Stalcup, Donald D. v. Peabody Coal Company ( 2007 )


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  •                             In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 06-1250
    DONALD D. STALCUP,
    Petitioner,
    v.
    PEABODY COAL COMPANY and
    DIRECTOR, OFFICE OF WORKERS’
    COMPENSATION PROGRAMS,
    Respondents.
    ____________
    Petition for Review of an Order of the
    Benefits Review Board.
    No. 05-BLA-0482
    ____________
    ARGUED OCTOBER 18, 2006—DECIDED FEBRUARY 15, 2007
    ____________
    Before POSNER, EVANS, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. Donald D. Stalcup worked as a
    coal miner at Peabody Coal Company for approximately
    thirty years. In 1997 he filed for pneumoconiosis (or “black
    lung”) benefits under the Black Lung Benefits Act, 
    30 U.S.C. §§ 901-944
    . An Administrative Law Judge (“ALJ”)
    initially awarded Stalcup benefits, but on appeal, the
    Benefits Review Board (“BRB”) vacated and remanded
    the decision because the ALJ mischaracterized relevant
    evidence, relied upon impermissible criteria to credit or
    discredit evidence, and failed to explain the bases for
    certain conclusions. The ALJ’s second decision, which
    2                                              No. 06-1250
    again awarded benefits to Stalcup, also was vacated and
    remanded by the BRB because of errors. The ALJ’s third
    decision, which denied benefits, is the subject of this
    appeal. The BRB affirmed that decision, finding it was
    supported by substantial evidence. We disagree.
    The BRB instructed the ALJ to reconsider three issues
    on its second remand: (1) the medical opinion evidence
    surrounding the existence of pneumoconiosis, (2) whether
    Stalcup is “totally disabled” based on this medical opinion
    evidence, and (3) whether the disability is due to pneumo-
    coniosis. As to the first issue, five reliable medical opin-
    ions were before the ALJ. The ALJ concluded the quali-
    fications and expertise of each physician were equal and
    held: “Drs. Castle, Tuteur and Dahhan found no pneumo-
    coniosis, while Drs. Cohen and Koenig found the existence
    of the disease. Because these opinions are entitled to
    equal weight, I now find that [Stalcup] has not estab-
    lished the existence of pneumoconiosis.”
    As to the second issue, the ALJ stated that even if
    Stalcup could establish pneumoconiosis, he is not totally
    disabled under 
    20 C.F.R. § 718.204
    (b) (2006). The ALJ
    assigned the most probative weight to opinions from Drs.
    Cohen, Koenig, and Castle; Drs. Cohen and Koenig believe
    Stalcup is totally disabled and Dr. Castle does not. Thus,
    the ALJ concluded, “the weight of the reliable medical
    evidence, alone, is in favor of finding total disability.”
    Citing other types of evidence in the record, however, the
    ALJ determined Stalcup was not totally disabled. Based
    on these conclusions, there was no need for the ALJ to
    reach the third issue.
    We review the final decision of the ALJ to determine
    whether it is rational, supported by substantial evidence,
    and consistent with controlling law. Blakley v. Amax Coal
    Co., 
    54 F.3d 1313
    , 1318 (7th Cir. 1995) (citations omitted).
    This Court is “not authorized to affirm an administrative
    No. 06-1250                                               3
    decision that is not reasoned.” Sahara Coal Co. v. Fitts, 
    39 F.3d 781
    , 783 (7th Cir. 1994). The importance of this rule
    is especially clear in the context of black lung claims,
    which often turn on science and involve conflicting med-
    ical opinions. We have said that a “scientific dispute
    must be resolved on scientific grounds.” Peabody Coal Co.
    v. McCandless, 
    255 F.3d 465
    , 468 (7th Cir. 2001). This
    requires the ALJ to “articulate a reason and provide
    support for favoring one opinion over another.” Livermore
    v. Amax Coal Co., 
    297 F.3d 668
    , 672 (7th Cir. 2002). More
    specifically, an ALJ “must have a medical reason for
    preferring one physician’s conclusion over another’s.”
    McCandless, 
    255 F.3d at 469
     (emphasis added). Accord-
    ingly, when an ALJ is faced with conflicting evidence
    from medical experts, he cannot avoid the scientific con-
    troversy by basing his decision on which side has more
    medical opinions in its favor. Fitts, 
    39 F.3d at 782
    . This
    unreasoned approach, which amounts to nothing more
    than a “mechanical nose count of witnesses,” 
    id.,
     would
    promote a quantity-over-quality approach to expert
    retention, requiring parties to engage in a race to hire
    experts to insure victory.
    In this case, the ALJ counted noses. He concluded the
    qualifications and expertise of the physicians are equal
    and then dodged the scientific controversy by counting
    the reliable physicians on each side. Because Peabody
    had more, it won. Nowhere does the ALJ indicate why
    the opinions of Drs. Castle, Tuteur, and Dahhan (finding
    no pneumoconiosis) are more persuasive than the con-
    trary opinions of Drs. Cohen and Koenig. Nor did the
    ALJ explain why the medical opinion finding no disability
    was ultimately more persuasive than the opinions find-
    ing total disability or explain why the other record evi-
    dence was sufficient to overcome the opinions of Drs.
    Cohen and Koenig. Because we cannot resolve the medical
    4                                            No. 06-1250
    dispute on our own, McCandless, 
    255 F.3d at 469
    , the case,
    regrettably, must be remanded for a fourth decision.
    The BRB’s order is vacated, and the case is remanded
    for further proceedings consistent with this order.
    VACATED AND REMANDED.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—2-15-07