United States District Court, S.D. New York
August 22, 2005.
FAHRIJE MEHAJ, Plaintiff,
BUILDING SERVICE 32B-J HEALTH FUND and BUILDING SERVICE 32B-J HEALTH FUND, Defendants.
The opinion of the court was delivered by: LOUIS STANTON, District Judge
OPINION AND ORDER
Plaintiff Fahrije Mehaj claims that the Building Service 32B-J
Health and Pension Funds (the "defendants") denied her
application for disability benefits in violation of the Employee
Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et
seq. Defendant moves for summary judgment dismissing her claims
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
When reviewing a denial of benefits under ERISA,"where the
written plan documents confer upon a plan administrator the
discretionary authority to determine eligibility, we will not disturb the administrator's ultimate conclusion unless it is
`arbitrary and capricious.'" Pagan v. NYNEX Pension Plan,
52 F.3d 438, 441 (2d Cir. 1995).
The Health Fund Agreement and Declaration of Trust states that
"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. . . ." June 2, 2005 Aff.
of Frank Smith, Ex. C, Seventh (B), at p. 4. The Summary Plan
Description states in its introduction that:
the Trustees, other Plan fiduciaries, and individuals
to whom responsibility for the administration of the
Plan has been delegated have discretionary authority
to interpret the terms of the Plan, to determine
eligibility and entitlement to benefits in accordance
with the terms of the Plan, and to decide any fact
related to eligibility for an entitlement to
benefits. Any interpretation or determination made
under that discretionary authority will be given full
force and effect, unless it can be shown that the
interpretation or determination was arbitrary and
Id., Ex. D, at p. iv.
The Pension Fund Agreement and Declaration of Trust similarly
grants the Trustees the power:
To decide, in the Trustees' sole discretion, all
questions (both factual and legal) relating to the
eligibility or rights of Participants or
Beneficiaries for Benefits under the Plan, and the
amount and kind of all Benefits to be paid under the
Id., Ex. E, Art. V, § 1(e), p. 12. Since both the Health Fund
and Pension Fund documents confer discretionary authority to
determine eligibility on the Trustees, their denial of benefits to plaintiff must be upheld unless it was the arbitrary and
Defendants denied plaintiff's initial application for benefits
on July 11, 2003. Plaintiff appealed that decision to the funds'
Appeals Committee (the "Committee"). After a hearing, the
submission of additional evidence, and further consideration, the
Committee denied plaintiff's appeal by letter dated March 29,
2004 ("the Determination"). See Id., Ex. DD. The Determination
set forth the Committee's reasoning.
Section 4.11 of the Pension Plan document provides
that a participant is totally and permanently
disabled if, on the basis of medical evidence
satisfactory to the Trustees, he or she is found to
have become, while working in covered employment,
totally and permanently unable, as a result of bodily
injury or disease, to engage in any further
employment or gainful pursuit.
The Appeals Committee has determined that your
condition does not meet the above-described
eligibility standard based on the following medical
information: Dr. Ira Rashbaum's Independent Medical
Evaluation and Report dated 4/8/03 wherein he states
that you are not totally disabled from a physical
medicine and rehabilitation standpoint and that you
"could work in a sedentary capacity", Dr. Lester
Lieberman's Independent Orthopedic Evaluation and
Report Attending Physician's Statement dated 12/10/03
wherein he states that you are not totally and
completely unable to work in any capacity at any type
of profession. In addition, the Committee reviewed
the following medical records you submitted:
Statement dated 2/25/04 from Dr. Jorge Rinsky; Dr. Slobodan Aleksic's Attending Physician's Statement
dated 1/22/03 and Attending Doctor's Report for
Worker's Compensation for dates of treatment 11/6/02
through 11/19/02; Claimant's Supplementary Statement
dated 1/31/00; Operative Report dated 9/29/99 for
tear in Right Rotator Cuff; MRI Scan Report of the
Lumbosacral Spine dated 1/22/03; MRI Examination
report of the Left Shoulder dated 7/16/02; MRI Scan
Report of the Cervical Spine dated 10/8/01; Computed
Tomography report of the Soft Tissues of the Neck
dated 11/14/00; MRI Report of the Right Shoulder
dated 10/30/98; and Social Security Administration
Notice of Award dated March 29, 2003; as well as the
entire file records.
In so deciding, the Committee chose to credit the opinions of
the two independent physicians, Dr. Rashbaum and Dr. Lieberman,
over those of plaintiff's physicians, Dr. Aleksic and Dr. Rinsky,
each of whom had concluded that plaintiff was totally disabled
within the meaning of the Plan. Such a choice is within the
prerogative of the Committee. The Supreme Court has held that
"courts have no warrant to require administrators automatically
to accord special weight to the opinions of a claimant's
physician; nor may courts impose on plan administrators a
discrete burden of explanation when they credit reliable evidence
that conflicts with a treating physician's evaluation." Black &
Decker Disability Plan v. Nord, 538 U.S. 822, 834,
123 S.Ct. 1965, 1972 (2003). 3.
Under the arbitrary and capricious standard, a reviewing court
may overturn a decision "only if it was `without reason,
unsupported by substantial evidence or erroneous as a matter of
law.'" Pagan, 52 F.3d at 442, quoting Abnathya v. Hoffman-La
Roche, Inc., 2 F.3d 40, 45 (3rd Cir. 1993). "The exercise of
discretion involves the freedom to decide what evidence to credit
or to discredit." Vursanaj v. Building Service 32B-J Health and
Pension Fund, 1995 WL 590616, at *4 (S.D.N.Y. Oct. 4, 1995). The
court may not substitute its judgment for that of the Committee.
Id. The Determination is supported by the reports of Dr.
Rashbaum (a Clinical Associate Professor at the Rusk Institute of
Rehabilitation Medicine), and of Dr. Lieberman (who rendered a
detailed four-page letter-report and concluded that plaintiff was
not "totally and completely unable to work in any capacity at any
type of profession").
Plaintiff complains that the Committee did not consider the
July 13, 2004 report of Dr. Tamara Pinkhasova, who concluded that
plaintiff was totally disabled. However, that report was not
before the Committee and, because it did not exist until some months after the Determination, it is not part of the record. The
Second Circuit has held that "a district court's review under the
arbitrary and capricious standard is limited to the
administrative record." Miller v. United Welfare Fund,
72 F.3d 1066, 1071 (2d Cir. 1995). In the nature of these proceedings,
the court cannot assess plaintiff's condition except as of the
time of the Committee's determination.
Plaintiff also asserts that the Determination contradicts her
March 29, 2003 award of disability benefits from the Social
Security Administration. The Committee need not defer to the
Social Security determination. While the determination of Social
Security benefits is made under a uniform set of federal
criteria, a claim to benefits under an ERISA plan turns mainly on
the terms of the plan at issue. See Black & Decker,
538 U.S. at 833, 123 S.Ct. at 1971; see also Rivera v. Board of Trustees,
2003 WL 21710763, *4 (S.D.N.Y. July 23, 2003) ("Different factors
go into a Social Security determination").
Plaintiff raises several procedural questions about the appeals
She complains that the defendants' letter dated January 9, 2004
notifying her of the appeal hearing fails to advise her of her right to appear with counsel or an interpreter, or to present
testimony. Under the law, defendants need only provide "the
opportunity to submit written comments, documents, records, and
other information relating to the claim for benefits."
29 CFR § 2560.503-1(h)(2)(ii). She had that opportunity and, in any event,
did attend the hearing with an attorney and interpreter. Her
complaint on this point is captious.
Plaintiff also claims that the Committee failed to consider the
Social Security award. This complaint also is baseless, as the
Determination specifically lists the Social Security
Administration Notice of Award among the documents that the
Committee reviewed. Smith Aff., Ex. DD.
Next, plaintiff argues that the advance summary provided to the
Committee by a Fund employee is biased toward denial and does not
mention all the relevant evidence. However, the Committee's
report shows that it independently reviewed all the evidence
available at the time, and did not rely on the summary in the
formulation of its Determination.
Finally, plaintiff complains in her brief that she did not
receive the reports of Dr. Rashbaum and Dr. Lieberman prior to
the March 23, 2004 hearing. No affidavit makes that assertion,
and it is contradicted as to Dr. Rashbaum's report by
correspondence in the record. Certainly both the Lieberman and
Rashbaum reports were available during and after the hearing, and plaintiff has offered no argument or proof of how her receipt
of those reports earlier would have affected the outcome.
Accordingly, defendants' motion for summary judgment is
granted. The Clerk will enter judgment dismissing the complaint,
with costs and disbursements to defendants according to law.
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