Decovich v. Anthem Life Insurance Ex Rel. Venetian Insurance Package Long-Term Disability Plan

dissenting in part:

I respectfully dissent from part one of the disposition. Although the district court uses the word “reasonable” when analyzing CDS’s denial of Decovich’s claim, it expressly states in the preceding lines of the order that it is engaging in de novo review and rejects the “arbitrary and capricious” standard. The district court then proceeds to engage in a thorough de novo review, concluding that Decovich failed to meet her burden of showing a factual dispute as to whether she established eligibility for disability benefits .under the policy.

Moreover, such a conclusion was appropriate. In light of the overwhelming evidence to support the finding that Decovich failed to establish functional impairment— including (i) medical examinations and tests that showed no physical abnormalities, (ii) reports from Decovich’s treating specialists, including Dr. Jianu, indicating that Decovich was not functionally impaired, (iii) Dr. Tsai’s deferral of his assessment of Decovich’s work-related restrictions and limitations to Decovich’s other treatment providers, and (iv) Dr. Gendron’s observation that individuals with fibromyalgia are often encouraged to engage in physical…

MEMORANDUM *

Appellant Miae Decovich appeals the district court’s grant of summary judgment in favor of Anthem Life Insurance Company. We reverse and remand for further proceedings.

1. Under de novo review, there is a triable issue of fact as to whether Decovich was disabled under the terms of the disability policy. See Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir.1999) (en banc). Although the district court correctly articulated the standard of review, it proceeded to analyze whether the denial of Decovich’s disability claim was reasonable. Instead, it was required to “undertake an independent and thorough inspection of [the] administrator’s decision.” Silver v. Exec. Car Leasing Long-Term Disability Plan, 466 F.3d 727, 733 (9th Cir.2006).

While neither of Custom Disability Services (CDS)’s reviewing physicians opined that Decovich’s fibromyalgia was disabling, other evidence submitted by Decovich supported her disability claim. A physical evaluation submitted by Decovich’s primary care physician, Dr. Tsai, notes Deco-vich’s experience of pain is frequently severe enough to interfere with attention and concentration. It further observes she can handle only 15…

FILED

NOT FOR PUBLICATION JAN 28 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIAE DECOVICH, No. 12-16803

Plaintiff - Appellant, D.C. No. 2:11-cv-00872-JCM-

CWH

v.

ANTHEM LIFE INSURANCE MEMORANDUM*

COMPANY, as Claims Administrator on behalf of Venetian Insurance Package Long-Term Disability Plan,

Defendant - Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted December 9, 2014 San Francisco, California

Before: O’SCANNLAIN, FISHER and HURWITZ, Circuit Judges.

Appellant Miae Decovich appeals the district court’s grant of summary

judgment in favor of Anthem Life Insurance Company. We reverse and remand

for further proceedings.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. Under de novo review, there is a triable issue of fact as to whether

Decovich was disabled under the terms of the disability policy. See Kearney…