                                                                              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                           NOT FOR PUBLICATION                                MAR 16 2012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


                                      Page 2 of 4
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


                                     Page 3 of 4
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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