Filed: Aug. 18, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-2172 WESTMORELAND COAL COMPANY, INCORPORATED, Petitioner, v. CHARLES M. AMICK; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Respondents. On Petition for Review of an Order of the Benefits Review Board. (05-1000-BLA) Argued: May 15, 2008 Decided: August 18, 2008 Before WILKINSON and GREGORY, Circuit Judges, and Henry F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation. Aff
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-2172 WESTMORELAND COAL COMPANY, INCORPORATED, Petitioner, v. CHARLES M. AMICK; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, Respondents. On Petition for Review of an Order of the Benefits Review Board. (05-1000-BLA) Argued: May 15, 2008 Decided: August 18, 2008 Before WILKINSON and GREGORY, Circuit Judges, and Henry F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation. Affi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2172
WESTMORELAND COAL COMPANY, INCORPORATED,
Petitioner,
v.
CHARLES M. AMICK; DIRECTOR, OFFICE OF WORKERS’ COMPENSATION
PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-1000-BLA)
Argued: May 15, 2008 Decided: August 18, 2008
Before WILKINSON and GREGORY, Circuit Judges, and Henry F.
FLOYD, United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Wilkinson wrote the
opinion, in which Judge Floyd joined. Judge Gregory wrote a
dissenting opinion.
ARGUED: Douglas Allan Smoot, JACKSON & KELLY, PLLC, Charleston,
West Virginia, for Petitioner. John J. Appelbaum, WASHINGTON &
LEE UNIVERSITY, School of Law, Lexington, Virginia, for
Respondents. ON BRIEF: Kathy L. Snyder, JACKSON & KELLY, PLLC,
Morgantown, West Virginia, for Petitioner. Mary Z. Natkin,
Renae Patrick, Thomas J. Maas, WASHINGTON & LEE UNIVERSITY,
School of Law, Lexington, Virginia, for Respondent Charles M.
Amick. Jonathan L. Snare, Acting Solicitor of Labor, Rae Ellen
Frank James, Deputy Associate Solicitor, Patricia M. Nece,
Counsel for Appellate Litigation, Richard A. Seid, Senior
Attorney, UNITED STATES DEPARTMENT OF LABOR, Office of the
Solicitor, Washington, D.C., for Federal Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
WILKINSON, Circuit Judge:
Westmoreland Coal Company (“Westmoreland”), for the second
time, petitions for review of a decision and order of the
Department of Labor’s Benefits Review Board (“BRB”) affirming
the Administrative Law Judge’s (“ALJ”) award of black lung
benefits to Charles Moore Amick, now deceased. In our prior
consideration of this case, we affirmed all findings of the ALJ
except those related to the crediting and discrediting of
various medical opinions, and we remanded to the ALJ for
reconsideration of the medical opinion evidence. On appeal,
Westmoreland again contends that the award of benefits to Mr.
Amick must be set aside because the ALJ’s decision to give more
weight to the opinions of Mr. Amick’s doctors and less weight to
those of Westmoreland’s doctors was irrational and unsupported
by substantial evidence. Because the decision to award benefits
to Mr. Amick is supported by substantial evidence, we affirm the
order of the BRB.
I.
A.
The Black Lung Benefits Act (“BLBA”) provides benefits to
coal miners who are totally disabled because of pneumoconiosis,
also known as black lung disease, and to the surviving
3
dependents of coal miners who have died from the disease. 30
U.S.C. § 901(a) (2000); Mullins Coal Co. v. Dir., OWCP, 484 U.S.
135, 138 (1987). A coal miner or his surviving dependent may
seek benefits under the BLBA by filing a claim with the District
Director in the Department of Labor’s Office of Workers’
Compensation Programs, who determines whether a particular
claimant is eligible for benefits and which employer will be
responsible for those benefits. See 20 C.F.R. §§ 725.301-
725.423 (2007). After the District Director makes a
determination about benefits, either party may appeal and
request a hearing before an ALJ.
Id. §§ 725.450-725.480. The
ALJ’s decision is appealable to the BRB,
id. § 725.481, and then
to the court of appeals for the circuit in which the respiratory
impairment occurred. 33 U.S.C. § 921(c) (2000); 20 C.F.R.
§ 725.482.
The BLBA defines pneumoconiosis as a “chronic dust disease
of the lung and its sequelae, including respiratory and
pulmonary impairments, arising out of coal mine employment.” 30
U.S.C. § 902(b) (2000). As of January 2001, 20 C.F.R.
§ 718.201(c) made clear the long-held understanding by the
courts of appeals that pneumoconiosis is a “latent and
progressive disease which may first become detectable only after
the cessation of coal mine dust exposure.” See, e.g., Mullins
4
Coal Co., 484 U.S. at 151; LaBelle Processing Co. v. Swarrow,
72
F.3d 308, 314 (3d Cir. 1995); Lovilla Coal Co. v. Harvey,
109
F.3d 445, 450 (8th Cir. 1997); Orange v. Island Creek Coal Co.,
786 F.2d 724, 727 (6th Cir. 1986); Consolid. Coal Co. v. Chubb,
741 F.2d 967, 973 (7th Cir. 1984).
As of January 2001, federal regulations also made clear
what courts had long recognized, namely, that pneumoconiosis as
defined by the BLBA has both a “clinical” and a “legal”
manifestation. 20 C.F.R. § 718.201(a)(1)-(2); see, e.g., Nat’l
Mining Ass’n v. Dep’t. of Labor, 292 F.3d 849, 869 (D.C. Cir.
2002) (noting that the distinction between clinical and legal
pneumoconiosis is recognized by all the circuits that considered
the issue); Gulf and Western Industries v. Ling,
176 F.3d 226,
231-32 (4th Cir. 1999). Clinical pneumoconiosis, also known as
“medical pneumoconiosis,” is “characterized by permanent
deposition of substantial amounts of particulate matter in the
lungs and the fibrotic reaction of the lung tissue to that
deposition caused by dust exposure in coal mine employment.” 20
C.F.R. § 718.201(a)(1). Legal pneumoconiosis is defined much
more broadly, and includes “any chronic lung disease or
impairment and its sequelae arising out of coal mine
employment.”
Id. § 718.201(a)(2).
5
B.
Charles Moore Amick, now deceased, worked as a coal miner
for thirty-three years. From 1946 until 1962, Mr. Amick worked
in strip mining, and from 1962 until he retired in 1983, he
worked underground. During those years, he performed numerous
jobs: truck driver, mechanic, electrician, bulldozer operator,
timberman, cutting machine operator, and scoop operator. During
his last eleven years as a coal mine employee, Mr. Amick ran a
supply motor, which required him to load and unload roof bolts,
timbers, and other supplies. Mr. Amick also had smoked roughly
one pack of cigarettes each day from 1941 until around 1988.
In December of 1980, Mr. Amick filed a claim for black lung
benefits, which the District Director denied in July of 1981.
Mr. Amick applied again in April 1983, and the District Director
denied his claim in May of 1984. Mr. Amick applied for benefits
a third time in March of 2000, and this time the District
Director awarded benefits. On appeal to the ALJ, the award was
affirmed, on the grounds that Mr. Amick had proven the existence
of total disability due to pneumoconiosis.
In affirming the District Director’s award of benefits, the
ALJ considered the opinions of numerous physicians, all of whom
agreed that Mr. Amick had a chronic obstructive pulmonary
disease (COPD) which rendered him “totally disabled” as defined
6
by federal regulations. See 20 C.F.R. § 718.204(b)(1). The
doctors disagreed, however, as to the cause of Mr. Amick’s
impairment. Mr. Amick’s doctors -- Drs. Cohen and Koenig, as
well as a doctor for the Department of Labor, Dr. Rasmussen --
found that his COPD was due, at least in part, to exposure to
coal mine dust during his coal mine employment. Westmoreland’s
doctors -- Drs. Zaldivar, Stewart, Castle, Spagnolo, and Morgan,
as well as a doctor for the Department of Labor, Dr. Daniel --
all opined that Mr. Amick’s impairment was the result of his
long-time smoking habit.
The ALJ found the opinions of Mr. Amick’s doctors more
persuasive than those of Westmoreland’s physicians, and thus
awarded benefits to Mr. Amick. The BRB affirmed the ALJ’s
decision. Amick v. Westmoreland Coal Co., BRB No. 03-0256 BLA
(Jan. 21, 2004). On appeal, this court affirmed the BRB’s
holdings that one, Mr. Amick’s claim was timely filed, that two,
the ALJ did not err in applying amended portions of 20 C.F.R. §§
718 and 725 to Mr. Amick’s claims, and that three, the ALJ
applied the correct test to determine whether Mr. Amick had
established a material change in condition. Westmoreland Coal
Co. v. Amick, 123 Fed. Appx. 525, 527-530 (4th Cir. 2004).
However, this court vacated the award of black lung
benefits to Mr. Amick and remanded the case for further
7
consideration on the grounds that, although the BRB’s
conclusions regarding the credibility of the doctors “might be
supported by substantial evidence,” the reasons given by the ALJ
for discrediting Westmoreland’s doctors were not supported by
substantial evidence in the record.1 Id. at 533.
On remand, the ALJ again awarded benefits to Mr. Amick. In
that opinion, the ALJ noted that the opinions of Drs. Zaldivar,
Stewart, Castle, Spagnolo, Cohen, and Koenig were entitled to
the most deference because those physicians were board-certified
in pulmonary disease. Again, though, the ALJ found the opinions
of Drs. Cohen and Koenig more persuasive than those of the other
physicians, noting that those opinions -- unlike those of
Westmoreland’s doctors -- discussed the latent and progressive
nature of pneumoconiosis, were well supported by medical
literature most consistent with the findings of the Department
of Labor regarding the nature of pneumoconiosis, and took into
1
In particular, this court noted that, contrary to the ALJ’s
findings otherwise, Drs. Zaldivar, Stewart, and Castle had
indeed found that Mr. Amick’s COPD was unrelated to his coal
mining employment, and Drs. Zaldivar, Stewart, Castle, and
Spagnolo had in fact addressed legal pneumoconiosis in their
opinions. Amick, 123 Fed. Appx. at 532-33. Further, we held
that Westmoreland’s physicians were not, as the ALJ had
suggested, required to consider medical literature presented by
Dr. Koenig. Finally, we noted that Dr. Morgan’s opinion did not
contradict the BLBA, and thus the ALJ erred in discrediting it
for that reason alone. Id. at 532-33.
8
account the possible effects of both cigarette smoking and coal
mine dust exposure on Mr. Amick’s condition. The BRB affirmed,
noting that the ALJ had followed this court’s directives on
remand and had properly exercised his discretion in determining
which medical opinions were most persuasive.
Westmoreland timely appeals.
II.
Westmoreland attacks the ALJ’s reasons for awarding
benefits to Mr. Amick as irrational and unsupported by
substantial evidence. We must affirm the decision of the BRB if
it properly determined that the ALJ’s findings were supported by
substantial evidence in the record considered as a whole. See,
e.g., Doss v. Dir., OWCP, 53 F.3d 654, 658 (4th Cir. 1995). In
so doing, we bear in mind that it is the role of the ALJ -- who
has familiarity with this field -- to make factual findings, to
evaluate the credibility of witnesses, and to weigh conflicting
evidence.
Id. Moreover, we note that “a reviewing body may not
set aside an inference merely because it finds the opposite
conclusion more reasonable or because it questions the factual
basis.”
Id. at 659. Guided by these principles, we turn to
Westmoreland’s specific claims.
9
A.
Westmoreland first contends that the ALJ’s decision to
credit the opinions of Drs. Cohen and Koenig was irrational and
unsupported by substantial evidence. Contrary to Westmoreland’s
argument, however, the evidence in the record supporting the
ALJ’s conclusions is sufficiently substantial “as a reasonable
mind might accept as adequate to support” the ALJ’s decision.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); see also 5
U.S.C. § 557(c)(3)(A) (requiring an ALJ to provide an adequate
explanation for his findings and conclusions). In particular,
the ALJ first noted that both Drs. Cohen and Koenig, unlike
Westmoreland’s physicians, recognized and discussed the latent
and progressive nature of pneumoconiosis. For example, as the
BRB pointed out, both Drs. Koenig and Cohen considered the
relationship between the progressive nature of Mr. Amick’s
disability (as shown by Mr. Amick’s worsening pulmonary function
test results from 1983 to 2001, his worsening diffusion
impairment from 1991 to 2001, and his worsening hypoxemia at
rest) and the progressive nature of legal and clinical
pneumoconiosis.
The ALJ also explained that the opinions of Drs. Cohen and
Koenig included a thorough discussion of (and were well
supported by) medical literature that was consistent with the
10
Department of Labor’s findings that pneumoconiosis is a latent
and progressive disease, and that an obstructive impairment may
be “legal pneumoconiosis.” In fact, Dr. Koenig’s conclusions
were supported by forty-two published, peer-reviewed articles.
Finally, the ALJ credited the opinions of Drs. Cohen and Koenig
because, in contrast with the opinions of Westmoreland’s
doctors, they both specifically and clearly addressed the
possible contribution of both cigarette smoke and coal dust to
Mr. Amick’s disability. See Peerless Eagle Coal Co. v. Taylor,
107 F.3d 867, 867 (Table) (4th Cir. 1997) (approving the ALJ’s
decision to discredit a physician for failing to explain his
conclusions “that smoking was the sole cause of the miner’s
breathing impairment . . . and that coal dust exposure played no
role at all.”) As Dr. Koenig’s report explained, the importance
of considering both possible contributing factors is highlighted
by the findings of numerous medical studies, which indicate that
the symptoms, pulmonary function tests, and chest x-ray
appearance of COPD are identical regardless of whether the COPD
is caused by coal dust, cigarette smoke, or both.
Nonetheless, Westmoreland contends that the ALJ’s reasons
for crediting the opinions of these two doctors were invalid.
To begin, Westmoreland argues that the black lung regulations do
not demand that physicians discuss the latent and progressive
11
nature of pneumoconiosis, and thus, the ALJ’s decision to credit
the opinions of Drs. Cohen and Koenig for doing so was error.
While true that the regulations do not impose such a
requirement, considering that both the black lung regulations as
well as numerous, long-standing decisions of the courts of
appeals recognize the progressivity of pneumoconiosis, the ALJ
was not precluded from considering as more persuasive the
opinions of those doctors who took that characteristic of
pneumoconiosis into account. This is especially true in this
case, given that the worsening of Mr. Amick’s symptoms did not
occur until eight years after he retired from his coal mining
employment.
Westmoreland also insists that Drs. Cohen and Koenig’s
thorough discussion of medical literature cannot provide a basis
for the ALJ’s decision to credit his opinion, because the ALJ
failed to “resolv[e] the conflicts” between the literature cited
by Drs. Cohen and Koenig and that cited by Drs. Zaldivar and
Morgan. However, as the ALJ recognized, and as the BRB
explained in detail, the Department of Labor already reviewed
the medical and scientific literature before promulgating its
revised regulations. See generally 65 Fed. Reg. 79,937-51 (Dec.
20, 2000). The ALJ’s decision to credit Drs. Cohen and Koenig
for their thorough discussion of the medical literature was
12
therefore valid, in that it was, as the ALJ and BRB made clear,
more consistent with the Department of Labor’s findings that
pneumoconiosis is latent and progressive and that an obstructive
impairment may be “legal pneumoconiosis.” 20 C.F.R.
§ 718.201(a)(2), (c).
B.
Westmoreland next contends that the ALJ’s decision to
discredit Westmoreland’s doctors was irrational and unsupported
by substantial evidence. Again, however, the ALJ’s decision to
afford less weight to the opinions of Westmoreland’s doctors is
amply supported by evidence in the record. Regarding Dr.
Zaldivar specifically, the ALJ found his opinion less persuasive
because he made contradictory statements about the relevance of
x-ray evidence in diagnosing pneumoconiosis. For example, Dr.
Zaldivar acknowledged that a positive chest x-ray finding was
not needed for a diagnosis of coal workers’ pneumoconiosis, yet
he also stated that “[t]he x-ray is absolutely necessary to
determine that the exposure has been high enough for [Mr. Amick]
to inhale and to retain the dust.” See Midland Coal Co. v.
Dir., OWCP, 358 F.3d 486, 492 (7th Cir. 2004) (approving a
similar ALJ finding on the grounds that requiring x-ray evidence
of pneumoconiosis is contrary to the BLBA).
13
Moreover, regarding Drs. Daniel, Castle, Spagnolo, Stewart,
and Morgan, the ALJ found their opinions less persuasive because
none of them took into account the latent and progressive nature
of pneumoconiosis. For example, Dr. Castle concluded that Mr.
Amick’s impairment could not have been caused by coal dust
exposure because Mr. Amick stopped working in 1983 and the
deterioration of his condition began in 1991. Similarly, Dr.
Stewart cited Mr. Amick’s deterioration after 1991 as a basis
for attributing his COPD solely to cigarette smoking. These
findings, as both the ALJ and the BRB pointed out, ignore the
fact that pneumoconiosis is a latent and progressive disease.
See, e.g., Roberts & Schaefer Co. v. Dir., OWCP, 400 F.3d 992,
999 (7th Cir. 2005) (holding that it is appropriate for an ALJ
to give less weight to a physician’s opinion when it lacked
consideration of the latent and progressive nature of
pneumoconiosis); Sea “B” Mining Co. v. Dunford, 188 Fed. Appx.
191, 199 (4th Cir. 2006) (same); Four L Coal Co. v. Dir., OWCP,
157 Fed. Appx. 551, 555 (4th Cir. 2005) (same); see also Lewis
Coal Co. v. Dir., OWCP,
373 F.3d 570, 580 (4th Cir. 2004)
(“Little weight can be given to medical findings that conflict
with the BLBA’s implementing regulations,” including the finding
that pneumoconiosis is a “progressive disease.”).
14
Finally, the ALJ found the opinions of all of
Westmoreland’s doctors less persuasive than those of Drs. Cohen
and Koenig because they failed to take into account both
cigarette smoking and coal mine dust exposure as potential
causes of Mr. Amick’s COPD. In particular, the ALJ discredited
the opinions of Drs. Daniel, Castle, Spagnolo, and Stewart for
failing to explain why no part of Mr. Amick’s disability was due
to thirty-three years of coal dust exposure. See Island Creek
Coal Co. v. Compton, 211 F.3d 203, 213 (4th Cir. 2000)
(approving as valid a similar ALJ finding). Relatedly, the ALJ
explained that the opinions of Drs. Daniel, Morgan, and Zaldivar
relied on little more than negative x-ray findings to support
their conclusion that Mr. Amick’s impairment was solely the
result of cigarette smoking. See 30 U.S.C. § 923(b). (“[N]o
claim for benefits . . . shall be denied solely on the basis of
the results of a chest roentgenogram.”)
Westmoreland, however, mounts three primary challenges to
the ALJ’s explanations for discrediting the opinions of these
doctors. First, Westmoreland contends that the ALJ erred by
“trying to manufacture conflicts in Dr. Zaldivar’s testimony”
regarding the necessity of a positive chest x-ray. As the BRB
recognized, however, there is ample support in the record
showing that at times Dr. Zaldivar indicated that a chest x-ray
15
was not needed to establish the existence of pneumoconiosis, and
at others he indicated that a positive chest x-ray was required.
Amick, BRB No. 05-1000 BLA at 4-5 (citing various portions of
the record).
Westmoreland also contends that the ALJ erred in
discrediting the opinions of Drs. Daniel, Castle, Spagnolo,
Stewart, and Morgan for not discussing the latent and
progressive nature of pneumoconiosis. However, we already
discussed above that the ALJ may consider medical opinions less
persuasive if they do not discuss the progressivity of
pneumoconiosis. Further, we reject Westmoreland’s additional
argument that the ALJ’s decision to discredit these physicians
for not discussing pneumoconiosis’s progressivity constituted an
impermissible retroactive application of 20 C.F.R. § 718.201(c).
Westmoreland has already challenged the application of the
revised 20 C.F.R. §§ 718 and 725 to Mr. Amick’s claim, and in
our 2004 decision, we held that the ALJ did not err in applying
the amended regulations to that claim. Amick, 123 Fed. Appx. at
530. That decision is the “law of the case,” and we thus
decline to revisit Westmoreland’s challenge to the application
of 20 C.F.R. § 718.201 here. See Arizona v. California, 460
U.S. 605, 618 (1983).
16
Finally, Westmoreland argues that the ALJ impermissibly
shifted the burden of proof to Westmoreland’s doctors by
requiring them to “rule out” coal dust exposure as a cause of
Mr. Amick’s COPD. Westmoreland is of course correct that the
claimant has the burden of proving every element of entitlement
to benefits under the BLBA. See 5 U.S.C. § 556(d); Dir., OWCP
v. Greenwich Colleries, 512 U.S. 267, 280-81 (1994). However,
nothing about the ALJ’s decision to discredit Westmoreland’s
doctors for not discussing coal dust as a potential contributing
cause of Mr. Amick’s COPD relieved Drs. Cohen and Koenig of
their burden to prove every element of Mr. Amick’s claim for
benefits. And as discussed above, Drs. Cohen and Koenig
supported their conclusions that Mr. Amick’s totally disabling
impairment was due, at least in part, to thirty-three years of
coal mine dust exposure. Nevertheless, even if such burden
shifting occurred, the ALJ’s error was harmless here because, as
discussed, the ALJ provided numerous other valid reasons for
giving less weight to the opinions of Westmoreland’s doctors.2
2
Westmoreland also argues that the ALJ erred in discrediting
Drs. Zaldivar and Daniel on the grounds that they supported
their conclusions regarding the cause of Mr. Amick’s COPD with
little other than x-ray evidence. Specifically, Westmoreland
contends that this finding is factually inaccurate, because Drs.
Zaldivar and Daniel also cited Mr. Amick’s response to
bronchodilator treatment to bolster their conclusions. The BRB
rejected this argument on the grounds that bronchodilator
17
Westmoreland sets forth additional challenges to the ALJ’s
determinations regarding the credibility of the physicians, all
of which we have reviewed with care and find lack merit. In
essence, this case required the ALJ to weigh the credibility of
various opinions from a number of highly qualified doctors. In
so doing, the ALJ chose which opinions he found most credible,
and he provided an adequate and reasonable explanation for his
choice. See 5 U.S.C. § 557(c)(3)(A). It is not our job to
serve as a “super ALJ” and re-weigh all of the evidence, as
Westmoreland essentially urges, in order to reach a contrary
result.
For the foregoing reasons, the order of the BRB is
affirmed.
AFFIRMED
treatment response is unrelated to the potential causes of Mr.
Amick’s COPD. Amick, BRB No. 05-1000 BLA at 10. Nevertheless,
even if, as Westmoreland contends, the BRB’s rejection of this
argument constituted a medical conclusion that lacks support in
the record, the ALJ articulated numerous other valid reasons for
discrediting the opinions of Drs. Zaldivar and Daniel.
18
GREGORY, Circuit Judge, dissenting:
The regulation defining pneumoconiosis does not require a
physician to discuss the Alatent and progressive@ nature of
pneumoconiosis. See 20 C.F.R. ' 718.201. Since the
Administrative Law Judge (AALJ@) incorrectly discredited
Westmoreland=s physicians for their failure to do so, and
committed several factual errors1, I am compelled to dissent.
The parties agree that Amick suffers from chronic
obstructive pulmonary disease (ACOPD@) that is totally disabling.
Their dispute is limited to whether Amick=s COPD is caused by
coal mine dust, smoking, or a combination of both. The
employer=s doctors - Drs. Zaldivar, Stewart, Castle, Daniel,
Spagnolo, and Morgan - uniformly opine that Amick=s habit of
smoking approximately one pack of cigarettes per day for nearly
forty years was the cause of his COPD. Each of Westmoreland=s
doctors provided significant testimony detailing the rationale
for their decisions, yet the ALJ discounted all of the doctors=
conclusions, in part, because they did not address the latency
or progressiveness of pneumoconiosis.2 For example, the ALJ
1
Judge Smith=s opinion concurring and dissenting from the
the Benefits Review Board=s (ABRB@) decision sets out some of
these factual errors. (See J.A. 694-697.)
2
While many of the doctors did not explicitly address this
issue, Dr. Zaldivar did so. Indeed, the Benefits Review Board
(ABRB@) quoted the very portion of Dr. Zaldivar=s trial testimony
19
dismissed Dr. Spagnolo=s opinion because he Adid not discuss the
progressive and latent nature of coal mine dust exposure.@ (J.A.
674.) The majority affirmed the ALJ=s reliance on this Aomission@
to devalue the testimony of Westmoreland=s doctors, but it does
not cite to any direct precedent in support. The cases cited by
the majority stand for the unassailable proposition that a
doctor cannot base his opinion on the Aflawed premise that a
miner with no apparent pulmonary impairment upon leaving the
coal mines could never thereafter develop a coal dust related
impairment.@ Four L Coal Co. v. Dir., OWCP, 157 Fed. Appx. 551,
555 (4th Cir. 2005). However, in the instant case, only Dr.
Castle, in my view committed this error. The testimony and
findings of Westmoreland=s remaining physicians did not indicate
that any of them disagreed with the fact that pneumoconiosis is
a latent and progressive disease.
Indeed, as the majority correctly points out, § 718.201(c)
Amade clear the long-held understanding by the courts of appeals
that pneumoconiosis is a >latent and progressive disease.=@ (Maj.
Op. 4.) Beyond the court of appeals, both the Secretary of Labor
and the National Institute of Occupational Health and Safety
concurred that § 781.201(c) codified the widely accepted
in which he specifically addressed the progressiveness of
pneumoconiosis. (J.A. 686, n.3.)
20
scientific view regarding the latency and progressiveness of
pneumoconiosis. The very structure of the Black Lung Benefits
Act (ABLBA@) implicitly recognizes the latency and
progressiveness of pneumoconiosis by allowing miners to refile
their previously unsuccessful claims if their medical condition
has changed.
The sole question that doctors must address in evaluating a
coal miner=s eligibility for black lung benefits under the BLBA
is whether the claimant, at the time of the exam, has clinical
or legal pneumoconiosis. Neither the literal terms of the
relevant regulations nor any case law provide that an employer=s
doctors must discuss the latency or progressiveness of
pneumoconiosis presumably because § 718.201(c) explicitly
provides that this is the case.
While there may be substantial evidence to support awarding
Amick benefits, I would remand this case to the ALJ for further
consideration in light of this legal error and for the reasons
set forth in Judge Smith’s opinion. As such, I respectfully
dissent.
21
