Consolidation Coal Co. v. Latusek , 89 F. App'x 373 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CONSOLIDATION COAL COMPANY, 
Petitioner,
v.
THEODORE M. LATUSEK, JR.;  No. 03-1112
DIRECTOR OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the
Benefits Review Board.
(02-279-BLA)
Argued: October 28, 2003
Decided: January 23, 2004
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Reversed by unpublished per curiam opinion. Judge Gregory wrote a
dissenting opinion.
COUNSEL
ARGUED: William Steele Mattingly, JACKSON KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner. Sue Anne Howard,
HOWARD LAW OFFICE, Wheeling, West Virginia, for Respon-
dents.
2 CONSOLIDATION COAL COMPANY v. LATUSEK
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Consolidation Coal Company seeks review of the decision and
order of the Benefits Review Board affirming the administrative law
judge’s award of black lung benefits pursuant to 30 U.S.C.A. §§ 901-
945 (West 1986 & Supp. 2003). Because our review of the record dis-
closes that the ALJ’s decision is not supported by substantial evi-
dence, we reverse the award of benefits.
I.
Theodore Latusek, Jr., worked in the coal mines of West Virginia
for approximately twenty-four years, all of them with Consolidation
Coal. During his tenure, Latusek worked as a general laborer, shuttle
car operator, loading machine operator, miner operator, mechanic,
section boss, and long wall operations coordinator. He was exposed
to dust throughout his career, particularly while he served as a long
wall operations coordinator.
The history of Latusek’s diagnosis and treatment is summarized in
our earlier opinion in this case. See Consolidation Coal Co. v.
Latusek, 187 F.3d 628, 1999 WL 592051 (4th Cir. 1999) (unpub-
lished) (Latusek I). Latusek has at least a mild case of coal workers’
pneumoconiosis and interstitial pulmonary fibrosis (IPF).1 The parties
agree that Latusek has a totally disabling pulmonary condition. As the
ALJ found, "[a]ll of the experts agree that claimant’s total disability
is due to IPF; however, the experts provide conflicting testimony as
to the cause of the disability. Drs. Jennings and Rose concluded that
IPF is related to exposure to coal mine dust, while Drs. Kleinerman,
1
Interstitial pulmonary fibrosis (IPF) is also known as usual interstitial
fibrosis (UIP). For ease of reference, we will refer to the condition as
IPF.
CONSOLIDATION COAL COMPANY v. LATUSEK 3
Renn, Morgan, and Fino concluded that IPF is not related to coal dust
exposure." (J.A. at 540.)
In his first decision, the ALJ concluded that "claimant’s IPF arose
out of his coal mine employment and . . . he is totally disabled due
to pneumoconiosis." (J.A. at 507.) The BRB affirmed the ALJ’s deci-
sion. On Consolidation Coal’s petition for review, we vacated the
award of benefits and remanded for further consideration because "the
ALJ did not fulfill his duty to fully consider the entire record and pro-
vide adequate reasons for discounting significant expert medical testi-
mony." Latusek I, 1999 WL 592051 at **5. We were particularly
concerned with the ALJ’s crediting of the testimony of Drs. Jennings
and Rose based primarily on three medical articles discussing IPF,
which offered "[a]t best . . . tepid support" for their conclusion. Id. at
**4. Moreover, we found it "most troubling" that the ALJ’s "sole rea-
son . . . for discrediting the opinions of Drs. Kleinerman, Renn, Mor-
gan, and Fino was that ‘they were unable to cite any medical articles
finding that there was no causal connection between IPF and coal dust
exposure.’" Id. (citation and footnote omitted).
In his second decision, the ALJ again awarded benefits. The ALJ
found that the opinions of Drs. Fino, Morgan, Kleinerman, and Renn
were irrational because they "agree that they do not know the etiology
of claimant’s IPF, although they all opine it cannot be coal dust expo-
sure." (J.A. at 531.) The ALJ also found that Drs. Rose and Jennings
had "more expertise in regard to IPF," and that their opinions were
well-reasoned. (J.A. at 531.) Accordingly, he gave their opinions "the
most weight." (J.A. at 531.)
The BRB concluded that "[t]he administrative law judge’s weigh-
ing of the . . . medical opinions of record . . . cannot be affirmed."
(J.A. at 536.) Among other flaws, the BRB concluded that the ALJ
did not address Consolidation Coal’s argument that the opinions of
Drs. Jennings and Rose were not reliable because they were based on
flawed epidemiological studies contained in the three medical articles.
(J.A. at 537.) Accordingly, the BRB vacated the ALJ’s findings and
remanded for further proceedings.
In his third decision, the ALJ once again awarded benefits. With
regard to the credentials of the doctors, the ALJ found:
4 CONSOLIDATION COAL COMPANY v. LATUSEK
While the credentials of Dr. Kleinerman, an expert on the
pathology of occupational lung diseases, and Drs. Renn,
Morgan, and Fino, pulmonary specialists with expertise on
occupational lung diseases, are undoubtly [sic] impressive,
Drs. Jennings and Rose’s credentials are superior to these
physicians in the area of interstitial lung disease. . . . There-
fore, I find Dr. Jennings and Rose[’s] credentials regarding
IPF superior to the credentials of Drs. Kleinerman, Renn,
Morgan, and Fino, and accord their opinion great weight.
(J.A. at 540-41.) The ALJ again found the opinions of Drs. Kleiner-
man, Fino, Renn, and Morgan to be "irrational" because "these physi-
cians are able to draw a conclusion as to what is not the cause of
claimant’s IPF when they cannot even give an opinion as to the cause
of this disease." (J.A. at 541.) Therefore, the ALJ accorded these
opinions "little weight." (J.A. at 541.)
The ALJ also found that "the opinions of Drs. Jennings and Rose
[were] well documented and better supported by the underlying data
of record and therefore accord[ed] these opinions great weight." (J.A.
at 541.) With regard to the allegedly flawed epidemiological studies
underlying the three medical articles that Drs. Jennings and Rose
relied on, the ALJ found that "[e]ven if these studies are flawed, I find
the opinions of Drs. Jennings and Rose to be reliable. I credit their
opinions without regard to these articles because the physicians did
not rely on these articles in their opinion that claimant’s IPF is related
to his coal mine employment, but merely used them as support for
their opinion." (J.A. at 542.) Over a strong dissent, the BRB affirmed
the ALJ’s award of benefits. Consolidation Coal petitions for review
of the BRB’s order.
II.
We review decisions of the BRB to determine whether the BRB
properly found that the ALJ’s decision was supported by substantial
evidence and was in accordance with law. See Doss v. Director,
Office of Workers’ Compensation Programs, 53 F.3d 654, 658-59
(4th Cir. 1995). In making this determination, we conduct an indepen-
dent review of the record in deciding whether the ALJ’s findings are
supported by substantial evidence. See Dehue Coal Co. v. Ballard, 65
CONSOLIDATION COAL COMPANY v. LATUSEK 5
F.3d 1189, 1193 (4th Cir. 1995). Substantial evidence is more than a
scintilla, but only such evidence that a reasonable mind could accept
as adequate to support a conclusion. See Lane v. Union Carbide
Corp., 105 F.3d 166, 170 (4th Cir. 1997).
In order to establish a right to benefits under the Black Lung Bene-
fits Act, 30 U.S.C.A. §§ 901-945, "a claimant must prove that (1) he
has pneumoconiosis; (2) the pneumoconiosis arose out of his coal
mine employment; (3) he has a totally disabling respiratory or pulmo-
nary condition; and (4) pneumoconiosis is a contributing cause to his
total respiratory disability." Milburn Colliery Co. v. Hicks, 138 F.3d
524, 529 (4th Cir. 1998) (emphasis added) (citing, inter alia, 20
C.F.R. §§ 718.201-.204 (1997)).2 Because the ALJ found, "[a]ll of the
experts agree that the claimant’s total disability is due to IPF," (J.A.
at 540), the only remaining question is whether Latusek’s IPF meets
the definition of legal pneumoconiosis, which is "a chronic dust dis-
ease of the lung and its sequelae, including respiratory and pulmonary
impairments, arising out of coal mine employment." 20 C.F.R.
§ 718.201 (2003). If it does, then pneumoconiosis is a contributing
cause to his total respiratory disability.
Drs. Jennings and Rose concluded that Latusek’s IPF is related to
exposure to coal mine dust, while Drs. Kleinerman, Renn, Morgan,
and Fino concluded that Latusek’s IPF is not related to coal dust
exposure. The ALJ credited the opinions of Drs. Jennings and Rose
over the opinions of Drs. Kleinerman, Renn, Morgan, and Fino. Our
review of the record convinces us that the ALJ erred in his evaluation
of the medical opinion evidence. First, it was error to discredit the
opinions of Drs. Fino, Renn, Morgan, and Kleinerman as irrational
solely because they were "able to draw a conclusion as to what is not
the cause of claimant’s IPF when they cannot even give an opinion
as to the cause of this disease." (J.A. at 541.) It is clearly not irrational
for a physician to eliminate certain causes while not being able to
ascertain the definitive cause.
2
We note that 20 C.F.R. § 718 (1998) applies to all claims filed after
April 1, 1980, and thus applies to this case. See Lane v. Union Carbide
Corp., 105 F.3d 166, 170 (4th Cir. 1997).
6 CONSOLIDATION COAL COMPANY v. LATUSEK
Second, we have previously held in this case that Dr. Jennings’s
credentials, and by analogy Dr. Rose’s, are "not indisputably superior
to those of the other physicians of record." Latusek I, 1999 WL
592051 at **4 n.4. Drs. Jennings and Rose have experience with IPF,
but the relevant question here is whether Latusek’s IPF is a "chronic
dust disease of the lung . . . arising out of coal mine employment,"
20 C.F.R. § 718.201. Thus, the extensive experience of Drs. Renn,
Fino, Morgan, and Kleinerman with patients having coal mine experi-
ence and coal dust exposure must be factored in along with their
experience with IPF.3 Our dissenting colleague notes that Drs. Jen-
nings and Rose have some experience with patients having coal dust
exposure. Post, at 9-10. The ALJ, however, credited Drs. Jennings
and Rose’s opinions because he found their "credentials regarding
IPF superior to the credentials of Drs. Kleinerman, Renn, Morgan,
and Fino." (J.A. at 540-41.) We must review the findings that the ALJ
actually made. It was error to discredit the opinions of Drs. Kleiner-
man, Renn, Morgan, and Fino as having inferior credentials in the
area of IPF without considering the vast experience that these doctors
have researching, diagnosing and treating diseases that meet the rele-
vant regulatory standard, that is "chronic dust disease[s] of the lung
. . . arising out of coal mine employment," 20 C.F.R. § 718.201.
Third, the ALJ’s finding that Drs. Jennings and Rose did not rely
on the flawed articles in coming to their conclusions is not supported
by substantial evidence. Although the doctors noted a few factors that
made Latusek’s IPF atypical, the deposition testimony of both doctors
shows that they relied on the epidemiological research in the three
3
For example, as we noted in Latusek I, "Dr. Jerome Kleinerman has
served as the Director of the Department of Pathology at the Metro Cam-
pus of Case Western Reserve University, has chaired the National Insti-
tute of Occupational Safety and Health committee responsible for
developing the guidelines for diagnosing coal workers’ pneumoconiosis,
and has authored over 160 articles appearing in peer review journals, the
vast majority of which dealt with lung disease, pneumoconiosis, or
emphysema. Dr. Kleinerman is board certified in clinical pathology and
pathologic anatomy. In addition, Dr. Kleinerman undertook graduate
studies in human pulmonary function at the University of Pennsylvania
Graduate School of Medicine following his graduation from medical
school." Consolidation Coal Co. v. Latusek, 187 F.3d 628, 1999 WL
592051 (4th Cir. 1999) (unpublished).
CONSOLIDATION COAL COMPANY v. LATUSEK 7
medical articles in coming to their conclusions that there was a rela-
tionship between Latusek’s coal dust exposure and his IPF. (See J.A.
at 303-08 (deposition of Dr. Jennings) ("There is epidemiologic
research, which suggests that individuals with exposure to silicates
and other dusts have a much higher frequency of developing intersti-
tial pulmonary fibrosis . . . ."); J.A. at 244-45 (deposition of Dr. Rose)
("[T]here is data emerging to suggest that there may be a relationship
between exposure to occupational dust with the subsequent develop-
ment of pneumoconiosis, and with histologic findings of diffuse inter-
stitial fibrosis.").)
The "substantial evidence" standard is tolerant of a wide range of
findings on a given record, but the ALJ’s decision here exceeds the
limits of that tolerance. We find that "no ‘reasonable mind’ could
have interpreted and credited the [medical opinions] as the ALJ did."
See Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 764 (4th Cir.
1999). Because there remains no evidence upon which to base a find-
ing of entitlement to benefits, Latusek has not carried his burden to
prove that his total disability is due to pneumoconios. Accordingly,
we reverse the award of benefits.
REVERSED
GREGORY, Circuit Judge, dissenting:
Consolidation Coal Company ("Consol") disputes the Administra-
tive Law Judge’s ("ALJ") conclusion that Theodore Latusek is enti-
tled to benefits under Title VI of the Federal Coal Mine Health and
Safety Act of 1969 ("Black Lung Benefits Act" or "BLBA"); 30
U.S.C. §§ 901-45 (West 1986 & Supp. 2003). On July 5, 1994,
Latusek, who had never been a smoker, filed a disability claim, after
retiring from twenty-four years of coal mine employment. The parties
do not dispute that Latusek suffers from a totally disabling pulmonary
condition; however, Consol’s experts claim that the etiology of
Latusek’s impairment is unknown, while Latusek’s physicians main-
tain that his condition was caused by occupational coal dust exposure.
In three separate opinions, the ALJ has consistently concluded that
Latusek demonstrated that he was entitled to black lung benefits. The
ALJ’s conclusion was affirmed on two separate occasions by the Ben-
8 CONSOLIDATION COAL COMPANY v. LATUSEK
efits Review Board ("BRB").1 Consol, Latusek’s former employer,
appeals the BRB’s most recent order affirming the ALJ’s decision to
award black lung benefits. After reviewing the entire record, I find
there is substantial evidence to support the ALJ’s decision. Accord-
ingly, for the reasons that follow, I respectfully dissent.
I.
The majority asserts that it reviewed the ALJ’s order under the
"substantial evidence" standard, which is far more deferential than de
novo review. Under the substantial evidence standard, reviewing
courts are prohibited from substituting their judgment for that of the
ALJ. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)
("Ultimately, it is the duty of the administrative law judge reviewing
a case, and not the responsibility of the court, to make findings of fact
and to resolve conflicts in evidence."). The majority ignores this well
established principle of appellate review by concluding that it was
irrational for the ALJ to rely on the opinions of Drs. Jennings and
Rose more than those of Drs. Renn, Morgan, Fino, and Kleinerman.
Because the ALJ is in a better position to make credibility determina-
tions, I cannot agree with the majority’s decision to substitute its
judgment for that of the ALJ. If substantial evidence supports the
ALJ’s credibility decisions, which I submit it does, then the ALJ’s
decision must be affirmed.
II.
The majority asserts that it was error for the ALJ to discredit the
expert opinions of Drs. Renn, Morgan, Fino, and Kleinerman "solely
because they were ‘able to draw a conclusion as to what is not the
cause of claimant’s IPF when they cannot even give an opinion as to
the cause of this disease.’" Ante, at *5. This assertion is not entirely
accurate. A review of the record reveals that the ALJ did not discredit
the opinions of Drs. Renn, Morgan, Fino, and Kleinerman solely
1
In the BRB’s second opinion, it affirmed in part the ALJ’s discredit-
ing of Drs. Naeye and Spagnolo, but vacated the weight accorded by the
ALJ to the opinions of Drs. Renn, Fino, and Morgan. Consequently, the
BRB vacated the ALJ’s order and remanded for further proceedings.
(J.A. 536, 538.)
CONSOLIDATION COAL COMPANY v. LATUSEK 9
because they could not determine the etiology of Latusek’s disability,
even though they were certain it was not attributable to coal dust
exposure. Rather, in the ALJ’s third decision and order, he finds "Dr.
Jennings [sic] and Roses’s credentials regarding IPF [to be] superior
to the credentials of Drs. Kleinerman, Renn, Morgan, and Fino, and
accord their opinion great weight."2 (J.A. 541.)
The law instructs that, particularly in black lung cases, the ALJ "is
not bound to accept the opinion or theory of any medical expert."
Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997).
Rather, it is the ALJ’s responsibility to "evaluate the evidence, weigh
it, and draw his own conclusion." Id. The ALJ reviewed and weighed
the evidence in this case not once, but three times, and on each occa-
sion, the ALJ concluded that Latusek was entitled to black lung bene-
fits. In reviewing the ALJ’s conclusions, "[w]e must sustain the ALJ’s
decision, even if we disagree with it, provided the determination is
supported by substantial evidence. . . ." Smith v. Chater, 99 F.3d 635,
637-38 (4th Cir. 1996). A review of the physicians’ respective qualifi-
cations reveals that the ALJ’s decision to accord greater weight to the
opinions of Drs. Jennings and Rose was supported by substantial evi-
dence.
Dr. Cecil Rose, one of Latusek’s treating physicians, is "board cer-
tified in internal medicine, pulmonary diseases, and occupational
medicine." (J.A. 527.) Moreover, she is employed at the National
Jewish Center ("NJC"), which is a premier institution treating intersti-
tial pulmonary fibrosis. Additionally, Dr. Rose is a member of the
Committee on Pneumoconiosis for the American College of Radiol-
ogy and the Chair of the Committee for the Association of Occupa-
tional and Environmental Clinics. (J.A. 233.) She was also a certified
"B" reader for chest x-rays.3 During her deposition, Dr. Rose esti-
mated that throughout her career she has evaluated approximately
2
In its final opinion, the BRB specifically affirmed the ALJ’s decision
to accord more weight to Drs. Jennings and Rose. In particular, the BRB
held that, "[b]ecause the administrative law judge acted within his discre-
tion in finding the opinions of Drs. Jennings and Rose to be credible, we
reject employer’s allegation of error." (J.A. 547.)
3
Dr. Rose subsequently decided not to seek recertification, because she
"didn’t want to keep reading the films." (J.A. 234.)
10 CONSOLIDATION COAL COMPANY v. LATUSEK
more than one hundred patients for coal worker’s pneumoconiosis
("CWP") and other coal mine dust-related diseases. (J.A. 234-235.)
She also evaluated Latusek on several occasions, beginning in 1993,
when she documented his occupational history. Undoubtedly, Dr.
Rose has considerable experience in diagnosing and treating CWP.
Given Dr. Rose’s credentials and experience, there was substantial
evidence in the record to support the ALJ’s decision to rely upon her
diagnosis of CWP and her conclusion that Latusek’s condition was
caused by his occupational exposure.
Likewise, substantial evidence supports the ALJ’s determination
that the opinion of Dr. Constance Jennings was credible. Dr. Jennings
is also a staff member of the NJC, and she is board certified in inter-
nal medicine, pulmonary diseases, and critical care medicine. Addi-
tionally, Dr. Jennings is the Clinical Director of the Interstitial Lung
Disease Laboratory at the NJC, (J.A. 528), and an assistant professor
with the University of Colorado Medical School, where her primary
teaching responsibility is in the area of interstitial lung diseases. (J.A.
285-86.) Before joining the NJC, Dr. Jennings was a staff member at
the National Institute of Health ("NIH") for two years, where she
worked exclusively in the area of interstitial lung diseases. (J.A. 286.)
Since joining the NJC, her primary focus has been on interstitial lung
diseases. Id. During her deposition, Dr. Jennings testified that she has
evaluated and/or treated approximately 50 to 100 patients at the NJC
"who have worked in and about coal mines who have an interstitial-
type lung disease." (J.A. 289.) Further adding to Dr. Jennings’s cre-
dentials is the fact that she has published several articles on IPF.
On the other hand, the following doctors each testified that the eti-
ology of Latusek’s disability was unknown, despite having positively
concluded that it was not related to coal dust exposure. Dr. Kleiner-
man, the former Director of the Department of Pathology at the Metro
Health Campus of Case Western Reserve University, (J.A. 339),
never examined Latusek, but he reviewed his medical records and
biopsy slides and concluded "with reasonable medical certainty" that
Latusek’s lung disease "can not be attributed to coaldust [sic] expo-
sure or simple coalworkers [sic] pneumoconiosis." (J.A. 57.) Addi-
tionally, Dr. Kleinerman is not board certified in internal medicine or
pulmonary diseases, and he is not a certified "B" reader because he
has never taken the necessary examination. (J.A. 344.)
CONSOLIDATION COAL COMPANY v. LATUSEK 11
Dr. W.K.C. Morgan is also not board certified in pulmonary dis-
eases or internal medicine. (J.A. 530). He is a fellow of the Royal
College of Physicians of Edinburgh, "which he testified is somewhat
equivalent to U.S. board certification, although he was not required
to take any medical boards." Id. (emphasis added.) Dr. Morgan
reviewed Latusek’s medical records and submitted a report, wherein
he stated that Latusek had "minimal evidence of coal workers’ pneu-
moconiosis" and that he did "not believe that the interstitial fibrosis
present in Mr. Latusek is a result of coal worker’s pneumoconiosis.
. . ." (J.A. 175.)
Dr. Fino is board certified in pulmonary diseases and internal med-
icine, and he is also a certified "B" reader. (J.A. 402.) However,
unlike Dr. Jennings, he has not published any articles relating to coal
workers’ pneumoconiosis. Id. Dr. Fino examined Latusek on August
24, 1995, and later diagnosed him with "simple coal workers’ pneu-
moconiosis" and "an idiopathic interstitial pulmonary fibrosis." (J.A.
184.) Dr. Fino concluded that Latusek has a "significant pulmonary
impairment characterized by progressive restrictive lung disease
which has worsened significantly since 1990." Id. Despite this conclu-
sion, Dr. Fino ultimately opined that Latusek’s "impairment and dis-
ability would be present had he never stepped foot in the coal mines."
(J.A. 186.)
Dr. Renn is board certified in internal medicine and the subspe-
cialty of pulmonary diseases. He is also a certified "B" reader of x-
rays. He treated Latusek over the course of three years, from April 14,
1992 through April 25, 1995. (J.A. 501.) Dr. Renn ordered Latusek’s
first lung biopsy, which was performed in June 1992. (J.A. 499.) Dr.
Renn diagnosed interstitial pulmonary fibrosis ("IPF"). (J.A. 501.) Dr.
Renn regularly sees and treats patients with CWP, which is why
Latusek was referred to him. However, the ALJ noted that Dr. Renn
"explicitly stated in his deposition that he referred claimant to the
National Jewish Center because his treatment plan was not working
and because of the Center’s expertise in treating patients with IPF."
(J.A. 541) (emphasis added.)
Drs. Rose and Jennings relied on the following clinical findings to
reach their conclusions that Latusek’s condition was related to coal
dust exposure: (1) the unusually early onset of the disease in Latusek,
12 CONSOLIDATION COAL COMPANY v. LATUSEK
who was only 39 years old, (2) his heavy exposure to silicates or coal
mine dust, (3) a finding of pneumoconiosis combined with his expo-
sure, (4) the presence of emphysema in a non-smoker, (5) the unusual
nature of Latusek’s IPF lesion, and (6) the abnormally elevated cell
count in his lungs, which indicated the presence of an irritant in the
lung. Clearly, there was more than a mere scintilla of evidence sup-
porting Drs. Rose’s and Jennings’s conclusion that Latusek’s IPF was
caused by his coal dust exposure. Accordingly, the ALJ’s decision to
give greater credence to the opinions of Drs. Jennings and Rose was
appropriate.
III.
Next, the majority holds that there was substantial evidence to con-
clude that Drs. Jennings and Rose relied upon on the "flawed" articles
in determining that Latusek’s disability was related to coal dust expo-
sure. Ante, at *6. I respectfully disagree. Dr. Rose testified in her
deposition that "[t]here’s enormous uncertainty about th[e] relation-
ship [between CWP and IPF], but there is data emerging to suggest
that there may be a relationship between exposure to occupational
dust with the subsequent development of pneumoconiosis. . . ." (J.A.
244.) Although acknowledging the research, Dr. Rose stated that she
did not "wish to ignore the uncertainty associated with [her] opinion,"
(J.A. 245), but she ultimately concluded as follows:
it is my opinion, to a reasonable probability, that in Mr.
Latusek’s case, given the atypical nature and presentation of
his lesion and given his history of coal mine dust exposure
and the associated finding of simple coal worker’s pneumo-
coniosis with emphysema, that the two [Latusek’s work
exposure and his condition] are related, and that his occupa-
tional exposure to coal mine dust probably did have an asso-
ciation with his subsequent development of his IPF-type
condition.
(J.A. 246).
Likewise, Dr. Jennings also testified in her deposition about the
increasing amount of research being done regarding the connection
between exposure to silicates and IPF. (J.A. 303-308.) However,
CONSOLIDATION COAL COMPANY v. LATUSEK 13
when asked how she was able to link Latusek’s disease to his coal
mine employment, Dr. Jennings replied:
there’s probably a number of pieces of evidence that could
be used to support the contention that his disease is due to
the silicates. First we have discussed, one, his age; secondly,
would be his heavy exposure, which just based on history of
quite an extensive exposure involving a lot of drilling and
long wall exposure. Thirdly, would be the histologic evi-
dence . . . [which] demonstrates silicates exposure with find-
ings compatible with simple coal worker’s pneumoconiosis
and silicate deposition. There is evidence of injury to the
small airways. There’s evidence of emphysema in a non-
smoker. . . . And finally, in the areas of peripheral fibrosis,
even in the areas of honeycomb, silicate deposits are seen
within the areas of honeycomb, strongly indicating silicates
in the pathogenesis of the fibrotic process.
(J.A. 309-310.) Based upon Drs. Jennings’s and Rose’s deposition
testimony, it is clear that they did not rely solely on the three related
articles to determine that Latusek’s condition was caused by his coal
dust exposure. The majority incorrectly determines that substantial
evidence supports a conclusion that Latusek’s physicians relied upon
the "flawed" articles. In fact, a review of the record reveals the oppo-
site conclusion; the physicians merely acknowledged the research
being done to support a connection between IPF and CWP. Despite
acknowledging this growing area of research, their conclusions were
based primarily upon Latusek’s medical, histologic, and employment
background, rather than on the articles. Accordingly, I disagree with
the majority’s conclusion on this issue.
IV.
In sum, I believe there was substantial evidence in the record to
support the ALJ’s factual findings that Drs. Jennings’s and Rose’s
opinions were entitled to more weight than the opinions of Drs. Renn,
Morgan, Fino, and Kleinerman. Likewise, the ALJ’s factual finding
that Consol’s experts were less experienced in IPF is supported by
substantial evidence. Therefore, while the majority may have reached
a different conclusion after reviewing the record de novo, we should
14 CONSOLIDATION COAL COMPANY v. LATUSEK
not disturb the ALJ’s factual findings under the substantial evidence
standard. Accordingly, I maintain that the ALJ’s decision should be
upheld.