Sewell Coal Company v. O'Dell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SEWELL COAL COMPANY, 
Petitioner,
v.
GILMER O’DELL; DIRECTOR,  No. 00-2253
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order of the
Benefits Review Board.
(99-285-BLA)
Argued: June 6, 2001
Decided: July 26, 2001
Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge, and
Andre M. DAVIS, United States District Judge for the
District of Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner. Roger Dale Forman,
FORMAN & CRANE, L.C., Charleston, West Virginia, for Respon-
dent O’Dell; Michelle Seyman Gerdano, Office of the Solicitor,
2 SEWELL COAL CO. v. O’DELL
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent Director. ON BRIEF: Kathy L. Snyder, JACKSON
& KELLY, 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 Litigation, Office of the Solicitor, UNITED STATES
DEPARTMENT 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Unpublished opinions are not binding precedent in this circuit.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:
Sewell Coal Company ("Sewell") appeals the decision of the Bene-
fits Review Board ("Board") affirming an administrative law judge’s
("ALJ") decision to award black lung benefits to Gilmer O’Dell
("O’Dell"), a former coal miner, pursuant to the Black Lung Benefits
Act ("the Act") as amended, 30 U.S.C. §§ 901-945. We affirm.
I.
O’Dell worked as a West Virginia coal miner for approximately 35
years. For the last 25 of those years, he was employed by Sewell.
During the last four or five years of his employment with Sewell,
O’Dell worked as a car trimmer, a job requiring hard manual labor
and significant exposure to dust. Thereafter, O’Dell began experienc-
ing respiratory problems, dizziness and severe pain in the inner ear.
He retired on November 27, 1979. During his career as a coal miner,
O’Dell smoked about one pack of cigarettes per day.
On December 12, 1979, O’Dell filed an application for federal
black lung benefits pursuant to the Act. The Office of Workers’ Com-
pensation Programs in the U.S. Department of Labor ("OWCP") iden-
SEWELL COAL CO. v. O’DELL 3
tified Sewell as the responsible coal mine operator for any benefits
due, and issued a notice of initial finding on October 8, 1980, advis-
ing Sewell of its right to contest the claim by filing a controversion
within 30 days. Sewell did not file its controversion until November
25, 1980, about 18 days after the deadline. The controversion, accom-
panied by a letter from Sewell’s counsel explaining the delay, was
ultimately accepted. The Director of OWCP ("the Director") thereaf-
ter considered evidence submitted by both parties and sustained
O’Dell’s claim. Sewell disputed the award and requested a hearing
before the Office of Administrative Law Judges. A hearing was even-
tually conducted and, on November 30, 1989, ALJ Feldman issued an
award of benefits.
In the ensuing 11 years, Sewell appealed four times to the Board.
Each time, the Board affirmed in part, vacated in part, and remanded
for further consideration and each time, on remand, ALJ Feldman—
and later ALJ Levin (after ALJ Feldman retired)—again awarded
benefits. Finally, on July 31, 2000, the Board affirmed the award.
Sewell, the petitioner, filed a timely appeal. We have jurisdiction pur-
suant to § 21(c) of the Longshore and Harbor Workers’ Compensation
Act, 33 U.S.C. § 921(c), incorporated by reference in § 422(a) of the
Black Lung Benefits Act, 30 U.S.C. § 932(a). Respondents are
O’Dell, the claimant, and the Director, a party-in-interest.
II.
Prolonged exposure to coal dust has subjected hundreds of thou-
sands of coal miners to pneumoconiosis—a serious and progressive
pulmonary condition popularly known as "black lung." Mullins Coal
Co. v. Director, OWCP, 484 U.S. 135, 138 (1987). The tragic conse-
quences of this crippling illness prompted Congress to enact Title IV
of the Federal Coal Mine Health and Safety of Act of 1969, a precur-
sor to the Black Lung Benefits Act and its amendments ("the Act").
These statutes, along with the regulations promulgated thereunder,
collectively prescribe the federal benefits program for black lung vic-
tims. Id.Part C of this program, 30 U.S.C. §§ 931 et seq., governs claims
filed on or after July 1, 1973. Such claims are paid by private employ-
ers or by a fund to which the employers contribute. Id. at 139. Under
4 SEWELL COAL CO. v. O’DELL
Part C of the program, claims filed before and after April 1, 1980, are
treated differently. Claims filed before April 1, 1980, such as the
claim in the instant case, are governed by "interim regulations," 20
C.F.R. § 727, while claims filed after that date are governed by "per-
manent criteria," 20 C.F.R. §§ 718, 725.4(a). Id.Under the interim regulations, claimants who have engaged in coal
mine employment for at least 10 years are presumed eligible for black
lung benefits if one of the following medical requirements is met: (1)
a chest x-ray establishes the presence of pneumoconiosis; (2) ventila-
tory studies establish the presence of a respiratory or pulmonary
disease—not necessarily pneumoconiosis—of a specified severity; (3)
blood gas studies demonstrate the presence of 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
reasonable medical judgment, establishes the presence of a totally dis-
abling respiratory impairment. 20 C.F.R. § 727.203(a); Mullins Coal
Co., 484 U.S. at 141-42.
Once a presumption of entitlement is established under the interim
regulations, the burden of proof shifts to the employer. A presumption
is rebutted if the employer proves one of the following: (1) the claim-
ant is, in fact, doing his usual or comparable work; (2) the claimant
is capable of doing his usual or comparable work; (3) total disability
did not arise in whole or in part out of coal mine employment; or (4)
the claimant does not have pneumoconiosis. 20 C.F.R. § 727.203(b);
Mullins Coal Co., 484 U.S. at 143-44.
III.
Between 1980 and 1989, O’Dell underwent a series of medical
examinations. This appeal revolves around the interpretations of 15
chest x-rays and the assessments of six physicians. The central issue
is whether Sewell has successfully rebutted the interim presumption
of entitlement by proving that O’Dell does not have pneumoconiosis.
A brief summary of each doctor’s assessment follows:
1. Dr. Eakle: Dr. Eakle is O’Dell’s treating physician. He examined
O’Dell on August 5, 1980 and noted a history of pleurisy, wheezing,
arthritis, and heart disease. He diagnosed pneumoconiosis, Category
SEWELL COAL CO. v. O’DELL 5
q, emphysematous bullae, and kerley b lines. His diagnosis was based
on a positive chest x-ray.
2. Dr. Zaldivar: Dr. Zaldivar is a board-certified pulmonologist and
B-reader.1 He examined O’Dell on February 20, 1981, and noted that
he resigned after 31 years of coal mine employment in consequence
of an inner ear disturbance that caused dizziness. Dr. Zaldivar found
a mild obstructive and restrictive airway impairment, which he attri-
buted to exposure to coal mine dust. He found that there was radio-
graphic evidence of simple coal workers’ pneumoconiosis (i.e.,
"clinical pneumoconiosis").
3. Dr. Crisalli: Dr. Crisalli is board-certified in internal medicine
with a sub-specialty of pulmonary disease. He examined O’Dell on
November 11, 1988, and diagnosed simple coal workers’ pneumoco-
niosis, based on positive x-ray findings, and hypertension. Dr. Crisalli
concluded that O’Dell had a five percent pulmonary functional
impairment, and that he could return to his usual coal mine work or
comparable employment. In a supplemental report dated March 10,
1989, Dr. Crisalli noted that he was unable to state whether O’Dell
is disabled by inner ear problems with associated dizziness.
4. Dr. Kress: Dr. Kress, a B-reader, has limited his practice to the
diagnosis and treatment of pulmonary diseases. Dr. Kress reviewed
O’Dell’s medical records and issued a consultative report dated Feb-
ruary 23, 1989. He concluded that the x-ray evidence was inconclu-
sive for the existence of coal workers’ pneumoconiosis. He diagnosed
pulmonary emphysema attributable to cigarette smoking. He did not
believe that this condition was sufficient to prevent O’Dell from
returning to coal mine employment.
5. Dr. Fino: Dr. Fino is a B-reader and is board-certified in internal
medicine with a sub-specialty of pulmonary disease. Dr. Fino
1
"A ‘B’ reader is a doctor who has demonstrated proficiency in inter-
preting x-rays for the presence or absence of pneumoconiosis by passing
an examination given by the Appalachian Laboratory for Occupational
Safety and Health." Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,
440 n.1 (4th Cir. 1997) (citing 42 C.F.R. § 37.51(b)(2); 20 C.F.R.
§ 718.202(a)(ii)(E)).
6 SEWELL COAL CO. v. O’DELL
reviewed O’Dell’s medical records and issued a consultative report
dated February 26, 1989. He interpreted two x-rays, taken on July 22,
1980, and November 11, 1988, as negative for clinical pneumoconio-
sis. He also noted that varied levels of arterial blood oxygen between
1980 and 1988 and a normal lung volume study were inconsistent
with pneumoconiosis. Dr. Fino concluded that O’Dell suffers a mild
pulmonary impairment, but he would not attribute the condition to
cigarette smoking.
6. Dr. Lee: Dr. Lee examined O’Dell on March 10, 1989. He diag-
nosed coal workers’ pneumoconiosis (by x-ray), bilateral deafness,
and essential hypertension. He also noted that O’Dell suffers from
progressive dyspnea. He concluded that O’Dell should not return to
work in the coal mines because, he believed, further exposure to coal
dust would aggravate his pulmonary condition.
IV.
This case came before an ALJ on four separate occasions and on
each occasion, the ALJ awarded benefits. The final remand was heard
by ALJ Levin, who concluded that O’Dell was entitled to benefits
essentially because the x-ray evidence was sufficient to establish the
presence of pneumoconiosis, thereby invoking the presumption of
entitlement under 20 C.F.R. § 727.203(a)(1) ("(a)(1) presumption").
In doing so, he accorded significant weight to the fact that three of
Sewell’s own medical experts read O’Dell’s x-rays as positive for
pneumoconiosis. ALJ Levin further concluded (erroneously, as we
note in Part VI below) that invocation of the presumption precluded
rebuttal evidence that O’Dell does not have pneumoconiosis under 20
C.F.R. § 727.203(b)(4) ("(b)(4) rebuttal"). ALJ Levin also provided
alternative findings. Thus, he found that a presumption of entitlement
could also be invoked under 20 C.F.R. § 727.203(a)(2) ("(a)(2) pre-
sumption") based upon O’Dell’s ventilatory studies. In such an
instance, the ALJ concluded, consideration of (b)(4) rebuttal evidence
would not be precluded. Accordingly, the ALJ proceeded to consider
the radiographic evidence; he rejected it, however, as insufficient to
prove the absence of clinical pneumoconiosis. He noted that the x-
rays were evenly balanced and therefore inconclusive. The ALJ next
considered the medical opinion evidence. He concluded that without
the support of the x-ray evidence, the opinions of Drs. Eakle, Zaldi-
SEWELL COAL CO. v. O’DELL 7
var, Crisalli and Lee, all of whom relied heavily on the x-rays in
reaching their conclusions, were inconclusive. However, he found the
medical opinions of Drs. Kress and Fino, the only two doctors to
diagnose O’Dell negatively for clinical pneumoconiosis, sufficient to
constitute (b)(4) rebuttal. Specifically, the ALJ concluded that the fac-
tors relied upon by those doctors were "more comprehensive and per-
suasive" than the factors relied upon by the others; therefore, he
concluded, Sewell could successfully rebut the interim presumption
of entitlement.
On appeal, the Board affirmed the award of benefits, concluding
that O’Dell had established a presumption of entitlement under both
(a)(1) and (a)(2), and that (b)(4) rebuttal evidence was precluded in
respect to the (a)(1) presumption finding. Accordingly, the Board did
not address the ALJ’s alternative findings regarding the sufficiency of
Sewell’s (b)(4) rebuttal evidence.
V.
In reviewing the determinations of the Board, this Court undertakes
an independent review of the record to determine whether the ALJ’s
factual findings were based upon substantial evidence. Dehue Coal
Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995). Legal conclu-
sions, of course, are reviewed de novo. Id. The issues discussed herein
present questions of law.
VI.
Sewell does not challenge the ALJ’s invocation (and the Board’s
affirmance) of the (a)(2) presumption of entitlement.2 Moreover, the
Director concedes that the ALJ and the Board erred in concluding that
consideration of (b)(4) rebuttal was precluded in respect to the (a)(1)
presumption. Therefore, the only issue as to the merits to be decided
on this appeal is whether the medical evidence of record is legally
sufficient to support (b)(4) rebuttal of the (a)(2) presumption as the
2
Nor does Sewell challenge earlier findings that it has failed to estab-
lish rebuttal pursuant to 20 C.F.R. § 727.203(b)(2) and (b)(3). Rebuttal
pursuant to 20 C.F.R. § 727.203(b)(1) is, of course, unavailable since
O’Dell is not currently doing his usual or comparable work.
8 SEWELL COAL CO. v. O’DELL
ALJ found, a finding which the Board did not review. We hold that
the ALJ’s finding is not supported by legally sufficient evidence.
Before explaining our holding, we briefly address two preliminary
procedural issues.
A.
At oral argument, counsel urged us to consider, as a threshold mat-
ter, a jurisdictional issue raised by O’Dell in his reply brief. Accord-
ing to O’Dell, we should affirm the award of benefits on the ground
that, because Sewell filed a late controversion, the ALJ lacked juris-
diction from the outset to hear the claim. O’Dell further suggested
that the agency’s decisional delay in handling this case constituted a
violation of his due process rights and that justice requires, at a mini-
mum, that liability for the payment of his benefits be transferred to
the Black Lung Disability Trust Fund ("Trust Fund").3 Sewell, of
course, agrees with this latter contention, and seems to argue that its
due process rights have also been violated. We are not persuaded.
Regulations promulgated under the Act provide that "[w]ithin 30
days after receipt of . . . [the notice of initial finding], unless such
period is extended by the deputy commissioner for good cause shown,
or in the interest of justice, a notified operator shall indicate an intent
to accept or contest liability." 20 C.F.R. § 725.413(a). The regulations
further state that failure to respond within the specified time period
shall be deemed an acceptance of the initial findings and a waiver of
the right to contest the claim "unless the operator’s failure to respond
is excused for good cause shown." Id. § 725.413(b)(3).
The OWCP issued its notice of initial finding in the instant case on
October 8, 1980. Sewell did not respond until November 25, 1980,
about 18 days after the deadline. In the letter of transmittal, counsel
3
The Trust Fund is a separate fund within the general treasury, whose
trustees are the Secretaries of Treasury, Labor, and Health and Human
Services. It is funded primarily by the receipts of an excise tax imposed
on coal producers and may make expenditures only for purposes related
to the Act, including benefits on claims where no responsible operator
can be identified and the administrative expenses of the program. 26
U.S.C. § 9501(d).
SEWELL COAL CO. v. O’DELL 9
for Sewell wrote: "As we discussed, due to an oversight in this office,
the claim file was not forwarded to the employer’s legal counsel so
that a controversion could be filed. We respectfully request that this
late controversion be accepted." (Supp. J.A. 4.)
O’Dell did not move to dismiss Sewell’s controversion until 1989
(apparently when he retained counsel), nine years after it was filed.
The ALJ concluded that the Deputy Commissioner’s acceptance of
the untimely filing did not constitute an abuse of discretion. O’Dell
challenges that conclusion for the first time in eleven years on this
appeal. However, he has failed to provide any reason why we should
now upset the ALJ’s conclusion that there was "good cause" for the
belated filing. Nor does our own review of the record indicate that an
abuse of discretion inhered in the acceptance of Sewell’s late con-
troversion. Accordingly, we find that the ALJ had jurisdiction to hear
O’Dell’s claim.4
B.
Sewell contends that O’Dell waived his right to challenge the
4
Because neither party raised the issue until now, we need not address
the ostensible due process question. Cf. Rana v. United States, 812 F.2d
887, 890 (4th Cir. 1987) ("When an argument concerns procedural rights
within the purview of agency expertise, and a plaintiff fails to raise the
argument before the agency, courts will entertain the argument on appeal
only if it is ‘jurisdictional’ or if there are compelling reasons for its nov-
elty."). We nevertheless point out that because we are affirming the
Board’s award of benefits, any claim of prejudice by O’Dell is moot. We
also note that, while we find the 21 year delay disturbing, Sewell has
failed to demonstrate any harm resulting from the delay. This is not a
case in which delay precluded the employer from attempting to mount
a defense, Lane Hollow Coal C. v. Director, OWCP, 137 F.3d 799, 807
(4th Cir. 1998), or one where the agency has lost the official file and
failed to inform counsel of scheduled hearings, Island Creek Coal Co. v.
Holdman, 202 F.3d 873, 883 (6th Cir. 2000). Rather, Sewell asserts that
the parties were prejudiced by changes in the law that occurred during
the pendency of the procceding. Of course, relevant legal standards not
infrequently evolve throughout the life of a case. Manifestly, such
changes do not constitute the sort of "prejudice" which might be thought
to deprive a party of due process of law.
10 SEWELL COAL CO. v. O’DELL
ALJ’s alternative findings regarding the legal sufficiency of (b)(4)
rebuttal because he did not file a cross-appeal on that issue with the
Board. We disagree. The regulations governing review of a final order
or decision issued by an ALJ provide that "[a]rguments in response
briefs shall be limited to those which respond to arguments raised in
petitioner’s brief and to those in support of the decision below." 20
C.F.R. § 802.212(b). Moreover, "[w]hen a decision or order is favor-
able to a party (i.e., the prevailing party), the prevailing party may file
a cross-appeal . . . to challenge any adverse findings of fact or conclu-
sions of law in the same proceeding." Id. § 802.201(a)(2) (emphasis
added). We have interpreted these regulations to mean that "the argu-
ment made without cross-appeal must be in support of ‘the decision’
of the ALJ, but not necessarily in support the ALJ’s reasoning in
reaching his decision." Malcomb v. Island Creek Coal Co., 15 F.3d
364, 369 (4th Cir. 1994) (emphasis in original).
In Malcomb, the ALJ denied a claim for benefits under 20 C.F.R.
§ 727.203(a), finding that the employer had successfully rebutted the
presumption of entitlement under 20 C.F.R. § 727.203(b)(3). The ALJ
awarded benefits, however, pursuant to 20 C.F.R. § 410.490. The
employer appealed this decision to the Board; the claimant did not file
a cross-appeal challenging the ALJ’s rebuttal holding. Id. at 366.
While the appeal was pending, the Supreme Court decided a case that
mandated a finding that the claimant was not entitled to benefits
under 20 C.F.R. § 410.490. The claimant agreed that the intervening
decision precluded his award under that section, but argued that the
ALJ’s decision should be affirmed under 20 C.F.R. § 727.203(a)
because the ALJ had erred in finding that there was sufficient evi-
dence to support rebuttal. The Board refused to consider the claim-
ant’s argument on the ground that he had failed to file a cross-appeal.
Id. at 366-67. We reversed, concluding that:
[U]nder the Board’s cross-appeal regulations, an appellee
need not cross-appeal in order to make an argument that
supports the decision—or, stated differently, the result—
reached by the ALJ, but attacks the reasoning used by the
ALJ in reaching his decision.
By arguing that the ALJ erred in rejecting his claim for
benefits under section 727.203, Malcomb sought to support
SEWELL COAL CO. v. O’DELL 11
the result reached by the ALJ—awarding him benefits. As
a result, the Board’s cross-appeal regulations did not require
Malcomb to cross-appeal in order to press this argument,
and the Board erred in not considering it on the ground that
he failed to do so.
Id. at 370.
The instant case is analogous to Malcomb. O’Dell seeks to support
the result reached by the ALJ. As in Malcomb, that result is the award
of benefits, not the reasoning of the ALJ or the details of his resolu-
tion of every subsidiary issue along the way. Accordingly, we are sat-
isfied that O’Dell did not waive his right to challenge ALJ Levin’s
alternative findings by failing to file a cross-appeal with the Board.
The fact that the Board affirmed the award of benefits without consid-
ering the ALJ’s alternative findings is irrelevant, since Respondents
have now properly raised the issue for review "in the prescribed man-
ner." Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 522 n.8
(4th Cir. 1995). Moreover, under the Federal Rules of Appellate Pro-
cedure, Sewell has been afforded an opportunity to reply to the argu-
ments contained in Respondents’ briefs. See Fed. R. App. P. 28(c).
We are satisfied therefore that our review of the ALJ’s conclusion as
to (b)(4) rebuttal is proper.
C.
We now turn to the merits. In order to establish (b)(4) rebuttal of
an interim presumption of entitlement, an employer must prove that
the claimant does not have pneumoconiosis within the meaning of the
Act ("legal pneumoconiosis"). 20 C.F.R. § 727.203(b)(4). The Act
broadly defines pneumoconiosis as a "chronic dust disease of the lung
and its sequelae, including respiratory and pulmonary impairments,
arising out of coal mine employment." 30 U.S.C. § 902(b).5 We have
recognized that:
5
The regulations promulgated under the Act further define pneumoco-
niosis as:
[A] chronic dust disease of the lung and its sequelae, including
respiratory and pulmonary impairments, arising out of coal mine
12 SEWELL COAL CO. v. O’DELL
"clinical" or "medical" pneumoconiosis must be distin-
guished from "legal" pneumoconiosis. Medical pneumoco-
niosis is "the lung disease caused by the fibrotic reaction of
the lung tissue to inhaled dust . . . ." Legal pneumoconiosis,
however, is much broader and "refers to all lung diseases
which meet the statutory or regulatory definition of being
any lung disease which is significantly related to, or sub-
stantially aggravated by, dust exposure in coal mine
employment."
Doris Coal Co. v. Director, OWCP, 938 F.2d 492, 495 (4th Cir. 1991)
(citations omitted). In order to establish (b)(4) rebuttal, therefore,
Sewell must prove that O’Dell does not have "any lung disease which
is significantly related to, or substantially aggravated by, dust expo-
sure in coal mine employment." Id.; see also Island Creek Coal Co.
v. Compton, 211 F.3d 203, 210 (4th Cir. 2000) ("Critically, ‘a medical
diagnosis finding of no coal workers’ pneumoconiosis is not equiva-
lent to a legal finding of no pneumoconiosis.’" (citation omitted)).
The ALJ erred in finding that Sewell "has rebutted the presump-
tion, triggered pursuant to section 727.203(a)(2), under Section
727.203(b)(4) by showing that claimant does not have clinical or stat-
utory [i.e. legal] pneumoconiosis as defined in 20 C.F.R. 972.202."
(J.A. 178.) In making this finding, he relied exclusively on the medi-
cal opinions of Drs. Kress and Fino. Neither Dr. Kress nor Dr. Fino,
however, performed a physical examination of O’Dell. Rather, each
reviewed the chest x-rays and medical records prepared by the four
examining physicians, Drs. Eakle, Zaldivar, Crisalli and Lee, all of
employment. This definition includes, but is not limited to, coal
workers’ pneumoconiosis, anthracosilicosis, anthracosis, anthro-
silicosis, massive pulmonary fibrosis, progressive massive fibro-
sis, silicosis or silicotuberculosis, arising out of coal mine
employment. For purposes of this definition, a disease "arising
out of coal mine employment" includes any chronic pulmonary
disease resulting in respiratory or pulmonary impairment signifi-
cantly related to, or substantially aggravated by, dust exposure in
coal mine employment.
20 C.F.R. § 718.201.
SEWELL COAL CO. v. O’DELL 13
6
whom diagnosed clinical pneumoconiosis. As discussed herein, the
medical opinions of Drs. Kress and Fino are insufficient as a matter
of law to establish (b)(4) rebuttal of the (a)(2) presumption.
1.
Dr. Kress observed that O’Dell has pulmonary emphysema with
evidence of some obstructive lung disease. He found it difficult to
determine whether O’Dell also suffered from chronic bronchitis, but
concluded that O’Dell’s "pulmonary impairment . . . is from his ciga-
rette smoking history certainly not related either to pneumoconiosis
if indeed he should subsequently prove, by tissue examination, to
have such, nor to his now remote dust exposure." (J.A. 50.) We have
repeatedly held, however, that a non-examining physician’s opinion
on matters not addressed by examining physicians is insufficient as
a matter of law to rebut an interim presumption. Bethlehem Mines
Corp. v. Massey, 736 F.2d 120, 125 (4th Cir. 1984); Turner v. Direc-
tor, OWCP, 927 F.2d 778, 779-80 (4th Cir. 1991); Malcomb v. Island
Creek Coal Co., 15 F.3d 364, 370-71 (4th Cir. 1994). Sewell argues
that because each of O’Dell’s examining physicians "documented an
extensive smoking history," (Pet’r Reply Br. at 7), Dr. Kress’ diagno-
sis of pulmonary emphysema attributable to cigarette smoking was
proper. Sewell’s argument is without merit.
The official government-issued OWCP form used to record medi-
cal history and examination for coal mine worker’s pneumoconiosis
specifically asks for information regarding the examinee’s smoking
history. Moreover, we would expect any competent physician exam-
6
As explained above, the ALJ discounted the opinions of each of these
doctors because they relied heavily on the x-ray evidence, which he
found was inconclusive. The Act, however, requires consideration of "all
relevant evidence." 30 U.S.C. § 923(b). As we have recently held, the
plain meaning of § 923(b) "is that all relevant evidence is to be consid-
ered together rather than merely within discrete subsections of [the regu-
lations setting forth acceptable methods of proof]." Island Creek Coal
Co. v. Compton, 211 F.3d 203, 208 (4th Cir. 2000) (emphasis added).
We have also held that the opinions of examining physicians, although
not necessarily dispositive, deserve especial consideration. Sterling
Smokeless Coal Co. v. Akers, 131 F.3d 438, 440 (4th Cir. 1997).
14 SEWELL COAL CO. v. O’DELL
ining a patient with respiratory problems to ask whether the patient
smoked. Therefore, the mere documentation of a smoking history on
the official OWCP form or elsewhere, without more, cannot reason-
ably imply that an examining physician has "addressed the possibility
that cigarette smoking caused the claimant’s disability." Malcomb, 15
F.3d at 371. Indeed, if this were the case, then any non-examining
doctor could review the medical records of a coal miner with a smok-
ing history and opine that his pulmonary impairment was caused by
cigarette smoking. No other physician in the instant case, examining
or non-examining, considered smoking to be the etiology of O’Dell’s
illness. Tellingly, even Dr. Fino, Sewell’s other rebuttal witness, spe-
cifically states that based on his review of the medical record, he
would not attribute O’Dell’s pulmonary condition to cigarette smok-
ing.
More importantly, Dr. Kress recognized that O’Dell suffers from
some sort of pulmonary impairment, but he did not rule out exposure
to coal dust as an aggravating factor. In fact, Dr. Kress acknowledged
that a diagnosis of pulmonary emphysema may be consistent with cer-
tain kinds of pneumoconiosis and other, related lung diseases. He
explained:
Emphysema is an irreversible condition, in fact tends to be
progressive. Except those individuals with far advanced
pneumoconiosis such as progressive, massive, fibrosis, one
does not see physiological emphysema developing in coal
workers’ pneumoconiosis. True, there is a form of emphy-
sema known as focal emphysema associated with the indi-
vidual coal macules, but this type of emphysema does not
alter function. In the absence of advanced pneumoconiosis
and inherited alpha 1 antitrypsin deficiency, cystic fibrosis
or advanced bronchiectasis, emphysema develops only as a
result of cigarette smoking.
(J.A. 50.) Because Dr. Kress’s opinion regarding the cause of
O’Dell’s pulmonary impairment is based on matters not addressed by
the examining physicians, and because it fails to completely rule out
legal pneumoconiosis, the ALJ erred in relying on it to support his
alternative finding that Sewell had established (b)(4) rebuttal.
SEWELL COAL CO. v. O’DELL 15
2.
Dr. Fino’s opinion concludes that "there is insufficient objective
medical evidence to justify a diagnosis of simple coal workers’ pneu-
moconiosis (i.e., clinical pneumoconiosis)." (J.A. 57.) The ALJ
acknowledged that Dr. Fino relied heavily on the x-ray evidence in
forming his opinion. Indeed, Dr. Fino began his discussion by report-
ing:
From a radiographic standpoint, my review of the chest x-
ray showed it to be completely negative. I found no abnor-
malities consistent with a simple coal workers’ pneumoconi-
osis. Three B-reader/radiologists agreed with my
interpretation. Hence, from a radiographic standpoint, I do
not believe that this man has simple coal workers’ pneumo-
coniosis. There was no evidence on the chest x-ray that he
had any rounded densities consistent with coal workers’
pneumoconiosis.
(J.A. 55.) We have recently reemphasized, however, that "[e]vidence
that does not establish medical pneumoconiosis, e.g., an x-ray read as
negative for coal workers’ pneumoconiosis, should not necessarily be
treated as evidence weighing against a finding of legal pneumoconio-
sis." Island Creek Coal Co. v. Compton, 211 F.3d 203, 210 (4th Cir.
2000) (emphasis in original).
Dr. Fino also concluded that "[t]here is a mild impairment in respi-
ratory function present." (J.A. 57.) He specifically states that this
"mild impairment" is not attributable to cigarette smoking. He does
not draw a conclusion as to whether the condition is "significantly
related to, or substantially aggravated by, dust exposure in coal mine
employment," 20 C.F.R. § 718.201, as required under the Act.
Accordingly, Dr. Fino’s opinion is insufficient to rebut the interim
presumption, and the ALJ’s heavy reliance on it to justify the finding
that Sewell had established (b)(4) rebuttal was erroneous.
VII.
For the foregoing reasons, the Board’s award of benefits to O’Dell
is
AFFIRMED.