Alice McBurnie v. Life Insurance Company of North America, a Pennsylvania corporation

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALICE MCBURNIE,
Plaintiff-Appellant,
v.
LIFE INSURANCE COMPANY OF
NORTH AMERICA, a Pennsylvania
corporation and DOES, 1 to 10, inclusive,
Defendants-Appellees.
No. 17-55915
D.C. No.
5:16-cv-01250-JGB-KK
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Jesus J. Bernal, District Judge, Presiding
Argued and Submitted February 5, 2019
Pasadena, California
Before: WARDLAW and BEA, Circuit Judges, and DRAIN, ** District
Judge.
Plaintiff–Appellant, Alice McBurnie (“McBurnie”), appeals the
decision of the United States District Court for the Central District of
California denying her long-term disability benefits (“LTD”). McBurnie
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gershwin A. Drain, United States District Judge
for the Eastern District of Michigan, sitting by designation.
FILED
MAR 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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submitted an LTD claim to Defendant/Appellee Life Insurance Company of
North America (“LINA”) under her employee welfare benefit plan after she
suffered a lower back injury at her former place of employment. LINA
approved benefits to McBurnie under the policy’s “own occupation”
standard of disability. Two years later, the policy’s “any occupation”
standard of disability took effect. LINA denied McBurnie benefits under the
“any occupation” standard, finding that she could perform sedentary work.
McBurnie internally appealed LINA’s claim decision twice; LINA denied
her appeal on both occasions. On appeal to the federal district court, the
court ruled in favor of LINA that McBurnie was not entitled to LTD. On
appeal to this court, McBurnie claims that the district court erred in denying
her LTD. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
We review the district court’s factual findings for clear error. Withrow
v. Halsey, 655 F.3d 1032, 1035 (9th Cir. 2011). “The clear error standard is
significantly deferential” and requires the reviewing court to have a “definite
and firm conviction that a mistake has been committed” before reversal is
warranted. Fischer v. Tucson Unified Sch. Dist., 652 F.3d 1131, 1136 (9th
Cir. 2011) (quoting Cohen v. U.S. Dist. Court for N. Dist. Cal., 586 F.3d
703, 708 (9th Cir. 2009)). We may have a “definite and firm conviction” that
the district court committed reversible error only if its factual findings were

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illogical, implausible, or “without support in inferences that may be drawn
from the facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1262
(9th Cir. 2009) (en banc). Indeed, we may not reverse the district court if the
district court’s findings are plausible considering the entire record, “even if
we would have weighed the evidence differently.” Lewis v. Ayers, 681 F.3d
992, 998 (9th Cir. 2012).
First, the district court properly considered McBurnie’s subjective
complaints of severe back pain. McBurnie cites to no binding authority that
requires LINA or the district court to consider her subjective complaints of
pain. But even if such a requirement exists, here, the district court
recognized McBurnie’s subjective complaints of pain. However, despite her
subjective complaints of back pain, McBurnie’s treating physicians stated
she could perform sedentary work with restrictions. The district court did not
clearly err when it concluded that it could not “come up with its own
medical conclusions as to [McBurnie’s] limitations to supersede specific and
express findings by physicians who examined her.”
Next, the district court did not clearly err in its determination that
LINA properly conducted its Transferable Skills Analysis (“TSAs”). As part
of its TSAs, LINA must determine whether McBurnie can perform “any
occupation.” The “any occupation” standard is not demanding. McKenzie v.

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Gen. Tel. Co. of Cal., 41 F.3d 1310, 1317–18 (9th Cir. 1994). We concluded
in McKenzie that it is sufficient to show that an employee has the capacity to
perform some job for which she is qualified or can reasonably become
qualified. Id. at 1317; see also Pannebecker v. Liberty Life Assurance Co. of
Boston, 542 F.3d 1213, 1220 (9th Cir. 2008) (finding that the benefit plan
did not require the employer to specifically identify a job with a reasonably
substantial income). Here, LINA identified three jobs McBurnie could
perform or reasonably become qualified to perform. Thus, the district court
did not clearly err in determining LINA properly conducted its TSAs.
The district court did not commit clear error when it determined that
McBurnie is not disabled under the “any occupation” standard. The district
court reasonably afforded greater weight to the opinions of the physicians
who directly examined McBurnie during multiple visits over extended
periods of time, Drs. Bergey and Sofia. The court properly discounted the
opinions of the peer review doctors who did not personally examine
McBurnie, Dr. Karande and Dr. Rea.
McBurnie’s treating physicians concluded that she is able to work
with restrictions. Dr. Sofia’s December 28, 2015 report stated that McBurnie
had the residual functional capacity to participate in vocational rehabilitation
and that she could be retrained for a different job. Dr. Bergey did not state in

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any of his reports that McBurnie cannot perform a sedentary job. The
opinions of Drs. Alpern, Johnson, and Roger—which described McBurnie as
“totally disabled”—do not rebut the conclusions of Drs. Bergey and Sofia
because they failed to explain how McBurnie’s condition prevented her from
performing sedentary work. Moreover, none of McBurnie’s treating
physicians gave her sitting restrictions, a fact to which McBurnie concedes.
Lastly, LINA’s September 3, 2014 denial letter meets the
requirements that LINA engage in meaningful dialogue with McBurnie.
Engaging in meaningful dialogue requires a claims administrator to provide
the beneficiary with “[t]he specific reason or reasons for the adverse
determination.” 29 C.F.R. § 2560.503-1(g)(1)(i). The claims administrator
must provide “[a] description of any additional material or information” that
is “necessary” to “perfect the claim,” and do so “in a manner calculated to be
understood by the claimant.” 29 C.F.R. § 2560.503-1(g)(1); Saffon, 522 F.3d
at 870.
LINA issued its first denial letter to McBurnie on September 3, 2014.
The letter quoted the definition of disability under the “any occupation”
standard. It further included a section entitled “How Was the Claim Decision
Reached.” This section described what information LINA used to reach its
decision, including the February 1, 2012 report of Dr. Bergey, the February

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22, 2012 evaluation of Dr. Sofia, and a TSA identifying several jobs
McBurnie was able to perform given her limitations. The letter described to
McBurnie in specific detail the reasons for denying her LTD claim. It
concluded by informing McBurnie that she could submit additional medical
records, test results, and therapy notes for the period from September 30,
2012 onward. It also informed McBurnie that she could submit medical
records “that depict her functional abilities.” LINA’s denial letter fulfills the
statutory requirement that it include “[a] description of any additional . . .
information necessary . . . to perfect the claim.” 29 C.F.R. § 2560.503-
1(g)(1)(iii). The letter therefore meets the requirements of meaningful
dialogue.
AFFIRMED.

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