Consolidation Coal Company v. Arthur O. Held Director, Office of Workers' Compensation Programs, United States Department of Labor

GREGORY, Circuit Judge,

dissenting:

Consol disputes the ALJ’s determination that Arthur 0. Held, a coal miner for nearly forty years, is entitled to benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901 et seq. There is no doubt that Held suffers from severe, pulmonary-related illnesses. Medical experts disagree, however, on the cause of his condition. Some doctors believe that Held’s disability is due solely to his forty-year history as a pack-a-day smoker. Others conclude that both his smoking and his decades of work in the coal mines are responsible.

In a thirty-seven page opinion, the ALJ considered all of the conflicting evidence, and found that Held suffered from pneu-moconiosis arising at least partly from his coal-mine employment. The U.S. Department of Labor’s Benefits Review Board (“Board”) affirmed these findings as supported by substantial evidence in the record. Like the Board, we review the ALJ’s findings of fact under the substantial evidence standard. Because I believe that the majority misapplies this standard, I respectfully dissent.

I.

While we review the Board’s and the ALJ’s conclusions of law de novo, we review the ALJ’s factual findings under the more deferential substantial evidence stan*189dard. Ante, at 186. The substantial evidence standard is far more deferential than de novo; “it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir.2001)(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966)). See also Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 756 (4th Cir.1999); Staten v. Califano, 598 F.2d 328, 331 (4th Cir.1979) (“Our scope of review is confined to determining whether the Secretary’s decision was supported by substantial evidence. We are not to try the case de novo.”) (internal citations omitted).

In agency cases, the reviewing court should not substitute its judgment for that of the ALJ. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990) (“Ultimately, it is the duty of the administrative law judge reviewing a case, and not the responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence.”). Specifically, in black lung cases, the ALJ as trier of fact “is not bound to accept the-opinion or theory of any medical expert.” Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir.1997). Rather, his role is to “evaluate the evidence, weigh it, and draw his own conclusions.” Id. In reviewing these conclusions, “We must sustain the ALJ’s decision, even if we disagree with it, provided the determination is supported by substantial evidence and thus, would be enough to justify a refusal to direct a verdict in a jury trial.” Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir.1996).

II.

I agree with the majority that the ALJ misapplied Fourth Circuit law on two points. First, the ALJ incorrectly considered the x-ray evidence and the physicians’ opinions separately, instead of weighing these two types of evidence together. Second, the ALJ erred in concluding that “generally” the opinion of a treating physician “would ordinarily be entitled to more weight” than the opinions of other doctors. J.A. at 526 (emphasis added).

Of course, not every error committed by an ALJ is reversible error. Jericol Mining, Inc. v. Napier, 301 F.3d 703 (6th Cir.2002); Underwood, 105 F.3d at 949-50. In Jericol Mining, the ALJ inappropriately gave “additional weight” to a coal miner’s primary treating physician. 301 F.3d at 710. Additionally, the ALJ “erred in attributing greater weight to the opinion of [a second treating physician] simply because he saw [the miner], more frequently than the other examining physicians.” Id. at 711. Having found these two errors of law, the Sixth Circuit nevertheless affirmed the ALJ’s ruling. The court explained:

[The coal company’s] central argument, when stripped to its essentials, appears to be a quarrel with the ALJ’s credibility determinations. But this court is required to defer to the ALJ’s assessment of the physicians’ credibility. In light of the entire record, we conclude that the ALJ’s findings were based upon substantial evidence and therefore should be affirmed.

Id. at 713-14 (internal citations omitted).

The analytical approach of the Jericol Mining court applies equally well to the present case. Thus, before determining whether the ALJ’s legal errors require reversal, we must review his findings of fact in light of the entire record. If substantial evidence supports the ALJ’s decision to rely on Dr. Tsai’s opinion and place less emphasis on the x-ray evidence, then the ALJ’s and the Board’s decisions should be affirmed. Id. at 711.

*190III.

A.

The majority initially finds fault with the ALJ’s conclusion that the x-ray evidence was inconclusive, neither supporting nor defeating the miner’s claim of CWP. The majority then suggests that the x-ray evidence weighs heavily against a finding of coal worker’s pneumoconiosis. See ante, at 187. In so doing, the Court effectively embarks on a de novo review of the ALJ’s findings of fact.

The ALJ observed that, from 1976 to 1997, sixty-nine x-ray readings were completed. J.A. at 525. While most of these readings were negative, the ALJ found that the most important readings were the two most recent, both of which were done in 1997. He noted, “Dr. Fino’s 9/4/97 reading ... was negative for CWP,” while Dr. Garson read the 1/22/97 x-ray as “positive for simple CWP.” J.A. at 525-26. The ALJ, therefore, concluded that “the two most important x-rays, in 1997, appear contradictory. Thus, I cannot find the miner established CWP through x-ray evidence alone.” J.A. at 526.

Considering this evidence anew, I might find, as the majority implies, that the x-rays weigh against a finding of CWP. After all, only seven of the sixty-nine x-ray readings were positive for CWP. See J.A. at 525. However, “We must sustain the ALJ’s decision, even if we disagree with it, provided the determination is supported by substantial evidence.... ” Smith v. Chater, 99 F.3d at 637-38. In this case, “more than a mere scintilla of evidence” supports the ALJ’s conclusion that the x-ray evidence is inconclusive. See Mastro, 270 F.3d at 176. The fact that the two most recent x-rays are in conflict is sufficient to support the ALJ’s conclusion. This factual determination, therefore, should be upheld.

B.

Unable to resolve the case on the x-ray evidence alone, the ALJ turned to the testimony of the various physicians who considered the miner’s condition.1 In reviewing this medical evidence, the ALJ found that the opinions of three doctors— Drs. Tsai, Jaworski, and Garson — supported a finding of CWP. In contrast, Drs. Fino, Renn, and Morgan all advised against such a finding. As mentioned above, the ALJ erred in stating that Dr. Tsai’s opinion would generally be entitled to greater weight. In Milburn Colliery Co. v. Hicks, this Court stated, “[A]n ALJ should not ‘mechanistically creditf ], to the exclusion of all other testimony,’ the testimony of an examining or treating physician solely because the doctor personally examined the claimant.” 138 F.3d 524, 533 (4th Cir.1998). However, a treating physician’s opinion is entitled to “special consideration.” Grizzle v. Pickands Mather & Co., 994 F.2d 1093, 1097 (4th Cir.1993) (abrogated on other grounds, Hicks, 138 F.3d at 530).2 In this case, after evaluat*191ing the conflicting medical evidence, the ALJ reasonably concluded that Dr. Tsai’s opinion was reliable, trustworthy, and therefore entitled to “a great deal of weight.” J.A. at 526.

The majority, however, states that “[t]he ALJ’s treatment of Dr. Tsai also deviated from the facts of this case.... While Dr. Tsai is board certified in internal medicine, he has no specialty training in pulmonary medicine and has no special radiological training reading x-rays.” Ante, at 188. Thus, the majority finds that Dr. Tsai’s opinion is less persuasive than the testimony of Drs. Jaworski, Renn, and Fino. In reaching this conclusion, the majority again misapplies the “substantial evidence” standard of review. The additional training that Drs. Renn, Jaworski, and Fino received is relevant, but it is not disposi-tive. While the ALJ inappropriately concluded that Dr. Tsai’s reports would generally be entitled to more weight, this does not mean that a treating physician’s opinion can never be entitled to more weight. When there is a conflict among the medical evidence, the ALJ is encouraged to consider the specific facts of the case and decide which physician’s opinion is entitled to the greatest weight. Underwood, 105 F.3d at 949.

Dr. Tsai has been Held’s regular treating physician since 1976. As the ALJ noted, Dr. Tsai “conducted at least ten annual full pulmonary evaluations and his opinion carries a great deal of weight.” J.A. 526. Like Drs. Renn and Fino, Dr. Tsai did his residency in internal medicine. While Dr. Tsai did not do a post-residency fellowship in pulmonary diseases, he does have considerable practical experience with CWP. He has practiced as a general internist since 1975, with coal miners making up twenty to forty percent of his patient population. Much of his practice focuses on cardio-pulmonary problems. J.A. 196. In short, he has considerable experience in diagnosing and treating CWP.

In addition, Dr. Tsai’s opinion is buttressed by the conclusions of Drs. Jawor-ski and Garson. Dr. Jaworski is board certified in internal medicine, with sub-specialties in pulmonary diseases and critical care. J.A. at 279. He is a “B” reader for chest x-rays. He examined Held on May 16,1996, and concluded that Held had a “multifactorial etiology,” with both cigarettes and coal dust playing a role in his illness. J.A. at 299. Dr. Jaworski based his finding on “the presence of the air-way obstruction and a significant history of exposure to coal dust.” J.A. at 301. He explained, “There’s no specific test that diagnoses this. We’re basically relying on history, physical exam, and pulmonary function testing.” J.A. at 302.

Dr. Garson has sub-specialities in preventive medicine, public health, and occupational medicine. He arguably has the most significant experience in the field of pulmonary diseases of any of the physicians offering opinions in this case.3 Dr. Garson examined Held in 1997, and concluded that Held suffered from severe chronic obstructive pulmonary disease, emphysema, and coal workers’ pneumoconio-sis. He explained, “[T]he portion of his coal workers’ pneumoconiosis ... caused *192by his underground coal mine employment [is supported by] his pulmonary function and breathing tests that exceed the levels necessary for disability and compensation.” J.A. at 341-42. Like Dr. Jaworski, Dr. Garson emphasized “that part of [Held’s] problem is due to his coal workers’ pneu-moconiosis, part is due to his emphysema [from smoking], and it is not possible — we have no testing mechanism to evaluate exactly how much. But clearly both are at work.... ”

In contrast to these conclusions, Drs. Fino, Renn, and Morgan found there to be no evidence of CWP. The ALJ, however, reasoned that the testimony of these doctors was “disingenuous.” J.A. at 527. For example, despite seeing thousands of patients over twenty-five years, Dr. Renn has never diagnosed a patient with CWP absent a positive x-ray, biopsy, or autopsy. The Department of Labor’s regulations, however, state that “[a] determination of the existence of pneumoconiosis may also be made ... notwithstanding a negative x-ray ....” 20 C.F.R. § 718.202(a)(4).4 The regulations further explain, “No claim for benefits shall be denied solely on the basis of a negative chest x-ray.” § 718.202(b). Therefore, the ALJ properly viewed Dr. Renn’s analysis with suspicion.

Similarly, the ALJ discounted Dr. Morgan’s opinion because of a perceived bias that was evident in Dr. Morgan’s written report. In that report, Dr. Morgan dismissed, without explanation, evidence supporting a finding of CWP. For example, Dr. Morgan opines that Dr. Jaworski’s analysis (finding CWP) was “based on tenuous evidence,” but he does not explain why he reaches this conclusion. Instead, he offers the conclusory explanation, “I do not find his argument compelling.” J.A. at 240. He then considers Dr. Renn’s finding that cigarette smoke is solely responsible for Held’s problems, and notes without elaboration, “I have a great regard for Dr. Renn.” J.A. at 241. When another physician, Dr. Fisher, interprets a chest x-ray to contain some evidence of pneumoconio-sis, Dr. Morgan outright dismisses these findings: “I place little reliance on Dr. Fisher’s opinion.” J.A. at 243. After offering a blanket dismissal of any evidence that would support a finding of CWP, Dr. Morgan summarily concludes that there is “nothing to suggest” that Held’s illnesses are at least partially attributable to coal mine dust. See J.A. at 238^8.

Dr. Fino testified in person before the ALJ, giving the ALJ a unique opportunity to assess Dr. Fino’s credibility. The ALJ noted that Dr. Fino receives ninety percent of his referrals from coal-industry employers. J.A. at 520. He further questioned Dr. Fino’s testimony that he finds CWP in only fifteen percent of the patients he sees, and of that small percentage, only one fourth are diagnosed as being “disabled” because of CWP. Id. The ALJ was particularly troubled by these statistics because Dr. Fino did not find CWP in Held’s case despite the fact that he “admitted that some of Mr. Held’s test results approach consistency with CWP.” J.A. at 527.

In the end, the ALJ’s factual findings, based on the evidence in the record, should be upheld. Specifically, substantial evidence supports the ALJ’s decision to give greater weight to the testimony of Dr. Tsai. Similarly, the ALJ’s finding that the *193opinions of Drs. Fino, Morgan and Renn were disingenuous is supported by substantial evidence. Therefore, while this Court might reach a different conclusion if it were reviewing the evidence de novo, we should not disturb these factual findings under the substantial evidence standard.

IV.

In summary, there is far more than a mere scintilla of evidence supporting the ALJ’s findings of fact. Thus, the ALJ was justified in relying on Dr. Tsai’s opinion and in dismissing the opinions of Drs. Renn, Fino, and Morgan, which were based almost exclusively on the inconclusive x-ray evidence. For these reasons, I dissent.

. As stated above, the ALJ erred in considering the physicians’ opinions separately from the x-ray evidence. See Island Creek Coal Co. v. Compton, 211 F.3d 203, 208 (4th Cir.2000).

. The Grizzle court explained the distinction between "greater weight" and "special consideration” as follows:

We have often stated that as a general matter the opinions of treating and examining physicians deserve special consideration.... [We have never held, however,] that the opinions of treating or examining physicians must be accorded greater weight than opinions of other physicians. It is, of course, one thing to say that we give great weight to the treating or examining physician's opinion; it is quite another to say that as a matter of law we give greater weight to such an opinion than to opinions by other physicians.

*191994 F.2d at 1097-98 (internal citations omitted).

. Dr. Garson explained, "I was sent by the United States Public Health Services to the coal producing nations ... to review the prevention of coal workers' pneumoconiosis underground in coal mining. I brought back that information which was presented to Congress and was included in the 1969 Act ... involving protection of coal mine workers in this country.” J.A. at 329. In addition, Dr. Garson worked as the Medical Director for the petitioner, Consol, for several years. J.A. at 328.

. The majority observes that it is unclear from the record whether Dr. Renn was referring to medical CWP or the broader category of legal CWP. Ante, at 187 n. 2. Thus, it is difficult to discern whether Dr. Renn’s comments are hostile to the Act. The ALJ, however, is permitted to draw reasonable inferences from Dr. Renn's deposition. As the trier of fact, his interpretation of Dr. Renn’s comments is entitled to some deference.