PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARLETTE RICHARDSON, widow of
Stuart Richardson,
Petitioner,

v.
                                                                     No. 95-1859
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondent.

On Petition for Review of an Order
of the Benefits Review Board.
(93-2497-BLA)

Argued: June 5, 1996

Decided: September 3, 1996

Before WILLIAMS and MOTZ, Circuit Judges, and CURRIE,
United States District Judge for the District of South Carolina,
sitting by designation.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Williams wrote
the opinion, in which Judge Motz and Judge Currie joined.

_________________________________________________________________

COUNSEL

ARGUED: Maureen Hogan Krueger, Jenkintown, Pennsylvania, for
Petitioner. Christian P. Barber, Counsel for Appellate Litigation,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent. ON BRIEF: Thomas S. Williamson, Jr., Solicitor
of Labor, Donald S. Shire, Associate Solicitor, Rodger Pitcairn,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Arlette Richardson (Richardson) appeals an Administrative Law
Judge's (ALJ) order denying benefits on her survivor's claim under
the Black Lung Benefits Act (the Act), 30 U.S.C.A.§ 901-945 (West
1986 & Supp. 1996). The Benefits Review Board (BRB) affirmed the
denial of benefits, holding that the ALJ had acted within his discretion
in rejecting the report of a physician who opined that pneumoconiosis
substantially contributed to the death of her husband, a former coal
miner. Because we find that the ALJ failed to recognize that legal
pneumoconiosis in the form of chronic obstructive lung disease
(COPD) arising from coal mine employment had been established and
omitted from consideration potentially dispositive evidence support-
ing Richardson's claim, we reverse and remand to the ALJ for further
proceedings.

I.

Before Richardson filed her survivor's claim, Stuart Richardson,
her husband and a coal miner for over twelve years, was awarded
benefits on his lifetime claim approximately one year after his death
in October 1986. In the order awarding benefits, the deputy commis-
sioner found that Mr. Richardson had been totally disabled due to
legal pneumoconiosis.1 The Director did not contest the deputy com-
missioner's award of benefits. See 20 C.F.R.§ 725.419 (1995).
_________________________________________________________________
1 Correspondence from the Office of Workers' Compensation Programs
submitted in the proceedings before the ALJ reveals that legal pneumo-
coniosis "was proven pursuant to Regulation Section 718.202(a)(i)A by
the presence of a chronic pulmonary or respiratory impairment diagnosed
in the medical evidence as COPD, COLD, chronic bronchitis and emphy-
sema." (J.A. at 116.)

                    2
Shortly thereafter, proceeding pro se, Richardson filed a survivor's
claim, contending that she was entitled to benefits because her hus-
band's "death was due to pneumoconiosis." 20 C.F.R. § 718.205(a)
(1995). To support her claim before the ALJ, Richardson submitted
the report of Dr. Vito Caselnova, a physician who treated Mr. Rich-
ardson in two of the four hospitalizations in the final year of his life.
In a brief, handwritten report, Dr. Caselnova opined:

          It was a well documented fact that the deceased, Mr. Stu-
          art Richardson suffered from pneumoconiosis as a result of
          working many years in the underground coal mines.

          The pre-existing pneumoconiosis (Black Lung) contrib-
          uted substantially by leaving his lungs in a severely compro-
          mised state prior to the onset of pulmonary cancer. In
          summary, it is a well documented fact that the pneumoconi-
          osis is a contributing factor markedly hastening the miner's
          demise.

(J.A. at 24-25.) Accompanying Dr. Caselnova's report were hospital
records, including a discharge report prepared by Dr. Caselnova dated
July 25, 1986, that noted the presence of COPD.

Additionally, Richardson submitted a discharge report, dated Octo-
ber 5, 1986, and death certificate signed by Dr. H. Rizvi, the physi-
cian who treated Mr. Richardson during his final two hospitalizations.
In the discharge report, Dr. Rizvi noted the presence of COPD, and
on the death certificate, he listed metastatic lung cancer and COPD
as the causes of Mr. Richardson's death.

Responding to Richardson's contentions, the Director offered into
evidence the report of Dr. Leon Cander, a consultant for the Depart-
ment of Labor. After reviewing the medical records, Dr. Cander con-
cluded that Mr. Richardson's death was attributable solely to lung
cancer:

          Although disabling pneumoconiosis, as defined by the Act,
          has been adjudicated to be present, there is no evidence that
          Mr. Richardson's chronic obstructive lung disease was a

                     3
          contributing cause or factor leading to Mr. Richardson's
          death. There is no evidence that a complication of pneumo-
          coniosis was present which caused Mr. Richardson's death.

(J.A. at 23.)

The ALJ denied benefits on Richardson's survivor claim, conclud-
ing that Dr. Caselnova's report was not reasoned or documented. The
ALJ concluded that Dr. Caselnova's report was unreasoned because
Dr. Caselnova never linked Mr. Richardson's COPD with his coal
mine employment to establish the existence of legal pneumoconiosis.2
See 20 C.F.R. § 718.201 (1995) (defining legal pneumoconiosis in
part as "any chronic pulmonary disease resulting in respiratory or pul-
monary impairment significantly related to, or substantially aggra-
vated by, dust exposure in coal mine employment"). Additionally, the
_________________________________________________________________
2 Much confusion in this case stems from the failure of counsel and
witnesses to specify, when they use the term "pneumoconiosis," whether
they are referring to legal or clinical pneumoconiosis, and from the fail-
ure of the ALJ to resolve the conflict when this ambiguity arises in the
record. To make an accurate assessment of whether the ALJ's decision
is supported by substantial evidence, see Jewell Smokeless Coal Corp. v.
Street, 42 F.3d 241, 243 (4th Cir. 1994), the litigants and the ALJ alike
must cooperate to provide a record free from this ambiguity. As we have
observed, clinical pneumoconiosis is only a small subset of the compen-
sable afflictions that fall within the definition of legal pneumoconiosis
under the Act. See Barber v. Director, OWCP, 43 F.3d 899, 901 (4th Cir.
1995). COPD, if it arises out of coal-mine employment, clearly is encom-
passed within the legal definition of pneumoconiosis, even though it is
a disease apart from clinical pneumoconiosis. See Warth v. Southern
Ohio Coal Co., 60 F.3d 173, 175 (4th Cir. 1995).

Without a clear record, review is difficult. For example, to determine
properly whether a physician's opinion is supported by medical records,
the distinction between legal and clinical pneumoconiosis must be made.
In the instant case, Dr. Caselnova opined in his report that the miner suf-
fered from "pneumoconiosis." After reviewing the medical records, how-
ever, we find no specific reference to "pneumoconiosis," although we do
find several to COPD. Therefore, because we do not know whether Dr.
Caselnova was referring to medical or legal pneumoconiosis in his
report, we cannot determine with assurance whether it is supported by
the medical records.

                    4
ALJ concluded that even if the existence of legal pneumoconiosis
were assumed, Dr. Caselnova's report could not establish that "pneu-
moconiosis was a substantially contributing cause or factor leading to
the miner's death or [that] the death was caused by complications of
pneumoconiosis" because of the absence of documentation supporting
the report. 20 C.F.R. § 718.205(c)(2). The ALJ made no mention of
the death certificate signed by Dr. Rizvi that listed COPD as a cause
of death. After an appeal by Richardson, the Benefits Review Board
affirmed on the reasoning of the ALJ.

II.

In order to receive benefits under the Act, a miner's survivor must
prove that the miner suffered from legal pneumoconiosis and that the
pneumoconiosis "`serve[d] to hasten [the miner's] death in any way.'"
See Shuff v. Cedar Coal Co., 967 F.2d 977, 979-80 (4th Cir. 1992)
(quoting the Director's brief), cert. denied, 506 U.S. 1050 (1993).
Richardson asserts that (1) her husband's legal pneumoconiosis has
been proved through the stipulation and concession of the Director,
and (2) the ALJ improperly rejected Dr. Caselnova's report and failed
to consider other evidence supporting a finding that legal pneumoco-
niosis hastened Mr. Richardson's death. We review"the findings of
the ALJ, as affirmed by the BRB, to determine [if they] are supported
by substantial evidence and in accordance with the law." Jewell
Smokeless Coal Corp. v. Street, 42 F.3d 241, 243 (4th Cir. 1994). We
address each of Richardson's contentions in turn.

A.

Contrary to the opinion of the ALJ, Richardson contends that the
existence of legal pneumoconiosis in the form of COPD arising out
of coal mine employment has been legally established. We agree.
Before the ALJ, the Director clearly stipulated to the findings of fact
in the deputy commissioner's award of lifetime benefits. (See J.A. at
83 ("[I]f I'm being asked to stipulate to the contents of [the award of
benefits] I have no problem with that.").) Therefore, the Director
agreed that "as a result of the conditions of coal mine employment
[Mr. Richardson] ha[d] contracted a severe chronic respiratory dis-
ease diagnosed as coal workers' pneumoconiosis, as that term is
defined in the Act and Regulations." (J.A. at 20;) see Fisher v. First

                    5
Stamford Bank & Trust Co., 751 F.2d 519, 523 (2d Cir. 1984) ("[A]
stipulation of fact that is fairly entered into is controlling on the par-
ties and the court is bound to enforce it.") Moreover, in his brief, "the
Director concede[d] that the deputy commissioner awarded benefits
because [Mr. Richardson] suffered from totally disabling COPD aris-
ing out of coal mine employment." (Appellee's Br. at 15.) The Direc-
tor's stipulation and concession are binding on the parties and this
court in this appeal.3 See Hagan v. McNallen (In re McNallen), 62
F.3d 619, 625 (4th Cir. 1995) (holding that concession before bank-
ruptcy court was binding on appeal); American Title Ins. Co. v.
Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) (stating that stipu-
lations and admissions are binding on the parties and the court on
appeal as well as at trial). Combined, the stipulation and concession
establish that at the time of his death Mr. Richardson suffered from
legal pneumoconiosis in the form of COPD arising from coal mine
employment.4 See Plesh v. Director, OWCP, 71 F.3d 103, 108 (3d
_________________________________________________________________
3 Misguidedly, the Director argues that the findings of fact and conclu-
sions of law in the deputy commissioner's award of benefits in the
miner's lifetime claim have no collateral estoppel effect in Richardson's
survivor claim. The Director argues that because he did not contest the
miner's entitlement to benefits in the lifetime claim, the issue of whether
the miner's COPD was caused by coal-mine employment was never "ac-
tually litigated." See Swentek v. USAIR, Inc. , 830 F.2d 552, 561 (4th Cir.
1987) (quoting Otherson v. Department of Justice , 711 F.2d 267, 273
(D.C. Cir. 1983)). Because we find that the Director stipulated to the
contents of the award of benefits in the miner's claim during the proceed-
ings before the ALJ in the survivor's claim, we need not decide whether
the Director is collaterally estopped from litigating the issue of causation
in the survivor's claim. But see Alexander v. Island Creek Coal Co., 12
BLR 1-44 (1988) (holding that survivor was not collaterally estopped
from relitigating whether miner was disabled by a chronic respiratory or
pulmonary disease because of the different standards of proof applicable
to miner's and survivor's claims); but cf. Lisa Lee Mines v. Director,
OWCP, 86 F.3d 1358, 1363 (4th Cir. 1996) (en banc) (stating that in a
successive claim under the Act, "[e]ach of the alternative holdings [on
the miner's prior claim] is presumed to have been correct when made").
4 As this is a case in which there is no responsible operator, we need
not decide whether the Director's stipulation and concession would be
binding on an employer who was not a party to either the stipulation or
concession.

                  6
Cir. 1995) (noting that coal-dust inhalation causes permanent damage
and that pneumoconiosis is a progressive and incurable disease).
Thus, the first element satisfied, we turn now to the issue of whether
substantial evidence supports the ALJ's conclusion that Mr. Richard-
son's legal pneumoconiosis did not hasten his death under Shuff.

B.

Richardson contends that the ALJ erred in ruling that she had not
proved legal pneumoconiosis hastened her husband's death under
Shuff. Richardson supports her assertion by arguing that the ALJ
failed to consider the discharge report and death certificate prepared
by Dr. Rizvi and improperly rejected the report of Dr. Caselnova.
While conceding that the ALJ did not consider the reports of Dr.
Rizvi, the Director responds that the ALJ's failure to weigh those
reports is harmless error and that the ALJ properly rejected Dr. Casel-
nova's report as unreasoned and undocumented. We address these
contentions seriatim.

1.

We cannot find that the failure of the ALJ to consider the discharge
report and death certificate of Dr. Rizvi in making his causation deter-
mination is harmless error. The Director argues that because the hos-
pital records did not establish that Mr. Richardson's COPD arose
from coal mine employment, the listing of COPD as a cause of death
on the death certificate was insignificant. Without a connection
between her husband's COPD and his coal mine employment, the
Director asserts, Richardson is not entitled to benefits under the Act
because she cannot prove that legal pneumoconiosis existed, much
less that it was a substantially contributing cause or factor in her hus-
band's death. See 20 C.F.R. §§ 718.201, 718.205(c)(2).

The Director's argument completely ignores the established fact
that Mr. Richardson suffered from legal pneumoconiosis in the form
of COPD arising from coal mine employment. Although not manifest
from the medical records, in his stipulation and concession, the Direc-
tor himself provides the necessary link between Mr. Richardson's
COPD and his coal mine employment to establish the existence of
legal pneumoconiosis. If credited, the death certificate therefore rep-

                     7
resents relevant evidence that the ALJ failed to consider before con-
cluding that legal pneumoconiosis did not hasten Mr. Richardson's
death under Shuff. Thus, remand is appropriate for the ALJ to revisit
the issue of whether Mr. Richardson's legal pneumoconiosis hastened
his death in light of the death certificate prepared by Dr. Rizvi listing
COPD as a cause of death.5 See Grigg v. Director, OWCP, 28 F.3d
416, 420 (4th Cir. 1994) (agreeing with the Director that remand was
appropriate on ALJ's failure to weigh physician's opinion).

2.

Because of the Director's stipulation and concession, the ALJ also
must reevaluate the report of Dr. Caselnova. The ALJ concluded first
that the report of Dr. Caselnova was not well-reasoned because Dr.
Caselnova never "link[ed] the diagnosis of COPD to a specific cause"
(J.A. at 11), and second, that there was no evidence in the hospital
records supporting Dr. Caselnova's conclusion that pneumoconiosis
was a substantially contributing cause of Mr. Richardson's death. The
Director has conceded, however, that Mr. Richardson's COPD arose
from coal mine employment, the necessary logical connection to
establish the existence of legal pneumoconiosis missing from the
medical records. Thus, in addition to consideration of the death certif-
icate prepared by Dr. Rizvi, we must remand for reconsideration of
Dr. Caselnova's report to determine whether the hospital records sup-
port his finding that pneumoconiosis hastened Mr. Richardson's
death. See King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980)
(remanding case for proper consideration of the evidence because
"[e]ven if legitimate reasons exist for rejecting or discounting certain
evidence, the Secretary cannot do so for no reason or for the wrong
reason").

We are unable to conclude whether the ALJ's finding that Dr.
Caselnova's report is not adequately documented is supported by sub-
stantial evidence. In reevaluating the report of Dr. Caselnova, the ALJ
must resolve whether Dr. Caselnova's use of "COPD" in the hospital
records corresponded with his use of "pneumoconiosis" in his report
prepared in connection with Richardson's claim. In opining that Mr.
_________________________________________________________________
5 Indeed, we find it puzzling that Dr. Cander, after reviewing the medi-
cal evidence, including the death certificate, found no evidence that
COPD was a contributing cause or factor leading to the miner's death
when the death certificate listed COPD as a cause of death.

                     8
Richardson suffered from pneumoconiosis and that pneumoconiosis
hastened his death, Dr. Caselnova failed to specify whether he was
referring to clinical pneumoconiosis or legal pneumoconiosis when he
stated that Mr. Richardson's "pre-existing pneumoconiosis (Black
Lung) contributed substantially" to his death. 6 (J.A. at 24-25.) Thus,
once he resolves this issue, the ALJ will be in a better position to
evaluate whether Dr. Caselnova's report is adequately supported by
the hospital records that were originally attached to the report and to
explain on remand his reasons for crediting or discrediting Dr. Casel-
nova's report.

III.

In summary, we conclude that the ALJ's decision is not supported
by substantial evidence because the Director has through his stipula-
tion and concession established that at the time of his death Mr. Rich-
ardson suffered from legal pneumoconiosis in the form of COPD
arising from coal mine employment; consequently, the ALJ erred in
omitting from consideration the death certificate prepared by Dr.
Rizvi and discrediting Dr. Caselnova's report for its failure to connect
the COPD to coal mine employment. Furthermore, because of the
lack of clarity in the record, we are unable to review the ALJ's con-
clusion that Dr. Caselnova's report is inadequately documented.
Because of the unclear record and the conflicting evidence on the
issue of whether legal pneumoconiosis hastened Mr. Richardson's
death, we remand so that the ALJ may revisit his causation determina-
tion, taking into account the reports of Dr. Rizvi and reviewing Dr.
Caselnova's report in light of the Director's concession of the exis-
tence of legal pneumoconiosis in the form of COPD arising from coal
mine employment.

REVERSED AND REMANDED
_________________________________________________________________
6 If Dr. Caselnova's report refers to the particular medical affliction
known in medical circles as "coal workers' pneumoconiosis," see Hobbs
v. Clinchfield Coal Co., 45 F.3d 819, 821 (4th Cir. 1995), the record
before us does not support his conclusion that pneumoconiosis hastened
Mr. Richardson's death. The hospital records do not contain any evi-
dence of a diagnosis of medical pneumoconiosis, nor does the Director
concede that Mr. Richardson suffered from medical pneumoconiosis. See
discussion supra note 2.

                    9
