United States District Court, S.D. New York
September 29, 2004.
VICTOR NERYS, Plaintiff,
BUILDING SERVICE 32B-J HEALTH FUND, ET AL., Defendants.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
MEMORANDUM AND ORDER
Plaintiff Victor Nerys ("Nerys") alleges that defendants
Building Service 32B-J Health Fund and the Trustees of Building
Service 32B-J Health Fund (collectively "defendants"), improperly
denied him disability benefits in violation of the Employee
Retirement Income Security Act of 1974 ("ERISA"). See
29 U.S.C. § 1001, et seq. The defendants have moved for summary
judgment, pursuant to Rule 56 of the Federal Rules of Civil
Procedure, contending that there is no genuine issue as to any
material fact and that they are entitled to judgment as a matter
of law. The plaintiff opposes the motion. For the reasons set
forth below, the defendants' motion is denied.
From June 1974 through January 1993, Nerys worked in the
building service industry as a superintendent. During the period
of his employment, Nerys was a member of the Service Employees
International Union, Local 32B-J ("Union") and a participant in
the Union's Health and Pension Funds (collectively "the Funds"). On January 17,
1993, Nerys slipped on a wet bathroom floor and fell. As a result
of the fall, Nerys sustained injuries to his left knee.
In 1994, Nerys applied to the state of New York Workers'
Compensation Board ("WCB") for workers' compensation benefits. A
medical report prepared in connection with plaintiff's
application stated that plaintiff's condition, as a result of the
January 1993 injury to his knee, was permanent and equal to a
schedule loss of use of seven and one-half percent of the left
leg. The WCB concluded that plaintiff had a permanent partial
disability and awarded him compensation benefits on that basis.
In addition, on June 7, 1996, an administrative law judge of the
Social Security Administration ("SSA") determined that,
commencing on January 17, 1993, plaintiff was disabled within the
meaning of the Social Security Act and was entitled to disability
Thereafter, in June 1996, Nerys applied to the Funds for
benefits due to a disability.*fn1 Nerys contended that the
injuries he sustained on January 17, 1993, had resulted in
physical disabilities that prevented him from being able to
engage in any occupation.
The Union's Health Fund, a benefit fund established pursuant to
the Taft-Hartley Act, 29 U.S.C. § 186, is jointly administered by
an equal number of management and Union Trustees and is governed
by an Agreement and Declaration of Trust, also administered by
the Trustees. The Summary Plan Description of the Health Fund
("Health Plan") sets forth the benefits it provides. These
include long-term disability benefits in the form of monthly cash
payments to those who become "totally disabled." The Health Plan
defines "total disability" to mean that "as a result of illness or injury [an employee] is unable to perform
work in any capacity, commencing on the date the disability was
incurred and provided the Employee was eligible under the Plan
rules on the date the disability was incurred."
The Health Fund requires medical proof of a long-term
disability from a qualified physician. In addition, Health Fund
Trustees are authorized to require an applicant for disability
benefits to undergo an independent medical examination performed
by a qualified physician other than the applicant's own
physician. Furthermore, under the terms of the Health Plan,
"[a]ll determinations as to an applicant's disability are made in
the sole and absolute discretion of the Trustees."
The Pension Fund also is governed by an Agreement and
Declaration of Trust that is administered by an equal number of
management and Union Trustees. According to the Summary Plan
Description of the Pension Fund ("Pension Plan"), participants
are eligible for disability benefits in the form of monthly cash
payments if they are determined to be "totally and permanently
disabled." A participant is deemed to have a total and permanent
disability 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." As in the case of a
participant in the Health Fund, a participant applying for a
disability pension may be required to submit to an examination by
a physician selected by Pension Fund Trustees. Furthermore, under
the terms of the Pension Plan, "[t]he Trustees shall determine
total and permanent disability and of the entitlement to a
Disability Pension hereunder based upon information submitted."
The plaintiff's application to the Funds for disability
benefits was accompanied by a medical report, dated June 16, 1996, and prepared by plaintiff's
orthopedist, Dr. Gustavo Rodriguez. Dr. Rodriguez diagnosed a
medial meniscus tear in Nerys' left knee which caused him to
experience persistent pain and tenderness. According to Dr.
Rodriguez, the plaintiff was totally disabled for any occupation,
including his regular occupation of building superintendent.
In accordance with the Funds' usual procedure, Nerys also was
referred to a physician in private practice, Dr. Stephen C.
Allen, for an independent physical examination. On July 24, 1996,
Dr. Allen examined the plaintiff and prepared a medical report.
Dr. Allen found that Nerys could stand for one half hour, sit for
less than five to ten minutes, walk less than six or seven blocks
most days and was unable to carry a grocery shopping bag. Dr.
Allen concluded that Nerys had a "relative disability to labor,"
but that he "should be able to do a sedentary job." Dr. Allen
stated, however, that he preferred to review x-rays of the
plaintiff before completing his evaluation.
On August 5, 1996, the Funds denied Nerys' application for
disability benefits on the ground that Nerys did not qualify
under the relevant standard of permanent disability, that is,
"the inability to work in any capacity." The letter of denial
also informed Nerys of his right to appeal the decision and
described the procedure for filing such an appeal. Nerys' appeal
from the decision to deny him disability benefits was submitted
on June 20, 2001. A hearing was held before the Trustees Appeals
Committee ("Appeals Committee") on March 27, 2002. On that
occasion, plaintiff brought to the attention of the Appeals
Committee medical evidence that, he contends, demonstrated that
his injury had left him totally and permanently disabled.
The medical evidence submitted in support of plaintiff's appeal
included: (1) the medical reports, described earlier, prepared by
Drs. Rodriguez and Allen; (2) the medical report prepared for the WCB at the time Nerys applied for workers' compensation
benefits; and (3) the decision of the SSA finding that Nerys was
entitled to a period of disability and disability insurance
In addition, plaintiff submitted a medical report prepared by
Dr. Joseph Carfi on September 14, 1995. Dr. Carfi had concluded,
based on an examination of Nerys, that he was unable to be
substantially gainfully employed because of his inability to
maintain any position or activity for any period of time without
significant pain. Additionally, Dr. Carfi had found that Nerys'
total disability was permanent. Also included among plaintiff's
submissions was a letter addressed to Dr. Allen, dated July 29,
1996, and prepared by Dr. Richard H. Hamilton and Dr. Peter A.
Kosovsky. Drs. Hamilton and Kosovsky stated, inter alia, that
an examination of plaintiff's knees showed that they were
normally and symmetrically developed and that the left knee was
unremarkable. Nerys also submitted a medical report prepared by
Dr. Bennett Futterman on May 24, 2001. Dr. Futterman, an
orthopedist, reported, inter alia, that Nerys was temporarily
totally disabled from carrying, lifting or bending, and that his
prognosis was guarded. The medical progress notes of plaintiff's
physician, Dr. Mohammed Chowdhry, from January 1990 through
January 2001, along with reports of various tests prepared for
Dr. Chowdhry, also were included among plaintiff's submissions.
Following the March 2002 hearing, the Appeals Committee
determined to postpone its decision concerning Nerys' application
pending a second independent medical evaluation. Consequently, on
August 22, 2002, plaintiff was examined by Dr. Peter Marchisello,
a physician specializing in orthopedic medicine. In an August 30,
2002 letter to the Funds, Dr. Marchisello stated that the
plaintiff had a structural and permanent disability that was
moderate to severe in magnitude and partial in degree. Dr. Marchisello noted
plaintiff's medical history, which included surgery on both
knees, and reported that plaintiff was on medication for diabetes
and hypertension. Dr. Marchisello noted that, following his
injury in 1993, plaintiff was operated on for an internal
derangement and meniscal tear. He noted that the plaintiff had
not worked since 1993. On the basis of his physical examination
of the plaintiff, Dr. Marchisello concluded that plaintiff's gait
was normal, his overall posture was good, there was no evidence
of malalignment of the lower extremities and no evidence of any
gross deformities. Dr. Marchisello noted that plaintiff's
shoulders and spine had a normal range of motion and that a
neurological examination revealed a persistent absence of the
left ankle jerk, but otherwise no pathological reflexes. Dr.
Marchisello stated that his prognosis with respect to the
plaintiff's orthopedic problem was guarded. Dr. Marchisello
indicated that, in his opinion, the plaintiff was not disabled.
On October 3, 2002, Dr. Norman Kupferstein, the Funds' medical
advisor, submitted a memorandum to the Appeals Committee in which
he stated his opinion that, based on a review of the information
contained in Nerys' file, including Dr. Marchisello's report,
Nerys was not totally disabled when he last worked. Therefore,
Dr. Kupferstein recommended that the denial of Nerys' application
for disability benefits be affirmed.
Nerys' appeal was denied by the Appeals Committee on November
27, 2002. Thereafter, Nerys commenced this action to recover
Summary Judgment Standard of Review
Summary judgment may be granted in favor of the moving party
"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." See Fed.R. Civ. P. 56(c); see also D'Amico v. City
of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied,
524 U.S. 911, 118 S. Ct. 2075 (1998). When considering a motion for
summary judgment, "[t]he court must view the evidence in the
light most favorable to the party against whom summary judgment
is sought and must draw all reasonable inferences in his favor."
L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d
Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 ).
The moving party bears the burden of demonstrating that no
genuine issue of material fact exists. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). Once
the moving party has satisfied its burden, the non-moving party
must come forward with "specific facts showing that there is a
genuine issue for trial." Fed.R. Civ. P. 56(e); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511
In order to defeat a motion for summary judgment, the
non-moving party cannot rely merely upon the allegations
contained in the pleadings and "must do more than simply show
that there is some metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586 n. 11, 106 S. Ct. at 1355 n. 11.
"[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment." Anderson, 477 U.S. at 247-48,
106 S. Ct. at 2510. Instead, the non-moving party must offer "concrete
evidence from which a reasonable juror could return a verdict in
his favor." Id., at 256, 2514. Summary judgment should only be
granted if no rational jury could find in favor of the non-moving
party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721
(2d Cir. 1994). ERISA Standard of Review
When a decision is made to deny benefits to a participant in an
employee benefits plan covered by ERISA, and the plan participant
challenges that decision, a court must review the denial of
benefits "under a de novo standard unless the benefit plan
gives the administrator or fiduciary discretionary authority to
determine eligibility for benefits or to construe the terms of
the plan." Firestone Tire and Rubber Co. v. Bruch,
489 U.S. 101, 115, 109 S. Ct. 948, 956-57 (1989). When such discretionary
authority is conferred upon a plan administrator or fiduciary,
any decision concerning a participant's eligibility for benefits
will not be disturbed by a court unless the decision is arbitrary
and capricious. See Kinstler v. First Reliance Standard Life
Ins. Co., 181 F.3d 243, 249 (2d Cir. 1999); Murphy v.
International Business Machines Corp., 23 F.3d 719, 721 (2d Cir.
1994). A decision made by a plan administrator or fiduciary 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]). "Substantial evidence in turn is such
evidence that a reasonable mind might accept as adequate to
support the conclusion reached by the [decision maker and] . . .
requires more than a scintilla but less than a preponderance."
Rivera v. Board of Trustees, Building Service 32B-J Pension
Fund, No. 02 Civ. 7844, 2003 WL 21710763, at *3 (S.D.N.Y. July
23, 2003) (quoting Miller v. United Welfare Fund, 72 F.3d 1066,
1072 [2d Cir. 1995]) (internal quotations omitted).
In the instant case, it is undisputed that the Trust Agreements
governing the Funds give the Trustees discretion to determine
whether an applicant for disability benefits meets the standards
set forth in the relevant plans. Thus, the Trust Agreement
governing the Health Fund provides: "The Trustees have the power to construe the terms and
provisions of this Agreement and Declaration of Trust or of the
Plan and any terms or constructions adopted by the Trustees in
good faith shall be binding upon the Union and all contributing
Employers." Additionally, the Health Plan provides: "All
determinations as to an applicant's disability are made in the
sole and absolute discretion of the Trustees."
In like manner, the Trust Agreement governing the Pension Fund
states: "In the administration of Trust, the Trustees are
authorized and empowered, in their sole and absolute discretion
. . . to establish such procedures, rules and regulations . . as
shall be necessary to carry out the operation of the Plan and
effectuate the purposes thereof." Furthermore, the Pension Plan
grants the Trustees the sole right to judge the standard of proof
necessary for receipt of a disability pension: "The Trustees
shall, subject to the requirements of the law, judge of the
standard of proof required in any case and the application and
interpretation of this Plan, and decisions of the Trustees shall
be final and binding on all parties."
The Court finds, based on the express language in the Trust
Agreements, the Health Plan and the Pension Plan, that the Funds'
Trustees have been given discretionary authority to determine
eligibility for disability benefits under the Funds. Therefore,
in reviewing the Trustees' denial of Nerys' application for
disability benefits, the Court must apply the arbitrary and
The plaintiff contends that a conflict of interest exists on
the part of the Funds' Trustees which warrants de novo review
of the Trustees' denial of his application for disability
benefits. Specifically, the plaintiff argues that a conflict of
interest arises because: (i) the relevant benefit plans are
funded by employer contributions; and (ii) half of the Trustees
are appointed by management. Therefore, the plaintiff maintains, the Trustees have
an interest in denying claims for benefits because any denial of
benefits results in fewer management contributions.
Plaintiff's contention lacks merit. De novo review is not
warranted unless the plaintiff demonstrates that the alleged
conflict of interest actually influenced the Trustees' decision
in this case. See Pulvers, 210 F.3d at 92. The plaintiff has
made no such showing. Consequently, the fact that the benefit
plans are funded by employer contributions and that half of the
Trustees are appointed by management is merely a factor to be
weighed in determining whether there has been an abuse of
discretion. In the absence of evidence of actual influence, the
alleged conflict of interest, even assuming it exists, would not
be sufficient to establish a need for de novo review.
Therefore, the appropriate level of review in this case is the
arbitrary and capricious standard. See id.
Evaluation of the Trustees' Determination Under the Arbitrary
and Capricious Standard
1. The Requirement of Substantial Evidence
The defendants contend that the decision of the Trustees to
deny Nerys' application for disability benefits was reasonable
and based on substantial evidence and that, therefore, they are
entitled to summary judgment. The plaintiff disagrees, arguing
that the evidence "overwhelmingly supported [Nerys'] claim that
he is permanently and totally disabled and hence entitled to
In connection with Nerys' application for disability benefits,
the Trustees were provided with medical reports from the
plaintiff's orthopedist, Dr. Rodriguez, as well as an independent
physician, Dr. Allen. Dr. Allen had personally conducted a
physical examination of Nerys, reviewed his medical history, and
performed various range-of-motion tests. In addition, Dr. Allen obtained the medical report of Drs. Hamilton and Kosovsky
who found that Nerys' knees were normally and symmetrically
developed and that his left knee was "unremarkable."
Subsequently, Dr. Allen determined that Nerys had a "relative
disability to labor" but "should be able to do a sedentary job."
Based on Dr. Allen's report, the Trustees decided that Nerys was
able to work in some capacity and, therefore, was not eligible
for disability benefits under the Funds.
Although the plaintiff's treating physician, Dr. Rodriguez, had
found Nerys to be totally disabled for any occupation, it cannot
be said that the decision of the Trustees to base their
determination on Dr. Allen's finding that plaintiff was not
totally disabled was an abuse of discretion. "[T]he mere
existence of conflicting evidence does not render the Trustees'
decision arbitrary or capricious." Rosario v. Local 32B-32J,
No. 00 Civ. 7557, 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]); see also Lekperic v. Building Service 32B-J
Health Fund, No. 02 CV 5726, 2004 WL 1638170, at *4 (E.D.N.Y.
July 23, 2004). Moreover, the Trustees were not required to
accord deference to the conclusions of plaintiff's treating
physician. See Black & Decker Disability Plan v. Nord,
538 U.S. 822, 833-34, 123 S. Ct. 1965, 1972 (2003).
Following Nerys' appeal of the denial of his application for
disability benefits, the Appeals Committee reviewed reports from
numerous physicians, as well as the findings of the WCB and the
SSA. Additionally, a hearing was held at which plaintiff was
represented by an attorney who argued in favor of a finding of
total and permanent disability. Thereafter, the Appeals Committee
sought a second independent medical evaluation. As discussed
earlier, Dr. Marchisello performed an orthopedic evaluation of Nerys in August
2002. Dr. Marchisello, after reviewing plaintiff's medical
history and performing a physical examination, concluded that
plaintiff was not disabled.
Among the materials submitted in support of plaintiff's appeal
were reports from physicians, including Drs. Rodriguez and Cardi,
who found him to be totally disabled for any occupation based on
his on-the-job knee injury. However, as noted above, the Trustees
were entitled to rely upon the findings of Drs. Allen and
Marchisello, among others, in determining that plaintiff did not
meet the eligibility standard for a total and permanent
disability as set forth in the Funds' benefit plans. Thus, the
decision of the Trustees to deny Nerys' appeal from the decision
to deny him disability benefits does not appear to have been
unsupported by the medical evidence presented in this case.
Furthermore, the plaintiff's reliance upon the determination
made by the SSA concerning his entitlement to disability benefits
under the Social Security Act is misplaced. The plaintiff
contends that the Trustees' denial of his disability application
was an abuse of discretion because the SSA, applying different
criteria from the criteria applied by the Trustees, determined to
award him social security disability benefits under the Social
The Trustees were not bound by the determination reached by the
SSA concerning the award of disability benefits under the Social
Security Act. See, e.g., Lekperic, 2004 WL 1638170, at *6
(citing Black & Decker, 538 U.S. at 832-34,
123 S. Ct. at 1971-72). In this case, the Trustees reviewed and considered the
SSA's finding of disability as part of the record submitted by
Nerys in support of his application and determined that
notwithstanding the finding of the SSA, Nerys was not eligible
for disability benefits under the Funds. Since the determination reached by the SSA is not binding upon the Trustees
in determining Nerys' eligibility for disability benefits, it
cannot be said that the Trustees' decision not to follow the SSA
ruling was arbitrary or capricious, given the other medical
evidence presented by the plaintiff and reviewed by the Trustees
and the different criteria involved in determining eligibility
for disability benefits.
2. Notice Requirements
The plaintiff contends, however, that the Trustees' decision to
deny him benefits failed to conform to the technical requirements
established by the regulations promulgated under ERISA. For this
reason, the plaintiff maintains, the Trustees' denial of his
application for benefits was arbitrary and capricious. The
defendants dispute this claim. They argue that both the August 5,
1996 letter notifying Nerys of the denial of his application for
benefits and the November 27, 2002 denial of Nerys' appeal were
in compliance with the pertinent regulations.*fn2
ERISA provides that every employee benefit plan shall:
(1) provide adequate notice in writing to any
participant or beneficiary whose claim for benefits
under the plan has been denied, setting forth the
specific reasons for such denial, written in a manner
calculated to be understood by the participant, and
(2) afford a reasonable opportunity to any
participant whose claim for benefits has been denied
for full and fair review by the appropriate named
fiduciary of the decision denying the claim.
29 U.S.C. § 1133. The applicable regulations further require,
in relevant part:
The notification shall set forth, in a manner
calculated to be understood by the claimant
(i) The specific reason or reasons for the adverse
(ii) Reference to the specific plan provisions on
which the determination is based;
(iii) A description of any additional material or
information necessary for the claimant to perfect the
claim and an explanation of why such material or
information is necessary; [and]
(iv) A description of the plan's review procedures
. . . including a statement of the claimant's right
to bring a civil action . . . following an adverse
benefit determination on review.
29 C.F.R. § 2560.503-1(g). The purpose of the notice
requirements is "to provide claimants with enough information to
prepare adequately for further administrative review or an appeal
to the federal courts." Juliano v. Health Maintenance
Organization of New Jersey, Inc., 221 F.3d 279
, 287 (2d Cir.
2000) (quoting DuMond v. Centex Corp., 172 F.3d 618
[8th Cir. 1999]) (internal quotations omitted).
An administrator's decision to deny a plan participant's claim
for disability benefits is arbitrary and capricious if it is made
in the absence of a "full and fair review" as required by
29 U.S.C. § 1133(2). Crocco v. Xerox Corp., 137 F.3d 105, 108 (2d
Cir. 1998); see also Cook v. New York Times Co. Long-Term,
Disability Plan, 02 Civ. 9154, 2004 WL 203111, at *6 (S.D.N.Y.
Jan. 30, 2004) (noting that a violation of ERISA and its
implementing regulations has been held to constitute a
significant error on a question of law warranting a finding that
an administrator's decision to deny benefits was arbitrary and
capricious). "Nonetheless, the Second Circuit has indicated that
`substantial compliance' with the regulations may suffice to meet
§ 1133's mandate of full and fair review, even when an individual
communication from the administrator does not strictly meet those
requirements." Cook, 2004 WL 203111, at *6 (citing Burke v. Kodak Retirement Income Plan, 336 F.3d 103, 107-09 [2d
Cir. 2003]); see also Diagnostic Medical Associates, M.D.,
P.C. v. Guardian Life Ins. Co., 157 F. Supp. 2d 292, 299
(S.D.N.Y. 2001) ("[C]ourts have held that in determining whether
a plan complies with applicable regulations, substantial
compliance is sufficient."); Halpin v. W.W. Grainger, Inc.,
962 F.2d 685, 690 (7th Cir. 1992) ("In determining whether a plan
complies with the applicable regulations, substantial compliance
is sufficient."). A notice of a denial of benefits substantially
complies with the pertinent regulations if the plan participant
is provided with an explanation of the reasons for the denial
that is adequate to afford an opportunity for effective review.
See Cook, 2004 WL 203111, at *6; Halpin, 962 F.2d at 690
("[W]as the beneficiary supplied with a statement of reasons
that, under the circumstances of the case, permitted a
sufficiently clear understanding of the administrator's position
to permit effective review.").
There can be no doubt that the August 5, 1996 letter informing
Nerys of the rejection of his application for health and pension
benefits was not in full compliance with the regulations outlined
above. Subsection (i) of 29 C.F.R. § 2560.503-1(g) requires that
a claimant be notified of the specific reason or reasons for the
adverse determination. The Funds initial letter of denial,
however, stated only that Nerys did not qualify under the
relevant standard of permanent disability, that is, "the
inability to work in any capacity." It did not explain with any
specificity why the plaintiff's claim was deficient. See
Alternative Care Systems v. Metropolitan Life Ins. Co., No. 92
Civ. 7208, 1996 WL 67737, at *3 (S.D.N.Y. Feb. 16, 1996) (finding
that where denial form contained no narrative description of the
deficiencies of plaintiff's claim, it failed to provide specific
reason(s) for the denial); Omara v. Local 32B-32J Health Fund,
No. 97 CV 7538, 1999 WL 184114, at *3 (E.D.N.Y. Mar. 30, 1999)
("The notices did not give any specific reason for the denial of Plaintiff's benefits application other
than stating in conclusory fashion that Plaintiff's medical
condition did not meet the Plan's standard for disability.").
Moreover, insofar as the August 1996 letter neglected to provide
either a description of the additional material or information
necessary for Nerys to perfect his claim, or an explanation of
why such material or information was necessary, it also failed to
meet the requirement set forth in subsection (iii) of
29 C.F.R. § 2560.503-1(g).
The defendants argue that, as no additional material or
information was necessary to perfect the claim, subsection (iii)
is not relevant in this case. However, despite the fact that a
plan administrator may believe that a plaintiff is not disabled
and, thus, that there exists no additional information that would
permit the plaintiff to perfect his claim, nonetheless, failure
to comply with all of the requirements set forth in § 1133 and
the relevant implementing regulations constitutes a defect that
"goes to the core of the purpose of the notice requirements."
Dawes, 1992 WL 350778, at *3-5 (citing cases in which courts
have found that letters that failed to state what information was
necessary for perfection of an appeal were inadequate under §
Moreover, because the Trustees' initial letter of denial gave
no indication of what items of evidence were considered by them
in reaching their determination or how the evidence was assessed,
it does not appear that the Trustees's communication to Nerys
provided him with an understanding of their position that was
sufficient to afford him an opportunity for effective review of
the denial of his benefits application. See Halpin,
962 F.2d at 693-94. Compare Diagnostic Medical Associates, M.D., P.C.,
157 F. Supp. 2d at 300-01 (finding that defendant afforded
plaintiff full and fair review of his claims); Rosario v. Local
32B-32J, 2001 WL 930234, at *4 (S.D.N.Y. Aug. 16, 2001) (same);
Gallo v. Amoco Corp., 102 F.3d 918, 922 (7th Cir. 1997) (finding that ERISA plan administrator's
determination was not arbitrary and capricious because although
he was required to give specific reasons for denial of claim,
that is not the same thing as reasoning behind the reason).
The November 27, 2002 letter notifying Nerys of the denial of
his appeal is more informative than the Trustees' initial letter
of denial. It includes a reference to section 4.11 of the Pension
Plan, the specific plan provision on which the Trustees'
determination was based, and also describes the medical
information that the Appeals Committee relied upon in reaching
its decision: "the report of Dr. Peter Marchisello, dated August
30, 2002; the report of Dr. Stephen Allen, dated July 24, 1996;
the reports of Dr. Futterman, dated July 20, 2001, Dr. Weiss,
dated September 1, 1994, and Drs. Hamilton and Kosovsky, dated
July 29, 1996; the statements of Dr. Chowdhry, Dr. Rodriguez, and
Dr. Carfi; the findings of the [SSA]; and all test results and
operative reports." The letter also informs the plaintiff that
copies of the medical reports listed, "as well as all other
documents relevant to your claim," would be sent to him upon
request, free of charge, and that he had a right to bring a civil
action in a court of law challenging the Trustees' decision.
However, although the November 2002 letter conforms in certain
respects to ERISA and its implementing regulations, it is
deficient insofar as it fails to satisfy the requirements set
forth in subsections (i) and (iii) of 29 C.F.R. § 2560.503-1(g).
Specifically, the letter fails to provide: (a) a specific reason
or reasons for the denial of the appeal, and (b) a statement as
to how the claim might be perfected. See Cook, 2004 WL
203111, at *11 (finding that denial of plaintiff's first appeal
was based on deficiencies she was not given opportunity to cure
and, thus, failed to meet the requirements of ERISA and its
implementing regulations); Alternative Care Systems, 1996 WL 67737, at *3 (finding that general information provided
to plaintiff was insufficient to satisfy requirement of
description needed for perfection of claim); Soron v. Liberty
Life Assurance Co., 318 F. Supp. 2d 19, 24-28 (N.D.NY. 2004)
(finding that defendant failed to advise plaintiff of her right
to review evidence it had accumulated prior to making its
decision and, therefore, abused its discretion by depriving her
of a full and fair review of the denial of benefits).
Furthermore, the November 2002 letter does not explain why the
Trustees decided that Nerys was not totally disabled, that is,
they did not specify what sort of work they believed plaintiff
was capable of performing. See Cejaj v. Building Serv. 32B-J
Health Fund, No. 02 Civ. 6141, 2004 WL 414834, at *8 (S.D.N.Y.
Mar. 5, 2004) ("This failure to identify other viable employment
options suggests that the Trustees did not conduct a `full and
Under the circumstances, the Court finds that the letters
plaintiff received from the Trustees informing him that his
application for benefits had been denied failed to meet the
notice requirements of ERISA and its implementing regulations
and, therefore, were unreasonable as a matter of law.
Accordingly, the Trustees' determination must be vacated and the
defendants' motion for summary judgment must be denied.
Although the Court has found that the Trustees' determination
concerning plaintiff's eligibility for disability benefits was
arbitrary and capricious, the Court may not substitute its own
judgment for that of the Trustees and simply conclude that the
plaintiff has established his entitlement to benefits. Rather,
because the record does not contain indisputable evidence of
disability, the appropriate remedy is to remand to the fiduciary
for a new eligibility determination. See, e.g., Cook, 2004
WL 203111, at *19. Accordingly, the case is remanded to the Trustees for reconsideration. In issuing their new decision,
the Trustees shall comply with the requirements of
29 U.S.C. § 1133.
For the reasons set forth above, the defendants' motion for
summary judgment is denied and the case is remanded to the
Building Service 32B-J Health Fund and Pension Fund for