Consol Coal Co v. OWCP ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3315
CONSOLIDATION COAL COMPANY,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
and JAMES E. STEIN,
Respondents.
____________
Petition for Review from the Benefits Review Board
of the United States Department of Labor
BRB No. 00-954 BLA
____________
ARGUED APRIL 9, 2002—DECIDED JUNE 25, 2002
____________
Before FLAUM, Chief Judge, and COFFEY and KANNE,
Circuit Judges.
COFFEY, Circuit Judge. Petitioner Consolidation Coal
Company (“Consol”) appeals an order of the Benefits Review
Board of the United States Department of Labor (“DOL”)
granting Respondent James E. Stein’s (“Stein”) claim for
relief under the Black Lung Benefits Act. We enforce the
decision of the Board.
2 No. 01-3315
I.
This is the second time that Stein’s claim for benefits,
originally filed in July 1994, has come before the court.
Stein worked as a mechanic at Consol’s Burning Star mine
in DeSoto, Ill., from 1978 to 1989, when the mine was
closed and abandoned, and he filed for black lung benefits
after his respiratory ailments became so debilitating that
he was unable to continue working as a carpenter. Adminis-
trative Law Judge (“ALJ”) Mollie W. Neal took Stein’s claim
under submission and, after review, issued an order award-
ing benefits in March 1997.
Consol appealed, and we granted the petition and re-
manded this case in March 1999, noting that “the ALJ
found the existence of pneumoconiosis but failed to discuss
a CT scan that was taken of Stein’s thorax” and interpreted
by the coal company’s physician, Dr. Robert M. Bruce, as
negative for black lung disease.1 In remanding the case, we
stated that a CT scan plays “an increasing role in the ra-
diologic evaluation of occupational lung disease” and is a
“valuable part of the evaluation process.” We added: “With-
out a written discussion of the relevant medical evidence,
including the CT scan, we cannot determine whether the
ALJ discharged her duty under the law before determin-
ing Stein suffered from pneumoconiosis. We, therefore, can-
not determine whether her decision was rational and
supported by substantial evidence.” Thus, this case was re-
manded for reconsideration and an explanation of whether
Stein could invoke the presumption that he has black lung
1
A computed tomography (“CT”) scan or a high-resolution com-
puted tomography (“HRCT”) scan may be useful for the identifica-
tion and analyzation of abnormalities that may be present on the
soft tissue within the body. See, e.g., M. Akira, High-Resolution
CT in the Evaluation of Occupational and Environmental Disease,
40(1) RADIOL. CLIN. N. AM. 43 (2002); K. Kim et al., Imaging of
Occupational Lung Disease, 21(6) RADIOGRAPHICS 1371 (2001).
No. 01-3315 3
disease despite Dr. Bruce’s opinion that the CT scan ruled
out such a possibility.
On remand, Judge Neal found that Dr. Bruce’s negative
reading of the CT scan was unreliable and unconvincing,
as the record is bereft of any evidence reflecting that Dr.
Bruce has any specialized knowledge, training, or experi-
ence in the field of radiology. In the penultimate sen-
tence of her opinion, the judge stated: “I have now consid-
ered the CT scan evidence of record, as instructed by the
Court of Appeals, and find that the outcome remains un-
changed. . . . Claimant has established the existence of
pneumoconiosis.” The coal company once again appeals,
now alleging that the ALJ erred in: (1) invoking the statu-
tory presumption that Stein has pneumoconiosis; and (2)
failing to find that the coal company rebutted this pre-
sumption by proffering evidence that Stein’s disability is
unrelated to mining and instead is wholly attributable to
asthma, bronchitis, or smoking.
II.
Stein suffered daily exposure to coal dust during his elev-
en years of employment at Consol, where he worked from
1978-89 in a dilapidated garage with conditions that were
unhealthful, to say the least. The garage was located but
an eighth of a mile from the tipple of the mine—a notori-
ously dusty area where coal is crushed for shipment to
customers. Dust would regularly fall in Stein’s face as he
performed his assigned task of repairing and maintaining
the bulldozers and trucks used throughout the mine. Stein’s
job duties required that he get on his back and wriggle un-
der the vehicles in order to disassemble machine parts
and drag them to other areas of the shop for refurbishing.
The parts frequently weighed as much as forty pounds and
were “packed full of coal dust, all the way to the top of the
frame.” Yet it is unclear from the record whether the com-
4 No. 01-3315
pany provided its mechanics with face masks, despite the
fact that the wind often blew coal dust into their worksta-
tions and they were in daily contact with soot-covered ma-
chinery.2
The medical record introduced into evidence included a
CT scan, two x-rays, numerous medical reports and test
results, several depositions, and a transcript of testimony
taken at a hearing in Carbondale, Ill. While the parties
agree that Stein is suffering from obstructive bronchitis and
asthma, they disagree as to whether he has black lung
disease or whether his exposure to coal dust aggravated his
asthmatic bronchitis. The petitioner relies partly on the
opinion of Dr. Locke, a physician who opined that Stein’s
x-ray was negative for pneumoconiosis.3 Consol also relies
heavily on the opinion of Dr. Robert M. Bruce, who testified
that neither the x-ray nor the CT scan of Stein’s thorax es-
tablished the presence of black lung disease.4 Based on his
2
The structural forces and the massive, widespread opposition
raised by coal companies in their efforts to prevent miners from
improving their miserable working conditions and obtaining qual-
ity health care has been documented by numerous commentators.
See generally C.M. DUNCAN, WORLDS APART: WHY POVERTY PER-
SISTS IN RURAL AMERICA 1-72 (1999); A. DERICKSON, BLACK LUNG:
ANATOMY OF A PUBLIC HEALTH DISASTER (1998); M. Gochfeld,
Books, 25 J. HEALTH POL. POL’Y & L. 782 (2000) (book review); T.F.
Cogan, Is the Doctor Hostile?, 97 W. VA. L. REV. 1003 (1995).
3
Without providing any additional elaboration upon the basis of
his opinion, a “Dr. Locke” filled out and submitted a one-page,
standardized form indicating that he examined Stein’s x-rays on
March 25, 1996, checking the box labeled “film is completely
negative.” Dr. Locke’s credentials, area of specialization, and place
of business are unexplained in the record. (EX 1, Exh. 1.)
4
Dr. Bruce is an active practitioner and an associate professor of
pulmonology at Washington University Medical Center in St.
(continued...)
No. 01-3315 5
examination of the CT scan and review of Stein’s medical
history, Dr. Bruce concluded that Stein’s disability is un-
related to his work as a coal miner and cannot be attributed
to pneumoconiosis. Stein, on the other hand, bolsters his
claim with the testimony of two B-readers,5 one of whom
also is a board certified radiologist, who concluded that the
x-ray was positive for black lung.6 Stein also relies on the
testimony of Dr. Robert A.C. Cohen, who determined that
Stein suffers from black lung disease and that his addi-
tional pulmonary problems were substantially aggravated
by exposure to coal dust.7
After a review of the record, ALJ Neal relied upon and
adopted the opinions of those medical experts who found
that Stein’s spirometry, blood gas, pulmonary function and
(...continued)
Louis, Mo., who is board certified in internal medicine and has
published articles involving respiratory diseases. He has testified
on behalf of both miners and operators during the past several
years. However, he is neither a B-reader nor a radiologist.
5
“A ‘B-reader’ is a physician who has demonstrated proficiency
in assessing and classifying X-ray evidence of pneumoconiosis by
successful completion of an examination conducted by or on behalf
of the Department of Health and Human Services.” Ziegler Coal
Co. v. OWCP, 23 F.3d 1235, 1237 n.3 (7th Cir. 1994).
6
The physicians who concluded that the x-ray was positive, Dr.
Mathur and Dr. Pathak, are certified B-readers. Dr. Mathur also
is a board certified radiologist.
7
Dr. Cohen is a faculty member at the University of Illinois Med-
ical Center in Chicago and the director of the Black Lung Clinics
Program at Cook County Hospital in Chicago, Ill. He also is a
respected advisor to the HHS-funded National Coalition of Black
Lung and Respiratory Disease Clinics. He has published numer-
ous articles about occupational health diseases and is a B-reader.
6 No. 01-3315
x-ray tests established the existence of pneumoconiosis.8
The judge explicitly found that Dr. Bruce’s negative reading
of the CT scan was unreliable, for the judge was of the opin-
ion that the record failed to establish that he has sufficient
knowledge, training, or expertise in reading and interpret-
ing a CT scan for the diagnosis of legal pneumoconiosis.
Judge Neal also determined that the coal company failed
to rebut the inference that Stein’s eleven years of employ-
ment at the Burning Star coal mine was the legal cause
of his disability. Based upon all of the medical informa-
tion and in view of Stein’s eleven years of coal mine employ-
ment, the judge again ruled that Stein is entitled to bene-
fits, and the Board affirmed.
III.
The issue before us is whether the ALJ’s award of benefits
under the Black Lung Benefits Act was lawful, rational,
and supported by substantial evidence. The governing reg-
ulations provide that “[a] finding of pneumoconiosis may be
made,” and the claimant will thereafter be presumptively
entitled to benefits, if he: (1) establishes that he worked
in the coal mines for ten years or more; and (2) produces
an x-ray test that, in the opinion of a qualified physician,
discloses the presence of black lung disease. 20 C.F.R.
8
The pulmonary function tests included measurements of Stein’s
FEV1, FET1/FVC, FEF25-75%, MVV, TLC, DLCO, and DL/VA val-
ues. The cardiopulmonary exercise and blood gas tests included
measurements of Stein’s pH, PO2, PCO2, HCO3, BE, O2CT, and
O2 SAT% levels. The pulmonary function tests produced uniform-
ly poor results, ranging from 43 to 89 percent below the predicted
normal range. In addition, Dr. Cohen testified that he was un-
able to “rule out” the possibility that Stein had “gas exchange
problems with exercise,” for Stein was unable to complete the
cardiopulmonary exercise tests due to shortness of breath. (CX 6
at 2-3.)
No. 01-3315 7
§ 718.202(a)(1). This is referred to as the “10-year presump-
tion.” Crowe v. Director, 226 F.3d 609, 614 n.7 (7th Cir.
2000). Once the miner is entitled to such a presumption, the
burden shifts to the employer to demonstrate that: (1) the
miner does not truly have pneumoconiosis; (2) is not total-
ly disabled; or (3) is not disabled by pneumoconiosis. Free-
man United Coal Mining Co. v. Summers, 272 F.3d 473, 481
(7th Cir. 2001).
A.
After examining the x-ray of Stein’s chest and considering
and crediting the testimony of the two B-readers (one of
whom also is a board certified radiologist), Judge Neal ruled
that Stein was entitled to the presumption that he is totally
disabled by pneumoconiosis. The petitioner now contends
that the ALJ’s decision is irrational because it conflicts with
the opinion of Dr. Robert M. Bruce, the company-retained
physician who testified that Stein’s CT scan was negative
for pneumoconiosis.
Despite the fact that two qualified B-readers (including a
board certified radiologist) determined that Stein’s x-rays
were positive,9 the coal company argues that we must treat
Dr. Bruce’s negative reading of Stein’s CT scan as conclu-
sive because it ostensibly is the most “sophisticated and
sensitive diagnostic test” available. According to the em-
ployer: “A CT scan, which is negative for the presence of
pneumoconiosis, prohibits a rational finding of pneumoconi-
osis based solely on positive x-ray findings.” We disagree
9
It is unclear why neither Dr. Mathur, Dr. Pathak, nor Dr.
Cohen was given the opportunity to examine the CT scan print-
outs. This evidentiary record would have been much more com-
plete if these physicians had been allowed to review the printouts
and attempt to rebut directly Dr. Bruce’s testimony concerning
the probative value of the same.
8 No. 01-3315
with the employer’s argument, for it contradicts the very
language of the most recent guidelines promulgated by the
DOL, which make clear that a CT scan is not a magic bul-
let: Even if a CT scan is negative, the ALJ may conclude
from the other medical and scientific testimony available
that a miner has legal pneumoconiosis.10
The Department of Labor has rejected the view that a CT
scan, by itself, “is sufficiently reliable that a negative re-
sult effectively rules out the existence of pneumoconiosis.”
65 Fed. Reg. 79,920, 79,945 (Dec. 20, 2000). After consider-
ing the opinions of four commentators offered during
an administrative rulemaking proceeding, the agency made
a finding, which is entitled to deference, Old Ben Coal Co.
v. Scott, 144 F.3d 1045, 1048 (7th Cir. 1998), that a nega-
tive CT scan, standing alone, need not be given controlling
weight in the evaluation of a black lung benefits claim
because “[t]he statutory definition of ‘pneumoconiosis’ . . .
encompasses a broader spectrum of diseases than those
pathological conditions which can be detected by clinical
diagnostic tests such as x-rays or CT scans.” According to
the agency:
For purposes of the Black Lung Benefits Act, “pneumo-
coniosis” includes any “chronic dust disease of the lung
and its sequelae, including respiratory and pulmonary
10
The most recent regulations were published in the Federal Reg-
ister on December 20, 2000, more than six months after Judge
Neal rendered her decision but nearly seven months before the
Board affirmed the award of benefits in this case. The DOL
invited both parties to file objections to the Board’s application of
the new regulations when it conducted its administrative review
of Judge Neal’s decision. Neither party availed itself of this op-
portunity to do so. (Doc. Nos. 28-48.) Accordingly, as in Summers,
272 F.3d at 479-84, we have discussed and applied the existing
regulations whenever they were relevant to the issues raised in
this appeal.
No. 01-3315 9
impairments, arising out of coal mine employment.” A
CT scan may provide reliable evidence in a particular
claim that the miner does not have any evidence of the
disease which can be detected by that particular di-
agnostic technique. The record, however, does not con-
tain any medical evidence demonstrating the capacity of
CT scans to rule out the existence of all diseases “arising
out of coal mine employment.” The Department therefore
cannot accept the commentator’s position that a negative
CT scan is self-sufficient evidence that the miner does
not have “pneumoconiosis” for purposes of the statute.
65 Fed. Reg. at 79,945-46 (internal citations omitted; em-
phasis supplied).
In urging us to disregard the Department’s regulations,
the coal company refers us to other black lung adjudications
where ALJs have given greater weight to negative autopsy
reports as contrasted to positive x-ray readings. See, e.g.,
Terlip v. Director, 8 BLR 1-363 (1985). The coal company
argues: “If the CT scan is a more sophisticated and sensi-
tive diagnostic test [than an x-ray], and if the scan shows
no evidence of pneumoconiosis,” then it is just as irrational
to invoke the presumption of disability in such a case as
it would be to “award benefits in a situation where x-ray
findings are positive for black lung disease but the more
sophisticated autopsy fails to disclose evidence of the dis-
ease.”
The employer’s argument is fatally flawed in several
respects, the most obvious being the assumption that the
medical community has reached a consensus about the
singular, best method for diagnosing pneumoconiosis—
whether it is with the CT scan or with pathological au-
topsies, x-rays read by B-readers, or the myriad of other
commonly used expert diagnostic tests undertaken with
10 No. 01-3315
or without a CT scan.11 The DOL has determined that
no single test or procedure, standing alone, is entitled to
controlling weight as a matter of law.12 65 Fed. Reg. at
79,945.
Multiple individuals informed the DOL that negative CT
scans, when viewed in isolation, may not be “reliable di-
agnostic tools for evaluating the presence or absence of
pneumoconiosis because no standardized criteria exist for
interpreting them.” Id.; see also 15 GRAY & GORDY, ATTOR-
NEY’S TEXTBOOK OF MEDICINE ¶ 205B.61(5) (1994) (noting
that in black lung benefits proceedings, “no standards of
interpretation have been established for CT findings, nor
has their relationship to levels of dust exposure been de-
termined.”); M. Remy-Jardin et al., Coal Workers Pneumoco-
niosis, 177(2) RADIOLOGY 363, 369 (1990). Thus, any de-
cision to deny a claim for benefits must be based on the
11
Consol’s further assumption that autopsy reports will often rule
out a positive diagnosis made from x-ray readings rests upon a
grave misunderstanding of medical reality that has been rejected
by both the Supreme Court and the Surgeon General. See Usery
v. Turner Elkhorn Mining Co., 428 U.S. 1, 32 (1976) (“In particu-
lar, the findings of the Surgeon General and others indicated . . .
that autopsy frequently disclosed pneumoconiosis where x-ray
evidence had disclosed none; and that pneumoconiosis may be
masked from x-ray detection by other disease.”).
12
See, e.g., Peabody Coal Co. v. McCandless, 255 F.3d 465, 468
(7th Cir. 2001) (stating that an ALJ may never rationally rule
“that whoever examines the cadaver . . . dictates the outcome” but
may give greater weight to an autopsy report if the judge articu-
lates a valid reason for doing so); Peabody Coal Co. v. Director,
972 F.2d 178, 182 (7th Cir. 1992) (holding that while it is “permis-
sible for the ALJ to prefer the testimony of the autopsy physician
over the opinions of those physicians who did not view the miner’s
lung in its entirety,” we have not “condone[d] such a preference as
a blanket rule”).
No. 01-3315 11
totality of the medical and scientific evidence contained in
the record—not the results of the scan alone.
According to Dr. Q.T. Pham:
Recent advances in medicine and associated technolo-
gies have resulted in the development of other imaging
techniques, including computerised tomography (CT),
magnetic resonance imaging (MRI), and ultrasono-
graphy. However, conventional chest radiography re-
mains the principal technique on which most occupa-
tional chest disease physicians rely, although the other
imaging techniques will no doubt have an important
role to play in the future. Current advice is that “radio-
logical diagnosis must be deductive in the light of the
other, relevant data and spot diagnosis from the image
alone must be avoided at all costs.”
****
[A]s the newer imaging techniques already referred to
(computed tomography, magnetic resonance imaging
(MRI), and ultrasonography) all have advantages and
drawbacks, they are also likely to continue as comple-
mentary to radiography for some time to come. . . . In
addition, it must also be emphasized that one radiologi-
cal observation alone is not enough to arrive at a firm
diagnosis of pneumoconiosis; this should be based on a
number of characteristic combinations of signs that form
patterns, along with other evidence such as work at an
exposed place.
Q.T. Pham, Chest Radiography in the Diagnosis of Pneumo-
coniosis, 5(5) INT. J. TUBERC. LUNG DIS. 478, 479-80 (2001)
(emphasis supplied).
At present, “[t]he clinical diagnosis and follow-up of pneu-
moconiosis in most workforces at risk for pneumoconiosis
are still based on the changes in the lung visible by stan-
dard X-ray techniques.” Id. at 478. Nearly a decade ago,
12 No. 01-3315
Harvard Medical School Professor Theresa C. McLoud,
M.D., reported on the research establishing that CT and
HRCT scans, when evaluated by qualified experts, are “im-
portant diagnostic tool[s]” that have resulted in “major im-
provements in the assessment of occupational lung disease.”
T. McLoud, Symposium: Occupational Lung Disease, 30(6)
RADIOL. CLIN. N. AM. ix (1992). Nevertheless, it remains the
case that the results of such tests must be interpreted by
qualified medical experts “in conjunction with the occupa-
tional history, clinical examination, and pulmonary func-
tion tests” of the miner, id., including: (1) the results of
x-ray, spirometry, blood gas or other tests; (2) the readings
of MRI, ultrasonographic or gallium lung scans; and (3) the
reasoned opinions of all the experts and physicians. See
Ziegler, 23 F.3d at 1239; Collins v. Director, 932 F.2d 1191,
1194 (7th Cir. 1991) (Coffey, J., concurring).
We defer to the Department of Labor’s reasonable judg-
ment in resolving complex, technical issues that draw upon
its familiarity and expertise with the diagnosis, prevention,
and remediation of black lung disease. Since the evidence
presented to the Department as of this date has raised
reasonable doubts about the ability of CT scans, standing
alone, to rule out pneumoconiosis, as defined by 20 C.F.R.
§ 718.201, the Department has flatly refused to conclude
that a negative CT scan is a wildcard that must trump
all other evidence. We thus refuse to hold that an ALJ in
the exercise of her discretion and best judgment must
always defer to the results of a CT scan when determining
whether a miner has raised the 10-year presumption of
disability or whether the coal company has subsequently
rebutted the presumption of disability. Usery, 428 U.S. at
34; Scott, 144 F.3d at 1048.
Perhaps because Consol is aware of the absence of any
regulatory requirement that a negative CT scan must
trump all other evidence, the coal company also seeks re-
versal of ALJ Neal’s decision because Consol disagrees with
No. 01-3315 13
the reasons the judge gave for discrediting the scan results
in this particular case. This argument is without merit, for
we may not “reweigh the evidence, resolve inconsistencies
in the record, make credibility determinations, or substitute
our inferences for those drawn below.” Summers, 272 F.3d
at 478. Upon review of the record, we are convinced that
substantial evidence supported the judge’s conclusion that
the reader of the CT scan, Dr. Robert M. Bruce, lacked the
necessary expertise, knowledge, and qualifications to offer
a reliable opinion in the case under consideration.
The only physician who analyzed the CT scan is Dr.
Bruce, who was retained by the coal company as part of
these proceedings. The ALJ compared Dr. Bruce’s opinions
with Stein’s medical history and the myriad of x-rays,
spirometry, pulmonary function and blood gas test results,
as well as the countervailing medical opinions of two qual-
ified B-readers (Dr. Pathak and Dr. Mathur (who is also
a board certified radiologist)) and found that Dr. Bruce’s
opinion was unreliable, stating that “[h]e possesses no
special qualifications in the field of radiology and has no
particular training or certification in examining . . . CT
scans.” Although the ALJ recognized that Dr. Bruce has
otherwise impressive credentials, the judge noted that she
was unpersuaded by the evidence proffered to establish that
Dr. Bruce is experienced in examining CT scans for the
diagnosis of legal pneumoconiosis. Accordingly, the judge
ruled that Dr. Bruce’s “opinion regarding the presence or
absence of pneumoconiosis on any film is given very little
weight,” and we agree that this opinion is supported by the
record.
As of this date, the Department of Labor has not issued
guidelines for ALJs to follow when assessing the reliability
of a physician’s interpretation of a CT scan. In the absence
of controlling statutory language or guidance from the
agency, we defer to well-reasoned and well-documented de-
cisions rendered by ALJs resolving the issues before them.
We will affirm the judge’s decision to award benefits unless
14 No. 01-3315
her analysis is irrational or unlawful. See Director v. Mid-
land Coal Co., 855 F.2d 509, 512 (7th Cir. 1988) (deferring
to ALJ’s own methodology when comparing the working
conditions of surface miners and underground miners);
Eastern Assoc’d Coal Corp. v. Director, 220 F.3d 250, 259
(4th Cir. 2000) (same when determining if miner has “mas-
sive lesions” in the lungs).
In this case, Judge Neal expressed legitimate concerns
about the coal company’s failure to lay a proper founda-
tion from which she could rationally conclude that Dr.
Bruce was qualified to interpret Stein’s CT scan. Although
agencies are not bound by the evidentiary strictures of
Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579
(1993), litigants must still satisfy the ALJ that their experts
are qualified by knowledge, training, or experience to, and
have in fact applied recognized and accepted medical prin-
ciples in a reliable way. McCandless, 255 F.3d at 468-49;
accord Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999);
GE Co. v. Joiner, 522 U.S. 136 (1997).
Our research reveals that CT scans are typically read by
radiologists (some of whom may in addition be classified as
B-readers) who have specialized knowledge and have
developed a certain expertise through years of training and
experience interpreting this particular test. See, e.g., J.F.
Wiot & O. Linton, The Radiologist and Occupational Lung
Disease, 175(2) AM. J. ROENTGEN. 311 (2000); Kim, supra; G.
Kepler, Clinical Overview of Occupational Lung Disease,
30(6) RADIOL. CLIN. N. AM. 1121 (1992). Thus, it is of signif-
icance that Dr. Bruce is neither a qualified B-reader nor
a board certified radiologist. It may very well be possible
for a coal company to establish that a pulmonologist has
the knowledge, training, and experience to review a CT
scan and reliably discuss whether the test discloses the
presence of legal pneumoconiosis, but in this case Consol
failed to qualify Dr. Bruce as such an expert. Nothing in
this record conclusively establishes that Dr. Bruce has any
No. 01-3315 15
experience or training with reading CT scans for the pres-
ence of legal pneumoconiosis (as opposed to other occupa-
tional diseases) or for purposes of diagnosis (as opposed to
treatment). Nor did the coal company explain whether Dr.
Bruce followed standard medical procedures when he ex-
amined Stein’s CT scan, much less describe what those pro-
cedures might be. We refuse to hold that it was improper
for Judge Neal to conclude that Dr. Bruce’s opinions were
unreliable. Furthermore, we decline to disturb Judge Neal’s
decision to invoke the presumption that Stein is totally dis-
abled by pneumoconiosis.
B.
Because the ALJ properly found that Stein is eligible for
black lung benefits, Consol was required to rebut this pre-
sumption by proving that: (1) Stein’s disability was not
caused by pneumoconiosis; (2) Stein is not, in fact, totally
disabled; or (3) Stein’s work experience did not contribute
to or aggravate his disability in any material respect. 20
C.F.R. § 718.204(c); 65 Fed. Reg. at 79,946 (citing Compton
v. Inland Steel Coal Co., 933 F.2d 477, 481-83 (7th Cir.
1991)). The coal company attempted to establish that
Stein’s disability resulted entirely from chronic obstructive
bronchitis induced by cigarette smoking. Thus, the bur-
den was on the coal company to demonstrate that Stein’s
daily work-related exposure to coal dust over a period of
eleven years “made only a negligible, inconsequential or
insignificant contribution to [his] disability.” 65 Fed. Reg.
at 79,923; see also Summers, 272 F.3d at 482-83 (discussing
burden of persuasion). The record speaks for itself and we
are convinced that the ALJ’s determination that the coal
company failed to meet its burden of proof was proper.
Consol relies on the testimony of Dr. Bruce, who observed
that Stein has a history of asthma and over the years was
prescribed numerous medications for the treatment of
bronchitis. Dr. Bruce noted that bronchodilator therapy re-
16 No. 01-3315
versed much of Stein’s breathing problems and assisted
in controlling his asthmatic episodes. Dr. Bruce also tes-
tified that Stein’s pulmonary function reports, x-ray tests,
and blood gas results were consistent with bronchitis rath-
er than pneumoconiosis. He stated that he reviewed nota-
tions from an inpatient hospital chart, written in September
1991, describing Stein as a “heavy smoker.” He further sug-
gested that the slight presence of carboxyhemoglobin in
Stein’s oxygen saturation tests indicated that Stein was
still smoking in May 1995, when he underwent his most
recent physical examination. Thus, on the basis of these
observations, Dr. Bruce concluded that smoking was the
cause of Stein’s suffering from chronic obstructive bronchi-
tis and that coal mining failed to contribute to Stein’s
disability.
Dr. Robert A.C. Cohen disagreed with this conclusion. Dr.
Cohen is a member of the faculty at the University of
Illinois Medical School in Chicago and is board certified
in internal medicine with a subspecialty in pulmonary dis-
eases. Dr. Cohen responded to Dr. Bruce by pointing out
that Stein and his treating physicians all averred that
Stein quit smoking in the early 1970s. Dr. Cohen further
testified that Stein’s marginally depressed oxygen satura-
tion rate “in no way proves” that Stein is a smoker, for the
saturation of hemoglobin within the body is affected by
numerous environmental factors (such as the patient’s
exposure to second-hand smoke or automobile fumes) and
numerous physiological factors (such as the patient’s body
temperature, pH levels, and type of hemoglobin).
Dr. Cohen also testified, in opposition to Dr. Bruce, that
Stein’s substandard response to bronchodilator therapy
indicated that he suffers from pneumoconiosis as well as
obstructive lung diseases. Relying on the records of Stein’s
treating physician, Dr. Cohen deemed it significant that
Stein had been hospitalized on several occasions for what
doctors at downstate Illinois hospitals diagnosed as “asth-
No. 01-3315 17
ma of unknown cause.” He stated that it is all too common
for physicians to make such misdiagnoses—rather than
diagnosing black lung disease—either because they are
unaware of the miner’s occupational exposures or because
they are unfamiliar with recent literature and studies
documenting the relationship between coal dust exposure
and obstructive lung diseases. Accordingly, after a review
of Stein’s complete medical history, Dr. Cohen concluded
that Stein’s “eleven years of coal mine employment signifi-
cantly contributed to the development of obstructive lung
disease,” that Stein’s “tiny exposure to tobacco may also
have been contributory to the development of his . . . dis-
ease,” and that Stein is totally disabled by legal pneumoco-
niosis. 20 C.F.R. § 718.201.
Consolidation Coal claims that “Dr. Cohen’s opinions are
not well reasoned and should not have been adopted by the
ALJ.” This argument is doomed to fail, for in black lung ad-
judications, the decision of whether a medical opinion is
reasoned is a decision that rests ultimately with the ALJ,
not with us. Summers, 272 F.3d at 483.
Dr. Cohen is the director of the Black Lung Clinics Pro-
gram at Cook County Hospital in Chicago and is a respected
advisor to the HHS-funded National Coalition of Black
Lung and Respiratory Disease Clinics. He is qualified as
a B-reader, has published numerous articles dealing with
occupational health diseases, and is in regular contact with
other doctors from around the nation seeking consulta-
tions and evaluations from him concerning their patients.
Thus, as we have previously recognized, it is “rational to
give great weight to Dr. Cohen’s views, particularly in light
of his remarkable clinical experience and superior knowl-
edge of cutting-edge research.” Id. Moreover, there is “over-
whelming scientific and medical evidence” supporting
Dr. Cohen’s opinion that exposure to coal dust can cause,
aggravate, or contribute to obstructive lung diseases. 65
Fed. Reg. at 79,944 (citing Freeman United Coal Mining Co.
18 No. 01-3315
v. OWCP, 957 F.2d 302, 303 (7th Cir. 1992); Old Ben Coal
Co. v. Prewitt, 755 F.2d 588, 591 (7th Cir. 1985)).
The petitioner makes the argument, based on a founda-
tion of quicksand, that Dr. Cohen and the ALJ ignored evi-
dence purportedly establishing that Stein is a “heavy smok-
er” who has smoked a half pack of cigarettes each week
since the early 1970s. The petitioner, however, failed to sub-
mit an appendix or properly identify what portions of the
record bolster this claim, and after a thorough review, we
have been unable to locate such documentation in this
record. Thus, Consol’s “heavy smoker” argument is waived.
LSF Transp. Inc. v. NLRB, 282 F.3d 972, 975 n.1 (7th Cir.
2002) (cautioning appellants “that they should not expect
the court to peruse the record without the help of pinpoint
citations”).
In any event, unlike the coal company’s haphazardly pre-
pared pleadings, Stein’s briefs have meticulously pointed
us to several portions of the record confirming that his
smoking history is limited to his first two years of high
school, when he smoked no more than one or two cigarettes
a week from 1970-72. During the administrative hearing
in this case, for example, Stein was asked: “Did you ever
smoke after high school?” and he responded, “No. . . . If I lit
up a cigarette right now, they’d have to probably find me
an oxygen tank. It would just take everything away.” The
ALJ credited Stein’s poignant testimony on this issue,
rejected the coal company’s undocumented assertion that
Stein has “a smoking history of the level expected to cause
significant obstructive lung disease,” and proceeded to grant
Stein’s petition for benefits. The record contains spirometry,
blood gas, pulmonary function, and x-ray tests, along with
the opinions of three physicians (all of whom are B-read-
ers; one of whom is also a board certified radiologist) who
are in agreement that Stein has black lung disease. We are
convinced that there is ample support for Judge Neal’s
decision to award benefits and reject Dr. Bruce’s contrary
No. 01-3315 19
opinion that the CT scan trumps this plethora of evidence.
See, e.g., R&H Steel Bldgs. Inc. v. Director, 146 F.3d 514
(7th Cir. 1998).
IV.
Although James E. Stein was a healthy young man when
he first set foot upon Consolidated Coal Company’s prop-
erty, his work as a miner has left him with lungs that are
now full of poison. Stein, 48, breathes only with the help
of inhalers and a respiratory device. He can neither work
nor exercise; he passes his days brewing and drinking
coffee, watching television, and fishing in a small lake near
his modest home in Murphysboro, Ill. Judge Neal’s decision
to award black lung benefits is lawful, rational, and sup-
ported by substantial evidence. The order of the Board is
ENFORCED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-25-02