Brown v. Rock Creek Mining Co.

ALICE M. BATCHELDER, Circuit Judge,

dissenting.

I disagree with the majority’s view that it is necessary in this case to offer an interpretation of “substantially contributing cause,” I disagree with the interpretation of that term that the majority adopts, and I disagree that this case should be remanded with an order directing the payment of benefits. I therefore respectfully dissent.

A. Interpretation of “substantially contributing cause” is not warranted

I first take issue with the majority’s conclusion that this case requires us to interpret “substantially contributing cause.” I agree with the majority when it writes,

The ALJ ... had required that Mrs. Brown demonstrate that her husband’s death was “significantly caused by” this disease. That standard is not in accord with either the statutory or regulatory language governing the award of black lung benefits. The regulatory language which does govern is that the disease must have been a “substantially contributing cause” of death.

I completely agree that the ALJ applied the wrong standard, or if he knew the correct one, he did not explain his finding enough for us to discern that fact. 1 I am at a loss, however, as to why we must interpret the correct standard, when the ALJ applied the wrong standard altogether.

The ALJ’s error in this case is virtually identical to the ALJ’s error in another case that came before this Court. In Griffith v. Director, OWCP, No. 90-3160, 1990 WL 164635 ,1990 U.S.App. LEXIS 19224 (6th Cir. Oct. 29, 1990) (unpublished), the ALJ denied Griffith, a widow, survivor’s benefits. The ALJ ruled that the medical evidence was conflicting as to whether the decedent had pneumoconiosis, so the ALJ ruled that Griffith failed to prove by a preponderance of the evidence that her husband died of pneumoco-niosis. In his written opinion, the ALJ noted, “Even if I were to find that the Miner had some degree of pneumoconiosis, there is still no evidence in the record to establish that the cause of the Miner’s death was significantly related to or significantly aggravated by pneumoconiosis.” Id., 1990 WL 164635 at *2 , 1990 U.SApp. LEXIS 19224 at *4.

On appeal, Griffith argued before this Court that the ALJ applied an erroneous legal standard to determine whether her husband’s death was due to pneumoconiosis. A panel of this Court held that the standard the ALJ had applied, “significantly related to or significantly aggravated by pneumoconiosis,” was the wrong standard; the correct standard was the “substantially contributing cause” standard. 2 Id., 1990 WL 164635 at *2 , 1990 U.S-App. LEXIS at *5. The Director conceded that the ALJ applied the wrong standard, but asked the court to include with any remand interpretive instrue- *818 tions on what qualifies as a “substantially contributing cause.” Id., 1990 WL 164635 at *2 , 1990 U.S.App. LEXIS at *6. This Court denied the request, saying that interpretive statements would be premature without first having the ALJ apply the correct standard. Id. The Court therefore remanded for consideration under the correct standard.

*817 With respect to the widow’s claim. Dr. Naeye found it most unlikely that pneumoconi-osis played a role in his death. The death certificate gave pneumoconiosis as a significant other condition, but did not list it as a causal factor in Mr. Brown's death. I find that the widow’s case does not have merit, since Claimant’s death was not due to or significantly caused by pneumoconiosis. This was the ALJ’s entire discussion of Mrs. Brown's claim, and it is wholly inadequate. As the majority notes, the ALJ must “make findings of fact and conclusions of law which adequately set forth the factual and legal basis for his decision."

*818 I agree with the approach taken by the Griffith court. Only when an ALJ specifically applies the “substantially contributing cause” standard can we then proceed to consider whether the ALJ’s interpretation of “substantially contributing cause” is a correct one. Therefore, I would have left the interpretation of “substantially contributing cause” for another day. 3

B. The majority erred in adopting the Director’s recommended interpretation

Even if I did agree that the meaning of “substantially contributing cause” was ripe for adjudication, I would not adopt the standard issued today. In its analysis, the majority, citing Pauley v. BethEnergy Mines, Inc., — U.S. -, -, 111 S.Ct. 2524, 2534 , 115 L.Ed.2d 604 (1991), writes that “the Director’s interpretation of the regulations is entitled to substantial deference from the Court.” What is missing from this statement is the conditional that goes with it: If the provisions are ambiguous, the Director’s interpretation is entitled to deference. See id. (“Judicial deference to an agency’s interpretation of ambiguous provisions of the statutes it is authorized to implement reflects a sensitivity to the proper roles of the political and judicial branches.” (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984))). It is difficult for me to say that “substantially contributing cause” is ambiguous and that we need the Director to interpret it for the ALJs or for us. If there is any doubt as to the meaning of these commonly used words, an ALJ can consult any dictionary for guidance, and after that it is our job simply to see if the conclusion drawn by the ALJ is supported by substantial evidence. 4

Where the language of the regulation is clear and plain, not only is there no reason to let the Director offer an interpretation of it and no reason to consult the legislative history, but there is every reason not to do so. First and foremost, of course, Chevron instructs that unless the statute’s provisions are ambiguous, we are simply to give effect to the unambiguously expressed intent of Congress. 467 U.S. at 842-43 , 104 S.Ct. at 2781-82 . The reason for this requirement is obvious: through excursions into legislative history, a writer can find support for virtually any position. Here, for example, the majority cites the chairs of the House and Senate committees responsible for the new “substantially contributing cause” language as indicating during debate that they did not intend “to deny survivor’s benefits when complications of pneumoconiosis have caused a miner’s death or where pneumoconiosis was a substantially contributing factor to death.” This, however, cannot possibly support a reading that benefits should be awarded if pneumoconiosis • serves to “hasten death in any way.” And, within the very same portion of the Congressional Record, we find that several changes to the Act were being *819 made because benefits were being awarded in far too many cases: “Many have contended that the current criteria are simply too loose and that thousands of claimants who are not truly disabled have received benefits.” 127 Cong.Rec. 31,977 (1981). Even Lukosevicz v. Director, OWCP, 888 F.2d 1001 (3d Cir.1989), which adopted the Director’s recommended interpretation, acknowledged that the new standard was “intended to tighten the causal relationship necessary to obtain benefits.” Id. at 1005 .

While I do not think that the legislative history should have been consulted in the first place, I find it particularly disturbing when language that does not even support the author’s position is taken out of context and conscripted to serve the author’s purposes.

C. This case should be remanded for further consideration

I also disagree with the majority’s conclusion that this ease must be remanded for payment of benefits, rather than for further consideration in light of the standard adopted. This court is in a very poor position to weigh evidence, and for that reason it is only the exceptional case in which we remand with an order to award benefits. While I think it probable that Mrs. Brown is entitled to benefits under the new standard announced today, I disagree that the conclusion is so “abundantly clear” as to require us to order that benefits be awarded. If I had been with the majority up to this point in the analysis, I would simply have remanded for further consideration. 5

For the foregoing reasons, I dissent.

. After reviewing the evidence and finding that Mr. Brown’s estate was entitled to benefits, the ALJ considered Mrs. Brown’s claim:

. What the ALJ had done was to apply the old (pre-1982) standard, instead of the "substantially contributing cause” standard that went into effect January 1, 1982.

. I note that each of the other circuits that have ruled on the interpretation of "substantially contributing cause" was presented with a case in which the ALJ had used the correct "substantially contributing cause” standard. See Lukosevicz v. Director, OWCP, 888 F.2d 1001 (3d Cir.1989); Shuff v. Cedar Coal Co., 967 F.2d 977 (4th Cir.1992), ce rt. denied,-U.S.-, 113 S.Ct. 969 , 122 L.Ed.2d 124 (1993); Peabody Coal Co. v. Director, OWCP, 972 F.2d 178 (7th Cir.1992).

. The Director contends that the suggested interpretation is consistent with the dictionary definitions of "substantially," "contributing,” and "cause.” See Director’s Br. at 13 n. 10. The Director also presented this argument to the court in Shuff, 967 F.2d at 980 . The Shuff court did not address whether this interpretation was in line with the dictionary meaning, because it deferred to the Director’s interpretation, finding that "substantially contributing cause” was "not defined anywhere in the regulations.” Id. I disagree with the conclusion that because "substantially contributing cause” is not defined in the regulations, it is thus ambiguous and requires us to defer to the Director's interpretation. Furthermore, I sincerely doubt that the plain meaning of "substantially contributing cause” is equivalent to “having a tangible effect, however minimal” or "hastening death in any way,” as the Director argues.

. Part of the difficulty I have with the majority's position flows from what I perceive to be errors in reading the evidence.

First, once at the beginning and once at the end of section II, the majority correctly states that Dr. Sexton listed pneumoconiosis on the death certificate under "other significant conditions contributing to death.” Then, later in the opinion, the majority writes that the death certificate "noted pneumoconiosis as a condition significantly contributing to Brown’s death” (emphasis added). I note that "significant condition contributing to death” is very different from “condition significantly contributing to death.” This is an important distinction because when considered in the context of the other causes listed on the death certificate, pneumoconiosis probably was not a significantly contributing cause of death. The "cause of death” section on the death certificate reads in full (printed matter in ordinary type; doctor’s writing in italics): Part I

IMMEDIATE CAUSE (Final disease or condition resulting in death)

a. Ventricular Fibrillation, Acute

Interval between onset and death: immediate

Sequentially list conditions, if any, leading to immediate cause. Enter UNDERLYING CAUSE (disease or injury that initiated events resulting in death) LAST

b. Ischemic Heart Disease

Interval between onset and death: minutes

c. Triple Vessel Obstructive, C.A.D.

Interval between onset and death: years

d.Coronary Atherosclerosis

Interval between onset and death: years Part II

Other significant conditions contributing to death but not resulting in the underlying cause given in Part I.

Pneumoconiosis, COPD, [illegible]

Surgery for abdominal aneurysm

(emphasis in original.) When taken as a whole, the death certificate shows only that pneumoco-niosis was a significant condition, not that it was a significant cause. This, of course, does not necessarily mean that pneumoconiosis was not a "substantially contributing cause” under the majority's new interpretation, but it does cut against the majority's characterization of the evidence as ' 'overwhelming. ”

Second, in concluding that the ALJ "failed to consider all the evidence of record,” the majority writes, “Both the death certificate and the autopsy report noted pneumoconiosis as a condition significantly contributing to Brown’s death ...” (emphasis added). When I read the autopsy report, I do not find such a conclusion. In fact, the autopsy report offers no conclusions about the cause of death; it only identifies conditions existing at the time of death. It is the death certificate that, in this case, offers any conclusions regarding the cause of death. Again, I do not imply that this means that the evidence would not support the award of benefits; my concern is that the evidence is not misrepresented.