                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-2-1997

Mancia v. Director OWCP
Precedential or Non-Precedential:

Docket
97-3091




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Filed December 2, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-3091

JOSEPHINE MANCIA Widow of
ANGELO MANCIA,

       Petitioner

v.

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

       Respondent

Petition for Review of an Order of the
Benefits Review Board, United States
Department of Labor

Argued: September 23, 1997

Before: BECKER, SCIRICA and McKEE,
Circuit Judges

(Filed: December 2, 1997)

       TIMOTHY G. LENAHAN, ESQ.
       LISA G. WILSON, ESQ. (Argued)
        Lenahan & Dempsey, P.C.
       Suite 400 Kane Building
       116 North Washington Avenue
       Scranton, PA 18503
       Attorneys for Petitioner




       J. DAVITT McATEER, ESQ.
       Acting Solicitor of Labor
       DONALD S. SHIRE, ESQ.
       Associate Solicitor for Black
       Lung Benefits
       CHRISTIAN P. BARBER, ESQ.
       Counsel for Appellate
       Litigation
       JILL M. OTTE, ESQ. (Argued)
       U.S. Department of Labor
       Office of the Solicitor
       Suite N-2605
       Frances Perkins Building
       200 Constitution Ave. N.W.
       Washington, D.C. 20210
       Attorneys for Respondent

OPINION OF THE COURT

McKEE, Circuit Judge.

The widow of a deceased coal miner filed this petition for
review of a decision of the Benefits Review Board in which
the Board affirmed an Administrative Law Judge's denial of
her claim for survivors' benefits under the Black Lung
Benefits Act, 30 U.S.C. SS 901-945. For the reasons that
follow, we will reverse the Board's affirmance of the
Administrative Law Judge's decision and direct that
benefits be awarded.

I. BACKGROUND

Angelo Mancia filed two applications for Black Lung
benefits during his lifetime. The Department of Labor
denied the first one on September 3, 1980. Subsequently,
Mancia filed a second application, and on April 3, 1984,
Administrative Law Judge ("ALJ") Dunau issued a Decision
and Order awarding Mancia the requested benefits. The
ALJ found that Mancia proved he had pneumoconiosis,1 a
_________________________________________________________________

1. Pneumoconiosis is defined as:

                                2



causal relationship between that affliction and his eight
years of coal mine employment, and total disability due to
pneumoconiosis.

On August 5, 1990, Angelo's wife, Josephine, discovered
Angelo dead behind the wheel of the parked family car. Dr.
Charles Manganiello, Angelo Mancia's family physician,
signed the death certificate that stated that the immediate
cause of death was cardiopulmonary arrest with underlying
causes of anthracosilicosis with emphysema.

Later that same month, Josephine Mancia filed a claim
for survivor's benefits with the Department of Labor. The
Secretary administratively denied that claim on February
12, 1991. After the Secretary denied the claim a second
time, Josephine requested that the matter be referred to an
Administrative Law Judge for a hearing, and the claim was
referred to ALJ Ainsworth Brown. Since Mancia had been
receiving black lung benefits at the time of his death, a
stipulation was entered into that the only issue to be
decided by the ALJ was whether Mancia's death had been
caused by pneumoconiosis as required for survivor's
benefits under 20 C.F.R. S 718.250(c).

The ALJ denied the claim, and Josephine Mancia
appealed to the Benefits Review Board. The Board affirmed
the ALJ's decision. It concluded that the ALJ, "within a
proper exercise of his discretion as a fact finder, . . .
discredited the only medical opinion that could support
claimant's burden," and, therefore, the widow "failed to
establish that pneumoconiosis played any part in the
miner's death. . . ." BRB Decision at 4.

This petition for review followed.
_________________________________________________________________

       a chronic dust disease of the lung and its sequelae, including
       respiratory and pulmonary impairments, arising out of coal
       mine employment. This definition includes, but is not limited to,
       coal workers' pneumoconiosis, anthracosilicosis, anthracosis,
       anthrosilicosis, massive pulmonary fibrosis, progressive massive
       fibrosis, silicosis or silicotuberculosis, arising out of coal mine
       employment.

20 C.F.R. S 718.201.

                                3



II. THE PROCEEDINGS BEFORE THE ALJ

Josephine Mancia, and Armand Mancia (the miner's first
cousin), testified before the ALJ. Josephine also offered the
deposition testimony of Dr. Charles M. Manganiello, and a
letter from Dr. Manganiello, dated August 26, 1991, in
support of her claims. The Director's evidence consisted
primarily of a report of Dr. Leon Candor whom the Director
had retained to render an opinion as to the cause of
Mancia's death. The Director also offered two documents
that had been written by Dr. Manganiello in an attempt to
support Dr. Candor's conclusion, and impeach the contrary
conclusion of Dr. Manganiello.

A. LAY TESTIMONY

Josephine Mancia testified that her husband had been
awarded black lung benefits in 1984 and that his health
seemed to worsen on a daily basis prior to his death. He
could not breathe well and required assistance doing things
around the house. She also testified that he was so short
of breath that his bed was moved to the first floor as he
could not climb stairs, and he was unable to walk very far
before complaining of shortness of breath. Hearing
Transcript, at 8-9. Mancia saw Dr. Manganiello for his
breathing problems, and was also under the treatment of
another physician for an unrelated skin condition. Id. at 10.2
Josephine testified that her husband never complained of
any chest or heart pain and he was never treated for a
heart condition. Id.

Josephine further testified that Angelo complained that
he could not breathe well about one week before he died.
Id. at 11. She returned home from a bus trip to Atlantic
City, and found him dead in their car. The motor was not
running. Id. at 12.

Armand Mancia, testified that he and Angelo were very
close and that they spent a lot of time fishing at a lake in
the summertime. Id. at 14. The cottage where they stayed
was about 200 to 250 feet from a lake. In the year before
_________________________________________________________________

2. That condition was cancer, and all the parties and witnesses agree
that that condition is not implicated in Angelo's death.

                                 4



he died, Angelo had to stop about half-way to the lake to
catch his breath. Angelo was able to fish only because the
boat was powered by a motor, and Armand did all of the
casting. According to Armand, Angelo never complained
about chest pain or heart problems, nor did he ever tell
Armand he was taking any medication for any heart
condition. Armand testified that during the last years of
Angelo's life he (Angelo) kept "slowing up," that breathing
was a major problem, and that Angelo could not tolerate
any physical exertion of any kind because of his problem
breathing. Id. at 17.

B. DR. MANGANIELLO'S TESTIMONY

Dr. Manganiello's deposition testimony established that
he had been a licensed physician for 15 years, practicing
general medicine in a region where coal mining was once
the prevalent industry. Approximately 10% of his patients
are former coal miners, and he sees those patients
primarily for anthracosilicosis and anthracosilicosis-related
problems. He is, however, neither board-certified nor board-
eligible in cardiology, occupational medicine, pulmonary
medicine nor internal medicine. Deposition Transcript, at 7-
9.

Dr. Manganiello first began treating Angelo Mancia in
1978, primarily for his underlying pneumoconiosis. He saw
him at least three times a year thereafter. Mancia's
medications consisted of bronchodilator therapy and
respiratory treatments, as well as oxygen therapy as
needed. Id. at 13. Dr. Manganiello testified he agreed to
sign Mancia's death certificate at the coroner's request. Id.
at 14. That death certificate states that the immediate
cause of death was cardiopulmonary arrest with underlying
causes of anthracosilicosis3 with emphysema.
_________________________________________________________________

3. The statutory definition of pneumoconiosis includes anthracosilicosis.
20 C.F.R. SS 718.201 & 727.202. The statutory definition of
pneumoconiosis (i.e. any lung disease that is significantly related to, or
substantially aggravated by, dust exposure in coal mine employment) is
much broader than the medical definition, which only encompasses lung
diseases caused by fibrotic reaction of lung tissue to inhaled dust.
Labelle Processing Co. v. Swarrow, 72 F.3d 308, 312 (3d Cir. 1996).

                                5



Dr. Manganiello was confronted with Dr. Candor's
conclusion that Mancia died of a heart attack. Candor
based that conclusion partly upon Dr. Manganiello's entry
on the death certificate. Manganiello answered as follows:

       No where (sic) in my death certificate or in my opinions
       do I feel that I have ever expressed a myocardial
       infarction as his cause of death. I'm not sure where
       [Candor] extrapolated that type of information. And I'm
       not sure from where he draws his conclusion. Mr.
       Mancia never had any symptoms related to his heart.
       And again, the reason for me stating that Mr. Mancia
       died of a cardiopulmonary arrest is because his heart
       stopped. Why his heart stopped, in my opinion, was
       because of his underlying lung condition. The patient
       had difficulty breathing. He had difficulty oxygenating
       his heart on the basis of his breathing; and his heart
       stopped; not because his heart developed a clot, or he
       damaged his heart. He had no symptoms referable to
       that. And nowhere could I state that he died of a
       myocardial infarction.4 And I don't believe that anyone
       could make that statement. So I am not sure where he
       extrapolated that information.

Id. at 20-21. Dr. Manganiello was also asked about Dr.
Candor's reliance on an April 11, 1991 note written by Dr.
Manganiello. As we discuss below, that note is at the heart
of the ALJ's rejection of Dr. Manganiello's medical opinion
as to the cause of Mancia's death. In that note, Dr.
Manganiello wrote that Mancia had suffered a "heart
attack" which was a "direct result of his severe
anthracosilicosis with emphysema." When asked about that
note, Manganiello stated

       I believe there was one report that I had made, trying
       to embellish or trying to explain a cardiopulmonary
       arrest. And I do believe that that report has been
       mistaken and misunderstood. I totally negate that
_________________________________________________________________

4. Dr. Manganiello explained that a cardiopulmonary arrest is "absolutely
not" the same as a myocardial infarction. The latter is a heart attack,
but the heart does not necessarily stop, and unlike a pulmonary arrest
where the heart stops, many patients survive a myocardial infarction.
Deposition Testimony, at 26-7.

                                6



       report. I do not refer to that in any of my thoughts or
       any of my opinions in terms of his cardiopulmonary
       arrest. And again, I believe his heart stopped on the
       basis of his underlying lung deterioration, and
       problems relating to his underlying anthracosilicosis.

Id. at 21.

On cross-examination, the following exchange occurred
in response to a question about Manganiello's treatment of
diseases related to pneumoconiosis:

       Q: Dr., in your testimony this morning, you have
       talked about treating Mr. Mancia for his
       pneumoconiosis and related diseases. What are those
       related diseases?

       A: The pneumoconiosis basically; the underlying
       infections and problems that he would incur as a
       result of his severe lung disease. Recurrent episodes of
       bronchitis. Problems such as cor pulmonale, or build-
       up of some right-sided heart failure, on the basis of
       severe underlying lung disease; and problems of that
       nature. But all related to his lung disease.

Id. at 22.

Manganiello admitted that his reports did not mention
the presence of cor pulmonale and explained that it was not
mentioned because it was "basically [an] office concern[ ],"
which was not necessary to note in a report. Id. at 22-23.

       You could see that the man had some edema of his
       legs; some swelling in his abdomen from time to time.
       He required some diuretic therapy from time to time for
       the treatment of that problem.
Id. at 23. Dr. Manganiello further explained that he didn't
think it was necessary to order objective tests to confirm
the presence of cor pulmonale because it can be diagnosed
clinically, and because there is really no treatment for the
condition once it is diagnosed. Id. "I really don't feel that it
was necessary to do that. I believe that a clinical diagnosis
can be just as well treated in the office, without any of
those studies." Id. at 23.

                                7



C. DR. MANCIA'S AUGUST 26, 1991 LETTER

Josephine Mancia also introduced a letter from Dr.
Manganiello, dated August 26, 1991, and addressed "TO
WHOM IT MAY CONCERN." It reads:

        Mr. Angelo Mancia was under my care for
       anthracosilicosis. I never treated Mr. Mancia for heart
       disease or coronary artery disease for that matter.

        The death certificate states cardiopulmonary arrest
       secondary to anthracosilicosis and there has never
       been a statement that his death was related to a
       myocardial infarction.

        It is therefore my opinion that Mr. Mancia's untimely
       death was a direct result of his anthracosilicosis.

D. THE DIRECTOR'S EVIDENCE BEFORE THE ALJ

The Director's evidence in opposition to the widow's claim
consisted of a two-page report of Dr. Leon Candor,5 and the
aforementioned April 11, 1991 note from Dr. Manganiello.
Dr. Candor never examined the miner. His report was
based entirely upon his examination of certain medical
records and the results of tests that Dr. Manganiello and
other physicians had performed over the years. The
Director also introduced the death certificate into evidence.
Dr. Manganiello's April 11, 1991 note is addressed "TO
WHOM IT MAY CONCERN." The entirety of that note is as
follows:

        In my opinion Mr. Angelo Mancia (sic) heart attack
       was a direct result of his severe anthracosilicosis with
       emphysema which hastened or progressed his
       underlying coronary artery disease.

Dr. Candor's report details the various medical records
he reviewed. They include x-rays and the results of tests
that had been performed on Mancia during his lifetime.
Based upon his review of those records, Dr. Candor
concluded:
_________________________________________________________________

5. The Director's Brief states that Dr. Candor is a Board-certified
internist. Director's Br. at 5. However, the ALJ's Decision recites that
Dr.
Candor is Board-eligible in pulmonary medicine. ALJ's Decision at 3.

                                8



       1. As noted in Dr. Manganiello's letter of 4/11/91, the
       immediate cause of Mr. Mancia's death on 8/5/90 was
       an acute myocardial infarction with resultant
       cardiopulmonary arrest. The myocardial infarction
       (heart attack) was caused by underlying coronary
       artery disease.

       2. The patient's coronary artery disease with resultant
       myocardial infarction were casually unrelated to
       pneumoconiosis.

       3. Despite Dr. Manganiello's statement in his letter of
       4/11/91, I know of no scientific evidence which
       indicates that anthracosilicosis or emphysema hasten
       the progress of coronary artery disease.

       4. The normal arterial oxygen tension at rest and
       during exercise makes it most unlikely that the
       patient's chronic lung disease had any effect upon
       cardiac rhythm and function.

       5. The available information provides no evidence that
       Mr. Mancia's chronic lung disease was a substantially
       contributing cause to his death caused by acute
       myocardial infarction or hastened his death.

E. THE ALJ'S DECISION

The ALJ focused on two aspects of Manganiello's
testimony and letters in denying the widow's claim. The ALJ
was clearly troubled by Manganiello's assertion that Mancia
suffered from cor pulmonale. The ALJ noted that
Manganiello's letters did not mention cor pulmonale but
that Manganiello did, nevertheless, testify at his deposition
that the miner suffered from cor pulmonale. ALJ's Decision
at 3. The ALJ rejected Dr. Manganiello's explanation of the
apparent contradiction. The ALJ concluded that
Manganiello simply assumed that black lung disease played
a part in the miner's death, and found that Manganiello's
opinion was not well-reasoned, not supported by objective
means and not based on competent medical evidence. The
ALJ concluded that Dr. Manganiello "responded
disingenuously that the condition `. . . basically were office
concerns; not . . . things that I felt needed justification in

                                9



these types of letters.' . . He stated that he did not believe
that objective testing was necessary." ALJ's Decision at 3.

The ALJ was also troubled by Manganiello's April 11,
1991 note and the doctor's repudiation of it. The ALJ was
not convinced by Dr. Manganiello's explanation that he
"over embellished [him]self a bit" in the note. Deposition
Transcript, at 28. The ALJ wrote:

       Thus, after writing a note containing a premise Dr.
       Manganiello pulls the rug out by withdrawing the
       premise of a heart attack. By withdrawing the letter of
       April 11, 1991 the doctor inferentially, at least,
       concedes being less than candid.

ALJ's Decision, at 3.

The ALJ relied upon Dr. Candor's conclusion that Mancia
died of a myocardial infarction unrelated to his chronic
lung disease, and he (the ALJ) concluded that Manganiello's
testimony to the contrary was merely an assumption that
the miner's lung disease played a role in his death.

       When one views Dr. Manganiello's "rationale" as
       expressed at his deposition it amounted to nothing
       more that the doctor assumed that the progressive
       subjective breathing symptoms were attributable to
       Black Lung, and that, therefore, when the miner was
       found dead that Black Lung must have contributed to
       his death. . . . The most reasonable observation to
       make is that Dr. Manganiello merely assumed that
       Black Lung played a part in death. His opinion is not
       well-reasoned or supported by an objective means and
       is not found to be based on "competent medical
       evidence" 20 C.F.R. 718.205(c)(1)(2).

Id. Thus, the ALJ ruled that there is "no credible basis to
conclude that coal worker's pneumoconiosis played any
part" in the miner's death. Id. at 4.

The Director now argues that the ALJ weighed
Manganiello's opinion that pneumoconiosis played a part in
the miner's death and Candor's opinion to the contrary and
simply made a credibility determination that we ought not
overturn.
                                10



The Board affirmed the ALJ's decision ruling that the ALJ
properly exercised his discretion as a fact-finder and
"discredited the only medical opinion that could support
claimant's burden." BRB's Decision at 4.

III. SCOPE OF REVIEW

We must examine the entire record and determine if the
ALJ's decision is supported by substantial evidence.

       The Board is bound by the ALJ's findings of fact if they
       are supported by substantial evidence. Our review of
       the Board's decision is limited to a determination of
       whether an error of law has been committed and
       whether the Board has adhered to its scope of review.
       In doing so, we must independently review the record
       and decide whether the ALJ's findings are supported
       by substantial evidence. Substantial evidence has been
       defined as more than a mere scintilla. It means such
       relevant evidence as a reasonable mind might accept as
       adequate to support a conclusion.

Kowalchick v. Director, OWCP, 893 F.2d 615, 619 (3d Cir.
1990) (citations and internal quotations omitted).

IV. DISCUSSION

Josephine Mancia's claim for survivor's benefits was filed
in August of 1990.6 Thus, it was adjudicated under the
regulations found at 20 C.F.R. S 718.2.7 Under 20 C.F.R.
S 718.205(a), benefits are provided to "eligible survivors of a
miner whose death was due to pneumoconiosis." The
_________________________________________________________________

6. January 1, 1982, was the effective date of amendments to the Black
Lung Benefits Act. Had Josephine been awarded benefits prior to the
effective date of the amendments, she would have been entitled to
derivative benefits based upon the benefits that had been awarded to
Angelo during his lifetime. However, after the amendments became
effective, a miner's survivor had to prove that the miner's death was
caused by pneumoconiosis. Accordingly, Josephine must establish the
cause of Angelo's death without relying upon his eligibility for benefits
during his lifetime. See Pothering v. Parkson Coal Co., 861 F.2d 1321 (3d
Cir. 1988) for a general discussion of the 1981 amendments.

7. 20 C.F.R. Part 718 governs all claims filed after April 1, 1980.

                                11
applicable regulations further provide that a miner's death
will be "considered to be due to pneumoconiosis" if any of
the following criteria are met:

       (1) Where competent medical evidence established
       that the miner's death was due to pneumoconiosis, or

       (2) Where pneumoconiosis was a substantially
       contributing cause or factor leading to the miner's
       death or where the death was caused by complications
       or pneumoconiosis, or

       (3) Where the presumption set forth at S 718.304 is
       applicable.

20 C.F.R. S 718.205(c); Director, OWCP v. Siwiec, 894 F.2d
635, 638 (3d Cir. 1990).

Josephine Mancia conceded that the S 718.304 8
presumption does not apply to her claim. The Director
conceded that, during his lifetime, the miner suffered from
pneumoconiosis arising out of his coal mine employment.
Consequently, the ALJ only had to decide "whether the
miner's death was caused by pneumoconiosis as required
by 20 C.F.R. S 718.205(c)." Director's Br. at 3. Thus,
Josephine Mancia had to demonstrate by a preponderance
of the evidence that her husband's death was hastened by
pneumoconiosis. Director, OWCP v. Greenwich Collieries,
512 U.S. 267 (1994). "[A]ny condition that actually hastens
death is a substantially contributing cause of death within
the meaning of [20 C.F.R. S 718.205(c)(2)]." Lukosevicz v.
Director, OWCP, 888 F.2d 1001, 1006 (3d Cir. 1989).

The ALJ discredited Manganiello's testimony because of
his "failure" to document cor pulmonale, his April 11, 1991
note, and his repudiation of it. However, based upon our
independent review of the entire record we conclude that
the ALJ's rejection of Dr. Manganiello's conclusion is not
supported by substantial evidence. Accordingly, we disagree
with the ALJ's rejection of Manganiello's conclusion that
Mancia's death was caused by Black Lung Disease.
_________________________________________________________________

8. 20 C.F.R. S 718.304 lists those circumstances which create an
irrebuttable presumption of total disability or death due to
pneumoconiosis.

                                12



A. COR PULMONALE
Cor pulmonale is a cardiovascular disease and is defined
as:

       Right ventricular (RV) enlargement secondary to
       malfunction of the lungs, producing pulmonary artery
       hypertension that may be due to intrinsic pulmonary
       disease, an abnormal chest bellows, or a depressed
       ventilatory drive. The term does not include RV
       enlargement secondary to left ventricular (LV) failure,
       congenital heart disease, or acquired valvular heart
       disease. CP is usually chronic but may be acute and
       reversible.

THE MERCK MANUAL, Cardiovascular Disorders, 16th ed.
(1992). The most common cause of cor pulmonale is
"chronic obstructive pulmonary disease (chronic bronchitis,
emphysema)." Id. Cor pulmonale has been associated with
pneumoconiosis as an end-stage complication. See , e.g.,
Kusiak, R., Liss, G. M. & Gailitis, M. M., Cor Pulmonale and
Pneumoconiosisconiotic Lung Disease: An Investigation Using
Hospital Discharge Data, 24(2) Am. J. Ind. Med. 161 (1993)
(This study found that cor pulmonale was diagnosed 17
times more frequently than expected among men diagnosed
with pneumoconiosis than among other men admitted to
the authors' hospital). Thus, given Mancia's undisputed
medical history of emphysema and pneumoconiosis, it
would not be unusual if he also suffered from cor
pulmonale. Part 718 of the applicable regulations
specifically refer to the relationship between
pneumoconiosis and cor pulmonale.

We have previously stated that

       "[t]he report of a physician about a miner's degree of
       disability. . . may have a great deal of significance even
       if a report lacks full documentation. The report does
       not necessarily indicate the information upon which
       the physician relied. It is often buttressed by deposition
       testimony. . . . For example, the Director informs us
       that an x-ray is not normally relevant to the degree of
       disability. If the physician's report fails to mention an
       x-ray, therefore, that failing should not normally affect

                                 13



       the credibility of the physician's finding of total
       disability.

Director, OWCP, v. Mangifest, 826 F.2d 1318, 1327 (3rd Cir.
1987).

Since cor pulmonale is so commonly associated with
pneumoconiosis, it is not illogical that a treating physician
did not document that condition in a miner suffering from
black lung disease. This is especially true since Manganiello
testified without contradiction that he couldn't treat that
condition. The ALJ made his credibility determination
based solely upon a reading of the transcript without the
advantages that would come from viewing a witness as he
or she testifies, and the Director offered no evidence to
rebut Manganiello's testimony that Mancia did suffer from
cor pulmonale.

Dr. Candor's report does not comment upon the presence
or absence of cor pulmonale. The ALJ's conclusion that
Manganiello's testimony regarding the presence of cor
pulmonale was "disingenuous" amounts to little more than
the ALJ substituting his own medical assessment for that
of the treating physician. This record does not support the
ALJ's jaundiced view of Manganiello's testimony regarding
Mancia's cor pulmonale. The ALJ placed too much reliance
upon the treating physician's failure to order diagnostic
tests absent some medical evidence that diagnostic tests for
cor pulmonale were necessary. The ALJ's analysis compels
a treating physician to order diagnostic tests which the
physician feels are not needed merely to provide "objective
tests" that will satisfy an ALJ at a possible subsequent
administrative hearing.

B. THE DEATH CERTIFICATE

During his deposition, Manganiello explained that he
enters cardiopulmonary arrest as the cause of death on
90% of his death certificates. He added:

       I'd probably put [cardiopulmonary arrest] on 100% of
       them, but I just sometimes run into the same problem
       . . . we're into right now. I'm just not sure what
       the big stigma is about cardiopulmonary arrest.

                                14



       Cardiopulmonary means that the heart has to stop, as
       far as my opinion goes. And maybe I'm just signing my
       death certificates inappropriately. But I just feel that
       your heart stops. And why does your heart stop? It
       stops because some condition causes it to stop. That's
       why I sign them that way. It's my usual customary
       practice.

Id. at 26. He remained emphatic on cross-examination, and
he steadfastly insisted that Mancia did not die because of
a heart attack.
In Smakula v. Weinberger, 572 F.2d 127 (3rd Cir. 1978)
we noted the common practice of completing death
certificates in this manner. There, a miner died suddenly,
and his widow applied for survivor's benefits alleging that
the miner's death had been caused by black lung disease.
The ALJ ruled that the widow had established causation,
but the Appeals Council, acting for the Secretary, reversed,
and the district court entered summary judgment for the
Secretary. On appeal, we remanded with directions to
award widow's black lung benefits as the reversal of the
ALJ's determinations had not been based upon substantial
evidence. The death certificate there stated that the miner
died from "coronary occlusion." That was the only cause of
death given on the death certificate. We noted, however,
that the entry on the certificate was "sparse and unverified
by clinical findings [and that] testimony at the hearing cast
grave doubt on [the certificate's] reliability." Id. at 131. The
mortician who arrived at the scene within 15 or 20 minutes
of the miner's collapse testified that he took a death
certificate to a local physician who "filled in`coronary
occlusion' as the cause of death, signed the certificate, and
handed it back to [the mortician]" Id. at 132. That doctor
had never examined the miner, and had no basis for
concluding that his cause of death was as stated on the
death certificate. In affirming the ALJ's determination that
the widow had established that the miner's death was
caused by black lung disease despite the contrary
statements on the death certificate we accepted the
mortician's explanation that, "in his experience,. . .
standard procedure by the coroner's office was not to
bother with examination of the bodies and perfunctorily
attribute cause of death to a heart attack." Id.

                                15



In Hillibush v. Benefits Review Board, 853 F.2d 197 (3rd
Cir. 1988), we stated

       We have previously determined that a death certificate
       listing "coronary occlusion" and neither listing any
       other contributing conditions, nor indicating that an
       autopsy or other physical examination had been made
       of the body, is inherently unreliable and does not
       constitute substantial evidence that the miner died of
       a coronary occlusion for purposes of determining a
       widow's entitlement to black lung benefits. In that case
       there was testimony that it is common practice, absent
       an autopsy, for coroners to enter coronary occlusion as
       the cause of death of miners.

853 F.2d at 204. We ruled "[w]e hold that in the absence of
an autopsy, a death certificate may not be used to preclude
invocation of a presumption of a totally disabling
respiratory or pulmonary impairment." Id.

Although this case is distinguishable, our holding in
Smakula and Hillibush is instructive in assessing the
probative value of Manganiello's statements on the death
certificate, and his credibility in explaining the entry. There,
as here, there was lay testimony about the deceased
miner's difficulty in breathing, and the degree to which that
difficulty appeared to compromise his health and limit his
daily routine. Similarly, there, as here, "no doctor had ever
attributed her husband's progressive respiratory difficulties
to a heart ailment." Smakula, 572 F.2d at 133. More
importantly, here, Dr. Manganiello related Mancia's stopped
heart to his pneumoconiosis on the death certificate. "[T]he
fact that the immediate cause of death was cardiac arrest
does not preclude the possibility that the miner had a
respiratory or pulmonary impairment; the two conditions
are not inconsistent with each other."9 Id.
_________________________________________________________________

9. Dr. Manganiello explained that coronary artery disease is not related
to pneumoconiosis and that pneumoconiosis does not cause coronary
artery disease, although it could be a risk factor for coronary artery
disease. Deposition at 29.

                                16



C. THE APRIL 11, 1991 NOTE

Mancia's cryptic note of April 11, 1991, is far more
troubling. Although the ALJ was not required to accept
Manganiello's explanation of the contents of that note, nor
his repudiation of it, the ALJ was not free to ignore the
totality of the "objective evidence" that he complained was
lacking, and the lay corroboration of that evidence, and give
inappropriate weight to that note. The objective tests that
were performed, the testimony of Mancia's treating
physician, and the uncontradicted testimony of Josephine
and Armand Mancia all clearly establish that Mancia never
complained of, and was never treated for, any heart
problem. Similarly, as is discussed more fully below, Dr.
Candor ignored Mancia's entire medical history in order to
focus upon the 27 word note written in unexplained
circumstances. Candor concluded that Mancia died of a
heart attack unrelated to his black lung disease even
though there is no evidence that any of the numerous
objective tests that were performed in the 12 years
preceding Mancia's death suggested a heart problem.

Josephine testified that a week before his death her
husband, "was telling [her] that he couldn't breathe and he
was to go to Manganiello. And when he couldn't breathe, he
used to get like white to his face". Hearing Transcript, at
11. There was no mention of chest pain. Similarly, as noted
above, Armand testified that "[h]is breathing was his major
problem; shortness of breath, really. He couldn't do any
physical exertion of any kind." Id. at 17. Again, there was
no suggestion of chest pain or related heart problems. The
ALJ simply ignored this testimony and relied completely
upon the non-treating physician's unsupported conclusion
that Mancia died of a heart attack.

In Hillibush, the ALJ ignored lay testimony describing the
problems the miner had breathing, and his difficulty with
exertion shortly before his death. We ruled that it was error
for the ALJ to conclude that the miner died of a heart
attack despite such lay testimony merely because of the
unsubstantiated entry to that effect on the death certificate.
We realize that the regulations in effect when we decided
Hillibush specifically provided that the finding of causation
in a survivor's claim should be made based upon a

                                17



consideration of "all relevant evidence." Id. at 202,10 while
the current regulation is more restrictive. See 20 C.F.R.
S 718.205(c). However, the change in the regulation does
not allow the ALJ to ignore uncontradicted relevant lay
testimony where it corroborates the medical testimony of a
treating physician and is consistent with the medical
records.

Indeed, the ALJ's only explanation of his rejection of Dr.
Manganiello's conclusion that Mancia died because of his
black lung disease is as follows:

       When one views Dr. Manganiello's "rationale" as
       expressed at his deposition it amounted to nothing
       more than the doctor assumed that the progressive
       subjective breathing symptoms were attributable to
       Black Lung, and that, therefore, when the miner was
       found dead that Black Lung must have contributed to
       his death. . . . The most reasonable observation to
       make is that Dr. Manganiello merely assumed that
       Black Lung played a part in death. His opinion is not
       well-reasoned or supported by any objective means and
       is not found to be based on "competent medical
       evidence." 20 C.F.R. S 718.205(c)(1)(2).

ALJ's Decision at 3.

However, Dr. Manganiello explained his "assumption" as
follows:
        I mean, the cause of death, as far as I am concerned,
        is the contributing factor that made his heart stop; and
        that is the antracosilicosis. Nowhere on that death
        certificate does it state anything more than that.

* * *

       The rational behind that was the fact that he had
_________________________________________________________________

10. We stated that "30 U.S.C. S 932(b) (1982) required that [i]n
determining the validity of claims under this part, all relevant evidence
shall be considered, including where relevant, medical tests such as
blood gas studies, . . . [and] evidence submitted by the claimant's
physician, or his wife's affidavits, and in the case of a deceased miner,
other appropriate affidavits of persons with knowledge of the miner's
physical condition, and other supportive materials." Id. at 202.

                                 18



        ongoing problems related to his lung disease. And he
        had ongoing symptoms revealing that he was
        deteriorating from his lung condition. And he had no
        other symptoms, and no other problems that would
        cause his untimely death. Therefore, my rationale is
        that it is his underlying lung disease that caused his
        death.

Deposition Transcript, at 19.

D. THE STANDARD FOR EVALUATING
       MEDICAL TESTIMONY

In Kertesz v. Director, OWCP, 788 F.2d 158 (3d Cir.
1986), we discussed the general principles by which an ALJ
must evaluate medical evidence. We wrote:

         In reaching a decision, an ALJ should set out and
        discuss the pertinent medical evidence presented. 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. Moreover, the ALJ should
        reject as insufficiently reasoned any medical opinion
        that reaches a conclusion contrary to objective clinical
        evidence without explanation.

         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. [A]n ALJ is
        not free to set his own expertise against that of a
       physician who presents competent evidence.

Id. at 163 (citations and internal quotations omitted).
Moreover, "[a] testifying physician need not express his
conclusions in terms of `reasonable degree of medical
certainty' to be credited by the ALJ; the ALJ must instead
accept a `documented opinion of a physician exercising
reasoned medical judgment' ". Tennessee Consolidated Coal
Co. v. Crisp, 866 F.2d 179, 185 (6th Cir. 1989).

Although an ALJ may properly reject a medical opinion
"that does not adequately explain the basis for its
conclusion," Risher v. OWCP, 940 F.2d 327, 331 (8th Cir.
1991); see also, Brazzalle v. Director, OWCP, 803 F.2d 934,

                                19



936 (8th Cir. 1986), the ALJ is not free to do so merely
because he or she interprets the medical opinion as an
assumption. The ALJ's rejection of Dr. Manganiello's
opinion as an "assumption" imposes a requirement akin to
a reasonable degree of medical certainty that is not required.11
In basing his opinion upon a single cryptic note and
ignoring the contrary medical evidence (corroborated by
uncontradicted lay testimony) that Mancia was not
suffering from heart problems at the time of his death, the
ALJ rejected a medical opinion that was consistent with,
and corroborated by, the results of Mancia's pulmonary
function exams, and his x-rays. Dr. Manganiello explained
the basis of his conclusion that Mancia did not die of a
heart attack. Based upon this record, the ALJ could not
simply reject that reasoned assessment of the cause of
Mancia's death by labeling it an "assumption."

The "assumption" which so concerned the ALJ was a
hypothesis based upon Mancia's medical history, and Dr.
Manganiello's treatment of Mancia during the 12 years
leading up to his death. There is nothing inconsistent
between such an "assumption", and reasoned medical
judgment.

       Reasoned medical judgment has been defined in
       personal injury cases as a hypothesis representing a
       physician's professional judgment as to the most likely
       one among the possible causes of the physical
       condition involved. This definition has been accepted in
       litigation under the Black Lung Benefits Act.

Brazzalle v. Director, OWCP, 803 F.2d 934, 936 (8th Cir.
1986) (internal quotation marks and citations omitted).
_________________________________________________________________
11. See Plesh v. Director, OWCP, 71 F.3d 103 (3rd Cir. 1995); Drummond
Coal Co. v. Freeman, 733 F.2d 1523, 1526 (8th Cir. 1984) (reasoned
medical judgment is all that is required, and opinions need not be
expressed in terms of reasonable degree of medical certainty); Peabody
Coal Co. v. Helms, 859 F.2d 486, 489 (7th Cir. 1988)(same). Although
these, and other cases cited therein, address the"reasoned medical
judgment" standard as it relates to the presumption that arises under 20
C.F.R. S 725.203(a)(4), we see no distinction between that standard and
the "reasoned medical judgment" necessary to establish entitlement to
survivor's benefits here.

                                20



Moreover, a physician's medical judgment, even if based
on instinct, "is nonetheless grounded in years of
experience" and has a "great deal of significance." Director,
OWCP v. Mangifest, 826 F.2d at 1327. In Mangifest we
stated

       [l]ike other judgments, a medical judgment is
       sometimes based upon instinct, the unarticulated and
       unarticulable opinion that is nonetheless grounded in
       years of experience. Apparently out of respect for this
       medical intuition, the regulations permit an ALJ tofind
       total disability on the basis of medical judgments even
       if the medical tests are inconclusive.

826 F.2d at 1327. In Mangifest, a miner seeking disability
benefits submitted several reports from various physicians
that did not meet the regulatory requirements for valid
medical tests. We held that "a medical judgment contained
in a noncomplying report may constitute substantial
evidence of disability if, . . . it is reasoned and based on
medically acceptable clinical and laboratory diagnostic
technique. . . . The ALJ must base this determination on all
the facts of the case." 826 F.2d at 1327. Here, although the
ALJ questioned Manganiello's credibility regarding his
explanation of the April 11 note, the ALJ did not doubt that
Manganiello believed that Mancia died of pneumoconiosis.
Rather, the ALJ rejected Manganiello's belief as a mere
"assumption." However, that "assumption" was a medical
opinion regarding his patient of 12 years, and is supported
by Mancia's pneumoconiosis, and the lay testimony.
Accordingly, it was not only unfair for the ALJ to disregard
the treating physician's medical opinion as merely an
"assumption," it was error to do so. Indeed, "assumptions"
based upon a patient's medical history, and confirmed
diagnosis can constitute the required "objective medical
means" that the ALJ mistakenly concluded was lacking in
this case. Moreover, the ALJ selectively labels Dr.
Manganiello's opinion an "assumption" but does not explain
why Dr. Candor's contrary opinion of the cause of Mancia's
death is not also an "assumption."

This case is unlike Lango v. Director, OWCP, 104 F.3d
573 (3d Cir. 1997), where the miner's treating physician
merely made conclusory statements as to the miner's cause

                                 21



of death. Here, Manganiello explained the basis for his
opinion. With the exception of the April 11, 1991 note,
Manganiello clearly, consistently and unwaveringly opined
that the miner's chronic lung disease led to his
deteriorating medical condition and, ultimately, to his
death.

Moreover, and most importantly, the issue here is
whether the pneumoconiosis that so gravely afflicted
Mancia "even briefly" hastened his death. Lukosevicz, 888
F.2d at 1004. Thus, even assuming that Mancia did suffer
a heart attack despite the absence of objective evidence that
he did, the ALJ ignores Dr. Manganiello's uncontradicted
testimony that Mancia's pneumoconiosis would still have
hastened his death. Manganiello was asked a hypothetical
question as to whether Mancia's underlying lung disease
would have had any effect on his ability to survive a heart
attack if he had suffered one. He responded:

        if someone had underlying heart disease and lung
        disease, as opposed to someone just having underlying
        heart disease and no lung disease; and if indeed they
        had a myocardial infarction, what would be your
        chances of surviving a myocardial infarction or a
        purely heart related death, given no lung disease, and
        then given the type of lung disease that Mr. Mancia
        had. And in that frame of reference, I believe that Mr.
        Mancia, given his significant lung diseases that we are
        talking about, I believe that he would have a much less
        chance of surviving a myocardial infarction or a heart-
        related death than another person without that type of
        disease. . . . But again, I don't believe that that relates
        to Mr. Mancia's case. And I don't believe Mr. Mancia
        suffered from any underlying heart disease; and I don't
        believe that he died of a myocardial infarction.

* * *

        I believe that he would have a much more difficult time
        surviving a myocardial infarction, given his underlying
        lung disease, pneumoconiosis, to whatever degree. Just
        because he would be unable to sustain a good
        oxygenation of his heart. And further improvement of
        heart function, in the face of heart damage, would
                                22



       require good stable lungs, good oxygenation to pull him
       through an event. Given his underlying lung condition,
       he would have a much more difficult time and run the
       higher risk of arrhythmias, skipped beats, and further
       deterioration of his heart, on the basis of his lungs not
       being able to keep up to an ongoing deterioration
       caused by an acute myocardial event.

Deposition Testimony, at 32-3. Manganiello added that his
answer to the hypothetical would be the same if he
assumed Mancia had a "totally disabling pneumoconiosis
as determined by the Department of Labor" as if he had
severe pneumoconiosis. Id. at 32. Manganiello's response is
consistent with the regulations. 20 C.F.R. S 410.462(b)
states:

       Where the evidence establishes that a deceased miner
       suffered from pneumoconiosis or a respirable disease
       and death may have been due to multiple causes,
       death will be found due to pneumoconiosis if it is not
       medically feasible to distinguish which disease caused
       death or specifically how much each disease
       contributed to causing death.

E. DR. CANDOR'S REPORT

Dr. Candor's report is the only medical conclusion
consistent with the ALJ's finding that Mancia's death was
not caused by complications related to his black lung
disease. Absent that report, the record reflects only the
ALJ's conclusion that Manganiello's opinion is not well
reasoned, and the ALJ's concern that Manganiello's opinion
is not corroborated by objective evidence. Accordingly, we
examine Dr. Candor's report to determine if the ALJ's
conclusion is properly supported by substantial evidence in
the record.

As noted above, Dr. Candor was a non-treating physician
who was hired by the Director to review the miner's medical
records. In a different context, we have held that the
opinion of a miner's treating physician "play[s] a major role
in the determination of eligibility for black lung benefits."
Schaaf v. Matthews, 574 F.2d 157, 160 (3d Cir. 1978); see
also Lango v. Director, OWCP, 104 F.3d at 577 ("[T]he

                                23
treating physician's opinion merits consideration.").
Nonetheless, "the opinion of a non-examining physician in
a black lung case may in some circumstances have
probative worth supporting substantial evidence," Evosevich
v. Consolidation Coal Co., 789 F.2d 1021, 1028 (3d Cir.
1986).

In Evosevich, the coal company opposing the miner's
black lung claim hired two physicians. One physician
personally examined the miner and, on the basis of that
examination, concluded that the miner was not disabled.
The other physician hired by the company opposing the
payment of benefits did not examine the miner but instead
based his opinion that the miner was not disabled on the
basis of his review of the records. The ALJ found that the
opinions of both physicians were sufficient to rebut the
interim presumption of disability under the applicable
regulations. On appeal, the miner argued, inter alia, that
the ALJ erred by according substantial weight to the
opinion of the non-examining physician. We disagreed.

However, in Evosevich, the ALJ used the opinion of the
non-examining physician to corroborate the opinion of the
examining physician. Id. at 1028. He did not use it by itself
to defeat the miner's claim. Although 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, this is not such a case.
Candor's report was the Director's case. See Hearing
Transcript at 20 ("Your Honor, the Director relies on Dr.
Candor's (sic) report, which states that pneumoconiosis,
which Mr. Mancia did have, did not in any way contribute
to or hasten his death.") (emphasis added).

In his report, Dr. Candor criticized Dr. Manganiello. Dr.
Candor stated: "[d]espite Dr. Manganiello's statement in his
letter of 4/11/91, I know of no scientific evidence which
indicates that anthracosilicosis or emphysema hasten the
progress of coronary artery disease." See P 3, Candor's
Report. However, Dr. Manganiello testified in agreement
with Dr. Candor thus further undermining the very
document that Candor's report is based upon. During
Manganiello's deposition, the following exchange occurred:

                                24



       Q: Is coronary artery disease related to
       pneumoconiosis?

       A: No, not really.
       Q: So pneumoconiosis does not cause coronary artery
       disease?

       A: No. It could be a risk factor, I would imagine. But,
       to my knowledge, no.

Id. at 28-29. Thus, both physicians agree that
anthracosilicosis does not cause or contribute to coronary
artery disease.

The ALJ rejected Dr. Manganiello's medical conclusion
because it was not supported by objective evidence. Yet, the
objective evidence on this record contradicts Candor's
report. Dr. Candor's report states that his review of
numerous x-rays "indicates a negative finding" for
pneumoconiosis. He notes: "[a]lthough the chest x-ray of
9/20/82 was positive for simple pneumoconiosis, 12 the
chest x-rays of 8/1/80, 12/21/88 and 2/21/89 were read
negative for pneumoconiosis by separate and different B-
readers. In addition the latest x-ray report (4/25/90) was
read negative for pneumoconiosis by a field reader."
Candor's Report at 1. Yet, as noted above, the Director
concedes that Manganiello had pneumoconiosis. Moreover,
our review of the x-ray reports in the record from the
hearing before ALJ Dunau13 casts doubt upon Dr. Candor's
review and his conclusion. The "Findings" on the report of
the x-ray taken on 4/26/78 state: "1st stage
anthracosilicosis with emphysema." That report is one of
those Dr. Candor said he reviewed, but he suggests that
the x-ray was negative despite the aforementioned
_________________________________________________________________

12. Pneumoconiosis is customarily classified as"simple" or
"complicated." Simple is caused by dust alone and is identified by small
opacities in the lung fields visible on a chest x-ray. Complicated, which
is generally more serious, involves progressive massive fibrosis as a
complex reaction to dust and other factors. Usery v. Turner Elkhorn
Mining Co., 428 U.S. 1, 7 (1976).

13. At oral argument, counsel for the Director informed the panel that
the record of the proceedings before ALJ Dunau were incorporated into
the record before ALJ Brown.

                                25



"conclusion." See Director's Exhibit No. 27. Similarly, a
report of an x-ray taken on October, 22, 1986 states "[T]he
lungs are hyperaerated and show a pattern compatible with
chronic obstructive disease." See Director's Exhibit No. 19.
Dr. Candor's report does not mention an x-ray taken on
this date, though he does refer to one taken on October 26,
1986. We can not determine if one of these two dates is in
error, or if two x-rays were taken within 4 days of each
other. In any event, the ALJ's opinion does not mention this
discrepancy.

Even more glaring, however, is Dr. Candor's reference to
a pulmonary function report "obtained on 9/30/82."
Candor's Report at 1. Dr. Candor concludes that the
pulmonary function values taken on that date "meet
standard." However, the record contains the actual report
of the test that was conducted on that date, by Dr. E.J.
Biancarelli, and Dr. Biancarelli's conclusions about the
report.14 Dr. Biancarelli's note states:

       Mr. Mancia was examined by me on 9/30/82 at which
       time his ventilation studies were abnormal in all
       parameters. He became dyspneic doing them. His chest
       x-ray showed coal miner's pneumoconiosis, category
       1/2Q. He had distant breath sounds as well as rales
       and wheezing upon physical examination.

       He is unable to lift, carry, walk uphill, upstairs or
       against the wind.

Directors Exhibit No. 22 (emphasis added).

ALJ Dunau noted that, although Dr. Candor reported
that a pulmonary function study performed on September
30, 1980 was normal, the ALJ adjusted the study for
Mancia's age, sex and height and concluded that "values
obtained by Dr. Candor are below those set forth in the . . .
regulations . . . as sufficient to establish total disability."
ALJ Dunau's Decision and Order at 3-4. We cannot
determine if ALJ Dunau's Decision and Order refers to a
test performed on September 30, 1980 or if she erred and
_________________________________________________________________

14. Mancia was referred to Dr. Biancarelli pursuant to his claim for
miner's benefits, and Dr. Biancarelli conducted several tests on him on
different occasions. See Transcript of Hearing Before ALJ Dunau, at 30.

                                26



was actually referring to the same September 30, 1982 test.
In any event, Dr. Cander's report is at odds with the report
of the physician who conducted the test on September 30,
1982, and ALJ Brown nevertheless accepted Cander's
report without question.

Moreover, Dr. Candor's report in this survivor's claim is
inconsistent on its face. Candor's report notes that he
reviewed a valid arterial blood gas study that "indicated a
supernormal arterial oxygen tension at rest which rose
further during exercise." Candor's Report at 2. Yet, Candor
concludes in his report that the "normal arterial oxygen
tension at rest and during exercise makes it most unlikely
that the patient's chronic lung disease had any effect upon
cardiac rhythm and function." Id. The ALJ credits this
objective medical evidence and therefore apparently accepts
Candor's conclusion that Mancia's ABG was both
"supernormal" and normal at the same time, and that it
rose further (above "supernormal") during exercise, and
remained normal during exercise simultaneously.

Despite the fact that Candor's report states that he
examined numerous records including x-rays and results of
various examinations conducted upon Mancia over the
years, his conclusion appears to rest solely upon
Manganiello's April 11, 1991 note. At P 1 of his conclusions,
Candor states:

       As noted in Dr. Manganiello's letter of 4/11/91, the
       immediate cause of Mr. Mancia's death on 8/5/90 was
       an acute myocardial infarction with resultant
       cardiopulmonary arrest. The myocardial infarction
       (heart attack) was caused by underlying coronary
       artery disease.

Candor's Report at 2. The only evidence in this record that
Mancia died of a myocardial infarction was the 4/11/90
note written by Dr. Manganiello. Similarly, at P 3 of
Candor's report he concludes:

       Despite Dr. Manganiello's statement in his letter of
       4/11/91, I know of no scientific evidence which
       indicates that anthracosilicosis or emphysema hasten
       the progress of coronary artery disease.

                                27



Id. Dr. Cander assumed that Mancia died of a heart attack
and that assumption influenced his opinion as to what, if
any role, Mancia's underlying pneumoconiosis played in his
death. Dr. Candor concludes in his report:

       The available information provides no evidence that Mr.
       Mancia's chronic lung disease was a substantially
       contributing cause to his death caused by acute
       myocardial infarction or hastened his death.

Id. However, the totality of the evidence does not support
the conclusion that Mancia suffered a heart attack. The
ALJ was not free to selectively credit testimony merely
because it supports a particular conclusion while ignoring
all evidence contrary to that conclusion.
The ALJ held that Manganiello's opinion was "not
supported by objective means," yet he did not indicate what
objective means he had in mind. Chest x-rays are used to
determine the existence of pneumoconiosis, 20 C.F.R.
S 718.202, and pulmonary function and blood gas studies
are used to determine the degree of a miner's level of
disability caused by pneumoconiosis. 20 C.F.R.
S 708.204(c)(1) and (2). None of these objective means
would have been necessary because of the Director's
concession that the miner was disabled because of his
pneumoconiosis arising out of his coal mine employment.
Furthermore, it would have been unnecessarily cruel to
subject the miner to further unnecessary pulmonary
function and blood gas studies because both tests can be
very painful to a miner already diagnosed as having
pneumoconiosis. See, OFFICE OF ADMINISTRATIVE LAW JUDGES,
JUDGES' BENCHBOOK OF BLACK LUNG BENEFITSACT, U.S. DEP'T OF
LABOR, Chapter 2: Introduction to Medical Evidence,
January, 1997.15 Finally, and most importantly, these tests
are conducted on living miners and would not be at all
helpful in answering the critical question here, i.e., did
pneumoconiosis cause or substantially contribute to the
miner's death.

An autopsy was not performed. However, the ALJ did not
_________________________________________________________________

15. Available electronically at
http://204.245.136.2/public/blalung/refmc/bbb2.htm.

                                28



find, and the Director does not contend, that an autopsy is
the only acceptable way to determine whether a miner's
lung disease caused his death. We will not require one in
cases like this by concluding that Josephine Mancia has
not met her burden of proof.

In sum, we do not believe that this record contains that
quantum of evidence that a reasonable mind wouldfind
necessary to support ALJ Brown's rejection of Dr.
Manganiello's opinion that Mancia's black lung disease
hastened his death. Kowalchick.

V.

In his brief, counsel for Josephine Mancia requests that
we do not remand for further proceedings but that we
remand to the Board with a direction to award her
survivor's benefits based, inter alia, on her age and the
protracted history of her case. See Appellant's Br. at 17.
However, at oral argument, counsel merely requested a
remand to the ALJ for further proceedings. Mrs. Mancia's
claim for survivor's benefits has been making its way
through the administrative process for seven years and she
is now 78 years old. We have previously expressed our
concern over the "dismaying inefficiency" of the black lung
administrative process. Lango v. Director, OWCP, 104 F.3d
at 575-576. Nonetheless, we cannot award black lung
benefits solely because of protracted administrative delay.
Id. at 576.

However, we can direct an award of benefits where the
"result is foreordained." Caprini v. Director, OWCP, 824 F.2d
283, 285 (3d Cir. 1987). Perhaps the clearest example of a
foreordained result is Keating v. Director, OWCP , 71 F.3d
1118, 1123-1125 (3d Cir. 1995), where we found that a
remand for further proceedings would serve no useful
purpose because the Director conceded the credibility of the
claimant's witnesses and had no contrary evidence. Under
those circumstances, we reviewed the evidence and found
that the miner's widow was entitled to survivor's benefits.

We have also declined to remand for further proceedings
and have directed an award of benefits where the result
was not as readily apparent as Keating. In Sulyma v.

                                29



Director, OWCP, 827 F.2d 922 (3d Cir. 1987), the Director
conceded that the miner raised the interim presumption of
disability under the applicable regulation. Id. at 923-924.
However, the Director, although conceding that
supplemental medical evidence would not be produced on
remand, nonetheless requested a remand so that the ALJ
could further interpret the evidence to determine if the
Director's evidence was sufficient to rebut the interim
presumption. Id. at 924. Because the Director had no
further rebuttal evidence to produce on a remand, we
reviewed the Director's medical evidence offered in rebuttal
and concluded that it was insufficient to rebut the interim
presumption. Id. at 924. Accordingly, "[i]n view of the
absence of rebuttal evidence," we found that a remand for
further proceedings was unwarranted, and, therefore,
directed an award of benefits. Id.

We followed the Sulyma rationale in Kowalchick, where
the Director, although having no further rebuttal evidence
to produce on a remand, nonetheless requested a remand
for further proceedings. Once again, we reviewed the
medical evidence the Director offered to rebut the interim
presumption of disability and found it insufficient to rebut
the presumption. Therefore, because we found the rebuttal
evidence insufficient, we found remand unnecessary and
instead directed an award of benefits. In Kowalchick we
expanded upon our Caprini statement that we can direct an
award of benefits where the result is foreordained. While
acknowledging that a remand is necessary where the record
supports conflicting inferences, we found that an award of
benefits is appropriate where the record supports only one
conclusion. Kowalchick v. Director, OWCP, 893 F.2d at 624.

We believe that the record here supports only one
conclusion, i.e., that Josephine Mancia met her burden of
establishing that contributed to her husband's death. With
the exception of Manganiello's April 11, 1991 note,
Josephine Mancia's medical evidence clearly, consistently
and unwaveringly demonstrated that the miner's death was
caused by his lung disease. Manganiello's medical opinion
as to the miner's cause of death was well-reasoned,
supported by objective means and based on competent
medical evidence. Moreover, even assuming that Mancia

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died of a heart attack as stated in the April 11th note, the
record is uncontradicted to that his lung disease would still
have hastened his death.

The Director's medical evidence was, contradictory and
inconsistent with Mancia's medical history. We find that
Josephone Mancia has demonstrated her entitlement to
survivor's benefits as a matter of law. Thus, we will direct
an award of survivor's benefits from the applicable date.

Although this will not be appropriate in every case it is
appropriate on this record. It is also consistent with the
policy of the Department of Labor's Part 718 regulations,
which recognizes that hardships can befall a miner's
survivor when a black lung disability benefits are
terminated because of the miner's death. The applicable
regulation provides not only that a claim for survivor's
benefits shall be adjudicated on an "expedited basis," but
also that where the "initial medical evidence appears to
establish that death was due to pneumoconiosis, the
survivor will receive benefits unless the weight of the
evidence as subsequently developed by the Director .. .
establishes that the miner's death was not due to
pneumoconiosis . . . ." 20 C.F.R. S 718.205(d).

VI.

Accordingly, we will grant the petition for review, reverse
the decision of the Board and remand for the limited
purpose of awarding survivor's benefits in accordance with
20 C.F.R. S 725.503(c). Because Mrs. Mancia has been
litigating this claim for seven years and because she is 78
years old, we urge the BRB to expedite this award so that
survivor's benefits will begin as soon as possible.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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