United States District Court, D. New Jersey
JOEL SIEGEL LAW OFFICES OF DANIEL J SIEGEL LLC Attorney for
Plaintiff Dorothy McCullough.
FREDERICK M. MARX, SLEVIN & HART, P.C., STEVEN J.
BUSHINSKY, W. DANIEL FEEHAN, III, O'BRIEN, BELLAND &
BUSHINSKY, LLC Attorneys for Defendant UCFW Local 152 Retail
Meat Pension Fund.
L. HILLMAN, U.S.D.J.
an Employee Retirement Income Security Act
(“ERISA”) case concerning the interpretation of a
provision of an ERISA plan as it relates to Social Security
statutes and regulations. Presently before the Court is
Plaintiff Dorothy McCullough's Motion for Summary
Judgment and Defendant UCFW Local 152 Retail Meat Pension
Fund's (the “Fund”) Cross-Motion for Summary
Judgment. For the reasons that follow, this Court will grant,
in part, and deny, in part, Plaintiff's Motion for
Summary Judgment and grant, in part, and deny, in part,
Defendant's Cross-Motion for Summary Judgment.
Court takes its facts from the parties' statements of
material facts. Plaintiff was an employee of Acme Markets,
Inc. (“Acme”) and a member of a union, UCFW.
Plaintiff began her employment at Acme on October 29, 1986.
In 2011, she sustained her first work-related injury. In 2011
and 2012, Plaintiff's injury worsened to the point that
she could no longer work the light-duty job to which she had
been assigned. Plaintiff left Acme in December 2012. At that
time, Plaintiff also filed an application for Social Security
Disability Benefits (“SSDB”), claiming she was
disabled as defined by the Social Security Act. The Social
Security Administration (“SSA”) determined that
Plaintiff was disabled as of January 2013 via a Notice of
Award on April 27, 2013 (the “Notice”). The
Notice explained that her SSDB would begin in June 2013 after
the statutory waiting period had elapsed.
returned to work at Acme on August 13, 2013. She worked at
Acme until March 3, 2014 when she sustained a second
work-related injury. Plaintiff retired from Acme on April 21,
2014 when she received short-term disability benefits.
Plaintiff asserts that she returned to Acme under a
“period of trial work” pursuant to 42 U.S.C.
§ 422(c). Plaintiff did not lose her disability
status or SSDB during that time period. But, during that time
Plaintiff worked approximately forty-hour work weeks at Acme.
As of October 25, 2016, a letter from the SSA shows Plaintiff
was still entitled to monthly SSDB. Plaintiff officially
retired from Acme on March 16, 2016.
was a participant in a pension plan administered by Defendant
(the “Plan”). The Plan is governed by ERISA. A
part of the Plan provided participants with a Disability
Retirement Pension (“DRP”) if the participant met
certain requirements. Plaintiff applied for a DRP on June 7,
2016, stating her effective retirement date was March 16,
2016. (ECF No. 22, Administrative R. FUND0005.)
Plan states the following concerning whether a member may
qualify for a DRP:
A Participant who incurs a “Total and Permanent
Disability” (as defined in this Section) and who has
accumulated ten (10) or more years of Benefit Credit in
accordance with the provisions of Article II, shall be
eligible for a Disability Retirement Pension; provided,
however, a Participant who incurs a “Total and
Permanent Disability” (as defined in this Section) who
completes one (1) or more hours of service on or after
February 1, 1997 shall be eligible for a Disability
Retirement Pension if such Participant has accumulated ten
(10) or more years of Vesting Credit in accordance with the
provisions of Article III. A Participant shall be considered
to have sustained a Total and Permanent Disability if he is
disabled under the definition of disability used to determine
eligibility for disability benefits under the Federal Social
Security Act and has been awarded a disability pension under
said Act. In order to establish for Plan purposes the award
of such disability pension by the Social Security
Administration, the Participant must furnish to the Trustees
a Certificate of Award from the Social Security
Administration with a Date of Entitlement within twenty-four
(24) months after the Participant's last day worked for
an Employer, and the Participant must have been continuously
disabled from the last day of paid employment to the Date of
Entitlement stated therein. Disability shall be considered
Permanent and a Participant shall be eligible for retirement
upon the expiration of five (5) full months following the
date of disablement; provided, however, the Participant shall
not begin to receive his Disability Retirement Pension until
the first day of the month following the expiration of six
(6) full months from his date of disablement.
Plan states the following concerning termination of a DRP:
of a Disability Retirement Pension shall be terminated:
(a) If and when the Pensioner engages in any regular gainful
occupation or employment for remuneration or profit deemed
significant by the Trustees under uniform nondiscriminatory
rules, except for purposes of rehabilitation.
(b) If and when the Pensioner has sufficiently recovered to
resume his regular gainful occupation or any other employment
for remuneration or profit.
(c) If and when the Social Security Administration shall
suspend the disability pension of the Pensioner previously
awarded under Social Security.
Board of Trustees of the Fund (the “Trustees”)
have “the sole and absolute discretion to determine
eligibility under the Plan and to construe and interpret
provisions of the Plan.” (FUND0093.) After review by
the Trustees, the Fund sent Plaintiff a letter dated July 8,
2016 awarding Plaintiff a DRP solely for the month of July
2013. (FUND0006-7.) In that letter, the Trustees determined
that Plaintiff qualified for a DRP and that the six-month
waiting period allowed Plaintiff to be paid a DRP effective
July 1, 2013. However, because Plaintiff returned to work at
Acme starting in August 2013, the Trustees determined that
they must terminate Plaintiff's DRP under subsection (a)
or (b) of the Plan's DRP provisions.
appealed this decision on July 18, 2016. (FUND0008-0010.) In
it, Plaintiff argued that she was “injured again at
work” as of March 3, 2014, that she was currently
entitled to a DRP, and that she was “entitled to back
pension pay from the date [she] was awarded Social Security
Disability.” (FUND0008.) In that letter, Plaintiff
appears to state she is still receiving SSDB. (FUND0009
(“I was forced onto Medicare they just take it out of
my Social Security Disability Check.”).)
September 16, 2016, the Trustees denied Plaintiff's
appeal. (FUND0026-30.) Again, the Trustees based their
decision on the fact that Plaintiff returned to work in
August 2013 and advised Plaintiff her status “as
‘Totally and Permanently Disabled' under the
Federal Social Security Act ended when [she] resumed
employment on August 13, 2013.” (FUND0029.) Defendant
advised Plaintiff that she needed to request a new
determination from the SSA to regain eligibility for a DRP.
November 30, 2016, Plaintiff's current counsel drafted a
letter to the Fund requesting reconsideration of their
denial. (FUND0031-33.) In it, Plaintiff argued she has been
deemed disabled by the SSA since January 2013 and that her
return to work was under a “trial work period”
that in no way affected her disability status or eligibility
for SSDB. The Trustees responded by letter of May 5, 2017
stating “[t]he Plan does not provide an exception for
trial work periods under Social Security Administration
rules.” (FUND0046-47.) Further, it stated “once
[Plaintiff's] 2013 Disability Benefit terminated, it
could not be reinstated unless she suffered a subsequent
disability for which she received a separate disability award
from the Social Security Administration.” (FUND0047.)
Plaintiff filed her complaint on July 13, 2017 in the United
States District Court for the Eastern District of
Pennsylvania. On Plaintiff's Motion to Transfer (based on
a forum selection clause), Judge Robert F. Kelly transferred
the matter to this Court for disposition. On April 26, 2018,
Plaintiff filed the instant Motion for Summary Judgment. On
May 24, 2018, Defendant filed its response as well as its
Cross-Motion for Summary Judgment. Plaintiff filed an
opposition brief. The parties agree that this is merely a
review of the administrative record and that the case is
governed by ERISA.
these two motions have been fully briefed and are ripe for
Subject Matter Jurisdiction
Court has jurisdiction over this case pursuant to 28 U.S.C.
Standard of Review
parties agree this Court should review the decision of the
Fund on the basis of the administrative record before it. The
parties agree the standard of review is abuse of discretion,
which is sometimes referred to as “arbitrary and
capricious” in the ERISA context. The ...