Shuck v. Consolidation Coal Co.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GILES B. SHUCK, 
Petitioner,
v.
CONSOLIDATION COAL COMPANY;  No. 99-2521
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(98-1182-BLA)
Argued: December 8, 2000
Decided: February 13, 2001
Before WILLIAMS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: John Paggett Anderson, Princeton, West Virginia, for
Petitioner. Kathy Lynn Snyder, JACKSON & KELLY, Morgantown,
West Virginia, for Respondents. ON BRIEF: Mary Rich Maloy,
JACKSON & KELLY, P.L.L.C., Charleston, West Virginia, for
Respondent Consolidation Coal.
2 SHUCK v. CONSOLIDATION COAL CO.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Giles Shuck seeks review of the Benefits Review Board’s decision
and order affirming the administrative law judge’s denial of black
lung benefits pursuant to 30 U.S.C.A. §§ 901 et seq. (West 1986 &
Supp. 2000). Our review of the record discloses that the Board’s deci-
sion is based upon substantial evidence and is without reversible
error. Accordingly, we affirm the denial of Shuck’s benefits.
I.
Shuck worked for Consolidation Coal Company for forty-two
years, nineteen years of which were underground and twenty-one
years of which were above ground. For the last eight years of his
employment with Consolidation, Shuck was a railroad car driver,
which he testified required a substantial amount of climbing and
heavy lifting. In January 1981, Shuck retired due to breathing prob-
lems that he had been experiencing for several years that kept him
from being able to perform his required work. Shuck testified that he
smoked approximately one-half a pack of cigarettes every day for
approximately ten years.
On April 10, 1978, Shuck filed an application for black lung bene-
fits. The Department of Labor notified Shuck of an initial award
effective January 1982, and Consolidation appealed to an administra-
tive law judge. On October 3, 1986, the ALJ remanded the case to the
Office of the Deputy Commissioner for the parties to further develop
the facts and the claims. On May 28, 1987, after the parties clarified
the claims, the Department of Labor determined that Shuck was not
totally disabled by pneumoconiosis. Shuck requested and was granted
a full hearing on his claim before the ALJ.
Because Shuck’s claim was filed in 1978, the Secretary of Labor’s
SHUCK v. CONSOLIDATION COAL CO. 3
1
"interim regulations" apply. Section 203(a) provides that a claimant
who engaged in coal-mine employment for at least 10 years is entitled
to an "interim presumption" of eligibility for disability benefits if he
meets one of four medical requirements: (1) a chest x-ray establishes
the presence of pneumoconiosis;2 (2) ventilatory studies establish the
presence of any respiratory or pulmonary disease of a specified sever-
ity; (3) blood gas studies demonstrate an impairment in the transfer
of oxygen from the lungs to the blood; or (4) other medical evidence,
including the documented opinion of a physician exercising reason-
able medical judgment, establishes a totally disabling respiratory
impairment. 20 C.F.R. § 727.203(a)(1)-(4). Section 203(b) provides
that "all relevant medical evidence shall be considered" in the adjudi-
cation of a claim, and that the interim presumption is rebutted if the
evidence establishes: (1) that the claimant is doing his usual or com-
parable work; (2) that he is capable of doing such work; (3) that his
disability did not arise, even in part, out of coal-mine employment; or
(4) that he does not have pneumoconiosis. 20 C.F.R. § 727.203(b)(1)-
(4). Under 20 C.F.R. Part 727, a miner who engaged in coal mine
employment for at least ten years, as did Shuck, will be presumed to
be totally disabled due to pneumoconiosis if he can show a chest
roentgenogram (x-ray), biopsy, or autopsy establishing the existence
of pneumoconiosis. See 20 C.F.R. § 727.203(a)(1). If that medical
requirement can be shown, the burden switches to the employer to
rebut the presumption of total disability by showing that "the evi-
dence establishes that the total disability . . . of the miner did not arise
in whole or in part out of coal mine employment; or the evidence
establishes that the miner does not, or did not, have pneumoconiosis."
20 C.F.R. § 727.203(b)(3)-(4). The party bearing the burden of proof
under the applicable presumption must meet that burden by a prepon-
derance of the evidence. Mullins Coal Co. v. Director, 484 U.S. 135,
156-58 (1987).
1
The interim regulations apply to claims filed between July 1, 1973,
and April 1, 1980 and are located at 20 C.F.R. Part 727. See Pendleton
v. Director, 882 F.2d 101, 103 (4th Cir. 1989). The permanent regula-
tions apply to all claims filed after March 31, 1980 and are located at 20
C.F.R. Part 718.
2
Pneumoconiosis, or "black lung disease" is a "chronic dust disease of
the lung and its sequelae, including respiratory and pulmonary impair-
ments, arising out of coal mine employment." 20 C.F.R. § 727.202.
4 SHUCK v. CONSOLIDATION COAL CO.
On September 25, 1991, the ALJ found that Shuck failed to estab-
lish invocation of the interim presumption of pneumoconiosis under
§ 727.203(a)(1), (2), and (4). The Benefits Review Board affirmed the
ALJ’s findings as to (a)(2) and (4), but it vacated the ALJ’s findings
as to (a)(1) and remanded the case because the ALJ accorded greater
weight to the most recent x-ray interpretations.3 The Benefits Review
Board directed the ALJ to reweigh the x-ray evidence in light of
Adkins v. Director, 958 F.2d 49, 52 (4th Cir. 1992) (holding that more
recent x-rays that are read as negative for pneumoconiosis should not
be given greater weight than earlier x-rays simply by virtue of their
chronology).
The sole issue on remand was whether the presence of pneumoco-
niosis had been established pursuant to 20 C.F.R. § 727.203(a)(1).
The ALJ re-weighed the conflicting x-rays and decided to give more
deference to the x-rays that were taken by physicians who were quali-
fied both as B-readers4 and as Board-certified radiologists. There were
six dually-qualified negative readings and only one dually-qualified
positive reading. In addition to noting that the quantity of negative x-
3
Shuck challenges only the weighing of the evidence involving the x-
rays under § 727.203(a)(1) and not the Benefit Review Board’s initial
affirmance of the ALJ’s decision to deny benefits with respect to (a)(2)
and (a)(4). Accordingly, we need not address whether Island Creek Coal
Company v. Compton, 211 F.3d 203 (4th Cir. 2000), applies to 20 C.F.R.
§ 727, and, if so, whether the Benefits Review Board’s severance of
§ 727.203(a)(2) & (a)(4) from (a)(1) in its initial remand to the ALJ com-
ported with Compton’s directive to weigh all relevant medical evidence
together. See Compton, 211 F.3d at 211. We note, however, that the
Supreme Court has held that the statutory requirement to weigh all rele-
vant evidence, see 30 U.S.C.A. § 923(b), is satisfied in § 727.203 at the
rebuttal stage and, therefore, is not required to be satisfied at the invoca-
tion stage. Mullins Coal Co. v. Director, 484 U.S. 135, 149 (1987). In
this respect, the § 727 regulations differ from the § 718 regulations,
which were at issue in Compton. See Compton, 211 F.3d at 208-09.
4
A "B"-reader is a physician who has completed a course and passed
a proficiency examination conducted by the National Institute for Occu-
pational Safety and Health for reading pneumoconiosis on x-ray films.
See Stapleton v. Westmoreland Coal Co., 785 F.2d 424, 428 n.2 (4th Cir.
1986), rev’d on other grounds by Mullins Coal Co. v. Director, 489 U.S.
135 (1987).
SHUCK v. CONSOLIDATION COAL CO. 5
rays far outweighed the quantity of positive x-rays, the ALJ stated
that there was insufficient corroboration of the one dually-qualified
positive reading to support a finding of pneumoconiosis. Accordingly,
on May 3, 1994, the ALJ found that the preponderance of the evi-
dence did not support an interim presumption of pneumoconiosis
under § 727.203(a)(1). As an alternative ground for denying benefits,
the ALJ held that Consolidation had established proper rebuttal of
total disability under § 727.203(b).
On September 23, 1999, the Benefits Review Board upheld the
ALJ’s determination that invocation of the interim presumption of
pneumoconiosis was not established under § 727.203(a)(1) and, hav-
ing found that invocation was not established, declined to address
Shuck’s argument pertaining to rebuttal. On November 15, 1999,
Shuck filed a notice of appeal with this Court. He challenges the
denial of black lung benefits, claiming that he introduced sufficient
evidence to establish invocation of the interim presumption under
§ 727.203(a)(1).5
II.
A.
In reviewing decisions of the Benefits Review Board, we "review
only for errors of law, and to make certain that the Board adhered to
its statutory standard of review of factual determinations." Doss v.
Director, 53 F.3d 654, 658 (4th Cir. 1995) (internal quotation marks
omitted). We must affirm the Benefits Review Board "if [the Board]
properly determined that the ALJ’s findings are supported by substan-
tial evidence, keeping in mind that a reviewing body may not set
aside an inference merely because it finds the opposite conclusion
more reasonable or because it questions the factual basis." Id. at 659(internal quotation marks omitted); see also Dehue Coal Co. v. Bal-
5
Shuck also appeals the ALJ’s alternative ground for denying benefits
— that Consolidation established proper rebuttal of total disability under
§ 727.203(b). The Benefits Review Board did not address this rationale
in affirming the ALJ, so we are unable to resolve this issue under the
Chenery doctrine even if we were so inclined. See Securities and
Exchange Comm’n v. Chenery Corp., 318 U.S. 80, 94-95 (1943).
6 SHUCK v. CONSOLIDATION COAL CO.
lard, 65 F.3d 1189, 1195 (4th Cir. 1995) (noting that appellate court
"must affirm the ALJ’s factual findings and weighing of the medical
evidence where these conclusions . . . are supported by substantial
evidence"). "Substantial evidence" requires "more than a mere scin-
tilla," but only "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Milburn Colliery Co. v.
Hicks, 138 F.3d 524, 528 (4th Cir. 1998) (internal quotation marks
omitted); see also Doss, 53 F.3d at 659 (citing Richardson v. Perales,
402 U.S. 389, 401 (1971)). We "appl[y] the same standard of review,
including substantial evidence as to fact findings, as does the [Bene-
fits Review Board]" when reviewing the underlying decision of the
ALJ. Kellough v. Heckler, 785 F.2d 1147, 1150 n.3 (4th Cir. 1986).
A review for substantial evidence does not involve re-weighing con-
flicting evidence, making credibility determinations, or substituting
our judgment for that of the ALJ. See Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
B.
Shuck argues that the ALJ improperly weighed conflicting x-ray
interpretations. Because we believe that substantial evidence supports
the ALJ’s determination, we affirm the Benefits Review Board’s deci-
sion that the ALJ properly acted within his discretion when the ALJ
determined that Shuck did not establish an interim presumption of
pneumoconiosis under § 727.203(a)(1).
Since 1974, approximately twelve x-ray films have been taken of
Shuck’s lungs.6 Approximately twenty doctors have evaluated the
various x-ray films and offered their conflicting interpretations as to
the presence or absence of pneumoconiosis. Shuck argues that the
ALJ was required to credit the opinions of doctors who read Shuck’s
x-rays as positive for pnuemoconiosis and to discredit the opinions of
the physicians who ruled out the presence of pneumoconiosis or a dis-
abling respiratory impairment. We disagree.
When, as in this case, the ALJ is presented with conflicting medi-
cal evidence and conflicting expert opinions, we recognize that "it is
6
The most recent x-ray was taken on June 1, 1988.
SHUCK v. CONSOLIDATION COAL CO. 7
the province of the ALJ to evaluate the physicians’ opinions." Island
Creek Coal Co. v. Compton, 211 F.3d 203, 211 (4th Cir. 2000). Of
course, in evaluating such opinions and ultimately reaching its deci-
sion, the ALJ is required by statute to articulate his "findings and con-
clusions, and the reasons or basis therefor, on all the material issues
of fact, law, or discretion presented on the record." 5 U.S.C.A.
§ 557(c)(3)(A) (West 1996). The ALJ complied with this obligation
by expressly stating that he accorded more weight to those physicians
who were dually-qualified "B"-readers and Board-certified radiolo-
gists. His decision to accord greatest weight to those physicians with
superior qualifications in interpreting x-rays of pneumoconiosis was
a rational means by which to differentiate between the quality of the
x-ray interpretations presented. See Adkins v. Director, 958 F.2d 49,
52 (4th Cir. 1992) ("A primary method of evaluating the reliability of
an expert’s opinion is of course his expertise . . . .").
Of the twenty or so physicians who interpreted Shuck’s x-rays,
seven had dual qualifications. Among the dually-qualified readers,
only one, Dr. Williams, found an x-ray to indicate the presence of
pneumoconiosis. Importantly, the ALJ did not simply weigh the quan-
tity of evidence to determine whether Shuck established an invocation
of pneumoconiosis. See Mullins Coal Co. v. Director, 484 U.S. 135,
148 n.23 (1987) ("The ALJ’s task is, of course, to weigh the quality,
and not just the quantity, of the evidence, before determining whether
the presumption has been invoked."). Instead, the ALJ relied upon the
fact that Dr. Williams’s positive x-ray interpretation lacked corrobo-
ration. Insofar as Dr. Williams was the only dually-qualified reader
to interpret Shuck’s x-ray to indicate pneumoconiosis, it was proper
for the ALJ to discredit his interpretation for lack of corroboration.
This is particularly true where the contrary position, that Shuck’s x-
ray was negative for pneumoconiosis, was corroborated by several
other physicians. Accordingly, we believe that the ALJ acted ratio-
nally and within his discretion by crediting the reports of those
dually-qualified physicians whose readings were sufficiently corrobo-
rated.
Shuck argues, however, that Dr. Williams’s opinion was corrobo-
rated, in that three of the dually-qualified physicians interpreted
Shuck’s x-ray as demonstrating a profusion level of 0/1 but ultimately
concluded that the x-ray was negative for pneumoconiosis. In light of
8 SHUCK v. CONSOLIDATION COAL CO.
the readings of 0/1, Shuck argues that the ALJ erred by refusing to
credit these readings as positive for minimal pneumoconiosis. If the
ALJ had credited these readings as positive, Dr. Williams’s finding
would have been corroborated by other dually-qualified physicians,
which in turn would render the ALJ’s stated reason for concluding
that Shuck did not suffer from qualifying pneumoconiosis insuffi-
cient.
In support of his position that a 0/1 reading must be treated as posi-
tive for minimal pneumoconiosis, Shuck points to Grigg v. Director,
28 F.3d 416 (4th Cir. 1994), and Whicker v. United States Dep’t of
Labor, 733 F.2d 346 (4th Cir. 1984), overruled on other grounds by
Mullins, 484 U.S. 135. Shuck claims that in Grigg and Whicker, this
Circuit promulgated rules establishing the proper method of diagnos-
ing pneumoconiosis. Shuck further argues that these cases stand for
the proposition that the ALJ must discredit medical opinions in which
the physician finds no pneumoconiosis if that physician has submitted
a reading of 0/1. Shuck’s reliance upon Grigg and Whicker is mis-
placed.
In Grigg, this Court did not create a rule for diagnosing pneumoco-
niosis under 20 C.F.R. § 727.203(a)(1). To the contrary, Grigg did not
address invocation; rather, it analyzed the rebuttal of the interim pre-
sumption pursuant to § 727.203(b)(3). In Grigg, the ALJ determined
that the x-ray evidence was sufficient to establish the existence of
pneumoconiosis pursuant to § 727.203(a)(1), a finding that was not in
dispute. See Grigg, 28 F.3d at 418. The Department of Labor argued,
however, that the ALJ erred by refusing to find that the presumption
of disability was properly rebutted because Grigg’s disability " ‘did
not arise in whole or in part out of [his] coal mine employment.’" Id.
at 418 (quoting 20 C.F.R. § 727.203(b)(3)). To support a finding of
no causal relationship between the disability and the coal mine
employment, the Department of Labor argued that the ALJ should
have relied upon a physician’s opinion in which the physician based
his finding of no pulmonary impairment on the premise that Grigg’s
x-ray did not demonstrate pneumoconiosis. Because the ALJ rejected
the physician’s underlying premise and found that Grigg’s x-ray did
demonstrate pneumoconiosis, we held that the ALJ should not then
rely upon the physician’s erroneously-based opinion to establish
rebuttal.
SHUCK v. CONSOLIDATION COAL CO. 9
Similarly, in Whicker v. United States Dep’t of Labor, 733 F.2d
346 (4th Cir. 1984), overruled on other grounds by Mullins, 484 U.S.
135, the proper means of diagnosing pneumoconiosis to establish
invocation of the interim presumption was not at issue. Instead, we
addressed the issue of whether non-qualifying test results can be used
as the principal or exclusive means of rebutting an interim presump-
tion of pneumoconiosis, and we held that they could not. See id. at
349. We did not, as Shuck’s argument suggests, hold that an x-ray
reading of 0/1 constitutes a positive reading for pneumoconiosis.
Accordingly, neither Grigg nor Whicker mandate that an ALJ must
treat a 0/1 reading as positive for minimal pneumoconiosis. In fact,
the relevant regulations provide that x-ray readings of 0/1 do not con-
stitute evidence of pneumoconiosis. See 20 C.F.R. § 410.428 ("A
chest roentgenogram (X-ray) classified under any of the foregoing
classifications as Category 0, including subcategories 0/-, 0/0, or 0/1
under the UICC/Cincinnati (1968) Classification, is not accepted as
evidence of pneumoconiosis."); 20 C.F.R. § 727.203(a)(1) (stating
that 20 C.F.R. § 410.428 applies to determinations under
§ 727.203(a)(1)). As such, we believe the ALJ’s decision was in
accordance with the applicable law and regulations.
III.
As the Benefits Review Board held, substantial evidence supports
the ALJ’s determination that Shuck failed to establish invocation of
an interim presumption of pneumoconiosis under 20 C.F.R.
§ 727.203(a)(1). The ALJ properly considered the physicians’ qualifi-
cations and the lack of corroboration when deciding among the physi-
cians’ conflicting x-ray interpretations. When substantial evidence
supports the ALJ’s finding, we will not undertake to re-weigh con-
flicting medical opinions. See Doss v. Director, 53 F.3d 654, 658 (4th
Cir. 1995) (establishing that we review only for errors of law and
defer with respect to findings of fact and weighing of evidence).
Accordingly, the judgment of the Benefits Review Board is affirmed.
AFFIRMED