NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESLIE HOFFMAN, 

Plaintiff-Appellant, 

 v. 

SCREEN ACTORS GUILD PRODUCERS 

PENSION PLAN; BOARD OF TRUSTEES 

SCREEN ACTORS GUILD PENSION 

PLAN; DOES, 1 through 10, 

Defendants-Appellees.

No. 16-56663 

D.C. No. 

2:16-cv-01530-R-AJW 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted April 12, 2018

Pasadena, California

Before: BEA and MURGUIA, Circuit Judges, and BASTIAN,** District 

Judge.

Plaintiff-Appellant Leslie Hoffman appeals the decision of the district court, 

affirming the retroactive termination of her disability benefits by the Screen Actors 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Stanley Allen Bastian, United States District Judge for 

the Eastern District of Washington, sitting by designation.

FILED

JAN 4 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Guild-Producers Pension Plan, a defined benefit plan subject to the Employee 

Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001–1461, and the 

Board of Trustees Screen Actors Guild Pension Plan, the plan’s administrator 

(collectively, “the Plans”). We have jurisdiction under 28 U.S.C. § 1291. Because 

we conclude that the district court erred in granting the Plans’ motion for summary 

judgment, we reverse and remand. 

The Plans manage a defined benefit plan subject to ERISA. In order to 

receive benefits pursuant to the terms of the plan, an individual must be “totally 

disabled”: (1) receiving Social Security Disability Benefits; and (2) “unable to 

engage in any substantial gainful activity by reason of any medically determinable 

physical or mental impairment which can be expected to result in death or to 

continue for the individual=s lifetime.” Hoffman is a retired stunt actor who ceased 

work in May 2000 due to numerous physical injuries and severe depression. On 

February 20, 2004, Administrative Law Judge Robin Wright found Hoffman to be 

totally disabled by way of severe major depression since February 25, 2002, and 

awarded her Social Security Disability Benefits. In 2004, Plaintiff likewise applied 

for disability benefits under the plan. Based on reports of Plaintiff’s treating 

physicians Richard Handler, M.D., Hal Rubin, M.D., Ruth Cassin, M.D., and the 

Plans’ own medical director, Robert Shakman, M.D., who all found Plaintiff 
3 

totally disabled as a result of various physical and psychological injuries, Plaintiff 

received disability benefits. 

In 2008, Plaintiff elected to convert her disability pension into an 

occupational disability pension. In 2010, the Plans wrote that Dr. Shakman had 

reviewed all of the medical documentation and determined Plaintiff’s disability to 

be a result of severe major depression and not occupational in nature. The decision 

was affirmed on administrative appeal, and Plaintiff filed suit. Hoffman v. Screen 

Actors Guild-Producers Pension Plan, et al., No. CV 10-0613 GAF (AJWx), 2012 

WL 12887076 (C.D. Cal. May 3, 2012). The district court affirmed the denial of 

benefits on summary judgment and rejected Plaintiff’s contention that her 

disability was due, in part, to physical impairments. Id. Plaintiff appealed, and this 

Court reversed the district court’s grant of summary judgment in favor of the Plans 

for violations of ERISA claims procedures and remanded to the Plans for further 

proceedings. Hoffman v. Screen Actors Guild Producers Pension Plan, et al., 571 

Fed. Appx. 588 (9th Cir. 2014). We directed the Plans that Plaintiff was entitled to 

a second medical opinion on administrative appeal and a fully developed record 

resulting therefrom. Id. at 591.

On remand, the Plans again denied Hoffman’s application for occupational 

disability benefits. This prompted a review of Hoffman’s initial application for 
4 

disability benefits for which she had been receiving benefits since 2002. The Plans 

concluded that Hoffman had not been under a disability pursuant to the terms of 

the plan and terminated her regular disability pension retroactively from January 1, 

2005. The Plans consequently notified Hoffman that her disability pension 

payments would cease effective August 1, 2015, and sought to recoup alleged 

overpayment of benefits in the amount of $123,827.50 plus $8,457.72 interest. The 

decision was upheld on administrative appeal, and Hoffman filed a second 

complaint under ERISA challenging the retroactive termination of her disability 

benefits. The district court granted the Plans’ motion for summary judgment and 

entered judgment in their favor. Hoffman v. Screen Actors Guild Producers 

Pension Plan et al., No. 2:16-cv-01530-R-AJW, ECF Nos. 45, 49.

Reviewing de novo, Nolan v. Heald Coll., 551 F.3d 1148, 1150 (9th Cir. 

2009), we conclude that the district court erred in failing to address all of 

Hoffman’s alleged procedural defects, which should have been considered as 

factors that tempered the court’s abuse of discretion review. See Abatie v. Alta 

Health & Life Ins. Co., 458 F.3d 955, 968 (9th Cir. 2006) (en banc). 

Here, the Plans had discretionary authority to determine Hoffman’s 

eligibility for benefits, and it is undisputed that the Plans’ denial of benefits is 

therefore reviewed by the district court for abuse of discretion. See id. at 963.
5 

Where there are “procedural irregularities” in the claim review process, the abuse 

of discretion standard that is applied by the district court will be “tempered” by 

heightened skepticism. Id. at 959, 971. The district court must consider all the 

circumstances in determining how much weight to assign to a conflict or 

procedural irregularity. Id. at 968, 972 (“A procedural irregularity, like a conflict 

of interest, is a matter to be weighed in deciding whether an administrator’s 

decision was an abuse of discretion.” (citations omitted)). The nature and scope of 

the alleged violations will significantly affect the standard of review applied by the 

district court. See id. “[W]hen a plan administrator’s actions fall so far outside the 

strictures of ERISA that it cannot be said that the administrator exercised the 

discretion that ERISA and the ERISA plan grant, no deference is warranted.” Id.

Alternatively, “[w]hen an administrator can show that it has engaged in an 

ongoing, good faith exchange of information between the administrator and the 

claimant, the court should give the administrator’s decision broad deference 

notwithstanding a minor irregularity.” Id. (internal quotation marks and citations 

omitted).

Hoffman advanced new evidence of multiple procedural irregularities in the 

Plans’ review of her application for benefits, including the Plans’ failure to 

consider all relevant evidence, such as tax records, and to make available evidence 
6 

relevant to the Plans’ decision, such as the administrative record from prior 

proceedings, audio recordings of meetings, and a medical report by the Plans’ 

medical director. Although the district court concluded that there was sufficient 

evidence of a procedural conflict to merit a heightened abuse of discretion review, 

it only referenced, without explanation, one of these alleged irregularities—the 

Plans’ failure to disclose the administrative record to Plaintiff during the course of 

the appeal. The district court went on to conclude, again without explanation, that 

there was no evidence of malice, self-dealing, or a parsimonious claims-granting 

history on the part of the Plans, and that its level of skepticism was, accordingly, 

not extremely high. The findings of fact entered by the district court, which were 

adopted verbatim from the Plans’ proposed findings and conclusions, similarly do 

not include findings about any of the alleged procedural defects.1 The district 

court’s failure to consider all of the alleged procedural defects before determining 

the level of skepticism was error. See Abatie, 458 F.3d at 969.

Moreover, because the alleged procedural defects involved disputed issues 

of material fact, the district court’s grant of summary judgment was improper. 

 

1 Although it is not error for the district court to state the undisputed facts in 

the form of findings of fact and conclusions of law, see Fromberg, Inc. v. Gross 

Mfg. Co., 328 F.2d 803, 806 (9th Cir. 1964), in reality, “there is no such thing 

as . . . findings of fact, on a summary judgment motion.” Kearney v. Standard Ins. 

Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (quoting Thompson v. Mahre, 110 F.3d 

716, 719 (9th Cir. 1997)). 
7 

Ordinarily, where abuse of discretion review is appropriate, the district court’s 

review is limited to the administrative record and the traditional rules of summary 

judgment do not apply. Nolan, 551 F.3d at 1154. In such cases “a motion for 

summary judgment is merely the conduit to bring the legal question before the 

district court . . . .” Id. (citing Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 

(9th Cir. 1999), abrogated on other grounds by Abatie, 458 F.3d at 963). Where, as 

here, however, the claimant seeks to admit extrinsic evidence in order to prove the 

existence of procedural irregularities, then the court may review the additional 

evidence under the traditional summary judgment standards. Id. at 1150; see Fed. 

R. Civ. P. 56(c). The new evidence is reviewed de novo in the light most favorable 

to plaintiff. Nolan, 551 F.3d at 1150.

The record here reveals numerous factual disputes not addressed by the 

district court in either the summary judgment order or the court’s findings of fact.

2

For example, although the Plans repeatedly requested that Hoffman provide all of 

her tax records to the Board of Trustees, the Plans later claimed that they only 

reviewed a “summary” of these records, and retroactively denied Hoffman’s 

benefits in part on the basis that Hoffman was holding herself out to be available to 

 

2 The adoption of the proposed findings of facts on summary judgment, in 

and of itself, may be suggestive of factual disputes. See U. S. for Use & Benefit of 

Austin v. W. Elec. Co., 337 F.2d 568, 572 (9th Cir. 1964); Trowler v. Phillips, 260 

F.2d 924, 926 (9th Cir. 1958).
8 

work. Similarly, the Plans relied on a report from the Plans’ new medical director, 

who reviewed the record and determined that Hoffman was not disabled. That 

report was inadvertently omitted from the Rule 26, Fed. R. Civ. P., disclosure of 

the Administrative Record, though it was later supplemented at an unspecified 

date. Yet, there is nothing in the record showing that Hoffman received that report 

prior to the decision. In contrast, Hoffman provided voluminous tax records to the 

Plans to show she had not been paid for work since her disability began. The Plans 

acknowledged receiving these, but did not include them in the administrative 

record, suggesting that the Plans did not review them. Similarly, the Plans claimed 

they did not record Hoffman’s hearing on appeal and denied Hoffman’s request to 

provide any such recordings. However, the Plans later filed a motion for attorneys’ 

fees for 3.8 hours for drafting memorandum regarding duty to disclose recording at 

trustees’ meetings. Finally, we note that the court’s findings of fact do not explain 

the basis for the district court’s conclusion that there was no evidence of malice, 

self-dealing, or a parsimonious claims-granting history on the part of the Plans.

On remand, the district court must address these outstanding factual 

questions, which will bear upon the degree of skepticism with which the district 

judge reviews the Plans’ decision to deny Hoffman’s claim for benefits. Abatie, 

458 F.3d at 959. To the extent there are factual disputes, the district court must 
9 

resolve those through a bench trial under Rule 52(a), Fed. R. Civ. P., before 

granting judgment on Hoffman’s claim for wrongful termination of benefits under

ERISA section 502, 29 U.S.C. § 1132(a)(l)(B). Nolan, 551 F.3d at 1154. Viewing 

new evidence through the lens of a bench trial is not merely a matter of form; it

may lead the judge to a wholly different conclusion about the merits of the case.

See Kearney, 175 F.3d at 1095 (“The process of finding the facts ‘specially,’ as 

that rule requires, sometimes leads a judge to a different conclusion from the one 

he would reach on a more holistic approach.”).

Because the district court erred in its denial of summary judgment on 

Hoffman’s section 502 claim, the district court also erred in summarily denying 

Hoffman’s claims that the Plans failed to provide full and fair review under ERISA 

section 503, 29 U.S.C. § 1133(2). See Johnson v. Buckley, 356 F.3d 1067, 1077 

(9th Cir. 2004) (“In order to challenge a benefit plan’s failure to comply with 

ERISA’s disclosure requirements, the employees must ‘have a colorable claim that 

(1) [they] will prevail in a suit for benefits, or that (2) eligibility requirements will 

be fulfilled in the future.’”). We accordingly remand to the district court for further 

proceedings consistent with this disposition.

REVERSED and REMANDED.
1

Hoffman v. Screen Actors Guild Producers Pension Plan; et al.; No. 16-56663

BEA, Circuit Judge, dissenting:

This case requires us to determine whether the district court erred in granting 

summary judgment to the Screen Actors Guild Producers Pension Plan (the “Plan”) 

because it found the Plan did not abuse its discretion in denying Appellant Leslie 

Hoffman’s disability benefits application. Because I think the district court properly 

considered the evidence and correctly decided that the Plan did not abuse its 

discretion, I respectfully dissent. 

I

The Plan is a defined benefits plan governed by the Employee Retirement 

Income Security Act (“ERISA”). ERISA seeks to protect employees by establishing 

minimum standards for private pension and health plans, including requiring plans 

to establish a grievance and appeals process for plan participants who apply to

receive benefits. ERISA also encourages private employers to fund employee 

benefits plans by allowing employers to deduct their contributions from taxable 

income and to interpret the terms of the benefits plans. Accordingly, ERISA cases 

generate a peculiar situation, particularly with respect to how courts review plan 

administrators’ decisions. 

Here, the Plan’s Board of Trustees (the “Board”) administers the Plan, which 

gives the Board discretion to interpret the terms of the plan. Hoffman is a retired 

FILED

JAN 4 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

stunt actor and coordinator. Hoffman initially ceased working as a stunt actor and 

coordinator in 2000. In 2003 and 2004, Hoffman was repeatedly hospitalized for 

depression and, in 2004, Dr. Ruth Cassin opined that Hoffman was disabled due to 

her depression. 

On February 20, 2004, Hoffman was awarded Social Security Disability 

Benefits based on her depression. Hoffman then applied for a disability pension 

from the Plan. The Plan’s in-house doctor, Dr. Shakman, approved her application 

and she was granted a disability pension. 

In 2008, Hoffman sought to convert her disability pension into an 

occupational disability pension, which would entitle her to health benefits not 

available under the regular disability pension. To obtain an occupational pension, 

Hoffman was required to show that her disability—that is, her depression—occurred 

during the course of her employment. The Plan denied Hoffman’s request to convert 

her disability pension into an occupational disability pension. Hoffman appealed the 

Plan’s decision to the Benefits Committee, which affirmed the Plan’s denial of 

benefits, again relying on Dr. Shakman. 

Hoffman sued the Plan, claiming it had violated ERISA by wrongfully 

denying her benefits. The district court granted the Plan’s motion for summary 

judgment, and Hoffman appealed to this Court (the “First Appeal”). On the First 

Appeal, we reversed the district court’s grant of summary judgment and remanded 
3

with instructions to the district court to require the Plan to obtain a second medical 

opinion to provide Hoffman with a full and fair review of her claim. Hoffman v. 

Screen Actors Guild-Producers Pension Plan, 571 F. App’x 588, 591 (9th Cir. 

2014). At that point, the case was remanded to the Plan for further proceedings. 

In 2015, during the remand, the Plan discovered what it believed to be 

evidence that Hoffman was not actually disabled and had been working as a 

stuntwoman and stunt coordinator after 2004. This evidence included the fact that 

Hoffman received credits in a number of productions after 2004 and held herself out 

as a working stuntwoman and coordinator on various websites and social media 

platforms. 

The Plan’s Benefits Committee sent Hoffman’s file, which contained her 

medical records, to three independent medical consultants—a board certified 

psychologist, a board certified orthopedic surgeon, and a board certified neurologist. 

The orthopedic surgeon and neurologist opined that Hoffman had never been 

disabled and the psychologist opined that Hoffman was not currently disabled and 

likely had not been disabled since late 2004. 

The Benefits Committee then conducted a review of Hoffman’s disability 

pension and determined, based on the opinion of the medical consultants and 

evidence that Hoffman had been holding herself out to work as a stunt coordinator 

after 2004, that Hoffman was not totally disabled within the meaning of the plan and 
4

had not been totally disabled after 2004. The Benefits Committee terminated 

Hoffman’s disability pension, retroactive to January 1, 2005. 

Hoffman filed an administrative appeal with the Plan. New members of the 

Benefits Committee who were not involved in Hoffman’s original application heard 

Hoffman’s appeal. Additionally, the Benefits Committee forwarded Hoffman’s file 

to a new board certified psychologist, a new board certified orthopedic surgeon, and 

a new board certified neurologist. The orthopedic surgeon and psychologist 

concluded that Hoffman was not disabled. The neurologist concluded that Hoffman 

was totally disabled beginning in September 2012, but went on to state that she had 

“no physical neurological restrictions or deficits” and “would be able to work in any 

position that did not require [Hoffman] to engage in rapid word reading or other 

speed processing.” 

Hoffman submitted medical evidence from a number of doctors to support her 

claim of disability, including her treating physician. Additionally, Hoffman 

submitted a declaration stating that she had not been paid for work on the films she 

received credits for; submitted evidence from former co-workers that working on 

amateur films did not necessarily indicate an ability to work as a stunt coordinator 
5

on paid productions; and submitted her tax returns for the relevant time period, 

which showed no income from the film industry other than residuals.1

 

The Benefits Committee reviewed the evidence in the administrative record, 

including the new medical opinions regarding Hoffman’s status. In a three-page 

decision, the Benefits Committee upheld the termination of Hoffman’s disability 

pension, retroactive to January 1, 2005, based exclusively on the opinion of the 

medical experts the Plan had retained. Hoffman filed a complaint against the Plan 

in the Central District of California alleging that she had been wrongfully denied 

benefits and asserting a claim under section 502(c) of ERISA, alleging that the Plan 

had failed to provide her with documents she had requested. The district court 

granted summary judgment to the Plan, and Hoffman appealed. 

II

We review a district court’s decision to grant summary judgment and the 

district court’s “application of the standard of review to decisions by fiduciaries in 

ERISA cases” de novo. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962 

(9th Cir. 2006) (en banc); Farr v. U.S. W. Commc’ns Inc., 151 F.3d 908, 913 (9th 

Cir. 1998). 

 1 We cannot confirm whether Hoffman’s tax returns demonstrate that she did 

not receive income from her work on various film projects because the tax returns 

are not included in the administrative record, but the Plan does not dispute 

Hoffman’s account of the content of the tax returns. 
6

As a default, the district court reviews decisions to deny benefits under an 

ERISA plan de novo. Abatie, 458 F.3d at 963.2

 However, when an ERISA plan 

contains a provision that gives the trustees discretion to interpret the terms of the 

plan, district courts review decisions to deny disability benefits applications for an 

abuse of discretion. Id. Here, the parties and the district court agree that the Plan’s 

organizing documents give the Board discretion to interpret the terms of the Plan, 

and thus the district court was correct to apply an abuse of discretion standard. 

As in other contexts, an abuse of discretion with respect to a factual matter 

occurs when the court is “‘left with a definite and firm conviction that a mistake has 

been committed,’ and [the court] may not merely substitute [its] view for that of the 

fact finder. . . . [The court] consider[s] whether application of a correct legal 

standard was ‘(1) illogical, (2) implausible, or (3) without support in inferences that 

 2 In Abatie, this court, sitting en banc, reconsidered its approach to ERISA 

cases when a plan administrator with discretion to interpret the terms of a benefits 

plan denies benefits and conflicts of interest or procedural irregularities are 

involved. 458 F.3d at 959. There, the plaintiff filed suit in district court under 

ERISA, arguing that the plan administrator wrongfully denied her life insurance 

benefits. Id. Following a bench trial, the district court upheld the plan 

administrator’s decision. Id. at 959, 961. On appeal, the plaintiff questioned the 

standard of review the district court applied. Id. at 959. This court held, in 

relevant part, that procedural irregularities that occur during a plan administrator’s 

review must “be weighed in deciding whether an administrator’s decision was an 

abuse of discretion,” and the court may consider “additional evidence when the 

irregularities have prevented full development of the administrative record.” Id. at 

972-73. Finding that the district court did not consider new evidence outside the 

administrative record, the court reversed and remanded for further proceedings. Id.

at 974. 
7

may be drawn from the facts in the record.’” Salomaa v. Honda Long Term 

Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011) (quoting United States v. Hinkson, 

585 F.3d 1247, 1263 (9th Cir. 2009) (en banc) and applying the Hinkson standard to 

an ERISA case). But this court has clarified that the district court’s abuse of 

discretion review in an ERISA case should be informed by consideration of any 

conflicts of interest or procedural irregularities present in the case. Abatie, 458 F.3d 

at 967 (9th Cir. 2006). Specifically, the district court should consider any of the plan 

administrator’s procedural errors or irregularities as a factor in determining whether 

it abused its discretion. Id. at 972. 

This court has repeatedly held “that where the abuse of discretion standard 

applies in an ERISA benefits denial case, ‘a motion for summary judgment is merely 

the conduit to bring the legal question before the district court and the usual tests of 

summary judgment, such as whether a genuine dispute of material fact exists, do not 

apply.’” Nolan v. Heald Coll., 551 F.3d 1148, 1154 (9th Cir. 2009)

(quoting Bendixen v. Standard Ins. Co., 185 F.3d 939, 942 (9th Cir.1999)).3

 But the 

 3 In Nolan, Jeanne Nolan filed an ERISA action in the district court after her 

disability benefits plan denied her application for benefits. 551 F.3d at 1150. The 

district court granted summary judgment to the benefits plan, and held that 

although the benefits plan operated with a conflict of interest, Abatie required the 

court to consider new evidence presented to the district court under an abuse of 

discretion standard. Id. at 1152. But this court reversed and remanded the case to 

the district court, holding, in relevant part, that the traditional summary judgment 

rules do apply to evidence presented outside the record in ERISA cases. Id. at 

1155. 
8

traditional summary judgment standard does apply when the district court is 

considering evidence outside the administrative record to determine whether the plan 

administrators had conflicts of interest or committed procedural irregularities. 

Nolan, 551 F.3d at 1154-55. This abuse of discretion standard that considers

conflicts of interest and procedural irregularities creates a complicated two-stage 

inquiry at summary judgment.4

 

First, we must determine, viewing the evidence in the light most favorable to 

Hoffman, whether there was a genuine issue of material fact as to whether the abuse 

of discretion standard should factor in procedural irregularities committed during the 

Plan’s review. Nolan, 551 F.3d at 1154. Next, without viewing the evidence in the 

light most favorable to Hoffman, we must determine if the Plan abused its discretion 

(under a potentially more skeptical lens) when it denied Hoffman benefits. Id. 

III

The district court correctly applied this complex inquiry at every stage. The 

majority disagrees, and this is where our analyses diverge. 

A. The district court correctly tempered the abuse of discretion standard to 

account for the Plan’s procedural irregularities 

 4 The parties agree that there is no structural conflict of interest in this case. 

Hoffman asserts that there is a conflict of interest because the Plan’s lawyers, from 

Fox Rothschild, represented the Plan in prior litigation and have continued to 

advise the Plan regarding litigation with Hoffman ever since. But Hoffman 

provides no evidence that the lawyers from Fox Rothschild were involved in the 

decision to deny her benefits or to deny her appeal. As a result, her argument in 

favor of finding a conflict of interest lacks support from the record. 
9

Under Nolan, we must first determine whether Hoffman created a genuine 

issue of material fact as to whether irregularities during the proceedings before the 

plan should be factored into the abuse of discretion standard. As noted above, we 

have held that “procedural irregularities” in the ERISA proceedings at the plan level 

should be weighed as part of the abuse of discretion standard. Abatie, 458 F.3d at 

972. If an “administrator engages in wholesale and flagrant violations of the 

procedural requirements of ERISA,” and the administrator’s actions “fall so far 

outside the strictures of ERISA that it cannot be said that the administrator exercised 

the discretion that ERISA and the ERISA plan grant, no deference is warranted.” Id.

at 971-72. However, “[w]hen an administrator can show that it has engaged in an 

ongoing, good faith exchange of information between the administrator and the 

claimant, the court should give the administrator's decision broad deference 

notwithstanding a minor irregularity.” Id. at 972 (quoting Jebian v. Hewlett-Packard 

Co. Employee Benefits Org. Income Prot. Plan, 349 F.3d 1098, 1107 (9th Cir. 

2003)).

Here, as the district court noted, Hoffman adduced evidence that, when 

viewed favorably to her, established a triable issue of fact that the Plan failed to 

provide her with complete copies of the administrative record in a timely fashion 

during the appeals process, most notably the opinion of its new in-house doctor. On 

that basis, the district court determined that there was a genuine issue of material 
10

fact as to whether there were procedural irregularities and proceeded to apply a 

“more skeptical” version of the abuse of discretion test to the Plan’s motion for 

summary judgment. 

The majority recognizes that the district court correctly held that there was a 

genuine issue of material fact as to whether there were procedural irregularities

during the proceedings before the Plan that should be weighed in determining 

whether the Plan abused its discretion. The majority holds, however, that because 

the district court did not specifically mention each piece of evidence Hoffman 

presented to prove the claimed procedural irregularities in its decision granting 

summary judgment to the Plan, it must not have considered that evidence. In so 

doing, the majority imposes a peculiar and unnecessary burden on the district court 

to name specifically each claimed procedural irregularity. Our court has never 

required this.5

The majority also neglects to mention that the district court went on to find 

that, viewing all evidence in the light most favorable to Hoffman: (1) the 

irregularities in the Plan proceedings were relatively minor, (2) the Plan 

 5 The majority cites to Abatie, 458 F.3d at 959, to support its holding that 

“[t]he district court’s failure to consider all of the alleged procedural defects before 

determining the level of skepticism was error.” However, the court in Abatie

reversed and remanded to the district court to consider the plaintiff’s outside 

evidence because it did not consider any of the outside evidence the plaintiff 

presented to the district court. Id. 
11

demonstrated it had engaged in a good-faith exchange of information, and (3) the 

Plan’s decision was still entitled to substantial deference under Abatie.

6

 The district 

court’s decision in this respect was correct. 

Many of the irregularities identified by the majority and by Hoffman concern 

documents that were not produced by the Plan in a timely manner or evidence that 

the Benefits Committee allegedly failed to consider. To begin with, most of 

Hoffman’s complaints regarding the production of documents and other procedural 

 6 The majority compounds its error by incorrectly stating that the district court 

adopted the Plan’s proposed findings of facts and conclusions of law “verbatim.” 

To the contrary, the district court granted the Plan’s motion for summary judgment 

on October 12, 2016 in a detailed, well-reasoned order that explained its decision in 

the court’s own words. 

The district court then ordered the prevailing party, the Plan, to submit 

formalized findings of fact and conclusions of law that echoed the district court’s 

own order to be filed in conjunction with the judgment. Thus, the findings of fact 

and conclusions of law were superfluous to the district court’s decision, which it had 

already articulated in its order granting summary judgment. The Plan submitted the

requested findings of fact and conclusions of law on October 26, 2016. Hoffman 

did not object to the findings of fact and conclusions of law submitted by the Plan. 

The district court adopted the findings of fact and conclusions of law submitted by 

the Plan on November 2, 2016 at the same time that it entered judgment in favor of 

the Plan. 

Nothing about the district court’s process indicates it was improperly 

influenced by the views of a party. The district court articulated the basis of its 

decision independently, then merely requested that the prevailing party ease the 

district court’s workload by formalizing the decision into findings of fact and 

conclusions of law that could be filed concurrently with the judgment. If Hoffman 

thought this procedure was improper, she had nearly a month to object. She did 

not. The majority fails to explain why the district court’s conduct in this case 

should subject its decision to any additional scrutiny or why Hoffman did not 

waive the issue by failing to object below.
12

irregularities concern the failure of the Plan to produce documents during the 

discovery process in the district court. For instance, Hoffman asserts that various 

draft medical reports should have been produced in response to her document 

requests and points to discrepancies in the Plan’s interrogatory responses and 

requests for attorneys’ fees. Of course, the proceedings in the district court took 

place after the Plan proceedings. These arguments are not relevant to the 

determination of whether there were procedural irregularities during the proceedings 

before the Plan. Additionally, if Hoffman felt that the Plan had violated the 

discovery rules, she had a remedy: seek relief from the district court. But Hoffman 

fails even to argue that the Plan failed to comply with any order of the district court 

regarding discovery in this matter.7

When Hoffman’s contentions regarding discovery are put aside, two main 

issues remain. First, Hoffman contends that the Plan did not produce the opinion of 

its new medical director before the administrative appeal hearing. The Plan appears 

to concede that the medical report became detached from the rest of the 

administrative record and was not produced to Hoffman. This is a procedural 

irregularity, but an inadvertent nondisclosure does not implicate the Plan’s attempt 

 7 Hoffman goes so far as to characterize the district court’s decision to rule on 

the Plan’s summary judgment motion, rather than conduct a full bench trial, as a 

“procedural irregularity.” Clearly, the district court’s decisions regarding the 

management of its docket cannot demonstrate that the proceedings before the Plan 

deserve additional scrutiny. 
13

to engage in a good-faith exchange of information. Further, Hoffman does not 

explain how this non-disclosure prejudiced her in any way on her administrative 

appeal. Remember: the new doctor’s report found her not to be disabled. 

Second, Hoffman contends that the Plan never considered her tax returns, 

which she submitted for the Plan’s consideration during the administrative appeal 

process, but were not part of the administrative record. These tax returns 

demonstrate that Hoffman did not receive income from her work on various film 

projects during the time she alleges she was disabled. Again, this irregularity 

appears to have merit, but does not implicate the Plan’s good-faith exchange of 

information. This is particularly true because the Benefits Committee’s decision 

regarding Hoffman’s administrative appeal did not rely, in any way, on Hoffman’s 

alleged employment during the time she claimed to be disabled. Instead, the Benefits 

Committee confined its decision to medical opinions as to Hoffman’s physical 

condition, which have nothing to do with Hoffman’s tax returns. 

Simply put, the inadvertent failure to produce one document that hurts 

Hoffman’s case and the failure to consider documents that had no bearing on the 

Plan’s ultimate decision are procedural irregularities, but do not support applying a 

high level of scrutiny to the Plan’s decision. As a result, even were I to apply a 

slightly more skeptical form of the abuse of discretion test to the Plan’s decision, 
14

bearing the procedural irregularities in mind, I would still afford the Plan broad 

deference. See Abatie, 458 F.3d at 972. 

B. The Plan did not abuse its discretion by relying on the medical opinions it 

had solicited 

When the Plan’s decision is viewed with the proper level of deference, it 

becomes clear that the Plan did not abuse its discretion when it terminated Hoffman’s 

benefits. A detailed review of the medical evidence before the Plan demonstrates 

that the Plan chose between conflicting evidence and its decision was not “illogical, 

implausible, or without support in inferences that may be drawn from the record.” 

Hinkson, 585 F.3d at 1263. 

As discussed above, during the review process, the Plan sent Hoffman’s 

medical records to a medical consulting company. The consulting company 

obtained the opinion of a board certified orthopedic surgeon, who concluded that 

Hoffman was not disabled at any point from an orthopedic perspective.8

 The 

consulting company also obtained the opinion of a board certified psychologist, who 

concluded that Hoffman was not presently disabled and likely had not been disabled 

since late 2004. Finally, the consulting company obtained the opinion of a board 

 8 Hoffman argues insistently that the Plan abused its discretion in relying on 

these opinions because they were reproduced in reports generated by the consulting 

companies and, thus, were hearsay. Hoffman cites no authority for the proposition 

that the rules of evidence apply to ERISA proceedings at the plan level. Hoffman 

also cites no authority for the proposition that a plan abuses its discretion when it 

relies on hearsay. As a result, these arguments are meritless. 
15

certified neurologist (the “First Plan Neurologist”), who concluded that Hoffman 

was not disabled at any time from a neurological perspective. 

After Hoffman appealed, the Plan sent her medical records, including new 

documentation that Hoffman provided, to a new consulting company for an 

additional review. The new consulting company obtained the opinion of a board 

certified orthopedic surgeon, who opined that Hoffman was not disabled from an 

orthopedic perspective. The new consulting company also obtained the opinion of 

a board certified psychologist, who concluded that Hoffman was not disabled from 

a psychological perspective. 

Finally, the new consulting company obtained the opinion of a board licensed 

neurologist (the “Second Plan Neurologist”). The Second Plan Neurologist opined 

that Hoffman was disabled. However, the Second Plan Neurologist went on to opine 

that Hoffman had “no physical neurological restrictions or deficits” and “would be 

able to work in any position that did not require [Hoffman] to engage in rapid word 

reading or other speed processing” and that “there are no mentation restrictions as it 

pertains to [Hoffman’s] capacity to work.” 

Because the Second Plan Neurologist’s opinion was inconsistent with the First 

Plan Neurologist’s opinion, and because the Second Plan Neurologist’s opinion was 

arguably internally inconsistent, the Plan sent Hoffman’s updated medical records 

to the First Plan Neurologist to see if the new information changed his opinion. The 
16

First Plan Neurologist reiterated his opinion that Hoffman was not disabled from a 

neurological perspective.9

 

Hoffman was also permitted to submit medical evidence to the Plan. Hoffman 

submitted letters and reports generated during the relevant time period from no less 

than eleven medical professionals.10 Of those letters and reports, only four opine 

that Hoffman was disabled.11 Two of those letters were from psychologists, who 

opined that Hoffman was disabled in 2015. Another set of letters came from 

Hoffman’s treating physician, who opined that Hoffman had been disabled for the 

entire relevant period of time. Finally, Hoffman directs the Court to the opinion of 

the Plan’s former in-house doctor, who opined, in conjunction with Hoffman’s 2008 

application to convert her disability pension into an occupational disability pension,

 9 Hoffman contends that asking the First Plan Neurologist to opine again 

violated ERISA because, as we held in the First Appeal, the Plan was required to 

obtain a new medical opinion during the administrative appeal. But Hoffman’s 

argument contorts ERISA’s requirements and this Court’s ruling. Although the Plan 

was required to obtain a second medical opinion from an unrelated doctor on appeal, 

nothing in ERISA prohibits the Plan from also relying on the previous doctor’s 

opinion, provided that the Plan also considers the opinion of a new, qualified medical 

professional. See 29 C.F.R. § 2560.503–1(h)(3)(ii); Lafleur v. Louisiana Health 

Serv. & Indem. Co., 563 F.3d 148, 157 (5th Cir. 2009).

10 Hoffman also directs the Court to medical opinions from 2002-2004. 

Although these opinions relate to whether Hoffman was disabled at some point in 

time, they are not as helpful when determining whether the plan abused its discretion 

in terminating her pension as of January 1, 2005. 

11 The balance of the reports and letters submitted by Hoffman describe her 

symptoms, test results, and medical history, but provide no opinion as to whether 

Hoffman is disabled or able to work. 
17

that Hoffman was disabled under the Plan but had not demonstrated that her 

disability was a result of her work.12 

Thus, there was conflicting medical evidence before the Plan when it made its 

final determination regarding Hoffman’s benefits. The Plan based its decision 

regarding Hoffman’s appeal exclusively on the medical evidence and did not 

reference her film work. The Plan’s choice to credit the opinions of the doctors the 

Plan retained to evaluate Hoffman’s claim was plainly not an abuse of discretion. In 

fact, “[i]n the ERISA context, even decisions directly contrary to evidence in the 

record do not necessarily amount to an abuse of discretion.” Taft v. Equitable Life 

Assur. Soc., 9 F.3d 1469, 1473 (9th Cir. 1993), abrogated on other grounds by

Abatie, 458 F.3d at 973.

13

Ultimately, the plan was faced with conflicting medical evidence. It had to 

choose between two competing views, both supported by evidence in the record. 

Under such circumstances, the Plan’s decision to credit the findings of the experts it 

retained was, almost by definition, not “illogical, implausible, or without support in 

 12 This determination was the subject of the First Appeal. 

13 Hoffman’s suggestion that the Plan should have credited the opinions of her 

treating physician over the opinions of non-treating physicians is contrary to 

Supreme Court precedent. The Supreme Court has clearly held 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.” Black & Decker Disability Plan v. Nord, 

538 U.S. 822, 834 (2003).
18

inferences that may be drawn from the record.” Hinkson, 585 F.3d at 1263. As a 

result, the district court was correct to grant the Plan summary judgment.14

IV

Because our precedent requires us to defer to the Plan’s judgment with respect 

to its benefits decisions, and because the Plan plainly did not abuse its discretion in 

relying on medical evidence in the record, I would AFFIRM the district court in full. 

 14 The district court also granted the Plan summary judgment on Hoffman’s 

section 502(c) claim, which alleged that the Plan failed to provide her with records 

from her case in a timely fashion. To sustain a claim under section 502(c), the 

plaintiff must have a colorable underlying claim for wrongful denial of benefits. 

Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). Here, as discussed above, 

Hoffman does not have a colorable claim for wrongful denial of benefits because the 

Plan did not abuse its discretion. Consequently, Hoffman’s section 502(c) claim 

also fails.