Jarvis v. Carbon Fuel Company , 77 F. App'x 164 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BUDE JARVIS, 
Petitioner,
v.
CARBON FUEL COMPANY; DIRECTOR,  No. 02-1061
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(01-171-BLA)
Argued: September 25, 2002
Decided: October 7, 2003
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Timothy Francis Cogan, CASSIDY, MYERS, COGAN,
VOEGELIN & TENNANT, L.C., Wheeling, West Virginia, for Peti-
tioner. Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C., Mor-
gantown, West Virginia, for Respondents. ON BRIEF: Kathy L.
Snyder, JACKSON & KELLY, P.L.L.C., Morgantown, West Vir-
ginia, for Respondent Carbon Fuel.
2 JARVIS v. CARBON FUEL COMPANY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Bude Jarvis, a coal miner, appeals the Decision and Order of the
Benefits Review Board (Board) affirming the decision of an Adminis-
trative Law Judge (ALJ) to deny Jarvis benefits on a claim filed pur-
suant to the provisions of the Black Lung Benefits Act (the Act), as
amended, 30 U.S.C.A. §§ 901-45 (West 1986 & Supp. 2003). See
Jarvis v. Carbon Fuel Co., BRB No. 01-0171 BLA (Nov. 19, 2001)
(J.A. at 571-84). Because the factual findings of the ALJ were sup-
ported by substantial evidence, and the legal conclusions of both the
ALJ and the Board were consistent with applicable law, we affirm.
I.
Jarvis worked as a coal miner for 32 years. In 1978, Jarvis was
refused employment because he had pneumoconiosis. He filed his
first claim for black lung benefits1 on March 13, 1979, which was
denied because he was not totally disabled. He filed a request for
modification of this decision, which also was denied. Jarvis appealed
the ALJ’s decision to the Board, which affirmed, and then appealed
the Board’s decision to this court, which likewise affirmed. See Jarvis
v. Carbon Fuel Co., 23 F.3d 401 (4th Cir. 1994) (unpublished).
In July 1996, Jarvis filed a new claim. Because of the denial of his
earlier claim, the 1996 claim was subject to the "duplicate claims"
1
Under the Act, claimants are awarded benefits on a showing that they
have either been rendered totally disabled due to pneumoconiosis or are
the survivors of persons whose death was caused by pneumoconiosis. 20
C.F.R. § 718.1(a) (2003). Under federal regulation, pneumoconiosis
(commonly known as black lung) is defined as "a chronic dust disease
of the lung and its sequelae, including respiratory and pulmonary impair-
ments, arising out of coal mine employment." 20 C.F.R. § 718.201(a)
(2003).
JARVIS v. CARBON FUEL COMPANY 3
regulation, which provides, in relevant part, as follows: "If the earlier
. . . claim has been finally denied, the later claim shall also be denied,
on the grounds of the prior denial, unless the deputy commissioner
determines that there has been a material change in conditions[.]" 20
C.F.R. § 725.309(d) (1996). Therefore, because Jarvis’s earlier claim
was denied for failure to show total disability, the later claim was sub-
ject to denial unless Jarvis could show that he was totally disabled.
Section 718.204 provides that a miner can show total disability by
invoking the irrebuttable presumption under 20 C.F.R. § 718.304(2003),2 or producing any of the following evidence: (1) pulmonary
2
Section 718.304 states:
There is an irrebuttable presumption that a miner is totally dis-
abled due to pneumoconiosis, that a miner’s death was due to
pneumoconiosis or that a miner was totally disabled due to pneu-
moconiosis at the time of death, if such miner is suffering or suf-
fered from a chronic dust disease of the lung which:
(a) When diagnosed by chest X-ray (see § 718.202 concerning
the standards for X-rays and the effect of interpretations of X-
rays by physicians) yields one or more large opacities (greater
than 1 centimeter in diameter) and would be classified in Cate-
gory A, B, or C in:
(1) The ILO-U/C International Classification of Radio-
graphs of the Pneumoconioses, 1971, or subsequent revi-
sions thereto; or
(2) The International Classification of the Radiographs of
the Pneumoconioses of the International Labour Office,
Extended Classification (1968)(which may be referred to as
the "ILO Classification (1968)"); or
(3) The Classification of the Pneumoconioses of the Union
Internationale Contra Cancer/Cincinnati (1968)(which may
be referred to as the "UICC/Cincinnati (1968) Classifica-
tion"); or
(b) When diagnosed by biopsy or autopsy, yields massive
lesions in the lung; or
(c) When diagnosed by means other than those specified in
paragraphs (a) and (b) of this section, would be a condition
which could reasonably be expected to yield the results
described in paragraph (a) or (b) of this section had diagnosis
been made as therein described: Provided, however, That any
diagnosis made under this paragraph shall accord with accept-
able medical procedures.
4 JARVIS v. CARBON FUEL COMPANY
function tests showing qualifying values; (2) arterial blood-gas tests
showing qualifying values; (3) the miner has pneumoconiosis and has
been shown by medical evidence to be suffering from cor pulmonale
with right sided congestive heart failure; or (4) the reasoned medical
judgment of a physician based on acceptable techniques concluding
that the miner cannot engage in coal mine work. See 20 C.F.R.
§ 718.204(b), (c) (2003).
The Department of Labor originally denied Jarvis’s duplicate claim
by notice dated January 15, 1997. At Jarvis’s request, the case was
then forwarded to ALJ Clement J. Kennington, who held a hearing on
April 22, 1998. ALJ Kennington denied Jarvis’s claim in a Decision
and Order issued on August 5, 1998. ALJ Kennington reviewed the
following medical evidence in rendering his decision: the readings of
twenty-six chest x-rays taken from 1973 to 1997 and the qualifica-
tions of those examining physicians; ten pulmonary function studies
taken between 1976 and 1997, which did not produce any qualifying
values (i.e., values equal to or less than those values provided in
Appendix B of the Act); seven blood gas studies taken between 1976
and 1997, of which two from 1980 produced qualifying values (val-
ues equal to or less than those provided in Appendix C of the Act);
and the reports of twelve physical examinations.3
Examining all this evidence together, ALJ Kennington found that
there was conflict among the physicians as to whether there was addi-
tional evidence of complicated pneumoconiosis. In reviewing the
3
Of the new evidence presented at this hearing, Jarvis offered: (1) two
exhibits, which included the reading of Jarvis’s 1997 x-ray by Dr.
Edward Aycoth along with his curriculum vitae, and a 1998 medical
report from treating physician Dr. Ward; and (2) medical reports, which
included readings of Jarvis’s chest x-rays by Drs. Paul S. Wheeler, Wil-
liam W. Scott, Jerome F. Wiot, Ralph T. Shipley, and Harold B. Spitz,
along with curriculum vitae for each, pulmonary function studies per-
formed by Dr. Robert Crisalli along with his curriculum vitae, and a
report and deposition of Dr. George L. Zaldivar. The ALJ admitted as his
own exhibits the medical summaries of each party. After the hearing,
Carbon Fuel introduced two additional exhibits containing medical
reports and x-ray readings by Drs. Wiot, Shipley, Wheeler, and Scott
from the same 1997 chest x-ray reviewed by Dr. Aycoth (mentioned
above).
JARVIS v. CARBON FUEL COMPANY 5
qualifications of the various physicians, as is required by the law of
this circuit, see Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,
440 (4th Cir. 1997), he found all of the physicians to be equally credi-
ble and stated that he found "no basis for according greater weight to
the interpretations of either," and thus found the evidence to be
"equally balanced." (J.A. at 359.) Accordingly, ALJ Kennington con-
cluded that he was required to deny benefits because Jarvis had failed
to prove by a preponderance of the evidence that he had complicated
pneumoconiosis.
Following this decision, Jarvis filed an appeal with the Board.
While that appeal was pending, he filed a request for modification
with the district director. Consequently, the Board dismissed the
appeal on August 25, 1999, and remanded the case to the district
director for modification proceedings.
Pursuant to this order, a new hearing was held on July 26, 2000
before ALJ Daniel L. Leland. In addition to incorporating some of the
evidence reviewed in the previous ALJ decision of August 5, 1998,4
Jarvis presented new evidence consisting of the interpretations by var-
ious physicians of three new chest x-rays, a letter from Jarvis’s treat-
ing physician, three new medical reports, and additional depositions
of physicians. On September 28, 2000, ALJ Leland issued a Decision
and Order denying the claim. In his decision, ALJ Leland first noted
that Jarvis had not met any of the criteria in section 718.204(c) to
establish a finding of total disability. Specifically, pulmonary function
studies and blood gas tests produced non-qualifying values, there was
4
As he explained in his decision, ALJ Leland did not incorporate all
of the evidence reviewed in the previous hearing:
Much of the evidence submitted by employer in this proceeding
consists of interpretations of x-rays taken prior to the final denial
of claimant’s first claim on May 7, 1993. Because the instant
claim is a duplicate claim in which claimant is initially required
to show a material change in conditions since the denial of his
first claim, these x-ray interpretations are not relevant to that
issue and will therefore not be summarized in this opinion. See
20 C.F.R. § 725.309(d), Lisa Lee Mines v. Director, OWCP, 86
F.3d 1358 (4th Cir. 1996) (en banc).
(J.A. at 561 n.2.)
6 JARVIS v. CARBON FUEL COMPANY
no evidence of cor pulmonale, and each of the examining physicians
had determined that Jarvis had the respiratory capacity to perform his
usual coal mine work. Next, ALJ Leland found that the conditions
required to establish the irrebuttable presumption under section
718.304 were not met, because, although three physicians did inter-
pret three different x-rays to show signs of complicated pneumoconi-
osis, numerous other physicians interpreted those same x-rays as
showing only simple pneumoconiosis. In arriving at his conclusion,
ALJ Leland remarked that the testimony of Dr. Deardorff, a physician
who had testified before ALJ Kennington that a 1996 x-ray may show
complicated pneumoconiosis, was "highly equivocal . . . and [Dr.
Deardorff] basically gave [Jarvis] the benefit of the doubt." (J.A. at
564 n.3.) Thus, ALJ Leland accorded Dr. Deardorff’s testimony little
weight in making his determination of whether Jarvis had compli-
cated pneumoconiosis.
Reviewing all of this evidence, ALJ Leland concluded that the pre-
ponderance of the x-ray evidence did not support a finding of compli-
cated pneumoconiosis. ALJ Leland thus concluded that Jarvis had
failed to demonstrate a material change in his condition, and declined
Jarvis’s request to modify ALJ Kennington’s decision denying the
claim.
Jarvis appealed the September 2000 decision to the Board. On
November 19, 2001, the Board affirmed the decision of ALJ Leland
denying benefits, finding it to be supported by substantial evidence.5
II.
We review claims for benefits under the Act to determine whether
substantial evidence supports the factual findings of the ALJ. Bill
Branch Coal Corp. v. Sparks, 213 F.3d 186, 190 (4th Cir. 2000).
"Substantial evidence consists of sufficient relevant evidence to con-
5
As a preliminary matter, the Board noted that, before making a
§ 725.309 finding that there was no material change in condition, ALJ
Leland should have addressed whether the evidence was sufficient to
warrant modification pursuant to the standard set forth in 20 C.F.R.
§ 725.310. Although ALJ Leland failed to make this initial finding, the
Board found this constituted harmless error. We agree.
JARVIS v. CARBON FUEL COMPANY 7
vince 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)). Applying this standard, "we must affirm the Board if it prop-
erly determined that the ALJ’s findings are supported by substantial
evidence." Doss v. Director, Office of Workers’ Comp. Programs, 53
F.3d 654, 659 (4th Cir. 1995). We review the ALJ’s and the Board’s
conclusions of law de novo. See Scott v. Mason Coal Co., 60 F.3d
1138, 1140 (4th Cir. 1995).
On appeal to this court, Jarvis argues that: (1) the Department of
Labor did not properly provide Jarvis and his attorney with the entire
record, thereby violating his due process rights, (2) the evidence that
ALJ Leland and the Board credited in making their determinations
was not reliable because proper weight was not accorded to the fact
that the physicians rendered conflicting reports, (3) ALJ Leland
merely "counted heads" in rendering his decision, (4) ALJ Leland
erred in disregarding Dr. Deardorff’s opinion as "highly equivocal" or
equivocal, (5) Dr. Wiot’s rationale regarding Jarvis’s diagnosis is not
worthy of weight, (6) ALJ Kennington erred in not following the pre-
sumption that legal pneumoconiosis is a progressive disease, (7) ALJ
Kennington and ALJ Leland did not discharge their respective duties
to prevent Carbon Fuel Company from submitting cumulative evi-
dence, considering that Jarvis was unrepresented by counsel, (8) ALJ
Kennington and ALJ Leland erred in relying upon evidence that the
pulmonary function and blood gas tests were non-qualifying, because
an inference of non-disability does not arise from these results, and
(9) ALJ Leland erred in not considering the issue of hostility to the
Act. We address each of these arguments in turn.
III.
The issues that Jarvis raises in this appeal deal principally with the
manner in which the ALJs reviewed the evidence in the case. The
exceptions are his contention that the Board deprived him of due pro-
cess when it considered his case and his claim that ALJ Kennington
and ALJ Leland erroneously admitted cumulative evidence. We will
consider these issues before turning to the bulk of his argument.
8 JARVIS v. CARBON FUEL COMPANY
Jarvis first contends that the Board deprived him of a fair opportu-
nity to be heard by failing to provide him with copies of parts of the
administrative record, despite his requests. The reason Jarvis did not
have copies of parts of the evidentiary record is unclear, but the
record clearly indicates that the Board, upon learning that Jarvis did
not have certain information, made a concerted effort both to ensure
that Jarvis had access to any missing information and to allow Jarvis
extra time to review those parts of the record missing from his files.
The full interaction between the Board and Jarvis on this issue is
recounted in the Board’s decision. Jarvis does not dispute the Board’s
characterization of events, and it need not be repeated here, except to
note that the Board explicitly offered to provide Jarvis a complete
copy of the record, an offer that Jarvis declined to accept. Thus, in
addition to the multiple accommodations described in the Board’s
decision, the Board provided Jarvis with full access to the record and
accordingly granted him a full and fair opportunity to be heard.
In addition, Jarvis claims that ALJ Kennington and ALJ Leland did
not discharge their respective duties to prevent Carbon Fuel from sub-
mitting allegedly cumulative evidence, considering that Jarvis was
unrepresented by counsel. We find this contention without merit and
hold that the ALJ properly discharged his duties. We review the ques-
tion of whether allegedly cumulative evidence should have been
allowed in the record for abuse of discretion. See Underwood v. Elkay
Mining, Inc., 105 F.3d 946, 949 (4th Cir. 1997) (citing Hinkle v. City
of Clarksburg, 81 F.3d 416, 424 (4th Cir. 1996); Hottle v. Beech Air-
craft Corp., 47 F.3d 106, 111 (4th Cir. 1995)). In Underwood, we
stated that, with respect to cumulative evidence, its inclusion should
not constitute prejudicial error "when it increases confidence in the
outcome of the proceedings." Underwood, 105 F.3d at 951. Here,
both ALJ Kennington and ALJ Leland acted within the scope of their
discretion in admitting the evidence considered in this case. The evi-
dence alleged by Jarvis to be cumulative is not unduly repetitious and
each item has independent value that would warrant its admission.
For example, Jarvis claims in his brief that the eight letters submitted
by Dr. Wiot were cumulative. While each of the letters was written
by the same doctor and came to a similar conclusion, each letter
related to an interpretation of a different x-ray. Each interpretation
had independent value for the ALJ to consider in rendering his opin-
ion. The other evidence alleged to be cumulative likewise has inde-
JARVIS v. CARBON FUEL COMPANY 9
pendent significance. Therefore, we find that neither ALJ Kennington
nor ALJ Leland abused his discretion in admitting the evidence in this
case.
Jarvis also raises numerous arguments touching on the merits of his
case. First, Jarvis contends that the ALJ did not analyze the evidence
properly in light of the fact that the witnesses for Carbon Fuel read
the same x-rays differently on different occasions. More specifically,
Jarvis contends that the interpretations of Drs. Scott, Shipley, Wiot,
Spitz, Wheeler, and Abramowicz should not be accorded the weight
given to them by the ALJ because of their inconsistencies. We dis-
agree.
The record does indicate that, throughout this extensive case, these
physicians, at times, have offered different interpretations as to the
degree of simple pneumoconiosis on certain x-rays. But, as the Board
noted, "[the physicians] did not alter their conclusions that [Jarvis’s]
x-rays did not reveal the presence of complicated pneumoconiosis."
(J.A. at 579 n.15.) The fact that these physicians’ interpretations var-
ied slightly is not enough to discount their opinions entirely. Thus, the
ALJ’s reliance on these opinions was not inappropriate.
Jarvis further contends that more weight should have been given to
Drs. Aycoth and Francke, because their interpretations were entirely
consistent in their finding of complicated pneumoconiosis. While Jar-
vis is correct in noting that these physicians’ interpretations remained
consistent over time, he ignores the fact that the ALJ gave due consid-
eration to their interpretations and medical assessments in rendering
his decision. Whatever added probative value can be attributed to the
consistency of these physicians’ opinions, the ALJ did not err in con-
cluding that those opinions were insufficient to overcome the compet-
ing evidence from the other equally qualified physicians who found
evidence of only simple pneumoconiosis.6 We find the ALJ’s decision
6
In addition to Drs. Aycoth and Franke, Jarvis lists the consistent inter-
pretations of other physicians. These consistent interpretations finding
complicated pneumoconiosis were readings taken prior to 1993, and
therefore, were considered in Jarvis’s first claim for benefits, which was
denied. Because we must accept as true the factual predicate behind the
10 JARVIS v. CARBON FUEL COMPANY
was supported by substantial evidence and affirm the Board’s conclu-
sion regarding the ALJ’s analysis of the physicians’ interpretations.
Next, Jarvis contends that the ALJ merely "counted heads" in eval-
uating the physicians’ competing opinions, which is contrary to the
ALJ’s obligation to consider all relevant evidence. See Sterling
Smokeless Coal, 131 F.3d at 440-41; Island Creek Coal Co. v. Comp-
ton, 211 F.3d 203, 210 n.7 (4th Cir. 2000). In Sterling Smokeless
Coal, we established that "an ALJ may not ignore the relative qualifi-
cations of competing physicians in conducting its review." Sterling
Smokeless Coal, 131 F.3d at 440. This is not to say, however, that any
time a greater number of physicians support one party’s position, the
ALJ’s decision necessarily is based on a numeric count if the ALJ
rules in that party’s favor. Rather, the conflicting opinions of two (or
more) physicians should be resolved, to the extent possible, by con-
sidering "all of the relevant evidence bearing upon the existence of
pneumoconiosis." See Sterling Smokeless Coal, 131 F.3d at 441-42.
The ALJ did exactly as required in evaluating the conflicting opin-
ions here. The ALJ examined and cited the qualifications and exper-
tise of each physician, in addition to evaluating the various
interpretations that each one rendered. After a full examination of all
of these factors, the ALJ determined that while each of the physicians
were credible and qualified, the preponderance of the evidence did
not support a finding of complicated pneumoconiosis. Therefore, we
affirm the Board’s finding that the ALJ "clearly considered the radio-
logical qualifications of the respective readers." (J.A. at 579 n.15.)
In addition, Jarvis argues that ALJ Leland erred in disregarding Dr.
Deardorff’s testimony as "highly equivocal."7 This argument, too,
initial denial of benefits, we must accept that Jarvis did not have compli-
cated pneumoconiosis in 1993. Accordingly, the readings taken prior to
1993 are irrelevant in this determination, which concerns solely whether
Jarvis’s condition has changed since 1993. See Lisa Lee Mines v. Direc-
tor, Office of Workers’ Comp. Programs, 86 F.3d 1358, 1362 (4th Cir.
1996) (en banc).
7
In the September 28, 2000 opinion, the ALJ stated regarding Dr.
Deardorff’s testimony,
JARVIS v. CARBON FUEL COMPANY 11
must fail. It is the duty of the ALJ to make factual findings, a duty
which includes "evaluating the credibility of witnesses and weighing
contradicting evidence." Doss v. Dir., Office of Workers’ Comp. Pro-
grams, 53 F.3d 654, 658 (4th Cir. 1995) (citing United States Steel
Corp. v. Bridges, 582 F.2d 7 (5th Cir. 1978)). There is certainly sub-
stantial evidence to support the ALJ’s finding that Dr. Deardorff’s
testimony was equivocal.8 Cf. Piney Mountain Coal Co. v. Mays, 176
F.3d 753, 763 (4th Cir. 1999) (finding that doctor’s opinion was not
"too equivocal as a matter of law" because opinion expressed only the
"uncertainty inherent in medical opinions").
Next, Jarvis contends that the eight medical reasons that Dr. Wiot
offered as to why Jarvis does not have complicated pneumoconiosis
are unreliable. We find that this assertion is also without merit. First,
Dr. Wiot was one of many physicians who offered evidence in this
case, and many of the others came to a similar conclusion regarding
Jarvis’s x-rays. Also, there is no suggestion in the record that the ALJ
did not examine thoroughly Dr. Wiot’s qualifications and the methods
through which he developed his interpretations. Other than mere ref-
erences in Jarvis’s brief to alternate medical opinions regarding the
reading of x-rays, there is no indication that Dr. Wiot’s testimony
Dr. Deardorff testified at the hearing before Judge Kennington
that the August 21, 1996 x-ray may show complicated pneumo-
coniosis, but his testimony was highly equivocal as to whether
the lesions he viewed represented complicated pneumoconiosis
or histoplasmosis and he basically gave claimant the benefit of
the doubt. Because of the equivocal nature of Dr. Deardorff’s
testimony, I accord it little weight as to whether the miner’s
recent chest x-rays show complicated pneumoconiosis.
(J.A. at 564 n.3.)
8
Respecting his underlying conclusions, Dr. Deardorff testified that
"there is a reasonable doubt as to whether this is a granuloma versus a
complicated A-type opacity in the lungs." (J.A. at 222.) Also, in review-
ing specific aspects of the various x-rays, Dr. Deardorff expressed some
doubt as to whether certain irregularities were qualifying opacities. (See
e.g., J.A. at 228 ("That’s a lesion. That’s in question as to whether it’s
a granuloma or a complicated scar of pneumoconiosis.").)
12 JARVIS v. CARBON FUEL COMPANY
should be discounted as unreliable. We find that the ALJ did not err
in giving some weight to Dr. Wiot’s testimony.
Additionally, Jarvis argues that ALJ Kennington9 erred in not fol-
lowing the presumption that legal pneumoconiosis is progressive. We
find that this contention lacks merit. The Supreme Court has held that,
because "pneumoconiosis is a progressive and irreversible disease[,]
. . . where the more recent X-ray evidence is negative and directly
conflicting with earlier positive X-rays it may be weighed with less
regard to timing in light of the recognized principle that negative X-
ray readings are not a trustworthy indicator of the absence of the dis-
ease." Mullins Coal Co. v. Director, Office of Workers’ Comp. Pro-
grams, 484 U.S. 135, 151 (1987) (citation omitted). ALJ Kennington
did not violate this legal principal in this instance. Contrary to Jarvis’s
contention, we believe that there was substantial evidence in the
record to support the ALJ’s finding, and can identify no instance
where any physician claimed that the disease was regressive. Because
there is no evidence in the record that the ALJ gave greater weight
to later interpretations that were contrary to earlier ones, we find there
was no error.
Jarvis also argues that the ALJ erred by inferring non-disability
from evidence that the pulmonary function and blood gas tests were
non-qualifying. Under section 718.204(b), a claimant can establish
total respiratory or pulmonary disability, and thus entitlement to bene-
fits, by presenting evidence of qualifying pulmonary function tests,
qualifying arterial blood gas tests, cor pulmonale with right-sided
congestive heart failure, and, if none of the previous can be shown,
a reasoned physician’s report concluding that the claimant’s respira-
tory or pulmonary condition prevents him from engaging in employ-
ment. Thus, the ALJ, having already determined that Jarvis did not
qualify for the presumption set forth in section 718.304, properly
reviewed the results of the pulmonary function studies and blood-gas
studies to determine whether Jarvis qualified for benefits under a dif-
ferent avenue. Jarvis would have us believe that the ALJ used this
evidence to infer non-disability. This assertion cannot stand. There is
9
In making this argument in his brief, Jarvis claims it was the "1995
ALJ" who was in error. Because this claim was filed in 1996, we will
assume that Jarvis is referring to the first ALJ (Kennington) to consider
his duplicate claim.
JARVIS v. CARBON FUEL COMPANY 13
absolutely no indication that the ALJ inferred non-disability from this
evidence. Rather, a host of evidence indicates that the ALJ’s conclu-
sion was well-founded: All of the newly submitted pulmonary func-
tion and arterial blood gas studies were non-qualifying and revealed
normal lung function, no new medical opinions concluded that Jarvis
suffered from a totally disabling respiratory or pulmonary impair-
ment, and there was no new evidence of cor pulmonale with right-
sided congestive heart failure. There was substantial evidence to sup-
port the ALJ decision that the newly submitted evidence was insuffi-
cient to establish total disability, and we find no evidence in the
record that the ALJ made any improper inferences from the non-
qualifying results of those tests.
Finally, Jarvis asserts that the ALJ did not consider whether the
physicians testifying on behalf of Carbon Fuel should have been dis-
credited based on their hostility to the Act. Like Jarvis’s other claims,
this too is without merit. We have held that "a physician’s opinion
may be discredited when the physician bases his or her conclusion on
a premise fundamentally at odds with the statutory and regulatory
scheme." Lane v. Union Carbide Corp., 105 F.3d 166, 173 (4th Cir.
1997) (internal quotation marks omitted). Here, Jarvis claims that Dr.
Zaldivar is hostile to the Act because in 2000 he found that Jarvis had
no pulmonary impairment, which was contrary to a portion of one of
his previous reports, in which he noted that another physician’s 1997
measurement of Jarvis’s diffusing capacity was not normal; thus, Jar-
vis contends, Dr. Zaldivar is hostile to the Act because he never rec-
onciled these inconsistencies. This court has never held that an
unexplained inconsistency in an opinion implies bias or hostility
towards the Act. Rather, a physician would have had to base his opin-
ion on an assumption that was in direct conflict with the regulations.
Because we find no evidence that Dr. Zaldivar, or any of the other
physicians, based their testimony on erroneous assumptions, we do
not believe that the ALJ erred in not considering the issue of hostility.
After careful review, we conclude that there was substantial evi-
dence to support the factual findings of the ALJ, and that the legal
conclusions of the Board and the ALJ are rational and consistent with
applicable law. Accordingly, we affirm the decision of the Board.
AFFIRMED