Opinion
CIVIL ACTION NO. 06-10251-GAO.
March 21, 2008
OPINION AND ORDER
I. Background
The plaintiff, Howard Price, M.D., was employed as a urologist and surgeon at Milford-Whitinsville Regional Hospital. Defendant Medical Life Insurance Company is the insurer for the long-term disability ("LTD") policy (the "Policy") purchased by the Hospital, and defendant Disability RMS ("DRMS") is the claims administrator. Dr. Price filed a claim for LTD benefits on February 1, 2003, citing "substance abuse" as a disability that caused him to be unable to work since December 6, 2002. (Partial R. for Jud. Rev. 494 [hereinafter Record].) DRMS denied Dr. Prices claim, and after further review rejected his two subsequent appeals of that denial. Dr. Price then brought this action alleging the unlawful denial of benefits pursuant to the Employment Retirement Income Security Act of 1974 ("ERISA") section 502. 29 U.S.C. § 1332(a)(1)(B). Dr. Price argues that although he did not use opioids during the two-year period for which the Policy would cover, his depression, anxiety, cravings and the risk of relapse had he returned to work rendered him "unable to perform all of the material and substantial duties" of his occupation, such that he would be entitled to LTD benefits under the Policy. (See id. at 178.)
II. Standard of Review
The plaintiff argues, and the defendants do not dispute, that this Court's review of the denial of Dr. Price's LTD claim is de novo. See Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989); Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 584 (1st Cir. 1993). This Court therefore must engage in an "independent weighing of the facts and opinions in [the] record to determine whether the claimant has met his burden of showing he is disabled within the meaning of the policy." Orndorf v. Paul Revere Life Ins. Co., 404 F.3d 510, 518 (1st Cir. 2005) (quotations omitted). A motion for a judgment on the record in an ERISA case, although similar to an ordinary summary judgment motion, differs in that "the non-moving party is not entitled to the usual inferences in its favor." Id. at 517.
III. "Total Disability" Under the Policy
The Policy provides that:
Total Disability or Totally Disabled means during the elimination period and the next 24 months of disability you are:
1. unable to perform all of the material and substantial duties of your occupation on a full-time basis because of a disability;
a. caused by injury or sickness;
b. that started while you are insured under this plan, and
2. after 24 months of benefits have been paid, you are unable to perform with reasonable continuity all of the material and substantial duties of your own or any other occupation for which you are or become reasonably fitted by training, education, experience, age and physical and mental capacity.
(Record 178.) There is no dispute that Dr. Price's substance abuse began while he was insured, nor that substance abuse and related depression and anxiety may be considered a "sickness" under the Policy. Accordingly, the issue, on which Dr. Price bears the burden of proof, is whether because of "sickness" he was unable to perform "all the material and substantial duties" of a urologist and surgeon.
IV. The Record
This Court's review is limited to administrative record. See Orndorf, 404 F.3d at 519. The following is a summary of relevant parts of that record. Since the review is de novo, and the focus is on the merits of DRMS' denial, rather than any concern with the claims process (which might be the focus under the arbitrary and capricious standard), details in the record that relate only to process are omitted.
A. Pre-Arrest Employment
Dr. Price's substance abuse, as reflected in the record, began in 1999, when he first began taking, and became dependent on, Ultram and Percocet, two pain-killing drugs. (Record 117.) Dr. Price obtained these drugs either by taking samples from the Hospital or by asking his patients to return their unused medication to him. (Id.) Around this time he was diagnosed with incidental mild depression by Dr. Emmett Clemente, his primary medical doctor, and was prescribed Zoloft, an anti-depressant. (Id. at 117, 460.) Later, in his affidavit submitted in support of his application for benefits, Dr. Price detailed his feelings regarding his work, citing physical demands including long hours, the intensity and discomfort of performing surgery, and lack of sleep, as well as the mental demands of making diagnoses, possessing a large amount of knowledge, and dealing with another's health and life. (Id. at 116.) Dr. Price also described feeling stress caused by the high level of scrutiny given a doctor's actions, the risk of malpractice claims, the pressure to produce more while reducing costs, the excessive time spent satisfying governmental and insurance requirements, and the problems of dealing with malingering patients. (Id. at 116-17.) He described the impact that these various stressors had on him:
I suffered from poor self-confidence, especially in the operating room, which manifested as second-guessing myself, relying on my partner, and high stress levels. I think I was more sensitive than the average surgeon to the patient's needs. This awareness manifested as spending more time with each patient, providing alternatives, and essentially taking on some of their discomfort. Unfortunately, my sensitivity to patient's needs contributed significantly to my overall level of stress. I began to feel the balance was weighted towards the negative aspects of practicing medicine, so on some days I dreaded coming into work, and subsequently, I turned to substance abuse.
(Id. at 117.) Despite this, Dr. Price did not miss any work as a result of his substance abuse until November 4, 2002, when he sought medical attention. (Id. at 118.) Rather, as he himself points out, he relied on the drugs he was taking to help him to perform his daily work.
B. The Arrest
On October 24, 2002, Dr. Price was stopped and arrested by Massachusetts State Police after another motorist observed him apparently snorting a powder (which turned out to be crushed Percodet) while driving. Police found sample packages of medication as well as several prescription bottles containing various controlled substances. (Id. at 768.) Dr. Price was charged with possession of Class B, C, and E controlled substances in violation of Massachusetts General Laws, ch. 94C, § 34, as well as obtaining drugs by fraudulent means in violation of § 33(b). (Id.) Dr. Price's wife Valerie was "unaware of any symptoms of [her] husband's illness until October, 2002." (Id. at 124.) Although she noticed that he was "stressed about work . . . [she] was not aware of any real problems until October 2002." (Id.) C. Post-Arrest Employment and Treatment
On November 4, 2002, Dr. Price began seeing a substance abuse counselor, Barney Kennedy, who diagnosed him with opioid dependence and referred him to out-patient treatment at Ad-Care Hospital. (Id. at 117.) From November 18 to December 9, 2002, Dr. Price participated in a three-week outpatient treatment program which met three days per week for three hour sessions. (Id. at 237; Statement of Facts in Supp. of Pl. Dr. Howard Price's Mot. for J. on the R. ¶ 13.) Dr. Price ceased working on December 6, 2002, (Record at 118) although in the weeks prior he had missed work intermittently, taking seven days off using accrued vacation time. (Id. at 118, 125.)
On December 3, 2002, an administrator at the Hospital called Dr. Price to discuss reports from two patients that he had asked them to return unused medication to him, including narcotics. The administrator recommended that Dr. Price self-report his problem to the Board of Registration in Medicine (the "Board"), which he did. (Id. at 829-30.) On December 6, 2002, Dr. Price met with Physician Health Services ("PHS"), a division of the Massachusetts Medical Society that supervises physicians suffering from substance abuse, to discuss a contract to refrain from abusing substances. (Id. at 830.) On the same day, Dr. Price began his leave of absence from the Hospital. (Id. at 118.) Shortly thereafter, on December 20, 2002, he signed a treatment contract with PHS. (Id. at 460.)
On January 3, 2003, Dr. Price began treatment with a psychiatrist, Dr. Richard Tomb. (Id. at 390.) Dr. Tomb's notes from this first session state that Dr. Price was "unable to practice medicine because of the pending Board actions and pending criminal charges," and diagnosed him with Opioid Abuse, Dysthymic Disorder, Personality Disorder NOS with Obsessive Compulsive Disorder, and Narcissistic features. (Id.)
On January 8, 2003, Dr. Price saw Dr. Clemente for a comprehensive exam. (Id. at 470.) Dr. Clemente's notes from this visit state that Dr. Price was "currently on medical leave . . ." but "[f]rom a health perspective otherwise he is doing well . . ." and that "[f]rom a psychologic standpoint he seems to be doing well on his medical leave. He is on Zoloft 100mg daily and wonders about titrating down this dose. . . ." (Id.)
On January 21, 2003 Dr. Price met with the Board and submitted a "Voluntary Agreement Not to Practice Medicine" which was accepted by the Board the following day, and resulted in the suspension of his license to practice medicine. (Id. at 118, 763, 767.)
It is not clear from the record whether this agreement is the same as the treatment contract with PHS that Dr. Price signed on December 20, 2002.
D. Dr. Price's LTD Claim
On February 1, 2003, Dr. Price submitted his claim for LTD benefits under the Policy. (Id. at 494.) He stated in his Employee's Claim Statement that his illness was "substance abuse," and that he had been unable to work since December 6, 2002, the date on which he first noticed the symptoms of illness. (Id.)
1. Round One
In a form entitled "Attending Physician Statement" submitted in support of Dr. Price's claim and signed on March 20, 2003, Dr. Clemente stated that his diagnosis was "substance abuse" and also gave December 6, 2002 as the date on which Dr. Price had become disabled, as well as the date on which his symptoms first appeared. (Id. at 493.) In response to the question "Is condition due to injury or sickness arising out of patient's employment?" Dr. Clemente checked the box for "No." (Id.) Dr. Clemente listed "N/A" under "Subjective symptoms," "None" under "Objective findings," and "N/A" under "Mental Impairments." (Id.) Dr. Clemente indicated that Dr. Price was totally disabled as to both his job and any other work and gave June 1, 2003 as a date when trial employment could commence. (Id.) He further indicated that Dr. Price was also being treated by Barney Kennedy. (Id.) This form was apparently filled out by Dr. Clemente in response to a letter from Dr. Price:
Enclosed is a long-term disability form which I would request you fill out and forward to Nancy Jolicouer at TCMA Human Resources. I cannot predict how long I will still be out, but the general plan will be to petition the Board of Registration for reinstatement after the legalities are resolved in April sometime. Nancy had suggested we pick an anticipated date for return, then extend it monthly as necessary. I would therefore think maybe 6/1 for anticipated return, and we can move it forward or back as necessary. Then, of course, comes the question of whether they'll want me back . . .
. . . .
. . . I very much appreciate your and everyone's support, and look forward to restarting eventually. In the meantime, I'm doing what I should, and enjoying the break. . . .
(Id. at 72.)
On April 7, 2003, Dr. Price saw Dr. Clemente, who noted that Dr. Price was "doing very well," and that he "hopefully will be returning to work once all of the legal issues are dealt with." (Id. at 469.) On April 9, 2003, Dr. Price had a telephone conversation with Melinda Bubar of DRMS regarding his claim. (Id. at 486.) Bubar's notes indicate:
Substance abuse was ultram and percocet, he is involved in a legal case, as well as being under supervision of med society, board insisted on a voluntary agreement not to practice medicine. Going through monitored rehab, psych 1x week, substance abuse a 1x week, physicians aa 1x week. Real aa 1x week, 1 x month with board physician and weekly Urinalysis.
Date not set regarding the State supervision and decision for him to practice.
. . . .
Tx if effective-hopes not to have this as a problem in the long run.
. . . .
No other conditions affecting his ability to work. . . .
. . . .
Also he is waiting for outside input about when ready to go back to work. The "powers that be" will let him know when they think he can return.
Does he feel he is ready to return to work? He doesn't know. . . .
(Id.)
DRMS requested that both Dr. Tomb (the psychiatrist) and Mr. Kennedy (the substance abuse counselor) provide copies of their medical records and notes regarding Dr. Price. (Id. at 416-17.) Dr. Tomb provided DRMS with his contemporaneous notes of Dr. Price's visits (Id. at 390-95). Mr. Kennedy was somewhat recalcitrant and refused to provide similar notes, asserting that federal regulations only allowed him to provide, at most, a summary of the requested information. (See id. at 245.) Dr. Tomb's notes contain entries for weekly visits from January 3, 2003 to August 12, 2003. (Id. at 390-95.) These notes show that Dr. Price made frequent mention of his legal problems as a concern and an obstacle to returning to work, repeatedly denied having cravings, and contain no mention of any functional impairment or other limitation on his ability to work. (See id.)
Kennedy's summary of his treatment of Dr. Price, dated August 14, 2003, stated that Kennedy had been working with Dr. Price on a weekly basis since November 4, 2002, detailed the three-week outpatient treatment program at AdCare, noted that during the program Dr. Price's urine toxicology screens and breathalyzer tests were negative and that his experience with AdCare was positive, and explained that he had diagnosed him with Opioid Dependence, without physiological dependence, early full remission, and Partner Relational Problem. (Id. at 247-48.)
On September 11, 2003, DRMS had Dr. Alan Elkins perform a medical review of the plaintiff's file. (Id. at 317-21.) Dr. Elkins reviewed all of the available medical records and wrote a report which summarized all of that information and included the following analysis of Dr. Price's claim:
There is no documentation of specific restrictions or limitations regarding Dr. Price's return to work from a substance abuse point of view. His diagnosis includes opioid dependence which was in early full remission of almost nine months. Based on this limited data, it does appear that the claimant is not using narcotics and there is no specific evidence of loss of functional capacity.
In the notes from Richard Tomb, M.D., who is a psychiatrist, there is some history of the claimant's substance abuse. The mental status examination at the time was not remarkable. There is no documentation of any cognitive difficulties. The diagnoses were opioid abuse and dysthymic disorder as well as personality disorder NOS with obsessive-compulsive and narcissistic features. The claimant has been in a weekly psychotherapy with Dr. Tomb from 01/03/03 through at least 08/12/03. The claimant seems to have been quite compliant with the treatment which the claimant has stated in a letter of 06/01/01 was, "for exploration of developmental and interpersonal contributions to substance abuse."
Notes from the claimant's primary care physician, Dr. Clemente, refer to his doing well, most recently 04/07/03, and that hopefully he would return to work once all the legal issues were dealt with. An Attending Physician's Statement by Dr. Clemente of 03/20/03 refers to the treatment being ordered by the Physicians' Health Services and that the claimant was improved but that he was totally disabled even though Dr. Clemente referred to mental impairments as "N/A."
This claimant's situation is one in which there is no specific documentation of functional capacity as such. He entered into an agreement with the authorities in Massachusetts that he would not practice medicine and is obtaining weekly substance abuse and psychiatric treatment. Neither of the providers submits documentation of diminished functional capacity. The claimant obviously cannot practice medicine at this time owing to the fact that he has entered into an agreement not to do so with the licensing authorities. It appears that his substance abuse counselor must release him to return to work.
. . . .
In response to the questions raised by the analyst, in my opinion the medical information does not support any loss of functional capacity at this time due to the claimant's drug dependence or psychiatric symptoms. At the time of his early treatment at AdCare, it is likely that safety issues would have prevented him from practice in view of the accessibility to controlled substances. That certainly continues to be a risk. On the other hand, loss of functional capacity to practice as a physician is not documented and the data indicates that the claimant has no desire to use narcotics. The reasons for the substance abuse counselor not releasing the claimant to work are not clear at this time. There also may be some legal problems that are still unresolved.
(Id. at 321.) Following this report, DRMS asked Dr. Elkins to call Dr. Tomb to clarify the issue of Dr. Price's functional abilities. (Id. at 349.) Dr. Elkins summarized this conversation:
Dr. Tomb informed me that the claimant was a low-key person and an obsessive-compulsive personality kind of guy. He said at the present time he was quite frightened and facing tough prospects regarding legal issues.
Dr. Tomb informed me that there were no cognitive problems with the claimant and no psychosis. He was mildly dysphoric and anhedonic. He continued to be on Zoloft 100mg. He stated that Dr. Price was compliant with his treatment regimen.
I asked Dr. Tomb what would prevent the claimant from resuming his practice, and his response was, "I don't know." He told me that he had not seen the claimant before his difficulties and could not comment on that question. I then followed up with issues regarding functional capacity, and Dr. Tomb took the same approach, that he could not comment. As far as his treatment plan is concerned, he is continuing to meet with Dr. Price weekly in psychotherapy and discussing boundary setting as well as the role of drugs in his life. Zoloft is also prescribed.
I specifically asked Dr. Tomb what might have been the role of his depression with respect to his drug abuse, and he told me that he felt it was a causative factor but could not quantify it in any way. Dr. Tomb did think that the claimant's long-term prognosis was quite good.
. . . .
As I mentioned in my review, safety issues are always a risk in a physician with drug abuse and certainly more so in an individual with this history. It would be desirable to get more data from the drug abuse counselor than that which is already available to assist in further exploring the answers to the claims analyst's questions at this time.
(Id. at 375-76.)
On January 12, 2004, Dr. Tomb wrote a letter to DRMS indicating in relevant part:
The problem with the disability process is that I am not seeing Dr. Price to assess his disability status but for therapy. Even if I were seeing him for such an assessment, it would be difficult to evaluate his ability to work retrospectively. Because of this, I cannot give definitive answers to questions about functioning or disability in the work setting.
However, since we spoke, I have had the opportunity to explore the work issue with Dr. Price much further detail. It is now apparent that the drug abuse which has led him to seek treatment and to be out of work was directly related to his difficulty in practicing medicine. He described being quite insecure about his ability to make decisions, which caused him to be anxious much of the time. He found that the narcotics helped him in his confidence and in mastering his insecurity as well as giving him more energy. He has been re-examining whether he wants to return to the practice of medicine, with its demands for high stakes decisions and the consequent near overwhelming anxieties. I am aware that when he does return to work, there is a substantial risk of relapse; how great a risk will depend on whether he handles the pressure more effectively than when he practiced before. He clearly has more ability to recognize the stress and to deal with it, and would be going back with much more structure and support than previously. At this time, his depression is substantially in remission, but the risk of depression recurring with the return to medical practice and the resulting stress is certainly there. He continues to be unable to practice medicine at this time.
As I had told you on the phone, nobody can fully assess Dr. Price's ability to work prospectively. When he does return, his prognosis is guarded.
(Id. at 249.)
On March 12, 2004, Dr. Elkins wrote a report detailing his second review of the file:
In view of the relationship between the claimant's substance abuse problem and his psychiatric issues, it would be desirable to obtain a review from a psychiatrist with expertise in substance abuse. There are some reports [by Kennedy], as mentioned above, that are not available at this time. It would also be helpful to obtain more recent notes from Dr. Tomb.
. . . .
In response to the analyst's question, although Dr. Tomb's letter of 01/26/04 does state that it was his opinion that the claimant was unable to practice medicine at this time, he also indicates that the claimant's depression is in remission but that there is a significant risk of recurrence with a return to medical practice. Owing to the claimant's history of substance abuse and depression, I have also stated my concern with respect to the issues around safety.
A Medical File Review by a psychiatrist with special expertise in substance abuse is recommended.
(Id. at 225-26.)
On March 25, 2004, DRMS denied Dr. Price's claim. (Id. at 200-03.) DRMS explained that "there does not appear to be any specific documentation that functional capacity appears to be diminished and there is no mention as such." (Id. at 201.) DRMS also explained that "the long term disability policy does not insure for the risk of relapse should you return to practicing medicine," noted that it would have been helpful to have had Mr. Kennedy's counseling records rather than simply a narrative, and suggested that DRMS would be willing to review these if Dr. Price was able to obtain them. (Id.)
2. Round Two
Dr. Price appealed DRMS' decision to deny benefits and submitted additional information: a letter from Mr. Kennedy dated October 28, 2004, affidavits by both Dr. Price and his wife, and a letter from Dr. Tomb dated November 9, 2004. (Id. at 110-30, 872-73.) Kennedy's letter noted that Dr. Price had "[w]ith one week shy of two full years sustained full remission . . ." and had "made excellent progress in reducing his level of depression, inconsistent self-esteem and strong sense of personal and professional failure. . . ." (Id. at 110.) He also noted that "the anxiety that seems to trigger his depression presents as being strictly focused on/restricted to his difficulties/reluctance in practicing medicine." (Id.) Dr. Price then opined about the possibility of Dr. Price returning to work:
[I]t is the anxiety over his overwhelming responsibilities and performance issues and possible subsequent return to a major depression episode that is of primary concern. While I may have little concern for Dr. Price having a relapse based solely on his ability to remain clean and sober, all other things being equal, the massive anxiety/fear associated with his responsibility for his patients, in toto, could well prove to be more fear and anxiety provoking than he can tolerate at this time, and result in a return of his major depression. This, in turn, would greatly exacerbate the probability of his relapsing on opioids. He has not had a relapse, and need not, if he his allowed to strengthen himself by working on the anxiety, depression and continued development of his sobriety plan. One fosters the development of an commitment to the other.
In conclusion, my response in regards as to Dr. Prices' ability to returning to work part- or full-time as a physician is that he may return either part- of full-time, with a few major stipulations or provisos:
1. Dr. Price must retain his ability to write prescriptions for opioids or any medications his patients might legitimately require in order to reestablish and maintain his credibility as a fully qualified physician with his patients and other staff members. However, such prescriptions and constant, full running accountability of prescriptions sheets and pads must be maintained at all times, preferably by another physician he may be working with rather than a hospital administrator of someone in senior levels of the hospital.
2. Dr. Price is recommended to continue participation in the PHS program he is enrolled in for a minimum of an additional three (3) years.
3. Dr. Price is recommended to continue to attend 12-Step Recovery Program (Alcoholics or Narcotics Anonymous meetings) at least once per week and one Colleagues in Recovery meeting per week for an additional three (3) years.
Should all these safeguards be in place, I have no doubt that Dr. Price can now return to work. While it may have been possible for him to return a month or two ago, the risk of relapse, which his long term disability does not protect him for, was considerably higher than it is now.
(Id. at 111)
In contrast, Dr. Tomb's letter, written twelve days later, stated that Dr. Price could not return to work. (Id. at 872-73.) The letter explains that Dr. Price was "clearly an impaired physician" during the time he was abusing drugs, because the drugs "hamper[ed] his judgment and surgical skills, and . . . were thus endangering his patients." (Id. at 872.) Dr. Tomb sought to connect Dr. Price's substance abuse to his occupation:
It is important to understand that the Board of Medicine suspended his license because he was unable to work. Because of Dr. Price's tendency to minimize and deny the facts of his drug use, he has often presented as fully able to work except for the inconvenience of a "stipulation as to the facts" and license suspension. However, the opposite is true: his license was suspended because he was dangerous to his patients.
(Id. at 872-73.)
As to Dr. Price's functional capacity during the relevant time period, Dr. Tomb stated:
His home life is relatively controlled, with child care provided for much of the day and a supportive wife. With this degree of structure and minimal stress, his anxiety is also minimal. However, when there is stress, such as difficulty with the car, with the children, or with a [computer] course, he tends to become anxious and disorganized. He continues to isolate frequently, at least in part because contact with family becomes difficult to tolerate.
On mental status, Dr. Price is alert and oriented. He presents neatly but usually casually dressed. There have been no times when he appeared to be disheveled or neglectful of personal hygiene. He has no psychotic symptoms and he presents with much intellectual material but has difficulty expression emotions. His mood is one of superficial cheerfulness overlying a chronic sense of anhedonia and despair. He denies suicidal thoughts. His primary defenses are intellectualization and denial. He denies craving drugs but admits readily to missing how good they made him feel.
As I have stated before, I am not seeing Dr. Price for the purpose of disability assessment, and am skeptical of my ability to predict the future. However, as I consider this case, the known facts, and his current response to stress, as well as his use of opioids to deal with the stress, his sense of inferiority, his underlying anhedonia and his anxiety, it seems obvious that it would endanger his patients if Dr. Price returned to practice as a Urologist at the present time. He does not give evidence that he has the internal capacity to deal with the extreme stressors that such a position entails. We know that substance abuse tends to have a relapsing course in the best of circumstances, and that occupational stress is a very high risk factor. We also know that the practice of medicine and of surgery is an extremely high stress occupation. Dr. Price is a personable and loving man who has no malice in his nature. However, I feel he continues to be impaired as a physician, that he is not now capable of handling the stress and cannot support any conclusion otherwise.
(Id. at 873.)
In his affidavit, Dr. Price stated that "I ceased work . . . in order to eliminate my exposure to medication and to eliminate risk of patient harm. I also stopped working because I was no longer able to function in my position as a result of my commitment to overcoming my opioid dependence and the symptoms of depression." (Id. at 118.) Under the heading of "IMPACT OF MY ILLNESS OF MY ABILITY TO WORK," he stated that "I felt that the stresses associated with my work as a physician catalyzed my substance abuse. Furthermore, my profession provided illicit means of obtaining opiates." (Id.) Under the heading of "SYMPTOMS, RESTRICTIONS, LIMITATIONS," he stated that "[a]s a result of my substance, I have intermittent cravings for an opiate-type euphoria. For this reason, I am concerned with the risk of relapse if I have easy accessibility to medications. I am unable to safely work in an environment with medication accessibility." (Id. at 119.)
Dr. Price's wife, Valerie Price, described Dr. Price's condition during the period between his arrest on October 24, 2002 and his cessation of work on December 6, 2002:
My husband continued to work for a few months after his arrest. His treatment for depression and drug addiction eventually made it difficult to maintain his rigorous work schedule and continue patient care. In addition, manifestations of his depression made aspects of work less manageable. He became more disorganized, and he did not complete certain aspects of his work, such as the dictation of patients' medical charts.
(Id. at 124-25.) She also described his mental state during the relevant time period when he was not working:
[H]e has had difficulty accomplishing tasks, prioritizing important activities, and even remembering various responsibilities. He is easily overwhelmed by his need to organize every aspect of his life (our checking account, bills, record keeping, catalogs, flights, coupons, etc) and as a result, he is extremely disorganized. He is usually only able to focus on one or two major tasks, and often has to be reminded about events the children have, or things that need to be done around the house.
. . . .
My husband certainly appears depressed, with episodes of altered nighttime sleep, excessive daytime sleepiness, emotional withdrawal, and expressing feelings of worthlessness. I see no evidence of ongoing drug addiction such as erratic behavior (which I actually never saw). His limitations in terms of time management and organization seem to be improving, although this might be the result of a simplification of his schedule.
. . . .
At this time, Howard seems mostly limited by his psychiatric disorder. He is unable to concentrate on more than a few major things, and he becomes upset and withdrawn if he needs to accomplish some previously unspecified task. For example, he is very focused now on his studies. If I ask him to fix something around the house that has broken, it takes months of reminders to get the task done. He becomes angry and/or resentful of my asking him to do something other than what he has planned. He has difficulty prioritizing and often gets enveloped in less important tasks, which he admits is an effort to avoid more stressful ones. When he was still working, although he was still able to care for patients, he became significantly behind in his record-keeping. When his office staff would remind him that he needed to complete his charts, he would avoid the task and thereby dramatically worsen the situation. His procrastination, his forgetfulness and his resentment of expectations placed upon him have been identified by his psychiatrist as aspects of his depression and are currently being explored and treated.
(Id. at 127-30.)
DRMS submitted Dr. Price's claim for an independent medical records review by Dr. Marcus Goldman. (See id. at 812-15.) Dr. Goldman concluded that there was insufficient evidence of Dr. Price's functional impairment:
There is nothing in this chart to indicate that the Axis 1 diagnosis of opioid dependence in full remission is not accurate. There are not enough data, however, to verify the remaining diagnoses listed such as Dysthymia and personality issues. There are no Diagnostic and Statistical Manual of Mental Disorders criteria outlined or detailed that would lead to such conclusions.
. . . .
Some documents indicate rather strongly that he can work as a physician while others state that he cannot. (His psychiatrist, Dr. Tomb, admits that the claimant is being seen for therapy and not being assessed for disability and is skeptical of his ability to predict the future yet nonetheless offers commentary about his ability to work as a physician).
. . . .
It should be pointed out that although this case was replete with a multitude of documents, these letters and reports often consider conjecture and personal philosophical issues rather than concrete finding. There is an abundance of legal perspective with paucity of hard data.
There are no objective data detailing why this claimant cannot function as a physician. Also of note is the claimant's reexamining whether or not he wants to return to being a physician. He is in school for computers. A distinction must be made between not being able to work as a physician and not wanting to — the distinction is not clear in this case.
(Id. at 814-15.)
Dr. Goldman then conducted a second review, responding to questions set forth by DRMS with regards to risk of relapse as well as whether there would have been some period of time (i.e. less than the full two years) when Dr. Price would have been unable to perform the duties of his occupation. (See id. at 747.) Dr. Goldman stated that:
It should be pointed out that there are those who have had addiction issues in their past and have been able to return to work. A history of substance abuse does not preclude an individual from a return to premorbid functioning. While the important work of recovery continues, there are no contraindications to many such individuals returning to work. A past history of substance abuse need not be a death sentence nor does ongoing "recovery" need to be the only aspect of life. If it were true that those with past active substance abuse issues were unable to work, or were unable to perform the duties of their work, a valuable and productive segment of our work force would be lacking — including those in positions of political power. The available documents reveal no contraindications to this claimant both returning to work and continuing his recovery. Since he has not used substances since 2002, active use is not currently an issue.
. . . [T]here are no objective data supportive of inability to work. Presumably, he was unable to work as a physician during the mandated time of his suspension but this represents an administrative/State issue and not a medical or psychiatric one.
. . . That he has not used substances since 2002 is a positive, but not necessarily a scientifically predictive sign.
(Id. at 750.)
On January 17, 2005, DRMS upheld its decision to deny Dr. Price's benefits. (Id. at 728-32.) DRMS again explained that it could not identify restrictions and limitations that would prevent Dr. Price from performing the material and substantial duties of his occupation. (Id. at 731.) Two additional reason for denial were also given. The first was that Dr. Price's inability to work was due to a legal disability — the suspension of his license — rather than "factual" disability, and therefore the claim was not covered. (See id. at 731.) Second, DRMS noted that the Policy excludes "any disability due to . . . your committing or attempting to commit felonious acts," and stated that Dr. Price's claim fit within this exclusion. (Id.) 3. Final Denial
Dr. Price again appealed DRMS' denial of his claim, and submitted more information in favor of his claim: a June 8, 2005 letter from Kennedy (id. at 653-54) and a June 14, 2005 report from Dr. Tomb. (Id. at 650-51.) Kennedy addressed the letter to Dr. Price's counsel, and began by stating that "[t]his letter is forwarded to you in response to your e-mail request of May 31, 2005. It is my most sincere hope that it meets your needs, and Dr. Price is able to receive any disability payments due him." (Id. at 653.) Kennedy explained that Dr. Price was not able to work from October 25, 2002 to October 25, 2004, but was thereafter capable of returning to work. (Id.) Kennedy stated that:
[N]o clinician of any discipline can ever state definitively that anyone will remain completely abstinent in perpetuity. However, the generally acknowledged standard of drug alcohol professionals and others disciplines that have significant exposure to treating AOD patients is that:
1. If effective treatment, education and self-help involvement is provided, and;
2. The patient is not just simply compliant but truly "buys into" his/her recovery for a period of two full years,
3. He is considered to have "attained full sobriety" and is no longer considered disabled.
The patient then achieves the status of "recovering addict/alcoholic," with the understanding that recovery is a life-time process, which must be achieved by working a personal program of recovery "one day at a time." Dr. Price has far surpassed (exceeded) all normal expectations of any reasonable clinician, again, of whatever discipline.
(Id. at 654.)
Dr. Tomb's letter responded to Dr. Goldman's report and stated that:
[T]he diagnostic criteria in DSM-IV for Opioid Dependence (304.00) do not include a category of "in remission". Indeed, opioid dependence is well-known to be a relapsing condition, and to my knowledge nobody ever claims to achieve full remission in this diagnosis. Indeed, Dr. Price recently had positive urine for codeine. Although he denies that he has been using drugs, I think this emphasizes that caution must be observed in making an assessment of future risk.
(Id. at 650.) In response to Dr. Goldman's statement that no diagnostic criteria were included in Dr. Tomb's reports or notes, Dr. Tomb provided these, along with his views of Dr. Price's ability to return to work:
a. The patient experiences a depressed mood for most of the day, for more days than not, by his subjective account, by the observation, as related by him of his wife and on observation during our sessions.
b. When the patient is depressed, he experiences low energy and fatigue, as well as low self esteem, and often has poor concentration, difficulty in making decisions, as well as feelings of hopelessness. He frequently complains of his inability to stop procrastinating.
c. This condition has existed for more than two years, as directly observed by myself.
d. The question of there no major depressive episode [ sic] in the first two years of the disturbance is not as clear-cut. However, I think that he does meet these criteria. He has no manic episodes and has had no psychotic disorders, schizophrenia or delusional disorder. The symptoms appear to be unrelated to substance abuse, since he has been substantially free of opioids over the last two years except for the one positive finding. The symptoms certainly cause the patient significant distress in his social functioning.
The Intensity of the patient's dysphoric affect and anhedonia may also at time reach a level that would allow the diagnosis of Major Depression, Recurrent, Mild (296.31). A recent increase in the dose of bupropion appeared to make a significant difference in his mood as well as in the neurovegetative symptoms of low energy, concentration, and feeling of hopelessness.
As I had stated repeatedly, I am not able to predict the future[,] and psychiatrists in general admit to being extremely limited in this ability. However, I can state that this patient's degree of concentration and difficulty with relatively minimal stress in his life at present make me extremely doubtful that he would be able to handle the pressures of a medical practice at present time. Since this ability has improved recently compared to when we began feel confident in stating that for at least the first two years of treatment, Dr. Price was not capable of practicing medicine. Indeed, if his license were to be returned today, I continue to be pessimistic about his ability to handle the pressures of a urological or any other medical practice.
(Id. at 650.)
Dr. Goldman conducted another review, but found that these additional letters did "not provide objective documentation as to limitations and restrictions that would preclude work capacity as of November 2002." (Id. at 604.)
DRMS also had a third physician, Dr. Stuart Shipko, review Dr. Price's claim. (Id. at 567-73.) Dr. Shipko's report responded to specific questions asked by DRMS. (Id. at 570-73.) DRMS asked Dr. Shipko to "[p]lease advise if there is any support for medically based restrictions and limitations. If so, as of what date were they supported?" (Id. at 570.) Dr. Shipko's response was that:
The records do not contain objective support for medically based restrictions and limitations. . . . It appears that absent the claimant being arrested and having difficulties with licensing he would not have stopped working on the basis of functional impairment related to his substance abuse. . . . There is no evidence that he had functional impairment prior to the time that he stopped working.
The information from the claimant's internal medicine specialist, Dr. Clemente, does not indicate any functional impairment and on his 3/20/03 Attending Physician's Statement he indicated mental impairment was not applicable.
The claimant's psychiatrist, Dr. Tomb, has indicated that he feels that the claimant is not able to work at his usual occupation; however, his office visit notes do not indicate that there was ever any impairment in functionality. It appears that the symptoms of anxiety and depression were minimal and that they would not be of a greater severity than prior to stopping work when he was treated with Zoloft by Dr. Clemente at least as far back as 4/21/99. In his narrative letters, he indicates that he is not evaluating the claimant for disability and that he does not really know what the claimant's functionality was prior to seeking treatment with him. He writes that it seems obvious that it would endanger the claimant's patients if the claimant were to return to practice as of his 11/09/2004 letter, but I do not see that there is anything obvious about why the claimant would be a danger to his patients. He would be far less of a danger abstinent than he was when he was using substances of abuse. In his letter of 6/14/05, he indicates that the claimant's degree of concentration and difficultly with relatively minimal stress in his life makes him doubtful that the claimant could handle the pressures of a medical practice. His office notes, however, do not indicate the concentration was even reported to be of difficulty. The claimant was noted to be doing well in his courses involving computer work. In his 6/14/05 letter, he indicates that the claimant had positive urine for codeine. This is inconsistent with other information provided by Mr. Kennedy who does not indicate that there has been any relapse and there is no file in the records of a drug screen that came back positive.
In summary, I do not see evidence of any actual functional impairment. . . . He writes that he was no longer able to function in his position as a result of his commitment to overcoming his opioid dependence and the symptoms of depression. Although the claimant may have made a personal decision that he wanted to stop working, there is no indication that the claimant had any functional impairment at the time he stopped working onward that would have precluded working at his usual occupation.
(Id. at 570-71.)
DRMS asked Dr. Shipko if he felt that Kennedy's statements as to Dr. Price's work capacity were supported. (Id. at 572.) Dr. Shipko responded that they were not, that "[t]he information that has been reviewed did not indicate that there has ever been any functional impairment," and that he intended to send Kennedy a letter addressing this. (Id.) DRMS asked Dr. Shipko the same question with respect to Dr. Tomb. (Id. at 572.) Dr. Shipko responded that he did "not feel that Dr. Tomb's statements of work capacity are supported," and that he would send Dr. Tomb a letter to ask "if he has ever assessed the claimant's cognition and point out to him that concentration difficultly and problems with minimal stress were not supported by the office visit note that he submitted," as well as to ask why the risk of depression recurring with a return to practice would be the basis for Dr. Price's inability to return to work, given that there was no evidence that Dr. Price's depression, treated since 1999, was ever disabling, and why Dr. Price would be dangerous to patients after he stopped using drugs. (Id. at 573.)
Dr. Shipko sent letters to both Dr. Tomb and Kennedy inquiring as to these concerns and requesting specific information regarding functional limitations. (See id. at 574-77.) Although a letter from Dr. Price's counsel indicated that both Dr. Tomb and Kennedy wished to respond, DRMS never received a response from Dr. Tomb. (See id. at 517, 552.) Kennedy responded by letter dated November 2, 2005:
Dr. Price was psychologically functionally impaired and unable to perform his duties as an actively practicing, licensed urologist from the initial date of his impairment on October 25, 2002 until at least October 25, 2003. In the field of addiction treatment and recovery, it is generally accepted that this first year is the most crucial, although one is not truly believed to be in a state of full sobriety and abstinence until a minimum of two (2) years in the United States. Therefore, this letter should rightly cover the period October 25, 2002 to October 25, 2004.
Specific symptoms and/or "aspects of functional impairment" are listed below:
1. (a) Although Dr. Price had not used the drugs over a period of time long enough to develop a major physical addiction to opioids, he did develop a psychological addiction as well. Consequently, he did not need in-patient hospitalization to undergo a physical withdrawal from the drugs he was abusing. He did, however, still need to withdraw psychologically from the effects of the drugs on his brain. A period of 1-2 weeks of impatient treatment is usually sufficient for one to physically withdraw from the substances, with the first 4-6 days being the most crucial time for his physical survival, safety and well-being.
(b) Dr. Price did, however, still needed [ sic] to withdraw psychologically from the effects of the drugs on his brain. The length of time needed for a person to psychologically recover from opioids is still very much a subject of ongoing debate in professional communities. A base minimum of time needed to facilitate a basic psychological recovery (meaning the addict does not exhibit major craving behaviors) is three (3) months, with the norm being more than one full year post-use. Prior to that, the patient would have to constantly battle with him/herself to not use, especially when the subject of their obsessive thought (the drugs) is within easy reach and access, which is the case with any active, working physician.
(c) Statistically, physical withdrawal from alcohol is much more lethal than that of all other drugs combined. Psychological withdrawal is difficult for all addicts, whether they be compulsive gamblers, food or drug addicts. However, the psychological addiction and withdrawal processes for opioid addicts seem to be the most difficult of all. To subject any patient with an opioid addiction to constant, daily, and all too often, completely overwhelming exposure to the drug their brain is craving so terribly would be both unjust and inhumane.
2. Depending upon how great a tolerance the patient had been able to progress to prior to attempting complete abstinence is also a contributing factor as to whether a patient may be able to undergo their psychological withdrawal faster than another patient. Those whose tolerance levels had not progressed significantly tend to take about a year to recover sufficiently to allow themselves to be re-exposed to the constant presence of drugs in their daily, working lives. Those whose tolerance levels have increased appreciably, as in the case of Dr. Price, will often require a minimum of 1-2 years to be able to return to their duties and be safe with the ever-present drugs in the environment. This phenomenon is so basic to the addiction that the American Psychiatric Association addressed it directly in the Diagnostic Statistical Manual of Mental Disorders, 4th Edition, Test Revision (hereinafter referred to as DSM-IV-TR) on page 270: "Health care professionals with Opioid Dependence will often obtain opioids by writing prescriptions for themselves or by diverting opioids that have been prescribed for patients or from pharmacy supplies." (Emphasis added by this writer.)
3. Finally, "Despite recognizing the controlling role of the substance to a psychological or physical problem (e.g. severe depressive symptoms or damage to organ systems), the person continues to use the substance. The key issue in evaluating this criterion is not the existence of the problem, but rather the individual's failure to ( be able to) abstain from using the substance despite having evidence of the difficulty it is causing.) (DSM-IV-TR, pg 195) ( Italic phrase added by writer to assist in clarification of the sentence.)
To cite a company policy that in any way, directly or indirectly, penalizes an individual for having a substance dependence illness and attempting to recover from said illness is directly against the positions of both the American Medical Association and the American Psychiatric Association, both of which have classified substance dependence issues as not just psychological or psychiatric illnesses, but also as physical illnesses. And, substance dependence is also a covered illness under the Americans with Disabilities Act, which mandates employers provide "reasonable accommodations" whenever possible to those afflicted with the covered illness. To expect the hospital disability insurance to provide an alcoholic or addict employee with disability coverage while undergoing the most intensive portion of their recovery process is most certainly a "reasonable accommodation," particularly in light of the expense of undergoing a job-search for a candidate, undergoing the full credential verification process, etc.
(Id. at 548-49.)
Dr. Shipko responded to Kennedy's letter with an addendum to his review, noting that "Mr. Kennedy did not identify any specific functional impairment in Dr. Price. . . . He commented on how long it takes to recover from psychological effects, but did not identify any restrictions and limitations or areas of functional impairment." (Id. at 509-10.) Dr. Shipko concluded that Kennedy's letter did not change his prior opinion that Dr. Price "was not functionally impaired at the time he stopped working." (Id. at 510.)
On December 5, 2005, DRMS denied Dr. Price's claim for the third and final time. (Id. at 513-19.) This final denial was based on the same reasons as the second denial: insufficient evidence of functional impairment, the assertion that Dr. Price's disability was legal rather than factual, and the application of the Policy's felony-exclusion. (See id.)
V. De Novo Review of the Denial
DRMS argues that Dr. Price is not entitled to benefits for the same three reasons it previously stated in its second and final denials of Dr. Price's claim. First, DRMS argues that Dr. Price has not met his burden of showing that he was "totally disabled" under the Policy because the record lacks evidence of functional incapacity. Second, DRMS argues that Dr. Price cannot work because his license was suspended, and that this constitutes a legal disability, rather than a factual disability, and therefore is not covered by the Policy. Finally, DRMS argues that even if Dr. Price would otherwise be entitled to benefits, the Policy's felony-exclusion applies because Dr. Price's substance abuse involved a felonious act.
Dr. Price argues that his inability to work derived from the symptoms of his opioid dependence, depression, anxiety and cravings, combined with the risk of relapse. In other words, Dr. Price's argument is not that he was unable to perform his job because of the effect that the drugs had on him but rather the opposite: that he could not work because of his underlying mental health problems which took the stage in the absence of the drugs he had been taking as self-medication, combined with the potential for relapse.
Accordingly, there are two avenues by which Dr. Price might prove his claim. First, he might show that his underlying mental health problems directly prevented him from being able to perform all of the material and substantial duties of his occupation. For example, a physician might assert that a mental impairment prevented him from analyzing a patient's symptoms and making a diagnosis, because he was incapable of adequately processing the information. Second, Dr. Price might prove that his underlying mental health problems made it so likely that he would relapse into substance abuse upon a return to work that the existence of this risk rendered him incapable of performing all of the material and substantial duties of his job. The most obvious example of this, outside of the substance abuse context, would be a claimant who cannot perform the strenuous physical duties of his occupation because to do so would put him at a very high risk of a heart attack.
Whether a risk of addictive relapse alone can ever render one unable to perform all of the material and substantial duties of one's occupation is a matter of some controversy. Compare Stanford v. Cont'l Cas. Co., 514 F.3d 354, 357-60 (4th Cir. 2008) (holding that the plan administrator did not abuse its discretion when it concluded that the risk of relapse into addiction did not constitute a disability under the benefit plan) with id. at 361-65 (Ellis, J., dissenting) (arguing that when a plan is silent as to risk of relapse such an exception should not be carved into it, that forcing a claimant "to relapse into addiction or lose benefits would thwart the very purpose for which disability plans exist," and that a basic tenet of insurance law is that one is disabled when returning to work would aggravate a serious health condition).
After reviewing the record and considering the submissions of the parties and the arguments of counsel, I conclude that Dr. Price has not met his burden of showing that he was "unable to perform all of the material and substantial duties of [his] occupation on a full-time basis because of a disability." (See id. at 178.) He therefore is not entitled to LTD benefits under the Policy. (See id.)
A. Inability to Perform Specific Duties
The record fails to establish that Dr. Price's depression, anxiety or symptoms of opioid dependence prevented him from performing the material and substantial duties of his job during the two-year period beginning December 6, 2002. While the record includes statements from Dr. Tomb and Mr. Kennedy describing Dr. Price's symptoms in general terms and offering opinions that Dr. Price was not able to work during the period at issue, what is lacking is record support for those opinions. The actual treatment records that are in the record are at best inconsistent in significant ways with the opinions offered during the claim evaluation process, and in some instances the treatment records — especially those of Dr. Clemente and Dr. Tomb — seem rather to contradict those opinions.
The "Attending Physician Form" filled out by Dr. Clemente on March 20, 2003 indicated that Dr. Price had become disabled on December 6, 2002, but did not identify any objective findings. Dr. Clemente noted that there was no physical limitation of Dr. Price's functional capacity and that the question about any mental impairments was "N/A," not applicable. (Id at 493.) This is consistent with Dr. Price's own contemporaneous statements in the letter to Dr. Clemente requesting that he fill out this form, which made no mention of any functional impairment, discussed only his legal situation as an obstacle to returning to practice, and concluded that he looked forward to returning and in the meantime was "enjoying the break." (See id. at 72.) This letter not only fails to provide any factual basis from which one could infer that Dr. Price was "totally disabled," but also serves to cast doubt upon the scant evidence in the record from which one might draw such an inference.
Dr. Tomb's notes from Dr. Price's weekly visits from January 8, 2003 to August 12, 2003 are similarly lacking in evidence of functional incapacity. (See id. at 390-94.) These notes contain frequent mention of Dr. Price's legal situation, and include multiple statements that Dr. Price denied having cravings or the desire to use drugs. (See id.) When later asked by Dr. Elkins on September 19, 2003 what would prevent Dr. Price from returning to work, Dr. Tomb responded, "I don't know," and stated that he could not comment on his functional capacity. (Id.) at 376.) Dr. Tomb's letter dated January 12, 2004 described Dr. Price's insecurity about his decision-making ability and anxiety as the reasons why Dr. Price resorted to narcotics, but does not mention any of Dr. Price's occupational duties that he was unable to perform as a result. (See id. at 249.)
Dr. Tomb's assessment in his November 9, 2004 letter concerning Dr. Price's ability to practice while taking unlawful prescription drugs also sheds little light on Dr. Price's functional ability to practice during the two-year period when he was not taking those drugs, which is the subject of this litigation. (See id. a 872-73.) Dr. Tomb expressed a concern that since Dr. Price, though his substance abuse was in remission, was susceptible to relapse, and that his return to work could endanger his patients. (Id. at 873.) But again, the opinion is summarily given, without a detailed explanation focused on Dr. Price's ability to perform the duties of a urologist. (See id.) It is one thing to assume that patients might hesitate to be treated by Dr. Price, and quite another to assume that because Dr. Price had mental health and/or substance abuse issues he was functionally impaired. It is important to note that his dysthymia had been diagnosed by Dr. Clemente first in 1999 and that Dr. Clemente had prescribed Zoloft as treatment. There is no indication that this psychiatric disorder under treatment by medication had any impact on Dr. Price's functional capacity prior to his cessation of work on December 6, 2002. Without further information than exists in the record, it is not possible to say that during 2003 and 2004 any continuing psychiatric symptoms could not similarly have been treated successfully to permit Dr. Price to continue to function as a urologist. As to any impairment from illegal use of drugs, during almost all of the period of claimed disability Dr. Price was not using illegal drugs, so even if using them would have reduced his ability to function, there would have been no impairment of function while he had ceased to use them.
Dr. Tomb's letter on June 14, 2005 is similarly unhelpful. It is more descriptive than prior letters as to why Dr. Price fit the diagnostic criteria for "dysthymic disorder" (see id. at 650), but still he did not relate the described symptoms in any persuasive way to Dr. Price's functional capacity. It is not enough simply to say that he has poor concentration. How poor? And how much worse than when he was (apparently) functioning in the 1999 to 2002 period, when he carried the same diagnosis and was getting at least some of the same treatment? Did his poor concentration prevent him from performing his duties, or was he able to perform his duties in spite of it? Simply establishing the diagnosis and need for treatment does not prove disability; what must be shown is that the illness caused a loss in functional capacity, and that is what is missing.
The letters from Mr. Kennedy, the substance abuse counselor, suffer from similar deficits. They focus on what it is reasonable to believe is the very real and present danger that a substance abuser may relapse, but again this general truth is not convincingly tied to Dr. Price's functional capacity. For example, in his letter dated October 28, 2004, Kennedy expresses the view that Dr. Price can return to work subject to some "major stipulations," including supervision of his prescription writing and continuation of his on-going therapy. (See id. at 110-11.) In concluding that Dr. Price was disabled for the two years between October 25, 2002 to October 25, 2004, it appears that Kennedy is simply applying a rule of thumb used by him and his colleagues to the effect that a patient such as Dr. Price must "buy into" his recovery for two full years before it is appropriate to regard him as a "recovering addict." (See id. at 654.) Neither the two-year period of disability nor Dr. Price's readiness as of October 2004 to return to work are explained with specific reference to Dr. Price's ability to function, but rather in terms of the usual clinical course for substance abusers. There is no mention of any aspect of Dr. Price's job that he was unable to perform before October 25, 2004, but is able to do after that. The defendants point out that Kennedy's delineation of the period of disability includes the period between October 25, 2002 and December 6, 2002 when Dr. Price was actually still practicing. This anomaly illustrates the generality of Kennedy's opinions and their failure to address Dr. Price's case specifically on its own terms.
The only evidence in the record that makes any specific connection between Dr. Price's illness and his duties as a urologist and surgeon is contained in the affidavit of Mrs. Price, who described Dr. Price's condition in the period of time between his arrest on October 24, 2002 and his cessation of work on December 6, 2002. (See id. at 124-25.) She noted that his treatment — which at the time included the intensive out-patient treatment at AdCare — made it difficult for him to maintain his rigorous work schedule. (See id. at 124.) Mrs. Price also stated that during this period between his arrest and cessation of work he "became more disorganized, and he did not complete certain aspects of his work, such as the dictation of patient's medical charts." (Id. at 124.)
It is not entirely clear from the record whether Dr. Price continued to self-medicate unlawfully during this period or not. Either way, Mrs. Price's affidavit has very little relevance. If Dr. Price was self-medicating, any description of his difficulties with work would have no bearing on his ability to work when he was not. If Dr. Price was sober during this period, the only relevance would be to undermine Dr. Price's claim that his psychiatric issues interfered with his ability to practice. Falling behind on paperwork hardly separates Dr. Price from the rest of the workforce, much less betokens the existence of a total disability.
Even Dr. Price himself does not describe any specific aspects of his job that were problematic, instead making only the more general statement that he "also stopped working because I was unable to function in my position as a result of my commitment to overcoming my opioid dependence and the symptoms of depression." (See id. at 118.) The only specific reasons Dr. Price gave for stopping work were to eliminate his exposure to medication, the risk of harming a patient, and because he thought that his work catalyzed his substance abuse. (See id.) The risk of harming a patient, if properly supported, would be a reason why Dr. Price might not be able to perform his duties. But there is no evidence that there actually was any such risk in this case. It is not obvious from the record that Dr. Price necessarily was a danger to his patients while he was taking Ultram or Percocet, and it certainly is not obvious that he would have been a danger to patients when he was not. It is the claimant's burden to support such a conclusion or opinion with facts from which that inference can be drawn, and Dr. Price has not done so.
The plaintiff's Statement of Facts cites the Board of Registration in Medicine's "Statement of Allegations" and asserts that "The Board made clear that Dr. Price was functionally incapable of practicing medicine as a result of his condition for at least three years." (Statement of Facts in Supp. of Pl. Dr. Howard Price's Mot. for J. on the R. ¶ 19.) This mischaracterizes the document in question, which contains no reference whatsoever to Dr. Price's functional capacity, nor to his physical or mental condition at the time. Rather, the "Statement of Allegations" is focused on Dr. Price's professional misconduct made punishable under the relevant Massachusetts statutes and regulations. (See id. at 763-66.) Dr. Tomb similarly stated that Dr. Price's "license was suspended because he was dangerous to his patients," (id. at 873) but there is no evidence in the record to suggest that Dr. Price's suspension was based on any forward-looking assessment by the Board of Dr. Price's capacity to function. (See id. at 763-72.) To the contrary, both the Statement of Allegations and the Consent Order are backward-looking, focused on Dr. Price's violations of the law, not his functional capacity or potential dangerousness to patients. (See id.)
B. Risk of Relapse
Assuming for present purposes that the risk that a recovering substance abuser may relapse would be sufficient to support a finding of total disability as defined in the Policy, the evidence in the record does not support a conclusion that such was the case with respect to Dr. Price. The record fails to demonstrate that there was any significant probability of a relapse, nor does it even address the magnitude of such a relapse, were one to occur.
In his letter dated January 12, 2004, Dr. Tomb opined that Dr. Price's drug abuse had been related to his feelings of insecurity and anxiety at work, that "when he does return to work, there is a substantial risk of relapse . . ." and that "the risk of depression recurring with the return to medical practice and the resulting stress is certainly there." (Id. at 249.) But Dr. Tomb also stated that "how great a risk [of relapse] will depend on whether he handles the pressure more effectively than when he practiced before," and added that Dr. Price "clearly has more ability to recognize the stress and to deal with it, and would be going back with much more structure and support than previously." (See id.) This is more or less a statement of the obvious — that some risk of relapse existed, as it would with any addiction. As to the important question, How great a risk? Dr. Tomb's opinion seems to be, That depends. Precisely. And the facts and details on which it depends are absent from the record.
Dr. Tomb's November 9, 2004 letter again opines that Dr. Price's risk of relapse prevents him from practicing, but again Dr. Tomb only gives generally applicable reasons: "We know that substance abuse tends to have a relapsing course in the best of circumstances, and that occupational stress is a very high risk factor. We also know that the practice of medicine and of surgery is an extremely high stress occupation." (See id. at 873.) Again, these general observations fail to offer anything as to Dr. Price's specific risk of relapse.
Interestingly, while Dr. Tomb continued to assert that Dr. Price was unable to work as of November 9, 2004, Mr. Kennedy had already pronounced Dr. Price ready to return to work in his October 28, 2004 letter. (See id. at 110-11, 873.) Kennedy's letter is equivocal in assessing the risk of relapse. He stated that "Dr. Price has made such significant progress . . . that, in my professional opinion, a relapse would seem to be an unlikely probability in and of itself," but he also expressed concern that the stress associated with Dr. Price's occupation would trigger his depression, which "would greatly exacerbate the probability of his relapsing on opioids." (See id. at 110-11.) Kennedy then added that Dr. Price "has not had a relapse, and need not, if he is allowed to strengthen himself by working on the anxiety, depression and continued development of his sobriety plan." (Id.) With the "major stipulations" previously discussed, Kennedy stated that Dr. Price could return to work, adding, without explanation, that the risk of relapse was lower than it had been one or two months before. (See id.)
In sum, the risk of relapse for Dr. Price is identified only in general terms without support from data specific to Dr. Price's circumstances.
C. Summary
For the foregoing reasons, the record does not support Dr. Price's claim that his disability directly rendered him "unable to perform all of the material and substantial duties of [his] occupation," nor that it indirectly had this effect because of his risk of relapse. He therefore is not entitled to LTD benefits under the Policy.
VI. Other Issues
VII. Conclusion
It is SO ORDERED.