UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1435
ISLAND CREEK COAL COMPANY,
Petitioner,
versus
WILLIAM L. GROVES; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-0559-BLA)
Submitted: July 18, 2007 Decided: August 17, 2007
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Ashley M. Harman, William S. Mattingly, JACKSON KELLY PLLC,
Morgantown, West Virginia, for Petitioner. John Cline, Piney View,
West Virginia, for Respondent William L. Groves.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Island Creek Coal Company (employer) seeks review of the
Benefits Review Board’s (BRB) decision and order affirming the
administrative law judge’s (ALJ) award of black lung benefits on a
claim filed by William Lawrence Groves pursuant to 30 U.S.C.
§§ 901-945 (2000). Because we conclude that the ALJ erred in her
evaluation of the evidence, we vacate the award of benefits and
remand for reconsideration.
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. Consolidation
Coal Co. v. Held, 314 F.3d 184, 186 (4th Cir. 2002). In making
this determination, we undertake an independent review of the
record to decide whether the ALJ’s findings are supported by
substantial evidence. Dehue Coal Co. v. Ballard, 65 F.3d 1189,
1193 (4th Cir. 1995). Substantial evidence is more than a
scintilla, but only such evidence that a reasonable mind could
accept as adequate to support a conclusion. Lane v. Union Carbide
Corp., 105 F.3d 166, 170 (4th Cir. 1997). In conducting such
review, however, the court confines itself to the grounds upon
which the BRB based its decision. Grigg v. Dir., Office of
Workers’ Comp. Programs, 28 F.3d 416, 418 (4th Cir. 1994).
Subject to the substantial evidence requirement, the ALJ
has the sole authority to make credibility determinations and
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resolve inconsistencies or conflicts in the evidence. 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. Freeman United Coal Mining Co. v.
Cooper, 965 F.2d 443, 448 (7th Cir. 1992). An ALJ must evaluate
the quality of medical opinions by considering “the qualifications
of the experts, the opinions’ reasoning, their reliance on
objectively determinable symptoms and established science, their
detail of analysis, and their freedom from irrelevant distractions
and prejudices.” Underwood v. Elkay Mining, Inc., 105 F.3d 946,
951 (4th Cir. 1997).
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) pneumoconiosis is a contributing cause to his
total respiratory disability.” Milburn 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 - .306 (2006); or (4) medical opinion
evidence. See 20 C.F.R. § 718.202(a) (2006). In this case, there
is no autopsy or biopsy evidence, and the presumptions of
§§ 718.304 - .306 do not apply because there is no evidence that
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Groves suffered from complicated pneumoconiosis, the claim in
question was filed after January 1, 1982, and this is a living
miner claim.
Employer first argues that the ALJ erred in determining
that Groves suffered from pneumoconiosis. Specifically, employer
asserts that the ALJ erred by applying a “later is better evidence”
rule and vestiges of the true doubt rule to conclude that the x-ray
evidence established the existence of pneumoconiosis. Employer
also argues that the ALJ failed to properly consider CT scan
evidence, and erred in her consideration of the physicians’
opinions. The ALJ considered ten readings of three different x-
rays. She found that the earliest x-ray, taken on May 16, 1995,
was negative, that the readings of the December 19, 2002, x-ray
were in equipoise, but that the positive readings of the May 28,
2003, x-ray slightly outweighed the negative readings of that x-
ray. The ALJ concluded that, because the most recent x-ray was
positive and the next most recent was in equipoise, the
preponderance of the x-ray evidence established the existence of
the disease.
Our review convinces us that the ALJ’s conclusion is
supported by substantial evidence. Contrary to employer’s
arguments, the ALJ did not misapply the “later is better” evidence
rule criticized by this court in Adkins v. Dir., Office of Workers’
Comp. Programs, 958 F.2d 49 (4th Cir. 1992). Rather, her analysis
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is consistent with the progressive nature of the disease. E.
Assoc. Coal Corp. v. Dir. Office of Workers’ Comp. Programs, 220
F.3d 250, 258-59 (4th Cir. 2000). Although the two most recent x-
rays are separated by only six months, the ALJ correctly noted that
the positive readings by dually-qualified readers slightly
outnumbered the negative readings by dually-qualified readers.
Contrary to employer’s argument, all B readers are not considered
equal, as readings by those B readers who are also board-certified
radiologists are entitled to greater weight. 20 C.F.R.
§ 718.202(a)(1) (2007). Employer’s argument amounts to a request
that this court reweigh the x-ray evidence, and is without merit
Employer also asserts that the ALJ erred in failing to
weigh all relevant evidence, as required by this court’s decision
in Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000).
Employer contends the ALJ failed to adequately consider the
negative readings of two CT scans. We agree. The ALJ gave reduced
weight to the CT scans because the record did not document how
those negative readings compared with the positive x-ray
interpretations. This analysis is not supported by substantial
evidence. The record includes, in addition to the interpretations
of the CT scans, comments by Doctors Wiot and Zaldivar regarding
the value of CT scans in diagnosing pneumoconiosis. In his
deposition, Dr. Crisalli disputed Dr. Rasmussen’s characterization
of the x-ray evidence as mixed based on the negative CT scans,
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which offset the positive x-ray readings. Contrary to the ALJ’s
statement, the comments of Doctors Wiot, Zaldivar, and Crisalli
demonstrate that the CT scans are at least equivalent to a chest x-
ray as a diagnostic tool, and logically lead to the conclusion that
the negative CT scans directly contradict the positive x-ray
readings. Because the ALJ erred in her analysis of the CT scans,
we conclude that her conclusion that Groves suffered from
pneumoconiosis is not supported by substantial evidence.
The ALJ also based her weighing and crediting of the
various physicians’ opinions on whether they agreed or disagreed
with her conclusion that the x-ray evidence was sufficient to
establish the existence of pneumoconiosis. The ALJ’s error in
evaluating the CT scan evidence undermines her evaluation of the
physicians’ opinions, particularly those of Doctors Zaldivar and
Crisalli. The ALJ also found Dr. Rasmussen’s opinion worthy of
greatest weight, but did not explain why she credited his opinion
over the opinions of Doctors Zaldivar and Crisalli who possess
greater medical qualifications in the area of pulmonary disease.
Moreover, Dr. Rasmussen relied heavily on the positive x-ray
readings, which the other doctors characterized as questionable in
light of the CT scan readings.
The ALJ discredited Dr. Zaldivar’s opinion because he
opined that the negative chest x-rays indicate that Groves had
inhaled an insufficient amount of coal dust to have caused any
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damage. The ALJ concluded that this statement was inconsistent
with the regulatory provision that a claim shall not be denied
based solely on a negative x-ray. See 20 C.F.R. § 718.202(b)
(2006). We conclude that this analysis is not supported by
substantial evidence, but amounts to the ALJ substituting her
opinion for that of a medical expert. Dr. Zaldivar did not opine
that pneumoconiosis can never be diagnosed without a positive x-ray
reading, but stated that in this case Groves’s x-ray did not
exhibit any signs that he had inhaled sufficient dust to cause any
damage to his lungs to explain the pulmonary symptoms he exhibited.
The ALJ also discredited Dr. Zaldivar’s opinion because
he “testified that he is of the opinion that chronic obstructive
pulmonary disease is not caused by coal mine dust exposure.” This
finding is also not supported by substantial evidence, but results
from a selective reading of Dr. Zaldivar’s deposition. The portion
of Dr. Zaldivar’s deposition testimony cited by the ALJ occurred
during cross-examination by Groves’s counsel concerning Dr.
Zaldivar’s comments regarding various medical studies, including
studies that he authored. Dr. Zaldivar’s comments were expressed
in the context of a discussion of the results of medical studies he
either reviewed or personally conducted. Moreover, Dr. Zaldivar
did not opine that coal mine dust exposure cannot cause an
obstructive impairment; rather, the results of his study indicated
that such an impairment in coal miners occurred when the miners
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were cigarette smokers. These statements are not a valid basis for
discrediting Dr. Zaldivar’s opinion.
The ALJ also discredited the opinion of Dr. Crisalli
because he failed to explain why he eliminated coal mine dust
exposure as a cause of Groves’s respiratory impairment. Dr.
Crisalli attributed Groves’s impairment to bullous emphysema caused
by his lengthy smoking history, and concluded that “[i]n this
particular case with this extent of bullous emphysema and all that
air trapping, that would further support that tobacco smoke is, not
only a major component, it is the only component.” Our review of
Dr. Crisalli’s written report and deposition testimony lead us to
conclude that he ruled out coal dust exposure as the cause for
Groves’s respiratory impairment because the objective evidence
overwhelmingly supported a diagnosis of bullous emphysema, which he
testified he had never seen in miners who had not smoked. The ALJ
erred in discrediting Dr. Crisalli’s opinion.
Employer also argues that the ALJ erred in her evaluation
of the medical opinion of Dr. Jarvis, Groves’s treating physician.
The BRB agreed with this argument, but held that the ALJ’s error
was harmless because the ALJ relied on the opinion of Dr. Rasmussen
to conclude that Groves suffered from legal pneumoconiosis. In
light of the ALJ’s error in evaluating the CT scans and medical
opinions, we conclude that the error in weighing Dr. Jarvis’s
opinion is not harmless. Because the errors of the ALJ in
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evaluating the evidence regarding the existence of pneumoconiosis
require a remand for reconsideration, we do not address employer’s
assertions of error in the ALJ’s conclusions regarding the cause of
Groves’s respiratory disability.
Employer’s final argument is that the ALJ erred in
excluding several proffered exhibits because they exceeded the
limitations at 20 C.F.R. § 725.414(a). Employer does not assert
that the ALJ erroneously interpreted the limitations in the
regulation, but argues the regulation is inconsistent with the
Black Lung Benefits Act, the Administrative Procedure Act, and this
court’s precedent. This argument is foreclosed by this court’s
decision in Elm Grove Coal Co. v. Dir., Office of Workers’ Comp.
Programs, 480 F.3d 278 (4th Cir. 2007).
Accordingly, we vacate the award of benefits and remand
for reconsideration. 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
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