Smith v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor

• Decision Date: 05 January 1988
• Docket Number: No. 87-1805,87-1805
• Parties: Juanita V. SMITH, Widow of William F. Smith, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Parke Coal Company, and U.S. Fidelity & Guaranty Company, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1053

843 F.2d 1053

Juanita V. SMITH, Widow of William F. Smith, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Parke Coal Company and U.S. Fidelity & Guaranty Company, Respondents.

No. 87-1805.

United States Court of Appeals Seventh Circuit.

Submitted Jan. 5, 1988. ^*

Decided April 11, 1988.

Rehearing Denied July 20, 1988.

Stephen J. Peters, Stewart Irwin Gilliom Meyer & Guthrie, William J. Hamilton, Indianapolis, Ind., for petitioner.

Daniel F. Hewins, Hewins & Hewins, Evansville, Ind., for respondents.

Before CUDAHY, POSNER and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

This is a petition for review of an order of the Benefits Review Board of the United States Department of Labor (the "Board"). The Board reversed an award by an administrative law judge (the "ALJ") granting benefits to the petitioner ¹ under the Black Lung Benefits Act, 30 U.S.C. Secs. 901 et seq. (the "Act"). The decision of the Board must be reversed.

I.

We turn first to the decision of the ALJ. As determined by the ALJ, claimant Juanita V. Smith is the widow of William F. Smith. William Smith worked in various coal mines from 1941 to 1971. Smith last worked at respondent Parke Coal Company, from 1966 to 1971. He retired in 1971. On February 20, 1976, Smith died at the age of 62.

Based on these facts, claimant Smith was the beneficiary of a presumption that she was entitled to the payment of benefits under the Act. See 30 U.S.C. Sec. 921(c)(5). ² To defeat entitlement to benefits, that presumption must be rebutted by a showing (1) that the miner did not suffer from pneumoconiosis; ³ or (2) that the miner was not totally or partially disabled; or (3) that any partial or total disability which the miner may have suffered was not due to pneumoconiosis. See id.; Bishop v. Peabody Coal Co., 690 F.2d 131, 134 (7th Cir.1982). Before the ALJ, Parke Coal attempted to rebut the presumption by a showing under alternative (3)--that any partial or total disability which the miner may have suffered was not due to pneumoconiosis. To this end, Parke Coal introduced the deposition of Kenneth Wilhelmus, M.D.

Dr. Wilhelmus examined only Smith's medical and employment records. He never examined Smith alive or dead. Dr. Wilhelmus acknowledged that Smith was disabled and that he had pneumoconiosis. According to Dr. Wilhelmus, however, Smith's disability was due to his heart problems, not pneumoconiosis:

After examining all of the protocol, I came to an opinion that Mr. Smith was ill, but his disability and illness was due to his heart and cardiovascular system, and no place in the record did I find any mention of pneumoconiosis, and various X-rays and reports of X-rays, histories, hospital summaries, both locally and at Indiana University, but except in one X-ray interpretation by Dr. Charles D. Smith, who is a qualified radiologist and a B reader, ⁴ and he stated that in his opinion the X-ray showed Q-type opacities, small, rounded, and profusion of 1/0 in all six zones of the chest. This profusion is the smallest possible and still have a diagnosis of pneumoconiosis. I do not, in my opinion, think that his disability or illness was due to pneumoconiosis, although it's on his chest X-ray film.

....

In my opinion, the extent of the pneumoconiosis would not prevent him from doing his usual, customary job description at the above-ground coal mine where he worked. His disability was due to heart condition.

....

I would be of the opinion that he would be asymptomatic had he had a normal heart and cardiovascular system because of the minuteness of the pneumoconiosis.

For three reasons, the ALJ discounted Dr. Wilhelmus' opinion and, thus, found that Parke Coal failed to rebut Juanita Smith's presumed entitlement to benefits. First, Dr. Wilhelmus had never examined the decedent, undertaking only a review of medical and employment records. Second, Dr. Wilhelmus did not know of Smith's history of breathing problems. Three witnesses, Juanita Smith, the decedent's son and a neighbor testified to Smith's respiratory problems: shortness of breath upon exertion, coughing spasms and sleeping difficulties. ⁵ All of these symptoms are consistent with pneumoconiosis. The ALJ, before whom the witnesses testified, found their accounts credible.

The third reason the ALJ discounted Dr. Wilhelmus' analysis was because that analysis was, in part, based upon incorrect facts. Questioned about Smith's respiratory problems, Dr. Wilhelmus responded, "He had respiratory problems from tobacco abuse." Dr. Wilhelmus stated that Smith's tobacco abuse consisted of smoking two to three packs of cigarettes per day for thirty years. Actually, according to the medical report Dr. Wilhelmus reviewed, Smith had smoked, variously, cigarettes, cigars, and pipes for thirty years. ⁶ Nowhere in the records reviewed by Dr. Wilhelmus is there an indication that Smith had smoked two or three packs of cigarettes per day. In fact, the records did not indicate the amount of tobacco Smith used daily. Confronted with this discrepancy, Dr. Wilhelmus stated, "I've just completed reviewing twelve other [miners' case] histories and one of them right before I read this had two or three packs. That's where I got that."

In conjunction with the Wilhelmus review, Parke Coal relied upon Smith's death certificate. That certificate listed the causes of death as cardiopulmonary arrest and myocardial infarction. The certificate did not mention pneumoconiosis. Having found the analysis of Dr. Wilhelmus flawed, the ALJ determined that Parke Coal, relying only on the death certificate, had not rebutted claimant Smith's statutory presumption.

We turn next to the decision of the Board. The Board reversed the ALJ, holding that the Wilhelmus deposition did rebut claimant Smith's presumption of entitlement to benefits. The Board disputed the ALJ's evaluation of the Wilhelmus deposition on three points. First, although acknowledging that an ALJ may accord less weight to a nonexamining physician, the Board determined that the ALJ did not give reasons for thus weighting the evidence. Second, the Board ruled that lay testimony alone is insufficient to outweigh otherwise uncontradicted and countervailing medical testimony in rebutting the statutory presumption. Third, while not specifically acknowledging Dr. Wilhelmus' error about Smith's smoking history, the Board noted that Dr. Wilhelmus found minimal problems in Smith's respiratory system.

II.

Our review of these conflicting decisions focuses upon the determination of the ALJ:

It is whether the court of appeals believes that the administrative law judge's decision was supported by substantial evidence; if it was, then the Benefits Review Board's decision reversing the administrative law judge must itself be reversed, even if that decision could also be said to be supported by substantial evidence.

Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 589 (7th Cir.1985) (citations omitted). While substantial evidence may support decisions both granting and denying benefits in the same case, see id.; Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797, 802 (7th Cir.1977), this court has decided that the determinative decision is that of the ALJ, which must be supported by substantial evidence. See Prewitt, supra; Peabody Coal, supra; but see Prewitt, 755 F.2d at 593-94 (Cudahy, J., concurring in the result) (appellate court's primary review should be of the Board's decision).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The substantial evidence test is not as difficult to pass as a preponderance of the evidence burden. Peabody Coal, 560 F.2d at 802. Thus, a reviewing body may not set aside an inference merely because it finds the opposite conclusion more reasonable or because it questions the factual basis. ⁷ Id.

Central to this court's review is the role of the ALJ as factfinder. The "process of crediting and discrediting the evidence, and drawing inferences from the credited evidence, is properly within the fact finder's competence." Id. This is of particular importance where, as here, the evaluation of a medical opinion is in dispute. "The evaluation of the witnesses' credibility, including that of medical witnesses, is for the trier of fact. Moreover, the trier is not bound to accept the opinion or theory of any given medical officer, but may weigh the medical evidence and draw his own inferences." Id. (citations omitted). " 'We have long held that in black-lung cases the process of weighing conflicting medical evidence and drawing inferences therefrom properly lies within the authority of the ALJ.' " Arch Mineral Corp. v. Director, 798 F.2d 215, 221 (7th Cir.1986) (quoting Peabody Coal v. Director, 778 F.2d 358, 362 (7th Cir.1985)).

[T]he mere fact that an opinion is asserted to be based upon medical studies cannot by itself establish as a matter of law that it is documented and reasoned. Rather, that determination requires the factfinder to examine the validity of the reasoning of a medical opinion in light of the studies conducted and the objective indications upon which the medical opinion or conclusion is based.

Director v. Rowe, 710 F.2d 251, 255 (6th Cir.1983) (footnote omitted), cited in Peabody Coal v. Director, 778 F.2d at 363.

Under these standards, it is clear that the ALJ's decision was supported by substantial evidence. Beyond the presumption set out at section 921(c)(5), the ALJ was faced with x-ray evidence of pneumoconiosis. Consistent with these factors, the ALJ heard three witnesses who testified credibly and consistently about decedent Smith's coughing spasms, shortness of breath upon exertion and sleeping difficulties. In opposition, the ALJ considered the deposition of Dr. Wilhelmus and the death certificate of ...