Merklin v. Liberty Life Assurance Co.

136 F. App'x 29

Opinions

MEMORANDUM

*

Mary A. Merklin and Liberty Life Assurance Company of Boston filed cross-motions for summary judgment in her action for disability benefits, and she appeals the judgment in Liberty’s favor. We affirm.

I

We agree with the district court that review is for abuse of discretion because Merklin did not show material, probative evidence beyond the fact of mere apparent conflict of interest tending to show that self-interest caused a breach of Liberty’s fiduciary obligations. Friedrich v. Intel Corp., 181 F.3d 1105, 1109 (9th Cir.1999); Atwood v. Newmont Gold Co., 45 F.3d 1317, 1322 (9th Cir.1995). While Liberty was uncertain about Merklin’s diagnosis for a brief period of time, it continuously relied on the policy’s definition of disability and indicated to Merklin that she could only receive benefits for mental illness for 24 months. Once Liberty concluded that her primary disabling condition was psychological and that there was no objective medical evidence that she was unable physically to perform sedentary work as the policy required, it so informed Merklin.. This was months before her benefits were terminated. It was not “manipulative” for Liberty to have Merklin’s file reviewed independently by the same kind of specialists whom she was consulting in order to determine whether there was objective medical evidence of inability to do sedentary work. Finally, no basis appears in Liberty’s final denial letter of June 14, 2000, to find deception or inconsistency. Dr. Massie reported that Merklin was unable to work from a psychiatric standpoint; the omitted reference to episodes of syncope states that they support her inability to be able to work but does not suggest that the episodes in themselves make Merklin unable to work. Dr. Forbes’s report, which Liberty furnished to Merklin when she requested it, reflects Dr. Ken-nett’s view of Merklin’s ability to do light work limited to four hours per day; Dr. Kennett’s view was already known to Merklin because Dr. Kennett was her treating physician.

II

Liberty had discretion to find that Merklin did not meet the policy’s definition of “disabled” given the reports of Drs. Webber, Isenberg, Gaziano, Nettrour, and Massie. None found a basis for restricting Merklin from sedentary work based on physical medical conditions. There were conflicting indications, for example, Dr. Kennett believed that Merklin was unable to work and Dr. Monka believed that she shouldn’t work. However, Merklin worked through her physical ailments until she became disabled on account of psychological issues. Drs. Isenberg, Gaziano, and Webber indicated that she was capable of performing sedentary work. As there was substantial evidence supporting Liberty’s determination, we cannot say that its determination was based on clearly erroneous findings of fact. See Atwood, 45 F.3d at 1323-24.

III

Whether or not the district court relied too heavily on Dr. Forbes’s report, Liberty’s determination that Merklin could perform sedentary work full time is supported by the reports of Drs. Webber, Sanders, and Nettrour, as well as the absence of any physical restriction identified by others.

rv

Liberty sought documentation from Merklin’s treating physicians, considered what they furnished, and evaluated whether their opinions were supported by objective medical data. It was not obliged to accord special weight to their opinions and was entitled to credit reliable evidence adduced by other physicians. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003).

V

To the extent that Merklin argues that Liberty based its decision on the unsupported theory that her physical problems had not prevented her from working until the onset of depression, we disagree that support is lacking. Dr. Monka’s original correspondence so indicated. Nor do we agree that Liberty failed to consider all of Merklin’s ailments together. It reviewed her claims on at least five occasions, and explained why, based on medical findings, Merklin was unable to work from a psychiatric standpoint but that her physical limitations were not severe enough to be disabling.¹

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Merklin’s argument that Liberty could not require objective medical evidence of her ailments was not raised in her opening brief and is therefore waived. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.1999).