Durakovic v. Bldg. Serv. 32 Bj Pension Fund
Decision Date | 24 June 2010 |
Docket Number | Docket No. 09-3651-cv. |
Citation | 609 F.3d 133 |
Parties | Bejaze DURAKOVIC, Plaintiff-Appellant,v.BUILDING SERVICE 32 BJ PENSION FUND, Building Service 32BJ Health Fund, Building Service 32BJ Benefits Fund, Defendants-Appellees. |
Court | U.S. Court of Appeals — Second Circuit |
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Ira H. Zuckerman (Max D. Leifer, of counsel), New York, NY, for Plaintiff-Appellant.
Ira A. Sturm, Raab, Sturm & Ganchrow, LLP, New York, NY, for Defendants-Appellees.*
Before JACOBS, Chief Judge, WINTER and WALKER, Circuit Judges.
Plaintiff, Bejaze Durakovic, appeals from an August 4, 2009 judgment of the United States District Court for the Eastern District of New York (Block, J.), dismissing her ERISA challenge to a union disability-benefits denial. Durakovic, an office cleaner, suffered chronic pain and weakness in the years following a 1999 automobile accident, and applied for disability benefits from the relevant union funds. When her claim was denied, she filed suit in federal court pursuant to 29 U.S.C. § 1132(a)(1)(B).1 On cross motions for summary judgment, the district court dismissed the suit. We reverse, holding that a fund organized pursuant to 29 U.S.C. § 186(c)(5) is conflicted within the meaning of Metropolitan Life Insurance Company v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008); that the district court should have accorded the conflict in this case more weight; and that no rational trier of fact could have failed to conclude that the benefits denial was arbitrary and capricious.
Bejaze Durakovic emigrated to this country from Yugoslavia in 1971, when she was twenty-four; she never attained more than a sixth-grade education. For thirty-two years, she was an office cleaner at 55 Water Street, in New York City, and a member of the Service Employees International Union, Local 32B-J. In 1999, Durakovic was involved in an automobile accident, but continued to work, reporting chronic pain and weakness. This continued until 2003, when the pain and weakness caused her to cease work.
Durakovic filed a claim for disability benefits with her union pension, health, and benefits funds (the “Funds”) in December 2003. The union disability plan provides benefits to those deemed “totally and permanently unable, as a result of bodily injury or disease, to engage in any further employment or gainful pursuit.” In support of her claim, she submitted reports by two physicians, Dr. Leonard Langman, a neurologist, and Dr. Alan Dayan; and a notice of benefits award from the Social Security Administration, which had found her disabled. On receipt of her benefits application, the Funds sent her to an independent physician, Dr. Ludmilla Bronfin, who also submitted a report.
The Funds denied Durakovic's claim by letter dated March 5, 2004. They determined that Durakovic was not disabled “based on the following medical information: Dr. Ludmilla Bronfin, [the Funds'] panel neurologist, found that [she was] not totally and completely unable to work in any capacity for any occupation.” The letter did not mention any of the evidence submitted by Durakovic.
Durakovic timely appealed the denial. The appeals board sent her to another independent physician, Dr. Ira Rashbaum, who submitted a report that echoed the relevant findings of Dr. Bronfin: Durakovic was “not totally disabled and could attempt to work in a sedentary capacity.” Dr. Rashbaum premised his conclusion on inter alia, a range-of-motion test of her spine and extremities, and a review of her medical records.
The appeals board denied Durakovic's appeal by letter dated December 13, 2004, based additionally on Dr. Rashbaum's report. Shortly thereafter, Durakovic commenced this action pursuant to 29 U.S.C. § 1132(a)(1)(B), challenging the Funds' decision to deny her disability benefits.
On March 20, 2007, the Funds reopened Durakovic's application in light of our decision in Demirovic v. Building Service 32 B-J Pension Fund, 467 F.3d 208 (2d Cir.2006), which arose from a denial of benefits under the same disability plan. In Demirovic, we held that the Funds cannot deem a person able to work (and therefore not “totally disabled”) simply because she is physically capable of performing some job, of whatever type; to be deemed able to work, a person must be able to work in some capacity for which she is vocationally qualified. Id. at 212-16. In the wake of Demirovic, the Funds initiated a vocational review. The administrator forwarded Durakovic's employment files and the reports of the two independent physicians to Apex Rehab Management for review and report. Durakovic also submitted a report from her own vocational rehabilitation consultant, Lynn Jonas.
Apex concluded that Durakovic was vocationally qualified for three occupations: “Jewelry Assembler” and “Food Checker,” both semi-skilled; and one unskilled, the job of “Buttons Assembler.”
The Funds again denied Durakovic's appeal, by letter dated December 10, 2007, premising their decision explicitly on Dr. Rashbaum's conclusion that Durakovic could work “in a sedentary capacity” and on Apex's conclusion that she was capable of performing “several occupations,” including the assembly of buttons:
The Appeals Committee has determined that your condition does not meet the ... eligibility standard based on the following medical and vocational information: Dr. Ira Rashbaum's Independent Medical Evaluation of September 20, 2004 wherein he states that you are able to work in a sedentary capacity; [Apex's] Employability Evaluation Report of October 15, 2007[, which] states you have transferable skills and residual functional capabilities necessary to perform several occupations. In addition, the Committee reviewed the medical records you submitted, as well as the entire file.
Durakovic thereafter amended her complaint in this action.
On July 31, 2009, the district court granted summary judgment in favor of defendants and denied Durakovic's cross-motion for summary judgment. Durakovic v. Bldg. Serv. 32B-J Pension Fund, 642 F.Supp.2d 146 (E.D.N.Y.2009). This appeal timely followed.
We review decisions granting or denying summary judgment de novo, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir.2005), viewing the evidence in the light most favorable to the non-moving party Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and asking whether the evidence “show[s] that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law,” Fed.R.Civ.P. 56(c). There is no genuine issue of material fact “ ‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.’ ” Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir.1996) (quoting Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
The Funds' decision was subject to arbitrary-and-capricious review by the district court.2See, e.g., Celardo v. GNY Auto. Dealers Health & Welfare Trust, 318 F.3d 142, 145 (2d Cir.2003) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). In Metropolitan Life Insurance Company v. Glenn, 554 U.S. 105, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), the Supreme Court held that an ERISA-fund administrator that “both evaluates claims for benefits and pays benefits claims” is conflicted, and that a district court, when reviewing the conflicted administrator's decisions, should weigh the...
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