Smith v. Jewell Smokeless Coal Corp. ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN D. SMITH, JR., 
Petitioner,
v.
JEWELL SMOKELESS COAL
CORPORATION; DIRECTOR, OFFICE OF  No. 00-1721
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(No. 99-298-BLA)
Argued: April 4, 2001
Decided: May 15, 2001
Before WILKINS and KING, Circuit Judges, and
Frederic N. SMALKIN, United States District Judge for the
District of Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Thomas C. Antenucci, COPELAND, MOLINARY &
BIEGER, Abingdon, Virginia, for Petitioner. Ronald Eugene Gilbert-
son, BELL, BOYD & LLOYD, P.L.L.C., Washington, D.C., for
Respondents.
2 SMITH v. JEWELL SMOKELESS COAL CORP.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John D. Smith, Jr., a former coal miner with eight years service in
the mines, seeks review of the Benefits Review Board’s (BRB) deci-
sion and order affirming the administrative law judge’s (ALJ) denial
of black lung benefits pursuant to 30 U.S.C.A. §§ 901-945 (West
1986 & Supp. 2000). Because we conclude that the BRB’s decision
is supported by substantial evidence, we affirm.
As explained in more detail below, this proceeding has an exten-
sive administrative history. The ALJ initially assigned to the case
concluded that Smith was entitled to benefits. On appeal by the
employer, Jewell Smokeless, the BRB vacated the ALJ’s conclusion
that Smith was totally disabled and remanded the case to permit the
ALJ to reweigh the medical evidence. On remand, the matter was
assigned to a second ALJ. The second ALJ concluded that Smith was
not disabled. On Smith’s appeal, the BRB again remanded. On this
remand, the second ALJ again concluded that Smith was not disabled.
Smith again appealed to the BRB. The BRB reversed the denial of
benefits. Jewell Smokeless then requested reconsideration. Upon
reconsideration, the BRB vacated its decision and remanded yet again
for further review of the medical evidence. On this remand, the case
was assigned to a third ALJ. This ALJ concluded that Smith was not
disabled. Once more, Smith appealed and, on this occasion, the BRB
affirmed the ALJ’s denial of benefits. This petition for review fol-
lowed.
An understanding of the issues raised by Smith’s petition for
review requires a more complete explanation of the substance of the
medical evidence and the legal issues raised at the various administra-
tive proceedings.
Smith filed his claim for benefits in July 1985, and after the
Department of Labor denied the claim, it was assigned to an ALJ. The
SMITH v. JEWELL SMOKELESS COAL CORP. 3
ALJ conducted a hearing on September 29, 1988. At the hearing, the
ALJ received exhibits that included the results of several medical
evaluations of Mr. Smith conducted between 1974 and the date of the
hearing. Mr. Smith also testified at the hearing.
The ALJ found that the chest x-ray evidence demonstrated that
Smith suffers from pneumoconiosis, and that Smith’s pneumoconiosis
arose out of his coal mine employment. In considering whether the
evidence supported a finding that Smith was totally disabled, the ALJ
reviewed six pulmonary function tests and nine blood gas studies. He
determined that this evidence was not sufficient to demonstrate total
disability, nor was there any evidence that Smith suffered from cor
pulmonale with right sided congestive heart failure. The ALJ then
considered the medical opinion evidence regarding total disability,
consisting of reports from several doctors who treated Smith.
Doctor McVey treated Smith for various medical conditions,
including pulmonary and respiratory problems. Dr. Hansen diagnosed
Smith as suffering from pneumoconiosis, with other pulmonary prob-
lems including emphysema and chronic bronchitis. Dr. Waugh con-
ducted a cardiac catherization on Smith and determined that his
recurrent chest pain was not of cardiac origin. None of these doctors,
however, expressed any opinion regarding disability. Accordingly, the
ALJ did not consider their views in determining whether Smith was
totally disabled.
Dr. Karpynec conducted a neurological examination of Smith to
evaluate chest pain, low back pain, and pain of the lower extremities.
He opined that Smith was unable to perform his duties as a coal miner
due to multi-level degenerative disease of the spine and "underlying
pulmonary disease which is also a contributing factor," but did not
specify the nature or impact of this pulmonary disease. The ALJ did
not consider this opinion.
Dr. Byers, who is board certified in internal medicine and pulmo-
nary medicine, examined Smith in 1986 on behalf of the employer.
He was also deposed prior to the hearing. Dr. Byers noted a smoking
history of one and one-half packs per day for forty-five years, and
one-half pack per day at the time of the examination. In his report, Dr.
Byers also noted a history of exposure to asbestos starting in 1954,
4 SMITH v. JEWELL SMOKELESS COAL CORP.
which is consistent with Smith’s employment history. At the hearing
conducted by the first ALJ, however, Smith denied that he had ever
been exposed to asbestos, or that he had related a history of exposure
to Dr. Byers. Dr. Byers’ examination noted that breath sounds were
clear at rest, and that a forced expiratory maneuver revealed a moder-
ate large airway wheeze without significant prolongation. Pulmonary
function testing conducted in conjunction with the examination sug-
gested a mild restrictive ventilatory defect, with improvement after
administration of bronchodilators, indicating a reversible obstructive
airway disease. Arterial blood gas testing indicated mild hypoxemia,
with a carboxy hemoglobin level in the toxic range.
Dr. Byers stated that the carboxy hemoglobin level indicated sig-
nificant recent inhalation of toxic fumes, which he attributed to
Smith’s "heavy chronic tobacco abuse." This level indicated that
Smith’s cardiac and respiratory workload was increased by twenty to
twenty-five percent as a result of impaired ability of the blood to
transport oxygen. Dr. Byers interpreted a chest x-ray taken in his
office as consistent with pulmonary fibrosis that could result from
asbestosis. The x-ray was not consistent with pneumoconiosis. Dr.
Byers concluded that Smith suffered a mild respiratory impairment
resulting from a mild restrictive ventilatory pattern and a possible
mild obstructive process, neither of which would be considered dis-
abling, or prevent Smith from performing his last employment. Dr.
Byers also noted a significant asbestos exposure and x-ray pattern
consistent with asbestosis. Finally, Dr. Byers found no evidence of
coal worker’s pneumoconiosis.
Dr. Garzon, who is board certified in internal medicine, examined
several medical reports and test results, excluding the four most
recent x-rays, in February 1988. Dr. Garzon concluded that there was
no medical evidence of a totally disabling chronic respiratory impair-
ment arising out of coal mine employment. From a pulmonary and
respiratory standpoint, Smith was capable of returning to his former
employment in coal mining. Finally, he stated that there was no con-
vincing evidence of coal worker’s pneumoconiosis, but the x-rays
suggested asbestosis.
Dr. Robinette, who is board certified in internal medicine and pul-
monary medicine, examined Smith in September 1988. Dr. Robinette
SMITH v. JEWELL SMOKELESS COAL CORP. 5
noted at least a fifty pack year history of smoking cigarettes. On
examination he noted diminished breath sounds with diffuse wheezes
and prolongation of the expiratory phase. He evaluated a chest x-ray
as showing mild diffuse interstitial fibrosis and scattered opacities
consistent with pneumoconiosis. He noted that there was no evidence
of pleural calcification or changes indicating pulmonary asbestosis.
Pulmonary function studies showed a decreased FVC, normal total
lung capacity, and markedly increased diffusion capacity; blood gas
studies showed a normal carbon dioxide level and decreased oxygen
level. These results were compatible with moderately severe obstruc-
tive pulmonary disease, without significant response to bronchodilator
therapy. He diagnosed coal worker’s pneumoconiosis, moderately
severe obstructive pulmonary disease, chronic bronchitis, probable
arteriosclerotic cardiovascular disease with angina, history of abdomi-
nal aortic aneurysm, and mild degenerative arthritis. He opined that
Smith has an occupational acquired pneumoconiosis with "a moder-
ately severe obstructive ventilatory defect which would prohibit him
from returning to work as an underground coal miner." Dr. Robinette
also advised Smith to stop smoking because of the significant impact
on his airway function. He concluded by stating that he believed
Smith’s "pulmonary disease is chronic and is probably irreversible."
In considering the medical opinions of Doctors Byers, Garzon, and
Robinette, the ALJ accorded great weight to the opinion of Dr. Robi-
nette because he had examined Smith most recently, was highly quali-
fied, and his conclusions were supported by the reports of Doctors
Hansen and Karpynec. He accorded less weight to the opinion of Dr.
Byers because of what he deemed confusing references to asbestosis
in Dr. Byers’ report, and the fact that other x-ray interpretations con-
tradicted this evaluation by Dr. Byers. The ALJ did not discuss Dr.
Garzon’s opinion, erroneously noting that "[o]nly Dr. Byers found no
evidence of pulmonary disability." As a result, the ALJ concluded
that Smith was totally disabled due to pneumoconiosis under the
criteria of 20 C.F.R. § 718.204(c)(4) (2000), and awarded benefits.
On Jewell Smokeless’ appeal, the BRB affirmed the ALJ’s findings
regarding the length of coal mine employment, the existence of pneu-
moconiosis, that the pneumoconiosis is related to Smith’s coal mine
employment, and that Smith failed to demonstrate total disability pur-
suant to the criteria set forth at § 718.204(c)(1)-(3). Because the ALJ
6 SMITH v. JEWELL SMOKELESS COAL CORP.
had not explained his failure to discuss the opinion of Dr. Garzon, the
BRB vacated the ALJ’s finding of total disability and remanded to the
ALJ to reweigh all the medical opinions pursuant to § 718.204(c).
The BRB instructed that if the ALJ again found Smith to be totally
disabled, he should more thoroughly articulate the basis for finding
that the disability was due to pneumoconiosis.
On remand, the case was assigned to a different ALJ, because the
first ALJ was no longer available. This ALJ examined the medical
evidence of record, credited the opinion of Dr. Garzon over that of
Dr. Robinette, and found that the evidence did not show the existence
of a totally disabling respiratory or pulmonary impairment. The ALJ
did not reach the issue of causality and denied benefits.
On Smith’s appeal, the BRB determined that the ALJ erred in
weighing the conflicting medical opinions as to total disability, and
it remanded once again. The ALJ was instructed to consider the reli-
ability of the opinions of Doctors Garzon and Byers in light of the
fact that they did not diagnose pneumoconiosis. On remand, the ALJ
cited this Court’s decision in Grigg v. Director, Office of Workers’
Compensation Programs, 28 F.3d 416 (4th Cir. 1994), and accorded
only minimal weight to the opinions of Doctors Byers and Garzon. He
also gave only minimal weight to the opinion of Dr. Robinette, how-
ever, citing Walker v. Director, Office of Workers’ Compensation
Programs, 927 F.2d 181 (4th Cir. 1991), because Dr. Robinette did
not discuss the exertional requirements of Smith’s coal mine employ-
ment. Having found the relevant opinion evidence of little weight, the
ALJ concluded that Smith had not established total disability due to
pneumoconiosis, and again denied benefits.
Smith again appealed, and the BRB affirmed the ALJ’s application
of Grigg and assignment of minimal weight to the opinions of Doc-
tors Byers and Garzon, but held that the ALJ misapplied Walker in
evaluating the opinion of Dr. Robinette. The BRB held that Dr. Robi-
nette’s opinion was the only probative evidence in the record regard-
ing total disability and causation, and was more than substantial
evidence to establish each. The BRB reversed the denial of benefits
and remanded for the award of benefits.
The employer then requested reconsideration, which the BRB
granted. The BRB vacated its earlier decision affirming the ALJ’s
SMITH v. JEWELL SMOKELESS COAL CORP. 7
application of Grigg, and remanded to the ALJ for consideration of
the medical evidence in light of Dehue Coal Co. v. Ballard, 65 F.3d
1189 (4th Cir. 1995), and Hobbs v. Clinchfield Coal Co., 45 F.3d 819(4th Cir. 1995). On remand, yet another ALJ was assigned to the case.
The ALJ reviewed the medical opinion evidence and concluded that
the evidence was not sufficient to establish that Smith suffered from
a totally disabling respiratory or pulmonary impairment, but that the
evidence supported a finding that Smith’s heavy tobacco use is an
independent cause of any disabling respiratory impairment, in any
event. The ALJ accorded greater weight to the opinion of Dr. Byers,
finding that Dr. Byers thoroughly explained the basis for his conclu-
sions, while Dr. Robinette failed to explain his diagnosis in light of
the objective test results and did not address the impact of Smith’s
lengthy smoking history. The ALJ also noted that Dr. Garzon’s opin-
ion supports that of Dr. Byers. The BRB found that the ALJ’s credit-
ing of Dr. Byers’ opinion was supported by substantial evidence, and
affirmed the ALJ’s finding of no total disability and denial of bene-
fits. Smith filed a timely petition for review.
Before this court, Smith contends that the ALJ and BRB erred in
applying this court’s precedent in that the opinion of a physician who
fails to diagnose pneumoconiosis should be given little, if any, weight
where the ALJ finds the disease present, and that the ALJ and BRB
failed to weigh all relevant evidence and misstated the evidence. Jew-
ell Smokeless filed a response brief urging affirmance of the BRB’s
decision and order. The Director, Office of Workers’ Compensation
Programs, declined to participate in this appeal.
This court reviews decisions of the BRB to determine whether the
BRB properly found that the ALJ’s decision was supported by sub-
stantial evidence and in accordance with law. See Doss v. Director,
Office of Workers’ Compensation Programs, 53 F.3d 654, 658 (4th
Cir. 1995). Subject to the substantial evidence requirement, the ALJ
has the sole authority to make credibility determinations and resolve
inconsistencies or conflicts in the evidence. See Grizzle v. Pickands
Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993). An ALJ, how-
ever, may rely only on a medical opinion that constitutes a reasoned
medical judgment. See Freeman United Coal Mining Co. v. Cooper,
965 F.2d 443, 448 (7th Cir. 1992).
8 SMITH v. JEWELL SMOKELESS COAL CORP.
To establish that he is entitled to black lung benefits in a case under
Part 718, a miner must prove: "(1) he has pneumoconiosis; (2) the
pneumoconiosis arose out of 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. v. Hicks, 138 F.3d 524, 529 (4th Cir. 1998). The
first two requirements are not contested in this appeal.
Smith first contends that the ALJ erred by not applying this court’s
holdings in Grigg and Toler v. Eastern Associated Coal Co., 43 F.3d
109 (4th Cir. 1995), in determining what weight to give the opinions
of Doctors Byers and Garzon, because they did not diagnose pneumo-
coniosis. Our review of the record convinces us that these cases are
distinguishable, and that this court’s decisions in Ballard and Hobbs
support the ALJ’s analysis. First, Grigg arose under the regulations
at section 727, and involved medical opinion evidence for rebuttal of
an interim presumption of total disability. In this case, no presump-
tions are applicable, and Smith bears the burden of establishing every
element of entitlement to benefits. Second, in Hobbs and Ballard, this
court limited the holding of Grigg, stating that "a physician’s opinion
premised on an understanding that the miner does not suffer from coal
workers’ pneumoconiosis may hold probative value." Dehue, 65 F.3d
at 1193; Hicks, 138 F.3d at 535. Third, the concerns underlying the
decisions in Toler and Grigg are inapplicable to this case. Toler held
that an opinion finding no disability "due to" pneumoconiosis carries
little weight where the doctor mistakenly assumed, contrary to the
finding of the ALJ, that no pneumoconiosis existed. See Toler, 43
F.3d at 116. In this case, disability causation is not at issue, because
the Board affirmed only the ALJ’s finding of no total disability.
Grigg held a medical opinion finding no respiratory or pulmonary
impairment insufficient to rebut the Part 727 presumption of entitle-
ment where the opinion was based on the false assumption that the
miner did not suffer from pneumoconiosis. Grigg, 28 F.3d at 419.
Grigg reflects the concern that a doctor who finds no pneumoconiosis
will erroneously assume the absence of respiratory disability because
of erroneously assuming the absence of respiratory disease. In this
case, however, Doctors Byers and Garzon both found respiratory dis-
ease, but attributed it to asbestos exposure. While their opinions
regarding the source of the disease conflicted with the ALJ’s finding,
SMITH v. JEWELL SMOKELESS COAL CORP. 9
this difference does not bear on the entirely separate issue of whether
the miner’s respiratory problems were disabling in degree.
Smith’s contention that the opinions of Doctors Byers and Garzon
regarding the existence of disability are based on their conclusion that
the evidence was inconsistent with coal workers’ pneumoconiosis is
baseless. In particular, Dr. Byers’ report reflects a complete medical
history and physical examination that included pulmonary function
tests and blood gas tests. Review of Dr. Byers’ report reveals that his
conclusions regarding the extent of Smith’s impairment and its impact
on his ability to continue employment are the result of Dr. Byers’
consideration of all the information he obtained in his examination,
and not simply his finding of no coal workers’ pneumoconiosis.
While Dr. Garzon’s conclusions are stated in a much more abbrevi-
ated manner than those of Dr. Byers, it is also clear that he based his
conclusion that Smith was not totally disabled on the entirety of the
medical evidence he reviewed, rather than only on his interpretation
of the x-rays as "suggestive of asbestosis." This assertion of error is
without merit.
Smith next contends that the ALJ and BRB failed to weigh all rele-
vant evidence and made substantial errors in stating the evidence.
Smith cites the fact that only the first ALJ listed the x-ray evidence
in his report to support the assertion that subsequent ALJs and the
BRB did not consider this evidence. Ultimately, Smith makes this
assertion to restate his contention that the opinions of Doctors Garzon
and Byers should have been discredited because of their conclusion
that the x-rays were suggestive of asbestosis. Moreover, the x-ray evi-
dence is diagnostic of the existence of pneumoconiosis—an issue
decided in Smith’s favor—and does not bear on the existence of dis-
ability.
Smith also contends that the ALJ misstated the evidence regarding
the pulmonary function test conducted by Dr. Robinette, which Smith
states produced a qualifying result before bronchodilators. The record
reveals, however, that only the FEV1 parameter of this test was quali-
fying, and therefore the overall test did not demonstrate disability pur-
suant to § 718.204(c)(1), as all three parameters must be less than the
values in appendix B of the regulations. Smith also argues that the
ALJ did not properly consider that the report of Dr. Byers is contra-
10 SMITH v. JEWELL SMOKELESS COAL CORP.
dicted by the diagnoses of pneumoconiosis by Dr. Hansen and the
finding of disability by Dr. Karpynec. The ALJ’s opinion demon-
strates that he properly considered these reports, which do not ade-
quately address the issue of Smith’s disability. Finally, Smith cites an
apparent typographical error in the ALJ’s report concerning the date
that Dr. McVey instructed Smith to return to work. This contention
is without merit, as a reading of the ALJ’s report as a whole clearly
reveals this error is merely typographical and not substantive. More-
over, contrary to Smith’s assertion, it in no way indicates a lack of
care or precision in the ALJ’s analysis.
We conclude that the record contains substantial evidence to sup-
port the ALJ’s conclusion that the medical opinion evidence did not
establish that Smith suffers from a totally disabling respiratory
impairment. The ALJ’s weighing of the conflicting medical opinions
was reasonable. He thoroughly discussed the opinions of Doctors
Robinette and Byers, the depth of their reasoning and explanations,
and his reasons for giving greater weight to Dr. Byers’ opinion.
While Dr. Robinette discussed the results of pulmonary function
tests and blood gas studies, he failed to explain his finding that Smith
is disabled in the face of the nonqualifying results of these tests. Fur-
ther, although he advised Smith to quit smoking, Dr. Robinette does
not explain how, if at all, Smith’s over fifty pack-year smoking his-
tory may have contributed to the impairment Dr. Robinette describes,
particularly in light of Smith’s relatively short eight years in the
mines. This failure undermines the overall probative value of Dr.
Robinette’s report. See Ballard, 65 F.3d at 1196; Shelton v. Director,
Office of Workers’ Compensation Programs, 899 F.2d 690, 693 (7th
Cir. 1990). The ALJ correctly noted this discrepancy, and he dis-
counted Dr. Robinette’s report appropriately.
Our review of the record and consideration of oral argument lead
us to conclude that the Board’s decision is based upon substantial evi-
dence and is without reversible error. Accordingly, the decision of the
Board is affirmed.
AFFIRMED