Petition for Review of an Order of the Benefits Review Board.
Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.
POSNER, Circuit Judge. The Old Ben Coal Company asks us to set aside an order of the Benefits Review Board of the Department of Labor, directing the company to pay benefits to Mary Prewitt, the widow of a coal miner, under the Black Lung Benefits Act, which is Title IV of the Federal Coal Mine Health and Safety Act, as amended, 30 U.S.C. §§ 901-960. An administrative law judge denied benefits, but his decision was reversed by the Board as unsupported by substantial evidence; and the first question we must consider concerns our standard of judicial review when the Board has reversed the administrative law judge on that ground.
The Black Lung Benefits Act, in 30 U.S.C. § 932(a), incorporates by reference the judicial review provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 921(c); and although section 921(c), in authorizing judicial review, does not indicate what the standard of review is, there is an established standard in black lung cases in this circuit, as well as every other circuit that has considered the matter. It is whether the court of appeals believes that the administrative law judge's decision was supported by substantial evidence; if it was, then the Benefits Review Board's decision reversing the administrative law judge must itself be reversed, even if that decision could also be said to be supported by substantial evidence. See, e.g., Consolidation Coal Co. v. Chubb, 741 F.2d 968, 971 (7th Cir. 1984); Kalaris v. Donovan, 225 U.S. App. D.C. 134, 697 F.2d 376, 382-83 (D.C. Cir. 1983); Walker v. Universal Terminal & Stevedoring Corp., 645 F.2d 170, 172-73 (3d Cir. 1981). The Fourth Circuit once rejected this standard, believing that the issue should be whether the Benefit Review Board's decision, not the administrative law judge's decision, is supported by substantial evidence; but it has now lined up with the other circuits. See, e.g., Wilson v. Benefits Review Board, 748 F.2d 198, 199 (4th Cir. 1984).
Granted, the prevailing standard can be questioned on three grounds:
1. All the cases adopting it rely ultimately on a decision based on another and distinguishable system of judicial review, Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797, 799 (7th Cir. 1977).
2. The statute governing judicial review of decisions of the Benefits Review Board does not suggest that the scope of review is as broad as our standard implies -- in fact, as we have said, the statute is silent on the standard of review.
3. In cases under section 921(c) that do not involve black lung benefits, this court asks whether the administrative review board's decision, not the administrative law judge's decision, is supported by substantial evidence. See Strand v. Hansen Seaway Service, Ltd., 614 F.2d 572, 574 (7th Cir. 1980).
Nevertheless we think Chubb was correctly decided. In the administrative process as usually conducted, the agency itself (corresponding to the Benefits Review Board in this case) exercises a power of plenary or de novo review of the administrative law judge's factfindings. That is, the agency makes its own findings; and if they are supported by substantial evidence, we must uphold them. But in a black lung case, as in other cases to which the procedures of the Longshoremen's and Harbor Workers' Compensation Act apply, the Benefits Review Board does not have the power of de novo review of factfindings. The Act provides that "the findings of fact in the [administrative law judge's] decision under review . . . shall be conclusive if supported by substantial evidence in the record considered as a whole." 33 U.S.C. § 921(b)(3); see also 20 C.F.R. § 802.301. Our decision in Strand relied on two Ninth Circuit decisions which had, as the Ninth Circuit later acknowledged, "overlooked the actual devision of functions between the administrative law judge and the [Benefits Review] Board." Bumble Bee Seafoods v. Director, Office of Workers' Compensation Programs, 629 F.2d 1327, 1329 (9th Cir. 1980). When we review a decision by the Benefits Review Board reversing an administrative law judge's decision as unsupported by substantial evidence, our task is to decide whether the Board applied the substantial-evidence rule correctly -- which means, decide whether the administrative law judge's factfindings are supported by substantial evidence. The Board's decision is highly pertinent to this question; it may explain convincingly where the administrative law judge went wrong. But the decision is not itself a source of findings to which we are required or permitted to defer. The findings are made by the administrative law judge, and if they are supported by substantial evidence the Board may not reject them and we must reverse the Board if it does. We need not consider what if any vitality our decision in Strand retains in cases that do not involve black lung benefits.
Although a majority of this panel (Chief Judge Cummings and myself) reaffirms the Cobb standard for the reasons stated in this opinion, a different majority (Chief Judge Cummings and Judge Cudahy) believes that the standard requires that the administrative law judge's decision be reversed and the decision of the Benefits Review Board affirmed, for reasons stated in Judge Cudahy's opinion. I disagree, for the reasons that follow.
There is a statutory presumption, which Prewitt's widow is entitled to invoke, that a coal miner who died before March 1977 after having worked for more than 25 years in a coal mine was at the time of his death at least partly disabled as a result of black lung disease and is therefore entitled to benefits. See 30 U.S.C. § 921(c)(5); 20 C.F.R. § 727.204(c). But the administrative law judge found that this presumption was rebutted -- that the coal company had proved that Prewitt did not have black lung disease at all, or if he did have it was not even partially disabled by it, see 20 C.F.R. § 727.204(c) -- and if either finding is supported by substantial evidence the Benefits Review Board must be reversed.
Prewitt died of heart disease, from which he had long suffered, and because of which he had spent a lot of time in hospitals and been examined many times in the years leading up to his death. Despite much opportunity in these examinations for doctors to diagnose possibly disabling black lung disease, the administrative law judge found on evidence he considered cumulatively persuasive that Prewitt had never been found by doctors to have disabling black lung disease. An X-ray taken shortly before his death was negative for black lung disease. An arterial gas study showed some breathing problems but not enough to meet the standard for disability under the black lung program. Two hospital discharge reports failed to mention black lung disease -- as did Prewitt's wife, in the following exchange:
Other than those two heart attacks that you told us about, are you aware of any other health problems that Mr. Prewitt had? A. Let me think -- his heart did steadily get worse. It would pertain to this heart. They called it heart failure.
Although this evidence is neither conclusive (Mrs. Prewitt is not a doctor) nor entirely free from ambiguity, it was for the administrative law judge, who had the considerable advantage over both the Benefits Review Board and us of having actually heard her testify, to interpret and weight her ...