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NERYS v. BUILDING SERVICE 32B-J HEALTH FUND

United States District Court, S.D. New York


September 29, 2004.

VICTOR NERYS, Plaintiff,
v.
BUILDING SERVICE 32B-J HEALTH FUND, ET AL., Defendants.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

MEMORANDUM AND ORDER

I. INTRODUCTION

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.

  II. BACKGROUND

  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 insurance benefits.

  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 benefits.

  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 disability benefits.

  III. DISCUSSION

  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 [1986]).

  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 (1986).

  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 capricious standard.

  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 disability benefits."

  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 Security Act.

  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 determination;
(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, 622 [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 § 1133).

  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 fair review.'").

  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.

  Remedy

  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.

  IV. CONCLUSION

  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 reconsideration.

  SO ORDERED.


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