Clinchfield Coal Co. v. Lambert , 206 F. App'x 252 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1154
CLINCHFIELD COAL COMPANY,
Petitioner,
versus
CLYDE C. LAMBERT; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(05-0251-BLA; 03-0464-BLA; 01-0514-BLA)
Argued: September 21, 2006 Decided: November 17, 2006
Before WILLIAMS and GREGORY, Circuit Judges, and Thomas E.
JOHNSTON, United States District Judge for the Southern District of
West Virginia, sitting by designation.
Petition for review granted and claim remanded by unpublished per
curiam opinion.
ARGUED: Timothy Ward Gresham, PENN, STUART & ESKRIDGE, Abingdon,
Virginia, for Petitioner. Sarah Marie Hurley, UNITED STATES
DEPARTMENT OF JUSTICE, Office of the Solicitor, Washington, D.C.;
Gerald Francis Sharp, Lebanon, Virginia, for Respondents. ON
BRIEF: Anne L. Musgrove, PENN, STUART & ESKRIDGE, Abingdon,
Virginia, for Petitioner. Howard M. Radzely, Solicitor of Labor,
Allen H. Feldman, Associate Solicitor, Christian P. Barber, Counsel
for Appellate Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Office of the Solicitor, Washington, D.C., for Federal Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Clinchfield Coal Company (“Clinchfield”) petitions for review
of an administrative order awarding Clyde C. Lambert (“Lambert”)
benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-944(2000). Because the administrative law judge (“ALJ”) appeared to
shift the burden of proof from the claimant (Lambert) to the
employer (Clinchfield), we remand the case for further proceedings
consistent with this opinion.
I.
Lambert, a former coal miner, filed for benefits in 1979.
After lengthy proceedings that included consideration by four
different ALJs and multiple appeals to the Benefits Review Board
(“Board”), ALJ Linda S. Chapman awarded Lambert benefits on
November 17, 2004.
The ALJ held that x-ray readings by eight physicians who found
large Category A opacities in Lambert’s lungs were sufficient to
invoke the irrebuttable presumption under 30 U.S.C. § 921(c)(3)
that Lambert’s disability was “due to” pneumoconiosis. See 30
U.S.C. § 921(c)(3).* The ALJ concluded that these eight
*
30 U.S.C. § 921(c)(3) provides in full:
If a miner is suffering or suffered from a
chronic dust disease of the lung which (A)
when diagnosed by chest roentgenogram, yields
one or more large opacities (greater than one
centimeter in diameter) and would be
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physicians’ x-ray readings outweighed the medical reports and x-ray
readings by physicians who attributed the abnormalities in
Lambert’s lung to diseases such as tuberculosis, cancer, or
cigarette smoking-induced emphysema, not pneumoconiosis. The ALJ
made this finding “especially in light of the fact that there is
not any evidence in the file to establish that [Lambert] has had
tuberculosis or another disease process that could be responsible
for [the opacities discovered in his lungs].” (J.A. 419.)
The Board affirmed the ALJ’s decision and order on November
30, 2005. We review the Board’s decision to ensure that the Board
adhered to its statutory standard of review. Dehue Coal Co. v.
Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995). The statute requires
the Board to determine whether the ALJ’s findings are “supported by
substantial evidence in the record considered as a whole.” 33
classified in category A, B, or C in the
International Classification of Radiographs of
the Pneumoconiosis by the International Labor
Organization, (B) when diagnosed by biopsy or
autopsy, yields massive lesions in the lung,
or (C) when diagnosis is made by other means,
would be a condition which could reasonably be
expected to yield results described in clause
(A) or (B) if diagnosis had been made in the
manner prescribed in clause (A) or (B), then
there shall be an irrebuttable presumption
that he is totally disabled due to
pneumoconiosis or that his death was due to
pneumoconiosis or that at the time of his
death he was totally disabled by
pneumoconiosis, as the case may be.
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U.S.C. § 921(b)(3). We review the Board’s legal conclusions de
novo. Dehue Coal, 65 F.3d at 1193.
II.
In Eastern Associated Coal Corp. v. Director, Office of
Workers’ Compensation Programs (Scarbro), 220 F.3d 250 (4th Cir.
2000), we held that “a single piece of relevant evidence” such as
an x-ray reading “can support an ALJ's finding that the
irrebuttable presumption [should be] invoked if that piece of
evidence outweighs conflicting evidence in the record.” 220 F.3d
at 256 (internal quotation marks omitted). We stated that “the x-
ray evidence can lose force only if other evidence affirmatively
shows that the opacities are not there or are not what they seem to
be, perhaps because of an intervening pathology, some technical
problem with the equipment used, or incompetence of the reader.”
Id. (emphasis added).
The ALJ relied heavily on Scarbro in deciding Lambert’s claim.
Citing Scarbro, she determined that the x-ray readings of those
physicians who, in her opinion, merely speculated as to the
possible causes for the abnormalities in Lambert’s lung “do not
affirmatively outweigh the findings of Category A opacities by the
eight physicians who noted the presence of such opacities.” (J.A.
420.) Further citing Scarbro, the ALJ found that at least two
medical reports in the record do not provide “affirmative evidence
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that there are no large opacities on [Lambert’s] x-rays, or that
the large opacities are due to a disease process other than
pneumoconiosis.” (J.A. 425.)
The ALJ also, however, summarized her understanding of the law
as follows:
[I]f Claimant meets the congressionally defined
condition, that is, if he establishes that he has a
condition that manifests itself on x-rays with opacities
greater than one centimeter, he is entitled to the
irrebuttable presumption of total disability due to
pneumoconiosis, unless there is affirmative evidence
under prong A, B, or C that persuasively establishes
either that these opacities do not exist, or that they
are the result of a disease process unrelated to his
exposure to coal mine dust.
(J.A. 416; emphasis added.)
This portion of the ALJ’s decision and order misstates Scarbro
and appears to shift the burden of proof to Clinchfield. Scarbro
does not impose on the employer the burden to “persuasively
establish” that the opacities physicians may have found do not
exist or are due to a disease other than pneumoconiosis. Nor does
Scarbro require that evidence in general “persuasively establish”
(as opposed to “affirmatively show”) that the opacities discovered
in a claimant’s lungs are not what they seem. Scarbro holds only
that once the claimant presents legally sufficient evidence (here,
x-ray evidence of large opacities classified as category A, B, or
C in the ILO system, see 30 U.S.C. § 921(c)(3)), he is likely to
win unless there is contrary evidence (typically, but not
necessarily, offered by the employer) in the record. The burden of
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proof remains at all times with the claimant. See Gulf & W. Indus.
v. Ling, 176 F.3d 226, 233 (4th Cir. 1999) (“The burden of
persuading the factfinder of the validity of the claim remains at
all times with the miner.”); Lester v. Dir., Office of Workers’
Comp. Programs, 993 F.2d 1143, 1146 (4th Cir. 1993) (“The claimant
retains the burden of proving the existence of the disease.”).
The Board’s decision on appeal does not comment on the ALJ’s
incorrect summary of the law. In fact, the Board’s decision
suggests that the ALJ did not shift the burden of proof to
Clinchfield. The Board affirmed the ALJ’s decision and order in
part because the ALJ “[had] not requir[ed] employer’s doctors to
prove the etiology of the x-ray and CT abnormalities seen,” as the
Board previously believed the ALJ to have done in an earlier
decision and order. (J.A. 434-45.)
Nonetheless, because in misstating Scarbro the ALJ appeared to
shift the burden of proof to Clinchfield, we remand the case. We
found this the “prudent result” when an ALJ impermissibly shifted
the burden of proof to the employer in Gulf & Western. 176 F.3d at
235. It remains the appropriate result here, even though the ALJ
may very well find in favor of Lambert again on remand. Cf. id.(“Although the BRB may have reached the same result had it
correctly applied the . . . presumption, we think it prudent to
remand the claim to the BRB for reconsideration.”).
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III.
In sum, we grant Clinchfield’s petition for review but deny
its request to remand the case to a different ALJ. We believe that
ALJ Chapman, who is familiar with the record and has thrice made
detailed factual findings in this case, can adequately apply
Scarbro and expeditiously resolve Lambert’s claim. We therefore
remand to the Board and ALJ Chapman for further proceedings
consistent with this opinion.
PETITION FOR REVIEW
GRANTED AND CLAIM
REMANDED
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