PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES STEEL MINING
COMPANY, INCORPORATED,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
                                                                       No. 98-2412
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; IONA
S. JARRELL, Widow of Elgie K.
Jarrell, deceased,
Respondents.

On Petition for Review of an Order of the
Benefits Review Board.
(97-1689-BLA)

Argued: May 3, 1999

Decided: July 28, 1999

Before WILKINS, NIEMEYER, and TRAXLER,
Circuit Judges.

_________________________________________________________________

Reversed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Wilkins and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Howard Gerald Salisbury, Jr., KAY, CASTO, CHANEY
& WISE, Charleston, West Virginia, for Petitioner. Roger Daniel For-
man, FORMAN & CRANE, L.C., Charleston, West Virginia, for
Respondents.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

In this case, the Benefits Review Board affirmed an award of survi-
vor's benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et
seq., that was not "supported by and in accordance with the reliable,
probative, and substantial evidence," as required by the Administra-
tive Procedure Act, 5 U.S.C. § 556(d). Because the Administrative
Law Judge ("ALJ") failed to perform the important gatekeeping func-
tion of qualifying evidence under the Administrative Procedure Act
before relying upon it, he made an award that is untenable under the
Black Lung Benefits Act. Accordingly, we reverse.

I

Elgie Jarrell worked in West Virginia coal mines for more than 18
years and developed simple pneumoconiosis for which he was
awarded disability benefits in April 1991. Around that same time, Jar-
rell also gave up his habit of smoking one and a half packs of ciga-
rettes per day.

In July 1992, Jarrell was diagnosed with lung cancer, which, all
parties agree, was not related to his pneumoconiosis. A portion of Jar-
rell's right lung was removed in July 1992, and thereafter Jarrell was
treated unsuccessfully with chemotherapy and radiation. Over the fol-
lowing two years, Jarrell was admitted to the hospital several times
for continuing cancer treatment. Medical reports relating to his last
stay in the hospital, which lasted from June 27 to July 20, 1994,
observed that Jarrell's cancer had moved to multiple areas in his
body, creating "hot spots" on his skull, around his right orbit, on his
humeri and femurs, and on his spine. During his stay, he was treated
with medication and radiation to relieve pain. In addition to the multi-
ple locations of "hot spots," Jarrell sustained pathologic fractures of
several bones. He also developed patchy pneumonia in the lower lobe

                    2
of his left lung, but even though the pneumonia was persistent, it gen-
erated no fever. Eventually, Jarrell's treating physician, Dr. John F.
DiStefano, concluded that Jarrell's cancer was terminal and that hos-
pital care would no longer help him. Dr. DiStefano therefore recom-
mended that Jarrell be taken home and be put under hospice care.

Three days after Jarrell returned home, he died. While no doctors
attended to Jarrell after his discharge from the hospital, Dr. DiStefano
filled out Jarrell's death certificate, reporting lung cancer as the cause
of death. He reported no other conditions contributing to Jarrell's
death, although the death certificate explicitly provided space for such
a notation.

Shortly after Jarrell's death, in August 1994, Iona Jarrell ("Mrs.
Jarrell"), his wife, filed a claim for survivor's benefits under the Black
Lung Benefits Act against U.S. Steel Mining Co., Inc., claiming that
pneumoconiosis substantially contributed to her husband's death. The
Department of Labor denied her claim in February 1995, on the
grounds that the evidence did not show that pneumoconiosis had
caused Jarrell's death. Mrs. Jarrell appealed, and, following an infor-
mal conference held in September 1995, the Department of Labor
referred Jarrell's medical file to Dr. Muhammad I. Ranavaya to obtain
his opinion as to whether a "diagnosis of death due to pneumoconiosis
can be made consistent with [specified] criteria." In its letter, the
Department advised Dr. Ranavaya that "death will be considered [to
be] due to pneumoconiosis . . . [w]here pneumoconiosis was a sub-
stantially contributing cause or factor leading to the miner's death or
where death was caused by complications of pneumoconiosis [or]
death was hastened by pneumoconiosis." Dr. Ranavaya responded to
the Department's letter stating, "I have reviewed all the provided
medical records & find that a diagnosis of death due to pneumoconio-
sis can not be made consistent with the criteria contained in the
[Department's] letter. It is my reasoned medical opinion that this
miner's death was not caused by pneumoconiosis." Accordingly, the
Department again notified Mrs. Jarrell by letter that her claim was
denied for the reason that it had not been established that "Jarrell's
death was caused or hastened by coal workers pneumoconiosis." She
requested a hearing before an administrative law judge, and her case
was duly transferred to the Office of Administrative Law Judges for
resolution.

                     3
In support of her claim, Mrs. Jarrell presented the opinion of Dr.
Donald L. Rasmussen, a board-certified physician of internal medi-
cine, who, based solely on Jarrell's medical records, gave the follow-
ing opinion about the connection between Jarrell's pneumoconiosis
and his death:

          The patient developed carcinoma of the lung in 1992 and
          underwent a pneumonectomy on the right. There is no evi-
          dence of link his coal mine dust exposure with his carci-
          noma of the lung. He certainly had an adequate smoking
          history to be considered a causative factor.

          During the patient's final hospitalization at Raleigh General
          Hospital he did develop a left lower lobe pneumonia which
          failed to respond to antibiotics. He was discharged to Hos-
          pice care. There is no information concerning his final
          events or the exact circumstances of his death. It is possible
          that death could have occurred as a consequence of his
          pneumonia superimposed upon his chronic lung disease,
          including his occupational pneumoconiosis and occupation-
          ally related emphysema. It can be stated that the patient's
          occupational pneumoconiosis was a contributing factor to
          his death.

Relying solely upon this opinion of Dr. Rasmussen, the ALJ found
that "pneumoconiosis was a substantially contributing cause or factor
leading to [Jarrell's] death" and awarded Mrs. Jarrell benefits. The
ALJ determined that Ranavaya's opinion was irrelevant because "he
made no determination as to whether pneumoconiosis was a contrib-
uting factor to [Jarrell's] death." Similarly, the ALJ refused to credit
Dr. DiStefano's failure to make any contributing cause notation on
Jarrell's death certificate: "[A]lthough the death certificate shows that
lung cancer was the immediate cause of the miner's death, this find-
ing does not preclude the determination that the miner's clinical occu-
pational pneumoconiosis was a contributing factor to his death."

The Benefits Review Board affirmed the ALJ's award of benefits,
and this appeal followed.

                     4
II

To receive black lung benefits as a qualifying surviving spouse of
a miner, the spouse must prove (1) that the miner suffered from pneu-
moconiosis; (2) that the miner's pneumoconiosis arose at least in part
out of coal mine employment; and (3) that the miner's death was due
to pneumoconiosis. See 20 C.F.R. §§ 718.201, 718.203,
718.205(c)(1). If pneumoconiosis was not the principal cause of the
miner's death, the Black Lung Benefits Act entitles a surviving
spouse to benefits only if "the evidence establishes that pneumoconio-
sis was a substantially contributing cause of death." 20 C.F.R.
§ 718.205(c)(4). A showing that pneumoconiosis"hastened" the
miner's death satisfies the substantial contribution requirement of 20
C.F.R. § 718.205(c)(4). See Piney Mountain Coal Co. v. Mays, ___
F.3d ___, 1999 WL 274066, at *2 (4th Cir. May 5, 1999); Shuff v.
Cedar Coal Co., 967 F.2d 977, 979-80 (4th Cir. 1992). The spouse
has the burden of persuasion by a preponderance of the evidence to
establish each of these elements. See 30 U.S.C. § 932(a) (incorporat-
ing 33 U.S.C. § 919(d), in turn incorporating 5 U.S.C. § 554 (the
Administrative Procedure Act), in turn incorporating 5 U.S.C.
§ 556(d)); Director, OWCP v. Greenwich Collieries, 512 U.S. 267,
270-71 (1994); Piney Mountain Coal, 1999 WL 274066, at *2.

The Administrative Procedure Act regulates Black Lung Benefits
Act hearings before ALJs and supplies the standards governing the
receipt of evidence. See 5 U.S.C. § 556(d); Greenwich Collieries, 512
U.S. at 270-71; Underwood v. Elkay Mining, Inc. , 105 F.3d 946, 949
(4th Cir. 1997). Section 556(d) of the Act recognizes the reality that
rigorous exclusionary rules for the admission of evidence make little
sense in hearings before an administrative agency where the ALJ acts
as both judge and factfinder. When the judge is also factfinder, he is
equally exposed to evidence whether he admits it or excludes it. See
Underwood, 105 F.3d at 949. Rules for admission of evidence before
ALJs are thus aimed not so much to protect the ALJ from prejudice
but rather to facilitate efficiency in the process. Because the whole-
sale admission of all evidence would unnecessarily prolong and bur-
den the process, the Administrative Procedure Act provides that in an
administrative hearing:

                    5
          Any oral or documentary evidence may be received, but the
          agency as a matter of policy shall provide for the exclusion
          of irrelevant, immaterial, or unduly repetitious evidence.

5 U.S.C. § 556(d). We have concluded that this provision empowers
the ALJ to admit and consider "all relevant evidence, erring on the
side of inclusion." Underwood, 105 F.3d at 951. We explained:

          Because the ALJ is presumably competent to disregard that
          evidence which should be excluded or to discount that evi-
          dence which has lesser probative value, it makes little sense,
          as a practical matter, for a judge in that position to apply
          strict exclusionary evidentiary rules.

Id. at 949. Thus, the exclusionary rule applicable to an agency pro-
ceeding is essentially limited to relevance.

But even though the more stringent exclusionary rules of evidence,
which are generally applicable to jury trials, are not justified in
agency proceedings, the agency process nonetheless requires that the
ALJ perform a gatekeeping function while assessing evidence to
decide the merits of a claim. To assure both a fairness in the process
and an outcome consistent with the underlying statutory scheme, the
ALJ has, under § 556(d) of the Administrative Procedure Act, the
affirmative duty to qualify evidence as "reliable, probative, and sub-
stantial" before relying upon it to grant or deny a claim. 5 U.S.C.
§ 556(d). Absent such a discipline to qualify evidence, administrative
findings and orders could unacceptably rest on suspicions, surmise,
and speculation. See White v. Apfel, 167 F.3d 369, 375 (7th Cir. 1999)
("Speculation is, of course, no substitute for evidence, and [an
agency] decision based on speculation is not supported by substantial
evidence" (citations omitted)); Peabody Coal Co. v. Smith, 127 F.3d
504, 507 (6th Cir. 1997) (stating that the "miner's pneumoconiosis
must be more than merely a speculative cause of his disability" before
an ALJ can award benefits); Garcia v. DOWCP, 869 F.2d 1413,
1416-17 (10th Cir. 1989) (concluding that a medical expert's state-
ment that a miner's physical condition was "probably" unrelated to
his pneumoconiosis was too speculative for an ALJ to rely on in
denying an award of black lung disability benefits).

                    6
Thus, in an agency proceeding the gatekeeping function to evaluate
evidence occurs when the evidence is considered in decisionmaking
rather than when the evidence is admitted. Even though it arises later
in the administrative process than it does in jury trials, the ALJ's duty
to screen evidence for reliability, probativeness, and substantiality
similarly ensures that final agency decisions will be based on evi-
dence of requisite quality and quantity. As the Supreme Court has
observed, in enacting § 556(d) of the Administrative Procedure Act,
"Congress was primarily concerned with the elimination of agency
decision-making premised on evidence which was of poor quality --
irrelevant, immaterial, unreliable, and nonprobative-- and of insuffi-
cient quantity." Steadman v. SEC, 450 U.S. 91, 102 (1981).

In summary, to prove by a preponderance of the evidence each ele-
ment of a claim before an administrative agency, the claimant must
present reliable, probative, and substantial evidence of such sufficient
quality and quantity that a reasonable ALJ could conclude that the
existence of the facts supporting the claim are more probable than
their nonexistence. And it follows necessarily that if the claimant
presents no evidence meeting these requirements, the preponderance-
of-the-evidence standard cannot be satisfied. See generally, Universal
Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951); see Clinchfield
Coal Co. v. Fuller, No. 98-1949, 1999 WL 427197, at *3 (4th Cir.
June 25, 1999) (remanding where ALJ failed to "fairly and scrupu-
lously measure[ ]" the proffered medical evidence to discern its pro-
bative value); Piney Mountain Coal, 1999 WL 274066, at *8 (noting
that "uncertainty is not proof, and claimants must prove entitlement").

III

We now turn to the issue presented in this case-- whether the
opinion of Dr. Rasmussen satisfied the requirements of 5 U.S.C.
§ 556(d). Because Dr. Rasmussen's opinion was the only evidence
presented to show that Jarrell's death was "due to" pneumoconiosis,
if his opinion does not meet the evidentiary qualifications of § 556(d),
Mrs. Jarrell cannot satisfy the burden-of-proof requirement.

Dr. Rasmussen's opinion centered on his observation that, "[i]t is
possible that [Jarrell's] death could have occurred as a consequence
of his pneumonia superimposed upon his chronic lung disease, includ-

                     7
ing his occupational pneumoconiosis and occupationally related
emphysema." From this observation, Dr. Rasmussen concluded that
"[i]t can be stated" that a nexus existed between Jarrell's pneumoconi-
osis and his death. U.S. Steel Mining argues that this opinion cannot
satisfy Jarrell's burden of persuasion:

          Dr. Rasmussen has merely suggested that such a thing is
          possible. Dr. Rasmussen's letter is far from a reasoned med-
          ical opinion that pneumoconiosis in fact contributed in any
          way to the miner's death. It is merely a statement that it is
          possible that the condition could have contributed to death.

We agree with U.S. Steel Mining. The record shows that Jarrell
experienced a horrific two-year period before his death, fighting can-
cer which had spread to virtually every part of his body. A portion of
his lung had been removed; he had been given chemotherapy; and he
had been given radiation. He was taking numerous painkillers and
was virtually unable to function when he was finally discharged from
the hospital to die at home under hospice care. Jarrell's treating physi-
cian during this period, Dr. DiStefano, concluded that the cause of
death was cancer, and he did not identify any other contributing cause
on the death certificate. Moreover, Jarrell's last month's medical
records show nothing different.

Similarly, before the Department of Labor finally denied Mrs. Jar-
rell's survivor's claim for black lung benefits, it solicited the opinion
of Dr. Ranavaya, inquiring of him whether death could have been
considered "due to pneumoconiosis." In the letter soliciting Dr.
Ranavaya's opinion, the Department of Labor explained that "due to
pneumoconiosis" includes the situations where"pneumoconiosis was
a substantially contributing cause or factor leading to the miner's
death" or where it "hastened" his death. Referring explicitly to these
criteria, Dr. Ranavaya stated that the medical record did not show that
Jarrell's death was due to pneumoconiosis.

Against the backdrop of this record, which provided no evidence
of causation between Jarrell's pneumoconiosis and his pneumonia and
between his pneumonia and his death, Dr. Rasmussen appropriately
acknowledged: (1) that there is no evidence in Jarrell's medical
records that could "link his coal mine dust exposure with this carci-

                     8
noma of the lung," and (2) that he, Dr. Rasmussen, had "no informa-
tion concerning [Jarrell's] final events or the exact circumstances of
his death." Even yet, Dr. Rasmussen posited:"it is possible that death
could have occurred as a consequence of his pneumonia
superimposed upon . . . his occupational pneumoconiosis" (emphasis
added) and therefore "[i]t can be stated that[Jarrell's] occupational
pneumoconiosis was a contributing factor to his death." While Dr.
Rasmussen's statement obviously speculated about possibilities, what
is also noteworthy is that he was unable and unwilling to give an
opinion with any degree of medical certainty that there was some
causal relationship between either Jarrell's pneumoconiosis and his
pneumonia or his pneumonia and his death. He could only say that "it
is possible" that there is a causative link between Jarrell's pneumonia
and his death, and he could not even hypothesize a causal relationship
between the pneumonia and Jarrell's pneumoconiosis. Rather, one
was merely "superimposed" over the other.

Dr. Rasmussen's opinion does not qualify as "reliable, probative,
and substantial" evidence on which the ALJ could base a black lung
benefits award. Moreover, it does not fulfill the claimant's burden of
establishing more-probably-than-not that Jarrell's death was "due to"
pneumoconiosis.

If a claimant in an agency proceeding had the burden of establish-
ing that a traffic light was green his way, he would not satisfy his bur-
den of proving that fact with testimony that "it is possible that it
could" have been green his way. While it is possible it could have
been green, it is also possible that it could have been red or yellow
or even non-functioning. Because the testimony is entirely specula-
tive, it does not advance the claimant's case. More importantly, the
statement that it is possible that the light could have been green does
not exclude, to any degree, the opposite proposition. Therefore, it can-
not establish more likely than not that the light was green.

Similarly, Mrs. Jarrell has failed to advance evidence sufficient to
establish by a preponderance of the evidence that there was a causal
link between Jarrell's pneumoconiosis and his death. The only evi-
dence in the record is Dr. Rasmussen's speculative statement, unsup-
ported by the record that he reviewed, that "[i]t is possible that death
could have occurred as a consequence of his pneumonia superim-

                     9
posed upon . . . his occupational pneumoconiosis." And from this
speculation, he concludes that therefore "it can be stated" that there
is a causative link.

What makes this conclusion yet more speculative is that the record
on which Dr. Rasmussen relied demonstrates that Jarrell's pneumonia
was contracted early on during the last month he was in the hospital
and that even though it was persistent, it was "patchy" and did not
even produce a fever. There is not even a hint in the record that this
pneumonia was related to Jarrell's death or indeed that the pneumonia
was in any way related to Jarrell's pneumoconiosis.

While we considered a somewhat similar factual situation in Piney
Mountain Coal, coming to the conclusion that the evidence there was
sufficient to support an award of benefits, the relationship between
death and the claimant's pneumoconiosis in that case was established
by actual evidence, not by speculation. The testimony in Piney Moun-
tain Coal established that the claimant's death"was respiratory failure
occasioned by an inability to expectorate mucus." Piney Mountain
Coal, 1999 WL 274066, at *7. It was undisputed that the claimant had
"severe" simple coal worker's pneumoconiosis as well as other respi-
ratory diseases and that if the pneumoconiosis were severe, it could
hamper the expectoration of mucus, the established cause of death. Id.
Under those circumstances, we held, "[t]he ALJ could reasonably
infer that one or some combination of [the claimant's pulmonary] dis-
eases," including pneumoconiosis "led to the inability to expectorate"
and therefore to the claimant's death. Id. at *8. In that case, we also
concluded that a physician, who testified that pneumoconiosis "could
be considered a complicating factor in the demise of Mr. Mays," used
the word "could" in a manner consistent with his observed practice of
delivering his opinions on cautious terms in a context where his over-
all opinion was "an affirmative assertion that pneumoconiosis contrib-
uted to Mays' death." Id. at *8, *9, & *8 n.13.

The circumstances in Piney Mountain Coal differ substantially
from those before us. While in Piney Mountain Coal, there was evi-
dence that "severe" pneumoconiosis can prevent the expectoration of
mucus and that the immediate cause of the miner's death was the
inability to expectorate mucus, in the case before us there is no com-
parable evidence that would permit the inference of a causal link

                     10
between pneumoconiosis and the miner's death. Indeed, there is a
total absence of any medical evidence showing that Jarrell's pneumo-
coniosis had any relationship of any kind either to his pneumonia or
to his death. Against such a background, it was pure speculation for
Dr. Rasmussen to have concluded that "[i]t is possible that death
could" have occurred as a consequence of pneumonia which in turn
was only "superimposed" over Jarrell's pneumoconiosis.

Absent Dr. Rasmussen's speculative opinion, the ALJ was without
any evidence upon which to base a finding that Jarrell's death was
hastened by pneumoconiosis. Accordingly, we must vacate the ALJ's
award as unsupported by substantial evidence.

REVERSED

                   11
