NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT JACQUELINE ROEDER,

Plaintiff

- Appellant,

v. GUARDIAN LIFE INS. CO.; PSC BIOTECH CORPORATION PLAN,

Defendants

- Appellees. No. 22

- 56226
D.C. No. 8:21

- cv - 01715

- JVS

- KES

MEMORANDUM *

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding Argued and Submitted January 10, 2024 Pasadena, California Before: RAWLINSON, MELLOY, * * and H.A. THOMAS, Circuit Judges. Jacqueline Roeder appeals the district court’s de novo review of the administrative record regarding Guardian Life Insurance Company’s (Guardian) denial of her application for long

- term disability benefits under a policy governed

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Michael J. Melloy, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. 

# FILED

APR 15 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

by the Employee Retirement Income Security Act of 1974 (ERISA)

. “ We review de novo a district court ’ s choice and application of the standard of review to decisions by fiduciaries in ERISA cases

. . . [and] for clear error the underlying findings of fact. ” Est . of Barton v. ADT Sec. Servs. Pension Plan , 820 F.3d 1060, 1065 (9th Cir. 2016) ; see also Wolf v. Life Ins. Co. of N.A. , 46 F.4th 979, 984 (9th Cir. 2022) (“ De novo review applies to the denial of benefits under an ERISA

governed insurance policy whe re
. . . the policy does not assign the administrator discretionary authority to determine eligibility of benefits or to construe the plan ’ s
terms. ”)

. 1 Finding n either errors of law nor clearly erroneous factual findings , we affirm. PSC Biotech hired Roeder on January 6, 2020

. Her long

- term disability coverage became effective on February 1, 2020

. On April 1, 2020, Roeder stopped working and subsequently filed an application for long

- term disability benefits alleging severe neck pain

. Subsequent medical records demonstrated that Roeder ha s a degenerative cervical spine condition

. The p olicy excluded coverage for a ny disabilit y manifest ing during the first twelve months of employment if th e applicant “suffered from a physical . . . condition, whether diagnosed . . . which caused symptoms within three months

1 The policy at issue here did not assign Guardian discretionary authority , and the district court conducted a de novo review of Guardian’s decision

.3

before the effective date of [the applicant’s ] insurance

. . . for which a prudent person would usually seek medical advice or treatment . . . [and which] caused or substantially contributed to” the disability

. Guardian reviewed Roeder’s medical records , including records fr om the three

- month look

- back period of November 2019 through January 2020 , and denied coverage based primarily on medical notes from a January 2020 urgent care visit

. At that visit , Roeder complained of sinus pain and neck pain and received intravenous antibiotics as well as trigger point injection s and electrical stimulation in her neck

. The district court found that , although Roeder ’ s degenerative cervical spine condition was not diagnosed or suspected during the look

- back period, it caused the symptom of neck pain for which Roeder sought medical treatment

. The district court thus upheld Guardian’s decision to deny Roeder’s long

- term disability benefits

. On appeal, Roeder argues : (1) the medical notes from the January 2020 urgent care visit fail to demonstrate a specific diagnos is; (2) th ose notes are unclear in that her sinus pain and intravenous antibiotics suggest that her neck pain could have been related to an infection ; and (3) t he record as a whole fails to prove that her symptoms i n January 2020 were related to her later

- diagnosed degenerative cervical spine condition

. Roeder emphasizes that no treatment provider indicated that her neck pain was caused by a degenerative cervical spine condition

. H er arguments are unavailing

.4

The exclusion , framed in terms of symptoms for which a prudent person would seek treatment , does not require a diagnosis during the look

- back period

. Further, while the medical notes from the January 2020 urgent care visit were not a model of clarity, the y permit the conclusion that Roeder suffered symptoms and received treatment for tw o separate complaints : antibiotics for a sinus infection and injections and electrical stimulation for neck pain

. Finally, w e find no clear error in the district court’s co nclusion that Roeder’s medical records as a whole showed her symptoms i n January 2020 were caused by the later

- diagnosed degenerative cervical spine condition. See Anderson v. Bessemer City , 470 U.S. 564, 573

– 74 (1985) (“ I f the district court ’ s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder ’ s choice between them cannot be clearly erroneous. ” ). 2
AFFIRMED
.

2 Because we affirm the judgment of the district court based on the policy’s symptom

- based, “prudent person” exclusion provision , we need not address the parties’ extensive arguments as to the policy’s other exclusion provisions.