UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1191
WESTMORELAND COAL COMPANY, INCORPORATED,
Petitioner,
v.
JOHNNY FORTNER; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(12-0163-BLA)
Submitted: July 29, 2013 Decided: August 14, 2013
Before MOTZ, KEENAN, and DIAZ, Circuit Judges.
Petition granted; vacated and remanded by unpublished per curiam
opinion.
Paul E. Frampton, Thomas M. Hancock, BOWLES RICE LLP,
Charleston, West Virginia, for Petitioner. Joseph E. Wolfe,
Ryan C. Gilligan, WOLFE, WILLIAMS, RUTHERFORD & REYNOLDS,
Norton, Virginia, for Respondent Johnny Fortner.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Westmoreland Coal Company (“Employer”) petitions for
review of the Benefits Review Board’s (“Board”) decision and
order affirming the Administrative Law Judge’s (“ALJ”) award of
benefits to Johnny Fortner under the Black Lung Benefits Act, 30
U.S.C. §§ 901-945 (West 2007 & Supp. 2013). We grant the
petition for review, vacate the Board’s decision, and remand for
further proceedings. 1
We review the Board’s and the ALJ’s legal conclusions
de novo and “independent[ly] review . . . the record to
determine whether the ALJ’s findings of fact were supported by
substantial evidence.” Island Creek Coal Co. v. Compton, 211
F.3d 203, 207-08 (4th Cir. 2000) (internal quotation marks
omitted). “‘Substantial evidence is more than a mere
scintilla’; it is ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id.
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
In conducting this review, we confine ourselves to the grounds
1
Upon review of the record, we conclude that we have
jurisdiction over Employer’s petition for review. See 33 U.S.C.
§ 921(c) (2006); 30 U.S.C. § 932(a); Consolidation Coal Co. v.
Chubb, 741 F.2d 968, 971 (7th Cir. 1984); see Hon v. Dir.,
Office of Workers’ Comp. Programs, 699 F.2d 441, 444 (8th Cir.
1983).
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on which the Board based its decision. Daniels Co. v. Mitchell,
479 F.3d 321, 329 (4th Cir. 2007).
Subject to the substantial evidence requirement, we
defer to the ALJ’s credibility determinations and “evaluation of
the proper weight to accord conflicting medical opinions.”
Harman Mining Co. v. Dir., Office of Workers’ Comp. Programs,
678 F.3d 305, 310 (4th Cir. 2012). The ALJ is not bound to
accept any medical expert opinion but “must evaluate the
evidence, weigh it, and draw his own conclusions,” giving
consideration to “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, 949, 951 (4th
Cir. 1997), superseded on other grounds as stated in Elm Grove
Coal Co. v. Dir., Office of Workers’ Comp. Programs, 480 F.3d
278, 287 (4th Cir. 2007).
Because this is a subsequent claim, Fortner was
required to first demonstrate a change in “one of the applicable
conditions of entitlement” since the last denial of benefits.
20 C.F.R. § 725.309(d) (2013); see Milburn Colliery Co. v.
Hicks, 138 F.3d 524, 529 (4th Cir. 1998) (enumerating conditions
of entitlement); 20 C.F.R. §§ 718.201 to 204 (2013) (same). The
ALJ had most recently denied Fortner benefits after finding that
3
he failed to demonstrate that he suffered from a totally
disabling respiratory or pulmonary condition.
A miner may prove that he is totally disabled due to a
respiratory or pulmonary condition in one of four ways, only two
of which are relevant here: qualifying arterial blood gas
studies and well-documented and well-reasoned physician’s
opinions. 2 20 C.F.R. § 718.204(b)(2)(ii), (iv). “The miner can
establish total disability upon a mere showing of evidence that
satisfies any one of the four alternative methods, but only
‘[i]n the absence of contrary probative evidence.’” Lane v.
Union Carbide Corp., 105 F.3d 166, 171 (4th Cir. 1997) (quoting
language now codified in 20 C.F.R. § 718.204(b)(2)). Thus, if
the ALJ finds that the miner has met his burden with evidence
under one of the § 718.204(b)(2) prongs, the ALJ must examine
the record for contrary probative evidence and, if there is such
contrary evidence, assign it “appropriate weight and determine
whether it outweighs the evidence that supports a finding of
total disability.” Id.
After considering the newly-submitted evidence, the
ALJ concluded that Fortner demonstrated that he suffered from a
2
Fortner did not present evidence of qualifying pulmonary
function tests or demonstrate that he suffers from cor
pulmonale, the other two methods of establishing total
disability. See 20 C.F.R. § 718.204(b)(2)(i), (iii).
4
totally disabling respiratory condition based on the results of
the arterial blood gas studies and the medical opinions, and
that there was no probative contrary evidence in the record.
Thus, the ALJ allowed the subsequent claim to proceed.
In the petition for review, Employer does not dispute
the ALJ’s conclusion that the newly-submitted arterial blood gas
studies qualified Fortner as totally disabled due to a
respiratory impairment. However, Employer contends that the ALJ
erred by rejecting Dr. Kirk Hippensteel’s opinion when
evaluating the medical opinions related to total disability,
because the ALJ failed to explain his reasons for discrediting
the physician and engaged in “head counting.”
We agree with Employer’s contention. As Employer
noted, we have rejected the practice of “counting heads” as
“hollow.” Adkins v. Dir., Office of Workers’ Comp. Programs,
958 F.2d 49, 52 (4th Cir. 1992); accord Sterling Smokeless Coal
Co. v. Akers, 131 F.3d 438, 440-41 (4th Cir. 1997) (finding that
ALJ erred “[b]y resolving the conflict of medical opinion solely
on the basis of the number of physicians supporting the
respective parties”); Sahara Coal Co. v. Fitts, 39 F.3d 781,
782-83 (7th Cir. 1994) (vacating and remanding decision of ALJ
that appeared to be based upon numerical count of experts).
This is precisely what the ALJ did in this case. While finding
that each of the physicians’ opinions was probative, well-
5
reasoned, and well-documented, and that each physician was a
well-qualified pulmonologist, the ALJ simply decided that the
“consensus” of Fortner’s two physicians outweighed Dr.
Hippensteel’s opinion, without further explanation. See Milburn
Colliery Co., 138 F.3d at 534 (finding that ALJ erred by failing
to explain rejection of evidence of miner’s other medical
conditions as cause of total disability). Thus, the Board’s
order affirming the ALJ’s decision that Fortner was totally
disabled due to a respiratory condition as supported by
substantial evidence cannot stand.
Because we have concluded that the ALJ improperly
discredited Dr. Hippensteel’s opinion on the grounds that he was
outnumbered, we also conclude that substantial evidence does not
support his conclusion that Fortner established that he suffered
from a totally disabling respiratory condition. See 20 C.F.R.
§ 718.204(b)(2); Lane, 105 F.3d at 171. Thus, the ALJ erred in
finding that Fortner demonstrated a change in applicable
condition of entitlement, as required by § 725.309(d), and
allowing the subsequent claim to proceed.
Accordingly, we grant Employer’s petition for review,
vacate the Board’s order affirming the ALJ’s award of benefits,
and remand to the Board for further proceedings consistent with
this opinion. On remand, the ALJ certainly may reach the same
conclusion after properly weighing the evidence; however, he
6
must fully explain that decision in accordance with the
substantial evidence standard. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
PETITION GRANTED;
VACATED AND REMANDED
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