United States v. 2020-09-21 | 19-16554 | RUSSELL HOWARD V. BCBS-AZ | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RUSSELL KEITH HOWARD,
Plaintiff-Appellant,
v.
BLUE CROSS BLUE SHIELD OF
ARIZONA; SUNSTATE EQUIPMENT
CO. LLC EMPLOYEE BENEFIT PLAN,
Defendants-Appellees.
No. 19-16554
D.C. No. 2:16-cv-03769-JJT
MEMORANDUM
*
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Submitted September 17, 2020
**
San Francisco, California
Before: SCHROEDER, W. FLETCHER, and HUNSAKER, Circuit Judges.
Plaintiff-Appellant Russell Howard appeals the district court’s order
granting summary judgment to Defendant-Appellee Blue Cross Blue Shield of
FILED
SEP 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
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).

Arizona (Blue Cross). Howard challenges Blue Cross’s denial of his claim for
reimbursement of medical treatment under the Employee Retirement Income
Security Act (ERISA). See 29 U.S.C. § 1132(a)(1)(B). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
Blue Cross denied Howard’s pre-treatment authorization requests. Blue
Cross concluded that Howard’s preferred course of treatment promised no better
outcomes than established alternatives. Blue Cross informed Howard that, under
applicable guidelines, it was not medically necessary. After Howard nevertheless
obtained this treatment, Blue Cross again denied coverage, citing the relevant
terms of the Sunstate insurance plan (the Plan).
The Plan language provides that Blue Cross has discretion to make coverage
determinations, so we will review those determinations for abuse of discretion
unless there are major procedural irregularities or unless Blue Cross failed to
exercise its discretion. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955,
963, 971–72 (9th Cir. 2006) (en banc). There are no procedural irregularities in
this case that warrant de novo review. See, e.g., id. at 971 (quoting Gatti v.
Reliance Standard Life Ins. Co., 415 F.3d 978, 985 (9th Cir. 2005)) (explaining
that procedural violations will change the standard of review only where the
“violations are so flagrant as to alter the substantive relationship between the
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employer and employee, thereby causing the beneficiary substantive harm”). Blue
Cross provided an explanation for each of its decisions and did not violate any
procedural requirements of the Plan in doing so. Blue Cross also did not fail to
exercise its discretion. See, e.g., Jebian v. Hewlett-Packard Co. Employee Benefits
Org. Income Prot. Plan, 349 F.3d 1098, 1106 (9th Cir. 2003) (holding that an
administrator failed to exercise its discretion where it did not make a benefits
determination within the 60 days as required by the terms of the Plan). Blue Cross
provided Howard with a timely explanation, in writing, to support its
determinations. We therefore review for abuse of discretion.
A plan administrator abuses its discretion under ERISA where its decision is
“(1) illogical, (2) implausible, or (3) without support in inferences that may be
drawn from facts in the record.” Salomaa v. Honda Long Term Disability Plan,
642 F.3d 666, 676 (9th Cir. 2011)(citation omitted); see also Harlick v. Blue Shield
of Cal., 686 F.3d 699, 720 (9th Cir. 2012) (explaining that administrators generally
have “discretion to determine whether [a] treatment was medically necessary
during the administrative review process” of a claim). Blue Cross did not violate
the terms of the Plan by denying Howard’s requests for coverage. In fact, the Plan
specifically provided that Howard’s treatment for his medical condition was not
considered medically necessary. Blue Cross also provided the required
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explanation under ERISA; each time Howard requested a coverage determination,
Blue Cross informed him that the treatment was not medically necessary and
would not be covered. See Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461,
1463 (9th Cir. 1997).
Blue Cross reasonably relied upon medical studies that showed no net
benefit over other courses of treatment. We cannot conclude that this finding,
supported by medical evidence in the record, was “clearly erroneous.” See Boyd v.
Bert Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1178 (9th Cir.
2005). There was no conflict of interest in this case that would alter our analysis.
Blue Cross was liable only for claims above 200,000 dollars, and Howard’s claims
did not approach that amount. Blue Cross therefore did not abuse its discretion in
denying Howard coverage under the Plan.
Howard’s last argument is that the district court abused its discretion by
denying his requests for additional discovery. See Burke v. Pitney Bowes
Long–Term Disability Plan, 544 F.3d 1016, 1028 n.15 (9th Cir. 2008). The
additional materials Howard sought were unlikely to be relevant to his case
because they involved different medical insurance plans and different insured
individuals. Moreover, producing all 74 determinations would have been
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burdensome for Blue Cross. Accordingly, the district court did not abuse its
discretion in denying Howard’s requests for additional discovery.
AFFIRMED.
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