Beverly Chambers v. Old Hickory Coal Co , 68 F. App'x 423 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BEVERLY J. CHAMBERS, Widow of 
Raymond Chambers,
Petitioner,
v.
OLD HICKORY COAL COMPANY; WEST
VIRGINIA COAL WORKERS’  No. 02-1671
PNEUMOCONIOSIS FUND,
INCORPORATED; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.

On Petition for Review of an Order of the
Benefits Review Board.
(01-0764-BLA)
Argued: April 4, 2003
Decided: June 20, 2003
Before KING, Circuit Judge, HAMILTON, Senior Circuit Judge,
and Robert E. PAYNE, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Leonard Joseph Stayton, Inez, Kentucky, for Petitioner.
Robert Weinberger, Employment Programs Litigation Unit, Charles-
ton, West Virginia, for Respondents.
2 CHAMBERS v. OLD HICKORY COAL CO.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Beverly Chambers petitions for review of a decision by the United
States Department of Labor’s Benefits Review Board (the Board)
denying an award by an Administrative Law Judge (ALJ) for black
lung survivor’s benefits under the Black Lung Benefits Act (the Act),
30 U.S.C. §§ 901-945. For the reasons stated below, we vacate the
Board’s decision and remand with instructions to the Board to remand
the case to an ALJ for further proceedings consistent with this opin-
ion.
I
Raymond Chambers (Chambers) worked for at least twenty years
as a coal miner. For approximately forty years of his life, Chambers
smoked one pack of unfiltered cigarettes per day. He died in August
1996 and, according to his death certificate, the cause of his death was
cardiopulmonary arrest/failure due to massive myocardial infarction
and cardiac arrhythmia.
On October 5, 1998, Chambers’ widow, Beverly Chambers (Mrs.
Chambers), filed a claim for black lung survivor’s benefits under the
Act. The United States Department of Labor (DOL) denied the claim
on March 10, 1999 because the evidence did not establish that Cham-
bers’ death was due to pneumoconiosis. Mrs. Chambers appealed the
denial and the case was referred to the Office of Administrative Law
Judges (OALJ) on July 21, 1999. The case was remanded to the Dis-
trict Director on September 30, 1999 to determine the proper respon-
sible operator and insurance carrier. The District Director named Old
Hickory Coal Company (Old Hickory) and the West Virginia Coal-
Workers’ Pneumoconiosis Fund as the responsible operator and insur-
ance carrier, respectively. The case was then referred to the OALJ for
a hearing, which was conducted by an ALJ on October 18, 2000. On
CHAMBERS v. OLD HICKORY COAL CO. 3
June 13, 2001, the ALJ issued his decision denying Mrs. Chambers’
claim for black lung survivor’s benefits under the Act.
On the issue of whether Chambers had pneumoconiosis, the ALJ
first considered the autopsy and biopsy evidence. In the autopsy
report prepared by Dr. Raul Gagucas (Dr. Gagucas), Dr. Gagucas
diagnosed Chambers with bronchiolitis obliterans-organizing pneu-
monia, moderate coal-workers’ pneumoconiosis, diffuse moderate
emphysema, and pleural adhesions. Dr. Gagucas opined that coal
workers’ pneumoconiosis could have caused a mild pulmonary defi-
cit.
Dr. Bobby Caldwell (Dr. Caldwell), a board-certified pathologist,
performed a biopsy on Chambers’ lung on March 11, 1996 and diag-
nosed Chambers as having squamous metaplasia of the respiratory
epithelium and left lower lobe brushing.
Dr. Echols Hansbarger (Dr. Hansbarger), a board-certified patholo-
gist, and Dr. Francis Green (Dr. Green), another board-certified
pathologist, reviewed both the autopsy and biopsy evidence contained
in the record. In his July 31, 2000 report, Dr. Hansbarger diagnosed
Chambers as having: (1) bilateral organizing pneumonia-bronchiolitis
obliterans; (2) bullous centrilobular emphysema of the lung; (3) mild
focal anthracotic pigmentation of the lung; and (4) anthracitic pig-
mentation of the bronchial lymph nodes. Dr. Hansbarger opined that
Chambers did not have coal-workers’ pneumoconiosis or any other
occupationally-acquired coal dust-related disease. He also opined
that: (1) Chambers died from atherosclerotic coronary heart disease;
and (2) pneumoconiosis could not have contributed to Chambers’
death or hastened his death. In his August 24, 2000 report, Dr. Green
opined that Chambers had mild, simple coal workers’ pneumoconio-
sis. Dr. Green also opined that: (1) Chambers’ death was more likely
to have resulted from a respiratory condition; and (2) Chambers’
pneumoconiosis significantly contributed to his death.
The conflicting reports of several physicians were also placed
before the ALJ. Dr. Robert Crisalli (Dr. Crisalli), a board-certified
pulmonologist, examined Chambers on March 11, 1996 and issued a
report in which he diagnosed Chambers as having diffuse hyperemia
and edema. Dr. Scott Miller (Dr. Miller) wrote two letters in which
4 CHAMBERS v. OLD HICKORY COAL CO.
he assessed Chambers’ condition. In the first letter, dated March 15,
1996, Dr. Miller diagnosed Chambers as having atherosclerotic coro-
nary artery disease with angina, valvular heart disease, lung lesions,
hypertension, and chronic obstructive pulmonary disease (COPD). In
the second letter, dated June 26, 1996, Dr. Miller diagnosed Cham-
bers as suffering from severe arteriosclerotic coronary artery disease
and severe COPD.
Dr. Robert Atkins (Dr. Atkins), Chambers’ treating physician, sub-
mitted several treatment records at the request of the DOL. With
respect to the period of July 2, 1992 through July 23, 1996, Dr. Atkins
assessed Chambers as having pneumonia, congestive heart failure,
bronchitis, ischemic heart disease, COPD, and pneumoconiosis. With
respect to the period of June 30, 1988 through July 23, 1996, Dr.
Atkins concluded that Chambers was suffering from COPD and mild
pneumoconiosis. In a letter dated May 5, 1999, Dr. Atkins stated that
Chambers died due to multiple causes including cardiac failure and
that pneumoconiosis was a contributing cause of death.
Dr. Mohamed Ranavaya (Dr. Ranavaya), who is a B-reader and is
board certified in internal medicine, completed a medical consultant
case review on March 9, 1999 in which he concluded that Chambers
suffered from pneumoconiosis. Dr. Ranavaya also concluded that: (1)
Chambers was not totally disabled by pneumoconiosis prior to his
death; (2) Chambers’ death was not due to pneumoconiosis; (3) pneu-
moconiosis was not a substantial contributing cause leading to Cham-
bers’ death; (4) Chambers’ death was not caused by complications of
pneumoconiosis; and (5) Chambers did not have complicated pneu-
moconiosis.
In his decision, the ALJ found that the autopsy and biopsy evidence
was in equipoise and therefore Mrs. Chambers failed to establish the
existence of pneumoconiosis by a preponderance of the autopsy and
biopsy evidence. The ALJ further found that Mrs. Chambers estab-
lished the existence of pneumoconiosis by a preponderance of the
medical opinion evidence. Opining that the autopsy and biopsy evi-
dence considered together was more "reliable" than the medical opin-
ion evidence, the ALJ denied Mrs. Chambers’ claim for black lung
survivor’s benefits under the Act.1 Mrs. Chambers appealed the ALJ’s
1
The ALJ also found that Chambers did not have pneumoconiosis aris-
ing out of coal mine employment and that Chambers’ death was not due
CHAMBERS v. OLD HICKORY COAL CO. 5
decision to the Board, which, in a 2-1 decision, affirmed the ALJ’s
decision. Mrs. Chambers filed a timely petition for review.
II
To receive black lung benefits as a surviving spouse of a miner, the
surviving spouse must prove: (1) the miner had pneumoconiosis; (2)
the miner’s pneumoconiosis arose out of coal mine employment; and
(3) the miner’s death was due to pneumoconiosis. 20 C.F.R.
§ 718.205(a).2 The surviving spouse has the burden of establishing
these elements by a preponderance of the evidence. United States
Steel Mining Co., Inc. v. Director, OWCP, 187 F.3d 384, 388 (4th
Cir. 1999).
We review an order of the Board "undertak[ing] an independent
review of the record" to determine whether the ALJ’s findings of fact
are supported by substantial evidence. Dehue Coal Co. v. Ballard, 65
F.3d 1189, 1193 (4th Cir. 1995). "Substantial evidence is more than
a mere scintilla"; it is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Consolidated Edi-
son Co. v. NLRB, 305 U.S. 197, 229 (1938). We review the legal con-
clusions of the Board and the ALJ de novo. Milburn Colliery Co. v.
Hicks, 138 F.3d 524, 528 (4th Cir. 1998).
The Act’s regulations provide four ways in which a miner or sur-
viving spouse can establish that the miner had pneumoconiosis. 20
C.F.R. § 718.202(a)(1)-(4). In relevant part, the regulations provide
that:
(a) A finding of the existence of pneumoconiosis may be
made as follows:
(1) A chest X-ray conducted and classified in
to pneumoconiosis. These findings were premised on the finding that
Chambers did not have pneumoconiosis.
2
The parties agree that the Part 718 regulations apply to Mrs. Cham-
bers’ claim for black lung survivor’s benefits.
6 CHAMBERS v. OLD HICKORY COAL CO.
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 pneumoconiosis. . . .
(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 suffering from
pneumoconiosis.
(4) A determination of the existence of pneumoco-
niosis may also be made if a physician, exercising
sound medical judgment, notwithstanding a nega-
tive X-ray, finds that the miner suffers or suffered
from pneumoconiosis as defined in § 718.201. . .
.
20 C.F.R. § 718.202(a)(1)-(4).
In Island Creek Coal Company v. Compton, 211 F.3d 203 (4th Cir.
2000), we were presented with the issue of whether ALJs could con-
sider evidence adduced under each of the four subsections of 20
C.F.R. § 718.202(a) in the disjunctive. We rejected the Board’s argu-
ment that, if the evidence relevant to one subsection supported a find-
ing of pneumoconiosis, other evidence bearing on a different
subsection could be ignored. Instead, we decided that the proper
method is to weigh the different types of evidence together to deter-
mine whether a preponderance of all of the evidence establishes the
existence of pneumoconiosis. Compton, 211 F.3d at 208-09; id. at 208(concluding that the "plain meaning" of 30 U.S.C. § 923(b) requires
the weighing of all relevant evidence together "rather than merely
within discrete subsections of § 718.202(a)").
In this case, the ALJ arguably weighed the different types of evi-
dence as required by Compton. The ALJ said that he weighed the
autopsy and biopsy evidence against the medical opinion evidence.3
3
The presumptions described in 20 C.F.R. § 718.202(a)(3) do not
apply to Chambers, thus, they are not relevant to this appeal. In addition,
CHAMBERS v. OLD HICKORY COAL CO. 7
After weighing this evidence, the ALJ concluded that the autopsy and
biopsy evidence considered together was more persuasive on the
question of whether Chambers had pneumoconiosis. We find the
manner in which the ALJ weighed the evidence under Compton
flawed in two respects.
First, in Compton, we recognized that evidence showing that a
miner does not have medical pneumoconiosis is not dispositive of
whether a miner has established a black lung claim; rather, evidence
showing that a miner does not have medical pneumoconiosis must be
weighed together with the evidence establishing legal pneumoconio-
sis in determining whether the miner has established a black lung
claim. Compton, 211 F.3d at 210 ("Evidence that does not establish
medical pneumoconiosis . . . should not necessarily be treated as evi-
dence weighing against a finding of legal pneumoconiosis."); id. at
210-11 n.8 & 9. Such an approach makes eminent sense because there
is a difference between the medical definition and the broader legal
definition of pneumoconiosis. Compare id. at 210 ("Medical pneumo-
coniosis is a particular disease generally characterized as certain
opacities appearing on a chest x-ray. . . . 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 cer-
tain dusts.") (citation and internal quotation marks omitted) with id.("[L]egal definition of pneumoconiosis [includes] any chronic pulmo-
nary disease resulting in respiratory or pulmonary impairment signifi-
cantly related to, or substantially aggravated by, dust exposure in coal
mine employment.") (citation and internal quotation marks omitted).
In this case, the ALJ did not specify whether the medical opinion
evidence established medical or legal pneumoconiosis. The need for
ALJs to make this distinction is critical to a proper weighing of the
there was chest x-ray evidence in the record, which the ALJ declined to
consider. The Board found the ALJ’s decision to decline to consider the
chest x-ray to be error, but nevertheless harmless error because the chest
x-ray evidence did not establish the existence of pneumoconiosis under
20 C.F.R. § 718.202(a)(1). Because the ALJ did not use the chest x-ray
evidence when he conducted the requisite weighing under Compton, we
cannot consider the chest x-ray evidence.
8 CHAMBERS v. OLD HICKORY COAL CO.
evidence under Compton. Id. at 210 & n.8. Indeed, at least two of the
physicians (Drs. Atkins and Miller) found COPD, an ailment covered
under the legal definition of pneumoconiosis but not under its medical
definition. Considering that only one other physician (Dr. Ranavaya)
supported the ALJ’s 20 C.F.R. § 718.202(a)(4) finding, it is likely that
the ALJ found the existence of legal pneumoconiosis. In our view, a
finding of legal pneumoconiosis under 20 C.F.R. § 718.202(a)(4) is
supported by substantial evidence in the record.4 In the final analysis,
however, the basis for the ALJ’s 20 C.F.R. § 718.202(a)(4) finding is
simply beside the point. Because the ALJ never explained why the
autopsy and biopsy evidence, which related to the existence of medi-
cal pneumoconiosis, was more persuasive than the medical opinion
evidence establishing legal pneumoconiosis, it cannot be said that the
ALJ weighed all of the evidence together as Compton requires.
Second, as noted above, the ALJ found that Mrs. Chambers estab-
lished the existence of pneumoconiosis by a preponderance of the
medical opinion evidence under 20 C.F.R. § 718.202(a)(4). In view
of this finding, which obviously tipped the scales in favor of a finding
that Chambers had pneumoconiosis, as a matter of simple logic, it
was error for the ALJ to conclude that the autopsy and biopsy evi-
dence, which was in equipoise, tipped the scales in favor of a finding
that Chambers did not have pneumoconiosis.
III
Because the manner in which the ALJ weighed the evidence under
Compton was flawed, we vacate the Board’s decision and remand the
case with instructions to the Board to remand the case to an ALJ for
further proceedings consistent with this opinion.
VACATED AND REMANDED
4
For this reason, we reject Old Hickory’s argument that substantial evi-
dence does not support the ALJ’s 20 C.F.R. § 718.202(a)(4) finding.