Westmoreland Coal Co v. Russell ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WESTMORELAND COAL COMPANY,
INCORPORATED,
Petitioner,
v.
No. 99-1411
GERNADE RUSSELL; DIRECTOR,
OFFICEOF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENTOF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(98-0236-BLA)
Submitted: June 9, 2000
Decided: June 28, 2000
Before LUTTIG, MOTZ, and KING, Circuit Judges.
_________________________________________________________________
Vacated and remanded by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Douglas A. Smoot, Kathy L. Synder, JACKSON & KELLY,
P.L.L.C., Morgantown, West Virginia, for Petitioner. William C. Gar-
rett, Gassaway, West Virginia; Henry L. Solano, Solicitor of Labor,
Donald S. Shire, Associate Solicitor, Patricia M. Nece, Counsel for
Appellate Litigation, Barry H. Joyner, Office of the Solicitor,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Westmoreland Coal Company ("employer") petitions for review of
a decision of the Benefits Review Board ("Board") affirming an
administrative law judge's ("ALJ") decision to award black lung ben-
efits to Gernade Russell. In September of last year, we placed this
case in abeyance pending our decision in Island Creek Coal Co. v.
Compton, 211 F.3d 203 (4th Cir. 2000). We recently issued a decision
in that case, making this case ripe for review.
Following a lengthy procedural history, the ALJ ultimately found
that while the x-ray evidence of record was insufficient to establish
pneumoconiosis pursuant to 20 C.F.R. § 718.202(a)(1) (1999), Rus-
sell nonetheless established the critical element of pneumoconiosis,
see Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1195 (4th Cir. 1995)
(stating critical elements of a black lung claim), based solely on the
medical opinion evidence of record pursuant to § 718.202(a)(4). In
Compton, we held that "all relevant evidence is to be considered
together rather than merely within discrete subsections of
§ 718.202(a)." Id. at 208. Because the ALJ weighed only like-kind
evidence against each other in this case, rather than weighing all evi-
dence relevant to the existence of pneumoconiosis together, we vacate
the Board's decision and remand for further remand to the ALJ so that
he may reweigh the evidence under § 718.202(a), consistently with
Compton.
Employer further contends that the ALJ committed numerous
errors in weighing the medical opinion evidence in this case. The ALJ
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found pneumoconiosis solely on the basis of Dr. Rasmussen's opin-
ion, rejecting numerous reports submitted by the employer opining
that the miner suffered from neither the clinical nor the "legal" form
of pneumoconiosis. See 20 C.F.R. § 718.201 (1999). We disagree
with employer's view that Dr. Rasmussen's finding of pneumoconio-
sis should have been discredited on the ground that it was based
entirely on discredited x-ray evidence. The record discloses that while
Dr. Rasmussen relied on another physician's positive x-ray interpreta-
tion in his initial report to find the existence of pneumoconiosis, he
subsequently clarified in his deposition testimony that he also
believed the miner's lung disease to be related to his coal dust expo-
sure, at least in part, and that x-ray evidence would not change his
opinion on this point. Dr. Rasmussen also explained how laboratory
tests and his physical findings supported his opinion. Hence, it is clear
that Dr. Rasmussen's finding of legal pneumoconiosis was not, as
employer contends, predicated on discredited x-ray evidence.
We also reject employer's suggestion that the opinions of its physi-
cians must be accorded greater weight because they possess superior
credentials to Dr. Rasmussen. The ALJ carefully considered the cre-
dentials of the physicians of record, and rationally found that Dr. Ras-
mussen qualified as an expert in the field of pulmonary diseases
despite lacking board certification in that area, as he was board certi-
fied in internal medicine, was board eligible in pulmonary diseases,
and had devoted his practice to treating patients with pulmonary dis-
ease. While we have held that ALJs err by failing to factor the qualifi-
cation of physicians into their analysis of the reliability of their
opinions, see Milburn Colliery Co. v. Hicks, 138 F.3d 524, 536 (4th
Cir. 1998), this is not a case where such error occurred.
We agree with employer, however, and the Director, Office of
Workers' Compensation Programs ("Director"), that the ALJ commit-
ted some errors in weighing the medical opinion evidence. On
remand, the ALJ should be mindful that Dr. Crisalli last examined the
miner, rather than Dr. Rasmussen, as he found. Further, if he is to rely
on Dr. Rasmussen's citation to medical literature as a ground for cred-
iting his opinion, he should, consistent with his obligation to consider
all relevant evidence, also consider employer's evidence tending to
undercut the positions taken in the literature on which Dr. Rasmussen
relied. See id. at 532-33. Similarly, when reconsidering the medical
3
reports, the ALJ should specifically discuss his reasons for crediting
or rejecting the reports of Drs. Kress, Fino, and Renn, whose reports
the ALJ mentioned but did not weigh below.
If the ALJ again finds pneumoconiosis, it is not necessary, as
employer asserts, for him to revisit the issue of whether the miner's
total disability was "due to" pneumoconiosis. The errors discussed do
not taint the ALJ's causation finding. Rather, the ALJ's causation
finding is only tainted if the ALJ ultimately finds no pneumoconiosis,
in which case benefits will be denied in any event.
Accordingly, the decision and order of the Board is vacated and the
claim is remanded to the Board for further remand to the ALJ for fur-
ther proceedings consistent with this opinion. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
VACATED AND REMANDED WITH INSTRUCTIONS
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