Clinchfield Coal Co. v. Fultz , 61 F. App'x 866 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CLINCHFIELD COAL COMPANY, 
Petitioner,
v.
DOROTHY FULTZ, Widow of Clarence
Fultz, deceased; DIRECTOR, OFFICE OF  No. 02-1107
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(01-195-BLA)
Argued: January 23, 2003
Decided: April 2, 2003
Before WILLIAMS and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion. Judge
Motz wrote a dissenting opinion.
COUNSEL
ARGUED: Timothy Ward Gresham, PENNSTUART, Abingdon,
Virginia, for Petitioner. Terry Gene Kilgore, WOLFE, WILLIAMS &
RUTHERFORD, Norton, Virginia, for Respondents. ON BRIEF:
2 CLINCHFIELD COAL v. FULTZ
Joseph E. Wolfe, Bobby S. Belcher, Jr., WOLFE, WILLIAMS &
RUTHERFORD, Norton, Virginia, for Respondent Fultz.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The Department of Labor’s Benefits Review Board affirmed an
award of survivor’s benefits to Dorothy Fultz under the Black Lung
Benefits Act, 30 U.S.C.A. §§ 901-945 (1986 & Supp. 2002) (the Act),
based on the administrative law judge’s finding that Mrs. Fultz suc-
cessfully invoked the irrebuttable presumption under 30 U.S.C.A.
§ 921(c)(3) and 20 C.F.R. § 718.304 (2002) that the death of her hus-
band, a coal miner, was due to pneumoconiosis. Recognizing that
there was autopsy evidence that showed lesions of 2 centimeters and
autopsy evidence that showed evidence of 1.2 centimeter lesions, the
ALJ made an equivalency determination, finding that "regardless of
whether [the lesions] exceeded 2 centimeters . . . or were 1.2 centime-
ters . . ., [they] would be expected on x-ray to yield one or more large
opacities (i.e., greater than 1 centimeter in diamater)" and that "it is
undisputed that [Fultz] had at least 1.2 centimeter lesions of coal
workers pneumoconiosis on autopsy and I find that these autopsy
findings satisfy the statutory and regulatory definition." (J.A. at 215.)
Because the record in this case lacks any evidence establishing that
the size of a lesion on autopsy is equivalent to the size of a lesion on
x-ray that would support this equivalency determination, we remand
this case for such testimony and any other further proceedings consis-
tent with this opinion.
I.
Clarence Fultz worked for at least thirty years as a coal miner, end-
ing in 1982. He died in 1999, and according to his death certificate,
CLINCHFIELD COAL v. FULTZ 3
the cause of his death was respiratory failure due to extensive squa-
mous cell carcinoma with coal worker’s pneumoconiosis listed as an
underlying condition. Following his death, Dorothy Fultz, his widow,
filed an application for survivor’s benefits under the Act. The Depart-
ment of Labor determined that Mrs. Fultz was eligible for benefits,
and the claim was referred to the Office of Administrative Law
Judges. Clinchfield Coal agreed that it was the "responsible operator"
and therefore would be liable for the payment of benefits if any were
to be awarded to Mrs. Fultz. See 20 C.F.R. §§ 725.490, 725.492
(2002). Clinchfield Coal has also agreed that Mr. Fultz had pneumo-
coniosis and that he had 30 years of coal mine employment. On the
issue of whether the miner died due to pneumoconiosis, the adminis-
trative law judge (ALJ) found that Mrs. Fultz successfully invoked
the irrebuttable presumption of 20 C.F.R. § 718.304 that the miner’s
death was due to pneumoconiosis. Although the ALJ considered x-ray
evidence, CT scans, autopsy evidence and medical reports, in award-
ing benefits, the ALJ concluded that only the autopsy evidence sup-
ported the invocation of the presumption.
Reviewing the autopsy evidence, the ALJ considered an autopsy
report prepared by Dr. Brooks. Upon gross examination, Dr. Brooks
found "multiple tracheobronchial lymph nodes showing anthracotic
changes and fibrosis" in the trachea, "severe" anthracosis in the lungs,
shown by "multiple areas of black macular discoloration," and "multi-
ple areas of fibrosis and firm nodules in both lungs." (J.A. at 32.) In
the autopsy report, Dr. Brooks listed, but did not discuss, twenty-two
slide cassettes of tissue taken during the autopsy. Dr. Brooks con-
cluded that "[t]he immediate cause of this patient’s death is respira-
tory failure due to complicated coal worker’s pneumoconiosis,
COPD, metastatic squamous cell carcinoma of the lungs, and multifo-
cal post obstructive acute pneumonia." (J.A. at 33.) In her deposition
in the administrative proceeding, Dr. Brooks testified that "virtually
every slide has no viable lung tissue left. It’s mostly fibrotic." (J.A.
at 110.) Asked whether she had found "lesions . . . resulting from
coal-dust exposure on his lung in excess of two centimeters," Dr.
Brooks replied that she had, and that the lesions meeting that descrip-
tion were "[t]oo numerous to count." (J.A. at 119.)
The ALJ also considered the opinions of Dr. Kleinerman and Dr.
Caffrey, who reviewed Mr. Fultz’s medical records and tissue slides
4 CLINCHFIELD COAL v. FULTZ
from the autopsy. In his report, Dr. Kleinerman found "a moderate
profusion of lesions of simple CWP," "[l]esions of simple nodular sil-
icosis," and "[m]acronodular lesions of silicosis," in addition to
lesions of squamous cell carcinoma. (J.A. at 44.) Dr. Kleinerman con-
cluded that "Mr. Fultz had a moderate extent of simple CWP and sim-
ple nodular silicosis," but that his death was the result of "extensive
squamous cell carcinoma involving his lungs." (J.A. at 45.) The ALJ
noted that Dr. Kleinerman "did not provide an estimate of the size of
the lesions attributable either to coal worker’s pneumoconiosis or to
silicosis." (J.A. at 214.)
In his report, Dr. Caffrey gave a diagnosis based on the autopsy
slides of "simple coal worker’s pneumoconiosis and macronodular
coal worker’s pneumoconiosis, extensive," as well as squamous cell
carcinoma, emphysema, bronchopneumonia, and pleuritis. (J.A. at
85.) Dr. Caffrey concluded that "the patient’s immediate cause of
death was due to extensive keratinizing, squamous cell carcinoma"
with "terminal[ ], acute bronchopneumonia." (J.A. at 87.) Dr. Caffrey
also concluded that Mr. Fultz "showed a moderately severe case of
simple coal worker’s pneumoconiosis and nodular coal worker’s
pneumoconiosis." (J.A. at 87.) He reported that "[t]he size of the
macronodular lesions that were present on the [autopsy] slides that
[he] reviewed were up to 1.2 cms." (J.A. at 87.)
Based on these reports, the ALJ found "that the lesions found on
autopsy, regardless of whether they exceeded 2 centimeters as Dr.
Brooks found or were 1.2 centimeters as Dr. Caffrey found, would be
expected on x-ray to yield one or more large opacities (i.e., greater
than 1 centimeter in diameter)." (J.A. at 215.) The ALJ held that con-
sidering all of the evidence together, the pathological evidence,
including the well-reasoned opinions of Dr. Brooks and Dr. Caffrey,
outweighed the other evidence. (J.A. at 215.) Accordingly, the ALJ
held that Mrs. Fultz was entitled to the irrebuttable presumption of
death due to pneumoconiosis under 20 C.F.R. § 718.304 and awarded
benefits to Mrs. Fultz.
The Benefits Review Board affirmed the ALJ’s award of benefits,
and Clinchfield Coal filed this petition for review.
CLINCHFIELD COAL v. FULTZ 5
II.
We review Mrs. Fultz’s claim for benefits under the Act to deter-
mine whether substantial evidence supports the factual findings of the
ALJ and whether the legal conclusions of the Board and the ALJ are
rational and consistent with applicable law. Bill Branch Coal Corp.
v. Sparks, 213 F.3d 186, 190 (4th Cir. 2000). When reviewing a fac-
tual finding, we must affirm the ALJ’s decision if it is supported by
substantial evidence, Thorn v. Itmann Coal Co., 3 F.3d 713, 718 (4th
Cir. 1993), which is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion," Richardson v. Per-
ales, 402 U.S. 389, 401 (1971) (citations omitted). Under the Act, an
eligible claimant is entitled to survivor’s benefits if the miner’s death
was "due to" pneumoconiosis. 20 C.F.R. § 718.205 (2002).
When a miner is "afflicted with complicated pneumoconiosis, [it]
is ‘irrebuttably presumed’ . . . that his death was due to pneumoconio-
sis." Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 11 (1976). The
irrebuttable presumption applies if "(A) an x-ray of the miner’s lungs
shows at least one opacity greater than one centimeter in diameter;
(B) a biopsy or autopsy reveals "massive lesions" in the lungs; or (C)
a diagnosis by other means reveals a result equivalent to (A) or (B)."
Eastern Associated Coal Corp. v. Director, Office of Workers’ Com-
pensation Programs, 220 F.3d 250, 255 (4th Cir. 2000) (citing 30
U.S.C.A. § 921(c)). We have held that the three methods of invoking
the irrebuttable presumption found in clauses (A), (B), and (C) "de-
scribe a single, objective condition." Eastern, 220 F.3d at 255. There-
fore, the ALJ must make an equivalency determination "to make
certain that regardless of which diagnostic technique is used, the same
underlying condition triggers the irrebuttable presumption."1 Double
1
Our dissenting sister is correct that the ALJ must make an equiva-
lency determination. See post at 13. That determination, however, must
be supported by substantial evidence. The dissent’s reliance on Eastern
Associated Coal Corp. v. Director, OWCP, 220 F.3d 250, 254 (4th Cir.
2000), is misplaced. In Eastern, the ALJ considered x-ray evidence
including readings by several doctors who read the x-ray as showing one
or more opacities larger than one centimeter and autopsy evidence show-
ing lesions of 1.7 centimeters. Eastern, 220 F.3d at 253-57. We held that
although the ALJ’s conclusion that prong (B) was satisfied by the
6 CLINCHFIELD COAL v. FULTZ
B Mining, Inc. v. Blankenship, 177 F.3d 240, 244 (4th Cir. 1999).
Because clause (A) sets out an entirely objective scientific standard,
i.e., an opacity on an x-ray greater than one centimeter, we have held
that it is the benchmark to which evidence under the other clauses in
compared. See Eastern, 220 F.3d at 256; Double B, 177 F.3d at 244.
Accordingly, "massive lesions" sufficient to invoke the irrebuttable
autopsy evidence was based on an incorrect analysis, the autopsy evi-
dence did not undermine the ALJ’s conclusion that prong (A) was satis-
fied by the x-ray evidence, id. at 257, because where "the x-ray evidence
vividly displays opacities exceeding one centimeter, . . . the x-ray evi-
dence can lose force only if other evidence affirmatively shows that the
opacities are not there or are not what they seem to be, perhaps because
of an intervening pathology, some technical problem with the equipment
used, or incompetence of the reader," id. at 256. The autopsy evidence
did not undermine the x-ray evidence because "[w]e [were] given no rea-
son to believe that nodules of 1.7 centimeters would not produce x-ray
opacities greater than one centimeter. To the contrary, the 1991 x-ray,
showing opacities greater than one centimeter in diameter, provide[d]
persuasive evidence that the miner’s lesions did in fact show as opacities
of that size." Id. at 258.
Thus, in Eastern, we did not find that autopsy evidence of lesions of
1.7 centimeters supported invocation of the irrebutable presumption.
Instead, we held that where doctors read the x-ray evidence as showing
lesions of greater than one centimeter in diameter, autopsy evidence of
lesions of 1.7 centimeters did not undermine the x-ray evidence.
In this case, however, the ALJ found that none of the x-ray readings
"indicat[ed] opacities of 1 centimeter in diameter or more." (J.A. at 210.)
Accordingly, here we are considering whether the autopsy evidence by
itself supports invocation of the irrebutable presumption, not whether the
autopsy evidence undermines other evidence. The ALJ’s equivalency
determination in this case is not supported by substantial evidence
because we have no testimony, medical report, or evidence indicating
that the lesions discovered on autopsy would be expected on x-ray to
yield one or more opacities of greater than one centimeter.
The rule that my dissenting colleague posits, that the ALJ’s equiva-
lency determination need not be supported by substantial evidence, has
no boundaries. For example, it would allow the ALJ to make an equiva-
lency determination that a lesion of 0.75 centimeters on autopsy would
show as greater than one centimeter on x-ray.
CLINCHFIELD COAL v. FULTZ 7
presumption under clause (B) are those that "when x-rayed . . . would
show as opacities greater than one centimeter." Eastern, 220 F.3d at
258.
After reviewing the evidence in this case, the ALJ concluded "that
the lesions found on autopsy, regardless of whether they exceeded 2
centimeters as Dr. Brooks found or were 1.2 centimeters as Dr. Caf-
frey found, would be expected on x-ray to yield one or more large
opacities (i.e., greater than 1 centimeter in diameter)." (J.A. at 215.)
There was no testimony or medical report or evidence indicating that
the lesions discovered on autopsy would be expected on x-ray to yield
one or more opacities of greater than one centimeter or that the size
of a lesion on autopsy was equivalent or less than the expected size
on x-ray. In fact, both Dr. Caffrey and Dr. Brooks declined to offer
an opinion on that point. When asked whether he could state to a rea-
sonable degree of medical certainty that the lesions he saw on the
autopsy slides were "the medical equivalent of a one centimeter x-ray
reading," Dr. Caffrey stated "I don’t know."2 (J.A. at 213-14.) Simi-
2
The dissent reads too much into Dr. Caffrey’s deposition testimony.
The entire sequence of questions is as follows:
Q. Okay. Do you feel that you could state to a reasonable
degree of medical certainty, Dr. Caffrey, that from what you saw
on the slides, do you think that that’s a medical equivalent of a
one centimeter x-ray reading of a nodule of coal dust?
A. I don’t know, sir. It’s very difficult, in my opinion, to be
very objective in comparing the size of the lesion grossly or
microscopically with the x-ray changes, unless you’re looking at
them at the same time.
In other words, if you had the x-ray in the autopsy suite, up
on the Roentgenogram, the x-ray view boxes, and you looked at
those, then measured the size — and you had a highly skilled
radiologist with you — and then you saw the lesions at the
autopsy table and you compared them; that, to me, is the only
real objective way to determine if the sizes are very similar.
Q. Okay. But the x-rays are done on a scale of 1-to-1; in
other words, there’s no enlargement or decrease in size on an x-
ray, is there —
A. Not that I know of.
8 CLINCHFIELD COAL v. FULTZ
larly, when asked if she could opine as to whether the lesions found
on autopsy "were complicated pneumoconiosis [that] would have
shown up on a chest x-ray," Dr. Brooks stated, "I can’t comment on
that." (J.A. at 122.) Thus, when specifically questioned, Dr. Brooks
herself was unable to correlate her findings on autopsy with the
expected size of the lesions on x-ray.
While there may be lesions so large that it is self-evident that they
would have shown as opacities greater than one centimeter on x-ray,
we cannot presume that lesions of 1.2 centimeters3 are so large that
Q. — unless it’s noted or something?
A. Not that I know of.
Q. Okay. So do you think it’s very possible that the 1.2 cen-
timeter size could be the medical equivalent of a one centimeter
measurement on a x-ray?
A. It could be.
Q. And would you go as far as to say, very likely it would
be the equivalent?
A. I don’t know. That would be speculation on my part.
(J.A. at 164-65.) This testimony is hardly the substantial evidence
required to support the ALJ’s finding of equivalency. Rather than being
a concession that lesions of 1.2 centimeters would show on x-ray as
greater than one centimeter, see post at 11-12, 14, Dr. Caffrey’s testi-
mony "it could be" is simply part of his string of responses indicating
that he did not know how the lesions would show on x-ray and that any
guess would be speculation. The ALJ noted that Dr. Caffrey "declined
to say that the two [the autopsy and the x-ray] would be equivalent as it
would involve speculation on his part." (J.A. at 214.)
3
The dissent would have us rely on the testimony of Dr. Brooks to sup-
port the equivalency determination, even though the ALJ explicitly did
not. See post at 14. The ALJ held that even if the lesions "were 1.2 centi-
meters as Dr. Caffrey found," the lesions would be expected to show as
greater than one centimeter on x-ray and that "it is undisputed that the
Miner had at least 1.2 centimeter lesions of coal workers pneumoconiosis
on autopsy and I find that these autopsy findings satisfy the statutory and
regulatory definition." (J.A. at 215.) Our review of an ALJ’s findings, as
CLINCHFIELD COAL v. FULTZ 9
there need be no further testimony or evidence as to whether they
would have shown on x-ray as opacities of greater than one centime-
ter. Cf. Double B, 177 F.3d at 244 (concluding that evidence of
lesions of 1.3 centimeters, standing alone, was insufficient to deter-
mine whether miner had complicated pneumoconiosis and remanding
for an equivalency determination); see also id. (noting that "‘nodules
are generally larger on autopsy examination than they appear on a
chest radiograph’" (quoting N. LeRoy Lapp, M.D., A Lawyer’s Medi-
cal Guide to Black Lung Litigation, 83 W. Va. L. Rev. 721, 736
(1981))). Without more, we cannot conclude that the ALJ’s finding
that the lesions would have shown as one or more opacities of greater
than one centimeter is supported by substantial evidence.4
III.
Because there was insufficient evidence to support the ALJ’s find-
ing that Mr. Fultz had lesions that would have shown as greater than
one centimeter on x-ray, we vacate the Board’s decision upholding
affirmed by the Board, is very limited. "We may not reweigh the evi-
dence or substitute our views for those of the ALJ . . . ." Lane v. Union
Carbide Corp., 105 F.3d 166, 170 (4th Cir. 1997). As the ALJ’s finding
was lesions of 1.2 centimeters satisfied the statutory and regulatory defi-
nition, it is that finding that we must review. Plainly, Dr. Brooks’s testi-
mony does nothing to support this finding. As there is no medical report,
testimony or other evidence indicating that the lesions of 1.2 centimeters
would be expected to show as greater than one centimeter on x-ray, the
finding is not supported by substantial evidence.
4
Clinchfield Coal argues that the autopsy report should not have been
considered because it did not comply with 20 C.F.R. § 718.106 (2000).
Mrs. Fultz argues, and the BRB concluded, that the autopsy report, when
considered with Dr. Brooks’s later deposition testimony, substantially
complied with the requirements of 20 C.F.R. § 718.106. We assume
without deciding that the ALJ properly considered the autopsy report.
Even making this assumption, there is insufficient evidence to support
the ALJ’s finding that the lesions would have shown as opacities of
greater than one centimeter. We thus reach neither the issue of whether
substantial compliance with the regulation is sufficient nor the issue of
whether evidence outside the autopsy report itself may be considered in
determining whether the requirements of 20 C.F.R. § 718.106 are met.
10 CLINCHFIELD COAL v. FULTZ
the award of benefits to Mrs. Fultz and direct the Board to remand the
case to an ALJ for further proceedings consistent with this opinion.5
VACATED AND REMANDED
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
The majority vacates the award of black lung benefits to the widow
of Clarence Fultz, who died in 1999 after working as a coal miner for
more than 30 years. I respectfully dissent.
It is conceded that Mrs. Fultz is entitled to survivor’s benefits if her
husband’s death was "due to pneumoconiosis." The Black Lung Ben-
efits Act provides an irrebuttable presumption of "death due to pneu-
moconiosis" if "a miner is suffering from a chronic dust disease of the
lung" which:
(A) when diagnosed by chest roentgenogram [x-ray], yields
one or more large opacities (greater than one centimeter in
diameter) . . ., (B) when diagnosed by biopsy or autopsy,
yields massive lesions in the lung, or (C) when diagnosis is
made by other means, would be a condition which could
reasonably be expected to yield results described in clause
(A) or (B) if diagnosis had been made in the manner pre-
scribed in clause (A) or (B).
30 U.S.C.A. § 921(c)(3) (1986).1 Circuit precedent requires that "the
ALJ ma[ke] [an] equivalency determination" between the standards of
5
The tenor of the dissent would suggest that this opinion precludes the
miner’s widow from obtaining benefits. To the contrary, we are remand-
ing for the ALJ to make a factual finding based on testimony, medical
reports or other evidence that the opacities would show as greater than
one centimeter. Nothing in this opinion precludes the miner’s widow
from receiving benefits or precludes invocation of the irrebutable pre-
sumption based on an equivalency determination supported by substan-
tial evidence.
1
Such a condition "is commonly referred to as ‘complicated’ pneumo-
coniosis." Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 757 n.3 (4th
Cir. 1999).
CLINCHFIELD COAL v. FULTZ 11
prongs (A) and (B) of § 921(c)(3) — to assure that the "massive
lesions" diagnosed by autopsy or biopsy under (B) would if contem-
poraneously x-rayed show an opacity of "greater than one centimeter"
under (A). Double B Mining, Inc. v. Blankenship, 177 F.3d 240, 244
(4th Cir. 1999).
Here the ALJ made the required equivalency determination, find-
ing that "the lesions found on autopsy, regardless of whether they
exceeded 2 centimeters as Dr. Brooks found or were 1.2 centimeters
as Dr. Caffrey found, would be expected on x-ray to yield one or
more large opacities, (i.e., greater than one centimeter in diameter)[.]"
Nevertheless, the majority vacates the benefits award, asserting that
no "substantial evidence" supports the ALJ’s equivalency determina-
tion. I believe the majority seriously errs in doing so.
First, although the majority states the correct "substantial evidence"
standard of review, it fails to apply that standard. A court reviewing
an administrative decision to determine if it is supported by substan-
tial evidence is not authorized to subject the decision to burdensome
fly-specking. Rather, a court "must affirm" an ALJ’s decision if, "in
light of the whole record," the decision is supported by evidence of
"sufficient quality and quantity ‘as a reasonable mind might accept as
adequate to support the finding under review.’" Piney Mountain, 176
F.3d at 756 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal quotation marks omitted)) (emphasis added). Thus, "the
Supreme Court has directed us to uphold decisions that rest within the
realm of rationality; a reviewing court has no license to ‘set aside an
inference merely because it finds the opposite conclusion more rea-
sonable or because it questions the factual basis.’" Id. at 756 (quoting
Doss v. Director, OWCP, 53 F.3d 654, 659 (4th Cir. 1995) (internal
quotation marks omitted)) (emphasis added). Unfortunately, however,
even a quick review of the record evidence here demonstrates that the
majority has appropriated for itself precisely such a "license."
The record reveals that Mrs. Fultz offered powerful evidence of
lesions on Mr. Fultz’s lungs resulting from coal-dust exposure, which
exceeded not one, but two, centimeters. Dr. Brooks, who performed
the autopsy of Mr. Fultz and diagnosed the cause of death as due, in
part, to complicated pneumoconiosis, explained in detail that she
found many — "too numerous to count" — large coal-dust lesions "in
12 CLINCHFIELD COAL v. FULTZ
excess of two centimeters." Dr. Brooks’ autopsy report confirmed that
"[a]nthracosis [wa]s severe" with "multiple areas of black macular
discoloration," that "[t]he bronchi contain copious amounts of puru-
lent material," and "multiple areas of fibrosis and firm nodules" were
found in both lungs. Although the company’s expert, Dr. Caffrey, dis-
agreed with Dr. Brooks’ ultimate conclusion (i.e., that Mr. Fultz had
complicated rather than "moderately severe" simple pneumoconiosis),
he too found lesions on the autopsy slides exceeding one centimeter
(albeit only lesions of 1.2, rather than two, centimeters). Moreover,
when asked if there would be "enlargement or decrease in [the] size
[of these lesions] on x-ray," Dr. Caffrey testified, "not that I know of,"
and while he also did not know whether the autopsy and x-ray mea-
surements were "very likely" equivalent, he acknowledged that "it
could be" "very possible that the 1.2 centimeter size [of autopsy
lesions] could be the medical equivalent of a one centimeter measure-
ment on x-ray." Relying on this evidence, the ALJ found that even Dr.
Caffrey (the company’s expert) "stated no basis for determining that
the 1.2 centimeter lesions observed on the pathology slides would
equate to less than the 1.2 centimeters on x-ray" and that the lesions
on Mr. Fultz’s lungs, whether 2 centimeters (Dr. Brooks’ view) or 1.2
centimeters (Dr. Caffrey’s view), "would be expected on x-ray to
yield one or more large opacities . . . greater than 1 centimeter in
diameter." Certainly, a "reasonable mind" could "accept" the record
evidence as "adequate" to support this equivalency determination by
the ALJ. See Piney Mountain, 176 F.3d at 756 (internal quotation
marks omitted). Thus, proper application of the substantial evidence
standard requires us to "uphold" the ALJ’s decision. Id.I confess that I do not fully understand the majority’s refusal to do
so. That refusal seems to stem from the majority’s misunderstanding
of the relevant law and from its unjustified disregard of crucial evi-
dence.
As to the former, the majority appears to believe that, in order to
establish equivalency, the law requires a claimant to offer evidence
that a medical professional, rather than the ALJ, has made the equiva-
lency determination. Thus, the majority rejects the ALJ’s express
equivalency determination because there was "no testimony or medi-
cal report or evidence indicating that the lesions discovered on
autopsy would be expected on x-ray to yield one or more opacities of
CLINCHFIELD COAL v. FULTZ 13
greater than one centimeter." Ante at 5-6 n.1. Imposing a requirement
that medical evidence contain the equivalency determination is, how-
ever, directly at odds with circuit precedent.
Indeed, when we first announced the equivalency requirement in
Double B Mining, we made it plain that the ALJ is to make the equiv-
alency determination. In that case, the miner’s physician observed a
nodule of 1.3 centimeters on biopsy of the miner’s lung and opined
that a nodule in excess of one centimeter indicated complicated pneu-
moconiosis; the company’s expert contended that "complicated pneu-
moconiosis exists [only] where there are nodules on the lungs that are
larger than two centimeters in greatest dimension." We expressly
refused "to impose the two-centimeter rule on the Benefits Review
Board," reasoning that the "statute d[id] not mandate" such a rule. Id.
at 243. Instead, we held that because "nothing in the record . . .
demonstrate[s] that the ALJ made th[e] equivalency determination as
required by the statute," we would remand the case "to the ALJ to find
whether the 1.3-centimeter lesion would, if x-rayed prior to removal
of that portion of Blankenship’s lung, have showed as a one-
centimeter opacity." Id. at 244 (emphasis added); see also id. (con-
cluding that the ALJ must make the "equivalency determination").
Thus, in Double B Mining, we emphasized that the ALJ is to make
the necessary equivalency determination. Moreover, a year later in
Eastern Associated Coal Corp. v. Director, OWCP, 220 F.3d 250,
254 (4th Cir. 2000), we affirmed an award of benefits even though no
medical expert made an equivalency determination. In fact, we upheld
the ALJ’s determination in part because there was "no reason to
believe" that autopsy evidence of nodules greater than one centimeter
"would not produce x-ray opacities greater than one centimeter." Id.
at 258. Yet the majority rejects the ALJ’s similar reasoning here that
nothing (not even the company doctor’s testimony) indicates that
autopsy evidence of nodules greater than one centimeter would not
"equate" to x-ray opacities greater than one centimeter. The rationale
for the majority’s apparent imposition of a requirement that a medical
expert make the equivalency determination is thus very puzzling.
Even more puzzling is the only other basis the majority offers for
its refusal to find the ALJ’s equivalency determination not supported
by substantial evidence. That is, the majority’s statement that
14 CLINCHFIELD COAL v. FULTZ
although "there may be lesions so large that it is self-evident that they
would have shown as opacities greater than one centimeter on x-ray,"
such a "self-evident" conclusion is not possible here because it cannot
be "presume[d] that lesions of 1.2 centimeters are so large that there
need be no further testimony or evidence as to whether they would
have shown on x-ray as opacities greater than one centimeter." Ante
at 8 (emphasis added) (footnote omitted). In arriving at this conclu-
sion, the majority disregards Dr. Brooks’ powerful testimony of
numerous ("too many to count") lesions in excess of two (not 1.2) centi-
meters.2 The majority’s failure to consider this evidence is important
because through it, Mrs. Fultz presented autopsy evidence of black
lung lesions which exceed the apparent two-centimeter "gold stan-
dard" frequently advanced by the American College of Pathologists
and employers as conclusively establishing complicated pneumoconi-
osis. Cf. Double B Mining, 177 F.3d at 243-44; Piney Mountain, 176
F.3d at 761 n.8. Surely such evidence suffices to meet the majority’s
own "self-evident" standard. Yet the majority completely rejects it.
In sum, despite Dr. Brooks’ findings of multiple lesions greater
than two centimeters, Dr. Caffrey’s findings of lesions of at least 1.2
centimeters, and his concession that "it could be" "very possible" that
such lesions are "the medical equivalent of a one centimeter measure-
ment on x-ray," the majority concludes that the ALJ did not have sub-
stantial evidence to support her equivalency determination. Because
this conclusion is based on a failure to apply the governing standard
of review, an imposition of an unauthorized legal burden, and the dis-
regard of record evidence, I must respectfully dissent.
2
The majority critizes my reliance, in part, on Dr. Brooks’ testimony.
The ALJ clearly relied on this evidence, although she declined to resolve
the differing opinions on the size of the lesions based on the undisputed
findings of lesions of "at least 1.2 centimeter[s]."