FILED
NOT FOR PUBLICATION NOV 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANEELA GHOURI, No. 09-16817
Plaintiff - Appellant, D.C. No. 3:08-cv-04612-PJH
v.
MEMORANDUM *
JOHNSON & JOHNSON LONG TERM
DISABILITY PLAN and REED GROUP,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted November 4, 2010
San Francisco, California
Before: PAEZ and BEA, Circuit Judges, and DUFFY, District Judge.**
Plaintiff-Appellant Aneela Ghouri appeals from the district court’s order
granting the motion for summary judgment filed by the Defendants-Appellees,
Johnson & Johnson Long Term Disability Plan (the “LTD Plan”) and the
*
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, United States District Judge for
the Southern District of New York, sitting by designation.
administrator of the LTD Plan, the Reed Group. The district court affirmed a
decision by the LTD Plan Review Committee to discontinue Ghouri’s long-term
disability benefits when she failed to timely respond to Reed’s request for proof
that her disability was continuing. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We review the district court’s order de novo, and we affirm.
The LTD Plan states that if a request for additional information is not
answered timely, “no benefit under this Plan shall be payable.” The undisputed
facts show that Ghouri did not provide the information Reed requested by either
the 15-day deadline in the LTD Plan or the 30-day deadline in the request, nor did
she request additional time to respond. In denying Ghouri benefits, Reed and the
Pension Committee relied on an independent medical opinion by Dr. Friedman,
which was based on his own observations and a number of objective tests. Dr.
Friedman opined that Ghouri was not disabled and was capable of performing “any
job commensurate with her training, education or experience.” Although Dr.
Friedman did not specifically address whether Ghouri suffered from any cognitive
disabilities that would have prevented her from responding to the request for
medical information, the Pension Committee could reasonably infer from Dr.
Friedman’s report that no such impairment existed.
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The district court correctly applied the abuse of discretion standard because
there is no evidence that either the LTD Plan or Reed had a conflict of interest that
would warrant a high level of skepticism. See Abatie v. Alta Health & Life Ins.
Co., 458 F.3d 955, 965 (9th Cir. 2006) (en banc).
Ghouri argues on appeal that Reed should be precluded from relying on the
LTD Plan’s deadline since the letter sent by Reed gave her 30 days from the date
of the letter (which was February 2, 2007), instead of 15 days from receipt of the
letter (which was February 1, 2007). This argument would make sense if Ghouri
had responded on February 2, 2007, or even requested additional time to respond
by then, but she did not, and Reed waited until both deadlines had passed before
terminating her benefits. Thus, the difference in deadlines is immaterial.
The deadlines might seem unduly strict, but the plan is allowed to draft the
terms however it wishes, so long as those terms do not violate federal law. Black
& Decker Disability Plan v. Nord, 538 U.S. 822, 833–34 (2003). There is no
federal law prohibiting a 30-day deadline to respond to a request for further proof
of disability, nor even a 15-day deadline.
Ghouri also claims the Pension Committee did not rely on its own deadline
to deny her second appeal. Because Ghouri did not raise this issue in the district
court, she did not preserve it for appellate review. In any event, we fail to see how
3
the LTD Plan acted arbitrarily or capriciously by seeking medical information to
verify Ghouri’s claim that her cognitive difficulties prevented her from responding
on time, especially when the record was devoid of such evidence. And, again, she
fails to show how this delay prejudiced her.
Finally, Ghouri presented no evidence to undermine Dr. Friedman’s
credibility or to otherwise raise a triable issue of material fact as to whether Reed
and the Pension Committee acted arbitrarily or capriciously when relying on Dr.
Friedman’s opinion that Ghouri’s disability did not prevent her from complying
with Reed’s request for additional information in a timely manner.
AFFIRMED.
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