Cheryl Leslie v. United of Omaha Life Insurance, 662 F. App'x 522

Cheryl Leslie sued under ERISA after United of Omaha denied her long-term disability benefits for fibromyalgia; district court denied relief after trial on the administrative record and Leslie appealed.
United’s plan defines “Totally Disabled” as inability to perform with reasonable continuity the “Substantial and Material Acts” necessary to pursue the claimant’s “Usual Occupation.”
Leslie contended that lifting 40–50 pounds was a substantial and material act of her usual occupation and that fibromyalgia prevented her from performing those duties.
The vocational expert relied on the Dictionary of Occupational Titles and Leslie’s job description (employer listed lifting 40–50 lbs as only “occasional”) to conclude lifting at that level was not generally required or a substantial task for her occupation.
Medical record: Dr. Sue Chung’s Attending Physician Statement (APS) indicated restrictions, but her office notes and other treating physicians’ records did not document lifting, sitting, standing, or walking restrictions and frequently showed no acute distress and full range of motion.
The district court also found (erroneously) that fibromyalgia was a pre-existing condition, but United had not relied on the pre-existing exclusion and the court’s error was deemed harmless because other valid bases supported denial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper definition of “Usual Occupation”	Leslie: plan should treat lifting 40–50 lbs as a substantial/material act of her job	United: plan language and vocational evidence show lifting 40–50 lbs is not a substantial/material act	Court: United used proper “Usual Occupation” definition; lifting at that level was not a substantial/material part of Leslie’s occupation
Total disability from fibromyalgia	Leslie: fibromyalgia disabled her from performing substantial/material duties	United: medical record does not support functional restrictions or total disability	Court: district court’s factual finding that Leslie was not totally disabled was not clearly erroneous
Weight given to treating physician’s APS	Leslie: Dr. Chung’s APS establishes restrictions	United: APS inconsistent with treating notes and other medical records	Court: district court permissibly discounted APS because it conflicted with Dr. Chung’s notes and other records; even if credited, lack of corroborating evidence fails Leslie’s burden
Pre-existing condition exclusion	Leslie: fibromyalgia was not pre-existing	United: (did not rely on pre-existing exclusion); district court concluded it was pre-existing	Court: district court erred in finding pre-existing condition but error was harmless because other independent bases supported denial

Saffon v. Wells Fargo Long Term Disability Plan, 522 F.3d 863 (9th Cir.) (ERISA benefits denial reviewed de novo)
Silver v. Exec. Car Leasing Long-Term Disability Plan, 466 F.3d 727 (9th Cir.) (district court’s factual findings reviewed for clear error)
Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.) (standard for reviewing factual findings)
United States v. Asagba, 77 F.3d 324 (9th Cir.) (clear-error review described as requiring firm conviction of mistake)
Deegan v. Continental Cas. Co., 167 F.3d 502 (9th Cir.) (total disability under ERISA is a factual question reviewed for clear error)
Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869 (9th Cir.) (lack of acute distress can indicate fibromyalgia claimant is not totally disabled)
Muniz v. Amec Constr. Mgmt., Inc., 623 F.3d 1290 (9th Cir.) (claimant bears burden to prove entitlement to benefits at district court)
Weiser v. United States, 959 F.2d 146 (9th Cir.) (appellate court may affirm on any ground supported by the record)