                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                              DEC 10 2012

                                                                           MOLLY C. DWYER, CLERK
SARA G. MAURER,                                  No. 11-16044               U.S. COURT OF APPEALS



              Plaintiff - Appellant,             D.C. No. 3:08-cv-04109-MMC

  v.
                                                 MEMORANDUM*
RELIANCE STANDARD LIFE
INSURANCE COMPANY; THE LAW
OFFICES OF SARA G. MAURER LONG
TERM DISABILITY PLAN,

              Defendants - Appellees.


                  Appeal from the United States District Court
                     for the Northern District of California
               Maxine M. Chesney, Senior District Judge, Presiding

                     Argued and Submitted December 3, 2012
                            San Francisco, California

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

       Plaintiff Sara G. Maurer, the beneficiary of a long-term disability plan ("the

Plan") that is governed by the Employee Retirement and Income Security Act of

1974 ("ERISA"), challenges the discretionary decision of Defendant Reliance



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Standard Life Insurance, the Plan’s administrator, to terminate her disability

benefits. The district court held that Defendant did not abuse its discretion in

terminating her benefits. Because we hold that Defendant permissibly applied the

Plan’s "mental/nervous" limitation to terminate Plaintiff’s benefits, we affirm.

      1. We assume, without deciding, that we must apply a high level of

skepticism in assessing whether Defendant abused its discretion. See Abatie v.

Alta Health & Life Ins. Co., 458 F.3d 955, 965–69 (9th Cir. 2006) (en banc)

(discussing the scope of our review in this context). Even applying a high level of

skepticism, the record supports Defendant’s decision to terminate benefits.

      2. Defendant permissibly interpreted the "mental/nervous" limitation to

preclude coverage when, in the absence of a mental or nervous disorder, a

beneficiary would be physically capable of working. Defendant’s interpretation is

consistent with the Plan’s limitation of coverage for disabilities that are "caused by

or contributed to" by mental disorders. (Emphasis added.) The doctrine of contra

proferentem does not apply "where, as here, the Plan grants the fiduciary explicit

discretion to interpret the Plan." Winters v. Costco Wholesale Corp., 49 F.3d 550,

554 (9th Cir. 1995); accord Blankenship v. Liberty Life Assurance Co. of Boston,

486 F.3d 620, 625 (9th Cir. 2007). Further, nothing in the text of the Plan specifies




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that the limitation applies only when a mental disorder is the sole cause of a

disability, as Plaintiff would interpret it.

       3. The record contains ample support for Defendant’s conclusion that, in the

absence of any mental or nervous disorder, Plaintiff would be physically capable of

working. Based on Plaintiff’s medical records, three doctors found that her

psychological problems contributed to her disability. Dr. Hauptman concluded

that "psychological factors including stress are the primary factors that correlate

with [Plaintiff’s] reports of increasing musculoskeletal symptoms." Dr.

Schofferman, although acknowledging that he lacked some important information

about Plaintiff’s physical condition, had an "overall sense that without the

psychiatric elements, the patient would be capable of work activity." And Dr.

Birnbaum did not "find purely physical reasons for [Plaintiff’s] claim of disabling

pain" but concluded that her "symptoms are primarily related to chronic pain and

psychiatric dysfunction rather than inflammatory disease." Dr. Hines’ opinion that

Plaintiff’s physical problems caused her mood disorder and Dr. Campagna’s

opinion that there is a physical basis for Plaintiff’s disability are not inconsistent

with Defendant’s conclusion that a mental disorder at least "contributed to" her

disability. (Emphasis added.)




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      4. Because our holding that Defendant did not abuse its discretion in

applying the "mental/nervous" limitation to terminate Plaintiff’s benefits is

sufficient to affirm the judgment of the district court, we need not address the

remaining issues presented and express no views about them.

      AFFIRMED.




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