Peerless Eagle Coal v. Taylor

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PEERLESS EAGLE COAL COMPANY,
Petitioner,

v.

ESCAR E. TAYLOR; DIRECTOR, OFFICE
No. 96-1500
OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(93-1558-BLA)

Submitted: January 28, 1997

Decided: February 27, 1997

Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

John Payne Scherer, Sr., FILE, PAYNE, SCHERER & FILE, Beck-
ley, West Virginia, for Petitioner. George P. Surmaitis, CRANDALL,
PYLES & HAVILAND, Charleston, West Virginia, for Respondent.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Peerless Eagle Coal Company (employer), for the second time,
petitions for review of a decision of the Benefits Review Board
(Board) affirming an administrative law judge's (ALJ) decision to
grant Escar Taylor's application for black lung benefits. In our prior
consideration of this case, we affirmed all findings of the ALJ except
for those relating to the issue of whether the miner established pneu-
moconiosis. We reversed the ALJ's finding of pneumoconiosis on the
basis of X-rays under 20 C.F.R. § 718.202(a)(1) (1996), but remanded
for the Board to consider the propriety of the ALJ's finding of pneu-
moconiosis based on the medical opinion evidence under subsection
(a)(4). The Board did not address this question in its first decision
because it affirmed the ALJ's finding of pneumoconiosis under sub-
section (a)(1). On remand, the Board affirmed the ALJ's finding of
pneumoconiosis under subsection (a)(4).

We must affirm the decision of the Board if the Board properly
decided that the ALJ's findings are supported by substantial evidence.
Doss v. Director, Office of Workers' Compensation Programs, 53
F.3d 654, 658 (4th Cir. 1995). In this case, the Board determined that
substantial evidence supported the ALJ's decision to credit the medi-
cal opinions of Drs. Gaziano and Rasmussen, finding pneumoconio-
sis, over Dr. Zaldivar's opinion that Taylor does not suffer from the
disease. Employer contends that the Board and ALJ erred by finding
the opinions of Drs. Gaziano and Rasmussen supported by the
miner's symptoms, physical examination, X-ray and ventilatory
studies.

Contrary to employer's assertion, the reports of Drs. Gaziano and
Rasmussen are well documented. These physicians considered the
miner's work, medical, and social histories, as well as the results of
medical testing, in forming their conclusions. Moreover, the underly-

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ing data support their conclusions. Both physicians noted wheezing,
dyspnea, and a chronic cough which produced sputum. Dr. Gaziano
noted rhonchi throughout both lung fields. Both found that the
miner's X-rays showed pneumoconiosis, and that his ventilatory
studies revealed an obstructive impairment. Although employer
argues that the ventilatory studies failed to meet the regulatory criteria
for disability, this fact in no way excludes a diagnosis of pneumoconi-
osis.

Employer also avers that the ALJ ignored Dr. Zaldivar's report.
The ALJ's opinion, however, discloses that she thoroughly considered
Dr. Zaldivar's report but found that the opinions of Drs. Gaziano and
Rasmussen were better reasoned and documented. She was particu-
larly swayed by Dr. Zaldivar's failure to explain his reasons for con-
cluding that smoking was the sole cause of the miner's breathing
impairment, unless asthma was somehow contributing, and that coal
dust exposure played no role at all. The ALJ found the opinions of
Drs. Gaziano and Rasmussen more persuasive on this point. These
physicians noted that the miner worked in the mines for thirty-two
years, mostly in dusty conditions, and that his smoking history was
light and limited to his youth. These facts, together with the miner's
symptoms and medical testing, led them to trace the miner's pulmo-
nary problems to pneumoconiosis. Accordingly, we find that the ALJ
acted within her discretion by crediting the opinions of Drs. Gaziano
and Rasmussen over the report of Dr. Zaldivar. See Grizzle v. Pick-
ands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993).

Employer contends that the Board, ALJ, and physicians finding
pneumoconiosis also erred by failing to consider evidence showing
that the miner did not leave coal mining for medical reasons, did not
need medication for breathing problems, and led an active life after
leaving the mines. We agree with the Board, however, that such evi-
dence is not relevant to whether the miner suffered from pneumoconi-
osis, as even if all the facts asserted by the employer are true, the
miner could still have pneumoconiosis.

Finally, employer asserts that the Board erred by finding harmless
the ALJ's misstatement that Dr. Gaziano examined the miner three
times when, in fact, he only examined him twice. Employer contends
that the misstatement demonstrates that the ALJ did not carefully

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review the evidence. We have already considered and rejected this
argument in our prior decision.

Accordingly, because we find that substantial evidence supports
the ALJ's finding of pneumoconiosis, the decision of the Board is
affirmed. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

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