Eastern Associated Coal Corp. v. Director, Office of Workers' Compensation Programs ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EASTERN ASSOCIATED COAL 
CORPORATION,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’  No. 02-1694
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR; JUDY
G. LILLY, Widow of Harry W. Lilly,
Respondents.

On Petition for Review of an Order of
the Benefits Review Board.
(01-393-BLA)
Argued: September 23, 2003
Decided: October 30, 2003
Before MOTZ, KING, and SHEDD, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
COUNSEL
ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG,
Washington, D.C., for Petitioner. Frederick Klein Muth, HENSLEY,
MUTH, GARTON & HAYES, Bluefield, West Virginia, for Respon-
dents. ON BRIEF: Laura Metcoff Klaus, GREENBERG TRAURIG,
Washington, D.C., for Petitioner.
2 EASTERN ASSOCIATED COAL CORP. v. DOWCP
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Eastern Associated Coal Corporation petitions for our review of the
January 24, 2002 Decision and Order of the Benefits Review Board
(the "BRB"), upholding the award of Black Lung disability and survi-
vor benefits to Judy Lilly, the widow of coal miner Harry Lilly.1 An
Administrative Law Judge ("ALJ") determined that Mr. Lilly was dis-
abled by coal workers’ pneumoconiosis and that the disease caused
his death. As explained below, the ALJ’s decision was supported by
substantial evidence, and she offered sufficient rationale for crediting
and discrediting the conflicting evidence of certain physicians. We
therefore deny the petition for review.
I.
Harry Lilly worked underground in the coal mines of southern
West Virginia for approximately eighteen years. He was most
recently employed as a belt man at an Eastern mine near Bald Knob,
West Virginia, until he was laid off in 1992. Mr. Lilly filed his initial
claim for Black Lung disability benefits on September 14, 1993. That
initial claim was denied, as was his motion for modification.
In 1996, Mr. Lilly, a cigarette smoker, was diagnosed with lung
cancer and, as a result, the upper lobe of his right lung was removed.
Although this surgery was largely successful in removing his primary
cancer, within three months doctors discovered that the cancer had
metastasized to Mr. Lilly’s bones and spine. Because the cancer had
reached an advanced stage, Mr. Lilly was not treated with radiation
or chemotherapy. Instead, he was placed under hospice care to make
his final months more bearable. Mr. Lilly subsequently developed
pneumonia and died on November 2, 1996.
1
The Director of the Office of Workers’ Compensation Programs did
not participate in this appeal.
EASTERN ASSOCIATED COAL CORP. v. DOWCP 3
After Mr. Lilly’s death, his wife Judy filed a claim for Black Lung
survivor’s benefits, which was denied. Mrs. Lilly then appealed the
denial of both her claim for survivor’s benefits and her husband’s
claim for disability benefits. An ALJ heard Mrs. Lilly’s appeal and,
on January 29, 1999, granted benefits on both claims (the "ALJ Deci-
sion"). Eastern appealed the ALJ Decision to the BRB, contending
that the ALJ erred by mechanistically according greater weight to the
opinions of Dr. Donald Rasmussen, Mr. Lilly’s treating physician,
and Dr. Antonio Dy, the prosector of Mr. Lilly’s autopsy. Eastern also
claimed that the ALJ erred in failing to offer a sufficient explanation
for her decision to discredit the evidence of several other physicians.
The BRB agreed with Eastern and, on April 7, 2000, remanded the
matter to the ALJ with instructions that her rationale for crediting and
discrediting the evidence of the physicians be explained. On Decem-
ber 22, 2000, the ALJ offered a further explanation of her rationale
and again awarded benefits to Mrs. Lilly (the "ALJ Remand Deci-
sion"). Eastern again appealed to the BRB, which, by its Order of Jan-
uary 24, 2002 (the "BRB Decision"), upheld the ALJ’s award of
benefits. Eastern now petitions for review of the BRB Decision.
II.
This court reviews a BRB decision to determine whether it prop-
erly concluded that the ALJ’s decision was supported by substantial
evidence. Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir.
1998). As we have explained, "[s]ubstantial evidence amounts to
‘more than a scintilla, but less than a preponderance.’" Weis Mkts.,
Inc. v. NLRB, 265 F.3d 239, 243 (4th Cir. 2001) (quoting Pirelli
Cable Corp. v. NLRB, 141 F.3d 503, 514 (4th Cir. 1998)). See also
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (holding that
substantial evidence "means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion"). In conduct-
ing our review of a BRB decision, we are obliged to make an inde-
pendent examination of the record, bearing in mind that "‘a reviewing
body may not set aside an inference merely because it finds the oppo-
site conclusion more reasonable or because it questions the factual
basis.’" Doss v. Director, OWCP, 53 F.3d 654, 659 (4th Cir. 1995)
(quoting Smith v. Director, OWCP, 843 F.2d 1053, 1057 (7th Cir.
1988)). In making this determination, we must ensure that the ALJ
has adhered to her statutory duty "to analyze ‘all of the relevant evi-
4 EASTERN ASSOCIATED COAL CORP. v. DOWCP
dence’ and to provide a sufficient explanation for [her] ‘rationale in
crediting certain evidence.’" Bill Branch Coal Corp. v. Sparks, 213
F.3d 186, 190 (4th Cir. 2000) (quoting Milburn Colliery Co., 138
F.3d at 528).
III.
In order to succeed on a claim for Black Lung disability benefits,
"a claimant must prove that (1) he has pneumoconiosis; (2) the pneu-
moconiosis arose out of his coal mine employment; (3) he has a
totally disabling respiratory or pulmonary condition; and (4) pneumo-
coniosis is a contributing cause to his total respiratory disability." Mil-
burn Colliery Co., 138 F.3d at 529; see also 20 C.F.R. § 718.202-
.204. In order to secure survivor’s benefits, a surviving spouse must
demonstrate, in addition to (1) and (2) above, that her decedent’s
death was "due to pneumoconiosis." Id. § 718.205(a). Under the
applicable regulations, a miner’s death "will be considered to be due
to pneumoconiosis if . . . pneumoconiosis was a substantially contrib-
uting cause or factor leading to the miner’s death . . . ." Id.
§ 718.205(c)(2). The regulations further explain that
"[p]neumoconiosis is a ‘substantially contributing cause’ of a miner’s
death if it hastens the miner’s death." Id. § 718.205(c)(5). In this pro-
ceeding, the parties do not dispute that Mr. Lilly suffered from pneu-
moconiosis or that his pneumoconiosis arose out of his coal mine
employment. Instead, they disagree over whether Mr. Lilly’s pneumo-
coniosis was a substantially contributing cause of his disability and
death.
A.
In determining whether there is substantial evidence of Mr. Lilly’s
disability and death due to pneumoconiosis, the ALJ was obliged to
evaluate and choose between the conflicting medical opinions pres-
ented by two groups of physicians, one group supporting Mrs. Lilly’s
claims2 and another group refuting them on behalf of Eastern.3 When
2
The medical opinions supporting Mrs. Lilly’s claims were provided
by three physicians, Dr. Rasmussen, Dr. Boustani, and Dr. Dy.
3
The opinions refuting Mrs. Lilly’s claims and relied on by Eastern
were provided by eight physicians: Drs. Tuteur, Kleinerman, Renn, Fino,
Lockey, Weiss, Ranavaya, and Zaldivar.
EASTERN ASSOCIATED COAL CORP. v. DOWCP 5
such disputes arise, an ALJ’s judgment is restricted only by the rules
that she must not base her determination on any impermissible
grounds and that she must fully explain her rationale. See Bill Branch
Coal Corp., 213 F.3d at 190.
1.
Eastern first asserts that the ALJ based her determination on two
impermissible grounds: (1) Dr. Rasmussen’s status as treating physi-
cian; and (2) Dr. Dy’s status as prosector of the autopsy. In this
regard, Eastern correctly posits that "an ALJ should not ‘mechanisti-
cally credit[ ], to the exclusion of all other testimony,’ the testimony
of an examining or treating physician solely because the doctor per-
sonally examined the claimant." Milburn Colliery Co., 138 F.3d at
533 (quoting Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441
(4th Cir. 1997)). At the same time, a treating physician’s opinion is
entitled to "great, though not necessarily dispositive, weight." Grigg
v. Director, OWCP, 28 F.3d 416, 420 (4th Cir. 1994). Eastern is also
correct that "ALJs are not to credit the opinions of an autopsy prosec-
tor, to the exclusion of all other experts, solely because the autopsy
prosector was the only physician to examine the whole body near the
time of death." Bill Branch Coal Corp., 213 F.3d at 192. Like the
BRB, however, we are satisfied that the ALJ did not mechanistically
credit the opinions of Drs. Rasmussen and Dy, to the exclusion of all
other evidence, based solely on their status. Instead, as explained
below, her decisions provided a reasoned analysis of why she found
these physicians’ opinions credible.
Upon remand from the BRB, the ALJ explained that she credited
the evidence of Dr. Rasmussen for several reasons: (1) he has exten-
sive clinical experience treating coal miners; (2) he has published
numerous articles on coal workers’ pneumoconiosis; (3) his diagnosis
was based on objective arterial blood gas studies performed by him-
self and others; and (4) his diagnosis was confirmed by the autopsy.
ALJ Remand Decision at 6. The ALJ further explained that she cred-
ited Dr. Rasmussen’s opinion because she found it well documented
and well reasoned. Id. It was clearly within the ALJ’s discretion to
find, based on the foregoing, that Dr. Rasmussen was more credible
than other physicians who, according to Eastern, possess superior aca-
demic qualifications.
6 EASTERN ASSOCIATED COAL CORP. v. DOWCP
The ALJ similarly offered sufficient explanation as to why she
credited the evidence of Dr. Dy, the prosector of the autopsy. The
ALJ carefully explained that she credited the prosector’s opinion, not
mechanistically based on his title alone, but because he listed specific
observations that led him to conclude that Mr. Lilly’s left lung con-
tained moderate pneumoconiosis and his right contained mild pneu-
moconiosis. Id. at 3. In particular, Dr. Dy observed a macule
measuring one centimeter, pleural interstitial fibrosis, and intra-
alveolar anthracotic macrophages. Id. The ALJ was entitled to find
that Dr. Dy’s opinion was well supported because it was based on
these direct observations. As explained below, the ALJ sufficiently
justified her decision to discount the opinions of the physicians who
expressed contrary views. The ALJ thus did not mechanistically credit
the opinion of the prosector to the exclusion of all other experts. See
Bill Branch Coal Corp., 213 F.3d at 192.
2.
Eastern also maintains that the ALJ erred in according lesser
weight to the opinions of physicians who expressed views contrary to
those of Drs. Rasmussen and Dy. Because the ALJ explained her rea-
soning in that regard and did not rely on any impermissible bases, we
must defer to her discretion and judgment in assessing the conflicts
in the evidence. Stiltner v. Island Creek Coal Co., 86 F.3d 337, 342
(4th Cir. 1996).
First, the ALJ did not improperly discredit the opinion of Dr. Peter
Tuteur. Dr. Tuteur reviewed certain of Mr. Lilly’s medical reports, x-
ray reports, and pulmonary function studies, and he concluded that
Mr. Lilly did not present clinically, physiologically, or radiologically
significant pneumoconiosis. The ALJ reasonably discounted Dr.
Tuteur’s opinion because he issued his report two years prior to Mr.
Lilly’s death. In that circumstance, it was not inappropriate for the
ALJ to accord less weight to an opinion premised on incomplete
information. The ALJ analyzed Dr. Tuteur’s opinion and explained
why she found it less than convincing. Nothing more is required of
her. See Milburn Colliery Co., 138 F.3d at 528.
The ALJ was also unconvinced by the opinions of Drs. Jerome
Kleinerman, Joseph Renn, and Greg Fino because they failed to
EASTERN ASSOCIATED COAL CORP. v. DOWCP 7
explain to her satisfaction why they had characterized Mr. Lilly’s
pneumoconiosis as mild when Dr. Dy’s autopsy report described it as
moderate in the left lung. In addition, the ALJ explained that she cred-
ited Dr. Fino’s opinion less because he did not examine the autopsy
slides and because he is not a pathologist. She further explained that
she discounted Dr. Renn’s opinion because, upon diagnosing emphy-
sema, he refused to consider whether pneumoconiosis also could have
played some role in Mr. Lilly’s death. None of these were improper
bases for discounting a physician’s opinion.
Eastern also complains that the ALJ erred in declining to credit the
opinion of Dr. James Lockey, who opined that Mr. Lilly’s pneumoco-
niosis was "not a materially contributing factor" in his death. As the
ALJ explained, she accorded Dr. Lockey’s opinion little weight
because he did not discuss the role that pneumoconiosis played in Mr.
Lilly’s chronic lung disease and, more importantly, because Dr.
Lockey did not define what he meant by "materially." ALJ Decision
at 16. Contrary to Eastern’s assertion, the ALJ did not premise her
decision to disregard this evidence on impermissible grounds. She
simply found Dr. Lockey’s opinion to be of little assistance in making
her determination because she did not know what Dr. Lockey meant
by "materially." Under the regulations, Mr. Lilly’s death was "due to
pneumoconiosis" if pneumoconiosis hastened his death at all, 20
C.F.R. § 718.205(c)(2), (5), yet Dr. Lockey may have considered a
mere hastening of death to be medically immaterial. Because Dr.
Lockey did not explain what he meant by "materially," his opinion
failed to aid the ALJ in her efforts to reach a legal conclusion; there-
fore, she did not err in disregarding it.
Next, Eastern asserts that the ALJ erred in discounting the opinion
of oncologist Dr. Raymond Weiss. Dr. Weiss stated that the median
life-span for a patient with lung cancer in Stage IV is seven months
and that, because Mr. Lilly survived five months in that stage, his sur-
vival was within the expected range.4 Dr. Weiss — who is not a pul-
monologist5 — concluded that Mr. Lilly’s pneumoconiosis therefore
4
According to Dr. Weiss, lung cancer reaches Stage IV when it spreads
to the bones, brain, liver, lymph nodes, adrenal glands, or any other part
of the body.
5
Pulmonology is "the science concerned with the anatomy, physiology,
and pathology of the lungs." Dorland’s Illustrated Medical Dictionary
1386 (28th ed. 1994).
8 EASTERN ASSOCIATED COAL CORP. v. DOWCP
could not have hastened his death. The ALJ accorded little weight to
Dr. Weiss’s testimony because he did not address the vital issue in the
case: whether pneumoconiosis was a factor in the lung impairment
that led to Mr. Lilly’s death. There was nothing improper in the ALJ
disregarding an expert’s opinion that did not address the important
issues in the case. More important, though, Dr. Weiss’s testimony
should be disregarded for another reason: it suffers from a serious
logical flaw. Although Mr. Lilly’s life-span was as expected for a
man with Stage IV lung cancer, he may have lived longer had he not
suffered from pneumoconiosis. Dr. Weiss failed to recognize and
address this possibility; therefore, the ALJ properly disregarded his
opinion.
The ALJ was also correct in giving no weight to the opinion of Dr.
Mohammed Ranavaya, who simply placed the word "No" on a form
asking whether pneumoconiosis was a substantially contributing
cause of Mr. Lilly’s death. The ALJ did not err in according Dr.
Ranavaya’s opinion little weight because he provided no rationale or
support for it. See Milburn Colliery Co., 138 F.3d at 532 n.9 (noting
that "[a]n ALJ has discretion to disregard an opinion unsupported by
a sufficient rationale").
Finally, Eastern complains that the ALJ improperly discredited the
evidence of Dr. George Zaldivar because she found that he expressed
no opinion on the extent of Mr. Lilly’s respiratory impairment. East-
ern is correct that the ALJ’s characterization of Dr. Zaldivar’s report
was inaccurate, as Dr. Zaldivar found that "[f]rom a pulmonary stand-
point Mr. Lilly is not capable of performing his usual coal mining
work. He would not be capable of performing more than light work
on a continuous basis." Despite this apparent oversight, our decision
in this proceeding remains unchanged. The ALJ analyzed Dr. Zaldi-
var’s report only in the context of her discussion of whether Mr. Lilly
was totally disabled, an issue on which the physicians largely agreed.
She did not purport to credit or discredit Dr. Zaldivar’s opinion on
other issues based on this assessment. We must therefore conclude
that this isolated mischaracterization does not warrant the relief East-
ern seeks.
B.
Having determined that the ALJ’s methodology for interpreting the
evidence was not improper, we turn to the issue of whether the award
EASTERN ASSOCIATED COAL CORP. v. DOWCP 9
of benefits to Mrs. Lilly by the BRB and the ALJ is supported by sub-
stantial evidence. See Milburn Colliery Co., 138 F.3d at 528. In
reviewing for substantial evidence, we are mindful that mechanically
tallying the number of physicians on each side is improper. Sterling
Smokeless Coal Co., 131 F.3d at 440. Additionally, we do not substi-
tute our judgment for that of an ALJ, even if we might have reached
the opposite result. Doss, 53 F.3d at 659.
Our review of the physicians’ reports and testimony convinces us
that the ALJ’s award of benefits is supported by substantial evidence.
Dr. Rasmussen found that Mr. Lilly was totally disabled due to
chronic lung disease, which was caused in part by pneumoconiosis.
Dr. Rasmussen offered concrete, specific reasons for this conclusion:
(1) a chest x-ray indicated pneumoconiosis, which was confirmed by
the autopsy; and (2) Mr. Lilly’s gas exchange impairment was much
greater than his ventilatory capacity impairment.
Similarly, Dr. Rasmussen affirmatively concluded that coal dust
exposure contributed to Mr. Lilly’s death because coal dust produces
emphysema and interstitial fibrosis. Dr. Rasmussen’s report reflects
that cigarette smoking and coal dust were both risk factors, but that
the latter was "at least a major and probably the most significant
cause of his lung disease." Dr. Rasmussen reached this conclusion
because Mr. Lilly’s gas exchange impairment was much greater than
his ventilatory capacity impairment, which suggested significant
interstitial lung disease. According to Dr. Rasmussen, this lung dis-
ease made Mr. Lilly more susceptible to and less capable of surviving
the pneumonia that eventually killed him.
Certainly, Eastern submitted evidence supporting the proposition
that Mr. Lilly’s blood gas studies did not indicate impairment caused
by pneumoconiosis. As discussed above, however, the ALJ permissi-
bly found Dr. Rasmussen to be more credible. And Dr. Rasmussen’s
diagnosis was not premised on mere conjecture; it was supported by
specific reasoning and interpretation of blood tests. His opinion,
therefore, was appropriately considered as evidence supporting the
award of benefits.
Dr. Rasmussen’s opinion is buttressed by that of Dr. Maria Bou-
stani, who also treated Mr. Lilly. Dr. Boustani found that both
10 EASTERN ASSOCIATED COAL CORP. v. DOWCP
tobacco smoke and coal dust contributed in an unknown ratio to Mr.
Lilly’s impairment. She reached this conclusion because, signifi-
cantly, Mr. Lilly’s smoking history and the amount of emphysema in
his lungs were insufficient to explain the degree of impairment he
exhibited. Dr. Boustani thus concluded that pneumoconiosis contrib-
uted to Mr. Lilly’s death.
Finally, Dr. Dy’s autopsy confirmed the presence of macroscopic
pneumoconiosis in Mr. Lilly’s lungs. In fact, Mr. Lilly’s lungs proba-
bly once contained even more pneumoconiosis than Dr. Dy discov-
ered because pneumoconiosis, according to Dr. Kleinerman, would
more likely have been present in the portion of Mr. Lilly’s right lung
that had been removed.
In light of the foregoing, Mrs. Lilly presented such evidence as was
necessary to convince a reasonable mind that pneumoconiosis was a
substantially contributing cause of Mr. Lilly’s death and disability.
See Consol. Edison Co., 305 U.S. at 229; 20 C.F.R. § 718.205(c)(2).
Drs. Rasmussen and Boustani offered definitive testimony that, in
their considered medical opinions, Mr. Lilly’s pneumoconiosis con-
tributed to his disability and death. Although certain other physicians
opined that coal dust does not cause emphysema, and some stated that
it causes a type of emphysema distinguishable from that caused by
tobacco smoke, it is for the ALJ to determine which of the conflicting
medical opinions are to be credited. Stiltner, 86 F.3d at 342. Because
the ALJ did not improperly credit or discredit the physicians’ opin-
ions, and because her decision is supported by substantial evidence,
the award of Black Lung disability and survivor benefits to Mrs. Lilly
is not to be disturbed.
IV.
Pursuant to the foregoing, we deny Eastern’s petition for review.
PETITION FOR REVIEW DENIED