JOHN A. SOUBIK, Executor of the Estate of Cecilia Soubik v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of…

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-1668
JOHN A. SOUBIK, Executor of the
Estate
of Cecilia Soubik,
Petitioner
v.
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
United States Department of Labor
On Appeal from the Benefits Review
Board, U.S. Department of Labor
(BRB No. 02-0251 BLA)
Argued December 18, 2003
BEFORE: ROTH and McKEE, Circuit
Judges, and CUDAHY*, Senior Circuit
Judge.
(Filed April 30, 2004)
Neil A. Grover, Esq. (Argued)
Law Office of Neil A. Grover
2201 N. Second Street
Harrisburg, PA 17110
Counsel for Appellant
Sarah M. Hurley, Esq. (Argued)
Howard M. Radzely
Donald S. Shire
Patricia M. Nece
U.S. Department of Labor
Office of the Solicitor
Suite N-2117
200 Constitution Ave., N.W.
Washington, D.C. 20210
Counsel for Appellee
OPINION
McKEE, Circuit Judge.
The widow of a deceased coal
miner1 returns to this court to appeal the
Benefits Review Board’s third denial of
her claim for survivor’s benefits under the
Black Lung Benefits Act (“BLBA”), 30
U.S.C. §§ 901-945. She claims that the
ALJ did not properly weigh the lay and
medical evidence on remand following our
earlier decision, Soubik v. Office of
Workers’ Compensation Programs, No.
* Honorable Richard D. Cudahy, U.S.
Court of Appeals for the Seventh Circuit,
sitting by designation.
1 Widow Cecilia Soubik died after
filing her appeal in this case. The executor
of Mrs. Soubik’s estate, John A. Soubik,
was substituted as the appellant on
February 5, 2004.

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2
98-6338 (3d Cir. June 25, 1999) (“Soubik
I”), and that the Board should not have
affirmed the ALJ’s decision. For the
reasons that follow, we will once again
reverse and remand.
I.
After mining and hauling coal for
nearly 50 years, Michael Soubik filed a
claim under the BLBA in August 1980.
The claim stated that Soubik could no
longer work because he was short-winded
and had difficulty climbing stairs. The
Office of W orkers’ Compensation
Programs (OWCP) denied his claim in
July 1981. He requested a hearing in 1982
after being notified that the denial of
benefits had been reaffirmed, and a
hearing was held before an ALJ in 1986.
He died shortly after the hearing. Dr. Jere
Wagner, one of his treating physicians,
signed a death certificate that listed acute
myocardial infarction as the cause of
death. In 1987, an ALJ again denied his
application for benefits. Although the
OWCP had stipulated that Mr. Soubik
s u f f e r e d f r o m c o a l m i n e r s ’
pneumoconiosis,2 the ALJ concluded that
the pneumoco n i o s is h a d n either
substantially contributed to, nor hastened,
Soubik’s death as required for BLBA
benefits. The BRB affirmed in 1988.
In 1986, while her husband’s claim
was still being litigated, Cecilia Soubik
filed her claim for survivor benefits under
the BLBA. The OWCP administratively
denied her claim on February 2, 1987, and
Mrs. Soubik requested a hearing before an
ALJ three days later. The claim was then
referred to another ALJ, who found that
the only remaining question was whether
pneumoconiosis substantially contributed
to, or hastened, her husband’s death.
2 Under 20 C.F.R. § 718.201,
pneumoconiosis is defined as:
a chronic dust disease of the lung and its
sequelae, including respiratory and
pulmonary impairments, arising out of coal
mine employment. This definition
includes both medical, or “clinical”,
pneumoconiosis and statutory, or “legal”,
pneumoconiosis.
. . .
“Clinical pneumoconiosis” consists of
those diseases recognized by the medical
community as pneumoconioses, i.e., the
conditions characterized by permanent
deposition of substantial amounts of
particulate matter in the lungs and the
fibrotic reaction of the lung tissue to that
deposition caused by dust exposure in coal
mine employment. This definition
includes, but is not limited to, coal
w o r k e r s ’ p n e u m o c o n i o s i s ,
a n t h r a c o s i l i c o s i s , a n t h r a c o s i s ,
anthrosilicosis, massive pulmonary
fibrosis, silicosis or silicotuberculosis,
arising out of coal mine employment.
. . .
“Legal pneumoconiosis” includes any
chronic lung disease or impairment and its
sequelae arising out of coal mine
employment. This definition includes, but
is not limited to, any chronic restrictive or
obstructive pulmonary disease arising out
of coal mine employment.

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However, this ALJ concluded that he was
bound by the original ALJ’s determination
that pneumoconiosis did not hasten M r.
Soubik’s death. Accordingly, the second
ALJ denied Mrs. Soubik’s claim for
survivor’s benefits.
In December 1989, Mrs. Soubik
appealed to the BRB. It affirmed the
ALJ’s decision denying her benefits in
March 1991, and denied her motion to
reconsider its decision in October 1991.3
Mrs. Soubik then submitted a request for
modification of the BRB’s decision to
OWCP,4 which denied it in April 1992.
Over five years later in 1997,
OWCP granted Mrs. Soubik’s request for
another hearing before an ALJ. That July,
an ALJ denied M rs. Soubik’s claim. Mrs.
Soubik appealed to the BRB, but it denied
her appeal on July 28, 1998. She then
filed a petition for review in this court.
We reversed the BRB’s affirmance of the
ALJ’s decision in Soubik I and remanded
the case back to the BRB.
Two years later, in June 2001, the
BRB remanded the case to an ALJ for
proceedings consistent with Soubik I. That
ALJ again denied Mrs. Soubik benefits.
The BRB affirmed and this petition for
review followed.
A. Evidence before the third ALJ in
1997
The third ALJ had before him the
medical opinions of three doctors as well
as the lay opinions of Mr. Soubik’s friends
and family. This evidence is summarized
below.
1. Medical opinions
a. Dr. Karlavage
Dr. Karlavage, who was board-
certified in family practice and dedicated
about 40 percent of his practice to treating
coal miners and former coal miners for
pulmonary problems, treated Mr. Soubik
from October 1985 until his death in April
1986. During that six-month period,
Soubik had three office visits. In his 1986
deposition, Dr. Karlavage stated that he
was aware of Soubik’s three pulmonary
function tests (“PFTs”). He stated that the
1981 PFT was abnormal, the 1985 PFT
was normal, and the 1986 PFT was
“essentially normal” because it had some
normal readings although one reading was
“consistent with obstructive lung disease at
29 percent.” Dr. Karlavage also stated in
his deposition that an x-ray from 1981
indicated anthracosilicosis and one from
1 9 8 5 i n d i c a t e d “ pn e um o c o n i o s is
uncomplicated.”
Based on his examinations of
Soubik, his review of Soubik’s medical
3 Mrs. Soubik and her son sent a letter
to the BRB appealing its affirmation of the
ALJ’s decision, and the BRB deemed this
letter a motion for reconsideration.
4 Mrs. Soubik wrote to OWCP stating
that she understood she needed to go to
federal court so she could submit
additional evidence to continue the claim,
and OWCP treated her correspondence as
a request for modification of the BRB’s
decision.

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4
and occupational history, and the medical
tests he ran, Dr. Karlavage concluded that
Soubik “had lung disease best described as
pneumoconiosis and I think did have
coronary artery disease.” He concluded
that the pneumoconiosis was caused by
Soubik’s “exposure over a several decade
period. . . to silica, rock, and coal dusts.”
He reconciled the variable results from the
three PFTs with his conclusion that
Soubik’s death was substantially related to
his pneumoconiosis, stating that Soubik:
has a chest x-ray that does
indicate pneumoconiosis.
His physical examination
revealed, in my opinion,
some lung disease. There is
v a r i a b i l i t y a m o n g
pulmonary function tests
that certainly does occur. . .
. [P]ulmonary function tests
can and do change from
month to month and from
year to year. So, he was
apparently breathing a little
bit better more recently.
He also noted a contrary negative reading
of one of the chest x-rays indicating that
Soubik did not have pneumoconiosis.
However, he explained that result by
noting the “obvious discrepancies” in the
doctor’s report who read the chest x-ray as
normal. That doctor also claimed that the
results of a PFT that was taken at the same
time as this x-ray were abnormal. Dr.
Karlavage also discounted the significance
of the normal PFT in 1985 because the
doctor who conducted that test did not
account for the medication Soubik was
taking and the effect it would have had on
the PFT.
In February 1995, Dr. Karlavage
wrote a letter to Mrs. Soubik’s attorney. It
stated in relevant part:
During that time [in which I
took care of Mr. Soubik], I
had the opportunity to
review a positive chest x-ray
and an abnormal pulmonary
function test. As you are
aware, Mr. Soubik expired
when he was 74 years old at
the Shamokin Hospital. The
patient’s death certificate
indicates arteriosclerotic
heart disease but on further
inquiry, the family has
discovered directly from the
attending physician, that
c o a l w o r k e r ’ s
p n e u m o c o n i o s i s w a s
involved in his death. (sic)
. . .
In conclusion, it is my
opinion, as it was before,
that . . . the patient’s death
was substantially incurred
due to coal worker’s
pneumoconiosis. Indeed, he
had arteriosclerotic heart
disease and nerve block, but
there is no doubt in my mind
t h a t c o a l w o r k e r ’ s
pneumoconiosis weakened
h i m , w o r s e n e d h i s

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5
c o n d i t i o n , a n d
speeded his death.
b. Dr. Wagner
Dr. Wagner treated Mr. Soubik for
his heart condition from May 1984 until
Soubik’s death, and signed Soubik’s death
certificate.5 Soubik’s death certificate
listed his cause of death as acute
myocardial infarction with complete heart
block and included cardiogenic shock
under “other significant conditions.” Dr.
Wagner was unaware that Soubik had also
been treated by Dr. Karlavage when he
signed the certificate. Nine years after
Soubik died, Dr. Wagner wrote a letter in
response to an inquiry from Mrs. Soubik.
The letter stated that, after reviewing Dr.
Karlavage’s medical records including
pulmonary function studies and x-ray
findings, Dr. Wagner concluded that
Soubik’s pulmonary impairment secondary
to his pneumoconiosis “could have
contributed” to the miner’s cardiac
condition and subsequent death.
c. Dr. Spagnolo
The OWCP had Dr. Spagnolo, who
was board-certified in internal medicine
and pulmonary diseases, review Mr.
Soubik’s medical history. That history
included the PFTs from 1981, 1985, and
1986; two blood gas tests; and two chest x-
ray readings. Based on his review of
Soubik’s history, Dr. Spagnolo concluded
that pneumoco niosis was no t a
substantially contributing factor to
Soubik’s death, and that there was no
reasonable evidence that the miner’s death
was caused by complications of
pneumoconiosis.
Dr. Spagnolo gave no weight to Dr.
Karlavage’s medical opinion to the
contrary because Spagnolo believed that
Karlavage had not adequately explained
the normal results of the pulmonary
function tests from 1985 and 1986.6 He
also gave no weight to Dr. Wagner’s
opinion because it was based on Dr.
Karlavage’s records and also failed to
explain the normal pulmonary function test
results.
Dr. Spagnolo concluded that:
the medical record in my
opinion provides little
evidence for the presence of
a pneumoconiosis. In fact,
the only B-reader report7
5 Unlike the other two doctors whose
opinions were in the record, Dr. Wagner’s
credentials were not specified.
6 As noted above, that is simply not
true. Dr. Karlavage explained the normal
results in 1985 by factoring in the effect of
Soubik’s medication.
7 A “B-reader” is a person with a
significant level of qualification for
reading x-rays, and this court has given B-
readers’ x-ray readings greater weight than
readings by less qualified personnel. See
Labelle Processing Co. v. Swarrow, 72
F.3d 308, 310 n.3 (3d Cir. 1995). Only
one of the people reading one of Mr.

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6
indicates no evidence
of coal workers’
p n e u m o c o n i o s i s .
N e v e r t h e l e s s ,
assuming that a
pneumoconiosis was
p r e s e n t i n M r .
Soubik, his lung
function in 1985 and
again in March 1986
shortly before his
death was normal.
The normal arterial
blood gas results in
1985 provide further
s upport for t h e
conclusion that Mr.
Soubik had normal
lung function. Thus,
this medical record
does not provide
reliable evidence of a
clinically significant
impairment of lung
function or evidence
of progression of any
lung problem at the
time of his death.
Therefore, even if
Mr. Soubik had a
pneumoconiosis, it
did not result in a
clinically significant
impairment of his
heart or lung.
. . .
In summary, . . . Mr.
Soubik’s death was not
c a u s e d b y a
p n e u m o c o n i o s i s . A
pneumoconiosis was not a
substantially contributing
factor leading to his death
and there is no reasonable
evidence (including a well
reasoned medical opinion)
that his death was caused by
c o m p l i c a t i o n s o f
pneumoconiosis.
2. Lay evidence
There were lay opinions in the
record from Mr. Soubik himself as well as
Mrs. Soubik; Walter Koshinskie, their
neighbor and Mr. Soubik’s co-worker;
John Soubik, the Soubiks’ son; Frank
Alberts, Mr. Soubik’s brother-in-law; and
Adeline Cecilia Dilliplane, the Soubiks’
daughter’s mother-in-law.
a. Mr. Soubik
Mr. Soubik testified that he had
suffered difficulty breathing and shortness
of breath for “the last 15 years and as the
years progress, it is getting more and
more.” He stated that if he walked a city
block he would have to stop; that if he had
to walk up or down steps, he had to stop
several times; and that he coughed up
black mucus at night. He also testified that
he took Brondicon for his breathing and
nitroglycerin for his heart. He retired
completely in 1983 due to his breathing
Soubik’s chest x-rays was a B-reader. He
concluded that Soubik’s x-ray did not
indicate pneumoconiosis.

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problems, had a heart attack in 1984, and
never smoked.
b. Mrs. Soubik
Mrs. Soubik testified during the
1989 hearing on her survivor claim. She
also stated that her husband took
Brondicon for his black lung problem.
She stated that it “sort of loosened up his
phlegm [so] that he had to spit up.” She
also testified that he took medication for
his heart after having a heart attack in
1986, shortly before his death. The day he
died, he became short of breath and was
taken to the hospital where he was put in
an oxygen tent. He stayed in the tent until
he died.
She also testified during the 1997
hearing that she personally observed her
husband’s breathing difficulty for “a long
period of time” before his death. Even
after he retired from work and started
receiving Social Security disability
benefits, he would breathe heavily and spit
up blood and mucus every day. The
problem was particularly pronounced in
the evening. She also saw that, just before
his death, he could barely walk and was
very weak.8
c. Walter Koshinskie
Koshinskie testified at the 1989
hearing that he had known Mr. Soubik for
forty years.9 Soubik had hauled coal for
him, and their homes were close to each
other on the same street. He noticed that
Soubik’s health was slipping because
Soubik could not walk well or walk up
stairs because it would “take his wind.”
The day that Soubik died, Koshinskie
noticed that he was winded from walking
outside.
d. John Soubik
John Soubik testified at the 1997
hearing that every time he came home to
visit his parents, he could see his father’s
condition had deteriorated. He observed
that his father had “considerably slowed
down,” and heard him make “gasps for
air” and have a “trying to catch his breath
feeling.” He also saw his father raise his
chest “like he was trying to get air,” and
“hold[] on to the bannister a lot going
down the stairs.” John Soubik also took
his father to the hospital where he was
“hooked. . . up to that breathing
apparatus.”
e. Frank Alberts
Alberts testified at the 1997 hearing
that he had known Mr. Soubik, his brother-
in-law, for about 50 years at the time of
Soubik’s death in 1986. Alberts had
8 Mrs. Soubik also testified that her
brother died of pneumoconiosis, i.e. black
lung disease, and that she had seen her
brother daily for about 20 years before his
death. But this testimony is never linked
to any observations she made of her
husband’s illness.
9 He also testified at the April 1986
hearing on Mr. Soubik’s claim, but that
testimony focused on establishing that
Soubik had worked as a coal miner and
hauler.

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8
worked with him for about a decade
starting in the mid-1930s. He “could see
[Soubik] gradually slowing down. . . over
a period of years” and “could see his
breathing was getting slower. . . and he’d
have to fight for his breath” starting in
about 1974 or 1975. He saw Soubik have
trouble catching his breath “pretty
regular.” Periodically, he saw him
coughing or spitting when they would
visit. He noticed that Soubik had trouble
going up the steps in his house as he got
older.
f. Adeline Cecilia Dilliplane
Ms. Dilliplane had known Mr.
Soubik since 1969 when her son married
the Soubiks’ daughter. She stated that Mr.
Soubik had trouble helping her son build a
house. “[H]e would do some things and
then he would stop because he’d start
wheezing. He’d start coughing.” She said
that she thought he had breathing problems
comparable to hers, and she had serious
problems with asthma. Over time, they
saw each other less often but regularly.
During visits she would hear him wheeze
and “knew he was having a bad. . .
breathing problem.”
B. The ALJ’s 1997 Decision
The ALJ’s 1997 decision denying
benefits was based on Dr. Spagnolo’s
opinion. The ALJ discounted Dr.
Wagner’s opinion as too vague, and he
discounted Dr. Karlavage’s opinion
because it was based on “the report of the
miner’s relatives that pneumoconiosis was
involved in the miner’s death” as Dr.
Wagner had conveyed to them. The ALJ
noted that Mrs. Soubik and “the miner’s
sons and sister-in-law” had testified that
Mr. Soubik had become short of breath
over time, but he did not discuss that
evidence.
C. Soubik I
In Soubik I, we reversed the BRB’s
decision affirming the ALJ’s denial of
benefits, and we remanded for “further
consideration of the lay evidence.” We
agreed with the ALJ that the only dispute
was causation. Accordingly, Mrs. Soubik
had to establish that Mr. Soubik’s death
was due to pneumoconiosis, i.e., that
pneumoconiosis “was a substantially
contributing cause or factor” leading to her
husband’s death or that his “death was
c a u s e d b y c o m p l i c a t i o n s o f
pneumoconiosis” under 20 C.F.R. §
718.205(c).10 We also concluded that Mrs.
Soubik could prove her claim using
“medical evidence alone, non-medical
evidence alone, or the combination of
medical and non-medical evidence” under
Hillibush v. Dep’t of Labor, 853 F.2d 197,
205 (3d Cir. 1988). Hillibush explicitly
held that lay testimony must be considered
in a survivor’s case under 20 C.F.R. §
718.204.
In the case at hand, we held in
Soubik I that neither the ALJ nor the BRB
10 In Lukosevicz v. Director, OWCP,
888 F.2d 1001, 1004, 1006 (3d Cir. 1989),
we held that if the pneumoconiosis hastens
death, even briefly, it can be considered a
substantially contributing cause of death
under 20 C.F.R. § 718.205(c).

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9
had given any consideration to the lay
evidence offered in support of Mrs.
Soubik’s claim, and this evidence “could
be enough to satisfy Mrs. Soubik’s burden
of proof that pneumoconiosis hastened her
husband’s death.” We also noted that the
ALJ and BRB had relied heavily on the
opinion of Dr. Spagnolo, and that he had
formed his opinion “based on his review of
Soubik’s medical history” rather than the
opinions of Soubik’s treating physicians,
Dr. Karlavage and Dr. Wagner.
D. The ALJ’s 2001 Decision on
Remand
Upon remand from Soubik I, the
ALJ summarized the lay testimony in the
record. He found that the lay opinions did
not clearly establish that Mr. Soubik’s
ongoing deterioration was due to
pneumoconiosis or a pulmonary condition.
He also discussed each of the three
doctors’ opinions again, and reached the
same conclusion, that Dr. Spagnolo’s
opinion was the most persuasive.
The ALJ again found that Dr.
Wagner’s opinion was “equivocal and
vague” because he merely stated that the
pneumoconiosis “could have contributed”
to the miner’s death, as he had in 1997.
He also found that Dr. Karlavage’s opinion
was “not well documented nor well
reasoned” because “he did not discuss the
basis for [his] conclusion [that the miner
was totally disabled from coal mine
employment due to his lung disease] given
his own deposition testimony that the
miner’s pulmonary function study results
from studies taken in 1985 and 1986 were
normal.” He also stated that Dr.
Karlavage’s February 22, 1995 letter
established that the doctor “bases his
conclusions regarding the cause of the
miner’s death, in part, . . . only on
statements from the miner’s relatives.”
The ALJ concluded that Dr.
Spagnolo’s opinion would outweigh the
other doctors’ opinions even if they could
establish that pneumoconiosis hastened
Soubik’s death because of Dr. Spagnolo’s
superior credentials and because “Dr.
Wagner. . . did not treat the miner for
respiratory problems and Dr. Karlavage
only saw the miner on three office visits
over a six month period.” The ALJ
believed that the lay testimony was also
outweighed by “the thorough and complete
report of Dr. Spagnolo.” The ALJ
described Dr. Spagnolo as both “[a] highly
qualified. . . pulmonary specialist” as well
as the beneficiary of a complete review of
Soubik’s medical records. The ALJ thus
concluded that Mrs. Soubik did not
establish pneumoconio si s w a s a
substantially contributing factor in her
husband’s death or that it hastened his
death, and he therefore denied survivor’s
benefits.
II. Standard of Review
Because the BRB adopted the
ALJ’s factual findings, we independently
review the entire record to determine if the
ALJ’s factual findings are rational,
consistent with applicable law, and
supported by substantial evidence on the
record considered as a whole. See Mancia
v. Director, OWCP, 130 F.3d 579, 584 (3d
Cir. 1997) (citing Kowalchick v. Director,

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OWCP, 893 F.2d 615, 619 (3d Cir. 1990)).
Substantial evidence has been defined as
such relevant evidence as a reasonable
mind might accept as adequate to support
a conclusion. Id. We exercise plenary
review over the ALJ’s legal conclusions
adopted by the BRB. Id.; see also Carozza
v. U.S. Steel Corp., 727 F.2d 74, 77 (3d
Cir. 1984).
III. Discussion
Mrs. Soubik argues that the ALJ did
not follow Soubik I on remand because he
failed to properly weigh the lay evidence
in the context of the evidence as a whole.
She also argues that the ALJ did not
properly consider the opinions of Dr.
Karlavage and Dr. Wagner. Finally,
assuming we find these arguments
meritorious, she requests that we grant her
BLBA benefits rather than remanding and
reversing.
A. Weighing the lay evidence
The ALJ did consider the lay
evidence on remand per our instructions in
Soubik I. His opinion summarized what
each layperson said and analyzed its
probative value. The ALJ noted that each
of the lay witnesses established that Mr.
Soubik was having trouble breathing,
noticed that Mr. Soubik had increased
trouble with his breathing over time, and
observed his frequent coughing and
spitting up mucus and/or blood. He then
explained his rationale for rejecting the lay
evidence. According to the ALJ, the lay
evidence that Mr. Soubik had breathing
t r o u b l e d i d n o t e st a b l i sh t h at
pneumoconiosis was responsible for, or a
contributing factor to, Soubik’s breathing
impairment. The ALJ concluded that Dr.
Spagnolo’s opinion regarding the cause of
Mr. Soubik’s breathing problems was
more persuasive than these lay opinions.
B. Weighing the medical evidence
Although the lay evidence alone did
not offer an etiology of Mr. Soubik’s
breathing troubles,11 the ALJ improperly
minimized its significance in weighing Dr.
Spagnolo’s opinion and Dr. Karlavage’s
contrary opinion. Mrs. Soubik argues that
this was error because Dr. Spagnolo’s
conclusion that no pneumoconiosis was
present contradicted the parties’ stipulation
to the contrary. She also argues that the
ALJ erred in discounting Dr. Karlavage’s
opinion and that he misunderstood the
basis of that opinion.12
11 The ALJ could hardly expect lay
testimony to establish causation or
etiology. That is beyond the purview or
the competence of lay witnesses. Such
testimony can only be expected to
corroborate certain symptoms and
establish pertinent behavior or quality of
life issues. Expert testimony will usually
be required to establish the necessary
relationship between such observed indicia
of pneumoconiosis and any underlying
pathology.
12 Mrs. Soubik also argues that the ALJ
improperly disregarded Dr. Wagner’s
opinion because it was conditional. As
noted above, his opinion stated that
pneumoconiosis “could” have contributed
to Mr. Soubik’s death. She cites to Piney

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11
In Soubik I we noted that the ALJ
“relied heavily” on Dr. Spagnolo’s
opinion, and that opinion was based solely
on a review of Soubik’s medical history.
Dr. Spagnolo never saw M r. Soubik. We
thus raised the ALJ’s reliance on Dr.
Spagnolo’s opinion as an issue, but did not
definitively state that the ALJ had
incorrectly relied on it. Accordingly, there
is no law of the case regarding the doctors’
opinions.
The Court of Appeals for the Fourth
Circuit has held that an ALJ may not credit
a medical opinion stating that a claimant
did not suffer from pneumoconiosis
causing respiratory disability after the ALJ
had already accepted the presence of
pneumoconiosis unless the ALJ stated
“specific and persuasive reasons” why he
or she relied upon such an opinion. Scott v.
Mason Coal Co., 289 F.3d 263, 269 (4th
Cir. 2002) (internal citation omitted). Like
the medical opinion in Scott, Dr.
Spagnolo’s expert opinion states that
Soubik did not have pneumoconiosis
despite the parties’ agreement that he did.
Dr. Spagnolo’s opinion can be
distinguished from the opinion in Scott
because he stated that even if Soubik had
pneumoconiosis, there is still no evidence
that it contributed to his death. However,
that superficial “hypothetical” does not
reconcile his opinion with the stipulation
that pneumoconiosis was present.
Common sense suggests that it is usually
exceedingly difficult for a doctor to
properly assess the contribution, if any, of
pneumoconiosis to a miner’s death if
he/she does not believe it was present.
The ALJ did not explain why Dr.
Spagnolo’s opinion was entitled to such
controlling weight despite Dr. Spagnolo’s
conclusion that Soubik did not have the
disease that both parties agreed was
present.
Moreover, on remand, the ALJ
obviously misunderstood how Dr.
Karlavage arrived at his opinion and this
contributed to his improper discounting of
Dr. Karlavage’s conclusion. The ALJ
cited part of Dr. Karlavage’s letter to Mrs.
Soubik’s counsel, which stated: “The
patient’s death certificate indicates
arteriosclerotic heart disease but on further
inquiry, the family has discovered directly
from the attending physician, that coal
worker’s pneumoconiosis was involved in
his death.” The ALJ then concludes that,
Mountain Coal Co. v. Mays, 176 F.3d 753,
763 (4th Cir. 1999). In Piney Mountain,
the court evaluated a medical opinion that
stated that “pneumoconiosis could be
considered a complicating factor” in the
miner’s death. The court held only that
such an opinion need not be rejected, as
the petitioner argued, stating that “a
reasoned medical opinion is not rendered
a nullity because it acknowledges the
limits of reasoned medical opinions.” Id.
However, the court also recognized that
“uncertainty is not proof, and claimants
must prove entitlement.” Id. Accordingly,
under Piney Mountain, the ALJ was free to
minimize the probative value of Dr.
Wagner’s conditional opinion but he did
not have to reject it solely because it
appeared to be equivocal.

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12
since Dr. Karlavage based his opinion that
pneumoconiosis contributed to Soubik’s
death on information from Soubik’s
family, Dr. Karlavage’s opinion was not
well-reasoned nor well-documented.
That conclusion is not supported by
substantial evidence. In fact, it is flatly
contradicted by Dr. Karlavage’s 1986
deposition, which was part of the record
from Mrs. Soubik’s earlier hearings before
other ALJs. The deposition details Dr.
Karlavage’s examination and analysis of
three PFTs, the same two chest x-rays that
Dr. Spagnolo relied on, and his own
personal observations of the patient.
Based on this information, Dr. Karlavage
o p i n e d i n 1 9 8 6 t h a t S o u b i k ’ s
pneumoconiosis advanced his death. The
language in Dr. Wagner’s 1995 letter,
written nine years after he issued his initial
opinion regarding the factors contributing
to Soubik’s death, indicates only that Dr.
Wagner later amended his opinion to say
that pneumoconiosis could have
contributed to Soubik’s death after he
reviewed Dr. Karlavage’s records and
opinion. Dr. Karlavage’s opinion was
based on much more than just the family’s
opinion that pneumoconiosis hastened
Soubik’s death. It was therefore irrational
for the ALJ to discount Dr. Karlavage’s
opinion merely because it refers to Dr.
Wagner’s 1995 letter.
It was also improper for the ALJ to
assume that Dr. Karlavage’s consideration
of information from Mr. Soubik’s family
and others who had observed him regularly
was a failing. The ALJ did not explain
that assumption. He stated only that the
lay evidence standing alone does not
provide support for the theory that
pneumoconiosis hastened or caused Mr.
Soubik’s death. He does not explain why
he assumed that Dr. Karlavage’s opinion
would be worth less than Dr. Spagnolo’s
because Dr. Karlavage took such
information into account when forming his
opinion. Indeed, it seems that Dr.
Karlavage’s opinion would be stronger
because it factored in the lay observations
of those who knew Mr. Soubik.13
13 Moreover, at oral argument the
government conceded that Dr. Spagnolo
might have come to a different result if he
had the benefit of the lay evidence. As
noted above, Dr. Spagnolo concluded that
there was no “reliable evidence of a
clinically significant impairment of lung
function or evidence of progression of any
lung problem at the time of his death.”
Yet it is clear from the testimony of those
who knew Soubik that he was having an
increasingly difficult time breathing and
regularly coughed up mucus. Moreover,
the testimony of those who knew Soubik
also established that he was placed in an
oxygen tent when last admitted to the
hospital and that he never recovered. The
ALJ never explained why testimony as
compelling as this can be ignored in favor
of a doctor who opined that Soubik had no
“clinically significant” lung problems.
This is especially true when that doctor
never saw the patient, and all but ignored
the fact that parties are assuming that
pneumoconiosis was present given their
stipulation on this point.

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13
The ALJ also failed to give Dr.
Karlavage’s opinion the additional
deference it was due as the opinion of a
treating physician. The ALJ stated that he
did not credit Dr. Karlavage’s opinion as
that of a treating physician because Dr.
Karlavage had only seen Soubik three
times over six months. That was, of
course, three more times and six months
more than Dr. Spagnolo saw him. So
easily minimizing a treating physician’s
opinion in favor of a physician who has
never laid eyes on the patient is not only
indefensible on this record, it suggests an
inappropriate predisposition to deny
benefits. It is well-established in this
circuit that treating physicians’ opinions
are assumed to be more valuable than
those of non-treating physicians. Mancia v.
Director, OWCP, 130 F.3d 579, 590-91
(3d Cir. 1997). The ALJ nevertheless
ignored Dr. Karlavage’s clinical expertise;
an expertise derived from many years of
diagnosing and treating coal miners’
pulmonary problems. The ALJ did so
without making any effort to explain why
Dr. Spagnolo’s board certification in
pulmonary medicine was a more
compelling credential than Dr. Karlavage’s
many years of “hands on” clinical training.
C. Directing BLBA benefits
We turn to the final issue that Mrs.
Soubik raises. She asks us to remand this
case to the BRB solely to direct entry of an
award of benefits based on the inordinate
delay in properly adjudicating her claim.
She argues that allowing her claim to drag
on any longer would be unfair and
inappropriate because she would certainly
be granted compensation upon remand.14
We agree that this litigation has
been unnecessarily protracted. We have
previously expressed our frustration over
the inefficiency and delay that is all too
often part of the black lung administrative
process. We have done so in a case where
a claimant had been litigating her claim for
benefits for seven years, ten fewer years
than Mrs. Soubik. Mancia, 130 F.3d at 593
(internal citation omitted). In Mancia, we
quoted our decision in Lango v. Director,
OWCP, 104 F.3d 573 (3d Cir. 1997) in
noting that we had “previously expressed
our concern over the ‘dism aying
inefficiency’ of the black lung
administrative process.” 130 F.3d at 593
(quoting Lango, 104 F.3d at 575-76). The
delay in Lango was 14 years, again
substantially shorter than the delay that
Mrs. Soubik was made to endure. We
there gave several examples of inordinate
14 Mrs. Soubik also argued that the
delay was particularly unfair to her
because she was 85 years old, implying
that she might not live long enough to
receive the benefits she was due if we did
not direct the BRB to grant them. As
noted above, Mrs. Soubik died before oral
argument in this case. In light of her
death, we need not now consider this
argument. It is, however, an all too tragic
example of the kind of hardship that can
result from the all too frequent delay in
these cases.

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14
delay ranging from ten years15 to as many
as seventeen,16 and even nineteen years.17
We then stated, “[h]opefully, the
publication of our concern will come to the
attention of authorities who can do
something about it.” Lango, 104 F.3d at
576. We made that statement in 1997.
Yet, even after that admonition, it took the
BRB two years to remand this matter to
the ALJ following our remand to the BRB.
We therefore have little reason to think
that the delays that attend black lung
litigation have been mitigated or even
addressed by the administrative agencies
involved. Given our continuing concern,
we take the liberty of reiterating at length
the concerns we expressed in Lango:
Were this the only case to
come to our attention with
such delay, we would be
inclined to attribute it to a
rare bureaucratic snag.
However, we note that some
recent black lung cases in
this circuit suggest that this
dismaying inefficiency is
not unusual . . . . As far as
we can tell, it appears that
many cases languish while
waiting for an ALJ or the
BRB to hear them.
Although there may have
been special circumstances
in some of these cases that
explain the delay, and we
have not ex haus tively
examined the records, there
is enough basis in the mere
recitation of the facts to
prompt consideration by the
relevant administrators . . . .
Dela ys are esp ecially
significant for recipients of
black lung benefits since
most are nearing the end of
their lives. Claimants have
less time to use the benefits,
and they often must wait
when illness is increasing
their expenses but while
retirement has reduced their
income. Worse, some may
die before litigation resolves
their claims.
Chief Judge Posner has
expressed similar concerns
about black lung cases in the
Seventh Circuit. In Amax
Coal Co. v. Franklin, 957
F.2d 355, 356 (7th Cir.
1992), he remarked:
As so often in black
lung cases, the processing of
t h e c l a im h a s b e e n
protracted scandalously . . .
Such delay is not easy to
15 See Gonzales v. Director, OWCP,
869 F.2d 776 (3d Cir. 1989).
16 See Keating v. Director, OWCP, 71
F.3d 1118 (3d Cir. 1995); Kowalchick v.
Director, OWCP, 893 F.2d 615 (3d Cir.
1990).
17 See Kline v. Director, OWCP, 877
F.2d 1175 (3d Cir. 1989).

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15
understand. These
are not big or
complex cases . . . .
The typical hearing
lasts, we are told, no
more than an hour . .
. The delay in
p r o c e s s in g t h es e
claims is especially
regrettable because
most black lung
claimants are middle-
aged or elderly and
in poor health, and
therefore quite likely
t o d i e b e f o r e
receiving benefits if
their cases are spun
out for years. We
hope that Congress
w i l l c o n s i d e r
s t r ea m l i n in g t h e
a d j u d i c a t i o n o f
disability benefits
cases (not limited to
black lung) along the
lines suggested by
the Federal Courts
Study Committee.
See the Committee’s
Report (Ap ril 2,
1990), at pp. 55-58.
104 F.3d at 573-75. Protracted delay that
results in claimants not living long enough
to collect any benefits they might be
entitled to is, in and of itself, an injustice
that ought to be addressed. However, the
s i tu a t i o n is ex ac er ba ted by a n
exceptionally low rate of agency approval
of benefit claims. “According to one
commentator who cited official reports to
Congress, the approval rate for applicants
for federal black lung benefits is
exceedingly low.” Id. at 575-76 (citing
Timothy F. Cogan, Is the Doctor Hostile?
Obstructive Impairments and the Hostility
Rule in Federal Black Lung Claims, 97 W.
VA. L. REV. 1003, 1004 (1995)). The
sweat and health of miners fueled much of
the growth of the American economy. It is
indeed unfortunate that they and their
families must also now endure the kind of
administrative ordeal evidenced by Mrs.
Soubik’s attempt to collect survivor’s
benefits.
Nevertheless, however frustrating
this may be, as a court we can not direct
the award of black lung benefits solely
because of protracted administrative delay.
See Mancia, 130 F.3d at 593. Although
the length of any delay is a factor we have
often considered when determining
whe t h e r to reman d for furt her
consideration or to direct benefits, we
previously noted that remand for an award
of benefits is inappropriate where the
record supports conflicting inferences. Id.;
Kowalchick v. Director, OWCP, 893 F.2d
615, 624 (3d Cir. 1990).
Here, the unexamined evidence
could support a finding for or against Mrs.
Soubik. If Dr. Karlavage’s opinion as a
treating physician is given proper weight,
and if the lay evidence is properly
considered, the record supports only one
result: an award of benefits to Mrs.
Soubik. If, however, the ALJ had offered
“specific and persuasive reasons” for

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16
relying upon Dr. Spagnolo’s opinion
despite findings that are contrary to the
parties’ stipulation and the opinion of the
treating physician, the record would
support the ALJ’s denial of benefits.
The ALJ and BRB have already had
three chances to properly support a
decision denying benefits. Yet the
decision to deny benefits remains
unsupported by the record. This, together
with the outrageous delay, leads us to
agree that circumstances here require that
we direct benefits on remand. We see no
point in remanding these issues for a
fourth time when the ALJ and BRB have
thus far been unable to justify elevating
Dr. Spagnolo’s opinion over that of the
treating physician, the lay evidence, and
the parties’ o wn stipu lation. See
Podedworny v. Harris, 745 F.2d 210, 223
(3d Cir. 1984) (concluding that “it would
be virtually imp ossib le for th e
[government] in a third hearing to adduce
the new vocational and medical evidence
that would be necessary to support a
finding that th[e] appellant is not disabled”
in a social security benefits case, given
significant “deficiencies in the record and
the failure of the [government] to cure
them in the second proceeding before the
ALJ. . . .”).
Dr. Karlavage’s opinion was based
on actual treatment as well as a record
review. Dr. Karlavage’s clinical expertise,
derived from an extensive practice of
treating miners, the corroboration of lay
testimony, and the stipulation of the
parties, provide more than sufficient
support for Mrs. Soubik’s claim absent a
reasoned explanation for a contrary
finding.18 Accordingly, we believe that
Mrs. Soubik, the original petitioner, has
established her entitlement to survivor’s
benefits under the BLBA, and we will
direct that an award of those benefits be
entered on remand.
IV.
We will reverse the decision of the
BRB entered on January 8, 2003, and
remand the case for an award of benefits
as of the appropriate commencement date.
Since this case has been litigated for nearly
two decades already, we assume that the
BRB will expedite that award.
ROTH, Circuit Judge, dissenting:
My reading of the record in this
appeal does not persuade me that it
supports only one result - as is concluded
by the Majority. Nor do I believe,
pursuant to our standard of review – are
the ALJ’s factual findings rational,
consistent with applicable law, and
supported by substantial evidence on the
record considered as a whole – that the
Court is justified in reversing the judgment
of the Benefits Review Board – however
much I may feel personal sympathy for
Mrs. Soubik.
I do, however, agree with the
18 We reach this conclusion without
disturbing the ALJ’s finding that Dr.
Wagner’s opinion was too vague to be
useful.

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17
majority that the protracted delay in
resolving federal black lung benefits cases
is regrettable.

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