                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2006

Miller v. Director OWCP
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4177




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-4177


                              ELIZABETH E. MILLER,

                                                Petitioner

                                           v.

               DIRECTOR, OWCP, United States Department of Labor

                                                Respondent



                         On Appeal from a Decision and Order
                            of the Benefits Review Board
                               (BRB No. 03-0819BLA)


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 12, 2006

              Before: BARRY, AMBRO and ALDISERT, Circuit Judges

                               (Filed: January 30, 2006)



                                      OPINION


AMBRO, Circuit Judge

      In this black lung benefits claim, the administrative law judge (ALJ) discounted

the medical opinion of a miner’s treating physician. But—among other errors—the ALJ
incorrectly attributed the physician’s opinion to the physician’s father. Because the

ALJ’s consideration of this medical opinion was flawed, we vacate the decision and

remand for a reexamination of the evidence.

                    I. Factual Background and Procedural History

       We are writing solely for the parties, so we provide a brief summary of the

relevant facts.

       Under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945, benefits are awarded to

coal miners who are totally disabled due to pneumoconiosis or to the survivors of coal

miners whose death is due to pneumoconiosis. Pneumoconiosis, commonly known as

black lung, is a lung disease resulting from the inhalation of coal dust.

       Elizabeth Miller is the widow of William Miller, a former coal miner. While he

was alive, Miller filed a living miner’s claim for benefits under the Act. His first claim,

in August 1973, was denied. After his second claim, filed in March 1983, Miller was

found totally disabled due to pneumoconiosis and entitled to benefits. He received

benefits from 1983 until 2001.

       Miller had used oxygen 24 hours a day, used a wheelchair, and slept downstairs

because he could not go up his steps. He had been hospitalized several times in the last

year of his life.

       On October 7, 2001, Miller experienced shortness of breath and reported to the

hospital emergency room. He did not respond to treatment and died the next day, October



                                              2
8.1

      Elizabeth Miller (for clarity, in this opinion we refer to her as “the claimant”) filed

this claim for survivor’s benefits on October 15, 2001. Her claim was denied in May

2002, and she subsequently requested a formal hearing. The ALJ filed an opinion in

August 2003 denying the claim; the claimant appealed. The Benefits Review Board

affirmed the ALJ’s decision in July 2004. Claimant petitions for review of the Board’s

decision.

                       II. Jurisdiction and Standard of Review

      The Benefits Review Board had jurisdiction over the appeal from the ALJ’s

decision under 33 U.S.C. § 921(b)(3), incorporated by reference into 30 U.S.C. § 932(a).

We have jurisdiction over this case as an appeal from a final order of the Board under 33

U.S.C. § 921(c), also incorporated by reference into 30 U.S.C. § 932(a). This case is in

our Court because Miller was a coal miner in Pennsylvania. See 30 U.S.C. § 932(a)

(incorporating by reference the place-of-injury rule from 33 U.S.C. § 921(c)).

      We “must decide whether the ALJ or the Benefits Review Board committed an

error of law.” Lango v. Dir., OWCP, 104 F.3d 573, 576 (3d Cir. 1997). We also must

review the Board’s decision to determine whether the Board adhered to its scope of

review. Mancia v. Dir., OWCP, 130 F.3d 579, 584 (3d Cir. 1997). Therefore, we “must

examine the entire record and determine if the ALJ’s decision is supported by substantial


  1
   The ALJ at least once incorrectly stated the date of his death as March 9. ALJ’s
Decision at 2.

                                             3
evidence.” Id.

                                        III. Discussion

         Because the claimant filed for survivor’s benefits, she is only entitled to benefits if

she can prove, by a preponderance of the evidence, that Miller’s death was due to

pneumoconiosis. 20 C.F.R. § 718.1(a); cf. Dir., OWCP v. Greenwich Collieries, 512 U.S.

267, 277–78 (1994). This occurs if the disease caused or hastened—even briefly—his

death. Id. § 718.205(c); Lukosevicz v. Dir., OWCP, 888 F.2d 1001, 1004–06 (3d Cir.

1989).

         The ALJ determined that Miller’s death was not due to pneumoconiosis. In

making this determination, the ALJ evaluated Miller’s death certificate, his medical

treatment records, and medical opinions from three doctors. It is the ALJ’s evaluation of

the doctors’ medical opinions that cause us to remand this case.

         The three doctors who submitted medical opinions to the ALJ were Dr. Michael

Sherman, Dr. Todd Banning,2 and Dr. Dilliswar Sahoo. The ALJ did not commit an error

of law by according little weight to Dr. Sahoo’s opinion that Miller’s pneumoconiosis

significantly contributed to his death. Dr. Sahoo was treating Miller at the time of his

death, but the doctor’s opinion was conclusory and contained no medical evidence for

support. An ALJ may reject a medical opinion “that does not adequately explain the basis

for its conclusion.” Mancia, 130 F.3d at 588 (internal quotation marks omitted).


  2
    As discussed below, the ALJ incorrectly attributed Dr. Todd Banning’s medical
opinion to Dr. Richard Banning, his father. ALJ’s Decision at 5.

                                                4
       The ALJ gave great weight to Dr. Sherman’s report. Dr. Sherman never treated

Miller but reviewed his death certificate and medical records. Dr. Sherman opined that

pneumoconiosis was not a substantially contributing cause or factor in Miller’s death and

that pneumoconiosis did not hasten his death. Again, we see no error of law per se in

giving weight to Dr. Sherman’s opinion, as it was supported by medical evidence,

although the fact that his opinion conflicts with that of Miller’s treating physician makes

it more difficult to say that his opinion should be controlling. See Mancia, 130 F.3d at

591 (noting hesitantly that “there may be situations where the nature of a non-treating

physician’s report is sufficient, in context with all the other evidence in the case, to

support a conclusion that is contrary to the opinion of a treating physician”).

       Although the opinion of a miner’s treating physician is entitled to special

consideration, it does not automatically merit controlling weight. See 20 C.F.R.

§ 718.104(d); Lango, 104 F.3d at 577. The ALJ declined to grant the opinion of Dr.

Banning, Miller’s treating physician, controlling weight for several reasons. Based on

our independent review of the record, we conclude that these reasons were flawed and not

supported by substantial evidence.3 Accordingly, we remand this case for further review.

       The ALJ was either incorrect or mistaken on several aspects of Dr. Banning’s

medical opinion. First, the opinion was written by Dr. Todd Banning, not Dr. Richard


  3
    Here we note that the Government in its brief called our attention to the flaws in the
ALJ’s opinion. While we wish that such errors had been caught before the case had
stretched on so long, we applaud the Government’s honesty and diligence in uncovering
and disclosing them.

                                               5
Banning. Dr. Richard Banning (Todd Banning’s father) had treated Miller for some time

during the 1970s. Then, in the last five years of Miller’s life, Dr. Todd Banning became

his treating physician, seeing him at least once a month.

       Second, the ALJ stated that Dr. Banning was not Miller’s treating physician at the

time of Miller’s death. Although Dr. Sahoo apparently cared for Miller on October 7 and

8, because Dr. Banning was away, the October 8 hospital discharge summary lists Dr.

Banning as Miller’s attending physician.

       Third, the ALJ asserted that Dr. Banning’s treatment records were not in evidence.

But even the Director concedes that at least some of Dr. Banning’s treatment records

were in evidence (in Director’s Exhibits 5 and 6).

       Fourth, the ALJ found that Dr. Banning agreed with Dr. Sherman on Miller’s

primary and secondary causes of death. Dr. Banning listed Miller’s causes of death as (1)

acute non-transmural myocardial infarction, (2) acute on-chronic right heart failure

secondary to cor pulmonale, (3) pneumoconiosis, and (4) acute on-chronic renal failure.

Dr. Sherman’s opinion was that the two causes of Miller’s death were (1) myocardial

infarction and (2) underlying coronary artery disease. But cor pulmonale and coronary

artery disease are two different conditions. Compare The Merck Manual of Diagnosis

and Therapy 1702 (Mark H. Beers & Robert Berkow eds., 17th ed. 1999) (describing cor

pulmonale as a heart disease usually caused by lung disorders), with id. at 1658–59

(describing coronary artery disease as most often caused by plaque deposits in the

arteries). See generally Mancia, 130 F.3d at 585–86 (discussing the causes of cor

                                             6
pulmonale and its links with pneumoconiosis); id. at 591 (discussing physicians’

testimony that coronary artery disease is not related to pneumoconiosis).

       Claimant asks us to reverse the ALJ and the Benefits Review Board and to award

her benefits. Although we have before directed a benefits award when the result was

foreordained and when the record supported only one conclusion, Mancia, 130 F.3d at

593–94, we do not do so here. The ALJ’s consideration of Dr. Banning’s opinion was

flawed, but Dr. Sherman’s medical opinion is still contrary to Dr. Banning’s. The ALJ

will have to take into consideration the bases for each opinion and the proper weight to be

given the opinion of Dr. Banning as treating physician. These types of factual findings

and credibility determinations are for the ALJ to make, not our Court. We therefore grant

the petition for review, vacate the decision of the Benefits Review Board, and remand the

case with the instruction that the Board remand the case to the ALJ for a reexamination of

the evidence.

                                    IV. Conclusion

       Because the ALJ incorrectly evaluated a medical opinion from a miner’s treating

physician, we grant the petition for review of the Benefits Review Board’s decision,

vacate the Board’s decision, and remand the case with instructions to remand to the ALJ.




                                             7
