2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-9-2009

Hill v. Director OWCP

Precedential or Non-Precedential: Precedential

Docket No. 06-4868

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"Hill v. Director OWCP" (2009). 2009 Decisions. Paper 1446.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1446
 Honorable A. Wallace Tashima, Senior Judge of the *

United States Court of Appeals for the Ninth Circuit, sitting by

designation. 

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 06-4868

_____________

PEGGY HILL, Widow of Charles W. Hill,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT OF

LABOR,

Respondent.

On Petition for Review of an Order of

the Benefits Review Board

United States Department of Labor

(BRB No. 06-0266 BLA)

Argued March 24, 2008

Before: McKEE, RENDELL, & TASHIMA Circuit Judges *
2

(Opinion Filed: April 9, 2009)

____________

George E. Mehalchick (ARGUED)

Lenahan & Dempsey, P.C. 

The Kane Building 

116 North Washington Avenue, Suite 400

Scranton, PA 18503

Counsel for Petitioner

Jonathan L. Snare

Allen H. Feldman

Patricia M. Nece

Kristen Lindberg (ARGUED)

United States Department of Labor

Office of the Solicitor

Suite N-2117

200 Constitution Avenue NW

Washington, D.C. 20210 

Counsels for Respondent

_____________

OPINION

_____________
3

McKEE, Circuit Judge

The widow of a deceased coal miner petitions for review

of a decision of the Benefits Review Board affirming an

Administrative Law Judge's denial of her claim for survivor's

benefits under the Black Lung Benefits Act, 30 U.S.C. §§

901-945. For the reasons that follow, we will grant the petition

for review, and remand for payment of her claim.

I. FACTS AND PROCEDURAL BACKGROUND

Charles Hill worked in coal mines in Northeastern

Pennsylvania for more than twenty years. During his

employment, he was responsible for physically breaking up coal

with a pick and shovel and loading it into mine cars and shaker

chutes. Hill was also involved in mine drilling, tamping

explosives and blasting operations.

Hill first applied for Black Lung benefits on April 18,

1980. The Department of Labor administratively denied the
4

claim and thereafter denied two additional claims that Hill filed

in June of 1984 and September of 1991. Hill applied for

benefits a fourth time on November 3, 1993 and was denied

once again. That denial was affirmed after a formal hearing, but

the Benefits Review Board reversed the ALJ’s decision denying

benefits. On remand, the ALJ finally awarded benefits dating

back to November 1993, and augmented the benefits to include

Hill’s wife and son who were listed as dependents. In awarding

benefits the ALJ concluded that: (1) the record sufficiently

established the existence of pneumoconiosis, (2) a causal

relationship existed between the pneumoconiosis and 9 1⁄2 years

of documented coal mine employment, and (3) Hill suffered

total disability due to pneumoconiosis. 

Hill died on August 7, 2004, and his widow, Peggy Hill,

timely filed for survivor’s benefits under the Black Lung

Benefits Act. That claim was denied by the Department of
5

Labor on February 15, 2005, but Mrs. Hill appealed and

received a hearing before an ALJ. 

At the hearing before the ALJ, the parties stipulated that

Hill had contracted pneumoconiosis from working in the mines

based on his receipt of Black Lung benefits during his lifetime.

Accordingly, the only issue facing the ALJ was whether Hill's

death had been caused by pneumoconiosis as required for

survivor's benefits under 20 C.F.R. § 718.250(c). The ALJ

heard testimony from Mrs. Hill and received the deposition of

Dr. Kevin Carey. Dr. Carey had treated Charles Hill at WilkesBarre General Hospital and at Lakeside Nursing Home, where

Mr. Hill had died just a few days after being transferred there

from Wilkes-Barre General.

The ALJ denied Hill’s claim, and that denial was

affirmed by the Benefits Review Board. The Board concluded

that Dr. Carey had not made a finding of clinical
6

pneumoconiosis and “did not state that his finding of chronic

obstructive pulmonary disease/chronic lung disease is related to

coal mine employment (legal pneumoconiosis).” BRB Decision

at 5. Thus, the Board agreed with the ALJ’s conclusion that the

evidence was insufficient to establish death due to

pneumoconiosis. 

This petition for review followed. 

II. THE EVIDENCE BEFORE THE ALJ 

During her testimony before the ALJ, Mrs. Hill

confirmed that her husband had been experiencing shortness of

breath and could not go up a flight of stairs without taking a

break. She also testified that Mr. Hill had a severe, productive

cough and that he had difficulty sleeping because of his labored

breathing. Mrs. Hill confirmed that Mr. Hill had these

symptoms before he had been admitted to Wilkes-Barre General

Hospital. Hr’g Tr. at 9-10.
7

Dr. Carey operates a family care practice in Noxen,

Pennsylvania and is board certified in family medicine. His

practice includes patients with pulmonary disease due to

occupational exposures. Dr. Carey began treating Mr. Hill when

Hill was hospitalized at Wilkes-Barre General, and continued

after Hill’s transfer to Lakeside. Although Dr. Carey’s

colleague, Dr. Gwen Galasso, was Hill’s primary physician, Dr.

Carey assumed responsibility for Hill’s care after Hill went to

the nursing home. Dr. Carey’s testimony was based on his own

examinations of Hill, as well as Dr. Galasso’s notes and the

notes of several other specialists at the hospital and the nursing

home. Dep. Tr. at 5-9. 

The vast majority of professional observations of Hill,

and the conclusions of a variety of physicians who treated him,

identified symptoms of pneumoconiosis and the effects of

chronic obstructive pulmonary disease (“COPD”). On July 16,
Atelectasis is the collapse of part or all of a lung. It is 1

caused by a blockage of the air passages (bronchus or bronchioles)

or by pressure on the lung. U.S. Nat. Library of Medicine and Nat.

Inst. of Health at

http://www.nlm.nih.gov/medlineplus/ency/article/000065.htm.

8

2004, the day Hill was admitted to the emergency room at

Wilkes-Barre General, Dr. Galasso noted the presence of

decreased breath sounds and referenced a chest x-ray that

showed bibasilar atelectasis. Eight of the ten physicians who 1

examined Hill during his three-week stay at the hospital made

similar observations. For example, when Hill was admitted to

the hospital, Dr. David Dalessandro noted scattered rhonchi in

Hill’s lungs. Four days later, Dr. Patrick Degennaro observed

“prominent markings” on the lungs and “abnormal opacities in

the bases.” App. at 100. Dr. Wenlin Fan confirmed a reduction

in lung capacity on a chest x-ray completed on August 2, 2004.

Two days later, Dr. Strasser performed a chest x-ray and noted:
 Two physicians, Dr. Sanjeev Garg and Dr. Martin Fried, 2

indicated that Hill’s lungs were clear to auscultation on July 17,

2004 and July 28, 2004 respectively. Dr. Decker, another

consulting physician, indicated that one of Hill’s chest x-rays was

free of infiltrate, but he observed decreased breath sounds in the

same examination. His notations therefore corroborate that Hill’s

respiratory system was compromised. Moreover, the notations of

these doctors are consistent with observations we have made about

pneumoconiosis. We have explained that it is a persistent and

progressive disease and although “symptoms may, on occasion,

subside, the condition itself does not improve . . . .” Labelle

Processing Co. v. Swarrow, 72 F.3d 308, 314 (3d Cir. 1995). 

9

“[h]azy density is present in both mid-lung fields.” App. at 97.

Finally, Dr. Carey testified that upon Hill’s arrival at Lakeside

on August 5, Hill had decreased breath sounds, some chronic

rhonchi, and some coarse rhonchi, all related to a chronic lung

disease. Dep. Tr. at 5. 

2

Hill died at 4:15 a.m. on August 7, 2004, two days after

being transferred to the nursing home from Wilkes-Barre

General. Dr. Carey completed the death certificate and listed

the primary cause of death as cardiopulmonary arrest. He also
10

noted other contributing causes of death including: renal failure,

arteriosclerotic cardiovascular disease and anemia. During his

deposition, Dr. Carey explained how Hill’s lung disease

contributed to his death. Dr. Carey indicated that each of the

symptoms listed on Hill’s death certificate—respiratory arrest,

renal failure, arteriosclerotic cardiovascular disease,

anemia—would all be worse because of the lower volumes of

oxygen that resulted from Hill’s pulmonary disease. 

On cross-examination, Dr. Carey further explained that

hyponatremia–a deficiency of sodium in the blood–is often seen

in people with chronic lung disease. He also confirmed that no

medical records were available for Hill for the two days prior to

his death on August 7, 2004, after he was transferred to the

nursing home. Dr. Carey last saw Hill on August 5, 2004.

In opposing Mrs. Hill’s claim, the Director offered a

two-page report from Dr. Michael Sherman. His report was
11

based solely on his review of records he had received from the

Department of Labor. Those records included: Hill's death

certificate, records from Lakeside Nursing Home, and records

provided by the Wyoming Valley Health Care System from

Wilkes-Barre General Hospital. The latter included records of

Hill’s three-week stay at Wilkes-Barre General. Based on his

examination of those records, Dr. Sherman stated “[t]here is no

note in the record of any shortness of breath, dyspnea, or

respiratory distress.” App. at 54. He therefore concluded:

1. The cause of death is not clear from the record.

Clearly Mr. Hill was in poor condition. He was severely

malnourished; an albumin of less than 2.0 is associated

with immune compromise and he was thus likely to have

difficulty warding off infection. He had new onset of

atrial fibrillation and thus may have had underlying

coronary artery disease; he was also at risk for

developing systemic emboli from the atrial fibrillation.

There are no records after 8/5/04, so the circumstances

immediately surrounding Mr. Hill's death two days later

are not known. 

2. However, I find no evidence that death was
12

caused by pneumoconiosis or that pneumoconiosis

contributed significantly to Mr. Hill's death. There is no

evidence in the record to suggest that Mr. Hill had

dyspnea, respiratory distress, or respiratory failure when

he arrived at the nursing home. Indeed, he was felt to be

stable on the day of admission. Death appears to be

related to a general level of severe impairment from

dementia and malnutrition, and possibly due to his heart

disease. However, I do not find evidence for a

contribution from COPD or from pneumoconiosis. 

Id. (emphasis added).

III. THE ALJ’S DECISION 

In denying Mrs. Hill’s claim, the ALJ noted the

immediate causes of death listed on the death certificate, which

included COPD, but focused on the relative weight he would

assign to Dr. Sherman’s report as opposed to the deposition

testimony of Dr. Carey. The ALJ offered the following

explanation for completely dismissing Dr. Carey’s testimony:

[Dr. Carey] did not state that pneumoconiosis contributed

to or hastened the miner’s death. Rather he stated only

that the miner’s “chronic lung disease” or “chronic

obstructive pulmonary disease” contributed to his death.
13

Indeed, in neither the death certificate nor his testimony

did Dr. Carey state that pneumoconiosis or a pulmonary

disease related to coal mine employment contributed to

or hastened the miner’s death.

ALJ’s Decision at 5-6. 

The ALJ also criticized Dr. Carey for speaking only of

how “‘[s]omeone with a chronic lung disease or chronic

obstructive pulmonary disease’ was affected by such a

condition.” Id. at 6 (emphasis in original). The ALJ’s concern

regarding the implication of Dr. Carey’s testimony is evidenced

by the ALJ’s statement that Dr. Carey’s opinion was

“tantamount to stating that anyone and everyone who suffers

from a chronic lung disease or COPD and dies [could claim that]

those conditions are always substantial contributors to or

hasteners of death.” Id. The ALJ, therefore, gave Dr. Carey’s

opinion no weight. 

Rather, the ALJ relied upon Dr. Sherman’s conclusion
14

that there was no evidence of pneumoconiosis contributing to

Hill’s death. The ALJ found the evidence of decreased breath

sounds, scattered rhonchi, and bilateral crackles, after Hill’s

hospital stay and prior to his death, insufficient to support Dr.

Carey’s conclusion. Finally, the ALJ added that even if Dr.

Carey’s opinion were entitled to some consideration, it was

outweighed by the superior opinion and qualifications of Dr.

Sherman. Id. 

The Board affirmed the ALJ’s decision, finding that Dr.

Carey did not establish legal or clinical pneumoconiosis and that

his medical opinion was properly discredited. BRB Decision at

5. The Board also emphasized Dr. Sherman’s determination that

the cause of death is unclear due to the absence of records two

days prior to Hill’s death. Id. at 2. 

IV. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review the Board's determination

pursuant to 33 U.S.C. § 921(c). The Board is bound by the

ALJ's findings of fact if they are supported by substantial
15

evidence. Our review of the Board's decision is limited to a

“determination of whether an error of law has been committed

and whether the Board has adhered to its scope of review.”

Kowalchick v. Director, OWCP, 893 F.2d 615, 619 (3d Cir.

1990)(citations omitted).

In reviewing the Board’s decision, we must

independently review the record and decide whether the ALJ's

findings are rational, consistent with applicable law and

supported by substantial evidence on the record considered as a

whole. See Mancia v. Director, OWCP, 130 F.3d 579, 584 (3d

Cir.1997) (citing Kowalchick, 893 F.2d at 619). Substantial

evidence has been defined as “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Id. We exercise plenary review over the ALJ's

legal conclusions that were adopted by the Board. See Soubik

v. Director, OWCP, 366 F.3d 226, 233 (3d Cir. 2004)(citations

omitted). 

V. DISCUSSION
 “Pneumoconiosis, also known as black lung disease or 3

anthracosis, is a chronic dust disease of the lung and its sequelae,

including respiratory and pulmonary impairments, arising out of

coal mine employment. ‘Pneumoconiosis’ includes both clinical

and legal pneumoconiosis, which include, but are not limited to

anthracosilicosis, anthracosis, anthrosilicosis ..., [and] any chronic

restrictive or obstructive pulmonary disease arising out of coal

mine employment.’” Balsavage v. Director, OWCP, 295 F.3d 390,

393 n.2 (3d Cir. 2002) (citations omitted). 

16

“The Black Lung Benefits Act (Act) provides . . . that

benefits are to be provided ‘to the surviving dependents of

miners whose death was due to [pneumoconiosis.]’” Lukosevicz

v. Director, OWCP, 888 F.2d 1001, 1003 (3d Cir. 1989)

(brackets in original) (citing 30 U.S.C. § 901(a)). However, the 3

Act does not define when a miner’s death will be considered

“due to” pneumoconiosis. Rather, Congress left that definition

to the Secretary of Labor who “redelegated all his powers under

the Act to the Director [of the Office of Workers' Compensation

Programs].” Id. 

In Lukosevicz, we upheld the Director’s determination

that a miner’s death would be “due to” pneumoconiosis if that

disease “actually hastens death [or] is a substantially
 Pursuant to the regulation applicable to Mrs. Hill’s claim, 4

death is considered due to pneumoconiosis if any of the following

criteria is met: 

17

contributing cause of death . . . .” Id. at 1006. There, the ALJ

had denied a claim for survivor’s benefits because the

immediate cause of death was pancreatic carcinoma. The ALJ

concluded that even though the death certificate listed

pulmonary emphysema “as an ‘other significant condition,’” the

survivor had not satisfied her burden of proving that the miner’s

death was “due to,” pneumoconiosis. Id. at 1003. The surviving

spouse and the Director both petitioned for review of the ruling

arguing that survivor benefits were appropriate if the miner’s

pneumoconiosis hastened his death, even if it was not the direct

cause. Id. We agreed.

We held that the fact that the immediate cause of the

miner’s death was pancreatic cancer was irrelevant under 20

C.F.R. § 718.20(c), because the uncontradicted evidence showed

that pneumoconiosis contributed to the miner’s death, “albeit

briefly.” Id. at 1005 (italics in original). The miner’s treating 4
(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 [arising from medical evidence of

complicated pneumoconiosis] set forth at § 718.304 is applicable.

4) However, survivors are not eligible for benefits where the miner's

death was caused by a traumatic injury or a principal cause of death

was a medical condition not related to pneumoconiosis, unless the

evidence establishes that pneumoconiosis was a substantially

contributing cause of death.

20 C.F.R. § 718.205(c).

 We actually remanded to the Board with instructions to 5

vacate the order denying benefits and instructed that the Board

further remand to the Deputy Commissioner of the Civil Division

of Coal Mine Worker’s Compensation, Office of Workers’

Compensation Programs for immediate payment of benefits. 

Lukosevicz, 888 F.2d at 1004.

18

physician had testified that the miner’s lungs “show[ed]

pulmonary anthracosis . . . [and in the doctor’s opinion] this

condition shortened [the miner’s] life.” Lukosevicz, 888 F.2d at

1004. We held that that was enough to establish that the miner’s

death was “due to” the underlying pneumoconiosis, and we

therefore remanded for immediate payment of benefits. Id. at 5

1006. Hill’s case is very similar. 

As the Director correctly summarizes in its brief, the ALJ
19

rejected Dr. Carey’s conclusion that Mr. Hill’s death was due to

pneumoconiosis for two reasons. “[F]irst,

the ALJ believed that Dr. Carey “failed to diagnose a coal-mineemployment-related lung disease; and second, he failed to

adequately explain how the miner’s lung disease contributed to

or hastened death.” Respondent’s Br. at 10 n.6.. Although the

Director only defends the second justification now, both of the

ALJ’s justifications for denying this claim are extremely

troubling and perplexing. 

A. Legal and Clinical Definitions of Pneumoconiosis 

First, there is absolutely no issue here that Mr. Hill

suffered from pneumoconiosis, nor is there any dispute that that

condition resulted from his employment in mines. The ALJ’s

opinion even notes that “[T]he parties stipulated that the miner,

Charles W. Hill, had a coal mine employment history of 9 1⁄2

years and that Claimant established that the miner had

pneumoconiosis arising out of his coal mine employment.”

App. at 28. Moreover, Mr. Hill’s breathing difficulties and the

changes in his respiratory system were documented by the

testimony of Mrs. Hill, as well as medical records and the

deposition testimony of Dr. Carey as summarized above.
20

For reasons that are neither apparent, nor explainable, the

ALJ stressed that Dr. Carey did not specifically state that

“pneumoconiosis” contributed to or hastened Hill’s death.

Instead, Dr. Carey used the terms “chronic lung disease” or

“chronic obstructive pulmonary disease.” That is a distinction

without a difference; it ignores the definition of

“pneumoconiosis,” codified in the applicable regulations. 

As we noted earlier, pneumoconiosis is defined as “a

chronic dust disease of the lung and its sequelae, including

respiratory and pulmonary impairments, arising out of coal mine

employment.” 20 C.F.R. § 718.201(a). “The legal definition of

pneumoconiosis (i.e. any lung disease that is significantly

related to, or substantially aggravated by, dust exposure in coal

mine employment) is much broader than the medical definition,

which only encompasses lung diseases caused by fibrotic

reaction of lung tissue to inhaled dust.” Labelle, 72 F.3d at 312

(emphasis added). The legal definition therefore includes “any

chronic restrictive or obstructive pulmonary disease,” arising out

of coal mine employment. 20 C.F.R. § 718.201(a). Dr. Carey’s

description of the condition that caused Mr. Hill’s death falls
 The legal definition of pneumoconiosis is broad and 6

“includes but is not limited to, coal workers' pneumoconiosis,

anthracosilicosis, anthracosis, anthrosilicosis, massive pulmonary

fibrosis, progressive massive fibrosis, silicosis or

silicotuberculosis, arising out of coal mine employment.” Labelle,

72 F.3d at 315 (citing 20 C.F.R. § 718.201). In fact, even

“[c]hronic bronchitis, as a pulmonary disease, falls within the legal

definition of pneumoconiosis.” Id.

21

squarely within the regulatory definition of pneumoconiosis.6

Rather than seizing upon a semantic technicality to reject Dr.

Carey’s explanation of the causes of Hill’s death, the ALJ

should have recognized that Dr. Carey was stating that

“pneumoconiosis,” as defined under the Black Lung Benefits

Act, was a cause of, and a hastening factor in, his death.

The Board’s order affirming the ALJ’s decision is

equally as puzzling with respect to its treatment of the legal and

clinical definitions of pneumoconiosis. The Board stated the

following in explaining why Dr. Carey’s opinion was properly

dismissed by the ALJ:

Dr. Carey did not make a finding of clinical

pneumoconiosis, and as he did not state that his

finding of chronic obstructive pulmonary

disease/chronic lung disease is related to coal

mine employment (legal pneumoconiosis), the

administrative law judge properly found the

opinion insufficient to establish that the miner’s

death was due to pneumoconiosis.
22

BRB Decision at 5. However, there is absolutely no issue here

about whether Hill’s pneumoconiosis “is related to coal mine

employment.” Hill had been receiving benefits under the Black

Lung Benefits Act for nearly ten years before he died, and even

if he had not received those benefits, the causal relationship

between his “coal mine employment” and pneumoconiosis was

stipulated to before the ALJ. Dr. Carey may, or may not, have

been in a position to render an opinion about the cause of Hill’s

pneumoconiosis, but it should have been obvious that he did not

have to. The issue here is what caused Hill’s death, not what

caused his pneumoconiosis.

B. Dr. Carey’s Deposition Testimony

We also find the ALJ's decision to assign no probative

value to Dr. Carey's opinion because of the doctor's conditional

response to a hypothetical question to be severely flawed. The

ALJ was particularly dismissive of the following testimony

during Dr. Carey’s deposition: 

Q. Well, how are they affected, in what sense, with

respect to comparing him to someone who didn’t

have the lung disease but with all of those

problems? 

A. Someone with a chronic lung disease or chronic

obstructive pulmonary disease is going to have
23

lower volumes of oxygen that makes everything

work harder. His heart’s going to work harder. If

this is occupational exposure that has caused this

chronic obstructive pulmonary disease it’s also

going to cause his arteriosclerotic, to an extent,

his arteriosclerotic cardiovascular disease. His

renal failure, if your kidneys aren’t getting enough

oxygen, that tends to push towards renal failure.

The ALJ indicated, as cited above, that this “was tantamount to

stating that with anyone and everyone who suffers from a chonic

lung disease or COPD and dies, those conditions are always

substantial contributors to or hasteners of death.” App. at 32.

However, Dr. Carey was asked by counsel to draw a broader

comparison between Hill and a person without any pulmonary

disease. His response relies upon the chronic lung disease

already stipulated to by both parties and evidenced in chest xrays. Dr. Carey connected these facts to the symptoms that Hill

manifested prior to his death. His statement is not a general

characterization; it is directly related to Hill’s condition, and

responsive to the question he was asked. 

Moreover, we have previously cautioned that an expert's

testimony with respect to the pulmonary disease of a miner must

be examined in light of the all of the testimony offered, rather

than simply by way of selective quotes. See Balsavage, 295
24

F.3d at 396 ("[S]tatements must be viewed in context–both as

responses on cross-examination to general questions and against

the backdrop of repeated assertions that pneumoconiosis

contributed to the [m]iner's death."); cf. Mancia, 130 F.3d at 590

(noting valid use of a hypothetical question and answer in

assessing whether a miner's death was caused by underlying

lung disease). In Balsavage, the ALJ rejected an expert's

testimony because of his use of the word "could" when

discussing whether pneumoconiosis was a factor in the

development of coronary artery disease and atrial fibrillation.

295 F.3d at 396. We rejected such parsing, especially when

viewed against the expert's unequivocal testimony about the

contributory role of pulmonary disease to his patient's death. 

Dr. Carey firmly asserted that the other factors related to

Hill's death would not have been as severe, but for the presence

of pulmonary disease. Nothing on this record, including the

report of Dr. Sherman undermines, Dr. Carey’s testimony about

the effect a compromised respiratory system has on one’s health

and resilience. To the extent that Dr. Carey’s testimony was at

all conditional, the meaning is unmistakable when viewed in

context. See Mancia, 130 F.3d at 593 (“The ALJ was not free
25

to selectively credit testimony merely because it supports a

particular conclusion while ignoring all evidence contrary to that

conclusion.”). 

More significantly, however, we are at a loss to

understand why the ALJ was so troubled by Dr. Carey’s

testimony about the effect of a compromised respiratory system

on the human body. One need not be board certified in

pulmonology nor have an advanced degree in anatomy to

appreciate the impact that low oxygen levels in the blood can

have on the human body. Common sense suggests that if the

heart and lungs do not have a sufficient supply of oxygen to

function properly, the result could surely include organ failure

as well as other complications. 

Here, Dr. Sherman’s testimony even confirmed that Mr.

Hill was malnourished when admitted to the nursing home. It

is difficult to conclude that an inadequate oxygen supply in the

blood because of a compromised respiratory system would not

hasten the demise of any patient in that condition. That is what

Dr. Carey said, and that is the natural consequence of the simple

biological fact that our bodies need an adequate supply of

oxygen for organs to function properly. If there are concerns
 Statistics suggest that such a concern by the ALJ is 7

unwarranted. Miners and their widows who attempt to claim Black

Lung benefits meet with little success. See Office of Workers’

Compensation Programs, Annual Report to Congress, Fiscal Year

2003, at 23 (noting that the approval rate for initial review of

claims for Black Lung benefits is 7.8%). 

26

that it becomes too easy to establish that a miner’s death was

“due to” pneumoconiosis given that causation, those concerns

must be addressed by amending the Act or the regulations

promulgated under it. They can not be addressed by denying 7

claimants like Mrs. Hill benefits they are entitled to when a

spouse has pneumoconiosis as a result of working in mines, and

that pneumoconiosis hastens his death in some way.

C. Dr. Sherman’s Report 

As we have noted, Dr. Sherman’s report does not

contradict Dr. Carey’s testimony about the impact of a

compromised respiratory system. Rather, the ALJ interpreted

Dr. Sherman as concluding that there was “insufficient

[evidence] . . . to support a finding that pneumoconiosis

contributed significantly to the miner’s death.” ALJ’s Decision

at 6. The ALJ’s use of the phrase “contributed significantly”

causes us to wonder if he was aware of our discussion in

Lukosevicz. Under our precedent, the law does not condition
27

survivor benefits only upon proof that pneumoconiosis was a

significant or substantial contribution to the miner’s death;

rather, the claimant’s burden is also satisfied by proving that the

underlying pneumoconiosis hastened the miner’s death, even if

only slightly. Thus, pneumoconiosis need not be the sole or

even primary cause of a miner's death; it need only be a

contributing factor. 

The ALJ credited Dr. Sherman’s report over Dr. Carey’s

testimony because of Dr. Sherman’s purportedly superior

credentials and qualifications, as well as the ALJ’s belief that

Dr. Carey did not qualify as a treating physician under 20 C.F.R.

§ 718.104. Though both findings are dubious here, Dr.

Sherman’s opinion must still be supported by adequate

evidence. See e.g., Lango v. Director, OWCP, 104 F.3d 573,

577 (3d Cir. 1997) (“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.”);

Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir.

1986) (holding that an ALJ should reject any medical opinion

that is insufficiently reasoned or reaches a conclusion contrary

to objective clinical evidence). Dr. Sherman’s report falls short
 We note, as cited in the Director’s brief, that Wilkes-Barre

8

General indicated that Hill was discharged in stable condition to

Lakeside. App. at 114. However, an indication that a patient is in

stable enough condition to be transferred to another facility does

not show that his medical problems had somehow reversed course

or were resolved entirely.

28

of that standard, and does not merit the determinative weight

that the ALJ gave it.

Despite the uncontradicted evidence of Hill’s history of

pneumoconiosis and the uncontradicted evidence of respiratory

problems he was experiencing just days before his death, Dr.

Sherman stated with certainty that “there is no evidence of a

contribution by COPD or pneumoconiosis.” ALJ’s Decision at

5 (emphasis added). That statement is simply inconsistent with

the medical records, Hill’s medical history, and x-rays showing

Mr. Hill’s compromised pulmonary system. Every physician

who examined Hill within a month of his death, and every

medical examination and finding, confirmed his pulmonary

disease, decreased breath sounds, and respiratory difficulties.

Breathing problems, decreased lung sounds and other

complications consistent with COPD were documented during

Hill’s hospitalization immediately preceding his transfer to

Lakeside Nursing Home. It is undisputed that a medical 8
 “Rhonchi,” are defined as “added sound[s] occurring 9

during inspiration or expiration caused by air passing through

bronchi that are narrowed by inflammation or the presence of

mucus in the lumen” and inhere decreased lung capacity. 

Stedman's Medical Dictionary 1235 (5th Lawyer's ed. 1982). 

Other courts have noted that the presence of rhonchi in the lung

fields is consistent with findings documenting pneumoconiosis. 

See, e.g., Peerless Eagle Coal Co. v. Taylor, 107 F.3d 867, 867

(4th Cir. 1997); Freeman United Coal Min. Co. v. Hudson, 105

F.3d 660, 661 (7th Cir. 1997); Thorn v. Itmann Coal Co., 3 F.3d

713, 715 (4th Cir. 1993). 

29

examination on August 5th disclosed decreased breath sounds

and “chronic rhonchi.” 

9

It is worth repeating that in Lukosevicz, supra, we held

that the miner’s death was “due to” pneumoconiosis even

though the actual cause of death was pancreatic cancer rather

than pneumoconiosis. We explained that pneumoconiosis need

only have some identifiable effect on the miner’s ability to live.

Despite Dr. Sherman’s report, and the ALJ’s reliance on it, this

record establishes that decreased levels of oxygen in the blood

due at least in part to pneumoconiosis, hastened Hill’s death.

D. Availability of Records Near Time of Death

Dr. Sherman, the ALJ and the Board all highlight the

absence of any medical records for the two days prior to Hill’s

death, and use that to support the conclusion that the record is

inconclusive as to whether Mr. Hill died due to pneumoconiosis.
30

However, such analysis is inconsistent with the parallel

regulatory scheme provided by the Social Security

Administration. 20 C.F.R. § 410.462(b) states:

Where the evidence establishes that a deceased

miner suffered from pneumoconiosis or a

respirable disease and death may have been due to

multiple causes, death will be found due to

pneumoconiosis if it is not medically feasible to

distinguish which disease caused death or

specifically how much each disease contributed to

causing death. 

Moreover, given the uncontradicted evidence on this record, we

can think of nothing that suggests either that some mysterious

force intervened or that Mr. Hill’s pneumoconiosis underwent

a miraculous reversal and his blood oxygen levels returned to

normal right before he died. Here, medical records from a mere

five days before Hill’s death document the complications of his

pneumoconiosis. Dr. Sherman’s report does not offer a credible

theory that would explain how Mr. Hill would have been

somehow able to shake off the effect of pneumoconiosis in the

two days before he died so that his respiratory arrest, renal

failure, arteriosclerotic cardiovascular disease, and anemia were

somehow not exacerbated by the respiratory disease that he had

suffered from for so many years prior to his death. We are
31

simply unable to imagine anything that could have been revealed

by a medical examination during the final 48 hours of Mr. Hill’s

life that would have undermined the force of Dr. Carey’s

testimony, or the validity his conclusions, and neither the ALJ

nor the Board suggests anything that could have had that effect.

“[C]ourts have long acknowledged that pneumoconiosis

is a progressive irreversible disease .. . .” Labelle, 72 F.3d at

315. Dr. Sherman’s report in no way undermines Dr. Carey’s

opinion that low oxygen levels in the blood associated with

pneumoconiosis or COPD can compromise every system in the

body. Yet, both the ALJ and Dr. Sherman were reluctant to

conclude that Hill’s death was due to pneumoconiosis because

no one saw him on August 7, the day he died, or within the two

days before he passed away. The implication that such records

are mandatory for the receipt of benefits places an unfair and

inappropriate burden on any petitioner or claimant.

Regrettably, the result here is more consistent with an

attempt to justify denying benefits than with a neutral inquiry

into whether the record establishes eligibility for benefits. The

ALJ’s focus on the time immediately preceding death would

raise insurmountable obstacles to an eligible survivor,
 Our concern over the denial of benefits here is not 10

mitigated by Dr. Sherman’s purportedly “superior credentials.” 

As we noted above, Dr. Sherman does not contest Dr. Carey’s

assessment of Hill’s respiratory problems, only whether Hill’s

death was due to his pneumoconiosis, and the record raises

concerns about whether he understood what is meant by that

phrase. See Balsavage, 295 F.3d at 397.

32

conditioning determination of benefits not on a miner’s medical

history, but on the timing of doctors’ visits. The law simply

does not require a miner with a respiratory system that has been

ravaged by mine-related pneumoconiosis to hang on until a

physician can document his last moment of life so that the

survivor will be able to document that his impaired respiratory

system hastened his death.10

VI. CONCLUSION

For all the reasons set forth above, we hold that the ALJ’s

denial of Mrs. Hill’s request for survivor’s benefits under the

Black Lung Benefits Act and the Board’s subsequent affirmance

of that decision are not supported by substantial evidence in the

record. In her brief, Mrs. Hill “urges this Court not to remand

the matter for further consideration. Given the foregone

conclusion, based on the proper analysis of the evidence of

record, . . . this Court should issue an Order vacating the denial

of benefits and substituting an award of benefits.” (Petitioner’s
33

Br. at 13.) In light of the facts presented, we agree. 

There is no issue of credibility here, nor is there any

dispute that Hill suffered from work related pneumoconiosis or

the systemic effect of that progressive disease. The conflicting

inferences introduced by the ALJ are conclusively resolved by

correct application of the regulatory scheme, as well as our

precedent, leaving only one conclusion possible—that

pneumoconiosis hastened Hill’s death. See Mancia, 130 F.3d at

579 (citing Kowalchick, 893 F.2d at 624). Given the medical

evidence on this record, we believe that Mrs. Hill has

established her entitlement to survivor’s benefits as a matter of

law, and there is nothing left to do but award the benefits she is

clearly entitled to. 

Accordingly, we will “grant the petition for review,

reverse the decision of the Board and remand for the limited

purpose of awarding survivor’s benefits in accordance with 20

C.F.R. § 725.503(c). We urge the Board to expedite this award

so that survivor’s benefits will begin as soon as possible.”

Mancia, 130 F.3d at 594. “[F]urther administrative review is

unwarranted.” Sulyma v. Director, OWCP, 827 F.2d 922, 924

(3d Cir. 1987).