Island Creek Coal Co. v. Compton

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

ISLAND CREEK COAL COMPANY, 
Petitioner,
v.
DENNIS E. COMPTON; DIRECTOR,  No. 03-2255
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(02-775-BLA)

Submitted: April 23, 2004

Decided: May 12, 2004

Before WILKINS, Chief Judge, and LUTTIG and
SHEDD, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

COUNSEL

Douglas Allan Smoot, Mary Rich Maloy, JACKSON KELLY, PLLC,
Charleston, West Virginia; Dorothea Jenkins Clark, JACKSON
KELLY, PLLC, Morgantown, West Virginia, for Petitioner. Dennis
E. Compton, Respondent Pro Se; Michelle Seyman Gerdano, Chris-
tian P. Barber, Washington, D.C., for Federal Respondent.
2 ISLAND CREEK COAL v. COMPTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Island Creek Coal Company seeks review of the Benefits Review
Board’s (BRB) decision and order affirming the Administrative Law
Judge’s (ALJ) award of black lung benefits to Dennis E. Compton
pursuant to 30 U.S.C. §§ 901-945 (2000). This case is before the
Court for a second time. Island Creek Coal Co. v. Compton, 211 F.3d
203 (4th Cir. 2000). In our earlier decision, we concluded that the
ALJ erred in considering the evidence related to the existence of
pneumoconiosis in discrete parts according to the categories of evi-
dence described in 20 C.F.R. § 718.202(a)(1)-(4) (2003), without also
considering all the evidence together to determine whether Compton
suffered from the disease. Id. at 210-11. We also held that the ALJ
erred in crediting the medical opinion of Dr. Gaziano and in discredit-
ing the opinion of Dr. Fino, but correctly weighed the other medical
opinions of record. Id. at 211-14.

On remand, the ALJ followed the Court’s instruction to consider
the x-ray and medical opinion evidence regarding the existence of
pneumoconiosis together, and again concluded that the evidence was
sufficient to establish that Compton suffers from the disease. The ALJ
considered the opinions of Doctors Carrillo and Fino regarding the
existence of the disease and whether pneumoconiosis was a substan-
tial cause of Compton’s total disability and found Dr. Carrillo’s opin-
ion worthy of greater weight. The ALJ accordingly awarded benefits.
On the employer’s appeal, the BRB concluded that the ALJ again
erred in discrediting Dr. Fino’s opinion, vacated the ALJ’s decision
awarding benefits, and remanded for further consideration.

After the BRB’s remand, the ALJ reconsidered the medical opin-
ions of Doctors Fino and Carrillo, and again concluded that the opin-
ion of Dr. Carrillo, supported by the opinion of Dr. Cabauatan, was
more persuasive as to the existence of pneumoconiosis and that pneu-
 ISLAND CREEK COAL v. COMPTON 3
moconiosis was a substantially contributing cause of Compton’s total
respiratory disability. The BRB affirmed the award of benefits with
one judge dissenting, and the employer filed a timely petition for
review.

We review decisions of the BRB to determine whether the BRB
properly found that the ALJ’s decision was supported by substantial
evidence and was in accordance with law. See Doss v. Dir., Office of
Workers’ Comp. Programs, 53 F.3d 654, 658 (4th Cir. 1995). In mak-
ing this determination, we undertake an independent review of the
record in deciding whether the ALJ’s findings are supported by sub-
stantial evidence. See Consolidation Coal Co. v. Held, 314 F.3d 184,
186 (4th Cir. 2003). Substantial evidence is more than a scintilla, but
only such evidence that a reasonable mind could accept as adequate
to support a conclusion. See Lane v. Union Carbide Corp., 105 F.3d
166, 170 (4th Cir. 1997). Subject to the substantial evidence require-
ment, the ALJ has the sole authority to make credibility determina-
tions and resolve inconsistencies or conflicts in the evidence. See
Grizzle v. Pickands Mather & Co., 994 F.2d 1093, 1096 (4th Cir.
1993). An ALJ, however, may rely only on a medical opinion that
constitutes a reasoned medical judgment. See Freeman United Coal
Mining Co. v. Cooper, 965 F.2d 443, 448 (7th Cir. 1992).

To establish that he is entitled to black lung benefits in a case under
Part 718, a miner must prove: "(1) he has pneumoconiosis; (2) the
pneumoconiosis arose out of coal mine employment; (3) he has a
totally disabling respiratory or pulmonary condition; and (4) pneumo-
coniosis is a contributing cause to his total respiratory disability." Mil-
burn Colliery Co. v. Hicks, 138 F.3d 524, 529 (4th Cir. 1998).

A claimant may establish the existence of pneumoconiosis by
means of (1) chest x-rays; (2) biopsy or autopsy evidence;
(3) invocation of the presumptions at 20 C.F.R. §§ 718.304 - 718.306;
or (4) medical opinion evidence. See 20 C.F.R. § 718.202(a) (2003).
In this case, there is no biopsy or autopsy evidence and the presump-
tions at §§ 718.304-.306 do not apply because Compton has not been
diagnosed with complicated pneumoconiosis, the claim in question
was filed after January 1, 1982, and this is a living miner claim. The
ALJ concluded that the x-ray evidence was insufficient to establish
4 ISLAND CREEK COAL v. COMPTON
the existence of pneumoconiosis, and considered the opinions of Doc-
tors Carrillo and Fino.

The ALJ concluded that Dr. Fino did not adequately consider
whether Compton suffered from legal pneumoconiosis, a respiratory
disease or condition that was aggravated by his exposure to coal dust,
and accordingly gave Dr. Fino’s opinion lesser weight. Because Dr.
Carrillo’s opinion was supported by the opinion of Dr. Cabauatan
after his 1979 examination of Compton, and this Court’s holding that
"Dr. Carrillo’s opinion was reasoned and sufficiently documented,"
Compton, 211 F.3d at 212, the ALJ gave Dr. Carrillo’s opinion
greater weight and concluded that the existence of pneumoconiosis
was established by medical opinion evidence. On appeal, Island
Creek argues that the ALJ improperly credited the opinion of Dr. Car-
rillo and discredited that of Dr. Fino. We conclude that Island Creek’s
argument has merit.

The ALJ’s primary criticism of Dr. Fino’s opinion related to Dr.
Fino’s comment that the objective evidence indicated that Compton
suffered from an obstructive impairment that was consistent with
smoking induced emphysema but inconsistent with the contraction of
lung tissue caused by fibrosis associated with simple pneumoconiosis.
The ALJ interpreted this remark as indicating that Dr. Fino did not
consider whether Compton suffered from legal pneumoconiosis, but
rather only whether Compton had the clinical or medical form of the
disease. The ALJ stated that Dr. Fino failed to adequately address
whether Compton suffered from a respiratory condition that was sub-
stantially related to or aggravated by exposure to coal dust. Our
review of the record convinces us that this conclusion is without fac-
tual support.* Dr. Fino’s lengthy report includes a very detailed
explanation of why he concluded that Compton did not suffer from
any occupationally acquired respiratory disease. The objective find-
ings and x-rays that pointed to an absence of fibrosis in Compton’s
lungs were only one part of Dr. Fino’s analysis and reasoning that

*The ALJ’s reliance on Barber v. Dir., Office of Workers’ Comp. Pro-
grams, 43 F.3d 899 (4th Cir. 1995), is misplaced. The claimant in that
case benefitted from the presumption in § 718.305 that pneumoconiosis
caused her husband’s respiratory impairment, which does not apply to
Compton’s claim.
 ISLAND CREEK COAL v. COMPTON 5
supported his conclusion. Dr. Fino’s opinion in fact does address the
concept of legal pneumoconiosis, as he concluded that Compton’s
exposure to coal dust did not cause or aggravate any impairment of
his lung function. Further, the ALJ’s requirement that Dr. Fino "rule
out" pneumoconiosis essentially shifted the burden of proof to the
employer, contrary to the Supreme Court’s interpretation of the black
lung benefits act. Dir., Office of Workers’ Comp. Programs v. Green-
wich Collieries, 512 U.S. 267, 281 (1994).
We also note that the objective evidence appears supportive of Dr.
Fino’s opinion. A pulmonary function test conducted on June 8, 1995,
in conjunction with Dr. Carrillo’s examination of Compton demon-
strated rather severe impairment. Another test conducted ten months
later, on April 3, 1996, by Dr. Zaldivar, however, demonstrated sig-
nificantly greater pulmonary function, which weighs against a diagno-
sis of the irreversible and progressive disease of pneumoconiosis.
Moreover, the ALJ failed to follow this Court’s encouragement "to
consider more explicitly the impact of the doctors’ respective creden-
tials." Compton, 211 F.3d at 213 n.13. Dr. Carrillo’s qualifications are
not contained in the record. Dr. Fino is board certified in internal
medicine and the subspecialty of pulmonary disease, and is a certified
"B" reader. We conclude that the ALJ’s discrediting of Dr. Fino’s
opinion is not supported by substantial evidence, and requires that the
case be remanded yet again.
We have also considered Island Creek’s arguments that the ALJ
failed to determine whether the evidence established that a material
change in condition occurred since the denial of Compton’s prior ben-
efits claim, and that Compton’s claim was untimely. We find these
arguments meritless.
Because the ALJ’s evaluation and discrediting of the opinion of Dr.
Fino was erroneous, we vacate the award of benefits. We are con-
vinced that the errors committed by the ALJ require a fresh perspec-
tive, and therefore direct that the BRB remand Compton’s claim to a
different ALJ for further consideration. Milburn Colliery Co. v. Hicks,
138 F.3d 524, 537 (4th Cir. 1998). We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
VACATED AND REMANDED