Kelly Demko v. Unum Life Insurance Company of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY DEMKO,
Plaintiff - Appellant,
v.
UNUM LIFE INSURANCE COMPANY
OF AMERICA,
Defendant - Appellee.
No. 18-55428
D.C. No. 2:17-cv-02929-R-AFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted October 15, 2019**
San Diego, California
Before: HURWITZ, OWENS, and LEE, Circuit Judges.
Kelly Demko appeals the district court judgment, entered after a bench trial,
denying her claim for disability benefits under an ERISA-governed plan issued by
Unum Life Insurance Company of America. We have jurisdiction under 28 U.S.C.
* 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).
FILED
OCT 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§ 1291, and review for clear error. See Muniz v. Amec Constr. Mgmt., Inc., 623 F.3d
1290, 1294 (9th Cir. 2010). We affirm.
To prevail on her claim, Demko needed to prove that she was “unable to
perform with reasonable continuity the substantial and material acts necessary to
pursue [her] usual occupation in the usual and customary way” during the coverage
period. See id. The district court did not clearly err in finding that Demko, who was
the head of human resources at Dreamworks, was able to perform her job normally
until she was terminated for non-medical reasons. Demko’s employer presented
evidence that she did not significantly change her hours, job duties, or performance
during the period of claimed disability. Treatment records from Demko’s doctor
showed that her fibromyalgia condition was improving during that period, and her
doctor first opined that she was disabled months after the coverage period ended.
See id. at 1296-98 (district court did not clearly err in denying ERISA claim where
doctor’s opinion was inconsistent with accompanying medical records); Boyd v. Bert
Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1178-79 (9th Cir. 2005)
(upholding denial of ERISA claim where medical evidence could reasonably support
either party).
Demko’s objections to the district court’s evaluation of the evidence are
unavailing. First, although the district court was not required to defer to the opinions
of Demko’s doctor, Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834

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(2003), it nevertheless accorded them the “greatest weight” and did not rely heavily
on the opinions offered by Unum’s doctors. Second, an independent medical
examination was not required, particularly when Demko proffered insufficient
evidence to establish disability. Third, the record does not support Demko’s
contention that, to deny coverage, Unum belatedly raised the circumstances of her
termination and whether she reduced her work schedule. Fourth, the district court
reasonably determined that Demko failed to show that she could not satisfy the
cognitive functions of her job. Fifth, the district court addressed Demko’s ability to
work the required hours, finding that she had not reduced her work schedule. And
finally, the district court duly considered Demko’s subjective complaints, and
reasonably concluded that they did not establish the requisite level of disability.
AFFIRMED.

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