UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1953
CONSOLIDATION COAL COMPANY,
Petitioner,
versus
VIOLA M. NECESSARY, widow of Alvin H.
Necessary, deceased; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-223-BLA)
Argued: December 5, 2007 Decided: April 7, 2008
Before MICHAEL and GREGORY, Circuit Judges, and John Preston
BAILEY, Chief United States District Judge for the Northern
District of West Virginia, sitting by designation.
Petition denied by unpublished per curiam opinion.
ARGUED: Kathy Lynn Snyder, JACKSON & KELLY, P.L.L.C., Morgantown,
West Virginia, for Petitioner. Frederick K. Muth, HENSLEY, MUTH,
GARTON & HAYES, Bluefield, West Virginia; Barry H. Joyner, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondents. ON
BRIEF: Douglas A. Smoot, JACKSON & KELLY, P.L.L.C., Morgantown,
West Virginia, for Petitioner. Jonathan L. Snare, Acting Solicitor
of Labor, Patricia M. Nece, Counsel for Appellate Litigation,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Federal
Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Consolidation Coal Company (Consol) petitions for review
of an order of the Department of Labor’s Benefits Review Board
(BRB) affirming the decision of an administrative law judge (ALJ)
to award survivor’s black lung benefits to Viola Necessary (Mrs.
Necessary), the widow of Alvin Necessary (Mr. Necessary). Consol
argues that the ALJ erred by (1) crediting the opinion of the
pathologist who conducted the autopsy and (2) misapplying the Black
Lung Benefit Act’s evidence-limiting regulations. We affirm
because we conclude that (1) the ALJ’s benefits determination was
supported by substantial evidence in the record and (2) Consol
waived its arguments about the application of the regulations by
failing to raise them before the BRB.
I.
Mr. Necessary worked as a coal miner for twenty-four
years. During his lifetime he submitted three claims under the
Black Lung Benefits Act, 30 U.S.C. §§ 901-944 (the Act), each of
which was denied. Mr. Necessary died on February 3, 2001, at age
eighty. Eduardo T. Tolosa, M.D., Mr. Necessary’s treating
physician, completed his death certificate, identifying the cause
of death as acute bronchopneumonia as a consequence of coal
workers’ pneumoconiosis and emphysema. Mr. Necessary’s widow
3
submitted a timely application for survivor’s benefits under the
Act.
At the hearing before the ALJ, the parties stipulated
that Mr. Necessary suffered from coal workers’ pneumoconiosis
caused by coal mine employment and that Consol was the responsible
coal operator. The parties agreed that the remaining issue was
whether coal workers’ pneumoconiosis caused or hastened Mr.
Necessary’s death. During the hearing the ALJ allowed all of the
evidence from Mr. Necessary’s lifetime black lung claims to be
included in the record with no objection from either party. The
ALJ then excluded certain documentary evidence offered by Consol,
including two of its three reviews of autopsy tissue slides, as
exceeding the evidentiary limitations imposed by 20 C.F.R.
§ 725.414.
After reviewing the evidence, the ALJ determined that Mr.
Necessary’s death was hastened by his pneumoconiosis and awarded
Mrs. Necessary survivor’s benefits. In reaching this conclusion
the ALJ relied primarily on the opinion of Alex P. Racadag, M.D.,
the board certified pathologist who conducted an autopsy of Mr.
Necessary’s lungs. The ALJ also found support in Dr. Tolosa’s
deposition testimony, introduced into evidence by Consol. The ALJ
rejected other evidence offered by Consol, including the opinion of
Stephen T. Bush, M.D., who examined the autopsy slides and
4
concluded that pneumoconiosis had not hastened Mr. Necessary’s
death.
Consol appealed the decision to the BRB, arguing that (1)
the evidence-limiting regulations were invalid, or, alternatively,
Consol’s excluded evidence should have been admitted under the good
cause exception in the regulations, 20 C.F.R. § 725.956(b)(1), and
(2) the award was not supported because Dr. Racadag’s opinion was
equivocal and the ALJ automatically credited his opinion because he
was the autopsy prosector. The BRB rejected Consol’s evidentiary
arguments, but it remanded to the ALJ with instructions to provide
a more detailed explanation of his decision to credit the opinion
of Dr. Racadag. On remand the ALJ issued a new opinion further
explaining his rationale for crediting Dr. Racadag, and upon a
second appeal the BRB affirmed in a two to one vote. Consol then
petitioned to this court for review. The Director of the Office of
Workers’ Compensation Programs (the Director) and Mrs. Necessary
responded.
II.
To qualify for benefits under the Act, Mrs. Necessary
must demonstrate that (1) Mr. Necessary suffered from
pneumoconiosis, (2) the pneumoconiosis arose from coal mine
employment, and (3) the pneumoconiosis was a “substantially
contributing cause or factor leading to” his death. 20 C.F.R.
5
§ 718.205; see also Bill Branch Coal Corp. v. Sparks, 213 F.3d 186,
190 (4th Cir. 2000). A “substantially contributing cause” is
defined as a condition hastening the miner’s death. 20 C.F.R.
§ 718.205(c)(5). The claimant must prove each of these elements by
a preponderance of the evidence. Piney Mountain Coal Co. v. Mays,
176 F.3d 753, 757 (4th Cir. 1999) (citing 5 U.S.C. § 556(d)).
In making factual determinations, “the ALJ must explain
which evidence is relevant and why he credited the evidence he
did.” Perry v. Mynu Coals, Inc., 469 F.3d 360, 363 (4th Cir. 2006)
(citing Island Creek Coal Co. v. Compton, 211 F.3d 203, 208-09 (4th
Cir. 2000) and Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,
439 (4th Cir. 1997)). We must uphold the ALJ’s factual
determinations if they are supported by substantial evidence in the
record. Id. Substantial evidence is of “sufficient quality and
quantity ‘as a reasonable mind might accept as adequate to support’
the finding under review.” Piney Mountain Coal Co., 176 F.3d at
756 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We
review legal conclusions de novo. Perry, 469 F.3d at 363.
Consol raises two arguments on appeal. First, it argues
that the ALJ erred in crediting Dr. Racadag’s opinion. Second,
Consol contends that the ALJ erred in his application of the Act’s
evidence-limiting regulations. We discuss these contentions in
turn.
6
III.
A.
Consol first argues that the ALJ erred in crediting Dr.
Racadag’s opinion because the opinion was unreasoned and equivocal.
Consol relies on our decision in United States Steel Mining Co. v.
Director, Office of Workers’ Compensation Programs, 187 F.3d 384
(4th Cir. 1999). In that case the ALJ awarded survivor’s benefits
based on a doctor’s statement that “‘[i]t is possible that death
could have occurred as a consequence of [the miner’s] pneumonia
superimposed upon his . . . pneumoconiosis.’” Id. at 387. In his
report the doctor admitted that he did not have any information
concerning the circumstances of the miner’s death. Id. at 390. We
held that, given the “total absence of any medical evidence”
linking the miner’s pneumoconiosis with his death, the doctor’s
opinion was pure speculation and could not support the ALJ’s award.
Id. at 391.
While a doctor’s opinion must rely on medical evidence,
we also recognize that a doctor is under no obligation to parse
words. Medical judgments regarding cause of death will often
involve some degree of uncertainty, and it is proper -- and
commendable -- for a doctor to be candid about this reality. Thus,
in Piney Mountain Coal Co. v. Mays we affirmed an award of benefits
despite the doctor’s use of the conditional “could” in rendering
his opinion. 176 F.3d at 763-64. Like in U.S. Steel we recognized
7
that the doctor’s specific statements could not be viewed in
isolation, but instead must be understood in the context of the
information known to him and in light of his full report. Piney
Mountain Coal Co., 176 F.3d at 763. Similarly, in Perry v. Mynu
Coals, Inc. we held that an ALJ erred by summarily dismissing a
doctor’s opinion because the doctor admitted that he was not “one-
hundred percent sure” of his conclusion. 469 F.3d at 365-66. We
noted that “refusal to express a diagnosis in categorical terms is
candor, not equivocation, and we are of opinion that it enhances
rather than undermines [the doctor’s] credibility.” Id. at 366.
Mrs. Necessary submitted two items of evidence from Dr.
Racadag. First, she introduced his autopsy report, which described
the autopsy procedure, his observations, and his conclusion that
coal worker’s pneumoconiosis and other conditions contributed to
Mr. Necessary’s morbidity and demise. Second, she introduced Dr.
Racadag’s deposition testimony. Dr. Racadag testified that Mr.
Necessary had a “moderate” degree of simple coal workers’
pneumoconiosis with micronodules, which contributed to his death.
J.A. 197. During Dr. Racadag’s deposition the following exchange
took place:
Q: So in this case, when you say the coal workers’
pneumoconiosis contributed to his death, I mean, are you
speculating that?
A: Yes. It’s a speculation. That’s why I said
“probably contributed,” because I believe there is no 100
percent in medicine. . . . I think it’s an interplay of
several factors, rather than just one.
8
J.A. 210-11. Shortly thereafter Dr. Racadag affirmed that he had
been providing answers to “a reasonable degree of medical and
scientific certainty.” J.A. 212.
The ALJ’s decision to credit Dr. Racadag’s statements is
one that we review under the “substantial evidence” standard.
Piney Mountain Coal Co., 176 F.3d at 764. When we consider the
ambiguous statements highlighted by Consol in the context of Dr.
Racadag’s entire report and testimony, we are not persuaded that
“no ‘reasonable mind’ could have interpreted and credited the
doctor’s opinion as the ALJ did.” Id. Instead, as the ALJ found,
Dr. Racadag relied on his experience and his gross and microscopic
observations of the lungs in reaching his conclusion.
Dr. Racadag weighed the lungs, noting that the right lung
weighed 50 grams more than the left. He noted brown to black
coloration with black-gray mottling and black hilar lymph nodes
measuring up to one centimeter. Dr. Racadag also noticed pleural
adhesions, meaning that “some areas of the lung surface were
plastered against the thoracic wall.” J.A. 194. In his
microscopic examination, he described various “aggregates of black
pigmented macrophages some of which [were] associated with
fibrocollagenous reaction,” coal nodules with obvious fibrosis,
emphysematous changes, thickening of tissues, and scattered
inflamation. J.A. 157. In his deposition testimony Dr. Racadag
explained how these observations led him to his conclusions.
9
As the ALJ also noted, Dr. Racadag clarified that he was
giving his opinion to a reasonable degree of medical certainty.
Like in Perry, where the doctor also refused to state that he was
one-hundred percent certain, Dr. Racadag’s admission of the
uncertainty inherent in medical evaluation could certainly be
interpreted as a testament to his candor rather than a lack of
conviction, and it was well within the ALJ’s discretion to credit
his opinion.
B.
Consol also argues that the ALJ “mechanically credited
Dr. Racadag’s opinion because his role as a prosector allowed him
to view the lungs.” Pet’r’s Br. 18. This challenge is limited to
the ALJ’s decision to credit Dr. Racadag’s opinion that
pneumoconiosis affected ten to twenty percent of Mr. Necessary’s
lungs, rather than Dr. Bush’s opinion that pneumoconiosis affected
only five percent of the lungs at the time of death. While this is
a close case, we affirm the ALJ’s decision because his opinion was
carefully reasoned and based on evidence in the record.
We have held that an ALJ may not automatically credit the
opinions of an autopsy prosector solely because he “was the only
physician to examine the whole body near the time of death.” Bill
Branch Coal Corp., 213 F.3d at 192. We have counseled caution in
this area because automatic crediting of the autopsy prosector in
every case would foreclose an opposing party from the opportunity
10
to present its evidence. Our holding in Bill Branch follows the
uncontroversial rule that an ALJ’s opinion must be reasoned and
supported by the record. Id. at 190. In keeping with this rule,
we have also recognized that the ALJ may credit the autopsy
prosector’s opinion when such crediting is supported by the record
and adequately explained. See Perry, 469 F.3d at 366; Bill Branch
Coal Corp., 213 F.3d at 192 n.6. In a given case, for example, the
evidence may allow the ALJ to determine that the autopsy
prosector’s ability to conduct a gross examination of the miner’s
lungs places the prosector in a better position to assess the
extent to which the lung tissue had been affected by
pneumoconiosis.
In this case the ALJ restated the rule in Bill Branch and
noted that he was required to resolve the dispute created by Dr.
Bush’s and Dr. Racadag’s conflicting interpretations of the lungs’
impairment. The ALJ then determined that Dr. Racadag had a better
opportunity to assess the limited issue in the case -- the total
extent of pneumoconiosis in the lung -- because he was able to view
the gross anatomy of the lung and see the actual effects of the
disease, as well as examine the lung tissue microscopically. Dr.
Bush, on the other hand, only examined slides comprised of samples
taken from the lungs and did not examine the lung as a whole. In
reaching his conclusion, the ALJ relied on Dr. Racadag’s testimony
that the opportunity to conduct a gross examination as well as a
11
microscopic examination better enabled him to understand the extent
of the disease. The ALJ did not rely solely on Dr. Racadag’s role
as autopsy prosector; he also carefully considered the credibility
of Dr. Bush’s competing evaluation and concluded that it was
insufficiently documented and reasoned. As the ALJ noted, Dr. Bush
failed to explain the scientific basis for his determination that
the extent of pneumoconiosis was insufficient to hasten death, but
instead seemed to apply “a mechanical standard.” J.A. 372.
The ALJ’s decision to credit Dr. Racadag’s assessment of
the extent of Mr. Necessary’s pneumoconiosis over Dr. Bush’s
assessment was reasoned and supported by the evidence. The ALJ was
required to resolve the dispute created by the contradictory
medical opinions, and he evaluated the record to determine which
opinion was best supported by the evidence. Dr. Racadag testified
extensively about how his gross examination of the lungs aided him
in reaching his conclusions. In contrast, Dr. Bush made conclusory
statements that pneumoconiosis did not hasten Mr. Necessary’s
death. While this is a close case, as we have said, we may not
replace the ALJ’s assessments with our own.
We conclude that the ALJ’s decision to credit Dr.
Racadag’s opinion was supported by the evidence, and his opinion
supports the award of survivor’s benefits to Mrs. Necessary.
12
IV.
Consol also raises two challenges to the ALJ’s
evidentiary rulings. For the reasons discussed below, we agree
with the Director that Consol has waived these arguments because it
failed to raise them before the BRB.
A.
Consol first argues that the ALJ erred by considering
evidence from Mr. Necessary’s three lifetime claims. Consol relies
on a recent BRB decision holding that under 20 C.F.R. § 725.309(d)
evidence from the living miner’s claims should not be automatically
included in the record for a survivor’s claim. Keener v. Peerless
Eagle Coal Co., BRB No. 05-1008 BLA, 2007 WL 1644032, at *5-*6
(Jan. 26, 2007). When the case was before the BRB, Consol argued
that the ALJ erred by failing to consider the miner’s lifetime
evidence -- an argument opposite to the one it raises today.
Consol acknowledges that it did not argue to the BRB that the
lifetime claims evidence should have been excluded, but it contends
that the Keener decision created new law that should change the
outcome in this case. We disagree. Keener did not create new law;
instead, it interpreted a regulation that was in existence when the
case was before the BRB. See Betty B Coal Co. v. Dir., Office of
Workers’ Comp. Programs, 194 F.3d 491, 501 (4th Cir. 1999). Consol
thus had the opportunity to argue to the BRB that the ALJ erred by
considering the lifetime claims evidence. Instead, it choose to
13
advance the opposite argument. Because the argument Consol raises
now was not raised before the BRB, and the BRB did not have an
opportunity to consider it, we decline to consider it here.
See Armco, Inc. v. Martin, 277 F.3d 468, 476 (4th Cir. 2002).
B.
Consol also contends that the ALJ improperly excluded its
autopsy rebuttal evidence under 20 C.F.R. § 725.414(a)(3). Again,
Consol relies on recent court decisions in support of its argument.
See Elm Grove Coal Co. v. Dir., Office of Workers’ Comp. Programs,
480 F.3d 278, 297-99 (4th Cir. 2007); Keener, 2007 WL 1644032, at
*2-*4. Again, we conclude that Consol failed to make this argument
before the BRB and has therefore waived it.
In its first appeal to the BRB, Consol challenged the
ALJ’s application of the evidence-limiting regulations with respect
to the exclusion of several of its proffered items of evidence. At
that time Consol made two related arguments. First, Consol argued
that the evidence-limiting regulations were invalid under the Act,
the Administrative Procedures Act, and Supreme Court and Fourth
Circuit precedent. Second, Consol argued that the evidence was
relevant and probative, and thus should be admitted under the good
cause exception to the regulations, 20 C.F.R. § 725.456(b)(1). The
BRB rejected each of these arguments.
Before this court, Consol puts forth an alternative
argument for the first time, contending that the evidence should
14
have been admitted as rebuttal evidence under the evidence-limiting
regulations. Consol cites Keener’s holding that, under
§ 725.414(a)(3), the responsible operator may submit an autopsy
slide review as its affirmative evidence and also, in rebuttal, an
additional report interpreting the claimant’s autopsy report. 2007
WL 1644032, at *2-*4. Consol argues that Dr. Bush’s report should
have been admitted as its affirmative evidence and that Dr.
Oesterling’s report, which analyzed Mr. Necessary’s medical reports
and his autopsy slides, should have been admitted as its rebuttal
evidence. Consol concedes that it did not challenge the ALJ’s
application of § 725.414 before the BRB, but it contends that its
two arguments before the BRB somehow encompass its argument on
appeal. In essence, Consol argues that because our decision in Elm
Grove Coal Co. forecloses Consol’s challenges to the validity of
the regulations, it is now entitled to advance an alternative
argument regarding the application of those regulations.
While Consol did challenge the exclusion of Dr.
Oesterling’s report (and those of several other doctors) before the
BRB, it did so under substantively different arguments than the one
it raises before this court. The BRB carefully considered Consol’s
arguments under several federal statutes and the good cause
exception. But the BRB had no opportunity to consider Consol’s
contention here that the ALJ made a legal error in his application
of § 725.414(a)(3). It was Consol’s deliberate choice to focus on
15
the validity and breadth of the regulations, rather than raise the
alternative argument that the ALJ misapplied the evidence-limiting
regulation. As a result, we will not consider the argument that
Consol chose not to make before the BRB. See Armco, Inc., 277 F.3d
at 476.
* * *
For the foregoing reasons, Consol’s petition for review
is denied.
PETITION DENIED
16