UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANCES E. KIRK, Widow of Lat
Kirk,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                                   No. 95-1710
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
ISLAND CREEK COAL COMPANY;
THYSSEN MINING CONSTRUCTION
COMPANY,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(93-1321-BLA)

Argued: March 5, 1996

Decided: May 23, 1996

Before HALL, WILKINS, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Williams wrote
an opinion concurring in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Martin Douglas Wegbreit, CLIENT CENTERED
LEGAL SERVICES OF SOUTHWEST VIRGINIA, INC., Castle-
wood, Virginia, for Petitioner. Mary Lou Smith, HOWE, ANDER-
SON & STEYER, Washington, D.C.; Douglas Allan Smoot,
JACKSON & KELLY, Charleston, West Virginia, for Respondents.
ON BRIEF: William H. Howe, Daniel E. Durden, HOWE, ANDER-
SON & STEYER, Washington, D.C.; Ann B. Rembrandt, JACKSON
& KELLY, Charleston, West Virginia, for Respondents.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Frances Kirk, the widow of Lat Kirk, petitions for review of the
denial of her claim for survivor's benefits under the Black Lung Ben-
efits Act, 30 U.S.C. §§ 901 et seq. Because the finding that pneumo-
coniosis did not contribute to or hasten the miner's death is in
accordance with law and supported by substantial evidence, we
affirm.

I.

Lat Kirk worked in the mines for over twenty years. He also
smoked cigarettes and drank a good deal of alcohol. In 1986 and
1987, he was hospitalized on three occasions for severe alcohol abuse.

On August 17, 1988, in Columbus, Ohio, Kirk suffered a massive
right subdural hematoma.1 He never regained consciousness.

On October 4, 1988, he was transferred to a hospital in Lebanon,
Virginia, near his home. An x-ray taken on admission showed a clear
right lung but atelectasis and/or infiltrate in the middle and lower left
lung. A laboratory culture revealed a bacterial infection, which
_________________________________________________________________
1 How he sustained this injury is not in the record.

                    2
quickly worsened into severe bronchopneumonia. He then improved
gradually. On October 20, as preparations were underway to transfer
Kirk to a nursing home, his fever spiked to 102 degrees. More lab
work was done, and he was found to have multiple bacterial infec-
tions, not only of the lung but at a gastrostomy site. His bronchopneu-
monia steadily worsened, and he died on November 14, 1988.

An autopsy was performed. Just about everything that could col-
lapse in the human cardiopulmonary system had collapsed. Kirk's
lungs had filled with secretions because of his inability to cough,
which was in turn caused by his lack of consciousness. Some gastric
contents had also been aspirated into his lungs. His bronchopneumo-
nia was purulent (i.e., pus-forming), and the infection had spread to
adjacent ribs (osteomyelitis).

Beneath this acute illness, Kirk's lungs showed several chronic dis-
eases as well. He had bullous emphysema, interstitial fibrosis, healed
granulomas of the right lung, and mild to moderate coal worker's
pneumoconiosis.

Kirk's widow filed this claim for survivor's black lung benefits.
Two entities -- Island Creek Coal Company and Thyssen Mining
Construction Company -- were identified as responsible operators.
An administrative law judge (ALJ) heard the claim and rejected it.
The Benefits Review Board of the Department of Labor (BRB)
affirmed, and Mrs. Kirk petitioned for review.

II.

The permanent regulations at 20 C.F.R. Part 718 apply to this
claim. Therefore, Mrs. Kirk must prove by a preponderance of the
evidence that her husband's death was "due to pneumoconiosis." 20
C.F.R. § 718.205(a), (c). A death is due to pneumoconiosis if the dis-
ease actually "hastens death in any way." Shuff v. Cedar Coal Co.,
967 F.2d 977 (4th Cir. 1992), cert. denied, 506 U.S. 1050 (1993). We
must affirm the denial of benefits if it is in accordance with law and
supported by substantial evidence. Amigo Smokeless Coal Co. v.
Director, OWCP, 642 F.2d 68 (4th Cir. 1981).

                    3
Some things are clear here. Coal mine employment did not cause
Kirk's hematoma or resulting coma. Coal mine employment did not
cause the bronchopneumonia; bacteria did. Mrs. Kirk's case depends
solely on Dr. Robinette's opinion that pneumoconiosis weakened
Kirk's lungs so as to make them more susceptible to death from
severe bronchopneumonia.

Respondent Thyssen contends that such susceptibility would not
constitute "hastening" under Shuff. We are not persuaded. Diseases,
like jackals on the savanna, kill the weak more readily than the strong.
Had the ALJ credited Dr. Robinette, Mrs. Kirk would be entitled to
benefits under Shuff.

But the ALJ did not credit Dr. Robinette. Instead, he credited the
army of well-credentialed pathologists marshaled by the respondents,
who, unlike Dr. Robinette, had reviewed the autopsy slides.2 The
reports of these pathologists paint this scenario:

          (1) a person in a coma has no cough reflex;

          (2) phlegm and secretions that should be expectorated
          build up in the respiratory tract;

          (3) these secretions provide a prime breeding ground for
          bacteria;

          (4) pneumonia develops, producing more pus and more
          breeding ground; and

          (5) the victim eventually dies.

According to these doctors, coal mine employment played no role
in Kirk's death; Kirk would have died at the same time in the same
manner whether he had had pneumoconiosis or not. These opinions
constitute substantial evidence.
_________________________________________________________________

2 Dr. Robinette is not a pathologist, though he did examine Kirk on a
referral a couple of weeks before Kirk's death.

                    4
There is, however, one point on which the claimant can and does
make some hay. One of the operators' physicians, Dr. Kleinerman,
speculated at deposition that aspirated "food particles," inhaled when
Kirk tried to eat while in a depressed state of consciousness, probably
led to the bronchopneumonia. Mrs. Kirk makes a persuasive case that
the doctor is wrong about this detail.

Mrs. Kirk concedes that "gastric contents" (though not "food parti-
cles") were found in Kirk's lungs at death, but asserts that there is
nothing especially peculiar about that. Aspiration often occurs at or
just before death.3 There is no evidence that Kirk was given food by
mouth at any point after he suffered his hematoma. Though reflux of
and aspiration of gastric contents can occur in a tube-fed comatose
patient, it is nigh impossible for a person, conscious or not, to aspirate
only into the left lung, because of the size and location of the bronchi.
Kirk's bronchopneumonia began in and for several weeks was con-
fined to the left lung, so it is doubtful that aspiration of food caused
it.

Though she has done so ably, the claimant has battled a straw man
here. Lat Kirk died of bronchopneumonia; whether it was caused by
unexpectorated pus or aspirated food is not relevant. The frailty of an
irrelevant defense hypothesis does nothing to help Mrs. Kirk, because
she has the burden of proof. She must show that her husband's death
from bronchopneumonia was somehow hastened by pneumoconiosis.
Dr. Robinette felt that it was, but we cannot say that the ALJ's deci-
sion to the contrary is unsupported by substantial evidence.4

The final decision of the BRB is affirmed.

AFFIRMED
_________________________________________________________________
3 Dr. Robinette estimated that three out of four autopsies reveal some
aspirated stomach contents. The other medical propositions in this para-
graph are from Dr. Robinette's deposition testimony.
4 We reject Mrs. Kirk's assertion that the level of detail in the ALJ's
opinion was insufficient. ALJs must explain their decisions well enough
that we may engage in meaningful review, but they have no duty of pro-
lixity.

                     5
WILLIAMS, Circuit Judge, concurring in the judgment:

I concur in the judgment that Mrs. Kirk is not entitled to benefits
but write separately to dispel any suggestion that the "hastening
death" standard in Shuff v. Cedar Coal Co. , 967 F.2d 977 (4th Cir.
1992), cert. denied, 506 U.S. 1050 (1993), would have been satisfied
if the ALJ had credited the opinion of Dr. Robinette. The majority did
not need to reach this issue because substantial, credible medical evi-
dence supports the ALJ's conclusion that there was no relationship
between Kirk's simple pneumoconiosis and his death.

I.

Our standard of review regarding a denial of benefits under the
Black Lung Benefits Act is extremely deferential. As we explained in
Grizzle v. Pickands Mather & Co./Chisholm Mines , 994 F.2d 1093,
1096 (4th Cir. 1993), "[l]ike the [BRB], we must affirm the factual
findings of the ALJ if they are supported by substantial evidence."
Substantial evidence means "`such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.'" Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence con-
sists of more than a scintilla of evidence but may be less than a pre-
ponderance. See Shively v. Heckler, 739 F.2d 987, 989 (4th Cir.
1984). As we explained in Shively, "[i]f there is evidence to justify a
refusal [to enter judgment as a matter of law] were the case before a
jury, then there is `substantial evidence.'" Id. We must sustain the
ALJ's decision, even if we disagree with it, provided it is supported
by substantial evidence. See Smith v. Schweiker , 795 F.2d 343, 345
(4th Cir. 1986). The "`sole power to make credibility determinations
and resolve inconsistencies in the evidence'" rests with the ALJ, not
the reviewing court. Grizzle, 994 F.2d at 1096 (quoting Freeman
United Coal Mining Co. v. Benefits Review Bd., 912 F.2d 164, 168
(7th Cir. 1990)). If the ALJ's decision is "adequately supported by the
evidence and not inconsistent with the law[,] the [ALJ's] determina-
tion is conclusive, and it is immaterial that the facts permit the draw-
ing of diverse inferences." Parker v. DOWCP , 590 F.2d 748, 749 (8th
Cir. 1979).

                    6
II.

Assuming, without deciding, that Mrs. Kirk did not procedurally
default in bringing this appeal,* the sole issue presented for review
is whether substantial evidence supports the ALJ's decision to deny
survivor's benefits because pneumoconiosis played no role in Kirk's
death. Here, the overwhelming, substantiated medical evidence sup-
ports the ALJ's conclusion to deny benefits, thereby compelling us to
affirm; we need proceed no further. The regulations concerning the
award of survivor's benefits provide in pertinent part:

         For the purpose of adjudicating survivors' claims . . . death
         will be considered to be due to pneumoconiosis if any of the
         following criteria is met:

         (1) Where competent medical evidence established that
         the miner's death was due to pneumoconiosis, or

         (2) Where pneumoconiosis was a substantially contribut-
         ing cause or factor leading to the miner's death or where
         the death was caused by complications of pneumoconiosis,
         or

         (3) Where the presumption set forth at § 718.304 is appli-
         cable.

           (4) However, survivors are not eligible for benefits where
           the miner's death was caused by a traumatic injury or 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.
_________________________________________________________________
*Before the BRB, Mrs. Kirk asserted that the ALJ did not make spe-
cific factual findings, failed to explain properly the evidence, failed to
explain adequately his reasons for denying benefits, and failed to cite the
applicable regulations. In challenging the sufficiency of the evidence
before us, Mrs. Kirk is raising an issue for the first time on appeal. Even
excusing Mrs. Kirk's procedural default, she cannot prevail on the mer-
its.

                    7
20 C.F.R. § 718.205(c) (1995) (emphasis added). Kirk died of car-
diopulmonary arrest, which was caused by respiratory failure, which,
in turn, was caused by pneumonia. With the sole exception of Dr.
Robinette, every physician opined that simple pneumoconiosis was
not a factor causing the pneumonia, and thus, did not contribute to or
hasten Kirk's death for purposes of § 718.205(c). In fact, six physi-
cians opined categorically that simple pneumoconiosis played no role
in Kirk's death. The ALJ's decision to deny benefits because pneu-
moconiosis played no role in Kirk's death is based on substantial evi-
dence, contradicted only by Dr. Emory Robinette's unsubstantiated
opinion that Kirk's death was related to his simple pneumoconiosis.
A review of the record demonstrates that we must affirm given that
substantial evidence supports the ALJ's decision.

First, Dr. Dwight Bailey's final diagnosis stated that Kirk suffered
a subdural hematoma, right parietal infarct, recurrent pneumonia, res-
piratory failure, left lung atelectasis and enterococcus wound infec-
tion. In completing Kirk's death certificate, Dr. Bailey attributed
Kirk's death to cardiopulmonary arrest due to respiratory failure due
to pneumonia. Significantly, pneumoconiosis was not among the "sig-
nificant conditions contributing to death" listed on the death certifi-
cate. (J.A. at 50.) Dr. Bailey opined neither that pneumoconiosis was
a contributing cause of death nor that it hastened Kirk's death.

Second, Dr. Mario Stefanini's autopsy report, commissioned by
Mrs. Kirk, while confirming that Kirk suffered from simple pneumo-
coniosis, did not state that pneumoconiosis contributed to or hastened
Kirk's death. Rather, the autopsy report is conspicuously silent
respecting whether pneumoconiosis contributed to or hastened Kirk's
death.

Third, after evaluating the autopsy slides and medical records, Dr.
Jerome Kleinerman, a pathologist and chairman of the committee that
formulated the histologic standards for diagnosing pneumoconiosis,
stated that Kirk suffered from simple pneumoconiosis. Moreover, Dr.
Kleinerman opined that Kirk's death was due to a subdural hema-
toma, bronchopneumonia, cachexia and possible aspiration of food,
via a food tube, into the lung. Quite revealingly, Dr. Kleinerman
stated that "the minimal simple coalworkers pneumoconiosis . . . did
not in anyway [sic] contribute to or cause[Kirk's] demise because the

                    8
coalworkers pneumoconiosis was so minimal in extent that it did not
contribute in anyway [sic] to his death." (J.A. at 59.) Additionally, Dr.
Kleinerman testified that Kirk's simple pneumoconiosis had no rela-
tionship to his bronchopneumonia, nor did it contribute to nor hasten
Kirk's death. Finally, Dr. Kleinerman stated that Kirk would have
died when and how he died regardless of whether he had simple pneu-
moconiosis.

Fourth, Dr. Raphael Caffrey, also after reviewing the autopsy slides
and medical reports, found that while Kirk had simple pneumoconio-
sis, it neither contributed to nor hastened his death. According to Dr.
Caffrey, there was no causal connection between Kirk's death and his
simple pneumoconiosis. In fact, Dr. Caffrey was explicit in his con-
clusion, opining that "the simple coal workers pneumoconiosis did
not in any way contribute to his death nor caused his death. The sim-
ple coal workers pneumoconiosis alone would not have caused him
significant pulmonary impairment, in my opinion." (J.A. at 67.)

Fifth, Dr. Richard Naeye, Professor of Pathology, examined the
autopsy slides and stated that Kirk's pneumoconiosis was "too mild
to have had any role in this man's death." (J.A at 56.) Like Drs.
Kleinerman and Caffrey, Dr. Naeye was a certified pathologist.

Sixth, Dr. Gregory Fino, a pulmonary specialist, concluded that
Kirk did indeed suffer from simple pneumoconiosis, but died as a
result of the subdural hematoma and its attendant complications.
According to Dr. Fino, Kirk's simple pneumoconiosis was too mild
to have contributed to or hastened his death. Dr. Fino's diagnosis that
Kirk would have died when and how he died regardless of his simple
pneumoconiosis comports with that of Drs. Kleinerman and Caffrey,
thereby refuting Dr. Robinette's conclusion that simple pneumoconio-
sis contributed to Kirk's death.

Seventh, Dr. Thomas Jarboe, also a pulmonary specialist, opined
that while Kirk suffered from simple pneumoconiosis, it was far too
mild to have played any role in his death. Dr. Jarboe opined that
Kirk's history of severe alcoholism and his smoking habit caused the
conditions that led to Kirk's demise. Agreeing with his colleagues,
Dr. Jarboe concluded that pneumoconiosis had "[no] significant effect
on [Kirk's] course prior to his death." (J.A. at 81).

                    9
Eighth, after reviewing Kirk's medical records, Dr. W.K.C. Mor-
gan, yet a third pulmonary specialist, concluded that pneumoconiosis
neither contributed to nor hastened Kirk's death. Dr. Morgan attri-
buted Kirk's demise to "bronchopneumonia and aspiration caused by
impaired consciousness and an inability to cough out secretions."
(J.A. at 128.) According to Dr. Morgan, Kirk's airway obstruction
and resulting "impaired ventilatory capacity were not related to the
minimal coal workers' pneumoconiosis, but to chronic airflow limita-
tion induced by cigarette smoking." (J.A. at 129.) This surfeit of med-
ical data constitutes substantial evidence supporting the ALJ's
decision. See Doss v. DOWCP, 53 F.3d 654, 659 (4th Cir. 1995)
(affirming the ALJ in holding that twelve x-rays, three well-reasoned
medical opinions and non-qualifying blood gas and non-qualifying
pulmonary function test results constituted substantial evidence and
thus affirmed the ALJ).

In contrast to this abundant support for the conclusion that pneu-
moconiosis did not hasten Kirk's death, we have the contrary opinion
of Dr. Emory Robinette, who concluded that Kirk died from respira-
tory complications due at least in part to coalworker's pneumoconio-
sis. For good reasons, the ALJ put little stock in Dr. Robinette's
opinion: Dr. Robinette was not Kirk's treating physician and thus his
opinion is not entitled to great weight, Kirk's protestations to the con-
trary notwithstanding; rather, Dr. Robinette saw Kirk one time --
while Kirk was comatose and on his deathbed. Unlike Drs. Naeye,
Kleinerman, and Caffrey, Dr. Robinette did not examine the autopsy
slides to form his opinion, nor was Dr. Robinette a pathologist. Dr.
Robinette conceded on cross-examination that he did not know that
Kirk smoked up to two packs of cigarettes per day for several years.
Critically, Dr. Robinette could offer no reasoning or rationale for
arriving at the conclusion that simple pneumoconiosis contributed to
or hastened Kirk's death; in fact, by his own admission, Dr. Robinette
reviewed only Drs. Stefanini's and Naeye's pathological reports, and
neither states that pneumoconiosis contributed to nor hastened Kirk's
death. Dr. Robinette's "opinion" is no more than a shot in the dark;
it is not based on any objective medical data.

III.

In light of this evidence, I do not agree with the premise on page
four of the majority opinion that the "hastening death" standard under

                     10
Shuff can be satisfied by crediting an unsubstantiated opinion that
pneumoconiosis weakened Kirk's lungs, thereby rendering him more
susceptible to death from severe bronchopneumonia. Whereas the
overwhelming medical evidence in Kirk's case eliminates any possi-
bility that pneumoconiosis hastened his death, in Shuff we confronted
inconclusive medical evidence and an inconclusive determination by
the ALJ. The Shuff court concluded that"pneumoconiosis should be
considered a substantially contributing cause of a miner's death if it
actually hastened the miner's death." Shuff, 967 F.2d at 979-80
(emphasis added) (internal quotation marks omitted). In Shuff, the
ALJ in fact stated that pneumoconiosis "may have hastened . . .
death," yet denied benefits because the miner's death from pancreatic
cancer was "imminent." Id. at 979 (internal quotation marks omitted).
According to the ALJ, therefore, pneumoconiosis could not have con-
tributed to or hastened the miner's death. Because we could not deter-
mine in Shuff whether the ALJ concluded that pneumoconiosis
substantially contributed to or actually hastened the miner's death, we
reversed a denial of survivor's benefits and remanded the case to the
BRB for remand to the ALJ given "the inconclusive nature" of the
ALJ's findings regarding whether pneumoconiosis had hastened
death. See id. at 980. Also, the ALJ's opinion did not provide what
evidence did or did not support his conclusion; rather, his opinion
merely recited that although metastatic pancreatic cancer was the pre-
dominant cause of Shuff's death, the immediate precipitating cause of
death was pneumonia; thus, there was no explanation as to whether
the pneumonia was caused by pneumoconiosis, see id. at 979, and
hence the need arose to make this factual determination on remand,
see id. at 980.

In contrast with Shuff, in the instant appeal a plethora of medical
evidence establishes conclusively that pneumoconiosis did not con-
tribute to or hasten Kirk's death to any degree. Indeed, the evidence
demonstrates that simple pneumoconiosis was not a factor at all in
Kirk's death. Given this conclusive evidence, we need not entertain
the academic issue of whether the Shuff"hastening death" standard
may be satisfied if a miner's pneumoconiosis renders him more sus-
ceptible to pneumonia. Accordingly, I cannot agree with the majori-
ty's assertion that if the ALJ accepted "Dr. Robinette's opinion that
pneumonoconiosis weakened Kirk's lungs so as to make them more
susceptible to death from severe bronchopneumonia . . . Mrs. Kirk

                    11
would have been entitled to benefits under Shuff ." Maj. op. at 4.
Given the conclusive nature of the evidence, our inquiry terminates
prior to the majority's reaching out to address the"hastening death"
standard under Shuff.

Even if the ALJ had accepted Dr. Robinette's opinion that pneumo-
coniosis played no role in Kirk's death, Mrs. Kirk would not have
been entitled to benefits. Dr. Robinette's unsubstantiated and uncor-
roborated opinion, standing alone, would not constitute substantial
evidence in support of an award of benefits. Not only, therefore, is
there no basis for reaching the issue of whether Mrs. Kirk would be
entitled to benefits under Shuff had the ALJ credited Dr. Robinette's
testimony, but the majority's conclusion is simply contrary to the
medical evidence. Moreover, under the majority's interpretation of
the Shuff "hastening death" standard, virtually every miner with pneu-
monoconiosis, or his survivor, would qualify for benefits.

IV.

I concur in the holding that Mrs. Kirk is not entitled to benefits, but
I cannot concur in the majority's reasoning in arriving at that conclu-
sion. Here, substantial evidence, indeed, overwhelming evidence, sup-
ported the ALJ's conclusion to deny benefits based on the fact that
simple pneumoconiosis played no role in Kirk's death. This conclu-
sion being amply supported, we need not reach the further issue of the
"hastening death" standard under Shuff. Accordingly, I concur only in
the judgment.

                    12
