NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 27 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

YOLANDA RIOS, No. 21-55020

Plaintiff-Appellee, D.C. No. 2:19-cv-04100-DOC-SK v.

UNUM LIFE INSURANCE COMPANY MEMORANDUM*

OF AMERICA; PROVIDENT LIFE AND

ACCIDENT INSURANCE COMPANY;

ARNOLD AND PORTER KAYE

SCHOLER, L.L.P WELFARE BENEFIT

PLAN; INDIVIDUAL DISABILITY

INCOME POLICY NO. 6754470,

Defendants-Appellants.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted November 18, 2021 Pasadena, California

Before: BERZON and RAWLINSON, Circuit Judges, and KENNELLY,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. Plaintiff Yolanda Rios (“Rios”) submitted claims for benefits under two

ERISA-governed disability insurance policies issued by defendants Unum Life

Insurance Company and Provident Life and Accident Insurance Company

(collectively, “Unum”). Both policies defined “disability,” for the first 24 months

of payments, as an inability to perform the material and substantial duties of one’s

“own occupation.” After the 24 months, the definition of “disability” changed to

whether the claimant could perform the material and substantial duties of “any

occupation” for which the claimant would be qualified. Unum initially granted

Rios “own occupation” benefits, but later terminated her benefits on the ground

that she could perform her occupation as a User Support Specialist. It never

addressed her request for “any occupation” benefits. Applying de novo review, the

district court concluded that Rios was entitled to both “own occupation” and “any

occupation” benefits. We affirm in part, reverse in part, and remand for further

proceedings.

1. The district court did not clearly err in concluding that Rios is entitled to

“own occupation” benefits. Ample evidence—including credible subjective

reports of pain, lumbar x-rays, spinal and knee MRIs, diagnostic examinations, and

a report provided by Rios’s specialist treating physician—indicated that Rios

cannot sit for over four hours in an eight-hour workday. That limitation prevents

Rios from performing the material and substantial duties of a User Support

2 Specialist, entitling her to “own occupation” benefits under both of Unum’s

insurance policies. See Armani v. Nw. Mut. Life Ins. Co., 840 F.3d 1159, 1163–64

(9th Cir. 2016).

2. The district court clearly erred in concluding, on the present record and

without further proceedings, that Rios is entitled to “any occupation” benefits.

Aside from a fully favorable Social Security Administration (“SSA”) decision

issued on July 17, 2020, no record materials submitted to either Unum or the

district court spoke to Rios’s functionality on or after July 11, 2020, the date of the

transition from “own occupation” to “any occupation” benefits. Although Rios’s

condition is progressive and may not improve, there are viable treatment options

for her condition that could result in improved functionality—including steroid

injections and back surgery—that she had not yet undertaken when the record

closed. Although Rios was not required by the insurance policies to undergo such

treatments, the record did not disclose whether, on or before the transition date, she

nevertheless elected to undergo such treatments and, if so, whether her

functionality improved. That factor distinguishes this case from one in which the

permanence of the disability is self-evident.

Finally, an SSA Administrative Law Judge (“ALJ”) concluded six days after

the transition date that Rios was disabled because “no jobs . . . exist in significant

numbers in the national economy that” Rios could perform. The SSA decision

3 does not specifically address Rios’s functionality as of the transition date, as

opposed to earlier, and was based only on pre-transition date evidence. SSA

decisions are entitled to some degree of deference by ERISA plan administrators

such that failure to distinguish a contrary SSA decision may qualify as a “failure to

consider relevant evidence.” Montour v. Hartford Life & Accident Ins. Co.,

588 F.3d 623, 635 (9th Cir. 2009). Here, although the ALJ’s projection that Rios

was unable as of the transition date to perform any job that exists in significant

numbers in the national economy is entitled to consideration, the SSA decision,

given its limited evidentiary foundation, cannot fully cure the lack of evidentiary

support for the district court’s “any occupation” determination.

In light of the foregoing analysis, we direct the district court, on remand, to

remand the case to Unum to allow it to determine Rios’s entitlement to “any

occupation” benefits in the first instance. Costs on appeal are awarded to Rios.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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