” His intelligence tested as “aver-

age,” a full scale IQ of 108 which is fine for many people but

shockingly low for a Harvard man with a career in computers.

He “performed in the impaired range” when tasks became

SALOMAA v. HONDA LONG TERM DISABILITY 3199

more difficult and distractors were introduced. The neuropsy-

chologists’ conclusion was that there was no evidence of psy-

chiatric illness, but a “neuropsychological profile consistent

with reports in the literature that identify slowed processing

speed and decreased mental efficiency (ability to process mul-

tiple pieces of information at one time) as the hallmark cogni-

tive symptoms of [chronic fatigue syndrome].”

The director of the New Jersey Medical School Chronic

Fatigue Syndrome/Fibromyalgia Center wrote after personally

examining Salomaa that Salomaa “has underlying chronic

fatigue syndrome superimposed on an extreme stress sensitiv-

ity. . . . In fact, I think he is one of the most disabled individu-

als I have seen in over 15 years of practice. I do not believe

this patient can work, even on a part-time basis. Simple cogni-

tive tasks produce a dramatic worsening of his entire symp-

tom complex.” The dramatic symptom worsening from even

minimal exertion was characteristic of chronic fatigue syn-

drome and was the thing disabling Salomaa.

Meanwhile, Salomaa had applied to the Social Security

Administration for disability benefits. The Social Security

Administration found that Salomaa was completely disabled

and unable to perform any occupation in the national econ-

omy, and awarded benefits. In January 2006, Salomaa’s law-

yer forwarded a copy of the SSI award to the plan.

But on February 14, 2006, the appeals claim manager for

CIGNA Group Insurance, the plan administrator, wrote Salo-

maa’s lawyer that on appeal CIGNA affirmed its previous

denial. The plan administrator’s letter stated that the medical

evidence had to show that Salomaa was unable to perform his

occupation from July 24, 2004 to February 20, 2005, and it

did not. The plan defines “disability” as inability, because of

injury or sickness, to perform, or earn 80% as much from, his

regular occupation.4 The “elimination period” screens out

4

The definition, in full, of disability under the plan is:

The Employee is considered Disabled if, solely because of Injury

3200 SALOMAA v. HONDA LONG TERM DISABILITY

temporary disabilities by requiring a continuous specified

period of disability.5 CIGNA’s denial letter quoted from a file

review it had obtained from its own consulting physician.

This consulting physician’s report, like the previous one, was

not provided to Salomaa’s lawyer.

Salomaa sued the plan in district court, claiming wrongful

denial of benefits.6 The district court applied an abuse of dis-

cretion standard, taking into consideration the plan’s conflict

of interest, and upheld the plan administrator’s denial of bene-

fits. The district court emphasized the degree to which Salo-

maa’s diagnosis depended on his own symptom reports

or Sickness, he or she is:

1. unable to perform the material duties of his or her Regular

Occupation; and

2. unable to earn 80% or more of his or her Indexed Earnings

from working in his or her Regular Occupation.

After Disability Benefits have been payable for 24 months, the

Employee is considered Disabled if, solely due to Injury or Sick-

ness, he or she is:

1. unable to perform the material duties of any occupation for

which he or she is, or may reasonable become, qualified based on

education, training or experience; and

2. unable to earn 80% or more of his or her Indexed Earnings.

5

It is derived from the policy language: “The Elimination Period is the

period of time an Employee must be continuously Disabled before Dis-

ability Benefits are payable. The Elimination Period is shown in the

Schedule of Benefits.” In this case, the Elimination Period was 210 days,

from July 24, 2004 through February 20, 2005.

6

After Salomaa sued, Honda’s plan administrator surreptitiously video-

taped Salomaa’s home and Salomaa, when he left his house, in July and

November 2006, and filed a DVD with the district court. Honda’s lawyer

requested the district court to consider the tapes if and only if the court

reviewed de novo. Salomaa objected to considering the video, and the dis-

trict court decided that since it reviewed for abuse of discretion and not

de novo, the video made no difference and was not considered for pur-

poses of deciding whether Salomaa was disabled.

SALOMAA v. HONDA LONG TERM DISABILITY 3201

because of the lack of objective laboratory or other findings,

that the plan had taken the required steps of considering Salo-

maa’s evidence and consulting qualified experts, and even

with the abuse of discretion standard modified on account of

the insurer’s conflict of interests, that “ ‘abuse’ is still a pow-

erful word.”

Salomaa appeals.

II. Analysis.

A. Standard of Review.

We held in Kearney v. Standard Insurance Co.7 that by

default, review of denial of ERISA benefits is de novo, and

that to obtain the more lenient abuse of discretion standard of

review, a plan must unambiguously so provide. The plan in

this case does so. It expressly and unambiguously gives the

administrator discretion to determine eligibility.8 Thus, under

7

175 F.3d 1084, 1088-90 (9th Cir. 1999).

8

Section 4.2 states that “The Plan Administrator shall have all powers

and duties necessary to fulfill its responsibilities, including . . . [t]o inter-

pret the Plan as it, in its sole discretion, determines to be appropriate; . . .

[and t]o determine all questions relating to the eligibility of persons to par-

ticipate or receive benefits . . . .” Section 4.6(a) states that “The Plan

Administrator is responsible for the general administration and manage-

ment of the Plan and shall have all powers and duties necessary to fulfill

its responsibilities, including, but not limited to, the discretion to interpret

and apply the Plan and to determine all questions relating to eligibility for

benefits. The Plan shall be interpreted in accordance with its terms and

their intended meanings. However, the Plan Administrator and all Plan

fiduciaries shall have the discretion to interpret or construe ambiguous,

unclear, or implied (but omitted) terms in any fashion they deem to be

appropriate in their sole and exclusive judgment, and to make any findings

of fact needed in the administration of the Plan. The validity of any such

interpretation, construction, decision, or finding of fact shall not be given

de novo review if challenged in court, by arbitration, or in any other

forum, and shall be upheld unless clearly arbitrary or capricious.”

3202 SALOMAA v. HONDA LONG TERM DISABILITY

Firestone Tire & Rubber Co. v. Bruch,9 we review the admin-

istrator’s decision for abuse of discretion, rather than de novo.

We have gradually refined and restated our standard of

review. In Horan v. Kaiser Steel Retirement Plan,10 applied in

Jordan v. Northrop Grumman Corp. Welfare Benefit Plan11

and our more recent decision in Sznewajs v. U.S. Bancorp,12

we held that “[a] decision is not arbitrary unless it is ‘not

grounded on any reasonable basis.’ ”13 This “any reasonable

basis” test is no longer good law.

[1] The administrator of the plan before us has a conflict

of interest, as the term is used in ERISA cases, because the

insurer acts as both funding source and administrator.14 In our

en banc decision in Abatie v. Alta Health, we held that if a

plan gives discretion to an administrator operating under a

conflict of interest, the “conflict must be weighed as a factor

in determining whether there is an abuse of discretion.”15 Pro-

cedural errors by the administrator are also “weighed in

deciding whether the administrator’s decision was an abuse of

discretion.”16 We held in Saffon v. Wells Fargo & Company

Long Term Disability Plan17 that we apply different levels of

skepticism on account of conflicts of interest, depending on

various factors such as inconsistent reasons for denial or evi-

dence of malice. We held that “when reviewing a discretion-

9

489 U.S. 101, 115 (1988); Standard Ins. Co. v. Morrison, 584 F.3d

837, 840 (9th Cir. 2009).

10

947 F.2d 1412 (9th Cir. 1991).

11

370 F.3d 869 (9th Cir. 2004), overruled on other grounds by Abatie

v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir. 2006).

12

572 F.3d 727 (9th Cir. 2009).

13

Horan v. Kaiser Steel Retirement Plan, 947 F.2d 1412, 1417 (9th Cir.

1991) (citation omitted).

14

Abatie, 458 F.3d at 965.

15

458 F.3d at 965.

16

Id. at 972.

17

522 F.3d 863, 868-69 (9th Cir. 2008).

SALOMAA v. HONDA LONG TERM DISABILITY 3203

ary denial of benefits by a plan administrator who is subject

to a conflict of interest, we must determine the extent to

which the conflict influenced the administrator’s decision and

discount to that extent the deference we accord the adminis-

trator’s decision.”18

Subsequently, the Supreme Court issued its own refine-

ment, superseding ours to the extent that there is any differ-

ence. Metropolitan Life Insurance Co. v. Glenn holds that

where “the entity that administers the plan, such as an

employer or an insurance company, both determines whether

an employee is eligible for benefits and pays benefits out of

its own pocket . . . this dual role creates a conflict of interest;

that a reviewing court should consider that conflict as a factor

in determining whether the plan administrator has abused its

discretion in denying benefits; and that the significance of the

factor will depend upon the circumstances of the particular

case.”19 Under Glenn, the conflict of interest must be

“weighed as a factor” but does not convert abuse of discretion

review into de novo review. The weight given the factor varies.20

The Court emphasized that its “elucidation of Firestone’s

standard does not consist of a detailed set of instructions” and,

importing language from the standard of review of adminis-

trative agency decisions, “there ‘are no talismanic words that

can avoid the process of judgment.’ ”21

[2] The Supreme Court further refined the standard of

review in its decision this year in Conkright v. Frommert,

holding that “a single honest mistake in plan interpretation”

administration does not deprive the plan of the abuse of dis-

cretion standard or justify de novo review for subsequent

related interpretations.22 The Court emphasized that under

18

Id. at 868.

19

554 U.S. 105, ___, 128 S. Ct. 2343, 2346 (2008).

20

Id. at 2351.

21

Id. at 2352 (citation omitted).

22

130 S. Ct. 1640, 1644 (2010).

3204 SALOMAA v. HONDA LONG TERM DISABILITY

Glenn, “a deferential standard of review remains appropriate

even in the face of a conflict.”23 Conkright noted, though, that

“[a]pplying a deferential standard of review does not mean

that the plan administrator will prevail on the merits.”24 What

deference means is that the plan administrator’s interpretation

of the plan “ ‘will not be disturbed if reasonable.’ ”25

It is much easier to state the words of the formula for the

standard of review than to say what the formula means in

practice. We now know that the administrator’s decision can-

not be disturbed if it is reasonable. And we know that even

an unqualified abuse of discretion standard of review does not

mean that the administrator necessarily prevails on the merits,

because “no talismanic words . . . can avoid the process of

judgment.” We know that we are supposed to “weigh” a con-

flict of interest in deciding how skeptical to be of the adminis-

trator’s decision, according varying weight to it depending on

other factors, but that is a hard standard to apply. “Weighing”

is a metaphor. Real weighing is done with a scale. For fine

work one may gradually add two gram brass weights on one

side of the scale, or use the one gram slider, until the trays on

both sides are level. Because this connotes careful, precise,

scientifically accurate results, it is a comforting metaphor for

judicial work. But unlike weighing potassium bromide and

potassium ferricyanide in a traditional darkroom, our “weigh-

ing” is done without a scale, without the little brass weights,

and without a substance to weigh that has any weighable

mass.

Nor is it easy to decide how many metaphorical grams

should go on the metaphorical scale when we pretend to

weigh conflicts of interest. The misleading precision of the

metaphor is indeed a serious concern, because of the special

protection the statute gives to insurance companies against

23

Id. at 1646.

24

Id. at 1651.

25

Id. (citation and quotation omitted).

SALOMAA v. HONDA LONG TERM DISABILITY 3205

claims. An insurance company that approaches claims-

handling unfairly in an ERISA plan may have an incentive to

be more unfair than, say, a life insurer or auto-liability

insurer, because it cannot be subjected to the punitive dam-

ages for bad faith that are the bogeymen of insurance compa-

nies in those fields.26 Usually the record does not disclose an

insurance company’s claims-handling history in other cases or

its internal directives to claims managers about how to evalu-

ate claims. Thus we are ordinarily ignorant of much of what

we are supposed to “weigh.” For all we know, the claims

administrator evaluating Salomaa’s claim would be voted for

promotion based on the percentage of claims rejected, or had

formed a personal opinion (or her boss had) that all chronic

fatigue syndrome claims were fraudulent.

Where, as in this case, the plan gives the administrator dis-

cretion, and the administrator has a conflict of interest, we are

to judge its decision to deny benefits to evaluate whether it is

reasonable. Reasonableness does not mean that we would

make the same decision. We must judge the reasonableness of

the plan administrator skeptically where, as here, the adminis-

trator has a conflict of interests. Even without the special

skepticism we are to apply in cases of conflict of interest, def-

erence to the plan administrator’s judgment does not mean

that the plan prevails. “Deference” is not a “talismanic

word[ ] that can avoid the process of judgment.”27 The con-

flict of interest requires additional skepticism because the plan

acts as judge in its own cause.

[3] The meaning of “abuse of discretion” is elucidated in

our en banc decision in United States v. Hinkson.28 There we

held that the test for abuse of discretion in a factual determi-

nation (as opposed to legal error) is whether “we are left with

a definite and firm conviction that a mistake has been com-

26

Cf. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).

27

Glenn, 128 S. Ct. at 2352.

28

585 F.3d 1247 (9th Cir. 2009) (en banc).

3206 SALOMAA v. HONDA LONG TERM DISABILITY

mitted,” and we may not merely substitute our view for that

of the fact finder.29 To do so, we consider whether application

of a correct legal standard was “(1) illogical, (2) implausible,

or (3) without support in inferences that may be drawn from

the facts in the record.”30 That standard makes sense in the

ERISA context, so we apply it, with the qualification that a

higher degree of skepticism is appropriate where the adminis-

trator has a conflict of interest.

B. Reasonableness of the denial.

In this case, the plan abused its discretion. Its decision was

illogical, implausible, and without support in inferences that

could reasonably be drawn from facts in the record, because:

(1) every doctor who personally examined Salomaa con-

cluded that he was disabled; (2) the plan administrator

demanded objective tests to establish the existence of a condi-

tion for which there are no objective tests; (3) the administra-

tor failed to consider the Social Security disability award; (4)

the reasons for denial shifted as they were refuted, were

largely unsupported by the medical file, and only the denial

stayed constant; and (5) the plan administrator failed to

engage in the required “meaningful dialogue”31 with Salomaa.

[4] At least four physicians examined Salomaa personally,

as well as two psychologists who personally administered

tests of Salomaa’s cognitive processing and a test to rule out

malingering. Every one of them concluded, often in dramatic

language, that Salomaa was totally disabled by his physical

condition. Not a single physician who actually examined

Salomaa concluded otherwise. The only documents with an

“M.D.” on the signature line concluding that he was not dis-

abled were by the physicians the insurance company paid to

29

Id. at 1262 (citation and quotation omitted).

30

Id. (citation and quotation omitted).

31

Booton v. Lockheed Med. Ben. Plan, 110 F.3d 1461, 1463 (9th Cir.

1997).

SALOMAA v. HONDA LONG TERM DISABILITY 3207

review his file. They never saw Salomaa. Salomaa’s lawyer

wrote to the plan, offering to make Salomaa available for

examination by its physicians. The administrator did not even

respond to this offer. Thus the plan not only did not have its

physicians examine Salomaa, but also rejected the opportunity

to do so. An insurance company may choose to avoid an inde-

pendent medical examination because of the risk that the phy-

sicians it employs may conclude that the claimant is entitled

to benefits. The skepticism we are required to apply because

of the plan’s conflict of interests requires us to consider this

possibility in this case. The medical record by physicians who

actually examined Salomaa is entirely one sided in favor of

Salomaa’s claim. The plan rejected its opportunity to see if

there was another side.

The plan’s reasons for denial shifted, as old reasons, proved

erroneous, were replaced by new ones. The initial denial

emphasized that there were “no positive physical findings.” It

mistakenly said that there was no weight loss, even though

Salomaa had lost 14% of his body weight over a six-month

period. Expanding upon the “no physical findings” reason, the

denial said that “thyroid, calcium, albumin, serum electrolytes

and CBC results are normal.” Likewise the final denial

emphasized Salomaa’s normal objective findings, and that

there was “no underlying condition, such as cancer or HIV

disease” to explain his fatigue or weight loss. These reasons

were illogical, because such objective measures as blood tests

are used to rule out alternative diseases, not to establish the

existence of chronic fatigue syndrome.

[5] There is no blood test or other objective laboratory test

for chronic fatigue syndrome. As we said in Friedrich v. Intel

Corp., the condition “does not have a generally accepted ‘dip-

stick’ test” and “[t]he standard diagnosis technique for

[chronic fatigue syndrome] includes testing, comparing symp-

toms to a detailed Centers for Disease Control list of symp-

toms, excluding other possible disorders, and reviewing

3208 SALOMAA v. HONDA LONG TERM DISABILITY

thoroughly the patient’s medical history.”32 Salomaa’s physi-

cians explained this to the plan administrator, but were evi-

dently ignored, as was the Center for Disease Control

definition provided to the administrator:

The chronic fatigue syndrome is a clinically defined

condition (1-4) characterized by severe disabling

fatigue and a combination of symptoms that promi-

nently features self-reported impairments in concen-

tration and short-term memory, sleep disturbances,

and musculoskeletal pain. Diagnosis of the chronic

fatigue syndrome can be made only after alternative

medical and psychiatric causes of chronic fatiguing

illness have been excluded. No pathognomonic signs

or diagnostic tests for this condition have been vali-

dated in scientific studies (5-7); moreover no defini-

tive treatments for it exist (8).

The plan administrator issued a “Coverage Position” paper for

chronic fatigue syndrome acknowledging that there are no

objective tests for it, and adopting the Center for Disease

Control criteria:

The multiple symptoms of [chronic fatigue syn-

drome], which are seen in numerous other condi-

tions, make it a difficult condition to diagnose.

Therefore, diagnosis is made by exclusion of other

conditions.

...

Despite extensive research, the etiology of [chronic

fatigue syndrome] is unknown.

...

32

Friedrich v. Intel Corp., 181 F.3d 1105, 1112 (9th Cir. 1999).

SALOMAA v. HONDA LONG TERM DISABILITY 3209

In order to receive a diagnosis of [chronic fatigue

syndrome], a patient must meet the following two

criteria:

• The patient must have clinically evaluated, unex-

plained persistent or relapsing chronic fatigue

that is of new or definite onset (i.e., not lifelong),

is not the result of ongoing exertion, is not sub-

stantially alleviated by rest, and results in sub-

stantial reduction in previous levels of

occupational, educational, social, or personal

activities.

• The patient must have concurrent occurrence of

four or more of the following symptoms: substan-

tial impairment in short-term memory or concen-

tration; sore throat; tender lymph nodes; muscle

pain; multi-joint pain without swelling or red-

ness; headaches of a new type, pattern, or sever-

ity; unrefreshing sleep; and post-exertional

malaise lasting more than 24 hours. These symp-

toms must have persisted or recurred during six

or more consecutive months of illness and must

not have predated the fatigue.

There are no specific diagnostic studies (i.e., labora-

tory, radiography, psychosomatic or other testing)

or physical findings that are specific to the diagnosis

of [chronic fatigue syndrome]. Diagnosis of this syn-

drome is by exclusion of other underlying diseases.

(emphasis added)

[6] Salomaa’s medical documentation established that he

met the criteria specified by the Center for Disease Control

and CIGNA’s own position paper. The plan administrator

never claimed that he did not. In its brief, the plan argues not

that Salomaa failed to meet CIGNA’s diagnostic criteria, but

that the criteria should be ignored, because the “Coverage

3210 SALOMAA v. HONDA LONG TERM DISABILITY

Position” was drafted by CIGNA Health Care, a “wholly dif-

ferent entity” from Life Insurance Company of North Amer-

ica, and was issued after the final denial. The first reason is

frivolous, because a different part of the brief concedes that

Life Insurance Company of North America is a wholly owned

subsidiary of CIGNA, and the plan administrator’s denials are

all written on CIGNA stationary, stating that they come from

“CIGNA Disability Management Solutions.” As for timing,

the parties were still engaged in a dialogue after the final

denial, and the CIGNA position is nothing new, just a restate-

ment of the previously issued Center for Disease Control

diagnostic criteria. As we said in dicta in a fibromyalgia case,

“if the administrator had said, ‘we will not accept fibromyal-

gia as a diagnosis unless you present objective evidence of it

such as positive findings on x-rays,’ she would have been

demanding what cannot exist . . . .”33 We now establish as

holding what was then dicta, that conditioning an award on

the existence of evidence that cannot exist is arbitrary and

capricious.

[7] The plan’s reasons for denial were shifting and incon-

sistent as well as illogical. The initial denial says that there

were “no specific serial descriptions of appearance or physical

signs consistent with chronic fatigue syndrome,” but the final

denial omits any mention of physicians’ observations, because

the physicians’ letters to CIGNA are replete with dramatic

descriptions of their observations of Salomaa’s appearance

and physical condition. About the only thing that stays the

same from the initial denial to the final denial is the irrelevant

emphasis on absence of objective evidence such as blood

tests.

One can understand the frustration of disability plan admin-

istrators with claims based on such diseases as chronic fatigue

33

Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d

869, 877 (9th Cir. 2004), overruled in part on other grounds by Abatie v.

Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir. 2006).

SALOMAA v. HONDA LONG TERM DISABILITY 3211

syndrome and fibromyalgia. Absence of objective proof

through x-rays or blood tests of the existence or nonexistence

of the disease creates a risk of false claims. Claimants have

an incentive to claim symptoms of a disease they do not have

in order to obtain undeserved disability benefits. But the

claimants are not the only ones with an incentive to cheat. The

plan with a conflict of interests also has a financial incentive

to cheat. Failing to pay out money owed based on a false

statement of reasons for denying is cheating, every bit as

much as making a false claim. The plan has no exception to

coverage for chronic fatigue syndrome, so CIGNA has taken

on the risk of false claims for this difficult to diagnose condi-

tion. Many medical conditions depend for their diagnosis on

patient reports of pain or other symptoms, and some cannot

be objectively established until autopsy. In neither case can a

disability insurer condition coverage on proof by objective

indicators such as blood tests where the condition is recog-

nized yet no such proof is possible.

[8] The Social Security Administration was persuaded that

Salomaa was indeed unable to work at any job in the national

economy, and awarded disability benefits to him. Its award

was provided to the plan administrator. Amazingly, the plan’s

initial and final denial letters do not even mention the Social

Security award. Social Security disability awards do not bind

plan administrators,34 but they are evidence of disability. Evi-

dence of a Social Security award of disability benefits is of

sufficient significance that failure to address it offers support

that the plan administrator’s denial was arbitrary, an abuse of

discretion.35 Weighty evidence may ultimately be unpersua-

sive, but it cannot be ignored.

34

Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 635 (9th Cir.

2009).

35

Id. (“While ERISA plan administrators are not bound by the SSA’s

determination, complete disregard for a contrary conclusion without so

much as an explanation raises questions about whether an adverse benefits

determination was ‘the product of a principled and deliberative reasoning

process.’ In fact, not distinguishing the SSA’s contrary conclusion may

indicate a failure to consider relevant evidence.” (internal quotations and

citations omitted).).

3212 SALOMAA v. HONDA LONG TERM DISABILITY

[9] The continual shifting of the plan’s grounds for denial

also suggest abuse of discretion. The initial denial gave

absence of weight loss as a reason. The final denial gave

absence of cancer or HIV disease as a reason to explain the

previously ignored 14% weight loss. The initial denial says

“no major depression” and “your depression has improved,”

the final denial does not mention depression (perhaps because

ruling out depression by administering serotonin reuptake

inhibitors without effect was among the grounds for the

chronic fatigue syndrome diagnosis). The initial denial notes

Salomaa’s physician’s report of “decreased memory” but

absence of “formal mental status tests to quantify any specific

abnormalities of cognitive functioning,” the final denial says

that even though the specific cognitive testing “shows some

abnormalities, it does not support that those deficits were

present during the elimination period” (even though, in com-

bination with the consistent symptom reports and observa-

tions of others during the elimination period, the tests did

indeed tend to show that the deficits were present throughout

the elimination period).

[10] The plan also failed to conform to the claims proce-

dure required by statute and regulation. The statute entitles the

claimant to “full and fair” review of a denial.36 The regula-

tions contain many requirements that the plan failed to meet,

among them that it explain, upon denial, any “additional

information needed,”37 and that it give the claimant “reason-

able access to, and copies of all, documents, records, and

other information relevant to the claimant’s claim for bene-

fits.”38 The review was not “fair,” as the statute requires,

because the plan did not give Salomaa and his attorney and

physicians access to the two medical reports of its own physi-

cians upon which it relied, among other reasons. In addition,

the plan administrator denied the claim largely on account of

36

29 U.S.C. § 1133.

37

29 C.F.R. § 2560.503-1(f)(3).

38

29 C.F.R. § 2560.503-1(h)(2)(iii).

SALOMAA v. HONDA LONG TERM DISABILITY 3213

absence of objective medical evidence, yet failed to tell Salo-

maa what medical evidence it wanted. Where it did tell him,

such as “no formal clinical mental status tests,” Salomaa pro-

vided the evidence. The initial denial said he should provide

“x-rays, CT, MRI reports, etc. that support your physician’s

assessment,” but did not tell him what x-rays etc. it wanted.

The request was of course absurd, since x-rays, computerized

tomography, and magnetic resonance imaging are not used to

diagnose chronic fatigue syndrome. A layman might be

fooled by this statement of reasons into thinking he left some-

thing relevant out of his claim package, but fooling someone

unfamiliar with the medical terms with irrelevant medical

mumbo jumbo violates the statutory duty to write a denial “in

a manner calculated to be understood by the claimant.”39

[11] The plan evidently based its denial in large part on

review of Salomaa’s file by two physicians, one for the first

denial, another for the final denial. They both wrote their

appraisals for the plan administrator. Yet the plan failed to

furnish their letters to Salomaa or his lawyer. The regulation,

quoted above, requires an ERISA plan to furnish “all docu-

ments, records, and other information relevant for benefits to

the claimant.”40 A physician’s evaluation provided to the plan

administrator falls squarely within this disclosure requirement.41

The disclosure requirement serves the purpose of facilitating

what the regulation also requires, providing claimants “the

opportunity to submit written comments, documents, records,

and other information relating to the claim for benefits.”42 Had

the plan met its duty of providing copies of its physicians’

39

See Saffon v. Wells Fargo & Company Long Term Disability Plan,

522 F.3d 863, 870 (9th Cir. 2008) (citation and quotation omitted).

40

29 C.F.R. § 2560.503-1(h)(2)(iii).

41

See Abram v. Cargil, Inc., 395 F.3d 882, 886 (8th Cir. 2005) (plan did

not conduct “full and fair review” of where claimant was not provided

access to doctor’s report that served as the basis for the plan’s denial of

benefits until after the plan had made its final decision)

42

29 C.F.R. § 2560.503-1(h)(2)(ii).

3214 SALOMAA v. HONDA LONG TERM DISABILITY

evaluations, then Salomaa’s treating physicians could have

provided such comments and performed such additional

examinations and tests as might be appropriate. By denying

Salomaa the disclosure and fair opportunity for comment, the

plan denied him the statutory obligation of a fair review pro-

cedure.

The administrator’s procedural violations are similar to

those in Saffon v. Wells Fargo & Company Long Term Dis-

ability Plan43 and Boonton v. Lockheed Medical Benefit Plan.44

There, as here, the administrator did not provide material suf-

ficient to meet the requirement of “meaningful dialogue.” We

held in those cases, where the denials were based on absence

of some sort of medical evidence or explanation, that the

administrator was obligated to say in plain language what

additional evidence it needed and what questions it needed

answered in time so that the additional material could be pro-

vided. An administrator does not do its duty under the statute

and regulations by saying merely “we are not persuaded” or

“your evidence is insufficient.” Nor does it do its duty by

elaborating upon its negative answer with meaningless medi-

cal mumbo jumbo. In this case, the skeptical look required by

us in a case of a conflicted administrator requires us to con-

clude that the administrator acted arbitrarily and capriciously,

both procedurally and substantively, thereby abusing its dis-

cretion in the denial of Salomaa’s claim.

III. Conclusion.

[12] The plan violated its procedural obligations and vio-

lated its substantive obligation by abusing its discretion and

judging the disability claim arbitrarily and capriciously. Our

skepticism of its approach is heightened because of its con-

flict of interests. Where the plan administrator has a conflict

of interests, review for abuse of discretion is not as deferential

43

522 F.3d 863 (9th Cir. 2008).

44

110 F.3d 1461 (9th Cir. 1997).

SALOMAA v. HONDA LONG TERM DISABILITY 3215

as abuse of discretion review of district court or administra-

tive agency decisions. On the record it had, the plan was obli-

gated to award benefits. Accordingly, we REVERSE and

REMAND with instructions to direct an award of benefits.

HALL, Circuit Judge, dissenting:

Samuel Salomaa appeals the district court’s decision

affirming the administrative denial of his ERISA plan disabil-

ity benefits for Chronic Fatigue Syndrome. The majority

holds that the plan abused its discretion; I disagree. Therefore,

I respectfully dissent.

I.

I readily agree with the majority that the standard of review

applied to the plan’s denial is abuse of discretion with some

degree of skepticism. Opinion at 3205-06. The abuse of dis-

cretion standard is typically a deferential one, see, e.g., Conk-

right v. Frommert, 130 S. Ct. 1640, 1646 (2010), but this

deference is often muted when an ERISA plan administrator

both administers and funds its plan. See Saffon v. Wells Fargo

& Co. Long Term Disability Plan, 522 F.3d 863, 868 (9th Cir.

2008). Although this standard’s dualism between skepticism

and deference may seem strange, it is the proper standard and

must be applied carefully. Suffice to say, as the majority aptly

notes, we evaluate the plan’s denial for reasonableness. Opin-

ion at 3205.

But it is in this evaluation where I depart from my col-

leagues. The majority highlights several points in support of

its holding that the plan abused its discretion. I address each

in turn.

3216 SALOMAA v. HONDA LONG TERM DISABILITY

II.

A.

The majority first draws attention to the fact that the doc-

tors who personally examined Salomaa found that he was dis-

abled. Opinion at 3206-07. Those doctors who found

otherwise, the majority explains, did not personally meet with

Salomaa. Id. The majority then derives importance from this

fact, suggesting (without outright stating) that doctors who

personally examine claimants are somehow more reliable than

doctors who do not personally examine claimants. See id. It

then implies that the plan’s decision not to personally exam-

ine Salomaa evinces an abuse of discretion. See id. It is

unclear from the opinion why the majority adopts these views,

as it provides no clear reason why a doctor who personally

examined Salomaa should be given more authority or atten-

tion than one who didn’t, and no clear reason why a lack of

personal examination precipitates an abuse of discretion. See

id. Perhaps no reasons were given because no reasons exist.

Consider Black & Decker Disability Plan v. Nord, 538 U.S.

822 (2003), an ERISA case in which the Supreme Court

vacated a judgment of this court. In holding that the “treating

physician rule” does not apply to ERISA plans, a unanimous

Court stated, “Nothing in [ERISA] suggests that plan admin-

istrators must accord special deference to the opinions of

treating physicians. Nor does [ERISA] impose a heightened

burden of explanation on administrators when they reject a

treating physician’s opinion.” Id. at 831. The Nord opinion

seems sufficient to dispel any notion of treating physician

superiority, so it is puzzling why the majority nevertheless

chastises the plan for not personally examining Salomaa.

In fact, I’ve found no published Ninth Circuit case stating

that “personal examination” dictates whether an ERISA plan

administrator abused its discretion. The Nord Court indicates

why: “[T]he assumption that the opinions of a treating physi-

SALOMAA v. HONDA LONG TERM DISABILITY 3217

cian warrant greater credit than the opinions of plan consul-

tants may make scant sense when, for example, the

relationship between the claimant and the treating physician

has been of short duration, or when a specialist engaged by

the plan has expertise the treating physician lacks.” Id. at 832.

Given Nord, the majority’s emphasis on personally examin-

ing physicians is misplaced. I do not think the plan’s lack of

personally examining physicians indicates that it abused its

discretion in denying Salomaa’s claim.

B.

Next, the majority finds an abuse of discretion in that “the

plan administrator demanded objective tests to establish the

existence of a condition for which there are no objective

tests.” Opinion at 3206. Though I agree with the majority that

a plan administrator ought not be able to condition an award

on the existence of evidence that is impossible to produce, I

disagree with its conclusion that there was no objective evi-

dence of Salomaa’s disability. See Opinion at 3210.

Salomaa did, ultimately, provide the plan with objective

evidence of his disability in the form of neuropsychological

testing, but because this evidence was acquired after the elim-

ination period, the plan administrator found it inadequate to

prove Salomaa’s condition. This neuropsychological testing

showed deficiencies in Salomaa’s mental activity—a known

symptom of CFS. And even though this evidence was gath-

ered at the wrong time, its very existence demonstrates that

objective tests can be used to prove disability from CFS, and

that Salomaa could have proven his disability with objective

evidence.

But don’t take my word for it. Just ask Salomaa himself. In

Salomaa’s opening brief, he admits that the belated neuropsy-

chological testing “objectively proved the existence of” his

3218 SALOMAA v. HONDA LONG TERM DISABILITY

disability caused by CFS.1 Appellant’s Br. at 31. So it appears

that the majority has rejected the factual understandings of

both parties by deciding that no objective evidence of Salo-

maa’s condition could have been produced.

The majority gives only superficial attention to the neurop-

sychological testing that everyone but it views as objective

evidence of Salomaa’s disability. It uses this testing to color-

fully describe how debilitating Salomaa’s condition is, noting

that the “battery of intelligence and other tests” revealed that

Salomaa’s IQ was average, “which is fine for many people

but shockingly low for a Harvard man with a career in com-

puters.” Opinion at 3198. Now I’m no “Harvard man,” and I

can barely operate an iPhone let alone pursue a career in com-

puters, but I don’t understand why the majority at once boasts

how meaningful the neuropsychological testing is—having

revealed in Salomaa “ ‘the hallmark cognitive symptoms’ ” of

CFS—yet later dismisses the testing as merely “bad perfor-

mance on an intelligence test” that could “be faked.” See

Opinion at 3198-99, 3210.

I also find it peculiar that the majority speculates that Salo-

maa could be faking his neuropsychological testing results.

This seems to be the only time that the majority acknowledges

that Salomaa might be faking his disability. The majority

wields no similar skepticism when considering the other

aspects of Salomaa’s claim, such as the mountains of self-

reported symptoms that prompted the plan’s desire for objec-

tive evidence in the first place. Furthermore, the assertion that

Salomaa may have faked this testing seems to conflict with

the majority’s own description of the testing, “which showed

‘a valid profile and that [Salomaa] was putting forth adequate

effort.’ ” Opinion at 3198.

1

In full, Salomaa’s statement reads: “Why would CIGNA, if it was act-

ing in good faith, ignore the testing which objectively proved the existence

of symptoms that Mr. Salomaa had complained about for months?” Appel-

lant’s Br. at 31. The answer, as noted, is because this testing was per-

formed after the elimination period.

SALOMAA v. HONDA LONG TERM DISABILITY 3219

Finally, I find the majority’s citation to the plan administra-

tor’s parent company’s position paper to be unpersuasive.

This paper states that “[t]here are no specific diagnostic

studies . . . or physical findings that are specific to the diagno-

sis of CFS.” ER 158-59. This is unhelpful, however, because

this position paper says nothing about the existence—or lack

thereof—of objective evidence of CFS-caused disability. See

id. Indeed, the majority’s quoted material only discusses “spe-

cific” studies and findings rather than “objective” studies and

findings, and it pertains to establishing a diagnosis rather than

disability. The majority therefore conflates the notions of spe-

cific and objective (and diagnosis and disability) while ignor-

ing the admissions in Salomaa’s own brief.

For these reasons, the plan’s demand for objective evidence

of Salomaa’s disability does not indicate that the plan abused

its discretion.

C.

The majority surmises that “the administrator failed to con-

sider the Social Security disability award.” Opinion at 3206.

I see nothing in the record to support this finding.

The plan administrator’s failure to mention the Social

Security award in its correspondence with Salomaa does not

mean the plan administrator ignored the award altogether. In

fact, there is no proof that the administrator failed to consider

the award, just as there is no proof that it closely and deliber-

ately studied the award. In short, the record is silent as to what

the administrator did with the award. Instead of treating this

fact as inconclusive, the majority assumes that it demonstrates

an abuse of discretion.2

2

This assumption is worsened by the facts that the plan administrator

was not bound by the Social Security award whatsoever, see Montour v.

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

the standard used to determine a Social Security award differs considera-

3220 SALOMAA v. HONDA LONG TERM DISABILITY

D.

The majority faults the plan administrator for failing to

meaningfully communicate with Salomaa. Opinion at 3206.

While it is a close question, I agree with the majority that the

plan administrator failed to engage Salomaa in a meaningful

dialogue. However, this failure should lessen the discretion

this panel accords to the plan and should not itself substantiate

a conclusion that the plan abused its discretion.

The majority compares the administrator’s conduct to the

violations addressed in Booton v. Lockheed Medical Benefit

Plan, 110 F.3d 1461 (9th Cir. 1997) and Saffon v. Wells

Fargo & Co. Long Term Disability Plan, 522 F.3d 863 (9th

Cir. 2008). However, the failures in communication in Booton

and Saffon are far worse than those alleged in the present

case. In Booton, a plan administrator denied a claim “without

explanation” and without requesting “necessary—and easily

obtainable—information.” See Booton, 110 F.3d at 1463-64.

In Saffon, a plan administrator’s communications included

late test requests, self-contradictory statements, failures to tell

the insured about discussions with her doctor, and omissions

of important language from doctors’ reports. See Saffon, 522

F.3d at 871, 873 & n.5.

The plan administrator’s communication in Salomaa’s case,

though faulty, was much less severe. For instance, it provided

Salomaa with a series of denial letters that described the med-

ical records at issue, it specifically addressed most of Salo-

maa’s evidence, it contrasted Salomaa’s reported activities

with his alleged symptoms, and it outlined other information

bly from an ERISA benefits standard. See, e.g., Nord, 538 U.S. at 832-33

(noting differences between the two standards, including the fact that the

former allows for more reliance on treating physicians’ opinions, and the

latter is especially sensitive to the terms and design of each particular

plan).

SALOMAA v. HONDA LONG TERM DISABILITY 3221

that Salomaa could provide. Because the administrator’s com-

municative failures are not nearly as egregious as the viola-

tions in Booton and Saffon, I would not analogize those cases

to this case, and I do not view the administrator’s failure to

meaningfully communicate as evidence of an abuse of discre-

tion.

Any remaining problems with the plan administrator’s

approach to Salomaa’s claim are minor and, in my view, they

do not themselves demonstrate an abuse of discretion.

III.

The standard of review is important in this case, and it

requires this panel to weigh carefully the plan administrator’s

conflict of interest when reviewing the plan’s denial for abuse

of discretion. In my view, the points highlighted by the major-

ity do not demonstrate that the plan abused its discretion, even

in light of the conflict of interest weighing against the plan.

The majority cleverly observes that “weighing” is only a

metaphor, and that judicial “weighing” is much more difficult

than the “weighing” one might do in a traditional darkroom

with little brass weights and literal scales. Opinion at 3204. I

agree. Generally speaking, the “weighing” metaphor is mis-

leading as it suggests that judicial balancing is an extremely

precise—even mathematical—exercise. It is not. However,

today’s decision demonstrates that the metaphor of darkroom

weighing is not totally amiss. To arrive at today’s decision,

the majority had to overlook binding precedent and turn a

blind eye to inconvenient facts—almost as though it were

looking at nothing at all, in a room of near total darkness.

3222 SALOMAA v. HONDA LONG TERM DISABILITY

I respectfully dissent.3

3

Even if I agreed with the majority that the plan administrator abused

its discretion, I would not reverse and remand with instructions to direct

an award of benefits. To qualify for benefits, Salomaa has to prove (1) that

he suffers from a sickness or injury, and (2) that his sickness or injury ren-

ders him “disabled.” See ER 125, 150. Both of these elements—diagnosis

and disability—must be established. The district court affirmed the plan’s

denial of benefits based on Salomaa’s failure to prove disability, and the

court set aside the diagnosis issue, as it was “not well-suited for judicial

determination.” Salomaa v. Honda Long Term Disability Plan, 542 F.

Supp. 2d 1068, 1076-77 (C.D. Cal. 2008). Therefore, the diagnosis issue

remains unresolved. Were I to find an abuse of discretion, I would remand

with instructions to conduct further proceedings regarding the diagnosis

issue.