CREELMAN v. CARPENTERS PENSION AND ANNUITY FUND OF PHILADELPHIA AND VICINITY

Filing 21

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 5/14/2013. 5/14/2013 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
STEVEN D. CREELMAN
v.
CARPENTERS PENSION & ANNUITY
FUND OF PHILADELPHIA &
VICINITY

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CIVIL ACTION

NO. 12-718

MEMORANDUM
McLaughlin, J.

May 14, 2013

The plaintiff, Steven Creelman, initiated this lawsuit
after the defendant, Carpenters Pension and Annuity Fund of
Philadelphia and Vicinity (“Carpenters Fund” or “Fund”), denied
him a disability pension.

Creelman alleges that, in rendering

its decision, the Carpenters Fund violated several aspects of the
Employee Retirement Income Security Act of 1974 (“ERISA”), and he
brings suit under ERISA §§ 502(a)(1)(B), 29 U.S.C.
§ 1132(a)(1)(B), and 502(a)(3), 29 U.S.C. § 1132(a)(3).
Specifically, Creelman argues that the Fund unreasonably denied
him a disability pension, procedurally erred in the course of its
decisionmaking process, and breached its fiduciary duties.

He

contends that the Fund’s unreasoned decision necessitates remand
so that it may reconsider its benefits determination, and that
its other violations estop it from pursuing certain eligibility
arguments before this Court and on remand.
Creelman has moved for summary judgment on all claims.
The Fund has cross-moved for summary judgment on Creelman’s

wrongful denial of benefits claim, which, if granted, moots
Creelman’s claims based on procedural error and breach of
fiduciary duty.

The Court held oral argument on the parties’

cross-motions, and will grant the Fund’s motion for summary
judgment on Creelman’s wrongful denial claim and deny the motion
for summary judgment filed by Creelman.

I.

Summary Judgment Record
The Court’s review of the Fund’s benefits determination

is limited to the administrative record on which that decision
was based.

Howley v. Mellon Fin. Corp., 625 F.3d 788, 793 (3d

Cir. 2010); see also Fleisher v. Standard Ins. Co., 679 F.3d 116,
121 (3d Cir. 2012).

Creelman’s breach of fiduciary duty claim,

however, implicates some evidence extrinsic to the administrative
record.

The Court, therefore, draws certain facts relating to

that claim from admissible evidence in the summary judgment, but
not administrative, record.

The facts described herein are

undisputed unless otherwise noted.

A.

The Parties
The Carpenters Fund is a trust fund established under

29 U.S.C. § 186(c)(5) and constitutes an “employee benefit plan”
within the meaning of ERISA, 29 U.S.C. § 1002(3).

The Fund

operates as part of the Carpenters Pension and Annuity Plan of

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Philadelphia and Vicinity (“Plan”).

The Plan is governed by an

amended and restated plan document, the current version of which
has been in effect since May 1, 2010 (“Plan Document”).1

The

Plan Document defines who qualifies as an “Active Participant” in
the Plan.

An individual becomes an Active Participant by working

a certain number of creditable hours per Plan Year, defined as
the twelve-month period beginning May 1 and ending April 30.

An

Active Participant loses that status by, among other things,
falling below a certain working-hour threshold in a Plan Year.
R. at D10303-04, D10306, D10310.2
Steven Creelman was born on December 8, 1960.

As of

October 2007, Creelman was employed by a company named AP
Construction Inc. to work in dock construction and was an Active
Participant in the Carpenters Fund.

B.

R. at D00122, D00145

Creelman’s Injury
On October 29, 2007, while at his place of work,

Creelman tripped and fell onto his knees, fracturing his left
patella.

R. at D00002-03.

After suffering that injury, Creelman

remained out of work and collected workers’ compensation for
1
The parties agree that this May 1, 2010 amended and
restated version of the Plan Document is the operative version
for purposes of this suit.
2

“R.” refers to the administrative record. “PX” refers to
any additional exhibits submitted in support of Creelman’s motion
for summary judgment and “DX” refers to exhibits included along
with the Fund’s summary judgment motion.
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almost a full year, returning to his job in mid-October 2008.
Creelman stopped working in December 2008, and, with the
exception of another return to work for a period of time between
May and July 2009, has been out of work and on workers’
compensation ever since.

R. at D00146-53.

Between at least 2007 and 2009, Creelman received
ongoing treatment from Dr. John Esterhai, M.D., and underwent
several procedures related to his knee injury and other ailments.
According to Dr. Esterhai, after Creelman’s initial knee surgery,
he began altering his gait as a means of favoring his left knee.
As a result, Creelman developed pain in his right knee and heel,
shoulders, hips, and lower back.

By the summer of 2008, Dr.

Esterhai determined that Creelman had bulging discs in his lower
back and a small tear of the medial meniscus in his right knee.
R. at D00001-29.

In March 2009, Dr. Esterhai wrote a report,

stating that he thought it was unreasonable, given the condition
of both of Creelman’s knees and his spine, to expect Creelman to
return to heavy labor.

Dr. Esterhai stated that Creelman had

“permission to return to sedentary work even now were such work
available.”

In Dr. Esterhai’s estimation, however, based on

Creelman’s age, work history, and education, Creelman did not
have the skills to perform “in that environment.”
31.

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R. at D00030-

C.

Creelman’s Consideration of a Disability Pension
At all times relevant to this action, the Carpenters

Fund offered disability pensions to Active Participants in the
Plan, subject to requirements established in § 2.07 of the Plan
Document.

Section 2.07 provides, in relevant part, that an

“Active Participant” shall become a “Disabled Participant,”
entitled to a disability pension, if he suffers a disability due
to disease or bodily injury about which
the Board [of Administration for the Fund (“Board”)]
makes a determination based on an examination of such
Active Participant carried out by a doctor of medicine
named by the Board and such other evidence as the Board
may deem necessary, appropriate or desirable that such
Active Participant is and presumably will continue to
be for the remainder of his or her lifetime wholly
prevented from engaging in any occupation or performing
any work for wage or profit on account of such
disability.
The section also states that a disability pension applicant must
be an Active Participant in the Plan on the date of his
application.

R. at D10312-13, § 2.07(a)(1)(B), (a)(4).

In May 2010, the Fund’s manager, Joseph Obuchowicz,
sent Creelman a letter advising him of how he might obtain a
Carpenters’ Disability Pension.

The letter specifically stated

that Creelman’s disability had to be severe enough to prevent him
from doing any work for wage or profit for the remainder of his
life and that Creelman was obligated to make an application while
receiving the Fund’s weekly disability benefit or workers’
compensation supplement.

The letter further suggested that
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Creelman simultaneously apply for a Social Security Disability
Pension from the government.

Obuchowicz attached to his letter a

copy of § 2.07, which outlined the full eligibility requirements
for a disability pension.3

R. at D00034-35.

After receiving that letter, Creelman made an
appointment to meet with Obuchowicz in early June 2010, with the
intention of applying for a Carpenters’ Disability Pension.

At

the meeting, Obuchowicz informed Creelman that it would be
prudent to wait to apply for a disability pension until November
of that year.

According to Obuchowicz, Creelman would receive

family medical benefits from the Plan’s separate health and
welfare fund until the end of October, but, if he applied for a
disability pension, he would forfeit his eligibility for those
benefits.

Based on Obuchowicz’s representations, Creelman did

not apply for a Carpenters’ Disability Pension at that time.
DX 1 (7/26/12 Creelman Dep.) at 29-31; PX 11 (10/9/12 Creelman
Aff.) ¶ 5.
By the time of the June 2010 meeting, Obuchowicz was
aware that, due to Creelman’s lack of working hours, his status
as an Active Participant would lapse on May 1, 2011.

Obuchowicz

was also aware that Creelman would need to apply for a
3

It appears that Obuchowicz did not attach the most up-todate version of § 2.07. The version of § 2.07 appended to
Obuchowicz’s May 2010 letter and the version that appears in the
May 1, 2010 Plan Document contain stylistic and minor wording
differences that are not material to the eligibility requirements
here at issue. Compare R. at D00035, with R. at D10312-13.
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Carpenters’ Disability Pension by April 30, 2011, and that he was
obligated to inform Creelman of this fact.
Obuchowicz Dep.) at 32-33.

DX 2 (7/26/12

At their meeting, Obuchowicz did not

advise Creelman that he would lose his eligibility for a
disability pension if he failed to file an application while
still an Active Participant under the Plan Document or that his
Active Participant status would lapse after April 30, 2011.4
Following the meeting, neither Obuchowicz nor any other
representative of the Carpenters Fund informed Creelman of the
date by which he needed to submit a disability pension
application.

D.

PX 11 ¶ 6.

Creelman’s Application for Social Security Benefits
In late 2010 or early 2011, Creelman submitted an

application for Social Security disability insurance (“SSDI”)
benefits to the Social Security Administration (“SSA”).

In

connection with his application, Creelman was examined by Dr.
Patrick Murphy, D.O., who submitted a report to the SSA in
February 2011.

Dr. Murphy began his report by noting that

Creelman had sustained a left patellar fracture in 2007.

He then

went on to describe the various forms of treatment and diagnoses
4

Obuchowicz states that it would have been his obligation,
at that meeting, to outline for Creelman the window during which
he needed to apply for a disability pension. Obuchowicz does not
have any reason to believe that he failed to comply with his
obligation on that date; however, he does not specifically recall
informing Creelman of the need to file an application for a
disability pension by April 30, 2011. DX 2 at 25, 33.
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provided by Dr. Esterhai in the interim.

In the course of his

own medical examination, Dr. Murphy found that Creelman had,
among other things, chronic pain in his left knee, mild
degenerative joint disease in his right knee, bulging lumbar
discs and back pain, bilateral hip strain, right heel plantar
fasciitis, and a severed right big toe.

In Dr. Murphy’s

estimation, Creelman could stand or walk approximately one to two
hours a day and was able to sit for eight hours per day.
Murphy did not opine on Creelman’s capacity for work.

Dr.

R. at

D00090-107.
To be eligible for SSDI benefits, an applicant must
demonstrate disability “of such severity that he is not only
unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.”
42 U.S.C. § 423(d)(2)(A).

On April 1, 2011, the SSA issued

Creelman an award of disability benefits, and found Creelman’s
date of disability to be December 7, 2010.

E.

R. at D00082-85.

Creelman’s Initial Disability Pension Application
Following the SSA’s award determination, Creelman

applied for a Carpenters’ Disability Pension in May 2011.
D00058-60.

R. at

In response to Creelman’s application, the Carpenters

Fund sent him a letter on May 17, 2011, informing him that, in

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order for his request to be processed, he was required to undergo
an examination by a Fund-designated physician.

The letter stated

that an examination had been scheduled with a “Dr. Mela.”

The

letter also reminded Creelman that, in order to receive a
disability pension, his “disability must be Total and Permanent,
and prevent [him] from engaging in any occupation or performing
any work for wage or profit.”

R. at D00066.

Dr. Anthony J. Mela, Sr., D.O., conducted a physical
examination of Creelman on June 2, 2011.

Dr. Mela noted that

Creelman had fractured his patella in a work-related injury on
October 29, 2007 and had since undergone two knee surgeries,
physical therapy for his left knee, and MRIs of his lumbar spine
and right knee.

Dr. Mela confirmed many of the findings by Drs.

Esterhai and Murphy.

His report stated that Creelman continued

to suffer from tenderness and decreased mobility in both knees
and from additional injuries, including pain in both hips, a
“right median meniscus tear, multiple lumbar disc protrusions,
and right heel and plantar fasciitis,” due to altering his gait
to compensate for his left knee injury.

Dr. Mela noted that

Creelman had obtained medical treatment and advice from Dr.
Esterhai regarding several of his ailments, and acknowledged
that, in Dr. Esterhai’s estimation, Creelman was “unable to
return to the line of work that he was doing previously,” namely,
welding and power driving.

Dr. Mela ultimately concluded that

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Creelman’s physical impairments were not severe enough to
preclude him from “engaging in any occupation or performing any
work for wage or profit on . . . account of his disability for
the remainder of his life.”

Dr. Mela’s opinion was that Creelman

would require some vocational rehabilitation to perform other
work, but that a return to work was possible.

R. at D00067-68.

On June 28, 2011, Obuchowicz sent Creelman a letter,
informing him that his application for a Carpenters’ Disability
Pension had been denied on the basis of Dr. Mela’s conclusion
that Creelman was “not totally and permanently disabled for the
remainder of [his] lifetime.”

The letter stated that the

decision was based on the eligibility requirements outlined in
§ 2.07 of the Plan Document.

Obuchowicz went on to inform

Creelman of his right to appeal the initial denial to the Fund’s
Board.

F.

R. at D00070-71.

Creelman’s Appeal
Creelman notified the Fund of his intention to file an

appeal in a letter from his counsel, Stanley Gruber, on July 7,
2011.

R. at D00074-75.

On July 28, Gruber sent a second letter

to the Carpenters Fund, articulating the bases for Creelman’s
appeal.

The letter stated that Creelman objected to the

following aspects of the Fund’s decision: (1) Dr. Mela’s failure
to provide any basis or support for his opinion that Creelman’s

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injuries did not forever prevent him from working in any
occupation; (2) the failure of Dr. Mela and the Fund’s Board to
consider Creelman’s age, education, training, and job skills when
determining whether he was totally and permanently disabled;
(3) the failure of Dr. Mela and the Board to consider the fact
that Creelman had been awarded SSDI benefits, which are based on
total disability; and (4) Dr. Mela’s lack of experience or
credentials in the field of orthopedic or physiatric medicine and
the fact that he is a doctor of osteopathy, rather than a “doctor
of medicine,” who is required to conduct the examination
contemplated in § 2.07 of the Plan Document.

Attached to the

letter was the SSA’s April 1, 2011 award of disability benefits
and Dr. Murphy’s medical report that had been submitted in
conjunction with Creelman’s application to the SSA.

R. at

D00078-81.
Gruber thereafter sent Obuchowicz a letter on
September 7, 2011, confirming that the Fund had scheduled
Creelman for another medical examination with Dr. Larry Kramer,
D.O., on September 12, 2011.

Gruber expressed his expectation

that Dr. Kramer would be provided with a copy of Dr. Murphy’s
physician’s report and a copy of Creelman’s SSDI award.

R. at

D00108-09.
Dr. Kramer examined Creelman on September 12, 2011, as
scheduled.

The notes of examination reflect that Dr. Kramer

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conducted a review of Creelman’s medical history and a physical
examination.

Dr. Kramer’s assessment was that Creelman suffered

from several physical ailments, including mild hypertension,
swelling and pain in the left knee, probable hip osteoarthritis,
and back pain.

On September 22, 2011, Dr. Kramer forwarded the

notes of his examination to Obuchowicz.

Dr. Kramer’s covering

transmittal letter stated that he had “review[ed] copious amounts
of records that [Creelman] was nice enough to supply.”

He also

provided his conclusion that Creelman’s physical impairments were
not severe enough to prevent him from doing any work for wage or
profit for the remainder of his lifetime.

R. at D00113-17.

Obuchowicz forwarded Dr. Kramer’s report to Gruber on
September 27, 2011.

R. at D00112.

In an October 11, 2011 letter, Gruber again contested
the sufficiency of the report and conclusions of the Funddesignated physician.

Gruber objected to (1) Dr. Kramer’s

failure to itemize what documents were included in the “copious
amounts of records” he had reviewed and, in particular, whether
he had reviewed Dr. Murphy’s report to the SSA and the SSA’s
award of benefits; (2) the conclusory nature of Dr. Kramer’s
determination that Creelman was not totally and permanently
disabled; (3) his failure to consider “vocational factors,” such
as Creelman’s age, education, training, and job skills when

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making this determination; and (4) the fact that Dr. Kramer was
not an orthopedic surgeon or physiatrist.

R. at D00118-19.

On November 30, 2011, the Fund’s Board of
Administration met and voted to affirm the Fund’s initial
benefits determination denying Creelman a disability pension.
The minutes of the meeting detail the chronology of Creelman’s
application, including the fact that Creelman was separately
awarded SSDI benefits.

The minutes go on to state that Creelman

“was evaluated by two panel physicians and was found not to be
totally and permanently disabled by both.

Therefore, [he does]

not meet the Plan’s eligibility requirements for a disability
pension . . . .”

The Board’s Pension Appeals Committee

recommended that the appeal be denied.

It then also noted that

Creelman’s Active Participant status had lapsed as of April 30,
2011, and that his application in May 2011 had been untimely.

R.

at D00143-44.
Following the Board meeting, Obuchowicz conveyed to
Gruber the Board’s final decision denying Creelman’s application
for a disability pension.

He cited two bases for that decision.

The first was the conclusion reached by Dr. Mela and Dr. Kramer
that Creelman was not “totally and permanently disabled from all
work.”

The letter noted that the Plan Document was not required

to track the SSA’s definition of disability and in fact had
“rejected that approach.”

The second reason for the benefits

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denial was the fact that Creelman had not been an Active
Participant when he applied for a Carpenters’ Disability Pension
in May 2011.

This was the first time that the Fund referenced

Creelman’s inactive status in its correspondence regarding his
pension application.

II.

R. at D00123-24.

Analysis5
Creelman acknowledges that the Fund’s decision to deny

him a disability pension was based on two alternative and, in its
view, independently sufficient grounds: his lack of a total
disability and his inactive participant status.

See 12/19/12

Hr’g Tr. at 15-16.
In his present suit, Creelman challenges both bases of
decision.

He first contends that the Fund’s disability

conclusion was unreasonable because the Fund failed to consider
vocational factors, such as his age, education, and job skill,
when assessing whether he was totally and permanently disabled;
the medical opinions on which the Fund based its decision were
substantively deficient; the Fund failed to consider his award of
5

Summary judgment is appropriate if 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). The moving
party bears the initial burden of demonstrating the absence of
any genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once a properly supported motion for
summary judgment is made, the burden of production shifts to the
non-moving party, who must set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986).
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SSDI benefits; and procedural error undermines the rationality of
the Fund’s ultimate awards determination.
Creelman further argues that the Fund should be
estopped, in these proceedings and on remand, if granted, from
denying him disability benefits on the basis that his Active
Participant status lapsed prior to submission of his pension
application.

He claims that the Fund procedurally erred in

failing to include his inactive status as a reason for its
initial benefits denial, but then considering it as a reason for
affirming that decision on appeal to the Board.

Moreover,

according to Creelman, he failed to submit a timely application
because Obuchowicz never mentioned that his Active Participant
status would lapse as of May 1, 2011, an omission that
constitutes a breach of Obuchowicz’s fiduciary duties.

Creelman

has moved for summary judgment on all claims.
The Fund counters that the Plan Document does not
obligate it to undertake an individualized vocational analysis
when making disability determinations and that its decision to
deny Creelman a pension, based solely on his lack of a total and
permanent disability, was reasonable.

It has cross-moved for

summary judgment on Creelman’s improper denial of benefits claim.
The Court concludes that the Fund’s decision to deny
Creelman a disability pension based on his lack of disability was
not arbitrary and capricious, and that the Fund is entitled to

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summary judgment on Creelman’s wrongful denial claim.

In view of

that finding, the Court need not reach Creelman’s estoppel
arguments.

A.

Standard of Review
The Plan Document vests the Board of the Fund with

exclusive, discretionary authority to determine eligibility for
Fund benefits and to interpret the Plan Document.
§ 5.01.

R. at D10353,

Accordingly, the Court applies the deferential

“arbitrary and capricious” standard of review to the Board’s
denial of benefits.6

Miller, 632 F.3d at 844-45; Abnathya v.

Hoffmann-La Roche, Inc., 2 F.3d 40, 44-45 (3d Cir. 1993)
(abrogated on other grounds).

The Board’s decision will only be

declared invalid “if it is without reason, unsupported by
substantial evidence or erroneous as a matter of law.”

Fleisher,

679 F.3d at 121 (quoting Miller, 632 F.3d at 845) (quotation
marks omitted); Viera v. Life Ins. Co. of N. Am., 642 F.3d 407,
413 (3d Cir. 2011).

6
The Supreme Court frames the judicial standard of review
relevant here as “abuse of discretion.” Metro. Life Ins. Co. v.
Glenn, 554 U.S. 105, 111, 115-16 (2008) (quotation marks and
citations omitted). The Third Circuit has clarified that, in the
ERISA context, the “arbitrary and capricious” and “abuse of
discretion” formulations refer to an “essentially identical” mode
of analysis. Miller v. Am. Airlines, Inc., 632 F.3d 837, 845 n.2
(3d Cir. 2011).

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B.

Vocational Analysis Requirement
In determining that Creelman did not qualify as

disabled under the terms of the Plan, the Carpenters Fund did not
engage in an assessment of his particular vocational
circumstances.

The parties contest whether § 2.07 of the Plan

Document required the Fund to undertake such an analysis and
whether the Fund’s decision violated this provision.

The Court

finds that the Fund acted reasonably in interpreting its Plan
Document to impose no such requirement.
As the Fund notes, the definition of “disability” in
§ 2.07 of the Plan Document differs markedly from the definition
used in the context of the Social Security regime, which overtly
includes a vocational component.

To be eligible for SSDI

benefits, an applicant’s disability must be “of such severity
that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the
national economy.”

42 U.S.C. § 423(d)(2)(A) (emphasis added).

Section 2.07 of the Plan Document, on the other hand, requires
that the applicant be “and presumably will continue to be for the
remainder of his or her lifetime wholly prevented from engaging
in any occupation or performing any work for wage or profit on
account of such disability.”

R. at D10312.

As is readily

apparent, § 2.07 makes no allowances for the age, education, or

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work experience of the applicant.

It is the disability—and not a

combination of disability and these vocational circumstances—that
must be the cause of the applicant’s unemployment.

Thus, § 2.07

imposes a more stringent standard for “disability” than the
Social Security regime and does not expressly incorporate any
sort of vocational analysis.
Moreover, the existence of the applicant’s total and
permanent disability is a determination confided to the
discretion of the Fund’s Board.

That determination need only be

based on “an examination . . . carried out by a doctor of
medicine named by the Board and such other evidence as the Board
may deem necessary, appropriate or desirable.”

R. at D10312.

Notwithstanding the fact that the Plan’s definition of
“disability” does not explicitly depend on an applicant’s jobrelated abilities or circumstances, Creelman points to two courts
of appeals decisions from the Second and Tenth Circuits holding
that, even under a “total disability” policy like the one at
issue here, ERISA administrators must consider vocational factors
when determining eligibility for disability benefits.7
7

The Court

Other cases cited by Creelman, including the Third
Circuit’s decision in Miller, are distinguishable from the
present case, as they involve “own-occupation” policies, which
measure disability against an applicant’s capacity for performing
the tasks of his own occupation, or policies that avowedly entail
some vocational analysis. See, e.g., Miller, 632 F.3d at 842,
855 (defining disability as the inability to continue working as
an active pilot); Quinn v. Blue Cross & Blue Shield Ass’n, 161
F.3d 472, 474 (7th Cir. 1998), abrogated on other grounds by
Hardt v. Reliance Standard Life Ins. Co., 130 S. Ct. 2149 (2010)
(defining disability as the inability to perform a “comparable
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of Appeals for the Third Circuit appears not to have weighed in
on the proper construction of such general disability provisions.
The Court is not persuaded that the reasoning of these cases
requires it to countermand the Fund’s interpretation of its Plan
Document.
In Demirovic v. Building Service 32 B-J Pension Fund,
the Second Circuit reviewed a plan provision that afforded a
disability pension to participants who suffered from “[t]otal and
permanent disability”

467 F.3d 208, 209 (2d Cir. 2006)

(quotation marks omitted).

Disability determinations were

confided to the discretion of the plan trustees and required that
the applicant “be unable to perform any gainful employment.”
at 209-10.

Id.

The Second Circuit found that the provision’s

seemingly stringent standard did not permit the defendant ERISA
fund “to deny benefits to any claimant who is physically capable,
in the abstract, of any kind of work whatsoever, regardless of
the claimant’s individual vocational circumstances.”

Id. at 213.

occupation” that provides similar salary to a person with
“similar skills and education”); Lamanna v. Special Agents Mut.
Benefits Ass’n, 546 F. Supp. 2d 261, 271-72 (W.D. Pa. 2008)
(basing disability benefits on the inability to perform “each and
every material duty pertaining to [one’s] occupation” or,
thereafter, the duties of any occupation for which one is
“reasonably qualified by education, training or experience”
(quotation marks omitted)).
Here, the policy is based on general disability, measuring
an applicant’s capacity for performing “any occupation.” It is
this latter formulation, or something akin to it, that is at
issue in the Second and Tenth Circuit Courts of Appeals decisions
cited by Creelman.
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Instead, according to the court, the provision required the fund
to consider factors, such as the applicant’s physical capability,
work skill set, and other available jobs.

See id. at 215.

The Second Circuit reached this conclusion by reasoning
that an inability to perform “gainful employment” should not
require the applicant to be utterly defenseless or abjectly
incapacitated.

Instead, it required the claimant to be prevented

from earning a “reasonably substantial income” or living wage.
Id. at 214-15.

In the court’s view, determining the claimant’s

ability for “gainful employment” necessarily included
consideration of the claimant’s particular vocational
circumstances.

The court found that the fund’s reliance solely

on medical opinions was unreasonable under the policy, as “[a]
determination of ‘employability’ cannot be purely a medical
diagnosis.”

Id. at 213.

Demirovic built on the reasoning of an earlier Tenth
Circuit decision, Torix v. Ball Corp.

In Torix, the Tenth

Circuit reviewed a disability provision almost identical to the
one at issue in this case.

The provision in Torix stated that

“[a] member shall be deemed to be totally and permanently
disabled when, on the basis of qualified medical evidence, the
Company finds such Members to be totally and presumably
permanently prevented from engaging in any occupation or
employment for wages or profit as a result of bodily injury or

-20-

disease.”

862 F.2d 1428, 1429 n.1 (10th Cir. 1988) (emphasis

omitted).

The Torix court held that a reasonable disability

determination under that provision “must consider the claimant’s
ability to pursue gainful employment in light of all the
circumstances.”

Id. at 1431.

Specifically, the plaintiff-

claimant in Torix had objected to the ERISA fund’s failure to
consider his age, his educational background, and the
availability of suitable geographically proximal employment when
making its total disability determination.

Id. at 1429.

Presumably, the Tenth Circuit viewed these as “circumstances”
that the defendant fund was obligated, but failed, to consider.
In essence, Demirovic and Torix interpret phrases such
as “unable to perform any gainful employment” and “prevented from
engaging in any occupation or employment for wages or profit” to
mean an inability to (i) engage in employment yielding a livable
income (ii) based on one’s unique vocational circumstances.
Whether or not this is the best construction of these phrases,
the Court is not persuaded that it is the only reasonable one,
and reasonable is all that the Fund’s interpretation of its Plan
Document need be.

See R. at D10353, § 5.01 (granting the Fund’s

Board discretion to interpret the Plan’s rules).

It may be that

the Fund could not interpret its disability requirement so
strictly as to withhold disability benefits from anyone who can
“sell[] peanuts or pencils, which would yield only a pittance,”

-21-

as the Eleventh Circuit has opined.

See Helms v. Monsanto Co.,

728 F.2d 1416, 1421 (11th Cir. 1984).

Yet, it would seem

reasonable to deny disability benefits where the Fund is of the
view, based on medical opinion, that the applicant is physically
capable of some employment in the economy, without going into a
detailed and individualized analysis of the applicant’s
educational and vocational circumstances.
Indeed, many plans explicitly define disability as an
inability to engage in employment for which the applicant is
“reasonably qualified by training, education, or experience.”
See, e.g., Syed v. Hercules Inc., 214 F.3d 155, 157 (3d Cir.
2000); Lamanna, 546 F. Supp. 2d at 272.

The Ninth Circuit has

noted that a plan incorporating this kind of terminology
necessarily “requires some individuation in the analysis” of
benefits entitlement.

Pannebecker v. Liberty Life Assurance Co.

of Boston, 542 F.3d 1213, 1220 (9th Cir. 2008).

Such language is

not universal to all ERISA plans, however, and is absent from the
provision here.
That difference is material.

ERISA was intended to

offer employers “large leeway to design disability and other
welfare plans as they see fit,” and entitlement to benefits under
any particular plan “is likely to turn, in large part, on the
interpretation of terms in the plan at issue.”

Black & Decker

Disability Plan v. Nord, 538 U.S. 822, 833 (2003) (quotation

-22-

marks and citation omitted).

Moreover, as the Supreme Court

noted in Black & Decker, ERISA plans need not conform to either
the benefit structure or procedural requirements of the Social
Security program, which takes vocational abilities into account.
Id.; cf. Moats v. United Mine Workers of Am. Health & Ret. Funds,
981 F.2d 685, 689 (3d Cir. 1992) (noting that an ERISA plan is
not required to incorporate the standards of the workers’
compensation regime and that extra-plan standards should not bind
a plan’s administrators).

Diversity among plans is entirely

permissible.
Given the terms of the present Plan Document and the
flexibility ERISA is meant to afford plan administrators, the
Fund did not act arbitrarily and capriciously in determining that
the language of § 2.07 did not mandate individualized vocational
assessment of its disability pension applicants, including the
plaintiff in this case.

C.

Review of the Record
Having determined that a vocational analysis was not

necessary to the Fund’s benefits determination, the Court next
addresses whether the various substantive and procedural
deficiencies alleged by Creelman render the Fund’s decision
unreasonable.

In particular, Creelman contends that the Fund’s

denial of a pension was arbitrary and capricious because the

-23-

physician reports on which it relied were insufficiently
comprehensive and the examining physicians lack expertise in the
field of orthopedic medicine or physical rehabilitation.
Creelman also argues that the Fund failed to consider his SSDI
award and committed procedural error.

The Court concludes that

the Fund’s decision to deny Creelman a disability pension was
reasonable and supported by substantial evidence in the record.

1.

Reports of Fund-Designated Physicians

Creelman lodges several attacks on the sufficiency of
the examining physicians’ reports and the Fund’s reliance on
those medical evaluations.
First, Creelman contends that the Fund’s examining
physicians, Drs. Mela and Kramer, did not support their ultimate
findings with necessary factual evidence and offered only “bare
conclusions.”

Pl.’s Mot. Summ. J. at 46.

The Court disagrees.

Dr. Mela provided in detail the results of his physical
examination.

He noted Creelman’s range of motion with respect to

his lumbar spine, legs, and knees; he evaluated Creelman’s
ability to walk and bear weights; he reported the pain Creelman
experienced in various body parts; and opined on the injuries
causing Creelman pain.

Dr. Mela could have perhaps drawn a

clearer line between the results of his examination and why
Creelman would not be prevented from engaging in all occupations,

-24-

but it is evident from his opinion that he performed a reasonably
thorough examination and concluded Creelman’s pain and limited
mobility would not preclude all forms of work, such as a
sedentary desk job.
Dr. Kramer’s report, following a physical assessment,
also contains sufficient findings.

According to his report,

Creelman suffered from mild hypertension; being overweight;
swelling and pain in his left knee, which made walking difficult;
probable osteoarthritis in his hip; and back pain.

Again, Dr.

Kramer could have stated more explicitly why these medical
problems would not preclude Creelman from working in any
occupation, but his medical opinion is based on what appears to
be a fairly comprehensive evaluation.

Moreover, the fact that

two doctors reached this conclusion is further support that it
was not an unreasonable or arbitrary one.
at 47.

See Abnathya, 2 F.3d

Creelman’s disagreement with the conclusions reached by

these doctors is not a sufficient basis for declaring their
findings unreasoned.
Next, Creelman argues that the Fund, on its own or
acting through its examining physicians, did not adequately
consider the multiple reports issued by Creelman’s treating
physician, Dr. Esterhai, or the report that Dr. Murphy submitted
with Creelman’s Social Security application.

“An administrator’s

failure to address all relevant diagnoses in terminating a

-25-

claimant’s benefits is . . . a cause for concern that suggests
the decision may have been arbitrary and capricious.”
632 F.3d at 853.

Miller,

Notably, an ERISA plan administrator may not

“arbitrarily refuse to credit a claimant’s reliable evidence,
including the opinions of a treating physician.”
538 U.S. at 834.

Black & Decker,

It need not, however, accord deference to a

treating physician’s opinion, nor must it explain a decision to
credit medical evidence that conflicts with the report of a
treating physician.

Id.; Stratton v. E.I. DuPont De Nemours &

Co., 363 F.3d 250, 257-58 (3d Cir. 2004).
The Fund does not claim to have independently reviewed
evidence from Drs. Esterhai and Murphy.

Instead, it argues that

the doctors on whom it relied in making its disability decision
gave proper consideration to Creelman’s other physician reports.
Dr. Mela sufficiently considered the views of Dr. Esterhai.

Dr.

Mela’s report talks at length about the course of treatment
provided Creelman by Dr. Esterhai ever since 2007.

Dr. Mela also

took note in his “Assessment” section of Dr. Esterhai’s
recommendations that Creelman could not return to his previous
line of work and that, if he did so, he would risk further
damaging his knee.

In fact, Dr. Mela did not dispute this

finding or any of Dr. Esterhai’s other diagnoses.
Creelman does have a stronger argument with respect to
the Fund’s consideration of Dr. Murphy’s report.

-26-

The only

evidence that either the Fund or its designated doctors reviewed
Dr. Murphy’s medical report is Dr. Kramer’s reference to
“reviewing copious amounts of records” supplied by Creelman.
at D00113.

R.

It can be inferred that Creelman included in this

collection of records his SSDI application, Dr. Murphy’s report,
and his SSA award, given that Creelman’s counsel had earlier
expressed the opinion that it would be important to furnish these
documents to Dr. Kramer for his consideration.8

R. at D00108-09.

That being said, the administrative record does not definitively
establish whether Dr. Kramer reviewed Dr. Murphy’s report.
Lastly, Creelman objects to the fact that Drs. Mela and
Kramer are not specialists in orthopedic medicine or physical
rehabilitation, which, as far as the Court can tell, is true.
The relative expertise of examining physicians is relevant to the
Court’s review.

See Pinto v. Reliance Standard Life Ins. Co.,

214 F.3d 377, 393-94 (3d Cir. 2000) (abrogated on other grounds).
This and the other foregoing arguments about perceived
inadequacies in the reports of Drs. Mela and Kramer might be more
persuasive were it not for the fact that Dr. Mela’s and
Dr. Kramer’s conclusions comport with the findings made by
Dr. Esterhai, who appears to be an orthopedic surgeon, as well as
Dr. Murphy.

All four of these doctors made essentially the same

8

Creelman even asserts in his motion for summary judgment,
though without citation to the evidentiary record, that he
provided Dr. Kramer with a copy of his SSA award determination
when Dr. Kramer examined him. See Pl.’s Mot. Summ. J. at 15.
-27-

diagnoses.

All four determined that, following Creelman’s fall,

he continued to suffer from pain in both knees, his lower back,
and hips.

Drs. Esterhai, Murphy, and Mela more specifically

found that Creelman had developed disc protrusions in his lower
back and right heel pain as a result of altering his gait to
favor his injured left knee.

Both Dr. Esterhai and Dr. Mela

determined that Creelman had suffered a tear in the meniscus of
his right knee, which Dr. Murphy also noted in his report.

Dr.

Esterhai, like the doctors recommended by the Fund, even
concluded that Creelman’s physical injuries did not prevent him
from doing all work.

The difference is that Drs. Mela and

Kramer, unlike Dr. Esterhai, did not find Creelman’s vocational
circumstances to act as a separate bar to obtaining employment.
Even there, however, the distinction between these opinions is
not great.

For instance, Dr. Mela ultimately concluded that

Creelman would require “vocational rehabilitation to perform
other work;” he did not find that Creelman could immediately
engage in new employment.

R. at D00068.

In short, the Fund based its denial of a disability
pension on medical opinion, as required by the Plan Document.
See R. at D10312, § 2.07(a)(1)(B).

In fact, § 2.07 permits the

Fund to deny a disability pension on the basis of one medical
examination.

The Fund did more than was required by conducting

and relying on two physical examinations.

-28-

The medical opinions

offered by the Fund’s doctors are consistent with the medical
opinions offered by Creelman’s own physicians, and there is no
reason that the Fund-designated doctors’ conclusions should be
discounted.

2.

Consideration of SSA Award

An ERISA administrator need not defer to or always
reconcile its own decision regarding an applicant’s disability
with a disability determination by the SSA.

Goletz v. Prudential

Ins. Co. of Am., 383 F. App’x 193, 198 (3d Cir. 2010).
Nevertheless, deviation from the SSA’s determination or failure
to consider a SSDI award is a factor to be considered in
determining whether a denial of benefits was arbitrary and
capricious.

Post v. Hartford Ins. Co., 501 F.3d 154, 167 (3d

Cir. 2007) (abrogated on other grounds); see also Hobson v.
Metro. Life Ins. Co., 574 F.3d 75, 91-92 (2d Cir. 2009).
As a preliminary matter, and as previously noted, there
is some suggestion in the record that Dr. Kramer, the second
Fund-designated physician to examine Creelman, reviewed
Creelman’s Social Security application, Dr. Murphy’s accompanying
report, and the SSA’s award as part of the “copious amounts of
records” provided him by Creelman.

R. at D00113.

In addition,

the minutes from the Board meeting at which Creelman’s appeal was

-29-

denied make specific mention of the fact that he had received
SSDI benefits.

R. at D00144.

In any event, any failure to consider the SSA’s award
does not much aid Creelman’s position that the Fund’s denial of
benefits was arbitrary.

As discussed above, the disability

definition adopted in the Plan Document is more stringent than
that utilized by the SSA and does not encompass a consideration
of vocational factors.

In fact, the final determination letter

that Obuchowicz sent Creelman informed him that the Plan did not
need to apply Social Security disability criteria and that the
Plan had rejected the SSA’s approach to disability award
determinations.

R. at D00123.

The SSA’s finding of total

disability, therefore, is of less persuasive value here than it
would be in other plans that require an examination of the
applicant’s age, work experience, and education, and it was not
unreasonable for the Fund to reach a contrary conclusion as to
Creelman’s disabled status or give little attention to Creelman’s
SSDI award.

See, e.g., Hoch v. Hartford Life & Accident Ins.

Co., No. 08-4805, 2009 WL 1162823, at *16-17 (E.D. Pa. Apr. 29,
2009) (placing little determinative weight on the SSA’s
determination of the plaintiff’s disability, in part, because the
SSA had “very different guidelines for determining disability
than does the Policy in this case”).

-30-

Moreover, although the ultimate disability
determination rendered by the SSA and the Fund differed, as
previously explained, the medical opinions on which each was
based were quite similar.

Even if the Fund gave the SSDI

application materials short shrift, there is little danger that
it rendered the Fund’s decision arbitrary and capricious.

3.

Procedural Error

The Third Circuit has advised that “an administrator’s
compliance with § 503[ of ERISA, which outlines certain
procedural requirements,] in making an adverse benefit
determination is probative of whether the decision to deny
benefits was arbitrary and capricious.”9
851.

Miller, 632 F.3d at

In Miller, the court determined that a termination-of-

benefits letter sent to the plaintiff was procedurally deficient.
The Miller court found that the letter provided only cursory
explanation of the fund’s rationale for denying benefits and did
not explain with precision the remedies available to the
applicant.

Id. at 852-53.

The Third Circuit reasoned that,

because the termination letter made it “exceedingly difficult”
for the applicant to understand or challenge the denial of
9

Miller also states that a court must consider underlying
“structural concerns regarding how the particular ERISA plan was
funded” as a relevant factor in determining whether the
administrator’s benefits decision was reasonable. 632 F.3d at
845. Creelman does not argue that structural conflicts of
interest undermine the rationality of the Fund’s decision in this
case. Pl.’s Mot. Summ. J. at 29 n.22.
-31-

benefits due to its conclusory and vague language, there was even
greater reason to find the denial lacking in reason.

Id.

Creelman does not claim that any of the Fund’s letters
were written in a manner that obfuscated the Fund’s rationale or
that Obuchowicz’s denial letters lacked factual support.

Rather,

he contends that the Fund’s failure to mention his inactive
status until its final determination exhibits that its decision
was made in bad faith or arbitrarily.
35.

Pl.’s Mot. Summ. J. at 34-

The Court finds this procedural deficiency minimally

probative.

From the minutes of the Board’s meeting, it appears

that the Fund simply uncovered the fact that Creelman was no
longer an Active Participant in the late stages of its
investigation and cited it, in addition to its disability
determination, as a separate reason for denying Creelman a
disability pension.

Perhaps this demonstrates carelessness or a

review lacking all desirable thoroughness, but it does not help
establish arbitrariness or lack of reason.

Moreover, because the

Board’s denial was based on alternative and independently
sufficient rationales, even putting aside Creelman’s inactive
status, the Board had a sound reason for its decision.
Viewing the record as a whole and weighing the various
case-specific factors at issue, the Court finds that the Fund’s
decision to deny Creelman’s application for a disability pension

-32-

was reasonable in light of the evidence with which it was
presented.

D.

Attorneys’ Fees
One final matter is Creelman’s request for attorneys’

fees.

ERISA permits a court, in its discretion, to award

attorneys’ fees and costs to either party, “as long as the fee
claimant has achieved ‘some degree of success on the merits.’”
Hardt, 130 S. Ct. at 2152 (quoting Ruckelshaus v. Sierra Club,
463 U.S. 680, 694 (1983)) (interpreting 29 U.S.C. § 1132(g)(1)).
Because the Court will uphold the Fund’s benefits decision and
grant summary judgment in its favor, the Court finds that
Creelman has not achieved success on the merits of his claim and
he is not entitled to an award of attorneys’ fees.

III. Conclusion
For the foregoing reasons, the Court will grant the
Fund’s motion for summary judgment.
separately.

-33-

An appropriate order issues