Island Creek Coal Co. v. Compton

• Decision Date: 02 March 2000
• Docket Number: No. 98-2051,98-2051
• Citation: 211 F.3d 203
• Parties: (4th Cir. 2000) ISLAND CREEK COAL COMPANY, Petitioner, v. DENNIS E. COMPTON; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents. (97-1477-BLA) . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 203

211 F.3d 203 (4th Cir. 2000)

ISLAND CREEK COAL COMPANY, Petitioner, v. DENNIS E. COMPTON; DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents.

No. 98-2051.(97-1477-BLA)

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: March 2, 2000.

Decided: May 2, 2000.

On Petition for Review of an Order of the Benefits Review Board.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

COUNSEL ARGUED: Douglas Allan Smoot, JACKSON & KELLY, P.L.L.C., Charleston, West Virginia, for Island Creek. Michelle Seyman Gerdano, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Director. Perry Duane McDaniel, CRANDALL, PYLES, HAVILAND & TURNER, L.L.P., Charleston, West Virginia, for Compton. ON BRIEF: Henry L. Solano, Solicitor of Labor, Donald S. Shire, Associate Solicitor, Christian P. Barber, Counsel for Appellate Litigation, Office of the Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Director. George P. Surmaitis, CRANDALL, PYLES, HAVILAND & TURNER, L.L.P., Charleston, West Virginia, for Compton.

Before WILKINS and LUTTIG, Circuit Judges, and James H. MICHAEL, Jr., Senior United States District Judge for the Western District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Judge Wilkins wrote the opinion, in which Judge Luttig and Senior Judge Michael joined.

OPINION

WILKINS, Circuit Judge:

Island Creek Coal Company (Island Creek or the company) petitions for review of a decision of the Benefits Review Board (the Board or BRB) affirming an award by an Administrative Law Judge (ALJ) of black lung benefits to Dennis E. Compton. See 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 1999). For the reasons that follow, we vacate the order of the Board and remand with instructions for the Board to remand the action to an ALJ for further proceedings.

I.

Dennis Compton worked in the coal mines for over thirty years, primarily for Island Creek. For several years preceding his retirement in 1995, Compton operated a bulldozer on a mound of coal processing refuse; the ALJ characterized this work as "extremely dusty." J.A. 377. Compton smoked from the late 1950s until 1991 and resumed smoking in 1997. At times, Compton smoked up to one and one-half packs of cigarettes a day.

Compton filed this duplicate claim for black lung benefits on May 24, 1995.¹ The claim was denied initially, and an administrative hearing was held. Both parties and the Director of the Office of Workers' Compensation Programs (the Director) submitted evidence at the hearing.

The ALJ first considered the x-ray evidence, which consisted of 17 chest x-rays that had been read a total of 59 times by 14 physicians. Only five of the readings were positive for pneumoconiosis. The ALJ concluded that Compton had "not established by a preponderance of chest x-ray evidence that he had pneumoconiosis."² J.A. 381.

The conflicting reports of six physicians were also submitted. Dr. Livia Cabauatan examined Compton in 1979 and concluded that he had asymptomatic chronic obstructive pulmonary disease (COPD) related to his coal dust exposure. Dr. Dominic Gaziano, who examined Compton in 1987, concluded that Compton had coal workers' pneumoconiosis and COPD. Dr. Oscar Carrillo examined Compton in 1995 and diagnosed Compton with severe obstructive pulmonary disease caused by exposure to coal dust and cigarette smoke. Dr. George Zaldivar examined Compton in 1996 and also reviewed Compton's medical records. Dr. Zaldivar determined that Compton did not have coal workers' pneumoconiosis, but rather that Compton suffered from emphysema caused by smoking and possibly a family history of asthma. Dr. James Castle did not examine Compton but reviewed his medical records and also concluded that Compton did not have coal workers' pneumoconiosis, but rather suffered from emphysema caused by smoking. Finally, Dr. Gregory Fino concluded after reviewing Compton's medical records that Compton did not have coal workers' pneumoconiosis but did have a moderate respiratory impairment due to smoking.

The ALJ credited the opinions of Drs. Gaziano and Carrillo, discredited the opinions of Drs. Fino, Zaldivar, and Castle,³ and concluded that Compton had established the existence of pneumoconiosis by physician opinion evidence. The ALJ also determined that Compton satisfied the other elements necessary to a black lung claim, and awarded him benefits. The company appealed to the BRB, which affirmed the award.

II.

In order to obtain federal black lung benefits, a claimant must prove by a preponderance of the evidence that: "(1) he has 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); see Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1195 (4th Cir. 1995); 20 C.F.R. §§ 718.201-.204 (1999). Island Creek argues that the ALJ and BRB erred in concluding that Compton satisfied the first and fourth elements of his claim.

We review an order of the BRB by "undertak[ing] an independent review of the record" to determine whether the ALJ's findings of fact were supported by substantial evidence. Dehue Coal, 65 F.3d at 1193. "Substantial evidence is more than a mere scintilla"; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). We review the legal conclusions of the BRB and the ALJ de novo. See Milburn Colliery, 138 F.3d at 528.

A.

Island Creek argues that the ALJ erred in determining that Compton established the existence of pneumoconiosis by a preponderance of the evidence because the ALJ erred in his method of weighing the evidence and in determining which physicians' opinions to credit. We address these contentions seriatim.

1.

20 C.F.R. § 718.202(a) provides that

[a] finding of the existence of pneumoconiosis may be made as follows:

(1) A chest X-ray conducted and classified in accordance with § 718.102 may form the basis for a finding of the existence of pneumoconiosis.... ....

(2) A biopsy or autopsy conducted and reported in compliance with § 718.106 may be the basis for a finding of the existence of pneumoconiosis....

(3) If the presumptions described in §§ 718.304, 718.305 or § 718.306 are applicable, it shall be presumed that the miner is or was suffering from pneumoconiosis.

(4) A determination of the existence of pneumoconiosis may also be made if a physician, exercising sound medical judgment, notwithstanding a negative X-ray, finds that the miner suffers or suffered from pneumoconiosis as defined in § 718.201. Any such finding shall be based on objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination, and medical and work histories. Such a finding shall be supported by a reasoned medical opinion.

Island Creek contends that the ALJ erred because he merely weighed the evidence within each subsection, e.g., x-rays, to determine whether a preponderance of that type of evidence established pneumoconiosis. The company asserts that the proper method is to weigh the different types of evidence together to determine whether a preponderance of all of the evidence establishes the existence of pneumoconiosis.

The ALJ did in fact evaluate the evidence within subsections (a)(1) and (a)(4) of § 718.202 to determine whether either type of evidence established pneumoconiosis, but did not weigh the X-ray evidence with the medical opinion evidence.⁴ The BRB approved of this practice. The Board ruled that as long as the evidence relevant to one subsection of § 718.202(a) supports a finding of pneumoconiosis, the rest of the evidence need not be considered.

We cannot endorse the Board's view. The statute governing the evidence required to establish a claim for black lung benefits states that "[i]n determining the validity of claims... all relevant evidence shall be considered." 30 U.S.C.A. § 923(b). The plain meaning of this statutory language is that all relevant evidence is to be considered together rather than merely within discrete subsections of § 718.202(a). See Penn Allegheny Coal Co. v. Williams, 114 F.3d 22, 24-25 (3d Cir. 1997); see also Gray v. SLC Coal Co., 176 F.3d 382, 388-89 (6th Cir. 1999) (relying in part on the "all relevant evidence" language of 30 U.S.C.A. § 923(b) to reject argument that existence of complicated pneumoconiosis could be determined by weighing evidence within discrete categories of 30 U.S.C.A.§ 921(c)(3) rather than by weighing evidence from different categories together); Lester v. Director, OWCP, 993 F.2d 1143, 1145-46 (4th Cir. 1993) (rejecting argument that the categories within 30 U.S.C.A.§ 921(c)(3) establish mutually exclusive means of proving complicated pneumoconiosis such that evidence relevant to the various categories should not be weighed together, on the basis that such a construction would be counter to the mandate in 30 U.S.C.A. § 923(b) to consider "all relevant evidence").

Further, weighing all of the relevant evidence together makes common sense. Otherwise, the existence of pneumoconiosis could be found even though the evidence as a whole clearly weighed against such a finding. For example, suppose x-ray evidence indicated that a miner had pneumoconiosis, but autopsy evidence established that the miner did not have any sort of lung disease caused by coal dust exposure. In such a situation, if each type of evidence were evaluated only within the particular subsection of § 718.202(a) to which it related, the x-ray evidence could support an award for benefits in spite of the fact that more probative evidence established that benefits were not due. See Griffith v....