NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROBIN CURRAN, No. 15-56599
Plaintiff-Appellant, D.C. No.
3:12-cv-01935-JLS-BLM
v.
UNITED OF OMAHA LIFE MEMORANDUM*
INSURANCE COMPANY,
Defendant-Appellee.
ROBIN CURRAN, No. 15-56668
Plaintiff-Appellee, D.C. No.
3:12-cv-01935-JLS-BLM
v.
UNITED OF OMAHA LIFE
INSURANCE COMPANY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted August 30, 2017
Pasadena, California
Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,** District
Judge.
Robin Curran appeals the district court’s decision affirming United of
Omaha’s denial of disability benefits under the terms of her employee benefits plan
(the Plan), which is governed by the provisions of the Employee Retirement
Income Security Act (ERISA) of 1974, 29 U.S.C. §§ 1001–1461. United cross-
appeals the district court’s determination that Curran was totally disabled within
the meaning of the Plan. We have jurisdiction under 28 U.S.C. § 1291.
The district court did not clearly err in determining that United had properly
limited disability payments to 24 months under the Plan’s Self-Reported
Symptoms (SRS) limitation, given that the record did not include objective
evidence supporting Curran’s claimed disability. Curran concedes there is no
evidence in the record that her fibromyalgia diagnosis was based on the 18-point
trigger-point test. Nor does the record establish that a fibromyalgia diagnosis was
based on any other objective test. Further, the record does not include any
objective evidence that she suffers from Lyme disease or chronic fatigue
**
The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
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syndrome. The district court did not abuse its discretion in denying Curran’s post-
judgment motion to supplement the record with a letter from Dr. Wightman
because she could have reasonably secured the letter earlier in the litigation. See
Fed. R. Civ. Proc. 59(e); Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).
Contrary to Curran’s argument, United gave Curran meaningful notification
of its adverse benefit determination, including the “specific reason or reasons for
the adverse determination” and a “[r]eference to the specific plan provisions on
which the determination is based.” 29 C.F.R. § 2560.503-1(g); 29 U.S.C.
§ 1133(1). United’s May 9, 2011 letter, which stated that the SRS limitation was
one of the two “provision(s) in your policy on which the denial of your claim is
based” and provided the full text of that provision, complied with the regulatory
requirements. See § 2560.503-1(g); Booton v. Lockheed Medical Ben. Plan, 110
F.3d 1461, 1463 (9th Cir. 1997).1
United adequately notified Curran of the “additional material or information
necessary . . . to perfect [her] claim.” 29 C.F.R. § 2560.503-1(g)(1)(iii). The initial
1
Curran argues that United failed to give her proper notification by not
referencing the SRS limitation in its final letter denying her appeal. Because this
argument was raised for the first time in the reply brief, it is waived. Martinez-
Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996). In any event, it is meritless,
because United adequately explained the basis for its denial of benefits in its May
11, 2011 denial letter and Curran did not challenge the SRS limitation in her
administrative appeal.
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denial letter provided a detailed, three-page summary of Curran’s medical file and
repeatedly noted the absence of specific objective evidence supporting her claim,
including the lack of the trigger-point test for fibromyalgia. Unlike cases where
insurers denied claims based on conclusory statements that the evidence was
insufficient or that services were not covered, see Saffon v. Wells Fargo & Co.
Long Term Disability Plan, 522 F.3d 863, 870 (9th Cir. 2008); Booton, 110 F.3d at
164 & n.4, United amply identified the evidence required to provide an objective
basis for Curran’s diagnoses.
We do not address whether United was required to plead the SRS limitation
as an affirmative defense or whether it in fact did so. Because the parties briefed
and argued the SRS limitation before the district court, it was tried by implied
consent. See Fed. R. Civ. Proc. 15(b)(2); see also Idaho Plumbers & Pipefitters
Health & Welfare Fund v. United Mech. Contractors, Inc., 875 F.2d 212, 214–15
(9th Cir. 1989).2
AFFIRMED.
2
Because we affirm the district court’s holding that United’s denial of
benefits was proper under the SRS limitation, we do not reach United’s cross-
appeal. See Rincon Band of Luiseno Mission Indians of Rincon Reservation v.
Schwarzenegger, 602 F.3d 1019, 1022 n.1 (9th Cir. 2010). We also deny Curran’s
contested motion for judicial notice, filed March 13, 2017, as it pertains only to
United’s cross-appeal.
4