2004 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

 

No. 03-1668

 

JOHN A. SOUBIK, Executor of the

Estate

of Cecilia Soubik,

 Petitioner

v.

DIRECTOR, OFFICE OF WORKERS’

COMPENSATION PROGRAMS,

United States Department of Labor

 

On Appeal from the Benefits Review

Board, U.S. Department of Labor

(BRB No. 02-0251 BLA)

 

Argued December 18, 2003

BEFORE: ROTH and McKEE, Circuit

Judges, and CUDAHY*, Senior Circuit

Judge.

(Filed April 30, 2004)

Neil A. Grover, Esq. (Argued)

Law Office of Neil A. Grover

2201 N. Second Street

Harrisburg, PA 17110

Counsel for Appellant

Sarah M. Hurley, Esq. (Argued)

Howard M. Radzely

Donald S. Shire

Patricia M. Nece

U.S. Department of Labor

Office of the Solicitor

Suite N-2117

200 Constitution Ave., N.W.

Washington, D.C. 20210

Counsel for Appellee

 

OPINION

 

McKEE, Circuit Judge.

The widow of a deceased coal

miner1 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

U.S.C. §§ 901-945. She claims that the

ALJ did not properly weigh the lay and

medical evidence on remand following our

earlier decision, Soubik v. Office of

Workers’ Compensation Programs, No.

 

*

 Honorable Richard D. Cudahy, U.S.

Court of Appeals for the Seventh Circuit,

sitting by designation.

 

1

 Widow Cecilia Soubik died after

filing her appeal in this case. The executor

of Mrs. Soubik’s estate, John A. Soubik,

was substituted as the appellant on

February 5, 2004.
2

98-6338 (3d Cir. June 25, 1999) (“Soubik

I”), and that the Board should not have

affirmed the ALJ’s decision. For the

reasons that follow, we will once again

reverse and remand.

I.

After mining and hauling coal for

nearly 50 years, Michael Soubik filed a

claim under the BLBA in August 1980.

The claim stated that Soubik could no

longer work because he was short-winded

and had difficulty climbing stairs. The

Office of Workers’ Compensation

Programs (OWCP) denied his claim in

July 1981. He requested a hearing in 1982

after being notified that the denial of

benefits had been reaffirmed, and a

hearing was held before an ALJ in 1986.

He died shortly after the hearing. Dr. Jere

Wagner, one of his treating physicians,

signed a death certificate that listed acute

myocardial infarction as the cause of

death. In 1987, an ALJ again denied his

application for benefits. Although the

OWCP had stipulated that Mr. Soubik

s uffered from c oal miners ’

pneumoconiosis,2 the ALJ concluded that

the pneumoconiosis had neither

substantially contributed to, nor hastened,

Soubik’s death as required for BLBA

benefits. The BRB affirmed in 1988.

In 1986, while her husband’s claim

was still being litigated, Cecilia Soubik

filed her claim for survivor benefits under

the BLBA. The OWCP administratively

denied her claim on February 2, 1987, and

Mrs. Soubik requested a hearing before an

ALJ three days later. The claim was then

referred to another ALJ, who found that

the only remaining question was whether

pneumoconiosis substantially contributed

to, or hastened, her husband’s death.

 

2

 Under 20 C.F.R. § 718.201,

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. This definition

includes both medical, or “clinical”,

pneumoconiosis and statutory, or “legal”,

pneumoconiosis.

. . .

“Clinical pneumoconiosis” consists of

those diseases recognized by the medical

community as pneumoconioses, i.e., the

conditions characterized by permanent

deposition of substantial amounts of

particulate matter in the lungs and the

fibrotic reaction of the lung tissue to that

deposition caused by dust exposure in coal

mine employment. This definition

includes, but is not limited to, coal

workers’ pneu m o conio sis ,

anthra cosil icosis, anth racos i s,

anthrosilicosis, massive pulmonary

fibrosis, silicosis or silicotuberculosis,

arising out of coal mine employment.

. . . 

“Legal pneumoconiosis” includes any

chronic lung disease or impairment and its

sequelae arising out of coal mine

employment. This definition includes, but

is not limited to, any chronic restrictive or

obstructive pulmonary disease arising out

of coal mine employment. 
3

However, this ALJ concluded that he was

bound by the original ALJ’s determination

that pneumoconiosis did not hasten Mr.

Soubik’s death. Accordingly, the second

ALJ denied Mrs. Soubik’s claim for

survivor’s benefits.

In December 1989, Mrs. Soubik

appealed to the BRB. It affirmed the

ALJ’s decision denying her benefits in

March 1991, and denied her motion to

reconsider its decision in October 1991.3

Mrs. Soubik then submitted a request for

modification of the BRB’s decision to

OWCP,4 which denied it in April 1992.

Over five years later in 1997,

OWCP granted Mrs. Soubik’s request for

another hearing before an ALJ. That July,

an ALJ denied Mrs. Soubik’s claim. Mrs.

Soubik appealed to the BRB, but it denied

her appeal on July 28, 1998. She then

filed a petition for review in this court.

We reversed the BRB’s affirmance of the

ALJ’s decision in Soubik I and remanded

the case back to the BRB.

Two years later, in June 2001, the

BRB remanded the case to an ALJ for

proceedings consistent with Soubik I. That

ALJ again denied Mrs. Soubik benefits.

The BRB affirmed and this petition for

review followed.

A. Evidence before the third ALJ in

1997 

The third ALJ had before him the

medical opinions of three doctors as well

as the lay opinions of Mr. Soubik’s friends

and family. This evidence is summarized

below.

1. Medical opinions

a. Dr. Karlavage

Dr. Karlavage, who was boardcertified in family practice and dedicated

about 40 percent of his practice to treating

coal miners and former coal miners for

pulmonary problems, treated Mr. Soubik

from October 1985 until his death in April

1986. During that six-month period,

Soubik had three office visits. In his 1986

deposition, Dr. Karlavage stated that he

was aware of Soubik’s three pulmonary

function tests (“PFTs”). He stated that the

1981 PFT was abnormal, the 1985 PFT

was normal, and the 1986 PFT was

“essentially normal” because it had some

normal readings although one reading was

“consistent with obstructive lung disease at

29 percent.” Dr. Karlavage also stated in

his deposition that an x-ray from 1981

indicated anthracosilicosis and one from

1985 indica ted “pneum oconiosis

uncomplicated.” 

Based on his examinations of

Soubik, his review of Soubik’s medical

 

3

 Mrs. Soubik and her son sent a letter

to the BRB appealing its affirmation of the

ALJ’s decision, and the BRB deemed this

letter a motion for reconsideration.

 

4

 Mrs. Soubik wrote to OWCP stating

that she understood she needed to go to

federal court so she could submit

additional evidence to continue the claim,

and OWCP treated her correspondence as

a request for modification of the BRB’s

decision.
4

and occupational history, and the medical

tests he ran, Dr. Karlavage concluded that

Soubik “had lung disease best described as

pneumoconiosis and I think did have

coronary artery disease.” He concluded

that the pneumoconiosis was caused by

Soubik’s “exposure over a several decade

period. . . to silica, rock, and coal dusts.”

He reconciled the variable results from the

three PFTs with his conclusion that

Soubik’s death was substantially related to

his pneumoconiosis, stating that Soubik:

has a chest x-ray that does

indicate pneumoconiosis.

His physical examination

revealed, in my opinion,

some lung disease. There is

variab ility amon g

pulmonary function tests

that certainly does occur. . .

. [P]ulmonary function tests

can and do change from

month to month and from

year to year. So, he was

apparently breathing a little

bit better more recently.

He also noted a contrary negative reading

of one of the chest x-rays indicating that

Soubik did not have pneumoconiosis.

However, he explained that result by

noting the “obvious discrepancies” in the

doctor’s report who read the chest x-ray as

normal. That doctor also claimed that the

results of a PFT that was taken at the same

time as this x-ray were abnormal. Dr.

Karlavage also discounted the significance

of the normal PFT in 1985 because the

doctor who conducted that test did not

account for the medication Soubik was

taking and the effect it would have had on

the PFT.

In February 1995, Dr. Karlavage

wrote a letter to Mrs. Soubik’s attorney. It

stated in relevant part:

During that time [in which I

took care of Mr. Soubik], I

had the opportunity to

review a positive chest x-ray

and an abnormal pulmonary

function test. As you are

aware, Mr. Soubik expired

when he was 74 years old at

the Shamokin Hospital. The

patient’s death certificate

indicates arteriosclerotic

heart disease but on further

inquiry, the family has

discovered directly from the

attending physician, that

coal work er’ s

pne umo c o niosis wa s

involved in his death. (sic) 

. . .

In conclusion, it is my

opinion, as it was before,

that . . . the patient’s death

was substantially incurred

due to coal worker’s

pneumoconiosis. Indeed, he

had arteriosclerotic heart

disease and nerve block, but

there is no doubt in my mind

that coal w ork er’s

pneumoconiosis weakened

h im, wo rsened his
5

condi tion, a n d

speeded his death. 

b. Dr. Wagner 

Dr. Wagner treated Mr. Soubik for

his heart condition from May 1984 until

Soubik’s death, and signed Soubik’s death

certificate.5 Soubik’s death certificate

listed his cause of death as acute

myocardial infarction with complete heart

block and included cardiogenic shock

under “other significant conditions.” Dr.

Wagner was unaware that Soubik had also

been treated by Dr. Karlavage when he

signed the certificate. Nine years after

Soubik died, Dr. Wagner wrote a letter in

response to an inquiry from Mrs. Soubik.

The letter stated that, after reviewing Dr.

Karlavage’s medical records including

pulmonary function studies and x-ray

findings, Dr. Wagner concluded that

Soubik’s pulmonary impairmentsecondary

to his pneumoconiosis “could have

contributed” to the miner’s cardiac

condition and subsequent death.

c. Dr. Spagnolo

The OWCP had Dr. Spagnolo, who

was board-certified in internal medicine

and pulmonary diseases, review Mr.

Soubik’s medical history. That history

included the PFTs from 1981, 1985, and

1986; two blood gas tests; and two chest xray readings. Based on his review of

Soubik’s history, Dr. Spagnolo concluded

that pneumoco niosis was no t a

substantially contributing factor to

Soubik’s death, and that there was no

reasonable evidence that the miner’s death

was caused by complications of

pneumoconiosis.

Dr. Spagnolo gave no weight to Dr.

Karlavage’s medical opinion to the

contrary because Spagnolo believed that

Karlavage had not adequately explained

the normal results of the pulmonary

function tests from 1985 and 1986.6 He

also gave no weight to Dr. Wagner’s

opinion because it was based on Dr.

Karlavage’s records and also failed to

explain the normal pulmonary function test

results. 

Dr. Spagnolo concluded that:

the medical record in my

opinion provides little

evidence for the presence of

a pneumoconiosis. In fact,

the only B-reader report7

 

5

 Unlike the other two doctors whose

opinions were in the record, Dr. Wagner’s

credentials were not specified.

 

6

 As noted above, that is simply not

true. Dr. Karlavage explained the normal

results in 1985 by factoring in the effect of

Soubik’s medication.

 

7

 A “B-reader” is a person with a

significant level of qualification for

reading x-rays, and this court has given Breaders’ x-ray readings greater weight than

readings by less qualified personnel. See

Labelle Processing Co. v. Swarrow, 72

F.3d 308, 310 n.3 (3d Cir. 1995). Only

one of the people reading one of Mr.
6

indicates no evidence

of coal workers’

pne umoconiosis.

N e verthel e s s ,

assuming that a

pneumoconiosis was

present in Mr.

Soubik, his lung

function in 1985 and

again in March 1986

shortly before his

death was normal.

The normal arterial

blood gas results in

1985 provide further

support for the

conclusion that Mr.

Soubik had normal

lung function. Thus,

this medical record

does not provide

reliable evidence of a

clinically significant

impairment of lung

function or evidence

of progression of any

lung problem at the

time of his death.

Therefore, even if

Mr. Soubik had a

pneumoconiosis, it

did not result in a

clinically significant

impairment of his

heart or lung.

. . .

In summary, . . . Mr.

Soubik’s death was not

cau sed by a

pne umoconiosis. A

pneumoconiosis was not a

substantially contributing

factor leading to his death

and there is no reasonable

evidence (including a well

reasoned medical opinion)

that his death was caused by

com pli cati o n s o f

pneumoconiosis.

2. Lay evidence

There were lay opinions in the

record from Mr. Soubik himself as well as

Mrs. Soubik; Walter Koshinskie, their

neighbor and Mr. Soubik’s co-worker;

John Soubik, the Soubiks’ son; Frank

Alberts, Mr. Soubik’s brother-in-law; and

Adeline Cecilia Dilliplane, the Soubiks’

daughter’s mother-in-law. 

a. Mr. Soubik

Mr. Soubik testified that he had

suffered difficulty breathing and shortness

of breath for “the last 15 years and as the

years progress, it is getting more and

more.” He stated that if he walked a city

block he would have to stop; that if he had

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

nitroglycerin for his heart. He retired

completely in 1983 due to his breathing

Soubik’s chest x-rays was a B-reader. He

concluded that Soubik’s x-ray did not

indicate pneumoconiosis.
7

problems, had a heart attack in 1984, and

never smoked.

b. Mrs. Soubik

Mrs. Soubik testified during the

1989 hearing on her survivor claim. She

also stated that her husband took

Brondicon for his black lung problem.

She stated that it “sort of loosened up his

phlegm [so] that he had to spit up.” She

also testified that he took medication for

his heart after having a heart attack in

1986, shortly before his death. The day he

died, he became short of breath and was

taken to the hospital where he was put in

an oxygen tent. He stayed in the tent until

he died.

She also testified during the 1997

hearing that she personally observed her

husband’s breathing difficulty for “a long

period of time” before his death. Even

after he retired from work and started

receiving Social Security disability

benefits, he would breathe heavily and spit

up blood and mucus every day. The

problem was particularly pronounced in

the evening. She also saw that, just before

his death, he could barely walk and was

very weak.8

c. Walter Koshinskie

Koshinskie testified at the 1989

hearing that he had known Mr. Soubik for

forty years.9 Soubik had hauled coal for

him, and their homes were close to each

other on the same street. He noticed that

Soubik’s health was slipping because

Soubik could not walk well or walk up

stairs because it would “take his wind.”

The day that Soubik died, Koshinskie

noticed that he was winded from walking

outside.

d. John Soubik

John Soubik testified at the 1997

hearing that every time he came home to

visit his parents, he could see his father’s

condition had deteriorated. He observed

that his father had “considerably slowed

down,” and heard him make “gasps for

air” and have a “trying to catch his breath

feeling.” He also saw his father raise his

chest “like he was trying to get air,” and

“hold[] on to the bannister a lot going

down the stairs.” John Soubik also took

his father to the hospital where he was

“hooked. . . up to that breathing

apparatus.”

e. Frank Alberts

Alberts testified at the 1997 hearing

that he had known Mr. Soubik, his brotherin-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

lung disease, and that she had seen her

brother daily for about 20 years before his

death. But this testimony is never linked

to any observations she made of her

husband’s illness. 

 

9

 He also testified at the April 1986

hearing on Mr. Soubik’s claim, but that

testimony focused on establishing that

Soubik had worked as a coal miner and

hauler.
8

worked with him for about a decade

starting in the mid-1930s. He “could see

[Soubik] gradually slowing down. . . over

a period of years” and “could see his

breathing was getting slower. . . and he’d

have to fight for his breath” starting in

about 1974 or 1975. He saw Soubik have

trouble catching his breath “pretty

regular.” Periodically, he saw him

coughing or spitting when they would

visit. He noticed that Soubik had trouble

going up the steps in his house as he got

older.

f. Adeline Cecilia Dilliplane

Ms. Dilliplane had known Mr.

Soubik since 1969 when her son married

the Soubiks’ daughter. She stated that Mr.

Soubik had trouble helping her son build a

house. “[H]e would do some things and

then he would stop because he’d start

wheezing. He’d start coughing.” She said

that she thought he had breathing problems

comparable to hers, and she had serious

problems with asthma. Over time, they

saw each other less often but regularly.

During visits she would hear him wheeze

and “knew he was having a bad. . .

breathing problem.”

B. The ALJ’s 1997 Decision

The ALJ’s 1997 decision denying

benefits was based on Dr. Spagnolo’s

opinion. The ALJ discounted Dr.

Wagner’s opinion as too vague, and he

discounted Dr. Karlavage’s opinion

because it was based on “the report of the

miner’s relatives that pneumoconiosis was

involved in the miner’s death” as Dr.

Wagner had conveyed to them. The ALJ

noted that Mrs. Soubik and “the miner’s

sons and sister-in-law” had testified that

Mr. Soubik had become short of breath

over time, but he did not discuss that

evidence. 

C. Soubik I

In Soubik I, we reversed the BRB’s

decision affirming the ALJ’s denial of

benefits, and we remanded for “further

consideration of the lay evidence.” We

agreed with the ALJ that the only dispute

was causation. Accordingly, Mrs. Soubik

had to establish that Mr. Soubik’s death

was due to pneumoconiosis, i.e., that

pneumoconiosis “was a substantially

contributing cause or factor” leading to her

husband’s death or that his “death was

caused by com pli cations o f

pneumoconiosis” under 20 C.F.R. §

718.205(c).10 We also concluded that Mrs.

Soubik could prove her claim using

“medical evidence alone, non-medical

evidence alone, or the combination of

medical and non-medical evidence” under

Hillibush v. Dep’t of Labor, 853 F.2d 197,

205 (3d Cir. 1988). Hillibush explicitly

held that lay testimony must be considered

in a survivor’s case under 20 C.F.R. §

718.204.

In the case at hand, we held in

Soubik I that neither the ALJ nor the BRB

 

10 In Lukosevicz v. Director, OWCP,

888 F.2d 1001, 1004, 1006 (3d Cir. 1989),

we held that if the pneumoconiosis hastens

death, even briefly, it can be considered a

substantially contributing cause of death

under 20 C.F.R. § 718.205(c). 
9

had given any consideration to the lay

evidence offered in support of Mrs.

Soubik’s claim, and this evidence “could

be enough to satisfy Mrs. Soubik’s burden

of proof that pneumoconiosis hastened her

husband’s death.” We also noted that the

ALJ and BRB had relied heavily on the

opinion of Dr. Spagnolo, and that he had

formed his opinion “based on his review of

Soubik’s medical history” rather than the

opinions of Soubik’s treating physicians,

Dr. Karlavage and Dr. Wagner. 

D. The ALJ’s 2001 Decision on

Remand

Upon remand from Soubik I, the

ALJ summarized the lay testimony in the

record. He found that the lay opinions did

not clearly establish that Mr. Soubik’s

ongoing deterioration was due to

pneumoconiosis or a pulmonary condition.

He also discussed each of the three

doctors’ opinions again, and reached the

same conclusion, that Dr. Spagnolo’s

opinion was the most persuasive.

The ALJ again found that Dr.

Wagner’s opinion was “equivocal and

vague” because he merely stated that the

pneumoconiosis “could have contributed”

to the miner’s death, as he had in 1997.

He also found that Dr. Karlavage’s opinion

was “not well documented nor well

reasoned” because “he did not discuss the

basis for [his] conclusion [that the miner

was totally disabled from coal mine

employment due to his lung disease] given

his own deposition testimony that the

miner’s pulmonary function study results

from studies taken in 1985 and 1986 were

normal.” He also stated that Dr.

Karlavage’s February 22, 1995 letter

established that the doctor “bases his

conclusions regarding the cause of the

miner’s death, in part, . . . only on

statements from the miner’s relatives.” 

The ALJ concluded that Dr.

Spagnolo’s opinion would outweigh the

other doctors’ opinions even if they could

establish that pneumoconiosis hastened

Soubik’s death because of Dr. Spagnolo’s

superior credentials and because “Dr.

Wagner. . . did not treat the miner for

respiratory problems and Dr. Karlavage

only saw the miner on three office visits

over a six month period.” The ALJ

believed that the lay testimony was also

outweighed by “the thorough and complete

report of Dr. Spagnolo.” The ALJ

described Dr. Spagnolo as both “[a] highly

qualified. . . pulmonary specialist” as well

as the beneficiary of a complete review of

Soubik’s medical records. The ALJ thus

concluded that Mrs. Soubik did not

establish pneumoconio si s was a

substantially contributing factor in her

husband’s death or that it hastened his

death, and he therefore denied survivor’s

benefits.

II. Standard of Review

Because the BRB adopted the

ALJ’s factual findings, we independently

review the entire record to determine if the

ALJ’s factual 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 v. Director,
10

OWCP, 893 F.2d 615, 619 (3d Cir. 1990)).

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

adopted by the BRB. Id.; see also Carozza

v. U.S. Steel Corp., 727 F.2d 74, 77 (3d

Cir. 1984). 

III. Discussion

Mrs. Soubik argues that the ALJ did

not follow Soubik I on remand because he

failed to properly weigh the lay evidence

in the context of the evidence as a whole.

She also argues that the ALJ did not

properly consider the opinions of Dr.

Karlavage and Dr. Wagner. Finally,

assuming we find these arguments

meritorious, she requests that we grant her

BLBA benefits rather than remanding and

reversing.

A. Weighing the lay evidence

The ALJ did consider the lay

evidence on remand per our instructions in

Soubik I. His opinion summarized what

each layperson said and analyzed its

probative value. The ALJ noted that each

of the lay witnesses established that Mr.

Soubik was having trouble breathing,

noticed that Mr. Soubik had increased

trouble with his breathing over time, and

observed his frequent coughing and

spitting up mucus and/or blood. He then

explained his rationale for rejecting the lay

evidence. According to the ALJ, the lay

evidence that Mr. Soubik had breathing

troub le did not establish that

pneumoconiosis was responsible for, or a

contributing factor to, Soubik’s breathing

impairment. The ALJ concluded that Dr.

Spagnolo’s opinion regarding the cause of

Mr. Soubik’s breathing problems was

more persuasive than these lay opinions.

B. Weighing the medical evidence

Although the lay evidence alone did

not offer an etiology of Mr. Soubik’s

breathing troubles,11 the ALJ improperly

minimized its significance in weighing Dr.

Spagnolo’s opinion and Dr. Karlavage’s

contrary opinion. Mrs. Soubik argues that

this was error because Dr. Spagnolo’s

conclusion that no pneumoconiosis was

present contradicted the parties’stipulation

to the contrary. She also argues that the

ALJ erred in discounting Dr. Karlavage’s

opinion and that he misunderstood the

basis of that opinion.12

 

11 The ALJ could hardly expect lay

testimony to establish causation or

etiology. That is beyond the purview or

the competence of lay witnesses. Such

testimony can only be expected to

corroborate certain symptoms and

establish pertinent behavior or quality of

life issues. Expert testimony will usually

be required to establish the necessary

relationship between such observed indicia

of pneumoconiosis and any underlying

pathology.

 

12 Mrs. Soubik also argues that the ALJ

improperly disregarded Dr. Wagner’s

opinion because it was conditional. As

noted above, his opinion stated that

pneumoconiosis “could” have contributed

to Mr. Soubik’s death. She cites to Piney
11

In Soubik I we noted that the ALJ

“relied heavily” on Dr. Spagnolo’s

opinion, and that opinion was based solely

on a review of Soubik’s medical history.

Dr. Spagnolo never saw Mr. Soubik. We

thus raised the ALJ’s reliance on Dr.

Spagnolo’s opinion as an issue, but did not

definitively state that the ALJ had

incorrectly relied on it. Accordingly, there

is no law of the case regarding the doctors’

opinions.

The Court of Appeals for the Fourth

Circuit has held that an ALJ may not credit

a medical opinion stating that a claimant

did not suffer from pneumoconiosis

causing respiratory disability after the ALJ

had already accepted the presence of

pneumoconiosis unless the ALJ stated

“specific and persuasive reasons” why he

or she relied upon such an opinion. Scott v.

Mason Coal Co., 289 F.3d 263, 269 (4th

Cir. 2002) (internal citation omitted). Like

the medical opinion in Scott, Dr.

Spagnolo’s expert opinion states that

Soubik did not have pneumoconiosis

despite the parties’ agreement that he did.

Dr. Spagnolo’s opinion can be

distinguished from the opinion in Scott

because he stated that even if Soubik had

pneumoconiosis, there is still no evidence

that it contributed to his death. However,

that superficial “hypothetical” does not

reconcile his opinion with the stipulation

that pneumoconiosis was present.

Common sense suggests that it is usually

exceedingly difficult for a doctor to

properly assess the contribution, if any, of

pneumoconiosis to a miner’s death if

he/she does not believe it was present.

The ALJ did not explain why Dr.

Spagnolo’s opinion was entitled to such

controlling weight despite Dr. Spagnolo’s

conclusion that Soubik did not have the

disease that both parties agreed was

present. 

Moreover, on remand, the ALJ

obviously misunderstood how Dr.

Karlavage arrived at his opinion and this

contributed to his improper discounting of

Dr. Karlavage’s conclusion. The ALJ

cited part of Dr. Karlavage’s letter to Mrs.

Soubik’s counsel, which stated: “The

patient’s death certificate indicates

arteriosclerotic heart disease but on further

inquiry, the family has discovered directly

from the attending physician, that coal

worker’s pneumoconiosis was involved in

his death.” The ALJ then concludes that,

Mountain Coal Co. v. Mays, 176 F.3d 753,

763 (4th Cir. 1999). In Piney Mountain,

the court evaluated a medical opinion that

stated that “pneumoconiosis could be

considered a complicating factor” in the

miner’s death. The court held only that

such an opinion need not be rejected, as

the petitioner argued, stating that “a

reasoned medical opinion is not rendered

a nullity because it acknowledges the

limits of reasoned medical opinions.” Id.

However, the court also recognized that

“uncertainty is not proof, and claimants

must prove entitlement.” Id. Accordingly,

under Piney Mountain, the ALJ was free to

minimize the probative value of Dr.

Wagner’s conditional opinion but he did

not have to reject it solely because it

appeared to be equivocal.
12

since Dr. Karlavage based his opinion that

pneumoconiosis contributed to Soubik’s

death on information from Soubik’s

family, Dr. Karlavage’s opinion was not

well-reasoned nor well-documented.

That conclusion is not supported by

substantial evidence. In fact, it is flatly

contradicted by Dr. Karlavage’s 1986

deposition, which was part of the record

from Mrs. Soubik’s earlier hearings before

other ALJs. The deposition details Dr.

Karlavage’s examination and analysis of

three PFTs, the same two chest x-rays that

Dr. Spagnolo relied on, and his own

personal observations of the patient.

Based on this information, Dr. Karlavage

opined in 1986 that So ubik ’s

pneumoconiosis advanced his death. The

language in Dr. Wagner’s 1995 letter,

written nine years after he issued his initial

opinion regarding the factors contributing

to Soubik’s death, indicates only that Dr.

Wagner later amended his opinion to say

that pneumoconiosis could have

contributed to Soubik’s death after he

reviewed Dr. Karlavage’s records and

opinion. Dr. Karlavage’s opinion was

based on much more than just the family’s

opinion that pneumoconiosis hastened

Soubik’s death. It was therefore irrational

for the ALJ to discount Dr. Karlavage’s

opinion merely because it refers to Dr.

Wagner’s 1995 letter. 

It was also improper for the ALJ to

assume that Dr. Karlavage’s consideration

of information from Mr. Soubik’s family

and others who had observed him regularly

was a failing. The ALJ did not explain

that assumption. He stated only that the

lay evidence standing alone does not

provide support for the theory that

pneumoconiosis hastened or caused Mr.

Soubik’s death. He does not explain why

he assumed that Dr. Karlavage’s opinion

would be worth less than Dr. Spagnolo’s

because Dr. Karlavage took such

information into account when forming his

opinion. Indeed, it seems that Dr.

Karlavage’s opinion would be stronger

because it factored in the lay observations

of those who knew Mr. Soubik.13

 

13 Moreover, at oral argument the

government conceded that Dr. Spagnolo

might have come to a different result if he

had the benefit of the lay evidence. As

noted above, Dr. Spagnolo concluded that

there was no “reliable evidence of a

clinically significant impairment of lung

function or evidence of progression of any

lung problem at the time of his death.”

Yet it is clear from the testimony of those

who knew Soubik that he was having an

increasingly difficult time breathing and

regularly coughed up mucus. Moreover,

the testimony of those who knew Soubik

also established that he was placed in an

oxygen tent when last admitted to the

hospital and that he never recovered. The

ALJ never explained why testimony as

compelling as this can be ignored in favor

of a doctor who opined that Soubik had no

“clinically significant” lung problems.

This is especially true when that doctor

never saw the patient, and all but ignored

the fact that parties are assuming that

pneumoconiosis was present given their

stipulation on this point.
13

The ALJ also failed to give Dr.

Karlavage’s opinion the additional

deference it was due as the opinion of a

treating physician. The ALJ stated that he

did not credit Dr. Karlavage’s opinion as

that of a treating physician because Dr.

Karlavage had only seen Soubik three

times over six months. That was, of

course, three more times and six months

more than Dr. Spagnolo saw him. So

easily minimizing a treating physician’s

opinion in favor of a physician who has

never laid eyes on the patient is not only

indefensible on this record, it suggests an

inappropriate predisposition to deny

benefits. It is well-established in this

circuit that treating physicians’ opinions

are assumed to be more valuable than

those of non-treating physicians. Mancia v.

Director, OWCP, 130 F.3d 579, 590-91

(3d Cir. 1997). The ALJ nevertheless

ignored Dr. Karlavage’s clinical expertise;

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

compelling credential than Dr. Karlavage’s

many years of “hands on” clinical training.

C. Directing BLBA benefits

We turn to the final issue that Mrs.

Soubik raises. She asks us to remand this

case to the BRB solely to direct entry of an

award of benefits based on the inordinate

delay in properly adjudicating her claim.

She argues that allowing her claim to drag

on any longer would be unfair and

inappropriate because she would certainly

be granted compensation upon remand.14

We agree that this litigation has

been unnecessarily protracted. We have

previously expressed our frustration over

the inefficiency and delay that is all too

often part of the black lung administrative

process. We have done so in a case where

a claimant had been litigating her claim for

benefits for seven years, ten fewer years

than Mrs. Soubik. Mancia, 130 F.3d at 593

(internal citation omitted). In Mancia, we

quoted our decision in Lango v. Director,

OWCP, 104 F.3d 573 (3d Cir. 1997) in

noting that we had “previously expressed

our concern over the ‘dismaying

inefficiency’ of the black lung

administrative process.” 130 F.3d at 593

(quoting Lango, 104 F.3d at 575-76). The

delay in Lango was 14 years, again

substantially shorter than the delay that

Mrs. Soubik was made to endure. We

there gave several examples of inordinate

 

14 Mrs. Soubik also argued that the

delay was particularly unfair to her

because she was 85 years old, implying

that she might not live long enough to

receive the benefits she was due if we did

not direct the BRB to grant them. As

noted above, Mrs. Soubik died before oral

argument in this case. In light of her

death, we need not now consider this

argument. It is, however, an all too tragic

example of the kind of hardship that can

result from the all too frequent delay in

these cases.
14

delay ranging from ten years15 to as many

as seventeen,16 and even nineteen years.17

We then stated, “[h]opefully, the

publication of our concern will come to the

attention of authorities who can do

something about it.” Lango, 104 F.3d at

576. We made that statement in 1997.

Yet, even after that admonition, it took the

BRB two years to remand this matter to

the ALJ following our remand to the BRB.

We therefore have little reason to think

that the delays that attend black lung

litigation have been mitigated or even

addressed by the administrative agencies

involved. Given our continuing concern,

we take the liberty of reiterating at length

the concerns we expressed in Lango:

Were this the only case to

come to our attention with

such delay, we would be

inclined to attribute it to a

rare bureaucratic snag. 

However, we note that some

recent black lung cases in

this circuit suggest that this

dismaying inefficiency is

not unusual . . . . As far as

we can tell, it appears that

many cases languish while

waiting for an ALJ or the

BRB to hear them.

Although there may have

been special circumstances

in some of these cases that

explain the delay, and we

have not ex haustively

examined the records, there

is enough basis in the mere

recitation of the facts to

prompt consideration by the

relevant administrators . . . .

Delays are especially

significant for recipients of

black lung benefits since

most are nearing the end of

their lives. Claimants have

less time to use the benefits,

and they often must wait

when illness is increasing

their expenses but while

retirement has reduced their

income. Worse, some may

die before litigation resolves

their claims. 

Chief Judge Posner has

expressed similar concerns

about black lung cases in the

Seventh Circuit. In Amax

Coal Co. v. Franklin, 957

F.2d 355, 356 (7th Cir.

1992), he remarked:

As so often in black

lung cases, the processing of

the claim has been

protracted scandalously . . .

Such delay is not easy to

 

15 See Gonzales v. Director, OWCP,

869 F.2d 776 (3d Cir. 1989).

 

16 See Keating v. Director, OWCP, 71

F.3d 1118 (3d Cir. 1995); Kowalchick v.

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

1990).

 

17 See Kline v. Director, OWCP, 877

F.2d 1175 (3d Cir. 1989). 
15

understand. These

are not big or

complex cases . . . .

The typical hearing

lasts, we are told, no

more than an hour . .

. The delay in

processing these

claims is especially

regrettable because

most black lung

claimants are middleaged or elderly and

in poor health, and

therefore quite likely

t o die befo r e

receiving benefits if

their cases are spun

out for years. We

hope that Congress

wil l cons ide r

streamlining th e

adjud i c a tion o f

disability benefits

cases (not limited to

black lung) along the

lines suggested by

the Federal Courts

Study Committee.

See the Committee’s

Report (April 2,

1990), at pp. 55-58.

104 F.3d at 573-75. Protracted delay that

results in claimants not living long enough

to collect any benefits they might be

entitled to is, in and of itself, an injustice

that ought to be addressed. However, the

situation is ex ac erba ted by a n

exceptionally low rate of agency approval

of benefit claims. “According to one

commentator who cited official reports to

Congress, the approval rate for applicants

for federal black lung benefits is

exceedingly low.” Id. at 575-76 (citing

Timothy F. Cogan, Is the Doctor Hostile?

Obstructive Impairments and the Hostility

Rule in Federal Black Lung Claims, 97 W.

VA. L. REV. 1003, 1004 (1995)). The

sweat and health of miners fueled much of

the growth of the American economy. It is

indeed unfortunate that they and their

families must also now endure the kind of

administrative ordeal evidenced by Mrs.

Soubik’s attempt to collect survivor’s

benefits.

Nevertheless, however frustrating

this may be, as a court we can not direct

the award of black lung benefits solely

because of protracted administrative delay.

See Mancia, 130 F.3d at 593. Although

the length of any delay is a factor we have

often considered when determining

whe ther to reman d for furt her

consideration or to direct benefits, we

previously noted that remand for an award

of benefits is inappropriate where the

record supports conflicting inferences. Id.;

Kowalchick v. Director, OWCP, 893 F.2d

615, 624 (3d Cir. 1990). 

Here, the unexamined evidence

could support a finding for or against Mrs.

Soubik. If Dr. Karlavage’s opinion as a

treating physician is given proper weight,

and if the lay evidence is properly

considered, the record supports only one

result: an award of benefits to Mrs.

Soubik. If, however, the ALJ had offered

“specific and persuasive reasons” for
16

relying upon Dr. Spagnolo’s opinion

despite findings that are contrary to the

parties’ stipulation and the opinion of the

treating physician, the record would

support the ALJ’s denial of benefits.

The ALJ and BRB have already had

three chances to properly support a

decision denying benefits. Yet the

decision to deny benefits remains

unsupported by the record. This, together

with the outrageous delay, leads us to

agree that circumstances here require that

we direct benefits on remand. We see no

point in remanding these issues for a

fourth time when the ALJ and BRB have

thus far been unable to justify elevating

Dr. Spagnolo’s opinion over that of the

treating physician, the lay evidence, and

the parties’ own stipulation. See

Podedworny v. Harris, 745 F.2d 210, 223

(3d Cir. 1984) (concluding that “it would

be virtually imp ossible for th e

[government] in a third hearing to adduce

the new vocational and medical evidence

that would be necessary to support a

finding that th[e] appellant is not disabled”

in a social security benefits case, given

significant “deficiencies in the record and

the failure of the [government] to cure

them in the second proceeding before the

ALJ. . . .”).

Dr. Karlavage’s opinion was based

on actual treatment as well as a record

review. Dr. Karlavage’s clinical expertise,

derived from an extensive practice of

treating miners, the corroboration of lay

testimony, and the stipulation of the

parties, provide more than sufficient

support for Mrs. Soubik’s claim absent a

reasoned explanation for a contrary

finding.18 Accordingly, we believe that

Mrs. Soubik, the original petitioner, has

established her entitlement to survivor’s

benefits under the BLBA, and we will

direct that an award of those benefits be

entered on remand. 

IV.

We will reverse the decision of the

BRB entered on January 8, 2003, and

remand the case for an award of benefits

as of the appropriate commencement date.

Since this case has been litigated for nearly

two decades already, we assume that the

BRB will expedite that award.

ROTH, Circuit Judge, dissenting:

My reading of the record in this

appeal does not persuade me that it

supports only one result - as is concluded

by the Majority. Nor do I believe,

pursuant to our standard of review – are

the ALJ’s factual findings rational,

consistent with applicable law, and

supported by substantial evidence on the

record considered as a whole – that the

Court is justified in reversing the judgment

of the Benefits Review Board – however

much I may feel personal sympathy for

Mrs. Soubik.

I do, however, agree with the

 

18 We reach this conclusion without

disturbing the ALJ’s finding that Dr.

Wagner’s opinion was too vague to be

useful. 
17

majority that the protracted delay in

resolving federal black lung benefits cases

is regrettable.