FILED
NOT FOR PUBLICATION MAR 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES ERMOVICK, No. 10-56606
Plaintiff - Appellant, D.C. No. 2:05-cv-06018-JHN-
VBK
v.
MITCHELL SILBERBERG AND KNUPP MEMORANDUM*
LLP LONG TERM DISABILITY FOR
ALL EMPLOYEES, an ERISA plan,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding
Argued and Submitted March 7, 2012
Pasadena, California
Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.
James Ermovick (“Ermovick”) appeals the district court’s judgment in favor
of Mitchell, Silberberg & Knupp, LLP, Long Term Disability Coverage for All
Employees (“the Plan”), a plan governed by the Employee Retirement Income
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Security Act of 1974 (“ERISA”), after a trial on the administrative record, in which
the district court concluded that Ermovick was not eligible for benefits. Ermovick
argues: (1) that the administrative record did not support the district court’s
conclusion, (2) that the district court applied a test for “disability” not found in the
Plan, and (3) that the district court did not accord Ermovick a “full and fair review”
as purportedly required by ERISA. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
Ermovick filed a claim in the district court after Prudential Insurance
Company of America (“Prudential”), which insured and administered the Plan,
determined that Ermovick was not disabled under the Plan. The Plan stated that
“[a]fter 24 months of payments, you are disabled when Prudential determines that
due to the same sickness or injury, you are unable to perform the duties of any
gainful occupation for which you are reasonably fitted by education, training or
experience.”
“Where, as here, a district court has conducted a de novo review of an
ERISA plan administrator’s decision, we review the [district] court’s factual
findings only to determine whether they are clearly erroneous.” Muniz v. AMEC
Constr. Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir. 2010) (internal quotations
marks and citation omitted). “Review under the clearly erroneous standard is
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significantly deferential, requiring for reversal a definite and firm conviction that a
mistake has been made. The standard does not entitle a reviewing court to reverse
the finding of the trial court simply because the reviewing court might have
decided differently.” United States v. Asagba, 77 F.3d 324, 326 (9th Cir. 1996)
(internal citations omitted).
Ermovick first argues that Judge Nguyen’s decision was not supported by
the administrative record. We disagree. Judge Nguyen’s findings were not clearly
erroneous because the administrative record amply supports that Ermovick was not
disabled under the terms of the Plan. Nor are we persuaded by Ermovick’s
argument that Judge Nguyen applied an incorrect definition of disability. Having
carefully reviewed the record, we conclude that Judge Nguyen applied the correct
standard in the Plan for disability addressing whether, due to Ermovick’s physical
impairments, he was unable to perform “any gainful occupation for which [he is]
reasonably fitted by education, training or experience.” Upon her de novo review
Judge Nguyen concluded that Ermovick could engage in gainful employment with
a sedentary job and suitable accommodations.
Finally, Ermovick argues that he was denied a “full and fair review” as
required by ERISA. That provision of the statute describes the obligation of a plan
administrator. See 29 U.S.C. § 1133(2). Given Judge Nguyen’s de novo review of
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the administrative record, Ermovick was accorded the full, fair, and independent
review of the district court. See Muniz, 623 F.3d at 1298 n.4 (“The district court
conducted a de novo review of the record and thus did not accord any deference to
[the plan administrator’s] decision. The adequacy of [the plan administrator’s]
review is therefore not before this court.”). Judge Nguyen did not give deference
to Prudential’s findings or conclusions, so Ermovick’s arguments regarding
Prudential’s purported procedural misconduct are not relevant to our decision.
Similarly, Ermovick’s argument that he did not have a chance to supplement
the administrative record to provide additional evidence of the nexus between his
injuries and his inability to engage in any gainful employment is not persuasive.
Ermovick had to prove eligibility, but he did not proffer additional evidence during
his third administrative appeal and did not ask to submit additional evidence to the
district court before it conducted its de novo review.
AFFIRMED.
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