                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2003

Lasser v. Reliance Standard
Precedential or Non-Precedential: Precedential

Docket No. 02-4123




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                                  PRECEDENTIAL

                                      Filed September 18, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 02-4123


                     STEPHEN P. LASSER
                                 v.
                  RELIANCE STANDARD LIFE
                   INSURANCE COMPANY,
                                           Appellant

        Appeal from the United States District Court
                for the District of New Jersey
            (D.C. Civil Action No. 99-cv-04131)
         District Judge: Honorable Alfred M. Wolin

                     Argued April 24, 2003
        Before: SCIRICA,* Chief Judge, AMBRO and
                  GARTH, Circuit Judges

              (Opinion filed September 18, 2003)
                         Joshua Bachrach, Esquire (Argued)
                         Rawle & Henderson
                         One South Penn Square
                         The Widener Building
                         Philadelphia, PA 19107
                           Attorney for Appellant




* The Honorable Anthony J. Scirica became Chief Judge on May 4, 2003.
                                     2


                           Lewis Stein, Esquire (Argued)
                           Nusbaum, Stein, Goldstein,
                            Bronstein & Kron, P.A.
                           20 Commerce Boulevard
                           Succasunna, NJ 07876
                                Attorney for Appellee


                    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

1. Rather than performing an artery graft, Lasser’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.
                                   3


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 Aldrich, Lasser’s treating physician, prescribed a
treatment regimen of change of diet, exercise, and drug
therapy. Dr. Aldrich also advised Lasser to reduce his
stress level, including work-related stress. Accordingly, in
September 1996 Dr. Lasser 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. Lasser — 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

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
                                    4


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 Reliance. On the basis of its
review, it held Reliance’s determination of nondisability
arbitrary and capricious and that Dr. Lasser was entitled to
benefits. Reliance 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
appellate 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 eligibility for benefits or to construe the terms of
the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S.
101, 115 (1989). “Under the arbitrary and capricious
standard, an administrator’s decision will 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 eligibility for plan
benefits.” Pinto v. Reliance Standard Life Ins. Co., 214 F.3d

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.
                                    5


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 (5th 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

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.
                                6


                        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,
                               7


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
                                   8


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 including that different
definition in the Policy.4
B.   Material Duties of Dr. Lasser’s Regular Occupation
  Having determined that Dr. Lasser’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 Townsquare
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

4. As noted below, the generic ex post interpretation of Reliance is even
at odds with the majority of survey responses solicited by Reliance.
                                    9


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
generically 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)[;]

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.
                                   10


     [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. Lasser 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

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.
                                    11


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. Lasser’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

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.”
                                   12


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

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.
                                    13


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 Reliance asked Dr. Aldrich to
complete a form detailing Dr. Lasser’s “current restrictions
and limitations,” he responded that Lasser should “limit
exposure to physical and emotional stress.” He noted also
that “[s]tress is a well-documented risk factor not only for

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 catheterization 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.
                                  14


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 Reliance dated June 3,
1998, Dr. Aldrich expressed to Reliance that he believed Dr.
Lasser is disabled and incapable of “resuming all 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 limited 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.
Lowell concluded that “the severity of Dr. Lasser’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 Lasser’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 stenting
after a ten year hiatus when he had no symptoms, the

10. He too criticized Dr. Burke’s report for its failure to mention the
“significant anatomic problems with Dr. Lasser’s coronary anatomy.”
                                     15


decision to grant this patient permanent 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.

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.
                             16


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 Reliance 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 Ins. Co., 245 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
                            17


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.
                                 18


GARTH, Circuit Judge, dissenting.
  I am obliged to dissent from the majority’s judgment in
favor of Dr. Lasser.
  (1) The District Court failed to adhere to our established
standards of review and our precedents. See Lasser v.
Reliance Standard Life Ins. Co., 130 F. Supp. 2d 616, 630
(D.N.J. 2001) (“Lasser I”) (“th[is] Court anticipates adopting
the procedure set forth in Kearney [v. Standard Ins. Co.,
175 F.3d 1084 (9th Circuit 1999) (en banc)] and making
plenary findings of fact pursuant to Federal Rule of Civil
Procedure 52, even though no new evidence may be
received on that branch of the case.”)1 By so doing, the
District Court erred by giving only lip service, but no
required true deference, to the Administrator Walsh’s
determinations even after it had held that the Administrator
was neither conflicted nor biased. See Pinto v. Reliance
Standard Life Ins. Co., 214 F.3d 377 (3d Cir. 2000).
  (2) This is a summary judgment case. The District
Court, when called upon to decide summary judgment,
cannot hold a trial on the merits a la Kearney. See infra
note 3. In this case, the District Court did just that.
  (3) The District Court, at its truncated April 10, 2001
hearing,   while    purporting   to   resolve   only  the
Administrator’s status as to whether he was conflicted or
biased (it held that he was neither), cannot proceed to
ignore our prescribed standard of review which requires
deference and then proceed to substitute its own judgment
on the merits.
  (4) The policy written by Reliance requires that for
disability benefits, Dr. Lasser had to be disabled from
performing the material duties of his regular occupation.
The burden of proving materiality rested on Dr. Lasser. No
evidence of materiality appears in the record.
  (5)   No deference was shown by the District Court to Mr.

1. The District Court filed two opinions in this case. On February 8,
2001, it filed Lasser I, 130 F. Supp. 2d 616, and on June 13, 2001, it
filed Lasser v. Reliance Standard Life Ins. Co., 146 F. Supp. 2d 619
(D.N.J. 2001) (“Lasser II”).
                                    19


Walsh’s, the Administrator’s, determinations that: (a)
materiality was not demonstrated; (b) Dr. Lasser returned
to, and was performing, his full-time occupation; (c)
“emergency” and “on-call” services were not established as
material; yet, these were the only services Dr. Lasser was
told not to perform; and (d) neither stress nor future
disabilities could establish Dr. Lasser’s present disability.
  (6) The actions taken by Reliance and the evidence
relied upon by Reliance, as well as the determinations
made by Walsh, the Administrator, cannot be determined to
be arbitrary nor capricious under our standards and
precedents.

                                    I.
  This appeal comes to us after both parties had moved for
summary judgment. It has remained a summary judgment
case in which the District Court could look only to the
developed administrative record.
  I begin by briefly outlining the pertinent procedural
history. In its February 8, 2001 opinion, the District Court
denied the parties’ cross-motions for summary judgment. It
then stated that it would hold a hearing to determine if
Walsh, the Administrator, was biased or suffered a conflict
because he was an employee of Reliance. Lasser I, 130 F.
Supp. 2d at 625-26, 630 (referring to Pinto’s sliding scale of
arbitrary and capricious review).2
  The District Court then conducted a bench trial on April
10, 2001 where it heard only Walsh’s testimony relevant to
the issue of how heightened our standard of review should
be on Pinto’s sliding scale. Dr. Lasser did not testify, nor
did any other witness. I reiterate—the only purpose of the
hearing was to address whether Walsh was conflicted or
biased because he was Reliance’s employee. Walsh had the
duty of determining a claimant’s eligibility for benefits as
well as of paying those benefits out of the funds from which

2. Pinto held that, “when an insurance company both funds and
administers benefits, it is generally acting under a conflict that warrants
a heightened form of the arbitrary and capricious standard of review.”
Pinto, 214 F.3d at 378.
                                  20


Reliance reaps its profits. If biased, then under Pinto the
deference to be accorded his determination would be less
deferential, and the court must “calibrat[e] the intensity of
[the] review to the intensity of the conflict.” Pinto, 214 F.3d
at 393. If not biased, then under Pinto, the standard of
deference to be employed would be “deferential, but not
absolutely deferential.” Id. But, in either event, deference
had to be accorded.
  Thereafter, the District Court determined that it would
give a “moderate degree of deference” to Walsh’s
determinations as it found no evidence of bias or conflict
exhibited by Walsh. Lasser II, 146 F. Supp. 2d at 623.
  At this stage, the District Court was required to end its
inquiries and hearing and review the existing administrative
record—and no more. But, the District Court did not do
that. It proceeded further, despite the summary judgment
context of the instant case, and it made its own findings of
fact on the merits. Id. at 620, 642.
  Under our precedents, district courts cannot conduct so-
called “merits-trials” when determining the appropriate
conflict-of-interest review standard.3 As I have stated, the
District Court should have limited its findings to a
determination of what the appropriate standard of review
would be, and then should have continued on to resolve the
summary judgment question pursuant to that standard.
   Accordingly,   I would have returned          this case to the
District Court    with the direction that       it expunge all its
merits findings   and discussion and then       proceed to perform
its prescribed    function of ruling, on        the administrative

3. The District Court relied on a Ninth Circuit divided en banc case
which, contrary to Third Circuit jurisprudence, required de novo, not
deferential, review. See Kearney, 175 F.3d 1084. In Kearney, a lawyer
with a heart condition who played several sets of tennis every weekend,
car-raced up to 120 miles per hour and had medical opinions that he
could return to work, contested the cessation of his disability policy
payments. Id. at 1086. The District Court accorded de novo review and
ruled in favor of the insurance company. Id. at 1086-87. A fractured en
banc court reversed, approving de novo review but finding a material
disputed fact. Id. at 1090, 1093.
                                    21


record only, whether Walsh’s denial of benefits was
arbitrary or capricious.

                                    II.
  Although the District Court purported to subscribe to the
correct standard of review, a fair reading of the District
Court’s opinions indicates that it did not; it merely gave lip-
service to the deference to be accorded to the
Administrator’s determinations.
  Pursuant to the plain language of Reliance’s policy,
whether Dr. Lasser is “totally disabled” hinges on whether
he can perform the “material” duties of his occupation. The
relevant part of the policy provides:
     “Totally Disabled” and “Total Disability” mean . . . that
     as a result of an Injury or Sickness, during the
     Elimination Period and thereafter an Insured cannot
     perform the material duties of his/her regular
     occupation . . . .
App. at 139 (emphasis added). Critical to this analysis, is
that the burden to prove materiality is on Dr. Lasser
because the burden of proving coverage is always on the
claimant. See Lasser II, 146 F. Supp. 2d at 639 (citing
Pinto, 214 F.3d at 394 n.8). Dr. Lasser, however, submitted
no evidence, no proofs, no affidavits, no witnesses, and no
depositions on the issue of materiality. Indeed, the record
as to this issue is barren.4

4. The majority opinion seeks to answer its own question, which it has
posed as, “When he [Dr. Lasser] no longer handled night call and
emergency surgeries, were they material? The District Court answered
yes.” Maj. op. at 8. But, as I have pointed out, it was not the function
of the District Court to make such a finding. Nor is it the function of this
Court to uphold such a finding when it appears in a summary judgment
context.
  Rather, the majority should have examined the record, as I have, for
evidence of materiality as to night calls and emergencies. Had the
majority done so, it would have learned, as I did, that no such evidence
exists—and it is that evidence that the Reliance policy requires.
  Moreover, the burden of proof as to materiality rests with Dr. Lasser
and the majority opinion’s purported clarification respecting the burden
of proof does not change that prescription. See maj. op. at 15.
                              22


   Despite the silence of the record regarding materiality,
the District Court nevertheless held that Dr. Lasser had
made out his burden of proof on materiality. To do so, the
District Court relied principally on the diminution of Dr.
Lasser’s income when he discontinued emergency and on-
call duties. Id. at 639-40. The majority, too, finds this
diminution in income to be controlling. Yet, it must be
remembered that during the period of time (from September
1996 to December 1997) that Dr. Lasser was “totally
disabled,” he was attending to all his office functions and
tasks and he was performing scheduled (elective) surgery.
At the same time, he was collecting total disability benefits
from Reliance.
  The District Court also relied on the various medical
reports from cardiologists, although they merely stated that
Dr. Lasser should not perform “emergency” and “on-call”
work—not that those functions were “material” to his
occupation of orthopedic surgeon. Id.
   Reliance, on the other hand, presented evidence on the
issue of materiality. Reliance looked to the duties of a
general surgeon as defined in the Dictionary of
Occupational Titles (“DOT”) from the United States
Department of Labor. “Emergency” and/or “on-call” work
are not included in material duties. Dr. Lasser has
presented no evidence to the contrary.
  Furthermore, the DOT is a recognized authority in the
vocational industry. See, e.g., Gallagher v. Reliance Life Ins.
Co., 305 F.3d 264, 272-73 (4th Cir. 2002) (DOT is an
objectively reasonable tool for determining the material
duties of an occupation; a “general job description of DOT,
to be applicable, must involve comparable duties but not
necessarily every duty.”) (emphasis added).
  Similarly, the District Court gave no deference
whatsoever to Reliance in its use of a labor market survey.
This study provided direct evidence that “on-call” and
“emergency” duties—the only restrictions which Dr.
Lasser’s physicians proscribed—were not material. Dr.
Lasser provided no vocational studies nor, as I stated
earlier, any other evidence which contradicted Reliance’s
evidence on materiality.
                              23


  Moreover, the use of such vocational studies in eligibility
for disability benefits is an accepted practice in this Circuit.
See, e.g., Russell v. Paul Revere Life Ins. Co., 288 F.3d 78,
79, 82 (3d Cir. 2002) (labor market study which identified
jobs within the claimant’s occupation that did not require
travel, contravened plaintiff ’s contention that he remained
disabled because he could not work extended hours and
travel, which his current position required).
   All of this evidence stands unrebutted by Dr. Lasser.
Again, the appropriate standard of review is whether or not
Reliance was arbitrary and capricious in determining that
Dr. Lasser failed to meet his burden of materiality, that is:
that Dr. Lasser could not perform the material duties of his
regular occupation. Nowhere in this record is there
evidence that “emergency” and “on-call” tasks—the only
work which Dr. Lasser was told he could not perform—are
material to Dr. Lasser’s every day occupation. Although I
am sympathetic to Dr. Lasser’s financial and medical
difficulties—as I am sure the members of the majority are
too—such sympathy cannot substitute as evidence that
“emergency” and “on-call” work are material to the
occupation of an orthopedic surgeon.
   Furthermore, I find it troubling that Dr. Lasser presented
no vocational study, nor any evidence from experts in the
field, or even evidence from the members of his own office
or himself, to support his contention that these tasks were
in fact material. In particular, there has been no evidence
as to whether his three partners could handle and would
respond to the practice’s on-call and emergency duties,
although such circumstances could lead to a diminution of
income for Dr. Lasser. There was also no evidence in the
record that Dr. Lasser could not perform scheduled elective
surgery, as well as all other office procedures and tasks.

                              III.
  The majority, I sense, has fallen into the same pattern of
analysis employed by the District Court. Instead of
addressing and assessing the basis, the rationale and the
evidence which led to the Administrator’s determination
denying benefits, and then giving appropriate deference to
                              24


that determination, the majority discusses the evidence as
if it was subjected to de novo review after trial. In doing so,
it draws its own conclusions and substitutes its own
judgment as to who and what is to be believed.
  Instead of looking to the evidence of materiality—(there is
none)—or the evidence of whether “emergency” and “on-
call”   procedures      are   material—(the    evidence    is
uncontradicted that they are not)—the majority opinion
reviews the District Court record as if it arose from a non-
jury fact-finding trial. That, I suggest, was the error the
District Court fell into and it is compounded by the
majority of this panel.
  I also find that the majority’s preoccupation with the
definition of “regular occupation” misses the mark. Here,
we are concerned only with the policy’s definition of “total
disability” which concentrates on material aspects of Dr.
Lasser’s practice. The majority relies on the Second
Circuit’s decision in Kinstler v. First Reliance Standard Life
Ins. Co., 181 F.3d 243 (2d Cir. 1999), even though that
case is distinguishable inasmuch as the standard of review
there, unlike here, was de novo. The majority further
strains to justify the term “regular occupation” by relying
on a Fourth Circuit unpublished opinion, O’Bryhim v.
Reliance Standard Life Ins. Co., 188 F.3d 502 (Table), 1999
WL 617891 (4th Cir. 1999) (unpublished per curiam). See
maj. op. at 7. A Fourth Circuit unpublished opinion under
no circumstances can be considered precedential by this
Court. In doing so, the majority opinion ignores the claim
evaluation framework established by the very language of
the Reliance policy that it quotes: First, the claimant’s
condition is evaluated. Next, the claimant’s regular
occupation is evaluated and the material duties thereof are
defined. Finally, the claimant’s condition is compared
against the material duties determined to be required in his
regular occupation. It appears that Dr. Lasser, the District
Court, and now this Court would end the inquiry after just
the first step.

                             IV.
 Another example of the District Court’s failure to defer to
Walsh’s determinations revolves around Dr. Lasser’s
                              25


continuing to work while receiving disability payments of
about $6,000 a month, as well as Dr. Lasser’s return to
work after his benefits were discontinued.
  Reliance argues that Dr. Lasser cannot be totally disabled
because in December 1997 he returned to “full-time”
unrestricted work, including “emergency” and “on-call”
duties, without consequence to his health. See App. at 263.
Reliance further contends that it was reasonable because
none of the doctors stated that he would be incapable of
performing a full-time schedule and Drs. Burke and Field
specifically evaluated Dr. Lasser as being capable of full-
time work.
   The District Court concluded, and the majority here
agrees, that because Dr. Lasser risked future heart attacks
due to the stress from on-call and emergency duties—which
on this record cannot be characterized as material—his
continuing to work after the termination of his insurance
benefits nevertheless is evidence of his “total disability.” In
particular, the District Court focused on the fact that he
risked his health, against the express recommendations of
his doctors, by returning to those duties out of economic
necessity. Lasser II, 146 F. Supp. 2d at 626 n.5, 627, 630.
But, without satisfying the policy’s condition of inability to
perform tasks material to his occupation, I cannot agree
that Dr. Lasser, who was working in his office and
performing elective surgery, was “totally disabled.”
  The Eighth Circuit has addressed this issue of relating
economic necessity to total disability in a context similar to
Dr. Lasser’s. In Galman v. Prudential Ins. Co. of America,
254 F.3d 768 (8th Cir. 2001), the Eighth Circuit held that
a claimant cannot assert total disability when he has
returned to work, regardless of whether he returned to
work out of “economic necessity” after an initial denial of
benefits while awaiting the results of his administrative
appeal. Galman, 254 F.3d at 771-72. Galman was a trial
attorney who suffered from coronary artery heart disease,
with a history of, inter alia, two prior heart attacks. He
based his disability claim, in part, on the risk of
aggravating his heart condition due to the stress of work.
After the claim was denied, Galman returned to work full
time asserting that the denial “forced him to return to work
                              26


for financial reasons.” Id. at 771. The court rejected his
claim for benefits. Id. at 772.
   The majority implies that Dr. Lasser was unable to work
a forty-hour week, and thus was disabled. But the majority
misapprehends our jurisprudence. An insurer is not
arbitrary and capricious merely because it relies on other
medical opinions that result in a denial of coverage; it is
only arbitrary if such decision was “clearly not supported
by the evidence in the record or the administrator has
failed to comply with the procedures required by the plan.”
Abnathya v. Hoffmann-La Roche, Inc., 2 F.3d 40, 41 (3d Cir.
1993); see also, e.g., Orvosh v. Program of Group Ins. for
Salaried Employees, 222 F.3d 123, 129 (3d Cir. 2000);
Hightshue v. AIG Life Ins. Co., 135 F.3d 1144, 1148-49 (7th
Cir. 1998) (a plan’s decision, if reasonable, must be
affirmed even if the claimant presents an opposite position).
Here, Reliance has fully complied with all established
procedures and the Administrator’s record is replete with
evidence supporting the Administrator’s decision.

                              V.
  Moreover, the District Court’s and the majority’s reliance
on the issue of “stress” does not do credit to their analyses.
  Once again, I consider the evidence from the
administrative record through the lens of deference. Under
this deferential standard, it is clear that the District Court,
and then the majority, erred.
  First, it is undisputed that none of the doctors who
supported the disability claim ever stated with any degree
of medical certainty the increased risk to Dr. Lasser of
returning to full-time employment. Reliance’s policy does
not insure against future disability—only present disability.
A doctor or other expert who determines that a patient is
disabled based on the possible future effects of stress
should have to quantity that risk so that the ERISA
decision maker can determine if it constitutes a present
disability. Thus, an opinion that Dr. Lasser’s venous graft
may not survive another five years does not satisfy the
condition of Reliance’s disability policy—a policy which
requires that Dr. Lasser be unable to perform the material
                             27


duties of his occupation at this time. To illustrate: I, as a
judge, may go blind in five years—but if I am not blind
now, that possibility cannot be deemed to render me
presently disabled.
  I think we all recognize that stress, while it may affect
cardiac patients, does not necessarily incapacitate them, or
prevent them from successfully returning to, and
performing, stressful jobs, i.e., Vice President Dick Cheney.
See, e.g., Coker v. Metropolitan Life Ins. Co., 281 F.3d 793,
796, 798-99 (8th Cir. 2002) (plan not arbitrary and
capricious in denying benefits, even where the claimant’s
doctor declared him disabled based on the exacerbating
factor of stress); Gooden v. Provident Life & Accident Ins.
Co., 250 F.3d 329, 335 n.8 (5th Cir. 2001) (dismissing
claimant’s complaint that his insurance company failed to
account for his doctor’s concern of the stress associated
with his job).
   Based on the administrative record, it was not arbitrary
and capricious for Reliance to determine that Dr. Lasser
was not “disabled” based on any risk of relapse from stress.
Indeed, stress tests subsequent to his heart attack in July
1996 did not reveal any chest pain or EKG abnormalities
during cardiac testing, only a “very small myocardial
infarction” which was “very small and probably clinically
insignificant.” App. at 208. Three cardiologists rated Dr.
Lasser at a Functional Class I level for physical capacity on
the New York Heart Association Functional Classification
System, which level designates “[p]atients with cardiac
disease but with no limitation of physical activity.” Lasser
II, 146 F. Supp. 2d at 626. Dr. Aldrich’s March 25, 1998
report states: “I do not disagree [with Dr. Burke] that by all
objective criteria Dr. Lasser is doing very well at this point
in time” and also reports that Dr. Lasser “does not
currently have any symptoms, his examination is negative
with respect to the cardiovascular system, and his stress
test from April of 1997, as well as the stress test performed
by Dr. Burke showed good exercise capacity . . . .” App. at
222. Dr. Raska’s August 5, 1998 report confirmed Dr.
Lasser’s cardiovascular fitness as “excellent,” his cardiac
condition as stable and further stated that patients with a
New York Heart Association Functional Class I level
                             28


typically have “an overall low risk of cardiovascular
morbidity or mortality.” App. at 229.

                             VI.
  I believe that the District Court should have determined,
on the established administrative record, whether the
Administrator abused his discretion and was arbitrary and
capricious in determining at least the following matters:
 (a) Did Dr. Lasser meet his burden of establishing the
material tasks and aspects of his practice?
  (b) Are emergency surgeries and on-call duties material
parts of Dr. Lasser’s functions as an orthopedic surgeon?
   (c) Could and did Dr. Lasser perform elective
(scheduled, not emergency) surgery as material procedures
of his occupation?
   (d) Could Reliance’s policy as drawn take into account
future disabilities that Dr. Lasser may suffer or was it
limited to only the current or present disability which Dr.
Lasser may or may not have?
  It is these matters with which the District Court had to
concern itself in determining whether the Administrator’s
denial of benefits was arbitrary and capricious. By failing to
do so, I believe the District Court erred.
  One last word on this subject. I am troubled by the
District Court’s reliance on the Ninth Circuit’s de novo
standard in Kearney. See supra note 3. While Kearney may
have its advocates, and I cannot help but note that the
Ninth Circuit en banc court was severely divided, we have
yet to depart from established review standards in ERISA
and summary judgment cases. To my mind, the District
Court’s abrogation of both these standards in favor of a
Kearney review, rings a warning bell that cannot be
ignored.
  Had the District Court conducted its hearing as I
suggested it should, that is, confining itself only to the
resolution of whether Walsh was conflicted or biased, and
had the District Court then resorted to the traditional
summary judgment resolution based only on the record
                               29


below, I would not have raised this issue. But this is not
the way this case played out, as I have noted. If we permit
the review that took place in this case, I fear it will signal
to district courts in the future that they are free, in similar
cases, to hold merits hearings and thus to deviate from the
summary judgment and Pinto standards.
   Thus, in sum, I would reverse the District Court’s
judgment in favor of Dr. Lasser and remand for the District
Court to properly consider this case under the summary
judgment standard, giving Pinto deference to Walsh’s
determinations. As the Supreme Court just recently noted,
a court must actually apply the correct standard; mere lip-
service and mere citation to a standard of review will not
suffice. See Price v. Vincent, 123 S. Ct. 1848, 1852 (2003)
(holding that the Sixth Circuit recited the correct standard
of review under 28 U.S.C. § 2254(d)(1) but then did not
apply it when it reviewed the double jeopardy question at
issue.)
  Thus, I respectfully dissent.

A True Copy:
        Teste:

                    Clerk of the United States Court of Appeals
                                for the Third Circuit
