                                                                           FILED
                                                                            DEC 21 2009
                    UNITED STATES COURT OF APPEALS
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S . CO UR T OF AP PE A LS

                            FOR THE NINTH CIRCUIT



SUSAN HEATON,                                   No. 08-55874

             Plaintiff - Appellant,             D.C. No. 3:06-cv-01403-J-NLS

  v.
                                                ORDER
PRUDENTIAL INSURANCE
COMPANY OF AMERICA; et al.,

             Defendants - Appellees.




Before: HALL, W. FLETCHER and CLIFTON, Circuit Judges.

       The memorandum disposition filed on November 23, 2009, is amended. An

amended memorandum disposition will be filed concurrently with this order. With

these amendments, the panel has voted to deny the petition for rehearing as moot.

No further petitions for rehearing or rehearing en banc may be filed.
                                                                           FILED
                                                                            DEC 21 2009
                           NOT FOR PUBLICATION
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S . CO UR T OF AP PE A LS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



SUSAN HEATON,                                    No. 08-55874

             Plaintiff - Appellant,              D.C. No. 3:06-cv-01403-J-NLS

  v.
                                                 AMENDED MEMORANDUM *
PRUDENTIAL INSURANCE
COMPANY OF AMERICA; et al.,

             Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Southern District of California
                  Napoleon A. Jones, Jr., District Judge, Presiding

                      Argued and Submitted October 5, 2009
                              Pasadena, California

Before: HALL, W. FLETCHER and CLIFTON, Circuit Judges.

       Susan Heaton appeals the district court's order granting defendants' motion

for summary judgment. Because the record manifests a genuine factual dispute

about whether Heaton became totally disabled while she was a full-time Isis



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
employee, summary judgment was improper. We vacate the judgment below and

remand for further proceedings.

      Heaton's eligibility for benefits turns on whether she met her long-term

disability plan's definition of 'total disability' while she was a full-time Isis

employee covered by the plan.

      A factual dispute over the extent of Heaton's disability arose before

Heaton's last day of full-time employment at Isis on April 27, 2000, when she was

indisputably a 'Covered Person' under the plan. Prudential and Isis do not dispute

that Heaton continued to worµ at her own occupation through April 27, 2000.

      Whether Heaton met the plan's definition of 'total disability' before April

27, 2000 depends on whether, before that date, she was 'not able to perform, for

wage or profit, the material and substantial duties of [her] occupation' because of

her disability. Heaton submitted evidence that the usual requirements of her

position included ten to twelve hours of worµ per day, with computer and

handwriting tasµs for more than eight hours per day; that her doctors imposed

substantial restrictions on her activities that left her well short of being able to meet

these requirements; and that two doctors believed that she was disabled or

otherwise unable to perform her 'regular worµ' while she was a full-time




                                            2
employee at Isis. That was more than enough to establish a genuine issue of

material fact.

      Defendants would, in effect, require a negative productivity report, a poor

job performance evaluation, or a memo regarding the quality of Heaton's worµ to

establish total disability. They argue that Isis provided accommodations to allow

Heaton to remain in her job and did not evaluate her poorly because of her physical

limitations. But that does not conclusively establish that she was not 'totally

disabled.' That a sympathetic employer might maµe such accommodations or

tolerate an individual's limitations for at least some period of time does not prove

that the employee was in fact able to perform 'the material and substantial duties

of [her] occupation.' A reasonable factfinder could find, through its own

comparison of medical restrictions and the usual requirements of the employee's

job, that the employee was simply not physically capable of performing the tasµs

her job required at the relevant time. An employer's failure to come to that same

conclusion--or to bother to register its dissatisfaction in the form of a negative

performance review--would not conclusively undermine such a reasonable

determination.

      VACATED and REMANDED.




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