MCCULLOUGH v. UFCW LOCAL 152 RETAIL MEAT PENSION FUND

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DOROTHY MCCULLOUGH,

Plaintiff,

Civil No. 17-6578 (NLH/KMW)

v.

OPINION

UCFW LOCAL 152 RETAIL MEAT

PENSION FUND,

Defendant.

APPEARANCES:

DANIEL JOEL SIEGEL

LAW OFFICES OF DANIEL J SIEGEL LLC

66 WEST EAGLE RD

SUITE 1

HAVERTOWN, PA 19083

Attorney for Plaintiff Dorothy McCullough.

FREDERICK M. MARX

SLEVIN & HART, P.C.

1625 MASSACHUSETTS AVENUE, NW

SUITE 450

WASHINGTON, DC 20036

STEVEN J. BUSHINSKY

W. DANIEL FEEHAN, III

O'BRIEN, BELLAND & BUSHINSKY, LLC

1526 HADDONFIELD-BERLIN ROAD

CHERRY HILL, NJ 08003

Attorneys for Defendant UCFW Local 152 Retail Meat Pension

Fund.

HILLMAN, District Judge

This is 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.

BACKGROUND

The Court takes its facts from the parties’ statements of

material facts.1 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

1 The Court notes Plaintiff has not technically complied with

Local Rule of Civil Procedure 56.1. This rule serves a vital

function in the Court’s consideration of summary judgment

motions. Here, despite Plaintiff’s non-compliance, Defendant

has responded so that the Court is able to determine the facts

in dispute. Defendant requests this Court to deny Plaintiff’s

Motion for Summary Judgment on these grounds. The Court

declines to do so and will consider the merits of the action.

Plaintiff’s counsel is reminded of the obligation to comply with

all Court rules or risk procedural defaults.

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.

Plaintiff 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).2 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.

2 Defendant disputes this, alleging it is a factual dispute. It

is not. The parties agree that Plaintiff worked between August

2013 and April 2014. How that work is designated per the Social

Security Act and implementing regulations is a question of law,

not fact.

Plaintiff 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.)3

The 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

3 Hereafter, the Court will refer to the Administrative Record

filed by Defendant solely by the “FUND” stamp.

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.

(FUND0069.)

The Plan states the following concerning termination of a

DRP:

Payment 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.

(FUND0069.)

The 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.

Plaintiff 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.”).)

On 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. (FUND0029.)

On 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.)

Thereafter, 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.

Accordingly, these two motions have been fully briefed and are

ripe for adjudication.

ANALYSIS

A. Subject Matter Jurisdiction

This Court has jurisdiction over this case pursuant to 28

U.S.C. § 1331.

B. Standard of Review

The 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.4 The Court finds the proper standard of

review is for abuse of discretion by Defendant.

All agree, this is an action under 29 U.S.C. §

1132(a)(1)(B). (Pl.’s Compl. ¶ 3; Def.’s Cross-Mtn. for Summ.

J. 11.) When a claim is brought pursuant to 29 U.S.C. §

1132(a)(1)(B), a Court must first determine whether the plan

under review “gives the administrator or fiduciary discretionary

authority to determine eligibility for benefits or to construe

the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch,

4 In Plaintiff’s Motion for Summary Judgment, she asserts a

heightened standard of review is required in this case. (Pl.’s

Mot. for Summ. J. 6.) However, in her later opposition,

Plaintiff concedes that the abuse of discretion standard of

review is appropriate. (Pl.’s Opp’n Br. 9.) Because Plaintiff

concedes this standard is correct, this Court will not consider

whether a heightened standard is appropriate.

489 U.S. 101, 115 (1989). Here, the Plan explicitly states that

“the Trustees shall have the sole and absolute discretion to

determine eligibility for benefits under the Plan and to

construe and interpret the provisions of the Plan . . . .”

(FUND0093.) Therefore, review is not de novo, but for abuse of

discretion. Firestone Tire & Rubber Co., 489 U.S. at 115.

Under this standard of review, “the Court’s role is not to

interpret ambiguous provisions de novo, but rather to analyze

whether the plan administrator’s interpretation of the document

is reasonable.” Connor v. Sedgwick Claims Mgmt. Servs., 796 F.

Supp. 2d 568, 580 (D.N.J. 2011) (internal quotation marks

omitted). An administrator’s decision is only considered an

abuse of discretion “if it is without reason, unsupported by

substantial evidence or erroneous as a matter of law.” Hocknell

v. Metro. Life Ins. Co., 276 F. Supp. 3d 292, 295 (D.N.J. 2017).

The scope of review is narrow, and “the court is not free to

substitute its own judgment for that of the plan administrator

in determining eligibility for plan benefits.” Id. (citing

Connor, 796 F. Supp. 2d at 579). “[T]he plaintiff retains the

burden to prove that he is entitled to benefits, and that the

plan administrator’s decision was arbitrary and capricious.”

Id. at 296. This Court will examine the parties’ motions under

this standard of review.

C. Cross-Motions for Summary Judgment Standard

As this Court has stated before “[s]ummary judgment is

appropriate where the Court is satisfied that the materials in

the record . . . demonstrate that there is no genuine issue as

to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Hocknell v. Metro. Life Ins. Co.,

276 F. Supp. 3d 292, 295 (citing Celotex Corp. v. Catrett, 477

U.S. 317, 330 (1986)); FED. R. CIV. P. 56(a). When the Court is

confronted with cross-motions for summary judgment, “judgment

may be entered in favor of the party deserving of judgment in

light of the law and undisputed facts.” Id. (citing Iberia

Foods Corp. v. Romeo Jr., 150 F.3d 298, 302 (3d Cir. 1998)

(citation omitted)).

D. The Motions for Summary Judgment

The central issue in this case is the interpretation of the

DRP provisions of the Plan and the procedures of the SSA as they

relate to a finding of disability, SSDB, and a “period of trial

work.” The parties’ central arguments are relatively

straightforward. Plaintiff asserts she has been disabled

pursuant to the SSA since January 2013 and receiving SSDB since

June 2013. Even though she returned to work for a period of

approximately eight months, this was a period of “trial work,”

which did not alter her disability status or entitlement to

SSDB. For that reason, Plaintiff argues she should have

received a DRP not only for July 2013 (the time between the

waiting period under the Plan and her brief return to work), but

also starting again in May 2014, the first of the month after

which she completely stopped work at Acme.5

Defendant argues Plaintiff’s return to work in August 2013

terminated her DRP. Once it was terminated, according to

Defendant, Plaintiff was required by the Plan to present a new

Certificate of Award from the SSA for a new disability to be

eligible again for a DRP. Defendant argues SSA rules and

regulations concerning trial work are irrelevant, and that the

Court should solely be concerned with the interpretation of the

Plan.

Plaintiff has brought a 29 U.S.C. § 1132(a)(1)(B) claim.

Since the claim is to enforce benefits due under an ERISA plan,

the claim is governed, in part, by the interpretation of what

the Plan provides. The Court notes that neither party

challenges whether Plaintiff was disabled under the SSA or

whether she qualified for DRP as of July 1, 2013. But,

Plaintiff does challenge the following:

•

Whether the DRP eligibility and termination provisions are

ambiguous;

5 Plaintiff doses not delineate her exact request in her

briefing. However, it appears this was the request made to

Defendant and this is the request Defendant understood to be

made by Plaintiff.

•

Whether work under a “period of trial work” allows

Defendant to terminate a grant of DRP; and

•

Whether Plaintiff was required to submit a new Notice of

Award to be eligible to receive DRP after it was

terminated.

The Court will examine each of these questions in turn and

consider the parties’ arguments in their competing motions.

a. Whether the DRP Provisions are Ambiguous

Plaintiff makes multiple arguments concerning the

interpretation of the terms of the Plan. First, the Court will

address Plaintiff’s argument concerning the lack of the word

“and” or “or” between subsections (a), (b), and (c). Second,

the Court will address Plaintiff’s remaining arguments which

allege ambiguity in various other parts of the Plan’s DRP

provisions. Plaintiff argues that the omission of the word “or”

between subsections (a), (b), and (c) renders the Plan ambiguous

as to whether all or only one of these conditions must be met

before Defendant could terminate Plaintiff’s DRP. Plaintiff

argues if subsections (a), (b), and (c) were all necessary

before termination, then it would be contrary to the Plan to

have terminated Plaintiff’s DRP. Defendant argues the Plan is

not ambiguous and that the Trustee’s interpretation of these

conditions as disjunctive is reasonable.

“The determination of whether a term is ambiguous is a

question of law.” Taylor v. Cont’l Grp. Change in Control

Severance Pay Plan, 933 F.2d 1227, 1232 (3d Cir. 1991) (citing

Mellon Bank, N.A. v. Aetna Bus. Credit, Inc., 619 F.2d 1001,

1011 (3d Cir. 1980)). A term of an ERISA plan is ambiguous if

“it is subject to reasonable alternative interpretations.” Id.

(citing Mellon Bank, N.A., 619 F.2d at 1011). If the Court

determines a term is ambiguous, “interpretation of [an]

ambiguous plan provision[] is a question of fact.” Id.

The Court agrees with Defendant: subsections (a), (b), and

(c) are not ambiguous because Plaintiff has presented no

reasonable alternative interpretations. In other words, there

is only one reasonable interpretation, that of Defendant. For

context, the Court lists the conditions again here:

(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.

(FUND0069.)

The use of “if and when” and a period in subsections (a),

(b), and (c) clearly denotes that each condition is a separate

and sufficient basis for termination. In other words, “if and

when” either subsection (a), (b), or (c) is met, Defendant may

terminate a DRP. While use of the word “or” would be better

here, it is not necessary to understand the plain and ordinary

meaning of the provision. Defendant is also correct that

reading the Plan to require each subsection to be met – as

Plaintiff proposes - would render parts of (a) or (b)

superfluous, as both require “regular gainful occupation” or

“employment for remuneration or profit.” (FUND0069). The fact

that (a) is broader than (b) – with (a) allowing termination of

a DRP if an individual “engages in any regular gainful

occupation” and (b) stating “his regular gainful occupation” –

would also suggest that part of the language in (b) would be

redundant under Plaintiff’s conjunctive reading. This Court

finds there is no ambiguity. Accordingly, this Court finds

Defendant’s interpretation of the Plan allowing termination of a

DRP if any of the subsections is met was not an abuse of

discretion.

Plaintiff also makes several other arguments concerning

these subsections and the DRP provisions overall. Plaintiff

argues (1) subpart (a) “places too much discretion in the

‘Trustees’ to determine the definition of ‘gainful employment’”;

(2) subpart (a) does not state “what uniform nondiscriminatory

rules” apply; (3) subparts (a) and (b) “do not consider the

unique circumstances here” where Plaintiff returned to work and

was injured a second time; (4) the conditions are unduly vague

or “subject to selective and/or discriminatory application”; and

(5) the DRP provisions do not allow for a period of trial work.

(Pl.’s Mot. for Summ. J. 15.)

These are not cognizable, because Plaintiff has not brought

a claim for reformation of the Plan, but to enforce it. See

Shah v. Horizon Blue Cross Blue Shield of N.J., No. 17-cv-632

(NLH/AMD), 2018 U.S. Dist. 49996, at *8-10 (D.N.J. Mar. 27,

2018) (citing CIGNA Corp. v. Amara, 563 U.S. 421, 435-36 (2011))

(holding disagreement with the fairness of terms, as long as the

terms were followed, is not an abuse of discretion and further

holding a court cannot change the terms of a plan in an ERISA §

502(a)(1)(B)). This determination is well supported by the very

terms of Plaintiff’s argument, which does not go so far as to

say there was selective or discriminatory application or that

the Trustees defined “gainful employment” arbitrarily or

capriciously. These arguments do not bear on whether Defendant

committed an abuse of discretion in terminating Plaintiff’s DRP,

but merely express a wish for the Plan to have different terms.

Based on these arguments, the Court finds there was no abuse of

discretion by Defendant.

Finally, Plaintiff argues she “was not informed by the

Administrator that if she returned to work on modified duty

(light duty work) during a ‘period of trial work’ that she would

lose her right vested disability retirement pension.” (Pl.’s

Mot. for Summ. J. 15.) Defendant counters by stating the record

does not support this argument, as Plaintiff only applied for

DRP after she had returned to work. Defendant is correct.

Defendant first learned Plaintiff wished to apply for a DRP in

June 2016, which was almost three years after Plaintiff returned

to work in August 2013. Defendant could not have warned

Plaintiff about circumstances to which it was unaware. The

Court finds this argument does not show an abuse of discretion

by Defendant.

b. Whether Termination of Plaintiff’s DRP by Defendant

was Reasonable under the Plan

Plaintiff argues that the approximately eight months that

she worked for Acme after being judge disabled by the SSA and

receiving SSDB was a “period of trial work.” Plaintiff argues

that the trial work period did not change her disability status

or entitlement to SSDB. As a result, it was improper for

Defendant to terminate the grant of DRP starting in August 2013.

Defendant argues that the plain language of Article IV, Section

3 generally allows them to terminate DRP if the individual

returns to employment. Defendant argues there is no provision

for trial work within the confines of the Plan.

The Court begins by noting an obvious principle: the

requirements of the SSA to qualify for disability and the

requirements to qualify for a DRP under the Plan are different.

While this does not mean SSA rules and regulations are totally

irrelevant6, it does mean “it is not inherently contradictory to

permit an individual to recover benefits pursuant to the Social

Security Act while being denied benefits pursuant to a private

ERISA benefit plan.” Pokol v. E.I. Du Pont Nemours & Co., 963

F. Supp. 1361, 1380 (D.N.J. 1997).

Thus, whether Plaintiff was completing a period of trial

work between August 2013 and April 2014 does not bear on the

issue of whether it was proper for Defendant to terminate

Plaintiff’s DRP for that time period. The Court will separately

address whether this period of trial work and SSA regulations

have any bearing on the requested resumption in May 2014 of

Plaintiff’s DRP, which was also denied by Defendant. Three

questions must be answered here: (1) under what conditions may

Defendant terminate a DRP, (2) was it reasonable for the

Defendant to conclude that Plaintiff satisfied these conditions,

6 Obviously, because the Plan defers to the definition of

disability under the Social Security Act and requires proof of a

disability determination from the SSA, it is incorrect to state,

as Defendant does, that SSA regulations “are simply irrelevant.”

(Def.’s Cross-Mtn. for Summ. J. 16.)

and (3) are there any other provisions of the Plan which would

have prohibited termination in this situation.

Defendant asserts it may terminate a DRP if one of the

three conditions discussed supra is met. Defendant asserts it

was reasonable for it to conclude Plaintiff had met either

subpart (a) or (b). The Court agrees. Under subpart (a), a DRP

may be terminated:

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.

(FUND0069.) Between August 2013 and April 2014, Plaintiff

engaged in (1) regular gainful employment, (2) for remuneration,

and (3) it was deemed significant by the Trustees.7 It appears

from the undisputed facts that Plaintiff worked at Acme for

approximately forty hours a week, except in April which was cut

short by her leaving due to injury. She was paid by Acme for

her work – it was not on a volunteer basis. The Trustees found

this work was significant. Plaintiff has not shown that

termination of her DRP under this provision was an abuse of

discretion.

Although it is sufficient, based on the Court’s analysis

supra, to find no abuse of discretion by Defendant in

7 The Court will not address whether the work fits within the

rehabilitation portion, as not party asserts this argument.

terminating Plaintiff’s DRP under subsection (a), the Court will

also consider subsection (b). Under subpart (b), a DRP may be

terminated:

If and when the Pensioner has sufficiently recovered

to resume his regular gainful occupation or any other

employment for remuneration or profit.

(FUND0069.) A plain reading of this subsection reveals that it

would be proper to terminate a DRP if an individual resumed any

employment for “remuneration or profit.” The separate condition

of “sufficiently recovered” appears to not be a separate

requirement. Instead, it appears to be satisfied when the

individual resumes employment for remuneration or profit. As

detailed above, Plaintiff did resume her previous position at

Acme between August 2013 and April 2014, working approximately

forty-hour weeks, and was paid for her services by Acme. Thus,

Plaintiff has not shown that termination of her DRP under this

provision was an abuse of discretion.8

Finally, the Court must consider whether any other portion

of the Plan would in some way prohibit Defendant from

8 Plaintiff also asserts that Defendant never explained that

subsections (a) and (b) applied to her and was the reason for

termination of her DRP. This argument is belied by the

uncontested record. In the July 8, 2016 from Defendant to

Plaintiff, Defendant cites both subsection (a) and subsection

(b) and discusses that she “returned to regular gainful

employment,” language nearly identical to that contained in the

subsections. (FUND0006.) This was reiterated in the September

16, 2016 letter, (FUND0026-30), and the May 5, 2017 letter,

(FUND0046-47.) Under this argument, the Court finds no abuse of

discretion by Defendant.

terminating a Plaintiff’s DRP. Initially, as this Court has

stated before, a 29 U.S.C. § 1132(a)(1)(B) claim only allows a

Court to enforce the terms of an ERISA plan, not change them.

Shah, 2018 U.S. Dist. 49996, at *9-10 (citing CIGNA Corp., 563

U.S. at 435-36). Although Plaintiff is correct that the Plan

references the definition of disability found in the Social

Security Act and its implementing regulations, it does not

reference the regulations concerning a “period of trial work.”

The Court cannot read those terms into the DRP provisions now.

It seems obvious that the Plan would be more comprehensive

and better anticipate potential conflicts with the Social

Security Act and its implementing regulations it if expressly

addressed how the Plan would address “period of trial work”

cases implicating 42 U.S.C. § 422(c) and the relevant

regulations. It would certainly be a benefit to employees. And

it also seems clear that if the Plan were written to allow – or

not disallow – DRP payments during a period of trial work a

powerful private disincentive to participate in a public program

designed to help people return to work would be eliminated. But

that is a policy choice and, perhaps more importantly, a subject

this Court should leave to the negotiating table. For the Court

to read such a provision into the Plan now would be to strike a

better bargain than the one reached between the union and the

employer. That the Court cannot do.

Accordingly, the Court finds there was no abuse of

discretion in terminating Plaintiff’s DRP between August 2013

and April 2014 on the basis of either subsection (a) or (b).

c. Whether Defendant Abused Its Discretion in Terminating

Plaintiff’s DRP after Plaintiff Ended Her Period of

Trial Work

The third argument presented by Plaintiff is not whether

the Plan is ambiguous or whether termination was inappropriate,

but whether Plaintiff qualified for a DRP subsequent to her

leaving Acme in April 2014. Plaintiff argues she still

qualified for a DRP because, at the time she left Acme, she was

still deemed disabled by the SSA and still received SSDB.

Defendant argues Plaintiff was not qualified for a DRP because

she never submitted new documents from the SSA concerning the

second injury. Plaintiff counters because she was already

deemed disabled, no new documents would be produced by the SSA

based on the new injury.

For context, the Court restates the DRP eligibility

provision from the Plan:

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.

(FUND0069.)9

The record clearly supports that Plaintiff had a “Total and

Permanent Disability” as defined by the Plan. In May 2014,

Plaintiff was considered disabled by the SSA and was still

receiving SSDB. Plaintiff is correct that the “period of trial

work” she completed did not change her status. This is a

question of law, does not rely on any disputed record fact, and

may be determined easily by an examination of the appropriate

regulations.

Plaintiff was eligible to complete a period of trial work.

20 C.F.R. § 404.1592(a), (d), (e) (explaining the definition of

9 There is no dispute that Plaintiff had the requisite credits.

a trial work period, that SSDB recipients are eligible, and that

the trial work period begins the month of entitlement to SSDB);

Mehalschick v. Comm’r Soc. Sec., 609 F. App’x 710, 711 (3d Cir.

2015) (acknowledging that individuals may pursue a period of

trial work under 20 C.F.R. § 404.1592, without loss of

benefits); Karlson v. Colvin, 17 F. Supp. 3d 432, 436 n.1

(D.N.J. 2014) (“Social Security Regulations allow benefit

recipients to undertake a nine-month ‘trial work period’ to

assess whether they are capable of engaging in substantial

gainful activity. 20 C.F.R. § 404.1592.”). Under the

regulations, because Plaintiff was eligible for SSDB, she was

eligible to complete a period of trial work beginning when her

entitlement to SSDB began. Her entitlement began in June 2013

and she worked in August 2013. She satisfies 20 C.F.R. §

404.1592.

When an individual completes a period of trial work, the

individual may lose their benefits. Plaintiff did not lose her

disability status or SSDB because she did not complete a period

of trial work. That would have required Plaintiff to work nine

months within a sixty-month period, which she did not do. See 42

U.S.C. § 422(c)(4)(A) (“A period of trial work for any

individual shall end . . . [in] the ninth month, in any period

of 60 consecutive months, in which the individual renders

services (whether or not such nine months are consecutive).”).

See also 42 U.S.C. § 423(a)(1)(E) (“For purposes of the

preceding sentence, the termination month for any individual

shall be . . ., in the case of an individual who has a period of

trial work which ends as determined by application of section

422(c)(4)(A) of this title, the termination month shall be the

earlier of (I) the third month following the earliest month

after the end of such period of trial work with respect to which

such individual is determined to no longer be suffering from a

disabling physical or mental impairment, or (II) the third month

following the earliest month in which such individual engages or

is determined able to engage in substantial gainful activity . .

. .”).

As is clear, Plaintiff was eligible for a period of trial

work, that period of trial work was not considered in assessing

whether she suffered from a continuing disability, and she never

completed the period of trial work so did not lose her

disability status or SSDB. See 42 U.S.C. § 422(c)(2) (“[A]ny

services rendered by an individual during a period of trial work

shall be deemed not to have been rendered by such individual in

determining whether [her] disability has ceased in a month

during such period.”).

Defendant did not initially find Plaintiff was completing a

period of trial work and therefore erroneously concluded

Plaintiff was no longer deemed disabled by the SSA and receiving

SSDB. Defendant also erroneously concluded Plaintiff did not

meet the definition of “Total and Permanent Disability” under

the Plan. If this was the basis for Defendant’s decision to

deny Plaintiff a DRP in May 2014, the Court would find it was an

abuse of discretion as it was clearly erroneous.

But, this was not the basis for Defendant’s decision. The

basis was that Plaintiff had not presented a separate disability

award from the SSA proving disability stemming from her second

work-related injury. This basis for denying Plaintiff benefits

is wholly unsupported in the text of the Plan. There is no

provision requiring a new disability to be presented after

termination of an initial grant of a DRP. The only requirements

are those listed supra, in the Plan provision. This was an

abuse of discretion by Defendant because it is not a requirement

within the text.

The final question, therefore, is whether Plaintiff has

provided proof of disability as contemplated by the text of the

Plan. Plaintiff has. The Plan states:

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.

It appears that, at least in this case, Defendant has

interpreted “Certificate of Award” not as requiring a document

from the SSA entitled so, but merely as requiring an official

SSA document showing entitlement to an award. Defendant granted

Plaintiff DRP in July 2013 based on a document entitled “Notice

of Award,” so it is clear Defendant has not strictly construed

this requirement. Therefore, because Plaintiff’s counsel

provided a document from the SSA showing Plaintiff was still

entitled to SSDB and Plaintiff originally provided the Notice,

Plaintiff has met this requirement.

These documents show Plaintiff was entitled to SSDB within

twenty-four months of her last day of work, April 2014, because

they show Plaintiff was entitled to benefits starting in June

2013 until, at least, October 25, 2016. Moreover, based on this

Court’s finding concerning Plaintiff’s period of trial work,

Plaintiff has been continuously disabled per the SSA since June

2013 and has been receiving SSDB. The Court finds Defendant’s

denial of a DRP was an abuse of discretion. Defendant’s

interpretation of the Plan’s DRP provisions was wholly without

reason, as it instituted requirements of eligibility that it had

not previously required or that were not contained within the

text of the Plan.

Accordingly, this Court grants Plaintiff’s Motion for

Summary Judgment because Plaintiff has shown Defendant abused

its discretion and that she was entitled to a DRP starting in

May 2014.

CONCLUSION

For the foregoing reasons, the Court will grant Plaintiff’s

Motion for Summary Judgment, in part, and deny it, in part. The

Court will also grant Defendant’s Motion for Summary Judgment,

in part, and deny it, in part. The Court will instruct the

parties to file a joint letter informing it of whether discovery

is necessary for the issue of damages or whether briefing is

appropriate.

An appropriate Order will be entered.

Date: June 27, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.