*1 argument third obligation the' to as- Government’s judge trial ‘has “the that, in equally unavailing. of situation deter- It contends totality the the be- sess accepted re- the District in ap- whether the defendant cause Court erred not mining ” (quoting justice at 806 United plying Id. the obstruction of enhance- sponsibility.’ McDowell, 2 ment, 293 n. in granting acceptance States v. erred the Cir.1989)). There, is, we determined responsibility adjustment. of That totality in assessing the the District Court looking totality at the of the situation re- granting accep- an of the situation erred garding acceptance responsi- Williams’s reduction because responsibility tance of bility, the asks Government us to consider had to trial on some of gone the defendant alleged jus- Williams’s efforts to obstruct for sentenc- grouped the counts that were argument tice. This the fails because Dis- could The District Court ing purposes. specifically trict Court found there was no credit based granted acceptance have justice, obstruction of and the Government some counts because guilty pleas on the appealed finding. has not We will not before consider- grouped the counts were now allow the Government to revisit that credit, eliminating thus ation of such disguised “totality issue in a of the circum- acceptance availability of the reduction argument. stances” (“Were the District responsibility. Id. sum, that, we find because Williams a credit for ... grant able to Court pled guilty robbery charge, to the bank then we charges separately, ... three reduction in acceptance his sentence for However, the would see no error. Guide- responsibility regard with to that count multiple for this lines do not allow and, thus, improper, was not defer to we grouped be be- counts of conviction must the District Court. adjustment accep- be made for fore an can % sfc sfs # That situation is responsibility.”). tance of Accordingly, we will affirm Williams’s present here. conviction and not disturb sentence Next, argues the Government meted out the District Court. disregarded Application District Court Sentencing § Note 3E1.1
Guidelines, that a reduction which states be for a defendant who granted should not trial, factual elements proceeds to denies guilt, only guilt admits after a con- Stephen P. LASSER Sentencing Manu- viction. U.S. Guidelines However, § cmt. n.2. the District al 3E1.1 v. adjusted the offense level as to LIFE RELIANCE STANDARD one, only put count Gov- Williams COMPANY, INSURANCE on count proof ernment to its burden of Appellant. Cohen, where the counts
two. As noted No. 02-4123. granted grouped may are not and credit them there is no error when separately, Appeals, United States Court the reduction as grants the District Court Third Circuit. did not chal-
to a count that
defendant
Argued April
(“Were the District
lenge.
would see no inapplicable. tion Note was
Background
I. Stephen orthopedic Lasser is an sur- employed by Townsquare
geon who was (“Townsquare”), Associates Orthopedic *3 He sued to practice group. four-doctor disability alleges he Reli- obtain benefits Company Insurance ance Standard Life (“Reliance”) disability under the owes him purchased policy Townsquare insurance (the “Policy”). Policy The from Reliance when, disability benefits pays disease, or a claimant “is injury, illness material duties capable of performing [only] on regular occupation of his/her mate- [only] basis or some of the part-time rial duties on a full-time basis.” artery coronary Dr. Lasser suffers from 1986, 46, age at he underwent disease. later bypass surgery. As be- coronary cor- surgery was not apparent, came Rawle & (Argued), Bachrach Joshua Although Dr. Lasser rectly performed.1 PA, Henderson, Appel- for Philadelphia, for the next experience symptoms did not lant. surgery, following decade Nusbaum, Stein, (Argued), Stein Lewis (collo- infarction myocardial he suffered Kron, P.A., Goldstein, Succa- Bronstein & attack”). Aid- “heart Dr. Robert quially, a sunna, NJ, Appellee. for rich, treating physician, pre- Lasser’s change regimen a treatment scribed SCIRICA,* Judge, Before: Chief exercise, Aid- diet, therapy. Dr. drug GARTH, Judges. AMBRO and Circuit to reduce his advised Lasser rich also level, stress. including work-related stress COURT OF THE OPINION Dr. Las- September Accordingly, AMBRO, Judge. Circuit sched- on a reduced to work ser returned by load patient ule. He decreased Life Insurance Com- Reliance Standard 50%, night at longer no “on-call” he was Court incor- that the District pany argues weekends, did not and he its de- on arbitrary capricious rectly held 26, December surgery. On emergency Lasser was not Stephen termination ap- 1996, Dr. approved the terms of his within disabled disability benefits long-term plication conclude policy. We insurance Policy. affirm. under therefore did not err and [*] The Honorable ser’s high dure. Whereas Chief cant Rather than failure rate success surgeon Judge rate, performing an conducted May artery grafts have a (cid:127)— Anthony J. Scirica became vein according to Lasser’s 2003. grafts have a a vein artery graft, Las- graft relatively signifi- proce- phy- fifteen rather than sicians, diagonal artery. supplying (as it should have years. between branches, only blood being Moreover, 50% connected been), and 60% anterior Lasser’s vein one of was sewn to another after which was descending to two ten to artery graft, However, pe- bility in December after a capricious and that Dr. — riodic review of Lasser’s condition entitled to benefits. Rebanee primarily response appeals. to a medical Burke, by evaluation issued William II. Jurisdiction
whom Reliance hired to evaluate Las- —ser Reliance terminated Lasser’s bene- policy insurance issue is covered fits on the ground that was not disabled Employee Retirement Income Se- Policy. as defined in- Dr. Lasser curity (“ERISA”), Act of 1974 29 U.S.C. voked Reliance’s appeal administrative § seq. et Dr. Lasser sued recover procedures, prompted Reliance to benefits Policy, under and ERISA *4 — opinions obtain two additional medical preempts state-law claims in this context. — from Karel Drs. Raska and Field John 1132(a). Thus, § Id. the District Court as well as to commission a labor market jurisdiction had pursuant to 28 U.S.C. survey to determine the material duties of § jurisdiction 1331. We exercise appebate general occupation. Lasser’s Based § under 28 U.S.C. 1291. on opinions these medical and the sur- —vey as well as the fact that Dr. Lasser III. Standard Review returned to work at a full-time schedule The standard-of-review inquiry is more (including on-call and emergency surgery involved in this case than in most. The — duties) April 1999 Reliance concluded Supreme Court has mandated that courts that Dr. Lasser was not disabled review the arbitrary capricious under and performing the material duties of his occu- standard claim denials if ERISA cases pation and affirmed its earlier denial of plan “the gives benefit the administrator benefits. fiduciary or discretionary authority to de-
Dr. Lasser then filed a
in the
complaint
ehgibihty
termine
for benefits or to con-
8,
February
District Court.
In a
2001 strue
terms of the plan.”
Firestone
opinion, it denied
parties’
both
Bruch,
cross-mo- Tire
101,
& Rubber
v.Co.
489 U.S.
summary judgment
115,
tions for
(1989).
stated
S.Ct.
L.Ed.2d 80
that it
hearing
would hold a
to determine
“Under the arbitrary
capricious
stan-
the proper
dard,
standard of review.2 Lasser v.
an administrator’s
only
decision wib
Co.,
Reliance Standard
Ins.
130 be
reason,
overturned if it is without
un-
Life
(D.N.J.2001).
F.Supp.2d
After
supported by substantial
or
evidence
erro-
that
holding
hearing and deciding that a neous as a matter of law
[and]
court is
moderately heightened arbitrary and ca- not free to substitute its own
for
judgment
pricious standard of review
appropri-
that of the
in determining
defendants
ehgi-
ate, the Court reviewed the
bihty
record before
for plan benefits.” Pinto v. Reliance
review,
Rebanee. On the basis of
its
Standard
held
Cir.2000) (internal
Reliance’s determination of nondisa-
quotation marks
2. The Court's stated
denying
basis for
sum-
extent which the
administrator's decision
mary judgment was that "a
could
court
find
was tainted
his self interest.”
at 626-
Id.
party
for
considering
either
when
the admin-
dissenting
27.
colleague
Our
suggests that
istrator's resolution of
questions
these factual
Court erred
considering
extra-
heightened
under
arbitrary
standard of
resolving
record evidence in
We
merits.
review,”
capricious
parties
and that "the
disagree. The
recognized
District Court
have advanced to the
sup-
Court some factual
its
was limited
review
to the record before the
port
positions
for each of their
under-
claims administrator.
Id. at 630.
lying merits of the claim as well as on the
omitted).
Discussion
parties agree
IV.
Here both
authority.
Reliance such
grants
Policy
Regular Occupation
A.
explicit
terms of Dr. Lasser’s
Under
However,
entity that
if the same
alia,
disabled,
Policy, he is
inter
if as a
claimant is disabled
whether a
determines
injury,
or
he is
result of
illness
disease
benefits, that
disability
for
pay
must also
performing
“of
the material
capable
find him
incentive to
has a financial
entity
regular occupation
duties of
on a
his/her
Thus,
have noted
we
her not disabled.
basis or some of the material
part-time
that,
plan
insurer of an ERISA
when the
basis.” To determine
duties on a full-time
administrator, there is
a claims
also acts as
correctly
whether Reliance
decided
conflict of interest
or inherent
structural
qualify
did not
“heightened”
mandates a
benefits, we first determine what is his
of review.
Id.
capricious
standard
Policy
as the
leaves
“regular occupation,”
“sliding
employed
In Pinto we
argues
term undefined. Reliance
of scru
in which the level
approach
scale”
broad,
ge-
indeed
“regular occupation” is
fiduciary’s decision is “a
tiny
to the
applied
*5
In
Dr. Lasser
initially denying
neric.
ben-
(quoting
392
point.”
a
Id. at
range, not
1997,
in
efits December
Reliance said
Co.,
631,
F.2d
974
v. ARCO Chem.
Wildbur
job
a
“regular occupation
your
is not
with
Cir.1992)).
(6th
penetrat
It is “more
638
job in a
specific employer,
your
it is not
suspicion
partiali
greater is the
ing the
environment,
your
is it
work
nor
particular
suspi
the smaller that
ty,
penetrating
less
occupational
field.
speciality
particular
Id. at 392-93.
cion is.”
benefits,
for
evaluating your eligibility
your inability
must evaluate
we
hearing
on the
held
The
Court
it is
your
regular occupation
as
own
interest to
of Reliance’s conflict of
extent
any
typical
setting
in a
work
for
performed
Be
of review.
determine the standard
general economy.”
in the
employer
con
found no evidence of
cause
inherent structural
flict other than the
that,
meaning
if the
recognize
We
conflict,
correct standard of
it held that the
Reli
“regular occupation”
ambiguous,
is
height
“at the mild end of
review was
is entitled to deference
ance’s definition
scale,” and
arbitrary
capricious
and
ened
arbitrary
capri
applicable
under the
degree of defer
afforded a “moderate
thus
v. E.I.
of review. Skretvedt
cious standard
Nei
Co.,
Reliance’s determinations.
ence” to
DuPont de Nemours &
Cir.2001) (insurer’s
ap
this conclusion on
party disputes
interpretation
ther
However,
argues
that the
is en
peal.
ambiguous
provision
an
insurance
contrary to
the standard
unless it is
misapplied
District Court
titled to deference
However, we
allegedly
plain language).
reasonable
deferring
plan’s
to Reliance’s
occupation” is not
“regular
believe
usions.3
concl
capri-
decision under the
Court for
tor's
dissent criticizes the District
3. The
we do not
making
findings of fact on the basis of
review. But
de novo
cious standard of
to,
Kearney
decision
v.
the Ninth Circuit's
reference
that the District Court’s
believe
Co.,
(9th Cir.
of,
Furthermore, *9 (the standard Bruce Protocol Stage IV of the no but with ("Patients disease with cardiac conducted), typically tests are by stress Ordinary ac- physical activity. limitation only on was that Lasser pointed out Raska anginal pain, Dr. dyspnea, no tivity causes undue thirty-six three minutes .for the treadmill Therapeutic . palpitation.”) fatigue or patient seconds, for duration an insufficient ("Patients disease whose with cardiac AClass Dr. noted that Stage IV. He also restricted.”). to reach activity not be need physical receiving report, however, After this result, Re- aAs in a letter to Rebanee dated liance realized that Dr. had a Raska con- 3, 1998, June Dr. expressed Aldrich flict of practiced interest: he in the same Rebanee that he believed Dr. Lasser is physician group aas doctor from whom disabled and incapable of “resuming ab of Dr. Lasser previously sought an evalua- the customary and responsibilities tion, (whose Dr. Lubow evaluation is dis- of an orthopedic surgeon on a full-time below). response, cussed Reliance en- basis[,] ator least that he could not do so gaged Dr. Field as evaluating another without exposing himself to a high degree physician. While Dr. Field noted that of risk.” Dr. Aldrich’s reasoning underly- “[t]here is little definitive that evidence ing this that, conclusion was though even job emotional stress is causally related “by all objective criteria Dr. Lasser to the development or acceleration of coro- doing very well at point time,” nary disease,” artery he did acknowledge work-related might stress induce a deteri- physical “both and emotional stress oration in Dr. Lasser’s condition. More- are identified triggers myocardial acute over, according to Dr. Aldrich’s reasoning, infarction [heart attack].” He concluded a favorable classification under the New that Dr. Lasser could work forty-hour York Heart guidelines Association is of week, but capable “is not of resuming all bmited use in Dr. situation, Lasser’s as customary duties and responsibili- system ties of classification an orthopedic surgeon.” addresses a car- In partic- ular, patient’s Dr. Field diac opined that ability Lasser to perform should certain restrict his on-call or emergency surgery physical tasks regard without to stress. duties, given their stressful nature. Lowell, who performed a cardiac Dr. Lasser also relies on the evaluation Lasser, catheterization on Dr. opined also of his treating cardiologist, Aldrich, as that Lasser was agreed disabled. He with well those of Barry Drs. Lowell and Law- Burke Lasser’s “functional stress Lubow, rence opined who all that he is test at present excellent,” time is but First, disabled. argues cautioned that “the stress of profession evaluation issued Dr. Aldrich suggests will contribute poorer control of blood incapable he is of working in regu- pressure lipid therapies” and that “a lar occupation. When Rebanee asked Dr. less stressful environment would contrib- Aldrich to complete a form detailing Dr. ute graft to his longevity.” Dr. Loweb Lasser’s “current restrictions and hmita- concluded that “the tions,” severity of Dr. Las- he responded that Lasser should ser’s heart condition, “hmit while exposure readily physical and emotional measured stress.” He testing methods, noted also that traditional is a “[s]tress just well-documented renders him risk factor patient disabled as the the development of whose coronary artery dis- would not questioned itself, ease but context, within that presents to the with more overt precipitation of a myocardial infarction.” symptoms.”10 Burke’s examination of Lasser’s records was arrive at a reasoned evaluation of his condi- “sloppy” because it described a heart tion. cathet- erization occurring in October when in 10. He too criticized report Dr. Burke’s for its
fact performed July 1996. To Dr. failure "significant to mention the anatomic Raska this error suggested that Dr. Burke was problems with Dr. coronary anato- insufficiently familiar with Lasser's case to my.” *10 working in his occu- Lubow, physician regular who ex- the harm that a Finally, Dr. — might as pation precipitate the of Las- the dissent request Dr. Lasser at amined — counsel, require high.12 similar would raises the bar too a conclusion reached ser’s Aldrich, Raska, disability claimants will have the and Lowell. Most not that of Drs. to (financial their that, disposal on the recurrence means at or other- opined “[b]ased He wise) kind disease to obtain this of evidence. arteriosclerotic heart significant of Therefore, plus prima a claimant a an acute infarction once makes manifest[ed] showing disability physi- angioplasty through for and stent- of urgent the need facie (as Dr. Lasser here reports hiatus he had no cians’ has done year after a ten when ing pa- through physicians’ stating grant reports decision to symptoms, the condition) disability was cer- stress will exacerbate heart partial tient permangnt ques- if call correct, of his and the insurer wishes to into particularly view tainly (as those reports tion the scientific basis of anatomy.” here), has to do then attempted Reliance — Thus, evaluating physicians all will lie with insurer the burden Burke, whose exception with the of objection. of its It has support basis — agreed report the others discredited met that here. not burden precludes that Dr. Lasser’s heart condition duties safely performing him from on-call Alleged Resumption D. Relevance of surgery. Reliance’s con emergency Emergen- Lasser’s On-Call contrary is clusion to the thus cy Surgery Duties that Reli capricious. To the extent nondisability ance’s determination that, if emer argues Reliance even expect ... “it was unreasonable are mate surgery and on-call duties gency simply accept opinion ... rial, these resumption Dr. Lasser’s exacerbate Dr. Lasser’s stress would [that settles he disabled whether range any proba condition] without First, disagree. performing them. We that Dr. Lasser was bility proof or actual disputes he has harm,” increased we believe its determi performing these duties with resumed faulty. nation was 1996, this issue frequency same as before not do question involves factual we Regarding Burden Clarification Moreover, assum appeal. on even resolve Proof them, has alleged the facts as Reliance ing — as as Dr. well physicians re Dr. Lasser’s
We conclude with clarification Field, has disability opinion Rebanee proof whose garding burden — much have advised weight dis proving placed the burden of cases. While Thus, Lasser, these duties. to he should ability ultimately lies with Dr. that, medical evidence detailing him there is substantial statistics require provide Raska, Lowell, Aldrich, probability depends on ent 11. Like Drs. thoroughness of Dr. also While Lasser's criticized future risk’s occurrence. review, improper man- well as the quantified Burke’s precisely have not doctors conducted Lasser’s stress case, ner in which he reports suggest that in his their risk test. high. does of course stress the risk is While necessarily incapacitate an individual that the risk that stress 12. The dissent states (note, Cheney), example, President Vice injury will cause future is insufficient opined that doctors have Lasser’s case his However, disability. present constitute incapacitating. stress is pres- effects creates a whether risk of future *11 392
if Dr. performing on-call and District Court’s judgment in favor of Dr. duties, emergency surgery he is doing so Lasser. Indeed, his detriment. Dr. Lasser has argued that, to the extent that he has GARTH, Circuit Judge, dissenting. activities,
resumed these
he did so out of
obliged
—
I am
majori-
dissent from the
economic necessity
because Reliance
ty’s judgment in favor of Dr. Lasser.
discontinued his
A
benefits.
claimant’s re
turn to work is not dispositive of his or her
(1) The District Court
failed
adhere
disability when economic necessity compels
to our established standards of review and
him or her to return to work. Hawkins v.
precedents.
our
See Lasser v. Reliance
First
Corp. Long-Term
Union
Disability
Co.,
Standard
Ins.
616,
130 E.Supp.2d
Life
Plan,
914,
(7th
(“A
326
Cir.2003)
F.3d
918
(D.N.J.2001)
(“Lasser
630
I”)
(“th[is]
desperate person might force himself to Court anticipates adopting
procedure
work despite an illness that everyone
set forth in Kearney
Co.,
[v. Standard Ins.
agreed
totally
was
disabling.”); Levinson
(9th
1999)
(en banc)
Circuit
]
v. Reliance
Co.,
Standard
Ins.
Life
and making plenary findings
fact pursu
(11th
1321,
Cir.2001) (a
1326 n. 6
ant to Federal Rule
of Civil Procedure
claimant’s status
aas
full-time employee
even though no new evidence may be re
should not constitute reliable evidence that
ceived
case.”)1
on that branch of the
By
he is
able to
the material duties of
so doing, the District Court
erred
giv
occupation
on a
basis);
full-time
Stark
only
service,
ing
lip
but no required true
v. Weinberger,
(7th
1. The District opinions Court filed two in this filed Lasser v. Reliance Standard 8, 2001, case. On February I, it filed Lasser F.Supp.2d (D.N.J.2001) ("Lasser 130 F.Supp.2d 13, 2001, II"). and on June *12 Pinto’s, of sliding scale arbi- (referring to re- by Reliance written (4) policy The review).2 capricious and benefits, trary Dr. Las- that for quires performing the from disabled had be ser a then Court conducted District The occupation. regular of his material where it 2001 April trial on bench materiality rested proving of burden relevant to testimony only heard Walsh’s materiality No evidence Dr. Lasser. our standard heightened of how the issue record. the appears sliding on Pinto’s be should of review nor testify, did Lasser did scale. Dis- by the was shown (5) No deference reiterate-the I other witness. any Walsh’s, the Administra- Mr. Court trict to address hearing was the purpose of (a) materiality that: tor’s, determinations or biased was whether Walsh conflicted (b) demonstrated; Dr. Lasser re- was employee. Reliance’s was he because his full- to, performing, was and turned a determining duty the had Walsh (c) and “emergency” “on- occupation; time as well as benefits eligibility for claimant’s as ma- established were not services call” the funds out of benefits those of paying only services the terial; these were yet, If reaps profits. its which Reliance perform; and not to told was Dr. Lasser biased, Pinto the deference under then disabilities future (d) stress nor neither would be his determination accorded be dis- 'present Dr. Lasser’s establish could “calib- deferential, court must and the less ability. to the intensity of review [the] the rare] by (6) taken The actions Pinto, 214 F.3d conflict.” intensity of the Reliance, as by upon relied evidence the Pinto, biased, then under If not at 393. Walsh, made the determinations well as employed to be of deference the standard Administrator, determined be the absolutely “deferential, but not be would under our capricious nor to be event, But, in def- either Id. deferential.” precedents. standards accorded. had to erence deter- Thereafter, Court the District I. de- a “moderate would give that it mined determina- to Walsh’s of deference” gree par- after both to us comes appeal This or of bias evidence no it found tions It summary judgment. for ties had moved II, Lasser by Walsh. exhibited conflict judgment case summary remained has at 623. F.Supp.2d only look could Court the District record. Court administrative developed stage, the the At hearing inquiries and end its required pertinent outlining briefly begin I rec- existing administrative review February In its history. procedural But, District Court no more. ord-and denied the District opinion, further, proceeded that. It do did not summary judg- cross-motions parties’ context summary judgment despite hold that it would It then stated ment. own find- case, made its and it instant Walsh, Admin- if hearing to determine at 642. Id. merits. of fact on ings a conflict suffered istrator, was biased (cid:127) courts district precedents, our Reliance. Under employee was an “merits-trials” so-called 625-26, cannot conduct I, F.Supp.2d arbitrary and heightened form compa- that, rants an insurance "when Pinto held Pinto, 214 review." benefits, capricious standard administers ny both funds at 378. that war- acting a conflict under generally when determining appropriate pation. conflict- The relevant part of the policy of-interest review I standard.3 As have provides: stated, the District Court should have lim- “Totally Disabled” and “Total Disability” ited its findings to a determination of what mean ... that as a result of an Injury or the appropriate standard review would *13 Sickness, during the Elimination Period be, and then should have continued on to and thereafter an Insured per- resolve the summary judgment question form the material duties of regu- his/her pursuant to that standard. occupation.... lar Accordingly, I would have returned this App. added). at 139 (emphasis Critical to case to the District Court with the di- analysis, this is that the burden prove rection that it all expunge its merits find- materiality is on Dr. Lasser because the ings and discussion and then proceed burden of proving coverage is always on prescribed its function of ruling, the II, claimant. See Lasser on the administrative only, record wheth- F.Supp.2d Pinto, at 639 (citing 214 F.3d at er Walsh’s denial of benefits was arbitrary 8). Lasser, n. however, submitted capricious. evidence, no proofs, affidavits, no no no witnesses, and no depositions on the issue
II. of materiality. Indeed, the record as to Although the issue District this is barren.4 purported Court to subscribe to the correct standard of Despite the silence of the regard- record review, a fair reading of the District ing materiality, the District Court never- opinions Court’s not; indicates that it did theless held that Dr. Lasser had made out it merely gave lipservice to the deference his burden of proof on materiality. To do to be accorded the Administrator’s de- só, the District Court relied principally on terminations. diminution Dr. Lasser’s income
Pursuant plain language of Reli- he when discontinued emergency and on- ance’s policy, whether Dr. Lasser is “total- call duties. Id. at 639-40. The majority, ly disabled” hinges on whether too, he can finds this diminution income to be perform the “material” duties of his Yet, occu- controlling. must remembered 3. The District relied aon Ninth Circuit The District Court yes." answered Maj. op. which, en divided banc contrary case to Third But, out, at 387. pointed I have it was not jurisprudence, required Circuit deferential, novo, de the function of the District Court to make Kearney, review. See 175 F.3d finding. a such Nor is it the function this 1084. Kearney, lawyer with a heart uphold Court to finding such a ap- when it played condition who several sets of tennis pears in summary judgment context. weekend, every up car-raced per to 120 miles hour and had opinions Rather, medical that he could majority should have examined work, return to contested the cessation record, of his have, Ias for evidence of material- disability policy payments. at Id. 1086. The ity night as to calls emergencies. Had District Court accorded de novo review and so, majority learned, done it would have ruled in favor of the company. insurance Id. did, Ias that no such evidence exists-and it is at 1086-87. A fractured en banc court re- that evidence that the Reliance policy re- versed, approving de novo finding review but quires. disputed material fact. Id. 1093. Moreover, proof the burden of as to materi- ality rests majority The with Dr. Lasser and the opinion majority seeks answer its question, as, opinion's own purported posed which it has respecting "When clarification he [Dr. longer night Lasser] no proof handled burden call change does and emergency surgeries, they were prescription. material? maj. See op. at 391. vocational of such Moreover, the use (from Sep- of time during period disability benefits eligibility 1997) studies that Dr. to December tember Circuit. accepted practice is an disabled,” was at- he “totally Revere See, v. Paul e.g., Russell and tasks functions his office to all tending Cir.2002) (labor (elective) scheduled performing he was jobs within identified study which market time, was collect- he the same At surgery. not re- did occupation claimant’s Reliance. from disability benefits ing total conten- travel, plaintiffs contravened quire relied Court also disabled he remained tion cardiologists, reports medical various travel, hours and extended not work could Dr. Las- stated that merely they although required). position his current *14 and “emergency” perform not ser should unrebutted stands evidence of this All functions those that work-not “on-call” appropriate the Again, Dr. Lasser. of ortho- occupation to his “material” were or not Reli- whether review of is standard Id. surgeon. pedic in deter- capricious arbitrary and was ance his meet to Dr. hand, that Lasser presented mining
Reliance, the other on failed that Dr. is: materiality, that materiality. Reli- burden of the issue on evidence of material perform the not could general Lasser duties of the to looked ance Nowhere occupation. regular Dictionary of of his duties in the defined as surgeon “emer- that evidence is there (“DOT”) in record from the Titles Occupational only work tasks-the “on-call” and gency” of Labor. Department States United not could told he was Dr. Lasser which are work “on-call” “Emergency” and/or ev- Lasser’s to material perform-are Dr. Las- duties. in material included not sym- I am Although day occupation. ery the con- no evidence presented has ser and med- financial to Dr. pathetic trary. members I sure the am difficulties-as ical recognized Furthermore, is the DOT sympathy too-such are majority See, industry. in the vocational authority “emer- as evidence substitute Reliance Standard v. Gallagher e.g., material work are “on-call” and gency” (4th Cir. 272-73 surgeon. orthopedic anof occupation the reasonable (DOT objectively 2002) an is troubling Furthermore, it I find of duties material determining the tool for study, nor no vocational presented description job “general occupation; an field, or the experts from evidence any involve must DOT, applicable, to be of his the members evidence even necessarily ev but comparable con- himself, support own office added). (emphasis duty.”) ery in fact mate- were these tasks tention no evi- has been there no gave particular, In rial. District Similarly, the partners three whether use as to in its dence Reliance whatsoever deference to the respond and would handle study pro- This could survey. a labor market duties, emergency on-call practice’s that “on-call” evidence direct vided lead could circumstances although such restrictions duties-the “emergency” Dr. Lasser. income a diminution proscribed- physicians Dr. Lasser’s which record the no also evidence was There provided Dr. Lasser not material. were sched- could Dr. Lasser nor, I earli- as stated studies vocational no all other as well surgery, elective uled contradicted which evidence er, any other tasks. procedures office materiality. evidence Reliance’s III. so, In doing the opinion majority ignores the claim evaluation framework estab- majority, sense, I has fallen into the lished very language of the pattern same analysis employed by the policy First, that it quotes: District claimant’s Court. Instead of addressing and condition Next, is evaluated. assessing basis, claim- the rationale and the ant’s regular occupation evidence is evaluated and led to the Administrator’s the material duties benefits, determination thereof denying are defined. and then Finally, giving appropriate claimant’s condition to that is com- deference deter- pared mination, against majority material duties discusses the deter- evi- as if mined to be subjected required dence it his regular to de occu- novo pation. review so, after It appears trial. Lasser, doing draws its Court, own conclusions and now substitutes this Court its would own end judgment the inquiry just as to after who and what first step. is to be believed.
Instead of looking to the evidence
IV.
none)-or
materiality-(there
the evi-
Another example of the District Court’s
dence
whether “emergency” and “on-
*15
failure to defer to Walsh’s determinations
procedures
call”
material-(the
are
evi-
revolves around Dr. Lasser’s continuing to
is
dence
uncontradicted that
they are
work while receiving disability payments
not)-the majority opinion reviews the Dis-
$6,000
of about
month,
as well as Dr.
trict Court record as if it arose from a
Lasser’s return to work after his benefits
non-jury fact-finding
That,
trial.
I sug-
were discontinued.
gest, was the error the District
fell
Court
Reliance argues that Dr.
into
Lasser
and it is
cannot
compounded by the majority
be totally disabled because in
panel.
this
December
1997 he returned to “full-time” unrestrict-
I also find
the
majority’s preoccupa
work,
ed
including “emergency” and “on-
tion with the definition of “regular occupa
duties,
call”
without consequence to his
tion” misses the
Here,
mark.
we are con
health. See
at 263.
App.
Reliance further
cerned only with the 'policy’s definition of
contends that
it was reasonable because
“total disability” which concentrates on
none of the doctors stated that he would
material aspects of Dr.
practice.
be incapable of performing a full-time
The majority relies on the Second Circuit’s
schedule and Drs. Burke and Field specifi-
decision in
v.
Kinstler
First Reliance Stan
cally evaluated Dr.
as being
Lasser
capa-
Co.,
dard
Ins.
(2d
397 Group Ins. Program v. Orvosh e.g., returning doctors, by of his ommendations 123, 129 Employees, necessity. Salaried of economic out those to Ins. v. AIG 627, Cir.2000); Hightshue 5,n. at 626 II, F.Supp.2d (a Cir.1998) (7th 1144, 1148-49 F.3d policy’s satisfying But, without reasonable, af- must be decision, if ma- plan’s tasks inability condition an presents claimant if the even agree firmed cannot I occupation, terial ful- Here, has position). in his office working opposite Lasser, who was procedures all established “to- with complied surgery, ly elective performing replete record Administrator’s and the tally disabled.” the Administra- supporting evidence with this has addressed Circuit Eighth tor’s decision. to to necessity relating economic issue of to Dr. similar context in a tal v. Prudential In Galman Lasser’s. V. (8th Cir. America, F.3d Co. of Court’s Moreover, District claim that a held
2001), Eighth Circuit of “stress” issue reliance majority’s disability when total assert ant analyses. their not do credit does of wheth work, regardless returned has of “economic out work he returned er from the evidence I consider again, Once of benefits denial an initial after necessity” lens through record administrative adminis results awaiting the while stan- deferential Under of deference. 771- Galman, appeal. trative Court, dard, is clear suf attorney who trial awas 72. Galman erred. majority, then disease, artery heart coronary fered *16 of none that alia, prior First, undisputed two it is of, inter history awith claim disability disability supported his who based doctors He attacks. heart medical of degree any aggravating of with the risk on stated claim, part, ever in Dr. Lasser to risk the stress increased to certainty due condition his heart Re- denied, employment. Galman full-time returning was to the claim After work. against asserting that insure not full time does policy to work liance’s fu- returned A disability. work return to present him disability-only “forced the denial ture The 771. determines at who expert Id. reasons.” or other financial doctor Id. based for benefits. claim is disabled rejected patient his court that should of stress effects possible future so that risk quantify have Lasser implies that majority if it determine can maker decision ERISA week, and forty-hour to work unable was Thus, an disability. present constitutes mis- majority But disabled. thus was may graft venous opinion insurer An jurisprudence. our apprehends not does years five another survive not merely be- capricious arbitrary and not of Reliance’s the condition satisfy opinions medical on other relies it cause requires policy policy-a it is coverage; denial in a that result material perform unable be Lasser “clearly if decision such To time. at this occupation his duties the rec- the evidence supported blind may go I, judge, as a illustrate: com- has failed the administrator ord or now, that blind if I am years-but five by the required procedures ply with me render deemed Roche, possibility v. Abnathya plan.” Hoffmann-La disabled. also, presently Cir.1993); see 40, Inc., 2 F.3d I think we recognize all stress, lar fitness as “excellent,” his cardiac condi- it may while affect cardiac patients, does tion as stable and further stated pa- not necessarily incapacitate them, pre- or tients with a New York Heart Association vent them from successfully to, returning Functional Class I level typically “an have and performing, jobs, i.e., stressful Vice overall low risk of cardiovascular morbidi- President Dick See, Cheney. e.g., Coker v. ty mortality.” App. at 229. Metropolitan Co., Ins. Life (8th Cir.2002) 798-99 (plan not arbi- VI. trary and capricious in denying benefits, I believe that the District even where the should claimant’s doctor declared have determined, on him disabled established ad- based on the exacerbating record, ministrative stress); factor of whether the Adminis- Gooden v. Provident trator & his abused Accident discretion was arbi- 335 n. 8 (5th trary Cir.2001) capricious (dismissing determining at claimant’s com- plaint least the following that his matters: insurance company failed to account for his doctor’s concern of the (a) Did Dr. Lasser meet his burden of stress associated job). with his establishing the material tasks and aspects
Based on the record, administrative practice? was not arbitrary and capricious for Reli (b) Are emergency surgeries and on-call ance to determine that Dr. Lasser was not parts material of Dr. Lasser’s func- “disabled” based on any risk of relapse tions anas orthopedic surgeon? Indeed, stress. stress tests subse (c) Could and did Dr. Lasser quent to his heart attack in July 1996 did elective (scheduled, not emergency) not reveal sur- any chest pain or EKG abnor gery as procedures material malities during occupa- cardiac testing, only a tion? “very small myocardial infarction” which was “very small and probably clinically (d) Could Reliance’s policy as drawn insignificant.” App. at 208. Three car take into account future disabilities that diologists rated Dr. Lasser aat Functional Dr. may suffer or was it limited to *17 Class I level for physical capacity on the only the current or present disability
New York Heart Association Functional which Dr. Lasser may or may not have?
System,
Classification
which level desig
It is these matters with which the Dis-
nates “[pjatients with cardiac disease but
trict Court had to concern itself in deter-
with no limitation of physical activity.”
mining whether the Administrator’s denial
II,
trict Circuit. Third the District remand ser 12, 2002. Dec. Argued on the sum under case consider properly 25, 2003. Sept. Filed def standard, giving Pinto judgment mary theAs determinations. Walsh’s erence noted, a court recently just
Supreme Court standard; correct actually apply must mere citation lipservice mere See suffice. will not of review standard — U.S. -, -, Vincent, v. Price (2003) L.Ed.2d S.Ct. recited Circuit the Sixth (holding 28 U.S.C. review under standard correct it when apply 2254(d)(1) did not then but § *18 jeopardy question double it reviewed issue.) dissent. Thus, respectfully I notes which the circulation catecholamines Aldrich, considered Dr. physician, Lasser’s precipitant to be a have been shown Associa- York Heart to be New Lasser and sudden infarction (“Patients myocardial acute II with Class Functional tion Lasser’s opinion, Dr. Raska’s death.” limitation slight with disease cardiac stress reduc- graft made vein unsuccessful comfortable They are activity. physical as increased important, especially tion symp- experience but exertion with mild earlier fail- bring about even could stress grades strenuous the more toms with context, he In this graft. ure Class Therapeutic activity.”) and ordinary disability benefits Lasser’s Dr. opined whose (“Patients disease cardiac with C revoked been not have should mod- activity be should ordinary physical the material duties safely perform “cannot more strenu- and whose restricted erately — surgeon.”9 discontinued.”) orthopedic anof should ous efforts in Functional Lasser was said that Raska prognosis Burke described 7. Dr. Therapeutic C. Class I and regi- stabilizing Class "plaque awith "excellent” slight prevent "ace inhibitors men” and 9.Moreover, sharply critical Raska with exer- response associated hypertensive evaluation, of Reliance’s the basis Burke's cise." While benefits. to terminate decision initial underwent according Dr. Burke Dr. Burke con- points out that also 8. Reliance he exercised test in stress I treadmill Class be in Functional Lasser to sidered