Island Creek Coal Co v. Compton ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ISLAND CREEK COAL COMPANY,
Petitioner,
v.
DENNIS E. COMPTON; DIRECTOR,
No. 98-2051
OFFICE OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board.
(97-1477-BLA)
Argued: March 2, 2000
Decided: May 2, 2000
Before WILKINS and LUTTIG, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia,
sitting by designation.
_________________________________________________________________
Vacated and remanded by published opinion. Judge Wilkins wrote the
opinion, in which Judge Luttig and Senior Judge Michael joined.
_________________________________________________________________
COUNSEL
ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C.,
Charleston, West Virginia, for Island Creek. Michelle Seyman Ger-
dano, Office of the Solicitor, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Director. Perry Duane McDaniel,
CRANDALL, PYLES, HAVILAND & TURNER, L.L.P., Charleston,
West Virginia, for Compton. ON BRIEF: Henry L. Solano, Solicitor
of Labor, Donald S. Shire, Associate Solicitor, Christian P. Barber,
Counsel for Appellate Litigation, Office of the Solicitor, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Direc-
tor. George P. Surmaitis, CRANDALL, PYLES, HAVILAND &
TURNER, L.L.P., Charleston, West Virginia, for Compton.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
Island Creek Coal Company (Island Creek or the company) peti-
tions for review of a decision of the Benefits Review Board (the
Board or BRB) affirming an award by an Administrative Law Judge
(ALJ) of black lung benefits to Dennis E. Compton. See 30 U.S.C.A.
§§ 901-945 (West 1986 & Supp. 1999). For the reasons that follow,
we vacate the order of the Board and remand with instructions for the
Board to remand the action to an ALJ for further proceedings.
I.
Dennis Compton worked in the coal mines for over thirty years,
primarily for Island Creek. For several years preceding his retirement
in 1995, Compton operated a bulldozer on a mound of coal processing
refuse; the ALJ characterized this work as "extremely dusty." J.A.
377. Compton smoked from the late 1950s until 1991 and resumed
smoking in 1997. At times, Compton smoked up to one and one-half
packs of cigarettes a day.
Compton filed this duplicate claim for black lung benefits on May
24, 1995.1 The claim was denied initially, and an administrative hear-
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1 Compton filed his first claim for black lung benefits in 1973; that
claim was eventually denied. The instant claim is therefore a "duplicate"
claim subject to denial absent proof of a material change in conditions.
2
ing was held. Both parties and the Director of the Office of Workers'
Compensation Programs (the Director) submitted evidence at the
hearing.
The ALJ first considered the x-ray evidence, which consisted of 17
chest x-rays that had been read a total of 59 times by 14 physicians.
Only five of the readings were positive for pneumoconiosis. The ALJ
concluded that Compton had "not established by a preponderance of
chest x-ray evidence that he had pneumoconiosis."2 J.A. 381.
The conflicting reports of six physicians were also submitted.
Dr. Livia Cabauatan examined Compton in 1979 and concluded that
he had asymptomatic chronic obstructive pulmonary disease (COPD)
related to his coal dust exposure. Dr. Dominic Gaziano, who exam-
ined Compton in 1987, concluded that Compton had coal workers'
pneumoconiosis and COPD. Dr. Oscar Carrillo examined Compton in
1995 and diagnosed Compton with severe obstructive pulmonary dis-
ease caused by exposure to coal dust and cigarette smoke. Dr. George
Zaldivar examined Compton in 1996 and also reviewed Compton's
medical records. Dr. Zaldivar determined that Compton did not have
coal workers' pneumoconiosis, but rather that Compton suffered from
emphysema caused by smoking and possibly a family history of
asthma. Dr. James Castle did not examine Compton but reviewed his
medical records and also concluded that Compton did not have coal
workers' pneumoconiosis, but rather suffered from emphysema
caused by smoking. Finally, Dr. Gregory Fino concluded after
reviewing Compton's medical records that Compton did not have coal
_________________________________________________________________
See 20 C.F.R. § 725.309 (1999). See generally Lisa Lee Mines v. Direc-
tor, OWCP, 86 F.3d 1358, 1362-65 (4th Cir. 1996) (en banc) (discussing
standard for determining existence of a material change in conditions).
The ALJ determined that Compton demonstrated a material change in
conditions, and Island Creek has not challenged this determination.
2 Two CT scans that had been reviewed by several physicians were also
submitted. None of the CT scan evaluators found pneumoconiosis. The
ALJ noted that the CT scan evidence supported "the chest x-ray determi-
nation of no radiographic evidence of pneumoconiosis," J.A. 381, but
nevertheless accorded the scans little weight because they were not
obtained for the purpose of diagnosing pneumoconiosis.
3
workers' pneumoconiosis but did have a moderate respiratory impair-
ment due to smoking.
The ALJ credited the opinions of Drs. Gaziano and Carrillo, dis-
credited the opinions of Drs. Fino, Zaldivar, and Castle,3 and con-
cluded that Compton had established the existence of pneumoconiosis
by physician opinion evidence. The ALJ also determined that Comp-
ton satisfied the other elements necessary to a black lung claim, and
awarded him benefits. The company appealed to the BRB, which
affirmed the award.
II.
In order to obtain federal black lung benefits, a claimant must
prove by a preponderance of the evidence that: "(1) he has pneumoco-
niosis; (2) the pneumoconiosis arose out of his coal mine employ-
ment; (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); see Dehue Coal Co. v. Ballard, 65 F.3d 1189,
1195 (4th Cir. 1995); 20 C.F.R. §§ 718.201-.204 (1999). Island Creek
argues that the ALJ and BRB erred in concluding that Compton satis-
fied the first and fourth elements of his claim.
We review an order of the BRB by "undertak[ing] an independent
review of the record" to determine whether the ALJ's findings of fact
were supported by substantial evidence. Dehue Coal, 65 F.3d at 1193.
"Substantial evidence is more than a mere scintilla"; it is "such rele-
vant evidence as a reasonable mind might accept as adequate to sup-
port a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938). We review the legal conclusions of the BRB and the ALJ
de novo. See Milburn Colliery, 138 F.3d at 528.
A.
Island Creek argues that the ALJ erred in determining that Comp-
_________________________________________________________________
3 The ALJ did not discuss Dr. Cabauatan's report and did not disclose
his reason for omitting it from consideration.
4
ton established the existence of pneumoconiosis by a preponderance
of the evidence because the ALJ erred in his method of weighing the
evidence and in determining which physicians' opinions to credit. We
address these contentions seriatim.
1.
20 C.F.R. § 718.202(a) provides that
[a] finding of the existence of pneumoconiosis may be made
as follows:
(1) A chest X-ray conducted and classified in
accordance with § 718.102 may form the basis for
a finding of the existence of pneumoconiosis....
....
(2) A biopsy or autopsy conducted and
reported in compliance with § 718.106 may be the
basis for a finding of the existence of pneumoconi-
osis....
(3) If the presumptions described in
§§ 718.304, 718.305 or § 718.306 are applicable,
it shall be presumed that the miner is or was suf-
fering from pneumoconiosis.
(4) A determination of the existence of pneu-
moconiosis may also be made if a physician, exer-
cising sound medical judgment, notwithstanding a
negative X-ray, finds that the miner suffers or suf-
fered from pneumoconiosis as defined in
§ 718.201. Any such finding shall be based on
objective medical evidence such as blood-gas
studies, electrocardiograms, pulmonary function
studies, physical performance tests, physical
examination, and medical and work histories. Such
a finding shall be supported by a reasoned medical
opinion.
5
Island Creek contends that the ALJ erred because he merely weighed
the evidence within each subsection, e.g., x-rays, to determine
whether a preponderance of that type of evidence established pneu-
moconiosis. The company asserts that the proper method is to weigh
the different types of evidence together to determine whether a pre-
ponderance of all of the evidence establishes the existence of pneu-
moconiosis.
The ALJ did in fact evaluate the evidence within subsections (a)(1)
and (a)(4) of § 718.202 to determine whether either type of evidence
established pneumoconiosis, but did not weigh the X-ray evidence
with the medical opinion evidence.4 The BRB approved of this prac-
tice. The Board ruled that as long as the evidence relevant to one sub-
section of § 718.202(a) supports a finding of pneumoconiosis, the rest
of the evidence need not be considered.
We cannot endorse the Board's view. The statute governing the
evidence required to establish a claim for black lung benefits states
that "[i]n determining the validity of claims... all relevant evidence
shall be considered." 30 U.S.C.A. § 923(b). The plain meaning of
this statutory language is that all relevant evidence is to be considered
together rather than merely within discrete subsections of
§ 718.202(a). See Penn Allegheny Coal Co. v. Williams, 114 F.3d 22,
24-25 (3d Cir. 1997); see also Gray v. SLC Coal Co., 176 F.3d 382,
388-89 (6th Cir. 1999) (relying in part on the "all relevant evidence"
language of 30 U.S.C.A. § 923(b) to reject argument that existence of
complicated pneumoconiosis could be determined by weighing evi-
dence within discrete categories of 30 U.S.C.A.§ 921(c)(3) rather
than by weighing evidence from different categories together); Lester
v. Director, OWCP, 993 F.2d 1143, 1145-46 (4th Cir. 1993) (rejecting
argument that the categories within 30 U.S.C.A.§ 921(c)(3) establish
mutually exclusive means of proving complicated pneumoconiosis
such that evidence relevant to the various categories should not be
weighed together, on the basis that such a construction would be
counter to the mandate in 30 U.S.C.A. § 923(b) to consider "all rele-
vant evidence").
_________________________________________________________________
4 Subsections (a)(2) and (a)(3) of§ 718.202 are not relevant to this
appeal. There is no biopsy or autopsy evidence, and the presumptions
described in subsection (a)(3) do not apply to Compton's case.
6
Further, weighing all of the relevant evidence together makes com-
mon sense. Otherwise, the existence of pneumoconiosis could be
found even though the evidence as a whole clearly weighed against
such a finding. For example, suppose x-ray evidence indicated that a
miner had pneumoconiosis, but autopsy evidence established that the
miner did not have any sort of lung disease caused by coal dust expo-
sure. In such a situation, if each type of evidence were evaluated only
within the particular subsection of § 718.202(a) to which it related,
the x-ray evidence could support an award for benefits in spite of the
fact that more probative evidence established that benefits were not
due. See Griffith v. Director, OWCP, 49 F.3d 184, 187 (6th Cir. 1995)
(noting that autopsy evidence is generally accorded greater weight
than x-ray evidence).
Compton asserts that the plain language of § 718.202(a) supports
the Board's view of how evidence of pneumoconiosis should be
weighed. Compton points to the phrase "may also be made" in sub-
section (a)(4), and contends that this phrase indicates that subsection
(a)(4) is an alternative method of proving pneumoconiosis.
We agree that § 718.202(a) lists alternatives; that much is clear
from the plain language of the regulation.5 However, there is nothing
in the language of § 718.202(a) to support a conclusion that satisfac-
tion of the requirements of one of the subsections conclusively proves
the existence of pneumoconiosis even in the face of conflicting evi-
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5 We disagree with Island Creek's contention that because the subsec-
tions are not separated by the word "or," the plain language of the regula-
tion indicates that the various types of evidence should be weighed
together. See Penn Allegheny Coal, 114 F.3d at 25. Even without the
"or," it is clear that the regulation lists alternatives. Subsection (a)(1)
states that x-ray evidence "may form the basis for a finding of the exis-
tence of pneumoconiosis." 20 C.F.R. § 718.202(a)(1). Subsection (a)(2)
provides that biopsy or autopsy evidence "may be the basis for a finding
of the existence of pneumoconiosis." 20 C.F.R.§ 718.202(a)(2). The reg-
ulation further notes that the existence of pneumoconiosis may be pre-
sumed in certain circumstances. See 20 C.F.R. § 718.202(a)(3). Finally,
"[a] determination of the existence of pneumoconiosis may also be
made" if a physician finds pneumoconiosis. 20 C.F.R. § 718.202(a)(4).
Each subsection stands on its own; any one may support a finding of
pneumoconiosis.
7
dence.6 The regulation lists various bases which may be sufficient for
a finding of pneumoconiosis. Thus, absent contrary evidence, evi-
dence relevant to any one of the four subsections may establish pneu-
moconiosis. However, whether or not a particular piece or type of
evidence actually is a sufficient basis for a finding of pneumoconiosis
will depend on the evidence in each case. That the regulation allows
a finding of pneumoconiosis based on x-ray findings simply does not
mean that the regulation allows a finding of pneumoconiosis in every
case in which x-rays indicate the presence of the disease. We read
§ 718.202(a) as giving claimants flexibility in proving their claims,
but not as establishing mutually exclusive bases for demonstrating the
existence of pneumoconiosis.7Cf. Gray, 176 F.3d at 389 (stating that
the disjunctive in 30 U.S.C.A. § 921(c)(3)"serves to give miners flex-
ibility in proving their claims, but does not establish three separate
and independent irrebuttable presumptions").
_________________________________________________________________
6 Subsection (a)(3) refers to various regulations creating presumptions
that a miner is totally disabled due to pneumoconiosis. If one of these
presumptions applies, subsection (a)(3) creates a presumption that the
miner has established the existence of pneumoconiosis. Although the
presumptions referred to in subsection (a)(3) may arise before all rele-
vant evidence has been considered, see, e.g., 20 C.F.R. § 718.304, the
presumption of the existence of pneumoconiosis created by subsection
(a)(3) is rebuttable. Therefore, all evidence relevant to the issue of the
existence of pneumoconiosis will be considered if the employer attempts
to rebut the presumption.
7 Compton argues that if we hold that all relevant evidence must be
weighed together, wealthy coal companies will be able to essentially pur-
chase outcomes by amassing evidence. First, to the extent that this is a
danger, there is nothing about weighing evidence together that would
worsen it; wealthy coal companies also could amass evidence within
each subsection. More importantly, quantity of evidence is not disposi-
tive of an issue. See Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,
440-41 (4th Cir. 1997); see also Underwood v. Elkay Mining, Inc., 105
F.3d 946, 950 (4th Cir. 1997) (concluding that "unduly repetitious evi-
dence" need not be received into the record by an ALJ (emphasis &
internal quotation marks omitted)); cf. id. at 951 (stating that "[t]o the
extent that ALJ's determine that a particular expert's opinion is not, in
fact, independently based on the facts of a particular claim, but is instead
influenced more by the identity of his or her employer, ALJ's have clear
discretion to disregard such an expert's opinion as being of exceedingly
low probative value").
8
The Director forwards a more nuanced position, contending that all
evidence of medical or clinical pneumoconiosis should be weighed
together, and all evidence of legal or statutory pneumoconiosis should
be weighed together, but evidence of the former should not be
weighed with evidence of the latter. That is, he asserts that the x-ray
and CT scan evidence here should not be weighed against the physi-
cian opinion evidence, because these two sets of evidence "address
different questions." Brief for the Federal Respondent at 21.
The Director is correct that the term "pneumoconiosis" has both a
medical and a legal definition. See, e.g., Clinchfield Coal Co. v. Ful-
ler, 180 F.3d 622, 625 (4th Cir. 1999); Hobbs v. Clinchfield Coal Co.,
45 F.3d 819, 821 (4th Cir. 1995). Medical pneumoconiosis is a partic-
ular disease of the lung generally characterized by certain opacities
appearing on a chest x-ray. See Usery v. Turner Elkhorn Mining Co.,
428 U.S. 1, 6-7 (1976); see also Hobbs, 45 F.3d at 821 ("Clinically,
pneumoconiosis may be described in simple terms as a chronic lung
disease marked by an overgrowth of connective tissue caused by the
inhalation of certain dusts."). Legal pneumoconiosis is a much
broader category of diseases, which includes but is not limited to
medical, or "coal workers'," pneumoconiosis. See Fuller, 180 F.3d at
625; Hobbs, 45 F.3d at 821; see also 20 C.F.R. § 718.201 (including
within legal definition of "pneumoconiosis""any chronic pulmonary
disease resulting in respiratory or pulmonary impairment significantly
related to, or substantially aggravated by, dust exposure in coal mine
employment"). Critically, "a medical diagnosis finding no coal work-
ers' pneumoconiosis is not equivalent to a legal finding of no pneu-
moconiosis." Hobbs, 45 F.3d at 821. In that sense, then, the Director's
point is well-taken: Evidence that does not establish medical pneumo-
coniosis, e.g., an x-ray read as negative for coal workers' pneumoco-
niosis, should not necessarily be treated as evidence weighing against
a finding of legal pneumoconiosis.8
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8 We encourage ALJs to be mindful of this distinction and of the differ-
ent diagnostic purposes attending various pieces of evidence. Cf. Tussey
v. Island Creek Coal Co., 982 F.2d 1036, 1040-41 (6th Cir. 1993) (clari-
fying, in the context of weighing different types of evidence together
under 20 C.F.R. § 718.204(c), that one type of evidence was not a "direct
offset or contrary" to a different type of evidence because the two types
of evidence related to different sorts of pulmonary impairment (internal
quotation marks omitted)).
9
We nevertheless reject the Director's position because it is not a
reasonable interpretation of either the Act or the regulation. See Chev-
ron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 842-45 (1984) (holding that agency interpretation of statute is
entitled to deference if it is "based on a permissible construction of
the statute"); Lisa Lee Mines, 86 F.3d at 1363 (deferring to Director's
reasonable interpretation of regulation). First,§ 923(b) does not dis-
tinguish between medical and legal pneumoconiosis; it simply man-
dates that all evidence relevant to claims for black lung benefits "shall
be considered." 30 U.S.C.A. § 923(b). And, although we recognize
that there is a meaningful distinction between evidence of medical
pneumoconiosis and evidence of legal pneumoconiosis, it cannot be
said that evidence showing that a miner does not have medical pneu-
moconiosis is irrelevant to the question of whether the miner has
established pneumoconiosis for purposes of a black lung claim.9 Fur-
ther, nothing in the text of the regulation supports his position.10
Accordingly, because the ALJ failed to weigh all of the evidence
together as is required by 30 U.S.C.A. § 923(b), we vacate the order
of the BRB affirming the ALJ's decision and remand the case to the
BRB with instructions to remand the case to the ALJ. On remand the
ALJ must weigh the x-ray evidence with the physicians' opinions to
determine whether Compton has established the existence of pneumo-
coniosis by a preponderance of all of the evidence.
2.
Island Creek also argues that the ALJ erred in determining that
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9 For example, if in a particular case there were conflicting evidence
regarding whether the miner had coal workers' pneumoconiosis, and no
other respiratory or pulmonary diagnosis had been made, then the evi-
dence would be relevant not only to the question of whether the miner
had medical pneumoconiosis, but also to the question of whether he had
legal pneumoconiosis.
10 In light of our conclusion that the Director's position is not a reason-
able interpretation of either the statute or the regulation, we need not
address Island Creek's argument that we should not defer to the Direc-
tor's current position because it is inconsistent with his position in Penn
Allegheny Coal Co. v. Williams, 114 F.3d 22 (3d Cir. 1997).
10
Compton established the existence of pneumoconiosis by a prepon-
derance of the evidence because the ALJ erred in crediting the opin-
ions of Drs. Gaziano and Carrillo and in discrediting the opinions of
Drs. Zaldivar, Castle, and Fino. We agree that the ALJ committed
certain errors in evaluating the medical opinions.
In reviewing this material, we note that it is the province of the
ALJ to evaluate the physicians' opinions. "[A]s trier of fact, the ALJ
is not bound to accept the opinion or theory of any medical expert."
Underwood v. Elkay Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997).
The ALJ must examine the reasoning employed in a medical opinion
in light of the objective material supporting that opinion, and also
must take into account any contrary test results or diagnoses. See
Director, OWCP v. Rowe, 710 F.2d 251, 255 (6th Cir. 1983).
Dr. Gaziano
The ALJ concluded that Dr. Gaziano's opinion was well docu-
mented and well reasoned. Island Creek asserts that this conclusion
was erroneous because Dr. Gaziano's opinion was not well docu-
mented. We agree with Island Creek.
Dr. Gaziano concluded that Compton had coal workers' pneumoco-
niosis based solely on an x-ray taken in connection with
Dr. Gaziano's examination of Compton. However, the ALJ deter-
mined that the x-ray evidence did not establish pneumoconiosis.
Because the ALJ rejected the sole basis for Dr. Gaziano's pneumoco-
niosis diagnosis, the ALJ erred in crediting Dr. Gaziano's opinion.11
See Sahara Coal Co. v. Fitts, 39 F.3d 781, 783 (7th Cir. 1994) (stat-
ing that a physician's opinion diagnosing pneumoconiosis based
solely on discredited x-ray evidence "cannot be considered probative
evidence that [the claimant] has pneumoconiosis").
_________________________________________________________________
11 Although Dr. Gaziano also concluded that Compton's pulmonary
function tests showed "a moderate combined obstructive and restrictive
ventilatory impairment," J.A. 79, he did not attribute this impairment to
Compton's coal mine employment. Therefore, this is not a diagnosis of
legal pneumoconiosis. See 30 U.S.C.A. § 902(b); 20 C.F.R. § 718.201.
11
Dr. Carrillo
The ALJ concluded that Dr. Carrillo's opinion was well docu-
mented and well reasoned. Island Creek asserts that this conclusion
was also erroneous. We conclude that substantial evidence in the
record supports the ALJ's conclusion that Dr. Carrillo's opinion was
reasoned and sufficiently documented.
Dr. Carrillo based his diagnosis of pulmonary disease on Comp-
ton's history of exposure to coal dust and cigarette smoke, Compton's
medical history and Dr. Carrillo's physical examination of Compton,
and the results of a pulmonary function test.12 Dr. Carrillo's opinion
satisfies the requirement of the regulation that it be based on "objec-
tive medical evidence" insofar as Dr. Carrillo relied on Compton's
medical history, a physical examination, and a pulmonary function
test. 20 C.F.R. § 718.202(a)(4).
Also, although Dr. Carrillo did not offer any explanation for his
conclusion that Compton's disease was partially caused by exposure
to coal dust, the totality of his report indicates that he reached a "rea-
soned medical opinion." Id.; see Poole v. Freeman United Coal Min-
ing Co., 897 F.2d 888, 893-94 (7th Cir. 1990) (upholding ALJ's
reliance on a medical report that stated an opinion without providing
an explanation in part because the report was based on an objective
medical test, a physical examination of the miner, and information
about the miner's symptoms and work and medical histories, although
characterizing the unadorned report as "minimally sufficient"). An
ALJ may choose to discredit an opinion that lacks a thorough expla-
nation, but is not legally compelled to do so. See Milburn Colliery,
138 F.3d at 532 n.9. There are several factors that an ALJ must con-
sider in determining the weight to accord a particular opinion, and the
detail of the analysis in the opinion is just one of them. See Under-
wood, 105 F.3d at 951 (listing factors).
_________________________________________________________________
12 Although a radiologist read an x-ray taken in connection with
Dr. Carrillo's examination of Compton as positive, Dr. Carrillo did not
rely on the results of this x-ray in making his diagnosis.
12
Dr. Fino
The ALJ discredited Dr. Fino's opinion because he did not examine
Compton and because Dr. Fino's statement that Compton showed
improvement after using bronchodilators conflicted with the findings
of another physician who had examined Compton. The other physi-
cian, Dr. Zaldivar, found no improvement after the use of bronc-
hodilators.
An ALJ may not discredit a physician's opinion solely because the
physician did not examine the claimant. See Sterling Smokeless Coal
Co. v. Akers, 131 F.3d 438, 441 (4th Cir. 1997). Although the ALJ
noted that the two physicians reached different conclusions about the
effect of bronchodilators, the only reason given by the ALJ for credit-
ing Dr. Zaldivar's conclusion over Dr. Fino's is that Dr. Zaldivar
examined Compton. Accordingly, the ALJ erred in discrediting
Dr. Fino's opinion solely because he had not examined Compton.
Dr. Zaldivar
The ALJ discredited Dr. Zaldivar's opinion on the basis that he
failed to consider pneumoconiosis as an additional cause of Comp-
ton's pulmonary problems. Island Creek contends that Dr. Zaldivar's
opinion should not have been discredited.
We conclude that there is sufficient evidence in the record to sup-
port the ALJ's determination that Dr. Zaldivar failed to consider
pneumoconiosis as an additional cause of Compton's pulmonary
problems. In response to a deposition question regarding the bases for
his conclusion that Compton did not have a pulmonary impairment
related to his coal mine employment, Dr. Zaldivar stated, "[t]he fact
that his pulmonary problem is not related to any dust condition ...
[a]nd the emphysema certainly will not be aggravated by anything
other than the smoking." J.A. 337-38. The first part of Dr. Zaldivar's
response simply begs the question, and a fact finder would not be
compelled to accept the second part of the response because it is con-
clusory and does not explain why coal dust exposure could not have
caused or aggravated the emphysema. See Underwood, 105 F.3d at
951.
13
Dr. Castle
The ALJ discounted the opinion of Dr. Castle because Dr. Castle
stated that Compton had little exposure to coal dust. Island Creek
challenges this determination.
We conclude that there is substantial evidence in the record to sup-
port the ALJ's conclusion that Dr. Castle misunderstood the degree to
which Compton had been exposed to coal dust. Dr. Castle stated that
Compton "had limited coal dust exposure in his mining work since
most of it was as a dozer operator above ground." J.A. 250. In con-
trast, the ALJ characterized Compton's work as "extremely dusty."13
J.A. 377.
3.
In sum, we conclude that the BRB erred in affirming the ALJ's
decision because the ALJ erred in failing to weigh all of the relevant
evidence together and in crediting Dr. Gaziano's opinion and discred-
iting Dr. Fino's opinion. On remand, the ALJ should reconsider its
decision in a manner consistent with this opinion.
B.
Island Creek also argues that the ALJ erred in determining that
Compton established by a preponderance of the evidence that his total
disability is due to pneumoconiosis because the ALJ improperly dis-
credited the opinions of Drs. Fino, Zaldivar, and Castle on the issue
of causation. The ALJ discredited the causation opinions of Drs. Fino,
Zaldivar, and Castle because none of these doctors had diagnosed
_________________________________________________________________
13 We need not address Island Creek's other arguments that the ALJ
erred in discrediting Drs. Zaldivar's and Castle's opinions in light of our
conclusion that there was a sufficient factual basis to support one reason
for discrediting each opinion.
Island Creek also contends that the ALJ failed to adequately consider
the relative qualifications of the physicians whose reports were being
considered under § 718.202(a)(4). We encourage the ALJ on remand to
consider more explicitly the impact of the doctors' respective credentials.
See Milburn Colliery, 138 F.3d at 536.
14
pneumoconiosis. We agree with Island Creek that the ALJ did not
offer a sufficient reason for discrediting Dr. Fino's opinion, but con-
clude that the ALJ committed no error by discrediting the causation
opinions of Drs. Zaldivar and Castle.
In Dehue Coal Co. v. Ballard, 65 F.3d 1189 (4th Cir. 1995), we
held that an ALJ may credit a physician's opinion on the issue of cau-
sation, even though the physician had not diagnosed pneumoconiosis,
provided that the opinion is not "premise[d] ... on an erroneous find-
ing contrary to the ALJ's conclusion." Dehue Coal, 65 F.3d at 1195(internal quotation marks omitted); see Hobbs , 45 F.3d at 821-22(approving ALJ's decision to credit physicians' opinions on issue of
causation when their diagnoses of no coal workers' pneumoconiosis
were not inconsistent with ALJ's finding of legal pneumoconiosis).
Here, Dr. Zaldivar's and Dr. Castle's causation opinions were
irreconcilable with the ALJ's findings. The reasons offered by the
ALJ for discrediting Dr. Zaldivar's and Dr. Castle's opinions with
regard to the existence of pneumoconiosis, which we affirmed above,
go to the issue of causation. The ALJ discredited Dr. Zaldivar's opin-
ion because he failed to consider pneumoconiosis as an additional
cause of Compton's pulmonary problems. The ALJ discredited
Dr. Castle's opinion because he misunderstood the extent to which
Compton had been exposed to coal dust. In both instances, the short-
coming identified by the ALJ with regard to the physician's opinion
regarding the existence of pneumoconiosis also undermined the phy-
sician's opinion regarding causation. Therefore, these causation opin-
ions are in irreconcilable conflict with the ALJ's finding of the
existence of pneumoconiosis, and it was not error for the ALJ to
accord them little probative value.
In contrast, the reason the ALJ discredited Dr. Fino's opinion
regarding the existence of pneumoconiosis had nothing to do with the
causation issue; the ALJ discredited Dr. Fino's opinion because Dr.
Fino had not examined Compton. We rejected the sufficiency of this
reason above. Further, although Dr. Fino did not diagnose pneumoco-
niosis, he opined that even if Compton had coal workers' pneumoco-
niosis, he would still conclude that it was cigarette smoking, and not
coal dust exposure, that caused Compton's disability. Therefore,
Dr. Fino's opinion on causation was not "premise[d] ... on an errone-
15
ous finding contrary to the ALJ's conclusion." Dehue Coal, 65 F.3d
at 1195 (internal quotation marks omitted). Accordingly, we conclude
that the reason offered by the ALJ for discrediting Dr. Fino's causa-
tion opinion was insufficient. On remand, the ALJ should reconsider
his decision to discredit Dr. Fino's opinion on the causation issue.
III.
Because the BRB erred in approving the ALJ's practice of weigh-
ing evidence as it related to each subsection of 20 C.F.R. § 718.202(a)
rather than weighing all of the relevant evidence together, and in light
of the other errors found in the record, we vacate the Board's decision
and remand with instructions for the Board to remand Compton's case
to an ALJ for further proceedings not inconsistent with this decision.
VACATED AND REMANDED
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