               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0858n.06

                                          No. 10-3558

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                       FILED

DOROTHY KIDD,                                   )                                 Dec 19, 2011
                                                )                           LEONARD GREEN, Clerk
       Petitioner,                              )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DEPARTMENT OF LABOR
CONSOLIDATION COAL COMPANY;                     )   BENEFITS REVIEW BOARD
DIRECTOR, OFFICE OF WORKER’S                    )
COMPENSATION PROGRAMS, UNITED                   )
STATES DEPARTMENT OF LABOR,                     )
                                                )
       Respondents.


       Before: MERRITT, CLAY and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. After her husband passed, Dorothy Kidd filed a claim for

survivor’s benefits under the Black Lung Benefits Act. Finding insufficient support in the record

for the supervising autopsy doctor’s opinion that pneumoconiosis was one of the causes of Mr.

Kidd’s death, an Administrative Law Judge denied benefits. Because the ALJ did not address one

of the key statements in the doctor’s opinion, we reverse and remand.


                                               I.


       The parties agree that Donald Kidd had pneumoconiosis when he died in 2003 at the age of

64. They agree that he also suffered from liver and kidney disease. And they agree that he worked

in the coal mines of Consolidation Coal Company for at least seventeen years.
No. 10-3558
Kidd v. Consolidation Coal Co.

       The question is whether Mr. Kidd’s death was caused by pneumoconiosis, either in full or

in part. Mrs. Kidd says it was, relying on the medical opinion of the doctor who supervised Mr.

Kidd’s autopsy, Dr. Booth. Consolidation Coal says it was not, contending that Mr. Kidd’s liver and

kidney failure caused his demise and pointing to the medical opinions of Drs. Tomashefski and Fino,

who found he would have died in the same way and at the same time even if he did not have

pneumoconiosis.


       An Administrative Law Judge initially agreed with Mrs. Kidd.                He found that

pneumoconiosis contributed to Mr. Kidd’s death and awarded survivor’s benefits under the Act. The

Benefits Review Board reversed, reasoning that the ALJ inadequately explained his reliance on Dr.

Booth’s testimony over that of the other doctors. On remand, the ALJ found that Dr. Booth’s

opinion was too conclusory to support an award. The Benefits Review Board affirmed.


                                                II.


       Mrs. Kidd seeks survivor’s benefits on the ground that pneumoconiosis was a “substantially

contributing cause” of her husband’s death.       20 C.F.R. § 718.205(c)(2).     A “substantially

contributing cause” is one that “hastens the miner’s death.” Id. § 718.205(c)(5). To meet this

requirement, the claimant must present medical evidence describing “a specifically defined process”

by which the pneumoconiosis “reduce[d] the miner’s life by an estimable time.” Eastover Mining

Co. v. Williams, 338 F.3d 501, 518 (6th Cir. 2003). That evidence must be something more than “a




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Kidd v. Consolidation Coal Co.

conclusory, unsupported [medical] opinion” about causation. Conley v. Nat’l Mines Corp., 595 F.3d

297, 303 (6th Cir. 2010).


       Ordinarily, we will affirm the ALJ’s decision whether to grant benefits if it is supported by

substantial evidence. Id. at 301. But “[w]here . . . an ALJ has improperly characterized the evidence

or failed to account [for] relevant record material, deference is inappropriate and remand is

required.” Eastover Mining, 338 F.3d at 508.


       Just such an improper characterization and omission occurred here. Dr. Booth stated clearly

that he thought pneumoconiosis contributed to Mr. Kidd’s death. The ALJ found that Dr. Booth

failed to offer sufficient objective support for this opinion, rendering it “conclusory,” and therefore

gave Dr. Booth’s views little, if any, weight in his analysis. JA at 214. But the ALJ’s analysis of

this issue consisted of just two sentences and, crucially, made no mention of Dr. Booth’s statement

that pneumoconiosis “accentuates the chronic obstructive pulmonary disease and accelerates the

desiccation of the lungs.” JA 43. This statement suggested the avenue by which the disease could

have hastened Mr. Kidd’s death—the very thing that the ALJ found lacking in Dr. Booth’s

testimony. As such, the ALJ’s failure “to account [for this] relevant record material” means that

“deference is inappropriate and remand is required.” Eastover Mining, 338 F.3d at 508. Mrs. Kidd

asks for no more than a remand, and that is what she is entitled to.


       That said, Mr. Kidd died in 2003, and while the closeness of the case provides some

explanation for the length of time it has taken to resolve this dispute, the time has come to reach a


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Kidd v. Consolidation Coal Co.

final benefits decision. In the light cast by today’s decision, it is now clear that Dr. Booth’s opinion

should be credited. When read in context, his testimony does not equivocate in its finding that

pneumoconiosis was a cause of the decedent’s death. To the extent Dr. Booth qualified his

testimony, the qualification accounted for the difficulty of apportioning the exact causes of death on

a percentage basis among Kidd’s pneumoconiosis, liver disease and kidney disease, a level of

precision not required by the benefits inquiry. Whether through a concession by the company that

benefits now must be awarded or through an expedited hearing on remand, the time has come for

a prompt final benefits decision.


                                                  III.


        For these reasons, we remand to the ALJ for further consideration.




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