Isela Dimery v. RELIANCE STANDARD LIFE INSURANCE COMPANY, Administrator

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ISELA DIMERY,
Plaintiff - Appellant,
v.
RELIANCE STANDARD LIFE
INSURANCE COMPANY, Administrator
and Fiduciary of the Genentech, Inc. Long
Term Disability Insurance Plan, et al.,
Defendants - Appellees.
No. 12-17550
D.C. No. 3:10-cv-00481-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted February 9, 2015
San Francisco, California
Before: HAWKINS, PAEZ, and BERZON, Circuit Judges.
As an employee of Genentech, Inc., Plaintiff Isela Dimery (“Dimery”) was a
participant in The Genentech, Inc. Group Long Term Disability Insurance Program
(“Plan”). The Plan is governed by the Employee Retirement Income Security Act
FILED
MAR 11 2015
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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of 1974 (“ERISA”). Defendant Reliance Standard Life Insurance (“Reliance”) is
the administrator and fiduciary of the Plan. Reliance denied Dimery’s continued
long-term disability benefits under the Plan. Dimery filed a complaint for judicial
review under 29 U.S.C. § 1132. The district court, reviewing for abuse of
discretion, granted summary judgment in favor of Reliance. Dimery timely
appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Under both the Summary Plan Description (“SPD”) and the applicable
ERISA regulations, Reliance was required to render a decision in Dimery’s
administrative appeal within forty-five days, or to provide notice that additional
time was required due to special circumstances before the initial forty-five day
period expired. 29 C.F.R. § 2560.503-1(i)(1)(i), (i)(3)(i). In correspondence with
Dimery, Reliance notified her that it was seeking an independent medical
evaluation, but did not expressly state that it needed additional time beyond the
forty-five day period to render a decision. On the sixty-fourth day, Reliance
affirmed the initial decision terminating Dimery’s long-term disability benefits.
2. Reliance argues for the first time on appeal that the SPD containing the
relevant time limitations is not part of the Plan under CIGNA Corp. v. Amara, 131
S. Ct. 1866, 1877–78 (2011). Because the parties proceeded in district court as
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though the SPD was part of the Plan without objection from Reliance, Reliance has
waived this argument. See Solis v. Matheson, 563 F.3d 425, 437 (9th Cir. 2009).
3. Dimery argues that under Jebian v. Hewlett-Packard Co. Employee Benefits
Org. Income Protection Plan, 349 F.3d 1098, 1105 (9th Cir. 2003), the district
court should have reviewed de novo Reliance’s denial of benefits. This argument
fails for two reasons. First, the denial of Dimery’s benefits was not “necessarily
the mechanical result” of a violation of the terms of the Plan. See id. The Plan did
not state that a particular result would ensue from a failure to adhere to the time
limits for reviewing the denial of benefits. Second, insofar as Dimery relies not on
the Plan but on the requirements of the applicable ERISA regulations, 29 C.F.R.
§ 2560.503-1(i)(1)(i), (i)(3)(i), ERISA procedural violations do not alter the
standard of review unless the violations cause the beneficiary substantive harm.
Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 971 (9th Cir. 2006) (en banc);
Gatti v. Reliance Std. Life Ins., 415 F.3d 978, 985 (9th Cir. 2005) (explaining that
“procedural violations of ERISA do not alter the standard of review unless those
violations are so flagrant as to alter the substantive relationship between the
employer and employee, thereby causing the beneficiary substantive harm”).
Dimery does not identify any substantive harm resulting from Reliance’s untimely
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decision. The district court properly reviewed the denial of Dimery’s benefits
under an abuse of discretion standard.
4. Because Dimery argues only that the district court should have reviewed
Reliance’s denial of her benefits de novo, and does not argue that she should have
prevailed under an abuse of discretion standard, the district court’s judgment is
AFFIRMED.
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