Milburn Colliery Co v. Hicks

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MILBURN COLLIERY COMPANY,

Petitioner,

v.

GUY HICKS; DIRECTOR, OFFICE OF

No. 96-2438

WORKERS' COMPENSATION PROGRAMS,

UNITED STATES DEPARTMENT OF

LABOR,

Respondents.

On Petition for Review of an Order

of the Benefits Review Board.

(96-494-BLA)

Argued: December 4, 1997

Decided: March 6, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and MERHIGE,

Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Williams wrote

the opinion, in which Judge Luttig and Senior Judge Merhige joined.

_________________________________________________________________

COUNSEL

ARGUED: William Steele Mattingly, JACKSON & KELLY, Mor-

gantown, West Virginia, for Petitioner. Jeremy Young Taylor,

NATIONAL LEGAL RESEARCH GROUP, INC., Charlottesville,

Virginia, for Respondents. ON BRIEF: Ann B. Rembrandt, JACK-

SON & KELLY, Charleston, West Virginia, for Petitioner. Don M.

Stacy, Beckley, West Virginia, for Respondent Hicks.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Guy Hicks applied for benefits under the Black Lung Benefits Act

(the Act), see 30 U.S.C.A. §§ 901-945 (West 1986 & Supp. 1997), on

May 28, 1981. An Administrative Law Judge (ALJ) reviewed Hicks'

claim on three separate occasions. The Benefits Review Board

(Board) remanded the claim twice for reconsideration. The ALJ's

third order awarding benefits was finally affirmed by the Board, fif-

teen years after Hicks applied for benefits. Milburn Colliery Company

(Milburn) now petitions for review of the Board's order. Because the

ALJ failed to consider all of the relevant evidence and made several

other errors of law, we vacate and remand to the Board with instruc-

tions to assign the claim to a new ALJ for a prompt review of Hicks'

application for benefits.

I.

Hicks labored underground as a coal miner for approximately forty

years. His last employment in the coal mines was with Milburn from

1974 to 1982. Hicks applied for benefits under the Black Lung Bene-

fits Act after suffering a heart attack in 1981. After Hicks underwent

coronary artery bypass surgery in 1982, he never returned to work in

the coal mines.

The record contains reports from six physicians dating from 1979

to 1988 that conflict as to whether Hicks has a totally disabling respi-

ratory condition or is disabled solely by another ailment such as his

heart disease or obesity. Additionally, the reports conflict as to

whether, if disabled, his disability was attributable to coal workers'

pneumoconiosis or another factor such as his smoking history. The

same ALJ has evaluated the evidence three times. The ALJ's 1989

denial of benefits (First Order) was reversed and remanded by the

2

Board in 1993. The ALJ's award of benefits in 1993 (Second Order)

was reversed and remanded by the Board in 1995. His 1995 award

(Third Order), which was affirmed by the Board in 1996, incorporated

all non-inconsistent rulings from his 1989 and 1993 decisions; thus,

in essence, we review all three decisions.

Milburn now appeals, arguing that the arterial blood-gas study evi-

dence does not support a finding of total disability and that the reli-

ance upon medical opinion was neither supported by the evidence nor

consistent with applicable law.

II.

We review claims for benefits under the Act to determine whether

substantial evidence supports the ALJ's findings of fact. See Dehue

Coal Co. v. Ballard, 65 F.3d 1189, 1193 (4th Cir. 1995). Substantial

evidence is "more than a mere scintilla." Consolidated Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938). It is "such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion."

Id. In determining whether substantial evidence supports the ALJ's

factual determinations, we must first address whether all of the rele-

vant evidence has been analyzed and whether the ALJ has sufficiently

explained his rationale in crediting certain evidence. See Sterling

Smokeless Coal Co. v. Akers, 131 F.3d 438, 439 (4th Cir. 1997). We

review the ALJ's and the Board's conclusions of law de novo to

determine whether they are rational and consistent with applicable

law. See Dehue, 65 F.3d at 1193. Because the ALJ failed to analyze

all of the relevant evidence, failed to adequately explain his reasons

for crediting certain evidence and discrediting other evidence, and

made several errors of law, Hicks' claim must be remanded for fur-

ther consideration.

III.

Hicks filed his claim for benefits after March 31, 1980. Thus, the

standards for determining whether he is disabled due to pneumoconi-

osis are found in 20 C.F.R. Part 718. See 20 C.F.R. § 718.2 (1997).

To establish eligibility for benefits under 20 C.F.R. Part 718, a claim-

ant must prove that (1) he has pneumoconiosis; (2) the pneumoconio-

sis arose out of his coal mine employment; (3) he has a totally

3

disabling respiratory or pulmonary condition; and (4) pneumoconiosis

is a contributing cause to his total respiratory disability. See Robinson

v. Pickands Mather & Co., 914 F.2d 35, 36, 38 (4th Cir. 1990); 20

C.F.R. §§ 718.201-.204 (1997). Milburn does not dispute that Hicks

has pneumoconiosis or that his pneumoconiosis arose out of his coal

mine employment. The dispute centers around whether Hicks is

totally disabled from a respiratory or pulmonary condition and

whether pneumoconiosis contributed to his total disability.

A. Total Respiratory or Pulmonary Disability

The Act requires a miner to establish that he has a totally disabling

respiratory condition.1 See Jewell Smokeless Coal Corp. v. Street, 42

F.3d 241, 243 (4th Cir. 1994). In the absence of contrary probative

evidence, a miner will establish total respiratory or pulmonary disabil-

ity pursuant to the criteria set forth in 20 C.F.R.§ 718.204(c) by sub-

mitting either (1) qualifying pulmonary function tests; (2) qualifying

arterial blood-gas tests; (3) evidence that the miner suffers from cor

pulmonale with right-sided congestive heart failure; or (4) a reasoned

physician's report which concludes that the miner's respiratory or

pulmonary condition prevents the miner from engaging in his usual

coal mine work or comparable gainful employment. 2 See 20 C.F.R.

§ 718.204(c) (1997). If contrary probative evidence exists, "the ALJ

must assign the contrary evidence appropriate weight and determine

whether it outweighs the evidence that supports a finding of total dis-

ability." Lane v. Union Carbide Corp., 105 F.3d 166, 171 (4th Cir.

1997).

_________________________________________________________________

1 As discussed in Part III.B., post at 15, a claimant also must prove that

pneumoconiosis was, at least in part, a contributing cause to his total res-

piratory disability. Robinson v. Pickands Mather & Co., 914 F.2d 35, 38

(4th Cir. 1990).

2 A miner may also establish total disability by invoking the irrebutt-

able presumption in 20 C.F.R. § 718.304 (providing irrebuttable pre-

sumption of total disability or death due to pneumoconiosis may be

established by submitting chest X-ray yielding one or more large opaci-

ties or biopsy or autopsy yielding massive lesions in lung). Hicks did not

submit evidence to invoke the presumption of disability in § 718.304, so

we evaluate his claim instead under § 718.204. Compare 20 C.F.R.

§ 718.204 with 20 C.F.R. § 718.304 (1997).

4

Hicks does not dispute that the three pulmonary function tests in

the record all produced non-qualifying values, and he produced no

evidence establishing cor pulmonale with right-sided congestive heart

failure. We must therefore determine whether Hicks established total

disability under § 718.204(c)(2) on the basis of unchallenged arterial

blood-gas studies, or under § 718.204(c)(4) by uncontradicted rea-

soned medical opinion evidence. If the evidence is contradicted, we

must determine whether the ALJ conducted an appropriate analysis of

the evidence to support his conclusion.

1. Blood-Gas Study Evidence

In his First Order, the ALJ concluded that Hicks had presented

valid arterial blood-gas studies showing that Hicks was totally disabled.3

See 20 C.F.R. § 718.204(c)(2) (1997). The record, however, contained

reports of four blood-gas studies performed on Hicks, the results of

which were in conflict.4 Although the ALJ noted that the blood-gas

_________________________________________________________________

3 Although the ALJ concluded the qualifying blood-gas studies demon-

strated Hicks was totally disabled pursuant to § 718.204(c)(2), he con-

cluded the blood-gas study evidence was insufficient to establish that

Hicks' disability was caused in part by pneumoconiosis. Thus, the ALJ

determined the question of total disability should turn not on the blood-

gas study evidence, but instead on the medical opinion evidence submit-

ted pursuant to 20 C.F.R. § 718.204(c)(4). On the basis of the medical

opinion evidence submitted pursuant to 20 C.F.R.§ 718.204(c)(4), the

ALJ found Hicks had no respiratory impairment and was instead disabled

solely by his cardiac condition. See post at 8-9.

4 The study performed on October 8, 1979, by Dr. Rasmussen produced

qualifying results on the at-rest portion and two during-exercise tests. Dr.

Gaziano, on behalf of the Department of Labor, reviewed and validated

the 1979 blood-gas study. Thereafter, Hicks suffered a heart attack and

underwent coronary artery bypass surgery. On December 20, 1985, an at-

rest test performed at St. Francis Hospital produced qualifying results;

Hicks was not given a during-exercise blood-gas test due to his heart

condition. The at-rest portion of a February 15, 1988, study administered

by Dr. Rasmussen produced qualifying results, but the three during-

exercise tests performed on the same day did not. An April 20, 1988,

study administered by Dr. Zaldivar produced non-qualifying results. Dr.

Zaldivar did not perform a during-exercise test due to Hicks' cardiac

condition.

5

test results were contradictory, he found the studies to be, at the least,

equally probative, and thus sufficient to provide Hicks with the bene-

fit of the "true doubt" rule.5 He also decided to accord the greatest

weight to the October 8, 1979, study performed by Dr. Rasmussen

because it was the only study validated by an independent physician,

Dr. Gaziano. Milburn challenged the ALJ's reliance upon blood-gas

study evidence in finding Hicks totally disabled. The Board upheld

the ALJ's decision, reasoning that the ALJ was not required to accord

greater weight to the most recent blood-gas study evidence and that

the ALJ acted within his discretion in applying the"true doubt" rule

and in according greater weight to the October 8, 1979, study because

it was the only independently validated study. For other reasons the

Board remanded the case for further evaluation.

It is undisputed that the blood-gas study evidence was contradic-

tory. Out of a total of nine tests, the five initial tests produced qualify-

ing results, and the four later tests did not. Although we have

explicitly rejected a "later is better" approach to contradictory x-ray

evidence in cases arising under the Act, see Adkins v. Director,

OWCP, 958 F.2d 49, 51 (4th Cir. 1992), the parties conceded at oral

argument that because pneumoconiosis is a progressive disease, later

nonqualifying arterial blood-gas studies are inconsistent with coal

workers' pneumoconiosis, see Gray v. Director, OWCP, 943 F.2d

513, 520-21 (4th Cir. 1991) (upholding ALJ's decision to credit later

_________________________________________________________________

5 The "true doubt" rule provided that "[w]hen there is conflicting, but

equally probative, evidence for and against the existence of a particular

fact in the benefits inquiry, or, ultimately, when the evidence for and

against entitlement to black lung benefits is equiponderate . . . the benefit

of the doubt [must] be given to the claimant." Grizzle v. Pickands Mather

& Co., 994 F.2d 1093, 1096 (4th Cir. 1993). The true doubt rule was sub-

sequently invalidated by the Supreme Court. See Director, OWCP v.

Greenwich Collieries, 512 U.S. 267, 281 (1994) (holding the "true

doubt" rule conflicted with § 7(c) of the Administrative Procedure Act).

The Board, in its 1995 order, noted the Court's intervening decision

had rendered the ALJ's application of the "true doubt" rule to be error,

but the Board nevertheless held that any error was harmless because the

ALJ offered valid alternative reasons for finding total respiratory disabil-

ity: according more weight to the "independently validated" blood-gas

study and to a medical opinion of Dr. Rasmussen.

6

nonqualifying studies because they were "more indicative of claim-

ant's present condition").

Even if we look to factors other than the chronological relationship

of the tests, we question whether the ALJ's conclusions with respect

to the blood-gas studies were reasonable. The ALJ and the Board

credited Dr. Rasmussen's 1979 blood-gas study solely because it was

validated by Dr. Gaziano for the United States Department of Labor.

Dr. Gaziano, however, merely checked a box verifying that the test

was technically acceptable. He provided no reasons for his opinion.

Therefore, his validation lent little additional persuasive authority to

Dr. Rasmussen's 1979 study. Cf. Lane v. Union Carbide Corp., 105

F.3d 166, 172 (4th Cir. 1997) (noting lack of detail in validation of

a qualifying blood-gas study and affirming ALJ's conclusion that

arterial blood-gas studies did not establish total disability).

The ALJ did not discuss the reports submitted by three qualified

physicians that criticized Dr. Rasmussen's interpretation of the blood-

gas studies. Dr. Fino, who is board-certified in both Internal Medicine

and Pulmonary Disease, analyzed Dr. Rasmussen's 1979 arterial

blood-gas study in a report dated February 5, 1988. Dr. Fino did not

challenge the validity or accuracy of the 1979 study, but concluded

that "the high ventilatory rate recorded during[the] exercise study

was due to hyperventilation" and that the exercise study "demon-

strated the fact that [Hicks] can exercise to an oxygen consumption

necessary for his last job in the mines." (J.A. at 51.) The ALJ failed

to discuss Dr. Fino's report at all.

The ALJ also neglected to consider Dr. Sobieski's report of Febru-

ary 9, 1988, in which he also questioned the validity of Dr. Rasmus-

sen's interpretation of the 1979 arterial blood-gas study. Based upon

his 1979 study, Dr. Rasmussen concluded that Hicks' lung capacity

was approximately 85% impaired, and thus Hicks was incapable of

performing steady work beyond sedentary work levels. Dr. Sobieski,

a board-certified physician in Internal Medicine, criticized these con-

clusions, however, stating, "Dr. Rasmussen's conclusions are obvi-

ously wrong since at the time of [Hicks'] application [for benefits]

two years [after the 1979 study] he was doing far more than just sed-

entary work." (J.A. at 55.)

7

The ALJ also failed to consider Dr. Zaldivar's testimony that obe-

sity could affect the blood-gas studies, causing the studies to be more

likely to qualify; nor did the ALJ address the potential effect of

Hicks' heart disease and intervening coronary artery surgery on the

tests. Cf. Ramey v. Kentland Elkhorn Coal Corp. , 755 F.2d 485, 491

(4th Cir. 1985) (noting physician found claimant's blood gas results

"consistent with heart disease" and affirming ALJ's conclusion that

claimant had a totally disabling heart disease, but that he did not have

a totally disabling pulmonary impairment). Dr. Zaldivar also testified

that on the basis of Dr. Rasmussen's second blood-gas study, con-

ducted in 1988, Hicks should have been able to perform his previous

job as a beltman. In its review of the ALJ's Second Order, the Board

found that the ALJ erred in "substituting his opinion for that of a phy-

sician when he discredited Dr. Zaldivar's [opinion] because of [Dr.

Zaldivar's] interpretation of a blood gas study" and remanded for a

correction of that error, among others. (J.A. at 31.) On remand, how-

ever, the ALJ never resolved, or even discussed, the contradictions in

the evidence created by Dr. Zaldivar's interpretations of Dr. Rasmus-

sen's blood-gas studies.

Because the ALJ did not have the benefit of the parties' concession

and failed to consider all the relevant evidence presented, we remand

for further consideration the issue of whether the arterial blood-gas

studies support a finding of total respiratory disability.

2. Reasoned Medical Opinion

We now turn to the question of whether the medical opinion evi-

dence supported the ALJ's finding that Hicks suffered from a totally

disabling respiratory condition pursuant to 20 C.F.R. § 718.204(c)(4).

Total respiratory disability may be established by"a physician exer-

cising reasoned medical judgment, based on medically acceptable

clinical and laboratory diagnostic techniques, conclud[ing] that a

miner's respiratory or pulmonary condition prevents or prevented the

miner from engaging in [his usual coal mine work]." 20 C.F.R.

§ 718.204(c)(4) (1997).

8

a. Administrative Record Below

In his First Order, the ALJ concluded, upon reviewing the medical

opinion evidence under 20 C.F.R. § 718.204(c)(4), that Hicks did not

have a significant pulmonary impairment and that his disability

resulted instead from his coronary artery disease which was unrelated

to his coal mine employment. In so doing, the ALJ relied exclusively

upon two of the examining physicians' reports, Dr. Rasmussen's and

Dr. Zaldivar's.6 Of the two reports, the ALJ credited Dr. Zaldivar's

opinion over Dr. Rasmussen's. Dr. Zaldivar concluded that although

Hicks suffered from pneumoconiosis, he had no respiratory impair-

ment and was instead disabled solely due to his cardiac condition.

The ALJ found Dr. Zaldivar's opinion to be "the most thorough

and detailed medical analysis" in the record and"in better accord with

the overall weight of the evidence." (J.A. at 8.) He also found Dr.

Rasmussen's opinion less persuasive because "Dr. Rasmussen failed

to provide a meaningful evaluation of [the] heart related ailments"

that had caused Hicks to stop working. (J.A. at 8.) Furthermore, the

ALJ stated that Dr. Rasmussen failed to explain how his diagnosis of

minimal pulmonary impairment, based upon two pulmonary function

studies, was consistent with his conclusion of total respiratory disabil-

ity. A divided Board held that the ALJ erred by discrediting Dr. Ras-

mussen's opinion solely based upon the apparent inconsistencies

between his pulmonary function studies and his diagnosis.7 The Board

further noted that, contrary to the ALJ's assertion, Dr. Rasmussen had

mentioned Hicks' coronary artery disease. Accordingly, the Board

remanded for further consideration of whether reasoned medical opin-

ion established Hicks' total disability and, if so, its cause.

In his Second Order, the ALJ reversed his position and awarded

benefits. He still relied solely upon the opinions of Dr. Rasmussen

and Dr. Zaldivar, never discussing the other doctors' medical opin-

ions. In his Second Order, however, the ALJ found that both Dr. Ras-

mussen and Dr. Zaldivar agreed that Hicks was totally disabled "in

_________________________________________________________________

6 See post at 10-11 (noting ALJ erred in giving absolute deference to

examining physicians' opinions).

7 One member of the Board would have affirmed the ALJ's finding

pursuant to § 718.204(c)(4).

9

terms of the criteria set out in 20 CFR 718.204(c)" because he could

no longer perform his customary work, but that they disagreed as to

the cause of his disability. Dr. Zaldivar found that Hicks was disabled

due to his heart condition, while Dr. Rasmussen attributed Hicks' dis-

ability to a respiratory condition arising from both coal mine work

and cigarette smoke exposure. The ALJ inferred that Dr. Rasmussen's

opinion was more persuasive than Dr. Zaldivar's because it was more

consistent with non-medical evidence of Hicks' coal mine employ-

ment and Hicks' own lay testimony as to his symptoms. The ALJ also

noted that even if Hicks' evidence was insufficient to outweigh Mil-

burn's evidence, the evidence was "equally balanced and equally per-

suasive," and would thus lead to the application of the "true doubt"

rule.8 The ALJ discredited Dr. Zaldivar's opinion on the basis that Dr.

Zaldivar used inappropriate criteria in evaluating the blood-gas study

evidence, misconstrued other examining physicians' findings, and

expressed "partisan advocacy" in justifying his medical conclusions.

On review, the Board held that the ALJ erred in finding Dr. Zaldi-

var's opinion supported a finding of total disability under

§ 718.204(c)(4) because Dr. Zaldivar attributed Hicks' disability to

his heart condition rather than any respiratory or pulmonary impair-

ment. The Board concluded, however, that the error was harmless

since the ALJ provided a valid alternative basis for finding total respi-

ratory disability pursuant to § 718.204(c)(4), namely by crediting Dr.

Rasmussen's opinion over Dr. Zaldivar's. Nevertheless, the ALJ's

Second Order was remanded for reconsideration of the competing

medical opinion evidence because the Board found that the three rea-

sons the ALJ gave for discrediting Dr. Zaldivar's opinion were erro-

neous. Upon remand, in his Third Order, the ALJ incorporated all

non-inconsistent findings of fact from his previous two orders and

again awarded benefits relying solely upon Dr. Rasmussen's opinion.

b. Errors in the ALJ's Finding Total

Respiratory Disability

In concluding Hicks established that he was totally disabled due to

a respiratory condition, the ALJ erred by failing to consider all of the

_________________________________________________________________

8 See the discussion of the"true doubt" rule and its subsequent invalida-

tion by the Supreme Court, ante n.5.

10

relevant evidence, improperly weighing certain evidence, failing to

adequately explain why he credited certain evidence and discredited

other evidence, and never adequately addressing the evidence of

Hicks' other health problems.

First, the ALJ erred in failing to examine all of the relevant evi-

dence. See Sterling Smokeless Coal Co. v. Akers , 131 F.3d 438, 439

(4th Cir. 1997). The ALJ gave absolute deference to the examining

physicians' reports, with the exception of Drs. Subbaraya and Bem-

balker, who gave no rationale for their opinions. 9 The opinions of

examining physicians Dr. Rasmussen and Dr. Zaldivar were the sole

bases for the ALJ's determination pursuant to 20 C.F.R.

§ 718.204(c)(4). The ALJ completely disregarded the opinions of Dr.

Fino and Dr. Sobieski, despite the fact that he found their opinions to

be "of high quality," simply because they did not examine Hicks.10

We recently noted that an ALJ should not "mechanistically credit[ ],

to the exclusion of all other testimony," the testimony of an examin-

ing or treating physician solely because the doctor personally exam-

ined the claimant. Akers, 131 F.3d at 441. The ALJ has a "statutory

obligation to consider all of the relevant evidence bearing upon the

existence of pneumoconiosis and its contribution to the miner's [dis-

ability]." Id. at 442. Therefore, the ALJ erred in considering Dr. Ras-

mussen's and Dr. Zaldivar's opinions to the exclusion of all the other

competent medical opinion evidence.

Second, the ALJ, in his Second Order, improperly weighed the evi-

dence of Hicks' length of employment in the coal mines and Hicks'

own statements about his pulmonary symptoms, stating:

_________________________________________________________________

9 An ALJ has discretion to disregard an opinion unsupported by a suffi-

cient rationale. See Underwood v. Elkay Mining, Inc., 105 F.3d 946, 951

(4th Cir. 1997) ("In weighing opinions, the ALJ is called upon to con-

sider their quality," taking into account, among other things, "the opin-

ions' reasoning" and "detail of analysis."); see also Risher v. OWCP, 940

F.2d 327, 331 (8th Cir. 1991) ("An ALJ may disregard a medical opinion

that does not adequately explain the basis for its conclusion.").

10 Dr. Fino attributed Hicks' disability to his obesity. Dr. Sobieski attri-

buted Hicks' mild pulmonary impairment solely to his long history of

smoking, and found Hicks was disabled because of his coronary artery

disease.

11

The evidence as to the length of the Claimant's employment

at strenuous physical labor in underground coal mines

strongly supports the conclusion expressed by Dr. Rasmus-

sen . . . that a respiratory or pulmonary condition prevents

him from engaging in his former coal mine employment.

This non-medical evidence and the testimony of the Claim-

ant as to the pulmonary symptoms from which he is suffer-

ing also support the inference that Dr. Rasmussen's finding

as to this issue is more persuasive than that of Dr. Zaldivar.

(J.A. at 22.) While relevant to the issue of whether there is a totally

disabling respiratory impairment, a miner's own statements about his

history of coal mine employment or symptoms of pneumoconiosis are

not conclusive in resolving conflicting medical opinion evidence. To

hold otherwise would be tantamount to allowing the ALJ to substitute

his untrained opinion for that of qualified experts, which is not

allowed. See Peabody Coal v. Lowis, 708 F.2d 266, 275 (7th Cir.

1983) (holding ALJ erred in ignoring reasoned medical opinion of a

board certified specialist in internal medicine and pulmonary diseases

that claimant's respiratory impairment was due to cigarette smoking

and not coal mine employment). Additionally, the length of a miner's

coal mine employment does not compel the conclusion that the

miner's disability was solely respiratory. See, e.g., Ramey v. Kentland

Elkhorn Coal Corp., 755 F.2d 485, 492 (6th Cir. 1985) (holding

miner employed in coal mines twenty-nine years was totally disabled

due to heart disease not pneumoconiosis).

Third, the ALJ failed to adequately explain why he credited certain

evidence and discredited other evidence. For example, the ALJ cited

no valid reasons for crediting Dr. Rasmussen's opinion over Dr. Zal-

divar's. In his final order, the ALJ credited Dr. Rasmussen's opinion,

stating:

In according greater weight to the opinion of Dr. Rasmus-

sen, I find that, despite some discrepancy in Claimant's

reported cigarette smoking history, his opinion is most con-

sistent with the Claimant's extensive history of coal mine

employment, Claimant's subjective complaints, some abnor-

mal findings on physical examination, x-ray and medical

12

opinion evidence of pneumoconiosis, and the preponderance

of the valid arterial blood gas results.

(J.A. at 35.) None of these reasons is a sufficient basis for concluding

Hicks was disabled due to a respiratory impairment. We examine

each in turn. The length of Hicks' coal mine employment does not

conclusively confirm that the claimant was disabled due to a respira-

tory or pulmonary condition. Similarly, Hicks is not an expert as to

the cause of his shortness of breath and wheezing and cannot make

a medical judgment as to whether such subjective symptoms are fairly

attributable to a respiratory condition or to cardiac disease or to obe-

sity. Cf. Peabody Coal Co. v. Helms, 859 F.2d 486, 490 (7th Cir.

1988) (noting with approval physician's statement that "shortness of

breath can be a symptom of heart disease and . . .[claimant's] heart

disease was not related to his coal mine employment"). The ALJ's

statement that "some abnormal findings on physical examination"

also supported Dr. Rasmussen's opinion is too vague to support a

finding of total disability due to a respiratory condition. Reliance

upon the x-ray evidence is also misplaced; all of the physicians who

submitted reports agreed that x-rays revealed Hicks had pneumoconi-

osis, but the mere presence of pneumoconiosis is not synonymous

with a totally disabling respiratory condition. As discussed in part

III.A.1., the arterial blood-gas results were contradictory.

In addition to failing to give sufficient reasons for crediting Dr.

Rasmussen's opinion, the ALJ did not provide adequate reasons for

discrediting Dr. Zaldivar's opinion. In his Second Order, the ALJ dis-

credited Dr. Zaldivar's opinion on the basis that Dr. Zaldivar used

inappropriate criteria in evaluating the blood-gas study evidence, mis-

construed other examining physicians' findings, and expressed "parti-

san advocacy" in justifying his medical conclusions. The Board

subsequently reversed each of these findings. The ALJ never articu-

lated alternative reasons for discrediting Dr. Zaldivar's opinion.

Finally, the ALJ erred in merely giving lip service to the evidence

of Hicks' other health problems. Specifically, the ALJ did not address

Dr. Rasmussen's failure to provide a meaningful evaluation of Hicks'

heart-related ailments, a reason for which the ALJ had previously dis-

credited Dr. Rasmussen's opinion in his First Order. The record in

this case contained ample evidence that Hicks had numerous other

13

health problems in addition to pneumoconiosis, including cardiac dis-

ease, coronary artery disease, obesity, and hypertension. The evidence

showed that Hicks stopped working because of a heart attack and sub-

sequent coronary artery bypass surgery in 1982. Dr. Zaldivar con-

cluded Hicks had no respiratory impairment and was disabled solely

due to his cardiac condition. Dr. Fino attributed Hicks' disability to

his obesity, and Dr. Sobieski determined Hicks was disabled because

of his coronary artery disease.

The ALJ failed to explain why he rejected all of this evidence of

Hicks' other health problems. In his Third Order, rather than provid-

ing any reasons for discrediting these physicians' conclusions, the

ALJ merely stated "even assuming that the Claimant's cardiac condi-

tion is the primary cause of Claimant's total disability as suggested

by Dr. Zaldivar, it is not the exclusive cause . . .. The Claimant's coal

worker's pneumoconiosis clearly is, at least, a significant contributing

cause of such total disability." (J.A. at 35-36.) The ALJ's statement

directly contravenes our previous holding that, to establish eligibility

for benefits, a miner must prove he has a totally disabling respiratory

condition. See Jewell Smokeless Coal Corp. v. Street, 42 F.3d 241,

243 (1994). In Jewell Smokeless, we rejected the argument that "[a]

miner need only establish that he has a total disability, which may be

due to pneumoconiosis in combination with nonrespiratory and non-

pulmonary impairments." Id. Thus, the ALJ erred in concluding that

even if Hicks' cardiac condition was the primary cause of Hicks' total

disability, Hicks would still be eligible for benefits because he suf-

fered from pneumoconiosis.

Even if the ALJ determines, after considering all of the relevant

evidence, that Hicks suffered from a totally disabling respiratory con-

dition, Hicks will not be eligible for benefits if he would have been

totally disabled to the same degree because of his other health prob-

lems. A claimant cannot establish eligibility for benefits if he would

have been totally disabled "to the same degree[and] by the same time

in his life had he never been a miner." Dehue Coal Co. v. Ballard, 65

F.3d 1189, 1196 (4th Cir. 1995); see also Shelton v. Director, OWCP,

899 F.2d 690, 693 (7th Cir. 1990) (holding miner not entitled to bene-

fits if he would have become disabled by reason of heavy smoking

or other activity or condition).

14

Therefore, on remand, the ALJ must determine whether Hicks suf-

fers from a totally disabling condition that is entirely respiratory or

pulmonary in nature and whether Hicks would have been totally dis-

abled to the same degree because of his other health problems. In

making this determination, the ALJ must consider all of the relevant

evidence, addressing Dr. Zaldivar's and the other physicians' conclu-

sions with respect to Hicks' nonpulmonary conditions.

B. Causation

To establish eligibility for benefits, a miner must prove not only

that he suffered from a totally disabling respiratory condition, but that

pneumoconiosis was a contributing cause to his totally disabling res-

piratory condition. See 20 C.F.R. § 718.204; Robinson v. Pickands

Mather & Co., 914 F.2d 35, 38 (4th Cir. 1990). Therefore, even if the

ALJ upon remand were to determine Hicks has established total respi-

ratory disability by blood-gas study evidence or reasoned medical

opinion evidence, that still does not answer the very important ques-

tion necessary to establish eligibility for benefits: whether the total

respiratory disability was caused in whole or in part by coal workers'

pneumoconiosis.

In addition to failing to consider all of the relevant evidence relat-

ing to Hicks' potential disability, the ALJ neglected to consider the

relevant evidence relating to the possible causes of such a disability.

For example, the ALJ dismissed Hicks' long history of cigarette

smoking. Although Dr. Rasmussen first reported Hicks smoked one

pack of cigarettes daily for thirty-five years, and he later reported

Hicks smoked 1/3 pack of cigarettes a day for forty-five years, Hicks'

long history of smoking was undisputed. Dr. Sobieski originally con-

cluded Hicks' mild pulmonary impairment was solely a result of his

history of cigarette smoking.11 Dr. Rasmussen opined that Hicks' pul-

monary impairment was partially attributable to his long history of

_________________________________________________________________

11 At the time of his original consultative report of February 9, 1988,

Dr. Sobieski did not have records of Hicks' myocardial infarction and

coronary bypass surgery. Dr. Sobieski submitted a supplemental report

on May 5, 1988, after reviewing those records concluding Hicks' disabil-

ity resulted from his coronary artery disease, not a respiratory impair-

ment.

15

cigarette smoking. We have noted that "a medical opinion that

acknowledges the miner's respiratory or pulmonary impairment, but

nevertheless concludes that an ailment other than pneumoconiosis

caused the miner's total disability, is relevant because it directly

rebuts the miner's evidence that pneumoconiosis contributed to his

disability." Dehue, 65 F.3d at 1193 (citing Hobbs v. Clinchfield Coal

Co., 45 F.3d 819, 821 (4th Cir. 1995) (Hobbs II)). Every doctor con-

cluded Hicks had pneumoconiosis, but their conclusions differed as

to whether Hicks had a totally disabling respiratory condition and, if

so, what factors caused it.

The ALJ failed to address other possible causes of Hicks' potential

disability, summarily concluding in his Third Order that Dr. Rasmus-

sen's opinion that Hicks' totally disabling respiratory condition was

due to pneumoconiosis was "most consistent with the Claimant's

extensive history of coal mine employment [and] Claimant's subjec-

tive complaints." (J.A. at 35.) Just as the length of a miner's employ-

ment in the coal mines does not compel the conclusion that a miner's

disability was entirely respiratory in nature, it does not conclusively

establish that pneumoconiosis contributed to a totally disabling respi-

ratory condition. See, e.g., Stiltner v. Island Creek Coal Co., 86 F.3d

337, 339-340 (4th Cir. 1996) (holding miner employed in coal mines

approximately forty years had obstructive lung disease attributable

solely to cigarette smoking not pneumoconiosis); Grizzle v. Pickands

Mather & Co., 994 F.2d 1093, 1094, 1099 (4th Cir. 1993) (holding

miner employed thirty-five years suffering from pneumoconiosis died

from emphysema and lung cancer to which pneumoconiosis was not

contributing cause).

The ALJ upon remand must evaluate all of the relevant evidence

to determine whether Hicks has established total respiratory disabil-

ity, and, if so, whether the total respiratory disability was caused, at

least in part, by coal workers' pneumoconiosis.

C. Other Errors of Law

The ALJ made other errors of law in his three orders below. He

ignored the respective qualifications of the physicians and failed to

specify the bases for his determination to award benefits in his Third

Order.

16

First, the ALJ improperly discounted the respective qualifications

of the physicians. Dr. Rasmussen is board-certified in only Internal

Medicine, while Dr. Zaldivar is board-certified in both Internal Medi-

cine and Pulmonary Disease. Although the ALJ noted the relative

qualifications of the two physicians, he attributed no importance to

the comparative credentials of the physicians, noting their respective

qualifications were "not dispositive of the issue." (J.A. at 35.) We

have previously stated that experts' respective qualifications are

important indicators of the reliability of their opinions. See Akers at

440, 441, nn.1-2; Adkins v. Director, OWCP, 958 F.2d 49, 52 (4th

Cir. 1992). Furthermore, the ALJ completely ignored the medical

opinions of the other physicians, despite their credentials. For exam-

ple, the ALJ did not consider the opinion of Dr. Fino, a board-

certified physician in both Internal Medicine and Pulmonary Disease.

Dr. Fino concluded that Hicks did not "[have a] respiratory impair-

ment even though he ha[d] simple coal workers' pneumoconiosis."

(J.A. at 149.) Instead, Dr. Fino attributed Hicks' disability solely to

his obesity. On remand, the ALJ should consider all of the relevant

evidence, taking into account the respective qualifications of the phy-

sicians.

Second, instead of specifying the bases for his determination to

award benefits in his Third Order, the ALJ merely incorporated the

findings of fact from his two previous orders.12 Many of the ALJ's

previous findings --- such as his reasons for discrediting Dr. Zaldi-

var's opinion --- had been expressly vacated by the Board. After the

Board's superseding orders modified and vacated the ALJ's earlier

orders, few of the ALJ's findings of fact remained intact. Some of the

ALJ's conclusions of law were also reversed by later court rulings;

_________________________________________________________________

12 The ALJ stated:

Except as otherwise modified or superseded herein, or expressly

vacated by the decisions of the Benefits Review Board, all of the

evidence which was previously discussed in the original Deci-

sion and Order Denying Benefits and the Decision and Order on

Remand Awarding Benefits are incorporated herein, thereby

obviating the necessity for a complete repetition of such evi-

dence.

(J.A. at 34-35.)

17

for example, the Supreme Court held the "true doubt" rule invalid.13

It is therefore difficult for a reviewing body to ascertain exactly what

evidence and conclusions the ALJ relied upon to determine total dis-

ability and causation. See Jewell Smokeless, 42 F.3d at 244 (noting

difficulty in ascertaining whether claimant's disability was due to a

pulmonary impairment totally separate from other non-respiratory

conditions). Only the ALJ may make findings of fact as to whether

the evidence indicates a miner suffers from a totally disabling respira-

tory condition to which pneumoconiosis is a contributing cause. See

id. at 245. Since we are legally unable to reweigh the evidence our-

selves, see Grizzle v. Pickands Mather & Co., 994 F.2d 1093, 1098

(4th Cir. 1993), the claim must be remanded for explicit findings of

fact and conclusions of law as to whether Hicks suffers from a totally

disabling respiratory condition, and if so, whether pneumoconiosis

was a contributing cause.

Moreover, the ALJ's final order, incorporating all previous find-

ings, is violative of the Administrative Procedure Act (APA). The

APA requires that "[a]ll decisions . . . shall include a statement of . . .

findings and conclusions, and the reasons or basis therefor, on all the

material issues of fact, law, or discretion presented on the record." See

5 U.S.C.A. § 557(c)(3)(A) (West 1996); See v. Washington Metro.

Area Transit Auth., 36 F.3d 375, 384 (4th Cir. 1994). The ALJ instead

relied upon summary conclusions that were not fully explained or

supported. In his Third Order, the ALJ stated, "[b]ased upon the total-

ity of the evidence, in particular the opinion of Dr. Rasmussen, which

I credit, I find that the Claimant's coal worker's[sic] pneumoconiosis

clearly is, at least, a significant contributing cause of such total dis-

ability." (J.A. at 36.) In deciding to award benefits, he relied solely

upon his conclusion that Dr. Rasmussen's opinion was entitled to

greater weight than all of the other relevant evidence, a conclusion

that was not supported by valid reasoning.

IV.

Finding the ALJ made several errors of law including failing to

consider all of the relevant evidence and to adequately explain his

rationale for crediting certain evidence, we conclude that review of

_________________________________________________________________

13 See discussion ante n.5.

18

this claim requires a fresh look at the evidence, unprejudiced by the

various outcomes of the ALJ and the Board's orders below. Accord-

ingly, we reverse and direct the Board promptly to remand to a new

ALJ with instructions to expeditiously review the record for a deter-

mination of whether Hicks has established entitlement to Black Lung

benefits pursuant to 20 C.F.R. § 718.204. To determine whether the

claimant meets his burden under 20 C.F.R. § 718.204, the new ALJ

has discretion to reopen the record.

REVERSED AND REMANDED FOR FURTHER

PROCEEDINGS CONSISTENT WITH THIS OPINION

19