Whitley v. Building Service 32BJ Health Fund

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MARIA WHITLEY,

Plaintiff,

MEMORANDUM & ORDER

- against - 19-CV-2665 (PKC) (CLP)

BUILDING SERVICE 32BJ HEALTH FUND

and BUILDING SERVICE 32BJ PENSION

FUND,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Maria Whitley, proceeding pro se, brought this action in the Supreme Court of

New York, Queens County, against Defendants Building Service 32BJ Health Fund (“Health

Fund”) and Building Service 32BJ Pension Fund (“Pension Fund”)—collectively, “Defendants”

or “the Funds”—alleging that Defendants improperly denied her disability benefits. Defendants

timely removed the action to this Court, and they now move for summary judgment. For the

reasons set forth below, the Court grants Defendants’ motion for summary judgment and dismisses

this action.

BACKGROUND

I. The Funds

Defendants Health Fund and Pension Fund are jointly administered benefit funds

established pursuant to the Taft-Hartley Act, 29 U.S.C. § 186. (Defendants’ 56.1 Statement

(“Defs.’ 56.1”), Dkt. 26-4, ¶ 2.1). The Funds provide various welfare and pension benefits to

1 Unless otherwise noted, a standalone citation to a party’s 56.1 statement denotes that the

Court has deemed the underlying factual allegation undisputed. Any citation to a 56.1 statement

incorporates by reference the documents cited therein; where relevant, however, the Court may

cite directly to an underlying document. The Court has deemed facts averred in a party’s 56.1

employees of participating employers. (Id. ¶ 3.) Each of the funds is governed by an Agreement

and Declaration of Trust (“Trust Agreement”) and administered by a Board of Trustees comprised

of an equal number of management and union representatives. (Id. ¶¶ 2–3.) In accordance with

the Trust Agreements of both funds, the Trustees have the power to “adopt a Plan” and to “pay or

provide for the payment of Benefits in accordance with the Plan[.]” (See A.R.2 16 (Health Fund

Trust Agreement), 163 (Pension Fund Trust Agreement).) Additionally, the Trustees have the

power to “process and approve or deny claims for the payment of Benefits, determining whether

the conditions for the payment of Benefits . . . have been fulfilled and whether any exceptions or

exclusions are applicable.” (See id.) The Trustees also have the power to “decide, in [their] sole

discretion, all questions (both factual and legal) relating to the eligibility or rights of Participants

or Beneficiaries for Benefits . . . and the amount and kind of all Benefits to be paid,” as well as the

power to “interpret, in [their] sole discretion, all terms in” the Funds’ Trust Agreements and plan

documents, “including the resolution or clarification of any ambiguities, omissions, or

inconsistencies.” (See id.)

statement to which the opposing party cites no admissible evidence in rebuttal as undisputed. See

Lumbermens Mut. Cas. Co. v. Dinow, No. 06-CV-3881 (TCP), 2012 WL 4498827, at *2 n.2

(E.D.N.Y. Sept. 12, 2012) (“Local Rule 56.1 requires . . . that disputed facts be specifically

controverted by admissible evidence. Mere denial of an opposing party’s statement or denial by

general reference to an exhibit or affidavit does not specifically controvert anything.”).

Additionally, to the extent a party’s 56.1 statement “improperly interjects arguments and/or

immaterial facts in response to facts asserted by [the opposing party] without specifically

controverting those facts,” the Court has disregarded the statement. Risco v. McHugh, 868 F.

Supp. 2d 75, 85 n.2 (S.D.N.Y. 2012).

2 “A.R.” refers to the administrative record filed with the Court, which includes the Funds’

governing documents as well as documents related to Plaintiff’s various applications for benefits.

(Dkt. 11.) Although the administrative record is filed in multiple attachments, it is continuously

paginated. (See Dkt. 11-1 (A.R. 1–148); Dkt. 11-2 (A.R. 149–296); Dkt. 11-3 (A.R. 297–444).)

As relevant here, the Health Fund provides qualified participants with a long-term

disability benefit (“LTD Benefit”), while the Pension Fund provides a disability pension

(“Disability Pension”). (Defs.’ 56.1, Dkt. 26-4, ¶ 6.) According to the Health Fund’s Summary

Plan Description (“SPD”), to qualify for an LTD Benefit, a participant must “become totally

disabled while working in covered employment.” (A.R. 93.) Total disability “means [the

participant is] unable to work in any capacity as a result of bodily injury or disease.” (Id.)

Moreover, to qualify, the participant must have “had at least 36 consecutive months of eligibility

in the [Health Fund] as a result of covered employment, and the 36 consecutive months of

eligibility were immediately prior to the date [the participant] stopped working due to the

disability.” (Id.) The SPD tells participants that “[a] claim for LTD benefits should be filed as

soon as possible, but not later than 9 months after [their] last day worked due to the disability.”

(A.R. 98.) Indeed, after this nine-month period, “it will be presumed that [the participant] did not

become totally disabled while [they] were working in covered employment, unless [they] can

provide the Fund with clear and convincing evidence otherwise.” (Id.)

The requirements for a Disability Pension under the Pension Fund are more onerous. As

the Pension Fund’s SPD makes clear, a participant is “eligible for a Disability Pension if [they]

have at least 120 months (10 years) of Service Credit and [they] become totally and permanently

disabled while working in covered employment.” (A.R. 217 (emphasis added).) The SPD gives

the following explanation of what it means to become totally and permanently disabled:

Total and permanent disability is the permanent inability to work in any capacity,

as determined by the Trustees or persons they designate. You will not satisfy this

definition of total and permanent disability just because you are unable to continue

in your usual occupation; you must be forever unable to perform any gainful

employment to meet this Plan requirement. If you first apply for your Disability

Pension more than 9 months after your covered employment ended, you will have

to provide clear and convincing evidence that you became totally and permanently

disabled while you were still in covered employment (otherwise you would not be

eligible for the Disability Pension).

(Id.) In December 2010, however, the Pension Fund’s SPD was updated. (See Defs.’ 56.1, Dkt.

26-4, ¶ 11; A.R. 251.) This update to the SPD added that a participant would be considered totally

and permanently disabled for purposes of a Disability Pension if they submitted “a certification of

a permanent disability benefit award from the Social Security Administration [“SSA”] showing

that [their] disability was found to have commenced while [they] were working in Covered

Employment[.]” (A.R. 270.) Yet, the Trustees also retained discretion to deem a participant totally

and permanently disabled on the basis of “satisfactory” medical evidence, even without

certification of a permanent disability benefit award from the SSA. (See id.) A participant who

qualifies for a Disability Pension under the Pension Fund is not allowed to collect LTD Benefits

at the same time from the Health Fund. (See Defs.’ 56.1, Dkt. 26-4, ¶ 13.)

Both funds provide a process for appealing denied claims. As the Funds’ SPDs specify, a

participant may appeal the denial of a claims application within 180 days of receiving notice of

the denial. (See A.R. 101 (Health Fund SPD), 237 (Pension Fund SPD).) The SPDs also state

explicitly that a participant must complete the administrative appeals process before filing an

action in court against the Funds. (A.R. 101 (“You must file an appeal with the appropriate party

and follow the process completely before you can bring an action in court.”), 237 (“You must file

an appeal before you can file any kind of legal action to review the denial of benefits.”).)

II. Plaintiff’s Applications for Benefits

Plaintiff was employed in the building services industry and a member of the Service

Employees International Union, Local 32BJ (“Union”), for over 19 years, between December 1984

and March 2004. (See Defs.’ 56.1, Dkt. 26-4, ¶ 13; see also Complaint, Dkt. 1-1, at ECF3 2; A.R.

403–04 (certifying that Plaintiff was a Union member as of December 19, 1984).) Pursuant to

collective bargaining agreements with the Union, Plaintiff was entitled to health benefits from the

Health Fund and pension benefits from the Pension Fund. (Defs.’ 56.1, Dkt. 26-4, ¶ 13.)

On March 16, 2004, Plaintiff suffered an injury on the job while taking out the trash. (See

Complaint, Dkt. 1-1, at ECF 2; Defs.’ 56.1, Dkt. 26-4, ¶ 16.) Relying on Plaintiff’s Workers’

Compensation report, filed shortly after the incident, Defendants take the view that “something

fell & hit [Plaintiff’s] left leg, left arm & lower back” while she was taking out garbage. (A.R.

363; see also Defs.’ 56.1, Dkt. 26-4, ¶ 16.) Plaintiff, however, avers that she “fell” and “hurt [her]

neck and back right side.” (Plaintiff’s 56.1 Statement (“Pl.’s 56.1”), Dkt. 32, ¶ 16.) Plaintiff

stopped working shortly thereafter. (See Complaint, Dkt. 1-1, at ECF 2; see also A.R. 350

(indicating that Plaintiff’s last date of work was March 16, 2004, and her covered employment

ended on April 2, 2004).)

In June 2007, following Plaintiff’s application for Social Security Disability Insurance

Benefits (“DIB”), an SSA administrative law judge (“ALJ”) determined that Plaintiff qualified for

DIB under the Social Security Act. (A.R. 362.) According to the ALJ, Plaintiff “was injured at

work in March 2004, during a slip and fall accident,” causing her to suffer “back and neck pain.”

(A.R. 359–60.) The ALJ observed that “[t]wo days after the accident,” a doctor prescribed that

Plaintiff wear a “cervical collar” and “should not perform any strenuous activity for ten days.”

(A.R. 359.) Ultimately, with respect to Plaintiff’s physical capability, the ALJ found that Plaintiff

“retain[ed] the residual functional capacity to perform a narrow range of light work.” (A.R. 360.)

3 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

Based on the medical evidence, however, the ALJ also found that, beginning on August 22, 2005,

Plaintiff suffered from “a severe psychological disorder in addition to her back and neck pain,

significantly affecting her concentration and ability to deal with competitive work stress.” (Id.)

Accordingly, the ALJ determined that the combination of Plaintiff’s “physical residual functional

capacity” and her “non-exertional psychological limitations as of August 22, 2005,” rendered

Plaintiff disabled under the SSA’s regulations as of August 22, 2005. (Id.; see also A.R. 361.)

The ALJ therefore concluded that, “based on the application filed on March 17, 2005, [Plaintiff

was] entitled to a period of disability commencing August 22, 2005, and to Disability Insurance

Benefits” under the Social Security Act. (A.R. 362.) But the ALJ also noted that “[Plaintiff]’s

medical condition may improve,” and that the SSA would “perform a reexamination in one to two

years, to determine whether medical improvement ha[d] occurred.” (Id.) On July 16, 2007, the

SSA mailed a Notice of Award to Plaintiff, detailing the amount of her DIB and telling Plaintiff

that her case would be reviewed in June 2009 because “[t]he doctors and other trained personnel

who decided that you are disabled expect your health to improve.”4 (A.R. 314, 317.)

Subsequently, on October 15, 2007, Plaintiff submitted an application to Defendants for

disability benefits,5 asserting a total disability beginning “March 16, 2004—[the] date [she] last

worked.” (See A.R. 324; Defs.’ 56.1, Dkt. 26-4, ¶ 15.) Plaintiff explained on her application that

“[t]he pain disorder and physical condition that I’m suffering is making me unable to work.” (A.R.

4 The record is silent as to whether the SSA reviewed Plaintiff’s case in June 2009, or

whether Plaintiff continued to receive DIB after June 2009.

5 Plaintiff avers that she presented an application in person in December 2004. (Pl.’s 56.1,

Dkt. 32, ¶ 17.) This alleged December 2004 application is not in the record. The only evidence

in the record is a letter from the Pension Fund, dated December 8, 2004, indicating that Plaintiff

had requested a pension application and enclosing instructions and information regarding

Plaintiff’s pension benefits. (See Dkt. 22, at ECF 18–21.)

324.) Included with Plaintiff’s application was an Attending Physician’s Statement of Disability,

prepared by psychologist Dr. Nicholas Radcliffe, indicating that Plaintiff’s “primary restrictions

are related to [her] physical condition, but her psychological condition amplifies her difficulties.”

(A.R. 325.)

On November 15, 2007, Defendants sent Plaintiff a letter advising her that further

documentation was required to show that Plaintiff had become totally disabled while working in

covered employment, particularly given that more than nine months had passed since her covered

employment ended in 2004.6 (A.R. 353–54; see also Defs.’ 56.1, Dkt. 26-4, ¶ 17.) In response to

the letter, Plaintiff submitted the ALJ’s June 2007 decision awarding DIB, along with some of the

medical evidence underlying the ALJ’s decision. (See Defs.’ 56.1, Dkt. 26-4, ¶¶ 19–23; A.R. 327–

345; see also A.R. 359–60 (ALJ describing medical evidence).) These medical records submitted

to Defendants included a medical source statement from Dr. Radcliffe, dated February 9, 2007,

stating that Plaintiff was “suffering from psychological distress including deficits of attention and

concentration, depression and anxiety as a result of the 3-16-04 accident,” and that the onset date

of these problems was August 22, 2005. (A.R. 337.) The medical records also included a

psychiatric evaluation, dated December 16, 2006, finding “stress related and physical problems

[that] may significantly interfere with [Plaintiff’s] ability to function on a daily basis.” (A.R. 338,

340.) Further, the medical records included a two-page “Medical Source Statement of Ability To

Do Work-Related Activities (Mental)” stating that Plaintiff suffered from “anxiety + depression

secondary to physical limitations” and that she could not stand for long periods of time. (A.R.

6 Defendants’ November 15, 2007 letter mistakenly indicated that Plaintiff needed to

establish total disability as of December 18, 2006, rather than as of the date that Plaintiff’s covered

employment ended in 2004. (See Defs.’ 56.1, Dkt. 26-4, ¶ 18; see also A.R. 350–54.) On

December 20, 2007, Defendants sent Plaintiff an amended letter correcting this mistake. (A.R.

350–52.)

342–43.) Finally, the medical records included a residual functional capacity questionnaire

prepared by neurologist Dr. Lyzette Velazquez, who had treated Plaintiff since July 2004,

indicating, among other things, that Plaintiff had a limited range of motion, could walk two to

three city blocks without rest or severe pain, could regularly take public transportation, could sit

for 20 minutes and stand for 30 minutes at one time, did not have to use a cane or other assistive

device, and during an 8-hour work day would have to take unscheduled 10-minute breaks

approximately every one to two hours. (A.R. 327–33; see also A.R. 359.)

On February 1, 2008, Defendants denied Plaintiff both an LTD Benefit and Disability

Pension. (Defs.’ 56.1, Dkt. 26-4, ¶ 24; see also A.R. 348–49.) Defendants explained that Plaintiff

was being denied LTD benefits “because the information provided by you and your physician

shows that your psychological issues developed after you left covered employment. Additionally,

you did not provide sufficient information . . . to show that your pain disorder associated with

general medical condition [sic] makes you unfit to work in any capacity.” (A.R. 348.) Defendants

gave substantially the same explanation for denying Plaintiff a Disability Pension. (See id.)

Although Defendants’ denial letter made clear that Plaintiff had “the right to appeal” within 180

days, and that Plaintiff “must . . . first exhaust the Plan’s appeal procedure” before pursuing an

action in court, Plaintiff did not appeal Defendants’ February 1, 2008 decision. (See A.R. 349;

Defs.’ 56.1, Dkt. 26-4, ¶ 26.) Plaintiff does not dispute her failure to appeal the February 1, 2008

decision, but rather simply states that “it was stressing me too much.” (Pl.’s 56.1, Dkt. 32, ¶ 26.)

Nearly three years later, on January 6, 2011, Plaintiff submitted a second application to

Defendants for disability benefits, again claiming a total disability based on the accident at work

on March 16, 2004. (Defs.’ 56.1, Dkt. 26-4, ¶ 27; see also A.R. 313.) Included with the application

was the July 2007 Notice of Award from the SSA, discussed above, stating that the SSA had found

that Plaintiff “became disabled under [its] rules on August 22, 2005.” (See A.R. 314; see also

Defs.’ 56.1, ¶ 27.) Accordingly, on February 7, 2011, Defendants again denied Plaintiff both an

LTD Benefit and Disability Pension—reasoning, like the first time, that Plaintiff did not become

totally disabled until 2005, after her covered employment had ended in 2004. (See A.R. 320–21.)

As with Plaintiff’s first application, Defendants’ denial letter detailed Plaintiff’s right to appeal the

decision within 180 days and explained that Plaintiff had to exhaust appeal procedures before

pursuing an action in court, but Plaintiff did not appeal. (See A.R. 321–22; see also Defs.’ 56.1,

Dkt. 26-4, ¶¶ 31–32.) Although Plaintiff does not dispute this fact, Plaintiff avers that she “was

already having a very heavy hard time,” and appealing “was too much for [her] and [she] was tired

of going through all the circumstances of not having a job, not having money, losing [her]

apartment, and losing certain family members.” (See Pl.’s 56.1, Dkt. 32, ¶¶ 31–32.)

In 2014, Plaintiff applied for and was awarded a regular pension from the Pension Fund of

$392 per month, which was subsequently increased to $479 per month after Plaintiff was credited

with additional pension service credits. (See Defs.’ 56.1, Dkt. 26-4, ¶¶ 33–34; see also A.R. 365–

78.) In August 2018, Plaintiff wrote to Defendants to assert that she was entitled to a higher

pension because of missing pension credits. (Defs.’ 56.1, Dkt. 26-4, ¶ 35; see also A.R. 401.)

Defendants replied and advised Plaintiff that she had already been credited with the additional

service credits. (Defs.’ 56.1, Dkt. 26-4, ¶ 35; see also A.R. 395–400.)

III. The Current Proceedings

Plaintiff, proceeding pro se, filed the present action in the Supreme Court of New York,

Queens County, on March 7, 2019. (See Complaint, Dkt. 1-1, at ECF 4–5.) Plaintiff alleges that

Defendants denied her disability benefits “without issuing a valid reason,” and she requests that

Defendants “be ordered to provide [her] with the disability benefits that [she] is due[.]” (Id. at

ECF 2–3.)

On May 6, 2019, Defendants removed the action to this Court on the basis that it arises

under Section 502(a) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1132(a). (See Dkt. 1.) See generally 29 U.S.C. § 1132(a)(1)(B) (“A civil action may be

brought by a participant or beneficiary to recover benefits due to him under the terms of his plan,

to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the

terms of the plan[.]”). Following brief discovery, Defendants moved for summary judgment,

arguing that Plaintiff’s claims were not properly exhausted, are time-barred, and in any event fail

on the merits. (See Defendants’ Memorandum of Law in Support of Motion for Summary

Judgment (“Defs.’ MSJ”), Dkt. 26-5, at 12–18.) After several extensions of time, Plaintiff filed

an opposition to the motion (see Dkts. 13–22), to which Defendants replied (Dkt. 26-7).

DISCUSSION

I. Legal Standard

Summary judgment is appropriate when “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986) (noting that the summary judgment inquiry is

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law”). A dispute of fact is “genuine”

if the record evidence, viewed in the light most favorable to the nonmoving party, “is such that a

reasonable jury could return a verdict for the nonmoving party.” See Anderson, 477 U.S. at 248;

see also id. at 255 (“The evidence of the non-movant is to be believed, and all justifiable inferences

are to be drawn in his [or her] favor.”). A mere “scintilla of evidence” in support of the nonmoving

party is insufficient; “there must be evidence on which the jury could reasonably find for the [non-

movant].” Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003) (alteration in original)

(internal quotation and citation omitted). Moreover, “[o]nly disputes over facts that might affect

the outcome of the suit under the governing law will properly preclude the entry of summary

judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477

U.S. at 248 (citation omitted). Thus, “the mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Id. at 247–48 (emphases in

original).

When considering a dispositive motion made by or against a pro se litigant, the Court is

mindful that a pro se party’s pleadings must be “liberally construed” in favor of that party and “are

held ‘to less stringent standards than formal pleadings drafted by lawyers.’” Hughes v. Rowe, 449

U.S. 5, 9–10 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). The

Second Circuit “liberally construe[s] pleadings and briefs submitted by pro se litigants, reading

such submissions to raise the strongest arguments they suggest.” Bertin v. United States, 478 F.3d

489, 491 (2d Cir. 2007) (internal quotation marks and citations omitted). Nevertheless,

“[p]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary

judgment, and a pro se party’s bald assertions unsupported by evidence, are insufficient to

overcome a motion for summary judgment.” Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348

(S.D.N.Y. 2002) (citation omitted).

“Courts reviewing a challenge of denial of benefits under ERISA may do so on a motion

for summary judgment, which provides an appropriate vehicle whereby the Court can apply

substantive ERISA law to the administrative record.” Zarringhalam v. United Food & Com.

Workers Int’l Union Local 1500 Welfare Fund, 906 F. Supp. 2d 140, 155 (E.D.N.Y. 2012) (internal

quotation marks and citation omitted).

II. Exhaustion

Defendants first argue that summary judgment in their favor is warranted because Plaintiff

failed to exhaust her administrative remedies prior to commencing suit. “[T]he federal courts—

including [the Second] Circuit—have recognized a ‘firmly established federal policy favoring

exhaustion of administrative remedies in ERISA cases.’” Paese v. Kennedy Life & Accident Ins.

Co., 449 F.3d 435, 443 (2d Cir. 2006) (quoting Kennedy v. Empire Blue Cross & Blue Shield, 989

F.2d 588, 594 (2d Cir. 1993)). This exhaustion requirement, as the Second Circuit has

acknowledged, serves a number of purposes: (1) to “uphold Congress’ desire that ERISA trustees

be responsible for their actions, not the federal courts”; (2) to “provide a sufficiently clear record

of administrative action if litigation should ensue”; (3) to “assure that any judicial review of

fiduciary action (or inaction) is made under the arbitrary and capricious standard, not de novo”;

(4) to “help reduce the number of frivolous lawsuits under ERISA”; (5) to “promote the consistent

treatment of claims for benefits”; (6) to “provide a nonadversarial method of claims settlement”;

and (7) to “minimize the costs of claims settlement for all concerned.” Kennedy, 989 F.2d at 594

(citing Denton v. First Nat’l Bank of Waco, Tex., 765 F.2d 1295, 1300 (5th Cir. 1985); Amato v.

Bernard, 618 F.2d 559, 567 (9th Cir. 1980)). Thus, it is well-settled that “exhaustion of

administrative remedies provided under a benefit plan is a prerequisite to filing an action which

arises under ERISA.” Shamoun v. Bd. of Trustees, 357 F. Supp. 2d 598, 602 (E.D.N.Y. 2005)

(collecting cases); see also Klotz v. Xerox Corp., 332 F. App’x 668, 669 (2d Cir. 2009) (summary

order) (collecting cases); Zarringhalam, 906 F. Supp. 2d at 152 (collecting cases). Nonetheless,

where a plaintiff “make[s] a clear and positive showing that pursuing available administrative

remedies would be futile, the purposes behind the requirement of exhaustion are no longer served,”

and the failure to exhaust may be excused. Kennedy, 989 F.2d at 594 (internal quotation marks

and citation omitted); accord Zarringhalam, 906 F. Supp. 2d at 152–53.

Here, the Funds indisputably provide a process for appealing the denial of claims, and the

SPDs make clear that a claimant must file an internal appeal before bringing an action in court.

(See A.R. 101, 237.) Additionally, in denying Plaintiff disability benefits in 2008 and 2011,

Defendants both times explicitly informed Plaintiff of her right to appeal within 180 days of

receiving notice and notified her of the requirement to exhaust appeal procedures before filing an

action in court. (A.R. 349 (February 1, 2008 claim-denial letter to Plaintiff stating, “You or your

authorized representative have the right to appeal this decision by filing a written appeal with the

Appeals Committee of the Board of Trustees within 180 days of receiving this notice. . . . You

must, however, first exhaust the Plan’s appeal procedure before you can pursue an action in

court.”); see also A.R. 321–22 (February 7, 2011 claim-denial letter to Plaintiff stating the same).)

Plaintiff did not appeal the denial of benefits in 2008 or 2011, and therefore did not exhaust

available administrative remedies. (Defs.’ 56.1, Dkt. 26-4, ¶¶ 26, 32.)

Plaintiff does not dispute her failure to exhaust administrative remedies; rather, she

explains that “it was stressing [her] too much,” and further action was “too much” for her to handle

at the time because she “was already having a very heavy hard time.” (See Pl.’s 56.1, ¶¶ 26, 31–

32.) This explanation, however, provides no “clear and positive showing” that pursuing available

administrative remedies would have been futile. See Kennedy, 989 F.2d at 594. Indeed, it is not

clear why Plaintiff was able to twice file applications for disability benefits but unable to file an

appeal when those applications were denied.

Plaintiff also argues that the period for her to submit an administrative appeal should be

equitably tolled “on account of the onset of her Major Depression.” (Plaintiff’s Memorandum in

Opposition to the Motion for Summary Judgment (“Pl.’s Opp.”), Dkt. 22, at ECF 2.) This

argument is unavailing because Plaintiff never sought to file an appeal that was denied as untimely.

Therefore, even if the Court were to agree that any deadline to file an administrative appeal with

the Funds should be equitably tolled on account of Plaintiff’s psychological limitations,7 there

would still be no grounds to conclude that pursuing an administrative appeal would have been

futile. The cases that Plaintiff cites (see id.) are inapposite, as they all either involve plaintiffs who

actually attempted to exhaust administrative remedies, but were unsuccessful because their appeals

were untimely, or do not address equitable tolling in the context of an exhaustion requirement, but

rather address the issue in a different context, such as the statute of limitations. See Zerilli-

Edelglass v. N.Y.C. Transit Auth., 333 F.3d 74, 80–81 (2d Cir. 2003); Chapman v. ChoiceCare

Long Island Term Disability Plan, 288 F.3d 506, 511–14 (2d Cir. 2002); Brown v. Parkchester

South Condos., 287 F.3d 58, 59–61 (2d Cir. 2002); Boos v. Runyon, 201 F.3d 178, 184–85 (2d Cir.

2000). Thus, Plaintiff’s equitable-tolling argument does not provide a basis for excusing her

failure to exhaust administrative remedies.

Finally, Plaintiff argues that Defendants “engaged in a course of conduct[] of

misrepresenting and giving [her] inaccurate and false information as to her rights under the

respective contract[s].” (Pl.’s Opp., Dkt. 22, at ECF 2; see also id. at ECF 3 (asserting that

Defendants provided Plaintiff “misleading” information and “misstatements”).) However, no

reasonable factfinder could find that Plaintiff was provided inaccurate or misleading information

with respect to the need to exhaust administrative remedies before challenging any denial of

disability benefits in court. The letters that Plaintiff received from Defendants denying her

applications for disability benefits in 2008 and 2011 clearly and accurately state that Plaintiff had

the right to appeal—and, indeed, had to appeal before pursuing any action in court. (See A.R.

7 The Court makes no determination as to whether any deadline to file an administrative

appeal with the Funds should be equitably tolled in Plaintiff’s case on account of her psychological

limitations, or otherwise.

321–22, 349 (denial letters outlining the Funds’ appeal procedures); see also A.R. 101–03, 237–

38 (SPDs describing the Funds’ appeal procedures).) Plaintiff provides no evidence that she was

provided false or misleading information about the Funds’ appeals process.

In short, Plaintiff indisputably failed to exhaust administrative remedies, and Plaintiff fails

to show any genuine dispute as to any fact that would establish that pursuing administrative

remedies would have been futile, such that waiver of the exhaustion requirement would be

warranted. Accordingly, Defendants are entitled to summary judgment on this basis. See

Anderson, 477 U.S. at 248; Klotz, 332 F. App’x at 669–70; Kennedy, 989 F.2d at 594.

III. Merits

Even if, however, the Court were to conclude that waiver of the exhaustion requirement is

appropriate in this case, Defendants would still be entitled to summary judgment on the merits of

Plaintiff’s claims, and the Court therefore grants Defendants’ motion on this alternative basis.8

8 Defendants also argue that summary judgment in their favor is warranted because

Plaintiff’s suit is time-barred. In an action such as this one to recover benefits under 29 U.S.C.

§ 1132(a)(1)(B), New York’s six-year statute of limitations applies. Burke v. PWHC LLP Long

Term Disability Plan, 572 F.3d 76, 78 (2d Cir. 2009) (per curiam) (citing Miles v. N.Y. State

Teamsters Conf. Pension & Ret. Fund Emp. Pension Benefit Plan, 698 F.2d 593, 598 (2d Cir.

1983)). Here, Plaintiff filed suit on March 7, 2019—over eleven years after her first denial of

disability benefits in 2008, and over eight years after her second denial of disability benefits in

2011. (See Complaint, Dkt. 1-1, at ECF 5; see also A.R. 320 (February 7, 2011 denial letter), 348

(February 1, 2008 denial letter).) Statutes of limitations, however, “are generally subject to

equitable tolling where necessary to prevent unfairness to a plaintiff who is not at fault for her

lateness in filing,” although this type of relief “is an extraordinary measure that applies only when

plaintiff is prevented from filing despite exercising that level of diligence which could reasonably

be expected in the circumstances.” Veltri v. Building Serv. 32B-J Pension Fund, 393 F.3d 318,

322 (2d Cir. 2004) (citations omitted). The Second Circuit has indicated that “equitable tolling

may be appropriate where the plaintiff’s failure to comply with the statute of limitations is

attributable to the plaintiff’s medical condition.” Brown, 287 F.3d at 60. Plaintiff argues that the

statute of limitations should be tolled in this case on account of her depression and lack of mental

competence during the limitations period. (Pl.’s Opp., Dkt. 22, at ECF 2.) Defendants respond

that Plaintiff fails to establish a causal connection between her psychological limitations and her

delay in filing suit. (Defendants’ Reply (“Defs.’ Reply”), Dkt. 26-7, at ECF 4–5.) For present

purposes, the Court assumes, without deciding, that the limitations period has been tolled.

A denial of benefits challenged under Section 502(a) of ERISA, 29 U.S.C. § 1132(a), “is

to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary

discretionary authority to determine eligibility for benefits or to construe the terms of the plan.”

Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). Where the plan administrator

is given such discretionary authority, the Court “will not disturb the administrator’s ultimate

conclusion unless it is arbitrary and capricious.” Fuller v. J.P. Morgan Chase & Co., 423 F.3d

104, 106–07 (2d Cir. 2005) (internal quotation marks omitted) (quoting Pagan v. NYNEX Pension

Plan, 52 F.3d 438, 441 (2d Cir. 1995)). Here, the Funds’ trustees, in accordance with the Trust

Agreements, have the “sole discretion” to determine eligibility for benefits and interpret the terms

of plan documents. (See A.R. 16 (Health Fund Trust Agreement), 163 (Pension Fund Trust

Agreement).)

Under arbitrary and capricious review, “[a] court may overturn a plan administrator’s

decision to deny benefits only if the decision was ‘without reason, unsupported by substantial

evidence or erroneous as a matter of law.’” Celardo v. GNY Auto. Dealers Health & Welfare

Trust, 318 F.3d 142, 146 (2d Cir. 2003) (quoting Pagan, 52 F.3d at 442). “Substantial evidence

is ‘such evidence that a reasonable mind might accept as adequate to support the conclusion

reached by the [administrator and] . . . requires more than a scintilla but less than a

preponderance.’” Id. (alterations in original) (quoting Miller v. United Welfare Fund, 72 F.3d

1066, 1072 (2d Cir. 1995)). At the same time, however, “if a benefit plan gives discretion to an

administrator or fiduciary who is operating under a conflict of interest, that conflict must be

weighed as a factor” in reviewing the administrator’s or fiduciary’s decision. Firestone, 489 U.S.

at 115 (internal quotation marks, alteration, and citation omitted). A conflict of interest exists

when “a plan administrator both evaluates claims for benefits and pays benefits claims.” Metro.

Life Ins. Co. v. Glenn, 554 U.S. 105, 112 (2008). Such is the case here. (See A.R. 16, 163.) And

even though the Funds’ trustees are evenly balanced between management and union members

(Defs.’ 56.1, Dkt. 26-4, ¶ 2), that does not negate the conflict of interest, see Durakovic v. Building

Serv. 32BJ Pension Fund, 609 F.3d 133, 139 (2d Cir. 2010). The weight accorded to an existing

conflict of interest “varies in direct proportion to the ‘likelihood that the conflict affected the

benefits decision[.]’” Id. at 139 (alteration omitted) (quoting Glenn, 554 U.S. at 117).

Here, there is no need to determine the weight that should be given to the existing conflict

of interest because even under de novo review, and after resolving all doubts in favor of Plaintiff,

the Court cannot conclude that Plaintiff was wrongfully denied disability benefits. To qualify for

an LTD Benefit under the Health Fund, a claimant must “become totally disabled while working

in covered employment” (A.R. 93), and to qualify for a Disability Pension under the Pension Fund,

a claimant must “become totally and permanently disabled while working in covered employment”

(A.R. 217). Total disability means the claimant is “unable to work in any capacity as a result of

bodily injury or disease.” (A.R. 93; see also A.R. 217 (“Total and permanent disability is the

permanent inability to work in any capacity[.]”).) In both 2008 and 2011, Defendants denied

Plaintiff an LTD Benefit and a Disability Pension because they determined that she did not become

totally disabled while working in covered employment, but rather became totally disabled in 2005,

after leaving covered employment in 2004. (See A.R. 320–22 (February 7, 2011 denial letter),

348–49 (February 1, 2008 denial letter).)

Having thoroughly reviewed the record and afforded Defendants no deference, the Court

cannot conclude that Defendants erred. The Court, like the SSA’s ALJ, accepts that Plaintiff fell

and injured her neck, back, and right side while at work in March 2004. (See A.R. 358–59; see

also Pl.’s 56.1, Dkt. 32, ¶ 16.) Plaintiff indicated on her benefits applications that she last worked

on March 16, 2004, the date of her accident (A.R. 313, 324), and thus, there is no genuine dispute

that Plaintiff’s covered employment ended, as Defendants’ records indicate, on April 2, 2004 (see

A.R. 321, 350).

There is also no genuine dispute that to the extent Plaintiff became totally disabled, such

disability occurred in 2005, after Plaintiff’s covered employment had ended. Regarding Plaintiff’s

physical capability following the accident, the ALJ found that “[t]he evidence supports a finding

that [Plaintiff] retains the residual functional capacity to perform a narrow range of light work.”

(A.R. 360.) This evidence, as recounted by the ALJ, included the fact that after the accident

Plaintiff had to wear a “cervical collar” and avoid “any strenuous activity for ten days,” and a

statement in 2006 by neurologist Dr. Velazquez that “[Plaintiff] was partially disabled, and may

benefit from pain management.” (A.R. 359.) Dr. Velazquez’s residual functional capacity

questionnaire, which Plaintiff submitted to Defendants as part of her first application for disability

benefits, is consistent with the ALJ’s findings regarding Plaintiff’s physical limitations. (See A.R.

327–33; see also Defs.’ 56.1, Dkt. 26-4, ¶ 19; Pl.’s 56.1, Dkt. 32, ¶ 19.) For example, the

questionnaire indicates that Plaintiff had a limited range of motion, could walk two to three city

blocks without rest or severe pain, could sit for 20 minutes and stand for 30 minutes at a time, did

not have to use a cane or other assistive device, and during an 8-hour work day would have to take

10-minute breaks approximately every one to two hours. (A.R. 328–29.) Although the ALJ

concluded that Plaintiff was disabled, the ALJ did so only when considering Plaintiff’s physical

limitations “in combination with non-exertional psychological limitations as of August 22, 2005.”

(A.R. 360.) Accordingly, despite Plaintiff claiming disability as of March 16, 2004, the ALJ

amended the onset date to August 22, 2005. (A.R. 358.) In notifying Plaintiff of the ALJ’s

decision, the SSA informed Plaintiff that it had “found that [she] became disabled . . . on August

22, 2005.” (A.R. 314.)

Nothing in the record rebuts or calls into question the ALJ’s finding that Plaintiff became

disabled in August 2005. In fact, the February 9, 2007 medical source statement of Plaintiff’s

psychologist, Dr. Radcliffe, that Plaintiff submitted as part of her first application for disability

benefits explicitly states that the onset date of Plaintiff’s psychological limitations was August 22,

2005. (See A.R. 337; see also Defs.’ 56.1, Dkt. 26-4, ¶ 20; Pl.’s 56.1, Dkt. 32, ¶ 20.) Moreover,

nothing that Plaintiff submits in opposition to Defendants’ summary judgment motion helps her.

Plaintiff submits several prescriptions, the earliest of which is dated October 12, 2004, and

prescribes Plaintiff Vicodin tablets. (Pl.’s Opp., Dkt. 22, at ECF 12–16.) Plaintiff also submits a

“Psychological Evaluation and Consultation” by psychologist Dr. Howard Rombom, dated August

22, 2005, which is consistent with the ALJ’s findings—indeed, the ALJ discussed and relied upon

Dr. Rombom’s evaluation in concluding that Plaintiff was disabled as of August 22, 2005. (See

id. at ECF 7–10; A.R. 359–60.) Finally, Plaintiff argues that Defendants made “misstatements”

and gave her “misleading” information, and “each time she went to visit their office to try and

apply or get advi[c]e as to what her rights were to the benefits in the plan, she was put off.” (Pl.’s

Opp., Dkt. 22, at ECF 3.) This argument does not help Plaintiff because there is no indication that

Defendants based their denial of disability benefits on any information, misleading or not, that was

relayed to Plaintiff. Rather, Defendants denied Plaintiff disability benefits because they

determined that Plaintiff had not become totally disabled—that is “unable to work in any capacity

as a result of bodily injury or disease”—while in covered employment, which undisputedly had

ended by April 2, 2004. (See A.R. 93, 320–22, 348–49.) While the Court is sympathetic to

Plaintiff’s unfortunate circumstances, even giving Plaintiff the benefit of de novo review and the

benefit of every doubt, the Court concludes that Defendants did not err in their determination.9

CONCLUSION

Defendant’s motion for summary judgment is granted and this action is dismissed. The

Clerk of Court is respectfully directed to enter judgment in favor of Defendants and close this case.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this Memorandum and

Order would not be taken in good faith, and therefore, in forma pauperis status is denied for the

purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: March 4, 2021

Brooklyn, New York

9 Plaintiff requests leave to amend the Complaint to add several claims: (1) wrongful denial

of benefits under ERISA; (2) breach of contract; (3) unjust enrichment; (4) breach of the covenant

of good faith and fair dealing; and (5) unfair trade practices. (Pl.’s Opp., Dkt. 22, at ECF 3.) The

Court denies leave to amend as futile. See Hunt v. All. N. Am. Govt. Income Trust, Inc., 159 F.3d

723, 728 (2d Cir. 1998) (“[I]t is proper to deny leave to replead where there is no merit in the

proposed amendments or amendment would be futile.”). First, the Complaint already asserts a

claim of wrongful denial of benefits under ERISA—this was the basis for Defendants’ removal of

the case (see Notice of Removal, Dkt. 1, ¶ 2), and that claim has now been decided, as discussed

above. Second, the state-law claims that Plaintiff wishes to add are completely preempted by

ERISA because they merely seek “to rectify a wrongful denial of benefits promised under ERISA-

regulated plans, and do not attempt to remedy any violation of a legal duty independent of ERISA.”

Aetna Health Inc. v. Davila, 542 U.S. 200, 214 (2004); see also Paneccasio v. Unisource

Worldwide, Inc., 532 F.3d 101, 114 (2d Cir. 2008) (holding that ERISA preempted plaintiff’s state

common law claims, including breach of contract and breach of the covenant of good faith and fair

dealing); Kolasinski v. Cigna Healthplan of CT, Inc., 163 F.3d 148, 149 (2d Cir. 1998) (per curiam)

(affirming ERISA preemption of plaintiff’s state-law claims of breach of contract and unfair trade

practices); Neurological Surgery, P.C. v. Siemens Corp., No. 17-CV-3477 (ADS) (AKT), 2017

WL 6397737, at *5 (E.D.N.Y. Dec. 12, 2017) (concluding that plaintiff’s “contractual, quasi-

contractual, and unjust enrichment claims” were all preempted by ERISA).