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Soubik v. Director OWCP Precedential or Non-Precedential: Precedential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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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 the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. 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.