Island Creek Coal Company v. Denny Marcum ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0436n.06
No. 15-4301
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 29, 2016
ISLAND CREEK COAL COMPANY, ) DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) OF AN ORDER OF THE
) BENEFITS REVIEW BOARD
DENNY MARCUM; DIRECTOR, OFFICE )
OF WORKERS’ COMPENSATION )
PROGRAMS; UNITED STATES ) OPINION
DEPARTMENT OF LABOR, )
)
Respondents. )
)
BEFORE: MOORE, McKEAGUE, and DONALD, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Denny Marcum worked in coal mines for
thirteen years and suspects that he contracted pneumoconiosis during that time. Marcum sought
disability benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., and an
Administrative Law Judge (“ALJ”) found that he was entitled to them because Marcum’s
medical experts, who found that he had pneumoconiosis, were more credible than those put forth
by his former employer, Island Creek Coal Company (“Island Creek”). Island Creek appealed to
the Benefits Review Board (“Board”), which affirmed the award of benefits. Island Creek now
petitions this court for review, but we find that substantial evidence supported the ALJ’s
determination; therefore, we DENY the petition for review.
No. 15-4301
Island Creek Coal Co. v. Marcum
I. BACKGROUND
Denny Marcum began working in coal mines in 1964, when he was seventeen years old.
See Joint Appendix (“JA”) at 240–41 (Hr’g Tr. at 13:24–14:2). He worked in coal mines from
time-to-time between 1964 and 1985. See id. at 241–44 (Hr’g Tr. at 14:6–17:9). Island Creek
was his last coal-mine employer, id. at 243–44 (Hr’g Tr. at 16:2–11, 17:5–14), and Marcum
stopped working for Island Creek because he found that he “just couldn’t breathe hardly,” id. at
244 (Hr’g Tr. at 17:21). Marcum’s breathing remains poor, id. at 244–45 (Hr’g Tr. at 17:22–
18:1), and there is no dispute that he has severe breathing problems that preclude him from
working in a coal mine ever again, id. at 65–66 (First Forehand Dep. at 46:22–47:1); id. at 185(Fino Dep. at 22:4–7); id. at 223 (Jarboe Dep. at 32:21–24). Hotly disputed is whether this
condition stems from pneumoconiosis. Marcum’s medical history—he is a life-long heavy
smoker, id. at 246–47 (Hr’g Tr. at 19:14–20:2); id. at 112–13 (Second Forehand Dep. at 9:22–
10:7), and suffered blood clots in his lungs in 2009, id. at 36 (First Forehand Dep. at 17:4–8)—
provides other potential causes for his pulmonary problems.
After Marcum’s first application for black-lung benefits was denied in 2007, id. at 254(ALJ Op. at 2), he submitted a new application in 2009. See id. at 3–6 (2009 Benefits
Application). The ALJ held a hearing during which Marcum testified and the parties submitted
medical records and depositions, and she subsequently awarded benefits to Marcum in a written
opinion. See id. at 253–86 (ALJ Op.).
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In her opinion, the ALJ weighed competing evidence regarding the length of Marcum’s
coal-mine employment history, finding that he “had at least 14 but less than 15 years of coal
mine employment.” Id. at 258 (ALJ Op. at 6). Because of this finding, Marcum was not eligible
for the statutory presumption that his “totally disabling respiratory or pulmonary impairment”
was “due to pneumoconiosis.” 30 U.S.C. § 921(c)(4). Instead, Marcum needed to show that he
had pneumoconiosis using medical evidence. The ALJ, therefore, thoroughly reviewed the
medical record, which contained numerous x-rays, each of which had been interpreted by
multiple doctors; the results of numerous pulmonary-function and arterial blood-gas tests; and
the medical reports of four doctors. See JA at 259–75, 279–83 (ALJ Op. at 7–23, 27–31).
The ALJ first concluded that the x-rays “failed to establish that [Marcum] has
pneumoconiosis.” Id. at 279 (ALJ Op. at 27). This was so because each x-ray had been
interpreted by at least one doctor to reflect the existence of pneumoconiosis, and by at least one
other doctor not to. See id. at 278–79 (ALJ Op. at 26–27). The ALJ weighed the relative
credentials of each doctor who reviewed a particular x-ray, and credited the interpretation of the
more qualified expert. See id. Where the two sides were equally qualified, the ALJ considered
the x-ray to be inconclusive. Id. As a result, the ALJ found that of the six x-rays in evidence,
“one x-ray is positive, three are negative, and the remaining two are inconclusive,” and that “the
digital x-ray . . . is also inconclusive.” Id. at 279 (ALJ Op. at 27).
The ALJ next discussed the medical opinions of four doctors. See id. at 264–75 (ALJ
Op. at 11–23). Two of those doctors opined that Marcum had pneumoconiosis. Dr. Randolph
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Forehand had examined Marcum three times, and based his diagnosis on these examinations, his
view that the x-rays showed pneumoconiosis, and the results of testing showing that Marcum had
“non-disabling mixed obstructive-restrictive disease, and disabling gas exchange impairment
with exercise.” Id. at 280 (ALJ Op. at 28). Dr. Thomas Splan’s opinion was based on a single
examination of Marcum, during which Dr. Splan also relied in part on a “positive reading of the
digital x-ray” by another doctor. See id. at 281 (ALJ Op. at 29). Dr. Splan’s conclusion was
“that coal dust and cigarette smoking contributed to [Marcum’s] obstructive disease and
pneumoconiosis,” and “that [Marcum’s] history of pulmonary embolism contributed to his
impairment, but to a lesser extent.” Id. The ALJ did not credit the opinions of two other
doctors—Dr. Gregory Fino and Dr. Thomas Jarboe—who found that Marcum did not suffer
from pneumoconiosis because they each attributed the fact that Marcum suffered from poor
arterial blood-gas testing to his smoking and granulomatous scarring, but neither explained why
they had excluded coal dust as a potential contributing factor to the admittedly poor arterial
blood-gas testing. See id. at 281–82 (ALJ Op. at 29–30).
Weighing these four opinions, the ALJ was persuaded by Drs. Forehand and Splan.
Balancing that medical evidence against the inconclusive x-rays, the ALJ concluded that
Marcum “has established that he has pneumoconiosis.” Id. at 283 (ALJ Op. at 31). The ALJ
thus found that Marcum was entitled to benefits. See id. at 285 (ALJ Op. at 32). The Benefits
Review Board affirmed this decision, id. at 289–95 (Board Op.), and Island Creek petitioned this
court for review, see id. at 296–300 (Notice of Appeal).
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II. ANALYSIS
“In reviewing an appeal from the Board, we review the Board’s legal conclusions de
novo.” Big Branch Res., Inc. v. Ogle, 737 F.3d 1063, 1068 (6th Cir. 2013). “To the extent we
must review factual conclusions as well, we do so with much greater deference” and “will affirm
an ALJ’s factual findings when substantial evidence supports those conclusions.” Eastover
Mining Co. v. Williams, 338 F.3d 501, 508 (6th Cir. 2003). “Substantial evidence is more than a
mere scintilla, and must do more than create a suspicion of the existence of the fact to be
established.” Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 756 (4th Cir. 1999) (quoting
NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939)). In assessing the
evidence, we are mindful that the burden of proof lies with the individual seeking benefits. See
Eastover Mining, 338 F.3d at 508. But “[w]e do not reweigh the evidence or substitute our
judgment for that of the ALJ,” Big Branch, 737 F.3d at 1069 (quoting Tenn. Consol. Coal Co. v.
Kirk, 264 F.3d 602, 606 (6th Cir. 2001)), so “we may affirm an ALJ’s decision even though ‘we
would have taken a different view of the evidence were we the trier of facts,’” id. (quoting
Ramey v. Kentland Elkhorn Coal Corp., 755 F.2d 485, 486 (6th Cir. 1985)). When the challenge
is to “whether the ALJ reached the correct result after weighing conflicting medical evidence,
our scope of review is exceedingly narrow,” Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d
244, 246 (6th Cir. 1995) (alteration omitted) (quoting Consolidation Coal Co. v. Worrell, 27 F.3d
227, 230 (6th Cir. 1994)), because “[d]etermining whether a ‘doctor’s report was sufficiently
documented and reasoned is a credibility decision we have expressly left to the ALJ,’” Island
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Creek Ky. Mining v. Ramage, 737 F.3d 1050, 1059 (6th Cir. 2013) (alterations omitted) (quoting
Tenn. Consol. Coal Co. v. Crisp, 866 F.2d 179, 185 (6th Cir. 1989)).
A miner is entitled to benefits if: (1) he “[h]as pneumoconiosis,” (2) “[t]he
pneumoconiosis arose out of coal mine employment,” (3) he “[i]s totally disabled,” and (4) “[t]he
pneumoconiosis contributes to the total disability.” 20 C.F.R. § 725.202(d)(2). The first
factor—the only factor at issue in this appeal, see infra at 12 n.3—may be proven by
demonstrating that the miner has either clinical pneumoconiosis or legal pneumoconiosis. See
Eastover Mining, 338 F.3d at 509; 20 C.F.R. § 718.201(a). Clinical pneumoconiosis includes
“those diseases recognized by the medical community as pneumoconioses,” while legal
pneumoconiosis is a broader concept encompassing lung diseases caused by employment in coal
mines. See 20 C.F.R. § 718.201(a). The existence of pneumoconiosis may be proven by, among
other things, “[a] chest X-ray” or a finding by “a physician, exercising sound medical judgment,
notwithstanding a negative X-ray, [who] finds that the miner suffers or suffered from
pneumoconiosis.” 20 C.F.R. § 718.202(a). Although x-rays are often helpful in diagnosing
pneumoconiosis, “[a] claim for benefits must not be denied solely on the basis of a negative
chest X-ray.” 20 C.F.R. § 718.202(b).
Island Creek argues that the ALJ erred in three ways: (1) by inappropriately altering the
burden of proof in assessing the x-ray evidence; (2) by failing to provide adequate reasoning for
crediting the opinions of Drs. Forehand and Splan; and (3) by discrediting Drs. Fino and Jarboe
for reasons that were not supported by substantial evidence. We disagree.
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A. The ALJ’s “Rule Out” Statement Did Not Shift the Burden of Proof.
After concluding that the x-ray evidence failed to support Marcum’s claim, the ALJ noted
that, of the more recent x-rays, “one is positive, one is negative, and three, including the digital
x-ray, are inconclusive.” JA at 279 (ALJ Op. at 27). This conclusion, the ALJ found, meant that
“the recent x-ray evidence does not rule out the presence of simple clinical pneumoconiosis.” Id.Island Creek suggests that this statement “shifts the burden of proof,” because the phrase “rule
out” is a term of art that refers to a burden that is placed on the employer when a coal miner is
entitled to a legal presumption that he has pneumoconiosis. See Pet’r’s Br. at 22.
A miner who worked in coal mines for fifteen years or longer is entitled to a presumption
that any “totally disabling respiratory or pulmonary impairment” that he has is pneumoconiosis.
30 U.S.C. § 921(c)(4). That presumption may be rebutted if the employer can “‘rule-out’ coal
mine employment as a cause of the disability.” Big Branch, 737 F.3d at 1071. But no one ever
suggested that Marcum was entitled to that presumption. The ALJ repeatedly stressed that the
presumption did not apply to Marcum’s case and that the burden of proof rested with Marcum,
JA at 258, 263, 278 (ALJ Op. at 6, 11, 26), and, in the section of the opinion that Island Creek
finds problematic, the ALJ concluded that Marcum “failed to establish that he has
pneumoconiosis based on the x-ray readings,” id. at 279 (ALJ Op. at 27). Thus, rather than a
vague attempt to import the “rule-out” standard, the ALJ’s statement suggested only that,
although there was conflicting x-ray evidence, that fact did not preclude a finding that Marcum
had pneumoconiosis based on other evidence. This is an accurate statement of the law. See 20
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C.F.R. § 718.202(b). Accordingly, the ALJ’s “rule out” statement did not shift the burden of
proof.1
B. The ALJ Appropriately Credited Doctors Forehand and Splan.
Island Creek’s second argument is that the ALJ’s decision to credit Drs. Forehand and
Splan was not supported by substantial evidence. Island Creek correctly recites the background
requirements that an ALJ “[w]eigh[] all of the relevant evidence together” to assess a claim,
Dixie Fuel Co. v. Dir., Office of Workers’ Comp. Programs, 700 F.3d 878, 881 (6th Cir. 2012)
(internal quotation marks omitted), and “examine the reasoning employed” by a medical opinion
as well as “any contrary test results or diagnoses,” Island Creek Coal Co. v. Compton, 211 F.3d
203, 211 (4th Cir. 2000). But the ALJ properly discussed the qualifications and opinions of all
four doctors, including the results of all testing they performed or relied on, reviewed their
criticisms of each other’s views, and then weighed everything together. See JA at 263–75, 279–
83 (ALJ Op. at 11–23, 27–31). This was consistent with the ALJ’s obligation to consider all
relevant evidence.
1
Island Creek suggests that the ALJ should have disregarded the inconclusive x-rays,
weighed a single positive x-ray against three negative x-rays, and come to the “obvious”
conclusion. See Pet’r’s Br. at 21. It is not clear how this argument changes the analysis as the
ALJ found that the x-ray evidence did not support Marcum. See JA at 279 (ALJ Op. at 27). Nor
is it clear that Island Creek’s “obvious” conclusion would necessarily be the right one. The ALJ
was not required to rule mechanically for the side with more x-rays, Wilt v. Wolverine Mining
Co., 14 BLR 1-70, at *4 (Benefits Review Bd. 1990), and was permitted to focus on the more
recent x-rays that were far more equivocal. See Crace v. Kentland-Elkhorn Coal Corp., 109 F.3d
1163, 1167 (6th Cir. 1997).
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The ALJ’s specific determination that Dr. Forehand’s opinion was “otherwise supported
by the evidence available to him” was also supported by substantial evidence. Id. at 280 (ALJ
Op. at 28). As the ALJ explained, Dr. Forehand’s opinion was premised in large part on the fact
that certain of Marcum’s pulmonary-function tests were close to normal, while his blood-gas-
exchange testing was not, which suggested that coal dust and not cigarette smoke was causing
the blood-gas-exchange impairment. See id. at 264–65 (ALJ Op. at 12–13); see also id. at 54–
59, 61–68 (First Forehand Dep. at 35:1–40:14, 42:16–46:21, 47:15–49:19). Indeed, Dr.
Forehand testified that if Marcum “were highly susceptible to the effects of smoking, then given
[his] smoking history,” one would expect “to see a far worse” result on the forced expiratory
volume test. Id. at 267 (ALJ Op. at 15); see id. at 70–71 (First Forehand Dep. at 51:7–52:6).
This implied that pneumoconiosis caused “the pattern of impairment in the arterial blood gas
study.” Id. at 267 (ALJ Op. at 15). After his 2011 examination of Marcum, Dr. Forehand
repeated similar conclusions. See id. at 268–69 (ALJ Op. at 16–17); id. at 112, 117–20 (Second
Forehand Dep. at 9:14–21, 14:11–17:21). Ultimately, Dr. Forehand concluded that certain of
Marcum’s pulmonary-function tests—“the best way to measure the effect of cigarette
smoking”—were close enough to normal that they implied that something else was causing the
blood-gas-exchange impairment, and that “coal dust induced disease can cause interference with
gas exchange without limiting air flow.” Id. at 270 (ALJ Op. at 18); see id. at 127–28 (Second
Forehand Dep. at 24:10–25:1). This consistent pattern of test results supported Dr. Forehand’s
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explanation why the impairment could not be explained by cigarette smoking and was instead
related to coal dust.
The ALJ also properly credited Dr. Splan’s view “that coal dust and cigarette smoking
contributed to the Claimant’s obstructive disease and pneumoconiosis,” while Marcum’s “history
of pulmonary embolism contributed to his impairment, but to a lesser extent.” Id. at 281 (ALJ
Op. at 29). The ALJ found that this opinion was “otherwise supported by the evidence available
to him.” Id. This evidence included Dr. Splan’s examination of Marcum, a “pulmonary function
test [that] showed moderately severe obstructive disease with mild restriction,” and an “arterial
blood gas study [that] revealed moderately severe hypoxemia at rest.” Id. at 271 (ALJ Op. at
19); see also id. at 100–01 (Splan Report at 2–3). Dr. Splan’s view is also consistent with Dr.
Forehand’s findings, which provides further support for the ALJ’s credibility determination.
Nor did the ALJ err in crediting Drs. Forehand and Splan despite their positive reading of
x-rays that the ALJ found—based on her method of comparing the relative qualifications of
those who reviewed the x-rays—to be negative or inconclusive. As the ALJ explained, the
opinions of both doctors were undermined by this fact, but “the radiologist who found [the x-ray
that Dr. Forehand interpreted] negative agreed that there were visible nodules, albeit from
another cause (calcified granulomas),” and Dr. Splan’s opinion was “otherwise supported by the
evidence available to him.” Id. at 280–81 (ALJ Op. at 28–29). Thus, the ALJ recognized the
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potential credibility-undermining effect of the x-rays, and explained why each doctor’s x-ray
interpretation did not create a large credibility issue.2
Island Creek also critiques the ALJ for suggesting that Drs. Forehand and Splan gave
opinions that were “consistent with the regulations.” Pet’r’s Br. at 26–28. The ALJ suggested
that crediting Dr. Forehand was “consistent with the premise underlying the regulations that coal
dust can cause damage to the lungs even absent a positive x-ray,” JA at 280–81 (ALJ Op. at 28–
29), and that Dr. Splan’s “attribution of the Claimant’s multiple diagnoses to a combination of
factors is consistent with the regulations, and sufficient to meet the requirement that coal dust be
a contributing cause to the Claimant’s impairment to support a diagnosis of legal
pneumoconiosis,” id. at 281 (ALJ Op. at 29). Although Island Creek takes these as attempts to
suggest “that a diagnosis of legal pneumoconiosis is preferred by the regulations,” the ALJ was
actually explaining that Dr. Forehand’s diagnosis was acceptable in the absence of a positive x-
ray, 20 C.F.R. § 718.202(b), and that Dr. Splan’s diagnosis that multiple causes existed for
Marcum’s condition did not undermine his view that one of those causes was pneumoconiosis,
20 C.F.R. § 718.201(b).
2
Island Creek cited two decisions of the Fourth Circuit to support the proposition that
doctors whose x-ray readings are rejected should be disregarded, but neither case applies here.
Compton, 211 F.3d at 211–12, addressed an ALJ’s decision to credit an expert’s diagnosis that
was based solely on an x-ray when the ALJ had “determined that the x-ray evidence did not
establish pneumoconiosis.” Toler v. Eastern Associated Coal Co., 43 F.3d 109, 115–16 (4th Cir.
1995), says nothing about the consideration of the opinion of an expert whose x-ray readings
were rejected, and instead discusses instances in which pneumoconiosis had already been
established and courts refused to consider medical opinions that contradicted that conclusion in
evaluating arguments over whether the pneumoconiosis caused the claimant’s total disability.
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Finally, Island Creek suggests that the ALJ used “an incorrect definition of legal
pneumoconiosis” in assessing Dr. Splan’s opinion, making it erroneous to credit that opinion “as
sufficient to establish the presence of legal pneumoconiosis.” Pet’r’s Br. at 28–30. Island
Creek’s concern is based on the ALJ’s statement that Dr. Splan’s diagnosis was “sufficient to
meet the requirement that coal dust be a contributing cause to the Claimant’s impairment.” JA at
281 (ALJ Op. at 29) (emphasis added). Island Creek is correct that legal pneumoconiosis is
defined to include “any chronic restrictive or obstructive pulmonary disease arising out of coal
mine employment,” 20 C.F.R. § 718.201(a)(2), and that a disease is found to arise out of coal-
mining employment if it is “significantly related to, or substantially aggravated by, dust exposure
in coal mine employment,” 20 C.F.R. § 718.201(b). But we have held that this may be proven
“by showing that [a miner’s] disease was caused ‘in part’ by coal mine employment.” Arch on
the Green, Inc. v. Groves, 761 F.3d 594, 598–99 (6th Cir. 2014) (quoting Eastover Mining, 338
F.3d at 509). For example, evidence that a miner’s pulmonary condition “was caused by both his
smoking and his exposure to coal dust” was enough to show that the miner “suffered from legal
pneumoconiosis”—even where a doctor testified “that smoking was the more important cause.”
Id. at 599.3 Accordingly, the ALJ did not misapply the law.
3
To be sure, Marcum needed to convince the ALJ that his pneumoconiosis “was ‘a
substantially contributing cause of’” his total disability. Groves, 761 F.3d at 599 (quoting 20
C.F.R. § 718.204(c)(1)). A finding that pneumoconiosis was a cause merely “in part” is
insufficient for this disability-causation finding, id. at 599–601, but Island Creek has not
challenged the disability-causation portion of the ALJ’s decision. Its brief focuses on whether
the ALJ appropriately found “the existence of pneumoconiosis.” Pet’r’s Br. at 2; see also id. at
25–31 (section regarding Drs. Forehand and Splan, which argues only that their opinions were
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We therefore find that the ALJ applied the correct standards to assessing the credibility of
Drs. Forehand and Splan, and that her determination that the doctors were credible was
supported by substantial evidence.
C. The ALJ Appropriately Declined to Credit Doctors Fino and Jarboe.
Island Creek’s final argument is that the ALJ wrongly disbelieved Drs. Fino and Jarboe.
Before assessing the many issues that Island Creek raises with specific credibility
determinations, we address its argument that the ALJ shifted the burden of proof.
The ALJ discounted the opinions of Drs. Fino and Jarboe because neither doctor
explained why coal dust was not a potential contributor to the disabling blood-gas impairment
from which Marcum suffered and why the opacity that was visible on each x-ray was not caused
by coal dust at least in part. JA at 281–82 (ALJ Op. at 29–30). To Island Creek, this is akin to a
requirement that Island Creek prove that Marcum did not have pneumoconiosis. But the ALJ
was not setting forth a requirement that Island Creek meet any burden of proof—that burden was
met by Marcum’s own experts. Instead, the ALJ was making a credibility finding about the two
improperly credited to establish that Marcum had pneumoconiosis). In any event, Island Creek
forfeited any disability-causation argument by failing to raise it before the Benefits Review
Board, which found that Island Creek’s sole argument on the disability-causation issue “allege[d]
no specific error in regard to the administrative law judge’s consideration of the evidence.” JA
at 306 (Board Op. at 6 n.10). This led the Board to conclude that it could not review even a
general argument regarding disability causation, as it “must limit its review to contentions of
error that are specifically raised by the parties.” Id. (citing 20 C.F.R. §§ 802.211, 802.301).
Under similar circumstances, we have held that a party may “not obtain review of the ALJ’s
decision on any issue not properly raised before the [Board].” Consol. Coal Co. v. McMahon, 77
F.3d 898, 904 (6th Cir. 1996) (quoting Hix v. Dir., Office of Workers’ Comp. Programs, 824
F.2d 526, 527 (6th Cir. 1987)).
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doctors. Dr. Fino admitted that coal dust can cause disabling blood-gas impairments, id. at 184
(Fino Dep. at 21:16–19), and evidence suggested that opacities on an x-ray could be indicative of
pneumoconiosis. Thus, in opining that pneumoconiosis is not present in a patient who had such
impairments and x-rays, a doctor’s failure to explain why a potential cause was not considered
could be concerning.
1. Dr. Fino
The ALJ expressed three concerns with Dr. Fino’s opinion, each of which were supported
by substantial evidence:
First, the ALJ faulted Dr. Fino for failing to “offer any creditable reason for excluding
coal dust as a contributing cause to [Marcum’s] disabling impairment.” Id. at 281 (ALJ Op. at
29). Dr. Fino admitted that coal dust could contribute to blood-gas-exchange impairments like
those that Marcum has, id. at 184 (Fino Dep. at 21:16–19), but struggled during his deposition to
explain with any certainty the cause of Marcum’s impairment. Dr. Fino first explained, “I don’t
believe that simple pneumoconiosis is present, I don’t believe that there is an explanation by the
chest x-ray for this.” Id. at 181 (Fino Dep. at 18:16–18). He then hypothesized that either
granulomatous disease or cigarette smoking were partial causes, id. at 181 (Fino Dep. at 18:18–
22), and testified that Marcum’s blood clots could also be a cause, id. at 181–82 (Fino Dep. at
18:24–19:7). Dr. Fino’s reasoning for excluding pneumoconiosis as a cause of the gas-exchange
impairment appears to have been limited to his x-ray interpretation, even though a negative x-ray
is not alone a reason for finding that a miner does not have legal pneumoconiosis. See id. at 181
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(Fino Dep. at 18:16–18); 20 C.F.R. § 718.202(b). The ALJ therefore had a substantial basis for
discrediting Dr. Fino’s opinion on this ground.
Second, the ALJ found that Dr. Fino “did not explain why granulomatous disease must be
considered the single cause of changes on the x-rays.” Id. at 281 (ALJ Op. at 29). Dr. Fino had
testified that he “did not think [Marcum’s chest x-ray] was consistent with coal workers’
pneumoconiosis” because “it had nodular lesions that were calcified, and I felt that this was due
to old granulomatous disease, histoplasmosis, tuberculosis that he had contracted
asymptomatically way in the past,” adding that “[i]t’s more likely that it’s a fungal disease, but I
did not believe that those changes were secondary to coal workers’ pneumoconiosis.” Id. at 177(Fino Dep. at 14:3–11). Dr. Fino admitted that “everybody is seeing the small nodular lesions”
and “noting that all or at least some of them are calcified,” but that “there are differences in
opinion as to whether they are related to coal mine dust or they are granulomata.” Id. at 177(Fino Dep. at 14:19–24). Dr. Fino never elaborated why the calcification that “everyone” saw
pointed to granulomatous disease and not pneumoconiosis. In light of this lack of explanation,
the ALJ had reason to question Dr. Fino’s opinion.
Third, the ALJ criticized Dr. Fino for his overreliance on x-rays to exclude a diagnosis of
legal pneumoconiosis, noting that Dr. Fino’s “emphasis on the lack of fibrosis” in Marcum’s
lungs, was indicative of his overall focus on clinical pneumoconiosis. See id at 281–82 (ALJ Op.
at 29–30). Island Creek argues that Dr. Fino used the x-rays to exclude clinical pneumoconiosis,
and that Dr. Fino’s exclusion of legal pneumoconiosis was based on other factors. The portions
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of Dr. Fino’s deposition on which Island Creek relies do suggest that Dr. Fino considered other
sources, including his view that pulmonary-function tests showed minimal restriction, JA at 175–
76 (Fino Dep. at 12:2–12, 13:10–19), and the aforementioned discussion of Marcum’s blood-
gas-exchange results, id. at 180–82 (Fino Dep. at 17:25–19:7). Nevertheless, there was reason to
think that Dr. Fino relied on x-rays extensively. His opinion that Marcum’s blood-gas-exchange
impairment was not caused by coal dust appeared to be based exclusively on x-rays, id. at 181(Fino Dep. at 18:16–18), and his explanation for the pulmonary-function results was tentative
and unclear, id. at 175 (Fino Dep. at 12:2–12) (suggesting that the minimal pulmonary-restrictive
finding was not “necessarily” due to fibrotic lungs). Accordingly, the ALJ was not wrong to
note that Dr. Fino appeared to rely heavily on x-rays.
2. Dr. Jarboe
The ALJ expressed three concerns with Dr. Jarboe’s testimony, two of which were
supported by substantial evidence:
First, the ALJ found that Dr. Jarboe’s “diagnosis of histoplasmosis is speculative, based
on generalities.” Id. at 282 (ALJ Op. at 30). Island Creek argues that this finding was not
supported by substantial evidence because Dr. Jarboe based his opinion on the differences
between x-rays of lungs with pneumoconiosis and those with histoplasmosis. But Dr. Jarboe’s x-
ray reading was that the visible nodules in Marcum’s lungs were due to granulomatous disease,
which he identified due to the “[d]iffuse calcified shadows in the lung.” Id. at 210 (Jarboe Dep.
at 19:19–20). Dr. Jarboe added that “[y]ou can get calcified coal workers’ nodules, but . . . first
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of all, that’s very, very uncommon” and “[c]oal workers’ pneumoconiosis tends to cause a
clustering of nodules in the upper zones predominantly . . . and this distribution was more
diffuse.” Id. at 210–11 (Jarboe Dep. at 19:25–20:10). Dr. Jarboe then suggested that the
granulomatous scarring was due to Marcum having previously had histoplasmosis, stating that,
“in the state of Kentucky, almost always this is going to be caused by healed histoplasmosis.”
Id. at 210 (Jarboe Dep. at 19:22–24). Thus, although Dr. Jarboe explained why he read the x-ray
to reflect granulomatous scarring, his underlying explanation that the scarring was caused by
histoplasmosis is unexplained but for the brief and general statement that it is nearly always the
cause of such scarring in Kentucky. The ALJ’s decision to use this generality to discount Dr.
Jarboe’s credibility was supported by substantial evidence.
Second, the ALJ found that Dr. Jarboe “did not offer any adequate explanation why the
Claimant’s known exposure to coal mine dust for over 14 years was not at least a contributing
factor to his disabling hypoxemia . . . .” Id. at 282 (ALJ Op. at 30). During his deposition, Dr.
Jarboe suggested that Marcum’s smoking and “granulomatous scarring” was causing the gas-
exchange impairment. See id. at 220–21 (Jarboe Dep. at 29:14–30:13). This occurred, according
to Dr. Jarboe, because both the smoking and the scarring caused inflammation that prevented
inhaled air from getting into certain parts of the lungs, but blood was still pumped to those areas
to be oxygenated; when no oxygen was present, the blood-gas-exchange condition arose. See id.at 221–23 (Jarboe Dep. at 30:16–32:10). Unlike Dr. Fino, then, Dr. Jarboe offered an
explanation of the cause of Marcum’s blood-gas-exchange condition that was more than
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speculation. But given that coal dust can contribute to blood-gas-exchange impairments, and
that legal pneumoconiosis is defined to include such impairments that are caused at least in part
by coal dust exposure, the ALJ was not wrong to seize on Dr. Jarboe’s failure to explain how he
could be sure that smoking and granulomatous disease were the sole cause of this condition or
how he could rule out the effect of coal dust on Marcum’s blood-gas-exchange impairment.
Third, the ALJ found that Dr. Jarboe did not “offer any explanation why both
granulomatous disease and pneumoconiosis could not be responsible for changes that all readers
saw on the x-rays.” Id. at 282 (ALJ Op. at 30). This finding is not reflective of Dr. Jarboe’s
testimony. Dr. Jarboe testified to his opinion regarding the different appearances of
pneumoconiosis and granulomatous disease on x-rays, see id. at 210–11 (Jarboe Dep. at 19:15–
20:12). This explanation suggests that pneumoconiosis was not responsible for the conditions
that x-ray readers found because, according to Dr. Jarboe, those conditions were not consistent
with the appearance of pneumoconiosis on an x-ray. We need not remand the case for further
proceedings based on this error, however, because two of the three bases given by the ALJ for
discounting Dr. Jarboe’s opinion survive Island Creek’s challenges, and one of them—the failure
to “explain[] why over 13 years of coal dust exposure was not a factor in the Claimant’s gas
exchange abnormality”—was especially emphasized in the ALJ’s Opinion. See id. at 282 (ALJ
Op. at 30). We have previously held that “the accuracy” of one part of an ALJ’s credibility
assessment was “irrelevant” where other reasons given by an ALJ for discounting a doctor’s
opinion were unchallenged because “some discounting of [that doctor’s] opinion was
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appropriate,” and we therefore refrained from “second-guess[ing] the ALJ’s ultimate weighing of
medical opinions.” Island Creek, 737 F.3d at 1061. We similarly refrain from second-guessing
the ALJ’s weighing of the four medical opinions based only on this one point.
III. CONCLUSION
For the foregoing reasons, we DENY the petition for review of the ALJ’s award of black-
lung benefits to Marcum.
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