Opinion
02 CV 5726 (JG).
July 23, 2004
IRA ZUCKERMAN, New York, NY, Attorney for Plaintiff.
IRA A. STURM, Raab, Sturm Goldman, LLP, New York, NY, Attorneys for Defendants.
MEMORANDUM AND ORDER
Plaintiff Sebije Lekperic has filed this action against defendants Building Service 32B-J Health Fund (the "Health Fund"), and Building Service 32B-J Pension Fund (the "Pension Fund") (collectively, the "Funds" or the "defendants") alleging the Funds improperly denied her disability benefits in violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq. The Funds now move for summary judgment. For the reasons set forth below, I grant the Funds' motion for summary judgment.
BACKGROUND
In 1998, plaintiff Sebije Lekperic was employed as an office cleaner. While at work on December 15, 1998, Lekperic injured herself when she lifted a heavy object. Those injuries included a mood disorder as well as neck, shoulder and lower back pain. Due to these injuries, she ceased work on January 8, 1999. Lekperic is now forty-seven years old. Originally from Yugoslavia, Lekperic has a high school education and a husband and two children.
In May of 2000, the Social Security Administration ("SSA") found that Lekperic was disabled within the meaning of the Social Security Act and awarded her a period of disability benefits commencing on December 15, 1998, the date of her injury. The SSA determined that she had sustained an emotional impairment, as well as physical impairments (pain affecting her neck, shoulder, back and knees). Based on these limitations, the SSA found that she could perform less than the full range of sedentary work.
Lekperic then sought disability benefits from her union's disability benefit program: the Health Fund and the Pension Fund. Each is a multi-employer employee benefit fund that is governed by a Declaration of Trust and Benefit Plan (the "Trust Agreement"). A Summary Plan Description ("SPD") sets forth the benefits provided by each Fund. Each Plan is regulated by ERISA, 29 U.S.C. §§ 1002(1)-(2), 1132(d)(1), and is administered by a Board of Trustees (the "Trustees"). The Plans provide its members with disability benefits if they meet the Plans' definitions of disability based on medical evidence. Under the terms of the Plan for the Health Fund, one is "totally disabled" when, "as a result of illness or injury, he is unable to perform work in any capacity." (Geffner Aff. Ex. D.) Under the terms of the Plan for the Pension Fund, one is entitled to receive disability benefits if one has a "total and permanent disability." (Geffner Aff. Ex. F.) One has such a disability where "she is found to be totally and permanently unable, as a result of bodily injury or disease to engage in any further employment or gainful pursuit." (Id.)
In July of 2000, Lekperic applied for those disability benefits. In support of her claim, she submitted two Attending Physician Statements of Disability. One form was completed by Dr. Kosovich, who treated her from January 1999 to July 2000. He wrote that Lekperic suffered from severe pain in the lower back, pain in the right knee, and that she had difficulty walking. Dr. Kosovich also reported that in addition to her physical ailments, she suffered from depression. His final diagnosis was that she was totally disabled due to her mood disorder, which arose from her depression over the accident.
The other form was completed by Dr. S. Aleksic, who treated Lekperic weekly from January 1999 to July in 2000. He wrote that Lekperic's symptoms consisted of neck and shoulder pain and pain in the lower back. He diagnosed her with, among other things, cervical radiculopathy and cervical and lumbar disc herniation. In Dr. Aleksic's opinion, Lekperic was totally disabled on the basis of her physical ailments. He did not mention any mental disorder, however. Lekperic also submitted the SSA determination.
The Funds referred Lekperic for a medical evaluation to Dr. Peter J. Marchisello. After Dr. Marchisello examined Lekperic, he determined that her "disability relating to the injury of December 15, 1998, is mild in magnitude, partial in degree and temporary." (Geffner Aff. ¶ 14; Ex. J.) In his written report, Dr. Marchisello noted Lekperic's complaints of pain in her right shoulder, neck, lower back and both knees. He noted her recent surgeries. He also noted her two CT scans of the spine in 1999, which revealed mild degenerative changes and posterior disc bulging. He found that her shoulders and spine had a normal range of motion and that her neurological functioning was entirely normal. His clinical diagnosis was that she had chronic lumbar strain and chronic knee strain, but that her prognosis was good and she could work.
The Funds also referred Lekperic to Dr. Michelle Rottenstein for a psychiatric evaluation. Following her examination of Lekperic, Dr. Rottenstein reported that Lekperic had "major depression, of mild severity" but that "[s]he is likely to improve with higher doses of [E]ffexor and would probably benefit from psychotherapy." (Geffner Aff. Ex. K.) In her written report, Dr. Rottenstein reported that Lekperic told her that she felt depressed and that she had experienced intermittent insomnia, a decreased libido, impaired memory and concentration, anorexia, hopelessness and helplessness. Dr. Rottenstein found Lekperic to have normal speech and to have a thought process that was goal directed, although she admitted to suicidal thoughts. Dr. Rottenstein concluded that Lekperic was not disabled based on her psychiatric disorder.
After reviewing the submissions of Dr. Marchisello and Dr. Rottensein, as well as the SSA determination, Dr. Norman Kupferstein (the Funds' Medical Advisor) denied Lekperic's claim for disability benefits.
Lekperic, through her attorney, appealed that finding. At the appeals hearing on January 30, 2003, Lekperic's attorney argued several grounds for reversal. For instance, he asserted that the SSA determination was compelling evidence of Lekperic's disability. He also pointed to the brevity of the examinations performed by Dr. Marchisello and Dr. Rottenstein, as evidence that their opinions were unpersuasive. By letter dated February 8, 2002, the Appeals Committee informed Lekperic that it had recommended to the Trustees that her appeal be denied, and they did so. In the decision, the Committee related that the Trustees had made their decision after reviewing the entire record, including reports from Dr. Rottenstein and Dr. Marchisello. The Committee explained that the Trustees rejected Lekperic's claim because "[t]o be considered totally disabled, a person must be unable to engage in any further employment or gainful pursuit" and because her "condition is not so severe as to limit all activity, under the terms of our Plan [she] cannot be considered totally disabled." (Geffner Aff. Ex. O.)
On November 14, 2002, Lekperic filed this complaint to recover total disability benefits under the Funds.
DISCUSSION
A. The Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case identifies the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id.
Moreover, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks omitted). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Id. at 586-87 (quoting Fed.R.Civ.P. 56(e)).
B. The ERISA Standard
An administrator's denial of benefits under an ERISA-governed employee benefit plan is reviewed de novo, unless the plan grants the administrator discretion to determine eligibility for benefits or to construe the terms of the plan.Firestone Tire Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989);Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999). If the administrator has such discretion, her decision will be reviewed under an arbitrary and capricious standard. Id.
The decision of the plan administrator is arbitrary and capricious "only if it was without reason, unsupported by substantial evidence or erroneous as a matter of law." Pulvers v. First UNUM Life Ins. Co., 210 F.3d 89, 92 (2d Cir. 2000) (quoting Pagan v. Nynex Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995)); see also Peterson v. Cont'l Cas. Co., 282 F.3d 112, 117 (2d Cir. 2002) ("It is well established that federal courts have a narrow role in reviewing the discretionary acts of ERISA plan administrators."). "Substantial evidence" is "such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the [decisionmaker and] . . . requires more than a scintilla but less than a preponderance." Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir. 1995) (quotation marks and citation omitted, brackets and ellipses in original). In making this determination, my inquiry is "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Jordan v. Ret. Comm. of Rensselaer Polytechnic Inst., 46 F.3d 1264, 1271 (2d Cir. 1995) (quotation marks and citation omitted). My review is limited to the administrative record. Miller, 72 F.3d at 1071.
It is uncontested that the applicable standard of review here is the arbitrary and capricious standard. The Trust Agreements plainly afford the Trustees discretion to determine whether an applicant for disability benefits meets the standard set forth in the Plans. The Trust Agreement governing the Health Fund gives the Trustees the "power to construe terms and provisions . . . of the Plan and any terms or constructions adopted by the Trustees in good faith shall be binding. . . .". (Geffner Aff. Ex. C.) The Health Plan grants sole discretion to the Trustees in ascertaining disability status: "All determinations as to an applicant's disability are made in the sole and absolute discretion of the Trustees." (Geffner Aff. Ex. D.) The Pension Fund (and its government Trust Agreement) contain similar language.
C. Lekperic's Claim
The Trustees' decision to deny Lekperic her disability benefits was not clearly erroneous or unsupported by the facts. The benefits Lekperic seeks are available only upon a finding of total physical disability — not mere occupational or vocational disability. Moreover, the Funds do not consider a claimant's lack of language skills, education or training in determining disability. It is against this framework that I conduct the arbitrary and capricious analysis.
As related above in detail, Dr. Marchisello performed an orthopedic evaluation of Lekperic in August of 2000. He reviewed her medical file, which included reports of surgeries and medical diagnostics. Based on all of that, he found that her injury was mild in magnitude, and partial in degree and temporary. Although he noted her subjective feelings of pain, he concluded that she could return to work. Dr. Rottenstein, who performed a mental evaluation of Lekperic in October of 2000, found that while Lekperic suffered from depression, it did not totally preclude her from working. Based primarily on these findings, the Trustees concluded that Lekperic could earn gainful employment because she could work in some capacity, thereby precluding her eligibility for pension benefits under the terms of the Plans.
Although Lekperic submitted two forms from treating physicians who found her to be totally disabled based on her December 1998 work-related injury, "the mere existence of conflicting evidence does not render the Trustee's decision arbitrary or capricious."Rosario v. Local 32B-32J, No. Civ. 7557 (JSM), 2001 WL 930234, at *4 (S.D.N.Y. Aug. 16, 2001) (citing Wojciechowski v. Metropolitan Life Ins. Co., 75 F. Supp.2d 256, 262 (S.D.N.Y. 1999), aff'd, 2001 WL 38263 (2d Cir. 2001); Kocsis v. Standard Ins. Co., 142 F. Supp. 2d 241, 252-53 (D. Conn. 2001)); see also McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 169 (6th Cir. 2003) ("Generally, when a plan administrator chooses to rely upon the medical opinion of one doctor over that of another in determining whether a claimant is entitled to ERISA benefits, the plan administrator's decision cannot be said to have been arbitrary and capricious because it would be possible to offer a reasoned explanation, based upon the evidence, for the plan administrator's decision.") (citinge.g., Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 380 (7th Cir. 1994) (upholding a plan administrator's denial of benefits where a psychiatrist found the employee to be "severely depressed," there being insufficient evidence to "support the conclusion that [the plaintiff's] depression, regardless of treatment, would constitute a total disability" and upholding plan administrator's denial of claim where independent medical consultant's opinion was contrary to plaintiff's doctor's opinion); Birdsell v. United Parcel Serv. of Am., 94 F.3d 1130, 1133 (8th Cir. 1996) (holding that a plan administrator's decision to deny benefits was not arbitrary or capricious simply because the plan administrator adopted one of two competing views)). Moreover, ERISA does not require the plan administrator to accord any kind of deference to a treating physician's conclusions. Black Decker Disability Plan v. Nord, 538 U.S. 822, 833-34 (2003). The Plans afforded the Trustees discretion to weigh different medical opinions and to determine, based upon the evidence submitted, whether an applicant is physically able to work. The Trustees exercised their discretion by relying on Dr. Marchisello's and Dr. Rottenstein's conclusions that Lekperic was not totally disabled as that is defined in the Plans. Thus, the decision to deny Lekperic's requested pension benefits was made after proper examination of Lekperic's record.
Although Dr. Kupferstein's report may have been preferable if it were a little more discursive, I find nothing objectionable about it. It is hard to imagine how a rational person in his position would conclude that Lekperic established a disability, given those underlying reports from Dr. Marchisello and Dr. Rottenstein which were straightforward and unequivocal.
Lekperic's arguments to the contrary do not persuade me otherwise. First, she argues that I should deny the motion for summary judgment on the ground that the Funds have failed to furnish a complete medical file to her, or to me. In particular, she asserts that the defendants have not submitted her entire medical record, which includes operative reports, MRI reports and a letter of medical necessity, all of which Lekperic states are essential to her claim. This 268-page file contains her medical records from the past 18 years, documenting the benefits that she received from the Health Fund over the course of her covered employment. This record would not normally be revealed to the Trustees because it is confidential; it would be up to the individual claimant to present those records to the Trustees for their consideration. In other words, these records would only be considered as part of the administrative record if asked by the claimant. Therefore, Lekperic's entire health record is not at issue here because she did not submit it to the Funds. It is worth noting that Lekperic was not precluded from submitting any of these materials, and she was represented by an attorney at her appeals hearing.
Second, Lekperic contends that there are disputed material issues of fact. For instance, she contends that the Funds improperly failed to provide all of her pertinent medical records to Dr. Marchisello for evaluation, in particular, a cervical spine MRI dated March 22, 1999 (which determined that Lekperic has suffered from scoliosis) as well as a lumbosacral spine MRI dated January 22, 1999 (which suggested muscle spasm, scoliosis, and spinal stenosis). In other words, Lekperic claims that the Funds were arbitrary and capricious in not submitting these records to Dr. Marchisello for his review and then relying on Dr. Marchisello's finding of no disability even though his opinion was rendered without the benefit of these records. I reject this claim because those documents were part of Lekperic's 268-page medical file of 18 years that she failed to present to the administrator. Lekperic also criticizes Dr. Marchisello's opinion because it states that her prognosis is "good" and yet lists all of her physical impairments. This argument is not very compelling; those two findings are not mutually exclusive.
Lekperic also tries to create a disputed issue of material fact out of Dr. Curtis Corgan's finding of disability in October of 2002. Dr. Corgan worked at the Health Center and wrote to the union that Lekperic was "found to be disabled due to chronic pain she is experiencing from a December, 1998 Accident." (Geffner Aff. Ex. P.) However, this letter came up after the denial of Lekperic's appeal, so that if she was disabled in October of 2002, that would not impact on whether she met the criteria for disability when she initially filed her application for the disability. In any event, all Dr. Corgan found was that two years after she ceased working, she was disabled. Furthermore, Dr. Corgan's finding related only to Lekperic's ability to receive certain severance payments from her employer; this required only that she not be able to perform the functions of her particular job, not that she be totally and permanently disabled within the meaning of the Funds.
Last, Lekperic points to her award of Social Security disability benefits as evidence that the Trustees were arbitrary and capricious in denying her benefits. Although Lekperic acknowledges that the Trustees are not bound by the SSA determination, she believes that they should, at least, have considered the SSA's finding of disability as it was relevant to their disability determination under the Plans. The Trustees here clearly were not bound to follow in the footsteps of the SSA.See Black Decker, 538 U.S. at 832-34 (holding that courts cannot require ERISA administrators to follow the "treating physician" rule, which is applicable in a Social Security disability determination, because the Social Security Act is its own comprehensive and complicated scheme which is very different from ERISA's statutory scheme). At the same time, Lekperic is right to note that the Trustees cannot arbitrarily refuse to credit a claimant's reliable evidence. See id. at 834 ("Plan administrators, of course, may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician.")
Here, the Trustees reviewed and considered the SSA determination of disability as part of the record that Lekperic submitted to support her claim. That was all they were required to do. The Trustees' refusal to follow the SSA ruling was not arbitrary or capricious in light of the other evidence described above, and also in light of the fact that definitions of "disability" under the Funds is different and much stricter than that under the Social Security Act. As I noted earlier, the Funds pay disability benefits only where the claimant cannot perform work in any capacity, not just in her own occupation or vocation. "This distinguishes the Funds' eligibility requirements from those of Social Security, which awarded Plaintiff disability benefits at least partially because the SS[A] found that Plaintiff was no longer able to work as a cleaner and her skills and background were not transferrable to other activities. The Funds do not, however, include occupational pensions, and it is for this reason that Plaintiff's insistence that we consider her lack of language skills, education, training, etc., is irrelevant and improper." (Geffner Aff. ¶ 25.)
CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is granted. The Clerk of Court is directed to enter judgment for the defendants and to close the case.
So Ordered.