Eastern Associated Coal, LLC v. Wiles , 176 F. App'x 354 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1601
EASTERN ASSOCIATED COAL, LLC,
Petitioner,
versus
PEARL M. WILES; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(03-0240-BLA)
Argued: January 31, 2006 Decided: April 12, 2006
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Petition granted and remanded by unpublished per curiam opinion.
ARGUED: Mark Elliott Solomons, GREENBERG TRAURIG, L.L.P.,
Washington, D.C., for Petitioner. Terry G. Kilgore, WOLFE,
WILLIAMS & RUTHERFORD, Norton, Virginia, for Respondents. ON
BRIEF: Laura Metcoff Klaus, GREENBERG TRAURIG, L.L.P., Washington,
D.C., for Petitioner. Joseph E. Wolfe, Bobby S. Belcher, WOLFE,
WILLIAMS & RUTHERFORD, Norton, Virginia, for Respondent Pearl M.
Wiles.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Pearl Wiles applied for survivor’s benefits under the Black
Lung Benefits Act (the “Act”), 30 U.S.C. §§ 901 et seq., after her
husband, Estil Wiles, died. An Administrative Law Judge (“ALJ”)
awarded benefits to Ms. Wiles, and the Benefits Review Board (the
“Board”) upheld the award. Eastern Associated Coal Corporation
(“Eastern”), Mr. Wiles’ former employer, now petitions for review
of the Board’s decision. For the following reasons, we grant the
petition for review and remand for further proceedings consistent
with this opinion.
I.
Mr. Wiles was a coal miner for thirty-three years and had a
history of heavy smoking. In 1987, an ALJ awarded benefits to Mr.
Wiles after finding that he was totally disabled by pneumoconiosis
arising from his coal mine employment. The Board later affirmed
this decision.
Shortly after Mr. Wiles’ death in 2000, Ms. Wiles filed her
claim for survivor’s benefits. After the Department of Labor
notified Eastern of its belief that Ms. Wiles was entitled to
benefits, the claim proceeded to an ALJ, and the parties agreed to
have a decision made on the record. The record before the ALJ
included the medical opinions of Drs. Emory Robinette and Ben
Branscomb. Dr. Robinette was Mr. Wiles’ treating physician from
2
1985 through November 1999. Dr. Branscomb, an expert retained by
Eastern, reviewed Mr. Wiles’ medical records from 1973 through the
date of death. Although the experts agreed that Mr. Wiles suffered
from chronic obstructive pulmonary disease (“COPD”), they disagreed
as to whether this condition was pneumoconiosis resulting from his
coal dust exposure or an impairment deriving from his history of
heavy smoking. The ALJ gave greater weight to Dr. Robinette’s
records suggesting that Mr. Wiles suffered from pneumoconiosis with
associated obstructive lung disease caused by coal dust exposure
than to Dr. Branscomb’s opinion that Mr. Wiles’ lung disease was
the result of his smoking history and possible prior exposure to
tuberculosis. In making this determination, the ALJ noted that
although Dr. Branscomb’s credentials were superior to those of Dr.
Robinette’s (whose credentials were not in the record), “Dr.
Robinette followed Mr. Wiles for approximately ten years, seeing
him frequently for treatment of his severe pulmonary problems.”
J.A. 15. Further, the ALJ discredited Dr. Branscomb for failing to
cite any publications that discuss tobacco use as the sole or
typical cause of the specific symptoms of COPD exhibited by Mr.
Wiles.
The Board affirmed these determinations and upheld the grant
of survivor’s benefits to Ms. Wiles. Eastern petitioned for review
of the Board’s decision.
3
II.
We review decisions of the Board to determine whether it
properly found that the ALJ’s decision was supported by substantial
evidence and was in accordance with law. See Doss v. Director,
OWCP, 53 F.3d 654, 658 (4th Cir. 1995). In making this
determination, we conduct an independent review of the record to
decide whether the ALJ's findings are supported by substantial
evidence. Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir.
1995). Substantial evidence is more than a mere scintilla of
evidence, but only such evidence that a reasonable mind might
accept as adequate to support a conclusion. Lane v. Union Carbide
Corp., 105 F.3d 166, 170 (4th Cir. 1997). Subject to the
substantial evidence requirement, the ALJ has the sole authority to
make credibility determinations and resolve inconsistencies or
conflicts in the evidence. Grizzle v. Pickands Mather & Co., 994
F.2d 1093, 1096 (4th Cir. 1993). The ALJ, however, may rely only
on a medical opinion that constitutes a reasoned medical judgment.
See Freeman United Coal Mining Co. v. Cooper, 965 F.2d 443, 448
(7th Cir. 1992).
To establish entitlement to black lung benefits as a
qualifying surviving spouse, a claimant must prove that (1) the
miner suffered from pneumoconiosis, (2) the miner’s pneumoconiosis
arose at least in part out of coal mine employment, and (3) that
the miner’s death was due to pneumoconiosis. U.S. Steel Mining Co.
4
v. Director, OWCP, 187 F.3d 384, 388 (4th Cir. 1999) (citing
relevant regulations). A coal miner’s death is considered “due
to” pneumoconiosis if pneumoconiosis was a “substantially
contributing cause” of the miner’s death. See 20 C.F.R. §
718.205(c) (2004). We have interpreted this standard to permit a
finding of causation if a claimant proves that pneumoconiosis
“actually hastened the miner’s death.” Shuff v. Cedar Coal Co.,
967 F.2d 977, 979 (4th Cir. 1992). A claimant may establish the
existence of pneumoconiosis by means of (1) chest x-rays; (2)
biopsy or autopsy evidence; (3) invocation of the presumptions at
20 C.F.R. §§ 718.304 - 718.306; or (4) medical opinion evidence.
See 20 C.F.R. § 718.202(a).
The ALJ determined that Ms. Wiles failed to establish the
existence of pneumoconiosis by x-ray evidence and that there was no
biopsy or autopsy evidence. Because the presumptions of 20 C.F.R.
§§ 718.304 - 718.306 are inapplicable, it is undisputed that the
only basis upon which Ms. Wiles may establish that her husband
suffered from pneumoconiosis is medical opinion evidence pursuant
to 20 C.F.R. § 718.202(a)(4). On appeal, Eastern contends that the
ALJ erred in her consideration of the medical evidence because she
relied on an impermissible preference for the opinion of a treating
physician and erroneously discredited the opinion of Eastern’s
expert.
5
A.
Eastern first argues that the ALJ erred by invoking a
presumption that Dr. Robinette’s opinion as treating physician be
given greater weight than the opinion of Dr. Branscomb. While we
have stated “that as a general matter the opinions of treating and
examining physicians deserve especial consideration,” we have also
clearly stated that “[n]either this circuit nor the Benefits Review
Board has ever fashioned either a requirement or a presumption that
treating or examining physicians’ opinions be given greater weight
than opinions of other expert physicians.” Grizzle, 994 F.2d at
1097; see also Island Creek Coal Co. v. Compton, 211 F.3d 203, 212
(4th Cir. 2000) (“An ALJ may not discredit a physician’s opinion
solely because the physician did not examine the claimant.”). The
Supreme Court has since held as much, albeit in the context of a
case involving an ERISA benefits plan. Black & Decker Disability
Plan v. Nord, 538 U.S. 822, 834 (2003) (“But, we hold, courts have
no warrant to require administrators automatically to accord
special weight to the opinions of a claimant’s physician; nor may
courts impose on plan administrators a discrete burden of
explanation when they credit reliable evidence that conflicts with
a treating physician’s evaluation.”). Because we are unable to
discern from the record whether the ALJ did, in fact, invoke a
presumption that the treating physician’s opinion be given greater
6
weight than other expert opinions, we remand for a reweighing of
the evidence based on the proper legal standard.
B.
Eastern also argues that the ALJ erred in discrediting Dr.
Branscomb’s opinion for failing to cite published material. We
require that the ALJ give sufficient reasons for crediting or
discrediting an expert opinion. Milburn Colliery Co. v. Hicks, 138
F.3d 524, 533 (4th Cir. 1998). Although the ALJ discredited Dr.
Branscomb for failing to cite any publications that discuss tobacco
use as the sole or typical cause of the specific symptoms of COPD
exhibited by Mr. Wiles, the ALJ did not require any published
materials to support Dr. Robinette’s conclusions. Considering the
vast experience and extensive credentials of Dr. Branscomb compared
to the complete absence of any credentials for Dr. Robinette, we
find this appraisal wholly unsatisfactory. See id. at 536 (stating
that “experts’ respective qualifications are important indicators
of the reliability of their opinions”); Adkins v. Director, OWCP,
985 F.2d 49, 52 (4th Cir. 1992) (stating that “a primary method of
evaluating the reliability of an expert’s opinion is of course his
expertise”). Thus, we remand for a reweighing of the conflicting
medical opinions.
7
III.
Finding the ALJ made these errors of law, we conclude that
review of this claim requires a fresh look at the evidence.
Accordingly, we grant the petition for review and direct the Board
to remand to a new ALJ with instructions to review the record for
a determination of whether Ms. Wiles has established entitlement to
survivor’s benefits. See Milburn, 138 F.3d at 537. To determine
whether Ms. Wiles meets her burden, the new ALJ has discretion to
reopen the record.*
PETITION GRANTED AND REMANDED
*
Because of our disposition, we need not address Eastern’s
contention that the ALJ relied upon an inappropriate preference for
the treating physician’s unexplained conclusion that Mr. Wiles’
death was actually hastened by pneumoconiosis.
8