978-1285770178 Case Problem Case CPC-23-06

C.A.6,2010.

Conley v. National Mines Corp.

595 F.3d 297 United States Court of Appeals,

Administrative Law and Procedure 15A 791

15A Administrative Law and Procedure

15AV Judicial Review of Administrative Decisions

15AV(E) Particular Questions, Review of

15Ak784 Fact Questions

15Ak791 k. Substantial evidence. Most Cited Cases

An ALJ’s factual determinations must be upheld if they are supported by substantial evidence in the administrative

record, and the decision as a whole must be affirmed if the ALJ’s decision was rational, supported by substantial

evidence in the record, and consistent with controlling law.

15Ak741 k. In general. Most Cited Cases

Administrative Law and Procedure 15A 817.1

15A Administrative Law and Procedure

[4] Labor and Employment 231H 2697

231H Labor and Employment

231HXV Mines

231H Labor and Employment

231HXV Mines

231HXV(B) Pneumoconiosis; Black Lung Benefits

231Hk2697 k. Judicial review. Most Cited Cases

231HXV Mines

231HXV(B) Pneumoconiosis; Black Lung Benefits

231Hk2697 k. Judicial review. Most Cited Cases

231H Labor and Employment

231HXV Mines

231HXV(B) Pneumoconiosis; Black Lung Benefits

231Hk2680 k. In general. Most Cited Cases

Under the BLBA and implementing regulations, benefits are provided to the eligible survivors of a miner whose

231HXV Mines

231HXV(B) Pneumoconiosis; Black Lung Benefits

231Hk2685 Evidence

231Hk2688 Weight and Sufficiency

231Hk2688(4) k. Treating physician. Most Cited Cases

ARGUED: James D. Holliday, Hazard, Kentucky, for Petitioner. Laura Metcoff Klaus, Greenberg Traurig, Wash-

ington, D.C., for Respondents. ON BRIEF: James D. Holliday, Hazard, Kentucky, for Petitioner. Laura Metcoff

Klaus, Mark Elliott Solomons, Greenberg Traurig, Washington, D.C., for Respondents.

Before: BATCHELDER, Chief Judge; SUTTON, Circuit Judge; WISEMAN, District Judge.FN*

Petitioner Gartha C. Conley seeks review of an order of the Benefits Review Board (“Review Board”) dated No-

vember 25, 2008, which reversed an Administrative Law Judge’s award of black lung benefits on a widow’s claim

filed by Mrs. Conley under the Black Lung Benefits Act (“BLBA”), 30 U.S.C. §§ 901–945, after her husband Dave

Conley died of metastatic lung cancer. Respondents are the National Mines Corporation (“NMC”), Old Republic

Insurance Company, and Director, Office of Workers’ Compensation Programs, United States Department of Labor.

substantial evidence, but whether the Review Board correctly concluded that the ALJ’s decision was not supported

dust-related pulmonary injuries commonly categorized as pneumoconiosis.” Eastover Mining, 338 F.3d at 508 (6th

Cir.2003) (internal citation omitted). Under the BLBA and the implementing regulations, benefits are provided to

the eligible survivors of a miner whose death was due to pneumoconiosis. In order to be eligible for survivor’s bene-

fits, a petitioner bears the burden of proving, Eastover Mining, 338 F.3d at 508, that the miner had pneumoconiosis

that “arose out of coal mine employment,” and that his death was “due to pneumoconiosis.” 20 C.F.R. § 718.205(a).

C.F.R. § 718.205(c)(3), but it is undisputed here that Mr. Conley did not suffer from complex pneumoconi-

osis.

Id. § 718.205(c)(1)–(2). The regulations further provide that survivor’s benefits are not available where “the principal

cause of death was a medical condition not related to pneumoconiosis, unless the evidence establishes that pneumo-

establish that pneumoconiosis “hastened” Mr. Conley’s death.FN6

FN6. Although NMC contested on appeal to the Review Board the ALJ‘s factual determination that Mr.

Conley had legal as well as clinical pneumoconiosis, it has not raised that issue in the present appeal.

C.

port of that opinion the doctor hypothesized that, although the pulmonary embolism was the direct cause of death,

“pneumoconiosis hastened his demise because the miner’s ‘lack of oxygen [and] his retained carbon dioxide all

played an effect on all parts of his body.’ ” Id. at 505 n. 6 (quoting from the administrative record).

The Court found that one of the primary deficiencies in the ALJ’s decision was his reliance upon the treating physi-

cian’s opinion linking the miner’s death to his pneumoconiosis, as that opinion was entirely conclusory and based

upon nothing but the physician’s own unsubstantiated belief:

Put differently, Woolum [the treating physician] argued that because Decedent had pneumoconiosis, his body

lacked oxygen and excessively retained carbon dioxide. This weakened the miner, “played an effect on all parts of

his body,” and thereby hastened a death that would have occurred anyway from the pulmonary embolus. Even if

this is an accurate medical conclusion, it is legally inadequate.

Again, Petitioner must show that pneumoconiosis “hasten[ed] the miner’s death.” 20 C.F.R. § 718.205(c)(5). One

can always claim, as Woolum did, that if pneumoconiosis makes someone weaker, it makes them less resistant to

clusory and inadequate because Woolum just asserts that because (in Woolum’s opinion) the miner had pneumo-

coniosis, the disease must have hastened his death.

Eastover Mining, 338 F.3d at 517-18 (emphasis added).

Does that mean that every medical opinion must quantify a precise number of days by which pneumoconiosis has-

tens death? Will an estimate of months suffice? Of years? Or will a range of any of the above do the trick? And what

if for a medically legitimate reason an estimate cannot be made? We believe that, as is so frequently true when it

comes to the application of a legal principal, context and common sense will govern the resolution of these ques-

tions. For instance, the “estimable time” language employed in Eastover Mining does not exist in a vacuum; it fol-

specific patient’s death. In that regard, it bears emphasis that every death, like every person, is different. More preci-

sion may legitimately be expected when it comes to the relationship of legal pneumoconiosis to some primary ill-

nesses than to others.

In the end, however, we need not decide today whether a medical opinion may suffice under Eastover Mining with-

pneumoconiosis hastened Dave Conley’s death.FN7 The petitioner bore the burden of proof as to that issue, and her

failure to present adequate evidence to support the ALJ‘s ruling is fatal to her appeal.

FN7. The Court notes that the case upon which the Petitioner relies, Brown v. Rock Creek Mining Co., 996

ry language, the administrative purpose in adopting the regulation, and the well-reasoned interpretations of

our sister circuits ... are persuasive that the appropriate standard to be adopted by this circuit is that [pneu-

moconiosis] will be found to be a ‘substantially contributing cause or factor’ of a miner’s death in a case in

which it has actually hastened his death.”). Applying that standard, the Court in Brown reversed and re-

manded for payment of benefits based upon a finding that “the overwhelming evidence was that pneumo-

595 F.3d 297

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