                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2002

Estate Ann Krofcheck v. Director OWCP
Precedential or Non-Precedential:

Docket 1-2602




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                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                            No. 01-2602


                      ESTATE OF ANN KROFCHECK
                     (Widow of PAUL KROFCHECK),


Petitioner

                                  v.

      DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
               UNITED STATES DEPARTMENT OF LABOR


                On Petition for Review of an Order
                    of the Benefits Review Board
                 United States Department of Labor
                        No. BRB-00-0701 BLA


             Submitted Under Third Circuit LAR 34.1(a)
                          February 5, 2002

             Before: SLOVITER, and AMBRO, Circuit Judges
                       POLLAK*, District Judge

                   (Opinion filed March 12, 2002)



                              OPINION


     *Honorable Louis H. Pollak, United States District Judge for the
Eastern District
of Pennsylvania, sitting by designation.
AMBRO, Circuit Judge

     The estate of a deceased miner's widow appeals the Department of
Labor Benefits
Review Board's affirmance of the denial of miner's and survivor's benefits
under the
Black Lung Benefits Act, 30 U.S.C.   901 et seq. We affirm.
                               I.
     Paul Krofcheck (the "miner") worked in underground mines for fifteen
and one-
half years. A blood gas study performed in 1973 yielded values too high
to qualify him
for a statutory presumption of pneumoconiosis, or "black lung" disease.
He filed a claim
for miner's benefits on May 22, 1978. On August 23, 1978, he was admitted
to the
hospital with partial paralysis of his right side. Three days later he
suffered congestive
heart failure. A pulmonary function test administered on September 11,
1978, found
results that qualified him for a statutory presumption of pneumoconiosis.
At the time of
this test the examining doctor concluded that he suffered from "moderately
severe
obstructive ventilatory pattern, with excellent response to
bronchodilators. Compatible
with reversible bronchospasm." He was released and readmitted several
times during the
next months, each time with diagnoses of congestive heart failure. He
died on February
24, 1979, with the cause of death listed as "cardiac arrest due to
coronary occlusion with
myocardial infarction due to arteriosclerotic heart disease."
     The procedural history of this action spans twenty-three years, and
is well known
to the parties. We will summarize it briefly. Ann Krofcheck, the miner's
widow, filed a
claim for survivor's benefits on March 11, 1979. The Department of Labor
denied both
survivor's benefits and miner's benefits after determining that the
evidence did not show
that the miner suffered from pneumoconiosis at the time of his death.
After a series of
hearings, remands, and requests for reconsideration, the Administrative
Law Judge
("ALJ") denied benefits once again on March 17, 2000, and the Board
affirmed on May
22, 2001. Claimant appealed.
                              II.
     We review the Board's decision for errors of law and to determine if
it adhered to
its statutory scope of review. Kertesz v. Crescent Hills Coal Co., 788
F.2d 158, 162 (3d
Cir. 1986). The ALJ's findings of fact are conclusive if supported by
"substantial
evidence in the record considered as a whole." 33 U.S.C.    921(b)(3)
(2001), 30 U.S.C.
932(a) (2001). We must independently review the record to determine if
substantial
evidence exists to support the ALJ's findings. Lango v. Dir., Office of
Workers' Comp.
Programs, 104 F.3d 573, 576 (3d Cir. 1997). Substantial evidence is "more
than a mere
scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation
omitted). It is not "a
large or significant amount of evidence, but rather 'such relevant
evidence as a reasonable
mind might accept as adequate to support a conclusion.'" Pierce v.
Underwood, 487 U.S.
552, 565 (1988) (citation omitted).
                               III.
     On March 2, 2001, the Board requested that the parties brief the
question of
whether 20 C.F.R.    718.104(d) (2002) applies to the claim at issue.
Revisions to this
regulation require the adjudicator of a claim to "give consideration to
the relationship
between the miner and any treating physician whose report is admitted into
the record."
Id. The adjudicator may give controlling weight to the treating
physician's opinion
"provided that [the weight assigned] shall also be based on the
credibility of the
physician's opinion in light of its reasoning and documentation, other
relevant evidence
and the record as a whole." Id. The Board held that "[t]he revisions to
the regulation at
20 C.F.R. 718.104(d) apply to claims filed after January 19, 2001.
Consequently, the
provision requiring that special consideration be accorded to the report
of a treating
physician does not apply to the instant claim."
     The Board did not err in its conclusion that the "treating physician
rule" of 20
C.F.R.   718.104(d) does not apply here. 20 C.F.R.     718.101(b) reads:
           The standards for the administration of clinical tests and
examinations
     contained in this subpart shall apply to all evidence developed by
any party
     after January 19, 2001 in connection with a claim governed by this
part . . .
     These standards shall also apply to claims governed by part 727
[Review of
     Pending and Denied Claims under the Black Lung Benefits Reform Act of
     1977] . . . but only for clinical tests or examinations conducted
after
     January 19, 2001.

(emphasis added). Because     718.101 applies the new standards its subpart
sets out only
to examinations conducted after January 19, 2001,    718.104's treating
physician rule
does not apply to this case.
     Claimant attempts to use     725.2(b) and (c) to justify applying the
rule
retroactively to her case. As she points out, these sections provide that
"this part" applies
to claims pending on August 18, 1978 and to claims pending on January 19,
2001.
However, it is clear from the context that the words "this part" refer to
the provisions of
725, not to those of    718. Claimant cannot use    725's language to
justify applying the
treating physician rule of    718.104.
     Claimant next argues that the ALJ and Board erred in not invoking the
interim
presumption in 20 C.F.R.    727.203 (1999) of death due to pneumoconiosis,
established if
one of four conditions is met and the miner has worked in a mine for ten
years. These
conditions are:
           (1) A chest roentgenogram (X-ray), biopsy, or autopsy
establishes the
     existence of pneumoconiosis . . .; (2) Ventilatory studies establish
the
     presence of a chronic respiratory or pulmonary disease . . . as
demonstrated
     by values which are equal to or less than the values specified in the
     following table; (3) Blood gas studies which demonstrate the presence
of an
     impairment in the transfer of oxygen from the lung alveoli to the
blood as
     indicated by values which are equal to or less than the values
specified in
     the following table; (4) Other medical evidence, including the
documented
     opinion of a physician exercising reasoned medical judgment,
establishes
     the presence of a totally disabling respiratory or pulmonary
impairment.

20 C.F.R.   727.203 (1999). Claimant argues that    727.203(2)'s
presumption is invoked
because ventilatory studies establish that the miner had qualifying forced
expiratory
volume (FEV) values. Claimant also argues that pneumoconiosis is
established under
727.203(4), which invokes the presumption if "[o]ther medical evidence,
including the
documented opinion of a physician exercising reasoned medical judgment,
establishes the
presence of a totally disabling respiratory or pulmonary impairment."
     The ALJ determined that the studies claimant relies upon were not
valid and
credible, and therefore did not invoke   203(a)(2)'s interim presumption.
Specifically, he
pointed to the lack of spirometric tracings and to the absence of a
statement of the miner's
understanding and cooperation that 20 C.F.R.   410 requires. Id.
Claimant argues that
the tracings were destroyed in accordance with regular hospital procedure,
and that Dr.
C. Vaughn Strimlan's assurances that the miner's effort and cooperation
were good
should cure any deficiencies. She argues that the ALJ erred in holding
that these tracings
were mandatory. In fact the ALJ did not so hold, but rather evaluated Dr.
Strimlan's
assurances that the test results were valid and discounted them.
     There was substantial evidence for the ALJ's conclusion. The ALJ
faulted Dr.
Strimlan for failing to consider the effect of the miner's stroke. He
concluded that Dr.
Strimlan's statement at the time of the test (that the miner suffered from
"moderately
severe obstructive ventilatory pattern, with excellent response to
bronchodilators.
Compatible with reversible bronchospasms"), which is inconsistent with
"the progressive
and irreversible nature of pneumoconiosis," was more credible than the
statements he
made years later. The ALJ gave greater weight to the opinion of Dr. Leon
Cander, who
concluded that heart failure caused the pulmonary test results, citing the
normal results
obtained prior to the miner's heart failure.
     The record also provides substantial evidence to support the ALJ's
decision not to
invoke   203(a)(4)'s interim presumption, thereby rejecting the opinions
of Drs. Strimlan
and Allan Freedman, who believed that the miner was disabled by
pneumoconiosis, and
that it in part caused his death. The ALJ cited the negative X-ray
evidence and the fact
that the pulmonary function test the doctors relied upon revealed results
inconsistent with
pneumoconiosis ("excellent response to bronchodilator"). He noted that
the miner's
arterial blood gas results were normal thirty years after he left the
mine, and only became
abnormal following his stroke. Coupled with Dr. Cander's analysis, this
was substantial
evidence for not invoking the interim presumption under   727.203(a)(4).
     Claimant argues that the ALJ erred in holding that even if an interim
presumption
under   727.203(a) were invoked, it was rebutted. Appellant's Br. at 20-
21. We need not
reach this issue because the ALJ relied upon substantial evidence to
determine that no
such presumption was invoked.
     Finally, claimant contends that the ALJ erred in not performing a de
novo review
of the lay evidence under   727.203(a)(5) and that the Board erred in
holding this to be
harmless error. Section 727.203(a)(5) provides that "[i]n the case of a
deceased miner
where no medical evidence is available, the affidavit of the survivor of
such miner or
other persons with knowledge of the miner's physical condition,
demonstrates the
presence of a totally disabling respiratory or pulmonary impairment." The
ALJ stated
that "this decision is based upon a complete and thorough de novo review
of all of the lay
and medical evidence." He "carefully reviewed and weighed the testimony
of the miner's
widow . . . and [her] lengthy handwritten letter dated October 26, 1982."
He concluded
"although the lay evidence (as well as the medical evidence) indicates
that the miner was
disabled by health problems (e.g., heart disease, stroke), it fails to
establish total disability
due to a respiratory or pulmonary condition." These statements indicate
that the ALJ did
perform a de novo review of the lay evidence; hence we need not decide
whether his
failure to do so constituted harmless error.

                             IV.

     For the foregoing reasons, the Board's decision is affirmed.



TO THE CLERK:

     Please file the foregoing Opinion.



                             By the Court,



                               /s/ Thomas L. Ambro
                                    Circuit Judge
