FILED
NOT FOR PUBLICATION MAY 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALECK SIMONIA, No. 09-55569
Plaintiff - Appellant, D.C. No. 2:07-cv-08090-VBK
v.
MEMORANDUM *
GLENDALE NISSAN/INFINITI
DISABILITY PLAN, an ERISA plan;
THE HARTFORD INSURANCE
COMPANY, a corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Victor B. Kenton, Magistrate Judge, Presiding
Submitted May 3, 2010 **
Pasadena, California
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW, ***
District Judge.
*
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).
***
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
Plaintiff-Appellant Aleck Simonia (“Simonia”) appeals a district court
decision and judgment in favor of Defendants-Appellees Glendale Nissan/Infiniti
Disability Plan and the Hartford Insurance Company (“Hartford”) following a one-
day bench trial in his Employee Retirement Income Security Act (“ERISA”) action
seeking continuing long-term disability benefits for depression. The parties are
familiar with the facts of the case and we do not repeat them here. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the judgment of the
district court.
We need not reach Simonia’s argument regarding the appropriate standard
of review, because we agree with the district court that “even if [we] adopted a de
novo standard of review, the conclusion would be the same.” Simonia v. Hartford
Ins. Co., 606 F. Supp. 2d 1091, 1098 (C.D. Cal. 2009).
Hartford did not err in determining that Simonia was no longer physically
disabled. Even assuming that Hartford violated 29 C.F.R. § 2560.503-1(h)(3)(iv)
by failing to identify the “Rehabilitation Clinical Case Manager” by name, Simonia
points to no prejudice resulting from such violation that would merit any relief.
See Parker v. Bank of Am., 50 F.3d 757, 769 (9th Cir. 1995). Because the 2007
Assessment of Employability explained the underlying methodology for its
conclusion, we are satisfied that Hartford substantially complied with ERISA
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claims procedures and therefore provided Simonia’s claim the requisite full and
fair review. See Brogan v. Holland, 105 F.3d 158, 165–66 (9th Cir. 1997).
Hartford similarly did not err in classifying Simonia’s diagnosis of
depression as a “mental disorder” subject to the plan’s twelve-month payment
limit. Here, unlike in Kunin v. Benefit Trust Life Insurance Co., 910 F.2d 534, 541
(9th Cir. 1990), and Patterson v. Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir.
1993) (per curiam), the doctrine of contra proferentem does not apply. Under the
plan, “‘Mental Disorder’ means a disorder found in the current diagnostic
standards manual of the American Psychiatric Association.” Simonia’s
psychiatrist, Dr. Lukas Alexanian, repeatedly diagnosed Simonia as “depressed”
and “severely depressed.” The “current diagnostic standards manual of the
American Psychiatric Association” is the Diagnostic and Statistical Manual of
Mental Disorders, Fourth Edition Text Revision. Depressive disorders are “found”
on pages 369 to 382. See Diagnostic and Statistical Manual of Mental Disorders,
Fourth Edition Text Revision (2000) at 369–82.
Simonia’s depressive disorder is unambiguously a “mental disorder” under
the plain language of the plan, and as a result, the doctrine of contra proferentem
does not apply. Cf. Kunin, 910 F.2d at 541. Simonia’s argument that his
depression is caused by a prior physical disorder is thus unavailing. See id.
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Hartford did not err by invoking the plan’s twelve-month limitation on disability
payments for mental disorders.
Simonia’s separate appeal seeking attorney fees—No. 09-56025—has been
held in abeyance pending the Supreme Court’s disposition of Hardt v. Reliance
Standard Insurance Co., Sup. Ct. No. 09-448. This disposition shall have no effect
on the order of abeyance in that case.
AFFIRMED.
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