Freeman United Coal v. Hallmark, Shelby ( 2001 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 01-1430
    FREEMAN UNITED COAL MINING CO.,
    Petitioner,
    v.
    HERMAN E. SUMMERS,
    Respondent.
    Petition for Review from the Benefits Review Board
    of the United States Department of Labor
    BRB No. 00-0108 BLA
    Argued SEPTEMBER 17, 2001--Decided November 15, 2001
    Before COFFEY, EASTERBROOK and WILLIAMS,
    Circuit Judges.
    COFFEY, Circuit Judge. Petitioner
    Freeman United Coal Mining Company
    ("Freeman") appeals an order of the Bene
    fits Review Board of the United States
    Department of Labor, which granted
    Respondent Herman E. Summers’ ("Summers")
    claim for relief under the Black Lung
    Benefits Reform Act. We enforce the
    decision of the Board.
    I.   PROCEDURAL HISTORY
    This is the second time that Summers’
    claim for benefits has come before the
    court. Summers worked as a coal miner in
    southern Illinois from 1948 to 1965 and
    1974 to 1980. He retired and filed a
    claim for black lung benefits October 9,
    1980. After an administrative law judge
    ("ALJ") denied the request, the Board
    remanded for further review and then
    affirmed the denial. We upheld the
    Board’s order. Summers v. Freeman United
    Coal Mining Co., 
    14 F.3d 1220
     (7th Cir.
    1994). Summers subsequently petitioned
    the agency to modify its decision,
    stating that he had obtained new medical
    reports and data, which strengthened his
    claim. An ALJ originally denied the
    petition, but the Board reversed and
    allowed Summers to supplement the record
    with this additional information.
    The case was remanded for further
    consideration before a new judge, Thomas
    M. Burke. After considering the record as
    a whole, ALJ Burke proceeded to award
    benefits in an order dated September 2,
    1999. The Board affirmed. Freeman
    subsequently filed this appeal and argues
    that the ALJ erred in: (1) invoking the
    statutory presumption that Summers was
    totally disabled by pneumoconiosis; and
    (2) failing to find that this presumption
    was rebutted by the medical evidence
    submitted by the coal company, which
    suggested that Summers’ disability is
    wholly attributable to severe asthma and
    is unrelated to his coal mining.
    II.   FACTUAL BACKGROUND
    Summers was exposed to coal dust for
    most of his 23 years in the mining
    industry. Some of his exposure occurred
    while he was stationed in underground
    mines between May 1948 and November 1950
    and April 1975 to August 1975. During the
    former period, Summers hung electrical
    wire and trolley wire in Old Ben Coal
    Company’s #9 mine in West Frankfort, Ill.
    During the latter period, Summers
    upgraded the electrical equipment in the
    bottom of Freeman’s #4 mine in Benton,
    Ill. Black dust permeated the working
    environment at Old Ben, and, according to
    Summers, there was "substantial coal
    dust" in the Benton mine as well.
    The majority of Summers’ exposure to
    coal dust, however, occurred when he
    worked inside the offices and shops that
    were built above ground on the coal
    company’s property. Summers worked at the
    site of Freeman’s United Crown Mine in
    Springfield, Ill., from November 1950 to
    July 1960 and the site of Freeman’s #5
    mine in Benton from July 1960 to April
    1965. He was an unusually hard worker,
    putting in a straight shift plus one hour
    of overtime each weekday, and another
    overtime shift each Saturday. Moreover,
    he was on call around the clock. He left
    the coal company to work at Southern
    Illinois University in April 1965 but re
    turned in September 1974 to help overhaul
    the infrastructure of the #5 mine. After
    several months, he was promoted and
    transferred to Freeman’s central offices
    in West Frankfort, where he was given
    responsibility for maintaining and
    repairing electrical equipment in all of
    the area’s coal mines and processing
    plants. Summers worked 5 days a week in
    this position until he retired in October
    1980.
    While in the central offices, Summers
    spent portions of almost every weekday
    inspecting Freeman’s coal preparation
    plants and portions of one or two
    additional weekdays maintaining Freeman’s
    underground mines. He described how the
    miners’ activities in the preparation
    plants stirred up so much dust that he
    regularly left work with coal tracings
    all over his hair, eyebrows, and clothes.
    In fact, he stated that he was "probably"
    exposed to as much dust in the coal
    preparation plants as he was in the
    underground mines at Old Ben in the
    1940s. Part of Summers’ deposition reads
    as follows:
    Q: Can you describe the coal preparation
    plant?
    A: Well, depending on the plant, they are
    sometimes three, four, five stories high
    and it has all kinds of shakers. When the
    coal comes in, it’s usually run over
    these shakers to size the coal to get the
    different sizes. They sell coal on order.
    Some companies want small coal, some want
    large coal. So this coal is run over
    these shakers so the small ones fall
    through, and then as it goes on it gets
    to the bigger ones, and there is a lot of
    dust in these preparation plants because
    they are handling coal all the time.
    Q: Could you compare the dust generated at
    the coal preparation plant with the dust
    you were exposed to when you were working
    underground at Old Ben?
    A: It’s a difficult thing. I’d say it’s
    pretty much the same . . . if you’re
    around any of these shakers or if you’re
    around where they are loading the coal in
    the coal cars, I would say that you are
    probably exposed to as much dust there as
    you are working underground.
    Summers also explained that he was
    exposed to substantial levels of dust
    during his 15 years in Springfield and
    Benton. He divided his time among the
    coal preparation plants, the hoist rooms,
    and the repair shops. He worked at least
    once or twice a week for 15 minutes to
    several hours in the preparation plants,
    where the conditions mirrored those
    described above. In the hoist rooms,
    where he worked for 60 to 90 minutes on
    weekdays and eight hours on Saturdays,
    machine generators hummed away with
    circulation fans stirring up coal dust
    while Summers lowered men into the mine
    shaft or performed routine maintenance
    tasks. Finally, in the repair shops,
    where Summers spent approximately 30 to
    45 minutes a day, the dust so permeated
    the air that he would "always" leave work
    "covered with coal dust." The shops were
    one-room, 300 square-foot hovels with
    seven foot ceilings, a lone window, and
    no exhaust fans. Summers used an air hose
    to blow the coal dust off and out of the
    machines he restored; dust collected on
    the walls and the ceilings and needed to
    be swept out periodically. The company
    did not provide its employees with masks.
    Summers described the hoist rooms as
    "very dusty areas" and the repair shops
    as some of "the dustiest areas" on the
    surface of the mine. Part of his
    deposition discusses the extent of his
    exposure as follows:
    Q: What were the dustiest areas on the
    surface at the Crown Mine when you worked
    there?
    A: The dustiest areas?
    Q: Yes.
    A: Well, the motor repair shop was one of
    the dustiest areas. The hoist room was
    certainly a dusty area, because in the
    front of this building we had this large
    hole where the two ropes went out that
    were tied on to these buckets. And that
    window was about, I’d say, five feet
    across and four feet up and down, and
    we’re sitting there while they are
    loading coal cars right out in front of
    this building, and the prevailing winds
    would also blow it right into the hoist
    room. It was a very dusty area.
    ALJ Burke took Summers’ claim for black
    lung benefits under submission in 1998.
    The voluminous record included scores of
    x-rays, dozens of pulmonary function and
    blood gas tests, 11 reports from
    physicians, and several depositions and
    affidavits. The underlying facts were
    undisputed: the parties agreed that
    Summers has severe asthma and such
    obstructive lung diseases as emphysema,
    chronic obstructive pulmonary disease
    ("COPD"), and bronchitis. The parties
    strongly disagreed, however, about the
    cause of these ailments. Two x-rays were
    positive for pneumoconiosis, but 15 were
    negative. Several doctors believed that
    Summers was totally disabled by asthma or
    COPD, but other experts concluded that
    his disability was substantially caused
    by his exposure to coal dust. The coal
    company relied mainly on the opinions of
    Dr. Gregory J. Fino; Summers bolstered
    his claim primarily with the reports of
    Dr. Robert A.C. Cohen and Dr. David M.
    Hinkamp. ALJ Burke concluded that
    Summers’ own testimony raised an
    inference of disability caused, at least
    in part, by coal dust. The judge then
    turned to the medical evidence proffered
    by the coal company in an attempt to
    rebut this inference. He found this
    evidence unconvincing and, therefore,
    granted Summers’ petition for benefits.
    III.    STANDARD OF REVIEW
    We review questions of law de novo, but
    we give the ALJ’s factual findings
    considerable deference. We ask
    onlywhether the ALJ’s decision is
    rational, supported by substantial
    evidence, and in accordance with the law.
    Peabody Coal Co. v. Helms, 
    859 F.2d 486
    ,
    489 (7th Cir. 1988). "Substantial
    evidence is ’such relevant evidence as a
    rational mind might accept as adequate to
    support a conclusion.’" 
    Id.
     (quoting
    Richardson v. Perales, 
    402 U.S. 389
    , 401
    (1971)). We do not reweigh the evidence,
    resolve inconsistencies in the record,
    make credibility determinations, or
    substitute our inferences for those drawn
    below. Blakley v. Amax Coal Co., 
    54 F.3d 1313
    , 1322 (7th Cir. 1995); Amax Coal Co.
    v. Beasley, 
    957 F.2d 324
    , 327 (7th Cir.
    1992).
    IV.    DISCUSSION
    A.    The 15-Year Presumption
    The landmark Federal Coal Mine Health
    and Safety Act of 1969, as amended, is
    remedial legislation that is liberally
    construed to effectuate its purpose of
    improving the well-being of coal
    miners./1 One component of this
    legislation, the Black Lung Benefits
    Reform Act, 30 U.S.C. sec. 911 et seq.,
    aids miners who are totally disabled by
    black lung disease and establishes
    certain statutory presumptions that help
    remove the obstacles facing miners who
    seek to obtain such aid.
    Because Summers’ claim was filed prior
    to January 1, 1982, we apply what is
    known as the "15-year presumption"
    imposed by 30 U.S.C. sec. 921(c)(4). That
    is to say, we presume that Summers is
    disabled by pneumoconiosis if he can
    demonstrate that: (1) x-ray evidence is
    inconclusive; (2) but he has a totally
    disabling respiratory or pulmonary
    impairment; (3) and he is a coal miner;
    (4) who was employed for 15 years or more
    in either (a) an underground coal mine;
    or (b) it is determined that the
    conditions of his employment in a coal
    mine were substantially similar to
    conditions in an underground mine.
    Peabody Coal Co. v. Spese, 
    117 F.3d 1001
    ,
    1010 (7th Cir. 1997) (en banc). The miner
    is entitled to benefits unless the coal
    company overcomes this presumption with
    rebuttal evidence, the nature of which we
    discuss later in Part IV.B.
    Freeman concedes the first two elements.
    The experts all agreed that Summers is
    totally disabled, and although the
    classic form of complicated black lung
    disease is usually discernible on chest
    x-rays, all but two of Summers’ x-ray
    results were repeatedly negative. See
    Ziegler Coal Co. v. OWCP, 
    23 F.3d 1235
    ,
    1239 (7th Cir. 1994) (reversing award
    based on evidence "consisting solely of
    five negative x-ray readings and two
    positive readings"). Similarly, there is
    no serious dispute that Summers is a
    "coal miner," as defined by the relevant
    regulations./2 As part of his usual
    course of business, he worked directly on
    the coal company’s property, either
    within or above the underground coal
    mines, maintaining or repairing machines
    that were indispensable to the extraction
    or preparation of coal. See Mitchell v.
    Director, OWCP, 
    855 F.2d 485
    , 490 (7th
    Cir. 1988); Amigo Smokeless Coal Co. v.
    Director, OWCP, 
    642 F.2d 68
    , 70 (4th Cir.
    1981). Cf. Director, OWCP v. Ziegler Coal
    Co., 
    853 F.2d 529
    , 537 n.11 (7th Cir.
    1988).
    1.   Conditions of employment
    The next issue we address is whether
    Summers proved that he worked for at
    least 15 years in an underground coal
    mine or in a coal mine with conditions
    substantially similar to those in an
    underground coal mine. Freeman contends
    that the record is barren of any
    objective facts from which the ALJ could
    have determined the conditions of
    Summers’ workplace. Freeman argues that
    "even the most generous reading of
    Claimant’s comparable work experience
    amounts to two years and nine months of
    actual work underground, and seven years
    of comparable surface work." We disagree.
    The ALJ’s finding of similarity was
    supported by Summers’ unrefuted testimony
    about his employment conditions. In
    Director, OWCP v. Midland Coal Co., 
    855 F.2d 509
     (7th Cir. 1988), we held that a
    surface or "strip" miner was not required
    to directly compare his work environment
    to conditions underground. Rather, the
    miner could establish similarity simply
    by proffering "sufficient evidence of the
    surface mining conditions in which he
    worked." It would then be "the function
    of the ALJ, based on his expertise and,
    we would expect, certain appropriate
    objective factors . . . to compare the
    surface mining conditions established by
    the evidence to conditions known to
    prevail in underground mines." 
    Id. at 512
    . We conclude that Midland Coal’s
    evidentiary framework logically applies
    in this case. "Coal mines" include all of
    the structures, facilities, and real or
    personal property "upon, under or above
    the surface" of land that is used for
    extracting or preparing coal. 20 C.F.R.
    sec. 725.101(a)(12). Summers
    intermittently labored underground or in
    buildings located atop subterranean coal
    mines, performing tasks inexorably
    intertwined with coal production.
    Therefore, he is a miner, according to
    the regulations, and we will not require
    him to prove similarity in a different
    manner merely because he did not wield a
    pickaxe and a shovel while he worked. The
    evidentiary burdens are the same for all
    miners covered under the Act. See
    Battaglia v. Peabody Coal Co., 
    690 F.2d 106
    , 110 (7th Cir. 1982) ("[t]he
    regulations draw no distinction between
    underground miners and aboveground
    miners.")
    This is not to say, as the claimant
    asserted at oral argument, that a miner
    can prove similarity simply by showing
    that he was in or around a coal mine for
    at least 15 years, without any further
    discussion of his employment conditions.
    Such a scintilla of evidence would not
    discharge the claimant’s burden of proof.
    Yet on this record, we readily conclude
    that the ALJ’s invocation of the
    presumption was proper. We find no merit
    to the coal company’s claim that Summers
    simply made conclusory assertions such
    as, "The rooms were very dusty." To the
    contrary, we believe that Summers clearly
    delineated, in objective terms, the awful
    conditions on the surface of the mine. As
    we noted in Part II, Summers clearly and
    most vividly described how the tasks he
    performed in the repair shops, hoist
    rooms, and preparation plants resulted in
    dust exposure. He described how the wind
    and the exhaust fans aggravated that
    exposure, and he discussed the extent of
    that exposure. This unrebutted testimony,
    on its own terms, would have been
    sufficient for the ALJ, with his
    expertise and knowledge of the industry,
    to compare Summers’ working conditions to
    those prevalent in underground mines. See
    Blakley, 
    54 F.3d at 1319
    . Furthermore, we
    note that Summers gave additional,
    convincing, and undisputed testimony that
    his job conditions above and below ground
    were "pretty much the same." The ALJ was
    bound to find similarity after receiving
    such testimony, for one cannot rationally
    ignore credible, uncontested evidence.
    See Peabody Coal Co. v. Lowis, 
    708 F.2d 266
    , 276 (7th Cir. 1983).
    Freeman tells us that the ALJ
    erroneously analyzed the work environment
    because the judge mistakenly believed
    that Summers worked within 50 feet of the
    mine’s tipple. In response, we remind the
    petitioner that just as the ALJ cannot
    mischaracterize testimony or take
    statements out of context, 
    id.,
     the coal
    company should not distort the record on
    appeal. Summers was asked, "How far was
    [the repair shop] from the tipple?" and
    he responded, "It was closer to the other
    shaft where the men went up and down. If
    you want to talk about that tipple, it
    was within 50 or 75 feet."/3 Our review
    convinces us that the ALJ drew rational
    inferences from this portion of the
    record and, indeed, the record as a
    whole. The judge then determined that
    Summers labored in conditions
    substantially similar to those
    underground. We will not disturb those
    findings. See Summers, 
    14 F.3d at 1225
    .
    2.   The 125-day rule
    Given the findings of substantial
    similarity, the issue becomes whether
    Summers’ work in the coal mines totaled
    15 years, as that figure is defined by
    the Act and its enabling regulations.
    Summers clocked in five or six days a
    week over the course of 23 years. He
    worked in underground coal mines from May
    1948 to November 1950 and April to August
    1975, and he worked at underground coal
    mines inside miserable workrooms and
    processing plants from November 1950 to
    April 1965 and from August 1975 to
    October 1980.
    In arguing that Summers cannot invoke
    the 15-year presumption, Freeman assumes
    that an individual working above ground
    must prove that he was exposed to
    substantial coal dust for the same number
    of working hours that an underground
    miner would spend in subterranean
    conditions over the course of 15 years of
    full-time employment. Using Freeman’s
    figures, this would be at least 28,800
    working hours or 3,600 eight-hour working
    days./4 The company added up the total
    number of hours that Summers spent
    working underground and working in the
    surface repair shops, hoist rooms, and
    coal preparation plants. The company then
    divided that figure by eight in order to
    calculate Summers’ total daily exposure
    to coal dust. Because this number does
    not equal 3,600, the company believes
    that the ALJ improperly invoked the 15-
    year presumption./5 We are sure this is
    wrong. See 20 C.F.R. sec. 718.301.
    For purposes of calculating a miner’s
    length of employment, a year is defined
    as one calendar year, or partial periods
    totaling one year, during which the miner
    has worked "in or around a coal mine or
    mines for at least 125 ’working days.’"
    
    Id.
     sec. 725.101(a)(32). "A ’working day’
    means any day or part of a day for which
    a miner received pay for work as a miner,
    but shall not include any day for which
    the miner received pay while on an
    approved absence, such as vacation or
    sick leave." 
    Id.
     "If the evidence
    establishes that the miner worked in or
    around coal mines at least 125 working
    days during a calendar year or partial
    periods totaling one year, then the miner
    has worked one year in coal mine
    employment for all purposes under the
    Act." 
    Id.
     sec. 725.101(a)(32)(i). Thus,
    Summers was not required to establish
    that he worked underground for more than
    125 days per annum. See Landes v. OWCP,
    
    997 F.2d 1192
    , 1198 (7th Cir. 1993)
    (quoting Yauk v. Director, OWCP, 
    912 F.2d 192
    , 195 (8th Cir. 1989)). Nor did he
    have to prove that he was around surface
    coal dust for a full eight hours on any
    given day for that day to count towards
    the 125-day total. See Griffith v.
    Director, OWCP, 
    868 F.2d 847
    , 849 (6th
    Cir. 1989). All that Summers had to show
    was that he worked "in or around a coal
    mine" for any part of 125 days in a
    calendar year, for a total of 15 years.
    This he unquestionably did, by
    demonstrating that he was exposed to
    work-related dust five or six days each
    week from May 1948 to April 1965 and from
    April 1975 to October 1980. The ALJ then
    rationally determined that Summers was
    exposed to substantially the same
    conditions as underground miners. On this
    record, we conclude that the ALJ properly
    invoked the 15-year presumption. As a
    result, the burden shifted to the coal
    company to demonstrate either that: (1)
    Summers does not have pneumoconiosis; (2)
    is not totally disabled; or (3) is not
    disabled by pneumoconiosis. Peabody Coal
    Co. v. Director, OWCP, 
    165 F.3d 1126
    ,
    1128 (7th Cir. 1999); Amax Coal Co. v.
    Burns, 
    855 F.2d 499
    , 500 (7th Cir. 1988).
    B.   The Rebuttal Burden
    Legal pneumoconiosis (as opposed to
    clinical pneumoconiosis) is defined as a
    chronic dust disease of the lung and its
    sequelae, including chronic, restrictive,
    or obstructive respiratory and pulmonary
    impairments arising out of coal mine
    employment. Underhill v. Peabody Coal
    Co., 
    687 F.2d 217
    , 223 n.10 (7th Cir.
    1982); 30 U.S.C. sec. 902(b). Coal-
    induced dust diseases arising from mine
    employment include all chronic pulmonary
    diseases or respiratory or pulmonary
    impairments that are significantly
    related to, or substantially aggravated
    by exposure to coal dust during coal mine
    employment. 20 C.F.R. sec. 718.201.
    Freeman attempted to prove that Summers
    does not have, or is not disabled by
    pneumoconiosis. "The proper causation
    standard requires that black lung disease
    be a necessary, though it need not be a
    sufficient, condition of the miner’s
    total disability." Shelton v. Old Ben
    Coal Co., 
    933 F.2d 504
    , 508 (7th Cir.
    1991). In other words, at this juncture,
    the coal company must prove that Summers
    would have been able to continue working
    in the mines had it not been for
    pneumoconiosis. Peabody Coal Co. v.
    Director, OWCP, 
    165 F.3d 1126
    , 1128 (7th
    Cir. 1999); Freeman United Coal Mining
    Co. v. Anderson, 
    973 F.2d 514
    , 518 (7th
    Cir. 1992). The ALJ determined that
    Freeman did not carry its burden, and we
    agree.
    On appeal, Freeman relies on the
    testimony of Dr. Gregory J. Fino, who
    observed that Summers has a long history
    of allergies and severe asthma. Dr. Fino
    testified that Summers’ FEV1 values
    fluctuated on various tests, which he
    said is consistent with asthma but not
    dust-related respiratory ailments. Dr.
    Fino recognized that bronchodilator
    therapy failed to completely reverse
    Summers’ asthmatic symptoms and
    acknowledged that this lack of
    reversibility is unusual. However, he
    discounted this evidence because 10
    percent of asthmatics fail to respond to
    such treatment. Dr. Fino concluded that
    Summers: (1) does not have black lung
    disease or any other occupationally-
    acquired pulmonary condition; and (2) is
    totally disabled due to asthma. He says
    Summers "would be as disabled as I find
    him now had he never stepped foot in the
    mines."
    Dr. Robert A.C. Cohen and Dr. David M.
    Hinkamp disagreed. Dr. Cohen deemed it
    significant that much of Summers’ two
    decades of exposure occurred before the
    enactment of federal dust control
    standards. He agreed that Summers’ FEV1
    values fluctuated, but he testified that
    Summers’ consistently subnormal FEV1/FVC9
    values were symptomatic of a coal-induced
    obstructive disease other than asthma.
    Dr. Cohen added that Summers’ poor
    response to bronchodilators further
    indicated that a coal-related disease
    significantly contributed to his
    respiratory impairments. Dr. Cohen,
    therefore, attributed Summers’ disability
    to a combination of factors, including
    coal dust exposure, asthma, and several
    years of smoking prior to 1971. Dr.
    Hinkamp similarly concluded that coal was
    an important contributing factor to
    Summers’ disability. Dr. Hinkamp
    determined that Summers’ x-ray and
    pulmonary function tests indicated a
    large amount of air trapping and
    reversible bronchospasms that could not
    be attributable solely to adult onset
    asthma.
    The ALJ discussed this evidence, made a
    finding that Dr. Cohen and Dr. Hinkamp
    had performed sound medical analyses,
    and, in turn, expressly gave their
    testimony greater weight than Dr. Fino’s.
    The ALJ was impressed with their command
    of medical literature, as well as Dr.
    Cohen’s extensive training, experience at
    black lung clinics across the nation,
    directorship of the Black Lung Clinics
    Program at Cook County Hospital, and
    advisory capacity with the National
    Coalition of Black Lung and Respiratory
    Disease Clinics. The ALJ explained that
    Dr. Cohen’s report "is well reasoned,
    discusses the pertinent medical records,
    and shows a great level of knowledge
    regarding the medical literature as it
    pertains to coal-induced lung disease."
    Dr. Cohen "elaborated on these opinions
    during [his] deposition testimony in a
    well reasoned and knowledgeable manner,"
    and was supported by Dr. Hinkamp, who
    performed his own independent analysis of
    the record. We are convinced that the ALJ
    had a rational, substantial basis to find
    that Dr. Cohen "creditably" rebutted Dr.
    Fino’s opinions, particularly with
    respect to the inferences that may be
    drawn from Summers’ response to
    bronchodilator therapy./6
    Freeman argues that the ALJ "erred by
    preferring Dr. Cohen’s unfounded claims
    to the well-reasoned analysis of Dr.
    Fino, which makes clear that Claimant’s
    mining work was not a contributing cause
    of his long-standing asthmatic
    condition." Whether a medical opinion is
    reasoned, however, is a decision that
    rests ultimately with the ALJ, not with
    us. Freeman United Coal Mining Co. v.
    Cooper, 
    965 F.2d 443
    , 448 (7th Cir.
    1992); Migliorini v. Director, OWCP, 
    898 F.2d 1292
    , 1296 (7th Cir. 1990); Arch
    Mineral Corp. v. OWCP, 
    798 F.2d 215
    , 221
    (7th Cir. 1987). It was rational to give
    great weight to Dr. Cohen’s views,
    particularly in light of his remarkable
    clinical experience and superior
    knowledge of cutting-edge research. See
    Blakley, 
    54 F.3d at 1322
    . It also was
    rational to discount Dr. Fino’s opinions,
    based on a finding that they were not
    supported by adequate data or sound
    analysis./7 See Dempsey v. OWCP, 
    811 F.2d 1154
    , 1162 (7th Cir. 1987); see also
    Piney Mountain Coal Co. v. Mays, 
    176 F.3d 753
    , 763 (4th Cir. 1999) ("the
    reliability of a given opinion is not
    necessarily revealed by the forcefulness
    of the speaker’s language.")
    Even if Dr. Cohen’s testimony is fully
    credited, Freeman claims to have
    successfully rebutted the presumption
    that it caused Summers’ black lung
    disease, because Dr. Cohen stated that he
    could not determine with any precision
    what percentage of Summers’ impairment
    was caused by asthma, cigarette smoking,
    or coal mine dust. We have held, however,
    that doctors need not make such
    particularized findings. The ALJ needs
    only to be persuaded, on the basis of all
    available evidence, that pneumoconiosis
    is a contributing cause of the miner’s
    disability. Compton v. Inland Steel Coal
    Co., 
    933 F.2d 477
    , 483 (7th Cir. 1991);
    Hawkins v. Director, OWCP, 
    907 F.2d 697
    ,
    701 (7th Cir. 1990). We note,
    furthermore, that the ALJ relied on more
    than simply the testimony of Dr. Cohen.
    The judge based his ruling on "the
    opinions of Dr. Cohen and Dr. Hinkamp,
    and . . . the totality of the evidence,
    including all of the medical opinions,
    test results, and hospital records."/8
    The ALJ specifically noted his review of
    two x-rays that indicated black lung
    disease and statements from two doctors,
    who examined Summers in 1982 and 1994,
    and determined that coal dust either
    aggravated or contributed to Summers’
    respiratory problems./9 This evidence,
    which the coal company does not contest
    on appeal, further supports the ALJ’s
    findings. See Blakley, 
    54 F.3d at 1322
    (affirming decision; noting that judge
    "did not limit his review of the evidence
    to one study or witness").
    V.   CONCLUSION
    This case forced ALJ Thomas M. Burke to
    resolve complex issues on the basis of a
    voluminous record that is full of
    conflicting opinions. The judge did
    exactly what he was supposed to do: give
    these varying opinions more or less
    weight based on his view of the
    credibility of the witnesses, the
    reliability of their medical analyses,
    and the depth of support for their
    conclusions. See Peabody Coal Co. v.
    McCandless, 
    255 F.3d 465
    , 469 (7th Cir.
    2001) (offering guidance to
    administrative factfinders). Herman E.
    Summers was a healthy young man when he
    first stepped into the coal mines of
    southern Illinois. Today, he is a feeble
    octogenarian whose lungs are full of
    poison. Freeman United Coal Mining
    Company is legally responsible. The time
    to pay up is now--more than 21 years
    after this claim was first filed. Judge
    Burke’s decision to award black lung
    benefits is lawful, rational, and
    supported by substantial evidence. The
    order of the Board is AFFIRMED.
    FOOTNOTES
    /1 Although the medical community has recognized the
    relationship between coal mining and debilitating
    respiratory illnesses for more than a century,
    "[t]he human and economic burden of occupational
    disease in general and dust diseases in particu-
    lar was often ignored in the process of industri-
    alization." Michael Gochfeld, M.D., Books, 25 J.
    Health Pol. Pol’y & L. 782, 782 (2000) (reviewing
    Alan Derickson, Black Lung: Anatomy of a Public
    Health Disaster (1998)). "[T]he first fifty years
    of the twentieth century saw a systematic attempt
    by the coal producers to downplay, misrepresent,
    or discredit the evidence [of mine-related health
    risks]. Their cause was abetted by a number of
    industry-supported physicians who managed to
    dominate the literature and professional discus-
    sion with claims that coal dust was relatively
    harmless and did not damage miners’ lungs." Id.
    at 783.
    /2 "Miner or coal miner means any individual who
    works or has worked in or around a coal mine or
    coal preparation facility in the extraction or
    preparation of coal. The term also includes an
    individual who works or has worked in coal mine
    construction or transportation in or around a
    coal mine, to the extent such individual was
    exposed to coal mine dust as a result of such
    employment (see sec. 725.202). . . ." 20 C.F.R.
    sec. 725.101(a)(19).
    "Coal preparation means the breaking, crushing,
    sizing, cleaning, washing, drying, mixing, stor-
    ing and loading of bituminous coal, lignite or
    anthracite, and such other work of preparing coal
    as is usually done by the operator of the mine."
    Id. sec. 725.101(a)(13).
    /3 Summers’ Dep. at 9.
    /4 8 hours/day x 5 days/week x 48 weeks/year x 15
    years = 28,800 hours.
    /5 Pet’r Br. at 14-15.
    /6 September 2, 1999 Order ("Order") at 17.
    /7 Dr. Fino stated in his written report of August
    30, 1998 that "there is no good clinical evidence
    in the medical literature that coal dust inhala-
    tion in and of itself causes significant obstruc-
    tive lung disease." (Br. Supp. Pet. Modif’n at 23
    (March 10, 1999)). During a rulemaking proceed-
    ing, the Department of Labor considered a similar
    presentation by Dr. Fino and concluded that his
    opinions "are not in accord with the prevailing
    view of the medical community or the substantial
    weight of the medical and scientific literature."
    
    65 Fed. Reg. 79,920
    , 79,939 (Dec. 20, 2000).
    /8 Order at 18.
    /9 Id. at 4, 14-15.
    

Document Info

Docket Number: 01-1430

Judges: Per Curiam

Filed Date: 11/15/2001

Precedential Status: Precedential

Modified Date: 9/24/2015

Authorities (26)

Freeman United Coal Mining Company v. Ralph E. Anderson ... , 973 F.2d 514 ( 1992 )

Zeigler Coal Company v. Office of Workers' Compensation ... , 23 F.3d 1235 ( 1994 )

Rita J. Mitchell v. Director, Office of Workers' ... , 855 F.2d 485 ( 1988 )

ann-a-battaglia-petitionercross-respondent-and-director-office-of , 690 F.2d 106 ( 1982 )

peabody-coal-company-and-old-republic-insurance-company-v-director-office , 165 F.3d 1126 ( 1999 )

freeman-united-coal-mining-company-v-sally-cooper-widow-of-jack-cooper , 965 F.2d 443 ( 1992 )

Amigo Smokeless Coal Company v. Director, Office of Workers'... , 642 F.2d 68 ( 1981 )

Peabody Coal Company v. Howard T. Lowis and Director, ... , 708 F.2d 266 ( 1983 )

Amax Coal Company v. Ruby Beasley, Widow of Robert v. ... , 957 F.2d 324 ( 1992 )

Robin Griffith v. Director, Office of Workers' Compensation ... , 868 F.2d 847 ( 1989 )

Robert Hawkins v. Director, Office of Workers' Compensation ... , 907 F.2d 697 ( 1990 )

director-office-of-workers-compensation-programs-united-states , 855 F.2d 509 ( 1988 )

peabody-coal-company-and-old-republic-insurance-company-v-annabelle , 117 F.3d 1001 ( 1997 )

Peabody Coal Company and Old Republic Insurance Company v. ... , 859 F.2d 486 ( 1988 )

Herman E. Summers v. Freeman United Coal Mining Co. And ... , 14 F.3d 1220 ( 1994 )

Lois Blakley, Widow of Morris Blakley v. Amax Coal Company, ... , 54 F.3d 1313 ( 1995 )

Peabody Coal Company and Old Republic Insurance Company v. ... , 255 F.3d 465 ( 2001 )

dorothy-dempsey-v-director-office-of-workers-compensation-programs , 811 F.2d 1154 ( 1987 )

Director, Office of Workers' Compensation Programs, United ... , 97 A.L.R. Fed. 577 ( 1988 )

Irving Landes v. Office of Workers' Compensation Program, ... , 997 F.2d 1192 ( 1993 )

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