FILED

NOT FOR PUBLICATION

APR 2 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT GABE MCCOOL, No. 18-56529

Plaintiff-Appellant, D.C. No.

2:17-cv-07766-RGK-JEM v. LIFE INSURANCE COMPANY OF MEMORANDUM* NORTH AMERICA; APPLE, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted June 3, 2020

Pasadena, California Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,** District Judge.

Appellant Gabe McCool (McCool) appeals the district court’s judgment in favor of Appellee Life Insurance Company of North America’s (LINA) following

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. a bench trial. We have jurisdiction under 28 U.S.C. § 1291, and review the district court’s factual findings following a bench trial for clear error. See Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075 (9th Cir. 2015). The district court’s interpretation of the Employee Retirement Security Act (ERISA) and conclusions of law are reviewed de novo. See id.

McCool asserts that LINA wrongfully denied his requested disability benefits under his employer’s ERISA benefit plan. In the normal course, a court would review the policy to determine the definition of “sedentary” or suggestion of what definition to follow. However, this policy does not contain a definition. Thus, the district court properly applied the standard from Armani v. Northwestern Mut. Life Ins. Co., 840 F.3d 1159 (9th Cir. 2016), which (1) imposes the burden upon the claimant to prove by a preponderance of the evidence “that he was disabled under the terms of the plan”; and (2) adopts the “consistent” interpretation of “ERISA law” that an individual is unable to perform “any occupation” under a disability policy if that individual “cannot sit for more than four hours in an eight- hour workday.” Id. at 1163 (citation omitted).

The district court did not clearly err in finding that McCool failed to meet his burden of proving by a preponderance of the evidence that he could not sit for four hours a day. Three doctors opined that McCool could sit “frequently.”

2 “Frequently is defined as between 2.5 to 5.5 hours in an 8-hour workday.” The district court found that McCool failed to establish that he cannot sit for four hours a day “despite repeated findings that he can sit frequently.” This finding was not clearly erroneous in light of the record evidence, and was consistent with our analysis in Armani.

AFFIRMED.

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