BRB No 99-1283 BLA


NORMA L. SWETNAM
(Widow of JAMES L.
SWETNAM)

Claimant-Petitioner

v.

ARCH MINERAL CORPORATION

Employer-Respondent

DIRECTOR, OFFICE OF
WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR

Party-in-Interest
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DATE
ISSUED:10/31/2000 










DECISION and ORDER


Appeal of the Decision and Order Denying Benefits of Jeffrey Tureck,
Administrative Law Judge, United States Department of Labor.

David W. Whipple (Whipple Law Firm, P.C.), Kansas City, Missouri, for
claimant.

Catherine MacPherson (MacPherson Law Offices, LLC), Rawlins, Wyoming,
for employer.

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

PER CURIAM:
Claimant appeals the Decision and Order Denying Benefits (97-BLA-1213) of
Administrative Law Judge Jeffrey Tureck rendered 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). 
James L. Swetnam, the miner, died of complications following lung surgery on
June 26, 1995.  Prior to the hearing, the parties stipulated that the miner had
thirty-five years of coal mine employment and "[t]hat the miner has/had
pneumoconiosis (black lung) as defined by the Act and regulations."  Director's
Exhibit 26.  The administrative law judge accepted the parties' stipulations,
but found that claimant failed to establish that pneumoconiosis hastened the
miner's death pursuant to 20 C.F.R. §718.205(c)(2).  Accordingly, the
administrative law judge denied benefits.
On appeal, claimant contends that the administrative law judge failed to
determine whether pneumoconiosis as defined by the Act hastened the miner's
death, and erred in discounting the opinion of Dr. Thomas Beller, the miner's
treating physician, that pneumoconiosis contributed to the miner's death. 
Employer responds, urging affirmance, and the Director, Office of Workers'
Compensation Programs (the Director), has declined to participate in this
appeal.
The Board's scope of review is defined by statute.  The administrative law
judge's Decision and Order must be affirmed if it is supported by substantial
evidence, is rational, and is in accordance with law.  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).
To be entitled to survivor's benefits under the Act, claimant must
demonstrate by a preponderance of the evidence that the miner had pneumoconiosis
arising out of coal mine employment and that his death was due to
pneumoconiosis. See 20 C.F.R. §§718.3, 718.202, 718.203,
718.205; Trumbo v. Reading Anthracite Co., 17 BLR 1-85 (1993).  For
survivor's claims filed on or after January 1, 1982, death will be considered
due to pneumoconiosis if the evidence establishes that pneumoconiosis was a
substantially contributing cause or factor leading to the miner's death.  20
C.F.R. §718.205(c)(1), (2), (4).  The United States Court of Appeals for
the Tenth Circuit, within whose jurisdiction this case arises, has held that
pneumoconiosis is a substantially contributing cause of death if it hastens the
miner's death in any way. Northern Coal Co. v. Director, OWCP [Pickup],
100 F.3d 871, 874, 20 BLR 2-334, 2-340 (10th Cir. 1996).  Failure to establish
any one of these elements precludes entitlement. Anderson v. Valley Camp of
Utah, Inc., 12 BLR 1-111, 1-112 (1989); Trent v. Director, OWCP, 11
BLR 1-26, 1-27 (1987).
Claimant contends that the administrative law judge inquired only whether
"clinical" pneumoconiosis hastened death rather than whether "legal"
pneumoconiosis hastened death. See 20 C.F.R. §718.201.  As noted
above, the parties stipulated that the miner had pneumoconiosis as defined by
the Act.  Director's Exhibit 26.  Review of the record indicates that the
parties agreed that the miner had clinical "coal workers' pneumoconiosis" based
upon biopsy findings of coal macules, but they disagreed as to whether the
miner's other pulmonary conditions, including chronic obstructive pulmonary
disease (COPD) and emphysema, constituted pneumoconiosis under the Act.[1]   The administrative law judge did not clarify
the situation when he noted simply that, "the parties agree that the miner had
coal workers' pneumoconiosis arising out of his coal mine employment," and then
proceeded to consider death causation pursuant to Section 718.205(c)(2).
Nevertheless, based on our review of the record and the administrative law
judge's Decision and Order in light of the arguments raised, we conclude that
remand is not required in this case.  That is so because, in denying benefits,
the administrative law judge found that claimant's key evidence--Dr. Beller's
opinion--was insufficient to carry claimant's burden to establish that
pneumoconiosis hastened the miner's death.  The administrative law judge
accorded diminished weight to Dr. Beller's opinion that pneumoconiosis
contributed to the miner's death because he found Dr. Beller's opinion equivocal
and not well reasoned.
Review of the record indicates that Dr. Beller, who treated the miner
during his hospitalization for lung surgery to remove cancer, indicated that the
miner developed post-surgical complications leading to pneumonia, septic shock,
and death.  Director's Exhibit 25; Claimant's Exhibit 2.  Dr. Beller stated that
the miner's pre-existing chronic obstructive pulmonary disease (COPD),
emphysema, and "coal workers' pneumoconiosis" were all factors that compromised
the miner's ability to fight infection and recover from the surgery. Id. 
Dr. Beller believed that the primary cause of the miner's emphysema was
cigarette smoking, but stated that coal workers' pneumoconiosis "contribut[ed]
to" the miner's "emphysema and impaired lung function and therefore
substantially contributed to his death."  Claimant's Exhibit 2.
Dr. Beller also testified at the hearing, reiterating his opinion that
"coal workers' pneumoconiosis" was one factor that resulted in the miner's
inability to recover from lung surgery, and which therefore contributed to his
death.  Tr. at 41.  Dr. Beller admitted that he had not listed coal workers'
pneumoconiosis or pneumoconiosis on the miner's death certificate,[2]  but stated that he nevertheless considered it
a factor in the miner's death.  Tr. at 56, 78-79.  The administrative law judge
asked Dr. Beller to explain specifically how pneumoconiosis contributed to the
miner's death.  Dr. Beller responded that:
  It contributed to it in terms of him having significant dust
  within his lungs, some emphysematous change within his lungs
  associated with the coal dust exposure, it may
  have caused some aggravation of his obstructive airways
  disease, his COPD that was caused by smoking.  And in this
  way, it contributed to the severity of the obstructive
  airways disease that resulted in his subsequent development
  of the pneumonia and respiratory failure and death.
  Hearing Transcript at 80 (emphasis supplied).
The administrative law judge took into account Dr. Beller's treating status
and his Board-certification in Pulmonary Disease and Critical Care, but found it
significant that when asked to explain how pneumoconiosis hastened the miner's
death, Dr. Beller responded only that it "may" have aggravated the miner's
underlying COPD, which in turn led to pneumonia and respiratory failure.  The
administrative law judge permissibly found that this reasoning was equivocal and
speculative when compared to Dr. Jerome Kleinerman's opinion that the miner's
pneumoconiosis was too mild to have hastened his death due to post-operative
complications. See Justice v. Island Creek Coal Co., 11 BLR 1-91, 1-94
(1988).  Claimant asserts that the administrative law judge erred in so finding
because Dr. Kleinerman opined only that the miner's clinical "coal workers'
pneumoconiosis" was too mild to have hastened death.[3]   What claimant overlooks, however, is that the administrative law
judge considered Dr. Beller's view that the miner's COPD and emphysema were
either partially related to coal dust or may have been aggravated by "coal
workers' pneumoconiosis," and reduced the miner's ability to survive lung
surgery.  The administrative law judge was not persuaded by Dr. Beller's
reasoning, finding that, "even if Dr. Beller's opinion regarding the
contribution of the miner's pneumoconiosis to his . . . overall pulmonary
condition is correct, at best he is guessing that the pneumoconiosis contributed
to his death."  Decision and Order at 5.
An administrative law judge is not bound to accept the opinion or theory of
any given physician, but may weigh the medical evidence and draw his own
inferences.  American Coal Co. v. Benefits Review Board [Callor], 738
F.2d 387, 391, 6 BLR 2-81, 2-89 (10th Cir. 1984).  The administrative law judge
witnessed Dr. Beller's testimony and was "in a unique position to determine
credibility and weigh the evidence." Hansen v. Director, OWCP, 984 F.2d
364, 370, 17 BLR 2-48, 2-59 (10th Cir. 1993); see Anderson v. Valley Camp of
Utah, Inc., 12 BLR 1-111, 1-113 (1989); Fagg v. Amax Coal Co., 12 BLR
1-77, 1-79 (1988).  Because the administrative law judge has broad discretion to
determine the weight and credibility of the evidence, see Pickup, 100
F.3d at 873, 20 BLR at 2-338-39, he permissibly found Dr. Beller's opinion that
pneumoconiosis hastened the miner's death to be equivocal and not well reasoned. 
The administrative law judge found no other credible evidence that
pneumoconiosis hastened the miner's death.[4]  
Because the administrative law judge acted within his discretion in according
less weight to Dr. Beller's opinion, and substantial evidence supports the
administrative law judge's finding, we affirm the administrative law judge's
finding pursuant to Section 718.205(c)(2).
Because claimant has failed to establish that pneumoconiosis hastened the
miner's death pursuant to 20 C.F.R. §718.205(c)(2), a necessary element of
entitlement in a Part 718 survivor's claim, we affirm the denial of benefits.
See Trent, supra; Perry v. Director, OWCP, 9 BLR 1-1, 1-2
(1986)(en banc).
Accordingly, the administrative law judge's Decision and Order Denying
Benefits is affirmed.
SO ORDERED.




BETTY JEAN HALL, Chief
Administrative Appeals Judge




ROY P. SMITH
Administrative Appeals Judge




MALCOLM D. NELSON, Acting
Administrative Appeals Judge



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Footnotes.
 1) The parties agreed that the miner's lung cancer was due to
smoking, not coal dust exposure.
 Back to Text

 2) Dr. Beller listed the cause of death as pneumonia and
septic shock, due to COPD, due in turn to "post operative thoracotomy for lung
carcinoma."  Director's Exhibit 11.  Dr. Beller listed "hiatal hernia and reflux
esophagitis" as other significant conditions contributing to death.
Id.
 Back to Text

 3) Dr. Kleinerman believed that the miner's COPD, emphysema,
and bronchitis were related to smoking, not coal dust exposure.  Director's
Exhibit 23; Employer's Exhibit 1.
 Back to Text

 4) Claimant argues that the diagnoses of anthracosis in the
hospital pathology reports, and Dr. Kleinerman's findings of pseudo-asbestos
bodies and silicotic fibrosis in the lymph nodes prove that "legal"
pneumoconiosis hastened the miner's death.  However, no physician opined that
anthracosis, pseudo-asbestos bodies, or fibrotic lymph nodes played any role in
the miner's death.  In particular, Dr. Beller's explanation of death causation
was limited to coal workers' pneumoconiosis, COPD, and emphysema.  Additionally,
the administrative law judge considered Dr. Kennedy's brief, handwritten note
that "CWP" contributed to the miner's death, Director's Exhibit 14, but was
unpersuaded by what he found to be "Dr. Kennedy's scrawled and unexplained
notations . . . ."  Decision and Order at 3.  The administrative law judge
further noted that the miner's other hospital treating physicians did not
address whether pneumoconiosis hastened death, and that consulting physician Dr.
Rose did not diagnose pneumoconiosis.  Director's Exhibits 12, 21.
 Back to Text

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