This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

JONATHAN E. RIVKIN, M.D., an

individual,

 Plaintiff - Appellant,

 v.

THE UNION CENTRAL LIFE

INSURANCE COMPANY and SHARP

REES-STEALY MEDICAL GROUP INC.

GROUP LONG TERM DISABILITY

INSURANCE PLAN,

 Defendants - Appellees.

No. 11-55975

D.C. No. 3:09-cv-01136-WQHWVG

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted February 7, 2013

Pasadena, California

Before: CALLAHAN, IKUTA, and HURWITZ, Circuit Judges.

FILED

JUN 18 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 The plan states: 1

You will be paid a Total Disability benefit if You:

1. become Totally Disabled while insured under this Plan;

2. are Disabled throughout the Elimination Period and remain

Disabled beyond the Elimination Period; 

3. are under the care of a Physician who is providing treatment for

the Injury or Sickness causing the Disability;

4. submit Proof of Disability satisfactory to Us; and

5. are employed, Your Current Monthly Earnings are less than or

equal to 20% of Your Average Monthly Earnings.

There is no dispute that Rivkin meets the definition of “Totally Disabled” and

otherwise qualifies for a Total Disability Benefit. 

2

Dr. Jonathan Rivkin appeals the district court’s grant of summary judgment

in favor of The Union Central Life Insurance Company. We review de novo,

Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962 (9th Cir. 2006) (en banc),

and reverse. 

Union Central’s plan pays two kinds of benefits relevant to this case: a

“Total Disability Benefit” and a “Residual Disability Benefit.” When Rivkin’s

monthly income does not exceed 20 percent of his pre-disability monthly income,

he receives the Total Disability Benefit. By contrast, when Rivkin’s monthly 1

income does exceed this 20 percent threshold, he receives the Residual Disability
 The plan states: 2

If You are Residually Disabled and have Current Monthly Earnings in

excess of 20% of Your Average Monthly Earnings, You will be paid a

Residual Disability Benefit if You meet the following qualifications:

1. You satisfy the Elimination Period with the required number of

days of Total Disability and/or Residual Disability and become

entitled to receive LTD benefits under this Plan;

2. You submit satisfactory Proof of Disability to Us that You are

Residually Disabled as defined in this Plan; and,

3. You are earning less than 80% of Your Average Monthly

Earnings.

 The plan provides: 3

We will calculate Your Monthly Benefit using the 50% Offset of

Earnings method. To determine Your benefit, calculate Your Total

Disability Benefit . . . . From the Total Disability amount determined,

subtract 50% of Your Current Monthly Earnings. The amount

remaining is Your Monthly Benefit.

3

Benefit. To calculate the Residual Disability Benefit, the administrator must first 2

calculate Rivkin’s Total Disability Benefit and must then subtract half of Rivkin’s

monthly income. To calculate the Total Disability Benefit, the administrator 3

begins with 40 percent of Rivkin’s pre-disability monthly income and then
 The plan provides three methods for calculating the Total Disability 4

Benefit. The parties agree that in this case, the Total Disability Benefit is

calculated using the Direct Method. Under this method, the Total Disability

Benefit is calculated as follows: “Take the lesser of . . . Your Average Monthly

Earnings multiplied by the Direct Benefit Percent shown in the Coverage Schedule

[40 percent] . . . [and] subtract all Other Income Reductions, including those for

which You were eligible but did not apply or appeal as described in the ‘Claims

Provisions’ section of this Plan.”

4

subtracts certain “Other Income Reductions” that are defined by the plan. The 4

plan defines “Other Income Reductions” as follows:

What Are The Other Income Reductions? Other Income

Reductions are benefits You are eligible to receive from other sources

due to Your Disability. If You receive benefits from any of the other

sources listed below, they will be used to reduce Your Monthly

Benefit. 

Consistent with this definition, the plan enumerates nine such reductions, including

unemployment benefits, Social Security benefits, disability benefits received from

an automobile policy, and damages intended to compensate for lost earnings. The

list also includes (as No. 8) “Income from any work for pay or profit not

considered . . . Residual Disability or Rehabilitative Employment.” 

According to Union Central, Reduction No. 8 includes any income from

part-time or temporary work that is equal to or less than 20 percent of a claimant’s
 Union Central first offered this interpretation during litigation. Before 5

Rivkin filed suit, Union Central offered or applied other interpretations of the plan. 

5

pre-disability income. Under Union Central’s interpretation, when Rivkin 5

receives a Total Disability Benefit (i.e., when he is earning 20 percent or less of

pre-disability income), Union Central will reduce his benefit by 100 percent of his

earnings. When Rivkin is receiving a Residual Disability Benefit (i.e., when he is

earning more than 20 percent of pre-disability income), Reduction No. 8 does not

apply, and Union Central will reduce his benefit by 50 percent of his earnings.

This interpretation of the plan is contrary to its plain language. As

previously mentioned, the plan defines the category of “Other Income Reductions”

as applying to “benefits” Rivkin is entitled to receive from other sources “due to”

his disability. The “other sources” listed in the “Other Income Reductions”

provision are all consistent with this definition: for example, the list includes

disability benefits from an automobile policy, which is a type of benefit a person

may be entitled to receive due to a disability. By contrast, income earned by

Rivkin from part-time or temporary work is not a “benefit” received “due to” his

disability. Union Central does not provide any plausible basis for its conclusion

that income from part-time or temporary employment could meet the definition of

“Other Income Reductions.” 
 Because Union Central’s interpretation of the plan was erroneous even 6

under a deferential standard of review, we need not address Rivkin’s argument,

based on Conkright v. Frommert, 130 S. Ct. 1640, 1651 (2010), that the district

court should have reviewed Union Central’s plan interpretation de novo. 

6

It is an abuse of discretion for a plan administrator to “construe provisions of

the plan in a way that conflicts with the plain language of the plan.” Day v. AT & T

Disability Income Plan, 698 F.3d 1091, 1096 (9th Cir. 2012) (quoting Taft v.

Equitable Life Assurance Soc’y, 9 F.3d 1469, 1472–73 (9th Cir. 1994)), abrogated

on other grounds by Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522

F.3d 863, 872 n.2 (9th Cir. 2008)), cert. denied, __ S. Ct. __, No. 12-1144, 2013

WL 1147413 (Apr. 22, 2013). Because Union Central’s interpretation of

Reduction No. 8 is contrary to the definition of “Other Income Reductions,” Union

Central abused its discretion in interpreting the plan. As a result, the district court

erred in granting summary judgment in favor of Union Central.6

REVERSED AND REMANDED.