Consolidation Coal Company ("Consolidation") petitions for review of a determination of the United States Department of Labor Benefits Review Board (the "Board") that occupational pneumoconiosis hastened the death of Claimant Beatrice J. Kramer's deceased spouse, Marion W. Kramer ("Kramer"), who also suffered from metastasized colon cancer. Because we conclude that the Board's October 10, 2001 Decision and Order affirming the award to Claimant of survivor's benefits pursuant to Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 901 et seq. (the "Act") was supported by substantial evidence, including the competent opinion of the examining forensic pathologist, and was in accordance with the law, the petition will be denied.

Kramer had more than thirty-three years of coal mine employment, and the parties have stipulated that he suffered from occupational black lung disease, a form of pneumoconiosis.1 During his lifetime, Kramer's claims for benefits were denied because testing conducted by Consolidation's examining physicians did not establish that Kramer was "totally disabled" by a respiratory or pulmonary impairment, as required for lifetime benefits. See 30 U.S.C. §§ 901 et seq.

The Act and its implementing regulations provide compensation and other benefits to living coal miners and their dependents where the miner is totally disabled due to pneumoconiosis, and to miners' surviving dependents where death is due to pneumoconiosis. For purposes of the Act, death is considered due to pneumoconiosis if the disease was a "substantially contributing cause or factor" leading to death. 20 C.F.R. § 718.205(c). This term has been held to encompass situations in which pneumoconiosis "actually hastened" the miner's death. See, e.g., Shuff v. Cedar Coal Co., 967 F.2d 977, 980 (4th Cir.1992); Lukosevicz v. Director, OWCP, 888 F.2d 1001, 1004 (3d Cir.1989) (stating that the test is whether the black lung disease "even briefly" hastened the miner's death).2

At the time of his initial application for lifetime benefits in 1991, Kramer testified that shortness of breath interfered with his ability to continue employment, prompting his early retirement at age 55, and Kramer's internist was of the opinion that Kramer was disabled by pneumoconiosis. The administrative law judge's (the "ALJ") 1992 decision concluded that Kramer's alleged shortness of breath was not totally disabling, based on testing performed by Consolidation's physician, Dr. Gregory Fino, whose diagnosis included pneumoconiosis. See September 14, 2000 Decision and Order Granting Benefits at 7. The last of Kramer's non-qualifying pulmonary function and blood gas studies was administered in 1996, when Kramer filed a duplicate claim, approximately two-and-one-half years prior to his death.3 Shortly thereafter, Kramer was diagnosed with cancer of the colon, which metastasized to his liver and then to his lungs.

Following Kramer's death in October, 1998, Dr. Cyril Wecht ("Wecht") conducted an autopsy, reviewed Kramer's medical records, and concluded that Kramer died due to adenocarcinoma of the sigmoid colon with multiple metastases. Wecht also concluded that Kramer's "moderately severe pneumoconiosis" was a substantial contributing factor to his death in that the presence of this secondary disease process further compromised Kramer's respiratory function and added to his cardiovascular burden. Wecht explained that, were it not for the pneumoconiosis, Kramer's non-cancerous lung tissue would have been better able to maintain normal blood gas exchange, allowing Kramer to compensate for a longer time for the respiratory burden caused by the lung tumors. Kramer's treating surgeon, Dr. Michael Reilly ("Reilly"), concurred in the conclusion that pneumoconiosis hastened death, noting that as a result of this condition Kramer's lung tissue was less capable of maintaining oxygenation and CO2 exchange than it otherwise would have been, so that Kramer could tolerate and compensate for less "tumor load" than an individual with otherwise healthy lung tissue.

In the original hearing on Claimant's request for survivor's benefits, Consolidation submitted to the ALJ the medical opinions of its own pathologists, Drs. Jerome Kleinerman, Joseph Tomashefski, and Richard Naeye, and that of a pulmonary disease specialist, Dr. Gregory Fino.4 Each of Consolidation's experts concluded that Kramer's pneumoconiosis did not hasten death. As a basis for this conclusion each expert cited the absence of clinically significant lung dysfunction during Kramer's lifetime and the premise that Kramer's pneumoconiosis was a non-progressive disease, i.e., one that does not worsen after a miner leaves employment.

In the Decision and Order Granting Benefits, the ALJ concluded that Kramer's pneumoconiosis hastened, and was therefore a substantially contributing factor in, Kramer's death, pursuant to 20 C.F.R. § 718.205(c)(2).5 In so holding, the ALJ discussed the medical evidence in great detail and declined to accept the lifetime studies as dispositive. Rather, the ALJ focused on the evidence of Kramer's pulmonary condition near the time of death. In addition, he expressly accorded less weight to Consolidation's experts because of the import they affixed to the lifetime studies.6 On appeal to the Board, Consolidated contended, as it does before this Court, that the ALJ erred in his weighing of the medical evidence and substituted his own judgment for that of the medical experts. The Board rejected these contentions in toto and affirmed Claimant's entitlement to survivor's benefits. We have appellate jurisdiction in this matter pursuant to 20 C.F.R. § 410(a).

The determinations of the Benefits Review Board are reviewed only "for error of law and to assure ... that it has properly adhered to its scope of review." Walker v. Universal Terminal and Stevedoring Corp., 645 F.2d 170, 172 (3d Cir. 1981). The decision of the administrative law judge must be affirmed by the Board if it is supported by substantial evidence and is in accordance with the law. See 33 U.S.C. § 921(b)(3); 30 U.S.C. § 932(a); 20 C.F.R. § 802.301; see also O'Keeffe v. Smith, Hinchman & Grylls Assocs., Inc., 380 U.S. 359, 85 S. Ct. 1012, 13 L. Ed. 2d 895 (1965); Oravitz v. Director, OWCP, 843 F.2d 738, 739 (3d Cir.1988).7 Appellate review thus necessarily entails an independent review of the record and a decision as to whether the administrative law judge's findings were supported by substantial evidence. Walker, 645 F.2d at 172. Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Kertesz, 788 F.2d at 163.

A claimant is entitled to survivor's benefits pursuant to 20 C.F.R. § 718.205(c) if she demonstrates by a preponderance of the evidence that the miner had pneumoconiosis arising from his employment and that the pneumoconiosis was a substantial contributing cause or factor in — defined as one which hastened — the miner's death. See 20 C.F.R. §§ 718.205(a)(1)-(3), (c)(2), (4) and (5); see also supra pp. 204-05.

Consolidation first asserts that all evidence attributable to Wecht should have been disregarded because Wecht failed to include a uniquely detailed description of his microscopic findings in his autopsy report. The microscopic findings portion of that report simply referred to findings consistent with the gross autopsy report;8 in addition, a supplemental report contained a detailed, though standardized, description of his microscopic findings.9 Consolidated asserts that Wecht's use of a reference to findings consistent with the gross autopsy in his autopsy report, and his use of a standard description of microscopic findings in supplemental reports on pneumoconiosis, do not comply with statutory requirements and constitute a "fail[ure] to provide a meaningful microscopic description" of Kramer's lung tissue. See Consolidation's Brief in Support of Petition for Review at 9; 20 C.F.R. § 718.106(a) (requiring that an autopsy report include a "detailed gross macroscopic and microscopic description" of the lung). The ALJ and the Board found that the autopsy report was "consistent in form with the regulation." October 19, 2001 Decision and Order at 8 (citing Dillon v. Peabody Coal Co., 11 BLR 1-113, 114-15 (1988)).

In Dillon, the Board held that "while the[ALJ] should consider the quality standards found in Section 718.106, the standards are not mandatory, and autopsy or biopsy reports cannot be mechanically precluded from consideration ... solely because [of failure] to comply with those standards." To the contrary, in reviewing the autopsy evidence, the ALJ "should determine whether the missing information is essential to the reliability or the probative value of the report" and, where such information is non-essential, the ALJ may consider and accept the report. The Board held that this determination "can only be made by the [ALJ], as fact-finder, based on the unique facts of each case" and that the ALJ is not limited to "the four corners" of the autopsy report in determining its reliability, but "may look to other supportive documents in the record in an attempt to cure any defects in the actual report." Id.

Although the regulations require that the report include a microscopic description of the lungs, they contain no express requirements regarding the form or nature thereof. Here, the autopsy report stated that the microscopic findings were "consistent with," i.e., confirmed, the gross autopsy findings, and incorporated by reference the detailed findings contained elsewhere in the report. The report therefore complied with the letter of the regulation, and Consolidation is thus asking this Court to impose additional formal requirements which both the ALJ and the Board expressly declined to impose. Most importantly, it should be noted that there is no suggestion that the microscopic findings reflected in Wecht's standardized language were in any way inaccurate nor that they did not represent his actual findings in this case. Cf. Director, OWCP v. Mangifest, 826 F.2d 1318, 1327 (3d Cir.1987) (holding that medical judgment contained in a noncomplying report may constitute substantial evidence of disability if it is reasoned and based on medically acceptable clinical and laboratory diagnostic techniques).

Each of Wecht's findings and conclusions was agreed with by one or more of Consolidation's medical experts. Moreover, the microscopic findings on which Consolidation sought to bar consideration of Wecht's evidence, including his testimony, are collateral to Consolidation's current disagreement with Wecht's testimony, which turns on his finding of causation. That finding was manifestly not boilerplate, but was specifically explained in the context of this case. Nothing in the regulations or authority suggests that a technical deficiency in an autopsy report renders separate expert opinions delivered by the examining pathologist incompetent.

Finally, we owe substantial deference to the Board's interpretation of its own administrative regulatory requirements. The Board's finding that Wecht's autopsy report was consistent with the applicable regulation was a reasonable interpretation of that regulation and, accordingly, Consolidation's petition for review will be denied.10

Consolidation maintains that the Board's affirmance of the ALJ's decision must be set aside because it was not supported by substantial evidence. Consolidation's position, and that of its experts, is that pneumoconiosis is a non-progressive disease. Each of Consolidation's experts cites to and expressly relies upon Kramer's continued ability to complete pulmonary function testing and arterial blood gas studies with results within normal limits — testing that demonstrated no clinically significant impairment in his pulmonary capacity up to two and one-half years prior to death — in concluding that Kramer's pneumoconiosis could not have contributed in any degree to his pulmonary burdens and consequently hastened death.11

Thus, Consolidation's experts expressly predicated their opinions on the tenet that Kramer's pneumoconiosis could not have progressed.12 Consolidation argues that the ALJ's "failure to meaningfully weigh and analyze" these experts' evidence "requires the decision be set aside and remanded." Consolidation's Brief in Support of Petition for Review at 22.

As both the ALJ and the Board found, the tenet that pneumoconiosis is non-progressive is simply inconsistent with the "assumption of [disease] progressivity that underlies much of the statutory regime." October 19, 2001 Decision and Order at 9. See 20 C.F.R. § 718.201(c) ("[P]neumoconiosis is recognized as a latent and progressive disease which may first become detectable only after the cessation of coal mine dust exposure."); Mullins Coal Co. of Va. v. Director, OWCP, 484 U.S. 135, 151, 108 S. Ct. 427, 98 L. Ed. 2d 450 (1987). Indeed, our sister Courts of Appeals have uniformly observed this presumption and have gone so far as to caution the industry against continuing to advance an insufficiently supported position to the contrary. See, e.g., Peabody Coal Co. v. Spese, 117 F.3d 1001 (7th Cir.1997) (en banc) (noting that progressivity is inherent in the duplicate claims regulation itself); Lovilia Coal Co. v. Harvey, 109 F.3d 445 (8th Cir.1997); Orange v. Island Creek Coal Co., 786 F.2d 724, 727 (6th Cir.1986); Old Ben Coal Co. v. Scott, 144 F.3d 1045 (7th Cir.1998) (holding that the Department of Labor's view that the disease is progressive "may be upset only by medical evidence of the kind that would invalidate a regulation"). See also Labelle, 72 F.3d at 314-315.13 Accordingly, the ALJ was well within his discretion in discounting the opinions of Consolidation's experts as, if not hostile to the Act, at least premised on a legally untenable presumption.14

In addition, even if the disease were not progressive, the mere absence of any "clinically significant" pulmonary impairment two and one-half years prior to Kramer's death — in tests conducted to determine Kramer's qualification for lifetime benefits, which depended on a finding of total disability — certainly does not establish that Kramer had incurred no damage to his lung tissue and no pulmonary burden of any degree whatsoever as a result of his occupational exposure. Indeed, nothing in the evidence that Consolidation points to would negate the conclusion that a preexisting pulmonary burden, albeit insufficient standing alone to result in a measurable loss of lung function, could nonetheless in combination with a further affront to the pulmonary system through advancing cancer have decreased to some degree the lungs' ability to continue to compensate.15

As the Board noted, the ALJ applied the proper test, which is whether pneumoconiosis hastened the miner's death in any way. See 20 C.F.R. § 718.205(c)(4). And as the ALJ correctly concluded, lifetime disability or impairment "is not an element of proof in `hastening'." September 14, 2000 Decision and Order Granting Benefits at 30. Assessing the evidence from the proper perspective, and taking into account the statutory assumptions regarding the progressive nature of the disease, the ALJ reasonably discounted the evidence of those experts who relied heavily on lifetime studies administered between 1991 and 1996 in concluding that pneumoconiosis did not hasten Kramer's death in October, 1998. See October 19, 2001 Decision and Order at 10 (citing Milburn Colliery Co. v. Hicks). 138 F.3d 524, 533 (4th Cir. 1998) (observing that an administrative law judge must assess the quality of a physician's reasoning). In addition, as the Board also noted, the unequivocal opinions of Wecht and Reilly, on which the ALJ relied, explained clearly how pneumoconiohastened the miner's death.16 Where the ALJ has discussed the qualifications of the competing physicians and the quality of their respective reasoning, and substantial evidence supports the ALJ's findings, which are in accordance with law, the Board will not be held to have erred in affirming his decision.17

It is not the function of this Court to weigh conflicting evidence. Competent evidence for the Claimant tends to establish that pulmonary burden from occupational pneumoconiosis hastened her husband's death from cancer. The ALJ was entitled to accept this evidence and to assign it greater weight than Consolidation's contrary evidence; it is not for us to re-weigh. The petition for review of the decision of the Board will therefore be denied.