Chitoiu v. UNUM Provident Corporation, (2nd Cir. 2009)

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07-5132-cv

Chitoiu v. UNUM Provident Corporation

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1 AND

FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN W HICH A LITIGANT CITES

A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST

EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOM PANIED BY THE NOTATION: "(SUM M ARY ORDER)."

A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH

THE PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NO T REPRESENTED BY COUNSEL

UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS PUBLICLY

A C C E S S IB L E W IT H O U T P A Y M E N T O F F E E (S U C H A S T H E D A T A B A S E A V A I L A B L E A T

HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 4th day of September, two thousand nine.

PRESENT:

RALPH K. WINTER,

ROSEMARY S. POOLER,

Circuit Judges,

ROSLYNN MAUSKOPF,*

District Judge.

Elena Chitoiu,

Plaintiff-Appellant,

v. 07-5132-cv

UNUM Provident Corporation, et. al,

Defendants-Appellees.

FOR APPELLANT: Elena Chitoiu, pro se, New York, NY.

FOR APPELLEES: Louis P. DiGiaimo, Mee Sun Choi, McElroy, Deutsch, Mulvaney

& Carpenter, LLP, Morristown, NJ.

Appeal from a judgment of the United States District Court for the Southern District of New York (Preska, C.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Appellant Elena Chitoiu, pro se, appeals the district court's grant of summary judgment in favor of the Appellees in Appellant's action to recover long term disability benefits under the Employment Retirement Income Security Act of 1974 ("ERISA"), 29U.S.C. § 1001, et seq. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review an order granting summary judgment de novo, and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).

Here, we find that the district court properly granted summary judgment. At the outset, the district court correctly determined that the appropriate standard of review was the arbitrary and capricious standard, based on the language in the plan. See Firestone Tire & Rubber Co. v.

Bruch, 489 U.S. 101, 115 (1989); Miller v. United Welfare Fund, 72 F.3d 1066, 1070 (2d Cir.

1995). Applying that standard, under which a denial of benefits will be reversed "only if it was without reason, unsupported by substantial evidence or erroneous as a matter of law," Pagan v.

NYNEX Pension Plan, 52 F.3d 438, 442 (2d Cir. 1995)(internal quotation omitted), the district court correctly found that there was substantial evidence to support Appellees' determination that Appellant had not met her burden of showing that she was unable to perform any occupation for which she was reasonably fitted. Specifically, the determination was supported by evidence, undisputed by Appellant, demonstrating that she had obtained work as a teacher, and that her physician and her psychiatrist had both released her to perform work in that field. Nor was there any support in the record for Appellant's argument that the "any occupation" definition of disability was not the applicable standard under the plan.

We have carefully considered Appellant's remaining claims and find them to be without merit.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk By:

* The Honorable Roslynn Mauskopf, of the United States District Court for the Eastern District of New York, sitting by designation.

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