Old Ben Coal Company v. Mary E. Prewitt, and Director, Office of Workers' Compensation Programs, United States Department of Labor , 755 F.2d 588 ( 1985 )

POSNER, Circuit Judge.

The Old Ben Coal Company asks us to set aside an order of the Benefits Review Board of the Department of Labor, directing the company to pay benefits to Mary Prewitt, the widow of a coal miner, under the Black Lung Benefits Act, which is Title IV of the Federal Coal Mine Health and Safety Act, as amended, 30 U.S.C. §§ 901-960. An administrative law judge denied benefits, but his decision was reversed by the Board as unsupported by substantial evidence; and the first question we must consider concerns our standard of judicial review when the Board has reversed the administrative law judge on that ground.

The Black Lung Benefits Act, in 30 U.S.C. § 932(a), incorporates by reference the judicial review provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 921(c); and although section 921(c), in authorizing judicial review, does not indicate what the standard of review is, there is an established standard in black lung cases in this circuit, as well as every other circuit that has considered the matter. It is whether the court of appeals believes that the administrative law judge’s decision was supported by substantial evidence; if it was, then the Benefits Review Board’s decision reversing the administrative law judge must itself be reversed, even if that decision could also be said to be supported by substantial evidence. See, e.g., Consolidation Coal Co. v. Chubb, 741 F.2d 968, 971 (7th Cir.1984); Kalaris v. Donovan, 697 F.2d 376, 382-83 (D.C.Cir.1983); Walker v. Universal Terminal & Stevedoring Corp., 645 F.2d 170, 172-73 (3d Cir.1981). The Fourth Circuit once rejected this standard, believing that the issue should be whether the Benefit Review Board’s decision, not the administrative law judge’s decision, is supported by substantial evidence; but it has now lined up with the other circuits. See, e.g., Wilson v. Benefits Review Board, 748 F.2d 198, 199 (4th Cir.1984).

Granted, the prevailing standard can be questioned on three grounds:

1. All the cases adopting it rely ultimately on a decision based on another and distinguishable system of judicial review, Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797, 799 (7th Cir.1977).

2. The statute governing judicial review of decisions of the Benefits Review Board does not suggest that the scope of review is as broad as our standard implies — in fact, as we have said, the statute is silent on the standard of review.

3. In cases under section 921(c) that do not involve black lung benefits, this court asks whether the administrative review board’s decision, not the administrative law judge’s decision, is supported by substantial evidence. See Strand v. Hansen Seaway Service, Ltd., 614 F.2d 572, 574 (7th Cir.1980).

Nevertheless we think Chubb was correctly decided. In the administrative process as usually conducted, the agency itself (corresponding to the Benefits Review Board in this case) exercises a power of plenary or de novo review of the administrative law judge’s factfindings. That is, the agency makes its own findings; and if they are supported by substantial evidence, we must uphold them. But in a black lung case, as in other cases to which the procedures of the Longshoremen’s and Harbor Workers’ Compensation Act apply, the Benefits Review Board does not have the power of de novo review of factfindings. The Act provides that “the findings of fact in the [administrative law judge’s] decision under review ... shall be conclusive if supported by substantial evidence in the record considered as a whole.” 33 U.S.C. § 921(b)(3); see also 20 C.F.R. § 802.301. Our decision in Strand relied on two Ninth Circuit decisions which had, as the Ninth Circuit later acknowledged, “overlooked the actual division of functions between the administrative law judge and the [Benefits Review] Board.” Bumble Bee Seafoods v. Director, Office of Workers’ Compensation Programs, 629 F.2d 1327, 1329 (9th Cir.1980). When we review a decision by the Benefits Review Board reversing an administrative law judge’s decision as unsupported by substantial evidence, our task is to decide whether the Board applied the substantial-evidence rule correctly — which means, decide whether the administrative law judge’s factfindings are supported by substantial evidence. The Board’s decision is highly pertinent to this question; it may explain convincingly where the administrative law judge went wrong. But the decision is not itself a source of findings to which we are required or permitted to defer. The findings are made by the administrative law judge, and if they are supported by substantial evidence the Board may not reject them and we must reverse the Board if it does. We need not consider what if any vitality our decision in Strand retains in cases that do not involve black lung benefits.

Although a majority of this panel (Chief Judge Cummings and myself) reaffirms the Chubb standard for the reasons stated in this opinion, a different majority (Chief Judge Cummings and Judge Cudahy) believes that the standard requires that the administrative law judge’s decision be reversed and the decision of the Benefits Review Board affirmed, for reasons stated in Judge Cudahy’s opinion. I disagree, for the reasons that follow.

There is a statutory presumption, which Prewitt’s widow is entitled to invoke, that a coal miner who died before March 1977 after having worked for more than 25 years in a coal mine was at the time of his death at least partly disabled as a result of black lung disease and is therefore entitled to benefits. See 30 U.S.C. § 921(c)(5); 20 C.F.R. § 727.204(c). But the administrative law judge found that this presumption was rebutted — that the coal company had proved that Prewitt did not have black lung disease at all, or if he did have it was not even partially disabled by it, see 20 C.F.R. § 727.204(c) — and if either finding is supported by substantial evidence the Benefits Review Board must be reversed.

Prewitt died of heart disease, from which he had long suffered, and because of which he had spent a lot of time in hospitals and been examined many times in the years leading up to his death. Despite much opportunity in these examinations for doctors to diagnose possibly disabling black lung disease, the administrative law judge found on evidence he considered cumulatively persuasive that Prewitt had never been found by doctors to have disabling black lung disease. An X-ray taken shortly before his death was negative for black lung disease. An arterial gas study showed some breathing problems but not enough to meet the standard for disability under the black lung program. Two hospital discharge reports failed to mention black lung disease — as did Prewitt’s wife, in the following exchange:

Q. Other than those two heart attacks that you told us about, are you aware of any other health problems that Mr. Prewitt had?

A. Let me think — his heart did steadily get worse. It would pertain to this heart. They called it heart failure.

Although this evidence is neither conclusive (Mrs. Prewitt is not a doctor) nor entirely free from ambiguity, it was for the administrative law judge, who had the considerable advantage over both the Benefits Review Board and us of having actually heard her testify, to interpret and weigh her testimony; we who have only the typed transcript before us cannot do that.

Despite all this, Prewitt may in fact have had black lung disease. A doctor who treated Prewitt reported a year before Prewitt’s death that Prewitt had black lung disease, and referred him to a respiratory specialist who described him as suffering from “chronic obstructive pulmonary disease,” which, whether or not technically black lung disease (pneumoconiosis), fits the statutory definition, which is broader than the medical. See 30 U.S.C. § 902(b); 20 C.F.R. § 727.202. And Prewitt’s personal physician attributed his death to heart disease “complicated by pneumoconiosis.” I am willing to grant, at least for the sake of argument, that there is evidence to invalidate the administrative law judge’s finding that Prewitt did not have black lung disease. But it still is necessary to consider the finding that Prewitt was not disabled, even partially, by that disease when he died; for as pointed out earlier, this finding is enough to show that Prewitt is not entitled to black lung benefits.

True, if the administrative law judge’s finding of no disability were dependent on his finding that Prewitt did not have black lung disease, any deficiency in the latter finding would infect the former. But the administrative law judge looked at the disability issue separately and made a finding, which is binding on the Benefits Review Board and on us if it is supported by substantial evidence on the record considered as a whole, that death from heart disease had overtaken Prewitt before black lung disease (if any) had progressed to the point of disabling him. No single item of evidence on which the administrative law judge relied in reaching this conclusion was conclusive (some, if standing alone, would have been insufficient as a matter of law to refute disability due to black lung disease, see 20 C.F.R. § 727.204(d)), but the administrative law judge was required to consider the evidence as a whole, and having done so he concluded that Prewitt had not been disabled by black lung disease when he died. The Benefits Review Board’s effort to pick away at this conclusion is unconvincing. The medical reports on which the administrative law judge relied in concluding that Prewitt had not had black lung disease at all, while perhaps inconclusive on that point, were significant evidence that the disease had not progressed to the point of disabling Prewitt beyond what heart disease had already done to him; and the medical evidence that indicated that Prewitt may in fact have had black lung disease is not inconsistent with the conclusion that he was not disabled, in whole or part, by it when he died. If Prewitt had been disabled to any extent by black lung disease, some of the medical reports would have so indicated — or so at least the administrative law judge was entitled to conclude.

If I were the trier of fact I might reach a different conclusion from the administrative law judge, but the function of this court in a black lung case turning on a question of fact is exhausted when we determine that the administrative law judge’s factfinding is supported by substantial evidence on the record as a whole; and I do not see how it is possible to conclude that it was not. It is true that the legislative history of the black lung benefits law states that “in the absence of definitive medical conclusions there is a clear need to resolve doubts in favor of the disabled miner or his survivors.” S.Rep. No. 743, 92d Cong., 2d Sess. 11 (1972), U.S.Code Cong. & Admin.News 1972, 2305, 2315. But of course the miner must be disabled *(by black lung disease); and it is for the administrative law judge rather than for us to make this determination.

Nevertheless, since my brethren disagree with me that the administrative law judge’s finding was supported by substantial evidence, the judgment of the Benefits Review Board is

Affirmed.