
    Christopher W. HASNEY, an individual, Plaintiff—Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, aka Met Disability, aka Metlife, Defendant—Appellee.
    No. 00-17519.
    D.C. No. CV-99-00548-ACM.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted April 11, 2002.
    Decided July 17, 2002.
    Before SCHROEDER, Chief Judge, B. FLETCHER, and KOZINSKI, Circuit Judges.
   MEMORANDUM

Christopher Hasney filed this action in federal court challenging Metropolitan Life Insurance Company’s denial of long-term disability benefits under his employer-sponsored insurance plan. The district court granted summary judgment in Met Life’s favor, ruling that Met Life’s denial of benefits was subject to review for abuse of discretion and that Met Life had not abused its discretion in denying benefits. The district court also granted Met Life’s request for a protective order striking several of Hasne/s interrogatories. Hasney appeals all three rulings.

The Met Life policy under which Hasney was insured unambiguously reserved to Met Life discretion to interpret the policy, but because Met Life operated under an apparent conflict of interest as both plan administrator and plan funder, it is not entitled to abuse of discretion review if Hasney presented material, probative evidence that Met Life’s conflict caused it to breach its fiduciary duties toward Hasney. McDaniel v. Chevron Corp., 203 F.3d 1099, 1108 (9th Cir.2000). Hasney has presented material, probative evidence that Met life violated its fiduciary duties and should therefore have been subjected to de novo review.

Met Life discounted the opinions of Hasty's treating physician, even though the independent medical examiners upon whom it relied did not have access to Hasne/s job responsibilities and could not therefore opine on whether or not Hasney was disabled from his own occupation (as required by the plan). Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1147 (9th Cir.2001).

As one of Hasney’s experts noted, the specific deficiencies Hasney exhibited in Met Life’s cognitive tests were particularly relevant to his occupation as a stockbroker-memory loss and mathematical difficulties. The district court erred in holding that Hasney had not presented material, probative evidence that Met Life breached its fiduciary duty, and therefore erred in applying the abuse of discretion standard.

The district court’s judgment is reversed and the case remanded for further proceedings under a de novo standard of review.

REVERSED AND REMANDED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
     