Bethenergy Mines, Inc. v. Rowan , 50 F. App'x 578 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BETHENERGY MINES, INCORPORATED, 
Petitioner,
v.
SHIRLEY ROWAN, widow of Delmer
B. Rowan; DIRECTOR, OFFICE OF  No. 01-2148
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order of
the Benefits Review Board.
(00-0980-BLA)
Argued: May 6, 2002
Decided: September 4, 2002
Before NIEMEYER and GREGORY, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: William Steele Mattingly, JACKSON & KELLY,
P.L.L.C., Morgantown, West Virginia, for Petitioner. Richard K.
2 BETHENERGY MINES v. ROWAN
Wehner, WEHNER LAW OFFICES, Kingwood, West Virginia, for
Respondent Rowan. Rita A. Roppolo, UNITED STATES DEPART-
MENT OF LABOR, Washington, D.C., for Respondent Director. ON
BRIEF: Eugene Scalia, Solicitor of Labor, Donald S. Shire, Asso-
ciate Solicitor, Patricia M. Nece, Counsel for Appellate Litigation,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Respondent Director.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case comes before us for a second time on review from the
Benefits Review Board ("Board"). For the reasons that follow, we
affirm the ALJ’s order awarding the appellee survivor’s benefits
under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945 ("Act").
I.
Delmer B. Rowan ("Rowan") worked as a coal miner for at least
twenty-four years.1 It is undisputed that in September 1992, Rowan
died from acute respiratory failure due to chronic obstructive pulmo-
nary disease ("COPD"), and at the time of Rowan’s death, pneumoco-
niosis was found in his lungs.2 Appellee Shirley L. Rowan
1
He also smoked approximately a pack of cigarettes a day for 47 years.
J.A. 211.
2
In December 1988, Rowan complained of significant shortness of
breath, coughing, and wheezing. J.A. 34. Rowan was diagnosed with
chronic obstructive pulmonary disease ("COPD") of a moderate to severe
degree in January 1989 and was placed on respiratory medication. J.A.
33. He was subsequently treated with steroids, but continued to suffer
from shortness of breath. J.A. 31. All of the physicians in this case
agreed that Rowan’s cigarette smoking caused, at least in part, his severe
pulmonary emphysema.
BETHENERGY MINES v. ROWAN 3
("Claimant"), Rowan’s surviving spouse, applied for survivor’s bene-
fits under the Act, asserting that pneumoconiosis substantially con-
tributed to her husband’s death.
The Office of Workers’ Compensation Programs initially approved
Claimant’s application for benefits, but at the request of BethEnergy
Mines, Inc. ("BethEnergy"), Rowan’s former employer, it forwarded
the claim to the Office of Administrative Law Judges. An Administra-
tive Law Judge ("ALJ") weighed the evidence of the ten doctors who
rendered opinions in this case. All ten doctors agreed that pneumoco-
niosis was present in Rowan’s lungs, however, their opinions differed
as to the amount of pneumoconiosis present. Five doctors—Drs.
Franyutti,3 Gaziano, Harron, Rasmussen, and Doyle—were of the
opinion that pneumoconiosis contributed to the miner’s death. The
other five doctors—Drs. Bush, Kleinerman, Fino, Renn, and Hutchins
—opined that the pneumoconiosis in Rowan’s lung tissue was too
minimal to play any role in causing Rowan’s death. Each doctor sub-
mitted a letter explaining his medical opinion and/or was deposed on
his medical opinion as to the cause of Rowan’s death.
In the 1994 order, ALJ Robert S. Amery credited the testimony of
the doctors who concluded that pneumoconiosis substantially contrib-
uted to Rowan’s death. He stated:
While there are an equal number of experts on both sides,
I am more persuaded by the evidence in favor of the Claim-
ant because: (1) Dr. Franyutti was the one who performed
the autopsy and was in the best position to make a judgment,
while none of the Employer’s doctors saw the miner after he
died, and (2) Dr. Gaziano was hired by the District Director
to make an evaluation and not by either the Claimant or the
Employer, so he has a more impartial status. Both Drs.
Franyutti and Gaziano believed that pneumoconiosis con-
tributed to the miner’s death. Moreover, in considering this
issue, I am mindful of the miner’s many years of coal mine
employment. Under these circumstances, I find that the
Claimant has established that pneumoconiosis was a sub-
3
Dr. Franyutti was the autopsy prosector.
4 BETHENERGY MINES v. ROWAN
stantially contributing cause or factor leading to the miner’s
death within the meaning of Section 718.205(c).
J.A. 225. The ALJ then ordered BethEnergy to pay Claimant’s bene-
fits.
BethEnergy appealed the ALJ’s decision to the Board, and the
Board affirmed the ALJ’s finding. BethEnergy next filed a petition
for review with this Court. We granted the petition, and in an unpub-
lished opinion, vacated the Board’s decision with instructions to
remand the case to the ALJ. We found that:
[T]he ALJ had no basis for concluding that Dr. Franyutti’s
microscopic examination was superior to the opinions of
Drs. Kleinerman, Bush, and Hutchins. The ALJ also did not
provide an adequate rationale for concluding that Dr.
Franyutti’s opportunity to conduct a gross examination ren-
dered his opinion superior to the opinions of Drs. Kleiner-
man, Bush, and Hutchins, who only conducted microscopic
examinations.
Bethenergy Mines, Inc. v. Director, Office of Workers’ Compensation
Programs, U.S. Dept. of Labor, 92 F.3d 1176, 1996 WL 423126, at
*3 (4th Cir. 1996) (emphasis added). We therefore held that "because
the ALJ did not evaluate or sufficiently explain the weight accorded
the relevant evidence, the case must be remanded to the ALJ for fur-
ther proceedings." Id. at *4.
The Board remanded the case to the ALJ,4 who, like the first ALJ,
found that "better reasoned medical opinion evidence establishes that
the miner’s pneumoconiosis substantially contributed to [Rowan’s]
death, as provided by § 718.205(c)(2)," J.A. 246, and ordered
BethEnergy to pay Claimant survivor’s benefits. BethEnergy again
appealed the ALJ’s decision to the Board. The Board found that the
ALJ failed to adequately explain why he accepted the opinions of Drs.
Rasmussen, Doyle, and Harron. It vacated the ALJ’s finding and once
more remanded the case for reconsideration.
4
On remand, the case was assigned to a different ALJ, Thomas M.
Burke.
BETHENERGY MINES v. ROWAN 5
On a third remand, ALJ Burke found that Rowan’s death was
caused or significantly contributed to by the admittedly present pneu-
moconiosis. ALJ Burke concluded that this determination could be
based on either (1) the extent of the pneumoconiosis throughout
Rowan’s lungs, or (2) the fact that Rowan’s emphysema was caused
in part by coal dust exposure. He ordered BethEnergy to pay Claimant
survivor’s benefits, and BethEnergy again appealed the ALJ’s deci-
sion to the Board. The Board affirmed on both grounds. BethEnergy
filed its second petition for review, which is now pending before this
Court.5
II.
In black lung cases, we review a claim under the Act to determine
whether substantial evidence supports the factual findings of the ALJ
and whether the legal conclusions of the Board and the ALJ are ratio-
nal and consistent with applicable law. Bill Branch Coal Corp. v.
Sparks, 213 F.3d 186, 190 (4th Cir. 2000). "Substantial evidence con-
sists of sufficient relevant evidence to convince a reasonable mind
that the evidence is adequate to support a conclusion." Scott v. Mason
Coal Co., 289 F.3d 263, 267 (4th Cir. 2002); see Milburn Colliery Co.
v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998). Therefore, "we must
affirm the Board if it properly determined that the ALJ’s findings are
supported by substantial evidence." Doss v. Director, Office of Work-
ers’ Compensation Programs, 53 F.3d 654, 659 (4th Cir. 1995).
III.
BethEnergy asserts that the ALJ erred (1) in weighing the doctors’
opinions regarding the amount of pneumoconiosis in Rowan’s lungs,
and (2) in finding that Rowan’s centrilobular emphysema6 was caused
by coal dust exposure. Regarding the first alleged error, the ALJ, in
determining that the evidence supported a finding of diffuse and mod-
erate pneumoconiosis, again credited Dr. Franyutti. The ALJ detailed
5
Claimant and the Director of the Office of Workers’ Compensation
Programs, United States Department of Labor, are respondents in this
case.
6
Centrilobular emphysema is a type of pulmonary emphysema and
COPD. See J.A. 262.
6 BETHENERGY MINES v. ROWAN
the opinions of each doctor, and explained that Dr. Franyutti had the
"superior opportunity" to observe the lung tissue because he "per-
formed the autopsy, prepared the slides, and observed the lung tissue
in total." J.A. 262. We need not resolve this issue because even
assuming that the evidence was insufficient to support the finding that
the pneumoconiosis in Rowan’s lung tissue was of such a level to
have played a role in his death, the ALJ’s finding that Rowan’s
emphysema was caused in part by coal dust is sufficient to award sur-
vivor benefits here.
For an ALJ to award survivor benefits, competent medical evi-
dence must establish that the miner’s death was either due to pneumo-
coniosis or pneumoconiosis hastened the miner’s death in any way.
20 C.F.R. § 718.205(c)(1)-(2) (1992). See Clinchfield Coal Co. v.
Fuller, 180 F.3d 622, 623 (4th Cir. 1999). This burden is met where
the miner (1) had pneumoconiosis,7 (2) the pneumoconiosis arose
from coal dust exposure, (3) the coal dust exposure was caused by
coal mine employment, and (4) the pneumoconiosis hastened death in
any way. 20 C.F.R. §§ 718.201, 718.203(b), 718.205(c)(2) (1992);
Shuff v. Cedar Coal Co., 967 F.2d 977, 979-80 (4th Cir. 1992).
In this case, it is undisputed that (1) Rowan had at least minimal
simple pneumoconiosis, (2) he had centrilobular emphysema, a type
of COPD, See Warth v. Southern Ohio Coal Co., 60 F.3d 173, 175
7
In 1992, pneumoconiosis was defined as:
[A] chronic dust disease of the lung and its sequelae, including
respiratory and pulmonary impairments, arising out of coal mine
employment. This definition includes but is not limited to coal
workers’ pneumoconiosis . . . . For purposes of this definition,
a disease "arising out of coal mine employment" includes any
chronic pulmonary disease resulting in respiratory or pulmonary
impairment significantly related to or substantially aggravated
by, dust exposure in coal mine employment.
20 C.F.R. § 718.201 (1992) (emphasis added). Claimant asserts that the
Court should apply the 2001 version of 20 C.F.R. § 718.201, which
includes COPD in its definition of pneumoconiosis, as opposed to the
1992 version, which does not. We apply the language of the 1992 ver-
sion, which encompassed COPD within the definition. See Warth v.
Southern Ohio Coal Co., 60 F.3d 173, 175 (4th Cir. 1995).
BETHENERGY MINES v. ROWAN 7
(4th Cir. 1995) (holding that COPD is encompassed within the defini-
tion of pneumoconiosis), (3) COPD was a substantial contributor to
Rowan’s death, and (4) Rowan worked in the mines for at least 24 years.8
Thus, the only question in dispute is whether Rowan’s centrilobular
emphysema was caused by coal dust exposure.
BethEnergy asserts that the ALJ improperly accorded the most
weight to Dr. Rasmussen, who opined that minimal simple pneumo-
coniosis with coal mine dust exposure is sufficient to cause centrilo-
bular emphysema. It proffers the medical opinions of Drs. Renn,
Kleinerman, Fino, Hutchins, and Bush, who opined that coal dust
exposure does not cause centrilobular emphysema.
The ALJ explained that he found Dr. Rasmussen’s testimony most
persuasive because Dr. Rasmussen offered extensive research to sup-
port his opinion. Dr. Rasmussen cited seven articles from medical
journals and six epidemiologic studies to support his position. J.A.
260. No other doctor offered such extensive research.
In his opinion, ALJ Burke offered concrete reasons for discounting
the opinions of the other doctors who were critical of Dr. Rasmussen.
He noted that Dr. Renn’s testimony lacked the "definitiveness to out-
weigh the better reasoned and better supported report of Dr. Rasmus-
sen." J.A. 263. Dr. Kleinerman’s disagreement with the medical
experts Dr. Rasmussen cited, were "in the most general of terms." Dr.
Kleinerman did not "critique any particular study or any specific data
behind a study." Id.Furthermore, the ALJ found that Dr. Fino’s criticisms of studies
cited by Dr. Rasmussen are "insufficient to dismiss the studies that
support Dr. Rasmussen’s opinion," id., because while Dr. Fino dis-
puted the "underlying data" of studies offered by Dr. Rasmussen, he
8
If a miner has pneumoconiosis, it is a rebuttable presumption that the
pneumoconiosis arose from coal mine employment if the miner worked
in coal mines for 10 years or more. 20 C.F.R. § 178.203(b)(1992). In this
case, it is uncontradicted that Rowan worked in coal mines for at least
24 years. Therefore, the ALJ properly presumed that Rowan’s pneumo-
coniosis arose out his mine employment.
8 BETHENERGY MINES v. ROWAN
did not specify which studies of Dr. Ruckley had evidentiary problems.9
J.A. 264. Further, the ALJ stated that, "Dr. Fino doesn’t contend that
Dr. Rasmussen is incorrect in his interpretation of a study . . . support-
ing the relationship between coal dust exposure and centrilobular
emphysema." Id. While Dr. Fino discussed a more recent study that
purported to support his position, he did not "identify the study by
title or author." Id. The ALJ added:
More importantly [Fino’s] characterization of the proposi-
tion for which the [more recent] study stands, that is, it dis-
tinguishes the centrilobular emphysema from smoking from
the focal emphysema arising out of coal mine inhalation, is
not inconsistent with Dr. Rasmussen’s opinion that centrilo-
bular emphysema can also be caused or aggravated by coal
dust.
Id. The ALJ also credited Rasmussen’s opinion over the opinions of
Drs. Hutchins and Bush because their opinions were not as well sup-
ported or documented as Dr. Rasmussen’s. He explained that Dr.
Hutchins and Bush’s reports did not even indicate an awareness of the
studies referenced by Dr. Rasmussen.
We find that the ALJ gave specific and sufficient reasons for cred-
iting Dr. Rasmussen’s opinion, and substantial evidence supports the
ALJ’s finding that Rowan’s coal dust exposure caused his centrilobu-
lar emphysema. We therefore conclude that the ALJ did not err in
determining that coal dust exposure was a substantially contributing
cause of Rowan’s death.
IV.
Accordingly, the opinion of the Board is affirmed.
AFFIRMED
9
Dr. Rasmussen cited two articles that Dr. Ruckley wrote on emphy-
sema and coal dust exposure.