Dante Coal Co. v. Director, Office of Workers' Compensation Programs

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1360
DANTE COAL COMPANY,
Petitioner,
versus
DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
NORA JONES, on behalf of Stanley Jones,
Respondent,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(03-278-BLA)
Argued: October 25, 2005 Decided: January 26, 2006
Before WILKINS, Chief Judge, and WILKINSON and GREGORY, Circuit
Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the majority
opinion, in which Judge Wilkinson joined. Chief Judge Wilkins
wrote a dissenting opinion.
ARGUED: William Steele Mattingly, JACKSON KELLY, P.L.L.C.,
Morgantown, West Virginia, for Petitioner. James Hook, Waynesburg,
Pennsylvania, for Respondents. ON BRIEF: Ashley M. Harman, JACKSON
KELLY, P.L.L.C., Morgantown, West Virginia, for Petitioner.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
GREGORY, Circuit Judge:
This appeal concerns a twenty-six-year-old dispute over the
award of black lung benefits to claimant Stanley Jones (“Jones”).
For the second time, Dante Coal Company (“Dante”) asks this Court
to reverse an order of the Benefits Review Board (the “Board”)
affirming an administrative law judge’s (“ALJ”) award of black lung
benefits to Jones. Dante contends that the ALJ erred by failing to
reconsider fully all the pertinent evidence and by relying on a
revised definition of pneumoconiosis without allowing the parties’
experts to reevaluate the evidence. Finding no error, we affirm
the Board’s decision.
I.
A.
Jones, born on January 13, 1921, worked in the coal mines of
West Virginia for thirty-two years until he was laid off in 1981.
J.A. 286. He also smoked cigarettes for nearly forty years, until
1978, and began to experience respiratory difficulties while
working for Dante (formerly Badger Coal Company and Wolverine
Mining Company), his final coal mine employer. J.A. 25.
On October 19, 1979, Jones filed an application for lifetime
black lung benefits under Title IV of the Federal Coal Mine Health
and Safety Act of 1969, as amended, 30 U.S.C. §§ 901-945 (“Black
Lung Benefits Act” or the “Act”). In his application, Jones
2
asserted that he suffered from a coal dust-induced disorder called
pneumoconiosis. As he filed his claim before April 1, 1980, the
effective date of the permanent regulations governing black lung
benefits, his claim must be adjudicated under interim regulations
found in 20 C.F.R. Part 727.1
This case, adjudicated before three different ALJs, involves
a complicated procedural history, most of which is not relevant
here. Accordingly, we limit our recitation to those facts
pertinent to our discussion, beginning with the second ALJ’s denial
of Jones’s claim for benefits in 1997. Jones opted not to appeal
that determination and instead, he filed a petition for
modification under 20 C.F.R. § 725.310 based on new evidence. J.A.
30-31. Section 725.310 provides that a party may request
modification of the denial of benefits within one year of the
denial on the grounds that a change in conditions has occurred or
because the previous decision reflected a mistake in the
determination of a fact, or in the ultimate determination of the
claimant’s entitlement to benefits. 20 C.F.R. § 725.310(a) (1979);
see also Jesse v. Dir., OWCP, 5 F.3d 723, 725 (4th Cir. 1993).
1
Under the interim regulations, claimants with at least ten
years of coal mine employment are entitled to a presumption of
total disability due to pneumoconiosis if chest x-rays are positive
for pneumoconiosis, ventilatory studies yield qualifying results,
blood gas studies produce qualifying results, or if other medical
evidence, including the well-reasoned opinion of a medical doctor,
establishes the existence of a totally disabling respiratory or
pulmonary impairment. See 20 C.F.R. § 727(a)(1)-(4).
3
In support of his petition for modification, Jones submitted
an expert report from Dr. Roger Abrahams. Dante responded with the
medical reports of Drs. James Castle and Gregory Fino. All three
physicians found that Jones was not suffering from medical
pneumoconiosis, which “refers to the lung disease caused by
fibrotic reaction of the lung tissue to inhaled dust, which is
generally visible on chest x-ray films as opacities.” Hobbs v.
Clinchfield Coal Co., 917 F.2d 790, 791 (4th Cir. 1990). The
physicians, however, disagreed over whether Jones was suffering
from legal pneumoconiosis, a broader class of disorders. Legal
pneumoconiosis is “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 (1979); see also
Hobbs, 917 F.2d at 791 (“Legal pneumoconiosis refers to all lung
diseases which meet the statutory or regulatory definition of being
any lung disease which is significantly related to, or
substantially aggravated by, dust exposure in coal mine
employment.”).2 Additionally, all of the physicians found that
2
Legal pneumoconiosis “is not limited to, coal workers’
pneumoconiosis [i.e., medical pneumoconiosis], anthracosilicosis,
anthracosisanthro-silicosis, massive pulmonary fibrosis,
progressive massive fibrosis silicosis, or silicotuberculosis
arising out of coal mine employment.” 20 C.F.R. § 727.202 (1979).
Rather, it has “a broad definition, one that effectively allows for
the compensation of miners suffering from a variety of respiratory
problems that may bear a relationship to their employment in the
coal mines.” Rose v. Clinchfield Coal Co., 614 F.2d 936, 938 (4th
Cir. 1980). For example, it includes emphysema, asthma, and
chronic bronchitis, if triggered by coal mine employment. Hughes
4
Jones had a pulmonary obstructive disorder, but disagreed as to
whether this disorder was due to the combined effects of coal mine
dust exposure and cigarette smoke or simply the latter.
B.
Jones relied on Dr. Abrahams’s opinion to demonstrate his
entitlement to a presumption of total disability due to
pneumoconiosis. Dr. Abrahams, B-reader3 and board-certified
internal medicine physician with a subspecialty in pulmonary
diseases, examined Jones on June 4, 1998. In a report generated in
1999, Dr. Abrahams noted, inter alia, that Jones had a chronic,
productive cough; no history of pneumonia or tuberculosis; a
moderate obstructive ventilatory impairment; negative chest x-ray
and CT scan; mild hypoxia; chronic wheezing; dyspnea on exertion;
and asymptomatic gastroesophageal reflux disease. J.A. 226-27.
Although Dr. Abrahams observed that on June 4, 1998, Jones had a
moderate obstructive ventilatory impairment with very significant
bronchoreversibility,4 studies performed in 1995 and 1999 showed a
v. Clinchfield Coal Co., 21 Black Lung Rep. 1-134 (Ben. Rev. Bd.
1999); Robinson v. Dir., OWCP, 3 Black Lung Rep. 1-798.7 (Ben. Rev.
Bd. 1982); Tokarcik v. Consolidation Coal Co., 6 Black Lung Rep. 1-
666 (Ben. Rev. Bd. 1983).
3
B-readers are physicians who have passed an exam indicating
that they are proficient in interpreting x-rays for the presence of
pneumoconiosis and other diseases. 20 C.F.R. § 718.202(a)(1)(E)
(2005).
4
Bronchoreversibility refers to the reduction in airway
obstruction that results when bronchodilator medications are
administered to a person with a reversible airway obstruction. See
5
moderate obstructive airway impairment without marked
reversibility. J.A. 227. During his deposition, Dr. Abrahams
explained why Jones responded to bronchodilator medications in
1998, but not in 1999. Dr. Abrahams opined that there was no
improvement in 1999 because Jones had achieved his maximal level of
dilation before the test was administered in 1999, most likely
through the use of prescribed bronchodilator medications. J.A.
259-60. Importantly, even after the administration of the
bronchodilator medications, Jones still exhibited a significant
amount of obstruction, which rendered him disabled under the
relevant regulations. Thus, Dr. Abrahams’s review of the
ventilatory studies led him to conclude that Jones suffers from a
totally disabling respiratory condition.
With regard to causation, Dr. Abrahams expressed a view that
“[b]oth coal dust and cigarette smoke can cause bronchitis and
obstructive airway disease and on an individual basis it is
impossible to determine the degree to which each factor contributed
to the impairment.” J.A. 229. Accordingly, he concluded that
Jones has moderate obstructive airway disease due to the combined
effects of industrial bronchitis (as a result of coal dust
exposure) and cigarette smoke. J.A. 229. In his report, Dr.
Abrahams cited various studies for the principles that (1) chronic
J.A. 103. According to Drs. Castle and Fino, pneumoconiosis does
not respond to bronchodilator medications because coal dust does
not cause a reversible obstruction. See, e.g., J.A. 103.
6
coal dust exposure can cause chronic bronchitis and chronic airflow
obstruction, (2) one can have a negative x-ray and still suffer
from the deleterious effects of coal dust exposure, and (3) smoking
and coal dust have additive effects on airway obstruction. J.A.
228.
C.
Dante offered the opinions of Drs. Castle and Fino to rebut
the presumption of total disability due to pneumoconiosis. They
both contended that Jones does not have pneumoconiosis and
attributed Jones’s respiratory difficulties to factors other than
coal dust inhalation. We turn first to Dr. Castle’s evaluation.
Dr. Castle, a B-reader and board-certified internal medicine
physician with a subspecialty in pulmonary diseases, evaluated
Jones on May 4, 1999. Although Dr. Castle acknowledged that Jones
had sufficient exposure to coal dust as to have developed
pneumoconiosis, he did not find any signs of coal workers’
pneumoconiosis on physical examination, radiographic evaluation,
physiologic testing, or examination of arterial blood gas levels.
J.A. 56, 104.
Instead, Dr. Castle diagnosed Jones as suffering from a
moderate airway obstruction due to tobacco smoke and chronic
obstructive pulmonary disease. J.A. 56. He arrived at this
conclusion for several reasons. Dr. Castle noted the absence of
several symptoms associated with medical pneumoconiosis. For
7
example, he observed that the vast majority of radiologists and B-
readers did not see radiographic evidence of coal workers’
pneumoconiosis. J.A. 63. He did not find evidence of an
interstitial pulmonary process on physical exam as there were no
rales, crackles, or crepitations on a regular basis. J.A. 63. He
found that Jones’s physiologic studies suggested moderate airway
obstruction without any diffusion abnormality. J.A. 63. According
to Dr. Castle, “where one has significant interstitial fibrosis
[i.e., scarring] or fibrosis of a severe degree or significant
degree, then one would expect the diffusing capacity to be
abnormal.” J.A. 117-18.
Several other characteristics of Jones’s impairment led Dr.
Castle to conclude that Jones is not afflicted with pneumoconiosis.
Dr. Castle found that Jones did not have a restrictive impairment
(i.e., Jones had normal lung volumes). J.A. 63. To Dr. Castle,
this finding was not suggestive of pneumoconiosis because “[w]hen
coal workers’ pneumoconiosis causes clinically significant
impairment, it does so generally by causing a mixed, irreversible
obstructive and restrictive ventilatory impairment.” J.A. 63
(emphasis added). Dr. Castle further stated that the fact that
Jones’s respiratory condition improved in response to
bronchodilator medications signaled that his condition is not coal
dust-induced, because chronic dust-induced lung diseases are not
typically associated with a reversible airway obstruction. J.A.
8
103. He dismissed Dr. Abrahams’s conclusion that the obstruction
is a manifestation of industrial bronchitis, because Dr. Castle
said industrial bronchitis is a condition that only occurs while
one is actively exposed to coal dust and that it disappears six
months after the coal mine employment has ended. J.A. 64. He also
maintained that Jones did not disclose to him a history of a
productive cough5 and thus that Jones did not meet the criteria for
chronic bronchitis. J.A. 101.
Dr. Fino, a B-reader and board-certified internal medicine
physician with a subspecialty in pulmonary diseases, reviewed the
reports and testing of other physicians in rendering his opinion,
but did not conduct any independent examinations or testing.
Although he found that Jones had worked in the coal mines long
enough to develop coal worker’s pneumoconiosis, J.A. 179, he
nonetheless concluded that Jones does not suffer from an
occupationally acquired pulmonary condition. J.A. 82. While Dr.
Fino also found that Jones suffers from a disabling respiratory
condition and has an obstructive ventilatory abnormality, he
concluded that it is not due to coal dust inhalation, but rather to
smoking. J.A. 83.
5
In fact, Dr. Castle’s report states that Jones’s cough was
“generally” nonproductive. J.A. 53 (emphasis added). Yet, in his
deposition, Dr. Castle testified that Jones had a dry cough. J.A.
100.
9
Dr. Fino arrived at his conclusion for several reasons. Like
Dr. Castle, he ruled out pneumoconiosis based on an absence of
symptoms typically associated with medical pneumoconiosis. First,
he found that the x-ray evidence did not support a finding of
pneumoconiosis. J.A. 82. Second, he noted that much of the
medical data was not indicative of fibrosis of the lung tissue.
For example, the pulmonary function studies showed an obstructive
ventilatory abnormality, but there was no evidence of interstitial
abnormality. J.A. 82. He noted that Jones’s lungs had normal
diffusing capacities, and thus, there could not be a significant
pulmonary fibrosis preventing the passage of air from the lungs to
the blood. J.A. 82, 173. Likewise, he found that Jones had
elevated lung volumes, not consistent with fibrosis, which results
in lower lung volumes. J.A. 83. He also concluded that the
variability of Jones’s condition was not consistent with
pneumoconiosis, because coal dust causes permanent fibrosis. J.A.
170.
Dr. Fino provided some additional justifications for
concluding that Jones is not suffering from pneumoconiosis. He
observed that the flow of air through Jones’s small airways was
more reduced than the flow of air through Jones’s large airways.
J.A. 82. According to Dr. Fino, this finding, coupled with his
belief that coal dust cannot reach the lungs’ small airways,
suggested a smoke-induced condition. J.A. 186. Dr. Fino dismissed
10
the possibility that Jones suffers from an obstructive lung disease
in miners called “industrial bronchitis” because he claimed that
such a condition clears up within six to twelve months of leaving
the mines. J.A. 176.
Upon the OWCP’s denial of Jones’s petition for modification on
February 18, 1998, the case was once again referred to the Office
of Administrative Law Judges. J.A. 286. At this time, the case
was assigned to Judge Daniel Leland, the third ALJ to consider
Jones’s case. After reviewing x-ray results, pulmonary function
studies, blood gas tests, and the three physicians’ medical
reports, Judge Leland found a change of circumstances. Based on
the evidence before him, Judge Leland concluded that Jones was
entitled to a presumption of disability based on four qualifying
ventilatory studies and Drs. Abrahams and Fino’s conclusion that
Jones suffers from a totally disabling respiratory impairment.6
J.A. 292. Finding that Dante failed to rebut the presumption,
6
Unlike Drs. Fino and Abrahams, Dr. Castle did not consider
Jones to be disabled based on his lung function. J.A. 124.
Instead, he concluded that Jones was disabled as a result of his
cardiac disease and age. J.A. 124. Importantly, as noted by Judge
Leland in his initial opinion, Dr. Castle’s assessment that Jones’s
pulmonary function placed him above federal disability levels, J.A.
64, was based on the final regulations, which are not applicable to
Jones, rather than the interim regulations. J.A. 292. At
deposition, Dr. Castle admitted that he was not familiar with the
Department of Labor’s 1979 standards. J.A. 131-32. Thus, Judge
Leland properly discredited Dr. Castle’s determination of
nondisability, because Dr. Castle evaluated Jones according to the
wrong disability standards. J.A. 292.
11
Judge Leland awarded black lung benefits on February 9, 2000, a
finding the Board affirmed on April 20, 2001. J.A. 294, 302.
Thereafter, Dante appealed the Board’s order to this Court.
J.A. 304. At that time, we held that Judge Leland erred in relying
on a conclusion that pneumoconiosis is always a progressive and
irreversible disease to discredit Dante’s experts. See Dante Coal
Co. v. Jones, 37 Fed. Appx. 637, 639 (4th Cir. June 11, 2002)
(unpublished). We stated that the conclusion that all forms of
pneumoconiosis are progressive and irreversible, even if correct,
would not serve to discredit Drs. Castle and Fino’s other bases for
concluding that Jones does not have pneumoconiosis, nor would such
a conclusion advance Jones’s position because Dr. Abrahams had
testified that pneumoconiosis can be reversible. Id. We vacated
the Board’s decision and remanded to the Board “for further remand
to the ALJ so that he may properly weigh the relevant evidence.”
Id. at 639-40.
In his December 20, 2002 opinion on remand, Judge Leland again
awarded benefits, based on a finding that Dante’s evidence did not
rebut Jones’s presumption of disability. J.A. 312. Judge Leland
started from the premise that Jones is totally disabled due to
pneumoconiosis, because Dante did not challenge his earlier
determination that Jones is entitled to the presumption based on
qualifying ventilatory studies and reasoned medical opinions. J.A.
309. He also adopted his earlier conclusion that Dante could not
12
rebut the presumption by showing that Jones is doing coal mine or
comparable work (see 20 C.F.R. § 727(b)(1)) or that he is capable
of doing such work (see 20 C.F.R. § 727(b)(2)), because Dante had
not appealed that determination. Indeed, each of the doctors
agreed that Jones is disabled, thus incapable of doing coal mine or
comparable work, whether because of his age, cardiac condition, or
pulmonary problems. J.A. 83, 124, 248-49. Accordingly, Judge
Leland devoted his opinion to examining whether Dante had rebutted
the presumption by showing that there was no causal relationship
between Jones’s total disability and coal mine employment (see 20
C.F.R. § 727(b)(3)) or by showing that Jones does not have medical
or legal pneumoconiosis (see 20 C.F.R. § 727(b)(4)). J.A. 309. He
concluded that Dante had not carried its burden to rebut the
presumption because Drs. Castle and Fino’s opinions were based on
questionable reasoning.
The Board affirmed the award of benefits on January 30, 2004,
with one judge dissenting. J.A. 314-22. Dante again petitioned
this Court for review of the Board’s decision.
II.
This Court must assess whether the Board properly concluded
that the ALJ’s decision was supported by substantial evidence.
Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998).
In so doing, we perform an independent review of the record to
13
determine whether the ALJ’s findings of fact are supported by
substantial evidence. Consolidation Coal Co. v. Held, 314 F.3d
184, 186 (4th Cir. 2002) (citing Island Creek Coal Co. v. Compton,
211 F.3d 203, 207 (4th Cir. 2000)). Although we must make an
independent examination of the evidence, we may not “set aside an
inference merely because [we] find[] the opposite conclusion more
reasonable or because [we] question[] the factual basis.” Doss v.
Dir., OWCP, 53 F.3d 654, 659 (4th Cir. 1995) (quoting Smith v.
Dir., OWCP, 843 F.2d 1053, 1057 (7th Cir. 1988)).
Substantial evidence is evidence which “a reasonable mind
might accept as adequate to support a conclusion.” NLRB v.
Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262, 1269 (4th Cir. 1994)
(internal quotation marks omitted). It “consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001)
(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
As an initial matter, we must ensure that the ALJ has complied
with the Administrative Procedures Act (“APA”) by analyzing “all of
the relevant evidence” and providing “a sufficient explanation for
[his] ‘rationale in crediting certain evidence.’” Bill Branch Coal
Corp. v. Sparks, 213 F.3d 186, 190 (4th Cir. 2000) (quoting Milburn
Colliery Co., 138 F.3d at 528). An ALJ discharges this duty only
when he analyzes all the relevant evidence and provides an
explanation for his decision to credit particular pieces of
14
evidence over others. Arnold v. Sec. of HEW, 567 F.2d 258, 259
(4th Cir. 1977) (“Unless the [ALJ] has analyzed all evidence and
has sufficiently explained the weight he has given to obviously
probative exhibits, to say that his decision is supported by
substantial evidence approaches an abdication of the court’s duty
to scrutinize the record as a whole to determine whether the
conclusions reached are rational.” (quotation marks and citations
omitted)). The ALJ’s duty is to provide an explanation sufficient
for him to reach the correct result and so that this Court can
discharge its duty. Lane Hollow Coal Co. v. Dir., OWCP, 137 F.3d
799, 803 (4th Cir. 1994). “If this Court understands what the ALJ
did and why he did it, we, and the APA, are satisfied.” Id.The claims of persons like Jones who filed requests for black
lung benefits before April 1, 1980, are reviewed under the interim
regulations at 20 C.F.R. Part 727. Mullins Coal Co. v. Dir., OWCP,
484 U.S. 135, 137-38 (1987). Under those regulations, a miner with
ten years of experience in the mining industry is presumed to be
totally disabled due to pneumoconiosis if any of the following
conditions is met:
(1) a chest x-ray, biopsy, or autopsy establishes the existence of
pneumoconiosis;
(2) ventilatory studies establish the presence of a chronic
respiratory or pulmonary disease of a certain severity and
duration;
(3) blood gas studies demonstrate impairment in the transfer of
oxygen from the lungs to the blood;
15
(4) other medical evidence, including a reasoned medical opinion,
demonstrates the presence of a totally disabling respiratory
or pulmonary impairment.
20 C.F.R. § 727.203(a). Once the claimant establishes entitlement
to the presumption of disability due to pneumoconiosis, the
employer carries the burden of rebutting that presumption. Id.The presumption shall be rebutted if:
(1) the individual is doing his usual coal mine work or comparable
work;
(2) the claimant is able to do his usual coal mine work or
comparable work;
(3) the 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).
Dante concedes that Jones is entitled to the presumption of
disability due to pneumoconiosis under 20 C.F.R. § 727.203(a)(2)
and (a)(4) because of his qualifying ventilatory studies and
reasoned medical opinions. Dante further acknowledges that
rebuttal is not possible under 20 C.F.R. § 727.203(b)(1) or (b)(2)
as Jones is not presently performing, or able to perform, coal mine
or similar work. Dante, however, maintains that the ALJ erred in
finding that it did not rebut Jones’s presumption of disability
under 20 C.F.R. § 727.203(b)(3) or (b)(4).
Rebuttal under 20 C.F.R. § 727.203(b)(3) “is not easy.” Lane
Hollow Coal Co., 137 F.3d at 804. To rebut under 20 C.F.R. §
727.203(b)(3), an employer must rule out any causal relationship
16
between the miner’s disability and coal mine employment. Id.Where multiple factors contribute to the coal miner’s total
disability, the employer is obliged to show that “the miner’s
primary condition, whether it be emphysema or some other pulmonary
disease, was not aggravated to the point of total disability by
prolonged exposure to coal dust.” Bethlehem Mines Corp. v. Massey,
736 F.2d 120, 124 (4th Cir. 1984).
Rebuttal at 20 C.F.R. § 727.203(b)(4) requires a showing that
the miner does not have medical or legal pneumoconiosis. Barber v.
Dir., OWCP, 43 F.3d 899, 901 (4th Cir. 1995); see also Biggs v.
Consolidation Coal Co., 8 Black Lung Rep. 1-317, 1-322 (Ben. Rev.
Bd. 1985). For the reasons elucidated below, we conclude that the
ALJ’s determination that Dante did not rebut the presumption of
disability due to pneumoconiosis is supported by substantial
evidence.
III.
A.
Dante maintains that the ALJ’s decision is not supported by
substantial evidence because he dismissed in toto the opinions of
Drs. Castle and Fino based on a conclusion that they failed to
consider legal pneumoconiosis. As a consequence, Dante contends
that the ALJ’s decision must be vacated because he failed to
consider relevant evidence and, in so doing, failed to discharge
17
his duty, and to abide by the directives of our previous opinion.
Because we believe that the ALJ properly considered and discredited
Drs. Castle and Fino’s reasons for concluding that Jones does not
have pneumoconiosis, we find Dante’s assertion to be without merit.
The ALJ correctly dismissed several of Drs. Castle and Fino’s
reasons for concluding that Jones does not have pneumoconiosis,
because they reflected a preoccupation with medical rather than
legal pneumoconiosis. As stated above, medical and legal
pneumoconiosis are distinct concepts, see Hobbs, 917 F.2d at 791,
and to rebut the presumption of disability, Dante must address both
conditions. Medical pneumoconiosis can generally be detected by x-
ray and is characterized by fibrosis. Hobbs, 917 F.2d at 791; see
also J.A. 200-01. Thus, the ALJ properly rejected Drs. Castle and
Fino’s assertions that if Jones were suffering from pneumoconiosis,
he would manifest an abnormal diffusing capacity indicative of a
fibrotic process, because fibrosis is not a required element of
legal pneumoconiosis. J.A. 311. Likewise, in addressing Dr.
Fino’s impression that Jones’s elevated lung volumes were not
indicative of a fibrotic process, the ALJ correctly observed that
Dr. Fino was concerned with medical rather than legal
pneumoconiosis.7 J.A. 311; see also Cornett v. Benham Coal, Inc.,
7
For the same reason, the ALJ implicitly rejected Drs. Castle
and Fino’s contentions that the absence of interstitial abnormality
or x-ray evidence of pneumoconiosis suggests that Jones does not
have pneumoconiosis. These symptoms are associated with medical,
but not necessarily legal pneumoconiosis.
18
227 F.3d 569, 576 (6th Cir. 2000) (reversing the Board’s decision
to affirm a denial of benefits, in part, because Dr. Fino failed to
consider legal pneumoconiosis when he concluded that the lack of
fibrosis suggested that the claimant did not have pneumoconiosis).8
Thus, while the ALJ discredited some of Drs. Castle and Fino’s
assessments based on their heavy preoccupation with symptoms
associated with medical rather than legal pneumoconiosis (such as
fibrosis), he did not discredit their opinions as a whole based on
their alleged failure to discuss legal pneumoconiosis. Rather, as
shown below, the ALJ carefully considered and analyzed each of the
reasons Drs. Castle and Fino cited for concluding that Jones does
not have pneumoconiosis.
The ALJ considered Dr. Castle’s conclusion that Jones does not
suffer from a coal-induced impairment because he did not have a
“mixed, irreversible obstructive and restrictive ventilatory
impairment” indicative of pneumoconiosis. The ALJ properly
accorded Dr. Castle less weight because his opinion was counter to
8
We also note that Dr. Fino has expressed hostility toward the
Act in asserting a belief, for example, that coal mine dust
inhalation does not result in obstructive lung disease. See, e.g.,
Freeman United Coal Mining Co. v. Summers, 272 F.3d 473, 483 n.7
(7th Cir. 2001) (“Dr. Fino stated . . . that ‘there is no good
clinical evidence in the medical literature that coal dust
inhalation in and of itself causes significant obstructive lung
disease.’”). The Department of Labor has rejected Dr. Fino’s view
as “not in accord with the prevailing view of the medical community
or the substantial weight of the medical and scientific
literature.” Id. (quoting 65 Fed. Reg. 79,920, 79,939 (Dec. 20,
2000)).
19
the case law, which holds that an “obstructive impairment without
a restrictive impairment may be considered legal pneumoconiosis.”9
J.A. 310 (internal citations omitted).
The ALJ correctly concluded that Dr. Fino’s findings regarding
the relative flow of air through Jones’s small and large airways
was insufficient to rule out coal dust exposure as a contributor to
Jones’s impairment. Dr. Fino found that the flow of air through
Jones’s small airways was more reduced than the flow of air in his
large airways. He attributed this finding to a smoking-induced
disorder, because cigarette smoke can reach the lungs’ small
airways, whereas coal dust cannot. However, as the ALJ noted, Dr.
Fino did not explain how coal mine dust could be eliminated as a
factor in Jones’s impairment “when the values for the airflow in
both the small and large airways varied over time.” J.A. 310-11
(emphasis added). Dr. Fino thus failed to address the ample
evidence of reduced airflow in Jones’s large airways.10 This
failure undermines Dr. Fino’s report, because even if the reduced
airflow in the small airways was due to smoking, Dr. Fino did not
9
For the same reasons, the ALJ found that Dr. Castle’s
conclusion that Jones did not have reduced lung volumes (indicative
of a restrictive impairment) did not bear on whether Jones has
legal pneumoconiosis as legal pneumoconiosis includes obstructive
disorders that do not have a restrictive component. J.A. 310.
10
Each of the four pulmonary function studies that Jones has
undergone since 1991 showed reduced flow of air through the Jones’s
large airways, as measured by the volume of air that Jones could
forcefully expire in one second. J.A. 292, 82.
20
eliminate coal dust as a contributor to the reduction in the flow
of air through Jones’s large airways. At most, Dr. Fino’s
conclusion regarding the relative flow of air in Jones’s small and
large airways demonstrates that smoking had a deleterious effect on
Jones’s respiratory condition, a fact that is not in dispute.
The ALJ also considered and rejected Drs. Castle and Fino’s
contention that the fact that the pulmonary function studies showed
a significant degree of reversibility in airway obstruction was
sufficient to rule out coal mine dust as a factor. The ALJ reached
this conclusion because the most recent pulmonary function studies
showed minimal reversibility and Dante’s experts did not state how
much reversibility is necessary to eliminate coal dust as a causal
factor. J.A. 311. We find no error in the ALJ’s decision to
accord more weight to the more recent pulmonary function studies,
which did not show a significant degree of bronchoreversibility.
Travis v. Peabody Coal Co., 1 Black Lung Rep. 1-314, 1-320 (Ben.
Rev. Bd. 1977) (finding that if pneumoconiosis is progressive and
irreversible, the most recent medical evidence is more probative
than older information);11 Lane Hollow, 137 F.3d at 804 (applying
11
This Court rejected the “later [evidence] is better” standard
where earlier and later pulmonary function studies produce
irreconcilable results, i.e., where the later evidence shows signs
of improvement, which run counter to the prevailing view that
pneumoconiosis is a progressive disease. Adkins v. Dir., OWCP, 958
F.2d 49, 51-52 (4th Cir. 1992). We reasoned that under those
limited circumstances an ALJ cannot simply assume that later
evidence is better because the evidence suggests that one of the
pieces of evidence is actually in error and the later study is just
21
later is better principle where the earlier x-rays were negative
and later x-rays were positive for pneumoconiosis and were thus
consistent with the progressive nature of pneumoconiosis). Nor do
we believe the ALJ erred in discrediting Drs. Fino and Castle’s
opinions as they did not account for the most recent pulmonary
function studies, which constitute probative evidence in the
record. Milburn Colliery Co., 138 F.3d at 534 (holding that the
ALJ erred in crediting a physician who had not considered all the
relevant evidence regarding the claimant’s condition); see also
Stark v. Dir., OWCP, 9 Black Lung Rep. 1-36, 1-37 (Ben. Rev. Bd.
1986) (“[A]n administrative law judge may legitimately assign less
weight to a medical opinion which presents an incomplete picture of
the miner’s health.”).
as susceptible to error as the earlier. Id. Here, the 1998 and
1999 data can be reconciled and thus it is proper to accord the
most recent evidence greater weight. Dr. Abrahams provides a
logical explanation for the fact that bronchodilator treatment in
1998 resulted in improvement whereas in 1999 there was no
improvement:
On that first [breathing] test, he improved after the
bronchodilator medication. When he came back the second
time, his baseline test before giving him a
bronchodilator was similar to the first test after the
bronchodilator. So, basically, when he came back the
second time, when we gave him the bronchodilator, there
was no improvement on the test, sort of suggesting that
he’s sort of at his level of maximum improvement.
J.A. 259-60. Importantly, even though the 1998 study reflected
significant reversibility, even with the improvement, Jones still
manifested a respiratory or pulmonary disability pursuant to the
regulations. Thus the bronchodilator medications aided Jones,
but only to a limited degree.
22
We also find no error in the ALJ’s decision to reject Drs.
Castle and Fino’s conclusion that the fact that Jones did not
always have a productive cough suggested that he does not have
industrial bronchitis.12 The ALJ properly discredited their
opinions on the grounds that Dr. Castle was the only physician not
to report a productive cough.13 J.A. 312.
Indeed, from 1976 to 1998, at least five physicians found that
Jones experienced a productive cough and Dr. Castle’s report was
not inconsistent with the earlier findings. See J.A. 69, 70, 72,
73, 77. Only Dr. Castle’s deposition testimony and Dr. Fino’s
consultative report contradict the consistent reports of productive
cough. In his deposition, Dr. Castle testified that during his
evaluation of Jones, Jones complained of a cough that was “dry, not
productive of mucus.” J.A. 100. Likewise, in his report, Dr. Fino
stated that Jones had complained to Dr. Castle of a “dry cough.”
J.A. 79. In fact, however, Dr. Castle’s report, a summary of his
12
Under the prevailing view, industrial bronchitis “is
characterized by cough and mucous production.” See, e.g., J.A. 82
(“Minimal obstructive lung disease has been described in working
coal miners and has been called industrial bronchitis. This
condition is characterized by cough and mucous production . . .
.”).
13
Dante makes much of the fact that in 1995, a technician
commented that Jones had “[shortness of breath], but no cough.”
J.A. 234. According to Dante, this proves that Jones had a
variable history of cough. However, given that all of the
physicians who have evaluated Jones, including Dr. Castle, noted a
history of cough, we think it appropriate for the ALJ to have
discredited the technician’s uncorroborated remark.
23
findings on the date of evaluation, states that Jones had “a cough
some of the time but generally this is a dry cough, not productive
of any mucus.” J.A. 53 (emphasis added). Accordingly, we find
that the ALJ’s refusal to ignore the consistent reports of
productive cough was rational, particularly when Dr. Castle’s
written report does not state that Jones did not have a productive
cough.14 Because Drs. Castle and Fino seemingly ignored the
multiple reports of productive cough in finding that Jones does not
exhibit symptoms of industrial bronchitis, we conclude that the ALJ
properly found that Drs. Castle and Fino’s opinions are not
entitled to considerable weight. Milburn Colliery Co., 138 F.3d at
534.15
14
Likewise, the ALJ could have discredited Drs. Castle and
Fino’s conclusion that Jones does not have industrial bronchitis on
additional grounds. For instance, the ALJ could have found that
both Drs. Castle and Fino failed to rebut the presumption because
they did not suggest that industrial bronchitis is capable of cure.
See J.A. 198, 222. Rather, they simply expressed a belief that the
“symptoms” of industrial bronchitis abate after one leaves the
mines. See J.A. 198, 217-18. Accordingly, their conclusions were
not in conflict with those of Dr. Abrahams, who explained that
the symptoms of the mucus production and the cough can
improve in some people who are removed from the source of
the bronchitis. And even the pulmonary function test can
improve to a small degree; but, certainly, plenty of
people are left with permanent obstructive airway
disease, you know, from chronic bronchitis.
J.A. 250-51.
15
Although an ALJ cannot just perform a numerical count of the
opinions and assume that the correct position is that which is
shared by the greatest number of physicians, see Sterling Smokeless
Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir. 1997), this was not
24
In sum, we find that the ALJ considered and provided a
thorough treatment of each of the evidentiary bases for Drs. Castle
and Fino’s determination that Jones is not suffering from a coal-
induced or coal-aggravated respiratory or pulmonary impairment.
Since we understand the ALJ’s basis for finding that Dante had not
met its onerous burden to establish rebuttal under 20 C.F.R. §
727.203(b)(3) or (b)(4), “we, and the APA, are satisfied.” Lane
Hollow Coal Co., 137 F.3d 799 at 803.16
B.
Dante, like the dissenting judge on the Board, contends that
the ALJ erred in not evaluating Dr. Abrahams’s evidence on remand.
Again, we must disagree. The ALJ was not required to address Dr.
what the ALJ did here. Rather, the ALJ permissibly failed to
credit the physicians who did not account for the frequent,
credible reports of productive cough consistent with industrial
bronchitis.
16
Dante argues that the ALJ erred in failing to address his
previous reason for discrediting Drs. Castle and Fino’s conclusion
that Jones is not suffering from industrial bronchitis, namely that
pneumoconiosis is an irreversible and progressive disease. We
disagree. Dante strains our previous decision in asserting that we
instructed the ALJ to examine again whether pneumoconiosis is
necessarily a progressive and irreversible impairment. In that
opinion, we merely indicated that even if pneumoconiosis is
progressive and irreversible, that conclusion would not be enough
to dispose of the question of whether Dante had rebutted the
presumption of total disability due to pneumoconiosis. In so
doing, we effectively instructed the ALJ to review all of the
evidence Dante presented in rebuttal and not merely to dismiss the
rest of the evidence without considering it. In performing a
thorough analysis of the various reasons Dante propounded in an
effort to show that Jones is not suffering from a coal-induced
respiratory disorder, the ALJ has complied with our instructions
and with the mandate of the APA.
25
Abrahams’s evidence of total disability anew because his inquiry
was properly confined to the narrow question of whether Dante had
rebutted the presumption. Since Dante conceded that Jones has met
the presumption, the ALJ did not need to discuss Dr. Abrahams’s
evaluation as it was not relevant to the rebuttal of the
presumption. See Mullins Coal Co., 484 U.S. at 150 (“[N]othing in
the regulation requires all relevant medical evidence to be
considered at the rebuttal phase; such evidence must simply be
admissible at some point during the proof process.”). Since the
ALJ gave a thorough treatment of Dr. Abrahams’s evidence in his
initial opinion invoking the presumption, he did not need to
revisit that evidence on remand.
Moreover, the ALJ was not obligated to discuss Dr. Abrahams’s
findings because it was the employer who had the burden of
rebutting the presumption of total disability due to
pneumoconiosis. If an employer does not meet its burden, the
employee necessarily prevails without producing any evidence beyond
that which gave rise to the presumption. Barber, 43 F.3d at 901(employer loses where it fails to rebut the employee’s presumption
of total disability). To find otherwise, would be to impose an
additional burden of production on the employee that is not
manifest in the Act. This, the law does not require. Accordingly,
we find Dante’s contention to be without merit.
26
C.
We now turn to Dante’s final claim that the ALJ erred in
failing to reopen the evidence after making reference to the newly
codified definition of legal pneumoconiosis. Although the ALJ’s
reference to the new definition of legal pneumoconiosis was perhaps
unnecessary or even ill-advised, it does not constitute an error
requiring reversal.
The ALJ referenced the definition of legal pneumoconiosis now
present in the federal regulations for the premise that an
obstructive impairment alone may constitute legal pneumoconiosis.
He did so as follows:
Dr. Castle dismisses the miner’s coal mine dust exposure
as a cause of his obstructive airways disease because
there was not a “mixed, irreversible obstructive and
restrictive ventilatory impairment.” However, this is
contrary to the case law, which holds that an obstructive
impairment without a restrictive impairment may be
considered legal pneumoconiosis. In addition, the new
regulations codify the case law in defining legal
pneumoconiosis as including “any chronic restrictive or
pulmonary disease arising out of coal mine employment.”
[20 C.F.R.] § 718.201(a)(2)[(2002)](emphasis added).
J.A. 310 (internal citations omitted).17 Dante maintains that the
ALJ committed a due process violation when he failed to reopen the
evidence to allow Dante to address the new definition of legal
17
Under the revised definition, “‘[l]egal pneumoconiosis’
includes any chronic lung disease or impairment and its sequelae
arising out of coal mine employment. This definition includes, but
is not limited to, any chronic restrictive or obstructive pulmonary
disease arising out of coal mine employment.” 20 C.F.R. §
718.201(a)(2).
27
pneumoconiosis. Although there are instances in which reopening
the record is required to safeguard due process rights,18 this is
not one of those instances.
The ALJ’s reference to the revised definition of legal
pneumoconiosis did not prejudice Dante, because the definition was
only cited for a principle that existed in the case law, namely
that pure obstructive diseases can constitute legal pneumoconiosis.
See, e.g., Richardson v. Dir., OWCP, 94 F.3d 164, 167 n.2 (4th Cir.
1996) (“[chronic obstructive pulmonary disease], if it arises out
of coal-mine employment, clearly is encompassed within the legal
definition of pneumoconiosis.” (citing Warth v. Southern Ohio Coal
Co., 60 F.3d 173, 175 (4th Cir. 1995)); see also Heavilin v.
Consolidated Coal Co., 6 Black Lung Rep. 1-1209, 1-1212 (Ben. Rev.
Bd. 1984) (“Dr. Modi identified claimant’s emphysema as moderate
obstructive pulmonary disease and indicated that this condition is
related to dust exposure in claimant’s coal mine employment. We
thus hold that Dr. Modi’s diagnosis of emphysema in this case meets
the statutory and regulatory definition of pneumoconiosis”). As
this principle was manifest in the case law in 1998, at the time
Drs. Castle and Fino evaluated Jones’s condition, and in 2001 when
18
See, e.g., Harlan Bell Coal Co. v. Lemar, 904 F.2d 1042 (6th
Cir. 1990) (employer’s due process rights violated where the ALJ
relied on a decision rendered after the presentation of evidence
was closed, which created a substantial and unanticipated change in
the law without giving the employer an opportunity to respond to
the change in law).
28
Judge Leland issued his first opinion, Dante has had ample
opportunity to address the question of whether an obstructive
disorder without a restrictive component can be pneumoconiosis.
See Faries v. Dir., OWCP, 909 F.2d 170 (6th Cir. 1990) (Since the
new standard “was the applicable standard in effect when
petitioner’s claim was first considered by the ALJ, petitioner’s
assertion that the [Board] took his benefits away solely on a new
interpretation of a regulation without giving him an opportunity to
be heard is baseless.”).
Moreover, Dante does not actually argue that the new
definition of legal pneumoconiosis established for the first time
that a pure obstructive disorder may constitute legal
pneumoconiosis. Instead, at oral argument, Dante argued that the
new definition announced that legal pneumoconiosis encompasses pure
restrictive impairments. Even if Dante is correct that a
restrictive impairment alone was not previously subsumed within the
definition of legal pneumoconiosis, this conclusion has no bearing
here. No one suggests that Jones suffered from a restrictive
impairment. Rather, the physicians concluded that his impairment
was an obstructive one. The ALJ did not refer to the new
definition of legal pneumoconiosis in an effort to draw upon the
conclusion that pure restrictive impairments constitute
pneumoconiosis, but rather to support the uncontroverted and
settled conclusion that a pure obstructive disorder may be legal
29
pneumoconiosis. Accordingly, the ALJ’s limited reference to the
new definition of legal pneumoconiosis did not prejudice Dante and
does not require remand.
IV.
For the reasons outlined above, we affirm the award of black
lung benefits to Jones, because Dante has not carried its burden of
rebutting the presumption of disability due to pneumoconiosis
accorded Jones. We thus decline Dante’s invitation to
unnecessarily prolong this already protracted litigation.
AFFIRMED
30
WILKINS, Chief Judge, dissenting:
The majority denies Dante Coal Company’s petition for review
of the Board order affirming the ALJ’s decision awarding black lung
benefits. Because I would vacate the order and remand for
additional proceedings, I respectfully dissent.
I.
In my view, substantial evidence did not support the ALJ’s
decision to discredit Dr. Castle’s and Dr. Fino’s opinions on the
basis that they were not well reasoned. Indeed, it is the ALJ’s
analysis, not that of Drs. Castle and Fino, that I find to be
poorly reasoned. I will briefly describe the opinions offered by
these doctors and then address the ALJ’s reasons for discrediting
them.
A.
Important to my disagreement with the majority is my
understanding of not only the doctors’ individual reasons for
concluding that Jones’ disability was not coal-dust related but
also how those reasons fit together in a global sense. It was
undisputed that Jones’ extensive exposure to coal dust would have
been sufficient to cause a miner to develop pneumoconiosis, but it
was also clear that other factors, such as Jones’ many years of
cigarette smoking, could cause an impairment of the type Jones had.
The critical questions before the doctors were whether there
31
actually was any causal relationship between Jones’ disability and
his coal mine employment and whether Jones suffered from medical or
legal pneumoconiosis. Both Dr. Castle and Dr. Fino, after
considering Jones’ entire medical history, including a wide range
of factors, answered these questions in the negative. The factors
cited by the doctors as supporting this conclusion served different
purposes: Some supported the proposition that cigarette smoking
caused Jones’ impairment, some tended to show that he did not have
medical pneumoconiosis, and some indicated that he did not suffer
from any other form of legal pneumoconiosis.
Dr. Castle specifically relied on several factors in
concluding that any pulmonary impairment that Jones had was “not
related to coal mining employment, but is the type of impairment
seen with tobacco smoke induced lung disease.” J.A. 64. He noted
that Jones did not have evidence of interstitial fibrosis and that
the x-ray evidence was not indicative of pneumoconiosis. He also
observed that the physiologic studies performed on Jones showed
evidence of “moderate airway obstruction without any restriction or
diffusion abnormality,” a type of impairment “typically seen in
those individuals who have a long history of tobacco abuse,” but
not typically seen “[w]hen coal workers’ pneumoconiosis causes
clinically significant impairment.” Id. at 63.
Also informing Castle’s determination was the fact that Jones’
respiratory condition improved significantly in response to
32
bronchodilator medications. Castle stated that the type of airway
obstruction associated with pneumoconiosis generally is not
reversible. Castle noted that Dr. Abrahams had opined that Jones’
airway obstruction was due to chronic bronchitis. Castle rejected
that notion, however, on the basis that Jones had left the mining
industry many years ago and “[t]he airway obstruction [caused by
chronic bronchitis] generally abates after the exposure [to coal
dust] ceases.” Id. at 64. Because Jones had complained to Castle
of only a dry cough, Castle also ruled out chronic bronchitis since
Jones did not have “a chronic cough productive of mucus on a
regular basis.” Id. at 101. And, Castle reasoned that even if
Jones had had such a cough, it would most likely have been caused
by Jones’ gastroesophageal reflux disease rather than any coal-
related condition.
Dr. Fino’s analysis was generally similar to Dr. Castle’s.
Fino concluded that Jones’ disability “has nothing to do with the
inhalation of coal mine dust,” but rather, “is due to smoking.”
Id. at 83. Like Castle, Fino noted the absence of the usual
indications of medical pneumoconiosis, such as x-ray evidence or
signs of fibrosis of the lung tissue. Fino also reasoned that the
fact that Jones’ small airway flow was proportionally more reduced
than that of his large airways was “consistent with conditions such
as cigarette smoking, pulmonary emphysema, non-occupational chronic
bronchitis, and asthma,” but “not consistent with a coal dust
33
related condition.” Id. at 82. Fino also determined that the
reversibility of Jones’ lung condition--the improvement after
bronchodilator treatment--indicated that it was not coal-dust
related. And, like Castle, Fino specifically ruled out coal-dust
related chronic bronchitis for two independent reasons:
(1) because it “resolves within six months of leaving the mines,”
id., and (2) because the evidence indicated that Jones at times did
not have a mucus-producing cough.
B.
I will now address seriatim the ALJ’s reasons for concluding
that Castle’s and Fino’s opinions were poorly reasoned. The ALJ
first discredited Castle on the basis that he allegedly ruled out
the possibility that Jones’ impairment was coal-dust related
because “there was not a ‘mixed, irreversible obstructive and
restrictive ventilatory impairment.’”* Id. at 310 (quoting Dr.
Castle’s report at J.A. 63). The ALJ concluded that Castle’s
analysis was contrary to the principle established in this circuit
that an obstructive impairment that is not restrictive may
constitute pneumoconiosis. See Warth v. S. Ohio Coal Co., 60 F.3d
173, 174-75 (4th Cir. 1995).
*
Obstructive lung diseases impair the ability of the lungs to
expel air, while restrictive lung diseases reduce the ability to
bring air into the lungs. See Gulf & W. Indus. v. Ling, 176 F.3d
226, 229 n.6 (4th Cir. 1999).
34
The ALJ’s conclusion that Castle’s opinion is inconsistent
with Warth is itself in conflict with Stiltner v. Island Creek Coal
Co., 86 F.3d 337 (4th Cir. 1996), a case not discussed by the
majority. There, the black lung benefits claimant argued that the
coal company’s medical experts ran afoul of Warth by opining that
if the miner’s impairment were coal dust related, the miner
“likely” would have had a restrictive impairment. Stiltner, 86
F.3d at 341 (emphasis omitted). Based on the experts’ use of
“likely” and on the fact that they ruled out coal dust as a cause
of the miner’s impairment based on the miner’s entire medical
history, we held that their opinions were not at odds with Warth.
See id.Here, as in Stiltner, the statement at issue was qualified.
In the quotation cited by the ALJ, Castle stated merely that
“[w]hen coal workers’ pneumoconiosis causes clinically significant
impairment, it does so generally by causing a mixed, irreversible
obstructive and restrictive ventilatory impairment.” J.A. 63
(emphasis added). Also as in Stiltner, Castle relied on the type
of Jones’ impairment only as one of many factors that, considered
together, demonstrated that Jones’ impairment was not coal-dust
related. Thus, under Stiltner, the ALJ’s criticism is misplaced.
The ALJ next discredited Castle and Fino when the ALJ
concluded that they directly inferred from the absence of
significant fibrosis in Jones’ lungs that his impairment was not
35
coal-dust related. The ALJ reasoned that the doctors’ analyses
overlooked that it is possible for a miner to have legal
pneumoconiosis (such as coal-dust induced chronic bronchitis)
without having fibrosis. Again, however, it is only the ALJ’s
misreading of the doctors’ statements that produces any
inconsistency. As I discussed above, the absence of fibrosis was
only one part of the doctors’ basis for concluding that Jones’
impairment was not coal-dust related. While it is true that the
absence of fibrosis does not by itself show that Jones’ disability
was not related to coal dust, it was properly considered by both
doctors as an important piece of their analyses.
In approving of the ALJ’s analysis, the majority appears to
fall prey to the same error committed by the ALJ. The majority
correctly acknowledges that to rebut the presumption of disability,
Dante had to address both medical and legal pneumoconiosis. See
ante, at 18. Yet, when Castle and Fino cite factors, such as the
absence of fibrosis, that indicate that Jones did not suffer from
medical pneumoconiosis, the majority accuses the doctors of
“preoccupation with medical rather than legal pneumoconiosis.” Id.From such a criticism, one might assume that Castle’s and Fino’s
analyses presumed that if Jones did not have medical
pneumoconiosis, he did not have legal pneumoconiosis either. But
that was clearly not the case. Both doctors undeniably
demonstrated an understanding of the distinction between medical
36
and legal pneumoconiosis, see, e.g., J.A. 200-01 (Castle); id. at
181, 220-21 (Fino), and both offered several reasons why they
believed Jones did not suffer from non-medical pneumoconiosis.
Most importantly, the doctors primarily ruled out chronic
bronchitis--the condition Dr. Abrahams concluded that Jones
suffered from--because chronic bronchitis abates quickly once a
miner is no longer being exposed to coal dust. Contrary to the
majority’s conclusion that “the ALJ carefully considered and
analyzed each of the reasons Drs. Castle and Fino cited for
concluding that Jones does not have pneumoconiosis,” ante, at 19-
20, the ALJ never addressed this critical point.
The ALJ also discredited Castle and Fino because they
concluded that Jones’ 1998 pulmonary function study showing a
marked degree of reversibility in the degree of obstruction
reinforced their opinions that coal dust was not a cause of Jones’
impairment. The ALJ observed that two 1999 studies showed only
minimal reversibility and noted that Castle and Fino did not
explain why, in light of the minimal additional improvement, that
coal dust exposure could not be a cause of Jones’ impairment.
The ALJ’s conclusion that the doctors did not explain the
apparent reduction in reversibility is simply incorrect. In his
November 1999 deposition, Castle explained the fact that the 1999
tests did not produce the same degree of reversibility as the 1998
test by noting that Jones “was much more maximally dilated” in 1999
37
and observing that once a maximum amount of bronchodilatation
occurs, further bronchodilatation should not be expected.
J.A. 206. Having overlooked this explanation, the ALJ never
undertook to evaluate it.
The ALJ also discredited the doctors for failing to “explain
how much reversibility was necessary to rule out coal mine
employment as a causal factor.” Id. at 311. Yet, Dr. Castle did
just that in his November 1999 deposition:
[T]he FVC and FEV-1 are the two parameters that we
utilize to judge reversibility, and in this case, the
prebronchodilator forced vital capacity was 70 percent of
predicted or 2.58 liters. [Jones] improved by 23 percent
after the inhalation of a bronchodilator to 3.17 liters
or 86 percent of predicted.
That is a very significant degree of reversibility,
and in many circumstances, it would be utilized as a
diagnosis of asthma or bronchial asthma. This--over a 12
percent degree of reversibility is considered significant
if it’s also more than 200 c.c.’s, and in fact that is
the case, and the FEV-1 improves from 1.35 liters to 1.67
liters, or 24 percent of predicted, so that shows that
there is, on some occasions, at any rate, some degree of
reversibility.
Id. at 198-99 (emphasis added).
Without acknowledging this disconnect between the record and
the ALJ’s criticisms of Castle and Fino, the majority concludes
that the ALJ rejected Castle’s and Fino’s positions regarding
reversibility because he “accord[ed] more weight to the more recent
pulmonary function studies, which did not show a significant degree
of bronchoreversibility.” Ante, at 21. However, nothing in the
ALJ’s decision indicates that he undertook such a weighing. See
38
J.A. 311 (ALJ’s order concluding that the flaw in Castle’s and
Fino’s opinions relating to reversibility was that they “failed to
explain why coal mine dust exposure did not contribute to [Jones’]
obstructive airways disease when the amount of reversibility in the
1999 studies was minimal, and they did not explain how much
reversibility was necessary to rule out coal mine employment as a
causal factor”). In fact, there was nothing to weigh because the
test results were not contradictory. Castle and Fino both
explained that the reversibility demonstrated in 1998 reinforced
their opinions that Jones was not impaired by pneumoconiosis, and
Castle explained that the change between 1998 and 1999 provided
“further” proof that Jones’ impairment was “very significantly
reversible” and thus not chronic bronchitis. Id. at 206.
The ALJ further concluded that Castle’s and Fino’s opinions
were “entitled to less weight because their opinions are not based
on all the evidence in the record (which they allegedly reviewed).”
Id. at 312. In this regard, the ALJ referenced the fact that six
medical reports in the record reported a history of a mucus-
producing cough. Castle observed that when he examined Jones,
Jones complained only of a dry cough, and Fino noted that Jones’
history of mucus production was variable. Both doctors cited the
lack of a consistently productive cough as supporting their
conclusions that Jones did not suffer from chronic bronchitis.
39
The doctors’ conclusions that Jones’ mucus production was
variable are not a substantial basis for concluding that their
opinions were not based on all of the evidence in the record. A
1995 medical report indicated that Jones did not complain of a
cough, and Castle reported that during his examination of Jones,
Jones complained only of a dry cough. In light of this evidence
indicating that Jones’ mucus production was inconsistent, any
conclusion that the doctors’ description of Jones’ mucus production
as variable was due to a failure to consider the complete record
could be based only on pure speculation.
The majority makes much of the fact that Castle’s written
report states only that Jones’ cough “generally” was not productive
of mucus. Id. at 53; see ante, at 24. This distinction makes no
difference, however. The critical point was not that the cough was
never productive of mucus but only that it was not consistently
productive of mucus, as it would be if Jones suffered from chronic
bronchitis. See J.A. 101 (Castle deposition); id. at 215 (Fino
deposition).
Moreover, even assuming arguendo that Castle and Fino should
have ignored the evidence to the contrary and assumed that Jones
had a consistently mucus-producing cough, it still would not have
affected their conclusions that Jones’ impairment was not due to
coal-dust related chronic bronchitis. Both doctors completely
ruled out chronic bronchitis caused by coal mining based on their
40
belief that such a condition subsides within six months of the
termination of exposure to coal dust. Indeed, Dr. Castle added
that a more likely cause of any mucus-producing cough would be
Jones’ gastroesophageal reflux disease.
The ALJ further discredited Fino’s opinion because Fino stated
there was greater reduction in airflow in Jones’ small airways than
in his large airways, which is associated with a smoking-related
condition or asthma, rather than a coal-dust induced condition.
The ALJ noted that the airflow in both sizes of airways varied over
time and that Fino did not explain how coal dust could be ruled out
as a cause or aggravator of Jones’ impairment in light of that
fact.
Even if Fino’s inference from the airflow reduction comparison
could be discounted because he did not provide a more detailed
explanation, that would not be sufficient to discredit Fino’s
entire opinion that Jones’ impairment was not coal-dust related.
Fino’s reasons for his conclusion that Jones’ impairment was not
coal-dust related were many. And, again, his primary basis for
rejecting the conclusion that Jones suffered from chronic
bronchitis--namely, that such a condition abates within six months
after the cessation of the coal dust exposure--was never even
addressed by the ALJ.
41
II.
In sum, the analyses offered by Drs. Castle and Fino are both
internally consistent and consistent with Fourth Circuit law. For
the reasons discussed, there is no substantial evidence supporting
the ALJ’s decision to discredit these doctors’ opinions as poorly
reasoned. Indeed, many of the reasons offered by the ALJ for
discrediting the doctors are simply factually incorrect. I would
therefore grant Dante’s petition and remand to the Board to in turn
remand to an ALJ for further proceedings. Because the majority
reaches a contrary result, I respectfully dissent.
42