Southern Appalachian Coal Company v. Alan Adkins

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2286
SOUTHERN APPALACHIAN COAL COMPANY,
Petitioner,
v.
ALAN L. ADKINS; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(09-0841-BLA)
Argued: December 6, 2011 Decided: March 1, 2012
Before WILKINSON, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Wilkinson and Judge Floyd concurred.
ARGUED: David L. Yaussy, ROBINSON & MCELWEE, PLLC, Charleston,
West Virginia, for Petitioner. Ryan Christopher Gilligan,
WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS, Norton, Virginia, for
Respondents. ON BRIEF: Joseph E. Wolfe, WOLFE, WILLIAMS,
RUTHERFORD & REYNOLDS, Norton, Virginia, for Respondent Adkins.
Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:
Southern Appalachian Coal Company challenges the award of
benefits to Alan L. Adkins, a former coal mine employee, under
the Black Lung Benefits Act (“Act”). With this appeal, Southern
Appalachian essentially asks us to reweigh the evidence that was
before the Administrative Law Judge (“ALJ”) and come to a
different conclusion. But this we may not do. Accordingly, we
affirm the award of benefits to Adkins.
I.
Adkins spent fifteen years employed in coal mining. During
that employment, Adkins worked underground, including as a roof
bolt operator and a miner operator, both “dusty” jobs. J.A. 19,
20. Adkins also smoked cigarettes, from 1975 to 1990, which
roughly corresponds to his tenure as a miner.
Adkins developed problems with breathing and exhaustion
upon physical exertion. In June 2007, Adkins filed a claim for
black lung benefits under the Act. Southern Appalachian
contested, and a hearing was held. At the hearing, the ALJ had
before him, among other things, the following medical evidence:
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Dr. Randolph Forehand examined Adkins in August 2007 and
concluded that Adkins had pneumoconiosis. 1 Dr. Forehand stated,
among other things, that Adkins’s “coal mine dust exposure
resulted in a significant respiratory impairment . . . which
would prevent him from going back into the mines. Coal mine
dust exposure has led to legal coal workers’ pneumoconiosis
which has permanently and totally disabled him.” J.A. 73.
Dr. D.L. Rasmussen examined Adkins and concluded in May
2008 that, among other things, Adkins “has evidence to support a
diagnosis of legal pneumoconiosis. The patient has
pneumoconiosis, (i.e. COPD/emphysema caused in significant part
by coal mine dust exposure) which is a material contributing
cause of his disabling lung disease.” J.A. 77.
Dr. Glen Baker examined Adkins and reported in July 2008
that, among other things, “the patient does have a chronic lung
disease caused by his coal mine employment. This is based on
the presence of both clinical and legal pneumoconiosis.” J.A.
1
This Court has previously noted the “broad statutory
definition of pneumoconiosis as ‘a chronic dust disease of the
lung and its sequelae, including respiratory and pulmonary
impairments, arising out of coal mine employment[,]’” as well as
the regulatory definition of “legal pneumoconiosis” as “‘a
disease ‘arising out of coal mine employment’ includ[ing] any
chronic pulmonary disease resulting in respiratory or pulmonary
impairment significantly related to, or substantially aggravated
by, dust exposure in coal mine employment.’” Gulf & Western
Indus. v. Ling, 176 F.3d 226, 231 (4th Cir. 1999) (citations
omitted).
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88. Dr. Baker indicated that Adkins was only partially, i.e.,
not totally disabled, stating: “He would have a class 2 or a 10
to 25% impairment of the whole person. . . . This impairment is
related to his pneumoconiosis and possibly to some extent his
cigarette smoking history.” Id.Dr. George Zaldivar examined Adkins’s records in 2008 and
2009 and reported that Adkins did not have pneumoconiosis; Dr.
Zaldivar instead theorized that Adkins may have pulmonary
fibrosis caused by smoking. Dr. Zaldivar stated, “[m]y opinion
remains that Mr. Adkins does not suffer from coal workers’
pneumoconiosis nor coal dust induced lung disease . . . .” J.A.
112.
Dr. Kirk Hippensteel examined Adkins and Adkins’s records
in February 2009 and reviewed records again in May 2009 and
concluded that Adkins “does not have evidence of legal
pneumoconiosis . . . .” J.A. 219. Dr. Hippensteel concluded
that Adkins had bronchitis, allergies, and cardiac disease
unrelated to working in the mines.
After reviewing this medical evidence, the ALJ determined
that Adkins had pneumoconiosis caused at least in part by 15
years’ employment in coal mining, and found that he was totally
disabled. The ALJ therefore determined that Adkins was entitled
to benefits under the Act.
4
Southern Appalachian appealed to the Benefits Review Board.
A panel of three administrative appeals judges affirmed the
ALJ’s decision and order awarding benefits. The Benefits Review
Board determined that the ALJ’s decision and order “is rational,
supported by substantial evidence and in accordance with
applicable law.” J.A. 241. Southern Appalachian now appeals to
this Court.
II.
On appeal, Southern Appalachian argues that the ALJ failed
to: weigh all the evidence and consider certain medical opinions
when concluding that Adkins had pneumoconiosis; accurately
determine the length of Adkins’s coal mine employment; and
properly assess the cause of total disability. We address each
argument in turn. In so doing, “[w]e undertake an independent
review of the record, as in the place of the Board, to determine
whether the ALJ’s factual findings are based on substantial
evidence in the record. We review questions of law de novo.”
Toler v. E. Associated Coal Co., 43 F.3d 109, 114 (4th Cir.
1995) (citation omitted).
A.
Southern Appalachian first argues that the ALJ failed to
weigh all the evidence as to whether Adkins has legal
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pneumoconiosis and consider certain medical opinions in
concluding that Adkins has legal pneumoconiosis.
At the outset, we note that “[t]o establish entitlement to
benefits under the Act, a miner must prove that he has
pneumoconiosis, that the disease was caused by his coal mine
employment, and that he is totally disabled due to the disease.”
Doss v. Dir., Office of Workers’ Comp. Programs, 53 F.3d 654,
658 (4th Cir. 1995). On appeal, we do not undertake to re-weigh
conflicting evidence on these issues, make credibility
determinations, or substitute our judgment for that of the ALJ.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Rather,
“[w]here conflicting evidence allows reasonable minds to differ
. . . , the responsibility for that decision falls on the
Secretary (or the Secretary’s designate, the ALJ). The issue
before us, therefore, is not whether [the claimant has legal
pneumoconiosis], but whether the ALJ’s finding . . . is
supported by substantial evidence and was reached based upon a
correct application of the relevant law.” Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996) (quotation marks and citation
omitted).
In this case, the ALJ had several conflicting medical
reports before him. The one he chose to rely on most
extensively, that of Dr. Rasmussen, states, among other things,
that Adkins “has evidence to support a diagnosis of legal
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pneumoconiosis. The patient has pneumoconiosis, (i.e.
COPD/emphysema caused in significant part by coal mine dust
exposure) which is a material contributing cause of his
disabling lung disease.” J.A. 77. The ALJ did not err in
relying on this report, which he found credible because Dr.
Rasmussen explained that Adkins’s pulmonary disease was caused
by both coal dust and cigarette smoke exposure and that it was
impossible to separate the effects of the two.
Further, the main thrust of Dr. Rasmussen’s report, i.e.,
that Adkins had legal pneumoconiosis and that his lung
impairment was caused at least in significant part due to coal
dust exposure, was supported by Dr. Baker, who concluded in his
report that “the patient does have a chronic lung disease caused
by his coal mine employment. This is based on the presence of
both clinical and legal pneumoconiosis.” J.A. 88. Similarly,
Dr. Forehand concluded, in his report, that Adkins’s “coal mine
dust exposure resulted in a significant respiratory impairment .
. . which would prevent him from going back into the mines.
Coal mine dust exposure has led to legal coal workers’
pneumoconiosis which has permanently and totally disabled him.”
J.A. 73.
Southern Appalachian is certainly correct that reports from
Dr. Zaldivar and Dr. Hippensteel would have supported the
conclusion that Adkins did not have legal pneumoconiosis. Dr.
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Zaldivar stated in his report that “Mr. Adkins does not suffer
from coal workers’ pneumoconiosis nor coal dust induced lung
disease . . . .” J.A. 112. And Dr. Hippensteel concluded that
Adkins “does not have evidence of legal pneumoconiosis . . . .”
J.A. 219.
We cannot agree with Southern Appalachian, however, that
“the ALJ failed to consider the contrary opinions offered by
Drs. Hippensteel and Zaldivar . . . .” Appellant’s Br. at 15.
The ALJ summarized the reports of Drs. Hippensteel and Zaldivar,
just as he summarized the other doctors’ reports. The ALJ then
went on to discuss his determination as to the probative value
of the various reports, ultimately concluding, among other
things, that Dr. Rasmussen’s opinion was “more clearly explained
than those of Drs. Hippensteel and Zaldivar[]” and was “the most
rational in this record.” J.A. 232. The ALJ explained at some
length the basis for these findings. Further, nothing in the
ALJ’s opinion suggests, as Southern Appalachian claims, that the
ALJ impermissibly found that certain regulations created a
presumption that obstructive lung impairments are always due to
coal dust exposure. And finally, the ALJ did not err in
crediting Dr. Rasmussen with “extensive experience in pulmonary
medicine and in the specific area of coal workers’
pneumoconiosis.” Martin v. Ligon Preparation Co., 400 F.3d 302,
307 (6th Cir. 2005).
8
To be sure, the record shows evidence that would have
supported a contrary conclusion by the ALJ, i.e., that Adkins
did not suffer from pneumoconiosis and therefore was not
entitled to benefits. Nevertheless, there is substantial
support in this record for the conclusion that the ALJ did
reach. Under these circumstances, we are not free to second-
guess the ALJ. Craig, 76 F.3d at 589. We therefore reject
Southern Appalachian’s arguments regarding the ALJ’s weighing of
the evidence and failure to (sufficiently) consider the
conflicting medical reports.
B.
Southern Appalachian next argues that the ALJ did not
properly establish how long Adkins had worked as a miner,
despite the ALJ’s stating in his decision and order that he
“accept[s] the Claimant’s testimony that he has worked fifteen
years in coal mine employment.” J.A. 226. However, the Joint
Appendix pages to which Southern Appalachian cites do not
support its contention. Indeed, one of the two cited pages
establishes via Adkins’s sworn testimony that Adkins worked in
the coal mines from 1972 to 1987—i.e., fifteen years.
Despite Southern Appalachian’s contention that the ALJ
improperly relied on doctors’ reports to determine the length of
Adkins’s mine employment, the ALJ made clear that he relied not
9
on them, but rather on Adkins’s sworn testimony. That testimony
was an appropriate evidentiary source under 20 CFR §
725.101(a)(32)(ii), which states, in pertinent part, that “[t]he
dates and length of employment may be established by any
credible evidence including (but not limited to) company
records, pension records, earnings statements, coworker
affidavits, and sworn testimony.” Id. (emphasis added).
Southern Appalachian has provided this Court with no basis to do
anything other than affirm this aspect of the ALJ’s decision and
order.
C.
With its last argument, Southern Appalachian contends that
the ALJ “erred in his assessment of the cause of total
disability.” J.A. 20. Here, again, Southern Appalachian
essentially asks us to reweigh the evidence before the ALJ. And
as we have already made clear, we may not do so. Hays, 907 F.2d
at 1456. It is clear from the ALJ’s decision and order that he
thoroughly considered all of the medical reports before him and
found in favor of Adkins based on substantial evidence.
Further, to the extent that Southern Appalachian argues
that the ALJ mistakenly “referred to the cause of disability as
the claimant’s ‘significant restrictive pulmonary impairment’”
(Appellant’s Br. at 20), we fail to see the salience of this
10
mistake, assuming simply for the sake of argument that it is
one. After all, the ALJ unequivocally determined, based on
substantial evidence, that Adkins had legal pneumoconiosis,
caused at least in part by his prolonged mining employment, and
that Adkins was totally disabled as a consequence. See Doss, 53
F.3d at 658.
III.
In sum, the ALJ’s determination of legal pneumoconiosis and
length of mining employment were supported by substantial
evidence, and the ALJ weighed all the evidence and explained his
reasoning in reaching his determinations. Accordingly, we
affirm the decision of the Benefits Review Board to uphold the
ALJ’s determination.
AFFIRMED
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