Billie THOMPSON, Patricia Brown, Plaintiffs-Appellants, v. GLADES COUNTY BOARD OF COUNTY COMMISSIONERS, Glades County School Board, Holly Whidden Green, Glades County Supervisor of Elections, Defendants-Appellees, Robert Giesler, et al., Defendants.
No. 05-10669
United States Court of Appeals, Eleventh Circuit
Nov. 27, 2007
508 F.3d 975
Plaintiff does not challenge the district court‘s conclusion that his other claims all depend upon his claim for reformation. Because we conclude that Plaintiff is not entitled to any relief on that claim, we AFFIRM the district court‘s grant of summary judgment in favor of Defendant.
Neil Bradley, ACLU Foundation, Inc., Atlanta, GA, for Plaintiffs-Appellants.
Gavin Wallace O‘Brien, Gavin W. O‘Brien, P.A., Holmes Beach, FL, for Defendants-Appellees.
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.
BY THE COURT:
A member of this Court in active service having requested a poll on the suggestion of rehearing en banc and a majority of the judges in this Court in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the above cause shall be reheard by this court en banc. The previous panel‘s opinion is hereby VACATED.
THE PITTSBURG & MIDWAY COAL MINING CO., Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondent.
No. 06-15141
United States Court of Appeals, Eleventh Circuit
Nov. 28, 2007
508 F.3d 975
Helen H. Cox, Patricia M. Nece, U.S. Dept. of Labor, Washington, DC, Jonathan Coleman Sapp, The Sapp Law Firm, LLC, Jasper, AL, for Respondents.
MARCUS, Circuit Judge:
The Pittsburg & Midway Coal Mining Company (“P & M“) petitions for review of a decision of the Benefits Review Board affirming an administrative law judge‘s award of survivor‘s benefits under the Black Lung Benefits Act (the “BLBA” or the “Act“),
I.
A.
An understanding of the relevant statutory and regulatory framework as well as
miner is suffering or suffered from a chronic dust disease of the lung which (A) when diagnosed by chest roentgenogram, yields one or more large opacities (greater than one centimeter in diameter) and would be classified in category A, B, or C in the International Classification of Radiographs of the Pneumoconioses by the International Labor Organization, (B) when diagnosed by biopsy or autopsy, yields massive lesions in the lung, or (C) when diagnosis is made by other means, would be a condition which could reasonably be expected to yield results described in clause (A) or (B) if diagnosis had been made in the manner prescribed in clause (A) or (B) ....
The Secretary has, in turn, incorporated Section 411(c)(3)‘s “irrebuttable presumption” into the black lung regulations at
[D]eath will be considered to be due to pneumoconiosis if any of the following criteria is met:
(1) Where competent medical evidence establishes that pneumoconiosis was the cause of the miner‘s death, or
(2) Where pneumoconiosis was a substantially contributing cause or factor
leading to the miner‘s death or where the death was caused by complications of pneumoconiosis, or (3) Where the presumption set forth at § 718.304 is applicable.
(4) However, survivors are not eligible for benefits where the miner‘s death was caused by a traumatic injury or the principal cause of death was a medical condition not related to pneumoconiosis, unless the evidence establishes that pneumoconiosis was a substantially contributing cause of death.
B.
This case arises from the death of Clyde Cornelius, a retired coal miner. Mr. Cornelius worked in coal mines for approximately twenty-five years, ending in 1987. He died in 1999 at the age of 74. His death certificate listed congestive heart failure as the immediate cause of death and anemia as a contributing cause of death; pneumoconiosis was not mentioned.2
Following Mr. Cornelius‘s death, his widow, Dorothy Cornelius, filed a claim for survivor‘s benefits under the Act. After identifying P & M as the responsible employer, the Department of Labor (“DOL“) adjudication officer issued a proposed decision and order finding that Ms. Cornelius was entitled to benefits under the Act. P & M contested the proposed decision and requested a formal hearing before an administrative law judge (“ALJ“).
At the formal hearing conducted by the ALJ, Ms. Cornelius relied on the autopsy report and deposition testimony of Dr. Mary Louise Guerry-Force, the board-certified pathologist who performed an autopsy of Mr. Cornelius‘s lungs. According to the autopsy report, Dr. Guerry-Force‘s gross examination revealed the following:
The pleural surfaces reveal moderate subpleural anthracotic type pigment deposition bilaterally. Multiple grey black subpleural nodules measuring from 0.1 up to 0.3 cm are noted throughout all of the lobes. In addition, the right upper lobe reveals multiple, irregular, gray black areas of induration measuring up to 1.2 cm.
(DX 11, Autopsy Report at 2).3 The autopsy report also stated that on microscopic examination Dr. Guerry-Force found that
[s]ections of the lungs demonstrate a focally thickened pleura with moderate subpleural anthracotic type pigment deposition. Multiple scattered fibroanthracotic nodules measuring up to 1.2 cm are seen. The nodular lesions consist of dense collagen and granular pigment; many are stellate in appearance. Their distribution is widespread: pleural based; interstitial; perivascular; and adjacent to the walls of respiratory bronchioles. These microscopic features are consistent with a complicated pneumoconiosis, as defined by the Black Lung Program Guidelines (U.S. Department of Labor—8/92).
(Id.). In a section titled “Final Anatomical Diagnoses,” the autopsy report listed, among other things, “[f]ibroanthracotic nodules (bilateral lungs) measuring up to 1.2 cm, compatible with complicated pneumoconiosis, as defined by the Black Lung
During her deposition, Dr. Guerry-Force said that the “Black Lung Program Guidelines” she referred to in her autopsy report had been sent to her by the DOL‘s Employment Standards Administration during her evaluation of an earlier black lung case. The guidelines, which are contained in a letter dated August 11, 1992 from the Employment Standards Administration to Dr. Guerry-Force, state in pertinent part
The presence of complicated pneumoconiosis is established if:
1. The gross examination of the cut lung revealed a marked degree of simple pneumoconiosis and progressive massive fibrosis (massive lesions of the lung or large, dense fibrous masses) was present; and
2. The microscopic examination revealed fibrotic mass or masses composed of carbon deposits and interlaced by bundles of dense fibrous tissues.
(DX 11 at 2). Dr. Guerry-Force explained that her autopsy findings satisfied the guidelines’ requirements for “complicated pneumoconiosis because of the size and extent of the nodules present.” (DX 11, Guerry-Force Dep. at 10). Specifically, her gross examination
revealed a marked degree of simple pneumoconiosis and ... larger areas of fibrosis that were one centimeter or greater in dimension, and that correlates with the ILO pulmonary lung classification for complicated, the larger nodules .... the microscopic examination also had the fibrotic masses.
(Id. at 11). Finally, Dr. Guerry-Force also averred that pathologists are best able to make a diagnosis of complicated pneumoconiosis when they perform both a gross and microscopic examination because “the things you see grossly are not ... necessarily in toto represented on the slides ....” (Id. at 13). In other words, a gross examination allows a pathologist to “get an impression of the disease of the lung in toto ... that one may not fully appreciate from the microscopic.” (Id. at 15).
To counter Dr. Guerry-Force‘s opinion, P & M relied on the expert report of Dr. P. Raphael Caffrey and the expert report and testimony of Dr. Ben V. Branscomb. Because he did not perform the autopsy, Dr. Caffrey‘s opinion was limited to reviewing the autopsy slides prepared by Dr. Guerry-Force. Dr. Caffrey reported that the largest nodule he could find on the slides was 0.9 centimeters, and he, accordingly, concluded that Mr. Cornelius did not have complicated pneumoconiosis even under the standard applied by Dr. Guerry-Force. Dr. Branscomb agreed with Dr. Caffrey, opining that Mr. Cornelius had only simple, not complicated, pneumoconiosis. He also testified that the term “massive lesions” usually refers to complicated pneumoconiosis, and that “massive lesions” are generally the “size of a chicken egg,” “the size of one-third of one lung,” or “the size of a tennis ball.” (Hearing Tr. at 40). Finally, Dr. Branscomb acknowledged that autopsy is more effective “by far” than x-rays for diagnosing coal workers’ pneumoconiosis. (Id. at 44).
Based on Dr. Guerry-Force‘s opinion, the ALJ concluded that Ms. Cornelius was entitled to the irrebuttable presumption of causation provided in
On remand, the case was assigned to a new ALJ. After reviewing the record of the original formal hearing, the ALJ concluded that Dr. Guerry-Force‘s testimony was the most persuasive and that her testimony satisfied the requirements of
P & M then timely petitioned this Court to review the BRB‘s decision. We have jurisdiction over the petition because Mr. Cornelius worked as a coal miner in Alabama. See Slatick v. Director, OWCP, 698 F.2d 433, 434 (11th Cir.1983). The Director of the Office of Workers’ Compensation Programs, U.S. Department of Labor (“Director“) is a named respondent in these proceedings, see
II.
The standard of review applied to the BRB‘s affirmance of an ALJ‘s decision is by now well-established:
Decisions of the ALJ are reviewable only as to whether they are in accordance with law and supported by substantial evidence in light of the entire record. This deferential standard of review binds both the BRB and this Court. Because this Court applies the same standard of review to ALJ decisions as does the BRB, our review of BRB decisions is de novo. Substantial evidence has been defined as more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion .... [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. Thus, although the case comes to us from the BRB, we begin our analysis by reviewing the decision of the ALJ.
U.S. Steel Mining Co. v. Director, OWCP, 386 F.3d 977, 984 (11th Cir.2004) (internal quotation marks and citations omitted).
To receive survivor‘s benefits, a claimant “must establish that [the miner] [1] had pneumoconiosis, [2] that his pneumoconiosis was caused by coal mine employment, and [3] that his death was due to the disease.” Bradberry v. Director, OWCP, 117 F.3d 1361, 1365 (11th Cir.1997); see also
As we have already observed, the black lung regulations provide three distinct
P & M argues that Ms. Cornelius is not entitled to the irrebuttable presumption for two reasons. First, P & M says that because Mr. Cornelius‘s “principal cause of death was a medical condition not related to pneumoconiosis,” Ms. Cornelius must show that pneumoconiosis was a “substantially contributing cause of death” under
A.
To begin with, the regulation embodied in
This seeming conflict is resolved easily by the plain language of the Black Lung Benefits Act. Section 411(c)(3) of the Act, which
P & M‘s interpretation would yield precisely that unacceptable result. Thus, for example, in this case, it is undisputed that Mr. Cornelius died from congestive heart failure, “a medical condition not related to pneumoconiosis,” and it is undisputed that pneumoconiosis was not in fact a “substantially contributing cause of death.” According to P & M‘s interpretation, Ms. Cornelius is not entitled to benefits even if she otherwise meets the requirements of
Finding no room to maneuver in the text of
Quite simply, once a claimant has established that the requirements of
B.
Having failed to convince us that the plain language of the statute can be ignored, P & M also argues that Dr. Guerry-Force‘s expert opinion is an insufficient foundation to establish any of the irrebuttable presumption‘s three medical criteria. We remain unpersuaded.
Under both the relevant statute (
The parties agree that Ms. Cornelius did not produce x-ray evidence sufficient to satisfy
Our analysis begins and, as it turns out, ends with
The BLBA was originally passed as Title IV of the Federal Coal Mine Health and Safety Act of 1969 (the “1969 Act“), Pub.L. No. 91-173, 83 Stat. 792. (Title IV was renamed the Black Lung Benefits Act in 1972.) Included in the legislative history of the 1969 Act is a report of the Surgeon General on coal workers’ pneumoconiosis. Summarizing that report, the Supreme Court has explained that the medical community generally classifies pneumoconiosis as being either “simple” or “complicated,” with the latter form generally being more debilitating and producing more pronounced pathological effects:
Simple pneumoconiosis, ordinarily identified by X-ray opacities of a limited extent, is generally regarded by physicians as seldom productive of significant respiratory impairment. Complicated pneumoconiosis, generally far more serious, involves progressive massive fibrosis as a complex reaction to dust and other factors (which may include tuberculosis or other infection), and usually produces significant pulmonary impairment and marked respiratory disability. This disability limits the victim‘s physical capabilities, may induce death by cardiac failure, and may contribute to other causes of death.
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976) (footnotes omitted).
The House-passed version of the bill that became the 1969 Act compensated only the survivors of miners who suffered from complicated (as opposed to simple) pneumoconiosis, and that bill defined the term “complicated pneumoconiosis” using specific medical criteria. See H. Rep. No. 91-563, reprinted in 1969 U.S.C.C.A.N. 2503, 2542 (“[T]his section provides for payments of compensation ... in respect of the death of an individual who, at the time of his death, was suffering from complicated pneumoconiosis ....“). In conference, all references to “complicated pneumoconiosis” were eliminated and coverage was expanded to all miners who were totally disabled due to “pnuemoconiosis” and to the survivors of all miners who died due to “pneumoconiosis,” which the conference bill defined simply as “a chronic dust disease of the lung arising out of employment in an underground coal mine.” Pub.L. No. 91-173, § 402(b), 83 Stat. 793. The House‘s definition of “complicated pneumoconiosis” was not ignored entirely, however. Instead, the conference bill incorporated the House‘s definition of “complicated pneumoconiosis” (but not the term itself) into the newly created
Likewise, when discussing causation under the BLBA, the Supreme Court and this Court have equated the criteria embodied in
Similarly, in Alabama By-Products Corp. v. Killingsworth, this Court noted that “Section 411(c)(3) raises an irrebuttable
Finally, the regulatory history of the black lung regulations discusses
Taken together, the legislative history of the Act, the case law, and the regulatory history of the black lung regulations suggest that
The question, then, boils down to this: whether Dr. Guerry-Force applied proper medical standards in concluding that the numerous lesions in Mr. Cornelius‘s lungs, which included at least one lesion as large as 1.2 centimeters in diameter, constituted complicated pneumoconiosis. Although the proper standard for diagnosing complicated pneumoconiosis on autopsy is far from clear, we conclude that the ALJ did not commit reversible error in accepting her diagnosis.
At present, the DOL has promulgated no specific standards for diagnosing complicated pneumoconiosis on autopsy. As recently as 2000, the DOL rejected a commentator‘s suggestion that it adopt a two-centimeter minimum size for “massive lesions” because such a standard was not “universally accepted” as being “necessary for a diagnosis of complicated pneumoconiosis.”
Although this approach may present the possibility of conflicting results on similar facts, surely it is one reasonable way of dealing with the demonstrable lack of any medical consensus on this issue. Moreover, the Supreme Court has explained the justification for granting deference to the Secretary‘s implementation of the Act this way:
The [BLBA] has produced a complex and highly technical regulatory program. The identification and classification of medical eligibility criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns. In those circumstances, courts appropriately defer to the agency entrusted by Congress to make such policy determinations.
Pauley, 501 U.S. at 697. “Further,” the Supreme Court has observed, “the delegation [to the Secretary] was made with the intention that the program evolve as technological expertise matured” so that the Secretary could “incorporate within his regulations ... to the extent feasible the advances made by medical science in the diagnosis and treatment of pneumoconiosis ....” Id. at 697-98 (quoting S.Rep. No. 95-209 at 13 (1977)) (ellipses in original). Based on the regulatory history of the black lung regulations and the Director‘s position in this case, it appears that medical science has not yet advanced to the point of developing a precise, objective standard for diagnosing complicated pneumoconiosis on autopsy. Because of the lack of consensus, the expertise undeniably required to formulate standards for medical causation, the policy-laden judgments inherent in establishing medical eligibility criteria in black lung cases, and the deference we owe to the Secretary‘s implementation of the Black Lung Benefits Act, we accept the Secretary‘s case-by-case approach for determining whether a miner‘s autopsy results support a diagnosis of complicated pneumoconiosis. See Pauley, 501 U.S. at 698-99 (holding that the Secretary‘s implementation of the BLBA‘s requirements was entitled to deference); see also U.S. Steel Mining Co., 386 F.3d at 988-89 (deferring to the Director‘s interpretation of the black lung regulations); Bradberry, 117 F.3d at 1366-67 (same); Lollar v. Ala. By-Products Corp., 893 F.2d 1258, 1262 (11th Cir.1990) (“We owe deference ... to the Director ... as the relevant policymaker in this case ....“).
Accordingly, we conclude that, until the Secretary provides further guidance on this matter,
In our view, Blankenship‘s equivalency requirement has at least four basic shortcomings. First, it conflates the x-ray criteria in
For all of these reasons, we conclude that
In sum, we agree with the Benefit Review Board‘s conclusion that substantial evidence supports the ALJ‘s finding that Ms. Cornelius is entitled to an irrebuttable presumption of causation under
Notes
There is an irrebuttable presumption that a miner is totally disabled due to pneumoconiosis, that a miner‘s death was due to pneumoconiosis or that a miner was totally disabled due to pneumoconiosis at the time of death, if such miner is suffering or suffered from a chronic dust disease of the lung which:
(a) When diagnosed by chest X-ray (see
(1) The ILO-U/C International Classification of Radiographs of the Pneumoconioses, 1971, or subsequent revisions thereto; or
(2) The International Classification of the Radiographs of the Pneumoconioses of the International Labour Office, Extended Classification (1968) (which may be referred to as the “ILO Classification (1968)“); or
(3) The Classification of the Pneumoconioses of the Union Internationale Contra Cancer/Cincinnati (1968) (which may be referred to as the “UICC/Cincinnati (1968) Classification“); or
(b) When diagnosed by biopsy or autopsy, yields massive lesions in the lung; or
(c) When diagnosed by means other than those specified in paragraphs (a) and (b) of this section, would be a condition which could reasonably be expected to yield the results described in paragraph (a) or (b) of this section had diagnosis been made as therein described: Provided, however, That any diagnosis made under this paragraph shall accord with acceptable medical procedures.