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. e du/thir dc ir c uit_1997/269Filed December 2, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97

- 3091

JOSEPHINE MANCIA Widow of

ANGELO MANCIA,

Petitioner

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION

PROGRAMS, UNITED STATES DEPARTMENT OF LABOR

,

Respondent

Petition for Review of an Order of the

Benefits Review Board, United States

Department of Labor

Argued: September 23, 1997

Before: BECKER, SCIRICA and McKEE,

Circuit Judges

(Filed: December 2, 1997)

TIMOTHY G . LENAHAN, ESQ.

LISA G. WILSON, ESQ. (Argued)

Lenahan & Dempsey, P.C.

Suite 400 Kane Building

116 North Washington Avenue

Scranton, PA 18503

Attorneys for Petitioner

J. DAVITT McATEER, ESQ.

Acting Solicitor of Labor

DONALD S. SHIRE, ESQ.

Associate Solicitor for Black

Lung Benefits

CHRISTIAN P. BARBER, ESQ.

Counsel for Appellate

Litigation

JILL M. OTTE, ESQ. (Argued)

U.S. Department of Labor

Office of the Solicitor

Suite N

- 2605Frances Perkins Building

200 Constitution Ave. N.W.

Washington, D.C. 20210

Attorneys for Respondent

OPINION OF THE COURT

McKEE, Circuit Judge.

The widow of a deceased coal miner filed this petition for

review of a decision of the Benefits Review Board in which

the Board affirmed an Administrative Law Judge's denial of

her claim for survivors' benefits under the Black Lung

Benefits Act, 30 U .S.C. SS 901

- 945. For the reasons that

follow, we will reverse the Board's affirmance of the

Administrative Law Judge's decision and direct that

benefits be awarded.

I. BACKGROUND

Angelo Mancia filed two applications for Black Lung

benefits durin g his lifetime. The Department of Labor

denied the first one on September 3, 1980. Subsequently,

Mancia filed a second application, and on April 3, 1984,

Administrative Law Judge ("ALJ") Dunau issued a Decision

and Order awarding Mancia the requested b enefits. The

ALJ found that Mancia proved he had pneumoconiosis,1 a

_________________________________________________________________

1. Pneumoconiosis is defined as:

2

causal relationship between that afflict ion and his eight

years of coal mine employment, and total disability due to

pneumoconiosis.

On August 5, 1990, Angelo's wife, Josephine, discovered

Angelo dead behind the wheel of the parked family car. Dr.

Charles Manganiello, Angelo Mancia's fami ly physician,

signed the death certificate that stated that the immediate

cause of death was cardiopulmonary arrest with underlying

causes of anthracosilicosis with emphysema.

Later that same month, Josephine Mancia filed a claim

for survivor's bene fits with the Department of Labor. The

Secretary administratively denied that claim on February

12, 1991. After the Secretary denied the claim a second

time, Josephine requested that the matter be referred to an

Administrative Law Judge for a hearing, and the claim was

referred to ALJ Ainsworth Brown. Since Mancia had been

receiving black lung benefits at the time of his death, astipulation was entered into that the only issue to be

decided by the ALJ was whether Mancia's death had been

caused by pneumoconiosis as required for survivor's

benefits under 20 C.F.R. S 718.250(c).

The ALJ denied the claim, and Josephine Mancia

appealed to the Benefits Review Board. The Board affirmed

the ALJ's decision. It concluded that the ALJ, "within a

proper exercise of his discretion as a fact finder, . . .

discredited the only medical opinion that could support

claimant's burden," and, therefore, the widow "failed to

establish that pneumoconiosis played any part in the

miner's death. . . ." BRB Decision at 4.

This petition for review followed.

_________________________________________________________________

a chronic dust disease of the lung and its sequelae, including

respiratory and pulmonary impairments, arising out of coal

mine employment. This definition includes, but is not limited to,

coal workers' pneumoconiosis, anthracosilicosis, anthracosis,

anthrosilicosis, massive pulmonary fibrosis, progressive massive

fibrosis, silicosis or silicotuberc ulosis, arising out of coal mine

employment.

20 C.F.R. S 718.201.

3

II. THE PROCEEDINGS BEFORE THE ALJ

Josephine Mancia, and Armand Mancia (the miner's first

cousin), testified before the ALJ. Joseph ine also offered the

deposition testimony of Dr. Charles M. Manganiello, and a

letter from Dr. Manganiello, dated August 26, 1991, in

support of her claims. The Director's evidence consisted

primarily of a report of Dr. Leon Candor whom the Director

h ad retained to render an opinion as to the cause of

Mancia's death. The Director also offered two documents

that had been written by Dr. Manganiello in an attempt to

support Dr. Candor's conclusion, and impeach the contrary

conclusion of Dr. Manganiell o.

A. LAY TESTIMONY

Josephine Mancia testified that her husband had been

awarded black lung benefits in 1984 and that his health

seemed to worsen on a daily basis prior to his death. He

could not breathe well and required assistance doing things

around the house. She also testified that he was so short

of breath that his bed was moved to the first floor as he

could not climb stairs, and he was unable to walk very farbefore complaining of shortness of breath. Hearing

Transcript, at 8

- 9. Mancia saw Dr. Manganiello for his

breathing problems, and was also under the treatment of

another physician for an unrelated skin condition. Id. at 10.2

Josephine testified that her husband never complained of

any chest or heart pain and he was never treate d for a

heart condition. Id.

Josephine further testified that Angelo complained that

he could not breathe well about one week before he died.

Id. at 11. She returned home from a bus trip to Atlantic

City, and found him dead in their car. The motor w as not

running. Id. at 12.

Armand Mancia, testified that he and Angelo were very

close and that they spent a lot of time fishing at a lake in

the summertime. Id. at 14. The cottage where they stayed

was about 200 to 250 feet from a lake. In the year before

_________________________________________________________________

2. That condition was cancer, and all the parties and witnesses agree

that that condition is not implicated in Angelo's death.

4

he die d, Angelo had to stop about half

- way to the lake to

catch his breath. Angelo was able to fish only because the

boat was powered by a motor, and Armand did all of the

casting. According to Armand, Angelo never complained

about chest pain or heart proble ms, nor did he ever tell

Armand he was taking any medication for any heart

condition. Armand testified that during the last years of

Angelo's life he (Angelo) kept "slowing up," that breathing

was a major problem, and that Angelo could not tolerate

an y physical exertion of any kind because of his problem

breathing. Id. at 17.

B. DR. MANGANIELLO'S TESTIMONY

Dr. Manganiello's deposition testimony established that

he had been a licensed physician for 15 years, practicing

general medicine in a reg ion where coal mining was once

the prevalent industry. Approximately 10% of his patients

are former coal miners, and he sees those patients

primarily for anthracosilicosis and anthracosilicosis

- related

problems. He is, however, neither board

- certified nor board

eligible in cardiology, occupational medicine, pulmonary

medicine nor internal medicine. Deposition Transcript, at 7

-

9.

Dr. Manganiello first began treating Angelo Mancia in

1978, primarily for his underlying pneumoconiosis. He sawhim at least three times a year thereafter. Mancia's

medications consisted of bronchodilator therapy and

respiratory treatments, as well as oxygen therapy as

needed. Id. at 13. Dr. Manganiello testified he agreed to

sign Mancia's death certificate at the c oroner's request. Id.

at 14. That death certificate states that the immediate

cause of death was cardiopulmonary arrest with underlying

causes of anthracosilicosis3 with emphysema.

_________________________________________________________________

3. The statutory definition of pneumoconiosis includes anthracosilicosis.

20 C.F.R. SS 718.201 & 727.202. The statutory 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 Processing Co. v. Swarrow, 72 F.3d 308, 312 (3d Cir. 1996).

5

Dr. Manganiello was confronted with Dr. Candor's

conclusion that Mancia died of a heart attack. Candor

based that conclusion partly upon Dr. Manganiello's entry

on the death certificate. Manganiello answered as follows:

No where (sic) in my death certificate or in my opinions

do I feel that I have ever expressed a myocardial

infarction as his cause of death. I'm not sure where

[Candor] extrapolated that type of information. And I'm

not sure from where he draws his conclusion. Mr.

Mancia never had any symptoms related to his heart.

And again, the reason for me stating that Mr. Mancia

died of a cardiopulmonary arrest is because his heart

stopped. Why his heart s topped, in my opinion, was

because of his underlying lung condition. The patient

had difficulty breathing. He had difficulty oxygenating

his heart on the basis of his breathing; and his heart

stopped; not because his heart d eveloped a clot, or he

damaged his heart. He had no symptoms referable to

that. And nowhere could I state that he died of a

myocardial infarction.4 And I don't believe that anyone

could make that statement. So I am not sure where he

extrapolated that information.

Id. at 20

- 21. Dr. Manganiello was also asked about Dr.

Candor's reliance on an April 11, 1991 note written by Dr.

Manganiello. As we discuss below, that note is at the heart

of the ALJ's rejection of Dr . Manganiello's medical opinion

as to the cause of Mancia's death. In that note, Dr.

Manganiello wrote that Mancia had suffered a "heart

attack" which was a "direct result of his severe

anthracosilicosis with emphysema." When asked about thatnote, Ma nganiello stated

I believe there was one report that I had made, trying

to embellish or trying to explain a cardiopulmonary

arrest. And I do believe that that report has been

mistaken and misunderstood. I totally negate th at

_________________________________________________________________

4. Dr. Manganiello explained that a cardiopulmonary arrest is "absolutely

not" the same as a myocardial infarction. The latter is a heart attack,

but the heart does not necessarily stop, and unlike a pulmonary arrest

where the heart stops, many patients survive a myocardial infarction.

Deposition Testimony, at 26

- 7.

6

report. I do not refer to that in any of my thoughts or

an y of my opinions in terms of his cardiopulmonary

arrest. And again, I believe his heart stopped on the

basis of his underlying lung deterioration, and

problems relating to his underlying anthracosilicosis.

Id. at 21.

On cross

- examination, the following exchange occurred

in response to a question about Manganiello's treatment of

diseases related to pneumoconiosis:

Q: Dr., in your testimony this morning, you have

talked about treating Mr. Mancia for his

pneumoconiosis and related diseases. What are those

related diseases?

A: The pneumoconiosis basically; the underlying

infections and problems that he would incur as a

result of his severe lung disease. Recurrent episodes of

bronchitis. Problems such as cor pulmonale, or build

- up of some right

- sided heart failure, on the basis of

severe underlying lung disease; and problems of that

nature. But all related to his lung disease.

Id. at 22.

Manganiello admitted that his reports did not mention

the presence of cor pulmonale and explained that it was not

mentioned because it was "basically [an] office concern[ ],"

which was not necessary to note in a report. Id. at 22

- 23.

You co uld see that the man had some edema of his

legs; some swelling in his abdomen from time to time.

He required some diuretic therapy from time to time for

the treatment of that problem.Id. at 23. Dr. Manganiello further explained that he didn't

think it was necessary to order objective tests to confirm

the presence of cor pulmonale because it can be diagnosed

clinically, and because there is really no treatment for the

condition once it is diagnosed. Id. "I really don't feel th at it

was necessary to do that. I believe that a clinical diagnosis

can be just as well treated in the office, without any of

those studies." Id. at 23.

7

C. DR. MANCIA'S AUGUST 26, 1991 LETTER

Josephine Manc ia also introduced a letter from Dr.

Manganiello, dated August 26, 1991, and addressed "TO

WHOM IT MAY CONCERN." It reads:

Mr. Angelo Mancia was under my care for

anthracosilicosis. I never treated Mr. Mancia for heart

disease or coronary artery disease for that matter.

The death certificate states cardiopulmonary arrest

secondary to anthracosilicosis and there has never

been a statement that his death was related to a

myocardial infarction.

It is therefore my opinion that Mr. Mancia's untimely

death was a direct result of his anthracosilicosis.

D. THE DIRECTOR'S EVIDENCE BEFORE THE ALJ

The Director's evidence in opposition to the widow's claim

consisted of a two

- page r eport of Dr. Leon Candor,5 and the

aforementioned April 11, 1991 note from Dr. Manganiello.

Dr. Candor never examined the miner. His report was

based entirely upon his examination of certain medical

records and the results of tests that Dr. Manganiello and

other physicians had performed over the years. The

Director also introduced the death certificate into evidence.

Dr. Manganiello's April 11, 1991 note is addressed "TO

WHOM IT MAY CONCERN." The entirety of that note is as

follows:

In m y opinion Mr. Angelo Mancia (sic) heart attack

was a direct result of his severe anthracosilicosis with

emphysema which hastened or progressed his

underlying coronary artery disease.

Dr. Candor's report details the various medica l records

he reviewed. They include x

- rays and the results of tests

that had been performed on Mancia during his lifetime.Based upon his review of those records, Dr. Candor

concluded:

_________________________________________________________________

5. The Director's Brief states that Dr. Candor is a Board

- certified

internist. Director's Br. at 5. However, the ALJ's Decision recites that

Dr.

Candor is Board

- eligible in pulmonary medicine. ALJ's Decision at 3.

8

1. As noted in Dr. Manganiello's letter of 4/11/91, the

immediate cause of Mr. Mancia's death on 8/5/90 was

an acute myocardial infarction with resultant

cardiopulmonary arrest. The myocardial infarction

(heart attack) was caused by underlying coronary

artery disease.

2. The patient's coronary artery disease with resultant

myocardial infarction were casually unrelated to

pneumoconiosis.

3. Despite Dr. Manganiello's sta tement in his letter of

4/11/91, I know of no scientific evidence which

indicates that anthracosilicosis or emphysema hasten

the progress of coronary artery disease.

4. The normal arterial oxygen tension at rest and

during exercise makes it most unlikely that the

patient's chronic lung disease had any effect upon

cardiac rhythm and function.

5. The available information provides no evidence that

Mr. Mancia's chronic lung disease was a substantially

contributing cause to his death caused by acute

myocardial infarction or hastened his death.

E. THE ALJ'S DECISION

The ALJ focused on two aspects of Manganiello's

testimony and letters in denying the widow's claim. T he ALJ

was clearly troubled by Manganiello's assertion that Mancia

suffered from cor pulmonale. The ALJ noted that

Manganiello's letters did not mention cor pulmonale but

that Manganiello did, nevertheless, testify at his deposition

that the miner suf fered from cor pulmonale. ALJ's Decision

at 3. The ALJ rejected Dr. Manganiello's explanation of the

apparent contradiction. The ALJ concluded that

Manganiello simply assumed that black lung disease played

a part in the miner's death, and found that Ma nganiello's

opinion was not well

- reasoned, not supported by objective

means and not based on competent medical evidence. TheALJ concluded that Dr. Manganiello "responded

disingenuously that the condition `. . . basically were office

concerns; not . . . things that I felt needed justification in

9

these types of letters.' . . He stated that he did not believe

that objective testing was necessary." ALJ's Decision at 3.

The ALJ was also troubled by Manganiell o's April 11,

1991 note and the doctor's repudiation of it. The ALJ was

not convinced by Dr. Manganiello's explanation that he

"over embellished [him]self a bit" in the note. Deposition

Transcript, at 28. The ALJ wrote:

Thus, after writing a note containing a premise Dr.

Manganiello pulls the rug out by withdrawing the

premise of a heart attack. By withdrawing the letter of

April 11, 1991 the doctor inferentially, at least,

concedes being less than candid.

AL J's Decision, at 3.

The ALJ relied upon Dr. Candor's conclusion that Mancia

died of a myocardial infarction unrelated to his chronic

lung disease, and he (the ALJ) concluded that Manganiello's

testimony to the contrary was merely an assumption that

the miner's lung disease played a role in his death.

When one views Dr. Manganiello's "rationale" as

expressed at his deposition it amounted to nothing

more that the doctor assumed that the progressive

subjective breathing symptoms were attributable to

Black Lung, and that, therefore, when the miner was

found dead that Black Lung must have contributed to

his death. . . . The most reasonable observation to

make is that Dr. Manganiello merely a ssumed that

Black Lung played a part in death. His opinion is not

well

- reasoned or supported by an objective means and

is not found to be based on "competent medical

evidence" 20 C.F.R. 718.205(c)(1)(2).

Id. Thus, the ALJ ruled that there is "no credible basis to

conclude that coal worker's pneumoconiosis played any

part" in the miner's death. Id. at 4.

The Director now argues that the ALJ weighed

Manganiello's opinion that pneumoconiosis played a part in

the miner' s death and Candor's opinion to the contrary and

simply made a credibility determination that we ought not

overturn.10

The Board affirmed the ALJ's decision ruling that the ALJ

properly exercised his discretion as a fact

- finder and

"discredited the only medical opinion that could support

claimant's burden." BRB's Decision at 4.

III. SCOPE OF REVIEW

We must examine the entire record and determine if the

ALJ's decision is supported by substantial evidence

.

The Board is bound by the ALJ's findings of fact if they

are supported by substantial evidence. Our review of

the Board's decision is limited to a determination of

whether an error of law has been committed and

w hether the Board has adhered to its scope of review.

In doing so, we must independently review the record

and decide whether the ALJ's findings are supported

by substantial evidence. Substantial evidence has been

defined as more than a mere scintilla. It means such

relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.

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

1990) (citations and internal quotations omitted ).

IV. DISCUSSION

Josephine Mancia's claim for survivor's benefits was filed

in August of 1990.6 Thus, it was adjudicated under the

regulations found at 20 C.F.R. S 718.2.7 Under 20 C.F.R.

S 718.205(a), benefits are provided to "eligible survivors of a

miner whose death was due to pneumoconiosis." The

_________________________________________________________________

6. January 1, 1982, was the effective date of amendments to the Black

Lung Benefits Act. Had Josephine been awarded benefits pri or to the

effective date of the amendments, she would have been entitled to

derivative benefits based upon the benefits that had been awarded to

Angelo during his lifetime. However, after the amendments became

effective, a miner's survivor had to prove that the miner's death was

caused by pneumoconiosis. Accordingly, Josephine must establish the

cause of Angelo's death without relying upon his eligibility for benefits

during his lifetime. See Pothering v. Parkson Coal Co., 861 F.2d 1321 (3d

Cir. 198 8) for a general discussion of the 1981 amendments.

7. 20 C.F.R. Part 718 governs all claims filed after April 1, 1980.

11applicable regulations further provide that a miner's death

will be "considered to be d ue to pneumoconiosis" if any of

the following criteria are met:

(1) Where competent medical evidence established

that the miner's death was due to pneumoconiosis, or

(2) Where pneumoconiosis was a substantially

contribu ting cause or factor leading to the miner's

death or where the death was caused by complications

or pneumoconiosis, or

(3) Where the presumption set forth at S 718.304 is

applicable.

20 C.F.R. S 718.205(c); Director, OW CP v. Siwiec, 894 F.2d

635, 638 (3d Cir. 1990).

Josephine Mancia conceded that the S 718.304 8

presumption does not apply to her claim. The Director

conceded that, during his lifetime, the miner suffered from

pneumoconiosis arising out of his coal m ine employment.

Consequently, the ALJ only had to decide "whether the

miner's death was caused by pneumoconiosis as required

by 20 C.F.R. S 718.205(c)." Director's Br. at 3. Thus,

Josephine Mancia had to demonstrate by a preponderance

of the evidence that her husband's death was hastened by

pneumoconiosis. Director, OWCP v. Greenwich Collieries,

512 U.S. 267 (1994). "[A]ny condition that actually hastens

death is a substantially contributing cause of death within

the meaning of [20 C.F.R. S 718.205 (c)(2)]." Lukosevicz v.

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

The ALJ discredited Manganiello's testimony because of

his "failure" to document cor pulmonale, his April 11, 1991

note, and his repudiation of it. However, based upon our

i ndependent review of the entire record we conclude that

the ALJ's rejection of Dr. Manganiello's conclusion is not

supported by substantial evidence. Accordingly, we disagree

with the ALJ's rejection of Manganiello's conclusion that

Mancia's death was caused by Black Lung Disease.

_________________________________________________________________

8. 20 C.F.R. S 718.304 lists those circumstances which create an

irrebuttable presumption of total disability or death due to

pneumoconiosis.

12

A. COR PULMONALECor pulmonale is a cardiovascular disease and is defined

as:

Right ventricular (RV) enlargement secondary to

malfunction of the lungs, producing pulmonary artery

hypertension t hat may be due to intrinsic pulmonary

disease, an abnormal chest bellows, or a depressed

ventilatory drive. The term does not include RV

enlargement secondary to left ventricular (LV) failure,

congenital heart disease, or ac quired valvular heart

disease. CP is usually chronic but may be acute and

reversible.

THE MERCK MANUAL, Cardiovascular Disorders, 16th ed.

(1992). The most common cause of cor pulmonale is

"chronic obstructive pulmonary disease (chroni c bronchitis,

emphysema)." Id. Cor pulmonale has been associated with

pneumoconiosis as an end

- stage complication. See , e.g.,

Kusiak, R., Liss, G. M. & Gailitis, M. M., Cor Pulmonale and

Pneumoconiosisconiotic Lung Disease: An Investigation Using

Hos pital Discharge Data, 24(2) Am. J. Ind. Med. 161 (1993)

(This study found that cor pulmonale was diagnosed 17

times more frequently than expected among men diagnosed

with pneumoconiosis than among other men admitted to

the authors' hospital). Thus, giv en Mancia's undisputed

medical history of emphysema and pneumoconiosis, it

would not be unusual if he also suffered from cor

pulmonale. Part 718 of the applicable regulations

specifically refer to the relationship between

pneumoconiosis and cor pulmon ale.

We have previously stated that

"[t]he report of a physician about a miner's degree of

disability. . . may have a great deal of significance even

if a report lacks full documentation. The report does

not necessarily indicate the information upon which

the physician relied. It is often buttressed by deposition

testimony. . . . For example, the Director informs us

that an x

- ray is not normally relevant to the degree of

disability. If the physician's report fails to mention an

x

- ray, therefore, that failing should not normally affect

13

the credibility of the physician's finding of total

disability.

Director, OWCP, v. Mang ifest, 826 F.2d 1318, 1327 (3rd Cir.

1987).

Since cor pulmonale is so commonly associated withpneumoconiosis, it is not illogical that a treating physician

did not document that condition in a miner suffering from

black lung disease. This is especi ally true since Manganiello

testified without contradiction that he couldn't treat that

condition. The ALJ made his credibility determination

based solely upon a reading of the transcript without the

advantages that would come from viewing a witness as he

or she testifies, and the Director offered no evidence to

rebut Manganiello's testimony that Mancia did suffer from

cor pulmonale.

Dr. Candor's report does not comment upon the presence

or absence of cor pulmonale. The ALJ's conclusion that

Man ganiello's testimony regarding the presence of cor

pulmonale was "disingenuous" amounts to little more than

the ALJ substituting his own medical assessment for that

of the treating physician. This record does not support the

ALJ's jaundiced view of Man ganiello's testimony regarding

Mancia's cor pulmonale. The ALJ placed too much reliance

upon the treating physician's failure to order diagnostic

tests absent some medical evidence that diagnostic tests for

cor pulmonale were necessary. The ALJ's analy sis compels

a treating physician to order diagnostic tests which the

physician feels are not needed merely to provide "objective

tests" that will satisfy an ALJ at a possible subsequent

administrative hearing.

B. THE DEATH CERTIFICATE

During his deposition, Manganiello explained that he

enters cardiopulmonary arrest as the cause of death on

90% of his death certificates. He added:

I'd probably put [cardiopulmonary arrest] on 100% of

them, but I just sometimes run into the same problem

. . . we're into right now. I'm just not sure what

the big stigma is about cardiopulmonary arrest.

14

Cardiopulmonary means that the heart has to stop, as

far as my opinion go es. And maybe I'm just signing my

death certificates inappropriately. But I just feel that

your heart stops. And why does your heart stop? It

stops because some condition causes it to stop. That's

why I sign them that way. I t's my usual customary

practice.

Id. at 26. He remained emphatic on cross

- examination, and

he steadfastly insisted that Mancia did not die because of

a heart attack.In Smakula v. Weinberger, 572 F.2d 127 (3rd Cir. 1978)

we noted the commo n practice of completing death

certificates in this manner. There, a miner died suddenly,

and his widow applied for survivor's benefits alleging that

the miner's death had been caused by black lung disease.

The ALJ ruled that the widow had established causation,

but the Appeals Council, acting for the Secretary, reversed,

and the district court entered summary judgment for the

Secretary. On appeal, we remanded with directions to

award widow's black lung benefits as the reversal of the

ALJ's determi nations had not been based upon substantial

evidence. The death certificate there stated that the miner

died from "coronary occlusion." That was the only cause of

death given on the death certificate. We noted, however,

that the entry on the certificat e was "sparse and unverified

by clinical findings [and that] testimony at the hearing cast

grave doubt on [the certificate's] reliability." Id. at 131. The

mortician who arrived at the scene within 15 or 20 minutes

of the miner's collapse testified tha t he took a death

certificate to a local physician who "filled in`coronary

occlusion' as the cause of death, signed the certificate, and

handed it back to [the mortician]" Id. at 132. That doctor

had never examined the miner, and had no basis for

conc luding that his cause of death was as stated on the

death certificate. In affirming the ALJ's determination that

the widow had established that the miner's death was

caused by black lung disease despite the contrary

statements on the death certificate we accepted the

mortician's explanation that, "in his experience,. . .

standard procedure by the coroner's office was not to

bother with examination of the bodies and perfunctorily

attribute cause of death to a heart attack." Id.

15

In Hillibush v. Benefits Review Board, 853 F.2d 197 (3rd

Cir. 1988), we stated

We have previously determined that a death certificate

listing "coronary occlusion" and neither listing any

other contributing conditions, nor indicating that an

autopsy or other physical examination had been made

of the body, is inherently unreliable and does not

constitute substantial evidence that the miner died of

a coronary occlusion for purpos es of determining a

widow's entitlement to black lung benefits. In that case

there was testimony that it is common practice, absent

an autopsy, for coroners to enter coronary occlusion as

the cause of death of miners.

853 F.2d at 204. We ruled "[w]e hold that in the absence of

an autopsy, a death certificate may not be used to precludeinvocation of a presumption of a totally disabling

respiratory or pulmonary impairment." Id.

Although this case is distinguishable, o ur holding in

Smakula and Hillibush is instructive in assessing the

probative value of Manganiello's statements on the death

certificate, and his credibility in explaining the entry. There,

as here, there was lay testimony about the deceased

miner's d ifficulty in breathing, and the degree to which that

difficulty appeared to compromise his health and limit his

daily routine. Similarly, there, as here, "no doctor had ever

attributed her husband's progressive respiratory difficulties

to a heart ailme nt." Smakula, 572 F.2d at 133. More

importantly, here, Dr. Manganiello related Mancia's stopped

heart to his pneumoconiosis on the death certificate. "[T]he

fact that the immediate cause of death was cardiac arrest

does not preclude the possibility tha t the miner had a

respiratory or pulmonary impairment; the two conditions

are not inconsistent with each other."9 Id.

_________________________________________________________________

9. Dr. Manganiello explained that coronary artery disease is not related

to pneumoconiosis and that pneumoconiosis does not cause coronary

artery disease, although it could be a risk factor for coronary artery

disease. Deposition at 29.

16

C. THE APRIL 11, 1991 NOTE

Mancia 's cryptic note of April 11, 1991, is far more

troubling. Although the ALJ was not required to accept

Manganiello's explanation of the contents of that note, nor

his repudiation of it, the ALJ was not free to ignore the

totality of the "objective evide nce" that he complained was

lacking, and the lay corroboration of that evidence, and give

inappropriate weight to that note. The objective tests that

were performed, the testimony of Mancia's treating

physician, and the uncontradicted testimony of Jose phine

and Armand Mancia all clearly establish that Mancia never

complained of, and was never treated for, any heart

problem. Similarly, as is discussed more fully below, Dr.

Candor ignored Mancia's entire medical history in order to

focus upon the 27 word note written in unexplained

circumstances. Candor concluded that Mancia died of a

heart attack unrelated to his black lung disease even

though there is no evidence that any of the numerous

objective tests that were performed in the 12 years

prece ding Mancia's death suggested a heart problem.

Josephine testified that a week before his death her

husband, "was telling [her] that he couldn't breathe and hewas to go to Manganiello. And when he couldn't breathe, he

used to get like white to his f ace". Hearing Transcript, at

11. There was no mention of chest pain. Similarly, as noted

above, Armand testified that "[h]is breathing was his major

problem; shortness of breath, really. He couldn't do any

physical exertion of any kind." Id. at 17. Aga in, there was

no suggestion of chest pain or related heart problems. The

ALJ simply ignored this testimony and relied completely

upon the non

- treating physician's unsupported conclusion

that Mancia died of a heart attack.

In Hillibush, the ALJ ignor ed lay testimony describing the

problems the miner had breathing, and his difficulty with

exertion shortly before his death. We ruled that it was error

for the ALJ to conclude that the miner died of a heart

attack despite such lay testimony merely beca use of the

unsubstantiated entry to that effect on the death certificate.

We realize that the regulations in effect when we decided

Hillibush specifically provided that the finding of causation

in a survivor's claim should be made based upon a

17

consideration of "all relevant evidence." Id. at 202,10 while

the current regulation is more restrictive. See 20 C.F.R.

S 718.205(c). However, the change in the regulation does

not allow the ALJ to ignore uncontradic ted relevant lay

testimony where it corroborates the medical testimony of a

treating physician and is consistent with the medical

records.

Indeed, the ALJ's only explanation of his rejection of Dr.

Manganiello's conclusion that Mancia died because o f his

black lung disease is as follows:

When one views Dr. Manganiello's "rationale" as

expressed at his deposition it amounted to nothing

more than the doctor assumed that the progressive

subjective breathing symptoms we re attributable to

Black Lung, and that, therefore, when the miner was

found dead that Black Lung must have contributed to

his death. . . . The most reasonable observation to

make is that Dr. Manganiello merely assumed that

Black Lung played a part in death. His opinion is not

well

- reasoned or supported by any objective means and

is not found to be based on "competent medical

evidence." 20 C.F.R. S 718.205(c)(1)(2).

ALJ's Decision at 3.

H owever, Dr. Manganiello explained his "assumption" as

follows:I mean, the cause of death, as far as I am concerned,

is the contributing factor that made his heart stop; and

that is the antracosilicosis. Nowhere on that death

certificate does it state anything more than that.

* * *

The rational behind that was the fact that he had

_________________________________________________________________

10. We stated that "30 U.S.C. S 932(b) (1982) required that [ i]n

determining the validity of claims under this part, all relevant evidence

shall be considered, including where relevant, medical tests such as

blood gas studies, . . . [and] evidence submitted by the claimant's

physician, or his wife's affidavits, and in the case of a deceased miner,

other appropriate affidavits of persons with knowledge of the miner's

physical condition, and other supportive materials." Id. at 202.

18

ongoing problems related to hi s lung disease. And he

had ongoing symptoms revealing that he was

deteriorating from his lung condition. And he had no

other symptoms, and no other problems that would

cause his untimely death. Therefore, my rationale is

that it is his underlying lung disease that caused his

death.

Deposition Transcript, at 19.

D. THE STANDARD FOR EVALUATING

MEDICAL TESTIMONY

In Kertesz v. Director, OWCP, 788 F.2d 158 (3d Cir.

1986), we discussed the general principles by which an ALJ

must evaluate medical evidence. We wrote:

In reaching a decision, an ALJ should set out and

discuss the pertinent medical evidence presented. The

ALJ is not bound to accept the opinion or theory of any

medical expert, but may weigh the medical evidence

and draw its own inferences. Moreover, the ALJ should

reject as insufficiently reasoned any medical opinion

that reaches a conclusion contrary to objective clinical

evidence without explanation.

In weighing medical evidence to evaluate the

reasoning and credibility of a medical expert, however,

the ALJ may not exercise absolute discretion to credit

and discredit the expert's medical evidence. [A]n ALJ is

not free to set his own expertise against that of aphysician who presents competent evidence.

Id. at 163 (citations and internal quotations omitted).

Moreover, "[a] testifying physician need not express his

conc lusions in terms of `reasonable degree of medical

certainty' to be credited by the ALJ; the ALJ must instead

accept a `documented opinion of a physician exercising

reasoned medical judgment' ". Tennessee Consolidated Coal

Co. v. Crisp, 866 F.2d 179, 18 5 (6th Cir. 1989).

Although an ALJ may properly reject a medical opinion

"that does not adequately explain the basis for its

conclusion," Risher v. OWCP, 940 F.2d 327, 331 (8th Cir.

1991); see also, Brazzalle v. Director, OWCP, 803 F.2d 934,

19

936 (8th Cir. 1986), the ALJ is not free to do so merely

because he or she interprets the medical opinion as an

assumption. The ALJ's rejection of Dr. Manganiello's

opinion as an "assumption" imposes a requirement ak in to

a reasonable degree of medical certainty that is not required.11

In basing his opinion upon a single cryptic note and

ignoring the contrary medical evidence (corroborated by

uncontradicted lay testimony) that Mancia was not

suffering from heart problems at the time of his death, the

ALJ rejected a medical opinion that was consistent with,

and corroborated by, the results of Mancia's pulmonary

function exams, and his x

- rays. Dr. Manganiello explained

the basis of his conclusion that Mancia did not die of a

heart attack. Based upon this record, the ALJ could not

simply reject that reasoned assessment of the cause of

Mancia's death by labeling it an "assumption."

The "assumption" which so concerned the ALJ was a

hypothesis based upon Manci a's medical history, and Dr.

Manganiello's treatment of Mancia during the 12 years

leading up to his death. There is nothing inconsistent

between such an "assumption", and reasoned medical

judgment.

Reasoned medical judgment has been defined in

personal injury cases as a hypothesis representing a

physician's professional judgment as to the most likely

one among the possible causes of the physical

condition involved. This definition has been accepted in

l itigation under the Black Lung Benefits Act.

Brazzalle v. Director, OWCP, 803 F.2d 934, 936 (8th Cir.

1986) (internal quotation marks and citations omitted).

_________________________________________________________________11. See Plesh v. Directo r, OWCP, 71 F.3d 103 (3rd Cir. 1995); Drummond

Coal Co. v. Freeman, 733 F.2d 1523, 1526 (8th Cir. 1984) (reasoned

medical judgment is all that is required, and opinions need not be

expressed in terms of reasonable degree of medical certainty); Peabody

Coal Co. v. Helms, 859 F.2d 486, 489 (7th Cir. 1988)(same). Although

these, and other cases cited therein, address the"reasoned medical

judgment" standard as it relates to the presumption that arises under 20

C.F.R. S 725.203(a)(4), we see no distinctio n between that standard and

the "reasoned medical judgment" necessary to establish entitlement to

survivor's benefits here.

20

Moreover, a physician's medical judgment, even if based

on instinct, "is nonetheless grounded in years of

experience" and has a "great deal of significance." Director,

OWCP v. Mangifest, 826 F.2d at 1327. In Mangifest we

stated

[l]ike other judgments, a medical judgment is

sometimes based upon instinct, the unarticula ted and

unarticulable opinion that is nonetheless grounded in

years of experience. Apparently out of respect for this

medical intuition, the regulations permit an ALJ tofind

total disability on the basis of medical judgments even

if the medical tests are inconclusive.

826 F.2d at 1327. In Mangifest, a miner seeking disability

benefits submitted several reports from various physicians

that did not meet the regulatory requirements for valid

medical tests. We held that "a medical judgment contained

in a noncomplying report may constitute substantial

evidence of disability if, . . . it is reasoned and based on

medically acceptable clinical and laboratory diagnostic

technique. . . . The ALJ must base this determin ation on all

the facts of the case." 826 F.2d at 1327. Here, although the

ALJ questioned Manganiello's credibility regarding his

explanation of the April 11 note, the ALJ did not doubt that

Manganiello believed that Mancia died of pneumoconiosis.

Rath er, the ALJ rejected Manganiello's belief as a mere

"assumption." However, that "assumption" was a medical

opinion regarding his patient of 12 years, and is supported

by Mancia's pneumoconiosis, and the lay testimony.

Accordingly, it was not only unfai r for the ALJ to disregard

the treating physician's medical opinion as merely an

"assumption," it was error to do so. Indeed, "assumptions"

based upon a patient's medical history, and confirmed

diagnosis can constitute the required "objective medical

means" that the ALJ mistakenly concluded was lacking in

this case. Moreover, the ALJ selectively labels Dr.

Manganiello's opinion an "assumption" but does not explain

why Dr. Candor's contrary opinion of the cause of Mancia'sdeath is not also an "assu mption."

This case is unlike Lango v. Director, OWCP, 104 F.3d

573 (3d Cir. 1997), where the miner's treating physician

merely made conclusory statements as to the miner's cause

21

of death. Here, Manganiello explained the basis for his

opinion. With the exception of the April 11, 1991 note,

Manganiello clearly, consistently and unwaveringly opined

that the miner's chronic lung disease led to his

deteriorating medical condition and, ultimately, to his

deat h.

Moreover, and most importantly, the issue here is

whether the pneumoconiosis that so gravely afflicted

Mancia "even briefly" hastened his death. Lukosevicz, 888

F.2d at 1004. Thus, even assuming that Mancia did suffer

a heart attack despite the a bsence of objective evidence that

he did, the ALJ ignores Dr. Manganiello's uncontradicted

testimony that Mancia's pneumoconiosis would still have

hastened his death. Manganiello was asked a hypothetical

question as to whether Mancia's underlying lung disease

would have had any effect on his ability to survive a heart

attack if he had suffered one. He responded:

if someone had underlying heart disease and lung

disease, as opposed to someone just having underlying

heart diseas e and no lung disease; and if indeed they

had a myocardial infarction, what would be your

chances of surviving a myocardial infarction or a

purely heart related death, given no lung disease, and

then given the type of lung d isease that Mr. Mancia

had. And in that frame of reference, I believe that Mr.

Mancia, given his significant lung diseases that we are

talking about, I believe that he would have a much less

chance of surviving a myocardial infarction or a heart

- related death than another person without that type of

disease. . . . But again, I don't believe that that relates

to Mr. Mancia's case. And I don't believe Mr. Mancia

suffered from any underlying hear t disease; and I don't

believe that he died of a myocardial infarction.

* * *

I believe that he would have a much more difficult time

surviving a myocardial infarction, given his underlying

lung disease, pneumoconiosis, to whatever degree. Just

because he would be unable to sustain a good

oxygenation of his heart. And further improvement of

heart function, in the face of heart damage, would22

requi re good stable lungs, good oxygenation to pull him

through an event. Given his underlying lung condition,

he would have a much more difficult time and run the

higher risk of arrhythmias, skipped beats, and further

deteriorat ion of his heart, on the basis of his lungs not

being able to keep up to an ongoing deterioration

caused by an acute myocardial event.

Deposition Testimony, at 32

- 3. Manganiello added that his

answer to the hypothetical would be the sam e if he

assumed Mancia had a "totally disabling pneumoconiosis

as determined by the Department of Labor" as if he had

severe pneumoconiosis. Id. at 32. Manganiello's response is

consistent with the regulations. 20 C.F.R. S 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 feas ible to distinguish which disease caused

death or specifically how much each disease

contributed to causing death.

E. DR. CANDOR'S REPORT

Dr. Candor's report is the only medical conclusion

consistent with the ALJ's finding that Manci a's death was

not caused by complications related to his black lung

disease. Absent that report, the record reflects only the

ALJ's conclusion that Manganiello's opinion is not well

reasoned, and the ALJ's concern that Manganiello's opinion

is not cor roborated by objective evidence. Accordingly, we

examine Dr. Candor's report to determine if the ALJ's

conclusion is properly supported by substantial evidence in

the record.

As noted above, Dr. Candor was a non

- treating physician

who was hired by t he Director to review the miner's medical

records. In a different context, we have held that the

opinion of a miner's treating physician "play[s] a major role

in the determination of eligibility for black lung benefits."

Schaaf v. Matthews, 574 F.2d 15 7, 160 (3d Cir. 1978); see

also Lango v. Director, OWCP, 104 F.3d at 577 ("[T]he

23treating physician's opinion merits consideration.").

Nonetheless, "the opinion of a non

- examining physician in

a black lung ca se may in some circumstances have

probative worth supporting substantial evidence," Evosevich

v. Consolidation Coal Co., 789 F.2d 1021, 1028 (3d Cir.

1986).

In Evosevich, the coal company opposing the miner's

black lung claim hired two physicians. O ne physician

personally examined the miner and, on the basis of that

examination, concluded that the miner was not disabled.

The other physician hired by the company opposing the

payment of benefits did not examine the miner but instead

based his opin ion that the miner was not disabled on the

basis of his review of the records. The ALJ found that the

opinions of both physicians were sufficient to rebut the

interim presumption of disability under the applicable

regulations. On appeal, the miner argu ed, inter alia, that

the ALJ erred by according substantial weight to the

opinion of the non

- examining physician. We disagreed.

However, in Evosevich, the ALJ used the opinion of the

non

- examining physician to corroborate the opinion of the

examinin g physician. Id. at 1028. He did not use it by itself

to defeat the miner's claim. Although there may be

situations where the nature of a non

- treating physician's

report is sufficient, in context with all the other evidence in

the case, to support a co nclusion that is contrary to the

opinion of a treating physician, this is not such a case.

Candor's report was the Director's case. See Hearing

Transcript at 20 ("Your Honor, the Director relies on Dr.

Candor's (sic) report, which states that pneumocon iosis,

which Mr. Mancia did have, did not in any way contribute

to or hasten his death.") (emphasis added).

In his report, Dr. Candor criticized Dr. Manganiello. Dr.

Candor stated: "[d]espite Dr. Manganiello's statement in his

letter of 4/11/91, I k now of no scientific evidence which

indicates that anthracosilicosis or emphysema hasten the

progress of coronary artery disease." See P 3, Candor's

Report. However, Dr. Manganiello testified in agreement

with Dr. Candor thus further undermining the ve ry

document that Candor's report is based upon. During

Manganiello's deposition, the following exchange occurred:

24

Q: Is coronary artery disease related to

pneumoconiosis?

A: No, not re ally.Q: So pneumoconiosis does not cause coronary artery

disease?

A: No. It could be a risk factor, I would imagine. But,

to my knowledge, no.

Id. at 28

- 29. Thus, both physicians agree that

anthracosilicosis does no t cause or contribute to coronary

artery disease.

The ALJ rejected Dr. Manganiello's medical conclusion

because it was not supported by objective evidence. Yet, the

objective evidence on this record contradicts Candor's

report. Dr. Candor's report s tates that his review of

numerous x

- rays "indicates a negative finding" for

pneumoconiosis. He notes: "[a]lthough the chest x

- ray of

9/20/82 was positive for simple pneumoconiosis, 12 the

chest x

- rays of 8/1/80, 12/21/88 and 2/21/89 were read

negative for pneumoconiosis by separate and different B

readers. In addition the latest x

- ray report (4/25/90) was

read negative for pneumoconiosis by a field reader."

Candor's Report at 1. Yet, as noted above, the Director

concedes that Manganiello had pneum oconiosis. Moreover,

our review of the x

- ray reports in the record from the

hearing before ALJ Dunau13 casts doubt upon Dr. Candor's

review and his conclusion. The "Findings" on the report of

the x

- ray taken on 4/26/78 state: "1st stage

anthracosilico sis with emphysema." That report is one of

those Dr. Candor said he reviewed, but he suggests that

the x

- ray was negative despite the aforementioned

_________________________________________________________________

12. Pneumoconiosis is customarily c lassified as"simple" or

"complicated." Simple is caused by dust alone and is identified by small

opacities in the lung fields visible on a chest x

- ray. Complicated, which

is generally more serious, involves progressive massive fibrosis as a

complex rea ction to dust and other factors. Usery v. Turner Elkhorn

Mining Co., 428 U.S. 1, 7 (1976).

13. At oral argument, counsel for the Director informed the panel that

the record of the proceedings before ALJ Dunau were incorporated into

the record before ALJ Brown.

25

"conclusion." See Director's Exhibit No. 27. Similarly, a

report of an x

- ray taken on October, 22, 1986 states "[T]he

lungs are hyperaerated and show a pattern compatible with

chronic obstructive d isease." See Director's Exhibit No. 19.

Dr. Candor's report does not mention an x

- ray taken on

this date, though he does refer to one taken on October 26,

1986. We can not determine if one of these two dates is inerror, or if two x

- rays were taken wit hin 4 days of each

other. In any event, the ALJ's opinion does not mention this

discrepancy.

Even more glaring, however, is Dr. Candor's reference to

a pulmonary function report "obtained on 9/30/82."

Candor's Report at 1. Dr. Candor concludes that the

pulmonary function values taken on that date "meet

standard." However, the record contains the actual report

of the test that was conducted on that date, by Dr. E.J.

Biancarelli, and Dr. Biancarelli's conclusions about the

report.14 Dr. Biancarell i's note states:

Mr. Mancia was examined by me on 9/30/82 at which

time his ventilation studies were abnormal in all

parameters. He became dyspneic doing them. His chest

x

- ray showed coal miner's pneumoconiosis, category

1/2Q. He had distant breath sounds as well as rales

and wheezing upon physical examination.

He is unable to lift, carry, walk uphill, upstairs or

against the wind.

Directors Exhibit No. 22 (emphasis added).

ALJ Dunau noted that, although Dr. Candor reported

that a pulmonary function study performed on September

30, 1980 was normal, the ALJ adjusted the study for

Mancia's age, sex and height and concluded that "values

obtained by Dr. Candor are below those set forth in the . . .

regulations . . . as sufficient to establish total disability."

ALJ Dunau's Decision and Order at 3

- 4. We cannot

determine if ALJ Dunau's Decision and Order refers to a

test performed on September 30, 1980 or if she erred and

___________

______________________________________________________

14. Mancia was referred to Dr. Biancarelli pursuant to his claim for

miner's benefits, and Dr. Biancarelli conducted several tests on him on

different occasions. See Transcript of Hearing Before A LJ Dunau, at 30.

26

was actually referring to the same September 30, 1982 test.

In any event, Dr. Cander's report is at odds with the report

of the physician who conducted the test on September 30,

1982, and ALJ Brown nevertheless accepted Cander's

report without question.

Moreover, Dr. Candor's report in this survivor's claim is

inconsistent on its face. Candor's report notes that he

reviewed a valid arterial blood gas study that "indicated a

supernormal arterial oxygen tension at rest which rosefurther during exercise." Candor's Report at 2. Yet, Candor

concludes in his report that the "normal arterial oxygen

tension at rest and during exercise makes it most unlikely

that the patient's chronic lung d isease had any effect upon

cardiac rhythm and function." Id. The ALJ credits this

objective medical evidence and therefore apparently accepts

Candor's conclusion that Mancia's ABG was both

"supernormal" and normal at the same time, and that it

rose fu rther (above "supernormal") during exercise, and

remained normal during exercise simultaneously.

Despite the fact that Candor's report states that he

examined numerous records including x

- rays and results of

various examinations conducted upon Mancia over the

years, his conclusion appears to rest solely upon

Manganiello's April 11, 1991 note. At P 1 of his conclusions,

Candor states:

As noted in Dr. Manganiello's letter of 4/11/91, the

immediate cause of Mr. Mancia's death on 8/5/ 90 was

an acute myocardial infarction with resultant

cardiopulmonary arrest. The myocardial infarction

(heart attack) was caused by underlying coronary

artery disease.

Candor's Report at 2. The only evidence in this recor d that

Mancia died of a myocardial infarction was the 4/11/90

note written by Dr. Manganiello. Similarly, at P 3 of

Candor's report he concludes:

Despite Dr. Manganiello's statement in his letter of

4/11/91, I know of no scientific evi dence which

indicates that anthracosilicosis or emphysema hasten

the progress of coronary artery disease.

27

Id. Dr. Cander assumed that Mancia died of a heart attack

and that assumption influenced his opinion as to what, if

any role, Mancia's underlying pneumoconiosis played in his

death. Dr. Candor concludes in his report:

The available information provides no evidence that Mr.

Mancia's chronic lung disease was a substantially

contributing cause to his death caused by acute

myocardial infarction or hastened his death.

Id. However, the totality of the evidence does not support

the conclusion that Mancia suffered a heart attack. The

ALJ was not free to selecti vely credit testimony merely

because it supports a particular conclusion while ignoring

all evidence contrary to that conclusion.The ALJ held that Manganiello's opinion was "not

supported by objective means," yet he did not indicate what

objective means he had in mind. Chest x

- rays are used to

determine the existence of pneumoconiosis, 20 C.F.R.

S 718.202, and pulmonary function and blood gas studies

are used to determine the degree of a miner's level of

disability caused by pneumoconiosis. 20 C .F.R.

S 708.204(c)(1) and (2). None of these objective means

would have been necessary because of the Director's

concession that the miner was disabled because of his

pneumoconiosis arising out of his coal mine employment.

Furthermore, it would have b een unnecessarily cruel to

subject the miner to further unnecessary pulmonary

function and blood gas studies because both tests can be

very painful to a miner already diagnosed as having

pneumoconiosis. See, OFFICE OF ADMINISTRATIVE LAW JUDGES,

JUDGES ' BENCHBOOK OF BLACK LUNG BENEFITSACT, U.S. DEP'T OF

LABOR, Chapter 2: Introduction to Medical Evidence,

January, 1997.15 Finally, and most importantly, these tests

are conducted on living miners and would not be at all

helpful in answering the critica l question here, i.e., did

pneumoconiosis cause or substantially contribute to the

miner's death.

An autopsy was not performed. However, the ALJ did not

_________________________________________________________________

15. Available electronically at

http://204.245.136.2/public/blalung/refmc/bbb2.htm.

28

find, and the Director does not contend, that an autopsy is

the only acceptable way to determine whether a miner's

lung disease caused his death. We wil l not require one in

cases like this by concluding that Josephine Mancia has

not met her burden of proof.

In sum, we do not believe that this record contains that

quantum of evidence that a reasonable mind wouldfind

necessary to support ALJ Brown's rejection of Dr.

Manganiello's opinion that Mancia's black lung disease

hastened his death. Kowalchick.

V.

In his brief, counsel for Josephine Mancia requests that

we do not remand for further proceedings but that we

remand to the Board with a di rection to award her

survivor's benefits based, inter alia, on her age and the

protracted history of her case. See Appellant's Br. at 17.However, at oral argument, counsel merely requested a

remand to the ALJ for further proceedings. Mrs. Mancia's

cl aim for survivor's benefits has been making its way

through the administrative process for seven years and she

is now 78 years old. We have previously expressed our

concern over the "dismaying inefficiency" of the black lung

administrative process. Lan go v. Director, OWCP, 104 F.3d

at 575

- 576. Nonetheless, we cannot award black lung

benefits solely because of protracted administrative delay.

Id. at 576.

However, we can direct an award of benefits where the

"result is foreordained." Caprini v. Dir ector, OWCP, 824 F.2d

283, 285 (3d Cir. 1987). Perhaps the clearest example of a

foreordained result is Keating v. Director, OWCP , 71 F.3d

1118, 1123

- 1125 (3d Cir. 1995), where we found that a

remand for further proceedings would serve no useful

purp ose because the Director conceded the credibility of the

claimant's witnesses and had no contrary evidence. Under

those circumstances, we reviewed the evidence and found

that the miner's widow was entitled to survivor's benefits.

We have also decline d to remand for further proceedings

and have directed an award of benefits where the result

was not as readily apparent as Keating. In Sulyma v.

29

Director, OWCP, 827 F.2d 922 (3d Cir. 1987), the Director

conce ded that the miner raised the interim presumption of

disability under the applicable regulation. Id. at 923

- 924.

However, the Director, although conceding that

supplemental medical evidence would not be produced on

remand, nonetheless requested a reman d so that the ALJ

could further interpret the evidence to determine if the

Director's evidence was sufficient to rebut the interim

presumption. Id. at 924. Because the Director had no

further rebuttal evidence to produce on a remand, we

reviewed the D irector's medical evidence offered in rebuttal

and concluded that it was insufficient to rebut the interim

presumption. Id. at 924. Accordingly, "[i]n view of the

absence of rebuttal evidence," we found that a remand for

further proceedings was unwarra nted, and, therefore,

directed an award of benefits. Id.

We followed the Sulyma rationale in Kowalchick, where

the Director, although having no further rebuttal evidence

to produce on a remand, nonetheless requested a remand

for further proceedings. Once again, we reviewed the

medical evidence the Director offered to rebut the interim

presumption of disability and found it insufficient to rebut

the presumption. Therefore, because we found the rebuttalevidence insufficient, we found remand unnece ssary and

instead directed an award of benefits. In Kowalchick we

expanded upon our Caprini statement that we can direct an

award of benefits where the result is foreordained. While

acknowledging that a remand is necessary where the record

supports co nflicting inferences, we found that an award of

benefits is appropriate where the record supports only one

conclusion. Kowalchick v. Director, OWCP, 893 F.2d at 624.

We believe that the record here supports only one

conclusion, i.e., that Josephine M ancia met her burden of

establishing that contributed to her husband's death. With

the exception of Manganiello's April 11, 1991 note,

Josephine Mancia's medical evidence clearly, consistently

and unwaveringly demonstrated that the miner's death was

c aused by his lung disease. Manganiello's medical opinion

as to the miner's cause of death was well

- reasoned,

supported by objective means and based on competent

medical evidence. Moreover, even assuming that Mancia

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died of a heart attack as stated in the April 11th note, the

record is uncontradicted to that his lung disease would still

have hastened his death.

The Director's medical evidence was, contradictory and

inconsistent with Mancia's medical histo ry. We find that

Josephone Mancia has demonstrated her entitlement to

survivor's benefits as a matter of law. Thus, we will direct

an award of survivor's benefits from the applicable date.

Although this will not be appropriate in every case it is

ap propriate on this record. It is also consistent with the

policy of the Department of Labor's Part 718 regulations,

which recognizes that hardships can befall a miner's

survivor when a black lung disability benefits are

terminated because of the miner's death. The applicable

regulation provides not only that a claim for survivor's

benefits shall be adjudicated on an "expedited basis," but

also that where the "initial medical evidence appears to

establish that death was due to pneumoconiosis, the

sur vivor will receive benefits unless the weight of the

evidence as subsequently developed by the Director .. .

establishes that the miner's death was not due to

pneumoconiosis . . . ." 20 C.F.R. S 718.205(d).

VI.

Accordingly, we will grant the petit ion for review, reverse

the decision of the Board and remand for the limited

purpose of awarding survivor's benefits in accordance with20 C.F.R. S 725.503(c). Because Mrs. Mancia has been

litigating this claim for seven years and because she is 78

ye ars old, we urge the BRB to expedite this award so that

survivor's benefits will begin as soon as possible.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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