                                                                          FILED
                            NOT FOR PUBLICATION                            DEC 23 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SUNITA SETHI,                                    No. 12-17215

              Plaintiff - Appellant,             D.C. No. 3:11-cv-06188-WHA

       v.
                                                 MEMORANDUM*
SEAGATE US LLC GROUP
DISABILITY INCOME PLAN;
LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON,

              Defendants - Appellees.

                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                     Argued and Submitted December 12, 2014
                             San Francisco, California

Before: FISHER, RAWLINSON and MURGUIA, Circuit Judges.

      Sunita Sethi appeals the district court’s grant of summary judgment on her

claims for long term disability benefits under an employee benefits plan governed

by the Employee Retirement Income Security Act (ERISA). We review the district



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court’s decision de novo, see Tremain v. Bell Indus., Inc., 196 F.3d 970, 975 (9th

Cir. 1999), and Liberty Life Assurance Company’s denial of benefits for an abuse

of discretion, see Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir.

2006) (en banc). We affirm.

      1. Liberty did not abuse its discretion by denying benefits without

addressing decisions made in her workers’ compensation case. Because Sethi has

not shown a conflict between Liberty’s decision and the workers’ compensation

decisions, no further explanation was required. Cf. Montour v. Hartford Life &

Accident Ins. Co., 588 F.3d 623, 635-37 (9th Cir. 2009).

      2. Liberty did not abuse its discretion by denying benefits without further

clarifying Dr. Abaci’s opinion. Although Dr. Abaci’s original report was

ambiguous, Dr. Abaci clarified in his communications with Dr. Kerstman that

Sethi was currently capable of sedentary work. See Schikore v. BankAmerica

Supplemental Ret. Plan, 269 F.3d 956, 960 (9th Cir. 2001) (noting that a plan

administrator must “develop facts necessary to make its determination”).

      3. Liberty did not abuse its discretion by relying on its vocational expert. A

personal interview was not required under the circumstances. See Pannebecker v.

Liberty Life Assurance Co. of Boston, 542 F.3d 1213, 1216, 1218-19 (9th Cir.

2008); McKenzie v. Gen. Tel. Co. of Cal., 41 F.3d 1310, 1316-17 (9th Cir. 1994),


                                          2
abrogated on other grounds as recognized in Saffon v. Wells Fargo & Co. Long

Term Disability Plan, 522 F.3d 863, 872 n.2 (9th Cir. 2008). The expert

adequately addressed Sethi’s age and educational background. The district court

properly declined to consider evidence of Sethi’s limited English skills because

this evidence was not part of the administrative record. See Abatie, 458 F.3d at

969-70.

      4. Liberty did not abuse its discretion by terminating Sethi’s benefits even

though she was scheduled to participate in a functional restoration program

authorized by workers’ compensation. Under the Plan, Sethi could continue to

receive benefits only if she was “unable to perform, with reasonable continuity, all

of the material and substantial duties of [her] own or any other occupation for

which [she] is or becomes reasonably fitted by training, education, experience, age

and physical and mental capacity.” When Liberty terminated Sethi’s benefits, she

was able to perform a range of sedentary work, as shown by her own judicial

admissions, her treating physician’s opinion and the opinions of a reviewing

physician and a vocational expert. Sethi has presented no authority to establish

that participation in a rehabilitation program, standing alone, constitutes a

disability under the Plan’s “any occupation” provision.




                                           3
      5. Sethi makes a colorable argument that the district court abused its

discretion by denying her request to conduct discovery into Liberty’s structural

conflict of interest. See Burke v. Pitney Bowes Inc. Long-Term Disability Plan,

544 F.3d 1016, 1028 n.15 (9th Cir. 2008); Abatie, 458 F.3d at 970. We decline to

determine whether the district court erred, however, because any error was

harmless. See Sanchez v. Aerovias De Mexico, S.A. De C.V., 590 F.3d 1027, 1029

(9th Cir. 2010).

      6. Sethi argues for the first time in her reply brief that Liberty’s

interpretation of the Plan should have been governed by Erreca v. Western States

Life Insurance Co., 121 P.2d 689, 694 (Cal. 1942), and that the case should have

been remanded to Liberty for supplementation of the record with additional Plan

documents in accordance with 29 C.F.R. § 2560.503-1(h)(2)(iii) and (m)(8). Sethi

waived these arguments by failing to raise them in her opening brief. See Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      AFFIRMED.




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