Grizzle v. Pickands Mather and Company/Chisolm Mines, No. 91-1078

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before HALL and LUTTIG; LUTTIG; K.K. HALL
• Citation: 994 F.2d 1093
• Parties: Nancy GRIZZLE, Widow of Bramble Grizzle, Petitioner, v. PICKANDS MATHER AND COMPANY/CHISOLM MINES; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Docket Number: No. 91-1078
• Decision Date: 02 June 1993

Page 1093

994 F.2d 1093 Nancy GRIZZLE, Widow of Bramble Grizzle, Petitioner,
v.
PICKANDS MATHER AND COMPANY/CHISOLM MINES; Director, Office
of Workers' Compensation Programs, United States
Department of Labor, Respondents. No. 91-1078. United States Court of Appeals,
Fourth Circuit. Argued March 5, 1993.
Decided June 2, 1993.

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Vernon Mandel Williams, Wolfe & Farmer, Norton, VA, argued (Bobby S. Belcher, on brief), for petitioner.

Christian P. Barber, Office of the Sol., U.S. Dept. of Labor, Mark Elliott Solomons, Arter & Hadden, Washington, DC, argued (Marshall J. Breger, Sol. of Labor, Donald S. Shire, Associate Sol. for Black Lung Benefits, Patricia M. Nece, Counsel for Appellate Litigation, Jeffrey S. Goldberg, Office of the Sol., U.S. Dept. of Labor, Laura Metcoff Klaus, Arter & Hadden, Washington, DC, on brief), for respondents.

Before HALL and LUTTIG, Circuit Judges, and MACKENZIE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

LUTTIG, Circuit Judge:

Nancy Grizzle petitions for review of an order of the Benefits Review Board, which affirmed an administrative law judge's denial of her claim for survivor's benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-945. Because substantial evidence supported the ALJ's decision, we affirm.

I.

Petitioner Nancy Grizzle is the widow of Bramble Grizzle, a coal miner who labored in the mines in various capacities for thirty-five years before ceasing work in June 1983 due to health problems. Respondent Pickands Mather and Company employed Mr. Grizzle from 1975 through 1983. Mr. Grizzle, who had smoked one pack of cigarettes per day for the last forty years of his life, died on December 28, 1983, and on January 24, 1984, petitioner filed a claim for black lung survivor's benefits. Petitioner's claim eventually was forwarded to the Department of Labor's Office of Administrative Law Judges.

An ALJ conducted a hearing on petitioner's claim on October 19, 1987. After also considering medical records, exhibits, and deposition testimony, he issued a decision and order on March 25, 1988, denying petitioner benefits. In his decision, the ALJ first made a number of undisputed factual findings, most notably that Mr. Grizzle had pneumoconiosis to some degree at the time of his death, that he also had suffered from severe emphysema and heart disease, and that the direct cause of his death was a pulmonary hemorrhage caused by lung cancer. See J.A. at 14-19, 21. The ALJ then evaluated the testimony and opinions of a number of physicians on whether pneumoconiosis was a substantially contributing cause or factor leading to Mr. Grizzle's death or if complications of pneumoconiosis caused his death, id. at 18-

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19, prerequisites to recovery of benefits under 20 C.F.R. § 718.205(a), (c)(1)-(4). ¹

Dr. Alfredo Soliva, Mr. Grizzle's treating physician, opined that pneumoconiosis contributed to Mr. Grizzle's death by weakening his heart and lowering his resistance so that he could not withstand bleeding caused by his cancer. Id. at 38-39. Soliva testified that, in his opinion, pneumoconiosis had caused Mr. Grizzle's emphysema and heart problems, and may well have caused the cancer that ultimately killed him, id. at 50, 52, 70; in fact, Soliva "was completely convinced by all the presenting clinical evidence that all [of Mr. Grizzle's] problems stemmed from his pneumoconiosis and it's [sic] complications." Id. at 43.

Other physicians offered contradictory opinions. Dr. Paul Nickerson, one of three physicians at the Cleveland Clinic Foundation who had thoroughly examined and treated Mr. Grizzle four months prior to his death, diagnosed Mr. Grizzle as having had a mild case of pneumoconiosis, but a severe case of emphysema. In his opinion, Mr. Grizzle was totally disabled due to lung problems resulting from the emphysema at the time he examined him. Dr. Nickerson believed that the emphysema could be attributed to cigarette smoking and that the effect of pneumoconiosis on Mr. Grizzle's lung problems, if any, was "negligible" and "of no major import." Id. at 152, 154, 156, 169.

Dr. Echols Hansbarger, a Board-certified pathologist, reviewed Mr. Grizzle's autopsy protocol, including various lung tissue slides. He diagnosed the miner as having been severely afflicted with emphysema, which, he concluded, was totally unrelated to the mild ("just barely there") pneumoconiosis from which he also suffered. Id. at 85, 89, 97. Hansbarger testified unequivocally that there is no documented causal link between pneumoconiosis and lung cancer. Id. at 82, 87-88. He repeatedly testified that, in his opinion as a pathologist, "[pneumoconiosis] did not contribute in any way" to Mr. Grizzle's death. Id. at 106; see also id. at 80, 97, 105. Last, Hansbarger opined that, "based on reasonable medical certainty, ... the pulmonary tumor [that killed Mr. Grizzle] was not related to his coal worker's disease in any way," and that "the carcinoma of the lung that killed [Mr. Grizzle] was caused by cigarette smoking. There isn't any question in my mind about that." Id. at 81-82. ²

Weighing the evidence, the ALJ found Dr. Hansbarger's opinion, which was corroborated by that of Dr. Nickerson, to be far more persuasive and reliable, and better supported by the medical record, than that of Dr. Soliva. He concluded, as a result, that

[t]he degree of pneumoconiosis involved in Mr. Grizzle's lung problem was insufficient to contribute to the ultimate demise of Mr. Grizzle. Accordingly, although Mr. Grizzle suffered from coal workers' pneumoconiosis at the time of his death, such pneumoconiosis was not the cause of his demise, nor was it a substantially contributing or a complicating factor in his ultimate and untimely death.

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Id. at 21. He consequently denied petitioner's claim.

The Benefits Review Board affirmed. Emphasizing that it is the province of the ALJ to make credibility determinations and to weigh the evidence, the Board concluded that the ALJ had provided a well-reasoned explanation for denying benefits that was fully supported by substantial record evidence. Id. at 5. This petition for review followed.

II.

A.

Our review of the Board's decision is governed by section 21 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 921. 30 U.S.C. § 932(a); Director, OWCP v. Consolidation Coal Co., 923 F.2d 38, 40 (4th Cir.1991). Like the Board, we must affirm the factual findings of the ALJ if they are supported by substantial evidence. Consolidation Coal Co., 923 F.2d at 40-41; Zbosnik v. Badger Coal Co., 759 F.2d 1187, 1189 (4th Cir.1985). Subject to the substantial evidence requirement, however, as the Board noted, "[t]he ALJ has sole power to make credibility determinations and resolve inconsistencies in the evidence." Freeman United Coal Mining Co. v. Benefits Review Bd., 912 F.2d 164, 168 (7th Cir.1990); see also Tennessee Consol. Coal Co. v. Crisp, 866 F.2d 179, 185 (6th Cir.1989).

B.

Petitioner's principal contention is that Dr. Soliva's diagnoses raised at least some doubt as to whether pneumoconiosis was a substantially contributing cause of her husband's death and that the ALJ erred by failing to resolve this doubt in her favor.

We know of no authority holding that any doubt created by a claimant's evidence must be resolved in the claimant's favor. Such a rule would eviscerate the complex statutory and regulatory framework created by Congress to determine eligibility for black lung benefits; the claimant would prevail any time she could produce evidence supporting entitlement, regardless of the weight of evidence marshaled against her claim.

This court, however, has embraced the "true doubt rule," which favors claimants in certain limited circumstances and for the application of which petitioner also argues. When there is conflicting, but equally probative, evidence for and against the existence of a particular fact in the benefits inquiry, or, ultimately, when the evidence for and against entitlement to black lung benefits is equiponderate, the true doubt rule requires that the benefit of the doubt be given to the claimant. Adkins v. Director, OWCP, 958 F.2d 49, 52 n. 4 (4th Cir.1992) ("Equally probative evidence creates a 'true doubt,' which must be resolved in favor of the miner." (emphasis added)); Greer v. Director, OWCP, 940 F.2d 88, 90-91 (4th Cir.1991); see also Br. of Director, OWCP [hereinafter Br. of Director] at 4 ("[t]rue doubt is not any doubt"). ³ As the Director of OWCP observes, the true doubt rule is "a narrow test applicable only in very specific situations." Br. of Director at 21. It applies only "[i]n cases that are

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simply too close to call." Id. at 3; see also id. at 6 (same). Very seldom will the evidence in support of and against entitlement be equally probative and equally persuasive. Indeed, it would seem to be the unusual case in which an ALJ, intent on properly weighing the competing evidence, will come to the conclusion that neither side's evidence was even slightly more convincing than the other's. Particularly in cases such as this, whose resolution depends not so much on whether the fact-finder chooses to accept one objective medical test over another equally reliable but conflicting test, see, e.g., Greer, 940 F.2d at 89-91 (two contemporaneous, equally reliable pulmonary function tests, one supporting the claim, one not, held to give rise to true doubt), but on whether he accepts one doctor's interpretation of the medical data over another's, the likelihood of such equipollence would appear to be minimal.

Petitioner plainly is not entitled to the presumption of the true doubt rule. The ALJ did not find that the evidence presented by Nancy Grizzle was equally as probative and persuasive as that offered by Pickands Mather. On the contrary, on the dispositive issue of whether pneumoconiosis was a substantially contributing cause of Mr....