                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                     File Name: 10a0035p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 GARTHA C. CONLEY, widow of Dave Conley, X
                                 Petitioner, -
                                               -
                                               -
                                               -
                                                   No. 09-3039
           v.
                                               ,
                                                >
                                               -
                                               -
 NATIONAL MINES CORPORATION; OLD
                                               -
 REPUBLIC INSURANCE COMPANY; DIRECTOR,
                                               -
 OFFICE OF WORKERS’ COMPENSATION
 PROGRAMS, UNITED STATES DEPARTMENT OF -
                                               -
                              Respondents. -
 LABOR,
                                               -
                                              N
                      On Petition for Review of an Order
                        of the Benefits Review Board.
                              No. 08-0355 BLA.
                                  Argued: January 12, 2010
                           Decided and Filed: February 12, 2010
             Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge;
                                                    *
                           WISEMAN, District Judge.
                                     _________________
                                          COUNSEL
ARGUED: James D. Holliday, Hazard, Kentucky, for Petitioner. Laura Metcoff Klaus,
GREENBERG TRAURIG, Washington, D.C., for Respondents. ON BRIEF: James
D. Holliday, Hazard, Kentucky, for Petitioner. Laura Metcoff Klaus, Mark Elliott
Solomons, GREENBERG TRAURIG, Washington, D.C., for Respondents.




        *
           The Honorable Thomas A. Wiseman, Jr., Senior United States District Judge for the Middle
District of Tennessee, sitting by designation.


                                                1
No. 09-3039          Conley v. National Mines Corp., et al                               Page 2


                                    _________________

                                          OPINION
                                    _________________

        WISEMAN, District Judge. Petitioner Gartha C. Conley seeks review of an
order of the Benefits Review Board (“Review Board”) dated November 25, 2008, which
reversed an Administrative Law Judge’s award of black lung benefits on a widow’s
claim filed by Mrs. Conley under the Black Lung Benefits Act (“BLBA”), 30 U.S.C.
§§ 901–945, after her husband Dave Conley died of metastatic lung cancer.
Respondents are the National Mines Corporation (“NMC”), Old Republic Insurance
Company, and Director, Office of Workers’ Compensation Programs, United States
Department of Labor. The sole issue presented in this appeal is whether the Review
Board erred in reversing the ALJ’s decision on the grounds that the decedent’s treating
physician’s opinion was insufficient to carry the widow’s burden of proof, based on the
standard previously articulated by this Court in Eastover Mining Co. v. Williams, 338
F.3d 501 (6th Cir. 2003). For the reasons set forth herein, we AFFIRM.

                                               I.

        Dave Conley, a heavy smoker for decades,1 was diagnosed with lung cancer in
1994, for which he underwent radiation and chemotherapy treatment. By the time it was
discovered, however, the disease had already spread to his lymph nodes and was later
found to have metastasized to his brain, pancreas and liver. He died on March 25, 1996.
The “immediate cause” of his death, as noted on his death certificate, was
“[c]ardiorespiratory failure due to consequence of pulmonary malignancy with
metastasis.” (Appendix (“App.”) 69.) The death certificate, which was completed by
his treating physician, Dr. Ira Potter, also identified the decedent’s “history of cigarette
smoking [and] coal mining” as “[o]ther significant conditions [that] contributed to death
but [did] not result[] in the underlying cause.” (Id.)



        1
          The evidence regarding exactly how long Mr. Conley smoked is conflicting, but he smoked
heavily for a minimum of eighteen or twenty years and possibly as many as fifty years.
No. 09-3039            Conley v. National Mines Corp., et al                                      Page 3


         Petitioner Gartha C. Conley filed for benefits in June 2005, nine years after her
husband had died of lung cancer.2 After the Department of Labor (“DOL”) collected
Mr. Conley’s work and medical records, the claim proceeded to the Office of
Administrative Law Judges for a hearing, which was conducted on May 2, 2007.
Administrative Law Judge (“ALJ”) Larry S. Merck presided over the hearing and issued
a decision and order awarding benefits on January 23, 2008. (App. 17–36.) The parties
agreed that lung cancer was the principal cause of death and that the lung cancer was
related to Conley’s history of smoking rather than to coal mining. It was also undisputed
that Mr. Conley had clinical pneumoconiosis arising out of his coal mine employment.
Consequently, the only issue, in theory, that required resolution by the ALJ was whether
Mr. Conley’s clinical pneumoconiosis was a “substantially contributing cause or factor
leading to” his death. 20 C.F.R. § 718.205(c)(2). That was the question upon which
NMC focused its arguments. The ALJ, in fact, credited the opinions of NMC’s experts
who concluded that the decedent’s clinical pneumoconiosis did not cause or contribute
to his death.

         However, the ALJ devoted a substantial portion of his analysis to the question
of whether the record supported a conclusion that Mr. Conley had chronic obstructive
pulmonary disease (“COPD”) that was caused at least in part by his exposure to coal
dust and therefore qualified as legal pneumoconiosis, separate and apart from the
undisputed diagnosis of clinical pneumoconiosis.                   Ultimately, the ALJ made an
independent finding that Mr. Conley had “legal” pneumoconiosis as well as “clinical”
pneumoconiosis, and that the legal pneumoconiosis was a contributing cause of death.3


         2
           The delay in filing is related to the fact that Mrs. Conley was receiving workers’ compensation
benefits from the Commonwealth of Kentucky, which offset any benefits that might have been awarded
under the BLBA. Conley was awarded total disability for black lung in his Kentucky state workers’
compensation claim in 1989, and Mrs. Conley received those benefits through June 2006.
         3
          The term “pneumoconiosis” is defined by statute as a “chronic dust disease of the lung and its
sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment.” 30
U.S.C. § 902(b) (1994). The regulations clarify that this definition “includes both medical, or ‘clinical,’
pneumoconiosis and statutory, or ‘legal,’ pneumoconiosis.” 20 C.F.R. § 718.201(a). The regulations
distinguish between clinical and legal pneumoconiosis as follows:
         (1) Clinical Pneumoconiosis. “Clinical pneumoconiosis” consists of those diseases
         recognized by the medical community as pneumoconioses, i.e., the conditions
         characterized by permanent deposition of substantial amounts of particulate matter in
No. 09-3039           Conley v. National Mines Corp., et al                                         Page 4


        Pneumoconiosis, whether legal or clinical, is considered a “substantially
contributing cause” of death if it “hastens death.” 20 C.F.R. § 718.205(c)(5). Based on
the opinion of Mr. Conley’s long-time treating physician, Dr. Potter, who was not a
pulmonary specialist, the ALJ concluded that Mr. Conley’s death was “hastened” by
legal pneumoconiosis (COPD) and awarded benefits based upon that conclusion.
Specifically, Dr. Potter testified as follows:

        Q53 Okay. Do you believe that lung cancer would have killed Mr.
        Conley irrespective of his lung disease?
        A        Yes.
        Q54 Do you have an opinion as to whether having the degree of COPD
        that he had [previously described as moderate] substantially hastened his
        death?
        A      I, I am of the group that certainly believes that people with
        chronic lung disease have less respiratory reserve, less capacity to deal
        with these things, and that therefore it does make a difference.
        Q55 Could you explain to us from a physiological standpoint or an
        anatomical standpoint what damage COPD causes and why it would
        make a person less likely to survive?
        A       COPD destroys air cells. The, the condition leads to destruction
        of the alveolar sacs. And this decreases your respiratory reserve, your
        ability – we all have a respiratory reserve when we are walking around
        and we call upon it when we exert ourselves. I think that you lose a lot
        of that when you have COPD or interstitial fibrosis either one, and that
        is part of our physical resistance. In other words, the healthier we are,
        the better we’re able to deal with serious problems.
        Q56 Can you estimate – is there any way to tell how much longer Mr.
        Conley might have survived had he not had legal pneumoconiosis?




        the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust
        exposure in coal mine employment. . . .
        (2) Legal Pneumoconiosis. “Legal pneumoconiosis” includes any chronic lung disease
        or impairment and its sequelae arising out of coal mine employment. This definition
        includes, but is not limited to, any chronic restrictive or obstructive pulmonary disease
        arising out of coal mine employment.
20 C.F.R. § 718.201(a).
No. 09-3039            Conley v. National Mines Corp., et al                                 Page 5


        A        No.
(App. 47–48.)4

        Because the ALJ found that Dr. Potter’s opinion was “based on objective medical
evidence, as defined in § 718.201 to include medical testing and Claimant’s medical and
work histories” (App. 26), and “supported by his treatment and hospitalization notes,
medical reports, deposition, and Dr. Potter’s familiarity with [Mr. Conley’s] condition
due to his special relationship with [him] as his treating physician for twenty-one years”
(App. 29), the ALJ deemed Dr. Potter’s report to be “well-reasoned and well-
documented.” (App. 26, 29.) On that basis, and in reliance upon his reading of
§ 718.104(d), the ALJ accorded Dr. Potter’s opinion “additional probative weight.”
(App. 29.)

        The ALJ also considered the opinions of Dr. Bruce Broudy and Dr. A. Dahhan,
both board-certified in internal and pulmonary medicine and B-readers. As indicated
above, although he accepted those physicians’ opinions that clinical pneumoconiosis did
not contribute to or hasten Conley’s death, he discounted their opinions that legal
pneumoconiosis did not contribute to or hasten his death. In fact, both Dr. Broudy and
Dr. Dahhan found that Conley had, at most, minor respiratory obstruction, and what little
he had was wholly attributable to cigarette smoking rather than to coal mining. In other
words, both physicians implicitly concluded that Conley did not have legal
pneumoconiosis at all, and therefore did not address the issue of whether legal
pneumoconiosis hastened his death. Dr. Dahhan did testify unequivocally, however, that
Conley’s metastatic lung cancer was neither related to nor hastened by inhalation of coal
dust and that his death from lung cancer would have occurred at the same time and in the
same manner regardless of whether he had ever worked as a coal miner. In a second
supplemental report dated March 20, 2007, Dr. Dahhan expressly disagreed with Dr.
Potter’s conclusion that Mr. Conley’s weakened lung condition made him more
susceptible to lung cancer, noting that Conley was not able to undergo a complete


        4
          Dr. Potter conceded that cigarettes rather than coal-dust exposure caused Mr. Conley’s lung
cancer. (App. 54.)
No. 09-3039        Conley v. National Mines Corp., et al                           Page 6


surgical resection of his lung cancer because it had already metastasized to the hilar
nodes. He also noted, based on the oncologist’s records, that Conley tolerated radiation
therapy well and concluded that there was no evidence in the record suggesting that
Conley would have done better in his fight against lung cancer if he had not also suffered
from pneumoconiosis.

       The ALJ nonetheless concluded that Dr. Broudy and Dr. Dahhan failed to offer
any explanation for disregarding Conley’s lengthy coal-mining career as a possible cause
for his chronic respiratory ailments and instead attributing them solely to his smoking.
Because he found these “conclusory” opinions regarding the diagnosis and etiology of
the bronchitis not to be well reasoned or well documented, the ALJ accorded little
probative weight to Dr. Broudy’s and Dr. Dahhan’s opinions in reaching a decision as
to whether “legal” pneumoconiosis contributed to Mr. Conley’s death. (App. 33.)
Instead, he accorded more weight to Dr. Potter’s report and concluded on the basis of
that report that Mrs. Conley had established by a preponderance of the evidence that Mr.
Conley’s legal pneumoconiosis (COPD and chronic bronchitis) caused or contributed
to his death. He therefore awarded benefits under the BLBA. (App. 33–34.)

       NMC appealed that decision to the Review Board. The Review Board, applying
Sixth Circuit law, held simply that the ALJ had erred in finding there was sufficient
evidence in the record to establish that Conley’s death was hastened by pneumoconiosis
in light of the Sixth Circuit’s holding in Eastover Mining Co. v. Williams, 338 F.3d 501
(6th Cir. 2003). In that case, this Court held that “pneumoconiosis only ‘hastens’ a death
if it does so through a specifically defined process that reduces the miner’s life by an
estimable time.” Id. at 518.

                                           II.

                                           A.

       The Sixth Circuit reviews the legal issues raised in this administrative appeal
de novo but accords deference to relevant factual findings. Eastover Mining, 338 F.3d
at 508. The ALJ’s factual determinations must be upheld if they are supported by
No. 09-3039        Conley v. National Mines Corp., et al                           Page 7


substantial evidence in the administrative record, and the decision as a whole must be
affirmed if the ALJ’s decision was rational, supported by substantial evidence in the
record, and consistent with controlling law. Glen Coal Co. v. Seals, 147 F.3d 502, 510
(6th Cir. 1998). “Where, however, an ALJ has improperly characterized the evidence
or failed to [take] account of relevant record material, deference is inappropriate and
remand is required.” Eastover Mining, 338 F.3d at 508 (citing Dir., OWCP v. Rowe, 710
F.2d 251, 255 (6th Cir. 1983)). Further, a failure by the ALJ to apply the correct legal
standard presents a legal question over which the Review Board and this Court have
plenary review. Arch of Ky., Inc. v. Dir., OWCP, 556 F.3d 472, 477 (6th Cir. 2009).

        Technically, of course, this Court is reviewing the Review Board’s decision
reversing the ALJ, not the ALJ’s decision itself. The Court is not called upon to
determine whether the Review Board’s decision was supported by substantial evidence,
but whether the Review Board correctly concluded that the ALJ’s decision was not
supported by sufficient evidence based upon the legal standards we have established.
Thus, the standards of review for the Review Board and for the Sixth Circuit are the
same. Eastover Mining, 338 F.3d at 508 n.9 (citations omitted).

                                           B.

        “The Black Lung Benefits Act creates an adversarial administrative procedure
designed to require mining companies to pay those miners (or the survivors of those
minors) who legitimately suffer from a class of various coal dust-related pulmonary
injuries commonly categorized as pneumoconiosis.” Eastover Mining, 338 F.3d at 508
(6th Cir. 2003) (internal citation omitted). Under the BLBA and the implementing
regulations, benefits are provided to the eligible survivors of a miner whose death was
due to pneumoconiosis. In order to be eligible for survivor’s benefits, a petitioner bears
the burden of proving, Eastover Mining, 338 F.3d at 508, that the miner had
pneumoconiosis that “arose out of coal mine employment,” and that his death was “due
to pneumoconiosis.” 20 C.F.R. § 718.205(a). For claims arising after 1982, a coal
miner’s death will be considered “due to” pneumoconiosis if either one of the following
criteria is met:
No. 09-3039            Conley v. National Mines Corp., et al                                       Page 8


         (1) Where competent medical evidence establishes that pneumoconiosis
         was the cause of the miner’s death, or
         (2) Where pneumoconiosis was a substantially contributing cause or
         factor leading to the miner’s death or where the death was caused by
         complications of pneumoconiosis. . . .5

Id. § 718.205(c)(1)–(2). The regulations further provide that survivor’s benefits are not
available where “the principal cause of death was a medical condition not related to
pneumoconiosis, unless the evidence establishes that pneumoconiosis was a substantially
contributing cause of death.” Id. § 718.205(c)(4). “Pneumoconiosis is a ‘substantially
contributing cause’ of a miner’s death if it hastens the miner’s death.”                                Id.
§ 718.205(c)(5).

         In the present case, the parties agree that metastatic lung cancer was the principal
cause of Dave Conley’s death. The question before this Court is whether the Review
Board applied the correct legal standard and appropriately reviewed the ALJ’s factual
findings when it concluded, as a matter of law, that Dr. Potter’s opinion was insufficient
to establish that pneumoconiosis “hastened” Mr. Conley’s death.6

                                                    C.

         In Eastover Mining, the ALJ awarded benefits to a miner’s widow and the
Benefits Review Board affirmed. The mining company appealed, and the Sixth Circuit
reversed, holding, on the basis of a number of grounds, that the ALJ’s decision was not
supported by substantial evidence. In that case, the direct cause of the miner’s death was
either acute gastrointestinal bleeding or a pulmonary embolism. His treating physician
submitted a report in which he concluded, “‘within a reasonable degree of medical
probability,’ that pneumoconiosis ‘hastened [Decedent’s] death.’” Eastover Mining, 338
F.3d at 505 (quoting from the administrative record) (alteration in original). In support


         5
         A proven diagnosis of “complex pneumoconiosis” may also establish the requisite causation,
20 C.F.R. § 718.205(c)(3), but it is undisputed here that Mr. Conley did not suffer from complex
pneumoconiosis.
         6
         Although NMC contested on appeal to the Review Board the ALJ’s factual determination that
Mr. Conley had legal as well as clinical pneumoconiosis, it has not raised that issue in the present appeal.
No. 09-3039        Conley v. National Mines Corp., et al                             Page 9


of that opinion the doctor hypothesized that, although the pulmonary embolism was the
direct cause of death, “pneumoconiosis hastened his demise because the miner’s ‘lack
of oxygen [and] his retained carbon dioxide all played an effect on all parts of his
body.’” Id. at 505 n.6 (quoting from the administrative record).

       The Court found that one of the primary deficiencies in the ALJ’s decision was
his reliance upon the treating physician’s opinion linking the miner’s death to his
pneumoconiosis, as that opinion was entirely conclusory and based upon nothing but the
physician’s own unsubstantiated belief:

       Put differently, Woolum [the treating physician] argued that because
       Decedent had pneumoconiosis, his body lacked oxygen and excessively
       retained carbon dioxide. This weakened the miner, “played an effect on
       all parts of his body,” and thereby hastened a death that would have
       occurred anyway from the pulmonary embolus. Even if this is an
       accurate medical conclusion, it is legally inadequate.
       Again, Petitioner must show that pneumoconiosis “hasten[ed] the miner’s
       death.” 20 C.F.R. § 718.205(c)(5). One can always claim, as Woolum
       did, that if pneumoconiosis makes someone weaker, it makes them less
       resistant to some other trauma. If, for instance, a miner with
       pneumoconiosis gets hit by a train and bleeds to death, Woolum (or
       someone adopting his position) would argue that the pneumoconiosis
       “hastened” his death because he bled to death somewhat more quickly
       than someone without pneumoconiosis. This is absurd, of course, and
       presumably not what Congress meant by “hasten.” Under Woolum’s
       interpretation, pneumoconiosis would virtually always “hasten” death to
       at least some minimal degree. Legal pneumoconiosis only “hastens” a
       death if it does so through a specifically defined process that reduces the
       miner’s life by an estimable time. Woolum’s letter is conclusory and
       inadequate because Woolum just asserts that because (in Woolum’s
       opinion) the miner had pneumoconiosis, the disease must have hastened
       his death.

Eastover Mining, 338 F.3d at 517–18 (emphasis added).

       Unless the italicized portion of the quoted passage can be considered dictum, this
panel is bound by it. The petitioner in this case does not seriously contend that it is
dictum, and this panel agrees that it is not. Moreover, consistent with Eastover Mining,
a conclusory, unsupported opinion such as the one offered by Dr. Potter in this case is
No. 09-3039         Conley v. National Mines Corp., et al                           Page 10


insufficient to support the determination that Mr. Conley’s legal pneumoconiosis
hastened his death.

        There is some room for argument, we acknowledge, about what it means to
hasten death “by an estimable time.” Does that mean that every medical opinion must
quantify a precise number of days by which pneumoconiosis hastens death? Will an
estimate of months suffice? Of years? Or will a range of any of the above do the trick?
And what if for a medically legitimate reason an estimate cannot be made? We believe
that, as is so frequently true when it comes to the application of a legal principal, context
and common sense will govern the resolution of these questions. For instance, the
“estimable time” language employed in Eastover Mining does not exist in a vacuum; it
follows upon the heels of the requirement that legal pneumoconiosis be shown by
medical opinion to hasten death “through a specifically defined process.” A conclusory
medical opinion, in other words, will not suffice. Neither will an opinion, like Dr.
Potter’s, that addresses the issue at such a high level of generality—“the healthier we
are, the better we’re able to deal with serious problems”—that it amounts to nothing
more than a conclusion. A medical opinion that pneumoconiosis expedited death
through a “specifically defined process” must explain why that is so and generally
should be able to explain how and to what extent—customarily through a range of
time—that process hastened a specific patient’s death. In that regard, it bears emphasis
that every death, like every person, is different. More precision may legitimately be
expected when it comes to the relationship of legal pneumoconiosis to some primary
illnesses than to others.

        In the end, however, we need not decide today whether a medical opinion may
suffice under Eastover Mining without making some range-of-time estimate in
describing the “specifically defined process” by which legal pneumoconiosis sped the
demise of an individual already suffering from a deadly illness, because the issue is not
presented. Here, Dr. Potter’s opinion fell well short of “specifically defin[ing]” the
process by which pneumoconiosis hastened Dave Conley’s death. As stated in Eastover
Mining, “[o]ne can always claim . . . that if pneumoconiosis makes someone weaker, it
No. 09-3039            Conley v. National Mines Corp., et al                                       Page 11


makes them less resistant to some other trauma.” 338 F.3d at 517. Dr. Potter’s opinion,
like that of the physician in Eastover Mining, even if medically true, is legally
inadequate to support his conclusion that legal pneumoconiosis hastened Dave Conley’s
death.7 The petitioner bore the burden of proof as to that issue, and her failure to present
adequate evidence to support the ALJ’s ruling is fatal to her appeal.

         This Court therefore affirms the decision of the Benefits Review Board.




         7
           The Court notes that the case upon which the Petitioner relies, Brown v. Rock Creek Mining Co.,
996 F.2d 812 (6th Cir. 1993), even if still current, would not dictate a different conclusion. Brown was
decided under the 1992 version of 20 C.F.R. § 718.205, which did not contain the “hastens death”
language included in the current version. Instead, it provided that death would be considered “due to”
pneumoconiosis if pneumoconiosis was a “substantially contributing cause” of death. 20 C.F.R.
§ 718.205(c)(2) and (4) (1992). The primary importance of Brown was that it embraced the “hastens
death” standard that was subsequently incorporated into the language of 20 C.F.R. § 718.205. See Brown,
996 F.2d at 816 (“The statutory language, the administrative purpose in adopting the regulation, and the
well-reasoned interpretations of our sister circuits . . . are persuasive that the appropriate standard to be
adopted by this circuit is that [pneumoconiosis] will be found to be a ‘substantially contributing cause or
factor’ of a miner’s death in a case in which it has actually hastened his death.”). Applying that standard,
the Court in Brown reversed and remanded for payment of benefits based upon a finding that “the
overwhelming evidence was that pneumoconiosis hastened the miner’s death” in that case. Id.
