Soubik v. Director OWCP

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

4-30-2004

Soubik v. Director OWCP

Precedential or Non-Precedential: Precedential

Docket No. 03-1668

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PRECEDENTIAL Neil A. Grover, Esq. (Argued)

Law Office of Neil A. Grover

2201 N. Second Street

UNITED STATES COURT OF Harrisburg, PA 17110

APPEALS FOR THE THIRD CIRCUIT Counsel for Appellant

Sarah M. Hurley, Esq. (Argued)

No. 03-1668 Howard M. Radzely

Donald S. Shire

Patricia M. Nece

U.S. Department of Labor

JOHN A. SOUBIK, Executor of the Office of the Solicitor

Estate Suite N-2117

of Cecilia Soubik, 200 Constitution Ave., N.W.

Washington, D.C. 20210

Petitioner Counsel for Appellee

v.

DIRECTOR, OFFICE OF WORKERS’ OPINION

COMPENSATION PROGRAMS,

United States Department of Labor

McKEE, Circuit Judge.

On Appeal from the Benefits Review

Board, U.S. Department of Labor

The widow of a deceased coal

(BRB No. 02-0251 BLA) 1

miner returns to this court to appeal the

Benefits Review Board’s third denial of

her claim for survivor’s benefits under the

Black Lung Benefits Act (“BLBA”), 30

Argued December 18, 2003

U.S.C. §§ 901-945. She claims that the

ALJ did not properly weigh the lay and

BEFORE: ROTH and McKEE, Circuit

medical evidence on remand following our

Judges, and CUDAHY * , Senior Circuit

earlier decision, Soubik v. Office of

Judge.

Workers’ Compensation Programs, No.

(Filed April 30, 2004)

1

Widow Cecilia Soubik died after

filing her appeal in this case. The executor

*

Honorable Richard D. Cudahy, U.S. of Mrs. Soubik’s estate, John A. Soubik,

Court of Appeals for the Seventh Circuit, was substituted as the appellant on

sitting by designation. February 5, 2004.

98-6338 (3d Cir. June 25, 1999) (“Soubik the pne umoc o n i o s is h a d n eith er

I”), and that the Board should not have substantially contributed to, nor hastened,

affirmed the ALJ’s decision. For the Soubik’s death as required for BLBA

reasons that follow, we will once again benefits. The BRB affirmed in 1988.

reverse and remand.

In 1986, while her husband’s claim

I. was still being litigated, Cecilia Soubik

filed her claim for survivor benefits under

After mining and hauling coal for

the BLBA. The OWCP administratively

nearly 50 years, Michael Soubik filed a

denied her claim on February 2, 1987, and

claim under the BLBA in August 1980.

Mrs. Soubik requested a hearing before an

The claim stated that Soubik could no

ALJ three days later. The claim was then

longer work because he was short-winded

referred to another ALJ, who found that

and had difficulty climbing stairs. The

the only remaining question was whether

Office of W orkers’ Compensation

pneumoconiosis substantially contributed

Programs (OWCP) denied his claim in

to, or hastened, her husband’s death.

July 1981. He requested a hearing in 1982

after being notified that the denial of

benefits had been reaffirmed, and a

“Clinical pneumoconiosis” consists of

hearing was held before an ALJ in 1986.

those diseases recognized by the medical

He died shortly after the hearing. Dr. Jere

community as pneumoconioses, i.e., the

Wagner, one of his treating physicians,

conditions characterized by permanent

signed a death certificate that listed acute

deposition of substantial amounts of

myocardial infarction as the cause of

particulate matter in the lungs and the

death. In 1987, an ALJ again denied his

fibrotic reaction of the lung tissue to that

application for benefits. Although the

deposition caused by dust exposure in coal

OWCP had stipulated that Mr. Soubik

mine employment. This definition

suffered from coal miners’

includes, but is not limited to, coal

pneumoconiosis, 2 the ALJ concluded that

workers’ pneumoconiosis,

anthra cosilicosis, anthracosis,

anthrosilicosis, massive pulmonary

2

Under 20 C.F.R. § 718.201, fibrosis, silicosis or silicotuberculosis,

pneumoconiosis is defined as: arising out of coal mine employment.

a chronic dust disease of the lung and its ...

sequelae, including respiratory and “Legal pneumoconiosis” includes any

pulmonary impairments, arising out of coal chronic lung disease or impairment and its

mine employment. This definition sequelae arising out of coal mine

includes both medical, or “clinical”, employment. This definition includes, but

pneumoconiosis and statutory, or “legal”, is not limited to, any chronic restrictive or

pneumoconiosis. obstructive pulmonary disease arising out

... of coal mine employment.

2

However, this ALJ concluded that he was BRB remanded the case to an ALJ for

bound by the original ALJ’s determination proceedings consistent with Soubik I. That

that pneumoconiosis did not hasten M r. ALJ again denied Mrs. Soubik benefits.

Soubik’s death. Accordingly, the second The BRB affirmed and this petition for

ALJ denied Mrs. Soubik’s claim for review followed.

survivor’s benefits.

A. Evidence before the third ALJ in

In December 1989, Mrs. Soubik 1997

appealed to the BRB. It affirmed the

The third ALJ had before him the

ALJ’s decision denying her benefits in

medical opinions of three doctors as well

March 1991, and denied her motion to

as the lay opinions of Mr. Soubik’s friends

reconsider its decision in October 1991.3

and family. This evidence is summarized

Mrs. Soubik then submitted a request for

below.

modification of the BRB’s decision to

OWCP,4 which denied it in April 1992. 1. Medical opinions

Over five years later in 1997, a. Dr. Karlavage

OWCP granted Mrs. Soubik’s request for

Dr. Karlavage, who was board-

another hearing before an ALJ. That July,

certified in family practice and dedicated

an ALJ denied M rs. Soubik’s claim. Mrs.

about 40 percent of his practice to treating

Soubik appealed to the BRB, but it denied

coal miners and former coal miners for

her appeal on July 28, 1998. She then

pulmonary problems, treated Mr. Soubik

filed a petition for review in this court.

from October 1985 until his death in April

We reversed the BRB’s affirmance of the

1986. During that six-month period,

ALJ’s decision in Soubik I and remanded

Soubik had three office visits. In his 1986

the case back to the BRB.

deposition, Dr. Karlavage stated that he

Two years later, in June 2001, the was aware of Soubik’s three pulmonary

function tests (“PFTs”). He stated that the

1981 PFT was abnormal, the 1985 PFT

3

Mrs. Soubik and her son sent a letter was normal, and the 1986 PFT was

to the BRB appealing its affirmation of the “essentially normal” because it had some

ALJ’s decision, and the BRB deemed this normal readings although one reading was

letter a motion for reconsideration. “consistent with obstructive lung disease at

29 percent.” Dr. Karlavage also stated in

4

Mrs. Soubik wrote to OWCP stating his deposition that an x-ray from 1981

that she understood she needed to go to indicated anthracosilicosis and one from

federal court so she could submit 1 9 8 5 i n d i c a t e d “ pn e um o c o n i o s i s

additional evidence to continue the claim, uncomplicated.”

and OWCP treated her correspondence as

Based on his examinations of

a request for modification of the BRB’s

Soubik, his review of Soubik’s medical

decision.

3

and occupational history, and the medical doctor who conducted that test did not

tests he ran, Dr. Karlavage concluded that account for the medication Soubik was

Soubik “had lung disease best described as taking and the effect it would have had on

pneumoconiosis and I think did have the PFT.

coronary artery disease.” He concluded

In February 1995, Dr. Karlavage

that the pneumoconiosis was caused by

wrote a letter to Mrs. Soubik’s attorney. It

Soubik’s “exposure over a several decade

stated in relevant part:

period. . . to silica, rock, and coal dusts.”

He reconciled the variable results from the During that time [in which I

three PFTs with his conclusion that took care of Mr. Soubik], I

Soubik’s death was substantially related to had the opportunity to

his pneumoconiosis, stating that Soubik: review a positive chest x-ray

and an abnormal pulmonary

has a chest x-ray that does

function test. As you are

indicate pneumoconiosis.

aware, Mr. Soubik expired

His physical examination

when he was 74 years old at

revealed, in my opinion,

the Shamokin Hospital. The

some lung disease. There is

patient’s death certificate

variability among

indicates arteriosclerotic

pulmonary function tests

heart disease but on further

that certainly does occur. . .

inquiry, the family has

. [P]ulmonary function tests

discovered directly from the

can and do change from

attending physician, that

month to month and from

c o a l w o r k e r ’ s

year to year. So, he was

p n eu m oc oniosis w as

apparently breathing a little

involved in his death. (sic)

bit better more recently.

...

In conclusion, it is my

He also noted a contrary negative reading

opinion, as it was before,

of one of the chest x-rays indicating that

that . . . the patient’s death

Soubik did not have pneumoconiosis.

was substantially incurred

However, he explained that result by

due to c oa l worker’s

noting the “obvious discrepancies” in the

pneumoconiosis. Indeed, he

doctor’s report who read the chest x-ray as

had arteriosclerotic heart

normal. That doctor also claimed that the

disease and nerve block, but

results of a PFT that was taken at the same

there is no doubt in my mind

time as this x-ray were abnormal. Dr.

that coal worker’s

Karlavage also discounted the significance

pneumoconiosis weakened

of the normal PFT in 1985 because the

h i m , w or s e n e d h is

4

condition, and Soubik’s history, Dr. Spagnolo concluded

speeded his death. tha t pneumoco niosis was no t a

substantially contributing factor to

Soubik’s death, and that there was no

b. Dr. Wagner reasonable evidence that the miner’s death

was caused by complications of

Dr. Wagner treated Mr. Soubik for

pneumoconiosis.

his heart condition from May 1984 until

Soubik’s death, and signed Soubik’s death Dr. Spagnolo gave no weight to Dr.

certificate.5 Soubik’s death certificate Karlavage’s medical opinion to the

listed his cause of death as acute contrary because Spagnolo believed that

myocardial infarction with complete heart Karlavage had not adequately explained

block and included cardiogenic shock the normal results of the pulmonary

under “other significant conditions.” Dr. function tests from 1985 and 1986.6 He

Wagner was unaware that Soubik had also also gave no weight to Dr. Wagner’s

been treated by Dr. Karlavage when he opinion because it was based on Dr.

signed the certificate. Nine years after Karlavage’s records and also failed to

Soubik died, Dr. Wagner wrote a letter in explain the normal pulmonary function test

response to an inquiry from Mrs. Soubik. results.

The letter stated that, after reviewing Dr.

Dr. Spagnolo concluded that:

Karlavage’s medical records including

pulmonary function studies and x-ray the medical record in my

findings, Dr. Wagner concluded that opinion provides little

Soubik’s pulmonary impairment secondary evidence for the presence of

to his pneumoconiosis “could have a pneumoconiosis. In fact,

contributed” to the miner’s cardiac the only B-reader report7

condition and subsequent death.

c. Dr. Spagnolo 6

As noted above, that is simply not

The OWCP had Dr. Spagnolo, who true. Dr. Karlavage explained the normal

was board-certified in internal medicine results in 1985 by factoring in the effect of

and pulmonary diseases, review Mr. Soubik’s medication.

Soubik’s medical history. That history

7

included the PFTs from 1981, 1985, and A “B-reader” is a person with a

1986; two blood gas tests; and two chest x- significant level of qualification for

ray readings. Based on his review of reading x-rays, and this court has given B-

readers’ x-ray readings greater weight than

readings by less qualified personnel. See

5

Unlike the other two doctors whose Labelle Processing Co. v. Swarrow, 72

opinions were in the record, Dr. Wagner’s F.3d 308, 310 n.3 (3d Cir. 1995). Only

credentials were not specified. one of the people reading one of Mr.

5

indicates no evidence ...

of coal workers’

In summary, . . . Mr.

pneumoconiosis.

Soubik’s death was not

N evertheless,

c a u s e d b y a

assuming that a

pneumoconiosis. A

pneumoconiosis was

pneumoconiosis was not a

present in M r.

substantially contributing

Soubik, his lung

factor leading to his death

function in 1985 and

and there is no reasonable

again in March 1986

evidence (including a well

shortly before his

reasoned medical opinion)

death was normal.

that his death was caused by

The normal arterial

complications of

blood gas results in

pneumoconiosis.

1985 provide further

s upport for t h e

conclusion that Mr.

2. Lay evidence

Soubik had normal

lung function. Thus, There were lay opinions in the

this medical record record from Mr. Soubik himself as well as

does not provide Mrs. Soubik; Walter Koshinskie, their

reliable evidence of a neighbor and Mr. Soubik’s co-worker;

clinically significant John Soubik, the Soubiks’ son; Frank

impairment of lung Alberts, Mr. Soubik’s brother-in-law; and

function or evidence Adeline Cecilia Dilliplane, the Soubiks’

of progression of any daughter’s mother-in-law.

lung problem at the

a. Mr. Soubik

time of his death.

Therefore, even if Mr. Soubik testified that he had

Mr. Soubik had a suffered difficulty breathing and shortness

pneumoconiosis, it of breath for “the last 15 years and as the

did not result in a years progress, it is getting more and

clinically significant more.” He stated that if he walked a city

impairment of his block he would have to stop; that if he had

heart or lung. to walk up or down steps, he had to stop

several times; and that he coughed up

black mucus at night. He also testified that

he took Brondicon for his breathing and

Soubik’s chest x-rays was a B-reader. He

nitroglycerin for his heart. He retired

concluded that Soubik’s x-ray did not

completely in 1983 due to his breathing

indicate pneumoconiosis.

6

problems, had a heart attack in 1984, and Koshinskie testified at the 1989

never smoked. hearing that he had known Mr. Soubik for

forty years.9 Soubik had hauled coal for

b. Mrs. Soubik

him, and their homes were close to each

Mrs. Soubik testified during the other on the same street. He noticed that

1989 hearing on her survivor claim. She Soubik’s health was slipping because

also stated that her husband took Soubik could not walk well or walk up

Brondicon for his black lung problem. stairs because it would “take his wind.”

She stated that it “sort of loosened up his The day that Soubik died, Koshinskie

phlegm [so] that he had to spit up.” She noticed that he was winded from walking

also testified that he took medication for outside.

his heart after having a heart attack in

d. John Soubik

1986, shortly before his death. The day he

died, he became short of breath and was John Soubik testified at the 1997

taken to the hospital where he was put in hearing that every time he came home to

an oxygen tent. He stayed in the tent until visit his parents, he could see his father’s

he died. condition had deteriorated. He observed

that his father had “considerably slowed

She also testified during the 1997

down,” and heard him make “gasps for

hearing that she personally observed her

air” and have a “trying to catch his breath

husband’s breathing difficulty for “a long

feeling.” He also saw his father raise his

period of time” before his death. Even

chest “like he was trying to get air,” and

after he retired from work and started

“hold[] on to the bannister a lot going

receiving Social Security disability

down the stairs.” John Soubik also took

benefits, he would breathe heavily and spit

his father to the hospital where he was

up blood and mucus every day. The

“hooked. . . up to that breathing

problem was particularly pronounced in

apparatus.”

the evening. She also saw that, just before

his death, he could barely walk and was e. Frank Alberts

very weak.8

Alberts testified at the 1997 hearing

c. Walter Koshinskie that he had known Mr. Soubik, his brother-

in-law, for about 50 years at the time of

Soubik’s death in 1986. Alberts had

8

Mrs. Soubik also testified that her

brother died of pneumoconiosis, i.e. black

9

lung disease, and that she had seen her He also testified at the April 1986

brother daily for about 20 years before his hearing on M r. Soubik’s claim, but that

death. But this testimony is never linked testimony focused on establishing that

to any observations she made of her Soubik had worked as a coal miner and

husband’s illness. hauler.

7

worked with him for about a decade noted that Mrs. Soubik and “the miner’s

starting in the mid-1930s. He “could see sons and sister-in-law” had testified that

[Soubik] gradually slowing down. . . over Mr. Soubik had become short of breath

a period of years” and “could see his over time, but he did not discuss that

breathing was getting slower. . . and he’d evidence.

have to fight for his breath” starting in

C. Soubik I

about 1974 or 1975. He saw Soubik have

trouble catching his breath “pretty In Soubik I, we reversed the BRB’s

regular.” Periodically, he saw him decision affirming the ALJ’s denial of

coughing or spitting when they would benefits, and we remanded for “further

visit. He noticed that Soubik had trouble consideration of the lay evidence.” We

going up the steps in his house as he got agreed with the ALJ that the only dispute

older. was causation. Accordingly, Mrs. Soubik

had to establish that Mr. Soubik’s death

f. Adeline Cecilia Dilliplane

was due to pneumoconiosis, i.e., that

Ms. Dilliplane had known Mr. pneumoconiosis “was a substantially

Soubik since 1969 when her son married contributing cause or factor” leading to her

the Soubiks’ daughter. She stated that Mr. husband’s death or that his “death was

Soubik had trouble helping her son build a caused by com plications of

house. “[H]e would do some things and pneumoconiosis” under 20 C.F.R. §

then he would stop because he’d start 718.205(c).10 We also concluded that Mrs.

wheezing. He’d start coughing.” She said Soubik could prove her claim using

that she thought he had breathing problems “medical evidence alone, non-medical

comparable to hers, and she had serious evidence alone, or the combination of

problems with asthma. Over time, they medical and non-medical evidence” under

saw each other less often but regularly. Hillibush v. Dep’t of Labor, 853 F.2d 197,

During visits she would hear him wheeze 205 (3d Cir. 1988). Hillibush explicitly

and “knew he was having a bad. . . held that lay testimony must be considered

breathing problem.” in a survivor’s case under 20 C.F.R. §

718.204.

B. The ALJ’s 1997 Decision

In the case at hand, we held in

The ALJ’s 1997 decision denying

Soubik I that neither the ALJ nor the BRB

benefits was based on Dr. Spagnolo’s

opinion. The ALJ discounted Dr.

Wagner’s opinion as too vague, and he 10

In Lukosevicz v. Director, OWCP,

discounted Dr. Karlavage’s opinion

888 F.2d 1001, 1004, 1006 (3d Cir. 1989),

because it was based on “the report of the

we held that if the pneumoconiosis hastens

miner’s relatives that pneumoconiosis was

death, even briefly, it can be considered a

involved in the miner’s death” as Dr.

substantially contributing cause of death

Wagner had conveyed to them. The ALJ

under 20 C.F.R. § 718.205(c).

8

had given any consideration to the lay Karlavage’s February 22, 1995 letter

evidence offered in support of Mrs. established that the doctor “bases his

Soubik’s claim, and this evidence “could conclusions regarding the cause of the

be enough to satisfy Mrs. Soubik’s burden miner’s death, in part, . . . only on

of proof that pneumoconiosis hastened her statements from the miner’s relatives.”

husband’s death.” We also noted that the

The ALJ concluded that Dr.

ALJ and BRB had relied heavily on the

Spagnolo’s opinion would outweigh the

opinion of Dr. Spagnolo, and that he had

other doctors’ opinions even if they could

formed his opinion “based on his review of

establish that pneumoconiosis hastened

Soubik’s medical history” rather than the

Soubik’s death because of Dr. Spagnolo’s

opinions of Soubik’s treating physicians,

superior credentials and because “Dr.

Dr. Karlavage and Dr. Wagner.

Wagner. . . did not treat the miner for

D. The ALJ’s 2001 Decision on respiratory problems and Dr. Karlavage

Remand only saw the miner on three office visits

over a six month period.” The ALJ

Upon remand from Soubik I, the

believed that the lay testimony was also

ALJ summarized the lay testimony in the

outweighed by “the thorough and complete

record. He found that the lay opinions did

report of Dr. Spagnolo.” The ALJ

not clearly establish that Mr. Soubik’s

described Dr. Spagnolo as both “[a] highly

ongoing deterioration was due to

qualified. . . pulmonary specialist” as well

pneumoconiosis or a pulmonary condition.

as the beneficiary of a complete review of

He also discussed each of the three

Soubik’s medical records. The ALJ thus

doctors’ opinions again, and reached the

concluded that Mrs. Soubik did not

same conclusion, that Dr. Spagnolo’s

establish pne umoc onio si s w a s a

opinion was the most persuasive.

substantially contributing factor in her

The ALJ again found that Dr. husband’s death or that it hastened his

Wagner’s opinion was “equivocal and death, and he therefore denied survivor’s

vague” because he merely stated that the benefits.

pneumoconiosis “could have contributed”

II. Standard of Review

to the miner’s death, as he had in 1997.

He also found that Dr. Karlavage’s opinion Because the BRB adopted the

was “not well documented nor well ALJ’s factual findings, we independently

reasoned” because “he did not discuss the review the entire record to determine if the

basis for [his] conclusion [that the miner ALJ’s factual findings are rational,

was totally disabled from coal mine consistent with applicable law, and

employment due to his lung disease] given supported by substantial evidence on the

his own deposition testimony that the record considered as a whole. See Mancia

miner’s pulmonary function study results v. Director, OWCP, 130 F.3d 579, 584 (3d

from studies taken in 1985 and 1986 were Cir. 1997) (citing Kowalchick v. Director,

normal.” He also stated that Dr.

9

OWCP, 893 F.2d 615, 619 (3d Cir. 1990)). contributing factor to, Soubik’s breathing

Substantial evidence has been defined as impairment. The ALJ concluded that Dr.

such relevant evidence as a reasonable Spagnolo’s opinion regarding the cause of

mind might accept as adequate to support Mr. Soubik’s breathing problems was

a conclusion. Id. We exercise plenary more persuasive than these lay opinions.

review over the ALJ’s legal conclusions

B. Weighing the medical evidence

adopted by the BRB. Id.; see also Carozza

v. U.S. Steel Corp., 727 F.2d 74, 77 (3d Although the lay evidence alone did

Cir. 1984). not offer an etiology of Mr. Soubik’s

breathing troubles,11 the ALJ improperly

III. Discussion minimized its significance in weighing Dr.

Spagnolo’s opinion and Dr. Karlavage’s

Mrs. Soubik argues that the ALJ did

contrary opinion. Mrs. Soubik argues that

not follow Soubik I on remand because he

this was error because Dr. Spagnolo’s

failed to properly weigh the lay evidence

conclusion that no pneumoconiosis was

in the context of the evidence as a whole.

present contradicted the parties’ stipulation

She also argues that the ALJ did not

to the contrary. She also argues that the

properly consider the opinions of Dr.

ALJ erred in discounting Dr. Karlavage’s

Karlavage and Dr. Wagner. Finally,

opinion and that he misunderstood the

assuming we find these arguments

basis of that opinion.12

meritorious, she requests that we grant her

BLBA benefits rather than remanding and

reversing. 11

The ALJ could hardly expect lay

A. Weighing the lay evidence testimony to establish causation or

etiology. That is beyond the purview or

The ALJ did consider the lay the competence of lay witnesses. Such

evidence on remand per our instructions in testimony can only be expected to

Soubik I. His opinion summarized what corroborate certain symptoms and

each layperson said and analyzed its establish pertinent behavior or quality of

probative value. The ALJ noted that each life issues. Expert testimony will usually

of the lay witnesses established that Mr. be required to establish the necessary

Soubik was having trouble breathing, relationship between such observed indicia

noticed that Mr. Soubik had increased of pneumoconiosis and any underlying

trouble with his breathing over time, and pathology.

observed his frequent coughing and

12

spitting up mucus and/or blood. He then Mrs. Soubik also argues that the ALJ

explained his rationale for rejecting the lay improperly disregarded Dr. Wagner’s

evidence. According to the ALJ, the lay opinion because it was conditional. As

evidence that Mr. Soubik had breathing noted above, his opinion stated that

t r o u b l e d i d n o t e st a b l i sh t h at pneumoconiosis “could” have contributed

pneumoconiosis was responsible for, or a to Mr. Soubik’s death. She cites to Piney

10

In Soubik I we noted that the ALJ or she relied upon such an opinion. Scott v.

“relied heavily” on Dr. Spagnolo’s Mason Coal Co., 289 F.3d 263, 269 (4th

opinion, and that opinion was based solely Cir. 2002) (internal citation omitted). Like

on a review of Soubik’s medical history. the medical opinion in Scott, Dr.

Dr. Spagnolo never saw M r. Soubik. We Spagnolo’s expert opinion states that

thus raised the ALJ’s reliance on Dr. Soubik did not have pneumoconiosis

Spagnolo’s opinion as an issue, but did not despite the parties’ agreement that he did.

definitively state that the ALJ had Dr. Spa gnolo’ s opinion c an be

incorrectly relied on it. Accordingly, there distinguished from the opinion in Scott

is no law of the case regarding the doctors’ because he stated that even if Soubik had

opinions. pneumoconiosis, there is still no evidence

that it contributed to his death. However,

The Court of Appeals for the Fourth

that superficial “hypothetical” does not

Circuit has held that an ALJ may not credit

reconcile his opinion with the stipulation

a medical opinion stating that a claimant

that pneumoconiosis was present.

did not suffer from pneumoconiosis

Common sense suggests that it is usually

causing respiratory disability after the ALJ

exceedingly difficult for a doctor to

had already accepted the presence of

properly assess the contribution, if any, of

pneumoconiosis unless the ALJ stated

pneumoconiosis to a miner’s death if

“specific and persuasive reasons” why he

he/she does not believe it was present.

The ALJ did not explain why Dr.

Spagnolo’s opinion was entitled to such

Mountain Coal Co. v. Mays, 176 F.3d 753,

controlling weight despite Dr. Spagnolo’s

763 (4th Cir. 1999). In Piney M ountain,

conclusion that Soubik did not have the

the court evaluated a medical opinion that

disease that both parties agreed was

stated that “pneumoconiosis could be

present.

considered a complicating factor” in the

miner’s death. The court held only that Moreover, on remand, the ALJ

such an opinion need not be rejected, as obviously misunderstood how Dr.

the petitioner argued, stating that “a Karlavage arrived at his opinion and this

reasoned medical opinion is not rendered contributed to his improper discounting of

a nullity because it acknowledges the Dr. Karlavage’s conclusion. The ALJ

limits of reasoned medical opinions.” Id. cited part of Dr. Karlavage’s letter to Mrs.

However, the court also recognized that Soubik’s counsel, which stated: “The

“uncertainty is not proof, and claimants patient’s death certificate indicates

must prove entitlement.” Id. Accordingly, arteriosclerotic heart disease but on further

under Piney Mountain, the ALJ was free to inquiry, the family has discovered directly

minimize the probative value of Dr. from the attending physician, that coal

Wagner’s conditional opinion but he did worker’s pneumoconiosis was involved in

not have to reject it solely because it his death.” The ALJ then concludes that,

appeared to be equivocal.

11

since Dr. Karlavage based his opinion that lay evidence standing alone does not

pneumoconiosis contributed to Soubik’s provide support for the theory that

death on information from Soubik’s pneumoconiosis hastened or caused Mr.

family, Dr. Karlavage’s opinion was not Soubik’s death. He does not explain why

well-reasoned nor well-documented. he assumed that Dr. Karlavage’s opinion

would be worth less than Dr. Spagnolo’s

That conclusion is not supported by

because Dr. Karlavage took such

substantial evidence. In fact, it is flatly

information into account when forming his

contradicted by Dr. Karlavage’s 1986

opinion. Indeed, it seems that Dr.

deposition, which was part of the record

Karlavage’s opinion would be stronger

from Mrs. Soubik’s earlier hearings before

because it factored in the lay observations

other ALJs. The deposition details Dr.

of those who knew Mr. Soubik.13

Karlavage’s examination and analysis of

three PFTs, the same two chest x-rays that

Dr. Spagnolo relied on, and his own

13

personal observations of the patient. Moreover, at oral argument the

Based on this information, Dr. Karlavage government conceded that Dr. Spagnolo

opined in 1986 that So ubik ’s might have come to a different result if he

pneumoconiosis advanced his death. The had the benefit of the lay evidence. As

language in Dr. Wagner’s 1995 letter, noted above, Dr. Spagnolo concluded that

written nine years after he issued his initial there was no “reliable evidence of a

opinion regarding the factors contributing clinically significant impairment of lung

to Soubik’s death, indicates only that Dr. function or evidence of progression of any

Wagner later amended his opinion to say lung problem at the time of his death.”

t h a t p n eumoconiosis could ha ve Yet it is clear from the testimony of those

contributed to Soubik’s death after he who knew Soubik that he was having an

reviewed Dr. Karlavage’s records and increasingly difficult time breathing and

opinion. Dr. Karlavage’s opinion was regularly coughed up mucus. Moreover,

based on much more than just the family’s the testimony of those who knew Soubik

opinion that pneumoconiosis hastened also established that he was placed in an

Soubik’s death. It was therefore irrational oxygen tent when last admitted to the

for the ALJ to discount Dr. Karlavage’s hospital and that he never recovered. The

opinion merely because it refers to Dr. ALJ never explained why testimony as

Wagner’s 1995 letter. compelling as this can be ignored in favor

of a doctor who opined that Soubik had no

It was also improper for the ALJ to

“clinically significant” lung problems.

assume that Dr. Karlavage’s consideration

This is especially true when that doctor

of information from Mr. Soubik’s family

never saw the patient, and all but ignored

and others who had observed him regularly

the fact that parties are assuming that

was a failing. The ALJ did not explain

pneumoconiosis was present given their

that assumption. He stated only that the

stipulation on this point.

12

The ALJ also failed to give Dr. be granted compensation upon remand.14

Karlavage’s opinion the additional

We agree that this litigation has

deference it was due as the opinion of a

been unnecessarily protracted. We have

treating physician. The ALJ stated that he

previously expressed our frustration over

did not credit Dr. Karlavage’s opinion as

the inefficiency and delay that is all too

that of a treating physician because Dr.

often part of the black lung administrative

Karlavage had only seen Soubik three

process. We have done so in a case where

times over six months. That was, of

a claimant had been litigating her claim for

course, three more times and six months

benefits for seven years, ten fewer years

more than Dr. Spagnolo saw him. So

than Mrs. Soubik. Mancia, 130 F.3d at 593

easily minimizing a treating physician’s

(internal citation omitted). In Mancia, we

opinion in favor of a physician who has

quoted our decision in Lango v. Director,

never laid eyes on the patient is not only

OWCP, 104 F.3d 573 (3d Cir. 1997) in

indefensible on this record, it suggests an

noting that we had “previously expressed

inappropriate predisposition to deny

our concern over the ‘dism aying

benefits. It is well-established in this

ine f f ic ie ncy’ of the bla c k lu ng

circuit that treating physicians’ opinions

administrative process.” 130 F.3d at 593

are assumed to be more valuable than

(quoting Lango, 104 F.3d at 575-76). The

those of non-treating physicians. Mancia v.

delay in Lango was 14 years, again

Director, OWCP, 130 F.3d 579, 590-91

substantially shorter than the delay that

(3d Cir. 1997). The ALJ nevertheless

Mrs. Soubik was made to endure. We

ignored Dr. Karlavage’s clinical expertise;

there gave several examples of inordinate

an expertise derived from many years of

diagnosing and treating coal miners’

pulmonary problems. The ALJ did so

without making any effort to explain why

Dr. Spagnolo’s board certification in

pulmonary medicine was a more 14

Mrs. Soubik also argued that the

compelling credential than Dr. Karlavage’s

delay was particularly unfair to her

many years of “hands on” clinical training.

because she was 85 years old, implying

C. Directing BLBA benefits that she might not live long enough to

receive the benefits she was due if we did

We turn to the final issue that Mrs.

not direct the BRB to grant them. As

Soubik raises. She asks us to remand this

noted above, Mrs. Soubik died before oral

case to the BRB solely to direct entry of an

argument in this case. In light of her

award of benefits based on the inordinate

death, we need not now consider this

delay in properly adjudicating her claim.

argument. It is, however, an all too tragic

She argues that allowing her claim to drag

example of the kind of hardship that can

on any longer would be unfair and

result from the all too frequent delay in

inappropriate because she would certainly

these cases.

13

delay ranging from ten years 15 to as many many cases languish while

as seventeen,16 and even nineteen years.17 waiting for an ALJ or the

We then stated, “[h]opefully, the BRB to hear them.

publication of our concern will come to the Although there may have

attention of authorities who can do been special circumstances

something about it.” Lango, 104 F.3d at in some of these cases that

576. We made that statement in 1997. explain the delay, and we

Yet, even after that admonition, it took the have not ex haus tively

BRB two years to remand this matter to examined the records, there

the ALJ following our remand to the BRB. is enough basis in the mere

We therefore have little reason to think recitation of the facts to

that the delays that attend black lung prompt consideration by the

litigation have been mitigated or even relevant administrators . . . .

addressed by the administrative agencies

Dela ys are esp ecially

involved. Given our continuing concern,

significant for recipients of

we take the liberty of reiterating at length

black lung benefits since

the concerns we expressed in Lango:

most are nearing the end of

Were this the only case to their lives. Claimants have

come to our attention with less time to use the benefits,

such delay, we would be and they often must wait

inclined to attribute it to a when illness is increasing

rare bureaucratic snag. their expenses but while

However, we note that some retirement has reduced their

recent black lung cases in income. Worse, some may

this circuit suggest that this die before litigation resolves

dismaying inefficiency is their claims.

not unusual . . . . As far as

Chief Judge Posner has

we can tell, it appears that

expressed similar concerns

about black lung cases in the

Seventh Circuit. In Amax

15

See Gonzales v. Director, OWCP, Coal Co. v. Franklin, 957

869 F.2d 776 (3d Cir. 1989). F.2d 355, 356 (7th Cir.

16

1992), he remarked:

See Keating v. Director, OWCP, 71

F.3d 1118 (3d Cir. 1995); Kowalchick v. As so often in black

Director, OWCP, 893 F.2d 615 (3d Cir. lung cases, the processing of

1990). t h e c l a im h a s b e e n

protracted scandalously . . .

17

See Kline v. Director, OWCP, 877 Such delay is not easy to

F.2d 1175 (3d Cir. 1989).

14

understand. These of benefit claims. “According to one

are not big or commentator who cited official reports to

complex cases . . . . Congress, the approval rate for applicants

The typical hearing for federal black lung benefits is

lasts, we are told, no exceedingly low.” Id. at 575-76 (citing

more than an hour . . Timothy F. Cogan, Is the Doctor Hostile?

. The delay in Obstructive Impairments and the Hostility

p r o c e s s in g t h es e Rule in Federal Black Lung Claims, 97 W.

claims is especially V A. L. R EV. 1003, 1004 (1995)). The

regrettable because sweat and health of miners fueled much of

most black lung the growth of the American economy. It is

claimants are middle- indeed unfortunate that they and their

aged or elderly and families must also now endure the kind of

in poor health, and administrative ordeal evidenced by M rs.

therefore quite likely Soubik’s attempt to collect survivor’s

to die before benefits.

receiving benefits if

Nevertheless, however frustrating

their cases are spun

this may be, as a court we can not direct

out for years. We

the award of black lung benefits solely

hope that Congress

because of protracted administrative delay.

will consider

See Mancia, 130 F.3d at 593. Although

s t r ea m l i n in g t h e

the length of any delay is a factor we have

adjud ication of

often considered when determining

disability benefits

whe t h e r to r e ma n d f or f urt h er

cases (not limited to

consideration or to direct benefits, we

black lung) along the

previously noted that remand for an award

lines suggested by

of benefits is inappropriate where the

the Federal Courts

record supports conflicting inferences. Id.;

Study Committee.

Kowalchick v. Director, OWCP, 893 F.2d

See the Committee’s

615, 624 (3d Cir. 1990).

Report (Ap ril 2,

1990), at pp. 55-58. Here, the unexamined evidence

could support a finding for or against Mrs.

104 F.3d at 573-75. Protracted delay that

Soubik. If Dr. Karlavage’s opinion as a

results in claimants not living long enough

treating physician is given proper weight,

to collect any benefits they might be

and if the lay evidence is properly

entitled to is, in and of itself, an injustice

considered, the record supports only one

that ought to be addressed. However, the

result: an award of benefits to Mrs.

s i tu a t i o n is ex ac er ba ted by a n

Soubik. If, however, the ALJ had offered

exceptionally low rate of agency approval

“specific and persuasive reasons” for

15

relying upon Dr. Spagnolo’s opinion reasoned explanation for a contrary

despite findings that are contrary to the finding.18 Accordingly, we believe that

parties’ stipulation and the opinion of the Mrs. Soubik, the original petitioner, has

treating physician, the record would established her entitlement to survivor’s

support the ALJ’s denial of benefits. benefits under the BLBA, and we will

direct that an award of those benefits be

The ALJ and BRB have already had

entered on remand.

three chances to properly support a

decision denying benefits. Yet the IV.

decision to deny benefits remains

We will reverse the decision of the

unsupported by the record. This, together

BRB entered on January 8, 2003, and

with the outrageous delay, leads us to

remand the case for an award of benefits

agree that circumstances here require that

as of the appropriate commencement date.

we direct benefits on remand. We see no

Since this case has been litigated for nearly

point in remanding these issues for a

two decades already, we assume that the

fourth time when the ALJ and BRB have

BRB will expedite that award.

thus far been unable to justify elevating

Dr. Spagnolo’s opinion over that of the

treating physician, the lay evidence, and

ROTH, Circuit Judge, dissenting:

the parties’ o wn stipu lation. See

Podedworny v. Harris, 745 F.2d 210, 223 My reading of the record in this

(3d Cir. 1984) (concluding that “it would appeal does not persuade me that it

b e virtually imp ossib le for th e supports only one result - as is concluded

[government] in a third hearing to adduce by the Majority. Nor do I believe,

the new vocational and medical evidence pursuant to our standard of review – are

that would be necessary to support a the ALJ’s factual findings rational,

finding that th[e] appellant is not disabled” consistent with applicable law, and

in a social security benefits case, given supported by substantial evidence on the

significant “deficiencies in the record and record considered as a whole – that the

the failure of the [government] to cure Court is justified in reversing the judgment

them in the second proceeding before the of the Benefits Review Board – however

ALJ. . . .”). much I may feel personal sympathy for

Mrs. Soubik.

Dr. Karlavage’s opinion was based

on actual treatment as well as a record I do, however, agree with the

review. Dr. Karlavage’s clinical expertise,

derived from an extensive practice of

treating miners, the corroboration of lay 18

We reach this conclusion without

testimony, and the stipulation of the

disturbing the ALJ’s finding that Dr.

parties, provide more than sufficient

Wagner’s opinion was too vague to be

support for Mrs. Soubik’s claim absent a

useful.

16

majority that the protracted delay in

resolving federal black lung benefits cases

is regrettable.

17