Filer v. Consolidation Coal ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CONSOLIDATION COAL COMPANY,
Petitioner,
v.
DONALD E. FILER; DIRECTOR,
No. 95-1270
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(92-2525-BLA)
Argued: December 8, 1995
Decided: March 26, 1996
Before WILKINS and NIEMEYER, Circuit Judges, and PAYNE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.
_________________________________________________________________
Reversed, vacated, and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: William Steele Mattingly, JACKSON & KELLY, Mor-
gantown, West Virginia, for Petitioner. J. Scott Leckie, YABLON-
SKI, COSTELLO, LECKIE & CHABAN, Washington, Pennsylva-
nia, for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Consolidation Coal Company ("Consolidation") appeals the deci-
sion of the United States Department of Labor Benefits Review Board
(the "Board") awarding lifetime disability benefits to Donald E. Filer
under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq. For the
reasons which follow, we reverse and vacate the Board's decision and
remand the matter for further proceedings.
BACKGROUND
Filer was employed as an underground coal miner for almost 43
years. A few days after retiring in August 1990, Filer submitted a
claim for lifetime benefits claimed by virtue of a total, permanent dis-
ability allegedly caused by pneumoconiosis arising out of employ-
ment in a coal mine. It was then, and remains now, undisputed that:
(1) Filer was employed as an underground coal miner for almost 43
years; (2) Filer is totally disabled largely, if not completely, as the
result of chronic obstructive pulmonary disease; and (3) Filer's chest
x-rays do not indicate the presence of coal miners' pneumoconiosis.
Upon initial review, the district director for the United States Depart-
ment of Labor determined that there was sufficient evidence to sup-
port Filer's entitlement to the disability benefits he claimed.
Consolidation requested that the matter be referred to the Office of
Administrative Law Judges for a hearing de novo which was held on
March 19, 1992. At the hearing, the Administrative Law Judge heard
testimony and received exhibits and, on August 17, 1992, issued a
decision and an order awarding benefits. Consolidation sought review
of the ALJ's decision by the Board which held that it was based upon
substantial evidence and rejected Consolidation's appeal. Consolida-
tion petitioned for reconsideration, but the Board denied the petition.
This appeal followed.
2
Under § 902(b) of the Act and the applicable regulations, 20 C.F.R.
§ 718.201, pneumoconiosis is defined as a"chronic dust disease of
the lung and its sequelae, including respiratory and pulmonary impair-
ments, arising out of coal mine employment." This includes any
chronic pulmonary disease resulting in impairment significantly
related to, or substantially aggravated by, dust exposure arising out of
employment in a coal mine. Consequently, the legal definition of
pneumoconiosis is significantly broader than the medical definition of
the term. Hobbs v. Clinchfield Coal Co., 45 F.3d 819, 821 (4th Cir.
1995); see Nance v. Benefits Review Bd., 861 F.2d 68, 71 (4th Cir.
1988).
The controlling regulations permit a finding of pneumoconiosis on
the basis of: (1) chest x-rays meeting regulatory criteria; (2) biopsies
or autopsies conforming to regulatory requirements; or (3) certain
presumptions created by regulation. None of these three modes of
proof are implicated in this appeal. Instead, we are concerned here
with the fourth permissible method for demonstrating pneumoconio-
sis: the medical opinion method, pursuant to which:
[a] determination of the existence of pneumoconiosis may
also be made if a physician, exercising sound medical judg-
ment, notwithstanding a negative x-ray, finds that the miner
suffers or suffered from pneumoconiosis as defined in sec-
tion 718.201. Any such finding shall be based upon objec-
tive medical evidence such as blood-gas studies, electro-
cardiograms, pulmonary function studies, physical perfor-
mance tests, physical examination, and medical and work
histories. Such findings shall be supported by a reasoned
medical opinion.
20 C.F.R. § 718.202(a)(4) (emphasis added). The record reflects the
opinions of seven physicians addressing Filer's condition.
First, on May 7, 1986, after Filer had worked 39 years "inside the
mines," Dr. A.K. Pfister, a specialist in internal medicine and infec-
tious disease, and Dr. J.T. Smith, whose specialty does not appear in
the record, jointly opined that there was "[n]o evidence of occupa-
tional pneumoconiosis." (J.A. 11.) In their opinion, based on physical
examination, x-rays and exercise testing, Filer's"[p]ulmonary func-
3
tion changes [were] related to bronchospastic airway disease." (J.A.
11.)
Second, on August 23, 1990, Dr. Jayesh Gosai, whose specialty is
not reflected in the record, expressed the view based on a physical
examination, medical history and physical testing, that there was
"COPD, possible black lung disease and bronchial asthma." (J.A. 18.)
Third, on September 13, 1990, at the request of the United States
Department of Labor, Dr. Yong Dae Cho examined Filer and
recorded his medical history. Dr. Cho, who is Board certified in fam-
ily practice, expressed the view that Filer suffered from severe COPD
due to "coal dust and cigarette smoking," but was unable to differenti-
ate between the effects of coal mine dust and cigarette smoking. (J.A.
56 and 58.) Notwithstanding his expressed view that simple pneumo-
coniosis can never be disabling, Dr. Cho also gave the opinion that
exposure to both coal mine dust and cigarette smoke contributed to
Filer's disability. (J.A. 51 and 56).
Fourth, on October 5, 1990, Dr. Surinder K. Aneja, a specialist in
pulmonary medicine, having considered physical examination and
laboratory findings, expressed the view that Filer suffered from "se-
vere COPD" and "mild congestive heart failure secondary to chronic
cor-pulmonale." (J.A. 17.)
Fifth, on May 6, 1991, following physical examination and labora-
tory evaluations, Dr. Joseph J. Renn, III, a pulmonary specialist,
expressed the opinion that:
Mr. Donald Filer has intristic asthma, exogenous obesity,
Cushingoid changes and, by past medical history, conges-
tive heart failure. He does not have pneumoconiosis. He has
a very severe obstructive venialtory defect of sufficient
degree to prevent him from being able to perform his last
known coal mining job of dumper and hoister or any similar
work effort. It is with a reasonable degree of medical
certainty Mr. Donald Filer's intristic asthma, exogenous
obesity, Cushing-oid changes and congestive heart failure
4
were neither caused, nor contributed to, by his exposure to
coal mine dust.
(J.A. 15.) (emphasis added).
Sixth, Dr. Warfield Garson, who is Board certified in preventive
medicine, examined Filer on May 30, 1991, and, on the basis of phys-
ical examination, past medical history and pulmonary function tests,
past and present, expressed the following view:
I find this man, in view of his pulmonary signs , symptoms,
to be totally and permanently disabled from his previous job
as an underground coal miner. However, these findings are
primarily due to his emphysema, and I do not find any
evidence of coal workers' pneumoconiosis at this time.
(J.A. 38.) (emphasis added). On December 3, 1991, Dr. Garson wrote
to Filer's counsel in response to a letter which is not in the record. At
that time, Dr. Garson expressed a somewhat different view:
Mr. Filer's pulmonary disability of chronic obstructive lung
disease is primarily due to his emphysema which, in part,
was caused by his long term intermittent smoking of ciga-
rettes and to his exposure to underground coal mine dust
which aggravated his pulmonary problem. His underground
coal mine dust exposure substantially contributed to his pul-
monary impairment, not withstanding [sic] the fact that his
chest x-ray is negative for Coal Worker's Pneumoconiosis,
which, by the way, even if originally present tends to fade
out in the presence of severe emphysema.
(J.A. 39.) (emphasis added). Dr. Garson, however, was unable to
determine the extent to which Filer's disability was caused by ciga-
rette smoking or by coal dust exposure. (J.A. 90.)
Seventh, on March 2, 1992, Dr. Gregory J. Fino, a pulmonary spe-
cialist, on the basis of physical examination, medical history, and res-
piratory testing and x-rays, expressed the view (confirming his report
of November 22, 1991) that:
5
There is no pneumoconiosis, but there is disabling respira-
tory impairment arising out of cigarette smoking and
[Filer's] hereditary predisposition to asthma. This man
would be as disabled as I find him now had he never stepped
foot in the coal mines.
(J.A. 27) (emphasis added).1
Confronted with this ambivalent record, the ALJ expressed the fol-
lowing opinion:
In this case, two examining physicians have concluded that
claimant's disabling pulmonary impairment arises out of
coal mine employment (Dr. Cho and Dr. Garson), and two
examining physicians have found that claimant's pulmonary
impairment is unrelated to his coal mine employment (Dr.
Renn and Dr. Fino). (Drs. Pfister and Smith examined
claimant in 1986, before his pulmonary condition became
severe.) Frankly, I find it difficult to accept that claimant's
severe pulmonary impairment has no relation to his forty
two years of exposure to coal dust while working as a coal
miner. The opinions of Drs. Renn and Fino in this regard
are simply not credible. I note also that while Dr. Renn and
Dr. Fino are highly qualified board certified pulmonologists,
Dr. Garson is board certified in preventive medicine which
includes occupational medicine. His credentials are very
impressive, and I believe that he is as qualified as a physi-
cian who is board certified in pulmonary diseases to deter-
mine the etiology of a lung disease.
The findings of Dr. Cho and Dr. Garson are also corrobo-
rated by the opinions of Dr. Gosai, who diagnosed possible
black lung disease, and Dr. Aneja, who diagnosed cor pul-
_________________________________________________________________
1 The ALJ's opinion reports that Dr. A. Dahahn, a certified pul-
monologist, reviewed the medical evidence and on January 21, 1992,
opined that there was insufficient evidence to justify diagnosis of occu-
pational pneumoconiosis and that Filer's respiratory disability had not
been caused by coal dust exposure or occupational pneumoconiosis. (J.A.
182). The record does not contain Dr. Dahahn's report.
6
monale, one of the indicia of coal workers' pneumoconiosis.
Finally, I feel that it is significant that Dr. Fino agreed that
the symptoms of claimant's asthma could be exacerbated by
exposure to coal dust, which places claimant's asthma
within the definition of pneumoconiosis in § 718.201. I
therefore conclude that pneumoconiosis has been estab-
lished at (a)(4).
(J.A. 183.) (emphasis added). The Board affirmed the ALJ's decision
as based on substantial evidence. (J.A. 186.)
DISCUSSION
To establish entitlement to disability benefits, Filer was obligated
to prove: (1) the existence of pneumoconiosis; (2) that pneumoconio-
sis arose out of coal mine employment; and (3) that his totally dis-
abling pulmonary disease is due, at least in part, to pneumoconiosis.
Robinson v. Pickands Mather & Co., 914 F.2d 35, 36 (4th Cir. 1990).
Judicial review of the administrative decision is governed by the sub-
stantial evidence standard. Consequently, the administrative determi-
nation will not be disturbed if it is supported by substantial evidence
in the record as a whole. Hobbs, 45 F.3d at 820. Accordingly, we
must review the record independently and determine whether substan-
tial evidence supports the findings of the ALJ. Cox v. Shannon-
Pocahontas Mining Co., 6 F.3d 190, 192 (4th Cir. 1993); Jordan v.
Califano, 582 F.2d 1333, 1335 (4th Cir. 1978).
However, before an appellate court can determine whether substan-
tial evidence exists to support the administrative determination, it
must "first ascertain whether the Secretary has discharged his duty to
consider all relevant evidence." Jordan, 582 F.2d at 1335. This is
because the courts "face a difficult task in applying the substantial
evidence test when the Secretary has not considered all relevant evi-
dence." Arnold v. Secretary of H.E.W., 567 F.2d 258, 259 (4th Cir.
1977). As we explained in Arnold:
Unless the Secretary has analyzed all evidence and has suf-
ficiently explained the weight he has given to obviously pro-
bative exhibits, to say that his decision is supported by
substantial evidence approaches an abdication of the court's
7
"duty to scrutinize the record as a whole to determine
whether the conclusions reached are rationale."
Id. (citations omitted). Moreover, "bald conclusion[s], unsupported by
reasoning or evidence, [are] generally of no use to a reviewing court,
except in the very rare instance when a case is so one-sided as to be
obvious." Jordan, 582 F.2d at 1335. And,"conclusory administrative
determinations may conceal arbitrariness." Id.To eliminate these problems, the ALJ is obligated to consider all
relevant evidence and "must indicate explicitly that such evidence has
been weighed and its weight." Id. (citing Arnold, 567 F.2d at 259). In
particular, the ALJ is obligated to explain the specific reasons for
attributing greater weight to certain medical opinions than others and
to address specifically each medical opinion which disagrees with his
ultimate conclusion. See Hobbs, 45 F.3d at 819. Failure to give proper
consideration to all relevant evidence requires remand for further con-
sideration. Maxey v. Califano, 598 F.2d 874, 875 (4th Cir. 1979);
Arnold, 567 F.2d at 259-60.
The administrative determination in this case must be remanded
because the decision of the ALJ does not reflect that all relevant evi-
dence has been considered. Nor does the ALJ's opinion satisfy the
requirement for an on-the-record explication of the reasons which
caused him to attribute greater weight to certain medical opinions and
reject others and which prompted him to disregard medical opinions
which were at odds with the ultimate conclusions he reached.
Although it is true that the ALJ's opinion in this case summarizes the
medical reports and the testimony of the doctors, the articulated rea-
son for the ALJ's rejection of the opinions of Drs. Renn and Fino is
merely that they "are simply not credible." (J.A. 183.) The ALJ does
not share the reasons for this credibility determination, but it appears
in the following context: "[F]rankly, I find it difficult to accept that
claimant's severe pulmonary impairment has no relation to his forty
two years of exposure coal dust while working as a coal miner. The
opinions of Drs. Renn and Fino in this regard are simply not credi-
ble." (J.A. 183.) (emphasis added).
Then, having stated that he finds Dr. Garson, who is certified in
preventive medicine, to be "equally as qualified" as Drs. Renn and
8
Fino, who are certified in pulmonary medicine, the ALJ did not
explain why he credited an opinion from Dr. Garson which appears
to be at odds with the opinion that Dr. Garson had expressed just six
months earlier. In sum, the critical component of the ALJ's opinion
is nothing more than a bald conclusion of the type which is of little,
if any, use to a reviewing court.
We note that the ALJ also reached the conclusion that the findings
of Dr. Cho and Dr. Garson were corroborated by the opinion of Dr.
Gosai because, as the ALJ put it, he "diagnosed possible black lung
disease" and by the opinion of Dr. Aneja because he "diagnosed cor
pulmonale," one of the indicia of coal workers' pneumoconiosis. It
may be that a speculative ("possible") diagnosis can provide corrobo-
ration but, without an adequate explanation of why that is the case,
this court cannot properly perform the review required of it.
The opinion of the ALJ is not unlike the one we found defective
in Arnold because, although the ALJ claimed to have considered all
of the evidence, the opinion gave no indication of the weight afforded
to certain evidence and in fact amounted to no more than a "bare
recital that he considered the evidence." Arnold, 567 F.2d at 260. On
the other hand, the ALJ's opinion here is unlike the opinion in Hobbs
where the ALJ "set forth reasons why he had attributed greater weight
to certain medical opinions and he specifically addressed each medi-
cal opinion which disagreed with his ultimate conclusion." Hobbs, 45
F.3d at 820.
It is especially important where, as here, there are negative chest
x-rays and undisputed evidence of disability, that the ALJ weigh, on
the record, the conflicting medical opinions and evidence and explain
precisely why one line of medical authority is adopted and the other
is rejected. Indeed, unless the ALJ's opinion confronts the conflicts,
weighs the opinions and the evidence and articulates why one line of
authority is persuasive and the other is not, judicial review under a
substantial evidence standard is not possible.
That is of particular significance here because the ALJ relied upon
the medical opinion of Dr. Garson, who is certified in preventive
medicine, and who only a few months previously had expressed what
appears to be a materially different opinion and on the testimony of
9
Dr. Cho whose credibility is called into question by virtue of his diag-
nosis of a contributing disability while at the same time espousing the
belief that simple coal workers' pneumoconiosis is never disabling.2
Furthermore, the ALJ rejected, with no substantive explanation, the
views of several physicians, certified in pulmonary medicine, who
have concluded either that there is an absence of pneumoconiosis or
that the evidence is insufficient to support a finding of pneumoconio-
sis. Decisions on conflicting evidence such as this must be addressed
and explained at the administrative level before judicial review under
the substantial evidence standard can be accomplished meaningfully.
For these reasons, the decision of the Benefits Review Board is
REVERSED and the case is REMANDED for further proceedings
consistent with this Opinion.
REVERSED, VACATED, AND REMANDED
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2 We need not here consider Consolidation's argument that, under Penn
Alleghany Coal Co. v. Mercatell, 878 F.2d 106 (3rd Cir. 1989), Dr.
Cho's medical opinion must be rejected because he subscribes to the
view that "simple coal worker's pneumoconiosis" is never disabling.
That issue, however, must be considered in the proceedings on remand.
10