Clonch v. Southern OH Coal

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0862n.06
Filed: November 27, 2006
No. 05-3133
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KATHLEEN GLADYS CLONCH, )
widow of ROBERT CLONCH, )
) ON PETITION FOR REVIEW OF A
PETITIONER, ) DECISION OF THE BENEFITS
) REVIEW BOARD OF THE U.S.
v. ) DEPARTMENT OF LABOR
)
SOUTHERN OHIO COAL CO., ) OPINION
DIRECTOR, OFFICE OF WORKERS’ )
COMPENSATION PROGRAMS, U.S. )
DEPARTMENT OF LABOR, AND )
BENEFITS REVIEW BOARD, )
)
RESPONDENTS. )
____________________________________ )
Before: KENNEDY and GIBBONS, Circuit Judges; and DONALD, District Judge.*
BERNICE BOUIE DONALD, District Judge. Kathleen Clonch (“Mrs. Clonch”),
widow of deceased claimant Robert Clonch (“Mr. Clonch”), appeals the decision of the Benefits
Review Board of the U.S. Department of Labor (“the BRB”) affirming the denial of Mr.
Clonch’s request for living miner’s black lung benefits. Mrs. Clonch also appeals the decision of
the BRB affirming the denial of her request for survivor’s black lung benefits. For the reasons
stated herein, we REVERSE the BRB’s decision regarding Mr. Clonch’s living miner’s black
*
The Honorable Bernice Bouie Donald, United States District Judge for the W estern District of Tennessee,
sitting by designation.
lung benefits status and REMAND to the administrative law judge for reconsideration, and
AFFIRM the BRB’s decision regarding Mrs. Clonch’s survivor’s black lung benefits.
I. BACKGROUND
Mr. Clonch was born on October 31, 1925. He was employed as a coal miner for thirty-
two years. He worked at Southern Ohio Coal Co. (“Southern Ohio Coal”) for approximately
fourteen years, from April 1975 until sometime in 1989. Mr. and Mrs. Clonch were married on
August 2, 1948. Mr. Clonch is now deceased.
During Mr. Clonch’s lifetime, he filed three living miner applications for federal black
lung benefits. Mr. Clonch’s first claim was filed on August 7, 1981. His second claim was filed
on July 12, 1989. Both of these claims were denied. The current case involves Mr. Clonch’s
third and final claim, which was initially filed on January 25, 1994. An order denying Mr.
Clonch’s third claim was entered by Administrative Law Judge Donald W. Mosser (“ALJ
Mosser”) on October 22, 1999. In this order, ALJ Mosser found that although Mr. Clonch had
established the existence of pneumoconiosis, he had failed to establish that he was “totally
disabled” as required for an award of benefits. Mr. Clonch initially appealed the decision of ALJ
Mosser to the BRB but voluntarily withdrew his appeal on May 22, 2000.
On November 10, 2000, Mr. Clonch submitted new medical evidence to the District
Director of the U.S. Department of Labor (“District Director”). The submission was considered
a request for modification of ALJ Mosser’s findings. The District Director issued a Proposed
Decision and Order Denying Benefits on November 13, 2002 and transferred the claim to the
Office of Administrative Law Judges for hearing. While the living miner request for
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modification was pending before the District Director, Mr. Clonch died. Mr. Clonch’s death
certificate lists the causes of death as cardiac arrest and atherosclerotic cardiac disease. On
August 27, 2001, Mrs. Clonch filed a survivor’s claim for benefits.
On July 16, 2003, Administrative Law Judge Joseph E. Kane (“ALJ Kane”) held a
hearing on both Mr. Clonch’s living miner benefits claim and Mrs. Clonch’s survivor’s benefits
claim. ALJ Kane issued an order denying both claims. In the order, ALJ Kane rejected
additional medical evidence presented by both sides in the dispute, including that of Dr. Glen
Baker and Dr. Robert H. Holly, two of Clonch’s examining physicians. The ALJ’s rulings were
appealed to the BRB. The BRB affirmed both of ALJ Kane’s rulings in an order issued on
December 21, 2004. Mrs. Clonch has appealed the decisions of the BRB to this Court. She
raises two issues on appeal: 1) whether ALJ Kane’s decision to reject the medical opinions of Dr.
Baker and Dr. Holly was supported by substantial evidence; and 2) whether the decision of ALJ
Kane to reject Mrs. Clonch’s survivor’s benefits claim was supported by substantial evidence.
II. STANDARD OF REVIEW
The Benefits Review Board may set aside an administrative law judge’s findings of fact
and conclusions of law only if they are unsupported by substantial evidence or not otherwise in
accordance with the law. Welch v. Benefits Review Bd., 808 F.2d 443, 445 (6th Cir. 1986); see
also 33 U.S.C. § 921(b)(3) (providing that the ALJ’s findings of fact shall be “conclusive if
supported by substantial evidence in the record considered as a whole”). Upon an appeal of the
BRB’s judgment, this Court’s scope of review is limited to scrutinizing the judgment of the BRB
for “errors of law and for adherence to the statutory standard governing the Board’s review of the
administrative law judge’s factual determinations.” Welch, 808 F.2d at 445; see also Director,
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OWCP v. Quarto Min. Co., 901 F.2d 532, 536 (6th 1990).
Where, as in the present case, the BRB has affirmed the decision of the ALJ on grounds
that it was supported by substantial evidence, this Court’s role is to determine whether the ALJ’s
findings and conclusions are, in fact, supported by substantial evidence. If they are, the BRB’s
decision must be upheld. Zimmerman v. Director, OWCP, 871 F.2d 564, 566 (6th Cir. 1989). As
this Court has stated, “What this means, in effect, is that the standards of review for the Benefits
Review Board and this Court are the same.” Welch, 808 F.2d at 445. For this reason, although it
is the BRB’s judgments that are before the Court on appeal, the analysis that follows discusses
the ALJ’s deliberations directly, rather than those of the BRB.
An ALJ’s findings are supported by substantial evidence if they are in accord with the
applicable law. Kolesar v. Youghiogheny & Ohio Coal Co., 760 F.2d 728, 729 (6th Cir. 1985).
Furthermore, “substantial evidence is more than a mere scintilla; substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Ramey v. Kentland Elkhorn Coal Corp., 755 F. 2d 485, 488 (6th Cir. 1985) (internal citations
and quotations omitted). To determine whether the substantial evidence standard is satisfied, the
Court considers whether the ALJ adequately explained his or her reasoning for crediting certain
testimony and evidence over other evidence in the record in deciding to award or deny benefits.
Director, OWCP v. Congleton, 743 F. 2d 428, 430 (6th Cir. 1984).
III. ANALYSIS
A. Living Miner’s Benefits Claim
Mrs. Clonch argues that ALJ Kane improperly rejected the medical opinions of Dr. Baker
and Dr. Holly. Clonch contends that ALJ Kane substituted his own opinion of objective medical
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evidence for that of Mr. Clonch’s examining physicians. Thus, Clonch asserts that ALJ Kane’s
finding that the physician’s reports do not establish the existence of total disability is not
supported by substantial evidence.
Coal workers’ pneumoconiosis (black lung disease) is an illness which causes severe and
chronic respiratory impairment in many coal miners. Congress provided benefits to victims of
the disease with the enactment of the Federal Coal Mine Health and Safety Act of 1969, 30
U.S.C. § 901. Implementing regulations for the statute are provided in 20 C.F.R. § 718.1 et seq.
Under the regulations, a claimant is entitled to benefits if he can show that (1) he has
pneumoconiosis, (2) his pneumoconiosis arose out of his coal mining employment, and (3) that
he is totally disabled as a result. 20 C.F.R. §§ 718.202, 718.203, 718.204; see also Adams v.
Director, OWCP, 886 F.2d 818, 820 (6th Cir. 1989). The claimant bears the burden of proving
each of these elements by a preponderance of the evidence, except where he is aided by a
presumption. Adams, 886 F.2d at 820.
In reviewing Clonch’s case, ALJ Kane found that Clonch had established the existence of
pneumoconiosis and that his condition arose out of his coal mining employment. Clonch v. S.
Ohio Coal Co., Decision and Order Den. Benefits at 4 (Dec. 22, 2003) [hereinafter Kane Order
Denying Benefits]. Therefore, ALJ Kane concluded, the only issue in the case was whether
Clonch was “totally disabled.”
A claimant is totally disabled “when pneumoconiosis prevents him or her from engaging
in gainful employment requiring the skills and abilities comparable to those of any employment
in a mine or mines in which he previously engaged with some regularity and over a substantial
period of time.” 30 U.S.C. § 902(f)(1)(A)(2000). A claimant may demonstrate total disability
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through any one of four methods: (1) a qualifying1 pulmonary function test; (2) a qualifying
arterial blood-gas test; (3) a diagnosis of cor pulmonale with right-sided congestive heart failure;
or (4) the opinion of a qualified physician. 20 C.F.R. § 718.204(b)(2). The fourth method –
through physician opinion – is described in the regulation as follows:
Where total disability cannot be shown under [the other three
methods through qualifying medical tests], total disability may
nevertheless be found if a physician exercising reasoned medical
judgment, based on medically acceptable clinical and laboratory
diagnostic techniques, concludes that a miner’s respiratory or
pulmonary condition prevents or prevented the miner from
[performing his or her usual coal mine work and engaging in
gainful employment with some regularity over a substantial period
of time].
20 C.F.R. § 718.204(b)(2)(iv).
In his request for modification, Mr. Clonch sought to establish that he was totally
disabled through the medical opinions of Glen Baker, M.D. and Robert M. Holly, M.D. In
opposition, Southern Ohio Coal submitted the consultative report of Eric R. Pacht, M.D., who
found that Clonch was not totally disabled. ALJ Kane ultimately discredited the opinions of all
three doctors.
ALJ Kane rejected the medical opinion of Dr. Pacht as equivocal and based upon
inadequate data. As to Dr. Baker’s findings, ALJ Kane stated,
Glen Baker, M.D., a B-reader and Board-certified Pulmonologist,
examined the Miner on December 13, 2000 at which time he
reviewed the Miner’s symptoms and his occupational (thirty-two
years in the coal mines, last worked in 1989), medical (difficulty
breathing, attacks of wheezing, dyspnea, orthopnea, chest pain,
paroxysmal nocturnal dyspnea) and performed a physical
1
Medical tests are considered “qualifying” when certain procedures enumerated in the regulations are
followed and when the results are within the guidelines set forth in 20 C.F.R. § 718, Appendix B.
6
examination (coarse wheezing), pulmonary function study
(moderate restrictive defect), arterial blood gas study (mild resting
arterial hypoxemia), and interpreted an x-ray (coal worker’s
pneumoconiosis, 1/0). Dr. Baker diagnosed: (1) coal workers’
pneumoconiosis, category 1/0, based on the abnormal chest x-ray
and significant duration of exposure to the coal mines; (2) mild
resting arterial hypoxemia, based on the arterial blood gas analysis;
and (3) moderate restrictive defect, based on the pulmonary
function test. In Dr. Baker’s opinion, Mr. Clonch did not retain the
respiratory capacity to perform coal mine or comparable work
where his pulmonary function study, FVC/FEV1, was less than
60%.
Kane Order Denying Benefits at 5. In spite of Dr. Baker’s expertise as a Board-certified
Pulmononologist, ALJ Kane rejected Dr. Baker’s findings as poorly reasoned. ALJ Kane stated,
[T]he reasoning of Dr. Baker’s opinion demonstrates several
analytical deficiencies. Primarily, the basis for the “moderate
severity of impairment” is unsupported by the evidence. The
pulmonary function study relied on is non-qualifying and thus, the
“moderate impairment” rating is unfounded. Additionally, the
arterial blood gas studies suggest only a mild hypoxemia and the
chest x-ray showing simple pneumoconiosis (1/0). Neither of
which is indicative of a totally disabling impairment.
Id. at 8.
Finally, ALJ Kane rejected Dr. Holly’s opinion stating:
The doctor’s finding of “total disability” appears to rely almost
completely on a physical examination with the attendant
observations. The only objective data relied on, the chest x-rays,
evidenced “mild pneumoconiosis” and pleural thickening. The
opinion lacks indications of pulmonary function studies or arterial
blood gas test. In addition, the doctor does not differentiate
between Mr. Clonch’s significant cardiac ailments from any
pulmonary impairments in reaching the total and permanent
disability conclusion.
Id. at 9.
The Court finds ALJ Kane’s rejection of Dr. Holly’s testimony to be well-founded. A
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claimant must demonstrate a causal connection between the pneumoconiosis and the total
disability, and by failing to differentiate between the cardiac and pulmonary ailments, Dr. Holly
failed to meet this burden.
However, the Court finds ALJ Kane’s rejection of Dr. Baker’s opinion problematic, in
light of the governing regulation and the Sixth Circuit’s holding that the Federal Coal Mine
Health and Safety Act is remedial in nature and “‘must be liberally construed to include the
largest number of miners as benefit recipients.’” Tussy v. Island Creek Coal Co., 982 F.2d 1036,
1042 (6th Cir. 1993) (quoting Southard v. Director, OWCP, 732 F.2d 66, 71 (6th Cir. 1984).
The qualified physician opinion provision, 20 CFR § 204(b)(2)(iv), is only applicable
where, inter alia, total disability cannot be shown through a qualifying pulmonary function test.
Paragraph (b)(2)(iv) allows a physician’s opinion to override the strict numerical criteria set forth
in paragraphs (b)(2)(i) - (iii), so long as that opinion is based upon “reasoned medical judgment”
which, in turn, is “based on medically acceptable clinical and laboratory diagnostic techniques.”
Yet, in reviewing Dr. Baker’s opinion, the ALJ arrived at this conclusion: “The basis for
the ‘moderate severity of impairment’ is unsupported by the evidence. The pulmonary function
study relied on is non-qualifying and thus, the ‘moderate impairment’ rating is unfounded.” Kane
Order Denying Benefits at 8 (emphasis added). The ALJ’s rejection of Dr. Baker’s opinion on
grounds that it is based on a non-qualifying pulmonary function study is directly at odds with
paragraph (b)(2)(iv)’s terms and its clear purpose, i.e., to provide a more flexible approach than
is otherwise allowed under paragraphs (b)(2)(i) - (iii). The ALJ effectively imposed the
requirements of paragraph (b)(2)(i) on paragraph (b)(2)(iv), which was intended as a fourth
means for establishing total disability, independent of the other three.
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As the finder-of-fact, it is the role of the ALJ to weigh the evidence and determine
whether the opinions of medical experts are well-reasoned. The ALJ may find a physician’s
opinion unreasonable, for instance, when the opinion does not indicate what factors were relied
on, when it does not discuss the claimant’s physical condition, when the doctor fails to explain
the conclusion reached, or where there are inconsistencies in the doctor’s testimony. See
Brazzalle v. Director, OWCP, 803 F.2d 934, 936 (8th Cir. 1986); Phillips v. Director, OWCP,
768 F.2d 982, 984 (8th Cir. 1985); Parsons v. Director, OWCP, 6 BLR 1-272, 1-276
(B.R.B.1983); Duke v. Director, OWCP, 6 BLR 1-673 (B.R.B.1983). In addition, if the
physician’s testimony is not based on “medically acceptable clinical and laboratory diagnostic
techniques,” the ALJ would have valid grounds for rejecting such testimony. 20 C.F.R. §
718.204(b)(2)(iv). However, the ALJ does not have discretion to reject a medical expert’s
opinion simply because he disagrees with the physician’s interpretation of the claimant’s medical
evidence. Kertesz v. Crescent Hills Coal Co., 788 F.2d 158 (3rd Cir. 1986); Marcum v.
Director, OWCP, 11 BLR 1-23 (B.R.B.1987); Hucker v. Consolidation Coal Co., 9 BLR 1-137
(B.R.B.1986); Fuller v. Gibraltar Coal Corp., 6 BLR 1-1291 (B.R.B.1984).
While ALJ Kane asserts that his rejection of Dr. Baker’s opinion was based on defective
reasoning, or “analytical deficiencies,” the defects noted by ALJ Kane do not fall within any of
the accepted bases – improper procedure, documentation, or credentials, etc. – for finding a
physician’s opinion unreasonable. His findings as to Dr. Baker’s opinion instead focus on the
inadequacy of each of Dr. Baker’s findings standing alone – pulmonary function test, arterial gas
study, chest x-ray – to establish total disability. As such, ALJ Kane’s findings are contrary to the
regulation governing claims of total disability based upon a physician’s opinion, 20 C.F.R.
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718.204(b)(2)(iv), and cannot be sustained by this Court. See Cornett v. Benham Coal, Inc., 227
F.3d 569, 577 (6th Cir. 2000) (finding doctor was entitled to base a reasonable opinion on non-
qualifying results); Jonida Trucking, Inc. v. Hunt, 124 F.3d 739, 744 (6th Cir. 1997) (“pulmonary
tests exhibiting levels of impairment below that required to establish total disability under section
718.240(c)(1) . . . can form a basis, along with other evidence, for a reasoned medical decision
establishing total disability under section 718.240(c)(4))”).
The Court’s view of the present case and the applicable precedent differs from that of the
dissent in a number of respects. First, it is not apparent to the Court that Dr. Baker based his
conclusion “solely on the results of non-qualifying pulmonary function tests.” According to the
record, Dr. Baker reviewed Mr. Conch’s symptoms and his occupational and medical history.
Kane Order Denying Benefits at 5. He performed a physical examination, a pulmonary function
study and an arterial blood gas study. Id. He also examined and interpreted an x-ray. Id. He noted
that Mr. Conch suffered from difficulty breathing, attacks of wheezing, dyspnea, orthopnea, chest
pain, paroxysmal nocturnal dyspnea, coarse wheezing, moderate restrictive defect, mild resting
arterial hypoxemia, and coal worker’s pneumoconiosis, 1/0. Id. From these findings, Dr. Baker
concluded that “Mr. Clonch did not retain the respiratory capacity to perform coal mine or
comparable work where his pulmonary function study, FVC/FEV1, was less than 60%.” Id.In the dissent’s view, this case is distinguishable from Cornett because, inter alia, in
Cornett the doctors based their opinions on clinical data regarding the miner’s respiratory
condition in addition to a non-qualifying pulmonary function test. Five doctors agreed that the
miner suffered from mild to moderate respiratory impairment. Id. Nonetheless, two of the doctors
(including Dr. Glen Baker) determined the miner to be totally disabled. Id. Their conclusions
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were based on x-rays, an examination of the miner, his history in the mines, his history as a
smoker, and pulmonary functions studies. Id.A side-by-side comparison of the factors considered by the doctors in Cornett and the
present case reveal a remarkable similarity. It may well be that the doctors in Cornett did a better
job of explaining their conclusions than did Dr. Baker in his evaluation of Mr. Clonch, but the
variety of factors which informed the respective conclusions appears quite comparable.
Finally, and perhaps most importantly, the dissent disregards Cornett’s unqualified and
unequivocal statement that “[u]nder the regulations, [a doctor is] entitled to base a reasonable
opinion on non-qualifying test results, . . . and the ALJ erred by rejecting [the doctor’s] opinion
for this reason.” Cornett, 227 F.3d at 577. The ALJ in the present case committed an identical
error. To affirm the ALJ’s decision would be to ratify this error in direct contradiction of the
principle articulated by this Court in Cornett. Because ALJ Kane erred in the standards by which
he evaluated Dr. Baker’s opinion, we hereby REVERSE and REMAND for further
consideration of the evidence in accord with this opinion.
B. Survivor’s Benefits Claim
Mrs. Clonch also asserts that ALJ Kane improperly rejected her survivor’s benefit claim.
To receive survivor’s benefits, a claimant must show that (1) the miner had pneumoconiosis, (2)
the miner’s pneumoconiosis arose out of coal mine employment, and (3) the miner’s death was
due to pneumoconiosis. 20 C.F.R. § 718.205(a). ALJ Kane relied on Mr. Clonch’s death
certificate, stating that he died of cardiac arrest, to reject Mrs. Clonch’s survivor’s benefit claim.
The Petitioners have presented no evidence to show that pneumoconiosis contributed to Clonch’s
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death. Therefore, ALJ Kane’s decision to deny survivor’s benefits is supported by the only
evidence on Clonch’s cause of death. Accordingly, the decision of the BRB affirming ALJ
Kane’s decision regarding survivor’s benefits is hereby AFFIRMED.
IV. CONCLUSION
For the reasons set forth herein, we REVERSE and REMAND the case for
reconsideration of Mr. Clonch’s living miner’s benefits and AFFIRM the decision of the BRB
affirming the denial of Mrs. Clonch’s survivor’s benefits.
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Kennedy, Circuit Judge, concurring in part and dissenting in part.
I concur in the majority’s holding that the Administrative Law Judge (“ALJ”) did not err in
rejecting the opinion of Dr. Holly or in denying the claim of the widow, Kathleen Clonch. I
respectfully dissent, however, from the portion of its opinion that reverses the denial of Mr. Clonch’s
living miner’s claim based on the opinion of Dr. Baker.
The ALJ rejected the opinion of Dr. Baker because his medical opinion failed to explain how
Clonch’s respiratory condition prevented the miner from performing his usual coal mining work and
engaging in gainful employment with some regularity.
Our precedent allows miners to qualify for benefits if they are totally disabled due to multiple
ailments; but, one of the reasons they are found to be totally disabled must be related to a respiratory
condition. Our precedent does not eliminate the need for the miner to prove that he was totally
disabled due to that respiratory or pulmonary ailment. Our precedent allows miners to qualify for
benefits if they are totally disabled due to multiple ailments but still requires that one of the causes
of total disability must be due to a respiratory condition. Thus, our precedent does not eliminate the
need for the miner to prove that he was totally disabled due to a respiratory or pulmonary ailment.
Under our precedent, Dr. Baker’s failure to attribute the miner’s total disability to his respiratory
condition, the petitioner’s sole basis for reopening the prior denial of benefits, is insufficient and the
ALJ’s denial of the motion to reopen is based on substantial evidence.
With respect to Dr. Baker’s opinion, the ALJ found Dr. Baker’s report insufficient to reopen
the miner’s claim because the doctor’s opinion that the miner’s total disability was due to respiratory
impairments was not based on objective data. The ALJ indicated that Dr. Baker failed to explain
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the basis of his conclusion that the miner was totally disabled due to pneumoconiosis when the only
evidence referred to consisted of a non-qualifying pulmonary function test, the miner’s chronic
bronchitis, and mild pneumoconiosis. The ALJ found that this evidence did not support Dr. Baker’s
opinion that the claimant would be totally disabled due to his respiratory ailment. The Board
affirmed this finding as being supported by substantial evidence.
I agree with the ALJ and the Board. The regulations require not only that the claimant has
pneumoconiosis but that he be totally disabled. 20 C.F.R. §§ 718.202-204. Although Dr. Baker
concludes that the claimant suffers from a moderate impairment, he does not answer the last question
on the form he filed, other than with the notation “VC/FEV1 <60%.” J.A. at 157. As the ALJ and
the Board found, this pulmonary function test result is non-qualifying. Thus, it must be said that the
only evidence he offers to support his medical opinion is a non-qualifying pulmonary function test.2
The majority’s opinion argues that a medical opinion can be based on non-qualifying
pulmonary function tests, relying on this court’s decision in Cornett v. Benham Coal, Inc., 227 F.3d
569 (6th Cir. 2000). In that decision, the court held that rejecting a doctor’s opinion that relied, in
part, on a non-qualifying pulmonary function test was “clearly an inappropriate reason to reject a
physician’s opinion because” the regulations provided that doctors could “make [] reasoned medical
judgment[s] that a miner is totally disabled even ‘where pulmonary function tests and/or blood-gas
studies are medically contraindicated.’” Id. at 577 (quoting 20 C.F.R. § 718.204(c)(4)). In Cornett,
the ALJ rejected two doctors’ opinions because, in the ALJ’s view, the doctors’ diagnoses were
based on “their interpretations of an x-ray and a history of coal dust exposure.” Id. at 575-76
2
Dr. Baker’s examination and conclusion appear only in a form report in cursory answers
to questions.
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(quoting the joint appendix).
This court, in reviewing the record, disagreed with the ALJ’s characterizations of the doctors
reports and found that the doctors based their opinions on a variety of factors. Id. at 576. It noted
the doctor’s explanation that “[i]n addition to x-rays, they each considered their examination of
Cornett, his history in the mines, his history as a smoker[,] and pulmonary function studies.” See
also Jericol Mining, Inc. v. Napier, 301 F.3d 703, 711-14 (6th Cir. 2002) (holding that the ALJ’s
conclusion as to disability was supported by substantial evidence because the doctors’ opinions on
which the ALJ relied considered a variety of factors including other evidence contrary to their
conclusions).
In this case, in contrast, although Dr. Baker performed a medical examination of the claimant,
my reading of the record is that he supports his conclusion of a moderate impairment and his finding
that the claimant was totally disabled solely on the results of non-qualifying pulmonary function
tests. See J.A. at 157. He does not discuss his medical examination of the claimant as providing
support for his conclusion, and he reached his conclusion, as the ALJ points out, despite an arterial
blood gas study that suggested only a mild hypoxemia and a chest x-ray showing simple
pneumoconiosis. Thus, this case is different from Cornett in that the doctors there based their
opinions on clinical data regarding the miner’s respiratory condition in addition to a non-qualifying
pulmonary function test and explained why the totality of the criteria on which they relied
established total disability from the respiratory condition. Dr. Baker relied only on the non-
qualifying pulmonary function test. The ALJ’s conclusion that Dr. Baker’s opinion is insufficient
is further bolstered, in my view, by the other data to which he cites. Thus, I do not believe that we
can say that the ALJ erred in rejecting Dr. Baker’s opinion.
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I believe that the ALJ and the Board acted correctly in rejecting the opinions of both doctors,
and I would hold that those findings are supported by substantial evidence. Thus, I would affirm
the Board’s decision.
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