Sewell Coal Company v. Triplett ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1665
SEWELL COAL COMPANY,
Petitioner,
versus
GERALD TRIPLETT; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-0615-BLA)
Argued: September 27, 2007 Decided: November 7, 2007
Before WILKINSON, MOTZ, and GREGORY, Circuit Judges.
Petition denied; Board order affirmed by unpublished per curiam
opinion.
ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C., Morgantown,
West Virginia, for Petitioner. S. F. Raymond Smith, JULIET RUNDLE
& ASSOCIATES, Pineville, West Virginia, for Respondents. ON BRIEF:
Ashley M. Harman, William S. Mattingly, JACKSON & KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following multiple hearings and agency decisions, the Benefits
Review Board of the Department of Labor (“Board”) awarded black
lung benefits to Gerald Triplett on April 26, 2006. On appeal,
Sewell Coal Company (“Sewell”) contends that the Board erred in
affirming the Administrative Law Judge’s (“ALJ”) determinations
regarding the experts’ testimonies and the ALJ’s conclusion that
Triplett had an 18-pack year history1 and that pneumoconiosis
substantially contributed to his disability. For the reasons that
follow, we deny the petition and affirm the Board’s decision.
I.
For thirty-two years, Gerald Triplett worked in coal mines for
Sewell. Before retiring in 1984, Triplett primarily worked
underground as a belt examiner, a job that required him to walk in
coal dust. Triplett smoked cigarettes for several years. Around
1977, he began experiencing shortness of breath. Over time, his
condition deteriorated and his treating physician, Dr. Durham,
diagnosed him as suffering from totally disabling respiratory or
pulmonary impairment.
1
“Pack year” means the number of years during which an
individual has smoked a pack of cigarettes per day. For example,
a person who smokes one pack a day for 10 years has a 10-pack year
history. A person smoking half a pack per day for 10 years has a
5-pack year history.
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On April 1, 1998, Triplett sought benefits under the Black
Lung Benefits Act (“BLBA”) for his disability. Initially, the
District Director denied the claim. However, an ALJ held a hearing
and awarded Triplett benefits. The ALJ found Triplett totally
disabled due to respiratory disease caused, at least in part, by
coal workers’ pneumoconiosis. The ALJ comprehensively reviewed the
medical evidence presented by both parties and the testimony of
Triplett. The medical records and doctors’ opinions were divided
into two groups. One opining that both cigarette smoking and coal
mine dust caused Triplett’s disability and that coal mine dust was
the significant contributing cause, and other opining that
cigarette smoke was the only cause.
Triplett testified that he began smoking a pack or a little
over a pack a day in 1946 and quit in 1964. His testimony
conflicted with several medical records, which stated that he
smoked extensively for twenty-five, twenty-eight, or even over
thirty years. On cross-examination, Triplett conceded that medical
history reports indicating he smoked about one and one-half packs
of cigarettes a day could be accurate. After reviewing this
evidence, the ALJ credited those who believed coal mine dust
substantially contributed to Triplett’s disability and awarded
benefits. Sewell appealed to the Board.
The Board vacated the award and remanded to the ALJ for the
following reasons: (1) to reconsider the evidence; (2) more fully
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explain his weighing of the conflicting medical opinions; (3)
determine the exact length of Triplett’s smoking history; and (4)
explain the weight given to Dr. Durham’s opinion.
On remand, the ALJ again awarded benefits. Specifically, the
ALJ found that Triplett established by a preponderance of the
evidence an 18-pack per year smoking habit ending in 1964; that
even though Triplett’s radiological evidence was negative for
pneumoconiosis, well-reasoned medical opinion supported Triplett’s
claim; and the medical opinions of Drs. Durham and Rasmussen were
generally more reasoned and supported by objective medical evidence
than Sewell’s doctors, Drs. Bellotte and Branscomb, who contended
that cigarette smoking--not pneumoconiosis--was the sole cause of
Triplett’s disability.
Subsequently, the Board vacated the award and remanded to the
ALJ a second time to reconsider the medical opinion evidence and
smoking history. Once again, the ALJ awarded benefits. The Board
affirmed the ALJ’s finding that Triplett had an 18-pack year
smoking history but vacated the award and remanded to the ALJ to
reconsider whether pneumoconiosis caused Triplett’s respiratory
disability.
On the third remand, the ALJ specifically stated that he
attributed more weight to Drs. Durham’s and Rasmussen’s medical
opinions because they were not solely based on the chest x-ray
evidence Drs. Bellotte and Branscomb relied upon. The Board
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affirmed the award of benefits. Sewell filed a timely petition for
review.
II.
We review the Board’s order by “undertak[ing] an independent
review of the record” to determine whether the ALJ’s findings of
fact are supported by substantial evidence. Island Creek Coal Co.
v. Compton, 211 F.3d 203, 207 (4th Cir. 2000). Substantial
evidence consists of more than a scintilla of evidence; “it is
‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. at 208 (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). So
long as the ALJ’s conclusions are supported by substantial
evidence, the ALJ’s decision must be sustained, even if we disagree
with it. Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996).
De novo review applies to the Board’s and ALJ’s legal conclusions.
Compton, 211 F.3d at 208.
III.
Sewell raises four objections to the Board’s affirmation of
the ALJ’s decision. We address each in turn below.
A.
Sewell contends that the ALJ’s finding that Dr. Bellotte’s
medical opinion was contrary to the BLBA is not supported by
substantial evidence. After examining and testing Triplett, Dr.
Bellotte concluded that even though Triplett had significant coal
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mine dust exposure that could cause pneumoconiosis, the medical
evidence indicated he suffered from chronic obstructive pulmonary
disease (“COPD”) with chronic bronchitis, emphysema, old
granulomatous lung disease, chest wall trauma, and asthma. Dr.
Bellote supported his conclusions by citing to Triplette’s x-rays,
blood gas samples, and objectively measured symptoms, which
indicated he had a severe type of disabling chronic obstructive
pulmonary disease brought on by naturally occurring asthma and
cigarette induced lung disease.
The ALJ disagreed with Dr. Bellotte’s opinion that coal
worker’s pneumoconiosis cannot manifest a disabling obstructive
impairment, an opinion which is contrary to the law. Sewell
maintains that the ALJ mischaracterized and improperly discredited
Dr. Bellott’s testimony as hostile to the BLBA.
A physician’s opinion may be discredited when it is based “on
a premise fundamentally at odds with the statutory or regulatory
scheme.” Lane v. Union Carbide Corp., 105 F.3d 166, 173 (4th Cir.
1997). And, it is well-settled that chronic obstructive lung
disease is encompassed in the legal definition of pneumoconiosis.
Thus, the ALJ correctly concluded that an obstructive impairment,
such as COPD, may be considered regulatory pneumoconiosis.
However, Dr. Bellotte only stated that he would not expect a
pneumoconiosis patient to have an obstructive pulmonary impairment
as severe as Triplett’s. He did not state that COPD arising from
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coal mine dust can never be disabling or that as a general rule
coal dust exposure cannot cause disabling obstructive impairment.
“[O]nly the latter assumption would qualify as an opinion
‘antithetical’ to the [BLBA].” Lane, 105 F.3d at 173. To the
contrary, Dr. Bellotte made qualified statements and based his
opinion on Triplett’s specific case--not general assumptions. See
Stilner v. Island Creek Coal, Co., 86 F.3d 337 (4th Cir.1996). The
ALJ improperly discredited Dr. Bellotte’s opinion on this basis.
Notwithstanding this, we do not vacate the ALJ’s award because
the ALJ did not discredit Dr. Bellott’s opinion on this basis
alone. After thoroughly reviewing and considering Dr. Bellotte’s
testimony, the ALJ discredited Dr. Bellotte’s opinion because the
ALJ found that Dr. Bellott’s opinion relied too heavily on x-ray
evidence and pulmonary function studies. The ALJ reasoned that
weighing all the evidence together Dr. Bellotte’s report was
unpersuasive. Given this, the ALJ could rightfully discount Dr.
Bellotte’s opinion.
B.
Sewell also contends that the ALJ’s decision to discredit the
opinion of Dr. Branscomb was irrational and unsupported by
substantial evidence. The ALJ accorded little weight to Dr.
Branscomb’s opinion because it was unreasoned, equivocal, based on
Dr. Bellotte’s report and an inaccurate smoking history, and did
not adequately explain why Triplett’s asthma was unrelated to his
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coal dust exposure or why Triplett’s entire respiratory impairment
is attributable to tobacco use.
When an ALJ explains his or her reasoning and does not rely on
an impermissible basis, we must defer to her or his discretion and
judgment in assessing the conflicts in the evidence. Stilner, 86
F.3d at 342. And “as the trier of fact, the ALJ is not bound to
accept the opinion or theory of any medical expert.” Compton, 211
F.3d at 211. The ALJ need only provide a factual basis to support
his one reason for discrediting an opinion. Id. at 213 n. 13.
Here, Dr. Branscomb failed to provide a reasoned explanation for
why pneumoconiosis is not a contributing factor to Triplett’s
disability; therefore, the ALJ could rightfully discount Dr.
Branscomb’s medical opinion. Similarly, it was within the ALJ’s
province to afford greater weight to Drs. Rasmussen’s and Durham’s
opinions.
C.
Sewell asserts that the ALJ should not credit Dr. Rasmussen’s
opinion because he failed to consider Triplett’s smoking or asthma
as the cause of the disability, based his opinion on medical
journals without explaining their relevance to Triplett’s claim,
and failed to present a theory that meets the minimum scientific
standards for expert testimony under Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993).
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Although Dr. Ramussen did not examine Triplett, he reviewed
Triplett’s x-rays, pulmonary function studies, arterial blood gas
studies, medical records, and Drs. Durham’s and Bellotte’s reports.
Based on this evidence, Dr. Rasmussen concluded that Triplett’s
pulmonary impairment is severe, disabling, and attributable to coal
mine dust exposure. Dr. Rasmussen also noted that coal mine dust
exposure can produce chronic obstructive lung disease including
bronchitis and emphysema. Thus, he explained that it was
completely impossible to exclude coal mine dust exposure as a major
contributing factor to Triplett’s disability. In support, he cited
several medical journals. The ALJ found Dr. Rasmussen’s reasoning
persuasive.
Sewell contends that the ALJ’s finding is unsupported by the
evidence. However, it is clear that Dr. Rasmussen considered
Triplett’s tobacco use and possible asthma as alternative causes of
his disability. The fact that he rejected cigarette smoking and
asthma as the cause of impairment does not discredit his opinion
despite Sewell’s arguments to the contrary. Dr. Rasmussen
reasoned, in part, that Triplett remained exposed to coal mine dust
for nearly twenty years after he quit smoking. We hold that there
is substantial evidence in the record to support the ALJ’s
determination that Dr. Rasmussen’s opinion is well reasoned.
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D.
Sewell maintains that the ALJ should have given Dr. Durham’s
opinion less weight because he lacks extensive experience in
treating black lung cases and offered an equivocal opinion.
Contrary to Sewell’s contentions, Dr. Durham’s opinion was not
equivocal. Dr. Durham stated that he was “pretty certain” of his
diagnosis in response to hypothetical questions posed during his
deposition. (J.A. at 66). The ALJ noted that Dr. Durham made
conditional statements concerning the etiology of Triplett’s
pulmonary disability in response to different hypothetical
situations, assorted cigarette smoking histories, and various
notations from records other than his own. Dr. Durham’s use of
qualified language in this context does not render his opinion
equivocal or unreliable. Although Durham may not have as many
years experience as Dr. Bellotte, this Court has not held that a
physician’s opinion is entitled to less weight or discredited based
on experience alone.
E.
Finally, Sewell asserts that there is insufficient evidence to
support the ALJ’s finding of an 18-pack year smoking history.
According to Sewell, the ALJ did not properly consider
Triplett’s testimony that he could have smoked more than one pack
a day and the significance the distinction would have in diagnosing
the cause of his disability.
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It is the duty of the ALJ to make factual findings, evaluate
the credibility of witnesses, and weigh contradicting evidence.
Doss v. Dir., Office of Worker’s Comp. Programs, 53 F.3d 654, 658
(4th Cir. 1995). When substantial evidence supports the ALJ’s
findings, this Court will not re-weigh the evidence. Id.Triplett testified to smoking at least one pack and possibly
one and one-half packs a day for eighteen years. Several medical
records, however, indicated that he smoked cigarettes for twenty or
more years. The ALJ found that even though Triplett provided
varying amounts for his daily tobacco use, the amounts were not so
grossly disparate as to cause the ALJ to question the credibility
of Triplett's direct testimony. We hold that Triplett's direct
testimony about the length and amount of his daily tobacco use
provided substantial evidence to support the ALJ's finding that
Triplett had an 18-pack year smoking history and we will not
re-weigh the conflicting evidence.2
As Triplett notes, the mere fact that he suffers from
conditions other than pneumoconiosis which can affect his breathing
does not defeat his entitlement to benefits. Pneumoconiosis must
only be a substantially contributing--not the sole--cause of
Triplett’s respiratory disability. 20 C.F.R. 718.204(c)(1)(2006).
2
Even if we were to re-weigh the evidence, Triplett’s
testimony at most indicates a 27-pack year smoking history (one and
one-half a day for 18 years). This remains short of a 30-pack year
history, which Dr. Durham stated is the level at which he would
find it hard to attribute Triplett’s condition to pneumoconiosis.
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And, there is sufficient evidence to establish that pneumoconiosis
is substantially contributing to Triplett’s disability despite his
smoking history.
IV.
We conclude that the ALJ’s determinations were well reasoned
and adequately supported by the evidence in the record and that
there was substantial evidence supporting the ALJ’s conclusion that
pneumoconiosis substantially contributed to Triplett’s disability.
PETITION DENIED;
BOARD ORDER AFFIRMED
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