On Petition for Review of a Decision and Order of the Benefits Review Board, United States Department of Labor, BRB Docket No. 86-2016 BLA.
Sloviter and Becker, Circuit Judges, and Pollak,*fn* District Judge.
Petitioner appeals from a decision of the Department of Labor's Benefits Review Board ("BRB") that affirmed an administrative law judge's denial of her claim under the Black Lung Benefits Act (the "Act"), 30 U.S.C. § 901 et seq. Petitioner seeks benefits for the disability and death of her husband, William Glenn Kline. Under the Act's regulations, petitioner is entitled to benefits if her husband "died due to or while totally . . . disabled by pneumoconiosis," a disease related to exposure to coal dust. 20 C.F.R. § 727.201. The regulations create a rebuttable presumption that the disability and death of a miner were due to pneumoconiosis in cases in which the miner was employed in coal mining for at least ten years and had a totally disabling respiratory or pulmonary ailment. 20 C.F.R. § 727.203.*fn1 Petitioner's husband worked as a coal miner for over ten years and suffered from, and later died of, a totally disabling pulmonary ailment. Hence, petitioner was entitled to the presumption set forth in 20 C.F.R. 727.203(a). The issue raised on appeal is whether there is substantial evidence in the record to support the administrative law judge's finding that this legal presumption was rebutted.
William Glenn Kline began working in the mines in 1932. Despite a diagnosis of pulmonary tuberculosis in 1948, he continued to work intermittently in the mines until he became completely disabled a decade later. He died in 1965 at the age of forty-eight. According to his death certificate, Mr. Kline died of a "Pulmonary Hemorrhage due to Bronchiectasis due to Pulmonary TB, far advanced, quiescent." App. at 35. The sparse medical record of Mr. Kline's illness consists of: (1) the six pages of records from Mr. Kline's approximately eight (non-continuous) years of hospitalization at the Martinsburg, West Virginia, Veterans Administration Hospital; and (2) the opinions of two non-treating physicians, William V. Dzurek, M.D., who testified at petitioner's 1974 administrative hearing, and Bernard P. McQuillan, M.D., a Medical Consultant to the Department of Labor who wrote a one-page opinion letter on petitioner's claim dated May 19, 1980.
Petitioner filed her claim for benefits in 1970 under the Black Lung Benefits Act. The Social Security Administration reviewed and denied the claim, and petitioner requested a hearing. Pursuant to that hearing -- the transcript of which is not available -- Administrative Law Judge Alan Neff entered a Hearing Decision denying benefits on December 10, 1974. Judge Neff's decision rested in part on the finding that Mr. Kline was employed "less than ten years in coal mine employment as defined in the Act," with the result that his death did not give rise to the presumption of pneumoconiosis. 1974 ALJ Opinion, App. at 20.
Subsequent amendments to the Act permitted reconsideration of petitioner's claim under an expanded definition of the type of work that qualifies a worker as a "miner" for the purposes of the Act.*fn2 Under these amendments, Mr. Kline had more than ten years employment as a "miner," and thus petitioner was eligible for the legal presumption of pneumoconiosis established by 20 C.F.R. 727.203(a). Nonetheless, after additional review under the amended Act,*fn3 the Social Security Administration and the Department of Labor again denied petitioner's claim. The Department of Labor subsequently referred the claim to the Office of Administrative Law Judges in 1984.
Administrative Law Judge Steven Halpern held a hearing and issued a Decision and Order Denying Benefits on July 11, 1986. Judge Halpern acknowledged that Mr. Kline had over ten years of qualifying employment in coal mining.*fn4 On the basis of that finding, as well as evidence that Mr. Kline suffered from a totally disabling pulmonary ailment,*fn5 Judge Halpern determined that petitioner was entitled to the presumption that pneumoconiosis caused Mr. Kline's disability and death.
However, Judge Halpern identified two evidentiary bases in the record to support rebuttal of the presumption pursuant to both 20 C.F.R. 727.203 (b) (3) and (4).*fn6 First, Judge Halpern inferred that Mr. Kline did not have any disease related to his coal mine employment. Judge Halpern drew this inference from the alleged absence of any diagnosis in the medical records explicitly linking Mr. Kline's condition to his years in the mines. Second, Judge Halpern found that Dr. McQuillan's 1980 opinion letter established that Mr. Kline did not have pneumoconiosis.
The Benefits Review Board ("BRB") affirmed Judge Halpern's decision, finding that the judge had "properly credited the opinion of Dr. McQuillen [sic]." BRB Opinion, App. at 6. Based on this evidence, the BRB concluded that the presumption of disability and death due to pneumoconiosis was rebutted under subsection 727.203(b) (3).*fn7 Petitioner then filed this application for review of the BRB's decision pursuant to 30 U.S.C. § 932(a) (incorporating 33 U.S.C. § 921(c)).
On reviewing a decision of the BRB, we are (1) to defer to those factual findings determined by us to be supported by substantial evidence, and (2) to exercise plenary review over the BRB's conclusions of law. See Gonzales v. Director Office of Workers' Compensation Programs, 869 F.2d 776, 778-79 (3d Cir. 1989); Hillibush v. United States Department of Labor, 853 F.2d 197, 202 (3d Cir. 1988). Petitioner contends that there is not substantial evidence to support the finding that the presumption of disability and death from pneumoconiosis was rebutted. In addition, petitioner contends that Judge Halpern and the BRB erred as a matter of law in failing to apply the ...