Piney Creek Coal Co. v. Marshall , 107 F. App'x 340 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PINEY CREEK COAL COMPANY, 
Petitioner,
v.
ALMA MARSHALL, Widow of George
Marshall, Deceased; DIRECTOR,  No. 04-1349
OFFICE OF WORKERS’ COMPENSATION
PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.

On Petition for Review of an Order
of the Benefits Review Board.
(03-0480-BLA)
Submitted: July 30, 2004
Decided: August 19, 2004
Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges.
Reversed by unpublished per curiam opinion.
COUNSEL
John Payne Scherer, Sr., FILE, PAYNE, SCHERER & BROWN,
Beckley, West Virginia, for Petitioner. Alma Marshall, Respondent
Pro Se; Michelle Seyman Gerdano, Patricia May Nece, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondent DOWCP.
2 PINEY CREEK COAL CO. v. MARSHALL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Piney Creek Coal Company seeks review of the decision and order
of the Benefits Review Board ("BRB") affirming the administrative
law judge’s ("ALJ") award of black lung benefits pursuant to 30
U.S.C. §§ 901-45 (2000). Because our review of the record discloses
that the ALJ’s decision is not supported by substantial evidence, we
reverse the award of benefits.
We review decisions of the BRB to determine whether the BRB
properly found that the ALJ’s decision was supported by substantial
evidence and was in accordance with law. See Doss v. Dir., Office of
Workers’ Comp. Programs, 53 F.3d 654, 658 (4th Cir. 1995). In mak-
ing this determination, we conduct an independent review of the
record in deciding whether the ALJ’s findings are supported by sub-
stantial evidence. See Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193
(4th Cir. 1995). Substantial evidence is more than a scintilla, but only
such evidence that a reasonable mind could accept as adequate to sup-
port a conclusion. See Lane v. Union Carbide Corp., 105 F.3d 166,
170 (4th Cir. 1997). Subject to the substantial evidence requirement,
the ALJ has the sole authority to make credibility determinations and
resolve inconsistencies or conflicts in the evidence. See Grizzle v. Pic-
kands Mather & Co., 994 F.2d 1093, 1096 (4th Cir. 1993). An ALJ,
however, may rely only on a medical opinion that constitutes a rea-
soned medical judgment. See Freeman United Coal Mining Co. v.
Cooper, 965 F.2d 443, 448 (7th Cir. 1992).
To establish that he is entitled to black lung benefits in a case under
20 C.F.R. Part 718, a miner must prove: "(1) he has pneumoconiosis;
(2) the pneumoconiosis arose out of coal mine employment; (3) he
has a totally disabling respiratory or pulmonary condition; and
(4) pneumoconiosis is a contributing cause to his total respiratory dis-
ability." Milburn Colliery Co. v. Hicks, 138 F.3d 524, 529 (4th Cir.
PINEY CREEK COAL CO. v. MARSHALL 3
1998). A claimant may establish the existence of pneumoconiosis by
means of (1) chest x-rays; (2) biopsy or autopsy evidence;
(3) invocation of the presumptions at 20 C.F.R. §§ 718.304 - 718.306;
or (4) medical opinion evidence. See 20 C.F.R. § 718.202(a) (2003).
In findings that are not challenged on appeal, the ALJ determined that
Marshall failed to establish the existence of pneumoconiosis by x-ray
evidence, that there was no biopsy or autopsy evidence, and that the
presumptions of 20 C.F.R. §§ 718.304 - 718.306 were not applicable
to Marshall’s claim. Therefore, the only basis upon which Marshall
may establish that he suffers from pneumoconiosis is medical opinion
evidence pursuant to 20 C.F.R. § 718.202(a)(4) (2003).
A miner is totally disabled due to pneumoconiosis if the disease
is a substantially contributing cause of the miner’s totally
disabling respiratory or pulmonary impairment. Pneumoco-
niosis is a "substantially contributing cause" of the miner’s
disability if it:
(i) Has a material adverse effect on the miner’s respira-
tory or pulmonary condition; or
(ii) Materially worsens a totally disabling respiratory or
pulmonary impairment which is caused by a disease or
exposure unrelated to coal mine employment.
20 C.F.R. § 718.204(c)(1) (2003). The parties do not dispute that
Marshall was totally disabled by a respiratory or pulmonary condi-
tion, but disagree as to whether pneumoconiosis contributed to that
disability.
In finding that Marshall suffered from pneumoconiosis and that the
disease was a substantially contributing cause of Marshall’s disability,
the ALJ relied upon the opinion of Dr. Rasmussen, who examined
Marshall and performed pulmonary function and arterial blood gas
tests in January 1991. Dr. Rasmussen concluded that Marshall suf-
fered from pneumoconiosis based upon a positive x-ray interpretation
and Marshall’s lengthy history of coal dust exposure. The single x-ray
considered by Dr. Rasmussen was subsequently interpreted by other
4 PINEY CREEK COAL CO. v. MARSHALL
physicians as showing no evidence of pneumoconiosis, and the ALJ
concluded that the totality of the x-ray evidence did not establish the
existence of the disease.
In his examination report, Dr. Rasmussen noted a smoking history
of approximately twenty-five pack years that ended when Marshall
stopped smoking in 1973. Contrary to this summary, however, hospi-
talization records that were submitted in evidence reveal that Marshall
continued to smoke at least as late as October 1988. Reliance on an
inaccurate smoking history provides a sufficient basis for entirely dis-
crediting Dr. Rasmussen’s opinion concerning causation. Because Dr.
Rasmussen’s opinion was based on misinformation, the reliability of
his opinion was undermined, much the same way that an opinion is
undermined where it is based on invalid objective data. See, e.g., Lane
v. Union Carbide Corp., 105 F.3d 166, 173 (4th Cir.1997) (holding
that ALJ properly rejected opinions based on invalid objective
studies).
Moreover, although he included Marshall’s coronary artery dis-
ease, prior heart attack, and triple bypass surgery in his discussion of
Marshall’s health history, Dr. Rasmussen did not discuss any contri-
bution this significant condition may have made to Marshall’s disabil-
ity. Marshall suffered from severe coronary artery disease that
required frequent hospitalizations in the last ten years of his life. We
conclude that Dr. Rasmussen’s opinion fails to provide sufficient
explanation for his conclusions and does not constitute a reasoned
medical opinion.
Although the ALJ provided lengthy explanations for his conclu-
sions, his reasoning was based upon factual inaccuracies that resulted
from an improper evaluation of the medical opinions such that "no
‘reasonable mind’ could have interpreted and credited the [medical
opinions] as the ALJ did." Piney Mountain Coal Co. v. Mays, 176
F.3d 753, 764 (4th Cir. 1999). Moreover, because there remains no
evidence upon which to base a finding of entitlement to benefits, we
reverse the award of benefits. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
REVERSED