Weiss

MEMORANDUM *

Donna Weiss appeals the district court’s grant of summary judgment in favor of the Northern California Retail Clerks Unions and Food Employers Joint Pension Plan in her action under Section 502 of the Employee Retirement Income Security Act, 29 U.S.C. § 1132 (e). We affirm.

Weiss does not dispute the Plan’s contention that its Administrator has discretionary authority to construe plan terms when making eligibility determinations. We review decisions made pursuant to this authority for an abuse of discretion. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 , 109 S.Ct. 948 , 103 L.Ed.2d 80 (1989).

Weiss first argues that there is a material conflict between the Plan Document and the Summary Plan Document (SPD) and that, under our precedents, she is entitled to benefits under the SPD’s more favorable language. See Atwood v. Newmont Gold Co., Inc., 45 F.3d 1317, 1321 (9th Cir.1995), overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir.2006) (en banc). A material conflict is present only if the SPD can *557 only mean one thing and the Plan Document can only mean the opposite thing. See, e.g., Bergt v. Retirement Plan for…

dissenting.

The central issue in Weiss’s appeal is whether the combination of an ambiguous Summary Plan Description (SPD) and a clear Plan Document creates a conflict or material difference. If so, the “SPD is controlling.” Atwood v. Newmont Gold Co., 45 F.3d 1317, 1321 (9th Cir.1995) (‘Where the SPD ... differs materially from the terms of the plan, the SPD is controlling.”); see also Banuelos v. Constr. Laborers’ Trust Funds for So. Cal., 382 F.3d 897, 903 (9th Cir.2004) (“Courts will generally bind ERISA defendants to the more employee-favorable of two conflicting documents-even if one is erroneous.”) (citing Bergt v. Ret. Plan for Pilots Employed by MarkAir, Inc., 293 F.3d 1139, 1145 (9th Cir.2002)).

I agree with the majority that the language in the SPD is ambiguous and that one of the two reasonable interpretations — indeed the more reasonable one— would permit Weiss to receive pension benefits as the surviving spouse of her deceased husband. I disagree, however, with the majority’s conclusion that, in this circuit, the SPD controls over the Plan Document only where there is an “irreconcilable conflict” between the plain meaning of the SPD and the plain meaning of the Plan…