Dominion Coal Corp v. Vance ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DOMINION COAL CORPORATION,
Petitioner,
v.
EZEKIAL H. VANCE; DIRECTOR, OFFICE
No. 96-1160
OF WORKERS' COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(No. 95-897-BLA)
Argued: January 27, 1997
Decided: March 20, 1997
Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion. Judge Niemeyer wrote
a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Ronald Eugene Gilbertson, KILCULLEN, WILSON &
KILCULLEN, Washington, D.C., for Petitioner. Frederick Klein
Muth, HENSLEY, MUTH, GARTON & HAYES, Bluefield, West
Virginia, for Respondent Vance; Richard Anthony Seid, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent Director. ON BRIEF: J. Davitt McAteer, Acting Solici-
tor of Labor, Donald S. Shire, Associate Solicitor, Christian P.
Bar-
ber, Counsel for Appellate Litigation, Helen H. Cox, 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Unpublished opinions are not binding precedent in this circuit.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:
Dominion Coal appeals from the Black Lung Benefits Review
Board's order upholding an Administrative Law Judge's award of
benefits to Ezekial Vance. The ALJ's finding of pneumoconiosis
under 20 C.F.R. § 718.202(a)(4) (1996) and the ALJ's decision that
Vance's disability was "due to" coal worker's pneumoconiosis were
legally correct and supported by substantial evidence. Accordingly,
we affirm.
I.
Ezekial H. Vance worked for thirty-three years as a coal miner, and
smoked a half-a-pack of cigarettes a day for over thirty years.
Vance
quit smoking in 1990. Vance worked for Dominion Coal Corporation
("Dominion") for eighteen years, and retired in October 1989. On
May 6, 1993 he filed an application for federal black lung benefits
under 30 U.S.C. §§ 901-945 (1994). The Department of Labor deter-
mined that Vance was eligible for benefits, and that Dominion was
the responsible operator. Dominion filed a controversion to this
find-
ing, and Vance's case was forwarded to an ALJ.
On July 8, 1994 Vance and Dominion appeared before the ALJ,
who considered the various and conflicting medical testimony and
held that Vance was entitled to benefits. Dominion appealed this
rul-
2
ing to the Benefits Review Board. The Board affirmed the decision
of the ALJ and Dominion appealed to this court.
II.
The standard of our review of the Board's decision is set forth in
the Longshoremen's and Harbor Worker's Compensation Act, 33
U.S.C. § 921 (1994), and incorporated into the Black Lung Act by 30
U.S.C. § 932(a) (1994). See Grizzle v. Pickands Mather & Co. , 994
F.2d 1093, 1096 (4th Cir. 1993). The Board reviews the ALJ's find-
ings of fact to determine if they are "supported by substantial
evi-
dence in the record considered as a whole." Doss v. Director,
Office
of Workers Compensation Programs , 53 F.3d 654, 658 (4th Cir.
1995). We review the Board for "errors of law," and to determine
whether the Board correctly followed its "statutory standard of
review
of factual determinations," i.e. whether the Board was correct that
the
ALJ's findings of fact were supported by "substantial evidence."
Doss, 53 F.3d at 658-59.
Substantial evidence is "more than a mere scintilla" and evidence
that "a reasonable mind might accept as adequate to support a
conclu-
sion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Under the
substantial evidence requirement "[t]he ALJ has sole power to make
credibility determinations and resolve inconsistencies in the evi-
dence." Grizzle, 994 F.2d at 1096.
With these standards in mind we turn to the Board's affirmance of
the ALJ in this case. Dominion appeals two aspects of the Board's
decision. The first is the Board's affirmance of the ALJ's finding
of
"legal" pneumoconiosis under 20 C.F.R. § 718.202(a)(4) (1996). The
second is the Board's affirmance of the ALJ's decision that Vance's
total disability was "due to" his pneumoconiosis under 20 C.F.R.
§ 718.204 (1996). We discuss these issues in order.
A.
Under 20 C.F.R. § 718.202(a) (1996) there are four ways to estab-
lish the existence of pneumoconiosis. The ALJ found pneumoconiosis
under both § 718.202(a)(1) and § 718.202(a)(4). Section
3
718.202(a)(1) allows a finding of pneumoconiosis on the basis of a
positive x-ray. Section 718.202(a)(4) allows a finding of
pneumoconi-
osis when "a physician, exercising sound medical judgment, notwith-
standing a negative X-ray, finds that the miner suffers or suffered
from pneumoconiosis as defined in § 718.201." 20 C.F.R.
§ 718.202(a)(4) (1996). Section 718.201 defines pneumoconiosis as
"a chronic dust disease of the lung and its sequelae, including
respira-
tory and pulmonary impairments, arising out of coal mine employ-
ment." 20 C.F.R. § 718.201 (1996). The Board affirmed the ALJ
solely on the basis of his § 718.202(a)(4) finding, and so only
that
basis is before us. See Grigg v. Director, Office of Workers
Compen-
sation Programs, 28 F.3d 416, 418 (4th Cir. 1994); Securities and
Exch. Comm'n v. Chenery Corp. , 318 U.S. 80 (1943).1
1.
Dominion first argues that the Board committed legal error because
it affirmed the ALJ's finding of pneumoconiosis under
§ 718.202(a)(4) without considering whether the ALJ's x-ray
findings
under § 718.202(a)(1) were correct. Dominion asserts that because
§ 718.202(a)(4) applies "notwithstanding" a negative x-ray, it
presup-
poses and requires a finding of negative x-ray evidence under
§ 718.202(a)(1). Vance and the Director maintain that §
718.202(a)(4)
is a separate ground for a finding of legal pneumoconiosis, and as
long as both the Board and the ALJ stated sufficient facts to
support
a finding under § 718.202(a)(4) separate x-ray findings under
§ 718.202(a)(1) are not necessary.
We agree with Vance and the Director's reading of the regulations.
The four methods of finding pneumoconiosis are not to be read and
applied in seriatim. Instead, each can stand on its own. The
"notwith-
standing" language clarifies that under § 718.202(a)(4) a doctor
may
find pneumoconiosis regardless of a negative x-ray; it requires no
spe-
cific x-ray findings. In fact its plain language suggests the exact
oppo-
_________________________________________________________________
1 The dissent suggests that we have focused upon the Board's
holding
under § 718.202(a)(4) "perhaps" because we "recogniz[e] the flaws
in the
ALJ's evaluation of the x-ray evidence." Under Chenery, we may only
review those aspects of the ALJ's decision relied upon by the
Board. 318
U.S. at 87-88.
4
site conclusion, that § 718.202(a)(4) applies"notwithstanding" any
x-
ray findings.2
2.
Dominion also argues that there is insufficient evidence to support
the ALJ's § 718.202(a)(4) finding. Section 718.202(a)(4) allows a
finding of legal pneumoconiosis "notwithstanding a negative X-ray"
if a Doctor's finding is "supported by a reasoned medical opinion"
and is "based on objective medical evidence such as blood-gas
studies, electrocardiograms, pulmonary function studies, physical
per-
formance tests, physical examination, and medical and work histo-
ries." 20 C.F.R. § 718.202(a)(4) (1996).
In making his finding under § 718.202(a)(4) the ALJ first summa-
rized the findings of Drs. Evans, Forehand, Sargent, Wiot, Renn,
Fino
and Rasmussen. The ALJ chose to rely particularly on the reports of
the three doctors who actually examined Vance: Drs. Forehand, Ras-
mussen and Sargent. We have repeatedly stated that"the opinions of
treating and examining physicians deserve especial consideration"
and that "great reliance on the conclusions of a claimant's
examining
physician" may be appropriate. Grizzle v. Pickands Mather & Co. ,
994 F.2d 1093, 1097 (4th Cir. 1993) (quoting Hubbard v. Califano,
582 F.2d 319, 323 (4th Cir. 1978), and King v. Califano, 615 F.2d
1018, 1020 (4th Cir. 1980)). Furthermore, "[w]e defer to the ALJ's
evaluation of the proper weight to accord conflicting medical opin-
ions." Stiltner v. Island Creek Coal Co., 86 F.3d 337, 342 (4th
Cir.
1996); see also Grizzle, 994 F.2d at 1096.
Therefore we focus our review of the evidence, as the ALJ did,
upon the three examining physicians. Dr. J. Randolph Forehand
_________________________________________________________________
2 Dominion also argues that because both the Administrative
Procedure
Act and the Black Lung Benefits Act require an ALJ and the Board to
consider all relevant evidence, an ALJ must consider x-rays under
§ 718.202(a)(4). But, all that must be considered is relevant
evidence,
and if a doctor does not rely upon an x-ray to reach her §
718.202(a)(4)
conclusion, there is no need to separately consider x-rays. What is
neces-
sary is to consider the basis on which the doctor herself relied
for suffi-
ciency.
5
examined Vance on June 10, 1993 at the request of the Department
of Labor. Dr. Forehand was authorized by the Department of Labor
to perform a general medical history, a full physical evaluation,
a pul-
monary function test, an arterial blood-gas study, an
electrocardio-
gram, and a chest x-ray. Based upon these various tests Dr.
Forehand
concluded that Vance suffered from coal worker's pneumoconiosis,
that Vance was totally disabled, and that working in the coal mine
was a "contributing factor" in Vance's disability. In describing
the
basis of this finding at deposition Dr. Forehand stated:
I thought [Vance's] findings, with a history of thirty-two
years of underground coal mining, a lot of that at the face
of a dusty area, abnormalities of his pulmonary function
study, abnormalities of the arterial blood gas, plus a fairly
impressive exercise intolerance based on his study, I thought
that his findings were consistent with coal worker's pneu-
moconiosis.
Dr. Forehand's diagnosis was also based upon an x-ray that both he
and a Dr. Shahan read as showing pneumoconiosis. However, con-
trary to the suggestion of the dissent, Dr. Forehand specifically
stated
at deposition that he did not depend on the x-ray in making his
diag-
nosis and that even if the x-ray readings had been negative he
would
have reached the same conclusion. 3
_________________________________________________________________
3 Consider the following exchange during Dr. Forehand's deposition:
Q: If you had seen what you felt was a negative film on this
individual, how might that have changed your opinion, if at
all?
A: In this particular individual I was taking into
consideration
his years under ground and the location in the mine at the
face.
This is an extremely important component to the overall
evalua-
tion. And the variation in the reading probably would not have
altered my conclusions.
Q: Therefore, if you had assumed a negative finding on x-ray,
your opinion would still be the same, i.e., that there was
some
contribution to this man's impairment caused by the mine dust
exposure?
A: Yes.
6
Dr. Forehand reached the conclusion that Vance suffered from coal
worker's pneumoconiosis based upon a blood-gas study, an electro-
cardiogram, a pulmonary function study, a physical performance
test,
a physical examination, and medical and work histories. These are
the
precise tests specifically listed as the "objective medical
evidence"
required to establish a "reasoned medical" diagnosis of
pneumoconio-
sis under § 718.202(a)(4). Furthermore, Dr. Forehand specifically
stated that his diagnosis would be the same regardless of the x-ray
evidence. As such, Dr. Forehand's diagnosis is certainly sufficient
under § 718.202(a)(4).
Dr. Donald Rasmussen examined Vance on April 6, 1994. Dr. Ras-
mussen performed a medical history and a physical evaluation, as
well as a chest x-ray, an electrocardiogram, a spirometry exam,
dif-
fusing capacity studies, and blood-gas studies at rest and during
exer-
cise. Dr. Rasmussen found that Vance suffered from pneumoconiosis
as a result of his thirty years of coal mine employment, and that
Vance was totally disabled. In his deposition Dr. Rasmussen listed
a
number of factors that contributed to his diagnosis:
[Vance's] history indicated significant respiratory symp-
toms. He had abnormal physical findings consistent with
chronic lung disease. He had an abnormal x-ray consistent
with simple pneumoconiosis. He showed moderate partially
reversible obstructive ventilatory impairment, a minimal
decrease in his diffusing capacity, and poor exercise toler-
ance, limited principally by ventilatory impairment, also
showing some minimal impairment in gas exchange.
[In the physical examination] there was moderate to marked
reduction in the quality of breath sounds or the transmission
of breath sounds and there was also prolongation of the
expiratory phase with forced respirations.
Dr. Rasmussen also found "moderate airway obstruction" in the
ventilator studies, "abnormal" gas exchange at rest, an "inability
to
perform significant physical work," and "impairment" after
exercise.
Dr. Rasmussen did note that Vance's impairment was partially
reversible, but not so completely reversible as to discount a
finding
of pneumoconiosis. Dr. Rasmussen recognized at deposition that
7
pneumoconiosis is an "irreversible condition," and reiterated a
diag-
nosis of pneumoconiosis. Furthermore, contrary to the dissent's
sug-
gestion that Dr. Rasmussen's opinion should be discounted because
of his reliance upon a positive x-ray, Dr. Rasmussen specifically
stated at deposition that although he read Vance's x-rays as
positive,
a negative x-ray would not have changed his diagnosis.
Dr. Rasmussen, like Dr. Forehand, performed all of the tests listed
in § 718.202(a)(4) and reached a diagnosis of pneumoconiosis that
would have been the same regardless of the x-ray evidence. As such,
Dr. Rasmussen also well supported a finding of pneumoconiosis
under § 718.202(a)(4).
Dr. Dale Sargent examined Vance on October 29, 1993. Dr. Sar-
gent performed a medical and work history, as well as an
electrocar-
diogram, a pulmonary function test at rest,4 and a chest x-ray. Dr.
Sargent reached the conclusion that Vance suffered from a "moderate
ventilatory impairment." Dr. Sargent's October, 1993 report stated
that although "[i]t is my overall impression that Mr. Vance may be
suffering from coal worker's pneumoconiosis" and that that he
"could
not entirely exclude coal worker's pneumoconiosis," the x-ray and
physical exam findings were more consistent with"cigarette smoking
and not coal dust exposure." At his July, 1994 deposition Dr.
Sargent
reiterated that he thought the x-rays excluded any finding of
pneumo-
coniosis "with the qualifying statement that[he] couldn't
completely
exclude low profusion simple pneumoconiosis on the basis of the
chest X-ray finding." Taken together, these three statements well
sup-
port the ALJ's statement that Dr. Sargent could not"rule out" pneu-
moconiosis.
Dominion argues that the evidence listed above is insufficient to
establish pneumoconiosis under § 718.202(a)(4) and that in
affirming
the ALJ under § 718.202(a)(4) the Board has attempted an "end run"
around the ALJ's x-ray findings under § 718.202(a)(1). Dominion is
correct that an ALJ may not find -- and therefore the Board may not
affirm a finding of -- pneumoconiosis under § 718.202(a)(4) relying
upon a doctor whose opinion was wholly or largely based upon an
_________________________________________________________________
4 Dr. Sargent did not perform a pulmonary function test during
exer-
cise.
8
erroneous x-ray reading. Obviously, a diagnosis based largely upon
a positive x-ray finding would not be a finding of pneumoconiosis
"notwithstanding" the x-ray evidence. But, an ALJ may find legal
pneumoconiosis under § 718.202(a)(4) based upon a doctor's "rea-
soned medical" diagnosis of pneumoconiosis supported by other "ob-
jective medical evidence," such as the tests listed in 20 C.F.R.
§ 718.202(a)(4) (1996).
In this case both Dr. Rasmussen and Dr. Forehand supported their
"reasoned medical opinion" with "objective medical evidence" aside
from the x-ray evidence. The ALJ explicitly relied upon these two
doctors, and fairly stated that although Dr. Sargent attributed
Vance's
lung impairment to smoking he could not rule pneumoconiosis out
either in his medical report or at deposition.5 As such, there was
sub-
stantial evidence to support the ALJ's decision, and the Board cor-
rectly affirmed the ALJ's § 718.202(a)(4) finding.
B.
Dominion, joined in part by the Director, next challenges the
Board's affirmance of the ALJ's finding that Vance was "totally
dis-
_________________________________________________________________
5 Although Dominion raises no other objection to the ALJ's factual
findings under § 718.202(a)(4) the Director sua sponte argues that
the
ALJ mischaracterized the medical testimony of Dr. Sargent. As
stated
above Dr. Sargent made two separate findings: 1) that "Mr. Vance
may
be suffering from coal worker's pneumoconiosis," but this finding
was
limited to "low profusion simple pneumoconiosis," which Dr. Sargent
thought was not responsible for Vance's impairment; 2) Vance was
impaired, but as a result of cigarette smoking. From this the
Director
argues that the ALJ misunderstood Sargent as positively stating
that
Vance suffered from pneumoconiosis.
The ALJ did not state that Dr. Sargent found pneumoconiosis. The
ALJ stated that "[a]ll the doctors that actually examined the
claimant
[Drs. Forehand, Rasmussen and Sargent] found that he suffered from
coal workers' pneumoconiosis, or at least, could not rule it out."
(Emphasis added). As the above description of Dr. Sargent's
testimony
makes clear the ALJ was correct that Sargent "could not rule out
coal
workers' pneumoconiosis." Therefore, it is the Director who miscon-
strues the ALJ's opinion.
9
abled due to pneumoconiosis." 20 C.F.R.§ 718.204(a) (1996)
(emphasis added). All of the doctors agreed that Vance is totally
dis-
abled, so the only remaining question is causation. The §
718.204(a)
causation standard requires a claimant to show "that his
pneumoconi-
osis was at least a contributing cause of his totally disabling
respira-
tory impairment." Dehue Coal Co. v. Ballard , 65 F.3d 1189, 1195-96
(4th Cir. 1995) (quoting Robinson v. Pickands Mather & Co. , 914
F.2d 35, 38 (4th Cir. 1990)). Accordingly we ask whether "the
claim-
ant's coal mining [was] a necessary condition of his disability. If
the
claimant would have been disabled to the same degree and by the
same time in his life if he had never been a miner, then benefits
should not be awarded." Dehue, 65 F.3d at 1196 (emphasis in origi-
nal).
1.
Dominion argues first that there was insufficient evidence to sup-
port the ALJ's finding of causation. Dominion asserts that both Dr.
Forehand and Dr. Rasmussen were equivocal in their discussions of
causation. Both Dr. Rasmussen and Dr. Forehand did state that smok-
ing played a part in Vance's disability and that it was difficult
to dis-
cern exactly the effect of smoking vis a vis coal dust. However,
both
doctors were unequivocal in their findings that coal dust
"contributed"
to Vance's disability. Dr. Rasmussen specifically stated that "coal
mine dust exposure is at least a major contributing factor to
[Vance's]
totally disabling respiratory insufficiency." Dr. Rasmussen also
stated
that Vance's smoking history alone was most likely insufficient to
produce his level of impairment. Dr. Forehand also stated that coal
worker's pneumoconiosis was "contributing to[Vance's] impair-
ment." Thus, both Dr. Rasmussen and Dr. Forehand offered sufficient
evidence of causation for the Board to uphold the ALJ's decision.
2.
Dominion, joined by the Director, next argues that the Board erred
in upholding the ALJ's decision because the ALJ did not properly
state how it resolved the conflicting evidence on causation. In
particu-
lar Dominion argues that the ALJ did not sufficiently rebut the
opin-
ions of Drs. Fino, Sargent and Renn, who stated that Vance's
disability was not "due to" pneumoconiosis. Dominion is correct
that
10
"[a] bald conclusion, unsupported by reasoning or evidence, is
gener-
ally of no use to a reviewing court." Maxey v. Califano, 598 F.2d
874,
876 (4th Cir. 1979). The Board held that the ALJ"implicitly
credited
Dr. Forehand's testimony."
However, a fair reading of the ALJ's opinion indicates that the ALJ
did more than implicitly credit Dr. Forehand, and that the ALJ
stated
more than a bald conclusion. The ALJ summarized the opinions on
causation of Drs. Fino, Sargent, Renn, Forehand and Rasmussen. As
noted earlier, the ALJ chose to rely more heavily on the reports of
the
doctors who had personally seen Vance: Drs. Rasmussen, Forehand
and Sargent. For this reason, it was reasonable for the ALJ not to
spe-
cifically rebut the findings of Drs. Renn and Fino.
Therefore, the only remaining question is whether the ALJ properly
considered and rejected Dr. Sargent's finding of no causation, and
whether the ALJ explicitly credited the findings of Drs. Rasmussen
and Forehand. The ALJ rebutted the findings of Dr. Sargent in its
conclusion to the causation section. First, the ALJ reiterated that
Dr.
Sargent "could not rule out coal workers' pneumoconiosis." Second,
the ALJ concluded the causation section with a lengthy quote of Dr.
Forehand that directly contradicts Dr. Sargent's description of
pneu-
moconiosis: "the preponderance of the medical literature [ ]
suggests
it is a spectrum disease and no one pattern. Pneumoconiosis is not
limited to one ventilatory pattern. And I think most of the
literature
suggest[s] that it is a mixed or obstructive and not a pure
restrictive
pattern." This quote is not included as window dressing. It is the
only
lengthy quote in the causation section, and presents clear evidence
that the ALJ agreed with Drs. Forehand and Rasmussen's assessment
of causation -- that Vance's symptoms are consistent with legal
pneumoconiosis, and have disabled him -- and disagreed with Dr.
Sargent's conclusion to the contrary.
In short, the ALJ's causation finding was more than a "bare conclu-
sion;" the ALJ specifically considered and rejected Dr. Sargent's
views, credited Drs. Rasmussen and Forehand, and provided both the
Board and this court a sufficient basis for review. Therefore, we
affirm the Board's decision to uphold the ALJ's findings on causa-
tion.
11
III.
The Board did not err in affirming the ALJ's findings, and so the
Board's order is hereby
AFFIRMED.
NIEMEYER, Circuit Judge, dissenting:
Because I believe that the ALJ's analysis of the medical evidence
in this case fell far short of meeting established standards for
evaluat-
ing such evidence, I would remand this case to the Board with
instructions to remand it to the ALJ for further analysis.
The questions of whether Vance had pneumoconiosis and whether
pneumoconiosis was the cause of his disability are extremely close.
Even Vance's own doctors described symptoms that are more consis-
tent with cigarette smoking than with pneumoconiosis. Accordingly,
whether the ALJ properly analyzed the medical evidence is critical
to
the proper resolution of Vance's claim.
It would appear first that the ALJ simply failed to follow the
requirements of applicable regulations in evaluating the x-ray evi-
dence. He placed most reliance on readings by physicians whose
qualifications are not in the record, acting directly contrary to
20
C.F.R. §§ 718.202(a)(1) & 718.102. It was for good reason that the
Board did not rely on the ALJ's finding with respect to the x-ray
evi-
dence in affirming the ALJ. It is also for this reason that we must
be
particularly vigilant to disqualify any medical report to the
extent that
it relies on a positive x-ray finding.
The majority, reviewing the basis of the Benefits Review Board
decision but perhaps also recognizing the flaws in the ALJ's
evalua-
tion of the x-ray evidence, addresses only whether Vance
established
the existence of pneumoconiosis by medical evidence under 20 C.F.R.
§ 718.202(a)(4). But the ALJ's analysis under (a)(4) is just as
flawed.
The ALJ characterized the physicians on whom he relied as having
found that the claimant "suffered from coal workers'
pneumoconiosis,
or at least, could not rule it out." He relied on the reports of
Drs. Fore-
hand, Sargent, and Rasmussen.
12
At the outset, in evaluating the evidence of Dr. Sargent, the ALJ
clearly erred. The ALJ concluded that Dr. Sargent could not "rule
out"
pneumoconiosis, but that is directly contrary to his opinion. While
Dr.
Sargent initially stated that he could not rule out pneumoconiosis
on
the basis of an initial reading of an x-ray, his later test
results, as well
as a review of other physicians' readings and test results,
ultimately
convinced him that Vance did not suffer from pneumoconiosis and
that Vance's overall impairment was due to cigarette smoking.
With respect to Dr. Forehand, the record does not provide enough
information to determine to what extent he relied on x-rays. If he
relied on a positive x-ray, then that is not an independent opinion
that
would support a finding of pneumoconiosis under§ 718.204(a)(4).
Moreover, Dr. Forehand could only conclude that his findings "were
consistent with coal worker's pneumoconiosis." (Emphasis added).
Finally, Dr. Rasmussen's findings were the most ambiguous. He
relied expressly on positive x-ray testimony, which would
disqualify
his opinion under § 718.204(a)(4), at least to the extent of his
reliance
on a positive x-ray. Moreover, Dr. Rasmussen concluded that there
was a "moderate partially reversible obstructive ventilatory
impair-
ment" (emphasis added), an indication that the disease was caused
by
cigarette smoking and not by pneumoconiosis. Pneumoconiosis is
irreversible. See Mullins Coal Co. v. Director, Officer of Workers'
Compensation Programs, 484 U.S. 135, 151 (1988).
Against this most thin and perhaps even disqualified evidence, the
ALJ failed to give reasoned opinions as to why he was discrediting
the opinions of the doctors offered by the coal mine operator that
Vance did not have pneumoconiosis and that the vast number of x-
rays did not support a finding of pneumoconiosis.
On the issue of whether pneumoconiosis caused Vance's disability,
the ALJ likewise provided inadequate analysis, concluding simply,
on
the basis of opinions from Drs. Forehand and Rasmussen, that the
claimant had established that his total disability was due to
pneumo-
coniosis. The ALJ offered no rationale for crediting these doctors
over Drs. Fino, Sargent, and Renn, all of whom had stated that
pattern
of partial reversible obstruction which Vance demonstrated was not
consistent with pneumoconiosis.
13
Finally, I should not omit noting that the Director has urged us to
remand this case for similar reasons.
For the foregoing reasons, I respectfully dissent.
14