Westmoreland Coal Co. v. Amick

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1147
WESTMORELAND COAL COMPANY,
Petitioner,
versus
CHARLES M. AMICK; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(03-256-BLA)
Argued: September 28, 2004 Decided: December 6, 2004
Before WILKINSON and WILLIAMS, Circuit Judges, and Roger W. TITUS,
United States District Judge for the District of Maryland, sitting
by designation.
Vacated and remanded by unpublished per curiam opinion.
ARGUED: Douglas Allan Smoot, JACKSON KELLY, P.L.L.C., Charleston,
West Virginia, for Petitioner. Seth A. Steed, WASHINGTON & LEE
UNIVERSITY, School of Law, Lexington, Virginia; Richard Anthony
Seid, UNITED STATES DEPARTMENT OF LABOR, Black Lung Longshore Legal
Services Division, Washington, D.C., for Respondents. ON BRIEF:
Kathy L. Snyder, JACKSON KELLY, P.L.L.C., Morgantown, West
Virginia, for Petitioner. Mary Z. Natkin, James M. Phemister,
WASHINGTON & LEE UNIVERSITY, School of Law, Lexington, Virginia,
for Respondent Amick. Howard M. Radzely, Solicitor of Labor,
Donald S. Shire, Associate Solicitor, Christian P. Barber, Counsel
for Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR, Office
of the Solicitor, Washington, D.C., for Federal Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
On March 29, 2000, Charles Moore Amick filed his third claim
for benefits under the Black Lung Benefits Act (the BLBA or the
Act), 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 2004). An
Administrative Law Judge (ALJ) reviewed Amick’s claim, found that
Amick had established a material change in condition since his
prior black lung benefits claim, and awarded benefits. Because the
ALJ found that the evidence did not establish the month of onset of
total disability, the ALJ applied the default entitlement date
provided for in 20 C.F.R. § 725.503 (2002) and made benefits
payable beginning with the month that the claim was filed. The
Benefits Review Board (Board) affirmed, with one judge dissenting.
Westmoreland Coal Company now petitions for review of the Board’s
order. Because the ALJ’s factual findings regarding the
credibility of the various doctors are not supported by substantial
evidence, we vacate the Board’s order and remand to the ALJ to
reconsider the medical evidence.
I.
Amick worked in the coal mine industry for approximately
thirty-five years. He had various jobs, including working as a
truck driver, mechanic, electrician, dozer operator, timberman,
cutting machine operator, and scoop operator. The last eleven
years of his coal mine employment were with Westmoreland where he
3
ran a supply motor, which involved loading and unloading roof
bolts, timbers, and other supplies. Amick retired in 1983. Amick
filed his first claim for benefits in 1980. That claim was denied
in 1981 because the evidence did not establish total disability due
to pneumoconiosis. Amick filed his second claim on April 15, 1983.
This second claim was denied because Amick failed to appear at a
hearing or respond to a show cause order. Amick filed this claim,
his third, on March 29, 2000.
The record contains reports from nine doctors, all of whom
agree that Amick is “totally disabled” as defined by federal
regulations. See 20 C.F.R. § 718.204(b)(1) (defining total
disability as “pulmonary or respiratory impairment” preventing a
miner from performing coal mine work). The medical reports
conflict, however, as to the cause of Amick’s disability. Amick’s
doctors -- Drs. Koenig, Cohen, and Rasmussen -- opine that his
disability is due, at least in part, to his coal mine employment.
The employer’s doctors -- Drs. Zaldivar, Stewart, Castle, Daniel,
Spagnolo, and Morgan -- uniformly opine that Amick’s disability is
due to Amick’s habit of smoking approximately one pack of
cigarettes per day for nearly forty years.
The ALJ discredited reports from several of the employer’s
doctors “[b]ased on the failure of these physicians to discuss
whether or not Claimant’s chronic obstructive pulmonary disease was
related to his coal mine employment.” (J.A. at 623.) The ALJ also
4
noted that the employer’s doctors “were discussing the presence of
simple coal workers’ pneumoconiosis as demonstrated on chest X-ray”
and not “legal pneumoconiosis.” (J.A. at 623.) Finally, the ALJ
discredited Dr. Morgan’s opinion because it was “contradictory to
the Act.” (J.A. at 624.) The ALJ credited Dr. Koenig’s report
because it gave a “very thorough and complete discussion of
Claimant’s pulmonary condition.” (J.A. at 623.) The ALJ also
found Dr. Koenig’s report to be the “best reasoned.” (J.A. at
624.) Based on this weighing of the medical reports, the ALJ
determined that Amick had proven a material change in condition
since his last claim for benefits, and on a review of all of the
evidence, the ALJ awarded benefits. The Board affirmed, with one
judge dissenting.
Westmoreland now petitions for review, arguing that the ALJ
erred by (1) failing to make a factual finding that Amick’s claim
was timely; (2) applying certain amended regulations to Amick’s
claim, which was pending on the date the regulations became
effective; (3) applying the wrong test to determine whether Amick
established a material change in condition; (4) weighing the
medical opinion evidence; and (5) applying the default entitlement
date found in 20 C.F.R. § 725.503.
5
II.
A.
We consider first Westmoreland’s argument that the ALJ erred
by failing to make a factual finding that Amick’s claim was
timely. Section 725.308 provides that “[a] claim for benefits . .
. shall be filed within three years after a medical determination
of total disability due to pneumoconiosis which has been
communicated to the miner . . . .” 20 C.F.R. § 725.308(a).
Although Westmoreland argued that Amick’s claim was untimely, the
ALJ made no explicit findings regarding the timeliness of Amick’s
claim. On appeal before the Board, Westmoreland once again argued
that Amick’s claim was untimely. The Board reviewed the evidence
and held that Amick’s claim was timely because the time limitations
do not apply to duplicate claims and because even assuming that the
time limits apply, “this claim would not be time-barred because a
review of the record before us fails to demonstrate that claimant
received a written diagnosis of totally disabling pneumoconiosis.”
(J.A. at 632 (emphasis added).) The Board did not mention the
ALJ’s failure to address the timeliness issue, but apparently
considered the ALJ’s decision on the merits to be a rejection of
Westmoreland’s timeliness arguments. Westmoreland now argues that
the ALJ’s failure to make explicit findings regarding the
timeliness of Amick’s claim requires remand. Alternatively,
6
Westmoreland argues that the Board erred in requiring the
communication with the miner to be written.
Section 921(c) of Title 33, as incorporated by 30 U.S.C.A. §
932 (West 2000), provides us with jurisdiction to entertain this
petition. That section provides, in relevant part:
Any person adversely affected or aggrieved by a final
order of the Board may obtain a review of that order in
the United States court of appeals for the circuit in
which the injury occurred . . . . [T]he court shall have
jurisdiction of the proceeding and shall have the power
to give a decree affirming, modifying, or setting aside,
in whole or in part, the order of the Board and enforcing
same to the extent that such order is affirmed or
modified.
33 U.S.C.A. § 921(c)(2001). Although this statute does not set out
the standard of review in this court, we are guided by the fact
that the Board must affirm the ALJ’s findings of fact if they are
“supported by substantial evidence in the record considered as a
whole.” 33 U.S.C.A. § 921(b)(3); 20 C.F.R. § 802.301 (2001). Thus,
when reviewing a claim for benefits under the BLBA, “[w]e
undertake an independent review of the record, as in the place of
the Board, to determine whether the ALJ’s factual findings were
based on substantial evidence in the record. We review questions of
law de novo.” Toler v. Eastern Associated Coal Co., 43 F.3d 109,
114 (4th Cir. 1995) (citation omitted).
Turning to the Board’s holdings, the Board first held that the
time limitations in 30 U.S.C.A. § 932(f) and 20 C.F.R. § 725.308 do
not apply to duplicate claims. (J.A. at 632.) Neither the statute
7
nor the regulation, however, makes any distinction between initial
and duplicate claims. The statute refers to “[a]ny” claim for
benefits and the regulation refers to “[a] claim” for benefits.
Based on this language, the Director, to whom we accord substantial
deference in the interpretation of the regulations, Pauley v.
BethEnergy Mines, Inc., 501 U.S. 680, 697 (1991), advocates
application of the time limitation to duplicate claims as well as
initial claims, and we agree. In the context of duplicate claims,
we agree with the Tenth Circuit that
a final finding by an Office of Workers’ Compensation
Program adjudicator [or other final adjudicator] that the
claimant is not totally disabled due to pneumoconiosis
repudiates any earlier medical determination to the
contrary and renders prior medical advice to the contrary
ineffective to trigger the running of the statute of
limitations.
Wyoming Fuel Co. v. Director, Office of Workers’ Comp. Program, 90
F.3d 1502, 1507 (10th Cir. 1996).
Perhaps anticipating that we would hold that the time
limitations apply to duplicate claims, the Board held in the
alternative that Amick’s claim was timely because there was no
evidence of a written diagnosis communicated to Amick more than
three years before he filed his claim. Westmoreland argues that
this holding is erroneous because there is no requirement that the
miner receive a written communication of his diagnosis. We need
not resolve this issue, however, because, as discussed below,
8
Westmoreland does not cite to any evidence, written or otherwise to
trigger the statute of limitations.1
Amick filed his claim in March 2000. Accordingly, his claim
is untimely if Westmoreland can show that a diagnosis of total
disability due to pneumoconiosis was communicated to him before
March 1997. The evidence related to the timeliness issue is not in
dispute, although the parties draw different inferences from that
evidence. The Progress Notes from the Rainelle Medical Center show
a diagnosis of “Black Lung 20%” in 1995 and “+CWP - 35 yrs in
mines” in 1996, (J.A. at 30, 31), but the Progress Notes do not
mention whether Amick was totally disabled or whether the diagnosis
was communicated to Amick. At the hearing before the ALJ, on June
12, 2002, Westmoreland elicited testimony from Amick regarding
diagnoses from Drs. Klamath and Salvador. According to Amick’s
testimony, Dr. Klamath told him he was totally disabled by Black
Lung “probably two or three years ago,” (J.A. at 594), and Dr.
Salvador told him there was “something wrong with [his] lungs . .
. probably been four years ago.” (J.A. at 595.) When asked
whether Dr. Salvador told him that he was disabled, Amick
testified, “I just don’t remember whether he told me at that time
or not.” (J.A. at 596.) Based on Amick’s testimony in June 2002,
the communication from Dr. Salvador would have taken place around
1
Pursuant to 20 C.F.R. § 725.308(c), claims for benefits are
presumed to be timely, and the employer bears the burden of
production that a claim is untimely.
9
June 1998, and the communication from Dr. Klamath would have taken
place around 1999 or 2000. Because none of these dates is more
than three years before Amick filed this claim for benefits,
Westmoreland has not carried its burden to show that Amick’s claim
was untimely.
Ideally, the ALJ would have made explicit the factual finding
that the communication from Dr. Klamath and/or Dr. Salvador
occurred in 1998 at the earliest. Because we find, however, that
this is the only permissible inference to be drawn from the
undisputed evidence, we find that the ALJ’s failure to make these
factual findings is harmless error. See Ngarurih v. Ashcroft, 371
F.3d 182, 190 n.8 (4th Cir. 2004) (holding that appeals courts need
not reverse agency action because of a harmless error).
B.
We turn next to Westmoreland’s argument that the ALJ erred in
applying certain amended regulations to Amick’s claim. The
Secretary revised Parts 718 and 725 of the black lung regulations
in 2001. See 20 C.F.R. Parts 718 and 725 (2004). The amended
regulations became effective on January 19, 2001. With the
exception of certain sections identified in 20 C.F.R. § 725.2(c),
the amended regulations apply to claims pending as of January 19,
2001. It is undisputed that the Secretary did not have the
authority to promulgate retroactive rules. Accordingly, the only
10
question is whether the challenged regulations are, in fact,
retroactive. Westmoreland argues that all of the amendments are
impermissibly retroactive as applied to claims pending as of
January 19, 2001.
As an initial matter, we note that the D.C. Circuit considered
in some detail challenges to specific amended black lung
regulations and found several of the amended regulations to be
impermissibly retroactive. See Nat. Mining Ass’n v. Dept. of
Labor, 292 F.3d 849 (D.C. Cir. 2002). The ALJ in this case,
however, did not apply any of the regulations that the D.C. Circuit
found to be impermissibly retroactive. (J.A. at 620 “I will apply
the sections of the newly revised version of Part 718 (i.e.
subparts A, C, and D) and 725 that took effect on January 19, 2001
that the court did not find impermissibly retroactive to the facts
of the instant matter.”.)
We stated the general framework for a retroactivity analysis
in Chambers v. Reno, 307 F.3d 284 (4th Cir. 2002).
A new statute does not produce a retroactive effect
“merely because it is applied in a case arising from
conduct antedating the statute's enactment.” Landgraf,
511 U.S. at 269. The question instead is “whether the new
provision attaches new legal consequences to events
completed before its enactment.” Id. at 270. A statute
would attach new legal consequences to prior events if
its application “would impair rights a party possessed
when he acted, increase a party's liability for past
conduct, or impose new duties with respect to
transactions already completed.” Id. at 280.
11
Chambers, 307 F.3d at 289. The only properly raised argument
Westmoreland makes is that under amended 20 C.F.R. § 718.101(b),
different quality standards applied to Dr. Rasmussen’s examination
of Amick on June 23, 2000, and Dr. Zaldivar’s examination of Amick
on January 24, 2001.2 (Appellant’s Br. at 16.) Westmoreland,
however, fails to elaborate on how this regulation impaired its
rights, increased its liability, or imposed new duties.
Westmoreland does not mention any other specific regulation. We
decline to review all of the amended regulations searching for some
retroactive effect in the absence of any argument from Westmoreland
regarding what new legal consequences the regulations impose. See
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)
(discussing abandonment of issues under Fed. R. App. P. 28(a)(9)
when Appellant fails properly to raise and discuss issues in his
opening brief). Moreover, we note that the ALJ did not fault
Westmoreland for failing to comply with any of the amended
regulations. Accordingly, the ALJ did not err in applying the
amended regulations to Amick’s claim that was pending on January
19, 2001.
2
Westmoreland’s only other explanation of how this regulation
impaired its rights was raised for the first time in oral argument.
Westmoreland argued that the application of revised 20 C.F.R.
§ 718.101(b) allowed the ALJ to discredit Dr. Spagnolo’s opinion
because Dr. Spagnolo believed pneumoconiosis to be a progressive
disease only.
12
C.
Westmoreland next argues that the ALJ applied the wrong test
to determine whether Amick established a material change in
condition. Westmoreland argues that, when considering a duplicate
claim, the ALJ must consider the old and new evidence together to
determine whether a material change in condition occurred.
Westmoreland’s argument is entirely without merit. In this
circuit, all that a miner must do to show a material change in
condition is “prove, under all of the probative medical evidence of
his condition after the prior denial, at least one of the elements
previously adjudicated against him.” Lisa Lee Mines v. Director,
Office of Workers’ Comp. Programs, 86 F.3d 1358, 1362 (4th Cir.
1996) (en banc), cert. denied, 519 U.S. 1090 (1997) (emphasis in
original). We specifically rejected the Sixth Circuit’s further
requirement in Sharondale Corp. v. Ross, 42 F.3d 993, 999 (6th Cir.
1994) of “consideration of the evidence behind the earlier denial
to determine whether it ‘differ[s] qualitatively from the new
evidence.” Id. at 1363 n.11.
D.
Westmoreland argues that the ALJ erred in determining that
Amick established the existence of pneumoconiosis by a
preponderance of the evidence because the ALJ erred in determining
which physicians’ opinions to credit. We agree.
13
The ALJ is charged with making factual findings, including
evaluating the credibility of witnesses and weighing
contradicting evidence. . . . Accordingly, we must affirm the
Board if it properly determined that the ALJ’s findings are
supported by substantial 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.”
Doss v. Director, Office of Workers’ Comp. Programs, 53 F.3d 654,
658-59 (4th Cir. 1995) (quoting Smith v. Director, OWCP, 843 F.2d
1053, 1057 (7th Cir. 1988).
To establish eligibility for benefits under 20 C.F.R. Part
718, a claimant must prove that (1) he has pneumoconiosis; (2) the
pneumoconiosis arose out of his coal mine employment; (3) he has a
totally disabling respiratory or pulmonary condition; and (4)
pneumoconiosis is a contributing cause to his total respiratory
disability. Section 718.202(a) provides that
[a] finding of the existence of pneumoconiosis may be
made as follows:
(1) A chest X-ray conducted and classified in accordance
with § 718.102 may form the basis for a finding of the
existence of pneumoconiosis . . . .
. . . .
(2) A biopsy or autopsy conducted and reported in
compliance with § 718.106 may be the basis for a finding
of the existence of pneumoconiosis . . . .
(3) If the presumptions described in §§ 718.304, 718.305
or § 718.306 are applicable, it shall be presumed that
the miner is or was suffering from pneumoconiosis.
(4) A determination of the existence of pneumoconiosis
may also be made if a physician, exercising sound medical
judgment, notwithstanding a negative X-ray, finds that
the miner suffers or suffered from pneumoconiosis as
defined in § 718.201. Any such finding shall be based on
objective medical evidence such as blood-gas studies,
electrocardiograms, pulmonary function studies, physical
performance tests, physical examination, and medical and
work histories. Such a finding shall be supported by a
reasoned medical opinion.
14
20 C.F.R. § 718.202(a) (2004). There were no autopsy or biopsy
findings in this case, and none of the presumptions apply.
Accordingly, the ALJ was left with the X-ray evidence and the
medical opinion evidence. The ALJ concluded that the X-ray
evidence was evenly balanced, and thus, did not establish
pneumoconiosis. (J.A. at 622.) The ALJ then considered the
medical opinion evidence, including the medical reports of Drs.
Zaldivar, Spagnolo, Stewart, Castle, Daniel, Morgan, Koenig,
Rasmussen, and Cohen.3
Westmoreland first argues that the ALJ erred by discrediting
Drs. Zaldivar, Stewart, Castle, and Daniel based on the erroneous
finding that they failed to address whether coal mine dust exposure
contributed to Amick’s chronic obstructive pulmonary disease
(COPD). The ALJ held that “[b]ased on the failure of these
physicians to discuss whether or not Claimant’s chronic obstructive
pulmonary disease was related to his coal mine employment, I accord
less weight to their conclusions regarding the presence of
pneumoconiosis since chronic obstructive pulmonary disease is
encompassed within the definition of pneumoconiosis for purposes of
entitlement to Black Lung benefits.” (J.A. at 623.) This finding
is not supported by substantial evidence. A review of the record
3
We note that after determining that the medical opinion
evidence supported a finding of pneumoconiosis, the ALJ properly
considered the medical opinion evidence together with the equivocal
X-ray evidence to determine whether pneumoconiosis was present.
See Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000).
15
reveals that Drs. Zaldivar, Stewart, and Castle each found that
Amick’s COPD was not related to his coal mine employment. (See
J.A. at 248 (Zaldivar - “There is no evidence of coal workers’
pneumoconiosis, nor any dust disease of the lungs in this case.”)
(emphasis added); J.A. at 282 (Castle - “These findings are not in
keeping with coal mine dust induced lung disease.”) (emphasis
added); J.A. at 352 (Stewart - “[T]his disability impairment is
secondary to chronic obstructive pulmonary disease from smoking as
well as the asthmatic component. It is not related in whole or in
part secondary to coal dust exposure or coal workers
pneumoconiosis.” (emphasis added).)
The Board appears to have recognized that the ALJ’s finding
was factually incorrect because it noted that “[f]urther review of
the administrative law judge’s Decision and Order . . . shows that
he was aware that these doctors discussed the cause of claimant’s
chronic obstructive pulmonary disease and that he fully set forth
his reasons for finding that their conclusions that chronic
obstructive pulmonary disease was due to smoking, not coal mine
employment, were unreasoned.” (J.A. at 635.) It is true that
“further review” of the ALJ’s decision reveals passages in the
“Medical Evidence” section where the ALJ noted that the doctors
opined that Amick’s COPD was not due to coal dust exposure, but the
ALJ was merely describing the reports in this section and not
weighing the evidence. When giving his reasons for discrediting
16
the doctors’ opinions, the ALJ specifically relied on the failure
of the doctors to discuss the etiology of Amick’s COPD.
The ALJ also discredited Dr. Spagnolo and several other
physicians4 for failing to consider the medical literature cited by
Dr. Koenig and for discussing only the presence of simple coal
workers’ pneumoconiosis as demonstrated on chest X-ray. According
to the ALJ, “[t]hey did not . . . discuss legal pneumoconiosis, nor
did they counter Dr. Koening’s [sic] findings that the chronic
obstructive pulmonary disease present was due, at least in part, to
coal mine employment and coal dust exposure.”5 (J.A. at 623.)
First, as the dissenting Board judge noted, if a physician provides
a reasoned opinion based on his evaluation of the evidence, he need
not also address the conclusions of other physicians. Second, as
discussed above, the factual finding that Drs. Zaldivar, Stewart,
and Castle did not address legal pneumoconiosis is simply
4
The ALJ does not make clear which other physicians he
includes with Dr. Spagnolo. We have assumed that the ALJ intended
to include Drs. Zaldivar, Stewart, Castle, and Daniel.
5
“Legal” pneumoconiosis is a statutory term referring to
“any ‘chronic pulmonary disease resulting in respiratory or
pulmonary impairment significantly related to, or substantially
aggravated by, dust exposure in coal mine employment.’ ” Gulf & W.
Indus. v. Ling, 176 F.3d 226, 231 (4th Cir. 1999) (quoting and
adding emphasis to 20 C.F.R. § 718.201 (2003)). “The term is thus
broader than ‘medical’ or ‘clinical’ pneumoconiosis, as ‘legal’
pneumoconiosis also encompasses ‘diseases whose etiology is not the
inhalation of coal dust, but whose respiratory and pulmonary
symptomatology have nonetheless been made worse by coal dust
exposure.’ ” Lewis Coal Co. v. Director, Office of Workers’ Comp.
Programs, 373 F.3d 570, 577 (4th Cir. 2004) (quoting Clinchfield
Coal Co. v. Fuller, 180 F.3d 622, 625 (4th Cir.1999)).
17
incorrect. Dr. Spagnolo also considered whether legal
pneumoconiosis was present. (See J.A. at 319 (Spagnolo - “Mr.
Amick does not have a chronic restrictive or obstructive pulmonary
impairment arising out of coalmine [sic] employment and further he
does not have any chronic disease of the lung arising from his coal
mine employment.”).
The Board attempted to bolster the ALJ’s findings by
concluding that the ALJ “implicitly” found that Spagnolo, Zaldivar,
and Castle erred by not considering the progressive nature of
pneumoconiosis. (J.A. at 635-36.) The ALJ, however, did not give
this as a reason for discrediting the doctors’ opinions, and we
must “judge the propriety of the [ALJ’s] action solely by the
grounds invoked by the [ALJ].” SEC v. Chenery, 332 U.S. 194, 196
(1947)(sustaining SEC order upon review of the Commission’s
grounds).
Westmoreland also argues that the ALJ erred in discrediting
Dr. Morgan. The ALJ’s conclusion with regard to Dr. Morgan suffers
from the same flaw as its conclusions regarding the other
physicians. The ALJ discredited Dr. Morgan’s report as
contradictory to the Act because “[h]e stated the medical
authorities and studies which he credits are against a finding that
emphysema and airway obstruction are related to coal mine
employment.” (J.A. at 624.) As the Board recognized, Dr. Morgan’s
report was not contradictory to the Act because “Dr. Morgan did not
18
state that an obstructive impairment could not arise out of coal
mine employment,” he merely stated that Amick’s obstructive
component did not arise out of coal mine employment. (J.A. at 636;
See J.A. at 387 (Morgan’s report - “[C]oal miners develop airways
obstruction and bronchitis. They also develop focal dust
emphysema. The latter, however, is not the same condition as is
centriacinar emphysema which results from cigarette smoking.”).)
The Board tries to fix the ALJ’s error by holding that the ALJ also
discredited Dr. Morgan because he based his opinion on the lack of
radiographic evidence of dust disease and the progressive nature of
Amick’s disease. The ALJ’s opinion shows that the ALJ was aware of
the contents of Dr. Morgan’s opinion, but the only reason given by
the ALJ for discrediting him is that his opinion was contradictory
to the Act.
Although the Board’s conclusions about the credibility of the
doctors might be supported by substantial evidence,6 it is the
ALJ’s factual findings that we must review. The reasons that the
ALJ gave for discrediting the doctors’ opinions are not supported
by substantial evidence. Accordingly, we vacate the ALJ’s decision
and remand for reconsideration of the medical opinion evidence. We
6
We note that a conclusion that a miner does not suffer from
legal pneumoconiosis based on a negative x-ray might be construed
as hostile or contradictory to the BLBA because 20 C.F.R. § 718.201allows a miner to prove pneumoconiosis based on medical opinion
evidence even in the absence of qualifying X-rays.
19
note that on remand, the ALJ should be more explicit about the
relative credentials of the doctors as well.
Because we vacate the award of benefits, we need not address
Westmoreland’s argument that the ALJ erred by awarding benefits
payable beginning with the month in which Amick filed his claim,
pursuant to the default entitlement date provided for in 20 C.F.R.
§ 725.503.
III.
For the foregoing reasons, we vacate the award of benefits and
remand to the ALJ for reconsideration of the medical opinion
evidence.
VACATED AND REMANDED
20