Cannelton Industries, Inc. v. Frye , 93 F. App'x 551 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CANNELTON INDUSTRIES, 
INCORPORATED,
Petitioner,
v.
WILLIAM H. FRYE; DIRECTOR,  No. 03-1232
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(98-693-BLA; 00-132-BLA; 02-299-BLA)
Argued: January 22, 2004
Decided: April 5, 2004
Before WILKINS, Chief Judge, and WIDENER and
MICHAEL, Circuit Judges.
Petition denied by unpublished per curiam opinion.
COUNSEL
ARGUED: Paul Edwin Frampton, BOWLES, RICE, MCDAVID,
GRAFF & LOVE, P.L.L.C., Charleston, West Virginia, for Petitioner.
S. F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West
Virginia, for Respondents. ON BRIEF: Susan W. Coffindaffer,
2 CANNELTON INDUSTRIES v. FRYE
BOWLES, RICE, MCDAVID, GRAFF & LOVE, P.L.L.C., Charles-
ton, West Virginia, for Petitioner.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Cannelton Industries, Inc. (Cannelton) petitions for review of a
decision by the Benefits Review Board affirming an ALJ’s award of
benefits to William Frye under the Black Lung Benefits Act, 30
U.S.C. § 901 et seq. Because the ALJ committed no legal errors and
because his decision is supported by substantial evidence, we deny
the petition for review.
I.
William Frye worked as a welder for Cannelton, a coal mining
company, for nearly thirty years. As a welder, Frye repaired mining
machinery both underground and on the surface. He stopped working
for Cannelton in January of 1980 after suffering a heart attack. Frye
smoked five packs of cigarettes a week from 1944 to 1966.
Frye applied for federal black lung benefits for the first time in
1980. A claims examiner denied benefits in 1981 and Frye did not
appeal the decision. Frye applied again in 1996 and requested an
administrative hearing. Cannelton and Frye both appeared at the hear-
ing and submitted evidence. On January 15, 1998, an Administrative
Law Judge (ALJ) issued a 23-page opinion awarding Frye benefits.
Cannelton appealed the award and the Benefits Review Board (BRB
or Board) remanded the case to the ALJ, directing him to reconsider
the medical opinion of Dr. Fino. On remand the ALJ reinstated Frye’s
benefits, but thereafter the BRB remanded the case a second time in
light of an intervening opinion by our court that addressed the proper
CANNELTON INDUSTRIES v. FRYE 3
method for weighing evidence under 20 C.F.R. § 718.202(a). See
Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000).
The ALJ began his third decision by considering the x-ray evi-
dence, which consisted of eleven chest x-rays that had been read a
total of twenty-one times by eleven physicians. Frye’s most recent x-
ray was read positive for pneumoconiosis by three physicians and
negative by one physician. The seventeen readings of older x-rays
were all negative. However, most of these readings showed a profu-
sion level of 0/1, which, although negative for pneumoconiosis, indi-
cates some coal dust retention in the lungs. Based on these findings,
the ALJ concluded that "the preponderance of the more probative
chest x-ray evidence supports a finding of pneumoconiosis." J.A. 238.
The ALJ also found that two CT chest scans conducted by Dr. Abra-
mowitz were "tangentially supportive of a finding of pneumoconio-
sis." J.A. 245.
The ALJ next considered the conflicting medical reports of five
physicians, only four of which are relevant here. Dr. Forehand exam-
ined Frye in 1995 and did not find any evidence of pneumoconiosis.
Although a blood gas study revealed that Frye was totally disabled
from hypoxemia, Dr. Forehand concluded that this pulmonary impair-
ment was caused by smoking-induced bronchitis. Dr. Zaldivar, who
examined Frye in 1996, found that Frye was suffering from asthma,
coronary artery disease, and possibly cancer. Dr. Zaldivar adminis-
tered his own blood gas study which, in contradiction to Dr. Fore-
hand’s study, indicated that Frye was not totally disabled by a
pulmonary impairment. Dr. Zaldivar concluded that there was no evi-
dence of pneumoconiosis. Dr. Fino did not examine Frye but
reviewed his medical records. Dr. Fino concluded that Frye did not
have pneumoconiosis. He based his diagnosis primarily on the nega-
tive x-ray evidence and on the improvement shown between Frye’s
1995 blood gas study (conducted by Dr. Forehand) and his 1996
blood gas study (conducted by Dr. Zaldivar). Dr. Fino reasoned that
this improvement was inconsistent with black lung, which is a pro-
gressive disease. Dr. Rasmussen reviewed the medical reports of Drs.
Forehand and Zaldivar and the evaluations of the most recent chest
x-ray. Dr. Rasmussen concluded that Frye was totally disabled and
that coal mine dust was the most important factor in his impairment.
4 CANNELTON INDUSTRIES v. FRYE
The ALJ credited the opinion of Dr. Rasmussen, discredited the
opinions of Drs. Forehand, Zaldivar, and Fino, and concluded that
Frye had established the existence of pneumoconiosis by a preponder-
ance of the physician opinion evidence. In light of Island Creek Coal
the ALJ then weighed all of the relevant evidence together and ruled
that Frye qualified for black lung benefits. On January 23, 2003, over
five years after the ALJ’s initial award of benefits, the BRB affirmed.
Cannelton petitions for review.
II.
In order to obtain federal black lung benefits, a claimant must
prove by a preponderance of the evidence that: (1) he has pneumoco-
niosis; (2) the pneumoconiosis arose out of his coal mine employ-
ment; (3) he has a totally disabling respiratory or pulmonary
condition; and (4) pneumoconiosis is a contributing cause to his total
respiratory disability. Island Creek Coal, 211 F.3d at 207. Cannelton
argues that the ALJ and the BRB erred in concluding that Frye satis-
fied the first and fourth elements of his claim. On the first element,
the company argues that the ALJ erred in: (1) weighing the x-ray evi-
dence; (2) weighing the CT chest scan evidence; (3) crediting the
opinion evidence of Dr. Rasmussen over Drs. Forehand, Zaldivar, and
Fino as to whether Frye had pneumoconiosis. On the fourth element,
the company argues that the ALJ erred in discrediting the opinions of
Drs. Fino, Forehand, and Zaldivar as to whether pneumoconiosis was
a contributing cause of Frye’s respiratory disability.
We review the ALJ’s application of the law de novo but we must
affirm factual findings if they are supported by substantial evidence.
Thorn v. Itmann Coal Co., 3 F.3d 713, 718 (4th Cir. 1993).
A.
We turn first to the x-ray evidence. Cannelton alleges that the ALJ
committed four separate errors in analyzing the x-ray evidence,
including: (1) treating negative chest x-rays as evidence of pneumo-
coniosis; (2) finding board certified radiologists to be better qualified
to read x-rays than non-radiologist physicians; (3) assuming Frye’s
disease had progressed without citing any medical expert testimony
CANNELTON INDUSTRIES v. FRYE 5
to that effect; (4) erroneously employing the "later is better rule." We
find no error in the ALJ’s analysis.
1.
We begin our discussion by conducting a more detailed review of
the x-ray evidence presented in this case. The parties submitted
twenty-one interpretations of eleven different x-rays. The ALJ ini-
tially concluded that two negative interpretations of an x-ray taken in
1981 were not probative based on their age. The ALJ then considered
fifteen interpretations of nine different x-rays taken between 1988 and
1996. Although all fifteen of these interpretations were negative for
pneumoconiosis, eleven were categorized as 0/1 and only four were
read as 0/0. A 0/1 classification is "officially ‘negative’ for clinical
pneumoconiosis but indicates the presence of some opacities, too few
in number to constitute category 1 pneumoconiosis." N. LeRoy Lapp,
A Lawyer’s Medical Guide to Black Lung Litigation, 83 W. Va. Law
Rev. 721, 729-30 (1981). Each of the physicians who classified their
readings as 0/1 noted that Frye’s x-ray showed abnormalities consis-
tent with pneumoconiosis and indicated the presence of opacities in
some or most zones of Frye’s lungs. J.A. 205 n.5. The ALJ found the
eleven 0/1 readings, which were all conducted by radiologists, more
probative than the 0/0 readings, which were conducted by non-
radiologists, whom the ALJ considered to be less qualified. The ALJ
concluded that "the substantial preponderance of the x-ray evidence
through 1996 shows the presence of opacities. While they are not suf-
ficient in number to yield a positive interpretation for pneumoconio-
sis, this consistent interpretation . . . sets the foundation for the second
factor." J.A. 238. The ALJ then considered four interpretations of the
most recent chest x-ray, three of which were positive for pneumoconi-
osis. The single negative reading was again conducted by a lesser
qualified non-radiologist. The ALJ concluded that:
The weight of the more qualified medical authority leads to
the determination that the March 17, 1997 x-ray is positive
for pneumoconiosis. Then, in light of the fact that the x-ray
history from 1988 through 1996 showed the existence of
opacities and considering the progressive nature of pneumo-
coniosis, I find the positive March 1997 x-ray demonstrates
that Mr. Frye has developed the black lung disease.
6 CANNELTON INDUSTRIES v. FRYE
J.A. 238.
2.
Cannelton first argues that the ALJ’s analysis directly violated 20
C.F.R. § 718.102(b), which states that "a 0/1 . . . classification does
not constitute evidence of pneumoconiosis." The ALJ would have
committed clear error if he had concluded that the 0/1 readings them-
selves demonstrated that Frye had pneumoconiosis. However, in this
case the ALJ specifically recognized that although the 0/1 readings
"show[ed] the presence of opacities . . . they [were] not sufficient in
number to yield a positive interpretation for pneumoconiosis." J.A.
238. Therefore it cannot be said that he used the 0/1 readings as evi-
dence of pneumoconiosis. Rather, he used the readings to weigh the
reliability of the later positive readings. Because there were some
opacities in the lung in the readings taken between 1988 and 1996,
and because black lung is a progressive disease, the ALJ ruled that
"the positive March 1997 x-ray demonstrates that Mr. Frye has devel-
oped the black lung disease." J.A. 238. The Board has concluded on
multiple occasions that this analysis is appropriate, see, e.g., Delung
v. Milburn Colliery Co., BRB No. 02-0124; Frye v. Cannelton Indus-
tries, Inc., BRB No. 98-0693, and we agree that it is.
Cannelton next argues that it was error for the ALJ to accord
greater weight to the x-ray interpretations conducted by radiologists
over interpretations offered by other types of physicians because "the
record contains no medical opinion that a board certified radiologist
. . . has better qualifications than [other types of specialists]." Petition-
er’s Brief at 22. This argument has little merit. The black lung regula-
tions state that "where two or more X-ray reports are in conflict, in
evaluating such X-ray reports consideration shall be given to the
radiological qualifications of the physicians interpreting the X-rays."
20 C.F.R. § 718.202(a)(1). A radiologist is a "specialist in the use of
. . . x-rays . . . in the diagnosis or treatment of disease." Webster’s
Third New International Dictionary 1873 (1993). Thus, by definition,
a radiologist is more qualified in the practice of reading x-rays than
other types of specialists. The regulations recognize this by giving
special deference to the opinions of radiologists. For example, 20
C.F.R. § 718.102(c) states that "if the physician interpreting the film
is a Board-certified or Board-eligible radiologist . . . he or she shall
CANNELTON INDUSTRIES v. FRYE 7
so indicate." See also 20 C.F.R. § 718.202(a)(1)(i) ("A Board-
certified . . . radiologist’s interpretation of a chest x-ray shall be
accepted by the Office if . . . such x-ray has been taken by a radiolo-
gist."); 20 C.F.R. § 718.102(e). The ALJ committed no error in treat-
ing radiologists as more qualified in reading x-rays than other types
of physicians. See, e.g., Zeigler Coal Co. v. Kelley, 112 F.3d 839,
842-43 (7th Cir. 1997) (affirming award of benefits where "the ALJ
. . . explained that, pursuant to Benefits Review Board precedent, he
credited the x-ray reading made by Dr. Brandon, a board certified
radiologist and B-reader, over the reading made by Dr. Renn, who
although a B-reader, is not certified in radiology").
Cannelton also argues that the ALJ erred by finding that Frye’s dis-
ease had progressed without citing to any medical testimony support-
ing that finding. This argument "ignores the assumption of
progressivity that underlies much of the statutory regime." E. Associ-
ated Coal Corp. v. Director, O.W.C.P., 220 F.3d 250, 258 (4th Cir.
2000). The regulations specifically state that "‘pneumoconiosis’ is
recognized as a latent and progressive disease." 20 C.F.R.
§ 718.201(c). In this case, the ALJ inferred that Frye’s condition had
progressed because his latest x-ray was positive for pneumoconiosis
and earlier x-rays showed the presence of opacities that were consis-
tent with pneumoconiosis, but too few in number to qualify as a posi-
tive diagnosis. As stated by the Seventh Circuit, "once [the claimant]
introduced the [later positive x-ray], he had put before the ALJ con-
crete evidence that his simple pneumoconiosis had progressed." Pea-
body Coal Co. v. Spese, 117 F.3d 1001, 1009 (7th Cir. 1997).
Furthermore, if we accepted Cannelton’s argument on this issue,
we would effectively be abandoning the "later is better rule," which
allows ALJs to discount old test results or physical examinations in
favor of subsequent results that reveal deterioration of the miner’s
condition. The rationale of the rule is that "pneumoconiosis is a pro-
gressive disease . . . therefore, a later test or exam is a more reliable
indicator of the miner’s condition than an earlier one." Adkins v.
Director, O.W.C.P., 958 F.2d 49, 51 (4th Cir. 1992). Under Cannel-
ton’s argument, the rule, which takes progressivity as a given, could
only be applied if a "physician . . . provided an opinion that progres-
sion had occurred" in the specific case being examined. Petitioner’s
Brief at 23. The "later is better" rule has been endorsed by the
8 CANNELTON INDUSTRIES v. FRYE
Supreme Court, Mullins Coal Co., Inc. of Va. v. Director, O.W.C.P.,
484 U.S. 135, 151-52 (1987), and repeatedly upheld by this circuit,
see E. Associated Coal, 220 F.3d at 258-59. We are bound by these
decisions, and we therefore reject Cannelton’s argument.
Finally, Cannelton argues that the "later is better rule" should not
have been applied in this case because only five months passed
between the taking of the latest negative x-ray and the most recent
positive x-ray. Our circuit has recognized that in certain situations "a
bare appeal to ‘recency’ is an abdication of rational decisionmaking."
Thorn, 3 F.3d at 718 (rule improperly applied where five physicians
examined claimant in five month period and ALJ based recentness on
when reports were prepared rather than when examinations occurred).
See also Adkins, 958 F.2d at 52 (where later evidence indicates that
claimant’s condition has improved, rule’s logic "simply cannot
apply"). However, in this case the rule "was not imposed mechani-
cally or arbitrarily, but was applied in the context of a record in which
the later x-rays were not inconsistent with the earlier ones." E. Associ-
ated Coal, 220 F.3d at 259. Furthermore, in this case it is not even
clear that the ALJ employed the "later is better rule." Typically, the
rule is used to discredit the accuracy of older x-rays in light of later
x-rays. The ALJ did not do that in this case. Instead, he found that the
later positive x-rays were especially reliable because the earlier x-
rays, although negative, consistently demonstrated opacities in the
lung. As stated by the Benefits Review Board, "the administrative law
judge’s finding that the trend of the x-ray evidence showed the devel-
opment of pneumoconiosis is not irrational in light of the references
to the presence of opacities consistent with pneumoconiosis in the x
ray reports classified as 0/1 and the progressive nature of pneumoco-
niosis." J.A. 205. In the circumstances presented, we find no error in
the ALJ’s analysis.
B.
Cannelton’s second argument is that the ALJ erred in his treatment
of two CT chest scans conducted by Dr. Abramowitz. Dr. Abra-
mowitz concluded that a 1996 CT chest scan of Frye showed evi-
dence of a "nonspecific interstitial lung disease." J.A. 244. When Dr.
Abramowitz looked at a second CT scan taken in 1997, he found a
"generalized increase in interstitial markings throughout the lung."
CANNELTON INDUSTRIES v. FRYE 9
J.A. 244. The ALJ ruled that these findings were "tangentially sup-
portive of a finding of pneumoconiosis." J.A. 245. Cannelton alleges
that the ALJ "substitut[ed] his own medical opinion for that of the
physician" because Dr. Abramowitz never said that the scans showed
pneumoconiosis. Petitioner’s Brief at 30. We disagree.
The ALJ did not state that the CT chest scans demonstrated the
presence of pneumoconiosis. He merely stated that the scans were
"tangentially supportive" of a finding of pneumoconiosis. Pneumoco-
niosis is a type of interstitial lung disease. See, e.g., Doss v. Director,
O.W.C.P., 53 F.3d 654, 656 (4th Cir. 1995). "Tangential" is defined
as "touching lightly or in the most tenuous way." Webster’s Third
New International Dictionary 2337 (1993). Therefore, we take the
ALJ’s comments to mean that because the CT chest scans showed
some type of interstitial disease, of which pneumoconiosis is an
example, they were consistent with a diagnosis of pneumoconiosis.
Furthermore, the ALJ surmised that the increased interstitial markings
shown on the later scan supported a finding that Frye’s pulmonary
condition had grown worse. This is a reasonable interpretation of the
evidence that the ALJ, as factfinder, was entitled to make.
C.
Cannelton next argues that the ALJ erred in determining the exis-
tence of pneumoconiosis when he discredited the medical opinions of
Drs. Forehand, Zaldivar, and Fino and credited the opinion of Dr.
Rasmussen. Because the ALJ’s determinations were supported by
substantial evidence, we find no error. "In reviewing this material, we
note that it is the province of the ALJ to evaluate the physicians’
opinions. As trier of fact, the ALJ is not bound to accept the opinion
or theory of any medical expert." Island Creek Coal, 211 F.3d at 211(citations omitted). Furthermore, a court need not address every argu-
ment that the ALJ erred in discrediting a physician’s opinion. It need
only determine that "that there was sufficient factual basis to support
one reason for discrediting each opinion." Id. at 213 n.13. With those
principles in mind, we turn to the physician opinions.
1. Dr. Forehand.
The ALJ discredited Dr. Forehand’s assessment on the existence of
pneumoconiosis because he focused only on medical rather than legal
10 CANNELTON INDUSTRIES v. FRYE
pneumoconiosis. Medical pneumoconiosis is "a particular disease of
the lung generally characterized by certain opacities appearing on a
chest x-ray." Id. at 210. Legal pneumoconiosis encompasses a much
broader category of diseases, including "any chronic pulmonary dis-
ease resulting in respiratory or pulmonary impairment significantly
related to or substantially aggravated by, dust exposure in coal mine
employment." 20 C.F.R. § 718.201(b). As our circuit has said:
A medical diagnosis finding no coal workers’ pneumoconio-
sis is not equivalent to a legal finding of no pneumoconiosis
. . . . Evidence that does not establish medical pneumoconio-
sis, e.g., an x-ray read as negative for coal workers’ pneu-
moconiosis, should not necessarily be treated as evidence
weighing against a finding of legal pneumoconiosis.
Island Creek Coal, 211 F.3d at 210. Dr. Forehand concluded that
although Frye was suffering from a totally disabling form of bronchi-
tis, Frye’s negative chest x-rays, coupled with Frye’s history of ciga-
rette smoking, established that the bronchitis was due solely to
cigarette smoke. The ALJ ruled that "Dr. Forehand reached that con-
clusion without explaining how he eliminated Mr. Frye’s nearly thirty
years of exposure to coal mine dust as a possible cause of Mr. Frye’s
bronchitis." J.A. 247. In other words, Dr. Forehand erred by assuming
that the negative x-rays necessarily ruled out the possibility that his
bronchitis was caused by coal mine dust, which would constitute a
form of legal pneumoconiosis. The ALJ’s decision was a direct appli-
cation of the principles cited above and supported by facts in the
record. The ALJ committed no error in discrediting Dr. Forehand’s
opinion.
2. Dr. Zaldivar.
The ALJ discredited Dr. Zaldivar’s opinion, in part because he
"went to great lengths to alter the meaning of test results that didn’t
support his decision." J.A. 246. Dr. Zaldivar concluded that Frye was
not totally disabled by a pulmonary condition. In his deposition, Dr.
Zaldivar was asked to explain the 1995 blood gas test conducted by
Dr. Forehand that, under the applicable regulations, indicated that
Frye was totally disabled. Dr. Zaldivar stated that "the blood gases
obtained by [Dr. Forehand] are not disabling anyway, and would
CANNELTON INDUSTRIES v. FRYE 11
allow [Frye] to perform arduous labor." J.A. 243. Dr. Zaldivar went
on to explain that although "a p02 in the 60s is not normal at sea level
. . . Dr. Forehand’s tests [were conducted at] . . . 2000 feet above sea
level, and at that point the p02 is normal." J.A. 100-01. Both of these
statements plainly contradict federal regulations. Under the table con-
tained in Appendix C of 20 C.F.R. § 718, Frye’s 1995 blood gas study
results indicate that he is presumed to be totally disabled. J.A. 239
n.21-22. Yet Dr. Zaldivar’s comments show that he presumed just the
opposite. The federal regulations also demonstrate that an elevation
of 2000 feet does not affect the results of a blood gas study. See 20
C.F.R. § 718, Appendix C (noting that "A miner who meets the fol-
lowing medical specification shall be found to be totally disabled . . .
(1) For arterial blood gas studies performed at test sites up to 2,999
feet above sea level . . .) (emphasis added). Because Zaldivar’s analy-
sis disregarded the plain language of the regulations, there is "a suffi-
cient factual basis to support one reason for discrediting [Zaldivar’s]
opinion." Island Creek Coal, 211 F.3d at 213 n.13.
3. Dr. Fino.
The ALJ discounted the opinion of Dr. Fino because he used an
unreliable 1996 blood gas study to "explain away the possibility of
pneumoconiosis." J.A. 246. The 1996 blood gas study, which was
conducted by Dr. Zaldivar, showed an improvement in Frye’s condi-
tion compared to the 1995 blood gas study conducted by Dr. Fore-
hand. Fino reasoned that because the two studies indicated that Frye’s
pulmonary condition had improved, and because black lung is pro-
gressive in nature, Frye could not have pneumoconiosis. However, the
ALJ discredited Dr. Zaldivar’s 1996 blood gas test in favor of Dr.
Forehand’s 1995 study because Dr. Zaldivar’s test did not conform to
the requirements of 20 C.F.R. § 718.105. J.A. 239-40. The regulations
in place at the time of the 1996 blood gas study stated that "any report
of a blood gas study submitted in connection with a claim shall spec-
ify . . . (2) Altitude . . . at which the test was conducted; . . . (8) Pulse
rate at the time the blood sample was drawn; . . . (10) Whether equip-
ment was calibrated before and after each test." 20 C.F.R. § 718.105(1995). Dr. Zaldivar’s test failed to include each of these items.
Therefore, the ALJ discredited Dr. Fino’s report because it was based,
in part, on Dr. Zaldivar’s non-conforming blood gas study.
12 CANNELTON INDUSTRIES v. FRYE
Cannelton argues that the ALJ erred in rejecting the 1996 test
based solely on the fact that it did not conform to 20 C.F.R.
§ 718.105. Cannelton contends that the standards listed in the regula-
tions "should be used as guidelines by the ALJ . . . but are not manda-
tory." Petitioner’s Brief at 39. This argument is in tension with the
plain language of the regulations, which state that arterial blood gas
test results "shall specify" certain information. 20 C.F.R. § 718.105(1995) (emphasis added). There is also evidence in the federal register
that casts doubt on Cannelton’s position. In comments accompanying
the federal regulations, the Department of Labor stated that "the
Department is of the opinion that the reporting requirements listed in
the regulations constitute the minimum requirements necessary in
order to ascertain the validity of the tests conducted." Director,
O.W.C.P. v. Mangifest, 826 F.2d 1318, 1327 n.16 (3d Cir. 1987) (cit-
ing 45 Fed.Reg. 13682 (1980)). Even if we assume that Cannelton’s
statement of the law is correct, the ALJ still did not err in this case.
The ALJ essentially looked to the requirements in § 718.105 to deter-
mine the weight that he should assign to two conflicting medical tests.
Because the 1996 blood gas study did not conform to the regulations,
he deemed it less probative than the 1995 blood gas study. At the very
least, the quality standards embodied in § 718.105 identify the types
of information that are indicative of a reliable arterial blood gas test.
We find it entirely reasonable for an ALJ, as trier of fact, to discount
medical tests that lack the quality indicators listed in the federal regu-
lations. See id. at 1326 (noting that 20 C.F.R. § 718.206 "delegate[s]
discretion to the ALJ to determine the weight to which a doctor’s
opinion is entitled under all the facts of the case"). Likewise, it is rea-
sonable for an ALJ to discount opinions that are themselves premised
on discredited medical tests. This weighing of the evidence falls
within the province of the ALJ. We conclude that there was substan-
tial evidence to discredit Dr. Fino’s medical opinion.
4. Dr. Rasmussen.
The ALJ concluded that Dr. Rasmussen’s opinion was well rea-
soned. Cannelton disagrees, arguing that Dr. Rasmussen’s report was
not well reasoned because he "does not list or make any mention of
the arterial blood gas test of 1996." Petitioner’s Brief at 43. However,
as we just stated, the ALJ reasonably discredited the 1996 blood gas
test. The failure of a physician to consider or reference a non-
CANNELTON INDUSTRIES v. FRYE 13
probative medical test does not mean his report was poorly reasoned.
It was therefore appropriate for the ALJ to credit Dr. Rasmussen’s
report.
D.
Cannelton’s fourth argument is that the ALJ erred in determining
that Frye’s total disability was caused by pneumoconiosis because the
ALJ improperly discredited the opinions of Drs. Fino, Forehand, and
Zaldivar on the issue of causation. We disagree.
The ALJ ruled that "[Dr. Fino’s and Dr. Forehand’s] opinions on
whether pneumoconiosis contributed to Mr. Frye’s total disability
carry little probative weight" because "[they both] concluded Mr.
Frye did not have pneumoconiosis." J.A. 248. Our circuit has held
that when a physician fails to diagnose pneumoconiosis, an ALJ may
properly discount that physician’s opinion on causation if it is "prem-
ised . . . on an erroneous finding contrary to the ALJ’s conclusion."
Island Creek Coal, 211 F.3d at 213. As we explained above, Dr. Fino
concluded that Frye’s condition could not have been caused by pneu-
moconiosis, which is permanent and progressive, because Frye’s pul-
monary disability improved between the 1995 arterial blood gas test
and the 1996 blood gas test. However, the ALJ rejected the probative
value of the 1996 test. Therefore, Dr. Fino’s causation analysis, which
relied on the 1996 test, was "irreconcilable with the ALJ’s findings."
Id. at 214. Meanwhile, Dr. Forehand concluded that Frye’s pulmonary
condition was not caused by pneumoconiosis because his chest x-rays
were negative. But the ALJ concluded the radiological evidence was
positive. Thus, Dr. Forehand’s causation analysis was clearly "prem-
ised . . . on an erroneous finding contrary to the ALJ’s conclusion."
Id. at 213.
The ALJ discredited Dr. Zaldivar’s causation opinion because Dr.
Zaldivar "opined Mr. Frye did not have a total respiratory disability,"
J.A. 248, and because "he also did not find Mr. Frye totally disabled
by a respiratory impairment," J.A. 248 n.41. Cannelton argues that
degree of respiratory impairment and cause of impairment are two
separate things. In other words, Dr. Zaldivar’s finding that Frye was
not totally disabled by a pulmonary impairment does not necessarily
undermine his findings as to what was causing the non-disabling con-
14 CANNELTON INDUSTRIES v. FRYE
dition. This argument does not meet the ALJ’s decision head-on. The
ALJ stated that Dr. Zaldivar did not find a total respiratory disability
and did not find Frye to be totally disabled. Thus, Dr. Zaldivar mis-
diagnosed the type of respiratory disability and the level of Frye’s dis-
ability. Cannelton’s argument only goes to the level of disability.
Because Dr. Zaldivar does not believe Frye has a total respiratory dis-
ability, he, in effect, has no opinion on what caused the total respira-
tory disability, and therefore his causation analysis is worthy of little
weight. The ALJ’s reasoning was sufficient to discredit Dr. Zaldivar’s
causation analysis.
III.
We agree with the Benefits Review Board that the ALJ made no
error of law, that his findings of fact are supported by substantial evi-
dence in the record as a whole, and that William Frye qualifies for
black lung benefits. Accordingly, we deny Cannelton Industries’ peti-
tion for review.
PETITION DENIED