Decovich v. Anthem Life Insurance Ex Rel. Venetian Insurance Package Long-Term Disability Plan

FILED
NOT FOR PUBLICATION JAN 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIAE DECOVICH, No. 12-16803
Plaintiff - Appellant, D.C. No. 2:11-cv-00872-JCM-
CWH
v.
ANTHEM LIFE INSURANCE MEMORANDUM*
COMPANY, as Claims Administrator on
behalf of Venetian Insurance Package
Long-Term Disability Plan,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted December 9, 2014
San Francisco, California
Before: O’SCANNLAIN, FISHER and HURWITZ, Circuit Judges.
Appellant Miae Decovich appeals the district court’s grant of summary
judgment in favor of Anthem Life Insurance Company. We reverse and remand
for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Under de novo review, there is a triable issue of fact as to whether
Decovich was disabled under the terms of the disability policy. See Kearney v.
Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc). Although the
district court correctly articulated the standard of review, it proceeded to analyze
whether the denial of Decovich’s disability claim was reasonable. Instead, it was
required to “undertake an independent and thorough inspection of [the]
administrator’s decision.” Silver v. Exec. Car Leasing Long-Term Disability Plan,
466 F.3d 727, 733 (9th Cir. 2006).
While neither of Custom Disability Services (CDS)’s reviewing physicians
opined that Decovich’s fibromyalgia was disabling, other evidence submitted by
Decovich supported her disability claim. A physical evaluation submitted by
Decovich’s primary care physician, Dr. Tsai, notes Decovich’s experience of pain
is frequently severe enough to interfere with attention and concentration. It further
observes she can handle only 15 minutes of standing or walking about at a time,
requires a cumulative resting time of two hours, and can only use her hands
“occasionally.”
Decovich also submitted evidence that, as a dealer, she was required to
“have the physical stamina to be able to stand and deal for long periods of time,”
“withstand prolonged standing, stretching, bending and kneeling without
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restriction” and “maintain physical stamina.” Given this job description, based on
Dr. Tsai’s physical assessment, Decovich could not fulfill her job requirements as a
card dealer. Similarly, Decovich’s rheumatologist, Dr. Jianu, opined that she was
unable to perform her current occupation. Although not all of Decovich’s treating
physicians opined that she suffered functional limitations, Dr. Tsai’s evaluation
and Dr. Jianu’s opinion were sufficient to create a material dispute of fact.1
Summary judgment in Anthem’s favor was thus improper. See Kearney, 175 F.3d
at 1095.
2. The eight-page letter from CDS denying Decovich’s request for
reconsideration of the denial of her clam for benefits includes a section entitled
“Additional observations.” The section recites that several doctors had
“recommended psychiatric evaluation [or] . . . treatment,” and then states:
None of the medical documentation provided to us
indicates that you ever sought the recommended
psychiatric evaluation and/or treatment. In the absence
of behavioral health or psychiatric treatment notes and/or
evaluations, there is insufficient file documentation to
submit for review by a behavioral health specialist.
1
The dissent notes that Dr. Tsai deferred assessment of work restrictions and
limitations to Decovich’s other treatment providers. What Dr. Tsai meant by that
deferral is disputed. Regardless, Dr. Tsai’s opinion regarding Decovich’s
functional impairment is consistent with that of Dr. Jianu, the other treatment
provider Dr. Gendron contacted, who similarly opined that Decovich was unable to
perform her current job.
3
The statement does not “tack[] on a new reason for denying benefits.”
Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 974 (9th Cir. 2006) (en banc).
Decovich never claimed to be disabled based on a “mental condition,” or “mental
illness,” so CDS’s conclusion that there was no warrant to explore those conditions
could not have been a reason for denying benefits. Thus, on remand, review
should be on the record that was before the administrator. Id.
REVERSED AND REMANDED.
4
FILED
Decovich v. Anthem Life Insurance Company, No. 12-16803 JAN 28 2015
MOLLY C. DWYER, CLERK
O’SCANNLAIN, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
I respectfully dissent from part one of the disposition. Although the district
court uses the word “reasonable” when analyzing CDS’s denial of Decovich’s
claim, it expressly states in the preceding lines of the order that it is engaging in de
novo review and rejects the “arbitrary and capricious” standard. The district court
then proceeds to engage in a thorough de novo review, concluding that Decovich
failed to meet her burden of showing a factual dispute as to whether she established
eligibility for disability benefits under the policy.
Moreover, such a conclusion was appropriate. In light of the overwhelming
evidence to support the finding that Decovich failed to establish functional
impairment—including (i) medical examinations and tests that showed no physical
abnormalities, (ii) reports from Decovich’s treating specialists, including Dr. Jianu,
indicating that Decovich was not functionally impaired, (iii) Dr. Tsai’s deferral of
his assessment of Decovich’s work-related restrictions and limitations to
Decovich’s other treatment providers, and (iv) Dr. Gendron’s observation that
individuals with fibromyalgia are often encouraged to engage in physical
activity—there is no genuine issue of material fact as to whether CDS erred in
denying Decovich’s disability claim.
Thus, because the district court engaged in de novo review of CDS’s denial
of Decovich’s claim and appropriately concluded that no material dispute of fact
remains, I would affirm the district court’s grant of summary judgment in favor of
Anthem.
2