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

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.