Stephen P. Lasser v. Reliance Standard Life Insurance Company

344 F.3d 381, 31 Employee Benefits Cas. (BNA) 3014, 2003 U.S. App. LEXIS 19345, 2003 WL 22146433

• Court: Court of Appeals for the Third Circuit
• Decided: September 18, 2003
• Docket: 02-4123
• Status: Published

Opinions

OPINION OF THE COURT

AMBRO, Circuit Judge.

Reliance Standard Life Insurance Company argues that the District Court incorrectly held arbitrary and capricious its determination that Stephen Lasser was not disabled within the terms of his disability insurance policy. We conclude that the Court did not err and therefore affirm.

I. Background

Dr. Stephen Lasser is an orthopedic surgeon who was employed by Townsquare Orthopedic Associates (“Townsquare”), a four-doctor practice group. He sued to obtain disability benefits he alleges Reliance Standard Life Insurance Company (“Reliance”) owes him under the disability insurance policy Townsquare purchased from Reliance (the “Policy”). The Policy pays disability benefits when, because of injury, illness or disease, a claimant “is capable of performing the material duties of his/her regular occupation on [only] a part-time basis or [only] some of the material duties on a full-time basis.”

Dr. Lasser suffers from coronary artery disease. In 1986, at age 46, he underwent coronary bypass surgery. As later became apparent, the surgery was not correctly performed.¹ Although Dr. Lasser did not experience symptoms for the next decade following the 1986 surgery, in 1996 he suffered a myocardial infarction (colloquially, a “heart attack”). Dr. Robert Aid-rich, Lasser’s treating physician, prescribed a treatment regimen of change of diet, exercise, and drug therapy. Dr. Aid-rich also advised Lasser to reduce his stress level, including work-related stress. Accordingly, in September 1996 Dr. Las-ser returned to work on a reduced schedule. He decreased his patient load by 50%, he was no longer “on-call” at night or on weekends, and he did not perform emergency surgery. On December 26, 1996, Reliance approved Dr. Lasser’s application for long-term disability benefits under the Policy.

However, in December 1997, after a periodic review of Dr. Lasser’s condition — and primarily in response to a medical evaluation issued by Dr. William Burke, whom Reliance hired to evaluate Dr. Las-ser — Reliance terminated Lasser’s benefits on the ground that he was not disabled as defined by the Policy. Dr. Lasser invoked Reliance’s administrative appeal procedures, which prompted Reliance to obtain two additional medical opinions — from Drs. Karel Raska and John Field — as well as to commission a labor market survey to determine the material duties of Dr. Lasser’s general occupation. Based on these medical opinions and the survey — as well as the fact that Dr. Lasser returned to work at a full-time schedule (including on-call and emergency surgery duties) — in April 1999 Reliance concluded that Dr. Lasser was not disabled from performing the material duties of his occupation and affirmed its earlier denial of benefits.

Dr. Lasser then filed a complaint in the District Court. In a February 8, 2001 opinion, it denied both parties’ cross-motions for summary judgment and stated that it would hold a hearing to determine the proper standard of review.² Lasser v. Reliance Standard Life Ins. Co., 130 F.Supp.2d 616, 630 (D.N.J.2001). After holding that hearing and deciding that a moderately heightened arbitrary and capricious standard of review was appropriate, the Court reviewed the record before Rebanee. On the basis of its review, it held Reliance’s determination of nondisa-bility arbitrary and capricious and that Dr. Lasser was entitled to benefits. Rebanee appeals.

II. Jurisdiction

The insurance policy at issue is covered by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. Dr. Lasser sued to recover benefits under the Policy, and ERISA preempts state-law claims in this context. Id. § 1132(a). Thus, the District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We exercise appebate jurisdiction under 28 U.S.C. § 1291.

III. Standard of Review

The standard-of-review inquiry is more involved in this case than in most. The Supreme Court has mandated that courts review under the arbitrary and capricious standard claim denials in ERISA cases if “the benefit plan gives the administrator or fiduciary discretionary authority to determine ehgibihty for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). “Under the arbitrary and capricious standard, an administrator’s decision wib only be overturned if it is without reason, unsupported by substantial evidence or erroneous as a matter of law [and] the court is not free to substitute its own judgment for that of the defendants in determining ehgi-bihty for plan benefits.” Pinto v. Reliance Standard Life Ins. Co., 214 F.3d 377, 387 (3d Cir.2000) (internal quotation marks omitted). Here both parties agree that the Policy grants Reliance such authority.

However, if the same entity that determines whether a claimant is disabled must also pay for disability benefits, that entity has a financial incentive to find him or her not disabled. Thus, we have noted that, when the insurer of an ERISA plan also acts as a claims administrator, there is a structural or inherent conflict of interest that mandates a “heightened” arbitrary and capricious standard of review. Id. at 378. In Pinto we employed a “sliding scale” approach in which the level of scrutiny applied to the fiduciary’s decision is “a range, not a point.” Id. at 392 (quoting Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638 (6th Cir.1992)). It is “more penetrating the greater is the suspicion of partiality, less penetrating the smaller that suspicion is.” Id. at 392-93.

The District Court held a hearing on the extent of Reliance’s conflict of interest to determine the standard of review. Because the Court found no evidence of conflict other than the inherent structural conflict, it held that the correct standard of review was “at the mild end of the heightened arbitrary and capricious scale,” and thus afforded a “moderate degree of deference” to Reliance’s determinations. Neither party disputes this conclusion on appeal. However, Reliance argues that the District Court misapplied the standard by not deferring to Reliance’s allegedly reasonable conclusions.³

IV. Discussion

A. Dr. Lasser’s Regular Occupation

Under the explicit terms of Dr. Lasser’s Policy, he is disabled, inter alia, if as a result of injury, illness or disease he is capable only “of performing the material duties of his/her regular occupation on a part-time basis or some of the material duties on a full-time basis.” To determine whether Reliance correctly decided that Dr. Lasser did not qualify for disability benefits, we first determine what is his “regular occupation,” as the Policy leaves this term undefined. Reliance argues that “regular occupation” is broad, indeed generic. In initially denying Dr. Lasser benefits in December 1997, Reliance said that “regular occupation is not your job with a specific employer, it is not your job in a particular work environment, nor is it your speciality in a particular occupational field. In evaluating your eligibility for benefits, we must evaluate your inability to perform your own or regular occupation as it is performed in a typical work setting for any employer in the general economy.”

We recognize that, if the meaning of “regular occupation” is ambiguous, Reliance’s definition is entitled to deference under the applicable arbitrary and capricious standard of review. Skretvedt v. E.I. DuPont de Nemours & Co., 268 F.3d 167, 177 (3d Cir.2001) (insurer’s interpretation of an ambiguous insurance provision is entitled to deference unless it is contrary to the plan’s plain language). However, we believe that “regular occupation” is not ambiguous. The Policy states that it protects the insured from inability to “perform the material duties of his/her regular occupation.” Both the purpose of disability insurance and the modifier “his/her” before “regular occupation” make clear that “regular occupation” is the usual work that the insured is actually performing immediately before the onset of disability. Applying the text as written, Dr. Lasser’s regular occupation was as an orthopedic surgeon responsible for emergency surgery and on-call duties in a relatively small practice group and within a reasonable travel distance from his home in New Jersey.

Even assuming “regular occupation” is susceptible to multiple interpretations and therefore ambiguous, Reliance’s definition of the term nonetheless must be reasonable before deference is conferred. See Skretvedt, 268 F.3d at 177 (noting that courts defer to a claims administrator’s interpretation if it is not arbitrary or capricious). Yet Reliance’s definition is different from that in the caselaw pertaining both to it and disability policies containing the “regular occupation” modifier. See O’Bryhim v. Reliance Standard Life Ins. Co., 188 F.3d 502 (Table), 1999 WL 617891 (4th Cir.1999) (unpublished per curiam) (on arbitrary and capricious review, holding that claimant could not perform material duties of his regular occupation and defining “regular occupation” with reference to specific duties performed for his employer).

Even were a court not to limit itself exclusively to the claimant’s extant duties, that person’s “regular occupation” nonetheless requires “some consideration of the nature of the institution [at which the claimant] was employed.” Kinstler v. First Reliance Standard Life Ins. Co., 181 F.3d 243, 253 (2d Cir.1999). Moreover, Kinstler adopted the reasoning of an earlier district court case, Dawes v. First Unum Life Insurance Co., 851 F.Supp. 118, 122 (S.D.N.Y.1994), which defined “regular occupation” as “a position of the same general character as the insured’s previous job, requiring similar skills and training, and involving comparable duties.” Id. at 122. Notably, Dawes was decided before Dr. Lasser applied for disability benefits.

' The plain meaning of “regular occupation” is one of which both parties were aware when the Policy began on June 1, 1993. There is no reason to believe that Dr. Lasser was aware of Reliance’s different definition until it denied him benefits in December 1997. Because Reliance has shown no intent to “opt out” of this plainly understood term (indeed, it had the opportunity to do so each June when the Policy came up for renewal), it is unreasonable for it to argue it has done so post hoc. Even if we fall back to the interpretation of “regular occupation” imparted by Dawes and Kinstler, it too undermines Reliance’s generic understanding. Compare also Gaines v. The Amalgamated Ins. Fund, 753 F.2d 288, 290 n. 5. (3d Cir.1985) (deferring to a plan administrator’s construction of an ERISA-governed insurance policy when there was no caselaw interpreting the provision at issue); Epright v. Envtl. Res. Mgt, Inc. Health & Welfare Plan, 81 F.3d 335, 340 (3d Cir.1996) (holding a plan construction unreasonable when, among other deficiencies, the administrator pointed to no statutory provision to interpret the term and when its definition seemed self-serving).

In this context, it is unreasonable for Reliance to define “regular occupation” differently from its plain meaning or even the somewhat more relaxed understanding of Dawes and Kinstler without explicitly in-eluding that different definition in the Policy.⁴

B. Material Duties of Dr. Lasser’s Regular Occupation

Having determined that Dr. Las-ser’s regular occupation under the Policy was that of an orthopedic surgeon in a four-person practice group in New Jersey, and that it was unreasonable for Reliance post hoc to argue that the Policy’s plain language was otherwise, we turn to what Dr. Lasser did in the course of his regular occupation. He saw patients during office hours, performed scheduled surgeries, took night call, and performed emergency surgeries. When he no longer handled night call and emergency surgeries, were they material? The District Court answered yes. 146 F.Supp.2d at 641.

The Court’s conclusion is supported by comparing Dr. Lasser’s pre-disability earnings with his post-disability earnings from a reduced schedule. The Townsq-uare shareholders’ agreement requires reduction by one-third of a doctor’s salary when he or she no longer takes night call. Moreover, Dr. Lasser’s salary was, on average, approximately $26,000 per month when he was performing all duties, but fell to between $4,000 and $6,000 per month immediately before Reliance terminated benefits. During this latter period, however, Dr. Lasser was working less than forty hours per week, as he reduced his patient load by one-third and no longer was operating in the afternoon' after seeing patients in the morning. Even assuming he was working twenty hours per week instead of forty (an assumption supported by record evidence), and assuming that he would have made $8,000 to $12,000 per month had he worked forty hours per week (i.e double his twenty-hour-per-week earnings), it stands out that, by not performing on-call or emergency surgery duties, Dr. Lasser’s earnings have declined by over 50%. This substantial earnings decline lays out as little else can the materiality of those activities to his regular occupation.

Looking at the occupation of an orthopedic surgeon generieally without reference to Dr. Lasser’s particular duties, Reliance commissioned a labor market survey to determine whether performing emergency surgery and being on-call are material duties for an orthopedic surgeon.⁵ The survey asked:

In general, in your experience is it reasonable that an Orthopedic Surgeon can practice in this field if one:

[1.] Cannot perform “on-call” duties, do night calls, or carry a pager[;]

[2.] Cannot perform emergency surgery (even if one can do non-emergency, elective surgery) [;]

[3.] If you have responded YES to either, can you estimate in your experience the appx. prevalence of such jobs for an orthopedic surgeon in the general economy where one would not need to perform “on-call” or perform emergency surgery duties?

Reliance’s vendor sent 100 surveys, to which it received fourteen responses, only nine of which were returned in time to be considered. Five of those nine respondents opined that an orthopedic surgeon could “practice in this field” without performing on-call or emergency surgery duties. On the basis of the survey, and on the absence of any affirmative showing from Dr. Las-ser that performing emergency surgery and being on-call are material duties of an orthopedic surgeon generally, Reliance concluded that these duties are immaterial, thereby precluding Dr. Lasser from disability benefits within his Policy’s terms.

While Reliance selected survey responses to argue that on-call and emergency surgery duties were not material for Dr. Lasser, we (like the District Court) conclude that Reliance’s survey actually favors Dr. Lasser’s argument that these duties are material even on a generic basis.⁶ When all fourteen responses are considered and when the respondents’ comments are viewed along with the answers to the yes/no questions, the survey indicates that performing emergency surgery and being on-call are material duties of an orthopedic surgeon. Eight out of fourteen responses suggest that practice without these duties would be impossible or would result in an occupation fundamentally different from orthopedic surgery. One respondent wrote that the practice Reliance proposed would be very unusual and would essentially be a non-operative practice. Another stated that “[t]he only jobs that I know of that would fulfill your restrictions would be someone who restricted themselves [sic] to writing reports. Work-comp, or med-legal.” A third respondent noted that “[i]n your example, you are describing a physician who is not an orthopaedic surgeon, but might be considered an orthopaedist. An orthopaedic surgeon should be able to fulfill all duties.” Five other respondents flat-out said that what Reliance proposed was impossible.

In this context, both Dr. Lasser’s particular case and the survey for orthopedic surgeons in general lead to the conclusion that on-call and emergency surgery duties were material to his regular occupation.

C. Ability of Dr. Lasser to Perform the Material Duties of His Regular Occupation

1. Merits

We next determine whether Dr. Las-ser’s medical condition precludes him from safely performing material duties of his regular occupation. He argues that he cannot safely perform emergency surgery or perform on-call duties. To fulfill our appellate review function under the arbitrary and capricious standard, we examine the entire record to determine whether Reliance’s determination is supported by substantial evidence. Pinto, 214 F.3d at 387.

Reliance’s primary motivation for discontinuing Dr. Lasser’s benefits in December 1997 appears have been a report issued by Dr. Burke. He examined Dr. Lasser, subjected him to a treadmill test in November 1997, and concluded that Dr. Lasser “does not demonstrate any cardiovascular disability.”⁷ During an earlier treadmill test performed by Dr. Steven Roth in April 1997, Dr. Lasser “achieved greater than 90% of age-predicted maximum [heart rate]” and experienced only “mild fatigue [after] 14 minutes.” A nuclear cardiologist, Dr. Christos Christou, noted that planar imaging of Dr. Lasser’s heart conducted during the cardiovascular testing revealed only a “very small and probably clinically insignificant” heart defect.

Furthermore, Reliance notes that Dr. Lasser’s physician, Dr. Aldrich, considered Lasser to be in New York Heart Association Functional Class II (“Patients with cardiac disease with slight limitation of physical activity. They are comfortable with mild exertion but experience symptoms with the more strenuous grades of ordinary activity.”) and Therapeutic Class C (“Patients with cardiac disease whose ordinary physical activity should be moderately restricted and whose more strenuous efforts should be discontinued.”) — classifications that do not suggest significant limitations-on Dr. Lasser’s ability to work as an orthopedic surgeon.⁸

Dr. Lasser, however, contends that Reliance’s conclusion is unsupported by substantial evidence. He notes that, after appealing the discontinuation of his benefits, Reliance engaged two other physicians to evaluate him, both of whom issued reports supporting his position. The first, Dr. Raska, concluded that Dr. Lasser “should avoid stressful situations — i.e., those that require night call [and] medical emergencies,” and that “[a] reduced stress work environment and schedule is absolutely necessary to maintain this patient’s health.” Dr. Raska reasoned that “[s]tress regardless of exercise tolerance is a recognized independent risk factor for recurrent coronary artery disease ... [and that] there are multiple studies ... which demonstrate that stress causes flux in the level of catecholamines in the circulation which have been shown to be a precipitant of acute myocardial infarction and sudden death.” In Dr. Raska’s opinion, Lasser’s unsuccessful vein graft made stress reduction especially important, as increased stress could bring about even earlier failure of the graft. In this context, he opined that Dr. Lasser’s disability benefits should not have been revoked because he “cannot safely perform the material duties of an orthopedic surgeon.”⁹

After receiving this report, however, Reliance realized that Dr. Raska had a conflict of interest: he practiced in the same physician group as a doctor from whom Dr. Lasser previously sought an evaluation, Dr. Lubow (whose evaluation is discussed below). In response, Reliance engaged Dr. Field as another evaluating physician. While Dr. Field noted that “[t]here is little definitive evidence that emotional or job stress is causally related to the development or acceleration of coronary artery disease,” he did acknowledge that “both physical and emotional stress are identified triggers of acute myocardial infarction [heart attack].” He concluded that Dr. Lasser could work a forty-hour week, but “is not capable of resuming all of the customary duties and responsibilities of an orthopedic surgeon.” In particular, Dr. Field opined that Lasser should restrict his on-call or emergency surgery duties, given their stressful nature.

Dr. Lasser also relies on the evaluation of his treating cardiologist, Dr. Aldrich, as well those of Drs. Barry Lowell and Lawrence Lubow, who all opined that he is disabled. First, Lasser argues that the evaluation issued by Dr. Aldrich suggests that he is incapable of working in his regular occupation. When Rebanee asked Dr. Aldrich to complete a form detailing Dr. Lasser’s “current restrictions and hmita-tions,” he responded that Lasser should “hmit exposure to physical and emotional stress.” He noted also that “[s]tress is a well-documented risk factor not only for the development of coronary artery disease itself, but within that context, to the precipitation of a myocardial infarction.” As a result, in a letter to Rebanee dated June 3, 1998, Dr. Aldrich expressed to Rebanee that he believed Dr. Lasser is disabled and incapable of “resuming ab of the customary duties and responsibilities of an orthopedic surgeon on a full-time basis[,] or at least that he could not do so without exposing himself to a high degree of risk.” Dr. Aldrich’s reasoning underlying this conclusion was that, even though “by all objective criteria Dr. Lasser is doing very well at this point in time,” work-related stress might induce a deterioration in Dr. Lasser’s condition. Moreover, according to Dr. Aldrich’s reasoning, a favorable classification under the New York Heart Association guidelines is of bmited use in Dr. Lasser’s situation, as that classification system addresses a cardiac patient’s ability to perform certain physical tasks without regard to stress.

Dr. Lowell, who performed a cardiac catheterization on Dr. Lasser, also opined that Lasser was disabled. He agreed with Dr. Burke that Lasser’s “functional stress test at the present time is excellent,” but cautioned that “the stress of his profession will contribute to poorer control of blood pressure and lipid therapies” and that “a less stressful environment would contribute to his graft longevity.” Dr. Loweb concluded that “the severity of Dr. Las-ser’s heart condition, while not readily measured by traditional testing methods, renders him just as disabled as the patient whose disability would not be questioned because he presents with more overt symptoms.”¹⁰

Finally, Dr. Lubow, a physician who examined Dr. Lasser at the request of Las-ser’s counsel, reached a conclusion similar to that of Drs. Aldrich, Raska, and Lowell. He opined that, “[b]ased on the recurrence of significant arteriosclerotic heart disease manifest[ed] by an acute infarction plus the need for urgent angioplasty and stent-ing after a ten year hiatus when he had no symptoms, the decision to grant this patient permangnt partial disability was certainly correct, particularly in view of his anatomy.” ¹¹

Thus, all evaluating physicians — with the exception of Dr. Burke, whose report the others discredited — agreed that Dr. Lasser’s heart condition precludes him from safely performing on-call duties and emergency surgery. Reliance’s conclusion to the contrary thus is arbitrary and capricious. To the extent that Reliance’s determination of nondisability was that “it was unreasonable ... to expect Reliance ... to simply accept the opinion [that stress would exacerbate Dr. Lasser’s condition] without any range of the probability or actual proof that Dr. Lasser was at increased harm,” we believe its determination was faulty.

2. Clarification Regarding Burden of Proof

We conclude with a clarification regarding the burden of proof in disability cases. While the burden of proving disability ultimately lies with Dr. Lasser, to require him to provide statistics detailing the harm that working in his regular occupation might precipitate — as the dissent would require — raises the bar too high.¹² Most disability claimants will not have the means at their disposal (financial or otherwise) to obtain this kind of evidence. Therefore, once a claimant makes a prima facie showing of disability through physicians’ reports (as Dr. Lasser has done here through physicians’ reports stating that stress will exacerbate his heart condition) and if the insurer wishes to call into question the scientific basis of those reports (as Reliance has attempted to do here), then the burden will lie with the insurer to support the basis of its objection. It has not met that burden here.

D. Relevance of Alleged Resumption of Dr. Lasser’s On-Call and Emergency Surgery Duties

Reliance argues that, even if emergency surgery and on-call duties are material, Dr. Lasser’s resumption of these duties settles whether he is disabled from performing them. We disagree. First, because Dr. Lasser disputes that he has resumed performing these duties with the same frequency as before 1996, this issue involves a factual question that we do not resolve on appeal. Moreover, even assuming the facts as Reliance has alleged them, Dr. Lasser’s physicians — as well as Dr. Field, on whose opinion Rebanee has placed much weight — have advised that he should not perform these duties. Thus, there is substantial medical evidence that, if Dr. Lasser is performing on-call and emergency surgery duties, he is doing so to his detriment. Indeed, Dr. Lasser has argued that, to the extent that he has resumed these activities, he did so out of economic necessity — because Reliance discontinued his benefits. A claimant’s return to work is not dispositive of his or her disability when economic necessity compels him or her to return to work. Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir.2003) (“A desperate person might force himself to work despite an illness that everyone agreed was totally disabling.”); Levinson v. Reliance Standard Life Ins. Co., 246 F.3d 1321, 1326 n. 6 (11th Cir.2001) (a claimant’s status as a full-time employee should not constitute reliable evidence that he is able to perform the material duties of his occupation on a full-time basis); Stark v. Weinberger, 497 F.2d 1092 (7th Cir.1974) (even if a claimant returns to work, her doing so does not mean she is not disabled). This principle is especially persuasive here, where Dr. Lasser’s disability was not observable and did not make it physically impossible for him to perform his job for a limited period.

******

We hold that Dr. Lasser’s “regular occupation” was that in which he was actually engaged immediately before becoming disabled: an orthopedic surgeon in a four-person practice group in New Jersey. We also hold that on-call and emergency surgery duties are material to Dr. Lasser’s practice and that he is disabled from performing those duties. We agree with the District Court that Reliance's conclusion to the contrary was unsupported by substantial evidence and therefore was arbitrary and capricious. We accordingly affirm the District Court’s judgment in favor of Dr. Lasser.

1 . Rather than performing an artery graft, Las-ser’s surgeon conducted a vein graft procedure. Whereas artery grafts have a relatively high success rate, vein grafts have a significant failure rate •— according to Lasser’s physicians, between 50% and 60% after ten to fifteen years. Moreover, Lasser’s vein graft, rather than being connected to another artery (as it should have been), was sewn to two diagonal branches, only one of which was supplying blood to the anterior descending artery.

2 . The Court's stated basis for denying summary judgment was that "a court could find for either party when considering the administrator's resolution of these factual questions under the heightened standard of arbitrary and capricious review,” and that "the parties have advanced to the Court some factual support for each of their positions on the underlying merits of the claim as well as on the extent to which the administrator's decision was tainted by his self interest.” Id. at 626-27. Our dissenting colleague suggests that the District Court erred by considering extra-record evidence in resolving the merits. We disagree. The District Court recognized that its review was limited to the record before the claims administrator. Id. at 630.

3 . The dissent criticizes the District Court for making de novo findings of fact on the basis of the Ninth Circuit's decision in Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.1999), and notes that our Court has never adopted the Kearney approach. We agree with the dissent that Kearney is not the law in our Circuit and that de novo factfinding is improper in reviewing a claims administrator's decision under the arbitrary and capricious standard of review. But we do not believe that the District Court’s reference to, and implicit endorsement of, Kearney constituted reversible error, for its reference to facts was explicitly “limited to that evidence before the claims administrator.” 146 F.Supp.2d at 621.

4 . As noted below, the generic ex post interpretation of Reliance is even at odds with the majority of survey responses solicited by Reliance.

5 . Reliance also consulted the Dictionary of Occupational Titles ("DOT”) to aid its analysis. It points out that the DOT contains no separate listing for an orthopedic surgeon, which appears as an undefined related title under the "surgeon” heading. Therefore, applying the definition of surgeon, which does not refer to on-call and emergency duties, Reliance argues that these duties are immaterial. We agree with the District Court that the DOT’s silence about this critical issue makes the DOT unhelpful and thus, to the extent that Reliance’s conclusion is based on the DOT’s definition of surgeon, that conclusion is unreasonable.

Ironically, in arguing that Dr. Lasser’s duties should be evaluated with reference to the surgeon title in the DOT, Reliance acknowledged that surgery - rather than orthopedics - is the broader "occupational field" in which Dr. Lasser conducts his "regular occupation.” However, in relying on the survey to find Dr. Lasser not disabled, Reliance must have concluded that his "occupational field” is orthopedics rather than orthopedic surgery - i.e., that his “regular occupation” is one in which it is reasonable to conduct an office practice only or write reports, which some of the survey respondents suggested as available options. Reliance’s inconsistency in position renders its ultimate disability decision even more suspect.

6 . And given that doctors will inevitably have less scheduling flexibility when they work in smaller rather than larger practice groups, it seems only reasonable to conclude that the survey would have been even more favorable to Lasser had it taken into account the relevant context of his practice at Townsquare.

7 . Dr. Burke described Lasser’s prognosis as "excellent” with a "plaque stabilizing regimen” and "ace inhibitors to prevent the slight hypertensive response associated with exercise."

8 . Reliance also points out that Dr. Burke considered Lasser to be in Functional Class I ("Patients with cardiac disease but with no limitation of physical activity. Ordinary activity causes no undue dyspnea, anginal pain, fatigue or palpitation.”) and Therapeutic Class A ("Patients with cardiac disease whose physical activity need not be restricted.”). Dr. Raska said that Lasser was in Functional Class I and Therapeutic Class C.

9 .Moreover, Dr. Raska was sharply critical of Dr. Burke's evaluation, the basis of Reliance’s initial decision to terminate benefits. While according to Dr. Burke Lasser underwent a treadmill stress test in which he exercised to Stage IV of the Bruce Protocol (the standard by which stress tests are typically conducted), Dr. Raska pointed out that Lasser was only on . the treadmill .for three minutes and thirty-six seconds, an insufficient duration for a patient to reach Stage IV. He also noted that Dr. Burke’s examination of Lasser’s records was “sloppy” because it described a heart cathet-erization occurring in October 1996, when in fact it was performed in July 1996. To Dr. Raska this error suggested that Dr. Burke was insufficiently familiar with Lasser's case to arrive at a reasoned evaluation of his condition.

10 . He too criticized Dr. Burke’s report for its failure to mention the "significant anatomic problems with Dr. Lasser’s coronary anatomy.”

11 . Like Drs. Aldrich, Raska, and Lowell, he also criticized the thoroughness of Dr. Burke’s review, as well as the improper manner in which he conducted Lasser’s stress test.

12 . The dissent states that the risk that stress will cause future injury is insufficient to constitute a present disability. However, whether risk of future effects creates a present disability depends on the probability of the future risk’s occurrence. While Lasser's doctors have not precisely quantified the risk in his case, their reports suggest that the risk is high. While of course stress does not necessarily incapacitate an individual (note, for example, Vice President Cheney), in Lasser’s case his doctors have opined that stress is incapacitating.