Maxine Livermore v. Amax Coal Company

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3986
M AXINE L IVERMORE ,
Petitioner,
v.
A MAX C OAL C OMPANY , and D IRECTOR ,
O FFICE OF W ORKERS ’ C OMPENSATION P ROGRAMS ,
U NITED S TATES D EPARTMENT OF L ABOR ,
Respondents.
____________
On Petition for Review of a Decision
of the Benefits Review Board,
United States Department of Labor
No. 00-BLA-693
____________
A RGUED M AY 15, 2002—D ECIDED J ULY 25, 2002
____________
Before F LAUM , Chief Judge, B AUER and R IPPLE , Circuit
Judges.
B AUER , Circuit Judge. Maxine Livermore, widow of
deceased coal miner Billy Livermore, sought federal black
lung benefits pursuant to the Black Lung Benefits Act,
30 U.S.C. §§ 901-945. A district director from the Office
of Workers’ Compensation Programs of the Department
of Labor denied the claim for benefits. Maxine Liver-
more then requested an administrative hearing. An admin-
istrative law judge (ALJ), after reviewing the evidence,
found that Billy Livermore’s death was caused, at least

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2 No. 01-3986
1 The regulations, 20 C.F.R. § 718.201, include anthracosis as one
of the diseases constituting clinical pneumoconiosis.
in part, by coal workers’ pneumoconiosis, and awarded ben-
efits to Maxine Livermore. Amax Coal Co. appealed the
ALJ’s decision to the Benefits Review Board of the De-
partment of Labor (BRB). The BRB vacated the ALJ’s
decision, finding the ALJ had failed to properly weigh and
consider all the evidence. On remand, the ALJ denied ben-
efits, and the BRB affirmed. Maxine Livermore now ap-
peals the decision to deny benefits. Because the ALJ’s
ruling is supported by substantial evidence, we affirm.
BACKGROUND
Billy Livermore was an underground coal miner for over
forty years. He died at the age of sixty-four. His treating
physician, in his final diagnosis, noted “coal workers’ pneu-
moconiosis” as one of Livermore’s aliments. The doctor
who issued the certificate of death concluded the immedi-
ate cause of death was hemorrhagic shock (blood loss) due
to esophageal and stomach bleeding. Contributing causes
were respiratory failure, severe chronic obstructive pulmo-
nary disease, and “probable” coal workers’ pneumoconiosis.
The autopsy report, written by another doctor, concluded
that there were signs of mild anthracosis 1 in Livermore’s
lungs.
Maxine Livermore and Amax Coal Co. each hired ex-
perts to interpret the findings outlined above and give med-
ical opinions as to the cause of Billy Livermore’s death.
Maxine Livermore’s expert, Dr. Miles Jones, concluded
that Billy Livermore’s pneumoconiosis played a signifi-
cant role in causing his death. Amax’s experts, Dr. Ed-
mond Crouch, Dr. Jerome Kleinerman, Dr. Raphael Caf-
frey, and Dr. Richard L. Naeye, all found no evidence of

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No. 01-3986 3
coal workers’ pneumoconiosis. The treating physician and
the two doctors who conducted postmortem examina-
tions found signs of pneumoconiosis. Dr. Gregory J. Fino
prepared a report, not attributed to either party, concluding
there was no evidence of pneumoconiosis. Finally, an inde-
pendent medical expert, Dr. Peter G. Tuteur, opined that
there was not enough significant pathology to indicate
Billy Livermore suffered from pneumoconiosis.
The ALJ found that the postmortem evidence showed
Billy Livermore had anthracosis, which was sufficient
to establish that he had clinical pneumoconiosis. See 20
C.F.R. § 718.201 and 20 C.F.R. §§ 718.202(a)(2), (a)(4). The
ALJ credited the opinions of the physicians who actually
conducted the biopsy and autopsy evidence, over Amax’s
experts, who only examined the results of the autopsy.
See Peabody Coal Co. v. Shonk, 906 F.2d 264, 269 (7th
Cir. 1990) (holding that it is permissible for an ALJ to
credit the opinions of physicians who perform an autop-
sy over those who merely view the results). The ALJ also
concluded that Billy Livermore’s respiratory conditions,
which were caused or exacerbated by the coal dust ex-
posure, “hastened his death”. Thus, the ALJ found Max-
ine Livermore had established that Billy Livermore’s
death was attributable to pneumoconiosis under 20 C.F.R.
§ 718.205 and awarded benefits.
On petition for review, the BRB reversed the award,
finding the ALJ did not resolve conflicting evidence nor
weigh the evidence properly. However, the BRB affirmed
the ALJ’s finding that the presence of pneumoconiosis
was established by autopsy and biopsy evidence. The BRB
noted that the ALJ gave undue weight to the fact that
several physicians were unable to rule out whether Billy
Livermore’s respiratory problems were related to or caused
by coal dust exposure. The BRB also pointed out there
was little affirmative evidence demonstrating the res-
piratory conditions were caused by coal dust exposure, and

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4 No. 01-3986
2 According to the record, only Dr. Jones directly linked pneumo-
coniosis as the main or significant cause of Billy Livermore’s
death. Dr. Houser listed coal workers’ pneumoconiosis as one of
many ailments which contributed to Livermore’s demise. And Dr.
Browne concluded that respiratory failure, which led to Billy
Livermore’s death, was due, in part, to “probable” coal workers’
pneumoconiosis and other “significant conditions”.
that these conditions led to Billy Livermore’s death. The
BRB concluded that the ALJ’s decision was based mostly
on a negative inference and could not be sustained.
On remand, the ALJ throughly reviewed the conflicting
medical opinions. Drs. Browne, Houser, and Jones found
that Billy Livermore’s death was due, at least in part, to
pneumoconiosis. 2 The other physicians, Drs. Tuteur,
Kleinerman, Naeye, Caffrey, and Fino, concluded that
pneumoconiosis did not cause or hasten Billy Livermore’s
death. After examining the evidence, the ALJ found that
Drs. Fino and Tuteur’s opinions were entitled to greater
weight because of their “outstanding qualifications in
the area of pulmonary medicine”. Furthermore, the ALJ
stated that the evidence did not “prove” Livermore’s death
was due to pneumoconiosis. Thus, the ALJ denied benefits,
and, on appeal, the BRB affirmed.
ANALYSIS
A. Standard of Review
Maxine Livermore appeals the BRB’s order affirming
the ALJ’s decision denying benefits. Although, Maxine
appeals the BRB’s final order, we review the conclusions
of the ALJ to determine if the ruling is supported by
substantial evidence and in accordance with the law. See
Peabody Coal Co. v. Director, Office of Workers’ Compensa-
tion Programs, 972 F.2d 178, 180-81 (7th Cir. 1992); Arnold

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No. 01-3986 5
v. Peabody Coal. Co., 41 F.3d 1203, 1206 (7th Cir. 1994).
“Substantial evidence is ‘such relevant evidence as a rea-
sonable mind might accept as adequate to support a con-
clusion.’ ” Consolidation Coal Co. v. Office of Workers’ Com-
pensation Programs, 54 F.3d 434, 435-36 (7th Cir. 1995)
(citations omitted). To determine if there is adequate evi-
dence to support the ALJ’s conclusion we review the en-
tire record, but we will not substitute our judgment in place
of the ALJ’s or reweigh evidence. Id.
B. Substantial Evidence
The burden of establishing the miner died as a result of
pneumoconiosis or that pneumoconiosis substantially con-
tributed to the miner’s death is on the claimant. 20 C.F.R.
§ 718.205(a). A claimant can recover benefits if “the death
was caused by complications of pneumoconiosis.” 20 C.F.R.
§ 718.205(c)(2). The fact that pneumoconiosis caused or
contributed to the cause of death need be established by
“competent medical evidence.” 20 C.F.R. §§ 718.205(b)(1),
(c)(1).
Amax Coal argues that pneumoconiosis did not cause
or was not a substantial cause of Billy Livermore’s death.
While Maxine Livermore concedes that pneumoconi-
osis did not directly cause Billy Livermore’s death, she re-
lies on the definition of “legal pneumoconiosis” in 20
C.F.R. § 718.201(a)(2), asserting that the exposure to coal
mine dust exacerbated Billy’s asthma and was a subs-
tantially contributing factor in his death. See 20 C.F.R.
§ 718.205(c)(2). In what is akin to a proximate cause chain-
of-events argument in torts, Maxine asserts that pneumo-
coniosis caused Billy’s asthma and other respiratory prob-
lems. The respiratory problems, in turn, caused Billy to
be treated with steroids. The steroid treatment, in turn,
exacerbated his bleeding ulcer and led to the esopha-
geal and stomach bleeding which ultimately and directly
caused Billy Livermore’s death.

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6 No. 01-3986
3 Nonetheless, Congress could choose to provide black lung ben-
efits to any miner who has any respiratory aliments after working
in a mine, but, unfortunately, the statute and regulations cur-
rently require coal workers’ pneumoconiosis cause or be a sub-
stantial contributing cause or factor in the miner’s death.
Maxine Livermore’s causal chain-of-events argument, if
proven, would entitle her to benefits because Billy Liver-
more’s pneumoconiosis condition hastened his death. See
20 C.F.R. § 718.205(c)(2); 20 C.F.R. § 718.201(a)(2); Pea-
body Coal Co. v. Director, OWCP, 972 F.2d at 183-84 (hold-
ing applicable the Director’s interpretation of 20 C.F.R.
§ 718.205(c)(2), to “mean anything that has ‘an actual or
real share in producing an effect and that any condition
which hastens death fits this description.’ ”) (citations omit-
ted). 3 However, the ALJ ruled that there was insufficient
proof that pneumoconiosis caused the respiratory problems,
which cuts off Maxine’s chain-of-events argument at the
beginning. The ALJ, on remand, felt the conflicting ex-
pert evidence showed that pneumoconiosis was not the
cause or substantial cause of death.
Almost the entirety of Maxine Livermore’s argument
goes to the weight of the evidence; that the ALJ credited
Amax’s experts over her own experts. However, Maxine
does point to additional problems with the ALJ’s deci-
sion and some of the evidence. She notes that the overall
diagnosis of Amax’s experts are still in conflict with the
ALJ’s undisturbed conclusions that Billy Livermore did, in
fact, have pneumoconiosis. Hence, she argues, the ALJ
should have disregarded Amax’s experts’ opinions be-
cause they are in direct conflict with the ALJ’s initial
finding. Stated another way, Maxine argues that Amax’s
experts’ conclusions that Billy Livermore’s death was not
attributable in any way to pneumoconiosis, cannot be
credited because the experts first concluded that Billy
Livermore did not even have pneumoconiosis. In addi-

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No. 01-3986 7
tion, Maxine Livermore asserts that the ALJ agreed with
her the first time, but after being reversed by the BRB
simply agreed with the BRB’s assessment of the evidence.
Amax’s experts’ opinions are in partial conflict with the
ALJ’s and BRB’s undisturbed finding that Billy Livermore
did have clinical pneumoconiosis. And Amax’s experts’ ini-
tial conclusions, that Billy Livermore did not have pneu-
moconiosis, probably influenced their later conclusions
that Billy’s death was not caused by pneumoconiosis. How-
ever, several of the experts did assume, for part of their
opinions, that Billy Livermore did have pneumoconiosis
and still concluded that it did not cause his death. Fur-
thermore, as Amax notes, Billy Livermore had numer-
ous other substantial health problems, many of which are
not related to asthma, breathing, or pneumoconiosis. Al-
though, the ALJ appears to have flip-flopped after the BRB
reversed the original award, “the weighing of expert opin-
ions is the province of the ALJ, not this court.” Peabody
Coal Co. v. Shonk, 906 F.2d at 269. Hence, in a case of duel-
ing experts such as this one, the ALJ, after a thorough and
careful consideration of all the evidence, can conclude that
the opinion of certain experts are more authoritative than
other experts. Nevertheless, the ALJ must articulate a
reason and provide support for favoring one opinion over
another. See Peabody Coal Co. v. Director, OWCP, 972 F.2d
at 181-82.
Amax’s experts and the third-party experts opined
that Billy Livermore’s death was not caused by or con-
tributed to by pneumoconiosis. In contrast, only Dr. Jones,
Maxine Livermore’s expert, positively concluded that pneu-
moconiosis was a significant factor in Billy Livermore’s
death. The other two experts listed pneumoconiosis as one
of the contributing causes. The ALJ gave more weight to the
opinions of Amax’s doctors, finding they had superior qual-
ifications (specialities in pulmonary medicine) and that
their opinions were more specific and well supported. The

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8 No. 01-3986
ALJ also found that the expert opinions to the contrary
were not entirely reliable based on all the evidence and
conflicting opinions.
This careful weighing of the evidence demonstrates that
the ALJ’s finding is supported by substantial evidence.
See id. at 180-81. To say that we might have reached a
different conclusion is beside the point because it is the
province of the ALJ to weigh expert opinions. See Peabody
Coal Co. v. Shonk, 906 F.2d at 269. The ALJ did not sim-
ply countenance Amax’s experts’ opinions because they
were more numerous, which would be improper. Instead,
the ALJ reviewed all the opinions, qualifications of the
experts, and resolved the conflicting reports in a thorough
and logical manner.
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-25-02

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