Moore

dissenting:

I respectfully dissent. As a reviewing court, we may not simply ignore the unanimous medical conclusion that Mr. Moore is no longer totally and permanently disabled because his significant impairment does *602 not prevent him from performing “sedentary” or “light” work with restrictions. I do not agree that a vocational expert, accepting the uncontroverted medical testimony that Moore is capable of performing a broad class of work, could possibly conclude that he is incapable of performing “any occupation” even on a part-time basis. The Board did not abuse its discretion by following the Plan’s plain language and adopting as final and binding the medical opinion of a physician empowered to resolve medical disputes.

The majority errs in three significant ways. First, it disregards the ERISA abuse of discretion standard. Second, it transforms the totality of the circumstances standard set forth in McKenzie v. Gen. Tel. Co. of Cal. 41 F.3d 1310, 1317 (9th Cir.1994), into a single-factor test in which vocational testimony is required regardless of whether the record shows that an admittedly significant impairment does not prevent a claimant from performing some…

MEMORANDUM ***

Former professional football player Kelvin Moore appeals from the district court’s grant of summary judgment in favor of the Bert Bell/Pete Rozelle NFL Player Retirement Plan (“Plan”). The district court granted the Plan’s motion for summary judgment, concluding that the Plan’s Retirement Board (“the Board”) did not abuse its discretion in terminating Moore’s claim for disability benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We reverse and remand.

The Plan gives the Board full discretionary authority to construe the terms of the Plan and to determine eligibility for benefits. We therefore review for abuse of discretion the Board’s decision to terminate Moore’s benefits. See Hamilton v. Wash. State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091 , 1102 (9th Cir.2006); Boyd v. BeH Bell/Pete Rozelle NFL Players Retirement Plan, 410 F.3d 1173, 1178 (9th Cir.2005).

Here, Moore’s impairment was described as “serious” or “significant” by the physicians who examined him, one of whom specifically noted that a vocational expert was needed to determine the type of employment Moore could attempt in light of his limitations. Even if this physician’s…