                                                                           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                           NOT FOR PUBLICATION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



                                            2
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


                                           3
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


                                             4
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


                                           5
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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