Opinion
02 Civ. 7844 (RWS).
June 23, 2003.
Michael Yoeli, Esq., Yoeli Gottlieb, New York, NY, Attorneys for Plaintiff.
Ira A. Sturm, Esq., Raab, Sturm Goldman, New York, NY, Attorneys for Defendant.
OPINION
Defendants Board of Trustees and Building Service 32B-J Pension Fund (the "Fund) (collectively the "Defendants") move for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff Reinaldo Rivera ("Rivera"), in turn, moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Defendants' motion is granted.
Prior Proceedings
This action was commenced on October 1, 2002. The motion was heard and marked fully submitted on June 18, 2003.
The Facts
The facts are set forth based upon the Local Rule 56.1 statements of the parties and supporting declarations and are not in dispute.
Since in or around 1981, Rivera was employed as a building service employee working in a facility covered by a collective bargaining agreement between the employer and Local 32B-32J, Service International Union, AFL-CIO. The agreement provided for periodic employer contributions to the Fund on Rivera's behalf, making him a participating member of the Fund. Rivera last worked on January 25, 2000. He applied to the Fund for a disability pension on May 1, 2000, based on a work-related accident, which occurred on May 6, 1999.
Disability pensions benefits are provided under a pension plan administered by the Fund (the "Plan"). The Plan provides that a "Participant may retire on a Disability Pension if he or she . . . becomes permanently and totally disabled (disability — the inability to work in any capacity) . . ." (Plan, § 4.09 at 31.) The Plan defines "Total and Permanent Disability" as follows:
A Participant shall be deemed totally and permanently disabled if on the basis of medical evidence satisfactory to the Trustees, he or 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. The Trustees shall determine total and permanent disability and the entitlement to a Disability Pension based upon information submitted.
(Plan, § 4.11 at 31.) The Plan is governed by ERISA and gives the Trustees the discretion to determine its "application and interpretation." (Plan, § 7.07 at 45-46.)
Attached to Rivera's application was a medical report, dated January 3, 2000, from his physician, Dr. Nihad Owaid, who diagnosed him with "[r]ight lubosacral spine radiculopathy, secondary to herniated disc at levels L3-L4." The report concluded, "The injury is chronic and permanent. . . . Patient is able to resume work on light duties on 7/27/99 for three (3) to four (4) months until his next evaluation. He is restricted from and [sic] heavy lifting, stressful pushing and/or pulling and repetitive bending." Then, in March 31, 2000, Dr. Owaid's Attending Physician's Statement of Disability stated, "This patient at this time is totally disabled and unable to work; he can not lift more than 10 lbs or stand for more than 30 min."
Dr. Norman Kupferstein, the medical director of the Fund, referred Rivera for an independent medical evaluation by Dr. Michael Rubin, a physician affiliated with Cornell University, New York Presbyterian Hospital. Dr. Rubin is a private physician to whom the Fund periodically refers disability applicants. He is not an employee of the Fund and is paid a flat fee for the examination. Dr. Rubin reported to the Fund:
On examination [Rivera] looks perfectly well. Mental status intact. Cranial nerves unremarkable. Motor tone, bulk and strength normal. Reflexes are symmetrical and equal. . . . this patient is not totally disabled. Annual review is not necessary. He may return to work.
Rivera's application for a disability pension was subsequently denied.
By letter, dated September 14, 2001, Rivera appealed this denial. In support of his application, Rivera submitted additional documents, including a Hearing Decision from the Social Security Administration. The decision acknowledged that Rivera suffers from "a `severe' back impairment with strain, bulging discs, radicular pain; a `severe' right leg and foot impairment; and a `severe' mental impairment with a major depression"; it further characterized Rivera as "a fifty-one year old man with an eight [sic] grade education, . . . but inability to communicate adequately [sic] the English language." The Social Security Administration concluded, "the claimant retains the residual functional capacity for a limited range of simple, slow [sic] stress, sedentary work activity, without prolong [sic] standing, walking, or sitting." Recognizing that "the claimant's physical and emotional conditions may improve with time and treatment," it recommended that "periodic review be conducted in the future."
On December 12, 2001, Rivera's appeal was heard by the Appeals Committee. Rivera requested a psychiatric review, and Dr. Kupferstein referred him for evaluation to Dr. Michelle Rottenstein, a private physician affiliated with Albert Einstein College of Medicine, Melrose In-Track Clinic, Bronx, New York. Dr. Rottenstein is a private physician to whom the Fund periodically refers disability applicants. She is not an employee of the Fund and is paid a flat fee for the examination. Dr. Rottenstein reported the following:
In summary, Mr. Rivera is a 51-year old man with major depression of mild severity. The etiology of his hallucinations is unclear, all full organic work-up is indicated if not previously performed. He is not currently totally disabled on a psychiatric basis and his depression is likely to respond to an increased dose of his antidepressant medication.
On March 5, 2002, Rivera received a letter from the Fund informing him that his appeal was denied. The letter stated:
The Plan's rules governing total disability are clear. To be considered totally disabled, a person must be unable to engage in any further employment or gainful pursuit. Because your condition is not so severe as to limit all activity, under the terms of our Plan you cannot be considered totally disabled.The Summary Judgment Standard
Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see generally 6 James Wm. Moore, et al., Moore's Federal Practice ¶ 56.15 (2d ed. 1983). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The moving party has the burden of showing that there are no material facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the nonmovant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997)
The ERISA Standard
As both parties agree, the Fund's decision must be reviewed under the "arbitrary and capricious" standard. (Rivera's Opp. Mem. at 4; Rivera's Mem. at 3.) This is the case since the Plan provides the Trustees with full discretion to determine disability benefits. (Plan, § 4.11 at 31 ("The Trustees shall be the sole and final judges of total and permanent disability and of the entitlement to a Disability Pension hereunder."); Plan, § 7.07 at 45-46 ("The Trustees shall . . . judge of the standard of proof required in any case and the application and interpretation of this Plan, and the decisions of the Trustees shall be final and binding on all parties.) .) As previously held, "Where the written benefit plan documents confer upon a plan administrator or fiduciary the discretionary authority to determine eligibility for plan benefits, any decision made by the administrator or fiduciary with respect to plan benefits should not be upset by a court unless the decision is arbitrary and capricious." Sekoulovic v. Bldg. Serv. 32B-J Health Fund, No. 99 Civ. 10231, 2001 U.S.Dist. LEXIS 8042, at *10-11 (S.D.N.Y. June 18, 2001) (citing O'Shea v. First Manhattan Co. Thrift Plan Trust, 55 F.3d 109, 112 (2d Cir. 1995); Murphy v. IBM Corp., 23 F.3d 719, 721 (2d Cir. 1994)).
Furthermore, the Pension Fund's Agreement and Declaration of Trust provides, in pertinent part:
Fifth: In the event that any disputed matter shall arise under the Plan, the decision of the Trustees upon such matter shall be binding and conclusive upon all parties and persons. However, an appeal procedure shall be established by the Trustee.
Sixth: In the administration of the Trust, the Trustees are authorized and empowered in their sole and absolute discretion . . .
A decision is "arbitrary and capricious" "only if it [is] without reason, unsupported by substantial evidence or erroneous as a matter of law." Sekoulovic, 2001 U.S.Dist. LEXIS 8042, at *11 (quoting Pulvers v. First Unum Life Ins. Co., 210 F.3d 89, 92 (2d Cir. 2000) and citing Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995)). "Substantial evidence in turn `is such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the [the decision maker and] . . . requires more than a scintilla but less than a preponderance.'" Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir. 1995) (quoting Sandoval v. Aetna Life Cas. Ins. Co., 967 F.2d 377, 382 (10th Cir. 1992)).
Defendants' Decision to Deny Benefits was Not Arbitrary and Capricious
Defendants' decision to deny Rivera benefits is thus reviewed with a strong measure of deference, Miller, 72 F.3d at 1070, and the court cannot substitute its judgment for the Trustees,Morse v. Stanley, 732 F.2d 1139, 1145 (2d Cir. 1984). As inPesa v. Bldg. Serv. 32B-J Health Fund, No. 97 Civ. 6816, slip op. at 15 (E.D.N.Y. May 7, 1999), "The manner by which the Fund made its decision, and processed a subsequent appeal, which allowed [Rivera] to attach additional documentation, . . . demonstrates that Fund's decision was not arbitrary and capricious."
Defendants' decision is supported by substantial evidence, following from Dr. Rubin's report, Dr. Rottenstein's report, and Dr. Owaid's initial prognosis report. Dr. Rubin not only found that Rivera was not disabled, but also that he was fit to "return to work." At his appeal hearing, Rivera raised the existence of a psychiatric disability as a basis for entitlement for benefits and he was given a psychiatric evaluation by Dr. Rottenstein. Dr. Rottenstein concluded that Rivera is "not currently totally disabled on a psychiatric basis and his depression is likely to respond to an increased dose of his antidepressant medication." In his initial January 3, 2000 report, Dr. Owaid declared that Rivera "is able to resume work on light duties," restricting him only from "heavy lifting, stressful pushing and/or pulling and repetitive bending." It was not until three months later that Dr. Owaid diagnosed Rivera as totally disabled and unable to work." Under the circumstances, it was entirely reasonable for Defendants to request Dr. Rubin's independent report.
Defendants put aside the question of whether Rivera's psychiatric illness commenced while he worked in covered employment. The terms of the Plan require that "the disability commence while the Participant worked in Covered Employment." (Plan, § 4.09 at 31.).
Defendants' decision is further consistent with the findings of the Workers' Compensation Board and the Social Security Administration. The Workers' Compensation Board classified Rivera as permanently partially disabled. The Social Security Administration did not find Rivera to be totally and permanently disabled. Rather it held that "the evidence supports the conclusion that the claimant can perform the demands of no more than sedentary work activity." It repeatedly highlighted Rivera's "residual functional capacity for a limited range of sedentary work activity" and noted that as "conditions may improve with time and treatment," "periodic reviews" should be conducted in the future.
Furthermore, as Rivera concedes, Defendants are not bound by Rivera's Social Security determination. (Rivera's Opp. Mem. at 5.) Different factors go into a Social Security determination.Pesa, slip op. at 14 ("One system was created by Congress, funded by payroll deductions from almost every working American, and administered through a complex regulatory code. In contrast, this ERISA fund is guided by an agreement between a group of employers and a labor union, and funded mainly by negotiated labor contributions."). Here, the Social Security Administration did not limit its consideration solely to Rivera's physical impairments, resulting from his injury, but also based its decision on Rivera's age, limited education, and inability to communicate effectively in English.
Rivera argues that Defendants ignored the Plan's definition of disability and that their decision was arbitrary and capricious because it rendered a key provision of the plan superfluous. Section 4.09 of the Plan defines disability as "the inability to work in any capacity," and Section 4.11 defines "Total and Permanent Disability" as the inability "to engage in any further employment or gainful pursuit." (Plan at 31.) In their August 7, 2000 letter to Rivera, the Fund notified him that they employed the following definition for disability: "as a result of illness or injury, you are unable to perform work in any capacity." This statement tracks the language in § 4.09 of the Plan.
Defendants' May 5, 2002 letter to Rivera explains:
To be considered totally disabled, a person must be unable to engage in any further employment or gainful pursuit. Because your condition is not so severe as to limit all activity, under the terms of our Plan you cannot be considered totally disabled.
The first sentence accurately tracks the language of § 4.11 of the Plan. It would be nonsensical to conclude from the second sentence that Defendants' interpreted "total disability" as requiring a participant to be completely comatose and unable to engage in any activity. If Rivera would be disqualified by showing any signs of movement, there would be no need to pay for independent physicians to examine him or to consider their findings, along with the Social Security Administration decision, the Workers' Compensation Board Stipulation, the MRI Scan, and the EMG Study. (October 16, 2001 Kupferstein Memo to the Appeals Committee.) Rather, Defendants concluded that Rivera was still capable of occupational, work-related activity.
The instant case is very different from Helms v. Monsanto Co., Inc., 728 F.2d 1416, 1419 (11th Cir. 1984), where the arbitrator applied a definition of "permanent total disability" that was "inconsistent with conscious human life." The court rejected this standard as it would render the disability proceedings "totally meaningless." Id. at 1420. The court explained,
The arbitrator testified, "I really couldn't think of any disability compatible with conscious life that would allow me to say anybody was `disabled within the definition set out above,' so I had to sign . . ., `Not disabled within the definition.'"Id.
[T]he term `total disability' does not mean absolute helplessness on the part of the insured. The insured can recover benefits if he is unable to perform all the substantial and material acts necessary to the prosecution of some gainful business or occupation. . . . [T]he remuneration must be something reasonably substantial rather than a mere nominal profit.Id. Defendants' decision in the present case does not violate this standard. As Rivera himself admits, the Fund is not required "to identify a particular position that is available for which plaintiff is not disabled under the Social Security regulatory code." (Rivera's Reply Mem. at 4.) Defendants could reasonably conclude from the record that Rivera's physical impairments would not prohibit him from engaging in any employment that is not token or trivial.
Furthermore, the Peterson and Mossa cases cited by Rivera are inapplicable here. The plan in the Peterson case does not define "total disability" as the inability to work in any capacity, as in the present Plan, but rather as being "continuously unable to perform the substantial and material duties of [y]our regular occupation." Peterson v. Cont'l Cas. Co., 116 F. Supp.2d 532, 535 (S.D.N.Y. 2000) (vacated on other grounds, 282 F.3d 112 (2d Cir. 2002)). Thus, unlike here, the definition is tied to the claimant's prior occupation. In Mossa v. Provident Life and Casualty Ins. Co., 36 F. Supp.2d 524, 527 (E.D.N.Y. 1999), the relevant insurance policy language defining "total disability" is "you are not able to engage in any gainful occupation in which you might reasonably be expected to engage because of education, training, or experience." This wording, unlike in the instant case, explicitly requires taking the claimant's education, training, and experience into account when deciding on awarding benefits.
Conclusion
For the reasons set forth, Defendants' motion for summary judgment is granted, and the complaint is dismissed.
Enter judgment on notice.
It is so ordered.