FILED

NOT FOR PUBLICATION

DEC 10 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL JOHNSON, No. 17-55501

Plaintiff-Appellant, D.C. No. 5:15-cv-01940-MWF-DTB v.

AETNA LIFE INSURANCE COMPANY; MEMORANDUM*

et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted December 3, 2018** Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and BASTIAN,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stanley Allen Bastian, United States District Judge for the Eastern District of Washington, sitting by designation. Plaintiff-Appellant Daniel Johnson appeals from the district court’s order

affirming Aetna Life Insurance Company (“Aetna”)’s denial of his short-term

disability benefits application. We have jurisdiction under 28 U.S.C. § 1291.

We review a 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). When an ERISA plan gives

the plan administrator discretion to interpret the terms of the plan, district courts

review decisions to deny disability benefits applications for an abuse of discretion.

Id. at 963. Here, the parties agree that FedEx’s self-funded employee welfare

benefit plan (the “Plan”) administered by Aetna confers discretion to Aetna to

interpret its terms. Thus, the district court correctly applied the abuse of discretion

standard.

In the ERISA context, an ERISA administrator abuses its discretion only if it

“(1) renders a decision without explanation, (2) construes provisions of the plan in a

way that conflicts with the plain language of the plan, or (3) relies on clearly

erroneous findings of fact.” Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Plan,

410 F.3d 1173, 1178 (9th Cir. 2005). Here, Johnson argues only that Aetna abused

its discretion because it ignored his doctors’ recommendations that he cannot or

should not lift more than 25 pounds, which most closely aligns to an argument that

2 Aetna relied on clearly erroneous findings of fact when it denied Johnson disability

benefits.

Johnson argues that “Aetna never explained how Johnson could lift 75

pounds and drive a FedEx truck all day, every day,” but this ignores the standard

he must meet to qualify for disability benefits. To qualify for disability benefits

under the Plan, Johnson’s disability must be “substantiated by significant objective

findings which are defined as signs which are noted on a test or medical exam and

which are considered significant anatomical, physiological or psychological

abnormalities which can be observed apart from the individual’s symptoms.”

Johnson’s doctors opined that he cannot or should not lift 75 pounds, which

is an essential function of his job as a courier. Even so, these recommendations are

not significant objective findings as defined above; they are opinions based in part

on Johnson’s relation of pain complaints. The only objective finding that

Johnson’s doctors made that would support his claim for disability benefits is that

his MRI revealed he had a “lateral disc protrusion at L2-3 on the left and

degenerative changes at L4-5 and L5-S1” but no herniation. Although Dr.

Steinmann observed he suffered moderate discomfort when transferring from

sitting to standing and multiple doctors noted he had lumbosacral tenderness in his

back, these are subjective findings because they require input from the patient’s

3 complaints of pain. Further, although Johnson repeatedly complained of back

pain, his subjective complaints cannot be used to prove he has an occupational

disability.

Apart from this evidence, Johnson’s doctors found that he was not in acute

distress; had satisfactory motor functions for all of his lower extremities; had

normal reflexes; could walk independently without assistance and had a normal

heel to toe gait; had normal coronal and sagittal plane alignments; and there was no

evidence of spinal orthosis, sensory defects, or neurological deficits.

Based on this evidence, Aetna’s physicians reasonably concluded that “there

was a lack of significant updated quantifiable physical examination findings from

any of the claimant’s treating providers to correlate with the claimant’s subjective

pain complaints to support a functional impairment from the claimant’s own

occupation.” Aetna did not rely on clearly erroneous findings of fact when it

concluded that Johnson was not entitled to disability benefits past November 10,

2014. Therefore, the district court properly found that Aetna did not abuse its

discretion in denying Johnson disability benefits after November 10, 2014.

AFFIRMED.

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