                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 15 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JANICE PARKER,                                    No. 09-56674

              Plaintiff - Appellant,              D.C. No. 5:07-cv-01512-SGL-OP

  v.
                                                  MEMORANDUM *
VULCAN MATERIALS COMPANY
LONG TERM DISABILITY PLAN, an
ERISA plan,

              Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen G. Larson, District Judge, Presiding

                            Submitted February 9, 2011 **
                               Pasadena, California

Before: D.W. NELSON, REINHARDT, and N.R. SMITH, Circuit Judges.

       Janice Parker appeals the district court’s affirmance of Hartford’s denial of

her claim for disability benefits. The district court applied abuse of discretion


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review and found that Hartford had not abused its discretion in denying benefits.

We reverse and remand to the district court.

      1.      On appeal, Hartford argues for the first time that the court should

apply the 2004 plan which gives Hartford discretion to interpret the plan terms and

determine eligibility for benefits. Hartford had previously affirmatively asserted

that the 1997 plan applied to Parker’s claim and did not dispute the issue before the

district court. Absent exceptional circumstances, this court will not address issues

not raised before the district court. AlohaCare v. Hawaii, Dept. of Human Servs.,

572 F.3d 740, 744 (9th Cir. 2009). Therefore, we hold that the 1997 plan is

applicable.

      2.      The district court erred in holding that the standard of review under

the 1997 plan was abuse of discretion. The default standard of review in an ERISA

case is de novo, unless the plan grants the administrator discretionary authority.

Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). The relevant

language in the 1997 plan states only that claimants are entitled to “a full and fair

review” of their claims. Such language is not an unambiguous grant of discretion;

therefore, the correct standard of review is de novo. Sandy v. Reliance Standard

Life Ins. Co., 222 F.3d 1202, 1206 (9th Cir. 2000).

      3.      The district court erred in holding that the mental disorder limitation

was not implicated in Hartford’s denial of Parker’s claim. Hartford stated, in its
letters and district court briefs, that it discontinued paying Parker’s benefits

because of the 24-month mental disorder limitation. Although Hartford ultimately

denied Parker’s claim on the ground that she did not prove she was disabled by a

physical defect, Hartford refused to consider Parker’s previously acknowledged

mental disabilities because of the mental disorder limitation. Therefore, the mental

disorder limitation was implicated.

       4.     Hartford’s mental disorder limitation is similar to that in Patterson v.

Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir. 1993). The limitation is

ambiguous, because it is not clear “whether a disability is to be classified as

‘mental’ by looking to the cause of the disability or to its symptoms” or whether a

disability resulting from “a combination of physical and mental factors” is included

in the limitation. Id. Since ambiguities are construed against the drafter, Parker’s

illness is not within the limitation if a physical illness contributes to, or is a cause

or symptom of, the mental disorder. Id. at 950-51. Thus, if Parker’s depression

caused her physical symptoms, she would still be entitled to benefits. Similarly, if

her physical problems contributed to the depression and anxiety that Hartford

previously found to be totally disabling, she is still entitled to benefits, regardless

of the limitation.

       Because the district court did not consider the mental disorder limitation or

apply the correct definition of that limitation, we remand for consideration
consistent with this disposition. See Mongeluzo v. Baxter Travenol Disability

Benefit Plan, 46 F.3d 938, 943-44 (9th Cir. 1995).

      REVERSED and REMANDED
