The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1068
SEWELL COAL COMPANY,
Petitioner,
v.
WILLIAM O. DEMPSEY; DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAMS,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(09-0151-BLA)
Argued: March 25, 2011 Decided: May 19, 2011
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded with
instructions by unpublished per curiam opinion.
ARGUED: Douglas Allan Smoot, JACKSON KELLY, PLLC, Charleston,
West Virginia, for Petitioner. John C. Eller, WASHINGTON AND
LEE UNIVERSITY SCHOOL OF LAW, Lexington, Virginia; Barry H.
Joyner, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Respondents. ON BRIEF: Kathy L. Snyder, JACKSON KELLY, PLLC,
Charleston, West Virginia, for Petitioner. Timothy C.
MacDonnell, L. Lucy Brandon, WASHINGTON AND LEE UNIVERSITY
SCHOOL OF LAW, Black Lung Legal Clinic, Lexington, Virginia, for
Respondent Dempsey. M. Patricia Smith, Solicitor of Labor, Rae
Ellen James, Associate Solicitor, Patricia M. Nece, Counsel for
Appellate Litigation, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Federal Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In this petition for review, Sewell Coal Company contends,
among other things, that the Benefits Review Board (“the Board”)
erred in affirming the decisions of the Administrative Law Judge
(“the ALJ”) who, after finding respondent William Dempsey’s
second claim for benefits timely filed, awarded Black Lung
benefits. For the reasons set forth below, we affirm the
Board’s Decision and Order of November 25, 2009 as to the
timeliness of Dempsey’s claim. However, because the ALJ failed
adequately to explain his reasoning in evaluating opinion
evidence, we vacate the November 25, 2009 and March 31, 2005
Decisions and Orders of the Board as to the existence of
pneumoconiosis and total disability, and remand for further
proceedings.
I.
This case comes before the Court for the second time. As
we previously discussed:
William Dempsey worked in the coal mine industry
for approximately twenty-three years. He worked
specifically for Sewell Coal for more than eleven
years, most recently as a belt repairman. After
leaving Sewell Coal, Dempsey worked for Dale and Tina
Coal Company for approximately three months and for DC
& M Coal Company for nearly five months, before
retiring from the coal mine industry in 1989. Dempsey
filed his first claim for benefits under the [Black
Lung Benefits Act, 30 U.S.C. §§ 901 et seq, (“the
BLBA”)] on April 27, 1989. That claim was denied on
3
August 15, 1989, because the evidence did not then
establish that Dempsey was totally disabled by
pneumoconiosis.
* * *
. . . Dempsey filed his second claim for Benefits
under the [BLBA] on February 8, 2001. The district
director awarded benefits under Dempsey’s claim on May
29, 2002, and an [ALJ] subsequently reviewed the
claim, finding Dempsey totally disabled substantially
due to pneumoconiosis. Having also found the claim
timely after concluding that the statute of
limitations did not apply to subsequent claims for
benefits, the ALJ issued a decision awarding benefits.
The [Board] vacated the ALJ’s decision awarding
benefits and remanded for further consideration on
evidentiary issues. The ALJ again awarded benefits
and the Board affirmed. Sewell Coal Company . . . the
mine operator responsible for paying benefits, [then]
petition[ed] for review of the Board’s Order.
Sewell Coal Co. v. Director, O.W.C.P., 523 F.3d 257, 258 (4th
Cir. 2008) (internal citation and footnote omitted). After
vacating the ALJ’s timeliness determination, id. at 259, we
remanded the case for further proceedings, but without
adjudicating the merits as to the finding of pneumoconiosis.
Id. On remand, the ALJ again awarded benefits to Dempsey.
Thereafter, Sewell appealed to the Board, which affirmed the
ALJ’s decision, two votes to one.
Sewell Coal now brings the instant petition, arguing the
ALJ incorrectly determined that Dempsey’s 2001 application for
4
benefits was timely filed and failed to explain why he credited
certain expert opinions over others. 1
II.
“When we review a claim for benefits under the BLBA, ‘[w]e
undertake an independent review of the record, as in the place
of the Board, to determine whether the ALJ’s factual findings
are based on substantial evidence in the record.’” Sewell Coal
Co., 523 F.3d at 259 (quoting Toler v. E. Associated Coal Co.,
43 F.3d 109, 114 (4th Cir. 1995)). Substantial evidence “is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion”; it is “more than a mere
scintilla.” Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528
(4th Cir. 1998) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). “In determining whether substantial evidence
1
Sewell Coal also raises a host of evidentiary issues,
including that the ALJ erred by: (i) finding Dempsey showed good
cause to submit late evidence; (ii) improperly denying Sewell
Coal’s rights to due process and a fair hearing by requiring it
to disclose prematurely its affirmative case and by refusing to
allow it to rely on the medical reports of its choice; (iii)
failing to find various exhibits admissible under the “good
cause” exception of the amended regulations; (iv) excluding
Sewell Coal’s rebuttal evidence and certain treatment records.
For the reasons set forth in the Board’s Decisions and Orders,
we find that the ALJ did not so err. We therefore confine our
discussion to Sewell Coal’s arguments concerning the timeliness
of Dempsey’s second claim for benefits and the ALJ’s evaluation
of opinion evidence.
5
supports the ALJ’s factual determinations, we must first address
whether all of the relevant evidence has been analyzed and
whether the ALJ has sufficiently explained his rationale in
crediting certain evidence.” Id. at 528 (citing Sterling
Smokeless Coal Co. v. Akers, 131 F.3d 438, 439 (4th Cir. 1997)).
III.
A.
We first consider whether Dempsey timely filed his second
claim for benefits on February 8, 2001.
A letter submitted to the West Virginia State Board of
Rehabilitation in July 1989 by Dr. J. David Brown, Dempsey’s
treating physician, reflects that Dr. Brown informed Dempsey of
his pneumoconiosis diagnosis in February of that year. 2 On
October 17, 1989, Dr. Brown sent a follow-up letter to the Board
indicating that, during Dempsey’s August 29, 1989 office visit,
Dr. Brown told Dempsey “that I felt he was totally and
2
While it is true that Dr. Brown’s July 1989 letter
indicates he “advised [Dempsey] to stop working in coal mines
due to his diagnosis of COPD due to pneumoconiosis,” it does not
indicate that Dempsey was totally disabled as a result of
pneumoconiosis. J.A. 57. In any event, Sewell Coal concedes
that “Brown’s first letter is insufficient by itself to render
the claim untimely. . . .” Br. for Petitioner at 20; see
Consolidation Coal Co. v. Williams, 453 F.3d 609, 616-18 (4th
Cir. 2006).
6
permanently disabled.” J.A. 60. Sewell Coal contends 3 that
these letters, considered together, establish that Dr. Brown
communicated to Dempsey that he was totally disabled due to
pneumoconiosis in 1989. Thus, Sewell Coal’s argument goes,
because Dempsey did not file his second claim before 1992, he
failed to comply with the three-year limitations period and his
claim should be dismissed as untimely. We disagree.
20 C.F.R. § 725.308(a) provides that “[a] claim for
benefits . . . shall be filed within three years after a medical
determination of total disability due to pneumoconiosis which
has been communicated to the miner or a person responsible for
the care of the miner.” All claims are presumed timely, absent
evidence to the contrary. 20 C.F.R. § 725.308(c). Furthermore,
as Sewell Coal acknowledges, we have held a finding that a
claimant is not totally disabled due to pneumoconiosis in a
prior claim renders any earlier medical determination to the
contrary insufficient to trigger the statute of limitations.
See Consolidation Coal Co. v. Williams, 453 F.3d 609, 618 (4th
3
At argument, Sewell Coal appeared to argue that Dempsey
had been informed that he was disabled due to pneumoconiosis in
1989. At our request, Dempsey filed a supplemental letter
brief, which indicates that while Dempsey may have been informed
that he suffered from pneumoconiosis, there was no conveyance of
the fact that he was totally disabled due to that condition.
See No. 10-1068, Doc. # 45 at 2; see also 20 C.F.R. § 718.204
(defining “total disability”).
7
Cir. 2006) (“[A] medical determination later deemed to be a
misdiagnosis of pneumoconiosis by virtue of a superseding denial
of benefits cannot trigger the statute of limitations for
subsequent claims.”).
Here, Dr. Brown’s July 1989 letter was followed by the
denial of Dempsey’s 1988 black lung claim, which, under
Williams, rendered Dr. Brown’s February 1989 pneumoconiosis
diagnosis a misdiagnosis. See 453 F.3d at 616. Moreover, even
if we were to consider the first letter, it fails to specify
which of the myriad conditions listed by Dr. Brown caused
Dempsey’s disability. See J.A. 56-58 (explaining Dempsey “is
totally and permanently disabled from any type of gainful
employment due to his diagnoses stated above,” which apparently
included B.P.H. with secondary acute prostatitis and intercostal
neuritis and radiculitits) (emphasis added).
Consideration of the second letter does not render
Dempsey’s second claim for benefits untimely. As the Board
reasoned:
In weighing [Dr. Brown’s letters], the administrative
law judge permissibly found that none of Dr. Brown’s
statements established that Dr. Brown specifically
communicated to claimant that he was totally disabled
due [to] pneumoconiosis. . . .
As noted by the administrative law judge, although Dr.
Brown wrote, in the first part of his October 1989
letter, that he had informed claimant that he was
totally disabled, the doctor “did not indicate the
cause of the disability was due to pneumoconiosis.”
8
Moreover, the administrative law judge reasonably
found it was unclear from Dr. Brown’s second statement
in the October 1989 letter whether he had communicated
to claimant his “feeling” that claimant was totally
disabled as a result of severe shortness of breath and
COPD.
J.A. 708-09 (internal citations omitted).
Simply put, we see no reason to disagree with the Board’s
analysis. Because Dr. Brown’s letters fail to establish that
Dempsey was informed that he was disabled due to pneumoconiosis,
Sewell Coal has not rebutted the presumption that Dempsey’s
claim was timely filed.
B.
Sewell Coal contends further that although Drs. Joseph J.
Renn III, Robert A.C. Cohen, and Donald L. Rasmussen each
reviewed excluded evidence, the ALJ engaged in a prohibited
selective analysis of opinion evidence by discrediting Dr.
Renn’s assessment while finding the opinions of Drs. Cohen and
Rasmussen well-reasoned. 4 In Sewell Coal’s view, “[i]n lieu of
rational, detailed explanation, [the ALJ] simply parroted the
doctors’ findings in his decision without discussing how or why
the determinations of those doctors are more convincing than
4
Sewell Coal also argues that the ALJ failed to explain why
he credited Dr. Dominic Gaziano’s opinion and failed to consider
Dr. John A. Bellotte’s assessment. We have reviewed the record
and, for the reasons stated by the Board in its June 28, 2004
Decision, find no error by the ALJ.
9
[those of] the other experts.” Br. for Petitioner at 43. In
other words, Sewell Coal contends the ALJ failed adequately to
explain his reasoning as required by the Administrative
Procedure Act, 5 U.S.C. § 557(c)(3)(A) (“the APA”).
With respect to Sewell Coal’s argument that the Rasmussen
opinion should be discredited because Dr. Rasmussen considered
excluded evidence, there is substantial evidence in the record
to support the ALJ’s finding that Dr. Rasmussen did not rely on
the inadmissible evidence in forming his opinion. The ALJ
summarized the evidence used by Dr. Rasmussen and concluded that
while he performed an inadmissible, independent review of an x-
ray, he in fact based his medical opinion on the interpretation
of that x-ray by Dr. Manu N. Patel – an interpretation that was
admitted into evidence. We find no error in this determination
by the ALJ.
We cannot say the same, however, for the ALJ’s evaluation
of the expert opinions of Drs. Cohen and Renn, which fails to
provide adequate explanation for his conclusions. See 5 U.S.C.
§ 557(c)(3)(A); see also Barren Creek Coal Co. v. Witmer, 111
F.3d 352, 354 (3d Cir. 1997) (“The absence of explanation in
certain portions of the ALJ’s Decision and Order renders
meaningful review impossible by this court, as we are unable to
determine the analytic process behind the result.”). As
correctly explained in the Board dissent:
10
The evidentiary limitations of Section 725.414
were intended to level the playing field between
operators and claimants and to ensure fairer and more
equitable evaluations of black lung claims. The
regulations further guard against the consideration of
excess medical evidence by providing that medical
reports be based only on admissible evidence. As the
regulations are silent concerning how an
administrative law judge should evaluate a medical
report which contains references to evidence that has
been excluded under the limitations, the Board has
held that the disposition of this issue is a matter
within the discretion of the administrative law judge.
In exercising this discretion, however, the
administrative law judge must reconcile his
obligations under Section 725.414(a)(2)(i)[ and]
(a)(3)(i), with his statutory obligation to consider
all of the relevant and material evidence bearing upon
the existence of pneumoconiosis. Because the
administrative law judge focused on the number of
inadmissible exhibits Drs. Renn and Cohen had each
reviewed, without considering what effect, if any, the
inadmissible evidence had on the physicians’ opinions,
I would hold that the administrative law judge failed
to sufficiently analyze the medical opinion evidence
or explain his conclusion that Dr. Cohen’s opinion is
entitled to greater weight than that of Dr. Renn.
J.A. 676-77 (internal citations omitted).
Tasked with evaluating conflicting medical opinions from
two doctors who reviewed excluded evidence, the ALJ discredited
Dr. Renn’s opinion in favor of Dr. Cohen’s. 5 In so doing, the
5
Sewell Coal additionally contends that the ALJ
mischaracterized Dr. Renn’s opinion by noting “Renn concluded
that Claimant does not have coal workers’ pneumoconiosis because
the chest x-rays revealed irregular opacities and there were no
opacities in the upper lung zones. . . . every physician [who]
noted the location of the opacities on their x-ray
interpretations found opacities in all six lung zones.” Brief
for Petitioner at 27 (quoting J.A. 660) (added emphasis
omitted). The ALJ’s statement is misleading, if not erroneous.
(Continued)
11
ALJ focused on the quantity of excluded evidence each doctor
reviewed, rather than on the extent to which each opinion relied
on the excluded materials. To allow an ALJ to discredit one
opinion and to credit another based on the percentage of
excluded evidence considered by each doctor would, at bottom, be
to allow nothing more than a “headcount” of evidence. And of
course, ALJs are not permitted to decide a disputed issue of
medical fact by a headcount. See Adkins v. Dir., O.W.C.P., 958
F.2d 49, 52 (4th Cir. 1992); see also Stalcup v. Peabody Coal
Co., 477 F.3d 482, 484 (7th Cir. 2007) (“[W]hen an ALJ is faced
with conflicting evidence from medical experts, he cannot avoid
the scientific controversy by basing his decision on which side
has more medical opinions in its favor. This unreasoned
approach, which amounts to nothing more than a mechanical nose
In his first opinion, the ALJ stated “Gaziano is the only
physician who found opacities in the lower four lung zones on
one x-ray, but he also found opacities in six lung zones on
another x-ray.” J.A. 556 (emphasis added). Hence, although all
the x-ray evidence did not note opacities in six lung zones, the
ALJ’s observation that all physicians who noted opacities found
opacities in all six lung zones is not entirely inaccurate.
But, drawing on this misleading statement, the ALJ erred by
finding “that Dr. Renn’s opinion [that there were no opacities
in the upper lung zones] is not reasoned because it is not based
on the chest x-ray evidence in the record.” J.A. 660. After
all, one of Gaziano’s x-rays does suggest the upper lung zones
were free from opacities. See J.A. 53. The ALJ therefore
should not rely on his statement concerning the number of
physicians who found opacities on remand.
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count of witnesses, would promote a quantity-over-quality
approach to expert retention, requiring parties to engage in a
race to hire experts to insure victory.”) (internal quotation
and citations omitted).
When an ALJ, in weighing evidence, merely tallies the
quantity of excluded exhibits opposing experts reviewed, just as
when he counts the number of experts on a given side of a
medical dispute, the ALJ fails to consider the merits of the
medical evidence before him. We cannot tell from the ALJ’s
decision how, if at all, the excluded evidence affected the
opinions of either Dr. Renn or Dr. Cohen. Moreover, setting
aside the CT scan interpretations reviewed by Dr. Cohen, it is
clear from the ALJ’s decision that both physicians reviewed the
same number of admissible x-rays. But the ALJ failed to give a
reasoned explanation of how all this evidence affected the
respective medical opinions.
The ALJ thus committed reversible error in failing to
“determine whether either physician actually relied upon, rather
than merely reviewed, evidence which is not in the record.”
J.A. 677. Whether or not Dr. Cohen’s or Dr. Renn’s opinion
finds support in admitted evidence — a question we reserve for
the ALJ — the ALJ failed to provide sufficient explanation for
his acceptance of Dr. Cohen’s opinion and the rejection of Dr.
13
Renn’s. 6 Because this error affected not only the ALJ’s finding
as to the existence of pneumoconiosis but also as to the
existence of total disability, we vacate both conclusions.
Having agreed with the Board’s dissent, we now adopt, in
part, its suggested remand instructions. On remand, the ALJ
should reconsider the opinions of Drs. Renn and Cohen and
determine whether their opinions are based in any material part
on excluded evidence. If the ALJ determines an opinion has
improperly relied on evidence outside the record, he may
consider whether to redact the excluded materials, ask the
physician to submit a new report, evaluate the extent of a
6
The ALJ’s failure to explain why he credited certain
evidence extended beyond his treatment of Drs. Renn and Cohen.
Having reviewed the record, we find the ALJ failed adequately to
explain why he found the opinion of Dr. Mark Wantz to be well-
reasoned. See, e.g., Hicks, 138 F.3d at 532 n.9 (“In weighing
opinions, the ALJ is called upon to consider their quality,
taking into account, among other things, the opinions’ reasoning
and detail of analysis.”) (citation and internal quotations
omitted). Furthermore, in analyzing the opinions of Drs. Jerome
Wiot, Michael Alexander, and Patel, the ALJ appears incorrectly
to have placed controlling weight on which viewpoint, Dempsey’s
or Sewell Coal’s, found more supporters. Moreover, because Dr.
Wiot, like Drs. Alexander and Patel, is a dually qualified
physician, the ALJ’s conclusory statement that dually qualified
physicians’ opinions are entitled to more weight fails to
explain why he gave greater weight to Alexander’s and Patel’s
opinions. While a closer question than that presented with
respect to Drs. Cohen and Renn, we find the ALJ’s evaluation of
the Wantz, Wiot, Alexander, and Patel opinions lacking and
accordingly vacate those determinations. On remand, the ALJ
should consider more explicitly the opinion of Dr. Wantz and
reweigh the opinions of Drs. Wiot, Alexander, and Patel
accordingly.
14
physician’s reliance upon the excluded evidence, or, as a last
resort, exclude the report from the record. Additionally,
before reweighing the opinion evidence described herein, the ALJ
is directed to reconsider more fully the opinion of Dr. Wantz.
The ALJ shall then “reweigh all of the medical opinion evidence
of record and determine whether it supports [] finding[s] of the
existence of pneumoconiosis [and total disability] under
Section[s] 718.202(a)(4) [and 718.204].” J.A. 678.
IV.
For the foregoing reasons, we affirm the Board’s decision
as to the timeliness of Dempsey’s application and as to the
other issues raised by Sewell Coal Company as reflected in
footnote 1. We vacate the Board’s decision as to the findings
of pneumoconiosis and disability and remand this case for
further proceedings in conformity with this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
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