Filed: Apr. 30, 2004
Latest Update: Mar. 02, 2020
Summary: 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United 2004 Decisions States Court of Appeals for the Third Circuit 4-30-2004 Soubik v. Director OWCP Precedential or Non-Precedential: Precedential Docket No. 03-1668 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Soubik v. Director OWCP" (2004). 2004 Decisions. Paper 732. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/732 This decision is brought to you for free and open access by the Opinions of t
Summary: 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United 2004 Decisions States Court of Appeals for the Third Circuit 4-30-2004 Soubik v. Director OWCP Precedential or Non-Precedential: Precedential Docket No. 03-1668 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Soubik v. Director OWCP" (2004). 2004 Decisions. Paper 732. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/732 This decision is brought to you for free and open access by the Opinions of th..
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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Precedential or Non-Precedential: Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Soubik v. Director OWCP" (2004). 2004 Decisions. Paper 732.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/732
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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
