Morgan v. Director, Office of Workers' Compensation Programs ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1516
LINDA J. MORGAN, widow of Noble Morgan,
Petitioner,
versus
DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS; ELKAY MINING COMPANY,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(04-473-BLA)
Argued: September 27, 2007 Decided: December 20, 2007
Before NIEMEYER and MICHAEL, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Senior Judge Ellis wrote the
opinion, in which Judge Niemeyer and Judge Michael joined.
ARGUED: Leonard Joseph Stayton, Inez, Kentucky, for Petitioner.
Ashley M. Harman, JACKSON & KELLY, P.L.L.C., Morgantown, West
Virginia, for Respondents. ON BRIEF: Douglas A. Smoot, JACKSON &
KELLY, P.L.L.C., Morgantown, West Virginia, for Respondent Elkay
Mining Company.
Unpublished opinions are not binding precedent in this circuit.
ELLIS, Senior District Judge:
Petitioner Linda Morgan seeks review of a decision and order
of the United States Department of Labor Benefits Review Board
(Board) affirming the Administrative Law Judge’s (ALJ) denial of
her claim for survivor’s benefits under the Black Lung Benefits
Act, 30 U.S.C. § 901 et seq. (the Act). Because the factual
findings of the ALJ are supported by substantial evidence and the
legal conclusions of both the ALJ and the Board are consistent with
applicable law, we affirm.
I.
Noble Morgan (Morgan), a former coal miner, died on July 7,
1999, at the age of 61. During his years of employment with the
coal mines, Morgan engaged primarily in underground work as a roof
bolter, working in dusty conditions. He also worked as a carpenter
for several years, and then later as a security guard for a coal
mine, where he was not exposed to a significant amount of coal
dust. Morgan filed two applications for black lung benefits during
his lifetime, the first in 1973 and the second in 1997. Both of
Morgan’s claims for living black lung benefits were denied by the
District Director.
Two years prior to his death, Morgan was diagnosed with colon
cancer. Although he was treated for the cancer and underwent
chemotherapy, the medical evidence reflects that at some point
2
prior to his death, the cancer may have metastasized to his spine
and possibly other areas, as well. Additionally, the record
reflects that Morgan suffered from congestive heart failure and
smoked tobacco for more than forty-five years at the rate of a pack
of cigarettes or more per day.
Morgan’s death certificate lists his immediate cause of death
as “lobar pneumonia” and indicates that an autopsy was performed of
the “lung only.” J.A. 92. The autopsy report was issued by Dr.
Alex Racadag on July 12, 1999, five days after Morgan’s death.
Based on his examination of Morgan’s lung tissue, Dr. Racadag
rendered a diagnosis of “acute bronchopneumonia and lobar
pneumonia,” “mild simple coal worker’s pneumoconiosis with focal
emphysema” and “pleural adhesions,” noting simply, as a “comment,”
that these conditions “probably contributed to the patient’s
morbidity and subsequent demise.” J.A. 93.
On July 29, 1999, petitioner, Morgan’s surviving spouse, filed
a timely claim for survivor’s benefits under the Act. On October
4, 1999, the District Director denied petitioner’s claim for
survivor’s benefits. Petitioner then requested a formal hearing
before the Office of Administrative Law Judges and a de novo
hearing was eventually held before an ALJ on February 28, 2002. On
August 27, 2002, following the presentation of evidence and the
submission of written closing arguments, the ALJ denied
petitioner’s claim for black lung survivor’s benefits. J.A. 352-
3
73. The ALJ’s August 27, 2002 decision included a lengthy
description of Morgan’s work and medical history, as well as a
detailed summary of the medical evidence in the administrative
record, including chest x-rays, pulmonary function studies,
arterial blood gas studies and various physicians’ reports. In the
end, the ALJ found that petitioner had established the existence of
legal pneumoconiosis on the basis of chest x-ray and certain
medical opinion evidence, but concluded nonetheless that petitioner
had failed to establish that the pneumoconiosis caused,
substantially contributed to, or hastened Morgan’s death, a
required element for entitlement to survivor’s benefits under the
Act. J.A. 368-71.
Petitioner sought review of the ALJ’s August 27, 2002
decision, arguing essentially that the particular medical opinions
relied on by the ALJ to support his causation conclusion could
carry little or no weight given that these physicians did not
diagnose Morgan with pneumoconiosis, as did the ALJ. Thus, on
September 12, 2003, the Board remanded petitioner’s claim to the
ALJ for further consideration in light of Scott v. Mason Coal Co.,
289 F.3d 263 (4th Cir. 2002), wherein we recognized that when a
medical opinion is in “direct contradiction” to the ALJ’s finding
that a miner suffers from pneumoconiosis arising out of his coal
mine employment, the ALJ can give weight to that opinion only if he
provides specific and persuasive reasons for doing so, and even
4
then, the opinion can “carry little weight, at the most.” Id. at
269.
On remand, and by Order dated February 12, 2004, the ALJ again
denied petitioner’s request for survivor’s benefits, concluding, as
before, that petitioner was unable to sustain her burden of proving
that pneumoconiosis caused or contributed to Morgan’s death. J.A.
410. In reaching this result, the ALJ relied primarily on the
causation opinions of four physicians, namely Dr. Everett F.
Oesterling, Dr. P. Raphael Caffrey, Dr. Stephen T. Bush and Dr.
Samuel V. Spagnolo.1 Specifically responding to the concerns
expressed by the Board in their remand order, the ALJ found, inter
alia, that these four physicians had diagnosed symptoms consistent
with, and therefore not in direct contradiction to, the ALJ’s
finding of legal pneumoconiosis and thus, that their opinions could
be relied on under Scott. J.A. 408-10. A brief summary of these
four physicians’ findings illustrates this point.
First, Dr. Oesterling, a pathologist board-certified in
anatomic and clinical pathology as well as nuclear medicine,
reviewed Morgan’s autopsy slides and medical records. He found the
“most significant aggregate of mine dust deposition” in Morgan’s
lung tissue to be approximately 0.5 millimeters in greatest
1
The ALJ either discounted or rejected the opinions of several
other physicians, including Dr. Racadag, Dr. Francis H.Y. Green,
Dr. Richard Naeye, Dr. Erika Crouch, Dr. Gregory Fino, Dr. James R.
Castle, Dr. Mohammed Ranavaya, Dr. D.L. Rasmussen and Dr. Edward
Velasco.
5
dimension, a size “not sufficient to warrant a diagnosis of
coalworkers’ pneumoconiosis.” J.A. 206-07. Dr. Oesterling
reported that he observed “limited black pigment contained within
a loose matrix of pink fibers” in the lung tissue; he also
identified “abundant numbers of elongate birefringent silica
crystals,” noting specifically that “the dust is indeed of coalmine
origin.” J.A. 207. He nonetheless opined that “[d]espite the
presence of this mine dust, the quantities are insufficient to
warrant more than a comment that these lungs demonstrate
anthracotic pigmentation.” J.A. 207. Noting the presence of
pneumonia and emphysema in Morgan’s lungs, Dr. Oesterling found
those conditions attributable to Morgan’s long-time cigarette use
rather than to his exposure to coal dust. He further concluded
that the extensive pneumonia that led to Morgan’s death was caused
by congestive heart failure, cancer, and the resultant therapies
associated with cancer. Finally, and particularly relevant here,
he concluded that “the limited structural change [in the lungs] due
to mine dust exposure could have in no way hastened or contributed
to [Morgan’s] death.” J.A. 209. Put differently, Dr. Oesterling
concluded that “mine dust exposure could not have produced lifetime
disability nor could it have in any way contributed to or
accelerated [Morgan’s] death.” J.A. 207.
Dr. Caffrey, also a board-certified pathologist, observed a
“moderate amount of anthracotic pigment with a few tiny hilanized
6
nodules” when examining the autopsy slides of Morgan’s lung tissue.
J.A. 186. He likewise observed “some birefringent particles
present” in the lung tissue, noting that “the changes on the left
side are very minimal” and that “in the lymph node tissues there is
only a small amount present.” J.A. 186. Dr. Caffrey further noted
that “[t]here is only a very minimal amount of anthracotic pigment
present and most of this is subpleurally located with a very
minimal amount around a few blood vessels and respiratory
bronchioles.” J.A. 187. He stated definitively that he did not
see “any anthracotic pigment with associated reticulin deposits and
focal emphysema.” J.A. 187. Thus, he concluded that “[t]here is
no evidence of silicosis within the lung tissue, there is no
evidence of complicated pneumoconiosis, and there is no evidence of
simple coal worker’s pneumoconiosis either in my opinion.” J.A.
187. On this issue, he specifically stated, inter alia, the
following:
It is my opinion...that Mr. Noble Morgan definitely did
not have coal worker’s pneumoconiosis or any other
occupational lung disease. I say this because there is
only a very minimal amount of anthracotic pigment within
the sections of lung tissue. I definitely do not agree
with the Autopsy Pathologists’s diagnosis of mild simple
worker’s pneumoconiosis and I definitely do not agree
with...Frances H.Y. Green’s diagnosis of simple coal
worker’s pneumoconiosis of mild severity.
J.A. at 189. Dr. Caffrey concluded that “the minimal amount of
anthracotic pigment, coal dust, found in [Morgan’s] lungs
definitely did not cause him pulmonary or respiratory impairment
7
and did not cause him any disability nor did it play any role in,
or hasten, his death.” J.A. 191.
Dr. Bush, a board-certified anatomical and clinical
pathologist, likewise acknowledged the presence of coal mine dust
in Morgan’s lung tissue, but concluded that “the degree of change
from coal mine dust in the lungs is too limited in degree and
extent to have any contribution to the events leading to death.”
J.A. 198. He further concluded that “[t]he coal dust deposited in
the lungs of Mr. Morgan produced no barrier to lung function and
therefore could not have hastened death by any means including a
contribution to hypoxemia.” J.A. 198. In reaching these
conclusions, Dr. Bush noted, inter alia, that
[t]he reports of the autopsy prosector [Dr. Racadag] and
Dr. Green exaggerate the microscopic changes in the lung
related to dust deposition. In addition, they exaggerate
the effects of these proposed changes on lung function.
They incorrectly force a theory of causation. Mr. Morgan
died as a result of carcinoma and its complications, a
straightforward and unfortunately common event.
J.A. 198.
Finally, Dr. Spagnolo, a board-certified physician in internal
medicine and pulmonary disease, concluded that Morgan’s death was
“a direct result of his invasive and metastatic cancer in
association with complications related to cancer chemotherapy, i.e.
bronchopneumonia, lung fibrosis and probable sepsis.” J.A. 128.
While Dr. Spagnolo acknowledged that Morgan experienced symptoms of
“coughing, wheezing and sputum production,” he attributed these
8
symptoms to Morgan’s long-term cigarette smoking. Id. He also
attributed Morgan’s “exertional chest pain, two-pillow orthopnea
and ankle edema” to his underlying coronary artery disease. Id.
Dr. Spagnolo concluded that Morgan had no “pulmonary/respiratory
impairment attributable to pneumoconiosis or related to his prior
coalmine employment” and that “[n]one of his symptoms, complaints,
or medical conditions is related to his coal dust exposure or
coalmine employment.” J.A. 129. He further found that there was
“not sufficient evidence in the lung tissue to justify a diagnosis
of coal workers’ pneumoconiosis.” J.A. 134. On the basis of his
review, Dr. Spagnolo concluded that “Morgan’s death was unrelated
to and not hastened, even briefly, by pneumoconiosis nor was
pneumoconiosis a contributing factor in his death.” J.A. 129.
Alternatively, Dr. Spagnolo opined that even assuming Morgan had
some degree of pneumoconiosis, any such “dust-related lung disease
was far too limited to have contributed to or hastened...death.”
J.A. 134.
Based primarily on the causation opinions of Drs. Oesterling,
Caffrey, Bush and Spagnolo, the ALJ concluded that while Morgan’s
legal pneumoconiosis had been established for purposes of the Act,
petitioner had not sustained her burden of proving this condition
caused or hastened Morgan’s death as required for petitioner to be
entitled to black lung survivor’s benefits. J.A. 410.
9
Petitioner’s claim was therefore denied by the ALJ on remand, by
Order dated February 12, 2004. J.A. 411.
Following the ALJ’s second denial of petitioner’s claim for
black lung survivor’s benefits, petitioner again appealed the ALJ’s
decision to the Board. This time, the Board affirmed the ALJ’s
denial of benefits, finding specifically that the ALJ’s decision
“is supported by substantial evidence and is in accordance with
law.” J.A. 449. Petitioner then filed a timely appeal of the
Board’s March 30, 2005 Decision and Order to this court.
II.
We review the Board’s decision upholding the ALJ’s denial of
survivor’s benefits to petitioner to determine whether the Board
correctly found that the ALJ’s factual findings were supported by
substantial evidence in the record. See Bill Branch Coal Corp. v.
Sparks, 213 F.3d 186, 190 (4th Cir. 2000). To do so, we review the
record independently, assessing the ALJ’s findings under the
substantial evidence standard. Scott, 289 F.3d at 267. In this
regard, “[s]ubstantial evidence consists of sufficient relevant
evidence to convince a reasonable mind that the evidence is
adequate to support a conclusion.” Id. (citations omitted). Thus,
applying this standard, “we must affirm the Board if it properly
determined that the ALJ’s findings are supported by substantial
evidence.” Doss v. Director, Office of Workers’ Comp. Programs, 53
10
F.3d 654, 659 (4th Cir. 1995). We review the ALJ’s and the Board’s
conclusions of law de novo. See Scott v. Mason Coal Co., 60 F.3d
1138, 1140 (4th Cir. 1995).
III.
The regulatory standards applicable to petitioner’s claim are
clear. Specifically, to be entitled to survivor’s benefits under
the Act, a petitioner must establish that the coal miner’s death
was “due to pneumoconiosis” in accordance with 20 C.F.R. § 718.205.
In this regard, for purposes of adjudicating survivors’ claims
filed, as here, on or after January 1, 1982, death is considered to
be “due to pneumoconiosis” if any of the following criteria are
met:
(1) Where competent medical evidence establishes that
pneumoconiosis was the cause of the miner’s death, 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 of pneumoconiosis, or
(3) Where the presumption set forth at § 718.304 is
applicable.2
20 C.F.R. § 718.205(c). Thus, the regulations expressly provide
that “survivors are not eligible for benefits where the miner’s
2
It is undisputed that this presumption does not apply here.
Section 718.304 provides, in pertinent part, that “[t]here is an
irrebuttable presumption that...a miner’s death was due to
pneumoconiosis...if such miner...suffered from a chronic dust
disease of the lung which,” when diagnosed by chest x-ray, biopsy,
autopsy or other means, yields certain medical findings not present
in the instant case. 20 C.F.R. § 718.304.
11
death was caused by a traumatic injury or the principal cause of
death was a medical condition not related to pneumoconiosis, unless
the evidence establishes that pneumoconiosis was a substantially
contributing cause of death,” that is, if the pneumoconiosis
“hasten[ed] the miner’s death.” 20 C.F.R. § 718.205(c).
For purposes of the Act, “pneumoconiosis” means “a chronic
dust disease of the lung and its sequelae, including respiratory
and pulmonary impairments, arising out of coal mine employment.”
20 C.F.R. § 718.201(a). This definition includes both the medical,
or “clinical” definition of pneumoconiosis, as well as the broader
statutory definition of “legal” pneumoconiosis. Id.; see also
Island Creek Coal Co. v. Compton, 211 F.3d 203, 210 (4th Cir.
2000). In this regard, the term “legal pneumoconiosis” includes,
but is not limited to, “any chronic restrictive or obstructive
pulmonary disease arising out of coal mine employment.” 20 C.F.R.
§ 718.201(a)(2).3 Moreover, the phrase “arising out of coal mine
3
Clinical pneumoconiosis, in contrast, is more narrowly
defined as consisting
of those diseases recognized by the medical community as
pneumoconioses, i.e., the conditions characterized by
permanent deposition of substantial amounts of
particulate matter in the lungs and the fibrotic reaction
of the lung tissue to that deposition caused by dust
exposure in coal mine employment. This definition
includes, but is not limited to, coal workers’
pneumoconiosis, anthracosilicosis, anthracosis,
anthrosilicosis, massive pulmonary fibrosis, silicosis or
silicotuberculosis, arising out of coal mine employment.
20 C.F.R. § 718.201(a)(1).
12
employment” includes “any chronic pulmonary disease or respiratory
or pulmonary impairment significantly related to, or substantially
aggravated by, dust exposure in coal mine employment.” 20 C.F.R.
§ 718.201(b). Given this, it is clear, for example, that “a
medical diagnosis finding no coal workers’ pneumoconiosis is not
equivalent to a legal finding of no pneumoconiosis,” as the legal
definition of pneumoconiosis set forth in § 718.201 is
significantly broader than the medical definition of coal workers’
pneumoconiosis. Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 821
(4th Cir. 1995). Indeed, legal pneumoconiosis, unlike medical or
clinical pneumoconiosis, “also encompasses ‘diseases whose etiology
is not the inhalation of coal dust, but whose respiratory and
pulmonary symptomatology have nonetheless been made worse by coal
dust exposure.’” Lewis Coal Co. v. Director, OWCP, 373 F.3d 570,
577 (4th Cir. 2004) (quoting Clinchfield Coal Co. v. Fuller, 180
F.3d 622, 625 (4th Cir. 1999)). In other words, legal
pneumoconiosis has “a broad definition, one that effectively allows
for the compensation of miners suffering from a variety of
respiratory problems that may bear a relationship to their
employment in the coal mines.” Rose v. Clinchfield Coal Co., 614
F.2d 936, 938 (4th Cir. 1980). Legal pneumoconiosis “includes,
for example, emphysema, asthma, and chronic bronchitis, if
triggered by coal mine employment.” Dante Coal Co. v. Director,
13
OWCP, 164 Fed. Appx. 338, 341 n.2 (4th Cir. 2006) (citations
omitted).
These principles, applied to the administrative record at
issue here, compel the conclusion that the ALJ’s denial of
petitioner’s claim for survivor’s benefits under the Act was
supported by substantial evidence and must be affirmed. And,
significantly, although petitioner contends the ALJ erred in
relying on the opinions of Drs. Oesterling, Caffrey, Bush and
Spagnolo, given that these physicians did not explicitly diagnose
Morgan with pneumoconiosis — legal or otherwise — it is clear the
ALJ’s reliance on these opinions was entirely proper and consistent
with Scott and its progeny. Indeed, unlike the situation
contemplated in Scott, this is not a case where the doctors relied
on by the ALJ “opined that [Morgan] did not have legal or medical
pneumoconiosis, did not diagnose any condition aggravated by coal
dust, and found no symptoms related to coal dust exposure.” Scott,
289 F.3d at 269 (emphasis added). Instead, all four of these
physicians “found symptoms consistent with legal pneumoconiosis,”
including, for example, emphysema, coughing, wheezing, and the
undisputed presence of coal dust in Morgan’s lung tissue. Scott,
289 F.3d at 269; see supra Part I. Thus, because Drs. Oesterling,
Caffrey, Bush and Spagnolo did not premise their causation opinions
on an “erroneous finding” contrary to the ALJ’s finding of legal
pneumoconiosis, and because their respective medical findings did
14
not necessarily contradict the ALJ’s finding of legal
pneumoconiosis, the ALJ did not err in relying on those physicians’
opinions with respect to the issue of causation. See Hobbs, 45
F.3d at 821; Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1195 (4th
Cir. 1995).
In the end, the medical opinions relied on by the ALJ provide
more than substantial evidence to support the ALJ’s conclusion that
Morgan’s legal pneumoconiosis did not contribute to or hasten his
death in accordance with 20 C.F.R. § 718.205(c). Scott, 289 F.3d
at 267. Put differently, the opinions of Drs. Oesterling, Caffrey,
Bush and Spagnolo constitute “sufficient relevant evidence to
convince a reasonable mind that the evidence is adequate to
support” the ALJ’s denial of petitioner’s claim for black lung
survivor’s benefits under the Act. Id. For this reason, the ALJ’s
February 12, 2004 decision must be affirmed.
AFFIRMED
15