beyond the mere fact of the apparent conflict, tending to show that the
fiduciary's self-interest caused a breach of the administrator's
fiduciary obligations to the beneficiary. If not, we apply our
traditional abuse of discretion review. On the other hand, if the
beneficiary has made the required showing, the principles of trust law
require us to act very skeptically in deferring to the discretion of an
administrator who appears to have committed a breach of fiduciary duty."
Atwood, 45 F.3d at 1323. Where needed, that skepticism amounts to a de
novo standard of review. Id.
Since Atwood, the Ninth Circuit has only once addressed the
beneficiary's showing necessary to trigger the de novo standard. There,
the plan gave inconsistent reasons for its refusals to lift a limitation
in the plan; the court found that these inconsistent justifications by an
employer-run plan constituted "material, probative evidence that its
decision was affected by self-interest." Lang v. Long-Term Disability,
125 F.3d 794, 799 (9th Cir. 1997). Martin argues the record here displays
similar inconsistencies in the justifications for denial of his claim.
However, he has not pointed to any evidence in the record actually
supporting a factual conclusion to that effect.
C. Martin's Legal Claims
1. Improper Use of Non-Plan Standards
Martin claims that in denying his claim the plan administrator
improperly imposed at least two limitations outside of the plan in
reviewing his claim: (1) that "objective medical evidence" be provided to
support his claim, and (2) that Martin show he was unable to fulfil the
demands of a "sedentary" position. There is Ninth Circuit support for
finding an abuse of discretion where limitations not present in the plan
are used to deny coverage. In Saffle v. Sierra Pacific Power Co.,
85 F.3d 455 (9th Cir. 1996), plaintiff was denied disability coverage
because she was deemed to be able to perform work available for which she
was qualified, with accommodations. However, the plan language at issue
required that the participant be "completely unable to perform each and
every duty" of her position. After noting the inherent ambiguity in the
actual plan language, the Ninth Circuit found that the plan's
substitution of the available work limitation "effectively imposes a new
requirement for coverage." Id. at 459. The court thus found the plan's
denial to be arbitrary and capricious on that basis. However, the court
also found that the plan's interpretation of the "each and every duty"
language to mean all of the substantial and material duties of her
regular occupation a reasonable interpretation of the plan, even though
it was not based on the text. Id. at 460.
In Canseco v. Construction Laborers Pension Trust, 93 F.3d 600 (9th
Cir. 1996), plaintiff was denied retroactive payments of retirement
benefits based on the date of his application. While the plan made clear
that payments could only be made on a beneficiary's application, it did
not say, as the plan interpreted, that a delayed application acted as a
waiver of entitlement to the retroactive payments. Following Saffle, the
court found that interpreting the plan's application requirement as a
prohibition on the payment of retroactive benefits was an abuse of
discretion. "By retroactively denying benefits to a class of workers who
have indisputably earned them, the Trustees have, in effect, imposed on
those workers an additional requirement of eligibility: the submission of
an application for benefits. We reject such an additional requirement as
inconsistent with the terms of the CLPT plan, since nothing in the CLPT
plan makes an application a prerequisite for eligibility." Id. at 609.
On this basis, Martin challenges the bringing of the terms "objective
medical evidence" and "sedentary position" to bear on his claim.
However, neither of these terms have been used in a way as to limit the
plan's terms in the same manner as Saffle and Canseco. Instead, the terms
used were reasonable, and in fact necessary to give context to the plain
language of the plan. In that way, both terms are more similar to the
"substantial and material duties" requirement imposed in Saffle, 85 F.3d
at 459, which was held to be reasonable even though it was not present in
the plan language, than to the modifications identified as abusive of the
plan's discretion there and in Canseco.
This distinction makes sense, because the plan itself cannot reasonably
be expected to incorporate all of the terms salient to the determination
of a claim, nor can it be expected to define the tasks and details of
each plan beneficiary's job description. Ostensibly, the plan at issue
here also covers those beneficiaries who may have greater than sedentary
duties as well; therefore, the insertion of claim language customizing
the standard of review to Martin's sedentary job level would make no
sense, and would in fact disserve those with higher levels of activity in
their job duties. As a matter of logic, it would be impossible to review
plan language with respect to a claim without making some characterization
of the demands of the claimant's job tasks. Here, Continental's
occupational vocational specialist categorized Martin's position as
sedentary to light, following federal guidelines. Glass Decl., ¶
1-2. Martin has not challenged the correctness (or more saliently the
reasonableness) of this categorization, and the theoretical challenge is
alone not enough to support an abuse of discretion finding.
Framed otherwise, the plan's duties under ERISA are to discharge
administrative responsibilities "in accordance with the documents and
instruments governing the plan insofar as such documents and instruments
are consistent with the provision of ERISA." 29 U.S.C. § 1104
(a)(1)(D). Neither this statutory language nor the holdings of Canseco
and Saffle demand that plan administrators obtain all definitions from
the plan, only that such definitions are in accordance with the plan. The
real question, as Canseco and Saffle teach, is whether the use of terms
is reasonable, or instead unreasonably creates arbitrary distinctions
upon which claims with merit may be denied. Saffle shows that reasonable,
albeit non-textual characterizations of a standard to meet do not amount
to an abuse of discretion. As Martin's argument cuts too broadly, and the
record here is factually dissimilar from the linguistic departures cited
in Saffle and Canseco, his argument on this point fails.
2. Ailments Lacking Objective Etiologies
Martin's argument against the "objective medical evidence" standard has
another facet, relying on a Third Circuit case finding in a case of
chronic fatigue syndrome that a strict requirement of objective medical
showing of disability constituted an abuse of discretion. Mitchell v.
Eastman Kodak, 113 F.3d 433 (3d Cir. 1997). In Mitchell, plaintiff
submitted two doctors' opinions that he had chronic fatigue syndrome that
rendered him in the opinion of one doctor "100% disabled." Earlier
doctors' opinions that did not diagnose CFS were "indicative that those
doctors lacked the expertise to diagnose CFS. Nonetheless, and despite
the absence of any physician opinions questioning the CFS diagnoses, the
plan denied Mitchell's claim for a lack of "objective medical evidence."
The court found that this standard, which was not explicitly drawn from
plan language, was unreasonable in the context of a CFS claim. "Although
in some contexts it may not be arbitrary and capricious to require
clinical evidence of the etiology of allegedly disabling symptoms in
order to verify that there is no malingering, we conclude that it was
arbitrary and capricious to require such evidence in the context of this
Plan and CFS . . ." All that the Plan required was that Mitchell show
that he was in fact "disabled" as of June 26, 1989, and this he did
. . . Moreover, it was impermissible for the Administrator to imply an
additional "clinical evidence of etiology" requirement not specified in
the Plan document in the context of CFS. It is now widely recognized in
the medical and legal communities
that "there is no `dipstick' laboratory test for chronic fatigue
syndrome." Id. at 442-443. Thus, because the plan administrator imposed
an additional etiological requirement, and used it to deny Mitchell's
claim of a recognized disease with "no known etiology," an abuse of
discretion existed. Id.
Martin argues that post-polio syndrome, like CFS, is resistant to
etiological proof, and that the reasoning in Mitchell should apply to his
claim as well. However, on the other side of the ledger from Mitchell are
two district court cases in this Circuit finding the imposition of an
objective evidence requirement not to be an abuse of discretion, even
where, as here, the disability complained of is symptomatic and
subjective in nature.
In Voight v. Metropolitan Life Ins. Co., 28 F. Supp.2d 569 (C.D.Cal.
1998) (Morrow, J.), plaintiff suffered from acromegaly but was denied
coverage because of the absence of "objective evidence" that the malady
was disabling within the meaning of the plan. No "objective evidence"
limitation was present in the language of the plan. The court found that
imposition of that requirement was not an abuse of discretion. "It was
not unreasonable for MetLife to require objective evidence as `proof' of
total disability. Given that MetLife has discretionary authority to
construe the terms of the Plan, Voight must prove that MetLife's
interpretation of `Total Disability,' or its `proof' requirements, were
arbitrary and capricious. Voight has failed to meet her burden in that
regard." Id. at 578. Ultimately, the court found that the independent
medical evaluator's determination that total disability had not been
shown, despite conclusions of two treating physicians finding the
opposite, was not an abuse of discretion. Thus, because "reasonable minds"
could have accepted the conclusions underlying denial, the court would
not substitute its judgment for that of the plan. Id. at 580.
A year later, Jordan v. Northrop Grumman, 63 F. Supp.2d 1145 (C.D.Cal.
1999) (Collins, J.) reached a similar legal conclusion, on facts more
closely resembling those present here. There, plaintiff suffered from
fibromyalgia but was denied benefits on the alleged basis of the plan's
imposition of an "objective medical evidence" requirement. The court,
while taking factual issue with this characterization of the record,
analyzed the question addressed in Mitchell and Voight. "The harder
question is whether MetLife abused its discretion by finding that
Plaintiff had not provided sufficient `objective evidence' that she was,
in fact, totally disabled. There is some split of authority as to whether
requiring objective evidence constitutes an abuse of discretion where, as
here, the plan administrator has not indicated with particularity what
objective evidence could be supplied . . . But upon closer review of
these cases, it is apparent that although plans use the term `objective'
evidence, courts make their evaluation on the basis of whether an
applicant has presented sufficient evidence in general, subjective or
not." Id. at 1160. Jordan then makes a cogent comparison of the fact
scenario present in Mitchell (where the detailed and unanimous opinions
of plaintiff's practitioners found disabling CFS were countered only by
terse denials of coverage) with that in Voight (where conflicting
evaluations as to plaintiff's disability existed in the record, and the
plan explained its reasoning in favoring one diagnosis over another).
Jordan then moves to an examination of the record before it, and finds
three broad reasons for affirming the denial of coverage, even though
fibromyalgia, like Mitchell's CFS (and Martin's post-polio syndrome)
lacks an objective etiology. First, Jordan found that the plaintiff's own
admissions regarding the limitations placed on her activity by her
illness showed she was capable of activities "much more arduous than her
job requires." Id. at 1160. Second, the medical opinions were equivocal
as to whether Jordan's condition actually affected her ability to perform
a sedentary job. Id. at 1161. Third, the plan's denial came on
conflicting and cryptic reports
from her treating physicians, and was offset by a detailed evaluation of
her condition done by the plan's independent expert. Id.
All of the factors identified in Jordan find some resonance on this
record. Martin has admitted that he is capable of a range of activities
encompassing his sedentary job; the fact that those activities cause him
subjective (or even medically objective) pain does not bring it to the
level of a disability. Second, Martin's treating physicians differ on the
actual course of treatment and the severity of his syndrome. In fact,
there are conflicting opinions as to whether he even has the syndrome;
Drs. Kasavin and Wakasa differ on that point, Dr. Roberts' third opinion
relies exclusively on Dr. Wakasa's for his amended diagnosis, and Dr.
Davis' opinion suggests at least sedentary activity is possible if not
therapeutic. Third, the plan thrice explicated its denial in a consistent
manner, twice providing a detailed analysis by its independent
evaluator. Offsetting those detailed denials is the absence of empirical
or etiological diagnoses of post-polio syndrome, and the compete absence
of any reasoned opinion finding Martin disabled under the plan's
definition. In fact, even the most severe diagnoses do not indicate why
Martin's level of activity falls below that required for, and permitted
by, a sedentary position.
Jordan's most compelling teachings are its factually-based distinction
between Mitchell and Voight, and its explanation of the differing
outcomes in those cases as being based on the overall persuasiveness,
thoroughness and unanimity of the record, not its "subjective" or
"objective" nature. With that framework in mind, the record here reflects
no single, clear conclusion as to Martin's diagnosis or more importantly
his disability status. The selected portions of the record favoring him
are contradicted by other medical opinion, and even the opinions most
favorable to Martin taken alone do not mandate a finding of total
disability. On that record, a detailed finding siding with some treating
physicians' opinions over others is not an abuse of discretion, and does
not warrant the Court's substitution of its judgment for that of the
On this record, the abuse of discretion standard applies. Martin has
failed to demonstrate the application of the Atwood self-interest
standard, as his claims of inconsistent bases fall to resonate in the
record. Martin's major legal argument on the record also fails. A
requirement of objective medical evidence is not an unreasonable
requirement, nor is the characterization of Martin's job as sedentary
erroneous, or even inconsistent with Martin's own representation in the
record. Martin's point that post-polio syndrome is ultimately resistant
to empirical testing does not save him on this record, as even if it
were, the diagnoses made by Martin's own treating physicians do not
provide that Martin is unable to meet the demands of a sedentary
position. At best, they provide that the preferable course would be to
cease office work entirely, but even that conclusion is not unanimous.
Because the diagnoses collectively fail to provide the objective basis
for a disability finding, and where they do find disability do so only
conclusorily and without objective explication, the plan's denials of
benefits are reasonable. Therefore, summary judgment is GRANTED.
IT IS SO ORDERED.