The unpublished decision of Chellino v. Kaiser Foundation Health Plan, Inc., 2009 LEXIS 24350 (November 5, 2009) further illustrates how the Ninth Circuit is likely to apply Glenn to benefits decisions. As with Montour, the Ninth Circuit found an abuse of discretion in connection with a fibromyalgia claim. Among other factors the Ninth Circuit pointed to the administrator’s reliance on surveillance, which comported with the claimant’s self-reports of limitation, the reliance by a reviewing physician on a Functional Capacity Evaluation that the claims administrator considered invalid, the requirement that the claimant produce objective evidence of her fibromyalgia that was not available because there is no objective evidence, and the reliance on a vocational assessment which adopted the medical reviewer’s inaccurate report.
The Fifth Circuit takes the instruction in Glenn that the conflict of interest is “a factor” in determining abuse of discretion literally. The Fifth Circuit noted that while the Glenn decision repudiated that circuit’s previous “sliding scale” approach to conflicts of interest, the cases discussing a sliding scale analysis were still compatible with the Glenn “factor” methodology.