Evidence Insufficient to Sustain Widow's Black Lung Benefits Claim

, in the present case, the parties agree that metastatic lung cancer was the principal decedent had pneumoconiosis, his body lacked oxygen and excessively conley's legal pneumoconiosis (copd and chronic bronchitis) caused or contributed board erred in reversing the alj's decision on the grounds that the decedent's treating 3 decided and filed: february 12, 2010 same manner regardless of whether he had ever worked as a coal miner. in a second to establish that pneumoconiosis "hastened" mr. conley's death.6 becausethealjfoundthatdr.potter'sopinion was "based on objective medical office of workers' compensation administrative law judge ("alj") larry s. merck presided over the hearing and issued there is some room for argument, we acknowledge, about what it means to same. eastover mining, 338 f.3d at 508 n.9 (citations omitted). work histories" (app. 26), and "supported by his treatment and hospitalization notes, submitted a report in which he concluded, "`within a reasonable degree of medical - dust and therefore qualified as legal pneumoconiosis, separate and apart from the criteria is met: this court therefore affirms the decision of the benefits review board. no. 09-3039 conley v. national mines corp., et al page 11 estimate of months suffice? of years? or will a range of any of the above do the trick? potter's, that addresses the issue at such a high level of generality--"the healthier we his treating physician, dr. ira potter, also identified the decedent's "history of cigarette but whether the review board correctly concluded that the alj's decision was not - argued: james d. holliday, hazard, kentucky, for petitioner. laura metcoff klaus, the petitioner bore the burden of proof as to that issue, and her failure to present no. 09-3039 conley v. national mines corp., et al page 4 (6th cir. 1998). "where, however, an alj has improperly characterized the evidence recognized by the medical community as pneumoconioses, i.e., the conditions _________________ the alj nonetheless concluded that dr. broudy and dr. dahhan failed to offer nmc focused its arguments. the alj, in fact, credited the opinions of nmc's experts de novo but accords deference to relevant factual findings. eastover mining, 338 f.3d dr. potter conceded that cigarettes rather than coal-dust exposure caused mr. conley's lung exposure in coal mine employment. . . . benefits from the commonwealth of kentucky, which offset any benefits that might have been awarded that mr. conley had clinical pneumoconiosis arising out of his coal mine employment. (app. 47�48.)4 dust and that his death from lung cancer would have occurred at the same time and in the arising out of coal mine employment. direct cause of death, "pneumoconiosis hastened his demise because the miner's `lack 1 (app. 29), the alj deemed dr. potter's report to be "well-reasoned and well- solomons, greenberg traurig, washington, d.c., for respondents. not contribute to or hasten conley's death, he discounted their opinions that legal that he had [previously described as moderate] substantially hastened his should be able to explain how and to what extent--customarily through a range of substantial evidence in the administrative record, and the decision as a whole must be designed to require mining companies to pay those miners (or the survivors of those 20 c.f.r. � 718.205(c)(3), but it is undisputed here that mr. conley did not suffer from complex a. pneumoconiosis that "arose out of coal mine employment," and that his death was "due 1 metastasis." (appendix ("app.") 69.) the death certificate, which was completed by no. 09-3039 however, the alj devoted a substantial portion of his analysis to the question * was diagnosed with lung cancer in characterized by permanent deposition of substantial amounts of particulate matter in sequelae, including respiratory and pulmonary impairments, arising out of coal mine employment." 30 (1) clinical pneumoconiosis. "clinical pneumoconiosis" consists of those diseases respondents. but [did] not result[] in the underlying cause." (id.) v. above, although he accepted those physicians' opinions thatclinicalpneumoconiosisdid supplemental report dated march 20, 2007, dr. dahhan expressly disagreed with dr. that report that mrs. conley had established by a preponderance of the evidence that mr. words, both physicians implicitly concluded that conley did not have legal leading to" his death. 20 c.f.r. � 718.205(c)(2). that was the question upon which thus, the standards of review for the review board and for the sixth circuit are the c. pneumoconiosis, whether legal or clinical, is considered a "substantially the honorable thomas a. wiseman, jr., senior united states district judge for the middle evidence, as defined in � 718.201 to include medical testing and claimant's medical and mr. conley's clinical pneumoconiosis was a "substantially contributing cause or factor no. 09-3039 conley v. national mines corp., et al page 9 pneumoconiosis at all, and therefore did not address the issue of whether legal medical reports, deposition, and dr. potter's familiarity with [mr. conley's] condition petitioner, pulmonary specialist, the alj concluded that mr. conley's death was "hastened" by his reliance upon the treating physician's opinion linking the miner's death to his therapy well and concluded that there was no evidence in the record suggesting that conley would have done better in his fight against lung cancer if he had not also suffered in eastover mining, the alj awarded benefits to a miner's widow and the that, as is so frequently true when it comes to the application of a legal principal, context adopted by this circuit is that [pneumoconiosis] will be found to be a `substantially contributing cause or - regulations, benefits are provided to the eligible survivors of a miner whose death was reversing the alj, not the alj's decision itself. the court is not called upon to more than a conclusion. a medical opinion that pneumoconiosis expedited death medical opinion, in other words, will not suffice. neither will an opinion, like dr. n ii. conley's metastatic lung cancer was neither related to nor hastened by inhalation of coal pneumoconiosis. nmc appealed that decision to the review board. the review board, applying due to his special relationship with [him] as his treating physician for twenty-one years" greenberg traurig, washington, d.c., for respondents. on brief: james his death. follows upon the heels of the requirement that legal pneumoconiosis be shown by petitioner gartha c. conley filed for benefits in june 2005, nine years after her is part of our physical resistance. in other words, the healthier we are, a proven diagnosis of "complex pneumoconiosis" may also establish the requisite causation, insufficient to support the determination that mr. conley's legal pneumoconiosis if it does so through a specifically defined process that reduces the miner's life by an someone adopting his position) would argue that the pneumoconiosis (6th cir. 2003). in that case, this court held that "pneumoconiosis only `hastens' a death u.s.c. � 902(b) (1994). the regulations clarify that this definition "includes both medical, or `clinical,' cancer. (app. 54.) programs, united states department of physician's opinion was insufficient to carry the widow's burden of proof, based on the no. 09-3039 conley v. national mines corp., et al page 8 found to have metastasized to his brain, pancreas and liver. he died on march 25, 1996. pneumoconiosishastenedhisdeath. dr.dahhandidtestifyunequivocally,however,that a no. legal pneumoconiosis (copd) and awarded benefits based upon that conclusion. > eastover mining, 338 f.3d at 517�18 (emphasis added). pneumoconiosis if pneumoconiosis was a "substantially contributing cause" of death. 20 c.f.r. q55 could you explain to us from a physiological standpoint or an � 718.205(c)(2) and (4) (1992). the primary importance of brown was that it embraced the "hastens national mines corporation; old a conclusory, unsupported opinion such as the one offered by dr. potter in this case is q53 okay. do you believe that lung cancer would have killed mr. � 718.205(c)(5). retained carbon dioxide. this weakened the miner, "played an effect on heavily for a minimum of eighteen or twenty years and possibly as many as fifty years. dr. dahhan found that conley had, at most, minor respiratory obstruction, and what little although nmc contested on appeal to the review board the alj's factual determination that probability,'thatpneumoconiosis `hastened[decedent's]death.'" eastovermining,338 are, the better we're able to deal with serious problems"--that it amounts to nothing anyexplanationfordisregardingconley's lengthycoal-miningcareerasapossiblecause specifically, dr. potter testified as follows: that every death, like every person, is different. more precision may legitimately be reversed, holding, on the basis of a number of grounds, that the alj's decision was not x than someone without pneumoconiosis. this is absurd, of course, and benefits review board affirmed. the mining company appealed, and the sixth circuit - smoking [and] coal mining" as "[o]ther significant conditions [that] contributed to death dave conley, a heavy smoker for decades,1 decided under the 1992 version of 20 c.f.r. � 718.205, which did not contain the "hastens death" the "immediate cause" of his death, as noted on his death certificate, was the term "pneumoconiosis" is defined by statute as a "chronic dust disease of the lung and its conley irrespective of his lung disease? supported by sufficient evidence based upon the legal standards we have established. district of tennessee, sitting by designation. distinguish between clinical and legal pneumoconiosis as follows: husband had died of lung cancer.2 he had was wholly attributable to cigarette smoking rather than to coal mining. in other time--that process hastened a specific patient's death. in that regard, it bears emphasis to his death. compensation claim in 1989, and mrs. conley received those benefits through june 2006. sixth circuit law, held simply that the alj had erred in finding there was sufficient documented." (app. 26, 29.) on that basis, and in reliance upon his reading of body.'" id. at 505 n.6 (quoting from the administrative record). the lungs and the fibrotic reaction of the lung tissue to that deposition caused by dust well-reasoned interpretations of our sister circuits . . . are persuasive that the appropriate standard to be _________________ of oxygen [and] his retained carbon dioxide all played an effect on all parts of his of that opinion the doctor hypothesized that, although the pulmonary embolism was the again,petitionermustshowthatpneumoconiosis"hasten[ed]theminer's board applied the correct legal standard and appropriately reviewed the alj's factual inadequate to support his conclusion that legal pneumoconiosis hastened dave conley's either acute gastrointestinal bleeding or a pulmonary embolism. his treating physician expected when it comes to the relationship of legal pneumoconiosis to some primary and common sense will govern the resolution of these questions. for instance, the death" standard that was subsequently incorporated into the language of 20 c.f.r. � 718.205. see brown, no. 08-0355 bla. the opinion of mr. conley's long-time treating physician, dr. potter, who was not a for the sixth circuit hasten death "by an estimable time." does that mean that every medical opinion must record, and consistent with controlling law. glen coal co. v. seals, 147 f.3d 502, 510 chronic lung disease have less respiratory reserve, less capacity to deal agreed that lung cancer was the principal cause of death and that the lung cancer was instead, he accorded more weight to dr. potter's report and concluded on the basis of death.7 determine whether the review board's decision was supported by substantial evidence, independent finding that mr. conley had "legal" pneumoconiosis as well as "clinical" put differently, woolum [the treating physician] argued that because to his death. he therefore awarded benefits under the blba. (app. 33�34.) pneumoconiosis, and that the legal pneumoconiosis was a contributing cause of death.3 remand is required." eastover mining, 338 f.3d at 508 (citing dir., owcp v. rowe, 710 make a person less likely to survive? consequently, the only issue, in theory, that required resolution by the alj was whether - the delay in filing is related to the fact that mrs. conley was receiving workers' compensation the court notes that the case upon which the petitioner relies, brown v. rock creek mining co., reversed an administrative law judge's award of black lung benefits on a widow's the court in brown reversed and remanded for payment of benefits based upon a finding that "the available where "the principal cause of death was a medical condition not related to the bronchitis not to be well reasoned or well documented, the alj accorded little mr. conley's work and medical records, the claim proceeded to the office of before: batchelder, chief judge; sutton, circuit judge; nodes. he also noted, based on the oncologist's records, that conley tolerated radiation - the evidence regarding exactly how long mr. conley smoked is conflicting, but he smoked - adequate evidence to support the alj's ruling is fatal to her appeal. at least some minimal degree. legal pneumoconiosis only "hastens" a unless the italicized portion of the quoted passage can be considered dictum, this no. 09-3039 conley v. national mines corp., et al page 2 �� 901�945, after her husband dave conley died of metastatic lung cancer. opinion process by which pneumoconiosis hastened dave conley's death. as stated in eastover a decision and order awarding benefits on january 23, 2008. (app. 17�36.) the parties a yes. all parts of his body," and thereby hastened a death that would have q56 can you estimate � is there any way to tell how much longer mr. * 4 interpretation, pneumoconiosis would virtually always "hasten" death to presumably not what congress meant by "hasten." under woolum's no. 09-3039 conley v. national mines corp., et al page 10 discovered, however, the disease had already spread to his lymph nodes and was later miner's life by an estimable time. woolum's letter is conclusory and 6 f.2d 251, 255 (6th cir. 1983)). further, a failure by the alj to apply the correct legal and what if for a medically legitimate reason an estimate cannot be made? we believe - potter's conclusion that mr. conley's weakened lung condition made him more � 718.104(d), the alj accorded dr. potter's opinion "additional probative weight." did, that if pneumoconiosis makes someone weaker, it makes them less overwhelming evidence was that pneumoconiosis hastened the miner's death" in that case. id. (1) where competent medical evidence establishes that pneumoconiosis supported by substantial evidence. in that case, the direct cause of the miner's death was surgical resection of his lung cancer because it had already metastasized to the hilar at 508. the alj's factual determinations must be upheld if they are supported by or failed to [take] account of relevant record material, deference is inappropriate and inadequate because woolum just asserts that because (in woolum's _________________ affirmed if the alj's decision was rational, supported by substantial evidence in the or impairment and its sequelae arising out of coal mine employment. this definition from pneumoconiosis. of the alveolar sacs. and this decreases your respiratory reserve, your q54 do you have an opinion as to whether having the degree of copd susceptible to lung cancer, noting that conley was not able to undergo a complete dictum, and this panel agrees that it is not. moreover, consistent with eastover mining, administrative law judges for a hearing, which was conducted on may 2, 2007. - physician's own unsubstantiated belief: in the end, however, we need not decide today whether a medical opinion may respondents are the national mines corporation ("nmc"), old republic insurance 996 f.2d 812 (6th cir. 1993), even if still current, would not dictate a different conclusion. brown was d. holliday, hazard, kentucky, for petitioner. laura metcoff klaus, mark elliott 996 f.2d at 816 ("the statutory language, the administrative purpose in adopting the regulation, and the 1994, for which he underwent radiation and chemotherapy treatment. by the time it was no. 09-3039 conley v. national mines corp., et al page 6 i. related to conley's history of smoking rather than to coal mining. it was also undisputed no. 09-3039 conley v. national mines corp., et al page 7 like that of the physician in eastover mining, even if medically true, is legally evidence in the record to establish that conley's death was hastened by pneumoconiosis of whether the record supported a conclusion that mr. conley had chronic obstructive a copd destroys air cells. the, the condition leads to destruction pursuant to sixth circuit rule 206 standard presents a legal question over which the review board and this court have accurate medical conclusion, it is legally inadequate. mining, "[o]ne can always claim . . . that if pneumoconiosis makes someone weaker, it united states court of appeals anatomical standpoint what damage copd causes and why it would makes them less resistant to some other trauma." 338 f.3d at 517. dr. potter's opinion, no. 09-3039 conley v. national mines corp., et al page 3 was the cause of the miner's death, or gartha c. conley, widow of dave conley, medical opinion to hasten death "through a specifically defined process." a conclusory wiseman, district judge. the court found that one of the primary deficiencies in the alj's decision was because he found these "conclusory" opinions regarding the diagnosis and etiology of suffice under eastover mining without making some range-of-time estimate in pneumoconiosis gets hit by a train and bleeds to death, woolum (or death? file name: 10a0035p.06 pneumoconiosis and statutory, or `legal,' pneumoconiosis." 20 c.f.r. � 718.201(a). the regulations includes, but is not limited to, any chronic restrictive or obstructive pulmonary disease findings when it concluded, as a matter of law, that dr. potter's opinion was insufficient 5 pneumoconiosis, as that opinion was entirely conclusory and based upon nothing but the minors) who legitimately suffer from a class of various coal dust-related pulmonary death." 20 c.f.r. � 718.205(c)(5). one can always claim, as woolum pulmonary disease ("copd") that was caused at least in part by his exposure to coal mr. conley had legal as well as clinical pneumoconiosis, it has not raised that issue in the present appeal. technically, of course, this court is reviewing the review board's decision (app. 29.) (6th cir. 2003) (internal citation omitted). under the blba and the implementing of the benefits review board. to pneumoconiosis." 20 c.f.r. � 718.205(a). for claims arising after 1982, a coal presented. here, dr. potter's opinion fell well short of "specifically defin[ing]" the for his chronic respiratory ailments and instead attributing them solely to his smoking. the sixth circuit reviews the legal issues raised in this administrative appeal illnesses than to others. wiseman, district judge. petitioner gartha c. conley seeks review of an after the department of labor ("dol") collected due to pneumoconiosis. in order to be eligible for survivor's benefits, a petitioner bears undisputed diagnosis of clinical pneumoconiosis. ultimately, the alj made an "[c]ardiorespiratory failure due to consequence of pulmonary malignancy with contributing cause" of death if it "hastens death." 20 c.f.r. � 718.205(c)(5). based on b. "estimable time" language employed in eastover mining does not exist in a vacuum; it through a "specifically defined process" must explain why that is so and generally pneumoconiosis,unlesstheevidenceestablishesthatpneumoconiosiswas a substantially resistant to some other trauma. if, for instance, a miner with labor, hastened his death. a i, i am of the group that certainly believes that people with both board-certified in internal and pulmonary medicine and b-readers. as indicated argued: january 12, 2010 2 no. 09-3039 conley v. national mines corp., et al page 5 "hastened" his death because he bled to death somewhat more quickly contributing cause of death." id. � 718.205(c)(4). "pneumoconiosis is a `substantially id. � 718.205(c)(1)�(2). the regulations further provide that survivor's benefits are not demise of an individual already suffering from a deadly illness, because the issue is not estimable time." id. at 518. the burden of proving, eastover mining, 338 f.3d at 508, that the miner had to whether "legal" pneumoconiosis contributed to mr. conley's death. (app. 33.) factor' of a miner's death in a case in which it has actually hastened his death."). applying that standard, on petition for review of an order probative weight to dr. broudy's and dr. dahhan's opinions in reaching a decision as the better we're able to deal with serious problems. 20 c.f.r. � 718.201(a). complications of pneumoconiosis. . . .5 contributing cause' of a miner's death if it hastens the miner's death." id. - (2) legal pneumoconiosis. "legal pneumoconiosis" includes any chronic lung disease in light of the sixth circuit's holding in eastover mining co. v. williams, 338 f.3d 501 f.3d at 505 (quoting from the administrative record) (alteration in original). in support standard previously articulated by this court in eastover mining co. v. williams, 338 death if it does so through a specifically defined process that reduces the and we call upon it when we exert ourselves. i think that you lose a lot _________________ cause of dave conley's death. the question before this court is whether the review pneumoconiosis did not contribute to or hasten his death. in fact, both dr. broudy and the alj also considered the opinions of dr. bruce broudy and dr. a. dahhan, quantify a precise number of days by which pneumoconiosis hastens death? will an company, and director, office of workers' compensation programs, united states - 7 of that when you have copd or interstitial fibrosis either one, and that "the black lung benefits act creates an adversarial administrative procedure opinion) the miner had pneumoconiosis, the disease must have hastened order of the benefits review board ("review board") dated november 25, 2008, which - conley might have survived had he not had legal pneumoconiosis? f.3d 501 (6th cir. 2003). for the reasons set forth herein, we affirm. plenary review. arch of ky., inc. v. dir., owcp, 556 f.3d 472, 477 (6th cir. 2009). recommended for full-text publication language included in the current version. instead, it provided that death would be considered "due to" (2) where pneumoconiosis was a substantially contributing cause or occurred anyway from the pulmonary embolus. even if this is an injuries commonly categorized as pneumoconiosis." eastover mining, 338 f.3d at 508 who concluded that the decedent's clinical pneumoconiosis did not cause or contribute ability � we all have a respiratory reserve when we are walking around department of labor. the sole issue presented in this appeal is whether the review under the blba. conley was awarded total disability for black lung in his kentucky state workers' claim filed by mrs. conley under the black lung benefits act ("blba"), 30 u.s.c. factor leading to the miner's death or where the death was caused by with these things, and that therefore it does make a difference. republic insurance company; director, counsel describing the "specifically defined process" by which legal pneumoconiosis sped the miner's death will be considered "due to" pneumoconiosis if either one of the following panel is bound by it. the petitioner in this case does not seriously contend that it is