# MCCULLOUGH v. UFCW LOCAL 152 RETAIL MEAT PENSION FUND

> District Court, D. New Jersey · June 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10266265

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10266265

## How later opinions describe it (automated extraction)

- acknowledging that individuals may pursue a period of trial work under 20 C.F.R. § 404.1592, without loss of benefits

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266265. Public record. Not legal advice.