source: Caselaw Access Project

author: GENE CARTER, District Judge.

license: Public Domain

text:
    Blanche TAYLOR, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. No. 84-0254-B.
    United States District Court, D. Maine.
    Aug. 17, 1984.

      William E. Macdonald, Bangor, Me., for plaintiff.
    Timothy C. Woodcock, Asst. U.S. Atty., Bangor, Me., for defendant.
   ORDER REMANDING ACTION TO THE SECRETARY

GENE CARTER, District Judge.

This action is brought under sections 205(g) and 1631(c)(3) of the Social Security Act [Act], 42 U.S.C. §§ 405(g) & 1383(c)(3) to review the final determination of the Secretary of Health and Human Services [Secretary] denying the plaintiffs application for Supplemental Security Income [SSI] and disability insurance benefits. Plaintiff filed an application for disability insurance benefits and for SSI on February 7, 1983, alleging an inability to work since February 28, 1980. The applications were denied initially and upon reconsideration. A de novo hearing was held on January 24, 1984 before a Social Security Administration administrative law judge [AU], and on May 23, 1984 the AU found that plaintiff was not disabled within the meaning of the Act. On August 23, 1984 the AU’s decision became the “final decision” of the Secretary upon its affirmance by the Appeals Council.

Plaintiff has exhausted her administrative remedies and moves for summary judgment. The defendant has filed a motion for an order affirming her “final decision” together with a certified copy of the transcript of the entire record of the proceedings relating to plaintiff’s applications, including the testimony and documentary evidence upon which the decision of the AU and Appeals Council were based.

The court has reviewed and considered the entire record, including the transcript of the administrative proceedings and the briefs submitted by the parties. In reviewing the Secretary’s decision, the findings of the Secretary as to any fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g); Falu v. Secretary of Health and Human Services, 703 F.2d 24, 28 (1st Cir.1983). Substantial evidence exists where a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support the conclusion drawn. Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1st Cir.1981). In addition, the conclusion drawn at the administrative level must be supported by full and detailed findings. Small v. Califano, 565 F.2d 797, 801 (1st Cir.1977).

Plaintiff, who was 52 years old at the time of her hearing before the AU and possesses a high school education, has previously worked as a traveling insurance and vacuum cleaner sales person, a nutritional aid, companion, waitress, office receptionist, and census taker. Plaintiff alleges an inability to work due to a mental impairment, as well as multiple physical impairments.

The AU found that plaintiff suffers from the following medically determinable impairments: (1) status post excision of benign breast lesion; (2) extensive calcification of the abdominal aorta; (3) degenerative arthritis of the cervical, dorsal, and lumbar spine; (4) moderate to severe degenerative arthritis of both knees; (5) moderately severe exogenous depression; and (6) generalized arthritis of both hands. The AU determined that plaintiff does not have an impairment or combination of impairments that meet or equal an Appendix I listed impairment and that despite her impairments plaintiff retained the residual functional capacity [RFC] to perform sedentary work, provided plaintiff can alternatively sit and stand at will to relieve her pain. Based on the medical evidence of record and the testimony of an impartial vocational expert [VE], the AU concluded that plaintiff is capable of meeting the physical demands of her previous work as an office receptionist. The AU also concluded that plaintiff’s nonexertional impairment does not impose siginficant limitations on plaintiff’s ability to perform her past relevant work and that therefore plaintiff is not disabled within the meaning of the Act. Tr. 17.

Plaintiff does not object to the Secretary’s well documented and entirely supportable conclusion that plaintiff retains the RFC to meet the physical demands of her past relevant work as an office receptionist. Rather, plaintiff objects to the Secretary’s assessment and evaluation of plaintiff’s mental impairment.

The record discloses that since December 1982 plaintiff was seen in consultation with Bruce Saunders, Ph.D., for psychological examination and treatment. Tr. 35. Over the course of these consultations Dr. Saunders administered two Minnesota Multiphasie Personality Inventory [MMPI] tests and two Millón Behavioral Health Inventory [MBHI] tests. Dr. Saunders interpreted the results of the MBHI as suggesting that plaintiff “is an individual who may be viewed as both shy and awkward in social situations” and as presenting a long history of frequent and repeated rejection, resulting in “an overtly restrained cover-up of a deep well of bitterness for others.” Tr. 241. Dr. Saunders stated that plaintiff

is an individual who is inclined to be isolated both from social and familial involvements, and engaging in few active and outgoing behaviors. She is likely to spend much time in quiet rumination and passivity. This avoidance pattern of behavior is well-established and is characteristic of individuals with extremely poor self-image, and consistent failure and ineffectiveness in terms of coping style. She may be described psychologically as an individual manifesting a suspicious and distancing style, and one who when working with health care personnel will constantly test her physician and/or rehabilitation staff for their sincerity.

Tr. 242. Dr. Saunders concluded that plaintiff is unemployable

in that she perceives herself as physically handicapped, and therefore for all practical purposes is physically handicapped. Further, it is my opinion that the psychometric evidence I have reviewed suggests her complaints of skeletal muscular difficulty in her low back area, are not psychogenic in nature, and should be reviewed thoroughly by the orthopedic and/or neurological community-

Tr. 243.

At the hearing before the AU, Dr. Saunders, testifying on plaintiff’s behalf, reiterated his opinion that plaintiff is unemployable. Dr. Saunders testified that when plaintiff appeared for her first consultation she provided “probably the most diffuse unclear description of her disabilities that I had heard in many years from someone who appeared functional.” Tr. 31. Dr. Saunders indicated that the various tests and his clinical observations suggest an often confused and disoriented person evidencing thought disorder and inappropriate affect and who is in need of competent medical care and psychotherapeutic intervention. Tr. 34-37. Dr. Saunders characterized plaintiff’s condition as moderately severe exogenous depression, which interferes with her ability to understand, carry out and remember simple instructions and which would impair her use of judgment, her ability to respond appropriately to supervisors, co-workers and usual work situations, as well as ability to deal with changes in a routine work environment. Tr. 38, 40-41. Upon inquiry from the ALJ, Dr. Saunders agreed that the limitations imposed by plaintiffs mental condition were “significant” prior to April 1982 and the date on which he first saw the plaintiff, but expressed his opinion, based on the various tests and consultations, that plaintiff’s condition has become progressively worse and that she is not capable of performing any kind of work on a regular and continuing basis. Tr. 41.

Plaintiff was examined by Dr. Kamm, a psychiatrist, on February 25, 1983. On mental status exam, plaintiff was cooperative yet appeared irritable and depressed. Memory, retention and recall were intact and there was no evidence of schizophrenia, loose associations, ambivalence, autisms, or inappropriate affect. Plaintiff was anxious and depressed and appeared to be in physical pain. Dr. Kamm’s clinical impression was that plaintiff fulfilled the criteria for anxiety and depression. Referring to Dr. Saunders’ notes, Dr. Kamm interpreted the notes as suggesting that plaintiff’s pain “may be” psychogenic. However, Dr. Kamm concluded that “in any event” plaintiff does suffer from anxiety and depression. Tr. 251-52. In a supplemental questionnaire Dr. Kamm characterized the estimated degree of restriction of plaintiff’s daily activities, constriction of interests, and ability to relate to others resulting from her mental condition as “moderate” on a scale of “none” to “severe,” and estimated the degree of deterioration in plaintiff's personal habits as “mild.” Dr. Kamm notes that plaintiff is capable of managing her own funds. Tr. 253.

In reviewing the reports of doctors Saunders and Kamm, as well as the testimony of Dr. Saunders, the ALJ expressly rejected Dr. Saunders’ opinion that plaintiff is unemployable. The ALJ reasoned that Dr. Saunders describes the

claimant’s condition as one which has evolved over a long period of time. In spite of this the record shows that claimant has been quite capable of working in the past. The doctor’s testimony and report fail to establish any deterioration in the claimant’s overall psychological status since she stopped working. His conclusion is markedly at odds with the findings of Dr. Kamm who has concluded that functionally the claimant is only mild (sic) to moderately impaired. I find that Dr, Kamm’s conclusions are entitled to much more weight than are the conclusions of Dr. Saunders, as Dr. Kamm’s report sets out the specific objective medical data underlying his conclusions.

Tr. 15.

Plaintiff objects to the AU’s assessment and evaluation of plaintiff’s mental impairment on the grounds that the AU (1) erred in finding that plaintiff’s mental impairment is not severe; (2) erred in rejecting the testimony of Dr. Saunders; (3) improperly evaluated the severity of the limitations imposed by plaintiff’s mental impairment; (4) failed to consider plaintiff’s nonexertional manipulative impairment; and (5) failed to consider the complete testimony of the VE.

The Secretary’s regulations require a sequential evaluation of disability claims. 20 C.F.R. § 404.1520. Under the fourth test the Secretary asks whether “the claimant’s impairment prevents] him from performing work of the sort he has done in the past.” Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6-7 (1st Cir.1982). See 20 C.F.R. § 404.1520(e). Under the fourth test plaintiff bears the initial burden of showing an impairment which renders him unable to return to his former type of employment. Pritchard v. Secretary of Health and Human Services, 692 F.2d 198, 201 (1st Cir.1982). See also Gonzalez Perez v. Secretary of Health, Education & Welfare 572 F.2d 886, 887 (1st Cir.1978); Pelletier v. Secretary of Health, Education & Welfare, 525 F.2d 158, 160 (1st Cir.1975).

For purposes of the second step in the analysis, see 20 C.F.R. § 404.1520(c), there can be no question that plaintiff’s mental impairment is “severe,” that is, it significantly limits plaintiff’s mental ability to perform basic work-related activities. Dr. Saunders’ testimony establishes as much. See Tr. at 38. 40-41. However, a determination that an impairment is “severe” for purposes of the second sequential severity test has no bearing on the proper application of the fourth test. The fourth test assumes the presence of a severe impairment and asks whether, in light of the severe impairment, the claimant retains the RFC to meet the physical and mental demands of his or her past relevant work. See Goodermote v. Secretary of Health and Human Services, 690 F.2d at 6. Cf. Pritchard v. Schweiker, 692 F.2d at 201 [fact that AU found that plaintiff had significant impairment does not contradict conclusion that plaintiff could perform his past relevant work].

The ALJ found that plaintiffs depression is only moderately severe. This does not mean that plaintiffs ability to perform basic work activities is not limited. The ALJ's conclusion simply means that plaintiffs depression does not functionally disable plaintiff from meeting the mental demands of her past work as a receptionist. To the extent plaintiff argues that her depression is so severe as to prevent her performing any substantial gainful activity, her contention is not supported by the record.

Although the use of such terms as “mild” and “moderate” in connection with a particular medical finding does not necessarily mean only a “mild” or “moderate” impairment, cf. Sitar v. Schweiker, 671 F.2d 19, 21 (1st Cir.1982) [“moderate depression does not necessarily mean only moderate impairment”], the record supports the AU’s determination that plaintiff's depression is not disabling.

For a mental condition to be disabling, there must be a “resulting persistence of marked restriction of daily activities and constriction of interests and deterioration in personal habits and seriously impaired ability to relate to other people.” 20 C.F.R. Part 404, Subpart P, Appendix I § 12.04, quoted in Lopez v. Secretary of Health and Human Services, 747 F.2d 37, 41 (1st Cir.1984). Putting to one side Dr. Saunders’ conclusion that plaintiff’s mental condition has become progressively worse, plaintiff does not dispute the AU’s finding that plaintiff has worked with some degree of mental impairment. It is clear from plaintiff’s testimony that she was able adequately to perform the tasks required of her former jobs, that she got along well with her supervisors and co-workers and that she left her various jobs for personal or physical reasons and not for any inability to cope. See Tr. at 43-47, 49. Moreover, plaintiff testified that since 1982 she has been quite capable to taking care of herself. She lives on her own, undertakes household chores and grocery shopping on a regular basis, drives, and regularly entertains visitors and conducts social contacts over the telephone. See Tr. 52-54, 58, 62. Plaintiff never mentioned being depressed at the hearing and, as the AU observed, the only psychological manifestations suggested by plaintiff’s testimony is that she occasionally loses her temper and throws things. Tr. 16. See Tr., at 64.

In reaching the conclusion that the nonexertional limitations imposed by plaintiff’s mental impairment do not significantly limit her ability to perform her past work, the AU accepted Dr. Kamm’s characterization of plaintiff’s functional limitations as falling within the mild to moderate range, and rejected Dr. Saunders’ conclusion that plaintiff is unemployable. It is well settled that it is the Secretary’s function to determine which professionals to credit, Diaz v. Secretary of Health and Human Services, 746 F.2d 921, 924 (1st Cir.1984), and that the court will not substitute its judgment for that of the Secretary in resolving conflicts in the evidence, Sitar v. Schweiker, 671 F.2d at 22.

Plaintiff argues that the psychological report and testimony of Dr. Saunders should have been accorded greater weight than the psychiatric evaluation submitted by Dr. Kamm. Plaintiff contends that, whereas Dr. Kamm’s report contains only a brief clinical impression, Dr. Saunders’ report and testimonial presentation is buttressed by two MMPI’s, two MBHI’s and between 15 and 20 hours of personal consultation.

However, contrary to plaintiffs assertions, Dr. Saunders’ conclusions are neither overwhelming nor uncontroverted. The AU did not totally reject Dr. Saunders’ findings. In fact the AU accepted Dr. Saunders’ diagnosis of moderately severe exogenous depression. What the AU expressly rejected was Dr. Saunders’ opinion that plaintiff is disabled. In reaching this conclusion the AU was entitled to rely on Dr. Kamm’s clinical impression and RFC assessment, as well as the testimony of the plaintiff. That Dr. Kamm’s assessment is based on his clinical impression does not render his findings any less worthy of consideration than Dr. Saunders' interpretation of the psychological tests he performed, or as not constituting the requisite medical findings contemplated by the regulations. See 20 C.F.R. § 404.1528(b). Cf. Bucklin v. Heckler, No. 84-0122-B (D.Me. January 8, 1985) [medical advisor’s diagnostic impression based upon psychiatric reports constitutes requisite medical findings]. Moreover, the fact that Dr. Kamm interpreted Dr. Saunders’ report as suggesting that plaintiff’s pain “may be” psychogenic in origin does not demonstrate that Dr. Kamm’s report “was rather haphazard.” Dr. Kamm’s report states only that Dr. Saunders' “notes” suggest a psychogenic basis for plaintiff’s pain; not that Dr. Saunders’ interpretation of the various tests suggests a psychogenic overlay. Tr. 52. Clearly, Dr. Kamm is entitled to interpret Dr. Saunders’ test results differently.

Nor is Dr. Saunders’ opinion—that plaintiff is disabled—binding on the AU. See 20 C.F.R. § 404.1527. Dr. Saunders bases this conclusion on his interpretation of various tests, which, he believed, showed that plaintiff’s condition had become progressively worse. The AU rejected this conclusion on the ground that Dr. Saunders’ “testimony and report fail to establish any deterioration in the plaintiff’s overall psychological status.” Tr. 15. To be sure, Dr. Saunders did testify that plaintiff’s mental condition has become worse, but aside from citing the second MMPI administered in December 1983 he does not really indicate what specifically in the test results demonstrated a progressive worsening in plaintiff’s condition. Tr. 34, 41. Nevertheless, it is readily apparent that the primary reason the AU rejected Dr. Saunders’ opinion of disability is that Dr. Kamm’s evaluation, which was also conducted in 1983, concludes that the functional limitations imposed by plaintiff’s mental condition are only mild to moderate and, as such, are not disabling.

Although the AU properly resolved the conflict between doctors Saunders and Kamm in favor of Dr. Kamm, the AU’s otherwise well reasoned analysis breaks down in his evaluation of plaintiff’s ability to meet the mental demands of her past work. Though not required to do so the AU based his finding that plaintiff is able to perform her past relevant work on the testimony of the VE. Having elected to do so, and in order for the VE’s testimony to be relevant on this issue, the AU was required to pose to the VE a hypothetical question which, at a minimum, must correspond

to [the] conclusions that are supported by the outputs from the medical authorities. To guarantee that correspondence, the Administrative Law Judge must both clarify the outputs (deciding what testimony will be credited and resolving ambiguities), and accurately transmit the clarified output to the expert in the form of assumptions.

Arocho v. Secretary of Health and Human Services, 670 F.2d 374, 375 (1st Cir.1982).

After eliciting from the VE the exertional and skill requirements of plaintiff’s previous jobs the AU asked whether, assuming the RFC for sedentary work but with the ability to sit and stand at will, and assuming further various physical limitations, plaintiff is capable of performing her past job as a receptionist. Tr. 69. Missing from the AU’s hypothetical is any mention of plaintiff’s mental condition. Yet, if supported by the evidence, the ALJ was required to include in the hypothetical any limitations imposed by plaintiff’s mental condition which would affect her ability to meet the mental demands of an office receptionist. See 20 C.F.R. §§ 404.1520(e), 404.1545(c). Although the ALJ found that plaintiff’s nonexertional limitations would not significantly limit her ability to perform her past job as a receptionist, Tr. 17, the ALJ fails to cite any supporting evidence. Certainly it is fair to assume that an individual suffering from a well documented mental condition which moderately restricts her activities, interests, and ability to relate to others, and which is no doubt compounded by physical limitations, would encounter some difficulty meeting the day in and day out mental demands of any job. In her description of the exertional and skill requirements of plaintiff’s previous job as a receptionist the VE does not indicate what the mental demands of the job of office receptionist, generally, are. See Tr. at 68. And although plaintiff described her receptionist job as involving answering the telephone and taking messages, and that there really “wasn’t much to do,” Tr. 47, there is nothing in the record indicating that receptionist jobs require greater or lesser mental demands than those suggested by plaintiffs testimony. In fact the VE characterized plaintiff’s receptionist job as “semi-skilled,” the definition of which, see 20 C.F.R. § 404.1568(b), strongly suggests a mental acuity greater than that contained in plaintiff’s description of her job as a receptionist.

Where, as here, such elastic qualifiers as “moderate” and “significantly” figure prominently in the AU’s ultimate conclusion it is manifestly reasonable to require the Secretary to explain with greater particularity how the plaintiff is capable of meeting the mental demands of her previous type of work. It would have been a simple matter to explore this issue with the VE. Having failed to do so the case must be remanded.

On remand the Secretary shall give full consideration to the question of whether plaintiff retains the ability to meet the mental demands of her past type of work. Such consideration might include, for example, the submission of the medical record and interrogatories to a vocational expert, or even a supplemental hearing. Should the Secretary require additional evidence or proceed with further administrative action plaintiff is to be afforded an opportunity to be heard.

Accordingly, it is hereby ORDERED that the decision of the Secretary is VACATED and the cause is REMANDED to the Secretary for further proceedings in accordance herewith.

      . Plaintiff filed previous applications for disability insurance benefits and for SSI on April 25, 1980. Tr. 76-70. Both applications were denied initially and upon reconsideration. Tr. 81, 84. On November 30, 1981 an ALJ determined that plaintiff was not disabled, Tr. 185-96, and on April 21, 1982 the Appeals Counsel affirmed the ALJ, Tr. 198-99. At the hearing on plaintiff's renewed applications the ALJ determined and plaintiffs counsel agreed that the prior adverse decision was res judicata through April 1982, since the plaintiff had not sought judicial review of the prior decision and there appeared to be no basis upon which to reopen the matter. Tr.-22.

      . See Tr. at 12-16 (AU); Tr. 235-36 (Dr. Parker); Tr. 239-40 (laboratory studies); Tr. 245-46 (Dr. Axelman); Tr. 254-59 (Dr. Irwin); Tr. 300 (Dr. Parker supplemental notes).

      . See Memorandum In Support of Plaintiff's Motion For Summary Judgment, at 2.

      . The fact that Dr. Kamm reviewed Dr. Saunders’ notes, as well as other relevant reports, suggests that Dr. Kamm’s assessment was not based on a quick clinical observation, but on all of the relevant psychiatric and psychological evidence.

      . Although plaintiff testified that because of arthritis in her hands she often drops knitting needles, cigarettes and coffee cups, Dr. Irwin observed that despite plaintiffs allegations that she is unable to grasp with either hand "this is manifestly an incorrect finding" and that plaintiff uses both hands "quite well.” Tr. 255. Therefore, the ALJ did not err in not considering plaintiff’s asserted manipulative impairment. Similarly,- the ALJ did not fail to Consider the testimony of the VE that assuming plaintiff displayed inappropriate behavior there are no jobs available for someone evidencing such behavior. See Tr. at 71-72. Although Dr. Saunders observed that plaintiff displays inappropriate behavior, see Tr. at 35-36, Dr. Kamm specifically found no evidence of inappropriate affect, Tr. 252.

      . Even though the ALJ found that plaintiff had worked with some degree of mental impairment, this determination does not relieve. the ALJ of his responsibility to assess fully plaintiff's present ability to meet the mental demands of her past work in relation to the mental demands actually required of office receptionists generally. See Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th Cir.1984) [once a severe impairment has been found, Secretary must inquire into physical and mental demands of plaintiff's past work in relation to present physical and mental capacities]. Here, the ALJ makes no attempt to correlate Dr. Kamm’s assessment with the mental demands required by plaintiff's past type of work as a receptionist.

      . Because the Secretary is required to consider the cumulative effect of a claimant's impairments, see Arocho v. Secretary of Health and Human Services, 670 F.2d at 375, the absence of any mention of plaintiff's mental impairment to the VE becomes more significant.

      . This is not a case where the plaintiff failed to present any evidence that she would not be able to meet the physical and mental demands of her former work. Compare Pritchard v. Secretary of Health and Human Services, supra. Through the testimony of Dr. Saunders and cross-examination of the VE the plaintiff made every effort to present her case on this issue.


author: POINTER, Chief Judge.

text:
    D.M. EAGAR, et al., Plaintiffs, v. SAVANNAH FOODS & INDUSTRIES, INC., et al., Defendants.
    No. CV 83-P-2492-S.
    United States District Court, N.D. Alabama, S.D.
    Aug. 22, 1984.
    On Motions for Final Judgment or Interlocutory Appeal Oct. 9, 1984.

      Charles Cleveland; Terrill W. Sanders, Birmingham, Ala., for plaintiffs.
    Ralph B. Tate; Mark S. Boardman, Stephen E. Brown, James Walker May, M. Christian King, Birmingham, Ala., for defendants.
   Memorandum of Opinion

POINTER, Chief Judge.

This case concerns the complete termination of a defined benefit pension plan. Plaintiffs, participants in the Jim Dandy Company Retirement Plan for Non-Union Employees (the Plan), seek under § 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1132(a)(1)(B), to recover lump sum payments in satisfaction of their vested and nonforfeitable right to an accrued benefit under the Plan and to recover surplus assets that will remain after payment of all Plan liabilities. The defendants are Savannah Foods & Industries, Inc. (SFI), the Plan sponsor; The Jim Dandy Company, a wholly owned subsidiary of SFI and Plan administrator; Western Grain Company, a wholly owned subsidiary of SFI that assumed Jim Dandy’s obligations under the Plan; Chat-ham Corporation, the successor corporation to Western Grain after Western Grain changed its name; the Jim Dandy Company Retirement Plan for Non-Union Employees; and the Bankers Life Company, the entity described as the trustee in the summary Plan description and the party currently in possession of the Plan assets.

The plaintiffs have moved for partial summary judgment. They argue that they are entitled both to a lump sum payment and to any surplus assets remaining after termination of the Plan. The defendants (except Bankers Life) seek summary judgment on the same two issues, arguing that neither the Plan nor ERISA provides plaintiffs with the right to a lump sum payment and that the Plan expressly provides for reversion of surplus assets to the defendants after payment of all Plan liabilities on termination. On the basis of the undisputed material facts, the court concludes that the defendants are entitled to summary judgment on these issues.

The plaintiffs also contend that they are entitled to recover their pro rata share of the contributions that allegedly should have been made during the portion of 1981 when the Plan was in effect. This contention, however, is mooted by the holding that the plaintiffs are not entitled to any surplus Plan assets and the fact there are sufficient assets to provide the plaintiffs with the rights guaranteed to them under the Plan.

The plaintiffs further assert that they are entitled to severance pay upon the termination of their employment,.a claim that is being pursued on behalf of the plaintiffs and other former employees in the separate case of Clarence Cory, et al. v. Savannah Foods, et al, Case No. 83-P-2052-S. In the present case, however, plaintiffs contend that they are entitled to service credits for this termination pay in the calculation of their benefits under the Plan. Neither side has addressed this issue in its motion for summary judgment.

Accordingly, a separate order will be entered granting partial summary judgment in favor of the defendants and reserving a decision on plaintiffs’ claim to service credits based on disputed termination pay for consideration in conjunction with the Cory case.

FACTUAL BACKGROUND

The undisputed material facts are as follows. Prior to April 20, 1981, SFI operated plants in Birmingham and Decatur through its wholly owned subsidiary, Jim Dandy. Jim Dandy’s non-union employees participated in the Plan, which was a defined benefit plan funded predominantly by Jim Dandy and SFI. On April 20, 1981, Jim Dandy sold its Birmingham plant to Western Grain Company, another wholly owned subsidiary of SFI, and SFI then sold its Jim Dandy stock to Willmac, Inc., an unrelated corporation. Western Grain Company assumed all obligations under the Plan with respect to employees at both plants. On June 12, 1981, Western Grain adopted a resolution terminating the Plan effective September 30, 1981. Earnings and service credits ceased on April 19, 1981, for the Decatur participants and on June 15, 1981, for the Birmingham participants. Shortly thereafter, Western Grain changed its name to Chatham Corporation.

During the course of the next year, the defendants submitted information to the Pension Benefit Guaranty Corporation (PBGC) concerning the proposed Plan termination, the proposed distribution of Plan assets, and the proposed method for calculating the proportionate shares due Plan participants. On June 24, 1982, the PBGC issued a Notice of Sufficiency stating that the Plan assets, in the opinion of the PBGC, were sufficient “to discharge when due all obligations of the Plan with respect to guaranteed benefits.” Several days later, the defendants gave the plaintiffs notice of the Plan termination, and offered them the option of electing a monthly benefit payable at age 65 under an annuity purchased from The Bankers Life Company or a cash lump sum payment computed on the basis of published PBGC actuarial assumptions for plans terminating on or about September 30, 1981. See 29 C.F.R. Part 2619, Appendix B. None of the plaintiffs elected either option, contending that they were entitled to lump sum payments calculated on the basis of actuarial assumptions contained in the Appendix to the Plan. Subsequently, the defendants withdrew their offer to make lump sum payments, and now contend that the plaintiffs are not entitled to any such payment under the Plan.

PLAINTIFFS’ CLAIM TO A LUMP SUM PAYMENT

The plaintiffs base their claim to a lump sum payment on the terms of the Plan, conceding that ERISA entitles them only to a monthly benefit upon reaching normal retirement age. See Fine v. Semet, 699 F.2d 1091, 1093 (11th Cir.1983). Section 11.02(a), which governs the distribution of Plan assets, provides that in the event of a Plan termination a participant’s right to his “Accrued Benefit” (as defined in Section 1.02) becomes fully vested and nonforfeitable. Section 11.02(a) also provides an order in which the assets of the Plan shall be distributed, and requires that this distribution be based upon the “present value” of a given participant’s benefits at the time of distribution. Section 1.02 defines “Accrued Benefit” as the annual retirement income to which a participant becomes entitled upon reaching normal retirement age, in the form of a single life annuity. Section 8.03 states that “[n]o person shall have any financial interest in, or right to, the Pension Fund or a part thereof, except as expressly provided for in the Plan.” Section 9 provides for the administration of the Plan by an administrative committee, and Section 9.08 provides that the committee’s good faith interpretation of the Plan shall be final and conclusive. Section 10.02 of the Plan, entitled “Small Payments,” provides that the administrative committee “may” direct that a participant’s benefit be paid in a lump sum if the Plan benefit payable is $100.00 or less per month. Section 10.02 further provides that those small payment lump sum amounts shall be the “Actuarial Equivalent,” as that term is defined in Section 1.06, of the participant’s Plan benefit. The Plan appendix contains “Lump Sum Factors” for calculating small payments lump sums pursuant to Section 10.01.

The plaintiffs argue that use of the phrase “present value” in Section 11.02(a) entitles them to a lump sum payment. They reason that, since the present value represents a cash equivalent of a future income stream, use of the phrase “present value” in Section 11.02(a) entitles them to a present cash equivalent of their Accrued Benefits. Section 11.02(a), however, merely states a method for valuation of participants’ proportionate benefits; it does not state in what manner or form the Plan is obligated to disperse those benefits. Moreover, it is manifest that the language of Section 11.02(a) requiring payment of “respective proportionate shares based upon the present value” of benefits at the time of payment was intended to apply only in the event that Plan assets should be insufficient to meet all Plan obligations. It provides that the “assets in the Pension Fund [shall be held and applied] in the following order, all persons in each class being entitied to their respective proportionate shares based upon the present value of their benefits at the time of application....” (emphasis added). The section then creates five categories for priority of payment. See ERISA, § 4044(a), 29 U.S.C. § 1344(a). These payment priorities necessarily become operative only when Plan assets are insufficient to meet all Plan obligations. If the plan has sufficient assets to meet all its obligations, the necessity to consult Section 11.02(a) to determine priorities never arises. Considering Section 11.-02(a) in its entirety, the court therefore concludes that the present value language in question applies only in the event that Plan assets are insufficient to meet all Plan obligations.

Accordingly, since in the present case Plan assets are sufficient to meet the Plan’s obligation to provide each of the plaintiffs with a monthly retirement income, the language of Section 11.02(a) is not brought into play and there is no basis for any claim of entitlement to a lump sum payment. The court therefore holds for the defendants on the issue of whether the defendants were obligated under the Plan to offer the plaintiffs a lump sum payment upon Plan termination.

PLAINTIFFS’ CLAIM TO SURPLUS ASSETS

The undisputed material evidence indicates that the Plan assets will exceed the cost of purchasing the necessary single life annuities for all Plan participants. The plaintiffs assert that they are entitled to the surplus assets, relying on the following language in the summary Plan description distributed to all Plan participants:

The Company expects to continue this Plan indefinitely; however, it does have the right to change, amend, or even discontinue the Plan. If the Plan ever does terminate, you have a vested right to your pension earned to the time of termination of the plan to the extent funded.
In the event that the plan is discontinued, the plan document lists the order in which funds in the plan must be paid out to participants and beneficiaries. The money in the plan cannot be used for any other purpose and cannot revert to the company.

By contrast, Section 11.02(c) of the Plan provides as follows:

Any surplus remaining in the Pension Fund, after the satisfaction of all rights or contingent rights accrued under the Plan with respect to such benefits and after distribution of any released reserves as above provided, shall, subject to the pertinent provisions of federal law or state law, be returnable to the Company.

The plaintiffs assert that the language in the Plan summary either effectively modifies the Plan or estops the defendants from claiming they are entitled to the surplus assets. Alternatively, they argue that the Plan summary contained a fraudulent misrepresentation of a material fact, for which the defendants should be held liable in damages. Plaintiffs base both their contract-related arguments and their fraud arguments on Alabama law and principles of common law.

Assuming for the sake of argument that plaintiffs’ fraud claims under Alabama law are not preempted by ERISA, nevertheless they have failed to show any detrimental reliance by them on the representations contained in the summary Plan description. Moreover, since the alleged fraudulent representation in the Plan summary concerned a future event, defendants would be liable for fraud only if they made the misrepresentation with an intent to defraud. Scholz Homes, Inc. v. Hooper, 287 Ala. 628, 254 So.2d 328 (1971). The material undisputed facts contain no suggestion that the defendants intended to defraud the plaintiffs by any misrepresentations in the summary Plan description.

Plaintiffs also contend that the language in the summary Plan description effectively modifies the Plan or estops the defendants from claiming entitlement to surplus Plan assets. In support of this argument, the plaintiffs rely on Gould v. Continental Coffee Co., 304 F.Supp. 1 (S.D.N.Y.1969). For several reasons, however, Gould does not support plaintiffs’ contention. First, Gould was decided before the enactment of ERISA, which brought about fundamental changes in the pension planning area. Second, the plan provision in Gould that the plaintiff sought to avoid would have resulted in forfeiture of vested benefits. In the present case, by contrast, it is clear that the plaintiffs will receive their vested benefits in full. Third, the plaintiff in Gould had clearly and detrimentally relied on misstatements in the plan summary.

The defendants argue that the language in the Plan summary should be construed to mean only that no Plan assets may revert to the employer until all Plan liabilities and obligations have been met. In support of their argument, the defendants rely primarily on two cases, In re C.D. Moyer Co. Trust Fund, 441 F.Supp. 1128 (E.D.Pa.1977), aff’d, 582 F.2d 1273 (3d Cir.1978), and Washington-Baltimore Newspaper Guild v. Washington Star Co., 555 F.Supp. 257 (D.D.C.1983), aff’d, 729 F.2d 863 (D.C.Cir.1984). The Moyer case involved a challenge to a pension plan amendment. The amendment provided for a reversion of surplus plan assets to the company. The challenge to the amendment was based on a provision in the plan prohibiting any amendment that would permit “trust corpus or income to be diverted to or revert to either of the employers or to be used for any purpose other than the exclusive benefit of the participants or their beneficiaries.” 441 F.Supp. at 1131. Despite the language of this plan provision, the court held that the amendment providing for a reversion of surplus Plan assets to the company was permissible. The court based its holding on the conclusion that the phrase “trust corpus or income” was intended by the parties to encompass only those assets necessary to insure full payments of all Plan obligations and liabilities. The court noted that its holding was reinforced by a scheme of elaborate priorities for distribution of plan assets, which nevertheless failed to include a direction for disposition of surplus plan assets. 441 F.Supp. at 1132.

Likewise, the Washington Star court upheld the validity of a plan amendment providing for a return of surplus plan assets to the company, despite a prior plan provision that provided in “no event shall any of the trust fund ... be returned to the Employer or be used for, or diverted to, purposes other than for the exclusive benefit of employees covered by the plan or their beneficiaries.” 555 F.Supp. at 258. Relying on Moyer, the court stated as follows:

The Plan document and Trust Agreement, taken as a whole, mandate this result. As a defined benefit plan, the participants, in the absence of an agreement to the contrary, have no right to a windfall resulting from an employer's overly generous contributions to the plan.... As noted above, the Plan document permits reversion. No effort was made to include within that document a method or provision for allocation of any surplus among the various categories of Plan participants. Such an amendment would likely have been appropriate had the parties intended to prohibit reversion.

555 F.Supp. at 261.

This court finds the rationale behind the holdings in Moyer and Washington Star persuasive. The Plan in the present case was funded predominantly by employer contributions, and there is no contention that ERISA prohibits the reversion of surplus assets in the present case to the defendants. See ERISA, § 4044(d), 29 U.S.C. § 1344(d). Over a period of time, pension plan participants in general stand to benefit more from a policy that encourages employers to fund pension plans generously than from a policy that entitles plan participants to surplus assets and thereby discourages employers from potentially excessive funding. The language in the summary Plan description may reasonably be interpreted as meaning that no assets may revert to the defendants until the Plan has met all liabilities. The interpretation of the summary Plan description is reasonable and comports with the relevant case law and the policies underlying ERISA. This court therefore holds that the defendants are entitled as a matter of law to any surplus assets remaining in the Plan after the Plan has satisfied all its liabilities and obligations.

A separate order shall therefore be entered accordingly granting summary judgment in favor of the defendants holding that plaintiffs are not entitled to lump sum payments or to the surplus funds. The plaintiffs’ contentions that they are entitled to service credits for wrongfully withheld termination pay is reserved for decision in conjunction with consideration of the issues in Clarence Cory, et al. v. Savannah Foods, et al., Case No. 83-P-2052-S.

On Motions For Final Judgment or Interlocutory Appeal

On August 22nd, 1984, the court entered a Memorandum of Opinion and Order holding that the plaintiffs are not entitled to a lump sum payment or any surplus assets remaining upon Plan termination. On September 25, 1984, the court held a conference to consider both the plaintiffs’ two motions for an order either directing entry of final judgment pursuant to Fed.R.Civ.P. 54(b) or authorizing an interlocutory appeal and the defendant Bankers Life Company’s motion for the appointment of a trustee ad litem. This Memorandum of Opinion and accompanying Order deal with these motions and other matters raised at the conference.

To begin with, the parties stipulated that a portion of the court’s August Memorandum of Opinion is in error in stating that the defendants’ offer to pay a lump sum computed on the basis of Pension Benefit Guarantee Corporation (PBGC) actuarial factors has been withdrawn. Accordingly, the court’s August Memorandum of Opinion is amended to reflect that the defendants’ initial offer of a lump sum based on PBGC factors remains open.

Second, the parties stipulated at conference that plaintiffs are entitled to appropriate service credits for any severance pay they recover in Clarence Cory, et al. v. Savannah Foods & Industries, Inc., et al., CV 83-P-2052-S. The issue of service credits for termination pay was left open in the court’s August Memorandum of Opinion. Accordingly, that Memorandum of Opinion is amended to reflect that, should plaintiffs prevail in the Cory case, they will be entitled to appropriate service credits for severance pay.

Upon consideration of the motion by Bankers Life to appoint a trustee ad litem, the court concludes that appointment of such a trustee at this time would create unnecessary administrative problems. Accordingly, that motion is denied, subject however, to further reconsideration on motion. Bankers Life, having interpleaded the pension plan assets into court, has also orally moved to be dismissed from this case since there is no evidence of any wrongdoing on its part. The court finds that this motion is well taken, subject however, to the rights of the other parties in this suit to obtain an accounting of the pension plan assets. Therefore, unless cause is shown within thirty days from this date, the court will enter a separate order dismissing Bankers Life.

Finally, upon consideration of plaintiffs’ two motions for an order either directing entry of final judgment pursuant to Fed.R.Civ.P. 54(b) or certifying an interlocutory appeal, the court concludes that entry of final judgment is appropriate since all issues in the case have been resolved, subject only to distribution of pension benefits. Accordingly, final judgment under Fed.R.Civ.P. 54(b) will be entered, thereby mooting the motion for an order certifying an interlocutory appeal.

      . Bankers Life has interpleaded the Plan assets into court, prayed for an adjudication of its rights and liabilities, and moved for appointment of a trustee ad litem. The court intends to deal with these matters in a separate hearing. Throughout the remainder of this Opinion, reference to "the defendants” includes all defendants except Bankers Life.

      . Because plaintiffs are not entitled to a lump sum distribution under the Plan, the court pretermits the issue of whether the defendants would be obligated to calculate present values by using the actuarial assumptions contained in the Plan appendix or the actuarial assumptions published by the PBGC for plans terminating on or about September 30, 1981. See 29 C.F.R. Part 2619.