2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

4-30-2004 

# S oubi k v . D ir ec t or OWC P

P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al
D ocke t N o . 03-1668

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no va . e du

. Re c omme nde d C it at ion

" S oub i k v . Dir e ct or O WC P " (2004). 2004 D e cisio n s
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w . v i l l a no va . e du/thir dc ir c uit_2004/732PRECE DENTI AL

UNIT ED STA TES C OURT OF AP PEA LS F OR TH E TH IRD CIR CU IT

No

. 03-1668

JOHN A. SOUB IK, Executor of the Estate of Cecili a Soubik,

Petitioner

v.
DIRECTOR, OFFICE OF W ORKER S’ COM PENSATION PR OGRA MS, United States Department of Labor

On Appeal from the Benefit s Review Board, U.S. Department of Labor (BR B No. 02- 025 1 BLA)

Argued December 18, 2003

BE FO RE : RO TH and M cK EE , Circu it Judges , and C UDAHY *
, Sen ior C ircuit Judge

. (Fil ed April 30, 2004) Neil A. Grover, Esq. (Argued) Law Office of Neil A. Grover 2201 N. Second Street Harrisburg, PA 17110 Counsel for Appell ant Sarah M. Hurley , Esq. ( Argued) Ho wa rd M . Rad zely Don ald S. Shire Patri cia M. Nece U.S. Department

of Labor Office of the Sol icitor Suite N-2117 20 0 C on st

i t uti on Av e. , N. W. Washington, D.C. 20210 Counsel for Appell ee

OPI NION

M cK EE , Circuit

Judge

.

Th e wi dow of a deceased coal miner 1 returns to this court to appe al the Ben efits Review Boa rd’ s thi rd denialof her claim for survi vor’s bene fits under the Black Lung Ben efits Act (“BLBA”), 30 U.S .C. §§ 901 -945 . She cl aims that the ALJ did not pr operlyweigh the l ay and
me d icalevidence on remand following our earli er dec ision , Soubik v. Office of Workers’ Comp e ns at io n Progr ams , No.

* Hon or ab le Ri ch ar d D. Cud ah y , U

. S

. Cou rt of A ppea ls for th e Sev enth C ircuit, sitting by designation. 1 Widow Cecilia Soubik di ed after fili ng her appealin thi s case. The executor of Mrs. Soubik’s e state , John A. Soubi k,
was su bst ituted as the appellant on February5, 2004.2

98-6338 (3d Cir. June 25, 1999) (“ Sou bik I”), and that the Board sh o uld not have affi rm ed the ALJ’s deci sion. For the
reasons t ha t follow , we w ill once again
revers e and remand. I. After mining and h auli ng coal for nearly 50 year s, Michae l Soubik fil ed a clai m un der the BLBA in August 1980. The clai m stated t

hat Soubi k could no longerwork because he was short -winded
an d had diff icult y clim bin g sta irs. Th e Office of W orkers’ Co mp ensa tio n Pro gr ams (OW CP ) den ied his c laim in July 1981. He requested a heari ng in 1982 after being noti fied that theden ial of bene fits ha d be en reaffi rmed, and a hearing wa s held befor e an ALJ in 1986. He died s hortly after

the hearing. D r. Jere Wag ner, one of his t

reati ng physi cians , signed a death certifi cate that l isted ac ute myoca rdia l in farction as t he cause of deat h. In 198 7, an A LJ ag ain de nied h is appl ica tion for benefi ts. Although the OWCP had sti pulate d t hat M r. Sou bik
s uffered from c oal miners ’ pn eumoconiosis, 2 the A LJ co nclud ed th a t the pneumoco niosi s had ne ithe r subs tantially contributed to, nor hast ened, Soub ik’s death as re qui re d fo r BLBA benefit s. The BRB affirmed in 1988.
In 1986, while her

husb and’ s claim
was st il l being litigated, C ecilia S oub ik file d her claim for survivorbenefit s under the BL B A. T he O WC P ad minis tratively denied her claim on Februa ry 2, 1987, and Mrs. Soubik reques ted a heari ng before an ALJ three da ys late r. The cl aim was then referred to anothe r ALJ, who found tha t the onlyremaini ng questi on was whether pneu mo conio sis substant ially cont

ributed to, or hastened, her husband’ s death.

2 Under 20 C.F.R. § 718. 201, pneumoco niosis is defi ned as:
a chron ic dus t diseas e of th e lung and its seq uelae, includi ng res pirat ory an d pulm onary impairm ents, aris ing out of c oal min e employment . This de finit ion include s both m e dical , or “cl inical”, pneu mo conio sis and stat utory , or“ legal ”, pneumoco niosis.

. . . “Clini cal pneumoconiosis ” consis ts of those di s eases r ecognized bythe medical
commun it y as pneumoconioses , i. e., the conditi ons characterize d by pe r manent deposition of substantialamount s of p a rticulate matter

in the lungs and the fibrotic reaction of thelun g tis sue to t hat deposition caused bydust e xpo sure in coal
m ine emp loymen t. This d efiniti o n includes, but is n ot l imit ed to, coal workers’ pneu m o conio sis , anthra cosil icosis, anth racos i s , an throsili cosis, massive pulmonar y fibrosis, silicosis o r silicotub erculo si s, arising out o f coa l mine emp loymen t.

. . . “Legal pneumoconiosis ” i ncludes any chro nic lung disease or impair ment and its sequelaearis ing out of c oal mine emp loymen t. This defi niti on include s, but is not li mited t o, anychronic restricti ve or obstruc tive pulmonarydiseas e aris ing out of c oal m ine e mp loym ent.3

How ever, this ALJ concluded that hewas bound by the ori ginal ALJ’s determi nation t hatpneum oconiosis d id not hasten M r. Sou bik ’s d eath. Accordingly , the second ALJ denied Mrs. Soubi k’s cl aim for survivor’s benefits.
In December 1989, M rs. Sou bik appea l ed to the BRB. It affirmed t

he AL J’s decisio n den ying her b enef it s in Mar ch 1991, and deni ed her moti on t o reconsi der its decisi on in October 1991. 3 Mrs. Sou bik th en submitted a request for modification of th e BR B’s d ecision to OWC P, 4 which denied i t in Apri l 1992. Over fiv e ye a rs later i n 1997, OWCP g r anted Mrs. Soubi k’s reque st for another hearing be fore an ALJ. That Ju ly,
an ALJ denied M rs. Soubik’s claim. Mrs. Sou bik appealed to the BR B, bu t itdenied her app eal o n Ju ly 28, 1 9 98. She the n file d a petition for re view in this co urt. We revers ed the BRB’s affirmance of the AL J’s decisi on in Soubik I and rem a nded th e ca se bac k t o the BRB.
Two years lat er, i n June 2001, t he BRB rem anded the caseto an ALJ for

proceedi ngs cons istent w ith Soubik I

. That ALJ again denied Mrs. Soubik benef its. The BRB affirmed and thi s pe tition for review fol lowed. A. E vide nce b efore the th ird A LJ in

1997 The third ALJ had before him the medical opin ions o f three docto rs as w ell
as the layopinions of Mr. Soubik’s f riends
an d f am ily. This evide nce is summarized be lo w. 1. Medica l opi nions

a. Dr. Karlavage Dr. Karlavage, who was boardcerti fied in familypracti ce and dedicated about40 percent

of his pr acti ce to treati ng coal miners and former coal miner s for pulmo nary pr obl ems , treated M r. Sou bik from October 1985 until his death in A pril 1986. During thatsix-month period, Sou bik had three office v isits. In his 1986 deposition, Dr

. Karlavage st ated that he
wa s aw are of So ubik’s three pu lmonary functi on tests (“PFT s”). He stated t hat the 1981 PF T w as a bno rma l, the 1985 PFT
was no rmal , and the 1986 PFT was “esse ntially n o rma l” bec aus e i t h ad s ome normal readings although one readi ng was “consis ten t with obstructive lung dise ase a t 29 percent .” Dr. Karl avage als o stated i n his deposi tio n that an x-rayfrom 1981 indicated anth ra cosil icosi s and one from 1985 indica te d “p neu m o coniosi s uncomplicated.” Based on his examinations of Soubik, his review of Sou bik’s medical 3 M rs. Soubik and her s on sent a l ette r to the BRB appealing it s affirmation of the AL J’s decisi on, and the B RB deem ed this letter a moti on for recons iderat ion.

4 Mrs. Soubik wrote to O WCP stating that she understood sh e need ed to g o to fed eral cour t so she could subm it additi onal evi den ce to co nt in ue t he c la im, and OW CP treate d her correspondence as
a request for modifi cati on of t he BR B’s decisi on.4

and occupati onal hi sto ry, and the medical tests he ran, Dr. Karlavage concluded that Sou bik “had lung di sease bes t described as pne umo con iosis and I thi nk did have coronary arterydise ase .” He concluded that the pneumocon ios is was cause d by Soub ik’s “expo sure over a severaldecade period. . . to silica, roc k, and coal dust s.” He reconci led thevariabl e resul ts fr om the thre e P FTs with his c onclusi on that Soub ik’s death was substant ially r elat ed to his pneumoconios is, stating that Soubik: has a che st x

- ray that doe s indica te pneumoco n iosis

. His physi cal examination reveal ed, i n my opini on, som e lung disease. The re is variab ility amon g pulmo nary functio n tests that certainly

doe s oc cur
. . .

. [P]ulmonaryfuncti on tests
c an and do change fr o m mo nth to month and fr om year to y ear. So, he was appa rently breath ing a little bi t b ett er m or e r ec en tly.

He also noted a contrary negat ive rea ding of one of the ches t x-r ays indicating th at Sou bik di d no t h ave pne umo co niosis. Howeve r, he explai ned that resul t by noting th e “obvious di screpanci es” in t he doctor’s report

who read the ches t x-r ay as norm al. That doctor

also cl aimed that

the results of aPFT that

was t ake n at

th e s ame ti me as thi s x-ray were ab norma l. Dr. Karlavage al so dis counted the signi ficance of the no rmal PFT in 1985 becausethe doctorwho conducted that test did not accountfor the m edication Soubik was taking and the effect i t would have had on the PFT.
In Februar y 1 995, Dr. Karl avage wro te a letterto M rs. S oub ik’s a ttorn ey. It stated in releva nt part: During that t

ime [in which I tookcare of Mr. Soub ik] , I had the op por tunity to review a positive chest x- ray and an abnorm al pulmo nary functi on t e st. As you are aware, Mr. Soubik expired when he was 74 year s old at the Sha mo kin H ospital. The patient’s death cert ificate indica tes arteriosc leroti c he art diseas e but on furt her in qu iry, the famil y has discovered directlyfrom the atte nding physi cian, that coal work er’ s pne umo c o niosis wa s involved in his death. (sic)

. . . In conc lusion , it is my opin i on, as it

was before, that . . . t he patien t’s dea th
w as substant

ially i ncurred due to co al wo rker ’ s pneumoco niosis. Indeed, he had arteriosclerotic heart disease and nerve block, but there is no doubt in mymind that coal w ork er’ s pneu mo conio sis weakened h im, wo rsened hi s5 condi tion, a n d spe ede d hi s de ath.

b. Dr. Wagner Dr. Wagner treated M r. Sou bik for his heart con di ti on f

ro m M ay 198 4 un til Soub ik’s death, and s igned Sou bik’s d eath certi ficate. 5 Sou bik’s d eath c ertificate liste d his cau se of death as acu te myocardi al infarc tion w ith comp lete heart blockand incl uded cardi ogenic shock
un d er “other significan t conditions.” D r. Wagner was unaware that Sou bik had also been treated by Dr. Karlavage when he sign ed t he certific ate. Nine years after Sou bik di ed, Dr. W agne r wro te a letter in response to an inquiry from Mrs. Soubik. The letter

st ated that, after reviewing Dr. Karlava ge’s medica l re c ords inc luding pu lmonary functi on studi es and x-r ay findings, Dr. W agne r con clu de d that Soubik’ s pulmo nary impairment secondary to his pn eum ocon io s is “coul d have contributed” to the miner’ s c ardiac conditi on and subsequent death. c. Dr . Spa gno lo The OW CP had Dr. Spagnolo, who
was board-certifi ed in internal medi cine
a nd pulmo nary diseases, review Mr. Soub ik’s me dica l histo ry. T hat history include d the PFTs from 1981, 1985, and 1986; two blood gas test s; and two chest xray re adi ngs . Ba sed on his re view of Soub ik’s history, Dr. Spa gno lo concluded that pneumoco niosis w as no t a subs tantially contri bu ting factor t o Soub ik’s dea th, and that there was no
reaso nable evidence t

hatthe miner’s death
was caused by compli ca tions o f pneumoco niosis.
Dr. Spagn olo gave no w eight to Dr. Ka rla vage’s medical opi nion to t he contrary because Spagnolo beli eved that Karlavage had n ot ade quate ly expla i ned the norma l re sults of the pulm onary functi on t ests from 1985 and 1986. 6 He also gave no w eight to D r. Wagn er’s opinion bec ause it was based o n Dr. Karlava ge’s records and also fai led to expla in the normal pulm onary function test
resu lts. Dr. S pagn olo co nclud ed tha t: th e medi calre cor d i n my opinion pr ovid es littl e evidence for the presence of
a pneu mo conio sis. In fa ct, the only B-reader rep ort 7

5 Unlike the other two doctors whose opinions were in the record, D r. Wa gner’s credentials were not speci fied. 6 As noted abo ve, that i s simpl y not true. Dr. Karlavage explai ned the normal results in 1985 byfactoring in the effect of Soubik’s medi cati on.

7 A “ B-re ader” is a per son w ith a signi ficant

levelof quali fication for reading x-ray s, andthis court has gi ven Breaders’ x-rayreadings greate r weightthan readings by less qua lified per son nel. See Lab elle Pro ces sing Co

. v. Sw arr ow , 72 F.3d 308, 310 n.3 ( 3d Cir

. 199 5). O nly
o ne of the peopl e readi ng one of Mr

.6 i ndicat es no evidenc e ofcoal worke r s ’ pne umoconiosi s
. N e verthel e s s , assuming t hat a pneu mo conio sis was present i n Mr

. So ubik, his lu n g fun ction in 1985 and again in March 1986 shortly befo re his death wa s norm al. The norm al arteria l blood gas re sults in 1985 provide f

u rther
s upport for th e conclusi on that M r
. Sou bik had no rm a l lung functi on. Thus, th i s medica l record do es not provi d e reliable evidence of a clinically signi ficant impa i rmentof lung functi on or ev i dence of progress ion of

any lung p roblem at

the ti me of his deat

h. Therefore, eve n if Mr. Soubik had a pneu moconiosis, it did not res ult i n a clinically signi ficant impa ir m entof h is heart or lung. . . . In s umm ary, . . . Mr. Soub ik’s death was not
cau sed by a pne umoconios is. A pneu mo conio sis wa s not a subs ta ntia lly contrib utin g factor leadi ng to h is death and th er e is no reaso nable evidence (includ ing a w ell reasonedmed ical op in i on) that his deat h was caused by
com pli cati o n s o f pneumoco niosis.

2. Lay evidence Ther e were layopinions in the record from M r. Sou bik himself a s well as Mrs

. S oub ik; W alter K oshin skie, the ir neig hbo r and M r. Soubik’s co -work er; John Soubik, t

he Soubiks’ s on; Frank Alberts, Mr. S oubik’s brother -in- law; and Adeline Cecili a Dilliplane, the S oubiks’ dau ght er’s m oth er-in -law

.

a. M r. Sou bik
Mr. Sou b ik tes tifi ed that he had suffereddiffi culty

breathi ng and shortness of breath for “ t he last

15 year s and as the years progress , it

is getting mor e and
mo re.” He stated t

hat ifhe w alked a city blockhe w ould have to stop; that i f he had to walk up or down steps, he ha d to s top severaltimes; and that he coughed u p blackmu cus at nig ht. He also tes tifi ed that he took B rondicon for h is br eathi ng and nitroglyce rin for his h eart. He retired
com ple tely in 1983 due to hi s breathing Soub ik’s chest x- ray s was a B-read er. He concluded th at S oubik’s x- ray did not indicate pneumoconiosis.7

problems, had a heart a ttack in 1984, and never smoked.

b. M rs. So ubik
Mrs. Sou bik testif ie d during t he 1989 hearing on her su rv ivor clai m. She also stated that

her hus ba nd took Brondicon for h is b la ck l ung pr obl em. She state d that it “s ort of lo osen ed up his p hlegm [so] that he had t o spit up. ” Sh e also testified that he to ok medicati on for his heart after hav ing a heart a ttack in 1986, shortly before hi s death. The day he di ed, he became short

of breath and was taken to the h ospit al w here h e w as pu t in
an oxygen tent. H e stayed in the ten t until he died. She also testi fied duri ng the 1997 hearing that s he personal lyobserved her husban d’s breathi ng diffi culty for “a long periodof time” bef

ore his death. Even after he retired from work and started receiv ing Socia l Se curity disab ilit y benefits, he w ould breatheheav ily and spit up blood and mucus eve ry day. The problem wa s particu larly prono unce d in the evening. She also sa w th at, just before his death, he could bar el y wa lk and was very weak. 8

c. W alter K oshin skie Ko shinsk ie te sti fied at the 1989 hearing that hehad known M r. Soubi k for forty years. 9 Soubik had haule d coal for him , and their

homes were close to each otheron t he same street. He noticed that Soub ik’s h ea lth was slipping because Sou bik could not w alk w ell or walk up stairs beca use it wou ld “ta ke h is w ind .” T he day that Soubik died, Koshinsk i e notice d that hewas winded from walking outsi de. d. Jo hn S oub ik John Soubik tes tifi ed at the 1997 heari ng that ev ery time h e cam e hom e to visit his pa rents, he could see h is fath er ’s cond itio n had deteriorated. He observed that his fat her had “consi derably

slowed dow n,” and he ard him make “gasps for air” and have a “trying to c atch h is brea th fee ling .” He also sa w h is fatherraise h is
c hest “likehe was try ing to get air, ” a n d “hold[] on to the bannister a lot going dow n the st airs .” John Soub ik als o took his father

to the hos pitalwhere he was “ho oked. . . up to that breathi ng app aratu s.” e. Fran k A lberts Alb erts testifie d at the1997 hearing that he had kn own Mr. S oubik, his bro therin -l aw, for about 50 years a t the ti me of Soubik’ s d eath i n 1986. Albert s had

8 Mrs . Soubik al so test ifie d that he r brother died of pneumoconiosi s, i .e. black l ung disease, and that she had se en he r brother daily for about 20 years bef ore h is death. Bu t this testimony i s never l inked to any obs ervati ons she made of h e r hus ban d’s il lnes s. 9 He al so test ifie d at theApril 1986 hearing on M r. Sou bik’s c laim, b ut t h at testimony focu sed o n estab li shi ng that S ou bik had worked as a coalminer and hauler
.8

worked with him for about a decade starting in the mi d-1930s. He “coul d s ee [So ubi k] g rad ually sl ow ing dow n. .
. over a period of y ears” an d “co uld se e his breath in g wa s getting slow er. . . and he’d have to figh t for his breath ” starting in about1974 or 1975. He saw Sou bik have troub le catchi ng his bre ath “pr etty reg ular .” Perio d ically, he saw him coughi ng or spitting wh en the y wou ld visit. He noticed that Sou bik h ad trou ble going up the steps in hi s house as he got older. f. Adeli ne Cecil ia Dil li plane Ms

. Dilliplane had know n M r. Soub i k since 1969 when her s on married the Soubiks’ daughter. She stated that M r. Sou bik had troubl e helpi ng her so n bu ild a house. “[H]e would do some thi ng s a nd then he w ould stop b ecause h e’d start wheezing. He’d start coughing. ” She said that she thought

he had breathing pr obl ems com parab le to hers , and she had seri ous pr obl ems with ast

hma. Over ti me, they
saw each other less often bu t re gu lar ly. During visi ts she would he a r him wheeze and “knew he was having a bad.

. . bre athin g pr obl em .” B. The ALJ’s 1997 Decision The ALJ’s 1997 decisi on deny in g bene fits was based on Dr. Spagn olo ’s opinion. The A LJ discou nted D r. Wa gner’s opinion as too vag ue, and he discount ed Dr. Ka rlavag e’s op inio n because i t was based on “the re port of t he miner’s relat

ives that pn eum ocon iosis was involvedin the mi ner ’s d eath” as D r. W ag ner had c onve ye d to the m. TheALJ noted tha t Mr s. Soubik a nd “the m iner’s
so ns and sister-i n-law” had t esti fied that Mr. Soubik had become short of b rea th
over time, but he did no t discuss that evid enc e. C. Soubik I
In Soubik I, we reversed the B RB ’s decisi on affirmi ng the ALJ’s deni al of benefits, and w e reman ded fo r “fu rther
cons id era tion of

t he l ayev i de nc e. ” We agreed with the AL J that the only disp ute
was causati on. Ac cord ingly, M rs. Sou bik had t o e s t ab l i s h t

hat Mr . S oub ik’s de ath
was due to p neu moconiosis , i. e., that p neum ocon iosis “w as a su bstan tially contributing cause or fact or” lea ding to her husban d’s death or t

hat his “death was caused by com pli cations o f pneumoco niosis” under 20 C .F.R . § 718.205 (c). 10 We also concluded that Mrs. So ub ik could prove he r clai m using “medical evidence al one, n on-medical evidence alon e, o r t he combinati on of medical and non-medicalevidence” unde r Hillibush v. Dep’t of

Labor , 853 F.2d 197, 205 (3d Cir . 198 8). Hillibush explic itly held that l ay testi mony must be considered in a survi vor’s ca se under 20 C .F.R . § 718.204.
In the caseat hand , w e held in Sou bik I that nei th erth e ALJ nor

th e BRB

10 In Lukos evic z v . Di re ctor, OWCP , 888 F.2d 10 01, 1004 , 1006 (3d Cir. 1989),
we held that if t

he pneumoconiosi s haste ns death, even briefly, it can be consi dered a subs tantially contrib uting c ause of d eath und er 2 0 C .F.R . § 71 8.20 5(c ).9

had given anyconsider ation to the lay evidence offered i n support of M rs. Soub ik’s clai m, and thi s evidence“cou l d be enough to satisfyMrs. Soubik’s burden of proof that

pneumoconiosis hastened he r husban d’s death. ” We also noted t hat the ALJ and BRB had relied heavi lyon t h e op inion of Dr. Spagnolo, and that he h a d formed his opi nion “based on hi s revi ew of Soub ik’s medical hi story ” rathe r than t he op inions of Soubik’s t

reati ng physi cians , Dr . Ka rlav age and Dr . W agn er. D. The AL J’s 2001 Decisi on on

Remand Upon re ma nd fr om Soubik I, the ALJ summarized the laytestimony in the record. He found that the lay opinio ns did not clearlyest abl ish that M r. Soubik’s ongoing det eriorati on was due t o pneu mo conio sis or a pu lmonaryconditi on. He also d iscusse d eac h ofthe th re e doctors’ opinions again, and reache d th e sa me conclusi on, that Dr. Spagn olo ’s opinion was t

he most pers uasive. The ALJ ag ai n f

oun d tha t Dr

. W agn er’s opinion was “equi vocal and vague” because he m erel y st ated that the pneu mo conio sis “could have contributed” to the miner ’s death, as he had i n 1997

. He also found t

hat Dr. Karl avage’s op inio n was “not welldocu men ted no r we ll reasoned” because “he di d not dis cuss the b asis for [his ] conclus ion [that the mi ner was totall y di sabled from coal mine employment

due to his lung dis ease] given his own dep osi ti on testimony t hat the miner’s pu lm on ar y f

u nction study resu lts from studi es taken i n 1985 and 1986 w ere nor ma l.” He also s t ated that D r. Karlava ge’s Februa ry 22, 1995 le tter establ ished that t

he doctor “ bases h is conclusi on s regardi ng the causeof the miner’s deat h , in part,

. . . only on statements from the miner’s relat ives. ” Th e AL J con clude d that D r
. Spagn olo’s opinion would outweigh the otherdocto rs’ opin ions e ven if they cou ld establ i sh that pne umoconiosis hastened Soub ik’s death because of Dr. Spa gnolo’s superi or c red entials and bec ause “D r. Wa gner. . . di d not treat the miner for respiratory problems and Dr. Karlavage only sa w th e min er on three o ffice visits
over a six m onth perio d.” T he ALJ belie ved that the lay

test i mony was also out we ighed by “t

he thorough and c o mplet e repo rt of

Dr. Spa gno lo .” The AL J descri bed Dr. S pagn olo as both “[a] high ly qualif ied. . . pulm onar y specialist” as w ell
as the benefi ciary

of a completereview of Soub ik’s medical records. The ALJ thus concluded that M rs. Sou bik did not establish pneumoconi o s i s wa s a subs tantially cont ri buting fa ctor i n her husban d’s death or that it h astene d his death, and h e there fore d enie d su rvivor’s benefits.II. St andard of Review
Because th e BR B adopted the AL J’s factu al find ings, w e inde pend ently review the entire record to determi ne if the AL J’s factu al find in g s are ra tional, consistent w ith appl icabl e law, and supporte d by subs tanti al ev idence on the record considered as a w hol e. See M ancia
v. Director, OWCP , 130 F.3d 579, 584 ( 3d Cir. 1997) (citing Kowalchickv. Director,10

OWCP , 893 F.2d 615, 619 (3d Cir. 199 0)). Substantial evidence has been defined as such releva nt evid ence as a rea sona ble mind m ig ht accept as ad equate to su pport
a con clus ion

. Id. We exerci se p lenary review over the ALJ’s legalcon clu sions adopted by the BR B. Id. ; see also Carozza
v. U .S. St

eel Corp. , 727 F.2d 74, 77 ( 3 d Cir . 198 4).

III. Discussi on Mr s. Soubik argues that the ALJ d i d not follow Soubik I

on remand because he fail ed to properlyweigh t he la y evi dence in t he context

of the evi dence as a who le

. She a lso ar gues that

the ALJ did no t prop erly consider the o pinions of Dr. Karlavage and Dr. Wagner. Fi na l ly, assuming we find th ese arg um ents meritorious, she reques ts thatwe grant her BLBA bene fits rather

than remandi ng and
revers ing. A. Weighing the lay evidence
T h e ALJ did consider the lay evidence on remand per our inst ructi ons in Sou bik I . H is opi nion summariz ed what each lay person sai d a nd analyzed its probati ve valu e. The ALJ noted that e ach of the laywitnesses e stabl ished that M r. Sou bik wa s h aving trouble breathing, notice d that M r. Sou bik h ad in c reased t roub le with his breathi ng over ti me, an d
o b served his fr equent coughi ng and spitting up m ucus an d/or bl ood. He then explai ned his rati onale for rejec ting t

he lay
e viden ce. According to t he ALJ, the l ay evidence that Mr. Soubik had breat hing troub le did not es tab lis h tha t pneu mo conio sis was respon si ble for, or a contributing factor to, Soubi k’s breathing impa irmen t. The ALJ c onclude d that Dr. Spagn olo’s opinion regardi ng the cause of Mr. Soubik’s breathi ng problems was more persuasive than these layopinions. B. Weighing the medical evi dence Although the lay evi dence alone did not offer an etiology

of Mr. S oubik’s breathi ng troubles, 11 the A LJ im p rope rly minimizedits signi ficance in weigh ing Dr. Spagn olo’s opinion a n d Dr. K arlavage’s contrary opinion. M rs. Sou bik argues that this was error be cause Dr. Spagn ol o’s conclusi on t h at no pneumoconios is was present co ntradi cted the parties’ s tipul ation to the contrary . She al so argues t hat the ALJ erred in dis c ounting D r. Karlavag e’s opin io n a nd that hemisunderstood the basis of that opi nion. 12

11 The ALJ co uld h ardlyexpect l ay testimon y to est ablis h causati on or eti ol og y. Tha t is beyond the pu rvie w or the competence of l ay witnesses. Such testimony can onlybe expe cted to
corr obo rate certa in sy mptoms an d establishperti nen t behavior or qualit y of lifeissues . Expert

tes tim ony w ill usually be requ ired to e stabli sh the necessa ry r elation ship between suc h observed indici a of pneum oc oniosi s and any underlying pa th ol og y.

12 Mrs. Soubi k al so argu es t hat the ALJ i mp rope rly disregarded Dr. W agner’ s op inion bec aus e it w as c ond ition al. A s noted above, hi s opini on stated that pneu mo conio sis “could” have contributed to Mr. Soubik’s de ath. She cite s to Piney11

In Soubik I we not ed that the ALJ “reli ed heavily” on D r. Spagno lo’s opinion, and th at opin ion w as ba sed so lely
on a r ev iew ofSo ub ik ’s m ed ica l h ist or y. Dr. Sp agn olo nev er sa w M r. S oubik. We thus ra is ed th e AL J’s reliance on D r. Spagn olo’s opinion as an issue, but did not defin itively state that the ALJ had incorr ectly relied on it. Acco rdingly, there is no law of

the caseregardi ng the doctors’ opinions. The Co urt of

Ap peals f or the F ourth Circu it has held t

hat an ALJ may not cre dit
a medical opi nion st ating t hat a cl ai ma nt did not suffer

from pneumoconi osi s causing respiratory disab ility aft er t he ALJ had alrea dy acc epted the presence of pneu mo conio sis un less t he ALJ stated “spe cific and persuasive reaso n s” why he or she rel ied upon such an opini on. Scott v

. Mason Coal Co. , 289 F.3d 263, 269 (4t h Cir. 2002) (i nternalcitation omitted). Like the medical opi nion in S cott , Dr. Spagn olo’s expert opi nion st ates t hat Sou bik did not havepneumoconi o sis desp ite the parties’ agreement t hat he di d. Dr. Sp agnolo’s opinion ca n b e distinguis hed fr om th e opinion i n Scott bec ause h e stated that

even if Soubi k had pneumoco niosis, there i s sti ll no evi dence that it contrib uted to his death. H owe ver, that supe rficial “ hy potheti cal” does not
recon cile his op inion w ith th e sti pulati on that pneum oconiosi s was present

. Co mmon sense sugg ests tha t it is usually
exce eding ly diffic ult for a docto r to prop erly assess the co ntributio n, if any, of pneu mo conio sis to a mine r’s dea th if he/she does not bel ieve it wa s prese nt. The AL J did not exp lain why D r. Spagn olo’s opinion was entitl ed to such control ling we ight de spite Dr. Spagn olo’s conclusi on that Soubi k did not havethe disease that bot

h parti es agreed was pre sen t. Mo reover, on reman d, the ALJ obv iously mi su nde rs to od h ow Dr

. Karlavage arrived at his op inion a nd th is contributed to his improperdiscounting of Dr

. Karlavage’ s conclus ion. The A L J cite d part of Dr. Karlavage’s letter to Mrs. So u bik’s counsel, which stated: “The patient’s de ath cer tifi cate i nd icate s arteriosc lerotic heart di sease but on further in qu iry, the fam ily has d iscov ered d irectly f r om the attending phy sici an, that coal work er’s pneu mo conio sis was invo lved in his dea t h.” T he A LJ th en co nclud es that, M oun tain Coal Co. v. Mays , 176 F.3d 753, 763 (4th Cir. 1999 ). In P iney M oun tain , the court eva luate d a medical opi nion that stated t hat “pneumoconiosi s could be
cons ider ed a complicat ing fact or” in t

he miner’s deat h. The court hel d onlythat such an opinion ne ed not be rej ected, as the peti ti oner argued, stating that “a reasonedmedical opi nion is not rend er ed
a nulli tybecause i t ack no wledges the limits of reasoned medi cal opi nions. ” Id

. How ever, the court

also r ecognized t

hat “unc ertainty is no t pro of, a nd claim ants must prove entit lem ent.” Id . A cc or di ng ly, under Pine y M oun tain , the ALJ was free to minimize the probat

ive va lue of D r. Wa gner’s cond iti on al opin ion b ut he d id not have to re

ject it s olel y be caus e it appe ared to be eq uivo cal.12

since Dr. Karlavagebased his opi nion that pneu mo conio sis contribut e d to Sou bik’s death on inf

ormation from So ub ik’s fa m ily, Dr. Karlavage ’s opini on was not well-reasoned nor well -documented. That conclusi on is not

supporte d by substant ial evid enc e. I n fac t, it is flatly contradi cted by Dr. Karlavage’ s 1986 deposition, which was part of th e record from Mrs. S oubik’s earli er hearings b efore otherAL Js. The de position details D r. Ka rla v age’s examinati on and analy sis of three PFTs, the sa me two chest x- ray s that Dr. Spa gno lo re li ed on, an d hi s o wn personalobse rvation s of th e patie nt. Based on this information, Dr. Karlavage opined in 1 986 that So ubik ’ s pneu mo conio sis adv ance d his death. The languag e in Dr. W agner’s 19 95 letter, written nine y ears after he issued hi s ini tial opinion regardi ng the factor s contributi ng to Soubik’s death, i nd ica tes only that Dr. Wagner la ter a mended his opini on to say that pneumoconi osis could hav e contributed to Soubik’ s death af ter he reviewed Dr. Karlavage ’s rec or ds and opinion. Dr. K arlava ge’s o pinio n was based on much m ore than justthe family’s opinion that pne um o coniosi s haste ned Soub ik’s dea th. It was therefore irrational for the ALJ to disc ou nt Dr. K arlavage’s opinion merely becaus e it refers to Dr. W agn er’s 1 995 letter

. It was al so i mprop er f

or t he ALJ to
as sum e that Dr. Karlavage’ s conside rati on of in formatio n fr om M r. Sou bik’s f amily and others wh o had obse rved him re gularly
was a fail ing. T he A LJ d id no t expla in that assumpti on. He stated onlythat t he layevidence s tand i ng alone does not

provide support fo r the theory t hat pneu mo conio sis hastened or cause d Mr. Soub ik’s dea th. He does not ex plain why he assumed tha t Dr. Karlavage ’s opini on wo uld be worth les s than Dr. Spagn olo’s because Dr. K arl avage took suc h information into accou nt whe n form in g his opinion. Indeed , it seems tha t Dr. Kar la vage’s opinion would be s tronger because it fa ctoredin the l ay obs ervati ons of those who knew Mr. Soubik. 13

13 Mo re ove r, at oralargument the governmentconceded t hat D r. Spa gno lo mighthave com e to a differ ent res ult i f he had th e b en ef

it of th e l ayev id en ce . A s noted above, Dr. Spagnolo concl uded that there was no “reli able evi de nce o f a clinically signi ficant

impairment

of l u ng functi on or evidenc e of progres sion of any lung pro blem at the time of h is de ath.” Yet it i s clear

from the testimony of those who knew Soubik that he w as having an increa singly diffic ult t ime breat hing and regu larly cou ghe d up mu cus
. Mo reover, the tes timon y of thos e w ho k new Sou bik also establ ished t

hat he was pla ced i n an oxy gen tent when l ast admit ted to t h e hospit al and that henever rec overed. The ALJ never expl ai ned why tes timonyas compelli ng as this can be ignor ed in favor of a doctor who opined that Soubik had no “clinica lly significant” lung problems. This is espe cial lytrue whe n that doc tor
neversa w th e pati ent, and allbut ignored the fact that part

ies are assuming t

hat pne umo c onio sis wa s prese nt give n their stipulatio n on this po int.13

Th e AL J also failed to give Dr. Ka rlavage’s opin ion the addit iona l deference it was due as the opini on of a treat ing physi cian. The ALJ stated that he did not cr edi t Dr. Karl avage’s opi nion as that of a tre ating phy sicia n becau se Dr. Karlavage had o nly s een Soubik three ti m es over si x months. That was, of course, three moretimes and s ix months
more tha n Dr. Spa gnolo saw him. So easily minimizing a treating physician’s opinion in favor of

a p hysi cian who has
neverlaid e yes on the p atie nt is no t only i ndef ensib le on this record, i t suggests a n inapp ropria te predis position to deny benefits. It i s well- es ta blished in this circuit that t

reati ng physi cians ’ o pinions
are assume d to be m ore v aluabl e than those of n on- treat ing physi cian s. Man cia v
. Director, OWCP , 130 F.3d 5 79 , 590-91 (3d Cir. 1997). The ALJ nev ertheless ignoredDr. Karlava ge’s clini cal expertis e; an experti se deri ved from many y ears of di agnosing and treating coal miner s ’ pulmo nary pr obl ems . T he AL J did so withoutmaking any effort to explai n why Dr. Spa gno lo’s bo ard ce rtification in pu lmonary medicine was a mor e compelli ng cre dential than Dr. Karlavage’ s many years of “hands on” clini cal traini ng. C. D irecting B LB A b enefits
We turn t o the fi nal is sue that Mrs. Soubik rai ses. She asks us to rema nd th is
case to the B RB solely to direct ent ry of an
awa rd of benefit s based on the inordi nat e dela y in pr ope rl y adj udi cat in g he r c la im. She argues thatallowing he r clai m to drag
on any l onger would be unfai r and inapp ropria te beca use sh e w ould certain ly be grante d compensati on upon remand. 14
We agree that thi s li tigat ion has been unn ecess aril y p rotr acted. We have prev iously expresse d our frust rati on ov er the ineffi ciencyand delaytha t is a ll too often part of

the black l ung administ rati ve process. We have done so in a case w here
a clai mant had been li tigat ing her cl aim for bene fits for seven years, ten fewer years than M rs. S oub ik. M ancia , 130 F.3d at 593 (internal citation omi tted) . In M ancia , we quoted our decis ion in Lango v. Director, OW CP , 104 F .3d 573 (3 d Cir. 199 7) i n noting tha t w e had “previ ouslyexpresse d
our c once rn ov er th e ‘dism ayin g ineffi cienc y’ of the bl ack lun g administ rati ve process. ” 130 F.3d at 593 (quoti ng Lango , 104 F.3d at 575- 76). The delayin Lango w as 14 ye ars , again subs tantially shorte r than th e dela y that Mrs. S ou bi k w as ma de t o e nd ur e. We there gave severa l examples of inord inate

14 Mrs. Soubik al so argued that the delaywas parti cularl y unfair to her because she w as 85 years old , im pl yi ng that she might not live long enou gh to recei ve the be nefits she w as du e if w e did not di re ct

th e BRB to gr an t t

he m. As noted above, Mrs. Sou bik died befor e oral argumentin this cas e. In li ght of her death, we n ee d no t n ow c ons ider this argu men t. It is, how ever, a n all too tragic
exam ple of the ki nd of hardshi p that c an resul t from the all too frequ ent de lay in these cases.14

delayranging f rom ten years 15 to as many
as s eventeen, 16 and even nineteen years. 17 We th en stated, “ [h]o pefu lly, th e publication of o urcon cern wi llcome to the atte ntion of authori ties who c an do something about it .” Lango , 104 F.3 d at 576. We made that statement i n 199 7

. Ye t, even after

that a dmoniti on, it took the BRB two ye ars to re man d this m atter to the ALJ following our remand to th e BRB. We theref

ore have l ittle rea son to think that the del ays that attend bl ack lung litigati on have been mitig a ted or eve n addresse d by the administ rati ve agencies involved. Giv e n our conti nuing concern, we take th e li berty of re iterating at leng th the concerns we expressed i n Lango : We re this the o nly case to
come to our at

tenti on w ith such d elay , we would be incli ned to attribu te it to a rare bur eau crati c sn ag. How ever, we no te th atsom e recent b la ck lun g cas es in t his circuit su gges t that th i s dismay ing ineffi c iency is not unu sua l . . . . A s far as
w e can te ll, it appea rs th a t ma n y cases langu ish w hile
wa iti ng f or an ALJ or the BRB t o hear the m
. Although there m ay have be e n specialcircumst ances in some of these c ases that expla in the d elay, a nd we have not ex haus tiv el y e x amined the records, there is enou gh b asis in th e m ere recit ationof the facts to prompt consider ationby the relevant administrators

. . . . D ela ys are esp ecia ll y signi ficant

for recipients of blacklung be nefit s since most are n earing t

he end of their lives . Clai mants have less time to use the benefits, and th ey often mu st wa it when ill ness is increa sing their expe nses b ut w hile retirementhas reducedtheir income. Wors e, som e may die befo re litigation resolv e s their claim s. Chief Judge Posn er has expres s ed simil ar concerns aboutblack l ung cases i n the Sev enth Cir cuit. In Amax Coal Co . v. Fra nklin , 9 57 F .2d 355, 356 (7th Cir. 1992), he remarked: As so of ten in b la c k lung cases, the proce ssing of the clai m has bee n protr ac ted sca nda lou sly . . . Such delay is no t easy to 15 See Go nza les v . Dir ecto r, OWCP , 869 F .2d 776 (3 d Cir. 198 9).

16 See Keating v. Director , OWCP , 7 1 F.3d 1118 ( 3d Cir. 19 95); Kowalchick v. Director, OWCP , 893 F.2d 6 1 5 (3d C ir. 1990).

17 See K line v. D irecto r, OWCP, 877 F.2 d 11 75 ( 3d C ir. 19 89)

.15 underst and. These
are not big o r complex cas es .
. . . The ty p icalhearing lasts, we are tol d, no
more than an hou r . .

. The delay in pr ocessi ng the s e cl ai ms is espe cially regretta ble because
mo st blac k lun g cl ai ma nts are midd le

aged or elderlyand in poor healt

h, and therefore quite lik ely t o die befo r e recei ving bene fits if their cases are spun out for y ear s. We hope that Congress wil l cons ide r stre amlini ng t h e adjud i c a tion o f d isability bene fit s cases (not l imit ed to blacklung) al ong the lines sugg e sted by the Fed eral C ourts Study C om mitte e
. See the Com mittee’s Report (Ap ril 2 , 1990), at pp. 55-58. 104 F.3d at573-75. Pr otracted delaythat results in claimants not

livi ng long enough to colle ct anybenefit s theymight be enti tl ed to is , in and of its elf, an injus tice that oug ht to be a ddr esse d. Ho wever, the sit uation is ex ac er ba ted by a n exce ptiona lly low rate of agency approval of benefit claims. “According t o one commentatorwho cited offi cialrepo rts to Congress, the approval rate fo r app licants for federalbl a ck lun g ben efits is
exce eding ly lo w. ” Id . at 575-76 (ci ting Timothy F. Cogan, Is the Doctor Hostile? Obstructive Imp airm ents a nd th e H ostility Rule in Federal

BlackLung C laims, 97 W. V A

. L. R EV . 1003, 1004 ( 1995)). The sweat and he alth of mine rs fueled much of the growth of the Ameri can econo my. Itis indeed unf ortun ate tha t they and th eir famili es must als o now endure the kind of administ rati ve or de al e vi de nc ed by M r s
. Soub ik’s attem pt to co llect sur vivor’s benefits. Nevertheless, however frust rati ng this may be, as a court

we can not direct t he aw ard o f blac k lun g ben efits so lely because o f protra cte d a dm in ist ra tiv e d ela y. See M ancia , 130 F .3d at 59 3. Although the length of an y delay is a factor we have often cons id er ed w hen d eterm inin g whe ther to reman d for furt he r consider ationor to d irect be ne fi ts , w e prev iously noted that remand for an award of benefit s is i nappropri ate whe re the record supports confli cting infe ren ces
. Id .; Kowalchickv. Director, OWCP , 893 F.2d 615 , 624 (3d Cir . 199 0). Here, t he unexamined evi dence could support a

finding for or againstMrs. Soubik. If Dr. Karlavage’s opin ion as a treat ing physi cian i s given prop er w eight, and if th e lay evide nce is p rope rly considered, t he record s upports only one resu l t: an award of ben efits to Mrs. Soubik. If, how ever, the ALJ had offered “spe cific and persuas ive rea sons” for16

relying upon Dr. Spagnolo’ s opini on desp ite fin di ng s th at a re co nt ra ry t o the parties’ s tipul ation and the opini on of the treat ing physician, the record w ould support the ALJ’s denial of benefits. The ALJ and BRB have already had th ree chan ces to p rope rly suppo rt a decisi on denyi ng benef it s. Yet t

he decisi on to de n y benef its rema in s unsupporte d by th e r ecord. Thi s, t ogether with the ou trageo us de lay, leads u s to agree that circumstan ces here require that
we direct benefit s on remand. We see no pointin reman ding these issue s for a fourth time when the ALJ and BRB have thus f a r been unabl e to jus tify elevating Dr. Spa gno lo’s op inio n over that of the treat ing physi ci an, the lay evi dence, and the par ties’ o wn stipu latio n. Se e Podedworny v. Ha rris , 745 F.2d 210, 223 (3d Cir. 1984) (concludi ng that “i t wo uld be virtually imp ossib le for th e [government] in a third heari ng to adduce the new voca tional a nd medical evi dence that wo uld be nece ssary to su ppo rt a finding that t

h[e] appell ant is not dis abled” in a soc ial secu rity bene fits case, gi ven signi ficant

“defici encies i n the rec ord and th e fail ure of the [government] to c ur e them in the s econd proceedi ng before the AL J. . . .”).
Dr. Karlava ge’s opinion was based
on actua l treatm ent as w ell as a record
re vi ew. Dr. K arlavage’s clini cal experti se, derivedfr om an extensi ve practice of treat ing miners, the corroborati on of lay te stimo ny, and the stipulat ion of the parties, prov ide m ore th an suffici ent support fo r Mr s. Sou bik’s c laim a bsen t a reasonedexplanation for a con trary finding. 18 Accordingly , we beli eve that Mrs. Soub ik, the ori ginal pe titioner, has establ ished he r e ntitlement to survivo r’s bene fits und er th e B LB A, a nd we will direct that an award of tho se benefi ts be ente red on r em and

.

IV. We will reverse t

he decisi on of the BRB entere d on January8, 20 03, and remand t h e case for an aw ard o f ben efits
as of the appropriatecommencement date. Since this case has been litigated f or ne arly two d e cades al ready , we assume that the BRB w illexpedit e that

award.

RO TH , Circuit

Judge , dis senti ng: My readi ng of the record in this appe a l does not p ersua de m e that it supp orts on ly one re sult - as i s concluded by the M ajority . Nor do I beli eve, pursuant to our standa rd of review – are the ALJ’s factualfi n ding s ration al, consistentwit h applic able l aw, and supporte d by subs tanti al evi denc e o n the record considered as a whole – that the Cou rt is j usti fied i n revers ing the j udgment of the Benefit s Review Board – h owev er much I may fe el per sonal sympathy f or Mrs. Soubik.
I do, however, agree with th e

18 We reach this conclusi on withou t disturbing the AL J’s finding that D r. Wa gner’s opi n ion was too vague to be
use ful.17

majo rit y that the protra cted d elay in resol ving federalblack l ung benefit s cases is re grett able.