Sea "B" Mining Company v. Dunford

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-1497

SEA “B” MINING COMPANY,

Petitioner,

versus

CALVIN DUNFORD; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,

Respondents.

____________________

JAMES PHEMISTER, Professor,

Amicus Supporting Respondent Dunford.

On Petition for Review of an Order of the Benefits Review Board.
(03-495-BLA; 02-161-BLA)

Argued: November 30, 2005 Decided: June 27, 2006

Before MICHAEL and DUNCAN, Circuit Judges, and Walter D. KELLEY,
Jr., United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Timothy Ward Gresham, PENN, STUART & ESKRIDGE, Abingdon,
Virginia, for Petitioner. Matthew L. Trinidad, WASHINGTON & LEE
UNIVERSITY, School of Law, Lexington, Virginia; Jeffrey Steven
Goldberg, UNITED STATES DEPARTMENT OF LABOR, Office of the
Solicitor, Washington D.C., for Respondents. ON BRIEF: Howard M.
Radzely, Solicitor of Labor, Donald S. Shire, Associate Solicitor,
Patricia M. Nece, Counsel for Appellate Litigation, Sarah M.
Hurley, Attorney, UNITED STATES DEPARTMENT OF LABOR, Office of the
Solicitor, Washington, D.C., for Federal Respondent. James M.
Phemister, WASHINGTON & LEE UNIVERSITY, School of Law, Lexington,
Virginia, Amicus Supporting Respondent Dunford.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

2
PER CURIAM:

After twenty-two (22) years of litigation, respondent Calvin

Dunford finally convinced an Administrative Law Judge ("ALJ") to

award him black lung benefits pursuant to the Black Lung Benefits

Act (the "Act"), 30 U.S.C. §§ 901 et seq. The Benefits Review

Board (the "Board") affirmed the award of benefits, so the company

that owns the mine in which respondent formerly worked, petitioner

Sea "B" Mining Company, now appeals to this Court. Because our

review of the record discloses that the Board's decision was based

on substantial evidence and applied the proper standards, we

affirm.

I.

Dunford concluded a 32-year career as a coal miner in February

1979. He filed his first claim for black lung benefits in August

of that year. By Decision and Order dated October 1981, ALJ

Nicodemo De Gregorio denied Dunford's claim. The Board affirmed

this denial. Dunford v. Jewell Ridge Coal Corp., No. 81-2205-BLA

(BRB Sept. 28, 1984).

A claimant may file a new petition for modification within one

year of the denial of the claimant's previous modification

petition, Betty B. Coal Co. v. Director, OWCP, 194 F.3d 491, 498

(4th Cir. 1999); see 20 C.F.R. § 725.310(a), and customary

principles of finality do not apply to claims for black lung

3
benefits, Consolidation Coal Co. v. Borda, 171 F.3d 175, 180 (4th

Cir. 1999); Jessee v. Director, OWCP, 5 F.3d 723, 725 (4th Cir.

1993). Dunford took advantage of this lenity to file in April 1985

a new claim for benefits, which was treated as a request for

modification. Almost five years later, in January 1990, ALJ John

S. Patton issued a Decision and Order denying Dunford's request for

modification. The Board and this Court affirmed ALJ Patton's

decision. See Dunford v. Jewell Ridge Coal Corp., No. 92-2071 (4th

Cir. Sept. 3, 1993) (unpublished); Dunford v. Jewell Ridge Coal

Corp., No. 90-645-BLA (BRB Jan. 28, 1992).

Dunford sought benefits again in December 1993 when he

requested modification on the basis of "new evidence of a worsening

medical condition." ALJ De Gregorio denied Dunford's modification

request in May 1996, but the Board vacated his Decision and Order

and remanded the case for further consideration. See Dunford v.

Jewell Ridge/See "B" Mining Co., No. 96-1085-BLA (BRB May 16,

1997).

On remand, Dunford's case was reassigned to ALJ Anne B.

Torkington. Like the ALJs before her, ALJ Torkington assessed

plaintiff's claims under the "interim regulations" of the Act, 20

C.F.R. §§ 727.1 through 727.405. As the claimant, Dunford bore the

initial burden of proving entitlement to an interim presumption

that he is totally disabled due to pneumoconiosis arising from his

coal mine employment. See 20 C.F.R. § 727.203(a); Lane Hollow Coal

4
Co. v. Director, OWCP, 137 F.3d 799, 803 (4th Cir. 1998). Once

Dunford established entitlement to the interim presumption, Sea "B"

bore the burden of rebuttal.1 See 20 C.F.R. § 727.203(b); Lane

Hollow Coal Co., 137 F.3d at 803. Sea "B" could rebut the interim

presumption by establishing that:

(1) the miner is doing his usual coal mine work or
comparable and gainful work;

(2) the miner is able to do his usual coal mine or
comparable work;

(3) the total disability of the miner did not arise in
whole or in part out of his coal mine employment; or

(4) the miner does not have pneumoconiosis.

20 C.F.R. § 727.203(b).

ALJ Torkington denied Dunford's claim for benefits in a

Decision and Order on Remand issued in February 1998. ALJ

Torkington found that while Dunford was entitled to the interim

presumption, Sea "B" successfully rebutted that presumption

pursuant to 20 C.F.R. § 727.203(b)(3) by proving that Dunford's

respiratory impairment and disability did not arise in whole or in

part from his coal mine employment. ALJ Torkington further found

that Dunford did not suffer from pneumoconiosis, thus rebutting the

presumption pursuant to 20 C.F.R. § 727.203(b)(4).

ALJ Torkington based her rulings on the opinions of Sea "B"'s

expert physicians: Gregory J. Endres-Bercher, M.D., Kirk E.

1
Only rebuttal pursuant to 20 C.F.R. §§ 727.203(b)(3) and
(b)(4) is at issue in the present appeal.

5
Hippensteel, M.D., J. Dale Sargent, M.D., and Gregory J. Fino, M.D.

Each employer physician opined that Dunford did not have

pneumoconiosis and that his employment in the coal mines did not

contribute to his respiratory impairment. ALJ Torkington noted

that Dr. Sargent examined Dunford on two occasions and reviewed his

past medical history. ALJ Torkington further noted that Dr. Fino

had the opportunity to review Dunford's entire medical record while

Dunford's expert physician, Corrado Ugolini, M.D., did not review

any of Dunford's pre-1988 medical records. It was during 1988 that

Dunford underwent a lobectomy to remove a cancerous portion of his

lung. ALJ Torkington found that Dunford did not show any

respiratory impairment in the time period between his departure

from coal mine employment in 1979 and his lung surgery in 1988.

Additionally, ALJ Torkington found the opinions of Dunford's

expert physicians, including Emory H. Robinette, M.D. and L. Dow

Strader, M.D., to be unpersuasive and equivocal concerning the

cause of Dunford's respiratory impairment. ALJ Torkington noted

that another of Dunford's expert physicians, Dr. V. D. Modi, had

diagnosed Dunford as suffering from disabling pneumoconiosis

"despite blood gas and pulmonary function studies with values which

exceed those set forth in the regulations indicating total

disability."

ALJ Torkington stated in her decision that Sea "B"'s expert

physicians, Drs. Fino, Sargent, Endres-Bercher, and Hippensteel,

6
had excellent qualifications and possessed considerable experience

and expertise. She found that these doctors "presented better

reasoned and documented medical opinions" than did Dunford's expert

physicians. ALJ Torkington concluded that the evidence in the

record demonstrated "a slight improvement" in Dunford's condition,

rather than a deterioration.

After the Board affirmed ALJ Torkington's Decision and Order

on Remand denying Dunford's claim for benefits, Dunford v. Jewell

Ridge/Sea "B" Mining Co., No. 98-0704-BLA (BRB Feb. 18, 1999),

Dunford filed yet another request for modification of the denial of

his claim. This time he found success. In October 2001, yet

another ALJ, Alice M. Craft, issued a Decision and Order Awarding

Benefits on Modification. In the course of ruling that Dunford was

entitled to benefits beginning in June 1987, ALJ Craft found that

ALJ Torkington made a mistake in fact2 when she found that Sea "B"

2
The ALJ's are not required to defer to each other's
decisions. The "modification procedure is extraordinarily broad,
especially insofar as it permits the correction of mistaken factual
findings." Betty B. Coal Co., 194 F.3d at 497. The ALJ has "broad
discretion to correct mistakes of fact, whether demonstrated by
wholly new evidence, cumulative evidence, or merely further
reflection on the evidence initially submitted." Jessee, 5 F.3d at
724 (quoting O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S.
254, 256 (1971)); see also Betty B. Coal Co., 194 F.3d at 497.
The ALJ may correct any mistake of fact, including the
ultimate issue whether the claimant is eligible for benefits.
Betty B. Coal Co., 194 F.3d at 497; see Jessee, 5 F.3d at 724-25 &
n.2. "There is no need for a smoking-gun factual error, changed
conditions, or startling new evidence." Jessee, 5 F.3d at 725; see
also Borda, 171 F.3d at 181. The "claimant may simply allege that
the ultimate fact –- disability due to pneumoconiosis –- was
mistakenly decided." Jessee, 5 F.3d at 725; see also Borda, 171

7
had rebutted the interim presumption pursuant to 20 C.F.R. §§

727.203(b)(3) and (b)(4). Specifically, ALJ Craft determined that

ALJ Torkington made a mistake in fact in finding rebuttal pursuant

to 20 C.F.R. § 727.203(b)(3) because Sea "B" had failed to rule out

the causal relationship between Dunford's total disability and his

coal mine employment.

ALJ Craft also found that ALJ Torkington made a mistake in

fact by finding rebuttal under 20 C.F.R. § 727.203(b)(4) because

Sea "B" had failed to establish that Dunford did not suffer from

"legal pneumoconiosis." ALJ Craft concluded that Sea "B" did not

meet its burden of rebuttal because the opinions of Drs. Fino and

Ugolini were in "equipoise" concerning the presence of "legal

pneumoconiosis." In the alternative, ALJ Craft found that ALJ

Torkington made a mistake in fact by finding an absence of "legal

pneumoconiosis" because employer expert physician Dr. Fino's

opinion on the subject was "hostile" to the Act.

Sea "B" appealed to the Board, which affirmed ALJ Craft's

award of benefits to Dunford but vacated her finding concerning the

commencement date of that award. See Dunford v. Sea "B" Mining

Coal Co., No. 02-0161-BLA (BRB Oct. 30, 2002). On remand, ALJ

Craft determined that Dunford was entitled to benefits beginning in

August 1988. Sea "B" appealed to the Board, which affirmed ALJ

F.3d at 181.

8
Craft's Decision and Order on Remand. See Dunford v. Sea "B"

Mining Coal Co., No. 03-0495-BLA (BRB Feb. 25, 2004). Sea "B" now

appeals to this Court.

II.

It is well established that our review of the Board's Decision

and Orders is limited. See Lewis Coal Co. v. Director, OWCP, 373

F.3d 570, 575 (4th Cir. 2004). We conduct an independent review of

the record to determine whether the Board correctly found that the

ALJ's factual findings were supported by substantial evidence in

the record. Consolidation Coal Co. v. Held, 314 F.3d 184, 186 (4th

Cir. 2002); Scott v. Mason Coal Co., 289 F.3d 263, 267 (4th Cir.

2002); Island Creek Coal Co. v. Compton, 211 F.3d 203, 207 (4th

Cir. 2000). "Substantial evidence is more than a mere scintilla."

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see also

Compton, 211 F.3d at 207-08; Piney Mountain Coal Co. v. Mays, 176

F.3d 753, 756 (4th Cir. 1999); Milburn Colliery Co. v. Hicks, 138

F.3d 524, 528 (4th Cir. 1998). Rather, it is "such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion." Consol. Edison Co., 305 U.S. at 229; see also

Scott, 289 F.3d at 267; Compton, 211 F.3d at 208; Mays, 176 F.3d at

756.

In conducting our review of the ALJ's decision for substantial

evidence, we must "uphold decisions that rest within the realm of

9
rationality." Mays, 176 F.3d at 756. We may not reweigh the

evidence, substitute our judgment for that of the ALJ, or set aside

an inference merely because we find the opposite conclusion more

reasonable or because we question the factual basis. See id.; Lane

v. Union Carbide Corp., 105 F.3d 166, 170 (4th Cir. 1997); Doss v.

Director, OWCP, 53 F.3d 654, 659 (4th Cir. 1995). We review the

ALJ's findings to determine whether the ALJ considered all relevant

evidence and sufficiently explained her rationale in crediting

certain evidence. Bill Branch Coal Corp. v. Sparks, 213 F.3d 186,

190 (4th Cir. 2000); Milburn Colliery Co., 138 F.3d at 528; see

Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th

Cir. 1997).

In particular, we must defer to the ALJ's evaluation of the

proper weight to accord conflicting medical opinions. Lane, 105

F.3d at 172; Stiltner v. Island Creek Coal Co., 86 F.3d 337, 342

(4th Cir. 1996). However, we review de novo the ALJ's and Board's

conclusions of law to determine whether they are rational and

consistent with applicable law. Milburn Colliery Co., 138 F.3d at

528; see Held, 314 F.3d at 186; Compton, 211 F.3d at 208.

III.

Sea "B" does not dispute in this appeal that Dunford

established the interim presumption pursuant to 20 C.F.R. §

727.203(a)(2) by producing ventilatory studies which established

10
the presence of a chronic respiratory or pulmonary impairment. Sea

"B" instead argues that ALJ Craft erred when she ruled that ALJ

Torkington made a "mistake in fact" in determining that Sea "B" had

successfully rebutted the interim presumption pursuant to 20 C.F.R.

§§ 727.203(b)(3) and (b)(4). Sea "B" asserts, among other things,

that ALJ Craft failed to consider all the relevant evidence in the

record and that her findings are not supported by substantial

evidence, are not rational, and are not in accordance with the

applicable law. Sea "B" further contends that ALJ Craft

incorrectly determined August 1988 to be the commencement date for

Dunford's benefits. Sea "B"'s arguments are unpersuasive.3

A. Rebuttal of the Interim Presumption

1. Rebuttal under subsection 203(b)(3)

Rebuttal of the interim presumption under 20 C.F.R. §

727.203(b)(3) is difficult. Lane Hollow Coal Co., 137 F.3d at 804;

Grigg v. Director, OWCP, 28 F.3d 416, 418 (4th Cir. 1994). To

carry its burden of rebutting the presumption, Sea "B" was required

to rule out the causal relationship between Dunford's total

disability and his coal mine employment. Borda, 171 F.3d at 184-

3
The Director, Office of Workers' Compensation Programs, has
filed a brief in support of ALJ Craft's determination that Dunford
is entitled to black lung benefits as of August 1988 and her
decision to discredit Dr. Fino's opinion concerning the absence of
legal pneumoconiosis as "hostile" to the spirit of the Act. The
Director takes no position on the merits of Dunford's claim.

11
85; Lane Hollow Coal Co., 137 F.3d at 804; Grigg, 28 F.3d at 418.

Sea "B" could have accomplished this task with evidence proving

either that Dunford "has no respiratory or pulmonary impairment of

any kind . . . or that such impairment was not caused in whole or

in part by his coal mine employment." Borda, 171 F.3d at 185.

Substantial evidence supports ALJ Craft's determination that

Sea "B" failed in this difficult task. As an initial matter, ALJ

Craft understandably could not reconcile the various conflicting

opinions of Sea "B"'s expert physicians. In November 1979,

employer expert physician Dr. Hippensteel questioned whether

Dunford suffered from coal workers' pneumoconiosis and determined

that he had only "minimal pulmonary impairment." In a June 1980

deposition, Dr. Hippensteel testified that Dunford did not suffer

from any pulmonary disability due to lung disease, regardless of

its etiology. In June 1987, employer expert physician Dr. Endres-

Bercher found no evidence of pulmonary impairment due to coal dust

exposure, cigarette smoking, or "any other etiologic factor."

Another employer expert physician, Dr. Fino, contradicted Drs.

Hippensteel's and Endres-Bercher's conclusion that Dunford had no

pulmonary impairment. In an April 1989 report, Dr. Fino diagnosed

Dunford as suffering from both a "restrictive" and an "obstructive"

respiratory impairment.4 Dr. Fino determined that Dunford's

4
A restrictive lung disease diminishes the patient's ability
to inhale air into the lungs, whereas an "obstructive" disease
diminishes the patient's ability to expel air from the lungs. Gulf

12
restrictive impairment was caused by Dunford's lobectomy and not by

exposure to coal dust.5 Dr. Fino concluded that Dunford's "mild

obstructive ventilatory defect" was not related to industrial

bronchitis or coal dust inhalation because those conditions result

in "irreversible" airway obstruction, whereas Dunford's condition

showed signs of reversibility. While Dr. Fino was unsure whether

Dunford's obstructive impairment was related to his prior history

of smoking cigarettes, he concluded that Dunford's obstructive

impairment "may very well be related to the development of asthma,"

which results in a reversible airway obstruction.

A fourth employer expert physician also contradicted Drs.

Hippensteel's and Endres-Bercher's conclusion that Dunford had no

pulmonary impairment. In a May 1989 medical report, employer

expert physician Dr. Sargent diagnosed Dunford as suffering from a

"moderate" ventilatory impairment, but attributed it to Dunford's

previous lung surgery and not the result of coal dust exposure. In

October 1994, Dr. Sargent concluded that Dunford now suffered from

"very minimal, if any," respiratory impairment, which he attributed

& W. Indus. v. Ling, 176 F.3d 226, 229 n.6 (4th Cir. 1999). An
obstructive impairment can be caused by coal mine employment. See
20 C.F.R. § 718.201(a)(2); Stiltner, 86 F.3d at 341; Warth v. S.
Ohio Coal Co., 60 F.3d 173, 174-75 (4th Cir. 1995).
5
In September 1988, a lobe of Dunford's right lung was removed
as part of his treatment for lung cancer (adenocarcinoma). Dr.
Sargent, Dr. Fino, and James R. Castle, M.D., opined that there is
no evidence linking lung cancer to coal dust exposure. Dunford
does not challenge their opinions concerning the lack of such a
causal link.

13
to Dunford's prior lung surgery. In a May 1995 deposition, Dr.

Sargent testified that Dunford suffered from a "mild resting

hypoxemia" respiratory impairment that resulted from Dunford's

lobectomy.

In a June 2000 medical report, employer expert physician Dr.

Castle stated that there was no evidence that Dunford suffered from

a restrictive respiratory impairment. However, Dr. Castle did

diagnose Dunford as suffering from an "obstructive" respiratory

impairment. Specifically, Dr. Castle opined that "Dunford may be

permanently and totally disabled as a result of his mild, partially

reversible airway obstruction." Dr. Castle determined that

Dunford's obstructive impairment was most likely related to his

asthmatic bronchitis and "contributed to somewhat" by his prior

history of smoking.6

In deposition testimony, Dr. Castle described Dunford's

obstructive respiratory impairment as "a mild significantly

reversible respiratory impairment that is related to his previous

tobacco smoking history and asthmatic bronchitis." Dr. Castle

concluded that Dunford's obstructive impairment was not related to

his coal dust exposure.

6
The various medical reports indicate that Dunford smoked
approximately one pack of cigarettes per day for about 20 years.
Dunford ceased smoking in 1962, 15 years before he quit working in
the coal mines.

14
 ALJ Craft discredited Dr. Castle's attribution of Dunford's

cigarette smoking history as a partial cause of his obstructive

respiratory impairment. ALJ Craft explained that she had

"difficulty accepting" Dr. Castle's explanation concerning the

causation of the obstructive impairment because Dunford had ceased

smoking tobacco 15 years before he quit his coal mine employment

and removed himself from the accompanying exposure to coal dust.

Because Sea "B" was unable to explain fully the cause of Dunford's

obstructive impairment, ALJ Craft appropriately concluded that Sea

"B" had failed to rule out the causal relationship between

Dunford's total disability and his coal mine employment.

ALJ Craft's conclusion is supported by the 1995 medical report

of Dunford's expert physician, Dr. Ugolini. In his report, Dr.

Ugolini noted that "the National Institute for Occupational Safety

and Health (NIOSH) is of the opinion, based on available scientific

data, that coal mine dust causes obstructive lung disease,

bronchitis with or without significant obstruction, and

emphysema."7 Dr. Ugolini opined that the "notion that coal dust

produces only the classic restrictive pattern of lung disease is

now obsolete, in light of the current epidemiological research."

Dr. Ugolini stated that "[c]umulative coal dust exposure" in the

amount suggested by Dunford's employment history is "well known to

7
Dunford had been diagnosed as suffering from, among other
things, chronic obstructive pulmonary disease, emphysema, and
asthmatic bronchitis.

15
cause pulmonary impairment similar to the one found in Mr.

Dunford." Dr. Ugolini concluded that while Dunford's "remote"

smoking history was the "only other exposure" that could possibly

have contributed to Dunford's obstructive lung disease, it was his

opinion to a reasonable degree of medical certainty that Dunford's

exposure to coal dust "significantly contributed" to Dunford's

obstructive impairment, chronic bronchitis, and emphysema.

Dr. Ugolini's report and the internally contradictory opinions

of Sea "B"'s experts provide substantial evidence to support ALJ

Craft's determination that Sea "B" did not rebut the interim

presumption under 20 C.F.R. § 727.203(b)(3) because it could not

show that Dunford had no respiratory or pulmonary impairment of any

kind or that such impairment was not caused in whole or in part by

his coal mine employment. See Borda, 171 F.3d at 185.

2. Rebuttal under subsection 203(b)(4)

Substantial evidence also supports ALJ Craft's determination

that Sea "B" failed to rebut the interim presumption under 20

C.F.R. § 727.203(b)(4) by showing an absence of "legal

pneumoconiosis."8 ALJ Craft considered the conflicting opinions of

8
The Act defines "pneumoconiosis" as "a chronic dust disease
of the lung and its sequelae, including respiratory and pulmonary
impairments, arising out of coal mine employment. This definition
includes both medical, or 'clinical', pneumoconiosis and statutory,
or 'legal', pneumoconiosis." 20 C.F.R. § 718.201(a). The Act
defines "legal pneumoconiosis" as "any chronic lung disease or
impairment and its sequelae arising out of coal mine employment.

16
Drs. Fino and Ugolini, both of whom addressed the issue of whether

Dunford suffered from "legal pneumoconiosis." ALJ Craft examined

the physicians' curriculum vitae and found that employer expert

physician Dr. Fino's credentials did not entitle his opinions to

any greater weight than those of Dunford's expert physician, Dr.

Ugolini. ALJ Craft noted that the research publications of Dr.

Fino did not appear to concern pneumoconiosis whereas Dr. Ugolini

was associated with NIOSH when that organization conducted studies

concerning the relationship between chronic lung disease and coal

dust exposure. Because ALJ Craft found the physicians' opinions to

be "equally documented with reference to pertinent studies," she

concluded that their opinions were, at best, in "equipoise." ALJ

Craft thus properly determined that Sea "B" had failed to carry its

burden of rebutting the interim presumption pursuant to 20 C.F.R.

§ 727.203(b)(4).

In the alternative, ALJ Craft discredited certain of Dr.

Fino's opinions that she determined to be "hostile" to the Act. An

ALJ may properly discount an expert physician's opinion as

"hostile" to the Act when the opinion is based on a premise that is

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). The term "legal
pneumoconiosis" is broader than "medical" or "clinical"
pneumoconiosis because it "also encompasses 'diseases whose
etiology is not the inhalation of coal dust, but whose respiratory
and pulmonary symptomatology have nonetheless been made worse by
coal dust exposure.'" Lewis Coal Co., 373 F.3d at 577 (quoting
Clinchfield Coal Co. v. Fuller, 180 F.3d 622, 625 (4th Cir. 1999)).

17
fundamentally at odds with the statutory and regulatory scheme.

See Lewis Coal Co., 373 F.3d at 580; Mays, 176 F.3d at 760 n.7;

Lane, 105 F.3d at 173; Warth v. S. Ohio Coal Co., 60 F.3d 173, 174

n.* (4th Cir. 1995); Thorn v. Itmann Coal Co., 3 F.3d 713, 719 (4th

Cir. 1993). Dr. Fino's opinion that Dunford does not suffer from

legal pneumoconiosis was based on two premises that are hostile to

the Act.

First, Dr. Fino concluded in a June 1995 medical report that

Dunford's obstructive impairment could not be attributed to coal

dust inhalation because he did not have any ventilatory impairment

when he left his employment in the mines in 1979. Dr. Fino stated

that "[i]f a miner has no functional impairment due to coal mine

dust inhalation at the time he leaves the mines, then that worker

will not develop a functional impairment due to coal workers'

pneumoconiosis in the absence of further coal mine dust exposure."

This premise directly conflicts with the Act's premise that coal

workers' pneumoconiosis is a "latent and progressive disease which

may first become detectable only after the cessation of coal mine

dust exposure." 20 C.F.R. § 718.201(c).

Second, Dr. Fino opined that "obstruction is not a clinically

significant abnormality arising out of the inhalation of coal mine

dust." Dr. Fino further stated, "[c]ertainly the epidemiologic

data that is available at this time, and all of the epidemiologic

research, has not documented a disabling respiratory abnormality of

18
an obstructive nature arising out of coal mine dust exposure." Dr.

Fino thus concluded that Dunford's obstructive impairment could not

have been caused by his coal mine employment. This conclusion,

however, conflicts with the Act's premise that an obstructive

impairment can be caused by coal mine employment. See 20 C.F.R. §

718.201(a)(2); Stiltner, 86 F.3d at 341; Warth, 60 F.3d at 174-75.

Because ALJ Craft properly found these two opinions to be

hostile to the Act, she appropriately discredited Dr. Fino's

opinion in her determination whether Sea "B" had proved that

Dunford does not suffer from legal pneumoconiosis.

B. Reversibility of Pneumoconiosis

Contrary to Sea "B"'s arguments, ALJ Craft properly considered

the evidence of reversibility in the record. Employer expert

physician Dr. Castle described Dunford's obstructive impairment as

only "partially reversible" in his medical report. Thus, Dunford's

obstructive impairment was partially irreversible. As previously

noted, ALJ Craft permissibly rejected Dr. Castle's opinion that

Dunford's prior smoking history was a contributing cause of the

obstructive impairment. Accordingly, the evidence in the record

supports ALJ Craft's conclusion that Sea "B" failed to rule out

Dunford's coal mine employment as a contributing cause of Dunford's

partially irreversible obstructive impairment.

19
 Further, ALJ Craft fully considered the results of Dunford's

pulmonary function studies, which revealed indications of

reversibility.9 ALJ Craft noted that Dunford achieved qualifying

scores in the pulmonary function studies administered between

August 1988 and January 1999.10 ALJ Craft further noted that

Dunford's FEV1 scores improved after the administration of

bronchodilators.11 While this improvement suggests some

reversibility of Dunford's impairment, Dunford still received

qualifying FEV1 scores both before and after the administration of

the bronchodilators.12 Two minor exceptions to the qualifying

9
A pulmonary function study measures the obstruction in the
airways of the patient's lungs and the degree of pulmonary function
impairment. The greater the resistance to airflow, the greater the
degree of the patient's lung impairment. Pulmonary function tests
include forced expiratory volume in one second (FEV1) and maximum
voluntary ventilation (MVV). FEV1 measures the amount of air a
patient can exhale in one second using maximum effort, and is
expressed in terms of liters per second. MVV measures the maximum
volume of air that can be moved by the patient's respiratory
apparatus in one minute, and is expressed in terms of liters per
minute. In order to invoke the interim presumption pursuant to 20
C.F.R. § 727.203(a)(2), a claimant of Dunford's age and height must
have a "qualifying" FEV1 score of 2.70 or less and a "qualifying"
MVV score of less than or equal to 108.
10
Dunford's March 1996 pulmonary function study cannot be
considered as qualifying for the interim presumption because no MVV
was recorded.
11
A bronchodilator is a medication that relaxes the bronchial
muscles and thus expands the air passages of the bronchi.
12
While Dunford achieved a qualifying score before the
administration of bronchodilator medication in the January 1994
pulmonary function study, no post-bronchodilator results were
obtained.

20
scores occurred in August 1988 and October 1994, when Dunford

achieved post-bronchodilator scores of 2.76 and 2.77, respectively.

ALJ Craft rationally disregarded these two scores because they were

close to the qualifying FEV1 score of 2.70.

ALJ Craft found that the opinions of most of the physicians

who had diagnosed Dunford as suffering from a coal dust related

disease supported the conclusion that Dunford's pre-bronchodilator

FEV1 scores accurately reflected his capacity to perform in his

coal mine employment. ALJ Craft further found Dunford's pulmonary

function studies to be "consistently qualifying, with the rare and

close exceptions described above." Accordingly, substantial

evidence supports ALJ Craft's conclusion that the evidence in the

record failed to rule out coal mine employment as a cause of

Dunford's total disability.

C. Start Date for Benefits

Substantial evidence also supports ALJ Craft's determination

pursuant to 20 C.F.R. § 725.503(b) that Dunford was entitled to

benefits beginning in August 1988.13 She selected this date because

13
That regulation provides, in relevant part:

Benefits are payable to a miner who is entitled beginning
with the month of onset of total disability due to
pneumoconiosis arising out of coal mine employment.
Where the evidence does not establish the month of onset,
benefits shall be payable to such miner beginning with
the month during which the claim was filed.

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it was the month of onset of his total disability due to

pneumoconiosis. See 20 C.F.R. § 725.503(b). ALJ Craft found that

all of Dunford's pulmonary function test results since that time,

with the exception of the two "rare and close" post-bronchodilator

FEV1 scores described above, qualified Dunford for the rebuttable

presumption, which Sea "B" had failed to rebut.

Further, ALJ Craft found that the "opinions of most of the

physicians who diagnosed coal dust related disease support the

conclusion that the pre-bronchodilator values accurately reflected

Mr. Dunford's capacity to perform coal mine work." For example, in

March 1987, a full year and one-half prior to Dunford's September

1988 surgery for lung cancer, one of Dunford's expert physicians,

Dr. Modi, examined Dunford and diagnosed him as suffering from an

"interstitial pulmonary fibrosis secondary to exposure to coal

dust." Dr. Modi concluded that Dunford was "totally impaired and

disabled due to coal dust inhalation."

Similarly, in February 1989, Dunford's expert physician Dr.

Robinette examined Dunford and diagnosed him as having "an

obstructive airway disorder." Dr. Robinette stated that while

Dunford's condition "shows partial reversibility," he anticipated

it to be a "chronic and irreversible" condition.

Dunford's expert physician Dr. Strader examined him in August

1993 and determined that he suffered from pneumoconiosis. Dr.

20 C.F.R. § 725.503(b).

22
Strader concluded that Dunford's condition "probably" arose from

his coal mine employment and that Dunford was "probably disabled

from doing coal mine work." In a May 1995 medical report,

Dunford's expert physician Dr. Ugolini also concluded that Dunford

suffered from coal workers' pneumoconiosis.

After considering the medical opinions of Drs. Modi, Strader,

Robinette, and Ugolini in conjunction with Dunford's pulmonary

function test results, ALJ Craft concluded that "the record

establishes that Mr. Dunford was totally disabled due to

pneumoconiosis by the month of August 1988, when his pulmonary

function tests first resulted in qualifying values." This

determination was rational, supported by substantial evidence, and

in accordance with the applicable law.

IV.

After considering the joint appendix, the briefs, and the

arguments of counsel, we find no reversible error. We hold that

ALJ Craft appropriately considered all the relevant evidence and

that her award of benefits to Dunford on modification and her

determination of the onset date of that award are supported by

substantial evidence, rational, and in accordance with the law. We

therefore affirm the Board's Decision and Orders affirming the

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award of benefits to Dunford. Sea "B"'s petition for review is

denied.

AFFIRMED

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