FILED
NOT FOR PUBLICATION
OCT 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL LESLIE, No. 14-56775
Plaintiff-Appellant, D.C. No.
2:13-cv-07056-GAF-RZ
v.
UNITED OF OMAHA LIFE MEMORANDUM*
INSURANCE COMPANY, a corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted October 21, 2016**
Pasadena, California
Before: TALLMAN, PARKER,*** and CHRISTEN, Circuit Judges.
*
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 Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
Cheryl Leslie appeals the district court’s judgment, after a trial on the
administrative record, in her action under the Employee Retirement Income
Security Act (“ERISA”). Leslie challenges the denial of her long-term disability
benefits claim under her employer’s plan with United of Omaha Life Insurance
Company (“United”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm
the district court’s judgment.
This court reviews a denial of ERISA benefits de novo, Saffon v. Wells
Fargo & Co. Long Term Disability Plan, 522 F.3d 863, 866 (9th Cir. 2008), and
reviews the district court’s underlying findings of fact for clear error, Silver v.
Exec. Car Leasing Long-Term Disability Plan, 466 F.3d 727, 733 (9th Cir. 2006)
(citing Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en
banc)). “Review under the clearly erroneous standard is significantly deferential,
requiring for reversal a definite and firm conviction that a mistake has been made.”
United States v. Asagba, 77 F.3d 324, 326 (9th Cir. 1996) (citing Concrete Pipe &
Prods. of Cal., Inc. v. Constr. Laborers Pension Tr., 508 U.S. 602, 623 (1993)).
1. The District Court did not err by concluding that United used the
proper definition of “Usual Occupation” in denying Leslie’s claim.
United’s plan considers a claimant “Totally Disabled” when the claimant is
“unable to perform with reasonable continuity the Substantial and Material Acts
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necessary to pursue [his or her] Usual Occupation.” Leslie claims that lifting forty
to fifty pounds is a “Substantial and Material Act” necessary to her “Usual
Occupation.” The district court considered: (1) the broad language describing the
“Substantial and Material Acts” required in a “Usual Occupation” in United’s plan;
(2) the vocational expert’s findings that lifting forty to fifty pounds was not
“generally required by employers from those engaged in Leslie’s Usual
Occupation,” based on the Dictionary of Occupational Titles, and was not a
“Substantial and Material task associated with the position”; and (3) Leslie’s job
description, by which her employer listed the “occasional” requirement of lifting
forty to fifty pounds. Given these considerations, the district court did not err by
finding that Leslie was not required to lift forty to fifty pounds as a substantial and
material part of her occupation and concluding that United used the proper “Usual
Occupation” definition.
2. The District Court did not clearly err by finding that Leslie was not
totally disabled by fibromyalgia from performing the substantial and
material duties of her Usual Occupation.
“[A] district court’s determination of whether an individual is totally
disabled within the meaning of an ERISA policy is essentially a factual question,
subject to a ‘clearly erroneous’ standard of review.” Deegan v. Cont’l Cas. Co.,
167 F.3d 502, 508 (9th Cir. 1999). We do not have “a definite and firm conviction
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that a mistake has been made” in the district court’s finding that Leslie was not
totally disabled, for several reasons: (1) although the district court may have
incorrectly discounted Dr. Sue Chung’s Attending Physician Statement (APS) on
the basis that the statement was written in response to United’s denial, the district
court also discounted Dr. Chung’s APS on the basis that it was not consistent with
the description of Leslie’s condition in Dr. Chung’s office notes; (2) other than Dr.
Chung’s APS, there was no evidence in the medical record that Leslie was
restricted in her ability to lift, sit, stand, or walk, or otherwise perform the
substantial and material duties of her occupation and Dr. Chung’s office notes did
not reflect these conclusions; (3) no other treating physicians placed any
restrictions on Leslie’s activities; and (4) numerous treating physicians, including
Dr. Chung, noted that Leslie was in no acute distress and had a full range of
motion. See Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d
869, 880 (9th Cir. 2004) (finding a lack of acute distress may serve as an indication
that a claimant suffering from fibromyalgia does not have “pain . . . so severe as to
prevent her from doing her work”), overruled on other grounds by Abatie v. Alta
Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006) (en banc); Asagba, 77 F.3d at
326. Even if the district court had fully credited Dr. Chung’s APS, the lack of
supporting evidence indicates that Leslie did not meet her burden at the district
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court to show total disability by a preponderance of the evidence. See Muniz v.
Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir. 2010) (holding that
claimants bear the burden to prove entitlement to benefits at the district court). We
therefore conclude the district court did not clearly err by finding Leslie was not
totally disabled by fibromyalgia from performing the substantial and material
duties of her Usual Occupation.
3. The district court clearly erred by finding that Leslie’s fibromyalgia
was a pre-existing condition not covered under the plan, but the error
was harmless.
United’s plan does not cover disabilities if pre-existing conditions
substantially contributed to the disabilities. United defines pre-existing conditions
as situations where “[a claimant] received medical treatment, care or services for a
diagnosed condition or took prescribed medication for a diagnosed condition in the
first 3 months immediately prior to the effective date of coverage under this
Policy” (emphasis added). Leslie’s coverage began January 1, 2012, but the record
shows no evidence that she had been diagnosed with fibromyalgia prior to April
2012. United concluded that Leslie’s fibromyalgia was not a pre-existing
condition, and it does not rely on that exclusion here.
Although the district court erred by concluding that Leslie’s fibromyalgia
was a pre-existing condition, this was an independent basis for denying Leslie’s
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claim. See Weiser v. United States, 959 F.2d 146, 147 (9th Cir. 1992) (“[This
court] can affirm the district court on any grounds supported by the record.”). We
therefore affirm the district court’s ruling because the district court’s error was
harmless.
Each party shall bear its own costs associated with this appeal.
AFFIRMED.
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