Westmoreland Coal Co. v. Ramsey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WESTMORELAND COAL COMPANY, 
INCORPORATED,
Petitioner,
v.
JAMES R. RAMSEY; DIRECTOR,  No. 99-2049
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(98-692-BLA)
Argued: June 7, 2000
Decided: November 9, 2001
Before WIDENER, WILKINS, and WILLIAMS, Circuit Judges.
Petition denied and case remanded with instructions by unpublished
per curiam opinion.
COUNSEL
ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner. Helen Hart Cox, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents. ON BRIEF: Kathy L. Snyder, JACKSON & KELLY,
2 WESTMORELAND COAL v. RAMSEY
P.L.L.C., Morgantown, West Virginia, for Petitioner. Henry L.
Solano, Solicitor of Labor, Donald S. Shire, Associate Solicitor for
Black Lung Benefits, Patricia M. Nece, Counsel for Appellate Litiga-
tion, Richard A. Seid, Counsel for Administrative Litigation and
Legal Advice, Office of the Solicitor, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Respondent Director.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The employer, Westmoreland Coal Company (Westmoreland),
challenges the Benefits Review Board’s (the Board) decision uphold-
ing the Administrative Law Judge’s (ALJ) award of benefits under the
Black Lung Benefits Act (the Act), 30 U.S.C. § 901-945, to claimant
James R. Ramsey. For the reasons that follow, we deny Westmore-
land’s petition for review.
I.
Ramsey has worked in or around coal mines for 21 years. He first
worked for the Ames Mining Company from 1948 to 1956 operating
a machine cutting coal in the mines. In 1956, he left the coal industry
because the coal dust from the mines bothered him. In 1972 he
returned to the industry and worked as a hydraulic mechanic for
Westmoreland. While Ramsey did not work in the mines while per-
forming his last duties, he was still exposed to the coal dust on the
machines he was servicing and to the dust emitted from a nearby
preparation plant. Ramsey retired in 1985.
Ramsey filed his first claim for benefits under the Act with the
Department of Labor on December 9, 1987. The Board affirmed the
ALJ’s denial of this claim in 1992. Ramsey v. Westmoreland Coal
WESTMORELAND COAL v. RAMSEY 3
Co., BRB No. 90-1538 BLA (May 27, 1992). Ramsey then filed a
duplicate claim for benefits with the Department of Labor on August
31, 1992. This is the only claim at issue on this appeal.
Upon initial consideration of Ramsey’s duplicate claim, the district
director found that Ramsey was eligible for benefits and granted an
award on June 8, 1994. Westmoreland disagreed with this finding and
requested a hearing in front of an ALJ. Following the hearing, the
ALJ issued a decision denying Ramsey benefits under the Act after
finding that the evidence was insufficient to show that Ramsey suf-
fered from legal pneumoconiosis and that Ramsey was totally dis-
abled due to pneumoconiosis. Ramsey v. Westmoreland Coal Co., No.
94-BLA-1898 (Feb. 15, 1995).
Ramsey appealed the ALJ’s decision to the Board, and the Board
vacated the ALJ’s determination that the medical opinion evidence
was insufficient (1) to establish the existence of legal pneumoconiosis
and (2) to establish that Ramsey’s total disability was due to pneumo-
coniosis. Ramsey v. Westmoreland Coal Co., BRB No. 95-1186 BLA
(Oct. 26, 1995). The Board remanded the case to the ALJ for recon-
sideration of those two issues.* Medical evidence from at least 29
doctors, including Dr. Donald L. Rasmussen and Dr. George L. Zaldi-
var, was before the ALJ when she reconsidered Ramsey’s claim.
Upon examination of this medical evidence, the ALJ awarded benefits
after finding that Ramsey did have pneumoconiosis arising from his
coal mine employment and that Ramsey was totally disabled due to
his pneumoconiosis. Ramsey v. Westmoreland Coal Co., No. 94-
BLA-1898 (Aug. 22, 1996). In reaching this conclusion, the ALJ first
concluded that under 20 C.F.R. § 718.201 "any chronic pulmonary
disease will qualify as pneumoconiosis if it is either related to or
aggravated by coal mine dust exposure." The ALJ then found, primar-
ily relying on Dr. Rasmussen’s report, that Ramsey had chronic bron-
chitis/COPD as a result of coal mine dust exposure and "a minimal
amount of coal workers’ pneumoconiosis." The ALJ also relied on
Dr. Rasmussen’s report to find that legal pneumoconiosis was "a con-
tributing cause to his [Ramsey’s] total disability."
*The ALJ had already determined that the presumption in 20 C.F.R.
§ 718.203(b) that any pneumoconiosis arose out of coal mine employ-
ment applied and that Ramsey was totally disabled.
4 WESTMORELAND COAL v. RAMSEY
Once more, Westmoreland appealed to the Board, which remanded
the case to the ALJ again for further consideration of the evidence.
Ramsey v. Westmoreland Coal Co., BRB No. 96-1620 BLA (Sept. 26,
1997). The Board vacated the ALJ’s determination that Ramsey had
legal pneumoconiosis after finding that the ALJ’s weighing of the
medical evidence was flawed. The Board also vacated the finding that
Ramsey’s total disability was due to pneumoconiosis because the ALJ
improperly interpreted the medical evidence.
On remand, the ALJ once again found that Ramsey was entitled to
an award of benefits. Ramsey v. Westmoreland Coal Co., No. 94-
BLA-1898 (Jan. 27, 1998). The ALJ explained that the medical evi-
dence did support a finding of legal pneumoconiosis because Dr. Ras-
mussen’s report was entitled to significant weight in that it was better
reasoned and better supported. Dr. Rasmussen had examined Ramsey,
and Dr. Rasmussen provided support for his opinion. The ALJ went
on to explain why she found the other physicians’, including Dr. Zal-
divar’s, opinions less persuasive than Dr. Rasmussen’s. Among other
reasons were that Dr. Zaldivar did not adequately explain the reasons
for his conclusion; his findings in other specific respects differed from
those of other physicians; and Dr. Rasmussen’s findings were "well
reasoned, well supported . . . highly probative, and entitled to signifi-
cant weight."
Westmoreland timely appealed this latest determination by the ALJ
to the Board, which issued an opinion affirming the ALJ’s grant of
benefits to Ramsey. Ramsey v. Westmoreland Coal Co., BRB No. 98-
0692 BLA (Jun. 24, 1999). The main thrust of the Board’s opinion
addressed Westmoreland’s arguments that the ALJ erred in finding
that Ramsey suffered from legal pneumoconiosis as defined in the
regulations, 20 C.F.R. § 718, 202(a)(4). On these questions, the Board
found substantial evidence to support the ALJ’s opinion and deter-
mined that any errors made were harmless. Otherwise, the Board
affirmed the ALJ’s finding that Ramsey’s total disability was due to
pneumoconiosis because it found that Westmoreland did not chal-
lenge that issue on appeal.
Westmoreland appeals this most recent opinion of the Board and
asserts nine errors as follows: (1) the ALJ failed to explain why Dr.
Rasmussen’s opinion was more persuasive, (2) the ALJ erroneously
WESTMORELAND COAL v. RAMSEY 5
discredited several doctors’ opinions for opining that coal dust cannot
cause obstructive impairments, (3) the ALJ erroneously credited a
doctor’s diagnosis of pneumoconiosis based on a positive x-ray inter-
pretation after finding that x-ray evidence failed to show pneumoconi-
osis, (4) the ALJ’s determination that certain doctors’ opinions were
unreasoned was not supported by substantial evidence, (5) the ALJ
provided an erroneous basis for discrediting Dr. Zaldivar’s opinion,
(6) the ALJ incorrectly included all chronic pulmonary diseases
within the definition of pneumoconiosis, (7) the Board erred in deter-
mining that Westmoreland did not challenge the ALJ’s finding of
total disability due to pneumoconiosis on appeal, (8) the ALJ improp-
erly incorporated prior flawed findings of fact and did not re-analyze
the evidence, and (9) the ALJ erred in setting the date of onset of dis-
ability as the date Ramsey filed his second claim.
II.
We review the Board’s determinations to ensure that it properly
adhered to its own statutory standard of review. Dehue Coal Co. v.
Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995). The Board reviews the
ALJ’s findings of fact to determine whether they are supported by
substantial evidence. Dehue, 65 F.3d at 1193. Thus, in evaluating the
Board’s decision, we also review the record to determine whether
substantial evidence supported the ALJ’s findings of fact. Dehue, 65
F.3d at 1193. We review the Board’s legal conclusions de novo.
Dehue, 65 F.3d at 1193.
III.
After consideration of the briefs, record, and oral argument, we are
of opinion that no reversible error exists in this case, and we affirm
the decision of the Board for the reasons expressed in its opinion. We
note that issues one through five primarily concern the weight of evi-
dence and the credibility of witnesses. We decline to revisit those
assessments and find that substantial evidence in the record supports
the ALJ’s conclusions. Likewise, we find no errors of law or fact on
issues six, eight, or nine.
The last issue to consider is seven, in which Westmoreland takes
issue with the Board’s finding that Westmoreland did not challenge
6 WESTMORELAND COAL v. RAMSEY
the cause of disability as due to pneumoconiosis. In support of its
position, Westmoreland points to a single page in its brief before the
Board, a clause in which it argues that "the existence of coal workers’
pneumoconiosis and total disability due to pneumoconiosis are not
supported by evidence or the relevant case law." The Board treated
this in its 1999 opinion as challenging the existence of pneumoconio-
sis but not the cause finding. And its 1999 opinion treats existence
extensively, but not cause in the sense contested by Westmoreland.
Not enough of the proceedings before the Board are brought to our
attention by Westmoreland for us to find that the Board’s decision
found at footnote 2 on page 3 of its opinion (A. 319) is in error.
Therefore, we affirm the Board on this ground. Alternately, we will
treat the assignment of error as an argument that disability due to
pneumoconiosis is not established by the record.
On that point, we adopt the reasoning of the ALJ in footnote 8 on
page 9 of her opinion of January 30, 1998, which is as follows:
At the risk of belaboring this point, my reasoning was as fol-
lows: (1) Based upon the opinions of Drs. Loudon, Renn,
Stewart, Rasmussen, and Abraham, which I found to be
more persuasive than that of Dr. Zaldivar on the issue, the
Claimant established that he has COPD/chronic bronchitis;
(2) Based upon Dr. Rasmussen’s opinion, which I found to
be more persuasive than the other opinions, the Claimant
established that he has "legal pneumoconiosis", because his
COPD/chronic bronchitis was caused by coal mine dust
exposure; and (3) Based upon the opinions of Drs. Loudon,
Renn, Stewart, and Rasmussen, which I found to be more
persuasive than that of Dr. Zaldivar, the Claimant estab-
lished that his COPD/chronic bronchitis was a significant
contributing factor to his total disability. Using simple logic
and common sense, the Claimant has therefore established
that he has pneumoconiosis arising out of coal mine
employment.
A. 314.
We do not treat the brief of Westmoreland as raising any issue
under S.E.C. v. Chenery Corp., 318 U.S. 80 (1943).
WESTMORELAND COAL v. RAMSEY 7
Accordingly, the petition for review of Westmoreland must be
denied and the case remanded to the Board with directions that it see
to the award of benefits in favor of Ramsey.
PETITION DENIED AND REMANDED
WITH INSTRUCTIONS