Robinson v. Missouri Min. Co.

• Decision Date: 04 February 1992
• Docket Number: No. 90-1347,90-1347
• Citation: 955 F.2d 1181
• Parties: Claude ROBINSON, Petitioner, v. MISSOURI MINING COMPANY and Wausau Insurance Company; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1181

955 F.2d 1181

Claude ROBINSON, Petitioner, v. MISSOURI MINING COMPANY and Wausau Insurance Company Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents.

No. 90-1347.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 13, 1991.

Decided Feb. 4, 1992.

Bradford A. Brett, Mexico, Mo., argued, for petitioner.

Mark E. Solomons, Washington, D.C., argued (Laura Metcoff Klaus, on brief), for respondents.

Before LAY, ^* Chief Judge, MAGILL and BEAM, Circuit Judges.

BEAM, Circuit Judge.

On December 5, 1979, Claude Robinson filed a claim for black lung benefits with the Department of Labor under the Black Lung Benefits Act (Act), 30 U.S.C. §§ 901-945 (1988). After a hearing on October 5, 1984, an Administrative Law Judge denied Robinson's claim. The Benefits Review Board affirmed the ALJ's decision on February 28, 1990. Robinson appeals. We affirm.

I. BACKGROUND

A lengthy review of the evidence presented at Robinson's hearing before the ALJ is not necessary for our purposes; a short discussion of the ALJ's reasoning and the BRB's affirmance will be sufficient. Applying the standards governing eligibility for black lung benefits contained in 20 C.F.R. § 727.203, the ALJ initially found that sufficient evidence existed to invoke an interim presumption of Robinson's total disability due to pneumoconiosis (black lung). Robinson had worked as a miner for thirteen years and ventilatory studies, blood gas studies, and medical opinion raised the interim presumption under section 727.203(a)(2), (3), (4). The ALJ found that conflicting x-ray evidence failed to raise the interim presumption under section 727.203(a)(1).

Although sufficient evidence existed to raise the interim presumption, the ALJ ultimately concluded that the evidence as a whole rebutted the presumption under section 727.203(b)(2), (3), (4). The ALJ found that Robinson was able to do his usual coal mine work or comparable and gainful work, that Robinson's disability did not arise out of coal mine employment, and that the medical evidence indicated that Robinson did not have pneumoconiosis.

In reaching his final decision, the ALJ credited the opinion of one examining physician, Dr. Lloyd Hollinger, over that of another, Dr. Max Gutensohn. In Dr. Hollinger's view, Robinson was not suffering from pneumoconiosis, but rather from "chronic obstructive pulmonary disease of a very mild degree [that] can be solely related to his smoking history." Hollinger Report, Sept. 26, 1980, at 2. Dr. Gutensohn, in contrast, believed that "[i]t would appear, in as much as [Robinson] has not been exposed to any other irritant except for smoking for some periods of time, that he is disabled due to previous coal mine employment." Gutensohn Report, Sept. 10, 1984, at 2. The ALJ relied on Dr. Hollinger's opinion because it was more detailed, less tentative, and included a specific finding that Robinson could return to his work as a caterpillar operator whereas Dr. Gutensohn's opinion failed to address this issue.

Robinson appealed the ALJ's decision pro se and the BRB construed his arguments as an assertion that the ALJ's order was not supported by substantial evidence on the record as a whole. The BRB affirmed the ALJ's order, concluding that substantial evidence supported the ALJ's finding concerning rebuttal of the interim presumption under section 727.203(b)(2). In particular, the BRB held that the ALJ's decision to credit Dr. Hollinger's opinion over Dr. Gutensohn's on the issue of whether Robinson was able to work as a caterpillar operator was rational. Because rebuttal of the interim presumption under section 727.203(b)(2) was sufficient to uphold the ALJ's decision, the BRB declined to review the ALJ's other findings.

II. DISCUSSION

Our review of the BRB's order is very limited. The BRB cannot set aside the ALJ's factual findings unless the findings are not supported by substantial evidence in the record as a whole. See 30 U.S.C. § 932(a) (1988); 33 U.S.C. § 921(b)(3) (1988). If the ALJ's findings satisfy this requirement, the BRB must affirm even though it might have reached a different conclusion than the ALJ were it the fact-finder. E.g., Brown v. Director, Office of Workers' Compensation Programs, 914 F.2d 156, 158 (8th Cir.1990). In particular, the decision to credit one of two conflicting medical opinions as better documented and reasoned belongs to the ALJ as fact-finder. See Phillips v. Director, Office of Workers' Compensation Programs, 768 F.2d 982, 984 (8th Cir.1985). Our role on appeal is merely to assure that the BRB adhered to the proper standard of review. To fulfill this role, we examine the ALJ's findings under the same standard. E.g., Brown, 914 F.2d at 158.

After review of the record before the ALJ, we agree with the BRB that the ALJ's decision to credit Dr. Hollinger's opinion over Dr. Gutensohn's is supported by substantial evidence in the record as a whole and is not contrary to law. Robinson asserts that the ALJ's reliance on Dr. Hollinger is improper as a matter of law because Dr. Hollinger's diagnosis was the result of subjective opinions concerning pneumoconiosis hostile to the spirit of the Act. In particular, Robinson contends that Dr. Hollinger testified that he would never diagnose pneumoconiosis absent a positive x-ray. The BRB has held that an ALJ may discount the opinion of a physician who holds such a view because the view directly contravenes a specific provision of the Act. Nagle v. Barnes & Tucker Co., 1 Black Lung Rep. (MB) 1-961, 1-965 (Ben.Rev.Bd.1978); accord Black Diamond Coal Mining Co. v. Benefits Review Bd., 758 F.2d 1532, 1534 (11th Cir.1985). The present case, however, is distinguishable. Dr. Hollinger's exact testimony was that someone would have to have an abnormal x-ray if they were "totally impaired" due to pneumoconiosis, and merely agreed that he "would not be inclined" to diagnose pneumoconiosis absent an abnormal x-ray. Hollinger Deposition Transcript at 50-51. Furthermore, read in its full context, Dr. Hollinger's testimony was that considering Robinson's smoking history, the absence of a positive x-ray led him to conclude that Robinson's respiratory problems were the result of smoking and not pneumoconiosis. Id. at 33. On cross-examination, Dr. Hollinger expressly stated that his conclusion was based on all the medical information available to him (which included the results of ventilatory studies, arterial blood gas tests, an electrocardiogram, as well as two x-rays). Id. at 38. While Dr. Hollinger's opinion regarding Robinson was certainly based in part on the lack of a positive x-ray, it was not based solely on this. ¹ His opinion, therefore, was not based on a medical theory hostile to the Act.

Robinson further argues that the ALJ should have credited Dr. Gutensohn's opinion because it was based on more recent information. Dr. Hollinger's opinion was based on a personal examination and the results of tests performed in 1980, including negative x-rays. Dr. Gutensohn's opinion was based on a personal examination and the results of tests performed in 1984, including a positive x-ray (which was the only x-ray taken since 1980). As pneumoconiosis is a progressive disease, the ALJ certainly should consider the temporal proximity of conflicting test results in determining which of two different medical opinions to credit. See Mullins Coal Co. v. Director, Office of Workers' Compensation Programs, 484 U.S. 135, 151-52, 108 S.Ct. 427, 436, 98 L.Ed.2d 450 (1987). Temporal proximity, however, is simply a factor to be considered, not a controlling one. Viewing the record as a whole, we conclude that substantial evidence exists to support the ALJ's decision to credit Dr. Hollinger's opinion that Robinson's respiratory problems were the result of his smoking history and not his exposure to coal dust, despite the comparative age of the information upon which the opinion was based.

Robinson also challenges the ALJ's decision to credit the portion of Dr. Hollinger's opinion concerning Robinson's ability to return to work as a caterpillar operator. Robinson emphasizes that Dr. Hollinger did not ask Robinson about the specifics of his job, which included cleaning mud from the caterpillar's tracks at the end of the shift. Robinson introduced evidence that this was the most strenuous part of the job. See Ray Williams Deposition Transcript at 10. Dr. Hollinger, however, did testify that he was familiar with the general operation of heavy machinery, including caterpillars, and Dr. Gutensohn expressed no opinion whatsoever on the issue. Furthermore, statements which Robinson made during an interview with a representative of his former employer implied that he retired mainly because of his age, 65, and not his respiratory problems. Employer's Exhibit 3, at 4, 8. Given the high degree of deference that we must accord the ALJ's findings of fact, we are unable to hold that the ALJ's decision to credit this portion of Dr. Hollinger's testimony is not supported by substantial evidence.

III. CONCLUSION

We conclude that the ALJ's decision to credit Dr. Hollinger's opinion over Dr. Gutensohn's is supported by substantial evidence in the record as a whole. ² Because Dr. Hollinger's opinion that Robinson is able to return to work as a caterpillar operator is sufficient to rebut the interim presumption of pneumoconiosis and to uphold the ALJ's denial of Robinson's claim for black lung benefits, we affirm the BRB's order.

LAY, Chief Judge, dissenting.

I dissent. The record clearly demonstrates that the denial of black lung benefits by the Director is arbitrary and unreasonable. I submit that the ALJ's denial of benefits is devoid of any substantial evidence and cannot be sustained on the record as a whole.

Based upon competent medical testimony, the ALJ found that the claimant was eligible for the interim presumption of total disability due to pneumoconiosis...