Rosalie A. Moos-Holling v. Bayer Corporation Disability Plan

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSALIE A. MOOS-HOLLING,
Plaintiff - Appellant,
v.
BAYER CORPORATION DISABILITY
PLAN,
Defendant - Appellee.
No. 09-15366
D.C. No. 3:07-cv-06240-SI
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted February 10, 2010
San Francisco, California
Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.
Rosalie Moos-Holling appeals from the district court’s grant of summary
judgment to Bayer Corporation Disability Plan (“BCDP”) following the
termination of her long-term disability (“LTD”) benefits. Following an injury at
home, Moos-Holling was awarded LTD benefits effective March 1, 2003. Those
FILED
FEB 18 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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benefits terminated November 30, 2005 for failure to provide medical
documentation relating to her continuing disability. The district court upheld the
termination of benefits, and we affirm.
The grant of summary judgment and the district court’s “choice and
application of the standard of review to decisions by ERISA fiduciaries” are
reviewed de novo. Nolan v. Heald Coll., 551 F.3d 1148, 1153 (9th Cir. 2009)
(internal quotation omitted). A denial of benefits is reviewed de novo “unless the
benefit plan gives the administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms of the plan.” Firestone
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Such a grant of discretion
was present in this case. Therefore, the decision terminating benefits is reviewed
for an abuse of discretion. The structural conflict of interest created by Bayer
Corporation both funding the Trust to pay benefits and making the decision to
award or withhold benefits is a factor to be considered in the abuse of discretion
review. Metro. Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2348-51 (2008). The
district court properly reviewed the termination of benefits for an abuse of
discretion, applying a heavy dose of skepticism. See Abatie v. Alta Health & Life
Ins. Co., 458 F.3d 955, 968 (9th Cir. 2006) (en banc).

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The district court was not required to conduct a bench trial on the conflict of
interest created by the Trust, because the court considered all admissible evidence
submitted in the light most favorable to the non-moving party, Moos-Holling.
Nolan, 551 F.3d at 1155. The district court properly refused to consider the sworn
depositions offered by Moos-Holling because they did not satisfy the requirements
for judicial notice under Federal Rule of Evidence 201, and because she “fail[ed] to
establish any ground for the admissibility of these documents.” See United States
v. Alonso, 48 F.3d 1536, 1544 (9th Cir. 1995); Fed. R. App. P. 28(a)).
The district court did not abuse its discretion by denying Moos-Holling’s
request for a continuance pursuant to Federal Rule of Civil Procedure 56(f). She
failed to identify specific facts that would be revealed through further discovery, or
to explain how the information she sought would preclude summary judgment.
Despite several requests for documentation, Moos-Holling submitted no
records showing treatment by a medical provider after August of 2004. The last
report from a doctor expressing an opinion as to her disability was dated in
December, 2003. Therefore, in light of the evidence in the administrative record,
BCDP did not abuse its discretion by terminating her LTD benefits, and the district
court did not err by granting summary judgment.
AFFIRMED

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