Burek v. Valley Camp Coal Co. , 12 F. App'x 152 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SANDRA L. BUREK, widow of 
Raymond Burek,
Petitioner,
v.
VALLEY CAMP COAL COMPANY;  No. 00-1633
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(99-694-BLA)
Argued: April 2, 2001
Decided: June 18, 2001
Before LUTTIG and TRAXLER, Circuit Judges, and
Lacy H. THORNBURG, United States District Judge for the
Western District of North Carolina, sitting by designation.
Petition denied by unpublished opinion. Judge Traxler wrote the
majority opinion, in which Judge Luttig joined. Judge Thornburg
wrote a dissenting opinion.
COUNSEL
ARGUED: Timothy Francis Cogan, CASSIDY, MYERS, COGAN,
VOEGELIN & TENNANT, L.C., Wheeling, West Virginia, for Peti-
2 BUREK v. VALLEY CAMP COAL CO.
tioner. Ronald Bruce Johnson, MCDERMOTT & BONENBERGER,
P.L.L.C., Wheeling, West Virginia, for Respondents.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
TRAXLER, Circuit Judge:
Sandra L. Burek petitions for review of the order of the Benefits
Review Board ("the Board") upholding an Administrative Law
Judge’s ("ALJ") denial of survivor’s benefits under the Black Lung
Benefits Act ("the Act"), 30 U.S.C.A. §§ 901-945 (West 1986 &
Supp. 2000). We deny the petition.
I.
Raymond Burek worked in the coal mines for almost ten years. He
began smoking at age thirteen and stopped smoking just two years
before his death. Plagued by respiratory difficulties during the last
years of his life, Mr. Burek died on April 21, 1997, at the age of sixty-
seven. His attending physician listed pulmonary arrest as the cause of
death. Believing Mr. Burek’s death to have been caused or hastened
by pneumoconiosis, Mrs. Burek timely filed an application for survi-
vor’s benefits under the Act. See 20 C.F.R. § 718.205(a) (2000)
("Benefits are provided to eligible survivors of a miner whose death
was due to pneumoconiosis."). A claims examiner determined that
Mrs. Burek was entitled to benefits, and Valley Camp Coal Company
("VCCC"), the responsible operator under the Act, requested a hear-
ing. A hearing was held on October 9, 1998, before the ALJ and the
parties presented testimony and exhibits. The ALJ concluded that
Mrs. Burek failed to establish that pneumoconiosis caused, contrib-
uted to, or hastened her husband’s death. Accordingly, benefits were
denied. The Board affirmed the ALJ’s decision and this petition for
review followed.
BUREK v. VALLEY CAMP COAL CO. 3
II.
We review a decision awarding or denying benefits to determine
whether the factual findings of the ALJ are supported by substantial
evidence. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th
Cir. 1998). "Substantial evidence is such relevant evidence as a rea-
sonable mind might accept as adequate to support a conclusion."
NLRB v. Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262, 1269 (4th
Cir. 1994) (internal quotation marks omitted). Though substantial evi-
dence must certainly amount to more than a scintilla, it may also be
less than a preponderance. See AT&T Wireless PCS, Inc. v. City
Council, 155 F.3d 423, 430 (4th Cir. 1998). In assessing whether the
findings are supported by substantial evidence, we must ascertain
whether the ALJ has examined all relevant evidence and offered a
sufficient explanation for his "rationale in crediting certain evidence."
Milburn, 138 F.3d at 528. The legal conclusions of the ALJ and
Board are reviewed "de novo to determine whether they are rational
and consistent with applicable law." Id.Mrs. Burek is entitled to benefits under the Act if she demonstrates
that (1) her husband suffered from pneumoconiosis, (2) the pneumo-
coniosis arose at least in part out of coal mine employment, and (3)
her husband’s death was due to pneumoconiosis. See United States
Steel Mining Co. v. Director, OWCP, 187 F.3d 384, 388 (4th Cir.
1999). The death of a coal miner is considered "due to" pneumoconio-
sis if pneumoconiosis was a "substantially contributing cause" of
death. 20 C.F.R. §§ 718.205(c)(2), (4) (2000). A claimant seeking
benefits may establish this causal connection by demonstrating that
pneumoconiosis "actually hastened the miner’s death." Shuff v. Cedar
Coal Co., 967 F.2d 977, 979-80 (4th Cir. 1992). The parties have stip-
ulated that Mr. Burek suffered from pneumoconiosis that arose in part
from his employment at VCCC. Thus, the sole issue in this case is
whether sufficient evidence supported the finding that pneumoconio-
sis did not substantially contribute to Mr. Burek’s death.
In reaching his decision, the ALJ considered a number of exhibits
submitted by Mrs. Burek. First, the ALJ considered Mr. Burek’s death
certificate, signed by his treating physician Dr. Attila Lenkey, which
listed the cause of death as pulmonary arrest. Second, the judge con-
sidered a brief letter prepared by Dr. Lenkey which stated that Mr.
4 BUREK v. VALLEY CAMP COAL CO.
Burek’s death "in part, was attributable to his previous lung disease,
much of which was acquired during his many years working under-
ground." Claimant’s Ex. 3. Third, the judge considered a one-page
consultative case review by Dr. Dominic Gaziano. On the form, Dr.
Gaziano checked "yes" in response to the question of whether pneu-
moconiosis was a significantly contributing factor in Mr. Burek’s
death. Claimant’s Ex. 4. Dr. Gaziano then briefly explained that his
opinion was based on the death certificate and Dr. Lenkey’s brief let-
ter.
The ALJ also considered the deposition and report of Dr. Robert
B. Altmeyer, a consultant for VCCC. The basis of Dr. Altmeyer’s
opinion was his examination of Mr. Burek in 1994 and his review of
the relevant medical records. Though Dr. Altmeyer did not believe
that Mr. Burek had pneumoconiosis in part because x-rays revealed
that irregular opacities occurred in the lower lung zone rather than the
upper lung, he nonetheless assumed Mr. Burek suffered from pneu-
moconiosis in rendering an opinion. Based on Mr. Burek’s "reduction
in diffusing capacity and severe airways obstruction," coupled with a
physical examination of Mr. Burek and pulmonary function studies,
Dr. Altmeyer opined that "[t]his indicates that [Mr. Burek] did have
severe cigarette-induced chronic obstructive pulmonary disease."
Director’s Ex. 11. Dr. Altmeyer further offered that "[t]here is nothing
either by chest x-ray, physical examination or pulmonary function
studies to suggest that [Mr. Burek’s] death could have been caused by
or aggravated by pneumoconiosis." Director’s Ex. 11.
In response to Dr. Altmeyer’s report and testimony, Mrs. Burek
submitted the report of Dr. Warfield Garson. Dr. Garson challenged
Dr. Altmeyer’s belief that Mr. Burek was not suffering from pneumo-
coniosis. However, Dr. Garson offered no opinion on the factors lead-
ing to or contributing to Mr. Burek’s death. Hence, the ALJ dismissed
Dr. Garson’s report as irrelevant.
Based on proffered testimony and reports, the ALJ concluded that
pneumoconiosis did not substantially contribute to Mr. Burek’s death.
The ALJ accorded much weight to the testimony and opinion of Dr.
Altmeyer, observing that Dr. Altmeyer’s opinion was "well rea-
soned." J.A. 11. Dr. Lenkey’s report, according to the ALJ, was con-
clusory "and [Dr. Lenkey] failed to offer specific documentation for
BUREK v. VALLEY CAMP COAL CO. 5
his conclusion." J.A. 11. Dr. Gaziano’s opinion was not especially
probative either, in the ALJ’s view, because it was based on Dr.
Lenkey’s work and the death certificate.
We find that substantial evidence supports the ALJ’s denial of ben-
efits and that the ALJ adequately explained the reasons for his ruling.
Like the ALJ, we agree that Dr. Altmeyer’s report is much more
detailed and better reasoned than the other exhibits, and that Dr. Alt-
meyer offers compelling reasons why Mr. Burek’s death was not
caused or hastened by pneumoconiosis. Therefore, it was entirely
proper for the ALJ to accord it much weight.
Contending that Dr. Lenkey’s report should have been given more
weight than Dr. Altmeyer’s, Mrs. Burek claims that the ALJ erred. In
Mrs. Burek’s view, the recency of Dr. Lenkey’s examination of her
husband and Dr. Lenkey’s status as treating physician should have
been accorded great weight. While the opinions of treating physicians
deserve special consideration, an ALJ must not "mechanistically cred-
it[ ], to the exclusion of all other testimony, the testimony from [treat-
ing] physicians." Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,
441 (4th Cir. 1997). Moreover, recency of examination simply cannot
overcome the absence of specific and cogent medical reasoning. See
Bill Branch Coal Corp. v. Sparks, 213 F.3d 186, 192 (4th Cir. 2000)
(holding that an expert opinion that fails to offer some reasoning to
support the conclusion that pneumoconiosis hastened death is insuffi-
cient to support an award of benefits). In the present case, Dr.
Lenkey’s opinion on the role pneumoconiosis played in Mr. Burek’s
death is obfuscatory at best—the terse and vague language used sim-
ply does not explain why or how pneumoconiosis contributed to or
hastened Mr. Burek’s demise. Accordingly, the ALJ did not err in
giving the report less weight than Dr. Altmeyer’s cogent analysis. See
Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997)
(stating that an ALJ hearing a black lung claim has the power to make
credibility determinations and weigh evidence).
Mrs. Burek also argues that the ALJ did not examine all relevant
evidence because he concluded that Dr. Garson’s opinion was irrele-
vant. See Sparks, 213 F.3d at 190 (observing "that ALJs have a duty
to analyze all of the relevant evidence") (internal quotation marks
omitted). The only opinion offered by Dr. Garson was that Mr. Burek
6 BUREK v. VALLEY CAMP COAL CO.
did indeed suffer from pneumoconiosis. The parties stipulated to this
fact and therefore Dr. Garson’s report was irrelevant to the disputed
question in this case. Similarly, Mrs. Burek contends that the ALJ
impermissibly ignored the opinions of various physicians who treated
Mr. Burek in the emergency room of the Ohio Valley Medical Center
in the weeks prior to his death. While the records indicate that these
physicians assumed Mr. Burek had pneumoconiosis and suffered
from severe lung problems, the records offer no opinions on the cause
of death. Hence, the ALJ did not err in refusing to consider these
opinions.
Lastly, Mrs. Burek argues that Dr. Altmeyer is hostile to the Act
and therefore the ALJ should have discounted Dr. Altmeyer’s opin-
ion. Under our case law, "a physician’s opinion may be discredited
when the physician bases his or her conclusion on a premise funda-
mentally at odds with the statutory and regulatory scheme." Lane v.
Union Carbide Corp., 105 F.3d 166, 173 (4th Cir. 1997) (internal
quotation marks omitted). The fact that Dr. Altmeyer did not believe
Mr. Burek suffered from pneumoconiosis, but nonetheless assumed
Mr. Burek did in rendering an opinion, cannot establish hostility. The
use of such an assumption, which was stipulated to by the parties, is
appropriate. See Tyger Constr. Co. v. Pensacola Constr. Co., 29 F.3d
137, 142 (4th Cir. 1994) (observing that an expert opinion based on
an assumption that is supported by the record is admissible). More-
over, the fact Dr. Altmeyer refused at deposition to disclose what per-
centage of his income is derived from federal black lung claims does
not establish hostility. Dr. Altmeyer estimated that he typically earns
$13,000 per year from black lung cases but declined to disclose his
annual income. Counsel never moved to compel an answer, and we
cannot conclude that Dr. Altmeyer’s privacy concerns must be
equated with hostility.
III.
For the foregoing reasons, we deny the petition for review.
PETITION DENIED
THORNBURG, District Judge, dissenting:
I respectfully dissent.
BUREK v. VALLEY CAMP COAL CO. 7
The issue is whether substantial evidence supports the decision of
the Administrative Law Judge (ALJ) that (1) the decedent’s death was
not due to pneumoconiosis1; (2) pneumoconiosis was not a substan-
tially contributing cause of his death; (3) complications of pneumoco-
niosis did not cause the decedent’s death; or (4) the decedent did not
have complicated pneumoconiosis.
Appellant’s decedent, Raymond, was born in 1929. From July 9,
1968, to March 27, 1978, he worked as a coal miner for Valley Camp
Coal Company. In July 1996, he was awarded black lung benefits and
he died the following April 21, 1997. Appellant filed a claim for sur-
vivors’ benefits.
At the benefits hearing, the parties stipulated the decedent had
pneumoconiosis arising out of his employment as a coal miner. Thus,
the only issue was whether his death was caused by, contributed to,
or hastened by that condition. Section 718.205(a) of 20 C.F.R. pro-
vides for payment of benefits to eligible survivors of a miner whose
death was due to pneumoconiosis. Section 718.205(c) provides:
For the purpose of adjudicating survivors’ claims filed on or
after January 1, 1982, death will be considered to be due to
pneumoconiosis if any of the following criteria is 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 of pneumoconiosis, . . . (4)
[s]urvivors are not eligible for benefits where the miner’s
death . . . was . . . not related to pneumoconiosis, unless the
evidence establishes that pneumoconiosis was a substan-
tially contributing cause of death.
During a hospital stay in November 1996, decedent’s medical his-
tory of chronic obstructive pulmonary disease (COPD) for the past ten
years was noted as well as pneumoconiosis. Although he had been a
1
Pneumoconiosis, commonly known as black lung disease, is a chronic
dust disease of the lungs, including respiratory and pulmonary impair-
ments arising therefrom. 20 C.F.R. § 718.201.
8 BUREK v. VALLEY CAMP COAL CO.
half-a-pack per day smoker for 43 years, decedent had finally quit in
1995. In addition to these chronic ailments, the decedent also suffered
from hypertension and non-insulin dependent diabetes.
Decedent was readmitted to the hospital in March and early April
1997. He returned later that month and he died on April 21, 1997. The
cause of death listed on the death certificate was pulmonary arrest and
no autopsy was performed.
However, decedent’s treating physician, Dr. Lenkey, opined in a
report dated January 14, 1998, that the cause of death was as follows:
It is my opinion that Mr. Bureck’s lung disease was, in
part[,] due to his having worked in the coal mines under-
ground for many years. Based on his pulmonary physiologic
impairment, which was 100%, approximately 50% of that is
and should be attributable to his occupational related lung
disease because of his long term exposure to coal dust dur-
ing a time period when many safety provisions were not
taken underground. It is my best informed and educated
opinion that Mr. Bureck’s death, in part, was attributable to
his previous lung disease, much of which was acquired dur-
ing his many years working underground.
In February 1998, Dr. Gaziano opined that pneumoconiosis was a
significant contributing factor in Raymond’s death. In notes to Attor-
ney J. Marty Mazezka on November 30, 1992, Dr. Gaziano stated:
"He is fully impaired from the irreversible [pulmonary] condition. He
is totally impaired due to CWP." These notes were preceded by a
detailed examination report dated May 31, 1992, and eight pages of
chart and test results.
Another medical consultative case review was conducted by Dr.
Garson in September 1998. He concluded that the decedent’s past
employment as a coal miner had led to two respiratory diseases: pneu-
moconiosis and COPD. He also acknowledged that cigarette use con-
tributed to these diseases.
The Respondent’s expert, Dr. Altmeyer, examined the decedent in
BUREK v. VALLEY CAMP COAL CO. 9
October 1994 in connection with his claim for black lung benefits.2
Based on his 1994 examination and a review of the medical records,
Dr. Altmeyer opined in February 1998 that the cause of the dece-
dent’s death was COPD, not pneumoconiosis. Indeed, he acknowl-
edged that if the decedent had suffered from "simple"
pneumoconiosis, it in no manner contributed to his death. Instead, Dr.
Altmeyer concluded his death was caused by severe airway obstruc-
tion consistent with cigarette-induced lung disease. He also opined
that pneumoconiosis had not hastened decedent’s death because he
was suffering from severe heart disease and congestive heart failure.
See Report of Robert B. Altmeyer, M.D., dated February 25, 1998.
Our Court has previously observed that "[COPD] . . . is encom-
passed within the definition of pneumoconiosis for purposes of enti-
tlement to Black Lung benefits." Warth v. Southern Ohio Coal Co.,
60 F.3d 173, 175 (4th Cir. 1995). We have also held that where a doc-
tor’s "stated credo is that simple pneumoconiosis does not ‘as a rule’
cause total disability . . . it is perfectly reasonable to discredit [that]
expert’s conclusion . . . [because] that expert bases his conclusion on
a premise fundamentally at odds with the statutory and regulatory
scheme." Thorn v. Itmann Coal Co., 3 F.3d 713, 718-19 (4th Cir.
1993). Dr. Altmeyer’s adamant denial that decedent had pneumoconi-
osis, despite the parties’ stipulation that he did, renders his opinion
based on a "premise fundamentally at odds with the statutory and reg-
ulatory scheme." Id. Moreover, it shows a clear bias against the
claimant. See also Piney Mountain Coal Co. v. Mays, 176 F.3d 753,
760 n.7 (4th Cir. 1999) (doctor’s testimony that "simple pneumoconi-
osis cannot cause, substantially contribute to, or hasten death"
amounts to a belief that no one is entitled to benefits under the Black
Lung Act). Cf. Dr. Altmeyer’s Report, supra ("There is no evidence
this man had pneumoconiosis."); Deposition of Robert B. Altmeyer,
M.D., at 66 ("I have never seen simple coal-worker’s pneumoconiosis
significantly contribute to death." . . . "But in general, you don’t
believe that a simple coal-worker’s pneumoconiosis can be suffi-
ciently impairing to make a death significantly related to it?" . . . "A
simple coal-worker’s pneumoconiosis, in general, I agree with that
2
Decedent, who applied for black lung benefits as early as 1992, was
awarded benefits in July 1996 despite Dr. Altmeyer’s opinion that he did
not have pneumoconiosis.
10 BUREK v. VALLEY CAMP COAL CO.
statement."). Disregarding the stipulation and concluding the decedent
did not have the disease calls into question the value of the doctor’s
entire testimony. Grigg v. Director, OWCP, 28 F.3d 416, 419 (4th
Cir. 1994) (holding that the opinion disregarding disability causation
of a doctor who erroneously fails to diagnose pneumoconiosis is not
worthy of enough weight to rebut the interim presumption pursuant
to regulations).
As noted above, the conclusion that decedent was not a pneumoco-
niosis victim was not a new position for Dr. Altmeyer. In 1996 when
ALJ Tierney awarded benefits contrary to Dr. Altmeyer’s findings,
the order read in part as follows:
There are three physicians who found that the claimant has
coal workers’ pneumoconiosis as a result of coal mine
employment. All agree that the disease substantially contrib-
utes to his disability.
The opinions of Drs. Lenkey, Gaziano and Del Vecchio are
very similar. All found pneumoconiosis in spite of negative
x-rays. All found the claimant’s coal workers’ pneumoconi-
osis to be a significant contributing factor to his disability.
All considered the claimant’s long smoking history.
Only Dr. Altmeyer disagrees. He says that the claimant’s
condition is significantly related to smoking. He points to
the claimant[’s] long standing smoking history.
The majority of well-reasoned medical opinions from the
doctors covering the period 1986 through 1995 is that the
claimant has pneumoconiosis caused by coal mine employ-
ment and that it is disabling. Dr. Altmeyer’s sole dissenting
opinion cannot be given controlling weight.
App., at 3. The final order denying death benefits, which gave rise to
this appeal, completely ignores the factual basis for the previous
determination of disability and entitlement. ALJ Lesniak discredited
the opinions of Drs. Lenkey and Gaziano (two of the three doctors
relied on in the quoted opinion) as well as a third doctor, Dr. Warfield
BUREK v. VALLEY CAMP COAL CO. 11
Garson, all giving opinions contrary to that of Dr. Altmeyer. It is
passing strange that ALJ Lesniak is impressed by the fact that "Dr.
Altmeyer is board certified in pulmonary and internal medicine," but
makes no mention of the same board certification held by Dr. Lenkey.
Where the treating physician has the same credentials as an opposing
expert, it is arbitrary to dismiss his opinion without considering his
ten-year history of treatment of the decedent. Nor was the ALJ
impressed that Dr. Altmeyer had never found any miner disabled due
to coal worker’s pneumoconiosis. Altmeyer Deposition, at 80, 16.
Moreover, Dr. Altmeyer labored under several factual errors. He did
not know that decedent had quit smoking well before his death. Id.,
at 69. He thought the decedent’s exposure to coal dust was limited to
a six month period. And, he failed to note the decedent’s condition
of cor pulmonale (CP), a cardiovascular disease associated with pneu-
moconiosis as an end-stage complication. Mancia v. Director, OWCP,
130 F.3d 579, 585 (3rd Cir. 1997). Contrary to conclusions of three
other physicians, Dr. Altmeyer alone found no evidence "that this
man’s death was due to pneumoconiosis." See Altmeyer’s Report, at
3.
The ALJ’s reliance on one doctor’s opinion who denies the exis-
tence of the disease to which the parties stipulated and which was
found by every other doctor, is not a valid basis for benefits denial.
See Report of J. J. Del Vecchio, dated September 30, 1986, Director’s
Exhibit 19 (finding CWP, COPD, small airway disease and moderate
air trapping); Report of Michael B. Kovalick, dated March 26, 1997,
Director’s Exhibit 9 (finding decedent to have history of black lung
disease, emphysema and discharge diagnoses of acute hypercapneic
and hypoxemic respiratory failure). See also Milburn Colliery Co. v.
Hicks, 138 F.3d 524 (4th Cir. 1998) (finding error in ALJ’s failure to
examine all the relevant evidence and discounting physician qualifica-
tions).
Nor may a treating physician’s opinion be ignored.
While the [Board] is not bound by the opinion of a claim-
ant’s treating physician, that opinion is entitled to great
weight for it reflects an expert judgment based on a continu-
ing observation of the patient’s condition over a prolonged
period of time. Therefore, it may be disregarded only if
12 BUREK v. VALLEY CAMP COAL CO.
there is persuasive contradictory evidence. [W]e have also
ruled that the testimony of a non-examining physician can
be relied upon when it is consistent with the record.
Smith v. Schweiker, 795 F.2d 343, 345-46 (4th Cir. 1986) (citations
omitted). Appellant has amply supported her entitlement to benefits
by substantial evidence and should be granted same.
Claimants need not prove entitlement beyond a doubt, but
rather by a simple preponderance of the evidence. Assess-
ment of the complexities of human health and disease defies
death-and-taxes confidence. . . . [Dr. Lenkey] said that pneu-
moconiosis "could be considered a complicating factor in
the demise of Mr. [Bureck]" . . . . In the full context of his
report and of the gross observations he alone [as the treating
physician] made, the reasonableness of such a reading is
even clearer. [Dr. Lenkey] was plainly impressed by both
the severity of [Bureck’s] pneumoconiosis and by the respi-
ratory failure that ushered [Bureck] through death’s door.
Piney Mountain Coal Co., 176 F.3d at 763.
For the foregoing reasons, I conclude that the ALJ’s decision is not
supported by substantial evidence. I would, therefore, reverse and
remand for entry of a final order requiring payment of benefits to
Appellant; or, in the alternative, reverse and remand directing the
Board to remand to a new ALJ with instructions to review the record
and, if deemed necessary, to hold an additional hearing to determine
whether Appellant is entitled to benefits.