Shannon-Pocahontas v. DOWCP ( 1996 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    SHANNON-POCAHONTAS MINING
    COMPANY,
    Petitioner,
    v.
    No. 95-2279
    DIRECTOR, OFFICE OF WORKERS'
    COMPENSATION PROGRAMS, UNITED
    STATES DEPARTMENT OF LABOR;
    ALBERT T. BLEVINS,
    Respondents.
    On Petition for Review of an Order
    of the Benefits Review Board.
    (94-0272-BLA-A)
    Submitted: November 19, 1996
    Decided: December 4, 1996
    Before HAMILTON and LUTTIG, Circuit Judges, and PHILLIPS,
    Senior Circuit Judge.
    _________________________________________________________________
    Vacated and remanded by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    William T. Brotherton, III, SPILMAN, THOMAS & BATTLE,
    Charleston, West Virginia, for Petitioner. Christian P. Barber, Jill M.
    Otte, UNITED STATES DEPARTMENT OF LABOR, Washington,
    D.C.; William Burton Talty, Richmond, Virginia, for Respondents.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Shannon-Pocahontas Mining Company (employer) petitions for
    review of a decision of the Benefits Review Board (Board) affirming
    the administrative law judge's (ALJ) decision to award black lung
    benefits to Albert Blevins. We must affirm the decision of the Board
    if the Board properly decided that the ALJ's findings are supported
    by substantial evidence. Doss v. Director, Office of Workers' Com-
    pensation Programs, 
    53 F.2d 654
    , 658 (4th Cir. 1995). With this prin-
    ciple in mind, we vacate the decision of the Board, and remand to the
    Board with instructions to remand to the ALJ for further proceedings.
    The employer contends that the ALJ's finding of total disability
    due to pneumoconiosis is not supported by substantial evidence. We
    agree. The evidence relevant to the issue of disability in this case con-
    sisted of ventilatory studies, blood gas studies, and medical reports.
    None of the miner's ventilatory studies revealed evidence of disability
    under the regulatory criteria for assessing disability. Of the miner's
    five resting blood gas studies and two exercise studies, one resting
    study produced values presumptive of disability under the regulations.
    Finally, Drs. Robinette and Cardona opined that the miner was totally
    disabled due to pneumoconiosis, while Drs. Zaldivar and Vasudevan
    found that the miner had no pulmonary impairment.
    In finding total disability, the ALJ primarily relied on the report of
    Dr. Robinette, although he also credited Dr. Cardona's report. He
    found that the reports of Drs. Zaldivar and Vasudevan failed to negate
    Dr. Robinette's report, which he found was supported by the blood
    gas evidence. He did not find the objective studies, viewed in isola-
    tion, indicative of disability under 
    20 C.F.R. § 718.204
    (c)(1) & (2)
    (1996).
    Dr. Robinette testified at his deposition that his finding of total dis-
    ability was based primarily on the miner's ventilatory response to
    2
    exercise during an exercise blood gas study performed by Dr.
    Vasudevan in January 1991. He believed that the miner's resting
    blood gas tests of January and February 1991 demonstrated hypox-
    emia and thus provided further evidence of disability, but admitted
    that without the evidence of the miner's intolerance to exercise during
    this study he would not have concluded that the miner was totally dis-
    abled. Dr. Vasudevan intended to measure the miner's anaerobic
    threshold during this study by exercising him for ten minutes on a
    treadmill, but the miner voluntarily terminated the study after five
    minutes based on his complaints of shortness of breath and leg
    fatigue. Dr. Vasudevan did not believe any valid conclusions could be
    drawn from the study because it ended prematurely, and did not find
    the miner's inability to continue indicative of a respiratory problem
    because the miner exhibited no objective signs of pulmonary or car-
    diac problems during the test. Rather, he attributed the miner's inabil-
    ity to continue to deconditioning and obesity.
    Dr. Robinette interpreted the study differently, opining that it dem-
    onstrated an intolerance to exercise severe enough to preclude the
    miner from performing his usual coal mine work as an end loader. He
    found that the miner's high tidal volume during the test indicated a
    mild to moderate respiratory impairment. After reviewing Dr. Robin-
    ette's deposition, Drs. Zaldivar and Vasudevan both stated that the
    miner's large tidal volume during the test was no reason for concern
    because it progressively decreased with exercise and because all other
    pulmonary parameters were normal. They noted, for example, that the
    miner's PO2 actually improved with exercise. Dr. Zaldivar opined
    that the miner's large tidal volume was due to hyperventilation due
    to anxiety. He commented that the miner also exhibited hyperventila-
    tion due to anxiety during the exercise blood gas study that he per-
    formed.
    We agree with the employer that the ALJ failed to adequately
    resolve the conflict between the physicians of record regarding the
    significance of the miner's ventilatory response to exercise during Dr.
    Vasudevan's exercise blood gas study. An ALJ is required to explain
    his reasons for crediting one physician over another. See Peabody
    Coal Co. v. Hale, 
    771 F.2d 246
    , 249 (7th Cir. 1985). Moreover, given
    Dr. Robinette's admission that his entire opinion hinged on his inter-
    3
    pretation of the miner's performance during this study, resolution of
    this conflict was critical to the outcome of this case.
    The ALJ did not overlook the study. His opinion discusses Dr.
    Robinette's views of the study. His opinion, however, does not dis-
    cuss the contrary views of Drs. Zaldivar and Vasudevan concerning
    the study, and, most importantly, does not explain why Dr. Robin-
    ette's interpretation of the study is more credible than the opposing
    view. We note that the need for the ALJ to provide a rationale was
    particularly strong in view of the fact that he credited the opinion of
    a consulting physician over the opinion of the physician who actually
    performed the study. See Siegel v. Director, Office of Workers' Com-
    pensation Programs, 8 BLR 1-156 (1986).
    In according greatest weight to Dr. Robinette's report, the ALJ
    relied on his finding that the blood gas evidence--specifically, the
    resting studies of January and February 1991--supported Dr. Robin-
    ette's conclusions. The ALJ found that the blood gas evidence dem-
    onstrated that the miner had hypoxemia on "several different occa-
    sions," that this evidence demonstrated that Dr. Zaldivar's finding of
    no pulmonary impairment "in fact was not true," and that Dr. Zaldivar
    chose to ignore this evidence. He acknowledged that the miner's PO2
    values on resting and blood gas testing had fluctuated greatly, but
    found that Dr. Robinette had demonstrated through reference to medi-
    cal literature that such variations were normal.
    There are two problems with the ALJ's finding that the miner
    exhibited hypoxemia "on several occasions." First, it mildly over-
    states the case, because the miner's studies only arguably evinced
    hypoxemia on two occasions. Second, the statement wrongly implies
    that the miner's condition has remained constant over time. In fact,
    studies performed before and after the two month period in which the
    miner exhibited abnormal test results were undisputedly normal.
    We also find that the ALJ impermissibly made a medical determi-
    nation by concluding that the blood gas evidence proved that Dr. Zal-
    divar's finding of no impairment was untrue. An ALJ may not
    interpret medical data and substitute his opinion for that of a physi-
    cian. See Marcum v. Director, Office of Workers' Compensation
    Programs, 11 BLR 1-23 (1987). Because no physician found the
    4
    blood gas evidence sufficient, alone, to support a finding of impair-
    ment, the ALJ could not make this finding. Moreover, contrary to the
    ALJ's finding, Dr. Zaldivar did not ignore the miner's qualifying and
    nearly qualifying resting blood gas studies. Rather, he agreed with Dr.
    Vasudevan that the results of these studies varied too much from the
    other studies, indicating that the results were either not valid due to
    technical problems with the administration of the tests, or that the
    miner had an acute problem in January and February 1991 that later
    resolved. Drs. Zaldivar and Vasudevan both also noted that hypox-
    emia at rest was not significant because the miner's blood gases
    returned to normal after exercise.
    The ALJ also erred in his discussion of the variation between the
    miner's blood gas results. In resting studies, the miner's PO2 varied
    from 64 to 100, and in exercise studies, his PO2 varied from 83 to
    102. The ALJ stated that Dr. Robinette's medical literature explained
    that the variance was normal. In fact, Dr. Robinette admitted that the
    variance was abnormal because it exceeded 15 percent, and that his
    references to medical literature were purely academic in this case and
    did not support his finding of total disability.*
    We therefore conclude that the ALJ erred in finding that the miner
    established a totally disabling respiratory impairment. We also find
    that he erred, however, in finding that any impairment the miner
    might have was due to pneumoconiosis. He apparently based this
    determination on the miner's lengthy history of coal dust exposure
    and his finding that neither Dr. Zaldivar nor Dr. Vasudevan offered
    any alternate medical explanation for the miner's shortness of breath.
    The employer correctly argues on appeal that it was not required to
    prove an alternate cause for the miner's respiratory symptoms, but
    that in any event Dr. Vasudevan did so when he opined that the
    miner's shortness of breath was due to a combination of decondition-
    ing and obesity. While the ALJ noted Dr. Vasudevan's reference to
    the miner's obesity, he rejected it apparently based on his belief that,
    at 59 and 186 pounds, the miner was not obese. We find, however,
    _________________________________________________________________
    *Regarding the literature, we also note that Dr. Zaldivar's comments
    concerning the extent to which bronchitis may be disabling were a
    response to points made in the literature cited by Dr. Robinette, and are
    irrelevant to this case.
    5
    that whether the miner is obese, and whether his weight could be a
    factor contributing to shortness of breath, is yet another medical
    determination which must be made by a physician.
    We therefore vacate the decision of the Board affirming the ALJ's
    finding of total disability due to pneumoconiosis, and remand to the
    Board for further remand to the ALJ for reconsideration of the evi-
    dence consistent with this opinion. On remand, the ALJ should
    reweigh all four medical opinions, and all other relevant evidence,
    which addresses disability. We reject the employer's contention that
    Dr. Cardona's opinion may not be considered because it is hostile to
    the Black Lung Benefits Act. Contrary to the employer's assertion,
    Dr. Cardona does not state that all persons having lengthy coal mine
    employment histories must be considered totally disabled. Rather, he
    stated that most would be, and explained that his finding in this case
    was based on the claimant's particular history, symptoms, and physi-
    cal examination. We dispense with oral argument because the facts
    and legal contentions are adequately presented in the materials before
    the court and argument would not aid the decisional process.
    VACATED AND REMANDED
    6
    

Document Info

Docket Number: 95-2279

Filed Date: 12/4/1996

Precedential Status: Non-Precedential

Modified Date: 4/18/2021