Consolidation Coal v. Latusek ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CONSOLIDATION COAL COMPANY,
Petitioner,
v.
THEODORE M. LATUSEK, JR.;
No. 98-2336
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(97-1454-BLA)
Argued: May 5, 1999
Decided: August 6, 1999
Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished opinion. Judge Williams wrote
the majority opinion, in which Judge Luttig joined. Judge Murnaghan
wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: William Steele Mattingly, JACKSON & KELLY, Mor-
gantown, West Virginia, for Petitioner. Sue Anne Howard, Wheeling,
West Virginia, for Respondents. ON BRIEF: Kathy L. Snyder,
JACKSON & KELLY, Morgantown, West Virginia, for Petitioner.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
Theodore Latusek, Jr., filed a claim against Consolidation Coal
Company (CCC) seeking compensation under the Black Lung Bene-
fits Act, 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 1999). After
a formal hearing on February 25, 1997, the Administrative Law Judge
(ALJ) awarded benefits to Latusek. On appeal, the Benefits Review
Board (the Board) affirmed the ALJ's decision. CCC now appeals to
us. Because we conclude that the ALJ failed adequately to explain the
reasons for crediting certain medical opinions to the exclusion of oth-
ers, we must vacate and remand the decision for further consideration.
I.
Theodore Latusek, Jr., worked in the coal mines of West Virginia
for approximately twenty-four years, all of it with CCC. During his
long 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 and particularly while he served as a long wall
operations coordinator.
Latusek underwent a routine physical examination at age forty. The
exam disclosed "some pulmonary problems," and Latusek began a
long series of referrals and examinations by various physicians. (J.A.
at 499.) Latusek's first treating physician, Dr. Roger Abrahams, diag-
nosed possible early interstitial fibrosis. Latusek then consulted Dr.
Joseph Renn, III, a pulmonary specialist. Upon initial examination,
Dr. Renn diagnosed Latusek with "interstitial pulmonary fibrosis
(IPF), also known as usual interstitial pneumonitis (UIP)."1 (J.A. at
_________________________________________________________________
1 As several doctors explained in the record before us, IPF and UIP
were different terms for the same pulmonary disease. For ease of refer-
ence we will simply refer to the condition as IPF.
2
501.) Latusek then underwent a lung biopsy and an analysis by Dr.
James A. Waldron of the National Jewish Center for Immunology and
Respiratory Medicine (the National Jewish Center), who found evi-
dence of IPF and coal workers' pneumoconiosis.
Latusek next was evaluated by Dr. Cecile Rose, a staff physician
at the National Jewish Center who is board certified in internal medi-
cine, pulmonary diseases, and occupational medicine. Dr. Rose again
confirmed the diagnosis of coal workers' pneumoconiosis and IPF.
Another physician at National Jewish Center, Dr. Constance Jennings,
who serves as the Clinical Director of the Interstitial Lung Disease
Laboratory at the National Jewish Center, also examined Latusek and
eventually concluded that he suffered from "diffuse interstitial fibro-
sis" related to coal workers' pneumoconiosis. (J.A. at 502.) Because
Dr. Jennings believed that the IPF was "related to" Latusek's work in
the coal mines, she suggested that Latusek cease working there. (J.A.
at 45.) Following that advice, Latusek retired on April 30, 1994.
Following his retirement, two other physicians examined Latusek
-- Dr. P.V. Devabhaktuni, a specialist in pulmonary and critical care
medicine, and Dr. Gregory Fino, a specialist in internal medicine and
pulmonary diseases. Both physicians diagnosed Latusek with IPF, and
Dr. Fino also noticed the presence of coal workers' pneumoconiosis.
Several other physicians reviewed the medical evidence and offered
opinions on Latusek's condition, including: Dr. Jerome Kleinerman,
a pathologist with expertise in coal workers' pneumoconiosis, Dr.
W.K.C. Morgan, an expert in occupational lung diseases, Dr. Koichi
Honma, a pathology specialist with the Dokkyo University School of
Medicine in Japan, Dr. Richard L. Naeye, Chairman of the Pathology
Department of Pennsylvania State University College of Medicine,
and Dr. Samuel V. Spagnolo, a pulmonary specialist and professor at
the George Washington School of Medicine and Health Care Sci-
ences. Each of these physicians either diagnosed Latusek with mild
coal workers' pneumoconiosis and/or IPF.
In all, at least twelve physicians either treated, examined, or
reviewed Latusek's condition. Based on their opinions and as CCC
admits, Latusek has at least a mild case of coal miners' pneumoconio-
sis and a totally disabling pulmonary condition. The physicians who
3
concluded that Latusek is totally disabled, however, attributed his dis-
ability to IPF, not coal workers' pneumoconiosis.
After reviewing the exhaustive medical evidence, the ALJ con-
cluded that Latusek's "IPF arose out of his coal mine employment and
that he is totally disabled due to pneumoconiosis," and accordingly,
awarded Latusek benefits. (J.A. at 507.) The Board affirmed the
ALJ's decision, concluding that it was "supported by substantial evi-
dence, [was] rational, and [was] in accordance with applicable law."
(J.A. at 509.) CCC now appeals the decision to us.
II.
"The findings of fact in the decision under review by the Board
shall be conclusive if supported by substantial evidence in the record
considered as a whole." 33 U.S.C.A. § 921(b)(3) (West 1986) (as
incorporated by 30 U.S.C.A. § 932(a) (West 1986)); see also Wilson
v. Benefits Review Bd., 748 F.2d 198, 199-200 (4th Cir. 1984). "We
review the Board's decision to determine whether it committed an
error of law and whether it adhered to its scope of review." Marx v.
Director, OWCP, 870 F.2d 114, 118 (3d Cir. 1989). This duty
requires an independent review of the record to determine whether the
decision was supported by substantial evidence. See id. Substantial
evidence is more than a scintilla and is such evidence that a reason-
able mind would accept to support a conclusion. See NLRB v. Colum-
bian Enameling & Stamping Co., 306 U.S. 292, 300 (1939);
Richardson v. Perales, 402 U.S. 389, 401 (1971)."In determining
whether substantial evidence supports the ALJ's factual determina-
tions, we must first address whether all of the relevant evidence has
been analyzed and whether the ALJ has sufficiently explained his
rationale in crediting certain evidence." Milburn Colliery Co. v.
Hicks, 138 F.3d 524, 528 (4th Cir. 1998).
In order to establish a right to benefits under the Black Lung Bene-
fits Act, 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 1999), "a
claimant must prove that (1) he has pneumoconiosis; (2) the pneumo-
coniosis arose out of his coal mine employment; (3) he has a totally
disabling respiratory or pulmonary condition; and (4) pneumoconiosis
is a contributing cause to his total respiratory disability." Milburn
Colliery Co., 138 F.3d at 529 (emphasis added) (citing 20 C.F.R.
4
§§ 718.201-.204 (1997)).2 Because CCC admits that Latusek has a
totally disabling pulmonary condition, the only remaining question is
whether "pneumoconiosis is a contributing cause to his total respira-
tory disability."
CCC contends that substantial evidence does not support the link
between the total respiratory disability and Latusek's employment as
a coal miner. Specifically, CCC argues that IPF is not caused by the
inhalation of dust and cannot therefore be considered pneumoconio-
sis. See 20 C.F.R. § 718.201 (1998) ("[P]neumoconiosis means a
chronic dust disease of the lung and its sequelae, including respiratory
and pulmonary impairments, arising out of coal mine employment.").
At a minimum, however, CCC contends that the ALJ failed to prop-
erly analyze and explain why certain medical opinions were credited
over others.
"Before we can determine whether substantial evidence supports an
administrative determination, we must first ascertain whether the
agency has discharged its duty to consider all relevant evidence."
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439 (4th Cir.
1997) (internal quotation marks omitted). An integral part of review-
ing the record is performing an analysis of conflicting medical opin-
ions to determine which should be credited. See Milburn Colliery Co.,
138 F.3d at 529; Lane v. Union Carbide Corp., 105 F.3d 166, 171
(4th Cir. 1997). Because medical opinions often involve highly tech-
nical matters unfamiliar to an ALJ or a court, a case frequently turns
upon which opinions are given greater weight. We have, therefore,
provided guidelines for weighing medical testimony.
Two of these guidelines are particularly relevant to this case. First,
we require that the ALJ carefully scrutinize the comparative quality
of medical opinions. See Milburn Colliery Co. , 138 F.3d at 533. Sec-
ond, we require that the ALJ give sufficient reason for crediting an
opinion, but also for discrediting an opinion. See id._________________________________________________________________
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).
5
As a threshold matter, we note that at least two treating doctors, Dr.
Jennings and Dr. Rose, and one reviewing doctor, Dr. Honma, con-
cluded that Latusek's IPF was due to his employment in the coal
mines and related dust inhalation.3 Standing alone, this diagnosis
would be enough to support a conclusion that the etiology of
Latusek's IPF could be traced to his exposure to dust in the coal
mines and thus satisfy Latusek's burden to prove his claim. Yet the
record contains a great deal more information. Drs. Jennings, Rose
and Honma were only three of twelve physicians that either treated,
examined, or reviewed Latusek's condition. Three of the remaining
physicians -- Drs. Abrahams, Devabhaktuni, and Waldron -- were
unable to draw any firm conclusion regarding the origins of IPF. Six
physicians -- Drs. Fino, Kleinerman, Morgan, Naeye, Renn, and
Spagnolo -- concluded that IPF was not related to Latusek's exposure
to dust as a coal miner. These contrary opinions, standing alone, also
would constitute substantial evidence. See Stiltner v. Island Creek
Coal Co., 86 F.3d 337, 343 (4th Cir. 1996) ("Indeed, the five opinions
challenged here constitute substantial evidence in support of the
denial of benefits because they rule out coal mine employment as a
contributing factor to Stiltner's total disability .. . ."). Although we
do not advocate counting the votes of various medical experts to
reach a conclusion, the vast majority of experts who weighed in on
the etiology of Latusek's disability opposed the ALJ's finding. See
Sterling Smokeless Coal, 131 F.3d at 440-41 (noting that it is imper-
missible to draw a conclusion solely because the majority of physi-
cians support it). We believe that such a disparity of opinion merits
attention.
In his decision, the ALJ gave two reasons for crediting Dr. Jen-
nings's and Dr. Rose's opinions. First, he noted that Dr. Jennings is
a specialist in IPF and has published articles on the subject. Second,
he cited three published articles supporting their hypothesis regarding
the link between IPF and coal dust exposure. Dr. Jennings's expertise
is an important factor and should be given due weight.4 The support
provided by the articles, however, is rather weak.
_________________________________________________________________
3 Dr. Rose's opinion was, however, equivocal. Although she indicated
that "to a reasonable probability" Latusek's IPF sprang from his work in
the coal mines, she also observed that there was"enormous uncertainty"
regarding the link between IPF and dust exposure. (J.A. at 244, 246.)
4 We note the dissent's enthusiasm for Dr. Jennings's credentials,
which we believe are substantial, but not "indisputably superior to those
6
First, despite the ALJ's determination that the articles were written
by "reputable physicians," there is no evidence in the record regarding
the reputation of the authors of two of the three articles. Second, the
ALJ's reliance on the fact that the articles were published and sub-
jected to some amount of peer review does not indicate that they were
necessarily reliable. Cf. Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 593 (1993) ("Publication (which is but one ele-
ment of peer review) is not a sine qua non of admissibility; it does
not necessarily correlate with reliability . . . ."). Third, the substance
of the articles does not strongly endorse the link between IPF and dust
exposure. Instead, one of the articles reports a study that finds the
incidence of IPF in coal workers to be the same as that within the gen-
eral population and concludes only that there was a"possible" link
between coal mining and IPF. (J.A. at 158.) Another article reported
findings from a study that included only three coal workers out of 233
cases studied. Finally, several of the physicians who reviewed the
articles found them to be severely lacking in appropriate sampling
methods, indicating that the articles did not enjoy general acceptance
within the relevant scientific community. Cf. Daubert, 509 U.S. at
594.
At best, the articles offered tepid support for Dr. Jennings's, Dr.
Rose's, and the ALJ's conclusion. According to the ALJ's decision,
the articles were credited solely because of their publication and
related peer review. In the face of significant expert criticism, this
alone is insufficient. Moreover, the ALJ's opinion offered no reasons
for discrediting the criticisms of several well-qualified physicians. We
_________________________________________________________________
of the other physicians of record." (Post at 13.) For instance, Dr. Jerome
Kleinerman has served as the Director of the Department of Pathology
at the Metro Campus of Case Western Reserve University, has chaired
the National Institute 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, pneu-
moconiosis, or emphysema. Dr. Kleinerman is board certified in clinical
pathology and pathologic anatomy. In addition, Dr. Kleinerman under-
took graduate studies in human pulmonary function at the University of
Pennsylvania Graduate School of Medicine following his graduation
from medical school.
7
find the criticisms quite credible, especially without any evidence of
a thorough analysis by the ALJ. It is precisely the ALJ's familiarity
with, and analysis of, a subject that deserves our deference and with-
out it, we have difficulty relying upon the decision.
Furthermore, and most troubling, the sole reason offered by the
ALJ for discrediting the opinions of Drs. Kleinerman, Renn, Morgan,
and Fino was that "they were unable to cite any medical articles find-
ing that there was no causal connection between IPF and coal dust
exposure." (J.A. at 507.)5 Therefore, the ALJ refuted their opinions
based on a lack of published support. Considering the combined expe-
rience and credentials of these physicians compared to the thin sup-
port provided by the countervailing articles, we find this appraisal
wholly unsatisfactory.6
III.
Because we believe that the ALJ did not fulfill his duty to fully
consider the entire record and provide adequate reasons for discount-
ing significant expert medical testimony, we vacate and remand the
case for further consideration.
VACATED AND REMANDED
_________________________________________________________________
5 Although the dissent spends a great deal of time explaining the evi-
dence that supports the award of benefits, it does not sufficiently address
the primary deficiency -- that the ALJ failed to adequately explain why
the opinions of several eminently qualified experts were discounted. We
trust that after remand and further consideration, the ALJ's expertise in
this area will result in a thorough explanation of his reasoning and even-
tual decision.
6 This Court has recognized a number of these physicians' credentials
in other black lung cases. See, e.g., Piney Mountain Coal Co. v. Mays,
1999 WL 274066 at *6 (4th Cir. May 5, 1999) (Dr. Kleinerman);
Milburn Colliery Co. v. Hicks, 138 F.3d 524, 530 (4th Cir. 1998) (Dr.
Fino); Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 n.2 (4th
Cir. 1997) (Dr. Kleinerman); Stiltner v. Island Creek Coal Co., 86 F.3d
337, 340 (4th Cir. 1996) (Dr. Renn).
8
MURNAGHAN, Circuit Judge, dissenting:
Theodore Latusek filed an application seeking disability benefits
under the Black Lung Benefits Act, 30 U.S.C.A. §§ 901-945 (West
1986 & Supp. 1999), for a pulmonary disability suffered as a result
of his employment as a coal miner for Consolidation Coal Company
("Consolidation"). The administrative law judge ("ALJ") awarded
benefits to Latusek, and the Black Lung Benefits Review Board
affirmed the award. Consolidation now appeals, arguing primarily
that the administrative law judge failed to analyze properly the rele-
vant medical evidence. Because there is substantial evidence in the
record supporting the decisions of the ALJ and the Benefits Review
Board, I dissent from the majority opinion and vote to affirm.
I.
Theodore Latusek, Jr., Respondent-Claimant, was employed as an
underground coal miner for a period of 24 years by Petitioner, Con-
solidation Coal Company, during which time he was exposed to large
amounts of mine dust including coal, solid rock and sandstone. Dur-
ing a work-related physical examination, Latusek's lung condition
was first noticed by the company physician who indicated that
Latusek had some pulmonary problems. In 1991, Latusek was exam-
ined by Dr. Roger Abrahams who observed dense Velcro rales in
Latusek's lungs, a dry cough, mild wheezing, and dyspnea on exer-
tion. Dr. Abrahams diagnosed Latusek with possible early interstitial
fibrosis. He concluded that Latusek's cough might be due to industrial
bronchitis or interstitial changes.
Latusek was later referred to Dr. Joseph Renn, III, who assumed
care of the patient in 1992. Dr. Renn ordered a lung biopsy and subse-
quently diagnosed Latusek as suffering from interstitial pulmonary
fibrosis ("IPF") and coal worker's pneumoconiosis. Dr. Renn pre-
scribed Prednisone and later Cytoxan, but Latusek's condition contin-
ued to deteriorate. Dr. Renn then referred the patient to the National
Jewish Center for Immunology and Respiratory Medicine ("National
Jewish") in Denver, Colorado, one of the best known centers for the
study of interstitial pulmonary fibrosis. At the facility, Latusek was
treated by Dr. Constance Jennings in October 1993. Following her
initial evaluation of Latusek, she instituted Solu-Medrol therapy and
9
recommended that he be removed from further exposure to coal mine
dust. The patient was also evaluated at National Jewish by Dr. Cecile
Rose, an occupational medicine physician, who diagnosed coal work-
er's pneumoconiosis and idiopathic pulmonary fibrosis. Based upon
the advice of Dr. Jennings, Latusek ceased exposure to coal mine dust
and took a disability retirement effective April 30, 1994. While he
remains a candidate for lung transplant, Latusek's condition has since
stabilized.
On July 5, 1994, Latusek filed a claim for federal black lung bene-
fits. His claim was initially denied by a claims examiner; however,
benefits were awarded by the district director on May 12, 1995. Con-
solidation requested a formal ALJ hearing on that determination.
During the course of litigation, several physicians were deposed,
including Drs. Jennings and Rose. Dr. Jennings testified that
Latusek's IPF arose as a result of the patient's exposure to silicate
dust in the coal mines. In pertinent part, she testified that, in studies
of more than 350 patients conducted at National Jewish, the median
age of individuals prone to develop IPF is 66 years, with 90 percent
of the patients being 50 years or older. Dr. Jennings stated that the
researchers "almost never" saw a patient in his 30s, suggesting that
Latusek's age at the onset of his IPF, 39 years, is highly unusual. Dr.
Jennings further testified that, in addition to the unusually early age
of onset, other factors suggest that Latusek's condition is linked to his
work in the coal mines: his heavy exposure to silicates, or coal mine
dust; the finding of simple coal worker's pneumoconiosis in combina-
tion with that exposure; evidence of emphysema in a non-smoker; and
an unusually elevated cell count in his lungs, evidencing the presence
of some irritant in the lungs.
Dr. Rose's testimony supported the conclusions of Dr. Jennings.
She acknowledged that "the lesion of [IPF] in the context of coal
worker's pneumoconiosis may not be common" but maintained that
"given the atypical nature and presentation of[Latusek's] IPF lesion
... his history of coal mine dust exposure and the associated finding
of simple coal worker's pneumoconiosis with emphysema," Latusek's
development of IPF was associated with his occupational dust expo-
sure to a degree of reasonable medical probability.
10
The conclusions of Drs. Jennings and Rose are further supported
by the findings of Dr. Koichi Honma of the Department of Pathology,
Dokkyo University School of Medicine in Japan, who is recognized
as having extensive experience in silicosis-induced lung disease. Dur-
ing Latusek's course of treatment at National Jewish, Dr. Jennings
contacted Dr. Honma. Dr. Honma reviewed the biopsy slides and
issued a report to Dr. Jennings which concluded that the interstitial
fibrosis seen in the patient represented a dust-related disorder.
On June 26, 1997, the ALJ issued a decision awarding benefits to
Latusek. On review, the Benefits Review Board affirmed the award.
Consolidation now appeals, arguing primarily that the ALJ failed to
analyze properly the relevant medical evidence. I disagree with Con-
solidation's contention and, contrary to the majority's position, would
affirm the award of benefits to Mr. Latusek.
II.
In considering decisions of the Benefits Review Board, we "`re-
view only for errors of law, and to make certain that the Board
adhered to its statutory standard of review of factual determinations.'"
Doss v. Director, OWCP, 53 F.3d 654, 658 (4th Cir. 1995). The Court
of Appeals must affirm the Benefits Review Board"if [the Board]
properly determined that the [administrative law judge's] findings are
supported by substantial evidence, keeping in mind that `a reviewing
body may not set aside an inference merely because it finds the oppo-
site conclusion more reasonable or because it questions the factual
basis.'" Doss, 53 F.3d at 659; see also Dehue Coal Co. v. Ballard, 65
F.3d 1189, 1195 (4th Cir. 1995) (noting that appellate court "must
affirm the ALJ's factual findings and weighing of the medical evi-
dence where these conclusions ... are supported by substantial evi-
dence"); Tackett v. Cargo Mining Co., 12 Black Lung Rep. 1-11
(1988) (en banc) ("The Board must affirm the findings of the adminis-
trative law judge if they are supported by substantial evidence, are
rational, and are in accordance with applicable law."). "Substantial
evidence" requires "`more than a mere scintilla,'" but only "`such rel-
evant evidence as a reasonable mind might accept as adequate to sup-
port a conclusion.'" Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528
(4th Cir. 1998); see also Doss, 53 F.3d at 659 (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971)).
11
In order to establish entitlement to benefits, the claimant must
establish that (1) he suffers from pneumoconiosis; 1 (2) the pneumoco-
niosis arose out of coal mine employment; (3) he has a totally dis-
abling respiratory or pulmonary condition; and (4) the
pneumoconiosis is a contributing cause of his total disability. See 20
C.F.R. §§ 718.201-718.204 (1998); Hicks , 138 F.3d at 529. The par-
ties stipulated at hearing that Latusek suffers from pneumoconiosis
arising out of coal mine employment and that he has a totally dis-
abling pulmonary impairment. Therefore, to establish his claim to
benefits, Latusek need only prove by a preponderance of evidence
that the pneumoconiosis is a contributing cause of his total disability.
See 20 C.F.R. § 718.204(b); Robinson , 914 F.2d at 38. To be a con-
tributing cause, the claimant's coal mining must be"a necessary con-
dition of his disability. If the claimant would have been disabled to
the same degree and by the same time in his life if he had never been
a miner, then benefits should not be awarded." Robinson, 914 F.2d at
38.
As the ALJ noted, all the expert witnesses agree that Latusek's
total disability is due to IPF. The witnesses provided conflicting
assessments, however, as to the cause of the disability. Drs. Rose,
Jennings, and Honma concluded that the IPF is the result of exposure
to coal mine dust, while Drs. Joseph Renn, Gregory Fino, W.K.C.
Morgan, Samuel Spagnolo, Jerome Kleinerman, and Richard Naeye
suggested that there is no basis to link IPF to such exposure. When
physicians provide conflicting opinions as to the etiology of impair-
ment, an ALJ must provide a rationale for choosing one opinion over
another. See Hicks, 138 F.3d at 533 (finding error where ALJ failed
to explain why he credited certain evidence and discredited other evi-
dence). That is precisely what the ALJ did here. He considered and
analyzed all the relevant evidence and then explained his rationale in
_________________________________________________________________
1 The Act defines "pneumoconiosis" as a "chronic dust disease of the
lung and its sequelae, including respiratory and pulmonary impairments,
arising out of coal mine employment." 30 U.S.C.A.§ 902(b); see also 20
C.F.R. § 718.201. As the Fourth Circuit has explained, "this broad defini-
tion `effectively allows for the compensation of miners suffering from a
variety of respiratory problems that may bear a relationship to their
employment in the coal mines.'" Robinson v. Pickands, Mather & Co.,
914 F.2d 35, 39 (4th Cir. 1990).
12
crediting certain evidence and discrediting other evidence. See Hicks,
138 F.3d at 528 ("In determining whether substantial evidence sup-
ports the ALJ's factual determinations, we must first address whether
all of the relevant evidence has been analyzed and whether the ALJ
has sufficiently explained his rationale in crediting certain evi-
dence.").
The judge found that Dr. Jennings' opinion, supported by the opin-
ions of Drs. Rose and Honma, outweighed the other medical testi-
mony and was sufficient to establish that Latusek's coal mine
employment significantly contributed to his total disability. He
detailed Dr. Jennings credentials which, although challenged by Peti-
tioner, are indisputably superior to those of the other physicians of
record.2 While the other, impressively qualified physicians have
treated patients with IPF, Dr. Jennings specializes in interstitial lung
disease. Moreover, it is undisputed that Latusek was referred to
National Jewish, where he came under Dr. Jennings' care, by Dr.
Renn because of the Center's expertise in treating patients with IPF.
Dr. Jennings' superior qualifications were, thus, a proper basis for
crediting her testimony over that of the other physicians. See Hicks,
138 F.3d at 536 (stating that "experts' respective qualifications are
important indicators of the reliability of their opinions").
The ALJ further explained that Dr. Jennings' opinion that
Latusek's IPF was caused by his mine dust exposure is supported by
three medical articles. While Consolidation challenges the research
methods and findings of the articles,3 they were subject to peer
_________________________________________________________________
2 Dr. Jennings attended medical school at the Mayo Clinic in Roches-
ter, Minnesota and performed her internal medicine residency and pul-
monary and critical care fellowship at the Georgetown University
Hospital in Washington, D.C. She was formerly a staff member in the
pulmonary branch of the National Institute of Health for two years,
working exclusively with interstitial lung disease, and is the Clinical
Director of the Interstitial Lung Disease Laboratory at National Jewish.
Dr. Jennings is board certified in internal medicine, pulmonary diseases,
and critical care medicine and has published several articles on IPF.
3 Relying on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), and United States v. Dorsey, 45 F.3d 809, 813 (4th Cir.
1995), cert. denied, 115 S.Ct. 2631 (1995), Consolidation argues that the
13
review, as well as authored by physicians and published in publica-
tions whose reputations have not been questioned. It was absolutely
proper for the ALJ to reference these articles as supportive of the con-
clusion of Drs. Jennings, Rose and Honma and equally appropriate for
the ALJ to credit this combined evidence over contrary opinions.4 We
should not interfere with the ALJ's credibility determinations unless
they are "inherently incredible or patently unreasonable." Cordero v.
Triple A Machine Shop, 580 F.2d 1331, 1335 (9th Cir. 1978), cert.
denied, 440 U.S. 911 (1979)); see also Bartelle v. McLean Trucking
Co., 687 F.2d 34, 35 (4th Cir. 1982) (citing Cordero for same propo-
sition). Here, the ALJ's determination is neither incredible nor unrea-
sonable.
_________________________________________________________________
epidemiological studies relied upon by Drs. Jennings and Rose are scien-
tifically invalid and unreliable. Suffice it to say that Daubert and Dorsey
relate to the admission of evidence before a lay jury and do not apply to
black lung benefits proceedings before an ALJ. See Underwood v. Elkay
Mining, Inc., 105 F.3d 946, 949-50 (4th Cir. 1997) (explaining that
"[b]ecause the ALJ is presumably competent to disregard the evidence
which should be excluded or to discount that evidence which has lesser
probative value, it makes little sense, as a practical matter, for a judge
in that position to apply strict exclusionary rules").
4 As is required under Fourth Circuit law, the ALJ adequately explained
his basis for discrediting certain evidence. In the Decision and Order, he
expressly stated that he accorded Dr. Spagnolo's assessment little weight
"because it does not address the question of whether there is a causal
relationship between IPF and coal mine employment." He further noted
that Dr. Naeye's opinion was "somewhat deficient because he did not
focus on the core issue in this case, but merely stated that claimant has
a chronic inflammatory disorder which did not resemble any occupa-
tional disorder he could recognize." A review of the record suggests that
the ALJ is factually correct on both points. In addition, the ALJ explicitly
indicated that he credited the opinion of Dr. Jennings over that of Drs.
Kleinerman, Renn, Morgan, and Fino because these doctors did not pos-
sess the degree of knowledge and expertise regarding IPF that Dr. Jen-
nings does. As support for his contention, the ALJ cited these doctors'
credentials but highlighted the fact that Dr. Jennings was employed by
"the leading center for the study of IPF [and] ... has published articles on
that disease process." Finally, the ALJ noted that Dr. Jennings' opinion
was supported by both Dr. Rose's testimony and three medical articles.
14
All we have here is a situation where two or three more experts on
one side dispute the findings of two or three fewer experts on the
opposing side. As the majority recognizes, this should not be a game
of counting experts' votes. Rather, the ALJ is charged with hearing
the expert testimony, weighing the nature and quality of the testi-
mony, comparing the relative expertise of the experts, measuring the
support or non-support for a particular proposition in the medical
community, and applying those observations to the specific facts of
the patient's case. The ALJ has discharged his duty properly here, and
we are in turn obliged to do our duty -- namely, affirm a decision that
is supported by substantial evidence.
Given the conclusion of Drs. Jennings, Rose and Honma that
Latusek's disability is due to exposure to coal mine dust, the support-
ing medical literature, Latusek's work history, the unusually early
onset of IPF in Latusek, and the absence of other factors like smoking
that may have caused the condition, the evidence in the record sub-
stantially supports the ALJ's determination that Latusek's disability
was caused by exposure to coal mine dust. Having considered all the
relevant medical evidence of record, the ALJ rendered a decision that
is both rational and consistent with applicable law. It proceeds from
substantial evidence. I would, therefore, affirm the award of benefits
to Latusek.
15