                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-30-2004

Soubik v. Director OWCP
Precedential or Non-Precedential: Precedential

Docket No. 03-1668




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"Soubik v. Director OWCP" (2004). 2004 Decisions. Paper 732.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/732


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                        PRECEDENTIAL        Neil A. Grover, Esq. (Argued)
                                            Law Office of Neil A. Grover
                                            2201 N. Second Street
   UNITED STATES COURT OF                   Harrisburg, PA 17110
APPEALS FOR THE THIRD CIRCUIT               Counsel for Appellant

                                            Sarah M. Hurley, Esq. (Argued)
              No. 03-1668                   Howard M. Radzely
                                            Donald S. Shire
                                            Patricia M. Nece
                                            U.S. Department of Labor
  JOHN A. SOUBIK, Executor of the           Office of the Solicitor
             Estate                         Suite N-2117
        of Cecilia Soubik,                  200 Constitution Ave., N.W.
                                            Washington, D.C. 20210
                            Petitioner      Counsel for Appellee

                   v.

DIRECTOR, OFFICE OF WORKERS’                                OPINION
  COMPENSATION PROGRAMS,
  United States Department of Labor
                                            McKEE, Circuit Judge.
 On Appeal from the Benefits Review
Board, U.S. Department of Labor
                                                    The widow of a deceased coal
       (BRB No. 02-0251 BLA)                      1
                                            miner returns to this court to appeal the
                                            Benefits Review Board’s third denial of
                                            her claim for survivor’s benefits under the
                                            Black Lung Benefits Act (“BLBA”), 30
       Argued December 18, 2003
                                            U.S.C. §§ 901-945. She claims that the
                                            ALJ did not properly weigh the lay and
 BEFORE: ROTH and McKEE, Circuit
                                            medical evidence on remand following our
Judges, and CUDAHY * , Senior Circuit
                                            earlier decision, Soubik v. Office of
Judge.
                                            Workers’ Compensation Programs, No.
         (Filed April 30, 2004)
                                                 1
                                                    Widow Cecilia Soubik died after
                                            filing her appeal in this case. The executor
   *
      Honorable Richard D. Cudahy, U.S.     of Mrs. Soubik’s estate, John A. Soubik,
Court of Appeals for the Seventh Circuit,   was substituted as the appellant on
sitting by designation.                     February 5, 2004.
98-6338 (3d Cir. June 25, 1999) (“Soubik           the pne umoc o n i o s is h a d n eith er
I”), and that the Board should not have            substantially contributed to, nor hastened,
affirmed the ALJ’s decision. For the               Soubik’s death as required for BLBA
reasons that follow, we will once again            benefits. The BRB affirmed in 1988.
reverse and remand.
                                                          In 1986, while her husband’s claim
                     I.                            was still being litigated, Cecilia Soubik
                                                   filed her claim for survivor benefits under
       After mining and hauling coal for
                                                   the BLBA. The OWCP administratively
nearly 50 years, Michael Soubik filed a
                                                   denied her claim on February 2, 1987, and
claim under the BLBA in August 1980.
                                                   Mrs. Soubik requested a hearing before an
The claim stated that Soubik could no
                                                   ALJ three days later. The claim was then
longer work because he was short-winded
                                                   referred to another ALJ, who found that
and had difficulty climbing stairs. The
                                                   the only remaining question was whether
Office of W orkers’ Compensation
                                                   pneumoconiosis substantially contributed
Programs (OWCP) denied his claim in
                                                   to, or hastened, her husband’s death.
July 1981. He requested a hearing in 1982
after being notified that the denial of
benefits had been reaffirmed, and a
                                                   “Clinical pneumoconiosis” consists of
hearing was held before an ALJ in 1986.
                                                   those diseases recognized by the medical
He died shortly after the hearing. Dr. Jere
                                                   community as pneumoconioses, i.e., the
Wagner, one of his treating physicians,
                                                   conditions characterized by permanent
signed a death certificate that listed acute
                                                   deposition of substantial amounts of
myocardial infarction as the cause of
                                                   particulate matter in the lungs and the
death. In 1987, an ALJ again denied his
                                                   fibrotic reaction of the lung tissue to that
application for benefits. Although the
                                                   deposition caused by dust exposure in coal
OWCP had stipulated that Mr. Soubik
                                                   mine employment.           This definition
suffered from coal miners’
                                                   includes, but is not limited to, coal
pneumoconiosis, 2 the ALJ concluded that
                                                   workers’           pneumoconiosis,
                                                   anthra cosilicosis, anthracosis,
                                                   anthrosilicosis, massive pulmonary
       2
         Under 20 C.F.R. § 718.201,                fibrosis, silicosis or silicotuberculosis,
pneumoconiosis is defined as:                      arising out of coal mine employment.
a chronic dust disease of the lung and its                        ...
sequelae, including respiratory and                “Legal pneumoconiosis” includes any
pulmonary impairments, arising out of coal         chronic lung disease or impairment and its
mine employment.         This definition           sequelae arising out of coal mine
includes both medical, or “clinical”,              employment. This definition includes, but
pneumoconiosis and statutory, or “legal”,          is not limited to, any chronic restrictive or
pneumoconiosis.                                    obstructive pulmonary disease arising out
             ...                                   of coal mine employment.

                                               2
However, this ALJ concluded that he was           BRB remanded the case to an ALJ for
bound by the original ALJ’s determination         proceedings consistent with Soubik I. That
that pneumoconiosis did not hasten M r.           ALJ again denied Mrs. Soubik benefits.
Soubik’s death. Accordingly, the second           The BRB affirmed and this petition for
ALJ denied Mrs. Soubik’s claim for                review followed.
survivor’s benefits.
                                                   A. Evidence before the third ALJ in
       In December 1989, Mrs. Soubik                             1997
appealed to the BRB. It affirmed the
                                                          The third ALJ had before him the
ALJ’s decision denying her benefits in
                                                  medical opinions of three doctors as well
March 1991, and denied her motion to
                                                  as the lay opinions of Mr. Soubik’s friends
reconsider its decision in October 1991.3
                                                  and family. This evidence is summarized
Mrs. Soubik then submitted a request for
                                                  below.
modification of the BRB’s decision to
OWCP,4 which denied it in April 1992.                          1. Medical opinions
       Over five years later in 1997,                            a. Dr. Karlavage
OWCP granted Mrs. Soubik’s request for
                                                          Dr. Karlavage, who was board-
another hearing before an ALJ. That July,
                                                  certified in family practice and dedicated
an ALJ denied M rs. Soubik’s claim. Mrs.
                                                  about 40 percent of his practice to treating
Soubik appealed to the BRB, but it denied
                                                  coal miners and former coal miners for
her appeal on July 28, 1998. She then
                                                  pulmonary problems, treated Mr. Soubik
filed a petition for review in this court.
                                                  from October 1985 until his death in April
We reversed the BRB’s affirmance of the
                                                  1986. During that six-month period,
ALJ’s decision in Soubik I and remanded
                                                  Soubik had three office visits. In his 1986
the case back to the BRB.
                                                  deposition, Dr. Karlavage stated that he
       Two years later, in June 2001, the         was aware of Soubik’s three pulmonary
                                                  function tests (“PFTs”). He stated that the
                                                  1981 PFT was abnormal, the 1985 PFT
   3
      Mrs. Soubik and her son sent a letter       was normal, and the 1986 PFT was
to the BRB appealing its affirmation of the       “essentially normal” because it had some
ALJ’s decision, and the BRB deemed this           normal readings although one reading was
letter a motion for reconsideration.              “consistent with obstructive lung disease at
                                                  29 percent.” Dr. Karlavage also stated in
   4
     Mrs. Soubik wrote to OWCP stating            his deposition that an x-ray from 1981
that she understood she needed to go to           indicated anthracosilicosis and one from
federal court so she could submit                 1 9 8 5 i n d i c a t e d “ pn e um o c o n i o s i s
additional evidence to continue the claim,        uncomplicated.”
and OWCP treated her correspondence as
                                                        Based on his examinations of
a request for modification of the BRB’s
                                                  Soubik, his review of Soubik’s medical
decision.

                                              3
and occupational history, and the medical           doctor who conducted that test did not
tests he ran, Dr. Karlavage concluded that          account for the medication Soubik was
Soubik “had lung disease best described as          taking and the effect it would have had on
pneumoconiosis and I think did have                 the PFT.
coronary artery disease.” He concluded
                                                            In February 1995, Dr. Karlavage
that the pneumoconiosis was caused by
                                                    wrote a letter to Mrs. Soubik’s attorney. It
Soubik’s “exposure over a several decade
                                                    stated in relevant part:
period. . . to silica, rock, and coal dusts.”
He reconciled the variable results from the                During that time [in which I
three PFTs with his conclusion that                        took care of Mr. Soubik], I
Soubik’s death was substantially related to                had the opportunity to
his pneumoconiosis, stating that Soubik:                   review a positive chest x-ray
                                                           and an abnormal pulmonary
       has a chest x-ray that does
                                                           function test. As you are
       indicate pneumoconiosis.
                                                           aware, Mr. Soubik expired
       His physical examination
                                                           when he was 74 years old at
       revealed, in my opinion,
                                                           the Shamokin Hospital. The
       some lung disease. There is
                                                           patient’s death certificate
       variability         among
                                                           indicates arteriosclerotic
       pulmonary function tests
                                                           heart disease but on further
       that certainly does occur. . .
                                                           inquiry, the family has
       . [P]ulmonary function tests
                                                           discovered directly from the
       can and do change from
                                                           attending physician, that
       month to month and from
                                                           c o a l     w o r k e r ’ s
       year to year. So, he was
                                                           p n eu m oc oniosis w as
       apparently breathing a little
                                                           involved in his death. (sic)
       bit better more recently.
                                                                  ...
                                                           In conclusion, it is my
He also noted a contrary negative reading
                                                           opinion, as it was before,
of one of the chest x-rays indicating that
                                                           that . . . the patient’s death
Soubik did not have pneumoconiosis.
                                                           was substantially incurred
However, he explained that result by
                                                           due to c oa l worker’s
noting the “obvious discrepancies” in the
                                                           pneumoconiosis. Indeed, he
doctor’s report who read the chest x-ray as
                                                           had arteriosclerotic heart
normal. That doctor also claimed that the
                                                           disease and nerve block, but
results of a PFT that was taken at the same
                                                           there is no doubt in my mind
time as this x-ray were abnormal. Dr.
                                                           that coal worker’s
Karlavage also discounted the significance
                                                           pneumoconiosis weakened
of the normal PFT in 1985 because the
                                                           h i m , w or s e n e d h is

                                                4
              condition, and                      Soubik’s history, Dr. Spagnolo concluded
              speeded his death.                  tha t pneumoco niosis was no t a
                                                  substantially contributing factor to
                                                  Soubik’s death, and that there was no
             b. Dr. Wagner                        reasonable evidence that the miner’s death
                                                  was caused by complications of
        Dr. Wagner treated Mr. Soubik for
                                                  pneumoconiosis.
his heart condition from May 1984 until
Soubik’s death, and signed Soubik’s death                 Dr. Spagnolo gave no weight to Dr.
certificate.5 Soubik’s death certificate          Karlavage’s medical opinion to the
listed his cause of death as acute                contrary because Spagnolo believed that
myocardial infarction with complete heart         Karlavage had not adequately explained
block and included cardiogenic shock              the normal results of the pulmonary
under “other significant conditions.” Dr.         function tests from 1985 and 1986.6 He
Wagner was unaware that Soubik had also           also gave no weight to Dr. Wagner’s
been treated by Dr. Karlavage when he             opinion because it was based on Dr.
signed the certificate. Nine years after          Karlavage’s records and also failed to
Soubik died, Dr. Wagner wrote a letter in         explain the normal pulmonary function test
response to an inquiry from Mrs. Soubik.          results.
The letter stated that, after reviewing Dr.
                                                              Dr. Spagnolo concluded that:
Karlavage’s medical records including
pulmonary function studies and x-ray                          the medical record in my
findings, Dr. Wagner concluded that                           opinion provides little
Soubik’s pulmonary impairment secondary                       evidence for the presence of
to his pneumoconiosis “could have                             a pneumoconiosis. In fact,
contributed” to the miner’s cardiac                           the only B-reader report7
condition and subsequent death.
            c. Dr. Spagnolo                           6
                                                         As noted above, that is simply not
       The OWCP had Dr. Spagnolo, who             true. Dr. Karlavage explained the normal
was board-certified in internal medicine          results in 1985 by factoring in the effect of
and pulmonary diseases, review Mr.                Soubik’s medication.
Soubik’s medical history. That history
                                                          7
included the PFTs from 1981, 1985, and                    A “B-reader” is a person with a
1986; two blood gas tests; and two chest x-       significant level of qualification for
ray readings. Based on his review of              reading x-rays, and this court has given B-
                                                  readers’ x-ray readings greater weight than
                                                  readings by less qualified personnel. See
   5
     Unlike the other two doctors whose           Labelle Processing Co. v. Swarrow, 72
opinions were in the record, Dr. Wagner’s         F.3d 308, 310 n.3 (3d Cir. 1995). Only
credentials were not specified.                   one of the people reading one of Mr.

                                              5
             indicates no evidence                           ...
             of coal workers’
                                                      In summary, . . . Mr.
             pneumoconiosis.
                                                      Soubik’s death was not
             N evertheless,
                                                      c a u s e d        b y     a
             assuming that a
                                                      pneumoconiosis.            A
             pneumoconiosis was
                                                      pneumoconiosis was not a
             present in M r.
                                                      substantially contributing
             Soubik, his lung
                                                      factor leading to his death
             function in 1985 and
                                                      and there is no reasonable
             again in March 1986
                                                      evidence (including a well
             shortly before his
                                                      reasoned medical opinion)
             death was normal.
                                                      that his death was caused by
             The normal arterial
                                                      complications            of
             blood gas results in
                                                      pneumoconiosis.
             1985 provide further
             s upport for t h e
             conclusion that Mr.
                                                            2. Lay evidence
             Soubik had normal
             lung function. Thus,                     There were lay opinions in the
             this medical record               record from Mr. Soubik himself as well as
             does not provide                  Mrs. Soubik; Walter Koshinskie, their
             reliable evidence of a            neighbor and Mr. Soubik’s co-worker;
             clinically significant            John Soubik, the Soubiks’ son; Frank
             impairment of lung                Alberts, Mr. Soubik’s brother-in-law; and
             function or evidence              Adeline Cecilia Dilliplane, the Soubiks’
             of progression of any             daughter’s mother-in-law.
             lung problem at the
                                                             a. Mr. Soubik
             time of his death.
             Therefore, even if                       Mr. Soubik testified that he had
             Mr. Soubik had a                  suffered difficulty breathing and shortness
             pneumoconiosis, it                of breath for “the last 15 years and as the
             did not result in a               years progress, it is getting more and
             clinically significant            more.” He stated that if he walked a city
             impairment of his                 block he would have to stop; that if he had
             heart or lung.                    to walk up or down steps, he had to stop
                                               several times; and that he coughed up
                                               black mucus at night. He also testified that
                                               he took Brondicon for his breathing and
Soubik’s chest x-rays was a B-reader. He
                                               nitroglycerin for his heart. He retired
concluded that Soubik’s x-ray did not
                                               completely in 1983 due to his breathing
indicate pneumoconiosis.

                                           6
problems, had a heart attack in 1984, and                 Koshinskie testified at the 1989
never smoked.                                     hearing that he had known Mr. Soubik for
                                                  forty years.9 Soubik had hauled coal for
             b. Mrs. Soubik
                                                  him, and their homes were close to each
       Mrs. Soubik testified during the           other on the same street. He noticed that
1989 hearing on her survivor claim. She           Soubik’s health was slipping because
also stated that her husband took                 Soubik could not walk well or walk up
Brondicon for his black lung problem.             stairs because it would “take his wind.”
She stated that it “sort of loosened up his       The day that Soubik died, Koshinskie
phlegm [so] that he had to spit up.” She          noticed that he was winded from walking
also testified that he took medication for        outside.
his heart after having a heart attack in
                                                               d. John Soubik
1986, shortly before his death. The day he
died, he became short of breath and was                   John Soubik testified at the 1997
taken to the hospital where he was put in         hearing that every time he came home to
an oxygen tent. He stayed in the tent until       visit his parents, he could see his father’s
he died.                                          condition had deteriorated. He observed
                                                  that his father had “considerably slowed
       She also testified during the 1997
                                                  down,” and heard him make “gasps for
hearing that she personally observed her
                                                  air” and have a “trying to catch his breath
husband’s breathing difficulty for “a long
                                                  feeling.” He also saw his father raise his
period of time” before his death. Even
                                                  chest “like he was trying to get air,” and
after he retired from work and started
                                                  “hold[] on to the bannister a lot going
receiving Social Security disability
                                                  down the stairs.” John Soubik also took
benefits, he would breathe heavily and spit
                                                  his father to the hospital where he was
up blood and mucus every day. The
                                                  “hooked. . . up to that breathing
problem was particularly pronounced in
                                                  apparatus.”
the evening. She also saw that, just before
his death, he could barely walk and was                        e. Frank Alberts
very weak.8
                                                          Alberts testified at the 1997 hearing
          c. Walter Koshinskie                    that he had known Mr. Soubik, his brother-
                                                  in-law, for about 50 years at the time of
                                                  Soubik’s death in 1986. Alberts had
    8
      Mrs. Soubik also testified that her
brother died of pneumoconiosis, i.e. black
                                                      9
lung disease, and that she had seen her                 He also testified at the April 1986
brother daily for about 20 years before his       hearing on M r. Soubik’s claim, but that
death. But this testimony is never linked         testimony focused on establishing that
to any observations she made of her               Soubik had worked as a coal miner and
husband’s illness.                                hauler.

                                              7
worked with him for about a decade               noted that Mrs. Soubik and “the miner’s
starting in the mid-1930s. He “could see         sons and sister-in-law” had testified that
[Soubik] gradually slowing down. . . over        Mr. Soubik had become short of breath
a period of years” and “could see his            over time, but he did not discuss that
breathing was getting slower. . . and he’d       evidence.
have to fight for his breath” starting in
                                                                C. Soubik I
about 1974 or 1975. He saw Soubik have
trouble catching his breath “pretty                     In Soubik I, we reversed the BRB’s
regular.”     Periodically, he saw him           decision affirming the ALJ’s denial of
coughing or spitting when they would             benefits, and we remanded for “further
visit. He noticed that Soubik had trouble        consideration of the lay evidence.” We
going up the steps in his house as he got        agreed with the ALJ that the only dispute
older.                                           was causation. Accordingly, Mrs. Soubik
                                                 had to establish that Mr. Soubik’s death
      f. Adeline Cecilia Dilliplane
                                                 was due to pneumoconiosis, i.e., that
        Ms. Dilliplane had known Mr.             pneumoconiosis “was a substantially
Soubik since 1969 when her son married           contributing cause or factor” leading to her
the Soubiks’ daughter. She stated that Mr.       husband’s death or that his “death was
Soubik had trouble helping her son build a       caused by com plications of
house. “[H]e would do some things and            pneumoconiosis” under 20 C.F.R. §
then he would stop because he’d start            718.205(c).10 We also concluded that Mrs.
wheezing. He’d start coughing.” She said         Soubik could prove her claim using
that she thought he had breathing problems       “medical evidence alone, non-medical
comparable to hers, and she had serious          evidence alone, or the combination of
problems with asthma. Over time, they            medical and non-medical evidence” under
saw each other less often but regularly.         Hillibush v. Dep’t of Labor, 853 F.2d 197,
During visits she would hear him wheeze          205 (3d Cir. 1988). Hillibush explicitly
and “knew he was having a bad. . .               held that lay testimony must be considered
breathing problem.”                              in a survivor’s case under 20 C.F.R. §
                                                 718.204.
      B. The ALJ’s 1997 Decision
                                                       In the case at hand, we held in
       The ALJ’s 1997 decision denying
                                                 Soubik I that neither the ALJ nor the BRB
benefits was based on Dr. Spagnolo’s
opinion.     The ALJ discounted Dr.
Wagner’s opinion as too vague, and he                10
                                                        In Lukosevicz v. Director, OWCP,
discounted Dr. Karlavage’s opinion
                                                 888 F.2d 1001, 1004, 1006 (3d Cir. 1989),
because it was based on “the report of the
                                                 we held that if the pneumoconiosis hastens
miner’s relatives that pneumoconiosis was
                                                 death, even briefly, it can be considered a
involved in the miner’s death” as Dr.
                                                 substantially contributing cause of death
Wagner had conveyed to them. The ALJ
                                                 under 20 C.F.R. § 718.205(c).

                                             8
had given any consideration to the lay           Karlavage’s February 22, 1995 letter
evidence offered in support of Mrs.              established that the doctor “bases his
Soubik’s claim, and this evidence “could         conclusions regarding the cause of the
be enough to satisfy Mrs. Soubik’s burden        miner’s death, in part, . . . only on
of proof that pneumoconiosis hastened her        statements from the miner’s relatives.”
husband’s death.” We also noted that the
                                                        The ALJ concluded that Dr.
ALJ and BRB had relied heavily on the
                                                 Spagnolo’s opinion would outweigh the
opinion of Dr. Spagnolo, and that he had
                                                 other doctors’ opinions even if they could
formed his opinion “based on his review of
                                                 establish that pneumoconiosis hastened
Soubik’s medical history” rather than the
                                                 Soubik’s death because of Dr. Spagnolo’s
opinions of Soubik’s treating physicians,
                                                 superior credentials and because “Dr.
Dr. Karlavage and Dr. Wagner.
                                                 Wagner. . . did not treat the miner for
    D. The ALJ’s 2001 Decision on                respiratory problems and Dr. Karlavage
             Remand                              only saw the miner on three office visits
                                                 over a six month period.” The ALJ
       Upon remand from Soubik I, the
                                                 believed that the lay testimony was also
ALJ summarized the lay testimony in the
                                                 outweighed by “the thorough and complete
record. He found that the lay opinions did
                                                 report of Dr. Spagnolo.”         The ALJ
not clearly establish that Mr. Soubik’s
                                                 described Dr. Spagnolo as both “[a] highly
ongoing deterioration was due to
                                                 qualified. . . pulmonary specialist” as well
pneumoconiosis or a pulmonary condition.
                                                 as the beneficiary of a complete review of
He also discussed each of the three
                                                 Soubik’s medical records. The ALJ thus
doctors’ opinions again, and reached the
                                                 concluded that Mrs. Soubik did not
same conclusion, that Dr. Spagnolo’s
                                                 establish pne umoc onio si s w a s a
opinion was the most persuasive.
                                                 substantially contributing factor in her
       The ALJ again found that Dr.              husband’s death or that it hastened his
Wagner’s opinion was “equivocal and              death, and he therefore denied survivor’s
vague” because he merely stated that the         benefits.
pneumoconiosis “could have contributed”
                                                         II. Standard of Review
to the miner’s death, as he had in 1997.
He also found that Dr. Karlavage’s opinion              Because the BRB adopted the
was “not well documented nor well                ALJ’s factual findings, we independently
reasoned” because “he did not discuss the        review the entire record to determine if the
basis for [his] conclusion [that the miner       ALJ’s factual findings are rational,
was totally disabled from coal mine              consistent with applicable law, and
employment due to his lung disease] given        supported by substantial evidence on the
his own deposition testimony that the            record considered as a whole. See Mancia
miner’s pulmonary function study results         v. Director, OWCP, 130 F.3d 579, 584 (3d
from studies taken in 1985 and 1986 were         Cir. 1997) (citing Kowalchick v. Director,
normal.”      He also stated that Dr.

                                             9
OWCP, 893 F.2d 615, 619 (3d Cir. 1990)).                contributing factor to, Soubik’s breathing
Substantial evidence has been defined as                impairment. The ALJ concluded that Dr.
such relevant evidence as a reasonable                  Spagnolo’s opinion regarding the cause of
mind might accept as adequate to support                Mr. Soubik’s breathing problems was
a conclusion. Id. We exercise plenary                   more persuasive than these lay opinions.
review over the ALJ’s legal conclusions
                                                           B. Weighing the medical evidence
adopted by the BRB. Id.; see also Carozza
v. U.S. Steel Corp., 727 F.2d 74, 77 (3d                       Although the lay evidence alone did
Cir. 1984).                                             not offer an etiology of Mr. Soubik’s
                                                        breathing troubles,11 the ALJ improperly
              III. Discussion                           minimized its significance in weighing Dr.
                                                        Spagnolo’s opinion and Dr. Karlavage’s
        Mrs. Soubik argues that the ALJ did
                                                        contrary opinion. Mrs. Soubik argues that
not follow Soubik I on remand because he
                                                        this was error because Dr. Spagnolo’s
failed to properly weigh the lay evidence
                                                        conclusion that no pneumoconiosis was
in the context of the evidence as a whole.
                                                        present contradicted the parties’ stipulation
She also argues that the ALJ did not
                                                        to the contrary. She also argues that the
properly consider the opinions of Dr.
                                                        ALJ erred in discounting Dr. Karlavage’s
Karlavage and Dr. Wagner. Finally,
                                                        opinion and that he misunderstood the
assuming we find these arguments
                                                        basis of that opinion.12
meritorious, she requests that we grant her
BLBA benefits rather than remanding and
reversing.                                                      11
                                                                The ALJ could hardly expect lay
      A. Weighing the lay evidence                      testimony to establish causation or
                                                        etiology. That is beyond the purview or
           The ALJ did consider the lay                 the competence of lay witnesses. Such
evidence on remand per our instructions in              testimony can only be expected to
Soubik I. His opinion summarized what                   corroborate certain symptoms and
each layperson said and analyzed its                    establish pertinent behavior or quality of
probative value. The ALJ noted that each                life issues. Expert testimony will usually
of the lay witnesses established that Mr.               be required to establish the necessary
Soubik was having trouble breathing,                    relationship between such observed indicia
noticed that Mr. Soubik had increased                   of pneumoconiosis and any underlying
trouble with his breathing over time, and               pathology.
observed his frequent coughing and
                                                           12
spitting up mucus and/or blood. He then                      Mrs. Soubik also argues that the ALJ
explained his rationale for rejecting the lay           improperly disregarded Dr. Wagner’s
evidence. According to the ALJ, the lay                 opinion because it was conditional. As
evidence that Mr. Soubik had breathing                  noted above, his opinion stated that
t r o u b l e d i d n o t e st a b l i sh t h at        pneumoconiosis “could” have contributed
pneumoconiosis was responsible for, or a                to Mr. Soubik’s death. She cites to Piney

                                                   10
        In Soubik I we noted that the ALJ           or she relied upon such an opinion. Scott v.
“relied heavily” on Dr. Spagnolo’s                  Mason Coal Co., 289 F.3d 263, 269 (4th
opinion, and that opinion was based solely          Cir. 2002) (internal citation omitted). Like
on a review of Soubik’s medical history.            the medical opinion in Scott, Dr.
Dr. Spagnolo never saw M r. Soubik. We              Spagnolo’s expert opinion states that
thus raised the ALJ’s reliance on Dr.               Soubik did not have pneumoconiosis
Spagnolo’s opinion as an issue, but did not         despite the parties’ agreement that he did.
definitively state that the ALJ had                 Dr. Spa gnolo’ s opinion c an be
incorrectly relied on it. Accordingly, there        distinguished from the opinion in Scott
is no law of the case regarding the doctors’        because he stated that even if Soubik had
opinions.                                           pneumoconiosis, there is still no evidence
                                                    that it contributed to his death. However,
       The Court of Appeals for the Fourth
                                                    that superficial “hypothetical” does not
Circuit has held that an ALJ may not credit
                                                    reconcile his opinion with the stipulation
a medical opinion stating that a claimant
                                                    that pneumoconiosis was present.
did not suffer from pneumoconiosis
                                                    Common sense suggests that it is usually
causing respiratory disability after the ALJ
                                                    exceedingly difficult for a doctor to
had already accepted the presence of
                                                    properly assess the contribution, if any, of
pneumoconiosis unless the ALJ stated
                                                    pneumoconiosis to a miner’s death if
“specific and persuasive reasons” why he
                                                    he/she does not believe it was present.
                                                    The ALJ did not explain why Dr.
                                                    Spagnolo’s opinion was entitled to such
Mountain Coal Co. v. Mays, 176 F.3d 753,
                                                    controlling weight despite Dr. Spagnolo’s
763 (4th Cir. 1999). In Piney M ountain,
                                                    conclusion that Soubik did not have the
the court evaluated a medical opinion that
                                                    disease that both parties agreed was
stated that “pneumoconiosis could be
                                                    present.
considered a complicating factor” in the
miner’s death. The court held only that                     Moreover, on remand, the ALJ
such an opinion need not be rejected, as            obviously misunderstood how Dr.
the petitioner argued, stating that “a              Karlavage arrived at his opinion and this
reasoned medical opinion is not rendered            contributed to his improper discounting of
a nullity because it acknowledges the               Dr. Karlavage’s conclusion. The ALJ
limits of reasoned medical opinions.” Id.           cited part of Dr. Karlavage’s letter to Mrs.
However, the court also recognized that             Soubik’s counsel, which stated: “The
“uncertainty is not proof, and claimants            patient’s death certificate indicates
must prove entitlement.” Id. Accordingly,           arteriosclerotic heart disease but on further
under Piney Mountain, the ALJ was free to           inquiry, the family has discovered directly
minimize the probative value of Dr.                 from the attending physician, that coal
Wagner’s conditional opinion but he did             worker’s pneumoconiosis was involved in
not have to reject it solely because it             his death.” The ALJ then concludes that,
appeared to be equivocal.

                                               11
since Dr. Karlavage based his opinion that            lay evidence standing alone does not
pneumoconiosis contributed to Soubik’s                provide support for the theory that
death on information from Soubik’s                    pneumoconiosis hastened or caused Mr.
family, Dr. Karlavage’s opinion was not               Soubik’s death. He does not explain why
well-reasoned nor well-documented.                    he assumed that Dr. Karlavage’s opinion
                                                      would be worth less than Dr. Spagnolo’s
        That conclusion is not supported by
                                                      because Dr. Karlavage took such
substantial evidence. In fact, it is flatly
                                                      information into account when forming his
contradicted by Dr. Karlavage’s 1986
                                                      opinion.     Indeed, it seems that Dr.
deposition, which was part of the record
                                                      Karlavage’s opinion would be stronger
from Mrs. Soubik’s earlier hearings before
                                                      because it factored in the lay observations
other ALJs. The deposition details Dr.
                                                      of those who knew Mr. Soubik.13
Karlavage’s examination and analysis of
three PFTs, the same two chest x-rays that
Dr. Spagnolo relied on, and his own
                                                           13
personal observations of the patient.                           Moreover, at oral argument the
Based on this information, Dr. Karlavage              government conceded that Dr. Spagnolo
opined in 1986 that So ubik ’s                        might have come to a different result if he
pneumoconiosis advanced his death. The                had the benefit of the lay evidence. As
language in Dr. Wagner’s 1995 letter,                 noted above, Dr. Spagnolo concluded that
written nine years after he issued his initial        there was no “reliable evidence of a
opinion regarding the factors contributing            clinically significant impairment of lung
to Soubik’s death, indicates only that Dr.            function or evidence of progression of any
Wagner later amended his opinion to say               lung problem at the time of his death.”
t h a t p n eumoconiosis could ha ve                  Yet it is clear from the testimony of those
contributed to Soubik’s death after he                who knew Soubik that he was having an
reviewed Dr. Karlavage’s records and                  increasingly difficult time breathing and
opinion. Dr. Karlavage’s opinion was                  regularly coughed up mucus. Moreover,
based on much more than just the family’s             the testimony of those who knew Soubik
opinion that pneumoconiosis hastened                  also established that he was placed in an
Soubik’s death. It was therefore irrational           oxygen tent when last admitted to the
for the ALJ to discount Dr. Karlavage’s               hospital and that he never recovered. The
opinion merely because it refers to Dr.               ALJ never explained why testimony as
Wagner’s 1995 letter.                                 compelling as this can be ignored in favor
                                                      of a doctor who opined that Soubik had no
       It was also improper for the ALJ to
                                                      “clinically significant” lung problems.
assume that Dr. Karlavage’s consideration
                                                      This is especially true when that doctor
of information from Mr. Soubik’s family
                                                      never saw the patient, and all but ignored
and others who had observed him regularly
                                                      the fact that parties are assuming that
was a failing. The ALJ did not explain
                                                      pneumoconiosis was present given their
that assumption. He stated only that the
                                                      stipulation on this point.

                                                 12
        The ALJ also failed to give Dr.             be granted compensation upon remand.14
Karlavage’s opinion the additional
                                                              We agree that this litigation has
deference it was due as the opinion of a
                                                    been unnecessarily protracted. We have
treating physician. The ALJ stated that he
                                                    previously expressed our frustration over
did not credit Dr. Karlavage’s opinion as
                                                    the inefficiency and delay that is all too
that of a treating physician because Dr.
                                                    often part of the black lung administrative
Karlavage had only seen Soubik three
                                                    process. We have done so in a case where
times over six months. That was, of
                                                    a claimant had been litigating her claim for
course, three more times and six months
                                                    benefits for seven years, ten fewer years
more than Dr. Spagnolo saw him. So
                                                    than Mrs. Soubik. Mancia, 130 F.3d at 593
easily minimizing a treating physician’s
                                                    (internal citation omitted). In Mancia, we
opinion in favor of a physician who has
                                                    quoted our decision in Lango v. Director,
never laid eyes on the patient is not only
                                                    OWCP, 104 F.3d 573 (3d Cir. 1997) in
indefensible on this record, it suggests an
                                                    noting that we had “previously expressed
inappropriate predisposition to deny
                                                    our concern over the ‘dism aying
benefits. It is well-established in this
                                                    ine f f ic ie ncy’ of the bla c k lu ng
circuit that treating physicians’ opinions
                                                    administrative process.” 130 F.3d at 593
are assumed to be more valuable than
                                                    (quoting Lango, 104 F.3d at 575-76). The
those of non-treating physicians. Mancia v.
                                                    delay in Lango was 14 years, again
Director, OWCP, 130 F.3d 579, 590-91
                                                    substantially shorter than the delay that
(3d Cir. 1997). The ALJ nevertheless
                                                    Mrs. Soubik was made to endure. We
ignored Dr. Karlavage’s clinical expertise;
                                                    there gave several examples of inordinate
an expertise derived from many years of
diagnosing and treating coal miners’
pulmonary problems. The ALJ did so
without making any effort to explain why
Dr. Spagnolo’s board certification in
pulmonary medicine was a more                            14
                                                            Mrs. Soubik also argued that the
compelling credential than Dr. Karlavage’s
                                                    delay was particularly unfair to her
many years of “hands on” clinical training.
                                                    because she was 85 years old, implying
      C. Directing BLBA benefits                    that she might not live long enough to
                                                    receive the benefits she was due if we did
        We turn to the final issue that Mrs.
                                                    not direct the BRB to grant them. As
Soubik raises. She asks us to remand this
                                                    noted above, Mrs. Soubik died before oral
case to the BRB solely to direct entry of an
                                                    argument in this case. In light of her
award of benefits based on the inordinate
                                                    death, we need not now consider this
delay in properly adjudicating her claim.
                                                    argument. It is, however, an all too tragic
She argues that allowing her claim to drag
                                                    example of the kind of hardship that can
on any longer would be unfair and
                                                    result from the all too frequent delay in
inappropriate because she would certainly
                                                    these cases.

                                               13
delay ranging from ten years 15 to as many          many cases languish while
as seventeen,16 and even nineteen years.17          waiting for an ALJ or the
We then stated, “[h]opefully, the                   BRB to hear them.
publication of our concern will come to the         Although there may have
attention of authorities who can do                 been special circumstances
something about it.” Lango, 104 F.3d at             in some of these cases that
576. We made that statement in 1997.                explain the delay, and we
Yet, even after that admonition, it took the        have not ex haus tively
BRB two years to remand this matter to              examined the records, there
the ALJ following our remand to the BRB.            is enough basis in the mere
We therefore have little reason to think            recitation of the facts to
that the delays that attend black lung              prompt consideration by the
litigation have been mitigated or even              relevant administrators . . . .
addressed by the administrative agencies
                                                    Dela ys are esp ecially
involved. Given our continuing concern,
                                                    significant for recipients of
we take the liberty of reiterating at length
                                                    black lung benefits since
the concerns we expressed in Lango:
                                                    most are nearing the end of
         Were this the only case to                 their lives. Claimants have
         come to our attention with                 less time to use the benefits,
         such delay, we would be                    and they often must wait
         inclined to attribute it to a              when illness is increasing
         rare bureaucratic snag.                    their expenses but while
         However, we note that some                 retirement has reduced their
         recent black lung cases in                 income. Worse, some may
         this circuit suggest that this             die before litigation resolves
         dismaying inefficiency is                  their claims.
         not unusual . . . . As far as
                                                    Chief Judge Posner has
         we can tell, it appears that
                                                    expressed similar concerns
                                                    about black lung cases in the
                                                    Seventh Circuit. In Amax
    15
      See Gonzales v. Director, OWCP,               Coal Co. v. Franklin, 957
869 F.2d 776 (3d Cir. 1989).                        F.2d 355, 356 (7th Cir.
   16
                                                    1992), he remarked:
     See Keating v. Director, OWCP, 71
F.3d 1118 (3d Cir. 1995); Kowalchick v.                    As so often in black
Director, OWCP, 893 F.2d 615 (3d Cir.               lung cases, the processing of
1990).                                              t h e c l a im h a s b e e n
                                                    protracted scandalously . . .
    17
      See Kline v. Director, OWCP, 877              Such delay is not easy to
F.2d 1175 (3d Cir. 1989).

                                               14
               understand. These                      of benefit claims. “According to one
               are not big or                         commentator who cited official reports to
               complex cases . . . .                  Congress, the approval rate for applicants
               The typical hearing                    for federal black lung benefits is
               lasts, we are told, no                 exceedingly low.” Id. at 575-76 (citing
               more than an hour . .                  Timothy F. Cogan, Is the Doctor Hostile?
               .       The delay in                   Obstructive Impairments and the Hostility
               p r o c e s s in g t h es e            Rule in Federal Black Lung Claims, 97 W.
               claims is especially                   V A. L. R EV. 1003, 1004 (1995)). The
               regrettable because                    sweat and health of miners fueled much of
               most black lung                        the growth of the American economy. It is
               claimants are middle-                  indeed unfortunate that they and their
               aged or elderly and                    families must also now endure the kind of
               in poor health, and                    administrative ordeal evidenced by M rs.
               therefore quite likely                 Soubik’s attempt to collect survivor’s
               to die before                          benefits.
               receiving benefits if
                                                              Nevertheless, however frustrating
               their cases are spun
                                                      this may be, as a court we can not direct
               out for years. We
                                                      the award of black lung benefits solely
               hope that Congress
                                                      because of protracted administrative delay.
               will          consider
                                                      See Mancia, 130 F.3d at 593. Although
               s t r ea m l i n in g t h e
                                                      the length of any delay is a factor we have
               adjud ication of
                                                      often considered when determining
               disability benefits
                                                      whe t h e r to r e ma n d f or f urt h er
               cases (not limited to
                                                      consideration or to direct benefits, we
               black lung) along the
                                                      previously noted that remand for an award
               lines suggested by
                                                      of benefits is inappropriate where the
               the Federal Courts
                                                      record supports conflicting inferences. Id.;
               Study Committee.
                                                      Kowalchick v. Director, OWCP, 893 F.2d
               See the Committee’s
                                                      615, 624 (3d Cir. 1990).
               Report (Ap ril 2,
               1990), at pp. 55-58.                          Here, the unexamined evidence
                                                      could support a finding for or against Mrs.
104 F.3d at 573-75. Protracted delay that
                                                      Soubik. If Dr. Karlavage’s opinion as a
results in claimants not living long enough
                                                      treating physician is given proper weight,
to collect any benefits they might be
                                                      and if the lay evidence is properly
entitled to is, in and of itself, an injustice
                                                      considered, the record supports only one
that ought to be addressed. However, the
                                                      result: an award of benefits to Mrs.
s i tu a t i o n is ex ac er ba ted by a n
                                                      Soubik. If, however, the ALJ had offered
exceptionally low rate of agency approval
                                                      “specific and persuasive reasons” for

                                                 15
relying upon Dr. Spagnolo’s opinion                  reasoned explanation for a contrary
despite findings that are contrary to the            finding.18 Accordingly, we believe that
parties’ stipulation and the opinion of the          Mrs. Soubik, the original petitioner, has
treating physician, the record would                 established her entitlement to survivor’s
support the ALJ’s denial of benefits.                benefits under the BLBA, and we will
                                                     direct that an award of those benefits be
       The ALJ and BRB have already had
                                                     entered on remand.
three chances to properly support a
decision denying benefits.           Yet the                             IV.
decision to deny benefits remains
                                                             We will reverse the decision of the
unsupported by the record. This, together
                                                     BRB entered on January 8, 2003, and
with the outrageous delay, leads us to
                                                     remand the case for an award of benefits
agree that circumstances here require that
                                                     as of the appropriate commencement date.
we direct benefits on remand. We see no
                                                     Since this case has been litigated for nearly
point in remanding these issues for a
                                                     two decades already, we assume that the
fourth time when the ALJ and BRB have
                                                     BRB will expedite that award.
thus far been unable to justify elevating
Dr. Spagnolo’s opinion over that of the
treating physician, the lay evidence, and
                                                     ROTH, Circuit Judge, dissenting:
the parties’ o wn stipu lation. See
Podedworny v. Harris, 745 F.2d 210, 223                     My reading of the record in this
(3d Cir. 1984) (concluding that “it would            appeal does not persuade me that it
b e virtually imp ossib le for th e                  supports only one result - as is concluded
[government] in a third hearing to adduce            by the Majority.        Nor do I believe,
the new vocational and medical evidence              pursuant to our standard of review – are
that would be necessary to support a                 the ALJ’s factual findings rational,
finding that th[e] appellant is not disabled”        consistent with applicable law, and
in a social security benefits case, given            supported by substantial evidence on the
significant “deficiencies in the record and          record considered as a whole – that the
the failure of the [government] to cure              Court is justified in reversing the judgment
them in the second proceeding before the             of the Benefits Review Board – however
ALJ. . . .”).                                        much I may feel personal sympathy for
                                                     Mrs. Soubik.
       Dr. Karlavage’s opinion was based
on actual treatment as well as a record                       I do, however, agree with the
review. Dr. Karlavage’s clinical expertise,
derived from an extensive practice of
treating miners, the corroboration of lay                18
                                                             We reach this conclusion without
testimony, and the stipulation of the
                                                     disturbing the ALJ’s finding that Dr.
parties, provide more than sufficient
                                                     Wagner’s opinion was too vague to be
support for Mrs. Soubik’s claim absent a
                                                     useful.

                                                16
majority that the protracted delay in
resolving federal black lung benefits cases
is regrettable.




                                              17
