On February 26, 1990, Martin was seen by Dr. Ignatius S. Bertola of the Western New York Orthopedic Group. In a letter written to Dr. O.K. Sarac, Medical Director at the DuPont Niagara Falls Plant, dated February 28, 1990, Dr. Bertola indicated that heart problems had been ruled out, and that it was believed that the pains were musculoskeletal in nature. (Document Response 1, Exhibit 18). Dr. Bertola noted that Martin guarded the motion of her shoulders during examination, not allowing him to rotate the shoulders, and further stated that he had difficulty seeing any muscle problem with her anterior chest wall because of her weight. Dr. Bertola, informed that Martin's job involved heavy lifting of mills weighing approximately 85-90 pounds, and that the pains were exacerbated by the lifting, could not find any causally related disability and recommended that Martin return to work without limitation. (Document Response 1, Exhibit 18).
Martin was referred to the Cleveland Clinic Foundation in Cleveland, Ohio where she was seen on March 13, 1990. (Document Response 1, Exhibit 11; Document Response 2, Exhibit 1). Dr. John J. Brems and Dr. Stephen P. Hayden at the Cleveland Clinic diagnosed her with chronic impingement syndrome and chronic rotator cuff tendinitis, and recommended that she have a significant limitation of her overhead lifting at work of no more than five to ten pounds until the symptoms quieted down. (Document Response 2, Exhibits 1, 3). Martin was also recommended to physical therapy. Martin did not return to work following this assessment, and she was terminated from her employment on March 27, 1990.
On April 10, 1990, Martin was seen by Dr. John C. Newman of Niagara Orthopaedic Associates based on the diagnosis from the Cleveland Clinic. (Document Response 2, Exhibit 4). Dr. Newman recommended an arthrogram of the left shoulder and a decompression of the shoulder to relieve the soreness and friction overlying the rotator cuff. (Document Response 2, Exhibit 4).
On June 5, 1990, Martin was examined by Dr. Eugene J. Hanavan, an orthopedic surgeon, at the behest of Kemper Insurance Group, the workers compensation carrier. In Dr. Hanavan's opinion, Martin suffered from a bursitis condition of the left shoulder causally related to the lifting incident in October, 1988 at DuPont, and suggested that she receive cortisone injections in the shoulder with home therapy. (Document Response 2, Exhibit 5). Dr. Hanavan indicated at that time that Martin was totally disabled. Dr. Hanavan further stated that if these measures did not work, Martin should consider shoulder decompression surgery. (Document Response 2, Exhibit 5).
On September 17, 1990, Dr. Comerford, in a statement sent to DuPont, stated that Martin could not return to her position at DuPont. (Document Response 2, Exhibit 6).
On January 11, 1991, Dr. Comerford cleared Martin for surgery, noting that Martin was suffering from pain and distress in the torn left shoulder rotary cuff and that she had many episodes of anterior chest discomfort which were not cardiac in nature, but rather due to spasm of the coronary arteries. (Document Response 1, Exhibit 13). On May 20, 1991, Martin underwent surgery at Mount St. Mary's Hospital by Dr. John C. Newman for decompression arthroplasty of the left shoulder, release of coraco-acromial ligament, and arthrotomy of the shoulder with biceps tenodesis. (Document Response 1, Exhibit 12).
On May 7, 1991, Martin was awarded disability benefits from the Social Security Administration. (Document Response 2, Exhibit 9). The administrative law judge found that the diagnosis of a torn rotator cuff in her left shoulder, chronic impingement syndrome and rotator cuff tendinitis was not contradicted by substantial evidence, and that Martin's impairments, which had left Martin unable to left and carry more than five to ten pounds without experiencing pain, unable to push or pull heavy weights and left her subject to pain in her left shoulder and chest upon any exertion, restricted her to performing substantially less than the full range of sedentary work. (Document Response 2, Exhibit 9). As such, Martin was given full disability benefits.
On October 28, 1994, Martin filed for total and permanent disability benefits under DuPont's total and permanent disability income plan (the "Plan"). On June 8, 1995, Martin's application for benefits was denied by the Board of Benefits and Pensions on the ground that, at the time of Martin's termination on March 27, 1990, Martin was not totally and permanently disabled as defined in Section II E of the Plan. Martin appealed the Board's determination, furnishing the Board with other medical records, including the records from the Cleveland Clinic, letters written to Dr. Comerford from Dr. Hayden and Dr. Newman, the letter from Dr. Hanavan to the Kemper Insurance Group, and the favorable determination from the Social Security Administration. Nonetheless, on January 5, 1996, the Board denied Martin's appeal. Martin was also informed that her appeal rights under ERISA were completed. This lawsuit followed.
Summary judgment will be granted pursuant to Fed.R.Civ.P. 56 when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Rattner v. Neburn, 930 F.2d 204, 209 (2d Cir. 1991). The party moving for summary judgment bears the burden of establishing the nonexistence of a genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party cannot obtain summary judgment. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985).
The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Rattner, supra, at 209. In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson, supra, at 255; Rattner, supra, at 209.
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . 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 mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, supra, at 247-48. See also Lipton v. The Nature Company, 71 F.3d 464, 469 (2d Cir. 1995). While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), a party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The non-moving party may defeat the summary judgment motion by producing sufficient specific evidence to establish that there is a genuine issue of material fact for trial. Celotex, supra, at 322-23. "Mere conclusory allegations or denials" in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Lipton, supra, at 469.
DuPont has filed a motion for summary judgment on the ground that it is entitled to judgment as a matter of law as the Board's action in determining that Martin was not totally disabled under the terms of DuPont's Plan was not arbitrary and capricious. Martin, while agreeing that the standard of review in a denial of benefits such as the benefits at issue here is whether the Board's actions were arbitrary and capricious, asserts that DuPont is not entitled to summary judgment as the Board's determination was not supported by substantial evidence and was erroneous as a matter of law.
The standard of review in this case is governed by the principles set forth by the Supreme Court in Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 103 L. Ed. 2d 80, 109 S. Ct. 948 (1989). In Firestone, the Court held that "a denial of benefits challenged under [ERISA, 29 U.S.C. § 1132(a)(1)(B)] is to be reviewed under a de novo standard unless the benefit plan gives the administrator . . . discretionary authority to determine eligibility for benefits or to construe the terms of the plan," in which case the court must apply the more deferential arbitrary and capricious standard. Firestone, supra, at 115. In this case, DuPont's Plan clearly grants the Board discretion to make findings and to determine eligibility under the Plan as follows:
An individual shall be considered "totally and permanently disabled" if the Board of Benefits and Pensions finds that he is totally disabled by injuries or disease and presumably will be totally and permanently prevented from pursuing any gainful employment.
DuPont Total and Permanent Disability Plan, Article II, Section E (emphasis added). As such, the court will review the Board's finding based on whether the Board's determination to deny Martin disability benefits under the Plan was arbitrary and capricious.
The arbitrary and capricious standard of review is highly deferential to a plan administrator. The question before a reviewing court under this standard 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. Retirement Committee of Rensselaer Polytechnic Institute, 46 F.3d 1264, 1271 (2d Cir. 1995). "The court may not upset a reasonable interpretation by the administrator." Id. Under this standard, a court "may overturn a decision to deny benefits only if it was 'without reason, unsupported by substantial evidence or erroneous as a matter of law.'" Pagan v. NYNEX Pension Plan, 52 F.3d 438, 442 (quoting Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 45 (3d Cir. 1993)).
In order to receive disability benefits under DuPont's Plan, the Board of Benefits and Pensions must determine that the individual:
is totally disabled by injuries or disease and presumably will be totally and permanently prevented from pursuing any gainful occupation . . . the determination of whether an employee is totally and permanently disabled shall be made on the basis of his condition immediately prior to his termination of service with the Company, and an employee who becomes totally and permanently disabled after termination of service with the Company will not qualify for benefits under this Plan.