                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 27 2014

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



                            FOR THE NINTH CIRCUIT


RICHARD KLUDKA,                                  No. 12-16354

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01806-DGC

  v.
                                                 MEMORANDUM*
QWEST DISABILITY PLAN; QWEST
COMMUNICATIONS
INTERNATIONAL INC.; QWEST
COMMUNICATIONS
INTERNATIONAL INC. HEALTH
INSURANCE PLAN; QWEST
EMPLOYEE BENEFITS PLANS,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                       Argued and Submitted June 12, 2014
                            San Francisco, California

Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Richard Kludka appeals the district court’s grant of summary judgment, on

remand from this court, Kludka v. Qwest Disability Plan, 454 F. App’x 611 (9th

Cir. 2011) (unpublished), in his Employee Retirement Income Security Act

(“ERISA”) action challenging Qwest Disability Services’ (“QDS”) termination of

his long-term disability benefits under the Qwest Disability Plan (“the Plan”). We

have jurisdiction under 28 U.S.C. § 1291. We affirm.

      We review de novo the district court’s grant of a motion for summary

judgment and the “district court’s choice and application of the standard of review

to decisions by fiduciaries in ERISA cases.” Nolan v. Heald Coll., 551 F.3d 1148,

1153 (9th Cir. 2009) (internal quotation marks and citation omitted). We review

the district court’s decision to exclude extrinsic evidence for abuse of discretion.

Muniz v. Amec Constr. Mgmt., Inc., 623 F.3d 1290, 1294 (9th Cir. 2010).

      Here, the district court did not err in concluding that QDS, the third-party

administrator of the Plan, did not abuse its discretion in terminating Kludka’s long-

term disability benefits. Although QDS committed two procedural errors—failing

to specify what documents Kludka could submit to perfect his claim under 29

C.F.R. § 2560.503-1(g)(1)(iii) and failing to investigate whether Kludka was still

receiving Social Security benefits—these errors, neither individually nor

cumulatively, amounted to an abuse of discretion. See Salomaa v. Honda Long


                                           2
Term Disability Plan, 642 F.3d 666, 676 (9th Cir. 2011) (holding that abuse of

discretion exists only when “we are left with a definite and firm conviction that a

mistake has been committed” (internal quotation marks omitted)). Kludka has

failed to identify any documents he could have introduced that would have

perfected his claim.

      Furthermore, the district court did not err in failing to consider Kludka’s

extrinsic evidence of QDS’s alleged conflict of interest. “Judicial review of an

ERISA plan administrator’s decision on the merits is limited to the administrative

record. . . .” Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 632 (9th Cir.

2009). Kludka relies on Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th

Cir. 2006) (en banc), for the proposition that appellate courts can supplement the

administrative record, but there we found flagrant procedural abuses that are not

present here. See id. 972–73. Accordingly, excluding such evidence was not an

abuse of discretion. See Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.

2002) (holding that abuse of discretion exists only where “evidentiary ruling was

manifestly erroneous and prejudicial”).

      AFFIRMED.




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