Balsavage v. Director, Owcp

• Decision Date: 28 June 2002
• Docket Number: No. 01-2091.,01-2091.
• Citation: 295 F.3d 390
• Parties: Evelyn BALSAVAGE, widow of Anthony Balsavage, Claimant/Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS (United States Department of Labor), Party-in-Interest/Respondent.
• Court: U.S. Court of Appeals — Third Circuit

295 F.3d 390

Evelyn BALSAVAGE, widow of Anthony Balsavage, Claimant/Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS (United States Department of Labor), Party-in-Interest/Respondent.

No. 01-2091.

United States Court of Appeals, Third Circuit.

Filed June 28, 2002.

Argued: January 15, 2002.

COPYRIGHT MATERIAL OMITTED

Helen M. Koschoff (argued), Warburton, PA, for claimant/petitioner Evelyn Balsavage, widow of Anthony Balsavage.

Jeffrey S. Goldberg (argued), Howard M. Radzely, Acting Solicitor of Labor, Donald S. Shire, Associate Solicitor, Patricia M. Nece, Counsel for Appellate Litigation, U.S. Department of Labor, Office of the Solicitor, Washington, DC, for party-in-interest/respondent Director, Office of Workers' Compensation Programs, (United States Department of Labor).

Before: ALITO, ROTH, Circuit Judges, and SCHWARZER,^* Senior District Judge

OPINION OF THE COURT

SCHWARZER, Senior Judge.

Evelyn Balsavage petitions for review of a final order of the Benefits Review Board, United States Department of Labor, affirming a final decision of the Administrative Law Judge ("ALJ") denying survivor's benefits to appellant, pursuant to 33 U.S.C. § 921(b)(3), as incorporated into the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. Mrs. Balsavage is the widow of Anthony Balsavage ("the Miner"), who died at the age of 73 on November 10, 1998. We must decide whether the ALJ's decision is supported by substantial evidence. We have jurisdiction under 33 U.S.C. § 921(c), as incorporated by 30 U.S.C. § 932(a), and grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In 1991, Dr. Edward W. Cubler diagnosed the Miner with pneumoconiosis¹ Category II, severe obstructive lung disease, moderately severe emphysema, low blood oxygen levels at rest, and severe wheezes and rales over all lung fields. The Miner could "walk about 50 yards before [getting] winded" and could "not make a flight of stairs because of his shortness of breath." Dr. Cubler concluded that the Miner had a "severe impairment... preventing him from performing his last coal mine job," and certified him totally disabled. Later that year, Dr. Richard F. Feudale, who treated the Miner from 1963 to 1991, examined him and diagnosed pneumoconiosis, severe obstructive lung disease, bilateral pulmonary emphysema, and other respiratory symptoms. Neither physician noted any cardiac dysfunction.

Seven years later, on September 24, 1998, the Miner was admitted to Ashland Regional Medical Center, suffering from "shortness of breath and syncope" and other cardiac and respiratory symptoms. The principal diagnosis, by attending physician Dr. Houssam Abdul-Al, was "acute congestive heart failure"; other diagnoses were "new onset atrial fibrillation; chronic obstructive pulmonary disease; coronary artery disease; emphysema; pleural effusion; [and] mitral insufficiency." Chest x-rays showed "moderate left ventricular enlargement increased from previous study with recent changes indicating mild congestive heart failure superimposed on chronic obstructive pulmonary disease." EKGs revealed "atrial fibrillation with rapid ventricular response, left axis deviation, [and] left bundle branch block." He was discharged in stable condition on September 28.

On November 10, 1998, the Miner suffered a "cardio-pulmonary arrest" after "coughing and gagging prior to arrest," according to the emergency care registration form. He died within minutes of admission to the hospital.²

Three physicians made written submissions in support of Mrs. Balsavage's claim, two of them treating physicians, and one also testified on deposition. All concluded that pneumoconiosis hastened or contributed to the Miner's death.

Dr. Raymond J. Kraynak served as the Miner's treating physician for roughly sixteen months, seeing him every one to two months until about six weeks before his death.³ On January 11, 1999, Dr. Kraynak wrote a one-page letter to the Department of Labor stating, "I do not have any records concerning the circumstances of his death and [am] unable to give you an updated report." Six months later, on July 27, 1999, Dr. Kraynak wrote to Mrs. Balsavage's attorney stating, "[i]t is clear from my taking care of Mr. Balsavage and from his complaints for some time, that coal workers' pneumoconiosis was a substantial and causative factor in [his] death." In deposition testimony on October 8, 1999, Dr. Kraynak testified that, after having reviewed the Miner's medical records, in his opinion the Miner's death was "due to acute respiratory arrest as well as anthracosilicosis which caused the arrest." He added that the Miner "had some cardiac difficulties due to his anthracosilicosis." On cross-examination, during which he was asked whether pneumoconiosis could have caused the Miner's coronary artery disease or atrial fibrillation, he explained that it could be indirectly responsible by requiring "the heart ... to pump blood through a diseased lung," lowering blood oxygen and "aggravat[ing] the conductive mechanism of the heart." Two weeks later, on October 15, 1999, Dr. Kraynak wrote to Mrs. Balsavage's attorney in response to the opinion letter Dr. Samuel V. Spagnolo gave the Director, stating:

From my review of all the records, my personal care of Mr. Balsavage during his lifetime, as well as interviewing the widow in this matter, it is still my opinion that Mr. Balsavage's death was due to coal workers' pneumoconiosis, contracted during his employment in the anthracite coal industry.... He definitely would have survived longer if he did not have coal workers pneumonoconiosis.

On August 18, 1999, Dr. Abdul-Al, who had treated the Miner from September 24 until his death seven weeks later, reported that he "saw [the Miner] at the hospital... when he had cardiopulmonary arrest and had unsuccessful resuscitation [i.e. death]." He concluded that he had "diffuse fibrotic pulmonary disease due to anthrasilicosis and pneumoconiosis and because of his condition his heart was getting progressively worse.... I do believe that the number one cause of his death is the anthrasilicosis which was the reason he developed cardiac disease."

On September 29, 1999, Dr. John P. Simelaro, after reviewing twenty documents from the Miner's medical records,⁴ opined that the Miner's "anthracosilicosis" caused fibrosis in his lungs, interfering with oxygen uptake to the myocardium, which led to "cardiac dysfunction [as evidenced by his] dysrhythmia [and] atrial fibrillation." This, in turn, caused "a 20% reduction in cardiac output." He concluded there was diffuse airway destruction from the anthracosilicosis, increasing "overall cardiopulmonary compromise," "leading to cardiac failure and eventually death ... in this case."

In opposition to Mrs. Balsavage's case, the Director offered the medical report of Dr. Spagnolo, dated September 25, 1999, which was based on a review of documents from the Miner's medical records.⁵ Dr. Spagnolo's letter states that

[his] chronic left heart disease had worsened just prior to his cardiac arrest and evidence of left heart failure was present. He [sic] heart disease was unrelated to his pneumoconiosis and emphysema. Increasing respiratory symptoms prior to his death were the result of left heart failure. His terminal event was cardiac arrest caused by his acute and chronic coronary artery disease.... [T]he medical records do not provide objective, reliable or reproducible evidence that pneumoconiosis contributed in any way to [the Miner's] death. He would have died at the same time even if he had no other underlying medical conditions including pneumoconiosis.

The ALJ rejected the Miner's three physicians' proffered evidence and instead accepted Dr. Spagnolo's opinion that the Miner's death was precipitated by left heart disease and not hastened by pneumoconiosis. He found that the three physicians' testimony did not persuasively establish that the Miner's pneumoconiosis even hastened the Miner's death.

SCOPE OF REVIEW

We review the Board's decision to determine whether the Board adhered to its statutory scope of review. Kertesz v. Crescent Hills Coal Co., 788 F.2d 158, 162 (3d Cir.1986). The Board was required to accept the ALJ's findings of fact if supported by substantial evidence. 33 U.S.C. § 921(b)(3), as incorporated by 30 U.S.C. § 932(a). Thus, we must "`independently review the record and decide whether the ALJ's findings are supported by substantial evidence.'" Lango v. Director, OWCP, 104 F.3d 573, 576 (3d Cir.1997) (quoting Kowalchick v. Director, OWCP, 893 F.2d 615, 619 (3d Cir.1990)). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). If substantial evidence exists, we must affirm the ALJ's interpretation of the evidence even if we "might have interpreted the evidence differently in the first instance." Old Ben Coal Co. v. Battram, 7 F.3d 1273, 1278 (7th Cir.1993).

DISCUSSION

To be entitled to benefits, Mrs. Balsavage must prove that "[t]he miner's death was due to pneumoconiosis." 20 C.F.R. § 718.205(a)(3). "[D]eath will be considered to be due to pneumoconiosis... [w]here pneumoconiosis was a substantially contributing cause or factor leading to the miner's death or where the death was caused by complications of pneumoconiosis." 20 C.F.R. § 718.205(c)(2). Pneumoconiosis is a "substantially contributing cause of a miner's death `if it hastens the miner's death.'" 20 C.F.R. § 718.205(c)(5). "Even if pneumoconiosis hastened by only a few days a miner's death from other causes, there is a basis to award benefits." Lango, 104 F.3d at 576.

The ALJ has broad discretion to determine the weight accorded each doctor's opinion. Director, OWCP v. Mangifest, 826 F.2d 1318, 1326 (3d Cir....