Scott v. Mason Coal Company

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERNEST SCOTT, 

Petitioner,

v.

MASON COAL COMPANY; DIRECTOR,  No. 99-1495

OFFICE OF WORKERS’ COMPENSATION

PROGRAMS, UNITED STATES

DEPARTMENT OF LABOR,

Respondents.



On Petition for Review of an Order

of the Benefits Review Board.

(98-660-BLA)

Argued: February 28, 2000

Decided: May 2, 2002

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,

and James R. SPENCER, United States District Judge

for the Eastern District of Virginia, sitting by designation.

Reversed and remanded with instructions by published opinion. Judge

Widener wrote the opinion, in which Chief Judge Wilkinson and

Judge Spencer joined.

COUNSEL

ARGUED: Martin Douglas Wegbreit, CLIENT CENTERED

LEGAL SERVICES OF SOUTHWEST VIRGINIA, INC., Castle-

2 SCOTT v. MASON COAL COMPANY

wood, Virginia, for Petitioner. Mark Elliott Solomons, ARTER &

HADDEN, L.L.P., Washington, D.C., for Respondents. ON BRIEF:

Laura Metcoff Klaus, ARTER & HADDEN, L.L.P., Washington,

D.C., for Respondents.

OPINION

WIDENER, Circuit Judge:

This is Ernest Scott’s second appeal to this court from a decision

by the Benefits Review Board (the Board) upholding an administra-

tive law judge’s (ALJ) decision to deny him benefits under the Black

Lung Benefits Act, 30 U.S.C. §§ 901-45. In Scott v. Mason Coal Co.,

60 F.3d 1138 (4th Cir. 1995), we remanded the case for a determina-

tion of whether Scott is totally disabled, and if so, of whether his dis-

ability was caused at least in part by pneumoconiosis. On remand, the

ALJ found the medical evidence did not indicate that Scott was totally

disabled or that any disability was caused in part by pneumoconiosis.

Scott v. Mason Coal Co., BRB No. 96-0995 BLA (Jan. 30, 1998). The

Board affirmed that decision on appeal. Scott v. Mason Coal Co.,

BRB No. 98-0660 BLA (Mar. 17, 1999). We find that the ALJ com-

mitted error in failing to consider a reasoned medical opinion indicat-

ing that Scott is totally disabled and in erroneously relying on the

opinions of two doctors who did not diagnose Scott with pneumoconi-

osis. We reverse and remand with an order to the Board to award ben-

efits to Scott.

I.

Scott started working in the coal mines at the age of 14 and contin-

ued to do so for 24 years. He last worked for Mason Coal Company

(Mason Coal), the responsible operator in this case, in April 1983.

Scott first filed for benefits under the Black Lung Benefits Act on

January 3, 1984.

In 1988, an ALJ determined that Scott has pneumoconiosis that

arose out of his coal mine employment.1 Scott, 60 F.3d at 1139. How-

1

The ALJ determined that Scott had pneumoconiosis from contradic-

tory X-ray evidence. The ALJ justified the determination after using the

SCOTT v. MASON COAL COMPANY 3

ever, in order to receive benefits, Scott still had to prove that he was

totally disabled and that his disability was due to pneumoconiosis.

Toler v. Eastern Associated Coal Co., 43 F.3d 109, 112 (4th Cir.

1995). The ALJ found that Scott did not establish that he was totally

disabled from pneumoconiosis because he could not show that his dis-

ability was due solely to pneumoconiosis. The Board initially

affirmed the ALJ’s decision on appeal. Scott v. Mason Coal Co., BRB

No. 88-1838 BLA (Dec. 21, 1989). But after granting a motion for

reconsideration filed by the Director of the Office of Workers’ Com-

pensation Programs, the Board, en banc, vacated the December 21,

1989 decision and remanded the case to the ALJ after reevaluating the

standard used in this circuit for determining causation in black lung

cases. Scott v. Mason Coal Co., BRB No. 88-1838 BLA (Jun. 22,

1990) (en banc). The Board overruled its precedent and changed the

causation standard to require that a claimant need only prove that

pneumoconiosis was a contributing cause of his disability, instead of

the sole cause. Even under this new standard, the ALJ denied Scott’s

claim on remand, and the Board subsequently affirmed that decision.

Scott v. Mason Coal Co., BRB No. 88-1838 BLA (Oct. 10, 1991),

aff’d, BRB No. 92-0312 BLA (Aug. 6, 1993). Scott then appealed that

decision to the Fourth Circuit.

On August 10, 1995, we issued a published opinion in this case

finding that the ALJ committed error in refusing to consider a listing

of Scott’s physical limitations found in Dr. Kelly Taylor’s report

when determining whether Scott was totally disabled. Scott, 60 F.3d

at 1139. We remanded the case to the Board with instructions for it

true doubt rule to resolve all doubt concerning the X-ray evidence in the

claimant’s favor and after finding support in Dr. Taylor’s and Dr. Joseph

P. Smiddy’s opinions. The Supreme Court later rejected the true doubt

rule in Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 280-81

(1994). The Board, however, affirmed the pneumoconiosis finding

despite the ALJ’s use of the true doubt rule because Mason Coal did not

challenge the ALJ’s alternative basis for his decision based on the doc-

tor’s opinions. The Board decided in the decision at issue here that Dr.

Smiddy’s opinion was weakened because of his reliance on an invali-

dated pulmonary function study. However, Mason Coal has not raised

this issue here, and we consider it finally determined that Scott’s has

pneumoconiosis as a direct result of his coal mine employment.

4 SCOTT v. MASON COAL COMPANY

to remand the case to an ALJ on two narrow issues: (1) whether the

ALJ could find that Scott was totally disabled after reconsidering Dr.

Taylor’s report as a reasoned medical opinion and (2) whether, if the

ALJ found that Scott was totally disabled, Scott’s disability was

caused at least in part by pneumoconiosis. Scott, 60 F.3d at 1141-42.

After our remand and a subsequent remand order from the Board,

the ALJ re-opened the record to allow the parties to submit further

evidence concerning both the extent of Scott’s disability and the

causes of his disability. The ALJ issued an opinion on April 5, 1996

again denying Scott benefits on the basis that the medical evidence

did not establish that Scott was totally disabled. Scott v. Mason Coal

Co., BRB No. 92-312-BLA (Apr. 5, 1996). In reaching this decision,

the ALJ did not consider the additional evidence submitted after he

re-opened the record because he found it was superfluous. Scott

appealed this decision to the Board, and it decided that the ALJ erred

by not considering the additional evidence admitted after remand.

Scott v. Mason Coal Co., BRB No. 96-0995 (Apr. 28, 1997). Thus,

the Board remanded the case back to the ALJ for reconsideration in

light of all the relevant evidence submitted in the record.

In the course of his claim, Scott was examined by or presented

medical evidence from five different physicians. Three of those physi-

cians’ findings are relevant to this appeal,2 and we set them forth in

some detail here. Dr. Kelly Taylor examined Scott on April 17, 1994

and determined that Scott has pneumoconiosis related to coal dust

exposure from Scott’s coal mine employment. Dr. Taylor also pro-

vided a list of Scott’s physical limitations, which we determined was

a reasoned medical opinion in Scott’s prior appeal to this court. Scott,

60 F.3d at 1141.

Dr. Abdul Dahhan provided an expert opinion on Scott at the

request of Mason Coal. Dr. Dahhan examined Scott on two different

occasions, provided an opinion based on a review of all of Scott’s

medical records, and presented deposition testimony. On his first

examination of Scott in 1985, Dr. Dahhan diagnosed Scott with sim-

2

Scott has not appealed with respect either the ALJ’s or the Board’s

decisions concerning the remaining two physicians whose opinions were

relevant to the past administrative decisions.

SCOTT v. MASON COAL COMPANY 5

ple pneumoconiosis, but found that Scott has no disability due to the

disease. After a review of all the medical evidence in the case in

1987, Dr. Dahhan changed his opinion and found insufficient evi-

dence that Scott has pneumoconiosis. After a second examination of

Scott in 1995, Dr. Dahhan again found insufficient evidence to diag-

nose pneumoconiosis, instead he diagnosed Scott with a moderate

obstructive airway disease caused by his long history of tobacco use

and exacerbated by his severe cardiac disease. Dr. Dahhan opined that

Scott is totally disabled because of his airway disease.

In a 1996 report completed after reviewing all the medical evidence

in the case at the request of Mason Coal, Dr. James R. Castle opined

that Scott does not have pneumoconiosis. Dr. Castle did find that

Scott has pulmonary difficulties and breathing problems caused by

tobacco use and cardiac diseases. Dr. Castle concluded in the report

that Scott is totally disabled due to his coronary artery disease. In a

later deposition, Dr. Castle further stated that he disagreed with Dr.

Dahhan and found that Scott is not totally disabled from a respiratory

standpoint.3

All of this evidence was before the ALJ on the latest remand in this

case, and the ALJ again determined that the evidence in the record

was insufficient to establish that Scott is totally disabled. Scott v.

Mason Coal Co., BRB No. 96-0995 BLA (Jan. 30, 1998). The ALJ

gave the greatest weight to the opinions of Dr. Castle and Dr. Dahhan.

While the ALJ set forth Dr. Taylor’s findings, he discounted them as

"not well-reasoned" because Dr. Taylor failed to provide an explana-

tion, objective tests, or any documentation to support his diagnosis.

The ALJ went further and determined that even assuming Scott was

totally disabled, his disability was not due even in part to pneumoco-

niosis. The ALJ also relied on Dr. Dahhan’s and Dr. Castle’s opinions

in making this determination despite the fact that neither doctor diag-

nosed Scott with pneumoconiosis. The ALJ explained this position by

noting that because both doctors stated that their opinions would not

change even if they assumed Scott had pneumoconiosis, they could

3

Dr. Castle stated that he believed Dr. Dahhan reached an erroneous

conclusion because Dr. Dahhan based his opinion of disability on an

invalid test.

6 SCOTT v. MASON COAL COMPANY

be probative on the causation issue. Scott appealed this decision to the

Board.

In the decision before us today, the Board affirmed the ALJ’s latest

denial of benefits to Scott. Scott v. Mason Coal Co., BRB No. 98-

0660 BLA (Mar. 17, 1999). While the Board acknowledged that the

ALJ did not follow our instructions to consider Dr. Taylor’s opinion

as a reasoned medical opinion, it found sufficient basis to affirm the

ALJ’s decision based on the ALJ’s alternative holding that Scott’s

disability is not caused in any part by pneumoconiosis. On the causa-

tion determination, the Board found that the ALJ could credit Dr.

Dahhan’s and Dr. Castle’s opinions even though they did not diag-

nose Scott with pneumoconiosis. The Board found sufficient support

for the decision to credit those opinions because the ALJ found the

doctors would have reached the same decision had Scott been diag-

nosed with pneumoconiosis; the ALJ found the opinions clear, docu-

mented, and persuasive; and the Board observed that both doctors are

board certified in internal medicine and pulmonary diseases.

II.

As we noted in our previous decision, Scott has established that he

has pneumoconiosis arising out of his coal mine employment. Scott,

60 F.3d at 1140. Scott has raised the same two questions we identified

in our past decision for our review on this appeal: whether the ALJ

correctly decided that Scott is not totally disabled and whether the

ALJ correctly determined that Scott has no disability from pneumoco-

niosis. We review the Board’s decision upholding the ALJ’s decision

to determine whether it correctly found that the ALJ’s factual findings

were supported by substantial evidence in the record. Scott, 60 F.3d

at 1140. To do so, we review the record independently, assessing the

ALJ’s decision under the substantial evidence standard. Toler, 43

F.3d at 114. Substantial evidence consists of sufficient relevant evi-

dence to convince a reasonable mind that the evidence is adequate to

support a conclusion. Milburn Colliery Co. v. Hicks, 138 F.3d 524,

528 (4th Cir. 1998) (quoting Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229 (1938)). We review the Board’s conclusions of law de

novo. Scott, 60 F.3d at 1140.

SCOTT v. MASON COAL COMPANY 7

III.

First, Scott argues that the Board should not have affirmed the

ALJ’s decision because, as acknowledged by the Board, the ALJ did

not follow our instructions on remand to consider Dr. Taylor’s listing

of physical limitations as a reasoned medical opinion. A lower court

must comply with the mandate of a higher court. See United States

v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). Thus, when we remand a case,

the lower court must "implement both the letter and spirit of the . . .

mandate." Bell, 5 F.3d at 66 (internal quotations and citations omit-

ted). This rule applies with equal authority and weight to the Board

and to the ALJ as administrative agencies. See Hyatt v. Heckler, 807

F.2d 376, 379 (4th Cir. 1986); 18 Charles Alan Wright et al., Federal

Practice and Procedure § 4478, at 794 (1981).

While the ALJ gave lip service to Dr. Taylor’s opinion, in the end,

the ALJ concluded that Dr. Taylor’s opinion was not well-reasoned

— in direct contradiction to our mandate that the ALJ consider the

opinion as reasoned. For this reason, the ALJ’s opinion on total dis-

ability cannot be supported by substantial evidence because the ALJ

did not consider all the evidence in the record as required by this

court’s mandate. The Board did not make an explicit finding as to

Scott’s total disability because it based its decision to affirm the

denial of benefits on the ALJ’s determination that Scott could not

establish that any disability is due to pneumoconiosis. However, the

Board did note in its causation discussion that both Dr. Dahhan and

Dr. Castle indicated that Scott was totally disabled. The record con-

firms that finding.4 Once this court takes Dr. Taylor’s limitations

4

Dr. Castle did, however, opine that from a respiratory standpoint only,

Scott was able to return to his previous coal mine employment. He

explained his disagreement with Dr. Dahhan by indicating that the study

Dr. Dahhan relied on for his opinion was invalid. We believe this criti-

cism of Dr. Dahhan’s report goes to its overall weight only, and our bal-

ancing of the evidence would still have the same result because of the

uncontradicted validity of Dr. Taylor’s report. At most, we have a report

of questionable validity (Dr. Dahhan), one of unquestioned validity (Dr.

Taylor), and one that is valid, but with an opposite conclusion (Dr. Cas-

tle). Under these circumstances, we still cannot find that substantial evi-

dence supports the proposition that Scott is not totally disabled.

8 SCOTT v. MASON COAL COMPANY

properly into account along with Dr. Dahhan’s opinion, we are of

opinion that substantial evidence cannot support a finding that Scott

is not totally disabled. Thus, the Board was required to reverse the

ALJ’s finding and determine that Scott is totally disabled on this

record.

IV.

While the ALJ erred in refusing to consider Dr. Taylor’s opinion

in accordance with our orders on remand, the ALJ did provide an

independent basis for denying Scott’s claim — that Scott failed to

establish that his disability is caused even in part by pneumoconiosis.

In order to receive benefits, a claimant must establish under 20 C.F.R.

Part 718 both that he is totally disabled and that his disability is

caused at least in part by pneumoconiosis. 20 C.F.R. §§ 718.201-.204;

see Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998).

Therefore, if the ALJ’s opinion on causation is supported by substan-

tial evidence, Scott would still not be entitled to benefits regardless

of the ALJ’s errors concerning the determination of total disability.

Scott argues that the ALJ and the Board violated the rule set forth

in Toler v. Eastern Associated Coal Co., 43 F.3d 109 (4th Cir. 1995),

by relying on Dr. Dahhan’s and Dr. Castle’s opinions regarding cau-

sation because neither doctor had diagnosed Scott with pneumoconio-

sis — in direct contradiction to the ALJ’s finding. The Board upheld

the ALJ’s consideration of both doctors’ opinions because both doc-

tors stated that their opinion would not change if Scott had pneumo-

coniosis and because both doctors’ opinions were clearly stated, fully

documented, and highly persuasive. The Board also found that the

ALJ could credit their opinions because both doctors were Board-

certified in internal medicine and pulmonary diseases.

In Toler, we considered an ALJ’s finding that the claimant had not

established causation based on the opinions of doctors who did not

diagnose the claimant with pneumoconiosis. Toler, 43 F.3d at 115.

Recognizing that we had disapproved the use of such evidence in

analogous circumstances in Grigg v. Director, OWCP, 28 F.3d 416

(4th Cir. 1994), we determined that

an ALJ who has found (or has assumed arguendo) that a

claimant suffers from pneumoconiosis and has total respira-

SCOTT v. MASON COAL COMPANY 9

tory disability may not credit a medical opinion that the for-

mer did not cause the latter unless the ALJ can and does

identify specific and persuasive reasons for concluding that

the doctor’s judgment on the questions of disability causa-

tion does not rest upon her disagreement with the ALJ’s

finding as to either or both of the predicates in the causal

chain.

Toler, 43 F.3d at 116. While we did not go so far as to determine that

such opinions were "wholly lacking in probative value," we did find

that they "can carry little weight." Toler, 43 F.3d at 116.

We evaluated similar questions in Hobbs v. Clinchfield Coal Co.,

45 F.3d 819 (4th Cir. 1995) (Hobbs II), and in Dehue Coal Co. v. Bal-

lard, 65 F.3d 1189 (4th Cir. 1995). In both Hobbs II and Ballard, the

ALJ relied on evidence from doctors who did not diagnose the claim-

ant with coal miner’s pneumoconiosis to decide that the claimant had

not established the causation element. Ballard, 65 F.3d at 1195;

Hobbs II, 45 F.3d at 821. In both cases we found, however, that this

reliance was appropriate because the doctors’ opinions that the claim-

ant did not have coal miner’s pneumoconiosis did not necessarily con-

tradict the ALJ’s determination that the claimant had legal

pneumoconiosis. Ballard, 65 F.3d at 1195; Hobbs II, 45 F.3d at 821-

22. We focused on the fact that the legal definition of pneumoconiosis

is much broader than the medical definition and that coal worker’s

pneumoconiosis is only one of the diseases that qualifies a claimant

for benefits under the legal definition. Ballard, 65 F.3d at 1193;

Hobbs II, 45 F.3d at 821. Thus, because the doctors had diagnosed the

claimants with or found symptoms consistent with legal pneumoconi-

osis, if not coal worker’s pneumoconiosis, the ALJ could properly

rely on their opinions despite our decision in Toler. Ballard, 65 F.3d

at 1195; Hobbs II, 45 F.3d at 822; see Piney Mountain Coal Co. v.

Mays, 176 F.3d 753, 761-72 (4th Cir. 1999) (allowing an ALJ to rely

on a doctor’s opinion that rejected a particular diagnosis of pneumo-

coniosis because that doctor’s opinion did not necessarily contradict

the ALJ’s legal finding of pneumoconiosis).

We are of opinion that the decisions in Hobbs II and Ballard are

distinguishable from the facts at issue in this case. Instead, the facts

in this case are nearly identical to those in Toler. Both Dr. Dahhan

10 SCOTT v. MASON COAL COMPANY

and Dr. Castle opined that Scott did not have legal or medical pneu-

moconiosis, did not diagnose any condition aggravated by coal dust,

and found no symptoms related to coal dust exposure. Thus, their

opinions are in direct contradiction to the ALJ’s finding that Scott

suffers from pneumoconiosis arising out of his coal mine employ-

ment, bringing our requirements in Toler into play. Under Toler, the

ALJ could only give weight to those opinions if he provided specific

and persuasive reasons for doing so, and those opinions could carry

little weight, at the most.

While we believe that the ALJ did not provide sufficient specific

and persuasive reasons to credit Dr. Dahhan and Dr. Castle, we need

not belabor that point because even if the ALJ had provided sufficient

rationale for crediting their opinions, we are of opinion that the ALJ

accorded those opinions far more than the little weight they are

allowed under Toler. The ALJ in fact relied exclusively on Dr. Dah-

han’s and Dr. Castle’s opinions in his causation analysis.5 The ALJ

gave little, if any weight, to Dr. Taylor’s opinion. Two opinions that

may hold no weight, or at most may hold the little weight allowed by

Toler, cannot suffice as substantial evidence to support the ALJ deter-

mination that Scott’s respiratory impairment was not caused at least

in part by pneumoconiosis. This is especially true when one causation

opinion based on the proper diagnosis, even a poorly documented

one, links the disability to pneumoconiosis. The evidence in the

record suggests only three sources for Scott’s impairment: pneumoco-

niosis, cigarette smoking, and cardiac problems. We cannot find sub-

stantial evidence to show that pneumoconiosis can be eliminated

completely as a cause. The only evidence that may be given substan-

tial weight indicates that pneumoconiosis is the cause of Scott’s dis-

ability; therefore, we reverse the Board’s decision affirming the ALJ’s

opinion on causation as not supported by substantial evidence.

V.

Scott has requested this court to remand with orders to award bene-

fits. Upon our review of the record, no substantial evidence can sup-

port a finding that Scott is not totally disabled. Additionally, there is

5

Scott did not appeal the ALJ’s decision to give little weight to Dr.

Patrick Molony’s opinion.

SCOTT v. MASON COAL COMPANY 11

no substantial evidence to dispute any causative contribution of pneu-

moconiosis to Scott’s disability. Under these circumstances, an ALJ

must find that Scott is totally disabled due to pneumoconiosis. Thus,

we reverse the Board’s order denying benefits and remand with an

order to award benefits without further administrative proceedings

because on this record, only one factual conclusion is possible estab-

lishing Scott’s entitlement to benefits. See Curry v. Beatrice Poca-

hontas Coal Co., 67 F.3d 517, 524 (4th Cir. 1995); Barber v.

Director, OWCP, 43 F.3d 899, 901 (4th Cir. 1995); Adkins v. Direc-

tor, OWCP, 958 F.2d 49, 52-53 (4th Cir. 1992) (awarding benefits

after resolving conflicts in medical evidence); see also Mancia v.

Director, OWCP, 130 F.3d 579, 593-94 (3d Cir. 1997).6

REVERSED AND REMANDED WITH INSTRUCTIONS

6

Both Curry and Greer involved a presumption that we found the

employer could not properly rebut, necessitating an award of benefits.

However, the same logic applies in cases, like this one, not involving

presumptions and requires an award of benefits if we find no substantial

evidence could support an opposite conclusion.