Underwood v. Elkay Min., Inc.

Citation105 F.3d 946
Decision Date04 February 1997
Docket NumberNo. 95-2717,95-2717
PartiesElmer UNDERWOOD, Petitioner, v. ELKAY MINING, INCORPORATED; Hobet Mining Company; West Virginia C.W.P. Fund; Director, Office of Workers' Compensation Programs, United States Department of Labor, Respondents, and W & G Construction Company; Whitesville A & S Coal Company, Parties in Interest--Employers.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Roger Daniel Forman, Forman & Crane, L.C., Charleston, West Virginia, for Petitioner. Konstantine Keian Weld, Assistant Attorney General, Charleston, West Virginia; Douglas A. Smoot, Jackson & Kelly, Charleston, West Virginia, for Respondents. ON BRIEF: Darrell V. McGraw, Jr., Attorney General, Charleston, West Virginia, for Respondent Fund.

Before NIEMEYER and MOTZ, Circuit Judges, and DOUMAR, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MOTZ and Senior Judge DOUMAR joined.

OPINION

NIEMEYER, Circuit Judge:

This case presents the question of whether an administrative law judge ("ALJ"), conducting a hearing on a claim for benefits under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45, committed reversible error by admitting cumulative evidence offered by the coal mine operator. Because we conclude that the ALJ's decision to allow the operator's evidence did not contravene standards established by the Administrative Procedure Act, 5 U.S.C. § 556(d), for the admission of evidence and did not constitute an abuse of discretion, we affirm.

I

Elmer Underwood labored as a coal miner for 40 years and retired from Elkay Mining, Incorporated, as a supervisor of 38 men. On his claim for black lung benefits Underwood established clearly that he suffers from a pulmonary problem, but doctors presented differing opinions as to whether it was pneumoconiosis, whether it originated from Underwood's 25-year pack-a-day smoking habit or from coal mining, and the extent of his disability. In support of his claim, Underwood submitted evidence from the West Virginia Occupational Pneumoconiosis Board (which had awarded him partial disability), a report with various tests from one doctor and nine x-ray readings by three different doctors. The respondents, in contrast, submitted a radiologist's deposition, reports with various tests from five other doctors, and multiple x-ray readings by several different doctors. Although some of the x-rays examined showed disease, the vast majority of the x-rays, most of which the coal mine operator had introduced, were negative. Some of the pulmonary function studies had qualifying values, but all of the arterial blood gas studies failed to satisfy the regulatory minimum standards for disability.

In his opinion denying benefits, the ALJ summarized each of the medical opinions and evaluated each based not only on its contribution to the quantity of the evidence presented, but primarily on the opinion's quality. The ALJ found various problems with the opinions of Underwood's doctor and credited the doctors whose opinions were "more consistent with the overwhelmingly negative x-ray evidence, the reversible nature of at least some of the pulmonary function studies, and the nonqualifying arterial blood gas study results." The ALJ concluded that the reports of Underwood's doctors are "outweighed in probative effect" by the opinions of Elkay Mining's doctors.

The Benefits Review Board affirmed the ALJ's denial of benefits, and this appeal followed.

II

Underwood's principal argument on appeal is that the ALJ violated the Administrative Procedure Act, 5 U.S.C. § 556(d), by admitting cumulative or repetitive evidence submitted by Elkay Mining. Underwood asserts that Elkay Mining's submission of 18 additional evidentiary items relating to various medical issues after the 89th exhibit on its side constituted an "obscene overdevelopment" of the case. Because of his limited financial resources, Underwood maintains that the failure to exclude such evidence "allows the employer to buy more evidence and win." He contends that with the admission of this cumulative evidence, the ALJ simply "counted heads" in violation of Adkins v. Director, OWCP, 958 F.2d 49, 52 (4th Cir.1992) (noting that merely "counting heads" is a "hollow" process). He concludes that if the ALJ had properly applied the Administrative Procedure Act's prohibition against unduly repetitious evidence, he would have succeeded in demonstrating entitlement to benefits.

The issue raised presents a legal question about the proper standard for the admission of evidence in hearings before the ALJ under the Black Lung Benefits Act, which we review de novo, see Dehue Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir.1995); Walker v. Director, OWCP, 927 F.2d 181, 183 (4th Cir.1991), and a question about the proper application of that standard in allowing allegedly cumulative evidence into the record, which we review for abuse of discretion, see Hinkle v. City of Clarksburg, 81 F.3d 416, 424 (4th Cir.1996); Hottle v. Beech Aircraft Corp., 47 F.3d 106, 111 (4th Cir.1995).

In the larger context, we review the decisions of the Benefits Review Board for errors of law and to assure that the Board adhered to its statutory authority in reviewing the ALJ's factual determinations. 33 U.S.C. § 921(c); see also Dehue Coal Co., 65 F.3d at 1193. The Board must affirm the ALJ's decision if it is "supported by substantial evidence on the record considered as a whole." Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 467, 88 S.Ct. 1140, 1145-46, 20 L.Ed.2d 30 (1968); 33 U.S.C. § 921(b)(3). An ALJ hearing a claim under the Black Lung Benefits Act is empowered to make credibility determinations and to weigh the evidence presented. See Zbosnik v. Badger Coal Co., 759 F.2d 1187, 1190 (4th Cir.1985); Peabody Coal Co. v. Benefits Review Board, 560 F.2d 797, 802 (7th Cir.1977). Moreover, as trier of fact, the ALJ is not bound to accept the opinion or theory of any medical expert. See White v. Newport News Shipbuilding & Dry Dock Co., 633 F.2d 1070, 1075 (4th Cir.1980). He must evaluate the evidence, weigh it, and draw his own conclusions.

Hearings conducted under the Black Lung Benefits Act are governed by the Administrative Procedure Act. See 30 U.S.C. § 932(a) (incorporating 33 U.S.C. § 919(d), in turn incorporating 5 U.S.C. § 554 (the Administrative Procedure Act)); see also 20 C.F.R. § 725.452(a); Bethlehem Mines Corp. v. Henderson, 939 F.2d 143, 148 (4th Cir.1991). And the applicable provision of the Administrative Procedure Act governing the admission of evidence provides:

Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence.

5 U.S.C. § 556(d).

Elkay Mining contends that ALJ's are required to admit all evidence, subject to objection, giving it weight where appropriate. Elkay Mining relies on the Benefits Review Board's statement holding that "the administrative law judge is required, subject to the objection by any party, to admit into the record all evidence that has been timely developed and exchanged in accordance with 20 C.F.R. § 725.456." Cochran v. Consolidation Coal Co., 12 BLR 1-136, 1-138 (Ben.Rev.Bd.1989). Elkay Mining also points to the language of the Black Lung Benefits Act which provides that "[i]n determining the validity of claims under this part, all relevant evidence shall be considered...." 30 U.S.C. § 923(b) (emphasis added). Underwood, on the other hand, argues that the Administrative Procedure Act nevertheless requires the exclusion of "irrelevant, immaterial, or unduly repetitious" evidence. 5 U.S.C. § 556(d). While these contentions of the parties appear, at first blush, to be in conflict, a closer look demonstrates that they are not entirely inconsistent.

We begin with the statutory command that the validity of claims for black lung benefits shall be based on consideration of "all relevant evidence," 30 U.S.C. § 923(b), and with the recognition that black lung benefits proceedings are nonjury trials conducted before ALJ's who are charged with both conducting the hearing and making findings of fact. In ruling on evidence, an ALJ sees both excludable and nonexcludable evidence, but in making a decision, he considers only admitted evidence. Because the ALJ is presumably competent to disregard that evidence which should be excluded or to discount that evidence which has lesser probative value, it makes little sense, as a practical matter, for a judge in that position to apply strict exclusionary evidentiary rules. As we noted in Multi-Medical Convalescent & Nursing Center of Towson v. NLRB, 550 F.2d 974, 977 (4th Cir.1977) (footnote omitted):

It has long been settled that an appellate court will not reverse a judgment in a nonjury case because of the admission of incompetent evidence, unless all of the competent evidence is insufficient to support the judgment or unless it affirmatively appears that the incompetent evidence induced the court to make an essential finding which would not otherwise have been made.

Applying that same rule to administrative agencies, we concluded bluntly, "Thus, we strongly advise administrative law judges: if in doubt, let it in." Id. at 978.

The Benefits Review Board has applied our decision in Multi-Medical and reached what might appear to be an almost absolute rule that the ALJ is required to admit all evidence that is timely developed and exchanged. See Cochran, 12 BLR at 1-138. But the Board in Cochran recognized the statutory limitations of relevancy, instructing at most that where relevance is "questionable," the trier of fact would be better advised to admit the evidence. See id.

We believe that the Administrative Procedure Act's command that ALJ's should exclude "irrelevant, immaterial, or unduly...

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