BRB No. 98-1518 BLA

JANET R. ELKINS                         )
(o/b/o and Widow of BOBBY L. ELKINS)    )
                         )
          Claimant-Petitioner           )
                         )
     v.                            )
                         )
CLINCHFIELD COAL COMPANY      )    DATE ISSUED:08/25/1999            

                         )
          Employer-Respondent      )
                         )
DIRECTOR, OFFICE OF WORKERS'       )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR         )
                         )
          Party-in-Interest             )    DECISION and ORDER

     Appeal of the Decision and Order of Edward J. Murty, Jr., Administrative
     Law Judge, United States Department of Labor.

     Bobby S. Belcher, Jr. (Wolfe & Farmer), Norton, Virginia, for claimant.

     Timothy W. Gresham (Penn, Stuart, & Eskridge), Abingdon, Virginia, for
     employer.

     Before:  HALL, Chief Administrative Appeals Judge, McGRANERY,
     Administrative Appeals Judge, and NELSON, Acting Administrative Appeals
     Judge.

     PER CURIAM:

     Claimant[1]  appeals the Decision and Order
(97-BLA-1531) of Administrative Law Judge Edward J. Murty, Jr. denying benefits on
both miner's and survivor's claims filed pursuant to the provisions of Title IV of
the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C.
§901 et seq. (the Act).  In the initial Decision and Order,
Administrative Law Judge John S. Patton adjudicated the miner's claim pursuant to
20 C.F.R. Part 718, credited the miner with "at least" twenty-five years of
qualifying coal mine employment, and found that the miner established all requisite
elements of entitlement.  Accordingly, benefits were awarded.  M-Director's Exhibit
34.  Employer appealed and the Board affirmed Administrative Law Judge Patton's
finding that the existence of pneumoconiosis was established pursuant to 20 C.F.R.
§718.202(a)(2), but remanded the case for him to determine whether the miner's
lung cancer would satisfy the definition of pneumoconiosis pursuant to 20 C.F.R.
§718.201, and to make findings pursuant to 20 C.F.R. §§718.203(b),
718.204(c), and if reached, 718.204(b). Elkins v. Clinchfield Coal Co., BRB
No. 90-717 BLA (May 21, 1991)(unpub.); M-Director's Exhibit 37.  Due to
Administrative Law Judge Patton's retirement, the case was reassigned to
Administrative Law Judge Aaron Silverman, who found that the miner's lung cancer
did not satisfy the definition of statutory pneumoconiosis under Section 718.201. 
Administrative Law Judge Silverman also found, however, that the miner's clinical
pneumoconiosis that was previously established pursuant to Section 718.202(a)(2)
arose out of coal mine employment pursuant to Section 718.203(b), but that his
total disability was not due to pneumoconiosis pursuant to Section 718.204(b). 
Accordingly, benefits were denied.  M-Director's Exhibit 39.  The miner appealed
and the Board affirmed Administrative Law Judge Silverman's denial of benefits.
Elkins v. Clinchfield Coal Co., BRB No. 92-1925 BLA (Feb. 8, 1994)(unpub.);
M-Director's Exhibit 42.  Subsequently, the Board denied the miner's request for
reconsideration. Elkins v. Clinchfield Coal Co., BRB No. 92-1925 BLA (Jun.
27, 1996)(unpub. Order); M-Director's Exhibit 47.  Thereafter, the miner filed a
petition for modification, M-Director's Exhibit 48, but died on May 28, 1996,
before a decision was rendered.  S-Director's Exhibit 7.  Claimant filed her
survivor's claim on July 24, 1996.  S-Director's Exhibit 1.  The claims were
consolidated and a hearing was held by Administrative Law Judge Murty
(administrative law judge) who issued the Decision and Order currently under
review.  He determined that neither the miner's disability nor his death was due
to pneumoconiosis under Sections 718.204(b) and 718.205(c).[2]   Accordingly, the administrative law judge denied benefits on both the
miner's and survivor's claims.

     On appeal, claimant argues that the administrative law judge erroneously
failed to find that the miner's coal dust exposure contributed to the progression
of his lung cancer, resulting in his total disability and death.  Employer
responds, urging affirmance of the denials on both claims.  The Director, Office
of Workers' Compensation Programs, has filed a letter indicating he will not
participate in this appeal.

     The Board's scope of review is defined by statute.  If the administrative law
judge's findings of fact and conclusions of law are supported by substantial
evidence, are rational, and are consistent with the applicable law, they are
binding upon this Board and may not be disturbed.  33 U.S.C. §921(b)(3), as
incorporated by 30 U.S.C. §932(a);  O'Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965).

     Claimant argues that the administrative law judge erroneously failed to accord
determinative weight to the opinion of Dr. Robinette, the miner's treating
physician, that the miner's totally disabling respiratory impairment was coal dust
related and that his pneumoconiosis hastened death.[3]   Contrary to claimant's argument, however, although the United States
Court of Appeals for the Fourth Circuit, within whose jurisdiction this case
arises, and the Benefits Review Board have held that the opinions of treating
physicians may be accorded special weight based on that status, see Onderko v.
Director, OWCP, 14 BLR 1-2 (1989); Revnak v. Director, OWCP, 7 BLR 1-771
(1985) neither "has ever fashioned either a requirement or a presumption that
treating or examining physicians' opinions be given greater weight than opinions
of other expert physicians."  Therefore, we reject claimant's contention that Dr.
Robinette's status as a treating physician alone entitles his opinion to
dispositive weight.  Grizzle v. Pickands Mather and Co., 994 F.2d 1093,
1097, 17 BLR 2-123, 2-128-189 (4th Cir. 1993); see also Grigg v. Director,
OWCP, 28 F.3d 416, 420, 18 BLR 2-299, 2-307 (4th Cir. 1994).  Rather, this is
one factor the administrative law judge may consider in weighing the medical
opinion evidence. See Grigg, supra; Revnak, supra.

     Claimant additionally argues that the administrative law judge
mischaracterized Dr. Robinette's opinion by finding that Dr. Robinette did not
consider the miner's cigarette smoking history when determining whether the miner's
condition was related to coal dust exposure.[4]  
In according little weight to Dr. Robinette's opinion, the administrative law judge
stated that: 

     ...Dr. Robinette seemed to avoid consideration of the miner's smoking
     abuse in fixing responsibility for the miner's pulmonary problems.  Mr.
     Elkins had one of the more egregious smoking habits which I have seen in
     my nineteen years as a black lung judge.  I have no doubt that it caused
     him to lose his lung and ultimately his life.  To read the reports of
     Drs. Vanover and Robinette, you would never know he was a smoker.  These
     doctors are less than candid.  Similar behavior has led me to disregard
     the findings of Dr. Robinette in the past [citations omitted].  I do so
     again.

Decision and Order at 4.  Although it is a permissible exercise of the
administrative law judge's discretion to find less persuasive a physician's opinion
on the cause of disability because the physician relied upon an understated
cigarette smoking history, see Bobick v. Saginaw Mining Co., 13 BLR 1-52,
1-54 (1988); Maypray v. Island Creek Coal Co., 7 BLR 1-683, 1-686 (1985),
there is no evidence of record to suggest that Dr. Robinette's notation that the
miner "smoked in the past" and was a non-smoker during the course of his treatment
constituted either a failure to adequately consider the smoking history or an
effort to evade this issue. See S-Director's Exhibit 19.  Therefore, the
administrative law judge's proffered ground does not support his rejection of Dr.
Robinette's opinion on the effect of pneumoconiosis on the miner's respiratory
condition. See Freeman United Coal Mining Co. v. Stone, 957 F.2d 360, 362,
16 BLR 2-57, 2-61 (7th Cir. 1992).  Furthermore, the administrative law judge
engaged in medical speculation without foundation in the evidence of record by
concluding that the miner's smoking habits "caused him to lose his lung and
ultimately his life." Amax Coal Co. v. Beasley, 957 F.2d 324, 16 BLR 2-45
(7th Cir. 1992); Wetherill v. Director, OWCP, 812 F.2d 376, 382, 9 BLR 2-239, 2-247 (7th Cir. 1987); Kertesz v. Crescent Hills Coal Co., 788 F.2d
158, 163, 9 BLR 2-1, 2-8 (3d Cir. 1986) (administrative law judge "cannot
substitute his expertise for that of qualified physician, and, absent
countervailing clinical evidence, or a valid legal basis for doing so, cannot
simply disregard medical conclusions of a qualified physician."); Dolzanie v.
Director, OWCP, 6 BLR 1-865, 1-867 (1984).[5] 
 Moreover, because the administrative law judge is required to conduct a de
novo review of the evidence of record in its entirety and to adjudicate each
case independently, the administrative law judge impermissibly relied on analogous
cases in which he had previously rejected Dr. Robinette's opinion for similar
reasons.  Decision and Order at 4. See Administrative Procedure Act, 5
U.S.C. §557(c)(3)(A), as incorporated into the Act by 5 U.S.C.
§554(c)(2), 33 U.S.C. §919(d) and 30 U.S.C. §932(a).

     Claimant additionally avers that the administrative law judge improperly
rejected the opinions of Drs. Vanover and Abrenio by relying on a statement made
by United States Supreme Court Justice Marshall in Usery v. Turner-Elkhorn
Mining Co., 96 S.Ct. 2882, 3 BLR 2-36 (1976), that simple pneumoconiosis is
generally regarded as seldom productive of significant respiratory impairment.  The
administrative law judge specifically noted that the statements of Drs. Vanover and
Abrenio that persons suffering from pneumoconiosis have markedly abnormal pulmonary
function are difficult to accept in the face of Justice Marshall's statement in
Usery, that simple pneumoconiosis is seldom productive of respiratory
impairment.  Decision and Order at 4.

     We agree with claimant.  An examination of Usery indicates that while
the administrative law judge has accurately cited this case, this passage does not
preclude the possibility that simple pneumoconiosis can cause a respiratory
impairment. See Usery, 3 BLR at 38; Decision and Order at 4. 
Consequently, this statement alone is an insufficient basis upon which to support
a rejection of the reports of Drs. Abrenio and Vanover.  Since the administrative
law judge's analysis of the evidence is unsound, we vacate the administrative law
judge's discrediting of the opinions of Drs. Vanover and Abrenio for the reason
given.

     Finally, citing Warth v. Southern Ohio Coal Co., 60 F.3d 173, 19 BLR
2-265 (4th Cir. 1995) claimant contends that, the administrative law judge erred
in crediting employer's physicians who assumed that only clinical pneumoconiosis
can be disabling and ignored the definition of legal pneumoconiosis at 20 C.F.R.
§718.201 which includes any chronic pulmonary disease resulting in respiratory
... impairment ... substantially aggravated by dust exposure in coal mine
employment.  Claimant, however, cites no specific error.  Accordingly, we have no
basis upon which to review the administrative law judge's findings regarding this
issue. Fish v. Director, OWCP, 6 BLR 1-107 (1983).  Further, claimant
contends administrative law judge erred in incorporating by reference Judge
Patton's discussion of the medical evidence in pages 6-9 of his Decision and Order
at 2; Brief for claimant at 3-4, but claimant cites no specific error made by Judge
Patton. Fish, supra.

     Consequently, we vacate the administrative law judge's determinations that
claimant failed to demonstrate that the miner's total disability was due to
pneumoconiosis, see Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 19 BLR 2-86
(4th Cir. 1995); Robinson v. Pickands Mather and Co., 914 F.2d 35, 14 BLR
2-68 (4th Cir. 1990), and that his death was due to pneumoconiosis, see Shuff
v. Cedar Coal Co., 967 F.2d 977, 16 BLR 2-90 (4th Cir. 1992), cert.
denied, 113 S.Ct. 969 (1993), inasmuch as these findings are unsupported by
substantial evidence, and we remand this case for the administrative law judge to
reconsider and weigh all the evidence of record, and render separate, specific
findings of fact with respect to the aforementioned issues.  Moreover, as the miner
filed a petition for modification on his claim prior to his death, M-Director's
Exhibit 48, on remand the administrative law judge must consider whether
modification has been established in the miner's claim. See Jessee v. Director,
OWCP, 5 F.3d 723, 18 BLR 2-26 (4th Cir. 1993); Kingery v. Hunt Branch Coal
Co., 19 BLR 1-6-11 (1994)(en banc); Nataloni v. Director, OWCP,
17 BLR 1-82 (1993).

     Accordingly, the Decision and Order of the administrative law judge denying
benefits on both the miner's and survivor's claims is vacated and the case is
remanded for proceedings consistent with this opinion.

     SO ORDERED.



                                                                   
                         BETTY JEAN HALL, Chief
                         Administrative Appeals Judge



                                                                   
                         REGINA C. McGRANERY
                         Administrative Appeals Judge



                                                                   
                         MALCOLM D. NELSON, Acting
                         Administrative Appeals Judge

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Footnotes.
 1) Claimant, Janet R. Elkins, is the widow of Bobby L. Elkins, the
miner, who died on May 28, 1996.  Director's Exhibit 7 [survivor's exhibit (S)]. 
(Apparently, the exhibits for both claims were placed in the same file but were not
consolidated into one entire evidentiary record.  For purposes of this decision,
therefore, the exhibits associated with the miner's claim are noted by "M" and
those associated with the survivor's claim are noted by "S").  The miner filed his
application for benefits on May 12, 1987.  M-Director's Exhibit 1.  The widow filed
her application for benefits on July 24, 1996.  S-Director's Exhibit 1.  Both
claims are presently pending.
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 2) The administrative law judge, however, did not make separate
findings under Section 718.204(b) relative to the miner's claim and Section
718.205(c) relative to the survivor's claim, but rather combined his analyses of
the medical evidence for each issue.
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 3) Dr. Robinette treated the miner when he was hospitalized in 1995 up until the miner's death
in 1996 and wrote several hospital reports.  S-Director's Exhibit 19.  In a report dated November 18, 1996, Dr.
Robinette reviewed all of the medical records and opined that the miner "suffered as a result of complications from his
pulmonary disease and coal workers' pneumoconiosis with associated emphysematous change contributing significantly
to his demise."  S-Director's Exhibit 12. 
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 4) During the formal hearing held before Administrative Law Judge
Patton on April 24, 1989, the miner testified that he smoked at least one pack of
cigarettes per day for forty years.  M-Director's Exhibit 32 at 23-25.  The miner
additionally testified that he informed Dr. Prince that he had a seventy pack year
history.  M-Director's Exhibit 32 at 24.
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 5) A review of the record reveals that Drs. Fino and Scott were the
only two out of twelve physicians of record rendering opinions regarding total
disability causation who listed the miner's cigarette smoking history as one of the
factors contributing to his pulmonary impairment.  M-Director's Exhibit 29; S-Employer's Exhibit 4.
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