Yogi Mining Company v. Fife , 159 F. App'x 441 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2140
YOGI MINING COMPANY,
Petitioner,
versus
TERRY M. FIFE; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(02-520-BLA)
Argued: September 19, 2005 Decided: December 7, 2005
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Ronald Eugene Gilbertson, BELL, BOYD & LLOYD, Washington,
D.C., for Petitioner. Terry Gene Kilgore, WOLFE, WILLIAMS &
RUTHERFORD, Norton, Virginia, for Respondents. ON BRIEF: Joseph E.
Wolfe, W. Andrew Delph, Jr., WOLFE, WILLIAMS & RUTHERFORD, Norton,
Virginia, for Respondents.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
This appeal arises from a claim for benefits made by
respondent Terry M. Fife in 1998 under the Black Lung Benefits Act
(the “Act”). See 30 U.S.C. §§ 901-945. By this proceeding,
petitioner Yogi Mining Company, Inc., challenges the April 2003
decision of the Benefits Review Board (the “Board”), which affirmed
an award of black lung benefits made to Fife by an administrative
law judge (the “ALJ”). Yogi Mining maintains on appeal that the
evidence was insufficient to support the ALJ’s finding that Fife
was totally disabled due to pneumoconiosis, commonly known as black
lung disease. As explained below, we affirm the Board.
I.
A.
Terry Fife worked underground in the coal mines of southwest
Virginia for seventeen years, most recently as a roof-bolter for
Yogi Mining. When he was laid off by Yogi Mining in 1993, Fife’s
breathing problems were so severe that he was never able to return
to work. At the time, Fife lived with his wife and disabled
dependent child in Buchanan County, Virginia.
On December 17, 1998, Fife filed a claim for black lung
benefits with the Department of Labor’s Office of Workers’
2
Compensation Programs (the “OWCP”).1 By his claim, Fife asserted
that he was due benefits under the Act because he was totally
disabled due to pneumoconiosis. Pneumoconiosis is a chronic dust
disease of the lungs that arises out of work in the coal mines.
Under the regulations implementing the Act, pneumoconiosis may be
diagnosed by X-ray, biopsy, or other medical evidence. See 20
C.F.R. § 718.202. Complicated pneumoconiosis, the more severe form
of black lung disease, is characterized by large opacities, or
spots, on the lungs, and carries with it the irrebuttable
presumption of total respiratory disability. See id. § 718.304.
Simple pneumoconiosis, a less severe form of the disease presenting
smaller spots on the lungs, carries no presumption of disability,
and it requires a miner seeking black lung benefits to make an
additional showing to establish total respiratory disability and
receive benefits. See id. § 718.204.
In his claim for benefits, Fife explained that he was “unable
to breathe freely at any time” and asserted that a shortness of
breath rendered him “unable to perform short or long term tasks.”
Fife also maintained that “dust in the mines and in and around
other jobs” made it hard for him to breathe. In response to Fife’s
application, the OWCP required Fife to be evaluated by two doctors,
1
The OWCP, a party in the proceedings before the ALJ and the
Board, has not participated in this appeal.
3
who were asked to determine whether his claim for black lung
benefits was substantiated by the medical evidence.
Fife was first examined for the OWCP on February 12, 1999 by
Dr. J. Randolph Forehand. Forehand was a certified “B reader” of
X-ray evidence, that is, he had passed a specially-designed
proficiency test administered by the Department of Health and Human
Services for evaluating X-rays for the presence of pneumoconiosis
and other lung diseases. See 20 C.F.R. § 718.202(a)(1)(ii)(E).
After conducting a chest X-ray, a pulmonary function study, an
electrocardiogram, and a physical examination of Fife, Forehand
concluded that “complicated pneumoconiosis is the sole factor
contributing to [Fife’s] total pulmonary disability.” In his
report to the OWCP, completed on February 12, 1999, Forehand
observed that Fife complained of shortness of breath, cough, chest
pain, and orthopnea (the inability to breathe unless sitting or
standing straight). Forehand also noted that Fife had been smoking
a pack of cigarettes per day since the 1970s. Forehand did not
test Fife for tuberculosis, but recommended that such a test be
conducted in order to exclude tuberculosis as an “additional
diagnosis.”2
2
A diagnosis of tuberculosis does not necessarily exclude the
possibility that a miner also suffers from pneumoconiosis. A miner
may be diagnosed with both black lung disease and tuberculosis, or
tuberculosis may be an alternative explanation for lesions on a
miner’s lungs. See Wolf Creek Collieries v. Robinson, 872 F.2d
1264, 1270 (6th Cir. 1989). Here, Dr. Forehand diagnosed Fife as
suffering from complicated pneumoconiosis (carrying an irrebuttable
4
The February 12, 1999 X-ray taken by Dr. Forehand was then
reviewed by Dr. Nicholas Sargent, who submitted his report dated
March 1, 1999 to the OWCP. Sargent was dually qualified — that
is, he was a B-reader as well as a board-certified radiologist (a
“B/BCR”). See 20 C.F.R. § 718.202(a)(1)(ii)(C). In his report to
the OWCP, Sargent opined that the Forehand X-ray showed large
opacities on Fife’s lungs indicative of simple pneumoconiosis.
Sargent was unable to conclusively determine, however, whether the
X-ray showed complicated pneumoconiosis, tuberculosis, or some
other type of infectious disease.
On the basis of these two expert opinions, the OWCP, on May
10, 1999, made an Initial Finding of Entitlement (the “OWCP
Finding”), granting Fife’s claim and concluding that he was
entitled to an award of total disability benefits due to
complicated pneumoconiosis. On August 5, 1999, Yogi Mining
requested a formal hearing to challenge the OWCP Finding, pursuant
to 20 C.F.R. § 725.421(a).3 The matter was then referred to the
ALJ.
presumption of total respiratory disability), independent of any
tuberculosis evaluation. Forehand explicitly indicated that a
diagnosis of tuberculosis would only be in addition to his primary
diagnosis of complicated pneumoconiosis.
3
The pertinent regulation provides that “[i]n any claim for
which a formal hearing is requested or ordered . . . the district
director [of OWCP] shall refer the claim to the Office of
Administrative Law Judges for a hearing.” 20 C.F.R. § 725.421(a).
5
B.
The hearing requested by Yogi Mining was conducted before the
ALJ on April 12, 2000, in Abingdon, Virginia, where testimony was
presented by Fife and the written medical opinions of eight doctors
were received into the record. These opinions included those of
Drs. Forehand and Sargent for the OWCP, two doctors’ reports
submitted by Fife (Drs. Michael S. Alexander and J.P. Sutherland),
and four doctors’ reports submitted by Yogi Mining (Drs. Abdul
Dahhan, William W. Scott, Jr., Peter G. Tuteur, and Paul S.
Wheeler). The ALJ also received into evidence the depositions of
two of Yogi Mining’s doctors, Wheeler and Dahhan. At the ALJ
hearing, Yogi Mining was represented by counsel, while Fife was
assisted by a benefits counselor serving as a lay representative.
The issue before the ALJ was whether the evidence was
sufficient to establish that Fife was totally disabled due to
complicated pneumoconiosis, as had been determined in May 1999 by
the OWCP Finding. As a general proposition, the medical evidence
presented to the ALJ established that there were significant
abnormalities in Fife’s lungs, but the experts disagreed on whether
those abnormalities were caused by pneumoconiosis or some other
disease, such as tuberculosis or emphysema. The evidence before
the ALJ is further summarized below.
6
1.
First, Fife testified that his coal mine employment had been
exclusively underground and involved very dusty conditions. He
explained to the ALJ that he could not return to work in the mines
even if a job became available because “he could not breathe enough
to keep up” and he “could not handle the dust.” Fife also
acknowledged that he had smoked a pack of cigarettes per day since
the 1970s.
In addition to the OWCP Finding of complicated pneumoconiosis,
Fife presented the ALJ with the opinions of Dr. Alexander (B/BCR),
who had evaluated Fife’s records for the ALJ proceeding, and Dr.
Sutherland, Fife’s treating physician. Alexander evaluated an
X-ray of Fife’s chest taken on December 21, 1999, the most current
X-ray considered at the hearing. In his March 4, 2000 report,
submitted to the ALJ, Alexander observed that the X-ray indicated
the presence of large opacities, and he concluded that Fife
suffered from “complicated coal worker’s pneumoconiosis” as a
result.
Fife also submitted to the ALJ the March 9, 2000 report of Dr.
Sutherland, who had been Fife’s treating physician since 1992.
Sutherland affirmed that Fife was “permanently and totally disabled
as a result of obstructive and restrictive lung disease associated
with pneumoconiosis.” Importantly, Sutherland explained that he
had evaluated Fife for tuberculosis but had found no sign of the
7
disease. He further observed that he found “no evidence of any
type of [Ghon] lesions with granulomatous disease except for
interstitial changes which would be consistent with
pneumoconiosis.”4 Finally, Sutherland related that Fife had
recurrent shortness of breath and severe wheezing, and that his
X-rays showed “interstitial scar tissue in all 5 lung fields,”
indicating “obstructive and restrictive lung disease.”
2.
In challenging the OWCP Finding that Fife suffered from
complicated pneumoconiosis, Yogi Mining presented the ALJ with the
opinions of its four doctors (Drs. Dahhan, Scott, Tuteur, and
Wheeler), each of whom ultimately opined that Fife probably did not
suffer from complicated pneumoconiosis. They presented no clear
consensus, however, on how to explain the abnormalities present in
Fife’s lungs.
On July 28, 1999, Dr. Dahhan examined Fife for Yogi Mining,
taking an X-ray and a computer tomography (“CT”) scan of Fife’s
chest, as well as performing other pulmonary tests. Dahhan, a B-
reader, initially found evidence of “large opacities” on Fife’s X-
ray and concluded that simple pneumoconiosis was indicated. This
X-ray of Fife’s chest was later read by both Dr. Wheeler (B/BCR)
4
“Ghon lesions” are pulmonary abnormalities indicative of
tuberculosis. See Dorland’s Illustrated Medical Dictionary, 716,
766 (30th ed. 2003). “Granulomatous disease” is a type of disease
characterized by lesions that may be caused by an infection, such
as tuberculosis. Id. at 795-797, 1962.
8
and Dr. Scott (B/BCR), who disagreed with Dahhan’s conclusion. In
Wheeler’s opinion, the abnormalities shown on the Dahhan X-ray
“could” be evidence of pneumoconiosis, but it more likely revealed
tuberculosis or emphysema. In Scott’s opinion, Dahhan’s X-ray of
Fife’s chest was “compatible” with tuberculosis. In their reports,
as filed with the ALJ, Scott and Wheeler opined that they did not
find conclusive evidence of pneumoconiosis on the CT scan Dahhan
had taken on July 28, 1999, nor on the X-rays of Fife’s chest taken
on August 27, 1998, and February 12, 1999. Both Scott and Wheeler
acknowledged, however, that pneumoconiosis could account for the
abnormalities on Fife’s lungs. Wheeler’s deposition, conducted ex
parte by Yogi Mining on April 4, 2000, was also submitted by Yogi
Mining to the ALJ. In his deposition, Wheeler testified that the
lung abnormalities reflected on Fife’s X-rays appeared more
“compatible” with tuberculosis, although he was “not absolutely
certain it’s tuberculosis.”
Upon consideration of the views of Drs. Scott and Wheeler, Dr.
Dahhan changed his diagnosis of Fife and provided Yogi Mining with
a new opinion, dated March 27, 2000, concluding that Fife did not
suffer from pneumoconiosis at all. Yogi Mining also submitted
Dahhan’s ex parte deposition, taken on April 6, 2000. Dahhan
testified that he changed his diagnosis of Fife’s condition after
considering the reports of Scott and Wheeler, and Dahhan asserted
that his final opinion was that Fife did not have pneumoconiosis.
9
In Dahhan’s revised assessment, the abnormalities that appeared on
Fife’s X-rays were likely due to some previous infection, such as
tuberculosis.
In addition to these three doctors, Yogi Mining submitted to
the ALJ the report of Dr. Tuteur, a pulmonary specialist, dated
October 5, 1999. Tuteur had considered the pulmonary function
tests performed on Fife by Forehand and Dahhan, as well as the
reports of Drs. Dahhan, Forehand, Sargent, Scott and Wheeler.
Tuteur opined that Fife did not suffer from any reduced lung
capacity, nor from any abnormal blood gas exchange typical of
pneumoconiosis. He also noted that Fife had no history of
tuberculosis, and he attributed Fife’s lung abnormalities to a
“cigarette-smoke induced condition.”
C.
On August 30, 2000, after considering the evidence presented
to him, the ALJ concluded that the X-ray readings and medical
opinions established by a preponderance of the evidence that Fife
suffered from complicated pneumoconiosis, and that he was entitled
to the presumption of total disability, pursuant to 20 C.F.R. §
718.304. Fife v. Yogi Mining Co., No. 99-1207, slip op. at 24
(Aug. 30, 2000) (“ALJ Decision I”). In ruling that Fife was
entitled to black lung benefits, the ALJ found that: (1) Fife had
been employed for seventeen years in the coal mines; (2) his claim
10
for benefits had been timely filed; (3) Yogi Mining was the
responsible operator; (4) Fife had two dependents for the purposes
of augmented benefits; and (5) Fife’s benefits should have
commenced as of February 1999, when he was first diagnosed with
complicated pneumoconiosis by Dr. Forehand. Id. at 3-6.
Yogi Mining then appealed ALJ Decision I to the Board,
contending that it was not supported by substantial evidence. More
specifically, Yogi Mining maintained that the ALJ had improperly
relied on the opinion of Dr. Sutherland, had impermissibly
discredited the views of the Yogi Mining doctors, and had failed to
properly weigh the CT scan evidence. Fife, who was without
counsel, did not respond to Yogi Mining’s appeal.
On October 17, 2001, the Board ruled on Yogi Mining’s appeal,
affirming ALJ Decision I in part, vacating it in part, and
remanding Fife’s claim to the ALJ to: (1) determine whether Dr.
Sutherland’s opinion was sufficiently reasoned and documented; (2)
explain more comprehensively his reasons for discounting the views
of Yogi Mining’s doctors; and (3) reweigh all the relevant
evidence, including the CT scan evidence, and determine whether
Fife had established by a preponderance of the evidence the
existence of complicated pneumoconiosis. Fife v. Yogi Mining Co.,
11
No. 00-1197, slip op. at 4-6 (B.R.B. Oct. 17, 2001) (“Board
Decision I”).5
In response to Board Decision I, the ALJ filed his second
decision on March 26, 2002 (“ALJ Decision II”), incorporating ALJ
Decision I by reference, and again awarding black lung benefits to
Fife. Fife v. Yogi Mining Co., No. 99-1207, slip op. at 4, 18
(Mar. 26, 2002). In addressing the remand issues, the ALJ
explained that he had not relied on Dr. Sutherland to diagnose
complicated pneumoconiosis. Id. at 14. Instead, the ALJ had
relied on Sutherland’s opinion to rule out a diagnosis of
tuberculosis because his opinion was sufficiently well-reasoned and
documented on that issue. Id. The ALJ further explained that the
opinions of the Yogi Mining doctors had been discounted because
they were equivocal and failed to adequately explain contrary data.
Id. at 14-18. Finally, the ALJ again concluded that, on the basis
of the evidence, Fife had established that he suffered from
complicated pneumoconiosis. Id. at 18. The ALJ’s earlier award
of black lung benefits to Fife made in ALJ Decision I was thus
sustained. Id. at 19.
Yogi Mining then appealed ALJ Decision II to the Board,
contending that the ALJ had not complied with the remand made in
Board Decision I. Specifically, Yogi Mining contended that the ALJ
5
Yogi Mining did not, in its appeal of ALJ Decision I, contest
the ALJ’s other findings. See Board Decision I at 3.
12
had failed to reevaluate the evidence, had failed to adequately
discuss the CT scan evidence, and had again rendered a decision not
supported by the evidence. Fife, proceeding pro se, did not
respond to Yogi Mining’s second appeal.
On April 24, 2003, a panel majority of the Board affirmed ALJ
Decision II, with one member dissenting. Fife v. Yogi Mining Co.,
No. 02-0520, slip op. at 8-9 (B.R.B. Apr. 24, 2003) (“Board
Decision II”). Yogi Mining then moved for reconsideration by the
Board en banc, which was granted on July 14, 2004. On
reconsideration en banc, the Board reaffirmed the ALJ’s award of
benefits to Fife by a 2-2 split vote. Fife v. Yogi Mining Co., No.
02-0520, slip op. at 4-5 (B.R.B. July 14, 2004).6 On September 8,
2004, Yogi Mining filed a timely petition for review by this Court,
and we possess jurisdiction pursuant to 33 U.S.C. § 921(c).
II.
We review an ALJ decision affirmed by the Board to determine
whether it is in accordance with the law and supported by
substantial evidence. Island Creek Coal Co. v. Compton, 211 F.3d
203, 207 (4th Cir. 2000); Piney Mountain Coal Co. v. Mays, 176 F.3d
6Under the relevant regulations, a decision by a Board panel
is not disturbed by a grant of reconsideration en banc unless three
permanent members vote to vacate or modify the original panel
decision. 20 C.F.R. § 802.407(d). Here, two members having voted
to affirm and two others having voted to vacate and remand, Board
Decision II, rendered by the panel on April 24, 2003, was left
undisturbed.
13
753, 756 (4th Cir. 1999). Substantial evidence “consists of more
than a mere scintilla” and is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Island Creek Coal, 211 F.3d at 207-208 (internal quotation marks
omitted). In conducting our review, we are not to “reweigh the
evidence or substitute our views for those of the ALJ,” Lane v.
Union Carbide Corp., 105 F.3d 166, 170 (4th Cir. 1997), but we must
consider “whether all of the relevant evidence has been analyzed
and whether the ALJ has sufficiently explained his rationale in
crediting certain evidence,” Milburn Colliery Co. v. Hicks, 138
F.3d 524, 528 (4th Cir. 1998). In our review, we confine ourselves
to the grounds upon which the Board based its decision. See Grigg
v. Dir., OWCP, 28 F.3d 416, 418 (4th Cir. 1994). As always, we
review the Board’s conclusions of law de novo. Milburn Colliery,
138 F.3d at 528.
III.
In order to be entitled to black lung benefits, Fife was
obliged to establish four elements: (1) he has pneumoconiosis; (2)
his pneumoconiosis arose out of his coal mine employment; (3) he
has a totally disabling respiratory or pulmonary condition; and (4)
pneumoconiosis is a contributing cause to his total respiratory
disability. See 20 C.F.R. §§ 718.201-204; see also Milburn
Colliery Co. v. Hicks, 138 F.3d 524, 529 (4th Cir. 1998). As we
explained earlier, an irrebuttable presumption of total disability
14
arises from a diagnosis of complicated pneumoconiosis. See 20
C.F.R. § 718.304. Under the Act, a miner is deemed to suffer from
complicated pneumoconiosis if he has satisfied one of the following
criteria: (A) an x-ray of his lungs shows at least one opacity
greater than one centimeter in diameter; (B) a biopsy reveals
“massive lesions” in his lungs; or (C) a diagnosis by other means
reveals a result equivalent to either (A) or (B). See 30 U.S.C.
§ 921(c)(3); E. Assoc. Coal Corp. v. Dir., OWCP, 220 F.3d 250, 256
(4th Cir. 2000). If a coal miner who is suffering from
pneumoconiosis was employed for ten years or more in the coal
mines, there is a rebuttable presumption that his pneumoconiosis
arose out of such employment. See 20 C.F.R. § 718.203(b). As we
have repeatedly observed, it is within the ALJ’s discretion to
determine whether a black lung claimant suffers from complicated
pneumoconiosis, so long as his decision is rational and based on
substantial evidence. See Underwood v. Elkay Mining, 105 F.3d 946,
949 (4th Cir. 1997); E. Assoc. Coal, 220 F.3d at 256. Subject to
the substantial evidence rule, it is the province of the ALJ to
make credibility determinations and to resolve inconsistencies or
conflicts in the evidence. See Underwood, 105 F.3d at 949.
In this appeal, Yogi Mining contends that ALJ Decisions I and
II were erroneous for three reasons: First, the ALJ improperly
relied on the opinion of Dr. Sutherland, Fife’s treating physician;
second, the ALJ failed to provide valid reasons for discrediting
15
the opinions of the Yogi Mining doctors; and, third, the ALJ failed
to consider the relevant CT scan evidence. In response, Fife, now
represented by counsel, maintains that the ALJ’s findings are
supported by substantial evidence and that Board Decision II was
correct in affirming the ALJ’s award of black lung benefits to
Fife. We assess Yogi Mining’s contentions in turn.
A.
By its first contention, Yogi Mining asserts that the ALJ
should not have relied upon Dr. Sutherland’s opinion because it did
not meet the requirement that it be “reasoned,” and it did not
establish the existence of complicated pneumoconiosis. As
explained below, however, the ALJ did not rely solely on
Sutherland’s report to establish complicated pneumoconiosis, and he
sufficiently articulated his reasons for concluding that
Sutherland’s opinion constituted a well-reasoned and documented
opinion.
First, contrary to Yogi Mining’s characterization, the ALJ did
not rely exclusively on Dr. Sutherland’s opinion to establish
complicated pneumoconiosis. Indeed, the ALJ explicitly
acknowledged that Sutherland’s opinion was “insufficient to
constitute a diagnosis of complicated pneumoconiosis.” ALJ
Decision II at 14. Rather, the ALJ explained that he relied on
Sutherland’s “statements regarding Mr. Fife’s tuberculosis
16
evaluation” to rule out tuberculosis as an explanation for the
abnormalities on Fife’s lungs reflected in his chest X-rays. Id.7
Second, Yogi Mining contends that Sutherland’s opinion could
not be relied upon because it was not sufficiently reasoned and
documented. In fact, however, ALJ Decision II carefully
articulated that the ALJ viewed Sutherland’s medical judgments to
be well-reasoned and documented because they “follow[ed] logically
from his observations” and were amply supported by data adequate to
support his conclusions. ALJ Decision II at 14. The ALJ observed
that Sutherland’s opinion was based on (1) Fife’s medical history;
(2) Fife’s occupational history; (3) Sutherland’s own readings of
Fife’s X-rays, as well as the readings of those X-rays by Dr.
Scott; and (4) Sutherland’s observations, made on the basis of his
own testing and examination of Fife. ALJ Decision II at 14. The
ALJ concluded that, because “Dr. Sutherland has been the claimant’s
treating physician for approximately seven years, and because Dr.
Sutherland is the only physician of record who has evaluated the
claimant for tuberculosis, I accord great weight to [his] well
documented and well reasoned opinion.” Id.7
Although not specifically mentioned by the ALJ, the
administrative record contains Dr. Sutherland’s note indicating
that, on April 5, 1999, he gave Fife a skin test, known as a
“tine,” for tuberculosis. Sutherland also indicated that a
“negative” result on this test was received on April 8, 1999.
Sutherland’s note was faxed to the ALJ on October 21, 1999.
17
In its review of ALJ Decision II, the Board concluded that the
ALJ’s reliance on Dr. Sutherland’s observations over a seven-year
period was rational and within his discretion. Board Decision II
at 6. In these circumstances, we find no error in that conclusion.
B.
Yogi Mining next maintains that the ALJ failed to articulate
sufficient reasons for discrediting the medical opinions of the
Yogi Mining doctors. The Board concluded, however, that the ALJ
had provided valid, rational reasons for according less weight to
the judgments offered by those doctors, and our review of the
record reveals no error in that assessment. See Board Decision II
at 8.
The ALJ, in ALJ Decision II, explained that he was according
less weight to Drs. Scott and Wheeler because their opinions were
equivocal on the abnormalities shown on Fife’s X-rays, in that they
could only opine that such spots were “compatible with” or
“probably” tuberculosis. ALJ Decision II at 14. Moreover, Scott
and Wheeler both acknowledged that Fife’s X-rays could indicate
pneumoconiosis. Id. at 15. As the ALJ explained, “not only were
the physicians unable to offer a clear explanation for the
abnormalities revealed by Mr. Fife’s chest x-rays, Drs. Wheeler and
Scott also were unable to unequivocally conclude that Mr. Fife does
not suffer from pneumoconiosis.” Id. at 15. Although Scott and
18
Wheeler were both dually qualified (B/BCR), the ALJ considered
their opinions to be inconclusive, and he chose to rely instead on
the unequivocal diagnoses of complicated pneumoconiosis by two
other experts: Dr. Alexander, who was also dually qualified
(B/BCR), and Dr. Forehand, a B reader. Id. at 15.8
Next, the ALJ explained that he had discounted Dr. Dahhan’s
opinion because it was not well-reasoned. ALJ Decision II at 15-
17. Initially, Dahhan read Fife’s July 28, 1999 X-ray to be
positive for pneumoconiosis, but he altered his view after being
provided with the readings by Drs. Scott and Wheeler of Fife’s July
28, 1999 CT scan. Id. at 16. In changing his opinion, however,
Dahhan failed to reconcile his view on the absence of
pneumoconiosis with the contrary findings of Drs. Alexander,
Sargent, and Forehand, who had each found evidence of
pneumoconiosis. Id. at 16-17. Dahhan also failed to reconcile his
opinion that Fife “retained the respiratory capacity” to work with
the contrary findings of Drs. Forehand and Sutherland, who opined
that Fife’s extensive lung injury rendered him totally disabled.
Id. at 16.9 Moreover, as the ALJ pointed out, although Dahhan
8
That the ALJ evenhandedly applied his analysis is further
revealed by the fact that the ALJ discounted the opinion of Dr.
Sargent — who examined Fife for the OWCP and found simple
pneumoconiosis — because his diagnosis was deemed inconclusive.
ALJ Decision II at 15.
9
The ALJ explained that he discounted Dahhan’s second opinion
because it was a consultative opinion, which is supposed to be “a
distillation of an array of medical evidence, some produced by the
19
opined that any abnormalities suffered by Fife were probably caused
by tuberculosis, he apparently failed to properly consider that
Fife’s sole evaluation for tuberculosis — performed by Dr.
Sutherland — found no evidence of the disease. Id. at 16-17.10
The ALJ observed that Dahhan’s “failure to address the tension in
his second opinion between the weight of the contrary evidence and
his ultimate conclusion is so substantial that his opinion is not
adequately reasoned.” Id. at 16. In these circumstances, the ALJ
was entitled to discount Dahhan’s opinion.
Finally, the ALJ discounted the opinion of Dr. Tuteur for Yogi
Mining because the ALJ found that it was vague and not fully
reasoned. ALJ Decision II at 17-18. In so doing, the ALJ observed
that Tuteur had failed to explain or support his conclusion that
the medical evidence “suggest[s] the absence of pneumoconiosis” and
the presence of an infection. Id. at 18. Moreover, Tuteur did not
independently evaluate Fife’s X-rays or CT scan but was relying on
opinions of other doctors, into a comprehensive opinion that weighs
the totality of the evidence. The failure of Dr. Dahhan’s report
to do just that leads me to accord his opinion little weight.” ALJ
Decision II at 16.
10
While Dr. Sutherland’s report was listed by Dr. Dahhan as one
that he had considered, the ALJ explained, in that regard, that
“the mere listing of a report does not demonstrate adequate
consideration alone and, more importantly, a doctor’s failure to
explicitly discuss the lone piece of evidence available to him that
explicitly contradicts his opinion is demonstrative of an opinion
that is poorly reasoned.” ALJ Decision II at 17.
20
the reports of Scott and Wheeler, which the ALJ deemed inconclusive
and, therefore, less probative. Id. at 17-18.
In contrast to his rejection of the equivocal opinions of Yogi
Mining’s doctors, the ALJ explained that he accorded “great weight”
to the views of Dr. Forehand, who had examined Fife for the OWCP
and unequivocally opined that “complicated pneumoconiosis is the
sole factor contributing to his total pulmonary disability.” ALJ
Decision II at 7, 18. Forehand’s opinion was “supported by
specific physical examination findings, the miner’s employment and
smoking histories, and a chest X-ray” taken by Forehand on February
12, 1999. Id. at 18. While Forehand suggested that Fife be tested
for tuberculosis, he made clear his view that any such resulting
diagnosis would have been in addition to his diagnosis of
pneumoconiosis. See 20 C.F.R. § 718.201(b) (including within legal
definition of pneumoconiosis “any chronic pulmonary disease . .
. substantially aggravated by” coal dust). The ALJ also accorded
weight to Dr. Alexander’s interpretation of Fife’s most recent X-
ray as positive for complicated pneumoconiosis. ALJ Decision II at
18.
The Board, in reviewing ALJ Decision II, concluded that the
ALJ was within his discretion in ruling as he did and, in
particular, in deeming the opinions of Drs. Forehand and Alexander
as the more probative evidence presented. Board Decision II at 8.
Because it is the province of the ALJ to determine the weight to be
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accorded such evidence, we also conclude that, in these
circumstances, the ALJ and the Board did not err.
C.
Finally, Yogi Mining contends that the ALJ failed to consider
the relevant CT scan evidence relating to Fife’s claim. The Board
concluded, however, that the ALJ had properly considered all the
relevant evidence, and that he had satisfied his duty of
explanation. The Board’s conclusion on this point is confirmed by
our review. Board Decision II at 3. Contrary to Yogi Mining’s
contentions, an ALJ is not required to give determinative weight to
CT scan readings; he is only obliged to weigh such readings against
the other relevant evidence. See Consol. Coal Co. v. Dir., OWCP,
294 F.3d 885, 893 (7th Cir. 2002) (recognizing the “absence of any
regulatory requirement that a negative CT scan must trump all other
evidence”). Furthermore, ALJ Decision I, which is explicitly
incorporated by reference in ALJ Decision II, satisfactorily
explained that the ALJ was according “little evidentiary weight” to
the CT scan readings of Drs. Wheeler and Scott because both had
interpreted the scans as showing evidence of tuberculosis, while
Fife had, in fact, tested negative for the disease. ALJ Decision
I at 22. The ALJ also explained that he gave little weight to Dr.
Dahhan’s evaluation of Fife’s CT scan of July 28, 1999, because
22
Dahhan had not adequately explained why he had rejected the
contrary evidence of the other doctors. ALJ Decision II at 16.
An ALJ’s duty of explanation is fully satisfied “[i]f a
reviewing court can discern what the ALJ did and why he did it.”
Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir.
1999) (internal quotation marks omitted). The Board concluded that
this test was satisfied, i.e., that the ALJ had properly considered
the CT scan evidence and fulfilled his duty of explanation. Board
Decision II at 4. In these circumstances, we find no error in that
assessment.
IV.
Pursuant to the foregoing, we affirm the decision of the Board
affirming the ALJ’s award of black lung benefits to Fife.
AFFIRMED
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