                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 12 2010

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




                            FOR THE NINTH CIRCUIT



ALECK SIMONIA,                                   No. 09-55569

              Plaintiff - Appellant,             D.C. No. 2:07-cv-08090-VBK

  v.
                                                 MEMORANDUM *
GLENDALE NISSAN/INFINITI
DISABILITY PLAN, an ERISA plan;
THE HARTFORD INSURANCE
COMPANY, a corporation,

              Defendants - Appellees.



                   Appeal from the United States District Court
                        for the Central District of California
                   Victor B. Kenton, Magistrate Judge, Presiding

                              Submitted May 3, 2010 **
                                Pasadena, California

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW, ***
District Judge.


        *
             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 Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
       Plaintiff-Appellant Aleck Simonia (“Simonia”) appeals a district court

decision and judgment in favor of Defendants-Appellees Glendale Nissan/Infiniti

Disability Plan and the Hartford Insurance Company (“Hartford”) following a one-

day bench trial in his Employee Retirement Income Security Act (“ERISA”) action

seeking continuing long-term disability benefits for depression. The parties are

familiar with the facts of the case and we do not repeat them here. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the judgment of the

district court.

       We need not reach Simonia’s argument regarding the appropriate standard

of review, because we agree with the district court that “even if [we] adopted a de

novo standard of review, the conclusion would be the same.” Simonia v. Hartford

Ins. Co., 606 F. Supp. 2d 1091, 1098 (C.D. Cal. 2009).

       Hartford did not err in determining that Simonia was no longer physically

disabled. Even assuming that Hartford violated 29 C.F.R. § 2560.503-1(h)(3)(iv)

by failing to identify the “Rehabilitation Clinical Case Manager” by name, Simonia

points to no prejudice resulting from such violation that would merit any relief.

See Parker v. Bank of Am., 50 F.3d 757, 769 (9th Cir. 1995). Because the 2007

Assessment of Employability explained the underlying methodology for its

conclusion, we are satisfied that Hartford substantially complied with ERISA


                                          2
claims procedures and therefore provided Simonia’s claim the requisite full and

fair review. See Brogan v. Holland, 105 F.3d 158, 165–66 (9th Cir. 1997).

      Hartford similarly did not err in classifying Simonia’s diagnosis of

depression as a “mental disorder” subject to the plan’s twelve-month payment

limit. Here, unlike in Kunin v. Benefit Trust Life Insurance Co., 910 F.2d 534, 541

(9th Cir. 1990), and Patterson v. Hughes Aircraft Co., 11 F.3d 948, 950 (9th Cir.

1993) (per curiam), the doctrine of contra proferentem does not apply. Under the

plan, “‘Mental Disorder’ means a disorder found in the current diagnostic

standards manual of the American Psychiatric Association.” Simonia’s

psychiatrist, Dr. Lukas Alexanian, repeatedly diagnosed Simonia as “depressed”

and “severely depressed.” The “current diagnostic standards manual of the

American Psychiatric Association” is the Diagnostic and Statistical Manual of

Mental Disorders, Fourth Edition Text Revision. Depressive disorders are “found”

on pages 369 to 382. See Diagnostic and Statistical Manual of Mental Disorders,

Fourth Edition Text Revision (2000) at 369–82.

      Simonia’s depressive disorder is unambiguously a “mental disorder” under

the plain language of the plan, and as a result, the doctrine of contra proferentem

does not apply. Cf. Kunin, 910 F.2d at 541. Simonia’s argument that his

depression is caused by a prior physical disorder is thus unavailing. See id.


                                          3
Hartford did not err by invoking the plan’s twelve-month limitation on disability

payments for mental disorders.

      Simonia’s separate appeal seeking attorney fees—No. 09-56025—has been

held in abeyance pending the Supreme Court’s disposition of Hardt v. Reliance

Standard Insurance Co., Sup. Ct. No. 09-448. This disposition shall have no effect

on the order of abeyance in that case.

      AFFIRMED.




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