Eastern Assoc Coal v. DOWCP ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EASTERN ASSOCIATED COAL
CORPORATION,
Petitioner,
v.
No. 99-1312
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
PEARL D. SCARBRO,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board.
(97-1811-BLA)
Argued: March 3, 2000
Decided: July 12, 2000
Before WILKINS, NIEMEYER, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Wilkins and Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Mark Elliott Solomons, ARTER & HADDEN, L.L.P.,
Washington, D.C., for Petitioner. Jeffrey Steven Goldberg, Office of
the Solicitor, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Respondent Director; Frederick Klein Muth,
HENSLEY, MUTH, GARTON & HAYES, Bluefield, West Virginia,
for Respondent Scarbro. ON BRIEF: Laura Metcoff Klaus, ARTER
& HADDEN, L.L.P., Washington, D.C., for Petitioner. Henry L.
Solano, Solicitor of Labor, Donald S. Shire, Associate Solicitor of
Labor for Black Lung Benefits, Christian P. Barber, Counsel for
Appellate Litigation, Office of the Solicitor, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respondent
Director.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
The Department of Labor's Benefits Review Board affirmed an
award of survivor's benefits to Pearl Scarbro under the Black Lung
Benefits Act, based on the administrative law judge's finding that
Scarbro successfully invoked the irrebuttable presumption under 30
U.S.C. § 921(c)(3) and 20 C.F.R. § 718.304 that the death of her hus-
band, a coal miner, was due to pneumoconiosis. Rejecting the coal
company's challenge on various grounds to the proper invocation of
the irrebuttable presumption, we affirm the award of benefits.
I
Delbert Scarbro worked as a coal miner for at least 26 years, end-
ing in 1973. He died in 1991, and according to his physician, the pri-
mary cause of his death was a cardiovascular accident, with coal
worker's pneumoconiosis as a significant condition contributing to
death. After Delbert Scarbro's death, his widow, Pearl Scarbro, filed
a claim for survivor's benefits under the Black Lung Benefits Act,
and the claim was referred to the Office of Administrative Law
Judges. Eastern Associated Coal Corporation ("Eastern Coal") agreed
that it was the "responsible operator" and therefore would be liable for
the payment of benefits if any were to be awarded to Scarbro. See 20
C.F.R. § 725.492. Eastern Coal also agreed that Delbert Scarbro had
pneumoconiosis and that he had 26 years of coal mine employment.
On the only open issue -- whether the miner died due to pneumoconi-
2
osis -- the administrative law judge ("ALJ") found that Scarbro suc-
cessfully invoked the irrebuttable presumption of 20 C.F.R.
§ 718.304. In awarding benefits, the ALJ concluded that both x-ray
evidence and autopsy evidence supported the invocation of the pre-
sumption.
The ALJ considered 20 readings by doctors of 14 x-rays made
between 1963 and February 7, 1991. The last x-ray was taken approx-
imately seven months before the miner's death. The x-rays taken
before 1970 were uniformly read as negative for pneumoconiosis. The
1970 x-ray was read once as positive and once as negative for simple
pneumoconiosis. Subsequent x-rays were consistently read as positive
for simple pneumoconiosis, and the February 7, 1991 x-ray was read
to reveal "complicated pneumoconiosis." This film was reviewed by
eight doctors, seven of whom read the film as positive for compli-
cated pneumoconiosis in that it showed one or more opacities larger
than one centimeter in diameter. The eighth reviewer observed "ex-
tensive pulmonary densities consistent with pneumoconiosis," but did
not elaborate by discussing the presence or absence of large opacities
or other indications of complicated pneumoconiosis.
The ALJ also considered an autopsy report prepared by Dr. Zarina
Rasheed. Upon gross examination, Dr. Rasheed found"advanced ath-
erosclerotic changes with no areas of total occlusion" in the coronary
arteries, and "many pneumoconiotic nodules" ranging "from 0.5 to 0.8
cm" within the lung parenchyma. Her microscopic examination
revealed "[p]rominent pneumoconiotic nodules . . . scattered all over
the pulmonary parenchyma. These range[d] in size from 0.5 cm to 1
cm." She also determined that the nodules "occup[ied] more than 50-
70% of the pulmonary parenchyma [causing] extensive damage to it.
Sections from the other areas of the lungs show[ed] thickening of the
pleurae with areas showing subpleural fibrosis and coal dust deposi-
tion." She diagnosed a number of pulmonary ailments and concluded:
The main disease in this patient was extensive obstructive
pulmonary disease which was caused mainly by panlobular
macronodular pneumoconiosis. Terminal events were con-
solidation pneumonia and aspiration pneumonitis which
added injury to already marginally functioning lungs. Other
3
contributory causes were coronary atherosclerosis, with
heart failure.
The ALJ also considered the opinions of Dr. Richard Naeye and
Dr. Jerome Kleinerman, who reviewed tissue slides from the autopsy.
In his September 1992 report, Dr. Naeye reviewed the autopsy report
and fifteen of the slides. He found that many of the deposits he
observed were "large enough to be classified as anthracotic micro-
nodules" and that some "reach 7-8 mm in diameter so they can be
classified as anthracotic macronodules." He diagnosed severe simple
coal worker's pneumoconiosis, and concluded that"[i]f the lung sec-
tions provided for my review are representative of the lungs as a
whole . . . [t]he pneumoconiosis may also have been severe enough
to have played an important role in his death."
Dr. Kleinerman, who reviewed medical records in addition to
autopsy tissue slides, characterized the miner's medical condition in
his September 1993 report as mild to moderate simple coal worker's
pneumoconiosis, but not complicated coal worker's pneumoconiosis.
Specifically, he stated, "The macular and nodular lesions vary from
0.3 cm to 1.7 cm in size. These lesions are considered to be within
the range of simple coal worker's pneumoconiosis." He also stated his
"opinion [that] Mr. Scarbro would have died as and when he did even
if he had not been exposed to any coalmine dust. His simple coal-
workers pneumoconiosis and simple nodular silicosis did not contrib-
ute [to] or hasten Mr. Scarbro's death or in any way compromise his
pulmonary function."
In January 1994, Dr. Naeye was asked to conduct a second review,
which he based on Scarbro's medical records and Dr. Kleinerman's
report. Dr. Naeye concluded that the tissue samples he had previously
examined could not in fact have been representative of the lungs as
a whole. He based this conclusion on the fact that Scarbro's exposure
to coal dust had ended in 1973, and his pulmonary functions were at
that time, and in 1980, determined to be normal. He stated that simple
coal worker's pneumoconiosis "rarely progresses to a more severe
disorder if a coal worker quits exposure to mine dust." Dr. Naeye ech-
oed Dr. Kleinerman's conclusion, saying that any pulmonary abnor-
malities exhibited by Scarbro "were never disabling in any way and
never hastened his death or contributed in any way to his death."
4
Finally, the ALJ considered the opinion of Dr. Joseph Renn, who
had reviewed the miner's medical records, but not the autopsy slides.
His June 1994 report stated that while Scarbro suffered from simple
coal worker's pneumoconiosis, "there was no ventilatory impairment
as demonstrated by physiologic studies performed over the years." Dr.
Renn determined "with a reasonable degree of medical certainty" that
Scarbro's death was not affected by his exposure to coal dust or by
his condition of pneumoconiosis.
In weighing the x-ray evidence, the ALJ noted that the earlier films
read negative for pneumoconiosis, while the later ones read positive.
He determined that this evidence showed a progressively deteriorating
condition over time and so gave determinative weight to the last x-
rays, taken in 1991. He also weighed the autopsy evidence presented
in the reports by Drs. Rasheed, Naeye, and Kleinerman. The ALJ
credited Dr. Rasheed's report as the most authoritative because she
had the "opportunity to see the miner's entire respiratory system, and
was the only doctor who commented on the amount of lung tissue
damaged by the pneumoconiosis." The ALJ read Dr. Rasheed's
report, which found nodules up to one centimeter in diameter over 50
to 70% of Scarbro's lungs, as establishing the existence of "massive
lesions," relying on a dictionary definition of"massive" as "extensive
and severe."
Having thus weighed the evidence before him, the ALJ concluded
that "both the x-ray and autopsy evidence [were] sufficient to invoke
the presumption, and there [was] no other evidence, such as a CAT
or CT scan, which would be probative under 20 C.F.R.§ 718.304(c)."
The Benefits Review Board affirmed the ALJ's award of benefits,
and Eastern Coal filed this petition for review.
II
Under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945, an eli-
gible claimant is entitled to survivor's benefits if the miner's death
was "due to" pneumoconiosis. 20 C.F.R. § 718.205. Section 921(c)(3)
of the Act creates an irrebuttable presumption that the death was due
to pneumoconiosis if (A) an x-ray of the miner's lungs shows at least
one opacity greater than one centimeter in diameter; (B) a biopsy
5
reveals "massive lesions" in the lungs; or (C) a diagnosis by other
means reveals a result equivalent to (A) or (B). 1 The condition
described by these criteria is frequently referred to as "complicated
pneumoconiosis," although that term does not appear in the statute.
See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 7, 11
(1976); Double B Mining, Inc. v. Blankenship, 177 F.3d 240, 242-43
(4th Cir. 1999); cf. 20 C.F.R. § 410.418 (employing same criteria in
defining "complicated pneumoconiosis" for Social Security pur-
poses).
While 30 U.S.C. § 921(c)(3) sets forth, in clauses (A), (B), and (C),
three different ways to establish the existence of statutory compli-
cated pneumoconiosis for purposes of invoking the irrebuttable pre-
sumption, these clauses are intended to describe a single, objective
condition. Otherwise, the three prongs would be describing different
conditions, leading to "the irrational result that the determination of
whether a miner has [statutory complicated pneumoconiosis] could
turn on the method of diagnosis rather than on the severity of his dis-
ease." Double B Mining, 177 F.3d at 243. Therefore, in applying the
standards set forth in each prong, "one must perform equivalency
determinations to make certain that regardless of which diagnostic
_________________________________________________________________
1 30 U.S.C. § 921(c)(3) provides in full:
If a 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 Pneumo-
conioses 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), then there shall be an
irrebuttable presumption that he is totally disabled due to pneu-
moconiosis or that his death was due to pneumoconiosis or that
at the time of his death he was totally disabled by pneumoconio-
sis, as the case may be.
The regulation implementing this statutory provision employs virtually
the same language. See 20 C.F.R. § 718.304.
6
technique is used, the same underlying condition triggers the irrebutt-
able presumption." Id.; see also Clites v. Jones & Laughlin Steel
Corp., 663 F.2d 14, 16 (3d Cir. 1981). And,"[b]ecause prong (A) sets
out an entirely objective scientific standard"-- i.e. an opacity on an
x-ray greater than one centimeter -- x-ray evidence provides the
benchmark for determining what under prong (B) is a"massive
lesion" and what under prong (C) is an equivalent diagnostic result
reached by other means. Double B Mining, 177 F.3d at 243.
Prongs (A), (B), and (C) are stated in the disjunctive; therefore a
finding of statutory complicated pneumoconiosis may be based on
evidence presented under a single prong. But the ALJ must in every
case review the evidence under each prong of § 921(c)(3) for which
relevant evidence is presented to determine whether complicated
pneumoconiosis is present. See Lester v. Director, OWCP, 993 F.2d
1143, 1145 (4th Cir. 1993) (A claimant is entitled to the benefit of the
§ 921(c)(3) "irrebuttable presumption not because he has provided a
single piece of relevant evidence, but because he has a ``chronic dust
disease of the lung,' commonly known as complicated pneumoconio-
sis. To make such a determination, the OWCP necessarily must look
at all of the relevant evidence presented"); see also 30 U.S.C.
§ 923(b) ("In determining the validity of claims under this part, all
relevant evidence shall be considered"); Island Creek Coal Co. v.
Compton, 211 F.3d 203, 208-09 (4th Cir. 2000). Evidence under one
prong can diminish the probative force of evidence under another
prong if the two forms of evidence conflict. Yet,"a single piece of
relevant evidence," Lester, 993 F.2d at 1145, can support an ALJ's
finding that the irrebuttable presumption was successfully invoked if
that piece of evidence outweighs conflicting evidence in the record.
Thus, even where some x-ray evidence indicates opacities that would
satisfy the requirements of prong (A), if other x-ray evidence is avail-
able or if evidence is available that is relevant to an analysis under
prong (B) or prong (C), then all of the evidence must be considered
and evaluated to determine whether the evidence as a whole indicates
a condition of such severity that it would produce opacities greater
than one centimeter in diameter on an x-ray. See Double B Mining,
177 F.3d at 243-44. Of course, if the x-ray evidence vividly displays
opacities exceeding one centimeter, its probative force is not reduced
because the evidence under some other prong is inconclusive or less
vivid. Instead, the x-ray evidence can lose force only if other evidence
7
affirmatively shows that the opacities are not there or are not what
they seem to be, perhaps because of an intervening pathology, some
technical problem with the equipment used, or incompetence of the
reader.
In this case, the ALJ considered evidence relevant to prongs (A)
and (B), and concluded that each prong was satisfied, entitling Scar-
bro to the § 921(c)(3) irrebuttable presumption. As to prong (A), the
ALJ gave "determinative weight" to the x-ray of February 7, 1991,
noting that seven doctors had read the x-ray to reveal opacities larger
than one centimeter. He therefore concluded that the February 1991
x-ray "clearly" meets the standard for invoking the irrebuttable pre-
sumption under prong (A). As to prong (B), the ALJ found that
autopsy evidence "clearly" revealed massive lesions, relying princi-
pally on the report of the autopsy prosector, Dr. Rasheed. The ALJ
noted Dr. Rasheed's findings that there were "[p]rominent pneumo-
coniotic nodules . . . scattered all over the pulmonary parenchyma"
and that the nodules had "invad[ed]" more than 50-70% of the lungs.
While the ALJ did not rely on the reports of Drs. Naeye and Kleiner-
man, who based their opinions on their review of histological slides
from the autopsy, to find the presence of massive lesions, the ALJ
noted that Dr. Naeye reported lesions as large as 0.8 centimeters and
that Dr. Kleinerman reported lesions as large as 1.7 centimeters. The
ALJ further noted that both doctors found a large number of lesions,
even though they concluded that the lesions were consistent with
"simple coal workers pneumoconiosis."
Although the analysis employed by the ALJ with respect to prong
(B) was incorrect, the autopsy evidence did not undermine the ALJ's
conclusion that prong (A) was satisfied. The ALJ's ultimate conclu-
sion that "both the x-ray and autopsy evidence[were] sufficient to
invoke the [§ 921(c)(3)] presumption" was therefore correct. We con-
clude that the Benefits Review Board properly affirmed the ALJ, and
accordingly, the claimant in this case is entitled to an irrebuttable pre-
sumption that pneumoconiosis was a contributing cause of the
miner's death.
Eastern Coal's challenge primarily attacks the ALJ's method or
explanations for crediting evidence. In particular, Eastern Coal argues
(1) that the ALJ improperly placed greater weight on the 1991 x-rays
8
than on earlier ones; (2) that the ALJ improperly relied on a dictio-
nary definition of "massive" in concluding that prong (B) was satis-
fied; and (3) that the ALJ improperly discounted the opinions of Drs.
Naeye and Kleinerman who, based on their review of autopsy slides
and medical records, diagnosed the miner's condition as simple pneu-
moconiosis rather than complicated pneumoconiosis.
Much of Eastern Coal's argument depends on an assumption that
there is a conflict in the record between the x-ray evidence and the
autopsy evidence. This perceived conflict is based on two flawed
premises. First, Eastern Coal assumes that the statutory definition of
"complicated pneumoconiosis" must be congruent with a medical or
pathological definition. Second, Eastern Coal assumes that the reports
of Drs. Naeye and Kleinerman, who gave opinions that the autopsy
slides did not meet this pathological definition, undermine the ALJ's
finding of statutory complicated pneumoconiosis.
Section 921(c)(3), which creates the irrebuttable presumption of
causation, does not refer to the triggering condition as "complicated
pneumoconiosis," nor does it refer to a medical condition that doctors
independently have called complicated pneumoconiosis. Rather, the
presumption under § 921(c)(3) is triggered by a congressionally
defined condition, for which the statute gives no name but which, if
found to be present, creates an irrebuttable presumption that disability
or death was caused by pneumoconiosis.2 The statute provides three
methods for establishing the existence of the condition, but these
methods would not necessarily be useful as diagnostic guidelines in
a clinical setting. In short, the statute betrays no intent to incorporate
a purely medical definition.
Because of the possibility -- even likelihood-- of divergence
between medical and legal standards in the context of the Black Lung
Act, we have counseled that one must evaluate the evidence with a
_________________________________________________________________
2 The House bill that became the Black Lung Benefits Act originally
contained a provision defining "complicated pneumoconiosis"; in confer-
ence, this provision was deleted, but the defining criteria were retained
in a new provision creating the irrebuttable presumption. See H.R. Rep.
No. 91-563, reprinted in 1969 U.S.C.C.A.N. 2503, 2543; H. Conf. Rep.
No. 91-761, reprinted in 1969 U.S.C.C.A.N. 2578, 2603-05.
9
"sensitiv[ity] to conflicting meanings ascribed to the same words by
lawyers and doctors, as well as to idiosyncratic differences in phrase-
ology among doctors themselves." Piney Mountain Coal Co. v. Mays,
176 F.3d 753, 761 (4th Cir. 1999). And to the extent there is a diver-
gence between the medical and legal standards for complicated pneu-
moconiosis, we must apply the standard established by Congress.
Yet Eastern Coal's legal argument under § 921(c)(3) appears to
insist on using a medical definition for complicated pneumoconiosis.
For instance, it states:
Complicated pneumoconiosis is a well-known condition that
has been extensively researched. The condition exhibits
express and well understood clinical and pathological dam-
age to lung tissue and architecture. It is not simply a bad
case of simple pneumoconiosis, but a very different and far
more serious disease. . . . [It] is not some arcane legal or
political disease diagnosable only by Congress or courts.
Pet'r Br. at 19. Eastern Coal's assumption that 30 U.S.C. § 921(c)(3)
and 20 C.F.R. § 718.304 are directed at a clinical or pathological
understanding of "complicated pneumoconiosis" is further revealed
by its argument that
[m]iners with complicated pneumoconiosis usually com-
plain of cough productive of inky black material and the dis-
ease produces consolidation and collapse of the affected
area of the lung, pulmonary arterial hypertension, right ven-
tricular failure, and cor pulmonale . . . . None of these find-
ings were present in Scarbro's case.
Pet'r Br. at 28.
In the same vein, Eastern Coal questions the usefulness of x-ray
evidence for determining the existence of complicated pneumoconio-
sis, asserting that "no physician would accept the x-ray as superior to
the autopsy as a diagnostic tool in this regard." Pet'r Br. at 21-22.
This observation misses the mark. "Complicated pneumoconiosis," in
the statutory sense, is established by the application of congressio-
10
nally defined criteria, and, as we have been careful to note, the most
objective measure of the condition specified by§ 921(c)(3) is
obtained through x-rays. See Double B Mining, 177 F.3d at 243.
Accordingly, Eastern Coal's efforts to minimize the importance of the
x-ray evidence must fail. Cf. Lane Hollow Coal Co. v. Director,
OWCP, 137 F.3d 799, 804 (4th Cir. 1998) ("Disputing the clinical
accuracy of the [provisions of the Act] is not rebuttal"); Thorn v.
Itmann Coal Co., 3 F.3d 713, 719 (4th Cir. 1993) (same).
Because Eastern Coal focuses on the medical condition of compli-
cated pneumoconiosis, and not the statutory criteria for creating an
irrebuttable presumption, its underlying assumption that the ALJ had
conflicting evidence before him is flawed. The report by Dr. Kleiner-
man, for example, which was based on his examination of histological
slides and which revealed pneumoconiotic nodules up to 1.7 centime-
ters in size, does not undercut the ALJ's finding that prong (B) was
satisfied. Even though Dr. Kleinerman concluded that, in his medical
opinion, the lesions he observed did not amount to complicated pneu-
moconiosis, he did not state whether these lesions met the statutory
criteria of § 921(c)(3), i.e. whether, when x-rayed, they would show
as opacities greater than one centimeter. We are given no reason to
believe that nodules of 1.7 centimeters would not produce x-ray opac-
ities greater than one centimeter. To the contrary, the 1991 x-ray,
showing opacities greater than one centimeter in diameter, provides
persuasive evidence that the miner's lesions did in fact show as opaci-
ties of that size. Eastern Coal has not attempted to challenge this find-
ing made by seven of the eight reviewing doctors (and uncontradicted
by the eighth).
Challenging the ALJ's evaluation and weighing of evidence, East-
ern Coal takes issue with the ALJ's decision to accord greater weight
to the February 1991 x-ray than to earlier ones. Eastern Coal contends
that, in doing so, the ALJ improperly applied a"later is better" rule
despite "uncontradicted" medical evidence in the record that simple
pneumoconiosis could not have progressed to complicated pneumoco-
niosis in the years following the miner's retirement from the mines.
To support this contention, however, Eastern Coal points only to Dr.
Naeye's equivocal statement that the condition observed in the
miner's earlier x-rays "rarely progresses to a more severe disorder."
Eastern Coal's argument ignores the assumption of progressivity that
11
underlies much of the statutory regime, see Mullins Coal Co. v.
Director, OWCP, 484 U.S. 135, 151 (1987) (describing the etiology
of pneumoconiosis as "progressive and irreversible"); Turner Elk-
horn, 428 U.S. at 7-8, as well as the x-ray evidence in this case indi-
cating a progression in the severity of the miner's pneumoconiotic
symptoms from 1970 onward. The ALJ's "later is better" rule was not
imposed mechanically or arbitrarily, but was applied in the context of
a record in which the later x-rays were not inconsistent with the ear-
lier ones. Cf. Lane Hollow Coal Co. v. Director, OWCP, 137 F.3d
799, 803 n.6 (4th Cir. 1998) (rejecting "later is better" rule when evi-
dence indicates that condition improved, rather than deteriorated, over
time); Adkins v. Director, OWCP, 958 F.2d 49, 51-52 (4th Cir. 1992)
(same).
Eastern Coal also argues that the ALJ improperly relied upon a dic-
tionary to discern the meaning of the term "massive" as used in prong
(B) of the statute and regulation. Because Congress chose to use the
word "massive" in its ordinary sense without giving it a precise statu-
tory or medical definition, there can be no harm in the ALJ's having
consulted the dictionary to find equivalent meanings for the word. As
we have emphasized, any such definition must be applied so that the
term "massive lesions" will describe the same condition that would be
disclosed by application of the prong (A) standard based on the size
of x-ray opacities. In this case, we see no indication that the ALJ's
use of a dictionary definition resulted in an assessment of the autopsy
evidence that was at odds with a correct interpretation of the statute.
For the foregoing reasons, we affirm the decision of the Benefits
Review Board affirming the ALJ's order awarding benefits to Pearl
Scarbro.
AFFIRMED
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