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


1-14-1997

Lango v. Director OWCP
Precedential or Non-Precedential:

Docket 96-3293




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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                           No. 96-3293


                           MARY LANGO,
                    Widow of ANDREW F. LANGO,

                                          Petitioner
                               v.

      DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,

                                   Respondent/Party-in Interest



            On Petition for Review of a Decision of
          the Benefits Review Board (BRB No. 95-1659)


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                        January 13, 1997

                 Before: SLOVITER, Chief Judge,
              GREENBERG and SCIRICA, Circuit Judges

                (Opinion filed January 14, 1997)




Maureen H. Krueger
Jenkintown, PA 19046

         Attorney for Petitioner

J. Davitt McAteer
  Acting Solicitor of Labor
Donald S. Shire
  Associate Solicitor
Christian P. Barber
  Counsel for Appellate Litigation
Barry H. Joyner
United States Department of Labor
Office of the Solicitor
Washington, DC 20210

          Attorneys for Respondent




                               1
                         OPINION OF THE COURT


SLOVITER, Chief Judge.



          Before us is a Petition for Review filed by Mary Lango,

widow of a deceased coal miner, from the decision of the Benefits

Review Board (BRB) affirming the denial by the Administrative Law

Judge (ALJ) of her claim for survivors' benefits under the Black

Lung Benefits Act, 30 U.S.C. §§ 901 - 945.      The sole issue before

us in this case is whether there was substantial evidence to

support the decision reached by both the BRB and the ALJ that

Mrs. Lango failed to establish that her husband's pneumoconiosis

was a contributing cause of his death.     Although we find

resolution of that issue relatively straightforward, there is a

procedural aspect of the case which we believe merits comment.
                                  I.



          Mrs. Lango's husband worked for sixteen and a half

years as a miner and died at the age of 56 on August 9, 1982.      On

August 18, 1982, Mrs. Lango filed a claim for survivors' benefits

under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945, which

was denied on September 29, 1982.      On October 19, 1982, she

requested a formal hearing before an Administrative Law Judge, a

request that the brief for the Respondent Director, Office of

Workers' Compensation Programs, concedes was timely.

Nonetheless, after she still had not received a hearing on her

original claim for almost twelve years, she filed another claim

for survivors' benefits dated January 21, 1994.


                                  2
          The still-pending 1982 claim was merged with the 1994

claim, and the ALJ held a hearing on January 19, 1995.     A

decision was finally issued denying benefits on May 15, 1995,

which the BRB affirmed.    It is that decision that is before us,

more than 14 years after the claim was filed.    By the time this

case is resolved, Mrs. Lango will be 70 years old.

          The Respondent offers no adequate explanation for this

unseemly delay.   Its brief merely states that "for reasons which

are not apparent from the record, DOL [the Department of Labor]

did not refer the case to the Office of Administrative Law Judges

for a formal hearing."    Respondent's brief at 3.   In a footnote

respondent states: "The Director regrets and apologizes for the

lengthy delay in the adjudication of Mrs. Lango's claim."      Id. at

n.2.

           Were this the only case to come to our attention with

such delay, we would be inclined to attribute it to a rare

bureaucratic snag.   However, we note that some recent black lung

cases in this circuit suggest that this dismaying inefficiency is

not unusual; in fact, the problem appears to be common enough

that a brief digression is in order.    In Kowalchick v. Director,
OWCP, 893 F.2d 615 (3d Cir. 1990), benefits were awarded

seventeen years after the initial claim was filed.     Fourteen

years passed in Sulyma v. Director, OWCP, 827 F.2d 922 (3d Cir.

1987), and, as the opinion in that case revealed, Mr. Sulyma was

74 years old when he finally received benefits.      Ten years passed

in Gonzales v. Director, OWCP, 869 F.2d 776 (3d Cir. 1989).
Nineteen years were required to grant benefits in Kline v.



                                 3
Director, OWCP, 877 F.2d 1175 (3d Cir. 1989).   Almost seventeen

years elapsed in Keating v. Director, OWCP, 71 F.3d 1118 (3d Cir.

1995).   As far as we can tell, it appears that many cases

languish while waiting for an ALJ or the BRB to hear them.

Although there may have been special circumstances in some of

these cases that explain the delay, and we have not exhaustively

examined the records, there is enough basis in the mere

recitation of the facts to prompt consideration by the relevant

administrators beyond a mere apology.

          Delays are especially significant for recipients of

black lung benefits since most are nearing the end of their

lives.   Claimants have less time to use the benefits, and they

often must wait when illness is increasing their expenses but

while retirement has reduced their income.   Worse, some may die

before litigation resolves their claims.

          Chief Judge Posner has expressed similar concerns about

black lung cases in the Seventh Circuit.   In Amax Coal Co. v.

Franklin, 957 F.2d 355, 356 (7th Cir. 1992), he remarked,
As so often in black lung cases, the processing of the
          claim has been protracted scandalously . . .
           Such delay is not easy to understand. These
          are not big or complex cases . . . . [T]he
          typical hearing lasts, we are told, no more
          than an hour . . . The delay in processing
          these claims is especially regrettable
          because most black lung claimants are middle-
          aged or elderly and in poor health, and
          therefore quite likely to die before
          receiving benefits if their cases are spun
          out for years. We hope that Congress will
          consider streamlining the adjudication of
          disability benefits cases (not limited to
          black lung) along the lines suggested by the
          Federal Courts Study Committee. See the
          Committee's Report (April 2, 1990), at pp.
          55-58.


                                4
             According to one commentator who cited official reports

to Congress, the approval rate for applicants for federal black

lung benefits is exceedingly low.       See Timothy F. Cogan, Is the

Doctor Hostile? Obstructive Impairments and the Hostility Rule in

Federal Black Lung Claims, 97 W. Va. L. Rev. 1003, 1004 (1995).

It may be that the lengthy time required to process a claim is

partly responsible.    Cogan estimates that on average it takes

about a decade after an attorney opens a file on a black lung

case until benefits are paid and the attorney can collect a fee.

 Thus, the magnitude of the delays is also likely to affect the

legal representation available to claimants.      Id. at 1004 n.3.

Hopefully, the publication of our concern will come to the

attention of authorities who can do something about it.

             We, of course, are not authorized to require an award

of benefits based on an inexplicably long delay, and thus turn to

the merits of the matter before us.       We must decide whether the

ALJ or the Benefits Review Board committed an error of law.

Kowalchick v. Director, OWCP, 893 F.2d at 619.       Under the BRB's

standard of review, the ALJ's factual findings must be supported

by substantial evidence.    Id.   Therefore, this court must, when

reviewing factual findings, "independently review the record and

decide whether the ALJ's findings are supported by substantial

evidence."    Id. (citations omitted).

                                  II.




                                  5
           Under 30 U.S.C. § 901(a) (1982), Mrs. Lango is entitled

to benefits if her husband's death was "due to pneumoconiosis."

When a claim is filed on or after January 1, 1982, "death will be

considered due to pneumoconiosis if any of the following criteria

is met: . . . (2) where pneumoconiosis was a substantially

contributing cause or factor leading to the miner's death or

where the death was caused by complications of pneumoconiosis."

20 C.F.R. § 718.205(c)(2).

           In Lukosevicz v. Director, OWCP, 888 F.2d 1001 (3d Cir.

1989), this court considered the meaning of the regulatory phrase

a "substantially contributing cause or factor."     After surveying

the legislative history of the 1981 Black Lung Benefits

Amendments, we held that pneumoconiosis is a substantially

contributing cause whenever it actually hastens a miner's death

even if a disease unrelated to pneumoconiosis played a role as

well.   Id. at 1006.   Thus, we concluded that even if

pneumoconiosis hastened by only a few days a miner's death from

pancreatic cancer, there was a basis to award benefits.   Our

interpretation in Lukosevicz has been followed by at least three

other circuits.   See Brown v. Rock Creek Mining Co., Inc., 996
F.2d 812, 816 (6th Cir. 1993); Peabody Coal Co. v. Director,

OWCP, 972 F.2d 178, 183 (7th Cir. 1992); Shuff v. Cedar Coal Co.,

967 F.2d 977, 979 (4th Cir. 1992).

            In this case, there appears to be no dispute that Mr.

Lango's death was caused by lung cancer.   Mrs. Lango notes that

the ALJ did find that x-ray evidence showed Mr. Lango had

pneumoconiosis, a finding the Director does not challenge.     The


                                 6
ALJ also found that no evidence rebutted the presumption in

§718.203(b) that Mr. Lango's pneumoconiosis resulted from his

sixteen and a half years of coal mine employment.    However, the

ALJ denied benefits based on his finding that Mrs. Lango did not

provide "credible and substantial evidence that pneumoconiosis

contributed to or hastened the miner's death."   App. at 14.

          The only evidence introduced by the claimant in an

effort to show that Mr. Lango's pneumoconiosis hastened his death

was his death certificate, which had been signed by Dr. Anthony

DiNicola, his treating physician for 25 years, the hospital

records, and a report written in 1994 by Dr. DiNicola stating

that in his opinion pneumoconiosis hastened death.    App. at 49.

Inexplicably, at the 1995 hearing before the ALJ the claimant did

not proffer any evidence by Dr. DiNicola, who was still available

to testify about the basis of his opinion.

          Looking to the three sources of evidence, the death

certificate, the doctor's report, and the hospital records, we

note that the death certificate listed lung cancer under the

heading "immediate cause of death."   App. at 39.   It also listed

anthracosilicosis, a form of pneumoconiosis according to §

718.201, as a significant condition contributing to death.     Since

 Dr. DiNicola signed the death certificate, the ALJ looked to Dr.

DiNicola's report, even though it was prepared 14 years after Mr.

Lango's death, to ascertain if there was a reasoned basis for the

conclusion that pneumoconiosis contributed to Mr. Lango's death

          set forth in the 1982 death certificate and the 1994

report.


                               7
          However, in his report, Dr. DiNicola merely opined:

"[b]ecause of the associated co-worker's [sic] Pneumoconiosis,

chronic obstructive pulmonary disease, that is,

Anthracosilicosis, I can state that this entity of Pneumoconiosis

hastened his death."   App. at 50.    Dr. DiNicola gave no basis for

this conclusion.   His report merely stated that "I have enclosed

pertinent records; copies from The Pottsville Hospital and Warne

Clinic, within this packet."   App. at 49.    Although the records

do support his diagnoses of anthracosilicosis and lung cancer,

this is not an issue in dispute.     The difficulty that the ALJ,

the BRB, and we find is that the hospital records do not

specifically explain the doctor's conclusion that the miner's

death was hastened by pneumoconiosis.

          It is noteworthy that in rejecting the claim because of

inadequate evidence to show that pneumoconiosis contributed to

Mr. Lango's death, the ALJ did not rely on the opinion by Dr.

Samuel Spagnolo, the physician consulted by the OWCP, that

pneumoconiosis did not hasten Mr. Lango's death.     On the

contrary, the ALJ rejected Dr. Spagnolo's opinion as inconclusive

since Dr. Spagnolo did not see any of the positive x-ray evidence

showing Mr. Lango had pneumoconiosis.     Nonetheless, the burden

remained on the claimant, and the claimant failed to meet it.

          Mrs. Lango argues that Dr. DiNicola had at least as

plausible a basis for his judgment as did the doctor in

Lukosevicz, whose conclusion as to the contributing nature of

pneumoconiosis was deemed a sufficient basis to support the award

of benefits.   As the Director notes, however, the critical


                                8
difference is that in Lukosevicz the physician who rendered the

opinion had performed an autopsy, a revealing diagnostic tool

providing physical evidence to support a medical conclusion.    In

contrast, neither Dr. DiNicola nor anyone else performed an

autopsy of Mr. Lango.

          The mere statement of a conclusion by a physician,

without any explanation of the basis for that statement, does not

take the place of the required reasoning.    As the ALJ stated, "An

assertion which does not explain how the doctor reached the

opinion expressed or contain his reasoning does not qualify as a

reasoned medical opinion."   App. at 13.   See Freeman United Coal

Corp. v. Cooper, 965 F.2d 443 (7th Cir. 1992) (rejecting a

conclusory statement by doctor that pneumoconiosis contributed to

the miner's death).

          It is true, as Mrs. Lango stresses, that Dr. DiNicola

was the miner's treating physician for many years, and that the

treating physician's opinion merits consideration.   See Schaaf v.

Matthews, 574 F.2d 157, 160 (3d Cir. 1978).    Although there is

some question about the extent of reliance to be given a treating

physician's opinion when there is conflicting evidence, compare
Brown v. Rock Creek Mining Co., 996 F.2d 812, 816 (6th Cir. 1993)

(opinions of treating physicians are clearly entitled to greater

weight than those of non-treating physicians) with Consolidation

Oil Co. v. OWCP, 54 F.3d 434, 438 (7th Cir. 1995) (improper to

favor opinion of treating physicians over opinions of non-

treating physicians), the ALJ may permissibly require the

treating physician to provide more than a conclusory statement


                                9
before finding that pneumoconiosis contributed to the miner's

death.

            The claimant emphasizes that the ALJ mistakenly thought

that hospital records for the week prior to Mr. Lango's death

were missing, when, in fact, Mr. Lango was not in the hospital

for that period.    Thus, the claimant hypothesizes that the ALJ's

mistake about the hospital records affected his assessment of the

credibility of Dr. DiNicola's report.    However, the ALJ did not

disregard information in the hospital records that was otherwise

relevant.    Nothing in those hospital records supplies the link

that is missing in this case - a nexus between the pneumoconiosis

and Mr. Lango's death.

            The BRB recognized the ALJ's mistake but nevertheless

concluded:    "although claimant contends that the administrative

law judge erred in stating that the miner's hospital records were

incomplete, the administrative law judge properly found that the

hospital records do not indicate the role the miner's lungs

and/or anthracosilicosis played in the miner's death."    App. at

6.   Regretfully, we must agree.

            In evaluating the opinions set forth in a medical

report, we must examine the validity of the reasoning of the

opinion.    Director, OWCP v. Siwiec, 894 F.2d 635, 639 (3d Cir.

1990).   The court in Risher v. Office of Workers' Compensation

Programs, 940 F.2d 327, 331 (8th Cir. 1991), stated that a

factfinder "may disregard a medical opinion that does not

adequately explain the basis for its conclusion."    See also
Brazzalle v. Director, OWCP, 803 F.2d 934, 936 (8th Cir. 1986);



                                   10
Tennessee Consolidated Coal Co. v. Crisp, 866 F.2d 179, 185 (6th

Cir, 1989); Shrader v. Califano, 608 F.2d 114, 118 (4th Cir.

1979).

             The Risher court noted that the mere fact that a death

certificate refers to pneumoconiosis cannot be viewed as a

reasoned medical finding, particularly if no autopsy has been

performed.    See Risher, 940 F.2d at 331.   Therefore, on the basis

of the record in this case and as presented to both the ALJ and

the BRB, there was no basis upon which we could overturn their

decisions.

          We point out that in its brief the Director notes that

Mrs. Lango can request a modification based on another opinion by

Dr. DiNicola if he can supply one, meeting the requirements of

the statutory scheme.     The Director cites in support 33 U.S.C. §

922, as incorporated by 30 U.S.C. § 932(a), 20 C.F.R. § 725.310

(permitting DOL to reconsider denial of benefits upon timely

request by a party) and Keating v. Director, OWCP, 71 F.3d 1118

(3d Cir. 1995) (construing the grounds upon which a denial of

benefits can be reconsidered broad enough to include the ultimate

fact of denial).
                                 III.



             For the reasons set forth above, we will deny the

petition for review of an order of the Benefits Review Board

without prejudice to Mrs. Lango's right to take advantage of the

opportunities noted in the Director's brief.




                                  11
12
