UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1218
HOBET MINING, INCORPORATED,
Petitioner,
versus
HAROLD TERRY; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-0420-BLA; 06-BLA-1383)
Argued: November 30, 2006 Decided: February 8, 2007
Before WIDENER and WILKINSON, Circuit Judges, and David A. FABER,
Chief United States District Judge for the Southern District of
West Virginia, sitting by designation.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C., Charleston,
West Virginia, for Petitioner. Kathryn Marie Speiker, Student
Caseworker, WASHINGTON & LEE UNIVERSITY, School of Law, Legal
Clinic, Lexington, Virginia, for Respondents. ON BRIEF: Kathy L.
Snyder, JACKSON & KELLY, P.L.L.C., Charleston, West Virginia, for
Petitioner. Mary Z. Natkin, Professor, WASHINGTON & LEE
UNIVERSITY, School of Law, Legal Clinic, Lexington, Virginia, for
Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This is a case for compensation under the Black Lung Benefits
Act (hereinafter “the Act”), 30 U.S.C. § 901 et. seq. The claim
was filed by the now deceased miner. The claim was granted by the
Administrative Law Judge (“ALJ”), and the decision was affirmed by
the Department of Labor Benefits Review Board (hereinafter “the
Board.”). This petition for review followed. We have jurisdiction
pursuant to 33 U.S.C. § 921(c) and 30 U.S.C. § 932(a).
I.
The parties agree that the decedent, Harold L. Terry, was
employed in various above-ground mining jobs for 26 years, and was
in the employ of the respondent, Hobet Mining, Inc. Hobet does not
dispute that it is the responsible operator for this claim.
Furthermore, the parties agree that Terry did not suffer from
clinical pneumoconiosis. The parties, however, disagree as to
whether the decedent had legal pneumoconiosis within the meaning of
the Act, so as to entitle him to benefits under the Act.
A.
A brief description of the procedural history is warranted.
A full description is given in the Board’s decision, and we see no
need to repeat it here.
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Terry originally filed his claim on July 1, 1980. The claim
was denied because the ALJ found that Terry failed to demonstrate
total disability by a respiratory or pulmonary impairment. The
ALJ’s ruling was affirmed by the Board.
On October 18, 1993, Terry filed a second claim under the Act.
This claim was denied because the ALJ found that Terry failed to
establish a “material change in conditions as required by 20 C.F.R.
§ 725.309(d).” Within a year of the denial, Terry timely filed a
request for modification pursuant to 20 C.F.R. § 725.310. The case
was assigned to the present ALJ after the District Director of the
Office of Worker’s Compensation denied the modification request.
The claim has been adjudicated by the ALJ and appealed to the
Board on four separate occasions. During each of the first three
rounds, the ALJ awarded benefits and the Board vacated the
findings, sending the matter back for reconsideration or
clarification.
Finally, on January 25, 2005, the ALJ issued the present
decision and order on remand. In that order he found existence of
legal pneumoconiosis, and the presence of total disability. The
ALJ once again awarded Terry benefits. Hobet once again appealed
to the Board. This time, the Board affirmed the ALJ in all
respects. This petition for review followed.
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B.
The ALJ considered submissions a number of submissions by
various physicians some of whom testified on behalf of Terry, and
some of whom testified on behalf of Hobet. The following
physicians testified for Mr. Terry: Drs. Rasmussen, Doyle, Cohen,
Koenig and Figueroa. Drs. Zaldivar, Fino, Hippensteel, Daniel,
Kress and Morgan testified for Hobet.
The ALJ evaluated each doctor’s testimony separately and made
findings of credibility with respect to each. Based on the
testimony, the ALJ ruled that the Terry carried his burden to
establish legal pneumoconiosis. In his analysis, the ALJ credited
the opinions of physicians testifying on behalf of Terry over those
testifying on behalf of Hobet. For the same reasons the ALJ
credited the opinions of the physicians testifying on Terry’s
behalf and gave greater weight to them over opinions of those
testifying on Hobet’s behalf. He concluded that Terry was totally
disabled.
Hobet challenges the findings made by the ALJ as irrational,
not supported by substantial evidence, and contrary to law.
II.
We review the factual findings of the ALJ for substantial
evidence. Thorn v. Itmann Coal Co., 3 F.3d 713, 718 (4th Cir.
1993). “[W]e undertake an independent review of the record, as in
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the place of the BRB, to determine whether the ALJ's factual
findings were based upon substantial evidence in the record.”
Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995).
“Substantial evidence is more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938). We review legal conclusions de novo. Ballard, supra
at 1193.
III.
A.
Prior to proceeding further, it is useful to define legal
pneumoconiosis and describe how it differs from clinical
pneumoconiosis. Both terms are well defined by the regulations
adopted pursuant to the Act and appearing at 20 C.F.R. § 718.201.
(a) For the purpose of the Act, “pneumoconiosis” means 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.
(1) Clinical Pneumoconiosis. “Clinical pneumoconiosis”
consists of those diseases recognized by the medical
community as pneumoconiosis, i.e., the conditions
characterized by permanent deposition of substantial
amounts of particulate matter in the lungs and the
fibrotic reaction of the lung tissue to that deposition
caused by dust exposure in coal mine employment. This
definition includes, but is not limited to, coal workers'
pneumoconiosis, anthracosilicosis, anthracosis,
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anthrosilicosis, massive pulmonary fibrosis, silicosis or
silicotuberculosis, arising out of coal mine employment.
(2) Legal Pneumoconiosis. “Legal 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.
(b) For purposes of this section, a disease “arising out
of coal mine employment” includes any chronic pulmonary
disease or respiratory or pulmonary impairment
significantly related to, or substantially aggravated by,
dust exposure in coal mine employment. (emphasis added)
20 C.F.R. §§ 718.201(a)-(b).
Thus, under the regulation, any respiratory disease arises out
of coal mine employment provided the disease is either
“significantly related to, or substantially aggravated by, dust
exposure in coal mine employment.”
B.
Hobet’s entire argument reduces to an attack on ALJ’s
credibility findings and overall weighing of the evidence.
We do not second-guess an ALJ’s findings of credibility and
his weighing of the evidence. See 33 U.S.C. § 921(b)(3) (“The
findings of fact in the decision under review by the Board shall be
conclusive if supported by substantial evidence in the record
considered as a whole.”) (emphasis added). Our role is simply to
ensure that the ALJ considered all relevant evidence and reached a
decision that was rational and sufficiently explained. See Gordon
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v. Schweiker, 725 F.2d 231, 235-36 (4th Cir. 1984) (“Unless the
Secretary 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.’”).
Hobet’s principal argument is that ALJ’s findings with respect
to Drs. Rasmussen and Koenig are not supported by substantial
evidence, because according to Hobet the testimony of these
physicians is equivocal. To begin with, we have held that the use
of less than certain language does not automatically disqualify the
physician’s opinion as equivocal. Perry v. Mynu Coals, Inc., ___
F.3d ___ (4th Cir. 2006) (Slip at 10). The entire statement must
be read in context to determine whether the opinion is equivocal.
This is again an area where we defer to the ALJ’s factual findings.
However, even if we were free to write on a clean slate, a fair
reading of Dr. Rasmussen’s opinion indicates that his use of the
word possible was used to set up the overall predicate for his
opinion which was in fact unequivocal. The same applies to Dr.
Koenig's using the word could. And Dr. Rasmussen's opinion was
supported by a breath diffusing capacity test.
Furthermore, even if we were to agree with Hobet that the
testimony of Drs. Rasmussen and Koenig should not have been
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persuasive, there is the testimony of Dr. Doyle. The ALJ found
that Dr. Doyle was persuasive and that in reaching his conclusions
Dr. Doyle relied on studies published by the National Institute of
Occupational Safety & Health. This finding alone, if accepted, as
it was, would be enough to conclude that the ALJ’s opinion is
supported, and ought to be affirmed. The Board agreed that Dr.
Doyle's opinion was "supportive of 'legal' pneumoconiosis." J.A.
844.
Hobet’s remaining attacks on credibility determinations and
evidence weighing are equally unpersuasive.
C.
Hobet also argues that the ALJ "afforded the Claimant an
invalid presumption that he has pulmonary impairment which is
aggravated by coal dust exposure thereby relieving the Claimant of
his 'obligation to affirmatively prove the presence of legal
pneumoconiosis by a reasonable medical opinion.'" Br. p.50.
We have examined the opinion of the ALJ and do not find any
such presumption. Because Hobet had raised exactly the same
objection in its appeal to the Board which rejected the claim and
held that the ALJ had "correctly placed the burden of proving the
existence of legal pneumoconiosis on Claimant." J.A. 841. Because
we review the decision of the Board, even making the objection in
the form stated in the brief, is, at the very best, hardly good
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form. The argument is entirely without arguable merit. We affirm
the decision of the Board.
D.
Hobet’s next argument that the findings of total disability is
erroneous as contrary to objective studies is "irrational, not
supported by substantial evidence, and contrary to applicable law."
Br. p.51. It relies on bloodgas studies which did not meet the
regulatory definition of disability. The Code of Federal
Regulation defines total disability as follows:
(c)(1) Total disability due to pneumoconiosis defined.
A miner shall be considered totally disabled due to
pneumoconiosis if pneumoconiosis, as defined in §
718.201, is a substantially contributing cause of the
miner’s totally disabling respiratory or pulmonary
impairment. Pneumoconiosis is a ‘‘substantially
contributing cause’’ of the miner’s disability if it:
(I) Has a material adverse effect on the miner’s
respiratory or pulmonary condition; or
(ii) Materially worsens a totally disabling respiratory
or pulmonary impairment which is caused by a disease or
exposure unrelated to coal mine employment.
20 C.F.R. § 718.204(c) (emphasis added).
The regulations do not require any particular objective
values. All that is required is that pneumoconiosis have a
material adverse effect on the miner’s condition. Any argument
that Terry should not be found to be totally disabled because his
respiratory studies were outside the values set for total
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regulatory disability from the studies is contrary to law and
confuses two independent sections of the regulations.
IV.
From the opinion of the ALJ and the Board, it is clear that
they did a comprehensive job addressing all of the evidence of
record. The ALJ considered opinions of several experts, and
voluminous medical records. The ALJ gave the reasons for his
decision in a 28 page opinion in which he thoroughly explained why
he credited certain physicians more than others. Understandably,
Hobet disagrees with the ALJ’s findings and believes that the
evidence submitted by its experts should have convinced the ALJ.
However, given the ALJ’s thorough fact-finding, and the Board's
reviews, it cannot be said that the decisions are irrational or
that they failed to consider all evidence of record.
The Board's decision is summarized as “[a]ccordingly, we
affirm the administrative law judge's finding that claimant's
totally disabling respiratory impairment was due to pneumoconiosis,
pursuant to 20 C.F.R. § 718.204(c) [footnote omitted].” We agree
with the Board.
The petition for review is accordingly
DENIED.
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