FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT MONTOUR, an individual;  No. 08-55803

TINA MONTOUR, an individual, D.C. No.

Plaintiffs-Appellants, 2:07-cv-05215-DSFv. RZ

HARTFORD LIFE & ACCIDENT ORDER

INSURANCE COMPANY, AMENDING

a Connecticut Corporation, OPINION AND

Defendant-Appellee.  DENYING

PETITION FOR

REHEARING AND

PETITION FOR

REHEARING EN

BANC AND

AMENDED

OPINION 

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

June 1, 2009—Pasadena, California

Filed September 14, 2009

Amended November 19, 2009

Before: William A. Fletcher, Richard R. Clifton and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Clifton

15367
COUNSEL

Bradley P. Knypstra, Knypstra & Associates, Irvine, California, for the plaintiffs-appellants.

Bruce D. Celebrezze, Dennis G. Rolstad (argued) and Erin A.

Cornell, Sedgwick, Detert, Moran & Arnold LLP, San Francisco, California, for the defendant-appellee.

ORDER

The opinion in this case, filed September 14, 2009, is

amended by revising the first sentence of the paragraph that

starts at the bottom of page 13360 of the slip opinion and

extends onto page 13361. The sentence previously started:

15370 MONTOUR v. HARTFORD LIFE & ACCIDENT
In clarifying the standard of review, Abatie also

abrogated a line of cases, including Jordan v. Northrop Grumman Corporation Welfare Benefit Plan,

370 F.3d 869 (9th Cir. 2004), and Bendixen v. Standard Insurance Company, 185 F.3d 939 (9th Cir.

1999), that had directed reviewing courts . . . .

That sentence is amended as follows:

In clarifying the standard of review, Abatie abrogated a line of cases, including Jordan v. Northrop

Grumman Corporation Welfare Benefit Plan, 370

F.3d 869 (9th Cir. 2004), and Bendixen v. Standard

Insurance Company, 185 F.3d 939 (9th Cir. 1999),

to the extent that the cases directed reviewing courts

. . . .

With this amendment, the panel has voted to deny the petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing

en banc, and no judge of the court has requested a vote on it.

Fed. R. App. P. 35.

The petition for rehearing and petition for rehearing en

banc, filed October 13, 2009, are DENIED. No further petitions for rehearing or for rehearing en banc may be filed.

OPINION

CLIFTON, Circuit Judge:

This case presents the question of how a district court

should apply the abuse of discretion standard when reviewing

a decision by the administrator of an employee benefits plan

governed by the Employee Retirement Income Security Act

MONTOUR v. HARTFORD LIFE & ACCIDENT 15371
of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S.C.

§§ 1001-1461, when that administrator has a conflict of interest. We conclude that a reviewing court must take into

account the conflict and that this necessarily entails a more

complex application of the abuse of discretion standard. Specifically, a modicum of evidence in the record supporting the

administrator’s decision will not alone suffice in the face of

such a conflict, since this more traditional application of the

abuse of discretion standard allows no room for weighing the

extent to which the administrator’s decision may have been

motivated by improper considerations.

Robert Montour appeals the district court’s order granting

summary judgment in favor of Hartford Life and Accident

Insurance Company in his action challenging Hartford’s decision to terminate his long-term disability benefits as an abuse

of its discretion. We reverse and, applying the proper standard

of review to the facts of this case, conclude that Hartford

abused its discretion because its conflict of interest too heavily influenced its termination decision. Accordingly, we

remand to the district court for an order reinstating Montour’s

long-term disability benefits.

I. Background

As an employee of Conexant Systems, Inc. for approximately thirty-seven years, Montour participated in his

employer’s group long-term disability insurance plan, which

is a welfare benefit plan governed by ERISA. Hartford is both

the insurer and the administrator of the Plan. The Plan grants

Hartford, as the administrator, discretionary authority to interpret Plan terms and to determine eligibility for benefits,1

 and

1Specifically, the policy provides:

Who interprets policy terms and conditions?

We [Hartford] have full discretion and authority to determine eligibility for benefits and to construe and interpret all terms and

provisions of the Group Insurance Policy. 

15372 MONTOUR v. HARTFORD LIFE & ACCIDENT
it places the burden of proving both initial and ongoing disability on the claimant.

In July 2003 Montour took a medical leave of absence from

his position as a telecommunications manager after developing symptoms of acute stress disorder. At the time, he was

fifty-five years old. In January 2004, following a period of

180 days during which no benefits were payable under the

Plan, Hartford accepted Montour’s application for benefits

under the Plan and began paying him disability benefits.

At the outset of his psychiatric illness, Montour consulted

several times with his primary care physician, Dr. Samuel

Park. In September 2003 he began regular psychotherapy sessions with a psychiatrist. His last documented psychotherapy

session took place in April 2005.

Meanwhile, in June 2004 Montour consulted Dr. Kenneth

Kengla, an orthopedic surgeon, about pain in his right knee

and his lower back. Dr. Kengla diagnosed Montour with

degenerative changes in both regions and notified Hartford in

September 2004 that Montour was at that time also suffering

from physical disability that prevented him from returning to

the labor force. In October 2004 Dr. Kengla performed

arthroscopic surgery on Montour’s right knee. The subject of

Montour’s back condition did not come up again during their

consultations until April 2005. Subsequently, Montour consulted Dr. Kengla about his back pain during appointments in

December 2005 and May 2006.

Dr. Kengla consistently maintained to Hartford that Montour remained physically disabled and unable to work in any

job as a result of his back and knee impairments. Specifically,

he listed the following restrictions on Montour’s physical

activities: 1) “no sitting for more than 15-20 min[utes] at a

time”; 2) “no prolonged walking”; 3) “no standing greater

than 15 min[utes] at a time”; 4) “no lifting or carrying greater

than 10 [pounds;]” 4) “no work at or above shoulder level”;

MONTOUR v. HARTFORD LIFE & ACCIDENT 15373
5) “no moderate pushing activities”; 6) “no moderate pulling

activities”; and 7) “no driving greater than 30 min[utes] at a

time.”

In November and December 2005 Hartford hired two outside companies to conduct surveillance on Montour over the

course of four nonconsecutive days. Video footage from this

surveillance depicted Montour driving his car to perform

occasional errands, such as picking up his grandchildren from

school, going to the pharmacy, and getting a haircut. He was

observed once bending at the waist to reach into his car.

In March 2006 a Hartford investigator conducted a personal

interview with Montour at his home, during which Montour

listed a “bad back, [an] arthritic right knee, and sleep apnea”

as the “disabling medical condition(s)” preventing him from

returning to work. He also described an inability to concentrate, which he attributed to the medication he must take to

treat his “constant pain.” The investigator observed that Montour remained alert and responsive during the entire four-anda-half hour interview, although he called the investigator by

the wrong name about two hours into the interview. Montour

acknowledged that the surveillance video footage accurately

depicted his level of functionality. He was physically able to

complete the interview, but he demonstrated signs of pain in

front of the investigator, such as moaning when he stood up

or twisted, walking around his house stiffly with a slight limp,

and complaining of back pain three times during the final two

hours. 

In May 2006 a Hartford nurse case manager submitted letters to Dr. Kengla and Dr. Park surmising that Montour was

capable of performing “sedentary to light” work and soliciting

their agreement. Dr. Park signed and returned the letter, which

signified that he either agreed or found “no contraindications

to this work capacity level.” Dr. Kengla, on the other hand,

indicated that he disagreed with Hartford’s conclusions, citing

15374 MONTOUR v. HARTFORD LIFE & ACCIDENT
Montour’s persistent orthopedic symptoms and physical

restrictions.

In July 2006 Hartford hired a consulting physician, Dr.

Gale Brown, to conduct a file review. Dr. Brown analyzed

Montour’s medical records for the 2003-2006 period, including X-rays and MRIs of Montour’s lower back taken in June

2004 and May 2006, Montour’s pharmacy records for the

2004-2006 period, Hartford’s surveillance video and accompanying reports, and the personal interview report. He also

spoke with Dr. Kengla on the phone. Dr. Brown concluded

that medical evidence supported the existence of a lower back

condition called “degenerative spondylostenosis/DDD” but

that Dr. Kengla’s offered restrictions were excessive for this

“mild to moderate” condition and understated Montour’s

demonstrated and admitted physical abilities. Dr. Brown

acknowledged that medical evidence supported Montour’s

chronic pain but found that Montour was nevertheless capable

of working full-time with modest restrictions, such as changing positions every thirty to forty-five minutes.

Hartford next enlisted a vocational rehabilitation expert to

compile an Employability Analysis Report, which evaluated

Montour’s experience, qualifications, and the physical restrictions identified by Dr. Brown. That expert concluded that

Montour was capable of working in a high-level managerial

capacity in five different fields. 

In August 2006 Hartford informed Montour of its decision

to terminate his benefits in light of its conclusion that he no

longer met the policy’s definition of disability. Montour

appealed this decision internally and included a vocational

appraisal report by Gene Bruno. The Bruno report concluded

that Montour was “not employable in any setting” and that

Hartford’s decision was based on numerous mistakes, including a disregard for the fact that the Social Security Administration (SSA) considered Montour to be “totally disabled.”

MONTOUR v. HARTFORD LIFE & ACCIDENT 15375
In response, Hartford hired Dr. Renat Sukhov to conduct a

second file review. Dr. Sukhov reviewed Montour’s records

for evidence of a physical condition that would preclude sedentary work and, like Dr. Brown, found none. He noted in

particular a lack of objective, clinical data demonstrating the

extent to which Montour’s pain impacted his functionality. He

also noted that Montour’s activities depicted on the surveillance videos exceed the activity requirements of a sedentary

job. Dr. Sukhov concluded that Montour could work, at minimum, in a sedentary job with reasonable restrictions, such as

avoiding static work posture, not lifting objects weighing

more than twenty pounds, and not pushing or pulling loads

weighing more than thirty to thirty-five pounds.

In light of concerns raised in the Bruno report, Hartford

also requested a vocational specialist to conduct an Employability Analysis Report addendum, which reached the same

conclusion as the Employability Analysis Report regarding

the sedentary nature and thus the feasibility of the five proposed managerial positions. In February 2007 a Hartford

appeal specialist affirmed the company’s previous decision to

terminate Montour’s benefits.

Having exhausted his administrative remedies, in June

2007 Montour and his wife, Tina Montour, filed suit against

Hartford in California Superior Court to recover benefits

under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B). The

complaint also alleged breach of fiduciary duty, promissory

estoppel, invasion of privacy, intentional infliction of emotional distress, and loss of consortium. Hartford removed the

case to the Central District of California and promptly moved

to dismiss. The district court dismissed the causes of action

for breach of fiduciary duty and promissory estoppel,

remanded the claims for invasion of privacy, intentional

infliction of emotional distress, and loss of consortium back

to state court, and proceeded to hold a bench trial on the

administrative record for the remaining ERISA benefits

recovery claim.

15376 MONTOUR v. HARTFORD LIFE & ACCIDENT
In April 2008 the court entered its Findings of Fact and

Conclusions of Law ordering Judgment in favor of Hartford.

The district court concluded that although Hartford had a

structural conflict of interest in its position as both the administrator of the insurance policy and the payor of benefits, it did

not abuse its discretion in determining that Montour failed to

provide sufficient evidence to demonstrate disability within

the meaning of the policy.

Montour timely appealed. 

II. Standard of Review

The district court’s findings of fact in a bench trial on the

administrative record are reviewed under the clearly erroneous standard. See Pannebecker v. Liberty Life Assurance Co.

of Boston, 542 F.3d 1213, 1217 (9th Cir. 2008); see also

Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 & n.6 (9th

Cir. 1999) (en banc). In contrast, we review “a district court’s

choice and application of the appropriate standard for reviewing benefits decisions by an ERISA plan administrator” de

novo. Sznewajs v. U.S. Bancorp Amended & Restated Supplemental Benefits Plan, 572 F.3d 727, 732 (9th Cir. 2009)

(internal quotation marks omitted).

As for review of a plan administrator’s decision, “[t]he

Supreme Court has held that a denial of benefits ‘is to be

reviewed under a de novo standard unless the benefit plan

gives the administrator . . . discretionary authority to determine eligibility for benefits or to construe the terms of the

plan.’ ” Burke v. Pitney Bowes Inc. Long-Term Disability

Plan, 544 F.3d 1016, 1023 (9th Cir. 2008) (quoting Firestone

Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989)).

Where, as here, the plan “does grant such discretionary

authority, we review the administrator’s decision for abuse of

discretion.” Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 866 (9th Cir. 2008). The manner in

which a reviewing court applies the abuse of discretion stanMONTOUR v. HARTFORD LIFE & ACCIDENT 15377
dard, however, depends on whether the administrator has a

conflicting interest. 

[1] 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. See

Sznewajs, 572 F.3d at 733-35; Boyd v. Bert Bell/Pete Rozelle

NFL Players Ret. Plan, 410 F.3d 1173, 1178-79 (9th Cir.

2005). In these circumstances, the plan administrator’s decision can be upheld if it is “grounded on any reasonable basis.”

See Sznewajs, 572 F.3d at 734-35 (internal quotation marks

omitted). In other words, where there is no risk of bias on the

part of the administrator, the existence of a “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. See Boyd, 410 F.3d at 1179; see

also Sznewajs 572 F.3d at 733-35. 

[2] Commonly, however, the same entity that funds an

ERISA benefits plan also evaluates claims, as is the case here.

See Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2346, 2348

(2008) (“MetLife II”).2 Under these circumstances, the plan

administrator faces a structural conflict of interest: since it is

also the insurer, benefits are paid out of the administrator’s

own pocket, so by denying benefits, the administrator retains

money for itself. Application of the abuse of discretion standard therefore requires a more complex analysis. See Abatie

v. Alta Health & Life Ins. Co., 458 F.3d 955, 965 (9th Cir.

2006) (en banc) (“[T]he existence of a conflict of interest is

relevant to how a court conducts abuse of discretion review.”

(emphasis added)). Simply 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 adminis2We refer to the Supreme Court’s decision as “MetLife II” because we

also reference the lower court’s opinion, infra, which MetLife II affirmed.

15378 MONTOUR v. HARTFORD LIFE & ACCIDENT
trator’s conflict of interest as a factor in the analysis. See

MetLife II, 128 S. Ct. at 2346, 2348, 2350; Abatie, 458 F.3d

at 968-69. 

[3] 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. See MetLife II, 128 S. Ct. at 2351-52 (describing the

garden variety “combination-of-factors method of review”).

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. Other factors that frequently arise in the ERISA context

include the quality and quantity of the medical evidence,

whether the plan administrator subjected the claimant to an

in-person medical evaluation or relied instead on a paper

review of the claimant’s existing medical records, whether the

administrator provided its independent experts “with all of the

relevant evidence[,]” and whether the administrator considered a contrary SSA disability determination, if any.3

See

MetLife II, 128 S. Ct. at 2352; see also Saffon, 522 F.3d at

869-73.

The weight the court assigns to the conflict factor depends

on the facts and circumstances of each particular case. For

example, the Supreme Court has explained that this factor

should prove more important (perhaps of great

importance) where circumstances suggest a higher

3For example, in MetLife II the Supreme Court endorsed the approach

taken by the Sixth Circuit, which weighed three factors, namely, the medical evidence, a contrary SSA disability determination, and the administrator’s inherent conflict of interest, and ultimately concluded that the

administrator had abused its discretion in denying benefits to the claimant.

See Glenn v. MetLife, 461 F.3d 660, 666-74 (6th Cir. 2006) (“MetLife I”),

aff’d by MetLife II, 128 S. Ct. at 2351-52 (finding “nothing improper in

the way in which the [Sixth Circuit] conducted its review”). 

MONTOUR v. HARTFORD LIFE & ACCIDENT 15379
likelihood that it affected the benefits decision,

including, but not limited to, cases where an insurance company administrator has a history of biased

claims administration. It should prove less important

(perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias

and to promote accuracy, for example, by walling off

claims administrators from those interested in firm

finances, or by imposing management checks that

penalize inaccurate decisionmaking irrespective of

whom the inaccuracy benefits.

MetLife II, 128 S. Ct. at 2351 (internal citation omitted and

emphases added); see also Abatie, 458 F.3d at 967 (holding

that in weighing a conflict of interest, the court’s discretionary

review must be “informed by the nature, extent, and effect”

that conflict may have had “on the decision-making process”).

Our court has implemented this approach by including the

existence of a conflict as a factor to be weighed, adjusting the

weight given that factor based on the degree to which the conflict appears improperly to have influenced a plan administrator’s decision. See Abatie, 458 F.3d at 968; see also Nolan v.

Heald College, 551 F.3d 1148, 1153-54 (9th Cir. 2009); Saffon, 522 F.3d at 867-68. These cases should not be mistaken

to imply that the existence of a conflict of interest alters the

standard of review itself, rather than merely its application.

As Abatie explicitly held, if a conflict of interest exists,

“abuse of discretion review applies” and “that conflict must

be weighed as a factor in determining whether there is an

abuse of discretion.” 458 F.3d at 965 (internal quotation

marks and alteration omitted). In fact, Abatie “conscious[ly]

reject[ed]” the “sliding scale metaphor” that some other circuits had adopted, which involved adjusting the level of “deference” or “scrutiny” in the standard of review itself in

proportion to the “seriousness of the conflict.” Id. at 967

(internal quotation marks omitted); see also id. at 968 (“[I]n

any given case, all the facts and circumstances must be con15380 MONTOUR v. HARTFORD LIFE & ACCIDENT
sidered, and nothing ‘slides[.]’ ”). This comports with the

Supreme Court’s more recent pronouncement “that a reviewing court should consider [a] conflict as a factor in determining whether the plan administrator has abused its discretion in

denying benefits[,] and that the significance of the factor will

depend upon the circumstances of the particular case.”

MetLife II, 128 S. Ct. at 2346.

[4] In any event, Abatie explained that the court should

adjust the level of skepticism with which it reviews a potentially biased plan administrator’s explanation for its decision

in accordance with the facts and circumstances of the case.

See 458 F.3d at 969; see also Saffon, 522 F.3d at 868. If those

facts and circumstances indicate the conflict may have tainted

the entire administrative decisionmaking process, the court

should review the administrator’s stated bases for its decision

with enhanced skepticism: this is functionally equivalent to

assigning greater weight to the conflict of interest as a factor

in the overall analysis of whether an abuse of discretion

occurred.

[5] In clarifying the standard of review, Abatie abrogated

a line of cases, including Jordan v. Northrop Grumman Corporation Welfare Benefit Plan, 370 F.3d 869 (9th Cir. 2004),

and Bendixen v. Standard Insurance Company, 185 F.3d 939

(9th Cir. 1999), to the extent that the cases directed reviewing

courts to disregard structural conflicts of interest and affirm

an administrative decision “grounded on any reasonable

basis,” unless a plaintiff could produce sufficient evidence

that the conflict was “serious.” See Abatie, 458 F.3d at 966-

67, 969. This more traditional application of the abuse of discretion standard allowed no room for a reviewing court to factor the existence of a conflict of interest into the analysis. See

Jordan, 370 F.3d at 878-80; Bendixen, 185 F.3d at 944. In the

wake of Abatie, therefore, the traditional application of

administrative discretionary review that our court still applies

in cases where no conflict exists does not apply to the review

of a decision by an inherently conflicted plan administrator.

MONTOUR v. HARTFORD LIFE & ACCIDENT 15381
See, e.g., Sznewajs, 572 F.3d at 734-36 (holding that “[u]nder

the deferential standard which courts must use to review the

administrator’s interpretation in the absence of any evidence

of conflict of interest,” the “plan administrator’s decision to

deny benefits must be upheld under the abuse of discretion

standard if it is based upon a reasonable interpretation of the

plan’s terms and if it was made in good faith” (internal quotation marks omitted and emphasis added)). 

For this reason, the district court’s reliance in this case on

Boyd, another decision in which there was apparently no evidence of a conflict of interest, was incorrect. See 410 F.3d at

1178-79. The district court acknowledged there were “signs

of bias in Hartford’s determination” but, applying Boyd,

deemed itself capable of reversing Hartford’s decision as an

abuse of discretion “only . . . if it [found] clear error in Hartford’s determination” that Montour failed to provide sufficient evidence to demonstrate his disability. (Emphasis

added.) While the district court found that Hartford’s conflict

of interest tainted much of the administrative decisionmaking

process, its “analysis of the plan administrator’s basis for terminating benefits does not include any discussion of the role

that . . . conflict of interest may have played in [Hartford]’s

decision nor appear to give that conflict any weight.” MetLife

I, 461 F.3d at 666. Likewise, the court acknowledged the dissonance between the SSA’s disability determination and Hartford’s contrary conclusion, but it does not appear to have

given this factor adequate consideration or weighed it against

other factors. Instead, the court relied on Boyd, a case involving no conflict and thus a less complex application of the

abuse of discretion standard, to conclude that no abuse of discretion occurred because the record contained some medical

evidence supporting Hartford’s decision to deny benefits. In

fact, the language of the district court’s decision suggests that

because of that evidence, the court felt itself obliged to affirm,

irrespective of any taint. After Abatie, this is incorrect.

15382 MONTOUR v. HARTFORD LIFE & ACCIDENT
[6] As the district court’s decision did not appropriately

balance the pertinent factors, and in particular the conflict factor, we proceed to do so here. Judicial review of an ERISA

plan administrator’s decision on the merits is limited to the

administrative record,4 so “we are in the same position as the

district court . . . .” See Moapa Band of Paiute Indians v. U.S.

Dep’t of Interior, 747 F.2d 563, 565 (9th Cir. 1984); see also,

e.g., Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 499 F.3d 1108, 1114-

15 (9th Cir. 2007) (reaching the merits in a case requiring

administrative record review because the court of appeals

faced the same task as the district court did). Therefore, while

we accept the district court’s factual findings, we apply the

standard of review de novo. See Ramstad v. Hodel, 756 F.2d

1379, 1382 (9th Cir. 1985).

III. The Merits

[7] We begin with the district court’s comprehensive

description of the “signs of bias” exhibited by Hartford

throughout its decisionmaking process:

Hartford was both the plan administrator and funder

of the Plan, and evidence of this conflict of interest

appears throughout the record. For example, in its

letters to Plaintiff, Hartford overstates and overrelies on surveillance of Plaintiff. Plaintiff was

observed over forty daylight hours on four days in

November and December 2005. During this time, he

was observed making two twenty minute trips to

pick up or drop off his grandchildren from school

and one trip of about two and a half hours conducting errands at various stores. He was also observed

to be away from his home on two occasions for

4

In the ERISA context, the “administrative record” consists of “the

papers the insurer had when it denied the claim.” See Kearney, 175 F.3d

at 1086. 

MONTOUR v. HARTFORD LIFE & ACCIDENT 15383
about an hour and forty minutes. During this time, he

was observed bending once at the waist and picking

up a small bag of medication.

This observed activity was brief and consistent

with Plaintiff ’s self-reported limitations. Plaintiff

admitted that he was able to drive for up to thirty

minutes, could walk short distances, and could lift

objects lighter than five pounds. Yet Hartford

claimed that Plaintiff ’s “self-reported limitations

were not consistent with his observed activities.”

Hartford strung together a laundry list of discrete

activities observed over the course of four days, suggesting that Plaintiff was capable of sustaining those

activities throughout the day, as would be required in

a sedentary occupation. However, that Plaintiff could

perform sedentary activities in bursts spread out over

four days does not indicate that he [ ]is capable of

sustaining activity in a full-time occupation.

Furthermore, despite its own internal observation

that Plaintiff walked “in a slightly stiff and slow

manner” and entered his car in “a somewhat slow

and deliberate manner”, Hartford indicates that

Plaintiff “did not show any limitation in his movement and demonstrated no sign of physical distress.”

This statement is also inconsistent with Hartford’s

report on the in-home interview, which noted that

Plaintiff showed signs of pain and discomfort, moaning the majority of times that he stood or twisted.

Hartford’s attempts to obtain information from

Plaintiff ’s physicians were marred by this overstatement of the surveillance findings, as well as apparent

advocacy for the position that Plaintiff was not disabled. In the letter sent to Drs. Park and Kengla,

Hartford again strung together discrete activities

observed in short bursts over several days, stated that

15384 MONTOUR v. HARTFORD LIFE & ACCIDENT
he was seen “walking at a brisk pace,” and noted that

his activities were “performed without apparent difficulty, hesitation, or the use of assistive devices.”

Instead of noting the observations of pain seen during Plaintiff ’s in-home interview, the letter stated

that Plaintiff “displayed minimal physical or mental

limitation” while participating in the interview.

In response to this letter, Dr. Park, who saw Plaintiff twice a year and was not treating him for his

back condition, stated that he either agreed or found

no contraindication to the sedentary work capacity

suggested by Hartford. Dr. Kengla, who saw Plaintiff once a month for the conditions that rendered

him disabled, stated that Plaintiff remained disabled.

Dr. Park was apparently less familiar with Plaintiff ’s condition and thus more apt to be swayed by

Hartford’s slanted presentation of the facts. Nonetheless, Hartford found the disagreement between Dr.

Park and Dr. Kengla to be significant, and sent

Plaintiff ’s file to Dr. Brown for independent review.

Although he based his opinion on a number of

factors, Dr. Brown relied on both the surveillance

and the conflict of opinion between Drs. Park and

Kengla in reaching the conclusion that Plaintiff was

able to return to work. In conducting a further review

of Plaintiff ’s medical records after Plaintiff

appealed the denial of benefits, Dr. Sukhov again

overemphasized the surveillance, stating that the

“video clearly shows the claimant performing activities above those required for a sedentary job.” As

noted above, this was clearly not the case.

Thus, there is a common theme, both in Hartford’s

communications with Plaintiff and in the assessments of those professionals Hartford hired to evaluate Plaintiff ’s condition, of presenting evidence of

MONTOUR v. HARTFORD LIFE & ACCIDENT 15385
capability in the best possible light, while failing to

subject evidence of capability to the same skepticism

and rigorous analysis applied to evidence of disability.

(Alterations and internal citations omitted). In other words,

Hartford’s bias infiltrated the entire administrative decisionmaking process, which leads us to accord significant weight

to the conflict.

[8] Another factor is Hartford’s failure to present extrinsic

evidence of any effort on its part to “assure accurate claims

assessment[,]” such as utilizing procedures to help ensure a

neutral review process. See MetLife II, 128 S. Ct. at 2351. To

the contrary, in fact, Hartford’s nurse case manager took an

advocacy position in her letters to Montour’s physicians soliciting their agreement with her disability conclusion. While

Hartford was not required to present evidence demonstrating

its efforts to achieve claims administration neutrality, the

Supreme Court’s decision in MetLife II placed it on notice as

to the potential significance of such evidence in defense of a

suit by a claimant challenging an adverse benefits determination. See id. at 2351; cf. id. at 2356 (Kennedy, J., concurring

in part and dissenting in part). On the other hand, Montour

also did not submit any extrinsic evidence of bias, such as statistics regarding Hartford’s rate of claims denials or how frequently it contracts with the file reviewers it employed in this

case. See id. at 2351; Abatie, 458 F.3d at 968-69; cf. Nolan,

551 F.3d at 1152 & n.3.

[9] Another factor is Hartford’s decision to conduct a “pure

paper” review in this case, that is, to hire doctors to review

Montour’s files rather than to conduct an in-person medical

evaluation of him. While the Plan does not require a physical

exam by a non-treating physician, in this case that choice

“raise[s] questions about the thoroughness and accuracy of the

benefits determination[,]” Bennett v. Kemper Nat’l Servs.,

Inc., 514 F.3d 547, 554 (6th Cir. 2008) (quotation marks

15386 MONTOUR v. HARTFORD LIFE & ACCIDENT
omitted), as it is not clear the Plan presented Dr. Brown and

Dr. Sukhov “with all of the relevant evidence.” MetLife II,

128 S. Ct. at 2352. Specifically, neither of Hartford’s professional experts mentioned the SSA’s contrary conclusion, “not

even to discount or disagree with it, which indicates that

[they] may not even have been aware of it.” See MetLife I,

461 F.3d at 669 (internal quotation marks and alterations

omitted).

In its decision to terminate Montour’s benefits, Hartford

relied significantly on the conclusions reached by Dr. Brown

and Dr. Sukhov. Dr. Brown, who conducted the first file

review, diagnosed Montour with a “mild to moderate” back

condition that he felt should not cause Montour as much pain

as he was reportedly suffering. Likewise, the second file

reviewer, Dr. Sukhov, based his conclusion of non-disability

in part on the lack of objective medical data to support Montour’s alleged pain levels, in addition to the lack of a selfreported pain scale or some form of quantification of the

impact of his pain on his functional abilities. It would probably have been unreasonable for Hartford to require Montour

to produce objective proof of his pain level, per Dr. Sukhov,

or to reject his subjective claims of “excess pain” based solely

on Dr. Brown’s observation. See Smolen v. Chater, 80 F.3d

1273, 1281-82 (9th Cir. 1996); Fair v. Bowen, 885 F.2d 597,

601-03 (9th Cir. 1989); see also Saffon, 522 F.3d at 872-73

& n.3. However, Dr. Brown and Dr. Sukhov also observed

that: (1) Montour’s pharmacy records indicate he was using

limited and relatively mild pain medication; and (2) his medical records with Dr. Kengla suggest that he had not recently

engaged in any pain treatment programs. These observations

probably constitute sufficient “objective” evidence to support

their conclusion that Montour’s pain does not rise to the level

of disabling pain. See Orn v. Astrue, 495 F.3d 625, 637-38

(9th Cir. 2007); Fair, 885 F.2d at 602-03.

On the other hand, Dr. Sukhov also fixated on the lack of

progression (i.e., lack of further degeneration) in Montour’s

MONTOUR v. HARTFORD LIFE & ACCIDENT 15387
back condition, as evidenced by X-rays and MRIs taken in

June 2004 and May 2006, and Hartford noted this in its decision on appeal. It is not clear “why further degeneration is

necessary to sustain a finding that [Montour] is disabled.” Saffon, 522 F.3d at 871. Given that Hartford found Montour disabled in 2004 and paid him benefits for over two years, “[i]n

order to find [him] no longer disabled, one would expect the

MRIs to show an improvement, not a lack of degeneration.”

Id.

[10] One final factor is Hartford’s failure to grapple with

the SSA’s contrary disability determination. The Plan requires

claimants to apply for social security disability benefits from

the SSA and, if denied, to exhaust all possible appeals. Hartford emphasized this requirement to Montour in its initial

award letter and then again in a separate letter the following

month. In March 2004, the SSA concluded that Montour was

disabled and awarded him disability benefits retroactively to

January 2004. Hartford benefitted from this award significantly, as it received a dollar-for-dollar financial offset, nearly

halving its liability. As of April 2005 and December 2006, the

SSA considered Montour’s disability to be “continuing.” In

August 2006, Hartford nevertheless concluded that Montour

was no longer disabled. Although Montour had immediately

forwarded the SSA’s April 2005 notice of continuing disability to Hartford, the plan administrator made no mention of the

SSA’s contrary determination in its initial termination decision. In its decision denying Montour’s appeal, Hartford

acknowledged the SSA’s decision but did not articulate why

the SSA might have reached a different conclusion. See

MetLife I, 461 F.3d at 671 n.3 (noting that there is a distinction between mentioning a contrary determination and discussing it).

[11] While ERISA plan administrators are not bound by the

SSA’s determination, complete disregard for a contrary conclusion without so much as an explanation raises questions

about whether an adverse benefits determination was “the

15388 MONTOUR v. HARTFORD LIFE & ACCIDENT
product of a principled and deliberative reasoning process.”

See MetLife I, 461 F.3d at 674; see also MetLife II, 128 S. Ct.

at 2352; cf. id. at 2361 (Scalia, J., dissenting). In fact, not distinguishing the SSA’s contrary conclusion may indicate a failure to consider relevant evidence. See MetLife II, 128 S. Ct.

at 2355 (Roberts, C.J., concurring in part and concurring in

the judgment). 

Unlike the SSA, Hartford was not bound by the treating

physician rule, which accords “special weight” to the opinions

of a claimant’s treating physician. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 831, 834 (2003)

(holding that while ERISA administrators may not arbitrarily

ignore a treating physician’s opinion, that opinion also is not

entitled to any “special deference”). However, this distinction

alone does not provide a basis for disregarding the SSA’s

determination altogether, because in some cases, such as this

one, the SSA deploys a more stringent standard for determining disability than does the governing ERISA plan. See, e.g.,

MetLife I, 461 F.3d at 668 & n.1; Calvert v. Firstar Fin., Inc.,

409 F.3d 286, 294 n.4 (6th Cir. 2005). Specifically, after

twenty-four months the Plan defines “disability” as being prevented by, inter alia, accidental bodily injury or sickness from

performing an essential duty of any occupation for which the

claimant is “qualified by education, training or experience”

that pays at least as much as the claimant would otherwise be

eligible for if receiving benefits under the Plan, which consists of a formula based in part on the claimant’s past earnings. The SSA’s standard is more strict, defining “disability”

as the “inability to engage in any substantial gainful activity

by reason of any medically determinable physical . . . impairment” that is of “such severity that [the claimant] . . . cannot,

considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in

the national economy, regardless of whether such work exists

in the immediate area in which he lives.” 42 U.S.C.

§ 423(d)(1)(A), (2)(A). In other words, unlike the Plan, the

SSA’s standard does not take into account a claimant’s past

MONTOUR v. HARTFORD LIFE & ACCIDENT 15389
earnings or location. Accord MetLife I, 461 F.3d at 668 n.1;

cf. DeLisle v. Sun Life Assurance Co. of Canada, 558 F.3d

440, 446 (6th Cir. 2009) (“Even though [the administrator]

did not have the opinion accompanying the notice of award,

it still was well aware of the uniform federal standard that

applies to Social Security claims.”).

Ordinarily, a proper acknowledgment of a contrary SSA

disability determination would entail comparing and contrasting not just the definitions employed but also the medical evidence upon which the decisionmakers relied. See, e.g.,

MetLife I, 461 F.3d at 668. Unfortunately, the administrative

record in this case only contains the SSA’s award letters without the opinion by the SSA administrative law judge (ALJ) or

the SSA administrative record on which that decision was

based. This omission makes the process of comparing and

contrasting the two opposing disability determinations more

difficult. 

Although the Plan places the burden on Montour to submit

“written proof” of his disability, that is, the pertinent documents and information necessary to facilitate a disability

determination, regulations promulgated by the Secretary of

Labor authorize, if not require, plan administrators working

with an apparently deficient administrative record to inform

claimants of the deficiency and to provide them with an

opportunity to resolve the problem by furnishing the missing

information. See 29 C.F.R. § 2560.503-1(f)(3)-(4), (g)(1)(iii);

see also Saffon, 522 F.3d at 870 (“In resolving [Montour]’s

claim for benefits, [Hartford] was required to give [him] ‘a

description of any additional material or information’ that was

‘necessary’ for [him] to ‘perfect the claim[.]’ . . .” (quoting 29

C.F.R. § 2560.503-1(g)(1)(iii) (alterations omitted))). We

have also construed this regulation to require a plan administrator denying benefits in the first instance to notify the claimant not just of the opportunity for internal agency review of

that decision but also of what additional information would be

15390 MONTOUR v. HARTFORD LIFE & ACCIDENT
necessary “to perfect the claim[.]” Chuck v. Hewlett Packard

Co., 455 F.3d 1026, 1032 (9th Cir. 2006). 

Although the record reflects that Montour kept Hartford

regularly apprised of his continuing disability status with the

SSA, Hartford’s initial decision in this case made no mention

of the contrary SSA disability determination and did not

advise Montour that further documentation, such as the ALJ’s

decision or the underlying administrative record, would facilitate Hartford’s review. At the appeals stage, Hartford’s sole

acknowledgment was that the SSA’s contrary determination

was “a consideration and part of the totality of the evidence[,]” but it then continued with the statement that its decision “must be based on the weight of the evidence in this file

. . . .” 

To the extent this latter statement implies that the missing

ALJ opinion and underlying record precluded Hartford from

attributing much weight to the SSA’s contrary determination,

this information came too late. See Chuck, 455 F.3d at 1032;

Saffon, 522 F.3d at 871 (“Insofar as [Hartford] believed that”

additional documentation establishing the reasoning and evidence underlying the SSA’s disability determination “was

necessary for it to evaluate [Montour]’s claim,” it should have

said so “at a time when [Montour] had a fair chance to present

evidence on this point.”); see also 29 C.F.R. § 2560.503-

1(h)(2)(iv) (requiring plan administrators to consider documentation submitted by a claimant at the appeal stage). Montour does not challenge the reasonableness of Hartford’s

claims procedures on appeal. See 29 C.F.R. § 2560.503-

1(h)(2), (l). Nevertheless, we explained in Abatie that “an

administrator that adds, in its final decision, a new reason for

denial, a maneuver that has the effect of insulating the rationale from review, contravenes the purpose of ERISA[,]” and

“[t]his procedural violation must be weighed . . . in deciding

whether [the administrator] abused its discretion.” 458 F.3d at

974. 

MONTOUR v. HARTFORD LIFE & ACCIDENT 15391
Ultimately, Hartford’s failure to explain why it reached a

different conclusion than the SSA is yet another factor to consider in reviewing the administrator’s decision for abuse of

discretion, particularly where, as here, a plan administrator

operating with a conflict of interest requires a claimant to

apply and then benefits financially from the SSA’s disability

finding. See MetLife II, 128 S. Ct. at 2352 (“This course of

events [is] not only an important factor in its own right

(because it suggest[s] procedural unreasonableness), but also

would . . . justif[y] the court in giving more weight to the conflict (because [Hartford]’s seemingly inconsistent positions

were both financially advantageous).”).

[12] Weighing all of the foregoing factors together, we conclude that Hartford’s conflict of interest improperly motivated

its decision to terminate Montour’s benefits. This constituted

an abuse of its administrative discretion.

IV. Conclusion

[13] We reverse the district court’s summary judgment in

favor of Hartford and remand to the district court to enter

summary judgment in favor of Montour and to order the reinstatement of long-term disability benefits in accordance with

this opinion and the terms of the Plan. See Pannebecker, 542

F.3d at 1221 (“[W]hether 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.”).

REVERSED and REMANDED.

15392 MONTOUR v. HARTFORD LIFE & ACCIDENT