BRB No. 98-1535 BLA
ELLA MAE COOK )
(Widow of Alvin Jay Cook) )
)
Claimant-Respondent )
)
v. ) DATE ISSUED:08/24/1999 8/24/99
)
EASTERN ASSOCIATED COAL )
CORPORATION )
)
Employer-Petitioner )
)
DIRECTOR, OFFICE OF WORKERS' )
COMPENSATION PROGRAMS, UNITED )
STATES DEPARTMENT OF LABOR )
)
Party-in-Interest ) DECISION and ORDER
Appeal of the Decision and Order of Daniel F. Sutton, Administrative Law
Judge, United States Department of Labor.
Vincent J. Carroll, Richlands, Virginia, for claimant.
Mark E. Solomons (Arter & Hadden, LLP), Washington, D.C., for employer.
Before: HALL, Chief Administrative Appeals Judge, McGRANERY,
Administrative Appeals Judge, and NELSON, Acting Administrative Appeals
Judge.
PER CURIAM:
Employer appeals the Decision and Order (97-BLA-1387) of Administrative Law
Judge Daniel F. Sutton awarding benefits on a survivor's claim 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). The administrative law
judge, based on the parties' stipulation, credited the miner with at least fourteen
years of coal mine employment and adjudicated this survivor's claim pursuant to the
regulations contained in 20 C.F.R. Part 718. The administrative law judge found
the evidence sufficient to establish the existence of pneumoconiosis arising out
of coal mine employment pursuant to 20 C.F.R. §§718.202(a)(2) and
718.203(b).[1] The administrative law judge also
found the evidence sufficient to establish that the miner's death was due to
pneumoconiosis pursuant to 20 C.F.R. §718.205(c). Accordingly, the
administrative law judge awarded benefits. On appeal, employer contends that the
administrative law judge erred in finding the evidence sufficient to establish that
the miner's death was due to pneumoconiosis at 20 C.F.R. §718.205(c).
Claimant[2] responds, urging affirmance of the
administrative law judge's Decision and Order.[3]
The Director, Office of Workers' Compensation Programs, has declined to
participate in this appeal.[4]
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 applicable law, they are binding
upon this Board and may not be disturbed. 33 U.S.C. §921(b)(3), as
incorporated into the Act by 30 U.S.C. §932(a); O'Keeffe v. Smith, Hinchman
& Grylls Associates, Inc., 380 U.S. 359 (1965).
Inasmuch as the instant survivor's claim was filed after January 1, 1982,
claimant must establish that the miner's death was due to pneumoconiosis pursuant
to 20 C.F.R. §718.205(c).[5] See 20
C.F.R. §§718.1, 718.202, 718.203, 718.205(c); Neeley v. Director,
OWCP, 11 BLR 1-85 (1988). The United States Court of Appeals for the Fourth
Circuit, wherein jurisdiction of this case lies, adopted the standard whereby
pneumoconiosis will be considered a substantially contributing cause of the miner's
death if it actually hastened the miner's death. See Shuff v. Cedar Coal
Co., 967 F.2d 977, 16 BLR 2-90 (4th Cir. 1992), cert. denied, 113 S.Ct.
969 (1993).
Employer contends that the administrative law judge erred in finding the
evidence sufficient to establish that the miner's death was due to pneumoconiosis
at 20 C.F.R. §718.205(c). The administrative law judge considered the
opinions of Drs. Dy, Gaziano, Jones, Kleinerman, Maramba and Naeye. Whereas Drs.
Gaziano, Kleinerman and Naeye opined that pneumoconiosis was not a contributing
cause of the miner's death, Director's Exhibit 10; Employer's Exhibits 2, 3, 5, 6,
Drs. Maramba and Jones opined that pneumoconiosis was a contributing cause of the
miner's death,[6] Claimant's Exhibits 1, 2;
Employer's Exhibit 1. The death certificate, signed by Dr. Maramba, lists
cardiorespiratory arrest as the immediate cause of the miner's death, and
anthracosis, arteriosclerotic heart disease, left bundle branch block and
generalized pulmonary emphysema as other significant conditions contributing to the
miner's death. Director's Exhibit 8. Although Dr. Dy diagnosed anthracosis and
mild macular anthracotic pneumoconiosis, he did not opine that either of these
conditions contributed to the miner's death. Director's Exhibit 9. The
administrative law judge properly accorded greater weight to the opinions of Drs.
Jones and Maramba than to the contrary opinions of Drs. Gaziano, Kleinerman and
Naeye because he found the opinions of Drs. Jones and Maramba to be better reasoned
and documented.[7] See Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Fields v. Island
Creek Coal Co., 10 BLR 1-19 (1987); Lucostic v. United States Steel
Corp., 8 BLR 1-46 (1985); Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291
(1984). Thus, we reject employer's assertions that the administrative law judge
failed to provide a valid basis for according dispositive weight to the opinions
of Jones and Maramba,[8] and that the
administrative law judge mischaracterized the medical opinions of Drs. Kleinerman,
Maramba and Naeye. Moreover, we reject employer's assertions that the
administrative law judge substituted his opinion for that of the physicians, and
that the administrative law judge selectively analyzed the medical evidence of
record.
Employer, citing Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,
21 BLR 2-269 (4th Cir. 1997), asserts that the administrative law judge violated
the Administrative Procedure Act (APA), 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), by finding that the opinion of Dr. Maramba is entitled to
greater weight than the contrary opinions of record based on the impermissible
presumption that the opinion of a treating physician is entitled to great weight.
In Akers, the administrative law judge concluded that the claimant
established that pneumoconiosis contributed to the miner's death based on the
testimony of Drs. Bembalkar and Hamdan, who had examined or treated the miner for
only a month. The administrative law judge credited the testimony of Drs.
Bembalkar and Hamdan over the testimony of all other doctors for no reason except
that Drs. Bembalkar and Hamdan treated the miner. The United States Court of
Appeals for the Fourth Circuit observed that in reaching his conclusion, the
administrative law judge ignored entirely the qualifications of the respective
physicians, the explanation of their medical opinions, the documentation underlying
their medical judgments, and the sophistication and bases of their diagnoses.
Hence, the court held that the administrative law judge's invocation of a rule of
absolute deference to treating and examining physicians relieved the administrative
law judge of his statutory obligation to consider all of the relevant evidence of
record. Akers, 131 F.3d at 441, 21 BLR at 2-275-2-276.
In the case at hand, the administrative law judge did not mechanically accord
greater weight to the opinion of Dr. Maramba because of Dr. Maramba's status as the
miner's treating physician. To the contrary, the administrative law judge stated,
"I consider it particularly appropriate to rely on the opinion of the treating
physician, Dr. Maramba, in this case where the evidence reflects that the diagnoses
of pneumoconiosis, anthracosis and occupational chronic obstructive pulmonary
disease have been consistently made over the course of an extensive treatment
relationship and in the context of repeated hospitalizations for acute respiratory
problems." Decision and Order at 15. The administrative law judge observed that
"this is not a case where references to pneumoconiosis and occupational lung
disease first appear in a physician's post-mortem statements which might lead to
an inference that such findings are more likely influenced by an attempt to secure
benefits than the diagnosis and treatment of illness." Id. Moreover, the
administrative law judge reviewed the medical opinions of Drs. Gaziano, Kleinerman,
and Naeye in detail, noting the doctors' respective qualifications, the nature of
their findings, and the documentation underlying their conclusions. Decision and
Order at 5-11. Thus, since the administrative law judge, as trier of fact,
rationally accorded greater weight to the opinion of Dr. Maramba than to the
contrary opinions of Drs. Gaziano, Kleinerman and Naeye because Dr. Maramba was the
miner's treating physician, we reject employer's assertion that the administrative
law judge violated the APA by finding that the opinion of Dr. Maramba is entitled
to greater weight than the contrary opinions of record based on the impermissible
presumption that the opinion of a treating physician is entitled to great weight.
See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 21 BLR 2-323 (4th Cir.
1998); Akers, supra; Onderko v. Director, OWCP, 14 BLR 1-2 (1989).
Next, employer asserts that the administrative law judge violated the APA by
finding that the opinion of Dr. Dy is entitled to greater weight than the contrary
opinions of Drs. Kleinerman and Naeye based on the impermissible presumption that
the opinion of an autopsy prosector is entitled to great weight. We decline to
address employer's argument, inasmuch as the administrative law judge provided
valid alternate bases for discounting the opinions of Drs. Kleinerman and Naeye,
see Searls v. Southern Ohio Coal Co., 11 BLR 1-161 (1988); Kozele
v. Rochester and Pittsburgh Coal Co., 6 BLR 1-378 (1983), in that he accorded
greater weight to the opinions of Drs. Maramba and Jones than to the contrary
opinions of Drs. Kleinerman and Naeye because he found the opinions of Drs. Maramba
and Jones to be better reasoned and documented. See Clark, supra;
Fields, supra; Lucostic, supra; Fuller, supra. Thus, any
error by the administrative law judge in this regard would be harmless. See
Larioni v. Director, OWCP, 6 BLR 1-1276 (1984). The Board cannot reweigh the
evidence or substitute its inferences for those of the administrative law judge.
See Anderson v. Valley Camp of Utah, Inc., 12 BLR 1-111 (1989); Fagg v.
Amax Coal Co., 12 BLR 1-77 (1988); Worley v. Blue Diamond Coal Co., 12
BLR 1-20 (1988). We hold, therefore, that substantial evidence supports the
administrative law judge's finding that the evidence is sufficient to establish
that the miner's death was due to pneumoconiosis at 20 C.F.R. §718.205(c).
See Shuff, supra.
Accordingly, the administrative law judge's Decision and Order awarding
benefits is affirmed.
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)Although the administrative law judge found that collateral
estoppel applies to preclude employer from relitigating the issues of
pneumoconiosis and causal relationship of pneumoconiosis since they were decided
in the prior miner's claim, the administrative law judge nonetheless considered
these issues as properly before him in the survivor's claim. Decision and Order
at 12.
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2)Claimant is the widow of the miner, Alvin Jay Cook, who died
on May 18, 1996. Director's Exhibits 1, 8. The miner filed a claim on March 16,
1984. Director's Exhibit 29. On March 16, 1989, Administrative Law Judge Ben L.
O'Brien issued a Decision and Order awarding benefits, id., which the Board
affirmed, Cook v. Eastern Associated Coal Corp., BRB No. 91-1578 BLA (Dec.
28, 1992)(unpub.). The Board subsequently issued an Order, which denied employer's
request for reconsideration. Cook v. Eastern Associated Coal Corp., BRB No.
91-1578 BLA (Order)(Jan. 19, 1996)(unpub.). Further, the Board issued a Decision
and Order, which granted employer's second request for reconsideration, but denied
the relief requested and affirmed its Decision and Order affirming Judge O'Brien's
award of benefits. Cook v. Eastern Associated Coal Corp., BRB No. 91-1578
BLA (Dec. 16, 1997)(unpub.). We note that the award of benefits on the miner's
claim, which was filed after January 1, 1982, Director's Exhibit 10, does not
provide a basis for a derivative survivor's award under Section 401(a) of the Act,
30 U.S.C. §901(a), nor does it provide the benefit of the miner's filing date
to claimant under Section 422(l) of the Act, 30 U.S.C. §932(l). See Smith
v. Camco Mining Inc., 13 BLR 1-17 (1989). Claimant filed her survivor's claim
on June 11, 1996. Director's Exhibit 1.
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3)Employer filed a brief in reply to claimant's response brief,
which reiterates its prior contentions.
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4)Inasmuch as the administrative law judge's length of coal mine
employment finding and his findings pursuant to 20 C.F.R. §§718.202(a)(2)
and 718.203(b) are not challenged on appeal, we affirm these findings. See
Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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5)Section 718.205(c) provides, in pertinent part, that death will
be considered to be due to pneumoconiosis if any of the following criteria is met:
(1) Where competent medical evidence established that the miner's death
was due to pneumoconiosis, or
(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, or
(3) Where the presumption set forth at §718.304 is applicable.
20 C.F.R. §718.205(c).
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6)Dr. Maramba opined that the miner's occupational lung disease
was an important contributing factor in his death. Claimant's Exhibit 1;
Employer's Exhibit 1. Dr. Jones opined that the miner's death was hastened and/or
a result of his occupational exposure to coal dust. Claimant's Exhibit 2.
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7)The administrative law judge stated that "the consultative
report from Dr. Gaziano...consists of a form, on which Dr. Gaziano wrote 'yes' or
'no' next to a series of questions." Decision and Order at 14. The administrative
law judge observed that Dr. Gaziano's "only explanation of his answers is found in
comments inserted at the bottom of the form that [the miner's] autopsy revealed
pneumoconiosis, that an antemortem pulmonary function study was disabling and that
he died of a heart attack." Id. The administrative law judge determined
that "these brief comments do not adequately reflect what medical evidence Dr.
Gaziano relied upon, and they certainly provide no meaningful insight into his
rationale underlying his conclusions." Id. Further, the administrative law
judge stated that "Dr. Naeye failed to reconcile his statement that genetic
panlobular emphysema is much less apt to cause cor pulmonale as other types of
emphysema with his later acknowledgment that the autopsy showed that [the miner]
suffered from cor pulmonale." Id. at 15. The administrative law judge also
stated that the "excerpts from...[Dr. Naeye's] deposition transcript shows
(sic)...[that] his answers to simple questions on direct examination were
often convoluted and non-responsive, leading to a further erosion of the
credibility of his opinions." Id.( emphasis in original). In addition, the
administrative law judge stated that Dr. Kleinerman's "statement that genetic
centriacinar or panacinar emphysema can only be diagnosed by a blood test leaves
the reported fact that one of [the miner's] seven siblings had some unspecified
type of emphysema as the only objective inclination of a possible genetic
etiology." Id. The administrative law judge observed that "[t]here is no
evidence in the record that [the miner] ever underwent such a blood analysis."
Id. at 11 n.4. In contrast, the administrative law judge stated that "the
opinions expressed by the treating physician, Dr. Maramba, and the Claimant's
consulting pathologist, Dr. Jones,...[are] better reasoned and better supported by
the objective medical evidence." Id. at 15. The administrative law judge
observed that "Dr. Maramba's opinions were formed over the course of a long
treatment relationship which encompassed multiple hospitalizations, clinical
observations and diagnostic tests." Id. at 14. Additionally, the
administrative law judge observed that Dr. Jones's "unhesitating" conclusion with
respect to the cause of the miner's death was "[b]ased on the medical evidence
reviewed, including the unanimous pathological finding of diagnostic lesions (coal
dust macules) of coal workers' pneumoconiosis and [the miner's] clinical history
of repeated bouts of pulmonary insufficiency and chronic bronchitis attributed to
occupational lung disease by Dr. Maramba." Id. at 7.
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8)We reject employer's assertion that the administrative law
judge erred by failing to explain why he accorded greater weight to the opinion of
Dr. Jones than to the contrary opinions of Drs. Kleinerman and Naeye, in view of
the superior qualifications of Drs. Kleinerman and Naeye. An administrative law
judge is not required to defer to a doctor with superior qualifications. See
Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993); Clark v. Karst-Robbins Coal Co., 12 BLR 1-149 (1989)(en banc); Worley v. Blue
Diamond Coal Co., 12 BLR 1-20 (1988).
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NOTE: This is an UNPUBLISHED BLA Document.
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