Bertholf v. OWCP

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 3 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

DOROTHY MAYNARD BERTHOLF,
widow of HERMAN MAYNARD,

Petitioner,
No. 96-9522
v. (Petition for Review)
(No. 92-BLA-1610)
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT
OF LABOR,

Respondent.

ORDER AND JUDGMENT *

Before BRORBY, LOGAN, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
 Petitioner Dorothy Maynard Bertholf, the widow of Herman Maynard, seeks

review of a Benefits Review Board (Board) decision affirming the denial by the

administrative law judge (ALJ) of her claim for survivor’s benefits under the

Black Lung Benefits Act, 30 U.S.C. §§ 901-945. Decedent, a coal miner for

thirty-six years, died of coronary artery disease on January 19, 1991. The ALJ

determined that, although petitioner met her burden of establishing that the

decedent suffered from pneumoconiosis and that the pneumoconiosis resulted

from his work in coal mines, petitioner failed to establish that the decedent’s

death was “due to pneumoconiosis,” as required by 30 U.S.C. § 901(a) for an

award of benefits. The Board affirmed the denial of benefits, and this appeal

followed.

On appeal, petitioner argues that the ALJ (1) did not apply the correct legal

standard in evaluating her claim and (2) erred in discounting the opinion of Dr.

Todd Grey, the autopsy prosector, that pneumoconiosis contributed to the dece-

dent’s death.

We review the Board’s order to determine whether the Board correctly

concluded that the ALJ’s decision was supported by substantial evidence and not

contrary to the law. Hansen v. Director, OWCP, 984 F.2d 364, 368 (10th Cir.

1993). “In determining whether substantial evidence exists, the court cannot

reweigh the evidence, but may only inquire into the existence of evidence to

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support the trier of fact.” Id. (quotation omitted).

We turn first to the legal standard at issue. For claims filed on or after

January 1, 1982, “death will be considered due to pneumoconiosis . . . [w]here

pneumoconiosis was a substantially contributing cause or factor leading to a

miner’s death or where the death was caused by complications of pneumoconio-

sis.” 20 C.F.R. § 718.205(c)(2). When “the principal cause of death was a

medical condition not related to pneumoconiosis,” a survivor will not be entitled

to benefits, “unless the evidence establishes that pneumoconiosis was a substan-

tially contributing cause of death.” Id. § 718.205(c)(4). In an opinion issued

after the decisions of the ALJ and the Board here, we joined several other circuits

in interpreting the regulatory language, “a substantially contributing cause or

factor leading to the miner’s death,” to mean “hastening death to any degree.”

Northern Coal Co. v. Director, OWCP, 100 F.3d 871, 874 (10th Cir. 1996).

The Director concedes that neither the ALJ nor the Board applied the

“hastening death” standard in evaluating petitioner’s claim. Petitioner contends

that this change in the articulation of the legal standard requires us to remand the

case for reevaluation by the ALJ. The Director, however, argues that the change

in the legal standard does not affect the denial of benefits here, because the denial

was based on the ALJ’s determination that the only evidence supporting peti-

tioner’s claim--Dr. Grey’s opinion--was conclusory. We agree with the Director

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that adoption of the “hastening death to any degree” standard does not require a

remand.

In denying benefits, the ALJ found that Dr. Grey’s autopsy report was

insufficient to meet petitioner’s burden of establishing death due to pneumoconio-

sis. The ALJ discounted Dr. Grey’s opinion that the decedent’s pneumoconiosis

contributed to his death because Dr. Grey “failed to note . . . any rationale for this

finding. Such a conclusion, without any supporting documentation or explana-

tion, is insufficient to satisfy the requirements of the regulations.” Admin. R. at

61-2. The ALJ also noted that the record contained no corroborating evidence

that pneumoconiosis contributed to the decedent’s death. The Board affirmed the

denial of benefits, concluding that, because an ALJ may “accord little weight to

an opinion he finds to be conclusory or unexplained, or unsupported by any

documentation,” the ALJ did not err in finding that Dr. Grey’s autopsy report was

insufficient to establish that decedent’s death was due to pneumoconiosis. Id. at

17.

The autopsy report contains the following description of the decedent’s

lungs on gross examination:

The pleural surfaces are slightly wrinkled and remarkable for moder-
ate to severe anthracosis. The pleural surfaces are also remarkable
for scattered small tan-white nodules measuring to 0.2 cm. Examina-
tion of the hilar lymph nodes reveals moderate anthracosis without
calcification. Sectioning of the lungs reveals congestion and em-
balming artefacts with slightly increased uniform firmness through-

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 out all lobes.

Id., Director’s Ex. No. 10, Report of Autopsy, at 3. The autopsy report does not

include a description of any microscopic examination of the decedent’s lungs,

although the record suggests that Dr. Grey performed a microscopic inspection. 1

Two pathologic diagnoses are listed in the autopsy report, the second of

which reads as follows: “II. Mild-to-moderate Miner’s Pneumoconiosis.

A. Moderate-to-severe pulmonary anthracosis. B. Pleural nodules consistent with

mild silicosis.” Id. at 4. The report then concludes with the following opinion

from Dr. Grey:

This 65-year-old White male, Herman Maynard, died as a
result of coronary artery disease secondary to generalized atheroscle-
rosis (hardening of the arteries). Contributory to death was mild-to-
moderate Miner’s Pneumoconiosis. Investigation indicates the
decedent collapsed after complaining of chest pain. The decedent
had a long occupational history of mine work.

Id. As the ALJ correctly noted, the autopsy report does not contain any explana-

tion for Dr. Grey’s conclusion that the decedent’s pneumoconiosis contributed to

his death.

Nor does Dr. Grey’s subsequent correspondence cast any light on his

reasoning. In a letter to the Department of Labor, dated August 29, 1991, Dr.

1
In August 1991, Dr. Grey sent a letter to the Department of Labor stating
that he was unable to provide the agency with either slides or tissue samples from
the decedent’s lungs, because he lost them when he moved his office several
months earlier.

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Grey stated: “I conducted an autopsy and found that Mr. Maynard died of

coronary artery disease. However, I found mild to moderate lung disease consis-

tent with silicosis. I certified that the lung condition was a contributory factor in

Mr. Maynard’s death.” Id., Letter of Aug. 29, 1991, at 1. Two months later, in a

letter to petitioner’s attorney, Dr. Grey stated:

I found that Mr. Maynard had severe coronary artery disease and
certified that this was the underlying cause of death. However, I also
found evidence of mild to moderate pneumoconiosis. I certified that
this was a significant contributory factor in Mr. Maynard’s death. . . .
While I can not say the cause of his death was solely the result of
damage to his lungs from his many years of working in the mines, I
do believe that it played a role in his demise. If I did not believe this
to be the case, I would not have listed his lung disease as a signifi-
cant contributory factor on the death certificate.

Id., Director’s Ex. No. 20 at 2.

In determining whether substantial evidence supports the ALJ’s determina-

tion that petitioner did not meet her burden of establishing that the decedent’s

death was due to pneumoconiosis, we must keep in mind that “[t]he ALJ is not

bound to accept the opinion or theory of any given physician, but may weigh the

medical evidence and draw his own inferences. We may not set aside an infer-

ence because we find the opposite one more reasonable or because we question its

factual basis.” American Coal Co. v. Benefits Review Bd., 738 F.2d 387, 391

(10th Cir. 1984). Further, “[a]n ALJ may disregard a medical opinion that does

not adequately explain the basis for its conclusion.” Risher v. OWCP, 940 F.2d

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327, 331 (8th Cir. 1991). Based upon our review of the record, we conclude that

the ALJ acted within his discretion in disregarding Dr. Grey’s opinion about the

role pneumoconiosis played in the decedent’s death. Dr. Grey’s own findings

reflect only mild to moderate lung disease, the other record evidence does not

suggest that the decedent had a significant lung impairment, and Dr. Grey

provided no explanation for his conclusion that pneumoconiosis contributed to the

decedent’s death.

As the Director points out in his brief, if petitioner can obtain another

opinion from Dr. Grey adequately explaining and documenting his conclusion that

pneumoconiosis contributed to the decedent’s death, petitioner can submit the

new opinion to the Department of Labor in support of a request for modification.

See 33 U.S.C. § 922, as incorporated by 30 U.S.C. § 932(a); 20 C.F.R. § 725.310;

Lango v. Director, OWCP, 104 F.3d 573, 578 (3d Cir. 1997). On the present

record, however, we cannot say that the ALJ erred in denying petitioner survivor

benefits.

AFFIRMED.

Entered for the Court

James K. Logan
Circuit Judge

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