Sea \"B\" Mining Company v. Shirley Addison , 831 F.3d 244 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2324
SEA “B” MINING COMPANY, c/o HealthSmart Casualty Claims
Solutions,
Petitioner,
v.
SHIRLEY ADDISON, widow of Jerry Addison, deceased; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES
DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(14-0019 BLA)
Argued: December 9, 2015 Decided: July 29, 2016
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Petition for review granted; order vacated and remanded by
published opinion. Judge Agee wrote the opinion, in which Judge
Niemeyer and Judge Duncan joined.
ARGUED: Timothy Ward Gresham, PENNSTUART, Abingdon, Virginia,
for Petitioner. Victoria Susannah Herman, WOLFE WILLIAMS &
REYNOLDS, Norton, Virginia, for Respondent Shirley Addison. ON
BRIEF: Joseph E. Wolfe, WOLFE WILLIAMS & REYNOLDS, Norton,
Virginia, for Respondent Shirley Addison.
AGEE, Circuit Judge:
Jerry Addison applied for financial assistance under the
Black Lung Benefits Act, 30 U.S.C. §§ 901-944 (“the Act”),
claiming that he suffered from coal-dust induced pneumoconiosis
as a result of his prior work as a coal miner. Over conflicting
medical evidence, an Administrative Law Judge (“ALJ”) found that
Addison was entitled to benefits under the Act because he had
established the existence of clinical and legal pneumoconiosis
that resulted in a total respiratory disability. Addison’s
former employer, Sea B Mining Co. (“Sea-B”), filed a petition
for review, arguing the ALJ erred in several ways which were not
harmless. For the reasons described below, we grant the
petition for review, vacate the order awarding benefits, and
remand for further proceedings. 1
I.
We begin with a brief discussion of the statutory and
regulatory framework, which provides context for the events of
this case. The Act creates an adversarial administrative
procedure designed to determine whether miners (or their
surviving dependents) qualify for compensatory benefits because
1
Addison died during the pendency of this case, and his
widow, Shirley Addison, was substituted as the party in
interest.
2
they suffer from coal dust-related pulmonary injuries, commonly
categorized as pneumoconiosis. See 30 U.S.C. §§ 901-944. The
implementing regulations define pneumoconiosis as a “chronic
dust disease of the lung and its sequelae, including respiratory
and pulmonary impairments, arising out of coal mine employment.”
20 C.F.R. § 718.201(a).
Courts recognize two forms of pneumoconiosis: “clinical”
and “legal.” See Clinchfield Coal Co. v. Fuller, 180 F.3d 622,
625 (4th Cir. 1999). 2 Clinical pneumoconiosis “consists of those
diseases recognized by the medical community as pneumoconiosis,
i.e., the conditions characterized by permanent deposition of
substantial amounts of particulate matter in the lungs and the
fibrotic reaction of the lung tissue to that deposition caused
by dust exposure in coal mine employment.” 20 C.F.R. §
718.201(a)(1). Legal pneumoconiosis, by contrast, “encompasses
a wide variety of conditions . . . whose etiology is not the
inhalation of coal dust, but whose respiratory and pulmonary
symptomatology have nonetheless been made worse by coal dust
exposure.” Clinchfield, 180 F.3d at 625. The regulations thus
define legal pneumoconiosis as “any chronic lung disease or
impairment and its sequelae arising out of coal mine
employment.” 20 C.F.R. § 718.201(a)(2).
2 This opinion omits internal marks, alterations, citations,
emphasis, or footnotes from quotations unless otherwise noted.
3
To obtain black lung benefits under the Act, a claimant
must prove by a preponderance of the evidence that: “(1) he has
[either kind of] pneumoconiosis; (2) the pneumoconiosis arose
out of his coal mine employment; (3) he has a totally disabling
respiratory or pulmonary condition; and (4) pneumoconiosis is a
contributing cause to his total respiratory disability.”
Milburn Colliery Co. v. Hicks, 138 F.3d 524, 529 (4th Cir.
1998). The parties agreed that Addison suffered from a
disabling respiratory condition that prevented further
employment. The issue below, and on review, is whether
Addison’s disability was the result of pneumoconiosis arising
out of his coal mine employment. The dispute centers around the
exclusion and consideration of certain medical evidence and the
ALJ’s conclusions in evaluating the expert medical opinions.
A claimant may establish the existence of pneumoconiosis
by, among other means, chest x-rays and medical opinion
evidence. See 20 C.F.R. § 718.202(a). In addition, “[t]he
results of any medically acceptable test or procedure . . . ,
which tends to demonstrate the presence or absence of
pneumoconiosis . . . may be submitted in connection with a claim
and shall be given appropriate consideration.” 20 C.F.R. §
718.107(a). Although the regulations group the forms of
permissible evidence into discrete categories, an ALJ must weigh
all of the evidence together when determining whether the miner
4
has established the presence of pneumoconiosis. See Island
Creek Coal Co. v. Compton, 211 F.3d 203, 208-09 (4th Cir. 2000).
II.
A.
Addison worked in the coal industry for approximately 12
years. 3 Prior to abandoning this line of work in 1981 due to a
neck fracture and arthritis, his employment consisted of stints
as a general laborer, scoop operator, and finally foreman with
Sea-B. As often occurs in these cases, Addison was a cigarette
smoker, and his smoking history far exceeds the length of his
mining career. Addison began his pack-a-day smoking habit in
1956 and stopped sometime between 2001 and 2012. The evidence
is clear that Addison suffered from a myriad of ailments during
the latter part of his life that, if not caused by smoking, were
certainly amplified by this activity. Among other things, he
had a history of arthritis, coronary artery disease,
hypertension, and diabetes.
3Addison attested that he worked in the mines for 13 years.
The parties have stipulated, however, that the length of his
coal-mining career was actually 11.7 years.
5
In March 2011, Addison filed the present claim for living
miner benefits. 4 His case was referred to a claims manager, who
found that Addison was entitled to benefits due to his prior
coal employment. Sea-B disputed the award and sought
administrative review before an ALJ.
At the ensuing hearing, Addison testified about his
employment history, explaining that he worked in “very thick
dust” while at the mines. J.A. 52. He also testified about his
decade of breathing problems, for which he had been prescribed
oxygen and other pulmonary medications. Apart from Addison’s
testimony, the parties introduced various medical evidence
concerning his condition, including (1) conflicting
interpretations of several chest x-rays; (2) three CT scans
which all read negative for pneumoconiosis; (3) the results from
pulmonary function tests and arterial blood gas studies; (4)
hospitalization and treatment records; and (5) conflicting
medical opinions from three physicians, Dr. J. Randolph
Forehand, Dr. Gregory J. Fino, and Dr. James R. Castle, all of
4
Addison first requested black lung benefits in 2004, but
his claim was denied for failure to show a totally disabling
respiratory impairment. The instant case is a “subsequent”
claim subject to denial absent proof of a change in the
applicable condition of entitlement that was unfavorably
adjudicated. 20 C.F.R. § 725.309(c). The ALJ determined that
Addison had demonstrated such a change, in that he had become
totally disabled, and Sea-B has not challenged this
determination on appeal.
6
whom agreed that Addison was totally disabled by a respiratory
impairment but differed as to its cause and type.
Dr. Forehand, who performed the Department of Labor
sponsored examination, diagnosed Addison as having both
pneumoconiosis and a non-disabling ventilatory impairment caused
by cigarette smoking. His opinion was based on an arterial
blood gas study showing impaired gas exchange during exercise, a
single 2011 chest x-ray, and Addison’s history of coal dust
exposure. Had Addison not worked in the mines, Dr. Forehand
opined, “his arterial blood gas would no doubt be normal and his
chest x-ray clean.” J.A. 104.
Dr. Fino diagnosed Addison with “idiopathic interstitial
fibrosis” that, although disabling, is “unrelated to coal dust
inhalation.” J.A. 154. As support for this opinion, Dr. Fino
cited the “marked progression” of Addison’s lung condition
between 2008 and 2011, as evidenced by the photographic
progression in the CT scans and x-rays. J.A. 153. He explained
that the worsening of Addison’s illness “occurred far too
rapidly to be consistent with coal-mine-dust inhalation.” J.A.
205. Dr. Fino further testified that although coal workers’
pneumoconiosis can cause pulmonary fibrosis, the medical
evidence did not support such a diagnosis here. “Coal dust
causes nodular fibrosis,” Dr. Fino explained, “[w]hereas this
fibrosis [Addison] has is a diffuse type” which is “completely
7
different pathologically and radiographically.” J.A. 213. Dr.
Fino also noted that Addison’s fibrosis was restrictive in
nature, which is not characteristic of pneumoconiosis. Finally,
Dr. Fino averred that he was in the best position to assess
Addison’s condition because he had the benefit of reviewing lung
imagery over time, whereas Dr. Forehand had only conducted “a
one-time review of a chest x-ray.” J.A. 207.
Dr. Castle reached a similar conclusion as Dr. Fino,
opining that Addison suffered from idiopathic pulmonary
fibrosis. After reviewing essentially the same evidence, Dr.
Castle explained that these tests revealed “linear, irregular
type opacities which are not typical of coal workers’
pneumoconiosis.” J.A. 267-68. Dr. Castle further noted that
idiopathic pulmonary fibrosis is a disease of unknown cause but
is associated with heavy cigarette smoking and not coal dust
exposure.
B.
In deciding that Addison established the existence of
pneumoconiosis, the ALJ evaluated several items of conflicting
medical evidence. He first considered the x-ray evidence, which
consisted of three chest images dated January 2009, February
2011, and May 2011. The ALJ found the first two x-rays in
equipoise as to the existence of pneumoconiosis because
similarly qualified doctors rendered conflicting interpretations
8
for each. As to the May 2011 x-ray, the ALJ noted that “Dr.
Forehand and Dr. Miller interpreted it as positive for
pneumoconiosis . . . , while Dr. Scott interpreted the same x-
ray as negative for pneumoconiosis.” J.A. 12. 5 Observing that
Drs. Miller and Scott were both equally qualified “B-readers and
board-certified radiologists,” the ALJ determined that the “May
20, 2011 chest x-ray is overall positive for clinical
pneumoconiosis” because Dr. Miller’s positive reading was
“supported by Dr. Forehand’s opinion.” Id. Dr. Forehand is a
certified B-reader but not a radiologist. 6
The ALJ next considered the CT scan evidence and noted such
scans do not fall within the category of traditional x-ray
evidence, and consequently they “must be weighed with other
acceptable medical evidence under 20 C.F.R. § 718.107.” J.A.
13-14. The ALJ further interpreted the regulations as allowing
“only one reading of ‘other evidence’ such as CT scans.” J.A.
14. Accordingly, although Sea-B had offered three CT scans
5
Drs. Miller and Scott offered testimony regarding
Addison’s chest x-rays but did not submit further opinion
evidence as to his condition.
6
The record also contained a digital x-ray of Addison’s
chest dated October 20, 2011. While Dr. Fino opined that this
x-ray was negative for pneumoconiosis, the ALJ rejected this
interpretation as inconsistent with the “implementing
regulations.” J.A. 13 (citing 20 C.F.R. §§ 718.102, 718.202).
Consequently, the ALJ did not consider this x-ray evidence in
its analysis. Sea-B has not challenged this ruling on appeal.
9
spanning 2008 to 2012, all with negative readings for
pneumoconiosis, the ALJ determined Sea-B was entitled to admit
only one scan. Without explanation, the ALJ picked Addison’s
July 2012 CT scan, which showed “no changes consistent with a
coal mine dust associated occupational disease,” as evaluated by
Dr. Fino. Id. Because Dr. Fino’s testimony was undisputed, the
ALJ concluded that “the CT scan evidence d[id] not support a
finding of clinical or legal pneumoconiosis.” Id.After discounting Addison’s treatment and hospital records
as non-probative, the ALJ lastly turned to the conflicting
medical opinions from Drs. Forehand, Fino, and Castle. The ALJ
accorded the most weight to Dr. Forehand, finding his view
consistent with the Department of Labor’s position that coal
dust exposure and cigarette smoking are additive in producing
significant airway obstruction. J.A. 20. On this point, the
ALJ referenced 65 Fed. Reg. 79,940 (Dec. 20, 2000), which notes
that “[c]oal dust exposure is additive with smoking in causing
clinically significant airways obstruction and chronic
bronchitis.” The ALJ further found Dr. Forehand’s opinion
supported by unidentified “diagnostic testing.” J.A. 20.
The ALJ discredited the opinions of Drs. Fino and Castle
for several reasons. He found, among other things, that their
diagnoses overemphasized the fact that Addison’s pulmonary
impairment was restrictive in nature, rather than obstructive,
10
when evaluating the existence of pneumoconiosis. The
regulations, on the other hand, state that legal pneumoconiosis
includes “any chronic restrictive or obstructive pulmonary
disease arising out of coal mine employment.” 20 C.F.R. §
718.201(a)(2). The ALJ also found the opinions “based on
generalities, rather than focusing on [Addison’s] condition.”
J.A. 19. In the end, the ALJ concluded that the medical opinion
evidence weighed in Addison’s favor.
Specifically crediting his determination of the x-ray
evidence and Dr. Forehand’s report over the remaining record,
the ALJ found that Addison had established the existence of both
clinical and legal pneumoconiosis by a preponderance of the
evidence. After further finding that Addison’s pneumoconiosis
arose out of his prior employment and was a substantially
contributing cause of his disability, the ALJ awarded benefits
under the Act.
C.
Sea-B filed an administrative appeal with the Benefits
Review Board (“Board”), specifically disputing the ALJ’s finding
that the medical evidence established the existence of
pneumoconiosis. 7 In a split decision, the Board affirmed.
7
Sea-B also challenged whether the medical evidence was
sufficient to establish disability causation pursuant to 20
C.F.R. § 718.204(c). Sea-B has not raised this issue in its
(Continued)
11
Agreeing with Sea-B, the majority conceded that the ALJ
“erred in considering only one of the three CT scans [Sea-B]
submitted in its affirmative case.” J.A. 30. Ultimately,
however, the majority declined to vacate the award, finding that
Sea-B failed to show this error was harmful. Id. They faulted
Sea-B for not proffering a “specific explanation of how the
[ALJ’s] error could have made a difference.” Id. The dissent
took issue with this conclusion, explaining that, “[b]y the
majority’s reasoning, improper exclusion of evidence would
always be harmless error because it is not possible to determine
with certainty its effect on the trier-of fact’s ultimate
determination.” J.A. 34. Given this error, the dissent
explained, the ALJ’s “overall finding of the existence of
pneumoconiosis . . . is tainted” and should be sent back. J.A.
35.
The majority also rejected Sea-B’s arguments against the
ALJ’s method of weighing the medical evidence. In response to
Sea-B’s contention that the ALJ impermissibly resolved the
conflicting x-ray evidence by resorting to a headcount, the
Board concluded that he “properly considered the weight of the
positive x-ray readings in light of the readers’
petition, thus waiving further judicial review. See United
States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004).
12
qualifications.” J.A. 28. The Board further sustained the
ALJ’s decision to accord “less weight to [Dr. Fino’s and Dr.
Castle’s] opinions because the[se] physicians were not able to
adequately explain the bases for their conclusions.” J.A. 32.
Following the Board’s unfavorable decision, Sea-B timely
filed the instant petition for review. We have jurisdiction
under 33 U.S.C. § 921(c).
III.
Our review of a decision awarding black lung benefits is
“limited.” Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 310
(4th Cir. 2012). We evaluate the legal conclusions of the Board
and ALJ de novo but defer to the ALJ’s factual findings if
supported by substantial evidence. See Hobet Mining, LLC v.
Epling, 783 F.3d 498, 504 (4th Cir. 2015) (“We ask only whether
substantial evidence supports the factual findings of the ALJ
and whether the legal conclusions of the Board and ALJ are
rational and consistent with applicable law.”). “Substantial
evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305
U.S. 197, 229 (1938).
Applying this standard, we do not undertake to reweigh
contradictory medical evidence, make credibility determinations,
13
or substitute our judgment for that reached below. Rather, the
duty to resolve conflicts in the evidence rests with the ALJ as
factfinder. And when conflicting evidence allows reasonable
minds to differ as to whether a claimant is disabled or has
pneumoconiosis, the responsibility for that decision falls on
the ALJ. See Harman Mining Co., 678 F.3d at 310.
That said, our deference to an ALJ’s factual findings is
not unlimited. An ALJ must still conduct “an appropriate
analysis of the evidence to support his conclusion.” Milburn
Colliery Co., 138 F.3d at 529. As this Court has previously
explained, “[u]nless the [ALJ] has analyzed all evidence and has
sufficiently explained the weight he has given to [the]
exhibits, to say that his decision is supported by substantial
evidence approaches an abdication of the court’s duty to
scrutinize the record as a whole to determine whether the
conclusions reached are rational.” Sterling Smokeless Coal Co.
v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997). Thus, “[e]ven
if legitimate reasons exist for rejecting [or crediting] certain
evidence, the [ALJ] cannot do so for no reason or for the wrong
reason.” King v. Califano, 615 F.2d 1018, 1020 (4th Cir. 1980).
Where an ALJ has incorrectly weighed the evidence or failed to
account for relevant record evidence, deference is not warranted
and remand is frequently required. See Island Creek Coal Co. v.
Compton, 211 F.3d at 213.
14
Furthermore, as a condition to appellate review, an ALJ
must “adequately explain why he credited certain evidence and
discredited other evidence.” Milburn Colliery Co., 138 F.3d at
533; see also Consolidation Coal Co. v. Filer, No. 95-1270, 1996
WL 139196, at *5 (4th Cir. Mar. 26, 1996) (“Decisions on
conflicting evidence . . . must be addressed and explained at
the administrative level before judicial review under the
substantial evidence standard can be accomplished
meaningfully.”). Although this requirement “is not intended to
be a mandate for administrative verbosity,” a reviewing court
must be able to “discern what the ALJ did and why he did
it.” Piney Mountain Coal Co. v. Mays, 176 F.3d 753, 762 n.10
(4th Cir. 1999).
With this standard of review as the backdrop, we turn to
Sea-B’s arguments.
IV.
A.
Sea-B initially contends that the ALJ’s decision to
consider only one of the three CT scans included in the record
was error requiring reversal of the ALJ’s judgment. Addison
does not argue in favor of the ALJ’s evidentiary ruling; rather,
like the Board, he contends Sea-B failed to show this error was
prejudicial.
15
We agree with the parties and the Board that the ALJ erred:
Sea-B was entitled to submit, and the ALJ was required to
consider, one reading of each CT scan under 20 C.F.R. § 718.107.
The remaining issue is whether Sea-B is entitled to any relief
for that error.
Sea-B appears to contend that this evidentiary error
requires remand without further inquiry. On brief, Sea-B argued
that when an ALJ fails to review all relevant evidence,
“[a]ppellate review is impossible.” Opening Br. 21. This
argument sweeps too broadly. Administrative adjudications are
subject to the same harmless error rule that generally applies
to civil cases. Reversal on account of error is not automatic
but requires a showing of prejudice. See Consolidation Coal Co.
v. Williams, 453 F.3d 609, 621-22 (4th Cir. 2006). The harmless
error rule applies to agency action because if the agency’s
mistake did not affect the outcome, it would be senseless to
vacate and remand for reconsideration. The rule of prejudicial
error further prevents reviewing courts from becoming
“impregnable citadels of technicality” and preserves the
relative roles of courts and agencies in implementing
substantive policy. Shinseki v. Sanders, 556 U.S. 396, 407
(2009).
The burden to demonstrate prejudicial error is on Sea-B,
the party challenging the agency action. Id. at 409. However,
16
the harmless error rule is “not . . . a particularly onerous
requirement.” Id. at 410. As the Supreme Court has explained,
“[o]ften the circumstances of the case will make clear to the
appellate judge that the ruling, if erroneous, was harmful and
nothing further need be said.” Id. Our determination of
prejudice ultimately requires “case-specific application of
judgment, based upon examination of the record,” not “mandatory
presumptions and rigid rules.” Id. at 407. In each case, an
appellate court must consider “the likelihood that the result
would have been different,” as well as how the error might
impact the public perception of such proceedings. Id. at 411.
In claiming that the error here was not harmless, Sea-B
relies on our decision in Island Creek Coal Co. v. Compton,
where we held “all relevant evidence is to be considered” in
evaluating a claim for black lung benefits. 211 F.3d at 208.
Selecting this language out of context, Sea-B posits that the
ALJ’s failure to evaluate the full spectrum of CT scan evidence
is per se prejudicial. We cannot agree. Sea-B’s proposed per
se rule is contrary to the Supreme Court’s direction not to
determine prejudice through “mandatory presumptions and rigid
rules.” Shinseki, 556 U.S. at 398. The use of such
presumptions, the Court explained, “exhibit[s] the very
characteristics that Congress sought to discourage,” because it
prevents the court “from resting its conclusion on the facts and
17
circumstances of the particular case.” Id. at 408.
Furthermore, Sea-B has not suggested any basis for concluding
that an ALJ’s failure to evaluate every piece of relevant
evidence will always shape the outcome. For example, we could
hardly find prejudice where the excluded evidence was merely
cumulative or concerned an uncontested point. See Hall v.
Arthur, 141 F.3d 844, 850 (8th Cir. 1998) (“The exclusion of
cumulative evidence, of course, is merely harmless error.”).
Although we reject Sea-B’s proposed per se rule, we agree
that the ALJ’s decision to exclude the additional CT scan
evidence was not harmless. This error affects the determination
of both clinical and legal pneumoconiosis and impacts the ALJ’s
consideration of the other evidence in this case.
The omitted CT scan evidence is unquestionably probative of
the central issue in dispute: whether Addison suffered from
pneumoconiosis. Considered in aggregate, the scans show a
timeline of the progression of Addison’s condition that neither
Dr. Forehand nor the ALJ addressed. As explained by Dr. Fino,
this progression “occurred far too rapidly to be consistent with
coal-mine-dust inhalation.” J.A. 205. While the ALJ was not
bound to accept this conclusion, he was required to consider it
and explain why he found other evidence more persuasive.
Although the ALJ acknowledged that such evidence “must be
18
weighed with other acceptable medical evidence,” J.A. 13-14, he
failed to undertake that task.
When the record contains the results of a medically
acceptable test that is probative of pneumoconiosis,
particularly where it is uncontested, the factfinder must
consider that evidence in his analysis. See Dixie Fuel Co., LLC
v. Dir., OWCP, 700 F.3d 878, 880 (6th Cir. 2012); Shelton v. Old
Ben Coal Co., 933 F.2d 504, 507 (7th Cir. 1991). That
obligation went unfulfilled here, as the ALJ failed altogether
to weigh the CT scan evidence against the remaining record in
his decision. And this error had multiple ramifications. By
excluding the CT scans, the ALJ was unable to properly weigh the
CT scan evidence as a whole, particularly as probative of
idiopathic pulmonary fibrosis and exclusive of pneumoconiosis.
Further, the CT scans would have contradicted the ALJ’s findings
as to the x-ray evidence. Consequently, the ALJ never
considered, much less explained, how the CT scan evidence would
weigh against the x-ray evidence or impact his consideration of
the overall record. See Milburn Colliery Co., 138 F.3d at 531(explaining the general rule that an ALJ must “consider all the
relevant evidence presented”).
In a related way, the exclusion of the CT scan evidence
rendered the ALJ’s consideration of the medical opinions of Drs.
Fino and Castle inadequate. The ALJ correctly noted that
19
“[w]hen CT scans are evaluated by qualified experts . . . they
are important diagnostic tools that have resulted in major
improvements in the assessment of occupational lung disease.”
J.A. 14. And the ALJ credited both Drs. Fino and Castle as such
experts. However, the ALJ never considered the importance of
the CT scan timeline to the opinions of Drs. Fino and Castle.
See J.A. 153, 267-69. The two doctors tied their progression
diagnosis to extensive support in the medical literature and
other physical tests, none of which the ALJ addressed. Again,
the ALJ is not required to accept the medical diagnosis that is
shown by the CT scans and their analysis in the medical
opinions. But he is required to consider that evidence and
explain the reasons for finding another analysis entitled to
more weight. See King, 615 F.2d at 1020 (“Even if legitimate
reasons exist for rejecting or discounting certain evidence, the
[ALJ] cannot do so for no reason or for the wrong reason.”).
Thus, by erroneously excluding the CT scan evidence, the ALJ’s
opinion was significantly flawed on all these fronts to the
prejudice of Sea-B.
We have previously recognized that prejudice is a natural
effect of an error of this kind. See Consolidation Coal Co. v.
Brown, 230 F.3d 1351 (4th Cir. 2000); Island Creek Coal Co. v.
Groves, 246 F. App’x 842, 846 (4th Cir. 2007); see also Eastover
Mining Co. v. Williams, 338 F.3d 501, 508 (6th Cir. 2003)
20
(stating where “an ALJ has improperly characterized the evidence
or failed to account [for] relevant record material, deference
is inappropriate and remand is required”). And here, that
prejudice is magnified because it is intertwined with the ALJ’s
findings as to the x-ray evidence and the medical opinions, not
just the CT scan evidence.
Given that the record is otherwise comprised of
contradictory evidence regarding Addison’s diagnosis, this
excluded evidence could have materially affected the ALJ’s
decision. See, e.g., Carnevale v. Gardner, 393 F.2d 889, 891
(2d Cir. 1968) (“[I]t is clear that in summarizing and sifting
the evidence in this case, the Hearing Examiner totally ignored
a major piece of evidence which might well have influenced his
decision. We cannot fulfill the duty entrusted to us . . . if
we cannot be sure that he considered some of the more important
evidence presented[.]”). Rather than assessing and rejecting a
single negative CT scan, the ALJ should have weighed all three
negative CT scans along with the other credited evidence.
The error was not harmless and warrants remand to ensure
the ALJ fully considers the entire record, particularly in
relation to the opinions of Drs. Fino and Castle, who, as
discussed in more detail below, both found that these scans
affected the evaluation of the x-ray evidence and discredited a
diagnosis of pneumoconiosis. See Stout v. Comm’r Soc. Sec.
21
Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (explaining that an
error is harmless only if a court can conclude with confidence
that “no reasonable ALJ, when fully crediting the testimony,
could have reached a different [result]”).
B.
Sea-B next argues that the ALJ erred by utilizing a
headcount of the x-ray readings to conclude Addison suffered
from pneumoconiosis. Because the record is insufficiently
developed to permit appellate review of this issue, we must
vacate and remand for the ALJ to provide an explanation for his
decision. See Consolidation Coal Co., 1996 WL 139196, at *5
(“Decisions on conflicting evidence . . . must be addressed and
explained at the administrative level before judicial review
under the substantial evidence standard can be accomplished
meaningfully.”).
As noted, the ALJ considered three chest x-rays dated
January 12, 2009, February 23, 2011, and May 20, 2011, in his
pneumoconiosis analysis. He found the first two “in equipoise
as to the existence of pneumoconiosis” because “equally
qualified” B-reader radiologists had rendered contradictory
opinions on each image. See J.A. 12. Turning to the May 20,
2011 x-ray, however, the ALJ found it positive for
pneumoconiosis and stated the following:
22
There were three readings of the most recent
x-ray taken on May 20, 2011. Dr. Forehand
and Dr. Miller interpreted it as positive
for pneumoconiosis . . . , while Dr. Scott
interpreted the same x-ray as negative for
pneumoconiosis. Dr. Forehand is a B reader
but not board certified in radiology. Drs.
Scott and Miller are both dually qualified
as B-readers and board-certified
radiologists. Dr. Miller’s opinion that the
x-ray is positive for clinical
pneumoconiosis is supported by Dr.
Forehand’s opinion. Consequently, I find
that the May 20, 2011, chest x-ray is
overall positive for clinical
pneumoconiosis.
J.A. 12.
Sea-B asserted before the Board that the ALJ did not weigh
this evidence on a valid basis, but instead resolved the issue
by a headcount of expert witnesses. The Board disagreed and
upheld the ALJ’s conclusion, stating that he “properly
considered the weight of the positive x-ray readings in light of
the readers’ qualifications.” J.A. 28. The record basis the
Board referenced was its statement “that the May 20, 2011 x-ray
evidence was positive for pneumoconiosis, as it was read as
positive by both Dr. Miller and Dr. Forehand, and as negative
only by Dr. Scott.” J.A. 28.
When engaged in fact finding, administrative agencies may
not base a decision on the numerical superiority of the same
items of evidence. See Sterling Smokeless Coal Co., 131 F.3d at
441 (“By resolving the conflict of medical opinion solely on the
23
basis of the number of physicians supporting the respective
parties, the ALJ below committed . . . error[.]”). In assessing
such evidence, the ALJ must articulate specific reasons and
provide support for favoring one medical reading over another.
See Milburn Colliery Co., 138 F.3d at 536; see also Mitchell v.
OWCP, 25 F.3d 500, 508 (7th Cir. 1994) (observing that an ALJ
may not substitute his judgment for that of the medical
evidence). We have rejected the practice of simply resorting to
a numerical headcount as “hollow” and not consistent with an
ALJ’s duties in making a reasoned decision. Adkins v. Dir.,
OWCP, 958 F.2d 49, 52 (4th Cir. 1992); see also Mullins Coal
Co., Inc. of Va. v. Dir., OWCP, 484 U.S. 135, 149 n.23 (1987)
(explaining that an ALJ must “weigh the quality, and not just
the quantity, of the evidence”).
We cannot decipher from the ALJ’s sparse explanation how,
or if, he weighed the x-ray readings in light of the readers’
qualifications. To conduct appellate review, we must be able to
identify that the ALJ “has analyzed all evidence and has
sufficiently explained the weight he has given to [the]
exhibits.” Sterling Smokeless Coal Co., 131 F.3d at 439.
Without a more specific record of the ALJ’s rationale for
reaching his decision as to the May 20 x-ray, we are unable to
adequately perform our judicial review function to assure that
the ALJ’s decision is based on a “reasoned explanation.”
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Adkins, 958 F.2d at 52. We cannot guess at what the ALJ meant
to say, but didn’t because “[e]stablished precedent dictates
that a court may not guess at what an agency meant to say, but
must instead restrict itself to what the agency actually did
say.” Nken v. Holder, 585 F.3d 818, 822 (4th Cir. 2009).
Consequently, on remand, the ALJ should provide an
explanation for his decision concerning the May 20 x-ray by
explaining how he weighed the evidence “in light of the readers’
qualifications” and whether his conclusion was based on a
numerical headcount of experts. With a “reasoned explanation”
in the record, the court would then be in a position to conduct
appellate review should that issue arise again. Adkins, 958
F.2d at 52.
C.
Lastly, we turn to the ALJ’s consideration of the medical
opinion evidence, particularly in view of the disposition of the
issues involving the CT scan and x-ray evidence. As noted,
three physicians submitted reports regarding the cause of
Addison’s disability. Dr. Forehand opined that Addison suffered
from pneumoconiosis based on a physical examination in
combination with Addison’s prior occupational exposure to coal
dust. Drs. Fino and Castle, on the other hand, agreed that
Addison’s respiratory troubles were unrelated to coal dust
25
exposure. The ALJ sided with Dr. Forehand, finding his
diagnosis worthy of the greatest weight.
Although it is within the ALJ’s statutory authority to
evaluate and weigh medical opinion evidence, an ALJ may not
credit or discredit expert testimony “for no reason or for the
wrong reason.” King, 615 F.2d at 1020; see also Island Creek
Coal Co. v. Compton, 211 F.3d at 211 (“The ALJ must examine the
reasoning employed in a medical opinion in light of the
objective material supporting that opinion, and also must take
into account any contrary test results or diagnoses.”). In the
absence of an adequate explanation supporting the ALJ’s
evaluation, “to say that his decision is supported by
substantial evidence approaches an abdication of the court’s
duty to scrutinize the record as a whole to determine whether
the conclusions reached are rational.” Sterling Smokeless Coal
Co., 131 F.3d at 439-40; see also Milburn Colliery Co., 138 F.3d
at 533 (finding error where “the ALJ failed to adequately
explain why he credited certain evidence and discredited other
evidence”).
The ALJ credited Dr. Forehand’s diagnosis based on its
purported consistency with the following passage from the
preamble to the amended regulations: “Coal dust exposure is
additive with smoking in causing clinically significant airways
obstruction and chronic bronchitis.” J.A. 20 (citing 65 Fed.
26Reg. 79,940 (Dec. 20, 2000)). It is well settled that a
factfinder may consult the Act’s preamble in assessing medical
opinion evidence. See Harman Mining Co., 678 F.3d at 314-15.
Nevertheless, the ALJ erred in relying on this passage here
because it has no bearing on Dr. Forehand’s pneumoconiosis
opinion.
Although Dr. Forehand diagnosed Addison with an obstructive
impairment, he attributed that impairment solely to cigarette
smoking and found it non-disabling. See J.A. 104. Dr.
Forehand’s diagnosis of legal pneumoconiosis, instead, was based
on an arterial blood gas study showing weakened gas exchange and
the May 2011 x-ray, which he concluded would have been different
had Addison never been exposed to coal dust. However, Dr.
Forehand never says why he reached that conclusion, particularly
since he never found coal dust exposure related to Addison’s
obstructive impairment. Quite the opposite, Dr. Forehand’s
opinion contradicts the preamble text, as he found the
obstructive respiratory impairment was attributed entirely to
smoking without any aggravation from coal dust exposure.
Because this proffered explanation for elevating Dr.
Forehand’s diagnosis is not supported, the ALJ must reevaluate
that opinion to determine the proper weight it should be given.
See Island Creek Coal Co. v. Compton, 211 F.3d at 211-12; King,
615 F.2d at 1020 (“Even if legitimate reasons exist for
27
rejecting or discounting certain evidence, the [ALJ] cannot do
so for no reason or for the wrong reason.”).
As noted earlier, the ALJ’s error as to the CT scan
evidence (and the uncertainty as to the validity of the ALJ’s
determination on the x-ray evidence) render his consideration of
the opinions of Drs. Fino and Castle infirm. Their opinions
explain in detail, with extensive test and medical literature
support, why they conclude Addison had idiopathic pulmonary
fibrosis instead of coal workers’ pneumoconiosis. A substantial
basis for those opinions was the progressive timeline of
Addison’s disease, proven by the chronology of CT scans and x-
rays, that established idiopathic pulmonary fibrosis. While the
ALJ was not required to accept their opinions, he could not have
made a reasoned decision evaluating the opinions in view of the
foundational errors regarding the medical evidence.
Finally, we note the ALJ ignored the respective
qualifications of these physicians in reaching his decision.
Dr. Forehand is a board-certified pediatrician and allergist,
whereas Drs. Fino and Castle are both board-certified in
internal medicine and pulmonary disease. “A primary method of
evaluating the reliability of an expert’s opinion is of course
his expertise[.]” Adkins, 958 F.2d at 52. The ALJ should have
given some reasoned explanation as to why Dr. Fino’s and Dr.
28
Castle’s superior qualifications did not carry any weight in his
evaluation. See Milburn Colliery Co., 138 F.3d at 536.
The ALJ’s finding that Addison suffered from legal
pneumoconiosis relied heavily on the weight given to Dr.
Forehand’s opinion over that of Drs. Castle and Fino. As
explained several ways above, however, the error as to the CT
scan evidence fundamentally affected the ALJ’s capacity to reach
that conclusion. The ALJ failed to analyze all of the relevant
evidence and give a reasoned explanation for how it was weighed.
Sterling, 131 F.3d at 439-40 (“Unless the [ALJ] has analyzed all
evidence and has sufficiently explained the weight he has given
to [the] exhibits, to say that his decision is supported by
substantial evidence approaches an abdication of the court’s
duty to scrutinize the record as a whole to determine whether
the conclusions reached are rational.”). Consequently, we
conclude these errors were prejudicial to Sea-B because without
them the likelihood that the result would have been different is
significant. See Shinseki, 556 U.S. at 410 (“Often the
circumstances of the case will make clear to the appellate judge
that the ruling, if erroneous, was harmful and nothing further
need be said.”).
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V.
For all these reasons, we grant the petition for review,
vacate the Board’s decision, and remand with instructions for
the Board to return Addison’s case to the ALJ for
reconsideration consistent with this opinion.
PETITION FOR REVIEW GRANTED;
ORDER VACATED AND REMANDED
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