UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1589
OTHELLO T. MASSEY, survivor of and on behalf of Robert E.
Massey, deceased,
Petitioner,
v.
PEABODY COAL COMPANY; BENEFITS REVIEW BOARD; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States
Department of Labor,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(08-0467-BLA)
Argued: May 12, 2010 Decided: July 6, 2010
Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Nathan J. Marchese, WASHINGTON AND LEE UNIVERSITY
SCHOOL OF LAW, Lexington, Virginia, for Petitioner. Mark
Elliott Solomons, GREENBERG TRAURIG, LLP, Washington, D.C., for
Respondents. ON BRIEF: Timothy C. MacDonnell, WASHINGTON AND
LEE UNIVERSITY SCHOOL OF LAW, Lexington, Virginia, for
Petitioner. Laura Metcoff Klaus, GREENBERG TRAURIG, LLP,
Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After working as a coal miner for 21 years, Robert Massey
applied for benefits under the Black Lung Benefits Act, 30
U.S.C. § 901 et seq., claiming that he suffered from coal-dust
induced pneumoconiosis which caused him to have a total
respiratory disability. When Massey died in March 2003, his
wife, Othello Massey, continued Robert Massey’s claim and filed
an additional claim on behalf of herself for survivor’s
benefits.
Crediting the opinions of several doctors, the
Administrative Law Judge (“ALJ”) found that Robert Massey’s coal
workers’ pneumoconiosis did not cause or contribute to his
respiratory disability, nor did it cause, contribute to, or
hasten his death. Accordingly, the ALJ denied benefits over the
course of three separate opinions examining the medical
evidence. The Benefits Review Board (“BRB”) affirmed, and
Othello Massey filed this petition for review. She contends
that the ALJ failed sufficiently to explain his conclusions and
that he applied an incorrect standard of causation for both
Robert Massey’s disability and his death. Because we conclude
that the ALJ satisfied his duty to explain his decision, that he
applied the correct standard of causation, and that substantial
evidence supports his findings, we deny the petition for review.
2
I
Robert Massey, who smoked 50 packs of cigarettes per year
since 1944, had a complicated medical history, including a
history of coronary artery disease, chronic obstructive
pulmonary disease (“COPD”), pneumoconiosis, peptic ulcer
disease, chronic problems with his right knee, a history of
transischemic attacks, colon cancer, a lumbar laminectomy, and a
bilateral hernia repair. In 2003, he was diagnosed with bone
cancer and myelodysplastic syndrome, a disease characterized by
damage to the bone marrow, which makes it incapable of producing
enough white or red blood cells to fight off infection. He died
in March 2003 from complications due to pneumonia and his
myelodysplastic syndrome.
Massey first applied for black lung benefits in May 1996,
and his claim was referred to an ALJ, who awarded benefits. On
appeal, however, the BRB determined that the ALJ had overlooked
evidence contradicting Massey’s claim, particularly x-ray
evidence that tended to show that Massey did not have
pneumoconiosis, and remanded the case for reconsideration of
that evidence. The BRB also vacated the ALJ’s conclusion that
Massey had proven that pneumoconiosis caused his total
disability. It affirmed, however, the ALJ’s conclusion that
Massey was suffering from a totally disabling respiratory
disease.
3
On remand, the ALJ considered additional evidence and
concluded that Massey suffered from pneumoconiosis but that the
pneumoconiosis did not cause his respiratory disability. He
concluded that smoking was the sole cause of this disability and
that Massey had failed to prove that his pneumoconiosis was a
contributing cause.
Massey filed a petition for modification in December 2000,
submitting new evidence to support his contention that a mistake
had been made. The ALJ examined the new evidence, together with
the original evidence, and concluded that his earlier finding
that Massey had pneumoconiosis was no longer supportable and
that Massey had in fact failed to prove that he had
pneumoconiosis. The ALJ also concluded that because Massey did
not establish that he suffered from pneumoconiosis, he clearly
did not establish that his respiratory impairment was caused by
pneumoconiosis.
After Robert Massey died in March 2003, Othello Massey, his
wife, submitted a claim for survivor’s benefits. She also
continued pursuing her husband’s disability claim. The two
claims were consolidated and assigned to a new ALJ, who received
new evidence in the form of an autopsy of Massey’s lungs and
additional medical reports.
Dr. Tomislav M. Jelic performed the autopsy and found that
Massey had “coal worker’s pneumoconiosis, chronic silicosis,
4
extensive interstitial fibrosis, marked emphysema, acute
exacerbation of chronic bronchitis, extensive adhesions between
the lung and chest wall, as well as acute and organizing
pneumonia.” Dr. Jelic concluded that pneumoconiosis was a
contributing factor to Massey’s death.
Two other pathologists, Dr. Francis H.Y. Green and Dr.
Richard L. Naeye, also examined Robert Massey’s lung tissue and
reached opposite conclusions from one another. Dr. Green
concluded that Massey had two forms of pneumoconiosis -- simple
coal worker’s pneumoconiosis and “dust-induced chronic
obstructive pulmonary disease comprising both chronic bronchitis
and emphysema.” He concluded that “pneumonia was the immediate
cause of death and that the risk factors for this included the
myelodysplastic syndrome as well as the COPD and
pneumoconiosis.” In Dr. Green’s opinion, “pneumoconiosis was
the major causal factor in Mr. Massey’s death
and . . . cigarette smoking and the myelodysplastic syndrome
were significant factors contributing to death.”
Dr. Naeye disagreed with much of Dr. Green’s analysis,
detecting only “minimal findings of coal workers’
pneumoconiosis,” which he believed was consistent with the
medical record developed during Robert Massey’s lifetime. Dr.
Naeye did find severe emphysema and a previous rupture of the
alveolar walls in the lungs, which he believed Dr. Green may
5
have mistaken for interstitial fibrosis. But Dr. Naeye did not
believe that Robert Massey’s coal worker’s pneumoconiosis
contributed to his emphysema or respiratory disability in any
way. Rather, he believed that the emphysema was caused
exclusively by Massey’s history of smoking, noting that
“[c]igarette smoking makes a several-fold greater contribution
to the genesis of [emphysema and chronic bronchitis] than does
prolonged exposure to coal mine dust.” Dr. Naeye concluded:
Taking all of these findings into consideration there
is no possibility that [coal worker’s pneumoconiosis]
caused any disability or contributed in any way to the
disability or death of Robert Massey. His death was
entirely the consequence of a myeloproliferative
disorder that has not been linked to occupational
exposures to coal mine dust. Whatever abnormalities
he had in lung function were almost certainly the
consequence of his heavy cigarette smoking that
continued until the last years of his life.
J.A. 852.
In addition to the pathology reports, Othello Massey
presented the ALJ with the opinions of Drs. Robert Cohen and
Donald Rasmussen, in which they concluded that Robert Massey’s
lung impairment was caused by inhalation of coal dust and that
this predisposed him to develop the pneumonia that ultimately
caused his death. The employer, Peabody Coal Company, presented
the contrasting opinions of Drs. George Zaldivar, Joseph Renn,
Gregory Fino, and Ben Branscomb, all of whom acknowledged that
Robert Massey had a lung impairment but found that this
6
impairment was attributable solely to his history of smoking and
that the lung impairment nonetheless did not contribute to his
death.
After reviewing the autopsy report, the two other
pathologists’ opinions, and the additional medical opinions and
testimony, the ALJ found that the autopsy of Massey’s lungs
performed after his death clearly established that Massey had
clinical coal workers’ pneumoconiosis. But he also found that
Massey’s COPD, consisting of emphysema and chronic bronchitis,
was due exclusively to Massey’s history of smoking rather than
his coal dust exposure. The ALJ explained that he found the
opinions of Drs. Zaldivar, Renn, Fino, and Branscomb more
persuasive than those of Drs. Cohen, Rassmusen, and Green
because their opinions “did not rely on theoretical
possibilities or unsupported mathematical formulas to support
their findings but referred to specific medical data relating to
the miner.” The ALJ found that the opinions of Drs. Rasmussen,
Cohen, and Green only relied on the fact that some medical
studies showed that coal dust can cause COPD, and “made no
effort to analyze the medical data in this case to determine if
the miner’s obstructive lung disease [was] related to his coal
mine dust exposure.”
The ALJ also found that Robert Massey’s clinical
pneumoconiosis was not the cause of his total respiratory
7
disability, nor did it cause, contribute to, or hasten Massey’s
death. As to disability causation, the ALJ found that the
opinions of Drs. Rasmussen and Cohen were not persuasive because
Dr. Rasmussen’s opinion “was based on theoretical possibilities”
and Dr. Cohen’s opinion “focused primarily on the miner’s
emphysema, which [the ALJ had] previously determined was due
exclusively to cigarette smoking.” And as to death causation,
the ALJ first rejected the opinion of Dr. Jelic because his
qualifications were not in the record and because he did not
provide any basis for his opinion. The ALJ then explained that
he was crediting the opinion of Dr. Naeye over that of Dr. Green
because Dr. Green did not distinguish between Massey’s clinical
pneumoconiosis and his COPD in giving the opinion that Massey’s
lung disease contributed to his death. Because the ALJ had
already found that Massey’s COPD was caused exclusively by his
smoking, he determined that Dr. Green’s “opinion does not meet
the criteria for establishing that the miner’s death was due to
pneumoconiosis.”
Massey appealed the ALJ’s opinion to the BRB, and the BRB
vacated the order on the ground that the ALJ had failed
adequately to explain why he had discounted the opinions of Drs.
Green and Cohen on whether coal dust exposure contributed to
Massey’s COPD.
8
On remand, the ALJ again considered the opinions of Drs.
Cohen and Green and again concluded that the evidence did not
establish that Robert Massey’s COPD was due to his coal-mining
employment. The ALJ explained that he had reconsidered the
opinions of Drs. Cohen and Green, and “acknowledge[d], as the
Board indicated, that both physicians have provided some basis
for their opinions.” Nonetheless, the ALJ explained that he
still found their opinions “less well reasoned and well
documented than the opinions of Drs. Zaldivar, Renn, Fino, and
Branscomb” and that “the opinions of Drs. Zaldivar, Renn, Fino,
and Branscomb [were] better supported by the objective medical
evidence of record than the contrary opinions of Drs. Cohen and
Green.” He explained that Dr. Cohen’s opinion was based on the
claim that centrilobular emphysema is a form of focal emphysema,
which was associated with coal dust exposure, whereas Drs. Naeye
and Zaldivar asserted, even though they too had observed
centrilobular emphysema, that this was not a form of focal
emphysema and that it was typical of and primarily caused by
smoking. While none of the doctors cited any medical literature
to support their findings, the ALJ explained that he found that
the corroborating opinions of Drs. Naeye and Zaldivar outweighed
the opinion of Dr. Cohen. The ALJ concluded:
After reviewing all of the evidence, I find that the
weight of the evidence does not support a finding that
the miner had legal pneumoconiosis. While all of the
9
physicians who rendered an opinion in this case found
that the miner suffered form a severe respiratory
impairment, only Drs. Rasmussen, Cohen, and Green
attributed the miner’s emphysema to a combination of
both coal mine dust exposure and smoking. Drs.
Zaldivar, Renn, Fino, and Branscomb, on the other
hand, found that the miner’s COPD resulted from his
long and heavy smoking history. Dr. Cohen has failed
to provide any support for a finding of legal
pneumoconiosis, and Dr. Green’s analysis of the causes
of the miner’s COPD is contrary to the medical
literature. As a result, I find that the opinions of
Drs. Zaldivar, Renn, Fino, and Branscomb, are well
reasoned and documented, and, therefore, outweigh, the
opinions of Drs. Green and Cohen, which are less well
reasoned and well documented.
J.A. 1415.
Finally, because his finding that Massey did not have legal
pneumoconiosis did not change upon reconsideration of the
opinions of Drs. Green and Cohen, the ALJ held that his
“original findings of disability causation and death causation
[remained] unaffected,” and, accordingly, he again denied
benefits.
Following this denial, Othello Massey filed a motion for
reconsideration which prompted the ALJ to issue yet another
decision, giving additional reasons for rejecting the opinions
of Drs. Green and Cohen. The ALJ found significant the fact
that Drs. Green and Cohen could not distinguish the effects of
smoking and coal dust exposure on developing COPD, while the
other doctors could do so, explaining, “The ability of Drs.
Renn, Fino, Zaldivar, and Branscomb to distinguish the effects
10
of cigarette smoke from coal mine dust casts doubt on the
assertions of Drs. Green and Cohen that the effects are
indistinguishable, and further calls into question their
findings that both coal dust and cigarette smoke are causing the
miner’s pulmonary impairment.” The ALJ also found it
significant that Drs. Green and Cohen conclusively ruled in coal
dust exposure, but not smoking, as a cause of Robert Massey’s
COPD, even as they noted that “the effects of smoking and coal
dust [were] indistinguishable.” Finally, the ALJ held that
“Drs. Green and Cohen have failed to reconcile their opinions on
the cause of the miner’s pulmonary impairment with some of the
objective medical evidence of record,” including the facts that
some pulmonary function studies showed that Robert Massey’s
condition was partially reversible and that Massey continued to
smoke heavily for years after he ceased working in the coal
mines. The ALJ summarized his findings as follows:
I find that the well reasoned and well documented
opinions of Drs. Fino, Renn, Zaldivar, and Branscomb
are entitled to greater weight than the contrary
opinions of Drs. Green and Cohen. The opinions of
Drs. Renn, Fino, Zaldivar, and Branscomb are
consistent with the miner’s extensive smoking history,
continuing after he ceased his exposure to coal dust,
and the reversibility of some of the pulmonary
function studies. Furthermore, all these physicians
explained how the symptoms the miner exhibited were
consistent with a smoke induced pattern of pulmonary
impairment, which allowed them to rule out coal dust
as a causative factor. Specifically, significant
weight is given to the opinion of Dr. Renn who cited
the miner’s pulmonary function studies as producing
11
results typical of a pulmonary disease caused by
cigarette smoking. Significant weight is also given
to the opinion of Dr. Zaldivar, as he treated the
miner for his pulmonary condition on multiple
occasions from 1991 to 2003. See, 20 C.F.R. §
718.204(c)(1). The foundations upon which Drs. Green
and Cohen have based their opinions have been called
into question by the reports of these physicians.
Furthermore, the opinions of Drs. Green and Cohen are
internally inconsistent as they claim to be unable to
distinguish the effects of coal dust from those of
smoking, yet they question smoking as a causative
factor despite the fact that the miner had a heavy
smoking history that continued long after his exposure
to coal dust ceased. As such, the opinions of Drs.
Green and Cohen are entitled to little weight. I find
that the Claimant has failed to demonstrate the
presence of legal pneumoconiosis.
J.A. 1422.
In this additional decision, the ALJ also addressed the
causation arguments, explaining that Dr. Green had not provided
an opinion on the cause of Robert Massey’s respiratory
disability and that, to the extent that Dr. Cohen provided such
an opinion, he focused on the effects of Mr. Massey’s emphysema,
which had already been determined to have been caused by smoking
rather than by coal dust exposure. With respect to the cause of
death, the ALJ explained that because Dr. Cohen was not a
pathologist, his opinion deserved little weight. The ALJ
recognized that Dr. Green was a pathologist but noted that Dr.
Green failed to distinguish between the effects of Massey’s
clinical pneumoconiosis and his COPD.
12
Othello Massey appealed this decision to the BRB, which
affirmed. The BRB held that the ALJ had adequately explained
why he rejected the opinions of Drs. Cohen and Green and that
the ALJ’s rejection of these doctors’ opinions was proper. The
BRB also held that the ALJ had appropriately determined that Dr.
Cohen did not identify clinical pneumoconiosis as a contributing
cause in Robert Massey’s disability or death and that to the
extent Dr. Cohen provided an opinion on these issues, he focused
on Massey’s emphysema, which had already been determined not to
have been caused by coal dust. And finally, the BRB affirmed
the ALJ’s conclusion that Dr. Green’s testimony did not
establish that Massey’s clinical pneumoconiosis contributed to
his death, explaining that “because Dr. Green referred to simple
coal workers’ pneumoconiosis and COPD jointly as contributing
causes of the miner’s death, he did not identify simple
pneumoconiosis, standing alone, as a condition that hastened the
miner’s death.”
From the BRB’s order denying benefits, Massey appealed,
contending that the ALJ “failed to satisfy his statutory duty to
explain the basis of his decision denying benefits,” as required
by the Administrative Procedure Act (“APA”), 5 U.S.C. §
557(c)(3)(A). Massey also contends that the ALJ “failed to
employ the proper standard in assessing the issues of causation
13
of total disability and death,” focusing her criticism primarily
on the ALJ’s rejection of Dr. Green’s opinions. *
II
Our review of findings of fact in a claim for benefits
under the Black Lung Benefits Act is deferential. “The ALJ is
charged with making factual findings, including evaluating the
credibility of witnesses and weighing contradicting evidence,”
*
Peabody Coal argues in its brief that we lack subject
matter jurisdiction to consider Massey’s appeal because Massey
listed the ALJ’s order of November 20, 2007, on her notice of
appeal to the BRB rather than the ALJ’s order of February 22,
2008, which was issued in response to Massey’s motion for
reconsideration of the earlier order.
While a notice of appeal must contain the date of filing of
the decision or order appealed and the date on which a motion
for reconsideration was filed if any, see 20 C.F.R. §
802.208(a), the regulations also provide that, notwithstanding
the required elements, “any written communication which
reasonably permits identification of the decision from which an
appeal is sought and the parties affected or aggrieved thereby,
shall be sufficient notice for purposes of § 802.205.” Id. §
802.208(b).
In this case, Massey’s notice of appeal did not identify
the correct order from which she was appealing to the BRB, but
we conclude that it is reasonably clear from the notice of
appeal and the circumstances of this case that Massey intended
to appeal the final decision of the ALJ denying her benefits.
Peabody Coal has not claimed that it was unaware of Massey’s
intentions, nor has it claimed that it suffered prejudice from
the misstatement. Massey’s notice of appeal “reasonably
permit[ted] identification of the decision from which an appeal
[was] sought” and was therefore sufficient notice of appeal,
notwithstanding the error in identification of the date of the
order. Accordingly, we conclude that the BRB had jurisdiction
and that we therefore also have jurisdiction to decide Massey’s
appeal on the merits.
14
Doss v. Dir., OWCP, 53 F.3d 654, 658 (4th Cir. 1995), and our
role on appeal “simply is to determine whether substantial
evidence in the record as a whole supports the ALJ’s decision,”
Harris v. Dir., OWCP, 3 F.3d 103, 106 (4th Cir. 1993).
Substantial evidence is “more than a mere scintilla,” and is
only “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938); Milburn Colliery Co. v.
Hicks, 138 F.3d 524, 528 (4th Cir. 1998). “In determining
whether substantial evidence supports the ALJ's factual
determinations, we must first address whether all of the
relevant evidence has been analyzed and whether the ALJ has
sufficiently explained his rationale in crediting certain
evidence.” Hicks, 138 F.3d at 528. But in the end, we may
neither “‘redetermine the facts nor substitute our own judgment
for that of the ALJ.’” Harris, 3 F.3d at 106 (quoting Freeman
United Coal Mining Co. v. Benefits Review Bd., 919 F.2d 451, 452
(7th Cir. 1990)).
For her APA challenge, Massey contends that the ALJ (1)
“failed to explain on what basis he concluded that Dr. Cohen’s
opinion was entitled to less weight than the opinions of Drs.
Zaldivar and Naeye”; (2) “inadequately explained his finding
that the opinion of Dr. Green was based on an unreasoned dose
response ratio”; (3) “failed to explain his conclusion that the
15
opinions of Drs. Green and Cohen were internally inconsistent
because they could identify coal mine dust exposure as a cause
of Mr. Massey’s respiratory impairment, but could not
distinguish the effects of coal mine dust from those of smoke”;
(4) “inadequately explained his finding that Drs. Green and
Cohen failed to account for all of the objective medical
evidence”; and (5) “failed to explain why he afforded greater
weight to the opinion of Dr. Zaldivar as Mr. Massey’s treating
physician.”
It is true that the APA requires that the ALJ 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,” as well as “the appropriate rule,
order, sanction, relief or denial thereof.” 5 U.S.C. §
557(c)(3). This “duty of explanation,” however, “is not
intended to be a mandate for administrative verbosity or
pedantry.” Piney Mt. Coal Co. v. Mays, 176 F.3d 753, 762 n.10
(4th Cir. 1999). Rather, “[a]n adequate explanation can be a
succinct one; the APA neither burdens ALJs with a duty of long-
windedness nor requires them to assume that we cannot grasp the
obvious connotations of everyday language.” Lane Hollow Coal
Co. v. Dir., OWCP, 137 F.3d 799, 803 (4th Cir. 1998). Thus, as
long as “a reviewing court can discern ‘what the ALJ did and why
he did it,’ the duty of explanation is satisfied.” Mays, 176
16
F.3d at 762 n.10 (quoting Lane Hollow Coal Co., 137 F.3d at
803).
Based on our review of the record as a whole, we conclude
that the numerous explanations provided by the ALJ for his
conclusions are sufficient to satisfy the APA. In three
separate opinions, the ALJ explained the conclusions that he
drew from the medical evidence presented to him, the evidence on
which he was relying in drawing those conclusions, and the
reasons he found the opinions of some doctors to be more
persuasive than others. In fact, following the BRB’s order to
explain more fully the basis on which he was rejecting the
opinions of Drs. Green and Cohen, the ALJ devoted two additional
opinions almost exclusively to this question. The APA does not
require explanations for explanations for explanations, ad
infinitum. See Mays, 176 F.3d at 762 n.10. Rather, once an ALJ
has provided an explanation for his actions such that it is
clear “‘what [he] did and why he did it,’” the duty of
explanation is satisfied. See id. (quoting Lane Hollow Coal
Co., 137 F.3d at 803). The adequacy of the explanation provided
is tested only deferentially, and it must be affirmed as long as
it is supported by substantial evidence, or “‘such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Hicks, 138 F.3d at 528 (quoting
Consolidated Edison Co., 305 U.S. at 229).
17
In this case, the ALJ clearly fulfilled this duty of
explanation. While Massey may not agree with the conclusions,
she cannot be left wondering “what the ALJ did and why he did
it.” Lane Hollow Coal Co., 137 F.3d at 803. This is all that
the APA requires. Because these conclusions are also supported
by the testimony of several doctors, whose opinions corroborate
each other and are consistent with the objective medical
evidence in the record, it is clear that they are supported by
substantial evidence.
Massey also challenges the legal standard applied by the
ALJ, arguing that the ALJ “failed to employ the proper standard
in assessing the issues of causation of total disability and
death.” On this issue, she also focuses her criticism on the
ALJ’s rejection of Dr. Green’s opinions.
Again, our review of the record as a whole leads us to
conclude that the ALJ applied the correct standard in
determining that pneumoconiosis did not cause or contribute to
Robert Massey’s disability or cause, contribute to, or hasten
his death and that this conclusion was supported by substantial
evidence.
For the reasons given, we therefore deny Othello Massey’s
petition for review.
IT IS SO ORDERED.
18