                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                      No. 09-2811
                                     _____________

                                CATHERINE M. LIEBEL,
                                   (Widow of P.L.)
                                                   Petitioner

                                           v.

         DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS,
        UNITED STATES DEPARTMENT OF LABOR; DUNAMIS RESOURCES,
                 AMERICAN MINING INSURANCE COMPANY

                                     _____________

   ON PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD
                           (Claim No. GR180288245LW)
              Administrative Law Judge: Honorable Richard A. Morgan
                                 ______________

                        Submitted Under Third Circuit LAR 34.1(a)
                                    October 20, 2010
                                    ______________

         Before: HARDIMAN, GREENAWAY, JR., and NYGAARD, Circuit Judges

                            (Opinion Filed: October 29, 2010)

                                    ______________

                                        OPINION

GREENAWAY, JR., Circuit Judge

      Catherine Liebel (―Liebel‖), widow of deceased coal miner, Paul Liebel

(―Mr. Liebel‖), seeks a petition for review of an Order of the Benefits Review Board’s

(―Board‖ or ―BRB‖) decision affirming the Administrative Law Judge’s (―ALJ‖) decision
                                            1
denying her claim for survivors’ benefits under the Black Lung Benefits Act (―BLBA‖),

30 U.S.C. §§ 901–902, 921–925, 931–944 (1994). Liebel asserts that the ALJ lacked

substantial evidence to credit the testimony of respondent’s medical witness over the

testimony of Liebel’s medical witness. We disagree. For the following reasons, we deny

the petition.

                                    I. BACKGROUND

       We write solely for the benefit of the parties and recount only the essential facts.

       Mr. Liebel worked as a coal miner over a period of twenty-six years. He also had

a significant history of cigarette smoking. After Mr. Liebel died in 2000, Liebel filed a

claim for survivors’ benefits under the BLBA. On August 14, 2007, following several

denials of her claim for benefits during the administrative claims adjudication process

and a denial of her modification request, ALJ Richard A. Morgan granted Liebel a formal

hearing. After the hearing, the ALJ denied Liebel’s claim.

       The ALJ determined that ―[t]he crux of this case rests on the relative weight [the

ALJ] accord[s] to the conflicting medical opinions . . . .‖ (App. 18); see 20 C.F.R.

§ 410.414 (1997) (identifying the four means of establishing the presence of

pneumoconiosis, including x-ray, autopsy/biopsy, presumption, and medical opinion).1


1
 Liebel concedes that the record lacks any documentary medical evidence demonstrating
black lung disease or pneumoconiosis. (App. 13.) There was no radiographic evidence
of pneumoconiosis; there was no autopsy conducted in this case; the lung biopsy did not
reveal any scar reactions from coal dust; and the death certificate and other medical
records did not mention pneumoconiosis. (Id.) Liebel admits that none of the statutory
presumptions apply in this case. A miner is entitled to an irrebuttable presumption of
total disability if the miner is diagnosed by x-rays, biopsies, or autopsies that meet certain
                                              2
       Medical witnesses for Liebel and Respondents, respectively Dr. Michael E. Wald

and Dr. Gregory J. Fino, both agreed that Mr. Liebel died of lung cancer caused by

cigarette smoke and that his coal employment did not cause his severe form of lung

cancer. Both accepted the proposition that cigarette smoke and coal dust could have

contributed to Mr. Liebel’s underlying chronic obstructive pulmonary disease (―COPD‖)

and that the progression of COPD could hasten a death primarily caused by lung cancer

because it could weaken a miner’s pulmonary reserve.

       The physicians disagreed on one critical issue—whether Mr. Liebel’s coal dust

exposure, in fact, impacted his COPD. Dr. Wald indicated that he based his opinion on a

review of the record, including Mr. Liebel’s work history, testimony from Liebel and Mr.

Liebel’s step-daughter regarding Mr. Liebel’s breathing problems, as well as, Dr. Fino’s

conflicting expert report. Based on this data, Dr. Wald opined that Mr. Liebel’s exposure

to coal dust during his coal mine employment contributed to the progression of his

COPD. Dr. Wald stated at his deposition that ―[Mr. Liebel] had chronic obstructive lung

disease and that [the] condition was indeed aggravated by his occupational exposure.‖

(App. 92.) Dr. Wald, upon hearing testimony from Mr. Liebel’s family indicating that

Mr. Liebel had chronic bronchitis, concluded that Mr. Liebel died of respiratory failure.

Dr. Wald determined that Mr. Liebel had COPD and that Mr. Liebel succumbed to lung

cancer sooner than expected because he was weakened by his COPD. (App. 89–93.)




standards; if the miner is diagnosed by other means that meet those same standards; or if
a miner who died on or before March 1, 1978 meets certain standards. 20 C.F.R. §
                                             3
       Dr. Fino reached the opposite conclusion. Dr. Fino testified at deposition on two

occasions and submitted two expert reports articulating his medical findings and his

conclusion that Mr. Liebel’s death was not hastened by pneumoconiosis. Dr. Fino stated

that ―[c]oal mine dust played absolutely no role in [Mr. Liebel’s] death.‖ (Id. at 16.) Dr.

Fino reasoned that Mr. Liebel’s coal dust exposure did not affect the progression of Mr.

Liebel’s COPD, and therefore, did not hasten Mr. Liebel’s death. Specifically, Dr. Fino

explained that Mr. Liebel died, when and how he did, because of the progression of his

severe type of lung cancer—metastatic small cell carcinoma. He noted that, even if Mr.

Liebel’s COPD substantially contributed to Mr. Liebel’s death, his conclusion would not

change because Mr. Liebel’s coal dust exposure did not clinically contribute to the

COPD. In response to Dr. Wald’s medical findings, Dr. Fino emphasized that respiratory

failure was merely the manifestation of Mr. Liebel’s passing.

       The ALJ credited Dr. Fino’s medical opinion over Dr. Wald’s opinion. He stated

that ―Dr. Fino’s opinion is better reasoned and documented and more consistent with the

objective medical evidence, as well [as] the miner’s employment, cigarette smoking, and

medical histories.‖ (Id. at 18.) In support of his conclusion, the ALJ noted that ―[t]he

record contains little, if any, clinical evidence to support Dr. Wald’s conclusion that [Mr.

Liebel’s] death was hastened, albeit indirectly, by coal mine dust exposure (i.e., legal

pneumoconiosis).‖ (Id. at 20.) The ALJ, considering both opinions on the whole and all




718.304–718.306. Mr. Liebel died after March 1, 1978 and was not diagnosed in a
manner that meets any of the standards that entitle a miner to a presumption.
                                             4
of the clinical evidence, determined that Liebel failed to meet her burden of proving that

Mr. Liebel’s death was hastened by pneumoconiosis.

       The Board affirmed the ALJ’s denial. Liebel filed a timely Notice of Appeal.

                 II. JURISDICTION and STANDARD OF REVIEW

        The Board had jurisdiction over the appeal from the ALJ’s decision under 33

U.S.C. § 921(b)(3). We have jurisdiction over this petition for review under section

422(a) of the BLBA, which incorporates section 21(c) of the Longshore and Harbor

Workers’ Compensation Act, 33 U.S.C. § 921(c) (2000).

       We review the Board’s decision for errors of law and to assure the Court that the

Board adhered to its scope of review. Mancia v. Dir., OWCP, 130 F.3d 579, 584 (3d Cir.

1997). ―We exercise plenary review over the ALJ’s legal conclusions that were adopted

by the Board.‖ Hill v. Dir., OWCP, 562 F.3d 264, 268 (3d Cir. 2009) (citing Soubik v.

Dir., OWCP, 366 F.3d 226, 233 (3d Cir. 2004)). The Board was required to accept the

ALJ’s findings of fact if supported by substantial evidence. 33 U.S.C. § 921(b)(3), as

incorporated by 30 U.S.C. § 932(a).

       ―In reviewing the Board’s decision, we must independently review the record and

decide whether the ALJ’s findings are rational, consistent with applicable law and

supported by substantial evidence on the record considered as a whole.‖ Hill, 562 F.3d at

268 (citing Mancia, 130 F.3d at 584). The substantial evidence standard requires such

evidence ―as a reasonable mind might accept as adequate to support a conclusion.‖

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (citations omitted).

                                             5
                                       III. ANALYSIS

         Liebel is only entitled to benefits if she can prove, by a preponderance of the

evidence, that Mr. Liebel’s death was due to pneumoconiosis. 20 C.F.R. § 718.205(c)(4)

(2000); Dir., OWCP v. Greenwich Collieries, 512 U.S. 267, 277–78, 280–81 (1994)

(noting that a benefits claimant loses ―when the evidence is evenly balanced‖). Liebel

must establish the presence of pneumoconiosis and demonstrate that the disease at least

hastened his death. See Lukosevicz v. Dir., OWCP, 888 F.2d 1001, 1004–06 (3d Cir.

1989).

         Due to the absence of documentary evidence of clinical pneumoconiosis in the

record, this appeal turns on the ALJ’s analysis of competing expert medical opinions.

We note at the onset that ―[t]he ALJ has broad discretion to determine the weight

accorded each doctor’s opinion.‖ Balsavage v. Dir., OWCP, 295 F.3d 390, 396 (3d Cir.

2002). The ―ALJ is not bound to accept the opinion or theory of any medical expert, but

may weigh the medical evidence and draw its own inferences.‖ Id. (quoting Mancia, 130

F.3d at 588). ―In weighing medical evidence to evaluate the reasoning and credibility of

a medical expert, however, the ALJ may not exercise absolute discretion to credit and

discredit the expert’s medical evidence.‖ Mancia, 130 F.3d at 588. The ALJ should

reject any conclusory medical opinion that contradicts objective clinical evidence.

Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 163 (3d Cir. 1986).

                                               6
       The ALJ provided specific reasons for selecting Dr. Fino’s opinion: Dr. Fino’s

opinion was well-reasoned and was consistent with objective medical evidence. The ALJ

appropriately exercised his discretion by according greater weight to Dr. Fino’s opinion

that pneumoconiosis did not significantly contribute to Mr. Liebel’s death. Based on our

independent review of the record, we conclude that the ALJ’s decision was supported by

substantial evidence and not contrary to the law. The ALJ thoroughly evaluated all of the

relevant evidence in concluding that pneumoconiosis was not a substantial contributing

cause of Mr. Liebel’s death. The Board properly deferred to these findings.

       Liebel insists that Dr. Wald’s deposition testimony establishes the presence of

pneumoconiosis and the fact that it hastened Mr. Liebel’s death. Liebel contends that the

ALJ should have deemed this testimony uncontradicted because Dr. Fino’s testimony

―should be stricken as hostile to the Act.‖ (Appellant’s Br. 19.) Specifically, Liebel

contends that Dr. Fino’s opinion constitutes a ―philosophical‖ opinion that the Director

has previously rejected—that coal dust produces a de minimis effect on breathing. (Id. at

14–15.) She further argues that Dr. Fino’s testimony relies on the absence of x-ray

evidence in contradiction to regulations of the BLBA. The medical opinions that Dr.

Fino expressed, and which are documented in the record, are not hostile to the Act. After

independently reviewing the record, we resolutely disagree with Liebel’s characterization

of Dr. Fino’s medical opinion.2


2
 For example, according to Liebel, Dr. Fino ―stated he did not believe exposure to coal
dust causes disabling obstruction.‖ (Pet’r’s Br. 5 (citing App. 132–33.)) In the portions
of the record that Liebel cited, however, Dr. Fino makes no such statement. Instead, Dr.
                                             7
       The ALJ was within his discretion to accord greater weight to Dr. Fino’s opinion

and properly concluded that Liebel failed to meet her burden to prove Mr. Liebel’s death

was hastened by pneumoconiosis.

                                   IV. CONCLUSION

       For the reasons set forth above, we will deny Liebel’s petition for review of an

order of the Board.




Fino states that coal dust exposure can contribute to lung disease, and he clarifies that the
manner in which coal dust exposure contributes is in an additive manner, not in an
aggravating manner. (App. 132–33.) Additionally, Liebel mischaracterizes a number of
Dr. Fino’s opinions as general, absolute rules when they were, instead, opinions limited
to Mr. Liebel. For instance, Dr. Fino stated that Mr. Liebel ―died due to lung cancer,
which was due to smoking. Coal mine dust played absolutely no role in his death.‖ (Id.
at 14.) Liebel mischaracterizes this opinion of Dr. Fino to be that Dr. Fino ―doesn’t
believe the disease can be causally connected to non-respiratory death.‖ (Pet’r’s Br. 14.)
                                              8
