BethEnergy Mines Inc v. DOWCP ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BETHENERGY MINES, INCORPORATED,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS'
No. 95-1886
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
SHIRLEY ROWAN, survivor of
Delmer B. Rowan,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(93-1435-BLA)
Argued: April 5, 1996
Decided: July 30, 1996
Before HALL, NIEMEYER, and HAMILTON, Circuit Judges.
_________________________________________________________________
Vacated and remanded with instructions by unpublished per curiam
opinion. Judge Hall wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: William Steele Mattingly, JACKSON & KELLY, Mor-
gantown, West Virginia, for Petitioner. Richard K. Wehner, WEH-
NER LAW OFFICES, Kingwood, West Virginia, for Respondents.
ON BRIEF: Kathy L. Snyder, JACKSON & KELLY, Morgantown,
West Virginia, for Petitioner.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Shirley L. Rowan (the Claimant), the surviving spouse of Delmer
B. Rowan (Rowan), applied for survivor's benefits under the Black
Lung Benefits Act, 30 U.S.C. §§ 901-45. Following an initial decision
in favor of the Claimant, the responsible operator, BethEnergy Mines,
Inc. (BethEnergy) requested a hearing before an ALJ. The ALJ
awarded the Claimant benefits. BethEnergy appealed to the Benefits
Review Board (the Board), which affirmed the award of benefits.
BethEnergy then filed a petition for review with this court. We grant
the petition for review, vacate the Board's decision, and remand to the
Board with instructions to remand to the ALJ for further proceedings.
I.
Under the Black Lung Benefits Act, "[b]enefits are provided to eli-
gible survivors of a miner whose death was due to pneumoconiosis."
20 C.F.R. § 718.205(a). For claims, such as this one, filed after Janu-
ary 1, 1982, "death will be considered to be due to pneumoconiosis
if . . . pneumoconiosis was a substantially contributing cause or factor
leading to the miner's death . . . ." 20 C.F.R.§ 718.205(c)(2). Here,
BethEnergy concedes that Rowan had pneumoconiosis. Therefore, the
only substantive issue in this case is whether Rowan's pneumoconio-
sis "was a substantially contributing cause or factor leading to [his]
death." See id.
At the hearing before the ALJ, the Director of the Office of Work-
ers' Compensation Programs submitted the following evidence in the
record regarding whether coal workers' pneumoconiosis contributed
to Rowan's death: Rowan's death certificate, which stated that
Rowan's immediate cause of death was acute respiratory failure, due
to or as a consequence of chronic obstructive pulmonary disease; an
autopsy report prepared by Dr. Franyutti, which concluded that
2
Rowan had "[d]iffuse moderate simple coal worker's pneumoconiosis
with severe pulmonary emphysema with right moderate and left large
emphysematous bullae formation," "[c]hronic and acute bronchitis,"
and "[a]reas of pneumonitis, bilateral" (J.A. 7); a medical report pre-
pared by Dr. Gaziano, which stated that coal workers' pneumoconio-
sis substantially contributed to Rowan's death; and copies of Rowan's
medical records. The Director also submitted testimony given by
Rowan in a prior related case. In his testimony, Rowan described his
medical problems and his history of coal-mine employment and stated
that he had smoked about a pack of cigarettes a day since 1950.
The evidence submitted by the Claimant included the reports of
Drs. Franyutti, Rasmussen, Doyle, and Harron. All these doctors con-
cluded that coal workers' pneumoconiosis contributed to Rowan's
death. Additionally, the Claimant and one of Rowan's coworkers tes-
tified at the hearing in support of the claim for benefits.
The evidence submitted by BethEnergy included the reports of Drs.
Bush and Hutchins, the deposition testimony of Dr. Renn, the report
and deposition testimony of Dr. Kleinerman, and the report and depo-
sition testimony of Dr. Fino. All these doctors concluded that coal
workers' pneumoconiosis did not contribute to Rowan's death.
BethEnergy also submitted the deposition testimony of Dr. Franyutti.
In the decision and order awarding benefits, the ALJ first deter-
mined that Rowan worked in the coal mines for at least twenty-four
years. The ALJ then summarized each of the medical reports and
recounted the testimony given by Rowan before he died, the testi-
mony given by the Claimant and Rowan's coworker at the hearing,
and the deposition testimony of Drs. Franyutti, Kleinerman, Fino, and
Renn. The ALJ noted that the statement on the death certificate that
Rowan's death was due to chronic obstructive pulmonary disease "is
not inconsistent with the definition of pneumoconiosis" in 20 C.F.R.
§ 718.201. (J.A. 225-26). The ALJ observed that five doctors (Drs.
Franyutti, Gaziano, Rasmussen, Doyle and Harron) concluded that
pneumoconiosis contributed to Rowan's death, and five doctors (Drs.
Kleinerman, Bush, Hutchins, Fino, and Renn) concluded that pneu-
moconiosis did not contribute to Rowan's death. The ALJ then stated:
While there are an equal number of experts on both sides,
I am more persuaded by the evidence in favor of the Claim-
3
ant because: (1) Dr. Franyutti was the one who performed
the autopsy and was in the best position to make a judgment,
while none of [BethEnergy's] doctors saw [Rowan] after he
died, and (2) Dr. Gaziano was hired by the District Director
to make an evaluation and not by either the Claimant or
[BethEnergy], so he has a more impartial status. Both Drs.
Franyutti and Gaziano believed that pneumoconiosis con-
tributed to the miner's death. Moreover, in considering this
issue, I am mindful of the miner's many years of coal mine
employment. Under these circumstances, I find that the
Claimant has established that pneumoconiosis was a sub-
stantially contributing cause or factor leading to the miner's
death . . . .
(J.A. 226). Accordingly, the ALJ awarded survivor's benefits to the
Claimant.
The Board affirmed the ALJ's award of benefits. The Board con-
cluded that the ALJ weighed the evidence and properly gave determi-
native weight to Dr. Franyutti's opinion because Dr. Franyutti
performed the autopsy. The Board also concluded,"We need not
address the [ALJ's] findings with respect to Dr. Gaziano's opinion
since the [ALJ] provided a proper, alternative reason for finding that
the miner's death was due to pneumoconiosis." (J.A. 230 n.1).
BethEnergy noted a timely appeal from the Board's order.
II.
Before addressing BethEnergy's arguments on appeal, we must
consider the principles that govern our review of black lung cases.
The ALJ is charged with making factual findings, including evaluat-
ing the credibility of witnesses and weighing contradicting evidence.
Doss v. DOWCP, 53 F.3d 654, 658 (4th Cir. 1995). The Board
reviews the ALJ's findings to determine if they are supported by sub-
stantial evidence. Id.; see 33 U.S.C. § 921(b)(3). We review the
Board's decision only for errors of law and to ensure that the Board
adhered to the correct standard of review. Doss , 53 F.3d at 658.
Therefore, we must affirm the Board's decision if the Board properly
decided that the ALJ's findings are supported by substantial evidence.
Id. at 659. To determine whether the ALJ's findings are supported by
4
substantial evidence, we undertake an independent review of the
record. Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir.
1995). But in undertaking our independent review of the record, we
must confine our review to the grounds upon which the Board based
its decision. See Grigg v. DOWCP, 28 F.3d 416, 418 (4th Cir. 1994);
see also Securities & Exchange Comm'n v. Chenery Corp., 318 U.S.
80, 87 (1943).1 With these principles in mind, we now address
BethEnergy's arguments on appeal.
III.
We note initially that BethEnergy concedes that the record contains
substantial evidence that could support a finding that pneumoconiosis
contributed to Rowan's death. Despite this concession, BethEnergy
contends that the Board's decision affirming the award of benefits
should be vacated and the case remanded to the Board with instruc-
tions to remand to the ALJ for further proceedings. According to
BethEnergy, further proceedings are necessary because the ALJ failed
to explain sufficiently his reasons for crediting the opinion of Dr.
Franyutti and failed to evaluate the other relevant evidence as the law
requires. We agree.
Dr. Franyutti performed the autopsy on Rowan. Because the
autopsy prosector, unlike reviewing pathologists, has the opportunity
to conduct a gross examination, it is permissible in some cases for an
ALJ to credit the opinion of the autopsy prosector over the opinions
of reviewing pathologists.2 See Peabody Coal Co. v. DOWCP, 972
_________________________________________________________________
1 For this reason, we do not address the ALJ's reliance on Dr. Gazi-
ano's opinion. Because the Board specifically declined to consider the
ALJ's crediting of Dr. Gaziano's opinion as a basis for affirming the
award of benefits, we are precluded from considering it as well. See
Dayton v. Consolidation Coal Co., 895 F.2d 173, 175 (4th Cir. 1990)
(holding that in reviewing the decision of the Benefits Review Board, the
court must confine itself to the grounds upon which the Board based its
decision and may not consider determinations of the ALJ that were not
addressed by the Board), rev'd sub nom. on other grounds, Pauley v.
BethEnergy Mines, Inc., 501 U.S. 680 (1991).
2 An autopsy prosector conducts both a gross examination of the
miner's lungs and a microscopic examination of slides of lung tissue. See
5
F.2d 178, 182 (7th Cir. 1992); United States Steel Corp. v. Oravetz,
686 F.2d 197, 200 (3d Cir. 1982). But it is improper for an ALJ to
give the opinion of the autopsy prosector determinative weight with-
out considering the quality of the autopsy prosector's opinion and the
quality of reviewing pathologists' contrary opinions. See Peabody
Coal, 972 F.2d at 182 (refusing to condone an ALJ's preference for
the autopsy prosector's opinion as "a blanket rule"); Freeman United
Coal Mining Co. v. Stone, 957 F.2d 360, 362 (7th Cir. 1992)
("Though ALJs have discretion in weighing conflicting medical evi-
dence, they are still required to at least consider all of the relevant evi-
dence presented."). And an ALJ should provide an adequate rationale
for concluding, under the facts of the case, that the autopsy prosec-
tor's opportunity to conduct a gross examination, rather than merely
review slides, renders the autopsy prosector's opinion superior to the
reviewing pathologists' opinions. See Freeman United Coal Mining,
957 F.2d at 362 (holding that an ALJ erred in disregarding the opin-
ions of certain doctors and relying on the autopsy report when nothing
in the record suggested that access to the body enhanced the accuracy
of the autopsy prosector's opinion); Urgolites , 17 Black Lung Rep. at
1-23 (holding that an ALJ erred by not giving an adequate rationale
for concluding that the autopsy prosector's gross examination ren-
dered his opinion superior to the opinions of doctors who reviewed
the slides).
Here, Dr. Franyutti performed the autopsy, conducting both a gross
examination of Rowan's lungs and a microscopic examination of
slides of lung tissue. He concluded that coal workers' pneumoconiosis
contributed to Rowan's death. But three of the doctors retained by
BethEnergy--Drs. Kleinerman, Bush, and Hutchins--conducted
microscopic examinations of the same lung tissue examined by Dr.
Franyutti and concluded that coal workers' pneumoconiosis did not
_________________________________________________________________
Urgolites v. BethEnergy Mines, Inc., 17 Black Lung Rep. 1-20, 1-23
(BRB 1992). The autopsy prosector then prepares an autopsy protocol
containing a gross description and a microscopic description. Reviewing
pathologists conduct their own independent microscopic examinations of
the slides of lung tissue. But they are dependent on the autopsy prosec-
tor's description of the gross examination of the lungs. See Urgolites, 17
Black Lung Rep. at 1-23.
6
contribute to Rowan's death. The ALJ did not evaluate the quality of
Dr. Franyutti's opinion and the quality of the contrary opinions of
Drs. Kleinerman, Bush, and Hutchins. Therefore, the ALJ had no
basis for concluding that Dr. Franyutti's microscopic examination
was superior to the opinions of Drs. Kleinerman, Bush, and Hutchins.3
The ALJ also did not provide an adequate rationale for concluding
that Dr. Franyutti's opportunity to conduct a gross examination ren-
dered his opinion superior to the opinions of Drs. Kleinerman, Bush,
and Hutchins, who only conducted microscopic examinations. The
ALJ simply stated, "Dr. Franyutti was the one who performed the
autopsy and was in the best position to make a judgment, while none
of [BethEnergy's] doctors saw the miner after he died." (J.A. 226).
This bald conclusion, under the facts of this case, does not provide a
basis for affirming the award of benefits. See Jordan v. Califano, 582
F.2d 1333, 1335 (4th Cir. 1978) ("A bald conclusion, unsupported by
reasoning or evidence, is 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.").
_________________________________________________________________
3 The ALJ did make an oblique reference to the quality of the opinions
of Drs. Kleinerman, Bush, and Hutchins by stating,"Dr. Gaziano was
hired by the District Director to make an evaluation and not by either the
Claimant or [BethEnergy], so he has a more impartial status." (J.A. 226).
To the extent that this statement reflects a finding that the doctors
retained by BethEnergy are not credible merely because they were
retained by BethEnergy, the finding is erroneous. An ALJ may not attri-
bute bias to doctors because they were hired by one of the parties. See
Melnick v. Consolidation Coal Co., 16 Black Lung Rep. 1-31, 1-36
(BRB 1991) (en banc) ("[W]ithout specific evidence indicating that a
report prepared for [an] employer is unreliable, an administrative law
judge should consider that report as equally reliable as the other reports
of record."). As the Supreme Court has stated in a related context:
Although each [physician] received a fee, that fee is recompense
for . . . time and talent otherwise devoted to private practice or
other professional assignment. We cannot, and do not, ascribe
bias to the work of these independent physicians, or any interest
on their part in the outcome of the administrative proceeding
beyond the professional curiosity a dedicated [physician] pos-
sesses.
Richardson v. Perales, 402 U.S. 389, 403 (1971).
7
The ALJ did not provide any reasoning to support the conclusion
that Dr. Franyutti "was in the best position to make a judgment"
because he performed the autopsy. Moreover, it is not clear from the
evidence in the record on appeal that Dr. Franyutti's gross examina-
tion was important to his determination that pneumoconiosis contrib-
uted to Rowan's death. A consultative report prepared by Dr.
Franyutti over one year after he performed the autopsy states, in its
entirety, "It is my opinion that the diffuse pneumoconiosis and pulmo-
nary emphysema were contributing factors in the death of Mr. Delmer
B. Rowan." (J.A. 216). At his deposition, Dr. Franyutti testified that
generally it is necessary to conduct both a gross and a microscopic
examination to confirm the presence of coal workers' pneumoconio-
sis, but that a pathologist who reads the autopsy prosector's descrip-
tion of the gross examination and conducts an independent
microscopic examination of slides of lung tissue would have a similar
ability to confirm the presence of coal workers' pneumoconiosis as
the autopsy prosector. Dr. Kleinerman testified that in this case his
review of Dr. Franyutti's description of the gross examination and his
examination of the slides of lung tissue were "perfectly adequate" to
determine "the extent and degree of any disease which may have
occurred in the lung." (J.A. 200). Thus, we cannot say that this case
is "so one-sided as to be obvious." See Jordan, 582 F.2d at 1335.
When an ALJ has not evaluated or sufficiently explained the
weight accorded the relevant evidence, "to say that [the ALJ's] deci-
sion is supported by substantial evidence approaches an abdication of
the court's ``duty to scrutinize the record as a whole to determine
whether the conclusions reached are rational.'" See Arnold v. Secre-
tary of Health, Educ. & Welfare, 567 F.2d 258, 259 (4th Cir. 1977)
(quoting Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974)). We
cannot, as the dissent suggests, overlook the inadequacy of the ALJ's
reasoning simply because the record contains substantial evidence
that could support a finding in favor of the claimant. It is well settled
that at the center of the ALJ's adjudicative role is his duty to provide
reasoned analysis in support of his conclusions. To allow a divorce
of one from the other would create a dangerous system where an
ALJ's reasoning would be beyond review. For the sake of all claim-
ants and employers in Black Lung benefit cases, this, we cannot
allow. Here, because the ALJ did not evaluate or sufficiently explain
8
the weight accorded the relevant evidence, this case must be
remanded to the ALJ for further proceedings.4
IV.
We grant BethEnergy's petition for review. For the reasons stated
herein, the Board's decision is vacated and the case is remanded to
the Board with instructions to remand to the ALJ for further proceed-
ings consistent with this opinion.
IT IS SO ORDERED
HALL, Circuit Judge, dissenting:
Today, in a case where the employer does not dispute the existence
of substantial evidence in the record to support an award of benefits,
the majority takes the rather remarkable step of scuttling the sound
judgment of the ALJ and BRB -- not because it disagrees with the
ultimate disposition of Shirley Rowan's claim, but because the ALJ
chose to succinctly articulate the reasons for his ruling. As a jurist
who believes that clarity is enhanced by brevity, I question the wis-
dom of the volume of words and pedantry of analysis demanded by
today's decision.
_________________________________________________________________
4 BethEnergy also argues that the ALJ erred by asserting that the "state-
ment on the death certificate that chronic obstructive pulmonary disease
was involved is not inconsistent with the definition of pneumoconiosis"
in 20 C.F.R. § 718.201. It is not clear whether the ALJ relied on this
assertion in concluding that coal workers' pneumoconiosis was a sub-
stantially contributing cause of Rowan's death. For purposes of remand,
we remind the ALJ that pneumoconiosis is defined in 20 C.F.R.
§ 718.201 to include "any chronic pulmonary disease resulting in respira-
tory or pulmonary impairment significantly related to, or substantially
aggravated by, dust exposure in coal mine employment." Thus, while a
diagnosis of chronic obstructive pulmonary disease is literally not incon-
sistent with a finding of legal pneumoconiosis, such a diagnosis is not
sufficient to establish legal pneumoconiosis without a finding that the
disease was related to coal-mine employment.
9
Shirley's burden of establishing that pneumoconiosis substantially
contributed to her husband's demise is not an onerous one. She is
entitled to survivor's benefits if pneumoconiosis served to hasten Del-
mer's death in any way. Shuff v. Cedar Coal Co. , 967 F.2d 977, 979-
80 (4th Cir. 1992), cert. denied, 506 U.S. 1050 (1993).
It is undisputed that Delmer had pneumoconiosis. It is undisputed
that Delmer worked in the mines for at least 24 years, and that an
autopsy revealed an accumulation of anthracotic pigment in his lungs.
No fewer than five qualified physicians, including the autopsy prosec-
tor, have concluded that Delmer's death was hastened by his pneumo-
coniosis. Every single medical opinion to the contrary submitted by
the employer is premised, in whole or in very substantial part, on the
discredited assumption that an obstructive pulmonary disorder, such
as that suffered by Delmer, cannot be caused by coal mine employ-
ment. See Warth v. Southern Ohio Coal Co., 60 F.3d 173, 174 (4th
Cir. 1995); Eagle v. Armco, Inc., 943 F.2d 509, 511 n.2 (4th Cir.
1991) (expert opinion that breathing coal mine dust does not cause
chronic obstructive lung disease "must be considered bizarre in view
of [ ] Congress' explicit finding to the contrary."); see also Stiltner v.
Island Creek Coal Co., No. 95-1192, 1996 WL 328634, at *3 ("[W]e
have rejected as inimical to the [Black Lung Benefits] Act the prem-
ise that obstructive disorders cannot be caused by coal-mine employ-
ment. . . .") (citation and internal quotation marks omitted). At oral
argument, counsel for the company candidly conceded that his client
did not dispute the existence of substantial evidence in the record to
support an award of benefits, but that it instead challenged the ALJ's
methodology in arriving at a conclusion.
This challenge should be to no avail. The ALJ's decision and order
faithfully summarized the opinions of the various experts; it is, there-
fore, evident that he considered each and every one of them. In the
end, the ALJ gave determinative weight to Delmer's lengthy mine
employment and to the opinions of two of the experts who had con-
cluded that Delmer's death had been hastened by pneumoconiosis.
This decision was well within the scope of the discretion accorded the
ALJ to weigh the evidence.
The BRB did not question any of the ALJ's stated grounds in sup-
port of his conclusion; rather, it explicitly approved of the ALJ's deci-
10
sion to give the opinion of the autopsy prosector substantial weight.
Although such an approach may run afoul of Seventh Circuit prece-
dent, see ante at 5-6, the Fourth Circuit does not require the prosec-
tor's opinion to itself be subjected to what is, in effect, a "legal"
autopsy. It should be sufficient that the opinion is grounded in objec-
tive fact and is logical. Dr. Franyutti's opinion in this case undoubt-
edly meets those standards.
Having deemed his reliance on Dr. Franyutti's opinion sufficient,
the BRB chose not to address the ALJ's decision to credit Dr. Gazi-
ano's opinion and Delmer's employment longevity. It is, perhaps,
unfortunate that the BRB did not expound more fully, in light of the
majority's apparent willingness to seize upon its economy of verbiage
as an excuse to have the ALJ reexamine what appears to be a clearly
meritorious claim. Although it seems improbable that such a reexami-
nation will produce a different result, it is inevitable that further pro-
ceedings will add to the expense of litigating this claim, which inures
to the detriment of all.
I dissent.
11