dissenting.
Edith Gaines was an employee in the clothing industry insured under a collectively bargained for multiemployer pension and disability plan, administered by defendant Amalgamated Insurance Fund. Plaintiff left her employment on August 4,1978, alleging permanent and total disability. A doctor’s report in the record finds Mrs. Gaines suffers from a variety of chronic conditions, including degenerative arthritis, diabetes, and hypertensive cardiovascular disease, and states that she was totally and permanently disabled as of October, 1978.
In September, 1978 plaintiff filed an application for disability benefits under the Social Security Act. These benefits were awarded by an Administrative Law Judge by decision dated August 3, 1979, which stated that “beginning on April 23, 1979, the claimant was under a ‘disability’ as that term is defined in the Social Security Act.” Payment of Social Security benefits does not begin until five months after this onset date. 42 U.S.C. § 423(c)(2)(A) (1982). Therefore, Gaines began to receive Social Security disability benefits in October 1979.
In February 1980, Gaines filed an application for disability benefits under her fund’s retirement plan. There is no question that she met the length of service requirements of the plan and was permanently and totally disabled under the meaning of the plan provisions. The trustees of the plan rejected her application, however, because they concluded that she was not “eligible to receive disability insurance benefits under Title II of the Federal- Social Security Act within nine months of the last date of Covered Employment,” (emphasis added), as required by the plan.
The trustees interpret the plan’s requirement that a participant must be “eligible to receive disability insurance benefits ... within nine months” to mean that s/he must not only have an onset date established by the Social Security Administration within 9 months, but also must be entitled to receive benefits commencing on (or dating retroactively back to) a date within 9 months. Thus, according to the trustees, although Gaines was found by the Social Security Administration to have become disabled within nine months of the last date of covered employment, she was nonetheless not entitled to her. disability pension because the 5 months waiting period established by statute for disability claimants precluded her from receiving benefits within the nine months.
The district. court found that the trustees’ interpretation was arbitrary and capricious, the agreed upon standard of review, and entered judgment for plaintiff. In Dennard v. Richards Group, Inc., 681 F.2d 306, 314 (5th Cir.1982), the court stated, “A rational and reasonable interpretation of a plan may still be arbitrary and capricious if contrary to the plain meaning of the plan.” The court further stated, “When the trustee’s interpretation of a plan is in direct conflict with the express language in a plan, this action is a very strong indication of arbitrary and capricious behavior.” Id. We also have recently held that when a trustee’s decision deviated from the terms of a plan or established interpretations, that determination was arbitrary and capricious. Wolf v. National Shopmen Pension Fund, 728 F.2d 182, 187-89 (3d Cir.1984).
I agree with the district court that the trustees’ interpretation of the language “eligible to receive” as if it read “entitled to receive” or “actually receiving,” was contrary to its plain meaning. In the first place, the plan itself does not define “eligible to receive ... disability insurance benefits,” and we must therefore refer to the meaning of “eligibility” under the Social Security Act. That Act uses the different term “entitlement ” to refer to the date on which (or back to which) payment is due. *29242 U.S.C. § 423(a)(1) provides that, “Every individual who — ____(D) is under a disability ... shall be entitled to a disability insurance benefit (i) for each month beginning with the first month after his waiting period ... in which he becomes so entitled to such insurance benefits____” (emphasis added).
In the second place, the trustees have proffered no clear or credible explanation to support their very restrictive interpretation of this requirement. The attorney who acts as counsel to the fund and who advises the trustees testified for them that the trustees chose not to make an independent determination as to whether a participant was totally and permanently disabled, but instead delegated that determination to the Social Security Administration in order to save the cost of maintaining fund physicians. The trustees “consider the onset date the date that Social Security says you are now in fact totally and permanently disabled.” App. at 83a.
He stated the nine-month rule was adopted by the trustees to insure that the termination of employment was disability related. The only rationale provided by defendants was that the trustees intended to establish a three-month grace period following termination of employment (the nine months set forth in the plan minus the five full months waiting period) because the determination of onset is inexact. According to the attorney’s testimony, SSA’s establishment of a payment date within nine months serves to establish that a participant became disabled within three months of the last day of covered employment, and this three-month period provides a margin of error for a determination that the termination was disability related.
I believe the trial judge justly rejected this testimony, construing the nine-month period to mean only three months, as implausible and self-serving. The trustees admittedly were relying on the determination of disability by the Social Security Administration. The onset of disability date, under the statute, is itself a determination of permanent disability, since the statute requires a finding that the individual cannot engage in any substantial gainful activity by reason of the impairment “which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (1982). Therefore, absent some language in the plan to the contrary, there is no basis for the attorney’s claim that the trustees intended to use the Act’s five-month waiting period as a means to establish either the fact of disability or its relation to employment.
Indeed, nothing prevents the trustees from enforcing the portion of their own plan which requires that employment be “terminated by reason of disability.” By not independently inquiring into the timing of disability and by instead relying on the Act’s five-month waiting period, the fund has reached the anomalous interpretation that a person such as Mrs. Gaines who claims to have left employment by reason of disability is excluded from disability benefits, whereas a person who suffers from an unrelated disabling accident within three months of termination receives a disability pension.
Furthermore, if the framers of the plan had intended to establish a requirement such as that which the trustees now favor, the plan could easily have been worded in terms of a “date of entitlement” to benefits within nine months, or explicitly stated that the date of actual payment (or retroactive payment date) must be within nine months, or (simplest of all) stated that the onset of disability date determined by the Social Security Administration múst be within three months of termination of employment. That the plan does not use any of the above language is strong evidence that it was not intended to bar eligibility for those unfortunate beneficiaries for whom the SSA sets an onset date of between four and nine months after leaving employment. I would affirm the judgment of the district court.