Opinions of the United 1997 Decisions States Court of Appeals for the Third Circuit
1-14-1997
Lango v. Director OWCP Precedential or Non-Precedential:
Docket 96-3293
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Recommended Citation "Lango v. Director OWCP" (1997). 1997 Decisions. Paper 12. http://digitalcommons.law.villanova.edu/thirdcircuit_1997/12
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No. 96-3293
MARY LANGO, Widow of ANDREW F. LANGO,
Petitioner v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
Respondent/Party-in Interest
On Petition for Review of a Decision of the Benefits Review Board (BRB No. 95-1659)
Submitted Pursuant to Third Circuit LAR 34.1(a) January 13, 1997
Before: SLOVITER, Chief Judge, GREENBERG and SCIRICA, Circuit Judges
(Opinion filed January 14, 1997)
Maureen H. Krueger Jenkintown, PA 19046
Attorney for Petitioner
J. Davitt McAteer Acting Solicitor of Labor Donald S. Shire Associate Solicitor Christian P. Barber Counsel for Appellate Litigation Barry H. Joyner United States Department of Labor Office of the Solicitor Washington, DC 20210
Attorneys for Respondent
1 OPINION OF THE COURT
SLOVITER, Chief Judge.
Before us is a Petition for Review filed by Mary Lango,
widow of a deceased coal miner, from the decision of the Benefits
Review Board (BRB) affirming the denial by the Administrative Law
Judge (ALJ) of her claim for survivors' benefits under the Black
Lung Benefits Act, 30 U.S.C. §§ 901 - 945. The sole issue before
us in this case is whether there was substantial evidence to
support the decision reached by both the BRB and the ALJ that
Mrs. Lango failed to establish that her husband's pneumoconiosis
was a contributing cause of his death. Although we find
resolution of that issue relatively straightforward, there is a
procedural aspect of the case which we believe merits comment. I.
Mrs. Lango's husband worked for sixteen and a half
years as a miner and died at the age of 56 on August 9, 1982. On
August 18, 1982, Mrs. Lango filed a claim for survivors' benefits
under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945, which
was denied on September 29, 1982. On October 19, 1982, she
requested a formal hearing before an Administrative Law Judge, a
request that the brief for the Respondent Director, Office of
Workers' Compensation Programs, concedes was timely.
Nonetheless, after she still had not received a hearing on her
original claim for almost twelve years, she filed another claim
for survivors' benefits dated January 21, 1994.
2 The still-pending 1982 claim was merged with the 1994
claim, and the ALJ held a hearing on January 19, 1995. A
decision was finally issued denying benefits on May 15, 1995,
which the BRB affirmed. It is that decision that is before us,
more than 14 years after the claim was filed. By the time this
case is resolved, Mrs. Lango will be 70 years old.
The Respondent offers no adequate explanation for this
unseemly delay. Its brief merely states that "for reasons which
are not apparent from the record, DOL [the Department of Labor]
did not refer the case to the Office of Administrative Law Judges
for a formal hearing." Respondent's brief at 3. In a footnote
respondent states: "The Director regrets and apologizes for the
lengthy delay in the adjudication of Mrs. Lango's claim." Id. at
n.2.
Were this the only case to come to our attention with
such delay, we would be inclined to attribute it to a rare
bureaucratic snag. However, we note that some recent black lung
cases in this circuit suggest that this dismaying inefficiency is
not unusual; in fact, the problem appears to be common enough
that a brief digression is in order. In Kowalchick v. Director, OWCP, 893 F.2d 615 (3d Cir. 1990), benefits were awarded
seventeen years after the initial claim was filed. Fourteen
years passed in Sulyma v. Director, OWCP, 827 F.2d 922 (3d Cir.
1987), and, as the opinion in that case revealed, Mr. Sulyma was
74 years old when he finally received benefits. Ten years passed
in Gonzales v. Director, OWCP, 869 F.2d 776 (3d Cir. 1989). Nineteen years were required to grant benefits in Kline v.
3 Director, OWCP, 877 F.2d 1175 (3d Cir. 1989). Almost seventeen
years elapsed in Keating v. Director, OWCP, 71 F.3d 1118 (3d Cir.
1995). As far as we can tell, it appears that many cases
languish while waiting for an ALJ or the BRB to hear them.
Although there may have been special circumstances in some of
these cases that explain the delay, and we have not exhaustively
examined the records, there is enough basis in the mere
recitation of the facts to prompt consideration by the relevant
administrators beyond a mere apology.
Delays are especially significant for recipients of
black lung benefits since most are nearing the end of their
lives. Claimants have less time to use the benefits, and they
often must wait when illness is increasing their expenses but
while retirement has reduced their income. Worse, some may die
before litigation resolves their claims.
Chief Judge Posner has expressed similar concerns about
black lung cases in the Seventh Circuit. In Amax Coal Co. v.
Franklin, 957 F.2d 355, 356 (7th Cir. 1992), he remarked, As so often in black lung cases, the processing of the claim has been protracted scandalously . . . Such delay is not easy to understand. These are not big or complex cases . . . . [T]he typical hearing lasts, we are told, no more than an hour . . . The delay in processing these claims is especially regrettable because most black lung claimants are middle- aged or elderly and in poor health, and therefore quite likely to die before receiving benefits if their cases are spun out for years. We hope that Congress will consider streamlining the adjudication of disability benefits cases (not limited to black lung) along the lines suggested by the Federal Courts Study Committee. See the Committee's Report (April 2, 1990), at pp. 55-58.
4 According to one commentator who cited official reports
to Congress, the approval rate for applicants for federal black
lung benefits is exceedingly low. See Timothy F. Cogan, Is the
Doctor Hostile? Obstructive Impairments and the Hostility Rule in
Federal Black Lung Claims, 97 W. Va. L. Rev. 1003, 1004 (1995).
It may be that the lengthy time required to process a claim is
partly responsible. Cogan estimates that on average it takes
about a decade after an attorney opens a file on a black lung
case until benefits are paid and the attorney can collect a fee.
Thus, the magnitude of the delays is also likely to affect the
legal representation available to claimants. Id. at 1004 n.3.
Hopefully, the publication of our concern will come to the
attention of authorities who can do something about it.
We, of course, are not authorized to require an award
of benefits based on an inexplicably long delay, and thus turn to
the merits of the matter before us. We must decide whether the
ALJ or the Benefits Review Board committed an error of law.
Kowalchick v. Director, OWCP, 893 F.2d at 619. Under the BRB's
standard of review, the ALJ's factual findings must be supported
by substantial evidence. Id. Therefore, this court must, when
reviewing factual findings, "independently review the record and
decide whether the ALJ's findings are supported by substantial
evidence." Id. (citations omitted).
II.
5 Under 30 U.S.C. § 901(a) (1982), Mrs. Lango is entitled
to benefits if her husband's death was "due to pneumoconiosis."
When a claim is filed on or after January 1, 1982, "death will be
considered due to pneumoconiosis if any of the following criteria
is met: . . . (2) where pneumoconiosis was a substantially
contributing cause or factor leading to the miner's death or
where the death was caused by complications of pneumoconiosis."
20 C.F.R. § 718.205(c)(2).
In Lukosevicz v. Director, OWCP, 888 F.2d 1001 (3d Cir.
1989), this court considered the meaning of the regulatory phrase
a "substantially contributing cause or factor." After surveying
the legislative history of the 1981 Black Lung Benefits
Amendments, we held that pneumoconiosis is a substantially
contributing cause whenever it actually hastens a miner's death
even if a disease unrelated to pneumoconiosis played a role as
well. Id. at 1006. Thus, we concluded that even if
pneumoconiosis hastened by only a few days a miner's death from
pancreatic cancer, there was a basis to award benefits. Our
interpretation in Lukosevicz has been followed by at least three
other circuits. See Brown v. Rock Creek Mining Co., Inc., 996 F.2d 812, 816 (6th Cir. 1993); Peabody Coal Co. v. Director,
OWCP, 972 F.2d 178, 183 (7th Cir. 1992); Shuff v. Cedar Coal Co.,
967 F.2d 977, 979 (4th Cir. 1992).
In this case, there appears to be no dispute that Mr.
Lango's death was caused by lung cancer. Mrs. Lango notes that
the ALJ did find that x-ray evidence showed Mr. Lango had
pneumoconiosis, a finding the Director does not challenge. The
6 ALJ also found that no evidence rebutted the presumption in
§718.203(b) that Mr. Lango's pneumoconiosis resulted from his
sixteen and a half years of coal mine employment. However, the
ALJ denied benefits based on his finding that Mrs. Lango did not
provide "credible and substantial evidence that pneumoconiosis
contributed to or hastened the miner's death." App. at 14.
The only evidence introduced by the claimant in an
effort to show that Mr. Lango's pneumoconiosis hastened his death
was his death certificate, which had been signed by Dr. Anthony
DiNicola, his treating physician for 25 years, the hospital
records, and a report written in 1994 by Dr. DiNicola stating
that in his opinion pneumoconiosis hastened death. App. at 49.
Inexplicably, at the 1995 hearing before the ALJ the claimant did
not proffer any evidence by Dr. DiNicola, who was still available
to testify about the basis of his opinion.
Looking to the three sources of evidence, the death
certificate, the doctor's report, and the hospital records, we
note that the death certificate listed lung cancer under the
heading "immediate cause of death." App. at 39. It also listed
anthracosilicosis, a form of pneumoconiosis according to §
718.201, as a significant condition contributing to death. Since
Dr. DiNicola signed the death certificate, the ALJ looked to Dr.
DiNicola's report, even though it was prepared 14 years after Mr.
Lango's death, to ascertain if there was a reasoned basis for the
conclusion that pneumoconiosis contributed to Mr. Lango's death
set forth in the 1982 death certificate and the 1994
report.
7 However, in his report, Dr. DiNicola merely opined:
"[b]ecause of the associated co-worker's [sic] Pneumoconiosis,
chronic obstructive pulmonary disease, that is,
Anthracosilicosis, I can state that this entity of Pneumoconiosis
hastened his death." App. at 50. Dr. DiNicola gave no basis for
this conclusion. His report merely stated that "I have enclosed
pertinent records; copies from The Pottsville Hospital and Warne
Clinic, within this packet." App. at 49. Although the records
do support his diagnoses of anthracosilicosis and lung cancer,
this is not an issue in dispute. The difficulty that the ALJ,
the BRB, and we find is that the hospital records do not
specifically explain the doctor's conclusion that the miner's
death was hastened by pneumoconiosis.
It is noteworthy that in rejecting the claim because of
inadequate evidence to show that pneumoconiosis contributed to
Mr. Lango's death, the ALJ did not rely on the opinion by Dr.
Samuel Spagnolo, the physician consulted by the OWCP, that
pneumoconiosis did not hasten Mr. Lango's death. On the
contrary, the ALJ rejected Dr. Spagnolo's opinion as inconclusive
since Dr. Spagnolo did not see any of the positive x-ray evidence
showing Mr. Lango had pneumoconiosis. Nonetheless, the burden
remained on the claimant, and the claimant failed to meet it.
Mrs. Lango argues that Dr. DiNicola had at least as
plausible a basis for his judgment as did the doctor in
Lukosevicz, whose conclusion as to the contributing nature of
pneumoconiosis was deemed a sufficient basis to support the award
of benefits. As the Director notes, however, the critical
8 difference is that in Lukosevicz the physician who rendered the
opinion had performed an autopsy, a revealing diagnostic tool
providing physical evidence to support a medical conclusion. In
contrast, neither Dr. DiNicola nor anyone else performed an
autopsy of Mr. Lango.
The mere statement of a conclusion by a physician,
without any explanation of the basis for that statement, does not
take the place of the required reasoning. As the ALJ stated, "An
assertion which does not explain how the doctor reached the
opinion expressed or contain his reasoning does not qualify as a
reasoned medical opinion." App. at 13. See Freeman United Coal
Corp. v. Cooper, 965 F.2d 443 (7th Cir. 1992) (rejecting a
conclusory statement by doctor that pneumoconiosis contributed to
the miner's death).
It is true, as Mrs. Lango stresses, that Dr. DiNicola
was the miner's treating physician for many years, and that the
treating physician's opinion merits consideration. See Schaaf v.
Matthews, 574 F.2d 157, 160 (3d Cir. 1978). Although there is
some question about the extent of reliance to be given a treating
physician's opinion when there is conflicting evidence, compare Brown v. Rock Creek Mining Co., 996 F.2d 812, 816 (6th Cir. 1993)
(opinions of treating physicians are clearly entitled to greater
weight than those of non-treating physicians) with Consolidation
Oil Co. v. OWCP, 54 F.3d 434, 438 (7th Cir. 1995) (improper to
favor opinion of treating physicians over opinions of non-
treating physicians), the ALJ may permissibly require the
treating physician to provide more than a conclusory statement
9 before finding that pneumoconiosis contributed to the miner's
death.
The claimant emphasizes that the ALJ mistakenly thought
that hospital records for the week prior to Mr. Lango's death
were missing, when, in fact, Mr. Lango was not in the hospital
for that period. Thus, the claimant hypothesizes that the ALJ's
mistake about the hospital records affected his assessment of the
credibility of Dr. DiNicola's report. However, the ALJ did not
disregard information in the hospital records that was otherwise
relevant. Nothing in those hospital records supplies the link
that is missing in this case - a nexus between the pneumoconiosis
and Mr. Lango's death.
The BRB recognized the ALJ's mistake but nevertheless
concluded: "although claimant contends that the administrative
law judge erred in stating that the miner's hospital records were
incomplete, the administrative law judge properly found that the
hospital records do not indicate the role the miner's lungs
and/or anthracosilicosis played in the miner's death." App. at
6. Regretfully, we must agree.
In evaluating the opinions set forth in a medical
report, we must examine the validity of the reasoning of the
opinion. Director, OWCP v. Siwiec, 894 F.2d 635, 639 (3d Cir.
1990). The court in Risher v. Office of Workers' Compensation
Programs, 940 F.2d 327, 331 (8th Cir. 1991), stated that a
factfinder "may disregard a medical opinion that does not
adequately explain the basis for its conclusion." See also Brazzalle v. Director, OWCP, 803 F.2d 934, 936 (8th Cir. 1986);
10 Tennessee Consolidated Coal Co. v. Crisp, 866 F.2d 179, 185 (6th
Cir, 1989); Shrader v. Califano, 608 F.2d 114, 118 (4th Cir.
1979).
The Risher court noted that the mere fact that a death
certificate refers to pneumoconiosis cannot be viewed as a
reasoned medical finding, particularly if no autopsy has been
performed. See Risher, 940 F.2d at 331. Therefore, on the basis
of the record in this case and as presented to both the ALJ and
the BRB, there was no basis upon which we could overturn their
decisions.
We point out that in its brief the Director notes that
Mrs. Lango can request a modification based on another opinion by
Dr. DiNicola if he can supply one, meeting the requirements of
the statutory scheme. The Director cites in support 33 U.S.C. §
922, as incorporated by 30 U.S.C. § 932(a), 20 C.F.R. § 725.310
(permitting DOL to reconsider denial of benefits upon timely
request by a party) and Keating v. Director, OWCP, 71 F.3d 1118
(3d Cir. 1995) (construing the grounds upon which a denial of
benefits can be reconsidered broad enough to include the ultimate
fact of denial). III.
For the reasons set forth above, we will deny the
petition for review of an order of the Benefits Review Board
without prejudice to Mrs. Lango's right to take advantage of the
opportunities noted in the Director's brief.
11 12