Sunita Sethi v. Seagate Us LLC Group Disability Income Plan; Liberty Life Assurance Company of Boston

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUNITA SETHI,
Plaintiff - Appellant,
v.
SEAGATE US LLC GROUP
DISABILITY INCOME PLAN;
LIBERTY LIFE ASSURANCE
COMPANY OF BOSTON,
Defendants - Appellees.
No. 12-17215
D.C. No. 3:11-cv-06188-WHA
MEMORANDUM*
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
FILED
DEC 23 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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),
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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.
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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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