FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NANCY J. PANNEBECKER, 

Plaintiff-Appellant, No. 06-16654

v. D.C. No.  CV-01-00825-JAT LIBERTY LIFE ASSURANCE

COMPANY OF BOSTON, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

James A. Teilborg, District Judge, Presiding

Argued and Submitted

June 11, 2008—San Francisco, California

Filed September 18, 2008

Before: M. Margaret McKeown and Ronald M. Gould,

Circuit Judges, and George P. Schiavelli,* District Judge.

Opinion by Judge McKeown

*The Honorable George P. Schiavelli, Central District of California, sitting by designation. 

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COUNSEL

Lisa Counters, Kevin Koelbel, Counters & Koelbel, P.C.,

Chandler, Arizona, for the plaintiff-appellant. 

Michael E. Hensley, Eileen Dennis GilBride, Jones, Skelton

& Hochuli, P.L.C., Phoenix, Arizona, for the defendantappellee. 

OPINION

McKEOWN, Circuit Judge: 

In 1996, coronary artery disease forced Nancy Pannebecker

to quit her lucrative job as a laboratory and department manager for Hughes Electronics Corporation. Pannebecker began

receiving benefits under Hughes’s long-term disability plan

(“Plan”), which was governed by the Employee Retirement

Income Security Act of 1974 (“ERISA”). After paying benefits for over three years, Liberty Life Assurance Company of

Boston (“Liberty”), the Plan’s administrator, denied continued

benefits on the basis that Pannebecker could perform some

sedentary work and was therefore not “disabled” under the

terms of the Plan. 

Pannebecker challenged Liberty’s decision in federal court.

The district court held that Liberty failed to construe the

PANNEBECKER v. LIBERTY LIFE ASSURANCE CO. 13181
Plan’s terms correctly, and remanded for compliance with the

Plan and identification of specific sedentary occupations for

which Pannebecker was suited. On remand, Liberty again

concluded that Pannebecker was not disabled. The district

court upheld the decision and declined to award reinstatement

of benefits following the initial denial and during the remand

period. 

We agree with the district court’s determination that Pannebecker is not “disabled” under the Plan because its terms do

not require Liberty to consider either salary remuneration or

station in life in making a benefits determination. We reverse,

however, the court’s decision to deny the reinstatement of

benefits, and remand with instructions for the court to reinstate Pannebecker’s benefits for the period from Liberty’s initial denial in 2000 to its benefits determination in 2005. We

also remand for the district court to determine whether Pannebecker is entitled to attorney’s fees with respect to the benefits

reinstatement.

BACKGROUND

Pannebecker worked in a variety of technical, managerial,

and marketing roles related to the design and development of

large-scale computer processing systems. Most recently, she

worked as a laboratory and department manager at Hughes,

where her annual income was just over $100,000. In 1996,

after two cardiac bypass surgeries, she stopped working altogether and sought disability benefits under Hughes’s longterm plan. 

The Hughes Plan contains two different definitions of “disability,” depending on the relevant time frame for which a

claim is asserted. Under the “own occupation” benefit, an

employee who is “unable to perform all of the material and

substantial duties of his occupation on an Active Employment

basis because of an Injury or Sickness” is eligible for an initial 18-month benefit. Liberty advised Pannebecker that she

13182 PANNEBECKER v. LIBERTY LIFE ASSURANCE CO.
qualified for continued disability benefits under this definition, but that the company would periodically request updated

information from her. Near the end of the 18-month period,

Liberty pulled Pannebecker’s file for audit and determined

that she still qualified for “own occupation” benefits. 

After the “own occupation” period ends, the Plan defines

a “disabled” person as one who is: 

unable to perform, with reasonable continuity, all of

the material and substantial duties of his own or any

other occupation for which he is or becomes reasonably fitted by training, education, experience, age,

and physical and mental capacity. 

Invoking this clause, in 2000, Liberty denied Pannebecker

continued benefits because she was no longer disabled. Liberty provided a variety of reasons for its decision, including

Pannebecker’s responses to the Activities Questionnaire,

statements by her doctors, the results of video surveillance,

and the report of Dr. Conrad, a cardiologist, who determined

that there was “no objective evidence that the patient would

be unable to perform work involving sedentary activity.” Pannebecker sought review of the denial of benefits, and Liberty

commissioned a follow-up review by Dr. Conrad, who concluded that although Pannebecker’s ability to work might be

affected by angina and other symptoms of heart disease, there

was “no objective evidence . . . of a functional impairment

due to heart disease that would render her unable to perform

sedentary work.” Liberty denied Pannebecker’s request for

review. 

Pannebecker then filed a complaint in the district court

under 29 U.S.C. § 1132(a)(1). The court reviewed Liberty’s

decision de novo because an inherent conflict of interest

existed, as Liberty was the Plan’s administrator and insurer.

The court found that despite “ample evidence in support of

Defendant’s conclusion that Plaintiff was able to perform

PANNEBECKER v. LIBERTY LIFE ASSURANCE CO. 13183
some unnamed ‘sedentary’ job, more is needed to evaluate

Defendant’s decision.” Because Liberty had not offered any

specific sedentary position for which Pannebecker was reasonably fitted by the Plan’s stated criteria, i.e., training, education, experience, age, and physical and mental capacity,

Liberty “failed to make a reasonable inquiry into the type of

skills Plaintiff possesses and whether those skills may be used

at another job,” and “failed to properly apply the Plan provisions.” The court remanded for Liberty to determine the types

of sedentary positions, if any, for which Pannebecker was reasonably fitted based on the Plan’s criteria. In a separate order,

the court denied attorney’s fees. 

On remand, Liberty retained a vocational consultant, Jacqueline Kurth, who concluded that, given Pannebecker’s

background, work history, and current physical capabilities,

she could perform a variety of sedentary occupations, such as

customer service representative, information clerk, receptionist, data entry keyer, and general office clerk. After Liberty

filed Kurth’s report with the district court, Pannebecker

retained Lisa Clapp, a vocational consultant, to perform an

employability assessment. In Clapp’s view, Pannebecker was

totally disabled. She criticized Kurth’s report because Kurth

failed to conduct labor market research and did not call local

employers to gauge their interest in someone like Pannebecker. Kurth followed up with a second report in which she

reaffirmed that Pannebecker was reasonably fitted for several

sedentary occupations. Liberty then notified Pannebecker that

it declined to alter its benefits determination. 

Pannebecker moved for judgment under Federal Rule of

Civil Procedure 52(c), and Liberty filed a motion for summary judgment.1

 The district court, reviewing Liberty’s deci1Liberty acknowledged to the district court that it should have moved

for judgment under Rule 52, and not summary judgment, because of the

existence of a genuine issue of material fact. On this basis, the court

denied Liberty’s motion. 

13184 PANNEBECKER v. LIBERTY LIFE ASSURANCE CO.
sion de novo, upheld the denial of benefits. According to the

court, Pannebecker was not disabled under the terms of the

Plan because she was able to perform the duties of other occupations that Kurth had identified as reasonably fitted to her by

virtue of her training, education, experience, age, and physical

and mental capacity. The court rejected Pannebecker’s claim

for retroactive benefits. 

STANDARD OF REVIEW

We review de novo the district court’s choice and application of the standard of review to decisions by ERISA fiduciaries, and we review for clear error its underlying findings

of fact. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955,

962 (9th Cir. 2006) (en banc). At the time of its ruling, the

district court did not have the benefit of Abatie, which clarified the standard of review.

2

 Operating under the framework

of our previous precedent in Atwood v. Newmont Gold Co.,

Inc., 45 F.3d 1317 (9th Cir. 1995), the court found that

because Liberty was both the Plan’s administrator and insurer,

an inherent conflict of interest existed. The court also concluded that, because Pannebecker presented “material, probative evidence,” an inherent conflict of interest tainted

Liberty’s decision.3 Consequently, a presumption arose in

Pannebecker’s favor that Liberty failed to rebut. 

Atwood was overruled by an en banc panel of this court in

Abatie, which applied an abuse of discretion standard to

review decisions of a discretion-granting plan, even if the

administrator has a conflict of interest. 458 F.3d at 965. The

2

In 2004, the district court conducted a conflict-of-interest analysis and

concluded that de novo review was appropriate under Atwood. When it

issued its Rule 52(c) judgment on August 16, 2006, it incorporated this

earlier conclusion. Abatie had been filed the previous day, and was not yet

widely circulated. 

3The “material, probative evidence” that Pannebecker presented was

that Liberty required “objective” evidence of her disability, even though

the Plan’s definition of “disability” did not mention such a requirement.

PANNEBECKER v. LIBERTY LIFE ASSURANCE CO. 13185
Plan here was a discretion-granting one, as it stated that Liberty “shall possess the authority, in its sole discretion, to construe the terms of this policy and to determine benefit

eligibility thereunder.” (emphasis added). See id. (stating that

a plan that bestows on the administrator the sole “responsibility to interpret the terms of the plan and to determine eligibility for benefits” is a discretion-granting one). 

Abatie thus bound the district court to review Liberty’s

decision for abuse of discretion. In evaluating whether an

abuse of discretion occurred, the court should make “something akin to a credibility determination about the insurance

company’s or plan administrator’s reason for denying coverage[,]” and adjust its level of skepticism in proportion to its

evaluation of the conflict of interest. Id. at 969. 

Despite the “ships passing in the night” timing of the Abatie decision, the district court’s evaluation of disability

resulted in no error. The court reviewed Liberty’s decision de

novo, which is a more rigorous standard than the “informed”

abuse of discretion review that Abatie requires. Id. at 965-74.

That the court affirmed Liberty’s denial without giving any

deference to Liberty’s decision makes it unlikely that on

remand, the court would find, under a standard friendlier to

Liberty, that Liberty abused its discretion. We do not read

Abatie or our cases interpreting it to require a different result.

See Saffon v. Wells Fargo & Co. Long Term Disability Plan,

522 F.3d 863, 868-69 (9th Cir. 2008) (explaining that courts

should discount deference based on conflicts of interest “to

overcome the ‘serious . . . danger of conflicted plan decisionmaking’ ” (citation omitted)). 

Analysis

Pannebecker challenges Liberty’s benefits decision primarily on the ground that Liberty failed to consider salary remuneration in finding that she was qualified for certain entry13186 PANNEBECKER v. LIBERTY LIFE ASSURANCE CO.
level positions. She also disputes the court’s denial of retroactive reinstatement of benefits and attorney’s fees. 

I. DISABILITY UNDER THE PLAN

[1] We begin our evaluation of Liberty’s benefits denial

with the governing plan documents. See Metro. Life Ins. Co.

v. Parker, 436 F.3d 1109, 1113 (9th Cir. 2006). Liberty was

required to benchmark Pannebecker’s eligibility for benefits

against the Plan definition of “disabled,” i.e., “unable to perform, with reasonable continuity, all of the material and substantial duties of his own or any other occupation for which

he is or becomes reasonably fitted by training, education,

experience, age, and physical and mental capacity.” (emphasis

added). See Saffle v. Sierra Pac. Power Co. Bargaining Unit

Long Term Disability Income Plan, 85 F.3d 455, 458 (9th Cir.

1996) (stating that a plan administrator “abuses its discretion

if it construes provisions of the plan in a way that ‘conflicts

with the plain language of the plan’ ” (citations omitted)). 

[2] The record supports Liberty’s conclusion that Pannebecker was able to perform the duties of other occupations for

which she was reasonably fitted by the Plan’s stated criteria.

One of Pannebecker’s doctors noted in 2000 that she was

“doing well,” had been maintaining an active lifestyle, and

was subjectively asymptomatic. Pannebecker stated in her

Activities Questionnaire that she exercised a few times a

week, could sit indefinitely and stand for 15 minutes at a time,

went grocery shopping and did limited mall shopping. The

video surveillance depicted Pannebecker shopping, driving,

carrying purchased items, walking limited distances, and eating out with friends. Dr. Conrad concluded that Pannebecker

had “reasonably good functional capacity, with stable angina,

and is able to perform normal activities, including exercise.”

Kurth studied and discussed Pannebecker’s extensive medical

history, noting that despite suffering from severe angina in

2001, she recently reported feeling “absolutely great,” and

“like ‘a miracle.’ ” Kurth found that Pannebecker had transPANNEBECKER v. LIBERTY LIFE ASSURANCE CO. 13187
ferable work skills that included the ability to coordinate others, analyze and compute data, and present information in a

clear and articulate manner. Pannebecker felt that managing

people, working under deadlines, and meeting customer

expectations were “stressful” activities, so Kurth, balancing

these considerations, suggested a range of sedentary jobs,

from customer service representative, to information clerk,

receptionist, data entry keyer, and general office clerk, as

being within Pannebecker’s transferable work skills. This evidence supports Liberty’s determination that Pannebecker was

reasonably fitted for some sedentary positions.4

Although the Plan does not require Liberty to consider a

claimant’s current salary or station in life in making a disability determination, Pannebecker asks us to import those qualifications into the Plan’s terms. We decline to do so. 

[3] As we observed in McKenzie v. General Telephone Co.

of California, the “language of the ‘any occupation’ standard

is not demanding.” 41 F.3d 1310, 1317 (9th Cir. 1994), overruled on other grounds by Saffon, 522 F.3d at 872 n.2. The

plan in McKenzie provided that a person was “disabled” if he

was “completely unable to engage in any and every duty pertaining to any occupation or employment for wage or profit

for which you are or become reasonably qualified by training,

education or experience.” Id. at 1313 n.2. We interpreted that

language to mean what it said: a claimant was not disabled if

he could perform any job for which he was qualified by training, education, or experience. See id. at 1317. Here, the Plan’s

4Pannebecker’s challenges to Kurth’s report do not alter this conclusion.

Although not extensive, Kurth’s mention of Pannebecker’s age and brief

discussion of her mental state and need to avoid stress indicate that these

considerations were not ignored. Similarly, Clapp’s criticisms and methodology do not undermine Kurth’s report. The Plan’s definition of “disability” does not require Liberty to identify a specific employer for

Pannebecker. Nor is there any compelling evidence that the labor market

research performed by Clapp was preferable to Kurth’s transferable skills

analysis. 

13188 PANNEBECKER v. LIBERTY LIFE ASSURANCE CO.
“any other occupation” language similarly sets out the criteria

by which Liberty is to judge whether a claimant is disabled.

As in McKenzie, sufficient evidence showed that Pannebecker

could perform other occupations for which she was reasonably fitted by virtue of these criteria. 

Despite the broad reach of the Plan’s “any other occupation” language, Pannebecker seizes on a reference in Madden

v. ITT Long Term Disability Plan for Salaried Employees,

914 F.2d 1279 (9th Cir. 1990), to support her claim that we

should impose a salary remuneration requirement. We were

asked in Madden to consider Helms v. Monsanto Co. Inc., 728

F.2d 1416 (11th Cir. 1984), in which the plan defined total or

permanent disability to mean disabled “by reason of bodily

injury or disease so as to be prevented thereby from engaging

in any occupation or employment for remuneration or profit[.]” Helms, 728 F.2d at 1418. The Eleventh Circuit interpreted that plan’s definition of “disabled” to require a

“physical inability to follow any occupation from which [one]

could earn a reasonably substantial income rising to the dignity of an income or livelihood, even though the income is not

as much as he earned before the disability.” Id. at 1421-22. 

[4] In contrast, the plan we examined in Madden defined

“disabled” as “unable to engage in any occupation for which

[he is] qualified, based on [his] training, education, or experience.” 914 F.2d at 1285. Pannebecker hangs her hat on our

statement in Madden that that plan’s definition of “disability,”

“which recognize[d] a claimant’s personal training, education,

and experience, favor[ed] a claimant far more than Madden’s

proposed Helms definition, which merely focused on the likelihood of a ‘reasonably substantial income’ that ‘approach[es]

the dignity of a livelihood.’ ” Id. at 1285-86 (last alteration

appears in original). Pannebecker takes this language to mean

that, as a categorical rule, an administrator must consider salary remuneration as a threshold consideration, with “training,

education, or experience” as the next step up in requirements

that a claimant must meet to be not “disabled.” But PannePANNEBECKER v. LIBERTY LIFE ASSURANCE CO. 13189
becker’s reading of Madden is incomplete. In stating that the

Madden plan’s “disability” definition was more favorable to

claimants than the plan in Helms, we were simply making the

observation that the number of jobs for which a person is

qualified when considering one’s personal training, education,

or experience, is less than the number of jobs that have a “reasonably substantial income” that “approach[es] the dignity of

a livelihood.” Id. In other words, a plan that incorporates

“training, education, or experience” requires some individuation in the analysis. But we were not, in Madden, importing

into every ERISA plan a definition of “disability” that considers a claimant’s most recent salary or station in life. 

[5] The Plan here required only that Pannebecker be able

to perform the duties of any occupation for which she was

reasonably fitted by training, education, experience, age, and

physical and mental capacity. Given the Plan’s plain terms,

Liberty did not abuse its discretion in failing to consider Pannebecker’s most recent salary or station in life in its benefits

determination.5See Richardson v. Pension Plan of Bethlehem

Steel Corp., 112 F.3d 982, 985 (9th Cir. 1997) (stating that

when the parties dispute the interpretation of an ERISA plan,

“ ‘courts should first look to explicit language of the agreement to determine, if possible, the clear intent of the parties’ ”

(quoting Armistead v. Vernitron Corp., 944 F.2d 1287, 1293)

(6th Cir. 1991))). 

5Pannebecker gestures to Liberty’s Policies Procedures and Exceptions

for “any occ” evaluations (“PP&E”), which indicate that Liberty should

consider “reasonable replacement of income based on TEE [training, education, and experience].” Liberty presented evidence that the PP&E are

not hard and fast rules applied in every case. Pannebecker also cites Liberty’s “rehabilitation employment benefit,” which allows claimants in

approved positions to continue receiving benefits until they earn 20% of

their pre-disability earnings. We agree with the district court’s conclusions

that these references “cannot reasonably be read to modify the [Plan’s]

definitions of disabled, and furthermore, Plaintiff has made no showing

that she has attempted to avail herself of such a benefit.” 

13190 PANNEBECKER v. LIBERTY LIFE ASSURANCE CO.
Pannebecker’s remaining challenges, including a variety of

alleged procedural deficiencies, have no legal traction or were

not raised before the district court. 

II. REINSTATEMENT OF BENEFITS

The district court concluded in 2004 that Liberty “failed to

properly apply the Plan provisions” and “failed to make a reasonable inquiry into the type of skills Plaintiff possesses and

whether those skills may be used at another job,” but denied

the retroactive reinstatement of benefits. We review for abuse

of discretion the district court’s denial of reinstatement of

benefits. See Grosz-Salomon v. Paul Revere Life Ins. Co., 237

F.3d 1154, 1163 (9th Cir. 2001). 

[6] As the Seventh Circuit has recognized, the ERISA

claimant whose initial application for benefits has been

wrongfully denied is entitled to a different remedy than the

claimant whose benefits have been terminated. Hackett v.

Xerox Corp. Long-Term Disability Income Plan, 315 F.3d

771, 775-76 (7th Cir. 2003). Where an administrator’s initial

denial of benefits is premised on a failure to apply plan provisions properly, we remand to the administrator to apply the

terms correctly in the first instance. See Saffle, 85 F.3d at 460-

61 (ordering remand where an ERISA administrator “misconstrued the Plan and applied a wrong standard to a benefits determination”).6

 But if an administrator terminates continuing

benefits as a result of arbitrary and capricious conduct, the

6Our decision in Patterson v. Hughes Aircraft Co., 11 F.3d 948 (9th Cir.

1993), is not to the contrary. Patterson was deemed disabled by his plan’s

administrator and received benefits for two years, until they were abruptly

terminated. Id. at 949. His plan explicitly limited the payment of benefits

to only two years if he suffered from a “mental, nervous, or emotional disorder[ ].” So, Patterson’s benefits were scheduled to terminate unless it

was established that he did not suffer from such a disorder. Reinstating

benefits while remanding for the administrator to determine the nature of

his disability could have resulted in a windfall to Patterson if it were later

determined that his disability was caused by a mental disorder. 

PANNEBECKER v. LIBERTY LIFE ASSURANCE CO. 13191
claimant should continue receiving benefits until the administrator properly applies the plan’s provisions. See GroszSalomon, 237 F.3d at 1163 (stating that benefits should be

reinstated where “but for [the insurer’s] arbitrary and capricious conduct, [the insured] would have continued to receive

the benefits” (internal quotation marks and citation omitted)).

This distinction in remedies “makes perfect sense[,]” as the

improper termination in the latter case was “the result of arbitrary and capricious procedures, and therefore [ ] benefits

could not have been terminated by those procedures.”

Hackett, 315 F.3d at 776. 

[7] Liberty distinguishes Hackett on the basis that the

administrator in Hackett terminated benefits as a result of

defective procedures, which is not the case before us. But,

whether the administrator abused its discretion because the

decision was substantively arbitrary or capricious, or because

it failed to comply with required procedures, benefits may still

be reinstated if the claimant would have continued receiving

benefits absent the administrator’s arbitrary and capricious

conduct. As we have noted, in the ERISA world, “no great

wall divides procedural from substantive violations.” Blau v.

Del Monte Corp., 748 F.2d 1348, 1353 (9th Cir. 1984). 

[8] Pannebecker was already receiving benefits, and, but

for Liberty’s arbitrary and capricious conduct—i.e., its failure

to apply the terms of the Plan properly—she would have continued receiving them. While Liberty was given a second

opportunity to determine whether Pannebecker was “disabled” under the Plan, that second chance should not have left

Pannebecker empty-handed during the time that it took Liberty to comply with the Plan’s requirements. The district court

should have awarded Pannebecker benefits from the time of

Liberty’s improper denial in 2000 until the company’s decision of May 3, 2005, to decline to alter its benefits determination. 

13192 PANNEBECKER v. LIBERTY LIFE ASSURANCE CO.
III. ATTORNEY’S FEES

[9] In an ERISA action, a court in its discretion may allow

reasonable attorney’s fees and costs to either party. 29 U.S.C.

§ 1132(g)(1). The district court denied Pannebecker’s request

for attorney’s fees on the basis that she failed to establish a

right to benefits. As a result of this appeal, however, Pannebecker is entitled to have her benefits reinstated for the short

period following the court’s initial remand. Because she

achieved some of the benefit that she sought in bringing suit,

we remand for the court to determine, in its discretion,

whether Pannebecker is entitled to reasonable attorney’s fees

and costs. 

We affirm the court’s Rule 52(c) judgment in favor of Liberty, on the basis that Pannebecker was not disabled under the

Plan. We reverse the denial of reinstatement of benefits, and

remand for consideration of attorney’s fees with respect to the

benefits reinstatement. 

AFFIRMED IN PART; REVERSED AND

REMANDED IN PART. 

Each party to pay its own costs on appeal. 

PANNEBECKER v. LIBERTY LIFE ASSURANCE CO. 13193