Westmoreland Coal Co. v. United States Department of Labor ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WESTMORELAND COAL COMPANY, 
INCORPORATED,
Petitioner,
v.
ORVILLE BRADLEY; DIRECTOR, OFFICE  No. 00-1192
OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(98-1188-BLA)
Argued: December 8, 2000
Decided: January 19, 2001
Before NIEMEYER and MOTZ, Circuit Judges, and
James C. CACHERIS, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C.,
Charleston, West Virginia, for Petitioner. Roger Daniel Forman,
FORMAN & CRANE, Charleston, West Virginia, for Respondents.
2 WESTMORELAND COAL CO. v. BRADLEY
ON BRIEF: Mary Rich Maloy, JACKSON & KELLY, P.L.L.C.,
Charleston, West Virginia, for Petitioner. Robert Lee White, Madi-
son, West Virginia, for Respondent Bradley.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This appeal constitutes Orville Bradley’s third application for bene-
fits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 (1994).
He filed unsuccessfully in 1971 and again in 1978. Bradley was
employed in the coal industry for most of his adult life. From 1969
to 1971, he worked as a section foreman for Westmoreland Coal
Company, but he last worked in the coal mining industry as a mine
inspector with the West Virginia Department of Mines, from 1971 to
1985.
This claim, initiated in 1991, was first denied by the District Direc-
tor and then by an Administrative Law Judge ("ALJ"). Upon review,
however, the Benefits Review Board ("BRB") vacated that decision
and remanded for further proceedings. Because the previous ALJ had
left his position, a new ALJ heard the claim and evaluated the evi-
dence de novo. After a hearing, the ALJ concluded that Bradley suf-
fers from pneumoconiosis, which is a contributing cause to his totally
disabling respiratory condition. Accordingly, the ALJ granted benefits
to Bradley. The BRB upheld this ruling, and Westmoreland now
appeals. For the reasons set forth below, we vacate and remand for
further proceedings.
I.
"In order to obtain federal black lung benefits, a claimant must
prove by a preponderance of the evidence that: ‘(1) he has pneumoco-
WESTMORELAND COAL CO. v. BRADLEY 3
niosis; (2) the pneumoconiosis arose out of his coal mine employ-
ment; (3) he has a totally disabling respiratory or pulmonary
condition; and (4) pneumoconiosis is a contributing cause to his total
respiratory disability.’" Island Creek Coal Co. v. Compton, 211 F.3d
203, 207 (4th Cir. 2000) (quoting Milburn Colliery Co. v. Hicks, 138
F.3d 524, 529 (4th Cir. 1998)). The first, third, and fourth elements
are at issue in this case.
Claimant can establish the existence of pneumoconiosis through
chest x-ray, biopsy, or medical opinion evidence. 20 C.F.R.
§ 718.202(a) (2000).1 In this case, no biopsy evidence was available,
but the ALJ considered sixty x-ray readings and nine medical opin-
ions in concluding that Bradley suffers from pneumoconiosis.
Addressing the x-ray evidence by itself, the ALJ found that:
[A] preponderance of the most expert physicians found the
x-ray evidence to be negative for pneumonconiosis. Addi-
1
20 C.F.R. § 718.202 provides:
(a) A finding of the existence of pneumoconiosis may be made
as follows:
(1) A chest X-ray . . . may form the basis for a finding of the
existence of pneumoconiosis . . .
....
(2) A biopsy or autopsy . . . may be the basis for a finding of
the existence of pneumoconiosis. . . .
(3) If the presumptions described in [the regulations] are appli-
cable, it shall be presumed that the miner is or was suffering
from pneumoconiosis.
(4) A determination of the existence of pneumoconiosis may
also be made if a physician, exercising sound medical judgment,
notwithstanding a negative X-ray, finds that the miner suffers or
suffered from pneumoconiosis. . . . Any such finding shall be
based on objective medical evidence such as blood-gas studies,
electrocardiograms, pulmonary function studies, physical perfor-
mance tests, physical examination, and medical and work histo-
ries. Such a finding shall be supported by a reasoned medical
opinion.
4 WESTMORELAND COAL CO. v. BRADLEY
tionally, an overwhelming preponderance of all physicians
found the x-rays to be negative as well. Accordingly, I find
that Claimant has failed to establish with chest x-ray evi-
dence that he has pneumoconiosis.
Finding that Bradley failed to establish pneumoconiosis through x-ray
evidence under § 718.202(a)(1), the ALJ turned to the nine medical
opinions pursuant to § 718.202(a)(4).
Drs. Ralph J. Jones and W. G. Hayes, whose qualifications are not
contained in the record, examined Bradley in 1976 and found no evi-
dence of pneumoconiosis and provided no assessment of pulmonary
impairment or causation. The ALJ gave these opinions limited weight
because these doctors were not familiar with Bradley’s current condi-
tion; therefore their conclusion that no pneumoconiosis was present
in 1976 provided little insight into his condition now. In addition, the
ALJ found their reports cursory and poorly reasoned.
Drs. Thomas M. Jarboe, Robert G. Loudon, and James R. Castle,
all board-certified physicians, did not personally examine Bradley.
However, upon review of a myriad of medical records and test results,
they determined that Bradley did not suffer from pneumoconiosis.
Rather, they concluded, Bradley’s mild to moderate respiratory
impairment was caused by cigarette smoking, asthma, or a combina-
tion of both. The ALJ gave their opinions less weight because they
were not based on personal examinations.
Dr. George L. Zaldivar, a board-certified physician, examined
Bradley three times between 1992 and 1997. The doctor found some
pulmonary impairment, but concluded that Bradley did not suffer
from pneumoconiosis. Instead, Dr. Zaldivar determined that Bradley’s
mild to moderate impairment was caused by emphysema from a 45-
year smoking habit, asthma, and a history of gastro-esophageal reflux,
which he linked to Bradley’s respiratory problems. In addition, the
doctor found that Bradley’s impairment was not totally disabling. The
ALJ gave Dr. Zaldivar’s opinion "no weight," because he did not find
the doctor credible. The ALJ stated that the gastro-esophageal reflux
explanation "strains the bounds of credibility" and did not believe Dr.
Zaldivar’s asthma determination because the doctor did not mention
it until his third report.
WESTMORELAND COAL CO. v. BRADLEY 5
By contrast to the six doctors above, Drs. C. J. Lesaca and J. C. Carbo-
nel,2 whose qualifications are not in the record, found evidence of
pneumoconiosis after examining Bradley in 1978 and 1979 respec-
tively. They determined that Bradley was totally disabled, but never
specifically addressed Bradley’s degree of pulmonary impairment and
did not opine regarding the cause of the disability. Because these doc-
tors’ opinions were outdated, the ALJ gave them little weight. How-
ever, he gave them more weight than the twenty year old opinions of
Drs. Jones and Hayes, because Drs. Lesaca and Carbonel found pneu-
moconiosis "which is irreversible, and once a miner acquires pneumo-
coniosis it will continue over time." Thus, according to the ALJ, the
lapse of twenty years was less likely to change the opinions of Drs.
Jones and Hayes than it was to change the minds of Drs. Lesaca and
Carbonel.
Finally, Dr. Donald L. Rasmussen, whose qualifications are not in
the record, concluded that Bradley suffered from pneumoconiosis.
This opinion was based on a 1991 physical exam, numerous tests, and
an x-ray reading that was positive for pneumoconiosis. Although Dr.
Rasmussen received two negative x-ray readings shortly after the
exam, he stated that those readings did not change his opinion
because coal dust damage "may well occur to a coal miner without
producing x-ray evidence of the pneumoconiosis which he may very
well have." The ALJ gave Dr. Rasmussen’s report the "greatest
weight." He found the doctor’s opinion well-reasoned and that Dr.
Rasmussen considered and rejected causes other than pneumoconiosis
for Bradley’s symptoms, explained that negative x-rays would not
change his mind, conducted a thorough examination, and obtained
objective testing.
Relying most heavily on Dr. Rasmussen’s opinion, the ALJ con-
cluded that Bradley suffered from pneumoconiosis, was totally dis-
abled, and the pneumoconiosis was a contributing cause to his total
disability and accordingly awarded Bradley benefits. Westmoreland
challenges each of these findings. For the reasons that follow, we
believe that the ALJ erred in several respects.
2
Because of legibility problems, the ALJ referred to this doctor as
"Caitnier," but it appears from the record and the BRB’s decision that his
true name is Carbonel.
6 WESTMORELAND COAL CO. v. BRADLEY
II.
First, the ALJ acted contrary to this Court’s recent holding that the
proper method for determining the existence of pneumoconiosis under
§ 718.202(a) is to "weigh the different types of evidence together to
determine whether a preponderance of all of the evidence establishes
the existence of pneumoconiosis." Compton, 211 F.3d at 208. It is
clear from the record that in this case the ALJ weighed the x-ray evi-
dence separately from the medical opinion evidence. Indeed, the ALJ
found that "while the chest x-ray evidence is negative, the physician
opinion evidence establishes that Claimant has pneumoconiosis."3
The ALJ improperly isolated one type of evidence from another; on
remand, he must consider all available evidence as a whole.
Specifically, the ALJ must evaluate Dr. Rasmussen’s medical opin-
ion in light of the fact that fifty-four out of sixty x-ray readings were
negative. In addition, only seven of the physicians that read Bradley’s
x-rays were both highly qualified board-certified radiologists and B-
Readers; and six of those agreed that the x-rays were negative for
pneumoconiosis. Moreover, almost thirty negative readings, all by
these six certified readers, occurred after Dr. Rasmussen issued his
report. Thus, his diagnosis was made without benefit of this evidence.4
By failing to look at Dr. Rasmussen’s medical opinion in conjunction
with a good deal of additional x-ray evidence, the ALJ erred.
It also seems that the ALJ erred by "ignor[ing] the relative qualifi-
cations of competing physicians." Sterling Smokeless Coal Co. v.
Akers, 131 F.3d 438, 440 (4th Cir. 1997). The qualifications of the
three doctors that found pneumoconiosis were not contained in the
record, while four of the doctors that ruled out pneumoconiosis were
board-certified with other documented qualifications. Yet, the ALJ
failed to account for this in his analysis.
3
The ALJ stated that he was "[w]eighing all of the evidence," but it is
clear from his opinion that he did not weigh all of the evidence "to-
gether." Compton, 211 F.3d at 208.
4
It is true that Dr. Rasmussen’s diagnosis did not change after seeing
two negative x-rays readings, but it may have changed after seeing thirty
negative x-ray readings by six different certified readers.
WESTMORELAND COAL CO. v. BRADLEY 7
Additionally, the ALJ improperly gave "less weight" to the three
doctors that did not personally examine Bradley, explaining that
"[t]heir reports were mainly based upon Dr. Zaldivar’s opinion . . .
and each other’s reports." In actuality, these doctors’ diagnoses were
also based on a number of different medical records and test results.
Our precedent makes clear that it is error to discredit doctors’ opin-
ions that are based on medical records simply because the physicians
did not personally examine a claimant. See Compton, 211 F.3d at 212;
Sterling Smokeless, 131 F.3d at 441.
Accordingly, we remand with instructions to evaluate all of the evi-
dence together, compare the relative qualifications of the doctors, and
give appropriate weight to the opinions of those doctors that based
their decisions on medical records.
III.
We find no reversible error, however, in the ALJ’s conclusion that
Bradley was totally disabled under the regulations. 20 C.F.R.
§ 718.204 (2000).5 All of the doctors that addressed the issue deter-
mined that Bradley suffered from mild to moderate pulmonary
impairment, yet they disagreed as to whether that impairment would
totally prevent Bradley from performing his usual coal mine employ-
ment. See 20 C.F.R. § 718.204(b).
The ALJ compared the "exertional requirements of the claimant’s
usual coal mine employment with a physician’s assessment of claim-
ant’s respiratory impairments." He found that Bradley last worked as
a mine inspector, where he walked and crawled in low areas for eight
hours a day; a job that the ALJ found "moderately strenuous." He thus
concluded that Bradley’s moderate impairment would totally disable
and prevent him from performing his moderately strenuous job. In
making this finding, the ALJ gave Dr. Zaldivar’s opinion less weight,
because he found that Dr. Zaldivar underestimated the true exertional
requirements of Bradley’s work and found Dr. Zalvidar’s report inter-
nally inconsistent because the doctor stated that Bradley could at
5
20 C.F.R. § 718.204 provides in relevant part that "a miner shall be
considered totally disabled if pneumoconiosis . . . prevents or prevented
the miner . . . [f]rom performing his or her usual coal mine employment."
8 WESTMORELAND COAL CO. v. BRADLEY
times perform very arduous manual labor, but yet had a mild to mod-
erate impairment. Although we do not find this latter conclusion nec-
essarily inconsistent, we do find that substantial evidence in the
record supports the ALJ’s findings and weighing of the opinions on
the question of total disability. See Milburn Colliery, 138 F.3d at 528.
Thus, we find no error in the ALJ’s ruling as to Bradley’s total dis-
ability.
IV.
The final issue is whether the pneumoconiosis, if present, was a
"contributing cause" to Bradley’s total disability. Hobbs v. Clinchfield
Coal Co., 917 F.2d 790, 792 (4th Cir. 1990). Only five of the nine
doctors expressed an opinion regarding the cause of any disability.
Dr. Rasmussen attributed the disability to pneumoconiosis caused by
coal dust exposure and chronic obstructive pulmonary disease caused
by cigarette smoking and coal dust exposure. Dr. Zaldivar found the
primary causes to be asthma and emphysema. Drs. Jarboe and Loudon
concluded that cigarette smoking caused the impairment, while Dr.
Castle pointed to both asthma and tobacco abuse. Relying on Dr. Ras-
mussen’s opinion, the ALJ concluded that Bradley had established
that his pneumoconiosis was a contributing cause to his total disabil-
ity.
In so doing, the ALJ concluded that the opinions of Drs. Jarboe,
Castle, and Loudon — that any pulmonary impairment was caused
from asthma and smoking, not coal dust exposure — were "not suffi-
cient to outweigh the well-reasoned report of Dr. Rasmussen." The
ALJ gave their reports "little weight" because their conclusions that
Bradley did not suffer from pneumoconiosis conflicted with the
ALJ’s determination "that the miner has pneumoconiosis and is
totally disabled."
This analysis is erroneous for two reasons. First, as discussed
above, the ALJ’s determination that Bradley suffers from pneumoco-
niosis may have been in error, and in any event must be re-evaluated.
Thus, the doctors’ opinions may not conflict with the ALJ’s eventual
ruling on the pneumoconiosis issue. Second, although Drs. Jarboe,
Castle, and Loudon concluded that Bradley did not have pneumoconi-
osis, they "acknowledge[d] the miner’s respiratory or pulmonary
WESTMORELAND COAL CO. v. BRADLEY 9
impairment, but nevertheless conclude[d] that an ailment other than
pneumoconiosis caused the miner’s total disability." Dehue Coal Co.
v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995). Therefore, the ALJ
"erred as a matter of law in discounting the physicians’ opinions." Id.
at 1195. This is not to suggest that on remand the ALJ must reverse
his conclusion, but he must at least give appropriate weight and con-
sideration to these doctors’ opinions.
V.
We vacate the BRB’s decision and remand with instructions to
remand to the ALJ for further proceedings consistent with this opin-
ion.
VACATED AND REMANDED