Yvette Williby v. Aetna Life Ins. Co.

Filing

FILED OPINION (MILAN D. SMITH, JR., N. RANDY SMITH and GARY FEINERMAN) VACATED; REMANDED. Judge: GF Authoring. FILED AND ENTERED JUDGMENT. [10544626]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YVETTE WILLIBY,

Plaintiff-Appellee,

v.
AETNA LIFE INSURANCE CO.,
Defendant-Appellant.

No. 15-56394
D.C. No.
2:14-cv-04203CBM-MRW
OPINION

Appeal from the United States District Court
For the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Argued and Submitted April 5, 2017
Pasadena, California
Filed August 15, 2017
Before: Milan D. Smith, Jr. and N. Randy Smith, Circuit
Judges, and Gary Feinerman, District Judge. *
Opinion by Judge Feinerman

The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.
*

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WILLIBY V. AETNA LIFE INS. CO.
SUMMARY **
Employee Retirement Income Security Act

The panel vacated the district court’s judgment in favor
of the plaintiff in an action under the Employee Retirement
Income Security Act, challenging the termination of shortterm disability benefits.
The panel held that the district court erred by reviewing
the denial of the plaintiff’s benefits claim de novo, rather
than for an abuse of discretion. The short-term disability
plan included a discretionary clause, and thus by its terms
called for abuse of discretion review. The panel held that
California Insurance Code § 10110.6, which invalidates such
discretionary clauses in insurance plans, applied even though
the disability plan was self-funded. ERISA, however,
preempted § 10110.6 insofar as it applied. The panel
remanded for the district court to review the benefits denial
under the correct standard.
COUNSEL
Matthew G. Kleiner (argued), San Diego, California, for
Defendant-Appellant.
Christian J. Garris (argued), Los Angeles, California, for
Plaintiff-Appellee.

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
**

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OPINION
FEINERMAN, District Judge:
Plaintiff-Appellee Yvette Williby worked for The
Boeing Company, which provided her with short-term
disability payments through a plan that it self-funded.
Defendant-Appellant Aetna Life Insurance Company
administered the plan. After Aetna determined that Williby
was not disabled and terminated her benefits, Williby
brought suit under the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001–1461.
Applying de novo review, the district court held that Aetna
improperly denied Williby’s claim. See Williby v. Aetna Life
Ins. Co., No. 2:14-CV-042032015 WL 5145499 (C.D. Cal.
Aug. 31, 2015). Aetna appeals, contending that the district
court should have reviewed the denial only for abuse of
discretion. Aetna is correct, so we vacate and remand to the
district court for reconsideration under the proper standard
of review.
BACKGROUND
Boeing’s short-term disability (STD) benefit plan for its
employees pays them between sixty and eighty percent of
their salary if, because of a disability, they cannot perform
their usual job responsibilities or other similar work at
Boeing. The STD plan is self-funded, meaning that Boeing
does not purchase an insurance policy to cover its plan
obligations; rather, Boeing pays benefits from its own
coffers, and retains Aetna to administer the plan. See FMC
Corp. v. Holliday, 498 U.S. 52, 54 (1990) (describing selffunded ERISA plans). There is a 26-week limit on STD
benefits, after which the employee must apply for long-term
disability (LTD) benefits.

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The STD plan expressly provides Aetna with “full
discretionary authority to determine all questions that may
arise,” including whether and to what extent a plan
participant is entitled to benefits. This provision is known
as a “discretionary clause.” See Standard Ins. Co. v.
Morrison, 584 F.3d 837, 840–41 (9th Cir. 2009) (describing
discretionary clauses). The presence of a discretionary
clause typically means that a court reviewing an adverse
benefits determination will do so only for abuse of
discretion. See Firestone Tire & Rubber Co. v. Bruch,
489 U.S. 101, 115 (1989); Abatie v. Alta Health & Life Ins.
Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc).
Williby worked for Boeing as a Supply Chain Specialist,
a position that required her to problem-solve, interact with
customers and vendors, conduct research, and assess
technical issues. In September 2011, she was briefly
hospitalized after suffering either a stroke or a stroke-like
episode.
In November 2012, Williby found herself
experiencing chronic headaches and other problems that
caused her difficulty at work. In December 2012, she saw a
neurologist, Dr. David Edelman, who performed various
assessments. Computerized cognitive tests showed that
Williby’s overall cognitive function fell within a normal
range, and an MRI revealed no “acute infarct”—brain tissue
damage—and no hemorrhage. But Williby’s executive
functions—the ability to organize information and to
respond quickly and accurately—“predicted a moderate
likelihood of ‘mild cognitive impairment.’” Dr. Edelman
found that Williby suffered from “migraine, acute but illdefined cerebrovascular disease, and vascular dementia
uncomplicated,” and on those premises concluded that she
should go on disability “pending further testing.” On
December 12, 2012, Williby left her employment at Boeing,
never to return.

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Aetna approved Williby for STD benefits from
December 20, 2012 through February 28, 2013 based on Dr.
Edelman’s testing and conclusions. However, Aetna denied
Williby STD benefits for the period from February 28, 2013
through June 2013. Dr. Vaughn Cohan, the Aetna-retained
neurologist responsible for the denial, reviewed the file,
spoke with Dr. Edelman by telephone, and concluded that
Williby could still work because, despite her executive
function impairments, her cognitive function was normal
overall, the MRI showed no “acute” abnormalities, and she
had not undergone formal neuropsychological testing to
follow up on Dr. Edelman’s initial tests.
At several points between April and November 2013, Dr.
Edelman reaffirmed his conclusion that Williby was unable
to work. Also, between June 2013 and December 2013,
Williby saw a second neurologist, a neuropsychologist, a
psychologist, and a psychiatrist, all of whom agreed that she
exhibited cognitive impairment and the majority of whom
specifically determined that it disabled her from working.
After Aetna terminated Williby’s STD benefits, she
appealed the decision within Aetna, armed with the
additional doctors’ reports. Aetna hired an occupational
medicine specialist and a neuropsychologist to review the
case. Both reviewers concluded that there was insufficient
objective documentation of Williby’s disability, with the
occupational medicine specialist explaining that any
impairment was “self-reported” and “primarily based on
mood
disorder/behavioral
issues,”
and
the
neuropsychologist concluding that “the provided
information did not include sufficient findings to
corroborate” Williby’s claimed cognitive impairments or
their interference with her work. Aetna upheld its decision
to deny benefits in February 2014, determining that “there

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was insufficient medical evidence to support continued
disability” after February 28, 2013.
Williby then sued Aetna in the Central District of
California for “breach of plan and recovery of plan benefits”
under ERISA, invoking ERISA’s jurisdictional provision,
29 U.S.C. § 1132(e). A bench trial ensued, based on the
administrative record.
The district court reviewed de novo Aetna’s denial of
benefits, notwithstanding the STD plan’s discretionary
clause. The court did so based on its view that California
Insurance Code § 10110.6—which voids any discretionary
clause in “a policy, contract, certificate, or agreement . . .
that provides or funds life insurance or disability insurance
coverage”—governed the STD plan. In so holding, the court
rejected Aetna’s argument that Boeing’s STD plan was
beyond the scope of § 10110.6 because it was self-funded.
The district court did not discuss whether ERISA preempted
§ 10110.6 under the circumstances of this case.
The district court then held that Williby was disabled
from at least February 28, 2013 through June 20, 2013—
when she would have reached the 26-week limit for
receiving STD benefits—and that Aetna’s decision to
terminate her STD benefits sooner was improper. The court
reasoned that there was no basis for Aetna’s finding that
Williby was disabled before February 28 but not after, as
“[n]othing in the record suggests that Plaintiff’s cognitive
impairment ceased or improved” after that date. The court
also gave “more weight to those doctors who treated
Plaintiff”—all of whom concluded that she demonstrated
cognitive impairment—and noted that Aetna’s doctors
simply reviewed the treating doctors’ work.

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In a footnote, the court added that its ultimate conclusion
would remain the same “[e]ven under an abuse of discretion
standard” and even “viewing Aetna’s decision with no
degree of skepticism since Aetna did not have . . . a direct
financial incentive to deny benefits since benefits are funded
by Boeing.” The court explained briefly that Aetna’s
benefits denial failed to clear even the low abuse of
discretion bar for two reasons: (1) every doctor who treated
Williby thought she was disabled or demonstrated
considerable cognitive impairment; and (2) although Aetna
relied on a “lack of objective clinical support” in terminating
her STD benefits, it never had its physicians examine
Williby or asked her to undergo any particular testing.
Aetna timely appealed.
DISCUSSION
This appeal requires us to determine whether the district
court selected and applied the proper standard of review in
this case. We find that it did not.
I. The Abuse of Discretion Standard Governs Judicial
Review of Aetna’s Denial of STD Benefits
“We review de novo a district court’s choice and
application of the standard of review to decisions by
fiduciaries in ERISA cases. We review for clear error the
underlying findings of fact.” Estate of Barton v. ADT Sec.
Servs. Pension Plan, 820 F.3d 1060, 1065 (9th Cir. 2016)
(quoting Abatie, 458 F.3d at 962).
Because it contains a discretionary clause, the STD plan
by its terms calls for abuse of discretion review. The district
court reviewed the benefits denial de novo, however,
because it concluded that California Insurance Code

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§ 10110.6 invalidated such discretionary clauses. On
appeal, Aetna mounts a two-pronged attack on that
conclusion. First, it contends that § 10110.6 does not apply
to self-funded plans like the Boeing STD plan at issue here.
Second, and in the alternative, it contends that even if
§ 10110.6 does apply to Boeing’s plan, ERISA preempts it.
So the district court’s de novo review was appropriate only
if § 10110.6 applies to the STD plan and ERISA does not
preempt § 10110.6 under the circumstances of this case.
Otherwise, the appropriate standard of review was abuse of
discretion.
A. Section 10110.6 Applies to Boeing’s Plan
Section 10110.6 states, in relevant part:
(a) If a policy, contract, certificate, or
agreement offered, issued, delivered, or
renewed . . . that provides or funds life
insurance or disability insurance coverage for
any California resident contains a provision
that reserves discretionary authority to the
insurer, or an agent of the insurer, to
determine eligibility for benefits or coverage
. . . that provision is void and unenforceable.
Cal. Ins. Code § 10110.6(a). The provision defines a
“discretionary authority” provision as one that “confer[s]
discretion on an insurer or other claim administrator to
determine entitlement to benefits” and that, “in turn, could
lead to a deferential standard of review by any reviewing
court.” Id. at § 10110.6(c). The provision bans the
enforcement of discretionary clauses in California. See
Orzechowski v. Boeing Co. Non-Union Long-Term
Disability Plan, Plan No. 625, 856 F.3d 686, 692 (9th Cir.
2017) (“[I]f any discretionary provision is covered by the

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statute, ‘the courts shall treat that provision as void and
unenforceable.’”) (quoting Cal. Ins. Code § 10110.6(g)).
Aetna argues that § 10110.6 does not apply to Boeing’s
self-funded STD plan because the statute targets only
“insurer[s]” and “insurance,” which (according to Aetna)
Boeing and its self-funded plan are not. This argument fails
to persuade. True enough, the reach of § 10110.6(a) is
limited to “a policy, contract, certificate, or agreement . . .
that provides or funds life insurance or disability insurance
coverage” (emphases added). But § 22 of the California
Insurance Code defines “insurance” broadly as “a contract
whereby one undertakes to indemnify another against loss,
damage, or liability arising from a contingent or unknown
event.” Cal. Ins. Code § 22. The text of § 22, and by
extension of § 10110.6(a), thus encompasses not only a
traditional insurance policy issued by a traditional insurer,
but also any “contract [that] . . . indemnif[ies] . . . against
loss . . . arising from a contingent . . . event.” We recognized
precisely this point in Orzechowski, observing that
Ҥ 10110.6(a) regulates entities engaged in insurance, even
if they are not insurance companies,” because it “is directed
at insurance, not insurers.” 856 F.3d at 694 (internal
quotation marks and citation omitted).
The question then becomes whether Boeing provided
“insurance” through its STD plan. “Section 22 has been
interpreted as requiring two elements: (1) shifting one
party’s risk of loss to another party; and (2) distribution of
that risk among similarly situated persons.” Auto. Funding
Grp., Inc. v. Garamendi, 7 Cal. Rptr. 3d 912, 915 (Cal. Ct.
App. 2003). Boeing’s contractual promise to pay its
employees a portion of their usual salary if a medical
problem rendered them unable to work fits this definition,
for by offering a self-funded STD plan, Boeing (1) shifted

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risk of financial loss due to injury from employees to itself
and (2) spread that risk over its workforce. See Selmon v.
Metro. Life Ins. Co., 277 S.W.3d 196, 202 (Ark. 2008)
(characterizing a self-funded LTD plan as a “risk-pooling
agreement”); Julie K. Swedback, The Deemer Clause: A
Legislative Savior for Self-Funded Health Insurance Plans
Under the Employee Retirement Income Security Act of
1974, 18 Wm. Mitchell L. Rev. 757, 787 (1992) (“While an
employer has the choice to fund its own benefit plan or to
purchase a plan from an insurance company, the only
distinguishable difference . . . in the nature of the benefit
plan is the source of the funding. Even when an employer
chooses to fund its own benefit plan, the plan provides a
benefit schedule, assumes liability through a contractual
document for payment of claims accorded by the benefit
schedule, and designates the amount of employee
contribution based on insurance principles of risk
distribution.”); Introduction—Fundamentals of SelfFunding, Employer’s Guide to Self-Insuring Health Benefits
¶ 200, available at 2001 WL 35727768 (“[H]istorically,
self-funding was used primarily by large companies that
employed enough workers to establish their own sizeable
risk pool and had significant cash flow that would allow
them to bear the risk of paying claims without fear that the
risk would harm the company substantially.”).
Aetna retorts that Boeing’s STD plan can constitute
“insurance” under California law only if “the risk element of
the contract is the principal object and purpose of the
agreement.” See Transp. Guar. Co. v. Jellins, 174 P.2d 625,
629 (Cal. 1946) (holding that the relevant question is not
“whether risk is involved or assumed,” but rather “whether
that or something else to which it is related in the particular
plan is its principal object and purpose”) (citation omitted);
Garamendi, 7 Cal. Rptr. 3d at 916. The cases on which

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Aetna relies for this proposition concern risk-shifting
provisions that were just one element of a broader contract
whose primary object was not risk-shifting. See Jellins,
174 P.2d at 631 (holding that a contractual promise to
perform maintenance on and procure insurance for a truck
was not “insurance” because “the major part of [Party A’s]
service [to Party B] is the supplying of labor”); Garamendi,
7 Cal. Rptr. 3d at 919–20 (holding under Jellins that an
optional provision of a used car loan that shifted some risk
from the buyer to the seller was not “insurance”); see also
Truta v. Avis Rent A Car Sys., Inc., 238 Cal. Rptr. 806, 814
(Cal. Ct. App. 1987) (holding under Jellins that a “tangential
risk allocation provision” did not make a rental car contract
“insurance” because its “principal object and purpose”
remained “the rental of an automobile”). Here, by contrast,
the principal purpose of Boeing’s STD plan was to shift risk,
and thus Aetna’s cases confirm, rather than refute, our
conclusion that the plan is “insurance” under California law.
In sum, Aetna provides no sound reason to depart from
the text of § 22, which brings within the scope of § 10110.6
Boeing’s self-funded STD plan.
B. ERISA Preempts Application of § 10110.6 to
Boeing’s Self-Funded STD Plan
The next question is whether ERISA preempts § 10110.6
insofar as it applies to Boeing’s plan. ERISA contains three
interrelated provisions governing its express preemption of
state law: the “preemption clause,” the “saving clause,” and
the “deemer clause.” FMC Corp., 498 U.S. at 57–58. The
preemption clause provides that ERISA “shall supersede any
and all State laws insofar as they may . . . relate to any
employee benefit plan” covered by ERISA. 29 U.S.C.
§ 1144(a); see Orzechowski, 856 F.3d at 692. That clause
“is conspicuous for its breadth. It establishes as an area of

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exclusive federal concern the subject of every state law that
relates to an employee benefit plan governed by ERISA.”
FMC Corp., 498 U.S. at 58 (internal quotation marks and
brackets omitted).
The saving clause creates a carve-out from the
preemption clause, sparing from ERISA preemption—
“[e]xcept as provided in” the deemer clause, of which more
in a moment—“any law of any State which regulates
insurance, banking, or securities.”
29 U.S.C.
§ 1144(b)(2)(A); see FMC Corp., 498 U.S. at 58. “So,
although ERISA has broad preemptive force, its saving
clause then reclaims a substantial amount of ground.”
Orzechowski, 856 F.3d at 692 (internal quotation marks
omitted).
Finally, the deemer clause qualifies the scope of the
saving clause, reviving preemption for certain laws that the
saving clause might otherwise carve out from the preemption
clause. The deemer clause states that no “employee benefit
plan [covered by ERISA] . . . shall be deemed to be an
insurance company or other insurer . . . for purposes of any
law of any State purporting to regulate insurance companies
[or] insurance contracts.” 29 U.S.C. § 1144(b)(2)(B).
“Under the deemer clause, an employee benefit plan
governed by ERISA shall not be ‘deemed’ an insurance
company, an insurer, or engaged in the business of insurance
for purposes of state laws ‘purporting to regulate’ insurance
companies or insurance contracts.” FMC Corp., 498 U.S. at
58. The Supreme Court has rejected the proposition that the
deemer clause applies only to “state insurance regulations
that are pretexts for impinging upon core ERISA concerns.”
Id. at 63. Instead, a state insurance regulation is preempted
to the extent it operates directly on an ERISA plan, even if
its stated intent is not pretextual. See id. at 61–65.

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In Orzechowski, this court held, for purposes of the LTD
plan at issue there, that although § 10110.6 fell within the
scope of the preemption clause, it was “saved” from
preemption by the saving clause. 856 F.3d at 692–95.
Orzechowski followed Standard Insurance Co. v. Morrison,
584 F.3d 837 (9th Cir. 2009), which held that a Montana ban
on discretionary clauses in insurance contracts was not
preempted because it fell within the saving clause. Id. at
849. Significantly, neither Orzechowski nor Morrison
addressed the deemer clause, and the reason reveals a key
distinction between those two cases and this one.
Unlike Boeing’s STD plan, the disability plans at issue
in Orzechowski and Morrison were not self-funded; rather,
they were funded by insurance policies. See Orzechowski,
856 F.3d at 689; Morrison, 584 F.3d at 840 (noting that the
state regulatory practice under review applied only to
“insurance contract[s]”). This matters because the Supreme
Court in FMC Corp. held that the deemer clause’s scope
turns on the presence or absence of traditional insurance. If
the state law is applied to a traditional insurance policy, then
the state law falls outside the deemer clause and thus within
the saving clause—even if the insurance policy backstops an
ERISA plan. On the other hand, if the state law is applied to
an ERISA plan itself, which is how such laws operate on
self-funded plans, the law falls within the deemer clause and
thus is preempted, even if it is a bona fide insurance
regulation that only incidentally affects ERISA concerns.
See FMC Corp., 498 U.S. at 64. The result is a simple,
bright-line rule: “if a plan is insured, a State may regulate it
indirectly through regulation of its insurer and its insurer’s
insurance contracts; if the plan is uninsured, the State may
not regulate it.” Id. The Court thus concluded: “We read the
deemer clause to exempt self-funded ERISA plans from state
laws that ‘regulat[e] insurance’ within the meaning of the

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saving clause.” Id. at 61; see Scharff v. Raytheon Co. Short
Term Disability Plan, 581 F.3d 899, 907 (9th Cir. 2009)
(“[U]nder ERISA’s ‘deemer clause,’ state insurance
regulation of self-funded plans is preempted by ERISA.”).
Thus, for a self-funded disability plan like Boeing’s, the
saving clause does not apply, and state insurance regulations
operating on such a self-funded plan are preempted.
This point is so clear that Williby does not dispute that
ERISA preempts § 10110.6 as applied to self-funded ERISA
plans. Williby instead asserts—for the first time in this
litigation—that Boeing’s STD plan is not an ERISA plan at
all. Citing Bassiri v. Xerox Corporation, 463 F.3d 927, 929
(9th Cir. 2006), she argues that the STD plan is actually a
“payroll practice” and therefore exempt from federal
regulation under ERISA.
That argument is untenable at this late juncture. Here,
not only did Williby press exclusively ERISA-based claims
in the district court, she staked federal jurisdiction on the
foundational premise that ERISA governs her suit. Williby
has thus forfeited any claim that the STD plan was an
ERISA-exempt “payroll practice.” See Armstrong v. Brown,
768 F.3d 975, 981 (9th Cir. 2014) (“[A]n issue will generally
be deemed waived on appeal if the argument was not raised
sufficiently for the trial court to rule on it.”); Komatsu, Ltd.
v. States S.S. Co., 674 F.2d 806, 812 (9th Cir. 1982)
(deeming an issue waived where the party had “relied . . .
exclusively” in the district court on other arguments).
ERISA therefore applies to Boeing’s self-funded STD
plan and preempts § 10110.6’s application thereto. The
district court thus should have honored the plan’s

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discretionary clause and reviewed Aetna’s denial of benefits
to Williby, not de novo, but for abuse of discretion. 1
II. Remand Is Necessary To Permit the District Court to
Properly Apply the Abuse of Discretion Standard
The question remains whether there is any need to
remand. Williby argues that the district court has already
applied the abuse of discretion standard and that the panel
should simply affirm on that ground. Aetna counters that the
district court paid only lip service to the abuse of discretion
standard and applied it improperly, and so should be asked
to revisit the issue on remand. Whether an ERISA plan
administrator abused its discretion is a legal determination
that we review de novo. See Nolan v. Heald Coll., 551 F.3d
1148, 1153 (9th Cir. 2009).
The parties’ briefing of this issue focuses on whether the
district court applied what is known as the “treating
physician rule.” The treating physician rule was a rule of
thumb, formerly applied in this circuit, under which a court
reviewing a benefits denial would “give[] especially great
weight to the opinion of a claimant’s treating physician.”
Jordan v. Northrop Grumman Corp. Welfare Benefit Plan,
Before proceeding, we address a question that might occur to the
attentive reader: If the court was going to hold § 10110.6 preempted by
ERISA in the context of Boeing’s STD plan, why not just assume for the
sake of argument that § 10110.6 applied to Boeing’s plan rather than
affirmatively hold as a matter of California law that it does? The reason
is that the Supreme Court has described preemption as “a two-step
process of first ascertaining the construction of the two statutes and then
determining the constitutional question whether they are in conflict.”
Chi. & Nw. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317
(1981) (quoting Perez v. Campbell, 402 U.S. 637, 644 (1971)). Applying
that precedent faithfully required that we first resolve the California law
issue to determine the necessity of addressing the preemption question.
1

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370 F.3d 869, 878 (9th Cir. 2004), overruled on other
grounds as recognized by Salomaa v. Honda Long Term
Disability Plan, 642 F.3d 666, 673–74 (9th Cir. 2011). The
rule required ERISA plan administrators to “either accept the
opinion of a claimant’s treating physician, or, if the
administrator rejects that opinion, come forward with
specific reasons for that decision, based on substantial
evidence in the record.” Id. (internal quotation marks
omitted). The Supreme Court rejected the treating physician
rule in Black & Decker Disability Plan v. Nord, 538 U.S.
822 (2003), holding that “courts have no warrant to require
administrators automatically to accord special weight to the
opinions of a claimant’s physician; nor may courts impose
on plan administrators a discrete burden of explanation when
they credit reliable evidence that conflicts with a treating
physician’s evaluation.” Id. at 834. The parties disagree
whether the district court ran afoul of that holding.
The district court offered this explanation for its
conclusion that Aetna abused its discretion in terminating
Williby’s STD benefits:
Aetna’s
decision
was
illogical,
implausible, or without support in inferences
that could reasonably be drawn from facts in
the record because (1) all of the doctors who
personally treated Plaintiff concluded that
she was disabled or demonstrating
considerable cognitive impairment; and
(2) Aetna’s reviewing doctors cited to lack of
objective clinical support, but there is no
evidence that Aetna requested for Plaintiff to
be examined by its physicians or undergo the
specific testing it needed to support an
objective, clinical finding of functional

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impairment. See, e.g., Salomaa v. Honda
Long Term Disability Plan, 642 F.3d [666,]
666–76 (9th Cir. 2011).
This does sound perilously close to the treating physician
rule. But we need not decide whether the district court
actually applied that rule because, regardless, the court did
not identify or implement the correct standard.
The district court said it was “viewing Aetna’s decision
with no degree of skepticism since Aetna did not have a
conflict of interest.” That statement properly recognized that
when a plan administrator is also the payor of the employee’s
benefits and thus has a direct financial incentive to deny
claims, the resulting “conflict of interest” becomes a
significant contextual factor in the abuse of discretion
analysis. See Metro. Life Ins. Co. v. Glenn, 554 U.S. 105,
112, 117 (2008); Harlick v. Blue Shield of Cal., 686 F.3d
699, 707 (9th Cir. 2012) (“[O]ur review is tempered by
skepticism when the plan administrator has a conflict of
interest in deciding whether to grant or deny benefits.”)
(internal quotation marks omitted). We explained the
significance of an administrator’s conflict of interest for
abuse of discretion review in Montour v. Hartford Life &
Accident Insurance Co., 588 F.3d 623 (9th Cir. 2009):
In the absence of a conflict, judicial
review of a plan administrator’s benefits
determination involves a straightforward
application of the abuse of discretion
standard. In these circumstances, the plan
administrator’s decision can be upheld if it is
grounded on any reasonable basis. In other
words, where there is no risk of bias on the
part of the administrator, the existence of a

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WILLIBY V. AETNA LIFE INS. CO.
single persuasive medical opinion supporting
the administrator’s decision can be sufficient
to affirm, so long as the administrator does
not construe the language of the plan
unreasonably or render its decision without
explanation.

Id. at 629–30 (internal quotation marks and citation omitted).
But when the administrator and payor are one and the same,
[s]imply construing the terms of the
underlying plan and scanning the record for
medical evidence supporting the plan
administrator’s decision is not enough,
because a reviewing court must take into
account the administrator’s conflict of
interest as a factor in the analysis.
More particularly, the court must
consider numerous case-specific factors,
including the administrator’s conflict of
interest, and reach a decision as to whether
discretion has been abused by weighing and
balancing those factors together. Under this
rubric, the extent to which a conflict of
interest appears to have motivated an
administrator’s decision is one among
potentially many relevant factors that must be
considered.
Id. at 630 (internal citations omitted). Aetna has no such
conflict of interest here, as Boeing funded the STD plan. Yet
the district court supported its abuse of discretion holding
with a lone citation to Salomaa v. Honda Long Term

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Disability Plan, 642 F.3d 666 (9th Cir. 2011), a case where
the administrator did have a conflict of interest. Id. at 674.
The district court’s exclusive reliance on Salomaa leaves
us unable to say with the requisite level of certainty that it
applied the correct standard. Because a conflict of interest
existed in Salomaa, the abuse of discretion review was of the
probing variety described in Montour; that level of review is
inappropriate here. See id. at 673–76. Moreover, our
observation in Salomaa that “every doctor who personally
examined [the employee] concluded that he was disabled”
was just one factor among many contributing to the court’s
skepticism of the administrator’s conclusion that the
employee was not disabled; we also noted, among other
things, that the plan administrator failed to consider that the
plaintiff had been awarded Social Security disability
payments and that its shifting explanations were at odds with
the medical records. See id. at 676. The district court here
did not rely on such circumstances in holding that Aetna
abused its discretion.
Faced with only the district court’s recital of the abuse of
discretion standard and a single citation to an inapposite
case, we cannot be confident that the district court applied
the abuse of discretion standard correctly. We therefore
remand to allow the district court to review the benefits
denial anew under the correct standard. In remanding, we
express no opinion as to what the outcome should be. See
Arizona v. City of Tucson, 761 F.3d 1005, 1015 (9th Cir.
2014).
CONCLUSION
For the foregoing reasons, the district court’s judgment
is VACATED and the matter is REMANDED for further
consideration consistent with this opinion.