Gunderson v. United States Department of Labor

FILED
United States Court of Appeals
Tenth Circuit

April 8, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TERRY GUNDERSON,

Petitioner,

v. No. 08-9537
UNITED STATES DEPARTMENT
OF LABOR,

Respondent.
____________________

BLUE MOUNTAIN ENERGY;
OLD REPUBLIC INSURANCE
COMPANY,

Intervenors.

ON PETITION FOR REVIEW OF THE BENEFITS REVIEW BOARD
UNITED STATES DEPARTMENT OF LABOR
(No. 07-0619 BLA)

Thomas E. Johnson (Anne Megan Davis, with him on the briefs), Johnson, Jones,
Snelling, Gilbert & Davis, P.C., Chicago, IL, for Petitioner-Appellant.

Laura Metcoff Klaus (Mark E. Solomons with her on the brief), Greenberg
Traurig LLP, Washington, D.C., for the Intervenors.
Before HENRY, Chief Judge, O’BRIEN, Circuit Judge, and EAGAN, District
Judge. *

HENRY, Chief Judge.

During his thirty-year employment as a coal miner and foreman, the

petitioner, Terry Gunderson, was exposed to coal dust and developed chronic

obstructive pulmonary disease. In January 2001, Mr. Gunderson received a letter

from the National Institute for Occupational Safety and Health informing him that

an x-ray taken as part of a monitoring program indicated that he suffered from

pneumoconiosis, “a chronic dust disease of the lung and its sequelae, including

respiratory and pulmonary impairments, arising out of coal mine employment.”

30 U.S.C. § 902(b). Pneumoconiosis “encompasses a cruel set of conditions that

afflict a significant percentage of the nation’s coal miners with ‘severe, and

frequently crippling, chronic respiratory impairment.’” Nat’l Mining Ass’n v.

Dep’t of Labor, 292 F.3d 849, 854 (D.C. Cir. 2002) (quoting Usery v. Turner

Elkhorn Mining Co., 428 U.S. 1, 6 (1976)).

In response to this letter, Mr. Gunderson sought benefits from Blue

Mountain Energy, his longtime employer, under Title IV of the Federal Coal Mine

*
The Honorable Claire V. Eagan, United States District Judge for the
Northern District of Oklahoma, sitting by designation.

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Health and Safety Act of 1969, as amended, 30 U.S.C. §§ 901-45 (the “Black

Lung Benefits Act”). He alleged that he suffered from “clinical pneumoconiosis”

and “legal pneumoconiosis.” See 20 C.F.R. § 718.201 (discussing those two

diseases).

The District Director of the Office of Workers’ Compensation Programs

granted Mr. Gunderson’s claim for benefits, but Blue Mountain Energy appealed

that decision to an administrative law judge (“ALJ”). The ALJ heard conflicting

evidence: Mr. Gunderson’s doctors concluded that he suffered from

pneumoconiosis arising from coal dust exposure and that he was disabled because

of the disease, while doctors testifying on behalf of Blue Mountain Energy opined

that Mr. Gunderson’s respiratory problems were caused by chronic obstructive

pulmonary disease arising from his smoking habit.

After reviewing the evidence, the ALJ rejected Mr. Gunderson’s claims.

With regard to clinical pneumoconiosis, the ALJ found that the medical reports

did not support Mr. Gunderson’s contentions. As to legal pneumoconiosis, the

ALJ found that the doctors’ reports, while conflicting, were all “well-reasoned,”

“well- documented,” and “well-supported.” Rec., ALJ Materials, Dec. & Order,

filed March 21, 2007, at 22. In the ALJ’s view, both parties’ experts’ opinions

were entitled to equal weight. The ALJ therefore denied the claim on the ground

that Mr. Gunderson had not met his burden of proving that his chronic obstructive

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pulmonary disease was caused by his work as a coal miner. The Department of

Labor’s Benefits Review Board affirmed the ALJ’s decision.

In this appeal, Mr. Gunderson challenges only the ALJ’s ruling regarding

legal pneumoconiosis. He argues that the ALJ (1) failed to provide a sufficient

explanation of the decision to deny that claim; and (2) erred in excluding a letter

from the Director of the Division of Respiratory Disease Studies at the National

Institute of Occupational Health and Safety reporting that an x-ray was positive

for pneumoconiosis.

We agree with Mr. Gunderson that the case should be remanded for further

proceedings. The ALJ’s cursory statement that the evidence from both parties

was entitled to equal weight does not constitute a sufficient reason or basis for his

decision, as required by the Administrative Procedures Act, 5 U.S.C. §

557(c)(3)(A). However, we further conclude that the ALJ did not err in excluding

the Director’s letter.

I. BACKGROUND

Most of the relevant facts are not disputed. We begin with Mr.

Gunderson’s particular circumstances and then turn to the regulatory scheme

implementing the Black Lung Benefits Act and the proceedings in this case.

A. Mr. Gunderson’s employment and medical history

Mr. Gunderson worked more than thirty years in underground coal mines,

beginning in January 1965, when he accepted a position in Geneva, Utah. In

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1973, he became a superintendent of that mine, which required him to work

underground half of the time. In 1977, he moved to Colorado and worked as

director of operations at a mine there until 1981.

In the 1980s, Mr. Gunderson engaged in a variety of other activities. He

ran a retail business with his ex-wife, drove a truck, and did some warehouse

work.

Mr. Gunderson returned to coal mining in 1989, when he accepted a

position as a safety inspector with Blue Mountain Energy’s underground mine in

Rangely, Colorado. He was promoted to shift foreman and then to general

foreman, and he continued to work at that same mine until January 2004.

Throughout much of his career as a coal miner, Mr. Gunderson smoked cigarettes.

He began in 1962 and quit in 1996, consuming about a pack each day during that

period.

Blue Mountain Energy’s Rangely mine produced as much as two million

tons of coal each year. The company used continuous mining techniques,

including a longwall machine that would produce up to 2,500 tons of coal each

hour. At the evidentiary hearing, Mr. Gunderson explained that these mining

activities generated large amounts of coal dust. In his words, “[c]oal mining is a

dusty business. If you’re not eating coal dust, you’re blowing rock dust.” Rec.,

Tr. of May 18, 2006 Hr’g, at 34.

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 Mr. Gunderson reported that his work in the coal mine required extensive

physical activity. He sometimes walked 10 to 15 miles a day, often while

carrying up to ten pounds of equipment. He also had to lift 30 to 50 pound logs,

as well as 75 to 150 pound timbers, which were used to reinforce the roof.

Despite these physical demands, Mr. Gunderson reported little difficulty in

doing his coal mining work until the latter part of his career. He testified at the

evidentiary hearing that, by 2004, “I couldn’t keep up the pace. I was fatigued all

the time . . . . I could walk on level ground. I could even walk up some grades.

But by the end of the day, I was just so beat, I went home, I walked in the house

and flopped in my chair and didn’t get up till I went to bed.” Id. at 44. He

further stated that he now lacks the stamina he once had to do chores at home and

that, in attempting these tasks, he becomes short of breath. “I do a little bit and

then I go sit down and rest. . . . I just don’t have the stamina. Seems like I wear

out easy.” Id. at 46.

In the administrative proceedings, the parties introduced substantial

medical evidence, providing a detailed account of the onset of Mr. Gunderson’s

pulmonary disease. In particular, in April 1989, a report of Mr. Gunderson’s

regular physical examination described him as healthy except for mild,

nonspecific interstitial disease, which a radiologist noted on an x-ray. 1

1
“Interstitial . . . lung disease actually describes a group of disorders, most
of which cause progressive scarring of lung tissue. This eventually affects your
(continued...)

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Subsequent x-ray readings contained similar findings. In October 1994, a

radiologist read Mr. Gunderson’s x-ray as showing mild to moderate, nonspecific

interstitial disease. In June 1997, the same radiologist concluded that Mr.

Gunderson’s x-ray revealed chronic obstructive pulmonary disease and mild

nonspecific interstitial disease, as well as small areas of atelectasis, a condition in

which all or part of a lung becomes airless and collapses.

In July 1997, Mr. Gunderson had a lung scan, which showed a mild

deficiency in blood circulation in the upper part of the lungs. That same month,

he underwent a stress test on a treadmill, which showed no chest pain or

arrhythmia and indicated normal blood pressure. However, in 1998, a radiologist

at St. Mary’s Hospital read Mr. Gunderson’s x-ray and reported that “[t]he lungs

are hyperexpanded consistent with underlying emphysema. There is linear

scarring at the right lung base.” Rec. Employer’s Ex. 8, at 56.

In August 2000, Mr. Gunderson reported fatigue and shortness of breath to

a family practitioner, who diagnosed chronic obstructive pulmonary disease. That

same month, Mr. Gunderson submitted to an x-ray as part of a monitoring

program administered by the National Institute of Occupational Safety and

Health. In January 2001, he received a letter from Ronald Schell of the Mine

1
(...continued)
ability to breathe and get enough oxygen into your bloodstream. Beyond this, the
disorders vary greatly.” http://www.mayoclinic.com/health/interstitial-lung-
disease/DS00592.

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Safety Health Administration informing him that the August 2000 x-ray “[s]hows

you have enough coal workers’ pneumoconiosis (‘black lung’) to be eligible for

the ‘option to work in a low dust area’ of a mine.” Rec., Director’s Ex. 18.

In April 2001, Mr. Gunderson again reported fatigue to a treating

physician. In September 2001, a physician at the Western Colorado Lung Center

evaluated Mr. Gunderson and diagnosed “[s]imple coal workers’ pneumoconiosis”

and “probable mild chronic obstructive pulmonary disease” connected to his

“[h]istory of tobacco use.” Rec. Employer’s Ex. 6, at 4.

B. Statutory and Regulatory Background

The Black Lung Benefits Act, 30 U.S.C. §§ 901-45, defines

pneumoconiosis as “a chronic dust disease of the lung and its sequelae, including

respiratory and pulmonary impairments, arising out of coal mining employment.”

30 U.S.C. § 902(b). “It is caused by inhaling coal dust into the lungs over a long

period.” Energy West Mining Co. v. Oliver, 555 F.3d 1211, 1214 (10th Cir. 2009)

(internal quotation marks and citations omitted); see also Dorlands Illustrated

Medical Dictionary 1315 (28th ed. 1994) (defining pneumoconiosis as “a

condition characterized by permanent deposition of substantial amounts of

particulate matter in the lungs, usually of occupational or environmental origin,

and by the tissue reaction to its presence” and defining coal workers’

pneumoconiosis as “a form caused by deposition of large amounts of coal dust in

the lungs, typically characterized by centrilobular emphysema”). As coal

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workers’ pneumoconiosis advances, it may cause physical disability and

ultimately “may induce death by cardiac failure, and may contribute to other

causes of death.” Usery, 428 U.S. at 7. Congress enacted the Black Lung

Benefits Act to compensate coal miners who have become totally disabled due to

pneumoconiosis arising out of coal-mine employment. See 30 U.S.C. § 901(a).

“To obtain benefits under the [Black Lung Benefits Act], a miner must

demonstrate that he satisfies three conditions: (1) he or she suffers from

pneumoconiosis; (2) the pneumoconiosis arose out of coal mining employment;

and (3) the pneumoconiosis is totally disabling.” Energy West, 555 F.3d at 1214.

Black lung benefits are normally paid by a miner’s employer. Nat’l Mining Ass’n

v. Dep’t of Labor, 292 F.3d 849, 854 (D.C. Cir. 2002); see also 30 U.S.C. §§ 932,

934. If the employer cannot be identified, the claim is paid from the Black Lung

Disability Trust Fund administered by the government and financed by a tax on

coal. Nat’l Mining Ass’n, 292 F.3d at 854.

Although the Black Lung Benefits Act offers a general definition of

pneumoconiosis, see 30 U.S.C. § 902(b), the statute does not set forth the

standards to be used in determining whether a particular lung disease satisfies this

definition. However, pursuant to its authority to implement the Black Lung

Benefits Act, see id. § 936(a), the Department of Labor has promulgated

regulations interpreting § 902(b)’s definition of pneumoconiosis to encompass

two distinct types of compensable lung diseases: clinical pneumoconiosis and

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legal pneumoconiosis. See 20 C.F.R. § 718.201(a). This interpretation comports

with the approach that many circuits had previously followed. See Andersen v.

Dir., Office Of Workers’ Comp. Programs, 455 F.3d 1102, 1103 n.2 (10th Cir.

2006) (citing those cases).

According to the Department of Labor’s regulations, “clinical

pneumoconiosis” consists of those lung diseases the medical community refers to

as pneumoconiosis—“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 . . . .” 20 C.F.R. §

718.201(a)(1). These diseases include, for example, “coal workers’

pneumoconiosis, anthracosilicosis, anthracosis, anthrosilicosis, massive

pulmonary fibrosis, silicosis or silicotuberculosis, arising out of coal mine

employment.” Id.

In contrast, “legal pneumoconiosis” describes a broader class of lung

diseases that are not pneumoconiosis as the term is used by the medical

community. The term includes “any chronic lung disease or impairment and its

sequelae” including “any chronic restrictive or obstructive pulmonary disease

arising out of coal mine employment.” 20 C.F.R. § 718.201(a)(2). A chronic

restrictive or obstructive pulmonary disease arises out of coal-mine employment

if it is “significantly related to, or substantially aggravated by, dust exposure in

coal mine employment.” Id. § 718.202(b).

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 Under the Black Lung Benefits Act, the administrative process begins when

a miner or his or her survivor files a claim with the District Director of the

Department of Labor’s Office of Workers’ Compensation Programs. The District

Director investigates the claim, notifies the interested parties, and makes a

preliminary determination whether the claimant is eligible for benefits and

whether a particular mine employer should be held responsible. 20 C.F.R. §§

725.301 -.422; see also Nat’l Mining Ass’n, 292 F.3d at 854 (discussing the

benefits claims and appeals process).

After the District Director renders a decision, either party may appeal to an

ALJ and request a hearing. In turn, the ALJ’s decision may be appealed by either

party to the Department of Labor’s Benefits Review Board, and, ultimately, to the

United States Court of Appeals for the circuit in which the injury occurred. 33

U.S.C. § 921(c). The hearings and appeals are governed by the Administrative

Procedures Act, 5 U.S.C. §§ 500-706. See 33 U.S.C. § 919(d) (providing that

hearings on claims for compensation under the Longshore and Harbor Workers’

Compensation Act are governed by the Administrative Procedures Act provision

regarding adjudicatory hearings, 5 U.S.C. § 554); 30 U.S.C. § 932(a) (applying §

919(d) to claims for benefits under the Black Lung Benefits Act); 5 U.S.C. §§

556-557 (establishing requirements for considering evidence and issuing findings

that apply when adjudicatory hearings are required under § 554).

C. Mr. Gunderson’s Claim for Benefits and the Administrative
Proceedings

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 After he received the January 2001 letter reporting that his x-ray was

positive for pneumoconiosis, Mr. Gunderson filed a claim under the

Black Lung Benefits Act. The District Director granted his request, finding that

Mr. Gunderson suffered from pneumoconiosis, was totally disabled by it, and that

Blue Mountain Energy was the responsible operator.

Blue Mountain Energy then appealed to an ALJ and requested a formal

hearing. The parties presented conflicting evidence, including x-ray reports,

reports from physicians (some of whom examined Mr. Gunderson and some of

whom merely reviewed his treatment records), and a 1998 CT scan. Six x-ray

reports concluded that Mr. Gunderson had pneumoconiosis. Five x-ray reports

found no evidence of the disease, as did the report of the CT scan. Three

physicians (Drs. Mark Shockey, Robert Cohen, and John Parker) concluded that

Mr. Gunderson had pneumoconiosis, while two other physicians disagreed (Drs.

Lawrence Repsher and Joseph Renn).

After hearing this evidence, the ALJ issued a decision denying Mr.

Gunderson’s claim for benefits. The ALJ addressed both types of

pneumoconiosis described by Department of Labor regulations: clinical and legal

pneumoconiosis. See 20 C.F.R. § 718,201(a).

As to clinical pneumoconiosis, the ALJ concluded that the lack of a

definitive indication of “substantial amounts of particulate matter in the lungs and

the fibrotic reaction of the lung tissue to that deposition caused by dust exposure

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in coal mine employment,” 20 C.F.R. § 718.201, meant that Mr. Gunderson had

not established that he had that disease. The ALJ noted the disagreement among

the physicians who had reviewed the x-ray evidence and added that two of the

doctors who had found that Mr. Gunderson had suffered from pneumoconiosis

(Drs. Cohen and Shockey) had relied on inadmissible expert reports in reaching

their conclusions. Rec., ALJ Materials, Dec. & Order, filed March 21, 2007, at

20. “Given the x-ray evidence available to Dr. Cohen after discounting the

inadmissible reports, it seems unlikely that a finding of clinical pneumoconiosis

could be maintained.” Id.

As to legal pneumoconiosis, the ALJ found that there was “clearly a

difference of opinion among well-qualified physicians who have given detailed

statements in this case.” Rec., ALJ Materials, Dec. & Order, filed March 21,

2007, at 21. The ALJ assessed the conflicting evidence as follows:

All of the physicians are extremely qualified to discuss
[Mr. Gunderson’s] pulmonary problems. Except for Dr.
Shockey, who did not provide an extensive curriculum
vitae, all have had significant experience with internal and
pulmonary medicine, including the publication of articles
in this field, professional appointments in the field of
pulmonary medicine and teaching positions at local
universities. Further, all of their reports are well-reasoned
and well-documented. Moreover, despite the fact that Drs.
Renn and Cohen disagree as to the meaning of some of
[Mr. Gunderson’s] test results, their findings and reports
are each well-supported.
The undersigned finds that these reports are evenly
balanced, and should receive equal weight. As is noted
above, the Claimant bears the burden of establishing the
presence of pneumoconiosis by a preponderance of the

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 evidence. The Claimant has not proven that he has legal
pneumoconiosis.
Since the Claimant has not established the presence
of either clinical or legal pneumoconiosis, the criteria of
§ 718.202 (a)(4) 2 has not been met.

Id. at 22 (footnote omitted). The ALJ therefore denied Mr. Gunderson’s claim for

benefits.

In the course of his decision, the ALJ excluded a January 2001 letter from the

Director of the Division of Respiratory Disease Studies at the National Institute of

Occupational Health and Safety to the Chief of the Division of Health of the Mine

Safety Health Administration. The letter reported the results of a chest x-ray as

positive for pneumoconiosis. However, the referenced x-ray was not included in the

record.

2
That section provides:

A determination of the existence of pneumoconiosis may also be made
if a physician, exercising sound medical judgment, notwithstanding a
negative X-ray, finds that the miner suffers or suffered from
pneumoconiosis as defined in § 718.201. Any such finding shall be
based on objective medical evidence such as blood-gas studies,
electrocardiograms, pulmonary function studies, physical performance
tests, physical examination, and medical and work histories. Such a
finding shall be supported by a reasoned medical opinion.

20 C.F.R. § 718.202(a)(4).

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 In explaining his decision to exclude this letter, the ALJ invoked the

Department of Labor regulations that (1) limit the number of x-rays that each party

may submit and (2) require x-ray reports to contain specific information:

The results of this x-ray will not be considered since the
Claimant has already designated two x-ray determinations
in support of his affirmative case. Since the limitations set
forth in 20 C.F.R. § 725.414 (2003) are mandatory and
cannot be waived, CX10 cannot be considered. Moreover,
CX 10 fails to show the date the x-ray was taken, the date
the x-ray was read by a doctor, the quality of the x-ray
film, the name of the doctor who interpreted the x-ray, the
qualifications of the doctor who interpreted the x-ray, or
the type of opacities found. It therefore does not meet the
standards for x-rays set forth in 20 C.F.R. §§
718.202(a)(1); 718.102 (2002). 3
Id. at 7.

Mr. Gunderson filed an appeal of the ALJ’s decision with the Labor

Department’s Benefits Review Board. Among other arguments, he advanced the

two contentions that he now raises in this appeal. The Benefits Review Board

rejected both arguments, and affirmed the ALJ’s decision denying Mr.

Gunderson’s claim for benefits.

3
These provisions state in part that an x-ray report “shall specify the name
and qualifications of the person who took the film and the name and
qualifications of the physician interpreting the film. If the physician interpreting
the film is a Board-certified or Board-eligible radiologist or a certified ‘B’ reader
(see § 718.202), he or she shall so indicate.” 20 C.F.R. § 718.102(c).

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 II. DISCUSSION

Mr. Gunderson now argues that the ALJ (1) failed to provide a sufficient

explanation of his decision to deny the claim for benefits under the Black Lung

Benefits Act; and (2) erred in excluding the January 2001 letter from the Director

of the Division of Respiratory Disease Studies.

A. Standard of Review

Mr. Gunderson’s first argument raises a legal question that we review de

novo. See Stalcup v. Peabody Coal Co., 477 F.3d 482, 484-85 (7th Cir. 2007)

(examining de novo the question of whether an ALJ in a black lung case provided

an adequate explanation for the denial of benefits).

In contrast, in considering Mr. Gunderson’s second argument (which

challenges a decision to exclude evidence) we afford considerable deference to

the agency tribunal. In general, “the formulation of administrative procedures is a

matter left to the discretion of the administrative agency.” Laird v. ICC, 691 F.2d

147, 154 (3d Cir. 1982). This discretion includes the power to make reasonable,

nonarbitrary decisions regarding the admission or exclusion of evidence. See

Second Taxing Dist. of City of Norwalk v. FERC, 683 F.2d 477, 485 (D.C. Cir.

1982). Thus, “ALJs [generally] have broad authority over their hearings,” NLRB.

v. Jackson Hosp. Corp., 557 F.3d 301, 305 (6th Cir. 2009), and “[w]e review the

ALJ’s exclusion of the evidence for an abuse of discretion.” Manna Pro

Partners, L.P. v. NLRB, 986 F.2d 1346, 1353 (10th Cir. 1993).

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 In addition, the Administrative Procedures Act directs reviewing courts to

take “due account . . . of the rule of prejudicial error.” 5 U.S.C. § 706. As a

result, we may overturn the ALJ’s decision only if the error in excluding evidence

“prejudicially affect[ed] a substantial right of a party.” See Sanjuan v. IBP, Inc.,

160 F.3d 1291, 1296 (10th Cir. 1998) (applying the prejudicial error rule to a

judgment on a jury verdict). An error is prejudicial only “if it can be reasonably

concluded that with . . . such evidence, there would have been a contrary result.”

Id. (internal quotation marks omitted).

B. The ALJ failed to provide a sufficient explanation of his decision that
Mr. Gunderson did not suffer from legal pneumoconiosis.

Mr. Gunderson first contends that the ALJ failed to comply with the

Administrative Procedures Act provision requiring agency tribunals to explain the

grounds for their decisions. That provision states that

[a]ll decisions, including initial, recommended, and
tentative decisions, are a part of the record and shall
include a statement of –
. . . findings and conclusions, and the reasons or basis
therefor, on all the material issues of fact, law, or
discretion presented on the record;

5 U.S.C. § 557(c)(3)(A) (emphasis added). In Mr. Gunderson’s view, the ALJ did

not provide “the reasons or basis” for rejecting the legal pneumoconiosis claim.

Instead, the ALJ “just threw up his hands, implying he could not decide who was

right on a scientific basis.” Aplt’s Br. at 34.

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 In response, Blue Mountain Energy maintains that the ALJ complied with his

obligations under the APA. It further argues that the finding that Mr. Gunderson did

not establish his entitlement to benefits is supported by substantial evidence and that

the ALJ’s credibility findings cannot be revisited by this court on appeal.

1. Section 557(c)(3)(A)’s reasoned explanation requirement

Mr. Gunderson’s argument is grounded in fundamental principles of

administrative law. Section 557(c)(3)(A), which he invokes, requires an agency’s

adjudicative decision to be “accompanied by a clear and satisfactory explication of

the basis on which it rests.” Barren Creek Coal Co. v. Witmer, 111 F.3d 352, 356

(3d Cir. 1997) (internal quotation marks omitted). That requirement serves several

important interests.

First, it enables appellate courts to engage in meaningful judicial review. Id.

In addition, “[an adequate] statement of reasons or findings also helps avoid judicial

usurpation of administrative functions, assures more careful administrative

consideration, and helps the parties plan their cases for judicial review.” Id.; see

also Dakota Underground, Inc. v. Sec’y of Labor, 200 F.3d 564, 568 (8th Cir. 2000)

(observing that, in light of an agency decision’s inadequacy, “we cannot assess the

correctness of the ALJ’s apparent determination that a [regulatory] violation

occurred, nor can we evaluate the ALJ’s characterization of the violation as

willful”); Dickson v. Sec’y of Defense, 68 F.3d 1396, 1407 (D.C. Cir. 1995)

(“Because the [agency] only listed the facts and stated its conclusions, but did not

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connect them in any rational way, the [agency’s] decisions are arbitrary and

capricious. Where an agency has failed . . . to explain the path it has taken, we have

no choice but to remand for a reasoned explanation.” (citation, internal quotation

marks, and footnote omitted)). Of course, “[t]his duty of explanation is not intended

to be a mandate for administrative verbosity or pedantry. If a reviewing court can

discern what the ALJ did and why he did it, the duty of explanation is satisfied.”

Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10 (4th Cir. 1999) (internal

quotation marks omitted).

This duty of explanation has added importance for cases in which medical or

scientific evidence has been presented. “[A] scientific dispute must be resolved on

scientific grounds. This requires the ALJ to articulate a reason and provide support

for favoring one opinion over another.” Stalcup, 477 F.3d at 484 (internal quotation

marks and citation omitted); see also Freeman United Coal Mining Co. v. Benefits

Review Bd., U.S. Dept. of Labor, 879 F.2d 245, 248 (7th Cir. 1989) (stating that

“[c]oncomitant with the ALJ’s duty to resolve all conflicts in the medical evidence

is the responsibility to provide some general articulable basis for rejecting certain

key medical evidence that favors or disfavors an award of benefits”). As Judge

Posner has written, that obligation comports with “the elementary principles of

rational truth-seeking.” Sahara Coal Co. v. Fitts, 39 F.3d 781, 782 (7th Cir. 1994).

It also accords with the deference courts generally afford to agency action that

“implicates scientific and technical judgments within the scope of agency expertise.”

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See Wyoming v. United States, 279 F.3d 1214, 1240 (10th Cir. 2002) (internal

quotation marks omitted). That expertise allows agencies to relax the rules of

evidence because they are deemed to “have the skill needed to handle evidence that

might mislead a jury. They have a corresponding obligation to use that skill when

evaluating technical evidence.” Peabody Coal Co. v. McCandless, 255 F.3d 465, 469

(7th Cir. 2001) (citation omitted).

There are a variety of ways in which an agency decision may fail to meet the

obligation to resolve a scientific dispute on scientific grounds. For example, it may

wrongly attempt to avoid the scientific controversy altogether “by basing [its]

decision on which side has more medical opinions in its favor.” Stalcup, 477 F.3d

at 484. Alternatively, the agency may erroneously decide the case on a theory of

reliability that has no scientific basis. See Peabody Coal, 255 F.3d at 468

(concluding that an ALJ could not base his decision on the mere fact that one expert

had performed the autopsy while others with conflicting opinions had examined

tissue slides because there was no “medical reason to believe that visual scrutiny of

gross attributes is more reliable than microscopic examination of tissue samples as

a way to diagnose pneumoconiosis”). In other instances, the agency decisionmaker

may err by providing only a cursory statement that one expert’s opinion outweighs

another, thereby leaving a reviewing court “unable to determine the analytic process

behind the result.” Barren Creek, 111 F.3d at 354; see also Milburn Colliery Co. v.

Hicks, 138 F.3d 524, 536 (4th Cir. 1998) (holding that an ALJ failed to comply with

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5 U.S.C. § 557(c)(3)(A) when he “relied upon summary conclusions that were not

fully explained or supported”).

2. Application of § 557(c)(3)(A) in Black Lung Benefits Act cases

Our sister circuits have applied these precepts in a number of black lung cases,

remanding for further proceedings when the agency has failed to adequately explain

its assessment of disputed medical and scientific evidence regarding the causes of

a miner’s pulmonary disease. For example, in Stalcup, the ALJ stated that “[three

physicians] found no pneumoconiosis, while [two other physicians] found the

existence of the disease” and then explained that “[b]ecause these opinions are

entitled to equal weight, I now find that [the miner] has not established the existence

of pneumoconiosis.” 477 F.3d at 484. In remanding, the Seventh Circuit held that

the ALJ had impermissibly merely “counted noses” and had erred by “dodg[ing] the

scientific controversy by counting the reliable physicians on each side.” Id. Because

the ALJ had failed to “indicate why the opinions of [the doctors finding no

pneumoconiosis] are more persuasive than the contrary opinions[,]” he failed to

satisfy his § 557(c)(3)(A) obligation and a remand was warranted.

Similarly, in Barren Creek, the Third Circuit remanded a black lung case to

the agency because the ALJ had “provid[ed] virtually no explanation for his

acceptance of some opinions and his rejection of others.” 111 F.3d at 355. The

court observed that “the APA demands a substantially longer and more explanatory

discussion on the part of the ALJ for the basis of his decision and the rejection of

-21-
substantial probative evidence to the contrary” and that “[g]iven the amount and

variety of medical information in the record, the one paragraph which the ALJ

devotes to explaining his choices among the evidence is completely inadequate.” Id.

at 355, 356.

Finally, in Milburn Colliery, the Fourth Circuit found a similar deficiency in

an ALJ’s order that merely stated that “[b]ased upon the totality of the evidence, in

particular the opinion of [a particular doctor], which I credit, I find that the

Claimant’s coal worker’s [sic] pneumoconiosis clearly is, at least, a significant

contributing cause of such total disability.” 138 F.3d at 536 (first and last alteration

in original). In the court’s view, that conclusion was not supported with the “valid

reasoning” required under the APA. Id. at 537; see also Sahara Coal, 39 F.3d at 783

(remanding a black lung case to the agency because “[n]othing in the administrative

law judge’s opinion offers a clue as to how to choose between the two physicians’

opinions”). These cases are persuasive, and they guide our analysis here.

3. The ALJ’s decision in Mr. Gunderson’s case

Like the courts in Stalcup, Barren Creek, Milburn Colliery, and Sahara Coal,

we cannot discern “the reasons or basis,” 5 U.S.C. § 557(c)(3)(A), for the ALJ’s

rejection of Mr. Gunderson’s claim that he suffered from legal pneumoconiosis. The

ALJ failed to resolve the “scientific dispute . . . on scientific grounds.” Stalcup, 477

F.3d at 484 (internal quotation marks omitted).

-22-
 In particular, from the ALJ’s statement that the conflicting opinions are “evenly

balanced, and should receive equal weight,” Rec., ALJ Materials, Dec. & Order, filed

March 21, 2007, at 22, we cannot tell how he evaluated their opinions. The mere fact

that equally qualified experts gave conflicting testimony does not authorize the ALJ

to avoid the scientific controversy by declaring a tie. See Stalcup, 477 F.3d at 484

(“[W]hen an ALJ is faced with conflicting evidence from medical experts, he cannot

avoid the scientific controversy by basing his decision on which side has more

medical opinions in his favor.”). Of course, there may be some issues as to which

scientific knowledge does not permit an ALJ to identify the more probable of the

disputed expert opinions. However, if that is the case, then ALJ has a duty to explain,

on scientific grounds, why a conclusion cannot be reached. Stalcup, 477 F.3d at 484.

Merely stating that the evidence is “evenly balanced, and should receive equal

weight,” without further explanation, is not sufficient. See Rec., ALJ Materials, Dec.

& Order, filed March 21, 2007, at 22.

In reaching this conclusion, we reject Blue Mountain Energy’s contention that

requiring a more detailed, scientifically-grounded explanation from the ALJ sets the

bar too high. See Aple’s Br. at 34 (stating that “Gunderson’s argument that the ALJ

somehow is required to resolve perceived conflicts in medical literature in the course

of resolving the factual disputes in the case and then relate the clinical evidence to

the articles is an extraordinary demand supported by no authority”). The ALJ’s task

is not to resolve general scientific controversies, but instead to determine the facts of

-23-
the case at hand and apply the law accordingly. This is a task that is routinely

assigned to judges and to juries and that may be accomplished by careful

consideration of many factors, including “the qualifications of the respective

physicians, the explanation of their medical opinions, the documentation underlying

their medical judgments, and the sophistication and bases of their diagnoses.”

Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 441 (4th Cir. 1997); cf. Burton

v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 917 (10th Cir. 2005) (concluding that

a jury was capable of evaluating “extensive expert testimony on the scientific and

medical literature describing the relationship between smoking and peripheral

vascular disease” in determining whether the defendant had a duty to warn of those

risks); Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1236 (10th Cir. 2004) (concluding

that a jury was capable of evaluating expert testimony regarding “whether copper

sulfide particles found on the valve seat in this case were sufficient to cause a leak”).

Moreover, with regard to disputes concerning the existence and causes of

pneumoconiosis, an ALJ has the benefit of a substantial inquiry by the Department

of Labor. For example, the Department’s regulations characterize pneumoconiosis

“as 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). An ALJ may

properly rely on those regulations when assessing scientific testimony. See Roberts

& Schaefer Co. v. Dir., Office of Workers’ Comp. Programs, 400 F.3d 992, 999 (7th

-24-
Cir. 2005) (concluding that an ALJ could properly limit the weight assigned to an

expert opinion because the opinion “conflict[ed] with [20 C.F.R.] § 718.201(c)’s

recognition that pneumoconiosis can be latent and progressive” and was “contrary to

the congressional findings and purpose central to the BLBA”); Midland Coal Co. v.

Dir., Office of Workers’ Comp. Programs, 358 F.3d 486, 490 (7th Cir. 2004) (holding

that an ALJ could properly rely on the Department’s finding on the scientific question

whether legal pneumoconiosis is “a disease that can be latent and progressive”).

We further note that, although there are certainly instances in which agency

tribunals have failed to provide a reasoned explanation in black lung cases, there are

also a number of reported decisions, thankfully, in which ALJs have complied with

the APA standard, even when closely disputed scientific testimony is involved. For

example, in Consolidation Coal Co. v. Dir., Office of Workers’ Comp. Programs, 521

F.3d 723 (7th Cir. 2008), the ALJ heard conflicting evidence from two of the same

experts who testified in Mr. Gunderson’s case: Drs. Cohen and Renn. Instead of

concluding, as the ALJ did here, that the experts’ testimony was “evenly balanced,

and should receive equal weight,” Rec., ALJ Materials, Dec. & Order, filed March 21,

2007, at 22, the ALJ in Consolidation Coal offered an explanation as to why Dr.

Cohen had the better view: “The ALJ found Dr. Cohen’s opinion most persuasive

because he carefully discussed the substantial body of scientific evidence

documenting the causal relationship between [chronic obstructive pulmonary disease]

and occupational exposure . . . . Dr. Cohen integrated this medical evidence along

-25-
with [the miner’s] medical record to conclude that coal dust exposure did contribute

to his obstruction.” 521 F.3d at 726. See also Consolidation Coal Co. v. Dir., Office

of Workers’ Comp. Programs, 294 F.3d 885, 889 (7th Cir. 2002) (affirming an ALJ’s

explicit finding that an expert’s “negative reading of the CT scan was unreliable, for

the judge was of the opinion that the record failed to establish that [the expert] ha[d]

sufficient knowledge, training, or expertise in reading and interpreting a CT scan for

the diagnosis of legal pneumoconiosis”); Freeman United Coal Min. Co. v. Summers,

272 F.3d 473, 483 (7th Cir. 2001) (concluding that an ALJ could properly credit the

testimony of one expert over others because of that expert’s “remarkable clinical

experience and superior knowledge of cutting-edge research”); Peabody Coal Co. v.

Hill, 123 F.3d 412, 417 (6th Cir. 1997) (concluding that the ALJ’s explanation was

sufficient when he offered specific reasons for crediting and discounting the

testimony of physicians regarding the existence of pneumoconiosis, including (a) the

fact that the mining company’s experts did not “persuasively discount[] the effects

of [the miner’s] thirty-seven years of underground employment in rejecting the impact

of coal dust exposure in their analysis of the cause of [the miner’s] disability” and

“offered no detailed analysis to support ruling out coal mine employment as the cause

of [the miner’s] respiratory condition[;]” (b) that the opinions of some experts “did

not take into account [the miner’s] smoking history[;]” (c) that another expert’s

opinion “accounted both for coal dust exposure and smoking history in diagnosing

pneumoconiosis,” and was thus the most credible; and (d) that the experts whom the

-26-
ALJ found credible based their opinions “on many factors that included and extended

beyond the x-ray reports”).

4. Greenwich Collieries

In rejecting Mr. Gunderson’s challenge to the sufficiency of the ALJ’s

explanation, the Benefits Review Board cited the Supreme Court’s decision in Dir.,

Office of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994).

There, the Court construed § 7(c) of the Administrative Procedure Act, 5 U.S.C. §

556(d), which imposes the “burden of proof” on the proponent of an order. The Court

held that the phrase should be understood as having its “ordinary or natural meaning,”

which, it said, was the burden of persuasion. 512 U.S. at 272. The Court struck down

a Labor Department rule (the so-called “true doubt” rule), which imposed the burden

of persuasion on the party opposing a claim for benefits. As the Court explained it:

“Under the Department’s true doubt rule, when the evidence is evenly balanced the

claimant wins. Under § 7(c) [of the Administrative Procedures Act], however, when

the evidence is evenly balanced, the benefits claimant must lose.” 512 U.S. at 282.

Under Greenwich Collieries, the APA provision controls.

In our view, Greenwich Collieries does not cure the ALJ’s order of its deficient

explanation. The Supreme Court’s decision does not address the dispositive issue

here—whether the ALJ’s decision was sufficiently reasoned and explained, as

required by 5 U.S.C. § 557(c)(3)(A). To be sure, there may be cases in which the

scientific evidence is evenly balanced. Under Greenwich Collieries, the benefits

-27-
claimant could not prevail in such a case. However, from the ALJ’s cursory

assessment here, we cannot conclude that Mr. Gunderson’s is such a case.

5. Remand is required

We therefore conclude that the ALJ had failed provide a sufficient explanation

of his decision denying Mr. Gunderson’s claim for benefits, as required by 5 U.S.C.

§ 557(c)(3)(A). Accordingly we must remand the case to the Department of Labor

for further proceedings. 4

C. The ALJ did not err in excluding a letter from the Director of the Division
of Respiratory Disease Studies at the National Institute of Occupational
Health and Safety reporting that an x-ray was positive for
pneumoconiosis.

Finally, Mr. Gunderson argues that the ALJ erred in excluding a January 2001

letter from Dr. Gregory Wagner, Director of the Division of Respiratory Disease

4
Mr. Gunderson also argues that the ALJ “[f]ailed to [c]ompare the
[c]redentials of the [e]xperts [i]n an [e]ven-[h]anded [w]ay.” Aplt’s Br. at 41. He
contends that, with regard to the physicians who read the x-rays, the ALJ gave
greater weight to the one with the most experience (Dr. Wiot). However, Mr.
Gunderson contends, as to the doctors who examined him and reviewed his other
medical records, the ALJ failed to give more weight to the more experienced ones
(i.e., those who concluded that he had pneumoconiosis).
We are not persuaded by Mr. Gunderson’s argument. The ALJ had
discretion to make particular credibility findings as to x-ray readers and different
findings as to other doctors. See Energy West, 555 F.3d at 1217 (stating that
“[w]e are especially mindful that the task of weighing conflicting medical
evidence is within the sole province of the ALJ and that where medical
professionals are in disagreement, the trier of fact is in a unique position to
determine credibility and weigh the evidence”) (internal quotation marks and
citation omitted). Moreover, the ALJ’s credibility findings need not be based
solely on the kinds of measures that Mr. Gunderson suggests (e.g., that his
testifying physicians were more credible because they were seeing more patients).

-28-
Studies at the National Institute of Occupational Safety and Health. In the letter, Dr.

Wagner reports that on August 25, 2000, at Rangely District Hospital, Mr. Gunderson

had a chest x-ray that detected evidence of pneumoconiosis.

At the evidentiary hearing, the ALJ initially admitted the Wagner letter.

However, in his written ruling, the ALJ excluded the letter, reasoning that (1) the

letter exceeded the two x-ray limit of 20 C.F.R. § 725.414(a) and (2) in any event, the

letter did not meet the standards for x-rays set forth in 20 C.F.R. § 718.202(a) and §

718.102 because (a) it did not show the date the x-ray was taken and (b) it did not

give the name or qualifications of the doctor who read the x-ray or the type of

opacities found.

Mr. Gunderson now contends that the decision to exclude the Wagner letter

was error. He argues that, notwithstanding the two-x-ray limit, the letter may be

properly considered as a “treatment record” under 20 C.F.R. § 725.414(a)(4). That

regulation states that “any record of a miner’s . . . medical treatment for a respiratory

or pulmonary or related disease, may be received into evidence.” Id.

We discern no grounds for reversal here. The governing Administrative

Procedures Act provision states that “[a]ny oral or documentary evidence may be

received, but the agency as a matter of policy shall provide for the exclusion of

irrelevant, immaterial, or unduly repetitious evidence.” 5 U.S.C. § 556(d). Because

the Wagner letter only referred to an x-ray but did not contain crucial information

-29-
about it (e.g., who interpreted it and what it actually showed), the ALJ did not abuse

his considerable discretion in excluding the letter.

Moreover, as we have noted, the APA also provides that courts reviewing

agency decisions shall take “due account . . . of the rule of prejudicial error.” 5

U.S.C. § 706. In light of the quantity of detailed evidence of Mr. Gunderson’s

medical history already in the record, he has failed to show that the exclusion of this

one letter has caused him prejudice.

III. CONCLUSION

The ALJ did not offer a scientific explanation for his conclusion that the

experts’ testimony was “evenly balanced, and should receive equal weight,” and that,

as result, Mr. Gunderson had failed to establish that he suffered from legal

pneumoconiosis. See Rec., ALJ Materials, Dec. & Order, filed March 21, 2007, at

22. In this regard, the ALJ’s decision did not comply with the governing provision

of the Administrative Procedures Act, 5 U.S.C. § 557(c)(3)(A). Although we reject

Mr. Gunderson’s other challenge to the ALJ’s ruling, we must therefore REMAND

the case to the Department of Labor for further proceedings consistent with this

opinion.

-30-
08-9537 Gunderson v. U.S. Dep’t of Labor

O’BRIEN, J., Dissenting.

Even though intimately familiar with the issues and knowledgeable as to the

scientific principles presented in a case, an administrative law judge (ALJ) is not

an expert. The ALJ is not expected, nor permitted, to meld expert opinion into his

own unified theory, which he then independently applies to the facts. And it is

beyond the ken of an ALJ to resolve a scientific debate. Instead, once the ALJ

determines “an expert’s testimony both rests on a reliable foundation and is

relevant to the task at hand,” 1 the only issue is credibility. When expert opinion is

diametrically opposed, the ALJ must, based on all of the evidence, make a

reasoned choice, if possible, as to which expert opinion is more probably correct.

But a principled choice cannot always be achieved. As the majority concedes

“there may be cases in which the scientific evidence is evenly balanced.”

(Majority Op. at 29.) This is such a case. When he could do so, the ALJ made

credibility choices among the experts; when he could not, he candidly confessed

his inability. Accordingly, I must dissent from the majority’s requirement that the

ALJ do more than explain why expert opinion is in equipoise and hold the

proponent of an issue to his burden of proof.

The Administrative Procedure Act provides in pertinent part:

The record shall show the ruling on each finding, conclusion, or
exception presented. All decisions, including initial, recommended,
and tentative decisions, are a part of the record and shall include a
statement of—[ ] findings and conclusions, and the reasons or basis

1
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
 therefor, on all the material issues of fact, law, or discretion presented
on the record . . . .

5 U.S.C. § 557(c). As explained by the Supreme Court, the APA “establishes a

scheme of reasoned decisionmaking. Not only must an agency’s decreed result be

within the scope of its lawful authority, but the process by which it reaches that

result must be logical and rational.” Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359, 374 (1998) (citation and quotations omitted). The purpose of the

APA’s “duty of explanation” is twofold—it “help[s] the ALJ get it right” and it

“allow[s] [the appellate court] to discharge [its] duty to review the decision.”

Lane Hollow Coal Co. v. Dir., Office of Workers’ Comp. Programs, United States

Dep’t of Labor, 137 F.3d 799, 803 (4th Cir. 1998) (citation omitted).

Here, doctors on both sides agreed Gunderson had legal pneumoconiosis but

they disagreed as to the cause. Gunderson’s experts, Dr. Cohen and Dr. Parker,

opined Gunderson’s pneumoconiosis was caused by both coal dust and smoking. 2

Blue Mountain’s experts, Dr. Rephser and Dr. Renn, opined Gunderson’s

pneumoconiosis was not caused by coal dust. The ALJ did not resolve the

scientific dispute as to the causation of Gunderson’s pneumoconiosis on scientific

2
Dr. Shockey, who examined Gunderson for the Department of Labor, also
concluded Gunderson suffered from pneumoconiosis attributable in part to coal
dust. Dr. Shockey is neither board-certified nor a B-reader so the ALJ did not
give his opinion as much weight as that of the other, better credentialed, doctors.
The ALJ then decided Gunderson did not have clinical pneumoconiosis;
Gunderson has not appealed from that decision. The ALJ concluded the expert
opinion was equally divided on the legal pneumoconiosis issue.

-2-
grounds for good reason. Because all the experts were equally well-qualified and

gave a reasoned basis for their conflicting conclusions, the ALJ—who presumably

is not board-certified, or even schooled, in the medical arts—had no basis for

determining which doctor was correct, only who was more credible.

The majority relies, in part, on two cases from the Seventh Circuit, Stalcup

v. Peabody Coal Co., 477 F.3d 482 (7th Cir. 2007), and Sahara Coal Co. v. Fitts,

39 F.3d 781 (7th Cir. 1994). In Sahara, two physicians, Drs. Raos and Houser,

concluded the claimant had pneumoconiosis while one doctor, Dr. Tuteur,

concluded he did not. The ALJ determined the claimant had the disease and

awarded him benefits, simply saying: “While Dr. Tuteur’s report is both

adequately documented and well reasoned, his opinion is outweighed by the

opinions of Drs. Rao and Houser, despite the subsequent negative x-ray

interpretations.” 39 F.3d at 782 (quotations omitted). The Seventh Circuit

reversed and remanded, surmising the ALJ’s result was actually based on the

number of opinions rather than their substance. Id. In Stalcup, the Court further

expounded:

[W]hen an ALJ is faced with conflicting evidence from medical
experts, he cannot avoid the scientific controversy by basing his
decision on which side has more medical opinions in its favor. This
unreasoned approach, which amounts to nothing more than a
mechanical nose count of witnesses, would promote a quantity-over-
quality approach to expert retention, requiring parties to engage in a
race to hire experts to insure victory.

-3-
477 F.3d at 484 (citations and quotations omitted). There, the court remanded the

case to the ALJ because the ALJ arrived at its decision by “count[ing] noses.” Id.

It explained: “[The ALJ] concluded the qualifications and expertise of the

physicians are equal and then dodged the scientific controversy by counting the

reliable physicians on each side.” Id.

Gunderson asserts: “[The ALJ’s] assignment of ‘equal weight’ to conflicting

opinions that he found to be each equally well-reasoned and documented, is no

different than the mechanical nose-counting that the courts have uniformly

deplored.” (Appellant’s Reply Br. at 15.) But being unable to resolve a

credibility issue on principled grounds is a far cry from merely counting noses.

Here, after discussing the opinions and credentials of the experts, the ALJ stated

the medical evidence and opinions before him were in equipoise and, therefore,

Gunderson failed to meet his burden of proof. I do not read Sahara and Stalcup to

require the ALJ to definitively pronounce the science on one side to be preferable

to the science on the other. Rather, these holdings require a careful review of the

substance, not the number, of the medical opinions. From this review, the ALJ

must ultimately determine whether the party bearing the burden of proof has

shown his opinions are more likely to be correct. No more is required.

The majority also relies on cases from the Third and Fourth Circuits. In

Barren Creek Coal Co. v. Witmer, the Third Circuit held the ALJ violated the APA

-4-
by providing a “completely inadequate” one paragraph explanation for his

conclusion the claimant was totally disabled:

The ALJ provides virtually no explanation for his acceptance of some
opinions and his rejection of others. Even a brief look at the
credentials of each doctor, and at the circumstances under which each
formed his opinion, demonstrates that the APA demands a
substantially longer and more explanatory discussion on the part of
the ALJ for the basis of his decision and the rejection of substantial
probative evidence to the contrary.

111 F.3d 352, 355 (3d Cir. 1997).

In Milburn Colliery Co. v. Hicks, the Fourth Circuit reversed and remanded

the ALJ’s determination in favor of the claimant because “the ALJ erred by failing

to consider all of the relevant evidence, improperly weighing certain evidence,

failing to adequately explain why he credited certain evidence and discredited

other evidence, and never adequately addressing the evidence of Hicks’ other

health problems.” 138 F.3d 524, 532 (4th Cir. 1998).

Neither Barren Creek Coal nor Milburn provides much guidance. Here, the

ALJ carefully avoided any impermissible presumptions and thoroughly evaluated

the relevant evidence. Contrary to the majority’s description of the ALJ’s

discussion as “cursory,” the decision sets forth the doctors’ qualifications,

describes the medical opinions in detail and notes the documentation underlying

their disagreements and contrary conclusions. 3 (Majority Op. at 4, 29.) In the

end, the ALJ concluded the opinions were equally well-reasoned and equally

3
The ALJ’s decision is attached as Exhibit A.

-5-
supported by the literature. As the Fourth Circuit has explained: “If we understand

what the ALJ did and why he did it, we, and the APA, are satisfied.” Lane Hollow

Coal Co., 137 F.3d at 803. It seems to me the majority’s approach sacrifices

candor on the altar of regularity.

Decisions of the Department of Labor’s Benefits Review Board provide that

“B readers” 4 are generally to be considered more credible (because of

demonstrated proficiency) than other x-ray readers, 5 a presumption the ALJ

employed here in discounting the opinion of Dr. Shockey. Of course that would

not always be true, but an ALJ might be called upon to explain why the

presumption was overcome in a specific instance. On the other hand, an ALJ

would not generally be expected to explain why he gave more weight to the

opinion of a “B reader” (because most often it would be an unnecessarily time

consuming endeavor). So—if he has a mind to do so, an ALJ unwilling to commit

4
20 C.F.R. § 718.202(a)(1)(ii)(E) defines a “Certified ‘B’ reader or ‘B’
reader” as:
a physician who has demonstrated proficiency in evaluating chest
roentgenograms for roentgenographic quality and in the use of the
ILO-U/C classification for interpreting chest roentgenograms for
pneumoconiosis and other diseases by taking and passing a specially
designed proficiency examination given on behalf of or by the
Appalachian Laboratory for Occupational Safety and Health. See 42
CFR 37.51(b)(2).
5
But see Black & Decker Disability Plan v. Nord, 538 U.S. 822, 830
(2003) (recognizing that affording more weight to a treating physician’s opinions
than those of a retained consultant may make “scant sense” when the relationship
between the treating physician and the claimant is of short duration or the
retained consultant has expertise the treating physician lacks).

-6-
sufficient effort to the analytical process, can find a presumption or distinction

sufficient to survive review, given the deferential standards employed. Accepting

a candid assessment of credibility such as the one made here is more likely to

yield just results than requiring explanations and justifications, which in the end

may be hollow. Moreover, it reflects the trust and confidence we supposedly have

in the integrity and competence of ALJs. Here, were it his purpose, the ALJ could

have found a reason to prefer Blue Mountain’s experts over Gunderson’s. Had he

done so, it is unlikely his decision would be reversed.

“[E]ach miner bear[s] the burden of proving that his obstructive lung disease

did in fact arise out of his coal mine employment, and not from another source.”

65 Fed. Reg. 79,920, 79,938 (Dec. 20, 2000); see also 64 Fed. Reg. 54,966, 54,978

(Oct. 8, 1999) (noting that if a miner fails to demonstrate the existence of clinical

pneumoconiosis “he must prove that his lung disease arose out of coal mine

employment in order to carry his burden and establish that he has

pneumoconiosis”). I see no basis for Gunderson’s claim that his experts merit

more weight. The weight afforded to experts is a credibility determination to

which we defer to the ALJ. See Hansen v. Dir., Workers’ Comp. Programs,

United States Dep’t of Labor, 984 F.2d 364, 370 (10th Cir. 1993) (“The evidence

was conflicting and, where medical professionals are in disagreement, the trier of

fact is in a unique position to determine credibility and weigh the evidence.”).

Surely, the ALJ does not violate the APA by failing to resolve a true scientific

-7-
dispute. That is why a claimant is required to meet his burden of persuasion;

where the evidence is in equipoise, he has not done so. I would affirm the ALJ’s

reasoned decision, as affirmed by the Department of Labor’s Benefits Review

Board, 6 that Gunderson is not entitled to benefits because his evidence was

insufficient.

6
The Board’s decision is attached as Exhibit B.

-8-
 EXHIBIT A

U.S Department of Labor Office of Administrative Law Judges
11870 Merchants Walk Suite 204
Newport News, VA 23606-1904

757-591-5140
757-591-5150 (FAX)

SUBJECT: TG v. BLUE MOUNTAIN ENERGY, INC.
Case No. 2004BLA05323
<
The attached document uses the initials "TG" to represent the Claimant's
name,"GUNDERSON TERRY O. ".

OALJ Cas. Docket Information
Case Document: 2004BLA05323 Case Decision
Title: Decision and Order - Denying Benefits
Claimant Initials "TG" = "GUNDERSON TERRY O. "
Employer: BLUE MOUNTAIN ENERGY, INC.

A1
EXHIBIT A
Page 1
 EXHIBIT A

U.S. Department of Labor Office of Administrative Law Judges
11870 Merchants Walk - Suite 204
Newport News, VA 23606

(757) 591-5140
(757) 591-5150 (FAX)

Issue Date: 21 March 2007
Case No,: 2004-BLA-05323

In the Matter of:

T.G.,
Claimant,
v.

BLUE MOUNTAIN ENERGY,
Employer
and

OLD REPUBLIC INSURANCE COMPANY, INC.
Carrier,
and

DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS,
Party-in-Interest.

Appearances: Thomas E. Johnson, Esq.
For the Claimant

Richard H. Risse, Esq.
For the Employer

Before: RICHARD K. MALAMPHY
Administrative Law Judge

DECISION AND ORDER - DENYING BENEFITS

This case arises from a claim for federal benefits under the "Black Lung Benefits Act,"
Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, 30 U.S.C. § 90 I
et ~, ("ACT"), and applicable regulations, mainly 20 C.F,R. Parts 410, 718 and 727
("Regu lations").

The Act and Regulations provide compensation and other benefits to: (1) living coal
miners who are totally disabled due to pneumoconiosis and their dependents; (2) surviving
dependents of coal miners whose death was due to pneumoconiosis; and (3) surviving
dependents of coal miners who were totally disabled due to pneumoconiosis at the time of their
death (for claims filed prior to January 1, 1982). See also Sections 718.306 and 727.204 for

A2
EXHIBIT A
Page 2
 EXHIBIT A

entitlement presumptions in certain death claims filed before April 30, 1982, where the miner
was partially disabled at death. Other benefits include necessary medical and hospitalization
costs required for the treatment of pneumoconiosis. The Act and Regulations define
pneumoconiosis ("black lung disease" or "CWP") as a chronic dust disease of the lung and its
sequelae, including respiratory and pulmonary impairments, arising out of coal mine
employment. See § 718.201.

A formal hearing was held in Grand Junction, Colorado on May 18, 2006, at which all
parties were afforded a full opportunity to present evidence and argument, as provided in the Act
and the Regulations issued thereunder, found in Title 20, Code of Federal Regulations, Parts 725
and 718.

ISSUES

The contested issues are:

I. Whether the Claimant has pneumoconiosis;

2. Whether the Claimant's pneumoconiosis arose out of his coal mine employment;

3. Whether the Claimant is totally disabled; and

4. Whether the Claimant's total disability is due to pneumoconiosis. (DX 31)1

PRELIMINARY MATTERS

The District Director, in a Proposed Decision and Order dated February 6, 2003,
concluded that the Miner was totally disabled due to coal workers' pneumoconiosis. (DX 29)
The putative responsible operator rejected the Proposed Decision and Order and requested a
formal hearing before an administrative law judge. (OX 30)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Coal Miner

The Claimant was a coal miner within the meaning of § 402(d) of the Act and § 725.202
of the Regulations for at least thirty years. (See Stipulation of Parties at TR 16)

I The following abbreviations have been used as citations to the record:
ALJX - Administrative Law Judge's Exhibits;
CX Claimant's Exhibits;
EX Employer's Exhibits;
OX Director's Exhibits; and
TR Transcript of Hearing.

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Date of Filing

The Claimant filed his claim for benefits under the Act on June 15,2001. (OX 2). None
ofthe Act's filing time limitations are applicable, thus the claim was timely filed.

Responsible Operator

Blue Mountain Energy is the last Employer for whom the Claimant worked a cumulative
period of at least one year and is the properly designated responsible coal mine operator in this
case under Subpart F of Part 725 of the Regulations. (See Stipulation at TR 16).

Dependent

The Claimant has one dependent for purposes of augmentation of benefits under the Act,
his wife. (OX 2, TR 22).

Background and Employment History

The Claimant

At the hearing, the Claimant testified that he retired on January 7, 2004. (TR 22) He
stated that by the time he retired he was less capable of performing his job. (TR 44) He was
unable to "keep up" because of fatigue. (TR 44)

At the time of his retirement, the Claimant was employed as an acting general foreman.
(TR 41-43) Prior to working as an acting general foreman, he was a shift foreman for
approximately thirteen years. (TR 30, 41) Before becoming a shift foreman, he held a variety of
other mining jobs. (TR 22-30)

As a shift foreman, the Claimant was required to supervise numerous workers and
complete some paperwork. (TR 30, 51) However, the job also required rigorous physical
activity. (TR 34-41) The Claimant often helped stack timbers or concrete blocks to reinforce the
mine's roof, using materials that weighed between 30 and 150 pounds. (TR 34-35) He was also
required to carry bags of rock dust weighing fifty pounds and shovel coal that fell off of the belt
lines. (TR 37-38) Further, on an average day he walked between ten and fifteen miles. (TR 40)

The Claimant admitted that after becoming the acting general foreman, his workload
probably lessened. (TR 52) He performed the same physically demanding tasks as the acting
general foreman that he did as a shift foreman. (TR 53) He just did not always have to perform
the tasks as often. (TR 53)

The dust level in this mine, a mine which produced as much as two million tons of coal in
one year, and as much as 2,500 tons of coal in one hour, was significant. (TR 31-34) The
Claimant stated that, when the miners were cutting the entries or when the machines were
digging into the coal, a substantial amount of dust was being generated. (TR 32) Further, in

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some areas, where used air was brought out of the mine, dust from the active production areas
was also being expelled. (TR 33-34) At these areas, where the Claimant often worked, the dust
level was very high. (TR 34) The Claimant stated that "[c]oal mining is dusty business. If
you're not eating coal dust, you're blowing rock dust." (TR 34)

The Claimant acknowledged that he smoked cigarettes from 1962 to 1996 at a rate of
about one pack per day. (TR 47) He occasionally smoked a pipe, although he did not inhale.
(TR 48-49, 60)

The Claimant now experiences significant shortness of breath. (TR 46). He has
difficulty carrying things or doing other manual labor, such as digging holes in his yard. (TR 46)
When performing such tasks, he has to sit down and rest. (TR 46) He stated, "I just don't have
the stamina. Seems like 1 wear out easy." (TR 46)

Dr. Lawrence Repsher

Dr. Lawrence Repsher testified at the hearing that he is an internist and that he specializes
in pulmonary diseases. (TR 62) He is also a B-Reader. (TR 63) Further, he is certified as an
examiner for the Colorado Workers' Compensation Board. (TR 63)

Dr. Repsher stated that he examined the Claimant in September of 2002. (TR 63)
During that examination, the Claimant underwent a chest x-ray. (TR 64) Dr. Repsher found no
evidence of pneumoconiosis on the x-ray. (TR 64) He did determine that the Claimant had
some intrinsic lung disease, with mild obstruction, and probably some emphysema, but did not
believe that any of these conditions were caused by the Claimant's coal mine work, or that any of
these conditions would prevent the Claimant from returning to his prior coal mine employment.
(TR 96). Dr. Repsher stated that the Claimant's mild obstructive breathing impairment was due
solely to cigarette smoke. (TR 101)

Dr. Repsher noted that he reviewed a report by Dr. Robert Cohen dated April 26, 2006,
which included information on an exercise study that was performed by Dr. Cohen in June of
2005. (TR 65-66) The Claimant was able to exercise for almost eleven minutes at that time.
(TR 89) According to the results of that exercise study, the Claimant reached his anaerobic
threshold. (TR 79) Dr. Repsher stated that this was significant because it meant that the Miner
was not limited by lung capacity. (TR 79).

Dr. Repsher disagreed with some of the conclusions that Dr. Cohen drew from the
exercise study. (TR 94-95) Dr. Cohen found that the Claimant had a significant gas exchange
limitation to exercise. (TR 94) Dr. Repsher, in contrast, did not believe that the Claimant's gas
exchange abnormalities limited his exercise "because his exercise wasn't limited [by his lungs]."
(TR 95)

Dr. Repsher acknowledged that the results of several arterial blood gas studies were
qualifying under the Department of Labor's standards for total disability. (TR 116) When asked
how he could find that the Claimant was not totally disabled, given the qualifying arterial blood
gas tests, Dr. Repsher stated that the qualifying arterial blood gas tests were enough to "establish

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the presumption of total disability, but that this was a "rebuttable presumption." (TR 116-117)
Dr. Repsher also stated that arterial blood gas studies were a "very crude and often inaccurate
way of assessing a person's exercise capacity." (TR 69) Since the results of the exercise test, a
much more sophisticated test, showed that the Claimant's ability to exercise or work was not
limited by lung disease, the presumption established by the arterial blood gas tests was rebutted.
(TR 122)

Pneumoconiosis and Total Disability

The Claimant's application for benefits was filed with the Department of Labor on June
15, 200 I and thus is governed by the permanent Regulations found in 20 C.F.R. § 718, which
became effective on March 31, 1980. Under the new Regulations, the Claimant must establish
the existence of pneumoconiosis, that he is totally disabled as a result of the disease, and that the
disease arose from coal mine employment. Failure to establish anyone of these elements
precludes entitlement. Perry v. Director, OWCP, 9 B.L.R. 1-1, 1-2 (1986).

Pneumoconiosis

Section 718.202 provides that the existence of pneumoconiosis can be established by x-
ray, autopsy or biopsy, or by the report of a physician exercising sound medical judgment stating
the Claimant suffers from pneumoconiosis. 20 C.F.R. § 718.202 (2003).

X-Ray Reports:

Physician/
Number Date of X-Ray Date of Report Qualifications 2 Diagnosis

EX 7, EX 83 4/28/89 5/2189 Smith, --- Non specific
interstitial lung disease

EX 7, EX 8 1018/94 10/8/94 Smith, --- "

EX 7, EX 8 8116196 8/19/96 Kulwiec, ---
EX 7, EX 8, 6/26/97 6/26/97 Smith, --- "
EX9

EX 7, EX 8, 7110197 7110/97 Kulwiec, --- Improving atelectasis
EX 9 andlor infiltrate

EX 7, EX 8 711 2/97 9118/97 Smith, --- Non specific interstitial
lung disease

2 The following abbreviations will be used in describing the qualifications of the physicians:
BeR - Board-certified radiologist;
B - B-reader;
A - A-reader; and
--- - Reader's qualifications unknown, not part of the record.
3 The x-rays listed in EX 9, EX, 8, EX 7 and EX 6 are admissible as treatment records.

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EX 7, EX 8 7/18/97 7/24/97 Nystrom, --- Non specific interstitial
lung disease

EX 7, EX 8 1/28/98 2/2198 Kulwiec, --- Right lower lobe
infiltrate, emphysema

EX 6, EX 8 2/9/98 2/9/98 Smith, --- Emphysema

EX 7, EX 6, 8/10/98 9/21/98 Kulwiec, --- Emphysema
EX 8

EX 7, EX 6, 8/25/00 8/28/00 Nystrom, --- Non specific interstitial
EX 8 lung disease
4
EX 6 917101 917101 Bechtel, --- Subtle nodularity
suggesting CWP

OXI6 4/4/02 4/4/02 Shockey III

OX 20 4/4/02 7/24/02 Wiot, BCR, B NoCWP

CX I 4/4/02 4/13/06 Cappiello, 110
BCR,B

OX 23, EX 2 9/9/02 9/9/02 Repsher, B 010

OX21 9/9/02 9/24/02 Wiot, BCR, B NoCWP

CX7 9/9/02 5/4/06 Ahmed, 111
BCR,B

CX II 9/9/02 617106 Cappiello, I/O
BCR,B

CX 2 6114/05 4/13/06 Cappiello, 110
BCR, B

EX 12 6/14/05 5/10/06 Wiot, NoCWP
BCR, B

ex 3 3/22/06 4/13/06 Cappiello, 1/0
BCR,B

EX II 3/22/06 5/10106 Wiot, NoCWP
BCR,B

4 This x-ray does not meet the standards adopted by the Regulations at 20 C.F.R. § 718.102 (2002). Thus, this x-ray
cannot form the basis for a finding of the existence of clinical pneumoconiosis. See 20 C.F .R. §
718.202(a)( I )(2002).

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According to the regulations concerning the development of evidence, "[t]he responsible
operator designated pursuant to § 725.410 shall be entitled to obtain and submit, in support of its
affirmative case, no more than two chest x-ray interpretations .... " 20 C.F.R. § 725.414(a)(3)(i)
(2003). Similarly, "[t]he claimant shall be entitled to submit, in support of his affirmative case,
no more than two chest x-ray interpretations." 20 C.F.R. § 725.414(a)(2)(i) (2003). The
regulations further state that

[t]he claimant shall be entitled to submit, in rebuttal of the case presented by the
party opposing entitlement, no more than one physician's interpretation of each
chest x-ray ... submitted by the designated responsible operator or the fund, as
appropriate, under paragraph (a)(3)(i) or (a)(3)(iii) of this section and by the
Director pursuant to § 725.406.

20 C.F.R. § 725.414(a)(2)(ii) (2003). Similarly, for purposes of rebuttal, an employer is entitled
to submit no more than one interpretation of each chest x-ray submitted by the claimant. 20
C.F.R. § 725.414(a)(3)(ii) (2003).

As part of his evidence, the Claimant submitted CX 10. (CX 10) This exhibit constitutes
a letter from the Department of Health and Humans Services, dated January 1, 2001, to the Chief
of the Division of Health concerning the results of an x-ray of the Claimant's chest. (CX 10)
The results of this x-ray will not be considered, since the Claimant has already designated two x-
ray interpretations in support of his affirmative case. Since the limitations set forth in 20 C.F.R.
§ 725.414 (2003) are mandatory and cannot be waived, CX 10 cannot be considered.
Moreover, CX 10 fails to show the date the x-ray was taken, the date the x-ray was read by a
doctor, the quality of the x-ray film, the name of the doctor who interpreted the x-ray, the
qualifications of the doctor who interpreted the x-ray, or the type of opacities found. It therefore
does not meet the standards for x-rays set forth in 20 C.F.R. §§ 718.202(a)(l); 718.102 (2002).

Where two or more x-ray reports are in conflict, the radiological qualifications of the
physicians interpreting the x-rays must be considered. 20 C.F.R. § 718.202(a)(1) (2003).
Readings by physicians who are both Board-certified radiologists and B-Readers are generally
entitled to the greatest weight. Roberts v. Bethlehem Mines Corp., 8 BLR 1-211, 1-213 (1985);
Sheckler v. Clinchfield Coal Co., 7 BLR 1-128, 1-132 (1984).

Concerning the x-ray evidence as a whole and the qualifications of the physicians, I find
that I give greater weight to the interpretations of the B-readers over board-certified radiologists.
Meadows v. Westmoreland Coal Co., 6 BLR 1-773, 1-776 (1984); Brown v. Bethlehem Steel
Corp.,4 BLR 1-527, 1-530 (1981).

The x-ray evidence in this case is very close. Physicians who were either dually qualified
or B-Readers read x-rays from late 2002 through early 2006 as being both positive and negative
for pneumoconiosis.

Six of the above-mentioned x-ray reports found that the Claimant had pneumoconiosis.
Five reports found no evidence of pneumoconiosis. However, the Board has held that an
administrative law judge is not required to defer to the numerical superiority of x-ray evidence.
Wilt v. Wolverine Mining Co., 14 B.L.R. 1-70, 1-76 (1990).

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X-ray evidence may also be weighed based upon the qualifications of the physicians.
First, an x-ray was taken by Dr. Shockey on April 4, 2002. Since Dr. Shockey is neither a
certified B-reader nor a board certified radiologist, the undersigned gives substantially less
weight to his opinion. (OX 16) This x-ray was interpreted by Dr. Wiot as being negative for
pneumoconiosis and as having a profusion of 110 by Dr. Cappiello. (OX 20, CX 1) Both Dr.
Wiot and Dr. Cappiello are board certified radiologists and B-Readers. However, after
examining the curriculum vitaes of both physicians, it is clear that Dr. Wiot's credentials are
superior to Dr. Cappiello's.

Dr. Cappiello has had experience as a resident in diagnostic radiology (1973-1976). His
specialty is in diagnostic radiology, with a subspecialty in cardiac radiology.5 (CX 11)
However, Dr. Wiot has had much more experience in the field of radiology. Dr. Wiot was the
Chairman for the Department of Radiology at the University of Cincinnati Medical Center
(1984-1985), the Director of the Department of Radiology at the University of Cincinnati
Hospital (1968-1992),6 the Professor Emeritus of Radiology at the University of Cincinnati
(1998-present)/ a consulting radiologist at the Cincinnati Veterans' Administration Hospital
(1962-present) and the Chief of Radiology at the Cincinnati Children's Hospital Medical Center
(1973-1992). (OX 19) He has also held several positions on the American Board of Radiology
throughout the past thirty years and he has held several positions with the American College of
Radiology, including President from 1983-1984. (OX 19) He has also been a member of
multiple professional societies involving radiology. (OX 19) He has authored or co-authored
approximately fifty papers dealing with various aspects of diagnostic radiology. (OX 19)
Moreover, much of Dr. Wiot's experience involves the area of pneumoconiosis. (OX 19)

Thus, although both Dr. Cappiello and Dr. Wiot are board certified radiologists and B-
Readers, the undersigned finds Dr. Wiot to have vastly superior qualifications. His interpretation
is thus given greater weight.

An x-ray dated September 9, 2002 was read as being negative for pneumoconiosis by
Drs. Repsher and Wiot. (OX 23, OX 21) It was read as III by Dr. Ahmed and lIO by Dr.
Cappiello. (CX 7, CX II) For the reasons noted above, Dr. Wiot's interpretation is given
greater weight than Dr. Cappiello's interpretation.

Dr. Ahmed is board certified in radiology. (CX 8) He is also a B-reader. (CX 8) He is
currently the attending radiologist at Princeton Community Hospital in Princeton, WV. (CX 8)
He was a resident in diagnostic radiology, an attending radiologist and an instructor in radiology

5 This is the only information that can be determined from Dr. Cappiello's Curriculum Vitae. Dr. Cappiello
submitted a two-page Curriculum Vitae, however it appears that the second page of this report is a piece of Dr.
Ahmed's Curriculum Vitae, given that license numbers listed on the second page of Dr. Cappiello's Curriculum
Vitae are the same license numbers that appear on the first page of Dr. Ahmed's Curriculum Vitae.
6 He was also the Co-Director of the Department of Radiology at the Cincinnati General Hospital (1966-1967), the

Associate Director of the Department of Radiology at the Cincinnati General Hospital (I 963-1966) and the Assistant
Director of the Department of Radiology at the Cincinnati General Hospital (1961-1963). (EX I)
7 He was also the Professor of Radiology at the University of Cincinnati (1966-1998), the Associate Professor of
Radiology at the University of Cincinnati (1962-1966) and the Assistant Professor of Radiology at the University of
Cincinnati (1959-1962). (EX I)

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at Mt. Sinai Medical Center. (CX 8) He is also a member of the American College of Radiology
and the Radiological Society of North America. (eX 8) He has received substantial continuing
medical education in the field of radiology. Dr. Repsher is a B-Reader. (OX 22) He had a
fellowship in pulmonary and critical care medicine (1970-1972). (OX 22) He has an academic
appointment as Associate Clinical Professor of Medicine Division of Pulmonary Sciences at the
University of Colorado. (OX 22) He has written several journal articles and spoken at multiple
symposiums on the topic of pulmonary medicine, including COPD. (OX 22)

As is noted above, readings by physicians who are both Board-certified radiologists and
B-Readers are generally entitled to the greatest weight. Roberts v. Bethlehem Mines Corp., 8
BLR 1-211, 1-213 (1985). Thus, Dr. Ahmed's reading is entitled to greater weight than Dr.
Repsher's reading.

X-rays dated June 14, 2005 and March 22, 2006 were also read by Drs. Cappiello and
Wiot. For the reasons stated above, although both Dr. Cappiello and Dr. Wiot are board certified
radiologists and B-Readers, the undersigned finds Dr. Wiot to have superior qualifications. His
interpretation of each of these x-rays is thus given greater weight than Dr. Cappiello's
interpretation of each of these x-rays.

In this case, the Claimant bears the burden of proof. After reviewing the qualifications of
the physicians reading the reports, I find that the Claimant has not established the presence of
pneumoconiosis pursuant to §718.202(a)( 1).

A utopsy/fJiopsy .!reports.'

No autopsy or biopsy reports are present in the record. Therefore, the Claimant has not
established the presence of pneumoconiosis pursuant to § 718.202(a)(2).

Establishing Pneumoconiosis Pursuant to f 718.202(0)(3)

The presumptions described in §§ 718.304, 718.305 and 718.306 are not applicable.
Therefore, the Claimant has not established the presence of pneumoconiosis pursuant to §
718.202(a)(3).

Medical.!reports

Under § 718.202(a)(4), a determination of pneumoconiosis may also be made if a
physician, exercising sound medical judgment, notwithstanding a negative x-ray, finds that the
miner suffered from pneumoconiosis as defined in § 718.20 I.

Medical reports should be well-reasoned and well-documented. Case law has established
what a well-reasoned, well-documented medical report entails. A "documented" opinion is one
that sets forth the clinical findings, observations, facts and other data on which the physician
based the diagnosis. Fields v. Island Creek Coal Co., 10 B.L.R. 1-19, 1-22 (1987). An opinion
may be adequately documented if it is based on items such as a physical examination, symptoms,
and the patient's history. See Hoffman v. B & G Construction Co., 8 B.L.R. 1-65, 1-66 (1985);

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Hess v. Clinchfield Coal Co., 7 B.L.R. 1-295, 1-296 (1984). A "reasoned" opinion is one in
which the administrative law judge finds the underlying documentation adequate to support the
physician's conclusions. See Fields, 10 B.L.R. at 1-22.

Dr. Mark Shockey

On April 4, 2002, the Claimant was examined by Dr. Mark Shockey. (OX 11) The
Claimant noted that, since May \989, he had been employed by the Employer as a safety
inspector and shift foreman. (OX II) The Claimant also noted that, from 1962 until 1992, he
smoked approximately one pack of cigarettes per day. (OX II)

The Claimant told Dr. Shockey that he experienced a small amount of daily sputum,
occasional coughing, and dyspnea. (OX 11) His dyspnea prevented him from walking more
than one mile on level ground or climbing two flights of stairs without becoming winded. (OX
II)

Dr. Shockey's physical examination of the Claimant revealed rales and wheezes. (OX
II) A chest x-ray showed COPO and coal workers' pneumoconiosis. (OX 11, OX 16) The
venti latory study report revealed moderate obstruction. (OX II, OX 15) The arterial blood gas
study report revealed low blood gas values. (OX II, OX 15)

Dr. Shockey concluded that the Claimant had coal workers' pneumoconiosis and COPO
due to the Claimant's coal mine employment and history of smoking. (OX II) Dr. Shockey
believed that the COPO and the coal workers' pneumoconiosis caused mild impairment. (OX
II)

The undersigned finds Dr. Shockey'S opinion, which is based upon physical examination,
test results, x-ray reports, and the Claimant's work, social and medical histories, to be well-
documented and well-reasoned.

Dr. Lawrence Repsher

Dr. Repsher examined the Claimant in September of 2002. (OX 23) The Claimant
informed Dr. Repsher that he had worked as an underground coal miner for approximately thirty
years. (OX 23) Most recently, he had been employed as an acting general mine foreman. (OX
23)

When asked about his smoking history, the Claimant stated that he smoked one pack per
day for approximately thirty years. (OX 23) He had quit smoking between seven and ten years
earlier. The Claimant noted that he had smoked a pipe transiently, but "never inhaled." (OX 23)
The Claimant also told Dr. Repsher that he chewed tobacco. (OX 23)

The Claimant denied any respiratory symptoms, other than slowly progressive mild
dyspnea on exertion. (OX 23) He denied any cough, chills, fevers, sweats or weight loss. (OX
23) A physical examination of the Claimant revealed nothing abnormal. (OX 23) Height was
measured at seventy-two inches and weight was 239 pounds. (DX 23)

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Dr. Repsher read the Claimant's x-ray as showing no evidence of coal workers'
pneumoconiosis. (OX 23) Pulmonary function tests revealed "mild COPD without immediate
bronchodilator response. Lung volumes were normal. The diffusing capacity is mildly reduced,
consistent with mild emphysema." (OX 23) The arterial blood gas values were decreased. (OX
23)

Dr. Repsher concluded that there was "no evidence of coal workers' pneumoconiosis,"
that there was "mild COPO of no present clinical significance," that the Claimant had "moderate
hypoxemia at rest, of no present clinical significance, since there is no evidence of even early cor
pulmonale," and that there was "probable, mild, residual cigarette smoking habit." (OX 23) Dr.
Repsher stated that, "as a result of the above, it is my opinion that [the Claimant] is not now and
never has suffered from coal workers' pneumoconiosis or any other pulmonary or respiratory
condition, either caused by or aggravated by his employment with Blue Mountain Energy
Company as an underground coal miner." (OX 23)

Dr. Repsher based this opinion on multiple things. First, the Claimant had "no chest x-
ray evidence of coal workers' pneumoconiosis." (OX 23) Second, the Claimant had "no
pulmonary function test evidence of coal workers' pneumoconiosis. Coal workers'
pneumoconiosis, when clinically significant, is primarily a restrictive disease. [The Claimant]
has pure obstructive disease, which is a characteristic finding of cigarette smoking induced
COPO and emphysema." (OX 23) Third, the Claimant's "symptoms of dyspnea on exertion are
most likely due to his obesity and relatively sedentary life style." (OX 23)

The Claimant argues that Dr. Repsher's medical report must be completely discredited
because of his statement that "[c]oal workers' pneumoconiosis, when clinically significant, is
primarily a restrictive disease. [The Claimant] has pure obstructive disease, which is a
characteristic finding of cigarette smoking induced COPO and emphysema." (OX 23) The
Claimant believes that this statement goes against the position taken by the Department of Labor
that the inhalation of coal mine dust can cause obstruction.

It is true that a physician's opinion cannot be given credit if it is hostile to the Act. See
Wetherill v. Green Construction Co., 5 B.L.R. 1-248, 1-252 (1982). However, Dr. Repsher did
not state that the inhalation of coal mine dust cannot cause obstruction. He stated that coal
workers' pneumoconiosis is primarily a restrictive disease. He did not determine that coal
workers' pneumoconiosis was only a restrictive disease. Thus, Dr. Repsher's opinion is not
deemed to be hostile to the Act. 8 Therefore, Dr. Repsher's report will not be discredited.

Moreover, Dr. Repsher based his opinion that the Claimant did not have coal workers'
pneumoconiosis or any respiratory condition caused by his coal mine work on more than simply
his finding that coal workers' pneumoconiosis may be a restrictive disease. He also looked at x-
ray evidence and based his findings on his physical examination of the Claimant and the

8 See Stilner v. Island Creek Coal Co., 86 F.3d 337 (4th Cir. 1996)(holding that a physician's opinion should not be
discredited merely because he states that the miner "likely" would have exhibited a restrictive impairment in
addition to chronic obstructive pulmonary disease ifhe had coal workers' pneumoconiosis).

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Claimant's work, social and medical histories. Therefore, Dr. Repsher's report will be given
equal weight.

Dr. Joseph Renn

Dr. Renn was board certified in internal medicine and in pulmonary disease and was a 8-
reader of x-rays. (EX 10) Dr. Renn relied on treatment records, pulmonary function tests,
arterial blood gas tests, medical reports from Drs. Shockey and Repsher, CT scans and x-ray
reports when drafting his independent medical review of the Claimant. (EX 4) From the
information contained in the above-mentioned sources, Dr. Renn was able to obtain an
understanding of the Claimant's occupational history, the Claimant's history of tobacco use and
the Claimant's past medical history. (EX 4)

After reviewing the above-mentioned information related to the Claimant's respiratory
system, Dr. Renn determined that the Claimant had "very mild COPD owing to tobacco
smoking" as well as a "very mild obstructive ventilatory defect." (EX 4). He also determined
that "pneumoconiosis does not exist." (EX 4)

Dr. Renn stated that the Claimant was "a sixty-two year-old who ... does not have
pneumoconiosis." (EX 4) He concluded that

it is with a reasonable degree of medical certainty that none of the above
diagnoses were either caused, or contributed to, by his exposure to coal mine dust.
It is with a reasonable degree of medical certainty that his very mild CO PO is a
result of his years of tobacco smoking rather than exposure to coal mine dust.

(EX 4)

Dr. Renn further concluded that, "when considering only his respiratory system, it is with
a reasonable degree of medical certainty that he is not totally and permanently impaired to the
extent that he would be unable to perform his last known coal mining job as safety inspector and
shift foreman or any similar work effort." (EX 4).

In a deposition taken on June I, 2006, Dr. Renn stated that his finding, that the
Claimant's mild obstructive breathing impairment was not related to coal mine dust, was based
on

the fact that [the Claimant] had the pattern ... that showed that his obstructive
airway disease is a result of tobacco smoking; that being the fact that his FEF 25-
75 is disproportionately reduced when compared with his peak expiratory flow
rate and his FEY J. That is the pattern of tobacco smoking. It is not the pattern of
a person with medical coal workers' pneumoconiosis or coal mine dust-induced
obstructive airway disease. Then, in 2002, he had a reduction of his diffusing
capacity which was at that time by a percentage mildly reduced, but was normal
when it was corrected for the alveolar volume. That, too, is a pattern consistent

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with tobacco smoking but not consistent with a disease caused by coal workers'
• • 9
pneumoconIosIs.

(EX 10, pg. 6-7)

Further, on cross-examination, when the Claimant's counsel stated, "so, you found no
medical coal workers' pneumoconiosis present here and you testified that was based on the
absence of restriction on the pulmonary function test," Dr. Renn stated that his determination
was also based on x-ray evidence and "the pattern ofthe dynamic ventilatory function in that [the
Claimant] had obstructive airways disease, which could be consistent with coal workers'
pneumoconiosis, but the pattern that he had is consistent ""Yith tobacco smoke-induced
obstructive airways disease." (EX 10, pg. 50-51) Thus, Dr. Renn attributed all ofthe Claimant's
obstruction to his smoking history. (EX 10, pg. 51)

When asked if the Claimant had any coal mine dust-related disease causing him
impairment, Dr. Renn said "no." (EX 10, pg. 40) Dr. Renn stated that the exercise test in 2005
showed that there was no wasted ventilation and that fitness might be limited by heart disease.
(EX 10) He testified that the Claimant's blood gas abnormality was not related to coal mine
work as he would have associated diminished breathing reserve. (EX 10) The Claimant
exercised to 5.9 mets which was beyond the required exertion level in the mines. (EX 10) The
physician attributed the gas exchange abnormality to smoking rather than to mining. (EX 10).

The undersigned finds Dr. Renn's opinion, which is based upon treatment records, the
Claimant's work, social and medical histories, and other physicians' medical reports, test results,
and x-ray reports to be well-documented and well-reasoned.

Dr. Robert Cohen

In June of2005, the Claimant was examined by Dr. Robert Cohen. (CX 5) The Claimant
informed Dr. Cohen that his chief complaint was shortness of breath. (CX 5) The Claimant
stated that his shortness of breath began five to seven years before, but had gotten worse in the
preceding two years. (CX 5) The Claimant also complained of a cough, which started
approximately five years before, but had gradually worsened. (CX 5) Further, he noted sputum
production, which began two years before, but had also gradually worsened. (CX 5)

The Claimant also informed Dr. Cohen that he had been employed as an acting general
foreman with Blue Mountain Energy from 200 I until 2004. (CX 5) He stated that he spent most
of his time underground and that he had to do some hands-on work, including performing a
complete examination of the mine. (CX 5) He told Dr. Cohen that he walked ten miles per day
and often had to lift and carry objects weighing up to 100 pounds. (CX 5) He stated that he did
not have any difficulty lifting items like logs, but that he experienced "difficulty moving them

9 Dr. Renn bases this determination, in part, on the NIOSH publication entitled "The Criteria for Recommended
Standard Occupational Exposure to Respirable Coal Mine Dust." (EX 10, pg. 53) Dr. Renn also cited to other
publications in support of his conclusions. These publications were all admitted into the record as attachments to
Dr. Renn's deposition.

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from one place to another which was getting worse gradually." (CX 5) He noted that he wore a
respirator mask between five and ten percent of the time. (CX 5)

The Claimant also told Dr. Cohen that he smoked an average of one pack of cigarettes
per day between 1962 and 1996, excepting three years during the 1980s when he quit cigarettes
and instead smoked, but did not inhale, a pipe 1-3 times per day. (CX 5) He smoked a pipe 1-3
times a day again between 1996 and 2000. (CX 5)

Dr. Cohen's physical examination of the Claimant revealed nothing abnormal. (CX 5)
As part of his examination, Dr. Cohen took an x-ray of the Claimant and performed an arterial
blood gas study and a pulmonary function study.IO

Based upon his own examination of the Claimant, the results of the tests he performed on
the Claimant, the Claimant's work, medical and smoking histories, and a review of multiple
treatment records and prior medical reports, Dr. Cohen concluded that the Claimant had
pneumoconiosis. II (CX 5)

The physician stated that he disagreed

with Dr. Renn's and Dr. Repsher's opinions that [the Claimant] has very mild
COPD due to smoking and not pneumoconiosis. He does have a mild
obstructive impairment on spirometry, but severe diffusion impairment as well
as severe gas exchange abnormalities with exercise. These impairments are
caused by his exposure both to coal mine dust and to tobacco smoke. His P0 2
measured in the 50's is quite significant and means there is a significant loss in

10 The results of this x-ray will not be considered, since the Claimant has already designated two other x-ray

interpretations in support of his affirmative case. Since the limitations set forth in 20 C.F.R. § 725.414 (2003) are
mandatory and cannot be waived, no x-ray reading by Dr. Cohen may be considered. The results of the blood gas
study and the pulmonary function study, in contrast, may be considered, since the Claimant identified these studies
by Dr. Cohen as part of his evidence on the Evidence Summary Form, and since the Claimant did not submit more
blood gas or pulmonary function studies than the Regulations permit. Spirometry revealed a normal FYC and a
mildly reduced FEY I . (CX 5) Blood gases showed mild respiratory alkalosis. (CX 5) There was no significant
response to bronchodilators. (CX 5) An exercise tolerance test went for about eleven minutes and was stopped due
to leg fatigue and dyspnea. (CX 5)
II Dr. Cohen based his opinion that the Claimant had pneumoconiosis on mUltiple factors, including x-ray evidence.

This included Dr. Cohen's reading as well as a September 9, 2002 reading by Dr. Wiot finding no pneumoconiosis,
an April 4, 2002 reading by Dr. Shockey, who Dr. Cohen noted was not a B-Reader nor a board certified radiologist,
finding a III profusion of opacities, an April 4, 2002 reading by Dr. Wiot finding no pneumoconiosis, a September
7,2001 reading by Dr. Bechtel noting subtle nodularity suggesting coal workers' pneumoconiosis, and a letter dated
January 2, 2001 stating that the Claimant had coal workers' pneumoconiosis. (CX 5)
As is noted above, the x-ray reading by Dr. Cohen and the January 2, 2001 letter are inadmissible. Given
the remaining x-ray evidence available to Dr. Cohen, it seems unlikely that a finding of clinical pneumoconiosis
could be maintained. However, Dr. Cohen stated in his opinion that a lack of positive x-ray reports "would not
change [his] opinion that [the Claimant] has substantial historical and physiological evidence of coal workers'
pneumoconiosis related to coal dust exposure." (CX 5) Moreover, Dr. Cohen's finding of legal pneumoconiosis
was based on a vast array of information besides the x-ray evidence, including the Claimant's thirty year history of
coal mine employment, physical symptoms consistent with chronic lung disease, the results of the pulmonary
function and cardiopulmonary exercise testing and the lack of exposure to other occupational hazards that would
explain his physical problems. Thus, Dr. Cohen's opinion that the Claimant has legal pneumoconiosis is well-
documented and well-reasoned and will therefore receive equal weight.

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[the Miner's] ability to transfer oxygen to exercising tissues. I disagree with Dr.
Repsher's opinion that [the Miner's] hypoxemia is of no clinical significance
and that his symptoms of dyspnea are explained by obesity and relatively
sedentary life style. He has a clearly abnormal ventilatory limit to exercise and
abnormal gas exchange. This is not due to obesity. People may be dyspneic
due to obesity, but they would not have the objective findings of diffusion
impairment and gas exchange with exercise that [the Claimant] has.

(ex 5).
Dr. John Parker

Dr. Parker reviewed treatment records, medical reports and the Claimant's social, work
and medical records. (CX 6) In April of2006, Dr. Parker drafted a report based upon his review
of the above-mentioned information. (CX 6) The physician stated that

[i]n view of the above medical records and employment history it is my medical
opinion that [the Claimant] suffers from pneumoconiosis, manifested as a[n]
obstructive lung disease, with an FEV, revealing mild but gradually progressing
reductions.'2 His FEY,IFYC ratio has also overall become progressively
reduced over time, making it clear that he has an obstructive impairment. His
two most recent PFTs show very little improvement with bronchodilators,
making it clear that asthma is not the source of his obstruction. His lung
volumes show that restrictive disease does not account for his impairment. As
has been seen in significant subsets of coal miners, [the Claimant's] arterial
blood gas studies reveal a substantial impairment, beyond what is seen on the
spirometry. The recent cardiopulmonary study is very strong evidence for a
significant functional impairment due to chronic respiratory disease. [The
Claimant] also has a quite severely reduced diffusing capacity, which further

12 Dr. Parker based his opinion that the Claimant had pneumoconiosis on multiple factors, including x-ray evidence.
(CX 6) This included Dr. Cohen's x-ray reading as well as a September 9, 2002 reading by Dr. Wiot finding no
pneumoconiosis, an April 4, 2002 reading by Dr. Shockey finding a 111 profusion of opacities, an April 4, 2002
reading by Dr. Wiot finding no pneumoconiosis, a September 7, 2001 reading by Dr. Bechtel noting subtle
nodularity suggesting coal workers' pneumoconiosis, and a letter dated January 2, 2001 stating that the Claimant
had coal workers' pneumoconiosis. (CX 6)
As is noted above, the x-ray reading by Dr. Cohen and the January 2, 2001 letter are inadmissible. Given
the remaining x-ray evidence available to Dr. Parker, it seems unlikely that a finding of clinical pneumoconiosis
could be maintained.
However, it does not appear that Dr. Parker ever even made a finding of clinical pneumoconiosis. He
stated that "[i]n rendering this opinion, I am aware that a number of x-ray interpretations have been reported to be
negative for the classical lesion of coal workers' pneumoconiosis .... [However,] the epidemiological evidence for a
causal link between coal dust and COPD (even in the absence of chest x-ray evidence for opacities consistent with
CWP) is massive and irrefutable." (CX 6)
Further, Dr. Parker's finding of legal pneumoconiosis is based upon multiple factors other than the x-ray
reports, including medical reports, test results, and the Claimant's social, work and medical histories.
Thus, Dr. Parker's report is considered to be well-documented and well-reasoned and will therefore receive
equal weight.

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confirms the substantial nature of his impairment and progressively worsening
hypoxemia, with normal lung volumes. [The Claimant's] COPD with
moderately severe hypoxemia and diffusing impairment is caused in substantial
part by both his 30 years of coal mine employment, ending in 2004 and by his
approximately 30 pack year smoking history ending around 1996 ....
Concerning the opinions of Dr. Renn and Dr. Repsher, attributing [the
Claimant's] COPD solely to smoking, I cannot agree in view of the
epidemiological evidence, the particular history of [the Claimant's] coal mine
work and smoking, and the clinical evidence and progression, as discussed
above. I also disagree with their opinions that [the Claimant] is not disabled.

(CX 6) Dr. Parker then stated,

[i]n my opinion, [the Claimant's] respiratory disorder is substantially due to his
occupational exposure to coalmine dust and clearly not only the result of
tobacco smoke. In addition, his respiratory impairment would prevent the
performance of his last coalmine job. I also note that in fact [the Claimant] had
a complete cardiopulmonary exercise test, which revealed significant gas
exchange limitation due to exercise, which was clearly due to his
pneumoconiosis. This is the best evidence we have for his inability to do
physically demanding work.

(CX 6).

Dr. Parker's report is considered to be well-documented and well-reasoned.

Supplemental Reports

On July 10, 2006, Dr. Cohen reviewed the hearing transcript and Dr. Renn's deposition.
(CX 13) Dr. Cohen disagreed with Dr. Renn's determination that the Claimant's FEF 25-75
rules out coal dust exposure as a cause of lung disease. (CX 13) Dr. Cohen further disagreed
with Dr. Renn's finding that the Claimant's pattern of diffusion impairment rules out coal mine
dust exposure as a cause ofthe Claimant's lung disease. (CX 13) Dr. Cohen stated that

It remains my opinion, even after reviewing the deposition and hearing
testimony discussed above, and the comments made by Drs. Renn and Repsher,
that the sum of the medical evidence in conjunction with this patient's work
history still indicate that the miner's 30 years of coal mine dust exposure as well
as his 30 pack years of exposure to tobacco smoke were significantly
contributory to the development of his mild obstructive lung disease, diffusion
impairment, and gas exchange abnormalities on arterial blood gases. This
degree of impairment is clearly disabling for the heavy labor of his last coal
mining job as an acting general foreman.

(ex 13).

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On July 31, 2006, Dr. Renn noted that he had reviewed the Claimant's testimony
detailing his job duties. (EX 13) He stated that his review of these duties did not change his
opinion that the Claimant was able to perform his previous job. 13 (EX 13) On September 18,
2006, Dr. Renn responded to Dr. Cohen's July 2006 report. (EX 14) Dr. Renn stated that "Dr.
Cohen has mischaracterized my deposition testimony. My opinion is that the FEF 25-75 is
disproportionately reduced in those individuals in whom it has been affected by tobacco smoke
whereas in those in whom it has been affected by coal mine dust exposure or the development of
coal workers' pneumoconiosis it is proportionately reduced." (EX 14) Further, concerning
whether the Claimant's pattern of diffusion impairment rules out coal mine dust exposure as a
cause of lung disease, Dr. Renn stated,

Dr. Cohen has stated that the OlIVa 'does not add much useful information.'
Johnson addressed the question of the validity of the OLCP and the OlIVa. He
evaluated 2,313 patients. There were subgroups of patients with asthma,
emphysema, extrapulmonary lung disease, interstitial lung disease and lung
resection. He stated, 'unadjusted OLCO and KCO percent predicted values
showed large differences and much variability, so can be misleading. As
expected, KCO and OLCO were nearly identical.' That is the OlIVa. He further
stated, 'Adjusting predicted OLCO and KCO for alveolar volume provides a
better assessment of lung function.' Thusly is Dr. Cohen's contention effectively
controverted. In response to his comments regarding the levels of diffusion
impairment in coal miners, I believe my deposition testimony and the scientific
articles themselves attest strongly to the validity of my statements. It speaks
volumes that Dr. Cohen remained silent in regard to several of the scientific
articles. He mentioned the paucity of subjects in the 1982 article. However, he
did not mention that 511 coal workers were studied by Wang and Christiani,
including those having chest radiographs in stages 0 through category 3. I view
his failure to reply to all of the findings published in the scientific treatises to
which I referred as denoting his inability to refute them with scientific literature
of equal standing.

(EX 14)

Dr. Renn also stated,

... It remains my OpinIOn, even after reviewing Dr. Cohen's Second
Supplemental Consulting Medical Opinion, that [the Claimant] does not have a
coal mine dust-related disease that is causing him impairment. Further, he does
not have a totally-impairing either pulmonary or respiratory impairment from
any cause.

(EX 14).

13 Based on this supplemental report, the undersigned finds that Dr. Renn had a complete picture of the Claimant's
work history and previous job duties.

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Dr. Cohen responded to Dr. Renn's September 2006 remarks on October 19,2006. Dr.
Cohen stated,

Dr. Renn seems to think he can distinguish coal dust induced impairment from
tobacco smoke induced impairment based on the reduction in the FEF 25-75.
There is no basis whatsoever for this argument in the medical literature. The
FEF 25-75 is not a good indicator of "small airways disease" and is only used as
an indicator of early airway obstruction.

(CX 14) Dr. Cohen then stated that the pattern of diffusion impairment did not rule out coal
mine dust exposure as a cause of the Claimant's lung disease. Dr. Cohen stated,

Dr. Renn continues to support his opinion that the DINa is a useful
measurement for distinguishing patterns of lung disease and cites an article
published in the year 2000 which "effectively controverted" my opinion. The
fact remains, regardless of what Dr. Renn thinks, the DINa does not give us
much useful information and certainly cannot be used to determine whether or
not coal mine dust is a cause of diffusion impairment. Not only does the AMA
guides not even list the DINa in their tables, but the most recent American
Thoracic Society and European Thoracic Society joint statement, published in
2005 after an extensive review of the literature also does not recommend giving
this measurement any significant interpretive value.

(CX 14)

Finally, Dr. Cohen determined that

[ilt remains my opinion, even after reviewing the additional comments made by
Dr. Renn, that the sum of the medical evidence in conjunction with this patient's
work history still indicate that the miner's 30 years of coal mine dust exposure
as well as his 30 pack years of exposure to tobacco smoke were significantly
contributory to the development of his mild obstructive lung disease, diffusion
impairment, and gas exchange abnormalities on arterial blood gases. This
degree of impairment is clearly disabling for the heavy labor of his last coal
mining job as an acting general foreman.

(CX 14).

Both the Employer and the Claimant submitted the above-listed supplemental reports as
evidence in this trial. These reports were sent to the undersigned as either rebuttal evidence or
rehabilitative evidence. The Regulations state that rebuttal evidence may consist of "no more
than one physician's interpretation of each chest x-ray, pulmonary function test, blood gas study,
autopsy or biopsy" that has been submitted by the opposing party. 20 C.F.R. §§
725.414(a)(2)(ii); 725.414(a)(3)(ii) (2003).

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When a party's rebuttal evidence tends to undermine the conclusion of a physician who
prepared a medical report for the opposing party, that physician is entitled to submit an
additional statement explaining his conclusion in light of the rebuttal evidence. 20 C.F.R. §§
725 .414(a)(2)(ii); 725 .414(a)(3 )(ii) (2003).

The evidence submitted by the parties in this case, which consisted of reports by Dr.
Cohen reiterating why he believed that the Claimant did suffer from clinical and legal
pneumoconiosis that was totally disabling and reports by Dr. Renn reiterating why he did not
believe that the Claimant suffered from clinical or legal pneumoconiosis that was totally
disabling, cannot properly be considered to be rebuttal or rehabilitative evidence. These reports
do not meet the requirements for rebuttal or rehabilitative evidence set forth in 20 C.F.R. §§
725.414(a)(2)(ii); 725.414(a)(3)(ii) (2003).

These reports are admissible, however, as supplemental opInIons. See Stamper v.
Westerman Coal Co., BRB No. 05-0946 BLA (July 26, 2006) (unpub.)(upholding the AU's
finding that Dr. Baker's October 2000 report was a "supplemental opinion, in that it simply
expounds on Dr. Baker's May 29, 1997 examination and report .... " Id.).

The undersigned finds all of these supplemental reports to be well-documented and weIl-
reasoned.

CT Scans

The Board has determined that CT scan evidence should be weighed separately from the
chest x-rays. Melnick v. Consolidation Coal Co., 16 B.L.R. 1-31 (1991)(en banc).

In the present case, the Employer submitted Dr. Jerome Wiot's interpretation of a CT
scan dated February 9, 1998. (EX 1) Dr. Wiot determined the films were of an acceptable
quality by ILO standards. (EX I) He further stated that the CT scan showed "no evidence of
coal workers' pneumoconiosis. There are a few small nondescript nodules noted and a patchy
area of air space disease in the superior segment of the right lower lobe. This is not a
manifestation of coal dust exposure." (EX 1) 14

The CT scan evidence fails to establish that the Claimant suffers from coal workers'
pneumoconiosis.

Treatment Records

In Dempsey v. Sewell Coal Co., 23 B.L.R. 1-47 (2004) (en banc), the Board held that
treatment records, containing mUltiple pulmonary function and blood gas studies that exceed the
limitations at § 725.414, are properly admitted. This is so regardless of whether the records are
offered by a claimant or an employer.

14 Other CT scans which were taken in the course of the Claimant's general medical treatment are also included in

the record as treatment records. These CT scans do not discuss the presence or absence of pneumoconiosis.

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In the present case, treatment records were submitted into evidence. In February 1998, at
St. Mary's Hospital, the Claimant underwent a fiberoptic bronchoscopy. The diagnosis was
"improving hemoptysis and resolving infiltrate, possibly due to bronchitis or pneumonitis." (EX
9)

In September 2000, the Miner was evaluated at the Rangely Family Medicine Encounter.
Complaints included shortness of breath on walking. (EX 8) Spirometry revealed a 15%
improvement after bronchodilator therapy. (EX 8) Impressions were chronic obstructive
pulmonary disease with reversibility and fatigue. (EX 8).

In September 200 I, the Claimant reported dyspnea on climbing a grade to Dr. Bechtel.
(EX 6) Spirometry in September 2000 had shown moderate lung disease with a significant
response to bronchodilators. (EX 6) Examination was negative except for a little wheeze on the
right and a small amount of sputum production. (EX 6)

Conclusion

Based upon all of the afore-mentioned evidence, the undersigned must now determine
whether the Claimant has established, through medical reports, that he has pneumoconiosis.

As is noted above, under § 718.202(a)(4), a determination of pneumoconiosis may be
made if a physician, exercising sound medical judgment finds that the miner suffered from
pneumoconiosis as defined in § 718.20 I.

Pneumoconiosis is defined 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 (2003).

Clinical pneumoconiosis is defined as "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." 20 C.F .R. § 718.201
(2003). This includes, "but is not limited to, coal workers' pneumoconiosis." Id.

Dr. Shockey concluded that the Claimant had coal worker's pneumoconiosis, based on x-
ray evidence. (OX 11) Dr. Repsher determined, based on his examination of the x-rays, that the
Claimant had no evidence of coal workers' pneumoconiosis. (OX 23) Dr. Renn also
determined, with a reasonable degree of medical certainty, that the Claimant did not have
pneumoconiosis. (EX 4) Dr. Cohen found that the Claimant had pneumoconiosis. (CX 5)
However, as is noted above, Dr. Cohen relied upon inadmissible x-rays when making this
determination. Given the x-ray evidence available to Dr. Cohen after discounting the
inadmissible reports, it seems unlikely that a finding of clinical pneumoconiosis could be
maintained. It appears that Dr. Parker only made a finding of legal pneumoconiosis. (CX 6)
However, even if Dr. Parker had made a finding of clinical pneumoconiosis, he, like Dr. Cohen,

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relied upon inadmissible x-ray reports. Thus, a finding of clinical pneumoconiosis could not be
maintained by Dr. Parker either.

The medical reports in this case do not establish the existence of clinical 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." 20 C.F.R. §
718.20 I (2003)(emphasis added).

There is clearly a difference of opinion among well-qualified physicians who have given
detailed statements in this case concerning whether the Claimant has legal pneumoconiosis.

Dr. Shockey concluded that the Claimant had COPD due to the Claimant's coal mine
employment and history of smoking. (OX II)

Dr. Repsher found "mild COPD of no present clinical significance." (OX 23) He
concluded that the Claimant has never suffered from any pulmonary or respiratory condition,
either caused by, or aggravated by, his employment with Blue Mountain Energy. (OX 23)

Dr. Renn determined that the Claimant had very mild COPD due to his history of
smoking, as well as a very mild obstructive ventilatory defect. (EX 4). He stated, with a
reasonable degree of medical certainty, that the Claimant did not have pneumoconiosis. (EX 4)
He also noted that, while pneumoconiosis can manifest itself as obstructive airway disease, the
Claimant's pattern of obstruction proved that the Claimant's obstructive airway disease was due
to tobacco smoking. (EX 4) Dr. Renn offered extensive research to support this opinion. (EX
10, EX 14) He cited to multiple articles from medical journals such as the American Journal of
Industrial Medicine and the British Journal of Occupational and Environmental Medicine. (EX
10) His opinion is considered to be well-reasoned and well-supported.

Dr. Cohen disagreed with Dr. Renn's and Dr. Repsher's opinions that Claimant's very
mild COPD was due to smoking and not pneumoconiosis. (CX 5) He concluded that the
Claimant had mild obstructive impairment on spirometry and severe diffusion impairment as
well as severe gas exchange abnormalities with exercise. (CX 5) He believed that these
impairments were caused by his exposure both to coal mine dust and tobacco smoke. (CX 5)
Dr. Cohen's disagreement with Dr. Renn's conclusion that the Claimant's pattern of obstruction
proved that the Claimant's obstructive airway disease was due to tobacco smoking was also well
supported. He, too, cited to multiple studies and articles from medical journals. (CX 13, CX 14)

Dr. Parker stated that it was his opinion that the Claimant suffered from pneumoconiosis,
manifested as an obstructive lung disease, which was caused by both his coal mine employment
and his smoking history. (CX 6)

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All of the physicians are extremely qualified to discuss the Claimant's pulmonary
problems. Except for Dr. Shockey, who did not provide an extensive curriculum vitae,15 all have
had significant experience with internal and pulmonary medicine, including the publication of
articles in this field, professional appointments in the field of pulmonary medicine and teaching
positions at local universities. Further, all of their reports are well-reasoned and well-
documented. Moreover, despite the fact that Drs. Renn and Cohen disagree as to the meaning of
some of the Claimant's test results, their findings and reports are each well-supported.

The undersigned finds that these reports are evenly balanced, and should receive equal
weight. As is noted above, the Claimant bears the burden of establishing the presence of
pneumoconiosis by a preponderance of the evidence. The Claimant has not proven that he has
legal pneumoconiosis.

Since the Claimant has not established the presence of either clinical or legal
pneumoconiosis, the criteria of §718.202(a)(4) has not been met.

Entitlement

The Claimant failed to prove the existence of pneumoconiosis by x-ray, autopsy or
biopsy, or by the report of a physician exercising sound medical judgment stating the Claimant
suffers from pneumoconiosis. Since proving the existence of pneumoconiosis is necessary in
order for the Claimant to receive benefits, his claim must be denied. The Claimant is not entitled
to benefits under the Act.

Attorney's Fees

The award of an attorney's fee under the Act is permitted only in cases in which the
Claimant is found to be entitled to the receipt of benefits. Since benefits are not awarded in this
case, the Act prohibits the charging of any fee to the Claimant for representation services
rendered to him in pursuit of his claim.

ORDER

The claim ofT. G. for benefits under the Act is hereby DENIED.

RICHARD K. MALAMPHY
Administrative Law Judge

RKM/KBE/jcb

15 It is noted, however. that Dr. Shockey is board certified in internal medicine and is designated a diplomate
certified in the subspecialty of pulmonary disease.

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