Allen Rude v. Intel Corporation Long Term Disability Benefit Plan;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLEN RUDE,
Plaintiff - Appellant,
v.
INTEL CORPORATION LONG TERM
DISABILITY BENEFIT PLAN; et al.,
Defendants - Appellees.
No. 13-15834
D.C. No. 2:11-cv-01966-FJM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge, Presiding
Argued and Submitted October 19, 2015
San Francisco, California
Before: SILVERMAN and CHRISTEN, Circuit Judges, and DUFFY,** District
Judge.
Allen Rude appeals the district court’s summary judgment in his action
under the Employee Retirement Income Security Act (“ERISA”), challenging the
FILED
NOV 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

-- 1 of 3 --

denial of his claim for long-term disability benefits under the Intel Corp. Long
Term Disability Plan. We have jurisdiction under 28 U.S.C. § 1291, and we vacate
the district court’s judgment.
We review de novo the district court’s choice and application of the standard
of review in an ERISA case. Pac. Shores Hosp. v. United Behavioral Health, 764
F.3d 1030, 1039 (9th Cir. 2014). When an ERISA plan unambiguously confers
discretion to an administrator to determine eligibility for benefits, we review a
denial of benefits for an abuse of discretion. Id. at 1040. Any procedural
irregularity or administrator’s operation under a conflict of interest are considered
as factors in determining whether there has been an abuse of discretion. Id.
Aetna abused its discretion in denying Rude’s benefits because it applied
inconsistent yardsticks when measuring what Rude’s job was and what he was
capable of performing. On the one hand, Dr. D. Kelly Agnew, Aetna’s reviewing
orthopedic surgery specialist, determined that Rude was capable of sedentary work
because he could, among other things, stand for three or four hours, and walk three
to four hours in total with position changes. However, Aetna also found that
Rude’s job most closely correlated with sedentary work as defined in the
Dictionary of Occupational Titles, which “may involve walking or standing for
2

-- 2 of 3 --

brief periods of time. Jobs are sedentary if walking and standing are required only
occasionally . . . .” DOT App. C (emphasis added).
Aetna’s characterization of Rude’s job as sedentary is also inconsistent with
statements from Rude’s supervisor, who stated that Rude’s job involved as much
as two hours of walking and one hour of standing per day, and from Rude himself,
who stated that his job required three hours of standing and one hour of walking
per day.
Accordingly, we vacate the district court’s judgment and remand for an
award of benefits. See Salomaa v. Honda Long Term Disability Plan, 642 F.3d
666, 676 (9th Cir. 2011) (holding that ERISA administrator’s decision will not be
upheld if it is illogical, implausible, or without support in inferences that could
reasonably be drawn from facts in the record). The benefits to be awarded shall be
those for the six months of long term disability remaining in Rude’s “own
occupation” period. Rude is not entitled to benefits for the subsequent “any
occupation” period because, as the analysis above illustrates, he retains the ability
to do some work. We need not, and do not, reach any other issues raised on
appeal.
VACATED and REMANDED.
3

-- 3 of 3 --