Middle Creek Coal v. DOWCP

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MIDDLE CREEK COAL COMPANY; OLD
REPUBLIC INSURANCE COMPANY,
Petitioners,

v.
No. 95-1668
DIRECTOR, OFFICE OF WORKERS'
COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR;
WHEELER BLANKENSHIP,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(92-1799-BLA)

Argued: March 7, 1996

Decided: July 11, 1996

Before RUSSELL and WILKINS, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Mark Elliott Solomons, ARTER & HADDEN, Washing-
ton, D.C., for Petitioners. Miller Kent Carter, BRANHAM & CAR-
TER, P.S.C., Pikeville, Kentucky, for Respondents. ON BRIEF:
Laura Metcoff Klaus, ARTER & HADDEN, Washington, D.C., for
Petitioners. William Lawrence Roberts, Pikeville, Kentucky, for
Respondent Blankenship.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Middle Creek Coal Company appeals a decision by the
Benefits Review Board affirming an order by the Administrative Law
Judge awarding benefits to Wheeler Blankenship under the Black
Lung Benefits Act, 30 U.S.C. §§ 901-945. Middle Creek argues that
the Administrative Law Judge breached his duty of explanation by
failing to explain why he credited certain doctors' opinions over oth-
ers. Because we find that the Administrative Law Judge explained his
decision and that there was substantial evidence to support the deci-
sion, we affirm.

I.

Wheeler Blankenship worked as a coal miner for nineteen years
and was a miner for Middle Creek from 1979 until November, 1983.
Blankenship filed a claim under the Black Lung Benefits Act in 1985.
The record contains 107 interpretations of eighteen x-rays, eighteen
pulmonary function studies, eleven blood gas studies, and a multitude
of medical opinions from twelve doctors. The ALJ found that the
x-ray evidence was preponderantly negative for pneumoconiosis. This
finding has not been challenged. The ALJ instead relied on 20 C.F.R.
§ 718.202(a)(4) to find that Blankenship suffered from legal pneumo-
coniosis. Section 718.202(a)(4) provides that a determination of the
existence of pneumoconiosis may be made if a physician, exercising
sound medical judgment, notwithstanding a negative x-ray, finds that
a miner suffered from pneumoconiosis.

2
The ALJ provided a summation of all the medical reports in his
order. Dr. Clarke, Blankenship's treating physician, found that
Blankenship was suffering from pneumoconiosis and was totally dis-
abled. This finding was supported by Dr. Baxter, also a treating physi-
cian, and Drs. Modi, Lee, and Nash. Drs. Penman and Wright found
that Blankenship had pneumoconiosis. Drs. Mettu, Garzon, Dahhan,
Stewart, and Fino found that Blankenship did not have pneumoconio-
sis.

II.

This court reviews factual findings of the ALJ to determine
whether they were based on substantial evidence in the record. Toler
v. Eastern Associated Coal Co., 43 F.3d 109, 114 (4th Cir. 1995).
This court reviews questions of law de novo. Id. Substantial evidence
has been described as "`more than a scintilla but less that a preponder-
ance,'" and is "`such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'" See v. Washington
Metro. Area Transit Auth., 36 F.3d 375, 380 (4th Cir. 1994) (citations
omitted). "We must defer to the ALJ's credibility determinations and
inferences from the evidence, despite our perception of other, more
reasonable conclusions from the evidence." Id. "Subject to the sub-
stantial evidence requirement, . . . `[t]he ALJ has sole power to make
credibility determinations and resolve inconsistencies in the evi-
dence.'" Grizzle v. Pickands Mather Co., 994 F.2d 1093, 1096 (4th
Cir. 1993).

Middle Creek maintains that the ALJ did not explain his decision
and found pneumoconiosis only because more doctors found it than
did not. This court has fully explained an ALJ's duty in rendering a
decision:

An ALJ's decision is statutorily required to include a discus-
sion of "findings and conclusions, and the reasons or basis
therefor, on all the material issues of fact, law or discretion
presented on the record." Strict adherence to this statutorily-
imposed obligation is "critical to the appellate review pro-
cess. . . . The courts have respected this requirement by
remanding cases where the reasoning for the a.l.j.'s[sic]
conclusion is lacking and therefore presents inadequate

3
 information to accommodate a thorough review.""Since it
is apparent that the ALJ cannot reject evidence for no reason
or for the wrong reason, . . . an explanation from the ALJ
of the reason why probative evidence has been rejected is
required so that a reviewing court can determine whether the
reasons for rejection were improper." This court has long
required specific references to the evidence supporting an
ALJ's decision as part of the ALJ's "duty of explanation."
Conversely, when faced with evidence in the record contra-
dicting his conclusion, an ALJ must affirmatively reject that
contradictory evidence and explain his rationale for so
doing.

See v. Washington Metro. Area Transit Auth., 36 F.3d 375, 384 (4th
Cir. 1994). "[W]e must ask whether the ALJ examined the evidence
and provided a satisfactory explanation of the decision including a
`rational connection between the facts found and the choice made.'"
Brazzalle v. Director, OWCP, 803 F.2d 934, 936 (8th Cir. 1986).

At one section of his order, the ALJ merely listed which doctors
diagnosed pneumoconiosis and which did not and then stated that
"[s]ince a preponderance of the medical opinion evidence supports a
determination that claimant is suffering from coal worker's pneumo-
coniosis, I find that claimant has established the existence of pneumo-
coniosis pursuant to Section 718.202(a)(4)." If this had been the only
explanation offered by the ALJ, Middle Creek would be correct to
argue that the ALJ did not fulfill his duty of explanation. However,
during his discussion of Blankenship's disability, the ALJ did explain
why he gave more credence to some doctors' findings of both pneu-
moconiosis and total disability over other doctors' findings:

I give great weight to the opinions of the treating physicians
as they have the opportunity to see and treat the Claimant
on an ongoing basis as opposed to isolated disability evalua-
tions. The opinions of Drs. Baxter and Clarke are supported
by the medical opinions of Drs. Modi and Nash who also
found Claimant to be totally disabled. . . . Dr. Nash noted
moderate dyspnea to be present even at rest, at the time he
examined Claimant in July of 1990. He also found no other
cause for Claimant's pulmonary problems other than his

4
 dust exposure during his coal mine employment. As all of
the physicians noted, Claimant has never smoked cigarettes.

Drs. Garzon, Dahhan, Stewart and Fino concluded that
Claimant was not totally disabled due to any pulmonary or
respiratory impairment. In addition, all failed to diagnose
even the existence of pneumoconiosis. As main support for
their opinion regarding lack of disability, they cite the nor-
mal pulmonary function and blood gas tests. I have consid-
ered their arguments and the impressive qualifications of
Drs. Dahhan, Stewart and Fino. However, I do not feel they
adequately explain Claimant's consistent complaints of dys-
pnea and cough which were recorded at the time of each
physical examination, as well as his testimony at hearing
which I found to be credible. Further, no alternative cause
for Claimant's complaints has been adequately addressed,
especially in light of the fact that he has never smoked ciga-
rettes.

As indicated earlier I give great weight to the opinions of
Claimant's treating physicians, Drs. Baxter and Clarke, who
had the opportunity to treat and examine the Claimant on a
variety of occasions. I find their opinions to be the most per-
suasive opinions in the record on the issue of Claimant's
total disability. Their opinions are supported by the medical
opinions of Drs. Nash and Modi and are consistent with the
opinions of Drs. Lee and Penman. The conclusions of Drs.
Clarke and Baxter are also supported by their findings on
physical examination as well as Claimant's testimony
regarding his symptoms.

The ALJ obviously found reasons, other than counting noses, to
believe the opinions of Blankenship's doctors. The ALJ relied on the
fact that Dr. Clarke was the treating physician."The opinion of a
treating physician is entitled to great weight, though it is not disposi-
tive," Thorn v. Itmann Coal Co., 3 F.3d 713, 717 n.3 (4th Cir. 1993),
even if the treating physician is not as highly qualified as other physi-
cians in the record. Grigg v. Director, OWCP, 28 F.3d 416, 420 (4th
Cir. 1994). The ALJ, while recognizing the excellent credentials of
Middle Creek's doctors, discounted the opinions of these doctors

5
because their findings did not adequately explain Blankenship's short-
ness of breath and cough.

This court does not have to agree with the findings of the ALJ in
order to affirm. There is such relevant evidence on the record that a
reasonable mind might accept as adequate to support a finding of
pneumoconiosis and total disability. Also, the ALJ discussed why he
relied on certain doctors opinions over others and this was sufficient
to satisfy the ALJ's duty of explanation.

Middle Creek raises the issue that some of Blankenship's doctors
have been in trouble with the law. The ALJ recognized this as to Dr.
Modi and stated that he credited Dr. Modi's opinion only insofar as
it was supportive of other medical opinions in the record. While we
believe that an ALJ should give a doctor convicted of filing false
claims or giving false information in connection with black lung cases
little or no credibility at all, there were other doctors here who were
not accused of anything on which the ALJ could and did rely.

Because the ALJ explained his decision and because that decision
was supported by substantial evidence, the ruling of the Board affirm-
ing the ALJ is

AFFIRMED.

6