U.S. Steel Mining Company v. Director, OWCP, et al.,

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUG 3, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-11397
Non-Argument Calendar
________________________
Agency No. 08-0688 BLA
RAMONA MCCRARY, widow of
JOHN E. MCCRARY, deceased,
Claimant,
U.S. STEEL MINING COMPANY, LLC,
Petitioner,
versus
DIRECTOR OFFICE OF WORKERS' COMPENSATION PROGRAMS,
United States Department of Labor,
BENEFITS REVIEW BOARD,
RAMONA MCCRARY,
Respondents.
________________________
Petition for Review of a Decision of the
Department of Labor
________________________
(August 3, 2011)

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Before EDMONDSON, HULL and MARTIN, Circuit Judges.
PER CURIAM:
U.S. Steel Mining Company, LLC (“USSM”) appeals the decision by the
Benefits Review Board (“BRB”) affirming the Administrative Law Judge’s
(“ALJ”) grant of survivor’s benefits to Ramona McCrary, surviving widow of
deceased miner John McCrary, under the Black Lung Benefits Act, 30 U.S.C. §
901 et. seq. (the “Act”). No reversible error has been shown; we affirm.
In a petition for review under the Act, we review decisions of the ALJ only
to determine whether they are in accordance with the law and are supported by
substantial evidence in the light of the entire record. Pittsburg & Midway Coal
Mining Co. v. Dir., OWCP, 508 F.3d 975, 980 (11th Cir. 2007). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id.1
The Act provides benefits to the survivors of miners whose deaths were due
to coal worker’s pneumoconiosis (“CWP”). 30 U.S.C. § 901(a). To receive
survivor’s benefits under the Act, a claimant must establish that (1) the miner had
Because this Court applies the same standard of review to the ALJ decision as the BRB,1
our review of the BRB decision is de novo. Id. We first analyze the ALJ’s decision because
“[w]hen the BRB upholds the ALJ’s decision, this Court’s limited review of the ALJ effectively
cloaks the BRB’s decision with the same deference to which the ALJ is entitled.” Id.
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CWP, (2) his CWP was caused by coal mine employment, and (3) his death was
due to the disease. Bradberry v. Dir., OWCP, 117 F.3d 1361, 1365 (11th Cir.
1997).
At issue in this appeal is the third element: whether McCrary’s death was
due to CWP. In pertinent part, a miner’s death is due to CWP if evidence
establishes that CWP was a substantially contributing cause of death, that is, if
CWP “hastens the miner’s death.” 20 C.F.R. § 718.205(c)(4), (5); Bradberry, 117
F.3d at 1366-67 (deferring to and applying the “hastening death” standard). A
finding that a miner’s death was immediately caused by something other than
CWP is not inconsistent with a finding that CWP contributed to the miner’s death.
Id. at 1367-68.
In granting the claim for survivor’s benefits, the ALJ concluded that the
medical opinions of Dr. Rosenberg and Dr. Goldstein, USSM’s experts, on the
cause of McCrary’s death were unpersuasive because neither doctor found the
presence of CWP. The ALJ also concluded that, based on all the medical evidence
from Dr. Crain and Dr. Dosmann, McCrary’s treating doctors, CWP contributed to
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McCrary’s death because the presence of CWP prevented doctors from treating
McCrary’s lung cancer surgically.2
On appeal, USSM argues that the ALJ erred in concluding that CWP
hastened McCrary’s death. USSM contends that McCrary’s main cause of death
was lung cancer and that nothing supports the conclusion that McCrary would
have been a surgical candidate had he not suffered from CWP, especially given his
many other medical issues.
On whether McCrary’s CWP precluded him from having surgery to treat his
cancer, Dr. Crain unequivocally stated, in a 2006 letter, that McCrary was a non-
surgical candidate because of “the extent of pneumoconiosis” from which he
suffered and that pneumoconiosis contributed to his death. The ALJ was entitled
to give Dr. Crain’s opinion substantial weight because Dr. Crain was McCrary’s
treating doctor, he specialized in pulmonary conditions, he treated McCrary for
respiratory and pulmonary conditions, and the treatment consisted of multiple
visits. See 20 C.F.R. § 718.104(d)(1)-(4) (listing factors to consider in weighing
the opinion of a treating doctor about whether a miner’s death was due to CWP).
This decision was the second ALJ decision in this case. The BRB remanded the ALJ’s2
original decision granting survivor’s benefits and instructed the ALJ to consider all of the
doctors’ opinions about the cause of death. But the BRB affirmed the ALJ’s original finding that
McCrary suffered from CWP.
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This causation opinion is supported by earlier notations Dr. Crain made in
medical records. In February 2003, Dr. Crain noted that McCrary was not a
surgical candidate because of his hypoxemia and a lesion with evidence of
mediastinal lymph node extension. Dr. Crain identified McCrary’s hypoxemia as
being caused by CWP. Dr. Dosmann agreed with Dr. Crain that McCrary was not
a surgical candidate because of his pulmonary condition and the evidence of
mediastinal lymph node extension. That complications from McCrary’s cancer
may also have counted against his being a surgical candidate does not alter that his
CWP also contributed to his unsuitability for surgery. Because a reasonable mind
could have interpreted and credited Dr. Crain’s unequivocal opinion, in
combination with McCrary’s medical records, that CWP was the main reason that
McCrary was unable to have surgery to treat his cancer, substantial evidence
supports the ALJ’s conclusion that McCrary’s CWP caused his doctors to forego
treating his lung cancer with surgery. See Pittsburg, 508 F.3d at 980. And the
inability to operate on McCrary’s cancer hastened his death.
We reject USSM’s argument that Dr. Crain’s 2006 letter was conclusory
and lacked explanation. Dr. Crain explained that the reason he believed CWP
significantly contributed to McCrary’s death was, at least in part, because the
disease prevented him from being able to receive surgery to treat his lung cancer.
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And Dr. Crain discussed in the letter the medical evidence upon which he reached
this conclusion, including a chest x-ray, a CT scan, a lung biopsy, and a
pulmonary function test.
USSM also argues that the ALJ erred in discrediting the opinions of Dr.
Rosenberg and Dr. Goldstein based on their conclusion that McCrary did not have
CWP. USSM contends that the existence of CWP was independent from death
causation. But we conclude that it was reasonable for the ALJ to give little weight
to these doctors’ opinions, both of whom concluded that McCrary did not suffer
from CWP or any other condition aggravated by or related to coal dust exposure.
A doctor who concludes that a miner did not suffer from an impairment related to
coal dust exposure necessarily will find that a coal dust impairment did not cause
the miner’s death. The ALJ acted in a reasoned manner in weighing the3
conflicting evidence and determining that Goldstein’s and Rosenberg’s opinions
on whether McCrary’s death was caused by CWP should be given little weight.
See Bradberry, 117 F.3d at 1367 (explaining that “[t]he ALJ is responsible for
making credibility determinations and for weighing conflicting evidence”).
AFFIRMED.
In addition, USSM does not challenge the ALJ’s original finding that McCrary did, in3
fact, suffer from CWP.
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