Nicula

MEMORANDUM *

This case arises under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 , et seq., from a challenge brought by plaintiff Rey Nicula seeking disability welfare benefits from defendant First UNUM Life Insurance Company (“UNUM”). The district court concluded that Nicula had presented only a claim for physical, not psychological, disability and entered judgment for UNUM after a de novo review of UNUM’s termination of benefits. We have jurisdiction over Nicula’s appeal from the district court’s judgment pursuant to 28 U.S.C. § 1291 . We affirm.

I.

Psychological Claim

Nicula argues that the district court erred in concluding that his asser *807 tions of a psychological disability were a “litigation construct.” We review a district court’s factual findings for clear error. Kearney v. Standard Ins. Co., 175 F.3d 1084 , 1095 n. 6 (9th Cir.1999). Although UNUM apparently was aware that Nicula suffered from depression, it is undisputed that Nicula did not formally file a claim for disability based on a psychological condition. He claimed disability benefits based only on his physical injury. The references to depression found in the…