Island Creek Coal Co. v. Groves

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-1435

ISLAND CREEK COAL COMPANY,

Petitioner,

versus

WILLIAM L. GROVES; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,

Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(05-0559-BLA)

Submitted: July 18, 2007 Decided: August 17, 2007

Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Ashley M. Harman, William S. Mattingly, JACKSON KELLY PLLC,
Morgantown, West Virginia, for Petitioner. John Cline, Piney View,
West Virginia, for Respondent William L. Groves.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Island Creek Coal Company (employer) seeks review of the

Benefits Review Board’s (BRB) decision and order affirming the

administrative law judge’s (ALJ) award of black lung benefits on a

claim filed by William Lawrence Groves pursuant to 30 U.S.C.

§§ 901-945 (2000). Because we conclude that the ALJ erred in her

evaluation of the evidence, we vacate the award of benefits and

remand for reconsideration.

We review decisions of the BRB to determine whether the

BRB properly found that the ALJ’s decision was supported by

substantial evidence and was in accordance with law. Consolidation

Coal Co. v. Held, 314 F.3d 184, 186 (4th Cir. 2002). In making

this determination, we undertake an independent review of the

record to decide whether the ALJ’s findings are supported by

substantial evidence. Dehue Coal Co. v. Ballard, 65 F.3d 1189,

1193 (4th Cir. 1995). Substantial evidence is more than a

scintilla, but only such evidence that a reasonable mind could

accept as adequate to support a conclusion. Lane v. Union Carbide

Corp., 105 F.3d 166, 170 (4th Cir. 1997). In conducting such

review, however, the court confines itself to the grounds upon

which the BRB based its decision. Grigg v. Dir., Office of

Workers’ Comp. Programs, 28 F.3d 416, 418 (4th Cir. 1994).

Subject to the substantial evidence requirement, the ALJ

has the sole authority to make credibility determinations and

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resolve inconsistencies or conflicts in the evidence. Grizzle v.

Pickands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993). An

ALJ, however, may rely only on a medical opinion that constitutes

a reasoned medical judgment. Freeman United Coal Mining Co. v.

Cooper, 965 F.2d 443, 448 (7th Cir. 1992). An ALJ must evaluate

the quality of medical opinions by considering “the qualifications

of the experts, the opinions’ reasoning, their reliance on

objectively determinable symptoms and established science, their

detail of analysis, and their freedom from irrelevant distractions

and prejudices.” Underwood v. Elkay Mining, Inc., 105 F.3d 946,

951 (4th Cir. 1997).

To establish that he is entitled to black lung benefits

in a case under Part 718, a miner must prove: “(1) he has

pneumoconiosis; (2) the pneumoconiosis arose out of coal mine

employment; (3) he has a totally disabling respiratory or pulmonary

condition; and (4) pneumoconiosis is a contributing cause to his

total respiratory disability.” Milburn Colliery Co. v. Hicks, 138

F.3d 524, 529 (4th Cir. 1998). A claimant may establish the

existence of pneumoconiosis by means of (1) chest x-rays; (2)

biopsy or autopsy evidence; (3) invocation of the presumptions at

20 C.F.R. §§ 718.304 - .306 (2006); or (4) medical opinion

evidence. See 20 C.F.R. § 718.202(a) (2006). In this case, there

is no autopsy or biopsy evidence, and the presumptions of

§§ 718.304 - .306 do not apply because there is no evidence that

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Groves suffered from complicated pneumoconiosis, the claim in

question was filed after January 1, 1982, and this is a living

miner claim.

Employer first argues that the ALJ erred in determining

that Groves suffered from pneumoconiosis. Specifically, employer

asserts that the ALJ erred by applying a “later is better evidence”

rule and vestiges of the true doubt rule to conclude that the x-ray

evidence established the existence of pneumoconiosis. Employer

also argues that the ALJ failed to properly consider CT scan

evidence, and erred in her consideration of the physicians’

opinions. The ALJ considered ten readings of three different x-

rays. She found that the earliest x-ray, taken on May 16, 1995,

was negative, that the readings of the December 19, 2002, x-ray

were in equipoise, but that the positive readings of the May 28,

2003, x-ray slightly outweighed the negative readings of that x-

ray. The ALJ concluded that, because the most recent x-ray was

positive and the next most recent was in equipoise, the

preponderance of the x-ray evidence established the existence of

the disease.

Our review convinces us that the ALJ’s conclusion is

supported by substantial evidence. Contrary to employer’s

arguments, the ALJ did not misapply the “later is better” evidence

rule criticized by this court in Adkins v. Dir., Office of Workers’

Comp. Programs, 958 F.2d 49 (4th Cir. 1992). Rather, her analysis

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is consistent with the progressive nature of the disease. E.

Assoc. Coal Corp. v. Dir. Office of Workers’ Comp. Programs, 220

F.3d 250, 258-59 (4th Cir. 2000). Although the two most recent x-

rays are separated by only six months, the ALJ correctly noted that

the positive readings by dually-qualified readers slightly

outnumbered the negative readings by dually-qualified readers.

Contrary to employer’s argument, all B readers are not considered

equal, as readings by those B readers who are also board-certified

radiologists are entitled to greater weight. 20 C.F.R.

§ 718.202(a)(1) (2007). Employer’s argument amounts to a request

that this court reweigh the x-ray evidence, and is without merit

Employer also asserts that the ALJ erred in failing to

weigh all relevant evidence, as required by this court’s decision

in Island Creek Coal Co. v. Compton, 211 F.3d 203 (4th Cir. 2000).

Employer contends the ALJ failed to adequately consider the

negative readings of two CT scans. We agree. The ALJ gave reduced

weight to the CT scans because the record did not document how

those negative readings compared with the positive x-ray

interpretations. This analysis is not supported by substantial

evidence. The record includes, in addition to the interpretations

of the CT scans, comments by Doctors Wiot and Zaldivar regarding

the value of CT scans in diagnosing pneumoconiosis. In his

deposition, Dr. Crisalli disputed Dr. Rasmussen’s characterization

of the x-ray evidence as mixed based on the negative CT scans,

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which offset the positive x-ray readings. Contrary to the ALJ’s

statement, the comments of Doctors Wiot, Zaldivar, and Crisalli

demonstrate that the CT scans are at least equivalent to a chest x-

ray as a diagnostic tool, and logically lead to the conclusion that

the negative CT scans directly contradict the positive x-ray

readings. Because the ALJ erred in her analysis of the CT scans,

we conclude that her conclusion that Groves suffered from

pneumoconiosis is not supported by substantial evidence.

The ALJ also based her weighing and crediting of the

various physicians’ opinions on whether they agreed or disagreed

with her conclusion that the x-ray evidence was sufficient to

establish the existence of pneumoconiosis. The ALJ’s error in

evaluating the CT scan evidence undermines her evaluation of the

physicians’ opinions, particularly those of Doctors Zaldivar and

Crisalli. The ALJ also found Dr. Rasmussen’s opinion worthy of

greatest weight, but did not explain why she credited his opinion

over the opinions of Doctors Zaldivar and Crisalli who possess

greater medical qualifications in the area of pulmonary disease.

Moreover, Dr. Rasmussen relied heavily on the positive x-ray

readings, which the other doctors characterized as questionable in

light of the CT scan readings.

The ALJ discredited Dr. Zaldivar’s opinion because he

opined that the negative chest x-rays indicate that Groves had

inhaled an insufficient amount of coal dust to have caused any

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damage. The ALJ concluded that this statement was inconsistent

with the regulatory provision that a claim shall not be denied

based solely on a negative x-ray. See 20 C.F.R. § 718.202(b)

(2006). We conclude that this analysis is not supported by

substantial evidence, but amounts to the ALJ substituting her

opinion for that of a medical expert. Dr. Zaldivar did not opine

that pneumoconiosis can never be diagnosed without a positive x-ray

reading, but stated that in this case Groves’s x-ray did not

exhibit any signs that he had inhaled sufficient dust to cause any

damage to his lungs to explain the pulmonary symptoms he exhibited.

The ALJ also discredited Dr. Zaldivar’s opinion because

he “testified that he is of the opinion that chronic obstructive

pulmonary disease is not caused by coal mine dust exposure.” This

finding is also not supported by substantial evidence, but results

from a selective reading of Dr. Zaldivar’s deposition. The portion

of Dr. Zaldivar’s deposition testimony cited by the ALJ occurred

during cross-examination by Groves’s counsel concerning Dr.

Zaldivar’s comments regarding various medical studies, including

studies that he authored. Dr. Zaldivar’s comments were expressed

in the context of a discussion of the results of medical studies he

either reviewed or personally conducted. Moreover, Dr. Zaldivar

did not opine that coal mine dust exposure cannot cause an

obstructive impairment; rather, the results of his study indicated

that such an impairment in coal miners occurred when the miners

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were cigarette smokers. These statements are not a valid basis for

discrediting Dr. Zaldivar’s opinion.

The ALJ also discredited the opinion of Dr. Crisalli

because he failed to explain why he eliminated coal mine dust

exposure as a cause of Groves’s respiratory impairment. Dr.

Crisalli attributed Groves’s impairment to bullous emphysema caused

by his lengthy smoking history, and concluded that “[i]n this

particular case with this extent of bullous emphysema and all that

air trapping, that would further support that tobacco smoke is, not

only a major component, it is the only component.” Our review of

Dr. Crisalli’s written report and deposition testimony lead us to

conclude that he ruled out coal dust exposure as the cause for

Groves’s respiratory impairment because the objective evidence

overwhelmingly supported a diagnosis of bullous emphysema, which he

testified he had never seen in miners who had not smoked. The ALJ

erred in discrediting Dr. Crisalli’s opinion.

Employer also argues that the ALJ erred in her evaluation

of the medical opinion of Dr. Jarvis, Groves’s treating physician.

The BRB agreed with this argument, but held that the ALJ’s error

was harmless because the ALJ relied on the opinion of Dr. Rasmussen

to conclude that Groves suffered from legal pneumoconiosis. In

light of the ALJ’s error in evaluating the CT scans and medical

opinions, we conclude that the error in weighing Dr. Jarvis’s

opinion is not harmless. Because the errors of the ALJ in

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evaluating the evidence regarding the existence of pneumoconiosis

require a remand for reconsideration, we do not address employer’s

assertions of error in the ALJ’s conclusions regarding the cause of

Groves’s respiratory disability.

Employer’s final argument is that the ALJ erred in

excluding several proffered exhibits because they exceeded the

limitations at 20 C.F.R. § 725.414(a). Employer does not assert

that the ALJ erroneously interpreted the limitations in the

regulation, but argues the regulation is inconsistent with the

Black Lung Benefits Act, the Administrative Procedure Act, and this

court’s precedent. This argument is foreclosed by this court’s

decision in Elm Grove Coal Co. v. Dir., Office of Workers’ Comp.

Programs, 480 F.3d 278 (4th Cir. 2007).

Accordingly, we vacate the award of benefits and remand

for reconsideration. 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.

VACATED AND REMANDED

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