UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2342
WEST VIRGINIA CWP FUND, as carrier for Pen Coal
Corporation,
Petitioner,
v.
STEVEN MULLINS; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(14-0035-BLA)
Submitted: June 30, 2015 Decided: September 10, 2015
Before THACKER and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition granted and reversed by unpublished per curiam opinion.
Jeffrey R. Soukup, William S. Mattingly, JACKSON KELLY PLLC,
Lexington, Kentucky, for Petitioner. Leonard J. Stayton, Inez,
Kentucky; Sean Gregory Bajkowski, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C.; Helen Hart Cox, OFFICE OF WORKERS’
COMPENSATION PROGRAMS, Washington, D.C., for Respondents.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
West Virginia CWP Fund (“Employer”), insurance carrier for
Pen Coal Corporation, seeks review of the decision and order of
the Benefits Review Board (“BRB” or “Board”) affirming the
administrative law judge’s (“ALJ”) award of black lung benefits,
pursuant to 30 U.S.C. §§ 901-945 (2012), and the BRB’s order
denying Employer’s motion for reconsideration en banc. Our
review of the record discloses that the ALJ’s decision is not
supported by substantial evidence. We therefore grant
Employer’s petition for review and reverse the award of
benefits.
“Our review of a decision awarding black lung benefits is
limited.” Hobet Mining, LLC v. Epling, 783 F.3d 498, 504 (4th
Cir. 2015) (internal quotation marks omitted). “We ask only
whether substantial evidence supports the factual findings of
the ALJ and whether the legal conclusions of the [Board] and ALJ
are rational and consistent with applicable law.” Id. (internal
quotation marks omitted). We review the legal conclusions of
the BRB and ALJ de novo but defer to the ALJ’s factual findings
if supported by substantial evidence. Harman Mining Co. v.
Dir., Office of Workers’ Comp. Programs, 678 F.3d 305, 310 (4th
Cir. 2012). “‘Substantial evidence is more than a mere
scintilla’; it is ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Island
2
Creek Coal Co. v. Compton, 211 F.3d 203, 207-08 (4th Cir. 2000)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
To establish entitlement to benefits, a miner must prove: 1
“(1) that he has pneumoconiosis, in either its ‘clinical’ or
‘legal’ form; (2) that the pneumoconiosis arose out of coal mine
employment; (3) that he is totally disabled by a pulmonary or
respiratory impairment; and (4) that his pneumoconiosis is a
substantially contributing cause of his total disability.” W.
Va. CWP Fund v. Bender, 782 F.3d 129, 133 (4th Cir. 2015)
(internal quotation marks omitted); see 20 C.F.R.
§ 725.202(d)(2) (2014).
Employer’s primary argument is that the ALJ erred by
relying on Dr. Gaziano’s opinion to support his findings that
Mullins suffers from legal pneumoconiosis and that
pneumoconiosis is a substantially contributing cause of Mullins’
totally disabling respiratory impairment. Although we may not
reweigh the medical opinions, we may determine whether the
weight assigned by the ALJ is supported by substantial evidence,
being ever “careful not to substitute our judgment for that of
the ALJ.” Harman Mining Co., 678 F.3d at 310. After reviewing
1Because Mullins conceded that he has not worked in the
coal mines for 15 or more years, he is not entitled to the
rebuttable presumption that he is totally disabled due to
pneumoconiosis. See 30 U.S.C. § 921(c)(4).
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the entire record, we conclude that substantial evidence does
not support the ALJ’s decision to accord full probative weight
to Dr. Gaziano’s opinion.
Dr. Gaziano’s diagnosis of legal pneumoconiosis was based
entirely on Mullins’ history of coal dust exposure. Dr. Gaziano
offered no objective medical evidence to support the conclusion
that Mullins’ chronic obstructive pulmonary disease (“COPD”)
arose out of his coal mine employment or was aggravated by coal
dust exposure, and Dr. Gaziano confirmed at deposition that
Mullins’ symptoms were not specific to any respiratory disease.
Dr. Gaziano also admitted that it was possible that Mullins’
COPD could have been caused entirely by cigarette smoking,
without any aggravation by coal dust. Thus, Dr. Gaziano
essentially presented only the possibility that Mullins’ COPD
was caused by coal dust exposure, which we have deemed
insufficient to support an award of benefits. See Westmoreland
Coal Co. v. Cochran, 718 F.3d 319, 322 (4th Cir. 2013)
(reiterating that “mere possibility of causation [is]
insufficient to support finding a nexus between a claimant’s
pneumoconiosis and his [respiratory impairment]”).
Also problematic in this case is Dr. Gaziano’s reliance on
an overestimate of the length of Mullins’ coal mining career by
five years. This discrepancy does not bolster the ALJ’s
decision to accord full probative weight to Dr. Gaziano’s
4
opinion, especially when the sole basis for Dr. Gaziano’s
diagnosis of legal pneumoconiosis was Mullins’ exposure to coal
dust. Moreover, the ALJ did not explain how the five-year
discrepancy did not make a difference in Mullins’ case.
In sum, Dr. Gaziano’s opinion, which relied exclusively on
an inflated coal mining history, is simply insufficient to
satisfy Mullins’ burden of demonstrating his entitlement to
benefits. 2 Because there remains no evidence upon which to base
a finding of entitlement to benefits, we reverse the award of
benefits. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
PETITION GRANTED AND REVERSED
2
Because we conclude that substantial evidence does not
support the ALJ’s findings that Mullins suffers from legal
pneumoconiosis and that pneumoconiosis was a substantially
contributing cause of Mullins’ totally disabling respiratory
impairment, we need not consider Employer’s challenges to the
ALJ’s finding that Mullins suffers from clinical pneumoconiosis
or the ALJ’s decision to assign little weight to the opinions of
Drs. Repsher and Dahhan.
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