US Steel Mining Co v. DOWCP

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

U. S. STEEL MINING COMPANY, LLC,
Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS'
No. 98-1864
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
JANIS J. BOWLES, Widow of Billy D.
Bowles, Deceased,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(97-1010-BLA)

Submitted: November 30, 1998

Decided: December 21, 1998

Before WILKINS and LUTTIG, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Howard Gerald Salisbury, Jr., KAY, CASTO, CHANEY, LOVE &
WISE, Charleston, West Virginia, for Petitioner. Roger D. Forman,
FORMAN & CRANE, L.C., Charleston, West Virginia, for Respon-
dents.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

United States Steel Mining Company, Incorporated ("employer")
petitions for review of a decision of the Benefits Review Board
("Board") affirming the administrative law judge's ("ALJ") decision
to award black lung survivor's benefits to Janis Bowles, the widow
of Billy Bowles, a former coal miner. This case arises under Part 718
of the applicable regulations. See 20 C.F.R. Part 718 (1998). Under
Part 718, a surviving spouse is entitled to survivor's benefits if she
can establish that pneumoconiosis substantially contributed to the
miner's death. See 20 C.F.R. § 718.205(c) (1998). We have deter-
mined that a claimant meets her burden of establishing a connection
between pneumoconiosis and death if she proves that the disease
served "to hasten death in any way." See Shuff v. Cedar Coal Co., 967
F.2d 977, 979 (4th Cir. 1992). We must affirm the decision of the
Board if it properly found the ALJ's decision supported by substantial
evidence and in accordance with law. See Doss v. Director, Office of
Workers' Compensation Programs, 53 F.3d 654, 658 (4th Cir. 1995).

The miner died on December 30, 1994. The death certificate, pre-
pared by Dr. Kamthan, lists metastatic non-small cell carcinoma as
the cause of death, but lists no other conditions. The autopsy report,
prepared by Dr. Cuadra, similarly finds death due to lung cancer with-
out mentioning pneumoconiosis. Dr. Naeye, a pathologist, reviewed
the autopsy materials and opined that while pneumoconiosis was
present, it was far too mild to have prevented the miner from engag-
ing in hard physical work in the mines or to have contributed to his
death. He also opined that little or none of the miner's emphysema
could be attributed to his coal dust exposure.

The ALJ rejected these pieces of evidence in favor of the report of
Dr. Othman, the miner's treating physician, who opined that pneumo-
coniosis was "definitely a contributing factor, if not the main factor,

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of [the miner's] death." The ALJ noted that Dr. Othman treated the
miner for his respiratory conditions regularly for a period of approxi-
mately four years until shortly before his death, and that his opinion
was supported by dozens of treatment reports showing the gradual
deterioration of the miner's condition. Dr. Naeye's opinion, by con-
trast, was based solely on the autopsy slides he reviewed. The ALJ
discounted Dr. Cuadra's autopsy findings because, even though there
was no dispute that the miner suffered from pneumoconiosis since at
least the early 1980s, he did not mention the disease. Dr. Kathman
also did not mention the disease, and the ALJ inferred that he may
have based his findings solely on hospital medical records relating to
the miner's treatment for lung cancer. Finally, the ALJ found that, as
a Board Certified specialist in both Pulmonary Disease and Internal
Medicine, Dr. Othman's credentials were superior to the other physi-
cians of record, whose credentials were not reflected by the record
other than to note that Dr. Naeye is the Chairman of the Pathology
Department at Pennsylvania State University.

On appeal, employer essentially argues that Dr. Othman's opinion
fails to provide substantial evidence in support of the ALJ's finding
that pneumoconiosis contributed to the miner's death. Employer con-
tends that Dr. Othman's opinion is not well founded, is contrary to the
objective evidence of record, and is speculative because Dr. Othman
did not see the miner during the last six months of his life after refer-
ring him to another physician for his cancer treatment. Employer's
contention that Dr. Othman's opinion is speculative is apparently
based on the statement in his report:

Again, the last time I have seen Mr. Bowles was in June and
he did expire December 30, 1994 so I am not able to say
100% that his cancer did not advance and progress to cause
his death six months after I had seen him.

Despite his uncertainty as to the precise role that cancer played in
the miner's death, however, Dr. Othman remained unequivocal in his
belief that pneumoconiosis also played a contributory role. His report
affirmatively states this fact twice, including the final sentence of his
report, which reads:

Again, he does have coalworker's pneumoconiosis and he
has been on multiple medications and has been treated for

3
 years for exacerbation of his lung symptoms and that is defi-
nitely a contributing factor, if not the main factor, of his
death.

Contrary to employer's assertion, Dr. Othman's opinion is not
unsupported by objective evidence. Rather, testing and examination
he compiled over dozens of visits spanning approximately four years
supported his finding that the miner suffered from severe lung dis-
ease. Moreover, there is no dispute that the miner suffered from pneu-
moconiosis and in fact received black lung disability benefits for that
pneumoconiosis during his lifetime.

This is not a case where the ALJ mechanically accorded greater
weight to the treating physician's opinion merely because of his status
as a treating physician, a practice we have condemned. See Sterling
Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir. 1997).
Instead, the ALJ properly accorded Dr. Othman's opinion "especial
consideration" based on his intimate familiarity with the miner's res-
piratory condition. See Grizzle v. Pickands Mather and Co., 994 F.2d
1093, 1097 (4th Cir. 1993). He also properly found Dr. Othman's
opinion entitled to greater weight than the opposing opinions of
record based on his superior qualifications. See Lane v. Union Car-
bide Corp., 105 F.3d 166, 173 (4th Cir. 1997).

While the record in this case contains evidence that could have
moved the ALJ to reach different conclusions, we must defer to the
ALJ's evaluation of the proper weight to accord conflicting medical
opinions. Id. at 172. As the ALJ provided legally permissible reasons
to support his resolution of the conflicts in this record, we conclude
that substantial evidence supports his award of benefits. Accordingly,
the decision of the Board is affirmed. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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