NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

ROBIN CURRAN,

Plaintiff-Appellant,

 v.

UNITED OF OMAHA LIFE

INSURANCE COMPANY,

Defendant-Appellee.

No. 15-56599

D.C. No. 

3:12-cv-01935-JLS-BLM

MEMORANDUM*

ROBIN CURRAN,

Plaintiff-Appellee,

 v.

UNITED OF OMAHA LIFE

INSURANCE COMPANY,

Defendant-Appellant.

No. 15-56668

D.C. No. 

3:12-cv-01935-JLS-BLM

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding

FILED

SEP 22 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted August 30, 2017

Pasadena, California

Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,

** District

Judge.

 

Robin Curran appeals the district court’s decision affirming United of

Omaha’s denial of disability benefits under the terms of her employee benefits plan

(the Plan), which is governed by the provisions of the Employee Retirement

Income Security Act (ERISA) of 1974, 29 U.S.C. §§ 1001–1461. United crossappeals the district court’s determination that Curran was totally disabled within

the meaning of the Plan. We have jurisdiction under 28 U.S.C. § 1291.

The district court did not clearly err in determining that United had properly

limited disability payments to 24 months under the Plan’s Self-Reported

Symptoms (SRS) limitation, given that the record did not include objective

evidence supporting Curran’s claimed disability. Curran concedes there is no

evidence in the record that her fibromyalgia diagnosis was based on the 18-point

trigger-point test. Nor does the record establish that a fibromyalgia diagnosis was

based on any other objective test. Further, the record does not include any

objective evidence that she suffers from Lyme disease or chronic fatigue

** The Honorable Sarah Evans Barker, United States District Judge for

the Southern District of Indiana, sitting by designation.

2
syndrome. The district court did not abuse its discretion in denying Curran’s postjudgment motion to supplement the record with a letter from Dr. Wightman

because she could have reasonably secured the letter earlier in the litigation. See

Fed. R. Civ. Proc. 59(e); Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003).

Contrary to Curran’s argument, United gave Curran meaningful notification

of its adverse benefit determination, including the “specific reason or reasons for

the adverse determination” and a “[r]eference to the specific plan provisions on

which the determination is based.” 29 C.F.R. § 2560.503-1(g); 29 U.S.C.

§ 1133(1). United’s May 9, 2011 letter, which stated that the SRS limitation was

one of the two “provision(s) in your policy on which the denial of your claim is

based” and provided the full text of that provision, complied with the regulatory

requirements. See § 2560.503-1(g); Booton v. Lockheed Medical Ben. Plan, 110

F.3d 1461, 1463 (9th Cir. 1997).1

United adequately notified Curran of the “additional material or information

necessary . . . to perfect [her] claim.” 29 C.F.R. § 2560.503-1(g)(1)(iii). The initial

1Curran argues that United failed to give her proper notification by not

referencing the SRS limitation in its final letter denying her appeal. Because this

argument was raised for the first time in the reply brief, it is waived. MartinezSerrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996). In any event, it is meritless,

because United adequately explained the basis for its denial of benefits in its May

11, 2011 denial letter and Curran did not challenge the SRS limitation in her

administrative appeal.

3
denial letter provided a detailed, three-page summary of Curran’s medical file and

repeatedly noted the absence of specific objective evidence supporting her claim,

including the lack of the trigger-point test for fibromyalgia. Unlike cases where

insurers denied claims based on conclusory statements that the evidence was

insufficient or that services were not covered, see Saffon v. Wells Fargo & Co.

Long Term Disability Plan, 522 F.3d 863, 870 (9th Cir. 2008); Booton, 110 F.3d at

164 & n.4, United amply identified the evidence required to provide an objective

basis for Curran’s diagnoses.

We do not address whether United was required to plead the SRS limitation

as an affirmative defense or whether it in fact did so. Because the parties briefed

and argued the SRS limitation before the district court, it was tried by implied

consent. See Fed. R. Civ. Proc. 15(b)(2); see also Idaho Plumbers & Pipefitters

Health & Welfare Fund v. United Mech. Contractors, Inc., 875 F.2d 212, 214–15

(9th Cir. 1989).2

AFFIRMED.

2Because we affirm the district court’s holding that United’s denial of

benefits was proper under the SRS limitation, we do not reach United’s crossappeal. See Rincon Band of Luiseno Mission Indians of Rincon Reservation v.

Schwarzenegger, 602 F.3d 1019, 1022 n.1 (9th Cir. 2010). We also deny Curran’s

contested motion for judicial notice, filed March 13, 2017, as it pertains only to

United’s cross-appeal.

4