Roberts v. WV CWP Fund

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHIRLEY J. ROBERTS, Widow of
Clyde E. Roberts,
Petitioner,

v.
No. 95-1113
WEST VIRGINIA C.W.P. FUND;
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(94-2285-BLA)

Argued: December 7, 1995

Decided: January 12, 1996

Before HALL and HAMILTON, Circuit Judges, and
THORNBURG, United States District Judge for the Western
District of North Carolina, sitting by designation.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: S.F. Raymond Smith, RUNDLE & RUNDLE, L.C.,
Pineville, West Virginia, for Petitioner. Konstantine Keian Weld,
Assistant Attorney General, Charleston, West Virginia, for Respon-
dents. ON BRIEF: Darrell V. McGraw, Jr., Attorney General,
Charleston, West Virginia, for Respondent Fund.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Shirley Roberts, the widow of Clyde Roberts, petitions for review
of the denial of her husband's claim for benefits under the Black Lung
Benefits Act, 30 U.S.C. §§ 901 et seq. Because the finding upon
which the Benefits Review Board (BRB) upheld the denial is not sup-
ported by substantial evidence, we remand the claim for reconsidera-
tion.

I.

Clyde Roberts worked for at least 18 years in the nation's coal
mines, and he smoked cigarettes for 30 years. He had a heart attack
in 1985, and he did not work thereafter. In January, 1990, he filed this
claim for black lung benefits.

On February 16, 1990, Roberts was examined by Dr. C. P.
Vasudevan. Pulmonary function studies and a resting arterial blood
gas test were performed. The pulmonary function test results were
qualifying under the regulatory criteria at 20 C.F.R. Part 718, App. B.
Roberts' blood gas test was not qualifying, though it was not entirely
normal; Dr. Vasudevan interpreted it as showing moderate hypox-
emia. On the orders of Roberts' treating physician, a blood gas fol-
lowing exercise was not performed.

Dr. Vasudevan diagnosed chronic obstructive pulmonary disease
(COPD), bronchial asthma, and arteriosclerotic heart disease. In his
opinion, these diseases were caused by cigarette smoking and had

2
produced a mild to moderate respiratory impairment, which was sixty
percent attributable to heart disease and forty percent to COPD.

An x-ray was also taken on February 16, 1990. Two readers inter-
preted it as negative for pneumoconiosis, but both noted a possible
carcinoma in Roberts' left lung. Roberts did indeed have cancer, and
it swiftly took its course. He died on April 6, 1991. His death certifi-
cate listed the immediate cause of death as "respiratory insufficiency"
due to metastatic lung cancer. His widow was substituted as claimant
on Roberts' pending claim.1

Though an ore tenus hearing on his claim had been scheduled for
July, 1991, the parties agreed to have the claim decided on the exist-
ing record. An administrative law judge (ALJ) evaluated the x-ray
evidence and concluded that the presence of pneumoconiosis had not
been shown.

Mrs. Roberts filed a timely request for modification of the denial
under 20 C.F.R. § 725.310(a). She submitted the autopsy report of Dr.
Felipe Pia, who made nine diagnoses, six of which involved Roberts'
lungs (adenocarcinoma with metastases to the heart and lymph nodes,
bilateral pulmonary embolisms, bronchopneumonia, bullous pulmo-
nary emphysema, bilateral pleural fibrous adhesions, and "minimal"
simple coal workers' pneumoconiosis).

The Department of Labor had the autopsy slides reviewed by Dr.
Richard Naeye of Pennsylvania State University. Dr. Naeye corrob-
orated Dr. Pia's report. He noted "mild" pneumoconiosis, "severe"
centrilobular emphysema, "very severe" interstitial fibrosis, "acute"
lobular pneumonia, and, apparently running out of adjectives, "strik-
ing" adenocarcinoma. Dr. Naeye, like Dr. Pia, felt that Roberts' pneu-
moconiosis was too mild to have caused any respiratory impairment.
Dr. Naeye also opined that centrilobular emphysema cannot be attri-
buted to occupational exposure to coal dust.
_________________________________________________________________

1 Mrs. Roberts did not file a claim for benefits as a surviving spouse.
See 20 C.F.R. § 725.201(a)(2)(ii).

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The ALJ found that Mrs. Roberts had not shown that her dead hus-
band had suffered from a totally disabling respiratory condition. The
BRB affirmed. Mrs. Roberts petitioned for review in this court.

II.

Our review of a final administrative order in a black lung case is
limited. We must affirm the order if it is in accordance with law and
is supported by substantial evidence. Amigo Smokeless Coal Co. v.
Director, OWCP, 642 F.2d 68 (4th Cir. 1981).

Substantive analysis of a black lung claim under the permanent
regulations is relatively straightforward. See 20 C.F.R. §§ 718.201-
204. First, does the miner have "pneumoconiosis" arising from coal
mine employment? If not, he loses. If yes, does the miner have a
totally disabling respiratory impairment? If not, he loses. If yes, is the
miner's pneumoconiosis a "contributing cause" of his respiratory dis-
ability? If not, he loses; if yes, he wins. So long as pneumoconiosis
is a "contributing" cause, it need not be a"significant" or "substantial"
cause.

We . . . find that the words "significant" or"substantial,"
while contributing little to the analysis of the causation
requirement, could be used to reconstruct an unnecessarily
high hurdle for claimants to clear. . . .

If the claimant would have been disabled to the same
degree and by the same time in life if he had never been a
miner, then benefits should not be awarded. On the other
hand, if his mining has contributed to his disability, then
benefits are appropriate.

Robinson v. Pickands Mather & Co., 914 F.2d 35, 38 (4th Cir. 1990).

The claimant's entitlement to benefits is measured by his physical
condition at the time of the hearing. Cooley v. Island Creek Coal Co.,
845 F.2d 622, 624 (6th Cir. 1988); Coffey v. Director, OWCP, 5 BLR
1-404 (1982). Where the claimant has died before the hearing, the
issue is whether he was disabled no later than the month preceding
his death. See 20 C.F.R. § 725.203(b)(1).

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The parties do not now dispute that Roberts cleared step one of the
permanent regulations' test: he did suffer from pneumoconiosis. Steps
two and three are in dispute.

III.

The ALJ found that Roberts did not have a totally disabling respi-
ratory condition. Rarely does a finding of fact fail the substantial evi-
dence test unless it was induced by an analytical error or
misapplication of the governing law. Such a misapplication occurred
here. The ALJ ignored the Robinson standard and instead conflated
the "total disability" and "contributing cause" inquiries into one.2 The
ALJ's analysis consists solely of attributing whatever impairment
Roberts had to various non-pneumoconiosis causes, most notably
heart disease and cigarette smoking. At this step of the Robinson
inquiry, respiratory impairment -- and not its etiology -- is the only
issue.3

There is no conceivable way to find that this miner did not have
a totally disabling respiratory condition. In fact, he had a totally
terminal respiratory condition.4 Pneumoconiosis may not have played
_________________________________________________________________
2 Neither the ALJ nor the BRB cited Robinson, and the BRB stated the
general standard of entitlement in a manner that contradicts it:
"[C]laimant must establish that the miner suffered from pneumoconiosis;
that the pneumoconiosis arose out [of] coal mine employment; and that
the pneumoconiosis was totally disabling." (emphasis added). The cen-
tral point of Robinson was to reject the notion that "pneumoconiosis"
itself must be severe enough to render the miner disabled.
3 In this regard, Robinson is quite similar to rebuttal analysis under the
interim regulations. See Sykes v. Director, OWCP, 812 F.2d 890, 893-
894 (4th Cir. 1987) (20 C.F.R. § 727.203(b)(2) addresses whole-man dis-
ability vel non; questions of causation are relevant only to
§ 727.203(b)(3), under which the respondent must "rule out" any connec-
tion between pneumoconiosis and disability).
4 As we stated above, to prevail on the total respiratory disability issue,
Mrs. Roberts must show that her husband was disabled no later than the
month preceding the month of death. Inasmuch as Mr. Roberts died on
April 6, she need only show that his respiratory condition precluded him
from working in the mines a scant week earlier. Counsel for the Fund
conceded at argument that there is no doubt that Roberts was so pre-
cluded.

5
any or much of a role in it, but that is the next (and an entirely sepa-
rate) question. The ALJ's finding, on which the BRB solely relied, is
not supported by substantial evidence.

IV.

After his faulty disability analysis, the ALJ stated, "I find that the
simple pneumoconiosis was not a factor nor did it contribute to [Rob-
erts'] respiratory impairment." This finding, if in accordance with law
and supported by substantial evidence, might justify a denial of bene-
fits under Robinson. However, the BRB decided this case only on the
total disability issue, and it expressly refused to rule on "claimant's
other contentions."

Under the Chenery5 doctrine, courts may not affirm administrative
action on grounds not relied upon by the agency. This court has
applied Chenery to black lung claims. Dayton v. Consolidation Coal
Co., 895 F.2d 173, 175 (4th Cir. 1990), rev'd on other grounds,
Pauley v. BethEnergy Mines, 501 U.S. 680 (1991); Grigg v. Director,
Office of Workers' Compensation Programs, 28 F.3d 416, 418 (4th
Cir. 1994). The claim must therefore be remanded for consideration
of the causation issue.

V.

We make two observations to guide the proceedings on remand.
The respondent Fund asserted at oral argument that it possesses addi-
tional evidence, which was not considered by the ALJ, on the causa-
tion issue. While we leave to the BRB the ultimate question of
whether to remand the claim anew to an ALJ, we suggest that admin-
istrative decisions based on the most complete record possible gener-
ally, and deservedly, stand the best chance of surviving our review.
If the evidentiary record be reopened, Mrs. Roberts should also have
the opportunity to offer additional proof.
_________________________________________________________________

5 Securities and Exchange Comm'n v. Chenery Corp., 318 U.S. 80
(1943).

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Finally, the record reveals that Roberts suffered from a host of dis-
tinct pulmonary diseases. We remind the BRB that the Act provides
benefits for any chronic lung disease "significantly related to, or sub-
stantially aggravated by, dust exposure in coal mine employment." 20
C.F.R. § 718.201; see Barber v. Director, OWCP, 43 F.3d 899, 901
(4th Cir. 1995). Moreover, contrary to strict clinical usage, the Act
defines any such pulmonary disease as "pneumoconiosis." In evaluat-
ing the opinions of physicians, ALJs and the BRB must bear in mind
that medical professionals generally use medical terms of art, not
legal ones. To physicians, "pneumoconiosis" is a single disease, aris-
ing in whole from a specific cause (dust exposure), and producing a
characteristic form of pulmonary damage. To the law,"pneumoconio-
sis" is an array of diseases, arising in whole or in part from dust expo-
sure, and the form of pulmonary damage is irrelevant, so long as some
impairment arises from it.

The denial of benefits is vacated, and the claim is remanded for
reconsideration in accordance with this opinion.

VACATED AND REMANDED

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